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UNIVERSITY OF N.C. AT CHAPEL HILL 
 
 00033977260 
 
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 e taken from the 
 sbrary building. 
 
Digitized by the Internet Archive 
 
 in 2010 with funding from 
 
 Ensuring Democracy through Digital Access (NC-LSTA) 
 
 http://www.archive.org/details/digestofallrepor18744batt 
 
A DIGEST 
 
 OP ALL THE REPORTED CASES, 
 
 BOTH IN LAW AND EQUITY, 
 
 DETERMINED IN THE 
 
 SUPREME COURT 
 
 OF 
 
 NORTH CAROLINA 
 
 COMMENCING WITH 
 
 PHILLIPS' LAW REPORTS AND PHILLIPS' LQUITY REPORTS, 
 
 AND ENDING WITH THE 
 
 70TH NORTH CAROLINA REPORTS; 
 
 TOGETHER WITH 
 
 A TABLE OF THE NAMES OF THE CASES. 
 
 prepared bt 
 
 ■WILIjIAM kc. battle, 
 
 Formerly a Judge of the Supreme Court. 
 
 IN ONE VOLUME, 
 
 To be known as the 4^ Volume of Battle's Digest. 
 
 RALEIGH: 
 
 JOHN NICHOLS & CO., BOOK AND JOB PRINTERS. 
 
 1874. 
 
e M5.S- 
 
TITLES OF THE REPORTS, 
 
 DIGESTED IN THIS VOLUME, 
 
 With the Abbreviations by which they are designated. 
 
 TITLES OF THE REPORTS. 
 
 Phillips' Law Reports, 
 Phillips' Equity Reports, 
 63d North Carolina Reports, 
 64th North Carolina Reports, 
 65th North Carolina Reports, 
 66th North Carolina Reports, 
 67th North Carolina Reports, 
 68th North Carolina Reports, 
 69th North Carolina Reports, 
 70th North Carolina Reports, 
 
 WHEN PUBLISHED. 
 
 ABBREVIATIONS, 
 
 1868, 
 
 Phil. L. R. 
 
 1868, 
 
 Phil. Eq. R 
 
 1869, 
 
 63 N. C. R. 
 
 1870, 
 
 64 N. C. R. 
 
 1871, 
 
 65 N. C. R. 
 
 1872, 
 
 66 N. C. R. 
 
 1872, 
 
 67 N. C. R. 
 
 1873, 
 
 68 N. C. R. 
 
 1873, 
 
 69 N. C. R. 
 
 1874, 
 
 70 N. C. R. 
 
OP THE 
 
 SU PR EME COURT, 
 
 DURING THE TIME COMPRISED IN THIS VOLUME. 
 
 JUDGES OF THE SUPREME COURT, BEFORE JULY, 1868 : 
 
 RICHMOND M. PEARSON, Chief-Justice, 
 WILLIAM H. BATTLE, EDWIN G. READE. 
 
 JUDGES OF THE SUPERIOR COURTS, BEFORE JULY, 1868: 
 
 DAVID A. BARNES, ANDERSON MITCHELL, 
 
 EDWARD J. WARREN, WILLIAM M. SHIPP, 
 
 DANIEL G. FOWLE, AUGUSTUS S. MERRIMON, 
 
 ROBERT B. GILLIAM, ALEXANDER LITTLE, 
 
 RALPH P. BUXTON, CLINTON A. CLLLEY. 
 
 Judge Merrimon resigned iu August, 1867, and was succeeded by 
 Judge Little. Judge Fowle resigned in November, 1867, and was suc- 
 ceeded by Judge Cilley. 
 
 JUDGES OF THE CRIMINAL COURTS : 
 
 OLIVER P. MEARS, Wilmington. GEORGE GREEN, Newbern. 
 
 JUSTICES OF THE SUPREME COURT, SINCE JULY 1ST, 1868 : 
 
 RICHMOND M. PEARSON, Chief -Justice, 
 EDWIN G. READE, THOMAS SETTLE,* 
 
 WILLIAM B. RODMAN, NATHANIEL BOYDEN,* 
 
 ROBERT P. DICK,* THOMAS SETTLE,* 
 
 WILLIAM P. BYNUM.* 
 ♦Justice Settle resigned in April, 1871, and in May of the same year 
 Justice Boyden was appointed to succeed him. Justice Dick resigned 
 in July, 1872, and Justice Settle was appointed in December following 
 to succeed him. Justice Boyden died in November, 1873, and Justice 
 Bynuni was appointed in the same month to succeed him. 
 
JUDGES OF THE SUPERIOR COURTS, SINCE JULY 1, 1868 r 
 
 FIRST CLASS. 
 
 ♦CHARLES C. POOL, 1st Dis. 
 *CHAS. R. THOMAS, 3d " 
 DANIEL L. RUSSELL, 4th " 
 RALPH P. BUXTON, 5th " 
 ALBION W. TOURGEE, 7th " 
 GEORGE W. LOGAN, 9th " 
 ♦WILLIAM J. CLARKE, 
 ♦JONATHAN W. ALBERTSON. 
 
 6ECOND CLASS. 
 
 ♦EDMUND W. JONES, 2d Dis 
 
 SAMUEL W. WATTS, 6th * 
 
 JOHN M. CLOUD, 8th ' 
 
 AND. MITCHELL, 10th ' 
 
 JAMES L. HENRY, 11th ' 
 
 RILEY H. CANNON, 12th « 
 ♦WILLIAM A. MOORE. 
 
 ♦Judge Thomas resigned in November, 1871, and Judge Clarke was 
 appointed to succeed him. 
 
 Judge Jones resigned in March, 1871, and Judge Moore was appoint, 
 ed to succeed him. 
 
 Judge Pool resigned in April, 1872, and Judge Albertson was ap- 
 pointed to succeed him. 
 
 JUDGE OF THE CRIMINAL COURT : 
 
 WILMINGTON, - - - EDWARD CANTWELL. 
 
INDEX -VOL. IV. 
 
 ABATEMENT. pages 
 
 1. By the death of parties, 1 
 
 2. For what cause to be pleaded, 2 
 
 ACCORD AND SATISFACTION, 2 
 
 ACCOUNT, 3 
 
 ACTION ON THE CASE. 
 
 1. When the action is sustainable, 3 
 
 2. For deceit, 5 
 
 ACT OF ASSEMBLY. (See Statutes,) 5 
 
 AGENT AND PRINCIPAL. 
 
 1. Who is an agent, 6 
 
 2. What an agent may or may not do, 6 
 
 3. Of the liability of a principal for the acts of his agent and 
 
 for notice to him, 6 
 
 4. Of the liability of an agent, 9- 
 
 5. Factor, 9 
 
 AMENDMENT. 
 
 1. Of the records, 10 
 
 2. Of the pleadings and proceedings, 12 
 
 3. In the Supreme Court, 14 
 
 AMNESTY, 15 
 
 APPEAL. 
 
 1. From the County to the Superior Court, 17 
 
 2. From a Justice to the Superior Court, 17 
 
 3. From the Clerk or Judge of Probate to the Superior Court, 18 
 
 4. From the Superior to the Supreme Court, IS 
 
 APPRENTICES, 2& 
 
 ARBITRATION AND AWARD. 
 
 1. When to be sustained or set aside, 27 
 
 2. Construction of awards and remedy thereon, 28 
 
 ARREST, 30 
 
 ARSON 31 
 
 ASSAULT AND BATTERY 31 
 
 ASSIGNMENT IN EQUITY, 35 
 
 ASSUMPSIT 35 
 
 ATTACHMENT. 
 
 1. Original and under C. C. P., 36 
 
 2. Garnishee summoned, 39 
 
 3. Judicial attachment, 40 
 
 4. In equity, 40 
 
 5. Under the liens of laborers and others, 41 
 
VIII INDEX.— VOL. IV. 
 
 PAGES 
 
 ATTORNEY AT LAW,.. 41 
 
 AUDITOR OF THE STATE, 43 
 
 BAIL, 43 
 
 BAILMENT, 44 
 
 BANKRUPTCY, 45 
 
 BANKS AND BANK NOTES, 48 
 
 BASTARDY, 51 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES 53 
 
 BONDS. 
 
 1. Of their execution, 57 
 
 2. Of the ratification of bonds, 57 
 
 3. Of transfer of bonds, 57 
 
 4. Of the consideration of bonds, 59 
 
 6. Bond given for the hire or price of slaves, 60 
 
 7. Of the construction of bonds and their conditions, 60 
 
 BOUNDARY, 62 
 
 BURGLARY, 63 
 
 CARTWAY, 64 
 
 CERTIORARI, 64 
 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY, 65 
 
 CLAIMS AGAINST THE STATE, 67 
 
 CLERKS AND MASTER, 68 
 
 CLERK OF THE SUPERIOR COURT, 69 
 
 CODE OF CIVIL PROCEDURE, 70 
 
 COLOR OF TITLE, 71 
 
 COMMON CARRIERS, 72 
 
 COMPROMISE, 75 
 
 CONFEDERATE MONEY, 75 
 
 CONSTABLES, 81 
 
 CONSTITUTION, 82 
 
 CONTEMPT, 92 
 
 CONTRACTS. 
 
 1. Construction of contracts and their enforcement, 96 
 
 2. Sale of personal chattels, 106 
 
 3. As affected by the statute of frauds, 108 
 
 4. Void and voidable contracts, 109 
 
 CORONER, n0 
 
 CORPORATION, HI 
 
 COSTS. 
 
 1. By whom to be paid, 112 
 
 2. Security for costs and suits in forma pauperis, 114 
 
 COUNTER-CLAIM, 1*5 
 
 See (Pleading— Counter-claim.) (Set-off— Att. Law, 6, 7, 8.) 
 
 COUNTIES AND COUNTY COMMISSIONERS, 115 
 
 COUNTY TREASURER, H7 
 
INDEX.— YOL. IV. IX 
 
 PAGES 
 
 COVENANT, 117 
 
 CURTESY, 119 
 
 See (Husband and Wife — Husband's interest in his wife'3 pro- 
 perty, 2, 3.) 
 
 CUSTOM, 119 
 
 DAMAGES, 119 
 
 DEEDS. 
 
 1. Of the execution and date of a deed, 12d 
 
 2. Construction of deeds, 121 
 
 S. Of the operation of a deed, and when they may be avoided, 124 
 4. Deeds in trust, 126 
 
 DESCENT, 126 
 
 DEVISE. 
 
 1. Construction or to what passes and who takes, 127 
 
 2. Power to sell real estate, 132 
 
 3. For charitable uses, 132 
 
 DIVORCE AND ALIMONY,, 132 
 
 DRAINING WET LANDS, 134 
 
 EJECTMENT. 
 
 1. Of the title necessary to support the action, 135 
 
 2. Actions for real estate under the Code of Civil Procedure, . . 138 
 
 3. Defendant's bond, 139 
 
 4. Writ of possession, 139 
 
 5. Trespass for mesne profits, 140 
 
 ELECTION 140 
 
 EMANCIPATION, 140 
 
 EMBLEMENTS, 143 
 
 ENTRY, 143 
 
 ESTOPPEL. 
 
 1. By record, 143 
 
 2. In pais and by deed, 144 
 
 EVIDENCE. 
 
 1. Its competency or incompetency, 146 
 
 2. How witnesses are to be examined, 150 
 
 3. Impeaching the credibility of witnesses, 151 
 
 4. Depositions, 152 
 
 5. Hearsay and common reputation, 152 
 
 6. Experts and others expressing opinions 153 
 
 7. Proof of the character of a party, 154 
 
 8. Its relevancy or irrelevancy, 154 
 
 9. Parol evidence, when admissible, 156 
 
 10. Admissions, declarations and acts of parties and privies, .... 158 
 
 1 1 . Public documents, 160 
 
 12. Records of court and records and by-laws of corporations, . . 160 
 
 13. Proof of official bonds, 160 
 
X INDEX.— VOL. IV. 
 
 EVIDENCE.— (Continued ) pages 
 
 14. Books of entries, accounts, receipts, orders, &c, 161 
 
 15. Confessions, 162 
 
 16. Dying declarations, 163 
 
 17. In criminal proceedings and indictments, 166 
 
 18. In cases relating to wills and testaments, 173 
 
 19. When evidence is or is not required, 17± 
 
 20. On whom is placed the burden of proof, 174 
 
 21 . When the jury is to decide upon its effect,. 174 
 
 22. Who to decide upon its competency, 175 
 
 23. Grounds of objection to evidence to be stated, 175 
 
 EXCHANGE OF RAILWAY BONDS, 175 
 
 EXECUTION. 
 
 1. When to issue and its teste, 176 
 
 2. When to be issued from the Supreme and be made returnable 
 
 to the Superior Court, 176 
 
 3. What may be levied on and sold under execution, 177 
 
 4. Levy, sale and application of the money raised, 178 
 
 5. Lien and priority of executions, 179 
 
 6. What may be received under an execution, 181 
 
 7. Supplemental proceedings, 181 
 
 8. Irregular and void executions, how set aside, 184 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 1. Who entitled to administration, . ■ .... 185 
 
 2. What interest they take in the estate, 186 
 
 3. Administrator de bonis non, 186- 
 
 4. Executor de son tort, 187 
 
 5. In another State, what they may do in this State, 187 
 
 6. Of the effect of making a debtor executor, 187 
 
 7. Of co-executors and administrators, 188 
 
 8. Of sales by them and their purchaser at their own sales, . . . 188 
 
 9. Of suits by them, 189 
 
 10. Of the giving them time to plead, 189 
 
 11. Of the sale of land for assets, 189- 
 
 12. Of their liability to creditors, 196 
 
 13. Of their liability to legatees and next of kin, 202 
 
 14. Of distribution and advancements, 204 
 
 15. Refunding bonds, 205 
 
 16. Commissions, 205 
 
 EXTRADITION, 205 
 
 FACTOR 206 
 
 FALSE TOKENS, 206 
 
 FENCES, 206 
 
 FERRY, 207 
 
 FIXTURES, 207 
 
 FORCIBLE TRESPASS, 20S 
 
INDEX.— VOL. IV. XI 
 
 PAGES 
 
 FORCIBLE ENTRY AND DETAINER, 210 
 
 FOREIGN JUDGMENT, 211 
 
 FORGERY, 211 
 
 FRAUD. 
 
 1. In conveyances, 213 
 
 2. In auction sales, 218 
 
 FUGITIVE FROM JUSTICE, 218 
 
 GAMING, 219 
 
 GRANT, 219 
 
 GUARANTY, 220 
 
 GUARDIAN AND WARD. 
 
 1. Powers, duties and liabilities of guardians, 220 
 
 2. Suit on guardian bond, 229 
 
 HABEAS CORPUS, 230 
 
 HIGHWAY, 231 
 
 HOMESTEAD AND PERSONAL PROPERTY EXEMPTION, . . . 2; 2 
 
 HOMICIDE, 215 
 
 HUSBAND AND WIFE. 
 
 1 . Of marriage, 238 
 
 2. Husband's interest in his wife's property, 239 
 
 3. Wife's power over her separate estate, 239 
 
 4. Agreement between husband and wife, 240 
 
 5. Conveyances by them, 241 
 
 6. When wife is supposed to act under husband's coertion, .... 243 
 
 INDIANS, 243 
 
 INDICTMENT. 
 
 1. When an indictment will lie or not, 244 
 
 2. Time in which an indictment will lie, 245 
 
 3. Quashing indictments, 246 
 
 4. Form and matters relating thereto, 247 
 
 5. Plea of former acquittal or conviction, 252 
 
 6. Removal of, into the United States Courts, 252 
 
 7. Of the trial, verdict and judgment, 253 
 
 INFANCY, 2G0 
 
 INJUNCTIONS. 
 
 1. When to be granted, and the practice in injunctions, 261 
 
 2. Of the injunction bond, 269 
 
 INSANITY, 269 
 
 INSOLVENT DEBTORS, 269 
 
 INSTITUTION FOR THE DEAF AND DUMB AND THE BLIND, 270 
 
 INSURANCE, 271 
 
 INTEREST 272 
 
 JUDGMENTS. 
 
 1. Confession of judgment, 274 
 
 2. Judgment default, 274 
 
XII INDEX.— VOL. IV. 
 
 JUDGMENTS.— (Continued.) pages 
 
 3. On joint and several notes, 274 
 
 4. Judgments against executors, administrators and heirs, 274 
 
 5. Interlocutory judgment, 275 
 
 6. Docketing judgments and its effect, 275 
 
 7. In what solvable, 278 
 
 •'8. Satisfaction of judgments, 278 
 
 9. Of the effect of a judgment, 279 
 
 10. Of proving and enforcing judgments, 280 
 
 11. Of dormant, irregular, void and erroneous judgments, 281 
 
 "12. Of vacating judgments, 282 
 
 13. Petition to re-hear judgments, 290 
 
 JUDGES EXCHANGING DISTRICTS, ...... ........ 290 
 
 JUDGES OF THE SUPERIOR COURTS, 291 
 
 JURISDICTION. 
 
 1. Of Justices of the Peace in civil cases, 292 
 
 2. Of Justices of the Peace in criminal matters, 293 
 
 3. Of the Clerk and Probate Judge, 295 
 
 4. Of the Superior Court in term, or of the Judge, 298 
 
 ■ 5. Of the Superior Court in criminal matters, 300 
 
 l 8. Of Courts of Equity, 301 
 
 7. Of the Federal Courts, 304 
 
 8. Concurrent jurisdiction of courts, 305 
 
 JURY. 
 
 1. Of challenges to the jury, 305 
 
 2. Of the pay of jury, 307 
 
 3. Of the grand jury, 307 
 
 LANDLORD AND TENANT, 307 
 
 LARCENY, 309 
 
 LEGACY. 
 
 1. Construction as to what'possess and who takes, 313 
 
 2. Specific or general and of the abatement of legacies, 319 
 
 3. Whether vested, contingent or executory, 320 
 
 4. When a charge upon a real estate, 320 
 
 5. Of debts charged upon lands, 321 
 
 6. Bequest of the residue, 322 
 
 7. Lapsed and void legacies, 323 
 
 8. Of the assent of the executor and its effect, 324 
 
 LICENSE, 325 
 
 LLEN OF LABORERS AND OTHERS, 325 
 
 LIMITATIONS AND LAPSE OF TIME, 326 
 
 LIS PENDENS, 328 
 
 LOTTERY, 329 
 
 MALICIOUS PROSECUTION, 329 
 
 MANDAMUS, 330 
 
 MANSLAUGHTER 334 
 
INDEX.— VOL. IV. XIII 
 
 PAGES 
 
 MARSHALLING 335 
 
 MILITARY ORDERS 335 
 
 MILLS, 335 
 
 MINES, 337 
 
 MISCEGENATION, 337 
 
 MISTAKE 337 
 
 MORTGAGE 338 
 
 MUNICIPAL CORPORATIONS 342 
 
 NATURALIZATION, 342 
 
 NEGLIGENCE, 343 
 
 NEW TRIAL, 343 
 
 NOTICE 346 
 
 OFFICE AND OFFICER 346 
 
 ORDINANCES OF THE CONVENTION 350 
 
 OVERSEER 350 
 
 PARDON 351 
 
 PARTITIONS 351 
 
 PARTNERSHIP 352 
 
 PAYMENT 355 
 
 PENITENTIARY 357 
 
 PERJURY 357 
 
 PLEADING. 
 
 1. General principles of pleading 358 
 
 2. Verification, 359 
 
 3. Parties 359 
 
 4. Form of action, 362 
 
 5. Joinder of causes of action, 363 
 
 6. Plea of nul tiel record, 364 
 
 7. Under the Code of Civil Procedure, ... 364 
 
 8. Of the complaint or declaration, 365 
 
 9. Of the pleas and demurrer, 366 
 
 10. Plea of a former suit 369 
 
 11. Counter-claim, 369 
 
 12. Or the venue 372 
 
 13. Of the verdict and judgment 374 
 
 14. What is cured by a verdict, 375 
 
 PLEADING IN EQUITY. 
 
 1 . Bill of discovery 376 
 
 2. Bill to perpetuate testimony . 376 
 
 3. Scandal in pleading, 376 
 
 4. Decree, .377 
 
 PLEDGE 378 
 
 PROFESSION, 378 
 
 PRACTICE. 
 
 1. In equity, 379 
 
 2. Affidavits, 381 
 
 3. Appearance 382 
 
 4. Scire Facias, 382 
 
XIV INDEX— VOL. IV. 
 
 PKACTICE. -(Continued.) PAGE8 
 
 5. Discontinuance, 3g3 
 
 6. Non-suit, 3 g 3 
 
 7. Dismissing a suit, retraxit, 383 
 
 8. Consolidating suits, 334. 
 
 9. Demand of power, 334 
 
 10. Under the Code of Civil Procedure, 385 
 
 1 1. References, motions, orders, rules and notices, 386 
 
 12. Some miscellaneous rules of practice, 387 
 
 13. Parties, 3g 8 
 
 14. Of the trial and its incidents, 389 
 
 15. Submitting questions of fact to the jury, . 390 
 
 16. Judge's charge, 39 2 
 
 17. Motion in arrest of judgment _ 4 (j q 
 
 18. On appeals, 4(J0 
 
 19. In the Supreme Court, 40 ^ 
 
 PROCESS, " 403 
 
 PUBLIC LAW 405 
 
 PUBLIC PRINTING 410 
 
 PUBLIC TREASURER, ' ] " 410 
 
 RAILWAYS * 410 
 
 RAPE ' "//""/."'.'.:'.'.!".".".; , ..";".".4M 
 
 RECEIVER 4U 
 
 RECEIVING STOLEN GOODS, 414 
 
 RECOGNIZANCE, 4U 
 
 RECORD .......[....]'.'. 415 
 
 RECORDARI AND SUPERSEDEAS, 416 
 
 REFERENCE UNDER THE C. C. P ........[.. 418 
 
 REGISTRATION, . 423 
 
 RELEASE ...'...'.?. 423 
 
 RELIGIOUS CONGREGATION, 424 
 
 REMOVAL OF CAUSES TO THE FEDERAL COURTS 424 
 
 RENT ' 424 
 
 REPLEVIN, 425 
 
 RETAILERS OF SPIRITUOUS LIQUORS, ! 426 
 
 RIOT, [[[ 426 
 
 ROAD, 427 
 
 ROBBERY, 428 
 
 ROSIN .429 
 
 RULES OF PRACTICE, 429 
 
 SALES. 
 
 1. Judicial sales, 436 
 
 2. Sale of slaves 439 
 
 SCALE OF DEPRECIATION, 440 
 
 SCHOOL COMMITTEE ... 444 
 
 SET-OFF. 
 
 1. At law, 444 
 
 2. In equity, 446 
 
INDEX.— VOL. IV. XV 
 
 SHERIFF. PAGES 
 
 1. Election and terra of office, 447 
 
 2. Sales by sherifls and purchasers thereat, 448 
 
 3. Sheriff's return, 450 
 
 4. Interpleader for money in sheriff's hands 451 
 
 5. Liability of sheriffs and their sureties 452 
 
 6. Commissions and fees, 454 
 
 SLANDER, 454 
 
 SPECIAL COURTS IN CITIES AND TOWNS 455 
 
 SPECIFIC PERFORMANCE, 456 
 
 STAMPS, 456 
 
 STATUTES 457 
 
 STAY LAW 458 
 
 SUBROGATION, 458 
 
 SURET5T AND PRINCIPAL 4 59 
 
 TAXES AND TAXATION 4 63 
 
 TENANTS IN COMMON, 4 66 
 
 TENDER AND REFUSAL 4 67 
 
 TOWNS AND CITIES 4 69 
 
 TOWNSHIPS, 4 ? 1 
 
 TOWNSHIP TRUSTEES, 472 
 
 TRESPASS , 4 72 
 
 TROVER, 473 
 
 TRUSTS AND TRUSTEES 474 
 
 USURY 4 82 
 
 VAGRANCY 4 83 
 
 VENDOR AND PURCHASER, 484 
 
 WARRANTY, 487 
 
 WASTE, 488 
 
 "WIDOW. 
 
 1. Of her dower 488 
 
 2. Year's provision, 493 
 
 WILLS. 
 
 1. Attested wills 493 
 
 2 . Holograph wills, 494 
 
 3. Nuncupative wills 495 
 
 WITNESS, 495- 
 
DIGEST. 
 
 ABATEMENT. 
 
 I. By the death of parties. | II. For what cause to be pleaded. 
 
 I. BY THE DEATH OF PARTIES. 
 
 1. Where a party to a suit had died in June 1864: Held, 
 that under the ordinance of the Convention (23d June 1866) 
 providing that the time which had elapsed since September 
 1, 1861 should not be counted for the purpose of barring ac- 
 tions or presuming the abandonment or satisfaction of rights, 
 a judgment given at Fall Term, 1866, that such suit had 
 abated, was erroneous. Morris v. Avery, Phil. L. R. 238. 
 
 2. An action of Trespass, brought to recover damages 
 for a death caused by a wrongful act, (Rev. Code, c. 1, s. 9,) 
 does not abate by the death of the defendant. Collier v. 
 Arrington, Pbil. L. R. 356. 
 
 3. The Ordinance of the 23d June 1866 which changed 
 the jurisdiction of the courts, prevented an action from abat- 
 ing before or at Fall Term 1866, by the death of a defendant 
 in 1864 after the Fall Term of that year. Den v. Love, Phil. 
 L. R. 435. 
 
 4. The act of 1866-'T, c. 17, s. 8, which suspends the 
 operation of the statute of limitations, &c , until January 1st 
 1870, is neither a repeal, alteration nor modification of the 
 ordinance of June 23d 1866, within the meaning of those 
 terms as used in sec. 24 of that ordinance, prohibiting the 
 General Assembly from such action. Oliver v. Perry, Phil. 
 L. R. 58 L. 
 
 5. The provisions of that act prevent suits from abating 
 by the death of a party and the subsequent lapse of two 
 terms of the court, until after January 1st 1870. Ibid. 
 
 6. An action brought by a passenger against a Rail Road 
 Company, to recover damages tor injuries to her person, does 
 
2 ABATEMENT— II.— ACCOED & SATISFACTION 
 
 not abate by the death of the plaintiff. Peebles v. N. C. R. R., 
 63 N. 0. E. 238. 
 
 7. By virtue of the provisions of the act of 1871-'2, chap- 
 ter 30, parties have a right to have their suits heard, though 
 such suits may have abated through their own inadvertence 
 or from other causes. Long v. Holt, 68 1ST. 0. E. 53. 
 
 8. A suit that has abated by the death of the principal 
 in a Sheriff's bond, cannot be revived against the sureties, 
 when the original summons was never served on the sure- 
 ties. Irwin v. Lowrence, 70 N. 0. E. 282. 
 
 9. An action of Ejectment does not abate by the death 
 of the lessor of the plaintiff, and there is no necessity 
 to make the heirs of the lessor parties to the suit, except 
 to make such heirs liable for costs, the supposed lease being 
 in no way affected by the lessor's death. McLennon v. Mc- 
 Leod, 70 N. 0. E. 304. 
 
 10. Under 0. 0. P. sec. 64, sub, sees. 3 and 4, an action 
 does not abate by the plaintiff, unless so adjudged by the 
 Court. That section invests the presiding Judge with ple- 
 nary powers in the premises, which is not the subject of re- 
 vision by this Court, unless there appears an abuse of those 
 powers. Baggerly v. Colvert, 70 N. C. E. 688. 
 
 See (Widow — Year's Provision, 3.) 
 
 II. FOR WHAT CAUSE TO BE PLEADED. 
 
 1. A plea in abatement is the proper mode of taking ad- 
 vantage of a defect in the affidavit for an attachment. Barry; 
 v. (Sinclair, Phil. L. E. 7. 
 
 ACCORD AND SATISFACTION. 
 
 1. The principle is too well established and too long ac- 
 quiesced in to be disturbed, that an agreement by a creditor 
 to receive a part in discharge of the whole of a debt due to 
 him by a single bill, is without consideration and therefore 
 void. McKensie v. Culbreth, 66 N. C. E. 534. 
 
 2. To this rule there are exceptions, as if: 
 
 1. A less sum is agreed upon and received before the day of 
 payment. 
 
 2. Or at a different place. 
 
 3. Or money's worth. 
 
 4. Or where a general composition is agreed upon. Ibid. 
 
ACCOUNT.— ACTIOX ON THE CASE— I. 3 
 
 3. An agreement by a creditor to take from bis debtor 
 one-half of the amount of his debt then due in discharge of 
 the whole, is without consideration and void, aud this is so 
 though the debtor is a surety, aud the debt is due by bond. 
 Bryan v. Foy, 09 N. C. R. 45. 
 
 ACCOUNT. 
 
 1. Iu an action, of the nature of a bill in equity to sur- 
 charge and falsity an account taken under a decree in a form- 
 er suit, if the allegations of the complaint, upon which the 
 plaintiff bases his equity to have such account and settlement 
 re-opened, are denied iu the answer, so that material issues 
 of fact or law are raised by the pleadings, such issues of fact 
 must be tried, before a motion of the plaintiff to re-open the 
 account can be entertained. Houston v. Dalton, 70 N". C. 
 R. 002. 
 
 2. When the allegation of a complaint present a case of 
 equitable jurisdiction, as in an action to surcharge and falsify 
 an account, such action is properly instituted iuthe Superior 
 Court. Ibid. 
 
 ACTION ON THE CASE. 
 
 I. Wlien the action is sustainable. | II. For deceit. 
 
 I. WHEN THE ACTION IS SUSTAINABLE. 
 
 1. Where the defendants, who were engaged in the manu- 
 facture of saltpetre up to the 14th of April 1805, at the dis- 
 continuance of their operations, left some of the liquid of 
 which saltpetre is made, in troughs and hogsheads, covered 
 with boards, and enclosed by a sufficient fence, and three 
 months thereafter the plaintiff's cattle wandered into the en- 
 closure, drank of the liquid, and died from the effects thereof, 
 Held, that the question of negligence on the part of the defend- 
 ants, did not arise. Morrison v. Cornelius, 03 N. C. R. 340. 
 
 2. If a party injured have contributed to the injury, be 
 cannot recover damages on account of it. Ibid. 
 
 3. The act of May 26th 1864, by which persons "while 
 engaged in the manufacture of saltpetre" are required ''to eu- 
 
4 ACTION ON THE CASE— I. 
 
 close their works with a good and lawful fence," under pen- 
 alty of double the value of all cattle that are destroyed by 
 the liquid saltpetre, does not apply after the operations are 
 discontinued. Ibid. 
 
 4. Whilst a slave was in the employment of a Hail Road 
 Company, as a Section hand, he was directed by an agent of 
 the Company to sleep in a certain house, which had (unknown 
 to the Company and to himself,) an open keg of powder stand- 
 ing under one of the beds, placed there a day or two before, 
 for temporary purposes, by a servant of a bridge contractor 
 with such Company; the slave was killed by an explosion of 
 the powd( r, caused as was supposed, by fire from a torch 
 whilst he was searching for his hat: Held, that the Company 
 was chargeable with the negligence of the person who placed, 
 and left, the powder in such a position. Allison v. B. B. Co., 
 <J4 N. C. E. 382. 
 
 5. Where fire was communicated to a barn by sparks from 
 a Steamboat, and the boat was provided with an effectual 
 " spark-extinguisher" which was not at the time in use: 
 Held, that the fire was caused by negligence upon the part of 
 the Steamboat. Anderson v. C. F. Steamboat Co., 64. N. C. 
 E. 399. 
 
 6. Plaintiff going to defendant's warehouse after goods, 
 stops his wagon on a track nearest the platform, and next to 
 the main track, over which the mail train passes, so near 
 thereto as to be in the way of the engine: Held, in a suit to 
 recover damages for the destruction of his wagon by the en- 
 gine, that his loss is the result of his own negligence, and 
 that he had no right to recover. Murphy v. Wilmington Sc 
 Weldon B. B. Co , 70 N. C. E. 437. 
 
 7. Plaintiff sent his cotton to defendants' gin-house to be 
 ginned ; while there, the gin with all the cotton in it was 
 consumed, it not appearing how the fire originated : Held, 
 that the destruction of the cotton by fire was not prima facie 
 evidence of negligence; and further, it being shown that the 
 defendants during the possession of the plaintiff's cotton used 
 ordinary care, they are not liable for its loss. Bryan v. Foiv- 
 ler, 70 N. C. E. 596. 
 
 8. Where the plaintiff's horse was in h's pasture, through 
 which the defendant's road ran, and was run over in the day 
 time by one of the engines of defendant, it appearing on the 
 trial that the horse before being struck ran some two hundred 
 yards on the track, and that there was nothing to prevent 
 the engineer from seeing him, and that no alarm was given 
 by the engineer until about the time the horse was run over: 
 
ACTION, &c— IL— ACT OF ASSEMBLY. 5 
 
 Held, that there was such negligence on the part of the en- 
 gineer as would make the defendant liable iu damages for the 
 injury to the horse. Jones v. North Carolina R. B. Co., 70 
 N. 0. E. 620. 
 
 II. FOR DECEIT. 
 
 1. An action on the case for deceit, will not lie for the 
 vendee against the vendor, for false representations by the 
 latter as to the quantity of land sold; he should have had a 
 survey, or taken a covenant as to the quantity sold Credle 
 v. Swindell, 63 K C. E. 305. 
 
 2. The maxim ex turpi causa non oritur actio, does not 
 apply to prevent a party to a statement from maintaining an 
 action in which it becomes necessary for him to show such 
 statements to be false. Devries v. Haywood, 64 N. C, E. 83. 
 
 3. In contracts for the sale of land, it is the duty of the 
 purchaser to guard himself against defects of title, quantity, 
 incumbrance and the like ; if he fail to do so, it is his own 
 folly, for the law will not afford him a remedy for the con- 
 sequence of his own negligence. Etheridge v. Tern 1 )]), 70 
 K O. E. 713. 
 
 4. If, however, representations are made by the bargain- 
 or, which may be reasonably relied upon by the purchaser, 
 and they constitute a material inducement to the contract, 
 and are false within the knowledge of the party making them, 
 and they cause damage and loss to the party relying on them, 
 and he has acted with ordinary prudence iu the matter, he is 
 entitled to relief. loid. 
 
 See (Fraud — In conveyances, 25.) 
 
 ACT OF ASSEMBLY. 
 See (Statutes.) 
 
6 
 
 AGENT AND PEINCIPAL— I.— II.— III. 
 
 AGENT AND PRINCIPAL. 
 
 I. Who is an agent. 
 II. What an agent may or may uot do. 
 III. Of the liability of a principal for 
 
 the acts of his agent and for 
 
 notice to him. 
 
 IV. Of the liability of an agent. 
 V. Factor. 
 
 I. WHO IS AN AGENT. 
 
 If a manufacturing compauy knowingly permits a person 
 to sell goods in a store-honse with their name over the door, 
 though in a town distant from their place of business, it is a 
 circumstance which, taken with others, such as that he sold 
 their manufactured articles, and bought bacon and other 
 country produce for them, must be considered as tending to 
 prove the fact that he was acting as their agent. Gilbraith 
 v. Lineberger, 69 N. 0. E. 145. 
 
 II. WHAT AN AGENT MAY OR MAY NOT DO. 
 
 1. An agent acting under a parol authority cannot bind 
 his principal by deed. Harshaw v. McKesson, 65 N. 0. E. 688. 
 
 2. Payment, in 1863, to a Confederate Eeceiver, of a note 
 for money belonging to citizens of New York, given before 
 the late war to a citizen of this State who acted as their 
 agent, and surrendered by him as their property to the Ee- 
 ceiver: Held, to be no defense in a suit against the maker, 
 brought by the payee, to the use of the beneficial owners. 
 Justice v. Hamilton, 67 N. 0. E. 111. 
 
 3. An authority given to an attorney or agent, to accept 
 in payment of a debt cash in New York or Baltimore funds, 
 does not extend to accepting the bill of an insolvent drawer, 
 no matter upon whom it may be drawn. The credit of a bill 
 is not enhanced by the credit of the drawee until acceptance. 
 Goldsborough v. Turner, 67 N. 0. E. 483. 
 
 4. The depreciation of Confederate money is not between 
 private parties, constructive notice to the agent and the per- 
 son paying the same, that the principal will not receive it. 
 Otherwise, where the receiving agent is an officer of the Court, 
 or one acting in a fiduciary capacity. Grandy v. Ferebee, 68 
 N. C. E. 356. 
 
 III. OF THE LIABILITY OF A PRINCIPAL FOR THE ACTS OF HIS AGENT AND FOR 
 
 NOTICE TO HIM. 
 
 If goods are sold to a party, on the representation of 
 
AGENT AND PEINCIPAL— III. 7 
 
 one professing to be his agent and are afterwards delivered 
 to such party and invoiced to him, and the- invoice received 
 and the goods are used by him, he is bound for their value, 
 and under such circumstances it is immaterial whether the 
 person professing to be agent was such or not. Miller v. 
 The Land & Lumber Company, 06 N. 0. E. 503. 
 
 2. In order to avoid such responsibility, the party to 
 whom the goods were sent should have, on the receipt of the 
 invoice, promptly refused to receive — otherwise, silence gives 
 consent under the maxim qui tacet clamat. Ibid. 
 
 3. The invoice was notice that the credit was given ta 
 such party. I bid. 
 
 4. In such case it is immaterial that the officers of such, 
 party (a corporation) did not intend to induce the seller to 
 believe that the corporation had bought and would pay for 
 the goods, or that they would not have kept the goods if they 
 had not known that the corporation was bound to pay the 
 seller for them. Ibid. 
 
 5. The rule is, that when one, by his conduct, uninten- 
 tionally, gives another reasonable ground to believe that a 
 certain state of facts exists and the other acts on the belief 
 so induced, that he will be damaged if it is not true, the per- 
 son so inducing is estopped as to the other, afterwards to 
 deny the evistence of such a state of facts. Ibid. 
 
 6. The retention of the goods and silence, after receipt of 
 invoice, furnished reasonable ground to cause the sellers to 
 believe that the corporation ratified the sale and may natu- 
 rally have prevented them from taking such action as they 
 otherwise would for their security. Ibid. 
 
 7. Where an agent is authorized to sell property, he must 
 sell for money, unless otherwise especially instructed. Brown, 
 Administrator, v. Smith, 67 N. 0. li. 245. 
 
 8. Therefore, when an agent, without instruction, sold the 
 property of his principal for seven-thirty bonds, when such 
 bonds were not circulating as money : Held, that he exceeded 
 his authority, and his principal was not bound by the con- 
 tract, uuless ratified by him. Ibid. 
 
 9. Where such bonds were received by the principal in 
 exchange for his property, and he intended to repudiate the 
 contract, it was his duty to return the bonds if he could do 
 so, or give notice to the parties interested. Acquiescence, 
 without a sufficient excuse or explanation, would amount to 
 ratification. Ibid. 
 
 10. When the owner of property and his agent are in dif- 
 ferent localities, it is competent, in order to negative the idea 
 
8 AGENT AND PRINCIPAL— III. 
 
 of acquiescence in a sale, to show that telegraphic communi- 
 cation between the two points was cut off, and that the wife 
 of the principal, who was confined by sickness, endeavored to 
 send a telegram repudiating the sale on the part of her hus- 
 band. Ibid. 
 
 11. A sells a lot of tobacco to B, to be delivered at the 
 depot by a certain day ; A informs B of the delivery of the 
 tobacco and requests him to come to the depot on the ap- 
 pointed day for a settlement, aud if he, A, should be absent, 
 to inquire of one F, the depot agent, for him ; B arrives in 
 the afternoon of the day appointed, after A had left, aud as 
 requested inquires of F for A. F informs B that A had left 
 with him a lot of tobacco for him, B, at the same time hand- 
 ing him an invoice for the same, made out in A's handwri- 
 ting ; B pays F for the tobacco, who, on the next day, remits 
 the proceeds to A: Held, that these facts, standing alone, 
 are prima facie evidence that F was the agent of A to de- 
 liver the tobacco and receive the money. Pinnix v. McAdoo 
 et al, 68 N. 0. R. 56. 
 
 12. Held further, that the agency being thus established,, 
 the invoice and receipt, as well as the declaration of the 
 agent, were properly admitted as evidence of the settlement 
 plaintiff's claim for the tobacco. IMd. 
 
 13. When one permits another to hold himself out to the 
 public as his agent to sell and buy certain kinds of goods for 
 him, he is bound by the acts and contracts of such agent 
 within the scope of his authority, but that authority does not 
 extend to the borrowing of money or buying clothes for him- 
 self. Gilhraith v. Lineuerger, 69 N. 0. R. 145. 
 
 14. A plaintiff who has indorsed the uotes of a self-con- 
 stituted agent of a lunatic, to enable such agent to raise mo- 
 ney ostensibly for the benefit of the family of such lunatic, 
 which money was used by the agent in cultivating the farm 
 of the lunatic, can only recover, in a suit against the lunatic 
 upon the notes signed by the agent, so much of his debt as 
 he can show was actually expended for the necessary support 
 of the lunatic, and such of his family as were properly charge- 
 able upon him. Surges v. Pipkin, 69 N. 0. R. 513. 
 
 15. What an agent says or does, within the scope of his 
 agency, and while engaged in the very business, is evidence 
 for or against his principal. His declarations made subse- 
 quently as to what he had done, is not evidence, though he 
 may continue still to act as agent generally, or in other mat- 
 ters. McComb v. North Carolina B. B. Co., 70 N. 0. R. 178. 
 
 16. Evidence of what an agent said in regard to a trans- 
 
AGENT AND PRINCIPAL— III.— IV.— V. 9 
 
 action already passed, but while bis agency for similar objects 
 still continued, is not admissible to prove the contract itself, 
 although it is competent to contradict the statemeut of the 
 agent that no such contract was made. Stenhouse v. Char- 
 lotte & Augusta B. B. Co., 70 N. C. R. 542. 
 
 17. If such evidence is, after objection, received general- 
 ly, without confining it to the contradiction of the statement 
 of the agent, it is error, and entitles the party objecting to 
 its reception to a new trial. Ibid. 
 
 IV. OF THE LIABILITY OF AN AGENT. 
 
 1. Where an agent received money from his principal 
 with specific instructions to pay it to a certain creditor, 
 which he failed to do, but made a different application of it 
 for the principal's benefit, and the creditor made no demand 
 upon such agent until after he had parted with the money 
 and accounted for it with the principal; Held, that the 
 creditor could not look to the agent for such money. Dixon 
 v. Pace, 63 N. 0. R. 603. 
 
 2. Where the agent of an infant loaned its money in 1858 
 to a firm of which he himself was a member, and in April 
 1863 collected it in Confederate money, the firm being 
 entirely solvent ; Held, that he was liable to such infant for 
 the consequent loss. Shuford v. Bamsour, 63 N. G. R. 622. 
 
 3. For mere error in judgment, an agent, with authority 
 to do the best he can, is not liable. Long v. Pool, 68 N. C. 
 R. 479. 
 
 V. FACTOR. 
 
 1. Where a factor receives goods with instructions to ship 
 them to a certain port, and makes an advance upon them ; 
 nothing more appearing, it is not to be taken that he engages 
 (as a common carrier) to ship them thither at all hazards ; 
 but only, if by ordinary diligence he can. JBessent v. Harris, 
 63 N. G. R. 542. 
 
 2. A factor residing at W, who, being under instructions 
 to ship goods from that place to A, ships them to B, renders 
 himself liable therefor; but if his principal, upon being in- 
 formed of suoh breach of instructions, ratifies the act, ex- 
 pressly or impliedly, he thereby waives his right to complain 
 of it. Ibid. 
 
 3. If there were no such ratification, the measure of dam- 
 ages (in case, that, using ordinary diligence, the factor could 
 
10 AGENT, &C.—V.— AMENDMENT— I. 
 
 not ship to A,) is the difference between the price at W, and 
 at B, not such difference at A, and at B. Ibid. 
 
 4. Factors have a right to definite instructions from their 
 principals, and in case instructions are obscure or contradic- 
 tory, they may exercise their honest and diligent discretion 
 upon the subject matter, without becoming liable for results. 
 lhid. 
 
 5- Whether a factor is entitled to a discount for advances 
 made to his principal, is ordinarily a question of fact to be 
 decided by a jury. Ibid. 
 
 AMENDMENT. 
 
 I. Of the records. III. In the Supreme Court. 
 
 II. Of the pleadings and proceedings. 
 
 I. OF THE RECORDS. 
 
 1. Where the transcript of the record of an indictment, 
 &c, for a misdemeanor, which had been removed by affidavit 
 from another county, foiled to show that the defendant had 
 pleaded, and thereupon, the Solicitor for the State having 
 suggested a diminution of the record therein, this was ad- 
 mitted by the defendant, who stated that he had pleaded 
 Not Guilty, and was willing that the record should be amen- 
 ded so as to show it; Held, to have been competent for the 
 Court to make such amendment, and that the Solicitor had 
 no right to appeal from the order. State v. Wiseman, 63 N. 
 C. R. 536. 
 
 2. The Superior Courts have power to amend, and to 
 supply records in the former Superior Courts of Law and 
 Equity, and also in the former County Courts, upon proper 
 notice to persons interested. Stanly v. Massingill, 63 N. C. 
 E. 558. 
 
 3. Where an order of amendment given in the County 
 Court, had been appealed from, and, pending the appeal, 
 that Court had been abolished, and its records transferred 
 to the Superior Court ; Held, that, upon an affirmation of 
 the order, the amendment should be made in the latter 
 Court. Simonton v. Chipley, 64 N. C. K. 152. 
 
 4. Whenever, by any accident, there has been an omis- 
 sion by the proper officer to record any proceeding of a Court 
 of record, the Court has the power, and it is its duty on the 
 -application of any person interested, to have such proceed- 
 
AMENDMENT— I. 11 
 
 iug recorded as of its proper date; and such amendment 
 should be made, even though the rights of third persons may 
 be affected thereby. Foster v. Woodfin, 65 N. 0. E. 29. 
 
 5. An amendment supplying an omission in the record of 
 a Court differs materially from one made for the purpose of 
 putting into a process, pleading or return, something which 
 was not in it originally ; as an amendment for that purpose 
 will not be allowed to the injury of third persons. Ibid. 
 
 6. Upon a motion to amend a record of a Court, it is not 
 regular or convenient collaterally to consider what the effect 
 of the amendment will be, or whether the Court had the 
 right to do what it is alleged that it did. These questions 
 must be decided in some proceeding directly for that pur- 
 pose. Ibid. 
 
 7. A motion to amend the records of the County Courts 
 which existed prior to the adoption of the present Constitu- 
 tion and the Code of Civil Procedure, in any matter relating 
 to the appointment of au administrator, or qualification of 
 an executor, must now be made to the Judge of Probate, 
 aud not to the Superior Court of the County. Ibid. 
 
 8. The Superior Courts have the right to amend the re- 
 cords, technically so-called, that is relating to their judicial 
 action as Courts proper, of the late County Courts. Commis- 
 sioners of For sy the Co. v. Blackburn, 68 N. C. E. 406. 
 
 9. It is no error in the Court below, on a trial of a de- 
 fendant for larceny, ''as upon a plea of not guilty," and after 
 a verdict of guilty to amend the record by inserting the plea 
 of " not guilty." State v. McMillan e* al, 68 N. C. E. 440. 
 
 10. Our Superior Courts are always open for transaction 
 of business, and the Judges of those Courts have a right to 
 hear and determine upon questions of amending records at 
 Chambers, as well as in term time. Falkner v. Hunt, 68 
 K C. E. 475. 
 
 11. The joinder of a motion to amend, by restoring a part 
 of the record in an old Equity suit for partition aud sale, with 
 a prayer for relief by the correction and re- execution of a 
 deed, is a good ground for demurrer, which is however 
 waived, if the demurrer is not filed in apt. Long v. Fish, 70 
 N. C. E. 674. 
 
 12. The amendment may be made by a motion, after no- 
 tice, in the original cause, to the Judge of the Superior Court, 
 who exercises the jurisdiction heretofore exercised by the 
 Judge of the Courts of Equity. 1 bid. 
 
12 AMENDMENT— II. 
 
 II. OF THE PLEADINGS AND PROCEEDINGS. 
 
 1. Even after final judgment has been entered, a court 
 has power, at any time during the same term, to amend the 
 proceedings in a suit. Penny v. Smith, Phil. L. R. 35. 
 
 2. Therefore, where a petition had been dismissed, and 
 the petitioner had prayed for and obtained an appeal from 
 the order : Held, that the County Court had power during 
 the same term, to allow the petition to be amended, also, that 
 the terms, upon which such allowance was made, was a mat- 
 ter exclusively within its discretion. Ibid. 
 
 3. Where the affidavit and process in a case of original 
 attachment described a defendant as "C. E. Thorburn," his 
 name in full being " Charles E. Thorburn," held, that the 
 court below might, at any time before final judgment, allow 
 the plaintiff to amend the proceedings by substituting the lat- 
 ter name for the former Hall v. Thorburn, Phil. L. R. 158. 
 
 4. The note upon which the suit had been brought being 
 signed "0. E. Thorburn," qure whether the amendment was 
 necessary. Ibid. 
 
 5. Where a constable had levied an execution on land and 
 returned the same to the County Court, and from an order in 
 that court overruling a motion for a vendi exponas the plain- 
 tiff appealed : Held, that the whole record was carried up, 
 and the Superior Court had the power upon motion, made 
 there for the first time, to allow the constable to amend his 
 return. Stancill v. Branch, Phil. L. R. 217. 
 
 6. A mistake in a writ as to the particular Monday in a 
 month upon which the defendant was to appear, held to be 
 immaterial in a case where the bail bond gave the Monday 
 correctly, and the defendants were not actually misled. Mer- 
 rill v. Barnard, Phil. L. R. 569. 
 
 7. The Court to which such a writ is returned has power 
 to amend the mistake. Ibid. 
 
 8. An affidavit amended by order of the court must be re- 
 sworn to after amendment, or it will be considered as no affi- 
 davit. Atlantic Bank v. Frankford, Phil. L. R. 199. 
 
 9. Where a summons was made returnable, — and the 
 complaint, and answer, in chief, were filed, before the Clerk, 
 (July 1809,) and he returned the case to the next term, the 
 docket of which showed the names of the respective counsel 
 marked to such case : Held, that at Spring Term 1870 it 
 was competent for the Judge to amend the summons by mak- 
 ing it returnable to the term, in accordance with the Act of 
 1868-'69, c. 76. Thomas v. Womack, 64 K C. R. 657. 
 
AMENDMENT— II. 13 
 
 10. Under sec. 132, 0. C. P., the Courts possess the 
 power at any time before or after judgment, to amend, by 
 adding or striking out the name of any party, or by conform- 
 ing the proceedings to the facts proved. Bulla rd v. Johnson, 
 65 N. 0. R. 43G. 
 
 11. When a lessor, during the existence of a lease, con- 
 veys by deed the realty to a third person, and an action is 
 afterwards brought for the rent by the lessor, the Court has 
 the power to amend, by striking out the name of the lessor, 
 and inserting that of the assignee. Ibid. 
 
 12. The Court has the power to allow the amendment of 
 an affidavit upon which a warrant of attachment had issued, 
 although the former affidavit is wholly insufficient. Brown 
 v. Hawkins, 65 N. C. R. G45. 
 
 13. Notwithstanding that sec. 80, ch. 113, Acts 1S6S-'G9 
 be regarded as repealed by subsequent acts, and although it 
 provides " that any executor or administrator against whom 
 an action is pending in any Court of this State, and who has 
 heretofore entered pleas in such actions, may hereafter, (as a 
 matter of right, and without costs,) amend, strike out, or 
 change such pleas at his discretion," yet the provision does 
 not contemplate the exercise of such privilege at any inde- 
 rinite period, but an application thereunder must be made 
 within a reasonable time. Biggs v. Williams, GO N. C. R. 
 427. 
 
 11. A delay until the fourth Court after the passage of 
 the Act is unreasonable and works a forfeiture of the right, 
 aud the granting of such motion is wholly in the discretion 
 of the Court below. Ibid. 
 
 15. Wheu a complaint demanded judgmeut for the pos- 
 session of land under a deed absolute on its face, which was 
 subsequently decided upon appeal to this Court to be a 
 mortgage, and a venire de novo on that ground was ordered : 
 Held, that the Superior Court had power (under C. C. P., 
 sec. 132) when the case came on for trial again, to allow an 
 amendment of the complaint, so as to demand judgment for 
 a foreclosure of the mortgage. Bobinson v. Willoughbg, G7 
 N. C. E. 84. 
 
 1G. When the Superior Court has power to amend, the 
 question of costs is entirely in its discretion. Ibid. 
 
 17. In cases of appeal from the Probate Court to the 
 Superior Court, the Judge has the same right to allow 
 amendments as if the case had been constituted in his Court. 
 Sudderth v. McCombs, G7 N. C. R. 353. 
 
 18. Amendments, which promote justice and a trial on the 
 
14 , AMENDMENT— II.— III. 
 
 merits, are in general liberally allowed; but iu all cases the 
 application should be made in due time, or sufficient reasons 
 be shown for the delay. — Ibid. 
 
 19. The Court below has the power to amend the plead- 
 ings by adding the name of any party, who may be necessary 
 to a full determination of the cause. Johnston v. Neville, 68 
 N. 0. E. 177. 
 
 20. When a Judge of the Superior Court, makes or refu- 
 ses to make amendments, under a mistake as to his power, 
 the Supreme Court will review his action on an appeal ; but 
 when such amendments lie within his discretion, the exercise 
 of that discretion cannot be reviewed by the Supreme Court. 
 McKinnon v. Faulk, Adm'r, 68 K C. R. 279. 
 
 21. Pending a motion for final judgment, the Judge below 
 has a light to allow an amendment, striking out a demurrer 
 which has been adjudged during the same term to be frivo- 
 lous, and the defendants to answer, especially when satisfied 
 that the demurrer was interposed in good faith, and that the 
 defendants had a valid prima facie defense. Norwood v. 
 Harris, 69 N. C. R. 204. 
 
 22. As a general rule every Court has ample power to per- 
 mit amendments in the process and pleadings of any suit 
 pending before it ; but the Courts have no such power, when 
 an amendment proposed to be made will evade or defeat the 
 provisions of a statute. Cogdell Assignee, v. JExum, 69 N. 
 C. R. 464. 
 
 23. The Superior Court has the power to amend a warrant 
 issued by a Justice of the Peace against a person refusing to 
 work the road, by inserting the State as plaintiff' instead of 
 the overseer. State v. Cauble, 70 N. C. R. 62. 
 
 24. The presiding Judge, on a trial in the Court below, 
 has the power in his discretion to allow or refuse amendments 
 to the pleadings. Ward v. Fairleg, 70 N. C. R. 537. 
 
 25. The Court below has no power to allow an amend- 
 ment to an execution, so as to divest the title acquired by a 
 subsequent innocent purchaser, without notice. Williams v. 
 /Sharpe, 70 N. O. R. 582. 
 
 See (Process 8.) 
 
 III. IN THE SUPREME COURT. 
 
 When an erroneous ruling is the ground for an appeal, an 
 amendment cannot be allowed in the Supreme Court, which 
 would defeat the cause of appeal. Askew v. Pollock, iiii N. 
 C. R, 49. 
 
AMENDMENT— III.— AMNESTY. 15 
 
 AMNESTY. 
 
 1. The Supreme Court will look into the merits of a 
 prosecution comiug within the scope of the act of 1800-7, 
 c. 3, entitled " An act granting a general amnesty and par- 
 don of all officers and soldiers," &c, so far as to ascertain 
 whether the defendants are clearly entitled to an acquittal. 
 If so entitled a new trial will be granted that they may save 
 costs ; it will not be granted if their innocence is doubtful. 
 State v. Blalock, Phil. L. E. 242. 
 
 2. By Beade, J., the distinction between pardon and 
 amnesty discussed and stated : A pardon is granted, usually 
 by the executive, to one who is guilty, either before or after 
 conviction; amnesty, by the Legislature, to those who may 
 be guilty, generally in classes and before trial. Ibid. 
 
 3. The act of 180G-'7, c. 3, includes both amnesty and 
 pardon, and the court will place a liberal construction upon 
 its terms, that its benefits may be extended to as many as 
 possible. Ibid. 
 
 4. The amnesty act of 1866-'7, c. 3, was not intended to 
 exempt soldiers from punishment because the}/ were soldiers, 
 but only for acts committed by them as soldiers. State v. 
 Coolc, Phil. L. R. 535. 
 
 5. Therefore, where the prisoner was charged with break- 
 ing a dwelling house and stealing a watch, money, &c, and 
 he failed to show that be acted under military orders or in 
 the discharge of a military duty, the fact that he was a 
 soldier was held to be no bar to a prosecution for burglary. 
 Ibid. 
 
 6. In a case where a prisoner moved a Court for his dis- 
 charge ou the ground that his offense was. within the provi- 
 sions of a certain amnesty act, and sach allegation was 
 admitted by the Solicitor for the State : Held, that even if 
 the act required a plea, in order to show its application to 
 the case before the Court, the record exhibited a substantial 
 compliance with such requirement. State v. Keith, 03 N. 
 C. R. 140. 
 
 7. The Ordinance of 1808, eh. 21), repealing the Amnesty 
 act of 1800, ch. 3, is substantially an ex post facto law. inas- 
 much as it renders criminal what before its ratification was 
 not so, and takes away from persons their vested lights to 
 immunity. Ibid. 
 
 8. The Amnesty Act of December, 1800, does not embrace 
 the case of a crime, such as rape, committed prior to the 1st 
 day of January, 1806, and have no connection with war 
 
16 AMNESTY. 
 
 duties or war passions, but extends to the case of a prisoner 
 who had committed a homicide prior to that time, which was 
 directly connected with, and grew out of the events of the 
 war, and the passions engendered by it, though he was not 
 acting strictly under authority, or during active hostilities. 
 State v. Shelton, 65 N. 0. R. 294. 
 
 9. After the rehabilitation of the State, parties, who had 
 been arrested as recusant conscripts, had a right of action 
 against their captors. But such cases of action have been 
 destroyed by virtue of the Amnesty Act of 1866. Franklin 
 v. Vannoy, 66 N. 0. R. 145. 
 
 10. The seizure of the property of a recusant conscript, at 
 the time of his arrest, is a mere incident to the arrest, and 
 the cause of action therefor follows the fate of the principal 
 cause, and, is likewise embraced, by that act. I bid. 
 
 11. The Amnesty Act, thus understood, is not liable to 
 animadversion, as having the effect to divest ''vested right," 
 or otherwise infringe any provision of the Constitution. I bid. 
 
 12. During the late rebellion, the Confederate States, and 
 the States composing it, were, to all intents and purposes, 
 governments de facto, with reference to citizens who con- 
 tinued to reside within the Confederate lines, hence, the Con- 
 stitution of the Confederate States and the acts of its Con- 
 gress, and the Constitution of the State as then ordained 
 and the acts of its Legislature, constituted, during the con- 
 tinuance of the rebellion, the law of the land, and the 
 scope and effect of the Amnesty Act was to recognize this 
 principle. Ibid. 
 
 13. The Amnesty Act is not only constitutional, but a 
 wise, beneficient and remedial statute, and should be liber- 
 ally construed, on the maxim privatum incommodum publico 
 bono pensatur. I bid. 
 
 14. When a homicide was committed in November, 1865, 
 and it appeared that the prisoner and deceased belonged to 
 the same army, and that the quarrel which preceded the 
 homicide did not grow out of "any war duties or war pas- 
 sions," but out of a private transaction between the parties; 
 it was held, that in such a case the Amnesty Act did not 
 apply. State v. Haney, 67 N. C. E. 567. 
 
 See (Public Laws, 21-22.) 
 
APPEAL— I.— II. 17 
 
 APPEAL. 
 
 L From the County to the Superior 
 
 Court. 
 II. From a Justice to the Superior 
 
 Court. 
 
 III. From the Clerk or Judge of Pro- 
 
 bate to he Superior Court. 
 
 IV. From the Superior to the Su- 
 
 premo Court. 
 
 I. FROM THE COUNTY TO THE SUPERIOR COURT. 
 
 The Clerk of a County Court having transmitted to the 
 Superior Court a case in which an appeal had been obtained 
 by the plaintiff, no appeal bond being filed by inadvertence: 
 Held, that upon such bond being filed in the Superior Court 
 after a motion to dismiss for want thereof, it was probably 
 competent for that Court to refuse such motion ; — and that 
 at all events, it was proper to grant an application for a 
 certiorari, and then to place the case upon the trial docket. 
 Stickney v. Cox, Phil. L. 14. 495. 
 
 See (Mills, 12.) 
 
 II. FROM A JUSTICE TO THE SUPERIOR COURT. 
 
 1. Where an appeal from a magistrate is regular in form, 
 and the Court discovers no error in the proceedings, — the judg- 
 ment should be one affirming that given below, and not dis- 
 missing the appeal. Barringer v. Holbrook, 64 N. C. R. 540. 
 
 2. The Code of Civil Procedure requires no surety on an 
 appeal from a Justice's judgment. Steadman v. Jones, 65 
 N. C. R. 388. 
 
 3. On an application to a Justice of the Peace for a 
 suspension of execution after a recovery by a landlord against 
 his tenant, the Justice has a discretion as to the sufficiency 
 of the surety, which a Judge will not review, in the absence 
 of any suggestion that the Justice acted dishonestly or 
 capriciously. Ibid. 
 
 4. Sec. 17 of chap. 227, Acts of I860-' 70, does not apply 
 to Justices' judgments which do not exceed the sum of 
 twenty-five dollars. Street v. Bryan, 65 N. C. R. 611). 
 
 5. The decisions of Justices of the Peace upon questions 
 of fact are not the subject of review. Ibid. 
 
 6. Sec. 539, C. C. P., applies to appeals by defendants 
 against whom judgment is rendered by a Justice for $25 or 
 less, and not to appeals by plaintiffs, in whose favor judg- 
 ment is given for $25 or less, and who fairly claimed more 
 than $25"due. Cowles v. llaynes, 67 K C. R. 128. 
 
18 APPEAL— II.— III.— IV. 
 
 7. Upon an appeal to the Superior Court by a plaintiff, 
 in an action commenced before a Justice of the Peace, for 
 the recovery of $60 due by former judgment, the plaintiff is 
 entitled to have the case heard de novo, and for that purpose 
 it should be entered on the Civil Issue Docket. Wells v. 
 Sluder, 68 N. C. E. 156. 
 
 8. An appeal by a plaintiff, from a judgment rendered 
 against him in a Justice's Court, for $6.30, costs in a suit 
 against the defendant on an account for over $80, should be 
 entered by the Clerk on the trial, or Civil Issue docket of the 
 Superior Court, to be tried de novo. Such an appeal cannot 
 be heard by the Judge at Chambers. Comm'rs Jackson Co. 
 v. Addington, 68 N. C. E. 254. 
 
 9. An omission to give the notice of appeal required by 
 sec. 535, of the Code of Civil Procedure, strictly within the 
 ten days therein provided for, is not so serious a default, as 
 will preclude a party from the right to have his case reheard. 
 Marsh v. Cohen, 68 N. C. E. 283. 
 
 10. No judgment against the sureties to an appeal from 
 a Justice of the Peace can be given, until after a return of 
 the execution against the principal, unsatisfied. Code of 
 Civil Procedure, section 542. Rush v. Halcyon Steamboat 
 Co., 68 K C. E. 72. 
 
 See (Jurisdiction — of Justices in Civil cases, 13.) 
 
 in. FKOM THE CLEBK OR JUDGE OF PROBATE TO THE SUPERIOR COURT. 
 
 1. When an appellant elects (under C. C. P., s. 490,) to carry 
 a case from the Probate Court to the judge in vacation, it is 
 still within the discretion of the latter to hear it in term time /■ 
 and vice vena. Rowland v. Thompson, 64 N. C. E. 714. 
 
 2. In case of such an appeal, if there be a further appeal 
 from the Judge to the Supreme Court, the latter tribunal 
 can review no point before the Probate Court that was not 
 passed upon by the Judge. I bid. 
 
 3. The power to revise and control the action of a Clerk of 
 the Superior Court in passing upon the sufficiency or insuffi- 
 ciency of bonds to be taken by him, necessarily exists with the 
 Judge, whose minister and agent he is ; and the proper mode 
 of bringing the question before the Judge, is by an appeal from 
 the ruling of the Clerk. Marsh v. Cohen, 68 N. O. E. 283. 
 
 IV. FROM THE SUPERIOR TO THE SUPREME COURT. 
 
 1. Upon ambiguities in the statement sent up to the Su- 
 preme Court, the presumption will be against the appellant. 
 
APPEAL— IV. 19 
 
 Wood v. Sawyer, Phil. L. E. 251. S. P. 'Weaver v. Parker, 
 Davis v. flftarpe, Phil L. E. 479-18. 
 
 2. It is the duty of the party appealing to specify the 
 points upon which he excepts to tMe ruling of the Court upon 
 the trial below. Stout v. Woody, 63 N. 0. E. 37. 
 
 3. Parties to appeals have no right to waive appeal bonds 
 so far as costs are concerned- Cape Fear & Deep River N. 
 Company v. Oosten, 63 IS. C. E. 204. 
 
 4. Where both parties to a case appeal, the Clerks of the 
 Superior Court should make out two transcripts; the double 
 appeal constituting in the Supreme Court two cases. Mor- 
 rison v. Cornelius, 63 X. C. E. 346. 
 
 5. In case of an appeal from an interlocutory order the 
 Court is confined to a consideration of the ve m y point on 
 which the appeal is taken. Sledge v. Blum, 63 X. C E. 374. 
 
 6. Where a rule was served upon a plaintiff to justify his 
 security for the prosecution of a suit, or to give other, and 
 he failed to do so by the required time, whereupon the suit 
 was dismissed ; Held, that the refusal of the Judge to accept 
 a bond subsequently tendered, is not subject to review. 
 Futrell v. Spivey, 63 N". C. E. 520 
 
 7. Cases brought to this Court by appeals taken without 
 -notice, (0. C P., §301) will be dismissed upon motion. 
 Campbell v. Allison, 73 N. C. E. 568. Carlton v. Hart, 
 Hampton v. Sjjainhour, 569. 
 
 8. An appeal being now the act of the appellant alone, no 
 presumption of regularity arises because of its having been 
 taken during a term of the court from which it comes. Ibid. 
 
 9. Cases sent upon pro for ma judgments will not hereafter 
 be considered. State v. Locust, 63 N. C. E. 574. 
 
 10. A rule having been made in the County Court upon 
 the plaintiff, to justify the security on her prosecution bond 
 on or before Tuesday of August Term, 1868, or such suit to 
 be dismissed, that term was not held, as the justices were 
 of opinion that their offices had terminated. At Fall term 
 1868 the papers in this case with others, were delivered, by 
 the Clerk of the County Court to the new Superior Court 
 Clerk, but the Civil docket was not taken up at that term 
 for want of time : At Spring Term 1869, on Wednesday of 
 the second week, being the first day of taking up the Civil 
 docket, the defendant moved to dismiss the case because of 
 the rule of the County Court— but upon the plaintiff's offer- 
 ing to give security then, she was allowed so to do : Held, to 
 have been a matter within the Judge's discretion, and to have 
 been properly decided. Smith v. Mitchell, 03 X. 0. E. 020. 
 
20 APPEAL— IV. 
 
 (Illustration of the maxim Actus legis nemini facit injur- 
 iam.) Ibid. 
 
 11. Error in the charge of the Court, on a trial for crime, 
 will not give the State a right to appeal after a verdict of not 
 guilty. State v. Oredle, 03 K 0. R. 500. 
 
 12. The issue mil ticl record, includes two questions; one, 
 of fact, from the decision of which in the Court below there 
 is no appeal, the other, of law deducible from such fact, from 
 the decision of which below there is an appeal. Simpson v. 
 Simpson, 03 JS". O. R. 534. 
 
 .13. The Supreme Court has appellate jurisdiction over 
 questions of law only, and so cannot review the exercise of a 
 discretion aiy power over matters of fact: Simonton v. Chip- 
 ley, 04 N. C. R. 152. 
 
 14. Therefore, it cannot review a question as to the pro- 
 priety of an order striking out a judgment for irregularity 
 turning, in some degree, upon whether it were given without 
 a verdict, and in the absence of the defendant and his attor- 
 ney. Ibid. 
 
 15. Where the question raised by the appeal is, whether 
 there be any evidence, &c, it will be taken for granted that 
 the record sent up contains the whole of the evidence bear- 
 ing upon the point. latton v. Hunt, 04 N. C. R 103. 
 
 10. The immateriality of an error, on the trial below, must 
 clearly appear on the face of the record, in order to warrant 
 the Court in treating it as surplusage McLenan v. Chisliolm, 
 04 K C. R. 323. 
 
 17. A bond had been executed by the defendant, leaving 
 the name of the obligee blank ; the bond was afterwards exe- 
 cuted by others, and then the blank was filled with the name 
 of the plaintiff, and the date was altered ; suit having been 
 brought upon the bond, on the trial the plaintiff offered to 
 show, "that the siguers of the paper authorized him to fill 
 the blank and make the alteration of date, or assented to 
 what he had done :" Held, that, as parties who appeal from 
 rulings below in regard to the evidence, must set forth in dis- 
 tinct terms the evidence rejected, so that this Court may 
 pass upon its admissibility, and, as the proposition above did 
 not show the sort of evidence tendered, there appeared to be 
 no error in its exclusion. Bland v. CHayan, 04 N. C. R. 471. 
 
 18. Where it is suggested in the Superior Court, that a 
 certain case called for trial, was to abide the result in another 
 case that had been determined in that Court: Held, that the 
 finding by the Judge, in favor of the suggestion, cannot be 
 reviewed upon appeal. Carroll v. Hayivood, 04 iN". C R. 481. 
 
APPEAL— IV. 21 
 
 19. Directions for stating cases upon appeal. Pearsall v. 
 Mayers, 64 K 0. E. 549. 
 
 20. Upon an appeal from an order vacating a judgment, 
 for want of service of the process by which the action was 
 constituted, it is necessary that the record show how the 
 Judge found upon the question of such service ; it must pre- 
 sent the fact as found, and not (as here) only the evidence 
 bearing on such fact. Gardwell v. Cardwell, 04 K 0. R. 621. 
 
 ^ 21. The decision of the Judge upon such fact is conclu- 
 sive ; except a question be made whether there were any 
 evidence tending to establish it, or whether a given state of 
 facts constituted service. Ibid. 
 
 22. A plaintiff can appeal from a decision of a Judge at 
 Chambers refusing an injunction. Bank v. Jenkins, C4 
 1ST. 0. E. 719. 
 
 23. The Supreme Court may allow an appellant to sub- 
 stitute a sufficient, for an insufficient, appeal bond, after a 
 motion by the appellant to dismiss the appeal for such defect. 
 Robeson v. Lewis, G4 N. C. E. 734. 
 
 24. Attention called to the provisions in regard to appeal 
 bonds, in the C. C. P.. sec. 303, as affected by section 309. 
 Ibid. 
 
 25. Cases in equity pending at the adoption of the present 
 Constitution, cannot now be transferred for trial to this 
 Court ; they must be heard below, and can only be consti- 
 tuted here by appeal Royers v. Goodwin, G4 N. C E, 278. 
 
 26. Appeals from interlocutory judgments are only 
 allowed in civil suits, and this by virtue of Eevised Code, 
 chap. 34, sec. 27. Therefore, when the Court found from ex 
 parte affidavits that the defendant, during the trial of an 
 iudictment for larceny, was guilty of tampering with a juror, 
 and for such conduct ordered a juror to be withdrawn and a 
 mistrial made, the defendant had no right to appeal to this 
 Court. State v. Bailey, 65 N. C E. 426. 
 
 27. Although the granting of an issue is. a discretionary 
 act of the Court, a mistake in the exercise of that discretion 
 is a just ground of appeal. If an issue be refused, and the 
 appellate Court should think that a contrary decision would 
 have been a sounder exercise of discretion, it will correct 
 the order of the Court below. Redman v. Redman, 65 
 N. 0. E 546. 
 
 28. No appeal is allowed on the part of the State, where 
 ;i general verdict of not guilty has been reudered. State v. 
 Phillips, 66 N. C. E. 646. 
 
 29. An appeal cannot be taken on the State docket from 
 
22 APPEAL— IV. 
 
 .-"an interlocutory order or judgment. State v. Jefferson, 66 
 N. 0. K 300. 
 
 30. Where it appears to this Court that the Judge below, 
 has, from the statement of the appellant, the objections of 
 the appellee and his own notes, been enabled to make out a 
 case containing the substantial merits of the controversy, 
 the appeal will not be dismissed, although there was great 
 irregularity in the proceeding below. Whitesides v. Williams, 
 
 m n. c ii 141. 
 
 31. Nor will the appeal be dismissed, because the state- 
 ment of the J udge below was made out of the District in 
 which the case was tried unless the record shows that the 
 appellee demanded to be present, and that by reason of his 
 absence, he was prejudiced, especially when the error consists 
 in the rejection of material and competent evidence. Ibid. 
 
 32. This Court is disposed to extend liberality in matters 
 of appeal-practice, as the profession have not yet become 
 familiar with the new system. Ibid. 
 
 33. Where issues to be tried by a jury, are tendered by 
 the plaintiff, and such issues are objected to by the defend- 
 ant, and others tendered, and the presiding Judge directs 
 those tendered by the plaintiff to be submitted: Held, that 
 there can be no appeal to the Supreme Court from such pre- 
 liminary order. School Committee v. Kesler, 66 1ST. C E. 323. 
 
 34. Rules III, IV and V, adopted by the Supreme Court 
 at June Term, 1871, discussed and fully explained by 
 Pearson, C. J. Ibid. 
 
 35. On appeal to this Court, an undertaking of appeal 
 must be sent up with the transcript. Felton v. Elliott, 6(> 
 N. C R. 105. 
 
 36. It is the right and duty of an appellant, subject to 
 the provisions of the Code, to direct what part of the record 
 shall be sent up ; only so much should be sent up as will 
 show that there was a case duly constituted in Court, and 
 the verdict, judgment, and such portions of the proceedings, 
 evidence and instructions of the Judge, as will enable the 
 Court to pass on ihe exceptions. Sudderth v. MoCombs, 
 67 N. C. li. 335. 
 
 37. The jurisdiction given to the Supreme Court by the 
 Constitution is appellate, upon any matter of law or legal in- 
 ference. No issue of fact shall be tried before it. The phrase 
 "issues of fact," is a technical one and must be understood in 
 its legal, technical sense, as including only such issues as are 
 joined in the pleadings, and does not forbid the Court from 
 deciding questions of fact which arise iucidently upon mo- 
 
APPEAL— IV. 23 
 
 tions; at least, not in cases where the decision, though finally 
 for the purposes of the motion, does not conclude the rights 
 of the parties, as, on motion, to grant or vacate injunctions, 
 Rodman Judge, arguendo- Foushee v. Fattersholl, 07 
 N". 0. R. 453. (But see Post Sec. 53.) 
 
 38. The questions of fact which incidentally arise, upon 
 exceptions to account, differ a little in their nature from 
 those upon a motion to grant or vacate au injunction, as the 
 decision upon them is necessarily final for the purpose of the 
 action. But we think this Court has never decided, that it 
 was prohibited from reviewing the finding of a Judge of the 
 Superior Court in such case. We should be reluctant so to 
 decide, as it is difficult to conceive that the law of North 
 Carolina ever intended to confer, on a single Judge, the vast 
 and dangerous power of deciding all questions of fact so aris- 
 ing, without responsibility, and without liability to review or 
 correction, even in cases of plain and evident mistake. Ihid. 
 
 39. A defendant who has confessed judgment has no right 
 of appeal from such judgment; but where an appeal was 
 allowed in such case by a Justice of the Peace, and the plain- 
 tiff failed to move to dismiss the appeal in the Superior 
 Court, the Supreme Court may pass by the irregularities 
 and, regarding the proceedings in the nature of a writ of 
 false judgment, consider the errors assigned upon the record. 
 Rush v. Halcyon Steamboat Co , 07 N. C. R. 47. 
 
 40. All intendments are taken most strongly against a 
 party alleging error on the record ; therefore, where a defen- 
 dant confessed judgment before a Justice on a note given to 
 the plaintiff, as administrator, for the rent of a house, and 
 theu appealed and objected in the Superior Court that the 
 plaintiff had no right of action ; held, on appeal to the Su- 
 preme Court, the record showing nothing to the contrary, 
 that it must be presumed that the plaintiff's intestate had au 
 estate for years, and not au inheritable estate in the premi- 
 ses. Ibid. 
 
 41. In appeals from the former Superior Courts of Law 
 purely discretionary powers of such Courts were never re- 
 viewed by the Supreme Court. Otherwise, in appeals from 
 the Courts of Equity, in which every order and decree of such 
 Court, affecting the rights of parties, were the proper sub- 
 jects of review by the Supreme Court. Long v. Holt 08 
 N. C. R 53. 
 
 42. This Court will not review a decision or determina- 
 tion affecting neither the actual nor legal merits of a contro- 
 versy. Therefore, An appeal from au order continuing in 
 
24 APPEAL— IV. 
 
 force a former order made in the cause, was dismissed. 
 Child's v. Martin et al, 68 K 0. R. 307. 
 
 43. An agreement of parties, that the decision of the 
 Judge below, in an old equity suit upon a question of fact 
 submitted to his determination, shall be final and conclusive,, 
 does not deprive either party of their right of appeal, and of 
 having the case heard de novo in this Court Falkner v> 
 Hunt, 68 N. 0. R 475. 
 
 44. The Supreme Court has no jurisdiction to review the 
 decision of a Judge below, on a pure question of fact. Camp- 
 bell v. Campbell et al, 68 1ST. C R. 157. 
 
 45. This Court will not adjudicate a hypothecal case, 
 which may or may not arise, for the mere purpose of advis- 
 ing as to circumstances altogether contingent and uncertain. 
 Young v. Young, 68 N. C. R. 309. 
 
 46. An appeal cannot be taken in State cases from an 
 interlocutary judgment, and it is only by statute that such 
 appeals can be taken in civil cases. State v. Wiseman, 68 
 18F. C. R- 203. 
 
 47. In our practice, both before and since the establish- 
 ment of the Constitution of 1868, the Supreme Court has all 
 the powers which a Court of Errors had at common law: 
 Hence it follows, That as a writ of error is not a continuation 
 of the original suit, but is a new suit by the party against 
 whom judgment is rendered, to reverse that judgment, an ap- 
 peal vacates the judgment below, and this Court will give 
 such judgment as the Court below should have given. Bush 
 v. Halcoyn Steamboat Co., 68 N. C R. 72. 
 
 48. Upon an appeal from a judgment of the Superior 
 to the Supreme Court, the whole case is taken up to the 
 latter Court, whether the appellant give an undertaking with 
 sufficient security (or in lieu thereof make a deposit of money) 
 to secure the amount of the judgment, or to secure the costs 
 only, as provided in sections 303 and 304 of the C C. P., the 
 right of the appellee to issue execution in case of the under- 
 taking being to secure the costs of the appeal only is given, 
 instead of the deposit of money to abide the event of the ap- 
 peal. Bledsoe v. Nixon, 69 N. L. R. 81. 
 
 49. To enable insolvent defendants, convicted in criminal 
 actions to appeal from judgments of the Court below, it must 
 appear by affidavit that they are wholly unable to give secu- 
 rity for the costs, and that they are advised by counsel that 
 they have reasonable cause for the appeal prayed for, and 
 that the application is in good faith. State v. Divine, 69* 
 ;N\ C R. 390. 
 
APPEAL— IV. 25 
 
 50. Until the entry on the judgment docket by the clerk, 
 no appeal from a judgment rendered in term time is effect- 
 ual, and such entry must be within ten days after the judg- 
 ment is rendered. Bryan v. Hubbs, 69 N. 0. R. 423. 
 
 51. The undertakings necessary to perfect an appeal may 
 be given within a reasonable time after notice of the appeal 
 has been given. And after such appeal has been perfected, 
 it is the duty of the clerk to give notice thereof to the sheriff, 
 in order that any execution which may have issued may be 
 superseded. Ibid. 
 
 52. A Judge of the Superior Court has no power to make 
 an order authorizing a person who has been permitted to sue 
 in forma pauperis to appeal to the Supreme Court without 
 giving securiry for the costs of the appeal, and for the want 
 of such security the appeal will be dismissed with costs. 
 Mitchell v. Sloan, 69 N. C. R. 10. (Note— Such power is 
 now given by the Act of 1873-'4, Sec. 60.) 
 
 53. The Supreme Court has no jurisdiction under the 
 Constitution, to consider the evidence and review the finding 
 of the Court below, in regard to facts, as well as in regard to 
 '•legal inference,'' whether such issues of fact are triecTby the 
 Judge, or by a jury, or are made by the pleading, as under 
 the old system, or are eliminated by the Court from com- 
 plaint and answer, or by means of exceptions to a report. 
 Keener v. Finger, 70 N. C. R. 35. 
 
 54. If an appellant fails to assign and prove an error, the 
 judgment although erroneous must be affirmed. Filey v. 
 Fay, 70 X. C E. 303. 
 
 55. In an appeal to this Court, it is the duty of the appel- 
 lant to cause to be prepared a concise statement of the case, 
 embodying the instructions of the Judge as signed by him, 
 if there be any exceptions thereto, and the requests of the 
 counsel for instructions, if there be any exception on account 
 of the granting or withholding thereof, and stating separately 
 in articles numbered, the errors alleged. The appellant can- 
 not except to the charge of the Judge on the trial below, for 
 the first time in this Court. Sampson v. Atlantic & North 
 Carolina B. R. Co., 70 N". C. R. 404. 
 
 56. All questions of practice and procedure as to amend- 
 ments and continuances arising on a trial in the Court below, 
 are in the discretion of the presiding Judge, from whose 
 judgment thereon there is no appeal. C. 0. P. sec. 133. 
 Austin v. Clarice, 70 N. C. R. 458. 
 
 See (Contempt 4-13.) (Judgments — Of vacating judg- 
 ments, 20, 31, 36, 38, 39.) (Practice— On Appeals ) 
 
26 APPEENTICES. 
 
 APPRENTICES. 
 
 1. An illegitimate free negro child who has not gained a 
 new settlement by a year's residence in some other county 
 is, for the purpose of being apprenticed, subject to the 
 jurisdiction of the Court of that county in which' its mother 
 was settled at the time of its birth. Ferrell v. Boyhin, Phil. 
 L. E. 9. 
 
 2. A master mny recover damages of any one who, after 
 demand made, detained his apprentice. Ibid. 
 
 3. A county court has no power to bind as apprentices, 
 persons who have no notice of the proceedings for that 
 purpose ; and it is prudent in the court to require that such 
 persons shall be present when bound. In the matter of 
 Ambrose, Phil. L. E. 91. 
 
 4. A county court, upon application by the master to 
 whom it has bound an apprentice, has power, and, in a fit 
 case, it is its duty, to restore to his possession such appren- 
 tice, if at the time of application, he is a runaway. Beard 
 v. Hudson, Phil. L. E. 180. 
 
 5- Where a father so acts as to render his house no longer 
 habitable by his children, it is a desertion of them by him, 
 within the meaning ot Eevised Code, ch. 5, sec. 1. Stout v. 
 Woody, 63 N. 0. E. 37. 
 
 6. One who seduces away and employs the apprentice of 
 another, is liable to the master for the value of his services 
 during the time that he is so seduced and employed. Ibid. 
 
 7. Where an apprentice, then nineteen years and two 
 months old, was, in July, 1860, upon his master's removal 
 from the State, hired out by him for the rest of that year 
 and also for the year 1861 : held, that it was error for the 
 court to instruct the jury, " that if the consideration of the 
 notes given for the value of the apprentice during the above 
 years was not the assignment of the full unexpired term of 
 the apprentice, but only a hiring by the master for the years 
 1860 and 1861, the plaintiff would be entitled to recover;" 
 and that he ought to have submitted the following instruc- 
 tions to the jury: Was it the eflect of the transaction that 
 the plaintiff transferred his mastership of the apprentice to 
 the defendant ? If yea, he cannot recover; if nay, the defen- 
 dant is liable. Biggs v. Harris, 64 N". 0. E. 413. 
 
 8. The statute in reference to binding out apprentices, 
 0. 0. P., sec. 484, must be construed as if it read, " All 
 orphans, the profits of whose estates will not support them, 
 
APPRENTICES— ARBITRATION, &c— I. 27 
 
 aud who are likely to become chargeable upon the county, or 
 whose moral or physical condition requires it, shall be bound 
 out." Mitchell v. Mitchell, 67 N. 0. R. 307. 
 
 0. When an application is made to a Probate Judge to 
 bind out children as apprentices, prudence requires that they 
 should be present, and it is his duty to observe such prudence, 
 unless there be some sufficient excuse for omitting it. Ibid. 
 
 ARBITRATION AND AWARD. 
 
 I. When to be sustained or set aside, j II. Construction of awards and rera- 
 
 I edy thereon. 
 
 I. WHEN TO BE SUSTAINED OR SET ASIDE. 
 
 1. An award of arbitrators, to whom a case of trespass, 
 q. c.f. was referred, that there was ''no trespass," enables 
 the court to dispose of the case, aud should not be set aside 
 for uncertainty Harrelson v. Pleasants, Phil. L. R 365. 
 
 2. When an award fails to dispose of the costs, each party 
 must pay his own. costs. Ibid. 
 
 3. Arbitrators are no more bound to go into particulars, 
 and assigD reasons for their award, than a jury is for its ver- 
 dict. Their duty is best discharged by a simple announce- 
 ment of the result of their investigations. Blossom v. Van 
 Amrinae, 63 N. C. R. 65. 
 
 4. Where arbitrators award that the personal property 
 for which a suit has been brought, belongs to the defeudant, 
 and that the plaintiff shall pay the costs: Held to be final as 
 regards such suit. Ibid 
 
 5. An award as to the arbitration fee, held to be valid, 
 where the order of reference expressly entrusted the arbitra- 
 tors with its determination. Ibid. 
 
 6. An award must have, upon its face, certainty to a com- 
 mon intent, or it will be void: Th ere/ore, where a suit in- 
 volving land, was referred to arbitrators to be settled, and 
 their award to be a rule of Court: Held, that an award, 
 that the plaintiff "is entitled to his deed for the premises 
 mentioned in the pleadings, upon the payment of all the pur- 
 chase money and the interest due thereon," — where the plead- 
 ings in the action showed a difference between the parties in 
 respect to the amount of such purchase money, — should be 
 set aside, and the parties be at liberty to proceed, as if there 
 had been no reference. Carson v. Carter, 64 N. 0. R. 332. 
 
28 ARBITRATION AND AWARD— I —II. 
 
 7. Where parties to suits in Court agreed in writing to 
 submit to arbitration those suits and all matters in dispute 
 between them, and thereupon the arbitrators made an award, 
 and disposed in a particular manner, of the costs in the suit 
 pending: Held, that the Judge had no power, upon a return 
 of the aword into Court, to alter the award as regards such 
 costs. Hoover v. Neighbors, 64 N. C R. 429. 
 
 8. A pa vol submission to arbitration of the title to land, 
 is void. Pearsall v. Mayers, 64 N. C. R. 549 
 
 9. Although arbitrations are favored in law as being a 
 court selected by the parties, and a cheap and speedy method 
 of settling difficulties ; and although awards are to be liber- 
 ally construed so as to effect the intention of the arbitrators, 
 without regard to technicalities or refinement, yet it is well 
 settled that where the arbitrators undertake to make the 
 case turn upon matters of law, and mistake the law, their 
 award is void. Leach v. Harris, 69 N. C. R. 52. 
 
 10. It is equally well settled that arbitrators are not bound 
 to decide a case "according to law," being a law unto them- 
 selves, but may decide according to their notions of justice, 
 and without giving any reason. Ibid. 
 
 11. A suit is referred to A., whose award is to be a rule of 
 Court, and who reports to Fall Term, 1872, a balance due 
 plaintiff; neither party filing exceptions to the report, the 
 plaintiff has a right to judgment at the term to which the re- 
 port is made. And upon motion of defendant, the cause being 
 continued, at the ensuing term (still no exception being filed,) 
 judgment being granted pursuant to award, his Honor com- 
 mitted no error in refusing to set aside the judgment, because 
 the defendant filed an affidavit, alleging that he had been 
 misled as to the scope and intent of the reference by the 
 referee, and that he could show certain facts in defense, &c. 
 Heed v. Farmer, 539; Johnson v. Farmer, 69 N. C. R. 542. 
 
 II. CONSTRUCTION OF AWARDS AND REMEDY THEREON. 
 
 1. Where two persons are appointed as arbitrators, and 
 it is provided in the submission or rule of Court, that they 
 may select an umpire, it must appear on the face of the 
 award that the appointment of the umpire was the act of the 
 will and concurring judgment of both the arbitrators. Crisp 
 v. Love, 65 N. C. R 126. 
 
 2. Where two persons whose lands were contiguous, had 
 a suit pending about the boundaries thereto, and afterwards 
 entered into a bond agreeing to submit all questions arising 
 
ARBITRATION AND AWARD— II. 29 
 
 ■about the boundaries of said lands to A and B, and to abide 
 by the award made by them, and also in the said bond cov- 
 enanted "that the party who shall fail to keep, abide by, 
 and observe the decision and award that shall be made 
 according to the foregoing submission, will pay to the other 
 the sum of one thousand dollars, as liquidated, fixed, and 
 settled damages :" held, that after the award had been made 
 by A and B, and one of the parties placed a fence over the 
 dividing line as fixed by the award, and on the laud of the 
 other, and that said damages were not of greater value than 
 five dollars, that the sum specified in the bond is to be 
 regarded as a penalty, and not as liquidated damages. 
 Henderson v. Cansler, 03 N. C. R 542. 
 
 3. If a suit be referred by an entry on the docket in these 
 words, viz : " this case is referred to A B, who shall summon 
 the parties before him and hear the case, and his award shall 
 be a rule of court," and the referee files a paper which he 
 styles an award, in which he finds the facts and his conclu- 
 sions as an award, whether it is to be treated as an award 
 under a rule, or a reference under the 0. 0. P., the referee's 
 finding of the facts is equally conclusive, as are also his 
 conclusions as to the law arising on the facts, except probably 
 where he undertakes to make the case turn upon a question 
 of law and clearly mistakes it. Gudger v. Baird, 06 
 X. C R 438 
 
 4. Where a case had been referred for an account and 
 report, and the report had been made aud set aside by con- 
 sent, and then by consent of parties it was ordered that the 
 ease be remanded for an additional report, showing what 
 fund of the estate still remains after setting aside the sum 
 of $2,000 due the plaintiff B, showing also "how each of the 
 children of the testator stand towards each other as to the 
 amounts received, what is due from each of them to the 
 administrators, or from the administrator to each of them, 
 and what is due to each other : Aud for the better adjustment 
 of the matters in question, it is referred to J. H. T. as 
 arbitrator, whose award shall be a rule of court, aud who 
 shall state the account necessary to exhibit what is here 
 lequired, &c : It ivas held, that it was a reference to arbitra- 
 tion, and that the report of the arbitrator was an award, and 
 not merely the report of a referee to take an account, and 
 it was held further that the arbitrator had not exceeded his 
 power in stating an account of the whole estate. Hilliard 
 and tvife et al v. Rowland, Admb; 08 JS". C- R. 500. 
 
 5. The effect of a reference to arbitrators is very different 
 
30 ARBITRATION, &c— II.— AREEST 
 
 from that of a reference under the Code. Arbitrators may- 
 choose an umpire ; they are not bound to find the facts sep- 
 arately from their conclusions of law ; they are not bound to 
 decide according to law ; and their award may be general, 
 thus "that plaintiff recover $ and costs. Lusli v. Clay- 
 ton, 70 N. 0. R. 184. 
 
 6. An agreement that an award shall be a rule of court, is 
 merely an agreement to confess judgment according to the 
 award, when it shall be made. If the parties refering their 
 matters in controversy, have no suit in court, the court will 
 not compel a performance of their agreement by attachment, 
 as it will if the subject matter has been brought in court by 
 suit or otherwise. Ibid. 
 
 ARREST. 
 
 1. When an affidavit, made to obtain an order of arrest 
 and an attachment, is based upon an apprehension by the 
 affiant of some future fraudulent act by the defendant, such 
 affidavit must specify the grounds of the apprehension ; but 
 where the affidavit relies upon an act already done, it need 
 state it only in general terms ; as here, "That the said P. has 
 disposed of and secreted his property with intent to fraud his 
 creditors. Hughes v. Person, 63 N. 0. R. 548. 
 
 2. An affidavit that the defendant "is about to leave the 
 State," is insufficient as a basis for a warrant of arrest ; it 
 ought to have added "with an intent to defraud his creditors, 
 as the affiant believes," and then set forth the (/rounds of such 
 belief, so as to show some probable cause. Wilson v. Barn- 
 hill, 64 N. 0. R. 121. 
 
 3. Refusal to allow a second affidavit to be filed, is an 
 exercise of discretion, which cannot be reviewed upon appeal; 
 the plaintiff might have filed a second sufficient affidavit 
 immediately, and obtained a second warrant of arrest. Ibid. 
 
 4. A private person may arrest for felony, when it appears 
 that it is necessary, for waut of an officer or otherwise, that 
 he should do so, to prevent the escape of the felon. In 
 making such arrest for a felony, the person must notify the 
 felon of his purpose, or he will be guilty of a trespass. State 
 v. Bryant, 65 K 0, R. 327. 
 
 5. It seems that a private person who, when it is neces- 
 sary for him to act, attempts to arrest a felon guilty of a cap- 
 ital offence, such as murder or rape, may kill him if he either 
 
AKEEST.— ARSON.— ASSAULT AND BATTERY. 31 
 
 resists or flies, but he has no right to kill a person guilty of 
 a felon of an inferior grade, such as theft, if he does not resist, 
 but only attempts to escape by flight. Ibid 
 
 6. A plaintiff who is allowed to sue, in forma pauperis, has 
 no right to an order of arrest, without first filing the under- 
 taking required in sec. 152 of the Code of Civil Procedure. 
 Bowrrk v. Homesley, 68 N. C. R 91. 
 
 ARSON. 
 
 1. A building of hewn logs (twenty-six feet by fifteen,) di- 
 vided by a partition of the same, upon one side of which were 
 horses, and upon the other, corn, oats and wheat, (threshed 
 and unthreshed,) also hay, fodder, &c., having sheds adjoin- 
 ing, under which were wagons and other farming utensils, is 
 a "barn" within the meaning of that word in the Rev. Code, 
 c. 34, s. 2, punishing with death the burning of barns having 
 grain in them. State v. Cherry, 63 N. C. R. 493. 
 
 2. The comma, at the end of the word " store," in section 
 2, of Rev. Code, c. 34, is a misprint ; the enrolled bill in the 
 office of the Secretary of State has no such comma, and thus 
 shows that the word is used as an adjective, qualifying the 
 word "house" which follows. State v. Pulley, 68 N. C. R. 8. 
 
 3. The Constitution does not repeal section 2, ch. 34, of 
 the Revised Code ; it repeals only so much of it as imposes 
 death as a punishment : ]$ence, one can be now indicted, 
 couvicted and punished for burning a mill-house in 1863. 
 State v. King, 69 N. C. R. 419. 
 
 ASSAULT AND BATTERY. 
 
 1. Where an offer to strike is made with a deadly weapon 
 the law does not allow it to be explained by words used at 
 the time. Therefore, where the defendant, whilst standing 
 in the door of his grocery, held a pistol in his hand some- 
 times bearing upon A and sometimas not, and swearing that 
 if A came in he would shoot him : held, that he was guilty of 
 an assault. State v. Myerfield, Phil. L. R. 108. 
 
 2. Discussion of the distinction between " attempts to 
 strike " and " offers to strike," and between the effect of 
 
32 ASSAULT AND BATTERY. 
 
 words used where an ''offer to strike " is made with a deadly 
 weapon, or without one. Ibid. 
 
 3. An indiscriminate assault upon several persons is an 
 assault upon each . State v. Merritt, Phil. L. E. 134. 
 
 4. The facts beiug that gun was fired by one of two 
 defendants, whilst the other was present aiding and abetting : 
 lield that a charge in the indictment that both committed 
 the assault was thereby made good. Ibid. 
 
 5. A mere threat unaccompanied by an offer or attempt 
 to strike, is not an assault. State v. Mooney, Phil. L. E. 434. 
 
 6. An indictment, charging that the defendant and 
 another "did commit an affray by fighting together by 
 mutual and common consent in public view," includes a 
 charge of a mutual assault and battery, and the defendant 
 may be convicted under it, though the grand jury found the 
 bill not true as to the other party. State v. Wilson, Phil. L. 
 E 237. 
 
 7. Where one was indicted for an assault and battery, 
 and it was proved that, in a former indictment against him 
 and others for a riot, the assault charged had been given in 
 evidence, with other acts of like character, his conviction of 
 the riot was held to be a bar to the second prosecution. 
 State v. Lindsay, Phil. L. E. 468. 
 
 8. The laws of this State do not recognize the right of the 
 husband to whip his wife, but our courts will not interfere to 
 punish him for moderate coned ion of her, even if there had 
 been no provocation for it. State v. Rhodes, Phil. L. E. 453. 
 
 9. Family government being in its nature as complete in 
 itself as the State government is in itself, the courts will not 
 attempt to control, or interfere with, in favor of either party, 
 except in cases where permanent or malicious injury is 
 inflicted or threatened, or the condition of the party is 
 intolerable. 1 bid. 
 
 10. In determining whether the husband has been guilty 
 of an indictable assault and battery upon his wife, the crite- 
 rion is the effect produced, and not the manner of producing 
 it, or the instrument used. Ibid. 
 
 11. Where one was going down the steps which led from 
 a court room, and an other who was before him in striking 
 distance, stoped, turned about, clenched his right hand (the 
 arm beiug bent at the elbow but not drawn back) and said, 
 I have a good mind to hit you, whereupon the the former 
 walked away and went down another staircase : held, that 
 the latter was guilty of an assault. State v. Hampton, 
 63. N. 0. E. 13. 
 
ASSAULT AND BATTERY. 33 
 
 12. Where one drew a pistol, (neither cocked nor presen- 
 ted,) and ordered another, who was within ten steps, to leave 
 a public place, or he would shoot him: held to be an assault. 
 State v. Church, 63 N. C. R. 15. 
 
 13. Where a landlord, whilst engaged in collecting his ad- 
 vancements out of a crop in a held, which, by agreement with 
 the cropper, was to remain his "till he was reimbursed," on 
 being assaulted by the latter with a deadly weapon, knocked 
 him down with a stick, held that he was not thereby guilty of 
 assault and batterv. State v. Burwell, 03 N. G. R. 601. 
 
 14. Where, upon some words between husband and wife 
 he threatened to leave her, and used to her very improper 
 language, when she started to go off, and he caught her by 
 the left arm, and said he would kill her, drawing his knife 
 with the other hand ; then, holding her, struck at her with, 
 the knife, but did not strike her, and again drawing back as 
 if to strike, his arm was caught by a bystander ; but after 
 all, no injury or blow was inflicted: held, to have been a case 
 in which the courts will interfere, and that the husband was 
 guilty of an assault. State v. Mabrey, 6-4 ET. C. R. 592. 
 
 15. Where a feme covert commits an assault and battery 
 in the presence of her husband, it is presumed, in the absence 
 of evidence to the contrary, that she did it under his con- 
 straint. State v. Williams, 65 N. C. R. 398. 
 
 16. This presumption of law, however, may be rebutted 
 "by the circumstances appearing in evidence, and showiug 
 that, in fact the wife acted voluntarily, and without constraint. 
 Ibid. 
 
 17. Semble, That this principle applies only to misde- 
 meanors committed by the wife iu the presence of her hus- 
 band. 1 bid. 
 
 18. Where the defendant went to a prosecutor and said 
 "I once thought we were friends, but I understand you have 
 said thus and so about me, and you have to take it back ;" 
 the prosecutor refused to take it back, whereupou the defen- 
 dant put his hand open and flat on the prosecutor's breast, 
 and pushed him back some steps, when he fell over a flour 
 barrel : it was held, to be an assault and batterv. State v. 
 Baker, 05 X. C. R. 332. 
 
 19. In an indictment, under the Act of lS68-'69, chap. 
 167, sec. 8, for an assault with a deadly weapon with intent 
 to kill, it is sufficient to charge that the assault was made 
 "with a certain pistol then and there loaded with gun-powder 
 and one leaden bullet," without stating that it is a " fire- 
 arm " or •* deadly weapon," because the court can see and 
 
 3 
 
34 ASSAULT AND BATTERY. 
 
 ■will take notice that a loaded pistol is both. Stale v. Swann r 
 65 N. 0. R. 330. 
 
 20. An assault with a deadly weapon with intent to kill 
 is not made a felony by the Act of 1808-'09, ch. 107, sec. 8,. 
 and therefore it is not necessary to charge that the assault 
 "was made with a felonious intent. 1 bid. 
 
 21. If a person be at a place where he has a right to be, 
 and four other persons having in their possession a manure 
 fork, a hoe and a gun, by following him and by threatening: 
 and insulting language, put him in fear, and induce him to 
 go home sooner than, or by a different way from, what he 
 would otherwise have gone, are guilty of an assault upon 
 him, though they do not get nearer to him than seventy-tive 
 yards, and do not level the gun at him. State v. Rawles, 05 
 ]y. O. R. 334. 
 
 22. When a number of persons meet together, and there 
 is evidence tending to show a common design to commit an 
 assault upon another, they may all be properly found guilty, 
 though only one of them used threatening and insulting 
 language to hivn. Ibid. 
 
 23. Where a number of persons Were charged with hav- 
 ing met together and then gone to commit an assault upon 
 another person, and it was proved on the part of the State, 
 that one of the number had just had a conversation with 
 him: it was held, that the defendants had a right to prove 
 the details of the conversation as a part of the res gestee to 
 prove the quo animo of their coming together. Ibid. 
 
 24. If A pursues B with a stick or piece of board raised 
 in a striking attitude, and is stopped by a third person when 
 within two or three steps of B, this constitutes an assault,. 
 although A could not have stricken B with the stick in his 
 hand at the place where he was stopped. State v. Vannoy r 
 05 K 0. R. 532. 
 
 25. A husband has no legal right to chastise his wife;. 
 but if no permanent injury has been inflicted, nor malice,, 
 cruelty nor dangerous violence shown by the husband, it is 
 better to leave the parties to forget and forgive. State v. 
 Oliver, 70 N. 0. R. 00. 
 
 20. The Act of 1808-'G9, chap. 178, by which Justices of 
 the Peace were given jurisdiction finally to try certain petty 
 assaults under certain circumstances, was repealed by the 
 act of 1870-'71, chap. 43, which says that in all cases of 
 assault the punishment may be by fine or imprisonment, or 
 both, at the discretion of the Court. State v. Heidelburg, 
 70 N. 0. R. 490 
 See (Indictment — Plea of former acquittal or co iviction, 1-2.) 
 
ASSIGNMENT IX EQUITY.— ASSUMPSIT. 35 
 
 ASSIGNMENT IN EQUITY. 
 
 Where a suit is pending against A, and he, in considera- 
 tion that the suit be dismissed, &c., agrees to pay one-half of 
 the claims in cash, and to pay 50 per cent, of his assets, or so 
 much as may be necessary, as they may be reasonably col- 
 lected to discharge the balance of the claim, this is, as be- 
 tween the parties, a valid equitable assignment, and makes A 
 trustee for his creditor to the extent of the agreement; and, 
 when a second creditor of A afterwards briugs suit and obtains 
 a judgment, and upon the return of an execution nulla bona, 
 procures supplemental proceedings to subject enough of the 
 debt of a debtor of A to sat : sfy his judgment, such second 
 creditor only acquires a lien on the debt owing to A, subject 
 to the first creditor, and an account ought to be taken. Ques- 
 tions, which may arise after an account, reserved. Perry v. 
 Merchant's Bank of Newbern, 09 N. C. R. 551. 
 
 See (Bank and Bank Notes, 17.) 
 
 ASSUMPSIT. 
 
 1. Where A & Co. entered into a written contract with 
 B to sell off a stock of goods and pay the nett proceeds to 0, 
 who was a creditor of B: Held, that C had no right of ac- 
 tion against A & Co upon the written contract, as, for al- 
 leged want of care in choice of customers, for selling upon a 
 credit, &c. That might sue A & Co. upon the Common 
 counts, for any nett cash received by him upon the sales. 
 That C could not recover from A & Co. upon the common 
 counts or otherwise, for money due upon sales on credit from 
 individual members of the firm. Wlnslow v. Lawrence, 
 Phil. L. II. 505. 
 
 2. A creditor having desisted from suing his debtor upon 
 request by a third person to that effect, the latter adding 
 "He has put property in my hands to pay his debts, and 
 when 1 sell it I will pay you all he owes you," held that an 
 action of assumpsit could not be maintained agninst such per- 
 son, without showing that he had received money from the 
 property in his hands. Hicks v. CrVchcr, Phil. L. R. 35:;. 
 
 3. In an action of assumpsit, the rule of damages in a suit 
 upon a note for $105 payable "in gold, or its equivalent in 
 the currency of the country," is — Such an amount in L T . S. 
 
36 ASSUMPSIT.— ATTACHMENT— I. 
 
 Treasury Notes, as, at the time the note became due, was 
 worth $107 iu gold. Mitchell v. Henderson, 63 N. C. E. 648. 
 
 4. Where a debtor promised his creditor to leave a sum 
 of money in the hands of a third person in part payment of 
 what was due, and did so, the third person agreeing to hold 
 it for the creditor: Held, that upon his refusing to pay it, 
 the creditor could bring an action against him for the money. 
 White v. Hunt, 64 N. 0. E. 496. 
 
 See (Confederate money, 1.) (Payment, 3-4-5.) 
 
 ATTACHMENT. 
 
 I. Original and under C. C. P. | IV. In equity. 
 
 II. Garnishee summoned. V. Under the liens of laborers and 
 
 III. Judicial attachment. others. 
 
 I. ORIGINAL AND UNDER THE C. C. P. 
 
 1. A bond payable to the plaintiff in an attachment, and 
 conditioned for the appearance of the defendant, &c, is not 
 a "bail bond," within the meaning of the Eev. Code, ch. 7, 
 sec. 5, and therefore, by executing such a bond the defend- 
 ant does not obtain a right to replevy and plead. Barry v. 
 Sinclair, Phil. L. E. 7. 
 
 2. The statute upon attachment must be constructed 
 strictly. Ibid. 
 
 3. A plea in abatement is the proper mode of taking ad- 
 vantage of a defect in the affidavit for an attachment. Ibid. 
 
 4. The creditor's affidavit under Eev. Code, ch. 7, sec. 1, 
 must state that the removal or the absence from the county 
 •or State, or the concealment, on the part of the debtor, was 
 for the 2 mr l )0se °f avoiding service of ordinary process. 
 Leak v. Moorman, Phil. L. E. 168. 
 
 5. An attachment issued by the Clerk of a Court for a 
 sum within the jurisdiction of the Court and made returnable 
 to the proper term of the Court, will not be dismissed for 
 want of form because directed " to any Constable or other 
 lawful officer to execute and return within thirty days, 
 (Sundays excepted,)" it appearing that it was executed by 
 the Sheriff. Askew v. Stevenson, Phil. L. E. 288 
 
 6. Where Court was not held at the return term of an 
 attachment, nor at the succeeding term, and at a subsequent 
 term the defendant replevied the property attached : Held, 
 that the cause was not discontinued. Ibid. 
 
ATTACHMENT— I. 37 
 
 7. After replevying, the defendant in an original attach- 
 ment has a right to demand a declaration from the plaintiff. 
 Maxwell v. McBrayer, Phil. L. E. 527. 
 
 8. A suit for breach of promise of marriage cannot be 
 commenced by original attachment. IMd. 
 
 9. Under the act of 1866-67, ch. 68, the defendant in an 
 original attachment might replevy and plead without giving 
 a replevy bond. Holmes v. Sackett, 63 1ST. C. E. 58. 
 
 10. The provision in the Act (Eev. Code, ch. 7, sec. 16,) 
 requiring an absconding by the defendant to be within three 
 months in order to warrant an attachment, is not a statute 
 of limitations, and therefore is not within the various Acts 
 recently passed affecting the Statute. Blanlcenship v. 
 McMahon, 63 N. C. 180. 
 
 11. Defendants in original attachment may appear and plead 
 without giving bail. Stephenson v. Todd, 63 X. 0. E. 368. 
 
 12. In such cases any judgments theretofore obtained 
 agaiust garnishees should be set aside; IMd. 
 
 13. And if money had been collected upon such judg- 
 ments, that should be repaid to the garnishees; not paid over 
 to the defendant. IMd. 
 
 Note. — The law in the eleventh and thirteenth sections 
 above has been modificated by the Code of Civil Procedure. 
 
 14. Attachment under the Code is not an original but an 
 auxiliary remedy, and can be issued only for the causes spe- 
 cified §§ 197—201. Marsh v. Williams, 63 N. C. E. 371. 
 
 15. An affidavit which alleges, as grounds for an attach- 
 ment, that the affiant "believes that the defendants have dis- 
 posed of their property and are still doing so, with the intent 
 to defraud their creditors"; also, that "the defendants being 
 largely indebted, if not insolvent, have sold and are selling 
 their large stock of goods at less than the cost of the same 
 in the city of New York, and have disposed of other valuable 
 property for cash," is not only sufficient, but very full and ex- 
 plicit. Gashine v. Baer, 64 N. C. E. 108. 
 
 16. The plaintiff made an affidavit, for a warrant of at- 
 tachment, that was insufficient in point of form, but the war- 
 rant was issued: the defendant, as ground for a motion to dis- 
 charge the warrant, made a counter affidavit; and thereupon 
 the plaintiff replied with another affidavit, the form of which 
 was unobjectionable: Held, that, upon the motion, the plain- 
 tiff was entitled to have his second affidavit considered, and 
 that Us completeness did away with what otherwise would 
 have been the consequences of defects in his original affidavit, 
 (0. C. P. §196.) Clark v. Clarh, 64 N. C. E. 150. 
 
38 ATTACHMENT— I. 
 
 17. Notwithstanding the provisions of its eleventh sec- 
 tion, the act of 1868-'69, ch. 76, Suspending the present 
 Code, is to be construed as requiring the summons in cases 
 where the defendant is a wow-resident, to he returned to the 
 term of the Court. Backalan v. LiUhfield, 64 E". C. E. 233. 
 
 18. That section requires the warrant of attachment to 
 be returned before the Cleric. Ibid. 
 
 19. An attachment which specifies no day or place of re- 
 turn, is h regular, and therefore voidable ; but such defect is 
 waived if the defendant appears and gives an undertaking for 
 the re-delivery of the property seized. Ibid. 
 
 20. A Superior Court .; udge has no authority to vacate 
 injunctions, or to set aside attachments regularly granted, 
 except for causes pending in his own District. Therefore 
 ■when an attachment was taken out in the third Judicial Dis- 
 trict, the Judge of t he sixth Judicial District was unauthor- 
 ized in law to vac; e said attachment. Bear v. Cohen, 65 
 N". C. E. 511. 
 
 21. An attachmi t or other provisional remedy will be 
 vacated without any undertaking by the defendant, by a 
 Judge, if on its face it appeals to have been issued irregu- 
 larly, or for a cause iusumient in law, or false in fact. Ibid. 
 
 22. It is sufficient to authorize a warrant of attachment, 
 if the affidavit set forth " that defendant was about to assign, 
 dispose of, or secrete his property with intent to defraud his 
 creditors," and then specifies "that the said property was 
 secretly removed out of its usual place, after night, and found 
 several miles distant, and when it was overtaken late at night, 
 the person having possession thereof made conflicting state- 
 ments as to where they were going, and whose property it 
 was they had." Brown v. Hawkins, 65 ~N. C. E. 645. 
 
 23. Under the provisions of the C. C. P., an attachment 
 is not the foundation of an independent action, but is a pro- 
 ceeding in the cause, in the same action already commenced, 
 and is an ancillary remedy and collateral to such action. 
 Toms v. Warson, 66 N. C. E. 417. 
 
 24. Hence, a stranger to the action in aid of which the 
 attachment is issued, has no right to intervene, and make 
 himself a party thereto, though, upon proof of interest in the 
 property attached, he may be allowed to make up a collat- 
 eral issue of title. Ibid. 
 
 25. A levy on land, under an attachment issued by a 
 Justice of the Peace, is sufficient, if it gives such a descrip- 
 tion as will distinguish and indemnify the land. Grier v. 
 Bhyne, 67 N. C. E. 338. 
 
ATTACHMENT— I.— II. 39 
 
 26. Therefore, a levy in tbese words : " I did, on the 12th 
 day of June, 1859, levy on a certain tract, whereon defendant 
 lives, containing 197 acres; also another tract lying near 
 the same, 70 acres more or less — no personal property, &c, 
 to be found ;" was held, to be sufficient. Ibid. 
 
 27. A judgment of the Superior Court, upon a Justice's 
 execution or attachment levied on laud, under which judg- 
 ment there was an execution and sale of the land, precludes 
 all collateral enquiry into the regularity of the previous 
 proceedings. Ibid. 
 
 28. Where a motion to discharge a warrant of attach- 
 ment had been made in the Superior Court, and the motion 
 allowed, and the plaintiff appealed to the Supreme Court 
 and that Court had reversed the order, and upon the opiuion 
 being certified to the Superior Court, for further proceedings, 
 and the case being called, his Honor heard affidavits of facts, 
 alleged to have existed at time of first decision, and gave 
 judgment discharging the warrant: Held, to be erroneous, 
 and that the decision first made was final, at least as to fact 
 existing at the time of that decision. Broivn, Daniel & Co. 
 v. Hawkins, 08 N. C. R. 444. 
 
 29. An affidavit for a warrant of attachment, under the 
 C. C. P., sec. 201, (Battle's Kevisal chap. 67, sec. 201,) which 
 states that " the defendant is absent so that the ordinary 
 process of law cannot be served upon him," without an 
 averment that the absence " was with intent to defraud his 
 creditors and to avoid the service of a summons," is fatally 
 defective. Love Sc Co. v. Young, 69 K. C. 11. 65. 
 
 See (Arrest — 1, 2, 3, 6.) 
 
 II. GARNISHEE SUMMONED. 
 
 1. Where an original attachment issued, and a summons 
 ot garnishment is served upon a party, who dies before the 
 return day of process, his administrators cannot be required 
 to answer said garnishment. In such a proceeding, the gar- 
 nishee is required to answer upon oatii '• lielher be is indebted 
 to the absconding debtor, and it so. how ii,nolJ This being 
 peculiarly within his own knowledge, the, action cannot be 
 prosecuted against his representatives. Tate v. Morchead, 
 65 N. C. R. 681. 
 
 2. History of the common law and of the enactments in 
 this State, by which actions might be revived and carried 
 on by, or against, the representatives of a deceased party — 
 and in what cases the maxim actio personalis moritur cum 
 persona does not apply, J bid. 
 
40 ATTACHMENT— II.— III.— IV. 
 
 3. Where, an attachment against the payee of a negotia- 
 ble note, the maker is summoned as garnishee and admits 
 his indebtedness to the payee, and thereupon a judgment is- 
 given against him for the amount, it will be no defence to 
 such maker when sued upon the note by one who became a 
 honafide endorsee before he was summoned as a garnishee in 
 the attachment, even though such endorsement was made 
 after the note was over due. Shuler v. Bryson, 65 1ST. 0. R. 
 201. 
 
 4. When one is summoned as a garnishee in an attach- 
 ment, and owes a note which is negotiable, he has a right to 
 insist upon the production and surrender of the note, or upon 
 an indemnity as in the case of a lost note, before a judgment 
 is taken against him upon his garnishment. I hid. 
 
 III. JUDICIAL ATTACHMENT. 
 
 1. A court has no power to grant a judicial attachment 
 after a return of " not found " made upon a writ issued 
 against a non-resident: and where under these circumstances 
 such a writ had been taken out, held that it was the duty of 
 the court to dismiss it on motion made by or for the defend- 
 ant, or even ex mero motu. Denver v. Keith, Phil. L. R. 428* 
 
 IV. IN EQUITY. 
 
 1. A bill seeking an attachment on account of a single 
 claim, is not multifarious because it prays that such attach- 
 ment issue against property in the hands of various persons, 
 or because it seeks from such persons an account of their 
 respective dealings with the debtor. Alexander v. Taylor, 
 Phil. Eq. R. 36. 
 
 2. Where, in such a bill, process (but not relief) had also 
 been prayed for against the executors of the surety to the 
 debt, and a judgment fro confesso had been taken against 
 them : Held, that although the bill would have been dis- 
 missed as to them if they had demurred, no other defendants, 
 could complain of their misjoinder. 1 hid. 
 
 3. The debtor in an attachment suit in equity has no 
 status in court until he has appeared and replevied, in accord- 
 ance with the 25th section of Rev. Code, ch. 7. Ihid. 
 
 4. An attachment in equity will lie against the principal, 
 even though the remedy at law against his surety has not 
 been exhausted. Ihid. 
 
ATTACHMENT— Y— ATTORNEY AT LAW. 41 
 
 V. UNDER THE LIENS OF LABORERS AND OTHERS. 
 
 1. Upcler sec. 14, cb. 117, of the acts of 1868-'69, giving 
 a remedy by attachment to enforce a laborer's lien in certain 
 cases, an affidavit that the defendant has removed and is 
 removing and disposing of Ms cotton crop without regard to 
 the lien, is sufficient to justify the issuing of the warrant. 
 Brogden v. Privet, 67 N. C. R. 45. 
 
 ATTORNEY AT LAW. 
 
 1. After an attorney has been admitted by the court to 
 represent a party, he cannot unless with the consent of the 
 court be discharged before the end of the suit. Walton v. 
 Sugg, Phil. L. R. 98. 
 
 2. A suit does not end before complete satisfaction of, or 
 discharge from, the judgment given therein. Ibid. 
 
 3. Where persons mutually contested the claims of each 
 other to be regarded as Mayor, &c, of a municipal corpora- 
 tion, and one party had brought an action in the name of the 
 corporation, in order to test the question: Held, that upon 
 the case coming by appeal to this Court, an attorney, claim- 
 ing to be counsel for the plaintiff and authorized under its 
 seal, although perhaps appointed by the other party, had a 
 right, even against the protest of the attorney who brought 
 the action and had been recognized up to that time as the 
 attorney upon record although without authority under seal, 
 to have the action dismissed. Newberne v. Jones, 63 N. C. 
 R. 606. 
 
 4. The power of attorney which a lawyer may be required 
 to file, by Rev. Code, ch. 31, s. 37, is some writing addressed 
 to him by the client or an agent for the client; therefore, let- 
 ters written by the client to third persons in which no parti- 
 cular suit is specified, which express gratification that a cer- 
 tain gentleman had been employed in some controversy be- 
 tween the plaintiff and the present defendant, will not supply 
 the want of such a power. Day v. Adams, 63 N. 0. R. 254. 
 
 5. Whether one who has assumed to act as attorney for 
 another, was authorized to do so, is, under proper instructions 
 from the Court, a question of fact for the jury. Alspaugh v. 
 Jones, 64 N. C. R. 2!». 
 
 6. Where a party filled up a writ for himself in his char- 
 acter as guardian, as plaintiff, and handed it to an ollicer to 
 
42 ATTORNEY AT LAW. 
 
 be served, but, before it was executed, procured auotber per- 
 son to be substituted in bis place as guardian, and endorsed 
 tbe note in question to hiui: Held, tbat an attorney, wbo 
 usually bad taken judgments for tbe former guardian, and for 
 tbat reason, after tbe writ bad been executed, and before it 
 bad been returned (July 1862,) instructed the Sheriff to re- 
 ceive Confederate and other currency inpayment of the amount 
 specified upon its face, was not authorized so to do. 1 bid. 
 
 7. A uote given by an executor to an attorney for coun- 
 sel in bis office as executor, is payable by tbe maker person- 
 ally, and not as executor. Kesler v. Hall, 64 N. 0. R. 60. 
 
 8. Parol evidence of an understanding tbat it was to be 
 paid out of the testator's assets only, is not admissible. 
 Ibid. 
 
 9. A motion to strike out tbe name of a plaintiff, made 
 by tbe attorney for the defendant, by virtue of a power of 
 attorney to tbat end, given by one of tbe plaintiffs, will be 
 refused where the attorney for such plaintiff produces a 
 letter from him of a date later than that of the power, 
 authorizing the suit to go on. Petteway v. Daivson, 64 
 N. 0. R. 450. 
 
 10. Tbe Act of Apn'l, 1871, declaring tbat no attorney 
 shall be disbarred, until he may be convicted of, or confess in 
 open court, some criminal offence, showing him to be unfit to 
 be trusted iu the duties of his profession, is constitutional: 
 Therefore, the action of a Judge who acted in disregard of 
 the provisions of this Act, was void. Ex-parte Schencli, 65 
 K 0. R. 354. 
 
 11. An attorney cannot compromise his client's case 
 without special authority to do so, nor can he without such 
 authority, receive in payment of a debt due his client any- 
 thing except the legal currency of the country, or bills which 
 pass as money at their par value by the common consent of 
 the community. A subsequent ratification of the acts of the 
 attorney is equivalent to a special authority previously gran- 
 ted to do those acts, but it must be the ratification of the 
 client himself and not of his agent. Moye v. Cogdell, 60 
 N. 0. R. 93. 
 
 12. Tbe alleged fraudulent conduct of a defendant and an 
 attorney employed by the plaintiff, cannot be inquired into 
 upon a writ of false judgment. Caldwell v. Beatty, 69 
 N. 0. R. 365. 
 
 See (Contempt 3, 6, 10, 13, 14, 15, 18, 19, 20, 25, 28, 29, 
 30, 32, 33, 34, 35.) 
 
AUDITOR OF THE STATE.— BAIL. 43 
 
 AUDITOR OF THE STATE. 
 
 1. The Auditor of the State is not a mere ministerial 
 officer. When a claim is presented to him against the State, 
 he is to decide whether there is a sufficient provision of law 
 for its payment, and if in his opinion there is not sufficient 
 provision of law, he must examine the claim and report the 
 fact, with his opinion, to the General Assembly. Bonner v. 
 Adams, 05 N. 0. K. C37. 
 
 2. Therefore, where a Clerk of the General Assembly had 
 received a warrant for the entire number of days to which he 
 was entitled, at seven dollars per day, he had no right to a 
 writ of mandamus against the Auditor of the State because 
 he refused to give him a warrant for three dollars per day 
 additional for the same number of days for which he had 
 heretofore obtained a warrant. Ibid. 
 
 3. The mode of proceeding against the Auditor of the 
 State, who refuses to issue a warrant, discussed and ex- 
 plained. Ibid. 
 
 BAIL. 
 
 1. An administrator is not responsible for the sufficiency 
 of a bail bond taken by a sheriff in a case wherein he is 
 plaintiff, — even although he expressly accepted such bond. 
 State, &c, v. Sloan, 04^. 0. R. 702. 
 
 2. Where the bail taken was a non-resident, and after 
 judgment against the principal had been rendered, and writs 
 of ca. sa. issued and returned not to be found, writs of scire 
 facias were issued against the bail, and, after two nihils, 
 judgment was rendered against the latter: Held, that the 
 administrator was not bound to attempt to collect such 
 judgment in another State. Ibid. 
 
 '•>. Inasmuch as there was no personal service of the writs 
 of scire facias in the action against the bail, the judgment 
 therein could not have been enforced in another State. Ibid. 
 
 See (Attachment — Original and under the 0. C. P. 1.) 
 
44 BAILMENT. 
 
 BAILMENT. 
 
 1. The rule that possession is prima facie evidence of 
 property has no application to a case where bailment is ad- 
 mitted. Lutz v. Yoiint, Phil. L. R. 367. 
 
 2. If a horse be hired, or borrowed, to be ridden to a 
 particular place and returned at a particular time, if he be 
 ridden to another place and kept beyond the time, the bailee 
 is responsible for any injury to the horse which results from 
 his departure from the contract, without regard to any ques- 
 tion of negligence. Martin v. Cuthbertson, 64 1ST. 0. R. 328. 
 
 3. In cases of bailment, the owner of the property has no 
 right of action against the bailee until the termination of the 
 bailment ; but, after the termination of the bailment, the 
 owner can recover without a demand for possession. Felton 
 v. Hales, 67 N. 0. R. 107. 
 
 4. When a bailee denies the title of the owner, and sets 
 up title in himself, no demand is necessary ; and the defend- 
 ant is precluded from objecting the want of demand, where, 
 in his answer, he alleges property in himself. Ibid. 
 
 5. When a bailment is for the benefit of bailee only, he 
 is bound to take extraordinary care, but when it is for the 
 benefit of bailor only, the bailee is only liable for gross 
 neglect, crassa negligentia. McCombs v. N. C. JR. B. Co., 
 67 N. 0. R. 193. 
 
 6. Where a horse was placed by A, in the possession of 
 P, with au understanding that he was to work for his food, 
 and was to do the plowing and milling for A, and A was to 
 use the horse when he wanted him : held, that this is a con- 
 tract of bailment, and is governed by the general principle, 
 that a bailee cannot dispute the title of his bailor. Maxwell 
 Houston, N. 0. R. 305. 
 
 7. When an administrator converts property, he is a 
 wrong doer, although he obtained possession by an act of 
 law ; and he cannot be heard to dispute the title of the bailor 
 of his intestate. Ibid. 
 
 8. A bailee, where the bailment is for the benefit of both 
 parties, is only liable for ordinary neglect ; and this does not 
 embrace a case of accidental destruction by fire without 
 default on the part of the bailee. Henderson v. Bessent, 68- 
 N". 0. R. 223. 
 
 See (Banks and Bank Notes 9.) 
 
BANKRUPTCY. 45 
 
 BANKRUPTCY. 
 
 1. Where the plaintiff in a suit upon an account, assigned 
 bis interest therein bona fide and for value : held, that he 
 thereby became a trustee of such claim for the assignee, and 
 that his subsequently becoming bankrupt, during the pend- 
 ency of the suit, did not affect his rights to recover as trus- 
 tee. Yallentine v. Holloman, 63 IS". 0. R. 475. 
 
 2. A brings an action of replevin for the recovery of an 
 ox; during the pendency of the suit he is adjudged a bank- 
 rupt upon his own petition, and the ox is allotted to him as 
 a part of his exemptions under the bankrupt law: held, that 
 the legal title to the ox remained in A, and that it had never 
 vested in the assignee. Scott v. Wilkie, 05 N. 0. R. 370. 
 
 3. Although a tenant cannot dispute the title of his land- 
 lord, yet, in an action for the recovery of reality by an 
 assignee in bankruptcy against the tenant of the bankrupt, 
 Jbe may dispute the assignment. Steadman v. Jones, 65 
 K. C. R. 388. 
 
 4 The defendant, a corporation, created by the laws of 
 the State of Rhode Island, did business in this State, and 
 owned property here. Within six weeks after a warrant of 
 attachment had been executed on the estate of defendant, 
 situate in this State, it was declared a bankrupt on its owu 
 petition by the District Court of the United States for the 
 District of Rhode Island, and a deed of assignment of all the 
 estate of defendant was made to the assignee : Held, (1.) that 
 the warrant of attachment, although executed on the estate 
 of defendant is but mesne process. (2,) That the effect of 
 the appointment of the assignee was to vest the entire estate 
 of the defendant in such assignee, and that the order for the 
 dissolution of the warrant of attachment, and the restitution 
 of the estate of defendant to the assignee, was proper. 
 Mixer, Whitemore & Co. v Excelsior 0. & G. Co., 65 
 N. C R 552. 
 
 5. To a bill for a specific performance of a contract to 
 convey land, the assignee of the vendor, who has not received 
 the whole of the purchase money, and who has become bank- 
 rupt, must be made a party. Stvepson v. Rouse, 05 X. 0. R. 
 34 
 
 6. Where a defendant to a bill for the specific performance 
 of a contract to convey land, alleges and relies upon his 
 certificate of discharge as a bankrupt, the fact of a proper 
 assignment of his estate to his assignee will be presumed, 
 
46 BANKRUPTCY. 
 
 though it is not specifically alleged where there is no allega- 
 tion or proof to the contrary. I hid. 
 
 7. The District Courts of the United States have general 
 original jurisdiction in all matters appertaining to the estate 
 of a baukrupt ; and they may exercise extra territorial juris- 
 diction, in collecting the estate and adjusting the claims of 
 the creditors of the bankrupt, when the Court of Bankruptcy 
 can fairly and fully determine the rights of the parties inter- 
 ested. Whitridge v. Taylor, 66 N. 0. R. 273. 
 
 8. In all matters of controversy, when the subjects in dis- 
 pute are of a local character, the rights of the parties must 
 be determined in the local Courts. Ibid. 
 
 9. When a mortgagee, by the terms of the mortgage, has 
 a right to foreclose, when an adjudication in bankruptcy is 
 made, this right cannot be administered by a District Caurt, 
 sitting as a Court of Bankruptcy in another State. The 
 State Courts can afford a remedy by foreclosure or sale, and 
 at the same time allow the assignee to have the full benefit 
 of the equity of redemption. Ibid. 
 
 10. When an execution for costs, incurred in this Court, 
 has been returned unsatisfied, and the party is insolvent and 
 entitled to moneys, in the Clerk's office of this Court, this 
 Court will order, that the office costs be deducted from the 
 moneys so due to him; aud although such execution-debtor 
 is adjudicated a bankrupt, it will not affect this conclusion, 
 as the assignee quoad hoc takes subject to all the equities of 
 the bankrupt. Cleric's Office v. Bank of Cape Fear, Giy N- 
 C. K.294. 
 
 11. r J he position and legal status of an assignee, discussed 
 and explained by Rodman, J. Ibid. 
 
 12. Where a debtor, after filing his petition in bank- 
 ruptcy, but before obtaining his discharge, promises, in con- 
 sideration of the old debt, and of a new credit for the purchase 
 of goods, to pay the old debt as well as the new, his subse- 
 quent discharge is no defence against his promise to pay such 
 old debt Homthal v. McRae, 67 N. C R. 21. 
 
 13. Where, in an action upon a bond, the defendant 
 pleaded his discharge in bankruptcy, and the plaintiff replied, 
 alleging promises to pay after tl e adjudication of bankruptcy: 
 Held, that evidence of a promise made after the adjudication, 
 but before the discharge, was admissible. Fraley v Kettey, 
 78. 
 
 14. Under our present system of practice, though it is 
 regular, where suit is brought to recover a debt which would 
 be barred by bankruptcy but for a subsequent promise to 
 
BANKRUPTCY. 47 
 
 pay, to set forth the new promise in the reply to an answer 
 alleging bankruptcy. 1 bid. 
 
 1 5. In case of a debt barred by a certificate of bankruptcy, 
 nothing less than a distinct, unequivocal promise to pay, on 
 the part of the defendant, notwithstanding his discharge, will 
 support an action upon the new promise. Ibid. 
 
 16. A suretj r , on the official bond of a defaulting constable, 
 is entitled to the benefit of a discharge under tbe bankrupt 
 law, from the liabilities of the bond consequent upon the 
 constable's default. McMinn v. Allen, 67 N. 0. R. 131. 
 
 17. The jurisdiction of a bankrupt court being conceded, 
 its adjudication of bankruptcy is a judgment in rem fixing 
 
 # the status of the bankrupt which upon that point is binding 
 upon all the world, and can only be impeached for fraud in 
 obtaining it. Leivis v. Sloan, 68 N. 0. R. 557. 
 
 18. Prior to the bankrupt law, it was held in North 
 Carolina that an insolvent had a right to prefer one or several 
 among his creditors, although the effect was to hinder and 
 delay others. This right of preference is taken away by that 
 act, and the State courts are bound to hold that fraudulent 
 and void, which the act declares to be so under the condi- 
 tions which it prescribes. Every court, however, in which a 
 controversy as to the title to the property alleged to have 
 been fraudulently conveyed, may arise, has jurisdiction to 
 inquire whether the conveyance was iu fact and in law 
 fraudulent, L e whether the conditions prescribed by the act 
 to make it fraudulent, existed. Ibid. 
 
 19. An assignee in bankruptcy may sue or be sued in 
 courts of the State, on claims for or against the estate of the 
 bankrupt, our courts having concurrent jurisdiction of the 
 United States Courts, in the premises. Cogdell v JEzum, 60 
 N. 0. R. 464. 
 
 20. A, a bankrupt, brings a suit in his own name against 
 B, on the 10th day of September, 1870; on the llth of 
 March, 1872, A's assignee in bankruptcy, C, who was ap- 
 pointed the 25th of February, 1860, is made party plaintiff 
 in the suit commenced by A: held, That the right of action 
 against B accrued to C, the assignee, at the time of Irs 
 appointment, and that he was barred by the limitation con- 
 tained in section 2, of the bankrupt act. Ibid. 
 
 See (Costs 14,) (Trusts and Trustees 22.; 
 
48 BANKS AND BANK NOTES. 
 
 BANKS AND BANK NOTES. 
 
 1. A cause of action on bank bills does not accrue until a 
 demand and refusal ; and such bills bear interest only from 
 the time of demand and refusal. Crawford v. Bank of Wil- 
 mington, Phil. L. R. 136. 
 
 2. A bank which in 1860 gave to a depositor a certificate 
 setting forth that he had deposited a certain sum "in cur- 
 rent notes of the different banks oi the State,"' and the sum 
 deposited is " payable in like current notes to the depositor 
 or to his order on return of the certificate," is liable for tie 
 whole amount, with interest from date of the demand, i% 
 in currency of the United States. Fort v. Bank of Cape 
 Fear, Phil. L. R. 417. 
 
 3. " Seventy-one dollars in current bank money," in a 
 bond promising to pay that amount, held to mean current 
 bank bills calling on their face for seventy-one dollars. 
 Lackey v Miller, Phil. L. R 26. 
 
 4. By Peason, C. J , arguendo, such a bond is not nego- 
 tiable; and, after the day of payment is past, the proper 
 remedy upon it is covenant, in which case the measure of 
 damages would be the value at the time the bond became 
 due of that amount of bank bills, in United States coin. 
 Ibid. 
 
 5. The ordinary relation subsisting at com mon law between 
 a bank and its customers on a general deposit account is sim- 
 ply that of debtor and creditor. A deposit; by a customer, 
 in the absence of any special agreement to the contrary, cre- 
 ates a debt, and the payment by the bank of the customer's 
 checks, discharges such debt pro tanto. The bank or the 
 customer may at any time discontinue their dealings, and the 
 balance of the account between them can be easily ascer- 
 tained by a simple calculation. Boyden v. Bank Cape Fear , 
 65 N. Ol R. 13. 
 
 6. The general rule in adjusting a running account 
 between a bank and its customer is, "the first money paid 
 in, is the first money paid out." The first item on the debit 
 side is discharged or reduced by the first item on the credit 
 side. But this rule is not strictly applicable to a case where 
 the account commenced before the late civil war, and was 
 contiuued during it, as that part of the' account which was in 
 Confederate curreucy is not to be governed by the principles, 
 of the common law, but by the ordinance of the 18th October, 
 1865, and the acts of 1866, chs 38 and 39. The account 
 
BANKS AND BANK NOTES. 49 
 
 must be divided, and the amount due October 1st, 1861, must 
 be estimated in par funds. To give full effect to the pay- 
 ments of the bank, and allow to the plaintiff the proper value 
 of his deposits, each payment ought to be deducted from the 
 next preceding deposit or deposits, and when the deposits 
 .are in excess of the payments, a balance ought to be struck, 
 -and the value of such excess ought to be ascertained accord- 
 ing to the scale, and form a part of the general balance due 
 the plaintiff. In this way the nominal amount of the pay- 
 ments will be deducted from the nominal amount of the 
 preceding deposits. The value of the excess of the various 
 deposits at the time they were made with the premium 
 added, will constitute the true balance in the Confederate 
 currency transactions; and this sum added to the amount of 
 the par funds due October 1st, 1861, will constitute the 
 amount due the plaintiff at the time of the demand made. 
 Ibid 
 
 7. Where a bank, during the late civil war, adopted a 
 new usage and custom with its customers, with regard to 
 their deposits in Confederate currency, proof of it cinnot be 
 admitted to affect one who had been a regular customer 
 before the war, and continued such during the war, unless it 
 be shown that he had notice of the change in the ordinary 
 usage and custom of the bank as to general deposits. Ibid. 
 
 8. The fact that a regular customer sometimes made 
 special deposits of bank bills with a bank, has no tendency 
 to show that he had notice of change in the ordinary usage 
 and custom of the bank as to general deposits, for a special 
 deposit constitutes a contract essentially different from that 
 which arises by implication of law from a general deposit. 
 Ibid. 
 
 9. A special deposit is a naked bailment, and on demand 
 of the bailor, restitution must be made of the thing deposited, 
 and as the bank acquires no property in the thing deposited, 
 and derives no benefit therefrom, it is only bound to keep 
 the deposit with the same care that it keeps its own property 
 of a like description. Ibid. 
 
 10. The proper mode of obtaining relief under the act of 
 1S6<S-'6D, which makes bank bills a set-oft against judgments 
 and executions already obtained, is by a rule upon the plain- 
 tiff in the judgment or execution, which is sought to be 
 enjoined, founded upon proper affidavits, requiring him to 
 show cause why he shall not accept the bills of the bank in 
 payment of the debt, and have, satisfaction of the judgment 
 entered of record. And a notice of the rule served upon the 
 
 4 
 
50 BANKS AND BANK NOTES. 
 
 sheriff, who has the execution in hand, will operate as a 
 supersedias. Mann v. Blount, G5 N. C. I£ 99. 
 
 11. It is the rule of a Court of Equity, or of any other 
 Court, which proceeds upon the same principles, not to enter- 
 tain a bill or action, which seeks no other relief than that 
 which can be had by orders in a cause then pending. Ibid. 
 
 12. The dissolution of a banking corporation, with no pro- 
 vision of law for collecting its debts, deprives it of the power 
 to do so; but it was held, that an act of the Legislature of 
 South Carolina, passed since the war to enable its banks to 
 renew their business, or to place them in liquidation ; and a 
 decree of a court in that State declaring a certain bank to be 
 insolvent, and putting it in liquidation, did not dissolve the 
 corporation, but continued its existence for the purpose of 
 collecting its debts and winding up its affairs. Bank of 
 Columbia v. Tiddy, 07 N. C. R. 1G9. 
 
 13. The act of 18G9-'70, ch. 4, which authorizes the defen- 
 dants in judgments obtained by banks chartered by this 
 State upon a note given to, or a contract made with, a bank 
 or its officers, to pay and satisfy the same with the bills of 
 such bank, is constitutional, and construed with the act of 
 1808, ch. 17, and 1808-'09, ch. 77, in pari materia, applies as 
 well to foreign as to domestic banks. Ibid. 
 
 14. The act of 1809-'70, requiring bank bills to be received 
 in payment of judgments, rendered in favor of banks char- 
 tered prior to May 1st, 1805, is constitutional. The statute 
 is merely an extension of the principles upon which the stat- 
 ute of set-off is based, and adjusting the balances according to 
 equitable principles, interest on the bank bills, tendered in 
 payment, should be allowed from the date of the demand and 
 protest. Bank of Charlotte v. Hart, 07 N. C. R. 204. 
 
 15. A bank cannot, by assignment of its effects, choses 
 in action, &c, deprive a maker of a note due the bank of 
 his right to pay the same with the bills of the bank ; nor can 
 the bank, by any authority derived from the Legielature, 
 deprive the maker ot such right of payment of a note due the 
 bank in bills of the bank. Blount v. Windley, 08 N. C. R. 1. 
 
 10. If upon confessing judgment in a suit by a bank 
 against one of its debtors, it be agreed and entered upon the 
 docket at the foot of the judgment, that it may be discharged 
 upon the payment of a certain per cent, of the amount in 
 United States currency, or the full amount in the notes of 
 the bank, the plaintiff will be bound by the agreement, and 
 an execution issued for the full amount in United States cur- 
 rency more than two years afterwards, may be set aside, and 
 
BANKS AND BANK NOTES —BASTARDY. 51 
 
 the bankruptcy of the hank will not alter the ease. Hardy v. 
 Reynolds, 69 N. 0. R. 5. 
 
 1<>. The assignee of non-negotiable or dishonored notes, 
 (such as bank-bills protested for non-payment,) takes them 
 subject to all equities against his assignor, whether he knows 
 of them or not. Burroughs v. Bank of Charlotte, 70 N. 0. 
 R. 283. 
 
 17. In a suit between two banks for the recovery of 819,- 
 331, it is agreed by the debtor bank to pay one-half of said 
 debt and interest in cash, and to satisfy, pay and discharge 
 the balance by paying over t© the other 50 per cent, of its 
 assets as they are collected, and as may be sufficient there- 
 for, the creditor bank agreeing to accept such payment and 
 agreement as to the remainder, in "full satisfaction, payment 
 and discharge of the suit and of all matters controverted 
 therein or appurtenant:" Held, that this agreement was in 
 effect an assignment of one half the assets of the debtor bank, 
 as a security for its remaining indebtedness. Perry v. Mer- 
 chant's Bank of Neivbem, 70^N. 0. R, 309. 
 
 18. Held, further. That such assignment not being regis- 
 tered, was void against a creditor'of the bank making the as- 
 signment; and that the creditor acquired a hen on the choses 
 in action assigned, as soou as the Court below condemns them 
 to his use. Ibid 
 
 lee (Damages, 2.) (Tender and Refusal, 0.) 
 
 t<« 
 
 BASTARDY. 
 
 1. A colored woman, the mother of a bastard child, has 
 such an interest in proceedings in bastardy, within the mean- 
 ing of the act of 1800, c. 40, s. 9, as to lender her a compe- 
 tent witness against a white man, whom she alleges to be the 
 hither. State v. Henderson, Phil. L. R. 229. 
 
 2. It is not necessary for proceedings in bastardy to show 
 affirmatively that the mother of the child was a single woman. 
 State v. Allison, Phil. L. R, 346. 
 
 3. In case of bastardy the county of the mother's "settle- 
 ment" and not that of her '.'domicil" is chargeable with the 
 maintenance of the child, and settlement is gained only by a 
 continuous resdieuce of twelve months. State v. Elam, Tbil. 
 L R, 460. 
 
 4. Therefore, where the mother, having lived in Granville 
 county lor several years, removed to Franklin two or three 
 
52 BASTARDY. 
 
 mouths before the birth of the child, with a bona fide inten- 
 tion of changing her domicil, the former and not the latter 
 county, had jurisdiction of proceedings to charge the puta- 
 tive lather. 1 bid. 
 
 5. The rule, that words which, from the context, it is 
 manifest have been omitted in a deed or a will may be sup- 
 plied by construction, held, to apply also in construing records. 
 Phil. L. R. 326 Therefore, where a motion had been made 
 by the defendant in the county court to quash certain pro- 
 ceedings in bastardy, and a counter motion by the State, for 
 a continuance ; and the record proceeded thus, "thereupon 
 the court refused to quash, and continued the case to the 
 next Superior Court of Law to be held, &e-., &c, without 
 surety by consent:" held that the record showed sufficiently 
 that the defendant had appealed from the decision upou the 
 motion to quash, and therefore the cause, upon being carried 
 up, was properly constituted in the Superior Court. State v. 
 Martin, Phil. L. E. 320 
 
 0. The obligation to give bond for the maintenance of a 
 bastard, under an order of court, is not a debt, within the 
 State Constitution (Art. 1, Sec 10) abolishing imprisonment 
 for debt. Therefore, a Court may imprison a putative fath- 
 er who refuses to give such bond. Such imprisonment is to 
 be effected now under the act of April 10, 1801), in regard to 
 contempt. /State v. Falin, 63 N. C. R. 471. 
 
 7. Justices must recognize defendants in bastardy cases 
 to appear before the Superior Courts. County Commission- 
 ers have no jurisdiction of such cases, nor any judicial powers 
 whatever. State v. Waldrop, 03 1ST. C. R. 507. 
 
 8. A bastard, born in this State of a mother who has uot 
 resided in it "for twelve mouths," is chargeable for mainte- 
 nance upon the County iu which it is born. State v. Mc- 
 Quaig, 03 N. C. R. 550. 
 
 9. Upon the trial of issues in proceedings for bastardy, 
 the defendant is a competent witness. State v. Mcintosh, 
 
 64 N. C R. 007. 
 
 10. In bastardy cases the jurisdiction of the justice to is- 
 sue the warrant before the birth of the child, depends upon 
 the domicil of the mother at the time, and not on her legal 
 place of settlement; and, if the mother continues to reside in 
 the same county until the birth of her child, making her 
 whole residence therein more than twelve months, the full 
 jurisdiction of the case will be in that county. State v. Hales, 
 
 65 K C. R. 244. 
 
 11. It is not the sole purpose of the Act, relative to 
 
BASTARDY.— BILLS OF EXCHANGE, &c. 53 
 
 "Bastard Children," Rev. Code, ch. 12, to require the puta- 
 tive father to indemnify the county, but he is likewise to 
 maintain the child. State v. Beatty, 06 N. C. R. 648. 
 
 12. As to past maintenance, there is no difference be- 
 tween that and future maintenance, so far as the power of the 
 Court is concerned. Ibid. 
 
 13. When a person was charged with being the father of 
 a bastard child, and gave bond for his appearance at the next 
 term of the Court, and, before the term of the Court, the 
 child died: Held, that it was error in the Court to discharge 
 such putative father upon payment of costs, and without mak- 
 ing an order requiring him to give bond. What kind of or- 
 der, should be made in such cases, is in the discretion of the 
 Court. The statute seems to require some order in every 
 case. Ibid. 
 
 14. W T here, in the trial of an issue of bastardy, the moth- 
 er of the child was put upon the stand, having the child in 
 her arms, and the solicitor called the attention of the jury to 
 the child's features, and afterwards in his address to the jury 
 commented upon its appearance, &c, all without objection by 
 the defendant: Held, that objection to the solicitor's course 
 came too late after verdict ; and it was not error for the 
 Judge to charge that the jury might take the appearance of 
 the child into consideration, and give it whatever weight they 
 thought it entitled to. State v. Woodruff, 08 N. L. R. 89. 
 
 15. It has long been the practice in this State in Bastardy 
 cases to exhibit the child to the jury, and this Court sees no 
 objection to the practice. Ibid. 
 
 16. On the trial of issue of bastardy, the impotency of the 
 putative father, if true and proven, would be a complete and 
 satisfactory defence; it is therefore error in the Judge below 
 to reject any competent evidence, introduced tor the purpose 
 of proving that the putative father was impotent at the time 
 the child is alleged to have been begotten. State v. Broad- 
 way, 09 X. C R 411. 
 
 BILLS OF EXCHANGE AND PROMIS- 
 SORY NOTES. 
 
 1. A note payable at, or one day after date, is not within 
 the principle which excepts from the rule ;is to bona fide 
 endorsees for value, such as take notes that are overdue. 
 Parker v. StaUings, Phil. L. R. 590. 
 
54 BILLS OF EXCHANGE, &C. 
 
 2. A bona fide endorsee for value of a note so payable 
 obtains a good title against all previous parties, although 
 when endorsed it was overdue, and had been obtained by a 
 fraud upon some of those parties, committed by one through 
 whom the endorsee claims title. Ibid. 
 
 3. An endorsement of a note to a deceased person, (made 
 with intent to invest such person's personal representative 
 with the legal property therein) is a nullity. Valentine v. 
 Holloman, 63 N. 0. E. 475. 
 
 4. Endorsements by third persons of a note payable by 
 A to B, — if made at the time of its execution, bind them, 
 according to the intention of the parties, either as joint 
 principals or as sureties. Baker v. Robinson, 63 N". 0. E. 191. 
 
 5. An endorsement in blank by the payee of a note, is 
 presumed to have been intended as a transfer thereof; but 
 this presumption may be rebutted, en. gr., by parol proof 
 that it was intended to show a receipt of the money, from 
 an agent of the maker. Davis v. Morgan, 64 N. 0. E. 570. 
 
 6. A note payable "in current notes of the State of North 
 Carolina," is not negotiable; therefore, under our former sys- 
 tem an endorsee thereof could not maintain an action at law 
 upon it, in his own name. Warren v. Brown, 64 N. C. E. 
 381. 
 
 7. An endorser who pays off and discharges the note of 
 his principal can only recover from the latter the amount 
 actually paid by him. Pace v. Boberson, 65 N. C. E. 550. 
 
 8. If a note be given for the lease of a tract of land, and 
 it appears that the purpose of the lease was to raise food for 
 laborers employed to make iron for the Confederate govern- 
 ment : held, that such a note is not illegal and void on that 
 account; the courts cannot take into consideration such 
 indirect and remote consequences. McKesson v. Jones, 66 
 N. C. E. 258. 
 
 9. Where, in an action upon such note, one of the plain- 
 tiffs is introduced as a witness, and it is proposed to ask him 
 whether he did not know the purpose of the lease : held, that 
 such question is immaterial, as it could make no difference 
 whether the plaintiffs knew, or did not know, the purpose of 
 the lease. Ibid. 
 
 10. Where a promissory note was given by A as principal 
 and B as surety, the consideration of which was the hiring 
 of a substitute in the Confederate States army, and after- 
 wards the surety, at the request of the principal, paid off 
 said note at its value, and the principal gave his note to the 
 surety for the amount paid: held, that the last contract was 
 
BILLS OF EXCHANGE, &c. 55 
 
 a new and independent one, founded upon the consideration 
 of money paid at the request of the principal, and that it 
 was not affected by the illegality of the original note, nor by 
 any knowledge which the surety may have had of that fact. 
 Powell v. Smith, 66 X. 0. R. 401. 
 
 11. A note founded upon an illegal consideration, pay- 
 able one day after date, endorsed one day from its date, can- 
 not be recovered on by the endorsee. Baucum v. Smith. 66 
 N. 0. R. 537. 
 
 12. A note payable one day after date is due one day 
 after date. Ibid. 
 
 13. If money be lent to aid in the accomplishment of an 
 illegal purpose, such illegality is not purged by the borrower 
 failing so to apply the money. Hence, where money was 
 borrowed to hire a substitute for the Confederate war service, 
 and the borrower did not hire such substitute, the lender 
 cannot recover on the note given to secure such loan. Kings- 
 bury v. Fleming, 66 N". C. R. 524. 
 
 14. A single bill, given for money borrowed to pay a debt 
 theretofore contracted, by reason of the loan of money to hire 
 a substitute for the Confederate war service, is not tainted 
 with an illegal consideration. Kingsbury v. Suit 66 N. C. R. 
 601. ' 
 
 15. The act of the obligor in having previously borrowed 
 money to pay such substitute, though contrary to public 
 policy, had been completed before he borrowed the money 
 from the plaintiff, therefore the single bill, given for the 
 money last borrowed, is a new and independant contract 
 between different parties, in no way including the illegal 
 transaction and its subsequent connection with the matter 
 is too remote to affect the obligee. Ibid. 
 
 16. Where an agent of the War Department of the Con- 
 federate government issued the following instrument: " Con- 
 federate States Depository, Wilmington, pay Messrs. Colie 
 & Co., or order, twenty thousand dollars," which was endorsed 
 by the payees to the defendant, who endorsed it to another 
 person, by whom it was endorsed to the plaintiff: it was held, 
 (Rodman, J., dissenting,) that the instrument was illegal; 
 that such illegality was apparent upon its face, and extended 
 to all the endorsements. Cronley v. Hall, 67 N. C. R. 9. 
 
 17. A bona fide endorsee of negotiable notes before matu- 
 rity, takes them, according to the law merchant, free from 
 all equities or drawbacks except endorsed payments. Black- 
 *&er v. Phillips, 67 N. C R. 340. 
 
 18. Where the owner of land contracted to sell the same, 
 
56 
 
 BILLS OF EXCHANGE, &c— BONDS. 
 
 and to secure the payment of the purchase money took nego- 
 tiable notes, and afterwards, and before maturity, transfer- 
 red said notes to a third person : Held, that the vendee, upon 
 payment of said notes, was entitled to a conveyance of the 
 land. Ibid. 
 
 19. A creditor who buys at execution sale the interest of 
 a vendor in a tract of land contracted to be sold, and the title 
 of which is held as security for the purchase money, acquires 
 only the legal title, subject to the equities of the vendee. He 
 acquires no interest equitable or otherwise in the notes given 
 as the security for the purchase money Ibid. 
 
 20. If a statute declares a security void, it is void in who- 
 soever hands it may come. If, however, a negotiable secu- 
 rity be founded on an illegal consideration, (and it is imma- 
 terial whether it be illegal at common law or by statue,) and 
 no statue says it shall be void, the security is good in the 
 hands of an innocent holder, or of one claiming through such 
 holder. Glenn v. The Farmer's Bank of North Carolina, 70 
 N". 0. R 191. 
 
 21. A makes his note to B on the 7th June, 1857, and 
 on the 12th August, 1860, endorses on the back, "Pay the 
 within to D," signing his name : Held, that was not liable 
 either as an endorser or guarantor, and that his indorsement 
 merely passed the property in the note to D. Crawford v. 
 Lytle, 70 N. 0. E. 385. 
 
 22. When a defendant offers to pay a draft within fifteen 
 days, presented to him by an agent, who communicates the 
 offer to the holder of the draft, and is instructed by him to 
 grant the indulgence, which instruction is told the defendant t. 
 Held, that the offer was a continuing one, and that his condi- 
 tional acceptance bound the defendant as if it had been done 
 when first presented. Wylie, Roddy & Amis v. Brice, 70 
 N 0. R. 422. 
 
 See (Attorney, 7.) (Practice — Some miscellaneous rules 
 of practice, 8 ) (Usury, 2.) 
 
 BONDS. 
 
 I. Of their execution. 
 
 II. Of the ratification of bonds. 
 
 III. Of transfer of bonds. 
 
 IV. Of the consideration of bonds. 
 V. Bond for title. 
 
 VI. Bond given for the hire or price 
 
 of slaves. 
 
 VII. Of the construction of bonds 
 
 and their conditions. 
 
BONDS— I.— II.— Ill— IV. 57 
 
 I. OF THEIR EXECUTION. 
 
 A bond signed by the defendant before the name of the 
 obligee or the amount thereof is inserted, is not the deed of 
 the defendant, and cannot be recovered, although several pay- 
 ments have been made thereon. Burden v. Soutlierland, 70 
 N. C R. 528. 
 
 II. OF THE RATIFICATION OF BONDS. 
 
 1. Bonds issued and signed by the last chairman of the 
 county court, after the adoption of the present Constitution 
 abolishing that court, in payment of the county's subscription 
 to the capital stock of a railroad company made by a former 
 chairman according to law, which bonds were countersigned 
 by the clerk of that county and sealed with the county seal, 
 and accepted by the President of the road in payment of the 
 county subscription, are proper subjects of ratification, and 
 when such bonds are ratified, they are valid. Alexander v. 
 Commissioners of McDowell, 70 N. C. R. 208. 
 
 2. When it is omitted in the Act authorizing a county 
 to issue bonds to pay its subscription to a railroad — by whom 
 the bonds are to be signed and issued — a succeeding Legis- 
 lature has the power to amend the Act in this particular, 
 nunc pro tunc, and thus rendered valid the action of those 
 who issued the bonds without express authority. Ibid. 
 
 III. OF TRANSFER OF BONDS. 
 
 1. Bonds issued by municipal corporations, under their 
 corporate seal, payable to bearer, are negotiable, and are pro- 
 tected in the hands of the rightful owner, by the usages of 
 commerce, which are a part of the common law. Weith and 
 A rents v. City of Wilmington, 78 X. 0. R. 24. 
 
 2. The purchaser of a bond from one who is not an agent 
 of the obligee, but to whom the bonds had been given for the 
 purpose of handing it to a lawyer for collection, acquires no 
 interest therein, and cannot maintain an action lor its recov- 
 ery. McMinn v Freeman, 08 X. 0- R. 341. 
 
 IV. OF THE CONSIDERATION OF BONDS. 
 
 1. Bonds require no consideration. Howell v. Watson, 
 63 X. 0. R. 454. 
 
 2. Want, or failure of consideration, is no defence to an 
 action upon a sealed instrument. Purler v. Flora, G3 N. 0. 
 R 474. 
 
58 BOXDS— IV. 
 
 3. A person who sold mules to an agent of the Confeder- 
 ate government, with a knowledge that they were to be used 
 iu the military service of such government, cannot recover 
 upon a bond given for the price. Martin v. McMillan, 65 
 K C. E. 199. 
 
 4. A bond given in March, 1864, for Confederate money 
 borrowed at that time, payable the 1st of October of the same 
 year, " in four per cent. Confederate bonds or certificates, or 
 in Confederate currency to be issued after the 1st of April, 
 1864," is not illegal and void, and a recovery may be had up- 
 on it for an amount in United States currency, to be estima- 
 ted according to the legislative scale. Haughton v. Meroney, 
 65 N. C. E. 124. 
 
 5. Where a county contracted a debt during the late war, 
 for the purpose of equipping soldiers for the Confederate ser- 
 vice, and afterwards borrowed money to pay that debt : held, 
 that a recovery can be had on a bond given for such money, 
 on the ground that illegibility is too remote. Poindexter v. 
 Davis, 67 N. C. E. 112. 
 
 6. A note given during the late war, for money borrowed 
 expressly for the purpose of paying taxes to a county in one 
 of the rebellious States, was not founded upon illegal consid- 
 eration, and the lender was held to be entitled to recover up- 
 on it after the close of the war. Williams v. Monroe, 67 N. 
 C. E. 133. 
 
 7. Bonds given for the loan of money to A B, to be used 
 in purchasing a forge, at which iron was to be made for the 
 Confederate government, of which A B was duly informed, 
 cannot be recovered. Logan v. Plummer, 70 N- C E. 388. 
 
 8. The principle established in such cases is, that wherever 
 a dollar has been expended to destroy the life of the Eepub- 
 lic, it shall never return to the pocket of the owner. Ibid. 
 
 9. Mere inadequacy of consideration, without fraud or im- 
 position, is no defence to a suit on a bond ; nor is it an ob- 
 jection, even when equity is invoked to enforce specific per- 
 formance ; and much less is it an objection when it is invoked 
 to relieve against a contract. Winslow v. Wood, 70 N. C. 
 E. 430. 
 
 10. Where A sold a mule to B, which had a latent dis- 
 ease, of which it died within a week after sale without render- 
 ing any service of value : Held, in a suit against B, on the 
 bond given for the mule, that the failure of consideration was 
 no defence, and that A was entitled to recover. Ibid. 
 
BONDS— V. 51) 
 
 V. BOND FOR TITLE. 
 
 1. The interest of one who holds lands under a bond for 
 title, the price not having been fully paid is not subject to 
 sale under execution ; therefore, a purchaser at such a sale 
 has no equity to file a bill against the parties to the bond, 
 proffering to pay the money due thereon and asking that upon 
 such payment he may have a title. Ledbetter v. Anderson, 
 Phil. Eq R. 323. 
 
 2. A having made a bond for the title to certain land to B, 
 the latter contracted by bond to sell the same to 0, and give 
 him possession ; held that it was uot competent thereupon for 
 A and B to recind their contract so as to deprive of his 
 equity — which, as he had already paid B, was to obtain a 
 conveyance from A upon paying him whatever was due to 
 him upon his contract with B. Shaver v. Shoemaker, Phil. 
 Eq. B. 327. 
 
 3. When a purchaser of land, upon taking a bond for 
 title, gives in payment therefor a note expressing ou its face 
 it is so given, the note itself will be notice of the vendee's 
 equity in case the title of the laud shall prove defective, and 
 an assignee or holder of the note cannot, in case of such defect 
 in the title of the laud, recover on the note though he took it 
 before it became due. Howard v. Kimball, 65 N. 0. R. 475. 
 
 4. A purchaser of land is entitled to all that he bargained 
 for, and is under no obligation to accept a part only, with 
 warranty as to the other part, or to accept compensation, 
 unless the part as to which a good title cannot be made, does 
 not materially affect the value, and it is seen that the obli- 
 gation is uot taken upon the merits, but only as pretext to 
 get rid of the purchase. I bid. 
 
 5. In a suit upon a note, expressed on its face to have 
 been given for the purchase of a tract of land, the title of 
 which has proved defective, as the plaintiff cannot recover 
 upon the note, the proper jiidgmemt now to be rendered is, 
 that the contract of sale be rescinded, and that the title bond 
 and note be cancelled, so as to effect what would have been 
 done in equity under the old mode of procedure. Ibid. 
 
 6. Where, upon the sale of land, a bond to make title 
 upon the payment of the purchase money was given to the 
 purchaser, and afterwards upon the assignment of his inter- 
 est, the money was paid by the assignee : It was held, That 
 he, before a deed was executed to him had such an unmixed 
 trust as was liable to be sold under execution. Battle's Ee- 
 visal, chap. 44, sec 5. Phillips v. Davis, 69 N. 0. R. 117. 
 
60 BONDS— VI— VII 
 
 7. An intestate sells B a tract of laud for $800, putting 
 him in possession and giving him a bond to make title when 
 the purchase money is paid ; B pays part and refuses to pay 
 the balance of the purchase money. A, the Administrator, 
 sues B, demanding 1st, a rescission of the contract ; 2d, a 
 writ of possession ; and 3d, damages : held, that he is entitled 
 to neither; but that he was entitled to a judgment for the 
 unpaid balance, and to a sale of the land, if such judgment 
 is not satisfied. Mitchell v. Wood, 70 N. 0. E. 297. 
 
 8. A penal bond, conditioned to make title to laud when 
 the purchase money is paid, may be assigned, and an action 
 for damages for the non-performance of the condition may 
 be brought by the real party in interest. Utleu v. Foil, 70 
 3T. 0. E. 303. 
 
 VI. BOND GIVEN FOR THE HIRE OR PRICE OF SLAVES. 
 
 1. A bond given in January, 1867, for the hire of slaves 
 during that year is subject to no deduction on account of 
 emancipation. Woodfin v. Sluder, Phil. L. E. 200. 
 
 2. A boud given for the price of a slave sold in 1859, is 
 valid, notwithstanding the public events which have hap- 
 pened since, nor is it affected by the fact that the slave was 
 warranted such for life. West v. Hall, G4 N". 0. E 43. 
 
 3. A boud to pay money, and also to clothe a slave is not 
 negotiable, and before the adoption of the 0. 0. P., would 
 not be sued on in the name of the assignee Sutton v. Owen,, 
 65 N. 0. E. 123. 
 
 See (Confederate Mouey 37 ) 
 
 VII. OF THE CONSTRUCTION OF BONDS AND THEIR CONDITIONS. 
 
 1. Where an obligation had been given for $788, payable 
 in currency or in gold, at the rate of $146 in currency for 
 $100 in gold, at the option of the holder: held, that the 
 holder might maintain a suit upon it without making any 
 determination of his option previous to that contained in the 
 summons or complaint. Young v McLean, 63 K C. E. 576. 
 
 2. " Ten days after peace is made between the United 
 States and the Confederate States," used in a bond, to specify 
 the time at which the money is payable, mean& ten days after 
 peace, and does not render the ratification of a treaty of peace 
 between the powers mentioned, a condition precedent to the 
 payment. Chapman v. Waccaser, 64 N. C E. 532. 
 
 3. Where a note payable as above,, called for payment 
 
BONDS— VII. 61 
 
 ' u in current money at that time," the scale is expressly 
 excluded. Ibid 
 
 4. An action on a note payable " six months after a rati- 
 fication of a treaty of peace between the United States and 
 the Confederate States, is premature and cannot be sus- 
 tained. The event constitutes a condition precedent which 
 has not and will not be performed. McNinch v. Ramsay, 
 <GQ X. 0. E. 229. 
 
 5. The stipulation contained in a contract in these words, 
 viz: "A B contracts with C D to furnish, at Long Creek 
 furnace, from 500 to 1000 bushels of coal daily at 6£ cents 
 per bushel, to be measured at the pit ; C D to furnish the 
 timber gratis, wherever he may see fit, reserving groves and 
 fruit trees, and advance to A B all the money, weekly, neces- 
 sary to pay off the wood-choppers — coal to be paid for on 
 -delivery at the furnace," are dependent, and if, without fault 
 ou the part of the owner of the furnace, and without legal 
 excuse, the other fails to deliver the quantity of coal agreed 
 to be delivered, the owner of the turnace being sued for the 
 value of the coal, &c, furnished, may properly set up such 
 failure bv way of counter-claim. Burton v. Wilkes, 06 
 K C E (304. 
 
 6. The condition of a bond given by the Treasurer of a 
 Railroad Compauy that he " shall faithfully discharge the 
 duties of the office, and well and correctly behave therein," 
 does not bind him to keep the money of the company safely 
 against all hazards. It only binds him to an honest, diligent 
 and competently skillful effort to keep the money. Hence, 
 where the Treasurer deposited the money of the company 
 to his credit as such in a banking house, which was at the 
 time in good standing and credit, and was considered by the 
 community a safe place of deposit for money : it was held, 
 that he and his sureties were not responsible for its loss by 
 the sudden and unexpected failure of the banking-house. 
 Atlantic & N. C. Railroad Co. v. Cowles et al, 09 X. C. B. 59. 
 
 7. Though the officer of a railroad company is bound to 
 know the by-laws of the corporation, it does not follow that 
 the surities to his bond are presumed to know them unless 
 there be a reference to them in the bond. The obligation of 
 the sureties is confined to the words of their bond, and can- 
 not be extended beyond them. Ibid. 
 
 8. A boud payable "with interest from date, the interest 
 to be paid annually," is due and payable from date, and does 
 not require a demand upon the obligors for payment before 
 suit brought. Knight v. Braswell, 70 X. C. It. 709. 
 
02 BOUNDARY. 
 
 \ 
 
 BOUNDARY. 
 
 1. " Tin nee, N. 57, E., 34 poles, with the ditch, to a wil- 
 low stump on the bank of the ditch," — the ditch being at the 
 beginning, 18 links, and at the end 2 poles, wide, and the 
 willow stump being, not directly upon its bank, but, upon a 
 run which conveyed the water from the ditch : means, through 
 the middle of the ditch to its end, and thence down the run 
 to the widow stump. Cannier v. Henderson, 04 N. 0. R. 
 409. 
 
 2. Where the call of a deed was for a boundary on the 
 north by the land of J. K., and J. R. had at ract of land be- 
 longing to himself, part of the southern boundary of which 
 was north of the land described, and had, as tenant in com- 
 mon with another person, another tract lying also north of the 
 land in question, it seems to be erroneous in a court to charge 
 the jury merely that the call in the deed, which was for land 
 of J. R., meant the land of J. R. lying north of the land in 
 dispute. Osborne v. Johnston, 05 X. G. R. 22. 
 
 3. It is competent for one party to a suit, involving a 
 question of boundary, to show that another party to such 
 suit pointed out a certain five as his corner, if the spot des- 
 cribed by such witness, is by another witness, identified as 
 the disputed corner. West v. Shaw, 07 N. C. R. 483. 
 
 4. In questions of boundary, it is competent to prove by 
 surveyors, as experts, that the marks on trees on a certain 
 line are apparently of a certain age. Ibid 
 
 5. Where the phraseology of a deed, under which one of 
 the parties to such action claims the land, leaves it uncertain 
 whether a pond is embraced by it, or the line ran near to it, 
 but so as not to cover it, an instruction prayed : " that the 
 land of the defendant should be so located as to include within 
 its boundaries the (said) pond," was properly refused. Ibid. 
 
 0. A tree marked and called for as a pointer, with a line 
 of marked trees leading to the other corner, must control dis- 
 tance. I bid. 
 
 7. It is settled, that where a tract of land is described by 
 course and distance, and also by natural boundaries, and 
 there is a discrepancy, the latter description controls. Upon 
 this principle, it teas held, that when a town lot was sold, 
 and in order to identify it the number or name of the lot 
 was given, and reference was also made to streets, the latter 
 description must give way to the former; tor the lot was the 
 object and not the street ; and t\ie description, in pursuance 
 
BOUNDARY.— BURGLARY. 63 
 
 of the primary object for which the lot was numbered or 
 named, is less apt to be erroneous than the description by 
 reference to the number or name of the street, as tliat is 
 incidental, and is secondary, and not the primary object for 
 which the streets were named. Nash v. Wil. & Weldon JR. 
 B. Co., 64 K O.K. 413. 
 
 8. What are the termini or the boundary of a grant or 
 deed, is a matter of law ; where the termini are, is matter of 
 fact tor the jury. Therefore, where there was evidence tend- 
 ing to establish a certain corner at a particular place, it was 
 errror in the presiding Judge to say, as a conclusion of law, 
 the corner was at a different place. Clark v. Wagoner, 70 
 K". 0. R. 706. 
 
 BURGLARY. 
 
 1. Where a prisoner in the night time knocked at the door 
 of a dwelling-house, and on being challenged from within gave 
 his name in a feigned voice as that of a friend, and thus ob- 
 tained immediate admittance, and then committed a robbery: 
 held, to be burglary. State v. Johnson, Phil. L. R. 186. 
 
 2. Where A and B are jointly indicted with others, for 
 wilfully setting fire to and burning a barn containing grain, 
 and the evidence showed that A and B were not present, but 
 were accessories before the fact : held, that they could not be 
 convicted as principals under this indictment. State v. Dearer, 
 65 K O. R. 572. 
 
 3. The effect of the act of 1868-'69, ch. 167, entitled "an 
 act in relation to punishments," was not to make " misde- 
 meanors" of offences which were formerly felonies. Ibid. 
 
 4. A building within the curtilage, and regularly used as 
 a sleeping-room, is in contempation of law a dwelling-house 
 in which burglary can be committed. State v. Mordecai, 68 
 1ST. 0. R. 207. 
 
 5. The house in which the burglary was committed, and 
 that occupied by the family of the prosecutor were distant 30 
 yards from each other: held, to be no error in the Judge's 
 refusing to charge that one could not have two dwelling-houses 
 in that distance from each other. Ibid. 
 
 6. The defendants went to the store-house of the prosecu- 
 tor, in which he was sleeping, between the hours of 10 and 11 
 o'clock at night, and knocking at the door called h s name 
 twice ; he answered the call, and told them to wait until he 
 
64 BURGLARY.— CARTWAY.— CERTIORARI. 
 
 put on his breeches, which he did and opened the door, when 
 the defendants entered the house and called for meat, and as 
 the prosecutor was in the act of getting the meat he was 
 knocked down by one of the defendants, and the store rob- 
 bed: held, to be a sufficient breaking^) constitute the crime 
 of burglary. Ibid. 
 
 7. An indictment for burglary iu breaking into a dwelling 
 house is not sustained by proof, that the prisoner broke out 
 of the house. State v. McPherson, 70 K". 0. R, 239. 
 
 CARTWAY. 
 
 The record of an order made in a county court for laying 
 out a cart way recited — "seven justices being present," — 
 without giving their names; held that such record was fatally 
 defective, and the order void. Link v. Brooks, Phil L. R. 499. 
 
 CERTIORARI. 
 
 1. Where a sheriff having returned an execution " satis- 
 fied," afterwards by leave of court, amended the return thus: 
 " Eeceived from the defendant Confederate money for the 
 debt, which the plaintiff refuses to take, therefore the sale is 
 not satisfied, and the same is returned that an alias may issue 
 to sell the land ;" and then taking out such alias, levied upon 
 the land : held, that the petition of the defendant in such 
 execution praying for a certiorari and supersedeas, ought not 
 to have been dismissed, but should have been placed upon 
 the trial docket. Atkin v. Mooney, Phil. L. R. 31. 
 
 2. Where a suitor iu the Court of Equity for Person 
 county made up his mind to appeal from an order, before 
 Thursday of the term, and was prevented from doing so by 
 the previous departure of the Judge : held, that it was a 
 proper case for a certiorari. Reade v. Hamlin, Phil. L. R. 
 128. 
 
 3. At Spring Term, 1867, the plaintiffs appealed to the 
 Supreme Court from a decree made at that Term ; at the 
 June Term, 18G7, of the Supreme Court they were informed 
 that the case had not been sent up; but they took no further 
 steps until January Term, 1809, when they tiled a petition 
 in the Supreme Court for a certiorari ; held, that as the 
 
CERTIORARI.— CLAIM AND DELIVERY, &c. G5 
 
 petitioners disclosed no merits in regard to the original cause 
 of action, and had been guilty of laches iu preferring their 
 application — the petition should be refused. March v. 
 Thomas, 63 N C. R. 249. 
 
 4. Where a matter involves the power of the Superior 
 Court and error in its exercise, as where in a capital case, a 
 Judge improperly discharges a jury, and refuses to discharge 
 the prisoner; the record of the court below may be brought 
 up for review by a writ of certiorari iu the nature of a writ 
 of error. Art. 4, sec. 10 Constitution. State v. Jefferson, 
 66 N. C. R. 309. 
 
 5. In such case the proper course is to ask for a rule to 
 show cause why the writ should not issue, and as a founda- 
 tion for the order, the court will require a petition in due 
 form. Ibid. 
 
 6. If a party is deprived of an appeal without his laches, 
 he is entitled to a certiorari, as a substitute for au appeal. 
 Skinner v. Maxwell, 61 N. R. 257. 
 
 7. Au appeal may be taken without the sanction of a 
 Judge, it the parties can make out the case by agreement, 
 and without his intervention. But whether they can perfect 
 an appeal, not only without the sanction but iu spite of the 
 prohibition of the judge; Quere? — Ibid. 
 
 8. Though au appeal may be brought up iu spite of the 
 prohibition of a Judge, yet, as the practice has been so uni- 
 formily the other way, the Court would not feel at liberty to 
 refuse a party a certiorari, as a substitute for the remedy of 
 which he had been deprived. Ibid. 
 
 9. In a petition for a certiorari, as a writ of false judgment, 
 it must be affirmed or shown that a judgment was rendered; 
 if the certiorari is applied for as a substitute for an appeal, 
 the party must show that he has been improperly deprived 
 of his appeal, or has lost it by accident. Barton, Ex parte, 
 70 N. C. R. 134. 
 
 See ( Contempt, 10.) (Pleading — Of the verdict and judg- 
 ment, 14.) 
 
 CLAIM AND DELIVERY OF PER- 
 SONAL PROPERTY. 
 
 1. To entitle a party to maintain an actiou for claim and 
 delivery of personal property, there must be a compliance 
 with all the requisites specitied in chap. II of title 9, C. C. P. 
 5 
 
66 CLAIM AND DELIVERY, &c. 
 
 (Battle's Rev. e. 17, s. 176, et seq.) Hersh v. Whitehead, 65- 
 N. C. R. 516. 
 
 2. In actions to recover the possession of personal prop- 
 erty, the plaintiff may not, if he please, make the affidavit 
 and give the undertaking required for the immediate delivery 
 of the property to him. If he do not, his judgment, if he 
 succeeds, is for the possession of the property, or for its value,, 
 and damages for detention, as in the old action of detinue. 
 Jarman v. Ward, 67 N. 0. R. 32. 
 
 3. To maintain an action to recover the possession of per- 
 sonal property, whether resort is had to the provisional rem- 
 edy of the Code of Procedure or not, the plaintiff must show 
 title or right to the present possession of the property sued 
 for, which must be specific and be identified by a sufficient 
 description. Blaldey, Assignee, v. Patrick, 67 N. C. R. 40. 
 
 4. When the owner of property is deprived of possession, 
 and regains the same, he may, in an action brought against 
 him, and as full defence thereto, show his title to the prop- 
 erty, notwithstanding that, in the reception, he may have 
 committed an act calculated to produce breach of the peace. 
 Alsbrook v. Shields, 67 N. C. R. 333. 
 
 5. Therefore, where a person is sued for the conversion of 
 a bale of cotton, he may set up a lieu under a subsisting lease 
 and show his title as landlord, and is not compelled to resort 
 to an action for "claim and delivery," under the act of 
 1868-'69. Ibid. 
 
 6- A plaintiff claiming such property is not restricted to 
 the remedy of ''claim and delivery," but may bring an action 
 in the nature of trover. Ibid. 
 
 7. An action for the recovery of the possession of personal 
 property, (in the nature of detinue under our old system,) will 
 not lie against one who was not in possession of the property 
 at the time the action was commenced. Haughton v. New- 
 berry, 69 N. C. R. 456. 
 
 8. Nor can a plaintiff in such action, under a general pray- 
 er for "other relief," recover the judgment warranted by the 
 facts proven. For although the names and technical forms- 
 of actions are abolished by the Constitution, yet in the very 
 nature of things, there must be distinctions in respect to the 
 remedies applicable to different cases. Ibid. 
 
 9. In an action for claim and delivery of personal prop- 
 erty (Replevin, Rev. Code, chap. 98), when the property can- 
 not be re-delivered by plaintiff in specie, the value thereof, in 
 case of a judgment for defendant, should be assessed at the 
 time of the trial, and not at the time of its seizure by the 
 sheriff. Holmes v. Godwin, 69 N. C. R. 467. 
 
CLAIM, &c— CLAIMS AGAINST THE STATE. 67 
 10. 
 
 In an action for the possession of personal property, 
 see. 170, C. C. P., a third party claiming such prop- 
 erty, looses his right to be made a party to the suit, after a 
 lapse of three years from the filing his affidavit and his mo- 
 tion to allow him to interplead. Clemmons v. March. 70 
 N. C. R, olU. 
 
 11. Whether such claimant can appeal from an order of 
 the presiding Judge, refusing his application to be made a 
 pa rty — f J u ere. I b id. 
 
 See (Damages o.) 
 
 CLAIMS AGAINST THE STATE. 
 
 1. The provision in the new Constitution (Art. 4, s. 11,) 
 giving to the Supreme Court original jurisdiction to hear 
 claims against the State, &c, probably intends that such 
 hearing shall be chiefly of the law involved in any such claims, 
 including only such general observations upon the facts as 
 may be required to render the rules of law laid down, iutelli- 
 gible in their special appplication. At all events, this must 
 be so in the absence of further legislation, providing the 
 court with the proper machinery for deciding issues of tact. 
 Bledsoe v. The State, S. P. Reynolds v. The State 04 
 N. C. R. 392, 400. 
 
 2. AVhere a person was, before the late civil war, the hona 
 fide holder of two bonds ot the State, which had been issued 
 ten years before for purposes of internal improvements, and 
 which were then due and payable, and in 1802, received from 
 the State in payment thereof treasury notes to the amount 
 of the bonds, which expressed on their face that they were 
 fundable in the bonds of the State, thereafter to be delivered, 
 and the bonds had never been delivered, it was held, Rod- 
 man, Justice, dissenting, that the claim was founded upon an 
 illegal consideration and the State was not bound to pay it. 
 Bead v. The State of N. C, Go N. C. R. 194. 
 
 3. That provision in the Constitution of the Stale, art, 4, 
 sec. 11, which ordains that "the Supreme Court shall have 
 original jurisdiction to hear claims against the State, but its 
 decision shall be merely recommendatory," &c., ought not to 
 be invoked in matters of small value, particularly when there 
 is no doubt about the law. The claimant should apply at 
 once to the Legislature for relief. Sainc/air, Owens and 
 Brown, v. State of N. C, 07 N. C. R. 47. 
 
68 CLERKS AND MASTER. 
 
 CLERKS AND MASTER. 
 
 1. A Clerk and Master who sold slaves under a decree in 
 a petition for partition, and instead of taking bond as a de- 
 cree directed, received cash, is, with his sureties, liable for 
 the amount so received upon motion for a summary judg- 
 ment under Rev. Code, ch. 78, sec. 5; and this, whether an 
 action on the bond would or would not lie for the money as 
 received "by virtue of his office." Broughton v. Haywood, 
 Phil. L. R. 380. 
 
 2. By Pearson, C. J. A Clerk and Master, who sells 
 under an order to sell upon a credit, has a discretion to take 
 cash instead of bond and security, and is liable to a suit on 
 his bond for such money, as received " by virtue of his office." 
 Ibid. 
 
 3. When a clerk takes a bond payable six months after 
 date, if the debtor tenders the money at the day, the clerk 
 is bound to receive it without waiting for an older for collec- 
 tion. Ibid. 
 
 4. The various solvent sureties given by a Clerk and 
 Master upon the annual bonds of any one term of office, are 
 liable to contribution, inter se, in a ratio determined by the 
 aggregate of the penalties of the bonds signed by each. 
 Moore v. Boudinot, 04 N. C. R. 190. 
 
 5. A Clerk and Master who failed to issue an execution 
 based upon a decree obtained in 1800, until 1808, when the 
 defendant had become insolvent, is liable in damages for 
 whatever sum the plaintiff can show he has sustained by such 
 non-feasance. Mclntyre v. Merritt, 05 N. 0. R. 558. 
 
