BARRINGER v. BARRINGER.

will certainly afford much greater opportunities for collusion between the parties, then when the competency of the woman, who was alleged to be impotent by reason of malformation had to be "tried by the careful inspection of grave and honest matrons of her parish, who attested on oath, if the woman was found to be impotent, that she could never be a mother or proper wife."

The Courts were very cautious in guarding against collusion between the parties, and it seems that in a suit of nullity by reason of the man's impotency, the report of medical men who had inspected the man, was not alone sufficient evidence of his impotency, but the Court always required a certificate of medical persons as to the state and condition of the woman, and if she was found virgo intacto, yet apta viro, after three years, cohabitation, which the law required, (except in such cases as malformation) before a suit could be entertained for annulling a marriage by reason of impotence, it afforded the strongest reasons to presume the impotency of the man. Shelford on Marriage and Divorce, 33 Law Lib., 202.

As we have learned that there is a diversity of opinion in the profession as to the proper jurisdiction of proceedings for divorce, we have examined the legislation on the subject, and our conclusion is, that prior to the first day of July, 1872, such proceedings should have been instituted before the Superior Court Clerk, but since that date, by virtue of the Act 1871-'72, chap. 193, the Superior Courts in term time alone have jurisdiction of proceedings for divorce.

There is a marked difference between proceedings for divorce and other special proceedings, and a very substantial reason why they should be originally brought to the Superior Court in term time.

It does not necessarily follow in other special proceedings that any issues will arise which must be sent to the Court to be tried in term time, for as a general rule, the clerk can

TULL v. POPE.

give all proper relief; but the issues in proceedings for divorce must necessarily go to the Court to be tried in term time; then why institute a proceeding before the clerk when it is known in advance that it must be transferred? We think the change a wise one.

This proceeding instituted on the 13th of November, 1871, was properly commenced before the clerk. The plaintiff was a competent witness to prove the impotence of his wife, and his Honor having reserved the point of law, erred in setting aside the verdict of the jury.

The case will be remanded in order that the Superior Court may proceed to judgment upon the verdict.

PER CURIAM.

Judgment reversed.

JOHN TULL v. WM. J. POPE.

Entries in a book showing a state of facts not materially different from those appearing on a trial, will not entitle to one of the parties to have the judg ment set aside and a new trial, although the existence of such entries was unknown at the trial and was subsequently discovered.

(James v. Saunders, 64 N. C. Rep. 367; Bledsoe v. Nixon, at this term, cited and approved.)

CIVIL ACTION, tried before Clarke, J., at Fall Term, 1873, of the Superior Court of LENOIR county.

In his complaint the plaintiff alleged that John C. Washington, of Lenoir county, on the 31st of January, 1861, executed to him a note for $512.80 with interest, which note, he, the plaintiff, indorsed to one Stephen White, now deceased, with the understanding and agreement on the part of both White and Washington that the plaintiff was not to be called on for the payment of the same, the indorsement being merely for the purpose of vesting title in the

TULL V. POPE.

note to White, and that White was to look alone to Washington for its payment; that the note was passed to White in payment of plaintiff's store account, he, White, stating that it was the same as cash to him, as he himself owed Washington, and receiving the note with this understanding, gave the plaintiff credit for the amount of the note on his books; that this credit was given 6th March, 1864, as appears from White's books, and the note and interest, towit: $638.94, charged to Washington's account; that the entries on the books of White, was made by one Coleman, who after the death of White, was employed by his administrator to post his intestate's books.

Plaintiff further alleged that Stephen White was dead, and that Wm. White administered on his estate; that in 1871, the administrator dying, one Harper was appointed administrator de bonis non of Stephen White's estate, and that he, acting under an order of the Probate Court, sold the said note at auction, when the defendant purchased it for less than $100.

That the defendant sued on the note, and at Spring Term, 1872, obtained judgment on the same, and intends issuing execution thereon; that on the trial, the plaintiff, in that action the defendant, was precluded from proving the facts, understanding and agreement between himself, White and Washington, in consequence of the death of White; that since the trial, he, the plaintiff, has had an examination of the books of White, and finds the entries before stated, and is now prepared to prove the agreement with White, and that he ought not to be held responsible for the payment of said note on account of his indorsement.

Plaintiff demanded judgment that defendant be restrained from collecting the judgment, &c.

A temporary order being issued by Judge CLARKE, restraining the defendant, from proceeding to collect the judgment he had obtained against the plaintiff at Spring Term,

TULL V. POPE.

1872, the defendant appeared and answered, and stated that on the trial of his action against the plaintiff it was in evidence that when the note sued on was the property of Stephen White, the maker, Washington, held large claims against White, and the question being, had there ever been any settlement between White and Washington of their respective claims, White also having other unadjusted claims against Washington, he, Washington, swore that there had been an executory agreement that their several claims should be settled and allowed, but that he could not say there had ever been any actual settlement; that if there had been such settlement the books of White would show it; that the entries on White's books were made by Coleman since the death of White; that at the time of the trial the books were in town, and also the administrator, the latter being in the Court-house, and could have easily been made evidence.

It appears from the case agreed, in addition to the facts stated in the complaint and answer, that on the first trial the plaintiff here was ignorant of the existence of the books of White containing the entries before set out, and that those entries were taken by Coleman from a memorandum book kept by White himself, which book had been accidentally found after the death of White.

Upon the foregoing facts his Honor ordered the judgment obtained at Spring Term, 1872, by defendant against the plaintiff to be set aside and a new trial granted. From this judgment defendant appealed.

Smith & Strong and Batchelor, Edwards & Batchelor, for appellants:

1. The plaintiff has misconceived his remedy, if remedy he has. When the distinction between actions at law and suits in equity prevailed, it may be conceded that the plain

TULL v. POPE.

tiff's remedy was by bill, and in the meantime to enjoin the collection of the judgment. But now the remedy is by motion in the cause in the form of a petition supported by affidavits. Mason v. Miles, 63 N. C. Rep.; Jarman v. Saunders, 64 N. C. Rep. 367; Gee v. Hines, Phill. Eq. 315; Rogers v. Holt, Ibid. 108.

But if we are mistaken:

2. The assignment of the bond by Tull to White was in blank. Tull now proposes to prove that at the time of his assignment in blank to White, it was agreed that he was not to be liable for the debt, as the purpose of the assignment was only to pay Tull's debt to White, and give White a cause of action or right of set off against Washington. Is parol evidence admissible to show this? We think not. See Smith on Con., 28. Reynolds v. Magniss, 2 Ired. 30 Admitting it to be competent as between Tull and White, still it cannot be as between the assignee for value and without notice, being a negotiable instrument.

3. But again, it is said the debt was extinguished before the bond became by purchase into the hands of Pope; and that Tull can show this by White's books. White's books show simply that Tull's store account with him was paid by the transfer of this bond. But White's books not only do not show that Washington has paid this bond, but they show that Washington was debited with this bond in his account, and the bond is found in White's possession by his administrator after his death, which is almost conclusive evidence that Washington never satisfied this bond debt to White.

4. A Court of Equity will not set aside a judgment at law except for fraud, circumvention or perjury practiced upon the trial. Wilson v. Leigh, 4 Ired. Eq. 100. Nor ought this power of a Court of Equity to set aside a judgment at law be exercised in any case when the party applying has been guilty of any laches. Dyche v. Patton, 8 Ired. Eq. 296, and in Houston v. Smith, 6 Ired. Eq. 268, it is said "only for new