Volume 106 — North Carolina Reports

This was a civil ACTION, tried before Bynum, J., at the Fall Term, 1890, of New Hanover Superior Court.

Tliis was a civil ACTION, tried before Shipp, J, at the January Term, 1889, of Cababjrus Superior Court. It appears that Martin A. Blackwelder died in the county of Cabarrus some time prior to 1874, leaving a last will and testament, which was duly proven, and his widow, who has since intermarried with the male plaintiff, qualified'as executrix thereof.

MotioN to dismiss a proceeding for the condemnation of land, begun by the plaintiff before the Clerk of Durham Superior Court, and… Held: adopted the following resolutions, to-wit: .“Resolved, That the Durham and Northern Nailway Company be permitted, and they are hereby expressly authorized by the town of Durham, to use Peabody street for the purpose of extending their track from a point just west of the electric light house, where their present right-of-way stops,,…

<p>This was a civil ACTION, tried before Avery, J, and a jury, at August Term, 1888, of the Superior Court of Wake County.</p> <p>The plaintiff’s action was based upon a policy of insurance issued by the defendant company, by which it contracted to insure against loss or damage by fire, certain property of the plaintiff described in the complaint. On, or about, the 20th day of October, 1886, all of said property was destroyed by fire except the engine and two boilers, &c., which, it is alleged, were greatly damaged. The defendant denied its liability on several grounds, which are illustrated by the issues. Much testimony was introduced. Seventy-six special instructions were requested by the defendant, and a large number of exceptions taken to the rulings of the Judge. Only so much of the case will be here stated as is necessary to a proper understanding of the opinion of the Court.</p> <p>The issues upon which the questions considered upon appeal arose were as follows :</p> <p>“8. Did a difference arise between plaintiff and defendant as to the extent of damage done by fire to the engine, two boilers, inspirator and connections, not destroyed by fire? Ans. No.</p> <p>“9. If so, did the defendant request of the plaintiff, in writing, in accordance with the requirements of the policy sued on, that the amount of damage to said articles should be assessed by appraisers, and did plaintiff refuse such request? Ans. No.</p> <p>“10. Did the defendant company, at the time of making any request or demand for arbitration as to the damage to said articles of property not destroyed by fire, deny its liability to plaintiff under the said policy of insurance? Ans. Yes.”</p> <p>C. M. Hawkins testified as follows: “I had an interview with Mr. Warren and the other adjusters about October 29th, in my office on Fayetteville street. I think that Mr. Churchill, Mr. Dewey and Mr. AVarren were present, and I believe that Mr. Cowper was present; it was October 29th, 30th, or November 1st or 2d; I believe it was November 2d, now. Mr. Warren came in with the others and handed me a paper, asking me to read and sign it; I thought I had the paper here, but do not find it among the papers that I have here.</p> <p>“ One morning before that, I went down to the place where the fire had taken place, with AVarren ; AVarren and myself walked around the engine and two boilers from the outside without examining them. Mr. Warren said : ‘ We will give you $900 for damages to engine, two boilers, inspirator 'and connections.’- I declined to take the offer. Mr. AVarren made the offer on behalf of himself and his agents and adjusters of all the companies interested. I proposed to have competent persons or machinists to examine, and estimate the loss. AVarren said that the only way to do that was to resort to arbitration. I told him that I had no objection to arbitration, if he would make it equally binding on me and all parties interested. I do not recollect what he said, but he and Mr. Churchill (and, I think, some other adjusters) left my office immediately after my reply to the remark of Warren about arbitration. I next saw Warren that afternoon in my office; I think he came in about two or three o’clock, in company with Mr. Churchill, Mr. Dewey and Mr. Pulaski Cowper. Mr. Warren handed me a paper to read. I said I was willing to sign it if it bound the companies interested as it did my company — the plaintiff company. I told him what my objection to the paper was, and pointed out an objectionable clause. Pie struck that clause out and substituted another paper, and handed it to me; I said that the second paper was the same, but differently expressed; I said that it was the same old gray mare colored differently; my recollection is that the date was November 2d; it may have been October 29th. Mr. Warren said that if I did not sign that paper that they would not pay me anything. He was speaking for all the companies. I think that Mr. Churchill said to Mr. Warren, ‘You a-1 as spokesman for all the companies.’ I think that all the agents mentioned were present; I am not sure about young Mr. Walter Hay and Mr. Dewey. Pulaski Cowper was present. Mr. John Whitehead was present at that time. Mr. Warren walked across the floor and said, ‘We don’t owe you one dollar’ (or one cent, perhaps, he said). I turned around and asked if he meant that they did not owe us anything. Mr. Warren said, ‘Yes,’ and we all then left the office.</p> <p>“ I did not refuse to sign either of those pipers, but said that I would sign them if they should be made equally binding on the insurance companies interested as they were on me.</p> <p>“I wrote * * * a letter to Yarborough House, as stated. There had been previously two or three other propositions submitted.”</p> <p>Plaintiff read, in evidence, a copy of the letter (exhibit D) written just after the adjusters left the office and referred to by the witness.</p> <p>Mr. Hawkins continued: “ The paper, exhibit E, was received by me after my letter, marked D, was written and sent, and I referred in my letter to correspondence, letters and contracts tendered prior to November 3d. There were two papers purporting to be contracts tendered to me prior to November 3d.</p> <p>“ I cannot tell hów many letters I received from Mr. Warren. I do not recollect that Mr. Warren submitted a printed form to me as contract of arbitration. I cannot identify the pencil memorandum.”</p> <p>Defendants here read exhibit E.</p> <p>“I received the letter marked E late in the afternoon. I do not recollect having the paper that came with that letter, nor, if I had, what became of it. My impression is, that the letter was brought by a boy to me.</p> <p>“ I think that the exhibit F, and a pencil memorandum, contained all propositions submitted to me. I recollect no other. My objection to the proposition F was, that the company was not bound, while I was bound. My chief objection 10 the paper was, that Mr. Warren always wrote, and said in every conversation, that he waived nothing. Mr. Warren first said, ‘I neither admit nor deny liability.’ After that, and just before he left the office, he appeared to get angry, and said, ‘We do not owe you one dollar’ (or one cent, I am not certain which). All of the other appraisers signed an agreement that bound them as well as myself. It was not the stipulation asked for by Mr. Warren.”</p> <p>* * * * * *</p> <p>“The next interview was in Mr. Hawkins’, on the morning .of November 3d, when, pursuant to the appointment made the day before, we went to Mr. Hawkins’ office. Mr. Churchill, Mr. Dewey and myself went together and submitted to Mr. Hawkins a form of agreement to be submitted to appraisers.</p> <p>“There was a printed paper presented to myself as the special agent of the Phoenix Assurance Company of London, and subscribed by me for that company. I did not take it after it was handed him. It was signed by Dewey and Churchill, as agents for their respective companies.</p> <p>“ That was the first proposition to arbitrate that was made. I do not know whether the paper was left in the hands of Hawkins, Dewey or Churchill. It was not brought by me out of the office. It is my best recollection that I last saw it in the hands of Mr. Hawkins. I cannot swear that it was left in his hands.”</p> <p>The defendants proposed, at this point, to prove contents of the papers which, they say, are different from exhibit “I,” and insist upon their right to do so, because they served (as is admitted) a notice to produce them. The plaintiff produced the papers (“Q,”) in response to that notice. The Court held that there was not sufficient evidence; that the paper referred to by this witness was left in the hands of C. M. Hawkins for plaintiff company to allow proof of the contents. The defendants insisted upon their right because Mr. Iiaw’kins said that he did not recollect that any printed form of arbitration was submitted to him, and that he did not have such paper, and- that statement, in their view, makes notice unnecessary.</p> <p>Upon a further question, made to counsel for plaintiff and to C. M. Hawkins for plaintiff, C. M. Hawkins answers that he has not now in his possession any paper, such as described in the notice. '</p> <p>Hawkins further testified that, according to the best of his recollection, he has never had any printed form in his possession filling the description in the paper marked ‘'P.”