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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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)
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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