Volume 105 — North Carolina Reports

This was an action, tried before Boykin, J., at February-Term, 1889, Beaufort Superior Court. The action was begun before a Justice of the Peace in-1888, on a joint bond signed by defendant and one Jordan,. June 10,-1867, for the sum of $90.50, and thence by appeal came to the Superior Court. At the trial in the Superior Court the execution of the bond was admitted.

This is a civil ACTION, which was tried before Boykin, J., at September Term, 1889, of WarreN Superior Court. The suit was upon a note, under seal, executed by the defendant to plaintiff’s testatrix on 4th August, 1856. There was a payment of $100, endorsed June 1st, 1866.

This was a civil actioN, tried before Boykin, J., at Spring Term, 1889, of the Superior Court of Hertford County.

This was a civil ACTION, tried at February Term, 1890, of Beaufort Superior Court, before Boykin; J. This action was brought by the plaintiff, as assignee of W. F. Kornegay & Co., against the defendants Styron & Duncan, the builders of the vessel presently to be mentioned, and the defendant Brown, who afterwards purchased that vessel, claiming mediately under his co-defendants.

<p>Deeds — Construction—Husband and, Wife■ — Constitution— Heirs— Warranty — Fee-simple.</p> <p>1. Prior to the present Constitution, a deed by husband to wife, founded on a valuable consideration, was upheld in equity.</p> <p>2. A deed which conveyed “to C. D. a certain parcel of land” (describing it) contained a clause as follows: “And I do further agree to warrant and defend the title of the same to her, the said C. D., her heirs or assigns forever,” conveyed a fee-simple estate.</p> <p>3. Unless this construction is given, the words “to her heirs,” and the term “forever,” would be meaningless.</p> <p>4. Disorderly arrangement and punctuation may be disregarded when necessary to get the intention of the parties.</p>

<p>This was an Action for the Possession of Land, brought against the defendant McKinney, tenant in possession, and defended by his landlord, T. B. Rollins. It was tried at November Term, 1889, of the Superior Court of Harnett County, before Armfield, J.</p> <p>The issues and responses were:</p> <p>1. Was the deed from C. H. Cofield to T. B. Rollins made to hinder, delay, or defraud creditors of C. H. Cofield? Ans. Yes.</p> <p>2. Was T. B. Rollins a purchaser of the land in controversy for value, and without notice of any fraud in said purchase? Ans. Yes.</p> <p>8. Is plaintiff the owner in fee of said land and entitled to the possession thereof ? Ans. No.</p> <p>4. What damage has plaintiff sustained by reason of the detention of said land by defendant? Ans. None.</p> <p>The plaintiff and defendant Rollins both claimed title to the locus in quo under one C. H. Cofield — the plaintiff by mesne conveyances from the purchaser at an execution sale under a judgment in favor of F. F. Blalock against Cofield, which was obtained at Spring Term, 1882, of Plarnett Superior Court, and docketed therein February 24, 1882. Summons issued in the Blalock suit January 13, 1880, and was served on defendant in that case February 4, 1880; execution issued on the Blalock judgment 28th of February, 1882, under which the Sheriff of Harnett County levied on the locus in quo and returned that execution without sale. An alias execution was issued under which, on February 21, 1883, the Sheriff sold, when W. E. Murchison became the purchaser, and transferred his bid to F. McK. Murchison, to whom the Sheriff of Harnett County executed a deed. F. McK. Murchison, prior to the commencement of this action, conveyed a deed for the locus in quo to the plaintiff Nixon.</p> <p>The defendant Rollins claimed title under Cofield by a deed to him, dated May 1, 1880, and registered June 24, 1880, prior to the docketing of the Blalock judgment against Cofield, and this deed the plaintiff read in evidence before resting his case.</p> <p>The plaintiff, after introducing the judgment and execution in the Blalock suit, under which the locus in quo was sold and purchased by his grantor, offered both parol and documentary evidence tending to prove that on May 1st, 1880, Cofield was insolvent, and tending to attack the deed from him to the defendant Rollins as being fraudulent and intended to hinder, delay and defraud the creditors of Cofield. The plaintiff also offered evidence that the defendant Rollins was, at the time of taking the deed from Cofield, his son-in-law, and tending to show that he had opportunities of knowing his insolvent condition; and that the financial embarrassment of Cofield became publicly known in Harnett County before the execution of the deed to Rollins.</p> <p>The defendant claimed to be a bona fide purchaser for value and without notice of any fraudulent intent on the part of Cofield, and offered evidence tending to establish this defence; and after plaintiff had introduced his evidence and rested, he introduced the deposition of Cofield — who died since the commencement of this action — which had been taken in behalf of the defendant. In this deposition Cofield testified: “About one year after I conveyed the 175 acres to T. B. Rollins I sold to him a 52-acre tract for sixty dollars, and received the cash from T. B. Rollins, and said sale was not made in fraud of Mrs. Fannie Blalock or any other person, but was bona fide and for full and valuable consideration, it being land of very inferior character, being very hilly, poorly timbered, light and inferior soil, and, according to my opinion, it sold for its value, and that it would not have brought more at public sale for cash.”</p> <p>Plaintiff objected to the reading of the deposition to the jury, because the witness undertakes to give in evidence conclusions of law,such as saying the deed to Rollins was “bona fide, and not made in fraud of Mrs. Blalock or any other person,” &c., whereas it was only competent for him to speak of the facts from which the character of the transaction might be inferred by the jury. Objection was overruled, and the whole of the deposition was read to the jury, and plaintiff excepted.</p> <p>The defendant was introduced as a witness in his own behalf, and plaintiff objected to his being allowed to testify as to any transaction or communication between him and Cofield. The Court overruled plaintiff’s objection, and Rollins testified, among other things,.as follows:</p> <p>“ I am a son-in-law of C. H. Cofield. I gave him sixty dollars cash for the land (locus in quo). I think I gave full value. It was a real transaction.”</p> <p>Rollins was further permitted, notwithstanding plaintiff’s objection, to testify as to his own intention as follows:</p> <p>“ It was not my intention to defraud anybody.”</p> <p>Rollins also testified that he had no knowledge of any fraud on the part of Cofield, and no knowledge of the Bla-lock suit until during its pendency, and after he had purchased this land; that he resided in Wake County at the time, and he allowed Cofield to remain upon the land because he was old and poor and was his father-in-law, but there was no prior stipulation or arrangement to that effect. There was no agreement for rent, and Cofield paid none.</p> <p>There was testimony of other witnesses that $60 was a fair price for the land.</p> <p>Plaintiff excepted.</p> <p>On cross-examination, a witness for plaintiff, in response to questions put to witness by defendant’s counsel, testified, without objection, that Cofield was a member of the Legislature, County Commissioner and a Director in the Penitentiary Board, and stood very high.</p> <p>On re-direct examination of this witness, the plaintiff offered to prove in reply to defendant’s cross-examination that, on a former trial between Nixon, the plaintiff, and Cofield and defendant Rollins, about another tract of land, it was testified that said Oofield had forged a deed.</p> <p>Defendant objected. The Court sustained the objection, and plaintiff excepted.</p> <p>This witness, however, was allowed to state in response to a question on the re-direct examination, that he did not think that Cofield possessed that high character at the latter part of his life.</p> <p>There was no exception to the charge. After verdict, plaintiff moved for a new trial on the foregoing exceptions to evidence. Rule for new trial discharged. Judgment was rendered in favor of defendant for costs, from which plaintiff appealed.</p>

