STATE v. WINCROFT. dictment contained two counts; the first for breaking, &c., the house of Joseph G. Baxley with intent to steal his goods; the second for breaking, &c., into the house of said Baxley with intent to steal, and with actually stealing a bed-quilt and certain other articles therein, the property of said Joseph. The jury found a general verdict of guilty. The prisoner moved for a new trial. We have considered with the care due to the importance of the case to the prisoner, every ground assigned by his counsel, either for a new trial or in arrest of judgment. We concur with the Judge below in his opinion on all of them. Most of the points taken for the prisoner are so obviously untenable, that they were not pressed in this Court, and we consider any full discussion of them useless. The grounds assigned for a new trial are briefly these: 1. That a juror on the original panel was not a freeholder. The statute does not make that qualification requisite for the original panel. It speaks only of tales jurors 2. A juror was challenged because he had not paid his taxes. He swore that he believed he had, and the Judge overruled the challenge. The decision of the Judge upon the fact, was final and cannot be reviewed here. The prisoner then moved in arrest of judgment, and assigned for cause: a 1. That Baxley had a wife, and that the property in the house entered, was in him and her jointly or in common, by reason of her rights to dower and homestead therein and should have been so charged. If there was anything in this at all, it would properly be ground for a new trial, for a variance and failure of proof. But a wife has no estate in her husband's land during his life. Her interest is a mere right which may never vest. The wife of Baxley had no property in the house and it was properly described as his. 2. The quilt which was the only article proved to have been stolen from the dwelling, was the separate property of STATE v. WINCROFT. the wife, having been owned by her at her marriage. There was no evidence that any goods, the property of the husband, had been stolen by the defendant. There was therefore a variance between the allegation and the proof, which entitled the defendant to an acquittal. If there was an error in this respect, it was ground for a new trial, and not properly for an arrest of judgment. We think there was no variance, and that the property was well laid in the hus band. As the marriage was after 1868, the quilt was the separate property of the wife. On an indictment for burglary with the intent to steal the goods of Joseph G. Baxley, the intent must be proved as laid. 6 Chit. Cr. L., 948; 1 Ibid. 213; Whart. Am. Cr. L., § 818. But it is also settled, that goods in the possession of a bailee, may be laid as his property. Wharton Am. Cr. L., § 1824; 21 Maine, 586; 22 Ibid, 171; R. & R. 136; 4 C. & P., 391; 8 Texas, 115; 1 Leach, 356. And it is said, if stolen goods are stolen from a thief, the goods may be alleged to belong either to the true owner or to the first thief. Wharton, § 1825; Ward v. The People, 3 Hill, 396. Notwithstanding the wife has a separate general property in her goods, yet while husband and wife live together, he must be deemed to have a special property as bailee, at least in such goods as are in the house and in common use by them. They are in his possession and control against all the world but his wife, and he might separately maintain an action against a trespasser. Her consent to his receiving the income and profits of her separate property, and of course to its use, is presumed until such consent be revoked. Bat. Rev. ch. 69, § 29. Baker v. Jordan, 73 N. C. 145. He is the person primarily to defend and protect the possession, and larceny is a violation of the possession. Without this special property, under the circumstances supposed, the husband cannot exercise his acknowledged rights or discharge his duties. STATE v. MATTHEWS. 3. For a variance between the day of committing the offence alleged in the bill, and that proved. It is familiar learning that this variance is immaterial. 4. That the Clerk recorded the verdict not in the words of the jury, but in the form given in a form book. While the verdict must be recorded substantially as given, it is the duty of the Judge to see it put in proper form. In this case the verdict as recorded was read to the jury and assented to as their verdict. No error. PER CURIAM. Judgment affirmed. STATE v. JAMES MATTHEWS. Indictment--Burglary--Wife's Separate Property. While a husband and wife live together, the husband has a special property as bailee in the wife's separate personal property which is in common use by them; Therefore, in an indictment for burglary, where certain goods alleged to have been stolen, were the separate property of A's wife, and were charged in the indictment as the property of A ; Held not to be error. (State v. Wincroft, ante, cited and approved.) INDICTMENT for Burglary, tried at Spring Term, 1876, of ROBESON Superior Court, before McKoy, J. The bill of indictment charged the defendant and Andy Wincroft with breaking and entering into the dwelling house of Joseph G. Baxley, with intent to commit a felony. The defendants were tried separately, and the facts in this case are substantially the same as in the preceding case. STATE MATTHEWS. Under the charge of the Court below, the jury rendered a verdict of guilty. Judgment. Appeal by defendant. Attorney General, for the State. Mr. W. McL. McKay, for the defendant. RODMAN, J. The prisoner after conviction moved for a new trial for the following reasons: 1. That the indictment charged the felony to have been committed on 1 January, 1875, when the evidence showed it to have been committed on 4 December, 1875. It is familiar learning that this variance is immaterial. 2. That the indictment charged that the house was the property of J. G. Baxley, and that the bed-quilt and one pair of pants and one shirt were of the goods and chattels of said Joseph G. Baxley, when the evidence was that the bedquilt and shirt were the property of his wife, and were her's before her marriage in 1875. As the evidence is not set out, it is impossible to say whether it proved the articles to have belonged to the husband or to the wife. And if the pants were proved to have been stolen, and they were the property of the husband, it would sustain the indictment. If all the articles had been the separate property of the wife, inasmuch as the husband and wife were living together in the house, and in the common use of the articles, they were properly alleged to be the property of the husband. State v. Wincroft, at this term. These exceptions are clearly untenable. The exception taken to the instructions of the Judge is too general and does not specify any error. The Judge gave substantially the instructions prayed for. We see no positive error in those which he gave, although they appear to us meagre, and not likely to have been of much service to the jury. We would probably do an injustice to the Judge, if we as BEAMAN v. SIMMONS. sumed that what is sent up to us, is a full report of his charge. We have carefully examined the record and see no error in it. Upon the cancellation of an executory contract concerning the sale of land, the law implies a promise on the part of the bargainor, to repay such amounts as may have been paid to him as part of the purchase money. (McMillan v. Edwards, 75 N. C. 81; Triplett v. Witherspoon, 74 N. C. 475, cited and approved.) ACTION for money had and received, tried in a Justice's Court of WAYNE County, where judgment was given for plaintiff for $113.35. The defendant appealed to the Supe-rior Court of said County, and the case was tried at Fall Term, 1876, before Seymour, J. After the witnesses for plaintiff were examined-the substance of whose testimony is stated in the opinion of this Court-His Honor intimated an opinion, that plaintiff according to his own showing, was not entitled to recover.. Whereupon plaintiff submitted to judgment of nonsuit and appealed. Mr. H. R. Kornegay, for plaintiff. |