Volume 104 — North Carolina Reports

Assignment of Error— Wills — Probate—Devisavit vel non— Parties. This was an issue devísavü vel non, tried before Avery, J., at Spring Term, 1887, of Tyrrell Superior Court.

Executor and Administrator — “Lawful Representatives” — Ven-, dor and Vendee — Mortgage—'Statute Limitations — Powers This is a civil ACTION, which was tried by MacRae, J., a jury trial being waived, at Pall Term, 1888, of Perquim-ANS Superior Court The following facts were agreed upon: On the 20th day of March, 1871, George W. Brooks and David Jackson entered into an agreement, under seal, for the sale of the tract of land in the complaint mentioned, by the former to the…

<p>Contract— Consideration — Evidence, Irrelevant.</p> <p>Civil action, tried before MacRae, J., at Fall Term, 1888, of Chowan Superior Court.</p> <p>On the 2d day of August, 1886, the plaintiffs on the one part and the defendants on the other part, entered into a written contract in which it was provided that the defendants sold to plaintiffs “ the Skinner’s Point Fishery and the lands attached belonging thereto, and bought of Caroline M. Wood by Wilson A. Mizell, particularly described in her •deed; also all the fishing material used by Wilson and Mizell on said fishery, including that bought of C. M. Wood, and such as they may have added thereto, excepting the crops growing on said lands; three coils of rope bouaht by Wilson & Mizell of J. S. Johnson & Co ; the household and kitchen furniture which they carried from Bertie County since the purchase from Mrs. Wood ; the salt, the driers and tubs and the kettles and tarring fixtures, at the price of $6,100. They further agree to execute deeds for the same, Jones & Skinner to pay $1,250 cash, and to execute equal notes for the balance, secured by mortgage on the same property, and payable June 1, 1887, 1888 and 1889, with interest from date.” There were other stipulations not material to this controversy.</p> <p>In pursuance of this contract, Wilson & Mizell conveyed the property, and Jones and Skinner made the cash payment and executed the notes for the balance of the purchase money and the deed in trust to secure them.</p> <p>The plaintiffs alleged that, when they took possession of the fishery and premises connected therewith, a large portion of the fishing material which the defendants had contracted to sell to them was missing and never was supplied, although they had notified defendants of the shortage and demanded that it should be replaced, and brought this action to recover damages for such alleged breach of the contract.</p> <p>The defendants denied that there was any breach of the contract on their part, and alleged that they had delivered all the property sold by them, except a small quantity of old rope, &c., of inconsiderable value, and by way of counterclaim demanded judgment for the balance on the purchase notes, after deducting certain credits arising from the sale of the property under the deed in trust.</p> <p>To this, plaintiffs replied that they owed nothing on account of the said notes; that in October, 1887, the property which had been received by them from the defendants, and which was embraced in the deed in trust, was put up for sale to satisfy the balance due; that at the sale it was agreed between the parties that the defendants would accept the amount for which the property would sell in full pay' ment and discharge of the entire indebtedness, and that acting upon the faith of this agreement the plaintiffs stood by and permitted the defendants to purchase the property at a much less amount than they could-have bid for it; that regarding their indebtedness to be thus settled they demanded a surrender of their notes. This agreement, it was alleged, was long after the plaintiffs had given notice and made the demand on account of the failure to deliver the property for which this action was brought.</p> <p>The defendants objected, as upon demurrer ore terms to the reply to the counter-claim, upon the ground that the agreement therein alleged to have been made by them was without consideration. This objection was not sustained, and defendants excepted.</p> <p>The following issues were submitted to the jury:</p> <p>1. “ Did the defendants fail to deliver to the plaintiffs any of the material which had been sold by defendants to plaintiffs?”</p> <p>2. “ What damages, if any, have plaintiffs sustained by reason of said failure to deliver ? ”</p> <p>3. “ Are the plaintiffs indebted to defendants, as charged in the counter-claim, if so, in what, sum ? ”</p> <p>Much testimony was offered on the first and second issues by each party; that for the plaintiffs tending to prove the failure to deliver the material used by defendants at .the fishery, as described in the contract and deed, and the carrying away of a valuable portion of the same by defendants after the execution of the contract and deed ; and that for defendants tending to prove that all of the material so conveyed was delivered, except a small portion of inconsiderable value, for which the defendants admitted their liability. Upon this question, the defendant Mizell testified that only a small quantity of rope, fit only for “junk,” was carried off; that in the making of the contract between plaintiffs and defendants, he did the bargaining; that he told Mr. Skinner that defendants had put a good deal of new material in there, and that plaintiffs would have little to buy.</p> <p>The plaintiff Skinner was recalled in reply, and testified : “ That Mizell recommended the material highly ; he did not say what kind it was; he said it was in good order.”</p> <p>The defendants’ counsel objected to this testimony being received on any other ground than as going to the credibility of defendant Mizell.</p> <p>The Court admitted the testimony without specially instructing the jury that it was only to be considered as it affected the credibility of witness Mizell. Defendants excepted.</p> <p>Upon the third issue, Mr. Jones, one of the plaintiffs, testified: “That he was present at the sale of the property under the deed of trust made by plaintiffs to Mr. Pruden to secure the defendants; Mizell and Pruden were talking; Mizell asked witness, ‘how about the sale, who was going to do the bidding?’ Witness said, ‘I don’t care about the bidding, we want it to bring what we owe you;’ Mizell said, ‘how much is it?’ Mr. Pruden said, ‘between $5,100 and $5,200, you had better run it up to $5,500;’ Mizel said, ‘I will do the bidding, I will run the property up to the amount of our claims, if it brings any more you will get the benefit of it;’ witness did not bid; witness had an outside bidder, who would have bid $5,000, and witness would have run it up for him, but for what Mizell said.</p> <p>“When Mizell asked witness how about the sale, and who-would do the bidding, witness told him about the gentleman who would bid $5,000 for it; it was to wipe out all of the indebtedness of plaiuiiffs to defendants; plaintiffs had not then brought this suit; Mizell did not say anything about its settling plaintiffs’ claim against defendants; Mizell bid $4,400 for the property.”</p> <p>Defendant Mizell testified: “ That defendants were to bid in the fishery unless it went beyond the debt due to them, and they were to let Jones take it if they could sell the apparatus to Winslow, who wanted to buy it; witness bid in the property at $4,400, and left it with Mr. Pruden to arrange with Winslow, but Winslow declined to take it; the property consisted of the land and fishery and fishing material; Jones wanted the land and fishery; there was no agreement that day with Jones; he told witness afterwards that Mr. Pruden had assured him that all the defendants wanted was their money, and Jones wanted to know if the ■notes had been cancelled; witness refer-red him to Mr. Pruden; don’t recollect saying that if the property brought more than the debt he would have the benefit of it, and if not, that witness would take the property and cancel the debt.”</p> <p>Mr. Pruden testified for the defendants: “ That the conversation between Jones and Mizell' was in some respects like both stated it; both had conferred freely with witness before the sale; on the day of sale Jones said to witness, ‘how about bidding?’ Witness said, ‘Mizell only wants the money, whatever bid he makes; if it is below7 your debt, he will re-sell the property, the land to Jones and the material to some one else, and the plaintiff shall have the benefit of any re-sale;’ Jones said something about the Harding debt, and Harding said he and Jones would arrange that; Jones was to have the land at a certain price, probably $2,000, and the material to be sold to any one he could sell to, and Jones was to have the benefit of any re-sale; if there was no re-sale the notes were to be cancelled; there was a re-sale of property to Mr. Rea for $5,000, witness thinks; Jones made demand on witness for his notes after this suit was begun; he told witness about the shortage.”</p> <p>Mr. Jones, being examined for plaintiff, in reply, testified, among other things not bearing upon this issue, that he was authorized to bid only $5,000, and could not have bid anything for himself</p> <p>There was no exception to the charge, except upon the 3d issue, which was as follows: “The defendants say that they are entitled to your verdict for the balance on the notes given by the plaintiffs for the fishery, &c., less the sum for which the property sold.”</p> <p>On the other hand, the plaintiffs say: “That defendants agreed that if they bought in the property for less than the debt they would cancel the notes.”</p> <p>“ If this agreement was made, and if there was no consideration at all for it, it will amount to nothing; but if such a promise and agreement was made, in consideration that plaintiffs should not bid for themselves, or for any one else, at the sale, there was a consideration to support it.”</p> <p>To this portion of the charge defendants excepted.</p> <p>The jury responded in favor of the plaintiffs, and there was judgment for them, from which defendants appealed.</p>

Reformation — Contracts, Executed and Executory — Rescission— Specific Performance — Statute of Frauds. This was a civil actioN which was tried before Boykin, J, at Spring Term, 1889, of the Superior Court of Pasquo-tank County. The complaint was as follows : 1.

Contract — Sale—Vendor and Vendee — Common Carrier — Innocent Parchasen — Bailment.. Civil action, tried before Boykin, J., at Bpring Term, 1889, of HERTFORD Superior ('ourt. The National Buggy Company shipped over plaintiff’s line four buggies, including the one in controversy, to Har-rellsville, N. C., to be delivered to one W. J. Lassiter, upon his surrendering the bill of lading therefor.

Administration — Distribution—Statute, Limitations. This is a civil action, which was tried before Boykin, J., at Spring Term, 1889, of the Superior Court of Pasquotank County. The issues submitted, and findings thereon, were as follows : 1. Did B Cartwright, administrator, fully administer the assets of the estate of his testator? Answer: No. 2. If not, what is the amount of the balance due and owing by him?

Pleading — Trial by Jury — Homestead—Vendor’s Lien — Judgment by Default. Civil action, tried before Montgomery, J., at Eall Term, 1888, of Edgecombe Superior Court. The action begun on July 13, 1888, is prosecuted against the defendants Carr and Mayo, the former maker, and the latter endorser, of a promissory note, in these words: $2,889.38. Whitaker's, N. C., November 1, 1886.

Agency — -Revocation. This was a civil ACTION, tried before MacRae, J., at Spring Term, 1889, of the Superior Court of Bertie County. The plaintiff declared— 1. Upon a special contract to the effect that he was employed by the defendant to sell the timber upon two tracts of land — the “Piney Woods tract and the Willow Branch farm ” — and that if he sold it for $25,000 the defendant was to pay him $500 for his services. 2.

Contract — Statute Frauds — Evidence. This was a civil actioN tried before MacRae, 'J., at Spring Term, 1889, of Edgecombe Superior Court.

Parties — Tax Collector — Official Bonds — Fence Law. This is a civil action', tried upon complaint and demurrer, before MacRae, J, at Spring Term, 1889, of Edgecombe Superior Court.

<p>Penalty — Common Carrier — “Regular Depot or Station.”</p> <p>This is a civiu aotiok, which was tried before MacRae, J., at March Term, 1889, of Halifax Superior Court.</p> <p>The action is brought to recover divers penalties which, the plaintiff alleges, the defendant Railroad Company incurred by the refusal of its agent to receive certain car-loads of lumber at one of its regular stations on its road, called “ Spring Hill,” for transportation, &c., in violation of the statute. (The Code, § 1964).</p> <p>On the trial, the Court, among numerous issues, submitted one' in these words:</p> <p>“ 1- Was Spring Hill a regular depot of defendant on its branch road from Halifax to Scotland Neck, from the 29th of October to the 5th of November, 1888, inclusive ? ”</p> <p>The substance of the evidence produced on the trial, bearing upon this issue, was as follows:</p> <p>The plaintiff introduced J. H. Darden, who testified, among other things: “ When the train is running from Halifax to Scotland Neck, after leaving Tillery, it stops every day at Spring Hill; on some occasions it stops at Tillery’s Turnout, a mile this side of Spring Hill. On return from Scotland Neck it always stops at Spring Hill; the announcement, ‘ Spring Hill! ’ is made on the train going and coming. It is now a ‘ prepay ’ station. Some time ago they had an agent there, and it was a regular station. Plaintiff has had a saw-mill at Spring Hill since May, 1887; defendant has been taking his lumber all to the train at Spring Hill Turnout station. They had an agent, J. E. Brinkley; none that I am aware of since he left. Local Freight Tariff No. 2, was pasted up in the depot at Spring Hill — that is, in the railroad office, where the agen*, was when Mr. Brinkley was agent, wlmre the railroad business was transacted. There are a half-dozen in there now.”</p> <p>The plaintiff then introduced in evidence said Tariff No. 2.</p> <p>“On 30th October, 1888, I tendered two cars of lumber for shipment to Taliaferro & Co., Richmond, to Captain Has-sardshort, the conductor on the Scotland Neck branch of the Wilmington and Weldon Railroad at Spring Hill — destination, one to Richmond, one to Elba Station. The cars I .tendered were on side-track at Spring Hill, loaded and ready for transportation. Capt. Hassardsbort didn’t receive them. They had been in the habit of taking plaintiff’s lumber at Spring Hill, never anywhere else; been in the habit of tendering it to the conductor. The paper was in S. P. Brinkley & Son’s otiice, where they kept railroad office. I took it down to use here. Don’t know, can’t speak positively, whether there has been a railroad office there for several months past. Mr. Brinkley wras the agent there, and resigned; don’t know exact date. I seldom travel over the railroad; don’t know that all the dumber shipped at Spring Hill is billed from Tillery. The room where I got the paper I don’t suppose is. the railroad office now; it was not in October, 1888; there was no agent there. The old books are there now, and notices are up on the wall now. I took it down to refresh your memory, and that of all persons interested. It is a prepay station now; it -was a regular station sometime ago. When we were shipping from there — when Mr. Brinkley was there — we did not prepay, and did not afterwards. When Mr. Brinkley was there, and it was a regular station, and goods were shipped to a party, Brinkley collected freight there; since then it is customary in ordering goods to prepay freight. Don’t know whether the freight charges are the same from Spring Hill as from Tillery ; don’t buy tickets at Spring Hill; no warehouse of company there, nothing but a platform, and I don’t know that the defendant has any employee there to look after freight. No telegraph office. Bills of lading are given at Tillery and Scotland Neck. At Spring Hill, the bills of lading are given by conductor on train. Don’t know that the lumber was shipped as from Tillery station; I always billed them as shipped at Spring Hill. Don’t remember what freight I have shipped, and got bill of lading for, except cotton ; don’t know that they take up cotton at any cross-roads on railroad.”</p> <p>Defendant introduced A. S. Hassardshort, who testified, among other things, as follows : “ Am conductor on Scotland Neck branch W. & W. R. R, Co., and was from 29th October to and including 5th November, 1888. No tickets were sold at Spring Hill; no agent, no warehouse nor telegraph office. I think Mr. Brinkley resigned in December, 1886, and there had been no agent there for, about two years. I remember Darden offering me cars at the time of the block in Richmond. They give me bill there, and I take it to nearest station and have it billed by agent. It is billed, not at Spring Hill, but at Tillery. I believe that is the only way I ever received it at Spring Hill. The agent bills it at Til-lery.”</p> <p>Cross-examined. — “Have book for train as to passengers. It is put down what I shall charge passengers to Spring Hill, 60 and 50 cents; to Scotland Neck, 75 and 60 cents; carry prepaid freight to Spring Hill. If not prepaid, carry it to Scotland Neck. We take cotton and give bill of lading, for it on the road, just as I do at Walter Shields’ farm, where they often have cotton to ship.”</p> <p>J. R. Kenly, Assistant General Manager and Superintendent of Transportation of defendant, testified for defendant: “ We do not consider Spring Hill a regular station, because it is not equipped as regular stations are. A regular station is one at which an agent is stationed for transaction of the company’s business, and at which shelter is provided for freights; in other words, a point at which we are able to receive, protect and deliver freights in our prescribed form. All freights shipped to an irregular station are required to be prepaid. At regular stations freight is collected at point of delivery. Between 29th October and 6th November, 1888; inclusive, Spring Hill was not a regular station. I think it ceased to be a regular station 1st January, 1887. It is now an irregular station.</p> <p>“ We have a policy in regard to irregular stations. We are frequently petitioned for flag stations. They usually offer the ground for station and to furnish agent. Our invariable answer is: We do not consider business sufficient to justify expense of agent, but for convenience of people we will permit trains to stop, with the understanding that the petitioners are to be responsible for any irregularity that may arise in delivery of freights at that point. We have no warehouse or agent at Spring Hill.”</p> <p>Or oss-examined. — “There is a platform there; don’t know whether there ever has been a warehouse there. Have been in my position since 1885. I said a regular station was one equipped with an agent and building for freights; a flag station is a very different one from an irregular station, though it may be one; we have lots of irregular stations that are flag stations. On main line few fast trains stop at all points, but will stop on signal, and it is noted on our tables by a dagger that train will stop on signal. An irregular station is always a flag station; a regular station is sometimes a flag station. I have not with me a table of stations and tariffs. (Local Freight Tariff No. 2 shown witness.) This is one of our tariffs; the title places on margin are stations; wherever there was a star, there was no agent; it seems, by this, that in 1886 Spring Hill bad an agent. (Circular No. 2095 shown witness.) This is one of the company’s circulars; the places on it are names of stations.”</p> <p>Re-direct. — “No. 2095 is a tariff of outgoing freights,going north, to Richmond. If it was going south, it would designate the prepay stations; that is my impression. I am not a freight agent.”</p> <p>Hassardsbort recalled by defendant: “Always stop at Spring Hill to deliver mail; wouldn’t always stop but for that. When Spring Plill was regular station, Brinkley was agent, and cared for freight at his house.”</p> <p>His Honor instructed the jury that, upon the evidence, the place called Spring Hill was not a regular station, or depot, as contemplated by the statute, and, therefore, that their response to the first issue should be No.</p> <p>The plaintiff put in evidence “No. 2 Local Freight Tariff, in effect October 1, 1886,” in which “Spring Hill” is mentioned, with other stations, without an}' particular designation; and also “Circular No. 2095,” of defendant, as to “rates on lumber to Richmond,” in which “Spring Hill” is simply mentioned with other stations.</p> <p>The Court gave judgment for the defendant, and the plaintiff, having assigned error, appealed.</p>

Witness — Evidence—Transaction with Deceased Persons. This is a civil, action*, which was tried before MacRae, J., at March Term, 1889, of Halifax Superior Court.

