Volume 103 — North Carolina Reports

This was a special PROCEEDING- for dower, begun before ■the Clerk of theSuperiorCourtofYADKiN County, transferred to the Superior Court in term for trial,' and tried before Philips, J, and a jury, at Spring Term, 1889, of Yadkin Superior Court. There was a verdict and judgment in favor of the plaintiffs, and the defendants appealed.

<p>Appeal — Motion to Dismiss — Excuse for Failing to file Undertaking in Time.</p> <p>Where, upon amotion to dismiss an appeal on the ground that the undertaking was not filed in time, it appears that the appeal was taken in good faith, and the failure to file the undertaking in time was caused by the Clerk of the Superior Court being absent front his office, the motion will be denied.</p>

<p>This was a civil ACTION, tried at the February Term, 1889, of the Superior Court of Martin County, before Graves, J.</p> <p>The plaintiff demanded possession of a certain .tract of land, and the defendant denied that he was in possession of any land belonging to the plaintiff, or that there was any such land in Martin County as that claimed by the plaintiff.</p> <p>The issues and findings of the jury were as follows;</p> <p>1. “ Is plaintiff the owner of the land described in the complaint?” Answer. “Yes; one-seventh of the Bandy Bottom tract — 160 acres.”</p> <p>2. “Is defendant in the wrongful possession thereof?” Answer. “Yes.”</p> <p>3. “ What is the plaintiff’s damage ? ” Answer. “ Ten cents;”</p> <p>Judgment was rendered upon the verdict in favor of plaintiff.</p> <p>On the trial, it was agreed that one Ezekiel Leary had originally owned the laud. The plaintiff offered evidence tending to show, that Emmanuel Leary was a son and heir of Ezekiel Leary, and then offered a deed from Emmanuel Leary to Bradford Allen, da'ed in 1842. The plaintiff then offered evidence that he was son and heir of Bradford Allen, who had six other children, his heirs. There was evidence, tending to show the location of the land described in the deed to Bradford Allen, and tending to show that it was known as the Sandy Bottom tract, of 160 acres. There was also evidence tending to show possession by Bradford Allen, and those claiming under him, for forty years, of the land in controversy. There were many deeds offered by defendant from heirs of Ezekiel Leary and others, which the defendant insisted covered the land in controversy, and offered evidence tending to show it. There was no evidence that any judicial proceedings had ever been had for partition of the lands of Ezekiel Leary. There were no exceptions to the evidence. There were no special instructions asked for by the defendant, and there were no exceptions taken at the time to instructions 'given. After the verdict the plaintiff moved for judgment, and defendant moved for new trial for alleged errors in the instructions given. The instructions given presented every aspect of ihe case arising on the volume of evidence, oral and documéntary. The only error alleged was, that the Court had instructed the jury that if the plaintiff and those under whom he claimed held possession of a part of the land embraced in his deed for more than seven years, openly, continuously and adversely, it would ripen his title to all the land embraced in his deed which was not occupied by any one else, unless there was alappage; if there was a lappage, and neither party was in possession of the lap-page, as to that part embraced in both deeds, the latter title would prevail. The motion for new trial was overruled. Then the defendant objected that the answer of the jury was not responsive to the issues, and was vague and indefinite. The Court being of opinion that the answer of the jury was sufficient, gave judgment for the plaintiff, and the defendant appealed.</p>

<p>Deputy U. S. Marshals, Compensation of — Rev. Stat. U. S, § 3477 — Evidence; Objections to before Referee; Disposing of such Objections by Judge.</p> <p>1. Deputy United States Marshals have no claim against the Government for their compensation, but must look to the Marshal therefor. Hence, an assignment by a Deputy Marshal of his claim for compensation against the Marshal is nota violation of § 8477, Rev. Stat. U. S.</p> <p>2. A referee admitted certain evidence, which was objected to, and made his report without ruling on the admissibility of such evidence. In the Superior Court there was an order of re-reference, in which the referee was expressly directed to rule upon the admissibility of the evidence objected lo. The referee made another report, without passing on the evidence, and the defendant excepted: Held, that it was error to give judgment confirming the report without passing on the objection to the evidence, and that the Judge below could pass upon the competency of the evidence, without again recommitting the case to the referee.</p> <p>•(Shephesd, J., dissented as to the disposition made of the case.)</p>

This was an action oe claim and delivery, tried before Graves, J., and a jury, at the February Term, 188S, of Craven Superior Court.

Civil ACTION, tried before MacRae, J., at Fall Term, 1888, of Halifax Superior Court. The following are agreed upon as the facts in this controversy : 1.

