Volume 100 — North Carolina Reports

ACTION for the recovery of land, begun in Mitchell County, and removed to the Superior Court of Catawba, where it was tried before MacRae, J, at Fall Term, 1888. The verdict and judgment were for the defendants and the plaintiffs appealed. The facts sufficiently appear in the opinion.

Civil ACTION, tried before MacRae, J., and a jury, at the Fall Term, 1887, of MeckleNBüeg Superior Court. There was a verdict and judgment in favor of the defendants. Plaintiff appealed. The facts are set out in the opinion of the Court.

<p>Civil ACTION, tried before MacRae, J., at Spring Term, 1887, of the Superior Court of Ashe County.</p> <p>This action is to recover possession of land, and the sole controvery is, as to the plaintiff’s title thereto, under the following facts;</p> <p>The defendant William Powers owned the land, and, becoming a surety on the official bond of one Parsons, Clerk of the Superior Court of Ashe County, was sued as such, ■ judgment recovered, and execution issued, under which the Sheriff sold and conveyed the land to the plaintiff.</p> <p>The feme defendant Ruth A., in support of her title, introduced a deed from the said William Powers to herself, executed ib May, 1872, for the recited consideration of five hundred dollars, conveying the land to herself, and proved that in April preceding, the grantor had agreed that, if she would marry him, and to this she gave consent, he would make her title thereto, in pursuance of which, the deed was made; and this was before the execution of the official bond of the Clerk. The marriage took place in November of the same year, and the deed to the feme defendant was registered some time in the year 1885.</p> <p>Before the trial of the issues, and these facts appearing in evidence, the Court instructed the jury, that the deed to the feme defendant was a marriage contract or settlement, and, not having been proved and registered within six months, was inoperative against the plaintiff. To this charge the defendants excepted, and after verdict and judgment against the defendants, they appealed.</p>

Civil actiost, tried before MacRae, J, and a jury, at September Term, 1887, of MeckleNBURG Superior Court. The plaintiff resided in the town of Charlotte, in this State,, and W. C. Sedden & Co. were doing the business of brokers in the city of Richmond, in the State of Virginia, in the year 1881.

<p>Appeal — Practice—Error Apparent. in Record — Assignment of Error.</p> <p>The statute (§ 957 of The Code) requiring the Supreme Court to render such judgment, &c., as shall appear to be proper from inspection of the whole record, has reference to the essential parts of the record, such as the pleadings, verdict and judgment, in which, if there be error, the Court will correct it, though it be not assigned. If tliere be error in such matters as are not necessarily of the record, the Court will not see and correct it, unless it be assigned. (Report of State y. Reynolds, 95 N. C., 616, adverted to as incorrect and misleading).</p>

Civil action, tried before Boykin, J., at Fall Term, 1887, of Burke Superior Court. It appears that Babel Moore died in the County of Burke in 1874, leaving a last will and testament, which was duly proven, by which he devised to his surviving widow, Nancy B. Moore, all his real estate — the land described in the complaint — for her life or widowhood, and then to the plaintiffs, except the husband plaintiff, in fee.

Civil action, tried at the Fall Term, 1887, of the Superior Court of Burile County, before Boylcin, J., and a jury. The defendant P. J. Walker, individually, and as administrator of Job Hicks, appealed. The facts appear in the opinion.

Civil action, for the recovery of personal property, heard before (lark, J., at November Term, 1887, of the Superior Court of Rowan County. The plaintiff alleges that he is the surviving partner of Smithdeal & Ritchie, and, as such, is the owner, and entitled to the immediate possession of the horse described in the complaint.

Civil action, heard by Gilmer, J., at May Term, 1887, of Iredell Superior Court. T. (’. Hauser’s executors, who were plaintiffs, appealed. The facts appear in the opinion of the Court.

Civil actioN, tried before MacRae, J., at Pall Term, 1887, ■of the Superior Court of Mecklenburg. On the 25th day of December, 1882, W. H. D. Wager bought a stock of goods from M. E. Crowell, for which he gave his note for $1,910.18, payable on the 20th day of February following, and to secure the same, as also a debt of .about $300, due by account, reconveyed the same by deed of mortgage to said Crowell.

Civil ACTION, tried before Connor, J., at February Term, 1888, of the Superior Court of Iredell County. . The complaint alleges that the plaintiff, desiring to purchase a lot in the town of Statesville, on which to erect a factory, with the necessary buildings, in which to carry on the business of manufacturing tobacco, and so informing the defendant, entered into a negotiation for the purchase of that hereinafter mentioned, for which the sum of $500 was demanded.

Civil ACTION, heard before Gilmer, J., at November Term, 1887, of the Superior Court of Forsyth County. The facts sufficiently appear in .the opinion.

Civil action, for the recovery of land, tried before Montgomery, J., at Fall Term, 1886, of Buricb Superior Court. The plaintiffs claim title under a grant from the State, dated September 4th, 1882, issued upon an alleged entry, made January 10th, 1880, and a survey, made February 10th, 1882, of which entry, they allege, the defendant had notice.

Civil ACTION, heard before Clark, J., at November Term, 1887, of Iredell Superior Court, oil appeal from a Justice of the Peace. It appears that Nicholas Stikeleather died in 1885, leaving a last will and testament, which was duly proven.