 6. A Clerk and Master who executed bouds as such in 
 180O-'04-'0O, and collected in May, 1802, a well secured 
 note, in Confederate currency, where he was directed only to 
 collect the annual interest due thereon, and invested the 
 proceeds in 7 30 Confederate bonds : held, that the bond of 
 the defendant, given in 1800, was not liable for the laches of 
 defendant in May, 1802. Ward v. Hassell, 00 N. C. R. 381). 
 
 7. In an action assigniug certain breaches of the official 
 bond of a Clerk and Master, it is competent for the defend- 
 ant, under a general denial of the complaint, to offer in evi- 
 dence any circumstance tending to prove that the acts com- 
 plained of were not a breach of the bond as alleged. Clapp 
 v. Reynolds, 08 K C. R. 24. 
 
 8. Where the allegation was, that the Clerk and Master 
 did not invest a certain fund, and pay the relator the annual 
 
CLERKS, &c.— CLERK OF SUPERIOR COURT. 69 
 
 interest, evidence that the fund was deposited in a Savings 
 Rank in the presence, and to the credit of the relator, who 
 afterwards received the annual interest from the bank, is 
 admissible, under a general denial of the complaint, to prove 
 that the condition of the bond was not broken. 1 bid. 
 
 0. The successor of a former Clerk end Master, who 
 received bonds given tor the purchase of certain lands sold 
 by the former, collected the same and misapplied the proceeds 
 is liable therefor on his official bond, although there was no 
 order for the former Clerk and Master to hand over such 
 bonds to him. Alexander v. Johnston, 70 N. 0. R. 295. 
 
 See (Confederate money 5, 31, 32, 33, 38.) (Sales — Judi- 
 cial sales passim.) 
 
 CLERK OF THE SUPERIOR COURT. 
 
 1. A Clerk is not liable upon his official bond, for a failure 
 bv him to issue ex <ijici<> a, notice to a guardian, to renew his 
 bond. State v. Low?, (14 X. C. It. 500. 
 
 2. When the Clerk of a Court refuses to issue an execu- 
 tion to which a plaintiff is entitled on his judgment, he has 
 two remedies for enforcing his rights. He may obtain a rule 
 on the clerk as an officer of the Court to compel him to per- 
 form his duty, oi be subject to an attachment for a contempt; 
 or he may sue the clerk on his official bond. He is not en- 
 titled to a writ of mandamus against the clerk. Gooch v. 
 Gregory, 65 X. C. R, 142. 
 
 3. The Clerk of the Superior Court is not styled in the 
 Constitution -'Probate Judge," nor is he directed to be so 
 styled by any act of assembly, and his Probate Jurisdiction 
 is incident to his office of Clerk. Sialey v. Sellars, Go X. 0. 
 R. 467. 
 
 4. Hence, a motion to dismiss a special proceeding be- 
 cause it was addressed to the Clerk of the Superior Court, in- 
 stead of to the Judge of Probate, was properly refused. Ibid. 
 
 5. When money is invested by a clerk or other officer un- 
 der the orders of a Court, the clerk or other officer cannot 
 change the investment without the sanction of the Court or 
 the parties, and if he does so he will be responsible for any 
 loss that may accrue, for he will be held to a much stricter 
 accountability than a guardian or trustee would be under 
 similar circumstances, because the clerk or other officer might 
 get the consent of the parties or the advice and direction of 
 
70 CLERK, &c— CODE OF CIVIL PROCEDURE. 
 
 the Court, while the guardian or trustee would be compelled 
 generally to act upou his own judgment. Bountree v. Bur- 
 nett, 09 K C. R. 76. 
 
 6. While generally a clerk or other officer cannot change 
 an investment which he has made under the order of a Court, 
 yet if a sudden and unexpected loss is threatened, he may do 
 so, but in such cases he must show a necessity for such prompt 
 action, and that he acted in good faith and with ordinary 
 prudence; and he must as soon as he can report his action 
 to the Court. Ibid. 
 
 7. Whenever it is sought to establish an authority in a 
 clerk, to bind a plaintiff by the receipt of depreciated cur- 
 rency in payment of a judgment, it must be shown either 
 that the receipt was expressly authorized by the plaintiff, or 
 that the plaintiff has done acts from which such an authority 
 may fairly be implied. Purvis v. Jackson, 09 K 0. R. 174. 
 
 8. Acts from which such any agency in the clerk beyond 
 what the law (Rev. Code, chap. 31, sec. 127,) gives him, may 
 be implied, must be such as under the circumstances were 
 reasonably calculated to induce the debtor to believe that the 
 clerk was ihe creditor's agent for the purpose; as for instance, 
 that the creditor had procured an order to collect the money ; 
 or had issued an execution without instructing the sheriff 
 what kind of money he was to receive in payment, &e. And 
 if, from such acts the debtor has reasonably been led to believe 
 that the clerk was authorized to receive payment of a judg- 
 ment in Confederate money, and acting on that belief,, pays 
 the judgment in such money, it is immaterial whether the 
 clerk was really the agent or not ; the creditor being estop- 
 ped from denying the agency, and the debtor protected in his 
 judgment. Ibid. 
 
 See (Confederate money, 22-23-24-25.) (Judgments — 
 Satisfaction of judgments, 2-3-4.) 
 
 CODE OF CIVIL PROCEDURE.. 
 
 1. Actions pending at the adoption of the CO. P., are 
 to be tried under the laws previously existing. Walton v. 
 McKesson, 04 N. C. R. 154. 
 
 2. The Code of Civil Procedure is one Act, aiM' no part of 
 it went into effect before the 24th of August, 18V«ft.; therefore 
 a suit asking for an injunction, begun August 22nd, 1868,. 
 properly conformed to the old practice. Raylmjlx*. Currhi^ 
 04 N. C. B, 355. 
 
CODE, &c— COLOR OF TITLE. 71 
 
 3. Where a defendant in a case at law, pending at the 
 adoption of the C. C. P., wishes, subsequently to such adop- 
 tion, to place his defence upon some equitable principle, he 
 must resort to an action, in the nature of a bill in equity, and 
 the relief to be had thereby, in analogy to former practice, 
 must be agaiust execution in the suit so pending, all other 
 opposition to the plaintiff's recovery being waived. Johnson 
 v. Mc Arthur, 04 N. C. R. 675. 
 
 4. Therefore, where the plaintiff, in a civil action, alleged 
 that the defendant therein had previously brought actions, 
 of trespass and ejectment, against him, which were still pend- 
 ing, and that the title sought to be enforced by such defen- 
 dant, was based upon a deed that was fraudulent in equity, 
 and prayed that such deed should be delivered up for cancel- 
 lation ; and also moved for and obtained an injunction agaiust 
 the future prosecution of the previous suits : held, that the 
 order should be vacated, and the action dismissed. Ibid. 
 
 5. By the effect of the statute which suspends the Code of 
 Civil Procedure, the proceedings of the latter as to docketing 
 such judgments as are taken in the Court where docketed, are 
 suspended; and the 18th rule of practice laid down by the 
 Supreme Court (03 N. C, 009) operates to make all judg- 
 ments during any term relate to the first day of such term. 
 Norwood v. Thorp, 04 K C. R. 082. 
 
 6. Such relation takes effect even when the Judge fails 
 to open court upon the first day. Ibid. 
 
 7. The provision (C. C. P., s. 390,) that where the Judge 
 fails to appear at any term until the fourth day thereof inclu- 
 sive, the sheriff shall adjourn the court until the next term, 
 does not avoid the acts of any term where, upon the non- 
 appearance of the Judge, the sheriff did not in fact adjourn 
 the court, and the Judge afterwards, (here, in the second 
 week) actually appeared and held court. Ibid. 
 
 8. The rules of pleading at common law, in regard to 
 materiality, certainty, prolixity, obscurity &c, prevail un- 
 der the Code of Civil Procedure. Crump v. Mims, 04 
 K C. R. 707. 
 
 See (Constitution 41, 42.) 
 
 COLOR OF TITLE. 
 
 1. A paper writing purporting to be a will, proved before 
 the proper tribunal, in 1810, by the oath of one witness, is 
 
72 COLOR OF TITLE.— COMMON CARRIERS. 
 
 color of title for tbe lands disposed of therein. McConnell v.. 
 McDonnell, 64 N. C. R. 342. 
 
 2. (A sketch given of the history of the doctrine of color 
 of title in this State.) Ibid. 
 
 COMMON CARRIERS. 
 
 1. It is the duty of a Railroad Company to deliver articles 
 at the usual places of delivery. Therefore, where a hogs- 
 head ot molasses, instead of being landed on a platform the 
 usual place for heavy articles, was lost in an attempt to 
 deliver it to the plaintiff at an unusual and an unfit place, 
 the company was held responsible. Benbow v. Railroad Co , 
 Phil. L. R. 421. 
 
 2. Where a Carrier, upon being applied to by the owner 
 to deliver certain cotton, (then at its depot, and in its posses- 
 sion for transportation) to another Railroad Company, de- 
 clined to do it, or to allow the owner to do it — promising to 
 deliver it itself, within three days: held, that it was gross 
 negligence for such carrier to allow the cotton to remain un- 
 delivered for several months afterwards and until it became 
 rotten by exposure to the weather. Glenn v. C. & S. (/. R. 
 R. Co., 03 N. 0. R. 510. 
 
 3. Semble, That a Common Carrier for hire, can protect 
 himself by an express contract, to such an extent only as will 
 render his liability no greater than that of a Special Carrier 
 for hire ; also, that to lender a parol contract to that effect 
 binding upon the other party, there should be a consideration. 
 therefor; and that otherwise it would be nudum pactum. 
 Ibid, 
 
 4. Although a common earlier cannot by a general notice 
 to such effect, free itself from all liability for property by it 
 transported ; yet by notice brought to the knowledge of the 
 owner, it may reasonably qualify its liability; and by a special 
 contract with him, it may relieve itself from its peculiar 
 liability as common carrier, and in such case it will remain 
 liable for want of ordinary care, i. e., f,r negligence. Smith 
 Sc Melton v. The N. C. R. R. Co., 64 N. 0. R. 235. 
 
 5. Where a special contract exists, the burden of proof in 
 regard to negligence is upon the plaintiff. Ibid. 
 
 0. Where the facts are agreed upon, or otherwise appear, 
 the question of negligence is one for the court; where such 
 facts are in dispute, it is proper for the court to explain the 
 
COMMON CARRIERS. 73 
 
 rule as to negligence, upon any particular hypothesis as to 
 the facts, and leave the application to the jury. Ibid. 
 
 7. Where a railroad company, being unprovided with the 
 means of arresting sparks (" spark-arresters,") gave notice 
 that it would transport cotton at half rates, in case it were 
 relieved from risk as to fire, and thereupon an agent of the 
 owner, (who besides, had a special understanding with the 
 company to the same effect as regards tire risk,) shipped 
 cotton upon the road at half rates : held, that bare proof of 
 destruction by tire whilst being transported by the company, 
 would not entitle the owner to recover damages for such loss. 
 Ibid. 
 
 8. When goods are shipped to a consignee, over a railway, 
 the shipper cannot, by notice to the carrier, compel him to 
 stop the goods at an intermediate point. Pinnix v. Charlotte 
 & Columbia R. R. Co., 66 N. C. R. 34. 
 
 0. Whether an agent of such carrier may not bind his 
 principal by au express contract to hold the goods quere, but 
 such contract must, at least, be an express one. Ibid. 
 
 10. Where tobacco was shipped from Thomasville, via 
 Charlotte and consigned to a party in Columbia, and was sent 
 oft from Charlotte by rail to Columbia according to the bill 
 of lading, and the tobacco was received by the consignee in 
 Columbia, but no express contract to hold at Charlotte was 
 shown, the measure o: the shipper's damages is the cost to 
 send it back, or what it would have cost to send it back, and 
 compensation for the delay. Ibid. 
 
 11. The receipt of the tobacco by the consignee, and 
 having it stored, was not a waiver of the liability of the de- 
 fendant, for sending it without orders, for the plaintiffs were 
 not obliged to give up their tobacco by refusing to receive it 
 at Columbia, and charge the whole value to the defendant, 
 nor were they obliged to send it back and charge the defend- 
 ant with the expense and delay ; they had their election to 
 receive the tobacco, keep it in Columbia and charge the de- 
 fendant with what it would have cost to put the tobacco back 
 in the place from which it was wrongfully sent. Ibid. 
 
 12. The shipment of tobacco from Charlotte to Columbia, 
 on the 4th day of February, 1805, cannot be deemed the 
 proximate cause of its loss by the burning of Columbia by 
 Gen. Sherman, on the 17th of the same montn. Ibid. 
 
 13. The policy of the law requires common carriers to use 
 a high degree of care, in transporting passengers, to guard 
 against probable injury. Lambeth v. North Carolina B. R* 
 Co., 66 ST. C R 494. 
 
74 COMMON CARRIERS. 
 
 14. It is their duty to transport and place their passen- 
 gers safely at the point of destination, and if injury to the 
 passenger ensues from a failure to observe due care, the car- 
 rier is prima facie responsible. Ibid. 
 
 15. Where a passenger jumped off of a railroad train, 
 while running at a speed of from two to four miles an hour, 
 and this was the proximate cause of the injury complained 
 of, and contributory negligence is alleged, the true criterion 
 of the care required from the passenger is that degree which 
 may have been reasonably expected from a sensible person in 
 such situation. Ibid. 
 
 10. A passenger on a railroad train had a right to expect 
 that the carrier had employed a skillful and prudent conduc- 
 tor, who had experience and knowledge in his business suffi- 
 cient to correctly advise and direct him as to the proper time 
 and manner of alighting from the train. Ibid. 
 
 17. Where, when the usual'signal was given for slacken- 
 ing the speed of the train, the conductor went with a pas- 
 senger and his companion out on the platform to assist them 
 in getting oft safely, and such passenger, without any direc- 
 tions from the conductor, voluntarily increased danger by 
 jumping off the train while in motion, the carrier is not 
 
 responsible for an injury resulting therefrom; but if the 
 motion of the train was so slow that the danger of jumping 
 off would not be apparent to a reasonable persou, and the 
 passenger acted under instructions of the conductor, then the 
 defence of contributory negligence would be unavailing. 
 I bid. 
 
 18. Where there was evidence tending to prove that the 
 intestate of the plaintiff informed the conductor that he 
 wished to get off at a certain point, and on approaching the 
 place, the conductor went with him and another, upon the 
 platform of a rear-car, and the intestate got upon the step of 
 the platform, preparatory to springing off, the conductor 
 cautioned him not to "jump off yet," and when, a few mo- 
 ments after, the conductor said "now is your time, jump," 
 and thereupon he jumped off and on to a platform, fell down 
 and rolled under the train and was killed, the train at the 
 time going much slower by degrees than before the brakes 
 were blown on, the other passenger alighting immediately 
 after the intestate, running along with the train, rather than 
 jumping off at right angeis, that he was not able to "take 
 up" for several yards, that intestate, when he jumped off, 
 had under his left arm a stencil-plate about the size of an 
 ordinary barrel-head, between two pieces of very thin plank, 
 
COMPROMISE.— CONFEDERATE MONEY. 75 
 
 also, a satchel of sufficient capacity to bold two quarts, to 
 which were attached light leather straps, passing around his 
 .shoulders, and that intestate also had a book, in size, ten 
 inches by five, and plaintiff requested the following instruc- 
 tions to the jury: "that if the jury should find that the 
 defendant did not stop its train along side of the place where 
 the intestate desired to alight, and that the couductor, while 
 passing such place, (a platform) and when the cars were mov- 
 ing at from two to four miles an hour, directed the intestate to 
 alight, and he obeyed the direction, he was justified iu doing 
 so, and his act, iu law, was not contributory negligence, hin- 
 dering a recovery:" held, that the refusal of the court, to 
 give such instructions, was erroneous, and entitled the plain- 
 tiff to a venire de novo. Ibid. 
 
 COMPROMISE. 
 
 If a plaintiff has, by his promise to compromise and take 
 less than the whole of his demand, induced any other creditor 
 to accept a composition and discharge the defendaut from 
 further liability, he cannot afterwards enforce his claim, since 
 it would be a fraud upon that creditor. But an agreement to 
 accept a less sum, does not bar a demand for a greater, when 
 there is no other consideration. Hayes v. Davidson, 70 N. 
 O R. 573. 
 
 See (Attorney at Law, 11.) 
 
 CONFEDERATE MONEY. 
 
 1. A creditor having, in March, 1863, refused to accept 
 Confederate or State notes for certain debts contracted before 
 the late war, the debtor brought to him a bond upon a third 
 party for the amount, payable to the creditor, and he agreed 
 to take it iu discharge of the debt provided the debtor would 
 sign it as surety. lie did so, and the former evidences of 
 indebtedness were cancelled : held, that the debtor became a 
 guarantor of the bond, and was liable in assumpsit for the 
 full, amount, without reference to the laws providing for a 
 scale of debts contracted during the war. Carter v. McGehee, 
 Phil. L. R. 431. 
 
 2. The fact that the consideration of an agreement (made 
 
76 CONFEDERATE MONEY. 
 
 in 1802,) was Confederate Treasury Notes, does not invali- 
 date it; contracts upon such consideration being ratified by 
 an ordinance of the Convention, (Ordinances of 1805, p. 5(1,) 
 and chs. 38 and 31) of the Acts of Assembly of I860, which 
 do not conflict with the Constitution of the United States. 
 Phillips v. Hooker, Phil. Eq. R. 193 
 
 3. By Pearson, C. J. In 1802 Confederate treasury notes 
 being the only circulating medium in the State, ordinary 
 dealings in them were not accompanied with criminal indent 
 to aid the rebellion, and were therefore not illegal and void. 
 This rule applies to executory as well as executed contracts. 
 Ibid. 
 
 4. By Beade, J. A contract is not void merely because 
 there is something immoral or illegal in its surroundings or 
 connections ; therefore, the issuing of Confederate treasury 
 notes was illegal, but the use of them after they were issued^ 
 was not illegal Ibid. 
 
 5. A payment in Confederate treasury notes to a Clerk 
 and Master, in December, 1803, of the amount of a bond 
 given upon a sale of land for partition, does not discharge 
 the bond; but the obligor is entitled to a credit for the value 
 of the notes at the time of payment, and the Clerk and 
 Master is chargeable with such value. Emerson v. Mallett., 
 Phil. Eq. R 234. 
 
 0. An officer with authority to collect, and without 
 instructions to the contrary, might before the year 1863 pro- 
 perly receive Confederate notes in payment of debts con- 
 tracted before the war. No rale can be laid down with 
 reference to the collection of such debts during that year., 
 but after 1803, he was not justifiable in receiving Confederate 
 notes. Ibid. 
 
 7. Contracts the considerrtion of which was Confederate 
 money, are not therefore illegal. Turleij v. iVowell, Phil. 
 Eq. li 301. 
 
 8. Guardians and other trustees, who had in their hands 
 for management, during the late war, funds belonging to in- 
 fants or other cestui/ que trusts, were bound to use for such 
 persons only that care which prudent men exercise in relation 
 to their own affairs. Cummings v. Mebanc, 03 N. C. R. 315. 
 
 9. It was not imprudent for a guardian to receive Con- 
 federate money in December, 18(52, from a debtor of his ward, 
 who tendered it upon his being about to leave the State; but 
 if such guardian mixed the money so received with his own, 
 and both amounts were lost at the expiration of the war, he 
 will be responsible to his ward for its value in the present, 
 currency, with iuterest from the time of receiving. Ibid. 
 
CONFEDERATE MONEY. 77 
 
 10. A trustee will not be permitted, to tbe injury of a 
 cestuy que trust, to substitute bis own Confederate money, 
 when greatly depreciated, for more valuable trust funds. 
 Capehart v. Etheridge, 63 N. C. R. 353. 
 
 11. Tbe rule of diligence imposed upon executors and oth- 
 ers having trust funds in their bauds during the hue war, — as 
 regards dealing in Confederate money, is, that of a prudent 
 man in managing his own affairs. Shipp v. Hettrick, 03 N. 
 C. R. 329. 
 
 12. Although one acting as trustee, may not in a parti- 
 cular case have made himself responsible by receiving in 18G2 
 or 1803 Confederate money for his cestuy-que-trust, yet if he 
 do not invest it when received, or at least do not make a spe- 
 cial deposit of it, or keep the identical money separated from 
 all other, he will be held liable for the value of what he re- 
 ceived, with interest. Ibid. 
 
 13. A Sheriff who has been instructed by the plaintiff" to 
 receive upon an execution "cash in bank bills of the State, 
 or specie, 7 ' received upon it its amount in Confederate cur- 
 rency, and endorsed "satisfied: 11 upon returning it to the 
 Clerk his attention was drawn to the instructions upon the 
 writ, and thereupon he withdrew it, erased " satisfied," and 
 entered "Received, August 30th, 1804, the amount of this 
 execution in Confederate currency notes, which plaintiff re- 
 fused to accept:" held, that the judgment was not discharg- 
 ed; and therefore, that the defendant bad no right at a sub- 
 sequent term to move that alias writs of execution which had 
 been issued, should be set aside. McKay v. timitherman, 
 04 N*. C R. 47. 
 
 14. An execution can be satisfied only by a seizure aud 
 sale of property ; or by payment in coin, or in such currency 
 as the plaintiff gives the officer express or implied authority 
 to receive. Ibid. 
 
 15. In ordinary dealings during the late war without 
 design to aid the rebellion, Confederate treasury notes were a 
 sufficient consideration to support a contract. Kingsbury v. 
 Lyon. 04 X. C. R. 128. 
 
 10. Whether an administrator is blamable for selling 
 property at a time when he could only obtain for it Confed- 
 erate money, {here, November, 1803,) depends upon circum- 
 stances, viz : the sort of property sold, whether perishable or 
 other — the unwillingness of the creditors, &c, to receive such 
 currency, and the like. Kerns v. Wallace, 04 N. C. R. 187. 
 
 1 7. It is not true, as a general proposition, that a mere 
 sale at such a time imports negligence ; therefore, where the 
 
78 CONFEDERATE MONEY. 
 
 case showed do circumstances indicating negligence : hcld 7 
 that, as the presumption was in favor of innocence the admin- 
 istrator was not ehargahle with the consequent loss. 1 bid. 
 
 18. Where executors collected the funds of an estate in 
 Confederate money, in 1,861, 1862 and up to February, 1803, 
 f >r the next of kin living in Tennessee, and the latter received 
 such money without objection until, in the process of the war, 
 communication was cut off; and thereupon the executors 
 invested it in Confederate certificates, State Treasury notes, 
 and other securities — all of which failed by the results of the 
 war: held, that they had exhibited ordinary care in this res- 
 pect, and were not responsible for the loss. Cobb v. Taylor* 
 64 N. C. R. 193. 
 
 19. A note given for land sold in November, 1864, upon 
 credit, with the understanding at the time of said sale that 
 payment would be required in "-undepreciated money," does 
 not mean specie, or its equivalent. Blackburn v. Brocks, 65 
 N. C. It. 413 
 
 20. The time and circumstances under which said note 
 was given are to be considered in ascertaining the intention 
 of the parties, and these things, together with the conditions 
 of sale, indicate that payment was to be made in money 
 receivable in the ordinary commercial and business trans- 
 actions of the country. 1 bid. 
 
 21. Before entering the Confederate service, A placed in 
 the hands of B Confederate currency to be applied to the 
 support of A's family. The latter died in December, 1862, 
 when B administered upon his estate, paid off the debts of 
 his estate, and retained in kind the money deposited with him 
 by A: held, that B was not liable for the value of said cur- 
 rency. Hagans v. HuffsteUer, 65 N. C. R. 443. 
 
 22. The receipt by a Clerk of the Superior Court of Con- 
 federate money in satisfaction of a docketed execution from 
 this Court, in pursuance of the provision of the Rev. Code, 
 ch. 33, see. 6, after such money became depreciated (April, 
 1862,) in contravention of the directions of the plaintiff, 
 amounts to a satisfaction of the execution to the extent of 
 the value of the Confederate money in gold, to be ascertained 
 by the legislative scale of the date of such payment, and the 
 clerk is liable on his bond to the same extent. Greenlee v. 
 Sudderth, 6o N. 0. R 470 
 
 23 ins ich case the plaintiff may elect to repudiate the 
 action of the clerk, and recover the whole amount due in the 
 execution from the defendant therein, or may ratify his 
 action, and demand of him the amount of the gold value of 
 
CONFEDERATE MONEY. 79 
 
 the Confederate money so received, and recover the balance 
 of his execution from the defendant therein : aliter, had the 
 payment been made to the plaintiff Ibid. 
 
 24. A ratification of the action of the clerk, beyond the 
 extent of the value of the money, will not be presumed by 
 reason of his demanding in his complaint judgment fur the 
 whole amount of the execution. Ibid. 
 
 25. As the clerk's liability arises from his agency as above 
 stated, he is not liable for interest until a demand, and in 
 the absence of any evidence of demand in this case, the 
 defendants are liable for interest, only from the commence- 
 ment of the action. Ibid. 
 
 2(3. Where the defendants in an action of debt upon a 
 promisory note, given in 18(52, proposed to prove that the 
 consideration of the note was Confederate money, and that 
 fact was admitted by the plaintiff in the action : held, that 
 such evidence was immaterial. Terrell v. Walker, 66 
 R C. R. 244. 
 
 27. Under the ordinance of 1865, and the act of 1866-7, 
 a party to an action has a righ", to show that the consideration 
 of the note sued on, was property, and the value of the 
 property; and when money was borrowed, to rebut the pre- 
 sumption of the law, by proving that it was not to be paid in 
 Confederate currency, but iu some other money or article. 
 Ibid. 
 
 28. Evidence cannot be introduced to contradict or vary 
 a written contract, except in the case authorized by the act 
 of 18G'6-'67. The general rule of evidence in reference to 
 such contracts, being still in force, with the exceptions stated. 
 Ibid. 
 
 29. Where a note was given in 1863, payable two years 
 after date, and to be paid in the current funds of the country 
 when due : held, that the Act of 1866-67, which raises the 
 presumption that all contracts to pay money, made during 
 the war, were intended to be payable in Confederate money, 
 cannot apply where the writing itself shows a different iutent. 
 When the contract is to pay so many dollars, evidence may 
 be received to show that the real agreement was to pay in 
 some other money than Confederate currency. McKesson v. 
 Jones, 66 N. C. R. 458. 
 
 30. The Act of the General Assembly of 1866-'67, en- 
 titled "an act relating to debts contracted during the war," 
 and allowing either party to show on the trial, the considera- 
 tion of the contract, and the jury in making up their verdict, 
 to take the same into consideration, is not unconstitutional. 
 
80 CONFEDERATE MONEY. 
 
 Therefore, it was not erroneous, in a Judge to instruct a jury, 
 that in making up their verdict, they might consider the 
 value of the article sold, notwithstanding there was an agree- 
 ment that the price should be paid in confederate currency. 
 King v. W. dt W. It. B. Co., 00 N. C. 11. 277. 
 
 31. A collecting officer or agent, without instructions to 
 the contrary, is authorized to receive, in payment of such 
 debts as he may have to collect, whatever kind of currency is 
 received by prudent business men for similar purposes, and 
 whatever an officer is authorized to receive, a debtor is author- 
 ized to pay. Baircl v. Hall, 07 N. G. K. 237. 
 
 32. When, therefore, a Clerk and Master, in the year 
 1803, received Confederate currency in payment of the 
 purchase money, due for lands sold in 1848, it is to be deter- 
 mined upon the principle above stated, whether the money 
 should have been taken or not. If not, the master is respon- 
 sible for the value ol the currency, and the purchaser entitled 
 to a credit pro tanto, and in a proceeding against him, to 
 collect the money or re-sell the land, the master should be 
 made a party. Ibid. 
 
 33. Where instructions are given, or the parties interested 
 assent to the payment of Confederate money to the Master, 
 he and the purchaser are released from any liability therefor. 
 Ibid, 
 
 34. When the widow and heirs at law unite in a petition 
 to sell the lauds descended, she electing to take the value of 
 her dower in money, and she becomes the purchaser and re- 
 sells to a third pcson: it was held, that in a proceeding 
 against the second purchaser to collect the money or re-sell 
 the land, he is entitled to a credit for the value of the dower, 
 and likewise for the value of the shares of any one or more 
 of the heirs at law who were capable of assenting, and did 
 assent to payment in Confederate currency. Ibid. 
 
 35. Confederate treasury notes were issued by that gov- 
 ernment with the intent that they should circulate as money, 
 and praticahy, both by banks and individuals, they were 
 deemed and treated in all ordinary business as money. 
 Wootcn v. Sherrard et al , 08. N. C. R. 334. 
 
 30. Whether a Sheriff is authorized, when not instructed 
 to the contrary by plaintiff, to receive and defendant to pay 
 Confederate treasury notes in payment of an execution, 
 depewds upon the fact, whether at that time in that county 
 prudent business men were taking such Confederate notes in 
 payment of similar debts. Uttey, Guard'n v. Young et al > 
 68 N. C. E. 307. 
 
CONFEDERATE MONEY.— CONSTABLES. 8L 
 
 37. The value of a promisory note, dated March, 1863, 
 payable on demand, is the sum due upon applying the Legis- 
 lative scale at the time the note was made, and not when 
 payment was demanded. State v. Coivles, 70 N. 0- R. 124. 
 
 38. In August, 1802, Confederate notes constituted the 
 ■currency of the country. And a Clerk and Master, acting 
 under an order of the court to collect, is protected in receiv- 
 ing such money in payment of notes given for the purchase 
 of laud; and although lie had no authority to invest the 
 money and would have been liable for any loss arising from 
 such investment, still, having invested the same in good faith 
 in Confederate bonds equally as good as the currency itself, 
 he_ cannot be held responsible for their loss, occurring by the 
 results of the war. Mabnj v. Englekard, 78 N. 0, 11. 377. 
 
 39. The value of a note, payable on the 1st day of Jan- 
 uary, 1800, in Confederate money, given for the hire of slaves 
 for the year 1805, is the value of such hire for the term of 
 hiring, although the slaves were emancipated during the 
 time. Such contract bears interest from 1st day of January, 
 1800. Dowd v. North Carolina E, R. Co., 70 N. C. R. 408. 
 
 See (Guardian and Ward — Powers, Duties and Liabili- 
 ties of Guardians, 1, 3, 0, 12, 13, 14, 19, 21 25, 35, 37, 42, 
 60,63) (Partnership, 22, 23.; (Payment, 1.) (Trust and 
 Trustees, 7, 8, 10.) 
 
 CONSTABLES. 
 
 1. A constable in whose hands a claim was placed for col- 
 lection on the 16th March, 1861, who took no steps to collect 
 till January, 1863, when he collected in Confederate currency, 
 is responsible after a demand in 1866, for the full amount of 
 the claim, notwithstanding the stay laws of May aud Sep- 
 tember, 1861. Lipscomb v. Cheek, Phil. L. R. 332. 
 
 2. A constable does not subject himself to the penalty of 
 $100 given by the Rev. Code, ch. 34, s. 118, by declining to 
 receive process which at the time it urns tendered he could not 
 have executed ; ex gr. process against a person theu attend- 
 ing under subpoena before a commissioner. Fentress v. 
 Brown, Phil. L. R. 373. 
 
 3. No action will lie against a constable for money re- 
 ceived by him in his official character, until after a demand. 
 Kicett v. Massey, 63 N. C. R 240. 
 
 4. Where a person gave bond as Constable in February, 
 
 6 
 
82 CONSTABLES.— CONSTITUTION. 
 
 1856, and also in February, 1857, and received claims for col- 
 lection in April, June and July, 1856: held, if the claims were 
 collected in 1856, that suit should have been brought upon 
 said bond, and that' it was incumbent upon the relator of the 
 plaintiff to prove that the claims were not collected in 1856, 
 and were in the Constable's hands after the date of the bond 
 sued on. Taylor v. Galbraith, 65 N. C R. 409. 
 
 5. The statute of limitation on a Constable's bond is sus- 
 pended from 20th May, 1861, to January 1st, 1870. Ibid. 
 
 See (Jurisdiction — Of Justices in civil cases, 9.) (Office 
 and officer, 17.) 
 
 CONSTITUTION. 
 
 1. The tax imposed upon " dead heads " by the act of 
 1860-'61, ch. 31, sec. 12, is valid. Gardner v. Hall, Phil. L. 
 R. 21. 
 
 2. Such a tax is not a " capitation tax," within the mean- 
 ing of sec. 3, art. 4, State Constitution, (Amendments of 
 1836); nor is it a violation of the charter of the Wilmington; 
 & Charlotte Railroad Company. Ibid. 
 
 3. A question having been made in the Superior Court 
 as to the constitutionality of an act which gave defendants 
 further time to plead : held, that inasmuch as the statute 
 had been repealed before judgment was pronounced in this 
 court, (especially, as the appeal had already given the defen- 
 dant all the delay that he asked,) the court would not enter- 
 tain the queslion merely for the purpose of settling the inci- 
 dental question of costs. Burbank v. Williams, Phil- L. 
 R. 37. 
 
 4. The provisions in the State Constitution for the call of 
 a Convention do not profess to extend to every case in which 
 such a call mav be required. In the matter of Hughes, Phil. 
 L. R. 58. 
 
 5. The anarchy in North Carolina resulting from the 
 close of the late war, having for the time annulled the provi- 
 sions under the State Constitution for such a call, it was- 
 competent and proper for the United States to afford to the 
 people an opportunity of electing delegates to a Convention. 
 Ibid. 
 
 6. The delegates thus assembled composed a rightful 
 Convention of the people. Ibid. 
 
 7. The authority of that Convention is not affected by 
 
CONSTITUTION. 83 
 
 the fact that some of the citizens of the State, not having 
 been then pardoned, were not permitted to vote at the elec- 
 tion. Ibid. 
 
 8. The elections had and the officers chosen by virtue of 
 the ordinances of that Convention, are such cle jure. Ibid. 
 
 9. A retrospective law taxing the business of citizens 
 during the whole of the current year in which such law is 
 passed, is not unconstitutional. State v. Bell, Phil. L. R. 75. 
 
 10. A law punishing a prospective refusal to render for 
 taxation an account of business done before the passage of 
 the law, is not ex post facto. Ibid. 
 
 11. It was competent for the State in October, 1865, to 
 pass a law taxing busiuess done at any time during that year 
 at any place within its boundaries, even although within what 
 were called "the Federal lines," and at places where there 
 were then no civil officers. Ibid. 
 
 12. The functions of a court in respect to statutes are but 
 two: 1st, to ascertain their meaning: and, 2, to decide upon 
 their constitutionality. Ibid 
 
 13. Persons licensed under the revenue laws of the United 
 States, are not thereby "officers" of the United States, or 
 withdrawn from the operation of the taxing powers of a State. 
 Jbid. 
 
 14. It is not a ground for arrest of judgment, that the de- 
 fendant was convicted upon an indictment found by a grand 
 jury in 1803, while the rightful State government was sus- 
 pended. State v. Sears, Phil. L. R. 14(3. 
 
 15. An indictment is a judicial proceeding within the 
 meaning of the Ordinance of the Convention of 1865, entitled 
 "An Ordinance declaring what laws and ordinances ^are in 
 force," &c. Ibid 
 
 10. The Convention in adopting that ordinance did not 
 exceed its powers; nor is the ordinance in the nature of an 
 ex post facto law. Ibid. 
 
 17. The provisions of the ordinance of October, 1865, in 
 regard to the value of certain executory contracts " solvable 
 in money," do not conflict with the Constitution of the Uni- 
 ted States. Woodfin v. Sluder, Phil. L E. 200. 
 
 18. The clause of the Ordinance of the Convention of 
 June, 1866, entitled "An Ordinance to change the jurisdic- 
 tion of the courts," &c, which provided that no scire facias 
 should be thereafter issued to revive dormant judgments, and 
 that every scire facias then pending should be dismissed at 
 defendants' cost, is not unconstitutional. Parker v. Shannon- 
 house, Phil. L. K. 209. 
 
84 CONSTITUTION. 
 
 19. All retroactive legislation is not unconstitutional. 
 Hinton v. Hinton, Phil. L R 410. 
 
 20. Retroactive legislation is competent to affect reme- 
 dies, but not to affect lights. Ibid. 
 
 21. The act of February, 1SGG, giving widows further 
 time for dissenting, is constitutional, and applies to a case in 
 which at its passage the widow was barred under the act of 
 1784. Ibid. 
 
 22. By the Court (Pearson, C. J., Hodman, J., and Dick, 
 J '. f concurring.) It is competent for a tax-payer to file a 
 complaint on behalf of himself and all other tax-payers in 
 the State, whereby to enjoin the issue of State Bonds under 
 an unconstitutional Act of Assembly. Galloway v. Chatham 
 B. R. Co., 63 K C. R. 147. 
 
 23. The Act of the 18th of December, 18G8, in requiring 
 the Treasurer of the State to subscribe for stock in the 
 Chatham Railroad Company, and to pay for the same by 
 Issuing Bonds of the State, is unconstitutional, under art. 5, 
 sec, 5, clause 2, of the Constitution of the State. Ibid. 
 
 24. That clause adds to the restrictions in the former 
 clause of the same section, peculiar restrictions of its own in 
 the cases covered by it. Ibid. 
 
 25. A subscription for stock in a corporation and issuing 
 bonds to pay for such stock, is a gift of the credit of the 
 State, within the meaning of Art. 5, sec. 5, clause 2, above. 
 Ibid. 
 
 20. Per Rodman, J. Even if the bonds of the State were 
 at par, the General Assembly could not give or lend its 
 credit without submitting the question to the people. Ibid. 
 
 27. Also, the test of bonds being at par is, whenever ki 
 the particular transaction the State receives in legal money 
 the sum which she becomes liable to pay. Ibid. 
 
 28. The distinction between officers and placemen, is, that 
 the former are required to take an oath to support the Con- 
 stitutions of the State and of the United States ; whilst the 
 latter are not. Worthy v. Barrett, 63 N. O R. 199. 
 
 29. All officers under the government of the United 
 States are either Legislative, Executive or Judicial officers. 
 Ibid. 
 
 30. Sheriffs, County Solicitors and other officers required 
 to take an oath to support the Constitution of the United 
 States by the laws of this State [Rev. Code, ch. " Oaths," 
 &c.,] are within the operation of Article XIV of the Amend- 
 mendments to the Constitution of the United States, dis- 
 qualifying certain persons from holding office. Ibid, 
 
CONSTITUTION. 85 
 
 31. A county attorney is within the provisions of the 
 XI Vth Amendment of the Constitution of the United States, 
 disqualifying certain persons from holding office. Tate, ex- 
 parte, 63 N. C. R. 308. 
 
 32. The Acts of January 30th, 18G9, and April 1st, 1869, 
 in regard to " the University Railroad Company " are invalid ; 
 because — by Pearson, C. J., Reade, Dick and Settle, J J., no 
 corporation is created thereby, and therefore there is no 
 grantee to take the franchises specified. University R. R 
 Co. v. Holden, 63 N. C. R. 410. 
 
 33. By Pearson, C. J., and Rodman and Dick, J J. The 
 question involved therein of an expenditure by the State, has 
 not been decided by a vote of the people. 1 bid. 
 
 34. By Pearson, C J., The proportions and limitations 
 upon taxation, required by Art 5, Sec. 1, of the State Con- 
 stitution, have not been observed. Ibid 
 
 35. By Rodman and Did; J J., Conceding that an inchoate 
 corporation is created by the acts in question, the "Direc- 
 tors" required for its consummation have not as yet been 
 duly appointed, inasmuch as to such appointment the State 
 Constitution renders a confirmation bg the Senate, iudispen- 
 sible. Ibid. 
 
 36. The propositions and limitations (ubi supra,) do not 
 apply to taxes laid for the purpose of paying either the inter- 
 est or the principal of the public debt, as it existed at the 
 adoption of the Constitution, or for special county purposes^ 
 (as in Art. 5, Sec. 7, of the Constitution.) Ibid. 
 
 37. By Reade, Dick and Settle, J J. The proportions and 
 limitations (ubi supra)) apply only to the taxes laid for the 
 ordinary and current expenses of the State, and includes none 
 of the objects of expenditure referred to in Sees. 4 and 5, of 
 the same Article. Ibid. 
 
 38. By Pearson, C. J. They apply in all of State or 
 County taxation, except provisions, (1) for the public debt as 
 it existed when the Constitution was adopted, (2) for casual 
 deficits, insurrection and invasion, and (3) for county taxation 
 for special purposes. Ibid. 
 
 39. By Rodman, J. They apply (except in regard to the 
 public debt, as it existed at the adoption of the Constitution) 
 equally in regard to all State taxes whatever, but not with 
 equal force to all ; being, in some matters, imperative; in 
 others, only directory to the Legislature, — whose decision in 
 such case is conclusive, and cannot be reviewed by the judi- 
 ciary. In this latter class are included, taxes, (1.) to supply 
 casual deficits, to suppress invasions and insurrections; (2.) 
 
S6 CONSTITUTION. 
 
 for the ordinary and legitimate purposes of the State, and (3.) 
 to construct unfinished railroads. Ibid. 
 
 40. By Pearson, J., and Rodman and Dick, J J. (Dis- 
 sentiente, Read, J.) As the Legislature cannot give or lend 
 the credit of the State to others for the purpose of construct- 
 ing new Rail Roads, without the sanction of a vote of the 
 people, so, a fortiori, it cannot without such sanction, engage 
 in such construction directly. Ibid. 
 
 41. _ The Act of March 18, 1809, "Suspending the Code 
 of Civil Procedure in certain cases," is not unconstitutional 
 in requiring writs in civil cases to be "returned to the regu- 
 lar term of the Superior Court," &c, instead of to the Clerk's 
 office as heretofore. McAdoo v. Benbow, 63 N. C. R. 461. 
 
 42. The phrase " Superior Court " in Art. 4, Sec 28, of 
 the State Constitution, does not mean the Court of the Clerk 
 Ibid 
 
 43. A Statute may be in part constitutional, and in part 
 unconstitutional. Johnson v. Winslow, 63 N. C. R. 552. 
 
 44. The Constitutional prohibition, (Art. 4, Sec. 10,) of 
 trial of "issues of fact" by the Supreme Court, extends to 
 issues of fact as heretofore understood, and does not hinder 
 that tribunal from trying, {ex. gr.) such questions of fact as 
 may be involved in a consideration of the propriety of con- 
 tinuing or vacating an order for a provisional injunction. 
 Heilig v. Stokes, 63 N C. R. 612. 
 
 45. The Constitution of the United States does not forbid 
 a State from altering the rule of evidence which heretofore 
 excluded parol evidence offered to contradict or vary the terms 
 of a written contract. Robeson v. Brown, 63 N. C. R. 544- 
 
 46. The charter of a Railroad Company, granted in 1852, 
 provided, that " the said Railroad and all engines, cars and 
 machinery, and all the works of said Company, together with 
 all profits which shall accrue from the same, and all tbe prop- 
 erty thereof of every description, shall be exempt from any 
 public charge or tax whatsoever for the term of fifteen years ; 
 and thereafter the legislature may impose a tax not exceeding 
 twenty-five cents per annum on each share of the capital stock 
 held by individuals, whenever the annual profits shall exceed 
 eight per cent" The annual profits had never exceeded eight 
 per cent- : held, that the Legislature, in 1869, might, not- 
 withstanding, levy, and authorize to be levied, an ad valorem 
 tax not exceeding two-thirds of one per cent, upon the fran- 
 cMse, rolling stock and real estate of such Compauy. The B. 
 & a. B. B^ Co. v. Beid, 64 N. 0. C 155. 
 
 (Note the decision in this case and that of the W. & W. 
 
CONSTITUTION. 87 
 
 R, R. Co. v. Reid were overruled by the Supreme Court of 
 the United States, 13 Wallace, 264-269) 
 
 47. Arguendo : All contracts between the sovereign and 
 its citizens, as in bank and railroad charters, are made sub- 
 ject to any change of circumstances that future events may 
 develope, and to the permanent right and duty of the State 
 to regulate the currency, and to preserve its own existence 
 by equal taxation. Ibid. 
 
 48. Regulations of taxation iu such charters, are, rather, 
 rough estimates of what will be required, things remaining as 
 they are, than contracts holding in all events ; say, even after 
 the disasters which the common fund, liable to taxation, 
 suffers by a great war. Ibid. 
 
 49. The theory that such regulations are contracts iu the 
 ordinary sense, has issued in refinements, devised in order to 
 escape its results ; such as the sub-division of corporations, 
 for taxing purposes, into franchise, stock, dividends, &c, — 
 an exhaustion of the chartered restraints upon the power of 
 taxation in one or more of which, is held not to affect that 
 power over others. Ibid. 
 
 50. A charter, granted in 1833, provided that all the 
 property purchased by the officers of the company should 
 vest iu the shareholders " iu proportion to their respective 
 shares, and the shares shall be deemed personal property ; 
 and the property of said company aud the shares therein, 
 shall be exempt from any public charge or tax whatsoever :" 
 held, that the Legislature might, notwithstanding, iu 1869, 
 levy an ad valorem tax upon the franchise. W. & W. R. 
 Co. v. Reid, 64 N. C. E. 226. 
 
 51. The act of 1868-'69, ch. 102, " To authorize the 
 Commissioners of Rockingham county to levy a special tax," 
 &c, is constitutional. Broadnax v. Groom, 64 N. C. R. 244. 
 
 52. By comparing the act of 1864-'65, ch. 32, with that 
 of 1868-'69, ch. 74, sec. 20, as well as from the principle 
 involved therein, — injunctions to restrain the collection of 
 taxes, will be allowed only where a question of the existence 
 of Constitutional power is involved, and not where the ques- 
 tion is as regards matters only of detail, ex. gr. the valuation 
 of property, the sufficiency of a Sheriffs bond, &c. Ibid. 
 
 53. Whether a law authorizing the Commissioners of a 
 particular county to levy taxes for the purpose of buildiug 
 bridges, is a private or a public-local law ? Quwre. Ibid. 
 
 54. If a private act be certified by the presiding officers 
 of the two branches of the Legislature as duly ratified, it is 
 not competent for the judiciary te go behind such record, 
 
88 CONSTITUTION. 
 
 and enquire collaterally, {ex. gr ) whether the thirty days 
 notice of an application therefor, required by the Constitution, 
 have been given. lMd. 
 
 55. An act giving the special approval of the Legislature 
 to county taxation for special purposes (Const. Art. V. Sec. 
 7,) need not specify the sum to be raised by such taxation^ 
 nor a limit beyond which it cannot be carried ; details are not 
 proper in such statutes, — these should be left to the Com- 
 missioners. Ibid. 
 
 56. It is doubtful whether it be practicable for the courts 
 to give effect to regulations imposed by Constitution upon 
 the exercise of the tax power: Whether the power to tax do 
 or do not exist, is a proper subject for judicial enquiry: 
 Whether the exercise of a conceded power in any particular 
 case were proper, is to be left to tne constituents of the body 
 which imposes the taxation. Ibid. 
 
 57. When an injunction was sought against levying a tax, 
 on the alleged ground, that it was to be applied to build a 
 particular bridge which was to be constructed at an incon- 
 venient place, was connected with no public road, was upon 
 a plan too costly, and was therefore, unconstitutional : held, 
 that, as the general head of repairing and building bridges 
 came under the " necessary expenses" of the county, it was 
 not competent for the court to review a decision of the County 
 Commissioners as to what particular bridge, as regards either 
 location or description, is, or is not necessary. Ibid. 
 
 58. The "equation of taxation" established by the Con- 
 stitution of 1808, (Art. V, Sec. 7,) does not apply to prevent 
 a county from providing for the payment of its debts existing 
 when that Constitution was adopted. Pegram v. Comm % r$ of 
 Cleaveland Co., 64 K C. R. 557. 
 
 59. By Pearson, V. J. and Dicli, J , The Constitutional 
 duties of the Justices of the Supreme Court did not forbid 
 their compliance with a request by the General Assembly 
 elected in 1868, to indicate what would be the construction 
 by the court, of the Constitutional provisions relating to the 
 tenure of the office of the members of that Assembly ; but, 
 Contra, by Read e, Rodman and Settle, JJ. Opinion of the 
 Justices, 64 K C. R. 785. 
 
 60. The 31st section of the Act of 1868- r 69, ch 156, en- 
 titled an Act in relation to landlord and tenant is unconsti- 
 tutional, because it professes to confer upon Justices of the 
 Peace jurisdiction to administer the same remedies to pur- 
 chasers of land under execution against the defendant there- 
 in, as to landlords against their tenants, contrary to the 15th. 
 
CONSTITUTION. 89 
 
 and 33d sections of the 4th article of the Constitution, which 
 confer exclusive original jurisdiction upon the Superior Courts 
 of all civil actions, in which the title to real estate may come 
 in question. Credit v. Gibbs, 65 N. C E, 192. 
 
 61. Those sections of the Act of 1868-'9, ch. 256, which 
 give summary proceedings before Justices of the Peace, in 
 favor of landlords, to recover possession of lands from their 
 tenants who hold over after the expiration of their leases, are 
 not unconstitutional, because, in consequence of the doctrine 
 of estoppel, the title to the real estate cannot come in ques- 
 tion. Ibid.. 
 
 62. The act of the Legislature of February 2d, 1871, au- 
 thorizing the Board of Commissioners to appoint a tax col- 
 lector for the county of Lincoln, is unconstitutional. Kinyv. 
 Commissioners of Lincoln, Go N. C. E. 603. 
 
 63. An office is property. There is here a contract be- 
 tween the sheriff and the State that he. will discharge the 
 duties of the office, and it cannot be abrogated or impaired 
 except by the consent of both parties. Ibid. 
 
 64 The powers of the Courts to declare statutes uncon- 
 stitutional is a high prerogative, and ought to be exercised 
 with great caution ; they should " not declare a statute void, 
 unless the nullity and invalidity of the act are in their judg- 
 ment placed beyond a reasonable doubt; and such reasonable 
 doubt must be solved in favor of legislative action." King v. 
 Wilmington & Weldon B. B. Co., 66 N. C. E. 227. 
 
 65. The Act of the General Assembly of 1866-7, entitled 
 " An Act relating to debts contracted during the war," and 
 allowing either party to show, on the trial, the consideration 
 of the contract, and requiring the jury in making up their ver- 
 dict to take the same into consideration, is not unconstitu- 
 tional. Ibid. 
 
 66. The Acts of the General Assembly, restoring to mar- 
 ried women, their common-law right of dower, are unconsti- 
 tutional, so far as they apply to marriages contracted prior to 
 their passage. Wesson v. Johnson, 66 N. C. E. 189. 
 
 67. The power of the Legislature to confer criminal juris- 
 diction on the Chief Magistrates of towns and cities, stands 
 on a different footing from the power to confer civil jurisdic- 
 tion. State v. Pender, 66 N. C. E. 313. 
 
 68. By the 4th section of Article IV, of the Constitution, 
 the judicial power of the State is vested in a court for the 
 trial of impeachments, a Supreme Court, Superior Courts, 
 and Special Courts. The jurisdiction of Special Courts is 
 defined by section 19 of the same xVrticle. Ibid. 
 
90 CONSTITUTION. 
 
 _ 69 The act of 1868-'69, ch 178, and cb. 2, of the par- 
 ticular act, sec. 1, page 432, gives (among other officers 
 enumerated) to Mayors, Superintendents of Police or other 
 chief officers of cities and towns, power " to cause to be kept 
 all laws made for the preservation of the public peace," &c , 
 and ch. 3, sec. 1, of the same act gives them power to issue 
 process for the apprehension of persons charged with any 
 offence, and to execute the powers and duties conferred in 
 this chapter," but no final jurisdiction is given to them by 
 any part of said act. Ibid. 
 
 70. The power thus given to the chief officers of towns, 
 &c, can be supported by the authority given the Legislature 
 by the Constitution, to create special courts for cities and 
 towns, and it can be no objection to the act in question, that 
 it does not authorize these officers to try persons charged 
 with misdemeanors, but simply to arrest and bind them over. 
 Ibid. 
 
 71. There is nothing in the Constitution, taken altogether, 
 prohibiting the Legislature from giving to cities and towns 
 the power of selecting and designating their chief officers. 
 Ibid. 
 
 72. The 22nd section of article 4 of the Constitution, 
 which provides " the State shall be divided into twelve dis- 
 tricts, for each of which a Judge shall be chosen, who shall 
 hold a court in each county, at least twice a year, to continue 
 for two weeks," does not by express words, or necessary 
 implication restrict the Legislature from passing an act 
 authorizing a Judge, under certain circumstances, to continue 
 a court longer than two weeks. State v. Adair, (50 N. C. E. 
 298. 
 
 73. Therefore, sec. 397, O O P., which authorizes a judge, 
 "in case the term of a court shall expire while a trial for 
 felony, &c, is in progress, to continue the same as long as 
 may be necessary for the purposes of the case," is not uncon- 
 stitutional. Ibid 
 
 74. The act of the General Assembly, entitled, " An act 
 for the better government of the Penitentiary, ratified the 
 1st day of April, 1871, violates section 10, of article 3, of the 
 Constitution, and is therefore void. People ex rel. Welker et 
 al. v. Bledsoe et al, 68 N. 0. R. 457. 
 
 75. Chapter 16, section 1, Laws of 1870-'71. purporting 
 to repeal altogether section 8, chapter 41, of the ordinances of 
 Convention of 1868, which fixes the compensation of the 
 Commissioners to report a Code of Civil Procedure, &c , is 
 
CONSTITUTION". 91 
 
 unconstitutional and void. Bailey v. Caldwell, Gov., 68 
 N. 0. R. 472. 
 
 7G. The act of 2d of February, 1 872, entitled, " An act in 
 relation to the election ot Keeper of the Capitol," is void, and 
 confers no power on the General Assembly to appoint that 
 officer. People ex rel. Rogers v. McGoivan, G8 N. 0. R. 520. 
 
 77. The 9th section of the Act of 1868-'69, chapter 70, 
 which enacted that "no property shall be sold under any 
 •deed of trust or mortgage, until the debts secured in said 
 deed are reduced to judgments according to provisions of this 
 act," was unconstitutional, because it not only attempted to 
 impair the obligation of a contract, but to alter it by adding 
 a condition. (The above section was repealed by the Act ot 
 1869-70, chap. 29) Latham, Ex'r, e,t al. v. Whiihursl, 69 
 N. O R. 33. 
 
 78. Although there is no clause iu the Constitution of 
 North Carolina which expressly prohibits private property 
 from being taken for public use without compensation; and 
 although the clause to that effect in the Constitution ot the 
 United States applies only to acts by the United States, and 
 not to the government of the States, yet the principle is so 
 grounded in natural equity, that it has never been denied to be 
 a part of the law of North Carolina. Johnston v. Rankin, 70 
 N. C. R. 550. 
 
 79 The Act of 1863, Private Acts, chap 47, authorizing 
 the Commissioners of the town of Asheville to extend the 
 streets, &c, is not unconstitutional because of the manner 
 therein prescribed, providing compensation to the owners of 
 the land taken or injured by extending such street. Ibid. 
 
 80. The Act of l86S-'69, chap. 272, and the Act amend- 
 atory thereof, 1871-'72, chap. 15, authorizing the Governor 
 of the State to appoint Special Terms of the Superior 
 Courts, are not unconstitutional. And in appointing such 
 Special Terms, the Governor is not bound by the certificate 
 of the Judge, so far as to confine snob terms to the trial of a 
 particular class of cases. State v. Ketchey, 70 N. C. R. 621. 
 
 See (Amnesty, 11, 12, 13.) (Attorneys at Law, 10.) (Banks 
 and Bank Notes, 13, 14 ) (Confederate Money, 30.) (Stay 
 Law.) (Counties and County Commissioners, 5, 7. (Drain- 
 ing Wet Lands, 7.) (Taxes and Taxation, 17, 18, 19, 20, 
 21, 29, 31, 32, 33, 34, 35 ) (Homestead and Personal prop- 
 erty Exemption, 1, 2, 7, 21, 30.) (Mandamus, 11, 12.) 
 
92 CONTEMPT. 
 
 CONTEMPT. 
 
 1. One who has been committed under an attachment for 
 not paying a sum of money to a party as ordered, can be dis- 
 charged only by payment, or by resorting to the relief given 
 by the insolvent debtor's act. Wood v. Wood, Phil. L. R. 538. 
 
 2. The act of 1866-7, abolishing imprisonment for debt, 
 does not embrace cases of commitment nuder attachment for 
 a failure to comply with an order of court. Ibid. 
 
 3. Courts have power in North Carolina to order counsel 
 to pay the costs of cases in which they have been guilty of 
 gross negligence (even of a kind not included in Rev. Code, 
 ch. 9, s- 5,) such conduct being a sort of contempt. Bobbins 
 and Jackson, ex parte, 63 N. C. R. 309. 
 
 4. Where the contempt imputed, occurred in a different 
 Court, or at another time, and was not in the face of the 
 Court which punished it, — the parties affected by the order 
 may appeal. Ibid 
 
 5. Upon the facts of the case stated here, there was no 
 contempt by the counsel made out Ibid 
 
 6. A court has power to require members of the Bar to 
 purge themselves from a charge of contempt incurred by their 
 publishing, over their names, in a newspaper, libellous mat- 
 ter, directly tending to impair the respect due to its members. 
 Moore, ex parte, 63 N". 0. R 397. 
 
 7. For such persons, under such circumstances, to state 
 that the Judges of the Supreme Court singly or en masse, 
 moved from that becoming propriety so indispensable to secure 
 the respect of the people, and throwing aside the ermine, rush- 
 ed into the mad contest of politics, under the excitement of 
 drums and flags, if admitted to be untrue, is libellous ; and, 
 especially when connected with an inference expressly and 
 immediately drawn in the same paper, that such judges will 
 yield to every temptation to serve their fellow partisans, and 
 are unfit to hold the balance of justice, directly tends to im- 
 pair the respect due to the members of such court. Ibid. 
 
 8. lu a rule to show cause why a person shall not be pun- 
 ished for contempt, the actual intention of the respondent is' 
 material, in which respect it differs from an indictment for the 
 like offence ; therefore, where the respondent meets the words 
 of the rule of disavowing upon oath any intention of commit- 
 ting a contempt of the Court, or of impairing the respect due 
 to its authority, the rule must be discharged. Ibid. 
 
 9. Where a party is excused, not acquitted, under a rule*, 
 &c, he will be required to pay the costs of such rule. Ibid. 
 
CONTEMPT. 93 
 
 10. Tlie proper method of bringing before the Supreme 
 Court for review, the order of a Superior Court in regard to 
 alleged misconduct by oue of its officers, (here, an attorney,) 
 is, by bringing up the record proper of such court, by a 
 certiorari in the nature of a writ of error. Ex parte Biggs, 
 G4 N. C R. 202. 
 
 11. A mandamus in such case, would be improper. Ibid. 
 
 12. The party charged in such case, has no right to 
 appeal. Ibid, 
 
 13. A court has power, on the ground of self protection, 
 outside of the common law and statutory doctrine of contempt 
 to disbar an attorney who has shown himself unfit to be one 
 of its officers; and such unfitness may be caused not only by 
 moral delinquency, but by acts (here, a publication,) calculated 
 and intended to injure the Court. Ibid 
 
 14. If an attorney who is also an editor of a newspaper, 
 and who in his latter character writes an article in disparage- 
 ment of the court, be put under a rule by such court, he may 
 by answer raise the point whether a prima facie case has 
 been made out against him and he be called on to make a 
 disavowal, — but where, (as here) he does not take that course, 
 but elects to disavow, the case does not present the question, 
 whether an editorial written by one who is an attorney as 
 well as an editor, falls under general principles governing 
 cases of miscouduct by attorneys of the court. Ibid. 
 
 15. Where, in such a case, the respondent submitted to 
 try himself and filed a disavowal in these words, " This 
 respondent respectfully answers : That as an attorney and 
 counsellor iu this court, he has ever been respectful, both in 
 his deportment and language, to his Honor Judge E. W. 
 Joues, and disavows having ever entertained any intention of 
 committing a contempt of the court, or any purpose to 
 destroy or impair its authority, or the respect due thereto :" 
 held, that although (in the expression italicised,) more gen- 
 eral than there was occasion for, the disavowal was sufficient 
 to excuse, if not to acquit ; even although in a subsequent 
 paragraph the respondent insisted, that the article was not 
 libellous, that by becoming an attorney he had not lost his 
 rights as an editor, that the article was written in the latter 
 character, and that it did not transcend the limits to criticism 
 upon public meu, allowed to the freedom of the press. Ibid. 
 
 . 16. A fine for contempt of Court is a punishment for a 
 wrong done the State, and is payable to the State. In the 
 matter of Rhodes, 65 N. C. R. 518. 
 
 17. It is a novelty unknown to the law, for a Judge ho or- 
 
94 CONTEMPT. 
 
 der the penalty inflicted upon a party for a contempt of Court 
 to be paid to the party aggrieved. The State alone is en- 
 titled to the penalty. Morris v. Wliitehead, 65 N. C. E. 637. 
 
 18. An answer to a rule on an attorney of the Court to 
 show cause why, under pain of contempt, he should not pay 
 into Court a sum of money received by him for a client, which 
 admits the receipt and non-payment, but, denies any applica- 
 tion of it to his own use ; which avers its loss, but, in con- 
 sequence of long continued drunkenness, respondent could 
 not tell how ; suggesting as a supposition, that respondent 
 had burnt it or put it away in some secret place to prevent 
 his destruction of it ; and avowing an inability to find it after 
 diligeut search : held, to be insufficient, and to authorize a 
 further rule on respondent to pay the money into Court, or 
 show cause why he should not be attached. Kane v. Hay- 
 wood, 6t> N. G." JR. 1 . 
 
 19. But a return to such second rule, which avows, that 
 after making every effort to comply with the rule, it is out of 
 respondent's power to do so ; that he is wholly insolvent, has 
 nothing wherewith to support himself and family, could ob- 
 tain no aid from his friends and relations, and has no credit; 
 and that in failing to perform the order, he intended no con- 
 tempt of the Court, and deeply regretted his inability to do 
 justice to his client : held, to be sufficient, and entitled the 
 respondent to be relieved from arrest and imprisonment, be- 
 cause the Court was satisfied that it was not in his power to 
 pay the money into Court. Ibid. 
 
 20. If a party is ordered to execute a deed and refuses to 
 do it, be will be kept in jail until he does do it, for that is a 
 tfhing which he can do. So, if an attorney, by false represen- 
 tations, procures his client for an inadequate consideration, 
 to assign the cause of action, he will be imprisoned until he 
 shall execute a release and re-assignment ; but, when a man 
 is ordered to pay money into Court, and swears that after 
 every eflort, it is out of his power to pay any part of it, (in 
 the absence of any suggestion to the contrary,) that is an end 
 of the proceeding ; for the Court will not require an impossi- 
 bility, or imprison a man perpetually for a debt, he having 
 purged himself of the contempt Ibid. 
 
 21. In such a case, on a rule against the attorney to show 
 cause whv his name should not be stricken from the roll, this 
 Court, prior to the Act of the General Assembly, ratified 
 April 4th, 1871, possessed the power to make such rule abso- 
 lute, and would have felt it their duty to have taken that 
 course. Ibid. 
 
CONTEMPT. 95 
 
 22. By the proper construction of that Act, this court is 
 shorn of its power to disrobe an attorney, except in the single 
 instance, where he has been indicted for some criminal offence, 
 showing him to be unfit to be trusted in the discharge of the 
 duties of his profession, and upon such indictment has either 
 been convicted or plead guilty. Ihid. 
 
 23. The act of 1871, fails to provide any power to be used 
 in the stead of the former power of the court, and so is a dis- 
 abling and not an enabling statute. Ibid 
 
 24. The words " convicted, or in open court confessed 
 himself guilty of some criminal oflence," used in this Act, 
 have acquired a technical ueaning, and must be construed to 
 convey the idea that the party has beeu convicted by a jury, 
 or has in open court, when charged upon an indictment, de- 
 clined to take issue by the plea of not guilty, and confessed 
 himself guilty. Ibid. 
 
 25. The admissions of an attorney, made in answer to a 
 rule to show cause why he should not be attached for con- 
 tempt in failing to pay money into court, which he wrongfully 
 withholds, is not such a " confession in open court," as is con- 
 templated by the act. 1 bid. 
 
 26. Sucli admission cannot be considered technically as a 
 confession, because it is not voluntary as when one is charged 
 on an indictment, and confess his guilt in open court, but the 
 respondent was compellable under heavy pains and penalties, 
 to answer under oath. 1 bid. 
 
 27. To allow his answer to be used as a confession to 
 establish guilt, would be objectionable as a means to compel 
 him to criminate himself on oath, and for such an inquistorial 
 proceeding there is no precedent in the courts of any coun- 
 try which enjoys the rights guaranteed by Magna Charta. 
 Ibid. 
 
 28. The wrongful retention of a client's money by an 
 attorney, was before the passage of the late Act, not a direct, 
 but a constructive contempt, made so by the common law, to 
 enable the court to purge the Bar of unworthy members 
 1 bid 
 
 29. Whether this court possess the power to punish under 
 the circumstances, by virtue of section 2, chapter 177, Acts 
 of 18G8-'G9, for misbehavior as an attorney in his official char- 
 acter under paragraph 8, sec. 1, discussed, but no definite 
 conclusion arrived at. Hid. 
 
 30. But, if it were clear that this court has full power to 
 punish, by fine and imprisonment, for a constructive conse- 
 quential coutempt, it might be questioned whether this 
 
96 
 
 CONTEMPT.— CONTRACTS. 
 
 court, which was not created for the punishment of criminal 
 offences, should, on mere motion, inflict such puuishment, 
 while the proceeding to disbar is suspended to wait further 
 preliminary steps, should any be taken, in the Superior 
 Court. Ibid. 
 
 31. Fine and imprisonment is not the appropriate remedy 
 to be applied to an attorney, who, by reason of moral delin- 
 quency or other cause, has shown himself to be an unworthy 
 member of the profession. Ibid. 
 
 32. If, iu the case of proceedings supplemental to execu- 
 tion, an order be made appointing a receiver aud directing a 
 certain person to deliver a bond alleged to belong to the exe- 
 cution debtor to the receiver, he is prima facie guilty of a 
 contempt of court if he hand the bond to an attorney for 
 collection instead of delivering it to the receiver, though he 
 may be discharged upon swearing that he only intended for 
 a certain purpose to get a judgment and not to collect the 
 money, and that thereby he had not intended any contempt 
 of the court, but his discharge should be granted on his 
 paying the costs. Bond v. Bond, 09 K C R. 97. 
 
 See (Bastardy 6.) 
 
 CONTRACTS. 
 
 I. Constiuction of contracts and 
 
 their enforcement. 
 II. Sale of personal chattels. 
 
 III. As affected by the statute of 
 
 frauds. 
 
 IV. Void and voidable contracts. 
 
 I. CONSTRUCTION OF CONTRACTS AND THEIR ENFORCEMENT. 
 
 1. A contract gave to the parties " the right to determine 
 what work is necessary to be done, for the purpose of enlarg- 
 ing, &o„ the said canal, &c. ; and he or they shall be fully 
 empowered to do the said work or have the same done, and 
 the said parties shall bear and pay the reasonable expense 
 aud the burden of the said work, iu the following proportions, 
 &c. : held, that the parties were bound thereby, not to do the 
 work or have it done, but to pay a ratable part of such 
 expenses as one or more of them may incur. Cobb v. Crom- 
 well, Phil. Eq. R. 18. 
 
 2. That, supposing the parties had undertaken to do the 
 work, the court could not enforce a specific performance, 
 because there is no mode of which the court can avail itself 
 for determining what work is necessary ; that question being, 
 
CONTRACTS— I. 79 
 
 by the contract, left to the decision of some one or more of 
 the parties. Ibid. 
 
 3. So long as a contract for the sale of land remains exe- 
 cutory on both sides, the vendor has the same right to enforce 
 a specific performance of it against the purchaser, as the 
 hitter has against him. Therefore, in such a case the vendor 
 may maintain a bill agaiust the vendee, to enforce the pay- 
 ment of the purchase money. Springs v. Sanders, Phil. Eq. 
 E. 67. 
 
 4. Where it is proved or admitted that one bought and 
 took title to land under a parol agreement with another to 
 hold it subject to the right of the latter to repay the pur- 
 chase money and have the land conveyed to him, such agree- 
 ment will be enforced. (John v. Chapman, Phil. Eq. B. 92. 
 
 5. Where the evidence satisfies a court that a person from 
 whom a specific performance is sought, entered into the con- 
 tract in question without understanding it, such performance 
 will not be enforced. Pendleton v. Dal ton, Phil. Eq. R. 119. 
 
 G. Where the owner of a one-third interest in land con- 
 veyed that interest to the owner of the other two-thirds, and 
 took a covenant from the bargainee that he would sell the 
 tract to the best advantage and pay the bargainor one-fourth 
 of the proceeds, but would not sell unless such one-fourth 
 would amount to $1,500, and in case no sale should be 
 effected in six months, would reconvey to the bargainor, or 
 pay him $1,300 ; and a sale was not effected till after the 
 lapse of six months: held, that the obligation to sell had 
 ceased, and the bargainor could only claim a reconveyance of 
 his former interest in the land, or $1,500, at the election of 
 bargainee. Han/rave v. Smith, Phil. Eq. It. 105. 
 
 7. Where a bill was filed by the purchasers for a specific 
 performance of a contract to sell laud, which suggested that 
 the bargainor could not make a good title, and prayed that 
 until such was made, the bargainor should be enjoined from 
 enforcing a judgment obtained by him for the purchase mo- 
 ney ; and thereupon the defendant by answer tendered a deed 
 which was filed therewith and was alleged to convey a good 
 title : held, that the course of the court was not either to dis- 
 solve the injunction or to continue it to the bearing, but to 
 continue it until a report should come in from the Master 
 upon a reference to him as to the sufficiency of the title so 
 tendered. Kilpatrich v. Harris, Phil. Eq. It. 222. 
 
 8. In suits for specific performance, in the absence of al- 
 legations of fraud or imposition, the court will not review de- 
 cisions made by the parties as to the comparative values of 
 
 7 
 
OS CONTRACTS— I. 
 
 the property in question and of the article in which it wa& 
 paid for. Turley v. lYowell, Phil. Eq. It. 301. 
 
 9. Contracts, the consideration of which is Confederate 
 money are not therefore illegal. Ibid. 
 
 10. When an agreement was entered into between the 
 owner of a farm and another person, by which the former wns 
 to furnish the farm to the latter for two years with the stock 
 of bogs and cattle upon it and mules, provisions and farming 
 implements ; and the latter was to give his personal attention 
 to the farming operations, have the entire control of the farm 
 and furnish the twenty-two laborers that were required ; and 
 thereupon the two were to share equally the produce of the 
 farm : held, that the agreement constituted an agricultural 
 partnership; that the share going to the owner of the farm 
 was rent; and that the relation between the parties was not 
 that of landlord and tenant; and therefore, held further that, 
 upon the death of the owner of the farm before the expira- 
 tion of the two years, his share which accrued thereafter did 
 not go to the devisees of the farm, but was included under a 
 bequest to another, of "the crop, stock and farming utensils, 
 and all other perishable property on said farm." Lewis v. 
 Wilkins, Phil. Eq. R. 303. 
 
 11. Where a note was endorsed and delivered upon a 
 parol agreement that it should be security for money then 
 borrowed of the endorsee by the endorser, a court of equity 
 will enforce such agreement and enjoin an execution (here a 
 ca. sa.) obtained at law by the endorsee. Smith v. Coble. 
 Phil. Eq. R. 332. 
 
 12. To such a suit iu equity the surety upon the ca. sa, 
 bond is not a necessary party. Ibid. 
 
 13. One who has accepted a parol promise for the con- 
 veyance of laud, cannot, upon being compelled at law to pay 
 the notes given for the purchase money waive his claim to 
 specify performance, and compel a repayment of such money 
 by the bargainors who submit to perform the contract. Foust 
 v. Shoffner, Phil Eq. R. 242. 
 
 14. A description of land as — A tract iu Iredell county, 
 containing 30 acres, adjoining the lands of William Shaver, 
 Caldwell and others, held to be sufficient in a contract to 
 convey. Shaver v. Shoemaker. Phil. Eq. R. 327. 
 
 15. A contract in these words : " We have sold to W. & 
 D. all the ginseng we have on hand and shall collect this sea- 
 sou or fall, amounting from five to eight thousand pounds, as 
 near as we can estimate, including all we can get," binds the 
 seller to deliver no particular quantity, but only so much as 
 
CONTRACTS— I. <J9 
 
 is on bund, ami may be gathered. Herren v. Gaines, 63 
 N. C. R. 72. 
 
 10. Where a debtor transfered by deed to his creditor 
 his interest in a certain receipt given by a Constable for 
 notes in the hands of the latter for collection, specifying the 
 receipt as then in suit, and then authorizing the crditor to 
 receive the proceeds ; and at the same time the creditor gave 
 to the debtor a receipt stating that the amount to be received 
 from the Constable should be credited on the note due by 
 the debtor to him, held that by such agreement, the exclu- 
 sive right to control the pending suit and to receive its pro- 
 ceeds, was vested in the creditor, and that the debtor was 
 entitled to a credit upou his note for any amount paid into 
 the Cleric's office or otherwise, under a judgment thereon ; 
 also, that so far from its being the duty of the debtor to 
 receive such amount and tender it to the creditor, he was 
 not authorized to receive it. Crawford v. Woody, 03 
 W. C. R. 100. 
 
 17. Time, which iu equity generally is not of the essence 
 of a contract, may become so at periods when the currency 
 is rapidly depreciating from day to day. Whitaker v. Bond, 
 63 N. C. R, 290. 
 
 18. Where a vendor of land filed a bill for specific per- 
 formance of the contract, alleging that the vendee had con- 
 tracted to pay specie, but had prevailed upon the sheriff (who 
 had iu his hands an execution for the money with instruc- 
 tions to accept only specie,) by menaces of au appeal to the- 
 Military to receive currency ; held, that the contract to pay 
 specie having merged in the judgment, the latter was satisfied 
 by the action of the sheriff, and therefore the vendee had 
 already complied with his contract. Gibson v. Foard, 63i 
 N. C.R. 103. 
 
 (As to the rights of the plaintiff, against the sheriff: Qutere^) 
 Ibid, 
 
 19 Where a part of the consideration for a contract to 
 sell land made in March, 1865, was a sum iu Coutederate 
 currency, which was not paid, and before the contract was 
 completed, tuat currency had become worthless: held, that 
 the purchaser was not entitled to a decree for specific per- 
 formance. Love v. Cobb, 63 N. C. R. 328. 
 
 20. Where one bargains for land of another who (as he 
 knows,) has only au equitable title: held, upon the latter 
 being unable to procure a title, by the refusal of his bargain- 
 or, that he is not bound to a specific performance of his con- 
 tract. Ibid 
 
100 CONTRACTS— I. 
 
 21. Specific performance will not be decreed, where, in 
 the nature of things, the only effect of the decree will be to 
 imprison the defendant perpetually. Ibid. 
 
 22. Equity will not enforce the specific performance of a 
 contract unless it be practicable, and unless the party seek- 
 ing relief shows that in reasonable time he performed his part 
 of the contract, or at the time of seeking relief is able and 
 ready to do so ; nor will it rescind a contract otherwise valid, 
 because subsequent events have so materially changed its 
 operation as to render it hard and oppressive upon one of the 
 parties. Addington v. Setzer, 03 N. C. R. 389. 
 
 23. Where, in 18G3, one agreed, for a sum in Confederate 
 money, to sell land to another, &c, and to relieve the land 
 from a dower estate ; and a deed for the land was then exe- 
 cuted and a partial payment made : held, that upon the form- 
 er party's delaying to tender a deed for the dower right until 
 1867, he could not compel the latter to specific performance 
 of his part of such contract; also, that he had no right to ask 
 for a rescission of the contract. Hid. 
 
 24. Semble, that a bill for the specific performance of a 
 contract to convey land cannot be sustained by a vendee, 
 where the memorandum in writing relied upon, identifies the 
 tract merely as "a certain tract of land where he [the bar- 
 gainee] now lives," and the bill avers that such tract was 
 sold, fraudulently, as containing 328 acres, but in truth con- 
 tained only 100 acres, and thereupon proceeds to ask an ac- 
 count of what has been paid by the plaintiff, and a convey- 
 ance of the 100 acres, with compensation; the principle of 
 cases nearest to this being, that a vendor may ask for specific 
 performance offering compensation for a failure in the title 
 to some small and immaterial part of the land. (Julver v. 
 Eggers, 63 N. C. R. 630. 
 
 25. Where the terms of a contract are certain, their con- 
 struction is for the Court, — not lor the jury. Swepson v. 
 Summey, 64 N. 0. R. 203. 
 
 26. Where a negotiation was pending for the settlement 
 of a debt of about $30,000, and a question arose as to what 
 would be the exact balance after applying certain payments, 
 &c, — such balance having been assumed by the parties to be 
 a certain amount, it was also agreed that if it were more 
 than that — a few hundred dollars either way should not mat- 
 ter: held, that, considering the amount of the whole debt, 
 $2,160.00, might be included in the expression a few hundred 
 dollars. Ibid. 
 
 27. A party who purchases and pays for a number of 
 
CONTRACTS— I. 101 
 
 barrels of flour, warranted as "extra and superfine," having, 
 upon their receipt, notified the vendor that a portion of them 
 were of an inferior quality: held, that as the vendor did not 
 come forward and remove them, and pay back the purchase 
 money, ihe purchaser had a right to sell them within a rea- 
 sonable time, and recover from the vendor any loss upon 
 resale, together with all proper expenses, such as would 
 reimburse him for his money expended, hut not for any loss 
 of a good bargain. Criffordv. Belts, 04 N. 0. R. 02. 
 
 28. Whatever be the form of a transaction, or the words 
 of the parties, there can be no contract (here, of sale,) without 
 an intention that there shall be one. Decries v. Haywood, 
 04 N. C. R. 83. 
 
 2!). Whether or not a contract was intended in any par- 
 ticular case, is a question for the jury, upon all the facts and 
 circumstances. Ibid. 
 
 30. One who contracts to deliver 100 bushels of wheat, 
 and after delivering 50 refuses to comply farther with his 
 contract, cannot recover for the amount delivered. Russell 
 v. Stewart, 04 N. O. R. 487. 
 
 31 In a case where the defendants agreed with the plain- 
 tiff, in consideration of $1200, to be paid in three annual 
 instalments ending with June 1, 1809, to convey to him 
 certain islands in a river ; and the plaintiff, after paying $200, 
 notified the defendants that in consequence of their inability 
 to make title he abandoned the contract and demanded the 
 $200 ; and thereupon brought assumpsit against thein, declar- 
 ing, I, for money had and received, and 2, on a special con- 
 tract to convey land; it being admitted that up to the time 
 of bringing the suit the defendants had no title to five of the 
 islands, and only one-ninth undivided interest in several 
 others: held, that as the plaintiff had not complied with his 
 part of the agreement, he could not maintain the second 
 •count. The defendants were to be allowed to complete their 
 title at any time before Jan. 1, 1800, or, (if compellable to 
 do so earlier) at all events, before the tender of all the pur- 
 chase money by the plaintiff. Evidence offered by the defen- 
 dants, that the plaintiff at the time of making the agreement 
 knew of the want of title by them, was competent. In such 
 a case, in order to enable a plaintiff in a Court of law to 
 abandon the contract, and recover back his payments there- 
 upon, the failure of title must be complete ; the doctrine of 
 compliance merely insignificant or immaterial being one con- 
 fined to courts of equity, which, as this case was pending at 
 the adoption of the Constitution of 1808, cannot be enforced 
 here. Shaw v. Vincent, 04 N. C. R. 000. 
 
102 CONTRACTS— I. 
 
 32. Where A is indebted to B by note, and the former 
 gives to the latter a mortgage to secure the payment of the 
 note, there is an implied promise on the part of B that he 
 will suspend suit brought upon the note. Ilarshaw v. Mc- 
 Kesson, 05 N. C. E. 088. 
 
 33. Where there is no proof of positive fraud or imposi- 
 tion, the contract of an heir expectant to convey what may 
 descend to him by the death of the ancestor, is obligatory 
 upon him, and such contract will be enforced by the Courts. 
 Hasten v. Marlow, 05 N. C. K. 095. 
 
 34. Where the consideration is fair and adequate and no 
 undue advantage has been taken, the decree is lor specific 
 performance ; where advantage has been taken of the neces- 
 sity of the heir expectant, the contract is held as a security 
 for the return of the mouey actually advanced, together with 
 interest. I hid. 
 
 35. Where A, an heir expectant of B, executed a deed 
 to C, for "his entire interest in all the personal estate of B, 
 and also his entire interest in all the real estate of B, that he 
 the said A may be entitled to as one of the children and 
 heirs at law of B," it does not convey such an interest as 
 could be enforced in a Court of Law under the old procedure, 
 but resort must have been made to a Co.irt of Equity. Ibid. 
 
 30. A person hired tor one year, who is wrongfully dis- 
 missed before the expiration of the year, is not required to 
 wait till the end of the year, but can sue at once, and is enti- 
 tled to recover such damages as he has sustained by such 
 wrongful dismissal. He may treat the contract as rescinded, 
 and recover upon a quanlam meruit. Briiikley v. Sicicegood, 
 05 K C. R. 020. 
 
 37. When the terms of the contract are in writing, or 
 otherwise ascertained, the construction of the contract is for 
 the court and not for the jury. Hence, where it appeared 
 that a person having pork to sell in the year 1803, wrote to 
 the buyer as follows : " Owing to the great fluctation in Con- 
 federate currency, I prefer not to sell for that money. .There- 
 fore let me know what you will pay inN. O. lank notes, or 
 check on tho Cape Eear Bank, at Greensboro," and the 
 buyer took the pork, and sent a check in the following words: 
 
 " Yanobyvillb, K C, 3d Dec, 1803. 
 $3088 Cashier of the Bank of Cape Fear, Greensboro, IN". 
 C, pay to the order of Thomas D. Johnson, thirty-six hun- 
 dred and eighty eight dollars. 
 
 (Signed,) JOSEPH J. LAWSON, Cash'r., 
 and endorsed " pay Thomas Sellars, or order, 
 
 (Signed,) THOMAS D. JOHNSON." 
 
CONTRACTS— I. 103 
 
 It was held, that the contract did not require the buyer to 
 send a check payable in N. C bank notes, aud the check he 
 sent was a compliance with the terms of it. Sellars, et al. v. 
 Johnson, 05 N. C. R. 104. 
 
 88. If a seller receive a check drawn on a bank, which is 
 endorsed to him, and which he might have refused as not 
 being in accordance with his contract, but kept it, presented 
 it to the bank for payment, and sued upon it, instead of repu- 
 diating it and returning it to the buyer, it amounts to an 
 acceptance of the check in satisfaction of the article sold, and 
 the liability of the buyer is then only upon his endorsement. 
 Ibid. 
 
 o9. The true meaning of a contract in the following- 
 words: "Twelve months from date, with interest from date, 
 I promise to pay William Richards $0,602 in the event the 
 Rhodes Gold mine continues to prove at the expiration of 
 said time a good mine," is that the mine, which may be 
 proved to have been before opened and worked, continued to 
 be as good a mine at the end of the year as it was at the be- 
 ginning, and not that it was a good mine in the estimation of 
 miuers' without reference to its quality at the time the con- 
 tract was made. Richards v. Svhleyelmu-h, 05 N. C. R. 150. 
 
 40. The enactment in the Revised Code, ch. 31, sec. 84, 
 that "in all cases of joint obligations or assumptions or co- 
 partners in trade or others, suits may be brought and prose- 
 cuted on the same against all or any number of the persons 
 making such obligations, assumptions or agreements," is re- 
 pealed in effect as to suits upon parol contracts made after 
 the adoption of the C. C. P., by the 02d section of that Code, 
 but such contracts made before that time are exempted from 
 its operation by section 8, sub. div. '2 of the same. Merwiu 
 v. Ballard, 05 N. C. R. 108. 
 
 41. Where it appealed that the plaintiff on the 1st of 
 January, 1805, hired his elaves to the defendant upon the 
 express understanding that he was to take Confederate mo- 
 ney in advance, or whenever he should apply tor it, and the 
 defendant was always ready to pay the Confederate money, 
 but the plaintiff never applied for it, it was held that he was 
 not entitled to recover the value of the hire of the slaves. 
 Erwin v. IF. 2V. C. K E., (55 N. C. R. 79. 
 
 42. Where several owners of land lying on a swamp, some 
 above and some below a- mill situated on it belonging to A, 
 bought and paid for it, and took a deed to themselves in fee 
 with the site and all rights appurtenant thereto, to be held in 
 trust lor the benefit of the lands of which they were the own- 
 
104 CONTRACTS— I. 
 
 ers, and to prevent any mill dam or other obstruction from 
 being placed across said swamp, to the damage and injury of 
 their said lands, it was held, that the said purchasers had a 
 right to prevent the erection of a mill dam across the swamp 
 one hundred and fifty yards below the site of the old mill, by 
 A or by one who purchased his land, and who proposed to 
 build the dam partly on the land purchased of A, and partly 
 on the land which he owned belore. Barnes v. Barnes, 05 
 N. C. E. 201. 
 
 43. As a general rule every contract ought to be enforced 
 specifically, but an exception to this rule is permitted when 
 damages can be recovered at law, which are an adequate sat- 
 isfaction, and the exception is confined to cases in which there 
 is a certain measure of damages, and money must be a satis- 
 factory compensation. Ibid. 
 
 44. Where A contracted during the year 1803 or 1804, to 
 convey a tract of land to B for life, remainder to her children 
 in fee, in consideration of a number of negroes then sold and 
 delivered by B to A, in which the latter was a tenant for life, 
 and her children entitled to the reversion, all of whom joined 
 in said conveyance except Eli, who was an infant, and one of 
 the terms embraced in the contract to convey said land being 
 that A would convey the said lands to B and her children 
 whenever the infant Eli arrived at age, and would make " a 
 good title " to his share of said slaves unto A, and the slaves 
 were held by A till their emancipation : held, that upon the 
 coming of age of Eli, and his tendering a bond conveying his 
 interest in said slaves to A, that this was a substantial com- 
 pliance with the contract, and that A was bound to convey 
 the land, according to the terms of this contract. Calloway 
 v. Hamby, 05 N. C. R. 031. 
 
 45. Where a Confederate States' bond was transferred in 
 payment of a debt, and the assignor promised that if it was 
 not right he would make it so or pay $10,000, if, in point of 
 fact, the transfer was not valid, the promise was absolute, and 
 the party was bound to pay. Bryan v. Heck, 07 N. 0. li. 
 322. 
 
 40. When each of the parties to such a contract have 
 equal knowledge of the validity of the transfer, according to 
 the rules of the treasury department, and equal means of 
 acquiring correct information in reference in the same, it was 
 incumbent upon the party promising to pay to take such steps 
 as were necessary to make the transfer valid if it were not 
 so. A failure to do so leaves it to be inferred that he was. 
 content to be discharged with the amount in money. Ibid. 
 
CONTRACTS— I. 105 
 
 47. A contracted to manufacture 50,000 lbs. of leaf 
 tobacco for B, between the 1st day of May, and the 15th day 
 of October, I860, for which B was to pay 10 cents per lb. 
 and to pay the taxes and for the ingredients used in its man- 
 ufacture, such payment to be made whenever B was notified 
 that 100 boxes were ready for market: held, that the defen- 
 dants were bound to have all the tobacco manufactured on 
 or before the day agreed upon, and that the promise of B to 
 pay L0 ceuts per lb. and to pay taxes, &c , was not a condi- 
 tion precedent, or an act on which A's undertaking was 
 made to depeud. Henderson v. Bessent, G8 K 0. R. 223. 
 
 48. Where it appeared that the plaintiff sold a horse to 
 the defendant for $125 payable iu Confederate notes, or $100 
 in bank notes at a given time, at defendant's option, and 
 defendant offered to pay in Confederate notes and plaintiff 
 refused to receive them, and both parties differed as to the 
 contract, and agreed that the plaintiff should call at the 
 defendant's house and get $125 State scrip in payment of 
 debt, and plaintiff did not and never has called, and defen- 
 dant has always been ready: held, that the parties had rescin- 
 ded the first contract, and by the latter contract the plaintiff 
 was to call for the same it was a condition precedent to the 
 payment of it, and as he had not or lied he could not recover. 
 Simmons v. Cahoon, 08 N. C. R. 303. 
 
 40. A contract to convey "a certain piece of land in the 
 county aforesaid adjoining the lands of" A and B "and oth- 
 ers, being a part of the Alexander tract, supposed to contain 
 30 or 35 acres," is so vague and indefinite that a Court can- 
 not enforce it specifically. Grier v. Bhyne, 00 N. C. R. 346. 
 
 50. A sells a tiact of land to B, retaining the title until 
 the purchase money is paid. B makes a payment on the debt 
 
 A, and then sells his interest to C ; A aud B agree to obtain 
 from the proper Court a decree of sale, which is made, the 
 land sold ami is purchased by C, (the title still being retained 
 until the purchase, money is paid) who gives his bonds to A 
 and B for their respective shares. C being unable to pay his 
 bonds, A brings this action against the other parties, asking 
 for a sale of the land, and the proper distribution of the pur- 
 chase money; the land is sold and A becomes the purchaser, 
 B claiming a pro rata share of the proceeds of sale: held, that 
 
 B, until he paid the debt to A for the first purchase, was en- 
 titled to no part of the proceeds of sale; and further, that if 
 tin; land sold for more than B owed A, B was entitled to the 
 surplus and the surrender of his note; if it sold tor less, B's 
 note must be credited with the amount it did sell for. Elliott 
 v. liobards, TON. C. R. 181. 
 
106 CONTRACTS— I.— II. 
 
 51. Any third person, who without lawful justification, 
 induces a party who, for a consideration, has contracted to 
 render personal service to another, to quit such service and re- 
 fuse to perform his part of the agreement, is liable to the party 
 injured in damages. Hash ins v. Boyster, 70 N. C. II. 602. 
 
 52. That the consideration of a contract is too small, or 
 its terms unreasonable, will not justify a Court, for the bene- 
 fit of a third person not a party thereto, in setting such con- 
 tract aside; nor is the fact that one of the contracting par- 
 ties is appointed to decide as to the performance or non per- 
 formance of certain conditions, a sufficient cause for annulling 
 and setting aside the same. Hid. 
 
 See (Bills of Exchange and Promissory Notes, 18-19 ) 
 (Practice — In Equity, 13.) (Vendor and Purchaser, 2-3-4- 
 0-8-10-12-13-14-15-10-17.) 
 
 II. SALE OF PERSONAL CHATTELS. 
 
 1. That the thing sold was wholly valueless, is no reply 
 to an action upon a specific contract for the price of such 
 thing, in ease it were accepted, retained and used by the 
 vendee. Sapona Co. v. Holt, 04 N". C. E. 335. 
 
 2. If one send by mail an absolute and specific order for 
 certain goods to a merchant who sells such goods, the latter 
 need not reply by mail engaging to send them; the contract 
 will be complete upon his at once complying with the order. 
 Crook v. Cowan, 04 N. C. II. 743. 
 
 3. This is so even where the thing ordered must be manu- 
 factured by the merchant before it is sent, at least where it 
 can be manufactured without much delay, ex. (jr., in case of 
 the making up of carpets, where the merchant is a carpet 
 seller. Ibid. 
 
 4. Where the defendant, who resided near Wilmington, 
 sent, Dec. 10, 1866, by mail, an order to a carpet merchant 
 of P>altimore for two carpets similar to those which the mer- 
 chant had furnished to a friend of his, (" good three ply car- 
 pet, medium color," &c, &c, giving size and proportion of 
 rooms: "I want good durable carpets, and wish you to have 
 them made up ; you can forward them to my address at 
 Wilmington, N. C., per Express, C. O. D.," &c, &c.,) and 
 the order was received Dec. 14th, and the carpets forwarded 
 by Express, Dec. 21st, and duly received in Wilmington at 
 the Express office : held, that the contract was complete, 
 there being no need that the merchant should have answered 
 by mail, engaging to comply w'th the order. Ibid. 
 
CONTRACTS— II. 107 
 
 5. In an action to recover the price of certain guano sold 
 to the defendants for use by themselves; it having been 
 shown that the article was worthless: held, that the fact that 
 one of the defendants, after the article had been made use of, 
 in a conversation with the plaintiff, promised that, if the lat- 
 ter would release him, he would pay one-third of the price, 
 in order to avoid a law suit, was no evidence of a new con- 
 tract, and, semble, also, none of the original contract; but 
 was merely an unaccepted offer to compromise ; and that if 
 the article were worthless, the. plaintiff could not recover: a 
 re-delivery of it by the defendants having been rendered 
 impossible because it had been destroyed by the means 
 resorted to in order to ascertain its value; or unnecessary, 
 because being wholly without mercantile value, it need not 
 have been returned. Smith v. Love, 04 N. 0. K. 439 
 
 0. Where a contract for the purchase of tobacco required 
 certain acts to be done in regard to it (such as payment of 
 the United States tax, a permit, &c.,) before it was accepted, 
 and afterwards the defendant accepted it, knowing that such 
 acts had uot been done: field, that he could not resist pay- 
 ment of the price agreed upon-, by alleging that conditions 
 had not been performed. JJodson v. Gilmer, U4 N. 0. 11. 512. 
 
 7. Nor, if the doing of such acts was suspended with the 
 consent of the United States officers, and was bona fide, and 
 not intended to defraud the government of its revenue, al- 
 though the transaction may have been irregular, — could the 
 defendant shelter himself from liability, by showing such omis- 
 sion to have been in violation of law. Ibid. 
 
 8. Whether one possesses information superior to that of 
 auother, in regard to the subject matter of a contract, is a 
 question of fact, and not of law. Smith v. Webb, 64 N. C. 
 K. 541. 
 
 9. Where the defendants contracted to sell to the plain- 
 tiff all the fishing materials belonging to them as a firm, and 
 removed a part thereof, the plaintiff is entitled to recover the 
 value of the part thus removed, whether the removal took 
 place before or after the sale. Wilson v. Holleij, GO N. C. 
 li. 407. 
 
 10. Upon the trial of an issue involving the value of a 
 jackass, ii is competent to prove Ins reputation. McMillan 
 v.Davis. 66 N. R.539. 
 
 11. When a bargain is made for the purchase of goods, 
 and nothing is said about payment or delivery, the property 
 passes immediately, so as to cast on the purchaser all future 
 risk, if nothing remains to be done to the goods, although 
 
108 CONTRACTS— II.— III. 
 
 such purchaser cannot take them away without paying the 
 price. Therefore, a levy of an execution on a horse which 
 had been sold but not delivered, as the property of the pur- 
 chaser of such horse, was valid. Jenkins v. Jarrett, 70 N. 
 C. K. 255. 
 
 12. Where a person purchased a worthless article of a 
 fertalizer, and gave his note for the purchase money, and af- 
 terwards paid the same, with full knowledge of the facts: it 
 was held, that he could not recover the money paid, although 
 paid under threats of a law suit. Matthews v. Smith, 67 N. 
 C. R. 374 
 
 13. In an action to reaover the stipulated price of certain 
 castings, the defendant can show that the castings were not- 
 such as he contracted for, and were not suited to the purposes 
 for which they were designed; and the jury, in their verdict, 
 can allow the defendant the difference of value between the 
 castings delivered and those contracted for. Howie v. Ilea, 
 70 N. C R. 559. 
 
 14. In such case the defendant, by receiving the castings, 
 so that he cannot return them, does not abandon his right 
 either to sue for a breach of contract, or to insist, in his de- 
 fence, on a reduction of the price agreed to be paid. Ibid. 
 
 15. A promise to pay certain debts by the purchase of 
 goods, which the owner of tbe goods at the time owed, is a 
 sufficient consideration to support the sale, if the contract 
 was bona fide made, notwithstanding tbe purchaser, when the 
 contract was entered into was an infant and without means. 
 Hislop v. Hoover, 08 N. 0. R. 141. 
 
 See (Contracts — Construction of contracts and their 
 enforcements, 27, 23, 29, 30.) (Sale — Sale of Slaves.) 
 
 III. AS AFFECTED BY THE STATUTE OF FRAUD. 
 
 1. The Auctioneer is the agent of both the seller and 
 purchaser: therefore, upon a tract of land being bid off at 
 auction by one who is present, the auctioneer is his agent for 
 the purpose of directing his name to be signed to an agree- 
 ment to purchase Cherry v. Long, Phil. L. R. 400. 
 
 2 A memorandum by the clerk of the auctioneer *' Ray- 
 ner Tract to James S. Long at $40 per acre," by order 
 of the auctioneer, in a case where it was shown that the 
 expression " Rayner Tract" was a well-known designation, 
 held, under the circumstances, to be sufficient, witbin the 
 statute of frauds. Ibid. 
 
 3. A memorandum of a contract to convev the laud of a 
 
CONTEACTS— III —IV. 109 
 
 principal signed by an agent in his own name is a compliance 
 with the satute of frauds, if it be expresed that the contract 
 was made for the principal. Phillips v. Hooker, Phil. Eq. E. 
 193. 
 
 4. A memorandum setting forth that the agent agreed 
 for "Mrs. H. to make a deed for her house and lot North of 
 Kinston," to the plaintiff, is not void as being too vague and 
 indefinite — it being admitted by Mrs. H. (the defendant,) in 
 her answer, that she owned but one house and lot in the 
 county, and that the agent had been authorized to sell her 
 house and lot; and she is bound to convey in J ee simple. 
 Ibid. 
 
 5. A promise by a third person to answer for the debt 
 of another which other is not thereupon discharged from all 
 liability — is within the Statute of Frauds, and must be in 
 writing. Combs v. Harshaw, 63 N. 0. E. 198. 
 
 6. That there is a consideration for such promise, does 
 not afiect this rule. Ibid. 
 
 7. Wh^re there is a valid contract for the sale of the land 
 betwixt A and B, as principals, held, that C cannot be sub- 
 stituted to the rights or duties of either party without au 
 agreement in ivriting. Love v. Cobb, 63. N. 0. E. 324. 
 
 8 A parol agreement by an administrator, that if a cer- 
 tain creditor will pay costs, &c, the former will allow his 
 claim as a set-off against a debt due to the administrator, 
 upon a purchase of the assets after the death of the deceased, 
 is void under the Statute of Frauds. Bansom v. McCiees, 
 64 N. 0. E. 17. 
 
 9. Where the parties to a covenant for the conveyance of 
 land in consideration of work and labor to be done by the 
 covenantee, agreed by parol, that the title should also be 
 held as an indemnity against loss to the covenantor in con- 
 seopience of his surety-ship for the covenantee : held, that 
 the agreement was void, under the Statute of Frauds. Har- 
 per v. Spainhonr, 64 N. 0. E. 629. 
 
 See (Indians 2, 3) 
 
 IV. VOID AND VOIDABLE CONTRACTS. 
 
 1. Where the plaintiff sold mules to an agent of the Con- 
 federate government at a reduced price, giving as his reason 
 for thus selling them, that they were to be used in the mili- 
 tary employment of such government : held, that the contract 
 was against public policy, and, therefore, that no recovery 
 could be had on a bond given for the payment of the purchase 
 money. Mart'ui v. McMillan, 63 N. C. E. 486. 
 
110 CONTRACTS— IV.— CORONER. 
 
 2. Contracts existing between citizens and residents of 
 the northern States and citizens of this State, prior to the 
 commencement of the late war, were suspended during the 
 existence of hostilities. Blackwett v. WUlard, Go N. C. It- 
 555. 
 
 3. Where a citizen and resident of New York had a suit 
 pending in this State previous to the late war, and during the 
 war, his debtor here pays up his indebtedness to the attorney 
 or agent of such non-resident: held, that such action was 
 void, and that the relation of attorney and client was termi- 
 nated by the war. Ibid. 
 
 4. Any securities held by a citizen and resident of New 
 York previous to the late war, upon persons resident in this 
 State, could not be extinguished durante hello, either through 
 the agency of the courts here, or through the former agents 
 and attorneys of such non-resident. 1 bid. 
 
 5. Therefore, where a debtor to a citizen or resident of 
 New York paid off said claim to a Clerk and Master here in 
 Confederate currency before such currency had depreciated 
 to any extent, such payment is a nullity. Ibid. 
 
 0. Courts of justice not only redress fraud, but seek to 
 prevent fraud by removing temptation. Therefore Presidents 
 and Directors of Railroad Companies are not allowed to buy 
 up and speculate upon claims against such companies — such 
 contracts being in every respect against good morals, and 
 consequently against public policy. McDonald v. Hauyhton, 
 10 N. C. R. 393. 
 
 See (Accord and Satisfaction.) (Bills of Exchange and 
 Promissory Notes 10, 11, 13. 14, 15, 16, 20.) (Confederate 
 Monev 2/3, 4, 7, 15.) (Public Law 10, 11, 12, 13, 1G, 17 r 
 2G, 27, 31, 32, 34, 35.) (Vendor and Purchaser 2, 3, 4, G, 
 8, 10, 12, 13, 14, 15, 16, 17) 
 
 CORONER. 
 
 Under the Constitution, art. 4, sec. 30, where there is no 
 coroner in the county, the Clerk of the Superior Court may 
 appoint one to execute process against the sheriff, where 
 he is interested in, or a party to the suit; or in such case, 
 under the C C. P., sec. 73, may issue to the sheritf ofau 
 adjoining county. Witkousluj & Rintels v. Wasson, 09 N. C 
 R. 38. 
 
CORPORATION. lit 
 
 CORPORATION. 
 
 1. The return of a sheriff upon process served on an offi- 
 cer of a corporation, need not designate the office filled by 
 such person. In any event such return is eured by judgment. 
 Crawford v. Bank of Wilmington, Phil L R. 136. 
 
 2. The failure of a inutnal insurance company does not 
 constitute a "failure of consideration," so as to defeat an action 
 upon a premium note given by a person insured therein 
 Coniqlan I v. A. C. Mutual Life Insurance Company, Phil. 
 Eq. R. 341. 
 
 3 Such a company after its insolvency loses the power of 
 insisting upon forfeitures of stock by its members for non- 
 payment or otherwise. Ibid. 
 
 4. If such a compauy before insolvency treat a member 
 who has failed to pay as if he were still a member, this is a 
 waiver of the right to declare his stock forfeited for the non- 
 payment. Ibid. 
 
 5. A resolution by such a company to wind up its affairs 
 is equivalent to an assessment of 100 per cent on the pre- 
 mium notes in order to enable it to meet its liabilities, &e. 
 Ibid. 
 
 (). The holders of policies in insolvent mutual insurance 
 companies cannot, when sued upon their premium notes, 
 claim that the values of their policies (supposing that the 
 same can be ascertained?) shall be set off in equity agaiust 
 their liabilities. Ibid. 
 
 7. The act of 1858-'59, eh. 142, does not purport to extin- 
 guish the Cape Fear and Deep River Navigation Company; 
 and does not in fact extinguish it. C. F. de I). R Co , v. 
 Costen, <>3 N. C R. 264. 
 
 8 The statute of Limitations upon a cause of actiou 
 against a stockholder in that company, for the balance of his 
 subscription after a sale of his stock, begins to inn from the 
 time of such sale, and not from the time of the last assess- 
 ment upon the stock. Ibid. 
 
112 COSTS— I. 
 
 COSTS. 
 
 By whom to be paid. 
 
 I Security for costs and suits in forma 
 pauperis. 
 
 I. BY WHOM TO BE PAID. 
 
 1. Costs awarded upon retaxation are virtually included 
 in the original judgment in a cause. Walton v. Sugg, Phil. 
 L. E. 98. 
 
 2. Notice of retaxation, if necessrry at all, may be served 
 upon au attorney in the suit to which the costs are claimed 
 to be incident. 1 bid. 
 
 3. Where several defendants were included in the same 
 indictment, which had been found during the late war and 
 continued until after the courts were reopened; upon a 
 motion to retax costs : held, that the State was entitled to 
 but one tax. That the clerk at each continuance was enti- 
 tled to but one fee for continuance. That as but one capias, 
 including the names of all the defendants, had been issued, 
 the clerk was entitled to but one fee for capias- That the 
 clerk was entitled to but one fee for the indictment. That 
 he was entitled to a separate fee for judgment against each 
 defendant. That he was not entitled to fees for subpo?na$ 
 issued from term to term ; but to ouly one fee for those orig- 
 inally issued, and to another for those issued at the reopen- 
 ing of the courts. State v. Gwgnn, Phil. L. E. 445. 
 
 4. Where a bill had been tiled to rescind a deed of release 
 and quit-claim for a slave, on au allegation of fraud : upon 
 the emancipation of the slave by act of law, the court de- 
 clined to hear the cause and ordered the bill to be dismissed 
 without prejudice and that each party should pay his own 
 eosts, as if the suit had abated. Kidd v. Morrison, Phil. 
 Eq. K.,31. 
 
 5. Au administrator will not ordinarily be allowed costs 
 in a cause constituted by him for the purpose of having the 
 instructions of the court upon questions which with reason- 
 able certainty may be solved by counsel ; nor where they 
 are incurred by making unnecessary parties. Colson v. 
 Martin, Phil. Eq. E. 125. 
 
 6. Partial allowance of costs in such a cause under pecu- 
 liar circumstances. Ibid. 
 
 7. No one is to be regarded as a in-osecutor, under the 
 Statute rendering prosecutors liable to pay costs, unless his 
 name is marked as such on the bill of indictment. State v 
 Lupton, 63 N. C. E. 483. 
 
COSTS— I. 113 
 
 8. The prosecutor upon an indictment for stealing a mule, 
 found at Pall Term, 1867, and tried at Spring Term, 1809, 
 may upon proper certificate by the Judge below," be ordered 
 by him to pay the costs of the case! /State v. Darr, 03 N. 
 C. K, 516. 
 
 9. Heretofore, the Superior Courts have had no power to 
 
 give judgment for such of the costs upon a State warrant as 
 
 accrued before the magistrate who tried it and failed to give 
 
 judgment for such costs. Now, the matter is regulated by 
 
 Act of 10th April, 1800, " Proceedings iu criminal cases," 
 giving them control thereof* State v. Locust, 03 N. C R 574. 
 
 10. When one of the parties to a cause is not ready for 
 trial, and upon his application, it is ordered to be continued 
 for him "on payment of costs," it means the costs of the 
 term, and not the whole costs of the action. Kirkham v. 
 Dixon, 05 N". C. K. 171). 
 
 1 1 . Where a party has a witness summoned in his behalf, 
 and the said witness is in attendance upon the Court, but is 
 neither sworn, tendered or examined: held, that according to 
 the practice in this State, the attendance ot said witness 
 should be taxed against the party by whom he was summon- 
 ed. Loftm v. Baxter, 00 N. C K. 340. 
 
 12. Where a material witness had been summoned and is 
 not present at the trial, but had theretofore been iu attend- 
 ance, and the question is made in apt time, the party sum- 
 moning the witness, has the right to tax the attendance of 
 such witness against his adversary only, in case of satisfactory 
 proof of the materiality of the witness, and that his absence 
 was on account of sickness or other sufficient cause. Ibid. 
 
 13. When an execution for costs, incurred in this Court, 
 has been returned unsatisfied, and the party is insolvent and 
 entitled to moneys, in the Clerk's office of this Court, order- 
 ed, that the office costs be deducted from moneys so due him. 
 Clerk's Office v. Bank of Cape Fear, 00 N. C. E. 214. 
 
 14. Although such execution debtor is adjudicated a bank- 
 rupt, it will not affect this conclusion, as the assignee quoad 
 hoc, takes subject to all the equities of the bankrupt. Ibid. 
 
 15. Where the plea of "fully administered" is found for 
 the defendant and a judgment qnando rendered for the plain- 
 tiff, the defendant is entitled to judgment against the plaintiff 
 for his costs. Lewis, Executor, v. Johnson, 07 JST. C E. 38. 
 
 10. Where there is a petition for writs of recordari and 
 supersedeas, ami the prayer is refused by a Judge at Cham- 
 bers, and appeal to this court, and procedendo ordered to the 
 •end the prayer of petitioner be granted, and the proceeding 
 8 " 
 
114 COSTS— I.— II. 
 
 was ex parte, and defendant had no notice : Held to he error T 
 
 to enter up judgment against the defendant for costs of 
 Supreme Court. Should the petitioner liually succeed in 
 defeating the recovery of the plaintiff in the original actions,, 
 then he will be entitled to have his costs in this court taxed 
 against said plaintiff. Caldwell v. Beatty, 68 K C. R, 399. 
 
 17. A defendant who is an administrator, is entitled to 
 costs in an action wherein the plea of " fully administered " 
 has been found for him, and adjudgment qnando rendered. 
 See 67 K U. Rep 38. Lewis v. Johnston, 67 N. C. R. 392. 
 
 18. The Supreme Court has no power to compel by pro- 
 cess of attachment, a defendant to pay a judgment against 
 him for costs recovered by a plaintiff in this court. Phillips 
 v. Trezevant, 70 JN". C. R. 176. 
 
 19. Tickets giveu out by Clerks of Superior Courts in 
 State cases, are only evidence that the witnesses attended ;. 
 and until the Judge by whom the case was disposed of shall 
 pass upon the costs, including witness fees, and declare how,, 
 when and by whom such costs shall be paid, the County 
 Commissioners cannot know their liability, and are not 
 responsible therefor. Moore v. Commissioners of Alamance* 
 70 N. C. R. 340. 
 
 See (Arbitration and Award— Where an award is to be 
 sustained or set aside 2.) (Contempt 9.) 
 
 II. 8ECUKITY FOE COSTS AND SUITS— IN FORMA PAUPERIS. 
 
 1. Under the act of 1868-'9, sec. 1, ch. 96, according to 
 its proper construction, a Judge or Clerk of the Superior 
 Court may, in cases within the jurisdiction of said Court, 
 make an order authorizing any person complying with the 
 provisions of said act to sue in forma pauperis. A Justice 
 of the Peace has like power, in cases within the jurisdiction 
 of his court. Rowark v. Gaston, 67 N. C. JR. 201. 
 
 2. An undertaking on appeal, given under sees. 303 and 
 414 of C. O P., though not so expressed, is, by implication, 
 taken to be made with the appellee. Clerk's office v. Huff- 
 steller,(i7 N. C. R 449. 
 
 3. Such undertaking secures the costs of the appellee, 
 but not those of the appellant, Therefore, when there was 
 judgment in the Supreme Court in favor of the appellant, his 
 sureties are not liable on their undertaking for his costs* 
 when such costs cannot be made out of the appellee, or their 
 principal. Hid. 
 
 4. Prosecution bonds, and undertakings on appeal, being 
 
COSTS— II.— COUNTER CLAIM.— COUNTIES,&c. 115 
 
 sent up as part of the record, summary judgment may be 
 taken upon them, as before the adoption of 0. 0. P. Ibid. 
 
 5. Residents of other States in the Union can sue in the 
 Courts of this State, in forma pauperis. Code of Civil Pro- 
 cedure, sec. 72. Porter v. Jones, 68 N. C R. 320. 
 
 0. The Clerk of the Superior Court, as well as the Judge, 
 may make an order for a plaintiff, whether an adult or an 
 infant, suing by his guardian, to sue in forma pauperis in the 
 Superior Court upon complying with the provisions of the Act 
 of 1808-'09, eh. 80, sec. 1. * Brendle v. Heron ct al , 08 X. C. 
 R. 496, 
 
 See (Appeal — Prom Superior to Supreme Courts, and 
 note thereto, 52.) (Practice — Non suit and Nolle prosequi, 
 3) 
 
 COUNTER CLAIM. 
 See (Pleading — Counter claim ) (Set-off— At Law, 6-7-8.) 
 
 COUNTIES AND COUNTY COMMIS- 
 SIONERS. 
 
 1. Claims against Counties must be presented for pay- 
 ment and refused, before an action can be maintained because 
 of their non-payment. Love v. Commissioners of Chatham 
 County, 04 N. C. R. 700. 
 
 2. Where the complaint contained no averment of such: 
 demand and refusal, judgment was arrested. Ibid. 
 
 3. "All acts and proceedings by or against a county, in its 
 corporate capacity, should be in the name of the Board of 
 Commissioners" Acts of 1808, ch. 20. Askew v. Pollock, 
 60 N. C. R. 49. 
 
 4. An order to show cause, which is in the nature of an 
 alternative writ of mandamus, ought not to be directed to the 
 individuals composing the Board of Commissioners. It is 
 ouly in the case ot disobedience that they can be proceeded 
 against individually. Ibid. 
 
 5. An act of the General Assembly, authorizing the peo- 
 ple of a County to take stock in a Railroad Company, and to 
 determine the question by a popular vote, and tax themselves 
 to pay for it, is constitutional. Hill v. Commissioners o 
 Forsythe, 07 N. C. It. 337. 
 
116 COUNTIES AND COUNTY COMMISSIONERS. 
 
 <» I " poii a cote giveu before the adoption oftbe present 
 Constitution, by tbe chairman of a county court, expressed 
 tn be for the county, partial payments were made by the 
 Board of Commissioners before suit brought: held, that it 
 was not necessary for the plaintiff to show that the said chair- 
 man had authority to give the note, or demand and notice 
 before suit. Green v. Com'rs of Cherokee, <>7 N. 0. R. 117. 
 
 7. The Act- of lS7'J-7.'», chap. 143, which changes the di- 
 viding line between the counties of G-ranville and Franklin, 
 and thereby adds a portion of the territory of the former to 
 the latter county, is constitutional, not being necessarily in 
 conflict with the provision of the 5th section of the 2d article 
 o< the Constitution relating to the Senatoriol Districts, nor 
 with the provision of the 6th section of the same article, 
 which relates to the apportionment of members in the Bouse 
 of Representatives. Commissioners of Granville County v. 
 Ballard, <><> N. 0. R 18. 
 
 S. The Act of 1872-73, chap. 143, changing the dividing 
 lip.es between the counties of Granville and Franklin, and 
 thereby adding a portion of the territory of the former to the 
 latter county, is not unconstitutional, and the carrying out of 
 its provisions cannot be enjoined at the instance of a creditor 
 on behalf of himself and ihe other creditors of the former 
 county. Moore et al. v. Ballard, 69 N. 0. R. 21. 
 
 0. When a few of a class are permitted to sue for a whole 
 class, and especially when permitted to sue for the public, 
 they will not be allowed technical advantages which involve 
 a breach of faith. Therefore, it is no good defence to a suit 
 on the bonds issued to pay for stock subscribed for by a 
 county in a certain railroad, that the agent authorized to 
 make such subscription, instead of subscribing for the stock 
 himself, purchased the same from a third person. Street v. 
 County Commissioners of Craven, 70 N C. R. (541. 
 
 10. Nor is it a valid defence that the county issued its 
 own bonds to pay such subscription instead of negotiating a 
 loan, as empowered to do by the Act. Ibid. 
 
 11. When by the act authorizing a county to subscribe 
 for stock in a railroad, it is provided that such county may 
 "levy such taxes annually as may be sufficient to pay the 
 amount of such loan and interest thereon," the Board of 
 Commissioners of the county have the power to lay a tax of 
 $2 on every $100 of property. J bid. 
 
 1*2. Equity will enjoin no one to make an iniquitous 
 defence. Therefore, a Board of County Commissioners are 
 not compelled to plead the statute of limitations, even when 
 such plea would be a valid defence. Ibid. 
 
COUNTY TREASURER.— COVENANT. 
 
 Mandamus 2, 4. 5, 7. 11. 12, 14. 15, 10. 22, J 24, 
 25, 26, 27, 28, 29, 31, - nent 7 P iblic i 
 
 11, 12, 13, 14. 15, 16, 17. 31, 32, 36.) 
 
 DUNTY TREASUFZ 
 
 1. The Constitution in art. 7, under the bead "Muni - 
 pal Corporations " pi for the Hon biennially in ea 
 
 € a Treasurer, I \ er of Deeds, &c>, and as the 
 - nothing in that article or any other to extend the term 
 office of Treasurer elected at the first election in 1868 beyond 
 two years, term expired in 1870. AdtrhoU v. McKi . I 5 
 X. C B 257. 
 
 The term of of office of a Treasurer appointed by * ■ 
 Board of Commissioners in a county to till a \a< is only 
 
 t of the unoccupied term of his prede 7 /ye-/. 
 
 COVENANT. 
 
 1. A covenant not to prosecute the suit to judgment ag 
 him, given to one of two nu - of a prom note, upon 
 
 consideration of his having, pending such suit, paid a part 
 
 the note sued upon, does not extinguish the <:e!,t as, to the 
 other maker. Winston v. Dolby, 64 N. C. I: 2 
 
 _'. In a € doubt, an instrument will be construed as 
 
 a- itnot to stir, i mt! jfrr than as a release. Russtttw. 
 
 Addert . U N C. JJ 417. 
 
 The -ration of a covenant not to sue, was formerly, 
 that, after the creditor had taken judgment for bis debt, t 
 venantee resorted to equity for;- e of 
 
 ■nt. in the rse of which he -'-ted, 
 
 not only from ps . any thing more directly, but, if tin 
 we <. by restraining the creditor from collecting 
 
 amount out of them, its that would sub; venantee to 
 
 their action, and thus violate the covenant ii 
 tin ei prim ipal oW . g the ec- 
 
 tion of more than an aliquot part of the deli*. I any amoo I 
 that would subject the covenantee to an action for contribu- 
 tion. Jh'l 
 
 4. Under the C. 0. P. the lame relief may be had 
 torn nter-' ia >i„. - - *■> put the judg I in the form o4 
 
US COVENANT. 
 
 separate one against the several other principals, for sich an 
 amount of the debt and interest as would not give them a 
 right of action against the covenantee. Ibid. 
 
 5. A, B and enter into a co-partnership with a capital 
 of $8,400 A sells out to B, who, after reciting that the con- 
 cern had incurred a debt for capital stock, for which A, B 
 and C "were equally liable," covenanted to "assume the pay- 
 ment of all liabilities incuned b> the said A on account of 
 the aforesaid business," and B further agreed " to pay off and 
 discharge all the liabilities incurred by said A on account of 
 the aforesaid business, so that the said A shall come to no 
 loss or damage:" held, that B*was responsible to A for his 
 share of the capital stock, and that the share of each was a 
 charge against the co partnership business. Bledsoe v. Nixon. 
 68 N". C R. 521. 
 
 0. In an action for the breach of a covenant of seizin, 
 the general rule that the vendee recovers, as damages, the 
 price paid fur the land, with interest from the time of pay- 
 ment, is subject to many modifications, as where his (the 
 vendee's) loss, in perfecting the title, has been less than the 
 purchase money and interest, he can only recover for the ac- 
 tual injury sustained. Farmer's Bank of North Carolina v. 
 Glenn and Wife, 08 N. C. R. 35. 
 
 7. And if, after the sale to the vendee, the vendor perfects 
 the title, such subsequently acquired title enures to the ven- 
 dee by estoppel ; which, being a part of the title, may be 
 given in evidence without being specially pleaded. Ibid. 
 
 8. A enters into a covenant to purchase of B certain 
 lands, at the price of $2,500, to be paid by the surrender to 
 B of a note held by A against him for $1,700, payable in 
 specie or its equivalent, and A promising to pay (or secure) 
 the balance ot the purchase money for the land to : held, 
 that A was not entitled to any premium on the note for 
 $1,700 agreed to be surrendered, as by the agreement to 
 surrender, the value of that note as weli as the price of the 
 land was determined by the parties. Jarrat v. Wilson, 70 
 N. 0. R. 401. 
 
 9 Where a covenant is not to be performed on the land, 
 but concerns it, the covenant will be enforced against an 
 assignee of the covenantor with notice. Norfleet v. Cromwell, 
 70 N. 0. R. 034. 
 
 10. If the party from whom an assignee purchases can- 
 not complain of an alleged misuser of an easement, the 
 assignee cannot, as he stands in the shoes of him from whom 
 he purchased. Ibid. 
 
 Sec (Draining Wet Lands 2, 3, 5 ) 
 
CURTESY.— CUSTOM.— DAMAGES. 119 
 
 CURTESY. 
 
 See (Husband and Wife— Husbaud's interest in his wife's 
 property 2, 3.) 
 
 CUSTOM. 
 
 1 . "Where there are two places upon a railroad for the recep- 
 tion of freight, one called the depot proper, the other a plat- 
 form a half mile distant from the depot proper, where heavy 
 and bulky articles were received and deposited for shipment; 
 and there was evidence tending to show that a quantity of 
 cotton, (the subject matter in controversy) had beendeliv- 
 ered at the platform; held, that under the circumstances of 
 this case, the defendant had a right to ask a witness the 
 question, "Where was the customary place to deliver cotton 
 to the W. C- & R R R , iu Charlotte?" and also the question, 
 "where was the Railroad depository of cotton:" and that it 
 was erroneous in the court to exclude such testimony. 
 Homesly v. Elms, 66 N. C R. 330 
 
 See (Evidence — Admissions, Declarations and Acts of 
 parties and privies, 3.) 
 
 DAMAGES. 
 
 A purpose to damage does not make an act, otherwise 
 lawful, injurious, in legal sense. Thornton v. Thornton, 63 
 KCK 211. 
 
 2. Iu an action of covenant, for the non-payment of a cer- 
 tain amount borrowed iu bank bills, the measure of damages 
 is the value of such bills when obtained, in coin, and evidence 
 as to the value of the property which the covenantor after- 
 
 . -wards purchased therewith, is not competent. Harris v. 
 Davis, 64 N C. R. 574. 
 
 3. Damages for not fulfilling a contract, that was to have 
 been performed in October 1865, may be estimated in cur- 
 rency, oud need not at first be estimated in gold, then adding 
 depreciation. Patton v. Hunt, 64 N. C R. 168. 
 
 4. In actions to recover damages for an injury resulting 
 in death, brought under our act, the correct rule touching the 
 
120 
 
 DAMAGES.— DEEDS— I. 
 
 quantum of damages, is, the reasonable expectation of pecu- 
 niary advantage, from the continuance of the life ot the 
 deceased, and evidence of the number of children left by the 
 deceased, is inadmissible as irrevalent and calculated to mis- 
 lead the jury ; but it is competent to prove the age, strength, 
 health, skill, industry, habits and character of the deceased,, 
 with a view to arrive at his pecuniary worth to his family. 
 Kesler v. Smith, <>6 K 0. R. 154. 
 
 5. The value of property taken under process, should be 
 assessed at the time of trial, as the taker should have the 
 option of returning the property so taken, or of paying its 
 assessed value. If the price of the property taken has fallen 
 in the time, the jury should include the difference in their 
 assessment of damages for the detention. Boyleston Insu- 
 rance Co. v. Davis, 70 N. 0. R. 485. 
 
 See (Assumpsit, 3.) (Mills, 3, 7.) 
 
 DEEDS. 
 
 I. Of the execution and da'.e of a 
 
 deed. 
 II. Construction of deeds. 
 
 III. Of the operation of a deed, and 
 
 when they may be avoided. 
 
 IV. Deeds in trust. 
 
 I. OF THE EXECUTION AND DATE OF A DEED. 
 
 1. The bargainee in a deed having refused to accept it af- 
 ter it had been acknowledged by the bargainor before a com- 
 petent officer and a certificate ot the acknowledgment appen- 
 ded, a delivery will not be presumed from a subsequent regis- 
 tration, but the onus will be upon him who would establish 
 the deed. Gaither v. Gibson, Phil. L. R. 530. 
 
 2. The antedating of an instrument, in a case where it did 
 not appear to have been done with a fraudulent purpose and 
 where it had done no harm to others, punished only by re- 
 fusing costs to the party involved in it. Shaver v. Shoemaker, 
 Phil. Eq. R. 327. 
 
 3. A freehold estate in lands once vested by fleec], cannot 
 be divested by a subsequent re-delivery of such deed to the 
 vendor, even where such re-delivery is accompanied by an 
 (here, unsealed) endorsement, signed by the vendee, to the 
 effect, "I transfer the within deed to W. F. T. again. Linker 
 v. Long, (54 N. 0. R. 290. 
 
 4. Such endorsement furnishes evidence of an agieement 
 to re-convey, which might be enforced by a Court of equity y 
 
DEEDS— L— II. 121 
 
 upon a proper application in any case which (like the present) 
 was pending at the time that the 0. 0. P , was adopted. Ibid- 
 
 5. The burden ot proving the due delivery of a deed, which 
 devolves upon him who claims under it, is not avoided by 
 showing that he has it in possession. Whitsett v. Mebane, 
 64 N. 6 R. 345. 
 
 6. Therefore, where a surety, before signing a bond, stipu- 
 lated that it should be placed in the possession of a third 
 party, until such surety should receive ot the principal a cer- 
 tain indemnity against the risk he was assuming, and then 
 only be delivered to the obligee : held, that a delivery by 
 such third person to the obligee, before the performance of 
 the condition stipulated for, was void; also, that the posses- 
 sion of such bond by the obligee, did not shift from him the 
 burden, ordinarily existing, of proving that the bond had 
 been duly delivered to him. Ibid. 
 
 7. If a grantee, although an illiterate man, executes a 
 deed without demanding that it be read, or elects to waive a 
 demand tor the leading, the deed will take effect. Commis- 
 sioners v. Kesler, 67 N. 0. It. 44,3. 
 
 See (Deed — Ot the operation of a deed, &c, 5.) 
 
 II. CONSTRUCTION OF DEEDS. 
 
 1. Where real and personal property was given to A in 
 trust foi his wife and their children, with power to apply the 
 proceeds to the maintenance, ct*c, of the cestui que trusts, 
 and as the children should come to maturity to advance them, 
 and also to devise the property to his wife and such of his 
 children as he should deem right: held, that upon the death 
 of any such children in A's life-time, their several shares in 
 the property vested in their real and personal representative, 
 subject to any execution thereafter of the said power. That 
 under the power to devise, inasmuch as some of the children 
 survived him, he could not devise to a grand-child. Carson 
 v. Carson, Phil. Eq. K 57. 
 
 2 A limitation by deed to W. J S., and his heirs — "for 
 and during the period of his natural life; at his death said 
 property to go to the heirs of his body, to them, their, heirs 
 and assigns forever," — creates a fee simple in W. J. S. ; and 
 a limitation over, "in default of heirs of his body living at 
 his death," is too remote. McBee, ex parte, (13 KG R. 332. 
 
 3. Where the maker of a paper writing inter vivos died 
 without delivering it, any gift therein contained is void; and 
 the fact that the donee is a son of the donor will not auth- 
 
122 DEEDS— II. 
 
 orize a Court of Equity to assist him as a meritorious claim- 
 ant, in the absence of any declaration of intention by the 
 donor in his favor, other than as contained in the writing, — 
 especially where he is provided tor in the will of the deceased, 
 and such assistance is asked against other persons equally 
 meritorious. Ibid. 
 
 4. In putting a construction upon a deed or other written 
 instrument, facts existing at the time to which the words 
 used point, may be proved as a key to the meaning; just as 
 the condition of a testator's family and estate at the date of 
 his will may be proved, to aid in arriving at his meaning. 
 JRiclmrds v Sohlegelmich, 63 N". 0. R. 151). 
 
 5. Where a deed was made by a father to his son, in 
 pursuance of a previous agreement, and contained the follow- 
 ing clause, to-wit: "for, and in consideration of $200, and 
 the faithful maintenance of T. L. and wife, P. L., hath given 
 and granted unto the said T. L., a certain tract of land, to 
 have and to hold, &c :" held, that this stipulation constitutes 
 a charge upon the land, in the hands of the heir-at-law, 
 though not upon the personal estate in the hands of the ad- 
 ministrator. Laxton v. Tillg, (Jo* N. 0. K. 527. 
 
 6\ When a party conveys by deed certain real estate in 
 trust to secure the creditors therein named, and afterwards 
 makes another deed conveying the said real estate, with other 
 property, in trust to secure a number of creditors whose 
 names are set forth in a schedule, with this further proviso : 
 " Beiug desirous of placing all the creditors of the said party 
 of the first part upon a basis of equality, so far as their rights 
 are concerned, and in case it should turn out that any creditors 
 of said party hive been omitted in said schedule, it is hereby 
 -expressly declared that such creditors, so omitted, shall be 
 allowed to share equally in the benefits of this trust with 
 those expressly named ;" held, that upon a fair construction 
 of the latter deed, creditors named in the first are entitled to 
 no part of the funds raised under the second deed. Doivd, 
 Trustee, v. Coates <fc Springy, 67 N. 0. 11. 273. 
 
 7. An intention to make a further provision for the for- 
 mer class of creditors, at the expense of the latter class, is 
 very improbable, and by the rules of construction, which are 
 merely deductions of common sense, a construction to give 
 effect to an intention which is improbable and unreasonable 
 must be excluded, unless such intentions is expressed in plain 
 and direct words. Ibid. 
 
 8 The words "in case it shall turn out that any creditor 
 has been omitted iu said schedule, such creditor or creditors 
 
DEEDS— II. 123 
 
 so omiteed share equally with those expressly named," are 
 appropriate to express an intention to exclude one or more 
 creditors whose name had been accidentally omitted, but 
 inappropriate to include a large number whose debts had 
 already been provided for. Ibid. 
 
 9. The provision, that all the creditors should be on a 
 basis of equality, would be a mockery, if the creditors of the 
 first class "were to come in, without accounting for the 
 amounts received under the first deed. Ibid. 
 
 10. A clause in a deed " as long as the system of common 
 schools shall be continued at that place, or as long as it shall 
 not be applied to any other purpose except for schools, of any 
 kind," is not expressed in apt and proper terms to create a 
 condition, or qualification of the estate conveyed, or even a 
 covenant to run with the laud, ticliool Commissioners v. 
 Kesler, 07 N. C. E. 443. 
 
 11. A base or qualified fee has never been in use or in 
 force in this State, or recognized by its laws ; and a condition 
 or qualification in a deed, conveying an estate to a school 
 committee "as long as the system of common schools shall 
 be continued, &c , is contrary to public policy, repugnant, 
 and inconsistent with the nature ot the grant, and therefore 
 void. J bid. 
 
 12. Where three persons upon receiving a deed from their 
 father, J. T., made with him the following covenant : "That 
 J. T. and his family shall have their home upon the land, he 
 has this day as executor of J. 0., conveyed to them, and that 
 he and his family shall have the use ot all the personal prop- 
 erty this day conveyed so far as is necessary for their use and 
 convenience, and further, that they shall have a support out 
 of what shall be made upon said land during the life of J. T'.: 
 It was hell, that the limitation in the last sentence, "during 
 the life of J. T." applied to all the clauses in the deed, and 
 that after death of A. T , his said sons were entitled to the 
 possession and enjoyment of all the property conveyed by the 
 deed Terrell tt al v. Terrell, m N. 0. Ill 50. 
 
 13. When a defendant admits that the plaintiffs are the 
 owmers of the remainder in fee of the land sued for, but con- 
 tends that he is tenant for life of the said land under a certain 
 deed executed by the plaintiff, he cannot controvert the title 
 of the plaintiffs to the land, but is confined to his claim under 
 that covenant, and the validity of his claim to a life estate 
 will depend upon a proper construction of it. Ibid. 
 
 14. Wheie the premises in a deed of bargain and sale 
 emitted the word heirs in the limitation of the estate to the 
 
124 DEEDS— II.— III. 
 
 bargainee, but the habendum and warranty clauses were as fol- 
 lows : To have and to hold free and clear from all just claims, 
 I, the said J. B , dolh warrant and defend the right and title 
 of the said tract of land, to have and to hold free and clear 
 from me and my heirs, and the claims of any other persons, 
 unto him, the said G. H., his heirs and assigns : It tvas held, 
 that the clauses were not a mere warranty to the bargainee 
 and heirs, but were in effect, in addition to the warranty, a 
 habendum to him and his heirs, thus conveying to him an 
 estate in fee simple. Phillips v. Davis et al, 69 N. C R. 117. 
 See (Evidence — Parol Evidence, when admissible, 4-5 ) 
 
 III. OF THE OPERATION OF A DEED, AND WHEN IT MAY BE AVOIDED. 
 
 1. A deed of bar-gain and sale is irot void because of 
 iuforraality, if its terms be such as show the intention of the 
 parties. Royster v. Royster, Phil. L. R. 226. 
 
 2. A limitation in a deed of bargain and sale, to one for 
 life with remainder in fee to another, the consideration being 
 expressed to have been paid by the latter, is valid. Hid. 
 
 3. The widow of the remainderman in such case, the 
 tenant for life surviving him, is not entitled to dower-. IUd. 
 
 4. Where oire proposed to convey a tract of land in trust 
 and his brother undertook to have the deed drawn, and 
 thereupon, without the knowledge of the vendor, inserted 
 thei-ein a conveyance also of another tract in trust for himself, 
 and upon presenting the deed for execution, in reply to a 
 question by the vendor-, said that it was "all right," where- 
 upon the latter executed it without reading it, or hearing it 
 read : held, that the conveyance of the second tract was valid 
 at law. Mc Arthur v. Johnson, Phil. L. R. 317. 
 
 5. Distinction between fraud in the factum, and other 
 fraud attending the execution of deeds, stated and applied. 
 IUd, 
 
 0. A deed in fee executed in 1850, which contained a 
 memorandum that it was executed instead of a lost deed 
 executed iir 1854, conveyed all the estate which the vendor 
 had in the land at the time of its execution, and not that 
 only which he had in 1854. King v Little, Phil. L. R. 484. 
 
 7. A (\eed, the consideration of which is the prospective 
 support of the bargainor, is valid as a bargain and sale; and 
 if the vendor be proved to be the mother of the vendees, 
 also, as a covenant to stand seized. Salms v. Martin, 63 
 N. 0. R, 608. 
 
 8. Semble, that under the provisions of ch. 37, sec. 1, of 
 
DEEDS— III. 125 
 
 the Rev. Code, a conveyance of land in North Carolina does 
 not require a consideration (except so far as required by the" 
 policy in favor of creditors, aDd purchasers for value,) but 
 ordinarily is valid if executed and registered, as there required, 
 without the addition of any of the former ceremonies. Ibid. 
 
 9. A conveyance in regular form, executed in 1859, with 
 a memorandum under seal annexed stating that it was made 
 in substitution for a previous deed between the same parties 
 for the same land executed in 1854, and lost, — will, notwith- 
 standing such memorandum, pass whatever estate the bar- 
 gainor may have in such land in 1859. Little v. King, 04 
 K 0. B.361. 
 
 10. Where a complaint sought for the cancellation of a 
 deed alleged to have been delivered under the following cir- 
 cumstances: At Fall Term, 1803, the Judge who held the 
 Superior Court for the County of Burke, in which the parties 
 resided, made a violent charge to the grand jury, upon the 
 .subject of r«ceivi)i g Confederate money for debts, threatening 
 such as refused it, with imprisonment; thereupon the defen- 
 dant, who was a judgment debtor (rendered in 1858,) of the 
 plaintiff's testator, upon a bond payable in specie as the con- 
 sideration for a tract of land, for which he held the judgment 
 creditors bond for the title — moved bis honor to be allowed 
 to pay off the judgment in Confederate money, and was 
 allowed to do so, and to have satisfaction entered, and the 
 Judge also sent word to the creditor, that, if he did not 
 receive the Confederate money and execute a deed, he would 
 Lave him sent to Richmond, Va. ; and the latter, under fear, 
 being infirm, &c , received the money and delivered the deed: 
 held, that the plaintiff was entitled to the relief deman- 
 ded. Harshaw v. Dobson, 04 N. C. R. 384. 
 
 11. A deed for land, when registered, has all the force 
 and effect of a feoffment at common law with livery of seizin 
 and a declaration of uses thereon. Ivey v. Gronberry, 00 
 X. C. R. 224. 
 
 12. By the policy of our statutory law, a bastard stands 
 in such a relation to his mother, that the relationship between 
 them is a sufficient consideration to raise a use, aliter as to 
 the father. Ibid. 
 
 13. A registered deed from a mother to her bastard child, 
 is valid and conveys the title, either, as having the same oper- 
 ation as a feoffment with livery accompanied with a declara- 
 tion of the use, or, as a covenant to stand seized to uses. 
 Ibid. 
 
 14. Since, as well as before, the statute of uses, 27 Hen., 
 
126 DEEDS— IIL— IV.— DESCENT. 
 
 8, no ; ctual consideration is necessary to raise a use in con- 
 veyan< es operating by transmutation of possession as tine, 
 feoffment, &c, amv a deed to lead or declare the uses, was 
 only necessary to prevent a resulting use, arising to the con- 
 usor, feoffor, &c. Ibid. 
 
 15. Here, as registration supplies the place of feoffment 
 with livery, the deed has the effect to lead tne uses, and thus 
 rebuts the resulting trust. Ibid. 
 
 1G. Whether the question ot a lack of consideration is open 
 to any but creditors and purchasers for value, quere — per 
 Meade, J. it is not. Ibid. 
 
 IV. DEEDS IN TRUST. 
 
 See (Trusts and Trustees passim.) 
 
 DESCENT. 
 
 1. Where, at the death of the ancestor those capable of 
 inheriting were, two nieces, children of a brother who had 
 died an alien ; four children of another niece, also a child of 
 that brother, who had died after being naturalized ; and a 
 fourth niece, a child of a sister of the deceased who had died 
 an alien : held, that the real estate was to be divided into 
 four parts, ot which the three nieces took one each, and the 
 fourth was to be divided among the four children of the niece 
 who had died after naturalization. Harman v. Ferrall, 64 
 N. C. R. 474. 
 
 2. Where a will is contested, land devised therein vests 
 ad interim in the heirs of the deceased. Floyd v. Herrinq, 
 64 K 0. K. 409. 
 
 3. It is well settled that in descended estates, where the 
 person last seized dies without leaving issue, or brother or 
 sister of the blood of the first purchaser, but a half-sister not 
 of such blood, and remote collaterals of such blood, the in- 
 heiitance shall descend upon such remote collaterals, rather 
 than upon such halt-sister. Docier v. Grandy, 66 N. 0. R. 
 484. 
 
 4. When lands descend to collateral relations, under the 
 Act of 1856, (Rev. Code, ch. 38, sec. 1, rule 4,) the collateral 
 relations of equal degree take per stirpes and not per capia* 
 Cromartie, v. Kemp, 66 N. C R. 382. 
 
 5. To entitle a husband to an estate as tenant by the 
 
DESCENT.— DEYISE— I. 
 
 127 
 
 curtesy, before the adoption of the Rev. Code, (1st January, 
 1856,) a seizen in deed was necessary; and under the rates 
 prescribed in chap. 38 of the Rev. Stat , (1st January, 1B3K,) 
 a seizen in deed was also necessary, in case of the parent's 
 claiming a life estate upon the death oi his child. Now under 
 the provisions of the Rev. Code, chap. 38, rules 1 and 13, 
 neither actual nor legal seizen is necessary to make the stock 
 in the devolution of estates. Sears v. McBride, 70 N. C. R. 
 152. 
 
 G. A. died seized and possessed of real and personal estate, 
 leaving him surviving three grand-children by a son and five 
 by a daughter — the son and daughter having died before A: 
 held, that under rule 3, Bat. Rev , chap. 36, the grand-chil- 
 dren represent their ancestors, and take the estate per stirpes 
 and not per capita. And as the parties take by representa- 
 tion, it follows that any advancements made to the ancestors 
 must be accounted for. Crump v. Faucett, 70 N. C. R. 345. 
 
 See (Naturalization.) 
 
 DEVISE 
 
 Construct/! n or to what passes 
 
 II. 
 
 and who takes. 
 
 III. 
 
 Power to sell real estate. 
 For charitable uses. 
 
 I. CON T STKU( TION OR TO WHAT PASSES AND WHO TAKES. 
 
 1. The contingency involved in a limitation over upon the 
 death of one " leaving no heirs of his body," cannot be deter- 
 mined until the death has occurred; therefore, where one 
 devised land to a grandson, providing that if he died without 
 an heir of his body it should go over to certain other grand- 
 sous and the survivors of them, and in case the last survivor 
 of these died without heirs of the body, then over : held, that 
 the first taker and the grandsons together could not convey 
 an iudefeasible title in fee. Jsler v. Whitfield, Phil. L. R. 493. 
 
 2. A devisee of land to the testator's son and daughter 
 for life, "and then to go to my [testator's] heirs at law, and 
 their heirs and assigns forever excluding all those on the part 
 of my [testator's] sister, Brooks": held, to pass a contingent 
 remainder to the persons described as "heirs at law," as they 
 could be ascertained onlv after the termination of the parti- 
 cular estate. Hall v. Want, Phil. L. R. 502. 
 
 3. Held, also, that a partition in fee under order of court, 
 made between the son and daughter, (at that time the testa- 
 
128 DEVISE— I. 
 
 tor's only heirs,) was no ground for an estoppel to the child- 
 ren of the daughter, who upon the death of the sou without 
 issue, their mother having died before, claimed the land un- 
 der the devise. Ibid. 
 
 4. Also, that a bargain and sale in fee by the son, of the 
 part allotted to him under the partition, was without effect 
 upon the remainder. Ibid. 
 
 5. A clause annexed to a devise in fee, providing that in 
 case either of the devisees "shall sell or encumber his laud 
 with any sort of lien, by way of mortgage or otherwise," be- 
 fore attaining the age of thirty-five years, theu the devise 
 should be void, is invalid. Ttviity v. Camp, Phil. Eq. R. 61. 
 
 0. Where land was devised to the widow of the testator 
 for her lite, and afterwards to a son in fee : " provided he pays 
 within two years from her death $150.00 to the heirs of my 
 son William": held, that the land was charged with this sum, 
 and therefore a purchaser of it for value, from the widow and 
 remainderman, with notice of the sum charged as above, was 
 liable for it to the legatees, incase they could not get it from 
 such remainderman. Patterson v. Patterson, 63 JS". C. li. 322. 
 
 7. Ileal estate, ordered by a testator to be sold and the 
 proceeds divided amongst certain children, is considered as 
 personalty from the time of his death. McBee ex parte, 63 
 N". 0. 11. 332. 
 
 8. A testator devised his skillet-handle farm to A B, in 
 discharge of a debt due to her, and provided further, in 
 another part of the will, that a certain house should, at the 
 expense of his estate, be removed from another tract to the 
 farm given above ; the devise having been accepted, held that 
 although as regards creditors, the house was to be treated as 
 personalty, yet as against the other devisees it remained 
 realty, and therefore that A B, being a purchaser for value, 
 was entitled to have its vilue, and a sim sufficient to pay for 
 its removal, as above, made up to her by other devisees. 
 Humphries and wife v. Shaw, 63 N. 0. R. 341. 
 
 9. A testator desired his property, real and personal, after 
 the death of his widow, to be divided among his heirs ; ex- 
 pect that A should have $50, and B, C, D and E $10 each, 
 above their distributive shares: held, that these sums were 
 to be made good out of the real estate, if the personalty 
 proved insufficient Crocker, ex parte, 63 N. (J. E. 652. 
 
 10. A clause iu a will, giving " unto my wile the use aud 
 benefit of all my estate, real and personal, after payiug my 
 just debts, during her natural life. 1 also leave in the power 
 of my wife to lay out all the surplus funds, ^consisting of 
 
DEVISE— I. 129 
 
 notes and cash, in land, for her especial use and benefit dur- 
 ing her natural life, and, after her death, to be given to my 
 uiece; also, a county claim of the following amount, $2,573 21, 
 to be appropriated as above," gives a remainder in the sur- 
 plus funds to M.'J., whether they were invested in lands or 
 not Charles v. Kennedy, 04 N. C. R. 442. 
 
 11. Especially is this so iu a will in which it appears that 
 M. J. was the principal object of the testator's bounty; and 
 that the testator did not intend to die intestate as to any 
 portion of his estate. Ibid. 
 
 12. A testator bequeathed to his wife certain slaves, 
 horses, farming tools, &c, and devised to her one-half of his 
 land, and in the latter part of said clause, he also bequeathed 
 her " all my grain on hand for the support of the family ; and 
 should my wife wish to sell, or dispose of any of the above 
 property, she can do so, with the advice and consent of my 
 executor:" held, that she took an absolute estate in the 
 realty devised, and after the assent of the executor, she ac- 
 quired an absolute estate in the personal property embraced 
 in said clause. Carpenter v. Ketter, 65 N. C. R. 475. 
 
 13. Where a testator devised, — to A, his "plantation 
 between Burnt Coat and Beaver-dam Swamp," to B, " all 
 that portion of Ms Enfield tract of laud lying north of the 
 old road from Old Enfield to Halifax town," — to others, " all 
 the balance of his property, after paying debts ;" and after- 
 wards cancelled the devise to A : held, that although the 
 description of the laud given to B, would, per se, include that 
 given to A, yet, inasmuch as when first written, the testator 
 did not use it in this large sense, such sense could not be 
 imposed upon it by the mere cancellation of the devise to A: 
 held, also, that the legal effect of such cancellation was to 
 throw the land given to A into the residue. Branch v. Hun- 
 ter, Phil. L. R. 1. 
 
 14. Whether, under the words "my plantation," used in 
 a will, all lands contiguous to the home place of the testator, 
 will pass, qnere t McLenan v. Chisholm, 06 N". C. R. 100. 
 
 15. In construing a will where it is not punctuated, and 
 is very ungrammatical, it ought to be so read as to make it 
 consistent and sensible. Therefore, where a clause of a will 
 is in these words: " Also all my live stock to be divided 
 between my wife, Amy Blandina Maria and Michael ; and all 
 my land and plantation, with all the buildiu^s, I give and 
 bequeath unto the above named Michael Whitener ; all my 
 vessels and stands and my wind-mill or fan, all dues by note 
 or book account, I also give to my son Michael Whitener :" 
 
130 DEVISE— I. 
 
 it was held, that by a proper construction of the clause the 
 land was devised to Michael Whiteuer. Hoyle v. Whitener, 
 07 N. 0. R. 252. 
 
 10. A testator, after giving his land to his wife for life, 
 devised as follows : " At my wife's death, it is my will that 
 nay land be equally divided between my sons, J, E and W, 
 and the negroes given her (the wife,) as above, are to be 
 disposed of as follows : that is, each of them upon their arri- 
 val at lawful age, is to have an equal part of the said negroes, 
 except my sons T and F, and my daughters P, B and 0," 
 &c: held, that the three sons named were alone entitled to 
 the laud. I J ope & wife v. Whitehead et al, 68 N. C R. 191. 
 
 17. A, in his will, gave to his wife, " all my estate, real,, 
 personal and mixed, to be managed by her, andthat she may 
 be enabled the better to control and manage our children,, 
 to be disposed of by her to them, in that manner she may 
 think best for their good and her own happiness:" held, to 
 be a gift to the wife in trust, not for herself nor the children 
 alone, but for both, to be managed at her discretion for the 
 benefit of herself and children. Young v. Young, 68 N. C. R. 
 309. ' 
 
 18. Testator devised a certain tract of land, describing it, 
 to his son D and his heirs forever, annexing this condition:: 
 "Now in case the said D and the balance of my heirs cannot 
 agree in the price of the above described or bounded lands, 
 the parties can choose a mutual board of valuation, and if 
 the said D is not williug to abide by the valuation thus ob- 
 tained, then in that case I will that the above bounden lands 
 shall be sold, and the proceeds equally divided among all my 
 heirs, excepting, &c.: held, that D should have the land, but 
 that he should pay to the other heirs their proper shares of 
 its reasonable value; held further, that should D decline to- 
 take the land the same will be sold and the proceeds divided 
 as prescribed in the will. Tattle v. Puitt, G8 N. C. R. 543. 
 
 1 9. 11< Id further, that the trust is coupled with the power 
 to dispose of the property among the children at her own 
 discretion as to time, quantity and person; and that no one 
 of them is entitled, as of light, to have a share of the prop- 
 erty alloted to him upou his arrival at age. Ibid. 
 
 20. Where a testator directs his property, land or per- 
 sonal property, to be equally divided among his heirs, the- 
 division must be per capita and not per stirpes. 1 bid. 
 
 21. Where a testator gave to his wife all his lands and 
 many articles of personal property, and added "all of which 
 property to be Ler's during widowhood ; in the event of her 
 
DEVISE— I. 131 
 
 marriage, the one-third of the above property to be her's for- 
 ever, and the balance to be divided among my children, and 
 subject to the same restrictions as hereafter mentoined," 
 which restrictions were that other property given to his chil- 
 dren should be be their's for life with liniitaions to their chil- 
 dren : it teas held, that as the wife never married again the 
 interest which she had taken in the lauds was for life only, and 
 upon her death they descended to the heirs-at-law of her 
 husband. Pettis v. Smith, 69 N. C. R. 543. 
 
 22. Testatrix, after providing for the payment of her 
 debts and funeral expenses, says : " the balance of my prop- 
 erty of all kind, I give to my grandson J T, to him and to his 
 heirs, and it he should die and leave no lawful heirs of his^ 
 body, then in that case I give," &c: held, that the estate of 
 J T was an absolute one at the death of the testatrix, and 
 went upon his death to his representatives. Davis v. Parker, 
 69 N. 0. R. 27 1. 
 
 23. When a testatrix devised a tract of land to her sou, 
 to him and his heirs forever, and added the following clause : 
 "but should my son die without lawful issue, then and in 
 that case, it is my request, (inasmuch as it was his fath- 
 er's wish) that the above giveu legacy be by hun conveyed by 
 will in writing, to his brother, J. F. N., or to any one or more 
 of my grandchildren : it was held, that he took and absolute 
 estate in fee simple in the land, and that upon his death 
 without issue and intestate, it might be sold by his adminis- 
 trator for the payment of his debts. Batch elor v. Macon, 69 
 N". C. R. 545. 
 
 24. A testator directed, after giving some pecuniary lega- 
 cies to certain grand-children which was a charge upon the- 
 whole of his estate, that his "real and personal property re- 
 main as a common stock for the family that now make their 
 home here, subject, nevertheless, to any distribution which 
 my executors hereinafter named may think proper to make :''' 
 held, that all the living children' of the testator, and the rep- 
 resentatives of the deceased children, are tenants in common 
 of all the real and personal estate, with partition postponed 
 until circumstances should make it necessary. The separa- 
 tion of the family, and the death of some, and the sale of the 
 interest of one, thereby letting into the family a new and dis- 
 turbing element, is such a change of circumstances as makes 
 a partition proper. Dickson v. Dickson, 70 N. C. R. 487. 
 
132 DEVISE— II.— III.— DIVORCE AND ALIMONY. 
 
 II. POWER TO SELL REAL ESTATE. 
 
 A direction in a will to divide an estate real and personal, 
 is not a direction to sell the real estate tor a division : hence, 
 the words, " The rest and residue of my estate, whether real 
 or personal, I give to be divided between the legatees herein 
 mentioned, in proportion," &c, confer no power on the ad- 
 ministrator cum testamento annexo to sell such real estate for 
 the purpose of a division. McDowell v. White, 08 N. 0. R. 05. 
 
 III. FOR CHARITABLE USES. 
 
 1. A devise and legacy to " Bishop Thomas Atkinson, 
 Bishop of North Carolina and his heirs," " in trust for the 
 poor orphans of the State of North Carolina, and the said 
 Bishop and his successors to have the right to select such 
 orphans," <£*c., and he shall direct and control said trust in 
 the best way for thes ipport of said orphans, and the forma- 
 tion of their morals and education," creates a trust for a spe- 
 cified object, in behalf of a definite class, and is valid, at all 
 eveuts during the life of Thomas Atkinson. Miller v. At- 
 kinson, 03 N. C. R. 537. 
 
 2. The difficulties, suggested as likely to occur on the 
 death of Thomas Atkinson, in reference to the exercise of a 
 choice of beneficiaries among the "poor," &c, may be obvia- 
 ted by intervening legislation; the distinction being that 
 where the trust is void because its objects are too indefinite, 
 there can be no aid by legislation ; but where the objects are 
 sufficiently definite, and the trust is valid, the Legislature 
 may interfere to remove any difficulty in regard to limiting 
 the number, and selecting the "orphans" — that being mere- 
 ly secondary, and rendered necessary by the proportions of 
 the fund given. Ibid. 
 
 DIVORCE AND ALIMONY. 
 
 1. A petition for divorce because of adultery by the de- 
 fendant, need not allege that the petitioner has not been 
 guilty of adultery. Edivards v. Edwards, Phil. L. R. 534. 
 
 2. An order for alimony pendente lite creates a debt by 
 record, and may be enforced by either a rule and consequent 
 attachment, or by a fi fa. Wood v. Wood, Phil L. R. 538. 
 
 3. Such order is not necessarily affected by the failure of 
 the petitioner to obtain the relief prayed for in the petition. 
 Ibid. 
 
DIVORCE AND ALIMONY. 133 
 
 4. Upon appeals from interlocutory orders granting ali- 
 mony pendente lite, the Supreme Court founds its decree on 
 a re-examination of the petition only. Lynch v. Lynch, 
 Phil. Eq. R. 46. 
 
 5. Where such petition alleges adultery, it is a sufficient 
 foundation for the order appealed from. 1 bid. 
 
 6. Whether alimony pendente lite shall be allowed at all, 
 is a matter of law Hon- much shall he allowed is a matter 
 of discretion. Schonwald v. Schonwald, Phil Eq. R 215. 
 
 7- An appeal lies from an order refusing such alimony, 
 under the lie v. Code, ch. 39, sec. \o. Ibid 
 
 8 The Superior Courts may allow appeals in such cases 
 without security, under the Rev. Code, ch 4, sec. 23. Ibid. 
 
 9. In North Carolina it is not necessary, as in England, 
 to decide the question of marriage or no marriage, before 
 passing upon the right to alimony pendente lite. Ibid. 
 
 10. In deciding upon such right, the court is confined to 
 a consideration of the petition in the cause- II id. 
 
 11. A delay of seven years in filiDg a petition is suffiei- 
 ently accounted for by trie allegations, that at the happening 
 of the matters relied upon for a divorce the petitioner was a 
 non-resident of the State, and that she is now a pauper. 
 Ibid. 
 
 12. Where the defendant in a petition for divorce and 
 alimony, not having been served with process, was present in 
 court at the term when the petition was tiled, and made 
 objection personally to any order granting alimony : it was 
 held, that such presence and action did not give to the cause 
 the character of a lis pendens; and, therefore, that at such 
 stage no order for alimony could be made. Simmons v. 
 Simmons, Phil Eq. R. 03. 
 
 13 Upon an application for alimony pendente lite, it is 
 unnecessary to decide, whether the petition warrants a divorce 
 a vinculo, or only a divorce a mensa et thoro. Little v. Little, 
 03 N. C R. 22. ' 
 
 14. Where a petition for divorce by the wife showed for- 
 bearance (and connivance) by her in regard to adulteries com- 
 mitted by the husband while she remained in his house, and 
 then charged that afterwards he drove her from his house by 
 threats of violence, swearing he would kill her if she did not 
 leave: luld, to set forth ground sufficient for a divorcer 
 mensa et thoro at least. Ibid. 
 
 15. The provision for a prosecution bond in divorce cases, 
 (Rev. Code, ch. .">!), s. 5,) applies only wheie the wife, by her 
 next friend, is plaintiff. State v. Lyth, 04 N. C. R. 255. 
 
134 DIVORCE, &c— DBAININB WET LANDS. 
 
 16. Where the wife is defendant, her costs are to be paid 
 in advance (unless indulged by the officers,) by the husband, 
 as his own are ; and this will be enforced by order of Court. 
 Ibid. 
 
 17. Our statute, Rev. Code, ch 30, s. 3, allows one-third 
 of the husband's estate to be assigned to the wile when she 
 obtains a divorce. Davis v. Davis, OS N". 0. R. 180. 
 
 18. After a decree dissolving the nuptial tie between a 
 husband and wife, it is no good ground for exception by the 
 husband, the defendant, to the report of the commissioners 
 appointed to allot one-third in value of his estate to his wife, 
 that the commissioners did not take into their consideration 
 his interest claimed in certain land as tenant by the curtesy, 
 supposing, as tiiey stated in their report, that the same be- 
 longed to the wife absolutely. Ibid. 
 
 19. In a suit for divorce, a vinculo matrimonii, the plain- 
 tiff, the husband, is a competent witness to prove the impo- 
 tence of the wife. Barringer v. Barringer, 00 N. C. R. 179. 
 
 '20. Prior to the 1st July, 187-5, suits for divorce were 
 properly instituted before the Superior Court clerk, but since 
 that date, by virtue of the act of 1871-72, chapter 193, the 
 Superior Court in term time alone has jurisdiction. Ibid. 
 
 21. In a petition for divorce, and for alimony pendente lite, 
 it is error in the Court below to decide, at the return term 
 upon matter alleged as a bar to the petitioner's right to a de- 
 cree. And upon the petitioner's making out a prima facie 
 case, she is entitled under the Act of Assembly to alimony 
 pendente lite. Imparls v. Sparks, 69 JS r . C. R. 31!). 
 
 22. Defendant in answer to a petition for divorce, relies 
 upon a record of a former suit between the petitioner and 
 himself, his answer in which suit alleged adultery on the part 
 of the petitioner, and in which the jury found that the peti- 
 tioner had been guilty of adultery with J. M., or with some 
 one else :" held, that such allegation was so indefinite and so 
 vague as to be void and of no legal effect. Ibid. 
 
 DRAINING WET LANDS. 
 
 1. A report of commissioners under c. 40 of the Revised 
 Code, (Draining Lands,) which fails to assess and apportion 
 that part of the labor which, by s. 10, is to be contributed by 
 the defendants, is fatally defective. Brooks v. Tucker, Phil. 
 L. R ' 300. 
 
DRAINING WET LANDS.— EJECTMENT— I. 135 
 
 2. Covenants creating easements run with the land, even 
 as against assignees in iee where the intent to create them 
 is clear, the easements themselves apparent, and the cove- 
 nants consistent with public policy, and so qualifying,or regu- 
 lating the mode ot enjuiuiug the easements, as that, if disre- 
 garded, the latter will be substantially different from what is 
 intended. IS or fleet v. Cromwell, 04 N. 0. E. 1. 
 
 3. Therefore, a covenant to repair a canal dug for the 
 purpose of draining the lands of the parties to the covenant, 
 runs with such lands, and binds a subsequent person in fee. 
 
 4. A party thus bound, is entitled to notice of a call to 
 -contribute, after the repairs have been done; and the want of 
 such notice, even where, previously to the making of the repairs, 
 he had disclaimed liability therefore, is fatal to an action 
 against him. Ibid 
 
 5. Covenants are the proper mode of creating such servi- 
 tudes as consist in acts to be done by the owner of the ser- 
 vient land. Ibid. 
 
 0. When upou the petition of one or more parties, under 
 -the act ol 1785, (Eev. Stat chap. 40,) leave was granted by 
 the county court to cut a canal across the land of another for 
 the purpose of drainage, the petitioners and their assignees, 
 upon the report of the jury provided for in said act being 
 confirmed, acquire not merely an easement but title in fee to 
 the land condemned. Norfleet v. Cromwell, 70 N. C. E. 
 034. 
 
 7. The right of the State to condemn land for drains rests 
 on the same foundation as its right in case of public roads, 
 mills, railroads, school houses, &c. The acts granting such 
 powers are not unconstitutional. Ibid. / 
 
 See (Eoads, 7, 8.) / 
 
 EJECTMENT. 
 
 I. Of the title i ecessary to support 
 the action. 
 •II. Actions for real estate under the 
 C. C. P. 
 
 III. Defendant's bond. 
 
 IV. Writ of possession. 
 
 V. Trespass for mesne profits. 
 
 I. OF THE TITLE XECESSAEY TO SUPPORT THE ACTIOX. 
 
 1. It is well settled in this State that a vendee of land 
 ^ko enters upon it under a contract of purchase, is a mere 
 
136 EJECTMENT— I. 
 
 occupant at the will of the vendor, and that the latter may 
 at any time put an eud to such occupany by demanding 
 possession under a reasonable notice to quit : and that he 
 may then recover in ejectment. Twenty-live days' notice to 
 quit in such case is reasonable. Bntner v. Chaffin, Phil. L. 
 Ji. 497. 
 
 2. The state of the accounts between the parties in regard 
 to the purchase money does not affect the vendor's right to 
 recover possession at law, although it might affect his choice 
 of such a remedy rather than that of a bill for specific per- 
 formance in equity. Ibid. 
 
 3. An action of ejectment cannot be maintained upon a 
 demise laid on a day before the right of entry began; there- 
 fore, not by a vendor against his vendee (who lias failed to 
 comply with the terms of the contract,) upon a demise laid 
 upou a dav before the demand of possession. Guess v. Mc- 
 Cauley, Phil. L. R. 514 
 
 4. It seems that one day's notice to leave is not sufficient. 
 1 bid. 
 
 5. A mere occupier of land has no estate which upon 
 quitting possession he can transfer to another; and one who 
 goes into possession under such circumstances (without per- 
 mission of or recognition by the owner) is liable to be treated 
 by him as a trespasser, and to be ejected without a previous 
 notice to quit Young v. Perry, Phil. L. R. 549. 
 
 0. The rule that, in controversies between titles of differ- 
 ent dates which lap, actual possession of the lappagew required 
 to perfect the color of title of the junior claimant, applies to 
 controversies between the State and citizens who claim under 
 mesne conveyances which extend the boundaries of the 
 original grant. lleddriclc v. Gobble, Phil. L. R 348. 
 
 7. If the person who claims under the elder title have no 
 actual possession of a lappage, such possession, although for 
 a part only, by him who has the junior title, continued for 
 seven vears, will confer a valid title for the whole. Kerr v. 
 Elliott, Phil. L. R. 001. 
 
 8. In order to revest an estate which has been divested 
 by adverse possession under color of title, there must be an 
 open entry under claim of right, so as to give notoriety to 
 the matter. Ransom v. Lewis, 63 N. 0. R. 43. 
 
 9. Where a deed of trust is made to secure certain speci- 
 fied debts, one of which is tainted with usury, and a purch- 
 aser' buys at the trustee's sale, for valuable consideration, 
 and without notice of the illegality of the consideration of the- 
 
EJECTMENT— I. 137 
 
 said debt : held, that bis title is not affected thereby. McNeil 
 v. Riddle, 00 N. 0. R. 290. 
 
 10 If a deed contains a declaration of trust in favor of 
 several creditors, and one of the debts secured is feigned or 
 usurious, aud there be no combination between the creditors, 
 to whom the true debts are due, and the grantor or person 
 for whose benefit the feigned debt is inserted, there can be 
 no reason why the declaration of trust in favor of the true 
 debts may not stand, and the feigned debt be treated as a 
 nullity. Ibid 
 
 11. Where land was levied on, an execution issued on a 
 magistrate's judgment, and the said judgment, execution and 
 levy were returned iuto the County Court and confirmed, and 
 a ven. ex. was issued, and the land sold : held, that in an ac- 
 tion to recover possession of the land, it was not necessary to 
 show the justice's judgment and execution, but only the 
 judgment of the Court, the execution sale, and deed by the 
 Sheriff. Davis v. Baker, 67 N. R. 388. 
 
 12. A purchaser at a Sheriff's sale, as against the defen- 
 dant in the execution who withholds possession, is entitled to 
 recover as of course; and the debtor cannot justify his act 
 of refusing to give up the possession on the ground of the 
 title's being in a third person. Wade v. Saunders, 70 JS". C. 
 11 277. 
 
 13. In the old action of ejectment, the fiction of a "lease, 
 entry and ouster," was adopted merely for the sake of saving 
 the trouble and expense of making a lease and entry ; there- 
 f re, no lease can he set out in the declaration, which could 
 n >t have been made at the time the action was commenced, 
 McLennan v. McLeod, 70 N. C. R. 304. 
 
 14. The d^ed from a sheriff to the purchaser of land sold 
 under a ven ex., is evidence on a question of title, notwith- 
 standing there is endorsed on such ven. ex. a memorandum 
 that there was '' no sale for want of compliance." Maynard 
 v. Moore, 70 N. C R. 54(5. 
 
 15. Where the defendants, deriving title under a grant 
 dated in 1810, claimed up to a line from one point to another, 
 {■which line was established and agreed to by all parties,) ex- 
 ercising ownership by open and notorious acts, acknowledged 
 and acquiesced in by those now claiming adversely, since the 
 date of a grant in 1816, the plaintiff's claim to the locus in 
 quo extending to said line, is barred by the statute of limita- 
 tions. Clark v. Wagoner, 70 X. 0. B. 7<>0. 
 
 See (Abatement — By the death of parties, 9.) (Color of 
 Title.) (Possession.) 
 
1 38 EJECTMENT— II. 
 
 II. ACTIONS EOR REAL ESTATE UNDER C. C. P. 
 
 1. A suit to recover the possession of lauds is a civil action, 
 and not a special proceeding; therefore, the summons (by the 
 act of 1868-'69, oh. 76,) is returnable to the term, and uot 
 before the Clerk. Woodley v. Gilliam, 40 N. C. R. (Hi). 
 
 2. A civil action to recover the possession of lmd under 
 the new Constitution and Code of Civil procedure, abolishes 
 the fictitious proceedings of the old action of ejectment, but 
 does not surrender its advantages. Hence in such an action 
 no more is put in issue than the right of entry, or the right 
 to the present possession. This is so, at least, when no cer- 
 tain estate is alleged and claimed in the complaint, and put 
 in issue by the pleading. Quere, whether a judgment, Where 
 a certain estate is alleged and demanded, would be an estop- 
 pel between the parties as to the right to the estate alleged? 
 Harkey v. Houston, 05 K 0. R. 137. 
 
 3. Under the Code of Civil Procedure, sec. CI, a landlord 
 may be joined as a defendant with his tenant; and by the 
 act of 180<)-'7(), eh. 139, (Bat. Rev. ch. 17, sec. 382,) the teu- 
 ant and landlord thus defending most each give bond with 
 good security to pay costs and damages it the plaintiff recov- 
 ers, or if he be not able to give such bend, he must make affi- 
 davit of that fact, and get the certificate of an attorney prac- 
 ticing in the court that, in his opinion, the plaintif is not 
 entitled to recover. Ibid. 
 
 4. When the tenant fails to give such bond, or to swear 
 to his answer when the plaintiff has sworn to his complaint, 
 the plaintiff may take a judgment against him, but he cannot 
 have an execution against him, until the further order of the 
 court which will not be made until after the trial of the issues 
 between him and the landlord defendant, and the damages 
 against the tenant will be matter of enquiry on the trial of 
 such issue with the landlord, or separately as the court may 
 determine. Ibid. 
 
 5. In an action to recover the possession of real estate it 
 is sufficient to allege in the complaint, that the laud was in 
 the posssession of the defendant at the time of the issuing of 
 the summons, where the plaintiff alleges title to the tract des- 
 cribed, and that defendant is in possession of a part thereof, 
 without particularly describing that part. Johnson v. Nev- 
 ille, 05 N. C. R. 077. 
 
 0. A B and C, tenants in common, sell a tract of land to 
 D, reserving " to themselves the right to live in the dwelling 
 house upon said laud, and to use all necessary outhouses, and 
 
EJECTMENT— II.— III.— IV. 139 
 
 to cultivate so much of said land as they may need during 
 tbeir natural lives." A and 13 die, and the survivor, 0, sells 
 to E, who takes possession of all the tract not used by 0. 
 In a suit by D against E, to recover possession of the land 
 and for damages : held, that 0, the life-tenant, was properly 
 adnii t 'd to defend the action ; and that the said action for 
 the recovery of the land being commenced during the life- 
 time of C was premature, and could not be sustained. Ken- 
 nedy v. Johnson, 69 X. C. R 249. 
 
 III. DEFENDANT'S BOND. 
 
 1. A vendee who enters into possession of land under a 
 coutract of purchase and afterwards fails to pay the price 
 agreed upon, is not within the terms of the Rev. Code, c. 31, 
 s. 48, which require tenants to give bond before pleading in 
 •ejectment. Cox v. Gray, Phil. L. R. 488. 
 
 2. In an action to recover the possession of realty, the 
 Court has the power to allow the defendant to file a bond for 
 •costs, at the second term alter the answer has been riled ; 
 nor is it necessary that any of the defendants should sign 
 such bond. Wall v. Fair!;/, 66 N. (J K 335. 
 
 3. In an action for the recovery of possession of land, 
 •where the defendants riled their affidavit alleging they were 
 unable to give the bond required in eh. 193, sec. 1 1, Acts of 
 18G9-'70, and counsel certified that the plaintiff was not en- 
 titled to recover: held, to be error in the Judge below tore- 
 quire the defendants to give bond before they would be per- 
 mitted to defend said action. Jones v Fortune, 69 N. C. 
 R. 322. 
 
 IV. WRIT OF POSSESSION. 
 
 1. Under the writ of habere facias possessionem, it is the 
 practice for the plaintiff, at his peril, to point out the land 
 recovered to the Sheriff, who puts him in accordingly. 
 Johnson v. Neville, 65 N. C R. (577. 
 
 2. In actions to recover real estate brought against a de- 
 fendant in an execution by a purchaser at a sheriff's sale of 
 such property as the property of the defendant, in which a 
 party claiming to be the landlord of such defendant, is per- 
 mitted to defend, the plaintiff is entitled to judgment against, 
 the execution defendant, but cannot be permitted to take 
 out a writ of possession if he tails to recover against the 
 other defendant. Isler v. Foy, (i(> X. 0. R. 547. 
 
140 EJECTMENT-V.-ELECTION.-EM ANCIP ATIOST 
 
 V. TRESPASS FOR MESNE PROFITS. 
 
 1. Trespass for mesne profits cannot be maintained by 
 the lessor of the plaintiff in a previous ejectment, unless he 
 go into actual possession of the premises after their recovery 
 in such previous action. Standi v. Calvert, 63 N. 0. II. 016. 
 
 2. Neither confession of lease entry and ouster in the 
 previous action, nor the fact that pending such action the 
 plaintiff's interest in the premises was destroyed, affects this 
 rule. Ibid. 
 
 ELECTION. 
 
 When a testator directed, in his will, that " the marriage 
 contract be carried fully into effect," and in addition gives to 
 his wife other legacies : held, that a case of election is not 
 presented, as the wife does not claim under and against the 
 will, but under the will and the contract, which is made a 
 part of it. Morrison v. White, 67 N. 0- It. 253. 
 
 EMANCIPATION. 
 
 1. A question having been made whether one who, upon 
 a purchase of a slave at a sale by a clerk and master, had paid 
 cash instead of giving bond, as required by the order of sale, 
 could not be compelled to comply with that order; it was 
 held, that inasmuch as one incident to the relief sought would 
 be to give an option to the defendant to have the bidding 
 opened again, the iuteivening abolition of slavery rendered it 
 unnecessary to decide the question. Broughton v. Askew, 
 Phil. Eq. It. 21. 
 
 2. A testator, who died in 1864, by will dated in 1857, 
 gave their freedom to certain slaves; and then by subse- 
 quent clause also gave li to the above named liberated slaves" 
 property, both real and persona! : held, (Battle, J. dissenting,) 
 that the effeet ot the recent emancipation, such gift was 
 valid. Haley v. Haley, Phil. Eq It. 180. 
 
 3. Also, by the Court, the emancipation was the primary, 
 and the method thereof but a secondary, object with the tes- 
 tator. Ibid 
 
 4. Also, by Pearson, C. J., and Reade, ./., that waiving all 
 questions to the time and manner in which emancipation was 
 
EMANCIPATION. 141 
 
 effected, the testator, from the knowledge of the issue which 
 at the time of his death was notoriously involved in the result 
 of the war then existing, must now be presumed to have 
 intended that if such war resulted in emancipation the gifts 
 should take eflect, otherwise not. And, that such intention 
 was uot against any public policy which the state can now 
 recognize. And that the contingency was not too remote. 
 Ibid. 
 
 5. By Battle, J. that the Proclamation of President Lin- 
 <3olu could have no eflect in liberating slaves where they did 
 not come under the control of the armies of the United 
 States, as these did not until after the death of the testator. 
 Ibid. 
 
 (5. Also, that the phrase " liberated slaves," unexplained, 
 Include only slaves th.it were such at the death of the testator. 
 Ibid. 
 
 7. A legacy to slaves upon their future contingent eman- 
 cipation (provided for in the will) is not against public pol- 
 icy, even though a part of the funds so given is to be made 
 up of their own earnings. Whedbee v. Shannonhouse, Phil. 
 Eq. E. 283. 
 
 8. Where a will contemplated an emancipation coupled 
 with removal to Liberia or some such place, and provided a 
 certain fund to be used to cover the expenses of such removal 
 and also to supply clothing and implements of husbandry, and 
 and added that if any part of such fund were left, it should 
 be divided among the slaves emancipated, held, that as in the 
 event they were emancipated without a removal by the 
 results of the late war, such slaves were entitled to the fund 
 undiminished by expenses, &c. Ibid. 
 
 9. The will for emancipation having been defeated as to 
 a part of the slaves by the dissent of the widow: held, that 
 as the fund was bequeathed to the slaves as a class, those 
 who fitted the description at the time of division took it all 
 and there was no lapse. Ibid. 
 
 10. Semble, that the slaves who were reduced to their 
 former condition by the dissent of the widow are, as things 
 have turned out, entitled to a share of the fund. Ibid. 
 
 1 1. Where a man, at that time a slave, on the loth of 
 March, 1805, took possession of a mule abandoned as unser- 
 viceable by General Sherman's army which two days before 
 had occupied the part of the State: held, that the finder's 
 owner, who upon the 1 2th of March had "deserted" him, 
 acquired no title to such mule, as against him. Bale v. 
 Parser, 63 X. C. R. 131. 
 
142 EMANCIPATION.— EMBLEMENTS. 
 
 12. The Act of Congress, 1862, ch. 19. s. 9, (July 17tb) 
 is not unconstitutional, — the United States and the Confede- 
 rate States having been at that time "belligerents." Ibid. 
 
 13. In cases of parol gifts of slaves under our former laws, 
 the title to the slave vented in the donee subject to be di- 
 vested, and did not remain in the donor. Ibid. 
 
 14. Discussion, by Pearson, C. J., of the rights of the 
 owners of slaves to things found by the latter; also of the 
 peculiar and contingent condition ot slaves in North Carolina 
 between the period of military occupation by the army of the 
 United States, and that of the passage of the Ordinance of 
 Emancipation Ibid. 
 
 lo. Where by agreement between a slave and his owner, 
 certain notes belonging to the former were made payable to 
 the latter for the benefit of the former: held, that upon the 
 emancipation of the slave, the owner became a trustee for 
 him as to all such notes as were then in his hands. Latti- 
 more v. Dickson, 03 N. C. R. 35b*. 
 
 ]0. As to the time and the means of Emancipation. 
 Q u cere. Hid. 
 
 17. The Emancipation Proclamation of President Lin- 
 coln, and the Act of Congress of July, 1802, by their terms 
 operated only upon particular slaves, and did not affect the 
 institution of slavery; so also, the order of General Scho- 
 field, made after the surrender. Ilarrell v. Watson, 03 N. 
 C. E. 454. 
 
 18. The buying and selling of slaves in the ordinary course 
 of business, in North Carolina, in 1804, was then against 
 neither good morals, nor public policy ; and no retroactive 
 effect to that end can be attributed to the subsequent eman- 
 cipation of slaves, and abolition of the institution of slavery 
 by law. J bid. 
 
 EMBLEMENTS. 
 
 1. Parol evidence is competent to show that a crop of 
 corn, growing upon land at the time that the latter was con- 
 veyed by deed, did not pass by the deed, but was reserved 
 by the vendor. Fhjnl v. Conrad, Phil. L. It. 190. 
 
 2. Distinction in tins respect between fructus industrials 
 and fruit upon trees, &c, discussed and stated. Ibid. 
 
 3. Where the plaintiff in a suit for land at the Spring 
 Term of the Superior Court of a county recovers judgment 
 
EMBLEMENTS.— ENTRY.— ESTOPPEL— I. 143 
 
 and the defendant appeals, but gives an undertaking for the 
 costs only, and at the next ensuing term of the Supreme 
 Court in June, the judgment is affirmed, and then the. plain- 
 tiff takes out a writ of possession irom the Superior Court, 
 which is executed, he will be entitled to the crops growing 
 on the land for that year. ( ox v. Hamilton, 09 X C. R. 30. 
 
 ENTRY. 
 
 1. The lands granted to Henry MeCulloch in 1745, are 
 not liable to entry under the provisions of the Rev. Code, eh. 
 42, sec. 1. Hoover v. Thomas, Phil. L. R. 184. 
 
 2. A grant under an entry of such lands in 1822 is void, 
 and its invalidity may be shown upon question made in an 
 action ot ejectment. Ibid. 
 
 ESTOPPEL. 
 
 I. By record. ! H« In 'pais and by deed. 
 
 I. BY RECORD. 
 
 1. No estoppel of record is created against one not a 
 party to the record, even though he had instigated the tres- 
 pass, oo account of which the action was brought, aided in 
 the defence of the action, employed counsel, introduced his 
 deeds in evidence and paid the costs, and though he and the 
 present defendant claimed by deeds under the present tres- 
 passer. Falls v. Gamble, GO N. C. R. 455. 
 
 2. The principle of estoppel by record, by whicb an end 
 is put to litigation, and parties and privies are concluded, 
 and cannot be heard to make averment contrary to the find- 
 ing of a jury, fixed by judgment in regard to a fact precisely 
 put in issue, underlies and is acted upon in all modes of pro- 
 cedure, and while, under our present system the complaint 
 and answer are usually so difluse that an issue is seldom 
 joined, with a precision, which is required to work an estop- 
 pel ; yet when the complaint avers title in the plaintiff, the 
 answer admits possession, denies the title of the plaintiff, and 
 sets up title in the defendant, a verdict and judgment will 
 conclude the parties and privies in respect to the title as 
 completely as a verdict and judgment in the old action of 
 
144 ESTOPPEL— I.— II. 
 
 trespass quare clausvm /regit, where the only plea was 
 liber urn tenementum. Ibid. 
 
 3. The action for land under the 0. 0. P. differs, in this 
 respect from the old action of ejectment, in which the parties 
 are changed, and there is no estoppel because of the general- 
 ity of the pleading; in this, in an action for land the defend- 
 ant, if he does not intend that his action shall try the title, 
 should merely allege that he is entitled to the possession, 
 and that the defendant withholds it, and so if the defendant 
 does not wish the title concluded by the action, should merely 
 deny the allegations in the complaint so as to make his 
 answer, in effect, a plea of " not guilty." 1 bid. 
 
 II. IN PAIS AND BY DEED. 
 
 1. A fictitious sale of a horse to prevent it from being im- 
 pressed by the Confederate government, will not estop the 
 owner from afterwards asserting his title thereto. Lutz v. 
 Yount, Phil. L. R. 367. 
 
 2. The rule that tortfeasors cannot dispute the title of him 
 from whose possession they take the thing in dispute, does 
 not apply where they are sued by such person iu trover. Rose 
 v. Coble, Phil. L. R. 517. 
 
 3. A false representation not acted upon by him to whom 
 it is made, does not estop. State v. Thomas, 04 N. 0. R. 83. 
 
 4 Where one of two executors had informed creditors of 
 his that certain cotton in a warehouse belonged to him, and 
 thereupon they attached the same for a debt due by him : 
 held, that such executors upon interpleading, were not estop- 
 ped by the declarations made as above. Beckham v. Witt- 
 kowski, 64 N. C. R. 646. 
 
 5. One who has, and knows he has title to property, who 
 is present at a sale of it as the property of another, and who, 
 when it is publicly announced before the bidding commences, 
 that all persons claiming the same are requested to make 
 known their claims, remains silent is estopped afterwards from 
 setting up his title against a purchaser at said sale. Ma- 
 son v. Williams, 66 N. 0. R. 564. 
 
 6. Oue who accepts a deed for property, and claims and 
 acts under it, knows all the facts constituting title, and in- 
 tends to hold under it if he can, has such knowledge as the 
 law intends by that term, and every reason applies why it 
 should be disclosed, which applies in the very rare case 
 of absolute knowledge that the title is good. Ibid. 
 
 7. There is a qualification of the rule to the extent, that 
 
ESTOPPEL— II. 145 
 
 the true owner must mean for the purchaser to act upon his 
 representations, but one comes within this qualificatiou even, 
 who, by his conduct, whether it be fraudulent and malo animo 
 or simply negligent and oinissive, gives others reasonable 
 ground to believe that he has no claim (for in this connection 
 title and claim are synonymous) to the property, and such 
 others do so believe and act on such belief. Ibid. 
 