Judgment Lien — Federal and State Practice. This is a SPECIAL PROCEEDING, instituted before the Clerk of the Superior Court of Halifax County, for license'to sell real estate to raise assets with which to pay the debts of the intestate James Moseley. Issues of law and fact having been raised by the pleadings, the cause was transferred to the civil issue docket, and tried before MacRae, J., at March Term, 1889.

Equity — Injunction—Cloud upon Title. — Jurisdiction. This was a civil actior, pending in Halifax Superior Court, heard before MacRae, J., at Chambers on 6th February, 1889, upon a notice to show cause why an order restraining the defendants from selling certain land should not be continued till the final hearing of the cause.

Appeal— Undertaking — Reference— Guardian and Ward — Partition — Payment—Bonds of Administrators, Guardians, &c. This was a civil actioN, which was heard upon exception to referee’s report, before Merrimon, J., at Spring Term, 1889, of Nash Superior Court.

Mortgage — Registration — Evidence — Homestead — Descriptive Word's: This was a civil actioN for the recovery of a mule and wagon, tried before Avery, J., at the April Term, 1888, of the Superior Court of Fraijklin County. The plaintiff claimed under a mortgage executed to him by Robert Strickland and wife,- registered in the county of Wake o'n the 28th day of March, 1884. At the time of the execution and registration, the mortgagor lived in the county of Wake.

<p>Pleadings — Evidence—Judge’s Charge — Action to Recover Land.</p> <p>This was a civil ACTION, which was tried before Avery, J.,. at Spring Term, 1888, of Pitt Superior Court.</p> <p>The case is stated in the opinion.</p>

<p>1. Upon an application to relieve a party from a judgment, because of mistake, surprise, or excusable neglect, it is the exclusive province of the Judge hearing the matter to find the facts, and his finding is not reviewable.</p> <p>2. When the Judge grants the relief, in the exercise of his discretion, that conclusion is also not l-eviewable; hut whether the facts found constitute, in law. mistake, inadvertence, surprise, or excusable neglect, may be reviewed, and if it be determined that the Court below erred therein, the judgment will be corrected, and the motion remanded, to the end that the trial Judge may exercise the discretion conferred on him alone by the statute.</p> <p>3. When notice had been issued to the purchasers at a judicial, sale to appear at a term of the Court and show cause why the deeds theretofore made them by the commissioners appointed to make the sale should not be set aside and a re-sale directed, appeared as notified and were informed by one of the commissioners, who was also the attorney of the plaintiffs in the action, that no judgment would then be asked against them, and that he was satisfied the matter would be satisfactorily arranged before next term, and the other commissioner assured them that it was entirely unnecessary for them to employ counsel, that they were ignorant persons, that they relied upon these statements and took no further steps to answer the motion, that at the next term, without their knowledge or consent, a decree was signed, but not entered on the minutes allowing the motion : Held, to constitute such excusable neglect as would justify the Court in setting aside the judgment.</p>

Rt-s jvdicata — Vacating Judgments — “Excusable Neglect ”— Certiorari. At February Term, 1888, of the Supreme Court, the defendants filed a petition for a writ of certiorari to bring up for review the judgment rendered in this action against them in the Superior Court of Wilson County. (See,99 N. C., 238.) That petition having been dismissed, they now move to set aside the judgment dismissing it, with a view to a reconsideration of the matter.

<p>1. The lien in favor of sub-contractors, laborers and material men, contemplated in sections 1801 and 1802, The Code, does not attach until the person asserting it shall have given the notice therein pi escribed to the owner of the premises upon which the labor or materials were employed.</p> <p>■2. This rule is not affected by the amendatory act (ch. 67, Laws 1887), except in so far as it dispenses with the necessity for filing an itemized statement of claim before a Justice of the Peace or the Clerk of the Superior Court. This act is directed against the contractor, and is intended to compel him to furnish to the owner of the premises the statement necessary to give notice of claims of sub-contractors and others.</p>

<p>Arbitration — Possession—Costs.</p> <p>This is a civil actioN, which was tried before Craves, J., at September Term, 1889, of EkaNKLin Superior Court.</p> <p>While an action by the plaintiff against the defendant for the recovery of certain personal property, of* which the latter had taken possession, under a claim of right thereto, was pending in the Superior Court of Franklin, the parties, with a view to an adjustment of matters in controversy, entered into -a written agreement to submit the same to arbitration, as follows:</p> <p>“We agree to refer all matters in dispute between us, including the title and right of possession to a lot situated in the town of Youngsville, adjoining the lands of M. Woodlief, Dora Green, Joseph Young and John Young, con-taming seven acres, and including an action for claim and delivery, now pending in Franklin Superior Court, at the instance of John Knight against Richard Holden, and all claims in regard thereto, to O. M. Busbee, as arbitrator, and we agree to stand by, abide and perform his award.</p> <p>“Witness our hand and seal, July 11, 188ñ.”</p> <p>The arbitrator proceeded to hear the evidence and made his award in these words:</p> <p>“In respect to the matter referred to me, as arbitrator, in the foregoing agreement of arbitration, I award as follows:</p> <p>1. That Richard Holden, Sr., pay to John R. Knight the sum of two hundred and seventy-five dollars, and that upon payment thereof, the title and right of possession of the lot of land, described in said agreement of arbitration, be vested in said Richard Holden, Sr., in fee.</p> <p>2. That upon payment of said two hundred and seventy-five dollars to said John R. Knight, he, the said John R. Knight, shall execute and deliver to said Richard Holden, Sr., a good and sufficient deed of quit-claim in fee in and to said lot of land.</p> <p>3. If the said Richard Holden, Sr., shall fail to pay the said John R. Knight said sum of two hundred and seventy-five dollars within sixty days after the date hereof, then Jos. J. Davis and Chas. M. Cooke, as commissioners, shall sell said lot of land at public sale in the town of Youngs-ville, to the highest bidder for cash, after advertisement for ten days, by notice posted at the Railroad Warehouse in said town, and upon such sale shall execute title to the purchaser, and out of the proceeds of sale pay the expenses of sale, including five per cent, commissions to said commissioners, and the said two hundred and seventy-five dollars to said John R Knight, and the balance then remaining, to the said Richard Holden, Sr.</p> <p>4. If, upon tender of said two hundred and seventy-five dollars by said Richard Holden, Sr., to said John R. Knight, the said John R. Knight shall fail to execute and deliver the quit-claim before mentioned, then the said commissioners shall sell said lot of land in manner as aforesaid, and out of the proceeds of sale shall pay the said John R„ Knight said sum of two hundred and seventy-five dollars, less the expenses of sale and commissions as aforesaid, which shall be paid out of said two hundred and seventy-five dollars, and the balance of the proceeds shall be paid to the said Richard Holden, Sr.</p> <p>That the aciion pending in the Superior Cdurt of-Franklin County, wherein said John R. Knight is plaintiff and said Richard Holden, Sr., is defendant, shall abate, each party to pay his own cost. This 20th day of. August, 1885.’r</p> <p>In pursuance of the award, the land was, after advertisement, put up and sold by the commissioners to the plaintiff at the price of two hundred and seventy-five dollars,, and their deed made to him therefor. The present action is to recover compensation for trespasses committed on the land, to have title declared to be in the plaintiff, and for a perpetual injunction against the committing of further waste, for which, by reason of defendant’s alleged insolvency, no redress could be obtained. Upon the trial, the Court rendered the following judgment:</p> <p>1. That the award of C. M. Busbee, in so far as it provides for the sale of the land described in the complaint, and the sale of said land, and the deed made by the commissioners in pursuance of said sale, be and is hereby set aside</p> <p>2. That the plaintiff' hold the said land charged with the sum of two hundred and seventy-five dollars.</p> <p>3. That the defendant shall have ninety days in which to pay said sum, and upon its payment the plaintiff is directed to make title to the defendant for said land, and to deliver possession thereof to the defendant.</p> <p>4 That upon the default of the defendant to pay the said sum within the said time, then 0. M. Cook and J. W. Hinsdale are appointed commissioners, and directed to sell the said land in Youngsville for cash, after thirty days’ advertisement at the court-house and four other public places in Franklin county, and out of the proceeds to pay to the said plaintiff the sum hereinbefore adjudged to be due to him, and the balance to pay to the defendant, after retaining cost of sale, including a commission of five per cent, to each.</p> <p>5. That the plaintiff recover against the defendant the costs of this action.</p> <p>The defendant at the trial admitted the legal title to the locus in quo to be in the plaintiff, and set up an equitable title in himself, insisting that the award of the arbitrator is void, and that it certainly is void, in so far as it provides for the sale of the land.</p> <p>The action was tried before his Honor upon the pleadings, upon the suggestion that, if he should sustain' the award, it would not be necessary to go any further in the trial of the case.</p> <p>His Honor held that the award was void, in so far as it provided for a sale of the land, and set it aside to that extent; and, also, held that the defendant must pay all the costs, though his Honor sustained- the defendant in his equitable defence, and held that the plaintiff could not recover upon his legal title, but that he held the land in trust for the defendant to secure the amount of the award and costs ($275) due to him, and ordered a judgment accordingly, and all costs.</p> <p>From this judgment the defendant appealed.</p>

Pleading — Action to Recover Land — Homestead—Sale, Execution — Evidence. This was a civil action, for the recovery of land, tried before Connor, J., at the March Term, 1889, of the Superior Court of Martin County. The plaintiff claimed title to a tract of land described in the complaint, and alleged that the defendant was in the wrongful possession thereof.

<p>Cart-way — Eviden ce — Opinion — Maps.</p> <p>This was AN issue, made upon a petition for a cart-way, tried upon appeal, before Armfield, J, at May Term, 1889, of Vakoe Superior Court.</p> <p>It appears that the principal petitioner is the owner of a tract of land embracing 148 acres, and an additional adjoining tract of eight acres, on which is situate a grist-mill; and that Corbin Burwell, who joins in the petition, is a tenant of the principal petitioner and cultivates three or four acres of the smaller tract. A public road passes by, and there is out-let to it from the larger tract mentioned, but no public road touches, passes through, or leads from the smaller tract.</p> <p>The petitioners, alleging the material facts, pray that a cart-way be kept open across the lands of the defendants, leading from the smaller tract to the Townesville road, which is a public road. The defendants made opposition to the petition, alleging that the petitioners had sufficient outlet, and that the cart-way prayed for was not “ necessary, reasonable and just,” &c. Issues of fact were raised.</p> <p>“ On the trial in the Superior Court, the plaintiffs offered to introduce a map of the lands of Burwell, made by the surveyor appointed by the Court of Mecklenburg County, Virginia, to survey said land for partition, upon which was shown the various roads alluded to. Defendants objected ; objection sustained; plaintiffs excepted.</p> <p>“ They also, proposed to ask witness if, in his opinion, it would be necessary, reasonable and just to plaintiffs to have the road opened as prayed for. Defendants objected ; objection sustained; plaintiffs excepted.</p> <p>“ There was evidence tending to prove that the tenant petitioner had a way by which he could reach a public road over the principal tract mentioned, but it was not a very good one, was longer and less convenient, especially to patrons of the grist-mill situate on the smaller tract.”</p> <p>The jury found by the verdict, that “ there was no public road leading to the land (the smaller tract), and that it was not necessary, reasonable and just that the cart-way should be laid out over the lands of the defendants.”</p> <p>Upon the conclusion of the testimony, the plaintiffs requested his Honor to charge the jury that, taking all the evidence together, the defendants had shown no sufficient reason why the cart-way should not be granted, which request his Honor declined.</p> <p>Plaintiffs then asked his Honor to charge the jury that, taking the testimony altogether, they had shówn the cart-way was necessary, reasonable and just, and they should find the second issue in favor of the plaintiffs. His Honor declined to charge as requested.</p> <p>To the refusal of which prayer, plaintiffs excepted.</p> <p>“ The plaintiffs moved for judgment upon the verdict, upon the ground that the first issue having been found in their favor, that there was no sufficient testimony to warrant the jury in finding the second issue in favor of defendants. Motion overruled ; plaintiffs excepted.”</p> <p>“ Plaintiffs then moved for a new trial, upon the ground of error in excluding testimony offered by them and admitting incompetent testimony in favor of defendants, and in refusing to give instructions prayed for, and in giving those in the charge of his Honor. Motion overruled; plaintiffs excepted.”</p> <p>The Court gave judgment for the defendants, and the plaintiffs appealed.</p>

Execution — Claim and Delivery. MotioN, before the Clerk of the Superior Court of Lenoir County to recall an execution, heard on appeal by Boykin, J., at Chambers, on 12th day of December, 1888.

<p> Case on Appeal. </p> <p>Civil ACTION, tried before Shipp, J, at Spring Term, 1889, of the Superior Court of JoNES County.</p> <p>The plaintiff appealed.</p> <p>The case is stated in the opinion.</p>

<p>H. being indebted to A., a commission merchant, for advances, executed a deed in trust, in which the amount of the indebtedness was precisely stated, and in which it was recited that A. then had on consignment certain tobacco, the proceeds of which were to be applied to the said indebtedness, and then conveyed certain growing crops and real estate to secure any balance due after the application of the proceeds of the sale of the tobacco. An unsecured creditor of H. recovered judgment upon his debt, and upon the return of execution unsatisfied, brought his action to compel a settlement of the trust, and to subject the excess of the property, after satisfying the secured creditors, to payment of his judgment : Held,</p> <p>I. That H. had a resulting trust under the deed upoD which the judgment, when docketed, acquired a lien, but which could only be enforced by an action in the nature of an equitable execution.</p> <p>2. That, although the amount due the secured creditors was inaccurately recited in the deed by mistake — a larger sum being due them — yet as against creditors not parties to the deed, they were bound thereby, and that no parol agreement between them and the debtor, that any such excess should be secured by the conveyance, could could be set up against the unsecured creditor.</p> <p>3. That the debtor and secured creditors could not make any other disposition of the sales of the tobacco than that provided in the conveyance, to the prejudice of other creditors.</p>

Mortgagor and Mortgagee — Crops, Removal of. This was a civil ACTION, tried at April Term, 1889, of the Superior Court of WayNE County, by Graves, J. The action was brought to recover damages for malicious prosecution of the plaintiff by the defendant, in that the defendant had sued out a warrant against the plaintiff for disposing of mortgaged property with intent to defraud the mortgagee.

Contract — Partnership. This was an ACTION, tried on appeal from the court of a Justice of the Peace, before his Honor, Graves, J., at Spring Term, 1889, of Wayne Superior Court, upon the following case agreed: On the 10th day of March, 1887, the defendants were co-partners under the name and style of 0.