<p>Municipal Corporations— Townships— Township Bonds— Constitution— County Revenue Subject to Legislative Control.</p> <p>1. Townships are within the power and control of the General Assembly, just as are counties, cities, towns, and other municipal corporations. It may confer upon them, or any single one of them, corporate powers, with the view to accomplish any lawful purpose. Such powers may be conferred for a single purpose as well as many. Semble, the people of localities may be incorporated into road districts, school districts and the like.</p> <p>2. The General Assembly may empower a township, with the sanction of its qualified voters, to aid in the construction of a railroad by levying taxes and contracting a debt to raise money for that purpose.</p> <p>3. The mere fact that other neighborhoods will derive incidental advantages from such action on the part of the township, is no objection to legislation of this kind.</p> <p>4. An Act of Assembly directing that the county taxes, which might be levied upon the property and franchise of a railroad company in a certain township, should be applied, as far as necessary, to the payment of the interest on bonds issued by such township in aid of the railroad, is constitutional.</p> <p>5. The General Assembly may direct how the ordinary county revenue shall be applied. It may direct that the revenue arising from a specified source shall be applied to a particular object.</p>

<p>Executors and Administrators — Evidence, § 590 — Statute of Limitations and Presumptions — Bonds payable in Coin — Relations between Personal and Real representatives of Deceased Debtor.</p> <p>1. An executor, when sued for an account, is entitled to credit for payments made by him on debts of his testator, although such debts were barred by the statute of limitations, or were, under the statute of presumptions, presumed to have been paid at or before the death of the testator. The law does not require an executor to make his testator “sin in his grave,” by setting up an unconsci-entious defence.</p> <p>2. Especially is the above true, when the testator, shortly before his death, told the executor that he owed the debts in question, and wished them paid.</p> <p>3. In such a case, the testimony of the executor as to the statements of his testator, that he owed the debts, &c., is not rendered incompetent by sections 580 and 590 of The Code.</p> <p>4. An executor, acting under the rule laid down in Roberson v. Brown, 63 N. C., 554, in settling a bond of his testator’s, payable in coin, is protected, although the rule established by that case is at variance with the ruling of the Supreme Court of the United States.</p> <p>5. The ruling in Bevers v. Parle, 88 N. C., 456, as explained and corrected in Speer v. James, 94 N. C., 417, with reference to the relations existing between the personal representative of a deceased debtor, and his devisees and heirs at law, confirmed.</p>

Civil ACTION, tried before MacRae, J., at August Term, 1886, of Stokes Superior Court. Judgment for defendants. Plaintiffs appealed. It appears that Robert Galloway died, in the County oí Rockingham, in the year 1832, leaving a last will and testament, which was duly proven, and the executors therein named, duly qualified as such.

<p>Husband and Wife — Harboring Wife — Evidence—Leading Questions — Dockets of Justices, Quasi Records — Incompetent Evidence not objected to— Vindictive Damages — Evidence to impeach Verdict.</p> <p>1. In a suit by a husband, charging defendant with harboring and debauching plaintiff’s wife, it was competent to ask the plaintiff, testifying in his own behalf, in reference to an action theretofore brought by the wife for divorce, “ Do you know who was present (at the trial of that action) as the friend and adviser of your wife ? If yes, who was it ?”</p> <p>2. It is for the Judge below to exercise a discretion, as to when the rule as to leading questions should be relaxed ; and it is only when his exercise of such discretion is clearly erroneous, and to the prejudice of the complaining party, that it constitutes ground for a new trial. It seems that the exercise of the discretion is not assignable as error.</p> <p>3. To show relations between defendant and plaintiff’s wife, it was competent to prove that, while she was living in a house belonging to defendant, he had her supplied with a sewing-machine and instructed in its use.</p> <p>4. While the minutes of proceedings before a Justice of the Peace are a quasi record and evidence of what is properly entered upon them, it is competent to prove the conduct of a person at a trial, to show his relations with one of the parties.</p> <p>5. Plaintiff having, at former term, .issued a writ of habeas corpus ad testificandum, to his wife commanding her to produce the body of her young child at the trial; Held, that the admission of the writ in evidence was proper, for the purpose of showing that plaintiff had endeavored to have witness and child present at the trial.</p> <p>6. The admission of incompetent evidence, without objection, is assignable as error, only when the evidence is made incompetent by statute.</p> <p>7. In actions for torts, where it is proper for the jury to give vindictive damages, it is competent to hear evidence of the pecuniary condition of the defendant.</p> <p>8. Where the defendant wantonly enticed plaintiff’s wife away from him, and harbored and debauched her, held to be a case for -vindictive damages.</p> <p>9. A stranger is justified in giving the wife of another continued shelter and protection, only when the husband treats her with such violence as to endanger her personal safety.</p> <p>10. Evidence to impeach a verdict for the misconduct of a jury, must come from other sources than'the jury itself.</p>