<p>Civil action, tried at February -Term, 1889, of Beaufort Superior Court, Boykin, J., presiding.</p> <p>The plaintiffs sued to recover the possession of the tract of land described in their complaint.’</p> <p>The defendant admitted he was in possession, but in resistance to plaintiffs’ demand set up a parol contract between himself and the ancestor of the plaintiffs, whe eby the latter agreed to sell and convey the land to the former for the sum of one hundred and twenty-five dollars; that, by virtue of this agreement, he (defendant) had entered, made improvements and paid the greater portion of the purchase-money. He produced in evidence — the plaintiffs objecting — the receipts and plat of the survey set out and referred to in the opinion of the Court, and demanded judgment that the plaintiffs, upon payment of any balance which might be found due upon the contract of sale, be directed to convey; or, if he was not entitled to such conveyance, that the amount he had paid thereon, and the value of the improvements he had made, be ascertained and declared a lien, &c.</p> <p>The issues submitted by the Court — tlie plaintiffs excepting — with the responses thereto, were:</p> <p>1. Did Gilbert Hale contract and agree in 1872 or 1873 to convey to the defendant the land described in the complaint, and did he have the same-surveyed, marked and defined, and put the description thereof in writing, and has the defendant been in possession under said contract up to the beginning of this action? Answer, ‘‘Yes.”</p> <p>2. Did Gilbert Iiale execute and deliver to the defendant the paper-writing set forth in the answer? Answer, “ Yes.”</p> <p>3 AVhat amount did the defendant agree to pay Gilbert Hale for the land in controversy? Answer, “ $125.”</p> <p>4 What amount, if any, is due the said Hale on account of the purchase-money for the land? Answer, “ $10.”</p> <p>Thereupon the Court adjudged that the plaintiffs, upon the payment of the balance found to be due from the defendant, should convey to him the lands in controversy, from which plaintiffs appealed.</p>

This was an action brought to recover two cargoes of lumber seized by the defendant, who was Sheriff, by virtue of an attachment, and tried before Brown, J., at the Fall Term, 1889, of the Superior Court of Pasquotank County. The testimony was as follows: Calvin Conard testified as follows to contract, dated July 26, 1888: “I contracted in said writing to sellplaintiff 4,500,000 feet of lumber.

<p>Motion to reinstate case on docket.</p>

<p>Civil actioN, tried before Brown, J., and a jury, at Fall Term, 1889, of Pamlico Superior Court.</p>

This was a civil ACTION, heard before Connor, J., at November Term, 1889, Iredell Superior Court, on exceptions to referee’s report. The defendant, among other exceptions, excepted to certain evidence admitted by the referee. The Court sustained the. exception.

<p>Motion by plaintiff to retax the bill of costs so as to allow to the successful party the costs of printing his brief on the reargument.</p>

<p>Petition to Rehear — Duties of Counsel.</p> <p>1. The decision in Emry v. Railroad, 104 N. C., reaffirmed.</p> <p>2. The Court reiterates that it will rehear a case only for weighty considerations, and when the alleged error clearly appears.</p> <p>3. Observations by Merrimon, C. J., upon the duties and responsibilities of counsel.</p>

<p>Amendment — Jurisdiction—Exception on Appeal.</p> <p>1. “Where a complaint in an action begun before the Clerk, as Probate Court, states matters properly triable in that Court, an amendment cannot be allowed in the Superior Court engrafting matters of which the latter Court alone has jurisdiction.</p> <p>2. When, without amendment in such case, matters are investigated! without objection, of which the Superior Court alone had jurisdiction, and judgment is rendered thereon, the implied consent does not confer jurisdiction, and advantage can be taken of the defect in this Court.</p> <p>3. When there is no exception taken except to the judgment, usually no case on appeal is necessary, and it is sufficient to file the exceptions thereto in ten days after judgment, as provided by Rule 27 of this Court.</p>

<p>Appeal from the ruling of Gilmer, J., at May Term, 1889, of CumberlaND Superior Court.</p> <p>The following is the statement of the case on appeal:</p> <p>“ This was a special proceeding, begun before the Clerk of the Superior Court of Cumberland County more than ten years since, calling the deft ndant Hodges, guardian, to an account and settlement with his wards, the plaintiffs above named. The guardian accounts of the defendant have been stated four times, and opportunity given each time for the parties to except to the same. The cause coming on to be heard before Gilmer, J., at May Term, 1889, the plaintiffs moved to strike from the file certain exceptions, which appear to have been filed on April 23d, 1889, during the interval between terms, and to confirm the report of referee. It appeared that the report of the referee had been made to January Term, 1889, and the defendant’s counsel notified that the same had been filed before the beginning of January Term.</p> <p>“His Honor, after hearing arguments on both sides, and after inspection of the exceptions of April 23d, and examination of the record, in the exercise of his discretion, allowed the motion of plaintiffs, and the defendant excepted. The defendant then moved for leave to file the exceptions of April 23d as of May Term, 1889, which motion his Honor, in the exercise of his discretion, refused, and the defendant excepted.</p> <p>“ There was a judgment rendered confirming the report in favor of the several plaintiffs for the several amounts due them. Appeal by defendant.”</p>

<p>This was a civil actioN, tried before Gilmer, J., at Fall Terra, 1889, of Alleghany Superior Court.</p> <p>Defendant appealed.</p>

This was a Proceeding for Contempt, instituted before the Mayor of the town of Troy, in Montgomery county, and came to the Superior Court by appeal from the Mayor’s Court, and was heard at Spring Term, 1889, of Montgomery Superior Court, before Brown, J. The defendants offered affidavits in the Superior Court tending to show that they were not permitted to file any answer in the Mayor’s Court, also affidavits lending to show that the publication which was made by them was…

<p>This was a civil'action, upon a case agreed, tried before Connor, J., at November Term, 1889, of Iredell Superior Court.</p> <p>The case is stated in the opinion.</p>

<p>Civil ACTION, tried before Shipp, J., at February Term, 1890, of Iredell Superior Court.</p>

, made at January Term, 1889, of Northamptok Superior Court, permitting a Sheriff to amend his return on an execution in an action against him for penalties on the said return, for being false and not “due and proper.”

This was an Action to Recover Real Property, tried at the August Term of the Superior Court of Stokes County (1889), Gilmer, J., presiding.

This was a civil ACTION, tried before Connor, J., at November Term, 1889, of Iredell Superior Court. Proceedings had been formerly instituted to foreclose a mortgage executed by A. A. Sharpe, deceased, to which his heirs at law were parties.

<p>This was a civil action, tried at the May Term, 1889, of the Superior Court of Iredell County, before Brown, J.</p> <p>The plaintiff claimed under a Sheriff’s deed, executed September 5, 3887. The Sheriff sold by virtue of an execution issued on a judgment against the defendant, rendered on a cause of action cx contractu, that arose prior to the year 1867. But while the execution was in the hands of the Sheriff, the defendant Walker paid to the plaintiff, in the execution of the principal and interest of the judgment, but no part of the costs, and took his receipt in form as follows :</p> <p>“Received of W. A. Walker one hundred and forty-nine foo- dollars in full payment of the principal and interest of the debt (not including costs) in the judgment of the Superior Court of Iredell County in the case of John F. Long and W. H. Cowan, administrators of W. F. Cowan, deceased, against G. W. Weir and wife, W. A. Walker and others. This 30th day of March, 1887.</p> <p>(Sig.) Wm. H. Cowan, Ex’r of W. F. Cowan.”</p> <p>The Court submitted, without objection, the issues herein set out, which, with the findings of the jury, are as follows:</p> <p>1. At the date of the execution sale, did the defendant occupy the lands described in the complaint as one farm and tract and reside thereon and cultivate and use the same as such? Answer, Yes.</p> <p>2. Was the principal and interest of the judgment and execution under which the lands were sold, paid to the plaintiff therein in full before the sale, and did he satisfy and discharge said principal and interest? Answer, Yes.</p> <p>3. If so, did plaintiff Long have notice at time and before said sale that said principal and interest had been fully paid? Answer, Yes.</p> <p>4. What was the value of said lands at date of said sale ? Answer, $1,900.</p> <p>5. What is the annual value or rents of the part thereof called “ Luck” land? Answer, $45.</p> <p>6. What was the value of the part of said lands described in complaint called “'Walker” land? Answer, $1,450.</p> <p>After the issues were found by the jury, the plaintiff moved for judgment for the part of the land described in complaint as the Luck tract of land, plaintiff admitting that he was not entitled to recover the other part of the land known as the Walker land. Plaintiff also moved for judgment for rents of Luck land from date of purchase, September 5th, 1887. The plaintiff contended :</p> <p>1. That it was unnecessary to assign the defendant’s homestead because the judgment was rendered on a debt contracted prior to 1868.</p> <p>2. That plaintiff disclaiming as to the tract called the Walker tract, the defendant would have all he was entitled to under the constitutional provision, and that plaintiff would, in any event, be entitled to the tract called Luck tract.</p> <p>3. That although the jury find the second issue against the plaintiff, yet the costs remain unpaid, and that although said costs are admitted to have accrued since the year 1868, still they are an incident to the original debt.</p> <p>The defendant inherited the Walker tract of from 250 to 300 acres from his father, and bought the Luck tract of 50 acres, many years ago, and added to it. He lived on the Walker tract, and still lives on it; but for many years prior to the sale, and since he bought the Luck place, has used the two as one farm, had a single fence that enclosed the cultivated lands on both tracts, and had the two listed as one tract for taxation.</p> <p>There was judgment for the defendant, from w'hich plaintiff appealed.</p>