<p>Wills, Witness to — The Code, §2147.</p> <p>1. A witness to a will assumes a serious duty and legal relation thereto, ne'cessary to its validity if there be but two witnesses, and an important one, however many there may be. The witness cannot rid himself of this duty for any cause, at his will and pleasure, certainly not without the testator’s consent, given in his life-time. Having subscribed as a witness, he is held by the law to such relation and the legal consequences of it.</p> <p>2. To be held as a witness to a will it is essential that the subscriber consent to be such, and that he sign in the presence of the testator.</p> <p>3. Where one signs his name on a will in the place where the subscribing witnesses usually sign, there is a presumption that he signed as,a subscribing witness, but the contrary may be shown.</p> <p>4. Where there was written, at the bottom of a will, “Witness, A B, C + D, E F,” and E F was a devisee in the will: Held, that it was competent to show that E F signed as a witness to the mark of O D, and did not sign in the presence of the testator, or, at his request, bécome a subscribing witness to the will itself.</p> <p>5. One who signs his name on a will in the place where.subscribing witnesses usually sign, is not deprived,of benefits conferred upon him by the will, if he, in fact, did not sign as a subscribing witness. The Code, §2147.</p>

Civil ACTION, tried before Avery, J., at April Term, 1888, of FRANKLIN Superior Court. The plaintiffs brought their action in the Court of a Justice of the Peace against the present defendants, to recover possession of a mule and certain cotton, of greater value than $50, and under the ancillary proceedings of claim and delivery the property was delivered to the plaintiffs in that action, who are the plaintiffs in the present one.

This was a civil action, for the foreclosure of a mortgage deed, tried before Graves, J., and a jury, at Fall Term, 1888, of the Superior Court of Greene.

This was a civil action, tried on appeal from the Court of a Justice of the Peace, at the April Term, 1888, of the Superior Court of Wake County, before Shipp, J. The material facts are stated in the opinion.

<p>Civil actioN, tried before Graves, J., at October Term, 1888, of the Superior Court of Vance.</p> <p>The complaint filed in this action, which was begun on December 17,1887, alleges that Bevil Ellington, being the owner of the tract of land therein described, made up of several parcels and containing about 443 acres, by deed executed in October, 1865, conveyed the same to the defendants Horace Ellington, a son, and William N. Ellington, the husband of his daughter Polly, together with the stock? farming implements and other articles of personal property on the plantation, upon the sole consideration of the support of the grantor and his wife during the residue of their respective lives.</p> <p>It avers' further, in reiterated allegations, that the said Bevil was, at the time, advanced in age, of enfeebled mind and body, unable to understand and measure the consequences of his act, to manage and dispose of his property, from want of legal capacity; and was, moreover, susceptible to undue influence, taking advantage of which, the defendants, by false and fraudulent representations, and the exercise of that control which they had acquired over him, procured the making of said deed for the very inadequate consideration expressed therein.</p> <p>It states that thereafter the said Bevil broke up farming and went himself to live with his son Horace, in whose house and with whose family he continued to reside until his death in August, 1869, while his wife went to, and took up her abode with, her daughter Polly, were she remained until her death in 1867.</p> <p>The prayer of the plaintiff, also a son of the said Bevil, is, that said deed be declared and adjudged void for the causes aforesaid, and he be admitted to share in the said property, as in case of an intestacy, and for general relief.</p> <p>The answer distinctly and in detail controverts all the averments as to an unsound mind and the want of legal capacity in the said Bevil to make an effectual disposition of his estate; denies the exercise of, or attempt to exercise, any undue or improper influence in procuring the deed, and the alleged inadequacj of the obligation assumed as the consideration of the deed, and sets up a defence, under the statute of limitations, to the action, and the possession under the deed, which, if invalid, is color of title, for more than seven years before the institution of the suit.</p> <p>The only issue submitted to the jury, and this without objection, was in these words:</p> <p>“ Is the plaintiff’s cause of action barred by the statute of limitations ? ”</p> <p>Under the instructions of the Court as to the law arising upon the facts admitted, as set out in the complaint, for the purpose only of raising the question of the effect of the lapse of time, and reserving the other matter in controversy in the pleadings, for further trial in the event of the defence under the statute, and from possession under the deed, being overruled, the issue was found in the affirmative.</p> <p>Judgment being entered in conformity with the verdict rendered in pursuance of the direction given to the jury to so find, upon the facts stated in the complaint, the plaintiff, understood as excepting thereto, appeals.</p>