<p>Construction of Will — Contingent Limitations — Partition— Estoppel.</p> <p>1. A testatrix, among other provisions, devised as follows :</p> <p>“ Item 3. I will and devise that my son Robert and my daughter Ellen have two hundred acres of land laid off in good shape, to include all the houses and improvements — to remain undivided until Robert becomes of age, or until one of them gets married— then to be equally divided between them.</p> <p>(Item 5, gives land to her son John, in fee.)</p> <p>" Item 9. I will and desire, that should my son John die, leaving no heir, I will and desire that Ellen and Robert heir his part of my estate; and should Ellen and Robert die leaving no heir, then the surviving one to heir the estate of deceased brother or sister.”</p> <p>Held, that the time when the contingencies are to happen, so as to give effect to the ulterior limitations, is the death of the respective devisees without children then living, and no earlier period.</p> <p>2. Where land is devised to several, “ to be equally divided between them,”'with cross contingent limitations, a judgment, in a proceeding for partition, does not estop either to claim the share of the othei’s upon the happening of the event which is to give effect to the limitations. The partition, being in accordance with the provisions of the will, separates that which was before held in common; but in no way disturbs the limitations; these adhere to the respective shai’es after partition, as fully as they did to the whole befoi’e pai’tition.</p> <p>(Davis, J., did not sit on the hearing of this case.)</p>

Civil action, tried before Shipp, J., at October Term, 1887, of Vance Superior Court. The Court.intimated an opinion that plaintiff’s cause of action was barred by the statute of limitations, ih deference to which plaintiff submitted to a nonsuit and appealed. This action, begun on the 2d day of February, 1887, by the plaintiff, J. 8.

<p>Evidence, § 590 — Objections to Evidence — Effect of Forbearance to Sue for Unlawful Use of Trade-Mark.</p> <p>1. In a legal controversy concerning the ownership of a trade-mark, plaintiff claimed title to the same under one G. Defendant also claimed an interest in the trade-mark, acquired, as he alleged, in association with, or by virtue of transactions with G.; Held, that defendant could not be heard to testify as to any dealings or transactions between himself and G. — who was then dead — -with reference to the subject of the controversy.</p> <p>2. Where a copy is offered in evidence and objection is made, not on the ground that the original is not produced, but on some other specified ground, the objection that the paper is not primary evidence cannot be made in the appellate Court.</p> <p>3. Plaintiff introduced in evidence a copy of defendants’s application for registration of a trade-mark. Defendant stated, on his examination as a witness, that the paper was a copy of his application ; Held, that it was proper to allow plaintiff to require defendant to state that there was a proceeding or declaration interfering after his application was filed, as such answer tended to show that there had not been a quiet acquiescence in the validity of defendant’s claim to ownership of the trade-mark, and a submission to it. ,</p> <p>4. Allowing an improper question to be asked cannot be assigned for error if the witness makes no response to it.</p> <p>5. As between two adverse claimants of the invention and sole ownership of a trade-mark, no greater force is to be given to the fact that one of the parties used the trade-mark for several years without being molested therein by the other, than that of evidence tending to disprove the claim of the other. Such forbearance on the part of the true owner, beyond its weight in disproving his title, cannot have the effect of extinguishing his rights, or operate beyond barring an action under the statute of limitations, or a presumption of an abandonment. But such indulgence may be deemed such an assent to the use of the trade-mark as would not entitle the owner to demand damages for its intermediate use.</p> <p>6. Upon an issue as to the title tp a trade-mark, a witness testified on the trial, without objection, “the plaintiff owns it now;” Held, that, there being no contradictory evidence, it was proper to leave the jury to pass upon it, although it had been previously shown that B. was formerly the owner and there was no other proof offered of a transfer from B. to the plaintiff.</p>

Civil action, tried before Avery, J., at Spring Term, 1887, •of Gates Superior Court. Judgment for defendant; plaintiff appealed. The facts appear in the opinion of the Court.

Civil ACTION, tried before MacRae, J.', and a jury, at the Fall Term, 1887, of Mecklenburg Superior Court. Verdict and judgment for plaintiffs. Defendants appealed.

Civil actioN, tried before Connor, J., at January Term, 1888, of tlie Superior Court of Cabarrus County. Defendant appealed. 1. The plaintiff alleged that in 1881 he conveyed, by deed in fee, to the defendant a tract of land mentioned in the complaint, for the sum of $5,000. 2.