<p> ■Evidence. </p> <p>This is a civil action, which was tried before Graves, J., at February Term, 1889, Joi-inston Superior Court.</p> <p>On the trial of issues of fact by a jury, the plaintiff was examined as a witness in his own behalf, and likewise the defendant was so examined in his own behalf. There was much evidence, more or less conflicting. In reply, the wife of the plaintiff was examined as a witness in his behalf. She testified to material facts. At the close of her examination, “ the plaintiff offered to put in evidence certain papers which he stated to the Court were written by this witness, and proposed to prove by the witness that they were letters which, soon after the occurrences in question as they severally took place (to-wit, the said demands by her husband and refusals by defendant to furnish hands), she wrote and sent to a lady friend of hers living at that time in Pender County, and that in these letters the witness mentioned the said occurrences and related the facts of them exactly, in substance, as they had been testified to by herself and her husband — the plaintiff stating to the Court that the offering of these letters and this evidence was with the view to corroborate this witness, as showing declarations of hers soon after the transactions in question, consistent with her testimony here.</p> <p>“ This evidence was objected to by the defendant. The Court said, ‘properly identified, the letters would be competent, but not otherwise.’ No evidence was given about the letters, and they were not allowed to be read to the jury, and the plaintiff excepted.</p> <p>“ Mrs. Rencher was not cross-examined, and her character was proven and admitted to be good.”</p> <p>There was a verdict and judgment thereupon for the defendant, and the plaintiff, having excepted, appealed.</p>

Measure of Damages — Judge’s Charge. Civil actioN, tried before Graves, J., at Spring Term, 1889, of Johnston Superior Court. .This action commenced before a Justice of the Peace, to recover damages for killing plaintiff’s cow. The Justice gave judgment for plaintiff, and the defendant appealed to the Superior Court, where the following issues were submitted to a jury: 1. Was plaintiff’s cow. killed by the negligence of the defendant company? Answer: Yes. 2.

<p>1. Where a jury is waived, and the judge tries the facts, errors committed by him in the reception or rejection of evidence are reviewable upon appeal.</p> <p>2. The admission of irrelevant testimony is not ground for a new trial, if it is apparent that it was harmless.</p> <p>3. The plaintiffs and defendants entered into a contract, whereby the former “hired” and “leased” to the latter certain personal property for a fixed period, at a price ascertained, to be paid for in instalments; it was stipulated, that upon the payment of the entire sum the title should vest in the defendants, but upon failure to pay any one of the instalments the lease should terminate and the plaintiff might re-possess himself of the property: Held, (1) that this contract constituted a bailment; and (2) that the defendants might terminate it at any time by a refusal to pay the instalments then due, and an offer to surrender the property.</p>

<p>1. An action to remove a cloud upon title cannot be maintained by one who is not shown to be in (he rightful possession of the land, nor by one who has another adequate remedy.</p> <p>2. Where it appears from the record that no cause of action exists, the Supreme Court will ex mero motu dismiss the appeal for want of jurisdiction.</p>

Judge’s Charge — Evidence. This is a civil ACTION, which was tried before Bynum, J., at March Term, 1889, of Duei-iam Superior Court.

Cause of Action — Dismissal of Appeal — Reformation of Deed— Pleading. This is a civil ACTION, which was tried before Armfield, J., at August Term, 1889, of JOHNSTON Superior Court.

Pleading — Pendency of farmer action — Practice before Justices of the Peace. This was a civil aotiox, commenced before a Justice of the Peace in Wake County, and carried to the ¡Superior Court by appeal. At April Term, 1888, of the Superior Court, Shipp, J, presiding, the cause coming on for trial, the record states that “ the defendant moved that the cause he dismissed for want of jurisdiction of this Court.” Question of jurisdiction reserved.

<p>Revenue, State and County — Constitution, School Fund — Liquor Dealers — County Government —Taxation. ■</p> <p>This was a civil action, tried before Graves, J., at January Term, 1889, of Wayne Superior Court.</p> <p>This action began in the Court of a Justice of the Peace to recover the sum of $65, paid by and collected from the plaintiff as taxes in July of 1888, which, he alleges, were invalid, and as allowed by the statute. (Acts 1887, ch. 137,. § 84).</p> <p>The following is so much of the case stated for this Court on appeal as it is uecessary to report:—</p> <p>1. The county levy for the said year for said county was in the following words, to-wit: “ The rate of county tax was fixed at 25 cents on each $100 real and personal property; Schedule B & C taxes same as State’s, and poll tax at _ constitutional requirement.”</p> <p>2. The plaintiff, on the 1st of July in said year 1888, was a liquor dealer in said county, duty licensed to sell spirituous liquors in the quantities aforesaid.</p> <p>3 On or about the 10th day of said month of July, the Sheriff of Wayne County collected forty dollars from plaintiff, as such dealer selling spirituous liquors in quantities of one quart and less for the said period, and twenty-five -dollars for selling such liquors in quantities of one quart and less than five gallons fpr the same period.</p> <p>His Plonor ruled, first, that under the law in question (section thirty-one, of chapter 135 of the Laws of 1887), the several counties were not restricted to the third class of license taxes (namely, for selling in quantities of five gallons or morel, embraced in that section of the act, but had like authority to levy the license taxes named in the first and second classes, being those specified in the case agreed; secondly, that under the 6th and 7th sections of Article 5 of the Constitution of this State, the object of the said levy was stated with sufficient particularity by the Board of Commissioners of Wayne County, and was constitutional and valid. To all which the plaintiff excepted.</p> <p>Judgment for defendants, from which the plaintiff appealed.</p>

Evidence — Transaction and Communication with Deceased Persons. This is a civil ACTION, which was tried before Shipp, J., at November Term, 1888, of Granville Superior Court.

Res judicata — Mortgage—Action to Recover Land — Misjoinder of Actions. This is an Application to Rehear the case of Ryan, Trustee v. Martin, 103 N. C., 282, decided at the last term of this Court. In that abtion, the plaintiff sought to recover the land described in the complaint therein.

Administration — Parties—Distribution. This action was tried before Bynum, J., at April Term, 1889, of GRANVILLE Superior Court, .upon complaint and demurrer. The plaintiffs alleged in substance: 1.

Vendor and Vendee — Crops—Mortgagor and Mortgagee — Lien. Civil action, tried before MacRae, J., upon exceptions to a report, at Spring Term, 1889, of Edgecombe Superior Court.

<p>Assign m eni— Consideration — Deed—Evidence—Fraud—Husband. and Wife — Marriage.</p> <p>This was a civil actioN, tried before Merrimon, J., at' August Term, 1889, of the Superior Court of Iredell County.</p> <p>The plaintiffs claimed title to, and sought to recover of the defendants, the land mentioned and described in the complaint. On the 21st day of May, 1888, the Sheriff sold the land as the property of the defendant Calvin Bowles, under an execution upon a judgment of the Superior Court of Iredell County, in favor of A. P. Sharpe, administrator, and others, against Calvin Bowles, defendant, and others. The plaintiffs became the purchasers at the sale, and the Sheriff executed to them a deed. The plaintiffs, in order to show that the feme defendant claimed under Calvin Bowles, showed in evidence a deed from Calvin Bowles to her, of date the 6th day of October, 1883.</p> <p>The plaintiffs then introduced as a witness P. W. Eagle, who testified that, some time since 1880, he had heard Calvin Bowles talking — since the judgment against him; that he didn’t intend to pay any more security money; that this was at Calvin’s house, and in Mrs. Bowles’ presence; that he heard her complain that they were trying to get more out of them than was due them, and that they didn’t allow them to have any more; that he heard complaints the day they were at Bowles’ laying off his homestead; that both defendants said it was not necessary to lay off the homestead; that they intended to fight it out; that he heard Mr. Bowles say he had made the land over to his wife, and that the land once belonged to her and she wanted him to convey it back; that she said she had it made over to her to cover these debts; that he had heard that the money Calvin Bowles used to pay for the land was his wife’s money.</p> <p>One Harmon, a witness for the plaintiffs, testified in corroboration of Eagle.</p> <p>The plaintiffs here closed, and defendants introduced as a witness one Blackwell, who testified that defendant Calvin bought the land from one Turner, and he (Blackwell) went his security for the purchase money; that Turner owed him, and he allowed this debt to Bowles to pay Turner with, and Bowles then gave him (Blackwell) his note, and turned over to him the deed he had received from Turner as collateral security; that he (Blackwell) kept the deed until 1869, when Bowles paid him off,and he surrendered the deed; that, two days afterwards, the deed was registered; that the first payment made to him was a horse Mrs. Bowles’ father had given her; horse rated at $150.</p> <p>The defendant Mrs. Bowles testified that her husband failed to pay for the land, and told her if she would take her effects and pay for it, she might have it; that her husband ■said he would have to sell it if she did not take it; that Blackwell went her husband’s security for the land debt, and Turner owed Blackwell and gave him Bowles’ note, and Bowles gave Blackwell his note; that her husband told her the land would be hers if she paid her effects on the land debt — this in fall of. 1857; that the deed was made by Turner to her husband in 1855, and the exchange of notes was in 1857; that her husband kept the deed two years, and then delivered it to Blackwell, his surety for the purchase money, who held it until 1869, when, upon the payment of the balance of the purchase money, the deed was handed back to Calvin Bowles; that the consideration paid for the land was $750; that, at the time of the trade, her father had given her a horse, and that she allowed her husband to pay this horse on the land trade at the price of $150; that her husband also received, as administrator of her father’s estate, $90 of her money from the sale of her father’s personal property, and she allowed this to be applied towards the payment of the land debt; (hat she was, also,entitled to $60 from the other heirs of her father to make equality of partition, and this was paid on the land ; that she received another horse as the price of her land, at $140, and her husband sold this horse for $180, and paid it on the land — these payments all made before 1859; that one A. A. Sharp held, as a trustee for her mother during her natural life, the sum of $2,000, and, in 1858, her husband borrowed of this sum from the trustee the sum of $259, which Was also paid on the land; that, at the time her husband borrowed this money, the sum of $2,000 was apportioned among her mother’s children by the trustee, and this $259 was the portion she (Mrs. Bowles) was to receive at her mother’s death; her husband was to pay interest to the trustee until her mother’s death ; that, in 1870, she received $42 from the sale of her deceased brother’s interest in her father’s land — this money her husband received and used; that, when her husband conveyed the land to her in 1883, she and her husband considered all their various claims as a debt against him in her favor, and they constituted the consideration for the deed to her.</p> <p>Mrs. Bowles demurred and contradicted the testimony of Eagle and Harmon, and said that she told them the deed from her husband to her was made to cover the debt her husband owed her under the agreement made with her, that, if she would allow him to use her effects to pay for the land, he would make her a deed for it.</p> <p>Calvin Bowles testified in corroboration of his wife’s evidence, and said that it was agreed between them that, if she would let what she got from her father go to pay for the land, it should be hers, and that he executed the deed to her in fulfillment of that agreement. Calvin Bowles had no other land, and was not worth his lawful exemptions in personal property. It appeared that the $259 note was a part of the judgment under which the land was sold, and that Calvin Bowles owed other debts at that time.</p> <p>The only issue passed upon by the jury was as follows:</p> <p>“ Was the deed of Calvin Bowles of October G, 1883, to his ■wife Asenath Bowles made to hinder and defraud the creditors of Calvin Bowles ? ”</p> <p>It was conceded that, if this issue should be answered in the affirmative, it would not be necessary for the jury to pass upon the others.</p> <p>The plaintiffs contended—</p> <p>1. That the deed was fraudulent upon its face.</p> <p>' 2. That, upon the defendants’ own showing, the transaction was fraudulent.</p> <p>3. That the property received by the defendant Calvin Bowles, before 18G8, from the estate of his wife’s father, became his, and could form no part of the consideration in the deed to his wife, nor could it be an indebtedness to his wife; that if any part of the consideration of the deed was feigned, it was void.</p> <p>The Court declined to give the first and second, and gave only so much of the third as will appear hereafter.</p> <p>Iiis Honor told the jury that the deed did not appear ■ upon its face to have been made with the intent on the the part of Calvin Bowles to hinder, delay, or defraud his creditors, and that the Court would not be warranted in saying to them that the transaction was fraudulent (as a matter of law), and charged the jury as follows:</p> <p>1. That it was for the plaintiffs to show that the defendant Calvin Bowles made the deed to his wife with intent to hinder and defraud his creditors.</p> <p>2. That if he, being insolvent, made the deed to her without any consideration, other than that of natural love and affection, the deed was fraudulent and void as to creditors.</p> <p>3. That if he, being insolvent, made the deed for a valuable consideration, and a full and fair price, but with the intent to hinder or defraud his creditors, and his wife knew of such intent at the time of the delivery of the deed to her, the deed was fraudulent and void as to the creditors of Calvin Bowles.</p> <p>4. That if Calvin Bowles, being unable to pay his debts, conveyed the land to his wife for less than its reasonable value, the presumption was that the conveyance was fraudulent as to his creditors, and that, unless the defendant had rebutted the presumption, it was the duty of the jury to find the first issue in the affirmative; that the relationship between the defendants was evidence for the jury to consider of a fraudulent intent, on the part of Calvin Bowles, known and participated in by his wife, and, in this view of the case, it was for the defendants to satisfy the jury that the deed was not fraudulent.</p> <p>5. That at the time Calvin Bowles received the horse and moneys of his wife, proceeds of her real estate, the law was such that he became the absolute owner of them, free from any claims of the wife whatever. But that it was competent for them to agree that such property should be the separate property of the wife, and if they had such an understanding and agreement in regard to it, and it was agreed further between them, that the husband should use and employ it as his wife’s property in paying for the land, and make her a deed to the land, and he did so use it, and in good faith conveyed her the land in pursuance of that agreement, aiid without any intent to hinder, delay or defraud his creditors, the deed would not be void as to his creditors.</p> <p>That the $259 which Calvin B >wles borrowed from the trustee of his wife’s mother, was not a debt due from him to his wife, and could form no part of the consideration for the conveyance to her, by her husband, of the laud in dispute, but this fact in itself would not justify the Court in declaring the deed to be fraudulent and void.</p> <p>It was for the jury to say whether the evidence in the case satisfied them that the deed was made by Calvin Bowles with intent to hinder and defraud his creditors.</p> <p>If, after deducting the $259 from the amount of the consideration expressed in the deed, it appeared to them, from the evidence, that the deed was made to Mrs. Bowles for less than the land was reasonably worth, the presumption was that it was fraudulent, and unless the defendants had satisfied them that it was a fair and honest transaction between the defendants, they should find the issue in the affirmative.</p> <p>6. That the defendant Calvin Bowles had the right to give his wife any property he owned, whether personal or real, and no matter whence he derived his title to the same. That if he received property by his wife, it was competent for him to give it back to her to be her own, and then to agree with her in regard to the manner in which, and the purposes for which, it should be used. But he could not do this to the prejudice of his creditors, or with the intent to defraud them.</p> <p>The question here was whether the husband had agreed with his wife that the property which she received from her father and from his estate, and from her brother’s estate, should be and remain the property of the wife, and that she should have the land in question if she would allow him to use her property in paying for it.</p> <p>The plaintiffs excepted to the refusal of his Honor to charge as they requested, and to the charge as given, as follows:</p> <p>1. Because the Court erred in n.ot holding the transaction fraudulent in law upon the evidence.</p> <p>2. In not declaring the deed fraudulent on its face.</p> <p>8. In not instructing the jury that, if part of the consideration upon which the deed from Calvin Bowles to his wife was made was feigned, the deed was void as to the creditors, if he was insolvent at the time.</p> <p>4. That the Court erred in instructing the jury that, if the wife paid a valuable consideration, no matter how small, and she did not know of the husband’s intention to defraud, the deed would be good, even if the husband did inlend to defraud his creditors.</p> <p>5. That the Court erred in charging the jury that, if the husband received the horse given his wife by her father, even at the hour, or before he received it, he agreed with her that the value of it should be a debt, it would become a debt, and might form a part of the consideration to support the deed.</p> <p>6. That the Court erred in applying the same rule to all the other personal property, and also the real estate, it being-admitted, at the time the same was received, the defendant Calvin Bowles was indebted and insolvent and owned no other-property, and it being in evidence that the debt of $259 is a part of the debt upon which the judgment was entered, under which the land was sold.</p> <p>7. That the Court erred in charging the jury that the defendant could give back to his wife a part of her property and then lake it back, and the balance become an indebtedness to her, it being admitted that he was then insolvent and largely indebted and holding no property.</p> <p>8. That the Court erred in instructing the jury that, if the $259 debt was a part of the consideration in the deed from Bowles to his wife, it would not render the deed void as to creditors, but might be considered by them as evidence of fraud, and only raise a presumption of fraud that may be rebutted by the defendants, and, in not telling them the transaction was fraudulent as to creditors, if the defendant Bowles was insolvent.</p> <p>These exceptions to the instructions given by his Honor to the jury were not filed until after the jury returned their verdict.</p> <p>In so far as they undertake to set forth the charge to the jury, it will be seen, by reference to the charge itself, that they are inaccurate, and do not, for the most, set forth, substantially, the charge.</p> <p>The Court called the attention of the jury to the testimony of the several witnesses who were examined, and recited it fully. There was no evidence that Calvin Bowles owed any debt, except the purchase money for the land, at the time he and his wife, as they testified, made the agreement by which her property was to be used to pay for the land, and the land was to be hers.</p> <p>The jury found the first issue in the negative. Plaintiffs moved for a new trial, which motion was denied. There was judgment for defendants.</p>

Evidence— Witness. This was a civil ACTION tried before Philips,. J., at April Term, 1889, of Cabaiírus Superior Court.