This was a civil, action to recover land, tried at February Term, 1889, of the Superior Court of Beaufokt County, before Boykin, J. His Honor being of opinion, upon the evidence introduced by plaintiff, that he was not entitled to recover, the plaintiff submitted to judgment of nonsuit and appealed.

<p>Appeal by plaintiff from an order of Philips, J., at September Term, 188S, of Davidsok Superior Court.</p>

This was an appeal by plaintiff from a judgment by MacRae, J., at December (Special) Term, .1889, of CUMBERLAND Superior Court, confirming the report of commissioners appointed to lay off dower.

<p>ActioN, tried before Bynum, J., and a jury, at November Term, 1889, of Lenoir Superior Court.</p> <p>The transcript was not filed before the call of causes from that district was concluded, and at the close of the call the counsel for appellee exhibited the certificate of the Clerk of Lenoir Superior Court showing the names of the parties to the action, the time when the judgment and appeal were taken, the name of the appellant, and the date of settling appeal, and moved, under Rule 17 of this Court, to docket appeal and have it dismissed.</p>

This was a civil action, begun before a Justice of the Peace, and tried before Graves, J., at February Term, 1890, of Lenoir Superior Court. From judgment dismissing the action, plaintiff appealed.

This was a civil action, tried at January Term, 1890, of the Superior Court of Durham County, before Armfteld, J. The plaintiff offered as a witness, Paschal Lunsford, who testified that he is Register of Deeds of Durham County, and there appears upon the books in his office a mortgage, registered and recorded by him on November 15th, 1888, purporting to be executed by the Durham Sash, Door and Blind Company to Washington Duke, the plaintiff.

<p>Corporation- — -Chattel Mortgage.</p> <p>Any conveyance or mortgage of its property executed by any corporation is void and of no effect as to the creditors of said corporation existing at the time of the execution of said deed or mortgage, and who shall commence' proceedings to enforce their claims against the corporation within sixty days after registration of the conveyance.</p>

This was a civil action, tried at the February Term, 1889, of the Superior Court of Guilpobd County, before Bynum, J. The second paragraph of the complaint was as follows: “That on the said 17th day of February, 1886, the plaintiff, coming from his usual place of business was walking upon track of the defendant’s North Carolina Division, as he has been in the habit of doing for several years without objection from the defendant, within the corporate limits of the city of…

This was a civil action, tried at the March Term, 1889, of the Superior Court of Orange County, before Bynum, J. The plaintiff is the… Held: and the jury first summoned, returned as their verdict that she “may not be an idiot.” This verdict was set aside by the Clerk and another jury was empaneled, who found that “said Elizabeth Berry is non comjios mentis and incapable of attending to her affairs.” The record of the Special Proceeding showdng these facts ■was first put…

, at October Term, 1889, Wake Superior Court, refusing a motion to re.-tax costs. This was a proceeding by the daughters, suing as next friends of Larkin Smith, to have him declared incompetent to manage his affairs, begun before C. D. Upchurch, Clerk of the Superior Court of Wake. Two juries having failed to agree upon a verdict, the clerk dismissed the petition and adjudged that the petitioners pay the costs.

<p>Actiox, before Arm,field, J, determined upon demurrer at November Term, 1889, FIarNEtt Superior Court.</p> <p>From judgment overruling demurrer, defendant appealed.</p>

Civil ACTION, tried before Graves, J, at Spring Term, 1888, of Bertie Superior Court Motion by appellant for a certiorari. Motion by defendant to dismiss the appeal. The facts appear in the opinion.

Civil actioN, tried before MacRae, J., at Fall Term, 1889, of Greene Superior Court. The defendant demurred to the complaint on the ground set out in the opinion. From the judgment overruling the demurrer the defendant appealed