</p> <p>After the foregoing testimony was offered, the defendant again proposed to prove the contents of the printed paper referred to by the witness, on the grounds already stated, and the further grounds that' it is a collateral matter, and that it is not necessary to produce the paper, but the contents may be proven without notice to produce or account--ing for loss of it. Objection sustained. Exception by defendant.</p> <p>Defendant then proposed to show that C. M. Hawkins refused to sign the printed form of submission, stating to witness, as a reason, that it contained a provision that the appraisers should not decide the liability bf the company.</p> <p>Objection was sustained, and defendant excepted.</p> <p>Witness then continued: ‘'No other printed proposition was tendered except that one discussed, or written ones except those already discussed. We had a conversation about submitting to arbitration with Mr. Hawkins. We stated the terms of the proposition verbally to Mr. Hawkins, when he replied to us to reduce our proposition to writing, and we accordingly did reduce the proposition immediately to writing.”</p> <p>. The defendant proposed to show what the witness and other adjusters verbally proposed as the terms of arbitration, and insisted upon their right to show this, as a part of a conversation in relation to which Hawkins testified; that they have a right to show the whole conversation.</p> <p>The plaintiff objected on the ground that the witness had testified that the proposition was reduced to writing before Hawkins would consider it, and the writing is the highest evidence of what the proposition was, and that defendant cannot, as a part of a conversation, offer testimony incompetent, for this reason. Objection sustained. Exception by defendant.</p> <p>“The interview was (considered as) interrupted after the printed paper was offered. The adjusters then retired; when they returned, Mr. Cowper came in, representing the Lancashire Company, and the pencil memorandum was then made.</p> <p>“That paper (pencil memorandum) was made just after Mr. Cowper had asked Mr. Hawkins if he would sign a paper of a particular sort, describing it. Mr. Hawkins said that he would not sign an agreement that had those concluding words in it, the concluding of the pencil memorandum. He added, that it was in substance what the former agreement was that he had refused to sign; that was all he did say then.”</p> <p>The counsel for defendant proposed to ask the witness whether that discussion was before or after the printed form was handed to Mr. Hawkins. Plaintiff objected on the ground that the printed form had been excluded, and the reference to it is made by counsel in order to prove its contents indirectly, and the testimony could not be material for any other purpose. The plaintiff did not object to the conversation, but to directing the attention of the witness and jury to the printed form. The plaintiff’s objection sustained. Exception by defendant.</p> <p>“ The paper marked ‘Q’ was the paper referred to by Mr. Hawkins in his examination, when he said it was the same old gray mare of another color.</p> <p>“ When Mr. Hawkins said he would not sign an agreement containing the phraseology used in paper Q,,’ I told him that he had exhausted our efforts to secure an appraisement, except by demand in writing, and that he had driven us to that, but that we could make no written demand until after an effort to agree on the damage had failed, and a difference as to extent of loss had existed. This conversation was in relation to damage to engine, boilers, inspirator and connections. I then said to Mr. Hawkins that Mr. Churchill, Mr. Dewey and I would inspect the property, form the best opinion we could of the maximum extent,of damage by fire to those articles, to-wit, engine, boilers, inspirator and connections, and inform him, so that if his judgment concurred with ours, we could avoid the necessity of an appraisement. Mr. Churchill, Mr. Dewey and myself did at once go to the ruins, and, relying on Mr. Dewey’s judgment, agreed that the damage was seven or eight hundred dollars. This was the afternoon of the third day of November — early in the afternoon. We came back and went to Mr. Hawkins’ office, and I told him that we had concluded that the damage did not exceed eight hundred dollars to engine, two boilers, inspirator and connections. We asked him if he would agree that such was the extent of the damage to that property. He said that he had made up no judgment of his own, but would go and look, and let us know. He went out, and came back after an absence of perhaps half an hour, more or less, and gave it as his judgment that the engine, boilers, inspirator and connections mentioned had been made worthless by the fire. I thereupon said to him, ‘ Then you claim $3,000 or $4,000 as the damage?’ He answered, ‘Yes.’ I then said to him, ‘You won’t accept our $800?’ He said, ‘ No.’ I said, ‘ We will not assent to your figures.’ We did not agree. I then said to Mr. Hawkins, ‘ Now, here is a distinct difference between us.’ Hawkins said, ‘ No, there is no difference.’ I replied,‘If $800 is not one sum and $3,000 is not another, with a big difference, then I do not understand figures.’ I then remarked that I now could do nothing more nor less than in writing to demand an appraisement of the articles mentioned. I thereupon wrote letter of November 3d, marked .exhibit ‘E’ (read to jury). While I was preparing a paper to submit with this letter, and had begun to prepare it, a part of exhibit ‘Q,’ Mr. Churchill and Mr. Dewey came into my room, and I, not liking the beginning of exhibit ‘ Q,’ laid it aside. Mr. Churchill picked it up, and for himself, without any interest on the part of my company, continufed it and finished it. I then and there prepared a paper, marked exhibit ‘F,’ and went to Mr. Hawkins’ office with Mr. Churchill and Mr. Dewey, taking with me the papers marked ‘E’ and ‘F.’ Mr. Churchill or Mr. Dewey took paper marked ‘ Q.’ I went up to Mr. Hawkins and handed him immediately the papers marked‘E’and‘F,’between three and five o’clock on evening of the 3d of November. At the same time, exhibit ‘Q,’ was handed to him. I said to Mr. Hawkins that, by the peculiar environments of the defendant company’s policy, I could not recede from my former demand, that the form of appraisement should be in exact accord with the terms and conditions of the policy, and that he would find that the paper (exhibit ‘F’) submitted for his signature, clearly followed the exact phraseology of his policy, and I had intentionally so drawn ..it, determined to place my company on all of its rights, as he had refused to subscribe to other propositions in writing. I told him to examine his policy and see that the paper ‘F’ was in exact line with the wording of his policy, or, in substance, that.</p> <p>“Mr. Hawkins stated that his policy was in his safe. I asked him if he would not get it, and repeated my request. He said that he was feeling very badly and would answer my demand next morning. I told him, if he proposed to refuse, that to compel me to remain another day would extremely embarrass my business, as I had been here three days and had demands on me from other places. He still declined then and there to examine the paper. I told him that I could not wait over and would leave that night. Messrs. Churchill, Dewey and myself then left Hawkins’ office. Before we got a square away from his office, I decided to remain. On the morning of the 4th, Hawkins’ letter of November 3d w’as handed to me and other adjusters. The letter was handed to such of the adjusters as were there. Mr. Dewey, Walter Flay, T. T. Hay, Churchill and Hutson Lee (who was another adjuster and arrived that day) and myself w'ere present. • I thereupon wrote my letter November 4th, marked exhibit ‘IF.’ I referred in that letter to exhibit ‘ D,’ to which it was an answer. I left that evening. I had no conference with Mr. Hawkins except in the presence of Mr. Churchill and Mr. Dewey. Mr. Cowper was present at one of these interviews. Several times during November 3d, Mr. Hawkins directed questions to me, which forced me (in order to avoid misunderstandings), as I told him at the time, expressly to say that I would 'not commit my company to either an admission or denial of liability.</p> <p>“At our last interview Mr. Hawkins said to me, ‘Then, I understand you to say you owe me nothing?’ I replied, ‘No, sir; you misunderstand me; I repeat what I have heretofore told you, that I will not commit my company now to an admission or denial of liability.’ ”</p> <p>The defendant excepted to the issue submitted by the Court — No. 10. The defendant also requested of the Court to amend the ninth issue, as settled by the Court, by striking out the words “ refuse such request,” and inserting in lieu thereof the words “ fail or refuse to comply with such request,” which was refused by the Court. The defendant also requested the Court to submit to the jury in a separate issue, whether the plaintiff had failed or refused to comply with such request, which was refused by the Court. To both of these refusals the defendant excepted.