Injunction — Mortgage—Usury—Notice. Civil action, pending in Cumberland Superior Court, and heard, upon an application for an injunction, by Gilmer, J., at May Term, 1889. The motion was by plaintiff for an injunction to prevent the defendants from selling the plaintiff’s land under mortgage, as set forth in complaint us'ed as an affidavit. The Court refused to grant the injunction, and plaintiff excepted.

Jurisdiction — Deceit— Warranty— Contract. This was a civil actioN, tried at September Term, 1889, of the Superior Court of RICHMOND County, before Merri-mon, J. The plaintiff alleged for a first cause of action— 1. That, on-day of July, 1883, one Clem.

Limitations, Statute of — Sheriff—Official Bonds — Sureties — Amercement. Held: in reference to the matters and things set out in the second paragraph of the complaint as a breach of said bond (being the same, in substance, as set out in paragraph second of above statement of facts), that the same was barred by the statute of limitations, for that more than six years had elapsed from the execution of said bond…

Lien, Agricultural and Laborer's — Contract — Landlord — Cropper. This is a civil action, which was tried before Bynum, J., at August Term, 1889, of Lenoir Superior Court. The plaintiff alleged that the cotton and rice in controversy were delivered and belonged to him as his share of the crop produced on his father’s farm in the year 1888, which he helped to cultivate.

Executors and Administrators — Guardians—Penalty. This is a civil action, which was tried before Bynum, J., at August Term, 1S89, of Lenoir Supérior Court.

A gency— Con tract — Damages. This is a civil action, tried before Connor, J., at the April Term, 1887, of the Superior Court of New Hakovek. The plaintiff brought this action against the defendant and one Anthony Davis, to recover compensation for professional services rendered Davis, upon the request of the defendant Koonce, who, it was alleged, was authorized to contract for Davis in that behalf.

Arbitration — Award—Depositions—Estoppel. This is a civil ACTION, which was tried before Bynum, J., at April Term, 1889, of GraNVille Superior Court.

<p>E. executed a deed to his two children (naming them), in which it was recited and provided that he had “given and granted unto my said children a certain tract of land (describing it). I do hereby appoint S. guardian of my said children, with full power and authority as the law may direct'to guardians, and, whenever my said children may come to the age of twenty-one, will be entitled to take possession of said land, free from all costs. * * * At the same time, it is to he considered that the above deed of gift will not take place till my death and the death of my wife”: Held, that the deed contained conclusive intrinsic evidence of the vendor’s intention to convey to his children a fee-simple estate, after the death of himself and wife, and that the necessary technical words had been inadvertently or ignorantly omitted, and that, in an action to correct the deed in that resjiect, the Court would, upon an inspection of the instrument, grant the relief.</p>

Appeal — Injunctions. This was a civil ACTION, pending in Durham Superior Court, and was heard, upon motion for an injunction, before Gilmer, J., at Chambers, on June 27 and July 2, 1889. Both parties appealed from the rulings of his Honor.

<p>Jurisdiction — Claim Against the State Constitution.</p> <p>This is an ACTION, brought in the Supreme Court, under Art. 4, Sec. 9 of the Constitution, to establish an alleged claim of the plaintiffs against the State, and have the value of certain bonds appropriated to its satisfaction. The cause was argued at the last term, but the opinion was not announced until the pre.-ent term.</p> <p>The case developed by the pleadings is, substantially, as follow*:</p> <p>“The Chatham Railroad Company” was a corporation organized under and in pursuance of the statute (Pr. Acts 1860-61, ch. 129), and the name thereof was afterwards changed by the statute (Acts 1871-72, ch. 11) to that of “The Raleigh and Augusta Air-Line Railroad Company.” But, before this change of name, the statute (Acts 1863, ch. 14) provided, in favor of this company, as follows:</p> <p> “ The General Assembly of North Carolina do enact: </p> <p>“ SeotioN 1. That, to enable the Chatham Railroad Company to finish their road, the Public Treasurer is hereby authorized and directed to deliver to the president of the said railroad company the coupon bonds of the State of one thousand dollars ($1,000) each, to an amount not exceeding two million dollars ($2,000,000), signed by the Governor, countersigned by the Public Treasurer, and sealed with the great seal of the State, bearing six per cent, interest, the principal payable at the end of thirty years from the date thereof, and the coupons of interest payable semi-annually, in such form as the Public Treasurer may direct — principal and interest payable at such time and place as he may prescribe.</p> <p>“Sec. 2. Before the Public Treasurer shall deliver any of the said bonds hereby authorized, the president of said Chatham Railroad Company shall deposit with the Public Treasurer the coupon bonds of the company, signed by him and sealed with the company’s seal, for the same amount, and bearing the same interest and date, the principal and coupons payable at the same time and place as those of the State hereinbefore directed to be issued and paid over to said company; and, to secure the same, principal and interest,of said bonds issued by the company, the State of North Carolina shall have, by this act, a lien upon all the estate of the same, real or personal, which they may now have, or may hereafter acquire, between the point of intersection with the Western Railroad and the South Carolina State line,including that at both points, together with all rights, franchises and powers thereto belonging, or that may hereafter belong to said company, in respect to that portion of the line, which lien shall be more effectually secured by a first mortgage, executed by said company to the State and registered in the Register’s 'office in .the county of Wake, and in the office of the Secretary of State; and, in case of failure of said corn-pan}' to pay the semi-annu 1 interest on their bonds for twenty-four months after such interest shall become due, or to pay the principal on said bonds for twelve months after ther maturity, the Board of Internal Improvements, for and in behalf of the State, may enter upon and take possession of all the property hereinbefore specified, and dispose of the same by sale, so as to protect the State.</p> <p>“Sec. 3. The Chatham Railroad Company may, at any time before maturity, discharge the bonds of said company deposited with the Public Treasurer by substituting in lieu thereof coupon bonds of the State, or other indebtedness of the State, or payment in national currency.”</p> <p>The State bonds thus authorized were issued and delivered to the railroad company mentioned, and this company executed and delivered to the Public Treasurer for the State its first mortgage bonds for the like amount, and executed its first mortgage to secure the same, as contemplated by the statute just recited, which was duly registered, for the purpose therein specified.</p> <p>Afterwards, in the course of business, the plaintiffs became the owners of one hundred and forty State bonds so issued, receiving the same from a party who bought from them the iron for the railroad of the railroad company mentioned, which iron was placed upon their road. It was conceded that these bonds, and all the State bonds so issued, were unwarranted by the Constitution of this State, and are void.</p> <p>Afterwards, the plaintiffs brought their action in the Circuit Court of the United States, to compel the party from whom they received the bonds last mentioned (the railroad company and others) to pay them for the iron so supplied by them. This action was determined adversely to them in the Circuit and Supreme Courts of the United States. See Baltzer v. Railroad Go., 115 U. S. R., 634.</p> <p>About the 15th of August, 1873, as allowed by the third section of the statute above recited, and other statutory provisions afterwards enacted, the railroad company surrendered to the Public Treasurer of the State 1703 of the invalid State bonds so received by it, and 'in place of the balance of the 2000 of them .so received by it, it delivered to the Public Treasurer 297 valid bonds of the State, each of the denomination of $1,000, which last mentioned bonds were burned by the authorities of the State, as was done ordinarily with such bonds when discharged. The defendant alleges that the plaintiffs had full notice of the surrender of the State bonds to its Treasurer, and of the first mortgage bonds to the railroad company, and might have interfered and set up opposition then to his claim, but failed to do so, &c.</p> <p>The plaintiffs, among other things, allege, in the complaint, as follows:</p> <p>“18. And these plaintiffs further state, upon information and belief, that the said 297 valid coupon bonds of the State thus deposited are a trust for the benefit of the holders of said 297 high numbered bonds, and are not, and never have been, the property of the said State, and that the said State is in no way entitled to the use and benefit, thereof, but said State holds them only as a trust for those who advanced the consideration upon the faith of the validity of the said high numbered bonds, and that it received the said valid bonds and held them subject to the trust, as aforesaid, and that they are, in fact, the property of these plaintiffs and of other holders of outstanding high numbered bonds, and that said State has no right, title or claim thereto.</p> <p>“ 19. And these plaintiffs further state, upon information and belief, that the said State has obtained and holds the said valid State bonds, deposited with it in the aforesaid exchanges and substitution, without parting with any value whatever, other than the original issues of high numbered bonds claimed to be invalid, as aforesaid, and that the State has, at all times, declined to acknowledge the validity of the said high numbered State bonds, and still continues to so decline, and that the said deposit is, in law and equity, a deposit of the said valid State bonds in trust for the benefit of the plaintiffs, and the other holders of the said high numbered State bonds, and that the said State is accountable to these plaintiffs for their pro-rata share of the valid bonds thus, as aforesaid, deposited.”</p> <p>The defendant alleges numerous grounds of defence. The pleadings are very voluminous, but the above statement is sufficiently full for the purpose of a proper understanding of the opinion of the Court.</p> <p>Before the argument began, the counsel for the State moved “to dismiss the action and claim of plaintiffs upon the ground that this Court has no jurisdiction of the subject matter of the action.”</p>

Penalty — Common Carrier — Express Companies — Statute— Reasonable Regulations — Consignor and Consignee. Civil action, brought in the Court of a Justice of the Peace to recover a penalty of fifty dollars, under the provision of section 1964 of The Code, and heard, on appeal, by the Superior Court of Halifax County, before MacRae, J., on the following case agreed: 1.

Judicial Sale — Lapse of Time — Acquiescence—Judgment— Irregularity.

Amendment of Pleading — Contract, Evidence — Purchase Money of Land. This was a civil action, tried before Brown, J., at May Term, 1889, of Iredell Superior Court. The complaint is upon an executory contract (a copy of which is annexed to the complaint) for the purchase of land, wherein Mary M. Alexander, the testatrix of the defendant Mary V. McElwee, contracted to pay a specified sum for said land and executed notes therefor.

Reference — Jury Trial — Contract—Parol Evidence — Material Ruling on Law. Civil actioN, tried at March Term, 1889, of Davidson Superior Court, before Brown, J. The cause had been. referred to Hon. John H. Dillard. Defendant filed exceptions to his report, and moved to submit certain issues to a jury. It appearing that defendant had made no objection to reference, had acted on it, and prayed for it in his answer, the Court denied the motion. Defendant excepted.

Railroads — Damages for Expelling Passengers— Tender of Fare— Necessary Force — Common Carrúr — Contract. This was a civil ACTION, tried before Connor, J., at the February Term, 1889, of the Superior Court of Henderson County. The plaintiff set out two causes of action, to .both of which the defendants, in their answer, made appropriate defences.

Devise — After Executed Deed — Construction. Civil ACTION to recover land, heard before Brown, J., at March Term, 1889, of DavidsoN Superior Court, upon facts agreed.

Dismissal of Appeals — Rules of Court. This was an Action for a mandamus, tried before MacRae, ‘J., at the Spring Term, 1887, of Mitchell Superior Court, upon complaint and answer and facts agreed. Motion was denied and plaintiff adjudged to pay the costs. Plaintiff appealed The facts are sufficiently set out in the opinion of the Court.

<p>The Supreme Court; will not consider exceptions where no assignment of error has been properly made below.</p>

Justice of the Peace — Jurisdiction—Splitting up a Cause of Action — Money had and Received. Civil ACTION, tried before Merrimon, J., at September Term, 1889, of Iredell Superior Court, upon appeal from a Justice of the Peace. The defendant owned divers promissory notes aggregating a large sum, and sold and assigned a one-half interest in each of them to J. W. Finch, and the latter afterwards, for value, sold his interest, in certain of them to the plaintiff.

Pleadings — Frivolous Answer— Amendment. This was a Motion for Judgment upon the pleadings heard before Clark, J., at May Term, 1887, of RobesoN Superior Court.

Attachment — Proceedings before the Clerk — Appeal—Amendment — Jurisdiction. This is a civil ACTION, tried before Shipp, J., at April Term, 1889, of New HaNOVer Superior Court, upon a motion to vacate a warrant of attachment. In the course of the action, the plaintiff availed himself of the provisional remedy of attachment. The defend■ant appeared and moved to discharge the same.

Clerk of Superior Court — Default—Official Bond — “ Virtue” and “Color” of Office — Administration. This is a civil ACTION, tried upon case agreed, at May-Term, 1889, of Iredell Superior Court, before Brown, J. The plaintiff is the administrator of the estate of J. A. F. Watts, who died intestate in the county of Iredell in 1883.

Receiver — Fin ancial Judgment — Agricultural Lien — Inter-vener — Disposition of Rents in hands of Receiver. This was an appeal from the rulings of his Honor, Philips, J., at RobesoN Superior Court, May Term, 1888. The object of this action was to enforce an alleged parol trust, and the issue's were decided adversely to the plaintiffs, and it was adjudged that the defendants were the owners and entitled to the possession of the land in controversy.

Pleading — Counter-claim — Contracts — Torts — Warranty— Issues — Judge’s Charge — Exception-—Evidence—Negligence— Verdict — Judgment in Supreme Court. This was a civil actioN, for the enforcement of an agricultural lien for advancements under the statute, tried before Shepherd, J., at October Term, 1888, of RobesoN Superior Court, upon issues under the defendant’s affidavit and notice filed with the Sheriff.

Negligence — Damages to Live Stock — Prayer for Relief— Charge. Civil ACTION, tried before Bynum, J., at August Term, 1889, of Duplin Superior Court. Plaintiff claimed damages for the killing of his mare by negligence of defendant in running its cars and engine. It was not controverted on the evidence that the plaintiff’s mare was knocked off a railroad embankment in the daytime by the defendant’s passenger train and killed.

Damages— Costs — Pleading— Trespass — Possession. This was a civil ACTION, tried at September Term, 1889, of the Superior Court of New HaNoveb, County, before Bynum, J. In order to a clear and proper understanding of what is alleged in the complaint, and either denied or admitted in the answer, enough of the complaint and answer is given below to set out the facts. It was admitted that plaintiffs were husband and wife. The plaintiffs alleged— “2. That the plaintiff Jvlia 0.

Notice — Injunction—Relief Against Mistake or Inadvertence. This is an Appeal from a Restraining Order, granted by Philips, J., at Fall Term, 1889, of McDowell Superior Court. At the appearance term of the Court, the plaintiff filed his complaint and the defendant filed her answer thereto, and an order of reference was entered.

Contract — Issues—Statute Frauds. This was a civil ACTION, tried before Philips, J, at the Fall Term, 1889, of Burke Suprerior Court, for the recovery of a debt, and to subject land to the payment thereof. The facts upon which the action is founded are set outfin Gordon v. Collett, 102 N. C., p. 532, in which ’the former appeal in this case was considered. Plaintiff tendered the following issues: 2.

Special Contract — Statute of Limitations — Quantum Meruit— Family Rdatidnships— Consideration.

Contract — Vendor and Vendee — Statute—Frauds—Evidence. This is a civil ACTION, which was tried beforfe Boykin, J., at February Term, 1888, of the Superior Court of ALEXANDER County. Thomas Miller, the ancestor of the plaintiffs, on the 8th of May, 1858, executed to the defendant a bond for title, covering the locus in quo. Under this bond the defendant entered and has been in possession ever since.

Contract — Merger. Civil action, tried before Connor, J., at Fall Term, 1889, of Gaston Superior Court. The plaintiff brought his action before a Justice of the Peace for the recovery of $135.35 due by account and note under seal. When the cause was called for trial, the plaintiff entered a nolle prosequi as to the cause of action upon the note.