 8. Not only the uberrima fides but that simple bona fides 
 which the law exacts from every man, required the true own- 
 er to mate known his claim at said sale or never ; he should 
 have given all bidders the advantages he possessed from his 
 exclusive knowledge, his omission to do so amounted to a 
 negligence which imperilled the interests of others and gave 
 him an unfair advantage over them, enabling him, if he could, 
 to buy low, and thereby secure an indisputable title, or, if 
 another out-bid him, t<> fall back on his reserved claim. 1 bid. 
 
 1*. The registry of the plaintiff's title did not, per se, oper- 
 ate as notice to the purchaser. Ibid. 
 
 10. One claiming under a deed is not estopped by it, to 
 show that his bargainor did not have title at a time anterior 
 to the delivery ot his deed. Frey v. Bamsour, 60 N. 0. R. 46b*. 
 
 11. No estoppel arising from a sheriff's deed is fed by an 
 after acquired interest — hence when A had no title to land 
 sold under execution as his property, so that nothing passed 
 at the time by such deed, one who afterwards takes a deed 
 trom the defendant in such execution is not estopped to show 
 that in fact his vendor had no title at the date of the execu- 
 tion sale. Ibid. 
 
 12. Neither is such second vendee estopped to show want 
 of title as above stated by any rule of practice ; as the rule 
 that when both parties claim under the same person, neither 
 shall be permitted to deny his title has been adopted for the 
 purpose of aiding the administration of justice by dispensing 
 with the necessity of requiring the proof of original grants 
 and mesne conveyances, and after the rule has effected this 
 purpose it is functus officio, and the matter is then open in 
 regard to the title subject to the doctrine of estoppel, and 
 such other principles as may be applicable. Ibid. 
 
 13. The rule is, that when one, by his conduct, uninten- 
 tionally, gives another reasonable ground to believe that a 
 certain state of facts exists and the other acts on the belief 
 so induced, that he will be damaged if it is not true, the 
 person so inducing is estopped as to the other, afterwards to 
 deny the existence of such a state of facts Miller v. The 
 Land and Lumber Company, GO N. 0. K. 503. 
 
 10 
 
146 
 
 ESTOPPEL— IL— EVIDENCE— I. 
 
 14. A bidder for laud sold under an execution in his- 
 favcr, and who received the proceeds of such sale, is not 
 thereby estopped from showing in a subsequent and different 
 proceeding, that the laud belonged to some one else other 
 than the defendant in his execution. Wade v. Saunders, 70 
 N. C. E. 70. 
 
 See (Agent and Principal — Of the liability of an agent for 
 the acts of his principal.) (Covenant 7.) (Notice 2.) 
 
 EVIDENCE. 
 
 I. 
 
 Its competency or incompetency. 
 
 XIII. 
 
 II. 
 
 How witnesses are to be ex- 
 amined. 
 
 XIV. 
 
 III. 
 
 Impeaching the credibility of 
 
 XV. 
 
 
 witnesses. 
 
 XVI. 
 
 IV. 
 
 Depositions. 
 
 XVII. 
 
 V. 
 
 Hearsay and common reputa- 
 
 
 
 tion. 
 
 XVIII. 
 
 VI. 
 
 Experts and others f xpressing 
 
 
 
 opinions. 
 
 XIX. 
 
 VII. 
 
 Proof of the character of a 
 
 
 
 party. 
 
 XX. 
 
 VIII. 
 
 Its relevancy or irrelevancy. 
 
 
 IX. 
 
 Parol evidence, when admissi- 
 ble. 
 
 XXI. 
 
 X. 
 
 Admissions, declarations and 
 acts of parties and privies. 
 
 XXII. 
 
 XL 
 
 Public documents. 
 
 XXIII. 
 
 XII. 
 
 1! (-cords of court and records 
 and by-laws of corporations. 
 
 
 Proof of official bonds. 
 
 Books of entries, accounts, 
 receipts, orders, &g. 
 
 Confessions. 
 
 Dying declarations. 
 
 In criminal proceedings and. 
 indictments. 
 
 In cases relating to wills and 
 
 testaments. 
 When evidence is or is not 
 
 required. 
 On whom is placed the bur- 
 den of proof. 
 When the jury is to decide 
 upon its effect. 
 
 Who to decide upon its com- 
 petency. 
 
 Grounds of objection to evi- 
 dence to be stated. 
 
 I. ITS COMPETENCY OR INCOMPETENCY. 
 
 1. Evidence to show that a tract of land of a particular 
 description in a will include another tract having another 
 description in such will, is competent. Brandt v. Hunter? 
 Phil. L. P. 1. 
 
 2. Evidence that one in possession of a tract of land de- 
 clared that he held it as tenant of a certain person, is admis- 
 sible, even although it be shown that such tenancy was crea- 
 ted by a written instrument which is not produced. Thomp- 
 son v. Matthews, Phil. L. R. 15. 
 
 3. Previously to the act of 1866 in relation to evidence, the 
 relator in an action brought in the name of the State, was not 
 competent as a witness. State v. Mangum, Phil. L. 11. 177. 
 
EVIDENCE— I. 147 
 
 4. In an action of trespass for a violent assault and bat- 
 tery, evidence that two weeks before, one of the defendants 
 (who are brothers) had been beaten by the plaintiff, is not 
 competent; nor is it competent to show that several hours 
 before on the same day, the plaintiff had threatened to beat 
 one of the defendants, and that such threat had been com- 
 municated to the defendant. Johnston v. Crawford, Phil. 
 L. R. 342. 
 
 5 A record of a conviction, and of the payment of the 
 fine and costs incurred under an indictment for an assault 
 and battery, is admissible in mitigation of punitory damages 
 in a civil action for the offence. Ibid. 
 
 0. In estimating damages in such actions, the jury can 
 take no notice of a sum of money paid into court for the use 
 of the plaintiff at a former term upon leave granted, the plain- 
 tiff having refused to receive it. Ibid. 
 
 7. A question having arisen in the course of a trial as to 
 an arrangement in regard to a horse which was the subject 
 of controversy : held, that evidence of a similar arrangement 
 at the same time between the parties in regard to a cow was 
 relevant, either as part of the res fiesta?, or as part of the con- 
 versation and thus showing the entire arrangement. Lutz 
 v. Yount, Phil L R. 3G7. 
 
 8. Where one had been induced to remove from Tennes- 
 see and come to this State by a promise of employment and 
 other pecuniary advantage, and after doing so he and the 
 person who made the promise (his sister) quarrelled, he in- 
 flicted a battery upon her, and she refused to comply with her 
 engagement: held, upon a reference of their "matter in dis- 
 pute," the sister had a light to introduce testimony as to the 
 battery, for the consideration of the referee. Walker v. 
 Walker, Phil. L. R. 545. 
 
 9. The act (Rev. Code, ch. 107, sec 71,) which renders 
 persons of color incompetent as witnesses in certain cases, is 
 repugnant to the Constitution, and is repealed thereby. 
 State v. Underwood, 63 N. C. R. 98. 
 
 10. One who is under sentence of death for a felony, is 
 neverthless competent as a witness. Ibid. 
 
 11. To show the disposition of a witness towards the 
 prisoner, he may be asked whether he had not heard that 
 the prisoner had been a witness against him for the same 
 offence. State v. Harston, b*3 N. 0. R. 294. 
 
 12 Where a witness stated, in reply to the question 
 whether the prisoner had not been sworn against him, — that 
 lie had not heard him examined, but had heard that the 
 
148 EVIDENCE— I. 
 
 prisoner was a witness, and swore against him : held, Pear- 
 son, C. J., dubitante, that the latter part of the answer was 
 sufficiently responsive, to render it regular lor the prisoner 
 to object to the ruling of the court Upon its competency, 
 without any further examination upon his part Ibid. 
 
 I'd. Under the Act of 1800, ch. 43, a wife was not a com- 
 petent witness for her husband. Rice v. Keith, 03 lN". 0. E. 
 31V). 
 
 14. It is now otherwise, under the Code of Civil Proce- 
 dure, sec 341. Ibid. 
 
 15 An administrator, upon an issue in regard to assets, 
 cannot testify to a transaction betwixt himself and his intes- 
 tate, whereby a prima facie indebtedness of his own to the 
 estate, was discharged ; he may, however, testily as to trans- 
 actions by himself after the death which relieve him from the 
 charge of having assets in hand. Whitendes v. Green, 04 
 N. O. R, 307. 
 
 10. The plaintiff in a suit is (by O. C. P , sec 343) incom- 
 petent to prove that the intestate of the defendant actually 
 signed a particular paper, although he is competent to prove 
 his hand-writing. Peoples v. Maxwell, 04 IS". C R. 313 
 
 17. What was once said by the plaintiff to the adminis- 
 trator, in relation to acts or words of the deceased, (intro- 
 duced to get the benefit of admissions, deducible from a 
 failure to deny, by the administrator,) when such acts or 
 words were not within the personal knowledge of the admin- 
 istrator, — is also incompetent. Ibid. 
 
 18. The exception to the rule allowing parties to testify, 
 i. e., as to transactions between such party and a person 
 deceased ; does not extend to cases where a defendant is 
 offered as a witness to testify that a bond which was given 
 to a person deceased, and which is the subject matter of the 
 suit, was in blank as to the amount payable when executed 
 by him; having been filled up afterwards in his absence, and 
 without due authority. Isenhour v. Isenhour, 04 N. C. R 040. 
 
 19. Evidence by a party, that when a bond was executed 
 and placed in the hands of on agent for negotiation, it was 
 in blank as to the name of the obligee, and that the agent 
 Lad no proper authority for filling such blank, is not, — such 
 obligee being dead at the time of the examination, evidence 
 of a transaction, Ssc, with a deceased person, &c, within 
 the terms of the C. C P., s. 343, excluding evidence by par- 
 ties, in regard to such transactions, &c. Brower v. Hughes, 
 04 KT. C. R. 042. 
 
 20. Whether a witness offender years has sufficient iutel- 
 
EVIDENCE— L ] 19 
 
 Hgence and sense of the obligation of an oath to be compe- 
 tent, is a matter within the discretion of the Judge who pre- 
 sides at the trial, and therefore, cannot be received upon 
 appeal. State v. Manuel, 64 N. C R. 601. 
 
 581. Where Ithe testator of the plaintiffs and the defen- 
 dant went, in the lifetime of the testator, to a third pei 
 and had a conversation with him in relation to the subject of 
 the controversy, and at the trial both the testator and the 
 said third person were dead, it was hr/rf, that according to 
 the true intent and meaning of the proviso to the 343d 
 of the Code of Civil Procedure, the defendant could not tes- 
 tify to the conversation between the testator and such third 
 person. Hattyburton v. Dobson, 65 X. C tt. 88. 
 
 22. Though a plaintiff could not be admitted as a witn< 
 under the C 0. P., sees. 342 and 343, to prove a special con- 
 tract with the intestate of the defendant for the service of 
 slaves before their emancipation, yet be is competent to 
 prove that I he intestate had the slaves in possession and 
 enjoyed their services. Gray v. Cooper, 63 X 0. K. 183. 
 
 23. When the administrator of an intestate asks of the 
 plantiff, who had offered himself as a witness, whether there 
 was not a special contract between himself and the intestate, 
 with the view to defeat a recovery on an implied contract, it 
 i- competent for the plaintiff to prove by himself, or by 
 another witness, all the particulars going to make up or 
 qualify such fact, and put it in its proper light Ibid. 
 
 24. When a defendant in a civil action offered in evidence, 
 ;t- ;i counterclaim to plaintiff's demand, a note bearing date 
 in October, 18o2, and himself as a witness to rebut the pre- 
 sumption of payment: held, that under the act of 1800, he 
 was a competent witness for the purpose. Albright v. Al- 
 hright, 07 X. C R/27. 
 
 25. A plaintiff is not a competent witness to prove any 
 transaction between himself and his deceased guardian; but 
 he is competent to prove any other transaction of his guar- 
 dian ; e. (j , a sale of his property by his guardian. Dobbin 
 v. Osborne, 07 X. 0. J: 259. 
 
 20. Under the act of 1868-'69 ch. 209, sec. 4, the wife is 
 a competent witness against her husband "as to the (act of 
 abandonment, or neglect to provide adequate support." She 
 is not, however, a competent witness to prove the fact of 
 marriage. State v. Brown, 07 X. R. 470. 
 
 27. In a suit for the recovery of a negotiable note indor- 
 sed, the evidence of an administrator, (the plaintiff,) is ad- 
 missible to prove that his intestate bought the note, and 
 
150 EVIDENCE— I.— 1 1. 
 
 gave therefor full value. Andrew's, Adm r r., v. McDaniel, 68 
 K 0. R. 385. 
 
 28. Iu action against a surety on a constable's bond, 
 alleging certain breaches of the condition .of the bond by the 
 constable, now dead, the plaintiff is not a competent witness 
 to prove any transaction or conversation between himself 
 and such deceased constable in regard to the matters in 
 controversy. State dc Bryant v. Morris, 69 N. 0. E. 444. 
 
 29. When a party to a suit, who is in interest really a 
 plaintiff, but appears as a party defendant, gives evidence as 
 to a transaction with a deceased testator, it renders compe- 
 tent the evidence of a co-defendant, touching the same trans- 
 action as provided for by sec. 343, 0. C. P. Redman v. 
 Redman, 70 N. C R. 251. 
 
 30. If the declaration of a testator made in his life-time, 
 not in the presence of the defendant, could not be given in 
 evidence, because of his not being permitted to make evi- 
 dence for himself, his administrator will not be allowed to 
 prove such declaration after his death. Ibid 
 
 31. At common law, neither the husband nor the wife is 
 allowed to prove the fact of accessor non-access; and as 
 such rule is founded "upon decency, morality and public 
 policy," it is not changed by chap 43, sec 15, Bat. Rev., (0. 
 O. P., sec. 340,) allowing parties to testify in their own be- 
 half. Boykin v. Harris, 70 N. 0. R. 262. 
 
 See (Bastardy 1, 9, 14.) (Evidence — Its relevancy or 
 irrelevancy 4 ) (Evidence — In Criminal Proceeding and 
 Indictments 2, 3, 4, 9, 3i, 30, 37, 38, 41, 42, 44, 45, 48, 
 49.) 
 
 II. HOW WITNESSES ARE TO BE EXAMINED. 
 
 1. Where a defendant, examined in his own behalf, was 
 asked what conversation he had with a witness examined for 
 the plaintiff, and the testimony of that witness was repeated 
 to him ; held, not to be objectionable as leading. Peg ram v. 
 Stoltz, 70 N. C. R. 144. 
 
 2. The court will not review the discretion of a Judge in 
 allowing leading questions, under certain circumstances, 
 unless error or abuse plainly appears Ibid. 
 
 3. A defendant who offers himself as a witness iu his 
 behalf, may be asked if he has not disposed of his property 
 so as to avoid the payment of any recovery iu the action than 
 being tried ; aud if since such disposal he has not been 
 engaged in selling the same property, and his answers are 
 
EVIDENCE— II.— III. 151 
 
 proper subjects for comment before the jury. Lasssiter v. 
 Phillips, 70 N. C. R. 402. 
 
 4. It is also competent to ask such witness if he had not 
 gone to New York to consult a spiritualist in regard to the 
 money, the subject of the present controversy. Ibid. 
 
 III. IMPEACHING THE CREDIBILITY OF WITNESSES. 
 
 1. Where an imputation against the character of a wit- 
 ness is made by the very question which is put to him, evi- 
 dence in support to that character becomes competent. 
 State v. Cherry, 63 N. C R. 493. 
 
 2. A witness called merely to sustain or impeach the 
 character of another witness in the cause, may himself be 
 either impeached or sustained. Ibid. 
 
 3. If, upon the cross-examination of a witness, he is asked 
 .as to collateral matters, and is examined as to particulars 
 not presented by the issues, the party is bouud by the answer, 
 and will not be allowed to go into evidence aliunde, in order 
 to contradict the witness. Clark v. Clark, 05 N. 0. R. 
 
 055. 
 
 4. It is settled, that a witness, who swears to the gene- 
 ral bad character of another witness, may, upon cross-exam- 
 ination, be asked to name the individuals who had spoken 
 disparagingly of the witness and what was said. This is 
 every-day practice. There is a difference between an exam- 
 ination in chief and a cross-examination, when the party 
 endeavoring to sustain the witness, whose general character 
 is attacked, may go into particulars as to the person, and 
 what they said. State v. Perkins, 00 N. 0. R. 120. 
 
 5. When a witness was called, to impeach the character 
 of another witness, and stated that he'did not know the gen- 
 eral character of said witness, he ought to have been told to 
 stand aside. Counsel have no right to cross-examine their 
 own witnesses. Ibid 
 
 0. To disparage a witness, on cross-examination, he may 
 be asked and required to answer almost any question, unless 
 the answer may subject him to indictment, or to a penalty 
 under a statute. State v. Davidson, 07 N. C. R. 119. 
 
 7. Therefore,' ou a trial of A for murder, after sever- 
 ance in an indictment against A, Band C; held, that B, who 
 having previously been convicted was examined as a witness 
 for the State, might be asked by the defendant's counsel, for 
 the purpose of contradicting him, whether he did not say to 
 the counsel of C, while conversing with him, in jail, "that he 
 
152 EVIDENCE— III.— IV— V. 
 
 was sorry A and C were put in jail for Lis devilment, &c."" 
 Ibid. 
 
 8. A witness is not competent to testify as to the gen- 
 eral character of another witness, simply because he had 
 known him several years, when the question is asked with- 
 out explanation, and without the preliminary question, 
 whether he knew the general character of the witness, and 
 the means by which he had acquired the knowledge. State 
 v. Speight, 09 K C. E. 72. 
 
 9. A plaintiff, who, as a witness, relates a conversation 
 he had with the defendant, which is by the defendant contra- 
 dicted in a material particular, can corroborate his testimony 
 by showing by another witness that he made substantially 
 the same statement to that witness, soon after the conversa- 
 tion occurred, as he made on the trial. Bullinqer v. Marshall^ 
 70 K 0. E. 520. 
 
 See (Evidence— In Criminal Proceedings and Indictments, 
 1, 18, 19, 24, 25, 26, 5*.) 
 
 IV. DEPOSITIONS. 
 
 1. Where a deposition was found among the papers, with 
 a commission unattached, and an envelope which appeared 
 to have been sealed up and afterwards broken open: held, 
 that this was sufficient evidence to justify the clerk in finding, 
 that the deposition had been taken under such commission,, 
 and had been returned to him sealed up by the commission- 
 er; and therefore that the clerk had done right in passing 
 upon and allowing such deposition to be read. Hill v. Bell, 
 Phil. L. E. 132. 
 
 2. It is too late to object to the reading of a deposition 
 after a trial has begun, merely on account of irregularity in 
 the taking of it, provided, it shall appear that the party ob- 
 jecting had notice of its being taken, or had notice that it had 
 been taken and was on tile long enough before the trial to 
 enable him to present the objection. Carson v. Mills, 69 N. 
 C. E. 32. 
 
 V. HEARSAY AND COMMON REPUTATION. 
 
 1. The exceptions to the general rule excluding hearsay 
 evidence, do not embrace the declarations of a deceased per- 
 son as to the boundary lines of land where such person was 
 in possession as owner at the time the declarations were 
 made. Heel rick v. Gobble, 63 X. L. E. 48. 
 
EVIDENCE— V— YI. 153 
 
 2. A mere collateral declaration as to a past transaction 
 is not admissible as part of the res yestce ; therefore, where 
 one whilst engaged in renting a store room, and arranging 
 for removing goods thereto, stated that " he had bought 
 some goods from Mr. Haywood :" held, to be admissible. 
 Decries v. Haywood, 63 N. 0. R. 207. 
 
 3. There is an exception to the general rule against hear- 
 say evidence, by which a matter of general interest to a con- 
 siderable class of the public, may be proved by reputation 
 among that class : therefore, it is competent for a witness to 
 state the price of cotton, from information received through 
 commercial circulars, prices current and correspondence and 
 telegrams from his factor. Smith v. N. C. R. R. Co., 68 
 N. 0. R. 107. 
 
 4. A sues B for assisting C to remove from the State, 
 alleging such removal to have been for the purpose of de- 
 frauding C's creditors, of whom A was one ; the declaration 
 of 0, contained in a letter to A. is not evidence against B, 
 unless the complicity of B and be established aliunde, and 
 such declarations cannot be received to prove such complicity. 
 Bryce v. Butler, 70 N. 0. R. 585. 
 
 5. Because the presiding Judge, after objection, permit- 
 ted the plaintiff to read the body of a letter which was un- 
 important and irrelevant, is no reason that he should permit 
 the reading of the postcript which was relevant, upon the 
 ground that when part of a declaration is received as evidence, 
 the party is entitled to have the whole thereof go to the jury. 
 Ibid. 
 
 VI. EXPERTS AND OTHERS EXPRESSING OPINIONS. 
 
 1. A persou tendered as a witness to express an opinion 
 whether the symptoms attending a diseased mule were recent 
 or otherwise, upon preliminary examination, stated that he 
 was a physician of eleven years standing, and that although 
 he had no particular knowledge of the diseases of stock, yet 
 from his books, observation and general knowledge of the dis- 
 eases of the human family, he could tell whether certain symp- 
 toms indicate that the disease is recent or otherwise; and 
 although he never saw a case of glanders (unless the one in 
 question were such,) yet he was able to form an opinion 
 whether the symptoms of the mule, indicated a disease of re- 
 cent or of long standing: held, that he was a competent wit- 
 ness for the purpose indicated. Jlorton v. Green, 64 N. 0. 
 R. 64. 
 
154 EVIDENCE— VI.— VII— VIII. 
 
 2. The opinion of an expert, as to cause of death, is com- 
 petent evidence for the State. State v. Jones, 68 N. 0. R. 443. 
 
 3. A witness may be allowed to express his opinion as to 
 the state of mind of another witness during certain periods ; 
 and it is not necessary that such witness should be an expert 
 or a physician. State v. Ketchley, 70 N. 0. R. 621. 
 
 See (Evidence — In cases relating to Wills and Testaments, 
 3.) (Evidence — In Criminal Proceedings and Indictments, 
 32.) (Rape, 3.) (Witness) 
 
 VII. PROOF OF THE CHARACTER OF A PARTY. 
 
 In an action against several co-obligors to a bond in 
 which one only pleads non est factum, it is not competent for 
 the plaintiff on the trial of the issue with him to prove that 
 he and another of the obligors were strong personal friends, 
 and it is also incompetnt for the plaintiff to prove that all the 
 co-obligors of the contesting defendants were men of good 
 character. HeilUj v. Dumas, do N. C. Ii 214. 
 
 VIII. RELEVANCY AND IRRELEVANCY. 
 
 1. Where the defendant gave a receipt to the plaintiff for 
 all the fishing materials, and "apparatus owned by W. & H.," 
 it is competent for plaintiff to show that defendant represent- 
 ed that all of said seine, &c, was at a particular place, as 
 such evidence tends to show where plaintiff' was to receive 
 the articles purchased. Wilson v. Holley, (Hi N. C. R 407. 
 
 2. Where, in an action upon a note for tue lease of land, 
 one of the plaintiffs is introduced as a witness, and it is pro- 
 posed to ask him whether he did not know the purpose of the 
 lease: held, that such question is immaterial, as it could make 
 no difference whether lb ) plaintiff's knew, or did not ki o v the 
 purpose of the lease. McKesson v. Jones, 66 N. C. H. 258. 
 
 3. When a deed of trust was attacked for fraud, and the 
 trustor was offered as a witness, to prove that there was an 
 agreement between him and the trustee, that the latter should 
 hold the property conveyed until the trustor should be able 
 to pay the debts secured from other source : held, that the 
 evidence should be permitted to go to the jury for what it 
 was worth, lsler v. Dewey, 67 N= C Ii. 93 
 
 4. In such case, the trustee having died and the property 
 having been conveyed by a substituted trustee to the defen- 
 dants, the trustor is not excluded by sec. 353, 0. C. P., from 
 being a witness for the plaintiff, who also claimed title through 
 Lim. Ibid. 
 
EVIDENCE— Till. 155 
 
 5. Where a witness was examined to prove that a Rail- 
 road Company had failed to deliver, to another Company, 
 four bales of cotton according to its undertaking, it was not 
 competent for said witness to state the conclusion to which 
 he had come, by a comparison of the receipts given by the 
 latter Company for a week's shipment, and the books kept 
 by the plaintiff in the action. McCombs v. N G. B. E. Co., 
 ij" ST. C. R. 193. 
 
 0. To avail himself of error in the rejection of evidence, a 
 party must show distinctly what the evidence was, in order 
 that the relevancy may appear, and that a prejudice has 
 arisen to him on account of its rejection. State v. Pur die, 
 iil N. 0. JR. 326. 
 
 7. Evidence that the grantee in a certain deed, which is 
 impeached for fraud, and who afterwards conveyed the land 
 to his step-daughter, the wife of the grantor, in consideration 
 "of love and affection," attempted before that time to pur- 
 chase for his step-daughter another house and lot, is not ad- 
 missible for the purpose of establishing that the deed to him- 
 self was bona fide and for a fair consideration. McCullock v. 
 Doa\ and Wife, 08 N. C. R. 207 
 
 8. "Tax lists" are not admissible for the purpose of 
 proving the truth of facts therein set out. "Tax lists" as 
 an independent tact, when relevant, are admissible as evi- 
 dence of such fact; and in repelling a charge of fraud rest- 
 ing, among other circumstances, on the allegation that the 
 pretended price paid for a tract of land exceeded very much 
 its value, it is competent to prove the fact that it was entered 
 at a certain value on the " tax lists." CardweU, adrn'r., v. 
 Mebane et al, 08 N. C. R. 485. 
 
 9. Evidence of the friendly feeling existing between two 
 of the joint obligors of a bond, offered for the purpose of 
 proving that one of them, who denied the fact, signed the 
 same, is inadmissible. Heileij v. Dumas, et al, 07 3S. C. R. 200. 
 
 10. Proof without allegation is as ineffective as allegation 
 without proof: hence, the court cannot take notice of any 
 proof unless there be a corresponding allegation McKtev. 
 IAneberger, 0!) N. C. R. 217. 
 
 11. Evidence of a distinct, substantive offence cannot be 
 admitted in support of another offence. State v. Shnford, 
 09 N. C. R. 480. 
 
 12. In an action, brought to subject certain lands (pur- 
 chased by defendant,) to the operation of an alleged verbal 
 tinst, to set up which it is material that all of certain parties 
 contributed to the payment of the debt charged upon the 
 
156 EVIDENCE— IX. 
 
 land, evidence tending to show that one of such parties paid 
 nothing towards said debt, and claimed no interest in the 
 land, is material and admissible, and that his Honor erred in 
 excluding it on the trial below. Taylor v. Dudley, 70 
 N". 0. R. 146. 
 
 IX. PAROL EVIDENCE WHEN ADMISSIBLE. 
 
 1. Where a bond for money does not profess to set forth 
 the other terms of the contract in the course of which it was 
 given, parol evidence is cempetent to establish them : 
 Woodfin v. Sluder, Phil. L. R. 200. 
 
 2. Therefore, where proclamation was made at a hiring by- 
 executors in January, 18'j5, that such money would be 
 received as would pay the debts of the estate, reference being 
 made specially to a bank debt, held, that although no allu- 
 sion to this was contained in the bonds given for such hires, 
 it was competent for the obligors to show the proclamation, 
 and also the market value of the notes of the bank. Ibid. 
 
 3. The fact that the officers of a corporation make a con- 
 temporaneous minute, in writiug, for their own information, 
 of a parol contract, in the absence of the other party, does 
 not render oral evidence by that party of the terms of such 
 contract, incompetent. Broivn v. Washington, 63 1ST. C. R. 
 514. 
 
 4. A description in a deed, of the lands therein conveyed, 
 as u 752 acres of land, including the land I now live on, and 
 adjoining the same," is too vague to convey more than the 
 lands lived on; and, in a case where the grantor owned much 
 more than 752 acres of land '' adjoining," cannot be aided by 
 parol evidence of what was the specific land intended to be 
 conveyed Robeson v. Lewis, 64 N. 0. R. 734. 
 
 5. Where a grantor, (defendant,) testified without objec- 
 tion, as to what was 7m intention in using the terms of des- 
 cription applied to the land in the deed, and upon cross- 
 examination denied that he had ever said the contrary, and 
 the plaintiff was allowed, after objection, to prove that he 
 had previously said the contrary; held, that it was error to 
 allow any part of his testimony, even that unobjected to, to 
 go to the jury ; what is a muniment of title being a matter of 
 law simply. Ibid. 
 
 6. When a witness for the plaintiff spoke of a compro- 
 mise, which was in writing, of a lawsuit between the plaintiff 
 and a third person, in regard to certain cotton in controversy, 
 it was not erroneous to permit the witness without producing- 
 
EVIDENCE— IX. 157 
 
 the written agreement, to state that in the compromise the 
 •cotton was tinned over to the plaintiff; the matter being 
 wholly collateral and between other parties, and in which 
 defendant had no interest. Oates, Williams A Co., v. Ken- 
 dall, 07 N. C. II. 241. 
 
 7. Parol evidence is admissible to explain a receipt, given 
 by an agent of an Insurance Company, for the premium on a 
 policy of Insurance against loss or damage from tire. Fere- 
 bee v. JV. C. Home Insurance Co., 08 N. 0. R. 31. 
 
 8. When the contents of a writing come collaterally in 
 question, such writing need not be produced, bnt parol evi- 
 dence to its contents will be received. Pollock v. Pollock et 
 <(!., 08 N. C K. 40. 
 
 9 Where two notes, a part of the consideration in the 
 purchase of a tract of land, had been destroyed by the payer 
 after a settlement, in the usual course of business: held, that 
 such need not be produced on a trial, impeaching the consi- 
 deration of the deed for fraud, and that parol testimony of 
 their contents was properly allowed. Quere, As to the admis- 
 sibility of the evidence, if the notes had not been lost? Ibid. 
 
 10. The contents of a writing, which it it ever existed, has 
 been lost or destroyed, and which cannot be found after dili- 
 gent search, may be proved by parol. Smith & Melton v. 
 N. C. B. B. Co., 08 N. C. R. 107. 
 
 11. To establish the weight of 19 bales of cotton burned 
 on defendant's Railroad, it is competent for a witness to state 
 the average weight of the lot of 33 bales, of which the burned 
 bales were a portion, and thus fix the weight of the 19 bales 
 by approximation. Ibid. 
 
 12. Where the suit is between a member of the firm and 
 a stranger, and the terms of the partnership which are in 
 ■Writing is not the question at issue, but comes up collateral- 
 ly, it is not necessary to introduce the witness. Brem v. Al- 
 lison, 08 K C. II. 412 
 
 13. It is competent to prove by parol, the consideration 
 of a written promise to pay inonev, at least when none is re- 
 cited. Perry v. Hill, 08 N. C. R. 417. 
 
 14. When there is an entire verbal agreement,. and a note 
 given and read in evidence was only a part of said agreement, 
 it is competent to prove such agreement by parol, notwith- 
 standing such note. Ibid. 
 
 15. The rule that when a contract has been reduced to 
 writing, no evidence of its contents is admissible except the 
 writing itself, is confined to contracts, and does not extend 
 to receipts on the payment of money, unless they contain 
 
158 EVIDENCE— IX.— X. 
 
 something more, so as to amount to contracts. Miller v. 
 Dsrr, 69 N. 0. E. 137. 
 
 See (Constitution, 45, 65.) (Emblements ) (Evidence 
 — In cases relating to Wills and Testaments, 7.) 
 
 X. ADMISSIONS, DECLARATIONS AND ACTS OF PARTIES AND PRIVIES. 
 
 1. A. B., a member of a partnership for farming and tan- 
 ning, purchased a mule ; the purchase was made by A. B. 
 alone, nothing was said of its being for the firm, and there 
 was no evidence that the mule had ever been on the joint 
 farm, or in the tannery of the plaintiffs. An action having 
 been brought in the name of the firm for deceit, &c, in the 
 sale; upon a motion to nonsuit: held, that in the absence of 
 other testimony, there was not only some, but plenary evi- 
 dence of the allegation that the mule was bought for the 
 firm ; that the act of issuing the writ in the name of the 
 firm, raised the presumption that the mule had been bought 
 for it. Little v. Hamilton, Phil. L. R. 29. 
 
 2. Declarations of a bargainor impeaching a conveyance, 
 made after its execution, are not admissible in evidence. 
 Burroughs v. Jenkins, Phil. Eq. R. 33. 
 
 3. Where an Agent of a Railroad Company was intro- 
 duced in its behalf, to prove that certain goods were not de- 
 livered to the Company as a common carrier, it was compe- 
 tent for this purpose to show that it was the custom ot the 
 Company to weigh, mark and book such goods; those in 
 question not having been so treated. Vaughan v. R. U. Co., 
 63 X. C. R. 11. 
 
 4. The declarations of a grantor made previous to the 
 execution ot a deed, are inadmissible to control or explain 
 the meaning of language used in such deed. Gaineu v. Hays, 
 63 N. C. R. 497. 
 
 5. In an action to recover possession of land, or other 
 property, where both parties claimed under the same person, 
 one under an execution sale, and the other by deed made 
 prior to said sale, it is competent, in order to establish the 
 bona fides of the deed, to prove declarations of the vendor, 
 made ante litem motam and before the contract of sale, ad- 
 mitting an indebtedness to the vendee. McCanlessw Rey- 
 nolds, 67 X C. R. 268. 
 
 6. What an agent says in the course of doing an act in 
 the scope of his agency, characterizing or qualifying the act, 
 is admissible as part of the res gestce. But if his right to 
 act in the particular matter in question has ceased, his de- 
 
EVIDENCE— X. 159 
 
 clarations are mere hearsay, which do not affect the puncipal. 
 Smith & Melton, v. N. OR. R. Co., 08 N. 0. K. 107. 
 
 7. The power to make declarations or admissions in be- 
 half of a company as to events or defaults that have occur- 
 red and are past, cannot be inferred as incidental to the 
 duties of a general agent to superintend the current dealings 
 and business of the company. Ibid. 
 
 8. Testimony as to transactions which took place between 
 the defendant and an agent, since deceased, is admissible evi- 
 dence in a suit brought by the principal against the defen- 
 dant. Especially so^ if the acts and agreements of the agent 
 were afterwards communicated to the principal and by him 
 assented to Howerton v. Lattimer, 03 JS\ 0. R. 370. 
 
 9. A plot and a deed for a lot, corresponding with the one 
 in dispute, on the other side of the same square, being writ- 
 ten admissions of the vendor, relative to the quantity of land 
 sold, is admissible in evidence in a suit wherein such quan- 
 tity is one of the points to be decided by the jury. Hutch- 
 inson, Ex'r v. Smith et «/,, 08 N. 0. E. 351. 
 
 10. The declarations and acts of a third person are not 
 evidence against a party, unless such third person be his 
 agent; and the agency must be established before such acts 
 and declarations are admissible. Grandy v. Ferebee, 08 
 N. 0. R. 350. 
 
 1 L In a suit on a bond, alleged to be due the plaintiff's 
 testator, who died in 1803, which bond was given in 1858, 
 and was executed at the request of the testator, in renewal 
 of an older bond of date some ten years previous, both of 
 which bonds, it was claimed by defendant, were given as 
 vouchers or receipts, for money due her from the estate of her 
 husband, of which the plaintiff's testator was executor: It 
 was held, that although the defendant could not testify 
 directly as to any conversation or understanding she had 
 with tlie plaintiff's testator at the time of the execution of 
 the first bond, concerning its use, in was competent for her to 
 relate that conversation in her evidence as to what was said 
 and what took place between herself and the agent of said 
 testator at the time of the execution of the other, or second 
 bond — the one in suit. Gilmer v. McNuiry, 09 X. O. K. 
 33."). 
 
 12 Direct evidence of a conversation and understanding 
 with the plaintiff's testator is, under sec 343, Code of Civil 
 Procedure, incompetent ; a rehearsal of that conversation, 
 however, in a conversation with an agent of such testator is 
 competent, as a part of the res (jester. Ibid. 
 
160 EVIDENCE— X.— XI.— XIL— XIII. 
 
 13. The acts and declarations of a vendor, while in pos- 
 session of the property sold, are competent both to prove the 
 fact of the possession and control, and to qualify the extent 
 and purpose of the possession. Kirby .v Masten, 70 X. 0. 
 E. 540. 
 
 See (Agents and Principal — Of the liberty of the Principal 
 for the acts of his Agent, 15, 16, 17.) 
 
 XI. PUBLIC DOCUMENTS. 
 
 The Revenue Act of 1809-'70, ch. 225, makes, by impli- 
 cation in the 34th section, the auditor's certificates evidence 
 of the amount of taxes due from the sheriffs, but it is only 
 prima facie evidence, and may be rebutted. Jenkins v. 
 Briggs, 65 X. C. E. 150. 
 
 XII. RECORDS OF COURT, AND RECORDS AND BY-LAWS OF CORPORATIONS. 
 
 1. A record of proceedings under the poor debtor law, in 
 favor of one not shown to have been at the time of such pro- 
 ceedings in possession of articles set apart to him, is not ad- 
 missible as evidence in a suit for those articles, between third 
 persons. Weaver v. Parker, 479. 
 
 2. The records of a public corporation are admissible in 
 evidence generally. Their acts are of a public character, and 
 the public are bound by them. Weith & Arents v. City of 
 Wilmington, 68 X. O. E. 24 
 
 3. The by-laws of a corporation are not evidence for or 
 against strangers who deal with it, uuless brought home to 
 their knowledge and asseuted to by them. Smith v. N. G. 
 E. R. Co., 68 X. 0. E. 107. 
 
 4. The record of a suit between A and B, in which a 
 certaiu assignment was adjudged valid, is no evidence of the 
 validity of such assignment in a suit between A and D, D 
 being no party to the former suit. Sivepson v. Harvey, 60 
 X. O. E. 387. " 
 
 5. An order, issued by the Township Board of Trustees, 
 appointing a person overseer of a road, is proper evidence 
 of such appointment, and is admissible. State v. Cauble, 70 
 X. 0. E. 62. 
 
 XIII. PROOF OF OFFICIAL BONDS. 
 
 1. The office of the Clerk of the Superior Court of the 
 county for which oue is sheriff, is the proper place of deposit 
 for the bond of such sheriff; therefore, a copy of such bond 
 
EVIDENCE— XIIL— XIV. 161 
 
 ^certified by such clerk, is competent evidence of its contents. 
 ■State v. Lawrence, 04 N. G. R. 483. 
 
 2. Such a copy is competent (at least under the maxim, 
 •omnia praesumuntur, (C-c.,) even although the certificate do 
 not state that it has been recorded. Ibid 
 
 See (Guardian and Ward — Suit on Guardian Bonds 5, 6 ) 
 
 XIV. BOOKS OF ENTRIES, ACCOUNTS, RECEIPTS, &c. 
 
 1. The rule that entries in the books of a firm are evi- 
 dence against all of the parties, is true only of those made 
 whilst the firm is doing business; therefore, entries so made 
 by a partner who is winding up the partnership under the 
 .transfer to him for that purpose, are not per se evidence for 
 .him against a copartner, elements v. Mitchell, Phil. Eq. R. 3. 
 
 2. It is not competent to introduce as evidence against a 
 third person, entries made by a decedent containing accounts 
 in his own favor. Bland v. Warren, 65 N. 0. R. 372. 
 
 3. It is admissible to introduce such books under Rev. 
 Code, chapter 19, (Bat. Rev. ch. 17, sec. 343a,) to the 
 amount ot sixty dollars. Ibid. 
 
 4. Entries made by merchants' clerks, and other persons 
 -acting as agents and servants in their usual course of busi- 
 ness, who are dead, are competent evidence against third 
 persons. Ibid. 
 
 5. Entries of ages of pupils as shown by a common school 
 register, while not admissible to prove the ages, is yet com- 
 petent as an independent circumstance to corroborate the tes- 
 timony of a witness as to age. Falls v. Gamble, (M X. C. R. 
 455. 
 
 6 It is not competent for a co-debtor to offer iu evidence, 
 an entry in writing of a payment of a debt, made by another 
 co-debtor, who died prior to the institution of a suit, to 
 recover the debt,. Morgan v. Hubbard, 6(J X. C R. 304. 
 
 7. Such an entry is the simple declaration of the debtor 
 that the claim was paid, which has neither the solemnity ot 
 an oath, nor the test of a cross-examination, whether objec- 
 tionable, also as made iu the debtor interest, quere. Ibid. 
 
 8. A receipt for money given by an alleged agent for a 
 specific purpose is uot admissible to prove the tact of agency. 
 The agency being established prima facie by other evidence 
 to the satisfaction of the court, such receipt becomes then 
 proper evidence. (J randy v. Ferebee, 68 N. C. R, 356. 
 
 9. If a plaintiff offer in evidence a receipt which he had 
 given to tbe defendant, and which he had obtained from the 
 
 11 
 
162 EVIDENCE— XIV.— XV. 
 
 defendant upon a notice to him to produce it on the trial, he 
 is not hereby precluded from showing that the receipt had 
 the words "in full" in it when it was given, but that they 
 had been since obliterated. Miller v. Derr, 09 N. 0. R- 
 137. 
 
 See (Evidence — Its relevancy or irrelevancy, 8 ) (Evi- 
 dence — Parol evidence is when admissible, 7.) 
 
 XV. CONFESSIONS. 
 
 1. Confessions made by a prisoner, a slave, whilst wit- 
 nessing torture inflicted upon another prisoner for the same 
 offence in order to extort confession from him, are not com- 
 petent evidence. State v. Latvson, Phil. L. R. 47. 
 
 2. What amounts to such threats or promises as render 
 confessions inadmissible as being not voluntary ; what evi- 
 dence the Judge will hear to establish the fact of threats or 
 promises ; and whether there be any evidence to show that 
 the confessions were not voluntary ; — are questions of law, 
 and the decision upon them is subject to review in the 
 Supreme Court. Whether the evidence if true proves the 
 fact of threats or promises ; whether the witnesses testifying 
 to the court as to such fact are worthy of credit ; and in case 
 of conflict which of them is to be believed, — are questions of 
 fact for the Judge, and his decision upon them is not subject 
 to review. State v. Andrew, Phil. L E. 205. 
 
 3. Where there was some evidence that the confessions 
 of the prisoner were not voluntary, and in his argument to 
 the jury his counsel for the first time asked the Judge to 
 withdraw them : held, to be the duty of the Judge to decide 
 whether the objection to the confessions came too late, and 
 whether the jury should consider them as evidence. Ibid. 
 
 4. A prisoner in jail said to a fellow prisoner, '' If you 
 will not tell on me I will tell you something." The other 
 replied that he would not tell, but if he did it would make no 
 difference, for one criminal could not testify against another. 
 The former added, " I want to know what to do." The other 
 replied that if he knew the circumstances he could tell him 
 what to do: held, that confessions of a murder made there- 
 upon by the former to the latter, were admissible in evidence. 
 State v. Mitchell, Phil. L. R. 447. 
 
 5. Where one who has been sworn as a witness upon a 
 coroner's inquest and denied all knowledge of the alleged 
 homicide, within three or four hours afterwards, was arrested 
 as one of the guilty parties and then proposed to tell what 
 
EVIDENCE— XV. 163 
 
 she knew about the homicide and according! y gave material 
 evidence against herself: held, that the confessions were 
 voluntary, and competent evidence afterwards upon her trial 
 for murder. State v. Wright, Phil. L. E. 4S6. 
 
 6. On a trial for minder, the confessions of the prisoner 
 having been ottered in evidence, their reception was objected 
 to as having been induced by fear or hope, but was allowed ; 
 thereupon the prisoner asked the court to instruct the jury, 
 that " whether confessions are admissible at all as evidence, 
 as in case of other evidence, is solely a question for the judge, 
 but how far they are to be believed, or whether entitled to 
 credence at all, is a question solely fur the jury :" His Honor 
 gave such instruction, but added, " But the confessions of 
 the prisoner come before the jury untainted with fear or 
 hope, and are entitled to all the weight to which such evi- 
 dence is entitled ; and the fear or hope which vitiates confes- 
 sion must be such as to produce an impression that punish- 
 ment or suffering may be lightened or avoided by confession :" 
 held, (Rodman and Dick, J J., dissenting,) that such addition 
 was not objectionable. State v. Nero Davis, 03 N. 0. R. 578. 
 
 7. What constitutes fear, or hope, in case of confessions, 
 is a matter of law, iu respect to which the ruling of the Court 
 below may be reviewed ; whether such fear or hope existed iu 
 a particular ease is a question of fact, the decision of which 
 below cannot be reviewed. Ibid. 
 
 8. The confessions of a prisoner ought to be received with 
 great caution, and unless they are free and voluntary, and 
 without fear produced by threats, or inducement of temporal 
 advantage, ought to be rejected. State v. Matthews, 00 N- 
 C. R. 100. 
 
 9. The examination of a prisoner as to his own guilt, ta- 
 ken before a committing magistrate, is not admissible in evi- 
 dence, as the statement is made under the constraint of an 
 oath, and therefore, not voluntary. The objection to the ad- 
 missibility of such evidence, is much stronger, if the prisoner 
 be under arrest. Ibid. 
 
 10. To authorize the introduction of parol evidence as to 
 confessions of a prisoner, taken before an examining magis- 
 trate, it must appear affirmatively that there was no examina- 
 tion recorded as required by law. 1 bid. 
 
 11. Under the act of 18G8-'09, ch. 178, (Bat. Rev. c. 33, 
 s. 22,) the prisoner is entitled to the benefit of counsel, and, 
 before his examination it is the duty of the magistrate to in- 
 form him of the charge against him, and " that he is at lib- 
 erty to refuse to answer any question that may be put to 
 
104 EVIDENCE— XV. 
 
 him, and that his refusal shall not be used to bis prejudice." 
 Such examinations are judicial confessions, and the policy of 
 the law requires them to be taken under the protecting cau- 
 tion and oversight of the judicial officer — this caution is an 
 essential part of the proceedings and must be given to a pri- 
 soner under arrest, to render his examination, admissible in 
 evidence. Ibid. 
 
 12. The reasons of the statute extends to an inquisition 
 by a coroner. In this respect, he is an examining magis- 
 trate. Ibid. 
 
 13. When a prisoner is brought before a coroner while he 
 is holding an inquisition, and after witnesses had been exam- 
 ined, a post mortem examination made, and a verdict entered 
 up, iu answer to a question asked by the foreman of the jury 
 '' confessed," held, that although after the first question was 
 put, the prisoner was cautioned by the coroner not to answer, 
 the caution came too late to afford the protection which the 
 law requires, and the question was inadmissible. Ibid. 
 
 14. When a pbysician was examined as a witness, and 
 stated that he had examined the prisoner, and was of opinion 
 that she had been delivered of a child within three or four 
 days, and it was proposed to ask him " whether, from his 
 experience and knowledg of females, in three or four days 
 after the delivery of a child, and under the circumstances 
 detailed by the evidence, the prisoner was in a frame of mind 
 to give an intelligent answer, or know what she was talking 
 about ?" held, that the question was proper, and should have 
 been allowed. Ibid. 
 
 15. The rule of law in criminal cases, requiring proof 
 beyond a reasonable doubt, does not require the State, even 
 in a case of circumstantial testimony, to prove such a coinci- 
 dence of circumstances as excludes every hypothesis except 
 the guilt of the prisoner. The true rule is, that the circum- 
 stances and evidence must be such as to produce a moral cer- 
 tainty of guilt, and to exclude auy other reasonable hypoth- 
 esis. Ibid. 
 
 10. The admissions of guilt of one who had, prior to 
 making such admission, been induced by fear or the hope of 
 benefit, to confess himself guilty of a criminal charge, cannot 
 be used against him, unless it be shown by the most irrefrag- 
 ible evidence, that the motives which induced the first con- 
 fession had ceased to operate. State v. Lowliorne, 00 IS 7 . 0. 
 R. 038. 
 
 17. Hence, when a party had been persuaded to make a 
 confession of guilt, through a promise of immunity from pros- 
 
EVIDENCE— XV.— XVI. 165 
 
 ecution therefor: held, that in the absence of clear proof 
 that such inducement had ceased to operate, his confessions 
 touching the same offence thereafter made, were inadmissible. 
 Ibid. 
 
 18. A defendant in custody and charged with larceny, 
 upon his examination before a Justice of the Peace, being 
 cautioned that "he was not obliged to answer any question 
 for or against himself," confesses his participation in the lar- 
 ceny; such confession is admissible evidence ou his trial 
 before the court. State v Patterson, 08 X. G. R 292. 
 
 19. On the trial of the mother for the murder of her in- 
 faut child, it is error in the Court below to permit a witness 
 to relate a statement made by the mother of the prisoner and 
 in her presence, that the prisoner " had a child this way before, 
 and put it away," to which the prisoner made no reply, and 
 the reception of such evidence entitles the prisoner to a new 
 trial. State v. Shuford, 69 X. C. R. 486. 
 
 20. The prosecutor, a white man, the employer of the de- 
 fendant, a colored man, goes to the field where the defendant 
 is at work, with two other white men, and tells him that he 
 has lost a hog, at the same time saying, " I believe you are 
 guilty— if you are, you had better say so ; if you are not, you 
 had better say that," and the defendant confesses his guilt: 
 held, that the confession was made under the influence of 
 hope or fear, or both, and under the circumstances was inad- 
 missible. State v. Whitfield, 70 X. C R. 35G. 
 
 XVI. DYING DECLARATIONS. 
 
 1. Dying declarations are admissible only as to those 
 things of which the declarant would have been competent to 
 testify if sworn in the case ; and if there be not the state- 
 ment of a fact, but merely the expression of the opinion of 
 the deceased, they are inadmissible. State v. Williams, 67 
 X. C. R. 12. ' 
 
 2. Therefore, where the deceased, who was shot at night 
 in a house from the outside through an aperture iu the logs, 
 declared, while in extremis, "It was E. W. who shot me, 
 though I did not see him :" held, that the declaration was 
 inadmissible. Ibid. 
 
 3. The decision of a Judge as to the admissibility of the 
 declarations of a deceased person, made just before his death, 
 comprises a decision both of fact and of law. Of fact, as to 
 what were the declarations, and as to the circumstances 
 under which they were made. Of lair, as to whether the 
 
166 EVIDENCE— XVII. 
 
 declarations were admissible alone or in connection with the 
 circumstances. On the former, the 2 udge's decision is fiual. 
 On the latter, it is subject to review. Ibid. 
 
 XVII. JN CRIMINAL PROCEEDINGS AND INDICTMENTS. 
 
 1. In order to confirm the evidence of a witness, it is com- 
 petent to ask whether it does not concur with statements 
 previously made by the witness, out of court State v. Mar- 
 shall, Phil. L. E. 49. 
 
 2. The husband of one charged as an accessory is not a 
 competent witness in favor of one charged as the principal 
 felon. State v. Ludwiek, Phil . L. R. 401. 
 
 3. Where two or mure persons are on trial under one in- 
 dictment for the same offence, they are, by the act of 1866, 
 ch. 43, competent and compellable to give evidence for or 
 against each other, though one of them cannot be a witness 
 for or against himself, or against his wife, (and e converso), 
 and is not compellable to answer any question tending to cri- 
 minate himself. State v. Rose, Phil. L R. 406. 
 
 4. A freed woman is a competent witness against a freed 
 man who claimed her as his wite while they were slaves, but 
 since their emancipation has refused to marry her. State v. 
 Taylor, Phil. L. E. .508. 
 
 5. To the rule requiring testimony to be subjected to the 
 tests of "ap oath" and "cross examination," there are excep- 
 tions arising from necessity. One of these consists of decla- 
 rations which are part of the res gestae. State v. Dula, Phil. 
 L. R. 211. 
 
 6. This exception embraces only such declarations as give 
 character to an act, therefore, when the deceased was met a 
 tew miles from the place where she was murdered, going in 
 the direction of that place: held, that the declarations in a 
 conversation with the witness, as to where the prisoner was, 
 and that she expected to meet him at the place whither she 
 was going, were not admissible against him Ibid. 
 
 7. " What facts amount to an agreement to commit a crime 
 by the prisoner and one charged as accessory, so as to render 
 competent the acts aud declarations of the alleged accessory, 
 is a question of law, and the decision of the court below upon 
 it is subject to review in the Supreme Court. Ibid. 
 
 8. So, whether there is any evidence of a common design ; 
 but, whether the evidence proves the fact of common design, 
 whether the witnesses are worthy of credit, and in case of 
 conflict, what witnesses should be believed by the Judge, are 
 
EVIDENCE— XVII. 1G7 
 
 questions of fact for him to decide, and are not liable to re- 
 view. Ibid. 
 
 9. What was said by a third person iu the presence and 
 the hearing of the prisoner ma} 7 be given in evidence against 
 him. State v. Ludwick, Phil. L. E. 401. 
 
 10 Where there is any evidence of an agreement between 
 two or more to compass the death of a third person, the de- 
 cision of the court below that such evidence is sufficient to 
 establish the agreement, (preliminary to the admission of the 
 acts, &c, of one of such persons as evidence against the 
 other,) cannot be reviewed in the Supreme Court. State v. 
 Dula, Phil. L. R. 437. 
 
 11. Although in investigating the preliminary question 
 as to the agreement evidence of the naked declarations of 
 ■one of the parties is not competent : yet if such declarations 
 make part of the act charged in the indictment it is other- 
 wise. Ibid. 
 
 12. In order to support an exception for the exclusion of 
 certain testimony, such testimony must appear to have been 
 relevant. Ibid. 
 
 13. What one says in via as to the place to which he is 
 going, is competent evidence to establish the truth of what 
 he says. Ibid. 
 
 14. Evidence that a prisoner after being committed to 
 jail had opportunity to escape and did not avail himself of it, 
 is not admissible. State v. Taylor, Phil L. P. 508. 
 
 15. The examination of a witness taken before a jury of 
 inquest or an examining magistrate, is inadmissible as evi- 
 dence in chief, unless it be shown that the witness is dead. 
 Ibid. 
 
 16. In a case of murder, the deceased being a merchant, 
 and the evidence against the prisoner being circumstantial, 
 an account book showing entries by the deceased just before 
 the murder, was held admissible as evidence tendiug to con- 
 nect the prisoner with the transaction. Ibid. 
 
 17. The prisonor has a right, with a view of impeaching 
 her credibility, to ask the prosecutrix when introduced as a 
 witness in a case of alleged rape, if she had not been deliv- 
 ered of a bastard child. State v. Murray, 03 N. C R- 31. 
 
 18. The error in excluding such question is not cured by 
 permitting the prisoner to show afterwards, by various wit- 
 nesses, that the prosecutrix had been delivered of such child, 
 and that her character for chastity is bad. Ibid. 
 
 19. Errors committed by the court during the trial can be 
 remedied only by a venire de novo. Ibid, 
 
1 68 EVIDENCE— XVII. 
 
 20. An objection by the State to a question asked of a 
 witness being sustained by the court but immediately after- 
 wards withdrawn, so that the prisoner might have asked it: 
 held, no ground for a new trial, especially where the question 
 was asked and answered by another witness. State v. Mc- 
 Curry, 63 N.C.E.33, 
 
 21. There benig no evidence of a mutual combat between 
 the prisoner and the deceased, it was proper for the court to 
 refuse to charge the jury upon the supposition that there was 
 such evidence. Ibid. 
 
 22. It being a question whether a severe injury, supposed 
 to be a burn, was received by the deceased before death, it 
 was competent for the prisoner to show that the deceased 
 said he had a large burn upon his abdomen ; such declarations 
 being admissible as natural evidence. State v. Harris, 63 
 K 0. E. 1. 
 
 23. It is not necessary, in North Carolina, to show emis- 
 sion in order to prove rape, even where the indictment con- 
 cludes against the form of the " Statute" — not " Statutes :" 
 the 20th sec. of Eev. Code, chap. 35, having abolished all dis- 
 tinction between these phrases. State v. Storlcey, 63 N.C E. 7. 
 
 24. A witness for the State (here an accomplice) having 
 been asked upon the examination in chief, whether he had 
 not upon some other occasion given a different statement of 
 the transaction, may thereupon, at the instance of the Solic- 
 itor, be permitted to explain why he gave such statement. 
 State v. Pulley, 63 K C. E. 8. 
 
 25. Answers given by a witness to such collateral ques- 
 tions as are put with the purpose of showing his temper, dis- 
 position or conduct, are not conclusive, but may be contra- 
 dicted by the interrogator. State v. Kirkman, 63 IS". C E. 
 246. 
 
 26. One who calls out a statement from a witness, which 
 he subsequently impeaches by another, cannot object to tes- 
 timony from the other side in support of such witness, on the*- 
 ground that the statement so called out by himsell was col- 
 lateral matter. Ibid. 
 
 27. A mule had been stolen from the residence of its 
 owner upon Saturday night, and upon the next night, again 
 from the residence of A B : held, that the fact that upon 
 Sunday morning the prisoner had carried the mule — which 
 from appearances then had been tied out during part of the- 
 preceding night, to the house of A B : even when taken in 
 connection with the additional fact that he assisted in steal- 
 ing it upon Sunday night, although it might raise a conjee- 
 
 ? 
 
EVIDENCE— XVII. 169 
 
 ture, "was no evidence that be had stolen it on the night before. 
 State v. Vinson, 63 N. 0. R. 335. 
 
 28. It is within the discretion of the Judge presiding at 
 a trial to admit or exclude evidence which, at the stage of 
 the case when it is tendered, is irrelevant, even although the 
 counsel tendering it promises to connect it with the case by 
 subsequent testimony ; therefore, no appeal to this court lies 
 from a ruling winch excludes such evidence. State v. Cherry, 
 63 NT. 0. R. 493. 
 
 29. The rule, falsum in unofalsum in omnibus" is not a 
 rule of law in this State ; and the jury may believe all, or a 
 part, or none, of the testimouy of a witness to whose evidence 
 that rule is applicable, as they think best. State v. Brantley, 
 63 N. 0. R. 518. 
 
 30. An omission of the word 'county" before the words 
 "of Wake " is immaterial in the record of the trial below, as 
 the court is bound to know what are the counties of the 
 State. Ibid. 
 
 31. Evidence having been given that a person then upon 
 trial for larceny, had been charged with the crime by the 
 prosecutor, face to face, on being arrested under a Slate's 
 warrant : it is competent for the defendant to show what his 
 reply was to such accusation. State v. Patterson, 63 N. 0. R. 
 510. 
 
 32. There being evidence that the deceased came to his 
 death by the infliction of whippings by the prisoner, whilst 
 the latter insisted that the death was caused by a burn of 
 which there was an appearance on the abdomen, the testi- 
 mony of a physician that in his opinion the burn was inflicted 
 after death, was admissible in support of other evidence for 
 the prosecution. State v. Harris, 63 N. C. R. 1. 
 
 33. Although the law allows to a person in loco parentis 
 the broadest latitude in governing, it is not necessary to prove 
 express malice on bis part in order to convict of murder, if 
 the facts show such cruelty and inhumanity in whippiug, as 
 exclude the idea of passion. Ibid. 
 
 34. The evidence being closed on both sides, upon the 
 defendant being permitted to recall a witness to explain a 
 part of his testimony, it is within the discretion ot the judge 
 to forbid the examination of the witness as to new matter. 
 Ibid. 
 
 35. In all criminal prosecutions every man has a right to 
 confront the accusers and witnesses with other witnesses ; 
 Therefore, entries in the course of business, upon the books 
 of a Railroad Company, by one, at the time an agent of the 
 
170 EVIDENCE— XVII. 
 
 company, and still living, but absent from the State, are not 
 competent evidence of the tacts therein set forth, upon the 
 trial of a third person for crime. State v. Thomas, 04 X. 0. 
 R. 74. 
 
 30. Where two are indicted for a battery, the one for the 
 act, and the other for using encouraging language at the 
 time, the wife of the one who encouraged the beating is a 
 competent witness for the other party : The legal effect an 
 acquittal of the other, is not an acquittal of her husband. 
 State v. Mooney, G4 N. 0. R. 54. 
 
 37. What a man says when charged with a crime, is 
 competent evidence for him ; therefore, what was said by a 
 man charged with having stolen goods in his possession, who 
 thereupon showed them, is competent. State v. Worthington, 
 C4 JS\ C. R. 594. 
 
 38. It was also competent as part of a conversation, the 
 first part of which had necessarily been given in evidence by 
 the State. Ibid. 
 
 39. In such cases, the record ought to show what it was 
 that the defendant said, — so as to show its importance, and 
 that its rejection prejudiced him; it ought also to present 
 what had been said by the person who charged that he had 
 stolen goods in his possession. 1 bid. 
 
 40. A person may be convicted of larceny upon evidence 
 connecting him with the theft, though the articles stolen may 
 not be identified, or even found. State v. Kent, 05 N". 0. R. 
 311. 
 
 41. A person indicted in the same bill as an accessory 
 with the prisoner in the murder, although not on trial with 
 him, is an incompetent witness. Stale v. Diuilap, 05 N. 0. 
 R. 288. 
 
 42. What the bystanders may say immediately after a 
 homicide has been committed is not competent evidence. 
 Ibid. 
 
 43. Where, upon a trial for minder, there was a question 
 whether the prisoner was in the military serviee of the Uni- 
 ted States on or before the 17th day of August, 1805 in 
 order to ascertain whether he was entitled to the benefit of the 
 act of ''Amnesty and Pardon,'' ratified the 22d December, 
 1860, aud a witness testifying five years after the transaction, 
 said that the homicide was commitied " about the last of 
 August, 1805," it was held, that there was some evidence, 
 which ought to have been submitted to the jury, tending to 
 show that the homicide was committed on or before the 17th 
 day of August, 1865, and that it was error for the court to 
 
EVIDENCE— XVII. 171 
 
 instruct the jury that there was do evidence of that fact. 
 State v. Shelton, 05 N. 0. E. 294. 
 
 44. Where two persons are jointly indicted, and one of 
 the parties submits and judgment is suspended, he is still a 
 defendant within tlie meaning of the act of 1870-'71, and is 
 therefore incompetent to testify for or against his co-defend- 
 ant. State v. Bruner, 05 X. 0. E. 499. 
 
 45. Where two are jointly indicted for a forcible trespass, 
 and one of the defendants submits, upon whom no judgment 
 is pronounced, it is incompetent to introduce the record of his 
 submission in a trial against his co-defendant, as evidence 
 confirmatory of the testimony of the prosecutrix. State v. 
 Queen, 05 X. 0. K. 464. 
 
 40, It is not competent on the cross-examination of a wit- 
 ness to ask him if he made the same statement before the 
 grand jury as he now makes, when the counsel state that 
 their object in asking such question is not to impeach the 
 credibility of the witness. State v. Parker dfc Gilmer, 05 X. 
 C. E. 455 
 
 . 47. Where a witness, in case of homicide, stated to anoth- 
 er person that she had received several severe wounds, and 
 believed she would die, and desired a neighbor to be sent for; 
 that she wanted to " tell all about it, and who did it" : held, 
 that such statements were competent as confirmatory testi- 
 mony, and the fact that the witness said she would die, would 
 furnish no ground for their exclusion. State v. Adair, 00 N. 
 0. E. 298. 
 
 48. It is cempetent for a magistrate to state what a wit- 
 ness swore before him in regard to the homicide, although he 
 afterwards committed the statement to writing. Such state- 
 ment could only be referred to, to refresh his memory, and 
 was properly treated as a memorandum. Ibid. 
 
 49. Where one of the prisoners in this case was present 
 and heard a conversation between the magistrate and his 
 (prisoner's) father, and saw the confusion of the father when 
 a certain statement was made in regard to the principal 
 State's witness : held, that this fact was admissible as con- 
 firmatory testimony. Ibid. 
 
 50. Upon the trial of an indictment for " unlawfully and 
 wilfully demolishing " a public school-house, under chap. 24, 
 sec. 103, Rev. Code, the record of a petition in equity of sev- 
 eral persons who therein claimed title to the locus in quo, 
 setting forth their title thereto as tenants in common, the or- 
 der for partition, the report of the commissioners, and a final 
 decree, confirming that report, among whom was a party un- 
 
172 EVIDENCE— XVII. 
 
 der whom the defendants claimed, there being evidence of de- 
 fendant's possession, even if not sufficient evidence of title, is 
 certainly admissible as evidence, tending to explain the pos- 
 session of the defendants and their bona fides. State v. Rose- 
 man, 66 N. 0. E. 634 
 
 51. Upon a criminal trial, it is proper to ask a witness to 
 look around the Court room and point out the person who 
 committed the offence. State v. Thos. Johnson, 67 N. 0. R. 55.. 
 
 52. ■ Evidence of the name of a prisoner as given by him 
 when brought before the examining magistrate is admissible, 
 though it do not appear whether the examination was re- 
 duced to writing. Ibid. 
 
 53. On a trial for murder, a witness for the State has a 
 right to relate to the jury the whole of a conversation which 
 took place between the witness and the accused on the day af- 
 ter the alleged homicide; although in that conversation the wit- 
 ness, in answer to questions asked by the accused, expressed 
 the belief, giving the reason for such belief, that the prisoner 
 committed the homicide. State v. Williams, 68 N. C. R, 60. 
 
 54. On cross-examination, a witness on a trial for murder, 
 stated that she "did not tell Mrs. L. on the day of the homi- 
 cide, that the deceased was sitting up, and she did not think 
 he was hurt as bad as he pretended to be": held, that the 
 State calling out this evidence was bound by it, and could 
 not call Mrs. L. to contradict the statement. State v. El- 
 liott, 68 N. C. R. 125. 
 
 55. With certain exceptions, neither the acts nor the de- 
 clarations of persons not on oath and subject to cross-exam- 
 ination, are admissible for or against a defendant. There- 
 fore, in an indictment against A for larceny, the admissions 
 and acts of B tending to prove that he, B, was the guilty 
 party, are not competent evidence on the trial of A. State 
 v. White, 68 ff O R. 158. 
 
 56. On a trial of a defendant for receiving a stolen horse, 
 it was in evidence, that one R was found with the horse at 
 the barn-yard of the prosecutor by his, the prosecutor's son, 
 and that R offered to give the son $75 for the horse, know- 
 ing that it did not belong to the sou, but the father, and that 
 in company with the son he carried the horse off, promising 
 to pay the $75 at a future time: held, to be some evidence 
 that R did not take the horse animo furandi, and it was er- 
 ror for his Honor, on the trial below, to charge that accord- 
 ing to such evidence R was guilty of larceny. State v. Shoaf, 
 68 N. C. R. 375. 
 
 See (Assault and Battery, 23.) (Evidence — Confessions, 
 15, 19.) 
 
EVIDENCE— XVIII. 173 
 
 XVHL IN CASES RELATING TO WILLS AND TESTAMENTS. 
 
 1. To support an allegation of partial insanity, evidence 
 of strangeness of conduct towards a particular person bad 
 been introduced by the caveators : held, to be competent for 
 tbe propounders to show similar conduct towards other per- 
 sons. Wood v. Sawyer, Phil. L. E. 251. 
 
 2 The contents of a paper written by dictation of the 
 testator about two years after he had executed his will, 
 rssigning reasons for the particular dispositions of such will : 
 held, to be competent upon the question of the testator's 
 capacity. Ibid. 
 
 3. In support of an expert's opinion upon a question of 
 insanity, it is not competent for him to repeat an account 
 which he had received from a monomaniac as to the develop- 
 ment of his own disease ; or another account related to him 
 by an unprofessional nurse of another insane person. Ibid. 
 
 4. The testator having in his lifetime referred to a certain 
 book as having been printed at his own expense and as giv- 
 ing a correct account of his family, a genealogical table therein 
 is competent evidence of the state of his family at his death. 
 Ibid. 
 
 5 The course and practice of the court as to the order in 
 which testimony is to be introduced is well settled, and ought 
 not to be violated except in cases of surprise or mistake as 
 to matters seriously affecting the merits of a cause. Ibid. 
 
 6. Proof of the transaction of ordinary business not con- 
 nected with the matter in regard to which delusion exists is 
 some evidence to rebut a presumption raised by proof that 
 such delusion existed a short while before; whether sufficient 
 or not, is a matter solely for the jury. Ibid. 
 
 7. The rule, latent ambiguities in wills may be explained 
 by parol evidence, approved of and applied. ("Liuebarger 
 Plantation.") Kincaid v. Lowe, Phil. E. R. 41. 
 
 8. If on the trial of the issue of devastavit vel non, the 
 will is attacked on the ground of undue influence and false 
 representations whereby the testatrix, as declared in the 
 paper writing propounded, was induced to believe that all of 
 her relatives had joined in proceedings to declare her a 
 lunatic, it is competent for the caveators to introduce the 
 record of such proceedings to show that only a portion of the 
 next of kin had instituted them. Lawrence v. Steel, 66 
 N. 0. It. 584. 
 
 9. One of the subscribing witnesses to a will being asked 
 on his cross-examination, if he had not a short time before 
 
174 EVIDENCE— XIX— XX— XXI. 
 
 the execution of the will, expressed to the other subscribing 
 witness doubts of the capacity of the testatrix to make a will, 
 and on that account hesitated to sigu the will as a witness, 
 and having denied using any such expressions : held, that 
 evidence contradicting the witness in regard to such conver- 
 sation, was admissible, not on the ground of its tending to 
 prove capacity or incapacity in the testatrix, but for the pur- 
 pose of discrediting the witness, by showing that he had 
 made different statements to his evidence on the trial, upon 
 a matter pertinent to the issue. Keerans v. Brown, 08 X. 
 C. K. 43. 
 
 XIX. WHEN EVIDENCE IS, OR IS NOT REQUIRED. 
 
 1 Xo evidence is required of facts admitted in a cuse. 
 Keeler v. Newbern, Phil. L. K. 505. 
 
 2. Where a party has it in his power to establish the 
 truth of any disputed fact, it is his dutv to do so. Covington 
 v, Wall, 05 X. 0. li. 594. 
 
 XX. ON WHOM IS PLACED THE BURDEN OF PROOF. 
 
 1. In actions for damages, a party alleging negligence 
 cannot shift the burden of proof on the other side, until he 
 has proved facts, at least, more consistent with negligence 
 than with care. Jones v. N. C. R. Co., 67 X. 0. E. 122. 
 
 2. Therefore, where a Railroad Company is sued for dam- 
 ages by its train to a horse over six mouths from the time of 
 the injury, not only is the burden of proving negligence on 
 the plaintiff, but he must show facts inconsistent with the 
 probability of care ; e. g , that the whistle was not blown. 
 Ibid. 
 
 XXI. WHEN THE JURY IS TO DECIDE UPON THE EFFECT. 
 
 1. Where a lost letter was one of many that had passed 
 between a principal and his agent in reference to a matter of 
 business, and its contents were not precisely admitted : held, 
 to be error for the court to take upon itself to state its effect 
 upon the relation between the parties to the correspondence; 
 and that in such case the court with proper observations on 
 the law of agency, revocation, &c, should submit the ques- 
 tion of effect, &c, to the decision of the jury. Sneed v. Smith, 
 Phil. L. R. 595. 
 
 2. Upon a question whether a party, demanding of the 
 lessor to be put into possession of premises that had been let 
 
EVIDENCE— XXIL— XIII.— EXCHANGE, &o. 175 
 
 to him, was ready and able to pay a quarter's rent in ad- 
 vance: hdd, that the evidence of such party, that he was 
 ready to pay if lie had been put into possession ; and, that 
 he did not hear an alleged demand of such rent by the lessor 
 as a condition of putting him into possession, for if he had, 
 he would have paid it, — was some evidence of such readiness 
 and ability, and as such was to be left to the jury. Cronhj 
 v. Murphy, 64 N. C. R. 489 
 
 3. The identification of a lot of land described on the plan 
 of a town only as lot No 115, and not otherwise described 
 in the deed, is a question of fact for a jury. Bryan v. Fan- 
 cett, tio X. C. K. 650. 
 
 XXII. WHO TO DECIDE UPON ITS COMPETENCY. 
 
 "Whether or not there was a spoliation of a deposition of- 
 fered in evidence, is a question for the Court, to be decided 
 upon inspection, and it is error to submit the same to the 
 decision of the jury. StWi v. LoofaiMU, 08 X. C. E. 227. 
 
 XXIII. GROUND OF OBJECTION TO EVIDENCE TO BE STATED, 
 
 A party objecting to the introduction of evidence must 
 state with certainty the points excepted to; and, if the ground 
 stated for such objection be untenable, it is error to reject 
 the evidence, though inadmissible if properly objected to. 
 Bridgets v. Bridgers, 69 N. C. E. 45 L. 
 
 EXCHANGE OF RAILWAY BONDS. 
 
 1 The legal effect of the exchange of bonds of the State 
 and the VV. C. & R. E. R. Co., and of the mortgage, author- 
 ized by the acts ef 1850 and 1861, was to vest the ownership 
 of the bonds in the State, secured by the mortgage. The 
 State had, therefore, a valuable interest in those bonds and 
 mortgage, as a fund to dispose of, in aid of other works of 
 internal improvement, subject to existing equities. W. C. 
 dt R. It. Co. v. IF. B. 11. Co , 66 N. C. E. 00. 
 
 2. In transferring the bonds to the Western E. E., Co., 
 in payment of the State's subscription, the Geaeral Assem- 
 bly did not exceed its power. But the General Assembly 
 had no power to subordinate these bonds to others authori- 
 zed to be issued ty the act of March 12th, 1870. Ibid. 
 
176 
 
 EXECUTION— I— II. 
 
 EXECUTION 
 
 i. 
 ii. 
 
 in. 
 
 IV. 
 
 When to issue and its teste. 
 
 When to be issued from the Su- 
 preme and be made returnable 
 to the Superior Court. 
 
 What may be levied on and sold 
 under execution. 
 
 Levy, sale and application of the 
 money raised. 
 
 V. Lien and priority of execu- 
 tions. 
 
 VI. What may be received under 
 
 an execution. 
 
 VII. Supplemental proceedings. 
 VIII. Irregular and void executions 
 
 how set aside. 
 
 I. WHEN TO ISSUE AND ITS TESTE. 
 
 1. Section 10, of the ordinance of June 23d 18G6, ("To 
 change the jurisdiction, &c") modified the provisions of the 
 Eev. Code, e. 42, s. 29, directing Clerks to issue executions 
 within six weeks ; so that a clerk who after Spring Term, 
 1867, failed to comply with the above statute, was not respon- 
 sible therefor. Badham v. Jones, 64 IS". C. R. 655. 
 
 2. A minute upon the docket, " Issue execution," is not 
 to be taken as a mandate of the court, although it may be 
 such a memorandum as the clerk may extend into an order, 
 or, as may enable the court afterwards to have such order 
 entered nunc fro tunc. Ibid. 
 
 3. Where there is a judgment and fi. fa. or vend. expo. 
 issues during the life of the defendant, the sheriff may pro- 
 ceed to sell, although the defendant dies before the sale ; and. 
 so he may, when the fi. fa. or vend. expo, issues after the 
 death, if tested before. But if the sheriff, for any cause, 
 return the process without a sale, no alias can issue tested 
 after the death of the defendant without a sci. fa. against 
 his heirs. Aycock v. Harrison, 65 N. C. R. 8. 
 
 4. The act of Assembly, 1870-'71, chapter 42, by which 
 executions issued on judgments in civil actions, are required 
 to be tested as of the term next before the day on which they 
 are issued, is merely directory, and its omission does not viti- 
 ate the process. Bryan v. Hubbs, 69 N. 0. R. 428 
 
 II. WHEN TO BE ISSUED FROM THE SUPREME AND BE MADE RETURNABLE TO 
 
 THE SUPERIOR COURT. 
 
 1. When an execution is issued from the Supreme Court 
 returnable to the Superior Court, according to the provisions 
 of the Revised Code, ch. 33, sec. 6, and was docketed on the 
 execution docket of the latter court, tfie execution is treated 
 as received under color and by virtue of the clerk's office, 
 
EXECUTION— II— III. 177 
 
 .tind he cannot be allowed to suggest irregularities therein. 
 Greenlee v. Sudderth, 05 N. 0. P. 170. 
 
 2. In such a case as that above stated, the judgment is 
 .not reversed, but judgment is rendered in this court accord- 
 ing to the modification resulting from the opiuiou, and in 
 this case it was referred to the clerk to ascertain and report 
 the current rate of gold, and judgment was thereupon ren- 
 dered in this court in accordance with the decision. Ibid. 
 
 III. WHAT MAY BE LEVIED ON AND SOLD UNDER EXECUTION. 
 
 1. Where the defendant in an execution had conveyed 
 all his property, real ami personal, to a third person : held, 
 that the plaintiff had a right to direct the officer to levy upon 
 the real estate before the personalty. Standi v. Branch, 
 Phil. Pep. 300. 
 
 2. A defendant may expressly or by implication waive 
 the right to have his personal estate levied upon before his 
 real estate, and a fraudulent conveyance of all his estate will 
 .amount to such a waiver. IlM. 
 
 3. Where a sheriff, under a ven. ex. having relation prior 
 to a certain deed in trust, sold land which had been con- 
 veyed in such deed to secure creditors, and upon being 
 indemnified allowed the trustee to retain the surplus beyond 
 what the process in his hands called for ; and before the re- 
 turn day other like writs, having similar relation, were placed 
 in his hands, upon which he returned, '' To hand too late to 
 sell :" held, that the creditors under the later writs had a 
 right to join in a bill to subject such surplus to the satisfac- 
 tion of their debts. Boyd v. Murray, Phil. Eq. E. 238. 
 
 4. Also, that the sheriff, having made such a return, could 
 not be compelled by a rule to bring in the money. Ibid. 
 
 5. The 5th section of the Ordinance of the Convention of 
 1805 (Stay Law) does not affect writs of ven. ex. Ibid. 
 
 0. The interest of one who holds laud under a bond for 
 title, the price not having been paid, is not subject to sale 
 under execution. Ledbetter v. Anderson, Phil. Eq R. 323. 
 
 7. The interest which a lessor reserves for rent in the 
 crop of his tenant, is not, before a separation thereof, liable 
 to be levied on, under an execution against the lessor. 
 
 Wahton v. Bryan, 04 N. C. P. 754. 
 
 8. When a,fi. fa. was levied upon the land of the defen- 
 dant in the execution, in 1802, and successive writs of vend. 
 4iX])os. were issued thereon until the Fall of 1807, when the 
 laud was sold by the sheriff, and in tbe meantime, in the year 
 
 12 
 
178 EXECUTION— III— IV. 
 
 1866 the same laud was conveyed by the defendant in the- 
 execution by a deed in trust, it was held, that the crops grow- 
 ing ou the laud iu 1867, did not pass to the purchaser of the 
 laud under the execution, but belonged to the bargainee 
 under the deed iu trust. Walton v. Jordan, 65 N. 0. K. 170. 
 1). Crops growing on laud pass, by presumption of law, 
 with the title of the laud, but the presumption may be rebut- 
 ted even by parol evidence. Ibid. 
 
 10. Where a debtor conveys property iu trust to sell and 
 pay certain creditors, the trustees holds in trust for the cred- 
 itors, and then in trust for the debtor as a resulting trust. 
 This resultiug trust cannot be sold under executiou, as an 
 equitable estate, for, by the provisions of the statute, the 
 purchaser at executiou sale, takes the legal as well as equi- 
 table estate, which would cut off the creditors. Sprinkle v. 
 Martin, 66 N. 0. 11. 55. 
 
 11. After the debts are paid, the resulting trust is liable 
 to sale under execution. But a mixed trust cannot be sold in 
 that way. Ibid. 
 
 12. Contingent interests, such as contingent remainders, 
 conditional limitations and executory devises are not liable to 
 be sold under execution. Hence where laud was devised to 
 A for life, aud at his death to such of his children as might 
 then be living, aud the issue of such as might have died 
 leaving issue, and if A should die without issue living at his 
 death, then to 13 in fee: It was held, that while A was living 
 unmarried and without children, the contingent interest of B 
 in the land could not be sold under execution, nor made 
 available iu any other way to the paymeut of a judgment 
 against him. Watson v. JJodd, 68 K. C. 11. 528. 
 
 13. Where, upou the sale ot laud, a bond to make title 
 upon the payment of the purchase money was given to the 
 purchaser and afterwards upou the assignment of his interest, 
 the money was paid by the assignee: It was held, that he r 
 before a (Wed was executed to him, had such au unmixed 
 trust as was liable to be sold under execution. Phillips v. 
 Davis, 61) N. C. 1?. 117. 
 
 IV. LEVY, SALE AND APPLICATION OF THE MONEY RAISED. 
 
 1. The equity of marshalling cannot be administered up- 
 on an application by a Sheriff for instructions for the distri- 
 bution of money raised upou sundry executions. Roberts v. 
 Oldham, 63 N. C. It 297. 
 
 2 Money paid to a deputy sheriff by the defendant, on 
 
EXECUTION— IV.— V. 170 
 
 certain executions then in such officer's hands, is by the law, 
 at once applied to such executions ; therefore, it cannot be 
 recovered from such officer by the defendant, upon a promise 
 by the former to account with him. Henry v. Rich, 64 JST. 
 0. R. 379. 
 
 3. If such money be misapplied by the officer, it is a ques- 
 tion betwixt him and the plaintijjs in the executions only. 
 Ibid. 
 
 4. A sale under execution, made at the court house, 
 whereby the general law sales are required to be made, with 
 the assent of the debtor in the execution is valid, notwith- 
 standing the requirements of a private local law directing 
 such sales to be made on the premises ; and the purchaser of 
 land at a sale so made at the court house acquires a good 
 title. Biggs v. Brickell, 68 N. 0. R. 239. 
 
 See (Amendment — Of the pleadings and proceedings ) 
 
 V. LIEN AND PRIORITY OF EXECUTIONS. 
 
 1. If an execution by its own teste be upon an equal foot- 
 ing with executions in behalf of other persons, it will not be 
 postponed because, being an alias, the original upon which 
 it issued was indulged. Roberts v. Oldham, 63 N". 0. R. 297. 
 
 2. The rule, that the lien ot an alias execution relates to 
 the teste of the original, is not affected by the fact that the 
 alias issued from the Court of another county, whilst the- 
 junior execution (of the creditor contesting) issued from the 
 Court of the county where the property lies, and in point of 
 fact, was first levied thereupon. Allen v. Plummer, 63 N. 
 0. R. 307. 
 
 3. An execution placed in a sheriff's hands after sale un- 
 der other process, but before the return of the proceeds, can 
 not compeie therefor with the executions under which the 
 sale was made. Ibid. 
 
 4. If the collection of the money due upon the execution 
 of oldest teste be enjoined, such execution is not to be con- 
 sidered in applying the proceeds of a sale made whilst it and 
 other executions were in the hands of the Sheriff. Neivlin v. 
 Murray, 63 N. C. R. 566. 
 
 5. Process of execution issued during the pendency of an 
 injunction against the collection of the money due upon the 
 judgment, is without effect; and, even if the injunction be 
 dissolved by consent after the sale and before the return of 
 the process, such process will not share in the proceeds. Ibid. 
 
 6. It is not necessary that a writ of execution shall be 
 
180 EXECUTION— V. 
 
 made returnable to the next term after that at which it was 
 tested. Faircloth v. Ferrett, 63 N. E. (540. 
 
 7. The fact that the older writs of Ven. Ex. are affected 
 by the Stay Law, in a case where the property levied on was 
 sold by writs not so affected — does not change the rule that 
 the proceeds of sale by a Sheriff are to be applied to the exe- 
 cution in his hands. Dunn v. Nichols, 03 N. 0. E. 107. 
 
 8. The Fi. Fa. clause attached to a writ of Yen. Ex. has 
 not the force of an alias Fi. Fa., but is dependent upon the 
 result of the sale under the Ven. Ex.; when, if such sale be 
 insufficient for the purposes of the execution, it for the first 
 time becomes operative. Ibid. 
 
 9. Where personal property was sold under a junior exe- 
 'cution, before it was known what would be the result of a sale 
 under a Ven Ex. of older date, levied on land: held, that its 
 proceeds were appropriated to such execution. Ibid. 
 
 10. The Circuit Court of the United States, is not, in any 
 sense, a Foreign Court; its judgments and process bind pro- 
 prio vigore, and create legal rights, which the State Courts 
 are bound to recognize, and, will enforce when the estate or 
 property, subject to the right, comes within their control. 
 Coughlan v. White, 60 N. C. E. 102. 
 
 11. Executions issued from the United States Courts 
 create a lien from their teste. Hid. 
 
 12. Where a judgment was obtained, in the Circuit Court 
 of the United States, and execution was issued thereon and 
 levied upon the land of the defendant in said execution, and 
 when a sheriff had other executions from the State courts, 
 against the same party, issued upon judgments, some of 
 which were of lien before and others after, the teste of the 
 execution from the Circuit Court, and the sheriff had levied 
 upon and sold the land of the defendant: held, that the 
 plaintiffs in the execution from the United States Court were 
 entitled to the residue of the money in the hands of the 
 Sheriff after satisfying the judgments of a prior lien to theirs, 
 and that upon a rule iu the Superior Court, the Judge should 
 have ordered the application accordingly. Ibid. 
 
 13. The wrongful refusal of a court to permit a judgment 
 creditor to have executiou on his judgment, does not operate 
 (upon the abolition of such cou^t, pending an appeal from 
 such refusal) to impair any lien acquired theretofore, or which 
 might have been acquired thereafter, but for such refusal, 
 under the maxim actus legis nemini facit injuriam. lsler v. 
 Broivn, 66 N". C. E. 556. * 
 
 14. Hence, where, after judgment obtained in 1861, and 
 executions regularly kept up thereon, a motion was made by 
 
EXECUTION— V.— VI.— VII. 181 
 
 a judgment creditor in I860, in one of the late County Courts 
 for execution upon his judgment, which was wrongfully 
 refused, and pending an appeal therefrom, such court was 
 abolished : it was held, that one who purchased from the 
 debtor pending the appeal, took the legal estate, but subject 
 to such lien as would have been acquired, had execution 
 issued. 1 hid. 
 
 15. In snch a case, if the judgment creditor had not a 
 complete lien upon the estate of his debtor, he had at least 
 an inchoate lien, with a right to perfect it by issuing an exe- 
 cution ; his proceeding to cause execution to be issued, con- 
 stituted a lis pendens, of which every one is held to have had 
 notice, and a party purchasing from the judgment debtor, 
 pending the proceedings, is considered as dealing with him 
 under exactly the same conditions, and subject to the same 
 liens, as if the County Court had not refused an execution, 
 and the same had been regularly issued. Ibid. 
 
 16. The creditor so delayed must be placed in statu quo, 
 and as a corollary, any such purchaser is affected with notice 
 by a presumption juris et dejure. Hid. 
 
 17. The above stated rule is founded on the maxim 
 pendente lite nihil innovetiir, and is sustained by considera- 
 tions of public policy. Ibid. 
 
 See (Execution — Supplemental Proceedings 6, 7.) 
 
 VI. WHAT MAY BE RECEIVED UNDER, EXECUTION. 
 
 1. A party has a right to instruct a sheriff to collect in 
 specie; but the latter in the absence of instructions to the 
 contrary, is justified in receiving currency, i. e., whatever is 
 passing currently in payment of debts of the character of 
 that which he has to collect. Atkins v. Mooney, Phil. L. P. 
 31. 
 
 2. In the present condition of the Government and the 
 courts, and as the process of tbe courts is now controlled, a 
 plaintiff in execution can only collect currency, or United 
 States Treasury notes. Therefore, in assessing damages, the 
 jury should estimate the value of the demand in currency. 
 Gibson v. Groner, 03 X. C. R. 10 
 
 VII. SUPPLEMENTAL PROCEEDINGS. 
 
 1. The defendant, by a decree in the Supreme Court, had 
 recovered of the plaintiffs a sum of money; whilst the exe- 
 cution was in the hands of the sheriff the plaintiffs recovered 
 
1 82 EXECUTION— VII. 
 
 from the defendant, by judgment before a magistrate, a like 
 amount, — being for items in their account not allowed in the 
 case in the Supreme Court; these latter judgments were 
 docketed, and executions were taken out upon them and 
 returned nulla bona; the plaintiffs then asked for an order to 
 have the amount of the decree in favor of the defendant 
 applied to their judgments, (C.C. P., s. 264:) held, that they 
 were entitled to such relief. Hogan v. Kirhlaud, 03 N. C. R.' 
 250. 
 
 2. Objections, that the judgments were obtained subse- 
 quently to the decree, and, that the latter was rendered in 
 Equity — as also, in the Supreme Court, are not material. 
 
 3. The receiver under supplementary proceedings, provi- 
 ded in C. C. P., s. 270, must be appointed by the Judge, and 
 not by the Clerk. Parks v. Sprinlde, 64 N". C. R. 637. 
 
 4. In a race of diligence between creditors under such 
 proceedings and appointment, if the personal property sought 
 to be subjected be such as may be levied on and seized, priority 
 is to be tested by precedence in the appointment of the 
 receiver; in case a receiver were applied for earlier by one, 
 but another obtained an earlier appointment, it seems that 
 priority will be determined by the date of application. Ibid. 
 
 5. Therefore, where the judgment had been obtained and 
 docketed by the plaintiff at Wilkes Court against one Mar- 
 tin, and the latter upon examination said that one Shuford, 
 a non-resident of the State, but at the time in Catawba 
 County, was indebted to him, and a receiver was appointed 
 by the judge on the 27th cf April, 1870, and an older served 
 upon Shuford to answer upon 5th of May ; where, also, the 
 defendant, at same Court and term, likewise obtained and 
 docketed a judgment against Martin: on the 28th of April, 
 docketed it in Catawba County: on the 29th, obtained an 
 order from the Clerk of Catawba Court for Shuford to answer, 
 who answered on the same day, and immediately paid a part 
 of his debt into the Clerk's office ; the Clerk on the same day 
 being notified of the appointment of the plaintiff's receiver, 
 and on the next day paying the money received by him to 
 the defendant : held* that this payment by the clerk was in 
 contempt of the Judge's order, and that the Judge should 
 have compelled him to pay the amount again to the plaintiff's 
 receiver, to be held subject to the Judges future orders. 
 Ibid. 
 
 6. Where a debtor executes a deed in trust to a trustee 
 to secure certain debts therein mentioned, aud after the reg- 
 istration of the deed, a creditor obtains judgment and has 
 
EXECUTION— YII. 183 
 
 the same duly docketed ; the judgment under the provisions 
 ■of C. C. P., sees. 254, 503, is a lien upon the equitable estate 
 of the debtor. McKeithan v. Walker, 66 X. 0. E. 95. 
 
 7. The lien thus acquired cannot be enforced by a sale 
 under execution. In order to sell an equitable estate not lia- 
 ble to a sale under execution, the plaintiff in the execution 
 must resort to his action (as formerly, to bill in equity,) to as- 
 certain the rights of all parties interested and to enforce his 
 lien. Ibid. 
 
 8. The purpose of the 0. C. P., sees. 204, 266, was to give 
 a remedy by ''Proceedings Supplemental to Execution," to a 
 plaintiff only in case the defendant had no known property 
 liable to execution, or to what is in the nature of execution, 
 proceedings to enforce a sale to satisfy the debt. 1 bid. 
 
 9. Supplemental proceedings may be commenced before 
 the sale of the property levied on, on affidavit, or other proof 
 of its sufficient value. But no final order can be made, ap- 
 propriating to the creditor any property discovered, until the 
 property previously levied on has been exhausted. Ibid. 
 
 10. Under sections 264 and 266, C 0. P., there is a dis- 
 tinction made in the requirements for proceedings supple- 
 mentary to execution, where the execution is returned unsat- 
 isfied, and where the execution is issued, but before its re- 
 turn ; in the former case, an affidavit that the execution has 
 been returned unsatisfied, and that the defendant has prop- 
 erty, orchoses in action, which ought to be subjected, is suf- 
 ficient to warrant the proceedings ; in the latter, the affidavit 
 should show that the debtor has no property which can be 
 reached by execution, and that he has property, or choses in 
 action, which he unjustly refuses to apply to the satisfaction 
 of the judgment. Hutchinson v. Symons, 67 X. 0. R. 156. 
 
 11. The purpose of the Code was, to give proceedings 
 supplementary to execution, only in case the debtor has no 
 property liable to execution, or what is in the nature of the 
 execution, to-wit : proceedings to euforce sale. Ibid. 
 
 12. The proper construction of the act of 1812, in relation 
 to the sale of trusts and equities of redemption under exe- 
 cution, discussed by Pearson, C. J. Ibid. 
 
 13. Where a judgment was rendered in one county, and 
 docketed in another, proceedings supplementary to execution 
 should be instituted in the county in which the judgment 
 was rendered, as the action is pending in that county until 
 the judgment is satisfied. Ibid. 
 
 14. It is the right of every creditor to have his debt paid 
 .to himself, ami a law, authorizing payment to be made to 
 
184 EXECUTION— VII.— YIII. 
 
 another person, without the consent of the creditor, is in 
 derogation of this common right, and ought to be strictly 
 construed. Howie v. Miller, 01 N. 0. E. 459. 
 
 15. Therefore, as sec. 205, 0. 0. P., authorizing " any 
 person indebted to the judgment debtor to pay to the sheriff 
 the amount of his debt, &c," is worded in the singular num- 
 ber: it was held, that said section, especially when consid- 
 ered in connection with sections 204 and 200, did not apply 
 to cases where there are several dehtors in the same judg- 
 ment. Ibid. 
 
 See (Husband and Wife — Conveyances by them 0.) 
 
 VIII. OF VOID AND IRREGULAR EXECUTIONS AND HOW SET ASIDE. 
 
 1. The "year and a day" mentioned in the Eev. Code, 
 ch. 31, sec. 100, runs from the issuing, and not from the 
 return of the execution ; therefore,, where the former execu- 
 tion had been issued February 14th, 1855, a second purport- 
 ing to be an alias issued May 3d, 1800, was set aside as 
 irregular. Simpson v. Sutton, Phil. L. E. 112. 
 
 2. The right to have an execution set aside, which had 
 been issued before the date to which it had been postponed 
 by au order of record, is personal to the defendant therein ? 
 therefore, where, upon the confession of a judgment at June 
 Term, 1800, an entry was made, " Execution stayed by order 
 of plaintiff until after April Term, 1807," and upon the de- 
 fendant's conveying his property in trust, the plaintiff ordered 
 execution to issue before such term : held, that the court 
 AYould not set aside such execution at the instance of the 
 trustee. Shelton v. Fels, Phil. L. E. 178. 
 
 3. The 5th section of the Ordinance of 1800, entitled 
 " An Ordinance to change the jurisdiction of the Courts," 
 &0,., does not apply to prevent the issue of a writ of venditioni 
 exponas, to enforce a levy upon land made more than a year 
 and a day previously. Mardre v. Felton, Phil. L. E. 279. 
 
 4. The 5th section of the Ordinance of 1800, entitled 
 "An Ordinance to change the jurisdiction of the courts," 
 &c , does not extend to a writ of scire facias asking for a- 
 ven. ex. Riddick v. Uinton, Phil. L. E. 291. 
 
 5. Where a scire facias to enforce the levy of an execu- 
 tion had been dismissed in the County Court : held, that it 
 was proper for the Superior Court, upon reversing that order; 
 to award a procedendo. Overton v. Abbott, Phil. L. E. 293. 
 
 0. An action is inadmissible as a mode of obtaining relief 
 against an execution for irregularity : the proper relief is, as- 
 
EXECUTION— VIIL— EXECUTORS, &c— I. 185 
 
 formerly, by motion to set it aside ; notice of the order nisi 
 made thereunder, operating in the meantime, as an injunc- 
 tion against the process. Foard v. Alexander, GO X. 0. R. GO. 
 7. Where an action had been resorted to: held, that it 
 could not be treated as a motion in the original cause ; 1st, 
 because not so entitled ; 2d, because the only relief prayed 
 for therein, was, a perpetual injunction. Ibid. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 I. Who entitled to administration. 
 II. What interest they take in the 
 estate. 
 
 III. Administrator de bonis non. 
 
 IV. Executor de son tort. 
 
 V. In another State, what they 
 
 may do in this State. 
 VI. Of the effect of making a debtor 
 executor. 
 
 VII. Of co-executors and administra- 
 
 tors. 
 
 VIII. Of sales by them and their pur- 
 
 chases at their own sales. 
 
 IX. 
 
 Of suits by them. 
 
 X. 
 
 Of the giving them time to 
 
 
 plead. 
 
 XI. 
 
 Of the sale of land for assets. 
 
 XII. 
 
 Of their liability to creditors. 
 
 XIII. 
 
 Of their liability to legatees 
 
 
 and next of kin. 
 
 XIV. 
 
 Of distribution and advance- 
 
 
 ments. 
 
 XV. 
 
 Refunding bonds. 
 
 XVI. 
 
 Commissions. 
 
 I. WHO ENTITLED TO ADMINISTRATION. 
 
 1. One who has precedence in a claim for letters of ad- 
 ministration loses such right not by delay merely, but by un- 
 reasonable delay, which is a matter of law. Hughes v. Pip- 
 kin, Phil. L. B. 4 
 
 2. Letters ot administration having at the first term of 
 the court been granted to one not primarily entitled, upon 
 application at the next term by the person primarily entitled 
 and upon his showing cause for not having applied before, 
 held that it was the duty of the court to set aside the former 
 letters, and to issue letters to the second applicant. Ibid. 
 
 3. Where a will was proved in common form, and, because 
 uo executor was named therein, administration cum testamento 
 (fiuie.ro was granted: held, that upon a contest in regard to 
 such will occurring subsequently, and a consequent revocation 
 of the probate, the previous grant of letters was not thereby 
 necessarily annulled. Floyd v. Herring, 04 N*. 0. R. 409. 
 
186 EXECUTORS AND ADMINISTRATORS— II.— Ill 
 
 II WHAT INTEREST THEY TAKE IN THE ESTATE. 
 
 1. Ad admistrator has no estate in the realty of the 
 deceased ; therefore, he cannot mantain an action to recover 
 possession of realty, under the proceedings " for the relief of 
 Landlords," authorized by act of 1803, c. 48, and 1864 c. 12. 
 Floyd v. Herring, 64 N. C. R. 409. 
 
 2. Where, upon a lease of turpentine boxes for four years, 
 the lessee covenanted to pay the lessor at the end of each year 
 a certain rate per thousand boxes, and the lessor died before 
 the expiration of the second year leaving a will devising the 
 land, it ivas held, that the executor could only recover for 
 the rent of the first year, the rent for the remaining years 
 having followed the reversion to the devisee. Rogers v. Mc- 
 Kensie, 65 N. 0. R. 218. 
 
 III. DE BONIS NON. 
 
 1. The rights of an administrator, de bonis non, relates to 
 the death of the intestate, and he is bound only by such law- 
 ful acts of the previous administrator as were done in due 
 course of administration ; for any devestavit on the part of 
 the former administrator, the administaator de bonis non 
 ought to recover the value of the goods wasted, by an action 
 on the bond of his predecessor; but where the sureties on 
 the bond are insolvent, such action would be unavailing, and 
 therefore, unnecessary. Badger v. Jones, (Hi N. R. 305. 
 
 2. It is the duty of the administrator, de bonis own, to 
 complete the administration of the estate, by collecting the 
 unadministered assets, applying them in payment of debts, 
 and when there are no personal effects, to obtain license to 
 sell the real estate. Ibid. 
 
 3. An action commenced before the adoption of the 0. 
 0. P., in the name of an administrator de bonis non on a bond 
 given to the first administrator as such may be sustained, 
 although such administrator de bonis non has paid it over to 
 one of the next of kin of the intestate in a settlement of the 
 estate with him, and has taken his receipt therefor. Setzer 
 & Rhodes v. Lewis, 69 N. 0. R. 133. 
 
 4. A privity exists between an administrator de bonis non 
 and the first administrator, as well as in the case of plaintiffs, 
 as of defendants, so that the former succeeds to all the 
 rights of the intestate, in respect to personal property, which 
 the first had not fully administered ; and a judgment against 
 the first administrator, is conclusive evidence against the 
 
EXECUTOBS, &c— III.— IV— V.— VI. 187 
 
 administrator de bonis non, in an action to renew it. Thomp- 
 son v. Badhan, 70 X. 0. E. 141. 
 
 5. Such judgment may, however, be impeached for fraud 
 by the administrator de bonis non, either by a motion in the 
 cause, or by answer to plaintiff's action to revive it. Ibid. 
 
 See (Executors and Administrators — Of the sale of land 
 for assets, 39.) 
 
 IV. EXECUTOR DE SOX TORT. 
 
 1. Evidence to charge one as executor de son tort, need not 
 be sufficient to warrant a conviction of felony. Israel v. 
 King, 69 JS". 0. E. 373. 
 
 2. In seeking to charge a widow as executrix de son tort, 
 the value of her year's provision should be deducted from the 
 assets found to be on hand. Ibid. 
 
 3. The personal representative of a deceased administra- 
 tor is a necessary party to a suit against his widow, seeking 
 to charge her as executrix de son tort. Ibid. 
 
 V. IN ANOTHER STATE WHAT THEY MAY DO IN THIS STATE. 
 
 1. A, domiciled in Virginia, dies, leaving a note on a 
 resident of this State ; his administrator being duly qualified 
 in Virginia, sends said note to an attorney in this State, with 
 instructions to collect, compromise, or sell the same, as he 
 may deem advisable : held, that a transfer of said note by an 
 administrator passed the legal title thereto to the purchaser. 
 Fikldick v. Moore, (J5 K 0. E. 382. 
 
 2. Although A's administrator appointed in Virginia 
 could not have maintained a suit in his name in this State 
 against the maker of the note, yet for all purposes in iMiis, 
 he was as much the owner of the note as he was of any per- 
 sonal property which he took into his possession in Virginia, 
 and brought to this State and sold. Ibid. 
 
 VI. OF THE EFFECT OF ilAKlNO A DEBTOR EXECUTOR. 
 
 The Act (R. C, ch. 46, s. 31,) which provides that "the 
 appointing any person executor shall not be a discharge of any 
 debt or demand due from him to the testator," includes cases 
 where the executor acts under the appointment, as well as 
 those where he does not. Moore v. Miller, Phil. Eq. R. 359. 
 
188 EXECUTORS, &c— VII.— VIII. 
 
 VII. OF CO-EXECUTORS AND ADMINISTRATORS, &c. 
 
 1. The complainant having qualified as one of the execu- 
 tors of the will before he knew of the existence of a marriage 
 agreement, is not estopped from filing a bill against his co- 
 executor for property in the hands of the latter, but claimed 
 by the complainant under the agreement. Harrington v. 
 McLean, Phil. Eq. R 258. 
 
 2. In a suit charging two executors with negligence, in 
 investing in Confederate money, although the proofs show 
 that only one of them was active in so doing, yet if there be 
 no allegation in the pleadings, sustained by full proofs, that 
 the other dissented from such investment, he also will, be 
 chargeable with the loss. Kincade v. Coriley, 64 N". 0. R. 387. 
 
 3. The office of executorship is joint, and if one or two 
 executors die, the office survives, and the survivor is entitled 
 to take into possession all the estate of the testator, so as to 
 finish the administration of the estate. McDowell v. Clark, 
 68 N. C. R. 118. 
 
 4. The executor of one of two executors of a person de- 
 ceased cannot be sued without joining the surviving execu- 
 tor, in vwhose hands the assets of the testator are supposed 
 te be. Ibid. 
 
 VIII. OF SALES BY THEM AND THEIR PURCHASES AT THEIR OWN SALES. 
 
 1. Where an executor buys property at his own sale, 
 either directly or indirectly, such sale will (as of course) be 
 set aside at the instance of the parties interested. Stilly v.. 
 Bice, 67 N. C. R. 178. 
 
 2. The agent who bids in the property at such sale is not 
 a necessary party in a proceeding to set it aside. Ibid. 
 
 3. It is against the policy of the law to allow an Admin- 
 istrator to buy at his own sale : and when he does so, it is 
 at the option of those interested to treat the sale as a nullity 
 and set it aside, or to let it stand and demand a full price. 
 Froneberger v. Lewis, 70 N\ C. R. 456. 
 
 4. Where au executor is authorized to sell the lands of 
 his testator in his discretion, this court will not interfere by 
 entertaining an application for a license to sell. Such au 
 executor may be compelled to sell, when third persons have 
 a right to compel him to do so; and the court will restrain 
 an abuse of his discretion. Ilinton v. Hinton, 70 N. 0. R. 
 730. 
 
EXECUTORS, &c— IX.— X.— XI. 189 
 
 IX. OF SUITS BY THEM. 
 
 1. Executors who had qualified in South Carolina, and 
 afterwards removed property from that State into this, may 
 maintain a suit here tor such property, without again proving 
 the will, and taking out letters : in such case they need only 
 show a duly certified copy of the record, &c. in South Caro- 
 lina, as evidence of their title. Beckham Y.Whittkowski, G4. 
 N. C R. 404. 
 
 2. Where an administrator agreed with two persons that 
 they should buy certain articles of personal property, and 
 give their note to the administrator therefor, and that the 
 property was to be purchased for the common benefit of all 
 three of the parties, and that each one should pay off and 
 discharge one-third part of the note so given : held, that upon 
 a suit upon said note to the administrator, it was competent 
 for defendants to offer parol testimony to prove the agree- 
 ment betweeu the parties, and the plaintiff, under the C. C. 
 P., could recover of defendants but two-thirds parts of said 
 note. Clark v. Clark, 65 N. C. R. 055. 
 
 3. Such an agreement is not legal, unless it be shown that 
 the ereditors of decedent, or his distributees, may be preju- 
 diced by such conduct on the part of the administrators. 
 Ibid. 
 
 4. Though it may be that a note payable to a testator 
 may be assigned by one of the three executors, yet a note 
 payable to three persons as executors of their testator cannot 
 be assigned by one of them without the concurrance of the 
 others, so as to enable the assignee to sue the makers either 
 for the whole-amount of the note, or for any part of it ; the 
 Code of Civil Procedure, sec. 55, not being applicable to such 
 a ease. Johnson v. Mangum, 05 X. C. It. 140. 
 
 X. OF THE GIVING THEM TIME TO PLEAD. 
 
 Courts of Equity are not bound by the statute allowing 
 executors and administrators nine months to plead. Marsh 
 v. Grist, Phil. Eq. E. 349. 
 
 XI. OF THE SALE OF LAND FOR ASSETS. 
 
 1. The act of 184G, ch. 1, (Rev Code, c. 40, s. 44 ) giving 
 to an executor a right to tile a petition to sell real estate, 
 &0., does not apply to a case in which he has full power to 
 soil such estate under a will. Wileii v. Wiley. Phil. L. It. 
 181. 
 
190 EXECUTOKS AND ADMINISTRATORS— XL 
 
 2. Nor does it apply in such case, even if the executor 
 has by accident lost the personal estate of his testator and for 
 that reason alone desires to resort to the realty, his remedy 
 in such case being only in equity. Ibid. 
 
 3. The remedy provided by the act applies only to cases 
 in which otherwise the creditor would be compelled to resort 
 to a scire facias against the heirs. Ibid. 
 
 4. A bill seeking to compel an executor to execute a 
 general power to sell real estate for the payment of debts, 
 cannot be maintained without making the devisees of such 
 estate parties. Ibid. 
 
 5. A bill by an executor, praying for leave to sell land in 
 order to pay debts, will not be entertained unless it alleges 
 distinctly that the personalty has been exhausted. Wiley v„ 
 Wiley, 63 N. 0. R. 182. 
 
 6. Where an executor made sales of personal property in 
 November, 1861, and April, 18(32, on six months' credit, for 
 Confederate currency, and received the proceeds when due : 
 held, that prima facie he was guilty of laches in not disposing 
 thereof in paying debts, or (failing in that) in not investing 
 it some other way — but keeping it to become worthless in 
 his hands. Ibid. 
 
 7. The report of an administrator, who had been licensed 
 to sell land by a County Court, was returned and confirmed, 
 and an order made, to collect and make title : held, that upon 
 its appearing afterwards, by the results of a judgment and 
 execution, that the purchase money could not be collected, 
 it was not competent for the Comity Court to set aside the 
 sale. The jurisdiction of the Court in cases of such sales is 
 at an end upon the confirmation of the sale, and the order to 
 collect and make title. Evans v. Singeltary, 63 N. C. R. 205. 
 
 8. The declaration as to the state of the assets made in 
 the course of a petition by an administrator to sell lands, is 
 not binding upon the heirs, &c, and, under our former sys- 
 tem, those heirs had a right to a bill in equity against the 
 administrator, for an account of his dealings, &c , and for an 
 injunction against a sale in the meantime. Finger v. Fin- 
 ger, 64 N. C. R. 183. 
 
 9. Where the deficiency in personal assets resulted from 
 accident, after they had come into the hands of the adminis- 
 trator, (here, Emancipation, &c.,) held, that the courts of law 
 (formerly) were not competent to order a sale of lands to pay 
 debts, under the act of 1846, but that application must be 
 made to a Court of Equity. Ibid. 
 
 10. The receipt by an administrator in September, 1863, 
 
EXECUTORS AND ADMINISTRATORS— XI. 191 
 
 of Confederate money upon sales of personalty made in Au- 
 gust before, no more appearing, does not exhibit a want of 
 ordinary care in an administrator. Ibid. 
 
 11. Under the former system, a County Court had no 
 power, in a petition by an administrator to sell lands, &c, — 
 to order an account which could bind the next of kin: this 
 could be done only in a proceeding the direct object of which 
 was such an account. Kerns v. Wallace, 04 N C R. 187. 
 
 12. One who alleges that, as last and highest bidder, he 
 had purchased lands at a sale made by an administrator under 
 a license from the (late) County Court, and tendered a good 
 note for the purchase money, but that the administrator 
 refused to make title, and did not report the sale to court, as 
 was his duty, but had conveyed to a third person : should have 
 sought relief by application to the court which granted the 
 license, and in the case, made by the petition to sell, and can- 
 not maintain a bill in equity against the administrator and 
 the purchaser, asking for title, &c. Mason v. Osgood, 01 
 X. C. R. 467. 
 
 13. According to the plaintiff's case, the administrator 
 had no license to sell to the party to whom he had conveyed, 
 and therefore such a sale was a nullity, and the. plaintiff could 
 nor proceed against him under the idea that he was a trustee, 
 &c Ibid. 
 
 14. Real estate is not assets for the payment of the debts 
 of descendant before the same has been sold, and the pro- 
 ceeds received by the administrator. Yaugn v. Dcloatch, 05 
 N. C. R. 378 
 
 15. Whether an administrator can be sued on his bond 
 where he has been guilty of negligence in not applying for 
 and obtaining an order to sell the real estate of his intestate : 
 (J it ere f Ibid. 
 
 10. If a petition be filed by an administrator for the sale 
 of land for the payment of the debts of the intestate, and the 
 heir-at-law be made a party defendant, and the court ad- 
 judges that the sale is necessary, and orders it, the heir-at- 
 law will be estopped to deny the title of his ancestor, whether 
 the order was made after a defence, or by confession or de- 
 fault; but, if the heir die insolvent, so that it becomes neces- 
 sary to sell his land to pay his debts, then as the estoppel 
 could only operate as a conveyance, and would be liable to 
 l»e impeached by creditors as voluntary and therefore frau- 
 dulent as to them, his administrator, as representing credi- 
 tors, has the light to impeach it on the same ground as not 
 binding on him. Hardee v. Williams, 05 N. O R. 30. 
 
192 EXECUTORS AND ADMINISTRATORS— XL 
 
 17. A proceeding to restrain the operation of a judgment 
 to sell lands for the payment of the debts of an intestate as 
 an estoppel against the administrator of an heir-at-law whose 
 land is required for the payment of his debts should be com- 
 menced in the Superior Court. But if such personal repre- 
 sentative had commenced proceedings for the sale of the land 
 in question for the payment of the debts of the heir in the 
 Court of Probate and the administrator of the ancestor plead 
 his judgment as an estoppel, the plaintiff may in that Court 
 reply the fraud which would be produced by allowing the 
 judgment to operate as an estoppel ; and the Court of Prob- 
 ate might thus retain the jurisdiction of the cause which it 
 had originally acquired. Ibid. 
 
 18. An administrator has no right to an order for the sale 
 of land for the payment of the debts of his intestate until the 
 personal estate is exhausted, and if he has made a distribu- 
 tion of part of the personal effects among the next of kin, the 
 value of such effects must be charged against him, in taking 
 an account for the purpose of ascertaining whether he has 
 exhausted the personal estate of his intestate. And the same 
 rule will apply as to personal effects advanced to the widow 
 as a distributee, but not to such as she may take for her 
 year's provisions. Bland v. Hartsoe, 65 N. C. E. 204. 
 
 19. Where the proceeedings are taken, upon a petition by 
 an administrator to sell land for the payment of debts, before 
 the Judge of Probate, and he orders a sale of the land and it 
 is sold, and the puachaser, upon the confirmation of the sale, 
 gets a deed for the laud before the purchase money is paid, 
 though the proceedings may be very irregular, yet the heirs- 
 at-law cannot have the sale set aside by the Judge of the 
 District at the regular term of the Superior Court. Hyman 
 v. Jamigan, 65 N. C- R. 96. 
 
 20. A petition by an administrator to sell laud for the 
 payment of debts is a special proceeding, and belongs to the 
 original jurisdiction of the Probate Court : and parties inju- 
 red by such proceedings ought to apply to the Judge of 
 Probate for relief, and if he refuses to act, or acts errone- 
 ously in the matter, an appeal will lie to the Judge of the 
 District in Court. Badger v. Jones, 06 N. C. R. 305. 
 
 21. On a petition to sell land by an administrator for the 
 payment of debts, it is erroneous for the Judge of Probate 
 to make an order for the sale of the land before the parties 
 defendant have been served with process by publication 
 when they were non-residents: or, before he had adjudged 
 upon the proofs required by the C. C. P., sec. 89, that the 
 
EXECUTORS AND ADMINISTRATORS— XI. 193 
 
 defendants had been regularly served with process by publi- 
 cation. Ibid. 
 
 22. On a petition by an administrator to sell land for the 
 payment of debts, where the heirs are minors, it is erroneous 
 for the Judge of Probate to make an order of sale, where 
 there is no order for the appointment of the person who ap- 
 pears as guardian ad litem ; and no order for such appoint- 
 ment can be made until the summons be properly served, 
 and the other requirements of the 0. 0. P., sec. 59, be com- 
 plied with. Ibid. 
 
 23. It is erroneous for a Judge of Probate to order a deed 
 to be made to a purchaser of laud sold by an administrator 
 to pay debts, uutil the purchase money has been paid. Ibid. 
 
 24. The sale of real estate by the heirs at law, within two 
 years after the death of the intestate, is void as against the 
 •crediters and the administrator. Rev. Code, ch. 46, sec. 61, 
 Acts of 1868-'6i), chap. 113, sec 105. Badger v. Jones, 66 
 X. 0. R. 305 
 
 25. Where an administrator sold land of his intestate for 
 the payment of debts, and previous to the sale an agreement 
 was made between him and the creditor of the estate, "that 
 if he would buy the laud he should have credit on certain 
 claims and notes over which he had control, and which were 
 due from the intestate, to the amount that he (the adminis- 
 trator) could pay pro rata;'''' and the creditor on the faith of 
 such agreement brought the land : held., that in an action on 
 the bond given for the purchase money, the defendant had a 
 right to give in evidence the agreement, and was entitled to 
 credit according to its terms : held farther, that such agree- 
 ment need not be reduced to writing, and that it was not con- 
 trary to the policy of the law. Norton v. Edwards, 66 N. 0. 
 R. 367. 
 
 26. To an action by an administrator, appointed before 
 1st July, 1869, on a note executed to himself as administra- 
 tor for the purchase of land sold under a license from Court, 
 a judgment quando, obtained previously by the purchaser, 
 against such administrator, is inadmissible as a defence, eith- 
 er by way of set-oil or counter-claim. Brandon v. Allison, 
 M N. C. R. 532. 
 
 27. Whether such would be the case if there were no oth- 
 er debts against the estate, and the defendant was certainly 
 entitled to have the assets applied to his claim, qnere. Ibid. 
 
 28. Under the act, 1868-'69, chap. 112, sab ch. 5, sec. 1, 
 enacting that "When the personal estate of a decedent is iu- 
 sufficient to pay debts, &c., the executor or administrator 
 
 13 
 
194 EXEOUTOES AXD ADMINISTBATOBS— XL 
 
 may apply to the Superior Court, by petition, to sell the real 
 property of the decedent for the payment of debts :" it was 
 held, that the word may, in this, as in every act imposing a 
 duty, means shall, and that by Superior Court is meant the 
 Clerk of said Court. Pellitier v. Saunders, 07 X. C. E 2G1. 
 
 29. When the personal estate of a decedent is insufficient 
 to pay his debts, and an administrator or executor refuses, or 
 unduly delays, to apply to the Court for the sale of the real 
 estate, the Clerk of the Superior Court as Probate 2 udge has 
 jurisdiction, and may, at the instance of a creditor, compel 
 such person to perform his duty. Ibid. 
 
 30. The act of 1846, ch 48, sec. 53, gives administrators- 
 express authority to sell all the interest of a deceased debtor 
 in laud possessed by him, whether legal or equitable; and 
 also authorizes the administrator to sell auy land his intestate 
 may have conveyed for the purpose of defrauding creditors. 
 Waugh v. Blevins, 68 X. C. E. 167. 
 
 31. Where, under the former practice, it was necessary to 
 sell the land of an intestate to pay his debts, after the plea 
 of fully administered had been found in favor of the 
 administrator, the record showed an order for a sci. fa. to be 
 issued to the " heirs '" of the intestate without naming them, 
 but showed that they were named in the order appointing a 
 guardian ad litem, and then, though the fact that a sci. fa* 
 had issued was not stated, it appeared that there was an 
 entry of judgment according to sci. fa., and thereupon the 
 land was condemned and ordered to be sold: It was hell, 
 that these proceedings were sufficient to uphold the sale of 
 the land made under them. Phillips v. Davis, 69 X. C. B- 
 117. 
 
 32. Where an administrator wastes the personal assets, 
 and does not apply them to the payment of the debts of his 
 intestate, and then is removed for misconduct and another 
 person is appointed administrator de bonis non, the latter 
 must sue on the bond of the former administrator, if the 
 sureties thereon are solvent, before he can apply by petition 
 for the sale of the land of the intestate. Latham v. Bell, 69* 
 X. C. E. L35. 
 
 33. Upon a petition by an administrator to sell laud for 
 the purpose of making assets to pay debts, any person who 
 claims to be the owner of the laud, has the right to be made 
 a party and to have an enquiry made as to his title in due 
 course of law. Gibson v. Pitts, 69 X. 0. E. 155. 
 
 34. In a proceeding to subject real estate to sale for as- 
 sets, after a report of the sale is returned and confirmed, the 
 
EXECUTORS AND ADMINISTRATORS— XL 195 
 
 Judge of Probate, upon propercau.se shown, has the right to 
 set the sale aside, and order a resale of the property. 
 Lovinier v. Pearce, 70 X. 0. R. 167. 
 
 35. And although the exercise of this right is discretion- 
 ary with the Judge of Probate, still it is such a matter of 
 legal discretion, involving a "matter of law or legal infer- 
 ence," that an appeal will lie from his decision. Ibl' 1 . 
 
 36. There are questions of fact, as distinguished from 
 issues of fact which the Probate Judge in cases before him, 
 and the District Judge in cases before him, may decide 
 without a jury. And in a motion made to set aside a sale, 
 it is not necessary for the Judge in case of appeal, to send to 
 the appellate court a separate statement of the facts upon 
 which his decision rests when the affidavits and counter- 
 affidavits for and against the motion accompanies the case. 
 Ibid. 
 
 37. In 1861, A, the heir-at-law of B, administered on 
 his estate; in 1862, less than two years, A, as heir-at-law, 
 agrees to sell certain lands belonging to the estate of B, to 
 C, receiving at the time the full value for it, but executed no 
 deed for the said land until the year 1864. In an action to 
 sell this land for assets to pay B's debts: it was held, that 
 although the agreement to sell in 1862, might have been 
 defeated by B's creditors, the deed from to A, in 1864, for 
 the same land was valid. Donolio v. Patterson, 70 N. 0. li. 
 649. 
 
 38. Held, further, that the act restraining the heir from 
 selling the land, of his ancestor within two years, Eev. Code, 
 chap. 46, sec. 61, is not a statute of limitation, which was 
 suspended by the act of 1861, chap. 4; nor is it affected by 
 the act of 1863, chap. 34, which provides that in computations 
 of time for the purpose of applying any statute, limiting any 
 action or suit, or any right or rights, or for the purpose of 
 raising a presumption, &c., the time elapsed since the 20th 
 day of May, which was in the year 1861, or which may elapse 
 until the end of the war, shall be excluded from the compu- 
 tation, Ibid. 
 
 39. In an application to sell land for the payment of debts 
 by an administrator debonisnon, with the will annexed, when 
 it appears that the first executor assented to and paid the 
 legacies of the testator's personal property, without paying 
 the debts, and that such executor had given a boud for the 
 faithful administration of the assets of his testator, one of the 
 sureties on said bond being at the time of the application sol- 
 vent, and that the personal property left by the testator was 
 
196 EXECUTORS AND ADMINISTRATORS— XII. 
 
 sufficient to pay his debts ; held, that the administrator de 
 bonis non, &c., must first sue on the bond of the executor 
 before he can obtain a license to sell the real estate, and that 
 the order directing a sale at that time was erroneous. Carl- 
 ton v. Byers, 70 N. 0. R. 691. 
 
 See (Trusts and Trustees, 20, 21.) (Widow— Of her 
 Dower, 15, 10, 34.) 
 
 XII. OF THE LIABILITY TO CREDITORS, &c. 
 
 1. An administrator is not bound to follow the assets of 
 his intestate into another State ; but he should hold the per- 
 sons in whose hands such assets are to au account for them, 
 if they prefer a claim against the estate in his hands. Colson 
 v. Martin, Phil. Eq. R. 125. 
 
 2. Courts of Equity in this State will not entertain juris- 
 diction of a bill against an executor or administrator to en- 
 force payment of a legal demand at the suit of a single credi- 
 tor; and upon demurrer such a bill will be dismissed. Wil- 
 Mns v. Finch, Phil. Eq. R. 335. S. P. Miller v. Moor, Phil. 
 Eq. R. 359. 
 
 3. A creditor cannot, merely as such, sustain a bill against 
 an executor, seeking to have his debt paid. Ibid 
 
 4. Upon the death of a non-resident, intestate, leaving as- 
 sets in this State, they are to be applied to the payment of 
 the claims of his resident creditors, if there be any such, in 
 the order prescribed by our law, and not by that of his domi- 
 cil. Carson v. Oates, G4 N. C. R. 115. 
 
 5. Such assets are to be collected, by an administrator ap- 
 pointed here, and not by the creditors. Ibid. 
 
 6. The " Supplemental proceedings," under the C C. P., 
 Title XI, eh. 2, do not apply to such a case, but are intended 
 to supply the place of the former proceedings in Equity where 
 relief was given after a creditor had recovered a judgment at 
 law, and was unable to obtain satisfaction under further legal 
 process. Where one who is charged in Supplemental proceed- 
 ings as holding property belonging to a judgment debtor, 
 claims such property as his own, the question cannot be de- 
 cided in the course of such proceedings, but must be settled 
 by an action. Ibid. 
 
 7. Whether an account in the handwriting of the party 
 charged, under a heading in the same handwriting, showing 
 that it was an account of one partner's indebtedness to the 
 firm, entered upon the partnership books, be a signed account, 
 within the statute heretofore prescribing the degrees of de- 
 
EXECUTORS AXD ADMINISTRATORS.— XII 197 
 
 ceased person's debts, Qucere? — but at all events it is no set- 
 tled account showing the partner's indebtedness to his co-part- 
 ner, but is merely an item in the general settlement of their 
 dealings in that connexion. Furman v. Moore, 64 X. C. R. 
 358. 
 
 8. An administrator, under oar former system, had no 
 right to retain a debt of lower dignity within the nine months 
 given him to plead, upon the ground that he had no notice of 
 debts of higher dignity. Ibid 
 
 9. Where an executor defendant at Spring Term, 1867, 
 had pleaded fully administered, and a reference had been had 
 under such plea, and a report made charging him with assets : 
 held, that the court had no power at a subsequent term, in 
 May, 1870, to allow the defendant to strike out such plea, 
 and to plead anew. Wright v. F tanner, 64 X. 0. R. 510. 
 
 10 Where the testator (dying in 186-3) was debtor, as 
 surety for a principal solvent until the emancipation, and his 
 personal property consisted of seventeen slaves bequeath (1 
 to the persons named as executors, which he had before 
 placed in their possession, and which remained there until 
 they were emancipated : held, that a creditor, who did not 
 present her claim, but who was unwilling to receive Confed- 
 erate currency for it, could not charge the executors with 
 laches in not selling such slaves for payment of debts, — even 
 in a case where they had not advertised for creditors to pre- 
 sent their claims, as required by statute. Fike v. Green, 64 
 X. C. R. 665. 
 
 11. Executors are not chargeable with land as assets. 
 Ibid. 
 
 12. Where the testator had died in Xovember, I860, and his 
 estate was afterwards rendered insolvent by the results of 
 the war: held, that the executors were not chargeable with 
 Confederate money, which, upon its refusal by the creditors 
 of the estate, they had divided amongst the legatees, without 
 taking refunding bonds; nor, with the value of the slaves 
 which they had allowed the legatees to take, or to retain ; 
 hut they were chargeable with the value of the other personal 
 property, so taken or retained ; nor, with the Confederate 
 money and bonds, and X. C. Treasury notes, remaining in 
 the hands of the executors; nor, with the value of personal 
 property sold by them in November, 1863, for Confederate 
 money. State, &c. t v. Hanner, 64 X. C. R. 668. 
 
 13. Where land was sold under execution for a debt due 
 to the testator, and his executors purchased it, paying for it 
 with the debt, and taking title to themselves : held, that it 
 
198 EXECUTOES AND ADMIXISTEATOES— XII. 
 
 was optional with the creditors of the estate to charge them 
 with the debt, or with the laud. Ibid. 
 
 14. An executor of a creditor is not required to admin- 
 ister upon the estate of a deceased debtor. Ibid. 
 
 15. After the institution of a suit against them by a cred- 
 itor, (here, in February 1868,) executors have a right, under 
 the act of 1866-'7, c. 59, to pay other debts, without a judg- 
 ment. Ibid. 
 
 l(j. In a case where the creditors of an estate refused to 
 receive Confederate money for their debts, it was held that 
 the executor was not chargeable for failing to sell slaves which 
 came into his hands in May, 1803, and afterwards lost by 
 emancipation ; but that he was chargable as for the subse- 
 quent hires of such slaves. Womble v. George, 64 X. C. E. 
 576. 
 
 17 An executor is not chargeable with the reuts and prof- 
 its of the realty. Ibid. 
 
 .18. He is not to be credited with sums paid for taxes due 
 upon the land after the testator's death; nor with money 
 advanced to procure supplies for the widow and her family 
 after her husband's death. Ibid. 
 
 19. An administrator is guilty of gross laches who sells 
 property ou a credit, and takes no other security than the 
 bond of the purchaser. Boaeman v. Pless, 65 X. 0. E. 374. 
 
 20. Under the act of 1868-'!), ch. 134, sub ch. 4, sec, 24, 
 explained by the act of 1869-'70, ch. 58, an executor who has 
 taken out letters testamentary since the 1st of July, 1869, 
 must pay all the debts due from the estate of his testator pro 
 rata, according to their classes ; and the testator cannot give 
 to a debt a preference over other debts of the same class by 
 a bequest of it to the creditor. Moore v. Byers, 65 X. C E. 
 240. 
 
 21. Au administrator, whose sale of the personal property 
 of his intestate has been, after due public notice, conducted 
 fairly and without any connivance with the widow, shall not 
 be held responsible because of her having purchased many 
 articles at a nominal or very low price on account of the by- 
 standers forbearing to bid against her. Woody v. Smith, 65 
 X. C. E, 416. 
 
 22. If an administrator has properly sold a horse, belong- 
 ing to the estate of his intestate and taken a note therefor, 
 lie may nevertheless rescind the sale and take back the horse, 
 provided he does it bona fide because he suspects the solvency 
 of the parties to the note, but in such case he must sell the 
 horse again' immediately, or he will be held liable for his value. 
 
EXECUTORS AND ADMINISTRATORS— XII. 199 
 
 at the time ; and lie must, if lie can, collect from the first 
 purchaser what the use of the horse was worth to him while 
 in his possession, or be held liable for that also. Bland v. 
 Hartsoe, Go N. 0. R. 204. 
 
 23. Au administrator will not be allowed to retain out of 
 the assets of his intestate, a note payable to him as guardian 
 where his intestate is surety, when he has paid over to the 
 principal of said note, who was insolvent, a claim on his intes- 
 tate for a sum more than sufficient to have paid off and dis- 
 charged the indebtedness of the principal. Redman v. Turn- 
 er, 65 N. 0. R 445. 
 
 24. After a judgment fixing an executor with assets, and 
 a return of an execution issued thereon, nulla bona, the pro- 
 per mode to subject such executor personally, is by motion 
 founded on notice and not by civil action. McDowell v. As- 
 buru, 66 X. 0. R. 444. 
 
 25. Writs of scire facias consisted of two classes, the ob- 
 ject of the first class being to remedy defects in, or to con- 
 tinue an action ; that of the second class to commence some 
 proceeding. Ibid. 
 
 2G. Proceedings in the nature of a sci. fa., of the first 
 class, are almost indispensable in the administration of jus- 
 tice, and the object of the Code was merely to abolish the 
 name and form of writs of this class, and simplify the process 
 into a notice or summons, to show cause why further preceed- 
 ings should not be had to provide further relief, in matters 
 where parties had had a day in Court, &c , and not to effect 
 the substance of the remedy. Ibid. 
 
 27. On such motion, the Judge may allow the defendant 
 to make any defence which he could have availed himself of, 
 under the old scire facias proceeding. Ibid. 
 
 28. The form of pleading and practice to be pursued in 
 order to subject executors and administrators personally, un- 
 der the former system, elucidated by Dick, J. Ibid. 
 
 29 If a simple-contract creditor receives payment of the 
 executor, a bond-creditor cannot afterwards, either at law or 
 in equity, compel the simple contract creditor to refund, for 
 both are creditors, and tfie creditor first paid, may, with good 
 ■ conscience, retain the money, and leave the bond-creditor to 
 iiis action as for a devastavit. WItitted vj&ash, GO N. C. 
 R. 590. ^ 
 
 30. Xor is this principle varied by the receipt of property 
 in satisfaction instead of money: Provided, the property is 
 
 )a-n at a full price, bona fide, and, without notice that the 
 
200 EXECUTORS AND ADMINISTRATORS— XII. 
 
 executor is contriving to defeat the priority of the bond- 
 creditor. Ibid. 
 
 31. The daughter of a decedent being very solicitous to 
 cause his debts to be paid, on being assured by the executor 
 that her own and his (the executor's) debts are the only ones 
 outstanding, buys from the executor certain property, and 
 executes her notes to certain persons, creditors of the execu- 
 tor, and it afterwards appears that the testator owed other 
 persons : held, that these facts warrant a rescission of the 
 transaction. IMd. 
 
 32. In the case above stated, our courts having refused 
 to adopt the doctrine of the English Courts, by which a 
 purchaser from a fiduciary is compelled to see toihe applica- 
 tion of the purchase money — had the purchase money been 
 paid, the purchaser would have been protected in her title, 
 but as the purchase money had not been paid, the fund will 
 be arrested and applied in a due course of administration. 
 Ibid. 
 
 33. In administrations granted prior to 1st July, 1861), 
 the creditor who first proceeds upon his judgment quando r 
 and fixes the administrator with assets, must first be paid, 
 without any regard to priority of judgments. McLean v. 
 Leach, 68 N. C. R. 95. 
 
 34. Letters of administration granted to one in 1865, who 
 is removed in the Fall of 1869, and another appointed in his 
 place, are governed by the law as it was prior to July, 1869. 
 Dancy v. Pope, 68 N. C. R. 149. 
 
 35. An absolute judgment is a lien not only upon the 
 assets in hand, but also upon such assets as may come in 
 hand after its rendition. It is a lien upon the estate of the 
 deceased debtor, and must be first paid according to the date 
 of the judgments respectively. Ibid. 
 
 36. Quando judgments are to be paid in the second in- 
 stance out of the fund, according to the date of the judg- 
 ments respectively; quando judgments on specialties taking 
 preference of those obtained on simple contract debts. Ibid. 
 
 37. A decree in equity declaring a debt, and held for 
 "further directions," is to all intents and purposes a quando 
 judgment and entitled to the same status in the distribution 
 of assets. Ibid. 
 
 38. The personal estate in the hands of an administrator 
 constitutes the primary fund for the payment of the debts of 
 the intestate. By an Act of Assembly, 1846, the lands of 
 the intestate is a secondary fund, liable only to be used in 
 
EXECUTORS AXD ADMINISTRATORS— XII. 201 
 
 the payment of debts when the primary fund is exhausted. 
 Hinton v. Whitehurst, 68 N. 0. R. 316. 
 
 3D. As a general rule, the creditors of an ancestor are 
 entitled to all the rents aud profits received by the heirs since 
 the descent cast. If, however, the heirs are infants, and 
 the guardian has expended the rents and profits, or auy 
 portion thereof, in the necessary maintenance aud support of 
 the heirs, only that portion unexpended belongs to the cred- 
 itors Moore v. Shields, 68 N. 0. R. 327. 
 
 40. A fund, iu the hands of a Commissioner of the court, 
 in the nature of rents and profits, which fund originated iu a 
 compromise of a certain suit in equity, against the purchaser 
 ot laud sold by order of the court, and which sale, by the 
 terms of the compromise, was rescinded, belongs to the 
 administrator aud its assets for the payment of debts, subject 
 to the exception in favor the heirs being allowed necessary 
 maintenance therefrom. 1 bid. 
 
 41. Where an administrator sold the effects of his intes- 
 tate in 1862, and took as surety to the note given by a pur- 
 chaser, a person who lived and had all his property in Mis- 
 sissippi, it was held, that the administrator was not to be 
 responsible therefor, if such surety was undoubtedly good for 
 the debt when he was taken, though he became insolvent 
 afterwards by the result of the late war. Shields v. Jones, OS 
 N. C. R, 488. 
 
 42 In a creditor's bill against an administrator, when it 
 is found upon a reference to ascertain the debts, that the fund 
 is sufficient to pay such debts, a judgment against the admin- 
 istrator, on the admission of a debt, is taken in full proof; for 
 the reason that the other creditors are not interested in the 
 matter. Overman v. Grier, 70 N. C. R. 003. 
 
 43. On the contrary, when the fund is not sufficient to 
 pay the debts, each creditor is allowed to dispute the debt of 
 any otner, and the debt of such other creditor must be proved 
 de novo before the referee ; for in such case the creditors have 
 a direct interest in the question, debt or no debt, inasmuch 
 us its allowance will diminish the fund pro tanto. Hid. 
 
 44. The maker of a promissory note, being indebted to A, 
 made it payable and delivered it to B and 0, administrators 
 for the purpose that the amount of the note might be credi- 
 ted on a claim due their intestate from A : held, that the 
 acceptance of the note by B and O, although they refused to 
 credit A with the amount, enured to his, A's benefit, and 
 that he had a right to hold the makers responsible for the 
 amount. Ibid. 
 
202 EXECUTORS AND ADMINISTRATORS— XIII. 
 
 XIII. OF THEIR LIABILITY TO LEGATEES AND NEXT OF KIN. 
 
 1. An administrator, who delivers the residue of an estate 
 to the distributees, has no equity to call upon them to refund 
 the amount of a debt paid by him afterwards, of which he 
 had no notice at the time he delivered up the residue, unless 
 he alleges and proves special circumstances showing that he 
 was in no default, and relieving him from the imputation of 
 negligence. Donne&l v. Cooke, 63 X. 0. R. 227. 
 
 2. Where the case showed that the plaintiff knew at the 
 time, that his intestate had been administrator as well as 
 guardian of a certain estate, and that notes due to him as 
 administrator were still outstanding; and in excuse of his 
 ignorance of the existence of a debt of some $1,400 due by 
 his intestate to such estate, he relied upon the fact that the 
 Court records showed a settlement by the guardian, (such 
 settlement including only the proceeds of a tract of laud and 
 a small amount of- rest:) held, especially as the records show- 
 ed no settlement by the administrator, to have been gross 
 negligence in him to pay over the residue to the distributees. 
 lUd. 
 
 3. If an executor or administrator refuse to bring an ac- 
 tion to surcharge and falsify an account by which his testa- 
 tor's or intestate's estate has been injured, such action may be 
 brought by the legatees or next of kin, and in doiug so, they 
 should make the executor or administrator a party defendant 
 together with the other defendant. Murphy v. Harrison, 
 65 X. C. R. 246. 
 
 4. Where a testator was the surety for his sou in an 
 amount greater than the value of said son's interest in said 
 estate: held, that the son is not entitled to recover from the 
 Executors of his father his distributive share of said estate, 
 although the Executors of the father do not pay off the sure- 
 ty debt till after action brought by the son. liamsour v. 
 Ramsour, 65 N. C. R. 628 
 
 5. A. father is bound to support his children if he has abil- 
 ity to do so, whether they have property or not, and he is not 
 entitled to any credit for such support, in a settlement of ac- 
 counts between them and himself. Hagler v. McCombs, 66 
 X. C. R. 3*5. 
 
 6. In an action for an account, against an executor, the 
 personal representative, and not the children of a deceased 
 legatee, should be made a party. Ibid. 
 
 7. A testator who died, 1864, gave the bulk of his real 
 and personal estate to three sisters, equally to be divided 
 
EXECUTORS AND ADMINISTRATORS— XIII. 203 
 
 ttetween them, and directed his executor to sell on twelve 
 months' credit. The sale was made in November, 1804; the 
 husbands of two of the sisters, one of whom was the guardian 
 of the third, bought most of the property, a negro and a few 
 articles of personal property being bought for the ward. By 
 agreement, instead of giving their notes, they gave receipts 
 to the executor for the amounts of their respective purchases 
 in part of their wives' shares, and, at the same time, the 
 executor passed over to one of them, whose purchases were 
 less in value than the others, a considerable amount of solv- 
 ent notes given to the testator, some before the war : held, 
 that notwithstanding there was no inteut on the part of the 
 executor and said purchasers to defraud the infant sister, as 
 the departure fVom the directions in the will, as to sale on 
 credit, resulted in her loss, she is entitled now to be put in 
 the situation she would have occupied had said directions 
 been carried out literally, and to have an equal division of the 
 testators. MvLartyv. Brown, 67 N. 0. R. 311. 
 
 8. In such case, receipts given by the ward, soon after 
 she became of age, for the amount of her purchases at the 
 sale, and for her share of confederate money, received on the 
 day of sale, will not have the effect to ratify the said deal- 
 ings with the estate. Ibid. . 
 
 9. A sale by an executor in November, 1S64, of lands, 
 farming utensils, &c, directed to be sold on twelve months' 
 credit for Confederate money, is not an exercise of due pru- 
 dence. 1 bid 
 
 10. An executor, who surrenders upon the request of the 
 surety, a bond for which the principal and such surety are 
 bound, and takes in lieu thereof the individual bond of such 
 surety unsecured, makes himself personally responsible for 
 the payment of the bond, or such portion thereof as remains 
 unpaid. Camp v. Smith, 68 N. L. R. 537. 
 
 11. That a defendant, an administrator, did not attempt 
 to collect a debt for more than eighteen months after it fell 
 due, does not warrant the legal inference of a want of due 
 diligence on his part, without a finding of the further fact, 
 that the obligors were men in failing circumstances, so as to 
 call lor active diligence in the collection, or that the condition 
 of the estate required immediate collection, in order to pay 
 off pressing demands and save costs. Keener v. Finger, 70 
 N. C. R. 35. 
 
 12. Nor does it amount to a want of due diligence, that 
 the defendant caused a levy to be held up for three years al- 
 ter judgment, and then directed the execution to one of the 
 
204 EXECUTORS, &c— XIII.— XIV. 
 
 defendants therein, which was not kept up and perfected as a 
 lien, unless it is also found that it was for the interest of the 
 trust fund, that the debt should have been collected in 18G3- 
 '04, iu Confederate money, or else that the circumstances 
 were such that the defendant should have taken upon him- 
 self the odium of demanding specie, or that the defendant in 
 the exercise of due diligence, should have foreseen the tact 
 that at the close of the war, there was to be a military order 
 forbidding the collection ot old debts contracted for the pur- 
 chase of slaves. Ibid. 
 
 13. In a suit to recover a distributive share in an intes- 
 tate's estate, it is not necessary to prove that the person pay- 
 ing such share to the agent of the distributee was, at the time, 
 rightful Administrator; and evidence to prove that such per- 
 son paid the distribute share to the agent, is clearly admissi- 
 ble. Neighbors v. Jordan, 70 X C. R. 406. 
 
 14. Docketed judgments in force against the estate of a 
 decedent, has priority of payment over other debts to the ex- 
 tent of the lien which such judgment has on the real estate. 
 If the real estate is more than enough to pay the judgment, 
 then the whole thereof has priority over other debts; if the 
 real estate is only sufficient to pay part of the judgment, then 
 the priority is measured by the value of such real estate. 
 Jenkins v. Carter, 70 X C. R. 500. 
 
 See (Confederate money, 11, 16, 17, IS, 21.) (Public 
 Law, 25 ) 
 
 XIV. DISTRIBUTION AND ADVANCEMENTS. 
 
 1. A conveyance of laud to a son-in-law is not to be reck- 
 oned as an advancement to the daughter, who at the death 
 of her father is married to a second husband. Banks v. 
 Shannonhouse, Phil L. R. 284. 
 
 2. A gift of slaves accompanied by a warranty of the title 
 forever, (made some years before the late war,) continues an 
 advancement of the value of them when given, without refer- 
 ence to their subsequent emancipation by the results of the 
 late war. Ibid. 
 
 3. When a father is indebted to his children, and gives 
 them property or money at their maturity or marriage, the 
 presumption is that this is a payment of the debts and not 
 an advancement. This presumption, however, is liable to be 
 rebutted bv the facts in the case. Hagler v. McCombs, GO 
 X. C. R. 315. 
 
 4. If monev is given to a son-in-law, under similar cir- 
 
EXECUTORS, &c.— XV.— XVI— EXTRADITION. 205 
 
 cumstanees, or paid by the father-in-law, as surety, the same 
 rule applies. Ibid. 
 
 5. If a father while acting as executor, receives into his 
 possession a number ot slaves bequeathed to his children, 
 and afterwards sells one of them, and retains and controls the 
 others until their emancipation ; held, that in an action for 
 the hire of said slaves, &c , it shall be determined, as a fact, 
 whether he converted, or intended to convert, the slaves to 
 his own use, or whether he held them as trustee or bailee for 
 his children. If the former, a debt is established, and the 
 presumption above referred to applies — otherwise it does not. 
 Ibid. 
 
 XV. REFUNDING BONDS. 
 
 When an administrator two years after his qualification 
 delivers certain slaves, the only personal estate of his intes- 
 tate, to the next of kin, and took from them refunding bonds, 
 and in a suit against the administrator and heii s-at-law among 
 whom the lands of the intestate had been divided, upon an 
 old judgment: held, that by the emancipation of the slaves 
 by the sovereign the condition of the refunding bonds were 
 tulfilled, and that the lands were subject to the payment of 
 the plaintiff's debt. H'uiton v. Whitehurst, 68 X. 0. R. 316. 
 
 XVI. COMMISSIONS. 
 
 A trustee is generally entitled to commissions, but when a 
 person is trustee by reason of his being executor, and volun- 
 tarily assumes control of a fund willed to minor children, he 
 not being their guardian, he is not entitled to commissions. 
 Hagler v. McCombs, 66 N. 0. R. 345. 
 
 EXTRADITION. 
 
 1. The clause in the Constitution of the United States 
 requiring that fugitives from justice charged with treason, 
 felony or other crime, shall be delivered up, &c, is to be 
 construed so as to include acts made criminal by amendments 
 in the laws of the several States, and is not to be limited to 
 such only as are crimes at common law. Li the matter of 
 Hughes, Phil. L. R. 58. 
 
 2. Where the prisoner had already once been delivered 
 up by the Governor for the crime in question, and thereupon 
 
206 FACTOR— FALSE TOKENS.— FENCES. 
 
 having been allowed bail forfeited his boud, and was again a 
 fugitive : held, that it was clearly within the power of the 
 Governor to order a second arrest and surrender. Ibid. 
 
 FACTOR. 
 See (Agent and Principal — Factors.) 
 
 FALSE TOKENS. 
 
 1. To sustain an indictment for obtaining goods by a false 
 pretense, under our Statute, liev. Code, ch. 34, sec. 07, there 
 must be a false representation of a subsisting tact, calculated 
 to deceive, and which does deceive, whether the representa- 
 tion be in writing, or in words, or in facts, by which the de- 
 fendant obtains something of value from another without 
 compensation. But this does not extend to what are called 
 li mere tricks of trade " by which a man puffs his goods. State 
 v. Phifer, 65 N. C. R 321. 
 
 2. The doctrine of cheating by false tokens at the com- 
 mon law and under the Statute of Henry VIII. and by false 
 pretences under the Statutes of 30, George II. ch. 24, and 
 our Act, discussed and explained. Ibid. 
 
 3. The defendant sold to the prosecutor four barrels of 
 crude turpentine, representing "that they were all right, just 
 as good at bottom as they were at top," &c, and when ex- 
 amined, the barrels coutained only a small quantity of tur- 
 pentine ou the top of each, the rest of the contents being 
 chips and dirt : held, that the defendant was guilty of cheat- 
 ing by false tokens. State v. Jones, 70 N. C. R 75. 
 
 FENCES. 
 
 1. A u pasture-field"' is not "cleared ground under culti- 
 vation,'''' within the meaning of the Statute, (lie v. Code, ch. 
 48, sec. 1,) requiring planters to keep around such ground a 
 fence at least five feet high. State v. Perry, (54 N. C. li. 305. 
 
 2. Under the statute requiring " every planter to make a 
 sufficient fence about his cleared ground under cultivation," 
 
FENCES.— FERRY.— FIXTURES. 207 
 
 &c, it is not the intention of the Legislature to visit with 
 pains and penalties mere hirelings and laborers on farms who 
 work by direction of their employers, and have no discretion 
 to originate plans of their own or to change those oi their 
 employers. State v. Taylor, 69 X. 0. R. 543. 
 
 .'). Xor does the act include a simple employee, with no 
 more discretion as to the management of the farm than is 
 usually vested in those persons whom planters designate as 
 " foremen," whose office is to keep things moving in the direc- 
 tion indicated by the employer ; and the fact that such em- 
 ployee receives his wages out of the crop does not change the 
 principle, for that with fanners is a common mode of paying 
 their hands. Ibid. 
 
 FERRY. 
 
 1. Under the act of 1813, the county, courts had no 
 authority to make an irrevocable grant of an exclusive ferry. 
 Harrington v. Neuse River Ferry Company, 09 N. C. R. 105. 
 
 2. And the General Assembly, by its act of 1872, gran- 
 ting to a company the privilege of establishing a ferry, with- 
 in two miles of another which had been used for over 40 
 years, did not divest any vested right belonging to the owner 
 of such old ferry. Ibid. 
 
 3. Article 8, sec. 2, of the Constitution, giving to the 
 commissioners of counties a general supervision aud control 
 over schools, roads, bridges, &c, does not deprive the Legis- 
 lature of the power of special legislation over these subjects. 
 Ibid. 
 
 4. The Legislature, under its right of eminent domain, 
 has the power to grant the franchise of a ferry to any one, 
 and to authorize the condemnation of the land of a riparian 
 owner as a landing place. Ibid. 
 
 FIXTURES. 
 
 1. A whiskey still was hired for the season to parties who 
 set it up, encased in masonry, upon the lands of one of them ; 
 dining the season, it was sold by the owner to the plaintiff; 
 shortly afterwards it was levied upon, and, after the close of 
 the season, and whilst it was still encased as above, was sold, 
 
203 FIXTURES —FORCIBLE TRESPASS. 
 
 by one of the defendants as a constable, at the instance of 
 the other (who became purchaser,) under a judgment against 
 the former owner : held, that the defendants were liable to 
 the plaintiff in an action of trover; that the doctrine of fix- 
 tures had no application, under the circumstances. Feim- 
 ster v. Johnson, 64 N. R. 259. 
 
 2. Where the owner of the inheritance, attaches to the 
 freehold articles of personalty for the better enjoyment of the 
 estate, as for instance, a cotton gin, such articles become a 
 part of the realty, and pass to the heir, mortgagee or vendee. 
 Latham v. Blakely, 70 N. C. R. 368. 
 
 3. And while an owner may detach fixtures and convert 
 them into personalty, yet he cannot do so after an execution 
 has been levied on the laud to which they are attached. Ibid. 
 
 FORCIBLE TRESPASS. 
 
 1. The distinction between robbery and forcible tres- 
 pass is that in the former a felonious intention exists, and in 
 the latter it does not. State v. Soivls, Phil. L. R. 151. 
 
 2. By Pearson, 0. J. Forcible trespass is the taking 
 of the personal property of another by force ; robbery, the 
 fraudulent taking of the personal property of another by 
 force, ibid. 
 
 3. Iu forcible trespass it is not necessary that the per- 
 son from whom the property was taken, should have been 
 actually put in fear. State v. Pearman, Phil. L. R. 37 L. 
 
 4. In an indictment for forcible trespass it is sufficient to 
 charge, that the defendant entered the premises with a strong 
 hand, the prosecutor being then and there present. State v. 
 Buckner, Phil. L. R. 371. 
 
 5. Where the land on both sides of a road, whether pub- 
 lic or private, belongs to the prosecutor, he is the owner of 
 the soil over which the road runs; and persons who stop upon 
 such road and use violent and menacing language to him; are 
 guilty of a Forcible Trespass. Ibid. 
 
 6. The ouly privilege which the public have in a public 
 road is that of passing over it, and those who abuse that priv- 
 ilege become trespassers ab initio, and create a nuisance. 
 Ibid. 
 
 7. After conviction of a forcible trespass, judgment will 
 not be arrested because the indictment contains no allegation 
 as to the time when the offence was committed. State v. 
 Caudle, 63 JN. 0. R. 30. 
 
FORCIBLE TRESPASS. 209 
 
 8. An indictment for tearing down a dwelling house, 
 binder the act in the Revised Code, ch. 34, sec. 103, cannot 
 he supported by proof that it was torn down by the owner or 
 his tenant, though it was occupied at the time by a tenant at 
 sufferance; but, if the tenant at sufferance, were present, 
 forbidding the act when the house was torn down, an indict- 
 ment for a forcible trespass might have been supported. 
 State v. Mace, 05 3ST. C. 11. 344. 
 
 9. The object of the act of 1865-'66, entitled " An Act to 
 prevent willful trespass on lands," &c , was to keep off intru- 
 ders, and to subject them to indictment if they invaded the 
 possession after they had been forbidden. State v. Hanks, 
 •66 N. 0. R 012. 
 
 10. A forcible trespass '' is a high-handed invasion of the 
 actual possession of another," he being present ; the title is 
 uot drawn in question. Where, therefore, a person who had 
 made an entry, believing a tract of land to be vacant, and 
 had procured a warrant of survey, and, under said warrant 
 •of survey, had entered upon the land in the possession of 
 another: held, that although the land was not vacant, yet 
 that such person could only be guilty of a civil trespass and 
 not a forcible one, as above defined. Ibid. 
 
 11. Where A, under a contract of purchase, claimed a 
 tract of laud, in the possession of, and also claimed by B and 
 entered upon and took temporary possession of a cabin on 
 the land, though forbidden by B to do so: held, that A was 
 not indictable under the act of 1805-'0G, for a willful tres- 
 pass. State v. Ellen, G8 JS". 0. R. 281. 
 
 12. To constitute the offence of forcible trespass, there 
 must be a "demonstration of force," such as is calculated to 
 intimidate, or put in fear — the law not allowing its aid to be 
 invoked by indictment, for rudeness of language, or even 
 slight demonstration of force, against which ordinary firmness 
 will be sufficient protection. State v. Covington, 70 N. (J. R. 71. 
 
 13. The distribution of judicial powers, by Art IV, of the 
 Constitution, is a virtual repeal of all laws giving jurisdiction 
 to Justices of the Peace in case of forcible entry and detainer; 
 ■except for the binding of trespassers to the Superior Court, 
 to answer a criminal charge ; therefore, where four or more 
 men enter upon the premises in the actual possession of 
 another by virtue of a warrant and proceedings before a 
 magistrate, which are a nullity, and eject such person and his 
 family from the house they were occupying, they are guilty 
 
 of a forcible trespass. State v. Yarbo rough, 79 N. C. B. 2.30, 
 See i Bobbery 2, 5, G.) 
 14 
 
210 FORCIBLE ENTRY AND DETAINER. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 1. The proceedings for forcible entry aud detainer are 
 intended to be summary, and therefore no appeal is given. 
 Grissett v. Smith, Phil. L. R. 1(34. 
 
 2. Any one aggrieved thereby may have remedy by the 
 writ of recordari, by which the defendant may show that the 
 justice was guilty of misconduct or irregularity or may have 
 the benefit of a writ of false judgment. Ibid. 
 
 3. Where the verdict in such proceedings in respect to> 
 estate of the plaintiff, was ''and we the jurors do hereby 
 decide that the said A S, plaintiff and owner of said house r 
 &c, do give him full possession of t.ie same;" held, that such 
 description was insufficient Ibid. 
 
 4. No appeal lies from a judgment given upon an inquisition 
 before a Justice of the Peace, for forcible entry and detainer. 
 Griffin, v. Griffin, Phil. L. R. 167. 
 
 5. A defendant has no right to claim that a judgment 
 shall suspend action upon a motion that has been made to 
 dismiss such an appeal, in order to allow him to file a peti- 
 tion and affidavit for writs of certiorari, mandamus and 
 supersedeas. Ibid. 
 
 6. Where upon recordari in the Superior Court it appears 
 that the proceedings in an inquisitiou for forcible eutry and 
 detainer before a Justice of the Peace were regular, aud the 
 jury found that the relators had an estate in fee simple in the 
 land and were forcibly ejected by the defendant, the writ 
 should be dismissed. Little v. Martin, Phil. L. R. 240. 
 
 7. An indictment for forcible entry and detainer to be 
 good, must set forth with plainness and certainty, all the 
 essential facts constituting the offence; the charge must be 
 explicit enough to support itself, for if all the facts alleged in 
 the indictment may be true and yet constitute no offence^ 
 the indictment is sufficient. State v. Eason, 70 N. 0. R. 88. 
 
 8. A Justice of the Peace has no jurisdiction of proceed- 
 ings of forcible entry aud detainer under Rev. Code, chap. 49. 
 Atlantic, Tennessee and Ohio R. JR. Co. v. Johnston, 70 
 N. C. K. 500. 
 
 9. Whenever a party is put of possession by process of 
 law, and the proceedings are adjudged void, an order for a 
 writ of restitution, is a part of the judgment, and should be 
 made. Perry v. Tapper, 70 N. 0. R 538. 
 
FOREIGN JUDGMENT.— FORGERY. 211 
 
 FOREIGN JUDGMENT. 
 
 1. Citizens of North Carolina who authorize a suit to be 
 brought in Texas, are personally liable for the costs adjudged 
 against them upon their failure in such suit, although they 
 may never have been in that State; and a judgment there- 
 for may be enforced in North Carolina as a valid foreign judg- 
 ment. Walton, v. Suffg, Phil. L. B 98. 
 
 2. In an action upon a judgment given in another State, 
 after it is seen that the person against whom such judgment 
 was given was regularly made a party to that suit, no ques- 
 tion can be made whether that court ought to have rendered 
 such a judgment; but lull faith and credit must be given to 
 it. Ibid. 
 
 FORGERY. 
 
 1. In an indictment for forgery (upon a Statute which in- 
 cluded all bonds,) the forged instrument was described as a 
 "certain bond and writing obligatory, which was placed as a 
 prosecution bond upon the process in a suit, &c, in which M. 
 P. Lytle was plaintiff, and Mary L. Lytle, defendant, AYhich 
 said forged bond is as follows, that is to say, " We and each 
 of us promise to pay the defendant in the within petition all 
 such costs," &c; and it appeared that such suit was for di- 
 vorce, b}^ husband against wife, and that the bond had been 
 written upon a paper which contained the prisoner's affidavit 
 for instituting the suit, which paper was attached to the peti- 
 tion (having the Judge's fiat endorsed) by being pasted to it 
 at one corner: held, that the description of the bond, as 
 placed upon the process, although unnecessary, became mat- 
 ter of substance, and in this case was not made out; that the 
 writing described as a bond (being given by husband to wile,) 
 was binding on no one ; so that it could not be the subject of 
 forgery. Slate v. Lytle, G4 N. C. R. 255. 
 
 2. To constitute an " order for the delivery of goods," 
 within the meaning of Rev. Code, oh. 34, sec. 59, a forgery, 
 there must appear to be a drawer, a person drawn upon, who* 
 is under obligation to obey, and there must appear to be a 
 person to whom the goods are to be delivered. State v. Lamb, 
 <;•"> X. C. R. 41 J). 
 
 3. If the paper writing set forth in the indictment as a 
 
212 FORGERY.— FORNICATION AND ADULTERY. 
 
 forgery does not contain these requisites, there cannot be a 
 conviction for forgery under such statute. Ibid. 
 K 4. The writing set forth in the indictment is such an in- 
 strument as will constitute at common law a forgery, hence, 
 the conclusion " against the form of the statute " may be re- 
 jected as surplusage, and under the conviction in this case 
 the defendant may be punished for a misdemeanor, as at 
 common law. Ibid. 
 
 5. In an indictment for forgery, if it appears that the in- 
 strument is kept out of the possession and knowledge of the 
 jury by the action of the prisoner himself, the act is equiva- 
 lent to the destruction of the instrument. And such destruc- 
 tion is sufficiently alleged, under the circumstances, when it 
 is charged in the indictment that the prisoner has " disposed 
 of" the instrument. State v. Ben. Davis, 69 N. C. R. 313. 
 
 0. Indictment for forging a bond or other instrument is 
 sustained by proof of the forgery of the name of one of the 
 obligors in the bond. Ibid. 
 
 7. Where an indictment charged the forgery of the name 
 of a firm with intent to defraud two persons whose names 
 were stated, but it was not alleged that they composed the 
 firm, and the testimony proved the forgery with an intent to 
 defraud the firm, but it was not proved that the two persons 
 named composed the firm : held y that the allegations of the 
 iudictment were not proved, and that it was error in the 
 court to charge otherwise. State v. Harrison, 09 N. C. R. 
 144. 
 
 FORNICATION AND ADULTERY. 
 
 1. It is not fornication and adultery where persons, who 
 were formerly slaves, were married during the existence of 
 slavery according to the forms then prevailing, and after their 
 emancipation continued to cohabit together in the relation of 
 husband and wife. State v. Adams, 05 N. C R. 537. 
 £* 2. The act of 1805-'00, ch 40, sec. 5, requiring such par- 
 ties to go before the County Court Clerk, or a Justice of the 
 Peace, and to acknowledge the fact of such cohabitation, and 
 the time of its commencement, makes it a misdemeanor only 
 for failure to perform these duties. Ibid. 
 
 See (Husband and Wife — Of marriage 1, 2.) 
 
FRAUD. 213 
 
 FRAUD. 
 
 I. Fraud in conveyances. | II. In auction sales. 
 
 I. FRAUD EN CONVEYANCES. 
 
 1. In order to set aside a conveyance that is very advant- 
 ageous to the bargainee, it is necessary to allege and prove, 
 either the existence of those confidential relations between 
 the parties on account of which public policy will not allow 
 such a transaction to stand, or actual exercise by the bar- 
 gainee of undue influence, circumvention or fraud. Bur- 
 roughs v. Jenkins, Phil. Eq. R. 33. 
 
 2. A mistake in a deed will be corrected, only upon the 
 terms that the person applying therefor will give effect to 
 such counter equities in favor of the bargainor as may arise 
 out of the transaction. Coleman v. Coleman, Phil. Eq. R. 43. 
 
 3. The rule, a man must come into equity with clean 
 hands, does not apply to a case in which the complainant 
 seeks to set aside conveyances made by himself with a view 
 to evade the Confiscation Acts of the Confederate govern- 
 ment. Blossom v. YanAmringe, Phil. Eq. R. 133. 
 
 4. One of a number of transactions in a course of busi- 
 ness is not, without special reason, to be isolated from the 
 general account of such business. Ibid. 
 
 5. Where property was bought at a public sale of which 
 the conditions were that payments should be made in " good 
 current bank money," and a purchaser gave his note for the 
 amount of his purchase in general terms, without adding 
 '' good current bank money," because he wa» assured it was 
 implied : held, that equity would correct the mistake, and 
 supply the omission. Womack v. Backer, Phil. Eq. R. 161. 
 
 6. W here a creditor was paid a smaller sum than was due, 
 and without leading it signed a receipt written by one in 
 whom he confided, and expressed to be in fall of his claim 
 though not so understood by him : held, a proper case for a 
 Court of Equity to relieve by correcting the receipt. Elliott 
 v. Logan, Phil! Eq. R. 163. 
 
 7. Where ;i son, having acquired control over an old and 
 imbecile father, in the absence ot other friends of the father 
 and otherwise under suspicious circumstances, obtained a 
 deed for all the father's lands at an inadequate price, and 
 gave his note for the amount, a Court of Equity at the suit 
 of the other heirs will order the <]vv<\ to be cancelled. Hart- 
 leg v. Estis, Phil. Eq. R. 167. 
 
214 FBAUD. 
 
 8. Where land was sold by the acre, and the vendor fraiu - 
 nlently represented the tract to contain a greater number of 
 acres than it actually contained, the purchaser is entitled to 
 relief against the collection of so much ot his note for the 
 purchase money as is for the excess. Earl v. Bryan, Phil. 
 Eq. 11. 278. 
 
 9. One who asks to have an absolute deed corrected into 
 a mortgage, must allege and prove that a clause of redemp- 
 tion was omitted, by reason of ignorance, mistake, fraud or 
 undue advantage taken of the bargainor. Therefore, no relief 
 ■will be given where the only allegations are, that the bar- 
 gainor executed the deed in absolute form, " but intended 
 simply as a mortgage, as will more fully appear by the proof"? 
 — and, that the contract was that the defendant, " having 
 paid the debt to H, took the deed absolute on its face but 
 agreed to make a title bond at a subsequent day to the plain- 
 tiffs, conditioned to re-convey on the payment of the debt," 
 Sec Briant v. Corpening, Phil. L. R. 325. 
 
 10. A conveyance to pay a bona fide debt if made by the 
 debtor with a fraudulent intent, is void. Devries v. Haywood, 
 03 N. li- 53. 
 
 11. A deed conveying property in trust for the bargainor's 
 only son and in case of the sou's death without issue, then 
 over, prepared and registered at the instance of the bargain- 
 or, will not be set aside upon a bill by the bargainor alleging 
 that the deed was not delivered, that its object was to reclaim 
 from vice the son (since dead, childless,) and that it was not 
 the bargainor's intent to deprive himself of the control of the 
 property : there being no other charge of fraud, surprise or 
 ■undue influence, than a recital, that in preparing and regis- 
 tering the deed the bargainor was " subject to the control and 
 influence of the improper constraint, advice and duress of pre- 
 tended friends," and that he was "at the infirm and advanced 
 age of seventy years" Harshaw v. Mci ombs, 05 N. 0. K. 75. 
 
 12. In such case the plaintiff will not be aided by an al- 
 legation that the deed was not duly stamped. Ibid. 
 
 13. When an insolvent person misapplied money which 
 had been placed in his hands in trust for his own son : held, 
 that he might replace the same without being guilty of fraud 
 against other creditors Jackson v. Spivey, 03 N. 0. E. 201. 
 
 14. A bill for the rescission of a contract on account of 
 fraud perpetrated after the contract is made, will not be en- 
 tertained ; therefore, a bargainor of land is not entitled to 
 such relief, in a case where he alleged that some years after 
 ..the contract had been made, the bargainee, having asked for 
 
FEAUD. 215 
 
 them upon a pretence of calculating interest, put the notes 
 for the purchase money into his pocket, at the same time 
 drawing a pistol and telling the bargainor not to follow him. 
 Fulton v. Lofts, 03 X.C K 393. 
 
 15. Upon an issue of fraud in regard to a conveyance of 
 land, it appeared that the consideration set out was $4,000, 
 whilst there was evidence that it was in fact considerably less ; 
 thereupon the vendee (defendant,) asked the court to instruct 
 the jury that it was not incumbent upon him to prove that 
 he had given exactly that amount, so that it were shown that 
 he had given a fair and reasonable price: held, that such 
 instructions, in reply to his prayer, that the fact, that the 
 consideration set out in the deed was $-4000, did not })er se 
 render the deed fraudulent ; but that in a question of fraud, 
 the jury were at liberty to take it into consideration together 
 with other circumstances, were responsive and correct. Pee- 
 bles v. Horton, 04 N. O. E. 374. 
 
 10. That the only parties present, in February, 1805, at 
 a conveyance of all the vendor's land in satisfaction of old 
 debts, where the vendor and vendee, who were brothers-in- 
 law, and the subscribing witness, also a brother-in-law, of the 
 vendee: is a fact calculated to throw suspicion upon the 
 transaction, i. e., is a badge of fraud. Ibid. 
 
 17. That a defendant declines to call as a witness in 
 regard to a transaction to which he was a party, a disinter- 
 ested and unimpeachable person, then known by him to be 
 present in court ; and instead, becomes a witness in regard 
 to such transaction himself — it being the very matter in ques- 
 tion in such suit — is also calculated to excite suspicion; and 
 instructions thereupon, — that it was not evidence of fraud by 
 itself, but considerable latitude is permitted to counsel in 
 such matters, and, under the circumstances the plaintiff's 
 counsel were at liberty to comment upon it as a badge of 
 fraud, and the jury may consider of it in making up their 
 verdict, were correct. Ibid. 
 
 is \\ 'here a conveyance of land is made upon a valuable 
 consideration, it is erroneous to make its validity as against 
 creditors to depend upon the intention with which the vendor 
 (alone) made it, ex. gr. his intention to hinder, d-c, his cred- 
 itors. Lassiter v. Vavis, 0* N. O. R. 408. 
 
 10. Jt seems to be otherwise where the conveyance is vol- 
 untary merely. Ibid. 
 
 L'0. A transaction in which one creditor consents, upon 
 receiving security by way of mortgage, to give indulgence to 
 his debtor, is not therefore fraudulent as to other creditors. 
 Rarskaw v. Woodjin, 04 X. 0. B. 568. 
 
216 FRAUD. 
 
 21. Ordinarily, the maxim of caveat emptor, applies 
 equally to sales of real and personal property, and is adhered 
 to in all courts, where there is no fraud. Walsh v. Hall, 66 
 K 0. R. 233. 
 
 22. But if representations made by one party to a con- 
 tract, which may be reasonably relied on by the other, con- 
 stitute a material inducement to the contract are knowingly 
 false ; cause loss to the other party relying on them ; and 
 such other party has acted with ordinary prudence, he is 
 entitled to relief in any court of justice. Ibid. 
 
 23. If the parties have equal means of informotion, the 
 rule of caveat emptor applies, and an injured party cannot 
 have redress, if he fail to avail himself of those sources of 
 information which he may readily reach, unless prevented by 
 the artifice or contrivance of the other party. Ibid. 
 
 24. So, if the false representation is a mere expression of 
 commendation, or simply a matter of opinion, the parties tiro 
 considered as standing on an equal footing, and the courts 
 will not interfere. Ibid. 
 
 25. In contracts of this character, fraud without damage, 
 or damage without fraud, are usually not the subject of an 
 action for deceit. Ibid. 
 
 26. In a case like that set forth in the answer, the pur- 
 (h iser of lands is not required, in order to guard as. a nst the 
 fraudulent representations of a vendor, to cause a survey to 
 be made; unless some third person is in possession claiming 
 title ; or there is some dispute about the boundary or as to 
 the location ; or he has received some information which 
 would reasonably induce him to suspect fraud. Ibid. 
 
 27. It is well settled that retention of possession by the 
 maker of a deed, forging the name of a witness to a deed and 
 the like, do not per se render a deed fraudulent, but are cir- 
 cumstances to be weighed and considered by the jury. Isler 
 v. Foy, m N. 0. R. 547. 
 
 28. Where a fraudulent grantee of land conveyed it to a 
 bona fide purchaser for value without notice of the fraud, 
 after a creditor of the fraudulent grantor had obtained a 
 judgment against him, but before the land was sold under an 
 execution issued on such judgment, and tested of the term 
 when it was obtained: it was held, (Boyden, J., dissenting,) 
 that by force of the proviso contained in the 4th section of 
 the 60th chapter of the Revised Code, (13 Eliz., ch. 5, sec 6,) 
 the title of the bona fide purchaser from the fraudulent gran- 
 tee was to be preferred to that of the purchaser under the 
 execution of the creditor of the fraudulent grantor, Youna 
 v. Lathrop, 67 K C. R. 63. 
 
FRAUD. 217 
 
 29. It is a rule of law, that where a debtor, much embar- 
 rassed, conveys property of much value to a near relative, 
 and the transaction is secret, aud no one present to witness 
 the trade except these near relatives, it must be regarded as 
 fraudulent. But where these relatives are examined as wit- 
 nesses, and depose to the fairness and bona fides of the con- 
 tract, and that there was no purpose of secrecy, it theu be- 
 came a question for the jury to determine the intent of the 
 parties, and to find the contract fraudulent, or otherwise, as 
 the evidence may satisfy them. Reiger v. Davis, 07 X. 0. 
 E. 185. 
 
 30. An absolute conveyance for a valuable consideration 
 is good, notwithstanding the intent of the maker to defraud, 
 if the grantee was not a party to such a fraud, and bought 
 without any knowledge of the corrupt intent. Ibid. 
 
 31. Where the presiding Judge of a Superior Court, at 
 one of its terms in the Fall of 1863, made a violent charge to 
 the grand jury, upon the subject of Confederate money in 
 payment of debts, in which he said, among other things, that 
 a refusal to receive such money was an indictable offence, aud 
 threatened to punish all who refused ; and where he procured 
 a presentment to be made by the grand jury against a judg- 
 ment creditor, who refused to take Confederate currency in 
 payment ot a judgment rendered in 1858, upon a bond given 
 for land, and payable in specie; and furthermore, threatened 
 said creditor that if he did not receive such currency he would 
 send him to jail, or to Richmond, Va ; and the creditor, un- 
 der fear, being an infirm old man, did receive such currency 
 in payment of his judgment, aud did execute and deliver a 
 deed for the land, which he had contracted to sell : held, that 
 the receipt of the Confederate currency, under such circum- 
 stances, was under duress, and was not a payment of the 
 judgment further than the value of such currency, and that 
 the land conveyed should be considered a security for the pur- 
 chase money. Hanshaw v. Dobin, 07 N. C. R. 203. 
 
 32 A judgment debtor who pays a debt and receives a 
 deed under such circumstances of intimidation and duress, 
 although he did not procure them to be brought about, can- 
 not avail himself of such an advantage to purpetuate an uncon- 
 scientious act. Ibid 
 
 33. The ignorance of a party who has profited by a fraud 
 will not allow him to retain the fruit of another man's mis- 
 conduct, or exempt him from the duty of restitution. Leex. 
 Pea, re, 68 X. C. R. 70- 
 
 31. Certain known and definite fiduciary relations, that,. 
 
218 FRAUD.— FUGITIVE FROM JUSTICE. 
 
 for instance, of trustee and cestui que trust, attorney and 
 client, guardian and ward and general agent, having the 
 entire management of the business of the principal, are suffi- 
 cient under our present judiciary system, to raise presump- 
 tion of fraud as a matter of law, to be laid down by the 
 Judge as decisive of the issue, unless rebutted. Other pre- 
 sumptions of fraud are matters of fact to be passed upon by 
 a jury. Ibid: 
 
 35 It is error for a Judge to charge a jury that fraud 
 must be proved by the party alleging it, " beyond a reasona- 
 ble doubt." The rule being, if the evidence creates in the 
 minds of the jury a belief that the allegation is true they 
 should so hud. Ibid. 
 
 36. A purchaser of laud from one claiming the same under 
 a deed, declared by the jury to be fraudulent, stands on no 
 better looting than the fraudulent donee himself; nor can the 
 deed of such purchaser have any other or greater effect than 
 the deed declared to be fraudulent, except such purchase was 
 for a valuable consideration, and without notice of the fraud 
 attempted to be perpetrated. Wade v. Saunders, 70 N. 0. R. 
 270. 
 
 37. Since the passage of the act of 1840, (chap. 50, Rev. 
 Code,) a purchaser of laud, with notice at the time of a for- 
 mer fraudulent conveyance, is not protected in his purchase, 
 although he paid value therefor. Triplett v. Witherspoon, 
 70 N. O. R. 589. 
 
 See (Husband and Wife — Agreements between them, 7.) 
 (Mortgage, 21.) (Vendor and Purchaser, 1, 12.) 
 
 II. IN AUCTION SALES. 
 
 Where a bidder at auction offered one who also proposed 
 to bid, that if he would desist, she would divide the land with 
 him : held, to be a fraud upon the vendor, and so, to violate 
 the contract of purchase afterwards made by her as the only 
 bidder. Whitaker v. Bond, 63 N. 0. R. 290. 
 
 FUGITIVE FROM JUSTICE. 
 
 A person applying for and receiving from a sheriff a war- 
 rant and special deputation to arrest a fugitive from justice, 
 and who executes the warrant aud delivers to the sheriff the 
 person arrested, is not entitled to the reward offered by the 
 Governor lor the apprehension of such fugitive. Malpass v. 
 Caldwell, 70 N C. R. 130. 
 
GAMING.— GRANT. 219 
 
 GAMING. 
 
 1. A note given subsequently in purchase of a magistrate's 
 judgment which had been won at cards by the payee from 
 the maker, is not void under the statute against gaming, 
 league v. Perry, 04 N. 0. R. 39. 
 
 2. The statute (Rev. Code, ch. 51, sec 2, i which avoids 
 all judgments, &c , for and on account of any money, or pro- 
 perty, or thiug in action wagered, bet, &c, does not include 
 judgments taken in invitum, but only such as are confessed, 
 or taken by consent. luid. 
 
 3. A note in renewal of a former note of the maker for 
 money won at cards, given to one who is endorsee of such 
 former note for value and without notice, is not affected by 
 the gaming consideration. Calvert v. Williams, 64 N. 0. R. 
 16S. 
 
 GRANT. 
 
 1. In a grant to one Blount, there was an exception of 
 «* 13,733 acres of land, entered by persons, whose names are 
 hereunto annexed ;" among such names was that of " Gabriel 
 Ragsdale, 100 acres ;" it was shown that this 100 acres was 
 afterwards surveyed, and granted to one Williams, under 
 whom the plaintiff claimed : held, that thereby the exception 
 in the Blount grant, as regards the 100 acres, became as cer- 
 tain as if set out by metes and bounds. Melton v. Monday, 04 
 X 0. R. 205 
 
 2. An abstract of a grant, as follows: "Sampson Wil- 
 liams, :J00 acres, Anson, on Mountain Creek, beginning at a 
 pine, &c, [bounding it.] May 24th, 1773, (signed) Jo Mar- 
 tin,"— shows with requisite certainty, that there is a grantor, 
 Martin; a grantee, Williams; a thing granted, 300 acres; 
 and that a grant was executed on the 24th of May, 1773. 
 McLenan v. ChisJwlm, 64 X. C. R. 328. 
 
 .".. Although, a party offering a grant in evidence, do not 
 connect his own title with that of the grantee, still he may 
 1m- interested in proving the title out of the State ex. gr. in 
 order to shorten the period which ripens a color of the title 
 into a good title. Ibid. 
 
220 GUARANTY.— GUARDIAN AND WARD. 
 
 GUARANTY. 
 
 1. A creditor having, in March, 1863, refused to accept 
 Confederate or State notes for certain debts contracted before 
 the late war, the debtor brought to him a bond upon a third 
 party for the amount, payable to the creditor, and he agreed 
 to take it in discharge of the debt provided the debtor would 
 sign it as surety. He did so, and the former evideuces of in- 
 debtedness were cancelled : held, that the debtor became a 
 guarantor of the bond, and was liable in assumpsit for the 
 full amount, without reference to the laws providing for a 
 sale of debts contracted during the war. Carter v. McGehee, 
 Phil. L. R. 431. 
 
 2. The assignor of a note not negotiable is liable only as 
 guarantor, and as such, is entitled to notice of the default of 
 the principal debtor. Sutton v. Owen, 65 1ST. 0. R. 123. 
 
 3. In a suit upon the following guaranty, to wit: " We, 
 the undersigned, have this day sold to T. A. J., Administra- 
 tor, &c., the notes listed above; and we bind ourselves for 
 any and all of the above-named notes, should the said T. A. J. 
 fail to collect the same : held, that the guarantors were bound 
 for the face value of the notes, principal and interest, though 
 the same might, between the maker and payee, be subject to 
 the legislative scale. James v. Long, 68 N. 0. R. 218. 
 
 GUARDIAN AND WARD. 
 
 I. Powers, duties and liabilities of II. Suit on guardian bonds, 
 guardians. 
 
 I. POWERS, DUTIES AND LIABILITIES OF GUARDIANS. 
 
 1. AVhere a guardian collected a bond due to his ward by 
 solvent persons, in November, 1863, nearly two years after 
 the ward became of age, in Confederate currency: held, that 
 at the suit of the ward he was chargeable with the fall 
 amount of the bond, and interest. Gibbs v. Gibbs, Phil. L. 
 R. 471. 
 
 2. A guardian who advances money for his ward over and 
 above the income of his estate, in order to set him up in 
 business, or for other purposes, without applying to the court 
 for leave, is not entitled to charge the ward with it. Shai* 
 v. Coble, 63 N. C. R. 377. 
 
GUAEDIAN AND WAED. 221 
 
 3. Where the administrator of a deceased ward settled 
 with the guardian in February, 1804, aud received from him 
 Confederate money at its face value in payment of the bal- 
 ance due the ward : held, that such payment was conclusive, 
 and the guardian was entitled to credit for it iu an account 
 taken between him aud his ward's next of kin. I hid. 
 
 4. Where doubts as to the propriety of an investment by 
 a guardian, are sought to be removed by him by false swear- 
 ing, the question will be decided against him. Hurdle v. 
 Leathj 03 N. 0. K. 597. 
 
 5. If a bond with two obligors, of whom the principal is 
 solvent and the surety doubtful, be accepted by a guardian, 
 he is liable if the money be lost. 1 bid. 
 
 0. Depreciated bank notes produced by a guardian on 
 settling his accounts, are not to be allowed him at par; and 
 qucere if they should be allowed at all, unless some satisfac- 
 tory explanation accompany their production. Ibid. 
 
 7. Iu passing the accounts of a guardian, he cannot, ex- 
 cept under rare circumstances, be allowed disbursements 
 beyond the income of his ward. CaJJey v. McMichael, 64 
 N. C. R. 507. 
 
 8. Where a guardian had purchased a horse aud buggy 
 for his ward, and in so doing had gone greatly beyond his 
 income, but the ward used them for some time after he 
 became of age, and then sold them, and received the money 
 for them, — he must be taken as having ratified the transac- 
 tion. Ibid 
 
 9. A guardian of an infant (some fifteen years of age,) 
 obtained judgment in her favor in July, 1801, against parties 
 who were, and remained until the surreuder, amply solvent — 
 by his direction no executiou was issued upon such judgment 
 during the war, and until his death, in March, 1800, the ad- 
 ministrator of the guardian commenced an action upon the 
 judgment in October, 1800; and before he obtained judg- 
 ment therein, the defendants sold out their property, re- 
 moved from the State, and were found to be insolvent : held, 
 that neither the guardiau nor his administrator were charge- 
 able with negligence in managing the debt due to the ward. 
 State, &c, v. Iiobinson, 04 N. O. R. 698. 
 
 10. Guardians are not responsible for losses to their wards 
 attributable to their not having resorted to new and extra- 
 ordinary remedies, the force and effect of which are doubtful. 
 Ibid. 
 