<p>Civil action, tried before Avery, J., at October Term, 1888, of the Superior Court of the county of Wayne.</p> <p>The action commenced November 26, 1887, is brought to recover cotton, cotton-seed, corn and fodder, of the aggregate value of $117.50, as alleged in the complaint, which were taken under the ancillary proceeding of claim and delivery, but returned to the defendant, he having given the requisite undertaking.</p> <p>There was a reference, under The Code, to W. C. Monroe, Esq., whose report of finding of fact was, in substance, that the defendant John W. Bryan cultivated the land of the plaintiff E. T. Jordan for the year 1887 on shares, the plaintiff agreeing to furnish th.e team and agricultural implements, and to furnish Bryan with supplies, and Bryan to furnish the labor.</p> <p>The defendant raised on the land during said year a crop of corn, cotton, &c. (set out in full in the report), and the plaintiff advanced to the defendant the sum of $41.47. The plaintiff and defendant divided the corn, each taking his share thereof, and the defendant removed his part from the premises of the plaintiff before the bringing of this action. The plaintiff has received no other part of said crops. All the crops, except the defendant’s part of the corn, were on the premises of the plaintiff at the time of bringing this action, and a part of the crop was ungathered. The defendant, after the bringing of this action, offered to the plaintiff his part of the fodder, cotton, and cotton-seed. * * * The time agreed on when the advances made for 1887 should be due and demandable was when all the crops were gathered and divided. There was no agreement as to the time when the crops should be divided. * * * The plaintiff, before bringing this action, demanded the crops mentioned in the complaint of the defendant.</p> <p>The referee found, as conclusions of law, that conceding that the agreement created the relation of “ landlord and tenant” between the plaintiff and defendant, “ the rent which the defendant was to pay was due and demandable on the 1st day of January, 1888, or at least not before the whole of the crop was gathered and ready for delivery, and the advancements when all the crops were gathered and ready for division; that by the division of the corn and delivery to each of his share thereof, the plaintiff lost all lien that he may have had on the share of the defendant therein for advances and rents out of other parts of the crop; that after the division of the corn and delivery to each of his part thereof, the defendant had a right to remove his part thereof from the premises of the plaintiff without paying for advances or the rent out of other parts of the crop, or giving the plaintiff -notice, or gaining his consent to said removal; that until the crops were gathered and in condition to be divided, and up to the time when the rents or advances were due and demandable, the defendant was entitled to the actual possession of the crops, and the plaintiff only to the constructive possession thereof; that at the time of bringing this action, the plaintiff had no cause of action against the defendant for the detention of the property described in the complaint; that the defendant is entitled to the possession of the property described in the complaint; that John W. Bryan recover judgment against the plaintiff E. B. Jordan and his surety, N. G. Holland, for his costs.”</p> <p>The plaintiff filed the following exceptions to the referee's-report:</p> <p>1. That so much of his finding of facts as finds, that “ the time agreed on when the advances made for 1887 should be due and demandable, was when all the crops were gathered and divided ” is erroneous, as there was not sufficient evidence to support such finding.</p> <p>2. That the conclusion of law of the referee which finds, “that the rent which the defendant was to pay the plaintiff was due and demandable on the first day of January, 1888, or,at least not before the whole of the crops were gathered and ready for division, and the advancements when all the crops were gathered and ready for division,” is erroneous.</p> <p>8. That the conclusions of law which find, “ that by the division of the corn and delivery to each of his share thereof, the plaintiff lost all lien that he may have had on the share of the defendant therein, for advances and rents out of other parts of the crop,” are erroneous.</p> <p>4. That the conclusions of law which find, “ that after the division of the corn and the delivery to each of his part thereof, the defendant had a right to remove his part from the premises of the plaintiff, without paying for advances or the rent out of other parts of the crops, or giving the plaintiff notice or gaining his consent to said removal,” are erroneous.</p> <p>5. That the conclusions of law which find, “ that until the crops were gathered and in condition to be divided, and up to the time when the rents or advances were due and demand-able, the defendant was entitled to the actual possession of the crops, and the plaintiff only to the constructive possession thereof,” are erroneous.</p> <p>6. That the conclusions of law which find, “ that at the time of bringing this action, the plaintiff had no cause of action against the defendant for the detention of the property described in the complaint,” are erroneous.</p> <p>7. That the conclusions of law which find, “ that the defendant is entitled to the possession of the property described in the complaint,” are erroneous.</p> <p>8. That the conclusions of law which find, “ that the •defendant John W. Bryan recover judgment against the plaintiff E. B. Jordan and his surety N. G. Holland, for his costs,” are erroneous.</p> <p>His Honor overruled the exceptions of the plaintiff, and gave judgment for the defendant, from which the plaintiff appealed.</p>

This was an action of ejectment, tried before Philips, J., and a jury, at April Term, 1888, of the Superior Court of Moore County. The plaintiff introduced evidence tending to show that one J. B. Cole was the owner of the locus in quo in 1874. He then introduced a deed from said Cole to M. M. Spivey, dated September 16, 1874, conveying the locus in quo to him in fee.

Civil action, tried before Boykin, J., at February Term, 1888, of the Superior Court of Mecelenburg.

<p>Insanity — Hung Jury, Instructions to — Statute of Limitations— Revised Code, eh. 65, § 1; The Code, §§ 148,163.</p> <p>1. In an action of ejectment defendant relied upon adverse possession and the statute of limitations. Plaintiff relied upon the insanity of his ancestor, against whom the land was held adversely, to rebut the plea of the statute. On the question of insanity the Court charged the jury, that if the alleged insane person was so mentally diseased that he was unable to understand and assert his rights, that he did not possess sufficient mental capacity to know' that he was the owner of the land, and that the defendant was in possession thereof asserting title thereto, and that such possession would destroy his rights, then he labored under such disability as would prevent the operation of the statute: Held, that the charge contained nothing of which plaintiff could complain.</p> <p>2. The Judge said to a hung jury, that it was their duty to agree if possible; that no juror, from mere pride of opinion, should refuse to agree, but he was not required to surrender conscientious views founded on evidence; that it was the privilege and duty of each juror to reason with his fellows concerning the facts in the case, with an honest desire to arrive at the truth and a verdict: Held, that such charge was free from objection.</p> <p>3. If land is held adversely to an insane person for such length of time as would bar his recovery if sane, such insane person, or those claiming under him, must commence an action within three years after the disability of insanity is removed, else their right to recover will be barred. Revised Code, ch. 65, § 1; The Code, §§ 148, 163.</p>

Civil action, tried before Philips, J., at May Term, 1888, of Cumberland Superior Court. This was a civil action in the nature of a bill of equity, to close a partnership between the plaintiff A. G. Thornton and the defendant J. A. Lambeth, and.for an account of partnership dealings. The facts appear in the opinion. Defendant appealed.