Pleading — Account—Contract—Amendment—Statute of Limitations. This was a civil ACTION, tried before Armfield, J., at Spring Term, 1889, Watauga Supreme Court. The facts are stated in the opinion. There was judgment for plaintiff,* from which defendant appealed.

Iivles of the Supreme Court — Printing Record — Dismissal of Appeal— Constitution. Motion to dismiss Appeal for failure to print the parts of the record required by the rules.

Code, § 2056 — Cartway—Evidence—Procedendo—Judgment. This was a Proceeding, begun before the Board of Supervisors of Icard township, Burke County, for a cartway, brought by successive appeals to the Superior Court of said county, and tried before Philips, J., at Pall Term, 1889, of Burke Superior Court.

<p>1 A written acknowledgment, or new promise, certain in its terms, or which can be made certain, is sufficient to repel the operations of the statute of limitations, under section 172 of The Code.</p> <p>2. When the Court found as a fact that the defendant executor for eleven years resisted payment of the debts sued on, because he doubted the genuineness of the acknowledgement, or new promise, set up by plaintiff in reply to defendant’s plea of statute of limitations: Held, that the defendant might have had an inspection of the paper containing such alleged promise, and there was an unreasonable delay of payment, and the defendant was liable for costs.</p>

Negligence — Presumption—Statute, Construction of — Railroad— Injuries to “Live Stock.” This is a civil ACTION, tried at July Term, 1889, of the Superior Court of MadisoN County, before Clark, J. The action was brought to recover damages for the negligent killing of three oxen, belonging to plaintiff, by the defendant’s engine, running on the W. N. C. Railroad.

Costs — Discretion— When Reviewable — Equitable Action. This was a civil actioN, tried at Fall Term, 1889, of Haywood Superior Court, before Clark, J. The action was brought to compel the specific performance of an executory contract in writing in respect to the land specified in the- complaint.

Jurisdiction — Estoppel—Exemption— Vendor’s Lien. Civil action, tried before Merrimon, J., at Spring Term, 1889, of Cherokee Superior Court.

Municipal Corporations — Easement— Vested Rights— Constitution — Adverse Possession — Streets—Towns and Cities — Eminent Domain.

Pleading — Contract—Construction—Demurrer—Trespass— Conversion: This was a case heard by Shipp, J., at the July Term, 1889, of Catawba Superior Court, upon complaint and demurrer.

Evidence— Common Carriers — Burden of Proof — Contributory Negligence — Damages. This was a civil action, tried at the Fall Term, 1889, of McDowell Superior Court, before Philips, J., for damages for personal injuries by defendant. The facts are reported in same case in 98 N. 0., 494, and 101 N. C., 454. The issues submitted were: 1. Was plaintiff injured by the negligence of defendant as alleged in the complaint? Answer: Yes. 2.

<p>Election — Registration— Voter — Evidence— Office.</p> <p>This was a civil actioN, which was tried at Spring Term, 1889, of the Superior Court of Polk County, before Clark, J.</p> <p>The plaintiff relator alleged that he was duly elected to be Sheriff of the county of Polk, at the regular, election held in November of the year 1888; that, nevertheless, the County Commissioners of that county refused to induct him into that office, as he requested them to do, and as, in law, they should have done, on the first Monday in December of that year, but professed and undertook to' elect the defendant to that office and induct him into office for the term of office then next ensuing.</p> <p>The defendant denied that the'plaintiff was so elected, and alleged that he was elected, &c.</p> <p>It was agreed of record that the Court should find the facts from the evidence produced, and it did so.</p> <p>It was admitted that, if the vote cast at the voting place called “Lewis’ Store” should be counted, the relator was duly elected. It appeared that the regular registration book of qualified voters at that voting place had been lost; that the registrar, who had known and who was familiar with the book, was furnished with a new registration blank-book; that he put in the same the names of such persons as he knew had been duly registered in the lost book, and registered in this new book the names of such other persons as were entitled to register.</p> <p>The plaintiff then offered, in detail, to show that no one voted at “Lewis’ Store” who was not duly registered, either on the book used or on the lost registration book; that no one voted but those entitled to vote, and that no one entitled to vote was excluded.</p> <p>The defendant objected to this as a waste of time, stating that his witness, Mr. Green, had stated that in substance, and that, as to the election, his point was, solely, that the registration book for that precinct was lost and no new registration book had been ordered, and hence, the vote at “Lewis’ Store” was illegal and should not be counted.</p> <p>The Court found that the relator received a majority of the votes legally cast at the election mentioned, and was duly elected, and gave judgment in his favor, and the defendant, having excepted, appealed.</p>

Administration — Evidence—Lease—Merger—Counter-claim — Application of Assets — Liability of Administrators and Executors — Conditional Sale. Tills was a civil action, tried before Philips, J., at January-Term, 1888, of the Superior Court of Robeson County, upon exception to a referee’s report. E. IT.

Action to Recover Land — Undertaking—Defence Bond — Statute. This is an action to recover land, tried before Clark, J, at Pall Term, 1889, of Haywood Superior Court. The defendant made his affidavit, stating therein that he was not worth the sum of two hundred dollars, the amount of the undertaking required of him before being allowed to plead, answer, or demur, in any property whatsoever, and that he was unable to give the same.

Parties — Presumption— Possession — Administration—Burden of Proof. This was a civil ACTION, tried at the Spring Term, 1889, of the Superior Court of Polk County, before Clark, J. The action was brought by William Ballinger, the intestate of the plaintiff, T. T. Ballinger, to recover of the administrator of Govan Mills, one of the obligors, the amount due by virtue of the following note : “ $2,855.

<p>1. When A. purchased and paid for land, and had title made to B. for the purpose of defrauding his creditors, and judgments were obtained against him, and the land sold under execution: Held, the purchaser got no title.</p> <p>2. When one has only a right in equity to convert the holder of the legal estate into a trustee, and call for a coi.veyance, there is not such a trust estate created as is subject to sale under an ordinary execution.</p> <p>3. The remedy of the judgment creditor, is an action in the nature of a creditor’s bill to subject the land to the payment of debts.</p> <p>4. When, upon the inspection of the whole record, it appears that the judgment was unwarranted upon the facts, this will, ex mero-motu, reverse it.</p>

<p>1. Where the transcript of a record was deposited in the post-office in ample time to have reached the Supreme Court before entering on the call of the calendar of the district to which the case belonged, but by some delay in the mails did not reach its destination until after the time for docketing: Held, that the excuse was reasonable, and the appeal would not be dismissed.</p> <p>2. Appeals, in the legal sense, are not taken until the adjournment of the Court; up to that time the proceedings of the Court are-in fieri.</p> <p>3. The statute (Laws 1889, ch. 161) extending the time to perfect appeals applied to appeals then pending, and extended the time of the appellee to file exceptions, as well as the time of the appellant to prepare and serve his case.</p> <p>4. Where, therefore, the appellant had served his case after the time within which he might have done so under the statute, as it stood originally, but within the ten days as provided in the Act of 1889, and the appellee had no opportunity to file exceptions: Held, that although the appeal was saved by the Act of 1889, nevertheless the appellee was entitled to the statutory period of five days in which to file his counter-case.</p>

Action to Recover Land — Enidence—Bond for Title — Possession— Trespass— Variance.

<p>Appeal — Argument.</p> <p>Appeal from Pall Term, 1888, of Cherokee Superior Court.</p>

Negligence — Burden of Proof — Evidence—Master ■and Servant. This is a civil ACTION for damages for an injury sustained by the defendant, which was tried at August Term, 1889, of the Superior Court of Cleveland County, before Connor, J. The plaintiff testified: “On April 29th, 1887,1 was in the employ of the defendant as baggage-master. Just before reaching Black’s Station, the conductor (McCarthy) told me that there was a flat-car, with brick on it, to be cut off.

Deed, Execution and Probate — Privy Examination — Husband and Wife — Seal—Justice of the Peace — Statute—Issues.

Insanity — Idiots and Lunatics — Notice—Purchaser for Value— Evidence — Burden of Proof — Fraud—Void and Voidable Conveyances. This is a civil ACTION for the recovery of the possession of the land described in the complaint, and for damages for its unlawful detention, tried before MacRae, J., upon issues found by a jury and exceptions to a referee’s report, at Fall Term, 1888, of Gates Superior Court.

<p>Eminent Domain — Condemnation of Land — Damages—Evidence — Appraisement.</p> <p>The plaintiff brought its summary proceeding to'condemn land of the defendants for the purpose of right-of-way for its railroad. Commissioners were appointed to view the land and assess damages. They did so, and made their report, assessing damages to defendant at three hundred dollars, to which the plaintiff excepted and objected, upon the ground that the damage assessed was excessive.</p> <p>In the Superior Court, issues were submitted to a jury. On the trial, the parties examined divers witnesses. Certain of those examined by the defendants, respectively, testified as follows, the plaintiff excepting to parts of their testimony, as indicated in the course of their examination:</p> <p>The defendants introduced .M. L. WINSTON, who testified: “I have been accustomed to attend Bullock Church all my life; have examined the boundaries. There is a ditch around three sides of the church land. The lot is a parallelogram, with the longest side on the railroad, the other three sides bounded by private property. The public highway has been taken and occupied by the railroad, and the highway put upon church land — that is, on land condemned for right-of-way.”</p> <p>Defendants proposed to show that the land was used for the purpose of hitching horses, etc.</p> <p>Exception.</p> <p>“Some horses are hitched on the east line; some on north and south ends, on the church lands. There is nearly three-fourths of- an acre left. Before railroad was laid out, have seen two or more horses hitched to the same-tree, besides many buggies and other vehicles being on the ground. The owner of the adjacent land cut a ditch, about eighteen inches deep, on the church line, on all three sides, except next to railroad. The church is about 34 x 54 feet, and about 100 feet from the railroad. I have been at the church when the train passed. There is a very large membership:”</p> <p>Defendants then proposed to show the value of the property before the railroad was built.</p> <p>Witness stated that, before the road was built, he valued the property at about $1,000; now thought it was worth $600. “Taking off the land condemned makes the lot more oblong, being smaller in the rear. Church stands on slight hill; a depression behind the church; church-yard is well .wooded.- The church is not cut off from the highway. I was one of the commissioners appointed to assess the damages. I am not a member of the Methodist Church; I am a minister of the Christian Church. Before the land was condemned, they had barely enough for church purposes. Taking off one-fourth of the land would depreciate the value of the building.”</p> <p>H. R. Gooch, witness for defendant, stated “that the lot was in the shape of a parallelogram, with the railroad on the long side of it. Sometimes (before the railroad was built) there was not room enough in the lot for church purposes, and there is not enough now; horses could see train from any part of lot, unless they were put behind the church; have been there during services.”</p> <p>The defendant, proposed to show the effect of running-trains by the church during services.</p> <p>Exception.</p> <p>“ The attention of the congregation was diverted from the minister to the passing train. The only way of approach to the church is by the way along side of the railroad, a ditch having been cut around the other three sides of it. The property was worth $1,250 for church purposes, and was so valued in report to Conference. I consider the railroad has damaged it fully one-half.”</p> <p>On cross-examination, witness said : “ I am a member of that church; attention is sometimes diverted by persons coming in; church has not been valued since the report to Conference. The congregation is falling off. Some leave their teams at home and walk, and some have gone to other churches. It is now worth but little for church purposes.”</p> <p>There vas a verdict and judgment for the defendants assessing damages at four hundred and fifty dollars, and the plaintiffs appealed.</p>

<p>1. The plaintiff must allege facts sufficient to sustain his cause of action, before an injunction will be allowed.</p> <p>2. Individual stockholders in their own name are not the proper parties to assert the rights of a corporation ; action should be brought by and for the corporation itself. If its officers or other stockholders fail to do their duty in that respect, the remedy is, as a general rule, to be sought within the corporate organization.</p> <p>3. Where there is cause for complaint by stockholders against others, they should first resort to the remedy prescribed in their charter ; and failing in this, they will have a right to proceed against the delinquents, and, in proper cases, injunction will be granted to protect the rights of parties.</p> <p>4. A good cause of complaint in such cases is fraud or serious injury done, or about to be done, by some of the stockholders or officers, for which there is no adequate remedy given under the charter.</p> <p>5. It should be alleged and proved that the plaintiffs are bona fide owners of stock and have taken proper steps within the company to assert their rights : it ought also to appear that proper legal steps have been taken in the State which is the domicil of the corporation and defendant corporators, before the aid of the Courts of a foreign State will be afforded.</p> <p>6. When, as in this case, a variety of remedies was open to plaintiff for many years and he did not pursue any of them, he is chargeable with gross laches, and the Courts will not interfere by injunction for his relief.</p>

<p>Executors and Administrators — Real Estate — Assets — Judgments — Limitations—-Heirs—Creditors.</p> <p>This is an application for a license to sell land to make assets to pay debts, &c.</p> <p>The following is so much of the case stated on appeal as need be reported:</p> <p>John A. Dickson died on the 18th day of October, 1861. W. S. Moore administered on his estate on the-day of August, 1862. Moore filed an administration bond which is lost, and cannot after due diligence be found, as many of the records of Burke County were destroyed during the late war. Moore died on the-day of-, 1869. Jos. Brittain was appointed administrator de bonis non oí John A. Dickson on the 23d day of December, 1886. There was no administration on said estate from Moore’s death, in 1869, until the appointment of plaintiff, in December, 1886.</p> <p>Dickson left a large personal estate, a part of which was laid off to the widow as a year’s allowance, but sufficient personal property went into the hands of Moore, his administrator, to pay all the debts against said estate. The estate of W. S. Moore is totally insolvent and has been since several years before his death and nothing can be made out of it. No bond of Moore as administrator can be found, owing, prob-. ably, to the destruction of the records of Burke County in ,1865, and the names of the sureties on such bond are unknown and cannot be ascertained. There is no personal property in the hands of Jos. Brittain, administrator de bonis non, nor has anything come to his hands since his appointment with which to pay debts. T. G. Walton, executor of Thomas Walton, recovered a judgment quando against Moore, administrator of Dickson, on the 24th day of May, 1869, for $391 on specialties filed of date 1855 and 1856, with interest on $214.10 from the 24th day of May, 1869, until paid, and costs as shown by the Minute Docket at that term of the Court. The Judgment Docket of that term of the Court shows said judgment to be a judgment absolute.</p> <p>S. M. Roderick recovered judgment against Jos. Brittain, administrator of Dickson for $189.30, with interest on $49.87 from 8th of August, 1887, till paid, and cost.</p> <p>S. McD. Tate recovered judgment against Jos. Brittain, administrator of Dickson, for $179 15, with interest on $68.38 from 24th January, 1887, till paid, and cost.</p> <p>These judgments are unpaid and are valid claims against the estate of Dickson.</p> <p>The Court held that the judgment recovered at _ Term, 1889, of Burke Superior Court in favor of T. G. Walton against W. S. Moore,'administrator of John A. Dickson, was a judgment absolute, and not a judgment quando, as found by the referee.</p> <p>To this ruling the plaintiff excepted.</p> <p>The Court ruled that the judgment in favor of Walton against Moore, administrator, was not barred by the statute of limitations, and was not presumed to be paid by the lapse of time, and overruled the defendants’ plea of the statute of limitations and presumptions.</p> <p>To this ruling of the Court — overruling the plea of the statute of limitations and presumptions and holding that said judgment was not barred — the defendants again excepted.</p> <p>The defendants insisted that, upon the facts found, the plaintiff was not entitled to have the land sold for assets.</p> <p>The Court overruled the defendants’ objection, and the defendants again excepted.</p> <p>Judgment in favor of plaintiff, to which the defendants excepted and appealed.</p>