<p>Civil action", for the recovery of land, heard before Con-nor, /., at September Term, 1887, of Richmond Superior Court.</p> <p>Jury waived. Trial by the Judge. The plaintiff appealed.</p> <p>The defendant, Hugh A. Barbour, becoming indebted to the firm of W. F. Kornegay & Co. in the sum of $2,000, due by notes, to secure the same, conveyed to the said creditors, by deed of mortgage, with a power of sale in case of default in making payment, as each became payable, a steam engine and certain other machinery, as also the tract of land described in the complaint, and sought to be recovered in the present action.</p> <p>The indebtedness not having been provided for at maturity, according to the stipulations in the mortgage, the personal property conveyed therein was put up and sold by an agent and attorney of the mortgagees, employed for that purpose, and being bid off by the agent conducting the sale, was put down by them to him, as purchaser, at the price of one thousand five hundred dollars. In like manner, on the day following, and after due advertisement, the land was also sold at the court-house, by the agent, who, on behalf and by authority of the plaintiff, Gibson, bid off the same for him, .at the price of five hundred dollars, and accordingly, on his making payment of the price, the said W. F. Kornegay & ■Co. executed a deed of conveyance therefor to him. The present action was then commenced to recover the possession withheld by defendant, damages for the detention, and to ■establish title to the premises</p> <p>The defence arises out of the foregoing statement of facts, and the defendant resists the claim, insisting upon the absolute nullity of the attempted sale of the personal property, .and demanding that the deed, purporting to pass the estate in the land, be declared null and inoperative to divest the. -defendant of his equity of redemption therein, and that the plaintiff holds the legal estate, clothed with the same attaching trusts as when held by the mortgagees. He also asks for a reference of the account between the parties to the mortgage, claiming that there will be found nothing due from him.</p> <p>A jury was dispensed with, and the Court, by consent, finds upon the testimony of plaintiff’s witnesses, the above facts. At defendants’ instance, W. F. Kornegay & Co. are made parties defendant by summons, but have failed to make answer or defence. The Court, in entering judgment, recites the facts in substance as stated, and proceeds to declare the deed made to the plaintiff by the mortgagees in■effectual to divest or defeat the defendants’ equitable right to redeem, and that the trusts of the mortgage follow and .adhere to the transferred legal estate in the land, and directs a general account to be taken of the mortgage liabilities between the original parties thereto by the Clerk, with ■.the value of the engine and machinery, to the end that it ¡be applied to the secured indebtedness^with leave to said W. F. Kornegay & Co., consisting of W. F. Kornegay and vO. Dewey, partners, to file their answer within thirty days thereafter, if so advised, and that the cause be retained.for further proceedings.</p> <p>The plaintiff excepted to the said judgment, and assigned, as grounds of exception :</p> <p>1. That his Honor has found as a fact that James T. LeGrand, at the sale of the land, acted as agent of the plaintiff, W. A. Gibson, whereas, upon the evidence, his Honor ought to have found, either as a conclusion of fact or law, that LeGrand was not the agent of the plaintiff at said sale, and did not buy as his agent, there being no evidence of said alleged agency.</p> <p>2. That his Honor has found that the defendant Barbour was at the sale, but did not have notice or knowledge that LeGrand was bidding for the plaintiff, there being no evidence upon which to base said finding.</p> <p>3. That his Honor has failed to find that the defendant Hugh A. Barbour made no objection to the sale, though he was present at the sale, and had the opportunity — all of the evidence being that he made no objection.</p> <p>4 That his Honor has failed to find the rental value of the land — all of the evidence showing that it was between $>40 and $50 per year.</p> <p>5. That he has not found that the plaintiff was the owner, and entitled to the immediate possession of the land.</p> <p>6. That his Honor, in the said judgment, has not stated, separate^, his conclusions of fact and law.</p> <p>From the judgment rendered by the Court, the plaintiff appealed.</p>

MotioN rob, an injunction in a civil action, heard before Clark, J., at November Term, 1887, of the Superior Court of Iredell County. This was an application, by motion, for an injunction to restrain the feme defendant, pending the action, until the hearing upon the merits, from selling, disposing of, or collecting the promissory notes, and enforcing the mortgage to secure the same, specified in the complaint.

Civil ACTION, tried before Connor, J., and a jury, at February Term, 1888, of Iredell Superior Court.

Civil actiox, for recovery of land, tried before Graves, J., at Spring Term, 1886, of the Superior Court of Hex-DERSON. The facts appear in the opinion, in which the plat, on page 214, is referred to.

<p>Power of Sale in a Will — Statute of Frauds, § 1554, The Code.</p> <p>1. When, by the terms of a will, power is given to an executor to sell certain lands, the lands descend to the heirs of the devisor until divested by an effectual exercise of the power.</p> <p>2. Where an executor, having power conferred upon.him by the will to sell certain land, exposes the land to public sale, announcing at the time that no deed or contract for title would be given until the price was paid, and the land was bid off by a purchaser, who gave his bond for the price, but received no written acknowledgment of his purchase from the executor ; Held, that the sale was a nullity under the statute of frauds, and the heirs of the devisor could recover the possession from the purchaser or those claiming under him.</p>

Civil ACTION, tried before Merrimon, J., at April Term, 1887, of FkankliN Superior Court. Judgment dismissing the action. Defendant appealed. The following is a copy of the material parts of the case stated on appeal: W. B. Allen obtained judgment on November 2d, 1886, before a Justice of the Peace, against Robert Strickland, and procured execution to issue thereon to F. C. Holden, the constable. Strickland claimed his personal property exemption.

Civil ACTION, originally commenced before a Justice of the Peace for the County of GraNville, to recover the value of plaintiff’s cow, killed on defendant’s road, and carried by appeal to the Superior Court, and tried before Shepherd, J., at Fall Term, 1887, of said Court.

Civil. ACTION — Ejectment—tried before Avery, I, and a jury, at the Fall Term, 1887, of Northampton Superior Court. Verdict and judgment for the defendant. Plaintiff appealed. The plaintiff, in support of his title to the land described in his complaint, produced in evidence: 1. Proceedings for partition of land of one Edward E. Moore, among his heirs at law, in 1825, and the allotment of share B to Stephen L. Moore, in the Court having jurisdiction. 2.

Special proceeding for dower, heard on appeal, at Fall Term, 1887, of WASHINGTON Superior Court, before Gh'aves, J. There was judgment for the defendants, from which plaintiff appealed. The facts appear in the opinion.