 11. If a guardian, or his personal representative after his 
 death, for his own benefit disposed of a bond which was on 
 
222 GUAKDIAN AND WARD. 
 
 its face payable to his guardian, the ward may follow the 
 bond or its proceeds in the hands of the assignee or holder. 
 And in such case, the face of the bond will be of itself express 
 notice to the assignee or holder of the breach of trust by the 
 guardian, or by his executor or administrator. Lemly v. 
 Atwood, 65 N. 0. R. 46. 
 
 12. In a case in which, under the circumstances, a guar- 
 dian was justified in Confederate treasury notes for his wards, 
 during the late civil war, he will be justified iu having con- 
 verted them into Confederate bonds even so late as the vear 
 1864. Sudderth v. MvCombs, 65 K C. K 186. 
 
 13. Where a guardian, iu the year 1850 and '60, received 
 bank notes for his wards and failed to invest them for their 
 benefit, he will be charged with the amount of the notes, with 
 interest from date of their receipt, uuless he can show some 
 good cause for his apparant default. Ibid. 
 
 14 The reception by a guardian of Confederate money in 
 the early part of the year, 1865, for the solvent debts due his 
 wards was apparently inexcusable, and it will be fov the guar- 
 dian to show circumstances in justification of his act. Ibid. 
 
 15. The Superior Court has no original jurisdiction of an 
 action for an account by an existing guardian of infant chil- 
 dren against their former guardian ; such action must be 
 brought in the Court of Probate. Ibid. 
 
 16. Under the provision of the Revised Code, ch. 54, sec. 
 23, authorizing a guardian to lend the money of his ward 
 " upon bond with sufficient security," he might, upon a loan 
 before the late civil war, have taken a bond secured by a 
 mortgage of slaves, and cawnot now be made responsible for 
 the loss of the debt by the emancipation of the slaves. Whit- 
 ford v. Foy, 65 N. C. li. 265. 
 
 17. A guardian who, before the late civil war, took from 
 the administrator of the father of his wards certain promis- 
 sory notes as a part of the effects of his wards, but did not 
 collect them and lend the money upou bonds with sufficient 
 security taken to himself as guardian, is not responsible for 
 the amount of them if they were lost by the events of the 
 war without any neglect or default ou his part, but he is re- 
 sponsible for the annual interest which he might have col- 
 lected and invested for their benefit. Ibid. 
 
 18. A bailee who misuses the thing bailed, thereby con- 
 verts it to his own use, and becomes liable for its value, 
 whether any loss occurs from such misuser or not ; but that 
 rule does not apply to a trustee, who, when no fraud is im- 
 puted, is only liable for a loss resulting from his culpable 
 negligence with regard to his trust. Ibid. 
 
GUARDIAN AND WARD. 223 
 
 19. A guardian is not responsible for having received bank 
 notes and Confederate money before Marcb, 186'-', and did 
 not invest it for the benefit of his wards, when it is shown 
 that he made a bona fide effort to do so, but was prevented 
 by the events of the war. Ibid. 
 
 20. In taking an account of a fund in the barn's of a 
 guardian in which two or more wards are interested, it is 
 proper to state a general account of the whole fund in the 
 end of each year, and also a separate account with each ward 
 to the end of the same year, crediting the ward with his 
 share of the balance found owing on the general account, 
 and debiting him with any proper debits peculiar to himself. 
 In this way the balance due to each ward at the end of each 
 year is ascertained ; and, upon the death or coming of age of 
 one of them the sum due to him will be payable immediately 
 and will cease to bear compound interest. Ibid. 
 
 21. A guardian will be allowed for reasonable counsel 
 fees paid for advice and assistance in the management of his 
 trust, and he may bo allowed also for the fees paid to counsel 
 in making a fair defence to the suit brought against him for 
 an account and settlement of his guardianship. Ibid. 
 
 22 Reasonable commissions will always be allowed to a 
 guardian unless in cases of fraud or very culpable negligence. 
 The rate will depend upon a variety of circumstauces, such 
 as the amount of the estate, the trouble in managing it, 
 whether fees have been paid to counsel for assisting him in 
 the management, the last of which will lessen it. Ibid. 
 
 23. Commissions should be allowed a guardian, ou amount 
 of the notes and other securities for debt delivered to the 
 ward upon the termination of the guardianship. Ibid. 
 
 24. A guardian, who held a well secured ante-war note, 
 and collected the same in Confederate currency, in Septem- 
 ber and October, 1803, when there was no need for its collec- 
 tion, and immediately thereafter invested the same in 7-30 
 Confederate bonds, was guilty of laches, and is liable to his 
 ward lor the full amount of the principal and interest of said 
 note. Purser v. Simpson, 05 N. C R 497. 
 
 2o. After the 4th of July, 1803, no person acting in a 
 fiduciary capacity, ought to have collected well secured ante- 
 war debts, and invested in Confederate securities. J bid. 
 
 20. A guardian who took a note in October, 1800, with 
 two securities who were abundantly good, and continued so 
 dming the war, cannot be held responsible to his wards, by 
 reason of the parties to said note having become insolvent by 
 the results of the war. Covington v. Wall, 05 .N. C. R. 594. 
 
224 GUARDIAN AND WARD. 
 
 27. A guardian who receives a note for $1,100, without 
 taking any security, is guilty of laches, and is accountable to 
 his wards for the amount of such note. Ibid. 
 
 28. It is not unreasonable to allow five per cent, commis- 
 sions to a guardian on his receipts and disbursements, which 
 •embraced a large number of receipts and vouchers, commen- 
 cing in 1857, and ending in May, 1871. Ibid. 
 
 29. A guardian is accountable to his wards for a sum of 
 money in the hands of an administrator appointed in 1857, 
 if such administrator or his sureties were solvent at the time 
 when the funds ought to have been paid to the guardian, or 
 within the time thereafter, when a judgment could have been 
 obtained upon such administration bond. Ibid. 
 
 30. A guardian or other trustee is bound only to use such 
 care and dilligence in keeping the trust fund as a prudent 
 man uses in keeping his own tunds. Atkison v. Whitehead, 
 m N. 0. R. 290. 
 
 31. Where money was stolen from an iron safe, where it 
 had been deposited by a guardian as a trust fund, with his 
 own money and valuable papers, and the theft was not dis- 
 covered for several days, and pursuit was made for the thief 
 in reasonable time : held, that the guardian iu such case was 
 not guilty of negligence. Ibid. 
 
 32. Where a guardian received from the administrator, 
 as part of his ward's distributive share, in 1804, a bond made 
 hy himself, in 1802, he must account for the value of the 
 bond as of the date it was given. Dobbins v. Osborne. 67 
 N. O. R. 259. 
 
 33. A guardian may concur, iu behalf of his ward, in a 
 partition of property in which the ward is the tenant in com- 
 mon, provided the partition be equal. But when the guardian 
 was personally interested, he cannot insist upon a partition 
 agreed to by him, by which his ward gets less thau his share. 
 McLarty v. Brown, 67 N. O. R. 311. 
 
 34. The highest degree of good faith is not exacted of a 
 guardian, but only ordinary diligence, certainly not infallible 
 judgment. Covington v. Lea, 67 IS". C. R 263. 
 
 35. Therefore, where a judgment was rendered in favor of 
 a guardian in 1863, and he refused to receive Confederate 
 money in payment thereof, and omitted the collection of the 
 same during the war, and even up to the time of his death 
 in 1868: it was held, that under the peculiar circumstauces 
 of the country he was not guilty of such negligence as to 
 charge his estate. It was further held, that, considering the 
 circumstances, in connection with the fact that the sureties 
 
GUARDIAN AND WARD. 225 
 
 on the administration bond were solvent, and still continue 
 apparently so, be was not guilty of negligence in omitting 
 to sue them. Ibid. 
 
 30. Tbe conversion by a guardian to bis own use of bonds 
 or notes belonging to bis ward, renders him liable for their 
 actual value, not the value expressed on the face of the same. 
 Winstead v. Stanfield, 08 N. 0. R. 40. 
 
 37. When a guardian makes no effort to invest bis ward's 
 money at a profit, but uses it in his own business, he coverts 
 it, and is liable for its value at the time of the conversion. 
 And having received Confederate money and bank notes, he 
 is liable for the value of the same at the date of the receipt, 
 the former to be ascertained by the scale, and that of the 
 latter upon evidence. Ibid. 
 
 38. Upon the marriage ot a/ewieward, compound interest 
 ceases, and she has no right to demand the same in a settle- 
 ment with her guardian. Ibid. 
 
 39. A guardian in good faith sold, on a credit of twenty 
 days, the cotton of his wards, taking from the purchaser his 
 note without security for the price of the cotton, the purcha- 
 ser being at the time ot the sale solvent and the owner of real 
 estate, but before the note was collected became iusolvent 
 and unable to pay the note: held, that the bona fides being* 
 established, he was not liable to his wards for failing to col- 
 lect the amount for which the cotton was sold. Lawrence v. 
 Morrison, 08 N. C. R. 162 
 
 40. A guardian who is a party to a petition to sell real 
 estate in which his ward is interested, has a right to bid for 
 and purchase the same at the sale made by a commissioner 
 under a decree of the court. Simmons v. Hassel, 08 N. 0. R. 
 213 
 
 41. Where a guardian sends his wards to a school, the 
 ■charges for board, tuition, &c, will in the absence of a special 
 contract to the contrary, be upon his individual responsibil- 
 ity, but where in a suit against the guardian for such school 
 board, tuition, &c, the answer of the defendant denies his 
 individual liability, and alleges that the credit was given by 
 the plaintiff to the estate ot his wards in his hands, an issue 
 of fact is raised as to the individual liability of the guardian, 
 •which must be submitted upon the evidence pro and eon to 
 the jury for their determination. Salem Female Academy v. 
 Phillips, 68 N. 0. R. 491. 
 
 42. Where the land of an infant was sold under a decree 
 of the Court of Equity, prior to the year, 1802, and the pur- 
 chase money was in that year paid to the Clerk and Master 
 
 15 
 
226 GUARDIAN AKD WARD. 
 
 in Confederate currency, who received it in the absence of 
 instructions not to do so : It was held, that the guardian of 
 the infant was justified in receiving the same money from the 
 Clerk and Master, and was to be made responsible to his 
 ward only for its value according to the legislative scale* 
 Johnson v. Haynes, 68 N. C. R. 509. 
 
 43. When the amount of interest with which a guardian 
 is to be charged in his settlement with his ward is doubtful,, 
 it is to be decided against him, when it appears that his 
 accounts are badly kept. Ibid. 
 
 44. A settlement made by a guardian with his ward a few 
 days after his coming of age, is not binding upon the latter 
 when it appears that he was without the advice of his friends,, 
 and that it was made under circumstances indicative of fraud 
 and circumvention. Ibid. 
 
 45. Counsel fees paid by a guardian are not to be allowed 
 in his settlement with his ward, when it appears that the 
 counsel was employed not for the advantage of the ward, but 
 solely for his own benefit. 
 
 46. A guardian cannot be allowed in an account with his 
 ward for an expenditure greater than the income of such 
 ward's estate. Johnston v. Haynes, 68 N. C. R. 514. 
 
 47. The amount of allowance of commissions to a guard- 
 ian by a referee is usually adopted by the Lourt, unless it is 
 shown to be excessive. Ibid. 
 
 48. When a guardian uses the funds of his wards in the 
 purchase of a tract of land, they can follow the land to enforce 
 the payment of the amount due them, and nothing can divest 
 their right to do so except the exercise of their own free wills 
 after coming of age, or the decree of some Court of competent 
 jurisdiction. Younce v. McBride, 68 N. C R. 532. 
 
 49. When a guardian subsequently became trustee, there 
 is no presumption of law that he ceased to hold the fund as 
 guardian as soon as he became trustee. State ex rel. Jones v. 
 Brown, 68 N. C. R. 554. 
 
 50. When a guardian received a note in settlement from 
 a former guardian which had no surety, but the maker was 
 solvent, although the taking of the bond without security was 
 negligence in the former guardian, and although the subse- 
 quent guardian was not obliged to take it, yet after he has 
 taken it, the former guardian is discharged. I bid, 
 
 51. The administrator of a deceased guardian cannot 
 maintain an action on the bond of a clerk and master for a 
 fund alleged to be due to the ward. Davis v. Fox, 69 N. C. 
 R. 435. 
 
GUABDIAX AND WAED. 227 
 
 52. "Where a gnardian purchases a claim against his wards 
 he cannot charge them with more than he paid, and the fact 
 that he was the creditor by having made proper advauces to 
 his wards, ami afterwards became bankrupt, and then pur- 
 chased the claim from his assignee, does not alter the princi- 
 ple. But the guardian must be taken to have paid himself 
 as soon as funds of his wards came to his hands, which he 
 could lawfully so apply, and the assignee took the claim sub- 
 ject to these deductions. Moore v. /Shields, 69 X. 0. E 50. 
 
 53. A guardian, who is a merchant, may, if he acts in 
 good faith, supply the necessary wants of his Wards from his 
 own stoic, and may charge a reasonable profit upon them. 
 Ibid. 
 
 54. While a guardian cannot be allowed in a settlement 
 with his wards for fees paid to his attorney to aid him in 
 keeping them out of their just rights or in supplying an un- 
 certainty or confusion in his accounts, produced by his own 
 negligence, or even in defending an action brought by them 
 for a settlement, yet he may claim the allowance of a reason- 
 able fee paid in a suit for the protection of their interests. Ibid. 
 
 55. A guardian who acted in good faith was held not to 
 be responsible for omitting to collect a note during the war, 
 and were made insolvent by its results. Love v. Logan, 69 
 N. C. E, 70. 
 
 50. A guardian had a right to purchase the land of his 
 wards at a sale by a clerk and master of our former courts of 
 equity, made by order of such court. Lee v. Howell, 69 
 N. C. E. 200. 
 
 57. Our present courts have the power to order their 
 clerks to make title directly to a subsequent bona fide purcha- 
 ser, when it appears that no title was made by the clerk 
 and master to the first purchaser, or if made, was lost. bid. 
 
 58. The guardian of A sells the land of his ward under 
 an order of our late court of equity, which is purchased by 
 B, the mother of A. B intermarries with 0, and with her 
 husband, conveys the land in trust to secure the payment of 
 the purchase money. C afterwards becomes guardian of A, 
 and directs the trustee to sell the land and to pay the pur- 
 chase money, which is done, and O buys it. A brings suit 
 for the land, or for its value, and for the rents, &c. : held, 
 that the only interest that A had in the land was as a secur- 
 ity for debt, and that the action could not be maintained. 
 Winborne v. White, 09 N. 0. E. 253. 
 
 59. When a guardian has a settlement with his ward, 
 shortly after the ward's majority, in the absence of her ad- 
 
228 GUARDIAN AND WAED. 
 
 visers and friends, the law, founded in public policy, pre- 
 sumes fraud, and throws the burden of rebutting that pre- 
 sumption upon the guardian. Harris v. Carstarplien, 69 
 N. 0. B. 416 
 
 60. Confederate money taken ia good faith, should be 
 received at its scaled value, in all fiduciary transactions : 
 therefore, a guardian who paid the taxes due from his ward's 
 estate, with his own Confederate money, can only receive 
 credit for the value thereof according to the Legislative scale. 
 Cox v. Peebles, 70 N. 0. R. 10. 
 
 61. Good faith requires that any profit which arises from 
 a transaction of the guardian in the management of the ward's 
 estate, must be for the benefit of the ward, and not of the 
 guardian. Ibid. 
 
 62. A defendant, in the exercise of due diligence, in col- 
 lecting a bond due a ward, is not required to foresee the fact, 
 that under the construction given to the Homestead law, it 
 would be held to apply to pre-existing debts ; nor the fact 
 that a levy before the adoption of the Constitution would 
 hold good, notwithstanding the provisions of such law. Wells 
 v. Sluder, TON. CE.55. 
 
 63. A party, who at first refuses to receive Confederate 
 money in payment of a debt clue a ward, is afterwards pre- 
 vailed upon so to do, by the declarations of the obligor, 
 yields to a groundless fear, and is liable to the ward for the 
 amount so received. Hid. 
 
 64. A guardian who, in 1862, exchanged North Carolina 
 six percent, bonds for North Carolina eights, when his wards 
 were of full age, aud afterwards received the semi-annual 
 interest on such bonds, and gave the guardian their receipt 
 for the same when the bonds were turned over to them, is 
 not responsible for the same, though they were lost by the 
 results of the war. Pearson v. Caldwell, 70 N. C. E. 291. 
 
 65. An action against a guardian for an account and set- 
 tlement with his ward, should commence in the probate 
 court; the mistake in the jurisdiction (as an irregularity) is 
 cured either by waiver, as when defendaut answers the com- 
 plaint, or otherwise pleads to the merits, or by the operation 
 of remedial statutes. Clodfelter v. Post, 70 N. C. E. 733. 
 
 66. When the defendant in 1854 took the guardianship 
 of the plaintiff, who as heir of a soldier killed in the Mexican 
 war, was entitled to a pension from the U. S government, 
 which facts, within the knowledge of the guardian, were suf- 
 ficient to put him on enquiry as to such pension, and where 
 the guardian had been remiss in other duties : held, that he 
 
GUARDIAN AND WARD. 229 
 
 was responsible for such pension from 1854, until bis ward 
 became of age. Ibid. 
 
 See (Confederate Money 8. 9.) 
 
 II. SUIT ON GUARDIAN BOND. 
 
 1. In an action on a guardian bond, the right of the rela- 
 tor to sue under the former system of practice and pleading 
 can be raised by demurrer, or on the plea of general issue. 
 Cobb v. Hardin, 67 N. 0. R. 472. 
 
 2. Under the old system, a trustee appointed by a Court 
 of Equity is a proper relator in an action on a guardian bond 
 to recover the trust fund. Ibid. 
 
 3. A bond may be given as a security for equitable rights, 
 and the non-performance of the decree of a Equity in relation 
 thereto may be assigned as a breach of the bond. Ibid. 
 
 4. An instrument intended as a guardian bond in which 
 the names of the wards are recited in the wrong place, and in 
 another part of said bond the names are inserted A, B and 
 others, wards, by a just and liberal construction is sufficient 
 as a guardian bond under the statute. Sprinkle v. Martin* 
 69 N. 0- R. 175. 
 
 5. In a suit on a guardian bond, evidence, that the Court 
 House of the county in which the bond was taken, was burn- 
 ed with many official papers in 18(32, and that search had 
 been made among the papers of a deceased person who was 
 Clerk at the time of the burning, and who was in the habit 
 of keeping some of the official papers at his residence, and 
 that no bond given by the guardian of the plaintiff had been 
 found, was held sufficient to authorize the introduction of 
 secondary evidence of the execution and contents of the bond 
 declared on. Harrell v. Hare, 70 N. C. R. 058. 
 
 G. A certified copy of the extracts from the records of the 
 County Court, that at August Term, 1850, the guardian of 
 the plaintiff and other minors, renewed his bond by entering 
 into another bond in the sum of $3,000 with the present de- 
 fendant and aimt her as his sureties, is competent evidence to 
 prove the existence and due execution of the bond declared 
 upon ; and a certified copy of a guardian's return is also com- 
 petent as tending to establish the amount due at the date of 
 the return. Ibid. 
 
230 HABEAS COEPUS. 
 
 HABEAS CORPUS. 
 
 1. In deciding questions which arise under writs of habeas 
 corpus, the judiciary may review and control the action of 
 the Governor in regard to points of law ; but cannot inter- 
 fere with such action in regard to any matter within the dis- 
 cretion of the Governor. In the matter of Hughes, Phil. L. 
 E. 58. 
 
 2. Tu deciding upon a question of false imjyrisonmcnt, 
 raised under a writ of habeas corpus, the judge may investi- 
 gate the validity of an order of cou't relied upon, as here, to 
 prove the petitioners to be apprentices of him who detains 
 them. In the matter of Ami) rose, Phil. L. E. 1)1. 
 
 3. By Pearson, C. J., (the other Justices, p. 820, concur- 
 ring.) A court cannot review executive action declaring a 
 county to be in a state of insurrection, under Art. XII, sec. 
 o, of the Constitution and the Act of 18G9-'70, chapter 27. 
 Moore, ex parte, 04 N. 0. E. 807. 
 
 4. Under those provisions the executive may arrest per- 
 sons by military force. Ibid., G4 N. 0. R. 808. 
 
 5. Those provisions do not suspend the privilege of the 
 writ of habeas corpus, and, therefore, under that writ, per- 
 sons arrested must be surrendered, for examination, &c, to 
 the civil authorities. Ibid and ex parte Kerr, 04 N. C. E. 
 808- -819. 
 
 6. Where a military officer detaining persons arrested in 
 counties declared to be in insurrection, as above, answered 
 to a wiit of haheas corpus, that he held them under the or- 
 ders of the Governor, who had also ordered him not to obey 
 the writ: held, that such return was a sufficient excuse, under 
 the act of 18G8-'69, ch. 1, sec 15, and, therefore, that such 
 officer was not liable to be attached. Ibid, 04 N. 0. E. 809 
 and 815. 
 
 7. The attachment warranted by that act is not upon the 
 footing of punishment for a contempt of the Judge granting 
 the writ, but on that of a substitute for the fine inflicted un- 
 der the former Habeas Corpus act. Ibid, and 04 jST. C. E. 
 819. 
 
 8. Under the circumstances of an arrest and order by the 
 Executive, such as above, it is improper to order that the 
 enforcement of the writ by the Judiciary shall be committed 
 to a sheriff of the county declared to be in insurrection ; or 
 by calling out the posse comitatus of such county ; but, inas- 
 much as the whole power of the counties of the State is un- 
 
HABEAS COEPUS- 231 
 
 der the control of the Executive, the proper direction of 
 further process is to the latter, — upon whose failure to give 
 it effect, the power of the Judiciary is exhausted, farther re- 
 sponsibility therein remaining with the Executive. Ibid, 
 and Ex parte Kerr, 64 N. 0. E. 810 and 818. 
 
 9. Under the Habeas Corpus Act, a Judge has no power 
 to order the arrest of the Governor of the State. Ibid, and 
 04 N. 0. E, 815. 
 
 10. By Pearson, 0. J. One who has petitioned for a writ 
 of Habeas Corpus may withdraw his application whenever he 
 chooses. State v. Wiley, 04 N. C. E. 823. 
 
 li. Statement of the grounds that justify the holding to 
 bail of parties charged with the commission of murder. Ibid, 
 and State v. Tarpley, 04 N C. E. 824 and 820. 
 
 12. By Dick and Settle, J J. The Chief Executive of 
 the State is not liable to arrest for acts done by him in the 
 discharge of what he may consider to be his Executive duties. 
 State v. Holden and others, 04 N. C. E. 820. 
 
 13. Brooks, J. Judges of the Federal Courts have 
 jurisdiction to issue writs of Habeas Corpus in cases where 
 the petitioners are imprisoned by State officials without due 
 2)rocess of law. Ex parte Moore and others, 04 X. C. E. 832. 
 
 14. Such Judges may require security of the peace against 
 persons threatening to repeat such imprisonment. Ibid. 
 
 15. Where the officer who held the petitioners, previous 
 to the return day of the Federal writs of Habeas Corpus re- 
 turned the petitioners before a State. Judge, in accordance 
 with State writs previously issued for the same cause, but 
 which the State Judge had heretofore not been able to en- 
 force, and had so declared himself to be : held, that he was 
 not liable to be attached by the Federal Judge for contempt 
 in so doing. Ibid. 
 
 10. The act of 1868-'69, ch. 110, sec. 37, was not intend- 
 ed to interfere with any right of the State to use condemned 
 prisoners as witnesses whenever the Solicitor deemed it for 
 the interest of the State so to do : therefore held, to be error 
 in the Court below to refuse a petition for a habeas corpus ad 
 testificandum, to bring up a prisoner confined in jail under 
 sentence of death for murder, in order that such prisoner 
 might testify in a trial for felony then pending in said Court. 
 State v. Adair, 08 X. C. E. 08." 
 
 HIGHWAY. 
 See (Road.) 
 
232 HOMESTEAD, &c. 
 
 HOMESTEAD AND PERSONAL PROP- 
 ERTY EXEMPTION. 
 
 1. Semhle, that the provision for a homestead in the pres- 
 ent Constitution of the State, is not unconstitutional, and 
 has a retrospective effect. Jacobs v. Smalhvood, 63 N. R. 112 
 
 2. The provisions of the State Constitution giving a 
 homestead and other exemptions, apply to pre-existing con- 
 tracts, as well as to such as were entered into afterwards;, 
 and do not thereby violate the provisions of the Constitution 
 of the United States in regard to the obligation of contracts. 
 Hill v. Kesler, 63 N. C. R 437. 
 
 3. Specific liens previously obtained (as here, by levy,) are 
 not divested by the provision for a homestead in the Consti- 
 tution: therefore, where a levy upon land was made in De- 
 cember, 1867, and, upon a Yen. Ex , issued in 1869, the 
 sheriff returned ''no goods, chattels, lands or tenements, to 
 be found in my county, over the homestead." Held, that he 
 was liable to be emerced for an insufficient return. McKei- 
 than v. Terry, 64 BT. C. R. 25. 
 
 4. The minor heirs of one who died before the adoption 
 of the Constitution of 1868, are not entitled to the home- 
 stead provided therein. Sluder v. Rogers, 64 N. C. R. 281). 
 
 5. A conveyance in trust to pay debts, made before the 
 adoption of the Constitution, gives to the creditors secured a 
 lieu superior to the homestead. I/Ad. 
 
 6. When the owner of land does not petition for a home- 
 stead, it is the duty of the sheriff, or other officer who has an 
 execution against him, to have it laid off under the act of 
 lS68-'9, ch 139, at the expense of the creditor, and if he 
 refuse to pay or tender the fees of the officer, he will, by vir- 
 tue of the Code of Civil Procedure, sec. 555, be justified in 
 refusing to execute the process. Lute Eeilly, 65 N. C. R 20. 
 
 7. The act of 1869-'70, ch. 121, exempting from execution 
 the reversionary interests in homesteads, is constitutional. 
 Poe v. Hardie, 65 JS T . C. R. 447. 
 
 8. The object of this act was to protect the owner thereof 
 against any vexatious litigation which might be instituted by 
 the purchaser of reversionary interest Ibid. 
 
 9. The estate in the homestead is a determinable fee, and 
 the owner thereof is not impeachable for waste. Ibid. 
 
 10. A sheriff is not required to sell the excess of realty 
 beyond the homestead, or to lay off a homestead, until the- 
 plaintiff has paid, or offered to pay, his fees for so doing. 
 Taylor v. Rhyne, 65 N. C. R. 530. 
 
HOMESTEAD, &c. 233 
 
 11. Upon the death of a man seized in fee of land, leav- 
 ing a widow and minor children, without having had a home- 
 stead laid off, the double rights of dower and homestead, do 
 not attach together simul et semel, either in the widow or 
 widow and children, but dower having been assigned to the 
 widow, the children are only entitled to a homestead sub 
 modo, I e., a present interest, the enjoyment of which is post- 
 poned until after the death of the dowress. Watts v. Leggett, 
 00 X. 0. E 107. 
 
 12. The manifest purpose of the act of 1868-'69, oh. 137, 
 is to prevent the widow and minor children from being pre- 
 judiced, by the omission of one entitled to a homestead, to 
 cause it to be laid off in his life-time. It cannot be supposed 
 that the effect of the statute is to go beyond the Constitu- 
 tion, when its professed object is to carry into effect its pro- 
 visions. Ibid. 
 
 13. A homestead and personal property exemption, uuder 
 Art. X of the Constitution aud the laws passed in pursuance 
 thereof, cannot be sold under an execution, issued upon a 
 judgment rendered in an action ex delicto. Dellinger v. 
 Tweed, 00 X. C. E. 200. 
 
 14. An execution-debtor is entitled to a homestead, as 
 against an execution, which bore teste before, but was not 
 levied until after the adoption of the Constitution. Ladd v. 
 Adams, 00 X. C E. 101. 
 
 15. The personal property exemption, provided for by 
 Ait X of the Constitution and the laws, passed pursuant 
 thereto, exists only during the life of the " homesteader" and 
 after his death passes to liis personal representative, to be 
 disposed of in a due course of administration. Johnson v. 
 Cross, 00 X. C. R. 107. 
 
 10 An execution debtor is entitled to a personal property 
 exemption, notwithstanding an execution issued against his 
 property, bore t*ste, before the adoption of the Constitution, 
 if there was no lew made until after. Horton v. Mci all, 
 00 X. E 159. 
 
 17. Whether a partner, on a deficiency of partnership 
 assets to pay partnership debts, is entitled to a personal- 
 property exemption of $500 out of such assets, in preference 
 to the said debts, and whether if such partner has individual 
 property sufficient to cover such exemption, he shall be 
 compelled to resort to that, are questions of great importance 
 and deserving serious consideration, but as the facts out of 
 which they arise are only set forth inferentially, this court 
 will not proceed to consider them, but remand the cause to 
 
234 HOMESTEAD, &c 
 
 the end that the facts may be ascertained and the rights of 
 the parties declared. Barns v. Harris, GO JST. 0. E. 509. 
 
 18. A portion of the effects of a partnership can be set 
 aside to one of the partners, as his personal property exemp- 
 tion, with the consent of the other partner or partners. 
 Without such consent it cannot be. Burns v. Harris, 07 
 NCR. 140. 
 
 19. Under article 10, of the Constitution, and the act 
 of 1808-'G9, chap. 137, a homestead may be laid off in two 
 tracts of laud not contiguous. The two not exceeding $1,000 
 in value. Martin v. Hughes, 67 X. C. R. 293. 
 
 20. There is nothing in the Constitution forbidding the 
 General Assembly from enlarging the homestead It cannot 
 reduce what the Constitution provides, but any General As- 
 sembly has the same power which the constitutional conven- 
 tion had, to exempt a homestead, and has absolute power to 
 enlarge the homestead given by the Constitution in the mat- 
 ter of value or duration oi estate, subject ouly to the restric- 
 tion of the Constitution of the United States that it shall not 
 thereby impair the obligation of the contract. Ibid. 
 
 21. A debtor is entitled to a homestead in an equity of 
 redemption, subject to the mortgage debts. Cheatham v. 
 Jones, 08 N. C. E. 153. 
 
 22. A, to whom a certain article of personal property has 
 been allotted as his personal property exemption, sold and 
 transferred the same to B for a valuable consideration : after- 
 wards the articles having been seized by a constable under an 
 attachment against A's property, B rescinds his contract 
 with A, and the property was sold by the officer : held, that 
 in a suit against the officer, A, the plaintiff had a right to 
 recover the value of the property at the time of its seizure. 
 Duvall v Rollins, 08 N. C. E. 220. 
 
 23. A chose in action if selected by the owner, may be 
 allotted as a part of the personal property exemption, secured 
 to the citizen by sec. 1, art. 10, of the Constitution. Frost 
 v. Naylor, 08 1ST. C. E. 325. 
 
 24. The allotment of exempted property may be reuewed 
 from time to time, so as to keep constantly in possession of 
 the citizen $500 worth of personal property for the comfort 
 and support of himself and family. Ibid. 
 
 25. Freeholders appointed under act of 22d August, 1 868, 
 to lay off a homestead and allot personal property exemp- 
 tion, must be sworn, and it must appear that they were 
 sworn : and they must make such a descriptive list of the 
 personal property as will enable creditors to ascertain what 
 
HOMESTEAD, &c— HOMICIDE. 235 
 
 property is exempted; and when tbe requirements have not 
 been complied with, their proceedings may be treated as a 
 nullity by creditors. Smith v. Hunt, 68 X. 0. E 482. 
 
 26. A grantor, who makes a conveyance of his land, which 
 is fraudulent as to his creditors, does not thereby forfeit his 
 right to a homestead as to such creditors. They can sell un- 
 der an execution only the remaining part of his land, leaving 
 the homestead to be contested between the alleged fraudulent 
 grantor and grantee. Crummeii v. Bennet, 08 N. 0. E ^94. 
 
 27. A widow cannot, under the Constitution and Act of 
 1868-'69,eh. 137, sec. 10, have a homestead laid off for herself 
 and minor children after the death of her husband when he 
 died without leaving debts. Hager v. ISixon, 69 N. O E. 108. 
 
 28. Before the Act of 1868, the owner of laud was not re- 
 stricted by the Constitution in the choice of his homestead to 
 the tract upon which he resided, nor to contiguous tracts, but 
 tbe same might have been assigued from any land of the re- 
 quired value. Mayko v. Cotton, 69 N. 0. E. 289. 
 
 29. The homestead laws of North Carolina do not impair 
 the obligation of contracts, and are not unconstitutional. 
 Garrett v. Chesire, 69 N. C. E. 396. 
 
 30. Our homestead law is not an increase, but a restric- 
 tion upon former exemptions, and they were not made to de- 
 feat debts, but to secure necessaries and comfort to our citi- 
 zens. Ibid. 
 
 31. A rule on a Sheriff to show cause why he has not 
 obeyed the mandate in an execution and sold certain land, 
 and the reversionary interest therein, is well answered, by 
 showing that the land had been assigned as a homestead, and 
 by pleading the act of 1870-'71, forbidding the sale of the re- 
 versionary interest, and the rule must be discharged. Jones 
 v. Wagoner, 70 X. C. E 322. 
 
 HOMICIDE. 
 
 1. In a case where the facts were, that the prisoner, a 
 vslave, was dancing, singing and making a considerable noise, 
 with other slaves, between the negro-houses and the over- 
 seers bouse, which were about thirty feet apart; that, upon 
 the overseer, (the deceased,) an elderly man, ordering them 
 to stop the noise, all did except the prisoner, who upon being 
 again ordered to stop, returned an answer which offended the 
 deceased; that the latter replied "it you say that again, I 
 
236 HOMICIDE. 
 
 will mash your mouth," whereupon he repeated the words, 
 dancing the while with his face towards the deceased, but 
 retreating towards the negro-houses ; that the deceased then 
 walked towards him with a stick (a deadly weapon) in his 
 hand, and struck him with it upon the head, twice ; and 
 thereupon the prisoner wrenched the stick from the deceased, 
 and struck him one blow with it with his utmost strength, 
 and fled ; the deceased falling, and dying in a few moments : 
 hfid, that the killing was manslaughter, and not murder. 
 State v. Brodnax, Phil L. R. 41. 
 
 2. If one lay poison for another, and he or a third person 
 take it and death result, it is murder, both in the principal 
 and accessories before the fact. State v. Fulkerson, Phil. L. 
 R. 233 
 
 3. Where one who had been insulted ran a short distance 
 to his house to procure a gun, and then pursued the deceased, 
 (who had ridden off,) in order to exact an apology, or foiling 
 in that, to do him great bodily harm, or kill him : held, that 
 if upon his approach the deceased turned upon him, putting 
 his hand to his side as if to draw a weapon, and was there- 
 upon killed by a blow of the gun, the prisoner was guilty of 
 murder. State v. Owen, Phil. L. R. 425. 
 
 4. Where the nurse of an infant, knowing that laudanum 
 was poison and likely to kill, gave the child enough to kill 
 it : held, (nothing else appearing to quality the presumption 
 of law) that she was guilty of murder. State v. Leak, Phil. 
 L. R. 450. 
 
 5. Upon a trial for murder, the fact of killing with a 
 deadly weapon being admitted or proved, the burden of show- 
 ing any matter of mitigation, excuse or justification, is thrown 
 upon the prisoner. State v. Willis, 63 N. 0. R- 26. 
 
 6 It is incumbent on the prisoner to establish such mat- 
 ter, neither beyond a reasonable doubt nor according to the 
 preponderance of testimony, but, to the satisfaction of the 
 jury. Ibid. 
 
 7. Where one who suspected his wife of being unfaithful, 
 followed her stealthily to her place of assignation, and find- 
 ing her in company with the. person of whom he was jealous, 
 slew the latter : held, that it was murder. State v. Avery, 
 64 N. 0. R. 608. 
 
 8. In a case where was some evidence tending to show 
 that a person who interferred to prevent the prisoner from 
 shooting another, had been killed accidentally, tne Judge 
 who presided at the trial instructed the jury. "If one is 
 about to do an unlawful act, and a third party interferes to 
 
HOMICIDE. 237 
 
 prevent it, and is killed, it is murder:'''' held, that as this pro- 
 position included cases of accidental homicide, it was erro- 
 neous. State v. Shirley, 64 N. C. R. 6L0. 
 
 9. A number of Indians had been together at a dance- 
 house, and a right had occurred there, to which the prisoner 
 and the deceased were parties; at the breaking up of the 
 dance, the prisoner and another, who was charged with the 
 murder, were walking together towards their homes, when 
 the deceased came up, and another right ensued, between the 
 prisoner and his companion on one side, and the deceased, 
 upon the other, in the course of which the killing occurred: 
 held, that these tacts constituted no evidence of a combina- 
 tion, between the persons charged, to commit the homicide: 
 That it was error to instruct the jury, that if there were pre- 
 vious malice on the part of the prisoner towards the deceased, 
 then, even in case the prisoner fought in self-defence, he was 
 guilty of murder; and, as the Court to which the prisoner 
 appealed could not tell how much the latter may have been 
 prejudiced by the charge, even where the verdict was for 
 manslaughter only, a new trial should be granted. State v. 
 Tachanatah, 04 N. C. R. 614. 
 
 10. If A attempts to pursue B into a house, and the latter 
 shuts the door so that A cannot enter, and A attempts to 
 break the door open with an axe, and B opens the door, when 
 he is collared by A, and a fight ensues, and B is killed by a 
 deadly weapon, it is murder. State v. llargett, 05 N. C. R. 
 069. " 
 
 11. If two men fight upon a sudden quarrel, and one kills 
 the other, the chances being equal, this constitutes man- 
 slaughter. State v. Massage, 05 N. C. R 480. 
 
 12. The question ot "cooling time," is a question of law 
 to be decided bv the Court, and not a question for the jury. 
 Mate v. Moore, 69 N. C. R. 267. 
 
 13. If such a question be left to the jury, and they decided 
 it as the Court should have decided it, this error is no cause 
 for a new trial. Ibid. 
 
 14. The separation of two persons engaged in fist-fight, 
 which eventually terminates in a homicide, to justify a verdict 
 of murder, the interval must be for a time sufficient for the pas- 
 sions excited by the fight to have subsided, and reason to have 
 resumed its sway. Hence, where one witness testilied that the 
 prisoner was "absent no time," and another, that after the 
 first fight he started to go home, and looking back the parties 
 were again lighting: held, there was not such sufficient cool- 
 ing time as to justify a verdict of murder. Ibid. 
 
238 
 
 HUSBAND AND WIFE— I. 
 
 HUSBAND AND WIFE. 
 
 I. Of marriage. 
 II. Husl tand's interest in his wife's 
 
 property. 
 III. Wife's power over her separate 
 
 estate. 
 
 IV. Agreement between husband 
 
 and wife. 
 V. Conveyances by them. 
 VI. When wife is supposed to act 
 
 under husband's coertiou. 
 
 I. OF MARRIAGE. 
 
 1. Where a marriage has been solemnized according to 
 the laws of another one of the United States, between per- 
 sons free to marry according to such laws, and the parties 
 afterwards for several years conduct themselves as husband 
 and wife, having children, &c, it seems that an indictment 
 for fornication and adultery is not the proper method of test- 
 ing the validity of such marriage. State v. Schlachter, Phil. 
 L. R. 520. 
 
 2. A couple domiciled in New York, intermarried there in 
 1856, and subsequently (before 1861) removed to North 
 Carolina; in January, 1804, the wife removed again to New 
 York, in December, 1864, she obtained a divorce, and in 
 January, 1865, remarried, (both acts being in accordance 
 with the laws of New York); afterwards she returned to 
 North Carolina with her second husband, and they lived 
 together as man and wife : held, that there was nothing in 
 the doctrines of Irby v. Wilson, 1 1). & B. 568, to impeach 
 such divorce and second marriage, and that it seems that the 
 marriage, being in accordance with the laws of the State 
 where it was solemnized, cannot be impeached in the courts 
 of another State. Ibid. 
 
 3. The prisoner and a woman offered as a witness in his 
 behalf having lived together as husband and wife while they 
 were slaves, and having subsequently observed the ceremonies 
 required by the Act of 1866, ch 40, sec. 5: held, that they 
 were legally married, and her testimony properly excluded. 
 State v. Harris, 63 N. C. R. 1. 
 
 4. It is competent for the Legislature, by retrospective 
 legislation, to give validity to a marriage which is invalid by 
 reason of the non-observance of some solemnity required by 
 statute; aliter where such marriage is a nullity, as for want 
 of consent, &c. Cooke v. Cooke, Phil L. R. 583. 
 
 5. A marriage solemnized upon the 15th day of June, 
 1865, in Wake county, by one who during the existence of 
 the Confederate government had been appointed a justice of 
 
HUSBAND AND WIFE— II— III. 230 
 
 the peace, is within the provisions of the ordinance of Octo- 
 ber 18th, 1865, entitled, An ordinance declaring what laws, 
 and ordinances are in force, &c, and is rendered valid there- 
 by. Ibid. 
 
 See (Indians 5, 0.) 
 
 II. HUSBAND'S INTEREST IN HIS WIFE'S PROPERTY. 
 
 1. Where a married woman, entitled to personal property 
 in remainder alter a life estate, dies before the tenant for 
 life, upon the death of such tenant, her administrator will 
 take it for the benefit of her husband. If her husband then 
 die leaving an executor, the latter will take the benefical 
 interest. Colson v. Martin, Phil. Eq. li. 125. 
 
 2. A tenant by the curtesy consummate may sell his 
 estate notwithstanding the act, Rev. Code, chap 50, sec. 1. 
 Long v. Graehcr, 04 N. C. R. 431. 
 
 3. A tenant by the curtesy initiate, has a right to sue 
 alone tor the possession of his wife's land, and for damages 
 for the detention of it. Wilson v. Aients, 70 N. 0. R. 670. 
 
 4. xV complaint by a husband which states that he was 
 married to his wife in 1841, and that he had by her several liv- 
 ing children, and that she acquired the land in question by a 
 deed executed to her in 1840, is sufficient to show his title as 
 tenant by the curtesy initiate of the land; and the tact that 
 the act of 1848, (Battle's Eev. Ch. 69, sec. 33,) deprives him 
 of the power to lease the land, without the consent of his 
 wife, will not prevent his recovery, of the land by an action 
 under the C. C. P., without joining his wife as a party. 
 Ibid. 
 
 III. WIFE'S POWER OVER HER SEPARATE PROPERTY. 
 
 1. If one, who has a general power over an estate, exer- 
 cises it for purposes regarded as secondary, a Court of Equity 
 will hold snch estate as thereby rendered liable to all the usual 
 incidents of property. Rogers v. Ilinton, Phil. Eq. R. 101. 
 
 2. Therefore, where a feme covert, who had a separate es- 
 tate, with a general power of appointing the same by deed or 
 will, disposed of such estate, to various devisees and legatees, 
 subjecting expressly only a portion of it to the payment of 
 ber debts: held, that her creditors had a right to resort to 
 the whole estate for their satisfaction. Ibid. 
 
 3. Where a feme covet, who had a separate estate of realty 
 arid personalty, with a general power of appointing the same 
 by deed or will, disposed of such estate by will to various de- 
 
240 HUSBAND AND WIFE— III.— IV. 
 
 visees and legatees, subjecting expressly -only a portion of it 
 to the payment of her debts: held, that her creditors had a 
 right to resort to the whole estate for their satisfaction. Ro- 
 gers v. Hinton, 63 ST. 0. R. 78. 
 
 4. Also, that there is no distinction in this respect be- 
 tween the realty and the personalty. Ibid. 
 
 5. Where land was bought with money forming a portion 
 of the separate estate of a wife, and by mistake the title was 
 made to the husband, and subsequently the land was sold un- 
 der execution by creditors of the husband, and was bought by 
 them, with notice, dec: held, that upon application by the 
 wife, the purchasers would be declared trustees for her, and 
 whether they purchased with notice or without, was immate- 
 rial. Whitehead v. Whitehead, 64 N. 0. R 538. 
 
 6. The separate estate of a feme covert, is chargeable with 
 her contracts, for money borrowed with the assent of her 
 trustee, upon the credit aud for the improvement of such es- 
 tate, although the estate is not charged by, or referred to, in 
 the contract. Withers v. Sparrow, 66 N. C. R. 129. 
 
 See (Trusts and Trustees, 26, 27.) 
 
 IV. AGREEMENT BETWEEN HUSBAND AND WIFE. 
 
 1. Articles of separatiou between husband and wife, 
 whether entered into before or after the separation, are 
 against law and public policy, and therefore void* Collins v. 
 Collins, Phil Eq. R. 153. 
 
 2. Where a man, upon eve of marriage, agreed with his 
 intended wife that a previous transaction, by "which he had 
 mortgaged a certain tract of land to one, who was a trustee 
 for children of hers, in order to secure a part of the purchase 
 money diie for such land, should be cancelled, and that, in 
 lieu of what was due, which exceeded the then value of such 
 land, the land should be conveyed to such children ; and this 
 was done : held, that this was not an act of which creditors 
 of the husband could complain ; and also, that there was 
 nothing in the Statute [Rev. Code, c. 37, s. 24,] that required 
 such agreement to be in tvnting. Creedle v. Carawan, 64 
 N. C. C. 422. 
 
 3. When a marriage contract is in these words, viz: 
 " That the said J H, is entitled to have the entire disposal 
 of her own property, as, her own judgment may see proper, 
 at her death. If she should die before the said D W, then 
 she doth give aud allow him to hold for his benefit all my 
 estate, real and personal all his life time, and at his death the 
 
HUSBAND AND WIFE— IV— V. 241 
 
 said property to be divided up, as I, J H hath directed it to 
 be done, at my death, This obligation to be kept iu good 
 faith by both parties." It was held, that the legal effect of 
 the contract was to give to W D, (the husband) the use of 
 the property during his life, and after his death to revert to 
 his wife, the said J H. Morrison v. White, 07 N. 0. E. 253. 
 
 4. Where there is no express contract between husband 
 iind wife, the law of the matrimonial domicil controls, as to 
 the rights of property, there situate, and as to personal pro- 
 perty every where. Therefore, where a bond was given by a 
 man to a single woman, both parties being resident iu the 
 State of Pennsylvania, and a judgment was obtained in the 
 Courts of this State, and the parties afterwards married in 
 Pennsylvania: it was held, that the rights of the parties in 
 reference to said judgment were governed by the laws of 
 Pennsylvania, whereby, "All the estate or property, which 
 may be owned by any single woman, continues to be hers 
 after marriage." Craeoff v. Morehead, 07 N. 0. R. 422. 
 
 5 If a husband obtain from his wife a provision in his 
 favor much more beneficial to him than that which was stipu- 
 lated for him in an ante-nuptial marriage settlement, it comes 
 within the principle applicable to other intimate fiduciary 
 relations, and raises a presumption of fraud unless rebutted 
 by evidence to the contrary. McBae v. Battle, 09 N. 0. R. 
 98. 
 
 6. Since the act of 1848, a husband has the right to sur- 
 render his estate as tenant by the curtesy initiate, and let it 
 merge iu the reversion of his wife, who, with the assent of 
 her husband, may sell the same and receive the whole of the 
 purchase money. Teague v. Downs, 09 N. 0. R. 280. 
 
 7. And an agreement that the wife shall receive such 
 price in personal property and hold the same to her separate 
 use, to enable her to lay it out in the purchase of another 
 tract of land, is valid, such price not vesting iu the husband, 
 jure mariti, so as to subject the same to the claims of his 
 creditors. 1 hid. 
 
 See (Trusts and Trustees 25, 50 ) 
 
 V. CONVEYANCES BY THEM. 
 
 1. By sec. 9, chap. 37, of the Rev. Statutes, " all convey- 
 ances in writing by husband and wife for any laud, person- 
 ally acknowledged before a Judge, &c, the wife being privily 
 examined, &c, shall be as valid to convey the wife's estate 
 in such lands as she may have, whether in fee simple or oth- 
 10 
 
242 HUSBAND AND WIFE— V. 
 
 envise, as if it were done by fine and recovery, and if a com- 
 missioner be appointed under sec. 10 of said act, to take such 
 acknowledgment, privy examination," &c, "it shall be as 
 effectual as if personally acknowledged before the Judge or 
 county court." Revised Statutes, sees. 9 and 10, chap. 37. 
 Woodburne v. Gorrell, 66 N. 0. R. 82 
 
 2. Fines and recoveries are matters of record in the court 
 of Common Pleas in England, and cannot be impeached col- 
 laterally in an action ot ejectment, or vacated or set aside 
 without some direct proceeding, instituted for that purpose. 
 Ibid. 
 
 3. In this State, the acknowledgment and examination of 
 a married woman before a Judge or county court, as the law 
 was in 1833, has the force of, and is in fact, a record. She 
 cannot be heard to impeach the truth of the record or vacate 
 the same, although the examination was not separate and 
 apart from her husband, and she was subject to the influence 
 of his presence, and although she was not of sound mind 
 and could not il voluntarily assent thereto" Ibid. 
 
 4. Possibly : When the examination is taken by a com- 
 missioner, a married woman may maintain a bill in equity, to 
 cancel the deed on the ground of fraud, and a false certificate 
 by the commissioners. Yet this assurance of title, and con- 
 veyance of record cannot be impeached collaterally in an 
 action to recover the laud. Ibid. 
 
 5. This proceeding and record is not a mere deed, so far 
 as a married woman is concerned, but is " an assurance of 
 title by record," it is not a mere probate for the sake of reg- 
 istration, but is a " fine," and puts an end to the matter- 
 Ibid. 
 
 6. Husband and wife in 1869, contracted to sell the land 
 devised to the wife in 1855, and jointly covenanted to make 
 title when the purchase mouey was paid, the purchaser giv- 
 kig bonds payable to the husband alone for the purchase 
 money : held, to be error in the Court below to condemn this 
 debt owing by the purchaser of the lands, to the payment of 
 a debt due from the husband: held further, that the wife 
 was entitled to be heard on motion, in the proceedings sup- 
 plemental to execution, instituted to subject the debt owing 
 for the land to the payment of a debt owing by the husband. 
 Williams v. Green, 68 N. C. R. 183. 
 
 7. To take the acknowledgment and private examination 
 of a, feme covert to a deed conveying her land is a judicial act, 
 ■And when duly taken, the deed so acknowledged is an assur- 
 
HUSBAND AND WIFE— V.— INDIANS. 243 
 
 auce of record, like a fine in England. Paul v. Carpenter, 70 
 N. 0. R. 502. 
 
 8. An acknowledgment and private examination taken b} r 
 the Provost Marshal of the citv of Newbern, while that place 
 was in possession of the United States' military authorities, 
 in the absence of fraud and the like, is good, having a similar 
 effect with foreign judgments. Ibid. 
 
 VI. WHEN WIFE IS SUPPOSED TO ACT UNDER THE COERTION OF THE HUSBAND. 
 
 See (Assault and Battery, 15, 1(1, 17.) 
 
 INDIANS. 
 
 1. The laws of North Carolina permit resident Cherokee 
 Indians to take and hold land by grant. Colvord v. Monroe, 
 03 N. C. R. 288. 
 
 2. The law providing that contracts with Indians shall be 
 subscribed by two witnesses, does not require the probate for 
 registration to be by both. Ibid. 
 
 3. Where one of the two witnesses to such a contract, 
 stated upon oath that he could not recollect having subscribed 
 it, it was competent to establish that fact by other testi- 
 mony. Ibid. 
 
 4. The Cherokee Indians who reside in North Carolina, 
 are subject to its criminal laws. State v. Tavhanatah, 04 N. 
 C. K. 614. 
 
 5. Cohabitation between an Indian man and woman ac- 
 cording to the ancient customs of their tribe, which leave the 
 parties free to dissolve the connexion at pleasure, is not mar- 
 riage, and, therefore, the parties to such relation, may be 
 compelled to testify against each other. Ibid. 
 
 0. There is but one law of marriage for all the residents 
 of this State. Ibid. 
 
244 INDICTMENT— I. 
 
 INDICTMENT, 
 
 I. When au indictment will lie or not. 
 II. Time in which an indictment 
 will lie. 
 
 III. Quashing indictments. 
 
 IV. Form and matters relating 
 
 V. Plea of former acquittal or con- 
 viction. 
 VI. Removal of into the United 
 
 States Courts. 
 VII. Of the trial, verdict and judg- 
 
 thereto. | me nt. 
 
 I. WHEN AN INDICTMENT WILL LIE OR NOT. 
 
 1. The forcible detainer of personal property is not indict- 
 able at common law. State v. Marsh, 04 N. C. E. 378. 
 
 2. One tenant in common law does no wrong, (civil or 
 criminal,) to a co-tenant by keeping sole possession of, ex. gr., 
 a bale ot cotton, even by force. Ibid. 
 
 3. A husband who wilfully abandoned his wife prior to 
 the ratification of the act of 1869, chap. 209, (Bat. Eev., ch. 
 32, sec. 120,) cannot be convicted therefor. Justices of the 
 Peace have concurrent jurisdiction with the Superior Courts 
 under said act. State v. Deaton, 06 N. 0. E. 493. 
 
 4. The act of 1868-'09, chap. 18, (Bat, Rev., ch. 12, sec. 
 117,) creates two offences : 1st. Hunting on the Sabbath 
 with a dog 2d. Being found off one's premises having a 
 shot-gun, rifle or pistol. Therefore, a conviction is sustain- 
 able under au indictment charging the defendant with being 
 " found off his premises on the Sabbath day, having with 
 him a shot-gun, contrary to the form of the statute," &c. 
 State v. Howard, 67 N. 0. E. 24. 
 
 5. General words in a statute do not authorize an act to 
 be done, which is expressly prohibited by a former statute ; 
 plain and positive words must be used. State v. A. J. Jones, 
 67 N 0. E. 242. 
 
 6 The act of the General Assembly, ratified February 
 16th, 1871, requiring "the President and Directors of the 
 several Railroad Companies of this State, upon demand, to 
 account with and transfer to their successors, all the money, 
 books, aud choses in action belonging to such company," is 
 sufficiently general in its language, taken by itself, to embiace 
 bonds of the State, but the said act must be taken and con- 
 strued in connection with two other acts, viz: Act Februaiy 
 5th, 1870, and act March 8th, 1870. Thus taken aud con- 
 strued, the acts of February 5th, 1870, and March 8th, 1870, 
 dispose of the bonds known as special tax bonds, and the act 
 of 1871 has reference only to " money, choses in action, pro- 
 perty and effects belonging to the compauy. Ibid. 
 
INDICTMENT— L— II. 245 
 
 7. Therefore, an indictment under the said act of Febru- 
 ary, 1871, cannot be sustained against a former President of 
 the Western Railroad Company, for refusing to transfer to 
 his successor in office certain special tax bonds, which were 
 issued under an act ratified February 3d, 1869, and which 
 came into the hands of the said former President for the use 
 and benefit of the company Ibid. 
 
 8. A civil action may be maintained against a Justice 
 who acts without his jurisdiction, and also if he acts irregu- 
 larly and oppressively ; but he is not liable for a mere mis- 
 take, or error of judgment. To maintain a criminal action 
 against a Justice, it must be alleged and shown that he acted 
 without his jurisdiction, or corruptly, and with a criminal in- 
 tent, or at least maliciously and without probable cause. 
 State v. Furguson, 67 N. C. R 219. 
 
 9 A person who acts in good faith, and makes a lawful 
 application to a Justice of the Peace for relief within his juris- 
 diction, cannot be held criminally responsible for any irregu- 
 larities in the proceedings before the said Justice. Ibid. 
 
 10. A person standing in loco parentis cannot be held 
 criminally responsible for correcting the son of the woman 
 with whom, at the time, he was living as man and wife, unless 
 the punishment inflicted exceed the bounds of moderation 
 and tended to cause permanent injury. State v. Alford, 68 
 8. 0. R. 322. • 
 
 11. The disturbance of a religious congregation by sing- 
 ing, when the singer does not intend so to disturb it, but is 
 conscientiously taking part in the religious services, may 
 be a proper subject for the discipline of his church, but is not 
 indictable. State v. IArilthaw, 69 N. C. R. 214. 
 
 II. TIME IN WHICH AN INDICTMENT WILL LIE. 
 
 1. When an assault and battery was committed on the 
 12th day of March, 1869, and a bill of indictment was sent 
 and found a true hill on the 17th day of April, 1871 ; held, 
 that the statute of limitations was a bar to the prosecution, 
 notwithstanding a warrant was issued on the 12th day of 
 March, 1871, tried on the 17th of April, and dismissed at the 
 prosecutor's cost. State v. Mason, 66 N. C. R. 636. 
 
 2. The law is well settled, that a person born on the first 
 day of the year will be twenty-one years of age on the list 
 day of the year, and on the earliest moment of the day. For 
 such purposes the law does not regard the fractions of a day. 
 J bid. 
 
240 IXDICTMENT— III. 
 
 III. QUASHING INDICTMENTS. 
 
 1. It is no ground to quash an indictment, that it was 
 found by a grand jury drawn from a venire in which there 
 were no colored freeholders — the jury list, as constituted by 
 the county court in accordance with the law in force at the 
 time of its constitution, not containing the names of such col- 
 ored freeholders. State v. Taylor, Phil. L. li. 508. 
 
 2. A motion to quash an indictment will not be allowed 
 after a verdict. State v. Jarvis, 03 N. C. 11. 550. 
 
 3. Indictments found (here, at Spring Term, 1807,) under 
 the late Provisional Government of the State, are valid, and 
 are to be heard and ended under the present Government. 
 Ibid. 
 
 4. If a bill of indictment be endorsed " a true bill," by 
 mistake, when the grand jury had ordered their Clerk to 
 endorse it " not a true bill," the defendant may show that 
 fact by affidavit or otherwise, either upon a motion to quash 
 or upon a plea in abatement, and thereupon the indictment 
 should be quashed. State v. Barton, 03 N. O. R. 595. 
 
 5. It is error to quash an indictment which charges in 
 one couut the stealing oue otter, confined in the trap of one 
 J. D. P., and in an other count " a certain dead otter of the 
 value of one dollar of the goods and chattels of the said J. 
 D. P." Stale v. House, 05 N. 0. E. 325. 
 
 0. If an indictment be clearly defective, the court upon 
 motion will quash, whether the charge be for a felony or a less 
 offence. State v. Sloan, 07 N. C. R. 357. 
 
 7. An indictment need not be certain " to a certain intent 
 in every particular ;" but it is indisputable, that when a stat- 
 ute enacts, that any of a particular class of persons who shall 
 do or omit to do an act under certain circumstances shall be 
 guilty of a crime, the indictment under that statute must 
 describe the person indicted as one of the class, and aver that 
 he did, or omitted to do, the act charged, under circumstances 
 which make it a crime. 1 bid. 
 
 8. Therefore, where an indictment framed under chap. 
 38, acts of 180i)-'70, failed to aver that the accused was the 
 President of a Railroad Company, in which the State had an 
 interest, and also failed to aver that he had received the 
 State bonds under some act of the Legislature or ordinance 
 of the Convention, passed since May, A. D., 1805; it was 
 held, that such au indictment was fatally defective, and 
 should be quashed. Ibid. 
 
INDICTMENT— IV. 247 
 
 IV. FORM AND MATTERS RELATING THERETO. 
 
 1. An indictment for receiving stolen goods must contain 
 an averment of the person from whom they were received. 
 State v Beatty, Phil. L. R. 52. (Overruled in State v. Minton, 
 
 infra 196.) . 
 
 2. Where the joining of two counts is permitted by 
 statute, they ought not upon that account to conclude against 
 the statute. 1 bid. 
 
 3. Where an indictment described the article stolen (here 
 corn,) as being the " property" of the owner, instead of being 
 of his " goods and chattels " : held, to be sufficient. Ibid. 
 
 4. An indictment for larceny, charging the thing stolen 
 as the property of A B, " a person of color ;" and concluding 
 at common law, is good. State v. Glisson, Phil. L. E. 105. 
 
 5. An indictment for receiving stolen goods of a value 
 less than twelve pence, must conclude against the form of the 
 statute. State v. Minton, Phil. L. R. 190. 
 
 <;. An indictment for the murder of a person who was a 
 slave at the time of his death, cannot be supported unless 
 the fact of his being a slave is set out. State v. Penland, 
 Phil. L. R. 222. 
 
 7. What constitutes a sufficient desuriptio persona in bills 
 of indictment charging offences by or upon persons in the 
 different classes of society, stared by Pearson, C. J. Ibid. 
 
 8. A stick with which the mortal blow was given may 
 well be described in an indictment for murder, as "a certain 
 stick of no value." State v. Smith, Phil. L. K. 340. 
 
 9. Where the thing stolen is at the time of stealing in a 
 raw or unmanufactured state, it may be described in an in- 
 dictment for receiving stolen goods, by its name and as so 
 much thereof in quantity, weight, or measure, but if at that 
 time it had been worked up into a specific article, and .so re- 
 mains, it must be described by the name by which such ar- 
 ticle is generally known. State v. Horan, Phil. L. li. 571. 
 
 10. "A cast iron top of an iron box," which when stolen 
 had been separated from the box, may be well described in 
 an indictment for receiving stolen goods, as one pound of 
 iron, and the fact that it weighed more or less than one 
 pound will make no difference. Ibid. 
 
 11. When the punishment for a common law offence has 
 been mitigated by statue, it is not proper that the indict- 
 ment shall conclude " against the form of the statute." 
 State v. Ratts, 65 N. 0. II. 503. 
 
 12. That an indictment concludes against the form of the 
 
248 INDICTMENT— IV. 
 
 Statue, instead of Statute, is no ground for an arrest of 
 judgment. State v. Smith, 63 N. 0. R. 234. 
 
 13. An indictment for an act which is criminal when com- 
 mitted upon Sunday, must state that the act in question was 
 committed upon Sunday ; but if it do so, no exception can 
 be taken to it for reference to the same day bv a wrong day 
 of the month. State v. Drake, 64 N. C. R. 581). 
 
 14. It is immaterial that the indictment use the expres- 
 sion, " the Sabbath " instead of " Sunday." Ibid. 
 
 15. A misrecital of the proper county in the caption of an 
 indictment furnishes no ground for arrest of judgment. State 
 v. Sprinkle, 65 N. 0. R. 463. 
 
 16 Semble : Such an indictment would have been suffi- 
 cient before the act. Rev. Code, chap 35, sec. 14. Bat. 
 Rev , ch. 33, sec. 60. Ibid. 
 
 17 An indictment for murder which charges that the 
 prisoners on the deceased " did make an assault and in some 
 way and manner, and by some means, instruments and 
 weapons to the jurors unknown, did then and there feloni- 
 ously, wilfully, and of their malice aforethought deprive him, 
 the said A of his life, so that the said A did then and there 
 instantly die," &c, is sufficient, although the evidence pre- 
 sents different ways and means by which the deceased might 
 have been killed. State v. Parker, 65 N. C. R. 453. 
 
 18. A count in an indictment must be complete in itself, 
 and contain all the material allegations which constitute the 
 offence charged. Therefore a count charging defendant with 
 receiving of stolen goods, is defective, which does not con- 
 tain the name of the defendant in the proper place, and dis- 
 tinctly charge him with receiving the stolen goods. State v. 
 Phelps, 65 N. 0. R 450. 
 
 19. This defect is not cured by the statute, Rev. Code,, 
 chap. 35, sec. 14, (Bat Rev., ch. 33, sec. 60,) aud judgment 
 will be arrested. Ibid. 
 
 20. Where time is not the essence of the offence, and there 
 is but one statute applicable to the matter, although that 
 statute be recent, or recent aud not to take effect until after 
 a specified time, the indictment need not contain an aver- 
 ment that the offeuce was committed after the statute went 
 into operation. State v. Wise, (i6 N. C. R. 620 
 
 21. But there are two statutes in reference to the same- 
 offence, and the one of subsequent date changes the nature 
 of the offence, or the punishment of the same, the indict- 
 ment must, by proper averment, refer to the statute under 
 which it was found, so that the court may see the exact 
 
INDICTMENT— IV. 249 
 
 character of the offence, and the nature and measure of the 
 punishment to be imposed. Ibid. 
 
 22. The 20th sec. 35th ch. Rev. Code, is intended to cure 
 only formal defects in the indictment, after judgment, and 
 not omission of averments, necessary to enable the court to 
 give judgment intelligently, and, as in this case, to see wheth- 
 er to proceed under the one statute or the other. Ibid. 
 
 23. Therefore, where, by the act of 18G9, the punishment 
 for arson was confinement in the penitentiary, and by the act 
 of 1871, death, and the offence was committed after the last 
 mentioned act, but the time designated in the indictment 
 was before it, and there was no averment in the indictment 
 specifying which of the two acts it was found under, and 
 there was a verdict of guilty, and judgment of death; held, 
 that the judgment must be arrested. Ibid. 
 
 24. When an order was forged and drawn, in the name 
 of an overseer and agent upon the principal, and the purpose 
 was to defraud the principal, the indictment for such forgery 
 must aver that the person whose name was forged, was the 
 agent, and that he had authority to draw upon his principal; 
 otherwise, the court cannot see that the false paper had a 
 tendency to defraud the principal, or how it could have been 
 issued for such a purpose. State v. Thorn, 00 N. C. R. 044. 
 
 25. In an indictment under the act of 1868-'69, ch. 253, 
 (Battle's Rev. chap. 32, sec. 95,) concerning the killing, &c 
 of stock "in an enclosure not surrounded by a lawful fence," 
 which simply charges the injury, &c , to have been committed 
 on stuck in "the field" of one A B, is not certain to that 
 extent required in such pleading, and after a conviction on 
 such indictment, a motion in arrest of judgment will be sus- 
 tained. State v. Stanton, 00 N. C. It. 040. 
 
 2(>. Such a defect is not an informality or refinement 
 within the purview of the 14th sec. 35th chapter of the Rev. 
 Code, but is a failure to express the charge against the defen- 
 dant in a plain, intelligible and explicit manner. Ibid. 
 
 27. Where a bill of indictment for murder did not allege 
 the time ot the death, nor that it occurred within a year and 
 a day from the time when the wound was indicted, but used 
 these words, "of which said mortal wound the said ,). H. did 
 languish, and then and there did die :" held, that the charge 
 in the indictment was sufficient ; especially under the act of 
 the General Assembly, Rev. Code, chap. 35, sees. 15 and 20, 
 Bat. Rev. chap. 33, sees. 00 and 0<S. State v. Haney, 07 
 N. C R. 407. 
 
 28. It is still necessary, in an indictment for felony, in this 
 
250 INDICTMENT— IV. 
 
 State, to charge the act constituting the crime to have been 
 done "feloniously," and that word cannot be supplied by any 
 equivalent. State v. Purdie, 07 N. C. R. 25. 
 
 29. An indictment for rape, charging that the assault was 
 violent and felonious, and that the ravishing was felonious, 
 and against the will of the prosecutrix, is sufficient. State 
 v. Thos. Johnson, 07 N. 0. R. oo. 
 
 30. The name of the person ravished was charged in the 
 indictment as Susan, while her real name was Susannah, 
 though she was generally called Susan : held, to be no ground 
 of objection. Ibid. 
 
 31. An indictment charging that the defendant " unlaw- 
 fully, wilfully and maliciously did enter upon the lands of R. 
 B., there situate, and did then and there set tire to the woods 
 on said land, is sufficient under 20th section, chap. 35, lie- 
 vised Code. (Bat. lie v., ch. 33, sec. 00.) State v. Purdie, 
 07 N. C. R. 320. 
 
 32. An averment in an indictment for highway robbery, 
 ''That W. W, late of the county of Yancey, at and in the 
 county aforesaid, in the common highway of the State, did 
 then and there feloniously assault one F. L., and did then 
 and there put him in fear of his life, and ten pounds of cof- 
 fee, &c, did then and there feloniously and violently steal, 
 take and carry away, &c," is made with sufficient certainty. 
 There is sufficient certainty to support a plea of autrefois 
 acquit, or convict, and sufficient certainty to apprise a pris- 
 oner of the place where the offence was committed. State 
 v. Wilson, 07 N. O. R. 450. 
 
 33. The word "feloniously" is absolutely necessary in every 
 indictment charging a felony, and it cannot be dispensed 
 with or its use supplied by any circumlocution, btate v. 
 Ruclcer,m N. 0. R. 211. 
 
 34. To make profane swearing a nuisance, the profanity 
 charged must be uttered in the hearing of divers persons ; 
 and it must be charged in the bill of indictment, and proved 
 to have been so uttered. The general allegation ad commune 
 nocumentum is insufficient. State v. Pepper, 08 N. O. R. 250. 
 
 35. Hence, where the indictment alleged that the defen- 
 dant " in the public streets of the town of L., with force and 
 arms, and to the great displeasure of Almighty God, and 
 the common nuisance of all good citizens of the State then 
 and there assembled, did, for a long time, to-wit: for the 
 space of twelve seconds, profanely curse and swear, and take 
 the name of Almighty God in vain, to the common nuisance, 
 &c": held, that no criminal offence was therein charged. 
 Ibid. 
 
INDICTMENT— IV. 251 
 
 3G. A makes a crop of cotton on the plantation of B, uu- 
 der verbal agreement that B is to have half of it, and while 
 the cotton is in the house waiting to be ginned, and before 
 any division, it is stolen : Held, that in the indictment the 
 cotton was properly charged to be the property of A and an- 
 other. State v. Patterson, G8 N. 0. R , 292. 
 
 37. In an indictment for murder, the assault is charged 
 to have been made on one " N. 8. Jarrett," and in subse- 
 quent parts of the indictment he is described as " Nimrod S. 
 Jarrett:" Htld, to be no variance. State v. Henderson, 68 
 N. 0- R., 348. 
 
 38. The term ''Criminal action" and " Indictment" are 
 used in the Constitution and in the Code of Civil Procedure 
 as synonymous: Therefore, it would be equally regular to 
 entitle a case upon the records of the court either as " The 
 People v. AB — Criminal action," or "State v. A B. — In- 
 dictment." State v. Allen (58 N. C. R., 378. 
 
 39. It is no ground for the arrest of judgment that the 
 indictment charged the offence to have been committed in 
 the said " county," as it had caption, " Cumberland county," 
 and the defendant was stated to be of that county. It is an 
 informality which is saved by the Rev. Code, chap 35, sec. 
 14. (Bat. Rev, c. 33, s GO.) State v Evans, G ( J N. C. R., 40. 
 
 40. The mis-description (if any) in describing the court in 
 which the false oath is alleged to have been taken as "before 
 Joseph Z Piatt, a Justice of the Peace in, and for said 
 county,"" instead of as "a Court of a Justice of the Peace 
 for township A, of Chowan county," is not a substantial va- 
 riance from the true description, and is cured by Act of 1811, 
 Rev. Code, sec 14, chap. 35. It would also be cured by sec- 
 tions 15 and 10, of chapter 35 of Rev. Code. State v. Davis, 
 69 N. C. R., 405. 
 
 41. An indictment under the Act of 1868-'69, chap. 253, 
 (Battle's Revisal, chap. 32, sec 05,) for the killing live stock 
 under certain circumstances, which charges that the defen- 
 dant on &o, at&c, "A certain mule of the value of one 
 hundred dollars, the property of one J. S. E., the said mule 
 being then and there within an inclosure not surrounded ly 
 a lawful fence, unlawfully and willfully did abuse, injure and 
 kill contrary," &c, is sufficient, though it would have been 
 more satisfactory if it had staled whose the inclosure was, 
 whether the defendant's or some other person. State v. Allen, 
 00 N. C R., 23. 
 
 -12 An indictment, in which it is charged that the defen- 
 dant "did profanely curse and swear, and take the name of 
 
252 INDICTMENT— IV.— V— VI. 
 
 Almighty God in vain," &c, " to the common nuisance,'' 
 «&c, charges no offence, and cannot be sustained. Slate v. 
 Powell, 00 N. 0. R., 07. 
 
 43. In an indictment under the 95th section of chapter 
 32 of Bat. Eev., the charge, that the defendants "unlawfully 
 and willfully did kill, injure and abuse one cow, one heifer, 
 the property," &c, " which said cow and heifer were then 
 and there in an inclosure, not then and there surrounded by 
 a sufficient fence," is sufficient. State v. Painter, 70 N. 0. 
 R., 70. 
 
 44. An indictment under the act of 1800, chap. 00, in 
 which it is charged, that the defendant did unlawfully enter 
 upon the premises of the prosecutor, he, the said defendant,, 
 having been forbidden to enter on said premises; and not hav- 
 ing a license to enter, &c, is sufficient State v. Whitehurst, 
 70 N. O. U. 85 
 
 45. In an indictment for larceny, the ownership of the 
 properly stolen is charged, " 100 lbs of cottou, the property 
 ofO, 100 lbs of cotton, the property of G :" held, that the 
 objection to the indictment on account of duplicity and obscu- 
 rity, would have been fatal on a motion to quash, but that 
 the defect is cured by a verdict, as provided in chap. 35, sees. 
 15 aud 20, iiev. Code. State v. Simons, 70 N. . li. 330. 
 
 See (Assault and* Buttery, 0, 19.) (Forcible Trespass, 7.) 
 (Forcible Entry and Detainer, 7.) (Forgery, 4, 5, 7.) (Lar- 
 ceny, 4, 11, 12, 17, 18, 30.) Perjury, 4,^5, (>.) (Rape, 4, 5.) 
 
 V. PLEA. OF FORMER ACQUITTAL OR CONVICTION. 
 
 1. Under the plea of former conviction, if the acts alleged 
 in the second indictment are embraced in the first, and were 
 relied upon to sustain that indictment and increase the pun- 
 ishment of the defendant, he is entitled to an acquittal. 
 State v. Lindsey, Phil. L. R. 408. 
 
 2. Therefore, where one was indicted for assault and bat- 
 tery, and it was proved that, in a former indictment against 
 him and others for riot, the assault charged had been given 
 in evidence with other acts of like character, his conviction 
 of the riot is a bar to the second prosecution. Ibid. 
 
 VI. REMOVAL OF, INTO THE U. S. COURTS. 
 
 1. When it appears from the affidavit of a person of color, 
 charged with a capital offence, that he cannot have full and 
 equal benefit of all laws and proceedings for the security ot 
 
INDICTMENT— VI.— VTL 253 
 
 person and property as is enjoyed by white citizens, and that 
 his rights cannot be enforced in the State Courts : Held, 
 That "under the act of Congress of 9th April, 1866, the State 
 Courts will proceed no further in the prosecution until certi- 
 fied of the action of the Circuit Court of the United States 
 under the act ot Congress, March 3, 1863. State x.Dunlap, 
 65 N. C. E. 491. 
 
 2. It is erroneous in such a case to order the removal of 
 the indictments to the Circuit Court of the United States ; 
 but to suspend proceedings in the cause till certified to the 
 court under the aforesaid acts of Congress. Ibid. 
 
 VII. OF THE TRIAL, VERDICT AND JUDGMENT. 
 
 1. If pending an appeal in a criminal case, the statute 
 authorizing the indictment is repealed, judgment will be 
 arrested. ^State v. Nutt, Phil L. R. 20. 
 
 2. It is error in a Judge to give any charge to the jury in 
 the absence of the prisoner. State v. Blackwelder, Phil. L. 
 R. 38. 
 
 3. If there be a general verdict of guilty, upon an indict- 
 ment having two counts, judgment cannot be arrested because 
 one of those counts is bad. State v. Beatty, Phil. L. R- 52. 
 
 4. If one of two repugnant counts is bad, a general ver- 
 dict of guilty may well be supported by the other. Ibid. 
 
 5. The proper time for an objection to the grand jury 
 that found an indictment, is before the trial. State v. Sears, 
 Phil. L. R. 140. 
 
 0. Whether the doctrine of reasonable doubt applies to 
 misdemeanors or not, a charge that to convict, the jury must 
 be ''fully satisfied," of the defendant's guilt, is all that he has 
 the right to ask. Ibid. 
 
 7. Reasonable doubt is not a necessary formula, and it can 
 only be required in any case that the Judge impress upon 
 the jury the principle that the innocent must uot be pun- 
 ished. Ibid. 
 
 8. Upon a trial for malicious mischief it is sufficient to 
 charge that they must be " satisfied" as to the ownership of 
 the property injured. Ibid. 
 
 9. Where a defendant was indicted in several counts and 
 found guilty upon two, held, to be no ground for arrest of 
 judgment, that one of the two were defective, the judgment 
 being such as the court had a right to render on the other. 
 State v. Tisdale, Phil. L. R. 220. 
 
 10. Where a Judge charged the jury that they must ren- 
 
254 INDICTMENT— VII. 
 
 der afair and "honest verdict ; if they had a reasonable doubt 
 as to the guilt of the prisoners it was their duty under the obli- 
 gations which they had taken, to render a verdict accordingly ; 
 but if they were satisfied beyond reasonable doubt upon the 
 law and the evidence that the prisoners were guilty, and from 
 any false sympathy render a verdict of not guilty, that the 
 law said they were perjured men :" held, that it was not error. 
 State v. Fulkerson, Phil. L. R. 233. 
 
 11. It is not error for the Judge, after he has once charged 
 the jury and they have retired and failed to agree, in pro- 
 ceeding to give further instructions, to refuse to permit more 
 to be said in behalf of the prisoners or the State ; though it 
 may be restrictive of our indulgent practice in capital trials. 
 IMd. 
 
 12. Although no bill of exceptions be filed, and it do not 
 appear that there was any motion in arrest of judgment, the 
 Supreme Court will examine the record to see whether there 
 is any en or. State v. Wilson, Phil. L. R. 237. 
 
 13. Although it be error to charge that the doctrine of 
 " reasonable doubt" does not apply in trials for misdemean- 
 ors, yet where the instructions taken altogether gave the 
 prisoner the benefit of that doctrine, and informed the jury 
 that they must be " fully satisfied before- convicting," held^ 
 that there was no error. State v. Knox, Phil. L. R. 312. 
 
 14. After verdict the defendant cannot object that evi- 
 dence was improperly admitted, it he did not except when it 
 was introduced. State v. Smith, Phil. L. R. 302. 
 
 15. There is no ground for an arrest of judgment unless 
 a fatal detect appears in the record j) roper, as distinguished 
 from the .statement of the case by the Judge. State v. Potter, 
 Phil. L R. 338 
 
 16. The Statute of Ann, allowing a defendant to enter 
 two or more pleas, does not apply to indictments Ibid. 
 
 17. Evidence making a mere ground for conjecture that a 
 homicide was accidental, is to be regarded as no evidence. 
 State v Haywood, Phil. L. R. 31 G. 
 
 18. Upon trials for murder, a killing by the prisoner hav- 
 ing been proved, the burden of proof shifts to the prisoner. 
 IMd. 
 
 19. When it was shown that the prisoner killed the de- 
 ceased by shooting, and made his escape, and afterwards said 
 he had killed deceased but did not know that the gun was 
 loaded, the fact that the gun was out of order and would not 
 stand at half-cock, did not make it error for the Judge to re- 
 fuse to charge that " if the prisoner was handling the gun 
 
INDICTMENT— VII. 255 
 
 in a careless and negligent manner and it accidently went off, 
 the killing was mitigated to manslaughter,* there being no 
 evidence of negligent handling or accident. Ibid. 
 
 20. A charge upon the subject of insanity in criminal 
 cases commended. I bid. 
 
 21. It is no ground tor an arrest of judgment, that the 
 name of the State is omitted in the body of the indictment ; 
 or, that the memorandum of the pleas of tiro defendants is 
 prefaced by the word "saith." Slate v. JDula, Phil. L. R. 
 437. 
 
 22. A jury charged with a ease of alleged murder, re- 
 tired to consider of their verdict upon Saturday of the first 
 week of the term, at 8 o'clock, P. M., and upon Monday of 
 the 2d week, at 5£ o'clock, P. M., returned iuto Court, being 
 unable to agree; thereupon, the Judge ordered a juror to be 
 withdrawn : hdd, that such order was erroneous, and in con- 
 sequence thereof, the prisoner could not be tried again, and 
 had a right to be discharged from custody. State v. Alman, 
 6 IN. C. R. 364. 
 
 23. Iu a case where an indictment for murder was based 
 upon circumstantial evidence tending to show that the homi- 
 cide had been accompanied by robbery, and the prisoner in 
 whose possession soon afterwards the things taken were found, 
 denied having inflicted the fatal blow, held that the presiding 
 Judge was correct in charging that the prisoner was guilty 
 of murder, or of nothing. State v. Parker, Phil. L. R. 473. 
 
 24. Where a Judge otherwise administers the law cor- 
 rectly, held, not to be error for him to decline using the very 
 words in which an important legal proposition has been ac- 
 curately laid down in another case ; and that sometimes cir- 
 cumstances attending a trial may render it improper for a 
 judge to define a legal principle iu the very words that were 
 strictly correct in another case. Ibid. 
 
 25. There is no "formula" to which judges may resort 
 for guaging the degree to which a jury must be convinced in 
 order to justify a" verdict of guilty, and attempts to create 
 such have resulted in no good. Ibid. 
 
 2(1. Applications fora new trial because a verdict is against 
 the weight of the evidence, arc addressed to the discretion of 
 the judge below, and therefore cannot be reviewed by the 
 Supreme Court. State v. Kear~<y, Phil. L. R. 481. 
 
 27. It is no ground for a motion to quash an indictment, 
 or to arrest judgment, that the defendant was convicted up- 
 on an indictment round by a grand jury in 1803, while the 
 lightful State government was suspended. Ibid. 
 
256 INDICTMENT— VII. 
 
 28. One who was ordered into custody to secure the fine 
 and costs in a criminal case having escaped, held, that it was 
 competent for the Solicitor to have him again arrested that 
 he might he compelled to undergo the sentence ; and that 
 the fact that the escape in question was voluntary did uot 
 alter the rule. State v. McClure, Phil L. E. 491. * 
 
 29. After the testimony for the State is closed and before 
 witnesses tor the prisoner are introduced, his counsel has no 
 right, in stating the grounds of defence, to comment at length 
 upon the evidence tor the State. Ibid. 
 
 30. It appearing in this court, upon appeal by a prisoner, 
 that a verdict of guilty had been entered below, the court can 
 not arrest the judgment because the judge had not the power 
 to impose the punishment ordered by him, but, as the appeal 
 vacated that judgment, must send the case down for such 
 judgment as the law allows. State v. Cook, Phil. L. E. 535. 
 
 31. A general verdict of guilty, upon an indictment con- 
 taining several counts, will be supported, although these are 
 inconsistent as regards their statement of the manner of kill- 
 ing. State v. Baker, 63 N. C. E. 276. 
 
 32. A charge that — "if the acts deposed by the 0. P. 
 were the cause of the death, it was murder," held, to be no 
 trespass upon the province of the jury. Ibid. 
 
 33. During a capital trial, one ot the jury (then out of 
 court in charge of an officer for the purpose of eating dinner,) 
 was allowed to pass by or near a number of persons, and to 
 eat his dinner at a short distance from the other jurors, 
 although he conversed with no one ; held, to give no just 
 cause for complaint to the prisoners. Ibid. 
 
 34. Where, upon trials for capital offences, questions arise 
 as to the propriety of discharging the jury without a verdict: 
 whether a necessity exists for such discharge is a matter to 
 be decided by the Judge presiding at such trial ; and it is his 
 duty to ascertain the facts which constitute such necessity. 
 State v. Prince, 63 N. 0. E. 529. 
 
 35. The exercise of such discretion in any particular case 
 of discharge may be appealed from, and in such case the 
 finding of the facts in the court below is inclusive, leaving 
 law as deduced from such facts to be reviewed. Ibid. 
 
 36. In a case where three persons were put upon trial for 
 murder, the prisoners proposed that they should be exam- 
 ined as witnesses for each other. The State objected, but 
 the court allowed the motion ; thereupon the Solicitor ap- 
 pealed, and the Court, to allow him such appeal, iu spite of 
 the objection of the prisoners, withdrew a juror, and made a 
 
INDICTMENT— VII. 257 
 
 mistrial : held, to have been au erroneous exercise of discre- 
 tion, and that thereupon the prisoners were entitled to a 
 discharge. Ibid. 
 
 37. The tacts occurring at the trial, alleged as ground for 
 a new trial, must appear affirmatively upon the record trans- 
 mitted from the court below. State v. Buttock, 03 N. 0. E. 
 570. 
 
 38. It is a matter of discretion with the presiding judge 
 to discharge a jury upon a trial for crime, before they have 
 rendered a verdict ; and semble, that in all cases an appeal 
 may be had from the decision ot the Judge upon the law in- 
 volved in such discharge. Ibid. 
 
 30. Qucere, whether the common law rule of carrying a 
 jury around the circuit in case ot their disagreement, do uot 
 still exist in this State. Ibid. 
 
 40. On a trial for felony no order that may prejudice the 
 prisoner can be made in his absence from the bar. State 
 v. Alman, 04 N. C. E. 304. 
 
 41. A prisoner has no right to except on account of the 
 Court's having taken a recess during the trial from one even- 
 ing to the next morning ; nor, because the Court declined to 
 provide that during such recess the witnesses for the State 
 should be kept separate. State v. Manuel, 04 N". C. E. 001. 
 
 4'2. In an indictmeut for crime, the defendant, ordinarily, 
 is entitled to have the whole case left to the jury upou the 
 evidence on both sides, and if, upon a consideration of all such 
 evidence, every reasonable doubt be not removed, the jury 
 should acquit. State v. Josei/, 04 N. C. B. 56. 
 
 43. Therefore, iu a case of larceny, an instruction to tire 
 jury "that the burden of proof to show the guilt of the 
 prisoner is upon the State ; but that when the State has 
 made out a prima facie case, and the prisoner attempts to 
 set up an alibi, the burden ot prool is shitted, and if the 
 defence fail to establish the alibi to the satisfaction of the 
 jury, they must find the prisoner guilty," is erroneous. Ibid. 
 
 44. The rule is otherwise where the question is as to 
 malice in cases of homicide ; and also, generally, where the 
 defendant relies upou some distinct ground of defence not 
 necessarily connected with the transaction on which the in- 
 dictment is founded, ex. (jr. insanity ; and it may be so as to 
 matters of defence peculiarly within the knowledge of the 
 defendant. Ibid. 
 
 4.~>. A special verdict in an indictment for malicious mis- 
 chief whi'h omits to find that the act was done with malice 
 17 
 
258 INDICTMENT— VII. 
 
 towards the owner of the property injured, is equivalent to 
 an acquittal. State v. Newby,*64: N. C. E. 23. 
 
 46. Upon the rendition of a verdict of not guilty against 
 a defendant in an indictment, he is entitled to his discharge, 
 nothing more appearing against him. State v. Freeman, 66 
 N. 0. E 647. 
 
 47. A Judge has no right to set aside a verdict of not guilty, 
 nor to grant a new trial, on the motion of the State. Ibid. 
 
 48. In a trial for a capital felony, the Judge, for sufficient 
 cause, may discharge a jury and hold the prisoner for anoth- 
 er trial ; in which case, it is his duty to find the facts and set 
 them out on the record, that his conclusions upon matters of 
 law, arising unon the facts, may be reviewed by this Court. 
 State v. Jefferson, 66 N. C. E 309. 
 
 49. It is the duty of a Judge to be personally present in 
 Court, and to find, judicially, the facts upon which his con 
 elusions are based. Judicial power cannot be delegated. 
 Where, therefore, a Judge is absent from the Court, and tele- 
 graphs to the Clerk to discharge a jury, and the Clerk so 
 does : held, to be error and the prisoner in such case is en- 
 titled to his discharge. Ibid. 
 
 50. Where the record shows that, after the jury returned 
 a verdict of guilty in a capital trial, the prisoner moved for a 
 new trial, &c, it was not absolutely essential that the Judge, 
 before pronouncing sentence, should ask the prisoner, in the 
 usual formula, whether he had anything to say why sentence 
 of death should not be pronounced against him. State v. 
 Thomas Johnston, 67 N. 0. E 55. 
 
 51. Where judgment cannot be pronounced against a pris- 
 oner, ou account of the ambiguity of an indictment, in omit- 
 ting to aver under what statute it was framed, there being 
 two in reference to the same subject, such omission cannot 
 be supplied by a plea to the further prosecution of the case, 
 tiled by the prisoner's counsel, admitting the time when the 
 offence was committed. State v. Wise, 67 N. C. E. 281. 
 
 52. No such effect can be allowed to the action of the 
 counsel. A record cannot be aided by matter in pais. Suf- 
 ficient matter must appear on the record to enable the Court 
 to proceed to judgment. Ibid. 
 
 53. Wheu a verdict, in a case subjecting a party to pun- 
 ishment in the penitentiary, is rendered out of Court, to a 
 Judge at his chambers, in the absence of the prisoner and 
 his counsel, and is entered on the record on the next day, in 
 the absence of the jury and the prisoner : held, that such 
 verdict cannot be sustained. State v. Bray, 67 N. C. E. 283. 
 
INDICTMENT— VII. 259 
 
 54. In cases of necessity, a mistrial may be ordered in 
 capital cases. State v. Wiseman, 08 N. 0. R. 203. 
 
 5~j. The necessity justifying such mistrial may be regard- 
 ed as a technical term, including distinct classes of necessity; 
 for instance, the one physical and absolute, as where a juror 
 from sudden illness is disqualified to sit, or the prisoner 
 becomes insane, and so on; another may be termed a case of 
 legal necessity or the necessity of doing justice, as in case of 
 tampering with jurors, and snch like — snch cases of necessity 
 beinii the subject of review in this court after a final decision 
 in the court below. Ibid. 
 
 50. Whenever the court below finds that the jury has 
 been tampered with, a mistrial should be ordered, it being 
 oue of the highest duties of the court to guard the adminis- 
 tration of justice against such fraudulent practices. Ibid. 
 
 57. The counsel for the State has a right to exhibit and 
 comment upon a stick which had been before identified as 
 one had by one of the defendants, and with which it was 
 alleged the prosecutor had been struck. State v. Mordecai, 
 08 N. O. R 207. 
 
 58. Where, on a trial of a white man for the murder of a 
 negro, the Solicitor for the State in the closing argument 
 stated to the jury that he had been informed that there was 
 a general feeling and purpose among the white citizens of 
 the county, which had been pretty generally expressed during 
 the trial, that no white man was to be convicted for killing a 
 negro until a certain negro should be convicted for killing a 
 white man in the county, aud that he referred to the rumor 
 not to create a prejudice in the minds of the jury against the 
 prisoner, but to remove all prejudice from their minds op- 
 posed to a fair, manly aud independent verdict according to 
 their oaths, and to the law and testimony in the case : it was 
 held, that the prisoner had no ground for complaint agaiust 
 the remarks of the Solicitor as being improper for the occa- 
 sion. State v. Baker, (59 N. 0. R. 147. 
 
 59. After declaring himself ready for trial, a prisoner can- 
 not object for want of time in which to produce a paper 
 alleged to be in his possession, having had two days notice to 
 produce it. State v. Davis, 09 N. 0. R. 313. 
 
 60. It is no ground for arresting a judgment because the 
 jury did not find on which count in an indictment for arson, 
 the defendant was guilty ; the first count being the only one 
 charging the defendant, the second charging others as aiders 
 aud abetters. State v. Jones, 09 N. 0. R. 304. 
 
 01. On an indictment charging the defendant in the firs 
 
2G0 INDICTMENT— VII —INFANCY. 
 
 count with stealing, and in the second with receiving stolen 
 goods, he may be found guilty generally, because the offences 
 are v of the same grade, and the punishment is the same, and 
 the verdict may be sustained, though on atrial at the preceding 
 term, the jury found the defendant guilty of receiving stolen 
 goods, which verdict the Judge set aside and ordered a new 
 trial. State v. Speight, 01) S. 0. R. 72. 
 
 62. In a criminal trial against two or more defendants, the 
 Judge has the right in his discretion to separate the evidence 
 hearing upon the case of each, and to instruct the jury, as to 
 what is competent against one, and incompetent against 
 another. State v. Collins, 70 N. 0. R. 241. 
 
 03. When several persons are jointly indicted, they can- 
 not claim separate trials as a matter of right. Such separa- 
 tion is a matter of discretion with the Court. Ibid. 
 
 04. In trials for capital felonies, the presiding Judge has 
 the right to regulate by reasonable rules and limitations, the 
 arguments in the cause : hence, it is no good ground for a 
 new trial, that the counsel of the prisoner was limited by the 
 court, in his remarks, to one hour and a half. Ibid. 
 
 05. In an indictment containing two counts, one for lar- 
 ceny and the other for receiving stolen goods, the jury may 
 bring in a general verdict of guilty, the grade of punishment 
 being the same for each offence. State v. Baker, 70 N. C. 
 E. 530. 
 
 00. It is not necessary that a prisoner should be ar- 
 raigned and plead at a preceding regular term to the Special 
 Term at which he is tried. State v. Ketclxey, 70 N. C. E. 021. 
 
 INFANCY. 
 
 1. When an infant purchases a stock of goods for the 
 purpose of trade and merchandise, and to secure the pur- 
 chase-money executed a note and mortgage of the stock of 
 goods, such contract is voidable and may be disaffirmed by 
 such infant by any act which manifests such a purpose. 
 Skinner v. Maxwell, 00 N. C. E- 45. 
 
 2. The effect of such disaffirmance is to restore the prop- 
 erty which remains, to the person from whom it was ob- 
 tained. Ibid. 
 
 3. Necessaries for which an infant may become liable, not 
 only includes such articles as are absolutely necessary to sup- 
 port life, but also those that are suitable to the state, station 
 
INFANCY.— INJUNCTIONS. 2G1 
 
 and degree of life of the person, to whom they are furnished. 
 Jordan v. CoffieU, 70 N. 0. E. 110. 
 
 4. The plaintiff, a merchant, furnished the feme defen- 
 dant during her infancy and just before her marriage, with 
 certain articles, among which was her bridal outfit, and a 
 chamber set: held, that it was not error in the Judge below 
 to charge the jury, if they believed that the articles fur- 
 nished, were actually necessary, and of a fair and reasonable 
 price, the plaintiff was entitled to recover. Ibid. 
 
 5. The obligation of the mother is not the same as that 
 of the tather to support infant children ; and the weight of 
 authority both in this country and in England, is against the 
 liability of the mother to this burden, except under peculiar 
 circumstances. Ibid. 
 
 INJUNCTIONS. 
 
 I. When to be granted, and the prac- 
 tice in injunctions. 
 
 II. Of the injunction bond. 
 
 I. WHEN TO BE GRANTED, AND THE PRACTICE IN INJUNCTIONS. 
 
 1. Where there is reason to apprehend that the subject 
 of controversy in equity will be destroyed or removed, or 
 otherwise disposed of by the defendant, pending the suit, so 
 that the complainant may lose the fruit of his recovery or 
 be hindered and delayed in obtaining it, the court, in aid of 
 the primary equity, will secure the fund by the writ of se- 
 questration or the writs of sequestration and injunction, 
 until the main equity is adjudicated at the hearing of the 
 cause. Parker v. Grammer, Phil. Eq. 11. 28. 
 
 2. The rule, that in injunction causes all the defendants 
 must answer before a dissolution will be ordered, will not be 
 enforced where the party not answering is not charged with 
 any particular knowledge of the material facts alleged; and 
 more particularly where no steps have been taken to bring 
 such party into court. Ijams v. Ijams, Phil. Eq E. 39. 
 
 3. Where a bill avers that the defendant threatens to 
 sell tin- article in dispute and send it beyond the limits of 
 the .State, and the answer admits the averment, with the 
 explanation that the defendant does not intend to deprive 
 complainants of such rights thereto or its proceeds as the law 
 shall assign them : held, to he a. lit ease tor continuing an in- 
 junction. Reynolds v. McKenzie, Phil. Eq. R. 50. 
 
262 INJUNCTIONS— I. 
 
 4. Courts of Equity grant special injunctions against 
 trespass with reluctance ; and only in cases where but for 
 such interference the injury would be irreparable, or where 
 no redress can be had at law. Thompson v. McNair, Phil. 
 Eq. E. 121. 
 
 5. Therefore where it was not shown that the defendant 
 was insolvent, an injunction against his cutting pine timber, 
 splitting lightwood and making tar was dissolved. Ibid. 
 
 6. An allegation in an answer that the trespasses com- 
 plained of were committed by the defendant in connection 
 avitli two other persons who were solvent, will be considered 
 by the court as important upon the motion to dissolve. Ibid. 
 
 7. An injunction will not be continued merely because 
 one of the defendants has not answered, if the case show 
 that the answer could not be material to the point upon 
 which the injunction is claimed. Ibid. 
 
 8. Upon motion to dissolve a special injunction on the 
 coming in of the answers, held, that as there was upon the 
 whole, probable cause in regard to the primary equity, and 
 also ground for a reasonable apprehension as to the security 
 of the fund, the injunction should be continued to the hear- 
 ing. Blossom v. VanAmringe, Phil. Eq. R. 133. 
 
 9. Upon such motion the answer of one of several defen- 
 dants may be used as an affidavit in support of the bill. Ibid. 
 
 10. Where it was alleged in a bill that the complainant, who 
 was old and ignorant, bad been induced by fear of prosecu- 
 tion, excited by the defendants, (one of them a goverment 
 official and a supposed friend,) to transfer bonds and notes of 
 a large amount to them at a price less than half their value, 
 secured by a bond that is still unpaid though long overdue, 
 and that the defendants are insolvent; which allegations were 
 only partially denied by the answers ; held, upon a motion 
 to disolve an injunction against the collection or transfer of 
 the notes, to be proper to look into the whole case, and it 
 appealing that complainant had probable grounds for relief, to 
 continue the injunction to the hearing. Key v. Dobson, Phil. 
 Eq. E. 170. 
 
 11. One who files a bill to obtain an injunction against a 
 suit at law must in general submit to a judgment in such 
 suit ; the only exception being where the complainant prays 
 for a discovery to aid him in his defence at law. Hunt v. 
 Sneed, Phil. Eq. R. 351. 
 
 12. A complainant even where permitted to sue in forma 
 pauperis, is required to give bond upon obtaining an injunc- 
 tion. But if an injunction be issued and objection is not 
 
INJUNCTIONS— I. 203 
 
 made for several yiars (in this case six,) the defendant will be 
 presumed to have waived the irregularity. House v. Green, 
 Phil. Eq. R. 250. 
 
 13. Upon affidavit that the complainant, in a bill praying 
 au injunction against a writ of possession in Ejectment, is 
 committing waste, the court at the instance of the defendant, 
 will make an order in the cause staying the waste. Ibid. 
 
 14. Where land that has been levied upon, is being 
 wasted, and the officer is prohibited from making sale by a 
 Military order, held, that the plaintiff in the execution is enti- 
 tled to an injunction against such waste. Webb v. Boyle, 63 
 N. 0. R. 271. 
 
 15. The fact that pending the proceedings for injunction, 
 the Military order ceased to have effect, and the Stay law 
 was pronounced void, does not affect that jurisdiction for an 
 injunction, which existed at the commencement of such pro- 
 ceedings. Ibid. 
 
 . 16. A motion for an injunction made after the coming in 
 of the answer, must be founded upon the equity therein con- 
 fessed : therefore, when the answer to a bill for the specific 
 performance of a contract to sell land, alleged that the defen- 
 dant was a trustee of the laud in question, and as such sold 
 it for Confederate money, at auction, for cash, on the 22d of 
 January, 1803 ; that the complainant became the purchaser, 
 but did not comply with the terms, and did not offer the 
 money until ten or twelve months afterwards, when she ten- 
 dered it and asked for a deed, which was refused : held, that 
 an injunction to restrain the defendant from prosecuting an 
 action of ejectment for such land, ought not to have been 
 allowed. Whitaker v. Bond, 63 N. 0. R. 290 
 
 17. Injunctions pending at the adoption of the Code of 
 Civil Procedure, are to be proceeded in and tried under the 
 existing laws and rules applicable thereto; therefore, the 
 defendant in such a case has a right to have amotion to dis- 
 solve upon bill and answer considered before a replication 
 can he put in. Waldrop v. Green, 63 N. C. R. 344. 
 
 IS. An injunction against a recovery at law, granted upon 
 a bill which stated ;is grounds for the application, that the 
 title to a horse which the plaintiff had obtained by ex- 
 change from the defendant, had, failed, and that the defend- 
 ant was insolvent and was seeking to recover damages from 
 him for converting the horse which he had conveyed by ex- 
 change to the defendant, was granted improvideutly. Ibid. 
 
 \\). A purchaser at a sale under a trust to pay debts, who 
 is also a creditor secured in such trust, cannot enjoin the 
 
264 INJUNCTIONS— I. 
 
 trustee from collecting the purchase money merely because 
 he is a creditor to a much larger amount than he is debtor. 
 Such an interference might derange or defeat the purposes 
 of the trust. Capehartv. JEtheridge, 03 N. 0. E. 353. 
 
 20. Under the Code of Civil Procedure, a judge may, at 
 the instance of the defendant, modify an injunction previ- 
 ously granted, without giving notice to the plaintiff; but in 
 such case he must found his action merely upon the com- 
 plaint ; and cannot consider the answer, or affidavits ou the 
 part of the defendant. Sledge v. Blum, 03 N. C. B. 274. 
 
 21. SemJble, that an injunction granted without requiring 
 a bond, is only irregular and not void. Ibid. 
 
 22. Inasmuch as the Code requires injunctions to be 
 issued at the time of commencing the action or at any time 
 afterwards before final judment ; and as by that Code all 
 civil actions must be commenced by summons : held, that an 
 injunction ordered by the Judge upon reading the complaint, 
 coupled with an order at the same time to issue a copy of 
 the complaint, and a summons to the defendant, was irregu- 
 lar and premature, and therefore should be dissolved. Pat- 
 rick v. Joyner, 03 N. C. R. 573. 
 
 23. That a provisional injunction is granted before the is- 
 suing of a summons in the case, \s a mere irregularity, which 
 if waived by the defendant, tue Court will not notice sua 
 sponte. Heilig v. Stokes, 03 N. O. It. 012. 
 
 24. The common injunction (as distinguished from the 
 special) is directed against a party to some suit that involves 
 an equity which it is desired to protect; and, therefore, does, 
 not include a provisional injunction (as here) in favor of a cred- 
 itor, against his debtor and a third person, who are alleged 
 to be conspiring to defraud him. Ibid. 
 
 25. Therefore, in such a case the injunction will be con- 
 tinued, if it appear reasonably necessary for the protection of 
 the plaintiff's rights uutil the trial. Ibid. 
 
 20. Where a complaint sought for a rescission of a sale of 
 land, and an injunction, &c, upon the ground that the defen- 
 dants had agreed to pay cash upon receiving the deed, and 
 to that end gave a sight draft, and that it had not been paid,, 
 and the drawers were insolvent; and the answer admitted 
 those allegations, and sought to avoid them by other matter: 
 held, that as there was an equity confessed, the injunction 
 should be continued. Carter v. Hole, 04 N. O. II. 34S. 
 
 27. In such case if some of the defendants file a plea that 
 they purchased for valuable consideration and without noticv 
 from the parties who bought from the plaintiff; upon the mo 
 
INJUNCTIONS— I. 265 
 
 tion to vacate the injunction, these allegations are also to be 
 treated as matter of avoidance; aliter, if the defence had been 
 made by an answer, full and going into particulars. Ibid. 
 
 28. (The reasons for this distinction stated and discus- 
 sed.) Ibid 
 
 29. That the party foiled to establish a defence in the pre- 
 vious action, through the unexpected absence of the nominal 
 plaintiff in the case, whom he had not summoned as a wit- 
 ness, is no ground for an injunction against the judgment in 
 such action. Wilder v. Lee, 04 N. 0. R. 50. 
 
 30. An order to stay proceedings, made, without notice, 
 by a Judge out of court, for a longer time than twenty days, 
 is irregular (0. 0. P. sec. 345,) and a demurrer to the com- 
 plaint in the action in which such order was made, may be 
 treated as a motion to vacate Ibid. 
 
 31. An injunction granted before the issuing of a sum- 
 mons in the action, is premature and irregular. McArthur 
 v. McEuchin, 04 N. 0. R. 72. 
 
 32. According to the former practice in equity, a plaintiff 
 could not move for an injunction (even where prayed for in 
 the bill) after answer filed, except in term time, and upon the 
 equity confessed in the answer. Pendleton v. Dalton, 04 N. 
 
 C. R. 329. 
 
 33. This was so even where the answer was excepted to 
 as being insufficient. In such case the plaintiff could bring 
 on for healing his motion for an injunction, and his excep- 
 tions, at the same time. Ibid. 
 
 34. Qucere, Whether under the former system, a Judge 
 had the power to giant in vacation an interlocutory injunc- 
 tion. Ibid. 
 
 35. Observations upon Com mon and Special mj unctions, 
 in connexion with the C. 0. P. Jarmon v. Saunders, 04 N. 
 (J. R. 3(57. 
 
 30. An injunction, obtained by a plaintiff at law in order 
 to preserve property in litigation until the determination of 
 the suit at law, having been dissolved: held, that no refer- 
 ence, to ascertain damages sustained by the defendant because 
 of such injunction, or other proceedings upon the injunction 
 bond, could be had until after the determination of the suit 
 at law. Thompson v. McNair, 04 N. R, 44S. 
 
 ;;7. Where the defendant, upon amotion to dissolve an 
 injunction, uses his answer as an affidavit, the plaintiff has a 
 right to oiler affidavits additional to his complaint. Howerton 
 v. Sprague, 64 X. 0. R -151. 
 
 38. The defendant, as assignee in bankruptcy of the Bank 
 
266 INJUNCTIONS— I. 
 
 of North Carolina, had obtained judgment against the plain- 
 tiffs, upon a note made by them to the bank ; an execution 
 coming to the hands of the sheriff, the plaintiffs, " being un- 
 able to obtain bills upon said bank," tendered to the sheriff 
 one-half of the amount of the judgment, in currency, in satis- 
 faction of the whole, which being refused, they obtained an 
 injunction: held, that it had been granted improvidently. 
 Smith v. Dewey, 64 N. C. E. 464. 
 
 39. Where a complaint charges that money used iu a cer- 
 tain transaction, was that of A, and not (as A and B claimed 
 it to be) that of B ; answers by A and B, that the money ad- 
 vanced by the latter was " money under his control, and was 
 not the money of A, v were held to be evasive and unsatisfac- 
 tory ; iu not stating whether or not such money ivas placed 
 under the control of B through any agency of A. Iiuss v. 
 Gulick, 64 N. C. R. 301. 
 
 40. The transaction being, the contribution of their re- 
 spective proportions of a debt by two co-sureties, of whom A 
 was one and the plaintiff the other ; held, that an admission 
 by A and B of their purpose to compel the plaintiff to pay 
 the whole debt, was an equity confessed, and their setting up, 
 as their justification therefor, an agreement by said co-sure- 
 ties, made after their engagement as sureties, whereby the 
 plaintiff" was to pay the whole, was matter in avoidance of 
 such equity, and so, not to be noticed at this particular stage 
 of the proceedings, viz: amotion to vacate an injunction. 
 1 bid. 
 
 41. It is improper to make a Sheriff party to an order of 
 injunction against process iu his hands. Jarman v. Saun- 
 ders, 64 N. C. E 367. 
 
 42. Where an injunction is issued under an order that 
 the plaintiff shall give an undertaking with sufficient sureties 
 in a certain sum prescribed in the C. 0. P., sec. 192, it 
 seems that a deposit in money of the sum named, will be suf- 
 ficient, but whether so or not, the giving by the plaintiff of 
 the required undertaking before the hearing of a motion to 
 vacate the injunction for the want of it, will supply the al- 
 leged defect aud prevent the injunction from being vacated 
 on that account. Richards v. Baurman, 65 N. C. E. 162. 
 
 43. An injunction taken out before issuing a summons is 
 irregular, and will be vacated on motion, llersh v. White- 
 head, 65 N. C E. 516. 
 
 44. It is erroneous, in an action brought to prevent irre- 
 parable injury by a sale of land, to try the question of title 
 on affidavits, and therefore where, from the affidavits on both 
 
INJ UNCTIONS— I. 267 
 
 sides, there is reasonable grouucl to support the averment of 
 the plaintiff, that the vendors (the defendants) are not able 
 to make good title, an order enjoining a mortgagee, under a 
 mortgage to secure the purchase money, will not be vacated, 
 until the question of title has been tried in the usual way. 
 Howsev. Mauney, 6G N. 0. R 218 
 
 45. Where laud is sold by deed and the vendee imme- 
 diately re-conveys by mortgage, to secure the payment of the 
 purchase money, enters into possession and makes valuable 
 improvements, and obtains an injunction to restrain a threat- 
 ened sale under the terms of the mortgage, and the order is 
 continued to the hearing : held, that the defendants might 
 move for a receiver. Ibid. 
 
 40. A railway company having a right, by virtue of its 
 charter, to locate its road-bed ou a certain portion of the land 
 of B, he proposes by letter, that if the company will refrain 
 from such location, it may locate it over another portion of 
 his laud : Provided, it would open, grade and put in order a 
 street on that pait in front of his house eighty-five feet wide. 
 The company accept the proposition, locate their road-bed 
 accordingly, iu December, 1869, bat foil to open the street, 
 &c, as late as September, 1871. The compauy became in- 
 solvent before September, 1871, and executed a mortgage of 
 its property. In September, 1871, B notified the compauy 
 that unless the condition was performed within 15 days, he 
 would repossess himself of the land covered by the road-bed ; 
 held, that the injury threatened is within the technical mean- 
 ing of irreparable damage, and the company is entitled to 
 have the injunction continued to the hearing upon the equity 
 confessed in the answer, but it was erroneous to perpetuate 
 the injunction before a final hearing. \V. & T. R. R. Co. v. 
 Battle, M N. C K. 540. 
 
 47. A bargainee in a quit-claim deed, has no legal claim 
 for damages if the title proves defective, nor to enjoin an 
 execution issued upon a judgment based upon the purchase- 
 nioney. McKesson v. Henesee, 66 N. (A It 473. 
 
 ^8. In ascertaining the damages sustained by reason of 
 an injunction under the C. C. P., reference must be had to 
 the condition of the debt enjoined ; it, by reason of the de- 
 lay, the judgment debtor has become insolvent, the whole 
 debl would properly be included as damages sustained by it; 
 if his pecuniary circumstances remained unaltered, no dam- 
 ages are sustained except tic costs and disbursements. Ibid, 
 V.i Whether on a clear case for an injunction, made by 
 the complaint filed in a Probate Court, this Court would 
 
268 INJUNCTIONS— I. 
 
 force a plaintiff by dismissing his action to begin cle novo in? 
 the Probate Court, discussed, but deemed unnecessary to be 
 decided, as the Court does not consider such a case made by 
 the complaint. Sprinkle v. Hutclxeson, 66 N. C E. 450. 
 
 50. A complaint which alleges that an executor had 
 power to sell land under the will and sold for Confederate 
 money, received it and is about to make the purchaser a 
 title, that the executor is insolvent, and is wasting the assets, 
 but does not charge collusion witii the purchaser — does not 
 present a case entitling the plaintiff to injunctive relief. 
 Ibid. 
 
 51. Upon a motion to dissolve an injunction, where a 
 fund has been taken in custody of the law, the rule is, that as 
 the court has hold of it, it will not let it go, if the plaintiff 
 show probable cause from which it may be reasonably inferred 
 that he will be able to make out his case on the final hearing. 
 On the contrary, if it appear from the pleadings and affida- 
 vits that there is not probable cause, the injunction will be 
 dissolved. Cracoff v. Morehead, 67 N. C. R. 422. 
 
 52. In an application for an injunction, an affidavit for it 
 made by a person not a party, that what he has stated in the 
 complaint as of own knowledge is true, &c, is insufficient, 
 because not being a party he has stated nothing. Martin v.. 
 Sloan, 69 N. C R. 128. 
 
 53. A perpetual injunction against issuing au execution on 
 a judgment at law, granted upon motion and affidavits is erro- 
 neous. It is not in accordance with and allowable mode of 
 proceeding under the old system or the new. Whitehurst v. 
 Green, 69 N. C. R 131. 
 
 54. An order restraining the sale of certain premises, to- 
 which the plaintiff claims title, will be continued to the final 
 hearing, and the plaintiff's right protected, if the complaint 
 and affidavits disclose merits on his part. Dockery v. French* 
 69 N. C. R. 308. 
 
 55. Wheu the allegations in the complaint upon which it 
 is sought to set up injunctive relief, are fully met by the 
 answer, the restraining order first issued will be set aside, 
 and an injunction until the hearing refused. Woodjin v. 
 Beach, 70 N. C. R. 455. 
 
 56. When the dissolution of an injunction would be 
 equivalent to a dismissal of the action, if a reasonable doubt 
 exists in the mind of the court, whether the equity of the 
 complaint be sufficienly negatived by the answer, the court 
 will not dissolve the injunction but continue it to the hearing. 
 Lowe v. Commissioners of Davidson, 70 N. C R. 532. 
 
 See (Partnership, 8, 9," 20) 
 
INJUNC— INSANITY.— INSOLV. DEBTORS. 2G9 
 
 II. OF THE INJUNCTION BOND. 
 
 1. Before judgment can be given upon an injunction 
 bond, the party alleging that lie has been damnified by rea- 
 son of said injunction, must establish the quantum of dam- 
 ages sustained. Hi/man v. Devereux, Go N. 0. E. 588. 
 
 2. The quantum of damages recoverable by a party 
 injured under the old system, as compared with the amount 
 under the C. 0. P., discussed. Ibid. 
 
 3. A bond for 85,000 given by a party upon obtaining 
 an injunction, and one for $10,000 given by a receiver upon 
 being appointed such, are palpably insufficient where several 
 hundred thousand dollars are involved in the issue. Martin 
 v. Sloan, 08 N. O. K. 128. See (Process 0.) 
 
 INSANITY. 
 
 If a prisoner at the time he committed homicide was in a 
 state to comprehend his relations to other persons, the nature 
 of the act and its criminal character, or if he was conscious of 
 doiug wroug at the time he committed the act, he is responsi- 
 ble. But if, on the contrary, he was uuder the visitation of 
 God, and could not distinguish between good and. evil, and 
 did not know what he did, be is not guilty of any offence 
 against the law, as guilt arises from the mind and wicked will. 
 State v. llai/ wood, Phil. L. R, 37G. 
 
 See (Evidence — In cases relating to Wills and Testaments, 
 1, 2, 3, 6.) 
 
 INSOLVENT DEBTORS. 
 
 1. The effect of the Act of 18GG-'G7, eh. 03, sec. 1, is to 
 abolish imprisonment for debt in all cases. Bunting v. 
 Wright, Phil. L. R. 295. 
 
 2. Where an issue of fraud on a ca. .s«. in the county 
 court was found against the defendant and he appealed to 
 the Superior Court, and upon being called failed to appear: 
 lield, that the act abolishing imprisonment for debt rendered 
 it proper for the Judge to refuse to give; judgment on the 
 appeal bond, it being in this case in the nature of a bail 
 bond. Ibid. 
 
270 INSOLVENT DEBTORS.— INST. D. &. D. & B. 
 
 3. In such cases, as the law has put an end to the object 
 of litigation, each party must pay his own costs. Ibid. 
 
 4. One who has been committed under an attachment 
 for not paying money as ordered by a court, can be discharged 
 only by payment, or by resorting to the relief given by the 
 insolvent debtor's act. Wood v. Wood, Phil. L. JR. 538. 
 
 5. The act of 1866-67, abolishing imprisonment for debt, 
 does not embrace cases of commitment under attachment for 
 a failure to comply with an order of court. 1 bid 
 
 6. The first proviso to sec. 2, oh. 53, Acts of 1866-'67, 
 (in regard to defendants ''about to remove," &c.,) does not 
 apply to the case of one who, as is stated " is beyond the 
 jurisdiction of the Court ;" nor does it apply to a case where 
 there is no affidavit of the fact. McKay v. Bay, 63 N. C. 
 R. 46. 
 
 7. An insolvent debtor, in a deed made by him, may prefer 
 one creditor to another, if he does it bona fide and with no 
 fraudulent intention. Such a preference being fraudulent 
 and void only in case, proceedings to have the debtor adju- 
 dicated a bankrupt, are commenced within six months after- 
 wards. Hislop v. Hoover, 68 N. 0. R. 141. 
 
 8. The action against the creditor for the jail fees of an 
 insolvent debtor, given by Rev. Code, ch. 50, sec. 5 to the 
 jailor, cannot be maintained by the sheriff as the jailor's 
 principal. Bunting v. Mcllhenny, Phil. L. R. 579. 
 
 INSTITUTION FOR THE DEAF AND 
 DUMB AND THE BLIND. 
 
 1. An appointee of a Board of Directors of an Institution 
 authorized to make by-laws, is bound by all the provisions of 
 the by-laws in force at the time of his appointment. Ellis v. 
 N. C. Institution for the Deaf and Dumb and the Blind, 68 
 N. 0. R. 243. 
 
 2. The appointment of a de facto Board of Directors must 
 have the same force and effect as if made by a legular legal 
 board; and the acceptance of an appointment by one is con- 
 sidered that the acceptance is to be governed by the by-laws 
 then in force. Ibid. 
 
INSURANCE. 271 
 
 INSURANCE. 
 
 1. In a case where a Masonic Insurance Company provid- 
 ed, by a by-law, that the proceeds of policies therein, should 
 be paid " to the widow, * * for the benefit of herself and 
 the dependent children of the deceased," with a permission to 
 the party insured, to appoint an executor to disburse snch 
 proceeds ; aud a prohibition against any disposal, " by will or 
 otherwise, so as to deprive his widow or his dependent chil- 
 dren of its benefits;" — aud the widow owned $2,000 worth of 
 other property : held, that a bequest by one insured, of a pol- 
 icy of $4,012; giving to his widow, $1,000, and the remain- 
 der to an only child, (there being no other property owned by 
 him,) was not an unreasonable exercise of the discretion vest- 
 ed in him as above. Roberts v. Roberts, 64 N. C R. 095. 
 
 2. The application for a policy of insurance, forms a part 
 of the contract of insurance where the policy refers to it as 
 such, and in an action by the insured on such policy, the bur- 
 den of proof is upon the plaintiff. Bobbitt v. L. & L. & G. 
 Insurance Co , 06 N. C. E. 70. 
 
 3. The application must be set out in the complaint, and 
 being in the nature of a condition precedent, the truth of its 
 representations must be proved by him. Ibid. 
 
 4. A representation as to the value of property insu- 
 red, is material, even though the policy contains a stipula- 
 tion to pay the two-thirds of the real value or less if the loss 
 were not so much ; but the doctrine of the immateriality does 
 not apply in such a case, the representation forming a part of 
 the contract, and being made in response to a direct ques- 
 tion. Ibid. 
 
 5. A charge in such a case, that the application was not 
 a part of the contract, that the declaration as to the value by 
 the insured was a mere representation, and that the only 
 question for the consideration of the jury was the value of 
 the property burnt, is erroneous, and the error is not cured 
 by the remark afterwards made to the jury, that unless such 
 statements were fraudulent aud false, they would not bar the 
 plainiff's right to recover. Ibid. 
 
 6. Even treating the statement as to the value as a rep- 
 resentation, it is not a correct principle, that to prevent a 
 recovery, it is necessary to show that the statement was 
 fraudulent as well as false, and herein lies the difference be- 
 tween a representation as an opinion and a representation of 
 a fac t. I bid. 
 
272 INSURANCE— INTEREST. 
 
 7. It is sufficient to avoid the policy that tbe representa- 
 tions were false, however honestly made — if material they 
 must be perfectly true. Ibid. 
 
 8. Cue whose property is insured at bis own request in 
 tbe name of another, being bis agent, bas an insurable in- 
 terest. Ibid. 
 
 9. An insurance company is not bound by any private 
 arrangement entered into by their agent, acting without tbe 
 knowledge or authority of the company in respect to tbe pay- 
 ment of tbe premium on a policy of insurance. Especially 
 is this so, when tbe company, instead of affirming tbe action 
 of the agent, gives notice to tbe assured, to "pay bis note 
 when due, and save his policy." Ferebee v. N. C. Home Ins. 
 Co., 68 N. C. R. 11. 
 
 10. Although an insurance company may waive the right 
 to declare a policy void, for the reason that a note given for 
 cash premium is not paid at maturity ; still such waiver does 
 not preclude the company from insisting upon a condition 
 contained in the policy, declaring it void, in case of loss or 
 damage by fire, if the note so given, or any part thereof, 
 shall remain unpaid and past due, at the time of such loss 
 or damage. Ibid. 
 
 See (Corporation, 2, 3, 4, 5, 6.) 
 
 INTEREST. 
 
 1. When interest upon an account is charged upon a 
 wrong principle, if no substantial damage is done to either 
 party tbe court will not disturb it. Fhelan v. Hutchinson, 
 Phil. Eq. R. 116. 
 
 2. Coupons, when detached from the bond to which they 
 were annexed, bear interest from the time when they were 
 due and payable. Burroughs v. (Jommissisners of Richmond ', 
 65 N. C. E. 234 
 
 4. Whether interest on a guardian note can be com- 
 pounded after his death, quere, but such difficulty may be 
 obviated by a remission of the interest alleged to be in excess, 
 even in this court Biggs v. Williams, 66 N. C. R. 427. 
 
 4. When a promissory note is given with a stipulation 
 that the interest is to be paid annually or semi-annually, the 
 maker is chargable with interest at the like rate upon each 
 deferred payment of interest, as if he had given a promissory 
 note for the amount of such interest. By this mode a com- 
 
INTEREST. 273 
 
 putation compound interest is not given, but a middle course 
 is taken between simple and compouud iuterest. Bledsoe v. 
 Nixon, (39 N. C R. 89. 
 
 5. The rule for computing interest on a bond given in 
 South Carolina, "interest to be paid annually, otherwise to 
 become principal," is to calculate the interest upon the prin- 
 cipal for the first year, setting the interest aside, and then 
 for the second, third and so on until the time for the tirst 
 payment. Then calculate the interest on each year's inter- 
 est to the same time, and apply the payment first to the ex- 
 tinguishment of this interest, and the surplus, if any, to a 
 reduction of the principal. If the payment is not sufficient 
 to pay this interest, first extinguish the interest calculated 
 on each year's interest, and apply the surplus to the princi- 
 pal iuterest as far as it will go. If the payment is not enough 
 to satisfy the interest on the interest, it is set aside, and 
 neither stops nor bears interest. Bratton v. AUison, 70 N. 
 C. R. 498. 
 
 6. A tender of Confederate money to be valid to stop 
 interest should be accompanied with an offer to pay the 
 scaled value of the note or claim sued upon ; otherwise, in- 
 terest will run from the demand of payment, or from the 
 time the process in the actiou is served. Tate v. Smith, 70 
 N. C. R. 685. 
 
 7. Where it was found on the trial below, that the de- 
 fendants were ready, able and willing, and offered to pay in 
 Confederate money the amount of two notes due the plain- 
 tiff, soon after they fell due in February, 1864, which offer 
 was refused : held, that the offer to pay stopped the interest 
 from the time it was made until the date or service of the 
 summons in the action brought to recover the notes. Bank 
 of Charlotte v. Stenlwuf.e, 70 N. C. R. 703. 
 
 See (Banks and Bank Notes, 1, 2, 14.) 
 
 18 
 
274 
 
 JUDGMENTS— I.— II.— Ill —IV 
 
 JUDGMENTS. 
 
 I. Confession of judgment. 
 II. Judgment by default. 
 
 III. On joint and several notes. 
 
 IV. Judgments against executors, 
 
 administrators and heirs. 
 V. Interlocutory judgment. 
 VI. Docketing judgments and its 
 
 effect. 
 VII. In what solvable. 
 
 VIII. Satisfaction of judgments. 
 IX. Of the effect of a judgment. 
 X. Of proviug and enforcing judg- 
 ments. 
 XL Of dormant, irregular, void 
 
 and erroneous judgments. 
 XII. Of vacating judgments. 
 XIII. Petition to re-hear judgments. 
 
 I. CONFESSION OF JUDGMENT. 
 
 It is a well recognized practice to confess a judgment with 
 a defeasance, and the Courts will take notice of the condition,, 
 and will not permit an execution to issue in violation of it. 
 1 Tidd. Pr. 560. Hardy v. Reynolds, 69 N. C R. 7. 
 
 II. OF JUDGMENTS BY DEFAULT. 
 
 See (Judgments — Of proving and enforcing judgments, 4, 
 5, 6, 7, 8.) (Judgments — Of vacating judgments, 4, 5, 6,. 
 12, 16, 17, 23, 24,25, 27, 35.) 
 
 III. ON JOINT AND SEVER.' L NOTES. 
 
 1. If A and B executed a joint and several note, a judg- 
 ment against A is no bar to an action against B. The cred- 
 itor may take several judgments and make bis money out of 
 either of them, or make a part out of one and a part out of 
 the other. Hix v. Davis, 68 N". C. R. 231. 
 
 2. Debts, the amount of which are certain and made so 
 by the act of the parties, and claims for damages for torts, the 
 amount of which are uncertain, and depend upon the 
 finding of a jury, commented on, explained and distinguished 
 from each other by Chief Justice Pearson. Ibid. 
 
 IV. OF JUDGMENTS AGAINST EXECUTORS, ADMINISTRATORS AND HEIRS. 
 
 A judgment confessed by executors will bind them in 
 their individual capacity, though they style themselves as 
 executors in making such confession. Hall v. Craige, 65 
 N. C R. 51. 
 
JUDGMENTS— Y.—YI. 275 
 
 V. INTERLOCUTORY JUDGMENT. 
 
 When an action under the old system was brought for 
 goods sold and delivered to the defendant, and he demurs 
 thereto, if the Court overrules the demurrer, it would be irreg- 
 ular to grant a final judgment, but such judgment must only 
 be interlocutory, and the inquisition of a jury is necessary to 
 ascertain the value of goods so sold after having the proofs of 
 both parties to the action. Merwin v. Ballard, 66 N. C li. 
 398. 
 
 See (Judgments — Of vacating judgments, 43, 44.) 
 
 VI. DOCKETING OF JUDGMENTS AND ITS EFFECT. 
 
 1. A judgment given by a magistrate in one county can- 
 not be docketed in another, unless previously docketed in the 
 former county ; and what is allowed to be docketed in the 
 latter county is, the transcript of the judgment as docketed 
 in the former. McAden v. Banister 03 N. 0. R. 478. 
 
 2. Where a docketed judgment is relied as authority for 
 an arrest of the person by process of execution thereunder, it 
 is necessary that the affidavit and order of arrest in the 
 Court ot the Magistrate shall be docketed with the judgment. 
 Aliter, if such judgment is to be enforced by execution 
 against land only. Ibid. 
 
 3. Upon an appeal from an order of the clerk, to the 
 judge, the latter may hear any evidence that would have 
 been competent before the former, although in fact not in- 
 troduced. Ibid. 
 
 4. In a case where the question before the clerk (or 
 judge) of the second county, is as to the right to issue pro- 
 cess of execution against the body of the defendant, it is not 
 competent for him to hear parol evidence, to show that an 
 affidavit and an order of arrest were in fact made before the 
 magistrate in the first county, although the transcript shows 
 none. Ibid. 
 
 .">. r J he judgment as actually docketed is the only au- 
 thority for the execution named; the form of the docketed 
 judgment depends upon that of the transcript actually sent. 
 Ibid. 
 
 6, The judgment may be properly docketed from the 
 original papers before the magistrate, instead of from a 
 transcript of them. Ibid. 
 
 7. Amendments of the judgment before the magistrate, 
 or of the transcript, can be made only before the tribunal 
 which rendered the one or issued the other. Ibid. 
 
27G JUDGMENTS— VI. 
 
 8. Where a Sheriff has notice that there is a dispute as 
 to his right to collect from the defendant certain money, and 
 afterwards pays such money to the plaintiff, pending the 
 controversy : held, that upon its being decided that such 
 money was improperly collected, the order to return it to the 
 defendant, is properly directed to the sheriff. Ibid. 
 
 9 The provision of the Code 0. P. giving plaintiffs hav- 
 ing judgment, three years in which to issue execution, applies 
 to judgments pending at its adoption: th erefore, a plaintiff 
 iu such a judgment which at the time of application was 
 more than a year old, had a right to have it docketed. Har- 
 ris v. Hill, 63 N. 0. R. 053. 
 
 10. Qucere, whether a creditor by prior docketed judgment, 
 who places his execution in the sheriff's hands after a sale, 
 can intercept its proceeds to the prejudice of the creditors by 
 subsequent docketed judgments, whose executions were in 
 the sheriff's hands at the sale. Ibid. 
 
 11. The 503d sec. of the 0. C. P., which provides for the 
 docketing a justice's judgment in the office of the Clerk of 
 the Superior Court of the county, so as to make it a judg- 
 ment of the Superior Court from the time of its being dock- 
 eted, is not repealed by the act of 1868-'9, chap. 76, entitled 
 " An act suspending the Code of Civil Procedure iu certain 
 cases." Bates v. Bank of Fayetteville, G5 N. C. R. 81. 
 
 12. Where a vendor of land receives a part of the pur- 
 chase money, and takes notes for the residue thereof, retain- 
 ing the title until said notes shall be paid, and afterwards a 
 judgment is obtained and docketed against him, and he then 
 dies, the judgment will not be a lieu upon the land or the 
 notes in the hands of the executors, but the notes will be 
 assets when collected for the payment of the debts. Moore 
 v. Byers, 05 N. C . R. 210 
 
 13. Where two or more plaintiffs had, prior to the adop- 
 tion of the new Constitution and Code of Civil Procedure, 
 obtained judgments at the same term of the county court of 
 a county, and then after such Constitution and Code had 
 been adopted, transfers them to the docket of the Superior 
 Court, at different times, but all within six months, as 
 required by sees 400 and 403 of the Code of Civil Procedure, 
 and had then issued executions on them at different times, 
 but all came to the sheriff 's hands before the sale of the de- 
 fendant's land; it was held, that under art. 4, sec. 35, of the 
 Constitution, which ordains that " actions at law, and suits 
 Equity, pending when this Constitution shall go into effect, 
 shall be transferred to the courts having jurisdiction thereof, 
 
JUDGMENTS— YL 277 
 
 without prejudice by reason of the change," the proceeds of 
 the sale under the executions shall beappplied^ro rata to all 
 of them. Jolinson v. Sedberry, Go IS". C. R. 1 
 
 14. If a number of Justice's judgments be docketed in 
 the Superior Court, they will, under the 0. 0. P., be a lien 
 upon the land of the defendant from the time, when they 
 were docketed, and will have a priority over a judgment ob- 
 tained in court by another person against the same defen- 
 dant at a subsequent time, and though an execution be issued 
 on the latter, and the sheriff levies it on the land and adver- 
 tises it for sale, yet, if before the sale executions are issued 
 on a part of the justice's docketed j udgments and are placed i n 
 the hands of the sheriff, the proceeds of the sale of the land 
 must be first applied to the payment of all the justice's judg- 
 ments. Perry v. Morris, 65 N". 0. R. 221. 
 
 15. The lien on the land of the defendant acquired by a 
 docketed judgment shall not be lost in favor of a judgment 
 subsequently docketed, unless the plaintiff in the latter take 
 out execution and give the plaintiff in the former twenty days' 
 notice before the day of sale by the sheriff, and the plaintiff 
 so noticed fail to take out execution and put it into the sheriff 's 
 hands before the day of sale as is prescribed in the 19th rule 
 of practice adopted by the Supreme Court at June Term, 
 1869. Ibid. 
 
 16. The fact that a judgment docketed in one county is, 
 afterwards docketed in another, does not deprive it of the lien 
 it had on the defendant's land in the first county. Ibid 
 
 17. Prior to the adoption of the C C. P., the lien acquired 
 by fi. fa. expired at its return. Therefore, judgments obtain- 
 ed at Spring and Fall Terms, 186!), of Guilford Superior 
 Court, and docketed respectively during the terms of said 
 Court, have priority over a judgment obtained in 1867, upon 
 which fi. fas. regularly issued up to Fall Term, 1868, of the 
 Superior Court of Alamance, and no returns made thereto, 
 at which term the said judgment was transferred and entered 
 on the judgment docket of Alamance Superior Court, but not 
 docketed in Guilford county till 24th December, 1869. Boss 
 v. Alexander, 65 N. C R. 576. 
 
 18. The law takes notice of the fractional parts of a day, 
 when there is a conflict between creditors arising as to the 
 application of money received on Justices' judgments filed 
 and docketed on the same day. Sec. 503, 0. 0. P. (Bat. 
 Rev. c. 6:;, s. 19.) Therefore, judgments filed and docketed 
 at 2 o'clock, 30 minutes, P. M., have priority over judgments 
 tiled and docketed at a later hour of the same day. Bates v 
 Hinsdale, 65 X. C. R. 423. 
 
278 JUDGMENTS— VI.— VII.— VIII. 
 
 19. By virtue of sec. 254, 0. C. P., (Bat. Rev. c. 17, s. 
 254) a judgment from the time it is docketed is a lien on all 
 the interest of whatever kind the defendant has in real estate, 
 whether it be such as can be seized under the execution or 
 not. Iloppoclc, Glenn & Co. v. Shober, 69 N. U. R. 153. 
 
 20. Under our former system a judgment did. not bind 
 lands proprio vigor a, but if an execution (fi. fa) was taken 
 out upon the judgment, it would bind the land from its teste, 
 and the lien thus acquired could be continued by issuing of 
 alias and pluries executions regularly from term to term 
 without intermission, but not otherwise. Hadley v. Nash, 
 69 N. 0. R. 102. 
 
 21. The United States Government has an undoubted 
 right to priority of payment is case of a general conveyance 
 of his property^by an insolvent, but that right is subject to a 
 prior lien, and if a lieu be acquired by a docket judgment it 
 will not be defeated by a subsequent assignment, unless the 
 insolvent be thrown into bankruptcy by proceedings com- 
 menced within four months thereafter. Hoppock v. Shober, 
 09 K 0. R. 153. 
 
 22. The lien on land acquired by a docketed judgment 
 shall not be lost in favor of a judgment subsequently dock- 
 eted, unless the plaintiff in the latter take out execution and 
 give the plaintiff in the former twenty days notice before the 
 day of sale by the sheriff, and the plaintiff so notified shall 
 fail to take out execution and put it into the sheriff's hands 
 before the day of sale Rule 19 — 63 1ST. 0. 009. Dorherly 
 v. Logan, 70 N. 0. R. 558. 
 
 Vxl. IN WHAT SOLVABLE. 
 
 Judgments given now are solvable in Treasury [Notes of 
 the United States. Mitchell v. Henderson, 63 jS". 0. R. 643. 
 See (Scale of Depreciation, 10, 27, 28.) 
 
 V II. SATISFACTION OF JUDGMENTS. 
 
 1. A proceeding by a motion supported by affidavits after 
 a notice to the opposite party, to have satisfaction of a judg- 
 ment entered of record upon the ground that it has been 
 paid since its rendition, is the appropriate remedy in such a- 
 case, but is neither a special proceeding nor a civil action. 
 It is only a motion in a cause still pending. Foreman v. 
 Mbb, 05 N. C. R 128. 
 
 2. Whenever it is sought to establish an authority in a 
 
JUDGMENTS— YIIL— IX. 279 
 
 clerk, to bind a plaintiff by the receipt of depreciated cur- 
 rency in payment of a judgment, it must be shown either 
 that the receipt was expressly authorized by the plaintiff, or, 
 that the plaintiff has done acts from which such an author- 
 ity may fairly be implied. Purvis v. Jackson, 69 N. 0. E. 
 474 
 
 3. Acts from which such an agency in the clerk beyond 
 what the law (Itev. Code, chap. 31, sec. 127,) gives him, may 
 be implied, must be such as under the circumstances were 
 reasonably calculated to iuduce the debtor to believe that 
 the clerk was the creditor's agent for the purpose ; as, for 
 instance, that the creditor had procured an order to collect 
 the money ; or had issued an execution without instructing 
 the sheriff what kind of money he was to receive in pay- 
 ment, &c. And if, from such acts, the debtor has been 
 reasonably led to believe that the clerk was authorized to 
 receive payment of a judgment in Confederate money, and 
 acting on that belief, pays the judgment in such money, it is 
 immaterial whether the clerk was really the agent or not ; 
 the creditor being estopped from denying the agency, and 
 the debtor protected in his payment. Ibid. 
 
 4. Where the plaintiff, before the war, obtained a judg- 
 ment against an administrator, but issued no execution there- 
 on and demanded no payment thereof, either before or during 
 the war, and upon the defendant's voluntarily paying the 
 amount of the judgment into the clerk's office in 1803, the 
 plaintiff as soon as he heard thereof at once repudiated such 
 payment : held, that notwithstanding prudent business men 
 in the same community and at the time were receiving Con- 
 federate money in payment of debts, still the plaintiff might 
 disregard such payment by the defendant altogether, and 
 recover the whole amount of the original judgment. Ibid. 
 
 See (Confederate Money 13.) 
 
 IX. OF TEK EFFECT OF A JUDGMENT. 
 
 1. A judgment rendered against a certificated bankrupt, 
 merely to ascertain the amount of his indebtness to the plain- 
 tiff, is not such a judgment as will make the sureties of said 
 bankrupt liable therefor on an appeal bond. Fontaine v. 
 Wmibrooks, 65 N C. R. 528. 
 
 2. It is well settled that a judgment rendered according 
 to the course of the Court, cannot be collaterally impeached; 
 and judgments of Justice's Court, regularly docketed upon 
 the judgment docket of the Superior Court, form no excep- 
 
280 JUDGMENTS— IX.— X. 
 
 tion to the principle above stated. Beid v. Spoon, 66 X. 0* 
 E. 415. 
 
 3. Where a suit was brought in the name of A B, Guar- 
 dian, vs. C D, and was stated on the docket in the name of A. 
 B, Gua., sometimes in the name of A B, and sometimes A B, 
 Ex'r or Adrn'r, and after the death of plaintiff was suggested 
 and his personal representative was made a party it continued 
 on the docket in the same name, until judgment was render- 
 ed, which was in favor of the plaintiff for debt and costs: held>. 
 that though the clerk as a mere index or memorandum, con- 
 tinued to state the case on the docket as it had stood before, 
 yet as it was the same case, it was a judgment in favor of the 
 persona] representative. Gills v. Fuller, GO X. 0. E. 110. 
 
 4. When a plaintiff in his complaint purports to set out a 
 judgment between certain parties, and defendant pleads mil 
 tiel record, and it appears from an examination of the record, 
 with reasonable certainty, that the judgment and record are 
 the same, held to be sufficient. Ibid. 
 
 5. The Supreme Court cannot reverse the finding of a 
 Judge below, upon the facts, yet they have a right to reverse 
 his rulings upou the legal effect and operation of a record. 
 Ibid. 
 
 6. After judgment, the statutes of amendment cure de- 
 fects arising from " mistake in the name of any party or per- 
 son, or for any informality in entering judgment, or in mak- 
 ing up a record," Eev. Code, ch. 3; and "no variance be- 
 tween allegation and proof shall be material, unless it has 
 misled." C. 0. P., sec. 128. Ibid, 
 
 7. The addition of the word "executors," in a judgment 
 confessed b}^ a defendant is mere surplusage, and does not 
 prevent his being charged de bonis propriis with the amount.. 
 Hall v. Craicje, OS X. C. E. 305. 
 
 X. OF PROVING OR ENFORCING JUDGMENT. 
 
 1. In an action upon a, former judgment, the record of 
 the judgment is the proper evidence thereof; and its pro- 
 duction cannot be dispensed with, or supplied by any other 
 evidence. Walton v. McKesson, 04 X. 0. E. 77. 
 
 2. Where the record of a judgment has been destroyed, 
 the first step towards obtaining a remedy, is by proceeding 
 in the court where it was given, to the end that the record 
 may be supplied. Ibid. 
 
 3. The proper method of enforcing a judgment nisi, is 
 by action, or special proceeding commenced by summons ; 
 
JUDGMENTS— X— XL 281 
 
 aud this rule is not affected in ca^es of sheriffs, by sec. 263 
 of 0. 0. P. (Bat. Eev. 0. 17, s. 263.) Thompson v. Berry, 
 64 X. 0. R. 77. 
 
 4. A judgment by default, in an action for goods sold and 
 delivered, operates as an admission by the defendant of a 
 cause of action, and that the plaintiff is entitled to nominal 
 damages ; but it does not relieve the plaintiff from the neces- 
 sity of proving the delivery of the things alleged to have 
 been sold and delivered, and their value. Smith v. Galling, 
 64 X. 0. R. 291. 
 
 5. Therefore, in such case the defendant may prove that 
 such things never were delivered. Ibid. 
 
 6. A judgment by default for want of an answer, admits 
 that the plaintiff has a good cause of action, and that he is 
 entitled to some damages. Parker v. House, 66 X. 0. R. 374. 
 
 7. In such case, if the plaintiff's claim for damages is 
 certain or can be rendered certain, by mere computation, 
 there is no need of proof, as the judgment by default ad- 
 mits the claim — but when the measure of damages is uncer- 
 tain, the assessment must be made upon proof — and the onus 
 as to the amount is upon the plaintiff. Ibid. 
 
 8. Therefore, where there was a judgment by default, in 
 a suit on a constable's bond, the plaintiff must prove that 
 the debtors were solvent, and the amount of damage sus- 
 tained by the constable's not using proper diligence in col- 
 lecting the claims placed in his hands. Ibid. 
 
 XL OF DORMANT, IRREGULAR, VOID AND ERRONEOUS JUDGMENTS. 
 
 1. An entry by a clerk upon the Execution Docket in 
 pursuance of a letter from the plaintiff's counsel, that no ex- 
 ecution was to issue until ordered by the counsel, has no 
 effect in preventing the judgment from becoming dormant. 
 Neely v. Craige, Phil. L. R. 187. 
 
 2 The acts of February, 1863, ch. 34, and of 1866 ch. 50, 
 suspending the Statute of Limitations, do not prevent judg- 
 ments from becoming dormant. Ibid- 
 
 3. A judgment is not void because no complaint has been 
 filed. Leach v. W. N. C. R. B. Co , 65 X. 0. R 486. 
 
 4. If a complaint is founded upon an assumpsit for goods 
 sold, a final judgment without proof of value, &c, as upon a 
 default, is erroneous. Oates v. Gray, 6(J X. C. R. 442. 
 
 5. In such cases the clerk must ascertain the amount due 
 in the mode prescribed by sec. 217, 0. P. Ibid. 
 
 6. The entry on the docket was sufficient notice of appear- 
 
282 JUDGMENTS— XI.— XII. 
 
 ance to entitle the defendant to the five days notice under 
 the statute. 1 bid. 
 
 7. Judgments void or irregular by reason of some infor- 
 mality, will be set aside only at the instance of a party to the 
 action who is prejudiced by it. Hervy v. Edmunds, OS 
 K 0. E. 243. 
 
 8. Judgments void for want of jurisdiction in the court, 
 if such appears on the record, may be collaterally impeached 
 in any court in which the question arises. Such judgments 
 may be avoided and striken from the record by the court, ex 
 mero motu, or at the instance of any person interested in 
 having it done. Ibid. 
 
 9. A Judge ot the Superior Court has a right, with con- 
 sent of parties, to sign a judgment in vacation out of court, 
 and to oider the same to be entered of record at the ensuing 
 term. Ibid. 
 
 10. Sees 315 and 325 of the Code of Civil Procedure, are 
 still in force, notwithstanding the acts of 1808-69, chap. 66, 
 suspending the Code in certain cases. Ibid. 
 
 1 1. An irregular judgment may be set aside at any time, 
 and an injured party is not confined to a year after he has 
 notice of it A motion to vacate such judgment is the proper 
 course to pursue, giving the opposing party notice of such 
 motion. Cowles v. Cooper, 69 N. C It. 406. 
 
 XII. OF VACATING JUDGMENTS. 
 
 1. An entry upon the trial docket of the word ''judg't," 
 made in the Superior Court, in open court, and in accordance 
 with its regular rules and practice, is an entry of a regular 
 judgment, and cannot be vacated at a subsequent term of 
 the" Court. Davis v. Shober, Phil. L. R. 18. 
 
 2. Distinctions between judgments, and entries thereof 
 upon the records, stated by lieade, J. 1 bid. 
 
 3 A writ in debt had been returned to Fall Term, 1863, 
 and counsel marked his name for the defendants, but entered 
 no plea ; at Fall Term, 1804, without the knowledge of the 
 defendants, except M., (who was one of two administrators 
 of the surety to the debt.) and without the knowledge of 
 their counsel, the counsel for the plaintiff signed " Judgment 
 by default final for," &c; at the next term (Spring I860,) 
 the plaintiff's counsel agreed that the judgment might be 
 stricken out as to all of the defendants excepting the ad- 
 ministrators : held, that there was no error in the refusal of 
 the judge below to strike out the judgment as to such ad- 
 ministrators. Sharpe wRintels, Phil. L. K. 34. 
 
JUDGMENTS— XII. 283 
 
 4. In an action sounding in damages, for an unliquidated 
 money demand, a judgment by default final is irregular, and 
 on motion will be set aside. Moore v. Mitchell, Phil. L. B. 
 304. 
 
 5. Tbe judgment to be entered by default against a part 
 of numerous defendants, others of whom plead or are not 
 taken, is, according to the course of the Court, only inter- 
 locutory ; therefore, 
 
 0. Where a writ (in assumpsit upon a note) against 
 seven, was returned to Spring Term 1807, executed upon 
 five; and at the return term, three of those taken entered 
 pleas: a judgment final by default was taken against the 
 other two, and at the same time an alias writ was ordered 
 against those not taken : held, upon application by the par- 
 ties against whom judgment had been taken, made at Spring 
 Term 1808, that such judgment was irregular; and should 
 have been set aside so far as it was final, and allowed to 
 stand as an interlocutory judgment. Dick v. McLaurin, 
 63 X. O.K. 185. 
 
 7. In a case in which, at Fall Term 1803, an entry of 
 "judgment" was made which was brought forward to Fall 
 Term 1804, and no courts being held iu the comity during 
 1805, on the 8th of March, 1866, (out of term time) the 
 notes declared on were handed to the clerk, who thereupon 
 extended his memorandum above into a formal judgment as 
 of Fall Term 1804: held, that such judgment was not irreg- 
 ular. Jacobs v.Burgwyn, 03 N. C. 11. 11)3. 
 
 8. That the execution which issued thereupon on the 8th 
 of March, 18(10, was irregular, as being issued upon a dormant 
 judgment, and therefore might be set aside, on motion by the 
 defendants, Ibid. 
 
 !>. The assignee of a defendant has no right to have two 
 judgments against such defendant set aside on the. ground 
 that they were taken upon the same specialty. Jacobs v. 
 £ Burgwyn, 03 N. C. B. 196. 
 
 10. Xo one but the defendant in an execution can com- 
 plain oi a judgment for being ii regular. Ibid. 
 
 11. The judgments mentioned above are not irregular. 
 Creditors complaining of them cannot be relieved by motion 
 t<> s«4 them aside. Ibid. 
 
 12. A Court after allowing an irregular judgment by de- 
 fault final, taken at a previous term, to be amended into a 
 judgment by default and enquiry, Juts power at the same term 
 to strike out such judgment altogether, and permit the de- 
 fendant to plead ; therefore, n<> appeal lies to the Supreme 
 
 ■Court from such action. Dick v. Viclison, 03 X. C. E. 418. 
 
284 JUDGMENTS— XIL 
 
 13. Judgments can be arrested only for some matter 
 which appears, or for the omission of some matter which 
 ought to appear, upon the record. State v. Douglas, 63 N. 
 0. E.500. 
 
 14 A regular final judgment cannot be set aside at a sub- 
 sequent term, on motion, even although it was entered under 
 a misapprehension of counsel. Murphy v. Merritt, 03 N. G. 
 E. 502. 
 
 15. An appeal from an order to vacate a judgment, leaves 
 such judgment, and any execution issued under it, in full 
 force. Ibid. 
 
 1G. Where a judgment by default has been taken against 
 a principal and his surety, the fact that no process in the suit 
 had been served upon the former, affords no ground for vaca- 
 ting such judgment as against the latter. Mason v. Miles, 
 63 JST. 0. K. 564. 
 
 17. Under the practice in this State, by analogy to the 
 old, relief against a judgment, sought because the defendant 
 had not been served with process in the case, is not to be made 
 the subject of a quasi equitable proceeding, but must be ap- 
 plied for by a motion incidental to the judgment impeached. 
 Ibid. 
 
 18. The Superior Courts have power to vacate judgments 
 improperly or irregularly taken in the former Superior or 
 County Court. Ibid. 
 
 19. Failure to attend a term of court because the party 
 knew nothing personally about the cause of action, and ex- 
 pected that a witness who had been duly summoned would 
 attend, — "is not excusable neglect" (0. C. P. s. 133) so as 
 to justify a Judge at a subsequent term in setting aside a 
 judgment rendered against such a party in the absence of 
 such witness. Waddell v. Wood, 64 N. 0. R 624. 
 
 20. Semble, that the defendant had no right to appeal 
 from the order of the Judge refusing to set aside the judg- 
 ment. Ibid. 
 
 21. Where a judgment was rendered, upon an attach- 
 ment, in August 1866, — the defendant had notice thereof in 
 November 1866, and application was made by him in March 
 1869 to vacate it, on the grounds: that he had had at the 
 time it was rendered, no notice of the action in the came in 
 which it was rendered, that he was an infant when the note 
 was given, and had had no opportunity of pleading it: Held, 
 that, in any view, his laches after November 1866, would de- 
 feat the application. Howell v. Barnes, G4 N. G R. 626. 
 
 22. A motion to amend, or to vacate, a judgment, can- 
 
JUDGMENTS— XII. 285 
 
 not be entertained by the court of the county to which such 
 judgment has been transferred, and where it has been dock- 
 eted. It should have been made in the county where the 
 judgment was rendered. Martin v. Deep River Co., 64 N. 0. 
 R. 633. 
 
 23. If a writ of capias ad respondendum (under the former 
 system) were not returned for two terms, it lost its vitality : 
 therefore, where such writ was executed returnable to Spring 
 Term", 1804, of Johnston Superior Court, and no such court 
 sat then, or at Fall Term : Held, that a judgment by default 
 taken in such suit at Spring Term 1807, was irregular. 
 Williams v. Rockwell, 64 N. 0. R. 325. 
 
 24. A judgment by default final upon a note payable in 
 Confederate money, is irregular. Ibid. 
 
 25. The proper remedy for the defendant in such case, is 
 by a motion in the cause. Ibid. 
 
 20. A court cannot order satisfaction of a judgment to 
 be entered because of some matter accruing before such judg- 
 ment was rendered. Jarman v. Saunders, 04 N. 0. R. 367. 
 
 27. Where the Plaintiff stated that the defendant had 
 formerly sued him and that after such action was brought, 
 an accord and satisfaction had taken place between them, 
 and that, upon that account, and relying upon the implied 
 promise of the defendant not to prosecute such suit, he had 
 neglected to plead therein ; that the defendant had thereupon 
 taken judgment against him, and was pressing execution, 
 &c. : held, that the plaintiff was entitled to relief, by an 
 order, that upon his filing at its next term, in the court where 
 this suit had pended, a bond, with approved security, suffi- 
 cient to cover the debt, &c, the defendant should withdraw 
 his execution, the judgment vacated, and the plaintiff be 
 allowed to plead: all costs of the present application to follow 
 the result of such new trial. Ibid. 
 
 28. An application, although by summons and complaint, 
 treated as a motion in the original cause. Ibid. 
 
 20. Where a complaint demanded judgment that a pre- 
 vious judgment obtained by the defendant against the plain- 
 tiff should be set aside, on the ground that it had been en- 
 tered upon an understanding that certain deductions should 
 lie allowed, which, subsequently, the plaintiff therein had 
 refused to allow: and the answer took issue upon these all* - 
 gationsj held, that until the issue made between the partus 
 had been decided, the case was in no situation to warrant 
 the Judge in setting aside the previous judgment. Atkinson 
 v. Cox, 64 X. 0. R. 576. 
 
286 JUDGMENTS— XII. 
 
 30. The 0. 0. P., sec. 133 ; makes it discretionary with a 
 Judge whether he will relieve a party against a judgment taken 
 against him through his " inadvertance, mistake, surprise or 
 excusable neglect." If a Judge refuses to entertain a motion 
 to set aside a judgment for any of the enumerated causes, 
 because he thinks he has no power to grant it, then there is 
 error, and he has failed to exercise the discretion conferred on 
 on him by law. Hodgins v. White, (55 N. 0. R 393. 
 
 31. After hearing the evidence and finding the tacts under 
 the above recited section of the 0. 0. P., the action of the 
 Judge is conclusive upon the parties, from which there is no 
 appeal. Ibid. 
 
 32. This discretion, however, is not arbitrary, but im- 
 plies a legal discretion. As for instance, if the Judge mis- 
 take the meaning of the statute as to what is " mistake, inad- 
 vertence, surprise or excusable neglect." In such a case his 
 judgment is the subject of appeal and review. Ibid. 
 
 33. Where a final judgment is rendered in an action after 
 the death of one of the defendants, it will be vacated upon 
 motion, as it is " error in fact" to take judgment against one 
 who is dead. The death of the defendant may be suggested, 
 and the action proceed against ihe surviving defendant ; and 
 it is the business of the plaintiff to make such suggestion, 
 but the judgment being joint, the objection may be taken 
 by the surviving defendant. Burke v. Stohely, 05 N. 0. R. 
 569. 
 
 34. The judge, and not the clerk of the Court, has juris- 
 diction under the 0. 0. P., sec. 133, to relieve upon motion 
 a party from a judgment taken against him through his mis- 
 take, inadvertence, surprise or excusable negligence. Griel 
 v. Vernon, Go N. 0. R 76. 
 
 35. A judgment taken by default for want of a plea is' a 
 surprise upon a party under the 0. 0. P., sec. 133, when he 
 has employed an attorney to enter his pleas, and such attor- 
 ney has neglected to do so; and the neglect of the client to 
 examine the records to see whether his pleas have been_en- 
 tered is an excusable one. Ibid. 
 
 36. The finding by the Judge of the Superior Court of 
 the facts which, under the C. C. P , sec. 133, are alleged to 
 constitute surprise and negligence, is conclusive, and cannot 
 be appealed from ; but whether such facts, when found con- 
 stitute surprise or excusable negligence is a question of law, 
 and from the decision of the Judge upon it an appeal may 
 be taken. 1 bid. 
 
 37. Where an attorney was written to by the defendant 
 
JUDGMENTS— XII. 237 
 
 to appear in a cause then returnable to a term of his court 
 in 1861, and he tailed to make an appearance thereto, when 
 a judgment by default and enquiry was obtained in 1863: 
 held, that it did not make out such a case of ''mistake, in- 
 advertence, surprise or excusable negligence," as to justify 
 the court in setting aside said judgment. Burke v. Stokely, 
 63 X. 0. K, 569. 
 
 38. On a motion made to vacate a judgment under the 
 133d section 0. 0. P., it it is the duty of the Judge to find 
 and state the facts, in order that his decision thereon may 
 be revised by this Court. Pmvell v. Weith, W N. 0. R. 423. 
 
 39. In such case, where one of the grounds was, that the 
 action (which was commenced under the old system) had not 
 been transferred in due time, a statement of the Judge that 
 " the action was transferred within the time prescribed by 
 law," is not a sufficient finding of the facts, but he should 
 have stated when the suit was transferred. Ibid. 
 
 40. Before this court can vacate a j udgment on the ground 
 of excusable neglect, under C. C. P., sec. 133, it is the duty 
 of the Judge of the Superior Court to find the facts as they 
 should be set out in a special verdict. Clegy v. N. Y. W. S. 
 L. Co, 66 ET. C. E. 391. 
 
 41. In cases arising under the new system, issues of fact 
 cannot be heard before this court, and it can only review the 
 law which His Honor below applies to the facts as found by 
 him. Ibid. 
 
 42. Where a judgment was obtained before a justice of 
 the peace, and docketed in the office of the Superior Court 
 Clerk, the court has no power, upon motion, to set aside such 
 judgment and enter the cause upon the civil issue docket. 
 Ledbetter v. Osborne, 66 N. C. R. 379. 
 
 43. Where a judgment was obtained in a court of law, and 
 an injunction was afterwards issued to restrain the collection 
 of it, which injunction was dissolved and judgment entered 
 upon the injunction bond : held, that a motion to vacate the 
 late judgment, upon the allegation that the originalone had 
 been satisfied bv payment to the sheriff, could not be enter- 
 tained. Council v. Willis, 66 N. C. R. 359. 
 
 44. If such payment had been made, the regular and pro- 
 p i course would have been to plead the same, or have satis- 
 faction entered upon the record, and not offer proof of pay- 
 ment upon a motion to vacate a regular judgment Ibid, 
 
 45. Under 0. C. P., sec. 133, a Judge may in his discre- 
 tion, and upon such terms as may be just, at any time within 
 a year after notice, relieve a party from a judgment order, 
 
288 JUDGMENTS— XII. 
 
 or other proceedings taken against him, by mistake, inadver- 
 tence, surprise, or other excusable neglect. Watson v. Sholds y 
 67 N. C. E. 235. 
 
 46. Under the new Constitution, application to a Judge 
 is the more appropriate remedy, as he finds the facts, and 
 the Supreme Court only reviews his legal conclusion ; whereas, 
 in applications for certiorari the court must find the facts. 
 And although it may not come without the prohibition that 
 the '' Supreme Court shall not try issues of facts," yet the 
 court prefers not to try " questions ot fact," as contradistin- 
 guished from "issues of fact," when it can be avoided. 
 Ibid, 
 
 47. When a defendant moved to vacate a judgment, upon 
 the ground of excusable neglect, and the excuse assigned was 
 that his counsel by mistake, had misinformed him as to the 
 time of holding the court, whereby he failed to file an answer: 
 held, that the excuse for not filing the answer was not suffi- 
 cient, when the facts show, that the defendant did not suffer 
 harm by mistake of his counsel. Clegg v. White Soapstone 
 Co., 67 N. C. E. 302. 
 
 48. When the court below refused a party permission to 
 file an answer, at a term subsequent to the time allowed by a 
 former order, the appellate court must assume that the ques- 
 tion of "excusable neglect " was passed upon. If the party 
 was dissatisfied with the ruling, he had a light to appeal, 
 and it was his duty to do so, for a motion to be vacated is 
 not a substitute for an appeal, but a relief against accidents. 
 Ibid. 
 
 49. The Code of Civil Procedure, sees. 132 and 133, 
 wisely clothes the Superior Court Judges with large discre- 
 tion as to amendments in furtherance of justice and relief in 
 cases of mistake : therefore held, That it was right for the 
 Judge below to set aside a judgment entered up after the 
 defendant and his counsel had left the Court, and in so doing 
 he exercised a sound discretion. Deal v. Palmer, 68 N. C. 
 R. 215. 
 
 50. A Judge has no power to set aside a judgment 
 granted by a Justice of the Peace, which had been docketed 
 in the Superior Court of the County where the same was ob- 
 tained. Much less has a Judge of another judicial district 
 any power to set aside or interfere with a similar judgment, 
 though the same is likewise docketed in the court of a county 
 within his district, and execution issued from that court. 
 Birdsey v. Harris, 68 N". 0. E. 92. 
 
 51. The judgment authorized to be set aside by the 
 
JUDGMENTS— Xir. 289 
 
 Superior Court on account of mistake, inadvertence, surprise, 
 •or excusable neglect, refers to judgments rendered at a pre- 
 vious term, and does not relate to what takes place at the 
 trial term. McOullock v. Doak, 08 N. G. E. 207. 
 
 52 When a judgment which had been standing for sev- 
 eral terms, and upon which an execution had issued and the 
 laud of defendant sold, had been set aside upon the motion 
 of the defendant, it requires no notice of a motion on the 
 part of the plaintifi to revoke the order setting the judgment 
 aside, and to re-instate the same and the execution on the 
 docket. Perry v. Pcarce, 08 X. 0. E. 307. 
 
 53. Where the words "judgment according to report" 
 were entered on the docket, and no final judgment was 
 drawn up and sigued by the Judge, and where the counsel 
 for the party in whose favor such judgment was rendered, 
 declined to draw up any final judgment, but filed exceptions 
 to the report, during the week and before the court was ad- 
 journed, and when at the next Term of the court the Judge 
 set aside the "judgment according to report," and heard the 
 cause on the exceptions to the report: held, that this action 
 was within the discretion of his Honor, and that it was not 
 arbitrarily or unlawfully exercised. Utley v. Younci, 08 X. 
 C. R. 387. 
 
 54. The mistake, inadvertence, surprise, or excusable 
 neglect, stating in sec. 133, C. O. P., as a ground for relieving 
 a party from a judgment, &c, is a question of law, and if the 
 Judge below errs in his ruling in regard thereto, this court 
 will review his decision. The Judge is the sole finder of the 
 
 facts upon which application for such relief rests. Powell v 
 Weith. 68 X. O. B. 342. 
 
 bo. When an appeal is taken from the final judgment of 
 the Superior to the Supreme Gourt, the whole case is taken 
 up to the latter court, and if the judgment be affirmed, re- 
 mains there, so that the Judge of the "Superior Gourt has no 
 power to set aside the judgment upon the ground of mistake, 
 &c, under sec. 133, G. C. P. Isler v. Brown et al, 0!) X. C. 
 E. 125. 
 
 50. When judgment has been obtained in an attachment 
 against a company, upon a fraudulent demand, sued by a 
 wrong name, and having no notice of the action, such judg- 
 ment should be set aside and the company allowed to plead, 
 although the same was known by one name as well as an- 
 other. Deep Paver Copper Co. v. Martin, 70 X. E. 300. 
 (See Xotice 4 ) 
 ID 
 
290 JUDGMENTS— XIII —JUDGES, &c. 
 
 XIII. PETITION TO RE-HEAR JUDGMENTS. 
 
 1. Upon a petition to rehear a judgment in this Court at 
 a former term, the Court will not reverse or vary the former 
 judgment unless it plainly appears that injustice was thereby 
 done the petitioner. Johnson v. Hanner, 08 N\ C. R. 516. 
 
 2. The Supreme Court has no power to entertain a peti- 
 tion to rehear a criminal action. It never passes judgment 
 in such cases, but only gives its opinion, and orders it to be 
 certified to the Court below, to be carried into effect by that 
 Court. State v. Jones, 09 N. C. R 10. 
 
 3. A party plaintiff has no right to have a decree re-heard 
 by which certain lands were directed to be sold, (and which 
 afterwards confirmed the sale,) when such party is in no way 
 interested iu the proceeds of sale, and did not ask a sale in 
 her original complaint. Hinton v. Hinton, 70 N\ C. E. 730. 
 
 4. A re-hearing is not a matter of right, but rests in the 
 sound discretion of the Court, where the parties to a final 
 judgment fail to appeal by their own default. Williams v. 
 Alexander, 70 55". C. R. 005. 
 
 5. In a petition to rehear, it should appear either that 
 there is error of law apparent on the record, or that testimony 
 has been newly discovered which would materially vary the 
 case. That no pleadings have been filed in a cause before 
 the Probate Court, and that evidence of the witnesses was 
 not taken by question and answer, and signed, are no such 
 grounds of error of law as will entitle a party to have the 
 cause re-heard after final judgment, especially when it ap- 
 pears that such party had every opportunity for a full de- 
 fence, and of an appeal. Ibid. 
 
 JUDGES EXCHANGING DISTRICTS. 
 
 1. Whenever a Judge exchanges Districts with another,, 
 with the consent of the Governor, or whenever he shall be 
 required by the Governor to hold a specified term of a Supe- 
 rior Court out of his proper District, the authority of the 
 Governor should be of record in every county in which he 
 holds a term, and should be attached to the record of every 
 appeal to this court. Judges who exchange Districts by the 
 consent of the Governor for a whole riding, or series of courts, 
 take the place of each other for all purposes during that 
 series of the courts. Bear v. Cohen, 05 N. C. R. 511. 
 
JUDGES, &c— JUDGES OF SOTERIOR COURT. 201 
 
 2. When the Governor requires a Judge to hold a term 
 of a court (either regular or special) for some county outside 
 of his proper District, the authority of the Judge is special : 
 the jurisdiction of the proper Judge of the District is super- 
 seded by that of the substituted Judge in that county during 
 the specified term, but not elsewhere, nor for a longer time ; 
 the substituted Judge has, in respect to all cases pending in 
 the specified county dining the specified term, all the powers 
 of the proper Judge of the District ; he still retains those 
 belonging to him, as a Judge of his own district. Ibid 
 
 3. A Judge of the 6th Judicial District has no power to 
 vacate an order for claim and delivery of personal property, 
 issuing out of a Court of the third Judical District, unless he 
 has been legally assigned to hold the court of the county 
 where the subject matter is pending. Myers v. Hamilton, 
 65 X. C. R 5(17. 
 
 4. A District Court Judge is not authorized to dissolve 
 injunctions, or to punish parties for a contempt iu disobeying 
 an injunction order, except in his own District, unless he has 
 been duly assigued to hold the court in the county where the 
 original process is returnable Morris v. Whitehead, <j5 
 N. 0. R. 637. 
 
 5. When the Judges exchange Circuits, the instant one 
 of them enters the district the courts of which first com- 
 mence, at the same instant the resident Judge of such district 
 becomes Judge of the other, and, in such case it is the duty 
 of the Judge of the district first entered to repair to the other 
 district, so as to reach it at the same time his own is reached 
 by the other Judge. Hoives v. Manny, 06 X. C. R. 2 IS. 
 
 JUDGES OF THE SUPERIOR COURT. 
 
 A Judge of the Superior Court, holding Courts of Oyer 
 and Terminer under commissions from the Governor, is en- 
 titled to reasonable and just compensation, which, being 
 ascertained upon a reference to the Clerk, the Court recom- 
 mends the General Assemblv to allow. Henry v. State of 
 N. (I, C8N.O. R- 465. 
 
292 
 
 JURISDICTION— I. 
 
 JURISDICTION. 
 
 I. 
 
 Of Justices of the Peace in 
 civil cases. 
 
 V. 
 
 II. 
 
 Of Justices of the Peace in 
 
 VI. 
 
 
 criminal matters. 
 
 VII. 
 
 III. 
 
 IV. 
 
 Of the Clerk and Probate Judge. 
 Of the Superior Court in term, 
 or of the Judge. 
 
 VIII. 
 
 Of the Superior Court in 
 
 criminal matters. 
 Of Courts of Equity. 
 Of the Federal Courts. 
 Concurrent jurisdiction of 
 
 courts. 
 
 I. OF JUSTICES IN CIVIL CASES. 
 
 1. The jurisdiction conferred upon Justices of the Peace 
 by the Constitution, Art. IV, sec. 33, extends to all sums of 
 two hundred dollars and under, exclusive of interest Hedge- 
 cock v. Davis, 64 K C. R. 650. 
 
 2. Where questions of constitutional construction are 
 doubtful, Courts will defer to a previous decision thereupon 
 made by the Legislature. Ibid. 
 
 3. Proceedings taken before a Justice of the Peace to 
 recover the possession of real estate where tiie title comes 
 in question are not absolute nullities. Dulin v. Howard, 66 
 N. C R. 433. 
 
 4. The defendant may so treat them, but it does not fol- 
 low that the plaintiff who initiated and took the benefit of 
 them can. Ibid. 
 
 5. When one is deprived of his land under color of judi- 
 cial proceedings heard before such justice, although jurisdic- 
 tion is absolutely withheld from such justice, on general 
 principles the Superior Courts on appeal have a right to 
 award him restitution. Ibid. 
 
 6. Nor was the Superior Court confined, in dispensing 
 the law on appeal, to mere restitution, but could also have 
 allowed, had it been applied for, an inquiry of damages. 
 Ibid. 
 
 7. Under our old system of practice and procedure, a 
 Justice of the Peace had a right to grant a new trial when 
 judgment was rendered against an absent party, if a proper 
 application was made within ten days. Rev. Code, chap. 62, 
 sec. 15. The provisions of that statute have not been ma- 
 terially changed under the new system. C. C. P., sec. 508 
 Froneberger v. Lee, 66 1ST. C. R. 333. 
 
 8. When both parties to an action are present at the 
 trial in a Justice's Court, and the case is heard and judg- 
 ment rendered, a new trial cannot be allowed. The party 
 
JURISDICTION-!.— II. 293 
 
 dissatisfied must appeal to the Superior Court, C. C. P., 
 
 sec. 528. Ibid . n . . ". 
 
 9. A Justice of the Peace has no jurisdiction under the 
 Constitution, art. 4, sec. 15 and 33, of a suit on a constable's 
 bond, the penalty of which is more than $200, although the 
 dama'ges to be assessed are less than that sum, and the Act of 
 lS09-'70, chap. 109, sec. 13, cannot be allowed the effect of 
 conferring such jurisdiction. Fell v. Porter, G9 N. C R. 140. 
 
 10. It seems that as against the officer alone a Justice of the 
 Peace has jurisdiction of a suit for a sum less than $200 
 collected by the plaintiff and not paid over. Ibid. 
 
 11. A party has a right to "split up " his accounts so as 
 to include a certain number ot items under one warrant and 
 a certain number under another, and so on, so as to bring 
 the several warrants under the jurisdiction of a Justice of 
 the Peace. Caldwell v. Beatty, 09 N. C. R. 305. 
 
 12. The question whether a certain account is over the 
 jurisdiction of a Justice of the Peace is a question of law to 
 be decided by the Court, the amount of the account being a 
 question of fact for the jury to decide. Ibid. 
 
 13. The finding of certain facts by a Justice of the Peace, 
 on the trial of an action in which the recovery is tor less than 
 $25, is final, and not the subject of review by the Judge of 
 the Superior Court. Cauble v. Boyden, 09 N. C. R. 434. 
 
 14. The jurisdiction of a Justice of the Peace when neces- 
 sary to be proven, being a question of law, cannot be proved 
 by witnesses (if properly objected to), but must be determin- 
 ed by the Court. Bridgets v. Bridgers, 09 N". C. R 434. 
 
 15. An action for deceit in the sale of a mule — an action 
 ex delicto under the old system — is not within the jurisdiction 
 of a Justice of the Peace, as provided in Art. IV, sec. 33, of 
 the Constitution. Bullinger v. Marshall, 70 N. C. It. 520. 
 
 II. JURISDICTION OF JUSTICES IN CRIMINAL MATTERS. 
 
 1. The act of 18G8-'9, c, 178, sub-c iv., giving to justices 
 of the peace power to hear and determine criminal actions 
 for certain petty offences, and among them, " assaults, and 
 assaults and batteries, where no deadly weapon was used, 
 and no serious damage was done, and where the punishment 
 imposed by law <h>rs not exceed fifty dollars fine, or one 
 month's imprisonment," — is not unconstitutional. State v. 
 Johnson, 64 N. 0. R 581. 
 
 2. As that act confines the jurisdiction of the justice to 
 such offences as are committed within his township, it can- 
 
1294 JURISDICTION— II. 
 
 not be exercised in counties where townships have not been 
 laid off. Ibid. 
 
 3. In such cases, the pleadings must show affirmatively, 
 everything necessary to confer the jurisdiction relied upon 
 therein. Ibid. 
 
 4. Justices of the Peace have not exclusive jurisdiction 
 of the offence of receiving stolen goods under the value of 
 Jive dollars ; but only jurisdiction concurrent, under certain 
 circumstances, with that of the Superior Court. State v. 
 Perry, 64 N. C. R. 598. 
 
 5. On an indictment for an affray, a plea of autre fois 
 convict, before a Justice of the Peace, "in his own proper 
 township, and that no deadly weapon was used, and no bodily 
 injury inflicted," is insufficient, when the complaint does not 
 set forth that the offence was committed in the township of 
 the Justice, or that the complaint was made by the party 
 injured, as expressly required by the Act of 1888-'9, ch. 178, 
 sub-ch. 4 r sees. 6 and 7. State v. Davis, 65 N. C. R. 298. 
 
 6. A Justice of the Peace may have final jurisdiction of 
 that kind of an affray, which consists of the lighting by con- 
 sent of two or more persons in a public place, but not of 
 that kind which is committed by one or more persons making 
 a display of deadly weapons with violent or threatening- 
 words, or by other similar means, calculated to terrify the 
 people In the latter sort of cases, as no one in particular 
 is injured, there is no injured party to complain to the Jus- 
 tice, and he cannot have jurisdiction, except to bind over 
 the party to the Superior Court. Ibid. 
 
 7. In the act ot 1868-'9, ch. 178, sub-ch. 4, sec 6, the 
 provision " that the complaint shall not be made by collusion 
 with the accused," does not apply to the case of a misde- 
 meanor, such as a battery, where there is both a public 
 wrong and a private injury, and the party injured accepts 
 from the aggressor satisfaction for his injury, but to the case 
 where the complaint is not made bona fide, but under terror, 
 or is induced by some fraudulent practice, or is for some 
 fraudulent end. In such latter case the Justice should de- 
 cline the final jurisdiction, and bind the offender over to tne 
 Superior Court. Ibid. 
 
 8. A warrant issued by a Justice of the Peace at the in- 
 stance and upon the oath of a prosecutor, may be taken as 
 the complaint of such prosecutor, but to give final jurisdiction 
 to a justice of the offence therein charged, it must, under the 
 Act of 1868-'!), eh. 178, sub-ch. 4, sec. 6, allege that the com- 
 plaint is not made by collusion with the accused, and without 
 
JURISDICTION— II— III. 295 
 
 such allegation, a conviction under it will not sustain the 
 plea of autre fois convict. State v. Hawes, 65 N. 0. R. 301) 
 
 9. A warrant for an offence within the jurisdiction of a 
 Justice of the Peace, under the Act of 1868-'9, ch. 178, sub- 
 ch. 4, sec. 6, may be issued by a Justice who does not reside 
 in the township where the offence was committed, but it must 
 be returned before, and tried by a Justice who does not reside 
 in such township. Ibid. 
 
 10. Before a Justice of the Peace can have final jurisdic- 
 tion of any criminal offence, it must appear in the complaint 
 and upon proof that each and every requisite prescribed in 
 sub-ch. 4, sec. 6, of chap. 178, of the Act of 18(59, has been 
 strictly pursued. State v. Pendleton, 05 N. C. R. 617. 
 
 11. Observations as to the duty of Solicitors, where par- 
 ties have been bona fide punished before the Justice of the 
 Peace. 1 bid. 
 
 12. The jurisdiction of the Justice of the Peace of the 
 complaint upon the examination whereof the alleged perjury 
 was committed, is sufficiently averred where it is in this case, 
 that the 2. ustice had power to administer the oath. State v. 
 Davis, 65 K C. R. 495. 
 
 13. The Constitution, Art. IV, sec. 33, gives Justices 
 jurisdiction of criminal matters arising in their counties when 
 the punishment cannot exceed a fine of fifty dollars, or impri- 
 sonment for one month. When the Legislature removed this 
 limitation, and left it discretionary with the Court to exceed 
 hat limit it took away the jurisdiction of Justices of the Peace 
 over the offence. State v. Heidllburg, 70 N. O R. 496. 
 
 See (Forcible Entry and Detainer, 8.) 
 [Note. — The Act of 1873-'4, ch. 176, adds to the number 
 of offences cognizable by Justices.] 
 
 III. OF THE CLERK AND PROBATE JUDGE. 
 
 1. The entry of a dissent by the widow, is an incident to 
 the jurisdiction of Probate, and as this jurisdiction has been 
 conferred niton the Clerk of the Superior Court, the widow's 
 dissent is to be made and entered in his office. Ramsour v. 
 liamsour, 64 N. C. R. 231. 
 
 2. Clerks of the Superior Courts have original jurisdiction 
 of all proceedings for the settlement of the estates of deceased 
 persons. Hunt v. S)i<<-</, 64 N. C. R. 176. 
 
 3. That jurisdiction is also exclusive whenever adequate ; 
 e. e. perhaps, in all cases except where a provisional remedy 
 by injunction may be required pending the proceedings before 
 the Clerk. Ibid. 
 
29G JITEISDICTION— III. 
 
 4. Orders for an injunction in such cases must be bad 
 from the Judge, and must be modified or vacated by him j 
 but applications for the orders must be made by motion in 
 original proceedings, and returns upon the Judge's order, 
 must be made to the Clerk. Ibid. 
 
 5. Therefore, an action demanding that an executrix, who> 
 was alleged to be wastiug the estate, should turn it over to a 
 receiver, that the plaintiff should be paid a legacy, &c , which 
 had been brought to term time, was dismissed. Ibid. 
 
 6. The Probate Court has exclusive original jurisdiction 
 of special proceedings for legacies and distributive shares; in 
 such cases, if the construction of a will come in question, or, 
 should exceptions be filed to the account as stated by the 
 Probate Judge, such questions and exceptions, and all other 
 questions of law will be sent up to the Judge; from whose 
 decision, an appeal may be taken. Heileg v. Foard, 64 
 K C E. 710. 
 
 7. The jurisdiction of auditing accounts of executors, 
 administrators and guardians, conferred upon the Judge of 
 Probate by C. C. P,, sees. 418 and 478, is an ex parte juris- 
 diction of examining the accouuts and vouchers of such per- 
 sons, allowing them commissions, &c, as formerly practised; 
 and does not conclude legatees, &c, or affect suits inter par- 
 tes upon the same matters ; which suits, in case of legatees 
 and distributees, (unless brought upon bonds given by admin- 
 istrators, are by special proceedings before the Probate Court; 
 and in case of wards, or if upon administration bonds, are by 
 civil actions brought to term. Ibid. 
 
 8. Practice, in the Probate Courts, in taking the accounts 
 of executors, guardians, &c, stated in detail, and the dis- 
 tinction between issues of fact and questions of fact, applied. 
 Rowland v. Thompson, 04 N. C E. 714. 
 
 9. The summons in special proceedings is returnable be- 
 fore the clerk. Tate v. Lowe, 64 N. C. E. G44. 
 
 10. Any proceeding that under the old mode was com- 
 menced by capias ad respondendum, (including ejectment,) — 
 or by a bill in equity for relief, is a " Civil Action ;" any 
 proceeding that under the old mode might be commenced by 
 petition, or motion upon notice is a " Special Proceeding. 1 * 
 Ibid. 
 
 11. Proceedings for Dower, Partition and Year's Allow- 
 ance, are Special Proceedings. Ibid 
 
 12. Proceedings to obtain damages for injuries to land 
 caused by the erection of mills, are Special Proceedings, and 
 the summons therein should be returned before the clerk- 
 Sumner v. Miller, G4 ST. C E. 688. 
 
JURISDICTION— III. 297 
 
 13. Jurisdiction over cases seeking from administrators 
 additional securities upon their bonds, is vested in the Clerk 
 of the Superior Court, in his character as Probate Judge. 
 Hunt v. Sneed, 64 K C. R. 180. 
 
 14. The Judge of the Court of Probate has jurisdiction 
 of a complaint by a ward against his guardian, demanding 
 an account and payment. From his judgment an appeal 
 will lie to the Judge of the Superior Court, who having thus 
 obtained jurisdiction of the cause will retain it until it is 
 finally disposed of. Rowland v. Thompson, 65 N". C. R. 110. 
 
 15. The Judge of the Court of Probate has no jurisdic- 
 tion of a suit on a guardian bond. Such suit must be 
 bi ought in the Superior Court. Ibid. 
 
 16. Where a suit for the settlement of a guardian account 
 is before the Judge of Probate, his deputy cannot perform 
 any functions in taking an account, but only such as are 
 merely ministerial, such as recording testimony, swearing 
 witnesses, calculating interest and the like. He cannot de- 
 cide upon the competency of testimony, or upon any other 
 legal question, and if he do so the adoption and confirmation 
 of his decision by his principal afterwards will not make it 
 good. Ibid. 
 
 17. A demand for dower is a special proceeding, return- 
 ble before the Clerk. Felton v. Elliott, 66 N. C. R. 105. 
 
 18. Proceedings to effect a settlement of an estate against 
 an executor must be commenced before the Probate Court. 
 But, if iu the course of the proceedings, injunctive relief is 
 desired, application must be made to a Judge of the Superior 
 Court. Sprinkle v. Hutchison, 66 N. C. R. 450. 
 
 19. A petition to make real estate assets, is a special pro- 
 ceeding, and is properly brought before the Judge of Probate. 
 Badger v. Jones, 66 N. C. R. 305. 
 
 20. No Court except that of the Probate Judge, or some 
 Court acting on appeal from him, has jurisdiction to issue 
 execution against the assets of a decedent. Vaughn v. Ste- 
 phenson, 69 N. C R. 212. 
 