<p>Action for Foreclosure— Correction — Equitable Procedure— Reference Under The Code — Constitution—Rents.</p> <p>This was a civil action, tried at the Fall Term, 1889, of Duplin Superior Court, by Bynum, J., upon report of referee.</p> <p>The action was brought to foreclose a mortgage of land executed by the defendant to the plaintiff on the 29th day of November, 1867, to secure the payment by the former to the latter of “seven hundred dollars, due by bond or note, with interest from sometime in the year 1857, as on reference to said bond will more fully appear,” &c., as recited therein. Among other things, the plaintiff alleges in his complaint that the recital in the mortgage as to the “ bond or note” “ was inserted therein by mistake and inadvertence of both parties” thereto; and he demanded judgment that the mortgage be corrected so as to recite simply an indebtedness in the amount specified — no such bond or note having been executed or intended — that the mortgage as corrected be foreclosed, the land sold, &c.,-and he asked for general relief, &c.</p> <p>The defendant in his answer denied that he owed the debt specified in the mortgage, and alleged that the debt intended to be secured by it was a judgment specified for $209.61, balance of a note sued upon. He alleged facts explanatory of how the false recital in the mortgage came' to be made, and that it “ was caused as above set forth and by inadvertence and mistake of both .parties to the deed, and that no such indebtedness of seven hundred dollars existed from defendant to plaintiff at the time by note or otherwise”; and he further alleged, that long before that time he had fully paid to the plaintiff the mortgage debt intended, &c., &c.</p> <p>The pleadings having been completed, an order of reference was entered whereof the following is a copy: “By consent of parties it is ordered that the above action be referred^to F. A. Daniels under The Code.”</p> <p>Under this order the referee took much evidence, found the facts and the law applicable, stated certain of his rulings, and made and filed his report, to which divers exceptions were filed by the defendant. Upon consideration of the same the Court made an order, of which the following is a copy:</p> <p>“This cause coming on to be heard, and it fully appearing that the indebtedness existing at the time of the execution of the mortgage was only the balance due upon the judgment mentioned in the report; that the same was given under an agreement to indulge the defendant, and also to secure the balance then due and for advances to be thereafter made; and the Court being of the opinion that the plaintiff should not have his mortgage corrected, as prayed for, unless he is willing to do equity by having it also corrected so as to show the actual amount of the debt due at the time of its execution; and the Court being of the opinion that the equities of the case will be met by allowing this to be done, and treating the said mortgage as security for the amount actually due at the time of its execution and the advances thereafter made—</p> <p>“ It is adjudged that this cause be remanded to the referee, and that he report what amount, if anything, is due the plaintiff upon a statement of account based upon the rulings herein.</p> <p>“The referee has leave to take further testimony.”</p> <p>To this order the plaintiff excepted, and assigned divers-grounds of error therein, but these are not necessary to a proper understanding of the opinion of the Court and need not be repeated.</p> <p>Afterwards, the' referee heard further evidence, found the facts and the law applicable, and made and filed his second report. The following are copies of material parts thereof:</p> <p>“I find the following facts:</p> <p>“1. On the 29th day of November, 1867, the defendant-executed and delivered to plaintiff a mortgage upon the real estate described in the complaint, which recited an indebtedness of $700, with interest from some time in 1857, which was recited in said mortgage to be due by note or bond,. which mortgage purported to secure the payment to plaintiff of said note or bond; that no note or bond was ever executed for said sum of $700; that the recital in said mortgage that said indebtedness was due by note or bond was inserted therein by the inadvertence and mistake of both parties, and that said recited indebtedness is evidenced in no other manner than by the recital in said mortgage; that the said mortgage was executed for the purpose of securing to the plaintiff the balance due on a certain judgment held by plaintiff against defendant, which, at the time of the execution of said mortgage, amounted to $207.61, some other small indebtedness due by account, and to secure such advances as the plaintiff might, from time to time, make defendant, and for no other purpose.</p> <p>“2. That, at the time of the execution of said mortgage, the plaintiff, at the request of the defendant, went into possession of the lot described in the complaint as the town lot in the town of Warsaw under an agreement entered into with defendant to the effect that plaintiff was to take possession of the property and do the best he could with it, applying the rents received therefrom to the payment of defendant’s indebtedness; that he has remained in possession except one year — 1877 or 1878 — when defendant was in possession of the store on said lot, though the plaintiff has not been himself the actual occupant of said property, except the vacant lot, which he has cultivated; that the property was of such a character that the class of'tenants to whom it could be rented was utterly insolvent, and the plaintiff was compelled to rely upon their honor rather than upon their financial responsibility for the payment of rent; that the tenants were frequently changing, and the plaintiff was sometimes able to procure tenants and sometimes not; that the store was sometimes rented for a month or two at a time to persons who desired it for special seasons and for special and temporary purposes, and who would vacate after a month or two of occupancy; that the houses upon said premises have been gradually falling into decay, and, during the possession of plaintiff, business has moved largely to another part of the town; that the plaintiff has done the best he could with the property, and that he has received rents therefrom to the sum of $759.97, as in referee’s statement of rent account filed herewith as a part of .this report, which, considering all the circumstances and surroundings, is, for the time plaintiff has been in possession, a fair rent for the same.</p> <p>“conclusions on law.</p> <p>“ 1. That the insertion of the recital in said mortgage that $700 was due by note or bond was made by the inadvertence and mistake of both parties, and that the said mortgage was executed to secure the balance due upon said judgment, to-wit, the sum of $209.61, some small items of account due by defendant to plaintiff, and to secure further advances made by plaintiff, from time to time, to defendant; and it is ordered that said mortgage be corrected so as to show its real intent and purpose to be to secure the said balance and the amount of advances made by plaintiff to defendant, and the plaintiff held the same only as a security for said sums.</p> <p>“ 2. That the sum with which plaintiff is charged in the account herewith filed ($759.97) is, all things considered, a fair rent for said property.</p> <p>“3. That defendant is not indebted to the plaintiff, but plaintiff is indebted to defendant in the sum of $77.03.</p> <p>“4. It is ordered, adjudged and decreed that defendant recover of plaintiff the sum of $77.03 and the costs of this action.”</p> <p>The plaintiff and defendant, respectively, filed numerous exceptions to this report. These are sufficiently referred to in the opinion to be understood. The Court below overruled all the exceptions of the parties, confirmed the report, and gave judgment in favor of the defendant. Each of the parties, having excepted, appealed.</p>

Evidence — Burden of Proof — Settlement—Guardian—Administration — Judge’s Charge. This is a civil ACTION, tried before Merrimon, J., at August Term, 1889, of Iredell Superior Court.

Libel — Slander — Privileged Declarations — Malice—Evidence— Burden of Pro»j. While an action between Geo. H. Nissen (the plaintiff in this action) and the Genesee Gold Mining Company was being tried before the Hon. J. Ii.

Contract— Warranty— Waiver. This was a civil actioN, tried before Clark, J., at Spring Term, 1889, of Gaston Superior Court, and was brought to recover damages of the defendants for an alleged breach of contract in the sale of 100 bales of cotton to plaintiffs.

A ss ignmen t— Contract — A gen cy — Evidence— Consideration— Interest — Parties—Pleading. This is a civil action, tried at February Term, 1889, of Mecklenburg Superior Court, Clark, J., presiding. The defendant' received, in the fall of 1888, from J. T. Allred & Co., considerable quantities of cotton to sell in the-market, as their agent, and account for the proceeds, less-certain sums of money to be due to him.

<p>1. The fact that the debt embraced in a judgment was contracted for the purchase of the land sold by virtue of an execution issued thereon may be proved by parol.</p> <p>2. If the judgment of the Court recites the fact that the debt was contracted for the purchase of land (as provided in § 234 et seq., The Code), such recital is conclusive as between the parties to the record.</p> <p>3. And where that fact is recited in a judgment rendered by a Justice of the Peace, though the pleadings may have been oral, it is likewise conclusive — the presumption, in the absence of anything to the contrary appearing, being that the judgment was rendered after a trial in which the recited fact was duly established.</p> <p>4. Although the statute (The Code, § 234) gives the defendant a right to have the issue, whether the debt sued on was contracted for the purchase of land, tried by a jury, if he so demands, yet, if after being duly summoned, he'fails to appear and answer, he waives that right.</p> <p>5. When such issue is made, it does not raise such a controversy involving title to real estate as divests the jurisdiction of a Justice of the Peace.</p> <p>6. A sale of land under execution issued upon a judgment rendered for a debt contracted for the purchase money thereof, is valid without a previous allotment of a homestead.</p>

Administration — Statute of Limitations — Pleading. This is a civil action, in the nature of a creditor’s bill, tried by McRae, J., at Spring Term, 1888, of Macon Superior Court. It was agreed that the Judge might try the issue of the statute of limitations, it being the only issue of fact for a jury arising upon the pleadings.

<p>Marriage and Divorce — Alimony—Notice of Motion — Findings of Fact.</p> <p>This was a Motion for Alimony pendente lite, heard before Broten, J., at RANDOLPH Superior Court, Spring Term, 1889.</p> <p>The plaintiff served notice on the defendant on the 21st day of September, 1888, to appear at Troy, Montgomery County on the 3d day of October, 1888, to show cause why alimony should not be allowed her, pending this suit. By agreement of counsel of plaintiff and defendant, the hearing tvas adjourned from Troy to Albemarle, in Stanly County, to be heard on the 17th day of October, 1888, on which day the defendant and his attorney were present and resisted said motion upon the ground that said motion could not be heard and no order could be made in said cause outside of Randolph County, where the cause was pending. Whereupon, his Honor Judge Philips, upon his own motion, and without the consent of the defendant, ordered the same to be transferred, to be heard on the third Monday in March, 1889, it being the 18th day of March, 1889, at Asheboro, in Randolph County. Without any further notice to the defendant, the plaintiff, in the absence of the defendant, on Thursday, the 21st day of March, 1889, called up .the case and moved his Honor to proceed with the hearing of her motion to be allowed alimony pendente lite. The defendant’s counsel, being present, objected to the Court’s hearing or considering the motion, on the ground that no notice had been given to the defendant, as required by law. The Court proceeded to consider and hear the motion, and the defendant excepted to the same. Upon the hearing, the counsel for the defendant resisted the application and order on the ground that the plaintiff was not entitled to alimony; that it appeared from the complaint and the evidence that she was not a married woman, nor the wife of the defendant, and insisted that the Court should so find and declare.</p> <p>After hearing the case and considering the same, the Court decreed alimony to the plaintiff, from which defendant appealed. •</p> <p>The first cause of action alleged in the complaint charged that the marriage ceremony was duly solemnized between the plaintiff and defendant, in this Stale, on the 4th day of May, 1887, the plaintiff believing that there was no obstacle to the union, and that it was, in all respects, valid, but that, in fact, the defendant was then married to a former wife, still living, from whom he -pretended to have obtained a divorce in the State of Illinois; that the divorce, if ever procured at all, was void, in that it was a fraud upon the laws of this State, the defendant being, all the time the proceedings upon which it was alleged to be based, a citizen and resident of North Carolina.</p> <p>The second cause of action alleged, with great particularity, long-continued cruel and inhuman treatment of plaintiff by defendant.</p> <p>The prayer for relief was: (1) For divorce a vinculo matri-monii; (2) for divorce a mensa et (horo; and (3) for alimony.</p>

<p>Insanity — Endorsement — Presumption — Payment — Judge's Charge.</p> <p>This is an action which was tried at May Term, 1889, of Ikedell Superior Court, Brown, J., presiding.</p> <p>The bond sued upon was executed in 1867, and was payable on demand.</p> <p>It -was admitted that the presumption of payment had arisen, and it devolved upon the plaintiff to rebut it. For ■this purpose he relied upon the following entry on the back of the bond: “ January 26, 1884. Renewed. T. A. Osborne.” It was in evidence that the signature to said entry was in the handwriting of T. A. Osborne, the defendant’s intestate, but that the remainder of the said entry was in the handwriting of his son. There was testimony tending to show that the intestate was mentally incapable to make such written acknowledgment. The issues pertinent to the exceptions were as follows:</p> <p>3. “ On said date did said Osborne have sufficient mental capacity to make such written acknowledgment ? ”</p> <p>4. “ Has the plaintiff rebutted the presumption of payment which has arisen against said bond ? ”</p> <p>His Honor charged the jury as follows:</p> <p>“ If the jury believe, from the evidence, that the intestate, Thos. A. Osborne, had capacity to know what he was doing, .•and the consequences of his act, and to understand such ■consequences, and that he signed the endorsement on the ■note, intending and meaning to signify and acknowledge •that the debt had not been paid, the jury should answer the third and fourth issues, Yes.”</p> <p>The Court further charged, “that the words on the back of the note signed by the intestate, are sufficient to rebut the presumption of payment if the jury believe said Osborne had understanding sufficient to know their meaning, import and consequences, and intended and meant to acknowledge that the said note had not been paid; otherwise, they should answer them No. That the burden of proof is on the defendants to satisfy you that the said Thos. A. Osborne had not mental capacity to make alleged acknowledgment, for the defendants, alleging incapacity, must prove it by a preponderance of evidence.</p> <p>“ If the jury should find the third issue No, then they should answer the fourth issue No, because there is no evidence to rebut the presumption of payment, except the entry or endorsement and signature on the’back of the note.”</p> <p>There 'was a verdict for plaintiff, and from the judgment thereon defendant appealed.</p> <p>The error assigned is, that the word “ renewed ” was, in itself, sufficient to rebut the presumption of payment, and that its effect should not have been qualified by submitting to the jury the intent with which it was used.</p>

<p>1. If it is desired to attack a deed between husband and wife, upon the ground that it was executed in contemplation of a separation, that allegation must be duly made in the pleadings.</p> <p>2. B., the husband, conveyed a tract of land to S., in trust “to allow the said B. and M. his wife to have the rents, &c., for their own use ; and further, that out of said rents, &c., to support the said M. in such manner as she has heretofore lived,” &c.: Held — (1) that the wife could, in her name alone, maintain an action against the trustee and the husband to compel a performance of the trust, especially as it was evident the husband refused to be associated with her, and it was probable the plaintiff might be entitled to some relief against him; (2) that it was the duty of the trustee, he having signed the deed, to take charge of the land conveyed and collect the incomes, and first appropriate so much (all, if necessary) as was required to the support of the wife in the manner provided — the primary ob j ect of the trust bein g to maintain her; and (3) that the wife could not compel the trustee to account for a failure to collect the incomes for past years, as the deed provided for an annual current appropriation, unless she had contracted with third parties obligations necessary for her support, and had expressly charged them upon the income for their respective years.</p> <p>3. In an action equitable in its nature, the Court may give such relief as the facts and pleadings may render appropriate, though it be not prayed in the complaint, and it may, to that end, order the pleadings to be reformed, to correspond with the facts established.</p>

Specific Performance — Mortgagee—Assignee—Poivers of Sale— Equitable Assignment — Conveyance of Beal Estate — Estoppel. This was a civil action, tried at September Term, 1889, of CLEVELAND Superior Court, before Boykin, J. By consent of the parties, a trial by jury was waived, and the Court found the following facts, to-wit: “On the 21st day of December, 1880, the defendants S. T. Eskridge and wife Mary executed and delivered to their co-defendant, W. IT.

<p>1. Where realty is devised to be sold and the proceeds divided at the death of the testator, it is, by construction of law converted into personalty, and the rules governing the devolution of that species of property become applicable.</p> <p>2. To constitute such constructive conversion, it is essential that the power conferred to sell shall be imperative; if the power is left to the discretion of the person charged with it, no conversion results.</p> <p>3. Where the persons upon whom a discretionary power to sell was conferred by devise, contracted verbally, to sell the land, and let the purchaser into possession, who paid a portion of the purchase money; Held — (1) that this did not create an actual conversion, inasmuch as the contract was not enforcible; and (2) that the conveyance by an executor of the land, after the deaths of those originally entitled to it or its proceeds, could not operate retroactively, so as to change the order of descent.</p>

Divorce — Adultery — Demurrer — Incest — Fraud —Abandonment — Husband and Wife — Pleading. This was an ACTION for divorce a vinculo matrimonii, tried at the August Term, 1889, of the Superior Court of Surry County, before Gilmer, J. The complaint is as follows: “ 1. That, on the 13th day of March, 1887, the plaintiff and defendant were married in Surry County, North Carolina. “ 2.

Mortgagor and Mortgagee — Contract—Evidence, Parol — Burden of Proof — Correction of Deed — Mistake — Issues — Costs— Appeal. Appeal from Superior Court of Mecjclenjjuüü County, at Fall Term, 1888, Boykin, J., presiding. Action for damages for the breach of the conditions of a forthcoming bond given by defendant for the delivery of property embraced in a chattel mortgage executed by him to plaintiff.

Homestead — Personal Property Kxemptions — Assignment— Covenant — Damages. This was a civil action, tried before Bynum, J., at February Term, 1889, of Chatham Superior Court. The plaintiff declared on a note, under seal, executed to J. B. Harris by defendant Richardson on the 31st of March, 1887, for the sum of $500, with interest, at eight per cent., from date, payable one day after date.

Penalty — Register of Deeds — Negligence—Marriage—Verdict— Amendment. Civil actioN, tried at March Term, 188-9, of Orange Superior Court, Bynum, J., presiding. This action, began before a Justice of the Peace, is prosecuted to recover the penalty of two hundred dollars of the defendant, Register of Deeds, for issuing a marriage license for the marriage of the plaintiff’s daughter in violation of the provisions of section 1816 of The Code.