<p>This was a civil ACTION, tried at the Nall Term, 1889, of the Superior Court of EdgecoMBk County, before Boykin, J.</p> <p>The plaintiff, in his first cause of action, allegtd that he was the owner of a portable steam-engine and boiler, which he was attempting to have drawn across defendant’s track by'two teams of oxen, when defendant’s servant negligently ran an engine and train over said portable engine and boiler. In the second cause of action, he alleged that it was the duty of the defendant, to keep up a certain crossing over its track, and defendant neglected to do so, in consequence of which said engine and boiler were injured in the atiempt to transport them over said road at said crossing.</p> <p>The defendant denied generally each allegation of the first cause of action, except the allegation as to the existence of the corporation, and set up contributory negligence. In answer to. the second cause of action, the defendant admitted the obligation to keep the crossing in repair, denied negligence and charged coi.tr.butory negligence.</p> <p>The issues and findings were as follows:</p> <p>1. Was the steam-engine and boiler mentioned in the complaint injured by the negligence of the defendant?</p> <p>Answer — Yes</p> <p>2. What damage has the plaintiff sustained?</p> <p>Answer — $600.</p> <p>The plaintiff claimed damages for the destruction of his portable steam-engine by the negligence of the defendant.</p> <p>George W. Harper, a witness for plaintiff, testified: “I was ginning cotton for Bullock last fall with a portable engine drawn by four oxen. On the 25th day of October, 1888,1 was driving the same, with the assistance of three men, from a point in Edgecombe to a point in Nash County, when I had occasion to cross the line of the defendant’s railroad track at a public crossing known as Trevathan’s Crossing. As I approached the crossing, I stopped the team and went upon the track to see if any train was coming from any direction; I could have seen a train more than a thousand yards in the direction of Battleboro; I have measured it since then, and a man standing on the track at theTrevathan Crossing can be seen by another standing on the track one thousand and seventy yards North of that point. I had been working in the neighborhood for some time, and knew the time the South-bound train usually passed that point; I had a watch with me that day, but did not look to see the time; I think the train was behind time this day, and I thought it had passed when I reached the crossing; I went upon the track to see if there was any train coming from anjr direction; frequently there were special trains. Neither seeing nor hearing any train, I then undertook to cross the track. The crossing was very bad; the approach to the track on the Edgecombe side was slightly elevated, and the rise from the level of the ground to the top of the railroad iron was about nine inches. The team pulled the first -wheels of the engine over .the nearest rail, and when they struck the further rail, and the hindmost wheels the first rail, the engine got stalled. I had no time to try and get the team over, because just at this time I saw the South bound train, coming from the direction of Battleboro, turn the curve one thousand and seventy yards distant, and I thought it best for me to run up the track and wave down the train. I at once ran up the middle of the track in the direction of the approaching train, wraving a red handkerchief over my my head. The train did not slacken in its speed until within about one hundred yards of the crossing, when the engineer jumped from the engine on the right and a colored man jumped on the left; after knocking the obstruction off the track the hindmost car stopped at the crossing. The oxen were in good order; they had only come about a mile that day, and I thought they could pull the engine across without much difficulty; they had often pulled out of worse places, and had frequently pulled over ‘railroad crossings.’”</p> <p>The plaintiff offered other testimony to the effect that the crossing was in bad condition; that the rise from the level ground to the top of the railroad iron was from six to eleven inches; that the crossing was, in effect, no crossing; that one of the witnesses had had occasion' to put planks in the crossing in order to haul cotton on, and had found it bad for crossing with light vehicles; that the engine weighed twenty-seven hundred pounds; that an engineer could have seen the team and engine stalled upon the track as soon as he turned the curve, which w7as estimated by one witness, who had not measured it, as from six to eight hundred yards; by another, who had stepped it, as eleven hundred and fifty yards; and by two, wrho had actually measured it, it was said to be one thousand and seventy yards; that as soon as the engineer turned the curve he could have recognized that the team and the engine upon the track were stalled; that when within about one hundred yards of the crossing, the engineer reversed the engine, applied all means to stop the train, and jumped from the engine.</p> <p>It was in evidence, on tho part of the defendant, from the testimony of the section-master of the defendant’s road, of the attorney of the road, who visited the crossing a few days after the accident, and of several other employes of the road, that the crossing in question was in good condition — as good as the other crossings upon the same section of road.</p> <p>It was testified to by the engineer in charge of the train, that as soon as he turned the curve he saw the obstruction upon the track, and the man running up the track waving his handkerchief; tint he had been >mining trains on the defendant’s road for seventeen years, and that he did not know whether the curve was two hundred or twelve hundred yards from the crossing; that he blew the regular signal at the whistle post, which was some three hundred or three hundred and fifty yards from the crossing; after that he bh w the cattle signal and then reversed the engine, and used every appliance to stop the train; that, seeing it was then impossible to stop the train, he jumped off the engine; that the train was equipped with the best appliances known to science, and the train could not have been stopped in less than three hundred and fifty or four hundred yards; was on schedule time and going thirty-five miles per hour. It was in evidence by the fireman that be called the engineer’s attention to the obstruction on the track when six hundred yards distant from it-.</p> <p>Counsel for the defendant requested the Judge to charge the jury—</p> <p>1. That in law, if the jury believed the evidence introduced in behalf of the plaintiff, he is guilty of contributory negligence and is not entitled to recover in this action.</p> <p>2 That when the engineer of defendant’s train first saw the ham of oxen and vehicle upon the railroad track, the law did not require him to stop or slacken the speed of the train until he realized the team of oxen and vehicle were stalled or could not get off the track.</p> <p>3. That if you believe the defendant’s engineer did all in-his power to stop the train, and at once, when he realized that the team of oxen and engine were stalled, the defendant was not guilty of negligence, and plaintiff cannot recover.</p> <p>4. That if the engineer, so soon as he saw the man on the track waving at him, did everything in his power to stop the train, the defendant was not guilty of negligence, and plaintiff cannot recover.</p> <p>The Court gave the third prayer, and, among other things, charged the jury—</p> <p>That it was required of the plaintiff, his agents and servants, that they should exercise due and proper caution in crossing, or attempting to 'cross, the defendant’s track, to learn whether there •were any approaching trains, and to notice the condition for safety of the railroad crossing. If the crossing was in such condition as to suggest to a man of ordinary prudence and caution, under all the circumstances of the case, and considering the distance at which approaching trains could be seen, the difficulty or danger of attempting to cross with such a team and such a burden, then it was their duty to forbear, and their entering upon the track under such circumstances would make the plaintiff guilty of contributory negligence; and if the engineer of defendant company, in the exercise of reasonable care, was unable to avoid the accident, then the plaintiff' would not be entitled to recover. If, when the engineer first discovered that the team and engine on the track were stalled (the plaintiff having entered upon the track under such circumstances as made him guilty of contributory negligence as abo\ e stated), he exercised reasonable care and made use of the means in his power to stop the train and avoid the accident, but failed to do so because the want of space or the down-grade of the road, then the defendant would not be liable. But, if the defendant’s engineer saw the team and engine stalled upon the track in full time to have avoided the accident by the reasonable-use of the means within his reach, but delayed too long their application, and accident thereby resulted, then the plaintiff is entitled to recover. The fact that plaintiff was chargeable with contributory negligence in entering upon the track, if you should so find, does not necessarily preclude the plaintiff from recovering; for notwithstanding the plaintiff’s negligence in going upon the track, he would still be entitled to recover, if the defendant’s engineer could have avoided the accident by the exercise of reasonable care, as before explained.</p> <p>The jury answered both issues in favor of the plaintiff. Motion for a new trial;' motion denied.</p> <p>The defendant assigned — for, 1st, Error in the refusal of the Court to give the instructions asked; 2d, Error in the instructions given.</p> <p>From the judgment rendered, the defendant appealed.</p>

Civil ACTION, tried at Spring Term, 1889, of Bertie Superior Court, before Montgomery, J. The plaintiffs brought this action to recover damages for alleged trespasses on their land, particularly described in the complaint.

Civil aotioN, tried at Spring Term, 1889, of Wilsok Superior Court, Armfield, /., presiding. The following “ case agreed ” was submitted to the Court for its judgment thereupon: 1. That on the first day of January, 1887, the defendant owned a tract of land in said county which he rented for that year to'James Galloway, Henry Rodgers and Sampson Green, reserving to himself a certain portion of the crops to be made during said year as rent. 2.

This was a civil ACTION, tried before Connor, J., at April Term, 1889, of the Superior Court of FraNKLIN County. The following issue was, by consent, submitted to the jury: “Was the deed set out in the complaint intended as a mortgage. If so, was clause for redemption omitted by mistake of the draftsman ?

This was a civil action, brought to recover possession of, and establish title to, a tract of land, tried at Fall Term, 1889, of Hertford Superior Court, before Brown, J. The land in controversy was described in the complaint as follows: “Adjoining the lands of John P. Liverman, John H. Liverman and Isaac J. Snipes, and containing fifty acres.” In the deed offered in evidence to show title derived from -John W. Blow, the common source, in Henry B. Blow (under whom plaintiffs…

This was a civil action for the recovery of land, tried at the Fall Term, 1889, of Bkrtik Superior Court, before Montgomery, J. To show title, the plaintiff offered in evidence a deed from E. R. Outlaw, Sheriff of Bertie County, to John Wilson and Etherton Wilson (the plaintiffs), which, after the usual recitations as to levy and sale under execution, contained only the following description of the land: “1st. A certain tract of land in aforesaid county, adjoining the lands…

<p>Trover — Former Action — Jurisdiction.</p> <p>1. An unsatisfied judgment in an action of claim and delivery is no bar to a subsequent action between the same parties for damages for the conversion of the property in controversy.</p> <p>S. Where the plaintiff, who had recovered judgment in an action of claim and delivery (in which he was defendant) for the return of the property, but the same had not been returned, thereafter brought suit against the plaintiff in such action for damages for the conversion of the property: Held, that he was entitled to recover.</p> <p>8. The Superior Court has jurisdiction of an action for damages for the conversion of property where the amount claimed is one hundred and twenty five dollars.</p> <p>(Davis, J., dissented.)</p>