 21. An action may be brought in any Court having juris- 
 diction against an administrator, and judgment obtained, but 
 no issue of fully administered can be tried, and a judgment 
 for the plaintiff merely ascertains the debt Ibid. 
 
 22. The proper practice in a proceeding against an ad- 
 ministrator, who at the time was Judge of Probate, seems to 
 be, to make the summons returnable before him, and then, 
 under the provisions of the act of 1871-'72, ch. li)7, transfer 
 the whole proceedings before the District Judge, who wi.l 
 
298 JURISDICTION— III.— IV. 
 
 make the necessary orders in the premises. Wilson v. Ab- 
 rams, 70 N". 0. R. 324. 
 
 23. Courts of Probate have original jurisdiction of special 
 proceedings for the recovery of distributive shares and lega- 
 cies which have not been assented to by the executor. When, 
 however, actions for the same have been brought to regular 
 terms of the Superior Courts, the defect is cured by the act 
 of 1870-'71, ch. 108, (Bat Rev. ch. 57, sees. 425, 426.) Bell 
 v. King, 70 N". 0. R. 330. 
 
 24. The irregularity of bringing a suit against an adminis- 
 trator for the settlement of his intestate's estate, in the Su- 
 perior Court at term time, instead of in the Probate Court, 
 is cured by sees. 425, 420, ch. 17, Bat Rev. Herring v. Out- 
 law, 70 N. C. R. 334. 
 
 25. Section 73, chap. 45, Bat. Rev., gives to Clerks of the 
 Superior Courts jurisdiction of debts against the estate of de- 
 ceased persons. Jenkins v. Carter, 70 N. C. R. 500. 
 
 IV. JURISDICTION OF THE SUPERIOR COURT IN TERM, OR OF THE JUDGE. 
 
 1. The value of a bond or note within the meaning of 
 Rev. Code, c. 31, s. 38, is the principal and interest due on 
 it. Ausley v. Alderman, Phil. L R. 215. 
 
 2. When the value of a note is reduced by endorsed 
 credits to less than $100, an action brought to the County 
 or Superior Court on such note, may be abated on plea of 
 the defendant. Ibid. 
 
 3. Where there is a defect of jurisdiction as to the sub- 
 ject matter of a suit, the court will stay its proceedings in 
 the cause, however the defect may be made to appear. 
 Israel v. Iveij, Phil L. R. 551. 
 
 4. Therefore, where a suit was brought in the County 
 Court upon a contract entered into before the 1st of May 
 ]8G5, and the date of the contract was made to appear by 
 affidavit in the form of a plea to the jurisdiction : held, with- 
 out deciding whether the plea was sufficient in form, that 
 under the ordinance of June 1SG6, the Court should dismiss, 
 upon motion, or suggestion, or ex mero motu. Ibid. 
 
 5 In such case, upon appeal, the Superior Court acquired 
 jurisdiction only so for as to decide whether the judgment 
 of the County Court was erroueous. 1 bid. 
 
 G. The acts and the ordinance which have taken away 
 from the county courts jurisdiction over contracts entered 
 into before May 18G5, nre not on that account unconstitu- 
 tional. State, &c. v. Barringer, Phil. L. R. 554. 
 
JURISDICTION— IV. 299 
 
 7. The order of Gen. Sickles, No. 10, does not restore 
 that jurisdiction as regards minors suing upon guardian bonds, 
 &c. Ibid. 
 
 8. Where a note with two sureties, given before May 
 1805, was discharged by one of theni after that time: held, 
 that the county court had jurisdiction of a suit for contribu- 
 tion, under the ordinance of June 1800, eh. 9. DeBossett v. 
 Bradlei/, 03 N. 0. B. 17. 
 
 9. A court of oyer and terminer held in 1808, by virtue 
 of the Act of 1802, (Feb. 9.) and under a commission from 
 Governor Holdeu to a Judge of the Superior Court, was com- 
 petent to hear and determine cases of crime. State v. Baker, 
 03 N. C. R. 270. 
 
 10. Where a Judge of the Superior Court holds a term, 
 it will be taken, prima facie at least, that he was authorized 
 so to do, and that it was regular. Ibid. 
 
 11. Civil actions by a creditor against an executor or 
 administrator, must be brought to the Court at term. Heilig 
 v. Foard, 04 N. C. B. 710. ' 
 
 12. In such case, if the defendant denies the debt, admit- 
 ting assets, the action is tried in the ordinary way. Hid. 
 
 13. If he deny the debt, and also, that he has assets, the 
 issue as to the debt is tried in the ordinary way, and then, if 
 the debt be established, a reference is to be had, to ascertain 
 the amount of the debts, (and their several classes, in respect 
 to administrations before July 1st, 180!),) and the amount of 
 assets from all sources; upon the coming in of the report, 
 after the exceptions, if any, are disposed of, a final judgment 
 will be entered in favor of all of the creditors respectively who 
 have proved their debts, for such part of the fund as they 
 may be entitled to, and executions will be issued accordingly 
 debonis propriis as formerly upon a claim in equity. Ibid. 
 
 14. A civil action in the nature of a bill in equity to sur- 
 charge and falsify an account stated, must be brought before 
 the -Judge of the Superior Court at the regular term of the 
 court, and not before the Judge of Probate. Murphy v. Har- 
 rison, 05 N. C. R 246 
 
 15. Though the Court of Probate has exclusive original 
 jurisdiction of special proceedings to recover legacies and dis- 
 tributive shares, yet, if the executor has so assented to a 
 pecuniary legacy as to amount to an express or implied 
 promise to pay the legacy, it must be recovered by a suit in 
 the Superior Court. Miller v. Barnes, 65 N. C. E. 07. 
 
 10. After the pleadings are made up, and whilst the trial 
 is progressing, it is irregular to move to dismiss the complaint, 
 
300 JURISDICTION— IV.— V. 
 
 or bill in equity for defects apparent upon the face of the 
 complaiut, or bill in equity, except where there is a manifest 
 defect of jurisdiction in regard to the subject matter, as dis- 
 tinguished from a want of jurisdiction in respect to the per- 
 son, or a statement of defective cause of action, as distinguished 
 from a defective statement of a cause of action. Mastin v. 
 Marlow, 65 N. 0. R 095. 
 
 17. The Superior Courts possess no jurisdiction in actions 
 in which a tort is waived and the sum received for property 
 sold is sought to be recovered, if the amount demanded does 
 not exceed $200. Winslow v. Weith, 66 1ST. O. R. 432. 
 
 18. Our Courts as at present constituted, administer 
 legal rights and equities between the parties, in one and the 
 same action : hence, iu an action for a breach of covenant, it 
 is competent for a defendant to show any equity affecting the 
 measure of damages. Farmer's Bank N. C. v. Glenn and 
 wife, 68 N. C. ft. "55. 
 
 19. Our courts, under our present system, gives relief 
 not merely to the extent and in the cases where it was here- 
 tofore given by the courts of law, but also to the extent, and 
 in the cases where it was heretofore given by the Courts of 
 Equity; thus preserving the principles of both systems, the 
 only change being, that the principles are applied and acted 
 on iu one Court and by one mode of procedure. Lee et al. 
 v. Pearce and wife, 68 1ST. C. R. 76 
 
 20. The Supreme Court has recognized, since the adop- 
 tion of the new Constitution, a Court of Oyer and Terminer, 
 as a Superior Court. And there is nothing in the Code of 
 Civil Procedure which repeals the acts under which Courts 
 of Oyer and Terminer are held. State v Henderson, 68 N. 
 C. R. 348. 
 
 21. The judicial powers of the late county courts are 
 given by the Constitution of 1868, to the Superior Courts, 
 and the administration of the municipal affairs of the coun- 
 ties to the board of county commissioners. Com'rs of For- 
 sythe v. Blackburn, 63 N. C. R 406. 
 
 22. The Superior Courts, in term time, have, under the 
 Act of 1872-'73, chap. 175, jurisdiction of actions by creditors 
 against administrators. Johnston v. Davis, 70 N". C R. 581. 
 
 See (Accounts, 2.) (Constitution, 72, 73, 80 ) 
 
 V. OF THE SUPERIOR COURTS IN CRIMINAL MATTERS. 
 
 The Superior Courts have jurisdiction of all offences except 
 such as have been heard, or are pending, before a Justice, 
 
JURISDICTION— V— VI. 301 
 
 according to the terms of the act of 1868-9, c. 178. State v. 
 Drake, 64 N. 0. R. 580. 
 
 (Xote— The act of 1873-'4, chap. 176, adds to the num- 
 ber of offences cognizable by a Justice ot the Peace.) 
 
 VI. OF COUETS OF EQUITY. 
 
 1. The offices in the courts of law having, in November 
 1S(»5, become vacant by the result of the late war, the Pro- 
 visional Judges, (who by an ordinance of the Convention 
 had power to exercise at chambers all such authorities as by 
 the laws of the State are conferred on Judges at chambers,) 
 were authorized to exercise jurisdiction in cases in which, 
 when the courts of law are open, equity has no jurisdiction. 
 Reynolds v. McKenzie, Phil. Eq. ft. 50. 
 
 2. Being so authorized, neither they nor the courts which 
 succeed them lose jurisdiction of a cause entertained during 
 such vacancy, by the re-instatement of the ordinary tribu- 
 nals in their usual jurisdiction. Ibid. 
 
 3. Courts of equity are not ousted of their jurisdiction 
 in regard to subjects which by statute have been committed 
 to the jurisdiction of courts of law, unless there be in such 
 statute express language or clear intendment therefor. Oli- 
 veira v. University, Phil. Eq. R. 69. 
 
 4. One who claims in his own right a thing that is in the 
 hands of his co-executor, who claims it as belonging to their 
 testator, being a tenant in common of the property with 
 such co-executor, has his remedy in equity and not at law. 
 Harrington v. McLean, Phil. Eq. R 258. 
 
 5. One effect of the doing away with execution by ca. sa. 
 is to originate a jurisdiction in equity to compel the applica- 
 tion of legal choses in action to the satisfaction of debts. As 
 preliminary to its exercise in any case the court will require: 
 1st, That the debt shall be established by a judgment at 
 law, and 2nd, That the want of property subject to a fi. fa, 
 shall be shown by a return of nulla bona, or by other suffi- 
 cient proof. Hook, Skinner & Co. v. Fentress, Phil. Eq. R.229. 
 
 6. Whether in exercising this jurisdiction other creditors 
 will be allowed to come in and make themselves parties and 
 take a share of the fund, qucere. Ibid. 
 
 7. A court of equity below has exclusive jurisdiction of a 
 bill to impeach a decree ot the Supreme Court for fraud and 
 surprise ; and such bill may be filed without the leave of the 
 Supreme Court. Kincaid v. Conly, Phil. Eq. R. 270. 
 
 8. A bill having been filed in 1864 against Executors to 
 
302 J URISDICTION— VI. 
 
 obtain a construction of a clause in a will, but containing 
 the necessary prayer for an account and settlement, in the 
 Supreme Court, (to which the cause had been transferred) a 
 reference was ordered and a report made at December Term 
 18(34, without notice to the defendants and after the death 
 of their counsel, and thereupon a decree was made against 
 the defendants for the amount in their hands, which inclu- 
 ded a large sum of Confederate money : held, a proper case- 
 for an injunction, upon a bill to impeach the decree. Ibid. 
 
 9. Relief administered in equity mast be limited to that 
 sought by the frame of the bill. Latham v. Skinner, Phil. 
 Eq. R. 292. 
 
 10. Courts of equity will not relieve a party unless his. 
 proofs support his allegations, and the latter state a case 
 entitled to relief. May v. Hanks, Phil Eq. R. 310 
 
 11. Since the act abolishing imprisonment for debt, 
 courts of equity have jurisdiction of suits by judgment credi- 
 tors to subject their debtors' legal choses in action, after a 
 return of nulla bona. Powell v. Howell, 63 IS". 0. R. 283. 
 
 12. A bill in equity asking that a deed should be surren- 
 dered by the defendant, and he be enjoined from committing 
 certain trespasses upon the land including therein, upon the 
 ground that such deed had never been delivered, canuot be 
 maintained; the plaintiff has an adequate remedy at law, 
 either by deutinue or trespass quare clausum. Boyland v* 
 Currin, 64 N. C. R. 355. 
 
 13. The principle upon which equity interferes to set aside 
 verdicts, &c, in courts of law, and also former decrees in 
 courts of equity, for surprise, &c, stated. Kincade v. Conley, 
 64 IS". C R. 387. 
 
 14. That the details of the decree impeached are shown, 
 upon a second hearing of the original cause, to have been 
 correct, is not a result in conflict with the decree impeaching 
 it. Ibid. 
 
 15. Where a seal was attached by mistake and ignorance 
 to the name of a firm signed to a note given for value, the 
 mistake was corrected in equity, and the plaintiff was allow- 
 ed to recover as if there had been no seal. Lyman v. Cali- 
 fer, 64 N. C. R. 572. 
 
 16. That the plaintiffs in equity were not served with 
 process, in a petition at law by the defendants against them, 
 is ground for a proceeding in such petition, to have relief, but 
 none for a bill in equity. Finger v. Finger, 64 N. C. R. 183. 
 
 17. Where a Physician had an account running through 
 a period of many years against A for medical service ren- 
 
JURISDICTION— VI. 303 
 
 dered, whilst the latter had an account against the Physi- 
 cian for agricultural products furnished him at various limes, 
 and these transactions had no business connections with each 
 other, but were entirely independent, and mere matters of 
 set-off: held, that a bill in equity could no t be sustained for 
 an account and settlement of the demands existing between 
 the parties. Haywood v. Butchins, 05 N. C. Li 574. 
 
 18. Where one, who stands in the position of a quasi 
 mortgagee of land, sells the same to a purchaser with notice 
 ot the equity ot the quasi mortgagor, such purchaser takes 
 subject to such equity. Ghormty v. Skerrill, 66 N. C R. 527. 
 
 19. Where one T handed to B certain papers which would 
 enable the holder to procure certain tracts of land, receiving 
 from B certain depreciated currency with the understanding 
 that he should take out the grants in his own name, and 
 whenever T paid him $750 91 in greenbacks B should convey 
 to T ; and B took out the grants in his own name and sold 
 and conveyed certain of the tracts to G with notice of his 
 trust to T : held, that T had an equity of redemption, and 
 that the purchase money paid by G to B should be regarded 
 as paid by T to B in redemption : held farther, that a pur- 
 chaser of the land from T before any of those transactions, 
 is entitled to take the place of T and succeeds to his equita- 
 ble rights. Ibid. 
 
 20. The power to appoint a receiver is necessarily inherent 
 in a court which possesses equitable jurisdiction, and it is 
 exercised when an estate or fund is in existence, and there 
 is no competent person to hold it, or the person so entitled 
 is in the nature of a trustee, and is misusing or misapplying 
 the property. The Code of Civil Procedure does not mate- 
 rially change the equitable jurisdiction of our courts on the 
 subject. — C. C. P., sec. 215. Skinner v. Maxwell, b'G N. C. 
 R 45. 
 
 21. On the principle of protection, a receiver may be 
 appointed of an infant's estate if it be not vested in a trustee ; 
 and when there is a mixture of property and the different 
 interests of the parties cannot be ascertained until proper 
 invoices are made, and a division effected under the direction 
 of the courts (Adams' Eq. 352-'53. — 1 Parsons on Con- 
 tract.) Ihid. 
 
 22. A court of equity has the power to appoint a receiver 
 for the purpose of securing and protecting property, which 
 is the subject of litigation. He is an officer of the court, 
 and bis possession of the property is the possession of the 
 court. He holds such property as a custodian, until the 
 
304 J UEIsDICTION— VI— VII. 
 
 rightful claimant is ascertained by the court, and then for 
 for such elaimant. Battle v. Davis, 60 N. 0. E. 252. 
 
 23. A receiver cannot commence any action for the re- 
 covery of property without an order of the Court, and when 
 such order is made, the action must be brought in the name 
 of the legal owner, and he will be compelled to allow the use 
 of his name upon being properly indemnified out of the estate 
 and effects under the control of the Court. Ibid. 
 
 24. The power of a receiver to bring an action is regula- 
 ted by the rules of a Court of Chancery. An order to sue in 
 his own name cannot be given by our Courts, and the United 
 States Courts cannot confer upon him greater powers or pri- 
 vileges as a suitor in the State Courts. Ibid. 
 
 25. A Court of Equity never regards a seal, and since law 
 and equity is now administered in the same Court, a seal has 
 lost much of its ancient dignity. Bryan v. Foy, 69 1ST. C. E. 45. 
 
 26. The jurisdiction conferred on our former Courts of 
 Equity by the ordinance of the 23d of June, 1866, in favor of 
 creditors following assets into the hands of fraudulent alienees, 
 is concurrent with that given to Courts of law by ch. 46, sees. 
 44, et seq. of the Eev. Code. Humphrey v. Wade, 70 N. L. 
 E. 289. 
 
 27. Statutes which merely give affirmative by jurisdiction 
 to one Court do not oust that previously existing in another 
 Court. 
 
 See (Sales — Judicial sales passim.) (Trusts and Trustees 
 passim ) 
 
 VII. JURISDICTION OF THE FEDERAL COURT. 
 
 The Circuit Courts of the United States have not juris- 
 diction of a case either at law or in equity, in which a State 
 is plaintiff againt its own citizens. The Constitution of the 
 United States does not confer such jurisdiction, nor is it con- 
 ferred by auy act of Congress. Such jurisdiction is not con- 
 ferred upon the Circuit Court in this case by the bankruptcy 
 act of 1867, because there are other necessary parties than 
 the assignee in bankruptcy, and without such parties the 
 plaintiff could not sustain his suit in any court. The State 
 of North Carolina v. The Trustees of the University, 65 N". 
 C. E. 714. 
 
 See (Bankruptcy, 7, 8, 9.) 
 
JURISDICTION— VIIL— JURY— I. 305 
 
 VIII. CONCURRENT JURISDICTION OF COUETS. 
 
 1. "Where two or more courts have equal and concurrent 
 jurisdiction of a case, that court in which suit is first brought 
 acquires jurisdiction of it, which excludes the jurisdiction of 
 the other courts. Ohihls v. Martin, 09 N. 0. R. 126. 
 
 2. The persons who allege that the judgment had been 
 obtained in the first action by a fraudulent combination and 
 contrivance, instead of bringing a second action, in another 
 court, ought to have made themselves parties to the first 
 action and to have asked as u a motion in the cause" to have 
 the judgment reheard, and in the meantime for a superse- 
 dias, «x:c. Ibid. 
 
 I. Of challenges to the jury. 
 II. Of the pay of jury. 
 
 JURY. 
 
 III. Of the grand jury. 
 
 I. OF CHALLENGES TO THE JUEY. 
 
 1 . A special venire having been summoned for the trial 
 of a prisoner, upon a day previous to the day of trial: held, 
 that a successful challenge by the prisoner to the array of the 
 original pauel, did not necessarily affect the competency of 
 the special venire to act as jurors in the case. State v. Owen, 
 Phil. L. R. 425. 
 
 2. In the course of selecting a jury for the trial of a capi- 
 tal crime, two persons who had been called and challenged 
 by the prisoner for cause and confessed such cause, in reply 
 to further questions upon the same point by the Court, made 
 disrespectful answers : held, to have been proper for the Court 
 so rebuke such persons pointedly, and that no rights of the pri- 
 toner were infringed thereby. State v. Hicks, Phil. L. R. 441. 
 
 3. It is no ground of exception that a special venire was 
 selected from the freeholders of the county without regard to 
 color, no reference having been had to the jury list constitu- 
 ted by the County Court. Ibid. 
 
 4. In a case where the list of registered voters of a county 
 was in the hands of the military authorities, and the proper 
 civil officers for drawing a jury were unable to procure a copy 
 of such list : held, that the order of September 13, 18G7, re- 
 quiiing jurors to be registered voters, did not apply. State 
 v. Holmes, 63 X. C. R. 18. 
 
 o. Where a prisoner had already accepted as jurors three 
 20 
 
306 JURY— I. 
 
 colored persons : held, that he bad no right to challenge a 
 fourth juror when tendered, on the ground that he was a col- 
 ored person. Ibid. 
 
 6. A special venire summoned previous to the day of trial 
 cannot he successfully challenged because the original panel 
 was set aside upon a challenge to the array. State v. Me- 
 Curry, 63 N. 0. R. 33. 
 
 7. Objection to the manner of summoning the grand jury, 
 can only be taken before trial; and such objection to the petit 
 jury or special venire, by challenging the array. State v. 
 Douglas, 63 N. 0. R. 500. 
 
 8. It is permitted to the presiding Judge to order a spe- 
 cial venire only for the trial of persons charged with capital 
 offences, and therefore a refusal to make such an order upon 
 a trial for arson is correct. State v. Bullock, 63 N. 0. R. 570. 
 
 9. A juror who is a non-resident of the county in which 
 the trial is had, is liable to be challenged therefor. Ibid. 
 
 10. A colored person upon trial for crime, has a right to 
 object to any one's sitting in his case as a juror, who " be- 
 lieves that he cannot do impartial justice between the State 
 and a colored person 11 ; therefore, where the Court refused to 
 allow a preliminary question to that effect, to be asked : held, 
 to be error. State v. McAfee, 64 N. 0. R. 33 >. 
 
 11. A challenge to a juror must be made in u apt time," 
 and before the jury are empanelled. If, after a jury have 
 been empannelled and charged, exception is made, it is not 
 in "apt time" After verdict it is a matter of discretion 
 for the judge, whether, under such circumstances, he will 
 grant a new trial. State v. Perkins, 66 N. 0. R. 126. 
 
 12. In an indictment for a misdemeanor, a defendant has 
 a right to challenge a juror for cause, and this right is not 
 confined to capital cases. State v. Fulton, 66 N. O. R. 632. 
 
 13. Where a defendant proposes to challenge a juror tor 
 cause — and the judge announces generally that such chal- 
 lenges are '' unusual," except in capital cases — it is not nec- 
 essary that the defendant should name the particular juror, 
 nor assign a special cause. Ildd. 
 
 14. The supposed analogy between a cause of challenge 
 and an exception to evidence does not exist. Ibid. 
 
 15. After jurors are sworn, but before they are empan- 
 nelled, it is competent for the court to allow a challenge for 
 cause. State v. Adair, 66 N. 0. R. 298. 
 
 10. The fact that a juror is not a resident of the county 
 in which the indictment is tried, is a good ground of chal- 
 lenge, but not for a new trial after a verdict is rendered. 
 State v. White, 68 H". C R. 158. 
 
JURY-I.-II -III —LANDLORD AND TENANT. 307 
 
 17. It is no good cause of challenge that the juror has 
 formed and expressed au opinion adverse to the prisoner, 
 such opinion being founded on rumor--aud the juror further 
 stating that he could try the case according to the law and 
 evidence, uninfluenced by any opinion he may have so formed 
 from such rumor. State v. Collins, 70 N. 0. R 241. 
 
 18. The fact of a juror's beiug first cousin to the priso- 
 ner, is no good cause of challenge by the prisoner, unless it 
 be shown that ill feeling or bad blood exists between the 
 juror and the prisoner. State v. Ketchey, 70 N. 0. R. G21. 
 
 n. OF THE PAY OF JURORS. 
 
 One summoned as a juror on a coroner's inquest, is not 
 entitled to any compensation. Green v. Wynne, GO N. 0. R. 
 530. 
 
 III. OF THE GRAND JURY. 
 
 A Judge of the Superior Court has no right to require a 
 grand jury to have the witnesses on the part of the State 
 examined publicly. State v. Branch, 08 N. 0. R. 180. 
 
 LANDLORD AND TENANT. 
 
 1. An agreement by him who cultivates land that the 
 owner who advances "guano, seed-wheat," &c, shall out of 
 the crop be repaid in wheat for such advancements, consti- 
 tutes the former a cropper and not a tenant. State v. Bur- 
 n-ill, 63 N. 0. R. 661. 
 
 2. The crude turpentine which has formed on the body 
 of the tree, and is called " scrape," is personal property, and 
 belongs to the lessee of the trees, who lias the right of ingress 
 and egress to take it away after his lease has expired, pro- 
 vided that he does so in a reasonable time, which must be 
 before the sap begins to flow in the subsequent Spring of the 
 year. Lewis v. McNatt, 05 N. 0. R. 03. 
 
 3. The principle that a tenant cannot dispute his land- 
 lord's title is in full force, but a tenant was never prevented 
 from showing an equitable title in himself, or any facts which 
 would make it inequitable to use his legal estate to deprive 
 him of the possession. Turner v. Lowe, 00 N. 0. 11. 413. 
 
 4. For this purpose, formerly, the tenant was driven into 
 equity, but under the present system, the tenant in such 
 
308 LANDLORD AND TENANT. 
 
 cases can avail himself of such equitable defence by bis 
 answer. Ibid. 
 
 5. If such a defence cannot be set up in a Superior Court, 
 it cannot be anywhere, as we have no separate Courts of 
 Equity. Ibid. 
 
 6. When the makers of a note, given for the rent of land, 
 set up as a defence to the action, that the payees in said note 
 had no title to the land and no right to lease the same, and 
 it was replied, that the guardian of the real owners of the 
 land had, since the lease was given, ratified the same by 
 receiving payment, and had entered a retraxit in a suit 
 brought against one of the occupants under the lease : held, 
 that such replication was sufficient to defeat the defence re- 
 lied ou. McKesson v. Jones, 66 N. C. R. 258. 
 
 7. The mere fact that there is a paramount title outstand- 
 ing, or a claim set up against the tenant by the true owner, 
 will not authorize him to dispute the title of his landlord. 
 He must have been compelled to make some payment to 
 the true owner, to avoid au eviction, and such payment is 
 regarded as a payment to the landlord, and to be deducted 
 from the rent. Ibid. 
 
 8. Whatever may have been the rule under the former 
 practice, under the provisions of the 0. C. P., a landlord let 
 in to defend in a civil action for the recovery of land, is not 
 restricted to the defences to which his tenant is confined, nor 
 is this principle varied by the circumstances that the plaintiff 
 is purchaser at execution sale against such tenant, and that 
 the latter was in possession at the date of the sale and of the 
 commencement of the action. Isler v. Foy, 6(5 N. C. R. 546. 
 
 9. A bargainor in a deed in trust, containing a stipulation, 
 for the retention of the possession of the land conveyed, until 
 sold under the terms of the trust, who holds possession after 
 a sale of the premises by a trustee is not such a tenant as 
 comes within the purview of the landlord and tenant act (acts 
 of 1868-69, chap. 156,) and hence proceedings cannot be 
 taken under that act to evict him. McCombs v. Wallace, (5(S 
 N. C. R. 587. 
 
 10. The act was only intended to apply to a cause in 
 which the tenant entered into possession under some contract 
 of lease, either actual or implied with the supposed landlord 
 or with some person whom the landlord claimed in privity or 
 where the tenant himself in privity with some person who 
 had so entered. Hid. 
 
 11. This construction excludes from the operation of the 
 act, two classes, viz : vendees in possession under a contract 
 
LANDLORD, &c— LARCENY. 309 
 
 for title and vendors retaining possession after a sale, though 
 such persons are certainly tenants at will or sufferance for 
 some purposes and frequently so styled. Ibid. 
 See (Constitution, GO, 61.) (Bankruptcy, 8.) 
 
 LARCENY. 
 
 1. A took a bucket of peas to market and having occasion to 
 go some distance to enquire the price of peas, set the bucket 
 down in a cart which he mistook for that of a friend ; the 
 owner of the cart returning to it placed the bucket upon the 
 around, and afterwards being about to leave the market, 
 raised it up and asked, " Whose are they ?" whereupon B, 
 a retailer of vegetables, came up and placed his hand upon 
 the bucket, and then took it, the owner of the cart yieldiug 
 it and saying, "You must give it up to the owner when he 
 comes and calls for it ;" afterward A found B with the bucket, 
 beets aud lettuce having been placed upon the peas, and B 
 manifested insolence and unwillingness to surrender it: held, 
 that there was evidence from which a jury might infer every 
 ingredient of larceny. State v. Farrow, Phil. L. R. 161. 
 
 2. Petit larceny might at common law be punished by 
 imprisonment. State v. Kearsey, Phil. L. R. 481. 
 
 3. The Act of 18G6-'G7, ch. 82 (25th February 18G7) 
 which punishes the stealing of mules, &c, with death, did 
 not repeal the law prohibiting that crime previously, except 
 as to offences thereafter committed ; therefore where one was. 
 convicted at Fall Term 18G7 of stealing a mule, under an 
 indictment found in December 18GG : held, that the question 
 of punishment was not affected by the Act first mentioned. 
 State v. Putney, Phil. L. R. 543. 
 
 4. An indictment for larceny which describes the thing 
 stolen as " oue promissory note issued by the Treasury de- 
 partment of the government of the United States for the 
 payment of one dollar," is in that respect sufficient. State 
 v. Fulford, Phil. L. R. 5G3. 
 
 5. Where there is no contradiction between two witnesses 
 in a trial for larceny, the court may so instruct the jury. 
 State v. Iloraii, Phil. L. K. 591. 
 
 G. The court may instruct the jury as to the effect of 
 certain testimony if believed. Ibid. 
 
 7. A verdict finding the defendant "guilty of receiving 
 stolen <foods, knowing them to hare been stolen? is sufficient,, 
 without specifying such goods. I bid. 
 
310 LAEOENY. 
 
 8. A person may be indicted under Rev. Code, ch. 34, 
 sec. 20, for stealing a National Bank note. State v. Banks, 
 Phil. L. E. 577. 
 
 9. If a servant entrusted with the custody of goods by 
 his master, fraudulently take them to convert them to his 
 own use, he is guilty of larceny. State v. Jarvis, 63 N. 0. 
 E. 556. 
 
 10 . Justices of the Peace have no jurisdiction of larceny. 
 This offence remains under the cognizance of the Superior 
 Courts. 1 hid. 
 
 11. An indictment for stealing "fifty pounds of flour, of 
 the value of sixpence," is good ; and is sustained by proof 
 that the party charged, stole a sack of flour, although there 
 was no proof of its weight, or of its value, further than that 
 the defendant had said that he gave five and a half dollars 
 for it. State v. Harris, 64 N. C. E. 1'27. 
 
 12. From the rule, that indictments upon statutes it is safe 
 to use the very words of the statute, are to be excepted cases 
 in which a statute (in enumerating offences, charging intent, 
 <£e.,) uses the adjective or : In some such cases and is to be 
 substituted for or: in others, doubts as to the proper terms 
 are to be met by using several counts; and or is never used, 
 unless in the statute it means to wit, or is surplusage : there- 
 fote, an indictment for larceny, which charges the thing 
 taken, to be the property ot J. E. D., '' and another or oth- 
 ers," (in the words of the Eev. Code, chap. 35, sec. 19,) is 
 fatally defective, and no judgment can be given thereupon. 
 State v. Harper, 64 N. C. E. 129. 
 
 13 One who borrows a horse with an intention, existing 
 at the time, of stealing him, is guilty of larceny; and no 
 change of mind after such taking will purge the offence. 
 State v. Scott, 64 N. C. E. 586. 
 
 14. A nugget of gold separated from the vein by natural 
 causes, savers of the realty, and, so, is not a subject of lar- 
 ceny. State v. Burt, 64 N. C. E. 619. 
 
 15. Here, the nugget was found upon a loose pile of 
 rocks, and was taken and carried away at one continued act 
 J hid. 
 
 16. Where, in an indictment for larceny, it was charged that 
 the article stolen was the property of II. Hoffa, whose given 
 name was to the jurors unknown, and it was testified by wit- 
 nesses that they knew of no other name of the owner of the, 
 article than H. Hoffa, it was held, that there was no variance 
 between the allegation and the proof. State v. Bell x 65 
 K C. E. 313. 
 
LARCENY. 311 
 
 17. The owner of an article charged to have been stolen, 
 may have a name by reputation, and if it be proved that he 
 is as well known by that name as any other, a charge in 
 an indictment by that name will be sufficient. Ibid. 
 
 18. If a person usually signs his name with only the ini- 
 tials of his christian name, and he is thus generality known 
 and designated, he mav be properly indicted by such name. 
 Ibid. 
 
 19. Upon a conviction for larceny, a sentence " that the 
 defendant be imprisoned in the State prison for one year, and 
 in the meantime and until he is carried there, that he be im- 
 prisoned in the county jail," is sufficiently definite as to the 
 term of imprisonment in the State prison to be valid under 
 the Act of 1808-'9, cb. 166, sees. 9 and 10, which declares 
 that the term " shall begin to run upon and include the day 
 of conviction." State v. Gasldns, 65 N. 0. R. 320. 
 
 20. A change in the punishment of larceny from whipping 
 and imprisonment at common law to imprisonment in the 
 State's prison or county jail for not less than four mouths nor 
 more than ten years, is not liable to the objection of an ex 
 post facto law. The rule is, not that the punishment cannot 
 be changed, but that it caunot be aggravated. State v. Kent, 
 65 N. G. R. 311. 
 
 21. The turning of a barrel of turpentine which was stand- 
 ing on its head, over on its side, with a felonious intent, is 
 not such an asportation as constitutes larceny. State v. Jones, 
 65 N. 0. R. 395. 
 
 22. Where a prosecutor, being drunk and partially para- 
 lized, and having a belt with money around his body, was sit- 
 ting with his head beut down, and alone with the defendant 
 in his bar-room, the latter gently removed the belt and money 
 from the prosecutor's body, upon which the prosecutor, rais- 
 ing his head and seeing the belt in his hand, asked him to 
 give back his money, to which he replied, " no, I'll keep it," 
 and afterwards, upon the prosecutor's stepping out for a mo- 
 ment, the defendant refused to let him come in again, and 
 never returned his belt or money, it was held, that these facts 
 tended to prove a larceny of the belt and money by the defen- 
 dant. State v. Jackson, 65 N. C. R. 305. 
 
 23. It is a sufficient carrying away to constitute 1 , the crime 
 of larceny, that the goods are removed from the place where 
 they were, and the thief has, for an instant, the entire and 
 absolute possession of them. Ibid. 
 
 24. An otter is an animal valuable for its fur, and though 
 it be one ferir naturw, yet, if it be reclaimed, confined or 
 
312 LAECENY. 
 
 dead, the stealing it from its owner is larceny. State v. House,, 
 65 K C. E. 315. 
 
 25. A person employed as a " field band," working by the 
 day, week or month, has no charge of his employer's money, 
 and if the latter entrust him with money and he embezzles 
 it he is not guilty of larceny. State v. Burin, 65 N. C E. 317. 
 
 26. An indictment at common law for larceny in stealing 
 a cow, is not supported by proof that the cow was shot down 
 and her ears cut off by the defendants. Such acts would 
 have supported an indictment tor malicious mischief, or an 
 indictment under the act of 1866, ch. 57, for injuring live 
 stock with intent to steal them. State v. Butler, 65 N. 0. 
 E. 309. 
 
 27. A person found in possession of goods recently stolen, 
 is presumed in the law to be the thief ; and it is not neces- 
 sary for the State to show that any other suspicious circum- 
 stance accompanied such possession. State v. Turner, 65 
 N. 0. E. 592. 
 
 28. The defendant may rebut this presumption ; but if he 
 does not show that he received the goods honestly, it is the 
 duty of a jury to couvict him. IMd. 
 
 29. The defendant is entitled to an acquittal, when the 
 indictment charges the stealing of a steer, whilst the evidence 
 shows it was a bull. State v. Royster, 65 N. 0. E. 539. 
 
 30. The turkey is a domestic animal ; therefore, when a 
 bill of indictment charges that "A B, one turkey of value of 
 six pence, of the goods and chattels of D, feloniously did 
 steal, take, and carry away :" held, that such an indictment 
 is sufficient in law. State v. Turner, 66 N. 0. E. 618. 
 
 31. Distinction between stealing domestic animals and 
 animals ferce naturae stated by Boyden, J. Ibid. 
 
 32. If one, by trick or contrivance, gets possession of the 
 goods of another, and the act be done in such a way as to 
 show a felonious intention to evade the law, he is guilty of 
 larceny, as where, in addition to other instances, stared in 
 State v. Deal, 64 N. C. E., one snatches money from the 
 hands of a man, and immediately escapes to evade the pro- 
 cess of law. State v. Henderson, 66 N. 0. E. 627. 
 
 33. To constitute larceny, the felonious taking must be 
 done fraudulently and secretly, so as not only to deprive the 
 owner of his property but also to leave him without knowl- 
 edge of the taker. State v. Bedford, 67 N. 0. R. 60. 
 
 34. In an indictment for larceny, the property stolen was 
 charged as "the goods and chattels of S. L. Williams," and 
 it appeared on the trial that it belonged to Samuel L. Wil- 
 
LARCENY.— LEGACY— I. 
 
 313 
 
 liams : held, that if the objection had been taken on the trial, 
 it would have been a question for the jury whether S. L. and 
 Samuel L. were one and the same person : held further, that 
 the defendants were concluded by the verdict, which found 
 them " guilty as charged in the indictment. State v. McMil- 
 lan, 68 N. C. R. 440. 
 
 35. Where an indictment charged the larceny of a horse 
 to have been committed at a certain time since the passage 
 of the statute which prescribed the punishment of such a 
 larceny, and the defendant was found guilty, judgment can- 
 not be arrested upon the ground that prior to that time 
 there had beeu several statutes prescribing different modes, 
 of punishment. State v. Evans, 69 N. C. 11. 40. 
 
 30. Larceny may be committed in a crowd or in the pub- 
 lic streets ; and where the defendant obtained possession of 
 a hog from a stranger, claiming it as his own, and carried the 
 hog home, altered the mark and put it in the pen with his. 
 other hogs : held, it to be no error in the Judge below, to leave 
 it to the jury to say whether the taking was done for the 
 purpose of depriving the real owner of his property, and con- 
 verting the same to his own use or not ; and if so, the defen- 
 dant was guilty. State v. Fisher, 70 N. C. R. 78. 
 
 See (Indictment — Form and matters relating thereto, 3, 4,. 
 9, 10, 30, 45.) 
 
 I. 
 
 ii. 
 
 in. 
 
 LEGACY. 
 
 Construction as to what possess 
 
 IV. 
 
 ami who takes. 
 
 
 Specific or general and of the 
 
 V. 
 
 abatement of legacies. 
 
 VI. 
 
 Whether vested, contingent or 
 
 VII. 
 
 executory. 
 
 VIII. 
 
 When a charge upon a real es- 
 tate. 
 
 Of debts charged upon lands. 
 
 Bequest of the residue. 
 
 Lapsed and void legacies. 
 
 Of the assent of the executor 
 and its etlect. 
 
 I. CONSTRUCTION AS TO WHAT POSSESS AND WHO TAKES. 
 
 1. A testator provided as follows : " I lend unto my be- 
 loved wife, Mary C; . Sawyer, all of my real and personal estate, 
 to have and to hold the same during her natural life, and at 
 her death I give the same to be equally divided between the 
 heirs of my beloved wife, Mary Or. Sawyer, and my heirs at 
 law." Held upon the death of the wife, that: The rule of 
 distribution per stirpes governs as well the division between 
 
•314 LEGACY— I. 
 
 the " heirs" of the wife, and " heirs at law " of the testator, 
 as that of the portion given to the latter class, among them- 
 selves. Technical words, in the absence of explanation upon 
 the face of a will, will be taken in a technical sense. A word 
 repeated in the same clause of a will must, at each repetition, 
 .have the same meaning attached to it. Where a direction is 
 given for the equal division of a fund among several named 
 persons, and "the heirs" of another person, and it appears 
 that by u heirs " is meant children, such division must be per 
 capita: but, when the word "heirs" must include not only 
 children, but grand-children, &c, then the division must be 
 per stirpes. Grand)/ v. Sawyer, Phil. Eq. R. 8. 
 
 2. Where a testator used the following expressions : "I 
 give and bequeath unto my wife Sarah, all of the property that 
 I possess at the time of my death, consisting of all my real 
 estate of all kinds, and all my money, notes and accounts, af- 
 ter paying all my just debts :" " My father and mother are 
 to have the land, lying on the south-east side of the Reedy 
 Branch, of the tract where they now live, and the stock, 
 household and kitchen furniture at that place," and mention- 
 ed no other things in his will, although he died in possession 
 of fifteen or more slaves, and of horses, cattle, crops, &c: 
 held, that the wife was constituted universal legatee, except as 
 to what was expressly given to the father and mother. Bun- 
 ting v. Harris, Phil. Eq R. 11. 
 
 3. By Pearson, 0. J., arguendo; The words used in dif- 
 ferent wills are so different, aucl the circumstauces of testa- 
 tors in regard to property and the objects of bounty are so 
 various, that it is almost impossible to find one case upon 
 such subjects that ought to govern another. In doubtful 
 questions of construction something must be yielded to the 
 contemporaneous action of the parties concerned. Ibid 
 
 4 Where a testator having devised certain property to 
 his wife, ordered that after her death, the remainder should 
 " be divided amongst our next of kin," and died leaving no 
 persons who were next of kin of both : held, that the prop- 
 erty should be divided into two equal parts and given, one 
 to the next of kin of the testator, the other to the next of 
 kin of the wife. Cooper v. Cannon, Phil. Eq. R 83. 
 
 5. Where a testator recommended one to the humanity 
 of his executors, and added that he left in their hands the 
 interest on a certaiu fund for the support so recommended 
 during his life, and upon his death the surplus, if any, to go 
 over to another: held, that the clause was imperative, and 
 gave to such person a right to support under it. Chambers 
 v. Davis, Phil. Eq. R. 152. 
 
LEGACY— I 315 
 
 6. When it appears, from other parts of a will, that the 
 testator understood the distinction between ''children," and 
 issue more remote, grand-children and great-grand-children, 
 cannot be included in a division directed to be made among 
 children. Boylan v. Boylan, Phil. Eq. R. 160. 
 
 7. Where a man of large estate, who died in 18G4, with- 
 out children, bequeathed to his sister-in-law a legacy of 
 $1,000, held, that the legatee was entitled to payment in 
 lawtul currencj' of the United States ; notwithstanding that 
 the testator had on hand at his death Confederates notes suf- 
 ficient to pay that, and other pecuniary legacies. Barham 
 v. Gregory, Phil. Eq. II. 243. 
 
 8 The following item in a will, "I give and bequeath to 
 nephew, E. P. H , all my land, &c; and the following ne- 
 groes, Bill, &c, and their increase, to take them into pos- 
 session and have the use of them after my decease, but not 
 to be at his disposal, but for the use of his children, heirs of 
 his own body, and no others whatever," held, to confine the 
 trust for the children to the slaves, and to confer upon E. P. 
 H., an absolute estate in the land. Especially as E. P. H. 
 was already in possession of the land befoie the testator's 
 death. Hall v. Gillespie, Phil. Eq E. 250. 
 
 9. Under a clause of a will giving property to " the heirs 
 and legal representatives of my deceased sister," &c., (fol- 
 lowed by clauses giving respectively the children of a deceas- 
 brother, " an equal share." and the son of a nephew a "share,") 
 the legatees are the children of the deceased sister, and take 
 per stirpes. Harper v. Sudderth, Phil. Eq. R. 279. 
 
 10. A devise of land to A for life, and then to be sold and 
 the money arising therefrom equally divided between the 
 then surviving children of A," — creates such au interest in 
 the cbildren as vests only at the death of A : therefore, a 
 conveyance thereof made during A's lifetime by the husbands 
 of two of the children who in the event survived, passed 
 nothing, and their wives at the death of A, were entitled to 
 take the land specifically, or to have it sold, as they might 
 elect. Grissom v. Pamsh, Phil. Eq. K, 330. 
 
 1 1 . Where a testator gave land and slaves to his daughter, 
 Nancy Waller, for lite, and then "to be equally divided be- 
 tween the children of the said Nancy Waller and my sons 
 William and John:" held, that at the death of Nancy the 
 property was to be divided per capita between William, John 
 and the children of Nancv. Waller v. Forsythe, Phil. Eq. li. 
 353. 
 
316 LEGACY— L 
 
 12. " Next of kin," in a will, means nearest of kin. Red- 
 mond v. Burroughs, 63 ET. 0. E. 242. 
 
 13. A testator bequeathed to a certain boy $2,000, to be 
 put at interest for the purpose of educating him ; and having 
 survived the making of his will twelve years, the boy (who 
 in the interval had received little or no education) at his 
 death was a married man of about twenty-four years of age : 
 held, that the legatee was entitled to the legacy, and that the 
 fact, that during his boyhood he refused to go to school, made 
 no difference. 1 bid. 
 
 14. A legacy of $100 to A B, " to pay her debts, and for 
 her support as she needs," does not warrant an executor in 
 seeking out such debts, paying them off, and retaining the 
 amounts upon a settlement with the legatee. Hogan v. 
 Hogan, 63 K C. E, 222. 
 
 15. By will made in 1854, A. J. Spivey gave certain real 
 and personal estate to his wife for life, and then to a niece. 
 The niece died in 1864, and Mrs. Spivey in 1867. By will, 
 the niece gave " to the children of my brother Stephen W. 
 Britton and my sister Mary F. Miller, all of my property of 
 every description, to them and their heirs forever." At the 
 death of the niece, her brother Stephen had one child, which 
 died before Mrs Spivey. A year or more after its death, and 
 before the death of Mrs. Spivey, another child was born to 
 Stephen : held, that the children of Stephen and Mary took 
 per capita. The estate of the niece in possession, was to be 
 divided amongst such of the children of Stephen and Mary 
 as were in being at her death ; and her interest in the estate 
 of A. J. Spivey, was to be divided amongst such of those 
 children as were in being at the death of Mrs. Spivey. The 
 interest of the deceased child of Stephen devolved at its- 
 death upon its father, and was not divested out of him by 
 the birth of the second child, more than ten mouths 
 after such death. (Eev. Code, ch. 38, Eule 7.) The rule 
 that remainders given by will to members of a class, vest 
 only in such as compose the class when the particular estate 
 falls in, applies as well to gifts disposing of remainders pre- 
 viously created, as to gifts which create remainders. Britton 
 v. Miller, 63 N. G. E. 268. 
 
 16. In construing a will, the chief object being to ascer- 
 tain the meaning of the testator, words may be supplied or 
 abstracted, grammatical arrangement disregarded, and clauses 
 transposed : therefore, where the context requires it, "oldest 1 * 
 may be read " youngest. 11 Tagloe v. Johnson, 63 N. 0. E. 
 381. 
 
LEGACY— I. 317 
 
 17. Where a testator in 1861, provided that u Hellen " 
 should " receive $2,000 less than either of my other two 
 children," out of an estate consisting of lands, slaves, &c: 
 held, that the amouut at present, by which Helleu's share is 
 to be diminished, is to bear such proportion to $2,000 as is 
 borne by the present value of the estate (reduced by the re- 
 sults of the war) to such value in 1861. Ibid. 
 
 18. Provisions, that upon the marriage of the testator's 
 second daughter, her share should be taken out and allotted 
 to her ; and it either of the three youngest children, of whom 
 the daughter was one, should die befere the time appointed 
 for the division of the estate, the survivors should inherit her 
 share, — did not operate to give such daughter's share to the 
 survivors, upon her death alter marriage, although in fact, 
 there had been no division of the estate. Ibid. 
 
 19. When a testator directed a division of his estate upon 
 a certain contingency, and that a particular share thereof 
 should thereupon be regarded as realty : held, that such 
 share was to be so considered from the happening of such 
 contingency, even although there was no division. Ibid. 
 
 20. A legacy in contemplation of emancipation and re- 
 moval, to one who was a slave when the will was written, is 
 valid ; and a bequest made in trust for the removal of such 
 slave, with balance if any to him, is, under the results of the 
 war payable to him without abatement. Robinson v. Mclver, 
 63 T*. C. B. 645. 
 
 21. The expression "lawful heirs," in a will, applied to 
 describe those who are to take a bequest of personalty, 
 means such as take that sort of property in cases of intes- 
 tacy. Nelson v. Blue, 63 N. O. li. 659. 
 
 22. Personalty given by a testator who died in 1854, " to 
 be equally divided among all ray lawful heirs," in a case 
 where there were no lineal descendants, and the next of kin 
 are nephews and nieces together with the children of a de- 
 ceased nephew ; is to be confined to the nephews and nieces. 
 1 bid. 
 
 [Note. — Since then aliter, by act of 1862-'3, chap. 49; and 
 act of Aprial 6, 18(59, ''Estates of deceased persons."] 
 
 23. A will is to be construed not only by its language, 
 but by the condition of the testator's family and estate. 
 Lassiter v. Wood 64 N. 0. R. 360. 
 
 24. Where a general purpose can be gathered from a will, 
 particular dispositions in conllict therewith, must give way. 
 Ibid. 
 
 25. A testator died in 1864, leaving lands, and a suffi- 
 
318 LEGACY— I. 
 
 ciency of personal estate to pay debts and legacies; by 
 Emancipation the latter afterwards became insufficient; after 
 giving some money legacies, and devising certain lands, &c, 
 to his wife for life, the testator had given to others " all my 
 real and personal estate not theretofere disposed of:" Upon 
 a question between the claimants of the money legacies, and 
 those who claimed the laud under the last provision : held, 
 that the loss subsequent to the death, fell upon the legatees* 
 and not upou the devisees. Johnson v. Farrell, 64 N. 0. R. 
 206. 
 
 26. Testator died in 1869, leaving a will, made in 1858 r 
 by which he directed "all my negroes, Jnly," (&c, naming 
 them — seven,) " to be removed and settled in some free 
 State ;" and to meet the expenses of removal, bequeathed to 
 his executors $800, and in same clause provided :" should 
 there be any such balance of the trust fund herein created, 
 remaining, after paying the expenses of the removal of my 
 slaves, to be equally divided among them;" Two of the slaves 
 died, unmarried and without issue, before the testator : held, 
 notwithstanding the slaves were emancipated in a way other 
 than that anticipated by the testator, and were not com- 
 pelled to remove, they were entitled to the legacy; the legacy 
 being to individuals of the class nominatim, and not to the 
 class as such, the shares of the two who died before the tes- 
 tator did not survive to the others, but lapsed. Todd v. 
 Trott, 24 N" 0. R. 280. 
 
 27. An unmarried daughter, to whom was bequeathed 
 $3,000 in money or bonds, and in the event of her death 
 without lawful issue, her legacy was to be divided, &o, is 
 entitled to the immediate payment of the whole of such 
 legacy, its ultimate devolution being a question between her 
 and the contingent remainder men, if they are such. Camp 
 v. Smith, 68 N. 0. R. 537. 
 
 28. A testator makes the following bequest : '' Item 3. 
 I will and bequeath that after my death all my remaining 
 estate and effects, consisting of notes, accounts, household 
 and kitchen furniture and farming utensils, &c, be sold and 
 the proceeds thereof be equally divided among all my heirs;" 
 held, that the testator did not intend that his notes and ac- 
 counts should be sold ; they will be collected ; held further, 
 That the proceeds of the sale will be divided into ten parts 
 — one to each of his six children, and one to each of the 
 four grand children. Tuttle v. Puitt, 68 N". C. R. 543. 
 
 29. Where a testator, who died in 1863, bequeathed that 
 a certain slave should be sold and the proceeds equally di- 
 
LEGACY— I.— II. 3M> 
 
 vided between two sous who were appointed executors, and 
 one of the sous bought the interest of his brother in the 
 slave, and kept him until he was emancipated by the results- 
 of the late civil war : It was held, That the purchaser of his 
 brother's interest had uot thereby converted the slave, aud 
 was uot responsible for his value or any part of it, but that 
 he was responsible for the services of him and of the slaves 
 which he had kept up to the time when the} r were emanci- 
 pated. Green v. Green, 09 jST. 0. li. 25. 
 
 30. When a legacy is given to a class as to the chil- 
 dren of A with no preceding estate, such only as can 
 
 answer to the call at the death of the testator, can take, for 
 the ownership is then to be tixed, aud the estate must de- 
 volve upon those who answer the description. Walker v. 
 Johnston, 70 N. C. R. 576. 
 
 31. Wheu, however, there is a preceding life estate, so 
 that the ownership is rilled for the time, and there is no ab- 
 solute necessity to make a peremptory call for the takers of 
 the ultimate estate, the matter is left open until the deter- 
 mination of the life estate, with a view of takiug in as many 
 objects of the testator's bounty as come within the descrip- 
 tion and can answer to the call when it is necessary for the 
 ownership to devolve and be fixed. Ibid. 
 
 32. A legacy to A, who was nullius Jilliiis, and who died 
 intestate without children, does not go to the brothers and 
 sisters of his mother, but escheats to the University. Ibid. 
 
 II. LEGACY, WHETHER SPECIFIC OR GENERAL, AND OF THE ABATEMENT OF 
 
 LEGACIES. 
 
 1. The following words : " I give to my beloved wife, &c, 
 the sum of $20,000, to be paid &c, in eight annual instal- 
 ments, the first to be due twelve months after the date of 
 death, and to be paid as follows, to- wit : one note of hand 
 on E. S , for the sum of $1,000, and one on same for $500, 
 each of them bearing interest at seven per cent., the balance 
 of said instalment to be paid in money at any time when my 
 said wife may desire ; the remaining instalments to be paid 
 annually thereafter from the proceeds arising from the sales 
 of the produce of my farm :" held, to create a general pecu- 
 niary legacy so far that it did not fail upon a failure of a fund 
 to which it is referred, but it is to be paid out of the general 
 assets. Mitchner v. Atkinson, Phil Eq. It 23. 
 
 2. Where a testator directed that two of the shares into 
 which he divided his estate " shall be in negro property, 
 
320 LEGACY— II.— Ill— IV. 
 
 which shall be designated by the executors to this will :" 
 held, that such legacies were demonstrative, and therefore 
 that upon the emancipation of the slaves the legatees thereof 
 lost them, and could not look to other parts ot the State for 
 indemnity. Johnson v. Osborne, Phil. Eq. R. 59. 
 
 3. A legacy of $20,000 to the testator's widow, — upon a 
 survey of the whole will and the state of his family and 
 estate at the time of his death, — declared to be a charge upon 
 the whole estate, and also upon the yearly produce of the 
 land of his former wife, until the legacy is discharged, or her 
 children come of age ; and in this latter respect, such chil- 
 dren put to an election between their interest under the will, 
 and their interest as heirs to their mother. Mitchener v. 
 Atkinson, 63 N. C. E. 585. 
 
 (The former decree in this case modified. See Supra, 1.) 
 
 III. WHETHER VESTED, CONTINGENT OR EXECUTORY. 
 
 1. A legacy of property " to be sold at my wife's death 
 aud equally divided among all my children," is vested; and 
 therefore the representatives of such children as survived the 
 the testator aud died before the wife, are entitled to shares. 
 Falls v. McCulloch, Phil, Eq. E. 140. 
 
 2. A testator directed " that the shares * * * which 
 my son Presley, &c, are entitled to under this will, * * * 
 as well as their equal dividends of my estate not bequeathed, 
 be retained by * * * trustees, &c, for them during their 
 lives, and at the decease ofauy one of them the property 
 * * * to return to his, her or their brothers and sisters: 
 held, that upon the death of one of the tenants for life, her 
 share devolved upon such of her brothers and sisters are sur- 
 vived her, together with the representatives of such as had 
 died since the death of the testator. Also, that Presley's in- 
 terest in such share is not subject to the trusts which affects 
 the property originally given to him Mayhew v. Davidson, 
 Phil. Eq. R. 47. 
 
 IV. WHEN A CHARGE UPON REAL ESTATE. 
 
 1. General pecuniary legacies are not chargeable upon 
 or to be preferred to, specific devises of land, although the 
 after be found in a residuary clause which also incl udes per- 
 sonalty. Bobinson v. Melver, 63 IS". O. R. 645. 
 
 2. An executor, not expressly charged with such, has no 
 official duty in connection with bequests charged upon land. 
 Ibid. 
 
LEGACY— IV.— V. 321 
 
 3. A testator, dying in 1872, bequeathed a pecuniary leg- 
 acy to M. L., bis executrix, and added a residuary clause, as 
 follows: "I will and bequeath to E. L., to pay all rny just 
 debts, and to have all the balance of my estate and papers of 
 every kind, after paying my just debts;" the executrix received 
 assets more than sufficient to pay her legacy, aud not sufficient 
 top ay the debts of the estate, excepting what was bona fide 
 received in Confederate currency or lost without any fault on 
 her part ; held, 1, that her legacy was not ipsojacto paid and 
 that her said legacy was a charge on the real estate of the 
 testator, devised in the residuary clause. Little v. Hager, 67 
 N. C. E. 135. 
 
 4. A died in 18G6, in the county of Chowan, leaving 
 estates in other counties which he gave to different persons, 
 and which he charged with the payment of his debts in the 
 counties respectively wherein such estates were situate and 
 the creditors resided. B living at the time of A's death in 
 Halifax county, claimed a debt against A's estate arising 
 under a special contract made in the county of Chowan in 
 1862, for services rendered at various times and places, in- 
 cluding services rendered in Halifax: held, that B's debt 
 when established would be a charge against the estate ot A 
 left in Halifax county. Garibaldi v. Hollowell, 68 N". C. E. 25. 
 
 See (Legacy, as to what passes and who takes, 25.) 
 
 V. OF DEBTS CHARGED UPON LANDS. 
 
 1. A testator having given to his wife, besides other 
 property, one half of his land, and to a daughter the other 
 half, (with certain slaves, emancipated at the time of the tes- 
 tators death,) and having provided that his debts should be 
 ** paid out of the funds raised off the property given to his 
 wife:" held, as the daughter had died in the testator's life- 
 time, aud the personalty had been exhausted, that her lapsed 
 laud should next be applied to the payment of debts. Galley 
 v. Holloway, 63 N. C. E. 84. 
 
 2. In such case, if it becomes necessary to resort to the 
 land devised to the wife, she is entitled, under Eev. Code, 
 ch. 118, sec. 8 to one-third of the whole of the realty for 
 life, as if the husband had died intestate. Ibid. 
 
 3. When lands are devised in separate parcels to different 
 persons, and it becomes necessary to sell land to pay the 
 debts of the testator, the debts are a charge upon all the 
 lands, and must be raised out of them all according to their 
 respective values. Green v. Green, 69 N. C. E. 25. 
 
 21 
 
322 LEGACY— VI. 
 
 VI. BEQUEST OF THE BESIDUE. 
 
 1. Where a residue in a will was given to Johu, Elizabeth, 
 Edward and Robert, "four children of L. S. and P. E. Webb," 
 and John died in the lifetime of the testatrix: held, that his 
 share did not survive to the other residuary legatees, but was 
 undisposed of and went to the next of kin, Winston v. Webb, 
 Phil. Eq. ft. 1. 
 
 2. Distinction between the cases where there is a lapse of 
 a share in a residue given " to the children of a certain per- 
 son to be equally divided between them " as a class, and where 
 there is such a lapse in a residue given to be equally divided 
 among such children nominalim, stated by Battle, J. Ibid. 
 
 3. A testator gave to his wife money, slaves, &c, and af- 
 terwards by a residuary clause directed " that the balance of 
 his property be sold and the money arising therefrom be 
 equally divided amongst all the legatees named in the will, 
 except the Masons :" held, that the residuary clause included 
 such articles in the lapsed legacy as are the subjects of sales 
 at auction, but not such articles (either lapsed or otherwise 
 undisposed of,) as are not subject of such sales. That persons 
 referred to in other parts of the will only as " children of," 
 &c, are included in such residuary clause equally with per- 
 sons actually named in such parts. That the division direct- 
 ed by the residuary clause is a division per capita. That the 
 word " legatees " in the residuary clause included the wife, 
 and that her share in the residue having lapsed does not go 
 to the other residuary legatees, but is undisposed of and goes 
 to the next of kin. Hastings v. Earp, Phil. Eq. R. 5. 
 
 4. A bequest, that certain chattels " in the possession of 
 my son Johu shall be divided between his children that may 
 be living at his death," does not, by implication, confer a life 
 estate upon John, but such interest for life falls into the resi- 
 due. Ibid. 
 
 5. A clause in a will providing — il and should there be 
 anything at my death undivided, it is my will that it be sold 
 and equally divided amoug my four sons, after paying my fun- 
 eral expenses and all just debts," — in a case where the resi- 
 due consisted of a considerable amount of money and choses 
 in action, and an inconsiderable amount of other personal 
 property, disposed of the whole of such residue. Hogan v. 
 Hogan, 03 N. 0. R. 222. 
 
 (5. A will is made in these words : I direct that my debts 
 and funeral expenses be paid. I will and bequeath to my 
 son, Peter A. Summey, twenty-five hundred dollars. I will 
 
LEGACY— VI.— VII. 323 
 
 and bequeath to my wife, Harriet Caroline, my house and 
 lot in Lincolnton in which I now live, my plantation about a 
 mile from Lincolnton, and my household and kitchen furni- 
 ture, for and during her natural life, and a sufficient quantity 
 of property or money for a year's support for herself and 
 family. I also will absolutely to my wife the following slaves, 
 Sophia, &e., also all the balance of my estate both real and 
 personal, with the remainder after my wife's death, in my 
 house and lot, plantation and household and kitchen furni- 
 ture, to be equally divided between my children, Geor§e L. 
 Summey, Caroline Dusenbury, Barbary Alexander and Peter 
 A. Summey, with the understanding that the negroes I have 
 already given to my son George shall be taken into account 
 in said distribution : ****** held, that the lead- 
 ing idea in the testator's mind was to make all of his chil- 
 dren equal with an advantage to his son Peter A. Summey, 
 to the extent of $2,500. Alexander v. Summey, 6G K C. R. 
 578. 
 
 7. The will having been made in September, 1864, when 
 Confederate mouey had become so depreciated as not to de- 
 serve the name of a currency ; to construe the legacy to 
 Peter as payable in Confederate currency would be to "mock'' 
 the legatee : therefore held, Peter's legacy must be estimated 
 at its nominal value in good money. IMd. 
 
 8. On the other hand, the major part of the testator's 
 estate having consisted of slaves which were lost by emanci- 
 pation, it would not carry out the testator's intention to pay 
 Peter's legacy in full, auoMeave nothing for the other legatees : 
 therefore held, that Peter's legacy must abate proportionally. 
 1 bid, 
 
 9. The rule of proportion is : to ascertain the value of 
 the whole estate at testator's death, and the proportion that 
 Peter's legacy of $2,500 bore to that sum, is the proportion 
 it bears to the estate as reduced. IMd, 
 
 10. After deducting the sum due Peter on his legacy, as 
 thus abated, the balance is to be divided into three parts, 
 between the daughters and Peter, unless George shall elect 
 to bring his advancement into hotchpot, in which case the 
 remainder must be divided into four parts. Ibid. 
 
 VII. LAPSED AND VOID LEGACIES. 
 
 1. Where it appeared that the sole motive with a testa- 
 tor, for leaving the greater part of his estate to his son, was, 
 that the latter should live with him and help him pay his 
 
324 LEGACY— VII.— VIII. 
 
 debts and also treat his parents "with " humanity and kind- 
 ness," and such son died in the lifetime of the testator: 
 held, that the devise lapsed ; also, that the son's interest in 
 the condition was not " real or personal estate " within the 
 statute, (Code, ch. 119, sec. 28,) which gives such estate to 
 the issue of a son dying under such circumstances. Lefler 
 v. Rowland, Phil. Eq. 143 
 
 2. Upon the death (before the testator) of a residuary lega- 
 tee, {a nephew and one of the heirs of the testator) the real and 
 personal estate given to him lapses for the benefit of the 
 testator's heirs and next of kin. Robinson v. Mclver, 63 
 N. C. R 645. 
 
 3. In case of such lapse, an annuity charged upon the 
 land in favor of one of the heirs will abate pro rata. Ibid. 
 
 VIII. OF THE ASSENT OF THE EXECUTOK AND ITS EFFECT. 
 
 1. The act of 1840, Eevised Code, chap. 60, sec. 3, qual- 
 ifies the maxim il a man must be just before he is generous," 
 in case where the honor, at the time of the gift, retains prop- 
 erty fully sufficient and available for the satisfaction of his 
 then creditors." But this modification is confined to gifts 
 into vivos, and in respect to legacies or gifts by will there has 
 been no modification of the maxim. On the contrary, the 
 legislation on the subject tends to a strict enforcement. Pul- 
 len v. HutcMns, 67 N. C. R. 428. 
 
 2. The assent of an executor to a legacy, before the debts 
 of his testator are paid, is void as to the creditors, and if the 
 executor commits a devastavit and is insolvent, the loss must 
 fall upon the legatee rather than the creditor. Ibid. 
 
 3. A legatee cannot avoid responsibility, on the ground 
 that the executor assented and paid the legacy without re- 
 quiring a refunding bond. The omission to take such bond 
 must be ascribed to collusion, or to gross negligence on the 
 part of the executor, of which the legatee cannot take advan- 
 tage. Ibid. 
 
 4. Where a guardian took from an executor his note in 
 payment of a legacy due his wards, which was collected and 
 placed to their credit ; it was held, that a payment in a note, 
 in the first instance, did not release them from their obliga- 
 tion to contribute pro rata for the benefit of the creditors. 
 Ibid. 
 
LICENSE.— LIEN OF LABORERS, &c. 325 
 
 LICENSE. 
 
 1. A railway company having a right, by virtue of its 
 charter, to locate its road-bed on a certain portion of the 
 land of B, he proposes by letter, that if the company will 
 refrain from such location, it may locate it over another por- 
 tion of his laud : Provided it would open, grade and put in 
 order a street, on that part in front of his house eighty-five 
 feet wide. The company accept the proposition, locate their 
 road-bed accordingly, in December, 1869, but fail to open the 
 street, &c, as late as September, 1871. The company be- 
 come insolvent before September, 1871, and execute a mort- 
 gage of its property. In September, 1871, B notifies the 
 compauy that unless the condition is performed within 15 
 days, he will repossess himself of the land covered by the 
 road-bed : held, that the opening, &c., of a street was not a 
 condition precedent to the exercise of the right to locate ; 
 that the proposition contained in B's letter was not a mere 
 license, revocable at will ; that while at law no easement 
 passed to the company, because an easement in land can be 
 created only under seal, yet, the writing by which the defen- 
 dant charged himself was binding within the statute of 
 frauds, and would be specifically enforced, and between the 
 parties and to protect the rights of the licensee, this Court 
 acting upon the familiar maxim of equity, that what ought 
 to be done is considered as done, would consider that a grant 
 of the easement had been made. W. & T. R. B. Go. v. 
 Battle, 6C N. C. R. 540. 
 
 2. A license, even under seal, (if it be a mere license) is-. 
 as revocable as one by parol ; on the other hand, a license- 
 by parol, coupled with an interest and founded on a valuable 
 consideration, is as irrevocable as if made by deed. The 
 license specified above is of the latter class. The transac- 
 tion may also be viewed as a contract, entitling either party 
 to a specific performance. 
 
 See (Railways, 14.) 
 
 LIEN OF LABORERS AND OTHERS. 
 
 1. A and B, in January, 1 872, entered into a verbal agree- 
 ment, that B should cultivate A's farm that year, A furnish- 
 ing the teams and B labor : A was also to advance money 
 
326 LIEN OF LABOEBRS, &c— LIMITATIONS, &c. 
 
 during the year to pay the laborers, which advances were to 
 be a lieu on B's share of the crop, and when the crop was gath- 
 ered, A was to have two-thirds thereof aud B one-third. In 
 September, B assigned to 0, the plaintiff, his interest to the 
 crop, to secure a debt, and during the same month died ; A 
 administered on B's estate, and filed a lien on his part of the 
 crop to secure the amounts he had advanced for labor, and 
 for gathering the crop after B's death : held, that A, the de- 
 fendant, was entitled to be paid the money advanced for hous- 
 ing the crop ; and that for the amount paid to the laborers, 
 he was subrogated to their right of an incohate lien on the 
 crop in preference to the claim of the plaintiff. McCoy v. 
 Wood, 70 N. 0. E. 125. 
 
 2. The lien of a laborer, who commenced work in January, 
 1873, attaching by virtue of the provisions of the Act of 
 1868-'69, ch. 206, sec. 9, is not divested in favor of the lien 
 created by the Act of 1872-'73, chap. 133, sec. 1, ratified 1st 
 March, 1873, as that would be impairing a vested right, as 
 well as the obligation of a contract. Warren v. Woodard, 
 70 N. 0. R. 382. 
 
 See (Assignment in Equity.) (Bank and Bank Notes, 18.) 
 
 LIMITATIONS AND LAPSE OF TIME. 
 
 1. Where an answer admitted that a deed for land, abso- 
 lute upon its face, had been made as charged in the bill, upon 
 a parol trust that it should be a security for the payment of 
 a sum of money, but relied upou the lapse of ten years since 
 its execution as a defence against an enforcement of such 
 contract : held, that as the complainant had all the while 
 been in possession of the laud, the defence was not valid. 
 Price v Gaskins, Phil. Eq. R. 224. 
 
 2. The land of a feme covert having been conveyed with- 
 out her privy examination : held, that there was no adverse 
 possession as against her issue, until after the death of the 
 husband. Kinkade v. Perkins, 63 N. 0. R. 282. 
 
 3. The statute of limitations, in actions upon unsealed 
 contracts, has been suspended since September 1st, 1861, and 
 by present legislation, is to remain so until January 1st, 1870. 
 tjohnson v. Winsloiv, N. C. R. 552. 
 
 4. The act of February 10th, 1863, (ch. 34,) by suspend- 
 ing the statute of limitations, prevented a possession of land 
 extending from October 15th, 1845, to January 16th, 1868, 
 
LIMITATIONS AND LAPSE OF TIME. 327 
 
 from barring the State under the act giving such operation 
 to tiventy-one years' possession with color of title. Howell v. 
 
 Bute, 64 N. 0. R. 446. «,."■»♦ 
 
 5. The statute of limitations was suspended in this btate 
 by different acts of the Legislature from the 11th May, 1861, 
 to the 1st day of January, 1870,, and hence a parol contract 
 which was not barred by the said statute on the said first 
 mentioned date could not have been so prior to the 1st day 
 of January, 1870. Plott v. W. N. G. R R Co , 65 N. 0. R. 74. 
 
 6. The 14th section of the act of March, 1866, ch. 17, 
 entitled an "Act to change the jurisdiction of the courts and 
 rules of pleading therein," which repealed the act of 11th 
 September, 1861, and 14th December, 1863, which had sus- 
 pended the statutes of limitations; did not repeal the act ot 
 21st February, 1866, ch. 50, which had suspended the opera- 
 tion of these statutes until the 1st of January, 1867, so that 
 there was no statute of limitations in operation during the 
 year 1866. Smith v. Rogers, 65 N. 0. R 181. 
 
 7. A promissory note barred by the statute of limitations 
 is not revived by an offer to pay in Confederate currency, or 
 bank bills. Simonton v. Clark, 65 N. 0. R. 525. 
 
 8. To repel the statute of limitations there must be such 
 facts and circumstances as show that the debtor recognized 
 a present subsisting liability, and manifested an intention to 
 assume or renew the obligation. Ibid. 
 
 9. Inaction on an account due 1st January, 1861, to 
 which the statute of limitations is pleaded, the time during 
 which the statute is to run, must be computed from the 
 said 1st day of January, to the 20th day of May, 1861, and 
 then from the 1st day of January, 1870. till the day the sum- 
 mons was issued. Williams v. Williams, 70 N. 0. R. 189. 
 
 10. The right of action accruing upon the following 
 instrument: "This is to show that half the hire of Randall, 
 hired, to Larkin Brooks is Moses Jones, December 29, 1853," 
 did not arise until a demand and refusal, at which time the 
 statute of limitation began to run. Jones v. Woods, 70 
 N. 0. R. 447. a . ^ T 
 
 11. A bond for the payment of money executed in May, 
 I860, by the principal and* his sureties is by the 16th sec. of 
 the C. C P., exempted from the operation of the statute of 
 limitations as contained in the sees. 31 and 34 of the 0. 0. 
 P. Knight v. Braswell, 70 N. 0. R. 709. 
 
 12. Where a bond is made payable " with interest from 
 date, the interest to be paid annually," the interest becoming 
 due at the end of each year, is not barred by any statute ot 
 J imitation that does not bar a suit on the bond. Ibid. 
 
328 LIMITATIONS, &c— LIS PENDENS. 
 
 See (Attachment — By the death of parties, 1.) (Attach- 
 ment — Original Attachment, 10.) (Bankruptcy, 20.) (Cor- 
 poration, 8.) (Counties and County Commissioners, 12.) 
 (Eailways, 2.) (Surety and Principal, 19.) (Widow — Of her 
 Dower, 10.) 
 
 LIS PENDENS. 
 
 1. Where a bill recited that a petition for a sale of land 
 had been hied and was still pending in the same court, and 
 that the money was still due by the purchaser, and prayed 
 that, inasmuch as the price at such sale was at an extrava- 
 gant rate, being based upon Confederate paper money, the 
 purchaser and his sureties might be decreed to pay its rea- 
 sonable value, &c: held, that as this relief was no other than 
 might have been had in the petition then pending, the bill 
 would not be entertained ; also, that, as the bill showed upon 
 its face that the relief might have been had in the former 
 proceeding, the objection was well taken by demurrer. Rogers 
 Y.Holt, Phil. Eq.E. 108. 
 
 2. Where a complainant can obtain the money desired 
 under a bill already filed by him, it is improper to commence 
 another suit therefor. Whitaker v. Bond, Phil. Eq. E. 229. 
 
 3. Where it appears upon the face of a bill (or petition 
 having the requisites of an original bill) that the relief 
 sought may be had in a cause already pending, the bill is 
 demurrable and will be dismissed. Gee v. Sines, Phil. Eq. 
 E. 315. 
 
 4. Such bill will not be treated as notice of a motion in 
 the original cause- Ibid. 
 
 5. A lis pendens being notice to all the world, a sale of 
 land which is the subject of a suit in equity, before a dev ree 
 is rendered, will not be regarded, and the land may be sold 
 under an execution issued upon the decree when rendered. 
 Baird v. Baird, Phil. Eq. E. 31 7. 
 
 6. In such case a supplemental bill to enforce the decree 
 in the original suit, making the purchaser of the land a party,, 
 is unnecessary, and will be dismissed upon demurrer. Ibid. 
 
 7. The bill of equity given to creditors, "without obtain- 
 ing a judgment at law," by the ordinance of June 16th, 1800, 
 sec. 18, creates a right, whether it be a lien or merely a Us 
 pendens, in favor of such creditors, from the time of filing, 
 which is not disturbed by the fraudulent vendor's subse- 
 quent bankruptcy. Carr v. Fearington, 63 N. C. E. 560*. 
 
LOTTERY.— MALICIOUS PROSECUTION. 320 
 
 LOTTERY. 
 
 General words, in an act of incorporation, do not authorize- 
 the Company to do acts which by the public law are indicta- 
 ble ; plain and positive words are necessary to convey such a 
 privilege; therefore, the charter of " the North Caroliua Real 
 and Personal Estate Agency," in providing that " the said 
 agency shall have the right and power to sell and dispose of 
 any real or personal property placed in their hands for sale, in 
 any mode or manner the agency shall deem best,^ (Private acts 
 of 18G8-'9, c. 42,) did not authorize the Agency to sell prop- 
 erty by means of a lottery. State v. Krebs, 64 N. 0. R. 604. 
 
 MALICIOUS PROSECUTION. 
 
 1. In an action for malicious prosecution by a State's war- 
 rant for larceny, it appeared, that the warrant had been a 
 joint one, against the plaintiff and one Tobe, — that the preli- 
 minary oath made by the defendant was to the contents of the 
 warrant, which contained the usual recital, — that the defen- 
 dant was a man of more than ordinary intelligence, — that the 
 warrant was drawn by his friend, who had come to the mag- 
 istrate with him, and who afterwards served it, — that in the 
 conversation with the magistrate preliminary to the taking 
 out of the warrant, the defendant did not charge the plaintiff 
 with stealing the article, but charged Tobe, his own servant, 
 with stealing it, and the plaintiff with harboring Tobe, — that 
 upon the trial of the warrant, some sharp words having been 
 used by the plaintiff in regard to the charge, the defendant 
 said that he did charge him with stealing ; and that the de- 
 fendant, on the trial, assisted in conducting the examination 
 of the witnesses : held, that evidence going to show that at 
 the time of taking out the State's warrant, the defendant had 
 malice towards Tobe, was competent, as going to show the 
 state of his mind at that time towards the plaintiff; that the 
 Judge was warranted in instructing the jury that if they be- 
 lieved the evidence, the defendant had Unoivingly prosecuted 
 the plaintiff for larceny; that he was warranted in declining 
 to instruct them, that it they believed that the defendant did 
 not mean by his affidavit to charge the plaintiff with stealing, 
 he could not be liable; and that he was also warranted in de- 
 clining to instruct them, that if the defendant stated the facts 
 
330 MANDAMUS 
 
 to the magistrate, such facts not constituting a criminal of- 
 fence, and the magistrate issued the warrant upon such state- 
 ment, the defendant would not be liable. Thomas v. Norris, 
 
 64 N. 0. E. 780. 
 
 MANDAMUS. 
 
 1. One who applies for a mandamus to compel his induc- 
 tion into an office, must show affirmatively that he is entitled 
 to hold such office, Worthy v. Barritt, 63 N. 0. E. 199. 
 
 2. A creditor of a count}', (by coupons upon county bonds 
 issued in 1858,) applied for a mandamus to compel the levy 
 of taxes for the satisfaction of his debt : held, that the rem- 
 edy was a proper one. Peg ram v. Comm'rs of Cleaveland, 64 
 N. 0. E. 557. 
 
 3. Quare, whether a mandamus can be revived in any 
 case. Carson v. ComnVrs of (Ueaveland 64 N. 0. E. 566. 
 
 4. The Board of Commissioners of a county have a per- 
 petual existence, continued by members who succeed each 
 other, and the body remains the same, notwithstanding a 
 change in the individuals who compose it. Hence, when a 
 writ of mandamas is obtained against a Board of Commis- 
 sioners, and there is a change in the individual members 
 between the time when the writ was ordered, and when it is 
 served, those who compose the Board at the time of service 
 must obey it. Pegram v. Comm'rs of Cleaveland, 65 N. C. E. 
 114. 
 
 5. A plaintiff who has obtained a judgment against a 
 county is not entitled to an execution against it. Ips rem- 
 edy is by a writ of mandamus against the Board of Commis- 
 sioners of the county, to compel them to levy a tax for the 
 satisfaction of the judgment. Gooch v. Gregory, 55 IS". C. E. 
 142. 
 
 6. The 8th section of the Ordinance of the Convention of 
 1868, having provided that, when the President and Chief En- 
 gineer of the North-western North Carolina Eailroad Com- 
 pany should have complied with certain terms in respect to 
 the first division of the said road, the Governor should direct 
 that the Public Treasurer should make a loan to the com- 
 pany by issue of a certain amount of State bonds, and the 
 terms having been complied with, it was held, that the com 
 pany was entitled to have a peremptory mandamus to compel 
 the Treasurer to issue the bonds, notwithstanding the subse- 
 
MANDAMUS. 331 
 
 quent legislation contained in the acts of 1868-9, cbap 32, of 
 1869-'70, chaps. 71 and 100, as all those acts taken together 
 left the Ordinance above mentioned in full force and effect. 
 North-western N. C. B. R. Co. v. Jenkins 05 N. 0. E. 172. 
 
 7. Where a party has established his debt against a 
 county by judgment, and payment cannot be enforced by an 
 execution, he is entitled to a writ of mandamus against the 
 Board of Commissioners of said county, to compel them to 
 levy a sufficient tax to pay off and discharge his said judg- 
 ment. Lutterloh v. Comers of Cumberland, 65 N. C R. 403. 
 
 8. There is no provision in the 0. 0. P. regulating the 
 proceedings in writs of mandamus, and in such cases " the 
 practice heretofore in use may be adopted so far as may be 
 necessary to prevent a failure of justice." 0. C. P., sec. 392. 
 (Bat. Kev., ch. 17, sec. 392.) Ibid. 
 
 9. This writ can only be used by the express order of a 
 court of superior jurisdiction, and is not embraced in the 
 rule established in Tate v. Powe, 64 N. , 644, which marks 
 out the distinction between civil actions and special proceed- 
 ings. Ibid. 
 
 10. Where the plaintiff's demand may involve disputed 
 facts, the proper application is for an alternative mandamus. 
 Where, however, the plaintiff's claim is based upon a judg- 
 ment, then the proper process is a peremptory mandamus. 
 Ibid, 
 
 11. Whether the General Assembly possesses the power 
 to forbid the board of commissioners of a county to levy and 
 collect a tax to pay an existing debt of the county, when 
 such board is commanded to do so by the order of a Superior 
 •Court having jurisdiction of the matter, and whether in such 
 case the board must take the responsibility of deciding this 
 question, so that, should the statute be held constitutional, 
 the return would be responsive and sufficient — otherwise the 
 persons composing the board subject themselves to line and 
 imprisonment for contempt, quere. Ledbetter v. Comers of 
 Chatham, 06 N. C R. *80. 
 
 12. The statute, however, of 1871, Acts of 1870-'71, 
 chap. 114, forbidding the Board of Commissioners of Chat- 
 ham county from levying or collecting any other tax except 
 for the accruing current expenses of the county, is relieved 
 from the imputation of being unconstitutional, tor while for* 
 bidding the levying of a tax, the scope and effect of it is to 
 empower the board to raise the necessary amount to dis- 
 charge the liabilities of the county, outstanding at the time 
 of the ratification of the act, by issuing, and selling in the 
 
332 MANDAMUS. 
 
 market, coupon bonds, and a mandamus lies to compel the 
 issuing aud sale thereof to pay debts outstanding when the 
 act was passed. Ibid. 
 
 13. The general rule is, that no return to a peremptory 
 mandamus is sufficient except that it has been obeyed, but 
 if a statute be enacted, after such peremptory order, for- 
 bidding obedience and making obedience impossible, such 
 new matter will, of necessity, constitute a sufficient return, 
 provided the statute is constitutional and within the law- 
 making power. Ibid. 
 
 14. Per Pearson, C. J., arguendo: If the only proper con- 
 struction of the statute is that the creditors of the county 
 are put to the alternative of accepting coupon bonds, or be 
 without remedy because the board are forbidden to levy or 
 collect any tax except for accruing current expenses of the 
 county, thus making a direct conflict of power between the 
 Judge of the Superior Court and the Generral Assembly, as- 
 assumed by the counsel for each party, there would be much 
 force in the objection that it impairs the obligation of con- 
 tracts. 1 bid. 
 
 15. But this construction is too narrow, aud the one first 
 indicated is the true one, not only as warranted by the terms 
 of the act, but by the well settled principle governing the 
 construction of statutes, namely, that where a statute admits 
 of two constructions, one of which is consistent with the Con- 
 stitution, and the other is questionable as violative of good 
 faith and as tending to impair the obligation of contracts — 
 in other words, if a thing may be done in a rightful way, or 
 in a wrongful way, it shall be presumed to have been done in 
 the rightful way. Ibid. 
 
 16. In this case, on the coming in of the return, setting 
 forth the provisions of the statute under consideration, the 
 court below should have modified the order so as to require 
 the board to raise the money in the mode provided, for the 
 act being constitutional protected the board from the charge 
 of contempt, Ibid. 
 
 17- Ordinarily the successful party is entitled to costs of 
 this court, but they are refused in this case for peculiar rea- 
 sons. J bid. 
 
 18. Whether a mandamus can be used to try the title to an 
 office under any circumstances, queref But not being pro- 
 vided for by the C. 0. P., it must, by virtue of sec. 392, C. 
 C. P , be governed by the former practice, aud hence, must 
 be moved for, and be made returnable in term time. Hoiv- 
 erton v. Tate, 66 N. C. E. 231. 
 
MANDAMUS. 333 
 
 19. Mandamus is not the appropriate remedy to try title 
 to an office. Mott v. Tate, M N. 0. R. 214. 
 
 20. Mandamus will not lie to compel the Treasurer to pay 
 money on any claim against the State, until the same has 
 been passed upon and a warrant issued by the Auditor for 
 that purpose. Bayne v. Jenkins, 66 N. 0. R. 356. 
 
 21. When the Legislature has forbidden a warrant to be 
 issued, claimant must apply to that body for redress, or insti- 
 tute proceedings in the Supreme Court. Ibid. 
 
 22. To an action by mandamus instituted against the 
 Justices of a county, Commissioners elected under the Con- 
 stitution cannot be substituted as parties, and this error is 
 not waived by answer, but may be taken advantage of at any 
 stage of the proceedings. Ihomas v. Commissioners of Car- 
 teret, 66 N. C. R. 322. 
 
 23. A mandamus against the Commissioners of a county, 
 should run against them as " a board," and not against the 
 individuals comprising such board. Ibid. 
 
 24. Where a mandamus was issued, commanding the 
 Board of Commissioners of a county to levy a tax sufficient 
 to pay the plaintiff's claim against the county, and a rule was 
 afterwards served upon them to show cause why they should 
 not be attached for disobedience to the order : held, that an 
 answer to the rule, that they had levied a sufficient tax, and 
 placed the lists in the hands of the Sheriff, was responsive 
 and the rule ought to be discharged. Johnson v. Board of 
 Commissioners of Cleveland, 67 N. C. R. 101. 
 
 25. The Justices of a county having failed, for many 
 years, to levy a tax to pay the interest on bonds issued by the 
 county to aid in building a railroad, the Board of Commis- 
 sioners should not be required at the suit of the creditors to 
 raise in one year, by taxation, the whole amount of the inter- 
 est in arrear ; but in the case of a mandamus ordering them 
 to levy a tax and pay the interest, it was a prudent exercise 
 of a discretion to raise part by taxation, aud issue county 
 bonds in order to raise the remainder. Ibid. 
 
 26. Semble that proceedings by mandamus against the 
 commissioners of a county should be instituted in the Supe- 
 rior Court of their own county. Ibid. 
 
 27. If a note be made payable at a particular time and 
 place, a demand at the time and place need not be averred 
 and proved in an action by the holder against a maker. It 
 is otherwise, if it is payable on demand at a particular time 
 and place. Alexander v. Board Commisssoner of McDowell, 
 67 N. C. R 330. 
 
334 MANDAMUS.— MANSLAUGHTER. 
 
 28. In an action, however, against the Board of Commis- 
 sioners of a county a demand is necessary, without regard to 
 the fact whether the claim is expressed to be payable at any 
 particular time or place, and in a mandamus, " the writ should 
 show expressly, by the averment of a demand and refusal, or 
 an equivalent, that the prosecutor, before his application to 
 the court, did all in his power to obtain redress." Ibid. 
 
 29. It would seem that in an action against the Commis- 
 sioners of a county, the action should be brought in the 
 county in which they are officers, 0. 0. P., sec. 67. Ibid. 
 
 30. Where an act of the legislative branch of the gov- 
 ernment directs an executive officer to do a specific act, which 
 does not involve any official discretion,, but is merely ministe- 
 rial, as to enter a specific credit upon an account, and the 
 officer refuses to do so, a mandamus will be ordered. Ral- 
 eigh & Augusta A. L. R. R. Co. v. D. A. Jenkins, 68 N. C. R. 
 502. 
 
 31. When a debt against a municipal corporation has been 
 reduced to judgment in a court of competent jurisdiction, a 
 peremptory mandamus may be properly asked for, although 
 such judgment is dormant. Webb v. Comni'rs of Beaufort, 
 70 N. C. R. 307. 
 
 32. Where a plaintiff holds a debt against a county, con- 
 tracted since the adoption of the Constitution for the ordina- 
 ry and necessary expenses of the county, and where the 
 county has the means to pay the debt, such plaintiff is enti- 
 entitled to a peremptory mandamus, and it^was error in the 
 Court to refuse it." Vzzell v. Commissioners of Franklin, 
 70 N. C R., 564. 
 
 33. A creditor of a county cannot be compelled either by 
 the Legislature or by the Board of Commissioners to "bond" 
 his debt and wait five years for its ultimate satisfaction ; such 
 creditor is entitled to a peremtory mandamus. Edwards v. 
 Comm'rs of Wilkes, 70 K C. R. 571. 
 
 See (Office and Officer, 27.) 
 
 MANSLAUGHTER. . 
 See (Homicide.) 
 
MARSHALING.— MILITARY ORDEKS.— MILLS. 335 
 
 MARSHALING. 
 
 A prayer to marshal certain funds will be refused where 
 the paramount charge is upon one fund only. Young v. 
 Davidson, Phil. Eq. R. 261. 
 
 MILITARY ORDERS. 
 
 1. The Military Order, No. 10, sec. 2, (April 11th, 1867,) 
 does not forbid the courts of the State to hear and try causes 
 and render judgments and decrees ; but it operates in anal- 
 ogy to injunctions, against executions after judgment. 
 Broughton v. Haywood, Pbil. L. R. 380. 
 
 2. There is nothing in General Sickles' Order, No. 10, or 
 in the Acts of 1865-'66, ch. 50, and 1866->67, ch. 17, to pre J 
 vent a decree for money made at the Superior Court of Chat- 
 ham, Spring Term, I860, (3d Monday of March,) from be- 
 coming dormant before the 13th day of July, 1808 ; there- 
 fore, an execution which issued at the latter date upon such 
 decree, is irregular, and should be set aside. Mclntyre v. 
 Guthrie, 64 N. C. R. 104. 
 
 3. A bond executed April 25th, 1866, although given in 
 satisfaction of a previous bond executed December 1st, 1860, 
 constitutes a cause of action arising subsequent to May 15th, 
 1865, within the meaning of General Order, No. 10, issued 
 April 11th, 1867 ; therefore, a return upon an execution by 
 a sheriff to May Term 1867, — "Levied, &c; no sale, in obe- 
 dience to Order No. 10, from Daniel E. Sickles," was not a 
 due return. Isler v. Kennedy, 64 N. C. R. 540. 
 
 4. The military order of Gen. Sickles, forbidding corpo- 
 ral punishment, could not have had any greater effect than 
 merely to suspend the law ; and as soon as the order ceased, 
 the law was restored, to be administered as before. State v. 
 Kent, 65 N. C. R. 311. 
 
 MILLS. 
 
 1. Defendants have a right to appeal from an interlocu- 
 tory order of the Lounty Court appointing four freeholders 
 to view, lay off and value land for mill site under Rev. Code, 
 ch. 71, sec. 1. Minor v. Harris, Phil. L. R. 322. 
 
336 MILLS. 
 
 2. The rule upon this subject contained in the Revised 
 Statutes, and administered in Brooks v. Morgan, 5 Ire. 481, 
 Las been reversed by the provisions of the Eevised Code, ch. 
 4, sec. 1. Ibid. 
 
 3. Instructions to a jury, that if a plaintiff sustains no 
 injury from the ponding of water upon his mill wheel, still 
 he is entitled to nominal damages, are correct. Little v. 
 Stariback, 03 K R. 285. 
 
 4. Where a petition under the statute (Rev. Code, ch. 71, 
 sec. 8,) for damages caused by the erection of a mill upon 
 the stream below, described it as a " grist mill ;" without 
 calling it a public mill, or a grist mill grinding for toll, held, 
 to be sufficient. Ibid. 
 
 5. The mere raising ot a stream within its banks, al- 
 though it is not thrown out of them, is sufficient to support 
 an action for injury to land through which it runs- Ibid. 
 
 6. Where successive dams at a certain point upon a creek 
 had thrown the water back upon the plaintiff's land to a 
 certain extent for more than twenty years, and after that a 
 new dam, no higher than the former dams, but tighter than 
 they, erected six feet lower down the creek, filled up the 
 bed of the stream with sand, and sobbed the plaintiff's land 
 to a considerably greater extent than before, although it did 
 not pond the water further back : held, that the easement 
 obtained by the twenty years' possession, upon the maxim 
 tantum prfescriptum quantum possbssum, did not protect the 
 owner of the dam from liability on account of the new in- 
 jury. Powell v. Lash, 64 N. 0. R. 456. 
 
 7. The jury required to try issues joined in proceedings 
 for damages caused by mills, have no right to assess such 
 damages ; these are assessed by Commissioners, to be ap- 
 pointed by the Judge, in case the jury finds the issue in 
 iavor of the plaintiff. Sumner v. Miller, 64 N. 0. R. 688. 
 
 8. It is not necessary that all the Commissioners ap- 
 pointed uuder the act of April, 1869, chap. 158, entitled "An 
 Act relating to special procedure in cases of mills," should 
 sign the report required to be made, a majority being suffi- 
 cient Austin v. Helms, 65, N\ C. R. 560. 
 
 9. In a suit for damages, for an injury to plaintiff's land 
 by ponding water upon it, the defence relied on being an ease- 
 ment by prescription to pond water back by the erection of a 
 new dam in place of an old one, and the plaintiff replying to 
 such defence, that the new dam was higher and tighter than 
 the old one, and that thus the easement was exceeded : held, 
 that the issue submitted to the jury as to the height of the 
 
MILLS.-MINES -MISCEGENATI0N.-M1STAKE. 337 
 
 new clam, and as to whether from such height over the height 
 of the old dam the plaintiff was endamaged, are not suffi- 
 ciently responsive to the allegation and denial in complaint 
 and answer, and that the jury should find, whether or not 
 the defendant has exceeded his easement, and ponded water 
 hack further than he had a right to do by prescription. 
 Jenkins v. Conly, 70 y. 0. E. 353. 
 
 MINES. 
 
 In a suit involving the title to mining-property, a receiver 
 is not to be appointed unless the parties in possession are in- 
 solvent, or are injuring the property by the management. 
 Carter v. Hoke, 64 N. C. E. 348. 
 
 MISCEGENATION. 
 
 The provisions of the Act. (Eev. Code, ch. 68, sec. 7,) de- 
 claring intermarriages between whites and persons of color to 
 be void, are still in force in this State; not having been af- 
 fected by recent changes of the Constitution of the State, or 
 of the United States ; or by the Civil Eights Bill. State v. 
 Hairston d- Williams, S. P. State v. Beinliart ct- Love, 63 
 1S\ C. E. 451 and 547. 
 
 MISTAKE. 
 
 1. In a case where there was a question between the 
 parties as to the kind of currency in which a contract for 
 money was solvable, and upon taking an account it appeared 
 that the debtor had overpaid the debt: held, that he could 
 not recover the surplus from the creditor, as money paid by 
 mistake. Pear sol v. Mayers, 64 N. C. E. 541). 
 
 2. Under the new Constitution, and since the adoption 
 of the C C. P., a civil action may be brought upon a note 
 without seal, and an allegation may be made that the note 
 was intended to be under seal, but that the seal was omitted 
 by accident or mistake, and upon sufficient proof the accident 
 
338 MISTAKE.— MORTGAGE. 
 
 or mistake may be corrected, and a recovery had accordingly ► 
 McCown, Adm'r. v. Sims, 69 N. 0. E. 159. 
 
 3. In an action involving the correcting of a mistake in 
 omitting to put a seal to a note, the circumstances that the 
 note was taken by way of accommodation, for another, to 
 which the seal was attached, that the words " witness my 
 hand and seal," were in the note, and that the parties were 
 a sister and a brother of the half-blood living in the same 
 house on terms of the most intimate family relations, are all 
 admissible in evidence tending to prove that a seal was in- 
 tended to be put to the note, but was omitted by accident or 
 mistake. Ibid. 
 
 4. Where the allegations in a complaint, (praying the 
 correction and re-execution of a deed,) that the fee simple 
 in the land was sold and brought a good price, and that by 
 mistake the word " heirs" was omitted and the seal of the 
 (Jlerk and Master was not affixed, are not controverted in 
 the answer, or where the answer as to such allegations is so 
 obscure and meaningless as to have no legal effect, and to 
 amount only to a "sham plea," the presiding Judge was 
 right in refusing to submit the issues of fact to the jury, and 
 in adjudging that the correction should be made. Long v. 
 Fish, 70 N. C E. 674. 
 
 See (Fraud — In conveyances, 2, 5, 6.) (Husband and 
 Wife — Wife's power over her separate estate, 6.) 
 
 MORTGAGE. 
 
 1. A provision, in a mortgage deed conveying various arti- 
 cles of real and personal estate, that when any amount, or 
 any note, is due, the mortgagee shall call on the mortgagor 
 for the same, and if payment be made, nothing shall be done, 
 otherwise the mortgagee shall advertise and sell enough to 
 pay what is due. and the mortgagor shall direct what shall be 
 sold, — is a sufficient power of sale. Human v. Devereux, 63 
 N. 0. E. 624. 
 
 2. Where a mortgage contains a provision like the above, 
 it is not according to the course of Courts of Equity to inter- 
 fere with a proposed sale in compliance with the terms of the 
 deed ; especially where the security is deficient iu amount, 
 and the mortgagor probably insolvent. Ibid. 
 
 3. The assignee of a bond secured by mortgage, is entitled 
 (nothing more appearing) to the benefit ot the mortgage. 1 bid. 
 
MORTGAGE. 339 
 
 4. If a bond secured by mortgage be renewed, the new- 
 bond retains the same security. Ibid. 
 
 5. A was assignee of a mortgage creditor, and at a sale 
 by the mortgagee, made under a power in the deed, bought 
 the land mortgaged ; B had previously purchased the mort- 
 gagor's interest in the laud, and then had let the laud for a 
 year to C, who was in possession : held, that A, upon making 
 demand tor possession upon C, could recover from him rent 
 due for the year of his tenancy. Jones v. Hill, 64 K. 0. R. 198. 
 
 6. Also, that C had a right to enquire, by an account in 
 the case, whether the price given by A upon his purchase 
 exceeded the amount due to him as assignee of the creditor, 
 and if so, then, as representing B, probably C might have 
 the benefit of the surplus for the purpose of his defence. 1 bid. 
 
 7. When a debtor conveys realty to a creditor by deed 
 absolute in appearance, and at the same time gives his note 
 for the amount of such indebtedness, and takes a bond for 
 title upon the payment of such uote : held, that such transac- 
 tion is a mortgage, ltobinson v. Willoiighby, 65 N. 0. R. 520. 
 
 8. To determine whether a transaction is a mortgage or 
 a defeasible purchase, it will be regarded as the former, if at 
 the time of the supposed sale the vendor is indebted to the 
 vendee, and continues to be such with a right to a re-couvey- 
 auce upou the payment of such indebtedness. Ibid. 
 
 9. A court of equity will never decree a foreclosure of a 
 mortgage until the period limited for payment has expired. 
 It cauuot shorten the time given, by express coveuaut and 
 agreement between the parties, as that would be to alter the 
 nature of the contract to the injury of the party affected. 
 Harshaw v. McKesson, 66 N. C R 266. 
 
 10. When a mortgage is executed, and it is stipulated 
 that if the mortgagor "shall well and truly pay and discharge 
 said debts according to agreement — the one-third part in 
 three years, one-third in four years, and the remainder in 
 five years from date, then the said deed to be void r : htld r 
 that the said mortgage cauuot be foreclosed until the last 
 period mentioned, viz : five years. Ibid. 
 
 11. If the said deed had stipulated that the estate should 
 be forfeited ou the failure to pay the specified instalments of 
 debts, then ou said failure the mortgagee could have called 
 for his money or proceeded to foreclose. Ibid. 
 
 12. Where a bill to foreclose a mortgage is filed against 
 several d< lendants, some of whom claim a portion of the 
 lands described in the pleading under a prior mortgage, and 
 they do not ask that the same be sold : held, that it is error 
 
340 MOKTGAGE. 
 
 to decree that said mortgaged premises be sold for the benefit 
 of the said defendants. Ibid. 
 
 13. Upon the execution of a mortgage, the mortgagor 
 becomes the equitable and the mortgagee the legal owner, 
 and this relative situation remains until the mortgage is re- 
 deemed or foreclosed. Hemphill v. Boss, 60 N". 0. R. 477. 
 
 14. Until the day of redemption be past, the mortgagor 
 has a legal right, and after, an equity of redemption Ibid. 
 
 15. A mortgagor allowed to remain in possession, by the 
 long acquiescence and implied approval of the mortgagee, is 
 not trespasser but a permissive occupant, and as such is en- 
 titled to reasonable demand to terminate the implied license 
 before an action can be brought to recover possession. Ibid. 
 
 16. A purchaser of the mortgagor's estate under execu- 
 tion and (where he had leased,) his lessees aie entitled to the 
 right of the mortgagor. Ibid. 
 
 17. Where a person had become tenant from year to year 
 to a mortgagor, before the execution of the mortgage deed, in 
 which three, four and five years had been given for the pay- 
 ment of equal instalments of the bonds secured by it, and 
 afterwards had become the tenant of the mortgagor's right 
 of redemption : it teas held, that though four years had 
 elapsed irom the date of the mortgage, and no payment had 
 been made on the bonds, yet the mortgagee could not re- 
 cover the possession of the land from such tenant without 
 giving him a reasonable notice to quit ; and further that he 
 was not bound to give him six months notice because of his 
 attornment to a landlord other than the mortgagor. Hem- 
 phill v. Giles, m N. 0. R 512. 
 
 18. A vendor who contracts to convey upon payment of 
 the purchase money is, as between the parties, a mortgagee. 
 Ellis v. Hussey, 0<> N. C. E. 50 L 
 
 19. It is well settled that a mortgagee possesses two rem- 
 edies which he may prosecute at the same time, namely, one 
 in personam the other in ren to subject the mortgaged prop- 
 erty to its payment by foreclosure ; and a resort to the first 
 does not amount to a waiver of the second, or vice versa. 
 I bid. 
 
 20- The two actions are not for the same cause and a dif- 
 ferent relief is obtained in each, and this continues to be the 
 ease, notwithstanding that a single court grants all the relief 
 which was sought in two. Ibid. 
 
 21. A mortgage by a buggy-maker, of " ten new buggies," 
 without delivery of possession, he having more than ten on 
 hand at the time, was ineffectual to pass title to any partic- 
 
MORTGAGE. 341 
 
 ular buggies or to any interest on the buggies on hand ; and 
 the mortgagee cannot maintain an action for the recovery of 
 ten new buggies in the possession of the mortgagor, or his 
 personal representatives. A fortiori is this the case, if such 
 buggies were not the same that were on hand at the date of 
 the mortgage. Blakeley v. Patrick, 67 N. 0. R. 40. 
 
 22. When the terms of the condition of a mortgage relate 
 to future liabilities only : held, that a stipulation reciting that 
 it was understood, "that S. (the mortgagee) shall not become 
 surety for H., (the mortgagor) for more than $1,200, inclu- 
 ding claims heretofore signed by said S," and directed to 
 " sell and pay off all liabilities for which said S. may be liable 
 for him," (the said H.,) do not operate to extend the secu- 
 rity to past liabilities. Stokes v. Hoiverton, 67 N". 0. R. 50. 
 
 23. Where a mortgage is impeached for fraud, in that, 
 the execution of it was obtained through talse and deceitful 
 representation, it is competent for the mortgagee (the plain- 
 tiff) to prove that the mortgagors executed the same of their 
 own accord, and without solicitation on his, the mortgagee's 
 part, as facts and circumstances to go to the jury for the 
 purpose of disproving the allegations of fraud. The weight 
 to be given to such evidence is altogether a question for the 
 jury. Blackwell v. Cummings, 68 N". 0. R. 121. 
 
 24. Where, by the finding of a jury, it is left an open 
 question, whether a certain debt secured by a mortgage has 
 not been in part paid, the mortgagor, or those representing 
 him, have the right to have the fact of such payment and its 
 proper application at the time made, found by the jury; and 
 for that purpose, the case will be remauded from this court, 
 and the issue made up and responded to by a jury in the 
 court below. Barnes v. Brown, 69 N". 0. R 439. 
 
 25. Since the statute of 1821), deeds iu trust and mort- 
 gages are of no validity whatever, as against purchasers for 
 value and creditors, until they are registered ; and they take 
 effect only from and after the registration. ]S r o notice, how- 
 ever full and formal, will supply the place of registration. 
 Robinson v. Willoughhj, 70 N. 0. 11. 358. 
 
 See (Pleading in equity — Decree 6, 7.) (Trusts and Trus- 
 tees, 42, 43 ) (Widow— Of her dower, 31.) 
 
342 MUNICIPAL, &c— NATURALIZATION. 
 
 MUNICIPAL CORPORATION. 
 
 1. A municipal corporation may be sued in any form ap- 
 propriate to the form of action ; its liabilities does not, as 
 repects the form of action, differ from that of a private cor- 
 poration, or an individual. Winsloiv v. Comm'rs dx., 64 
 N. 0. E. 218. 
 
 2. Therefore, an action, in the form usual upon money 
 demands, was sustained against a county for a debt due on a 
 contract in regard to bridge building. Ibid. 
 
 3. Semble, that the plaintiff, upon a proper prayer for 
 judgment, might, in such a case, have had a mandamus, to 
 compel the defendant to levy a tax, and pay his debts. Ibid. 
 
 4. Distinction between Corporations and quasi-Gorpora,- 
 tions, stated. Ibid. 
 
 5. Methods of satisfying judgments against municipal 
 corporations, considered and discussed. Ibid. 
 
 See (Bonds — Of the transfer of bonds, 1.) (Mandamus, 
 31.) (Public Law, 37.) 
 
 NATURALIZATION. 
 
 1. The act of Congress of the 10th of February, 1865, on 
 Naturalization by the expression "Any woman who might 
 lawfully be naturalized under the existing laws," — means 
 only, any woman, being a free white person, and not an alien 
 enemy; therefore, where a descent was cast upon the 20th of 
 May, 1863, a woman who in 1857 had married in Ireland a 
 naturalized citizen of the United States, could inherit, al- 
 though she had always resided in Ireland, and continued to 
 do so until alter the descent cast. Kane v. McCarthy, 63 
 N. C. E. 299. 
 
 2. In the same act, the expression, "Married or who shall 
 be married to a citizen of the United States," casts a descent 
 in the above case, upon a woman who, having been born an 
 alien, in 1851 married another alien, who declared his inten- 
 tion to become a citizen in 1853, and was naturalized in 1856. 
 Hid. 
 
 3. One who, at the death of the ancestor, had filed a de- 
 claration of an intention to become a citizen of the United 
 States, but was naturalixed subsequently to such death, is 
 not capable of inheriting. Harman v. Farrell, 64 N. C. E. 474. 
 
NEGLIGENCE.— NEW TRIAL. 343 
 
 NEGLIGENCE. 
 
 See (Action on the case — Where it will lie, 1, 2, 3, 4, 5, 6, 
 7, 8.) 
 
 NEW TRIAL. 
 
 1. Illustration of the difference in the duty of the court 
 in an application for a new trial in cases where there is slight 
 evidence, and in those where there is none. State v. Soivls, 
 Phil. L. R. 151. 
 
 2. After verdict the defendant cannot object that evi- 
 dence was improperly admitted, if he did not except when it 
 was introduced. State v. Smith, Phil. L. R. 302. 
 
 3. When a verdict upon issues sent for trial from this 
 Court to a Superior Court, is, in the opinion of the Judge 
 who presided, contrary to the weight of the evidence ; or in 
 case of any other miscarriage by the court, or the jury, such 
 •Judge has full power to grant a new trial. Rogers v. Good- 
 u-in, 64 N. C. R. 278. 
 
 4. It appears that, under the 0. C P., sec. 299, which 
 allows an appeal to the Supreme Court from an order of the 
 Superior Court granting or refusing a new trial, the Supreme 
 Court may grant a new trial, because of the refusal of the 
 continuance of his cause to a party by the Superior Court, 
 wherein by law he was entitled to it, or where the refusal 
 was manifestly unjust and oppressive, and merits were proven. 
 Ex. Bank of Columbia v. Tidily, 67 N. C. R. 469. 
 
 5. The rejection of evidence not material to maintain or 
 disprove the point in issue, is no ground for a new trial. 
 Carrier v. Jones, 68 N. C. R. 130. 
 
 6. To allow a witness after objection, to give a history 
 of how he became indebted to a party in a suit, when such 
 indebtedness had no relation to the point in issue, is error, 
 and is a proper ground for a new trial. Hislop v. Hoover, 
 68 N. C. R. 141. 
 
 7. The refusal of a Judge of the Superior Court to grant 
 a new trial on the ground of newly discovered evidence is 
 such a matter of discretion that this Court will not review 
 it. MCuUocek v. Book, 68 N. C. R. 267. 
 
 8. A charge by the Judge below, '' that the deed " from 
 the grantor to the grantee " would have been a sufficient de- 
 fence had not the insolvency, or at least the very great in- 
 
344 NEW TRIAL. 
 
 debtedness of the grantor, at the time, been established, 
 which presumptively tainted the deed with fraud, whereby 
 it devolved on the defendants," (claiming under the deed,) 
 " to show affirmatively that the sale from the grantor to the 
 grantee was a fair, honest and bona fide transaction," when 
 warranted by the facts, is no ground for a new trial. Ibid. 
 
 9. A charge, ''that while in all cases it was pleasant to 
 reconcile testimony, here there was no chance to do so. 
 That one or the other of the parties, it was plain, had com- 
 mitted perjury, and the jury must meet the case fairly, and 
 decide which of the parties had sworn to the truth," gives 
 no intimation whatever from his Honor, which witness the 
 jury are to believe, and is therefore no ground for a new 
 trial. Critcher v. Hodges, 08 N. 0. B. 22. 
 
 10. Tampering with a juror, during the progress of a 
 trial, by any one, is a sufficient reason for setting aside the 
 verdict. Love v. Moody, 08 K 0. E. 200. 
 
 11. When an appeal is taken from the Superior to the 
 Supreme Court, a proceeding to obtain a new trial on account 
 of newly-discovered testimony cannot be instituted in the 
 Superior Court, but must be brought in the Supreme Court, 
 and upon a proper case that court will remand the cause so 
 that the Superior Court may take jurisdiction and proceed 
 to do what may be light. But if the newly-discovered testi- 
 mony applies to only a part of the judgment, the Supreme 
 Court will retain the cause and order proper issues to be 
 made up upon the alleged newly-discovered testimony and 
 sent down for trial in the Superior Court, and will impose 
 such terms upon the applicant for the new trial as may be 
 deemed proper. Bledsoe v. Nixon, 09 N. U. E. 81. . 
 
 12. The rules in relation to applications for new trials 
 upon which they are founded, discussed and explained in the 
 opinion filed by the Chief Justice. Ibid. 
 
 13. Entries in a book showing a state of facts not mate- 
 rially different from those appearing on a trial, will not enti- 
 tle one of the parties to have the judgment set aside and a 
 new trial, although the existence of such entries was unknown 
 at the trial aud was subsequently discovered. Tull v. Pope, 
 09 N. C. B, 183. 
 
 14. Granting a new trial because of newly-discovered 
 evidence must necessarily always, or nearly always, be within 
 the discretion of the presiding Judge, and his decision can 
 very rarely in such cases, be on a naked matter of law or 
 legal inference, so as to authorize an appeal. Holmes v. 
 Goodwin, 09 N. C. E. 407. 
 
NEW TEIAL. 345 
 
 15. In an action against a sheriff for negligence aud not 
 using due diligence in endeavoring to collect a judgment, the 
 execution on which had been regularly placed in his hands, 
 the defence being that the execution was held up by direc- 
 tion of the plaintiff ; and on the trial the jury find all issues 
 in favor of the defendant : held, that it was no grouud for a 
 new trial, that the jury failed to give the plaintiff nominal 
 damages, under the instructions of the Court. Foust v. 
 Stafford, 70 N. 0. R. 115. 
 
 10. It is uo grouud for a new trial, that the defendant's 
 counsel made a mistake in admitting in the answer the exist- 
 ence of a certain contract, which mistake was not discovered 
 until after the trial, aud his Honor did right in refusing it. 
 Aston v. Craig miles, 70 N. 0. E. 316. 
 
 17. To vitiate and avoid a verdict, it must appear upon 
 the record that undue influence was brought to bear on the 
 jury. All other circumstances of suspicion address them- 
 selves exclusively to the discretion of the presiding Judge, in 
 granting or refusiug a new trial, which discretion is not a 
 proper subject of review by this court. Moore v. Edmiston, 
 70 X. C. E. 471. 
 
 18. To give parties the benefit of the provision of sec. 
 299, C. 0. P. allowing an appeal from an order granting or re- 
 fusing a new trial, the presiding Judge should put upon the 
 record the matters inducing the order, so that this court can 
 see whether the order presents a matter of law which is a sub- 
 ject of review, or matter of discretion which is not. Ibid. 
 
 19. The court, during the trial, took a recess, when the 
 jury separated and dispersed, the defendant not objecting, 
 nor his Honor charging them not to do so, nor cautioning 
 them against conversing with any one concerning the pend- 
 ing case: held, to be no grouud for a new trial. Bullinger v. 
 Marshall, 70 N. 0. Ii. 520. 
 
 20. Held further, that the defendant being disappointed 
 by a witness who told him the day before the trial that he, 
 the witness, would, if examined, give him, the defendant, a 
 good character, and which the witness did not do, is not such 
 a surprise as to entitle the defendant to a new trial Ibid. 
 
 21. The Supreme Court has no power to grant a new 
 trial because a verdict is found upon insufficient testimony, or 
 against (he weight of testimony. The sufficiency of the testi- 
 mony offered is a question exclusively for the jury. Whether 
 a verdict is against the weight of the testimony is a matter 
 exclusively for the discretion of the Judge who presides at 
 the trial. State v. Storlcey, 63 \. C. R 7. 
 
 See (Jury — Of the challenges to the Jury, 16.) 
 
346 NOTICE— OFFICE AND OFFICER. 
 
 NOTICE. 
 
 1. One who is put upon inquiry by certain facts within 
 Lis knowledge, is aftected with notice of everything that such 
 inquiry would have discovered. May v Hanks, Phil. Eq. R. 
 310. 
 
 2. In the absence of deliberate fraud upon the part of the 
 owner, the title to an equitable estate in land is not bound by 
 his conduct, as creating an estoppel-in-pais. Ibid. 
 
 3. There is a marked distinction between cases where no- 
 tice is necessary as preliminary to the action, to enable the 
 defendant to pay and save the costs of the action, and case 
 where notice is necessary to constitute a cause of action. 
 Bryan v. Heck, 67 BT. C. R. 322. 
 
 4. Where a motion is made by a party to set aside a judg- 
 ment, notice must be given to the adverse party. Seymour 
 v. Cohen, 67 N. C. R. 345. 
 
 5. The five clays' notice which was required by the 21st 
 section of the C. C. P , previous to a motion for judgment on 
 account of a frivolous demurrer, answer or reply, is not appli- 
 cable since the C. C. P. has been suspended and the summons 
 in civil action is made returnable to the Court in term time. 
 Now such notice is unnecessary, as the parties through their 
 counsel must take notice, at their peril, of all motions and 
 steps in the cause Clayton v. Jones, 68 N. C. R. 497. 
 
 6. Neither the Code of Civil Procedure, sec. 72, nor the 
 proviso in the Act of 1870, chap. — , requires notice to be 
 given the adverse party, on an application for permission to 
 defend a suit without giving the required securitv. Deal v. 
 Palmer, 68 N. C. R. 215. 
 
 OFFICE AND OFFICER. 
 
 1. A civil action in which the plaintiff in his own name 
 sets forth in his complaint that he is a tax collector for a cer- 
 tain county, and that the defendant has usurped the office, 
 aud has unlawfully received the fees and emoluments thereof, 
 cannot be brought under the 189th section of the C. C. P., 
 aud thereby obtain an injunction to restrain the defendant 
 from acting in said office. Patterson v. Hubbs, 65 N. C. R. 
 119. 
 
 2. The 189th section of the C. C. P., which provides as 
 to a civil action that ''when, during the litigation it shall 
 
OFFICE AND OFFICER. 347 
 
 appear that the defendant is doing or threatens, or is about 
 to do, or procuring or suffering some act to done in violation 
 of the plaintiff's rights respecting the subject of the action, 
 and tending to render the judgment ineffectual, a temporary 
 injunction may be granted to restrain such act," does not 
 apply to cases of the usurpation of a public office, but is con- 
 fined to cases where some private right is a subject of con- 
 troversy, and the act sought to be restrained would produce 
 injury to the alleged right of the plaintiff during the litiga- 
 tion. Ibid. 
 
 3. When the subject of controversy is the right to a 
 public office, the action should be brought by the Attorney- 
 General, under the 3G(ith section of C. 0. P., in the name of 
 the people of the State, and if it be brought against a per- 
 son for usurping a public office, the Attorney-General, in 
 addition to the statement of the cause of action, " may also 
 set forth in the complaint the name of the person rightfully 
 •entitled to the office, with a statement of his right thereto; 
 and in such case, upon proof by affidavit that the defendant 
 has received fees or emoluments belonging to the office, 
 and by means of his usurpation thereof, an order may be 
 granted by a Judge of the Supreme Court for the arrest ot 
 such defendant, and holding him to bail ;" as in other civil 
 actions where the defendant is subject to arrest. Ibid. 
 
 4. ''The Governor shall nominate, and by and with the ad- 
 vice and consent of a majority of the Senators elect, appoint 
 all officers, whose offices are established by this Constitution, 
 or which shall be created by law, or whose appointments are 
 not otherwise provided for, and no such officer shall be ap- 
 pointed or elected by the General Assembly." Section 10, 
 Article 3, Constitution. The words contained in the above 
 section of the Constitution, " whose appointments are not 
 otherwise provided for," mean provided tor by the Constitu- 
 tion, and the words "no such officer shall be appointed or 
 elected by the General Assembly," are superadded as an ex- 
 press veto upon the power of the General Assembly, whether 
 such office shall be established by the Constitution or be 
 created by an Act of the General Assembly. Clark v. 
 Stanley, 66 N. C. R. 59. 
 
 5. A public office is an agency for the State, and the per- 
 son whose duty it is to perform that agency, is a public offi- 
 cer. Nor does it make any difference whether he receives a 
 salary and fees and takes an oath, these being mere incidents 
 and no part of the office itself. Nor is it material whether 
 one act or a series of acts are required to be done. Ibid. 
 
348 OFFICE AND OFFICER. 
 
 6. The Act of the General Assembly, passed April 6tb, 
 1871, giving to the President of the Senate and the Speaker 
 of the House of Representatives, the power to appoint ''all 
 proxies and directors in all corporations in which the State 
 has an interest," creates a public office and tills the same by 
 appointment of the Legislature. It is, therefore, unconstitu- 
 tional. Ibid. 
 
 7. The power of the General Assembly to repeal an act, 
 which had been passed since the adoption of the Constitution, 
 and accepted by the Railroad Company as an amendment to 
 their charter, discussed by Pearson, C. J. Ibid. 
 
 8. The Legislature, like the other departments of the 
 State government, acts under a (/rant of powers, and cannot 
 exceed that grant. People ex rel. Nichols el al. v. McKee et 
 al, G8 N". C. R. 429. 
 
 9 . There is no express grant of power to the legislative 
 department to appoint to office; but there is an express pro- 
 hibition. Ibid 
 
 10. The general appointing power is given to the Governor 
 with the concurrence of the Senate ; the power to fill the va- 
 cancies, not otherwise provided for, is given to the Governor 
 alone, and that whether the Legislature is in session or not, 
 and without calling the Senate. Ibid. 
 
 11. The Directors of the Institution for the Deaf and 
 Dumb and the Blind are officers, made so by the Constitu- 
 tion and so called. The Legislature has no right to appoint 
 such directors. Ibid. 
 
 12. Persons licensed to trade under the revenue laws of 
 the United States are not officers of the United States. 
 State v. Bell, Phil. L. R. 76. 
 
 13. Public officers who have not taken the required oath 
 of office are not entitled to the salaries attached to such 
 offices. Wiley v. Worth, Phil. L. R 171. 
 
 14. The charter of a town requiring the officers to be 
 elected, persons cannot claim to be de facto officers of that 
 town who have never been elected, but they are mere usui- 
 pers, and the corporation is not liable for contracts made by 
 them in the name of the town. Keeler v. Newbern, Phil. 
 L. R 505. 
 
 15. Upon the order of General Schofield (April 27, 18G5), 
 announcing the subjugation of North Carolina, all persons 
 who had been civil officers in the State ceased to be such de 
 facto as well as de jure. Cooke v. Coolie, Phil. L. R. 583. 
 
 16. A Justice of the Peace lias no power to depute a sp< - 
 c'al officers to execute civil process. Mamie v. Williams, 03 
 N. 0. R. 371. 
 
OFFICE AND OFFICER. 349 
 
 17. The right of a de facto officer to hold his office, can- 
 not be questioned collaterally — as, here, by objecting to an 
 answer purporting to have been sworn to before him. Cul- 
 ver v. Eggers, 63 N". C. R. 630. 
 
 18. The Trustees of the University, the Directors of the 
 Penitentiary, of the Lunatic Asylum and of the Institution 
 for the Deaf and Dumb and the Blind, aie public officers. 
 People ex rel. Welker et at. v. Bledsoe et al., 68 N". C. R. 457. 
 
 19. By virtue of Art. 3, sec. 10, of the Constitution, the 
 Governor shall nominate, and by and with the advice and 
 consent of a majority of the Senators elect, appoint the 
 Directors of the Penitentiary, and such other officers as are 
 therein prescribed. Ibid. 
 
 20. An officer elected by the people holding over his 
 regular term on account of the failure of his successor to 
 quality, holds over until the place is tilled at " the next gen- 
 eral election" by the people. People ex rel Battle v. Mclver, 
 68 X. C E. 467. 
 
 2t. The Governor never nominates to the Senate to fill 
 vacancies. He does that alone in all cases. Ibid. 
 
 22. Where officers have to be appointed to fill a regular 
 term, then he nominates to the Senate, unless it be an officer 
 who is elected by the people, and then he never nominates 
 to the Senate, but tills the vacancy or term by his own ap- 
 pointment (unless there is an officer holding over) until the 
 people can elect. Ibid. 
 
 23. The Legislature cannot authorize the presiding offi- 
 cers of its two branches to appoint proxies and directors in 
 behalf of the State in corporations in which the State has an 
 interest ; nor can the Legislature itself make such appoint- 
 ments, for the reason that it would be an usurpation of exec- 
 utive power, State ex rel. Howerton v. Tate, 68 N. C. R. 546. 
 
 24 The Legislature by the Acts of 13th February, 1871, 
 and 6th of April, 1871, having assumed to take the appoint- 
 ment of directors for the State of the Western "North Caro- 
 lina Railroad from the Governor, it thereby dispensed with 
 the necessity of his sending nominations to those offices to 
 the Senate and left the Governor to pursue the law as he 
 could. Ibid. 
 
 25. The Act of 1 869-'70, chap. 43, repeals the Act estab- 
 lishing the office of Public Printer; and the Public Printer 
 as now provided for, is not an officer within the meaning of 
 The Constitution. Brown v. Turner, 70 X C. R. 93. 
 
 26 When the question of the right, or title to an office 
 is put in issue, mandamus is not the form of action, the ap- 
 
350 OFFICE, &c— ORDINANCES, &c— OVERSEER 
 
 propriate remedy being an action in the nature of a quo war- 
 ranto; nor will mandamus lie, when two persons claim the 
 same duty adversely to each other, against a third party. Ibid. 
 
 27. Any person having a right to an office, can in his 
 own name, bring an action for the purpose of testing his right 
 as against one claiming adversely. 1 bid. 
 
 28. A person who is rightfully entitled to an office,, 
 although not in the actual possession thereof, has a property 
 therein, and may maintain an action for money had and re- 
 ceived, against a mere intruder, who may perform the duties 
 of such office for a time and receive the fees arising there- 
 from ; and such intruder cannot retain any part of the 
 fees as a compensation for his labor. Howerton v. Tate, 70 
 N. C. R. 161. 
 
 See (Constitution, 28, 29, 30, 31.) (Mandamus. 1, 18, 19, 
 20, 30.) Special courts in cities and towns, 11, 12 ) 
 
 ORDINANCES OF THE CONVENTION. 
 
 1. A note given to C, in 1866, by A as principal, and B 
 as surety, in payment for certain notes made in 1864 by B to 
 C, which in 1866 were purchased by A from C, is a new con- 
 tract by A and B, and not one "in renewal of or a substitute 
 for" the contracts of 1864, within the 5th section of the Or- 
 dinance of March 14th, 1868. Hood v. Froneberger, 63 N. 
 C. R. 35. 
 
 2. A surety to a note made in 1861 having paid it off iu 
 1866 : held, that his claim on that account against his prin- 
 cipal was not included in the Ordinance of June, 1866, which 
 conferred exclusive jurisdiction on the Superior Courts in re- 
 gard to all actions on contracts made prior to May 1, 1865. 
 Smith v. Moore, 63 N. C. II. 138. 
 
 OVERSEER. 
 
 An overseer who contracts to carry on a farm for the own- 
 er at a fixed salary for t lie year, is entitled to recover for the 
 value of his services, where be quits his employer before the 
 expiration of the year, because this employer sells out the 
 plantation, stock and crop, and directs the overseer to remain 
 and carry out the contract with the purchaser of the planta- 
 tion. Woodley v. Bond, 66 N. O R. 396. 
 
PARDON— PARTITIONS. 351 
 
 PARDON. 
 
 An appeal by the defendant in a criminal case to the Su- 
 preme Court, vacates the judgment below ; therefore, in such 
 a case, where the Supreme Court had decided that there 
 was no error, and, upon the transcript beiug returned, the 
 Solicitor moved for judgment: held, that the defendant, 
 upon produciDg an unconditional pardon, had a right to be 
 discharged, without paying costs. State v. Underwood, 64 
 N. 0. R, 599. 
 
 See (Amnesty.) 
 
 PARTITIONS. 
 
 1. The sums charged upon '* the more valuable divi- 
 dends," in partitions of lands under the Kev. Code, ch. 82, 
 are charges, not upon the persons of the owners of such divi- 
 dends, but upon the land alone. Young v. Davidson College, 
 Phil. Eq. R. 261. 
 
 2. Where in a petition for partition of land, the tract was 
 described by metes and bounds, and title was claimed under 
 a patent to J. M., which was referred to as an exhibit, but 
 the date of which was incorrectly stated, and the answer of 
 the defendant admitted, that he claimed title to a tract of 
 land of similar course and distances with that described in 
 the petition, patented to J. M., November 6th, 1784, and 
 alleged that if the identity of the land was ascertained by 
 survey, then he was a tenant in common with the petitioner ; 
 otherwise not : held, that while it would have been more reg- 
 ular to require the plaintiff to amend his petition by giving 
 the true date of the grant, and allow the defendant to amend 
 his answer, it was not error to permit the plaintiff to pro- 
 duce the grant as an exhibit at the hearing, without such 
 amendment, and order the partition. Wright v- McCormick, 
 67 N. C. R. 27. 
 
 3. In a petition for partition, if the plea of "sole seizure " 
 is not put in before the order of partition is made, it will be 
 considered as waived, and the parties to the proceeding will 
 be taken to be tenants in common. Wright v. McCormick, 
 69 X. C. R. 14. 
 
 4. In a proceeding for partition in which the petition sets 
 forth a particular description of the land, aud upon an order 
 
352 PAETITIONS.— PAETKEBSHIP. 
 
 for partition the commissioners appointed to make it return 
 a report of their proceedings in the division of the laud, and 
 the defendant objects to the confirmation of it, upon the al- 
 legation that they have not divided the land described in the 
 petition, he cannot complain of an order of the Judge refer- 
 ing it to the clerk to take and state evidence with regard to 
 the identity of the land. Ibid. 
 
 5. A, B and G are tenants in common of a tract of land; 
 dies in debt, and his widow becomes administratrix. A 
 and B riled their petition for a partition of the land in three 
 parts : held, that the widow of being entitled to dower, 
 and also as representing the creditors of was a necessary 
 party to such petition, both as widow and administratrix. 
 Gregory v. Gregory, 69 N. C. E. 522. 
 
 6. In a petition for partition of a tract of land consist- 
 ing of twelve and three-fourths acres, worth $109.40; the 
 commissioners appointed for the purpose, having divided the 
 tract into three parts, worth respectively the dwelling house 
 share, $144.15, and the two others, $34 and $21.25: held, 
 in such case an actual partition with a reasonable equality of 
 values could not be made without impairing the value of 
 some of the shares, and that the Court ought to have or- 
 dered the land to be sold for an equal division. Ibid. 
 
 PARTNERSHIP. 
 
 1. A partner, who undertakes to wind up the business, 
 stands in the place of an executor, and therefore can estab- 
 lish disbursements only by vouchers properly authenticated. 
 Clements v. Mitchell, Phil. Eq. E. 3. 
 
 2. Eeal estate owned by a partnership is not regarded in 
 this State as personalty. Furguson v. Hass, Phil. Eq. E. 113. 
 
 3. A partner who, upon a dissolution of the firm, under- 
 takes to collect the debts, is bound only to the dilligence of a 
 collecting agent, and so is responsible for all that it can be 
 shown that he collected, or might with reasonable diligence 
 have collected. It is an error to throw upon him the burden 
 of proving what accounts in his hands were bad. Phelan v. 
 Hutchinson, Phil. Eq. E. 110. 
 
 4. Iu taking a partnership account, items of debt by the 
 partners to the firm are to be deducted out of the shares of 
 such partners respectively, and not out of the assets of the 
 firm. Ibid. 
 
PAETNEESHIP. 353 
 
 5. Q hop re, Whether the principal established in Boyd v. 
 Hawkins, 2 Dev. Eq , 32!), as regards co amissions to trustees, 
 <S:c, be not applicable to a surviving partner who settles up 
 the partnership business. 1 bid. 
 
 6. A transfer, iu terms absolute, of all the effects of a firm, 
 {consisting of goods and choses in action of an unascertained 
 value) having been made in the firm named by one partner 
 without the consent of his co-partner, for a certain sum, being 
 the amount of the firm debts; held, not to be absolute, but 
 only a security for the firm debts. High v. Lack, Phil. L. E. 
 175, 
 
 7. Aso held, that any surplus after payment of the firm 
 debts belonged to the individual members of the firm. Ibid. 
 
 8. Therefore, an injunction granted at the instance of the 
 non-assenting partner should be continued to the hearing, 
 and in the meantime a receiver should be appointed. Ibid. 
 
 9. When a partnership at its dissolution was much in 
 debt, and the estate of the deceased partner was insolvent, 
 held, that the fact that a tract of land owned in common by 
 the partners was probably a part of the firms assets, was suffi- 
 cient ground for au injunction in favor of the surviving part- 
 ner, forbidding the administrator of the deceased partner 
 from proceeding under au order to sell such land by license 
 from the county court, in order to pay the separate debts of 
 his intestate. Williams v. Moore, Phil. Eq. E. 211. 
 
 10. One of two partners having died, and the survivor 
 and a third person having been appointed administrators on 
 his estate, a bill filed by such surviving partner against his 
 co-administrator for a settlement of the affairs of the firm, 
 is demurrable and will be dismissed. Smith v. Bryson, Phil. 
 Eq. E. 207. 
 
 11. Where some of the executions were against a firm, 
 and others against O., one of its members: held, as the prop- 
 erty sold was firm property, and insufficient to satisfy the 
 former class of executions, the money should be divided pro 
 rata amongst those, in exclusion of the latter class. Roberts 
 v. Oldham, G3 N. 0. E. 21)7. 
 
 12. Also, that the fact that one of the firm creditors was 
 secured by a mortgage upou the separate property of O., 
 had no effect in postponing his right to the proceeds in the 
 hands of the sheriff. Ibid. 
 
 13. Where an oral contract was made with the three 
 members of a partnership personally : held, that they could 
 recover upon it iu their joint names, without regard to the 
 
 23 
 
354 PARTNERSHIP. 
 
 style of their partnership, although this had been set forth 
 in the writ. Palm v. Small, 63 N. 0. R. 484. 
 
 14. In an action for the value of lumber delivered by a 
 firm, the acceptance thereof by the defendant is evidence of 
 privity of contract between the parties. Broadus v. Evans y 
 03 N. 0. R. 633. 
 
 35. One partner cannot, without the consent of his co- 
 partner, agree to receive payment for goods sold by the firm, 
 in debts due by himself individually. Ibid. 
 
 16. Where a partnership is formed for a definite term, 
 which has not expired, the Court will not decree a dissolu- 
 tion except under special circumstances ; neither will it, 
 where circumstances render a dissolution inconvenient, as 
 where a large operation has been commenced, which cannot 
 be arrested without serious loss. But, where the Court does 
 order a dissolution, it will appoint a receiver upon a dis- 
 agreement between the partners in the course of the wind- 
 ing up ; and the same rule must apply where a dissolution 
 has taken place by consent or otherwise, and a serious dis- 
 agreement arises afterwards. Richards v. Baurman, 65 N» 
 0. R. 162. 
 
 17. If a partner purchases property with the partnership 
 effects, and sells said property to a bona fide purchaser with- 
 out notice, the other party cannot follow the property in 
 the hands of such purchaser. Chiply v. Keaton, 65 N. C. R. 
 534. 
 
 18. The declarations of a supposed partner, in the absence 
 of the other, are not admissible against the latter until the 
 partnership has been proved aliunde. McFayden v. Har- 
 rington, 67 N. C. R. 29. 
 
 19. When one partner, who is insolvent or in failiug cir- 
 cumstances, without the consent and against the will of the 
 other partner, is disposing of the effects of the partnership, 
 and appropriating them to his own use, the other partner 
 has the right to an injunction, and to have a receiver ap- 
 pointed. Phillips v. Trezevant, 67 N. C. R. 370. 
 
 20. If one buy goods of a manufacturing company from 
 time to time, and sell them on his account, the compauy not 
 participating in his profits, nor being liable for his loss, it does 
 not afford the slightest evidence of a partnership between 
 him and the company. Gilbreath & Co. v. Lineberger & Co., 
 69 N. C. R. 145. 
 
 21. A, as surviving partner of A and B, sold in 1863, cer- 
 tain cotton belonging to the firm, on a credit of six months, 
 the purchase money to be paid when due in funds current at 
 
PARTNERSHIP.— PAYMENT. 353 
 
 the time. 0, also a partner of A in another business, bought 
 the cotton, giving A, the surviving partner, a note for the 
 amount, to-wit : $5,081.20, which amount was paid to A 
 when the note became due, whereupon A tendered to D, the 
 administrator of B, the deceased partner, one half of the 
 cotton money, to-wit : $2,840.00, which D refused to receive, 
 and funded the amount in Confederate 4-per cent, bonds, 
 holding the bonds for D's benefit. In a suit by D against A 
 for a settlement of the copartnership, and in which D seeks 
 to charge A with the whole amount of the cotton sale: It was 
 held, that in a settlement of the co-partnership, A should be 
 allowed as a credit the amount funded in Contederate securi- 
 ties, which was lost, and that he should be charged by the 
 firm with the one-half of the sale, $2,840.09, which he re- 
 tained to his own use!. Thompson v. Rogers, 09 N. O. R. 357. 
 
 22. Held further, that A, the surviving partner, had 
 acted in good faith in a fiduciary character ; the scale as ap- 
 plied to contracts generally does not apply in this case, A 
 being responsible only for the value of the Confederate money 
 at the time he received it. Ibid. 
 
 See (Executors and Administrators — Of their liability to 
 creditors, 7.) (Trusts and Trustees, 49.) (Vendor and Pur- 
 chaser, 0, 7.) (Widow— Of her Dower, 11.) 
 
 PAYMENT. 
 
 1. Payments made on a debt contracted before the late 
 civil war, in confederate currency during the war, are to be 
 taken according to their face values. Having been accepted 
 by the creditor, they amount to a discharge to the extent of 
 their nominal value, notwithstanding the fact that they were 
 made in depreciated currency. Halt v. Craige, 05 N. C. 14. 
 51. 
 
 2 Credits in currency, endorsed as such on a note paya- 
 ble in specie, are payments only to the amount of their value 
 in specie of such credits at the respective dates of payment. 
 Walkup v. Houston, 05 X. O. R 501, 
 
 3. A voluntary payment, with a knowledge of all the 
 facts, cannot be recovered back, although there was no debt; 
 a payment, under a mistake of fact, may. Adams v. Reeves, 
 08 N.O.R. 134. 
 
 4. If one knowing he has no claim upon another, sues 
 out legal process against him and seizes his person or prop- 
 
356 PAYMENT. 
 
 erty, and the defendant, acting upon the false representations 
 of the plaintiff, and not being able at the time by reasonable 
 dilligeme, to know or to prove that such representations are 
 false, pays the demand, he may recover it back in a subse- 
 quent action. Ibid. 
 
 5. Where a party accepts, in full satisfaction of a demand 
 he makes on a sheriff and his sureties for money received 
 through a mistake, a judgment obtained against himself by 
 one of those sureties, which judgment is, at his request, as- 
 signed to his son, and at the same time releases the surety 
 assigning the judgments, " from all responsibility in any way 
 arising out of his being surety," &c, such assignment oper- 
 ates as a payment in full of the demand, and insures to the 
 benefit of his co-sureties aud principal, and is a bar to any 
 action which may be brought against him or them therefor. 
 Ireland v. Tapscott, 68 N. 0. R. 300. 
 
 0. Where A having a bond against principal and surety, 
 and a member of a firm to which A is indebted, who is the 
 yon of the principal of the bond, agrees to take the bond and 
 credit A's account, which is done, and where A said he un- 
 derstood it to be a payment, and where the Judge who tried 
 the cause refused to charge jury that if A understood it to 
 be a payment, it was a payment and they must so find : held, 
 to be do errror. Brem v. Allison, 68 N. 0. E. 412. 
 
 7. When a matter is voluntarily settled by act of the par- 
 ties, in the absence of fraud or mistake, it must be deemed 
 settled forever. Therefore, where the county court of a 
 county, in the year 1802, appointed an agent to borrow money 
 aud purchase salt for the families of soldiers then in the Con- 
 federate army, and in 18C7, ordered the agent to pay to the 
 person from whom the money was borrowed a certain sum, 
 which was done, the Board of Commissioners of such county 
 cannot recover back the money so paid by the agent. Com* 
 m-is of Catawba v. Setter, 70 K 0. R. 426. 
 
 8. Where a debtor owes several debts to a creditor and 
 makes payments, he may appropriate such payments to any 
 of the debts he pleases ; if, however, he fails to do so at the 
 time, the creditor may appropriate them as he pleases, at 
 any time before suit is brought; therefore, where such debts 
 are partly secured by a mortgage of personal property for an 
 amount insufficient to pay all the debts, aud the debtor 
 makes no application of his payments as they are made, the 
 creditor is at liberty to appropriate such payments to such 
 part of the debts as is unsecured, and to hold the property 
 mortgaged liable for the unpaid balance. Jenkins & Co. v. 
 2fcaZ," 70 N. C E. 440. 
 
PAYMENT.— PENITENTIARY.— PERJURY. 357 
 
 9. A receipt for a certain sum, in payment of a lost or 
 mislaid note, discharges only so much of said note as such 
 receipt amounts to. Witherington v. Phillips, 70 N. 0. R. 
 444. 
 
 10. A claim for services alleged to be illegal, when once 
 adjusted and allowed by the parties in a settlement, cannot 
 be set aside for its alleged illegality, when presented by de- 
 fendant as a set-off to the demand of the plaintiff's assignee. 
 Lush v. Patton, 70 N. C. R. 701. 
 
 PENITENTIARY. 
 
 The State is bound, under the act of 18G9-'70, to pay the 
 expenses of conveying couvicts to the penitentiary. The act 
 of 1870-'71, chapter 124, does not repeal the former act in 
 this respect. Taylor v. Adams, 66 N. 0. R. 338. 
 
 See (Office and Officer, 18, 19.) 
 
 PERJURY. 
 
 1. Although one believes the allegation to which he tes- 
 tifies to be true, yet unless he has probable cause for such 
 belief, he may be convicted of perjury. State Y.Knox, PhiL 
 L. R. 312. 
 
 2. In an indictment for perjury, where the defendant is 
 charged with having been sworn ''on the Holy Gospels of 
 God," and it appeared that he was not sworn as charged, such 
 variance is fatal and will entitle defendant to a new trial. 
 State v. Mat. Davis, 69 N. 0. R. 383. 
 
 3. In a criminal action for perjury, it should appear on 
 the face of the indictment that the oath taken was material 
 to the question depending, not by setting forth the circum- 
 stances which render it so in describing the proceedings of a 
 former trial, but a general allegation that the particular 
 question became material. State v. Davis, 69 N. 0. R. 495. 
 
 4. In an indictment for perjury, the question whether or 
 not one of she parties charged with an affray in the indict- 
 ment, upon the trial of which the oath alleged as false was 
 taken, retreated "thirteen or twelve paces" before he returned 
 the blows of the other party, is a material question, the 
 " thirteen or twelve paces" being mere surplusage. So too, 
 
358 
 
 PERJUBY.— PLEADING— I. 
 
 is the question whether or not one of said parties was stricken 
 " two or three times" before striking the other party, the 
 number of times being surplusage, where an averment of a 
 blow would have sufficed. State v. BolMtt, 70 1ST. 0. R. 81. 
 
 5. An averment that the defendant "deposed and gave in 
 evidence to the jury wilfully and corruptly," amounts to a 
 charge that he swore wilfully and corruptly. Ibid. 
 
 6. A traversejjin an indictment, pursuing the words of the 
 defendant in taking the oath is sufficient in an indictment for 
 pei jury. Ibid. 
 
 PLEADING. 
 
 I. 
 
 General principles of pleading. 
 
 VIII. 
 
 II. 
 
 Verification. 
 
 IX. 
 
 III. 
 
 Parties. 
 
 X. 
 
 IV. 
 
 Form of action. 
 
 XI. 
 
 V. 
 
 Joinder of causes of action. 
 
 XII. 
 
 VI. 
 
 Plea of nul tiel record. 
 
 XIII. 
 
 VII. 
 
 Under the Code of Civil Proced- 
 ure. 
 
 XIV. 
 
 Of the complaint or declaration 
 
 Of the pleas and demurrer. 
 
 Plea of a former suit. 
 
 Counter-claim. 
 
 Of the venue. 
 
 Of the verdict and judgment. 
 
 What is cured by a verdict. 
 
 I. GENERAL PRINCIPLES OF PLEADING. 
 
 1. In case of ambiguity and uncertainty in pleading, the 
 words are to be taken most unfavorably to the party using 
 them. Wright v. McCormick, 67 N. 0. R. 27. 
 
 2. That there may be some certainty in judicial proceed- 
 ings, the Supreme Court will not for a moment entertain the 
 consideration of a judgment in favor of a plaintiff given upon 
 a state of facts not alleged in the complaint, and inconsistent 
 therewith. Shelton v. Davis, 69 N. C. R. 234. 
 
 3. The rule that a person cannot take advantage of an 
 allegation of fraud, unless it be made in the pleadings, does 
 not apply to a case agreed where all the facts are stated, and 
 the matters of law or legal inference left to the Court. Mc- 
 Rae, et al. v. Battle, Ex'r, 69 N. C. R. 98. 
 
 4. The answer of a defendaut in an action of slander, al- 
 leging that he did not speak the words as charged, with ma- 
 lice, &c, but that he believed them to be true, stating his 
 reasons for such belief; and further, that he did not admit 
 that the words alleged to be slanderous were spoken within 
 six months of the time of bringing the action, amount under 
 our liberal system of pleading, to the pleas of justification, 
 
PLEADING— II.— HI- 359 
 
 and the statute of limitation. Moore v. Edmiston, 70N.C. 
 E.510 
 
 See (Pleading— Form of Action.) 
 
 n. VERIFICATION. 
 
 A pleading which is amended in a material part after veri- 
 fication, is to be regarded as unverified; therefore, where 
 such pleading was a complaint, an answer thereto need not 
 be verified. Rankin v. Allison, 64 N. 0. E. 673. 
 
 HI. PARTIES. 
 
 1. It is not necessary to make the administrator of the 
 deceased a party to a bill preferred by the next of kin against 
 the University, to recover property which had improperly 
 been paid over to that institution. Oliveira v. University, 
 Phil. Eq. E. 69. 
 
 2. Where a bill charged that the defendant had bought 
 land upon a parol agreement that another (the deceased hus- 
 band of one of the complainants, and the ancestor of the 
 others,) should share in such purchase : held, that the admin- 
 istrator of that other person was not a necessary party to 
 such bill. Ferguson v. Hass, Phil. Eq. E. 113. 
 
 3. In a suit for a legacy to the sole and separate use of a 
 feme covert, the husband is not a proper party plaintiff. Bar- 
 ham v. Gregory, Phil. Eq. E. 249. 
 
 4. It being admitted in the answer of executors sued for 
 a pecuniary legacy that there are assets sufficient to pay the 
 complainant and the other pecuniary legatees, the latter are 
 not necessary parties. IMd. 
 
 5. Where it is contended by the executors that a pecu- 
 niary legacy is payable in Confederate notes on hand at the 
 death of the testator, the residuary legatees should be made 
 parties in a bill by the pecuniary legatee seeking the pay- 
 ment of his legacy (at par) in the currency of the United 
 States. Ibid. 
 
 6. One who acted under color of an appointment by the 
 Governor, (made by virtue of Eev. Code, en. 99, sec. 14, hut 
 after its repeal,) having brought suit in the name ot the State 
 against a defaulting tax payer : held, to be no ground for 
 dismissing it at the instance of the defendant, that it be pur- 
 ported to be filed " on the relation " of such person. State 
 v. McGalliard, Phil. Eq. E. 346. 
 
 7. Distinction stated between suits in the name of the 
 State to the use of a citizen where the latter is the real 
 
360 PLEADING— III. 
 
 party, and such suits where the State alone is interested and 
 some citizen is named in connection with it merely for the 
 purpose of securing costs. 1 bid. 
 
 8. An action at law upon a note payable to B, agent of 
 A, brought before the adoption of the present Code, should 
 have beeu in the name of B, as plaintiff, and not in that of 
 A. Savage v. Carter, 64 N. 0. R, 196. 
 
 9. It is improper to join the Treasurer of the State with 
 the Auditor in an application for a writ of mandamus, 65 K". 
 0. R. 637. 
 
 10. Where a note was given, and made payable to A, as 
 guardian, and it was afterwards, in settlement, delivered to 
 the husband of the ward without endorsement : held, that a 
 suit upon said note was properly brought in the name of the 
 guardian, to the use of the husband and his wife. Mebane 
 v. Mebane, 66 N. C. R. 334 
 
 11. A trustee may sue in his own name, or he may join 
 his cestui que trust ; and the trust, between guardian and 
 ward, may be kept alive after a settlement, if they so choose, 
 without any purpose. Ibid. 
 
 12. The survivor of two joint guardians may sue on a note 
 payable to such guardians, as such, and on his death, pen- 
 dente lite, the suit is properly revived in the name of his per- 
 sonal representative, as executor or trustee of an express 
 trust, under sec. 37, C. 0. P., notwithstanding that the wards 
 have arrived at full age and the note was assigned by the 
 plaintiff to one of them. Biggs v. Williams, 66 N. 0. R. 427. 
 
 13. Where a contract was made for the sale of land, and 
 a bond was given to make title upon the payment of the pur- 
 chase money, and a portion of the purchase money being un- 
 paid, an action was brought by the vendor against the ven- 
 dee, to sell the lands for payment of the balance due: held, 
 that in such action, the wife of the vendee was not a proper 
 party, if the marriage took place prior to March 2d, 1867; 
 aliter, if the marriage took place subsequent to that time. 
 Bunting v. Fog, 66 K R. 193. 
 
 14. In an action for an account against an executor, the 
 personal representative and not the children of a deceased 
 legatee, should be made a party. Hagler v. McComhs, 66 
 H. O.R. 345. 
 
 15. Where a guardian lent trust funds to a firm of which 
 he was a member, and took their note payable to himself, al- 
 though under the old system he could not sue at law, under 
 the present system, by virtue of the conjunction of law and 
 equity, a civil action upon such instrument may be maintain- 
 ed. Gudger v. Baird, 66 N. 0. R. 438. 
 
PLEADING— III. 361 
 
 16. Independent of this view, relief under the C. 0- P.,. 
 sec. 249, is obtainable on the principle that the cestui que 
 trust may follow the trust fund into whose hands soever the' 
 funds may be found. Ibid. 
 
 17. Nor, in a suit on such note by the husband of the 
 ward, to whom it had been assigned by the guardian, can it 
 be objected that the guardian is not made party, as by virtue 
 of sec. 63, 0. P., persons severally liable may all or any be 
 included as defendants. Ibid. 
 
 18. The objection that one of the wards is not made a* 
 party, induces the Court to modify the judgment of the Court 
 below. Ibid. 
 
 19. Under the C. C. P., one who holds a note as trustee 
 of an " express trust," may bring an action upon it in his 
 own name, with or without joining the cestui que trust. 
 Davidson v. Elms, 67 N- C. R. 228. 
 
 20. An objection for want of proper parties should be ta- 
 ken by demurrer. C. C P. sec. 95. Ibid. 
 
 21. In a civil action, in the nature of a bill in equity, for 
 an account and settlement of a trust estate, in behalf of three 
 feme plaintiffs, it is a misjoinder to make other plaintiffs who 
 are not embraced by the trust ; and likewise a misjoinder to- 
 make one a defendant who has no concern with the manage- 
 ment of the trust fand. Hutchinson v. Boberts, 67 N. C. R. 
 223. 
 
 22. In an acction upon a guardian bond brought in the 
 name of the State, upon the relation of the Solicitor of the 
 District, it is too late to object in this court, that it should 
 have been brought in the name of the wards ; and when the 
 complaint in such actions hows it is really in the name of 
 such wards against the guardian and the sureties on his bond, 
 there is no ground of objection to the form. State v. Peebles, 
 
 67 N. C. R 97. 
 
 23. The real owner of a negotiable note, not indorsed, is 
 the proper person to sue for its recovery, under sec. 55, of 
 the Code of Civil Procedure. Andrews, AdnVr. v. McDaniel, 
 
 68 N. C. R. 385. 
 
 24. In a suit by an administrator to recover the amount 
 of a note given to a former administrator {pendente lite) of 
 the same intestate, it is no error, for the Judge of the Supe- 
 rior Court to order such administrator pendente lite to be 
 made a party, if, in his discretion, it be necessary to a proper 
 determination of the case. Dancy, Adm 7 r. v. Smith, etui., 
 68 N. C. R, 179. 
 
 25. The Court below has the power to amend the plead- 
 
362 PLEADING— III.— IV. . 
 
 ings, by acldiug the Dame of any party, who may be necessary 
 to a full determination of the cause. Johnston v. Neville, 68 
 N". G. E. 177. 
 
 26. A Judgment is rendered on a note against the maker, 
 B, a citizen of Cumberland, in favor of the payee, A, a citi- 
 zen Lenoir ; the judgment is assigned, and after assignment, 
 0, also a citizen of Lenoir, writes his name across the back 
 of the note. In a suit by the assignee against B and on 
 the judgment: held, that B and L were improperly joined in 
 the action : held further, that if O's name had been stricken 
 from the process the Justice had no jurisdictisn. Wooten v. 
 Maultsbij, 69 K 0. E. 462. 
 
 27. In a suit upon an administration bond, the next of 
 kin of the intestate are not necessary parties, 0. 0. P., sec. 
 17, and in such a suit, the administrator of the principal in 
 the bond need not be joined. Black v. Dawson, 69 N. 0. E. 
 42- 
 
 28. Under the 0. 0. P., the failure to join a proper party 
 is an important matter, but the joinder of the unnecessary 
 parties, either as plaintiffs or defendants, is immaterial, save 
 only as it may affect the question of costs. Rowland, et al. 
 v. Gardner, 69 N". C. E. 53. 
 
 29. The misjoinder of unnecessary parties, either as plain- 
 tiffs or defendants, is merely surplusage, and under the lib- 
 eral system of pleading introduced b> our Code of Civil Pro- 
 cedure, is not a fatal objection. Green v. Green, 69 IS". C. E. 
 204. 
 
 See (Bankruptcy, 5.) (Partition, 5 ) 
 
 IV. FORM OF ACTION. 
 
 1. Delt is the proper form of action upon a bond for the 
 payment of a specified sum of money " in specie or its equiv- 
 alent," where the plaintiffs seeks to recover the sum speci- 
 fied. Rhyne v. Wacaser, 63 N". C. E. 36. 
 
 2. Under the old system, if the declaration is in case, and 
 it does not further appear whether the action is in tort or 
 contract, it will be regarded as ambiguous or doubtful plead- 
 ing. Hughes v. Wheeler, 65 N. C. E. 418. 
 
 3. Where the defendant understood the action to be in 
 tort, and the plaintiff did not disclaim it, but offered evidence 
 to establish a breach of contract, such action cannot be sus- 
 tained. Ibid. 
 
 4. The object of the Code was to abolish the different 
 forms of action and the technical and artificial modes of 
 
PLEADING— IV.— V. 363 
 
 pleading used at common law, but not to dispense with such 
 degree of certainty, regularity and uniformity, as are deemed 
 essential in every system adopted for the administration of 
 justice. Oates v. Gray, 66 N". C R. 442. 
 
 5. The pleadings must contain the same substantial cer- 
 tainty, now, as was formerly requisite in a declaration, &c, 
 and unless the deiendant controverts the facts alleged, they 
 must be taken as true for the purposes of the action. — 0. 0. 
 P., 127. Ibid 
 
 6. The word " plead" used in the Act of 1868-H59, chap. 
 76, sec. 4, must be regarded as an inadvertence, and was not 
 intended to change the Code system. Ibid. 
 
 7. An entry on the docket of " general issue, stat. lim., 
 with leave," is not sufficient pleading, and, in the discretion 
 of the Judge below, would authorize judgment of nil dicit. 
 Ibid. 
 
 8. When an agent, without authority to execute a bond 
 for his principal, hired slaves for the principal, and gave bond 
 signed by him as agent, with security : held, that, according 
 to the practice before the adoption of the 0. C. P., assumpsit 
 would lie against the principal, while debt or covenant would 
 lie against the surety on the bond. Holland v. Clark, 67 
 N. C. R. 104. 
 
 9. The distinction between forms of action having been 
 abolished by the Constitution, it would defeat the purpose of 
 that provision if a party were allowed to avail himself of an 
 objection, founded upon such distinction. Oates v. Kindall, 
 67 N. 0. R. 241. 
 
 10. Therefore, when a plaintiff, in his complaint, alleged 
 and set out a case in trover, and the proof showed that it 
 should have been in the nature of assumpsit for money had 
 and received : it was held, that the plaintiff was entitled to 
 recover, notwithstanding the variance. Ibid. 
 
 V. JOINDER OF CAUSES OF ACTION. 
 
 1. A plaintiff cannot join in the same complaint a count 
 {or cause of action) in contract, against one of two defendants, 
 with a count (or cause of action) on the fraud of the both. 
 N. C. Land Co. v. Beatty, 69 N". 0. R. 329. 
 
 2. Any number of causes of action belonging to any one 
 of the classes enumerated in section 129, of the Code of Civil 
 Procedure, may be united, provided they all affect the par- 
 ties, but no two belonging to different classes. Ibid 
 
364 PLEADING— VI.— VII. 
 
 VI. PLEA OF NUL TIEL RECORD. 
 
 When one is sued individually, upon a judgment obtained 
 against hiui years since as administrator, and wishes to take 
 advantage of such variance, he should plead mil tiel record. 
 By pleading to the merits he waives the objection. Purvis 
 v. Jackson, 69 N. C. R. 474. 
 
 VII. UNDER THE C. C. P. 
 
 1. The rules of pleading, at common law, have not been 
 abrogated by the 0. 0. P, The essential principles still re- 
 main, and have only been modified as to technicalities and 
 matters of form. The effect of pleading, both in the old 
 and new system, is to produce proper issues of law or fact, 
 so that justice may be administered between parties litigant 
 with regularity and certainty. Parsley v. Nicholson, 65 1ST. 
 C E. 207. 
 
 2. Every material allegation of a complaint which is de- 
 nied by the answer must be sustained in substance by proofs ; 
 and though a plaintiff may prove a cause of action, he can- 
 not recover upon it unless it be alleged substantially in his 
 complaint. Ibid. 
 
 3. When the pleadings fail to present an issue, the only 
 course is to strike out all the pleadings, and direct a " re- 
 pleader. Sumner v. Young, 65 N. 0. E. 579. 
 
 4. When a party in a proceeding introduces new matter 
 not contained in his complaint, and supports it by his own 
 or other affidavits, the opposite party is entitled of right to 
 be heard in reply to such new matter by his affidavit, or the 
 affidavits of others ; and the right thus to reply to new mat- 
 ter introduced on either side is only restricted by that rule 
 in pleading which forbids a departure. King v. Winants, 
 68 N. 0. R. 63. 
 
 5. In action of the nature of trespass quare clausum 
 /regit, it is not necessary to describe the land entered upon, 
 by metes and bounds. Whitaker v. Forbes, 68 N. 0. R. 228. 
 
 6. Under our new system of pleading and practice, courts 
 are required to recognize both the legal and equitable rights 
 of the parties, and to frame their judgments so as to deter- 
 mine all the rights of the parties as well equitable as legal.. 
 Hutchinson v. Smith, 68 N. 0. R. 334. 
 
 See (Pleading- -Pleas and Demurrer.) 
 
PLEADING— VIII. 365 
 
 VIII. OF THE COMPLAINT OR DECLARATION. 
 
 1. Where the existence of a feet at a particular time is 
 important to a party, he must make a distinct allegation in 
 regard to it in his pleading. Donnell v. Cooke, 63 X. C- E. 227. 
 
 2. Parties seeking to be excused from the ordinary con- 
 sequences of their action, by reason of special circumstances, 
 must exhibit candor and particularity in their statements 
 concerning it. Ibid. 
 
 3. The right of a plaintiff to relief must always be limited 
 by his own statements in the pleadings of his grounds for 
 complaint. Love v. Cobb, 63 X. C. E. 324 
 
 4. Whether in a complaint for the recovery of realty, it is 
 sufficient to allege that the defendants are in possession of 
 the locus in, quo, and withhold the possession thereof from 
 plaintiff. Quere? Garrett v. Trotter, 65 X. 0. E. 430. 
 
 5. Assuming that the complaint is defective, advantage 
 ought to have been taken thereof in " apt time," and it can- 
 not be considered " apt time," to have filed an answer to the 
 merits, and make the objection at the trial term. Ibid. 
 
 6. Such a complaint is sufficient, and the defect, if any, is 
 aided by the defendants' answer, which shows that they un- 
 derstood the complaint to charge an illegal withholding of the 
 possession. Ibid. 
 
 7. The doctrine of aider, express or implied, and the prin- 
 ciples applicable to defective pleading discussed and explain- 
 ed. Ibid. 
 
 8. In an action to recover the possession of specific prop- 
 perty, the object in describing the property is to let the de- 
 fendant know what is claimed, so that he may give up the 
 property, or contest the claim of plaintiff. Johnson v. Neville, 
 65 X. 0. E, 677. 
 
 9. Wheu a defendant is uncertain as to what is claimed 
 in an action for the recovery of specific property, the Court, 
 upon motion, will require plaintiff to give a more particular 
 description, so as to remove all uncertainty. Ibid. 
 
 10. Though a complaint has not been filed in proper time, 
 the Judge may, in his discretion, permit it to be filed after- 
 wards. Brendle v. Heron, 68 X. 0. E. 496. 
 
 1 1. Where the complaint (which was verified) in an action 
 by the indorsee against the maker of a promissory note stated 
 the indorsement, but omitted to allege that it was for value 
 received, and the defendant demurred to the complaint for 
 Buch omission : it was held, that the demurrer was frivolous, 
 and that, as there was no answer, the plaintiff was, upon mo- 
 
366 PLEADING— IX. 
 
 tion, entitled to judgment for the amount of the principal and 
 interest of the note. (Hayton v. Jones, 68 N. 0. R. 497. 
 See (Pleading — Of the verdict and judgment, 15.) 
 
 IX. PLEAS AND DEMURRERS. 
 
 1. A demurrer for matters of substance should be general, 
 and not set out the grounds of objection. A demurrer for 
 matters of form, should set out the grounds, but not an ar- 
 gument to sustain the objection. Harrington v. McLean y 
 Phil. Eq. R. 258. 
 
 2. A demurrer bad as to part is bad as to all. Lattimore 
 v. Dickson, 64 N. 0. R. 356. 
 
 3. Under the Code, if a demurrer by the defendant be 
 overruled, judgment is to be given as if no defence had been 
 made, (sees. 217, 243,) unless the defendant obtain leave to 
 plead over, (sec. 131.) Ransom v. McClees, 64 N. 0. E. 17. 
 
 4. If a party answer and also demur to the same cause of 
 action, the answer overrules the demurrer ; but pleadings in 
 which a party answers to some and demurs to others of the al- 
 legations made in support of any one cause of action, are erro- 
 neous : sec. 96 of the Code applies only where a complaint or 
 answer contains several causes of action, or grounds of de- 
 fence. 1 bid. 
 
 5. A demurrer under the 0. 0. P. differs from the former 
 demurrer at law in this ; every demurrer, whether for sub- 
 stance or for form, is now special, and must distinctly specify 
 the ground of objection to the complaint, or be disregarded ; 
 it differs from the former demurrer in equity, in that the 
 judgment overruling it is final, and decides the case ; unless 
 the pleadings are amended, by leave to withdraw the demur- 
 rer and put in an answer. Love v. Comni'rs of Chatham, 64 
 N". 0. R. 706. 
 
 6. The provisions of the 0. 0. P , sec. 99, as regards com- 
 plaints which do not contain facts sufficient to constitute a 
 cause of action, are satisfied by arresting the judgment in cases 
 where they apply. Ibid. 
 
 7. A demurrer to complaint, "because it does not state 
 facts sufficient to constitute a cause of action," must be dis- 
 regarded, for not distinctly specifying the grounds of objec- 
 tion. Ibid. 
 
 8. Under the plea of the general issue, in an action of 
 debt upon bond, evidence of the illegality of the consideration 
 is inadmissible. Brower v. Hughes, 64 N. 0. R 542. 
 
 9. Courts will not readily decide an answer to be "frivi- 
 
PLEADING— IX. 367 
 
 lous :" oue by which it is intended to raise a serious question, 
 ex. gr., the effect of an endorsement by three out of four exe- 
 cutors, of a note payable to their testator, is not frivolous. 
 Erwin v. Bowery, 64 N. 0. R. 321. 
 
 10. In a suit upon a contract made prior to the adoption 
 of the 0. C. P., if the defendant demur for want of parties 
 in the Superior Court, aud the demurrer be sustained and 
 the plaintiff appeals to this Court, the plaintiff wil^be enti- 
 tled to a final judgment here upon the overruling of the 
 demurrer. Merwin v. Ballard, 65 N. C. R. 168. 
 
 11. The pendency of a former action between the same 
 parties, for the same cause, is a good defence in a second ac- 
 tion. Harris v. Johnson, 65 N. C. R. 478. 
 
 12. In such a case at common law, advantage must be 
 taken thereof by a plea in abatement. Under the C. C. P., 
 advantage must be taken by answer, if the complaint does 
 not show the pendency of such former action. Ibid. 
 
 13. Whatever is alleged in the complaint, and not denied 
 in the answer, need not be proved. Jenkins v. N. C. Ore D. 
 Co., 65 K 0. R. 563. 
 
 14. Where there is but one cause of action, or but one 
 defence, a demurrer must cover the whole ground, otherwise 
 it will be a nullity. Sumner v. Young, 65 N". C. R. 579. 
 
 15. Where several pleas are pleaded to the same cause 
 of action, each is as separate and independent as if contained 
 in different records. Sumner v. Chipman, 65 N. C. R. 623. 
 
 16. Under the C C. P., a defendant may avail himself of 
 any defence that would have been available under the old 
 mode of procedure, either in court of law or court of equity. 
 Clark v. Clark, 65 N. C. R. 655. 
 
 1 7 When an action of trespass vi et armis was commenced 
 before the adoption of the C. C. P., and tried since that time 
 upon the plea of the general issue, it was held that the de- 
 fendant, not having availed himself of the right of objecting 
 to the non-joinder of a plaintiff by demurrer or plea under 
 the 95th and 98th sections of the C. C P., cannot do so 
 under the plea of the general issue. Lewis v. McNatt, 65 
 N. C R. 63. 
 
 18. A demurrer for want of jurisdiction can only be sus- 
 tained, where the want of jurisdiction appears upon the face 
 of the complaint. Bank of Charlotte v. Britton, 66 N. C. R. 
 365. 
 
 19. A demurrer to the jurisdiction of the Superior Court 
 will not be sustained, where it appears in the complaint, that 
 the note sued on was for $200, notwithstanding said note 
 may, prima facie, be subject to the legislative scale. Ibid. 
 
368 PLEADING— IX. 
 
 20. If the defences set up in an answer are worthy of 
 consideration, they cannot be deemed frivolous. Sivepson v. 
 Harvey, 66 N. 0. E. 436. 
 
 21. In such case the plaintiff should reply or demur, and 
 if the demurrer be overruled, it becomes the duty of the 
 Judge to allow him to plead over, unless it is manifest that 
 such demurrer is frivolous, does not raise any question of law 
 worthy of serious consideration, and is interposed merely for 
 delay. Ibid. 
 
 22. The spirit and intent of the Code is, that actions shall 
 be tried as speedily and cheaply as possible upon their 
 merits. Ibid. 
 
 23. An answer to a complaint on a covenant for the pay- 
 ment of money, executed by the defendants, and alleged to 
 have become the property of the plaintiff by successive as- 
 signments, which alleges that there was a condition under- 
 written said covenant, to make it void if the land for which 
 the covenant was given, was subject to incumbrances, and 
 that at the time of the execution of the same, said land was 
 subject to the lien of an execution against the covenantee, 
 and further, that the assignment of the covenant from the 
 covenantee was procured by duress and fraud, and while the 
 covenantee was mentally incapacitated to contract, and that 
 the plaintiff took his assignment with full knowledge of these 
 facts, and that the plaintiff had caused a previous action on 
 the same, in the name of the covenantee, to be brought, 
 which had been dismissed, and had filed a bill to compel the 
 covenantee to allow the use of his name for that purpose, 
 which had also been dismissed, and that afterwards the de- 
 fendant had, after a full account with the covenantee, pro- 
 cured his release of the cause of action : held, that such de- 
 fences are not frivolous, but are worthy of serious considera- 
 tion. Ibid. 
 
 24. The "Act to suspend the Code of Civil Procedure in 
 certain cases," ratified March 16th, 1869, does not repeal 
 §116, G. 0. P., so as to allow of " pleas" without verification. 
 Haywood v. Bryan, 63 N. 0. R. 521. 
 
 25. An answer which avers that " no allegation of the 
 complaint is true," is not a compliance with the 0. 0. P., sec. 
 100, (Bat. Bev., ch. 17, sec. 100) which requires that the 
 answer must contain " a general or specific denial of each 
 material allegation ;" that is, it must deny either the whole 
 of each material allegation, or some material or specific part 
 thereof. Such answer is a sham plea, and ought to be stricken 
 out on motion, as provided in 0. 0. P., sec. 104. (Bat. Eev. 
 ch. 17, sec. 104.) Flack v. Davidson, 69 K". G. E. 42. 
 
PLEADING— IX— X —XI. 369 
 
 27. A plea that the court bad no jurisdiction of the 
 action is sham plea. The objection to the jurisdiction must 
 be taken by demurrer. — 0. C. P., sec. 85, sub-sec. 1. Ibid. 
 
 28- A plea alleging the! want of parties is sham plea, 
 as the objection ought to be taken by demurrer. — 0. 0. P., 
 sec. 95, sub-sec. 4. Ibid. 
 
 29. A plea in answer to a complaint on au administra- 
 tion bond of " performance of the condition of the bond by 
 payment to the next of kin," is good in substance, and an 
 issue may be taken upon it; and such issue is the subject of 
 a compulsory reference under the 0. 0. P., sec. 215, sub-sec. 1. 
 Ibid. 
 
 30. The rule of law that a person cannot take advantage 
 of au allegation of fraud unless it be made iu the pleadings, 
 does not apply to a case agreed where all the facts are stated, 
 and the matters of law or legal inference left to the court. 
 McRae v. Battle, 69 X G. R.^98. 
 
 See (Slander, 1, 2, 3.) 
 
 X. PLEA OF A FORMER SUIT. 
 
 1. A suit in our former courts of equity by A, the equit- 
 able assignee of a bond against B, the assignor, to compel B 
 to allow the use of his name in a suit at law against D, the 
 obligor in the bond, which suit was dismissed, is no bar to a 
 suit by A, the party in interest, under the uew system against 
 D. Swepson v. Harvey, 69 X. G. R 387. 
 
 2. Xor does the fact that after the equity suit was dis- 
 missed, D haivng notice of the equitable assignment, paid 
 off the bond to B, affect A's right to recover. Ibid. 
 
 3. A plaintiff having an action pending, cannot maintain 
 a second action against the same defendant for the same 
 cause. Such pending action should be pleaded in abate- 
 ment. Woody v.Jordan, 69 X.G. E. 189. 
 
 4. But a judgmeut in an action brought to recover cer- 
 tain property specifically is no bar to a subsequent action 
 between the same parties seeking to recover damages for the 
 taking and conversion of such property. Ibid. 
 
 See (Pleading — Pleas and Demurrer, 11, 12.) 
 
 XI. COUNTER-CLAIM. 
 
 1. A creditor of one deceased, by note, (there being no 
 other debt of equal or higher dignity,) became purchaser at 
 a sale by the administratrix, and gave bond on that account, 
 24 
 
370 PLEADING— XI. 
 
 (in an amount less than that of his claim,) and this bond con- 
 stituted the whole assets of the estate ; after the bond be- 
 came due, the administratrix, who, with her sureties, was 
 then insolvent, assigned it by endorsement, for value, to one 
 who was, to a small amount, creditor of the estate by account: 
 held, that the creditor by note was entitled to bring in his 
 debt, by a counter-claim, against an action upon his bond, 
 whether by the administratrix or her assignee. Ransom v. 
 Mctlees, 64 N. 0. R. 17. 
 
 2. Arguendo: It teems, that, under the present Code, 
 his right would be the same, even if the administratrix had 
 not been insolvent. Ibid. 
 
 3. Where lessors sued lessees for rent: held, that the lat- 
 ter were entitled, as a counter-claim, to show that the lessors 
 had no right to make the lease, and that the real owners- 
 thereof had brought suit against one of the lessees, and would 
 recover damages for its use during such lease. McKesson v. 
 MendenhaU, 04 N. C. R. 280. 
 
 4. In such case the persons claiming as real owners, should 
 be made parties to the action. Ibid. 
 
 5. Where a vendor of land brings an action for possession 
 against his vendee, who has been let into possession, the title 
 being reserved : the latter may set up the contract of sale, 
 and ask for an account of the payments upon the purchase 
 money, by counter-claim in the same action. Pearsall v. 
 Mayers, 04 N 0. R. 549. 
 
 6. Under the 0. 0. P., a covenant not to sue the defend- 
 ant may be made available by the latter, by way of counter- 
 claim, to defeat an action brought in violation thereof. Har- 
 sliaw v. Woodjin, 04 N. R. 508. 
 
 7. The defence of se f -off as heretofore administered in the 
 State has, by the 0. 0. P., been merged in that of counter- 
 claim, the effect of which, in one respect, is, that a defendant 
 is not allowed to oft-set the claim of a plaintiff as assignee of 
 a note past due when assigned, by showing that the assignor 
 was indebted to such defendant at the time of the assign- 
 ment ; unless such counter-claim had attached itself to the 
 note before the assignment, ex. qr , hj an agreement that it 
 should be applied thereto, or otherwise. Neal v. Lea, 04 N. 
 0. R. 078. 
 
 8. Where a horse is exchanged for land, and having after- 
 wards returned to the possession of the original owner, the 
 latter is sued for it, the allegation in the answer, that the 
 defendant had agreed to exchange the horse for the tract of 
 land on a certain creek, adjoining his own, and that the plain- 
 
PLEADING— XI. 371 
 
 tiff had falsely and fraudulently asserted title to said tract, 
 and had exhibited a deed to himself, for a tract on the same 
 creek, and the plaintiff well knew that the defendant was only 
 desirous of obtaining title to the particular tract indicated by 
 him, and such was a material inducement to the exchange, 
 would not have been available, as a defence under the former 
 system, and but for the wise and beneficent provisions of the 
 0. 0. 1'., the defendant would have been driven to a separate 
 action; but such a statement under the 0. 0. P., does con- 
 stitute a good counterclaim, within the meaning of the Code. 
 Walsh v. Hall, 66 N. 0. E. 233. 
 
 9. The stipulations contained in a contract in these 
 Mords, viz: "A B contracts with and D to furnish, at 
 Long Creek Furnace, from 500 to 1000 bushels of coal daily, 
 at 6^ cents per bushel, to be measured at the pit ; D to 
 furnish the timber gratis wherever he may see fit, reserving 
 groves and fruit trees, aud advance to A B all the money, 
 weekly, necessary to pay oft the wood-choppers — coal to be 
 paid for on delivery at the furnace," are dependent, and if, 
 without fault on the part of the owner of the furnace, and 
 without legal excuse, the other fails to deliver the quantity 
 of coal agreed to be delivered, the owner of the furnace being 
 sued for the value of the coal, &c, furnished, may properly 
 set up such failure by way of counter-claim. Burton v. 
 Wilkes, 66 X. C. R. 604. 
 
 10. In an action based upon such contract, where it ap- 
 peared that there had been a failure to deliver 500 bushels of 
 coal on any da}', and that the defendant had failed to make 
 as much iron, in consequence of such failure, as he otherwise 
 would have done, a charge which does not allude to the 
 counterclaim, based upon the foregoing facts, until attention is 
 called to the omission, and which then merely states " that if 
 the plaintiff failed to perform his coutract he could not re- 
 cover, and that if defendant failed he could not recover, is 
 erroneous, and especially in this case where there seems to be 
 no controversy as to the plaintiff's claim, and the main point 
 of the controversy is as to the defendant's counterclaim. 
 I hid. 
 
 11. A is sued by the executrix of B, on a note given for 
 the purchase of land sold by the executrix for assets; on the 
 trial A offers a set-off a judgment paid by him as B's surety: 
 held, in administrations granted prior to 1st of July, 1800, 
 not to be a counterclaim. McLean v. Leach, et al. 08 
 N. O. K 05. 
 
 12. A defendant is not bound to assert a set off or coun- 
 
372 PLEADING— XI.— XII. 
 
 terclaim in an action brought against him whenever he tnay 
 do so ; nor does the plaintiff's recovery bar a subsequent 
 action for such counter-claim, which the defendant might 
 have, but did not plead in the original action. Woody v. 
 Jordan, 69 X. 0. E. 189. 
 
 13. In a suit brought on a penal bond, given by a hus- 
 band to make title to his wife's laud a note given by the pur- 
 chaser to the wife to induce her to perfect the title by sub- 
 mitting to a private examination, cannot be used as a set-off 
 or a counter-claim. Utley v. Foy, 70 X. 0. E. 303. 
 
 See (Covenant, 4.) (Set-off— At Law, 6, 7, 8.) 
 
 XII. VENUE. 
 
 1. The venue in an action against a Eailroad Company, 
 can be laid only iu the same county wherein the track of its 
 road, or some part thereof, is situated ; actions brought 
 otherwise are to be dismissed. Graham v. R- R. Co., 64 X. 
 C. E. 631. 
 
 2. The parties spoken of iu the acts defining venue, are 
 the parties to the record ; therefore, no objection can be made 
 on account of venue, by pleading and showing that the party 
 on whose behalf a suit is brought, and the defendant therein, 
 are citizens of another county than that in which suit was 
 brought. Rankin v. Allison, 64 X. C. E. 673. 
 
 3. An answer setting forth that B is the real owner of 
 the note sued upon, but that it was assigned to the plaintiff, 
 is to be taken as meaning that the plaintiff is trustee of an 
 express trust, and so is properly plaintiff. (C. C. P., sec. 57 
 and 58.) I hid. 
 
 4. Venue may be waived by the consent of parties, but 
 they connot confer jurisdiction on a Court by consent. Leach 
 v. W. N. C. R.R, 65 X. C. E. 486. 
 
 5. The Act of the General Assembly of 1868-'69, chap. 
 251, requiring that the venue iu actions against Eailroad 
 Companies, shall be laid in some county wherein the track 
 of said railroad, or some of it is situated," is not in conflict 
 with sec 7, art 1, ot the Constitution. The jurisdiction of 
 of the courts, and the venue of actions, have always been 
 subjects of legislation. Kingsbury v. Chatham R. R. Co., 
 66 X. C. E. 284. 
 
 6. The " repeal of a statute shall not effect any suit 
 brought before the repeal, for any forfeiture incurred, or for 
 the recovery of any rights acciuing under such statute." 
 Eev. Code, ch. 108, sec. 1. Ibid. 
 
PLEADING— XII. 373 
 
 7. The question as to where a case ought to be tried, is 
 preliminary to the trial, and must be determined by the 
 Judge. And this question can be as well tried on a motion 
 to dismiss, (the facts being verified by affidavits) as upon a 
 plea to the jurisdiction. lhid. 
 
 8. An action by the holder of certain notes given for the 
 purchase of land against the purchaser of the land and 
 others, to be subrogated to the rights of the vender, in the 
 contract of sale of the laud, which is substantially the same 
 as an action, "for the foreclosure of a mortgage of real es- 
 tate," must be tried in the county in which the land is situ- 
 ate. Code of Civil Procedure, sec. GG. Fraleij v. March, 
 G8 N". C. E. 1G0. 
 
 9. When a summons has been served, and the complaint 
 filed, the case is pending sufficiently to entitle a party to re- 
 move it to an adjoining Judicial District, if the presiding 
 Judge is a party to the suit.— Act of 1870-'71, ch. 20. Car- 
 ter v. W. N. C Railroad, G8 N. C E. 34G. 
 
 10. Under the Act of 18(>8-'G9, ch. 248, an administrator 
 or executor must be sued as such iu in the county in which 
 he took out letters of administration or letters testamentary, 
 provided he or any of his sureties lives in that county, whether 
 he is sued upon his bond, or simply as administrator or exe- 
 cutor. Stanley v. Mason, G9 N. C. E. 1. 
 
 11. Suits against the Board of County Commissioners 
 ought to be brought in the county in which they are Com- 
 missioners (C. C. P., sec. G7.) Rodman, ./., dissenting. 
 Jones v. Commissioners of Bladen, G9 N. C. B. 412. 
 
 12. The Acts of 1870-'71, ch. 42, sees. 1 and 2, (Bat. 
 Rev., ch. 18, sees. 1 and 2), and of 1871-72, ch. 45, do not 
 change the venue of any actiou ; and therefore, actions 
 against a Board of County Commissioners must be brought 
 iu the county of such Commissioners. Steele v. Commis- 
 sioners of Rutherford, 70 N. C. E. 137. 
 
 13. In an action against the Board of Commissioners of 
 one county, brought to the Superior Court of an adjoining 
 county, objection to the venue must be taken in that court; 
 otherwise, the objection will be considered as waived. Ed- 
 wards v. Commissioners of Wilkes, 70 N. C. E. 571. 
 
 14. Actions against a Board of County Commissioners 
 must be brought to the Superior Court of the county wherein 
 those Commissions reside. Commissioners of Henderson v, 
 Contmissio}tcrs of Rutherford, 70 N". 0. B b'57. 
 
374 PLEADING— XIII. 
 
 XIII. OF THE VERDICT AND JUDGMENT. 
 
 1. A verdict "that one note shall off-set the other," 
 where the defendant's note is the larger, is a verdict for the 
 defendant. Ransom v. McClees, 64 N. 0. R. 17. 
 
 2. A judge is not bound to take for granted, (at the sug- 
 gestion of counsel, based upon the form of the verdict) that 
 the jury did not understand his instructions, and therefore 
 to repeat them. Ibid. 
 
 3. Submitting to a jury issues upon points not necessa- 
 rily decisive of the case, and requiring verdicts in the form 
 of neither general nor special verdicts, is irregular. Henry 
 v. Rich, 64 N. 0. R. 379. 
 
 4. Where a party desires to ascertain upon what partic- 
 ular points the verdict goes, he ought to request the court 
 to put such question to the jury before it is rendered. Kings- 
 l)u ry v. Gooch, 64 K 0. R. 528. 
 
 5. Although, in some cases, a jury may correct a mis- 
 carriage on the part of the Court by finding a proper verdict ; 
 yet, in no case will a suggestion that the Court has found a 
 fact truly, atone for such invasion by it of the province of 
 of the jury. Howard v. Beatty, 64 N. 0. R.559. 
 
