ISLER T. MURPHY.

and respectful manner, he should ask for what he wants. And the statutes quoted above expressly require that he shall set forth in his petition, if the proceeding be exparte, or in his complaint, if it be adverse, "the facts entitling him to relief, and the nature of the relief demanded."

It is evident, therefore, that we have no complaint; nor any thing that will answer in the place of one.

But the defendant comes in and answers, and denies that the plaintiff's claims are just and owing, and the plaintiff replies that they are just and owing. And then the plaintiff insists that his replication is a complaint. Both the profession and the courts have been indulgent, probably too indulgent, in allowing departures from plain forms; but to allow this would be a burlesque upon practice and pleading.

The court was indulgent to the plaintiff in this case. simply ordered the case to be remanded to the Probate Court that a complaint might be put in. But the plaintiff refused, and appealed.

It may be proper to say further, that in a proceeding such as this is, to call an administrator or executor to an account, the leading creditor, as the plaintiff in this case is, must issue his summons and file his complaint; that properly constitutes the case in court. And then, under ch. 45, § 79, Bat. Rev. any other creditor may come in and file his claim, and need not file a formal complaint, unless the defendant deny the claim; and then such creditor must file a complaint. But even such creditor must, when he files his claim, swear to it, unless it be a judgment or some writing signed by the deceased.

The point decided is, that a special proceeding by a creditor against an administrator or an executor for an accountmust be by summons and complaint in the first instance and

STATE v. EPPS.

that other creditors coming in, need not file complaints unless their claims are denied and then they must.

There is no error.

PER CURIAM.

Judgment affirmed.

STATE v. ROBERT EPPS.

Criminal Trials -- Presence of Prisoner.

In criminal trials nothing shall be done to the prejudice of the defendant without his presence; though the rule may be relaxed in trials for misdemeanors, by the consent of the defendant.

INDICTMENT for larceny, tried at Fall Term, 1876, of EDGECOMBE Superior Court, before Moore, J.

The jury, under the instructions of the Court, rendered a verdict of guilty, which was received by the Clerk during the recess of the Court, in the absence of the prisoner and without any instructions from the Court; whereupon the counsel for the prisoner moved in arrest of judgment, which motion was allowed by the Court, and the Solicitor for the State appealed.

Attorney General, for the State.

No counsel for defendant, in this Court.

READE, J. The rule is, that in a criminal trial, nothing shall be done to the prejudice of the defendant, without his presence.

The exception is, that in a criminal trial for a misdemeanor, the rule may be relaxed, by the consent of the defendant.

STATE v. EPPS.

An instance of such exception has been, where the Court takes a recess, the jury may render its verdict to the Clerk, it having been agreed before the recess by the defendant in the presence of the Court, that so it might be and the Court having so instructed the Clerk.

But even this exception, or the like, ought to be sparingly exercised; because it best comports with decency and order, that everything should be done in open Court, in the presence of the defendant and before the public.

In the case before us, the verdict was rendered to the Clerk during the recess of the Court, without instruction from the Court, and in the absence of the defendant and without his consent.

It was clearly the right ot the defendant to have the verdict set aside upon his motion. And it was within the power of the Court to set it aside mero motu.

There is no error. Let this be certified, &c.

PER CURIAM.

Judgment affirmed.

MCALLISTER v. DEVANE.

FLORA MCALLISTER v. THOMAS W. DEVANE.

Ejectment -- Lappage -- Practice.

1. In a case of lappage, where the party having the junior grant is not in the actual possession of the locus in quo, it is not error for the Judge to withdraw the case from the jury and decide it himself.

2. But if the claimant under the senior grant is driven to show actual possession, an issue of fact is raised which must be submitted to the jury.

3. Where one in possession under a claim of title accepts a release of the right of another having an adverse claim, he does not come into possession under the release, and it works no estoppel.

4. The only effect of a conveyance to A of easements to which his land is servient is to extinguish the dominant rights.

CIVIL ACTION for recovery of land, tried at January Term, 1876, of CUMBERLAND Superior Court, before Buxton, J.

Plaintiff claimed title and possession of three tracts of land situated on Lock's Creek, Cumberland county, containing 200, 33 and 50 acres respectively. Defendant disclaimed as to all outside of certain lines, within which were included, as plaintiff claimed, parts of each of the said three tracts. Defendant denied plaintiff's right as to residue. Plaintiff read in evidence grants to Alexander McAllister for the said three tracts as follows: a grant for the 200 acre tract dated September 29, 1753; the location of this was disputed, but the jury located it as plaintiff claimed, and that is not the subject of the decision: a grant for the 33 acre tract dated March 2, 1775, date of survey March 11, 1774; the location of this was also disputed, but on the trial the Court assumed it to be located as plaintiff insisted: a grant for the 50 acre tract about the location of which there was no dispute.

MCALLISTER v. DEVANE.

Plaintiff claimed that these grants covered the premises in controversy, which was a mill-pond and a few adjacent acres of land.

Plaintiff read in evidence the will of Alexander McAllister, who died in 1796. He devised to his son Hector the said three tracts and also one-half the saw-mill on Lock's Creek. Plaintiff read in evidence the will of Hector McAllister, who died in 1810. He devised to his wife Isabel the 200 acre tract that I live on:" the 50 acre tract and the 33 acre tract except the mill seat and as much as it overflows of the 50 acres.

He also devised to his executors "the aforesaid mill seat and what it overflows, to be sold if my executors see fit, that is to say my part of said mill seat, being one-half."

Plaintiff read in evidence a deed to herself from Isabel, devisee of Hector McAllister, dated January 8, 1858, for the said three tracts of land.

Defendant read in evidence a deed from the executors of Hector McAllister to Thomas Murphy, dated April 30, 1811, conveying among other property, "Also the one-half of a mill seat on Lock's Creek with so much of the land of Hector McAllister's estate as the water raised by the mill may cover, with free privilege of making and enjoying a lumber yard and road from saw-mill to the main road, with a further privilege to dig earth for the purpose of making or repairing said mill-dam off of any of the land devised by Hector McAllister to his successors, to have and to hold the above-mentioned premises, &c., &c "

Defendant read in evidence a certified copy of an abstract of a grant to Malcom Blue for 70 acres, dated 29 Feb., 1775, registered in Cumberland county, Feb. 10, 1876. Also a certified copy of a survey with plot attached for 70 acres for Malcom Blue dated 28 June, 1775, the calls of which correspond with the calls of the above grant. This grant was located without dispute and laps upon the 200 acre tract and the 33 acre tract.