Civil ACTION, tried before MacRae, /., at Fall Term, 1887, of Rutherfojrd Superior Court. There was a verdict and judgment for'the plaintiff. The-defendant appealed. The facts are fully stated in the opinion.

<p>Injunction— Water- Courses; Individual and Public Rights in— The Code, ch. 56, vol. 2.</p> <p>1. The classification of water-courses., and the respective rights of individuals and the public therein, as defined in State v. Glen, 7 Jones, 321, is approved.</p> <p>2. A stream which has not been used for navigation by boats, but only for rafting timber, turpentine, &c., down the stream, comes within the third class, as defined in State v. Glen.</p> <p>3. Authority over streams, conferred upon County Commissioners by ch. 56, vol. 2, The Code, while it stands and is unimpeached by allegations of fraud or other illegal conduct, is a bar to the remedy by injunction. Therefore, a defendant will not be restrained • from erecting a dam across a stream, when he is proceeding under the permit and direction of the Commissioners.</p>

Civil- ACTION, for the recovery of land, tried before Arm-Jitld, J., at Spring Term, 1889, of the Superior Court of Burke County.

This was a civil ACTION, tried, upon complaint, answer and demurrer to the answer, before Philips, J., at the February Term, 1889, of Iredell Superior Court. , The facts are, that the plaintiff, as trustee, under a deed in trust, executed by Charles L. Summers and registered in Iredell County on the 4th of November, 1886, sold,, for cash, certain lands, and that the defendant became the purchaser in the sum of six hundred and ten dollars.

<p>Cart-ways — Apt Time — The Code, § 2056.</p> <p>1. Section 2056 of The Code is in derogation of the rights of land-owners, and must be strictly construed.</p> <p>2. A petition for a cart-way was filed before the Board of Supervisors, the prayer of the petition was granted, and respondent appealed to the Commissioners and thence to the Superior Court. After the jury was impaneled to try the issues raised between the petitioner and respondent, a motion was made for the first time to dismiss the petition for the want of proper allegations: Held, that the motion was not made in apt time, and it was error to grant it.</p> <p>3. A cart-way will not be granted, under The Code, § 2056, as a mere matter of convenience, but only when it is necessary, reasonable and just that the petitioner should have it.</p> <p>4. The form of the petition, and proper methods of procedure, under The Code, §2056, pointed out.</p>

Civil, action, tried before Brown, J., at February Term, 1889, of Iredell Superior Court.

<p>Judgments — Exceptions to Evidence and to Report of Referee— The Code, § 422 — Joinder of Uninterested Party as Plaintiff— Statute of Limitations — Creditor’s Bill; when Heirs of Decedent Necessary Parties.</p> <p>1. Where a judgment absolute is rendered against executors, fixing them with assets, and they pay it, their personal representatives cannot . afterwards recover the amount thus paid out of the estate of their testator.</p> <p>2. An exception to the admission of evidence by a referee, after objection, which is not specific, but is vague and indefinite in form, will not be considered.</p> <p>3. Where the report of a refei’ee designates certain claims which he finds to be valid against the defendant, as claims of “officers of the Court”: Held, that such designation sufficiently points out the Clerk to whom payment is to be made.</p> <p>4. Under The Code, § 422, a referee has power to admit new parties to an action.</p> <p>5. It is wholly immaterial that an uninterested party is united with the true owner as plaintiff, in an action to recover a debt, because a reception of payment by either plaintiff would be with.the assent of the other.</p> <p>6. That the referee has not reported all the evidence taken during the trial before him is not a ground of exception. If all the evidence is not sent up, the remedy of the prejudiced party is, by application to the Judge for an order directing the referee to send up that which has been omitted.</p> <p>'7. The issue of execution every three years on a judgment against executors will repel the bar of the statute of limitations.</p> <p>8. Where, in a creditor’s bill against the personal representative, it is sought to have the lands of decedent sold for the satisfaction of the debts proven, the real representatives of decedent must be made parties, before any judgment subjecting the real estate can be entered.</p>

Civil action, tried before Clark, J., at November Term, 1887, of Iredell Superior Court. There was judgment overruling plaintiffs’ exceptions to the report of a referee and confirming the report, whereupon, the plaintiffs appealed. The plaintiffs brought the action for the settlement of the partnership affairs of the firm of Gaither & Colvert, composed of the testator of plaintiffs, A. F. Gaither, and the defendants Wm.

<p>Civil action, tried before Merrimon, J., and a jury, at the January Term, 1887, of the Superior Court of Columbus County.</p> <p>The facts appear in the opinion.</p>

This is an appeal, by defendant, from a judgment of MacRae, J., rendered at May Term, 1886, of the Superior 'Court of Iredell County, modifying judgments, theretofore rendered, and authorizing execution to issue. The facts sufficiently appear in the opinion.