Civil ACTION, to recover damages for trespass on land, tried before Graves, J, at Fall Term, 1887, of Chowan Superior Court. Judgment for defendant; plaintiffs appealed. The record is voluminous, and the statement of the case is a length}' one, but as only two exceptions appear in the record, only so much of the case is stated here as is necessary 'to the full understanding of these exceptions.

Civil action, tried before Graves, J., at Fall Term, 1887, of Perquimans Superior Court, upon the following case-agreed : “ 1. On January 25th, 1886, Joshua L. Whedbee executed to the plaintiffs the mortgage hereto attached and marked “ A,” which was duly registered in the proper county at once. 2. Both plaintiffs and defendants were non-residents of North Carolina, and were commission merchants and cotton factors in Norfolk, Va. 3.

<p>Civil ACTION — Ejectment—tried before Avery, J., at Fall 'Term, 1887, of Edgecoiibe Superior Court.</p> <p>Judgment was rendered for the plaintiffs; defendant appealed.</p> <p>The facts appear in the opinion.</p>

Civil. ACTION, against a Sheriff, to recover the penalty imposed by § 2079 of The Code, for a false return, tried before Graves, /., at Fall Term, 1887, of Chowan Superior Court. The- defendant demurred to the complaint. Demurrer overruled. Appeal by defendant.

ActioN op EjectmeNt, tried before Gilmer, J., at March Term, 1887, of Davidson Superior Court. The plaintiff claimed title under a judicial sale, made in an action to’which one F. D. Lookabill was a party defendant. The defendants are the widow and one of the heirs at law of said F. D. Lookabill. There was judgment that plaintiff recover the possession of the land in controversy from the defendants.

<p>Civil actioN, tried before Clark, /., and a jury, at May-Term, 1887, of Cumberland Superior Court.</p> <p>Judgment for plaintiff. Appeal by defendant.</p> <p>The facts appear in the opinion.</p>

Civil ACTION, tried before Graves, J., and a jury, at Fail Term, 1887, of Camden Superior Court. Plaintiff, upon an intimation of opinion by the Court, submitted to a nonsuit, and appealed. • The facts appear in the opinion.

This was a motion, heard by Philips, J., at March Term, 1887, of Durham Superior Court, for judgment, in accordance with the opinion of the Supreme Court, which had been duly certified, against the defendant and Eugene Morehead, his surety, upon an undertaking to stay execution of the judgment theretofore rendered in this case at Spring Term, 1886, of Durham Superior Court, and which judgment, on appeal by defendant, was affirmed by the Supreme Court. Vide 95 N. G, 60.

<p>This was a motion to amend a judgment of the Court, inadvertently entered at October Term, 1886, (95th N. O., 1).</p>

This was an appeal by the plaintiff, from an order made by Connor, J., at Chambers, in Wilmington, in April, 1887, amending a judgment rendered by Clark, J., at Fall Term, 1886, of the Superior Court of JoNES County, to which the proceeding had been moved, by consent of parties, from Onslow. The facts sufficiently appear in the opinion.

Civil ACTION, tried before Gilmer, J., at January Term, 1887, of the Superior Court of Cabarrus. There was a verdict and judgment for plaintiffs, and defendant appealed. The plaintiffs, Cannon, Fetzer & Wadsworth, cotton merchants, engaged in business at Concord, in this State, had entered into contracts with persons in New York, to deliver to them respectively one hundred bales of cotton in December, 1879, and five hundred in February of. the next year.

Civil ACTION, to recover damages for injuries alleged to have been received by the plaintiff, through the negligence of the defendant company, tried before Connor, J., at September Term, 1887, of Richmond Superior Court.

Civil actios for recovery of land, tried before Clark, J.,. at March Term, 1887, of the Superior Court of CUMBERLAND. It is admitted that the plaintiffs are the widow and heirs at law of E. L. Pemberton, deceased. ■ They bring this action to recover the land specified in the complaint, and claim to derive title thereto through their ancestor, from George-D. Simmons, now deceased. The defendants are the widow and heirs at law of the last named person.

This is an appeal by the plaintiff', from the refusal of Gil-mer, J., to grant a motion made at Chambers, on the 30th of July, 1887, to continue an injunction, restraining the sale of the land mentioned in the pleadings until the .final hearing of the cause, and also upon exceptions (reserved) to the rulings of Boykin, J., previously made in the cause, which is pending in the Superior Court of Rockingham.

Civil action, pending in Iredell Superior Court, and heard and determined by Clark, J., at Chambers, in Salisbury, August 29th, 1887. Judgment was entered for the plaintiff. Defendant appealed.

Civil action, beard upon exceptions to a referee’s report. The ease is fully reported in 96 N. C., 298, in which this Court directed a re-reference of the account, to be stated upon the basis of the opinion then delivered.

<p>MotioN to dismiss appeal, heard by the Court at this-Term.</p> <p>The facts are stated in the opinion.</p>

<p>MotioN to remove a case from Halifax County to Northampton County, for trial, heard before Avery, J., at Fall. Term, 1887, of Halifax Superior Court.</p> <p>The facts appear in the opinion.</p>

Civil action, heard upon exceptions to the report of a referee, by MacRae, J., at May Term, 1886, of Iredell Superior Court. The defendant M. M. Alexander, who was one of the legatees of Adam R. Simonton, appealed.