 6. A verdict for ''four hundred dollars in old bank money, 
 interest from the 27th of May, 1863, scaled at value at 
 time," — is too uncertain to warrant a judgment thereupon. 
 Crews v. Crews, 64 N. C. R. 536. 
 
 7. Where a jury returned a verdict for the plaintiff u for 
 $51.60, subject to an off-set of $26 80, if said off-set had not 
 already been paid ; but if it had been paid, then for $51.60, 
 without off-set," it is proper to render the judgment for 
 $51.60, and to reject the balance as surplusage. Hawkins 
 v. House, 65 N. C. R. 615. 
 
 8. In an action of debt upon a bond for a certain sum of 
 money, to which the defendant has plead the general issue, 
 usury and fraud, if the jury render a verdict, which is re- 
 c rived by the clerk in the absence of the Court, that they 
 find all the issues in favor of the plaintiff, and assess his 
 damages at (the sum mentioned in the bond) principal money 
 without interest, the only redress which the judge can give 
 the plaintiff, is to set aside the verdict and grant a new 
 trial. He cannot render a judgment upon such verdict 
 lor the principal of the bond and the lawful interest thereon. 
 Houston v Potts, 65 K C R. 41. 
 
 9. If a jury persist, in the presence of the court, in rei.- 
 
PLEADING— XIII.— XIV. 375 
 
 dering an irregular and improper verdict, the Judge may set 
 it aside and fine the jury for contumacy. IMA. 
 
 10. When a jury returns a verdict which is insensible and 
 irresponsive to the issues, the Judge may, in his discretion, 
 allow them to reform the same. Lowe v. Towe, 07 X. O.K. 
 298. 
 
 li. The issues submitted to a jury in an action upon a 
 note given May, 1804, being as to the execution of the note 
 and the currency in which it was solvable ; held, that a ver- 
 dict, finding " all issues in favor of the plaintiff for the value 
 of Confederate money," is sufficient to support a judgment 
 for the amount due according to the legislative scale. Mer- 
 rimon v. Norton, Adm'r., 57 X. 0. R. 115. 
 
 12. As a general rule, as soon as the facts of a case are 
 determined, whether by the pleadings, a case agreed, a spe- 
 cial verdict, or a general verdict subject to case agreed, it is 
 the duty of the court haviug jurisdiction to give judgment 
 upon them, and if the case be in the Supreme Court upon 
 appeal, it is the duty of that court to give such judgment as 
 the court below ought to have given. Isler v. Brown, 07 
 X. C R. 175. 
 
 13. When the facts have been once determined, provided 
 there has been no irregularity in the proceedings, no court 
 has a right to deprive the parties of the standpoint they have 
 gained, by setting aside the verdict or other form of finding, 
 and re-open the issues thus regularly concluded. Ibid. 
 
 14. The court will not grant a certiorari to operate as a 
 supercedeas, upon a suggestion that the record in the court 
 below is erroneous, and rely upon the coutingenc} 7 of an 
 amendment, especially when the party has had ample oppor- 
 tuuitv of having the same amended so as to speak the truth. 
 Ibid. 
 
 15. When, in his complaint, the plaintiff demands unli- 
 quidated damages, there must be an enquiry to ascertain the 
 amount thereof. Mayfield v. Jones- 70 X. C. It. 530. 
 
 XIV. WHAT IS CURED BY A VERDICT. 
 
 An objection that the plaintiff should have filed a special 
 instead of a general replication, comes too late after verdict 
 (Rev. Code, ch. 3, s. 5) Parish v. Wiihelm, 03 X. C. R, 51 
 
376 PLEADING IX EQUITY— I —II.— III. 
 
 PLEADING IN EQUITY. 
 
 1. Bill of discovery. 
 II. Bill to perpetuate testimony. 
 
 III. Scandal in pleading. 
 
 IV. Decree. 
 
 I. BILL OF DISCOVERY. 
 
 1. A bill had been filed to obtain a discovery in aid of a 
 plea of usury, and the defendant demurred thereto ; after- 
 wards, the act of 1865-'6, c 24, repealing the former act up- 
 on usury, and the act of 1865-'0, c. 43, upon the subject of 
 evidence, were passed : held, that the bill should be dismiss- 
 ed with costs. McDoivell v. Maultsby, Phil Eq. R. 16. 
 
 2. Although the language of a bill may be technical and 
 precise, yet if upon looking through it enough appear to war- 
 rant relief, it will not be dismissed. Ferguson v. Hass, Phil. 
 Eq. R 113. 
 
 3. A bill by one claiming property as remainderman, un- 
 der a marriage agreement between his parents, is not requir- 
 ed to set out a will of the father professing to dispose of prop- 
 erty ; and the legatees in the will should not be made defen- 
 dants, the executor representing the adverse interest under 
 the will. Harrington v. McLean, Phil. Eq. R. 258. 
 
 II. BILL TO PERPETUATE TESTIMONY. 
 
 1. A bill filed by the sureties to a bond against the obli- 
 gee, alleging that the bond is tainted with usury, the knowl- 
 edge of which is confined to the principal and the defendant, 
 and praying that the testimony of the principal be perpet- 
 uated, will not be entertained unless the plaintiffs offer to 
 pay what they acknowledge to be really due. Crawford v. 
 Me Adams, 03 N. G. It. 67. 
 
 2. (Observations by Pearson, C. J., upon the distinction 
 ordinarily taken in this connection, between bills of discovery 
 and bills to perpetuate testimony.) Ibid. 
 
 III. SCANDAL IN PLEADING-, 
 
 1. Words however disparaging or abusive, are not slan- 
 derous in equity pleading, unless they be also impertinent 
 Henry v. Henry, Phil. Eq. R. 334. 
 
 2. Where a bill was filed for the specific performance of 
 an alleged contract, and instead of merely setting out the 
 contract, and alleging its non-execution as a ground for the 
 
PLEADING m EQUITY— III.— IV. 377 
 
 prayer, it recited, by way of inducement, a train of circum- 
 stances which went to show ingratitude and baseness on the 
 part of the defendant in refusing to execute the contract : 
 Iwld, that an answer which set up as a defence, that the con- 
 tract was a forgery by the plaintiff, was not liable to excep- 
 tion for scandal, for detailing circumstances corroborative of 
 the averment. Ibid. 
 
 3. In such a case the court suggested that the bill be 
 amended by striking out the statement of circumstantial evi- 
 dence, and that thereupon the defendant put in a plea deny- 
 ing the execution of the contract, so that an issue might be 
 directed for trial by a jury at law. Ibid. 
 
 IV. DECREE. 
 
 1. Final decree of distribution postponed, owing to the 
 state of the record, and the lapse of time since the bill was 
 filed. Nelson v. Blue, 63 K 0. E. 659. 
 
 2. Final decrees in the late Courts of Equity can be im- 
 peached at present only by actions, commenced, as others, by 
 summons. Covington v. Ingram, 64 N". 0- E. 123. 
 
 3. A petition to rehear a decree of this Court, when the 
 error complained of is one of fact committed in making an 
 interlocutory order of reference, and in confirming the report 
 made by the commissioner is not strictly a petition to rehear, 
 but may be treated as a motion to set aside the order of re- 
 ference and the order confirming the report, and the decree 
 made pursuant thereto. JEason v. Sanders, 65 N. C E. 216. 
 
 4. When a rule was taken upon the Clerk of the Superior 
 Court, to show cause why he should not pay a certain sum of 
 money decreed to be paid out of funds in his hands, it is no 
 answer to the rule to set forth facts tending to show that the 
 original decree was erroneous. Long v. Cole, 66 N. C. E. 381. 
 
 5. An error in a decree canuot be corrected or reviewed 
 under a rule to show cause. To effect that purpose, regular 
 proceedings must be instituted, having that end in view. 1 bid. 
 
 ji Where a bill in equity was filed to foreclose a mortgage, 
 and a final decree was obtained, the defendaut, (the mortga- 
 gor,) cannot avail himself, by a suggestion, in the nature of a 
 plea«Giuce the continuance, of the pendency of another .suit in 
 the District Court of the United States "to force him into 
 bankruptcy." Wesson v. Johnson, 66 N. E. 189. 
 
 7. For 1st. It does not appear that both suits were for 
 the same cause of action. 2d. A plea, puis darn in contin- 
 uance, is not admissible in a Court of Equity. 3d. The case 
 
378 PLEADING, &C-.IV.-PLEDGE— POSSESSION. 
 
 of a mortgagee is an exception to the general rule, and he 
 may proceed on his mortgage, in Equity, and on his debt, at 
 law. 4th. The matter which had existed so long, comes too 
 late after hearing and decree. Ibid. 
 
 8. A decree ought in all, and must in cases of an equity 
 character, arising under the 0. 0. P., declares the facts upon 
 which the law is adjudged. Burbank v. Wiley, 66 N. C. E. 58. 
 
 PLEDGE. 
 
 Although for the validity of a pledge it is necessary that 
 
 possession shall be given to the pledgee and not be resumed 
 
 by the pledgor. This rule does not embrace a case where 
 
 the pledge is re-delivered to the pledgor as an agent of the 
 
 jpledgee. Hose v. Coble, Phil. L. R. 517. 
 
 POSSESSION. 
 
 1. Where one of two coterminous proprietors of land 
 cleared and fenced up to a line of marked trees, believing 
 that to be the dividing line, whereas it was at some points as 
 much as twenty-five yards over upon his neighbor's land : 
 held, that such act constituted an open and notorious adverse 
 possession up to the marked line, and rendered a deed made 
 by the neighbor during such possession, for that part, void. 
 Mode v. Long, 64 N. 0. R. 438. 
 
 2. Where the locus in quo was a peninsula formed by the 
 bend of a river, and the question was as to the adverse pos- 
 session of that land by the defendant, and it appeared that he 
 ran a fence partly on his own land and partly on that of an- 
 other person, across the neck of the peninsula, so that it 
 excluded the cattle of other persons from ranging upon it, 
 except by crossing the river, and opened a gate in his fence 
 for his own cattle to get upon it : it was held, that the defen- 
 dant had uo adverse possession of the land in the peninsula, 
 unless he had made the fence across the neck for the avowed 
 aud unequivocal purpose of taking possession of the peninsula 
 and using it for a pasture as his own land. Osborne v. John- 
 ston, 65 N. C. R. 22. 
 
 3. When one in possession of a tract of land conveys the 
 same in trust for the payment of debts, aud afterwards the 
 
POSSESSION— PRACTICE— I. 
 
 379 
 
 said land is sold at execution sale, and bought for the bene- 
 fit of the bargainor's wife, and the said bargainor remains in 
 possession during his life time, and the wife continues the 
 same to the bringing of an action of ejectment : held, that 
 such possession is not adverse to the trustee, nor to the pur- 
 chaser at the sale under said deed of trust. McNeill v. Rid- 
 dle, 66 X. <J. R. 290. 
 
 4. The operations of building a shed, quarrying rock, 
 erecting a lime-kiln and cutting wood to burn it for the pur- 
 pose of making lime on the laud in dispute, continued unin- 
 terruptedly for more than seven years, constitute such a 
 possession as will give a good title to the person claiming 
 adversely under it. Moore v. Thompson et al., 09 N. C. R. 
 120. 
 
 See (Tenants in common, 3.) 
 
 PRACTICE. 
 
 I. 
 
 In equity. 
 
 
 XL 
 
 II. 
 
 Affidavits. 
 
 
 
 III. 
 
 Appearance. 
 
 
 XII. 
 
 IV. 
 
 Scire Facias. 
 
 
 
 V. 
 
 Discontinuance. 
 
 
 XIII. 
 
 VI. 
 
 Non-suit. 
 
 
 XIV. 
 
 VII. 
 
 Dismissing a suit, retraxit. 
 
 
 XV. 
 
 VIII. 
 
 Consolidating suits. 
 
 
 
 IX. 
 
 Demand of power. 
 
 
 XVI. 
 
 X. 
 
 Under the Code of Civil Pi 
 
 •o- 
 
 XVII. 
 
 
 cedure. 
 
 
 XVIII 
 XiX 
 
 
 I. 
 
 IN I 
 
 :quiTY. 
 
 References, motions, orders, 
 
 rules and notices. 
 Some miscellaneous rules of 
 
 practice. 
 Parties. 
 
 Of the trial and its incidents. 
 Submitting questions of fact 
 
 to the jury. 
 Judge's charge. 
 Motion m arrest of judgment. 
 On appeals. 
 In the Supreme Court. 
 
 1. Unless the order for the trial of issues before a jury 
 so direct*, the answer of one of the defendants in the original 
 cause, is not to be read on their behalf upon such trial. 
 Jackson v. Harris, 03 N". 0. R. 261. 
 
 2. Although the verdict of a jury upon issues which had 
 been tried by them in obedience of the order of a court of 
 equity, lie not binding upon that court, it will not lightly be 
 disturbed. Ibid. 
 
 3. The object of a reference in matters of account is to 
 have a plain and full statement of the figures and facts, so 
 as to enable the parties, on exceptions, to present to the 
 
380 PRACTICE— I. 
 
 court, such matters as may be controverted, in an intelligible 
 manner; and to enable the court to dispose of them without 
 the labor of wading through all of the testimony, and in fact 
 of trying the wholecase over again. To this end, the master 
 should set out the facts found by him, and not content him- 
 self with a general reference to the depositions. Hurdle v. 
 Leath, 63 N. 0. R. 366. 
 
 4. An order directing the surplus proceeds of a sale of 
 mortgaged lands to be paid into court, cannot be made in a 
 cause to which the assignee of the bond secured has not 
 been made a party. Hyman v.. Devereux, 63 N. 0. R. 624. 
 
 5. Courts of equity in this State will not grant new trials 
 of issues, sent by them to be tried at law, merely because 
 the verdict was against the weight of evidence. Peebles v. 
 Peebles, 63 N. 0. R. 656. 
 
 6. Where the issue sent for trial was, whether a certain 
 conveyance from A to B, was[in fraud of 0, a creditor of A, 
 with the direction that should be plaintiff in the issue, 
 aud A and B co-defendants : and upon the trial declarations 
 made by A previous to the conveyance and whilst he was in 
 possession of the laud, in regard to the state of the accounts 
 between himself and B, were allowed to be given in evidence : 
 held, that such declarations were not competent as against B; 
 also, that to prevent complications on a new trial, A's name 
 should be struck out of the issue. Ibid- 
 
 7. A cause in equity being before a court upon excep- 
 tions to a report made under an order for an acccount therein : 
 held, that it was erroneous for the Judge upon sustaining the 
 exceptions to proceed to dismiss the bill. Hays v. Hays, 64 
 K". 0. R. 59- 
 
 8. A suit in equity begun in 1867 is to be governed in 
 regard to procedure, by the laws then existing ; therefore, 
 where a bill was filed to set aside a release given by a ward 
 to his guardian, and for an account, &c ; held, that the Court 
 had no power, before making a decree to set aside the re- 
 lease against the defendant's will, to make an order of refer- 
 ence, particularly an order of reference to hear, try and de- 
 termine the issues in the cause. Douglas v. Caldwell, 64 
 N". C. C. 372. 
 
 0. When no replication is filed to an answer in equity, 
 and the cause is set down to be heard upon bill and answer, 
 the bill must be dismissed when the allegations in it are not 
 admitted in the answer. Carrow v. Adams, 65 N". 0. R. 32. 
 
 10. When an equity is disclosed in an answer different 
 from that which is alleged in the bill, the plaintiff ought to 
 
PEACTICE— I— II. 381 
 
 have his bill amended to meet such state of facts, and to ob- 
 tain the appropriate relief. Ibid. 
 
 11. Under the former equity practice it was discretionary 
 with the Chancellor to refer the issue of fact to a jury but he 
 could never refer them a Master in Chancery, or a Referee 
 or Commissioner. 
 
 12. Therefore it is erroneous to refer complicated ques- 
 tions of fact to a person designated by the court ta take the 
 account and report to the court. Ibid. 
 
 13. When a bill is filed for the specific performance of a 
 contract to convey a tract of land, and the defedaut alleges 
 that the tract consists of two parts, of which he admits that 
 he is the owner of one, but avers that the other belongs to 
 his wife, and sets up a defence, which, if good, applies to the 
 whole contract, it is erroneous to make a decree if favor of 
 the plaintiff as to the part of which the defendant admits he 
 is the owner, and reserve the question as to the other part. 
 Sivepson v. Bouse, Go 1ST. C. R. 34. 
 
 14 Where no final decree has been rendered in a suit in 
 the late court of equity, it must be proceeded in according to 
 the practice of courts of equity existing when our present 
 Constitution was adopted. Greene v. Moore, 06 R. N. C. 
 425. 
 
 15. Under the former system, orders and decrees in such 
 suits could oulv be made in term time. Ibid. 
 
 16. Under the former system if an equity cause was set 
 down for hearing upon the bill, answer, proofs, reports, ac- 
 counts, exceptions, &c, the Chancellor might himself find 
 the facts and pronounce the law thereupon, and was not 
 bound to adopt the facts, reported by the clerk and master, 
 nor to confirm the repoot, though no exceptions were filed 
 thereto. McMillan, Adm'r v. McNeill et al., 69 N. C R. 
 129. 
 
 17. The presiding Judge, under the old equity practice, 
 might or might not submit issues to a jury, as he saw fit ; 
 and might sustain or disregard the finding of the jury on 
 such issues as he thought best. Pearson v. Caldwell, 70 
 N. C. R. 291. 
 
 II. AFFIDAVITS. 
 
 An affidavit amended by order of the court must be re- 
 sworn to after amendment, or it will be considered as no 
 affidavit. Atlantic Bank v. Franlcford, Phil. L. R. 199. 
 
382 PEAOTICE— III— IV. 
 
 III. APPEARANCE. 
 
 The stay law of September, 1861, under which a defen- 
 dant was "not compelled to plead for twelve months from the 
 return term," did not excuse him from entering an appear- 
 ance at such return term, and then asking for time to plead. 
 Crawford v. Bank of Wilmington, Phil. L. E. 13G. 
 
 IV. SCIRE FACIAS. 
 
 1 . A writ of scire facias upon a judgment in a county court, 
 notwithstanding the Stay. Law of September, 1861, will not 
 lie except in the court in which the judgment is. Griffis v. 
 McNeill, Phil. L. E. 175. 
 
 2. Where a writ of scire facias upon a judgment in a 
 county court had been brought to a Superior Court : held, 
 that, notwithstanding the Stay Law of the Convention of 
 1806, it should be dismissed at the costs of the plaintiff. 
 Ibid. 
 
 3. The ordinance of the Convention of June, 1866, enti- 
 tled "An ordinance to change the jurisdiction of the courts 
 and the rules of pleading therein," is general, and applies to 
 writs of sci. fa. from the Supreme Court, as well as those from 
 the county to the Superior Courts. Bingham v. Richardson , 
 Phil. L. E. 315. 
 
 4. The plaintiff in a sci. fa , under sec. 29, ch. 45 of the 
 Eev. Code, must show himself to be the party aggrieved by 
 the default in question : therefore, where the defendant 
 therein pleaded mil tie! record, and the presiding Judge, hav- 
 ing found that the writing upon record was as follows : "that 
 the defendants [to the original suit] are the tenants of the 
 plaintiff [therein], and are guilty of the trespass declared 
 upon in the declaration of ejectment, and assess the plain- 
 tiff's damage to a penny, and that the clerk's office have 
 judgment and execution for the plaintiff's costs ;" there- 
 upon, also found the issue in favor of the plaintiff in the sci. 
 fat: held, to be error, as the record showed no judgment in 
 favor of such plaintiff Simpson v. Simpson, 63 ET. C. E. 
 534. 
 
 5. Where a scire facias tested at May Term 1868, had 
 been issued to enforce a judgment nisi at that term against 
 a Sheriff for not making due return of process : held, to have 
 been the appropriate remedy. Thompson v. Berry, 64 N. C. 
 E. 81. 
 
 See (Executors and Administrators — Of their liability to 
 creditors, 25, 26, 27.) 
 
PEACTIOE— V— VI — VII. 383 
 
 V. DISCONTINUANCE. 
 
 A petition for a public road having been carried by appeal 
 from the County to the Superior Court, the Judge made a 
 decree in favor of the petitioners, and thereupon ordered a 
 procedendo to it-sue to the county court: held, that although 
 the latter part of this judgment was erroneous, and the court 
 should have ordered a writ to issue from its own office, yet, 
 inasmuch as the parties had obeyed it, and carried the case 
 back into the county court, the petition was thereby discon- 
 tinued; and. therefore, that after several years of other unsuc- 
 cessful litigation in the case had occurred in both courts, the 
 petitioners could not resort to the judgment above mentioned 
 and move for an order to summon a jury to lay out the road. 
 Caldwell v. Paris, Phil. L. R 54. 
 
 See (Process, 12. ) 
 
 VI. NON-SUIT. 
 
 1. In defence to an action upon a note, the defendants, 
 by way of counterclaim, alleged that it was given to the 
 plaintiffs for rent of a tract of land, and that other parties, 
 claiming such land by title paramount to that of the plain- 
 tiffs, had sued one ot the defendants, seeking damages for its 
 occupation during the time for which the note was given; 
 and thereupon, by order of the court, the owners were made 
 plaintiffs to the suit ; the original plaintiffs then elected to be 
 non-suited : held, upon an appeal by the interveners from 
 this judgment of non-suit, that they had a right to take a 
 non-suit; that althoug non-suited, the action would go on for 
 the interveners, and the persons non-suited would be bound 
 by the result of the suit, as privies thereto.' McKesson v. 
 Hunt, 04 K C. K. 502. 
 
 2. A plaintiff may elect to be non-suited in every case 
 where no judgment, other than for costs, can be recovered 
 against him by the defendant, and when such judgment may 
 be recovered, he cannot. Hid. 
 
 3. The defendants had a right to ask for a bond for costs 
 from the interveners, as the parties non-suited ceased to be 
 liable, except partially. Hid. 
 
 VII. DISMISSING A SUIT, RETRAXIT, 60. 
 
 1. An entry of the words "settled and dismissed, costs 
 paid into office, received tax fee, J. L. II , A'tty," made by a 
 plaintiff upon the appearance docket, before the return term 
 
384 PRACTICE— VII.— VIII— IX. 
 
 of the suit, does not amount to a retraxit; aud an order, at 
 the return term, to strike out was proper. JEagin v. Mus- 
 grove, Phil. L. R 13. 
 
 2. The provision of the 5th section of an ordinance enti- 
 tled ''An ordinance to change the jurisdiction of the courts, 
 &c," in regard to the dismission of pending writs of sci. fa., 
 cannot be taken advantage of without motion : therefore, 
 where the defendant failed to make any defence to a sci. fa., 
 and thereupon judgment was given against him: held, that 
 such judgment was regular and valid. Kingsbury v. Hughes, 
 Phil. L. R. 328. 
 
 3. By Pearson, C. J. : A suit brought by a person in the 
 character of a tax payer, ou behalf himself and all other tax 
 payers in the State, when once entertaiued by the courts, is 
 not to be dismissed by the plaintiff without an order of the 
 court first had and obtained. Me Aden v. Jenkins, 64 N. C. 
 R. 796. 
 
 4. Though a Judge of the Superior Court may refuse a 
 motion made by the defendant to dismiss a suit upon a 
 grouud which appears upon the record, yet he may entertain 
 a like motion at a subsequent term, aud dismiss the cause 
 upon the same ground. Love v. Young, 69 N. C. R. 65. 
 
 VIII. CONSOLIDATING SUITS. 
 
 The refusal of the judge below to consolidate several actions 
 brought to recover the amount of certain bills issued by a 
 bank, the defendant, where it did not appear that the bills 
 sued on were all of like character, aud omitted under the same 
 circumstances, was right, and the defendant was not entitled 
 to a new trial on account of such refusal. Glenn v. Farmers 7 
 Bank of N. C, 70 N. C. R. 191. 
 
 IX. DEMAND OF POWER OF ATTORNEY. 
 
 1. A defendant has a right at the return term of a summons 
 in an action to demand of the plaintiff's c >uusel, his authority 
 for entering an appearance. Rev. Code, chap. 31, sec. 57, 
 Rule 16. Reed v. Heed, m ST. C. R. 377. 
 
 2. If the demand for the power of attorney be made at the 
 return term, it is the practice, and within the discretion of 
 the Judge, to extend the time; if, however, such demand is 
 not made at the proper time, and before the right to appear 
 has been recognized, it comes too late ; unless there be parti- 
 cular circumstances tendiug to excuse the party for not mak- 
 ing it in apt time. 1 bid. 
 
PRACTICE— IX.— X. 385 
 
 3. When the pleadings have been made up, and the case 
 called for trial, it is too late for the defendant to demand of 
 the plaintiff's attorney his authority for appearing. Rowland, 
 et al., v. Gardner, 69 N. C. R. 53 
 
 X. UNDER C. C. P. 
 
 1. Actions pending at the time of the ratification of the 
 Code, are to be proceeded with and tried under such laws and 
 rules then existing as may be practicable: therefore, in such 
 actions a "counterclaim" is not admissible. Teague v. James, 
 
 63 X. C. R. 91. 
 
 2. Suits pending at the time of the adoption of the Code 
 are to be proceeded in and tried under the then existing laws 
 and rules applicable thereto ; therefore, in an ejectment which 
 was then pending the defendant has no right to have relief 
 because of a " counterclaim " under a bond for title from the 
 plaintiff. Gaitlier v. Gibson, 63 X. C. R. 93. 
 
 3. The word "actions," in the first line of paragraphs 3 
 aud 4, in sec. 8, of the Code of Civil Procedure, is in the ob- 
 jective case, and is governed by the preposition " to," in the 
 first line of the section ; therefore the words ' l but such ac- 
 tions" must be supplied in each paragraph immediately pre- 
 ceding the verb " shall be governed," in the fifth line of the 
 former, and the fourth line of the latter paragraph. Smith 
 Mclhvaine, 63 X. C R. 95. 
 
 4. Actions commenced after the adoption of the Code 
 upon contracts not embraced in the Stay Law Ordinance, 
 must be brought before the clerk. Ibid. 
 
 5. Actions upon contracts entered into before the ratifi- 
 cation of the Code must be returned before the clerk. Swep- 
 son v. Harvey, 63 X. C. R. 106. 
 
 6. Where, at the time that a motion for a procedendo to 
 the county court was made in the Superior Lourt, the motion 
 should have been granted, and in the interval betweeu that 
 time and the time when the case was decided in the Supreme 
 Court, the county courts had been abolished : held, that as 
 the Court was not informed whether the record of the case 
 had been transferred, the only order practicable was, that 
 the case be remanded to the Superior Court, in order that 
 the plaintiff might take such steps as he might be advised. 
 Aycock v Harrison, 63 X. C. R. 145. 
 
 7. Causes under the Code cannot be "set for hearing and 
 transferred" to this Court; they fan come up only by appeal. 
 Wadsivorth v. Davis, X. C. R. 251. 
 
 25 
 
386 PEAOTICE— X.— XI. 
 
 8. As the Code of Civil Procedure does not provide for 
 writ of recordari, until further legislation the courts must be 
 governed iu respect to that writ by the rules of the common 
 law. Marsh v. Williams, 63 X. 0. R, 371. 
 
 9. Suits pending at the time of the adoption of the Code 
 of Civil Procedure are not governed in practice by such 
 Code ; therefore any set-off claimed by a defendant therein 
 must be a legal one, and such as could have been enforced 
 in Courts of law heretofore. Vallentine v. Holloman, 63 X. 
 C. E. 475. 
 
 10. Writs of summons issued, in January, 1869, should 
 have been returnable before the Clerk, and therefore it made 
 returnable before the Judge at Spring Term, 1869, on motion 
 by the defendant to that effect, should have been dismissed. 
 Since then the act of April 1, 1869, "to amend certain irre- 
 gularities," &c, allows such errors to be cured by amend- 
 ment, &c. Johnson v. Judd, 63 1ST. C. R. 498. 
 
 XI. REFERENCES, MOTIONS, ORDERS, RULES AND NOTICES. 
 
 1. Where a prima facie case is made against a sheriff, 
 either upon affidavit or other sufficient proof, a rule nisi is 
 granted, as of course. Schenck, Ex parte, 63 X. C. R. 601. 
 
 2. Certain expressions iu an affidavit — relied upon as im- 
 pairing its effect : held, to be surplusage. Ibid. 
 
 3. Perhaps, no notice of a motion is required, where cases 
 have come on regularly for trial at a term of the Court. Er- 
 xvin v. Lowery, 64 1ST. C. R. 321. 
 
 4. In a case involving the settlement of a complicated ac- 
 count, the C. C. P. (see sections 245 and 246) requires that 
 it be referred to referees to state an account, and objections 
 to their report must be made by way of exceptions to it, and 
 neither party has the right to require the facts to be passed 
 upon by a jury. Klutts v. McKenzie, U5 X. C. R. 102. 
 
 5. Where a decree is made directing an account between 
 the parties litigant to be taken without prejudice, and the 
 account is taken and exceptions thereto are filed, it is too late 
 for the defendant to demand a hearing of the cause by the 
 Court, upon the question of his liability to account. Latti- 
 more v. Dixon, 65 X. C R. 664. 
 
 6. Objections to the power of the referee to pass upon the 
 issues involved in the pleadings, should be made to the Court 
 before the appointment of the referee, and before proceeding 
 to hear the cause upon the report and the exceptions thereto 
 filed. Ibid. 
 
PEAOTIOE— XI— XII. 387 
 
 7. "Where a party fails to name a place or person, in the 
 county where the action is brought, where and upon whom 
 notices and pleadings can be served, the findings of such no- 
 tices and pleadings in the office of the Cleric ot the Superior 
 Court shall be sufficient. Maxwell v. Maxwell, 67 X. C. R. 
 383. 
 
 8. In an action to foreclose a mortgage, the Judge may, 
 if necessary, refer the matter to the clerk to settle the details 
 and report the balance clue, but if nothing is to be done ex- 
 cept to calculate interest, the Judge may do it himself, or di- 
 rect the clerk to do it instanter, and give judgment accord- 
 ingly. Latham v. Whitehurst, 69 X. C. R. 33. 
 
 See (Reference under the Code of Civil Procedure.) 
 
 XII. SOME MISCELLANEOUS RULES OF PRACTICE. 
 
 1. Under Rev. Code, ch. 32, s. 3, r. 5, it is error to set 
 down a cause for hearing until the second term after replica- 
 tion is filed, whether the testimony proposed to be offered by 
 the defendant be material or otherwise. Trammell v. Ford r 
 Phil. Eq. R., 330. 
 
 2. After a nol pros, had been entered as to one of several 
 defendants, upon motion by the respective parties remaining, 
 material amendments were allowed to each: held, that any 
 question as to costs upon the process agaiust the defendant 
 discharged, should have been settled at the time of such, 
 allowance ; and that upon such question being raised after 
 final judgment for the demand and costs, it will be presumed 
 by the court to have been settled. Bi/num v. Daniel, 63 
 X. C. R. 24. 
 
 3. Counsel have no right during the argument of a case 
 to make observations upon the fact that the other party to- 
 the cause has not come forward as a witness therein. Dev- 
 ries v. Haywood, 63 X. C. R. 53. 
 
 4. Where a lost execution was alleged to be a link in the 
 title of a plaintiff in ejectment: held, that such fact did not 
 render an application under an independent motion, made 
 without notice to the other party, a correct method of sup- 
 plying the loss ; also, that what was required of the plaintiff 
 was only, to notify the defendant that on the trial of the 
 ejectment the loss would be proved, and on doing so, to prove 
 its contents by parol. Stanly v. Massingill, 63 X. C. R. 558. 
 
 5. A suit had been brought to Spring Term 1867, and the 
 docket at that term showed that an incipitur was required by 
 the defendant, before pleading; upon the docket was also 
 
388 PEACTICE— XII— XIII. 
 
 this entry : '' Plaintiff charges for keeping bis mother-in-law," 
 no pleas were entered until the case was called for trial, at 
 Fall Term 1869 : held, that, as the court could not tell 
 whether the entry. " Plaintiff charges," &c, at Spring Term, 
 1867, was the incipitur required, or was, by its vagueness, 
 the occasion of calling for an incipitur, and also, considering 
 the subsequent actiou of the parties respectively, it could not 
 be said that the defendant had impaired his right to plead 
 at Fall Term 1869, and therefore, that it was erroneous in 
 in the Judge below, to restrict him in the exercise of such 
 right ; ex. gr. by refusing to allow him to plead the general 
 issue. Whitesides v. Green, 64 X. 0. E. 307. 
 
 6. Objections to the competency of testimony must be 
 taken in due time, if not, they are waived : therefore, where 
 a party was allowed to testify, upon examination in chief to 
 a conversation between himself and the defendant's testator, 
 and during the cross-examination, the defendant objected to 
 the competency of such testimony, and asked that it might 
 be excluded : held, that although incompetent, the objection 
 came too late. Meroney Y.Avery, 64 X. C. E. 312. 
 
 7. In a case where, prior to the act suspending the 0. 0. 
 P., judgment had been taken in the clerk's office for want of 
 answer, &c, and the defendant appealed to the Judge : held, 
 that the Judge had power to strike out such judgment, and 
 allow an answer or demurrer to be filed. Walston v. Bryan, 
 64 X. C. E. 764. 
 
 8. A negotiable instrument, the execution of which is ad- 
 mitted in the answer, must be produced on the trial, or its 
 loss accounted for. Morrow v. Alman, 65 X. 0. E. 507. 
 
 9. A statute is to be constructed prospectively unless a 
 contrary iuteution is clearly expressed therein. Therefore, 
 where an action was commenced on the 1 8th day of March, 
 1870, and subsequently the Legislatuee passed an act chan- 
 ging the mode of procedure, it can have no application to 
 such cause, and the action must be tried according to the law 
 existing at the commencement of said action. Mervin v. 
 Ballard, 66 X. 0. E. 398. 
 
 10. It is erroneous for a Superior Court to pronounce any 
 judgment, if the facts are controverted, until the same have 
 been ascertained in some of the modes provided for. Leggett 
 v. Leggett, 66 X. C. E. 420. 
 
 Sin. PAETIES. 
 
 1. Where a bill named certain persons, md prayed that 
 
PBACTICE— XIII —XIV. 389 
 
 they might be made defendants without expressly praying for 
 
 process against them: held, to be a sufficient designation of 
 them as parties, especially as they all appeared and joined in 
 the demurrer. Ferguson v. Hass, Phil. Eq. E. 113. 
 
 2. Where a bill was prolix, argumentative and inartificial, 
 and was demurred to on that account : held, that the proper 
 order was, for its reformation in these respects in the court he- 
 low, at the costs of the complainants. Ihid. 
 
 3. When a demurrer is filed for want of a proper party, 
 and from the facts presented by the pleadings, as in this case 
 the matter is left in doubt, the Court cannot render judgment, 
 but remand the cause. Bunting v. Fog, GO X. (J. E. 193. 
 
 4. When a pleading shows that parties other than those 
 of record, have an important interest in the decision of the 
 cause, the omission to set out their names is an inexcusable 
 error, as a complete decree cannot be made without their pre- 
 sence before the Court, and the Court cannot see under the 
 general phrase "certain parties" who they are. Whittedy. 
 Nash, GG X. C. E. 590. 
 
 XIV. OF THE TRIAL AND ITS INCIDENTS. 
 
 1. A Judge has the power to stop an Attorney who abu- 
 ses his privileges in his comments on a witness and his testi- 
 mony before the jury. State v. Williams, C5 X. C. E. 505. 
 
 2. It is discretionary with the court to stop counsel at the 
 time, who are making improper remarks to the jury, or to 
 wait and correct the error iu the charge. Jenkins v. N. C. 
 0. D. Co., G5 X. C E, 5G3. 
 
 3. Where counsel grossly abuses his privilege whilst ad- 
 dressing the jury to the manifest prejudice of the opposite 
 party, it is the duty of the court to stop him then and there; 
 otherwise it is ground for a new tiial. Ibid. 
 
 4. It is incumbent upon the party excepting, when the 
 error alleged consists in rejecting evidence, to show distinctly 
 what the evidence was, in order that its relevancy may ap- 
 pear, and that it may be seen that he has been prejudiced by 
 its rejection. Sweet v. Bryan, 6"> X. C. E. 019. 
 
 5. In all actions under the C C. P., where legal rights are 
 involved, and issues of fact are joined by the pleadings, the 
 plaintiff is entitled to a trial by jury, 'and cannot be deprived 
 of this right, execept by his consent. Andrews v. Pritchett, 
 G6 X. C. E. 3S7. 
 
 6. If it appear upon the trial that a party has been mis- 
 led in his preparation of the case, without his fault, the. 
 
300 PRACTICE— XIV.— XV. 
 
 Judge, has power to order ajurortobe withdrawn, and make 
 such other orders as may be proper. Pegram v. Stolte, 67 
 X. C. E. 144. 
 
 7. A Judge may, in his discretion, permit a blauk en- 
 dorsement on a note to be filled up at any time during the trial, 
 and even after verdict. Ogborne v. Teague, G7 X. C. E. 355. 
 
 8. On the trial an action upon a note due an intestate, 
 liis administeator was introduced and asked what his intes- 
 tate said about the note before his death — question ruled out. 
 Defendant's counsel argued to the jury, that if the intestate 
 ■were alive, he would be willing to leave the decision of the 
 case with him, &c. In reply the plaintiff's counsel had a 
 right to comment before the jury upon the objection of the 
 defendant to the introduction of the declarations of the intes- 
 tate. Chambers, AdmCr v. Greenwood, (iS X. C E. 274. 
 
 9. The non-introduction of a statement, in which it is re- 
 lied on that a note, the subject of the action, was brought into 
 account and is satisfied, is a proper circumstance for comment 
 before the jury, on the trial for the recovery of the amount 
 of the note. Ibid. 
 
 10. Proper time to ask for particular instructions is at or 
 before the close of the evideuce, and before the Judge has 
 given such instructions to the jury as he may think the case 
 requires. Ibid. 
 
 11. When issues are made up by the pleadings, parties 
 Lave the right to have those material to the determination 
 of the case submitted to a jury ; and for the presiding Judge 
 to withdraw such material issues and substitute others, is 
 error. Albright v. Mitchell, 70 X. C. E. 445. 
 
 See (Practice — Some miscellaneous rules of practice.) 
 
 XV. SUBMITTING QUESTIONS OF FACT TO A JUKY. 
 
 1. Pending a motion to set aside an execution, and cause 
 satisfaction of a judgment upon which it was based to be 
 entered upon record, a Judge of the Superior Court, can, in 
 the exercise of a sound discretion, submit such issues of fact 
 to a jury arising on conflict of testimony as he may deem 
 proper, and this court will not attempt to control its exercise. 
 Moye v. Cogdell, GG X. C E. 403. 
 
 2. Under our present system courts of law and equity 
 have been blended. Ibid. 
 
 3. When a Judge of the Superior Court has power to 
 pass upon questions of fact, in the admisistration of justice, 
 and he becomes perplexed by a conflict of testimouy he may 
 
PEAOTICE— XV. 391 
 
 -and should enlighten his conscience by referring their solu- 
 tion to the determination of a jury, and in the meantime to 
 cause the execution to be superseded. Ibid. 
 
 4. A jury is the appropriate tribunal to determine mat- 
 ters of fact rendered doubtful by contradictory evidence. 
 IUd. 
 
 5. A Judge may refer all questions of fact, which he can 
 lawfully determine, to the decision of a jury. Ibid. 
 
 6. In an action to set aside a deed for fraud, a Judge may, 
 by sec. 225 of 0. C. P., try such issues of fact as are made by 
 the pleading. He may also submit to a jury issues so framed 
 as to preseut any question of fact on which he doubts, but he 
 is not bound by their verdict, and may proceed to find the 
 facts otherwise than they have found ; and he may also find 
 facts not embraced in the issues submitted to them. Golds- 
 borough v. Turner, 67 N. C. R. 403. 
 
 7. Wheu the pleadings state the same material facts, and 
 no issue can be joined, it is proper for the court to withdraw 
 the case from the jury, and determine it as a question of law. 
 Cobb v. Harden, 67 N. 0. R. 472. 
 
 8. Where a plaintiff, in an action to recover possession of 
 land, alleged that the defendant held a bond for title under a 
 former owner now dead, and had made payments in part for 
 the land ; that said former owner had devised the land to a 
 daughter who conveyed to the plaintiff; the defendant an- 
 swered that by payments in money and in property and ser- 
 vices, which were to be taken as money, he had paid in full 
 for the land ; and plaintiff replied that the alleged payments 
 Mere not payments but items in an account which were bar- 
 red by the statute of limitation : lield, that the proper issue 
 was one for a jury, viz: whether the defendant paid his ven- 
 dor in full or partially, and it partially, how much. JEubanks 
 v. Mitchell, 67 N. 0. R. 34. 
 
 9. Pleadings on both sides being defective, cause re- 
 manded without costs to either party Ibid. 
 
 10. Where iu such a case a reference was made, and the 
 referee reported that the defendant had made partial pay- 
 ments exceeding his indebtedness for the land, and excep- 
 
 , tiocs were filed and sustained, on the ground that the items 
 allowed were barred by the statute : held, that there was a 
 misconception of the issue, or the issue made was immate- 
 rial. Ibid. 
 
 11. It is not the duty of a Judge, in passing on excep- 
 tions, to decide all questions of facts without a jury. On 
 the contrary, if the facts depend upon doubtful and conflict- 
 
392 PEACTIOE— XV— XVI. 
 
 ing testimony, he may cause issues to be framed and sub- 
 mitted to a jury for information. Maxwell v. Maxwell. 67 
 N. C. E. 383. 
 
 12. A Judge of the Superior Court in passing upon a 
 mixed question of law and fact, should, as required by 0. 0. 
 P., sees. 241, 242, state the tacts found, and the conclusion 
 of law separately. Foushee v. Faltershall, 67 K". 0. E. 458. 
 
 13. Where a case has been pending in the Supreme Court 
 since July, 1871, and after this Court had ordered issues of 
 lact to be made up and tried in the Court below, it is too 
 late to contend that such issues were, by consent of parties, 
 finally determined by his Honor below. Faulkner v. Hunt, 
 68 N. C. E. 475. 
 
 XVI. JUDGE'S CHARGE. 
 
 1. Both parties, haviug been introduced, as witnesses for 
 the plaintiff, the plaintiff testified to certain language as 
 having been uttered by the defendant, whilst the latter (upon 
 cross-examination) said that he did not remember that he 
 ever had any such conversation ; that the debtor had never 
 placed any property in his hands, and he had no property of 
 his in his hand." Upon this the Court instructed the jury, 
 that it was their duty to reconcile contradictions if they rea- 
 sonably could; that as the testimony of the plaintiff was pos- 
 itive, and that of the defendant " that he did not remember," 
 if they found there was no such agreement, it would be an 
 imputation upon the veracity of the plaintiff, whereas if they 
 found that there was, there would be no such imputation up- 
 on the veracity of the defendant, and in this way their state- 
 ments might be reconciled, but that it was a matter, for them : 
 held, that the court erred therein in intimating an opinion as 
 to a matter of fact. Hicks v. Crilcher, Phil. L. E. 353. 
 
 2. It having appeared upon the trial that the note in ques- 
 tion was in court, and apparently not claimed by the plain- 
 tiffs : held, to have been proper for the court to clear away 
 any doubts by enquiring of the counsel for the plaintiffs at a 
 subsequent stage of the trial, what disposition it was proposed 
 to make of the note. Luts v. Yount, Phil. L. E. 367. 
 
 3. In charging the jury the Judge inadvertently stated 
 that an argument, which was then suggested by himself, had 
 come from the plaintiff's counsel: held that the defendant had 
 no cause to complain. Ibid. 
 
 4. Where a lost letter was one of many that had passed 
 between a principal and his agent in reference to a mat- 
 
PEACTICE— XYI. 393 
 
 ter of business and its contents were not precisely admitted : 
 held, to be error for the court to take upon itself to state its 
 effect upon the relation between the parties to the correspond- 
 ence ; and that in such case the court, with proper observa- 
 tions on the law of agency, revocation, &c, should submit the 
 question of effect, &c, to the decision of the jury. Sneed v. 
 Smith, Phil. L. E. 595. 
 
 5. If a jury decide correctly a question of law improperly 
 left to them by the Court, the verdict cures the error of the 
 Court. Glover v. B. B. Co., 63 N. C. E. 510. 
 
 6. A Judge is not bound to follow the very words used by 
 counsel in a prayer for instructions, provided that he is sub- 
 stantially correct in the language which he does use. State 
 v. Brantley & WatUns, 63 N". C. E. 518. 
 
 7. Where the defendant in an indictment requested the 
 Judge to instruct the jury: " That it is the peculiar province 
 of the jury to judge of the credibility of the witness, and they 
 may take into consideration the manner of the witness upon 
 the stand, and also the unreasonableness of his statements ; 
 that if the jury are satisfied that the witness made a false 
 and corrupt statement in part, they ought to discard his tes- 
 timony altogether;" and the Judge gave the first introduc- 
 tion, but refused to give the second adding : " I will, for the 
 benefit of the defendant's attorney, go further, and say to the 
 jury, that they have no more right to discard entirely the tes- 
 timony of the witness, thau they have to commit perjury :" 
 held, that whatever might be said of the propriety of the lat- 
 ter remark, — taking the instructions altogether, there was no 
 error State v. Spencer, 64 N. C E. 316. 
 
 8. In a case where there are a number of witnesses on 
 each side who contradict each other, it would be improper 
 (generally,) tor the Court to select one of them, and instruct 
 the jury that if they believed Mm, they must find their ver- 
 dict in a particular way, because, among other reasons, that 
 would be to make the case turn upon his veracity, whereas 
 he might be truthful, and yet his testimony be liable to mod- 
 ification, or explanation by other parts of the testimony. 
 Anderson v. C. F. Steamboat Co., 64 N. C. E. 399. 
 
 9. A charge which substantially conforms to the instruc- 
 tions asked by a party, is sufficient; the Judge need not 
 adopt the words of such instructions. State v. Scott, 64 N. 
 C E 586. 
 
 10. A Judge is not required to charge the jury upon a 
 hypothetical case, and if the evidence does not justify the 
 instructions asked for, it is improper to give them. State v. 
 Haryett, 65 K". C. E. 669. 
 
394 PRACTICE— XVI. 
 
 11. It is sufficient if a Judge gives substantially the in- 
 structions asked for. IMcl. 
 
 12. When, on the trial of a prisoner, a prayer on his be- 
 half for instructions assumes certain facts to be in proof, and 
 in the opinion of the Judge there is no evidence tending to 
 prove them, he ought to say so, and thus disembarrass the 
 jury of the consideration both of the assumed facts and of 
 the questions of law predicated on their assumption. State 
 v. Dunlap, 65 N". C R. 288. 
 
 13. When instructions are asked for upon an assumed 
 state of facts, which there is evidence tending to prove, and 
 thus questions of law are raised which are pertinent to the 
 ease, it is the duty of the J udge to answer the questions so 
 presented, and to instruct the jury distinctly what the law is, 
 if they shall find the assumed state of facts to be true, and so 
 in respect to every state of facts which may be reasonably 
 assumed upon the evidence. IMcl. 
 
 14. If the charge of a Judge on a trial for murder is 
 correct as a general essay on homicide, and his propositions 
 taken generally are supported by the authorities ; still it is 
 not a full compliance with the statute, Rev. Code, ch. 31, 
 sec. 190, which requires the Judge to declare and explain to 
 the jury the law arising on the evidence. Ibid. 
 
 16. Where a Judge in charging a jury used this language, 
 to-wit : " If her character, (referring to a witness,) is of ordi- 
 nary respectability, you will take her testimony to be true, 
 unless she is fully and thoroughly contradicted," it is errone- 
 ous. It is the province of a jury to pass upon the credibility 
 of a witness, and the weight of the testimony, and although 
 the witness may be never so reputable, yet where there is a 
 conflict of testimony, the court cannot tell a jury that they 
 must take the testimony to be true. Such a charge is in vio- 
 lation of the act of 1796. State v. Parker, 60 K C R. 624. 
 
 17. Nor is this error corrected, where the Judge in a sub- 
 sequent part of the charge uses language, in referring to the 
 same witness, susceptible of two constructions. Ibid. 
 
 18. Where the complaint alleges no fraudulent represen- 
 tation in the sale of personalty, it is proper to charge the jury 
 that the plaintiff is not entitled to recover for a fraudulent 
 representation, a3 there is no such issue raised by the plead- 
 ings. Wilson v. Holley, m K C. R. 407. 
 
 19. It is not error to refuse auy instructions asked upon 
 iin hypothecation of facts. Ibid. 
 
 20. Where a Judge, in response to a prayer for special 
 instructions, complies strictly therewith, it cannot be error. 
 
PRACTICE— XVI. 395 
 
 More especially, when bis charge is quite as favorable as the 
 testimony warrant*. McLennon v. Chisholm, GO X. C. R. 
 100. 
 
 21. Where, on the trial of an action for breach of contract, 
 it is alleged that the original contract touching which there 
 was no dispute, had been varied, and the contents of certain 
 letters are relied on, and the same being shown to be lost, 
 there is parol proof of their contents, and it is admitted that 
 the letters contained a modification, and there was no con- 
 troversy as to the particular language used in them ; held, 
 that this court could not pronounce a charge erroneous which 
 submits to the jury to find whether or not the contract had 
 been modified as contended for, especially when the point 
 made in this court, to-wit : that his Honor should have in- 
 structed the jury as to the question of law, whether the evi- 
 dence proved a modification, does not appear to have been 
 suggested in the court below, but on the contrary, on the 
 trial it seemed to be conceded, that if the contents of the let- 
 ters were, as testified to, that there had been a modification 
 and the contest was as to the fact of the existence of the 
 letters. Calloway v. Bnjce, 06 X. C. R. 514. 
 
 22. Although the general rule is, that where a contract 
 lias existed in writing, it is the duty of the Judge, on proof 
 of its contents, (if lost,) to instruct the jury as to the legal 
 effect of the words, yet the rigorous application of this rule is 
 often impracticable, it being impossible in many cases, to sep- 
 arate the language used from its meaning, so as to eliminate 
 one from the other. Ibid. 
 
 23. Xor is it, in general, important when the words used 
 are untechnical, as iu such cases a jury is as competent to 
 pass on the effect as a Judge. Ibid. 
 
 24. There is uo formula by which Judges are bound, in 
 charging upon the degree of mental capacity, sufficient to 
 make a will. Lawrence v. Steel, GO X. C. R. 584. 
 
 25. A charge that a testatrix: must have had mind and 
 intelligence sufficient; at the time she executed the will, to 
 enable her to have a reasonable judgment of the kind and 
 value of the property she proposed to will, and to whom she 
 was willing it, is not erroneous, especially iu a case where 
 there was evidence of undue influence as well as incapacity, 
 nor was it rendered erroneous, though given in connection 
 with a refusal to give a prayer in vpsisimis verbis, a definition 
 of such capacity which had been approved by this court. 
 Ibid. 
 
 20. It seldom does justice to the Judge or the case on 
 
396 PEACTIOE— XVI. 
 
 trial, to select isolated expressions which have been held to* 
 be proper in other cases, and insist upon their being used by 
 the Judge in his charge, because it is seldom that two cases 
 are exactly alike, and if they are, and a charge in the first 
 case has been approved by the appellate court, non constat, 
 that it would not have been approved if expressed in other 
 language. Ibid. 
 
 27. A charge which misses the point of the case and fails 
 to enlighten the jury on the points in controversy cannot be 
 sustained. Burton v. Wilkes, 66 N". 0. E. 604. " 
 
 28. A Judge has not a right to hand to the jury a slip 
 of paper containing an abbreviated estimate of plaintiff's 
 claim for damages against the wish of the other party. 1 bid. 
 
 29. Where there is no evidence to sustain the declaration 
 of a plaintiff, it is the duty of the court to so instruct the 
 jury. McOombs v. N. C. R. K, 67 N. 0. R. 193. 
 
 30. A Judge, in commenting upon the testimony, may, 
 by his manner and emphasis, intimate an opinion upon the 
 facts, and violate the act of 1796. The record, however, 
 must show such peculiarity of manner and emphasis, that the 
 Court may see whether or not the act has been violated. 
 Reiger v. Davis, 67 N. 0. R. 135. 
 
 31. It has been accepted as the proper construction and 
 meaning of the Act of 1796, Rev Code, chap. 31, sec. 30, 
 though it goes beyond the words : that a Judge in charging 
 a jury shall state the evidence fairly and impartially, and that 
 he shall express no opinion on the weight of evidence. State 
 v. W. H. Jones, 67 K 0. R. 285 
 
 32. Where there is an exception to the charge of a Judge 
 for violating the act, it will not be sufficient to show, that 
 what he did or said might have had an unfair influence, or 
 that his words critically examined and detached from the 
 context and the incidents of the trial, were capable of a con- 
 struction, from which his opinion on the weight of testimony 
 might be inferred ; but it must appear, with ordinary cer- 
 tainty, that his manner of arraying and presenting the evi- 
 dence was unfair, and likely to be prejudicial, or that his 
 language, when fairly interpreted, was likely to convey to the 
 jury his opiuion on the weight of the testimony. 1 bid. 
 
 33. Where two witnesses were examined as to the condi- 
 tion and capacity of a supposed testator, neither of whom 
 spoke positively as to the facts, and the Judge in charging 
 the jury said : "When two witnesses of equal respectability 
 and opportunities testify as to a fact, the one positively and 
 the other uncertainly, the law gives the greater weight to 
 
PRACTICE— XVI. 397 
 
 the positive testimony :" held, that although this charge was 
 not strictly applicable to the case, yet, as it was a repetition 
 of a truism, is was not calculated to mislead a juror. Toive 
 v. Toive, 67 N. 0. R. 298. 
 
 34. If a Judge should intimate an opinion upon the facts, 
 in favor of one of the parties to a suit, that party has no 
 reason to complain. 1 bid. 
 
 35. Where a Judge in charging a jury expressed his 
 strong indignation that persons, in hearing of the alleged vio- 
 lence, did not rush to the rescue of the person upon whom it 
 was committed, also expressed his eagerness and desire to 
 punish them for their cowardice ; it was held, that such ex- 
 pressions were a clear intimation of an opinion upon the facts, 
 and a violation of the statute. State v. Brown, 67 N. 0. R. 435. 
 
 36. It is error in a Judge to leave a case to the jury upon 
 a hypothetical state of facts, unwarranted by the evidence. 
 Matthews v. Smith, 67 X. C R. 374. 
 
 37. The refusal of a Judge, on a trial of murder, to instruct 
 the jury that they ought not to convict on a simple confes- 
 sion, for the reason that if they believed the confession to be 
 true it was their duty to convict, is not error : especially so 
 when there is much corroborating testimony, and the proposi- 
 tion was a mere abstraction. State v Graham, 68 N, 0. R. 
 247. 
 
 38. If the instructions asked on a trial in the Superior 
 Court, aud given in the precise words asked for by the Court, 
 are so vague and obscure as to admit of two different con- 
 structions, one of which may possibly mislead the jury, it is 
 error, and a good cause for a venire de novo. Adams v. Beeves, 
 68 N. C. R. 134. 
 
 39. "When a plaintiff requests a Judge, on a trial in the 
 court below, to instruct the jury that the defendent must 
 support his defence, by a preponderance of testimony; and 
 instead of so doing his Honor tells the jury that they must 
 judge of the weight of the evidence, and if they believed 
 the testimony of the defendant, they should find for him : 
 held, to be no error, llowerton v. Lattimer, 68 N. C. R. 370. 
 
 40. The Judge who tries a cause has no right to intimate 
 in any manner his opinion as to the weight of the evidence, 
 nor to express an opinion on the facts. Powell v. W. & W. 
 Railroa I Co., 68 N. C. R. 395. 
 
 41. Where there is any evidence to the contrary, it is er- 
 roneous in the Judge to say, " We are not informed" of a 
 fact upon which it is for the jury to pass. Ibid. 
 
 42. Where there is conflicting testimony and divers wit- 
 
398 PE ACTICE— X VI. 
 
 nesses, it is seldom the case that the Judge cau pick out any 
 single witness, and say, if you believe him you must find for 
 the plaintiff or defendant. Brem v. Allison, 68 K C. E. 412. 
 
 43. There may be cases where it would be proper, but 
 generally it is safer to put the case to the jury upon all the 
 evidence, with proper explanations. Ibid. 
 
 44. Where there was evidence tending to show a state of 
 facts which w T ould entitle the plaintiff: to recover, and also 
 evidence tending to show a state of facts which would entitle 
 the defendant to a verdict and judgment, and his Honor 
 stated both questious and left it to the jury as a question of 
 fact : held, there was no error, Long v. Pool, 08 X. 0. E. 
 479. 
 
 45. It is the duty of the appellant in this court to show 
 error; otherwise the judgment below must be affirmed. 
 When there isconfloting testimon}', the Judge cannot be re- 
 quired to charge the jury that, if they believed a certain wit- 
 ness, they must find for the plaintiff or defendant, as the case 
 may be. Hardin v. Murray, 68 N. 0. E. 34. 
 
 46. A charge of the Judge in the Superior Court, which 
 is in part erroneous, but which calls the attention of the jury 
 as fairly as could be expected under the circumstances to the 
 material question on which they were to pass, is no ground, 
 for a new trial. Lewis v. Sloan, 68 N. 0. E. 557. 
 
 47. A prisoner has no right to an instruction from the 
 court that if the jury do not believe the testimony of the two 
 named witnesses he is entitled to an acquittal, when the case 
 stated shows that there were other witnesses who gave ma- 
 terial testimony tending to prove his guilt. State v. Baker, 
 69 K 0. E. 147. 
 
 48. The charge given at the request of the prisoner's 
 counsel on the trial below, " that the case of the State v. 
 Ingold, relied upon for the defence, was law in North Carolina, 
 out it was on the extreme verge of the new law," is no ground 
 for a new trial. State v. Harrison, 69 N". 0. E. 264. 
 
 49. In a suit on a note, the payment of which is relied on 
 as a defence, one of the defendants testified that at the time 
 the note was made, it was agreed that it was to be paid in 
 certain cotton goods, and that the defendants delivered the 
 goods to their agent to be delivered to a firm of which the 
 payee was a member, according to such agreement; and the 
 agent testified that he sold and delivered the goods to the 
 firm on the usual time of thirty days, nothing being said 
 about the note : It was held, that this was some evidence of 
 payment, which ought to have been submitted to the jury, 
 
PRACTICE— XVI. 399 
 
 and that his Honor below erred in charging that there was 
 no evidence of payment, (kirson v. Lineberger, 70 N. C. R. 
 173. 
 
 50. Tne rule that wbeu two witnesses of equal credibility 
 swears affirmatively and negatively as to a certain issue, 
 credit is to be given to the affirmative statement in prefer- 
 ence to tbe negative, is not a rule of law to be laid down by 
 the Court, and it was no error in tbe Judge to refuse so to 
 charge. Glenn v. Fanner's Bank of N. C, 57 X. 0. R. 191. 
 
 51. To an indictment for injuring a public school house, 
 tbe defendants, for a defence, setup a claim in a third person 
 to the house alleged to be injured, and justified under the 
 permission of such claimant, to commit the acts complained 
 of: held, that the charge of the Judge below " if the jury bi- 
 lieved the defendants honestly were of the belief that the 
 house was the property of" such claimant, "and he bad a 
 right to give it to them, they were not guilty ; but if the de- 
 fendants did the acts complained of, willing to ruu the risk of 
 a suit, or careless whether they had a right or not, that would 
 not protect them, they would be guilty ; or, if they did the 
 acts solely relying upon the promise of such claimant to pro- 
 tect them, they would be- guilty," was as favorable as the de- 
 fendants could ask, and was no good ground for a new trial. 
 State v. Boseman, 70 X. C. R. 235. 
 
 52. A plaintiff being examined in his own behalf, and 
 swearing that the defendant promised to pay a certain debt— - 
 the defendant swearing that he made no such promise, both 
 witnesses being of equal credibility, is not entitled to have 
 the jury charged by the Conrt, that as a rule of evidence, the. 
 positive testimony was entitled to more weight than the neg- 
 ative testimony. Such rule is subject to so many exceptions 
 as not to be of much practical use ; and if carelessly adminis- 
 tered, may work much mischief. Smith v. Mcllwaine, 70 
 X. C. R. 287. 
 
 53. In our practice, the Judge below is not required to 
 recapitulate the testimony given in on a trial before him a 
 secowt time, although one of the parties may request it to be 
 done. Aston v. Craigmiles, 70 N. C. R. 31G. 
 
 54. A sues B on a note, which he swears he obtained 
 from C under the following circumstances : C hands a note 
 to A, telling him to collect it if possible, and from the pro- 
 ceeds pay himself $800, being the amount of a note held by 
 A against 0, and pay over the balance to him, C : held, that 
 the charge of bis Honor below, that if they believe the above 
 statement of A, the plaintiff, he had such an interest in the 
 
400 PEACTICE— XVI.— XVII— XVIII. 
 
 note as entitled him to recover, was right, and that the de- 
 fendant was not entitled to a new trial for misdirection. 
 Willey v. GatUng, 70 K 0. E. 410. 
 
 55. Held further, that the charge of his Honor, on the 
 issue as to whether the note had beed paid, that if they be- 
 lieve the defendant, they should find the note paid ; but if 
 they blieved the plaintiff, they should find the note had not 
 been paid, was unsatisfactory and improper, on account of 
 which, the defendant is entitled to a new trial. Ibid. 
 
 56. It is prejudicial to the rights of the plaintiffs, for the 
 presiding Judge, on the trial below, to charge the jury that 
 " the plaintiffs are not entitled to recover in any event, and 
 if the issues were found in their favor, he would set aside the 
 verdict," and afterwards to submit the issues to be passed 
 upon by the jury to "say how the matter was." Dula v. 
 Young, 70 N. 0. E. 450. 
 
 57. When on the joint trial of two prisoners for murder, 
 the presiding Judge directs the acquittal of one, remarking 
 at the time, "I shall direct an acquittal as to him, although 
 I think it not improbable that he was there," the other pris- 
 oner not being in any manner prejudiced by such remark, has 
 no right to complain and is not entitled to a new trial. State 
 v. Martin, 70 N. CE. 628. 
 
 XVII. MOTION IN ARREST OF JUDGMENT. 
 
 A motion in arrest of judgment, rests on error upon the 
 face of the record; and any statement of the case by counsel 
 tends to confuse instead of aid the court, who are obliged to 
 examine the whole record, and pronounce judgment accord- 
 ing to the very right and merits apparent thereon. State v. 
 Bobbin, 70 N. 0. E. 81. 
 
 XVIII, ON APPEALS. 
 
 1. Where the transcript in an equity cause contained 
 only the following entries, "Injunction executed, Answer 
 filed, Continued, Defendant appeals to Supreme Court," the 
 court, upom motion, dismissed the appeal. Mitchell v. Moore, 
 Phil. Eq. E. 281. 
 
 2. The Judge in the court below is not authorised to send 
 up a statement in equity cases. Ibid. 
 
 3. The Supreme Court cannot determine between con- 
 flicting records of a Superior Court, nor will it pass on an 
 opinion of a Judge, which proceeds upon a state of facts dif- 
 
PRACTICE— XYIIL— XIX. 401 
 
 fereut from tbat agreed to by the parties, and different from 
 that certified as of record to this court. Williams v. Council, 
 05 X. 0. R. 10. 
 
 4. It is the privilege of an appellant to make up his case, 
 and it is his duty to do it, so as intelligibly to exhibit the 
 error in the judgment, of which he complains; and the 
 rules of practice give him all the necessary power to do so. 
 Ordinarily, it he tail to do so, the only course open to the 
 Supreme Court is to confirm the judgment below, not because 
 it is thought to be right, but because it cannot be seen to be 
 wrong. iMd. 
 
 XIX. IN THE SUPKEME COUKT. 
 
 1. "What are the facts which accompany the making of 
 an entry, is a matter to be extracted from the evidence 
 only by the Judge of the court below, and his finding there- 
 upon cannot be reviewed by the Supreme Court. Davis v. 
 /Shaver, Phil. L. II. 18. 
 
 2. Where error does not appear upon the record trans- 
 mitted to the Supreme Court, the judgment below must be 
 affirmed. Ibid. 
 
 3. When a final judgment is rendered in the Supreme 
 Court upon an appeal from a final judgment in the Superior 
 Court, the latter court has power to issue no other process in 
 the case but an execution for its own costs. Grissett v. 
 Smith, Phil. L. R. 297. 
 
 4. Where the case transmitted to this Court shows that 
 one party, in order to establish his title to land, tendered 
 evidence of & parol lease thereof, and that it was rejected by 
 the presiding .Judge: held, that it will not be presumed, in 
 the absence of any reason assigued, for the purpose of sup- 
 porting the ruling below, that the lease was one which the 
 Statute of Frauds requires to be in writing. Brown v. Wash- 
 ington, C3 X. C. R. 514. 
 
 5. In order to make out error in the direction of the 
 Judge below, it is not necessary to show that the evidence 
 excluded would have made a good case for him who offers it 
 — but, that by its exclusion he was prevented from develop- 
 ing his case. Ibid. 
 
 <i. In old equity cases depending at the adoption of the 
 
 Constitution, and brought here by appeal, if the facts are 
 
 not found and set out, but the evidence fully satisfies the 
 
 Court on which side the conscience and justice ol the case 
 
 20 
 
402 PEACTICE— XIX. 
 
 lies, it will proceed to bear and determine the same. Turpin 
 v. Herren, 06 X. C. E 519. 
 
 7. In such cases, if this Court is satisfied that a note in 
 possession of the wife of one, as a mere custodian, was obtain- 
 ed from her through the covin and cajolement of the maker* 
 under pretence of a settlement, it will not decree a re-execu- 
 tion (the note being overdue) but an account of what is due 
 thereon, and render a decree for such amount upon the prin- 
 ciple of surcharging and falsifying. Ibid. 
 
 8. The Supreme Court cannot reverse the finding of a 
 Judge below, upon the facts, yet they have a right to reverse 
 his ruling upon the legal effect and operation of a record. 
 Gills v. Fuller, 66 X. C. E. 111. 
 
 9. After a judgment, the statutes of amendment cure de- 
 fects arising from "mistake in the name of any party or per- 
 son, or for any informality in entering judgment, or in mak- 
 ing up a record." Eev. Code, ch. 3, and *' no variance be- 
 tween allegations and proof shall be material, uuless it has 
 misled." C. C. P., sec. 128. Ibid. 
 
 10. A judgment appealed from must be affirmed in this 
 Court, no error being assigned on the record, in cases where 
 the statement as prepared by the appellant has been returned 
 with objections, and the appellant bad failed to apply to the 
 Judge below, to give the parties a day to settle the case is. 
 prescribed by sec. 301, C. C. P. Lentile v. Hart, GO X. C. E. 
 421. 
 
 11. In such case, upon proper affidavit, an order will be 
 made to the Judge to certify a statement, but if the Judge 
 returns to such order that no application to settle the case 
 had been made, the appellant is without remedy. Hid. 
 
 12. Although issues, in old equity suits pending in this 
 Court, have been settled and ordered here, if after a verdict 
 on them this Court on a careful examination of the whole 
 case discovers that the full merits of the controversy cannot 
 be determined in the issues so found, it will order any other- 
 issues it deems necessary to a complete determination. 1 lid. 
 
 13. Whether a partner on a deficiency of partnership 
 assets, to pay partnership debts, is entitled to a personal 
 property of $500 out of such assets in preference to the said 
 debts, and whether if such partner has individual property 
 sufficient to cover such exemption, he shall be compelled to* 
 resort to that, are questions of great importance and de- 
 serving serious consideration, but as the facts out of which 
 they arise are only set forth inferentially, this Court will not 
 proceed to consider them, but remand the cause to the end 
 
PRACTICE— XIX— PEOCESS. 403 
 
 that the facts may be ascertained and the rights of the par- 
 ties declared. Burns v. Harris, 66 X. C. E, 509. 
 
 14. In equity cases pending at the adoption of the C. C. 
 P., this Court can either try the facts or .direct issues to be 
 sent down, but usually adopts the latter course as in this 
 case. Burbank v. Wiley, OG X. C. E. 58. 
 
 15. This Court has no power to order a certiorari with- 
 out requiring bond and security thereon. Weber v. Taylor, 
 66 X. C. E. 412. 
 
 16. As a general rule the Supreme Court will not decide a 
 case where nothing but the question ot costs is involved ; but 
 if some important substantial right be involved, an exception 
 will be made and an opinion given. Martin v. Sloan, 69 X. 
 C. E, 128. 
 
 17. The relief sought in the complaint of a plaintiff must 
 be sought in the court below, aud must not be sprung in the 
 Appellate Court for the first time. Kennedy v. Johnson, 69 
 X. C. E. 249. 
 
 18. A point which the bill of exceptions or case stated 
 shows was not taken in the court ^elow, cannot be taken in 
 this court. State v. Jones, 69 X. C. E. 16. 
 
 19. AVhere a petition to sell land was filed in the court of 
 Equity prior to the adoption of the Constitution in 1868, and 
 orders were made therein before that time, and after that 
 year a motion was made against the clerk and master in the 
 same cause, the new mode of procedure will apply to it, and 
 upon an appeal, the Supreme Court will not take jurisdiction 
 to rehear any issues of fact decided by the Judge in the court 
 below, but if it appears that such issues were decided by the 
 Judge without objection from the parties, and that his decis- 
 ion was clearly right, the Supreme Court will proceed to act 
 upon it, and confirm his judgment. Rountree v. Burnett, et 
 al, 69 X. C. E. 76. 
 
 See (Practice — Submitting questions of fact to the jury, 
 10.) 
 
 PROCESS. 
 
 1. An attachment issued by the clerk of the court for a 
 sum within the jurisdiction of the Court, and made returna- 
 ble to the proper term of the Court, will not be dismissed for 
 want of form, because directed " to any Constable or other 
 lawful officer to execute and return within thirty days, (Sun- 
 
404 PROCESS. 
 
 days excepted,) " it appearing that it was executed by the 
 sheriff. Askew v. Stevenson, Phil. L. R. 288. 
 
 2. Writs signed in blank by Clerks, and handed to Attor- 
 neys, for their use, it subsequently filled up by the latter are 
 regular and sufficient writs. At all events, such writs when 
 returned and received by the Clerks are regular as against 
 them. Prosecution bonds taken by the Attorneys in such 
 cases are as if taken by the Clerks, and will prevent the in- 
 curring of the penalty for not taking such bonds, even al- 
 though not returned at the first Court with the writ. Croom 
 v. Morrisey, 63 N. C. R. 591. 
 
 3. Under the act of March 16th, 1869, suspending the 0. 
 C. P., the summons in a civil action is to be returned to the 
 Term. Jones v. McClair, 64 tf. C. R. 125. 
 
 4. Therefore, an action in which the summons was return- 
 able before the Clerk, upon demurrer by the defendant, will 
 be dismissed; and an incidental warrant of attachment (issued 
 because defendant was removing his goods, &c.,) although 
 properly returnable, will follow the fate of the action. Ibid. 
 
 5. Writs of summons in civil actions must (by the act of 
 1868-'9, ch. 76,) be issued by the Clerk, and made returnable 
 in term time. Mc Arthur v. McJEJachin, 64 N. C. R. 72. 
 
 6. A prosecution bond executed where uo summons is is- 
 sued, is inoperative, and therefore if an injunction bond have 
 been executed in such case, judgment for the costs of the de- 
 fendant may well be given against the parties thereto. Ibid. 
 
 7. Where process in the body of it purports to be original, 
 an endorsement of "alias " or " pluries " by the Clerk, will not 
 change its character. Simpson v. Simpson, 64 N". C. R. 427. 
 
 8. A court has no power to amend process returned at a 
 former term, without giving notice to persons whose rights 
 have previously accrued. Ibid. 
 
 9. In all actions "whose object is to bind real estate be- 
 longing to a wife, service of the summons must be inadej>er- 
 sonalhj upon her, as well as upon her husband. Boiuland v. 
 Perry, 64 K C. R. 578. 
 
 10. In an action which involved the question, whether a 
 conveyance of land to a wife was not based upon a consider- 
 ation paid by her husband, and was not, therefore, to be sub- 
 jected to claims by his creditors, the summons was directed 
 to both husbaud and wife, but the copy was delivered to the 
 husband alone: held, that the judgment rendered therein 
 against the wife by default, must be vacated. Ibid. 
 
 11. A summons (with warrant of attachment) was issued 
 returnable November 1st, but was not returned until Govern- 
 
PEOOESS.— PUBLIC LAW. 405 
 
 ber 26th, the day before the warrant was returnable, and 
 then it was returned, " Not to be found," &c. ; on November 
 27th the plaintiff was allowed to continue the case, because, 
 by accident, due advertisement had not been made : held, 
 that, under the circumstances, the advertisement was the sub- 
 stantial process, and that a failure duly to return the sum- 
 mons, was no discontinuance. Church v. Fumiss, 64 N. C. 
 
 C.659. , 
 
 12. A motion, and not a demurrer, is the proper method 
 of taking advantage of a discontinuance. Ibid. 
 
 13. A summons in a civil action before a Justice of the 
 Peace does not require to be excuted by leaving a copy with 
 the defendant; the C C. P., sees. 82 and 504, rule 15, not 
 embracing such process returnable before a magistrate. 
 Kirldandv. Hogan, 65 N. 0. E. 144. 
 
 14. A summons issued from the court of one county can- 
 not be made returnable unto the court of another. Bower- 
 ton v. Tate, W N. 0. E. 431. 
 
 15. In an action against a foreign corporation, where the 
 plaintiff resides in this State, or when the corporation has 
 property in the State, or when the cause of action arose 
 therein, service of a copy of the summons upon the general 
 or managing agent is sufficient ; but where neither one of 
 the conditions exist, service must be made upon some one of 
 the principal officers. Cunningham v. Southern Express Co., 
 67 N. E. 425. 
 
 16. Irregular process, after it has been set aside, is no 
 justification to the plaintiff in the action, or his attorneys 
 and aiders. Woods v. Jordan, 69 N. 0. E. 189. 
 
 17. A summons served on defendant commanding him to. 
 auswer on a day certain, which day is less than twenty days 
 from the time of service, is not uecesssarily on that account 
 void, and the Probate Judge is not bound to dismiss it. He 
 should have allowed the defendants the time allowed by the 
 Code for an appearance. Guion v. Melvin, 69 N. C E. 242. 
 
 See (Coroner.) 
 
 PUBLIC LAW. 
 
 1. The occupation during the late war of parts of the 
 State by the forces of the United States cannot be regarded 
 as an occupation by a "public enemy." State v. Bell, Phil, 
 L. E. 76. 
 
406 PUBLIC LAW. 
 
 2. A fictitious sale of a horse to prevent it from being 
 impressed by the Confederate Government will not estop the 
 owner from afterwards asserting his title thereto ; and in 
 such case, upon the vendee's claiming title to the horse, the 
 vendor may bring suit without making a formal tender of the 
 note which was one of the forms attending the sale. Lutz 
 v. Yount, Phil. L. E. 307. 
 
 3. Address of Chase, C. J., to the Bar attending the Cir- 
 cuit Court of the United States at June Term, 1867. Phil. 
 L. E. 389. 
 
 4. Compulsory payment of a debt to a receiver under the 
 Sequestration Acts of the Confederate Government, is no 
 defence to a suit brought upon such debt by the creditor. 
 JShortridge v. Macon, Phil. L. E. 392. 
 
 5. The suspension of intercourse consequent upon the 
 recent war did not prevent interest from accruing between 
 citizens adhering to the respective parties thereto. Ibid. 
 
 6. Discussion and statement of the principles in regard 
 to treason, &c , which affect the position of those who took 
 part against the United States in the late war. Ibid. 
 
 7. A lieutenant and a private in the army of the United 
 States, who by command of their captain, took from a citizen 
 on the 17th of May, 18G5, two horses, were thereby guilty 
 of a trespass. Wilson v. Franklin, 63 1ST. C. E. 259. 
 
 8. Where an officer in the military service of the Confeder- 
 ate States, whilst absent from such service contracted with a 
 a railroad company to transport him to the headquarters of 
 the army in order to report to the commander-in-chief, and 
 received personal injury on the route by the negligence of 
 such company : held, that because then and there engaged 
 in an act of hostility^to the United States, he was not entitled 
 to recover damages. Turner v. N. C. B. R. Co., 63 jST. 0. E. 
 522. 
 
 9. Such defence arises upon the plea of the general issue. 
 1 bid. 
 
 10. The plaintiff, in 1864, at Elizabeth City, within the 
 Federal lines, as sub-agent for the State, purchased hats to 
 be conveyed to the defendant (his principal,) in Halifax 
 county, within the Confederate lines, for the use of the State 
 troops. The hats were transported into Halifax county to 
 the residence of the defendant, but were not sold to the 
 State on account of their high price, and thereupon the de- 
 fendant purchased them, agreeing to give for each, thirty 
 pounds of lint cotton. Subsequently the defendant refused 
 to pay for them : held, That the contract of sale between 
 
PUBLIC LAW. 407 
 
 the parties was not against the policy of the government of 
 the United States; that the ordinance and act establishing a 
 scale of values, had no application ; and that the plaintiff's 
 measure of damages, was the value of the cotton in gold at 
 the time and place of the contract, adding, for Treasury 
 notes, the premium on gold at the time of the verdict. Gar- 
 rett v. Smith, 0± X. 0. K, 93. 
 
 11. Measures taken during the war by parties, whether 
 States, counties or individuals, the object of which was to 
 counteract plans set on foot by the United States for the 
 suppression of the rebellion, were, and are, contrary to the 
 public policy of that Government; and so, contracts arising 
 out of them, conuot be enforced. Leake v. Comm'rs of 
 Richmond, 04 N. C. E. 134. 
 
 12. Therefore, notes taken for money lent, in 1872, to a 
 county to enable it to provide salt for its citizens, and thus 
 aviod one of the penalties of blockade, are void. Ibid. 
 
 13. The present State and County authorities are under 
 no obligation to fulfil contracts made by their predecessors 
 during the rebellion, unless they come within the provisions 
 of the Ordinance, ot 1805, (October 18th,) "Declaring what 
 laws aud ordinance are in force," &c., and that requires such 
 as it validates to be "consistent with allegiance to the Uni- 
 ted States," which is not true of the transaction in question. 
 
 14. The burden of proving that any act of the State au- 
 thorities during the late rebellion which maybe under debate, 
 was " consistent with allegiances," is owing to a general posi- 
 tion of these authorities, upon the party who asserts it. Ibid. 
 
 15. Transactions like that under consideration fall under 
 the provisions of the Ordinance, of 1805, (Oct. 19th,) and 
 the Constitution of 1808, (Art. viii, sec. 13,) forbidding the 
 payment of obligations incurred in aid of the rebellion, directly 
 
 or indirectly. 1 bid. , . 
 
 10. Those prohibitions are merely declaratory of princi- 
 ples of the common law in regard to contracts, and therefore 
 do not impair the obligation of the contracts referred to. Ibid. 
 
 17. The distinction between such acts of the State autho- 
 rities during the recent war as are valid, and such as are not, 
 turns upon the enquiry whether or not they were extraordi- 
 narv, arising out of the condition of things, and intended to 
 obstruct or modify some part of the policy of the United 
 States in regard to the rebellion, or not. Ibid. 
 
 18. Military officers charged with a particular duty, may 
 take private property for public use without making them- 
 
408 PUBLIC LAW. 
 
 selves trespassers, but in such cases, the necessity must be 
 urgent, and as such will not admit of delay, and where action 
 upon the part of civil authority in providing for the want, will 
 be too late. Bryan v. Walker, 64 N. 0. E. 141. 
 
 19. The burden of proviDg such exigency, in case of suit, 
 devolves upon the defendants. I hid. 
 
 20. Therefore, where all that the case showed, was, that 
 a wagon and two mules of the plaintiff bad been seized in 
 January, 1863, in Wilkes County, by the defendant com- 
 manding a detachment of Confederate troops, under the parol 
 orders of a Brigadier-General, for the transportation service 
 of the detachment; and nothing appeared as to the exigency 
 of the necessity (if any) for such serviee : held, that the de- 
 fendants had not made out a defence. Ibid. 
 
 21. The State " Amnesty Act " of 1866, does not include 
 cases of civil remedy for private injuries ; unless (sec. 4,) when 
 the injury occurred under some law, or authority purporting 
 to be a law, of the State; which the parol orders here could 
 not pretend to be. 1 bid. 
 
 22. Qucere as to the power of the State to pass such an 
 act in regard to civil remedies for injuries ? Ibid. 
 
 23. Destruction of whiskey by a provost-marshal, under 
 the authority of the Confederate States, in 1862, cannot be 
 claimed as the act of a publicenemy, by a Railroad Company 
 situated within the limits of that government, and recognizing 
 its control. Patterson v. N. C. B. B. Co., 64 N. C. 11. 147. 
 
 24. Leaving leaking barrels of whisky, lor a day and night, 
 in a car whose doors were nailed up, standing upon the track 
 in a village, at that time a military post, was gross negli- 
 gence ; and rendered the Railroad Company responsible for 
 its destruction by the provost-marshal under his authority in 
 matters of police. 1 bid. 
 
 25. During the late war, an administrator, having in his 
 hands a distributive share belonging to one of the next of 
 kin residing in Illinois, upon being called upon by the Dis- 
 trict Court of the Confederate States to answer certain in- 
 terrogatories propounded for the purpose of finding whether 
 he had in hand any property liable to sequestration, without 
 demur or further requisition, paid over to the receiver such 
 distributive share, five months before he settled up the estate : 
 held, that he did not therein exhibit ordinary care, and there- 
 fore was still responsible to the next of kin, for such share. 
 Fisher v. Bitchey, 64 K C K. 172. 
 
 26. A contract made during the recent war, — a part of 
 the consideration for which was the carrying of the mail of 
 
PUBLIC LAW. 409 
 
 the Confederate States by the defendants, cannot now be en- 
 forced, beiug against the policy of the government. Clem- 
 mons v. Hampton, 64 N. C. R. 264. 
 
 27. Obiter, the contract being void, property purchased 
 by the defendant in the course of it may be recovered, or 
 damages had for its conversion. Ibid. 
 
 28. Where a horse was taken from a private citizen of 
 Randolph county, about the 2nd of May 1865, (it did not ap- 
 pear by whom,) and afterwards, (July 26th 1865,) was sold 
 at a public government sale held in Raleigh, by au A. Q. M. 
 of the U. S. Army, being then branded as United States 
 property : held, that the title of the original owner was not 
 thereby extinguished. Black v. Jones, 64 N. 0. R- 318. 
 
 29. A charter granted by the State Convention of 18fil-'2, 
 is valid, if included within the terms of the 18th of October, 
 1865. Sapona Co. v. Holt, 64 N. 0. R. 335. 
 
 30. That such charter required the Board of Directors to 
 be " citizens of the Confederate States," is immaterial. Ibid. 
 
 31. Money lent to a county during the recent war, in 
 order to procure salt for the use of soldiers' families and 
 others, cannot be recovered ; nor does it make any difference 
 that the debt has been recognized by the county since the 
 surrender, and a part of it paid. Setser v. Commissioners of 
 Catawba, 64 N. C. R. 516. 
 
 32. Quaere, Whether county officers who pay, and the 
 creditor who receives payment of, such money, are not liable 
 to repay it to the county. Ibid. 
 
 33. Money lent with the knowledge that it is to be used 
 in equipping a military company about to enter the service 
 of the Confederate States, cannot be recovered, the consider- 
 ation being illegal. Smitherman v. Saunders, 64 N. C. R. 
 522. 
 
 34. That it was not lent for the express purpose of equip- 
 ping such company, but merely because the plaintiff had 
 money to lend, is immaterial. Ibid. 
 
 35. A bond given in consideration of the loan of money 
 with which to put a substitute into the Confederate army, is 
 upon illegal consideartion, and therefore cannot be enforced. 
 Critcher v. Holloway; S. P. Kingsbury v. Gooch, 64 "N". C R. 
 526 and 528. 
 
 36. The Board of County Commissioners is not the repre- 
 sentative of the former County Court, even as regards mat- 
 ters of administration ; therefore, a suit pending against the 
 latter, at the time of its dissolution, cannot be revived 
 against the former. Carson v. Comm'rs of Cleaveland, Co. 9 
 64 N. C. R. 566. 
 
410 PUB. LAW, PRINT'G, TEE AS 'E.— RAILWAYS. 
 
 37. Cities, &c, are responsible to their officials for ser- 
 vices rendered to them by the latter during the existence of 
 the Provisional Government. Boyle v. Newbern, 04 N. 0. R. 
 G64. 
 
 PUBLIC PRINTING. 
 See (Office and Officer, 25.) 
 
 PUBLIC TREASURER. 
 
 1. The Public Treasurer is not bound, under the ordi- 
 nance of the Convention, ratified the 11th of March, 1808, 
 to accept "special tax bonds" and to deliver a like amount of 
 Chatham Railroad bonds in exchange therefor, to th e Raleigh 
 and Augusta Air-Line Railroad Company. Raleigh and 
 Augusta Air-Line Railroad Company v. D. A. Jenkins, 08 
 N. C. R. 499. 
 
 2. The court has power to compel the Public Treasurer 
 to do only such an act as involves no official discretion, and 
 as is required by an express command of the General Assem- 
 bly. Ibid, 502. 
 
 3. Under the ordinance of the Convention, made 11th of 
 March, 1808, in favor of the Chatham Railroad Company, 
 the Public Treasurer is not bound to accept in exchange for 
 mortgage bonds of said Company any State bonds issued 
 after the passage of the ordinance. Ibid. 
 
 RAILWAYS. 
 
 1. Where the charter of a Rail Road Company provided, 
 that upon the failure by subscribers to its stock to pay instal- 
 ments as called for, " the directors may sell at public auction," 
 &c, such stock, and, in case enough were not produced there- 
 by to satisfy the subscription, might sue for and recover the 
 balance from such subscriber : held, that upon a failure by a 
 subscriber to pay instalments as called for, it was optional 
 with the company to bring suit against him without making 
 sale as above, or, to sell and sue for the balance. Western 
 R. R. Co. v. Avery, 04 N. C R. 491. 
 
RAILWAYS, 411 
 
 2. Also, that the plea of the statute of limitations barred 
 a recovery ot so much of such subscriptiou as was included in 
 calls made more than three years before suit was commenced. 
 Ibid. 
 
 3 A Railroad Company may dispense with the assess- 
 ment of damages by commissioners for passing over the land 
 of a proprietor, by promising to settle and pay it without as- 
 sessment, and the laud owner may recover upou the special 
 promise. Plott v. W. N. C E. E. Co., Go N. 0. R. 74. 
 
 4. The Korth Carolina Rail Road Company is not required 
 under the 2Gth section of the charter to construct crossings 
 and bridges over their track except where public roads cross 
 the same, which have been kept up by the appointment of 
 overseers and hands to work and keep them in repair. Coon 
 v. N. C, E. E. Co., 65 N. C. R. 507. 
 
 5. It is enacted by the Act of 185G-'57, ch. 7, "that when 
 any cattle or other live stock shall be killed or injured by the 
 engines or cars running upon any railroad, it shall be prima 
 facie evidence of negligence ;" this rule can only be rebutted 
 by showing that the agents of such railroad company used all 
 proper precautious to guard against damage. It is not suffi- 
 cient to prove that there was probably no negligence. Battle 
 
 W. & W- E. E. Co., GG N. C. R. 343. 
 
 G. Independent of The legal presumption, where railroad 
 •cars were left on an inclined plane, where they could be easily 
 set in motion, and were very insecurely fastened, and one of 
 the animals, for the killing of which this suit was brought, 
 was killed a month previous to the other, by a car, which had 
 escaped and run down the same grade, and the agents of the 
 defendant being thus apprised of the danger of such action, 
 did not use proper precautions to prevent further injury : 
 held, to be gross negligence, fur which the company was re- 
 sponsible. Ibid. 
 
 7. "Where a railroad compan} T issued bonds, payable at 
 their office, in a particular way, and at the maturity of the 
 bonds there was no office of the company at the place: held, 
 that a demand for payment elsewhere was sufficient. Alex- 
 ander v. Tenn,, Ohio & At. E. E. Co., G7 X. 0. R. 198. 
 
 8. A bond of a railroad company for the payment of 
 money, executed in 18G2, conies within the provision of the 
 ordinance of the Convention of 18G5, and is " presumed to 
 be solvable in money of the value of Confederate currency, 
 subject to evidence of a dilfereut intent by the parties." 
 Ibid. 
 
 i). In the absence of all evidence to show the cbusidera- 
 
412 EAILWAYS. 
 
 lion of such bonds, or that the parties intended otherwise 
 than is presumed by the ordinance, a different intent will not 
 be implied from a provision in the charter, that the Company 
 may make contracts for building the road, and may pay con- 
 tractors in bonds at par value. Ibid. 
 
 10. Where the owner of land seeks to recover damages 
 for the injury resulting from the location of a railroad on his 
 laud, he must pursue the remedy prescribed by the charter 
 of the railroad company, as this statutory provision takes 
 away, by implication, the common law remedy by action of 
 trespass on the case. Mclntire v. W. N. C. B. B. Co., 67 
 K". 0. E. 278. 
 
 11. A sale of shares of stock in a railroad company car- 
 ries with it the dividends declared by the company ; if tbey 
 are to be paid at a day subsequent to the transfer of the 
 stock. Burroughs & Springs v. N. C B. B. Co., 67 N. 0. 
 E. 376. 
 
 12. Therefore, where the North Carolina Eailroad Com- 
 pany declared a dividend on the stock of said Company, on 
 the 16th day of February, 1870, to be paid on the first days 
 of April and July thereafter, and the owner of certain shares 
 of stock sold and transferred the same on the 17th day of 
 February : held, that the purchaser of said shares of stock 
 acquired the dividends, as well as the stock. Ibid. 
 
 13. A complaint seeking to charge the lessee of the N. 
 C. Eailroad with damages, for refusing to transport the com- 
 plainant, to whom the lessor of said road had issued a free 
 pass for life, not alleging any obligation on the part of the 
 lessee, by contract or otherwise, to carry the complainant 
 over the road, free : held, to be bad on demurrer, and that 
 the Judge below was right in dismissing it;. Turner v. Bich- 
 mond &. Danville B. B. Co., 70 N. C E. 1. 
 
 14. The free pass given by the lessor, the N. C. Eailroad 
 Company, was only a license, without any consideration in 
 law, which that company could revoke at pleasure, and did 
 revoke by leasing the road to the defendant. Ibid. 
 
 15. The North Carolina Eailroad Company, as well by its 
 charter, Act of 1848-9, chap. 72, and the supplemental acts 
 thereto, as upon general principles, has the power to deposit 
 or loan its surplus funds, and of course may bring the neces- 
 sary actions to recover the sums loaned. North Carolina B. 
 B. Co. v. Moore, 70 N- C. E. 6. 
 
 16. In a suit to recover damages for certain trespasses 
 brought by one Board of Directors of a railroad company 
 against another Board, claiming to be the legally appointed 
 
RAILWAYS.— EAPE. 413 
 
 Directors of the same company : It was held, first, that the 
 Board de facto in possession of the franchises of the corpora- 
 tion may maintain an action for any trespass respecting the 
 corporate property ; and that the acts ot such de facto offi- 
 cers cannot he collaterally impeached; the proper way of 
 trying the right or title to the office being by an action in 
 the nature of a quo warranto : held, second, that the defen- 
 dants could not justify such alleged trespasses under color of 
 proceedings had by a Justice of the Peace under the pro- 
 visions of the Eev. Code, chap. 49. (Forcible Entry and 
 Detainer,) as the Justice in such case had no jurisdiction. 
 Atlantic, Tennessee and Ohio Railroad Co. v. Johnston, 70 
 K". 0. R. 348. 
 
 17. A President de facto of a railroad company, when a 
 suit is pending in which his right to the office is to be tried, 
 and just before the decision of such suit, has no right to 
 make a distribution of the funds of the company to such 
 creditors as he may elect to give preference. Walker v. 
 Fleming, 70 N. 0. R. 483. 
 
 18. For the ordinary purposes of the company, and in 
 order to keep the machinery in motion, a de facto president 
 will be recognized as having power to act. Ibid. 
 
 See (Common Carriers passim.) (Custom.) (Public Law, 
 8, 23, 24.) 
 
 RAPE. 
 
 1. The prisoner, a stranger to the prosecutrix, who was 
 a girl of between 13 and 14 years of age, had met her upon 
 her way to a neighbor's, and offered to go home with her, a 
 distauce of less than a mile ; his offer being accepted, he dis- 
 missed some children who had been acting as her guide: held, 
 that the girl's following him out of the road for a short dis- 
 tauce into the woods ; as also her not stopping upon her way 
 home, after the alleged rape had been committed, to tell her 
 aunt of it, (she having passed her aunt's house and seen her) 
 — did not ivarraut a prayer for a charge to the jury that the 
 evidence of the prosecutrix should be disregarded altogether. 
 State v. Marshall, Phil. L. R. 49. 
 
 2 For a conviction of rape, since the passage of the act 
 of 1860-'l, chap. 30, it is sufficient that the fact of penetra- 
 tion be established ; and to establish such fact, it is not re- 
 quired, that the witness should use any particular form of 
 words. State v. Hodges, Phil. L R. 231. 
 
414 EAPE.-RECEIVER -RECEIV'G, &C.-RECOGNIZ. 
 
 3. The opinion of medical experts is admissible as to the 
 age of a child upon whom the crime of "carnally knowing," 
 &c, under the statute, Rev. Code. chap. 34, s. 5, is charged. 
 State v. Smith, Phil. L. R. 302. 
 
 4. An indictment under the statute need not charge that 
 the prisoner ravished the child. Ibid. 
 
 5. An indictment for rape need not charge that the per- 
 son ravished is over ten years of age. State v. Storkey, 63 
 N". 0. R 7. 
 
 6. The least penetration of the person of a female against 
 her will, constitutes rape. State v. Har grave, 65 N. 0. R. 
 466. 
 
 See (Evidence — In criminal Proeediugs and Indictments, 
 23.) 
 
 RECEIVER. 
 
 While property is in the hands of a receiver, no right to it 
 can be acquired by sale under execution ; and it makes no 
 difference that the receiver appointed, decline to act, the 
 property was nevertheless in the custody of the law. Skin- 
 ner v. Maxwell, 68 N. 0. R. 400. 
 
 RECEIVING STOLEN GOODS. 
 
 If a person receive stolen goods, knowing them to be such, 
 nat for the purpose of making them his own, or of deriving 
 profit from them, but simply to aid the thief in carrying 
 them off, he is guilty of the crime of receiving stolen goods* 
 knowing them to have been stolen. State \. Bushing, 6J N. 
 C. R. 29. 
 
 RECOGNIZANCE. 
 
 1. When a defendant in an indictment entered into a re- 
 cognizance for his appearance at a term of the Superior 
 Court, and he appeared at said term and the cause was con- 
 tinued, but he was required to enter into bond for his appear- 
 ance the succeeding term, which he failed to do, and departed 
 without leave of the court : held, that he might be called out 
 
RECOGNIZANCE.— EEOOED. 415 
 
 on a subsequent clay of the term and the failure noted upon 
 the record. Stale v. Smith, 66 N. 0. R. 620. 
 
 2. In such cases it is not regular to enter a judgment 
 nisi. "A recognizance is a debt of record, and the object of 
 a scire facias is to notify the cognizor to show cause where- 
 fore the cognizee should not have execution of the sum thereby 
 acknowledged. No judgment of forfeiture is required before 
 issuing a scire facias. Ibid. - 
 
 3. Where a* State's warrant was issued agaiust several 
 persons, one of whom was not arrested, but went before a 
 Justice of the Peace and entered into a recognizance to ap- 
 pear at a future time, and failed to appear, and the Justice 
 afterwards re-issued said warrant, without any special com- 
 mand endorsed thereon : held, that the person who had en- 
 tered into the recognizance, could not be arrested on said war- 
 rant. That the warrant was functus officio, and that the officer 
 acting under it was a trespasser. State v. Queen, GG N. 0. R. 
 G15. 
 
 4. An agreement by a Solicitor for the State, to discharge 
 a defendant, it he would become a State's witness against a 
 co-defendant, which he did so far as to go before the grand 
 jury and be examined, and then left the court, will not re- 
 lieve such defendant from a forfeited recognizance. A recog- 
 nizance is a matter of record, and can only be discharged by 
 a record, or something of equal solemnity. State v. Moody, 
 69 N. 0. R. 521). 
 
 5. The discharge of a defendant, or the entering a nol. 
 pros, is within the control of court, though in practice, usu- 
 ally left to the discretion of the Solicitor. Ibid. 
 
 RECORD. 
 
 1. When Acts of the Assembly provided that certain 
 orders of the county courts might be made, a majority of the 
 justices being present, the record must show affirmatively a 
 compliance with that condition. Leak v. Commissioners, 64 
 N. 0. R. 132. 
 
 2. Superior Courts will not compel the Clerk of the Supe- 
 rior Court, who has the legal custody of the records of the 
 late County Courts to surrender such records to the Board 
 Commissioners to be altered by said Commissioners. Com- 
 nCrs of Forsyihe County v. Blackburn, 68 N. C. R. 40(5. 
 
 3. Entries on the books of the County Courts in relation 
 
416 RECORD — RECORD ARI AND SUPERSEDEAS. 
 
 to a vote of the people on the question of subscription or no 
 subscription to the stock of a railroad compaDy, and the ac- 
 tion of said court in relation to subscription, and as to the 
 Justices who were present, although not records, are written 
 evidence, which the public and third persons may have an 
 interest to preserve in its original integrity. 1 bid. 
 
 RECORDARI AND SUPERSEDEAS. 
 
 1. The law favors trials upon the merits; therefore, where 
 a judgment by a Justice of the Peace was given against the 
 petitioner iu his absence, and without his knowledge, and 
 he was deprived of an appeal on account of the irregularity 
 of his proceedings therefor ; where, besides, he made an affi- 
 davit setting forth merits, and was not chargeable with un- 
 reasonable delay in applying for such relief-, held, that he 
 was entitled to a recordari. Gritcher v. McCadden, 64 N". 
 C R, 262. 
 
 2. Where a suit before a Justice is for a money demand, 
 it is erroneous for him, after giving a judgment for the amount 
 claimed, to add ''to be paid iu JNorth Carolina bank money 
 at par, of any bank in the State ;" and upon the return of a 
 writ of recordari and the assignment of such error in the 
 Justice's judgment, the Superior Court should not order the 
 case to be placed on the trial docket, but reverse the judg- 
 ment for the plaintiff. Swain v. Smith, 65 N. C. R. 211. 
 
 3. Before an application for a recordari can be enter- 
 tained, petitioner must aver that he has paid, or offered to 
 pay, the Justice's fees. Steadman v. Jones, 65 N. C. R.388. 
 
 4. An order for a recordari should be accompanied with 
 an order for a supersedeas, and suspension of execution. Ibid. 
 
 5. Where the right of a party to a recordari, as a substi- 
 tute for an appeal from a Justice's judgment, depends upon 
 the facts proved or admitted before the Judge of the Supe- 
 rior Court, it is his duty to find and state the facts upon 
 which he proceeds to act, and if, upon an appeal to the Su- 
 preme Court, such facts do not appear to have been fouud 
 and stated, that Court must overrule the decision below, 
 because the Supreme Court cannot try any "issue of fact." 
 Collins v. Gilbert, 65 N. O R. 135. 
 
 6. Where, but for errors alleged, the record would sus- 
 tain the judgment given iu the Court below, it must be sus- 
 tained by the Supreme Court, unless the errors are shown. 
 
EECOEDAEI AND SUPERSEDEAS. 417 
 
 But the case is otherwise when there is nothing in the record 
 to sustain the judgment of the Court below. Ibid. 
 
 7. When the writ of recordari is used as a writ of false 
 judgment, as it may be in this State, upon its return in which 
 the proceedings before the Justice of the Peace are certified, 
 the plaintiff in the writ must assign his errors, and then the 
 proceedings will be the same as in other writs of error. 
 Strain v. Smith, 05 8. 0. B. "211. 
 
 8. Where a Justice's judgment is given for the plaintiff 
 and the defendant brings error, there shall only be a judg- 
 ment to reverse the former judgment, for the writ of recor- 
 dari is only brought to be eased and discharged of that judg- 
 ment. But when the plaintiff brings the writ, the judgment, 
 if erroneous, shall not only be reversed, but the court shall 
 also give such judgment as the court below should have 
 given ; tor his writ is to revive the first cause of action, and 
 what he ought to have recovered by the first suit, wherein 
 the erroneous judgment was given. Ibid. 
 
 9. If a party has merits and desires a new trial in the 
 Superior Court, upon a matter heard before a Justice of 
 the Peace, he must, by a proper application, obtain a writ of 
 recordari as a substitute for an appeal. The writ of recordari 
 and not certiorari is the proper remedy, the Justice's Court 
 not being a court of record. Ledbetter v. Osborne, GO X. C. 
 
 E. 379. 
 
 10. A plaintiff who appealed from the j udgment of a Jus- 
 tice of the Peace for less than $2.3, in his favor, he claiming 
 more, and the Judge having affirmed the judgment on the 
 papers sent up to him, under sec. 539, C. 0. P., is not enti- 
 tled to a recordari to the Justice as the case has already been 
 removed from his court, Cowles v. Haynes, 67 N. C E, 128. 
 
 11. Where a petition to a Judge set forth, that certain 
 judgments were rendered by a Justice of the Peace against 
 the petitioner as executor, while he was absent from the 
 State, and without his knowledge, that the summons was not 
 served upon him, but service was accepted by an Attorney 
 employed to act as counsel in the management of the estate, 
 but with no authority to accept sevrice of legal process, and 
 that said Attorney appeared on the trial, before the Justice, 
 against the petitioners, &c ; held, to be a proper case for a 
 recordari and supersedeas. Caldwell v. BeatUj, 09 X. C E. 
 142 
 
 12. A recordari is a substitute for an appeal, where the 
 party has lost his right to an appeal, otherwise than by his 
 own default. Marsh v. Cohen, 08 N. C. E. 283. 
 
 27 
 
418 EECOEDAEI, &c— EEFEEENCE UNDEE C. 0. P. 
 
 13. Where in an application for recordari, it appeared 
 that A was informed by a Justice of the Peace, that B had 
 obtained before him (the J. P.) a judgment against him, and 
 A at the time notified the J. P. of his intention to appeal,., 
 and in order to stay proceedings pending the appeal, filed in 
 the office of the Clerk of the Superior Court an undertaking, 
 before one whom he supposed to be a deputy of the clerk, 
 who approved the same and issued a supersedeas, and where 
 it further appeared that the judgment was not given against 
 A at the time he was informed by the J. P. it was so given, 
 but not until after he had filed the undertaking : held, that 
 although the clerk, when informed of the act of his deputy, 
 notified the Justice and the defendant that he did not ap- 
 prove the undertaking, and revoked the supersedeas, and 
 though it further appeared, that ten days' notice of the appeal 
 had not been given, as required by sec. 536, of the 0. C. P., 
 A was not in default, and that his Honor below committed 
 no error in granting the recordari. Ibid. 
 
 14. To stay proceedings, pending the review of a decision 
 of the clerk in regard to the sufficiency or insufficiency of an 
 undertaking for an appeal, a supersedeas is the proper mode, 
 and not an injunction. Saulsbury v. Cohen, 68 IS. C. E. 289. 
 
 15. A writ of recordari is sometimes used as a writ of 
 false judgment to bring up a case in order to review an al- 
 leged error in law, and it is sometimes used as a substitute 
 for an appeal, in which case the whole matter is tried de nova 
 in the higher court. Caldwell v. Beatty, 69 N. C. E. 365. 
 
 16. Where the error alleged is a defect of jurisdiction 
 such error may be corrected upon a writ of recordari, used 
 as a writ of false judgment, although the party may have 
 neglected to avail himself of the right of appeal. Ibid. 
 
 See (Practice — In the Supreme Court, 8.) 
 
 REFERENCE UNDER THE C. C. P. 
 
 1. Under the C. C. P., sees. 244 and 245, a compulsory 
 reference cannot be ordered by the court in a suit on a judg- 
 ment confessed by the defendants as executors before the 
 late civil war, where the only matters of defence are pay- 
 ments made by them in Confederate currency during the 
 war, and alleged counterclaims for notes due from the plain- 
 tiffs to them as executors. Such a case does not require 
 " the examination of a long account on either side," nor is. 
 
REFERENCE UNDER THE 0. P. 419 
 
 the " taking of an account necessary for the information of 
 the court" Hall v. Craige, 05 X. 0. R. 51. 
 
 2. Referees appointed by au order of court need not have 
 a formal or written notice of their appointment It is suffi- 
 cient that they are appointed, meet and make an award. 
 Allison v. Bryson, 65 N. 0. R. 44. 
 
 3. A reference may be made, by consent of the parties, 
 to persons who are interested in the subject matter of the 
 suit. Quere, whether it would make any difference if the 
 parties, or either of them, were ignorant of the fact of inter- 
 est in the referees ? / bid. 
 
 4. Referees are not obliged to report the evidence upon 
 which their award is founded. Ibid. (Note — See Post, 10, 
 21, 28.) 
 
 5. An exception to an award that it is contrary to law is 
 too indefinite. In the absence of fraud, or the mistake of 
 law, where they intend to decide according to law and mis- 
 take it, the arbitrators are a law unto themselves. Ibid. 
 
 6. If a suit which involves the taking an account be re- 
 ferred, it is the duty of the referees to state distinctly in 
 their report their conclusions both as to matters of fact and 
 matters of law, so that the Judge may review their findings- 
 both as to the facts and the law, and the Supreme Court 
 may, in case of an appeal, review his decision upon ques- 
 tions of law. Kluttz v. McKenzie,, 65 N. 0- R. 102. 
 
 7. It is error in an order to refer the matters in contro- 
 versy in a suit without the conseut of the parties to the 
 attorney of one of them, it being the same as if the refer- 
 ence were made to the party himself. Eason, v. Saunders, 
 65 K R. 210. 
 
 8. Facts which are found by a referee, and approved by 
 the court, are not the subject of review by this court. II y- 
 man v. Devereux, 65 N. 0. R. 588. 
 
 9. When a reference is made to a Commissioner to state- 
 an account and report to a certain term of a Court, and the- 
 report is made to that term, if exceptions be not filed at the- 
 same term, the report should be confirmed and judgment- 
 given, upon a motion; and, if the motion be not made at that 
 time, it is a matter of discretion with the Court whether to 
 allow exceptions to be filed at a subsequent term. State ex. 
 rel. Cox, Solicitor, v. Peebles, 67 N. C. R. 97. 
 
 10. If the Commissioner fails to file the evidence with his 
 report, the objection can only be taken by exception to the 
 report. Ibid. 
 
 11. A judgment upon the report of a Commissioner, in au 
 
420 REFERENCE UNDER THE 0. C. P. 
 
 action on a guardian bond, is like a decree in a suit in equity, 
 and may be conditional in its form, if the circumstances of 
 the case require it. Ibid. 
 
 12. The provision in section 247, 0. 0. P., that if the re- 
 ferees fail to deliver a report within sixty days from the time 
 the action shall be finally submitted, either party may end 
 the reference, applies only (as the Court are strongly inclined 
 to think) to cases in which the reference is by consent, and 
 not compulsory under sec 245, or at least it does not apply 
 to a reference to take an administration account made by or- 
 der of the Court. Maxwell v. Maxwell, 07 N. C. R. 383. 
 
 13. By "final submissions" is not to be understood the 
 order of reference or ceasing to take testimony, but when the 
 parties have made arguments or decline to do so, or when 
 they have told the referees that the case was submitted. Ibid. 
 
 14. The discretion of a Superior Court Judge to set aside 
 a report of a referee, on the ground of a newly discovered tes- 
 timony, cannot be reviewed in the Supreme Court. Test v. 
 Cooper, 68 N. C. R. 181. 
 
 15. The taking and reporting an account by the Master, 
 or Clerk, to whom the Court has referred it, involves the ex- 
 ercise of the judgment and discretion of such referee, which 
 he cannot delegate to another. And it is no proper exercise 
 of his judgment and discretion wheu he simply adopts an ac- 
 count which has been stated by another, whether the account 
 so adopted has been takeu in the same suit or in some other. 
 Larkins v. Murphy, G8 N. C. R. 381. 
 
 16. When a case is referred without the written consent 
 of the parties as required by the 244th section of the s 0. C. P., 
 and both parties appear before the referee and examine tes- 
 timony, and the report is afterwards made and confirmed in 
 the Superior Court, and a judgment given upon it from which 
 an appeal is taken to the Supreme Court, it is too late to ob- 
 ject in that Court to the order of reference as having been 
 improperly made in the Superior Court. Johnston v. Hay nes, 
 08 N. C R 509. 
 
 17. When an account and the report of a referee thereon 
 is directed to be modified and corrected in this Court, and it 
 is referred to the clerk of this Court to make the necessary 
 corrections, no evidence is admissible before him to show 
 that the account which had been passed upon by this Court 
 was erroneous. In such a case the duties are only clerical, 
 and the clerk is right in confining himself to them. Ibid, 
 516. 
 
EEFEEENCE UNDEE THE 0. C. P. 421 
 
 IS. The examination of a witness before a referee, which. 
 was taken in the presence of the parties to the suit, and 
 signed by the witness who has since died, may be read as 
 evidence on the trial of the suit, in which such examination 
 was taken. Nuttv. Thompson, 69 N. 0. E. 548. 
 
 19. A reference of issues upon sham pleas is erroneous, 
 but if the reference embrace an issue on a good plea which 
 may be referred, it will be sustained as to that while it is re- 
 versed as to others. Flack v. Dawson, 69 N. 0. E. 42. 
 
 20. A reference made by the court to take an account to 
 be used in an action pending before it, is not a reference as 
 can be ended at the election of either party before it, upon 
 the notice prescribed in the Code of Civil Procedure, sec. 
 247. 69 Green v. Green, N. 0. E. 294. 
 
 21. There are three mode of trial provided for by the 
 Code: 1. Trial by jury; 2. Trial by the Court; 3. Trial by 
 referees. If a reference is made by consent, it is a mode of 
 trial, selected by the parties, and is a waiver of the right of 
 trial by a jury. If no exceptions be taken before the re- 
 ferees, and their report go up without exceptions, and either 
 party desire to except, then and there in term time, he must 
 be permitted to do so. And then his Honor must pass upon 
 them, as if they had been taken before the referees. Green 
 v. Castlebury, 70 N. C. E. 20. 
 
 22. Where a report is made under a compulsory refer- 
 ence, and exceptions are filed, and issues made by these ex- 
 ceptions, either party has the right to have the issues tried 
 by a jury ; because, not having waived a trial by jury, as is 
 done when the reference is by consent, the party has a con- 
 stitutional right to a trial by jury. Ibid. 
 
 23. Section 246, C. C. P., construed, and the practice 
 under the same settled and fully explained. Ibid. 
 
 24 In a case of a compulsory reference, either party, may 
 at some stage of the proceedings, to be determined by the 
 court, demand a trial by the jury of the issue arising in the 
 report of the reference. But if the reference has been made 
 by consent, the parties waive their light to have such issues 
 tried by a jury, and cannot demand it, after having by such 
 waiver renounced it. Armfiekl v. Brown, 70 N. C. E. 27. 
 
 25. The Act of 1866-67, chap. 59, sec. 2, is repealed by 
 the Act of 1868-'69, and by chap. 121, Bat. Rev., so that a 
 jury trial upon certain issues cannot under the provisions of 
 that Act be now demauded. Lippard v. Roseman, 70 N. 0. 
 E. 34. 
 
422 EEFEBENCE UNDEE THE 0. 0. P. 
 
 26. Parties are entitled to a jury trial, in all cases when 
 they have not waived their right to demand it, as they have 
 in a reference by consent. Ibid. 
 
 27. An order of court, sending back a report to a com- 
 misioner or referee, is sufficient notice to the party except- 
 ing to such report, of its recommitment. Herring v. Mur- 
 j)hy, 70 K G. E. 164. 
 
 28. A commissioner in applying the scale of depreciation 
 to payments and receipts, applied the same at the date of 
 several payments were made and the receipts given ; held, to 
 "be proper and no ground of exception, in the absence of proof 
 that the party kept on hand the identical money received. 
 Ibid. 
 
 29. A commissioner reports that the evidence upon which 
 he stated the account, ''was the reports ot the defendant as 
 guardian to the court, one voucher for defendant, (which is 
 allowed,) aud defendant's affidavit :" held, that was a suffi- 
 cient statement of the evidence to justify a confirmation of 
 the report. Ibid. 
 
 30. The entries on the record, that certain exceptions 
 w T ere to be " passed upon by the court as of this term, fol- 
 lowed by the judgment of the court are conclusive of the 
 waiver of a jiny trial by the parties and cannot be impeached. 
 Maxwell v. Maxwell, 70 X. 0. E. 267. 
 
 31. Exceptions to the report of a referee, that he adopted 
 a former settlement as the foundation of his report ; that he 
 stated no evidence upon which he found the facts reported; 
 that he filed no vouchers nor receipts, nor did he refer to 
 any authorizing the disbursements reported ; and that he did 
 not state when certain judgments were obtained, are all well 
 taken, and the report was properly set aside. Wilson v. 
 Abrams, 70 N. C E. 324. 
 
 32. When the Judge below does not fiucl the facts upon 
 wdiich he overruled the defendant's exceptions, and the de- 
 fendant not having requested him to find such facts, this 
 court will remand the case that the facts may be found either 
 by his Honor, or in a case under the Code. Froneberger v. 
 Lewis, 70 N. 0. E. 456. 
 
 See (Arbitration and Award — Construction of awards and 
 remedy thereon, 3, 4, 5.) 
 
REGISTRATION— RELEASE. 423 
 
 REGISTRATION. 
 
 1. Between 1860 and 1865, there was no period when a 
 deed made in 1860 could not have been registered. Isler v. 
 Foy, 66 N. C. R. 547. 
 
 2. Where, in an action of ejectment, the plaintiff's lessor 
 claimed title under a deed which was in the possession of the 
 defendant, who asserted a right to it by virtue of an endorse- 
 ment upon it : held, that the Court had the power to order 
 the production of the deed, for inspection, or other legitimate 
 purposes, but not to order the registration of the deed, before 
 the question of the right of the defendant to some enquiry by 
 virtue of endorsement was tried and decided against him. 
 Linker v. Benson, 67 K 0. R. 150. 
 
 3. It seems, that a Probate Judge has no means of know- 
 ing whether a deed presented for registration is rightfully in 
 the possession of one offering it for probate ; and a Judge of 
 a court of law has no power to cancel a registration once 
 made, but must give it its legal effect. Ibid. 
 
 See (Indians, 2, 3.) 
 
 RELEASE. 
 
 1. When receipts are given for specific things, they do 
 not operate as a release of any right, though under seal, but 
 must be confined to the subjects of such receipts. Morrison 
 v. White, 67 N. 0. R. 253. 
 
 2. A, the holder of a promissory note given to H, and 
 indorsed by B and others, gave B a receipt, not under seal, 
 for $23.90, and stating therein, that it was for "his (B's) 
 part of a note I hold on H :" held, that such receipt was no 
 release to B from his liability to pay the balance of the note 
 nor did it operate to release any other endorser from such 
 liability. Carrier v. Jones, et al., 68 N. C. R. 127. 
 
 3. It is error in the Judge below not to instruct the jury 
 that a receipt, produced as evidence and relied upon by the 
 defendat to whom it was given, to operate as a discharge of 
 him from all further liability, was not such a release, nor did 
 it free the defendant from the payment of whatever balance 
 ot the debt remained unpaid. Ibid, 130. 
 
 See (Covenant, 1, 2, 3, 4) 
 
424 EELIGIOUS, &c— EEMOVAL, &o — BENT. 
 
 RELIGIOUS CONGREGATION. 
 See (Indictment — When an indictment will lie or not.) 
 
 REMOVAL OF CAUSES TO THE FED- 
 ERAL COURTS. 
 
 1. "Where a suit was brought prior to the adoption of the 
 0. C. P., by a citizen of another State in the Court of Equity 
 of one of the counties of this State against a citizen of this 
 State, and at a term of the Superior Court of the county af- 
 ter the adoption of the 0. C. P., a motion was made to refer 
 the issues in the cause to a referee, which was ordered, and 
 the defendant appealed to the Supreme Court, where the or- 
 der was held to be erroneous, and issues were directed to be 
 made up to be tried in the Court below, and the cause was 
 retained in the Supreme Court until the issues should be 
 tried: it was held, that there was uot a final hearing on trial 
 of the suit so as to prevent its being removed at the instance 
 and upon the affidavit of the plaintiff to the Circuit Court of 
 the United States for the District of North Carolina, under 
 the act of Congress of March 2d, 1867, which provides that a, 
 non-resident party in a State Court shall be entitled to re- 
 move it, on making proper application, " at any time before 
 the final hearing or trial of the suit." Douglas v. Caldwell 
 65 N. C. R. 248. 
 
 2. Where, in an action pending in a Court of this State 
 there were several plaintiffs, one of whom was a citizen of 
 North Carolina and the others were non-residents of the 
 State, the defendant being also a non-resident : held, not to be 
 a proper case for removal to the Circuit Court of the United 
 States, upon petition, under the act of Congress of March 2, 
 1867, there being no controversy between a citizen of this 
 State and a citizen of another State. Bryant v. Scott, 67 N. 
 C. E. 391. 
 
 RENT. 
 
 1. The doctrine that rent follows the reversion applies in 
 favor of devisees of the reversion, as well where it is directed 
 
KENT.— EEPLEVIN. 425 
 
 to be sold and the proceeds divided amongst them, as where 
 it is given specifically. Lewis v. WilMns, Phil. Eq. E. 303. 
 
 2. Where there is a lease for years, aud before the end of 
 the term, the interest of the lessor in the land is conveyed 
 to a third person, or is sold under execution and purchased 
 by such person, the rent reserved, which is not due at the 
 time of the conveyance, or sale and sheriff's deed, passes 
 with the reversion to the purchaser, and cannot, therefore, 
 be subjected afterwards to the debts of the lessor. Korne- 
 gay v. Collier, 65 N. 0. E. 69. 
 
 3. The doctrine of the different kinds of rents in England, 
 and of rent in this State discussed and explained. Jbicl. 
 
 4. Where A made a lease for a term of years, and during 
 the existence thereof he conveys the land by deed to B, the 
 latter can recover for the rent which had accrued after the 
 title to the land passed to him. Ballard v. Thomason, 65 
 N. 0. E. 436. 
 
 See (Mortgage, 5, 6.) (Vendor and Purchaser, 4, 5.) 
 
 REPLEVIN. 
 
 1. A judgment in an action of replevin, brought under 
 Eev. Code, ch. 98, for the penalty of the bond given by the 
 defendant according to the provisions of sec 4, without a pre- 
 vious judgment against the defendant, as at common law, is 
 erroneous. Scott v. Elliott, 63 K 0. E. 215. 
 
 2. In such case the judgment should be, that the plaintiff 
 recover the tiling, and in case it cannot be had, then the value 
 assessed; and also damages for the caption and detention, with 
 his costs; and, superadded thereto, a judgment against the 
 defendant and his sureties, for the penalty of the bond, to be 
 discharged by performing the former judgment. Ibid. 
 
 3. The value should be assessed as at the time of the 
 trial, and not at that of the caption. Ibid. 
 
 4. It is erroneous to assume that six yer cent, is the 
 proper measure of damages in such case ; it might be more, 
 or less. Ibid. 
 
 5. Semble, that the judgment in such cases should not 
 include a sheriff who has been fixed as special bail of the de- 
 fendant, but that he is to be reached by sci fa., and entitled 
 to surrender his principal in discharge of his liability. Ibid. 
 
 6. The provision in the act, that replevin may be main- 
 tained against persons in possession, wherever trover or de~ 
 
426 EEPLEVIN— EETAILEES, &c— EIOT. 
 
 tinue ivill lie, is not universal, but sub modo only, reference 
 being bad to tbe different natures of tbe acts spoken of. Ibid. 
 
 7. Where tbe defendant in a writ of replevin was not in 
 possession of tbe tbe tbing sued for at tbe time tbe writ was 
 issued, and refused to give bond, no recovery can be bad 
 against bim. Myers v. Oredle, 63 N". 0. E. 504. 
 
 8. Tbird persons, wbo after tbe issuing of a writ of re- 
 plevin come forward and give tbe bond and receive possession 
 of tbe tbing sued for, from the plaintiff, are not liable to a 
 recovery in such action. Ibid. 
 
 See (Trover, 1.) 
 
 RETAILERS OF SPIRITUOS LIQUOSR. 
 
 1. In an indictment, under the act of 1868-'9, chap. 213, 
 for selling spirituous liquors within three miles of the Wes- 
 tern North Carolina Eailroad, during the period of its con- 
 struction, " unless licensed by tbe State," it is a complete de- 
 fence to show a license granted by the county commissioners 
 of the county in which the selling takes place, as such com- 
 missioners are the agents of the State for that purpose. 
 State v. Dobson, 65 N. 0. R. 346. 
 
 2. Two persons may be charged in the same bill of in- 
 dictment with retailing contrary to the statute, and one of 
 them may be convicted and the other acquitted. State v. 
 Simmons, 66 N. 0. E. 622. 
 
 3. When one contracts to sell a gallon of spirituous 
 liquor, and a portion, viz : less than a quart, is delivered at 
 tbe time of the contract of sale, and afterwards the money is 
 paid and three-quarters delivered, and subsequently the 
 remainder of the gallon ; held, that this is not a violation of 
 tbe statute, unless it was an artifice to evade the law, and 
 such intent was a question of fact, which ought to have been 
 submitted to the jury. Ibid. 
 
 RIOT. 
 
 It is not necessary to constitute a riot, that the facts 
 charged should amount to a distinct and substantive indicta- 
 ble offence ; it is sufficient, if such facts shall constitute an 
 attempt to commit an act of violence, which, if completed, 
 would be an indictable offence. State v. York, 70 N. 0. E. 66. 
 
ROAD. 427 
 
 ROAD. 
 
 1. It is not competent for a Superior Court to grant an 
 injunction against an order by county commissioners within 
 the sphere of their general duties, laying out a public road; 
 nor can such court, otherwise than under an appeal from 
 such order, rescind it. McArtliur v. McJSacMn, 64 N. C. R. 
 454. 
 
 2. If a road be dedicated by the owner of the soil to the 
 use of the public, and be used by them under such dedica- 
 tion, it becomes a public road immediately ; it is only for the 
 lack of other evidence of dedication, that the lapse of twenty 
 years is resorted to. Crump v. Mims, 64 1ST. C. R. 767. 
 
 3. Where the dedication of a public road is once estab- 
 lished, either by the lapse of time or otherwise, such obstruc- 
 tion or disuse as will afterwards defeat the dedication, must 
 continue for twenty years. Ibid. 
 
 4. A public road over a ford is not done away with by 
 the building at the same passage, a bridge which affords the 
 public a more acceptable transit, provided that the ford is 
 used when the bridge is out of repair, or down; and this, 
 even where the owner of the adjacent lands erects a fence 
 across the approaches having a slip gap in it to the road, 
 which is used by the public whenever they have occasion to 
 pass. Ibid. 
 
 5. The raising of the water at the ford by a clam of a 
 navigation company chartered by the State, so as to render 
 it unfordable, only suspends the use of the franchise, and 
 upon the destruction of the dam enjoyment of the franchise 
 is restored. Ibid. 
 
 6. When the proprietor of lands, who, for the purpose of 
 draining the same, shall construct a ditch, drain or canal 
 across a public road, it shall be the duty of the said proprie- 
 tor to build a bridge over said ditch, canal, &c, and keep 
 the same in repair. Rev. Code, chap. 101, sec. 24. Nobles 
 v. Langly, G6 N. C. R. 287. 
 
 7. Such duty is not incumbent upon the overseer of a 
 public road; therefore when a civil action was brought 
 against such overseer to recover damages alleged to have 
 been incurred in consequence of his negligently permitting a 
 bridge over a canal to become unsafe and in bad condition ; 
 held, that it was competent for him to show that the canal 
 had been dug across the public road by the proprietor of the 
 land adjacent thereto, and for the purpose of draining the 
 same, and that a bridge had been built over the canal by the 
 
428 ROAD.— ROBBERY. 
 
 proprietor of the land, and had been kept up by him for sev- 
 eral years. Ibid. 
 
 8 It is a settled principle that when a thing is done by 
 a tribunal, having jurisdiction of the subject matter, its ac- 
 tion cannot be impeached collaterally, for any irregularity or 
 error in the proceeding, and must be taken as valid de facto, 
 if not, dejure, until it be set aside or reversed by some direct 
 proceeding for that purpose : therefore, when a road laid off 
 by commissioners under order of township board of trustees,, 
 and an overseer was appointed over it, it ivas held, on an in- 
 indictment for obstructing it, to be no defence, that no notice 
 had been given to some of the persons, over whose land it 
 passed. State v. Davis, 68 K 0. R. 297. 
 
 9. Section hands employed on our Railroads at regular 
 wages, are not thereby excused from working on the public 
 highways of the country. State v. Cauble, 70 N. 0. R. 62. 
 
 See (Forcible Trespass, 5, 6) 
 
 ROBBERY. 
 
 1. An ordinary rail road is not a public highway within 
 the meaning of the Revised Code, ch. 34, sec. 2, punishing 
 with death robbery in or near a public highway. State v. 
 Johnson, Phil. L. R. 140. 
 
 2. The distinction between robbery and forcible trespass 
 is, that in the, former a felonious intention exists, and in the 
 latter it does not. State v. Sowls, Phil. L. R. 151. 
 
 3. The question of felonious intention, is one for the jury, 
 acting under such instructions from the court as each case- 
 may require. Ibid. 
 
 4. If, in March, 1865, one, who bona fide thought he was 
 acting under the orders of a Captain of the Home Guard, 
 went to a dwelling-house, and forcibly possessed himself of a 
 sword, not for the purpose of appropriating it, but solely to 
 disarm the prosecutor : held, that it would not have been 
 robbery. Ibid. 
 
 5. By Pearson, C J. Forcible trespass is the taking of 
 the personal property of another by force; robbery, the fraud- 
 ulent taking of the personal property of another by force. Ibid. 
 
 6. A prominent feature in that Felonious intent which 
 distinguishes robbery or stealing from forcible trespass, is, an 
 intent to evade the laiv, as, ex. gr. by concealing from the ow- 
 ner of the thing taken, the person ivho took it. i. e., the per- 
 
BOBBERY.— ROSIK— EULES OF PRACTICE. 429 
 
 sou who might be sued, or, might he indicted; such are the 
 familiar instances of taking goods, &c, by persons in masks, 
 or, or ivith faces Wacked, or, on the highway. State v. Deal, 
 64 NT. C. R. 270. 
 
 7. Artifice in getting possession of the thing, is to be distin- 
 guished from artifice in concealing the fact that the taker has 
 it in his possession; It is the latter that shows a felonious in- 
 tent. Ibid. 
 
 8. Cases in which persons concealed " shawls," &c, which 
 they had previously found, are excepted from the general 
 rule, because of the temptation to which they were subject by 
 circumstances rarely occurring. Ibid. 
 
 9. When the maker of a note having complained of the 
 manner in which he had been treated in the transaction in 
 which he had given it, went to the holder, and after propo- 
 sing to pay it in a certain way, which was refused, asked to 
 see it, upon one pretext or another, and upon having it deliv- 
 ered to him by the holder, kept possession of it, saying, ''you 
 wont get it again ;" and upon a struggle ensuing, snatched 
 up an axe, retreated to his horse, and then rode off, calling 
 out, " Tom (the holder's son, and a surety, to the note) sent 
 me word to get this note as I could," held, to be no case of 
 either robbery or larceny. Ibid. 
 
 ROSIN- 
 
 The penalty for selling rosin in Wilraiugton without having 
 it weighed, given by act of 19th March 1869, is not incurred 
 where the rosin when sold was in transitu from Wilmington 
 to New York, although the parties to the sale were both at 
 the time in Wilmington. Atkinson v. Williams, 63 N. C. R. 
 592. 
 
 RULES OF PRACTICE. 
 
 ADOPTED AT JUNE TERM, 1868. 
 
 1. Appeals will be docketed for their proper districts in 
 the order in which the papers are filed with the clerk. 
 
 2. The clerk will docket no appeal in a civil action, unless 
 it appears that the appellant has filed in the court below an 
 undertaking payable to the appellee, with sufficient surety, 
 
430 RULES OF PRACTICE— JUKE TERM, 1869. 
 
 and in a sufficient sum, for the payment of all costs which 
 may be adjudged against him in the court; or has made a 
 deposit in lieu of such undertaking ; or unless, by leave of 
 this court here, he shall file such an undertaking, or make 
 such deposit with the clerk here. This rule shall apply, 
 notwithstanding an appeal bond shall have been waived by 
 the appellee. 
 
 3. The preceding rule shall not apply: 1st, If the Judge 
 shall have allowed the appellant to appeal as a pauper, or : 
 2nd, where the State is the appellant in its own iuterest, or> 
 3rd, where an officer of the State is the appellant, in his ca- 
 pacity as such, and the interest of the State alone is con- 
 cerned. 
 
 4. Appeals from a county in which a court shall be held 
 during a term of this court, il filed before the expiration of 
 the time assigned to the district, will be called during that 
 week ; if not filed at that time, they will be called at the end 
 of the docket. 
 
 5. The Judicial Districts shall be arranged and assigned 
 in the following order: 
 
 1st week, First and Second Districts. 
 2nd week, Fourth and Fifth Districts. 
 3rd week, Third and Seventh Districts. 
 4th week, Eigth and Ninth Districts. 
 5th week, Tenth and Eleventh Districts. 
 6th week, Twelfth and Sixth Districts. 
 
 6. The cases from each district will be called in their 
 proper order ; if either party is not ready the case may be 
 put to the end of the district, by consent or for cause shown, 
 and be called in that place ; otherwise the first call is per- 
 emptory. In like manner, by consent or for cause, a case 
 may be put to the end of the docket, or continued. If no 
 counsel appear for either party at the first call, the case will 
 be put to the end of the district, and if none appear at the 
 second call, it will be continued. 
 
 7. Oases not prosecuted for two terms, will be dismissed 
 at the costs of the appellant, unless continued for cause, with 
 liberty, however, to either party to move at the next term 
 to re-instate it ; or afterwards, upon sufficient cause. 
 
 8. The appellant is entitled to open and conclude the 
 argument. 
 
 9. When an appeal shall be taken after the commence- 
 ment of a term of this Court, the judgment and teste of the 
 execution shall have effect from the time of the filing of the 
 appeal. 
 
EULES OF PEACTICE— JUNE TEEM, 18G0. 431 
 
 10. The clerk of this Court will keep a, judgment docket, 
 with an alphabetical index of the names of the defendants. 
 On this docket he will enter a brief memorandum of every 
 final judgment of this Court affecting the right to real prop- 
 erty, and of every judgment requiring, in whole or in part, 
 the payment of money ; stating the names of the parties, the 
 term of the judgment, its number on the docket of the term, 
 and if for the payment of money, the amount of the judg- 
 ment ; and when it shall appear from the return on an exe- 
 cution or from an order for an entry of satisfaction by this 
 Court that the judgment has been satisfied in whole or in part, 
 the clerk, at the request of any person interested in such en- 
 try, and on payment of the lawful fee, shall make a memoran- 
 dum of such satisfaction, whether in whole or in part, and 
 refer briefly to the evidence of it. 
 
 11. Executions from this Court may be directed to the 
 proper officers of any counties in' the State ; the manner of 
 their teste is prescribed in rule 9 preceding; at the request 
 of the party in whose favor execution is, it may be returna- 
 ble, on any specified day after the commencement of the 
 term of this Court next ensuing its teste. In the absence of 
 such request executions shall be made returnable on the first 
 day of the term next ensuing their teste; and, on motion, 
 for special cause, execution may be taken out during the 
 term. 
 
 12. The court will not regard any agreements alleged be- 
 tween Attorneys or counsel, unless it be admitted, or shall be 
 in writing and filed in this court. 
 
 13. Memoranda for pleadings, will not be received in this 
 court as pleadings, even by consent of counsel, but will be 
 disregarded as frivolous or impertinent. 
 
 14. On motion of either party, or, in a gross cause of its 
 own motion, the court will refer it to the clerk, or to some 
 member of the bar, to report whether pleadings in a cause 
 are scandalous and impertinent ; and if they be found so, the 
 court will order the scandal or impertinence to be striken out 
 at the cost of the party. 
 
 15. A motion to dismiss an appeal for want of notice of 
 appeal, can only be made at, or before the calling of the case. 
 On the hearing of such motion, the notice must be shown, or 
 be shown to have been waived. Notice will not be presumed 
 merely because the appeal appears to have been taken during 
 a term of the court. 
 
 16 Any party, within two terms after a judgment of this 
 court, may file application to have the cause reheard upon 
 
432 BULES, &c— JUNE TEEM, 18G9 AND 1871. 
 
 any matter of law. To each petition shall be attached a cer- 
 tificate, signed by two counselors of this court, who did not 
 appear in the cause at its first hearing, stating their opinion 
 that the judgment was erroneous. It must also appear, that 
 the judgment has been performed, or that its performance 
 has been properly secured ; or some sufficient cause must be 
 shown for dispensing with these conditions. Such petition 
 must also assign the errors complained of. 
 
 17. Appeals from judgments rendered, one or more days 
 before the commencement of a term of this court, must be 
 filed within the first eight days of the term, or before the 
 calling of the district to which the case belongs, otherwise 
 they will be continued until the next term. 
 
 18. All judgments recovered during any term of the Su- 
 perior Court, which shall be docketed during the term, shall 
 be held, and deemed to be docketed in the first day of the 
 term. 
 
 19. If any plaintiff shall have docketed a judgment and 
 failed to sue out execution against the lands of the defen- 
 dant, any other plaintiff who has docketed a judgment, and 
 shall take out execution, may give notice of his execution to 
 creditors having prior docketed judgments, which shall be 
 served at least twenty days before the clay of sale, and any 
 creditor so notified, who shall fail to sue out execution, and 
 put it into the hands of the sheriff before the day of sale, shall 
 lose his lien on the lands sold : provided, that this rule shall 
 not apply to any creditor who cannot take out execution. 
 
 20. In all cases where the land is sold under execution, 
 in due course of law, the purchaser shall be deemed to have 
 acquired, by power of the sheriff's deed, all of the estate of 
 the defendant in the execution, and all of the rights in re- 
 spect to the land conveyed, of the several creditors by dock- 
 eted judgments, who either have issued executions, or who, 
 having been notified, shall have failed to issue executions. 
 
 21. Writs of execution issued from a Superior Court shall 
 not be tested of any term; they shall be dated the day of their 
 issue, and shall state where the judgment was docketed in 
 the county from the court of which the execution issues. 
 
 ADOPTED AT JUNE TERM, 1871. 
 
 1. Clerks shall not make out transcripts of judgment, to 
 be docketed in another county, until at the expiration of the 
 term, at which such judgments are rendered. All judgments 
 rendered in any county at the same term and sent to another 
 
EULES OF PEACTIOE— JUNE TERM, 1871. 433 
 
 -county to be docketed, shall be equal in respect to lieu : pro- 
 vided they be docketed iu reasonable time, say ten days af- 
 ter the end of the term. Adopted January Term, 1871. 
 Johnson v. S dbtrry, Go X. C. R 5. 
 
 2. All judgments rendered by a Justice of the Peace, 
 upon writs of summons, returnable on the same day, shall, 
 when docketed, stand on the same footing in respect to lien; 
 provided such judgments be docketed within reasonable time, 
 say ten days, after their rendition. Adopted January Term, 
 1871. Johnson v. Sedbury, supra. 
 
 3. During the term at which replication is filed, — as soon 
 thereafter as may be, the attorney of plaintiff will draw up 
 in writing, such issues arisiug upon tiie pleadings, as he 
 deems material to be tried, and submit the statement to 
 the attorney of the defendant, and it he concurs, the state- 
 ment signed by the attorneys will be filed with the clerk. 
 Otherwise the defendant's attorney will make a like state- 
 ment, and the two will be handed to the Judge, who will 
 " settle the issue," and file them with the clerk, to stand for 
 trial at the next term. 
 
 4 Issues shall be framed in concise and distinct terms, 
 .and prolixity and confusion shall be avoided, by not having 
 too many issues. 
 
 5. Before the argument of an appeal, if the court consid- 
 ers the trial of one or more other issues, necessary for the 
 decision of the case upon the merits, additional issues will 
 be made up, under the direction of the court, and be sent to 
 the Superior Court for trial, and the case be retained. 
 
 G. Many records are brought before this court, in which 
 the proceedings and papers are mingled in a confused way, 
 without any regard to the order of time, without paging, or 
 marginal reference, by which a knowledge of the subject 
 matter may be facilitated. Counsel in arguing causes are 
 thus embarrassed and delayed in finding the matter they are 
 seeking for, and the court is put to much unnecessary labor, 
 therefore we have seen fit to make the following order : 
 
 1st. In every record of an actiou brought to this court, the 
 proceedings snail be set forth in the order of time in which 
 they occur, and the several processes, orders, &c, shall be 
 arranged to follow each other in such order when possible. 
 
 2nd. The pages of the record shall be numbered, and there 
 shall be written on the margin of each, a brief statement of 
 the subject matter, opposite to such subject matter. 
 
 3d. On some paper attached to the record, there shall be 
 28 
 
7<? 
 
 434 EULES, &c— JUNE, 1871.— 1872.— JAN'Y, 187 
 
 an index to the record, in the following, or some equivalent 
 form : 
 
 Summons — date, ----- page, 1. 
 
 Complaint — first cause of action, - "2. 
 
 " — second cause of action, - " 3. 
 
 Affidavit for attachment, &c, - - ''4. 
 
 4th. If any cause shall be brought on for argument,, 
 and the above rules shall not have been complied with, the 
 case shall be put to the end of the district, or of the docket, 
 or continued as may be proper ; and it will be referred to the 
 clerk of this court, or to some other person, to put the record 
 in the prescribed condition, for which an allowance of five 
 dollars shall be made to him, in each case, to be paid by the 
 appellant, and execution may immediately issue therefor. 
 
 APPLICANTS FOB, LICENSE — ADOPTED AT JUNE TERM, 1872. 
 
 Applicants for license are expected to have read : for first 
 course, Blackstone's Commentaries, (2nd. book diligently,) 
 Coke or Cruise's, Fearne, Saunders on uses, aud some work 
 on Executors aud Administrators ; second course, 3d. Black- 
 stone's Commentaries, Chitty & Stephen on Pleadings,. 
 Adams' Equity, and the Code of Civil Procedure. 
 
 ADOPTED AT JANUARY TERM, 1873. 
 
 1st. The counsel for the appellant shall have the right to< 
 address the court for not over two hours ; which shall include 
 his opening argument, and reply. The time may de divided 
 between them at his discretion. 
 
 2nd. The counsel for the appellee shall be allowed not over 
 one hour. 
 
 3rd. The time occupied in reading so much of the record 
 as may be necessary shall not be counted under the above 
 rules. 
 
 4th. The time for argument allowed above may be ex- 
 tended by the Court in proper cases : provided, the extension 
 be allowed before the argument begins. 
 
 5th. Any number of counsel will be heard on either side 
 within the limit of time above described, but it is required 
 that where several counsel speak each shall coufine himself 
 to a distinct part or parts of the argument, so as to avoid 
 tedious repetition. 
 
 6th. Every appellant, at the time of settling the case, or 
 if there be no case within ten days after the appeal, shall 
 
KULES, &c— JANUAKY, 1873.— JUNE, 1873. 435 
 
 file in the clerk's office his exceptions to the judgment or 
 proceedings briefly stated and numbered. And in civil (as 
 distinct from criminal) actions no other exceptions than those 
 so filed and made part of the record will be considered in this 
 Court. 
 
 7th. ~No case will be heard until there shall be put in the 
 margin of the record brief references to such parts of the 
 text as it is necessary to consider in a decision of the case. 
 
 8th. The costs of copies of unnecessary and irrelevant 
 testimony or of other irrelevant matter, not needed to ex- 
 plain the exceptions, shall in all cases be charged to the ap- 
 pellant, unless it appears expressly that they were sent up 
 by the appellee, in which case the costs shall be taxed on 
 him. 
 
 9th. In every case the appellant, before the hearing, shall 
 file with the clerk one or more written or printed briefs, in 
 which shall be set forth the exceptions taken below. Under 
 each shall be briefly stated so much of the pleadings, case 
 agreed, or other finding of facts as will make it intelligible. 
 Also if several acts of Assembly are relied on, a citation of 
 them by date and chapter ; also the authorities in law prin- 
 cipally relied on. This, however, shall not forbid the citation, 
 of others on the oral argument. If a statement of the record 
 or any part of it be necessary to an understanding of the 
 case it shall be made briefly, and the page of the record con- 
 taining it refered to. 
 
 10th. If the above brief be printed, eight copies shall be 
 delivered to the clerk, viz : one for each of the Justices, one 
 for the Clerk to file with the record, one for the Keporter,, 
 and one for the opposite couusel. 
 
 11th. Whenever printed briefs shall be filed, and the mat- 
 ter in controversy equals or exceeds $300, and the costs of 
 such briefs shall be taxed in the costs in favor of the party 
 filing them, if he be successful, at the rate of five cents for 
 each printed page of the usual size of the reports of this 
 Court, 
 
 12th. The appellee may, in like manner, file such briefs and 
 shall, under like circumstances, be entitled to have the costs 
 thereof taxed for him. 
 
 ADOrTED AT JUNE TEEM, 1873. 
 
 The Supreme Court, by virtue of its power to exercise a 
 general supervision and control of the inferior courts, makes 
 the following rules : 
 
436 RULES, &c— JUNE TERM, 1873.— SALES— I. 
 
 1. Every clerk of a Superior Court, aud every commis- 
 sioner appointed by such court, who, by virtue or color of auy 
 order, judgment or decree of the court in any action pending 
 in it, has received or shall receive auy money, or security tor 
 money to be kept or invested for the benefit of any party to 
 such action, or of auy other person, shall, at the term of such 
 court, held on, or next after the first day of January in each 
 year, report to the Judge a statement of said fund, setting 
 forth the title and number of the action, aud the term of the 
 court, at which the order or orders, under which the officer 
 professes to act, was made ; the amount and character of the 
 investment, and the security for the same, and his opinion as 
 to the sufficiency of the security. In every report, after the 
 first, he shall set forth any change made iu the amount or 
 character of the investment since the last report, and every 
 payment made to auy person entitled thereto. 
 
 2. The reports above required, shall be handed by the 
 Clerk of the Superior Court to the Register of Deeds, and 
 acknowledged or proved by said clerk, and said report shall 
 be registered at the cost of the fund. The originals shall be 
 returned, after registration, to the Clerk of the Superior 
 Court, and tiled among the papers iu the cause. 
 
 3. The above rules shall apply to the clerks of the Supreme 
 Court and to auy commissioner appointed by it to receive 
 and invest funds. His report shall be registered in the couuty 
 from which the appeal was taken in the cause iu which the 
 order is made. 
 
 4. A breach of the above rules shall be punishable as a 
 contempt of the court to which the report is required to be 
 made. 
 
 SALES. 
 
 I. Judicial sales. | II. Sale of slaves. 
 
 I. JUDICIAL SALES. 
 
 1. A sale of land under a petition in the name of an in- 
 fant having been confirmed, the court ordered the master 
 to collect the note when due, and upon payment, to make 
 title ; at another term, the court ordered the master to pay 
 the note over to the infant's guardian ; this was done, and the 
 master made title to the purchaser; on a petition by the in- 
 fant after coming of age, praying that the laud might still 
 
SALES— I. 437 
 
 be held subject to tbe payment of the purchase money : held, 
 that the deed by the master was irregular and invalid, and 
 that the petitioner was entitled to the relief which he desired. 
 Singletary v. Whitaker, Phil. Eq. E. 77. 
 
 2. Any court which orders a judicial sale, has the power 
 to make a decree for the money after a ten days' notice. 
 Cotton, ex parte, Phil. Eq. E. 79. 
 
 3. The statutory provision to that effect (Code, ch. 41, 
 sec. 129,) is constitutional, and as regards courts of equity, 
 merely substitutes notice and execution for the original power 
 of proceeding by attachment. 1 bid. 
 
 4. Where the note given at a sale was given to a former 
 clerk and master : held, that a decree in the name of the 
 present clerk and master was valid. Ibid. 
 
 5. A suit upon a note made to a former clerk and master 
 by his name and office, need not be brought iu his name. It 
 were more safe to bring it in the name of the State. Ibid. 
 
 0. Where a commissioner, appointed by a court of equity 
 to sell land " for cash," (in conformity with a representation 
 that it would be best to sell for " ready money,") received in 
 payment Confederate treasury notes, the sale was set aside. 
 McNeill v. Shaw, Phil. Eq. E. 91. 
 
 7. One who purchases land at a sale by a clerk and mas- 
 ter, made under the petition by the representatives of a per- 
 son bound by a parol agreement to hold in trust for another, 
 cannot, before payment of the purchase money, or execution 
 of title, claim to be either a purchaser for valuable considera- 
 tion, or a purchaser without notice. Colin v. Chapman, 
 Phil. Eq. E, 92 
 
 8. Where all the persons who have an interest in the 
 land, whether vested, contingent or executory, are in esse, 
 and are before the court, the court may make an order of 
 sale. Houston v. Houston, Phil Eq. E. 95. 
 
 9. Where any member of a class to which an executory 
 devise is limited, are in esse, a court of equity in North Caro- 
 lina will, upon a proper case being made, order a sale of the 
 land devised : otherwise, where no such members are in esse. 
 Dodcl, ex parte, Phil. Eq. P. 97. 
 
 10. Where land had been conveyed by a Clerk and Mas- 
 ter under an order of Court of Equity, in pursuance of a sale 
 theretofore made for partition upon an application by tenants 
 in common, and the purchaser had reconveyed the land to an- 
 other: held, that the tenants in common could not impeach 
 the conveyance by the Clerk and Master (for being made 
 without a payment of the purchase money) — by the medium 
 
438 SALES— I. 
 
 of an action of ejectment ; and that their remedy was in equity. 
 Beard v. Ball, 63 N". 0. E. 39. • 
 
 11. Although a court will set aside a sale made under its 
 order, upon its being reported, or otherwise appearing, that 
 the highest bid is inadequate ; yet, it is not according to the 
 practice in such cases, to accept a higher hid tendered by an- 
 other party since the sale. Wood v. Parker, 63 N. 0. E. 379 
 
 12. The proper order is, to re-open the biddings. Hid. 
 
 13. Whenever the Clerk of a Court is appointed to make 
 sales, &c, it is to be taken that he is appointed in his official 
 capacity, unless the order of appointment expressly negatives 
 the idea ; and for default under such appointment the clerk 
 and his sureties are liable upon his official bond. McNeill v. 
 Morrison, G3 K C E. 508. 
 
 14. A civil action to recover the amount of a bond given 
 for the purchase of a tract of laud sold by the Clerk and Mas- 
 ter under an order of the late Court of Equity, will not be 
 sustained, because the Superior Court has, under the present 
 system, succeeded to the jurisdiction of the Court of Equity 
 and has plenary power, by an order iu the cause, to compel 
 the purchaser to pay such a sum as the Court may, under the 
 oircumstauces, deem right and proper. Council v. Bivers, 
 €5 K C. E. 54. 
 
 15. The objection that another action cannot be sustain- 
 ed, because the Court can give the desired relief by orders in 
 ii cause still pending, though not taken in the Superior Court 
 by demurrer or otherwise, may be taken ore tenus in the 
 Supreme Court, or the Court may take it mero motu to pre- 
 vent multiplicity of suits and the accumulation of costs, but 
 in such case the action will be dismissed without costs. Ibid. 
 
 1G. Where the laud of an infant was sold for partition in 
 185G, under a decree of the Court of Equity, and the Court 
 decreed "that the Master proceed to collect the purchase 
 money, tax the costs incurred, and pay over the residue to 
 the parties entitled, and upon the payment of the purchase 
 money the Master execute title to the purchaser:" held, that 
 the payment of the principal part of the purchase money, and 
 a note given to the guardian of the infant for the residue, was 
 not a compliance' with the decree of the Court. Walke v. 
 Moody, G5 N. C. E. 599. 
 
 17. Iu such a case the plaintiff has a lien upon the land 
 for the payment of the residue of the purchase money, and 
 is entitled to a decree for a resale of the land for the payment 
 thereof. Ibid. 
 
 18. Where a petition for the sale of land was filed in one 
 
SALES— I— II. 430 
 
 of the late courts of equity, no final decree having been ren- 
 dered therein at the adoption of the Constitution, the clerk 
 of the Superior Court has no jurisdiction, and the Judge 
 none except at term time, to hear and determine a petition 
 filed in the cause praying for a re-sale of the property. 
 Greene v. Moore, (Hj N. C. JR. 425. 
 
 19. It is clear that the Court may appoint, control and 
 remove its commissioners to sell land. Stone v. Latham, GS 
 X. C. R 421. 
 
 20. A deed from a clerk and master in equity conveys 
 the legal title, and its validity cannot be attacked in a col- 
 lateral way, as for instance, in an action of ejectment. To 
 avoid such a deed it is necessary that proceedings in the 
 nature of a bill in equity should be instituted, and a decree 
 obtained declaring its validity or invalidity. Simmons v. 
 Hassell, GS N. C R. 213. 
 
 II. SALE OF SLAVES. 
 
 1. If, at a sale of a vested remainder in slaves, a procla- 
 mation is made, that if the purchaser did not get the slaves, 
 the}' were not to be paid for, it is competent and relevant on 
 a trial in an action ou the note given by the purchaser, for 
 the vendor to show that his title to such remainder was a 
 good one at the time of the sale by the purchase of the out- 
 standing interest, or otherwise, notwithstanding that the 
 slaves themselves were emancipated before the life-estate fell 
 in. Whiteside v. Williams, GG "N T . C. E 141. 
 
 2. At such a sale, (August, 1SG1,) it is evident that the 
 parties did not contemplate, nor act or talk with reference to 
 such result ; and this is clearly manifest by the terms of the 
 bill of sale thereat, which embraced the contract between the 
 parties, and which is in these words : " received of J. O. W, 
 by note, 11,020, his bid for the interest of J. H. W., dec'd, 
 in two negroes, *********** we war- 
 rant the title of said negroes, as to the interest expressed, un- 
 less recovered from the estate of J. 11 W, by 31. II. W., 
 who forbid the interest mentioned to be sold, and in ease said 
 recovery is made by the said M. II. YV., then the note of the 
 said J. 0. W., shall not be recoverable. Ibid. 
 
 3. If the legal title to such remainder was in the intestate 
 at his death, it. passed by the sale to the purchaser, and he 
 is bound for the purchase money. Ihid. 
 
 4. The sale of a slave in September, 1864, in North Car- 
 olina, constituted a valuable consideration lor any promise 
 made to pay lor the same. HarreU v. Watson, G3 N. C. R. 454. 
 
440 SCALE OF DEPRECIATION. 
 
 SCALE OF DEPRECIATION. 
 
 1. The rule of applying the scale, under the ordinance of 
 October 18th, 1865, and the acts of 18G6, oh. 38 and 39, is: 
 Money contracts are presumed to be solvable in Confederate 
 money, and the value thereof must be estimated by the jury, 
 in coin, accordiDg to the legislative scale, and then the depre- 
 ciation of United States Treasury notes must be added to 
 the amount as estimaied in coin : (This division applies 
 onty to contracts where Confederate money was the conside- 
 ration.) In all other cases of contracts, the value of the 
 property or other consideration, may be shown in evidence, 
 and the jury must estimate such value in U. S. Treasury 
 notes. Robeson v. Brown, 63 N. C. R. 554. 
 
 2. A bond was given for $1,000, dated Nov. 18th, 1862, 
 and payable " one day after date," the consideration being a 
 tract of land : held, to be competent for the plaintiff to rebut 
 the 'presumption as to the currency in which it was solvable 
 under the ordinance of 1866, by proving that it was ex- 
 pressly agreed by the parties at the time, that it was to be 
 paid " in good money after the war," as such expression re- 
 ferred to the currency in which, and not to the time at which 
 it was payable, and was equivalent to, ''in money good after 
 the war." Sowers v. Earnhart, 64 N. R. 06. 
 
 3. A bond for money for the hire of a slave for 1865, 
 given January, 2nd, 1865, is subject to be scaled according to 
 the value of the hire for the year in lawful money, and not 
 according to the legislative table of the values of Confederate 
 curreucy (acts of 1865-'66, eh 39 ) Maxwell v. Hipp, 61 N. 
 C. E. 98. 
 
 4. The presumption under the ordinance of 1865, that a 
 note given for purchases at an administrator's sale in March, 
 1864, payable at twelve months, is solvable in money of the 
 value of Confederate currency, is not rebutted by evidence 
 that at such sale the administrator gave notice that he would 
 receive in payment only such currency as would pay the 
 debts of his intestate, coupled with other evidence that the 
 creditors would not receive Confederate currency, and that 
 the estate was largely insolvent. In such case the plaintiff 
 is entitled to recover the value of the articles sold. Laivs v. 
 Bycroft, 64 K C. R. 100. 
 
 5. Where a bond was given upon the 1 st of January, 1863, 
 for the hire of slaves for the year 1863: held, that the plain- 
 tiff had a right to show to the jury the value of such slaves 
 
SCALE OF DEPRECIATION. 441 
 
 at that place aud for that year, as a guide to them in making 
 up a verdict. Dancey v. Braswell, 64 N. 0- R. 102. 
 
 6. In an action upon a bond in the usual form, given at 
 an administrator's sale in January, 1805, proof that at the 
 sale proclamation was made that " Confederate notes will not 
 be taken," rebuts the presumption made by the Ordinance of 
 1865 as to the currency in which notes, &c, are solvable; and 
 the fact that on the same occasion, before sale made, the ad- 
 ministrator, upon further enquiry by the bystanders, added 
 "that if he had to collect the notes he would collect gold and 
 silver, that if he could pay the notes over to the heirs, &c, 
 they could make any arrangement they were willing to, as to 
 payment," is immaterial. Cherry v. Savage, 64 N. C. R. 103. 
 
 7. A question as to the value of certain cotton, the con- 
 sideration of a note given at an administrator's sale in Greene 
 County in 1863, is to be settled with reference to the time 
 and place of its sale and delivery ; and evidence as to what it 
 was worth within the Federal lines, (whither it could not be 
 transported but in violation of law,) or as to what it was sold 
 for, is incompetent. Moye v. Pope, 64 N". C. R. 543. 
 
 8.. A note for mouey, dated May 9th, 1863, is liable to 
 the operation of the scale, notwithstanding that it is payable 
 in "good bankable currency. Green v. Brown, 64 N. C. R. 553 .. 
 
 9. Where a note was given in 1862, in consideration of the 
 loan of Confederate money, and in 1863 the payee endorsed 
 it to the plaintiff in payment for a tract of land : held, in a 
 suit against the payee and the maker, that the scale to be 
 applied was the value of Confederate money in 1862, and not 
 that of the land afterwards purchased by the payee. Sum- 
 mers v. McKay, 64 N. C. R. 555. 
 
 10. A bond, dated April 3, 1865, payable at twelve months, 
 " in current money," is presumed to be subject to the scale 
 laws. Howard v. Beatty, 64 N". O. R. 559. 
 
 11. In a case where land had been sold by an executor du- 
 ring 1S64, no money having been paid by the purchaser, and 
 subsequently the executor repurchased the land and agreed 
 to pay the purchaser's debt on account of it; and thereupon, 
 a year after the purchase (in April 1865,) he agreed with one 
 of the heirs to pay her one-half of her share in Confederate 
 money, and to give a note payable as above for the other 
 half: held, that this note was not liable to be scaled by 
 proving the value of the land. Ibid. 
 
 12. Also, that there was evidence to warrant a jury that 
 it was not to be scaled at all, but that the court erred in de- 
 ciding itself that such note was not to be scaled. Ibid. 
 
442 SCALE OF DEPEECIATIOK 
 
 13. The word " or," in a bond payable to " Squire Parker 
 or Thomas Parker," construed to meau ' and," from evidence 
 introduced to prove the consideration, under the scale law. 
 Parker v. Carson, 64 K 0. E. 563. 
 
 14. A bond given in 1863, in consideration of the sale of 
 laud, although payable " in currency," is to be scaled by refer- 
 ence to the value of the land, and not to the Confederate 
 money. Ibid. 
 
 15. In an action of debt upon such bond, the judgment 
 was for " $2,494.79, of which sum $1,902 00 is principal :" 
 held, that as the scale law applied, there was no error in such 
 judgment. Ibid. 
 
 16. A judgment rendered in 1864, upon a note for Con- 
 federate money lent in 1862, is subject to the same scale that 
 the note was ; and, therefore, where a surety to the debt paid 
 off the judgment iu 1867, at its face value: held, that he 
 could not recover such full amount from the principal, not 
 having been compelled to pay it. Alexander v. Mintels, 64 
 N. C E. 634. 
 
 17. A bond had been given in 1863, for the price of a 
 slave, and partial payments had been made thereupon in 
 Confederate money: held, that in order to ascertain how 
 much is now due thereupon in National currency, the jury 
 should estimate the value of the slave when purchased, in 
 gold, and deduct therefrom an amount which bears to that 
 value the same proportion which the payments do to the 
 sum specified in the bond ; adding to the remainder the de- 
 preciation of U. S Treasury notes at the time of the verdict. 
 Brown v. Foust, 64 N. C. E. 672. 
 
 18. Where a note was given in 1862, there is presumption 
 that it was given for a loan of Confederate money ; but that 
 presumption is not conclusive. The facts necessary to author- 
 ize the application of the legislative scale are matters of de- 
 fence, and must be pleaded when the note sued on does not, 
 prima facie, show that it is applicable, and, when it does so 
 show, a defendant must in some way claim the application of 
 the scale. Ban'i of Charlotte v. Britton, GG N. 0. E. 345. 
 
 19. A note given in October, 1863, to a distributee, upon 
 settlemeut of an estate, for au amount due iu good mouey, is 
 not subject to the scale of depreciation. McCombs v. Grif- 
 fith, 67 N". C. E. S3. 
 
 20. The rule that au endorser, on default of the maker 
 of a note, becomes liable for the amouut of the note, is not 
 of universal application to notes endorsed during the late war; 
 but the contract of endorsement in such cases is affected 
 
SCALE OF DEPRECIATION. 443 
 
 foy the legislation relating to the scale of depreciation, &c. 
 Saunders v. Jar man, 67 N. C 11. SO. 
 
 21. Where a note for $1,200, given in September, 1803, 
 for property worth $3,000, was endorsed shortly thereafter 
 by the payee, in consideration of the property of the value of 
 81,200, and since the war the endorsee discharged the ma- 
 ker, in writing, upon payment of $310 ; held, that the effect 
 •of the release was not to discharge the endorser, but he is 
 btill liable for the difference, upon an implied contract in the 
 endorsement that, if the maker failed to do so, he would pay 
 the endorser the value of what he received for the note 
 Ibid. 
 
 22. Where a note was given in 1804, for money borrow- 
 ed, one-half of which was to be paid " two years after the 
 termination of this war, without interest, in the then curren- 
 cy," it uas held, that the legislative scale did not apply, and 
 •that half the sum borrowed was payable in United States 
 currency at the time stipulated. Williams v. Monroe, 67 
 N. C. R. 133. 
 
 23. Iu an action on a note given iu 1802, for the purchase 
 of property, the statute makes the value of the property the 
 guide for the verdict of the jury, and it is competent to show 
 what estimate was put upon the property by the parties 
 themselves, at the time of the sale. Ogborn v. Teague, 07 
 N. O. Ii. 355. 
 
 24. Where a note was giveu iu 1872, for the loan of Con- 
 federate money, and afterwards, in 1804, the obligor tendered 
 the amount due in Confederate currency, a portion of which 
 was received, and a new note given for the remainder; it was 
 held, that the old debt must be regarded as paid, and the 
 transaction a new loan and the scale applied as of that date. 
 {JoMe v. Hardie, 07 N. C R. 472. 
 
 25. In a suit on a bond given in Jan. 1804, and expressed 
 to be for value received, the value of the property for which 
 the bond was given is the rule to be applied under the Aet 
 of 1800, chap. 38, in ascertaining the amount to be recov- 
 ered, and this is not varied by the fact that the parties agreed 
 at the time when the bond was given that it might be paid 
 in Confederate money. Nor will it be vailed by the assignee 
 in bankruptcy of the obligor having given the following re- 
 ceipt : " Received of M. M. $00, on account of a note held 
 by me as assignee of W. J. B., and which I have agreed to 
 settle according to the 1 , scale as adopted by law. McBae v. 
 McNair, 0!) N. C. R. 12. 
 
 20. Where, under a parol contract for the purchase of 
 
444 SCALE, &c— SCHOOL, &c— SET-OFF— I. 
 
 land in January, 1862, the purchaser took possession, and in 
 September of the same year gave his note for the purchase 
 money with interest from the preceding 2 anuary : It was 
 held, that in a suit upon the note, the value of the land and 
 not the value of Confederate currency according to the leg- 
 islative scale, was the amount which the plaintiff was entitled 
 to recover. Bryan v. Harrison, 69 N. 0. R. 151. 
 
 27. A judgment during the war is subject to the legisla- 
 tive scale in regard to Confederate notes to be applied at the- 
 date ot the contract, or the time of the breach complained 
 of Stokes v. Smith, 65 X. C R. 352. 
 
 28. Verdict that the " plaintiff is entitled to the amount 
 of the judgment taken at February Term, 1865, subject to 
 the legislative scale," and his Honor had charged the jury 
 that the scale was to be applied at the date of demand, Au- 
 gust, 1863 : held, that the judgment was to be scaled as of 
 August, 1863, and his Honor ought to have directed the- 
 clerk to aid the jury in the calculation necessary for the ap- 
 plication of the scale, so as to fix the amount for which the 
 judgment should be rendered. Ibid. 
 
 See (Confederate Money, 37.) (Pleading — Of the Verdict 
 and Judgment, 11.) 
 
 SCHOOL COMMITTEE. 
 
 According to the Constitution and the Legislation in refer- 
 ence to Common Schools, the school committees of townships 
 are the successors of the school committees of the districts 
 under the former system, and are entitled to all the property, 
 and subject to all the liabilities of their predecessors. School 
 Commissioners, &c, v. Kesler, 67 N. C. R. 443. 
 
 SET-OFF. 
 
 I. At law. 1 II. in equity. 
 
 I. AT LAW. 
 
 1. An account due by the plaintiff to one of several de- 
 fendants, is not competent as a set-off against the debt 
 which is the subject matter of the action. Walton v. Mc- 
 Kesson, 64 N". C. R. 154. 
 
SET-OFF— I. 445 
 
 2. Where two persons bold debts against each other : — 
 in the absence of any understanding between them that the 
 one shall be applied to the other — there is no lien or equity 
 to prevent one party from making an honest assignment of 
 his claim, even if thereby the other is prevented from recov- 
 ering his: This is so, even in cases of entire mutuality of 
 debt. Therefore, where there was not such entire mutuality, 
 and A had assigned his note without endorsement to a trus- 
 tee to pay debts, and afterwards judgments were obtained 
 upon both notes : held, that there was nothing, in the rela- 
 tion of the original parties at the time of assignment, which 
 gave B a right to claim that the trustees took A's note sub- 
 ject to set-off by his, and therefore, a motion by B, to have 
 judgments as above set-off against each other, was denied. 
 McConaughney v. Chambers, 04 N. 0. E. 284. 
 
 3. A note transferred by successive endorsements to dif- 
 ferent persons, is subject to any set-off or other defence which 
 the maker had against any one of the assignees at the date 
 of the assignment, or before notice thereof Harris v. Bur- 
 well, 95 N. G. It. 584, overruling Need v. Lea, 64 JST. C. R. 
 678. 
 
 4. When a person is indebted to the State of North Car- 
 olina, and is sued on such indebtedness, he cannot offer as a 
 set-off or counter claim, the indebtedness of the State to him 
 arising out of coupous of the State which the State legally 
 owes. Battle v. Thompson, 05 N. 0. R. 400. 
 
 5. A set-off is allowed to avoid circuity of actions, hence 
 it cannot be entertained in this case, as none of it citizens 
 can bring suit against the State. Ibid. 
 
 6. When the State sues one of its citizens who has a claim 
 against the State which falls under clause 1, sec. 101, 0. 0. 
 P., and arises out of the contract, or is connected with the 
 subject of the action, it may be that the defence can be made 
 against the State, not however upon the principle that a set- 
 off or couuter claim could be offered by the defendant, but 
 upon the ground that the claim is in the nature of a payment 
 or credit. Ibid. 
 
 7. Damages to realty by wilful carelessness cannot be set 
 up by way of counter claim or set-off to any action of contract 
 for the payment of money. Street v. Bryan, 05 N. 0. R. 
 619. 
 
 8. Tn an action which was commenced before the 0. 
 P., a defendant cannot claim, by way of set-off or recoupe- 
 ment, unliquidated damages arising out of au executory con- 
 contract. Terrell v. Walker, 00 N. C. 11. 244. 
 
446 SET-OFF— II. 
 
 II. IN EQUITY. 
 
 1. Where a plaintiff, or one of several plaintiffs in equity,. 
 is indebted to the defendant, and is insolvent, the claim may 
 be set off without strict regard to mutuality. If such debt 
 be payable to the defendant, the set-off may be effected un- 
 der a petition; if not payable to him but only claimed by him, 
 then the set-off is to be effected under a bill. March v. 
 Thomas, 03 N. 0. E. 87. 
 
 2. Where a decree had been obtained for sums due to 
 several plaintiffs by one defendant, and at the next term the 
 latter made an affidavit before the court, setting forth cer- 
 tain claims upon some of the plaintiffs payable to the affiant, 
 and that the debtors were insolvent, upon which a corres- 
 ponding rule was taken and served upon such debtors : heM t 
 that this proceeding was equivalent to a petition, and that 
 the debtors should be required to answer and show cause. 
 Ibid. 
 
 3. Where the defendant purchased a note on the plaintiff 
 during the week of the trial term of the cause, he is not en- 
 titled to have his demand applied in satisfaction of the plain- 
 tiff's claim. Such a case is not embraced by the second 
 clause of sec. 101, C. 0. P., because it was not ''existing at the 
 commencement of the action ;" nor by the first clause of said 
 section, as it is not " connected with the subject of the ac- 
 tion." Neither has the defendant any right to an equitable 
 set-off upon the mere ground of the insolvency of the plain- 
 tiff. Ri'ldick v. Moore, 65 N. 0. E 382. 
 
 4. To authorize an equitable set-off, some equitable 
 grounds must be shown by the defendant why he should be 
 protected against his adversary's demand. The mere exist- 
 ence of cross demands, or the insolvency of the plaintiff, is 
 not sufficient. Ibid. 
 
 5. When a negotiable instrument has been transferred, it 
 becomes affected in the hands of the holder by any equity 
 the obligor may have against such holder, and no subsequent 
 transfer will defeat that equity : therefore, where A is in- 
 debted to B, who transfers it without endorsement to 0, and 
 at the time of such transfer C owes A a bond ; after holding it 
 some time returns A's bond to B. In an action by B 
 against A upon the bond due B: hdd, that it was subject 
 to the set-off of O's bond to A, though B may have had no 
 notice of the indebtedness of to A. Martin v. Richard- 
 son, 68 N. 0. E. 255. 
 
SHERIFF— I. 
 
 447 
 
 SHERIFF. 
 
 I. Election an<l term of office. 
 II. Sales by sheriffs and purchasers 
 
 thereat. 
 III. Sheriff's return. 
 
 IV. Interpleader for money in sher- 
 iff's hands. 
 V. Liability of sheriffs and their 
 sureties. 
 
 VI. Commissions and fees. 
 
 I, ELECTION AND TEEM OF OFFICE. 
 
 1. The terms of the offices of the sheriffs chosen at the 
 first election held under the present Constitution are, by 
 force of Art. 4 and Art. 2, sec. 29, extended to the year 1872, 
 after which time such terms will be for two years only. Lof- 
 tin v. Sowers, 65 N. C. 11. 251. 
 
 2. An action by the Attorney General in the name of the 
 people of the State and of the person who claims the office 
 of Sheriff is by force of the 360th and 368th sections of the 
 C. 0. P , the proper mode of proceeding against the person, 
 who is alleged to be usurping it, to try the question as to 
 which of the parties is entitled to the office. Ibid* 
 
 3. The disqualification of the persons who hold an elec- 
 tion for sheriff and other State and county officers will not 
 affect the validity of the election. Such persons are de facto 
 officers, whose acts are valid as to third persons, and cannot 
 be collaterally impeached. Wilson v. Peterson, 69 N. 0. E. 
 113. 
 
 4. In the absence of fraud it is not material to the valid- 
 ity of an election that the persons appointed judges to hold 
 it electioneered, or were a,bsent from their posts at different 
 times during the day. Ibid 
 
 5. Under the act of 1871-'72, ch. 185, sec 16, (Battle's 
 Eevisal, ch. 52, sec. 18,) it is unlawful for a voter to vote for 
 different county officers on separate tickets ; but he is not 
 bound to vote for more of the candidates for the different 
 officers than he chooses, and if a ticket be found in the ballot 
 box containing a vote for only one of the proposed officers, it 
 must be counted for him, unless it can be shown that the 
 person who voted it voted also for other candidates on an- 
 other ticket, in which latter case his tickets must all be 
 thrown out. Ibid. 
 
 6. If there be two candidates for different offices having 
 the same name, and a ticket be found in the ballot box hav- 
 ing that name and no other on it, it may be proved by ex- 
 trinsic evidence for which of the candidates it was given. 
 1 bid. 
 
448 SHERIFF— II. 
 
 II. SALES BY SHERIFFS AND PURCHASERS THEREAT. 
 
 1. A purchaser at a sheriff's sale, where the defendant in 
 the execution has the legal title, succeeds only to the rights 
 of the defendant in the execution, and is affected by all the 
 equities against him. Walker v. Moody, 65 N. (J. R. 599. 
 
 2. A sheriff, on a sale by him under execution, can de- 
 mand cash of the purchaser, and on his refusal to pay it 
 (even though such purchaser, as an execution creditor, is 
 entitled to the proceeds of sale, less the cost, and offered to 
 pay cash for the amount of the costs and entered satisfaction 
 for the residue) may immediately resell. Islerv, Andrew's, 
 66 N. C. R.. 553. 
 
 3. Whether a sheriff so acting, arbitrarily, does not subject 
 himself to an action, quere. Ibid. 
 
 4. It seems that on a rule against a sheriff at the instance 
 of such bidder to show cause why he should not execute a 
 deed, the purchaser at a re-sale of the property ought to be 
 made a party. Ibid. 
 
 5. And, on the death of such sheriff, by virtue of the 
 provisions of the Revised Code, ch. 37, sec. 30, the rule 
 should be served on his sucessor. 1 bid. 
 
 6. Before such successor can be required to convey to 
 such first bidder, he is entitled to demand clear and conclu- 
 sive evidence that a sale was made by the predecessor, and 
 and also that the price was paid to him. Ibid. 
 
 7. The natural evidence thereof is the return, though it 
 seems that other evidence may be received. 1 bid. 
 
 8. In the absence of fraud, the irregularity of a Marshal 
 in selling land under execution without due advertisement, 
 although it might expose him to an action at the suit of the 
 party injured, does not vitiate the sale. Woodley v. Gil- 
 liam, 67 K 0. R. 237. 
 
 9. Where executions, issued from different courts, are 
 placed in the hands of different officers, are under these ex- 
 ecutions, giving equal power, the same land is levied upon, 
 and sold by each of those officers : held, that the first sale 
 passes the title of the defendant in the execution. Ibid. 
 
 10. The priority of the lien of executions, as between 
 creditors, is of no moment as respects the title of a pur- 
 chaser. Such matters only govern the application of the 
 proceeds of the sale. Ibid. 
 
 11. A plaintiff having indulged one execution in his fa- 
 vor, there is no presumption that this indulgence extended 
 to subsequent executions. Isler v. 3Ioore, 67 1ST. 0. R. 74. 
 
SHERIFF— II. 449 
 
 12. Uuder the old practice, a purchaser at a sale under a 
 junior execution acquired a good title as against a subsequent 
 purchaser uuder a senior execution. A fortiori is this so, as 
 against a purchaser under execution of equal teste. Ibid. 
 
 13. Where a purchaser ot land at execution sale obtained 
 -a rule upon the Sheriff, who sold the land to require him to 
 execute a conveyance, and the Sheriff gave as a reason for 
 his refusal to make the deed, that the defendant in the execu- 
 tion claimed the land as a homestead, but it appeared that it 
 la I not been laid off, and was not occupied or claimed as a 
 homestead at the time of sale : held, that the rule should be 
 made absolute. Scott v. Walton, G7 N. 0. E. 109. 
 
 14. A sheriff, selliug land under execution, may maintain 
 -an action in his name against the purchaser for the amount 
 bid, upon tendering a deed for the laud sold. McKee v. 
 Lineberger, G9 N. 0. li. 217. 
 
 15. The relation of creditor and debtor exist between the 
 sheriff and such purchaser, by force of contract ot sale, and 
 the sheriff is left to enforce his rights by the usual remedy of 
 action, unless he elects to rescind the contract of sale aud sell 
 the land again. Ibid. 
 
 16. Nor is it necessary to enable the sheriff to bring such 
 action, that he should first make a return of the sale ou the 
 execution. Ibid. 
 
 17. A bidder at a sheriff's sale occupies a relation alto- 
 gether different from a bidder at a sale made by order of a 
 Court ot Equity. In the latter case, the Court takes the bid- 
 ding under its protection aud control, and manages the whole 
 proceeding until the sale is in all things carried into effect : 
 Whereas, In the former the sheriff makes the sale by him- 
 self, without any confirmation or other act ot the Court, and 
 acts by force of a statutory power to sell, &c. Ibid. 
 
 18. A bidder at a sheriff's sale of a tract of land, known 
 as the " Neagle tract," cannot avoid his bid, because the sher- 
 iff refused to convey a narrow strip of laud and mill site and 
 water power adjoining the same, and which the sheriff did not 
 sell, although such water power, &c., was some six months 
 before the sale, advertised as belonging to the •' Xeagle tract." 
 Ibid. 
 
 19. In 1831 and before, in order to subject land to the 
 payment of debts, there was in the first place, a judgment 
 against the personal representative, fixing the debt; and in 
 the second place, a svi. fa., setting out the judgment, and 
 calling upon the heirs to show cause why execution should 
 DOt issue -I'-ainst the land which had descended: then fore. 
 
 29 
 
450 SHERIFF— II— III. 
 
 a purchaser at a sheriff's sale under an execution unsup- 
 ported by such judgment and scire facias, obtains no title. 
 Crawford v. Dalrymple, 70 IS". 0. K. 156. 
 
 20. A sheriff, who advertises a sale of land, levied upon 
 under execution to take place on Monday, tbe first day of 
 the term, as prescribed by law, which sale is postponed from 
 day to day, has a right to sell the same on Friday succeed- 
 ing. Wade v. Sanders, 70 N. 0. R. 270. 
 
 21. Where an execution, issued from the County Court in 
 1861, and regularly thereafter until the Spring Term, 1807 r 
 of the Superior Court, to which Court it was transferred un- 
 der the ordinance of the 23d of June, 1800, but no motion 
 made at Spring Term, 1807, to docket it in the Superior 
 Court, and the same was not re-issued until December (Spe- 
 cial) Term, 1807, such execution lost its lieu on the land 
 levied upon, and a sale of the land by virtue thereof, con- 
 veyed no title. Brem v. Jamiesson, 70 N. C. R. 500. 
 
 22. Where the name of one or more of the defendants is 
 omitted in an alias execution, regularly issued before that 
 time and levied on the laud of such defendant, the omission 
 is fatal, and a sale of the land under such execution is in- 
 valid. Ibid. 
 
 See (Rent, 2.) 
 
 III. SHERIFF'S RETURN. 
 
 1. The mere affidavit of the party upon whom a notice- 
 was alleged iu the sheriff's return to have been served, is in 
 the absence of proof, no ground for reviewing a declaration 
 in a decree, that it satisfactorily appeared to the court that 
 such return was true. Cotten, ex \)arte, Phil. Eq. R. 79. 
 
 2. Where a ven. ex, was returned to August Term 1806 
 of Wayne County Court endorsed " no sale on account of 
 the Stay Law ;" held, that such was not a due return ; also, 
 that the plaintiff in the execution was eutitled to have an- 
 other writ of ven. ex. issued from the August Term. Aycock 
 v. Harrison, 03 N. C. R. 145. 
 
 3. The return to an execution, " wholly unsatisfied," is 
 not a sufficient return, as it does not conclusively appear 
 thereby that no goods of the testator were to be found. Af- 
 ter an absolute judgment against executors, the proper re- 
 turn to an execution issuing thereon, is " no goods or chat- 
 tels of the testator to be found." McDowell v. Clark, 08 N". 
 C. R. 118. 
 
 4. A sheriff is bound to return every process which comes. 
 
SHERIFF— III— IV. 451 
 
 to his Lands, not void, with a statement of his action under 
 it ; and if he has not completely obeyed it, with a lawful 
 reason for his omission. Bryan v. Hubbs, 09 N. 0. R. 423. 
 
 5. Until the sheriff received notice that the execution 
 has been superseded, lie is to obey it according to its tenor. 
 On receiving such notice, it is his duty to stop proceeding, 
 and to return the writ with a statement af his action under 
 it, and the reason for his ceasing to act. Ibid. 
 
 See (Certiorari, 1.) (Corporation, 1.) (Sheriffs — of the 
 liability of sheriffs and their sureties, 3.) 
 
 IV. INTERPLEADER FOR MONEY IN SHERIFF'S HANDS. 
 
 1. When a sheriff has money in his hand, raised under exe- 
 cutions against the same defendant in favor of two or more dif- 
 ferent creditors, and the money is claimed by one of the cred- 
 itors to the exclusion of the others, he may, for the purpose 
 of assertiug his claim, obtain a rule against the sheriff, and 
 under the C. C P., sec, 05, cause the other creditors to be 
 brought in by notice, and then upon the answer of the sheriff 
 the court may proceed to adjudicate upon the rights of the 
 parties, and in doing so, will not be bound by the returns 
 which the sheriff may have previously made upon the execu- 
 tions in his hands. Dewey v. White, Go jS". C. R. 225. 
 
 2. The G. C. P., sec, 05, does not embrace a case 
 where a sheriff has an execution in favor of one person, and 
 levies it upon property claimed by an other, as in such a case 
 the sheriff cannot require these persons to interplead, because, 
 if the claim of the person, against whom there is no execu- 
 tion, be just, the sheriff is a wrong-doer as to him. Ibid. 
 
 3. The practice of the Court of England prior to the Stat, 
 of 1 and 2, William IV. chap. 58, and under that statute, 
 upon conflicting claims to money in the hands of a sheriff 
 raised under executions in favor of different creditors, and 
 also the practice in like cases in the court of the several 
 States of the Union, and of the United States, and of this- 
 State prior to the adoption of the C. C. P. stated and ex- 
 plained. Ibid. 
 
 4. When a sheriff has money in his hands, raised under 
 executions in favor of different creditors against the same 
 defendant, and the creditors set up conflicting claims to the 
 money, it is not such a case as may be submitted to a Judge, 
 without an action under the C P., sec. 315, by the adverse 
 claimants. Bates v. Lilly, 05 N. C. E. 232. 
 
 5. Under the former system, it a sheriff hail doubts as to 
 
452 SHERIFF— IV.— V. 
 
 tbe proper application of money in Lis bands raised under 
 different executions, he might apply to the court for advice, 
 which advice would be given upon the facts disclosed iu his 
 return ; and the court would refuse to give it if the sheriff 
 claimed an interest in the fund, or had incurred an indepen- 
 dent liability to any of the execution creditors. Ibid. 
 
 6 The right of interpleader given by the 0. 0. P., under 
 "which a sheriff who has money in his bands, raised under 
 executions in favor of different creditors against the same 
 defendant may bring in the plaintiffs in the executions to 
 contest their respective claims, was intended to apply to a 
 controversy or action properly constituted in court. Ibid. 
 