</p> <p>Defendant also excepted to refusal of the Court, on the subsequent request to divide issue, now numbered nine, so as to submit separately, requested, whether plaintiff “failed” and whether he “refused,” on a proper request, furnished proof, or to insert the word “fail” before the word “refuse,” in said issue.</p> <p>There was much other testimony corroborative and contradictory of the chief witnesses, the material parts of whose evidence has been set out.</p> <p>The policy of insurance contained the following stipulation and agreement:</p> <p>Exhibit A.</p> <p>When property is damaged, the assured shall forthwith cause it to be put in order, assorting and arranging the various articles according to their kinds, separating the damaged from the undamaged, and shall cause an inventory to be made and furnished the company of the whole, naming the quantity, quality and cost of each article. The amount of sound value, and of the loss or damage, shall be determined by agreement between the company and the assured; but if, at any time, differences shall arise as .to the amount of loss or damage, or as to any question, matter or thing concerning or arising out of this insurance, every such difference shall, at the written request of either party, be submitted, at an equal expense to each of the parties, to two competent and impartial persons — one to be chosen by each party — and the two so chosen shall select an umpire to act with them in case of their disagreement: Provided, however, that none of the persons so chosen shall be interested in the loss as creditors, or otherwise, or related to the assured or sufferers; and the award, in writing, of any two of said persons shall be binding and conclusive as to the amount of such loss or damage, or as to any question, matter or thing so submitted, but shall not decide the liability of this company.</p> <p>Exhibit D.</p> <p>Novembee 3d, 1886.</p> <p> Messrs. L. R. Warren and others: </p> <p>GentlemeN: Referring to the correspondence between the agents and adjusters of the several insurance companies whose policies I hold for insurance upon the property of the Pioneer Manufacturing Company, I beg to state that I have furnished everything with regard to the loss of the Pioneer Manufacturing Company, occasioned by the fire on October 20th, 1886, which you have required, as far as it was in my power to do, and I have also expressed my willingness to furnish you -with any other proof or give you any other information which could be furnished or given. I have'al'so submitted to you the vouchers in support of the company’s claim for loss, and I have also proposed that we should take up the said company’s claim for loss, and go over it, item by item, to the end that if any item is objected to by you, you may specify the ground of objection in order that the same may be removed or adjusted conformably to the terms and conditions of your respective policies of insurance. I understand you do not accede to the proposition, but, on the contrary, you have declared that you do not recognize or admit the fact that your said companies are liable to one dollar of loss on account of said policies</p> <p>It is, therefore, only left to me to request you to furnish your blanks, upon which I may duly make out and forward to you the proof of loss of said Pioneer Manufacturing Corn-pan}!', as required by said several policies of insurance.</p> <p>Yours very truly,</p> <p>C. M. Hawkins,</p> <p> President. </p> <p>Exhibit E.</p> <p>Raleigh, N. C., November 3,1886.</p> <p> Pioneer Manufacturing Company, Colin M. Hawkins, President, Raleigh, N. C.: ' </p> <p>Dear Sirs: A difference existing between us as to the extent of the damage by fire (October 20, 1886) to property covered by the second item of our policy, viz.: engine and two boilers, including inspirator and connections, we hereby request that said damage be ascertained by appraisement, in accordance with the terms and conditions of our. said policy, and to that end submit herewith, executed by us, a paper indicating an agreement for that purpose, which we beg you will sign, first filling in the name of the party selected by you as appraiser.</p> <p>Yours very truly,</p> <p>PhceNix Assurance Co. oe London,</p> <p>L. R. Warren, Special Agent,</p> <p>Exhibit F.