Civil actioN, tried before Connor, J., at November Term, 1887, of ANSON Superior Court. The action was brought to obtain a construction of the will of plaintiffs’ testator, for the guidance of plaintiffs in the discharge of their duties. A jury trial was waived, and the Court found the facts. Both sides appealed.

Civil ACTION of Ejectment, tried before Philips, J., at November Term, 1887, of DupliN Superior Court. ■ When this cause was before the Court, upon the defendant’s appeal from a ruling, that under the pleadings, and upon an averment of title to the land in themselves, they could not be heard to controvert that of the plaintiff, by opposing evidence merely, the ruling was declared to be erroneous, the judgment reversed, and a new trial awarded; 95 N. C., 573.

Civil action, tried before Shepherd, J., and a jury, at January Term, 1888, of New HaNOVER Superior Court. Judgment for defendant. Plaintiff appealed. This action is prosecuted to recover in damages the value of a lot of hams and bacon transported over the defendant’s road to its terminus, the point of delivery, at Wilmington, in this State, which, while in the warehouse of the company, were on the 21st day of February, 1886, destroyed by fire.

Civil ACTION, heard before Merrimon, J., at Spring Term, 1887, of the Superior Court of VaNce.

<p>Civil ACTION, heard upon exceptions to a referee’s report. The case is fully reported in 95 N. C., 265, in which the Court, directed a reference to the Clerk of this Court, to reform the account in accordance with the opinion.</p>

Civil ACTION, tried before Clark, J., at May Term, 1887, of CumbeblaND Superior Court. Judgment for defendant, dismissing the action, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The point was raised by motion to dismiss, in the nature of a demurrer ore tenus. Plaintiff appealed. The facts appear in the opinion.

Civil ACTION, tried beforé GlarJc, J., and a jury, at January Term, 1887, of RobesoN Superior Court.

The defendant and one A. E. Wilson were indicted in the Superior Court of Transylvania County for fornication and adultery. The female defendant pleaded guilty, and the defendant Guest was tried upon a plea of not guilty, before MacRae, I, at Spring Term, 1888, of said Court. One W. P. Wilson, the husband of the female defendant, was offered as a witness on behalf of the State, and objected to on the ground that he was incompetent.

MotioN in behalf of the defendant who had been sentenced to jail at Pall Term, 1887, of the Superior Court of Burke, heard before Merrimon, J., at Spring Term, 1888, of said Court. At the Fall Term of 1887, of the Superior Court of said county, the appellant was convicted of an affray and sentenced “ to be imprisoned in the common jail of Burke County, for twelve months, and be discharged upon payment of costs;” and he was in execution.

This was an indictment for perjury, tried before Shepherd, J., at the October Term, 1887, of .the Superior Court of DURHAM. The perjury alleged to have been committed, was upon the trial of an issue joined in a civil action, tried before G. A. Barbee, a Justice of the Peace for the County of Durham, in which the defendant was plaintiff and A. M. Rigsbee was defendant.

This was an indictment for an ’ assault with deadly weapons, and resisting an officer, tried before Clark, /., at March Term, 1888, of Wilkes Superior Court. Verdict of guilty. Defendants appealed. It was in evidence that H. Kendall was a Justice of the Peace for the County of Wilkes, and, as such, on the 1 Oth day of March, 1886, upon the affidavit of one W. L. Dula, issued a warrant against the defendant F. L. Dula, for trespass upon the lands of said W. L. Dula.

Indictment for rape, tried before Meares, J., at November 'Term, 1887, of the criminal Court of New Hanover county. The facts are set out in the opinion.

<p>PROCEEDINGS by sci. fa. against bail, heard by Merrimon, J., at the Spring Term, 1888, of HENDERSON Superior Court.</p> <p>The State appealed.</p> <p>It appears that one Joe Jones was arrested on the 18th day of April, 1887, in the County of Henderson, under a State warrant, charging him with the crime of larceny, and taken before the Justice of the Peace, who issued the warrant, to be examined in respect to that charge against him, and committed, held to báil or discharged, according to law. He wras not prepared to complete the examination on that day, and for cause assigned, requested that the further examination be postponed until the 28th of the same month, at a place designated, and that in the mean time he be allowed to have bail. The Justice of the Peace so postponed the further examination, and took the bond of the said Jones and Mary A. Jones surety, payable to the State, in the sum of $1,000, conditioned that the said Joe Jones would appear before the Justice of the Peace at the time and place specified therein, to be further examined upon the warrant and charge.</p> <p>Afterwards, the Justice of the Peace being present at the time and place specified in the condition of the bond, the said Joe Jones was duly called and failed to appear, as he was bound to do; and such failure and default was duly noted by the Justice of the Peace, and he thereupon certified the whole proceedings, including the bond mentioned in the matter of the said State warrant, to the Superior Court of the county named. That Court directed that a writ of scire facias issue, commanding the said Joe Jones and Mary A. Jones to appear therein and show cause, &c., and such writ was issued.</p> <p>At the Spring Term of 1888, of that Court, the Sheriff returned that he had served the said writ on Mary A. Jones, and that Joe Jones could not be found. Mary A. Jones pleaded nul tiel record. The Court, upon hearing the writ read, and seeing the bond mentioned, and the proceedings in connection therewith, “dismissed” the scire facias. The Solicitor for the State having excepted to the judgment of the Court in that respect, the State appealed to this Court.</p>

Indictment for seductioN under promise of marriage, under Acts of 1885, ch. 248, tried before Clark, J, at November Term, 1887, of Rowan Superior Court. Verdict of guilty; appeal by defendant. The facts are stated in the opinion.