 V. OF THE LIABILITY OF SHERIFFS AND THEIR SURETIES. 
 
 1. Where one who bad been arrested under a capias ad 
 respondendum, escaped from the sheriff, and the latter by his 
 return negatived any idea that be intended to become special 
 bail for the party escaped : held, that the sheriff and his sure- 
 ties were liable upon his official bond for such escape, and 
 that the measure of damages, was, not the debt and interest, 
 but such actual damages as the plaintiff has sustained. Luslc 
 v. Falls, 03 K 0. E. 188. 
 
 2. An action brought in February 1808, for the penalty 
 of one hundred dollars against a sheriff for neglecting to note 
 upon process the day on which it was received, Eev. Code, 
 ch. 31, scec. 39 : by the effect of sees. 47 and 48 of the same 
 chapter, should be in the name of the State as plaintiff. 
 Duncan v. PMlpot, 04 X. 0. E. 479. 
 
 3. Under the 0. 0. P., sees. 75 and 555, a sheriff is not 
 required to execute process until his fees are paid or tendered 
 by the person at whose instance the service is to be rendered ; 
 but this does not excuse him for a failure to make a return 
 of the process. A writ of summons is a mandate of the 
 court and must be obeyed by its officer, and if he has any 
 valid excuse for not executing the writ, he must state it in 
 bis return. Jones v. Gupton, 65 N". 0. E. 48. 
 
 4. The duties and liabilities of a sheriff in relation to the 
 execution of process are nearly the same under the 0. 0. P. 
 as under tbe old system, (see 0. 0. P., sec 354,) but the mode 
 of procedure for enforcing a judgment nisi against him is 
 (•hanged from a scire facias to a civil action, as prescribed in 
 0. C. P., sec. 302, and the summons must be in the same 
 court as the judgment, and must be returned to the regular 
 term thereof. Hid. 
 
SHERIFF— V. 453 
 
 5. After a judgment has been given summarily on mo- 
 tion under the act of 1869-70, ch. 225, sec. 34, against a 
 defaulting sheriff and his sureties, it should not be vacated 
 upon a mere motion founded upon the allegation that the 
 sheriff's bond did not appear to have been accepted by the 
 County Commissioners and registered by their order, when 
 it did appear to have been registered. Jenkins v. Howell, 65 
 JS\ C. E. 61. 
 
 6. Under the act of 1869-'70, ch. 225, sec. 34, which, iu 
 the case of a defaulting sheriff, authorizes a summary judg- 
 ment on motion against him without other notice than is 
 given by the delinquency of the officer, the word "him'' 
 ought to be construed, in connection with other provisions 
 of the act, to mean " them," so as to authorize the judgment 
 to be taken against the sheriff and his sureties Ibid. 
 
 7. The Act of 1869-70, chap. 71, which repealed certain 
 acts in relation to appropriations lor railroads, and directed 
 that the taxes which had been collected under them for pay- 
 ing interest, &c, should be "credited to the counties of the 
 State upon the tax to be assessed for the year 1870, in pro- 
 portion to the amounts collected from them respectively," 
 justified the sheriffs iu retaining the amount of such taxes iu 
 their settlement with the Public Treasurer, until it was re- 
 pealed by an act passed the 21st December, 1870. Jenkins 
 v. Briggs, 65 X C. R. 159. 
 
 8. A sheriff cannot be amerced for failing to collect a 
 a judgment based upon a note executed in November, 1865, 
 unless he had actual notice that the judgment was granted 
 upon a contract made after the 1st of May, 1865. Thompson 
 v. Bern/, 65 N. C. 11. 184. 
 
 9. It is well settled, that if a court issuing process has a 
 general jurisdiction to issue such process, and the want of 
 jurisdiction does not appear upon the face of the paper, a 
 sheriff and his assistants may justify under it. State v. J?ur- 
 guson, 67 N. C. R. 219. 
 
 10. The refusal of a sheriff to pay back, on demand, 
 money received through a mutual mistake, in excess of the 
 true amount of an execution collected by him, is a private mat- 
 ter to be settled between the parties, and is not a breach of 
 his official bond, for which his sureties can be held responsi- 
 ble. Ireland v. TapscoU, et at., 68 N. C R 300. 
 
 11. A sheriff having an execution in his hands is not in- 
 dictable for levying upon and seizing property in the posses- 
 sion of, and belonging to a son of the defendant in the exe- 
 cution, when he acts bona fide under a bond of indemnity 
 
454 SHERIFF— Y—YL— SLANDER. 
 
 He is liable civilly, but Dot criminally. State v. Tatom, 69 
 N. 0. R. 35. 
 
 See (Abatement — By the death of the parties, 8.) 
 
 VI. COMMISSIONS AND FEES. 
 
 1. Whenever a sherifl into whose hands an execution is 
 placed, levies the same and advertises a sale, he becomes en- 
 titled to his commissions. And if the plaiutirt in the exe- 
 cution receives the amount from the debtor, and orders the 
 same to be returned unexecuted, he makes himself liable tor 
 the sherifi 's fees. Willard v. Satchwell, 70 N. 0. R. 208. 
 
 2. Until his fees are paid or tendered, a sherifl is not 
 I)ound to execute process. Johnson v. Kennedy, 70 1ST. 0. R. 
 435. 
 
 SLANDER. 
 
 1. In an action of slander where the pleas are general 
 issue and justification, the jury are not to consider the latter 
 plea if they find the former one to be true. Sumner v. Chip- 
 man, 65 N. 0. R. 623. 
 
 2. Pleading general issue, and justification to an action 
 of slander, does not dispense with the proving of the words 
 spoken, nor is the latter plea an admission of the speaking 
 of the words when the general issue had been pleaded. Ibid. 
 
 3. In an action for slander, if the defendant does not 
 plead the statute of limitations, the plaintiff may recover, 
 though the proof shows that the words were spoken more 
 than six months before the commencement of the action. 
 Pegram v. Stoltz, 67 N. 0. R. 144. 
 
 4. When the slanderous words are alleged to have been 
 spoken on a certain day, and at a certain place, the plaintiff 
 may prove such words spoken on a different day and a differ- 
 ent place. Hid. 
 
 5. Under the C 0. P., if the complaint alleges a positive 
 charge of crime, as slander, and the evidence shows a condi- 
 tional charge, still the plaintiff can recover, if the conditional 
 words conveyed the same idea to the minds of the jury. 
 Ibid. 
 
 6. When the complaint in an action for libel says the de- 
 fendant " published concerning the plaintiff in a newspaper, 
 &c, a certain article containing the false and defamatory 
 
SLANDER,— SPECIAL COURTS, &c. 455 
 
 matter following," &c., it sufficiently avers that the defama- 
 tory matter was concerning the plaintiff. The article — which 
 is the whole article and every part of it — is averred to be 
 concerning the plaintiff, and as the whole includes all its 
 parts, the defamatory part must be concerning the plaintiff. 
 Carson v. Mills, 09 N. C. R. 122. 
 
 7. An article in a newspaper containing the following 
 words: "No! counsellors and friends of the Adairs, (who 
 had been convicted of murder,) I blame not an attorney or 
 attorneys for taking fees and defending the most guilty crim- 
 inals as far as the law and respectable evidence will justify 
 in giving them a fair trial, but after that, going to the streets 
 among people, proclaiming their innocence, trying to influ- 
 ence public opinion, hiring or otherwise procuring false- 
 hearted and unprincipled scoundrels to perjure themselves 
 by giving affidavits and implicating other innocent persons 
 to obtain the pardon or release of the Adairs. Your slanderous 
 and false charges against innocent men must fall to the 
 ground, but they show your unprincipled course," is apparent- 
 ly libelous. Ibid. 
 
 See (Pleading — General principles of pleading, 4.) 
 
 SPECIAL COURTS IN CITIES AND 
 
 TOWNS. 
 
 1. Petit larceny being a felony in this State, the Special 
 Court established for the City of Wilmington has no jurisdic- 
 tion of it. Slate v. Hauyliton, 03 N. C. R. 49 L. 
 
 2. Neither a Justice of the Peace, nor the Judge of the 
 Special Court of the City of Wilmington, has jurisdiction over 
 larceny. McLaurine, ex parte, 03 N. C. K. 528. 
 
 3. The power of the Judge of the Special Court of Wil- 
 mington to issue writs of habeas corpus, is confined to crim- 
 inal cases hilling within his jurisdiction. Ibid. 
 
 4. By the Constitution of the State original jurisdiction 
 of civil actions is vested exclusively either in the Superior 
 Courts or in J ustices of the Peace ; and Justices of the Peace 
 are required to be elected by the several townships ; therefore, 
 t lie act of December 10th, 1868, (amending the charter of the 
 City of Wilmington,) so far as it gives to the Judge of the 
 Special Court jurisdiction of certain penalties and lines, and 
 the general powers of a Justice of the Peace, is void. Wil- 
 mington v. iJaris, 63 X. C. II. 582. 
 
456 SPECIAL COURTS, &0.-SPECIFIC, &C-STAMPS. 
 
 5. Article IV, Sec. 19, of the Constitution authorizing 
 the Legislature to establish Special Courts in cities or towns, 
 is confined to misdemeanors. The Legislature declared that 
 larceny of less value than twenty-five dollars should be a mis- 
 demeanor. (Act of 1869-'70, ch. 37.) State v. Walker, 65 
 N. C E. 461. 
 
 6. The effect of the repeal of the aforesaid act was to de- 
 prive the Special Court of the City of Wilmington of jurisdic- 
 tion of larceny. Ibid. 
 
 7. Special Courts for cities and towns are not put by the 
 Constitution upon the same footing as the Court for the trial 
 of impeachments, the Supreme Court, the Superior Courts 
 and Courts of Justices of the Peace. State v. Smith, 65 N. 
 C. R. 369. 
 
 8. These latter Courts are established by the Constitution, 
 and owe their existence to that instrument alone, and are in 
 no wise dependent upon an act of the Legislature. Ibid. 
 
 9. Special Courts for cities and towns are creatures of the 
 legislative will and discretion, and owe their origin to the ex- 
 pression of such legislative will and discretion by constitu- 
 tional permission. Ibid. 
 
 10. Such discretion is not exhausted by an act erecting 
 such courts, but may be directed as well to their abolition. 
 Ibid. 
 
 11. The Judge of such a court has not a " vested right" 
 in his office within the meaning of the Constitution, as that 
 principle only applies where the office remaius. Ibid. 
 
 12. The act of March 30, 1871, (act 1870-71, chap. 60,) 
 had the effect to abolish the office of Judge of Special Court 
 of the city of Wilmington. Ibid. 
 
 SPECIFIC PERFORMANCE. 
 
 See (Contracts — Constructing of Contracts and their en- 
 forcement.) 
 
 STAMPS. 
 
 1. The United States statute, (1866, ch. 184, sec. 9,) pro- 
 viding that no deed, writing, &c, required by law to be 
 stamped, which has been signed or issued without being duly 
 
STAMPS.— STATUTES. 457 
 
 stamped, &o., shall be admitted or used as evidence in any 
 court, &C-, &c. : is a rule of evidence for the Courts of the 
 United States only. Haight v. Grist, 64 N. 0. R. 739. 
 
 2. Whether the courts of this State will enforce contracts 
 which were not stamped by the parties by design, to defraud 
 the United States of revenue : Qucere ? Ibid. 
 
 STATUTES. 
 
 1. An act incorporating a ferry or toll-bridge, is a pri- 
 vate act. Carrow v. Bridge Co., Phil. L. E. 118. 
 
 2. Therefore, the court cannot take judicial notice of the 
 act of December, 1860, which amends the charter of the 
 Washington Toll-Bridge Company. Ibid. 
 
 3. That construction of a statue which attributes to the 
 Legislature the exercise of a doubtful power, will not, in the 
 absence of direct words, be readily adopted. Mardre v. Fel- 
 ton, Phil. L E. 279. 
 
 4. The Raleigh and Gaston Railroad Company did not 
 incur the penalties imposed by the Rev. Code, ch. 101, sec. 
 30, by transporting its passengers and freights in boats across 
 the Roanoke at Gaston, during the time that there was no 
 bridge at that point, in consequence of its having been 
 burned by the military in 1865. Pugh v. B. & G. B. B. Co., 
 Phil. L. R. 35;). 
 
 5. It, pending an appeal in a criminal case, the statute 
 authorizing the indictment is repealed, judgment will be ar- 
 rested. State v. Nutt, Phil. L. R. 20. 
 
 6. Statutes which change modes of procedure, govern 
 suits pending at the time of their enactment. Sumner v. 
 Miller, 04 N. C. R. 688. 
 
 7. The repeal of a statute, repealing a former statute, 
 leaves the latter iu force. Brinhley v. Swieegood, 65 N. C. 
 E. 026. 
 
 8. To give operation to the maxim leges postoriores, pri- 
 ores contrarias abrogant the latter law must be in conflict 
 with the former ; therefore, when a latter statute is almost 
 in ipsissimis verbis with a former one : held, that there was 
 no repeal of the former. Kesler v. Smith, 60 IS". C. R. 154. 
 
 9. The Statute, Rev. Code, ch. 1, sees. 9, 10, 11, is not 
 repealed by Acts 1808-'09, ch. 113, sec. 70, 71, 72, 114. 
 Ibid. 
 
 10. General statutes do not bind the sovereign, unless for 
 
458 STATUTES.— STAY LAW.— SUBROGATION. 
 
 that purpose the sovereign is expressly mentioned in them. 
 State v.Adair, 08 N. C. E. 08- 
 
 11. Where a statute may be construed, without violence 
 to its provisions, in a sense which would make it constitu- 
 tional, a court will give it that construction, rather than a 
 contrary one, which would make it unconstitutional and void. 
 Corners of Granville Co. v. Ballard, 69 N. 0. E. 18. 
 
 12. The Act of 1870-'71, ch. 267, applies only to offences 
 committed after its passage, and does not repeal the Act of 
 1868-'69, ch. 20, as to any offense committed before State 
 v. Jones, 69 N. 0. E 304. 
 
 See (Practice — Some miscellaneous rules of practice, 6.) 
 
 STAY LAW. 
 
 1. The Stay Law, contained in the Ordinances of June, 
 1800, and March 1868, impairs the obligation ot Contracts, 
 ^and is therefore void. Jacobs v. Smallwood, Rives v. Wil- 
 liams, Holt v. lseley, Swepson v. Chapman, Tate v. Estes, 
 Grier v. Bysaner, 03 N. 0. It. 112; Rives v. Williams, Ibid 
 128, Holt v. Iseley, Ibid 128, Swepson v. Chapman, Ibid 130, 
 Tate v. Estes, Ibid 130, Greenlee v. Greenlee, Ibid 131. 
 
 2. The act of March 10th, 1869, (Stay Law,) does not 
 profess to authorize the continuance of causes then pending 
 on issues regularly joined upon the ordinary pleas for delay. 
 Greenlee v. Greenlee, 03 N. 0. E. 593. 
 
 SUBROGATION. 
 
 The devisee of a tract of land, which, by direction of the 
 testator, had been levied upon to satisfy a debt, and was still 
 bound by the levy at the death, — having paid the debt, was 
 entitled to be subrogated to the claim of the creditor against 
 the personal estate of the testator. Redmond v. Burroughs, 
 63 N. 0. E. 242. 
 
 See (Surety and Principal, 15, 16, 24, 27.) 
 
.SUBETY AXD PRINCIPAL. 459 
 
 SURETY AND PRINCIPAL. 
 
 1. Sureties can sustain a bill to have a debt paid by their 
 principal or out of his estate, before they have been compelled 
 to pay the debt. Thigpen v. Price, Phil, Eq. R. 14(5. 
 
 2. Sureties upon a bond may file a bill for exoneration, 
 without being compelled previously to pay off such bond; — 
 but such equity is merely collateral, and does not place them 
 in a better condition as against their principal, than if they 
 held his bond for the amount for which they are liable. Tay- 
 lor v. Miller, Phil. Eq. R. 305. 
 
 3. Where a vendor had executed a full title to the land 
 sold, taking from the vendee a personal bond with two sure- 
 ties for the purchase money ; upon the insolvency and death 
 of the vendee and one of the sureties, and a sale of the laud 
 by the devisee of the vendee to a purchaser with notice : 
 held, that the other surety could not subject the land for his 
 indemnification upon the bond. Miller v. Miller, Phil. Eq. 
 
 MX, <So. 
 
 4. The relation between a creditor and a surety does not 
 oblige the former to active diligence in collecting his debt out 
 of the principal. Thornton v. Thornton, 63 N. 0. R. 211. 
 
 5. The damage received by a surety in consequence of 
 the creditor's countermanding an execution ordered by the 
 former against the property of the principal under a judg- 
 ment obtained by the creditor against the principal and surety 
 both, is damnum absque injuria, and gives the surety no cause 
 of complaint which a court will hear. Ibid. 
 
 G. Where such creditor, in his character as an attorney, 
 obtained an adjudication in bankruptcy against the principal 
 judgment debtor, and thus prevented any hen from attach- 
 ing upon a part of his property : held, that the surety could 
 not complain. Ibid. 
 
 7. Where two sureties on a note to a bank, agreed, after 
 the insolvency of their principal, to employ a broker to buy 
 notes of tbe bank to an amount sufficient to pay the debt, 
 and one of them paid the broker for notes purchased by him 
 and discharged the debt: held, that he could maintain an 
 action on the case against his co-surety for contribution. 
 Deliossett v. Bradley, 63 N. 0. E. 17. 
 
 8 Where the principal placed property in the bauds of 
 a surety, sufficient to satisfy the debt, and then left the State : 
 held, that a third person, also bound for the debt as surety, 
 having been compelled to pay it, might recover its amount 
 
460 SURETY AND PRINCIPAL. 
 
 from the person who had received the property, without 
 making a previous demand. Parham v. Green, 64 N. 0. R. 
 436. 
 
 9. Where a creditor, by a binding contract gives further 
 time to the principal in a debt, this discharges the surety, 
 "by matter in pais." Such discharge cannot be enforced by 
 a Justice of the Peace, but by the Superior Court only : 
 Howerton v. Sprague, 64 ST. C. R. 451 . 
 
 10. Therefore, in a case in which the creditor had taken 
 out a process against the principal and surety before a Jus- 
 tice of the Peace, and had obtained judgment, and levied an 
 execution upon the goods of the principal, which subsequent- 
 ly he had instructed the officer to deliver up, upon, as was 
 alleged, some binding contract to give such principal further 
 time : held, that the transaction did not amount to a satis- 
 faction of the execution, but merely to a discharge by matter 
 in pais; to enforce which the surety did right in resorting to 
 an injunction in the Superior Court. Ibid 
 
 11. AVhere property is conveyed to the State by one for 
 whom it has become surety, in order to indemnify it against 
 the risk incurred, the State becomes a trustee of such prop- 
 erty for the benefit of the creditor, also, and so, cannot do any 
 act calculated to impair the security. Bank v. Jenkins, 64 
 H". C. R. 719. 
 
 12. Where a State becomes surety, (here, by an endorse- 
 ment of the bonds of a Railroad Company,) the equities aris- 
 ing to the creditor out of any contract for indemnity of the 
 State by the principal debtor, are as much entitled to protec- 
 tion, as would be any rights directly created by a contract 
 between the creditor and the State. Ibid. 
 
 13. Whether equitable obligations assumed by a State as 
 a trustee can be enforced indirectly through the process of an 
 injunction against the Treasurer of the State: Qu&re't Ibid. 
 
 14. Where the State authorized a Railroad Company to 
 issue bonds to the amount of $2,500,000, secured by a first 
 mortgage of its property, and, further, engaged to endorse 
 $1,000,000 of such bonds, provided that the Company would 
 deposit with the Treasurer of the State, $500,000 other of 
 such bonds, as an indemnity against its paying principal or 
 interest upon those which it had endorsed : held, that a cred- 
 itor who owned some of the endorsed bonds could not be said 
 to be either injured or damaged by subsequent legislation 
 providing that the $500,000 should be surrendered to the 
 Company, to be used in constructing aud completing its road 
 and not otherwise. Ibid. 
 
SURETY AND PRINCIPAL. 4G1 
 
 15. A surety to a note who pays off and discharges the 
 same, is entitled to the benefit of all the securities which 
 have been taken by the creditor from the principal. York v. 
 Landis, 65 N. 0. R. 535. 
 
 10. In such a case the surety can assign over to any one 
 his demand and equitable rights against the principal, and 
 the assignee will be substituted to all the rights of the origi- 
 nal creditor. 1 bid. 
 
 17. If a creditor enters into any valid contract with a prin- • 
 <ipal debtor, without the assent of the surety, by which the 
 rights or liabilities of the surety are injuriously affected, such 
 contract discharges the surety. Mere delay on the part of 
 the creditor to sue or collect the debt, or even his refusal to 
 sue, when required by his surety, or his express promise of in- 
 definite indulgence, does noc discharge the surety. Deal v. 
 Cock ran, 00 N. C. R. 260. 
 
 18. When a creditor held a note given in 1859, and the 
 principal debtor proposed to pay the same in Confederate 
 toouey in 1863, which the creditor declined to receive, but 
 made an agreement that if the debtor w T ould postpone the 
 payment, interest should cease "from that time until the de- 
 mand ;" Jieldj that such an agreement did not amount to for- 
 bearance for any definite or specified time, nor increase the 
 risk of the surety in any way, and could not therefore dis- 
 charge him from liability. It would seem that if the agreement 
 had been to forbear until the end of the war, it would have 
 been nudmun pactum, and therefore not binding. Ibid. 
 
 19. A surety who pays the bond of his principal thereby 
 discharges it; and his right of action against the principal 
 for the recovery of the amount of such bond being upon a 
 simple contract, is barred after three years by the statute of 
 limitations. Bledsoe v. Nixon, 68 N. C. R. 521. 
 
 2D. Where, upon the purchase a chattel personal, the 
 purchaser gave his note with sureties for the price, and it 
 was agreed by parol between the parties at the time that the 
 chattel should belong to the sureties until the note was paid: 
 it was held, that the effect of the agreement was to pass the 
 title to the chattel from the seller to the sureties, and not 
 from the seller to the purchaser, and then from him to sure- 
 ties for their indemnity, for in the latter case it would have 
 "••Mi void for waut of registration. Worth)/ v. Cole, 69 N. 
 C. R. 157. 
 
 21. When the sureties to a note given by the purchaser 
 for the price of a personal chattel took the title to themselves 
 until the note should be paid, and afterwards the chattel was 
 
4G2 SURETY AND PRINCIPAL. 
 
 wrongfully converted by another person, and a judgment was 
 obtained by the seller on the bond against the sureties : it teas 
 held, that the amount recovered by the sureties for the 
 wrongful conversion of the chattel might be adjudged to be 
 satisfaction of the judgment obtained on the note. Ibid. 
 
 22. Although an officer of a railroad company is bound 
 to know the by-laws of the corporation, it does not follow 
 that the sureties to his bond are presumed to know them, 
 unless there be a reference to them in the bond. The obli- 
 gation of the sureties is confined to the words of their bond, 
 and cannot be extended beyond them. Atlantic & N. C. R. 
 B. v. Cowles, 69 N. 0. R. 59. 
 
 23. The surety on a bond is entitled to all the legal and 
 equitable defences to which his principal is entitled, which 
 attached to or was counected with the debt, evidenced by 
 such bond. And it is competent for such surety to introduce 
 any evidence tending to set up such defence ; for instance, to 
 prove a set-off or counterclaim contracted in reference to the 
 debt sued upon. Jarratt v. Martin, 70 N. 0. R. 459. 
 
 24. A surety to an administration boud who paid one- 
 half of a debt recovered against the insolvent administrator, 
 is not subrogated to the rights of the creditor whose debt he 
 paid, but to the rights of the administrator for whom he 
 paid it Clark v. Williams, 70 N. 0. R. 679. 
 
 25. An administrator, against whom a judgment was 
 recovered after he had turned over the property of his intes- 
 tate to the distributees, has the light to recover from them, 
 each their ratable part of such debt, when it appears that the 
 intestate was only surety to the debt recovered, and that at 
 the time he delivered the property to the distributees, the 
 principal in the debt was solvent and able to pay the same, 
 and was rendered insolvent by the manumission of his slaves. 
 Ibid. 
 
 20. In such case, the distributees will contribute each 
 their ratable part and no more, the solvent ones not having 
 to pay the parts of the insolvent. Ibid. 
 
 27. A surety of a judgment debtor, has an equity to be 
 subrogated to the rights of his creditor, when it has been 
 agreed by several creditors of the same debtor, that his land 
 should be sold, although conveyed before, their executions 
 became liens, and the proceeds of such sale should be divi- 
 ded in proportion to the amounts of their judgments — the 
 judgment of the creditor whose debt was secured, being 
 credited with his interest in the proceeds of the sale, so as to 
 diminish the amount to be paid by the surety. And if this 
 
SURETY, &c— TAXES AND TAXATION. 463 
 
 agreement as alleged in the complaint is denied or contro- 
 verted by the answer, issues must be made and submitted 
 for the purpose of establishing said agreement before the equi- 
 ties of the plaintiffs can be declared. Person v. P.rry, 70 
 X. C R 697. 
 
 See (Ordinances of the Convention.) 
 
 TAXES AND TAXATION- 
 
 1. Under the ordinance of the 18th of October, 1805, con- 
 cerning revenue, a provisional sheriff, who had not given bond 
 as required thereby, was not authorized to demand of mer- 
 chants an account of their purchases, and of the taxes due 
 from them. State v. Blagge, Phil. L. R. 11. 
 
 2. The ordinance of the 1st October, 1865. entitled " An 
 ordinance to provide," &c, in some sections operates retro- 
 spectively for the whole of that year ; such operation is valid 
 aud binds persons even during such time within that year as 
 they did business iu places "within the Federal lines." State 
 v. Bell, Phil. L. R. 76. 
 
 3. Except as restrained by the laws of the United States 
 and the Constitution of the State, the taxing power of the 
 State extends to all objects within its territory, and has no 
 limitation except iu the responsibility of the representative 
 to his constituents. Ibid. 
 
 4. A tax upon the past business of the current year is 
 not a "a capitation tax." Ibid. 
 
 5. The 12th section of the Revenue Act of 1866, which 
 imposes a tax of fifteen per cent, upon spirituous liquors pur- 
 chased by residents, of persons not residing in the State, and 
 only ten per cent, upon such as are purchased from the ma- 
 ker in the State, is constitutional. Davis v. Dashiel, Phil. L. 
 R. 1 14. (See post, 26.) 
 
 6. The right of suing a sheriff to recover taxes that have 
 been paid under protest, does not apply to taxes that have 
 been collected by virtue of a tax list. Huggins v. Hinson, 
 Phil. L. R. 126. 
 
 7. A tax list is of the nature of an execution. Ibid. 
 
 8. Distinction as to the above right in case where the tax 
 is collected by a sheriff without a list and with one, stated 
 and explained. Ibid. 
 
 0. The only remedy for a person who has been imprope rl 
 assessed by the list-taker, is that provided under the Reve- 
 nue Acts. Ibid. 
 
464 TAXES AND TAXATION. 
 
 10. An executor is not liable, as such, for collateral tax 
 to the State upon a devise of land to himself, though he be 
 liable as au individual. State v. Brevard, Phil. Eq. R. 141. 
 
 11. An executor, in this State, is not responsible for col- 
 lateral taxes upon the property of his testator situate in an- 
 other State at tbe death of the testator. Ibid. 
 
 12. If au executor is required to make good valueless cur- 
 rency in his hands on settlement with the legatees, the State 
 is entitled to its tax on the amount. Ibid. 
 
 13. The duty ot collecting taxes, although in this State 
 ordinarily discharged by sheriffs, is not incident to their office 
 as such, and so does not terminate with the determination 
 of such office. Perry v. Campbell, 63 N. 0. R. 257. 
 
 14. Therefore, one who is specially deputed by a sheriff 
 to collect taxes, continues to be a deputy for that purpose 
 after a resignation by his principal ; and the sureties upon 
 his bond are liable for the money by him collected after that 
 time. Ibid. 
 
 15. A deputy sheriff, who in his deputation is authorized 
 to collect State and county taxes out of the persons named 
 in said deputation, is not required to exhibit a certified copy 
 of the tax lists from the officer required to make out said 
 list, before he distrains property to enforce the payment 
 thereof. State v. Lids, 65 N. 0. E. 502. 
 
 16. The tax list issued to a sheriff has the force of an 
 execution, and justifies the sheriff in making seizures there- 
 under as fully as an executiou issued from a court of compe- 
 tent jurisdiction. Ibid. 
 
 17. The commissioners of a county have no right to ex- 
 ceed the double of the State tax, except, to pay the debts of 
 the count}-, legally contracted before the adoption ot the Con- 
 stitution ; when the tax is for a special purpose, and has been 
 allowed by an act of the General Assembly. Simmons v. 
 Wilson, 66 X. C. R 336. 
 
 18. The General Assembly have an unlimited right to 
 tax all persons domiciled withiu the State, and all property 
 w r ithin the State, except so far as this right has been limited 
 by the provisions of the Constitution, either by express words 
 or by necessary implication. Pullen v. Commas of Wake, 
 66 X. C. R. 361. 
 
 19. The General Assembly has, under this general power, 
 the right to tax legacies, collateral descents, &c, and when 
 such tax is imposed upon the succession, or on the right of 
 the legatee to take under the will, the power is not restrained 
 or limited by the provisions of the Constitution relative to 
 the tax on property. Ibid. 
 
TAXES AXD TAXATION. 465 
 
 20. Therefore, the Revenue Act of 1870-'71, imposing a 
 tax on legacies, &c, is not unconstitutional, yet it cannot be 
 retrospective in its character. Ibid. 
 
 21. In selling lands for taxes, the sheriff acts under a 
 statutory power which must be strictly pursued, and he must 
 cot only do the acts which are required to bring his sale with- 
 in the power, but he must do them within the time prescribed. 
 Taylor v. Allen, 07 X. 0. R. 34G. 
 
 22. The sheriff's power to sell land for taxes being given 
 on the condition that it be exercised within a certain time, 
 the Legislature cannot, by a private act, give him power to 
 sell after the expiration of the time allowed by law. Ibid. 
 
 23. If a sheriff fails to return lands sold for taxes accord- 
 ing to the requirements of the statute, Rev. Code, chap. 19, 
 sec. 21, the sale is imperfect, and cannot be perfected by his 
 •afterwards doing the act. Hid. 
 
 21. A sheriff who sells lands for taxes, and goes out of 
 office before he makes a deed, cannot afterwards make such 
 a deed. Ibid. 
 
 25. The mortgagee, being the legal owner of the land 
 mortgaged, is the person to whom notice must be given by 
 the sheriff of a levv and sale of such land for unpaid taxes. 
 Whitehurst v. Gas'dll, 09 X. C. R. 419. 
 
 20. The Act of 1808-'09, ch. 108, sec. 32, which declares 
 that " every non-resident who shall sell any spirituous liquors, 
 by sample or otherwise, whether delivered or to be delivered, 
 shall pay an annual tax of fifty dollars, and a tax of like 
 amount as is payable by residents on their purchases or sales, 
 as the case may be, of similar articles" is an act of the State 
 imposing a discriminating tax upon non-resident traders trad- 
 ing in the State, and is repugnant to the Constitution of the 
 United States and void. Sinclair, Owens & Brown v. State 
 of North Carolina, 09 X. C E. 47. 
 
 27. Money deposited in banks loses its distinct character 
 as money, and becomes a debt due to the depositor from the 
 bank, and as such, is a proper subject for taxation. Lilly v. 
 Commissioners of Cumberland, 09 X. C. U. 300. 
 
 28. Solvent credits are property, and like other property 
 are liable to taxation under our revenue law. Xor does it 
 make any difference if such credits were derived from the 
 trade of a merchant in the usual course of a business also 
 taxed. Ibid. 
 
 29. lhe State, until forbidden by Congress, has the pow- 
 <•: to tax National bank bills. Ibid. 
 
 30. Where money is placed in a bank on deposit, in the 
 
 30 
 
406 TAXES AND TAXATION— TENANTS, &0. 
 
 usual course of business, it is a general deposit, and the depos- 
 itor has no right to the particular mouey deposited, as he has 
 in the case of & special deposit: Therefore, held, to be error iu 
 the Judge below, to charge that money so deposited, remain- 
 ed the money of the depositor. Baffin v. CmnnCrs of Or- 
 ange, 09 N. (J R. 498. 
 
 31. United States Treasury notes, being one of the means 
 used for the support and administration of the general gov- 
 ernment, cannot be taxed by a State. Nor can Congress for 
 the same reason, tax any of the necessary means used to ad- 
 minister the goverment of any of the States. Ioid. 
 
 32. The power of a State to tax the circulation of the 
 National Banks, depends upou whether such circulation is 
 for the use of the United States Government or for private 
 profit. Congress can protect the circulation of those banks 
 by forbidding the States to tax it; until this is done, the 
 States have the right to tax it. Ibid. 
 
 33. The provision of sec. 7, Article Y. of our State Con- 
 stitution, restraining County Commissioners from levying a 
 tax more than double the amount of the State tax, does not 
 apply to taxes levied to pay debts against the county, exis- 
 ting at, or before the adoption of the Constitution. Haagli- 
 ton v. Comm'rs of Jones, 70 N. 0. R. 400. 
 
 34. The equation of taxation provided for in Art. Y, sec. 
 1, does not apply to taxes to pay a public debt existing at 
 the adoption ol the Constitution, or for special county purpo- 
 ses: nor does sec. 7. of the same article, forbidding counties 
 to levy more than double of the State tax, apply to such 
 debts. Street v. Comma's of Craven, 70 N. C. It. 044, 
 
 35. There is nothing in the Constitution of the State, 
 which prohibits the Commissioners of a county from taxing, 
 polls to pay a county debt incurred before 1808; and there is 
 nothing in that instrument, fixing a maximum of taxation 
 for such purpose. Brothers v. Comm'rs of Currituck, 70 
 N. C. 11. 720. 
 
 See (Constitution, 1, 2, 9, 10, 11, 13, 22, 33, 24, 25, 33, 34,, 
 35, 30, 37, 38, 39, 40, 47, 48, 49, 50, 51, 52, 53, 54, 55, 50 ? , 
 57, 58.) (Evidence — Its relevancy or irrelevancy, 8.) (Evi- 
 dence — Public Documents.) (Towns and Cities, 8.) (Town- 
 ships, 2.) 
 
 TENANTS IN COMMON. 
 In action where the complaint stated a bailment of a. 
 
TENANTS IX COMMOX— TENDER, &c. 407 
 
 certain quantity of corn and fodder to the defendant, with a 
 refusal by the latter to deliver it, and asked judgment for 
 such goods (or their value) and for damages, and the issue 
 was upon the detention, and also upon the plaintiff's title ; 
 the fact being that the plaintiff and defendant were tenants 
 in common of the articles : held, that the court could give 
 no " relief consistent with the case made by the complaint, 
 and embraced within the issue." Powell v. Hill, 04 N. C. E. 
 109. 
 
 2. A tenant in common cannot maintain an action against 
 a co-tenant to recover specific goods, upon a refusal by the 
 latter to deliver possession thereof: his remedy is partition. 
 1 bid, 
 
 3. AY he re a tenant in common of laud had been in the 
 sole reception of the profits for move than seven years, yet, 
 without evidence to the contrary, it will be presumed that 
 his original entry was permissive, and under an assertion of 
 his own claim, and that of his co-tenant, and no subsequent 
 claim could make his possession adverse, without proof of 
 actual ouster. 07 N. 0. R. 150. 
 
 4. Where A enters into an agreement with B to save 
 from a wrecked vessel as much of the cargo as could be 
 saved, and B agrees to allow him, A, for his services, such a 
 per cent, of the property saved, as compensation ; and in 
 pursuance of such agreement, A recovers from the wreck a 
 portion of the cargo, and lauds it on the beach, in a place of 
 safety: held, That A and B are tenants in common of the 
 property so saved, and that the undivided share of A is liable 
 to be seized by the sheriff under a warrant of attachment. 
 Boylston Ins. Co. v. Davis, 08 N. O. R. 17. 
 
 5. Where a tenant in common has improved a part of 
 the common land he is entitled, upon the partition of the 
 land, to have the part so improved, allotted to him at the 
 original valuation. Pope v. Whitehead, 08 N. C R. 191. 
 
 See (Widow— Of her Dower, 33.) 
 
 TENDER AND REFUSAL. 
 
 1. There is a difference between the plea of tinder in ac- 
 tions for money, and the like plea in actions for the non -de- 
 livery of specific articles: in the latter case no averment of 
 continued readiness, or of profert, is necessary, — because, by 
 the tender the ankles became the property of the party to 
 
468 TENDER AND EEFUSAL. 
 
 whom it was made, and if subsequently they be converted by 
 him who made it, he is responsible for their value when con- 
 verted. Patton v. Hunt, 64 N. 0. K. 163. 
 
 2. In case of tender of specific articles, under a contract 
 to deliver them, they must be separated from others of the 
 same sort, so as to be capable of identification, as upon a sale. 
 Ibid. 
 
 3. When a debtor tenders money in payment of his debt 
 to the creditor, who says he has no use for it, and thereupon 
 the debtor concludes to retain the money a while longer, and 
 does so, he thereby waives the tender. Terrell v. Walker, 
 i5o N. 0. li. 1)1. 
 
 4. To make a tender effectual, the debtor must be ready, 
 willing and able to pay, and must so inform his creditor, and 
 must also produce the money, unless such production be 
 waived by the absolute refusal by the creditor to receive it. 
 I hid. 
 
 5. A note given for money borrowed during the late war 
 was, by force of the acts of 1866, chapters 38 and 31), and 
 the act, 1865, presumptively payable in Confederate money 
 in the absence of any evidence to rebut it, yet the acts did 
 not so far interfere with the contract as to change it into one 
 for the delivery of specific articles ; it is still to be treated as 
 a money contract, solvable in money, and not in specific 
 goods. 1 bid. 
 
 6. A tender of Confederate treasury notes in payment of 
 a debt solvable in such notes, will not, upon the refusal to 
 receive them, vest in the creditor the property in any certain 
 Confederate notes, so that, by virtue of such ownership, he 
 will become liable to their depreciation. But such tender 
 will prevent the recoverv of the interest after that time. 
 Ibid. 
 
 7. If a creditor cause his debtor to desist from making a 
 tender in payment of a note at a particular time in the Con- 
 federate currency in which it was then solvable, by a promise 
 that he will receive it at a future time, and then refuses to re- 
 ceive it, it will not be such a fraud (if a fraud at all) for which 
 damages would be allowed to defeat the action on the note, 
 or be used as a set-off or recoupment. Ibid. 
 
 8. A plea of tender is of no avail unless it is accompanied 
 by a payment into Court of the amount admitted to be due. 
 Jenldns v. Briggs, 65 N. C. R. 159. 
 
 9. The maker of a note due a bank has the right to ten- 
 der in payment of such note, as equivalent to gold and silver 
 coin, the bills issued bv the bank. Blount, (JomnVr, <fc., \. 
 Windley, 68 N. C. E. 1. 
 
TENDER, &c— TOWNS AND CITIES. 4G9 
 
 10. The maker of a note payable on demand, may at any 
 time before the demand, make a tender, which will have the 
 same effect, as if the note was payable on a certain day, and 
 the tender was made on that day. Wooten, Adrn'r, v. Sher- 
 rard, et al, OS N. 0. II. 334. 
 
 11. The Courts of this State have habitually treated notes 
 payable in Confederate money, as having all the attributes of 
 promissory notes, and a tender of the like money in payment 
 of such the payee refused to receive, will not bar tl e debt. 
 Ibid. 
 
 12. A promissory note payable in Confederate currency 
 in 1803, is a contract to pay money, and not a contract to de- 
 liver specific articles : hence, a tender of the money at the day 
 does not satisfy the debt, but only stops the interest. Bank 
 of Charlotte v. Davidson, 70 N. 0. R. 118. 
 
 13. In an action upon such note, where the money ten- 
 dered had been refused: it was held, that although the de- 
 fendant need not bring into Court the Confederate money, 
 now worthless, he should have accompanied his plea by a 
 payment into Court of the statutory equivalent for such Con- 
 federate money: held further, that the plaintiff was entitled 
 to interest from the date of the service of his summons. II) id. 
 
 TOWNS AND CITIES. 
 
 1. The legislature cannot confer on the Mayor of a town 
 the judicial powers of a Justice of the Peace in civil actions. 
 Article 4, sec. 33, confers exclusive original jurisdiction on 
 Justices of the Peace, wherever the sum demanded does not 
 exceed two hundred dollars. Town of Edenton v. Wool, 05 
 N. C R. 37!). 
 
 2. The State Constitution requires that Justices of the 
 Peace shall be elected by townships, whilst Mayors are elec- 
 ted by towns and cities. Ibid. 
 
 3. The owner of land in an incorporated town, may law- 
 fully remove a house from one part of his land to another, 
 notwithstanding that, on petition tiled for the purpose, the 
 town authorities have ordered the laying out of a street on 
 that portion of the land to which the house was removed, the 
 street not having been actually laid off and located prior to 
 such removal, and the owner of the land not having notice 
 of the petition. Slate v. Whitaker, 00 N. C. It. 030. 
 
 4. Whether, in such case, land can be taken without just 
 
470 TOWNS AND CITIES. 
 
 compensation, quere, but it certainly cannot be taken to sub- 
 serve private interests, as when an inhabitant seeks to cause 
 a street to be located on the land of another, because it will 
 facilitate such applicant in the erection of a store to be used 
 for his private benefit. Ibid 
 
 5. A city or town can levy a tax upon such subjects only 
 as are specified in its charter; therefore the city of Ealeigh 
 cannot levy a tax upon the money or credits of its citizens, 
 as they are not mentioned in its charter as the subjects of 
 taxation. Fallen, et ah, v. Board of Commissioners of the 
 City of Raleigh, 68 N. 0. R. 451. 
 
 6. The corporate powers of cities and towns are emana- 
 tions from the State, granted for purposes of convenience, and 
 they are not allowed, in the exercise of those powers, to con- 
 travene the policy of the State, or exceed the powers con- 
 ferred, and much less those which are either expressly or 
 impliedly prohibited. Weith & Arent v. City of Wilmington, 
 68 K 0. li. 24. 
 
 7. Therefore, where the city of W, in 1862, borrowed 
 money from A and gave him a bond, which money was used 
 indirectly in aid of the rebellion, and A, before the bond be- 
 came due, transferred it to B without notice as to its consid- 
 eration, and the city, in 1867, by virtue of an act of Assem- 
 bly, took up the bond and issued to B in its place other 
 bonds with coupons attached, who afterwards sells the cou- 
 pon bonds in open market, for a fair price, and without any 
 notice as to the illegality of the original consideration to 0. 
 In a suit by C against the city to recover the coupons on the 
 bonds purchased, from B : It was held, that could not re- 
 cover, for the reason that all bonds of a like nature had been 
 declared void by the ordinance of the Convention of 1865, 
 and the payment of the same was thereby, and by sec. 13, 
 art. 7 of the Constitution, prohibited, and as being against 
 public policy. Ibid. 
 
 8. It seems that the w r ord "property" is used by the 
 Constitution in a sense to make it exclude " money, credits, 
 investments in bonds," &c. Art. 5, sec. 3. Ibid. 
 
 9 Section 26 of the charter of the town of Salisbury, 
 enacting that the board of commissioners "shall have power 
 to acquire by purchase any piece or pieces of land as pub- 
 lic squares for said town, and also to acquire any pieces by 
 purchase or lease as sites for markets or other buildings for 
 the use of said town," confers upon the commissioners full 
 power to acquire, regulate and dispose of a town hall, public 
 squares, &c, in such manner as to them may seem best for 
 
TOWNS AND CITIES.— TOWNSHIPS. 471 
 
 the interest of the town. Shaver v. Com'rs of Salisbury, 08 
 N. C. E. 291. 
 
 10. The act of 1791, cb. 31, sec. 1, empowering the Com- 
 missioners of the city of Newbern to levy taxes, among 
 other specific purposes, ''for such other good purposes as the 
 said Commissioners may judge necessary," and the act of 
 the special session of 186G, chap. 4, sec. 3, empowering the 
 Mayor and Council of said City " by all needful ordinances, 
 rules and regulations, to secure order, health and quiet 
 within the same, and for one mile around," confer on the 
 municipal authorities sufficient power to repair aud build 
 guard houses or jails. McLin v. Newbern, 70 N. C. E. 12. 
 
 11. The Board of Commissioners of the town of Newbern, 
 under the act of their incorporation, aud the acts ameuda- 
 tory thereof, have the power to build and repair a market 
 bouse. Smith v. Newbern, 70 N. C. E. 14. 
 
 12. The commissioners of a town, authorized to subscribe 
 to the capital stock of a corporation, upon its being so voted 
 by a ''majority of the voters of said town qualified to vote 
 for commissioners," are justified in subscribing the amount 
 voted, if a majority of the votes cast at the election held for 
 that purpose be in favor of such subscription, although a 
 majority of all the voters of the town did not vote. JReiger 
 v. Comm'rs of Beaufort, 70 N. C E. 319. 
 
 13. A plaintiff, whose land has been taken by the com- 
 missioners of a town for public use, waives all irregularities 
 in the proceedings condemning such laud, when he appeals 
 from the assessment of damages by the persons appointed to 
 assess them. Johnston v. Rankin, 70 N. C. E. 550. 
 
 14. Such appeal from the assessment of damages, carries 
 up no other question than the amount of the compensation 
 which the plaintiff may be entitled to ; and the commission- 
 ers are not guilty of a trespass of a proceeding with their 
 improvements pending the appeal. Ibid. 
 
 See (Constitution, 07, 09, 70, 71.) 
 
 TOWNSHIPS. 
 
 1. Where an act of the General Assembly authorized the 
 election in townships containing cities and towns, ot a larger 
 number of Justices than two, (Const., Art. VII, sec. 5,) all 
 such Justices are members of the Township Board of Trus- 
 tees. Conohj v. Harriss, 04 N. C. E. 662. 
 
472 TOWNSHIP TEUSTEES.— TRESPASS. 
 
 2. Under the Constitution and Act of 1868-'69, ch. 165 ; , 
 townships have not the power of taxation for school pur- 
 poses, either through their trustees or committees. Nor 
 have the commissioners of a county the power to levy a 
 township tax, as distinguished from the general county tax r 
 for school purposes. And in laying the county tax for school 
 purposes, the equation of taxation must be observed. Lane 
 v. Stanley, 65 N. 0. E. 153. 
 
 TOWNSHIP TRUSTEES. 
 
 Township Trustees have no authority to contract for build- 
 ing bridges ; when such a contract is entered into without 
 the sanction and supervision of the County Commissioneis ? , 
 it is a nullity. Paine v. Caldwell, 65 N. C. E. 488. 
 
 See (Evidence — Records of court and records and by laws 
 of corporations, 5.) 
 
 TRESPASS. 
 
 1. Where a ditch formed the boundary between the lands 
 of the plaintiff and those ot A B, and an obstruction had been 
 placed therein by the plaintiff' with the consent of A B, in or- 
 der to prevent sand from being carried down and choking a 
 ditch of his own : held, that trespass was not the proper form 
 of action to redress an injury (the choking of the plaintiff's 
 ditch) caused by the defendant's removing so much of such 
 obstruction as was upon A B's half of the boundary ditch — 
 the latter having consented to such removal. Ilogwood v. 
 Edwards, Phil. L. E. 350. 
 
 2. Two neighbors having agreed to build a rail fence up- 
 on the boundary between them, it was also agreed that the 
 eastern half of it should be built by the plaintiff and the west- 
 ern by the defendant. In building his part the defendant, 
 inadvertently, or to get a better location, placed it altogether 
 upon the plaintiff's laud : held, that he was not liable to the 
 plaintiff in an action of trespass quare clausum free/it, for sub- 
 sequently removing his part of such fence. Whi f field v. 
 Bodenliammer, Phil. L. E. 3G2. 
 
 3. Held also, that neither the agreement between the par- 
 ties about the building of the fence, nor a subsequent notice • 
 
TRESPASS.— TROVER. 473 
 
 given by the defendant to the plaintiff of bis intention to re- 
 move it, were (under the circumstances) evidence of license 
 of a removal by the plaintiff. llnd. 
 
 4. An officer having two executions against the plaintiff 
 and his father, and another execution against the father 
 alone, levied on three horses belonging to the plaintiff, as the 
 property of the father; the plaintiff offered to pay off the 
 executions against himself, but the officer refused to receive 
 the money, and proceeded to sell the horses : held, that the 
 officer became a trespasser ah initio, aud was liable in an ac- 
 tion of trespass, for the value of the two horses last sold. 
 Parish v. Wilhelm, 03 N. C. R. 50. 
 
 5. A person is not justified in killing the hog of another 
 because it has repeatedly broken through his fences, and 
 when killed was within his enclosed premises, into which it 
 had broken immediately before on being driven out of his 
 corn field. Bust v. Mingues, (54 N. (XR. 44. 
 
 6. The plaintiff owned an ass, which he knew to be dan- 
 gerous, and in the habit of pursuing and injuring stock, and 
 with a knowledge of such vicious qualities, he permitted him 
 to run at large : held, that if such an animal is found pursu- 
 ing a cow which he threw down and was in the act of stamp- 
 ing her, wheu the defendant, believing it was necessary to 
 kill him to save the life of his cow, killed the ass, that de- 
 fendant was justifiable. Williams v. Dixon, 05 JST. 0. R. 417. 
 
 See (Abatement — By the death of parties, 2.) 
 
 TROVER. 
 
 1. Possession of a chattel by one who holds for himself in 
 respect to either a general or a special property, will support 
 replevin or trover; such possession for another will not sup- 
 port an action ; therefore, where the plaintiff took possession 
 of a steamboat which had been sold to him by a sheriff, with 
 the understanding that if the sale was not valid he should be 
 baillee for the sheriff': held, that he had title sufficient to 
 maintain replevin. Scott v. Elliott, Phil. L. R. 104. 
 
 2. Where two persons claimed a mule adversely to each 
 other, held that the fact that the defendant prevailed upon the 
 plaintiff to give it into his possession by making an affidavit 
 that it was his, and then put it at work, did not constitute a 
 conversion: also, that when, a few days afterwards, the plain- 
 tiff went to the defendant and insisted upon the mule being 
 
474 TROVER.— TRUSTS AND TRUSTEES. 
 
 delivered back, and it was agreed between the parties that 
 they should meet on a day fixed and settle the question, the 
 plaintiff could not, without a demand, bring an action of trover 
 for the mule before such day. Whether he could have done so 
 after a demand quaere. Finch v. Clarke, Phil. L. R. 335. 
 
 3. Where the owner of a slave hired her out tor the year 
 1S05 for a share of the crop, and such share was delivered to 
 him : held, that no question as to the rights of the slave to 
 she product of her labor after emancipation, could be raised 
 in defence to an action of trover brought by the owner against 
 persons who, claiming under a sale from the slave, converted 
 the share so set apart. Chandler v. Holland, Phil. L. R. 598. 
 
 TRUSTS AND TRUSTEES. 
 
 1. Where a creditor has exhausted legal remedies with- 
 out avail, he may have the assistance of equity in subjecting 
 to his claim the trust funds of his debtor — as here, an interest 
 in an estate in the hands of an administrator. Bennick v. 
 Bennich, Phil. Eq. R. 45. 
 
 2. Where a trustee, holding land as security for a credi- 
 tor residing in Pennsylvania, had been compelled by a decree 
 in a Confederate Court to sell and pay the proceeds to one 
 •of its officers : held, that such creditor could still subject the 
 land to his debt, whilst in the hands of a purchaser with no- 
 tice. Ward v. Brandt, Phil Eq. R. 71. 
 
 3. Also, that the remedy in such case is not to order the 
 deed to the purchaser to be delivered up for cancellation, but 
 to declare such purchaser affected by the trust. 1 bid. 
 
 4. The prayer of the bill being for a cancellation of the 
 deed and for general relief, the court, declining to grant the 
 former part of the prayer, under the latter declared the pur- 
 chaser to be a trustee. Ibid. 
 
 5. One in possession under a purchase of a resulting 
 trust in land, conveyed to a trustee to secure creditors or 
 sureties, does not hold adversely to the trustee and cestui 
 que trusts. Thigpen v. Price, Phil. Eq. R. 146 
 
 G. Where one of the obligors upon a bond for $102 given 
 in 1858, became insolvent in 18G1, and the other in 18G5, 
 having been in failing circumstances for two or more years 
 before, the trustee was held not to be responsible for negli- 
 gence as to collection. Donnell v. Donnell, Phil. Eq. R. 148. 
 
 7. Upon taking an account between a cestui que trust and 
 
TRUSTS AND TRUSTEES. 475 
 
 trustee : held, that the former could uot in 1S6G raise any 
 question as to the value ot Confederate Treasury notes re- 
 ceived by him, being sui juris, without objection in 1803, 
 1864 and 18G5. Ibid. 
 
 8. Where both principal and surety upon a bond given in 
 1857 for $2,500, were then and still solvent, and there was 
 no necessity for its collection, the trustee was held responsi- 
 ble for collecting it in February 1803 in Confederate notes 
 and individual notes made after 1861. Ibid. 
 
 9. The trustee was responsible for collecting more of the 
 interest upon the bonds in his hands than was necessary for 
 the maintenance and support of his cestui que trust. Ibid. 
 
 10. A bill had been filed by a creditor not secured in a 
 deed-iu-trust, to subject the surplus of the property so con- 
 veyed to the payment of his debt, and under an order in the 
 cause the clerk had reported that such property was amply 
 sufficient to pay all the debts, including that of the plaintiff: 
 held, that a decree that the trustee should pay to the plaintiff 
 his debt, was erroneous; and that the proper decree would 
 have been that the trustee should sell enough of the property 
 to satisfy the judgment. Bobbitt v. Brownlow, Phil. Eq. R. 
 252. 
 
 11. By Pearson, C. J., arguendo. If the report had stated 
 that the trustee had on hand cash " amply sufficient," &c, a 
 decree against the trustee individually would have been 
 proper. Ibid. 
 
 12. Also, If the plaintiff had been secured in the deed-iu- 
 trust the decree might have been correct. Ibid. 
 
 13. In a contest between a trustee, under a deed made 
 by the holder of a note, and a creditor, by attachment and 
 garnishment of the maker, the lien ot the former begins from 
 the time at which the deed is delivered to the Register, and 
 that of the latter from the time when the summons is per- 
 sonalltf served upon the maker. Parker v. Scott, 04 N. C. R. 
 118. 
 
 14. Therefore, where the deed was delivered to the Reg- 
 ister at 10 o'clock, A. M., Dec. 20th 1800, and actually reg- 
 istered January 28th 1<S(»7 ; and the summons for the garni- 
 shee was ieftat his residence at 8 o'clock, A. M., Dec 20th 
 1800, but not actually received by him until the evening of 
 that dav: Held, that the lien under the deed had priority. 
 Ibid. 
 
 15. A deed-in-trust to pay debts, which reserves to the 
 grantor's wife dower in the land conveyed is, so far, inopera- 
 live, but the invalidity of such reservation does not avoid the 
 deed. Carter v. Cocke, G4 N. C. R. 239. 
 
47(5 TEUSTS AND TRUSTEES. 
 
 16. Where such deed set forth that the grantor had a life 
 estate in a certain fund of $8,500, which, upon his death, 
 would go to his issue, and that he had made use of such fuud, 
 and therefore provided that the trustee should pay the $8,500 
 immediately to such issue, [making no abatement for the life 
 estate] Held, that as the deed furnished the means for cor- 
 recting the mistake into which the grantor had fallen, the 
 provision, in effect, amounted to no more than that the trus- 
 tee should pay to such issue, the value of their reversionary 
 claim. Ibid. 
 
 17. Nor is a provision for satisfying a creditor in case 
 he should pay ''liberally" for certain property, invalid, in a 
 case where the fund applicable to the grantor's debts is, in 
 proportion, small, and such liberal bidding will turn to the 
 benefit of the fund, and not of the grantor ; therefore, where, 
 in such a case, the deed provided in the first place for the 
 payment of two specified debts by a sale of property to the 
 highest bidder for cash, and afterwards, (having referred to 
 a third debt as one he wished to pay,) directed that the trus- 
 tee " instead of selling the said mouutain lands as hereinbe- 
 fore provided, is hereby fully authorized and empowered to 
 adjust said debt, provided a portion of said mountain lands 
 would be taken at liberal prices in full satisfaction of the 
 same :" held, that the provision was valid. Ibid. 
 
 18. In all cases where there is a transmutation of posses- 
 sion under a deed, and, by any means other than a declara- 
 tion of an express trust in writing, the trust estate becomes 
 disjoined from the legal estate, parol evidence of the acts, 
 dealings and declarations of the parties, becomes competent, 
 to ascertain the nature and limits of such trust. Ferguson 
 v. Haas, 04 N. O. E. 772. 
 
 19. Where A made a deed for land, without considera- 
 tion, to his brother, B, and the latter, afterwards, under a 
 parol agreement with A, bought the same land, when sold 
 under executions against A, and both continued to live to- 
 gether upon such land for several years, and until their 
 deaths ; upon a controversy arising between their respective 
 heirs, in regard to the title : held, that the facts in regard to 
 the manner in which the money that was paid at the sheriff's 
 sale was raised, and the terms upon which A and B lived to- 
 gether upon the land, as well as the declarations and admis- 
 sions of B as to the rights of A in the land, were competent 
 evidence to establish a trust in said land in favor of A. 
 Ibid. 
 
 20. An administrator who procures the sale of the land 
 
TRUSTS AND TRUSTEES 477 
 
 of his intestate for the payment of debts, and has himself ap- 
 pointed commissions to make the sale, is subject to the rule 
 whicb prohibits a trustee from purchasing the land, either 
 personally or by an agent. Roberts v. Roberts, 65 N. 0. R 27. 
 
 21. A trustee can purchase at his own sale only when he 
 does so without fraud, and with the consent of the cestui que 
 trust, at the time, or by his subsequent sanction. Ibid. 
 
 22. A vendor, who' has contracted to sell his laud, is in 
 equity a trustee for the purchaser, but if he has not received 
 the whole of the purchase money, he is not a mere naked trus- 
 tee, and upon becoming a bankrupt, his interest in the land 
 will, by proper assignments, pass to the assignee in bank- 
 ruptcy under the 14th section of the bankrupt act. Swepson 
 v. Rouse, 05 N. 0. R. 34. 
 
 23. The distinction between actions in law and suits in 
 equity, as to the forms of procedure has been abolished in 
 this State, but the distinction between legal and equitable 
 rights still remains. Matthews v. McPherson, 05 N. 0. li. 189. 
 
 24. The rights of a cestui que trust under the old system 
 were administered in a Court of Equity. In trusts relating 
 to real property where the purposes of the trust were com- 
 pleted, and the trustee bad been paid his reasonable charges 
 and expenses, the cestui que trust could compel a conveyance 
 of the legal estate. Until a cestui que trust has acquired such 
 a perfect equitable title, he cannot, under the 0. 0. P., main- 
 tain a civil action to recover possession of real estate held by 
 a person under the legal title. Ibid. 
 
 25. Where a husband purchased and paid for a lot of laud, 
 and procured the vendor to convey it by a deed of bargaiu and 
 sale to a trustee in trust for the sole and separate use of the 
 wife, "to dispose of to any person she may wish by deed or 
 appointment in writing in the nature of a will," and she having 
 died without disposing of the laud by deed or will, it was held, 
 that as the trust was not declared for her and her heirs, there 
 was a contingent resulting trust in favor of her husband, 
 which upon his death intestate before his wife had descended 
 to his heir-at-law. Levy v. Grijfis, 65 N. 0. 11. 230. 
 
 20. A devise to a trustee in trust for the sole and separate 
 use of a married woman with a power given to her of appoint- 
 ing the estate in fee by deed or will, will vest the trust in her 
 in fee under the Rev. Code, chap. 1 10, sec 20, and it will not 
 be inconsistent with the power of appointment, because with- 
 out such power she could not dispose of real estate by will 
 while she remained a married woman. Ihid 
 
 il. The distinction between executory and executed trusts, 
 
478 TEUSTS AND TEUSTEES. 
 
 and the doctrine of powers of appointment given to any per- 
 son, and particularly to be a married woman, discussed and 
 explained. Ibid. 
 
 28. When a debtor executed a deed conveying a tract of 
 land in trust to pay specified debts, and it was provided in 
 the deed in which no money consideration was recited, that 
 if the debts were not paid on or before a particular day, the 
 trustee should sell the land and " pay off and discharge all 
 costs aud charges for the drawing and execution of this 
 trust," and, the debts not having been paid, the trustee did 
 sell the laud aud pay them out of the proceeds : It was held, 
 that the deed in trust not being upon a valuable considera- 
 tion, there was a resulting use for the grantor; subject, how- 
 ever, to a scintilla juris iu the trustee sufficient to feed the 
 contingent use that might be created by an exercise of the 
 power of sale, and that when the sale was made, and the 
 purchase money was received by the trustee and paid to the 
 creditors mentioned in the trust, the purchaser acquired a 
 good title against the grantor and his other creditors. Ilogan 
 v. Strayhorn, Go N. 0- E. 270. 
 
 29. Under the act of 1715, (Eev. Code, ch. 37, sec. 1) the 
 want of a valuable consideration will not prevent a deed for 
 land, registered in the county where the land lies, from pass- 
 ing the title thereto. Ibid. 
 
 30. The act of 1861, ch. 4, sec. 4, which provides " that 
 all deeds of trust and mortgages hereafter made, &c, to se- 
 cure debts, shall be void as to creditors, unless it is expressly 
 declared therein that the proceeds of sale thereunder shall 
 be appropriated to the payment of all the debts and liabili- 
 ties of the trustor or mortgagor equally j )ro rata" was con- 
 fined to pre-existing debts, and did not apply to a transac- 
 tion when there was no debt save that which grew out of the 
 transaction itself, and formed a material part of it. McKay 
 Gilliam, G5KC.K. 130. 
 
 31. If a person lend money, and to secure the payment 
 take a mortgage instead of personal security as a part of the 
 transaction, it is a valuable consideration under the statute 
 of 27th Elizabeth, as against prior donees, and he stands on 
 the footing of a purchaser tor a valuable consideration ; but, 
 if he have a pre existing debt only and take a mortgage or a 
 deed in trust to secure his debt, although it was valid under 
 the 13th Elizabeth as against other creditors, it is not valid 
 as against prior donees. Ibid. 
 
 32. Where a deed of trust is made to secure certain spec- 
 ified debts, one of which is tainted with usuiy, and a pur- 
 
TRUSTS AND TRUSTEES. 47& 
 
 chaser buys at a trustee's sale for valuable consideration, and 
 without notice of the illegality of the consideration ot the 
 said debt : held, that his title is not affected thereby. Mc- 
 Neill v. Riddle, GG N. 0. R. 290. 
 
 33. If a deed contains a declaration of trust in favor of 
 several creditors, and one of the debts secured, is feigned or 
 ursurious, and there be no combination between the credi- 
 tors, to whom the true debts are due, and the grantor or per- 
 son for whose benefit the feigned debt is inserted, there can 
 be no reason why the declaration of trust in favor of the true 
 debts may not stand, and the feigned debt be treated as a 
 nullity. Ibid. 
 
 34. A trustee in the execution of his trust, is bound to- 
 carry out honestly and faithfully the purposes contemplated 
 by the grantor, to keep an account of receipts, disbursements,. 
 &c, and be ready to produce his accounts, when required by 
 the parties interested in the estate. Martin v. Wilbourne, 
 GG N. 0. R. 321. 
 
 35. Where the facts connected with the management of a 
 trust estate, are in dispute, and the rights of the parties can- 
 not be readily ascertained without an account, in such case 
 the rule adopted by Courts of Equity, is a reference to the 
 Master, and if there is dissatisfaction with the report, the 
 matter may be brought before the court by proper exceptions*. 
 11 id. 
 
 3G. When the legal estate in land is not conveyed, a trust 
 cannot be raised by parol, even founded on a valuable con- 
 sideration, and though followed by actual occupancy and the 
 erection of valuable improvements. Frey v. Ramsour, GG» 
 N. C. R. 4GG. 
 
 37. The widow cannot, as purchaser of land from the as- 
 signee of her husband, a bankrupt, set up title against the 
 purchaser under a deed in trust executed by her husband 
 several years prior to his bankruptcy. Williams v. Munroe r 
 07 K C R. 1G4. 
 
 38. The negligence and unfaithfulness of the trustee in a. 
 dced-in-trust, in which both personal and real property were 
 conveyed, in not selling the personal first, as required in the 
 said deed, cannot be made a question between the purchaser 
 of the land under the deed in trust, and those who succeed 
 to the rights of the bargainor in such deed. Their remedy, 
 if they have any, must be pursued against the trustee. Ibid* 
 
 •'{!). The widow of a bargainor, in a deed in trust, executed 
 in 1859, who was married before the execution of such deed- 
 in-trust cannot claim dower against the purchaser under such 
 deed. 1 bid. 
 
480 TRUSTS AND TRUSTEES. 
 
 40. Where a testatrix bequeathed a share of her estate 
 to her executor, " In trust that he shall put the amount of 
 said share at interest on good security, and pay the annual 
 interest to my son for the use of his family," &c., and the 
 executor assumed the trust and invested the funds as directed 
 by the will, collecting and paying the annual interest until 
 1862, when, without any necessity lor it, and with a view 
 simply to surrender the trust, which was not done, he col- 
 lected the amount due and invested it in Confederate bonds, 
 which were lost : held, that the executor was chargeable with 
 the trust fund, and the annual interest arising thereon. Jur- 
 ney v. Coivan, 67 N. 0- E. 303. 
 
 41. Where one acquires the legal title to land, by means 
 of an undertaking with the party entitled to the equitable 
 estate, that he will hold the estate subject to the equity ; a 
 refusal to carry out the undertaking is a breach of confidence, 
 and on that ground the party is converted into a trustee. 
 Blount v. Carroivay, 67 N- 0. R 396. 
 
 42. Therefore, where a power of sale was given by a 
 mortgagor to the mortgagee, in consideration of which the 
 mortgagee agreed to convey a portion of the laud embraced 
 in the deed, to a trustee, for the benefit of the mortgagor's 
 wife : It was held, that this contract did not come within the 
 provisions of a statute of frauds, and that the mortgagee 
 should be held a trustee, and bound to convey, according to 
 agreement. In such cases an agreement proved only by 
 parol will not suffice; there must be facts dehors. Ibid. 
 
 43. Where a party buys as agent of the mortgagee, as in 
 this case, and with notice of the agreement, he will stand in 
 the place of the mortgagee, and is effected by the same equi- 
 ties. Ibid. 
 
 44. The court below has no right to entertain a petition 
 against a trustee on the part of one entitled to the sole and 
 separate use of certain property during her natural life, and 
 then to her children, and praying to have such property de- 
 livered over to the children, and such proceeding will be dis- 
 missed as on demurrer. Walker v. Sharpe, 68 N. 0. R. 363. 
 
 45. Among other things a testator wills : "My executors 
 are fully empowered to sell the balance of my estate or any 
 part of it they may think best for the interest of my family, 
 or retain the balance after paying my just debts, should they 
 think it more to the interest and welfare of my family. I 
 desire in either case the property or proceeds shall be kept 
 together until the oldest child shall arrive at a lawful age or 
 shall many, then the whole of my estate shall be divided 
 
TEUSTS AND TRUSTEES. 48L 
 
 "between my wife and children. I desire further that my 
 wife shall have at all times sufficient funds for the mainte- 
 nance and education of my children, of principal, if the inter- 
 est should not be sufficient for that purpose:" held, that the 
 discretion as to amount of expenditure beyond the income, 
 or of the extent of the encroachment to be made upon the 
 principal, must be exercised by the executor. Hinton v. 
 Hinton, OS N. 0. R. 99. 
 
 40. The general rule is, that where a discretion is given 
 to a trustee, the Court has no jurisdiction to control its ex- 
 ercise, if the conduct of the trustee be bona fide. If, how- 
 ever, the trustee acts mala fide, or refuses to exercise the 
 discretion, the court is obliged from necessity to interfere and 
 take upon itself the discretionary power. Ibid. 
 
 47. The appointment of a trustee by a Judge of Probate, 
 in case where the former trustee has died, removed from the 
 county, or become incompetent, cannot be done on an ex 
 parte motion or petition. The application for such appoint- 
 ment is in the nature of a civil action, aud all persous inter- 
 ested must be made parties, and have full time aud oppor- 
 tunity to set up their respective claims. Guion v. Melvin, 
 69 N. 0. R. 242. 
 
 48. The removal of a trustee at the request of the cestui 
 que trust, and the appointment of some other person to sell 
 the lands conveyed in the deed, in which such trustee is ap- 
 pointed, is purely a matter of discretion for the Court below, 
 .and one which the Court should not do without good cause. 
 Ward v. Dortch, 09 N. C. R. 277. 
 
 49. A purchase by a man in his own name with funds in 
 his hands of a fiduciary nature, creates a resulting trust in 
 favor of those whose money is employed in the purchase : 
 therefore, where land has been purchased with partnership 
 funds, although it be conveyed to one partner only, yet it be- 
 comes partnership property. King v. Weeks, 70 N. C. R. 372. 
 
 50. Where there was an agreement between a husband 
 and wife that if the wife would join him in a conveyance of 
 a certain tract of land descended to the wife from her father, 
 she should have another tract in lieu of the oue so conveyed : 
 held, that when the husband received the money for the land 
 conveyed as before set out, he held it upou trust for his wife, 
 and that his estate became responsible therefor; held further, 
 that the heirs at law of the wife are entitled to the land agreed 
 to be substituted for that of the wife, free from the incumbrance 
 of the husband's debts. Dula v. Young, 70 N. C. R. 450. 
 
 See (Confederate Money, 10, 11, 12.) (Deeds — Construc- 
 31 
 
482 USURY. 
 
 tion of Deeds, 6, 7, 8, 9 ) (Ejectment — Of the title neces- 
 sary to support the action, 9, 10.) (Emancipation, 15.) 
 
 USURY. 
 
 1. The plaintiff, a resident of this State, holding a note as 
 guardian, agaiust a person living in South Carolina, went to 
 the house of her debtor in 1861, to collect the money, but 
 whilst there was induced by this debtor to take a new note, 
 upon which he promised that the defendant, his brother, wln> 
 resided in North Carolina, would become surety; and it was 
 also agreed that South Carolina interest, (7 per cent ) should 
 be paid. Afterwards, in pursuance of this agreement, the 
 debtor executed a note in the ordinary form, without express 
 stipulation for interest, and the defendant also executed it as 
 surety, in this State; upon its being presented by the debtor 
 to the plaintiff, in this State, she reminded him of his agree- 
 ment as to interest, whereupon, in order to give effect to that,, 
 he prefixed to the note, ''Pleasant Valley, S. C:" Suit hav- 
 ing been brought against the surety, he pleaded Usury: 
 Held, that as the contract had been made in South Carolina,, 
 the stipulation for seven per cent, interest was not unlawful. 
 Houston v. Potts, 04 N. C. R. 33. 
 
 2. Also, that the prefixing of the words " Pleasant Valley,. 
 S. C," did not materially alter the note. Ibid. 
 
 3. In an action upon a simple contract, usury may be- 
 given in evidence under the general issue, treating the con- 
 tract as void. And though, in a suit upon an usurious bond,, 
 it is necessary to plead the statute, it is not to bar the action,, 
 but to put the court in possession of the facts whereby it is 
 shown that the contract was wholly void. Pond v. Home,. 
 (55 K. C. R. 84. 
 
 4. A bond given for money lent upon usurious interest 
 during the existence of the statute against usury, Rev. Code,, 
 ch. 114, was made void ipso facto by that statute, aud was 
 not revived when it was repealed by the act of 1866, ch. 24. 
 Pond v. Home, do N. C. R. 34. 
 
 5. Where a note tainted with usury is endorsed to a third 
 person, who purchases it for value, and without notice of any 
 illegality attending the execution thereof, and the maker 
 gave to the payee a mortgage to secure the payment of said 
 note: Held, that the deleuce of usury could not avail the? 
 maker, and that the mortgage given to secure the payment 
 
VAGRANCY. 483 
 
 of the principal and interest due thereon could be enforced. 
 Coorv.Spicer, 65 £T 0. E. 401. 
 
 See (Pleading — Bill of discovery, 1.) (Pleading — Bill to 
 perpetuate testimony, 1.) (Trusts and Trustees, 32, 33.) 
 
 VAGRANCY. 
 
 1. In the act of 18GG, ch. 42, (Bat Rev. ch. 32, sec 13!),) 
 which prescribes "that if any person who may be able to la- 
 bor, has no apparent means of subsistence, and neglects to 
 apply himself to some honest occupation for the support of 
 himself and bis family, if he have one ; or, if any person shall 
 be found spending his time iu dissipation, or gaming, or saun- 
 tering about without employment, &c, the word " or," in the 
 beginning of the second paragraph must be construed "and." 
 State v. Ouster, 65 N. C.R. 339 
 
 2. An indictment for vagrancy, under the act of 18G6, ch. 
 42, must charge that the defendant was able to labor, and 
 that he or she neglected to apply him or herself to some hon- 
 est occupation. And in charging that he or she was endea- 
 voring to maintain hiraor herself by any undue or unlawful 
 means, it must state what the undue or unlawful means are. 
 Ibid. 
 
 3. A special verdict on an indictment for vagrancy, under 
 the act of 1866, ch. 42, which finds that the defendant " Tas 
 frequently seen sauntering about and endeavoring to maintain 
 herself by whoring," entitled her to a judgment of not guilty, 
 as the verdict finds that she was endeavoring to do something 
 wrong, and not that she did it, and the thing she was endea- 
 voring to do, was something immoral only, and not unlawful. 
 Ibid. 
 
 4. If there be two statutes relating to the same subject, 
 and the latter contains no repealing clause, and there is no 
 positive repugnancy between them, both may be in force. 
 But if there be such repugnancy, the latter will operate as a 
 repeal of the former. Hence the act of 186G, ch. 42, in rela- 
 tion to vagrancy is a repeal of the 43d section of the 34th 
 chapter of the Revised Code, which relates to the same sub- 
 ject, because the two statutes differ materially as to the pun- 
 ishment of the offence of vagrancy, the Revised Code pre- 
 scribing a fine and imprisonment and security for good be- 
 havior, while the act of 18GG, eh. 4, declares that the Court 
 may line, or imprison, or both, or sentence the party to the 
 work-house. Ibid. 
 
484 VENDOE AND PUECHASEE. 
 
 VENDOR AND PURCHASER. 
 
 1. A purchaser for value without notice, under a deed in 
 trust in which some of the debts secured are fictitious, gets 
 a good title even against the creditors of the fraudulent trus- 
 tor. McCorkle v. Earnhardt, Phil. L. E. 300. 
 
 2. An order for the specific performance of an executory 
 Contract for sale of land, when applied for by the vendor, in- 
 cludes : a reference for an account to fix the balance due for 
 principal and interest of purchase money, and a decree for a 
 sale of the land to pay such balance, unless at a day certain 
 the vendee pays into court the said amount, aud will accept 
 the deed of the vendor, or make objection to his title and ask 
 for a reference as to that. Meade v. Hamlin, Phil. Eq. E. 
 128. 
 
 3. Where, in a suit for specific performance brought by 
 ;a vendor of land, it appeared that the property was being 
 
 suffered by the vendee, who was in possession, to go to waste, 
 and had thus already become an insuffieiut security for the 
 price outstanding, and the bargainor had made reasonable 
 proposition for a rescission of the contract, and an arbitration 
 of differences : held, that it was proper to appoint a receiver 
 of the property. Ibid. 
 
 4. A vendor of laud who retains the title and allows the 
 vendee to go into possession, may at any time take posses- 
 sion, or on notice given may require those in possession to 
 to pay the rents to him, to be applied to keep down the in- 
 terest, and, if any surplus, to the discharge of the principal. 
 Hook, Skinner & Co. v. Fentress, Phil. Eq. E. 229. 
 
 5. Where the tenant of one who claimed under a bond for 
 title from A, had, by virtue of a sub-lease, become entitled 
 to certain rents which he had promised to transfer to the 
 obligee on the bond, in order to be by him applied in dis- 
 charging the debt still owing to A for the purchase money : 
 held, that a bill filed after such promise had been made, would 
 not enable A to intercept these rents and appropriate them 
 to a debt owing by the tenant to himself. Ibid. 
 
 6. A vendor of lands having delivered a deed in fee to 
 certain purchasers, who were partners, upon their executing 
 personal notes for the purchase money, a sealed instrument 
 was delivered some weeks afterwards by the purchasers to 
 the vendor, which expressed no valuable consideration, but 
 referred to the sale, and stated a wish to secure the vendor 
 the payment of the bonds, and thereupon provided that in 
 
VENDOR AND PURCHASER. 485 
 
 case of failure by the purchasers to make payment as their 
 notes fell due, the vendor " should have a lien (in and to such 
 tract) and to that extent as will save him harmless :" held, 
 that there being no valuable consideration, the paper could 
 not, in any event, be set up, either as giving a lien or as a 
 contract to give a lien. Latham v. Skinner, Phil. Eq. R. 292. 
 
 7. Also, the partnership having been subsequently dis- 
 solved, that the out-going partner, who had taken a bond 
 from his co-partners to indemnify him against the firm debts, 
 had thereafter no equity to subject the partnership funds to 
 the payment of the debt to the vendor; and therefore that 
 the vendor had none through him. Ibid. 
 
 8. Where the vendor of land lets the vendee into posses- 
 sion, reserving the title, he has no claim upon the latter for 
 rents and profits, as the interest upon the unpaid money is 
 in lieu of that. Pearsall v. Mayers, 64 N. 0. R. 549. 
 
 9. Where a feme covert tiled a complaint against the pur- 
 chasers of certain land, sold under execution as the property 
 of her husband, and the bargainee, alleging that the land was 
 bought with money arising from her separate property, and 
 the deed was by inadvertence taken in the name of her hus- 
 band ; and the said purchasers and their bargainee averred 
 in their answers that they purchased for value, and without 
 notice of her equity, aud such averments were not controvert- 
 ed : held, that she was not entitled to relief. Powell v. Jones, 
 07 N. 0. R, 12G. 
 
 10. A purchaser of land is never required to accept a 
 doubtful title. He is not required to do so, although the 
 fullest indemnity by way of general warranty may be tender- 
 ed. Batchelor v. Macon, 07 N. 0. R. 181. 
 
 11. When an action is brought by an administrator against 
 the obligors of a bond, to recover the purchase money for a 
 tract of hind, aud it appears from the pleadings that there is 
 a question as to the title of the land not " free from doubt," 
 and that the "right cannot be administered" without having 
 the heirs at law and all parties in interest before the Court, 
 the case, under the present system, will be remanded, with a 
 view of making proper parties. 1 bid. 
 
 12. The defence, of a purchaser "for value and without 
 notice," can only be made available by one who has acquired 
 the legal estate. Therefore, where land was conveyed in 
 trust, and a person purchased from the trustor his equitable 
 estate, and paid the value, thereof, and afterwards acquired 
 the legal estate without paying the value of the same: it was 
 held, that neither by the purchase of the equity of rederap- 
 
486 VENDOR AND PURCHASER. 
 
 tioD for value, nor of the legal estate without value, could he 
 be held a purchaser for value and without notice, within the 
 sense of the rule. Goldsborough v. Turner, 67 N. 0. R. 403. 
 ] 3. In an executory contract for the sale of land, the 
 payment of the purchase money constitutes the vendee the 
 owner in equity, and he has a right to a conveyance from 
 every person having the legal title with notice of his claim. 
 Wilcoxon v. Galloway, 67 N. 0. R. 463. 
 
 14. Therefore, where a person contracted to buy two 
 tracts of laud, represented iu the description to contain one 
 hundred acres, when, in fact there were only sixty-six acres, 
 and paid three-fourths of the purchase money, and the ven- 
 dor afterwards sold the same land to a third person, who had 
 notice of the previous contract, and became insolvent: It 
 was held, fhat a deficiency of one-third of the number of 
 acres was a material matter, and that the purchaser was en- 
 titled against the vendor, and those claiming under him, 
 with notice, to a conveyance and an abatement of the price. 
 I hid. 
 
 15. It is not a general rule that the abatement shall be 
 in the proportion of the deficient quantity to the quantity 
 purchased. Improvements, natural advantages, &c, are to 
 be considered. In such cases the only mode of estimating 
 the abatement is by a reference, to ascertain how much more 
 was given by reason of the supposed additional quantity. 
 Ibid. 
 
 16. A paper-writing, not under seal and unregistered, 
 which has been surrendered to tbe grantor by the alleged 
 grantee, prevents any title resting in the grantee. And such 
 paper writing, passing no title, could do no more than raise 
 an equity which the grantee had a right to surrender, unless 
 it was done to defraud creditors. Waugh v. Blevins, 68 N. 
 C. R. 167. 
 
 17. AVhen land is sold and the title is retained by the 
 vendor until the payment of the promissory notes given by 
 the vendee to secure the purchase money, and these notes 
 are assigned by the vendor with the knowledge and consent 
 of the vendee, the assignee will have a right to have the 
 notes paid out of the laud in preference to any claims which 
 may have been acquired by other persons subsequent to the 
 time when the sale was made and the notes were given. 
 Hadleij v. Nash, 69 N. 0. R. J 62. 
 
 See (Action on the case- -For deceit.) (Bond — Bond for 
 title.) (Ejectment — of the title necessary to support the 
 action. 1, 2, 3, 4.) 
 
WARRANTY. 487 
 
 WARRANTY. 
 
 1. A bill of sale in the following words : Eeceived of M. 
 & H. $ 2,000 for a negro boy named Allen, 26 years old, said 
 negro is warranted sound in mind and in body and the title 
 good : held to contain no warranty as to age. March v. 
 Phelps, Phil L. R. 500. 
 
 2. In a written bill of sale which contains no warranty of 
 title, none can be implied or proved. Sparks v. Messick, 65 
 N. C. R. 440. 
 
 3. Although there seems to be an implied warranty of 
 title in the sale of personalty, made by parol, yet no such 
 rule is applicable to sales made by executors, administrators, 
 &c. Ibid. 
 
 4. Where there is a warranty of title to personalty which 
 is broken, the vendee can take no advantage thereof to have 
 the contract rescinded, and refuse payment of the purchase 
 money, when he has kept the property lor many years, and 
 had the benefit thereof, until it is destroyed. 1 hid. 
 
 5. In an action for deceit and false warranty, after evi- 
 dence by plaintiff that he discovered the alleged unsoundness 
 (glanders) early next morning after the sale, it is competent, 
 by way of impeaching such testimony, for the defendant to 
 prove by a witness that he and plaintiff lived in a very small 
 village, [Boone] and within fifty yards of each other, and 
 that he (witness) did not hear of the alleged unsoundness 
 until some two weeks after the sale. Horton v. Green, 66 
 BT. O. B. 506. 
 
 6. Evidence, by way of dialogue, in haec verba: — Plain- 
 tiff: — " What will you take for your mule?" Defendant: — 
 " One hundred and twenty-five dollars." Plaintiff : — " I can't 
 give 8125, but if it is all sound and right I will give you 
 $100." Defendant : — " It is all sound and right, and I will 
 take $100 if you will pay the money down." Plaintiff: — "I 
 cauuot pay the money all down, but will pay $25 down and 
 give my note and security for the balance." Defendant : — 
 " I agree ; here's your mule." — Does not per se constitute a 
 warranty, but is only evidence for the jury, to be weighed by 
 them in connection with the surrounding circumstances of 
 the transaction ; and among these circumstances may be con- 
 sidered the tone, looks, gestures and the whole manner of the 
 transaction. Jbid. 
 
 7. The doctrine upon special contracts of personalty and 
 the point whether the question of warranty is to be decided 
 
488 WARRANTY.— WASTE— WIDOW— I. 
 
 by the court or left to the jury with the proper instructions^ 
 has been too long and too thoroughly settled in this State to- 
 be now overturned by decisions in other courts, and this court 
 is satisfied with the reasoning and adheres to the former de- 
 cisions. Ibid. 
 
 8. Where a father having a life estate only, makes a deed 
 in fee simple for land, with warranty ; his heir, with or with- 
 out assets, is rebutted by the warranty, except, in cases 
 where the rule of the common law is changed by statute, or 
 where the heir can connect himself with the outstanding re- 
 mainder or reversion. Southerland v. Stout, 08 N. 0. R. 44G. 
 
 9. If a person agree to purchase artitles to be delivered 
 by a certain time, and which are promised to be of a certain 
 good quality, aud after payment for the same, and after it is 
 too late to return them without prejudice to himself, he finds 
 out they are of inferior quality, he may sustain an action to 
 recover damages on account of the inferior quality of the 
 articles, although he has taken and used them. Cox v. Long, 
 69 N. 0. R. 7. 
 
 WASTE- 
 
 SemMc, That, in analogy to the case of mines already open- 
 ed, it is not waste for an occupant to continue to make brick 
 on premises used for that purpose when the occupancy com- 
 menced. Sledge v. Blum, G3 N. 0. R. 374. 
 
 WIDOW. 
 
 I. Of h3r dower. ] II. Year's provision. 
 
 I. OF HER DOWER. 
 
 1. The fact, that a widow elects to take under a will, does 
 not constitute her a purchaser as regards the legacies there- 
 in. MitcMner v. Atkinson, Phil. Eq. R 23. 
 
 2. The distinction between Dower in England, and the 
 same right in North Carolina, stated by Pearson, 0. J., 
 in reference to the above doctrine. Ibid. 
 
 3. A widow who takes under a Will in North Carolina is 
 barred of dower in the lands included in such will because of 
 lier election, and not under an idea that she has received a 
 consideration therefor. Ibid. 
 
WIDOW— I. 489 
 
 4. The act of 1784 (E, C, c. 118, s. 1;) giving widows of 
 testators six months in which to dissent from wills, is not a 
 statute conferring a right of dower, but a ' statute of limita- 
 tions ' upon that right, as it existed at common law. Bin- 
 ton v. Hinton, Phil. L. E. 410. 
 
 5. Eeal estate belonging to a partnership is subject to 
 dower in favor of a widow of one of the partners only so far 
 as a surplus may be left after paying the partnership debts. 
 Stroud v. Stroud, Phil. L. E. 525. 
 
 6. A widow is entitled for dower to a life estate in one- 
 third of the full value of any land in which her husband had 
 an equitable estate, subject to valid incumbrances thereon •> 
 and so, has a right to require that the remaining two-thirds, 
 as well as the reversion in the one-third assigned to her, shall 
 be applied to the payment of any purchase money still due 
 for said land, in exoneration of her dower ; being liable for 
 such purchase money only after these funds have been ex- 
 hausted. Caroon v. Cooper, 63 N. 0. E. 386. 
 
 7. Where the wife's right to dower in all the lands of which 
 her husband was seized during coveture, by virtue of the act 
 of March 2d, 1867, had attached before the execution of a 
 deed of trust: held, that, as the bargainor took by act of the 
 husband and claimed under him, the land was subject to the 
 wife's right of dower, even although the deed was made to 
 secure a pre-existing debt. Rose v. Rose, 63 N. 0. E. 391. 
 
 8. If the bargainor had come in by act of law, as purchaser 
 at sheriff's sale under an execution against the. husband, the 
 question of the constitutionality of the act of March 2d, 1867, 
 in regard to pre-existing debts might have been raised. Ibid. 
 
 9. The sale spoken of in the Ordinance of March 5th, 1868- 
 (c. 40, s. 2) is a sale for the benefit of the creditors or heirs 
 of the testator, and not one by the widow for the benefit of 
 her creditors. Ibid. 
 
 10. Iu a case where it appeared that the widow, as general 
 devisee under her husband's will, had conveyed a large part 
 of the land in trust for payment of her own debts, and after- 
 wards, under the Ordinance above mentioned, had dissented 
 and was seeking to have dower therein: held, that she was 
 entitled to dower ; and also, that the trustee in the deed was 
 not a necessary party to her petition. Ibid. 
 
 11. A widow who is entitled to dower, can ordinarily ex- 
 ercise no right over the land until her dower has been assign- 
 ed. Webb v. Royle, 63 N. C. It. 271. 
 
 12. A creditor of the deceased had a light under the form- 
 er practice, to come in and be made a party defendant, for 
 
490 WIDOW— I. 
 
 the purpose of excepting to an admeasurement of dower in 
 the course of a petition by the widow. Moore, ex parte, 64 
 N. C. R. 90. 
 
 13. Arguendo: This is so still, under the act regulating 
 Special proceedings. Ibid. 
 
 14. In a petition for dower, in the County Court, judg- 
 ment was given that the petitioner was entitled, and au order 
 made for a jury to allot it ; upon the return of their report at 
 the next term, a person who claimed to be true heir of the 
 deceased, came in, and suggested that there had been no 
 marriage between the latter and the petitioner; an issue was 
 made up accordingly, and at an ensuing term it was tried, and 
 a verdict given in accordance with the suggestion ; upon the 
 petitioner's appealing to the Superior Court, she moved that 
 the report be confirmed ; this the Judge declined to do, and 
 ordered another issue to be tried, and petitioner appealed 
 again : held, that the alleged heir could not intervene to have 
 the judgment for dower set aside, as he was no party to the 
 proceedings. That such intervention could not, under the 
 circumstances, be supported as an application by one aggrieved 
 by the particular admeasurement, to have it set aside. Low- 
 ery v. Lowery, 64 1ST. C. R. 110. 
 
 15. When, for payment of a deceased husband's debts, it 
 becomes necessary to resort to lauds devised by him to his 
 wife, she is remitted to her right of dower, which, as in other 
 cases, is not subject to those debts during her life. Avery, 
 Ex parte, 64 N. C. R. 110. 
 
 16. A petition for dower may be Ex parte, in the names 
 of the widow and the heirs, but if the widow be guardian of 
 the heirs, and the estate be insolvent, the heirs should be 
 made parties defendant, with a properly constituted guardian 
 ad litem; and the creditors also are to be allowed to come in 
 if they choose, and make themselves defendants. Ibid. 
 
 17. One who claims the land under a conveyance made 
 by the deceased, has a right to intervene in proceedings for 
 dower in such land, instituted by the widow against the heirs 
 of the deceased. (iVctof 1868-'69, ch. 93, sec. 41.) Carney 
 v. Whitehurst, 64 1ST. C. R. 426. 
 
 18. Land having been devised charged with the payment 
 of a sum of money to a minor, the devisee also being appoint- 
 ed guardian of the minor: held, that the tact that the guard- 
 ian charged himself with such money in his returns to Court, 
 was no discharge of the lands. Smith v. Gilmer, 64 N". C. R. 
 546. 
 
 19. In such case the widow of the devisee, before she can 
 
WIDOW— I. 491 
 
 be called on to contribute, is entitled (in aid of dower) to have 
 the whole of the personal estate of the deceased, and, after 
 that, all of his real estate not included in her dower interest, 
 applied to the discharge of the debt. Ibid. 
 
 20. When A dies seized of land, leaving a widow, and B, 
 the son of A, occupies the land jointly with A's widow, and 
 thereafter B dies, when the widow of A applies and obtains 
 dower, the widow of B cannot be endowed of such land after 
 the death of the widow of A. Iieitzel v. Eckard, 65 N. 0. 
 E. 073. 
 
 21. Previous to the statutes of 1806-' 7, and 1 868-'9, pur- 
 posing to restore to married women the common-law right 
 of dower, the wife had only an inchoate right of dower, in the 
 lands of her husband, subject to be defeated at any time, by 
 the husband's conveyance. Sutton v. Askew, 66 N- 0. E. 172. 
 
 22. When land was acquired, and a marriage was con- 
 tracted, previous to the statutes aforesaid: held, that these 
 statutes cannot affect the rights of the husband, nor restrict 
 his power of alienation, nor confer upon tue wife any right of 
 dower, which she did not have before. Ibid. 
 
 23. Whether it is competent tor the General Assembly 
 to give a married woman a right of dower in land acquired 
 after the passage of the statutes referred to, although the 
 marriage took place before that time, quere f Ibid. 
 
 24. An agreement to pay a married woman a certain sum 
 of money for her right of dower in the land of her husbaud, 
 when the land was acquired, and the marriage was contracted 
 before March 2d, 1867, is void against creditors, for want of 
 consideration. Ibid. 
 
 25. It would seem that before a married woman can set 
 up her consent, as a consideration to support a contract, to 
 give her a part of the purchase money for a tract of land, sold 
 by her husband, it ought to appear that she has released her 
 right of dower or covenanted against incumbrances; and, 
 quere, whether, in any case, it could depend upon parol evi- 
 dence, and whether the contract must not be set out in the 
 deed, and appear to be fair and reasonable. Ibid. 
 
 26. Where a contract was made for the sale of land, and 
 a bond was given to make title upon the payment of the pur- 
 chase-money, and a portion of the purchase-money being un- 
 paid, an action was brought by the vendor against the vendee, 
 to sell the lands for payment of the balance due: held, that 
 in such action, the wife of the vendee was not a proper party, 
 if the marriage took place prior to March 2d, 1867 ; aliter, 
 
492 WIDOW— I. 
 
 if the marriage took place subsequent to that time. Bunting 
 v. Foy, 66 N. 0. E. 192. 
 
 27. The wife of a purchaser, who holds lands under a bond 
 for title, has a contingent right of dower to the extent of the 
 payments made by her husband. laid. 
 
 28. A claim for dower, under the Act of 1867, set up in 
 1872, the husband being still alive, cannot be sustained. 
 Felton v. Elliott, 66 N. 0. R. 195. 
 
 29. The act of March 2d, 1867, entitled an act restoring 
 married women their common law dower, having been repeal- 
 ed by the act of 1868-69, a feme covert cannot set up a claim 
 for a dower during the life-time of her husband. Hughes v. 
 Meritt, 67 K 0. R. 386. 
 
 30. The assignee of a widow, entitled to 103 acres of land 
 as dower, has a right to clear 10 acres of such dower land, 
 where the clearing and the timber thereon is necessary for 
 the proper cultivation of the remainder, and also necessary 
 for the support of the widow and her children. The order 
 restraining such clearing was properly vacated. Joyner v. 
 Speed, 68 K 0. R. 236. 
 
 31,. The widow of a mortgagor, as against the legatees and 
 next of kin as well as against the heirs and devisees of her de- 
 ceased husband, has a right to have the mortgaged land ex- 
 honorated from the mortgaged debts, but as against his oth- 
 er creditors she has no such right. As to them, she has only 
 the right to have the two-thirds of the land not embraced in 
 the dower, and the reversion of the dower sold, and the pro- 
 ceeds applied to the payment of the mortgage debt, and to 
 have the residue of that debt, if any, paid rateably with the 
 other debts of the deceased out of the personal assets, and if 
 there still be any part of the mortgage debt unpaid, it will be 
 a charge on the dower. Creecy v. Pearoe, Adm'r, 69 1ST. 0. 
 R. 67. 
 
 32. The widow, being but the representative of her hus- 
 band, who has no exclusive or superior right to any particular 
 portion of the land to be divided, has no right to have any 
 particular part of such land assigned to her as dower. Gre- 
 gory v. Gregory, 69 N. 0. R. 522. 
 
 33. A, B and are tenants in common of a tract of land; 
 dies in debt, and his widow becomes his administratrix. A 
 and B filed their petition for a partition of the land into three 
 parts : held, that the widow of 0, being entitled to dower, 
 and also as representing the creditors of 0, was a necessary 
 party to such petition, both as widow and as administratrix. 
 Ibid. 
 
WIDOW— I.— II -WILLS— I. 493 
 
 34 Where a tract of laud upon wbicb a widow bad dower 
 was sold, for the purpose of making assets to pay debts by 
 tbe administrator of tbe husband in two separate parts, and 
 she bid oft both parts at unequal prices, and the sale was set 
 aside as to the cheaper part: it teas held, that she had the 
 ricrht to have the sale set aside as to the other part also, 
 where it appeared that she would not have purchased the 
 former part unless she could have got the latter with it. 
 Davis v. Cureton, 70 N. 0. R. 607. 
 
 See (Constitution, 22, GG ) (Deed— Of the operation af a 
 deed, &c, 3 ) (Trusts and Trustees, 3r>.) 
 
 II. YEAR'S PROVISION. 
 
 1. It is not the lapse of time since the death of the hus- 
 band, but such lapse since the taking out of administration, 
 that affects the right of the widow to a year's provision. 
 Roqers, JEx parte, 63 N. 0. R. 110. 
 
 2. Therefore, where the husbaud died in June, lbfaO, ana 
 administration was not taken out till February Term, 18G8 : 
 held, that the widow was entitled to such provision under a 
 petition filed at that term. Ibid. 
 
 3. If a widow who has petitioned for a year's allowance 
 die after the Commissioners have made the allotment and 
 before the confirmation of their report by the Court, the peti- 
 tion abates, and cannot be revived by her administrator. 
 Dunn, JEx parte, 63 N. C. R. 137. 
 
 I. Attested wills. 
 II. Holograph wills. 
 
 WILLS. 
 
 III. Nuncupative wills. 
 
 I. ATTESTED WILLS. 
 
 1. Certain letters of a testamentary character, written and 
 signed bv the testator, dealing with property contained in the 
 principal paper propounded, and referred to therein as giving 
 further directions, having beeu rejected from probate: held, 
 that such rejection did not in the view of a court of probate 
 render such principal paper "unfinished," and void. Wood 
 v. Sawyer, Phil. L. R. 251. 
 
 2. When a paper- writing, purporting to be a will and exe- 
 cuted with the requisite formalities by a person competent to 
 
494 WILLS— I— II. 
 
 make a will, is offered for probate, it must be established 
 without regard to the construction of its contents, and with* 
 out consideration of any trusts declared therein, or resulting 
 to the heir. IMcl. 
 
 3. Where a testator leaves two wills, that of later date 
 not expressly revoking the former, and the former is pro- 
 pounded for probate : held, to be proper for the Court to leave 
 to the jury the question, whether it was the intention of the 
 testator that the former paper-wriiing should be his will. 
 Fleming v. Fleming, 63 N. 0. R. 209. 
 
 4. A paper-writing, written in any form, whether as a 
 deed or girt, deed poll or indenture, may be propounded as a 
 will, and operates as such if it appears to have been the pur- 
 pose of the maker of such instrument that it should take ef- 
 fect after his death. The words, ''I give at my death," are 
 operative words, and evidence testamentary intent. Belcher's 
 Will, 66 N. C E. 51. 
 
 II. HOLOGRAPH WILLS. 
 
 1. That a paper-writing, propounded as a will, has upon 
 it an attestation clause unwitnessed, will not prevent its being 
 established as a holograph. Hill v. Bell, Phil. L. E. 122. 
 
 2. The placing ot a holograph in a trunk, left for safekeep- 
 ing with a friend and having in it the larger part of the valua- 
 ble papers and money of the deceased, will satisfy the re- 
 quirements of the statute upon the question ot deposit. Ibid. 
 
 3. A script purporting to be a holograph will, was found 
 in a drawer inside of a desk, between a bag of gold coin and 
 a bag of silver coin ; and immediately above the drawer, in 
 pigeon-holes, were found notes, bonds and other valuable pa- 
 pers, arranged in files ; the drawer and pigeon-holes being 
 secured by the same door and lock : held, that the script was 
 properly deposited, under the act defining the requisites of 
 holograph wills. Hughes v. Smith, 64 N. 0. E. 493. 
 
 4. The change in that act as found in the Revised Stat- 
 utes, by which, as reproduced in the Revised Code, "or" has 
 become "and," does not affect the construction previously 
 given. Ibid. 
 
 5. Where a script, alleged ta be a halograph will, was 
 found in a trunk of the decedent, in which he had valuable 
 papers, aud it appeared that the decedent had also a tin box, 
 deposited in bank, in which he had other papers intrinsically 
 of more value than were those in the trunk : held, to be error 
 in the Judge, on the trial of an issue, devisavit vel non, to 
 
WILLS— II— III— WITNESS. 495 
 
 charge the jury, in relation to there being two proper deposi- 
 tories of a holograph will under the statute, that '* to consti- 
 tute such, he (the Judge) was satisfied there must be a some- 
 what equal division of the valuable papers and effects between 
 the two places claimed as legal depositories. Winstead v. 
 Bowman, 08 N. C. R. 170. 
 
 G. The phrase, "among the valuable papers and effects 
 of," &c, used iu sec. 435 (2) Code of Civil Procedure, does 
 not necessarily and without exception meau among the most 
 valuable papers, &c. Ibid. 
 
 7. Valuable papers consist of such as are regarded by a 
 decedent as worthy of preservation, and therefore iu his esti- 
 mation, of some value; dependiug much upon the condition 
 and business and habits of the decedent in respect to keeping 
 his valuable papers. Ibid. 
 
 III. NUNCUPATIVE WILLS. 
 
 1 Where a person, being in extremis, and conscious of it, 
 — sent for a friend with whom he had often talked on the sub- 
 ject of a will, — aud told him what disposition he wanted to 
 make of his property, and then such friend replied that if he 
 wanted to do anything of that kind he had better have some 
 other person in the room, and thereupon the speaker went 
 out and brought in another person, and in the presence of the 
 sick man repeated the proposed disposition of the property,, 
 to which the latter assented : held, to be a sufficient rogatlo 
 test him to satisfy the requirements of a nuncupative will. 
 Smith v. Smith, 03 N. 0. R 637. 
 
 2. Land cannot pass by a nuncupative will. "Smithdeal v. 
 Smith, 04 N. C. R. 52. 
 
 WITNESS. 
 
 One summoned as an expert in a criminal action, is en- 
 titled to extra compensation, under the Act of 1870-71, eh. 
 130, sec. 133. State v. Dollar, 00 N. C. R. 020. 
 
 See (Evidence.) 
 
ERRATA AND ADDENDA. 
 
 The cases marked "Errata" in the table of cases were by 
 mistake omitted in the body of the Digest and are inserted 
 here. 
 
 Amendments and Continuances. — All questions of 
 practice and procedure as to amendments and continuances 
 arising on a trial in the court below, are in the discretion of 
 the presiding Judge, from whose judgment thereon there is 
 no appeal. 0. 0. P. 133. Austin v. Clarke, 70 K C. R.458. 
 
 Appeals — Practice on Appeals. — 1. A judgment 
 appealed from, must be affirmed in this court, no error being 
 assigned on the record, in cases where the statement as pre- 
 pared by the appellant has been returned with objections, 
 and the appellant had failed to apply to the Judge below, to 
 give the parties a day to settle the case, as prescribed by 
 sec. 301, 0. 0. P. KirJcman v. Dixon, 66 K 0. R. 406. 
 
 2. In such case, upon proper affidavit, an order will be 
 made to the Judge to certify a statement, but if the Judge 
 returns to such order that no application to settle the case 
 had been made, the appellant is without remedy. Ibid. 
 
 3. Whether relief in such case is obtainable under sec- 
 tion 133 0. 0. P. quaere 1 Ibid. 
 
 Bond — Alteration of. — The addition of ihe words " in 
 specie" after the word " dollars" in a sealed note made Nov. 
 2nd, 1865, promising to pay "one hundred and twenty five 
 dollars" is a material alteration ; and when done by the prin- 
 cipal therein, with the concurrence of the obligee, in the ab- 
 sence of the surety and without his consent, avails such note 
 as to the said surety. Darwin v. Rippcy, 63 N. 0. R. 31 ^. 
 
 Boundary — License. — Where by the consent of the 
 owners, a line is run between two contiguous tracts, such 
 consent is a mutual license to both parties to treat such 
 line as the true boundary ; and neither party can hold the 
 other as a trespasser, without a revocation of that license. 
 Palmer v. Anderson, 63 N. C. R. 365. 
 
 Constitution — Return op Summons before Jus- 
 tices.— The 1st section of the Act of 1868-'9, chap. 86, 
 requiring writs of summons before Justices upon contracts 
 entered into before May 1st, 1865, to be returnable at the 
 pud of ninety days, is unconstitutional and void, as plainly 
 
498 EEEATA AND ADDENDA. 
 
 intending to binder a certain class of creditors, and therefore 
 impairing a certain class of contracts. Johnson v. Winsloiv, 
 64 N. 0. E. 27. 
 
 Constitution — Stay Law. — The provisions in the mag- 
 istrate's stay law of March 22d, 18G9, sec. 8, which allows 
 justices to set aside judgments, executions, &c, destroys 
 vested rights, and is, therefore, unconstitutional and void. 
 Miller v. Gibson, 63 N. 0. E. 635. 
 
 Costs — Security for Costs. — 1. Questions of costs and 
 security for the prosecution of suits should, as a general rule, 
 be left to the presiding Judge in the court below, yet a de- 
 fendant is entitled to invoke the supervisory power of the 
 Supreme Court to protect his rights in regard to the costs 
 of litigation. Osborne v. Henry, (56 N. C. E. 354. 
 
 2. When an assignee in bankruptcy proposes to take the 
 place of the original plaintiff in a suit, he ought to be re- 
 quired to give an undertaking or make a money deposit out 
 of the fund, sufficient to cover the costs. Ibid. 
 
 3. Whether an assignee in bankruptcy can sue in forma 
 pauperis quaere f It would seem to fall under the principle, 
 that executors and administrators are not embraced within 
 the provisions of law alllwing persons to sue in forma pau- 
 peris. Ibid. 
 
 Decree of the Supreme Court — Petition to re- 
 fer — Eeference. — 1. A petition to rehear a decree of the 
 Supreme Court when the error complained of is one of fact 
 committed in making an interlocutory order of reference, 
 and in confirming the report made by the commissioner, is 
 not strictly a petition to re-hear, but may be treated as a 
 motion to set aside the order of reference and the order con- 
 firming the report, and the sale made pursuant thereto. 
 Eason v. Billups, 65 N. C. E. 216. 
 
 2. It is error in an order to refer the matters in contro- 
 versy in a suit without the consent of the parties, to the at- 
 torney of one of them, it being the same as if the reference 
 were made to the party himself. Ibid. 
 
 Devise — Trust Fund. — Where land was devised by a 
 testator to his executors in trust for his widow and certain of 
 his issue during the life of the widow, and then over to such 
 issue, with directions to cultivate the land and keep an ac- 
 count of produce, sales and outlays, and after supporting the 
 widow aud children, divide the surplus ; held, that the land 
 and produce are chargeable, as a trust fund for liabilities in- 
 curred by one of the executors in cultivating the land, and 
 ©an be subjected by a civil action. Cannon v. Eobinson, 67 
 N. C. E. 53. 
 
ERRATA AND ADDENDA. 499 
 
 Ejectment — Title. — In an action of ejectment the only 
 questions which arise in regard to the title are as to its Valid- 
 ity at law. Davis v. Atkinson, 63 N. 0. R. 210. 
 
 Judgment — Vacating a Judgment. — A Judge of the 
 Superior Court has no power, upon motion, to set aside and 
 vacate a judgment of the former County Courts, rendered iu 
 a matter, touching the administration of a dead man's estate. 
 Such motion should be made before the Clerk, as Judge of 
 Probate Westcott v. Hewlett, 67 N. C. R. 191. 
 
 Judgment by Default — Effect of. — A judgment 
 by default in au action for goods sold and delivered, operates 
 as an admission by the defendant of a cause of action, and 
 that the plaintiff is entitled to nominal damages, but it does 
 not relieve the plaintiff from the necessity of proving the 
 delivery of the things alleged to have been sold and deliv- 
 ered, and their value; therefore, in such case, the defendant 
 may prove that such things never were delivered. Parker 
 v. Smith, 64 X. C. R. 291. 
 
 Jukisdiction of Justices. — 1. Where the complaint 
 alleged that the plaintiff had delivered to the defendant, an 
 Express Company, au article valued at less thau two hun- 
 dred dollars, and then averred the loss of it by negligence, 
 and demanded a judgment for a sum over two hundred dol- 
 lars, it was held that the claim was founded upon a contract 
 for less than two hundred dollars, and that, therefore, the 
 Superior Court had no jurisdiction of the case. Froelickv. 
 /Southern Express Co., 67 1ST. C R. 1. 
 
 2. When the claim is founded on a contract for less than 
 two hundred dollars, the Superior Court has no jurisdiction 
 of it, though it may be a case iu which the plaintiff might 
 formerly have sued in tort, and though the damages may be 
 uncertain. Ibid. 
 
 3. When it appears upon the complaint that the claim 
 is founded on a contract for less than two hundred dollars, 
 an objection to the jurisdiction of the Superior Court may 
 be taken in the Supreme Court, though it appears from the 
 pleadings iu the former Court that the objection was not 
 intended to be taken in that Court. Ibid. 
 
 Juitv — Challenge of Jurors. — 1. Where upon a trial 
 for a capital offence a juror was challenged, and the question 
 was asked " whether or not he was opposed to capital pun- 
 ishment, and he answered that he preferred sending a man 
 to the penitentiary for murder, and thought the law ought to 
 be changed:" held that this was a challenge propter affectum. 
 State v. Mercer, 67 N. C. R. 266. 
 
500 ERRATA AND ADDENDA. 
 
 2. When a challenge is made for unindifferency, the court 
 tries the fact, unless one of the parties demands triers, and 
 of the fact found, either by the court or the triers, there is 
 no review. Ibid. 
 
 Where the plaintiff's counsel, before the jury was empan- 
 neled, requested that any juror in the box, who was related 
 to any one of the defendants by blood or marriage should 
 retire, and no juror retired or replied: held that it was not 
 error for the Judge to refuse to grant a new trial, because, 
 after verdict and judgment, it was ascertained that a juror 
 was related by marriage to one of the defendants, it being 
 a matter of discretion. Spicer v. Fulghum, 67 N. 0. R. 18. 
 
 Larceny — Breach of Trust — A person emplod as a 
 field hand, working by the day, week or mouth, has no 
 charge of his employor's money, and if the latter entrusts 
 him with money and he embezzels it, he is not guilty of lar- 
 ceny. State v. Fann, 65 N. 0. R. 317. 
 
 Promisory Note — Payment in Currency. — A note 
 given 28th July, 1805 for $100, and payable January 1st, 
 I860, which says, "this money to be paid in current funds 
 at the time the note falls due," can only be discharged by a 
 payment in such funds as are current at the time of the ma- 
 turity of the note. Hilliard v. Moore, 05 N. 0. R. 540. 
 
 Summons — When Returnable. — The Clerk of the Su- 
 perior Court of one county has no right to issue a summons 
 returnable to the Superior Court of another county, but ir- 
 regularity of service is waived by an appearance and answer 
 iu^bar. Moore v. N. G R. li. Co., G7 N. C R. 209. 
 
 Taxes — Collection oe. — 1. A tax list prepared and 
 delivered to a sheriff, according to the provisions of the 
 Revised Code, ch. 99, constituted authority for the col- 
 lection of taxes, and was of the same force and effect, as an 
 execution issued from the County Court upon a judgment 
 rendered in said Court in a matter within its jurisdiction, 
 and it is no part of the duty of a sheriff to enquire whether 
 the taxes were properly laid or not. Gore v. Mastin, Ob' 
 N. C. R. 371. 
 
 2. The sheriff being a public officer is not bound to have 
 a regularly certified list of taxables with him, when he dis- 
 trains for taxes; it is sufficient that the list was made out 
 and delivered to him. 1 bid. 
 
 3. The legality of a tax cannot be tested in an action 
 brought to recover the value of property distrained and sold 
 by a sheriff under and by authority of a tax list in his hands. 
 Ibid. 
 
NAMES 
 
 OP 
 
 CASES, 
 
 REPORTED AND TO BE 
 
 FOUND IN THIS DIGEST 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Abbot, Overton v Phil. L. R. 293 184 
 
 Abrams, Wilson v 70 N. C. R. 324 298 422 
 
 Adair, State v 60 N. C. R. 298 90 171 306 
 
 Adair, State v 68 N. C. R. 63 231 458 
 
 Adams, Boner v Go K C. R. 639 43 360 
 
 Adams, Carrow v 65 N. C. R. 32 380 
 
 Adams, Day v 63 N. C. R. 254 41 
 
 Adams, Ladd v 66 N. C. R. 164 233 
 
 Adams v. Reeves, 68 N. C. R. 135 355 397 
 
 Adams, State v 65 N. C. R. 537 212 
 
 Adams, Taylor v 66 N. C. R. 338 357 
 
 Adderton, Russell v 64 N. C. R. 417 117 
 
 Addington, Com'rsof Jackson v.. 68 N. C. R. 254 18 
 
 Addington v. McDowell, 63 N. C. R. 389 . 100 
 
 Aderholt v. McKee 65 N. C. R. 257 117 
 
 Albright v. Albright, 67 N. C. R, 271 149 
 
 Albright v. Mitchell, 70 N. C. R. 445 390 
 
 Alderman, Ausley v Phil. L. R. 215 298 
 
 Alexander v. A.,T.&O.R.R.Co., 67 N. C. R. 198 411 
 
 Alexander v Com'rs of M'Dowell, 6 7 N. C. R. 330 333 
 
 Alexander v.Com'rs of M'Dowell, 70 N. C. R. 208 57 
 
 Alexander, Foard v 64 N. C. R. 69 185 
 
 Alexander v. Johnson, 70 N. C. R. 205 69 
 
 Alexander v. Rintels, 67 N. C. R. 634 442 
 
 Alexander, Ross v G5 N. C. R. 576 277 
 
 Alexander, Williams v 70 N. C. R. 665 290 
 
 Alexander v. Sammy, 66 N. C. R. 577 . 323 
 
 Alexander v. Taylor, Phil. Eq. R. 36 40 
 
 A lford, State v 67 N. C. R. 322 
 
 Allen, McKinn v 67 N. C. R. 181 47 
 
II NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Allen v. Plummer, 63 K C. R. 307 179 
 
 Allen, State v 69 N. C. R. 23 251 
 
 Allen, State v 68 N. C. R. 878 251 
 
 Allen, Taylor v 67 N. C. R. 346 465 
 
 Allison, Brandon v 66 N. C. R. 532 193 
 
 Allison, Bratton v 70 N. C. R. 498 273 
 
 Allison, Brem v 68 N. C. R 412 159 356 398 
 
 Allison v. Bryson, 65 N. C. R. 44 419 
 
 Allison, Campbell v 63 K C. R. 568 19 
 
 Allison, Rankin v 64 N. C. R. 673 359 373 
 
 Allison, State v Phil. L. R. 346 51 
 
 Allison v. West. N. C. R. R. Co., 64 N. C. R. 382 4 
 
 Alman, Morrow v 65 N. C. R. 508 388 
 
 Alman, State v 64 N. C. R. 364 255 257 
 
 Alsbrook v. Shields, 67 N. C. R. 333 66 
 
 Alspaugh v. Jones, 64 N. C. R. 29 41 
 
 Ambrose, in re, Phil. L. R. 91 25 
 
 Anderson v. Cape Fear St'm.Co., 64 N. C. R. 398 4 393 
 
 Anderson, Ledbetter v Phil. Eq.R. 323 59 177 
 
 Anderson, Palmer v 63 N. C. R. 365 (see arreta.) 
 
 Andrew, State v Phil. L. R. 205 162 
 
 Andrews, Isler v 66 N. C. R. 552 448 
 
 Andrews v. McDaniel, 68 N. C. R. 385 150 361 
 
 Andrews v. Pritchett, 66 N. C. R. 387 389 
 
 Applewhite v. Hales, 65 N. C. R. 244 52 
 
 Arents, Wilson v 70 N. C. R. 670 239 
 
 Armfield v. Brown, 70 N. C. R. 27 421 
 
 Arrington, Collier v Phil. L. R. 356 1 
 
 Asbury, McDowell v 66 N. C. R. 444 199 
 
 Askew, Broughton v Phil. L. R. 21 140 
 
 Askew v. Pollock, 66 N. C. R. 49 14 115 
 
 Askew v. Stevenson, Phil. L. R. 288 36 404 
 
 Askew, Sutton v 66 N. C. R. 172 491 
 
 Aston v. Craigmiles, 70 N. C. R. 316 345 399 
 
 Atkins v. Mooney, Phil. L. R. 31 54 181 
 
 Atkinson v. Cox, 64 N. C. R. 576 285 
 
 Atkinson, Davis v 63 N. C. R. 210 (see arreta.) 
 
 Atkinson, Miller v 63 N. C. R. 537 132 
 
 Atkinson, Mitchener v Phil. L. R. 23 319 488 
 
 Atkinson, Mitchener v 63 N. C. R. 585 320 
 
 Atkinson v. Whitehead, 66 N. C. R. 296 224 
 
 Atkinson v. Williams, 63 N. C. R. 592 429 
 
 Atlantic Bank v. Frankford, . . . Phil. L. R. 199 , 12 381 
 
 A.,T. & O.K. R. Co., Alexander v. 67 N. C. R. 198 411 
 
NAMES OF OASES. 
 
 Ill 
 
 NAMES OF PARTIES. 
 
 A., T. & O. R. R. Co. v. Cowles, 
 A., T. & O. R. R. Co. v. Johnston, 
 A., T. & O. R.R.Co., Sampson v. 
 A., T. & O. R. R. Co. v. Sharpe, 
 
 Atwood, Lemly v 
 
 Ausley v. Alderman, 
 
 Austin v. Clark, 
 
 Austin v. Helms, 
 
 Avery, Ex parte, 
 
 Avery, Merony v 
 
 Avery, Morris v 
 
 Avery, State v 
 
 Avery, West. N. C. R. R. Co. v. 
 
 Aycock v. Harrison, 
 
 Aycock v. Harrison, 
 
 Backalan v. Littlefield, 
 
 Badger v. Jones, 
 
 Badham v. Jones, 
 
 Badham, Thompson v 
 
 Baer, Gashine v 
 
 Baggarley v. Colvert, 
 
 Bailey, State v 
 
 Bailey v. Caldwell, 
 
 Baird v. Baird, 
 
 Baird, Gudger v 
 
 Baird v. Hall, 
 
 Baker, Davis v 
 
 Baker v. Robinson, 
 
 Baker, State v 
 
 Baker, State v 
 
 Baker, State v 
 
 Baker, State v 
 
 Ballard, Merwin v 
 
 Ballard, Merwin v 
 
 Ballard, Comm'rs of Granville v. 
 
 Ballard, Moore v 
 
 Ballard v. Thomason, 
 
 Banister, McAden v 
 
 Bank of Cape Fear, Boyd en v. . 
 Bank of Charlotte v. Britton,. . . 
 Bank of CapeFear, Clerk's office v. 
 
 Bank of Cape Fear, Fort v 
 
 Bank of Charlotte, Burroughs v. 
 Bank of Charlotte v. Britton, . . 
 
 REPORTER. PAGE OF DIGEST. 
 
 69 N. C R. 59 61 462 
 
 70 K C. R. 348 413 
 
 70 N. C. R. 404 25 
 
 70 N. C. R. 509 210 
 
 65 N. C. R. 46 222 
 
 Phil. L. R. 215 298 
 
 70 N. C. R. 458 (see arreta.) 
 
 65N. C. R. 560 336 
 
 64 N. C. R. 113 490 
 
 64 N. C. R. 362 388 
 
 Phil. L. R. 238 1 
 
 64 N. C. R. 608 236 
 
 64 N. C. R. 491 410 
 
 63 N. C. R. 145 385 450 
 
 65 N. C. R. 8. 170 
 
 64 N. C. R. 233 38 
 
 66 N. C. R. 305 186 192 297 
 
 64 N. C. R. 655. 176 
 
 70 N. O. R. 141 187 
 
 64 N. C. R. 108 37 
 
 70 N. C. R. 688 2 
 
 65 N. C. R. 426 21 
 
 68 N. C. R. 472 91 
 
 Phil. Eq. R. 317 328 
 
 66 N. C. R, 438 29 360 
 
 67 N. C. R. 230 80 
 
 67 N. C. R. 388 137 
 
 63 N. C. R. 191 54 
 
 63 N. C. R. 276 256 299 
 
 55 N. C. R. 332 33 
 
 69 N. C. R. 147 259 398 
 
 70 N. C. R. 530 260 
 
 65 N. C. R. 468 103 367 
 
 66 N. C. R. 398 275 388 
 
 69 N. C. R. 18 116 458 
 
 69 N. C. R. 21 116 
 
 65 N. C. R. 436 425 
 
 63 N. C. R. 478 275 
 
 65 N. C. R. 13 48 
 
 66 N. C. R. 3G5 367 
 
 G6N. C. R. 214 46 113 
 
 Phil. L. R. 417 48 
 
 70 N. C. R. 283 51 
 
 06 N. C. R. 345 443 
 
IV NAMES OF OASES. 
 
 NAMFS OP PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Bank of Charlotte v. Davidson,. 70 N. C. R. 118 4G9 
 
 Bank of Charlotte v. Hart, 67 K C. R. 264 50 
 
 Bank of Charlotte v. Jenkins, . . 64 N. C. R. 719 21 460 
 
 Bank of Charlotte v. Stenhouse, 70 N. C. R. 703 273 
 
 Bank of Fayetteville, Bates v. . . 65 K C. R. 81 276 
 
 Bank of Wilniing'n, Crawford v. Phil. L. R. 136 48 111 382 
 
 Banks v. Shannonhouse, Phil. L. R. 284 204 
 
 Banks, State v Phil. L. R. 577 310 
 
 Barden v. Southerland, 70 N. C. R. 528 57 
 
 Barham v. Gregory, Phil. Eq.R. 243 315 
 
 Barham v. Gregory, Phil. Eq.R. 249 359 
 
 Barnard, Merrill v Phil. L. R. 569 13 
 
 Barnes v. Barnes, 65 N. C. R. 261 104 
 
 Barnes v. Brown, 69 N. C. R. 439 341 
 
 Barnes, Howell v 64 N. C. R. 626 284 
 
 Barnes, Miller v 65 N. C. R. 67 299 
 
 Barnett, Rountree v 69 N. C. R. 76 70 403 
 
 Barnhill, Wilson v 64 N. C. R. 121 30 
 
 Barrett, Worthy v 63 K C. R. 199 84 330 
 
 Barringer v. Barringer, 69 N. C. R. 179 134 
 
 Barringer v. Halbrook, 64 N. C. R. 540 17 
 
 Barringer, State v Phil. L. R 554 298 
 
 Barrington v. Neuse R. F'y Co., 69 N. C. R. 165 207 
 
 Barry v. Sinclair, Phil. L. R. 7. . 2 36 
 
 Barton, Ex parte, 70 N. C. R. 184 65 
 
 Batchelor v. Macon, 69 K C. R. 545 131 
 
 Batchelor v. Mason, 67 N. C. R. 181 485 
 
 Bates v. Bank of Fayetteville, . . 65 N. C. R. 81 276 
 
 Bates v. Hinsdale, 65 N. C. R. 423 277 
 
 Bates v. Lilly, 65 N. C. R. 232 451 
 
 Battle v. Davis, 68 N. C. R. 252 304 
 
 Battle, McRae v 69 N. C. R. 98 241 358 369 
 
 Battle v. Thompson, 65 N. C. R. 406 445 
 
 Battle v. Wil. & Tar. R. R. Co., 68 N. C. R. 540 267 325 
 
 Battle v. Wil. & Wei. R R. Co., 66 N. C. R. 343 411 
 
 Baucum v. Smith, 66 N. C. R. 537 55 
 
 Baurman, Richards v 65 N. C. R. 162 266 354 
 
 Bayne v. Jenkins, 66 N. C. R. 356 333 
 
 Beach, Weodfln v 70 N. C. R. 155 268 
 
 Beal, Jenkins & Co. v 70 N. C. R. 440 356 
 
 Bear v. Cohen, 65 N. C. R. 511 38 290 
 
 Beard v. Hall, 63 N. C. R. 39 438 
 
 Beard v. Hudson, Phil. L. R. 180 26 
 
 Beatty, Caldwell v 67 N. C. R. 142 417 
 
ft AMES OF CASES. V 
 
 KAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Beatty, Caldwell v G8 N. C. R. 399 H4 
 
 Beatty, Caldwell v 69 N. C. R. 355 42 293 418 
 
 Beatty, Howard v 64 N. C. R. 559 374 441 
 
 Beatty, State v Phil. L. R. 52 253 
 
 Beatty, State v 66 N. C R. 648 53 
 
 Beatty, N. C. Land Co. v 69 N. C. R, 329 
 
 Beckham v. Wittkowski, 64 K C. R. 464 144 189 
 
 Belcher's Will, 66 N. C. P. 51 494 
 
 Bell, Hill v Phil. L. R. 122 152 494 
 
 Bell v. King, 70 N. C. R. 330 298 
 
 Bell, Latham v 69 N. C. R. 135 194 
 
 Bell, State v Phil. L. R. 76 ...83 348 405 463 
 
 Bell, State v G5 N. C. R. 313 §0 
 
 Benbow, McAdoo v 63 JST. 0. R. 461 86 
 
 Benbow v. N. C. R. R. Co , . . . . Phil. L. R. 421 .... . 72 
 
 Bennett, Crummen v OS N. C. R. 494 235 
 
 Bennick v. Bennick, Phil. Eq. R. 45 474 
 
 Benson, Linker v 67 N. C. R. 150 423 
 
 Berry v. Thompson 64 N. C. R. 77 281 
 
 Berry, Thompson v 64 N. C. R. 81 382 
 
 Berry, Thompson v 65 N. C. R. 484 453 
 
 Bessenfc v. Harris, 63 N. C. R. 542 9 
 
 Bessent v. Henderson 68 N. C. R. 223 44 105 
 
 Betts, Gifford v 61 N. C. R. 62 101 
 
 Bibb, Foreman v 65 N. C. R. 128 278 
 
 Biggs v. Brickell, 68 N. C. R. 239 179 
 
 Biggs, Ex parte 64 N. C. R. 202 93 
 
 Biggs v. Harris, 64 N. C. R. 413 26 
 
 Biggs v. Williams, 66 N. C. R. 427 13 272 360 
 
 Billups, Eason v 65 N. C. R. 216 (see erreta. ) 
 
 Bingham v. Richardson, Phil. L. R. 315 382 
 
 Birdsey v. Harris, 68 N. C, R. 92 288 
 
 Black v. Jones, 64 N. C. R. 318 409 
 
 Blackburn v. Brooks, 65 N. C. It. 413 78 
 
 Blackburn, Com'ra of Forsj th v. OS N. C. R. 406 11 300 415 
 
 Blackmer v. Phillips, 67 N. C. R. 310 55 
 
 Blackwelder, State v Phil. L. R. 38 253 
 
 Blackwell v. Cummings, 68 N. C. R. 121 341 
 
 Blackwell, Willard v 65 N. C. R. 555 110 
 
 Blagge, State v Phil. L. R. 11 463 
 
 B keley, Latham v 70 N. C. R. 368 208 
 
 Blakeley v. Patrick, 67 N. C. R. 40 66 341 
 
 Jock, State v Phil. L. R. 212 15 
 
 Bland v. Hartsoe, 65 N. O. R. 204 192 199 
 
 Bhmd v. O'Hagan, 64 N. C. R. 471 20 
 
VI NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAdF, OF DIGEST?. 
 
 Bland v. Warren, 65 N. C. E. 372 161 
 
 Blankenship v. McMahon, 63 N. C. B. 180 37 
 
 Bledsoe v. Nixon, 68 N. C. B. 521 118 461 
 
 Bledsoe v. Nixon, 69 N. 0. B. 81 24 
 
 Bledsoe v. Nixon, 69 N. C. B. 89 273 344 
 
 Bledsoe, People and Welker v. . 68 N. C. B. 457 90 349 
 
 Bledsoe v. State, 64 N. C. B. 392. 67 
 
 Blevins, Waugh v 68 N. C. B. 167 194 486 
 
 Blossom v. Van Amringe, Phil. Eq. B. 133 213 262 
 
 Blossom v. Van Amringe 63 N. C. B. 65 27 
 
 Blount v. Carroway, 67 N. C. B. 396 480 
 
 Blount, Mann v 65 N. C. B. 99 50 
 
 Blount v. Windley 68 N. C. B. 1 50 468 
 
 Blue, Nelson v 63 N. O. B. 659 317 376 
 
 Blum, Sledge v 63 N. C. B. 374 19 264 488 
 
 Bobbitt v. Brownlow, Phil. Eq. B. 252 475 
 
 Bobbitt v. Insurance Co., 66 N. C. B. 70 270 
 
 Bobbitt, State v 70 N. 0. B. 81 358 400 
 
 Bodenhammer, Whitfield v Phil. L. B. 362 472 
 
 Bondv.Bond, 69 N. 0. B. 97 96 
 
 Bond, Whitaker v Phil. Eq. B. 227 328 
 
 Bond, Whitaker v 63 N. C. B. 290 99 218 263 
 
 Bond, Woodley v 66 N. C. B. 396 350 
 
 Boner v. Adams, 65 N. C. B. 639 43 
 
 Bost, Clodfelter v 70 N. C. B. 733 228 
 
 Bost v. Minguis, 64 N. 0. B. 44 473 
 
 Boudinot, Moore v 64 N. C. B. 190 68 
 
 Bowman, Winstead v 68 N. C. B. 170 495 
 
 Boyd v. Murray, Phil. Eq. B. 238 177 
 
 Boyden v. Bank of Cape Fear. . 65 N. C. B. 13 48 
 
 Boyden, Cauble v 69 N. C. B. 434 293 
 
 Boykin v. Boykin, 70 N. C. B. 262 150 
 
 Boykin, Ferrell v Phil. L. B. 9 26 
 
 Boylan v. Boylan, Phil. Eq. B. 160 315 
 
 Boyle v. City of Newbern, 64 N. C, B. 664 410 
 
 Boyle v. Webb, 63 N. C. B. 271 362 489 
 
 Boyleston's In. Co. v. Davis,. . . 63 N. C. B. 17 467 
 
 Boyleston's In. Co. v. Davis,. . . 70 N. C. B. 485 120 
 
 Bradley, DeBosset v 63 N. C. B. 17 299 459 
 
 Branch v. Hunter Phil. L. B. 1 129 146 
 
 Branch, Stancill v Phil. L. B. 217 12 
 
 Branch, Stancill v Phil. L. B, 306 177 
 
 Branch, State v 68 N. C. B. 186 307 
 
 Brandon v. Allison, 66 N. C. B. 532 193 
 
 Brandt, Ward v Phil. Eq. B. 71 474 
 
NAMES OF OASES. VII 
 
 NAMES OP PARTIES. REPORTER. 
 
 Brantley, State v 63 N. C. ft. 518. 
 
 Braswell, Dancy v 64 N. C. R. 102. 
 
 Braswell, Knight v 70 N. 0. E. 709 . 
 
 Bratton, Allison v 70 N. C. R. 498. 
 
 Bray, State v 67 N. C. R. 283. 
 
 Brem v. Allison 68 N. C. R. 412. 
 
 Brem v. Jamieson, 70 N. C. R. 566 
 
 Brendle v. Heron, 68 N. C. R. 496. 
 
 Brevard, State v Phil. Eq. R. 141 . 
 
 Briant v. Corpening, Phil. Eq. R. 325 . 
 
 Brickell, Biggs v 68 N. C. R. 239 . 
 
 Bridgers v. Bridgers, 69 N. C. R. 451 . 
 
 Briggs, Jenkins v . . . . . 65 N. C. R. 159 . 
 
 Brinkley v. Swicegood, 65 N. C. R. 626. 
 
 Britton v. Miller, 63 N. O. R. 268. 
 
 Britton, Bank of Charlotte v.. . . 66 N. C. R. 345. 
 
 Broaddus v. Evans, 63 N. C. R. 633. 
 
 Broadway, State v 69 N. O. R. 411 . 
 
 Brodnax v. Groom, 64 N. C. R. 244. 
 
 Brodnax, State v Phil. L. R. 41. 
 
 Brogden v. Privett 67 N. C. R. 45 . 
 
 Brooks, Blackburn v 67 N. O. R. 413 . 
 
 Brooks, Link v Phil. L. R. 499. 
 
 Brooks v. Morgan, 5 Ired. R. 481 . 
 
 Brooks v. Tucker, Phil. L. R. 309. 
 
 Broom, McLarty v 67 N. C. R. 311 . 
 
 Brothers v. Com'rs of Currituck, 70 N. C. R. 726. 
 
 Broughton v. Askew, Phil. Eq. R. 21 . 
 
 Broughton v. Haywood Phil. L. R. 380. 
 
 Brower v. Hughes 64 N. C. R. 642 . 
 
 Brown, Barnes v 69 N. C. R. 439 
 
 Brown, Armtield v 70 N. C. R. 27. 
 
 Brown v. Com'rs of Washington, 63 N. C. R. 514. 
 
 Brown, Fentress v Phil. L. R. 373 . 
 
 Brown v. Foust 64 N. C. R. 672. 
 
 Brown v. Green, 64 N. C. R. 553 . 
 
 Brown v. Hawkins 65 N. C. R. 645 . 
 
 Brown v. Hawkins, 68 N. O. E. 444 . 
 
 Brown, Isler v 66 N. C. R. 656 . 
 
 Brown, lsler v 67 N. C. R. 175. 
 
 Brown, Lsler v 69 N. C. R. 125. 
 
 vu, Keerans v 68 N. C. R. 43. 
 
 sra, MoOarty v 67 N. C. R. 311 . 
 
 Brown v. White 68 N. O. R. 05 . 
 
 Brown, Robeson v 63 N. C. R. 554 . 
 
 PAGE OP DIGEST. 
 
 169 
 
 393 
 
 
 441 
 
 
 61 
 
 
 273 
 
 
 258 
 
 157 356 
 
 398 
 
 
 450 
 
 115 
 
 365 
 
 
 464 
 
 
 214 
 
 
 179 
 
 175 
 
 293 
 
 160 453 
 
 468 
 
 102 
 
 457 
 
 
 316 
 
 367 
 
 422 
 
 
 354 
 
 
 53 
 
 
 87 
 
 
 236 
 
 
 41 
 
 
 78 
 
 
 64 
 
 
 336 
 
 
 134 
 
 203 
 
 224 
 
 
 466 
 
 
 140 
 
 68 
 
 335 
 
 148 
 
 366 
 
 
 341 
 
 
 421 
 
 156 
 
 401 
 
 
 82 
 
 
 442 
 
 
 441 
 
 13 
 
 38 
 
 
 39 
 
 
 180 
 
 
 375 
 
 
 289 
 
 
 174 
 
 203 
 
 224 
 
 
 132 
 
 86 
 
 440 
 
VIII NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. 
 
 Brown v. Smith, 67 N. C. R. 245 . 
 
 Brown, State v 67 N. C. B. 470. 
 
 Brown, State v 67 N. C. B. 435. 
 
 Brown, State v , 67 N. C. B. 475 . 
 
 Brown, State v 68 N. C. E. 554. 
 
 Brown, State v 70 N. C. E. 27. 
 
 Brown v. Turner, 64 N. C. E. 381 . 
 
 Brown, Warren v 70 N. C. E. 93 
 
 Brownlow, Bobbitt v Phil. Eq. E. 252 . 
 
 Bruner, State v 65 N. C. B. 499 . 
 
 Bryan, Earl v Phil. Eq. E. 278. 
 
 Bryan v. Faucette, 65 N. C. E. 650 . 
 
 Bryan v. Fowler, 70 N. C. E. 596 . 
 
 Bryan v. Heck, ." 67 N. C. E. 322 . 
 
 Bryan v. Foy, 69KC.E. 45. 
 
 Bryan v. Harrison, 69 N. C. E. 151 . 
 
 Bryan, Haywood v 63 N. C. E. 521 . 
 
 Bryan v. Hubbs, 69 N. C. E. 423. 
 
 Bryan, Street v 65 N. C. E. 619 . . 
 
 Bryan v. Walker, 64 N. O. E. 141 . 
 
 Bryan, Walston v 64 N. 0. E. 764. 
 
 Bryant, State v 65 N. C. E. 327. 
 
 Bryant v. Scott, 67 N. C. E. 391 . 
 
 Bryce, Amis v 70 N. C. E. 422 
 
 Bryce v. Butler 70 N. 0. E. 585 
 
 Bryce, Calloway v 66 N. C. E. 514 . 
 
 Bryson, Allison v 65 N. 0. E. 44. 
 
 Bryson v. Shuler, 65 N. 0. E. 201 . 
 
 Bryson, Smith v Phil. Eq E. 237 
 
 Buckner, State v Phil. L. E. 558 . 
 
 Bale v. Parker, 63 N. C. E 131 . 
 
 Buie v. Howell, 64 N. C. E. 446. 
 
 Ballard v. Johnson 65 N. C. B, 436 
 
 Ballings v. Marshall, 70 N. C. E. 520 
 
 Bullock, State v . 0. E. 570 . . 
 
 Bunting v. Foy, 66 N. C. B, 193 . 
 
 Bunting v. Harris, Phil. Eq. E. 11 . 
 
 Bunting v. Mcllhenuy, Phil. L. B, 579 
 
 Banting, State v 65 N. C. E. 317. 
 
 Bunting v. Wright, Phil. L. R. 295 . 
 
 Burl sank v. Williams, Phil. L. E. 37. 
 
 Ink v. Wiley, 66 N. C. E. 58 . 
 
 jobs, C3 PT. C. E. 196. 
 
 . Stokely, 65 N. 0. R. 560 . 
 
 Barns v. Harris 66 N. C. E. 509. 
 
 PAGE OF DIGEST. 
 
 
 
 7 
 
 
 
 149 
 
 
 
 397 
 
 
 
 229 
 
 
 
 226 
 
 
 
 42 
 
 
 
 54 
 
 
 
 349 
 
 
 
 475 
 
 
 
 171 
 
 
 
 214 
 
 
 
 175 
 
 
 
 4 
 
 
 104 
 
 346 
 
 3 
 
 444 
 
 368 
 
 25 
 
 176 
 
 451 
 
 17 
 
 389 
 
 445 
 
 408 
 
 
 177 
 
 387 
 
 30 
 424 
 
 56 
 153 
 395 
 419 
 
 40 
 353 
 208 
 141 
 327 
 
 13 
 
 152 
 
 293 
 
 
 
 257 
 
 
 360 
 
 389 
 
 270 
 312 
 269 
 
 S2 
 
 
 378 
 
 
 
 286 
 
 
 
 234 
 
 403 
 
NAMES OF CASES. IX 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Burns v. Harris 67 N. C. E. 140 234 
 
 Burns v. Harris, 67 N. O. B. 376 
 
 Burroughs v. Bank of Charlotte, 70 N. 0. B. 283 51 
 
 Burroughs v. Comm'rs of Rich- 
 mond, 65 N. C. B. 234 272 
 
 Burroughs v. Jenkins, Phil. Eq. B. 33 158 213 
 
 Burroughs v. N. C. B. B. Co., . . 67 N. C. B. 376 412 
 
 Burroughs, Bedmond v 63 N. C. B. 242 316 458 
 
 Burwell, State v 63 N. C. B. 661 33 307 
 
 Burwell, Harris v 65 N. C. B. 584 445 
 
 Burt, State v 64 N. C. E. 619 310 
 
 Burton v. Wilkes, 66 N. C. B. 604 61 871 395 
 
 Butler, Brye v 70 N. C. B. 585 153 
 
 Butler, State v 65 N. C. B. 309 812 
 
 Butner v. Chaffin, Phil. L. B. 497 136 
 
 Byers, Moore v 65 N. C. E. 240 198 276 
 
 Byers, Carlton v 70 N. C. B. 691 196 
 
 Bynum v. Daniel, 63 N. C. B. 24 387 
 
 Bysaner, Grier v 63 N. C. B. 131 458 
 
 Cable v. Hardin, 67 N. C. B. 472 443 
 
 Caffey v. McMichal, 64 N. C. B. 507 221 
 
 Cahoon v Simmons, 68 N. C. B. 393 105 
 
 Caldwell v. Parks, Phil. L. B. 54 383 
 
 Caldwell, Douglass v 64 N. C. B. 872 880 
 
 Caldwell, Douglass v 65 N. C. B. 248 424 
 
 Caldwell, Paine v 65 N. C. B. 488 472 
 
 Caldwell, Bailey v 68 N. C. R. 472 91 
 
 Caldwell v. Beatty, 68 N. C. B. 399 114 
 
 Caldwell v. Beatty, 69 N. C. B. 365 42 293 418 
 
 Caldwell v. Beatty, 67 N. C. B. 142 417 
 
 Caldwell, Malpass v 70 N. C. R. 130 218 
 
 Caldwell, Pearson v 70 N. C. R. 291 228 381 
 
 Califer, Lynan v 64 N. C. R. 572 302 
 
 Calloway v. Hamby, 65 N. C. R. 631 104 
 
 Calloway v. Bryce, 66 N. C. R. 514 395 
 
 Calloway, Wilcoxon v 67 N. C. R. 463 486 
 
 Calvert, Stancill v 63 N. C. R. 616 140 
 
 Calvert v. Williams, 64 N. C. R. 168 219 
 
 Calvert ; Baggerly v 70 N. C. R. 688 2 
 
 Camp, Twittyv Phil. Eq. R. 61 128 
 
 Camp v. Smith, 68 N. C. R. 537 203 318 
 
 Campbell, State v 68 N. C. R. 157 24 
 
 Campbell v. Allison, 63 N. C. R. 568 19 
 
 Campbell, Perry v 03 N. C. R. 257 464 
 
 2 
 
X NAMES OF OASES. 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Cannon, Cooper v Phil. Eq. R. 83 314 
 
 Cannon v. Robinson, 67 N. C. R. 53 
 
 Cansler, Henderson v 64 N. C. R. 469 62 
 
 Cansler, Henderson v 65 N. C. R. 542 29 
 
 Cape Fear & D. R. Nav. Co. v. 
 
 Costen, 63 N. C. R. 264 19 111 
 
 Cape Fear Steamboat Co., Ander- 
 son v 64 N. C. R. 399 4 393 
 
 Capehart v. Etheridge, 63 N. C. R. 353 
 
 Cardwell v. Cardwell, 64 N. C. R, 621 
 
 Cardwell v. Mebane, 68 N. C. R. 485 
 
 Carlton v. Hart, 63 N. C. R. 569 
 
 Carlton v. Byers, 70 N. C. R. 691 
 
 Carney v. Whitehurst, 64 N. C. R. 426 
 
 Caroon v. Cooper, 63 N. C. R. 386 
 
 Carpenter v. Keeter 65 N. C. R. 475 
 
 Carpenter, Paul v 70 N. C. R. 502 
 
 Carr v. Fearington, 63 N. C. R. 560 
 
 Carrawan, Credle v 64 N. C. R. 422 
 
 Carrier v. Jones, 68 N. C. R. 127 
 
 Carrier v. Jones, 68 N. C. R. 130 
 
 Carroll v. Haywood, 64 N. C. R. 481 
 
 Carrow v. Wash'g'n Bridge Co., Phil. L. R. 118 
 
 Carrow v. Adams, 65 N. C. R. 32 
 
 Carroway, Blount v 67 N. C. R. 396 
 
 Carson v. Carson, Phil. Eq. R. 57 
 
 Carson v. Carter, 64 N. C. R. 332 
 
 Carson v. Com'rs of Cleaveland, 64 N. C. R. 566 
 
 Carson v. Oates 64 N. C. R. 115 
 
 Carson, Parker v 64 N. C. R. 563 
 
 Carson v. Mills 69 N. C. R. 32 
 
 Carson v. Mills, 69 N. C. R. 122 
 
 Carson v. Lineberger, 70 N. C. R. 173 
 
 Carstaphen, Harris v 69 N. C. R. 416 
 
 Carter v. McGehee Phil. L. R. 431 
 
 Carter, Carson v 64 N. C. R. 332 
 
 Carter v. Cocke, 64 N. C. R. 239 
 
 Carter v. Hoke, 64 N. C. R. 348 
 
 Carter, Savage v 64 N. C. R. 196 
 
 Carter v. West. N. C. R. R. Co., 68 N. C. R. 346 
 
 Carter, Jenkins v 70 N. C. R. 500 
 
 Castleberry, Green v 70 N. C. R. 20 
 
 Cauble v. Boyden, 69 N. C. R. 434 
 
 Cauble, State v 70 N. C. R. 62 
 
 Caudle, State v 63 N. C. R. 30 
 
 77 
 
 264 
 
 
 21 
 
 
 155 
 
 
 19 
 
 
 196 
 
 
 490 
 
 
 489 
 
 
 129 
 
 
 243 
 
 
 328 
 
 
 240 
 
 
 423 
 
 
 343 
 
 
 20 
 
 
 457 
 
 
 380 
 
 
 480 
 
 
 121 
 
 
 27 
 
 330 
 
 409 
 
 
 196 
 
 
 442 
 
 
 152 
 
 
 455 
 
 
 399 
 
 
 228 
 
 75 
 
 220 
 
 
 27 
 
 
 475 
 
 264 
 
 337 
 
 
 360 
 
 
 373 
 
 204 
 
 298 
 
 
 421 
 
 
 293 
 
 160 
 
 428 
 
 14 
 
 208 
 
NAMES OF OASES. XI 
 
 NAMES OP PAKTIES. REPORTER. PAGE OP DIGEST. 
 
 Chaffin, Butner v Phil. L. E. 497 136 
 
 Chambers v. Davis Phil. Eq. E. 152 314 
 
 Chambers, McConaughey v . . . . 64 N. C. E. 284 445 
 
 Chambers v. Greenwood, 68 N. C. E. 274 390 
 
 Chandler v. Holland, Phil. L. E. 598 474 
 
 Chandler v. Hunt 65 N. C. E. 587 445 
 
 Chapman, Cohen v Phil. Eq. E. 92 97 437 
 
 Chapman v. Waxcaser, 64 N. C. E. 532 60 
 
 Charleton v. Sloan, 64 N. C. E. 702 43 
 
 Charles v. Kennedy, 64 N. C. E. 442 129 
 
 Charlotte & S. C. E. E. Co., 
 
 Pinnix v 66 N. C. E. 34 73 
 
 Charlotte & S. C. E. E. Co., 
 
 Stenhouse v 70 N. C. E. 542 9 
 
 Charlotte & S. C. E. E. Co., 
 
 Graham v , 64 N. C. E. 631 372 
 
 Charlotte & S. C. E. E. Co., 
 
 Glenn v 63 N. C. E. 510 72 393 
 
 Chatham E. E. Co., Kingsbury v 66 N. C. B. 284 372 
 
 Cheatham v Jones, 68 N. C. E. 153 234 
 
 Cheek, Lipscomb v Phil. L. E. 332 81 
 
 Cherry v. Long, Phil. L. E. 466 108 
 
 Cherry, State v 63 N. C. E. 493 31 151 169 
 
 Cherry v. Savage, 64 K C. E. 103 441 
 
 Cheshire, Garrett v 69 N. C. E. 396 235 
 
 Childs v. Martin, 68 N. C. E. 307 24 
 
 Childs v. Martin, 69 N. C. E. 126 305 
 
 Chipley, Simonton v 64 N. C. E. 152 10 20 
 
 Chipley v. Keeton, 65 N. C. E. 534 354 
 
 Chisholm, McLennan v 64 N. C. E. 323 20 
 
 Chisholm, McLennan v 66 N. C. E. 100 129 395 
 
 Chisholm, McLennan v 64 N. C. E. 328 219 
 
 Church, State v 63 N. C. E. 15 33 
 
 Church v Furniss, 64 N. C. E. 659 405 
 
 City of Newbern, Boyle v 64 N. C. E. 664 410 
 
 City of Newbern, McLin v 70 N. C. E. 12 471 
 
 City of Newbern, Smith v 70 N. C. E. 14 471 
 
 City of Wilmington, Weithv... 68 N. C. E. 24 57 160 470 
 
 Clark, Finch v Phil. L. E. 355 474 
 
 Clark v. Clark 64 N. C. E. 150 37 
 
 Clark v. Clark, 65 N. C. E. 655 151 189 367 
 
 Clark, Simonton v 65 N. C. E. 525 327 
 
 Clark v. Stanly 66 N. C. E. 59 347 
 
 Clark, Holland v 67 N. C. E. 104 363 
 
 Clark, McDowell v 68 N. C. E. 118 188 450 
 
XII NAMES OF CASES. 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Clarke, Austin v 70 N. C. R 458 25 
 
 Clarke v. Wagoner, 70 N. C. R. 706 63 137 
 
 Clarke v. Williams 70 N. C. R. 679 462 
 
 Clayton v. Jones 68 N. C. R. 497 346 366 
 
 Clayton, Lusk v 70 K C. R. 184 30 
 
 Clegg v. N. Y. Soapstone Co., . . 66 N. C. R. 391 287 
 
 Clegg v. N. Y. Soapstone Co., . . 67 N. C. R. 302 288 
 
 Clements v. Mitchell Phil. Eq. R. 3 161 352 
 
 Clemmons v. Hampton 64 N. C. R. 264 409 
 
 Clemmons v. Hampton, 70 N. C. R. 534 67 
 
 Clerk's Office v. Bank of Cape 
 
 Fear, 66 N. C. R. 214 46 113 
 
 Clerk's Office v. Huffstetter, .... 67 N. C. R. 449 114 
 
 Clodfelter v. Bost, 70 N. C. R. 733 228 
 
 Coates, Dowd v 67 N. C. R. 273 122 
 
 Cobb v. Cromwell Phil. Eq. R. 18 96 
 
 Cobb v. Hardin, 67 N. C. R. 472 229 391 443 
 
 Cobb, Love v • 63 N. C. R. 324 99 109 365 
 
 Cobb v. Taylor, • • • • 64 N. C. R. 193 78 
 
 Coble, Rose v Phil. L. R. 517 144 378 
 
 Coble, Smith v Phil. Eq. R. 332 98 
 
 Coble, Shawv 63 N. C. R. 377 220 
 
 Cocke, Carter v 64 N. C. R. 239 475 
 
 Cockran, Deel v 66 N. C. R. 269 461 
 
 Coffield, Jordan v 70 N. C. R. 110 261 
 
 Cogdell v. Exum, 69 N. C. R. 464 14 47 
 
 Cogdell, Moye v 66 N. C. R. 403 390 
 
 Cogdell, Moye v 69 K C. R. 93 42 
 
 Cohen,Bearv 65 N. C. R. 511 38 290 
 
 Cohen, Seymour v 67 N. C. R. 345 346 
 
 Cohen, Marsh v 68 N. C. R. 283 417 
 
 Cohen, Salisbury v 68 N. C. R. 289 418 
 
 Cohn v. Chapman Phil. Eq. R. 92 97 437 
 
 Cole, Long v 66 N. C. R. 381 377 
 
 Cole, Worthy v 69 N. C. R. 157 461 
 
 Coleman v. Coleman Phil. Eq. R. 43 214 
 
 Collier v. Arrington, Phil. L. R. 356 1 
 
 Collier, Kornegay v 65 N. C. R. 69 425 
 
 Collier v. Gilbert 65 N. C. R. 135 416 
 
 Collins v. Collins, Phil. Eq. R. 153 240 
 
 Collins, State v 70 N. C R. 241 260 307 
 
 Colsonv. Martin Phil. Eq.R. 125 112 196 239 
 
 Colvord v.Monroe, 63 N. C. R. 288 243 
 
 Combs v. Harshaw, 63 N. C. R. 198. 109 
 
 Com'rs of Washington, Brown v. 63 N. C. R. 514 156 401 
 
NAMES Otf OASES. XIII 
 
 NAMK8 OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Com'rs of Kockingham, Broad- 
 
 nax v 64 N. C. R. 244 87 
 
 Com'rs of Cleaveland, Carson v. 64 N. C. R. 566 330 409 
 
 Com'rs of Catawba, Setzer v. ... 64 N. C. R. 516 409 
 
 Com'rs of Cleaveland, Pegram v. 64 N. C. R. 557 88 330 
 
 Com'rs of Richmond, Leak v... 64 N. C. R. 132 407 415 
 
 Com'rs of Perquimans, Winslow v 64 N. C. R. 218 342 
 
 Com'rs of Chatham, Love v 64 N. C. R. 706 115 366 
 
 Com'rs of Cleaveland, Pegram v 65 N. C. R. 114 330 
 
 Com'rs of Lincoln, King v 65 N. C. R. 603 89 
 
 Com'rs of Cumberland, Lutterloe 65 N. C. R. 493 331 
 
 Com'rsof Richmond, Burroughsv 65 N. C. R. 234 272 
 
 Com'rs of Chatham, Sedbury v. 66 K C. R. 486 381 
 
 Com'rs of Carteret, Thomas v. . 66 N. C. R. 522 333 
 
 Com'rs of Wake, Pullen v 66 N. C. R. 361 464 
 
 Com'rs of McDowell, Alexander, 67 N. C. R. 330 333 
 
 Com'rs of Cherokee, Green v. . . 67 N. C. R. 117 116 
 
 Com'rs of Forsythe, Hill v 67 N. C. R. 367 115 
 
 Com'rs of Cleaveland, Johnston v 67 K C. R. 101 333 
 
 Com'rs of Jackson v. Addington, 68 N. C. R. 254 18 
 
 Com'rs of Salisbury, Shaver v. . 68 N. C. R. 291 471 
 
 Com'rs of Forsythe v. Blackburn 68 N. C. R. 406 11 300 415 
 
 Com'rs of Raleigh, Pullen v . . . . 68 N. C. R. 451 470 
 
 Com'rs of Bladen, Jones v 69 N. C. R. 412 373 
 
 Com'rs of Cumberland, Lilly v. 69 N. C. R. 300 465 
 
 Com'rs of Granville v. Ballard, . 69 N. C. R. 18 116 458 
 
 Com'rs of Orange, Ruffin v 69 N. C. R. 498 465 
 
 Com'rs of Alamance, Moore v. . 70 N. C. R. 340 114 
 
 Com'rs of Catawba v. Setzer .... 70 N. C. R. 426 356 
 
 Com'rs of Craven, Street v 70 N. C. R. 644 116 466 
 
 Com'rs of Currituck, Brothers v. 70 N. C. R. 726 466 
 
 Com'rs of Davidson, Lowe v . . . . 70 N. C. R. 532 268 
 
 Com'rs of Franklin, Uzzell v.. . . 70 N. C. R. 564 334 
 
 Com'rs of Henderson v. Com'rs 
 
 of Rutherford 70 N. C. R. 657 373 
 
 Com'rs of Jones, Haughton v. . . 70 N. C. R. 466 466 
 
 Com'rs of McDowell, Alexan- 
 der v 70 N. C. R. 208 57 
 
 Com'rs of Rutherford, Steele v. . 70 N. C. R. 137 373 
 
 Com'rs of Rutherford, Com'rs ot 
 
 Henderson v 70 N. C. R. 657 373 
 
 Com'rs of Beaufort, Reiger v. . . 70 N. C. R. 319 471 
 
 Com'rs of Beaufort v. Webb, . . . 70 N. C. R. 307 334 
 
 Com'rs of Wilkes, Edwards v. . . 70 N. C. R. 571 334 373 
 
 Coniglaud v. Insurance Co., Phil. Eq. R. 341 1H 
 
XIV FAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Conley, Kincaid v Phil. Eq. E. 270 ' 301 
 
 Conley, Kincaid v 64 N. C. E. 387 188 302 
 
 Conley, Jenkins v 70 N. C. E. 353 337 
 
 Conoley v. McQnigg 64 N. 0. E. 662 471 
 
 Conrad, Flynt v Phil. L. E. 190 142 
 
 Cooke v. Cooke, Phil. L. E. 583 238 348 
 
 Cooke, State v Phil. L. E. 535 256 
 
 Cooke, Donnel v 63 N. C. E. 227 202 365 
 
 Coon v. N. C. E E. Co., 65 N. C. E. 507 411 
 
 Cooper v. Cannon Phil. Eq. E. 83 314 
 
 Cooper, Caroon v 63 N. C. E. 386 489 
 
 Cooper, Cowles v 69 N. C. E. 406 281 
 
 Cooper, Gray v 65 N. C. E. 183 149 
 
 Cooper, Vest v 68 N. C. E. 131 420 
 
 Coor v. Spicer, 65 N. C. B. 401 483 
 
 Cornelius, Morrison v 63 N. C. E. 346 3 19 
 
 Corpening, Briant v Phil. Eq. E. 325 214 
 
 Costen, Cape Fear & D. E. N. 
 
 Co. v 63N.C.B.264 19 111 
 
 Cotton Ex parte Phil.Eq.E. 79 437 45® 
 
 Cotton. Mayhoe v 69 N. C. E. 289 235 
 
 Caughlan v White, 66 N. C. E. 102 180 
 
 Council v. Eivers, 65 N. C. E. 54 438 
 
 Council, Williams v 65 N. C. B. 10 401 
 
 Council v. Willis, 66 N. C. E. 359 287 
 
 Covington v. Ingram, 64 N. C. B. 123 377 
 
 Covington v. Wall, 65 N. C. E. 594 223 
 
 Covington v. Leak, 67 N. C. E. 363 224 
 
 Covington, State v 70 N. C. E. 71 209 
 
 Cowan, Crook v 64 N. C. E. 743 106 
 
 Cowan, Jurnsey v 67 N. C. E. 393 480 
 
 Cowles v. Haynes 67 N. C. E. 128 17 417 
 
 Cowles, Atlantic & N. C. E. E. 
 
 Co. v 69 N. C. E. 59 61 462 
 
 Cowles v. Cooper, 69 N. C. E. 406 282 
 
 Cowles, Stokes v 70 N. C. E. 124 81 
 
 Cox v. Gray, Phil. L. E. 488 139 
 
 Cox, Stickney v Phil. L. E. 495 17 
 
 Cox, Atkinson v 64 N. C. E. 576 285 
 
 Cox v. Hamilton 69 N. C. E. 30 143 
 
 Cox v. Long 69 N. C. E. 7 488 
 
 Cox v. Peebles, 70 N. C. E. 10 228 
 
 Craige, Hall v 65 N. C. E. 51 274 355 419 
 
 Craige, Neely v Phil. L. E. 187 281 
 
 Craige, Hall v 68 N. C. E. 305 280 
 
NAMES OF OASES. XV 
 
 NAMES OP PARTIES. REPORTER. PAGE OF DIGEST . 
 
 Craigmiles, Aston v 70 N. C. E. 316 345 399 
 
 Crawford v. Bank of Wilming'n, Phil. L. E. 136 48 111 382 
 
 Crawford, Johnston v Phil. L. E. 342 147 
 
 Crawford v. McAdams 63 N. C. E. 67 376 
 
 Crawford v. Woody, 63 N. C. E. 100 99 
 
 Crawford v. Dalrymple, 70 K C. E. 316 450 
 
 Crawford v. Lytic, 70 N. C. E. 385 56 
 
 Creycroft v. Morehead, 67 N. C. E. 422 241 268 
 
 Credle, Myers v 63 N. C. E. 504 426 
 
 Credle, State v 63 N. C. E. 506 20 
 
 Credle v. Swindell, 63 N. C. E. 305 5 
 
 Credle v. Carawan, *fc . 64 N. C. E. 422 240 
 
 Credle v. Gibbs, 65 N. C. E. 192 89 
 
 Creecy v. Pearce, 69 N. C. E. 67 492 
 
 Crews v. Crews, 64 N. C. E. 536 374 
 
 Crisp v.Love, 65 N. C. B. 126 28 
 
 Critcher, Hicks v Phil. L. E. 353 35 392 
 
 Critcher v. McCaden 64 N. C. E. 262 416 
 
 Critcher v. Holloway, 64 N. C. E. 526 409 
 
 Critcher v. Hodges, 68 N. C. E. 22 344 
 
 Crocker, Ex parte, 63 JS. C. E. 652 128 
 
 Cromartie v. Kemp, 66 N. C. E. 382 126 
 
 Cromwell, Cobb v Phil. Eq. E. 18 96 
 
 Cromwel., Norfleet v 64 N. C. E. 1 135 
 
 Cromwell, Norfleet v 70 N. C. E. 634 118 135 
 
 Cronly v. Murphy 64 N. C. E. 489 175 
 
 Cronly v.Hall, 67 N. C. E. 9 55 
 
 Crook v. Cowan 64 N. C. E. 743 106 
 
 Croom v. Morisey 63 N, C. E. 591 404 
 
 Cross, Johnson v 66 N. C. E. 167 233 
 
 Crummen v. Bennet 68 N. C. E. 494 235 
 
 Crump v. Mims, 64 N. C. E. 767 71 427 
 
 Crump v. Faucet, 70 N. C. E. 345 127 
 
 Culbreth, McKenzie v 66 N. C. E. 534 2 
 
 Culver v. Eggers, 63 N. C E. 630 100 349 
 
 Cummings v. Mebane, 63 N. C. E. 315 76 
 
 Cummings, Blackwell v 68 N. C. E. 121 341 
 
 Cunningham v. South. Ex. Co., 67 N. C. E. 425 405 
 
 Cureton, Davis v 70 N. C. E. 667 492 
 
 Currin, Eagland v 64 N. C. E. 355 7C 301 
 
 Custer, State v 65 N. C. E. 339 483 
 
 Cuthbertson, Martin v 64 N. C. E. 328 44 
 
 Dalby, Winston v 64 N. C. E. 299 117 
 
 Dalrymple, Crawford v 70 N. C. E. 156 450 
 
 Dalton, Pendleton v Phil. Eq. E. 1 19 97 
 
XVI NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Dalton, Pendleton v 64 N. C. R. 329 265 
 
 Dalton, Houston v 70 N. C. R. 662 3 
 
 Dancy v. Braswell, 64 N. C. R. 102 441 
 
 Dancy v. Pope, 68 N. C. R. 147 200 
 
 Dancy v. Smith, 68 N. C. R. 179 361 
 
 Daniel, Bynum v 63 N. C. R. 24 387 
 
 Darr, State v 63 N. C. R. 516 113 
 
 Darwin v. Rippy, 63 N. C. R. 318 (See Errata.) 
 
 Dashiel, Davis v Phil. L. R. 114 463 
 
 Davidson, Mayhew v Phil. Eq. R. 47 320 
 
 Davidson v. Elms, 66 N. C. R. 228 361 
 
 Davidson, State v 66 N. C. R. 119 151 
 
 Davidson, Bank of Charlotte v. . 70 N. C. R. 118 469 
 
 Davidson, Hayes v 70 N. C. R. 573 . 75 
 
 Davidson College, Young v Phil. Eq. R. 261 .835 351 
 
 Davis v. Dashiel, Phil. L. R. 114 463 
 
 Davis v. Shaver, Phil. L. R. 18 282 401 
 
 Davis, Chambers v Phil. Eq. R. 152 314 
 
 Davis v. Atkinson, 63 N. C. R. 210 (See errata.) 
 
 Davis, Wilmington v 63 N. C. R. 582 455 
 
 Davis, State v 63 N. C. R. 578 163 
 
 Davis, Wadsworth v 63 N. C. R. 251 385 
 
 Davis v. Harris, 64 N. C. R. 574 119 
 
 Davis v. Hedgececk, 64 N. C. R. 650 292 
 
 Davis v. Lassiter, 64 N. C. R. 498 215 
 
 Davis v. Morgan, 64 N. C. R. 570 54 
 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 Dav 
 
 s, Battle v 66 N. C. R. 252 304 
 
 s, McMillan v 66 N. C. R. 539 105 
 
 s v. Baker, 67 N. C. R. 388 137 
 
 s, Poindexterv 67 N. C. R. 112 58 
 
 s, Reiger v 67 N. C. R. 185 217 396 
 
 s v. Davis, 68 N. C. R. 180 134 
 
 State v 68 N. C. R. 297 428 
 
 s, State v 65 N. C. R. 298 294 
 
 s, Boyleston In. Co. v 68 N. C. R. 17 467 
 
 s, Hix v 68 N. C. R. 231 274 
 
 s v. Fox, 69 N. C. R. 435 226 
 
 s v. Parker, 69 N. C. R. 271 131 
 
 s, Phillips v 69 N. C. R. 117 59 124 178 194 
 
 s, Shelton v 69 N. C. R. 324 358 
 
 s, (Ben) State v 69 N. C. R. 313 212 259 
 
 s, (Harvy) State v 69 N. C. R. 495 251 357 
 
 s, (Mat) State v 69 N. C. R. 383 357 
 
 s v Cureton, 70 N. C. R. 667 493 
 
 s, Boylston In. Co. v 70 N. C. R. 485 120 
 
KAMKS OF OASES. 
 
 XVII 
 
 NAMES OF PARTIES. REPORTER. 
 
 Davis, Johnston v 70 N. C. R. 581 . 
 
 Dawson, Petteway v 64 N. C. R. 450. 
 
 Dawson, Flack v 69 N. C. R. 42. 
 
 Day v. Adams, 63 N. C. R. 254 
 
 Deal, State v 64 N. C. R. 270 
 
 Deal v. Cochran, 66 N. C. R. 269 . 
 
 Deal v. Palmer, 68 N. C. R. 215 . 
 
 R. 
 R. 
 
 496.. 
 
 572 . 
 R. 428.. 
 R. 653.. 
 
 300 . 
 
 Deaton, State v 66 N. C 
 
 Dearer, State v 65 N. C 
 
 Deaver v. Keith, Phil. L. 
 
 Deep River M. Co., Martin v. . . 64 N. C 
 Deep River M. Co. v. Martin, . . 70 N. C. R 
 
 Bellinger v. Tweed, 66 N. C. R. 206 
 
 Den v. Love, Phil. L. R. 435 
 
 Deloach, Vaughan v 65 N. C. R. 378 
 
 DeRosset v. Bradley, 63 N. C. R. 17 
 
 Derr v. Wilson, 69 N. C. R. 137 
 
 Dcvereux, Hyman v 65 N. C. R. 
 
 Devereux, Hyman v 63 N. C. R. 
 
 Devries v. Phillips 63 N. C. R. 
 
 Devries v. Haywood, 63 N. C. R. 
 
 Devries v. Haywood, 64 N. C. R. 
 
 Dewey, Smith v 64 N. 
 
 Dewey v White, 65 N, 
 
 Dewey, Isler v 67 N, 
 
 Dick v. Dickson, 63 N 
 
 Dick v. McLaurin, 63 N, 
 
 Dickson, Dick v 63 N. 
 
 Dickson, Lattimore v 63 N. C 
 
 Dickson v. Dickson, 70 N. 
 
 Divine, State v 69 N. 
 
 Dixon v. Pace, 63 N. 
 
 Dixon, Kirkham v 65 N. 
 
 Dixon, Lattimore v 65 N. C. R. 
 
 Dixon, Williams v 65 N. C. R. 
 
 Dixon, Kirkham v 66 N. C. R. 
 
 Doak, McCnllock v 68 N. C. R. 267 . 
 
 Dobbins v. Osborne 67 N. C. R. 259 . 
 
 Dobson v. Key, Phil. Eq. R. 170. 
 
 Dobson, Harshaw v 64 N. C. R. 384. 
 
 Dobson, Halyburton v 65 N. C. R. 88 . 
 
 Dobson, State v 05 N. C. It. 346. 
 
 Dobson, Harshaw v 67 N. C. R. 203 . 
 
 Dockery v. French, (59 N. C. R. 308 . 
 
 Dodd, Ex parte Phil. Eq. R. 97. , 
 
 C 
 C 
 C 
 C 
 C 
 C, 
 
 588. 
 624. 
 207. 
 53 
 83. 
 R. 463. 
 R. 225 . 
 93. 
 488. 
 185. 
 488. 
 356. 
 
 E. 
 R. 
 R. 
 B. 
 
 R. 
 
 C. R. 487 
 C. R. 390 
 C. R. 
 C. R. 
 
 PAGE OF DIGEST. 
 
 300 
 
 42 
 
 362 421 
 
 41 
 
 429 
 
 461 
 
 288 346 
 
 244 
 
 63 
 
 40 
 
 285 
 
 289 
 
 233 
 
 1 
 
 191 
 
 459 
 
 162 
 
 269 338 419 
 
 380 
 
 153 
 
 214 387 
 
 101 
 
 2(6 
 
 451 
 
 154 
 
 283 
 
 283 
 
 283 
 
 142 366 
 
 131 
 
 24 
 
 9 
 
 113 
 
 386 
 
 473 
 
 299 
 158 
 338 
 
 603 
 
 179 
 
 664 
 
 416 
 
 406 (see errata.) 
 
 155 
 
 289 
 149 
 
 343 
 224 
 262 
 125 
 149 
 426 
 217 
 268 
 437 
 
XVIII NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST, 
 
 Dodd, Watson v 68 N. C. K. 528 178 
 
 Dodson v. Moore 64 N. C. R. 512 107 
 
 Doe v. Hassell, 68 N. C. R. 213 439 
 
 Doe v. McLeod 70 N. C. R. 364 137 
 
 Dollar, State v 66 N. 0. R. 626 495 
 
 Donnell v. Cooke, 63 N. C. R. 227 202 365 
 
 Donnell v. Donnell Phil. Eq. R. 148 474 
 
 Donoho v. Patterson, 70 N. C. R. 649 195 
 
 Dortch, Ward v 69 N. C. R. 277 481 
 
 Dougherty v. Logan, 70 N. C. R. 558 278 
 
 Douglass, State v 63 N. C. R. 500 284 306 
 
 Douglass v. Caldwell, 64 N. C. R. 372 380 
 
 Douglass v.*Caldwell, 65 N. C. R. 248 424 
 
 Dowd v. Coates, 67 N. C. R. 273 122 
 
 Dowd v. N. C. R. R. Co., 70 N. C. R. 468 81 
 
 Downs, Teague v 69 N. C. R. 280 241 
 
 Dozier v. Grandy, 66 N. C. R. 484 126 
 
 Drake, State v 64 N. C. R. 589 248 301 
 
 Dudley, Taylor v 70 N. C. R. 146 156 
 
 Dula, State v Phil. L. R. 211 166 
 
 Dula, State v Phil. L. R. 437 167 255 
 
 Dula v Young, 70 N. C. R. 450 400 481 
 
 Dulin v. Howard, 66 N. C. R. 433 292 
 
 Dumas, Heilig v 65 N. C. R. 214 154 
 
 Dumas, Heilig v 69 N. C. R. 206 155 
 
 Duncan v. Philpot, 64 N. C. R. 479 452 
 
 Dunlap, State v 65 N. C. R. 491 253 
 
 Dunlap, State v 65 N. C. R. 288 170 394 
 
 Dunn Ex parte, 63 N. C. R. 137 493 
 
 Dunn v Nichols, 63 N. C. R. 107 180 
 
 Duvall v. Rollins, 68 N. C. R. 220 234 
 
 Eacker, Womack v Phil. Eq. R. 161 213 
 
 Eagin v. Musgrove, Phil. L. R. 13 384 
 
 Earl v. Bryan, Phil. Eq. R. 278 214 
 
 Earnhardt, McCorkle v Phil. L. R. 300 484 
 
 Earnhardt, Sowers v 64 N. C. R. 96 440 
 
 Earp, Hastings v Phil. Eq. R. 5 322 
 
 Eason v. Sanders 65 N. C. R. 216 377 419 
 
 Eason, State v 70 N. C. R. 88 210 
 
 Echard, Reitzel v 65 N. C. R. 673 491 
 
 Edmiston, Moore v 70 N. C. R. 510 345 359 
 
 Edmonds, Harvey v 68 N. C. R. 243 282 
 
 Edwards v. Edwards, Phil. L. R. 534 132 
 
 Edwards, Haywood v Phil. L. R. 350 472 
 
 Edwards, Norton v 66 N. C. R. 367 193 
 
NAMES OF CASES. XIX 
 
 NAMES OF PARTIES. REPORTER. 
 
 Edwards v. Com'rs of Wilkes, . . 70 N. 0. E. 571 .. . 
 
 Eggers, Culver v 63 N. C. R. 630. . . 
 
 Elam, State v Phil. L. R. 460. . . 
 
 Elias, Homesley v 66 N. C. R. 330. . . 
 
 Ellen, State v 68 N. C. R. 281 
 
 Elliott, Kerr v Phil. L. R. 601 .. . 
 
 Elliott, State v Phil. L. R. 104 . . 
 
 Elliott v. Logan, Phil. Eq. R. 163. . . 
 
 Elliott, Scott v 63 N. C. R. 215 . . , 
 
 Elliott, Felton v 66 N. C. R. 195. . . 
 
 Elliott, State v 68 N. C. R. 124 
 
 Elliott v. Roberts, 70 N. C. R. 181 . . 
 
 Ellis v. Hussey, 66 N. C. R. 501 . . . , 
 
 Ellis v. Institution for Deaf and 
 
 Dumb, 68 N. 0. R. 423..., 
 
 Elms, Davidson v 67 N. C. R. 228 
 
 Emerson v. Mallett, Phil. Eq. R. 234 ... . 
 
 Engelhard, Mabry v 67 N. 0. R. 877 ... . 
 
 Erwin v. Lowery, 64 N. C. R. 821 . . . . 
 
 Erwin v Lawerance, 64 N. C. R. 483 
 
 Erwin v Western N. C. R R. Co., 65 N. C. R. 79 . . . 
 
 Erwin v Lawerance, 70 N. C. R. 282 
 
 Estis v. Hartley, Phil. Eq. R. 167 ... . 
 
 Etheridge, Capehart v 63 N. C. R. 353 . . . . 
 
 Etheridge v. Vernoy, 70 N. C. R. 713 . . . . 
 
 Eubanks v. Mitchell. 67 N. C. R. 34 
 
 Evans, Broadusv 63 N. C. R. 633 
 
 Evans v. Singletary, 63 N. 0. R. 205. . . . 
 
 Evans, State v 69 N. C. R. 40. . . . 
 
 Excelsior Oil Co., Mixer v 63 K C. R. 552 
 
 Exch. Bnk of Columbia v.Tiddy, 67 N. C. R. 169 ... 
 
 Exum, Cogdell v 69 N. C. R. 404. . . . 
 
 Faircloth v. Ferrell 63 N. C. R. 640 
 
 Fairly, Wall v 66 N. C. R. 385 ... 
 
 Fairly, Wall v 70 N. C. R. 537.. . . 
 
 Falkner v Hunt, 68 N. C. R. 475 .. . 
 
 Falls v. McCulloch Phil. Eq. R. 140 ... 
 
 Falls, Lusk v 63 N. C. R. 188. .. . 
 
 Falls v. Gamble 66 N. C. R. 455. .. . 
 
 Fann, State v 65 N. C. R. 317 (see errata.) 
 
 Farmer, Johnson v 69 N. C. R. 542 % 28 
 
 Farmer, Reed v 69 N. C. R. 539 ' 28 
 
 Farmer's Bank v. Glenn, 68 N. C. R. 35 118 300 
 
 Farmer's Bank, Glenn v 70 N. C. R. 191 56 384 399 
 
 Farrell, Johnson v 64 N. C. R. 266 318 
 
 lGE op digest. 
 
 334 
 
 373 
 
 100 
 
 349 
 
 
 51 
 
 
 119 
 
 
 209 
 
 
 136 
 
 
 473 
 
 
 218 
 
 
 425 
 
 22 297 
 
 492 
 
 
 172 
 
 
 105 
 
 
 340 
 
 
 270 
 
 
 361 
 
 
 76 
 
 
 81 
 
 367 
 
 386 
 
 
 161 
 
 
 103 
 
 
 2 
 
 
 213 
 
 77 
 
 264 
 
 
 5 
 
 
 391 
 
 
 354 
 
 
 190 
 
 
 251 
 
 
 45 
 
 50 
 
 313 
 
 
 14 
 
 
 180 
 
 
 139 
 
 
 14 
 
 11 24 
 
 392 
 
 
 320 
 
 
 452 
 
 143 
 
 161 
 
XX "NAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Farrow, State v Phil. L. R. 161 309 
 
 Faucette, Bryan v 65 N. C. R. 650 175 
 
 Faucett, Crump v 70 N. C. R. 345 127 
 
 Faulk, McKinnon v 68 N. C. R. 279 14 
 
 Fearington, Carr v 63 N. C. R. 560 328 
 
 Feimster v. Johnston, 64 N. C. R. 259 208 
 
 Fell v. Porter 69 N. C. R. 140 293 
 
 Fels, Sheltonv Phil. L. R. 178 182 
 
 Felton, Madre v Phil. L. R. 279 457 
 
 Felton v. Elliott, 66 N. C. R. 195 22 297 492 
 
 Felton v. Hales, 67 N. C. R. 107 44 
 
 Fenner, Winslow v Phil. L. R. 565 35 
 
 Fentress v. Brown, Phil. L. R. 373 81 
 
 Fentress, Hook v Phil. Eq. R. 229 301 484 
 
 Ferebee v. Home In. Co., 68 N. O. R. 11 157 270 
 
 Ferebee, Grandy v 68 N. C. R. 356 6 159 161 
 
 Ferguson v. Hass, Phil. Eq. R. 113 359 376 389 
 
 Ferguson v. Hass, 64 N. C. R. 772 476 
 
 Ferguson, State v 67 N. C. R. 219 244 453 
 
 Ferrall. Harman v 64 N. C. R. 474 126 342 
 
 Ferrell v. Boykin, Phil. L. R. 9 26 
 
 Ferrell, Faircloth v 63 N. C. R. 640 180 
 
 Fike v. Green 64 N. C. R. 665 197 
 
 Finch v. Clark Phil. L. R. 335 474 
 
 Finch, Wilkins v Phil. Eq. R. 355 . ... 196 
 
 Finger v. Finger 64 N. C. R. 183 190 302 
 
 Finger, Keener v 70 N. C. R. 35 25 203 
 
 Fish, Long v 70 N. C. R. 674 11 338 
 
 Fisher v. Ritchey 64 N. C. R. 172 408 
 
 Fisher, State v 70 N. C R. 78 313 
 
 Flack, Dawson v 69 N. C. R. 42 362 421 
 
 Flanner, Wright v 64 N. C. R. 510 197 
 
 Flemming v. Flemming, 63 N. C. R. 209 494 
 
 Flemming, Kingsbury v 66 N. C. R. 524 55 
 
 Flemming, Walker v 70 N. C. R. 483 413 
 
 Flora, Parker v 63 N. C. R. 474 57 
 
 Floyd v. Herring, 64 N. C. R. 409 126 185 186 
 
 Flynt v. Conrad Phil. L. R. 190 142 
 
 Foard v. Alexander, 64 N. C. R. 69 185 
 
 Foard, Heileg v 64 N. C. R. 710 296 299 
 
 Fol# v. Comm'rs of Pitt, 65 N. C. R. 25 447 
 
 Fontaine v. Westbrook, 65 N. C. R. 528 279 
 
 Forbes, Whitaker v 68 N. C. R. 228 364 
 
 Ford, Trammel v Phil. Eq. R. 339 387 
 
 Foreman v. Bibb, 65 N. C. R. 128 278 
 
NAMES OF CASES. XXI 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Forsythe, Waller v Phil. Eq. R. 353 315 
 
 Port v. Bank of Cape Fear, .... Phil. L. R. 417 48 
 
 Fortune, Jones v 69 N. C. R. 322 139 
 
 Foster v. Woodfin, 65 N. C. R. 29 11 
 
 Foushee v. Pattershol, 67 N. C. R. 453 23 392 
 
 Foust v. Shoffner Phil. Eq. R. 242 98 
 
 Foust, Brown v 64 N. C. R. 672 442 
 
 Foust v. Stafford, 70 N. C. R. 115 345 
 
 Fowler, Bryan v 70 N. C. R. 596 4 
 
 Foy, Whitford v 65 N. C. R. 265 222 
 
 Foy, Bunting v 66 N. C. R. 193 3G0 389 492 
 
 Foy, Isler v 66 N. C. R. 547 139 216 308 423 
 
 Foy, Bryan v 69 N. C. R. 45 3 
 
 Foy, Morehead v 69 N. C. R. 512 373 
 
 Foy, Utleyv 70 N. C. R. 303 25 GO 372 
 
 Fox, Davis v 69 N. O. R. 435 226 
 
 Fraley v. Kelly, 67 N. C. R. 78 46 
 
 Fraley v. March, 68 N. C. R. 160 373 
 
 Frankford v. Atlantic Bank, Phil. L. R. 199 12 381 
 
 Franklin, Wilson v 63 N. C. R. 259 40G 
 
 Franklin v. Yannoy, 66 N. C. R. 145 16 
 
 Freeman, McMinn v 68 N. C. R. 341 57 
 
 Freeman, State v 66 N. C. R. 647 258 
 
 French, Dockery v 69 N. C. R. 308 268 
 
 Frey v. Ramsour 66 N. C. R. 466 145 479 
 
 Froelick v. South. Express Co., 67 N. C. R. 1 (see errata.) 
 
 Fronaberger, Hood v 63 N. C. R. 35 350 
 
 Fronaberger v. Lee, G6 N. C. R. 333 292 
 
 Fronaberger v. Lewis, 70 N. C. R. 456 188 422 
 
 Frost v. Naylor 68 N. C. R. 325 234 
 
 Fnlford, State v Phil. L. R. 563 309 
 
 Fulghuni, Spicer v 67 N. C. R. 18 (see errata.) 
 