Civil ACTION, tried before Shepherd, J., and a jury, at April Term, 1888, of New HaNOVER. Superior Court. The questions to be decided are sufficiently presented by the case stated on appeal, and the following is a copy of so much thereof as need be reported here: “In the month of October, 1881, the defendants became indebted to the plaintiffs in the sum of thirty-two hundred and six dollars and fifty-three cents ($3,206.53) for goods sold and delivered.

This action was commenced in the Superior Court of New HaNoyer County, to have the defendant’s dower allotted to her in the land mentioned in the pleadings, and heard, upon appeal from the Clerk, at Spring Term, 1888, before Shepherd, J., upon the following facts, found as a special verdict: “ William Tucker, the husband of the defendant, died seized and possessed of the propertj^ in controversy, leaving the defendant as his widow, and the plaintiff as his only heir-at-law,…

Civil action, for recovery of laud, tried before Shepherd,. J., at Spring Term, 1888, of the Superior Court of Carteret.

Civil actiob, tried before Shepherd, J., at Fall Term, 1888, of Obslow ¡Superior Court.

Civil ACTION, tried before Shipp, J., at January Term, 1889, of the Superior Court of New Hanover County.

Civil action, tried before Boykin, J., December Term, 1888, of DupliN Superior Court. The parties waiviDg a trial by jury, agreed to the following facts, with the understanding that the Court should render judgment thereon according to his opinion of the law arising therefrom: 1. Norris F. Frederick made mortgage deed for the lands in dispute on April 18, 1873, for $596. 2.

Civil action, tried before Clark, J., at Spring Term, 1889, of BladeN Superior Court. The plaintiff is the administrator of J. McK. Mulford, and brought this action against W. J. Sutton and Jno. A. McDowell, to recover the money due on a promissory note,, whereof the following is a copy: “$1,000.

Civil ACTION, tried at the February Term, 1888,'of the Superior Court of MadisoN County, before MacRae, J. The plaintiff alleged, in substance, and offered testimony tending to prove: 1. That she was married to one J. M. Giles before the Constitution of 1868 was adopted. 2.

<p>Petition to rehear and reverse the decision of this case made at October Term, 1884. (See 91 N. 0., 436.)</p>

<p>Civil actioN, tried before Connor, J, at October Term, 1887, of Brunswick Superior Court.</p> <p>Judgment for plaintiff, and defendant appealed.</p> <p>The facts appear in the opinion.</p>

<p>Cherokee Lands — Legislative Control over Public Lands— Grants, Void and Voidable — Construction of Statues not based on Policy — The Code, §§ 2346, 2347.</p> <p>1. A grant of lands within the Cherokee Indian boundary is void.</p> <p>2. It is the province of the legislative department to prescribe when, how, and for what purpose the lands of the State may be granted. In the absence of such legislation neither the Governor, Secretary of State nor any agency can pass title to State lands by grant or otherwise.</p> <p>3. A grant of lands not subject to grant is void and can be attacked collaterally. If the land granted is subject to grant, but the grant itself was obtained by fraud, or there were irregularities attending its issue, it cannot be attacked collaterally.</p> <p>4. What is called the policy of the Legislature is too uncertain a ground upon which to found the interpretation of statutes, especially when the statutes are clear and absolute in their terms and expressed purpose.</p> <p>5. The treaty of Holston between the United States and the Cherokee Indians did not have the effect to repeal or modify the entry laws of this State.</p>

<p> Petition to Rehear. </p> <p>1. The statute (Acts 1794,1 Pot. Rev., ch. 423)amendatory of the statute (Acts 1784, 1 Pot. Rev., ch. 202), rendered the lands acquired by this State by the treaty of Holston from the Cherokee Indians, subject' to entry and grant.</p> <p>2. The judgment entered in this case at the September Term, 1888, of this Court, is set aside, and a new trial is ordered, because of the act of 1791 (Haywood’s Manual, p. 188). which was not called to the attention of the Court when the case was first argued.</p>

Civil ACTION, tried at December Term, 1888, of the Superior Court of.BuNCOMBE County, before Merrimon, J. The following is a copy of the material part of the case settled on appeal.: On the 11th day of December, 1882, R. R. Jones, the intestate of the defendant J. R. Jones, executed his promissory note, under seal, to John S. Rice for three hundred dollars, to be due on the first day of August, 1883.

This was a civil action, tried at the June Term, 1888, of the Superior Court of Buncombe County, before Boykin, J. The complaint is as follows: “ The plaintiff, complaining of the defendant, alleges: “ 1. That the defendant is a municipal corporation, created by the laws of the State of North Carolina. “ 2.

This is a PETITION to obtain a license to sell land to make assets to pay debts of a testator. The pleadings raised issues of fact, and the proceedings were transferred to the Court in term and heard before MacRae, J., at Fall Term, 1888, of the Superior Court of Macon.