</p> <p>A difference existing between Pioneer Manufacturing Company and Phoenix Assurance Company of London, as to the extent of the loss by fire on October 20, 1886, on engine and two boilers, including inspirator and connections, in engine room attached to main building of said Pioneer Manufacturing Company; and said Assurance Company having, in writing, requested that an appraisement of such loss or damage be had in accordance with the terms and conditions of said Insurance Company’s policy on said property, it is hereby agreed by and between said parties that B. R. Harding and-, one of whom is chosen by said Manufacturing Company and the other by said Insurance Company, and neither of whom is interested in said loss as creditors, or otherwise, nor related t j assured or sufferers, shall estimate and appraise at the true cash value what such loss or damage by said fire to said property is. The two persons so chosen shall select an umpire to act for them in case of their disagreement, but such person so chosen shall not be one who is interested in the loss, or creditor, or otherwise, nor related to assured or sufferers. The said appraisement shall be at an equal expense to the parties hereto. The award, in writing, of any two of said persons so selected shall be binding and conclusive as to the amount of such loss or damage, but shall not decide the liability of said Insurance Company. Witness the following signature and seals:</p> <p>PhCENIX Assubance Co. oe London, [Seal.]</p> <p>By L. R. Warren, Adjuster. [Seal.]</p> <p>Exhibit I.</p> <p>It is agreed by and between the Pioneer Manufacturing Company, of the one part, and the insurance companies whose names are hereto subscribed, of the other part, that B. R. Harding and-, who are mutually selected by the parties hereto for that purpose only, shall estimate and appraise, at true cash value, the actual damage occasioned by fire on 20th October, 1886, to the engine and two boilers, including inspirator and connections in engine-room attached to main building, the propertj’- of said Pioneer Manufacturing Company. The powers of said appraisers are hereby expressly declared to be within the terms and purposes herein expressed, and their award, in writing, within the terms and purposes of this agreement shall be held as fixing the quantum of such damage, and, as such, binding on the parties hereto. This agreement waives no right of said companies, or of assured, under the terms and conditions of their policies, except that neither party hereto shall deny the award of said appraisers to be the true and actual measure of damage, on a cash basis, to the property hereby submitted for appraisal.</p> <p>(Signed) J. D. W. Churci-iill,</p> <p>For L. & L. G. Ins. Co. -</p> <p>SoutherN Ins. Co. oe. N. 0.</p> <p>By L. R. Warren, Adj’r.</p> <p>German-Americais? Ins. Co.</p> <p>By Geo. W. Dewey, S. A.</p> <p>Exhibit Q.</p> <p>Shall estimate and say what is the actual damage of fire to, &c., and when, in writing, they shall have said what, in their judgment, such damage is, the sum so found shall be deemed, between the parties hereto, to be the actual damage to said property by such fire, but said appraisers shall have no other power than is herein stated, it being understood that their finding shall in no wise decide that any company hereto is, or is not, liable.</p> <p>The defendant, among other instructions, asked the Court to charge as follows:</p> <p>“ 17. That, according to the plaintiff’s testimony, a difference arose between the plaintiff and the defendant as to the amount of loss or damage on the engine, boilers, inspirator and connections.</p> <p>“ 34. That if Hawkins refused to sign the appraisal paper marked ‘ F,’ on the ground that it did not bind both parties equally, this was not a good ground for such refusal, as that paper, in law, did bind both parties equally, and he ought, upon written request, to have signed it, unless it was duly waived, and his failure to so sign, for this reason, amounted to a refusal to sign.</p> <p>“ 40. That if the adjuster of the defendant company did not deny liability until after the plaintiff had refused to sign a submission to arbitration unless the clause providing that the appraisers should not decide the liability of the company, should be stricken out, this was no excuse for the plaintiff’s refusal to submit to appraisers, and such denial of liability was no waiver of the plaintiff’s obligation to submit, upon a written request, to appraisal.</p> <p>“ 53. That if the denial of liability was made by the defendant after the plaintiff had refused to sign the arbitration paper ‘ F,’ or, after being duly requested, the plaintiff refused to enter into an appraisal, such denial of liability was no excuse for the refusal to enter into the appraisement, and the said denial was no waiver of the right to demand the appraisal or arbitration.</p> <p>“ 5±. That to have the effect of a waiver of appraisal, the denial of liability of the company must precede the refusal to appraisal or arbitration.