Railroads — License—Statute of Frauds — Easement—Estoppel. This is a civil action, heard upon motion for injunction, before Connor, J., at Spring Term, 1889, of VaNCE Superior Court. The Oxford & Henderson Railroad was chartered on the 23d day of March, 1871. In the month of August, 1881, it completed its track to a point in the town of Henderson,, designated as A” in the diagram, within a few feet of the right-of-way of the Raleigh & Gaston Railroad Company.

Contract — Vendor and Vendee — Sale. This was a civil action, tried at the September Term, 1889, of the Superior Court of Richmond County, before Shipp, J. The plaintiff made affidavit in claim and delivery proceedings alleging ownership in.'certain guano, as per contract/which is as follows: “ Dear Sir : We will sell you our fertilizers at the following prices, delivered at railroad -depot at Norfolk, Va., viz.: 500 tons Bone and Peruvian Guano, $_cash, $27.50 May 1st,…

Rape — Evidence—Indictment—Joinder of Counts— When Prosecutor Required to Elect. This was an Indictment for Rape, tried at January Term, 1889, of the Superior Court of Wake County, before Graves, J. The indictment was drawn for the common law offence.

<p>1. Where a warrant before a Justice of the Peace is informal, it may be aided by the affidavit if it refers to it, the warrant and affidavit being constituent parts of the same procedure; and, if the Court can see from them that the offence is sufficiently charged, it will be sustained.</p> <p>2. The Court has power to allow either a warrant or the affidavit to be amended.</p> <p>8. It is not necessary that a warrant should conclude, “against theform of the statute.” .</p> <p>4. Where the sale of liquor is made criminal within four miles of a certain locality, and the defendant, who had a distillery more than four miles from that locality, agreed with a party within the four miles to sell him liquor, which was also delivered within the four miles: Held, that it was a sale within the four miles, and consequently a misdemeanor.</p>

Jurisdiction — Justices of the Peace. This was an Appeal from an Order made by Bynum, J., at the Spring Term, 1880, of the Superior Court of OhaNUE County. The defendant was arrested on the warrant of a Justice of the Peace, charging him with selling spirituous liquors within four miles of Chapel Hill, in violation of § 2640 of The Code, and after a preliminary hearing was bound over to answer the charge in the Superior Court.

<p>Amendment — Record.</p> <p>Appeal from February Term, 1889, of Chatham Superior Court, Bynum, J., presiding.</p>

<p>Fornication and Adultery — Evidence—Trial by Jury — Judge’s Charge.</p> <p>This was an indictment charging the defendant and Margaret Robbins with living in fornication and adultery, tried at Beaufort Superior Court, Spring Term, 1889, before Boykin, J, the defendant Dixon alone being on trial.</p> <p>Dr. Nicholson testified that he had attended the female defendant in her sickness three times; that the defendant Dixon employed and paid him for his services; that the first time he attended her Dixon stated, when he went after him, that the woman was kin to him, but never stated what the relation was and never referred to her as a relative after-wards; that the defendants both thought the woman pregnant on one occasion.</p> <p>E. T. Stewart testified that he had frequently seen the defendants together on the streets at night, but never in the day-time; that on one occasion, at the instance of Dixon, he put one Sam Corson out of the house occupied by the woman, and shortly afterwards (this was late at night), the defendant Dixon went into the house; that the defendant Margaret was “a loose woman, or bore that name.”</p> <p>William Poy testified that he was at the woman’s house on several occasions at night, when she was sick, and saw the defendant Dixon there at night, and several times in. bed with the woman, but witli his clothes on.</p> <p>Daniel Kelley testified that he lived in sight of the woman’s house, and that Dixon was in the habit of going to the woman’s house very often -early in the night and leaving very early next morning, about light.</p> <p>Samuel Corson testified that for several nights prior to the finding of this bill of indictment, the defendant Dixon, after he (Corson) had been put out of the woman’s house as aforesaid, went to the house nightly and slept with the woman; that he heard them undress and go to bed; the defendant Dixon furnished the woman a house to live in; that he-bought the house and put her in it about the time witness was ejected, as stated.</p> <p>The Judge intimated to counsel for defendant Dixon, who only was on trial, that the only question to be discussed before the jury was as to the credibility of the witnesses for the State (the defendant having introduced none), and the defendant excepted. Exception overruled.</p> <p>Counsel for defendant did argue the merits of the case fully to the jury. The Judge recapitulated the testimony to the jury in his charge, and told them if they believed the evidence,the defendant was guilty. The defendant excepted. Verdict of guilty, and from the judgment rendered the defendant appealed.</p>

Larceny — Asportation—Evidence— Judge’s Charge. This is an Indictment for Larceny of a cow, the property of William Keel, tried at March Term, 1889, of the Superior Court of Pitt County, before Connor, J. The prosecutor, William Keel, testified that he lost four cows before the last of November of last year; that he last saw them about the second week in November; missed them on Saturday before the fourth Sunday in November.

Constitution — Statutes—Police Power. This was an indictment originating before the Court of á Justice of the Peace and tried on appeal in the Superior Court of NORTHAMPTON, at Pall Term, before Boykin, J., for a violation of chapter 81, Laws‘of 1887, as amended by-chapter, 321, Laws of 1889, in selling cotton contrary to the provisions of said chapters.

<p>Master and Servant — Enticing Servants — Indictment—■Constitution — Statutes—Go ntract — Inf an ts.</p> <p>■ This is a CRIMINAL action which was tried before Arm-field, J., at September Term, 1889, of Wayne Superior Court.</p> <p>The defendant and one L. B. White are charged with violating the provisions of section 3119 of The Code in an indictment containing two counts, one for enticing, persuading and procuring three named persons in the service of the Wayne Agricultural Works, a corporation formed under the laws of this State, under contract as laborers, to-leave the service of their employer; the other for knowingly harboring and detaining them in the defendant’s service after leaving the service of said corporation.</p> <p>The statute under which the indictment is framed is in these words:</p> <p>“If any person shall entice, persuade and procure any servant by indenture, or any servant who shall have contracted in writing or orally to serve his employer, to unlawfully leave the service of his master or employer, or if any person shall knowingly and unlawfully harbor and detain. in his own service and from the service of his master and employer, any servant who shall unlawfully leave the service of such master or employer, then in either case such person may be sued, singly or jointly, by the master, and on recovery he shall have judgment for thé actual double value of the damages assessed.”</p> <p>The succeeding section makes the forbidden acts a misdemeanor also, and subjects the offender to a penalty of one hundred dollars to any person suing for the same.</p> <p>The indictment is as follows:</p> <p>“The jurors upon their oath present, that H. L. Harwood and L. B. White, late of the county of Wayne, on the 19th day of August, in the year of our Lord one thousand eight hundred and -eighty-nine, at and in the county aforesaid, unlawfully and willfully did entice, persuade and procure Will Humphrey, Sam Womble and Wayland Tutor, servants, who had heretofore contracted with the Wayne Agricultural Works — a company incorporated under the Laws of North Carolina — to serve said Wayne Agricultural Works as servants and laborers, which contract was then in force and subsisting, to unlawfully .leave the service of the said Wayne Agricultural Works (the employers aforesaid of the said servants Will Humphrey, Sam Womble and Wayland Tutor), against the form of the statute in such cases made and provided, and against the peace and dignity of the State.</p> <p>“And the jurors aforesaid, upon their oath aforesaid, do present, that the said H. L. Howard and L. B. White, on the day and year aforesaid, in the county aforesaid, unlawfully, willfully and knowingly did harbor and detain in their own service Will Humphrey, Sam Womble and Wayland Tutor, servants of the Wayne Agricultural Works, a company aforesaid incorporated under the laws of North Carolina, which servants had theretofore left the service of the said Wayne Agricultural Works, their employers, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.”</p> <p>Upon the trial of his plea of not guilty, it was admitted that the Wayne Agricultural Works was an incorporated company, and that the three employees alleged to have been enticed from its services were under twenty one years of age and had not been bound as apprentices, but were serving under a contract made by each of them with the company.</p> <p>It was in evidence that these boys were working in the foundry as moulders, and had been for eleven months, and had agreed to remain for three years; that they left August 17th, 1889, up to which time they were paid their wages; that, in a conversation afterwards, defendant said to the secretary of the company, “I have employed all of your men, and I am going to employ others as soon as you get them, and I will pay them more wages than you will pay them. We are going to prevent the Wayne Works from making certain goods that they have a legal but no moral right to make”; and that the young men went off with him; that the boys had been notified of an advance in their wages, to take place in September; that the defendant is in the employ of S. R. White & Bro., who carry on a foundry at Norfolk.</p> <p>A witness for defendant testified that, on behalf of the company, he employed the boys, who did not agree to remain for any specified time, and that their wages should be increased évery six months.</p> <p>There was much other testimony offered, which, as not material to the present appeal, is not repeated.</p> <p>The defendant objected that, as the persons enticed away were under age and could make no binding contract, and the case does not come within the terms or purposes of the-act, and as the infants could lawfully leave the service, the defendant could lawfully advise them to do so.</p>

<p>Amendment — Finding Indictments — Record—Arresting Judgment — Appeal from Inferior Court.</p> <p>This was an appeal from the judgment of MacRae, J., rendered at Spring Term, 1889, of Edgecombe Superior Court, arresting a judgment in the Inferior Court.</p> <p>It appears by the record that at August Term, 1888, of the Inferior Court of Edgecombe County, the grand jury returned into Court an indiclment, whereih and whereby Alice Harrison, the present appellee, is charged with “attempt to poison,” and on the back thereof is the entry, “ a true bill.”</p> <p>At the January Term, 1889, of that Court, the said Alice Harrison pleaded to that indictment, “Not guilty.” On the trial at the same term, the jury rendered a verdict of guilty. Whereupon she presented before the Court her affidavit, stating, on information, “that the fact has come to her knowledge since the trial of the said cause, that the grand jury never acted upon the bill of indictment upon which she was tried, and hence, no true bill was found against her”; and also the affidavit of Thomas E. Lewis, wherein he says, “that he was foreman of the grand jury of the Inferior Court of Edgecombe County at and during the entire August Term, 1888, and presided over and was present during all the deliberations of said grand jury, and no bill of any kind was acted on by said grand jury against Alice Harrison, and no true bill was returned by the grand jury in such cause; especially no hill was found charging the defendant with attempt to poison Georgia Redman, and no witnesses were examined by the grand jury in said cause”; upon the same, she moved the Court to amend the record of the August Term, 1888, so as to show that the said indictment was not returned ‘ a true bill/ nor acted upon by the grand jury.” The Court ruled that the motion was not in apt time, and declined further to consider the said motion. The defendant excepted.</p> <p>The defendant then “moved in arrest of judgment, that there had been no bill of indictment found by the grand jury; that there had been no legal trial; that the Court had no jurisdiction to sentence the defendant, as she had not been tried on a bill of indictment found by the grand jury.” The Coürt denied the motion, and the defendant excepted.</p> <p>The Court gave judgment against her and she appealed to the Superior Court, and that Court gave judgment, whereof the following is a copy: “It appearing to the Court, from the affidavit of the foreman of the grand jury, that no bill of indictment was found against the defendant, it is therefore ordered and adjudged that the judgment in the action be arrested. Let this be certified to the. Inferior Court.” Judgment arrested.</p> <p>From that judgment, the Solicitor for the State appealed to this Court.</p>

Appeal— Transcript— Certiorari. This was a criminal action, commenced in the Court of a Justice of the Peace and tried before Boykin, J., at Spring Term, 1889, of Washington Superior Court. The case is stated in. the opinion.

<p>While the provisions, of the statutes fixing the number of jurors to be drawn by the County Commissioners is directory, and an indictment will not he quashed for failure to comply with them particularly, where it does not appear that such failure was corrupt, yet they are very essential to the impartial administration of justice, and their non-observance is the subject of censure, if not punishment.</p>

New Trial — Discretion—Exception, When made. This is a CRIMINAL action, which was tried before Mac-Rae, J., at September Term, 1889, of Pitt Superior Court. The indictment charges the prisoner with the crime of burglary. He was tried upon his plea of not guilty, and the jury rendered a verdict of guilty in the second degree,, as allowed by the statute (Acts of 1889, ch. 434).

Jurors, Qualification of — Motion to Quash — Statute—Discretion — Appeal. Held: conceding that the said juror was at the time a party to such suit, the motion was not made in apt time, but should have been made before the prisoner was arraigned and pleaded. The other material facts are stated in the

Trial — Removing Jury from Court Room — Discretion—Evidence — Res gestee — Public Holidays — Indictment—Statute— Constitution. This an Indictment for Murder, tried before Bynum, J., at February Term, 1889, of Guileord Superior Court. The facts are stated in the opinion.

<p>Insanity — Homicide—Judge’s Charge.</p> <p>This was an Indictment for Murder, tried before BynumT J., at the March Term, 1889, of Alamance Superior Court. The defendant was indicted for the murder of Abel Rippy. He plead “not guilty,” admitted the killing, and relied upon the defence of insanity.</p> <p>Only so much of the testimony and the ruling of his Plonor are here stated as is necessary to the understanding of the points passed upon by this Court.</p> <p>It was in evidence that the prisoner shot his father with a gun just before “sundown” on Friday, the 1st day of October, 1888. The homicide was committed at some haystacks, near the dwelling-house of the deceased. A witness for the State, a brother of the prisoner, testified that the prisoner was about thirty-five years of age; that “he stayed in the house of the deceased some of the time, but generally stayed in a cabin on the premises, some five hundred yards away from the scene of the homicide, with a crippled brother, named Benjamin Rippy; that he had seen prisoner almost every day for eighteen months preceding the homicide, and had not, in that time, seen him sober; that prisoner had been away a day or two, and had returned to the cabin of his brother, a while after dinner, on the day of the homicide, and then stated the circumstances under which the killing was done, showing that it was unprovoked by the deceased. He stated that prisoner had a brother and sister who were crazy, and that he was drunk at the time.</p> <p>The defendant introduced Benjamin Rippy, the crippled brother who occupied the cabin, who testified that defendant had stayed with him most of the time in the cabin; that he had been two days and three nights away, and came back two or three hours by sun on the day of the homicide, and “had no sense; sat flat down' on the ground, in the yard, his eyes just dancing; I said to him, ‘you’re got no sense;’ told him to come in the house; he said, ‘I feel bad’; I asked him what was the matter-riie didn’t say anything; I had morphine — have been afflicted with rheumatism for ten years, and take it to ease pain; I had given it to defendant before and it put him to sleep'; I told him better have medicine, and gave him some (showing how much); he lay down on bed ten or fifteen minutes and got up; I gave him more morphine (showing how much); I gave it to him because he had no sense, and I thought it would make him go to sleep; he went off;- I didn’t see what he carried, because I can’t turn my head; I heard a gun; defendant came back.”</p> <p>Several witnesses testified that, in their opinion, the prisoner was insane at the time of the homicide. They described his appearance and conduct in detail. There was also evidence that several of prisoner’s ancestors had been insane.</p> <p>Dr. G. W. Long was introduced for the defence, and, having qualified himself as an expert, said that he had heard the testimony of all the witnesses in the case; that he noted the testimony of Benjamin Rippy as to the quantity of morphine he gave defendant a few hours before the homicide; that the quantity as indicated by said Benjamin was an overdose, and its effect would be to produce wildness and insanity until the person should give in and sleep should intervene, and the longer sleep was deferred the more pronounced and excessive the wildness and insanity would become. This witness also testified to the effect of excessive use of alcohol on the brain, and that it was calculated to produce insanity; that sometimes such insanity was temporary, and known as mania potu, or delirum tremens, and sometimes it became permanent; that hereditary insanity is recognized in medical science, and that a person whose blood was tainted with insanity would be more liable to become insane from the excessive use of intoxicants or from an overdose of morphine.</p> <p>I)r. W. G. Stafford was introduced for the defence, and, having qualified himself as an expert, testified that he had been present and had heard and gave particular attention to all the testimony in this case. This witness also testified as to the effects of long and excessive use of alcohol upon the brain, and also of the effects of morphine when given in an overdose, and said that the quantity testified to by Benjamin Rippy was excessive and would produce insanity unless sleep very soon intervened.</p> <p>There was testimony upon the part of the State tending to show the sanity of the prisoner.</p> <p>Several instructions on the question of insanity were asked of the Court—</p> <p>“6. That if the jury shall believe that the prisoner, at the time of the homicide, was in a state of mind that rendered him incapable of comprehending the criminal character of his act, and that his incapacity was the'result of an overdose of a drug he had taken, then they should acquit.</p> <p>“7. That if the jury believe the prisoner subject to a tendency to insanity, and that, because thereof, extraordinary effects resulted from intoxication, of which he was ignorant, and that he was thereby rendered incapable of comprehending the criminal character of the act, they should acquit.</p> <p>“ 8. That if the prisoner, at the time of committing the homicidal act, was suffering from delirium tremens, although occasioned wholly by strong drink, he should be acquitted.”</p> <p>His Honor refused to instruct the jury as requested, and instructed and charged as follows:</p> <p>“Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible, criminally, until the contrary is proven to the satisfaction of the jury; and, to establish a defence on the ground of insanity, it must be proven to the satisfaction of (he jury that, at the time of committing the act, the defendant was laboring under such a defect of reason from disease of mind as not to know the nature of the act he was doing, or, if he did know it, that he didn’t know what he was doing was wrong. Voluntary drunkenness is no excuse for crime. The.law recognizes the existence of a form of diseased mind known as delirium tremens, produced by excessive use of stimulating drink, and if the jury are satisfied that the defendant was so far insane as not to know the nature of the act he committed at the time he committed it, nor whether it was right or wrong, he would not be guilty, although such insanity be delirium tremens, and produced by the voluntary use of intoxicating liquor. Insanity is a complete defence to all criminal acts committed while under its influence, whether such insanity be permanent or temporary, and from whatever cause produced.”</p> <p>The prisoner excepted. There was a verdict of guilty, and judgment, and the prisoner appealed.</p>