This was a civil action, tried before Philips, J., and a jury, at the Fall Term, 1887, of the Superior Court of Onslow County. The action was brought to recover damage for the unlawful conversion by the defendant of “a steam'engine, boiler .and fixtures; also a cotton-gin, condenser, cotton-press, with -fixtures,” &c., alleged to be the property of the plaintiff.

<p>This was a civil action, tried before Merrimon, J., and a jury, on appeal from a Justice’s judgment, at June Term, 1888, of the Superior Court of Durham County.</p> <p>The plaintiff sued for the 'recovery of one hundred and eight dollars and thirty-three cents for rent of a certain brick prize-room for the months of November and December, 1887. The summons was issued on the 13th day of March, 1888, and tried upon a removal by affidavit from one Justice to-another, on the 15th day of March, 1888. The defendant pleaded the “general issue and counterclaims amounting to-$89.” After evidence by the plaintiff, tending to establish his debt, the ‘defendant offered to introduce the following evidence: That on the 13th day of March, 1888, the plaintiff had sued out .another summons against these defendants,, in which he claimed the rent due for the same prize-room for the months of January, February, and up .to the 13th day of March ; that there was judgment for the plaintiff in that action against the defendants, which judgment was satisfied in full; that that action was tried, judgment rendered and judgment satisfied before the present suit was tried. It was proven by the plaintiff, and admitted by the defendants, that the rent was payable monthly, in advance. Upon objection by the plaintiff, his Honor held that the evidence could not be received under any plea pleaded by the defendants, and excluded the evidence. Exception by defendants. Defendants moved to be allowed to amend their answer. His Honor refused to allow the amendment. ‘Defendants excepted. There was verdict and judgment against the defendants.</p>

This is an appeal by the defendant from a judgment of Qilmer, J., rendered at February Term, 1888, of the Superior Court of Chatham County. The plaintiff alleged that he was the owner of an engine and saw-mill described in the complaint, which were in the possession of the defendants, Tillman and Barber, and wrongfully detained by them.

, rendered at August Term, 1887, of Guilford Superior Court. The plaintiff brought this action to recover possession of land specified in the complaint.

Special proceedings for dower, heard before Graves, J., upon appeal from the Clerk, at April Term, 1889, of the Superior Court of Wake. William P. Askew, residing in Wake County, died in the month of November,' 1887, leaving a widow, Harriet J Askew, and numerous children, and seized and possessed of a large estate, real and personal, all of which, in his will, he devises and bequeaths to the said Harriet J., in absolute property.

Civtl ACTrox, tried before flmic-K J., at February Term, 1889, of Iredell Superior Court. The plaintiffs were Anna Fiaum and her husband, the defendants the members composing the mercantile firm of Wallace Brothers.

Civil ACTION, tried before Boykin, J., at August Term, 1888, of Buncombe Superior Court. The plaintiffs in this action were J. A. Conant and his wife Genevieve R. Conant; the defendants were T. I. Van Gilder and his wife, W. W. Barnard, trustee under two deeds of trust made to him by said Van Gilder and his wife, and the cestui que trust named in said deeds of trust to Barnard.

<p>Civil actioN, tried before Merrimon, J., at February Term, 1889, of the Superior. Court of RICHMOND.</p>

Assault with INTENT to commit Rape, tried before Mer-rimort, J., at Spring Term, 1889, of the Superior Court of Moore. The indictment charges that the defendant, “ with force and arms, at and in,” &c., “ on,” Upon the plea of not guilty to this indictment, on the trial, there was a verdict of guilty.

CRIMINAL ACTION, tried before Philips, J., at 'December Term, 1888, of Davidson Superior Court. The bill of indictment is set out in the opinion of the Court.

This was an INDICTMENT for false pretence, tried before Philips, J., and a jury, at Fall Term, 1888, of StaNLY Superior Court. The pretence charged was, “that a certain bay horse, which he, the said J. M. Wilkerson (the defendant), then and there had, was sound and not lame.

Indictment for larcenjq tried before Philips, J, at Spring-Term, 1889, of the Superior Court of Yadkin. The defendant is charged with the larceny of “ one due-bill of the value of fifty-four cents-, of the goods, chattels and moneys,” &c. The indictment contains but a single count, and concludes “ against the form of the statute in such case made and provided, and against the peace and dignity of the State.” The defendant pleaded not guilty.

<p>IndictMENt, for selling as a drummer, tried before Mac-Rae, J., at Spring Term, 1887, of the Superior Court of Watauga.</p> <p>The defendant is charged, in the indictment, with having, as a “ drummer,” from another State, sold, and attempted to-sell, to the merchants named therein, in the county specified, in this State, at the instance, and for the benefit of merchants named, in another State, goods, wares and merchandise, by wholesale and by sample, as specified, without having obtained a license so to do from the Treasurer of this State, in violation of the statute (Acts 1887, ch. 135, §25). He pleaded not guilty, and, on the trial, the jury rendered a special verdict, in substance, and to the effect, that he had sold goods, wares and merchandise as so charged. The Court being of the opinion, upon the facts found, that the defendant was guilty, directed that verdict be entered upon the special verdict, which was done, and, thereupon, judgment was entered against the defendant, and he, having excepted, appealed to this Court.</p>

This was a MOTION, made in this Court by the Attorney General, to dismiss an appeal in forma pauperis, granted by Clark, J., at Fall Term. 1888, of Yancky Superior ('ourt. The facts are stated in the opinion.

