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Digest of all the reported cases, both in law and equity: determined in the courts of North Carolina from the earliest period to the present year, together with a table of the names of the cases
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-' I I 1 >< li ) '<? !U'H |||ffl fiBttBf €t)e Liferarp of t|>e Ontoersitp of Jftortl) Carolina Collection of &ott§ Caroliniana <SntiotoeD bp Soljn ^ptunt WI of t|>e €Ia0Si of 1889 C3-45.5" 1333s II Hill—!—Til—- -TTTWTTI v, A UNIVERSITY OF N.C. AT CHAPEL HILL 00033977260 This book must not 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. 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 g3 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, 3g8 14. Of the trial and its incidents, 389 15. Submitting questions of fact to the jury, . 390 16. Judge's charge, 392 17. Motion in arrest of judgment _ 4(jq 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 459 TAXES AND TAXATION 463 TENANTS IN COMMON, 466 TENDER AND REFUSAL 467 TOWNS AND CITIES 4 69 TOWNSHIPS, 4? 1 TOWNSHIP TRUSTEES, 472 TRESPASS , 472 TROVER, 473 TRUSTS AND TRUSTEES 474 USURY 482 VAGRANCY 483 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. Tern1 )]), 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. Ibid. 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 Forsy 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 my 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 forma 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 offact: 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: There/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 pavol 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. Swannr 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. Vannoyr 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 ofA 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 2mrl)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 offact 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 suretjr , 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 th
Object Description
|Digest of all the reported cases, both in law and equity: determined in the courts of North Carolina from the earliest period to the present year, together with a table of the names of the cases
|Other Title
|Battle's digest.
|Battle, William H. (William Horn), 1802-1879.
Banks and banking
Cherokee Indians
Law--North Carolina
Law reports, digests, etc.--North Carolina
Money--Confederate States of America
|North Carolina, United States
|Time Period
(1860-1876) Civil War and Reconstruction
|Spine title: Battle's digest; Volume 4. Includes bibliographical references and index.
|Raleigh, N.C. :Nichols, Gorman & Neathery, printers,1866.
|North Carolina Supreme Court, Judicial Department
|State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754
|Physical Characteristics
|3 v. ;24 cm.
|Health Sciences Library. University of North Carolina at Chapel Hill
Judicial records
|Digital Characteristics-A
|39530 KB; 610 p.
|Digital Collection
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project
North Carolina Digital State Documents Collection
|Digital Format
|Pres File Name-M
|Pres Local File Path-M
|Full Text
1 >< li ) ' !U'H
€t)e Liferarp
of t|>e
Ontoersitp of Jftortl) Carolina
Collection of &ott§ Caroliniana