This was an indictment for keeping a gambling table, at which certain games of chance were played, tried before Meares, J., at January Term, 1888, of the Criminal Court of New HaNOVER. The facts appear in the opinion.

INdictment under § 1089, The Code, tried at the January Term, 1888, of the Inferior Court of BüNCOMbe County, and affirmed, upon appeal, by MacRae, J., at March Term, 1888, of Buncombe Superior Court. The defendant is indicted for a violation of the statute (The Code, § 1089).

<p>Plea of Insanity — Plea in Abatement — Apt time — Grand jury— Special venire, §§ 1726, 1739 The Code — Insanity as a defence — “ Dipsomania,” “ Moral Insanity,” “ Delirium Tre-mens,” — Evidence; opinions of witness — Jurors; qualification and challenge of — -Malice.</p> <p>1. A defendant on trial for murder entered the following plea : “I admit the killing, but was insane at the time of the commission thereof : therefore not guilty.” The Court rejected all of the plea except that of “ not guiltyHeld, that such action was proper, as under the plea of not guilty every defence, in rebelling, or mitigating and reducing the offence to a lower grade, was admissible.</p> <p>2. A plea in abatement, on the ground of the incompetency of one of the grand jurors, put in after pleading to the indictment, is not in apt time.</p> <p>3. The partitions of the jury box, instead of being marked “No. 1 ” and “No. 2,” were marked “ jurors drawn ” and “jurors not drawn”; there was a look on each partition, but one key unlocked both; there was but one key and that was placed in the custody of the Register, and ex-officio Clerk to the Board of County Commissioner’s, by the Chairman of the Board; Held, that a special venire drawn, under the directions of the presiding judge, from such boxes was legal. (See §§ 1726, 1739, of The Code.)</p> <p>4. The finding of the Court below, that a juror is indifferent, cannot be reviewed. Therefore, where, on a trial for murder, a juror states that he has formed the opinion that the prisoner is guilty on report merely and, while it would require evidence to remove this impression, yet he could, on hearing the evidence from the witnesses and the law from the Court, decide impartially; it was held, that the Court below having decided that he was indifferent there is no review in this Court.</p> <p>5. A juror related to the prisoner by affinity within the ninth degree is disqualified to sit in the cause, and was properly rejected upon the challenge of the State.</p> <p>6. If a juror is rejected upon an improper ground of challenge made by the State, the prisoner cannot assign it for error, if a jury is obtained before he has exhausted his peremptory challenges.</p> <p>7. It is competent in all judicial trials for those, who have had opportunities of observing a person, to testify as to their opinions of his sanity or insanity, although such witnesses are not experts.</p> <p>8. Experts alone can give an opinion based on facts shown by others, assuming them to be true.</p> <p>9. Where the killing with a deadly weapon is admitted, the law implies malice, unless its absence is made to appear to the satisfaction of the jury.</p> <p>10. A prisoner is assumed to be sane, that is, to have the degree of mind and reason required to constitute criminal responsibility for his acts. If insanity is relied on as a defence, the burden is on the prisoner to establish it to the satisfaction of the jury.</p> <p>11. The law recognizes “ delirium tremens ” as a form of diseased mind, which excuses crime committed while the prisoner was laboring under it to a degree that dethroned reason. But “dipsomania’’ and “moral insanity” are not recognized by our law as defences.</p> <p>12. Some forms of insanity, when shown to exist, are presumed to continue, but “delirium tremens” does not come within that class, although chronic insanity, produced by alcohol, and assuming a permanent form such as to undermine reason, does.</p> <p>13. The prisoner’s drunken condition, at the time of the commission of a crime, does not repel malice and reduce his crime to a lower grade.</p> <p>14. The test of accountability for. crime is the ability of the accused to' distinguish right from wrong, and that in doing a criminal act he is doing wrong.</p>

INDICTMENT for forcible entry, tried before Shipp, J., at January Term, 1888, of the Superior Court, of Warts.

INDICTMENT for unlawfully retailing spirituous liquors, by the measure less than a gallon, without license, tried before Clark, J., at the Spring Term, 1888, of the Superior Court of Alamance Countv.

Indictmekt for selling spirituous liquors without license, tried before Gilmer, J., at Spring Term, 1888, of Alamance Superior Court. The facts appear in the opinion.

IndictmeNT, for obstructing a navigable water course,, tried before Graves, J., and a jury, at Fal-1 Term, 1887, of Currituck: Superior Court. Verdict and judgment against the defendant, from which, it appealed to this Court.

INDICTMENT por larceny, tried before Connor, J., at February Term, 1888, of the Superior Court of Rowan, whither it had been removed from the Superior Court of Davidson. In selecting the jury, the defendant challenged a tales juror tendered for cause, who, upon his examination, stated “ that he had paid his taxes for the year 1886, but had not paid them for the year 1887.” That he had not paid his taxes for the last mentioned year, was assigned as cause of challenge.