<p>Civil Action, tried at Fall Term, 1889, of Vance Superior Court, befoi’e Armfield, J.</p> <p>This action was brought to recover of the defendant one-fourth of the net proceeds of sales of lumber sawed by plaintiff and the firm of Cheatham & Rowland at their saw-mill between February 27, 1883, and January 1, 1884, said saw-mill being then owned one-half by plaintiff, and the other half by the defendant and A. F. Cheatham, then partners as the firm of Cheatham & Rowland. The amount alleged to be due was $450, with 8 per cent, interest from January 1, 1884, till paid; also for one-half of the proceeds of sale of a house at said mill sold by defendant January 25, 1884, for $30 Plaintiff further claims that the said firm of Cheatham & Rowland dissolved on January 1, 1884, and that on November 23, 1886, partition was made between the members of said firm of the partnership real estate, and that on said last named date, the defendant and said A. F. Cheatham executed a deed in trust on their several shares of the partnership real estate, then divided, to secure and pay their proportionate parts (one-half each) of any debt then owing by the said late firm, of Cheatham & Rowland, whether to plaintiff or any other person. This deed is dated November 23, 1886, and was recorded the same day, and is made a part of the complaint.</p> <p>The defendant answered, admitting the partnership, but denying the debt, and set up as a bar to the action an arbitration and award and the plea of the three-years’ statute of limitations.</p> <p>Plaintiff replied that the subject-matter of this action was not considered nor passed upon by said arbitrators, and that the deed in trust made a part of the complaint was executed by defendant at, and immediately after, the payment to plaintiff by defendant of the amount awarded to him by said arbitrators to secure the payment to plaintiff and defendant of any and all sums that were still unsettled between them arising prior to said date, November 22, 1886. As to the plea of the statute of limitations, plaintiff replied that the defendant agreed to pay said debt within three years, as appears by the terms and conditions of said deed , in trust, and insisted that plaintiff and defendant, being tenants in common of said saw-mill, the statute would not begin to run until after a demand, no demand having been made till September 6, 1888.</p> <p>His Honor submitted to the jury the following issues, stating that the burden was on defendant, and that if they were found in plaintiff’s favor there must be a reference to state the account:</p> <p>“Has there been an arbitration and award covering the subject-matter of this action or any part of it, and if any part of it, what part?</p> <p>“Is the plaintiff’s cause of action, or any part of it, barred by the statute of limitations, and if any part, what part?”</p> <p>The defendant introduced the agreement to arbitiate, and the award of the arbitrators, and then introduced Col. T. L. Jones, one of the arbitrators, who staled that all matters between Cheatham & Rowland, and William A Cheatham, under the agreement to arbitrate, had been passed upon by said arbitrators, and that both plaintiff and defendant were allowed time to produce all claims they might have, one against the other, and that copies of the award were delivered to each of the parties.</p> <p>Plaintiff objected to this testimony, because, as he insisted, it was admitted in the answer that this claim was not submitted to nor passed upon by said arbitrators, and was never presented to defendant till September 6, 1888.</p> <p>Plis Honor overruled the . objection. Plaintiff excepted.</p> <p>Defendant introduced a receipt from plaintiff to defendant, showing payment of certain sums.</p> <p>Thereupon, his Honor intimated that upon the evidence submitted, he should instruct the jury to find the first issue in the affirmative. The plaintiff, in deference to his Honor’s opinion, took a nonsuit and appealed:</p>

<p>Petition to Make Real Assets — Plea of Statute of Limitations by Heir.</p> <p>1. In a proceeding by an administrator to sell tbe lands of his intestate to make assets, the heir can plead the statute of limitations to such claims of creditors as have not been reduced to judgment against the administrator. The heir is bound by such judgment, unless he can show that it was obtained by collusive fraud.</p> <p>2. Where in such proceeding the defendant (heir) pleaded that “if there is any indebtedness outstanding against the estate of plaintiff’s intestate, the same is barred by the statute of limitations” {The Oocle, §153, par. 2), “and the said statute of limitations is hereby pleaded against the collection of said claims: Held, that although the plea is indefinite and unsatisfactory, it was the duty of the Court below to have considered and determined it, and a failure to do so is error.</p>

<p>Mortgage — Application of Funds — Husband and Wife— Dower.</p> <p>1. Where a wife joined her husband in a mortgage conveying his land, together with personal property belonging to him, to secure his debt, and afterwards the husband alone executed a second mortgage conveying the same and other personal property to secure a second note executed by him, and before the personal property was sold directed that the proceeds of sale of the personal property, except so much as should ai’ise from the sale of a mule and wagon (about which there was no direction), should be applied to the payment of the debt secured by the Second mortgage: Held, that the fund arising from the sale of the mule and wagon should be paid upon the debt secured by the first mortgage, in exoneration, of the wife’s inchoate dower interest.</p> <p>2. The mortgagee cannot, because the husband failed to direct the application of the fund arising from the sale of the mule and wagon, apply it in discharge of the debt secured by the second mortgage, but must pay it on that secured by the first mortgage, for which the property is primarily liable, and in exoneration of the wife’s dower,</p> <p>3. The inchoate right of the wife to dower in her husband’s land, under The Code, ch. 53, has a present value as property depending on the ages, health and habits of both, and other circumstances competent to show the probabilities as to the length of life of each, and when she encumbers it by joining in a mortgage of his land to secure his debt she becomes his surety.</p>