<p>1. Upon a trial for' larceny, it is competent, upon the question of identity, to show that other property stolen at the same time, though not charged in the indictment, was found in the possession of the defendant.</p> <p>2. Where intent is of the essence of the crime charged, in order to show guilty knowledge, it is not erroneous to receive evidence of different offences, but of the same character and connected with that alleged in the indictment.</p> <p>3. Where several articles are stolen at the same time, or stolen in the progress of a series of acts, so connected and continued that they form but one transaction, but one larceny is committed, and an acquittal or conviction upon an indictment charging one, or only a portion of the stolen articles, will be a good bar to a prosecution for the remainder.</p> <p>4. It is competent to show that a declaration made by one charged with larceny, made at the time of his arrest and the finding of the stolen goods in his possession, in respect to the manner in which he obtained such possession, is false.</p> <p>5. Where the record stated that the persons impaneled as grand jurors— among whom was the one appointed foreman — were “ duly drawn, sworn, and the Court having appointed J. P. foreman, are charged,” &c.: Held, that it sufficiently appears that the foreman had been duly drawn, and the proper oath had been administered ' to him.</p> <p>6. The recital in an indictment that “the jurors upon their oath present,” &c., raises a presumption, when accompanied by the endorsement of “a true bill” signed by the foreman, that it was duly returned and presented in open Court, and proof to the contrary can only be heard on plea in abatement made in apt time.</p> <p>7. Where the record recited that a regular term of a Superior Court was opened and held Wednesday, instead of Monday, fit' the week fixed by the statute, it' will be presumed that the Sheriff had duly opened the Court and adjourned it from day to day, as provided in' The Code, § 926.</p>

Special Verdict — New Trial. This is a criminal ACTION, which was tried at May Term, 1889, of Guilford. Superior Court, before Bynum, /., upon appeal from a Justice of the Peace. Upon a special verdict returned by the jury the Court adjudged the defendant not guilty, from which the State appealed.

Oysters — Statute, Construction of. This was a criminal actioN, tried on appeal from a Justice of the Peace, before Shipp, J, at Spring Term, 1889, of Carteret Superior Court. The trial was on the warrant of a Justice of the Peace, issued under section 3393, last clause of said section, contained in ch. 43, vol.

Master and Servant — Parent and Child — Enticing Servants. This is a CRIMINAL action, which was tried before Bynum, J., at August Term, 1889, of Lenoir Superior Court. The defendant is charged in the indictment with a violation of the statute (The Code, §3119).

Secret Felonious Assault — Statute—Verdict. The defendant was indicted for Secret and Malicious Assault with intent to kill (under ch. 32, Laws of 1887), and tried at the August Term, 1889, of the Superior Court of LbNOIE County, before Bynum, J. The prosecutor and another witness were examined for the State. No testimony was offered for the defendant.

“Prejudice” — Judges—Evidence—Statute—Discretion. Civil ACTION, tried in the Criminal Court of New HaN-oveb, County, at September Term, 1889, Meares, J., presiding. The defendant in the action was examined as a witness for the State in a criminal action pending in the Criminal Court of the County of New Hanover, wherein the defendants were charged with the crime of larceny.

Assault — Evidence. CRIMINAL action, tried in the Superior Court of Robeson County, at January Term, 1889, Merrimon, J., presiding.

<p>Indictment — Election of Counts — Deadly Weapons — Serious Injury — Jurisdiction—Former Conviction.</p> <p>This was an Indictment for an Assault and Battery, tried at the January Term, 1889, of the Superior Court of Ron-ESON County, Merrimon, J., presiding.</p> <p>There were two counts in the indictment. The charge in the first count was, “ that Eli Phillips and Daniel Phillips, late of * * * &c., in and upon one W. R. Butler with a certain deadly weapon, to-wit, with a dub, unlawfully,” &c. In the second count it w'as charged, “that said Eli Phillips and Daniel Phillips, on the day and year aforesaid, &c., * * * in and upon one W. R. Butler, unlawfully did make an assault upon him, the said W. R. Butler, and then and there did beat and wound, and thereby seriously damage and injure, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>'Phis indictment was found within less than six months after the assault was committed. But it was also admitted that, previous to the finding of this indictment, the defendants had been tried, convicted before a Justice of the Peace, and punished by the payment of a fine of thirty dollars and costs on a charge of a simple assault, for the same offence for which they were tried in 'this case.</p> <p>The defendants pleaded former conviction of a simple assault before the Justice of the Peace/and not guilty.</p> <p>The Court refused to give the special instructions asked by the defendants’ counsel, and deféndants excepted.</p> <p>The Court instructed the jury that if they believed that Butler was injured by the defendants, as testified to by himself, Bryan, and the other witnesses, they should find the defendants guilty.</p> <p>Verdict, guilty.</p> <p>The defendants moved in arrest of the judgment because the second count in. the bill, to which alone the testimony was applicable, was defective in that the extent of the injury done to Butler was not therein alleged. The Judge refused to arrest the judgment, stating to counsel that, in his opinion, the first count was sufficient to sustain the verdict; that there was enough alleged in the first count to give the Superior Court jurisdiction, and the variance between the allegations of the first count and the proof was, at most, merely technical; that the evidence sustained the first count ’in its general design and purport and that this was enough; that it was clear that the Justice of the Peace had no jurisdiction, and that his proceedings in the case amounted to nothing. Defendants excepted.</p> <p>The Court gave judgment against the defendants, and they excepted and appealed to this Court.</p> <p>The’ evidence, prayer for instruction and exceptions are sufficiently stated in the opinion of the Court.</p>

Larceny — In dictment — Jurisdiction. CRIMINAL ACTION, tried at July Term, 1889, of CUMBERLAND Superior Court, Connor, J, presiding. The defendant was indicted for the larceny of ten gallons of whiskey. The property was laid in one W. G. Johnson.

Embezzlement — Public Officers — Statute—Indictment—Malfeasance. This is a CRIMINAL action, which was tried at August Term, 1889, of Iredell Superior Court, Merrimon, J., presiding. There was a verdict of guilty, and from the judgment pronounced thereon the defendant appealed. The assignments of error, and the facts necessary to an understanding of the questions decided, are stated in the opinion.

Trial by Jury — Judge’s Charge — Rape. upon circumstances of fact which attended this case; for instance, that if the witness be of good fame, if she presently discovered the offence, if the party accused fled for it — -these, and the like, are concurring circumstances which give-greater probability to her evidence; but, on the other side, if she concealed the injury for any considerable time after she had an opportunity to complain; if the place where the-act alleged to…

Verdict, Special — Indictment—Presentment—Statute of Limitations— Grand Jury.

Homicide — Malice—Judge’s Charge— Trial. Indictment for Murder, tried before Merrimon, J., at Pall Term, 1889, of Montgomery Superior Court.

<p>Evidence— Witness — Harmless Error.</p> <p>Indictment for Fornication and Adultery, tried before Gil-mer, J., at September Term, 1889, of Wilkes Superior Court.</p>

Grand Jury — Presentment—Residence—Irregularity in Drawing Jurors — Indictment.

<p>Larceny — Evidence, Sufficient to Support Verdict.</p> <p>Indictment for Larceny and Receiving, tried, before Arm-field, J., at Spring Term, 1889, of Watauga Superior Court.</p> <p>A true bill was returned against Sherman Brooks, Henry Eller, Linville Eller, Henry Brooks, Coon Eller and George Eller, but only the lust- two were on trial. The charge was for larceny of coffee, the property of one S. V. Cox, and for receiving it, knowing it to have been stolen.</p> <p>It was in evidence that Cox’s store liad been broken open and the coffee and other articles stolen; that some of the articles having been found concealed in the woods, near the store; that, a few days after, a guard was posted on the road leading from the place of concealment, and that night five men came along the road from that direction, three of whom were carrying sacks of coffee. When halted, they dropped the coffee and ran, and a witness testified that the coffee was that which had been stolen from Cox. One of the witnesses testified that he took two of the men to be Henry Eller and Sherman Brooks, and another was a tall man, as was Lin-ville Eller. Another witness testified that he thought he identified Coon Eller, Iienry Eller and Sherman Brooks as three of the party who, when halted that night, dropped the stolen coffee and ran off. Lie could not identity the other two.</p> <p>It was in evidence that George Eller and Coon Eller, these defendants, forfeited their bond for appearance at Court, and, when capiases were issued, could not be found ; that, after the death of Henry Eller,.who had been killed while resisting arrest, these defendants came in and surrendered themselves.</p> <p>Another witness testified that, two and a half or three years before Cox’s store was robbed, George Eller, Henry Eller, Linville Eller and himself had an agreement to break into that store, but he left the State soon thereafter without it being done.</p> <p>It was in evidence that George Eller and Coon Eller were single men, and lived with their father, and Sherman Brooks and Linville Eller lived in their neighborhood ; that Henry Eller, Linville Eller, Coon Eller and Jacob Eller were brothers. The same witness testified that Sherman Brooks was some kin to the defendants. To this last statement defendants excepted.</p> <p>Another witness testified that, the day before the coffee was captured, he saw Henry Eller and Sherman Brooks going in the direction of Cox’s store, and in a mile and a half of it, one haying a sack and the other a rope. To this evidence the defendants excepted.</p> <p>Another witness testified that, on the night the coffee was captured, he was along and recognized Sherman Brooks, Henry Eller and, he thought, Linville Eller.</p> <p>At the close of the evidence, the defendants’ counsel asked the Court to instruct the jury that there was not sufficient evidence to justify a verdict of guilty. The Court declined, and the defendants excepted.</p> <p>The Court charged the jury that the}' were the sole judges of the weight of the evidence; that the acts of Henry Eller and Sherman Brooks were not to be taken as evidence against Coon Eller, but might be considered with reference to the guilt or innocence of George, if the jury believed the testimony as to the former agreement between George Eller and others to rob Cox’s store; otherwise, not.</p> <p>To this instruction defendants excepted. Verdict of guilty. Judgment, and defendants appealed.</p>

Nuisance — Bawdy-house—Disorderly House — Evidence. This is a CRIMINAL action, which was tried at January Term, 1889, of Catawba Superior Court, Clark, Jr, presiding^ The indictment charges the defendant in the first count with keeping a bawdy-house, and in a second count with keeping a disorderly house.

Nuisance — Mill-dam and Pond — Proximate Cause — Posses-sio7i — Statute of Limitations — Indictment—Eoidence. This is a criminal ACTION, which was tried at November Term, 1889, of Iredell Superior Court, Connor, J., presiding.

Homicide — Murder—insanity—Drunkenness—Judge’s Charge. This was an Indictment, charging the prisoner with the Murder of Thos. Edge, tried at Spring Term, 1889, of Yancey Superior Court, Armfield, /., presiding. John W. Wilson, a witness for the State, testified: “I am a cousin of the prisoner. On the 22d of last September I was at Edge’s store, in Yancey County, at a shooting-match for a turkey belonging to prisoner. Deceased was there.

Indictment — Arrest of Judgment — Amendatory Statute— Burglary — Felonious Intent. Indictment for Burglary, tried at Spring Term, 1889, of Rutherford Superior Court, Clark, J., presiding. The indictment charged the prisoners with the crime of burglary of a dwelling-house. Thej* severally pleaded not guilty. On the trial of this plea, the jury rendered a verdict of guilty. They moved in arrest of judgment, assigning as cause that referred to in the opinion of the Court.

Costs — Criminal Proceedings — Witnesses — Constitution — Discretion. This was a Motion, by the defendant, to ,tax the county of LINCOLN with the fees and mileage of a number of witnesses,, summoned for the defendant, heard before Connor, J., at-Pall Term, 1889, of that county. His Honor refused to grant the motion, and the defendant and the witnesses named appealed.

Larceny — Robbery—Intent. Indictment for Robbery, tried at Fall Term, 1889, of Cataivba County Superior Court, Shipp, presiding. There was a verdict of guilty, and from the judgment thereupon the defendant appealed.

Slander — “ Innocent Woman ” — Evidence. This is a CRIMINAL action for slander, tried at October Term, 1889, of the Cleveland Superior Court, Connor, J., presiding. There was evidence tending to prove the utterance of the slanderous words and that they were false.

Indictment — Election of Counts — Physicians—Druggists. This was an Indictment against a Physician (drawn under section 4, chap. 215, Laws of 1887), for giving a false and fraudulent prescription for liquors, tried at the Fall Term? 1889, of the Superior Court of TRANSYLVANIA County, before Clark, J. There were three counts in the indictment.

<p>The fact that a grand jury made a presentment of one of those offences of which a Justice of the Peace has original exclusive jurisdiction — if exercised within six months after its commission — before the period when the concurrent jurisdiction of the Superior Courts arose, will not defeat the jurisdiction acquired by the latter on an indictment preferred after the expiration of the six months.</p>

Fornication and Adultery — Evidence—Examination of Witness.. Indictment for Fornication and Adultery, tried before Moore, J., at July Term, 1889, of Buncombe Criminal Court. Verdict, judgment, and appeal by defendants. It was in evidence that the same defendants had been convicted and sentenced for this same crime at July Term, 1888, of Buncombe Inferior Court.

Escape— Officer — Evidence—Indictment—Judge’s Charge. This is an INDICTMENT, tried at Fall Term, 1889, of Jackson Superior Court, Clark, J., presiding.

Disposing of Mortgaged Property — Indictment—Statute. This is a criminal ACTION, tried at Fall Term, 1889, of Haywood Superior Court, Clark, J., presiding.

Appeal — Secret Assault — Aiding and Abetting — Judge's C flarge — Eviden ce. This was an indictment for a Secret Assault With Intent to Kill (drawn under ch. 32, Laws of 1887), tried at the Fall Term, 1889, of the Superior Court of Clay County? before Ciarlo, J. Of the four defendants on trial, E. H. Chastain and J. P. Chastain were found guilty.

Forcible Entry. This is an Indictment for Forcible Entry, tried at Fall Term, 1889, of Polk Superior Court, Merrimon, /.. presiding. The jury returned the following special verdict: “ One Perry Bomer' was the tenant occupying the house of T. T. Ballinger and others, and about the first day of January, 1889, went to said Ballinger and told him that he was going to move, and that he (Ballinger) might come and take possession of the house.

Larceny — Indictment— Ownership — Evidence— Corporation. The defendánt was tried before Clark, J., at Fall Term,. 1889, of Swain Superior Court, on an indictment charging the larceny of a barrel of kerosene oil, the property of “The Richmond and Danville Railroad Company.” In the course of the trial, the State introduced a witness who testified “ that he was the agent for the Richmond and • Danville Railroad Company at Jarret’s Station, in said county; that said company was,…

<p>Indictment — “ Against the Peace and Dignity of the State.”</p> <p>Indictment for Incest, tried before Connor, J., at November Term, 1889, of Iredell Superior Court.</p> <p>The defendants were found guilty by a jury, and, on motion of their counsel, the judgment was arrested, on the ground that the usual concluding words, “ against the peace and dignity of the State,” were omitted from the indictment.</p>