INDICTMENT for obtaining goods under false pretensions, tried before Meares, J., at November Term, 1887, of the Criminal Court of New Hanover.

MotioN to docket a bastardy proceeding for trial, upon the return of a writ of recordari, heard before Phillips, J., at May Term, 1887, of. Durham Superior Court. The facts appear in the opinion.

<p>'Rape of Child under ten — Indictment.under § 1101, of The Code; Form of.</p> <p>1. Where an' indictment for rape was in the usual form, charging the act to have been with force and against the will of prosecutrix, it was error to instruct the jury, that if the prisoner unlawfully had connection with prosecutrix -with her consent, she being at the time under ten years of age, he was guilty.</p> <p>2. If a child under ten years of age is forcibly ravished, her age need not be set out in the indictment. If she consents to the connection her age must be charged.</p>

INDICTMENT for forcible trespass, tried before Clark, J., and a jury, at Spring Term, 1888, of Rockingham Superior Court. Judgment in favor of defendant on a special verdict. Appeal by the State. The facts are stated in the opinion.

, at January Term, 1888, of the Superior Court of ROCKINGHAM. There had been a general verdict of guilty at the preceding term; the prisoner moved in arrest of judgment; the motion was refused, and judgment rendered against prisoner. In this Court the judgment below was declared erroneous, and this decision being certified, defendant moved for his discharge. His motion was denied, and prisoner again appealed.

<p>Taxes — 'Peddlers.</p> <p>The proviso to sec. 23 of the Revenue Law of 1887 (chap. 135,) exempting persons who sell goods of their own manufacture from payment of the peddler’s license tax, does not apply for the benefit of one who merely mixes and boils certain drugs and medicines together, and sells them under a deceptive name, as “Herbs of Life.”</p>

This is an indictment for murder, tried before Connor, J., at February Term, 1888, of Rowan Superior Court. Only two questions are presented for our consideration, and they are clearly presented in the ease on -appeal, as follows: “ The prisoner’s counsel, after the jury was empaneled, and before the introduction of any testimony, informed the Court that the prisoner desired to admit that he killed the deceased with a deadly weapon, averring that the killing was accidental.

INDICTMENT for murder, tried before Clark, J., and a jury, at March Term, 1888, of Wilkes Superior Court. The facts are set out in the opinion.

INDICTMENT, for slandering an innocent woman, under § 1113 of The Code, tried before Connor, J, and a jury, at Fall Term, 1887, of Bladen Superior Court. The defendant is charged, under § 1113 of The Code, with attempting, in a wanton and malicious manner, to destroy the reputation of one Sue 0. Smith, an innocent woman, by the speaking of the words set out in the indictment and imputing incontinency, he well knowing them to be false when so uttered.

Criminal action, tried on appeal from the Mayor of Mor-ganton, before Merri/mon, J., at Spring Term, 1888, of the Superior Court of Burke County.

INDICTMENT for forgery, tried before Clark, J., and a jury, at Fall Term, 1887, of Iredell Superior Court. The indictment charges the defendant with the forging, with intent to defraud, a certain written receipt, purporting to be an acknowledgment of the payment of money, upon a debt due by him, in form as follows : “ Rec’d of W. T. Bailey eight hundred dollars on land, to be credited on his land note, this May 16th, 1883. A. D. GAGE.

The defendant and one Allen were indicted for unlawfully selling spirituous liquors, and tried before Merrimon, J., at the Spring Term,… Held: under the Local Option Act, in the town of Hendersonville, at which election a majority of the qualified voters voted for “ License.” It was insisted on behalf of the defendants, “ that being charged with selling spirituous liquors only within two miles of Mud Creek Baptist Church, it was no longer necessary for them to exhibit a…

INDICTMENT for removal of crops, tried upon a motion to quash, at November Term, 1887, of the Superior Court of HaeNEtt, before Merrimon, J. On Tuesday, of the term of the Court, a bill of indictment was sent to the grand jury, and upon the examination of witnesses duly sworn before them, they returned the same into-Court “ a true bill.”' The Solicitor for the State conceded that this indictment was insufficient, did not charge the offence intended, and it-was quashed by the…

IndictmeNt for neglect of duty as overseer of a public road, tried before Clark, J., and a jury, at November Term, 1887, of Rowan Superior Court. The indictment was quashed, on motion of the defendant, and the State appealed. The facts appear in the opinion.

INDICTMENT for perjury, tried before Meares, J., and a jury, at January Term, 1888, of the Criminal Court of New Hanoveh. It is charged in the indictment that the false oath was taken in a criminal proceeding specified, pending before the Mayor of the city of Wilmington, on the 21st day of December, 1887, against several persons named therein, including the defendant, simply designated as John Green.

INDICTMENT for obstructing a public road, tried before MacRae, J., and a jury, at Spring Term, 1887, of Burke Superior Court. The indictment charged the defendant with unlawfully and wilfully obstructing a public road, “in Burke County, leading from the Shelby road to the Laurel road.” The State put in evidence the record of certain proceedings had before the County Commissioners, to show that the road charged in the indictment had been laid off and opened as a public road.