<p>This was a civil action, heard upon a case agreed, a trial by jury having been waived, at the September Term, 1889, of the Superior Court of WarreN County, before Boykin, J.</p> <p>His Honor held that the deed in trust was fraudulent and void, and gave judgment as follows:</p> <p>“ This cause having been heard upon the facts agreed upon and filed, and upon the deed of trust mentioned and described in the complaint and embraced in the case agreed, a jury having been waived by the parties, it is considered by the Court that the plaintiff take nothing by his said suit, that the defendants go without day, and that they recover against the plaintiff their costs of suit.</p> <p>CASE AGREED.</p> <p>This case coming on for hearing by the Court, a jury having been waived by the parties, the following facts are agreed upon:</p> <p>1. The execution of the deed of trust, as set forth in the complaint, and is made a part of the case agreed.</p> <p>2.. That the trustee is and was insolvent at the time of the execution of the deed of trust.</p> <p>3. The debtor purchased $650 worth of goods in fall before the assignment.</p> <p>4. The inventoried value of the goods levied on by the Sheriff was $115, and the same brought at Sheriff’s sale at public auction fifty dollars.</p> <p>5. The goods levied upon by the Sheriff were the remnant of debtor’s stock, after his selection of the choicest and most saleable goods as exemptions.</p> <p>If, upon the foregoing facts, the Court shall be of opinion that the plaintiff is entitled to recover, then judgment shall be rendered accordingly; otherwise, for the defendant.</p> <p>EXHIBIT — DEED OK TRTST.</p> <p>Whereas, J. A. Nicholson, of the county and State aforesaid, is justly indebted to J. Ii. Bobbitt, of the county of Warren and State of North Carolina, by reason of one note of $85, dated August 1, and due, respectively, December 1; and whereas, he is indebted to divers other parties for goods, wares and merchandise; and whereas, he is desirous of securing all of his indebtedness, as far as his means will afford :</p> <p>Now, therefore, this indenture witnesses, that the said J. A. Nicholson, for and in consideration of the premises, and the further consideration of the sum of one dollar in hand paid, the receipt of which is hereby acknowledged, hath bargained, sold and cmiveyed, and by these presents do bargain, sell and convey unto J. H, Bobbitt, his heirs, administrators and assigns, the following described property, to-wit: His entire stock of dry goods, notions, tracts, shoes, hardware and merchandise of every description, and store furniture in his store at Macon, N. C.; also, all his bonds, notes, accounts, and other evidences of debt belonging to him, first reserving therefrom the sum of $500, being the personal property exemption exempted and allowed by the Constitution and the law’s of North Carolina to him:</p> <p>To have and to hold to him, his executors, administrators and assigns, upon the folio wing uses and trusts, forever: That the said J. H. Bobbitt shall have full power and authority, and he is fully empowered to take possession of the above described property, and sell the same at public auction, or bjr private sale, for cash, or on credit, as he may deem best for the interests of the creditors, and to collect all the debts due to the said J. A. Nicholson, by suit or otherwise, and out of the proceeds he is first to pay over to the said J. A. Nicholson, for his personal property exemption, the sum of $500, as allowed by the Constitution and laws of North Carolina aforesaid ; and, secondly, he is to receive a reasonable compensation-for his services and expenses in executing this trust; and, thirdly, he is to pay off the amount due to the said J. H. Bobbitt by reason of the note aforesaid, and then he is to pay the balance of proceeds, pro raía, among all of his other creditors, and if there shall be any surplus, he is to pay it to the said J. A. Nicholson.</p> <p>In witness whereof, said J. A. Nicholson hath hereunto affixed his hand and seal, this the 28th day of November, 1888. J. A. Nici-iolsoN. [Seal]</p> <p>Test: B G. RiggaN.</p> <p>COMPLAINT.</p> <p>The plaintiff above named, complaining of the defendant, alleges—</p> <p>1. That heretofore, to-wit, on the-day of_, one</p> <p>Augustus Wright was doing, and is still doing, a general mercantile business in the city of Petersburg, Ya.</p> <p>2. That during the year 1888, J. A. Nicholson, above named, was doing a mercantile business in the village of Macon, Warren County, North Carolina, and purchased of the said Augustus Wright certain merchandise, amounting to the sum of about three hundred dollars.</p> <p>3. That on the 28th day of November, 1888, the said J. A. Nicholson made an assignment, for the benefit of his creditors, to the said J. H. Bobbitt; that the said Bobbitt as said trustee accepted said trust, took possession of the goods, wares, merchandise and property of every description conveyed by said assignment deed.</p> <p>4. That on the_day of-, .1888, Augustus Wright aforesaid, having obtained judgment against the said J. A. Nicholson for the aforesaid sum, to-wit, about ihree hundred dollars, proceeded to collect the same from said trustee by process of law in the following manner, to,wit: by obtaining executions, putting them into the hands of the Sheriff aforesaid, and filing with him a bond in the sum of fourteen hundred dollars to idemnify him against all loss and damages wdiich might arise from his selling under said executions, a copy of which bond is hereto annexed, and prayed to be made a part of this complaint.</p> <p>5. That after receiving said executions and said bond, the said Sheriff had the personal property exemptions of said J. A. Nicholson duly allotted out of the goods conveyed to said trustee. After the said personal property exemptions were allotted as aforesaid, there was an excess of said goods, wares and merchandise so conveyed by said trust deed, of the value of one hundred and fifty dollars, which goods the said Sheriff sold at public auction at Macon, N. C , and the proceeds turned over to the said Augustus Wright, which the plaintiff herein is advised and_ believes, and so avers, is without authority and illegal, and that the said Sheriff and his special bondsman, the said S. P. Arrington, who signed the indemnifying bond heretofore mentioned, are responsible to this plaintiff, in the sum of one hundred and fifty dollars, the value of the said excess of goods so illegally sold at the time of said sale.</p> <p>Wherefore, the plaintiff demands judgment against the defendants—</p> <p>-1. For the sum of one hundred and fifty dollars, with interest thereon from the time said goods were sold as aforesaid, to-wit, from the-day of-, 1888, to-; and,</p> <p>2. For the costs of this action.</p> <p>ANSWER.</p> <p>The defendants, answering the complaint in the above entitled cause, say:</p> <p>1. That paragraphs one and two thereof are admitted to be true.</p> <p>2. That paragraph three is not true, but the defendants admit that a paper-writing, pretending to be an assignment from J. A. Nicholson to the plaintiff, has been executed, but they allege, and submit to the Court, that said pretended assignment is fraudulent and void upon its face, and they are informed and believe that the same was executed with the intent to hinder, delay or defraud the creditors of said J. A Nicholson, and is void.</p> <p>3 That paragraph four, in so far as it alleges that Augustus Wright obtained judgments upon his debts against said Nicholson, and caused executions to be issued thereon and placed in the hands of the defendant J. R. Rodwell, as Sheriff of Warren County, is admitted to be true; said paragraph is, in all other respects, denied.</p> <p>4. That paragraph five is not true, but it is admitted that the defendant J. R Rodwell, acting in his official 'capacity as Sheriff of Warren County, and under the executions mentioned in paragraph three of this answer, did duly lay off and assign to said J. A. Nicholson his personal property exemptions according to law, out of certain goods and mer chandise in the town of Macon, N. C., and after setting apart such exemptions did levy upon and sell the interest of said Nicholson in the remainder of the said goods and merchandise (together with other property), realizing therefrom about the sum of fifty dollars at a fair sale, which, defendants allege, was the reasonable value of said goods. And the proceeds of such sale, after paying the expenses of sale, and the legal costs and charges under said executions, paid the remainder to the said Augustus Wright. And the defendants are advised and believe that all the proceedings of the defendant Rodwell touching the property of said Nicholson were under and by virtue of the said executions issued to him as aforesaid as Sheriff of Warren County, and were in all respects regular and conformable to law, and that he acted in perfect good faith in all said proceedings.</p> <p>Wherefore, the defendants pray to be hence dismissed without day, with their costs.</p>

This was a Special Proceeding to assess damages for the right-of-way for a railroad through the land of defendants, tried on appeal from the Clerk at the September Term, 1889, of the Superior Court of Gates County, before Boy-kin, J. The proceeding was regularly instituted before the Clerk, and upon the hearing commissioners were duly appointed, who met upon the premises, and, after being duly sworn, assessed the damages at the sum of two hundred dollars ($200), and duly…

This was an ACTION begun in the Superior Court of UNION County, N. C., on September 12th, 1883, for the recovery of a tract of land situated in said county, and tried at February Term, 1889, of said Court, before Clark, J., and a jury. The following is a statement of the facts as far as is necessary to an understanding of the exceptions made by defendant, and which are the basis of _ the appeal.

This was an Action for the Recovery of Land, tried at the Spring Term, 1889, of the Superior Court of Rutherford County, before Clark, J. The plaintiffs offered a deed to Mildred Bowen from the executors of James Bowen, dated December, 1825, which, it was admitted, covered the land in controversy, and also the record of the will of James Bowen, proven in October, 1825.

This was a civil action, tried at the Fall Terra, 1889, of Halifax Superior Court, before Boykin, J. The complaint formally alleges two distinct causes of action.

This was a civil action, heard at the.May Term, 1889, of PIalifax Superior Court, upon a report of a referee, by MacRae, J. The case presented by the record is, in. substance, this: It appears that Eliza A. Phillips died in the county of Northampton prior to 1860, leaving a last will and testament, which was proven, and Joseph M. S. Rogers qualified as executor thereof.

This was a Supplementary Proceeding, heard at the August Term, 1889, of Orange Superior Court, before Graves, J. ■ The purpose was to subject certain moneys' ($25,000) recov■ered in suits brought by the receiver of the defendant IP. A. Reams, against some insurance companies, for loss resulting from burning some tobacco, and tried, after removal into the United States Circuit Court.

This was a civil ACTION, brought by the plaintiffs, judgment creditors of the defendant W. D. LaRoque, to subject the land described in the fifteenth paragraph of the complaint, or the money expended by the said W. D. LaRoque in purchasing said land, and in placing improvements thereon, to the satisfaction of their judgments, tried by Bynum, J., at the November Term, 1889, of the Superior Court of LeNOIR County, upon the issues set out in the record proper.

Civil action, tried before Graveé, J., at February Term, 1889, of Waice Superior Court. There was a verdict in favor of the defendants, and from the judgment rendered thereon the plaintiff appealed.