 Fulkerson, State v Phil. L. R. 233 236 254 
 
 Fuller, Gibbs v 66 N. C. R. 116 2S0 
 
 Fnlton v. Loffn 63 N. C. R. 393 215 
 
 F.ilton, State v 66 N. C. R, 632 306 
 
 Furman v. Moore, 64 N. C. R, 358 197 
 
 Furniss, Church v 64 N. C. R. 659 405 
 
 Fntrell v. Spivey, 63 N. C. R. 526 19 
 
 Gaines, Herrin v 63 N. C. R, 72 99 
 
 Gainey v. Hays, 63 N. C. R. 497 158 
 
 G liilierv. Gibson, Phil. L. R. 530 120 
 
 Gaither v. Gibson, 63 N. C. R. 93 385 
 
 Galbraith, Taylor v 65 N. C. R. 409 82 
 
 Galloway^v. Jenkins, 83 N. C. R. 147 84 
 
XXII NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. 
 
 Gamble, Falls v 66 N. C. R. 455 . . 
 
 Gardner v. Hall, Phil. L. R. 21 . . . 
 
 Gardner, Rowland v 69 N. C. R. 53 . . . 
 
 Garibaldi v. Hallowell, 68 N. C. R. 257 . . . 
 
 Garrett v. Smith, 64 N. C. R. 93 . . . 
 
 Garrett v. Trotter, 65 N. C. R. 439 . . . 
 
 Garrett v. Cheshire, 69 N. C. R. 396 . . 
 
 Gashine v. Baer, 64 N. C. R. 108 . . . 
 
 Gaskill, Whitehurst v 69 N. C. R. 449 . . . 
 
 Gaskins, State v 65 N. C. R. 320 
 
 Gaskins, Price v Phil. Eq. R. 224 .. . 
 
 Gaston, Rowark v 67 N. C. R. 291 . . . 
 
 Gatling, Smith v 64 N. C. R. 291 .. . 
 
 Gatling, Wiley v 70 N. C. R. 410. . . 
 
 Gee v. Hines, Phil. Eq. R. 315 .. . 
 
 George, Womble v 64 N. C. R. 759 
 
 Ghormly v. Sherrill, . . 66 N. C. R. 527 .. . 
 
 Gibbs v. Gibbs, Phil. L. R. 471 .. . 
 
 Gibbs v. Fuller, 66 N. C. R. 116 
 
 Gibbs, Credle v 65 N. C. R. 192 .. . 
 
 Gibson, Gaither v. Phil. L. R. 530. . . 
 
 Gibson v. Groner, 63 N. C. R. 10 . . . 
 
 Gibson, Miller v 63 N. C R. 635 ... . 
 
 Gibson v. Smith, 63 N. C. R. 103 .. . 
 
 Gibson, Gaither v 63 N. C. R. 93 . . . 
 
 Gibson v. Pitts, 69 N. C. R. 155 . . 
 
 Gifford v. Betts, 64 N. C. R. 62. . . 
 
 Gilbert, Collins v 65 N. C. R. 135 .. . 
 
 Gilbraith v. Linebarger 60 N. C. R. 145 .. . 
 
 Giles, Hemphill v 66 N. C. R. 512 . . 
 
 Gillespie, Hall v 66 N. C. R. 256 . . . 
 
 Gilliam, Woodley v 64 N. C. R. 649 . . . , 
 
 Gilliam, McKoy v 65 N. C. R. 130 
 
 Gilliam, Woodley v 67 N. C. R. 237 
 
 Gilmer, Smith v 64 N. C. R. 546. . . . 
 
 Gilmer v McNairy, 69 N. C. R. 335 . . . , 
 
 Glenn v. Charlotte & S. C. R. 
 
 R. Co., 63 N. C. R. 510 
 
 Glenn, Farmer's Bank v 68 K C. R. 35 ... . 
 
 Glenn v. Farmer's Bank, 70 N. C. R. 191 . . . . 
 
 Glisson, State v Phil. L. R. 195 ... , 
 
 Gobble, Hedrick v Phil. L. R. 348 
 
 Gobble, Hedrick v 63 N. C. R. 48... 
 
 Godwin, Holmes v 69 N. C. R. 467. . . . 
 
 Goldsborough v. Turner, 67 N. C. R. 403 . . . 
 
 PAGE OP DIGEST. 
 
 143 
 
 161 
 
 
 82 
 
 362 
 
 385 
 
 
 321 
 
 
 407 
 
 
 365 
 
 
 235 
 
 
 37 
 
 
 465 
 
 
 311 
 
 
 326 
 
 
 114 
 
 
 281 
 
 
 400 
 
 
 328 
 
 
 198 
 
 
 303 
 
 
 220 
 
 
 280 
 
 
 89 
 
 
 120 
 
 
 181 
 
 
 458 
 
 
 99 
 
 
 385 
 
 
 194 
 
 
 101 
 
 
 416 
 
 6 8 
 
 354 
 
 
 340 
 
 
 315 
 
 
 138 
 
 
 478 
 
 
 448 
 
 
 490 
 
 
 159 
 
 72 
 
 393 
 
 118 
 
 300 
 
 56 384 
 
 399 
 
 
 217 
 
 
 136 
 
 
 152 
 
 66 
 
 344 
 
 6 391 
 
 486 
 
NAMES OE CASES. XXIIt 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Gooch, Kingsbury v 64 N. C. R. 528 374 409 
 
 Gooch v. Gregory, 65 N. C. R. 142 69 330 
 
 Goodwin, Rogers v 64 N. C. R. 278 21 343 
 
 Gore v. Mastin, 66 N. C. R 371 (see errata.) 
 
 Gorrell, Woodburne v 66 N. C. R. 82 242 
 
 Gneber, Long v 64 N. C. R. 431 239 
 
 Graham v. Charlotte & S. C. R. 
 
 R. Co., 64 N. C. R. 631 372 
 
 Graham, State v 68 N. C. R. 247 397 
 
 Grammar, Parker v Phil. Eq. R. 28 261 
 
 Granberry, Ivey v 66 N. C. R. 223 125 
 
 Grandy v. Sawyer, Phil. Eq. R. 8 314 
 
 Graudy, Dozierv 66 N. C. R. 484 126 
 
 Grandy v. Ferebee, 68 N. C. R. 356 6 159 161 
 
 Gray, Cox v Phil. L. R. 488 139 
 
 Gray v. Cooper, 65 N. C. R. 183 149 
 
 Gray.Oatesv 66 N. 0. R. 442 281 363 
 
 Green, Howze v Phil. Eq R. 250 263 
 
 Green, Waldrop v 63 N. C. R. 344 263 
 
 Green v. Brown, 64 N. C. R. 553 441 
 
 Green, Fike v 64 N. C. R. 665 197 
 
 Green, Horton v 64 N. C. R. 64 153 
 
 Green, Parham v 64 N. C. R. 436 460 
 
 Green, Whitesides v 64 N. C. R. 307 148 388 
 
 Green v. Moore, 66 N. C. R. 425 381 429 
 
 Green v. Wynne, 66 N. C. R. 531 307 
 
 Green, Horton v 66 N. C. R. 596 487 
 
 Green v. Com'rs of Cherokee, . . . 67 N. C. R. 117 116 
 
 Green, Williams v 68 N. C. R. 183 242 
 
 Green v. Green, 69 N. C R. 25 319 321 
 
 Green v. Green, 69 N. C. R. 294 421 
 
 Green v. Green, 69 N. C. R. 204 362 
 
 Green, Whitehurst v 69 N. C. R. 131 268 
 
 Green v. Castleberry, 70 N. C. R. 20 421 
 
 Greenlee v. Greenlee, 63 N. C. R. 593. 458 
 
 Greenlee v. Sudderth, 65 N. C. R. 470 78 177 
 
 Greenwood, Chambers v 65 N. C. R. 274 390 
 
 Gregory, Barham v Phil. Eq. R. 243 315 359 
 
 Gregory, Gooch v 65 N. C. R. 142 69 330 
 
 Gregory v. Gregory, 69 N. C. R. 522 352 492 
 
 Gril v. Vernon, 65 N. C. R. 76 286 
 
 Grier v. Bysaner, 63 N. C. R. 131 458 
 
 Grier v. Rhyne 67 N. C. R. 338 38 105 
 
 Grier, Overman v 70 N. C. &. 693 201 
 
 Griffin v. Griffin Phil. L. R. 167 210 
 
XXIV NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Griffis v. McNeil, Phil. L. R. 1 ^ 382 
 
 Griffis, Levy v 65 N. C. R. 238 477 
 
 Griffith, McOombs v 67 N. C. R. 83 442 
 
 Grissett v. Smith, Phil. L. R. 164 210 
 
 Grissett v. Smith, Phil. L. R. 297 401 
 
 Grissom v. Parish, Phil. Eq. R. 330 315 
 
 Grist, Marsh v Phil. Eq. R. 319 189 
 
 Grist, Haighfc v 64 N. C. R. 739 457 
 
 Grouer, Gibson v 63 N. C. R. 10 IfeA 
 
 Groom, Broadnax v 64 N. C. R. 244 [87 
 
 Gudger v. Baird, 66 N. C. R. 438 29 360 
 
 Gness v. McCauley, Phil. L. R. 514 136 
 
 Guion v. Melvin, 69 N. O. R. 212 405 481 
 
 Gulick, Russ v 64 N. C. R. 301 2C6 
 
 Gully v. Hollo way, 63 N. C. R. 84 321 
 
 Gupton, Jones v 65 N. C. R. 48 452 
 
 Guthrie, Mclntyre v 61 N. C. R. 104 335 
 
 Gwynn, State v Phil. L. R. 445 112 
 
 Haas, Ferguson v 64 N. C. R. 773 476 
 
 Hadley v. Nash, 69 N. C. R. 162 27S 486 
 
 Hagans v. Huffsteller, 65 K C. R. 443 78 
 
 Hager, Little v 67 N. C. R. 135 321 
 
 Hagler v. McCombs, 66 N. C. R. 345 202 204 205 300 
 
 Hager v. Nixon, 69 N. C. R. 108 235 
 
 Haight v. Grist, 64 K C. R. 739.. . ... 457 
 
 Hairston, State v 63 K C. R. 451 337 
 
 Halcyon, Steamboat Co., Rush v. 67 N. C. P. 47 23 
 
 Halcyon, Steamboat Co., Rush v 68 N. C. R. 72 IS 24 
 
 Hales, Applewhite v 65 N. C. R. 241 52 
 
 Hales, Felton v 67 N. C. R. 107 44 
 
 Haley v. Haley, Phil. Eq. R. 180 .... . 140 
 
 Hall, Gardner v Phil. L. R. 21 82 
 
 Hall v. Thorburn, Phil. L. R. 158 12 
 
 Hall v. Want, Phil. L. R. 502 127 
 
 Hall v. Gillespie, Phil. Eq. R. 256 315 
 
 Hall, Beard v 63 N. C. R. 39 438 
 
 Hall, Werst v 64 N. C. R. 43 60 
 
 Hall,Keslerv 64 N. C. R. 60 42 
 
 Hall v. Craige, 65 N. C. R. 41 271 2f 355 419 
 
 Hall, Walsh v 66 N. C. R. 233 216 371 
 
 Hall, Baird v 67 N. C. R. 230 80 
 
 Hall, Cronly v 67 N. C. R. 9 55 
 
 Hall v Craige, 68 N. C. R. 395 280 
 
 Halyburton v. Dobson, 65 N. C. R. 88 149 
 
 Hamby, Calloway v 65 N. C. R. 631 101 
 
NAMES OF CASES. XXV 
 
 NAMES OF PARTIES. REPORTER. 
 
 Hamilton, Little v Phil. L. R. 29 
 
 Hamilton, Myers v 65 N. C. R. 567 
 
 Hamilton, Justice v 67 N. C. R. Ill 
 
 Hamilton v. Cox, 69 N. C. R. 30 
 
 Hamlin, Reade v Phil. Eq. R. 128 
 
 Hampton v. Spainhour, 63 N. C. R. 569 
 
 Hampton, State v 63 N. C. R. 13 
 
 Hampton, Clemmons v 64 N. C. R 264 
 
 Hampton, Clemmons v 70 N. C. R. 534 
 
 Haney, State v 67 N. C. R. 467 
 
 Hanks, May v Phil. Eq. R. 310 
 
 Hanks, State v 66 N. C. R. 612 
 
 Hanner, Ramsay v 64 N. C. R. 668 
 
 Hardee v. Williams 65 N. C. R. 56 
 
 Hardie, Poe v 65 N. C. R. 447 
 
 Hardin v. Murray 68 N. C. R. 534 
 
 Hardin, Cablev 67 N. C. R. 472 
 
 Hardy v. Reynolds, 69 N. C. R. 5 
 
 Hare, Harrrll v 70 N. C. R. 658 
 
 Hargrove v. Smith Phil. Eq. R. 165 
 
 Hargrove, State v 65 N. C. R. 466 
 
 Hardey v. Houston 65 N. C. R. 113. .. . 
 
 Hargett, State v 69 N. C. R. 669 
 
 Harman v. Ferrall, 64 N. C. R. 474 . ... 
 
 Harper v. Spainhour, 64 N. C. R. 629 
 
 Harper v. Sudderth Phil. Eq. R. 279 
 
 Haper, State v 64 N. C. R. 129 
 
 Harrelson v. Pleasants, Phil. L. R. 365 
 
 Hnrrell v. Watson, 63 N. C. R. 454 
 
 Harrell v. Hare 70 N. C. EL 658 
 
 Harrington v. McLean, Phil. Eq. R. 258 .. . 188 
 
 Harrington, McFadgen v 67 N. C. R. 29 
 
 Harris, Minor v Phil. L. R. 322 
 
 Harris, Bunting v Phil. Eq. R. 11 
 
 Harris, Kilpatrick v Phil. Eq. R. 222 
 
 Harris, Bessent v 63 N. C. R. 542 
 
 Harris v. Hill 63 N. C. R. 653 
 
 Harris, State v 63 N. C. R. 1 
 
 Harris, Biggs v 64 N. C. R. 413 
 
 Harris v. Davis 64 N. C. R. 574 
 
 Harris, State v 64 N. C. R. 127 
 
 Harris v. Burwell 65 N. C. R. 584 
 
 Harris v. Johnson 65 N. C. R. 478 
 
 Harris, Jackson v 63 N. C. R. 261 
 
 Harris, Burns v 66 N. C. R. 509 
 
 4 
 
 PAGE OF DIGEST. 
 
 
 158 
 
 
 291 
 
 
 6 
 
 
 143 
 
 54 
 
 484 
 
 
 19 
 
 
 00 
 
 
 409 
 
 
 67 
 
 
 249 
 
 301 
 
 346 
 
 
 209 
 
 
 197 
 
 
 191 
 
 
 232 
 
 
 398 
 
 229 391 
 
 443 
 
 51 
 
 274 
 
 
 229 
 
 
 77 
 
 
 414 
 
 
 138 
 
 237 
 
 393 
 
 126 
 
 342 
 
 
 109 
 
 
 315 
 
 
 310 
 
 
 27 
 
 142 
 
 439 
 
 
 229 
 
 301 366 
 
 376 
 
 
 354 
 
 
 335 
 
 
 314 
 
 
 97 
 
 
 9 
 
 
 276 
 
 168 169 
 
 238 
 
 
 26 
 
 
 119 
 
 
 310 
 
 
 445 
 
 
 367 
 
 
 379 
 
 234 
 
 403 
 
XXVI NAMES OF OASES. 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Harris, Burns v 67 N. C. R. 140 234 
 
 Harris, Birdsey v 68 N. C. R. 92 288 
 
 Harris v. Carstaphen 69 N. 0. R. 416 228 
 
 Harris, Leach v 69 N. C. R. 532 28 
 
 Harris, Norwood v 69 N. C. R. 204 14 
 
 Harriss, Conoley v 64 N. C. R. 662 471 
 
 Harrison, Aycock v 63 N. C. R. 145 385 450 
 
 Harrison, Aycock v 65 N. C. R. 8 176 
 
 Harrison, Murphy v 65 N. C. R. 246 202 299 
 
 Harrison, Bryan v 69 N. C. R. 151 444 
 
 Harrison, State v 69 N. C. R. 143 212 
 
 Harrison, (Buck) State v 69 N. C. R. 264 398 
 
 Harshaw v. McCombs, 63 N. C. R. 75 214 
 
 Harshaw, Combs v 63 N. C. R. 198 109 
 
 Harsbaw v. Dobson, 64 N. C. R. 384 125 
 
 Harshaw v. Woodfin, 64 N. C. R. 568 215 370 
 
 Harshaw v. McKesson, 65 N. C. R. 688 6 102 
 
 Harshaw v. McKesson, 66 N. C. R. 266 339 
 
 Harshaw v. Dobson, 67 N. C. R. 203 217 
 
 Harston, State v 63 N. C. R. 294 147 
 
 Hart, Carlton v 63 N. C. R. 569 19 
 
 Hart, Lentile v 66 N. C. R. 421 402 
 
 Hart, Bank of Charlotte v 67 N. C. R. 264 50 
 
 Hartley v. Estes, Phil. Eq. R. 167 213 
 
 Hartsoe, Bland v 65 N. C. R. 204 192 199 
 
 Harvey, Swepson v 63 N. C. R. 106 160 385 
 
 Harvey, Swepson v 66 N. C. R. 436 368 
 
 Harvey, Swepson v 69 N. C. R. 387 369 
 
 Haskins v Royster, 70 N. C. R. 601 106 
 
 Hass, Ferguson v Phil. Eq. R. 113 359 376 389 
 
 Hassell, Ward v 66 N. C. R. 389 68 
 
 Hassell, Simmons v 68 N. C. R. 213 225 439 
 
 Hastings v. Earp, Phil. Eq. R. 5 322 
 
 Haughton, State v 63 N. C. R. 491 455 
 
 Haughton v. Moroney, 65 N. C. R. 124 £8 
 
 Haughton v. Newberry, 69 N. C. R. 456 66 
 
 Haughton, McDonald v 70 N. C. R. 393 110 
 
 Haughton v. Com'rs of Jones, . . 70 N. C. R. 466 466 
 
 Hawkins, Brown v 65 N. C. R. 645 13 38 
 
 Hawkins v. House, 65 N. C. R. 614 374 
 
 Hawkins, Brown v 68 N. C. R. 444 39 
 
 Hawes, State v 65 N. C. R. 301 295 
 
 Hayes, Cowles v 67 N. C. R. 128 17 
 
 Hayes, Cowles v 69 N. C. R. 406 282 
 
 Hayes v. Davidson, 70 N. C. R. 573 75 
 
NAMES OF OASES. 
 
 XXVII 
 
 NAMES OF PARTIES. 
 
 KEPOBTER. 
 
 Hayley v. Hayley, Phil. Eq. R. 
 
 Haynes, Cowles v 67 N. C. R. 
 
 Haynes, Johnston v 68 N. C. R. 
 
 Haynes, Johnston v 68 N. C. R. 
 
 Haynes, Johnston v 68 N. C. R. 
 
 Hays, Gainey v 63 N. C. R. 
 
 Hays v. Hays, .K 64 N. C. R. 
 
 Haywood, Broughton v Phil. L. R. 
 
 Haywood, State v Phil. L. R. 
 
 Haywood, Bryan v 63 N. C. R. 
 
 Haywood, Carroll v 64 N. C. R. 
 
 Haywood, Devries v 63 N. C. R. 
 
 Haywood, Devries v 64 N. C. R. 
 
 Haywood v Hutchings,. 65 N. C. R. 
 
 Haywood, Kane v 66 N. C. R. 
 
 Hedgecock v. Davis, 64 N. C. R. 
 
 Heck, Bryan v 67 N. C. R. 
 
 Hedrick v. Gobble, Phil. L. R. 
 
 Hedrick v. Gobble, 63 N. C. R. 
 
 Heidelburg, State v 70 N. C. R. 
 
 Heileg v. Stokes, 63 N. C. R. 
 
 Heileg v. Foard, 64 N. C. R. 
 
 Heileg v. Dumas, 65 N. C. R. 
 
 Heileg v. Dumas, 69 N. C. R. 
 
 Helms, Austin v 65 N. C. R. 
 
 Hemphill v. Giles, 66 N. C. R. 
 
 Hemphill v. Ross, 66 N. C. R. 
 
 Henderson, State v Phil. L. R. 
 
 Henderson, Mitchell v 63 N. C. R. 
 
 Henderson, Cansler v 64 N. C. R. 
 
 Henderson, Cansler v 65 N. C. R. 
 
 Henderson, State v 66 N. C. R. 
 
 Henderson v. Bessent, 68 N. C. R. 
 
 Henderson, State v 68 N. C. R. 
 
 Hennessee, McKesson v 66 N. C R. 
 
 Henry v. Henry, Phil. Eq. R. 
 
 Henry v. Rich, 64 N. C. R. 
 
 Henry, Osborne v 66 N. C. R. 
 
 Henry v. State, 68 N. C. R. 
 
 Heron, Brendle v 68 N. C. R. 
 
 Herren v. Gaines, 63 N. C. R. 
 
 Herren, Turpin v 66 N. C. R. 
 
 Herring, Floyd v 64 N. C. R. 
 
 Herring v. Murphy, 70 N. C. R. 
 
 Herring v. Outlaw, 70 N. C. R. 
 
 180. 
 
 128 
 
 509. 
 
 514. 
 
 516. 
 
 497. 
 
 59. 
 380.. 
 376 
 521. 
 481. 
 
 53. 
 
 83. 
 574. 
 1. 
 650 
 322. 
 348. 
 
 48. 
 496. 
 612. 
 710. 
 214. 
 206. 
 560. 
 512. 
 477. 
 229. 
 643. 
 469 
 540. 
 627. 
 223. 
 348 
 473. 
 334. 
 379. 
 354. 
 465. 
 496. 
 
 72 
 519. 
 409. 
 164. 
 334, 
 
 PAGE OF DIGEST. 
 140 
 
 417 
 
 226 420 
 
 222 
 
 290 
 
 158 
 
 380 
 
 68 335 
 
 269 
 
 368 
 
 20 
 
 214 387 
 
 101 
 
 303 
 
 94 
 
 292 
 
 104 346 
 
 136 
 
 152 
 
 34 295 
 
 86 264 
 
 296 299 
 
 154 
 
 155 
 
 336 
 
 340 
 
 340 
 
 51 
 
 36 278 
 
 62 
 
 29 
 
 312 
 
 41 105 
 
 251 300 
 
 267 
 
 376 
 
 179 374 
 
 (See errata.) 
 
 291 
 
 115 365 
 
 99 
 
 402 
 
 . 126 185 186 
 
 422 
 
 297 
 
XXVIII NAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Hervey v. Edmonds, 68 N. 0. E. 243 282 
 
 Hettrick, Shipp v 63 N. C. R. 329 77 
 
 Hewett, Westcock v 67 N. C. R. 191 (see errata.) 
 
 Hicks v. Critcher, Phil. L. E. 353 35 392 
 
 Hicks, State v Phil. L. E. 441 305 
 
 High v. Lack, Phil. Eq. E. 175 353 
 
 Hill v. BeU, Phil. L. E. 122 152 494 
 
 Hill v. Kesler, 63 N. C. E. 437 232 
 
 Hill, Harris v 63 N. 0. E. 653 276 
 
 Hill, Jones v 64 N. C. E. 198 339 
 
 Hill, Powell v 64 N. C. E. 169 467 
 
 Hill v. Com'rs of Forsythe 67 N. C. E. 367 115 
 
 Hill, Perryv 68 N. C. E. 417 157 
 
 Hilliard v. Eowland, 68 N. C. E. 506 29 
 
 Hilliard v. Moore, 65 N. C. E. 542 (see errata.) 
 
 Hines, Gee v Phil. Eq. E. 315 328 
 
 Hinsdale, Bates v 65 N. C. E. 423 277 
 
 Hinson v. Huggins, Phil. L. E. 126 463 
 
 Hinton v. Hinton, Phil. L. E. 410 84 489 
 
 Hinton v. Eiddick Phil. L. E. 291 184 
 
 Hinton v. Eogers Phil. Eq. E. 101 239 
 
 Hinton v. Eogers 63 N. C. E. 78 240 
 
 Hinton v. Hinton, 68 N. C. E. 99 481 
 
 Hinton v. Whitehurst 68 N. C. E. 316 201 205 
 
 Hinton v. Hinton, 70 N. C. E. 730 188 
 
 Hipp, Maxwell v 64 N. C. E. 98 440 
 
 Hirsh v. Whitehead, 65 N. C. E. 516 66 266 
 
 Hislop v. Hoover, 68 N. C. R. 141 108 270 343 
 
 Hix v. Davis, 68 N. C. R. 231 274 
 
 Hodges, State v Phil. L. E. 231 413 
 
 Hodges, Critcher v 68 N. C. R. 22 344 
 
 Hogan v. Hogan, 63 N. C. R. 222 316 322 
 
 Hoganv, Kirkland, 64 N. C. R. 250 182 
 
 Hogan, Kirkland v 65 N. C. R. 144 405 
 
 Hogan v. Strayhorn, 65 N. C. R. 279 478 
 
 Haywood v. Edwards, Phil. L. R. 350 472 
 
 Hoke, Carter v 64 N. C. R 348 264 337 
 
 Holbrook, Barringer v 64 N. C. R. 540 17 
 
 Holden, University R. R. v 63 N. C. R. 410 85 
 
 Holland v. Chandler, Phil. L. R. 598 474 
 
 Holland v. Clark, 67 N. C. R. 104 363 
 
 Holloman, Valentine v 63 N. C. R 475 45 54 386 
 
 Holloway v. Critcher, 64 N. C. R. 526 409 
 
 Holloway, Gully v 63 N. C. R. 84 321 
 
 Hollowell, Garibaldi v ». . . 68 N. C. R. 251 321 
 
NAMES OF OASES. XXIX 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Holly, Wilson v 66 N. C. R. 408 107 154 394 
 
 Holmes v. Sackett, 63 N. C. R. 58 37 
 
 Holmes, State v 63KC.B. 18 305 
 
 Holmes v. Godwin, 69 N. C. R. 467 66 344 
 
 Home In. Co., Ferebee v 68 N. C. R. 11 157 270 
 
 Holmesly v. Elias, 66 N. C. R. 330 119 
 
 Holmesly, Rowark v 68 N. C. R. 91 31 
 
 Holt, Rogers v Phil. Eq. R. 108 328 
 
 Holt, Sapona Iron Co. v 64 N. C. R. 335 106 
 
 Holt.Longv 68N.C.R. 53 2 23 
 
 Hoed v. Fronebarger, 63 N. C. R. 35 350 
 
 Hook v. Fentress, Phil. Eq.R. 229 301 484 
 
 Hooker, Phillips v Phil. Eq. R. 193 70 109 
 
 Hoover v. Thomas, Phil. L. R. 184 143 
 
 Hoover v. Neighbors, 64 N. C. R. 429 28 
 
 Hoover, Hislop v 68 N. C. R. 141 108 270 343 
 
 Hoppock v. Shober, 69 N. C. R. 153 278 
 
 Horan, State v Phil. L. R. 571 247 
 
 Horan, State v Phil. L. R. 591 309 
 
 Home, Pond v 65 N. C. R. 84 482 
 
 Hornthall v. McRae, 67 N. C. R. 21 46 
 
 Horton, State v 63 N. C. R. 595 246 
 
 Horton v. Green, 64 N. C. R. 64 153 
 
 Horton, Peebles v 64 N. C. R. 374 215 
 
 Horton v. Green, 66 N. C. R. 596 487 
 
 Horton v. McCall, 66 N. C. R. 159 233 
 
 House, State v 65 N. C. R. 315 312 
 
 House, Hawkins v 65 N. C. R. 615 374 
 
 House, Parker v 66 N. C. R. 374 281 
 
 Houston v. Houston, Phil. Eq. R. 95 437 
 
 Houston v. Potts, 64 N. C. R. 33 4 V 2 
 
 Houston, Harkey v 65 N. C. R. 137 138 
 
 Houston, Walkup v 65 N. C. R. 501 355 
 
 Houston v. Potts, 65 N. C. R. 41 374 
 
 Houston, Maxwell v 67 N. C. R. 305 44 
 
 Houston v. Dalton, 70 N. C. R. 662 3 
 
 Howard v. Beatty, 64 N. C. R. 559 374 141 
 
 Howard v. Kimball, 65 N. C. R. 175 59 
 
 Howard, Dulin v 66 N. C. R. 433 292 
 
 Howard, State v 67 N. C. R. 24 244 
 
 Howell, Powell v 63 N. C. R. 283 302 
 
 Howell v. Watson, 63 N. C. R. 454 57 
 
 Howell v. Buie, 64 N. C. R. 446 327 
 
 Howell v. Barnes, 04 N. C. R. 626 284 
 
 Howell, Jenkins v 65 N. C. R. 61 453 
 
XXX NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. 
 
 Howell, Lee v 69 N. C. R. 200 
 
 Howerton v. Sprague, 64 N. C. R. 451 
 
 Howerton v. Tate, 66 N. C. R. 231 
 
 Howerton v. Tate, 70 N. C. R. 161 
 
 Howerton v. Tate, 66 N. C. R. 431 
 
 Howerton, Stokes v 67 N. C. R. 50 
 
 Howerton v. Lattimer, 68 N. C. R. 370 
 
 Howes v. Manney, 66 N. C. R. 218 
 
 Howey v. Miller, 67 N. C. R. 459 
 
 Howie v. Rea 70 N. C. R. 559 
 
 Howze y. Green, Phil. Eq. R. 250 
 
 Hoyle v. Whittemore 67 N. C. R. 252 
 
 Hubbard, Morgan v 66 N. C. R. 394 
 
 Hubbs, Patterson v 65 N. C. R. 119 
 
 Hubbs, Bryan v 69 N. C. R. 423 
 
 Hudgins v. White, 65 N. C. R. 393 
 
 Hudson, Beaid v Phil. L. R. 180 
 
 Huffsteller v. Hagans, 65 N. C. R. 443 
 
 Huffsteller, Clerk's Office v 67 N. C. R. 449 ..... . 
 
 Hnggius v. Hinson, Pnil. R. L. 126 
 
 Hughes in re Phil. L. R. 57 
 
 Hughes, Kingsbury v Phil. L. R. 328 
 
 Hughes v. Pipkin, Phil. L. R. 4 
 
 Hughes v. Person, 63 N. C. R. 548 
 
 Hughes, Brower v 64 N. C. R. 642 
 
 Hughes v Smith, 64 N. C. R. 493 
 
 Hughes v. Wheeler, 65 N. C. R. 418 
 
 Hughes v. Merritt, 67 N. C. R. 386 
 
 Hughes, Martin v 67 N. C. R. 293 
 
 Humphries v. Shaw, 63 N. C. R. 341 
 
 Humphrey v. Wade, 70 N. C. R. 280 
 
 Huntv. Sneed, Phil. Eq. R. 351 
 
 Hunt v. McKesson, 64 N. C. R. 502 
 
 Hunt, Patton v 64 N. C. R. 163 
 
 Hunt v. Sneed, 64 N. C. R. 176 
 
 Hunt v. Sneed. 64 N. C. R. 180 „ 
 
 Hunt, White v 64 N. C. R. 496 
 
 Hunt, Falkner v 68 N. C. R. 475 
 
 Hunt, Smith v 68 N. C. R. 482 
 
 Hunter, Branch v Phil. L. R. 1 
 
 Hurdle v. Leath, 63 N. C. R. 366 
 
 Hurdle v. Leath, 63 N. C. R. 597 
 
 Hussey, Ellis v 66 N. C. R. 501 
 
 Hutchings, Haywood v 65 N. C. R. 574 
 
 Hutchins, Pullen v 67 N. C. R. 428 
 
 JE OV DIGEST. 
 
 
 227 
 
 265 
 
 460 
 
 
 332 
 
 
 350 
 
 
 405 
 
 
 341 
 
 159 
 
 397 
 
 267 
 
 291 
 
 
 184 
 
 
 108 
 
 
 263 
 
 
 130 
 
 
 161 
 
 
 346 
 
 25 176 
 
 451 
 
 
 286 
 
 
 26 
 
 
 78 
 
 
 114 
 
 
 463 
 
 82 
 
 205 
 
 
 384 
 
 
 185 
 
 
 30 
 
 148 
 
 366 
 
 
 494 
 
 
 362 
 
 
 492 
 
 
 234 
 
 
 128 
 
 
 304 
 
 
 262 
 
 
 383 
 
 20 119 
 
 468 
 
 
 295 
 
 
 297 
 
 
 36 
 
 .11 24 
 
 392 
 
 
 235 
 
 129 
 
 146 
 
 
 880 
 
 
 221 
 
 
 340 
 
 
 303 
 
 
 324 
 
tf AMES OF OASES. XXXI 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Hutchison, Phelan v Phil. Eq.R. 11G 272 352 
 
 Hutchison, Sprinkle v 66 N. C. R. 459 3G8 297 
 
 Hutchison v. Synions, 67 N. C. R. 156 183 
 
 Hutchison v. Roberts, 67 N. C. R. 223 3G1 
 
 Hutchison v. Smith, 68 N. C. R. 257 159 
 
 Hutchison v. Smith, 68 N. C- R. 354 3('4 
 
 Hyman v. Devereux, 63 N. C. R. 624 338 380 
 
 Hyman v. Devereux, 65 N. C. R. 588 2G9 419 
 
 Hyman v. Jarnigan, 65 N. C. R. 96 192 
 
 Ijams v. Ijams Phil. Eq. R. 39 261 
 
 Ingram, Covington v 64 N. C R. 123 377 
 
 Inst, for D. &. D. & B., Ellis v. 68 N. C. R. 243 270 
 
 Insurance Co., Coniglaud v Phil. Eq. R. 341 Ill 
 
 Insurance Co., Bobbitt v 66 N. C. R. 70 271 
 
 In the matter of Rhodes, 65 N. C. R. 518 93 
 
 In the matter of Schenck, 65 N. C . R. 353 42 
 
 Ireland v. Tapscott, 68 N. C. R. 300 356 453 
 
 Isenhour v. Isenhour 64 N. C. R. 640 148 
 
 Isler v. Whitfield Phil. L. R. 493 127 
 
 Isler v. Kennedy, 64 N. C. R. 530 335 
 
 Isler v. Andrews, 66 N. C. R. 552 448 
 
 Isler v. Brown 66 N. C. R. 556 180 
 
 Isler v.Foy, 66 N. C. R. 547. . .139 216 308 423 
 
 Isler v. Brown, 67 N. C. R. 175 375 
 
 Isler v. Dewey, 67 N. C. R. 93 154 
 
 Isler v. Moore, 67 N. C. R. 74 448 
 
 Isler v. Brown, 69 N. C. R. 125. 289 
 
 Israel v. Ivey, Phil. L. R. 551 298 
 
 Israel v. King, 69 N. C. R. 373 187 
 
 Ivery, Israel v Phil. L. R. 551 298 
 
 Ivey v. Granbery, 66 N. C. R. 223 125 
 
 Jackson v. Harris, 63 N. C. R. 261 379 
 
 Jackson Ex parte, 63 N. C. R. 309 92 
 
 Jackson v. Spivey, 63 N. C. R. 261 214 
 
 Jackson, Purvis v 69 N. C. R. 474 70 279 364 
 
 Jackson, State v 65 N. C. R. 305 311 
 
 Jacobs v. Burgwyn, 63 N. C. R. 193 283 
 
 Jacobs v. Burgwyn, 63 N. C. R. 196 283 
 
 Jacobs v. Smallwootl, 63 K C. R. 112 232 
 
 James, Teague v 63 N. C. R. 91 385 
 
 James v. Long, 68 N. C. R. 218 220 
 
 Jamieson, Brem v 70 N. C. R. 566 450 
 
 Jarman v. Saunders, 64 N. C. R. 367 265 266 285 443 
 
 Jarman, Saunders v C7 N. C. R. 86 443 
 
 Jarman v. Ward, 07 N. C. R. 32 66 
 
XXXII NAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Jarnigon, Hyinan v 65 N. C. R. 96 192 
 
 Jarrett, Jenkins v * 70 N. C. R. 255 108 
 
 Jarrett v. Martin 70 N. C. R. 459 462 
 
 Jarrett v. Wilson, 70 N. C. R. 401 and 403 118 
 
 Jarvis, State v 63 N. C. R. 556 246 310 
 
 Jefferson, State v 66 N. C. R. 309 22 65 258 
 
 Jenkins, Burroughs v Phil.Eq. R. 33 158 213 
 
 Jenkins, Galloway v 63 N. C. R. 147 84 
 
 Jenkins, Bank of Charlotte,. . . . 64 N. C. R. 719 21 460 
 
 Jenkins v. Briggs, 65 N. C. R. 159 160 453 468 
 
 Jenkins, Northwestern N. C. R. 
 
 R. Co. v 65 N. C. R. 173 331 
 
 Jenkins v Howell, 65 N. C. R. 68 453 
 
 Jenkins v. N. C. Ore Dressing 
 
 Co., 65 N. C. R. 563 367 389 
 
 Jenkins, Bayne v 66 N. C. R. 356 333 
 
 Jenkins, Raleigh & A. A. L. R. 
 
 R.Co.v 68N.C.R.499 410 
 
 Jenkins, Raleigh & A. A. L. R. 
 
 R. Co. v 68 N. C. R. 502 334 
 
 Jenkins v. Beal, 70 N. C. R. 440 356 
 
 Jenkins v. Conley 70 N. C. R. 353 337 
 
 Jenkins v. Jarrett 70 N. C. R. 255 108 
 
 Jenkins, McAden v 64 N. C. R. 796 '484 
 
 Jerkins v. Carter 70 N. C. R. 500 204 29S 
 
 Johnson, McArtlmr v Phil. L. R. 317 124 
 
 Johnson, State v Phil. L. R. 140 428 
 
 Johnson, State v Phil. L. R. 186 63 
 
 Johnson v Crawford, Phil. L. R. 342 147 
 
 Johnson v Osborne, Phil. Eq. R. 59 320 
 
 Johnson v. Judd, 63 N. C. R. 498 386 
 
 Johnson, Tayloe v 63 N. C. R. 381 316 
 
 Johnson v. Winslow 63 N. C. R. 552 86 
 
 Johnson v. Farrell, 64 N. C. R. 266 318 326 
 
 Johnson v. Feimster, 64 N. C. R. 259 208 
 
 Johnston v. McArthur 64 N. C. R. 675 71 
 
 Johnson, State v 64 N. C. R. 581 293 
 
 Johnson v. Winslow, 64 N. C. R. 27 (See errata.) 
 
 Johnson, Bullard v 65 N. C. R. 436 13 
 
 Johnson, Harris v 65 N. C R. 478 367 
 
 Johnson v. Mangum, 65 N. C. R. 146 189 
 
 Johnson v. Neville 65 N. C. R. 677 138 139 365 
 
 Johnson, Sellars y 65 N. C. R. 104 103 
 
 Johnson v. Sedberry 65 N. C. R. 1 277 433 
 
 Johnson v. Cross, 66 N. C. R. 167 233 
 
NAMES OF CASES. XXXIII 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Johnson, Wesson v 66 N. C. R. 18? 89 377 
 
 Johnson, State v 07 N. C. R. 55 258 
 
 Johnson v. Farmer, G9 N C. E. 542 28 
 
 Johnson, Kenedy v 09 N. C. E. 249 139 403 
 
 Johnson, Lewis v 09 N. C. E. 392 114 
 
 Johnson, Alexander v 70 N. C. E. 295 69 
 
 Johnson v. Kenned}', 70 N. C. E. 435 454 
 
 Johnston, Osborne v 05 N. C. E. 22 02 378 
 
 Johnson v. Com'rs of Cleaveland, 07 N. C. E. 101 333 
 
 Johnston, Lewis v 07 N. C. E. 38 113 
 
 Johuston v. Haynes, 08 N. C. E. 509 226 420 
 
 Johnston v. Haynes, OS N. C. E. 514 226 
 
 Johnston v. Haynes, OS N. C. R. 510 290 
 
 Johnston v. Neville, 08 N. C. E. 177 14 302 
 
 Johnston, People v 68 N. C. R. 471 348 349 
 
 Johnston v. Davis, 70 N. C. E. 581 300 
 
 Johnston v. Rankin, 70 N. C, E. 550 - 91 471 
 
 Johnston, At, Ten. & Ohio E.E. 
 
 Co. v 70 N. C. E. 348 413 
 
 Johnston, Walker v 70 N. C. E 570 319 
 
 Jones, Newbern v 03 N. C. B. GOG 41 
 
 Jones, Alspaugh v 04 iN. C. E. 29 41 
 
 Jones, Badham v 64 N. C. E. 055 176 
 
 Jones, Black v 64 N. C. E. 318 409 
 
 Jones v. Hill, 04 N. C. E. 198 339 
 
 Jones v. McClair, 64 N. C. R. 125 404 
 
 Jones v. Gupton, 65 N. C. E. 48 452 
 
 Jones, Steadman v 65 N. C. E. 388 17 45 416 
 
 Jones, Badger v 66 N. C. R. 305 186 
 
 Jones, McKesson v 06 N. C. R. 258 54 79 154 308 
 
 Jones v. N. C. R. E. Co., 67 N. 0. R. 123 174 
 
 Jones, Powell v 67 N. C. E. 126 485 
 
 Jones, State v 69 N. C. R. 304 259 
 
 Jones, State v 67 N. C. R. 211 244 
 
 Jones, State v 65 N. C. R. 395 311 
 
 Jones, State v G7 N. C. R. 285 396 
 
 Jones, Carrier v 68 N. C. R. 127 423 
 
 Jones, Carrier v 68 N. C. R. 130 343 
 
 Jones, Cheatham v 68 N. C. R. 153 234 
 
 Jones, State v 68 N. C. R. 443 154 
 
 Jonep, Porter v 68 N. C. R. 320 115 
 
 Jones, Shields v 68 N. C. R. 488 201 
 
 Jones, Clayton v 08 N. C. R. 497 340 306 
 
 Jones v. Badger, 60 N. C. R. 305 297 
 
 Jones v. Com'rs of Bladen, 69 N. C. R. 412 373 
 
 5 
 
XXXIV NAMES OF OASES. 
 
 NAMBS OP PARTIES. REPORTER. 
 
 Jones v. Fortune, 69 N. C. R. 322 . . . 
 
 Jones, State v 69 N. C. R. 364. . . 
 
 Jones, State v 69 N. C. R. 16. . . 
 
 Jones v. N. C. R. R. Co., 70 N. C. R. 626 
 
 Jones, Mayfield v 70 N. C. R. 536 . . . 
 
 Jones, State v 70 N. C. R. 75 . . . 
 
 Jones v. Wagoner, 70 N. C. R. 322 . . . 
 
 Jones v. Woods, 70 N. C. R. 447. . . 
 
 Jordan, Walton v 65 N. C. R. 170. . . 
 
 Jordan, Woody v 69 N. C. R. 189 . . . 
 
 Jordan v. Coffield, 70 N. C. R. 110. . . 
 
 Jordan, Neighbors v 70 N. C. R. 406. . . 
 
 Josey, State v 64 N. C. R. 56. . . 
 
 Joyner, Patrick v 63 N. C. R. 573 
 
 Joyner v. Speed, 68 N. C. R. 236. . . 
 
 Judd, Johnson v 64 N. C. R. 498. . . 
 
 Jurney v. Cowan, 67 N. C. R. 393 
 
 Justice v. Hamilton, 67 N. C. R. Ill . . . 
 
 Kane v. McCarthy, 63 N. C. R. 209. . . 
 
 Kane v. Haywood, 66 N. C. R. 1 . . . 
 
 Kearzey, State v Phil. L. R. 481... 
 
 Keaton, Chipley v 65 N. C. R. 534. . . 
 
 Kesler v. Newbern, Phil. L. R. 505 .. . 
 
 Keener v. Finger, 70 N. C. R. 35... 
 
 Keerans v. Brown, 69 N. C R. 43 . . . 
 
 Keeter, Carpenter v 65 N. C. R. 475 . . 
 
 Keith, Deaver v Phil. L. R. 428. . . 
 
 Keith, Rice v 63 N. C. R. 319 . . . 
 
 Keith, State v 63 N. C. R. 140. . . 
 
 Kelly, Fraley v 67 N. C. R. 78. . . 
 
 Kemp, Cromartie v 66 N. C. R. 382. . . 
 
 Kendall, Oates v 67 N. C. R. 241 . . . 
 
 Kennedy, Charles v 64 N. C. R. 442. . . 
 
 Kennedy, Isler v 64 N. C. R. 530 . . . 
 
 Kennedy v. Johnson, 69 N. C. R. 249 
 
 Kennedy, Johnson v 70 N. C. R. 435 . . . 
 
 Kent, Statev 65 N. C. R. 311... 
 
 Kerns v. Wallace, 64 N. C. R. 187 . . . 
 
 Kerr v. Elliott, Phil. L. R. 601 .. . 
 
 Kessler, Hill v 62 N. C. R. 437. .. 
 
 Kessler v. Hall, 64 N. C. R. 60. . . 
 
 Kessler, School Committee v. ... 66 N. C. R. 323 . . 
 
 Kessler v. Smith, 66 N. C. R. 154 . . . 
 
 Kessler, School Committee v.. . . 67 N. C R. 443 121 
 
 Ketchey, State v 70 N. C. R. 621 . . . 
 
 PAGE OP DIGEST. 
 
 
 139 
 
 
 458 
 
 290 
 
 403 
 
 
 5 
 
 
 375 
 
 
 206 
 
 
 235 
 
 
 327 
 
 
 178 
 
 369 372 
 
 405 
 
 
 261 
 
 
 204 
 
 
 257 
 
 
 264 
 
 
 492 
 
 
 386 
 
 
 480 
 
 
 6 
 
 
 342 
 
 
 94 
 
 255 
 
 309 
 
 
 354 
 
 174 
 
 348 
 
 25 
 
 203 
 
 
 174 
 
 
 129 
 
 
 40 
 
 
 148 
 
 
 15 
 
 
 46 
 
 
 126 
 
 157 
 
 363 
 
 
 129 
 
 
 335 
 
 139 
 
 403 
 
 
 454 
 
 170 311 
 
 335 
 
 77 
 
 191 
 
 
 136 
 
 
 232 
 
 
 42 
 
 
 22 
 
 120 
 
 457 
 
 121 123 
 
 444 
 
 91 154 260 807 
 
FAMES OF CASES. 
 
 XXXV 
 
 KAifBG 9V PARTIES. 
 
 Key v. Dobson, . . . ,, . , , , 
 
 Kidd v. Morrison, « > « . 
 
 Kilpatrick v. Harris, 
 
 Kimball, State v 
 
 Kimball v. Howard, 
 
 Kincade v. Conley, 
 
 Kincade v. Lowe, 
 
 Kincade r, Perkins, 
 
 KiflCade v, Conly, 
 
 King v. Little, ...,..,, 
 
 King, Little v ,,,... 
 
 King v. Com'rs of Lincoln, .... . 
 King v. Wilmington & W. R. R. 
 
 Co., 
 
 King v. Winant, 
 
 King, Israel v 
 
 King, State v 
 
 King, Bell v 
 
 King r. Weeks, 
 
 Kingsbury v. Hughes, 
 
 Kingsbury v. Qooch, 
 
 Kingsbury v. Lyon, 
 
 Kingsbury v, Chatham R. R. Co. 
 
 Kingsbury v, Fleming, 
 
 Kingsbury r. Suit, 
 
 Kirby v. Mastiu, , 
 
 Kirkland v. Manguni 
 
 Kirkland, Hogan v 
 
 Kirkland v. Hogan, 
 
 Kirkham, State v 
 
 Kirkman v. Dixon, 
 
 Kirkham v. Dixon, 
 
 Kivett v. Massey, 
 
 Klutts v. McKenzie 
 
 Knight v. Braswell, 
 
 Knox, State v 
 
 Kornegay v. Collier, 
 
 Krebs, State v 
 
 Lack, High v 
 
 Lackey v. Miller, 
 
 Ladd, Adams v 
 
 Lamb, State v 
 
 Lambeth v. N. C. R. R. Co., . . . 
 Land & \* umber Co., Miller v. 
 I Aiidifi, York /.. „ 
 
 REPORTER. PAGE OF DIGEST. 
 
 Phil. Eq.R. 170 262 
 
 Phil.Eq. R. 31 112 
 
 Phil, Eq.R. 222 97 
 
 64 N. C. R. 604 329 
 
 65 N. C. R. 175 59 
 
 Phil. Eq. R. 270 301 
 
 Phil. Eq.R. 42 173 
 
 63 N. C. R. 282 326 
 
 64 N. C. R. 387 188 302 
 
 Phil. L. R. 484 124 
 
 64 N. C. R. 361 125 
 
 05N. C. R. 603 89 
 
 66 N. C. B. 277 80 89 
 
 68 N. C. R. 63 364 
 
 69 N. C. R. 373 187 
 
 69 N. C. R. 419 31 
 
 70 N. C. R. 330 298 
 
 70 N. C. R. 372 481 
 
 Phil. L. R. 328 384 
 
 64 N. C. R. 528 374 409 
 
 64 N. C. R. 128 77 
 
 06 N. C. R. 284 372 
 
 66 N. C. R. 524 55 
 
 66 N. C. R. 601 55 
 
 70 N. C. R. 540 160 
 
 Phil. L. R. 177 146 
 
 64 N. C. R. 250 182 
 
 65 N. C. R. 144 405 
 
 63 N. C. R. 246 168 
 
 65 N. C. R. 179 113 
 
 66 N. C. R. 406 (see errata ) 
 
 63 N. C R. 240 81 
 
 65 N. C. R. 102 386 419 
 
 70 N. C. R. 709 61 237 
 
 Phil. L. R, 312 254 357 
 
 65 N. C. R. 69 425 
 
 64 N. C.R. 604 329 
 
 Phil. Eq. R. 175 353 
 
 Phil. L. R. 26 48 
 
 66 N. C. R. 164 233 
 
 65 N. C. R. 419 211 
 
 66 N. C. R. 494 73 
 
 66 N. C. R. 503 7 
 
 65 N. C. R. 535 461 
 
XXXVI NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. 
 
 Lane v. Stanley, .• 65 N. C. R. 153 
 
 Langley, Nobles v 66 N. C. E. 287 
 
 Larkins v. Murphy, 67 N. C. R. 381 .. . 
 
 Lash, Powell v 64 N. C. R. 456 .. . 
 
 Lassiter v. Wood, 63 N. C. R. 360 
 
 Lassiter v. Davis, 64 N. C. R. 498 . . . 
 
 Lassiter v. Phillips, 70 N. 0. R. 462 .. . 
 
 Latham v. Skinner, Phil. Eq. R. 292 . . . 
 
 Latham, Stone v 68 N. C. R. 421 
 
 Latham v. Whitehurst, 69 N. C. R. 33 . . . 
 
 Latham v. Bell, 69 N. C. R. 135 
 
 Latham v. Blakely 70 N. C. R. 368 .. . 
 
 Lathrop, Young v 67 N. C. R. 63 . . . 
 
 Lattimer, Howerton v 68 N. C. it. 370 .. . 
 
 Lattimore v. Dixon, 63 N. C. R. 356 .. . 
 
 Lattimore v. Dixon, 65 N. C. R. 664 . . . 
 
 Lawrence v. Morrison 68 N. C. R. 162 .. . 
 
 Lawrence v. Steele, 66 N. C. R. 584 .. . 
 
 Lawrence, Erwin v 70 N. C. R. 282 
 
 Laws v. Rycrof t, 64 N. C. R. 100 .. . 
 
 Lawson, State v ' Phil. L. R. 47 . . . 
 
 Laxton v. Tilly, 66 N. C, R. 327 .. . 
 
 Lea, Neal v 64 N. C. R. 678 
 
 Leach v. West. N. C. R. R. Co., 65 N. C. R. 486 . . 
 
 Leach, McLean v 68 N. C. R. 95 . . . 
 
 Leach v. Harris, 69 N. O. R. 532 .. . 
 
 Leak v. Moorman, Phil. L. R. 168 .. . 
 
 Leak, State v Phil. L R. 450... 
 
 Leak v. Com'rsof Richmond,. . . 64 N. C. R. 132 . . . 
 
 Leak, Covington y. 67 N. C. R. 363 . . . 
 
 Leath, Hurdle v 63 N. C. R. 366 .. . 
 
 Leath, Hurdle v 63 N. C. R. 597 .. . 
 
 Ledbetter v. Anderson, Phil. Eq. R. 323. . . 
 
 Ledbetterv. Com'rsof Chatham, 66 N. C. R. 486... 
 
 Ledbetter v. Osborne, 66 N. C. R 379 .. . 
 
 Ledford, State v 67 N. C. R. 60. . . 
 
 Lee, Wilder v 64 sS. C. R. 50. . . 
 
 Lee, Froneberger v 66 N. C. R. 333 .. . 
 
 Lee v. Pearce 68 N. C. R 76 
 
 Lee v. Pearce, 63 N. C. R. 70 
 
 Lee v. Howell, 69 N. C. R. 200 .. . 
 
 Leffler v. Rowland, Phil. Eq. R. 143 . . . 
 
 Leggett v. Leggett, 66 N. C. R. 420. . . 
 
 Leggett, Watts v 66 N. C. R. 197. . . 
 
 Lemly v. Atwood, 65 N. C. R. 46. . . 
 
 PAGE OP DIGEST. 
 
 
 472 
 
 
 427 
 
 
 420 
 
 
 336 
 
 
 317 
 
 
 215 
 
 
 151 
 
 302 
 
 485 
 
 
 439 
 
 91 
 
 387 
 
 
 194 
 
 
 208 
 
 
 216 
 
 159 
 
 397 
 
 142 
 
 366 
 
 
 386 
 
 
 225 
 
 173 
 
 395 
 
 
 2 
 
 
 440 
 
 
 162 
 
 
 122 
 
 370 
 
 445 
 
 281 
 
 372 
 
 200 
 
 371 
 
 
 28 
 
 
 36 
 
 
 236 
 
 407 
 
 415 
 
 
 224 
 
 
 380 
 
 
 221 
 
 59 
 
 177 
 
 
 331 
 
 287 
 
 417 
 
 
 312 
 
 
 265 
 
 
 292 
 
 218 
 
 300 
 
 218 
 
 300 
 
 
 227 
 
 
 324 
 
 
 3S8 
 
 
 233 
 
 
 222 
 
NAMES OF OASES. 
 
 XXXVII 
 
 NAMES OF PARTIES. 
 
 Lentile v. Hart, 
 
 Levy v. Griffis, 
 
 Lewis v. Wilkins, 
 
 Lewis, Ransom v 
 
 Lewis, Eobeson v 
 
 Lewis v. McNatt, 
 
 Lewis v. Johnston, 
 
 Lewis v. Sloan, 
 
 Lewis v. Johnson, 
 
 Lewis, Setzer v 
 
 Lewis, Froneburger v 
 
 Lilly, Bates v 
 
 Lilly v. Corn'rs of Cumberland,. 
 
 Lindsey, State v 
 
 Lineberger, MeKee v 
 
 Lineberger, Gilbraith v 
 
 Lineberger, Carson v 
 
 Link v. Brooks, 
 
 Linker v. Long, 
 
 Linker v. Benson, 
 
 Linkhow, State v 
 
 Lippard v. Roseman. 
 
 Lipscomb v. Cheek, 
 
 Little, King v 
 
 Little v. Hamilton, 
 
 Little v. Martin, 
 
 Little v. Little, 
 
 Little v. Stanback, 
 
 Little v. King, 
 
 Little v. Hager, 
 
 Littlefield, Backalan v 
 
 Locust, State v 
 
 Loftin v. Sowers, 
 
 Loftis, Fulton v 
 
 Loftis v. Raxter, 
 
 Logiin, Elliott v 
 
 Logan, Love v 
 
 Logan, Dougherty v 
 
 Logan v. Pluminer, 
 
 Long, Cherry v 
 
 Long v. Graeber, 
 
 Long, Linker v 
 
 Long, Jlodc v 
 
 bong v. Person, 
 
 Long v. Cole, 
 
 REPORTER. PAGE OF DIGEST. 
 
 66 N. C. R. 421 402 
 
 65 N. C. R. 236 477 
 
 Phil. Eq. R. 303 98 425 
 
 63 N. C. R. 43 ... . 136 
 
 64 N. C. R. 734 21 156 
 
 65 N. C. R. 63 307 367 
 
 67 N. C. R. 38 113 
 
 68 N. C. R. 557 47 398 
 
 69 N. C. R. 392 114 
 
 69 N. C. R. 133 186 
 
 70 K C. R. 456 188 422 
 
 65 N. C. R. 232 451 
 
 69 N. C. R. 300 465 
 
 Phil. L. R. 468 32 252 
 
 69 K C. R. 217 155 449 
 
 69 N. C. R. 145 6 8 354 
 
 70 K C. R. 173 399 
 
 Phil. L. R. 499 64 
 
 64 N. C. R. 296 120 
 
 67 N. C. R. 150 423 
 
 69 N. C. R. 214 245 
 
 70 N. C. R. 34 421 
 
 Phil. L. R. 332 81 
 
 Phil. L. R. 484 124 
 
 Phil. L. R. 29 158 
 
 Phil. L. R. 240 210 
 
 63 N. C. R. 22 133 
 
 63 N. C. R. 2S5 336 
 
 64 N. C. R. 361 125 
 
 67 N. C. R. 135 321 
 
 64 N. C. R. 233 3S 
 
 63 N. C. R. 574 19 113 
 
 65 N. C. R. 251 447 
 
 63 N. C. R. 393 215 
 
 66 X. C. R. 340 113 
 
 Phil. Eq. R. 163 213 
 
 69 N. C. R. 70 2.7 
 
 70 N. C. R. 558 278 
 
 70 N. C. R. 388 58 
 
 Phil. L. R. 466 ] i 
 
 64 N. C. R. 431 239 
 
 64 N. C. R. 296 120 
 
 64 N. C. R. 433 378 
 
 63 N. O. R. 530 30 
 
 60 N. C. It. 381 377 
 
XXXVIII NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Long, Cox v 69 N. C. R. 7 488 
 
 Long v. Holt, 68 N. C. R. 53 2 23 
 
 Long v. Pool, 68 N. C. R. 479 9 398 
 
 Long, James v 68 N. C. R. 218 220 
 
 Long v. Fisb, 70 N. C. R. 674 11 P.88 
 
 Lookabill, Stith v 68 N. C. R> 227 175 
 
 Love, Den v Phil. L» R t 439 . . , » , . 1 
 
 Love v. Cobb, 63 N, C. R. 824 99 109 §63 
 
 Love v. Com'rs of Chatham, .... 64 N. C. R. 706 115 366 
 
 Love, Smith v 64 N. C. R. 439 107 
 
 Love, Crisp v 65 N. C. R. 126 28 
 
 Lore v. Moody, 68 N. C. R. 200 344 
 
 Love v. Logan, 69 N. C. R. 70 227 
 
 Lovev. Yancy, 69 N. C. R. 65 39 384 
 
 Lovenier v. Pearce, 70 N. C. R. 167 195 
 
 Lowe, Kincaid v Phil. Eq. R. 42 173 
 
 Lowe, Sullivan v 64 N. C. R. 500 69 
 
 Lowe, Turner v 66 N. C. R. 413 307 
 
 Lowe v. Com'rs of Davidson, ... 70 N. C. R. 532 268 
 
 Lowery, Erwin v 64 N. C. R. 321 367 386 
 
 Lowery v. Lowery, 64 N. C. R. 110 490 
 
 Lowhorne, State v 66 N. C. R. 638 4 164 
 
 Lowrance, Erwin v 64 N. C. R. 488 161 
 
 Ludwick, State v Phil. L. R. 401 166 167 
 
 Lupton, State v 63 N. C. R. 483 112 
 
 Lusk v. Falls, 63 N. C. R. 188 452 
 
 Lusk v. Clayton, 70 N. C. R. 184 30 
 
 Lusk v. Patton, 70 N. C. R. 701 357 
 
 Lute v. Reilly, 65 N. C. R. 20 232 
 
 Lutterloh v. Com'rs of Cumber- 
 land, 65 N. C. R. 403 331 
 
 Lutz, State v 65 N. C. R. 502 464 
 
 Lutz v. Yount, Phil. L. R. 367 ... . 44 144 147 392 406 
 
 Lynam v. Califer, 64 N. C. R. 572 302 
 
 Lynch v. Lynch, Phil. Eq. R. 46 133 
 
 Lyon, Kingsbury v 64 N. C. R. 128 77 
 
 Lytle, State v 64 N. C. R. 255 133 211 
 
 Lytle, Crawford v 70 N. C R. 385 56 
 
 Mabry, State v 64 N. C. R. 592 33 
 
 Mabry v. Engelhard, 70 N. C. R. 377 81 
 
 Mace, State v 65 N. C. R. 344 208 
 
 Macon, Shortridge v Phil. L. R. 392 406 
 
 Macon, Batchelor v 67 N. C. R. 181 485 
 
 Macon, Batchelor v 69 N. C. R. 545 131 
 
 Mallett, Emerson v Phil. Eq. R. 234 76 
 
NAMES OF CASES. 
 
 XXXIX 
 
 NAMES OF PARTIES. REPORTER. 
 
 Malpass v. Caldwell, 70 N. C. R. 130 . . 
 
 Mangum, Kirkland v Phil. L. R. 177 . . 
 
 Mangum, Johnson v 65 N. C. R. 146 . . 
 
 Mann v. Blount, 65 N. C. R. 99. 
 
 Manuel, State v 64 N. C. R. 601 . 
 
 March v. Phelps, Phil. L. R. 560 . 
 
 March v. Thomas,. 63 N. 0. R. 87 . 
 
 March v. Thomas, 63 N. C. R. 249 . , 
 
 March, Fraley v. 68 N. C. R. 160 . . 
 
 Mardre v. Felton, Phil. L. R. 279 
 
 Marlow, Maslin v 65 N. C. R. 695 . 
 
 Marsh v. Grist, Phil. Eq. R. 349 . 
 
 Marsh v. Williams, 63 N. C. R. 371 . 
 
 Marsh, State v 64 N. C. R. 378. 
 
 Marsh v. Cohen, 68 N. C. R. 283 . 
 
 Marshall, State v Phil. L. R. 49 . 
 
 Marshall, Bullinger v 70 N. C. R. 520. 
 
 Martin, Little v Phil. L. R. 240 . , 
 
 Martin, State v Phil. L. R. 326 . 
 
 Martin, Colson v Phil. Eq. R. 125 . , 
 
 Martin v. McMillan, 63 N. C. R. 486. . 
 
 Martin, Salms v 63 N. C. R. 608 . , 
 
 Martin v. Deep River Co., 64 N. C. R. 653. 
 
 Martin v. Cuthbertson, 64 N. C. R. 328. 
 
 Martin v. McMillan, 65 N. C. R. 199 . 
 
 Martin, Sprinkle v 66 N. C. R. 55 . 
 
 Martin v. Wilbourne, 66 N. C. R. 321 . . 
 
 Martin v. Hughes, 67 N. C. R. 293 . 
 
 Martin v. Richardson, 68 N. C. R. 255 . . 
 
 Martin, Childs v 68 N. C. R. 307 . . 
 
 Martin, Childs v 69 N. C. R. 126 . . 
 
 Martin, Sprinkle v 69 N. C. R. 175 . . 
 
 Martin, Deep River Co. v 70 N. C. R. 300. . 
 
 Martin v. Jarratt 70 N . C. R. 459 . 
 
 Martin, State v 70 N. C. R. 
 
 Martin v. Sloan, 69 N. C. R. 
 
 Mason v. Miles, 63 N. C. R. 
 
 Mason v. Osgood, 64 N. C. R. 
 
 Mason, State v 66 N. C. R, 
 
 628. 
 
 128. 
 
 564. 
 
 467 
 
 636. 
 
 Mason v. Williams, 66 N. C. R. 564 . 
 
 Mason, Stanly v 69 N. C. R. 1 
 
 Massage, State v 65 N. C. R. 480. 
 
 Massey, Kivett v 63 N. C. R. 240 
 
 Massingill, Stanly v 63 N. C. R. 558 
 
 Mastin v. Marlow, 65 N. C. R. 695. 
 
 PAGE OP DIGEST. 
 218 
 146 
 
 189 
 
 50 
 
 149 257 
 
 487 
 
 446 
 
 65 
 
 373 
 
 184 457 
 
 102 300 
 189 
 
 , 37 348 386 
 
 244 
 
 18 417 
 
 166 413 
 
 . 152 293 345 
 
 210 
 
 52 
 
 . 112 196 239 
 
 109 
 
 124 
 
 284 
 
 44 
 
 58 
 
 178 
 
 479 
 
 234 
 
 446 
 
 24 
 
 305 
 
 229 
 
 289 
 
 462 
 
 400 
 
 263 269 403 
 
 284 
 
 191 
 
 215 
 
 144 
 
 373 
 
 237 
 
 81 
 
 10 387 
 
 103 300 
 
XL NAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Mastin, Gore v 66 N. C. R. 371 (See errata.) 
 
 Mastin, Kirby v 70 N. C. R. 540 160 
 
 Matthews, Thompson v Phil. L. R. 15 146 
 
 Matthews v. McPherson, 65 K C. R. 189 477 
 
 Matthews, State v 66 N. C. R. 106 , 163 
 
 Matthews v. Smith, 67 N. C. R. 374 108 397 
 
 Maultsby, McDowell v Phil. Eq. R. 16 376 
 
 Maultsby, Wooten v 69 N. C. R. 462 363 
 
 Mauny, Howes v 66 N. C. R. 218 267 291 
 
 Maxwell v McBrayer, Phil. L. R. 527 37 
 
 Maxwell v Hipp, 64 N. C. R. 98 440 
 
 Maxwell, Peoples v 64 N. C. R. 313 148 
 
 Maxwell, Skinner v 66 N. O. R. 15 260 303 
 
 Maxwell v. Houston, 67 N. C. R. 305 44 
 
 Maxwell v. Maxwell, 67 N. C. R. 383 387 392 420 
 
 Maxwell, Skinner v 67 N. C. R. 257 65 
 
 Maxwell, Skinner v 68 N. C. R. 400 414 
 
 Maxwell v. Maxwell, 70 N. O. R. 267 422 
 
 May v. Hanks, Phil. Eq. R. 310 302 346 
 
 Mayars, Pearsall v 64 N. C. R. 549 21 28 337 370 485 
 
 Mayfield v. Jones, 70 N. C. R. 536 375 
 
 Mayhew v. Davidson, Phil. Eq. R. 47 320 
 
 Mayho v. Cotton, 69 K C. R. 289 235 
 
 Maynard v. Moore, 70 N. C. R 546 137 
 
 McAdams, Crawford v 63 N. C. R. 67 376 
 
 McAden v. Bannister, 63 N. C. R. 478 275 
 
 McAden v. Jenkins, 64 N. C. R. 796 384 
 
 McAdoo v. Benbow, 63 N. C. R 461 86 
 
 McAdoo, Pinnix v 68 N. C. R. 56 8 
 
 McAfee, State v 64 N. C. R 339 306 
 
 McArthur v. Johnson, Phil. L. R. 317 124 
 
 McArthur v. McEachin 64 N. C. R. 72 265 404 
 
 McArthur v. McEachin, 64 N. C. R 454 427 
 
 McArthur, Johnson v 64 N. C. R. 675 71 
 
 McBee, Ex parte, 63 N. C. R. 332 121 128 
 
 McBrayer, Maxwell v Phil. L. R. 527 37 
 
 McBride, Younce v 68 N. C. R 532 226 
 
 McBride, Sears v 70 N. C. R 152 127 
 
 McCadden, Critcher v 64 N. C. R. 262 416 
 
 McCall, Horton v 66 N. C. R. 159 233 
 
 McCandless v. Reynolds, 67 N. C. R. 268 158 
 
 McCarthy, Kane v 63 N. C. R 299 342 
 
 McCauly, Guess v Phil. L. R. 514 136 
 
 McClair, Jones v 64 N. C. R. 225 404 
 
 McClarty v. Broom, 67 N. C. R 311 203 
 
NAMES OF CASES. XLI 
 
 NAMES OP PARTIES. REPORTER. PAGE OF DIGEST. 
 
 McClees, Ransom v 64 N. C. R. 17 109 366 370 374 
 
 McClure, Stato v Phil. L. R. 491 256 
 
 McCombs, Harshaw v. 63 N. C. R. 75 214 
 
 McCombs, Sudderth v 65 N. C. R. 186 223 
 
 McCombs, Hagler v 66 N. C. R. 345 202 204 205 360 
 
 McCombs v. Wallace, 66 N. C. R. 481 308 
 
 McCombs v. N. C. R. R. Co., . . 67 N. C. R. 193 44 155 396 
 
 McCombs v. Griffith, 67 N. C. R. 83 442 
 
 McCombs v. Sudderth, 67 N. C. R. 358 . 13 22 
 
 McCombs v. N. C. R. R. Co.,... 70 N. C. R. 178. 8 
 
 McConnaughey v. Chambers,. . . 64 N. C. R. 284 445 
 
 McConnell v. McConnell, 64 N. C. R. 342 72 
 
 McCorkle v. Earnhardt, Phil. L. R. 300 484 
 
 McCormick, Wright v 67 N. C. R. 27 351 358 
 
 McCormick, Wright v 69 N. C. R. 14 351 
 
 McCown v. Sims, 09 N. C. R. 159 338 
 
 McCoy v. Wood, 70 N. C. R. 125 326 
 
 McCubbins v. Barringer, Phil. R. L. 554 298 
 
 McCullock, Falls v Phil. Eq. R. 140 320 
 
 McCullock v. Doak 68 N. C. R. 267 155 289 343 
 
 McCurry, State v 63 N. C. R. 33 168 306 
 
 McDaniel, Andrews v 68 N. C. R. 385 150 361 
 
 McDonald v. Haughton, 70 N. C. R. 393 110 
 
 McDonnell, Addington v 63 N. C. R. 389 100 
 
 McDowell v. Maultsby Phil. Eq. R. 16 376 
 
 McDowell v. Asbury, 66 N. C. R. 444 199 
 
 McDowell v. White, 68 N. C. R. 65 132 
 
 McDowell v. Clark 68 N. C. R. 118 188 450 
 
 McEachin, McArthur v 64 N. C. R. 72 265 404 
 
 McEachin, McArthur v 64 N. C. R. 454 427 
 
 McEntire v. West. N.C.R.R.Co., 67 N. C. R. 278 412 
 
 McFagden v. Harrington, 67 N. C R. 29 354 
 
 McGalliard, State v Phil. Eq. R. 346 359 
 
 McGehee, Carter v Phil. L. R. 431 75 220 
 
 McGowan, People v 68 N. C. R. 520 91 
 
 Mcllhenny, Bunting v Phil. L. R. 579 20 
 
 Mcllwaine, Smith v 63 N. C. R. 95 385 
 
 Mcllwaine, Smith v 70 N. C. R. 287 399 
 
 Mclntyre v. Guthrie, 64 N. C. R. 104 335 
 
 Mclntyre v. Merritt, 65 N. C. R. 558 68 
 
 Mclntyre v. W. N. C. R. R. Co., 64 N. C. R. 278 412 
 
 Mcintosh, State v 64 N. C. R. 607 52 
 
 Mclver. Robinson v 63 N. C. R. 645 317 320 324 
 
 Mclver, People v 68 N. C. R. 467 349 
 
 McKay v. Ray, 63 N. C. R. 46 270 
 
 
 
XL1I NAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 McKay v. Smitherman, 64 N. C. R. 47 77 
 
 McKay, Summers v 64 N. C. R. 555 441 
 
 McKay v. Gilliam, 65 N. C. R. 130 478 
 
 McKee, Adderholt v 65 N. C. R. 257 117 
 
 McKee, People v 68 N. C. R. 429 348 
 
 McKee v. Lineberger, 69 N. C. R. 217 155 449 
 
 McKeithan v. Terry, 64 N. C. R. 25 232 
 
 McKeithan v. Walker, 66 N. C. R. 95 185 
 
 McKenzie, Reynolds v Phil. Eq. R. 50 261 301 
 
 McKenzie v. Culbreth, 66 N. 0. R. 534 2 
 
 McKenzie, Kluttsv 65 N. C. R. 102 386 419 
 
 McKenzie, Rogers v 65 N. C. R. 218 
 
 McKinnon v. Faulk, 68 N. C. R. 279 
 
 McKesson v. Mendenhall, 64 N. C. R. 286 
 
 McKesson v. Mendenhall, 64 N. C. R. 502 
 
 McKesson, Walton v 64 N. C. R. 77 
 
 McKesson, Walton v 64 N. C. R. 154 70 444 
 
 McKesson, Harshaw v 65 N. C. R. 688 6 102 
 
 McKesson, Harshaw v 66 N. C. R. 266 
 
 McKesson v Hennesee, 66 N. C. R. 473 
 
 186 
 14 
 370 
 383 
 280 
 
 McKesson v Jcnes, 66 N. C. R. 258 54 
 
 McLarty v. Broom, 67 N. C. R. 311 
 
 McLaurin, Dick v 63 N. C. R. 185 
 
 McLaurine, Ex parte, 63 N. C. R. 528 
 
 McLean, Young v 63 N. C. R. 576 
 
 339 
 
 267 
 
 79 154 308 
 
 203 224 
 
 283 
 
 455 
 
 60 
 
 McLean, Harrington v Phil. Eq. R. 258 188 301 366 376 
 
 McLean v. Leach, 68 N. C. R. 95 200 371 
 
 McLenan v. Chisholm, 64 N. C. R. 323 20 
 
 McLenan v. Chisholm, 64 N. C. R. 328 219 
 
 McLenan v. Chisholm 66 N. C. R. 100 129 395 
 
 McLenan v. McLeod, 70 N. C. R. 364 2 137 
 
 McLin v. Newborn, 70 N. C. R. 12 
 
 McMahon, Blankenship v 63 N. C. R. 180 
 
 McMichael, Caffey v 64 N. C. R. 507 
 
 McMillan, Martin v 63 N. C. R. 486 
 
 McMillan v. Daves, 66 N. C. R. 539 
 
 McMillan, State v 68 N. C. R. 440 11 313 
 
 McMillan v. McNeill, 69 N. C. R. 129 381 
 
 McMillan, Martin v 65 N. C. R. 199 58 
 
 McMinn v. Allen, 67 N. C. R. 131 47 
 
 McMinn v. Freeman, 68 N. C. R. 341 57 
 
 McNair, Thompson v Phil. Eq. R. 121 262 
 
 McNair, Thompson v 64 N. C. R. 418 865 
 
 McNair, McRae v 69 N. C. R. 12 443 
 
 McNairy, Gilmer v 69 N. C. R. 335 159 
 
 471 
 
 37 
 
 221 
 
 109 
 
 107 
 
NAMES OF OASES. XLIII 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 McNatt, Lewis v 65 N. C. R. 63 307 367 
 
 McNeill v. Morrison, 65 N. C. R. 508 438 
 
 McNeill, Griffis v Phil. L. R. 175 382 
 
 McNeill v. Shaw, Phil. Eq. R. 91 437 
 
 McNeill v. Riddle, 66 N. C. R. 290 137 379 479 
 
 McNeill v. McMillan, 69 N. C. R. 129 381 
 
 McNinch v. Ramsay, 66 N. C. R. 229 61 
 
 McPherson, Matthews v 65 N. C. R. 189 477 
 
 McPherson, State v 70 N. C. R. 239 64 
 
 McQuaig, State t 63 N. C. R. 550 52 
 
 McRae, Hornthall v 63 N. C. R. 21 46 
 
 McRae v. Battle, 69 N. C. R. 98 241 358 369 
 
 McRae v. McNair, 69 N. C. R. 12 443 
 
 Mebane v. Cummings, 63 N. C. R. 315 76 
 
 Mebane, Whitsell v 64 N. C. R. 345 121 
 
 Mebane v Mebane, 66 N. C. R. 334 360 
 
 Mebane, Cardwell v 68 N. C. R. 485 155 
 
 Melton v. Monday, 64 N. C. R. 295 219 
 
 Melvin, Guion v 69 N. C. R. 242 405 481 
 
 Mendenhall, McKesson v 64 N. C. R. 286 370 
 
 Mendenhall, McKesson v 64 N. C. R. 502 383 
 
 Mercer, State v 67 N. C. R. 266 (See errata.) 
 
 Merchant's Bank of Newbern, 
 
 Perry v 69 N. C. R. 551 35 
 
 Merchant's Bank of Newbern, 
 
 Perry v 70 N. C. R. 309 51 
 
 Meroney v. Avery, 64 N. C. R. 312 388 
 
 Meroney, Haughton v. 65 N. C. R. 124 58 
 
 Merrill v. Barnard, Phil. L. R. 569 12 
 
 Merrimon v. Norton, 67 N. C. R 115 375 
 
 Merritt, State v Phil. L. R. 134 32 
 
 Merritt, Murphy v 63 N. C. R. 502 284 
 
 Merritt, Mclntyre v 65 N. C. R. 558 68 
 
 Merritt, Hughes v 67 N. C. R. 386 492 
 
 Merwin v. Ballard, 65 N. C. R. 168 103 367 
 
 Merwin v. Ballard, 66 N. C. R. 398 275 388 
 
 Messick, Sparks v 65 N. C. R, 440 487 
 
 Miles, Maran v. . . . • • • 63 N. C. R. 564 284 
 
 Miller, Lackey v Phil. L. R. 26 48 
 
 Miller v Miller, Phil. Eq. R. 85 85 
 
 Miller, Moore v .'..... Phil. Eq. R. 359 187 196 
 
 Miller, Taylor v Phil. Eq. R. 365 . 459 
 
 Miller v. Atkinson 63 N. C. R. 537 132 
 
 Miller, Britten v 63 N. C. R. 268 316 
 
 Miller v. Gibson, 63 N. C. R. 635 (see errata.) 
 
XLIV NAMES OF OASES. 
 
 NAMFS OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Miller, Sumner v 64 N. C. B. 588 296 336 457 
 
 Miller v. Barnes 65 N. C. R. 67 299 
 
 Miller v. Land & Lumber Co.,. . 66 N. C. R. 503 7 145 
 
 Miller, Howey v. 67 N. C. R. 459 184 
 
 Mills, Carson v 69 N. C. R. 32 152 
 
 Mills, Carson v 69 N. C. R. 122 454 
 
 Mimsv. Crump, 64 N. C. R. 767 71 427 
 
 Minguis, Bost v 64 N. C. R. 44 473 
 
 Minor v. Harris, Phil. L. R. 322 335 
 
 Minton, State v Phil. L. R. 196 247 
 
 Mitchell, Moore v Phil. L. R. 304 283 
 
 Mitchell, State v Phil. L. R. 447 162 
 
 Mitchell, Clements v Phil.'^Eq.R. 3 161 352 
 
 Mitchell v. Moore, Phil. Eq. R. 281 400 
 
 Mitchell v. Henderson, 63 N. C. R. 643 36 278 
 
 Mitchell, Smith v 63 N. C. R. 620 19 
 
 Mitchell v. Mitchell, 67 N. C. R. 307 27 
 
 Mitchell, Eubanks v 67 N. C. R. 34 391 
 
 Mitchell v. Sloan, 69 N. C. R. 10 25 
 
 Mitchell, Albright v 70 N. C. R. 445 390 
 
 Mitchell v. Wood 70 N. C. R. 297 60 
 
 Mitchener v. Atkinson Phil. Eq. R. 23 319 488 
 
 Mitchener v. Atkinson, 63 N. C. R. 585 320 
 
 Mixer v. Excelsior G. & O. Co., 65 N. C. R. 552 45 
 
 Mode v. Long, 64 N. C. R. 433 378 
 
 Monday, Melton v 64 N. C. R. 295 219 
 
 Monroe, Colvord v 63 N. C. R. 288 243 
 
 Monroe, Williams v 67 N. C. R. 133 58 443 
 
 Monroe, Williams v 67 N. C. R. 164 479 
 
 Moody, Walker v 65 N. C. R. 599 438 448 
 
 Moody, Love v 68 N. C. R 200 344 
 
 Moody, State v 69 N. C. R. 529 415 
 
 Mooney, Atkin v Phil. L. R. 31 54 181 
 
 Mooney , State v Phil. L. R. 434 32 
 
 Mooney, State v 64 N. C. R. 54 170 
 
 Moore v. Mitchell, Phil. L. R. 304 2S3 
 
 Moore v. Miller, Phil. Eq. R. 359 187 196 
 
 Moore, Mitchell v Phil. Eq. R. 281 400 
 
 Moore, Williams v Phil. Eq. R. 211 353 
 
 Moore, Ex parte 63 N. C. R. 397 92 
 
 Moore, Smith v 63 N. C. R. 138 350 
 
 Moore, in re 64 N. C. R. 398 92 
 
 Moore, Ex parte, 64 N. C. R. 90 490 
 
 Moore v. Boudinot, 64 N. C. R. 190. . . . . . 68 
 
 Moore, Dodson v 64 N. C. R. 512 107 
 
NAMES OF CASES. XLV 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Moore, Furman v 64 N. C. E. 358 197 
 
 Moore, Hilliard v 65 N. C. E. 510 (see errata.) 
 
 Moore v. Byers, 65 N. C. E. 240 198 276 
 
 Moore, EiJJick v 65 N. 0. E. 382 187 446 
 
 Moore, Green v 66 N. C E. 425. . . . : 381 439 
 
 Moore v. N. C. E. E. Co., 67 N. C. E. 209 (see errata ) 
 
 Moore, Islerv 67 N. C. E. 74 448 
 
 Moore v- Shields 68 N. C. E. 327 201 
 
 Moore v. Ballard ' 69 N. C. E. 21 116 
 
 Moore v. Shields 69 N. C. E. 50 227 
 
 Moore, State v G9 N. C. E. 267 237 
 
 Moore v. Thompson, 69 N. C. B. 120 379 
 
 Moore v. Com'rs of Alamance, . . 70 N. C. E. 340 114 
 
 Moore v. Edmiston, 70 N. C. E. 471 345 
 
 Moore v. Edmiston, 70 N. C E. 510 359 
 
 Moore, Maynard v 70 N. C. E. 546 137 
 
 Moore, N. C. E. E. Co. v 70 N. C. E. 6 412 
 
 Moorman, Leak v Phil. L. E. 168 36 
 
 Mordecai, State v 68 N. C. E. 207 63 259 
 
 Morehead, Cracoff v 67 N. C. B. 422 241 268 
 
 Morehead, State v 65 N. C E. 681 39 
 
 Morehead, Foy v 69 N. C. E. 512 373 
 
 Morgan, Davis v 64 N. C. B. 570 54 
 
 Morgan v. Hubbard, 66 N. C. B. 394 1C1 
 
 Morris v. Avery, Phil. L. E. 238 1 
 
 Morris, Perry v 65 N. C. E. 221 277 
 
 Morris v. Whitehead, 65 N. C. E. 637 94 291 
 
 Morris, Bryant v 69 N. C. B. 444 150 
 
 Morrisey, Croom v 63 N. C. E. 591 404 
 
 Morrison, Kidd v Phil. Eq. E. 31 112 
 
 Morrison v Cornelius, 63 N. C. E. 346 3 19 
 
 Morrison, McNeill v 63 N. C E. 508 4°8 
 
 Morrison v. White, 67 N. C. E. 253 140 24! 423 
 
 Morrison, Lawrence v 68 N. C. E. 162 225 
 
 Morrow v. Alman, 65 N. C. E. 508 388 
 
 Mott v. Tate, 66 N. C. E. 214 333 
 
 Moye v.Pope, G4 N. C. E. 543 441 
 
 Moye v. Cogdell, 66 N. C E. 403 390 
 
 Moye v. Cogdell, 69 N. C. E. 93 42 
 
 Murphy v. Merritt, 63 N. C E. 502 £84 
 
 Murphy, Cronly v 64 N. C. E. 489 175 
 
 Murphy v. Harrison, 65 N. C. R. 246 202 Lfi9 
 
 .Murphy, Larking v 68 N. C. E. 381 420 
 
 Murphy, Eerring v 70 N. C. R. 104 422 
 
XL VI NAMES OF GASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Murphy v. Wilmington & W. R. 
 
 R. Co, 70 N. C. R. 437 4 
 
 Murray, Boyd v Phil. Eq. R. 338 177 
 
 Murray, Newlin v 63 1ST. C. R. 566 179 
 
 Murray, State v 63 N. C. R. 31 167 
 
 Murray, Harden v 68 N. C. R. 534 398 
 
 Musgrove, Eagin v Phil. L. R. 13 384 
 
 Myerfield, State v Phil. L. R. 108 31 
 
 Myers v Credle, 63 N. C. R. 504 426 
 
 Myers v Hamilton, 65 N. C. R. 567 291 
 
 Nash, Whitted v 66 N. C. R. 590 199 389 
 
 Nash v. Wilmington & W. R. R. 
 
 Co., 67 N. C. R. 413 63 
 
 Nash, Hadley v 69 N. C. R. 162 278 486 
 
 Naylor, Frost v 63 N. C. R. 325 234 
 
 Neal v. Lee, 64 N. C. R. 678 370 445 
 
 Neal v. Cowles, 70 N. C. R. 124 81 
 
 Neeley v. Craige, Phil. L. R. 187 281 
 
 Neighbors, Hoover v '. 61 N. C. R. 429 28 
 
 Neighbors v. Jordan, 70 N. C. R. 406 204 
 
 Nelson v. Blue, 63 N. C. R. 659 317 377 
 
 Neuse River F. Co., Barrington v 69 N. C. R. 165 207 
 
 Neville, Johnson v 65 N. C. R. 677 138 139 3G5 
 
 Neville, Johnson v 68 N. C. R. 177 14 362 
 
 Newberne, Keeler v Phil. L. R. 505 174 348 
 
 Newberne v. Jones, 63 N. C. R. 606 41 
 
 Newberne, McLiu v, 70 N. C. R. 12 471 
 
 Newberne, Smith v 70 N. C. R. 14 471 
 
 Newberry, Haughtou v 69 N. C. R. 453 06 
 
 Newby, State v 64 N. C. R. 23 258 
 
 Newlin v. Murray, 63 N. C. R. 566 179 
 
 New York W. S. Co., Clegg v. . 66 N. C. R. 391 287 
 
 New York W. S. Co., Clegg v. . 67 N. C. R. 302 288 
 
 Nichols, Dunn v 63 N. C. R. 107 ISO 
 
 Nicholson, Parsley v 65 N. C. R. 207 364 
 
 Nixon, Bledsoe v 68 N. C. R. 521 118 461 
 
 Nixon, Bledsoe v 69 N. C R. 81 24 344 
 
 Nixon, Bledsoe v 69 N. C. R. 89 273 
 
 Nixon, Hoar v 69 N. C R. 108 235 
 
 Nobles v. Langly, 66 N. C. R. 287 427 
 
 Norfleet v. Cromwell, 64 N. C. R. 1 135 
 
 Norfleet v Cromwell, 70 N. C. R. 634 118 
 
 North Carolina L. Co. v. Beatty, 69 N. C. R. 329 363 
 
 North Carolina It. R. Co., Ben- 
 bow v Phil. L. R. 421 73 
 
NAMES OF CASES. 
 
 XLY1L 
 
 NAMES OF PARTIES. REPORTER. 
 
 North Carolina M. L. In. Co., 
 
 Conigland v Phil. Eq. R. 341 . . 
 
 North Carolina R. R. Co., Pee- 
 bles v 63 N. C. R. 238 . 
 
 North Carolina R. R. Co., Tur- 
 ner v 63 N. C. R. 522.. 
 
 North Carolina R. R. Co., Pat- 
 terson v 64 N. C. R. 147. . 
 
 North Carolina R. R. Co., Smith 
 
 v 64 N. C. R. 235.. 
 
 North Carolina R. R. Co., Coon 
 
 v 65 N. C. R. 507.. 
 
 North Carolina R. R. Co., Lam- 
 beth v 66 N. C. R. 494. . 
 
 North Carolina R R. Co., Bur- 
 roughs v 67 N. C. R. 396. . 
 
 North Carolina R. R. Co., Jones 
 
 v 67 N. C. R. 122.. 
 
 North Carolina R. R. Co., Mc- 
 
 Combs v 67 N. C. R. 193.. 
 
 North Carolina R. R. Co., Smith 
 
 v 68 N. C. R. 107.. 
 
 North Carolina R. R. Co., v 
 
 Moore, 70 N. C. R. 6 . . 
 
 North Carolina R. R. Co., Dowd 
 
 v 70 N. C. R. 468 . 
 
 North Carolina R. R. Co., Jones 
 
 v 70 N. C. R. 626 . . 
 
 North Carolina R. R. Co., Mc- 
 
 Combs v 70 N. C. R. 178. , 
 
 North Carolina O. D. Co., Jink- 
 ins v C5 N. C. R. 563 . 
 
 North Western N. C. R R. Co., 
 
 v. Jenkins, 65 N. C. R. 173 . 
 
 Norris, Thomas v 64 N. C. R. 780 
 
 Norton v. Edwards, 6G N. C. P. 367. 
 
 Norton v. Merrimon, 67 N. C. R. 115. 
 
 Norwood v. Thorp, 64 N. C. R. 682 
 
 Norwood v. Harris, 69 N. C. R. 204 
 
 Nowoll, Turley v Phil. Eq. R. 301 . . 
 
 Nntt, State v Phil. L. R. 20 
 
 Nutt v. Thompson, 69 N. C. R. 548 
 
 Oates, Carson v 64 N. C. R. 115 
 
 Oates v. Gray, 66 N. C. R. 442. 
 
 Oates v. Kendall, 67 N. C. R. 241 . 
 
 PAGE OP DIGEST. 
 
 Ill 
 2 
 
 406 
 
 408 
 
 72 
 
 411 
 
 73 
 
 412 
 
 174 
 
 . 44 155 396 
 
 153 157 
 
 412 
 
 81 
 
 5 
 
 8 
 
 367 3S9 
 
 331 
 
 330 
 
 193 
 
 375 
 
 71 
 
 14 
 
 76 98 
 
 253 457 
 
 421 
 
 196 
 
 281 363 
 
 157 363 
 
XLVIII NAMES OF OASES. 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Ogburn v. Teague, 67 N. C. R. 355 390 443 
 
 Oldham, Roberts v 63 N. C. R. 297 178 353 
 
 O'Hagan, Bland v 64 N. C. R. 471 20 
 
 Oliveira v. The University, Phil. Eq. R. 69 301 359 
 
 Oliver v. Perry, Phil. L. R. 581 1 
 
 Oliver, State v 70 N. C. R. 60 34 
 
 Osborne, Johnston v Phil. Eq. R. 59 319 
 
 Osborne v. Johnston, 65 N. C. R. 22 62 378 
 
 Osborne v. Henry, 66 N. C. R. 354 (see errata.) 
 
 Osborne, Ledbetter v 66 N. C. R. 379 287 417 
 
 Osborne, Dobbins v 67 N. C. R. 259 149 224 
 
 Osgood, Mason v 64 N. C. R. 467 . ... 191 
 
 Outlaw, Herring v 70 N. C. R. 334 298 
 
 Overman v. Grier, 70 N. C. R. 693 201 
 
 Owen, State v Phil. L. R. 425 305 
 
 Owen, Sutton v 65 N. C. R. 123 220 
 
 Pace, Dixon v 63 N. C. R. 603 9 
 
 Pace v. Robertson, 65 N. C. R. 550 54 
 
 Paine v. Caldwell, 65 N. C. R. 488 472 
 
 Painter, State v 70 K C. R. 70 25l 
 
 Palin v. Small 63 N. C. 3. 484 354 
 
 Palin, State v 63 N. C. R. 471 52 
 
 Palmer v. Anderson, 63 N. C. R. 365 (see errata.) 
 
 Palmer, Deal v 68 N. C. R. 215 288 346 
 
 Parham v. Green 64 N. C. R. 436 460 
 
 Parker v. Shannonhouse, Phil. L. R. 209 83 
 
 Parker v. Stallings, Phil. L. R. 590 53 
 
 Parker, State v Phil. L. R. 473 255 
 
 Parker, Weaver v Phil. L. R. 479 19 1(30 
 
 Parker v. Grammer, Phil. Eq. R. 28 261 
 
 Parker, Buie v 63 N. O. R. 131 141 
 
 Parker v. Flora 63 N. C. R. 474 57 
 
 Parker, Wood t 63 N. C. R. 379 438 
 
 Parker v. Carson, 64 N. C. R. 563 442 
 
 Parker v. Scott 64 N. C. R. 118 475 
 
 Parker v. Smith, 64 N. C. R. 291 (see errata. ) 
 
 Parker v. House, 66 N. C. R. 374 281 
 
 Parker, State v 66 N. C. R. 624 394 
 
 Parker, Davis v 69 N. C. R. 271 131 
 
 Parker, State v 65 N. C. R. 453 248 
 
 Parks, Caldwell v Phil. L. R. 54 383 
 
 Parks v. Sprinkle, 64 N. C. R. 637 182 
 
 Parrish, Grissom v Phil. Eq. R. 330 315 
 
 Parrishv. Wilhelm, 63 N. C. R. 50 375 473 
 
 Parsley v. Nicholson, 65 N. C. R. 207 364 
 
NAMES OF CASES. XLIX 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Patrick v. Joyner, 63 &. C. E. 573 264 
 
 Patrick, Blakely v 67 N. 0. E. 40 66 341 
 
 Patterskall, Vouchee v 67 N. C. E. 453 23 392 
 
 Patterson v. Patterson, 63 N. C. E. 322 128 
 
 Patterson, State v 63 S. C. E. 520 169 
 
 Patterson v. N. C. E. E. Co.,. . . 64 N. C. E. 147 408 
 
 Patterson v. Hubbs, 65 N. C. E. 117 346 
 
 Patterson,' State v 68 N. C. E. 292 165 251 
 
 Patterson, Donono v 70 N. C. E, 649 195 
 
 Patton v. Hunt, 64 N. C. E. 163 20 119 468 
 
 Patton, Luskv 70 N. C. E. 701 . 357 
 
 Paul v. Carpenter, 70 N. C. E 502 243 
 
 Pearce, Perry v 08 N. C. E. 367 289 
 
 Pearce, Lee v 68 N. C. E. 76 218 300 
 
 Pearce, Lee v 68 N. C. B. 90 211 
 
 Pearce, Creecy v 69 N. C. B. 67 
 
 Pearce, Lovinier v 70 N. C. E. 167 195 
 
 Pearman, State v Phil. L. B. 371 208 
 
 Pearsall v. Mayers, 64 N. C. E. 549 . . .21, 28, 337, 370, 485 
 
 Pearson v. Caldwell, 70 N. C. E. 291 228 381 
 
 Peebles v. N. C. E. E. Co., .... 63 N. C. E. 238 2 
 
 Peebles v. Peebles, 63 N. C. E. 656 380 
 
 Peebles v. Horfcon, 64 N. C. B. 374 215 
 
 Peebles, State v 67 N. C. E. 97 361 419 
 
 Peebles, Cox v 70 N. C. E. 10 228 
 
 Pegram v. Com'rs of Cleaveland, 64 N. C. B. 557 88 330 
 
 Pegram v. Com'rs of Cleaveland, 65 N. C. B. 114 330 
 
 Pegram v.Stoltz, 67 N. C. E. 144 150 390 454 
 
 Pelletier v. Saunders, 67 N. C. E. 261 194 
 
 Pender, State v 66 N. C. B. 646 89 
 
 Peudleton v. Dalton, Phil. Eq. E. 119 97 
 
 Pendleton v. Dalton, 64 N. C. E. 329 265 
 
 Pendletun, State v 65 N. C. E. 617 295 
 
 Penland, State v Phil. L. E. 222 247 
 
 Penny v. Smith, Phil. L. E. 35 12 
 
 People v. McKee, 68 N. C. E. 429 348 
 
 People v. Bledsoe, 68 N. C. B. 459 90 349 
 
 People v. Mclver, 68 N. C. E. 467 349 
 
 People v. Johnston, 68 N. C. E. 471 348 349 
 
 People v. McGowan, 68 N. C. E. 520 91 
 
 Peoples v. Maxwell, 64 N. C. R. 813. 148 
 
 Pepper, State v 68 N. C. E. 259 250 
 
 Perkins, Kincade v 63 N. C. E. 282 326 
 
 Perkins, State v 66 N. C. It. 126 151 306 
 
 Perry, Oliver v ....••• • Phil. L. B. 581 1 
 
 7 
 
L NAMES OF CASES. 
 
 NAMES OF PARTIES'. REPORTER. PAGE OP DIGEST. 
 
 Perry, Youngv Phil. L. R. 549 136 
 
 Perry, Campbell v 63 N. C. R. 257 . 464 
 
 Perry, Rowland v 64 N. C. R. 578 404 
 
 Perry, State v 64 N. C. R. 305 206 
 
 Perry, State v 64 N. C. R. 598 294 
 
 Perry, Teague v 64 N. C. R. 39 219 
 
 Perry v. Morris, 65 N. C. R. 221 277 
 
 Perry v. Hill, 68 N. C. R. 417 157 
 
 Perry v. Pearce, 68 N. C. R. 367 289 
 
 Perry v. Merchants Bank of N. C. 69 N. C. R. 551 35 
 
 Perry v. Merchants Bank of N. C. 70 N. C. R. 309 51 
 
 Perry, Person v 70 N. C. R. 697 463 
 
 Perry v. Tupper, 70 JST. C. R. 53S 210 
 
 Person, Hughes v 63 N. C. R. 548 . >. . . . . 30 
 
 Person, Long v 63 N. C. R. 550 30 
 
 Person, Stephenson v 63 N. C. R. 550 30 
 
 Person v. Perry, 70 N. C. R. 697 463 
 
 Peterson, Wilson v 69 N. C. R. 113 447 
 
 Petteway v. Dawson, 64 N. C. R. 450 42 
 
 Pettis v. Smith, 69 N. C. R. 3 131 
 
 Phelan v. Hutchison, Phil. Eq. R. 116 272 352 
 
 Phelps, March v Phil. L. R. 560 4S7 
 
 Phelps, State v 65 N. C. R. 450 248 
 
 Phifer, State v 65 N. C. R. 321 206 
 
 Phillips v. Hooker, Phil. Eq. R. 193 76 109 
 
 Phillips, Devriesv 63 N. C. R. 53 214 
 
 Phillips, Devriesv 63 N. C. R. 207 , 153 
 
 Phillips, State v 66 N. C. R. 646 21 
 
 Phillips v. Trezevant, 67 N. C. R. 370 354 
 
 Phillips, Blackmer v 67 N. C. R. 340 55 
 
 Phillips, Salem P. Academy v. . 68 N. C. R. 491 225 
 
 Phillips v. Davis, 69 N. C. R. 117 59 124 178 194 
 
 Phillips, Lassiter v 70 N. C. R. 462 151 
 
 Phillips v. Trezevant, 70 N. C. R. 176 114 
 
 Phillips, Witherington v 70 N. C. R. 444 357 
 
 Philpot, Duncan v 64 N. C. R. 479 452 
 
 Pinnix v. Charlotte & S. R. R. 
 
 Co., 66 N. C. R. 34 73 
 
 Pinnix v. McAdoo, 68 N. C. R. ^56 8 
 
 Pipkin, Hughes v Phil. L. R. 4 185 
 
 Pipkin, Surles v. 69 N. C. R. 513 8 
 
 Pitts, Gibson v 69 N. C- R. 155 194 
 
 Pleasants, Harralson v Phil. L. R. 365 27 
 
 Pless, Roseman v 65 K C. R. 374 198 
 
 Plott v. Western N. C. R. R. Co. 65 N. C. R. 74 3L7 411 
 
NAMES OF OASES. LI 
 
 NAMES OP PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Plummer, Allen v 63 N. C. R. 307 179 
 
 Plummer, Logan v 70 N. C. R. 388 58 
 
 Poe v. Hardie, 65 N. C. R. 447 232 
 
 Poindexter v. Davis, 67 N. C. R. 112 58 
 
 Pollock, Askew v 66 N. C. R. 49 14 115 
 
 Pollock v. Wilcox, 68 N. C. R. 46 157 
 
 Pond v. Home, 65 N. C. R. 84 4S2 
 
 Pool, Long v 68 N. C. R. 479 9 378 
 
 Pope, Move v 64 N. C. R. 543 441 
 
 Pope v. Whitehead, 68 N. C. R. 191 130 467 
 
 Pope, Dancy v 68 N. C. R. 147 200 
 
 Pope, Tull v 69 N. C. R. 183 344 
 
 Porter v. Jones, 68 N. C. R. 320 115 
 
 Porter, Fell v 69 N. C. R. 140 293 
 
 Potter, State v Phil. L. R. 338 254 
 
 Potts, Houston v 64 N. C. R. 33 482 
 
 Potts, Houston v 65 N. C. R. 41 374 
 
 Powe, Tatev 64 N. C. R. 644 296 331 
 
 Powell v. Howell, 63 N. C. R. 283 302 
 
 Powell v. Hill, 64 N. C. R. 169 467 
 
 Powell v. Lash, 64 N. C. R. 456 336 
 
 Powell v. Smith, 66 N. C. R. 401 55 
 
 Powell v. Weith, 66 N. C. R. 423 287 
 
 Powell v. Jones, 67 N. C. R. 126 485 
 
 Powell v. Weith, 68 N. C. R. 342 . 289 
 
 Powell v. Wilmington <fe Weldon 
 
 R. R. Co 68 N. C. R. 395 397 
 
 Powell, State v 70 N. C. R. 67 252 
 
 Prince, State v 63 N. C. R. 529 2<jg 
 
 Price v. Gaskins, Phil. Eq. R. 224 326 
 
 Price, Thigpen v Phil. Eq. R. 146 459 474 
 
 Pritchett, Andrews v 66 N. C. R. 387 389 
 
 Privett, Brogden v 67 N. C. R. 45 41 
 
 Pugh v. Ral. & Gas. R. R. Co.,. Phil. L. R. 357 457 
 
 Puitt, Tuttle v 68 N. C. R. 543 130 318 
 
 Pullen v. Com'rs of Wake 66 N. C. S. 361 464 
 
 Pullen v. Hutchins, 67 N. C. R. 428 324 
 
 Pullen v. Com'rs of Raleigh, ... 68 N. C. R. 451 470 
 
 Pulley, State v 63 N. C. R. 8 31 168 
 
 Purdie, State v 67 N. C. R. 25 250 
 
 Purdie, State v 67 N. C. R. 326 155 250 
 
 Purser v. Simpson 65 N. C. R. 497 223 
 
 Purvis v. Jackson, 69 N. C. R. 474 70 279 364 
 
 Putney, State v Phil. L. R. 543 309 
 
 Queen, State v. . , GO N. C. R. 015 415 
 
LII NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Bagland v. Currin, 64 N. C. E. 355 70 302 
 
 Raleigh & Augusta A. L. R. R. 
 
 Co. v. Jenkins, 68 N. 0. R. 499 410 
 
 Raleigh & Augusta A. L. R. R. 
 
 Co. v. Jenkins, 68 K C. R. 502 334 
 
 Raleigh & Gaston R. R. Co., 
 
 Pugh v Phil. L. R. 359 457 
 
 Raleigh & Gaston R. R. Co., 
 
 Vaughanv 63 N. C. R. 11 158 
 
 Raleigh & Gasion R. R. Co. v. 
 
 Reid, 64 N. C. R. 155 
 
 Ramsay v. Hanner, 64 N. C. R. 668 
 
 Ramsay, McNinch v 66 N. C. R. 229 
 
 Ramsour v. Ramsour 63 N. C. R. 231 
 
 Ramsour, Shuford v 63 N. C. R. 622 
 
 Ramsour v. Ramsour, 65 N. C. R. 628 
 
 Ramsour, Frey v 66 N. C. R. 466 
 
 Rand v. State of North Carolina, 65 N. C. R. 194 
 
 Rankin v. Allison, 64 N. C. R. 673 
 
 Rankin, Johnson v 70 N. C. R. 550 
 
 Ransom v. Lewis, 63 N. C. R. 43 
 
 Ransom v. McClees, 64 N. C. R. 17. . .109 366 
 
 Rawles, State v 65 N. C. R. 334 
 
 Ratts, State v 63 N. C. R. 503 
 
 Raxter, Loftis v 66 N. C. R. 340 
 
 Ray, McKay v 63 N. C. R. 46 
 
 Rea, Howie v 70 N. C. R. 559 
 
 Reade v. Hamlin, Phil. Eq. R. 128 
 
 Reddick v. Moore 65 N. C. R. 382 
 
 Redman v. Turner, 65 N. C. R. 445 
 
 Redman v. Redman 65 N. C. R. 546 
 
 Redman v. Redman, 70 N. C. R. 257 
 
 Redmond v. Burroughs, 63 N. C. R. 242 
 
 Reece v. Reece, 66 N. C. R. 377 
 
 Reed v. Farmer, 69 N. C. R. 533 
 
 Reeves, Adams v 68 N. C. R. 135 
 
 Reid v. Ral. & Gas. R. R. Co. , . . 64 N. C. R. 155 
 
 Reid v. Wil. & Wei. R. R. Co.,. 64 N. C. R. 226 
 
 Reid v. Spoon, 66 N. C. R. 415 
 
 Reiger v. Davis, 67 N. C. R. 185 
 
 Reiger v. Com'rs of Beaufort, . . 70 N. C. R. 319 
 
 Reilly, Lute v 65 N. C. R. 20 
 
 Reinhardt, State v 63 N. C. R. 547 
 
 Reitzel v. Eckard, 65 N. C. R. 673 
 
 Reynolds v. McKenzie, Phil. Eq. R. 
 
 
 86 
 
 
 197 
 
 
 61 
 
 
 29 5 
 
 
 9 
 
 
 202 
 
 145 
 
 479 
 
 
 67 
 
 359 
 
 372 
 
 91 
 
 471 
 
 
 136 
 
 370 
 
 374 
 
 
 34 
 
 
 247 
 
 
 113 
 
 
 270 
 
 
 108 
 
 54 
 
 484 
 
 187 
 
 446 
 
 
 199 
 
 
 21 
 
 
 150 
 
 316 
 
 458 
 
 
 384 
 
 
 28 
 
 355 
 
 397 
 
 
 86 
 
 
 87 
 
 
 280 
 
 217 
 
 396 
 
 
 471 
 
 
 232 
 
 
 337 
 
 
 491 
 
 261 
 
 301 
 
NAMES OF CASES. 
 
 LIII 
 
 NAMES OF PARTIES. 
 
 Reynolds v. State of N C, 
 
 Reynolds, McCandless v 
 
 Reynolds, State v 
 
 Reynolds, Hardy v 
 
 Rhodes in re 
 
 Rhodes, State v 
 
 Rhyne v. "Wacasser, 
 
 Rhyne, Taylor v * 
 
 Rhyne, Grier v 
 
 Rhyne, Grier v 
 
 Rice v. Keith, 
 
 Rice, Stilley v 
 
 Rich, Henry v 
 
 Richards v. Baurman, 
 
 Richards v. Schegelrnith, 
 
 Richardson, Bingham v 
 
 Richmond & Danville R. R. Co., 
 
 Turner v 
 
 Richardson, Martin v 
 
 Riddick v. Hinton, 
 
 Riddick v. Moore, 
 
 Riddle, McXeill v 
 
 Rintels, Sharpe v 
 
 Rintels, Alexander v 
 
 Rippy, Darwin v 
 
 Ritchey, Fisher v 
 
 Rivers, Council v 
 
 Robards, Elliott v 
 
 Robbins, Ex parte, 
 
 R jberts v. Oldham, 
 
 Roberts v. Roberts, 
 
 Roberts v. Roberts, 
 
 Roberts, Hutcheson v , 
 
 Robertson, Pace v 
 
 Robeson v. Brown, 
 
 Robeson v. Lewis, 
 
 Robinson, Baker v 
 
 Robinson v. Mclver, 
 
 Robinson, "White v 
 
 Robinson v. Willoughby, 
 
 Robinson v. Willoughby, 
 
 Robinson, Cannon v 
 
 Robinson v. Willoughby, 
 
 Rockwell, Wil l iums v , 
 
 Rogers v. Hi 77 
 
 REPORTER. PAGE OF DIGEST. 
 
 64 X. C. R. 460 67 
 
 67 X. C. R. 268 158 
 
 68 N. C. R. 264 68 
 
 69 X. C. R. 5 51 274 
 
 65 X. C. R, 516 93 
 
 Phil. L. R. 453 32 
 
 63 X. C. R. 36 362 
 
 65 X. C. R. 530 232 
 
 67 X. C. R. 338 38 105 
 
 69 X. C. R. 346 105 
 
 63 X. C. R. 319 148 
 
 67 X. C. R. 178 183 
 
 64 X. C. R. 379 179 374 
 
 65 K C.R.I 62 266 354 
 
 65 X. C. R. 150 103 122 
 
 Phil. L. R. 315 382 
 
 70 X. C. R. 1 412 
 
 68 X. C. R. 255 446 
 
 Phil. L. R. 291 184 
 
 65 X. C. R. 382 187 446 
 
 66 X. C. R. 290 137 379 479 
 
 Phil. L. R. 34 282 
 
 64 X. C. R. 634 412 
 
 63 X. C. R. 318 (See errata.) 
 
 64 X. C. R. 172 408 
 
 65 X. C. R. 54 438 
 
 70 X. C R. 181 105 
 
 63 X. C. R. 309 92 
 
 63 X. C. R. 297 178 353 
 
 64 X. C. R. 693 271 
 
 65 X. C. R. 27 477 
 
 67 X. C. R. 223 361 
 
 65 X. C. R. 550 54 
 
 63 X. C. R. 554 86 440 
 
 64 X. C. R. 734 21 156 
 
 63 X. C. R. 191 54 
 
 63 X. C. R. 645 317 320 324 
 
 64 X. C. R. 698 221 
 
 65 X. C. R. 520 339 
 
 67 X. ('. R 84 13 
 
 67 N. O. R. 53 (See errata.) 
 
 70 X. C. R. 358 341 
 
 .. C. R. 325 2-0 
 
 239 
 
LIV NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Rogers v. Holt, Phil. Eq. R. 108 328 
 
 Rogers, ex parte, 63 N. C. R. 110 493 
 
 Rogers v. Hinton, 63 N. C. R. 78 240 
 
 Rogers v. Goodwin, 64 N. C. R. 278 21 343 
 
 Rogers, Sluder v 64 N. C. R. 289 232 
 
 Rogers v. McKenzie, 65 N. C. R. 218 186 
 
 Rogers, Smith v 65 N. C. R. 181 327 
 
 Rogers, Thompson v 69 K C. R. 357 354 
 
 Rollins. Duvall v 68 N. C. R. 220 234 
 
 Rose v. Coble, Phil. L. R. 517 144 378 
 
 Rose, State v Phil. L. R. 406 166 
 
 Rose v. Rose, 63 K C. R. 391 489 
 
 Roseman v. Pless, 65 N. C. R. 374 198 
 
 Roseman, State v 66 N. C. R. 634 172 
 
 Roseman, Lippard v 70 N. C. R. 34 ..... . 421 
 
 Roseman, State v 70 N. C R. 235 399 
 
 Ross v. Alexander, 65 N. C. R. 576 277 
 
 Ross, Hemphill v 66 N. C. R. 477 340 
 
 Rountree v. Barnett, 69 N. O. R. 76 70 403 
 
 Rouse, Swepson v 65 N. C. R. 34 45 381 474 
 
 Rowark v. Holmesly, 68 N. C. R. 91 31 
 
 Rowark v. Gaston, 67 N. C. R. 291 114 
 
 Rowland, Leffler v Phil. Eq. R. 143 324 
 
 Rowland v. Perry, 64 N. C. R. 578 404 
 
 Rowland v. Thompson, 64 N. C. R. 714 18 296 
 
 Rowland v. Thompson, 65 N. C. R. 110 297 
 
 Rowland v. Hilliard, 68 K C. R. 506 29 
 
 Rowland v. Gardner, 69 N. C. R. 53 362 3S5 
 
 Royster v. Royster Phil. L. R. 226 124 
 
 Royster, Haskins v 70 N. C. R. 601 106 
 
 Royster, State v 65 N. C. R. 539 312 
 
 Rucker, State v 68 N. C. R. 211 250 
 
 Ruffin v. Com'rs of Orange, ... 69 N. C. R. 498 466 
 
 Rush v. Halcyon Steamboat Co., 67 N. C. R. 47 23 
 
 Rush v. Halcyon Steamboat Co , 68 N. C. R. 72 18 24 
 
 Rushing, State v 69 N. C. R. 26 414 
 
 Russ v. Gulick, 64 N. C. R. 301 266 
 
 Russell v. Adderton, 64 N. C. R. 417 117 
 
 Russell v. Stewart, 61 N. C. R. 487 101 
 
 Rycraft, Laws v 64 N. C. R. 100 440 
 
 Sackett, Holmes v 63 N. C. R. 58 37 
 
 Salem Female Acad'y v. Phillips, 68 N. C. R. 491 225 
 
 Balms v. Martin, 63 N. C. R. 608 124 
 
 Sampson v. At. & N. C. R.R.Co. , 70 N. C. R. 404 25 
 
 Sanders, Eason y . , , 05 N. C. R. 216 377 419 
 
NAMES OF OASES. LV 
 
 ttAMES of parties. reporter. page op digest. 
 
 Sanders, Springs v Phil. Eq. E. 67 97 
 
 Sanders, Smitherinan v 64 N. C. R. 522 409 
 
 Sanders, Wade v 70 N. C. R. 270 146 218 450 
 
 Sanders, Wade v 70 N. C. R. 277 137 
 
 Sapona Iron Co. v. Holt, 64 N. C. R. 335 106 
 
 Satchwell, Willard v 70 N. C. R. 268 454 
 
 Saulsbury v. Cohen, 68 N. C R. 289 418 
 
 Saunders, Jarman v 64 N. C. R. 367 265 266 285 
 
 Saunders v. Jarman, 67 N. C. R. 86 443 
 
 Saunders v. Pelletier, 67 N. C. R. 361 194 
 
 Savage v. Carter 64 N. C. R. 196 360 
 
 Savage, Cherry v 64 N. C. R. 103 441 
 
 Sawyer, Wood v Phil. L. R. 251 19 173 493 
 
 Sawyer, Grandy v Phil. Eq. R. 8 314 
 
 Schlachter, State v Phil. L. R. 520 238 
 
 Schenck, Ex parte, 63 N. C. R. 601 386 
 
 Schenck, in re, 65 N. C. R. 353 42 
 
 Schlejelmich, Richards v 65 N. C. R. 150 103 122 
 
 Schonwald v. Schonwald, Phil. Eq. R. 215 133 
 
 School Committee v. Kesler, ... 66 2\ T . (J. R. 323 22 
 
 School Committee v. Kesler, ... 67 N. C. R. 443 121 123 414 
 
 Scott v. Elliott, Phil. L. R. 104 473 
 
 Scott v. Elliott, 63 N. C. R. 215 425 
 
 Scott, Parker v 64 N. C. R. 118 475 
 
 Scott, Statev 64 N. C. R. 586 310 393 
 
 Scott v. Wilkie, 65 N. C. R. 376 45 
 
 Scott v. Walton, 67 N. C. R. 109 449 
 
 Scott, Bryant v 67 N. C. R. 391 424 
 
 Sears, State v Phil. L. R. 146 83 253 
 
 Sears v. McBride, 70 N. C. R. 152 127 
 
 Sedberry, Johnson v. 65 N. C. R. 1 277 433 
 
 Sedberry v. Com'rs of Chatham, 66 N. C. R. 486 331 332 
 
 Sellars v. Johnson, 65 N. C. R. 104 105 
 
 Sellars, Staley v 65 N. C. R. 467. 69 
 
 Setzer v. Com'rs of Catawba, ... 64 N. C. R. 516 409 
 
 Setzer v. Lewis, 69 N. C. R. 133 186 
 
 Setzer, Com'rs of Catawba v . . . . 70 N. C. R. 420 356 
 
 Seymour v. Cohen 67 N. C. R. 345 346 
 
 Shaunonhouse, Banks v Phil. L. R. 284 204 
 
 Shannonhouse, Parker v Phil. L. R. 209 83 
 
 Shaunonhouse, Whedbee v Phil. Eq. R. 283 141 
 
 Sharpe v. Riutels Phil. L R. 34 2S-2 
 
 Sharpe, Williams v 70 N. C. R. 582 14 
 
 Sharpe, Walker v 68 N. C. R. 363 480 
 
 Sharpe, At., T. & O. R. R. Co. v. 70 N. C. R. 909 210 
 
LVI NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Shaver, Davis v Phil. L. E. 18 19 282 401 
 
 Shaver v. Shoemaker, Phil. Eq. E. 327 59 98 120 
 
 Shaver v. Coni'rs of Salisbury, . . 68 N. C. E. 291 471 
 
 Shaw, McNeill v Phil. Eq. E. 91 437 
 
 Shaw v. Vincent, 64 K C. E. 690 101 
 
 Shaw, West v 67 N. C. E. 483 62 
 
 Shaw v. Coble, 63 N. C. E. 377 220 
 
 Shaw, Humphries v 63 N. O. E. 341 128 
 
 Shelton v. Fells, Phil. L. E. 178 184 
 
 Shelton, State v 65 N. C. E. 294 16 171 
 
 Shelton v. Davis, 69 N. C. E. 324 358 
 
 Sherrard, Wootten v 68 N. C. B. 334 80 469 
 
 Sherrell, Ghormly v 66 N. O. E. 527 303 
 
 Shields, Moore v 68 N. C. E. 327 201 
 
 Shields v. Jones, 6S N. C. E. 488 201 
 
 Shields, Alsobrook v 67 N. C. E. 333 66 
 
 Shields, Watson v 67 N. C. E. 235 2S8 
 
 Shields, Moore v 69 N. C. B. 50 227 
 
 Shipman, Turner v 65 N. C. E. 623 367 454 
 
 Shipp v. Hetrick, 63 N. C. E. 329 77 
 
 Shirley, State v 64 N. C. E. 610 237 
 
 Sheaf, State v 68 N. C. E 375 172 
 
 Shober, Happock v 69 N. C. E. 153 278 
 
 Shoemaker, Shaver v Phil. Eq. E. 327 59 98 120 
 
 Shoffner, Foust v Phil. Eq. E. 242 98 
 
 Shortridge v. Macon, Phil. L. E. 392 406 
 
 Shuford v Eamsour, 63 N. C. E. 622 9 
 
 Shuford, State v 69 N. C. E. 486 155 165 
 
 Shuler v. Bryson, 65 N. C. E. 201 40 
 
 Simmons v. Simmons, Phil. Eq. E. 63 133 
 
 Simmons v. Wilson, 66 N. C. E. 336 464 
 
 Simmons, State v 66 N. C. B. 622 426 
 
 Simmons v. Cahoon, 68 N. C. E. 393 105 
 
 Simmons v. Hassell, 68 N. C. E. 213 225 439 
 
 Simons, State v 68 N. C. E. 378 251 
 
 Simons, State v 70 N. C. E. 336 252 
 
 Simonton v. Chipley, 64 N. C. E. 152 10 20 
 
 Simonton v. Clark, 65 N. C. E. 525 327 
 
 Simpson v. Sutton, Phil. L. E. 112 184 
 
 Simpson v. Simpson, 63 N. C. E. 534 20 382 
 
 Simpson v. Simpson, 70 N. C. E. 427 404 
 
 Simpson, Purser v 65 N. C. E. 497 223 
 
 Sims, McCown v 69 N. C. E. 159 338 
 
 Sinclair, Barry v Phil. L. E. 7 2 36 
 
 Sinclair y. State of N. C, 09 N. C. E. 47 67 465 
 
KAMES Oi? OASES. LYII 
 
 NAMES OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Singletary v, Whitaker, Phil. Eq. R. 77 437 
 
 Singletary, Evans v 63 N. C. R. 205 190 
 
 Skinner, Latham v Phil. Eq. R. 292 302 485 
 
 Skinner v. Maxwell, 66 N. C. R. 45 260 303 
 
 Skinner v. Maxwell, 67 N. C. R. 257 65 
 
 Skinner v. Maxwell, 68 N. C. R. 400 414 
 
 Sledge v. Blum, 63 N. C. R. 374 19 264 488 
 
 Sloan, Charleton v 64 N. C. R. 702 43 
 
 Sloan, Lewis 68 N. C. R. 557 47 398 
 
 Sloan, Mitchell v 69 N. C. R. 10 25 
 
 Sloan, Martin v 69 N. C. R. 128 268 269 403 
 
 Sloan, State v 67 N. C. R. 357 246 
 
 Sluder, Woodfin v Phil. L. R. 200 60 83 156 
 
 Sluder v. Rogers, 64 N. C. R. 289 232 
 
 Sluder, Wells v 70 N. C. R. 55 228 
 
 Sluder, Wells v 68 N. C. R. 150 18 
 
 Small, Palin v 63 N. C. R. 484 354 
 
 Sinallwood, Jacobs v 63 N. C. R. 112 232 
 
 Smith, State v Phil. L. R. 340 247 
 
 Smith, State v Phil. L. R. 302 254 343 414 
 
 Smith, Grissett v Phil. L. R. 164 210 
 
 Smith, Grissett v Phil. L. R. 297 401 
 
 Smith, Penny v Phil. L. R. 35 12 
 
 Smith, Sneed v Phil. L. R. 595 174 393 
 
 Smith v. Bryson, Phil. Eq. R. 267 353 
 
 Smith v. Coble Phil. Eq. R. 332 98 
 
 Smith, Hargrove v Phil. Eq. R. 165 97 
 
 Smith, Gibson v 63 N. C. R. 103 99 
 
 Smith v. Mcllwaine, 63 N. C. R. 95 385 
 
 Smith v. Mitchell, 63 N. C. R. 620 19 
 
 Smith v. Smith, 63 N. C. R. 637 495 
 
 Smith v Moore, 63 N. C. R. 138 350 
 
 Smith, State v 63 N. C. R. 234 248 
 
 Smith v. Dewey. 64 N. C. R. 463 266 
 
 Smith, Garrett v 64 N. C. R. 93 407 
 
 Smith v. Gilmer, 64 N. C. R. 546 490 
 
 Smith, Hughes v 64 N. C. R. 493 494 
 
 Smith v. Love, 64 N. C. R. 439 107 
 
 Smith v. N. C. R. R. Co., 64 N. C. R. 235 72 
 
 Smith, Parker v 64 N. C. R. 291 281 
 
 Smith, Smithdeal v 64 N. C. R. 52 495 
 
 Smith, State v 65 N. C. R. 369 456 
 
 Smith v. Webb, 64 N. C. R. 541 107 
 
 Smith, Swain v 65 N. U. R. 211 417 
 
 Smith, Williams v 65 N. C. R. 87 482 
 
 8 
 
LVIII 
 
 NAMES OF OASES. 
 
 R. 181. 
 R. 537. 
 154. 
 
 401. 
 
 620. 
 245. 
 
 R. 
 R. 
 
 NAMES OF PARTIES. REPORTER. 
 
 Smith, Woody v 05 N. C. R. 116 
 
 Smith v. Rogers, 65 N. C. 
 
 Smith, Baucom v 66 N. C. 
 
 Smith, Kesler v 66 N. C. 
 
 Smith, Powell v 66 N. C. 
 
 Smith, State v 66 N. C. R 
 
 Smith, Brown v 67 N. C. R. 
 
 Smith, Matthews v 67 N. C. R. 374. . 
 
 Smith, Hutchinson v 68 N. C. R. 351 . . 
 
 Smith, Hutchinsan v 68 N. C. R. 354. . 
 
 Smith v. Hunt, 68 N. C. R. 482 . 
 
 Smith, Dancy v 68 N. C. R. 179. . 
 
 Smith, Camp v 68 N. C. R. 537. . 
 
 Smith v. N. C. R. R. Co 68 N. C. R. 107. . 
 
 Smith, Pitts v 69 N. C. R. 3 . 
 
 Smith, Stocks v 69 N. C. R, 352. . 
 
 Smith v. Mcllwaine, 70 N. C. R. 287 . . 
 
 Smith v. Newbern, 70 N. C. R. 14 .. 
 
 Smith, Tate v 70 N. C. R. 685.. 
 
 Smithdeal v. Smith, 64 N. C. R. 52 . . 
 
 Smitherman, McKay v 64 N. C. R. 47 . . 
 
 Smitherman v. Sanders, 64 N. C. R. 522 . . 
 
 Sneed v. Smith, Phil. L. R. 595 . . 
 
 Sneed, Hunt v Phil. Eq. R. 351 . . 
 
 Sneed, Hunt v 64 N. C. R. 176 . 
 
 Sneed, Hunt v 64 N. C. R. 180 , 
 
 Southerland v. Stout, 68 N. C. R. 446 . , 
 
 Southerland, Barden v 70 N. C. R. 528. 
 
 Southern Express Co., Cunning- 
 ham v 67 N. C R. 423 
 
 Southern Express Co., Froelick v 67 N. C. R. 1 
 
 Sowers v. Earnhart, 64 N. C. R. 96 . 
 
 Souls, State v Phil. L. R. 151 . 
 
 Sowers, Loftin v 65 N. C. R. 251 
 
 Spainhour, Hampton v 63 N. C. R. 569 
 
 Spainhour, Harper v 64 N. C. R. 629 . 
 
 Sparks v. Sparks, 69 N. C. R. 319. 
 
 Sparks v. Messick, 65 N. C. R. 440 . 
 
 Sparrow, Withers v 66 N. C. R. 129 . 
 
 Speed, Joyner v 68 N. C. R. 337. 
 
 Speight, State v 69 N. C. R. 72. 
 
 Spencer, State v 01 11. C. R. 316 . 
 
 Spicer, Coor v 65 N. C. R. 401. 
 
 Spicer, Fulghum v 67 N. C. R. 18. 
 
 Spivey, Futrill v 63 N. C. R. 526. 
 
 FAGE OF DIGEST. 
 
 198 
 327 
 
 55 
 
 120 457 
 
 55 
 
 415 
 
 7 
 
 108 
 
 153 
 
 203 
 157 
 
 174 
 
 159 
 
 364 
 
 235 
 
 361 
 
 318 
 
 159 
 
 131 
 
 444 
 
 399 
 
 471 
 
 273 
 
 495 
 
 77 
 409 
 393 
 262 
 295 
 297 
 483 
 
 57 
 
 405 
 
 (See errata.) 
 
 440 
 
 208 313 428 
 
 447 
 
 19 
 
 109 
 
 134 
 
 487 
 
 240 
 
 492 
 
 152 260 
 
 393 
 
 483 
 
 (See errata.) 
 
 19 
 
NAMES OF CASES. LIX 
 
 NAMFS OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Spivey, Jackson v 63 N. C. R. 261 214 
 
 Spoon, Reid v 66 N. C. R. 415 280 
 
 Sprague, Howerton v 64 K C. R. 451 265 460 
 
 Springs v. Sanders, Phil. Eq. R. 67 97 
 
 Sprinkle, Parks v 64 N. C. R. 637 182 
 
 Sprinkle v. Hutchson, 66 N. C. R. 450 268 297 
 
 Sprinkle v. Martin, 69 N. C. R. 175 229 
 
 Sprinkle v. Martin, 66 N. C. R. 55 ( 178 
 
 Sprinkle State v 65 N. C. R. 463 ' 248 
 
 Stafford, Foust v 70 N. C. R. 115 345 
 
 Staley v. Sellars, 65 N. C. R. 467 69 
 
 Stallings, Parker v Phil. L. R. 590 53 
 
 Stanback, Little v 63 N. C. R. 285 336 
 
 Stancill v. Branch, Phil. L. R. 217 12 
 
 Stancill v. Branch, Phil. L. R. 306 177 
 
 Stancill v. Calvert, 63 N. C. R. 616 140 
 
 Stanfield, Winstead v 68 N. C. R. 40 225 
 
 Stanley, Clark v 66 N. C. R. 59 347 
 
 Stanley v. Mason 69 N. C. R. 1 373 
 
 Stanly v. Massingill, 63 N. C. R. 558 10 387 
 
 Stanly, Lane v 65 N. C. R. 153 472 
 
 State v. Adair, 66 N. C. R. 298 90 171 306 
 
 State v. Adair, 68 N. C. R. 68 231 458 
 
 State v. Adams, 65 N. C. R. 537 212 
 
 State v. Alford, 68 N. C. R. 322 245 
 
 State v. Allen, 69 N. C. R. 23 251 
 
 State v. Allison, Phil. L. R. 316 51 
 
 State v.Atraan 64 N. C. R. 364 255 257 
 
 State v. Andrew, Phil. L. R. 205 162 
 
 State v. Avery, 64 N. O. R. 608 236 
 
 State v. Bailey, 65 N. C. R. 426 21 
 
 State v. Baker, 63 N. C. R. 276 256 299 
 
 State v. Baker, 65 N. C. R. 332 33 
 
 State v. Baker, 69 N. C. R. 147 259 398 
 
 State v. Baker, 70 N. O. R. 530 260 
 
 State v. Banks, Phil. L. R. 577 310 
 
 State v. Barringer Phil. L. R. 554 298 
 
 State v. Beatty, Phil. L. R. 52 247 253 
 
 State v. Beatty, 66 N. C. R. 648 53 
 
 State v. Bell, Phil. L. R. 76.... 83 348 405 463 
 
 State v. Bell, 65 N. C. R. 313 310 
 
 State v. Blackwelder Phil. L. R. 38 253 
 
 State v. Blagge, Phil. L. R. 11 463 
 
 State v. Blalock, Phil. L. R. 242 15 
 
 State, Bledsoe v 64 N. C. R. 392 67 
 
LX NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 State v. Bobbitt, 70 N. C. R. 81 358 400 
 
 State v. Branch, •. 68 N. C. B. 186 307 
 
 State v. Brantley, 63 N. C. B. 518 169 393 
 
 State v. Bray, 67 N. C. B. 283 258 
 
 State v. Brevard, Phil. Eq. B. 141 464 
 
 State v. Broadway, 69 N. C. B. 411 53 
 
 State v. Broadnax Phil. L. B. 41 236 
 
 State v. Brown 67 N. C. E. 435 397 
 
 Statev. Brown, 67 N. C. B. 470 149 
 
 State v. Brown, 67 N. C. B. 475 229 
 
 State v. Brown 68 N. C. B. 554 226 
 
 State v. Brown 70 N. C. B. 27 421 
 
 State v. Bruner 65 N. C. B. 470 171 
 
 State v. Bryant, 65 N. C. B. 327 30 
 
 State v. Buckner Phil. L. B. 558 208 
 
 State v. Bullock, 63 N. C. B. 570 257 306 
 
 State v. Bunn 65 N. C. B. 317 312 
 
 State r. Burt 64 N. C. B. 619 310 
 
 State v. Burwell, 63 N. C. B. 661 33 
 
 State v. Butler, 65 N. C. B. 309 312 
 
 State v. Campbell, 68 N. C. E. 157 24 
 
 State v. Cauble 70 N. C. B. 62 14 160 428 
 
 State v. Caudle, 63 N. C. E. 30 208 
 
 State v. Cherry 63 N. C. R. 493 31 151 169 
 
 State v. Church, 63 N. C. R. 15 33 
 
 State v. Collins, 70 N. C. R. 241 260 307 
 
 State v. Cooke, Phil. L. R. 535 15 256 
 
 State v. Covington, 70 N. C. R. 71 209 
 
 State v. Credle, 63 N. C. R. 506 20 
 
 State v, Custer, 65 N. C R. 339 483 
 
 State v. Darr, 63 N. C. E. 516 113 
 
 State v. Davidson, 67 N. C. R. 119 151 
 
 State v. Davis, 63 N. C. R. 578 163 
 
 State v. Davis 65 N. C. R. 298 294 
 
 State v. Davis, 68 N. C. R. 297 428 
 
 State v. Davis, 69 N. C. R. 313 212 259 
 
 State v. Davis, 69 N. C. R. 495 251 295 357 
 
 State v. Davis, 69 N. C. R. 383 357 
 
 State v. Deal, 64 N. C. R. 270 429 
 
 State v. Deaton, 65 N. C. R. 496 244 
 
 Statev. Dewer, 65 N. C. R. 572 63 
 
 State v. Divine, 69 N. C. R. 390 24 
 
 State v. Dobson, 65 N. C. R. 346 426 
 
 State v. Dollar 66 N. C. R. 626 495 
 
 State v. Douglass, 63 N. C. R. 500 284 306 
 
NAMES OF CASES. 
 
 LXI 
 
 NAMES OP PARTIES. REPORTER. 
 
 State v. Drake, 64 N. C. R. 589. 
 
 State v. Dula, Phil. 
 
 State v. Dula, Phil. 
 
 State v. Dunlap, 65 N. 
 
 State v 
 State v 
 State v 
 State v 
 State v 
 State v 
 State v 
 State v, 
 
 Dunlap, 65 N 
 
 Eason, 70 N 
 
 Elam, Phil. 
 
 Ellen, 68 N 
 
 Elliott, 68 N. C. R 
 
 Engelhard, 70 N. C. R 
 
 L. R. 211. 
 L. R. 437. 
 R. 491. 
 R. 288. 
 R. 88. 
 R. 460. 
 R. 281 
 124. 
 377. 
 
 Evans, 69 N. C. R. 40 
 
 219. 
 
 78 
 
 647. 
 
 563. 
 
 Fann, 65 N. C. R. 317 . , 
 
 State v. Farrow, Phil. L. R. 161 . 
 
 State v. Ferguson, 67 K C. R. 
 
 State v. Fisher, 70 N. C. R. 
 
 State v. Freeman, 66 N. C. R. 
 
 State v. Fulford, Phil. L. R. 
 
 State v. Fulkerson, Phil. L. R. 233 
 
 State v. Fulton, 66 N. C. R. 632 
 
 State v. Gaskins, 65 N. C. R. 320. 
 
 State v. Glisson, Phil. L. R. 195 
 
 State v. Graham, 68 N. C. 
 
 State v. Gwynn, Phil. L. 
 
 State v. Hairston, 63 N. C. 
 
 R. 
 R. 
 R. 
 R. 
 R. 
 
 247. 
 
 445. 
 
 415. 
 
 244. 
 13 
 R. 467 . 
 R. 612., 
 R. 668.. 
 R. 658 . 
 
 State v. Hales, 65 N. C. 
 
 State v. Hampton, 63 N. C. 
 
 State v. Haney, 67 N. C. 
 
 State v. Hanks, 66 N. C. 
 
 State r. Hanner, 64 N. C. 
 
 State v. Hare, 70 N. C. 
 
 State v. Hargett, 65 N. C. R. 669 
 
 State v. Hargrove 65 N. C. R. 466 
 
 State v. Harper, 61 N. C. R. 129 
 
 State v. Harris, 63 N. C. R. 1 
 
 State v. Harris, 64 N. C. R. 127 
 
 State v. Harrison, 69 N. C. R. 264 
 
 State v. Hairison, 69 N. C. R. 
 
 State v. Harston, 63 N. C. R. 
 
 State v. Haughton, 63 N. C. R. 
 
 State v. Hawes, 65 N. C, 
 
 State v. Haywood, Phil. L 
 
 State v. Heidelburg 70 N. C, 
 
 State v. Henderson Phil. L. R. 
 
 State v. Henderson, 66 N. C. R. 
 
 State v . Henderson 08 N. C. R. 
 
 144. 
 
 294. 
 
 491. 
 R. 301. 
 R. 37G 
 
 496. 
 
 229. 
 
 627. 
 
 348. 
 
 R 
 
 PAGE OF DIGEST. 
 248 301 
 
 166 
 
 167 255 
 253 
 
 170 394 
 
 210 
 
 51 
 
 209 
 
 172 
 
 81 
 
 251 313 
 
 (See errata.) 
 
 309 
 
 245 453 
 313 
 258 
 309 
 
 236 254 
 306 
 311 
 247 
 397 
 112 
 336 
 
 52 
 
 32 
 
 16 249 
 
 209 
 
 197 
 
 229 
 
 237 393 
 414 
 310 
 
 108 169 238 
 310 
 398 
 212 
 147 
 455 
 295 
 269 
 34 295 
 51 
 312 
 
 251 
 
 300 
 
^XII KAMBS OF CASES. 
 
 465 291 
 
 305 
 413 
 
 305 
 
 305 311 
 
 246 310 
 
 395 311 
 
 211 244 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 State, Henry v 68 N. C. E. 
 
 State v. Hicks, Phil. L. E. 441 
 
 State v. Hodges, Phil. l. E. 231 
 
 State v. Holmes, 63 N. C. E. 18 
 
 State v. Horan, Phil. l. E. 571 247 
 
 State v. Horton, 68 N. C. B. 595 246 
 
 State v. House, 65 N. C. E. 315 312 
 
 State v. Howard, G7 N. C. E. 24 244 
 
 State v. Jackson, 65 N. C. E 
 
 State v. Jarvis, 63 K C. E. 55G 
 
 State v. Jefferson, 66 N. C. E. 309 22 65 258 
 
 State v. Johnson, Phil. l. E. 140 428 
 
 State v. Johnson, Phil. L. E. 186 63 
 
 State v. Johnson, 64 N. C. R. 581 ..... . 293 
 
 State v. Johnson, 67 N. C. R. 55 172 250 258 
 
 State v. Jones, 65 N. C. E. 
 
 State v. Jones, 67 N. C. R 
 
 State v. Jones, 67 N. C. R. 285 
 
 State v. Jones, 68 N. C. E. 443 154 
 
 State v. Jones, 69 N. C. R. 16 . 
 
 State v. Jones, 69 N. C. R. 364. 
 
 State v. Jones, 70 N. C. E. 75 . 
 
 State v. Josey 64 N. C. R. 56 
 
 State v. Kearzey, Phil. L. R. 481 . 
 
 State v. Keith, 63 N. C. R. 140 . 
 
 State v. Kent, 65 N. C. R. 311 170 311 335 
 
 State v. Ketchey, 70 N. C. R. 621 
 
 State v. King, 69 N. C. R. 419 
 
 State v. Kirkham, 63 N. C. R. 246 
 
 State v. Knox Phil. l. R. 312 
 
 State v. Krebs, - . . 64 N. C. R. 604 329 
 
 State v. Lamb, 65 N. C. R. 419 211 
 
 State v. Lawson,; Phil. L. R. 47 162 
 
 State v. Leak, Phil. L. R. 450 236 
 
 State v. Ledford, 67 N. C. R. 60 312 
 
 State v. Lindsey, Phil. L. R. 468 32 252 
 
 State v. Lindhow, 69 N. C. R. 214 . 245 
 
 State v. Locust, 63 K C. R. 574 19 113 
 
 State v. Lnwhorne, 66 N. C. R. 638 163 
 
 State v. Ludwick, Phil. L. R. 401 166 167 
 
 State v. Lupton, 63 N. C. R. 483 112 
 
 State v. Lutz, 65 N. C. R. 503 464 
 
 Satev. Lytlo, 64 N. C. R. 255 133 211 
 
 S ate v. Mabry, 64 N. C. E 592 33 
 
 396 
 
 290 403 
 
 259 458 
 
 206 
 
 257 
 
 255 309 
 
 15 
 
 91 154 260 307 
 
 31 
 
 168 
 
 254 357 
 
 Stile v. Mac, 65 N. G R, 344 2Q9 
 
NAMES OF CASES. LXIII 
 
 NAMES OP PARTIES. REPORTER. PAGE OF DIGEST. 
 
 State v. Manuel, 64 K C. R. 601 149 209 257 
 
 State v. Marsh, 61 N. C. El. 37S 214 
 
 State v. Marshall, Phil. L. R. 49 166 413 
 
 State v. Martin, 69 N. C. R. 175 229 
 
 State v. Martin, Phil. L. R. 326 52 
 
 State v. Martin, 70 N. C. R. 628 400 
 
 State v. Mason, 66 N. C. R. 636 245 
 
 State v. Massage, 65 N. C. R. 480 237 
 
 State v. Matthews, 66 N. C. R. 106 163 
 
 State v. McAfee, 64 N. C. R 339 306 
 
 State v. McClure, Phil. L. R. 491 256 
 
 State v. McCurry, 63 N. C. R. 33 168 306 
 
 State v. McGalliard Phil. Eq. R. 346 359 
 
 State v. Mcintosh, 64 N. C. R. 607 52 
 
 State v. McMillan, 68 N. C. R. 410 11 313 
 
 State v. McQuaig, 63 N. C. R. 550 52 
 
 State v. McPherson, 70 N. C. R. 239 64 
 
 State v. Mercer, 67 N. O. R. 266 (see errata.) 
 
 State v. Merritt, Phil. L. R. 134 32 
 
 State v. Minton, Phil. L. R. 196 247 
 
 State v. Mitchell, Phil. L. R. 447 162 
 
 State v. Moody, 69 N. C. R. 529 415 
 
 State v. Moony, Phil. L. R. *3i 32 
 
 State v. Moony, 64 N. C. R. 54 170 
 
 State v. Moore, 69 N. C. R. 267 237 
 
 State v. Mordecai, 68 N. C. R. 207 63 259 
 
 State v. Morris, 69 N. C R. 414 150 
 
 State v. Morrison, 68 N. C. R. 162 225 
 
 State v. Murray, 63 N. C. R. 31 167 
 
 State v. Myerfleld, Phil. L. R. 108 31 
 
 State v. Newby, 64N.C.K. 23 258 
 
 State v. Nutt Phil. L. R. 20 253 457 
 
 State v. Oliver 70 N. C. R. 60 34 
 
 State v. Owen, Phil. L. R. 425 305 
 
 State v. Painter, 70 N. C. R. 70 252 
 
 State v. Palin, 03 N. C. R. 471 52 
 
 State v. Parker, Phil. L. R. 473 255 
 
 State v. Parker, 65 N. C. R. 453 171 248 
 
 State v. Parker, 66 N. C. R. 624 394 
 
 State v. Patterson, 68 N. C. R. 292 165 251 
 
 State v. Patterson, 63 N. C. R. 520 169 
 
 State v. Pearmon, Phil. L. R. 371 208 
 
 State v. Peebles, 67 N. C. R. 97 361 419 
 
 State v. Peebles, 70 N. C. R. 10 228 
 
 State v. Pender, 06 N. C. R. 313 89 
 
LXIV NAMES OF CASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 State v. Pendleton, 65 N. C R. 617 295 
 
 State v. Penland, Phil. L. R. 222 247 
 
 State v. Pepper, 68 N. C. R. 259 250 
 
 State v. Perkins, 66 N. C. R. 126 151 306 
 
 State v. Perry, 64 K C. R. 305 206 
 
 State v. Perry, 64 N. C. R. 598 294 
 
 State v. Phelps, 65 N. C. R. 450 248 
 
 State v. PhiEer,. 65 N. C. R. 321 206 
 
 State v. Phillips, 66 N. C. R. 646 21 
 
 State v. Phillips, 70 N. C. R. 462 151 
 
 State v. Potter, Phil. L. R. 338 254 
 
 State v. Porter, 69 N. C. R. 140 293 
 
 State v. Powell, 70 N. C. R. 67 252 
 
 State v. Prince, 63 N. O. R. 529 256 
 
 State v. Pulley 63 N. C. R. 8 31 168 
 
 State v. Purdie, 67 N. C. R. 25 250 
 
 State v. Purdie, 67 N. C. R. 326 155 250 
 
 State v. Putney, Phil. L. R. 543 . 309 
 
 State v. Queen, 66 N. C. R. 615 415 
 
 State, Rand v 65 N. C. R. 194 67 
 
 State v. Ratts 63 N. C. R. 503 247 
 
 State v. Rawles, 65 N. C. R. 334 34 
 
 State v. Reinhart, 63 N. C. R. 547 337 
 
 State v. Reynolds, 64 N. C, R. 460 67 
 
 State v. Reynolds, 68 N. C. R. 264 68 
 
 State v. Rhodes, Phil. L. R. 453 32 
 
 State v. Robinson, 64 N. C. R. 698 221 
 
 State v. Rose, Phil. L. R. 406 166 
 
 State v. Roseman, 66 N. O. R. 634 172 
 
 State v. Roseman, 70 N. C. R. 34 421 
 
 State v. Roseman 70 N. O. R. 235 399 
 
 State v. Royster 65 N. C. R. 539 312 
 
 State v. Rucker, 68 N. C. R. 211 250 
 
 State v. Rushing, 69 N. C. R. 29 414 
 
 State v. Schlachter Phil. L. R. 520 238 
 
 State v. Scott 64 N. C. R. 586 310 393 
 
 State v. Sears, Phil. L. R. 146 83 253 
 
 State v. Shelton, '65 N. O. R. 294 16 171 
 
 State v. Shirley, 64 N. C. R. 610 237 
 
 State v. Shoaf, 68 N. C. R. 375 172 
 
 State v. Shuford, 69 N. C. R. 486 155 172 
 
 State v. Simmons 66 N. C. R. 622 426 
 
 State v. Simons, 68 N. C. R. 378 251 
 
 State v. Simons, 70 N, C. R. 336 252 
 
ttAMES OP OASES. LXV 
 
 NAMES OP PARTIE8. REPORTER. 
 
 State v. Sinclair, 69 N. C. R. 47. 
 
 State v. Sloan, 67 N. C. R. 357 , 
 
 State v. Sloan, 69 N. C. R. 128. . 
 
 State v. Sluder, 70 N. C. R. 55.. 
 
 State v. Smith, Phil. L. R. 302. . 
 
 State v. Smith, Phil. L. R. 340. . 
 
 State v. Smith, 63 K C. R. 234. , 
 
 State v. Smith, 65 N. C. R. 369 . . 
 
 State v. Smith, 66 N. C. R. 620 . 
 
 State v. Smith, 69 N. C. R. 352 . . 
 
 State v. Sowls, Phil. L. R. 151 . . 
 
 State v. Speight, '.... 69 N. C. R. 72. . 
 
 State v. Spencer, 64 N. C. R. 316. . 
 
 State v. Sprinkle, 65 K C. R. 463 . . 
 
 State v. Stafford, 70 N. C. R. 115 . 
 
 State v. Staton, 66 N. C. R. 640 . 
 
 State v. Starkey, 63 N. C. R. 7 . 
 
 State v. Swain, 65 N. C. R. 330 . . 
 
 State v. Tochanatah, 64 N. C. R. 614 . . 
 
 State v. Tapscott, 68 N. C. R. 300 . . 
 
 State v. Tate, 68 N. C. R. 546 . 
 
 State v. Tate, 70 K C. R. 161 . . 
 
 State ▼. Tatom, 69 N. C. R. 35 . . 
 
 State v. Taylor, Phil. L. R. 508 . . 
 
 State v. Taylor, 69 N. C. R. 543. , 
 
 State v. Thomas 64 N. C. R. 74 . . 
 
 State v. Tisdale, Phil. L. R. 220 . . 
 
 State v. Turner, 65 N. C. R. 592 . . 
 
 State v. Turner, 66 N. C. R. 618 . 
 
 State v. Underwood, 63 N. C. R. 98 . 
 
 State v. Underwood, 64 N. C. R. 599 . . 
 
 State v. University, 65 N. C. R. 714. . 
 
 State v. Vannoy, 65 N. C. R. 532. . 
 
 State v. Vinson, 63 N. C. R. 335. . 
 
 State v. Waldrop, 63 N. C. R. 507. . 
 
 State v. Walker 65 N. C. R. 461 . . 
 
 State v. Whitaker, 66 N. C. R. 630. . 
 
 State v. White, 68 N. C. R. 158. . 
 
 State v. Whitehurst, 70 N. C. R. 85 . . 
 
 State v. Whitfield, 70 N. C. R. 356 . . 
 
 State v. Williams, 65 N. C. R. 398 . . 
 
 State v. Williams, 65 N. C. R. 505 . 
 
 State v. Williams, 67 N. C. R. 12 . . 
 
 State v. Williams, 68 N. C. R. 60 . 
 
 State v. Willie, 63 N. C. R. 26. . 
 
 9 
 
 PAGE ( 
 
 )P DIGEST. 
 
 
 67 
 
 465 
 246 
 
 268 
 
 269 
 
 403 
 
 228 
 
 254 
 
 843 
 
 414 
 247 
 248 
 456 
 415 
 444 
 
 208 
 
 343 
 
 428 
 
 
 152 
 
 260 
 398 
 248 
 345 
 249 
 
 168 
 
 345 
 
 414 
 34 
 237 
 355 
 349 
 350 
 454 
 
 166 
 
 167 
 
 246 
 207 
 
 
 144 
 
 170 
 253 
 312 
 312 
 147 
 351 
 304 
 
 34 
 169 
 
 52 
 456 
 469 
 
 
 172 
 
 306 
 252 
 165 
 33 
 389 
 165 
 172 
 236 
 
LXVI NAMES OF OASES. 
 
 WAMES OP PARTIE8. REPORTER. 
 
 State v. Wilson, Phil. L. R. 237. . 
 
 State v. Wilson, 67 N. C. R. 456. . 
 
 State v. Wise, 66 N. C. R. 120. . 
 
 State v. Wise, 67 N. C. R. 281.. 
 
 State v. Wiseman, 63 N. C. R. 536. . 
 
 State t. Wiseman, 68 N. C. R. 203 . . 
 
 State v. Woodruff, 67 N. C. R. 89. . 
 
 State v. Worthington, 64 N. C. R. 594 . . 
 
 State v. Wright, Phil. L. R. 486. . 
 
 State v. Yarborough, 70 N. C. R. 250 . 
 
 State v. York, 70 N. C. R. 66. . 
 
 Staton, State v 66 N. C. R. 640. . 
 
 Stedman v. Jones, 65 N. C. R. 388. . 
 
 Steele, Lawrence v 66 N. C. R. 584. . 
 
 Steele v. Com'rs of Rutherford,. 70 N. C. R. 137. . 
 Stenhouse, Bank of Charlotte, . . 70 N. C. R. 703. . 
 Stenhouse v. Charlotte, C. & A. 
 
 R. R. Co., 70 N. C. R. 542.. 
 
 Stephenson v. Todd, 63 N. C. R. 368 . 
 
 Stephenson, Vaughn v 69 N. C. R. 212. . 
 
 Stevenson, Askew v Phil. L. R. 288. . 
 
 Stewart, Russell v 64 N. C. R. 487 . . 
 
 Stickney v. Cox, Phil. L. R. 495. . 
 
 Stilley v. Rice 67 N. C. R. 178. . 
 
 Stith v. Lookabill 68 N. C. R. 227. . 
 
 Stokely, Burke v 65 N. C. R. 569. . 
 
 Stokes, Heilig v 63 N. C. R. 612 . . 
 
 Stokes v. Howerton, 67 N. C. R. 50 . . 
 
 Stokes v. Cowles, 70 N. C. R. 124. . 
 
 Stokes v. Smith. 65 N. C. R. 352 . . 
 
 Stoltz, Pegram v 67 N. C. R. 144 
 
 Stone v. Latham 68 N. C. R. 421 . 
 
 Storkey, State v 63 N. C. R. 7. . 
 
 Stout, Southerland, v 68 N. C. R. 446. . 
 
 Stout v. Woody, 63 N. C. R. 37. . 
 
 Strayhorn, Hogan v 65 N. C. R. 279 . . 
 
 Street v. Bryan 65 N. C. R. 619 . . 
 
 Street v. Com'rs of Craven, 70 N. C. R. 644. . 
 
 Stroud v. Stroud, Phil. L. R. 525 . . 
 
 Sudderth, Harper v Phil. Eq. R. 279 . . 
 
 Sudderth, Greenlee v 65 N. C. R. 470 . . 
 
 Sudderth v. McCombs, 65 N. C. R. 186. . 
 
 Sudderth v. McCombs, 67 N. C. R. 353 . . 
 
 Sugg, Walton v Phil. L. R. 98 . . 
 
 Suit, Kingsbury v 66 N. C. R. 601.. 
 
 PAGE OP DIGEST. 
 
 
 32 
 
 254 
 250 
 248 
 258 
 10 
 
 
 24 
 
 259 
 
 53 
 
 170 
 
 163 
 
 209 
 426 
 249 
 
 17 
 
 45 
 
 416 
 
 
 173 
 
 395 
 373 
 273 
 
 9 
 37 
 
 297 
 
 
 36 
 
 404 
 101 
 17 
 188 
 175 
 
 
 286 
 
 287 
 
 
 86 
 
 264 
 
 341 
 
 81 
 
 444 
 
 150 
 
 390 
 
 454 
 431 
 
 108 
 
 345 
 
 414 
 
 488 
 
 
 19 
 
 26 
 
 478 
 
 17 
 
 389 
 
 445 
 
 
 116 
 
 466 
 489 
 315 
 
 
 78 
 
 178 
 222 
 
 
 13 
 
 22 
 
 41 
 
 112 
 
 211 
 55 
 
NAMES OF OASES. LXVII 
 
 NAMES OP PARTIES. REPORTER. PAGE OP DIOEOT. 
 
 Sullivan v.Lowe, 64 N. C. R. 500 69 
 
 Summers v. McKay, 64 N. C. R. 555 441 
 
 Summey, Swepson v 64 N. C. R. 293 100 
 
 Summey, Alexander v 66 N. C. R. 577 323 
 
 Sumner v. Miller, 64 N. C. R. 688 296 336 457 
 
 Sumner v. Shipman, 65 K C. R. 623 367 454 
 
 Surles v. Pipkin, 69 N. C. R. 513 8 
 
 Sumner v. Young, 65 N. C. R. 579 364 367 
 
 Sutton, Simpson v Phil. L. R. 112 184 
 
 Sutton v. Owen, 65 N. C. R. 123 60 220 
 
 Sutton v. Askew, 66 N. C. R. 172 491 
 
 Swain v. Smith, 65 N. C. R. 211 417 
 
 Swann, State v 65 N. C. R. 330 34 
 
 Swepson v. Harvey 63 N. C. R. 106 160 385 
 
 Swepson v. Summey, 64 N. C. R. 293 100 
 
 Swepson v. Rouse, 65 N. C. R. 34 45 381 477 
 
 Swepson v. Harvey, 66 N. O. R. 436 3C8 
 
 Swepson v. Harvey, 69 N. C. R. 387 369 
 
 Swicegood, Brinkley v 65 N. C. R. 626 102 457 
 
 Swindle v. Credle, 63 N. C. R. 305 5 
 
 Symons, Hutchinson v 67 N. C. R. 156 183 
 
 Ta-cha-na-tate, State v 64 N. C. R. 614 237 
 
 Tapaeott, Ireland v 68 N. C. R. 300 356 453 
 
 Tapscott, State v 68 N. C. R. 300 356 
 
 Tate, Exparte, 63 N. C. R. 308 85 
 
 Tatev. Powe, 64 N. C R. 644 296 331 
 
 Tate v. Morehead, 65 N. C. R. 681 39 
 
 Tate, Howerton v 66 N. C. R. 231 332 
 
 Tate, Howerton v 66 N. O. R. 431 405 
 
 Tate, Howerton v 68 N. C. R. 546 349 
 
 Tate, Howerton v 70 N. C. R. 161 
 
 Tate, Mott v 66 N. C. R. 214 333 
 
 Tatev. Smith, 70 N. C. R. 685 273 
 
 Tatom, Statev 69 N. C. R. 35 454 
 
 Tayloe v. Johnson, 63 N. C. R. 381 316 
 
 Taylor, State v Phil. L. R. 508 166 167 246 
 
 Taylor, Alexander v Phil. Eq. R. 36 40 
 
 Taylor v. Miller, Phil. Eq. R. 365 459 
 
 Taylor, Cobb v 64 N. C. R. 193 ™ 
 
 Taylor v. Galbraith, 65 K C. R. 409 82 
 
 Taylor v. Rhyne, 65 N. C. R. 530 232 
 
 Taylor v. Adams, 66 N. C. R. 338 357 
 
 Taylor, Webber v 66 N. C. R. 412 403 
 
 Taylor, Whitridge v 66 N. C. R. 273 46 
 
 Taylor v. Allen, 67 N. C. R. 346 465 
 
LXVIII NAMES OF CASES. 
 
 NAMES OF PASTIES. REPORTER. PAGE OP DIGEST. 
 
 Taylor, State v 69 N. C. R. 543 207 
 
 Taylor v. Dudley, 70 N. C. R. 146 156 
 
 Teague v. James, 63 N. C. R. 91 385 
 
 Teague v. Perry, 64 N. C. R. 39 219 
 
 Teague, Ogburn v 67 N. C. R. 355 . 390 443 
 
 Teague v. Downs, 69 N. C. R. 280 i 241 
 
 Terrell v. Walker, 65 N. C. R. 91 468 
 
 Terrell v. Walker, 66 N. C. R. 244 79 445 
 
 Terrellv. Terrell 69 K C. R. 56 123 
 
 Terry, McKeithan v 64 N. C. R. 25 , 232 
 
 Thigpen v. Price, Phil. Eq. R. 146 459 474 
 
 Thomas, Hoover v Phil. L. R. 184 143 
 
 Thomas, March v 63 N. C. R. 87 446 
 
 Thomas, March v 63 N. C. R. 249 65 
 
 Thomas v. Norris, 64 N. C. R. 780 330 
 
 Thomas, State v 64 N. C. R. 74 144 170 
 
 Thomas v. Womack, 64 N. C. R. 657 12 
 
 Thomas v. Com'rs of Carteret, . . 66 N. C. R. 522 333 
 
 Thomasson, Ballard v 65 N. C. R. 436 425 
 
 Thompson, Matthews v Phil. L. R. 15 146 
 
 Thompson v. McNair, Phil. Eq. R. 121 262 
 
 Thompson v . Berry, 64 N. C. R. 79 281 
 
 Thompson v. Berry, 64 N. C. R. 81 %82 
 
 Thompson v. McNair, 64 N. C. R. 448 265 
 
 Thompson, Rowland v 64 N. O. R. 714 18 296 
 
 Thompson, Battle v 65 N. C. R. 406 445 
 
 Thompson v. Berry, 65 N. O. R. 484 453 
 
 Thompson, Rowland v 65 N. C. R. 110 297 
 
 Thompson v. Badham, 70 N. C. R. 141 187 
 
 Thompson, Moore v 69 N. C. R. 120 379 
 
 Thompson, Nutt v 69 N. C. R. 548 421 
 
 Thompson v. Rogers, 69 N. O. R. 357 354 
 
 Thorburn, Hall v Phil. L. R. 158 12 
 
 Thome, State v 66 JSf. C. R. 664 249 
 
 Thornton v. Thornton 63 N. C. R. 211 119 459 
 
 Thorp, Norwood v 64 N. C. R. 682 71 
 
 Tiddy, Exchange Bank of Co- 
 lumbia, 67N.C. R. 469 343 
 
 Tiddy, Exchange Bank of Co- 
 lumbia, 67 N. C. R. 169 50 
 
 Tilly, Laxton v 66 N. C. R. 327 122 
 
 Tisdale, State v Phil. L. R. 220 253 
 
 Todd, Stephenson v 63 N. C. R. 368 37 
 
 Tadd v. Trott, 64 N. C. R 280 318 
 
 Toms v. Warson, 66 N. C. R. 417 38 
 
NAMES OF OASES. LXIX 
 
 NAMBS OF PARTIES. REPORTER. PAGE OP DIGEST. 
 
 Towev. Towe, 67 N. C. E. 298 375 397 
 
 Town of Edenton v. Wool, 65 N. C. E. 379 469 
 
 Trammel v. Ford Phil. Eq. E. 339 
 
 Trexler, State v 70 N. C. E. 235 399 
 
 Trezevant, Phillips v 67 N. C. E. 370 354 
 
 Trezevant, Phillips v 70 N. C. E. 176 114 
 
 Triplett v. Witherspoon, 70 N. C. E. 589 218 
 
 Trott, Todd v 64 N. C. E. 280 318 
 
 Trotter, Garrett v 65 N. C. E. 430 365 
 
 Tucker, Brooks v Phil. L. E. 309 134 
 
 Tull v. Pope 69 N. O. E. 183 344 
 
 Tapper, Perry v 70 N. C. E. 538 210 
 
 Turley v. Nowell Phil. Eq. E. 301 76 98 
 
 Turner v. N. C. E. E. Co 63 N. C. E. 522 406 
 
 Turner, Eedman v 65 N. C. E. 445 199 
 
 Turner, Lowe v 66 N. C. E. 413 307 
 
 Turner, Statev 66 N. C. B. 618 
 
 Turner.Statev 65 N. C. E. 592 312 
 
 Turner, Goldsborough v 67 N. C. E. 403 6 391 486 
 
 Turner, Brown v 70 N. C. E. 93 349 
 
 Turner v. Eichmond & Danville 
 
 E.E.Co., 70N.CE. 1 412 
 
 Turpin v. Herren, 66 N. C. E. 519 402 
 
 Tattle v. Puitt, 68 N. C. E. 543 130 318 
 
 Tweed, Dillenger v 66 N. O. E. 206 
 
 Twitty v. Camp, Phil. Eq. E. 61 128 
 
 Underwood, State v . . 63 N. C. E. 98 147 
 
 Underwood, State v 64 N. C, E. 599 351 
 
 University, Oliveira v Phil. Eq. E. 69 301 359 
 
 University E. E. Co. v. Holden, 63 N. C. E. 410 85 
 
 University, State ofN.C.v.... 65 N. C. E. 714 304 
 
 Utley v. Young, 68 N. C. E. 387 80 289 
 
 Utleyv. Foy 70 N. C. E. 25 60 372 
 
 Uzzle v. Com'rs of Franklin 70 N. C. E. 564 334 
 
 Valentine v. Holloman, 63 N. C. E. 475 45 54 386 
 
 Van Amringe, Blossom v Phil. Eq. E 133 27 213 2G2 
 
 Van Amringe, Blossom v 63 N. C. E. 65 27 
 
 Vann, Statev 65 N. C. E. 532 34 
 
 Vannoy, Franklin v 66 N. C. E. 145 16 
 
 Vaugh v. Eal. & Gas. E. E. Co., 63 N. C. B, 11 158 
 
 Vaughn v. Deloatch, 65 N. C. E. 378 191 
 
 Vaughn v. Stephenson, 69 N. C. E. 212 297 
 
 Vernon,Grielv 65 N. C. E. 76 286 
 
 Vernoy, Etheridge v 70 N. C. E. 713 5 
 
 Vestv. Cooper, 68 N. C. E. 131 420 
 
LXX NAMES OF OASES. 
 
 NAMES OF PARTIES. REPORTER. PAGE OF DIGEST. 
 
 Vincent, Shaw v 64 K C. R. 690 101 
 
 Vinson, State v 63 N. C. R. 335 169 
 
 Wacaser, Rhyne v 63 N. C. ft. 36 362 
 
 Wacaser, Chapman v 64 N. C. R. 532 60 
 
 Waddell v. Wood, 64 N. C. R. 624 284 
 
 Wade, Humphrey v 70 N. C. R. 280 304 
 
 Wade v. Sanders, 70JN. C. R. 270 146 218 450 
 
 Wade v. Sanders, 70 N. C. R. 277 137 
 
 Wadsworth v. Davis, 63 N. C. R. 251 385 
 
 Wagoner, Jones v 70 N. C. R. 322 235 
 
 Wagoner, Clarke v 70 N. C. R. 706 63 137 
 
 Waldrop v. Green, 63 N. C. R. 344 263 
 
 Waldrop, State v 63 N. C. R. 507 52 
 
 Walker v. Walker, Phil. L. R. 545 147 
 
 Walker, Bryan v 64 N. C. R. 141 408 
 
 Walker v. Terrell, 65 N. C. R. 91 468 
 
 Walker v. Moody, 65 N. C. R. 599 438 448 
 
 Walker, McKeithan v 66 N. C. R. 9a 183 
 
 Walker, State v 65 N. C. R. 461 456 
 
 Walker v Terrel,l 66 N. C. R. 244 79 445 
 
 Walker v. Sharpe, 68 N. C. R. 363 480 
 
 Walker v. Fleming, 70 N. C. R. 483 413 
 
 Walker v. Johnston, 70 N. C. R. 576 319 
 
 Walkup v. Houston, 65 N. C. R. 501 355 
 
 Wall, Covington v 65 N. C. R. 594 174 223 
 
 Wall v. Fairly, 66 N. C. R. 385 139 
 
 Wall v. Fairly, 70 N. C. R. 537 14 
 
 Wallace, Kerns v 64 N. C. R. 187 77 191 
 
 Wallace, McCombs v 66 N. C. R. 481 308 
 
 Waller v. Forsythe, Phil. Eq. R. 353 315 
 
 Walsh v. Hall, 66 N. C. R. 233 216 371 
 
 Walston v. Bryan, 64 N. C. R. 764 177 388 
 
 Walton v. McKesson, 64 N. C. R. 154 70 444 
 
 Walton v. McKesson, 64 N. C. R. 77 280 
 
 Walton, Scott v 67 1ST. C. R. 109 449 
 
 Walton v. Sugg, Phil. L. R. 98 41 112 211 
 
 Walton v. Jordan 65 N. C. R. 170 178 
 
 Want, Hall v Phil. L. R. 502 127 
 
 Ward v. Brandt, Phil. Eq. R. 71 474 
 
 Ward v. Hassell, 66 N. C. R. 389 68 
 
 Ward, Jarman v 67 N. C. R. 33 66 
 
 Ward v. Dortch, 69 N. C. R. 277 481 
 
 Warren v. Brown, 64 N. C. R. 381 54 
 
 Warren, Bland v 65 N, C. R. 372 161 
 
 Warren v. Woodward 70 N. C. R. 382 326 
 
NAMES OF CASES. 
 
 LXXI 
 
 NAMES OF PARTIES. REPORTER. 
 
 Wasson, Toms v 66 N. C. 3. 417 . 
 
 Washington B. Co., Carrow v. Phil. L. R. 118.. 
 
 Wasson, Wittouski v 69 N. C. R. 38. . 
 
 Watson, Harrell v 63 N. C. R. 454 . 
 
 Watson v. Shields, 67 N. C. R. 235 . . 
 
 Watson v. Dodd 68 N. C. R. 528. . 
 
 Watts v. Leggett, 66 N. 0. R. 197 . . 
 
 Waugh v. Blevins,. 68 N. C. R. 167. . 
 
 Weaver v. Parker, Phil. L. R. 479 . 
 
 Webb, Winston v Phil. Eq. R. 1 . 
 
 Webb v. Boyle, 63 N. C. R. 271 . . 
 
 Webb, Smith v 64 N. C. R. 541 . . 
 
 Webb v. Com'rs of Beaufort,. . . 70 N. C. R. 307 . . 
 
 Weber v. Taylor, 66 N. C. R. 412 . . 
 
 Weeks, King v 70 N. C. R. 372. . 
 
 Weith, Powell v 66 N. C. R. 423 . . 
 
 Weith, Winslow, 66 N. C. R. 432 . 
 
 Weith, Powell v 68 N. C. R. 342 . 
 
 Weith v. Wilmington, 68 N. C. R. 24 . . 
 
 Wells v. Sluder, 68 N. C. R. 156 . 
 
 Wells v. Sluder, 70 N. C. R. 55 . . 
 
 Wesson v. Johnson, 66 N. C. R. 186. . 
 
 Westv. Hall, 64 N. C. R. 43. . 
 
 West v. Shaw, 67 N. C. R. 483 . 
 
 Westbrooks, Fontaine v 65 K C. R. 528 . 
 
 Westscott v. Hewlett, 67 N. C. R. 191 . 
 
 Western N. C. R. R. Co., Alli- 
 son y 64 N. C. R. 382., 
 
 Western N. C. R. R. Co., v 
 
 Avery, 64 N. C. R. 491 . , 
 
 Western N. C. R. R. Co., Erwin 
 v 65 N. C. R. 79. 
 
 Western N. C. R. R. Co., Plott v 65 N. C. R. 74 
 
 Western N. C. R. R. Co., Leach v 65 N. C. R. 486 
 C R. R. Co., Mcln- 
 
 67 N. C. R. 278 
 
 R. R. Co., Carter 
 68 N. C. R. 346 
 
 Western R. R. Co., Wilmington v 66 N. C. R. 90 
 
 Whedbee v. Shannonhouse, Phil. Eq. R. 283 
 
 Wheeler, Hughes v 65 N. C. R. 418 . 
 
 Whitaker v. Bond, Phil. Eq. R. 227 
 
 Whitaker, Singletary v Phil. Eq. R. 77 
 
 Whitaker v. Bond, 63 N. C. R. 290 
 
 Whitaker, State v 66 N. C. R. 630 
 
 Western N 
 tire v 
 
 Western N. C 
 v 
 
 57 142 
 
 194 
 19 
 
 263 
 
 PA0E OF DIGEST. 
 38 
 
 457 
 110 
 439 
 288 
 178 
 233 
 486 
 160 
 322 
 489 
 107 
 334 
 403 
 481 
 289 
 300 
 289 
 470 
 18 
 228 
 377 
 60 
 62 
 279 
 (See errata.) 
 
 287 
 
 57 160 
 
 89 
 
 327 
 
 281 
 
 99 218 
 
 410 
 
 103 
 411 
 372 
 
 412 
 
 373 
 175 
 141 
 362 
 328 
 437 
 263 
 469 
 
LXXII NAMES OF OASES. 
 
 NAMES OP PARTIES. REPORTER. 
 
 Whitaker v. Forbes, 68 N. C. R 228. . . . . 
 
 White v. Hunt, .■ . . . 64 N. C. R. 496 
 
 White v. Robinson, 64 N. C. R. 698 
 
 White, Dewey v 65 K C. R. 225 
 
 White, Hudgins v 65 N. C. R. 393 
 
 White, CoUghlan v 66 N. C. R. 102 
 
 White, Morrison v 67 N. C. R. 253 
 
 White, McDowell v 68 N. C. R. 65 
 
 White, State v 68 N. C. R. 158 
 
 White, Winborne v 69 N. C. R. 253 
 
 Whitehead v. Whitehead, 64 N. C. R. 538 
 
 Whitehead, Hirsh v 65 N. C. R. 516 
 
 Whitehead, Morris v 65 N. C. R. 637 
 
 Whitehead, Atkinson v 66 N. C. R. 293 
 
 Whitehurst, Carney v 64 N. C. R. 265 
 
 Whitehead, Pope v 68 N. C. R. 191 
 
 Whitehurst, Hinton v 68 N. C. R. 316 
 
 Whitehurst v. Gaskill, 69 N. C. R. 449 
 
 Whitehurst v. Green, 69 N. C R. 131 
 
 Whitehurst v. Latham, 69 N. C. R. 33 
 
 Whitehurst, State v 70 N. C. R. 85 
 
 Whitesides v. Green, 64 N. C. R. 307 
 
 Whitesides v. Williams, 66 N. C. R. 141 
 
 Whitfield, Isler v Phil. L. R. 493 
 
 Whitfield v. Bodenhammer, .... Phil. L. R. 362 
 
 Whitfield, State v 70 N. C. R. 356 
 
 Whitford v. Foy, 65 N. C. R. 265 
 
 Whitridge v. Taylor, 66 N. C. R. 273 
 
 Whitsell v. Mebane 64 N. C. R. 345 
 
 Whitted v. Nash, 66 N. C. R. 590 
 
 Whittemore, Hoyle v 67 N. C. R. 252 
 
 Wilbourne, Martin v 66 N. C. R. 321 
 
 Wilcox, Pollock v 68 N. C. R. 46 
 
 Wilcoxon v. Calloway, 67 N. C. R. 4G3 , 
 
 Wilder v. Lee, 64 N. C. R. 50 
 
 Wiley v. Wiley, Phil. L. R. 131 
 
 Wiley v. Worth, Phil. L. R. 171 
 
 Wiley v. Wiley, 63 N. C R. 182 
 
 Wiley, Burbank v 66 N. C. R. 58 
 
 Wilhelm, Parish v 63 N. C.|R. 50 
 
 Wilkes, Burton v 66 N. C. R. 604 
 
 Wilkie, Scott v 65 N. C. R. 376 
 
 Wilkins v. Fineh, Phil. Eq. R. 355 
 
 Wilkins, Lewis v Phil. Eq. R. 303. '. . . . 
 
 Willard, Blackwell v 65 N. C. R. 555 
 
 PAGE OP DIGEST. 
 
 
 364 
 
 
 36 
 
 
 221 
 
 
 451 
 
 
 286 
 
 
 180 
 
 140 241 
 
 423 
 
 
 132 
 
 172 
 
 306 
 
 
 227 
 
 
 240 
 
 66 
 
 266 
 
 94 
 
 291 
 
 
 224 
 
 
 490 
 
 130 
 
 467 
 
 201 
 
 205 
 
 
 465 
 
 
 268 
 
 91 
 
 387 
 
 
 252 
 
 148 
 
 388 
 
 22 
 
 439 
 
 
 127 
 
 
 472 
 
 
 165 
 
 
 222 
 
 
 46 
 
 
 121 
 
 199 
 
 389 
 
 
 130 
 
 
 479 
 
 
 157 
 
 
 486 
 
 
 265 
 
 
 189 
 
 
 348 
 
 
 190 
 
 378 
 
 403 
 
 375 
 
 473 
 
 61 371 
 
 396 
 
 
 45 
 
 
 196 
 
 98 
 
 425 
 
 
 110 
 
NAMES OF OASES. 
 
 LXXIII 
 
 NAMES OF PARTIES. 
 
 Willard v. Satcliwell, 
 
 Willey v. Gatling, 
 
 Williams, Burbank v 
 
 Williams v. Moore, 
 
 Y/illiarns, Atkinson v 
 
 Williams, March v 
 
 Williams, Calvert v 
 
 Williams v. Bock well, 
 
 Williams v. Council, 
 
 Williams v. Dixon, 
 
 Williams, Hardie v 
 
 Williams v. Smith 
 
 Williams, State v 
 
 Williams, Biggs v 
 
 Williams, State v 
 
 Williams, Mason v 
 
 Williams, Whiteside v 
 
 Williams v. Monroe, 
 
 Williams v. Monroe, 
 
 Williams, State v 
 
 Williams, State v 
 
 Williams v. Green, 
 
 Williams v. Williams, 
 
 Williams v. Alexander, 
 
 Williams v. Sharpe, 
 
 Williams, Clarke v 
 
 Williamston & T. R. R. Co., 
 Battle v. 
 
 Willis, State v 
 
 Willis, Council v 
 
 Willougkby, Robinson v 
 
 Willoughby, Robinson v 
 
 Willougkby, Robinson v 
 
 Wilmington City v. Davis, 
 
 Wilmington & Weldon R. R. 
 Co. , Nash v 
 
 Wilmington, Charlotte & Ruth- 
 erford R. R. Co. v. Western 
 R. R.Co., 
 
 Wilmington & Weldon R. R. 
 Co., Reid v 
 
 Wilmington & Weldon R. R. 
 Co., King v 
 
 Wilmington & Weldon R. R. 
 Co., Battle v 
 
 REPORTER. 
 
 PAGE OF DIGEST. 
 
 70 N. C. R. 268 . 
 
 
 454 
 
 70 N. C. R. 410. 
 
 
 400 
 
 Phil. L. R. 37. 
 
 
 82 
 
 Phil. Eq.R. 211. 
 
 
 353 
 
 63 N. C. R. 592. 
 
 
 429 
 
 63 N. C.R. 371. 
 
 37 348 
 
 386 
 
 61 N. C. R. 16S. 
 
 
 219 
 
 64 N. C. R. 325 . 
 
 
 285 
 
 65 N. C. R. 10. 
 
 
 401 
 
 65 N. C. R. 416., 
 
 
 473 
 
 65 N. C. R. 56. 
 
 
 191 
 
 05 N. C. R. 87 
 
 
 482 
 
 65 N. C. R. 398 . 
 
 
 33 
 
 66 N. C. R. 427., 
 
 13 272 
 
 360 
 
 65 N. C. R. 505. 
 
 
 389 
 
 06 N. C. R. 564. 
 
 > • • • * 
 
 144 
 
 66 N. C. R. 141 
 
 22 
 
 433 
 
 67 N. R. C. 133. 
 
 58 
 
 443 
 
 67 N. C. R. 164 
 
 
 479 
 
 67 K C.R. 12. 
 
 
 165 
 
 68 N. C.R. 00. 
 
 
 172 
 
 68 N. C. R. 183. 
 
 
 242 
 
 70 N. C. R. 189. 
 
 
 327 
 
 70 N. C. R.665. 
 
 
 290 
 
 70 N. C. R. 582. 
 
 
 14 
 
 70 N. C. R. 679., 
 
 14 
 
 462 
 
 66 N. C. R. 540.. 
 
 267 
 
 325 
 
 63 N. C.R. 26. 
 
 • • m • • * 
 
 236 
 
 66 N. C. R. 359. 
 
 
 287 
 
 65 N. C. R. 520. 
 
 
 339 
 
 67 N. C.R. 84. 
 
 
 13 
 
 70 N. C. R. 358 . 
 
 
 311 
 
 63 N. C. R. 582 . 
 
 
 455 
 
 67 N. C. R. 413 , 
 
 
 63 
 
 66 N. C. R. 90 
 
 
 175 
 
 64 N. C. R. 266 , 
 
 
 87 
 
 66 N. C R. 277., 
 
 80 
 
 89 
 
 66 N. C. R. 843. 
 
 
 111 
 
 10 
 
LXXIV NAMES OF OASES. 
 
 NAMES OF PAKTIES. REPORTER. PAGE OP DIGEST. 
 
 Wilmington & Weldon R. E. 
 
 Co., Powell v 68 N. C. R. 395 397 
 
 Wilmington & Weldon R. R. 
 
 Co., Murphy v 70 N. C. R. 437 4 
 
 Wilson, State v Phil. L. R. 237 32 254 
 
 Wilson v. Franklin, 63 N. C. R. 259 405 
 
 Wilson v. Barnhill, 64 K C. R. 121 30 
 
 Wilson v. Holly, 66 N. C. R. 408 107 154 394 
 
 Wilson, Simmons v 66 N. C. R. 336 464 
 
 Wilson.Statev 67 N. C. R. 456 250 
 
 Wilson v. Peterson, 69 N. C. R. 113 447 
 
 Wilson v. Derr, 69 N. C. R. 137 158 162 
 
 Wilson v. Abrams, 70 N. C. R. 324 298 422 
 
 Wilson v. Arents 70 N. C. R. 670 239 
 
 Wilson, Jarrett v 70 N. C. R. 401 118 
 
 Wilson, Jarrett v 70 N. C. R. 403 118 
 
 Winants, King v 68 N. C. R. 63 364 
 
 Winborne v. White 69 & C. R. 253 227 
 
 Windley, Blount v 68 N. C. R. 1 50 468 
 
 Winslow v. Fenner, Phil. L. R. 565 35 
 
 Winslow, Johnson v 63 N. C. R. 552 86 326 
 
 Winslow v. Com'rs of Perqui- 
 mans, 64 N. C. R. 218 342 
 
 Winslow, Johnson v 64 N. C. R. 27 (see errata.) 
 
 Winslow v. Weith 66 N. C. R. 432 300 
 
 Winslow v. Wood, 70 N. C. R. 430 58 
 
 Winstead v. Bowman, 68 N. C. R 170 495 
 
 Winstead v. Stanfleld, 68 N. C. R. 40 225 
 
 Winston v. Webb, Phil. Eq. R. 1 322 
 
 Winston v. Dalby 64 N. C. R. 299 117 
 
 Wise, State v 66 N. C. R. 120 248 
 
 Wise, State v 67 N. C. R. 281 258 
 
 Wiseman, State v 63 N. C. R. 536 10 
 
 Wiseman, State v 68 N. C. R. 203 24 259 
 
 Witherington v. Phillips, 70 N. C, R. 444 357 
 
 Withers v. Sparrow, 66 N. C. R. 129 240 
 
 Witherspoon, Triplett v 70 N. C. R. 589 218 
 
 Wittkowski, Alexander v 64 N. C. R. 634 442 
 
 Wittkowski, Beckham v 64 N. C. R. 464 144 189 
 
 Wittkowski v. Wasson, 69 N. C. R. 38 110 
 
 Womack v. Eacher, Phil. Eq. R. 161 213 
 
 Womack, Thomas v 64 N. C. R. 657 12 
 
 Womble v. George, 64 N. C. R. 759 198 
 
 Wood v. Sawyer, Phil. L. R. 251 19 173 493 
 
 Wood v. Wood, Phil. L. R. 538 92 133 270 
 
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