MotioN, by the Attorney General in this Court, to dismiss the appeal. The defendant was allowed to appeal in forma pauperis by an order made by Clark, J., at the Fall Term, 1888, of Yakcey Superior Court.

<p>INDICTMENT, under The Code, § 1120, tried before Armfield, J., at Spring Term, 1889, of Buree Superior Court. The defendant was arrested upon a criminal warrant, and convicted before a Justice of the Peace of the offence of having unlawfully and wilfully entered upon the land of the prosecutrix, after having been forbidden by her so to do, and without a license, in violation of the statute (The Code, § 1120). Thereupon, he appealed to the Superior Court, and there pleaded formally not guilty. There was a verdict' of guilty, and judgment thereupon, against him, and he having excepted, appealed to this Court.</p>

This was a CRIMINAL action, tried at the Spring Term, 1889, of the Superior Court of Lincoln County, before Clark, J. The indictment was found at the Spring Term, 1888.

<p>Removal of Casen to the Criminal Court of Mecklenburg — Const., Art. 4, §§ 2 and 30 — The Code, §§ 196, 198, 1353 — Comments of Counsel — Evidence■—■Variance.</p> <p>1. Under the Constitution, Art. 4, §§ 2 and 30, the Legislature can establish Criminal Courts, and under these sections the Legislature has, by ch. 63, Laws 1885, established a Criminal Court for Mecklen-burg County, vested with all the criminal jurisdiction theretofore possessed by the Superior Court of said county.</p> <p>3. Under ch. 63, Laws 1885, and The Code, §§ 196, 198, the Criminal Court of Mecklenburg has jurisdiction to try an indictment for murder removed into that Court from an adjacent county.</p> <p>3. In the Superior Court of Union it was ordered that this case be removed to the Griminal Court of Mecklenburg for trial, and that the Clerk of Union Superior Court certify the record to the Supe- ' rior Court of Mecklenburg, “ to the end that it may be there docketed, and from there certified to the Criminal Court,” &c., for trial. A certified copy of the record was sent to the Superior Court of Mecklenburg, the Clerk docketed it, and then transmitted the same certified copy to the Clerk of the Criminal Court, attaching to it a certificate that it had been forwarded to him from the Clerk of Union: Held, that the record being duly certified. it was not material through how many hands it passed in transitu, and the Criminal Court had jurisdiction to try the case-So much of the order of removal as required the docketing of the case in the Superior Court of Mecklenburg was surplusage.</p> <p>4. An indictment for murder charged that the killing was done with a piece of plank, and a witness for the State was allowed to testify (after objection) that he saw deceased wearing a brown wool hat at 4 P. M. before the night of the killing, and on the morning after the killing he found strands of fine brown wool upon a stick which was picked up at the place of the homicide (and with which there was evidence tending to prove the' killing was done): Held, that the testimony was properly admitted.</p> <p>5. If an indictment for murder charge thatthp killing was done with a piece of plank, and the proof is that it was done with a piece of iron, the variance is not necessarily fatal. The rule on this subject laid down in State v. Gould, 90 N. C., 658, is correct.</p> <p>6. The Code, §1353, does not forbid a prosecuting attorney to make • such comments upon the testimony as would have been legitimate before the passage of the act. That section enlarges the privileges of the prisoner, but does not abridge the rights of the State’s officers.</p>

<p>Slander of Women, under § 1113 of The Code — Evidence, when Admissible — Ex-purte Testimony.</p> <p>1. In an indictment for slandering an innocent woman, under § 1113 of The Code, the defendant cannot show, on the plea of not guilty, a prevalent report of sexual intimacy between the prosecutrix and one C., the making of a charge of such intimacy being the defamatory matter specified in the indictment, to disprove its wanton and malicious utterance, though he might make such proof, after verdict of guilty, to the Court, in extenuation, &c.</p> <p>2. On such trial, it appearing on cross-examination of the prosecutrix that, the morning after the alleged criminal intercourse with 0., she had, before hearing the report from her aunt, written to O. and sent the letter to him ten miles away by a messenger, a further question by the defendant, whether her aunt told her from whom she got the report, Held, inadmissible, in the absence of a suggestion as to the purpose for which the inquiry was made.</p> <p>3. Whether a witness is qualified to testify as an expert, is a question for the Court, and not reviewable; and the value of his testimony as such is for the juiy to determine. Therefore, when a physician, upon evidence of his study and practice of his profession, was admitted as an expert to testify, as the result of his examination of the sexual organs of a woman, that she had never copulated with a man, an objection to the testimony, based upon the witness’ inexperience as to the effect of such intercourse upon the organs of the female, could not be sustained.</p> <p>4. A woman who has never had actual sexual intercourse with anyone is an innocent woman, within the meaning of § 1113 of The Code, even though she and a man were surprised in each other’s embrace, about to commit the act of copulation, but before it took place.</p>

The prisoner was indicted for the murder of one Emilis 0. Buchanan, in the county of Jackson, and the cause, upon motion of the prisoner, was removed, for trial, to the Superior' Court of the county of Macon, and tried before Boykin,. J., at Fall Term, 1888, of said Court. The following is the statement ol the case on appeal: “ It was admitted by the prisoner that Buchanan’s death resulted from a pistol shot wound, inflicted by him.