Civil action, originally begun before a Justice of the Peace, tried at Pall Term, 1889, of Johnston Superior Court, before Armfield, J. A jury trial was waived and the case heard by the Court. .Plaintiff sued on the following bond and guaranty: “$100.

<p>Petition to Rehear — Practice—Contradictory Verdict.</p> <p>"Where the plaintiff, in an action to recover land, demands judgment in his complaint for a tract containing twenty-five acres, and the following issue is submitted to the jury: “Is plaintiff the owner of the land described in the complaint?” to which the jury respond,Yes; one-seventh of the Sandy Bottom tiact — 160 acres”: Held, that the verdict is contradictory and a new1 trial will be ordered.</p> <p>(Clark, J., dissenting).</p>

This was an Action of Claim and Delivery, tried before Armfield, J., at the November Term, 1889, of Haknett Superior Court. The plaintiff claimed the property mentioned in his complaint by virtue of a note and chattel mortgage bearing date April 30, 1887.

This was a civil actior, tried before Mae Rae, J, at Fall Term, 1889, of the Superior Court of Gheeke County.

Civil actiox, tiled before Graves, J., at February Term, 1890, of the Superior Court of Wake County. On the trial, it was “admitted that the defendants A. N. Sexton and J. A. Sexton were partners, doing a general grocery business in Raleigh,” under the name and style of A. N. Sexton & Co.; that they did business during the year 1883 and part of the year 1884; the partnership was dissolved about May of the latter year.

<p>This was a civir, action, tried before Arm field, J., at October Term, 1889, of the Superior Court of Wake County.</p> <p>The plaintiif is the Treasurer of North Carolina. The defendant is a corporation of the State of Virginia and has a lease of the railroad of The North Carolina Railroad Com-pan3L a corporation of this State, and it does the business of transporation in, through and across this State, from the State of Virginia and other States, to the State of South Carolina and other States.</p> <p>The purpose of this action is to recover the sum of $350 as taxes alleged to be due this State from the defendant and for costs.</p> <p>The following are the facts found by the Court below, and its judgment thereupon:</p> <p>“1. The Richmond & Danville Railroad Company was, on June 1, 1888, the owner of $17,500 worth of rolling stock, to-wit, four “switching engines” and “one coach,” which -were, on June 1, 1888, used exclusively in North Carolina, but owned in Virginia, and which the company may at any time recall.</p> <p>“2. Upon all the rolling-stock of the Richmond & Dan-ville Railroad Company, the company is assessed for taxation, and does pay taxes, in Virginia.</p> <p>“3 The rolling stock of the North Carolina Railroad .Company is used exclusively in North Carolina, and upon all this rolling stock, of the asses ed value of $125,000, taxes are assessed and paid in North Carolina by the Richmond and Danville Railroad Company, the lessee.</p> <p>“4. The board of appraisers and assessors of the North Carolina Railroad made the assessment, as set out as an exhibit to complaint, of $175,000 upon the rolling slock of the Richmond and Danville Railroad Company in use in North Carolina, on June 1st, 1885.</p> <p>“'5. On June 1st, 1888, there was in use on the North Carolina Railroad, leased by the Richmond and Danville Railroad, in North Carolina, rolling stock passing through the State to the value of $175,000. Such rolling stock was owned by the Richmond and Danville Railroad Company, and the trains in which said rolling stock was used were made up outside of North Carolina and went on through to the State of South Carolina.</p> <p>“Upon this state of facts, his Honor ruled that the defendant company was liable to pay taxes to the State upon $17,500 (on the engines and coaches used exclusively in North Carolina), and was not liabb- to pay upon $157,500, the remainder, used in inter-Stale commerce.</p> <p>“Therefore, it is adjudged that the plaintiff1 recover of the defendant the sum of $350 and interest from July 1st, 1888, and costs.”</p>

Civil actioN, tried at Spring Term, 1890, of Vance Superior Court, Armfield, J., presiding.

This was a civil ACTION, tried before Connor, J., at Spring Term, 1889, of the Superior Court of Nash County.

This was a civil action, tried at the Spring Term, 1889, of the Beaufort Superior Court, Boykin, J., presiding. The purpose of this action is to charge the defendants, as trustees, holding the legal title to the land in question for the plaintiff, to compel them to convey such legal title to the plaintiff, and account for rents and profits, and to obtain possession of the land. The plaintiff alleges, among other things, in the complaint— “1.

This was a civil action, heard upon a case agreed, by Brown, J., at the February Term, 1890, of Hertford Superior Court. The feme plaintiff, Charlotte Griffith, on the 1st day of January, 1880, was the owner of an undivided interest in a tract of land in the State of Missouri, which she and her husband agreed to sell and convey to one Peter Barnard, for and in consideration of the sum of $271.

This was a civil ACTION, tried at the February Term, 1890, of Halifax Superior Court, before Boyltin, J. The following is a copy of the case .stated on appeal: The plaintiff alleged that defendant executed the note sued on, and that the same was transferred to him for value and before maturity.

This was a civil ACTION, tried at the Spring Term, 1889, of Northampton Superior Court, before MacRae, J. The complaint alleges in substance— 1. That in 1873 Virginia A. Johnson died in Northampton County leaving a last will and testament, which was duly proved on the 3d day of March, 1873, and that Chatharine T. Johnson, the execútrix therein named, qualified as such. 2.

<p>Divorce — Pleading—Evidence—Allegata and Probata.</p> <p>1. When, in an action for divorce a mensa et thoro, there was no evidence of turning feme plaintiff out of doors at any time more than six months before the bringing of the action: Held, that the issue, “ Did the defendant maliciously turn plaintiff out of doors?” was ' properly excluded.</p> <p>2. It is not a sufficient compliance with the law,-in such cases, to charge ill treatment generally, or that the condition of feme plaintiff was intolerable by reason of her hirsband's conduct; the complaint ought to show the particulars of the ill-treatment, and that it was without provocation on her part.</p> <p>3. The complaint ought to show, and the Court, before granting such divorce, must see, either that the husband abandoned his family, or maliciously turned the plaintiff, his wife, out of doors, or endangered her life by cruel, torturous treatment, or offered such indignities to her person as rendered life a burden.</p> <p>4. Where, in such case, facts stated in the complaint were not sufficient to constitute a cause of action: Held, that a motion to dismiss, made for the first time in the Supreme Court, should be allowed.</p> <p>5. The defects in this case were such as might have been cured by amendment of the complaint, by leave of the Court, so as to correspond with the verdict and judgment.</p>

This is an appeal from the refusal of Arm,field, J., at October Term, 1880, of Wake Superior Court, to make an order for the removal of the cause to Surry County for trial.

Civil actios, tried at Spring Term, 1889, of Wayne Superior Court, Whitaker, J., presiding. In his life-time, John Coley, now deceased, contracted, in writing, to sell and convey to Thomas R. Smith, likewise now deceased, for a stipulated price, the tract of land specified in the complaint. The said Smith died, leaving a last will and testament, which was duly proven, and the plaintiff W. F. Gardener qualified as executor thereof.

This was a civil action, tried at November Term, 1889, of Harnett Superior Court, before Arm field, J. The plaintiffs complained that the defendant Stewart had, by false and fraudulent representations and pre-tences, obtained the signature of Amos Johnson, father of feme plaintiff, to a deed of conveyance to certain lands. Stewart died after suit commenced, and his heirs were made parties.

This was a civil ACTION, tried at March Term, 1889, of Durham Superior Court, before Bynum, J., for the value of some horses and mules, and for feeding and caring for them. The following are the issues submitted to the jury, and' responses thereto: 1. Did the plaintiff sell and deliver to the defendant the property mentioned in the complaint? Ans. Yes. 2. Did plaintiff furnish for the defendant the feed, stabling and attention stated in the complaint? Ans.