CRIMINAL action, tried before Merrimon, J., at December Term, 1888, of Bunoombe Superior Court.

<p>Bastaedy PROCEEDING, tried before Merrimon, J, at January (criminal) Term, 1889, of Cumberland Superior Court.</p> <p>The defendant appealed. The facts are stated in the opinion.</p>

CRIMINAL ACTION, tried before Philips, J., at May Term,. 1888, of Robeson Superior Court.

CeimiNal ACTION, tried before Philip*, J., at Spring Term, 1888, of RiciimoND Superior Court.

False pretence, tried before Bynum, J., at Spring Term, 1888, of the Superior Court of Guilford. The defendant is indicted for obtaining money by false pretence in violation of the statute (The Code, § 1625). He pleaded not guilty, and on the trial the jury rendered a special verdict, finding facts, but omitting to find that he had the intent either to defraud or not to defraud. The Court held that upon the facts found, he was not guilty.

INDICTMENT, for going upon the land of another, after being forbidden, tried before Armfield, J., at January Term, 1889, of the Superior Court of Pitt. The defendant was arrested upon a criminal warrant,, issued by a Justice of the Peace, charging him with going upon the land of another without a license, having first been forbidden to do so, in violation of the statute (The Code, § 1120).

<p>Motion to dismiss an appeal in'an indictment for larceny, tried at February Term, 1889, of Chatham Superior Court.</p>

INDICTMENT, for selling intoxicating liquor to a minor, tried before MacBae, J., at Fall Term, 1888, of the Superior Court of Beaufort. The defendant was indicted under §1077 of The Code; The indictment contained two counts, one for selling, and the other for giving, intoxicating drinks and liquors to one Fred. Gardner, who was under twenty-one years of age and unmarried. The evidence was, in substance, that Fred.

Indictment for selling liquors, tobacco, &c , within one-half mile of the fair grounds of the Roanoke and Tar River Agricultural Society, contrary to law, tried before Graves,,J.y at Spring Term, 1888, of the Superior Court of Halifax County.

INDICTMENT for burglary, tried before MacRae, J., at January Term, 1889, of the Superior Court of NorthamptoN County. The indictment contains two counts — the first charging the burglarious entering, with intent to kill and murder, and the second with intent to steal.

<p>Larceny, Not Necessary that the Talcing be Secretly .Done — Property laid in Bailee — Indictment.</p> <p>1. While secrecy is the usual evidence of a felonious intent when one takes the goods of another, it is by no means the only evidence of such intent.</p> <p>2. Prosecutor dropped some money and the prisoner caught it up. Prosecutor asked for the money, whereupon prisoner said: “Oh, hell! You ain’t going to get this money.” Prosecutor started toward prisoner and prisoner put his hand to his breast and threatened to kill prosecutor if he followed him: Held, that it was proper to instruct the jury, that it was for them to say whether the taking of the money was with a felonious intent or not.</p> <p>3. The ownership of property stolen can be charged in an indictment for larceny as being in a bailee.</p> <p>4. A bill of indictment charging A with larceny, and containing a count against B for aiding, &c., will be sustained, it not being shown how A was prejudiced thereby.</p>

<p>CRIMINAL ACTION, tried before MacRae, J., at January-Term, 1889, of NorthamptoN Superior Court.</p> <p>The defendant was charged in the indictment with the larceny of some pork, the property of James I. Deloatch, and there was a second count for receiving the same.</p> <p>Defendant aslced for the following special instructions, which were refused :</p> <p>“1. The State having proved by the prosecutor, James L Deloatch, that the pork stolen was the property of Polly Parks, the defendant cannot be found guilty.</p> <p>“ 2. The evidence being entirely circumstantial, it must be as strong and conclusive as if one credible eye-witness had testified to the fact.”</p> <p>On the question of circumstantial evidence, the Court instructed the jury, in substance, that the State must prove each fact or circumstance beyond a reasonable doubt, and so as to leave no reasonable hypothesis consistent with the innocence of the accused; “ in other words, it must satisfy you fully of defendant’s guilt,” and if they were so satisfied they should' respond as their verdict: “ Guilty as charged in the second count of the bill,” otherwise to return a verdict of “ not guilty.”</p> <p>There was a general verdict of guilty, and defendant appealed, assigning as errors — exception having been taken in apt time — the refusal to give the instructions asked, errors in the charge, and that judgment was entered upon the general verdict, which failed to designate on which count the defendant was guilty.</p> <p>The other facts necessary to an understanding of the decision of the Court are stated in the opinion.</p>

CRIMINAL action, tried before Avery, J., at Spring Term, 1888, of Nash Superior Court.

<p>Where no exceptions are made below, and no error is apparent upon the record, the judgment will be affirmed.</p>