Civil action, tried at Pall Term, 1889, of Nash Superior Court, before MacRae, J. Plaintiff appealed. The case was heard upon exceptions to referee’s report. In the complaint it is averred that plaintiff sold a mule to one Bullock, taking his note for the same, and reserving title until paid for; and, by consent of plaintiff, the mule was afterwards traded for a horse, upon the agreement that the title to same should be retained in like manner.

<p>This was a civil action, tried at the Fall Term, 1889, of Wake Superior Court, by Arm field, J.</p> <p>The following is a copy of the material parts of the case settled on appeal:</p> <p>The plaintiff sued the defendant for the sum of $273.42 and interest, claimed to be due for money paid out on defendant’s written requests, or checks, by the State National Bank— in other words, an overdraft for that amount.</p> <p>The plaintiff was the receiver of the bank.</p> <p>The defendant admitted drawing the checks and the payment of the money by the bank to the amount of the draft, but denied any indebtedness to the bank, or to the receiver, upon the ground stated in the answer.</p> <p>It was in evidence, without contradiction, and admitted by both parties, that C. E. Cross was president and S. C. White was cashier of the State National Bank in 1887, and up to March 26th, 1888.</p> <p>The defendant tendered an issue:</p> <p>“To whom was credit given by the bank in the payment of the checks for the alleged overdraft?”</p> <p>His Honor stated that the issue in this form involved an inference of law, and that the Court would decline to submit it. That the issue would be: “ Is the defendant indebted to C. Dowd, receiver, and if so, in what amount?” and upon that issue the Court would charge upon the matters involved. Defendant excepted.</p> <p>The defendant introduced the following testimony:</p> <p>Charles E. Cross: “ In 1887 and 1888, up to March 26, I was president of the State National Bank; S. C. White was cashier. I instructc-d White, the cashier, to pay the che ks of defendant. I was indebted to defendant personally in a considerable amount for ‘ logging,’ or supplying logs to my saw'-mill. It had been my habit in settling with defendant to tell him to draw checks on the State Bank, and I would have them paid. I did this for my convenience. Defendant did so, and drew the checks constituting the ovt rdraft claimed by plaintiff to be due. The checks wTere paid. Defendant’s account had been overdrawn before, though he did not know it, and I had made it good. I told the cashier to look to me for the payment of these checks, and I also told Stephenson I would pay them. I wras indebted at that time to the defendant more than the amount of the overdraft.”</p> <p>Cross-examined. — “My account was largely overdrawn at the time the checks were paid. I expected to receive some money, and to make a deposit to meet these checks. The directors w'ere not consulted about this matter. They were not consulted usuallj' in small loans, nor in ordinary cases about the payment of checks I did not wish to increase my own overdraft. I did not make a deposit to Stephenson’s credit. It was my habit to make the deposits to his credit at the end of each month.”</p> <p>S. C. White, witness for defendant: “I was cashier for years prior to and in 1888. I controlled the cashing of checks. Defendant was in the habit of drawdng checks on the bank. Cross, the president, told me to pay all of defendant’s checks; that he was responsible for them and would pay them. I honored these checks on Cross’ credit, and looked to him to pay them. Cross had paid former drafts. Mr. Womble, the book-keeper, knew of these transactions. No notice was sent to the defendant of his overdrafts. It was usual to send notices The checks were charged on the books of the bank to-the defendant. No deposit was ever actually made by Cross to meet them.”</p> <p>L. D. Stephenson, the defendant: “I received no notice of any overdraft. Mr. Cross emploj’ed me to get logs for his mill, and I had instructed him to place what he owed me to my credit in the bank, and also $700 for land, and $1,000 for another tract of land, and I thought when I drew those drafts that he (Cross) had placed money to my credit. ■ I was never notified of an overdraft. Bank was closed Saturday, March 26, 1888. The book-keeper was instructed to notify all persons who had overdrawn. Í had dealt in same way with Mr. Cross to the amount of $5,000. I did not know of the insolvency of the bank, or Cross, or of Cross’ indebtedness to the bank.”</p> <p>Upon the evidence of the defendant, his Honor instructed the jury that the plaintiff was entitled to recover. Verdict and judgment as set forth in the record. The defendant excepted to the charge. From the judgment the defendant appealed.</p> <p>The material part of the defendant’s answer is as follows:</p> <p>Defence set forth in answer—</p> <p>2. He admits giving checks on said bank for the amounts set out in the complaint, but denies that he owes anything on that account, and avers the facts connected therewith to be as follows: C. E. Cross, president of said bank, being indebted to this defendant, requested him to give checks on said bank to the amount of his claim, and that the bank would pay the same. This defendant had, prior to this, dealt in a similar way wdth C. E. Cross, president of said bank, to the amount of many hundred dollars, and the bank paid the checks of this defendant without his putting any money to his credit.</p> <p>3. Not only the president, but the other officers of said bank, knew, when they paid the checks set out in the complaint, that the money was paid on account of the indebtedness of C. E. Cross, president of said bank, to this defendant, and was not intended to be charged to this defendant, the same being paid by said bank on the account of C. E. Cross, president of said bank, and intended to be a charge against him only.</p> <p>4. The president of said bank was, at the time said checks were drawn and paid, indebted to this defendant to an amount much in excess of the checks drawn as above, which said bank agreed io pay, and is claimed as an offset to plaintiff’s demand.</p> <p>The Court gave judgment as follows:</p> <p>“Hereupon it is adjudged that the plaintiff recover against the defendant the sum of two hundred and seventy-three dollars and forty-two cents, with interest on $273.42 thereof from the 13th day of March, .1888, until paid, together with costs and disbursements.”</p>

This was an actioN for the possession of land, tried at the November Term, 1889, of the Superior Court of Harnett County, before ArmfielJ, J. The complaint was in the usual form. The answer was a general denial of its allegations. “ As evidence of his title, the plaintiff offered a grant in usual form for the locvs in quo from the State to Jacob ITolder, under whom the plaintiff claims, dated 28th December, 1852.

<p>This was a civil action, tried at the February Term, 1890, of Craven Superior Court, before BoyJcin, J.</p> <p>The facts are sufficiently stated in opinion.</p>

<p>This was a Petition to Rehear Gay v. Grant, heard at the October Term, 1888, of the Supreme Court, and reported in Vol. 101 N. C., p. 206.</p>

This was a civil ACTION, tried before Armfield, J., at the September Term, 1889, of Wilsost Superior Court. There was a petition to sell lands, and the cause was referred to find the facts, which are, that Elisha Davis died in I860, leaving a last will and testament, by which the land in controversy was devised to his widow for life or widowhood, and she remained in possession to her deaih in 1887.

This was a civil action, tried at Fall Term, 1889, of HERTFORD Superior Court, before Brown, J. The defendant compan}', through its treasurer, John T. Hill, on April 13th, 1875, entered into a contract with W. P. Taylor and A. J. Northcott, the material parts of which are hereinafter set out. The same was also afterwards ratified by the company. Plaintiff afterwards became the assignee of Northcott’s interest.

This was a civil action, pending in Cabarrus County, heard upon application for injunction, before Shipp, J., at Chambers, February 18, 1890.

plaintiffs’ appeal. This was a civil action, tried before Armfield, J., at the February Term, 1889, of Vance Superior Court. The facts necessary to an understanding of this case, not set forth herein, are to be found in Burwell v. Burgwyn, 100 N. C., 389 The amount was again referred to the former referee Young to state an account in conformity with the opinion of the Court.

<p>Usury Contract — Res Judicata — Referee.</p> <p>When, the exceptions to the report of a referee are overruled, and, upon appeal to this Court, judgment is affirmed, such exceptions cannot be reviewed, and the questions raised by them and passed upon by this Court cannot be unsettled.</p>