</p> <p>“ 76. That the paper containing the submission to appraisal was in accordance with the terms of the policy, and as to the only point contained in it, the fixing of the value, was equally binding upon both parlies; that this provision of the policy was binding- and legal, and the plaintiff was bound, under the policy, to accede to that or a similar appraisal.”</p> <p>The Court, after charging the jury, said that the instructions given were in lieu of those asked.</p> <p>The instructions given are in part a compliance wiih said requests by stating the same propositions in different language, and where there is no such compliance, it is intended as a refusal without marking each request as given or refused. Some of said requests are mere recapitulations of the testimony, and so far as they are correct recitals of the evidence are complied with in the recapitulation of the testimony by the Court.</p> <p>Upon the questions arising upon the foregoing prayers for instruction, the Court charged—</p> <p>8. If the defendant’s adjuster, Warren, acting on behalf of defendant company, offered to adjust the loss on a basis of valuation of engine, two boilers, inspirator and connections, not destroyed by fire, at either $750, $800 or $900, or any other definite sum, and the plaintiff company, through its president, C. M. Hawkins, refused to accept said offer, and settled on said basis, then a difference did arise, and the jury would so find Yes to the 8th issue. The burden is on the defendant to establish the affirmative of this issue.</p> <p>9. If, after such difference had arisen, the defendant’s adjuster, L. R. Warren, sent to C. M. Hawkins the letter marked Exhibit E, and sent also accompanying said letter a paper marked Exhibit F, or a copy of said paper signed by' said Warren, as it purported to be, then the plaintiff did request, in writing, according to the requirement of the policy, that the damage should be assessed by appraisers. If such request w'as made and refused, the jury would respond to the 9th issue Yes. But if said request in writing marked F, was not delivered to C. M. Hawkins, and no request was handed to Hawkins other than that marked exhibit I, which is not signed by Warren as an adjuster of the defendant, then no request in writing was made, and the jurjr would respond to the 9th issue No.</p> <p>10. If L. R. Warren, the adjuster of the defendant company, declared to C. M. Hawkins, pre.-ident of the plaintiff company, in the office of the latter, without qualification, that he would not for his company, or his company wmuld not, pay one dollar or one cent for loss by reason of the fire, and walked immediately out of the said office, then such declaration was a denial of'liability on the part of the defendant, and the jury would respond to the 10th issue Yes. If the said Warren did not make said unqualified declaration, or if said Warren said only that he neither admitted nor denied liability, then there was no denial, and the jury ivould respond No to the 10th issue.</p> <p>11. If the said L. R. Warren wrote and caused to be delivered to said C. M. Hawkins the letter put in evidence and marked “ K,” then the jury will respond Yes to the 11th issue. I believe it is admitted that the letter was sent and received.</p> <p>13. If the defendant’s adjuster (Warren) declared, without qualifications, to said C. M. Hawkins, in the office of the latter, that his companj'- — meaning defendant company, or he, for the defendant company — would not pay one dollar or one cent of loss to plaintiff on account of loss by the fire, and immediately left said office, then such declaration was denial of liability.</p> <p>There was a verdict for the plaintiff on the issues, whereupon the defendant moved the Court for a new trial.</p> <p>Judgment was rendered in favor of the plaintiff, from which the defendant appealed.</p>

<p>Appeal — Settlement of Case — Amendment of Case — Filing Exceptions — Rule 27 — Pleading—Issues.</p> <p>1. When appellant’s counsel, on receipt of appellee’s case, sends the papers to the Judge to settle the case on appeal, without any “ request,” as required by The Code, §550, to fix a time and place for settling the case, the Judge is not required, in the absence of such request, to give notice, and the case settled will not be.set aside in this Court, especially when appellant’s counsel took no steps for three months towards securing a hearing before the Judge in regard to the matter.</p> <p>2. While the Court will allow a “ case ” to be withdrawn to be amended by the Judge when he expresses a willingness to correct an error or inadvertence, this will not be done when the Judge states that there is no error, and that he will “ make no change whatever in the case as settled.”</p> <p>3. When exceptions are filed under Rule 27, the recitals contained therein are not conclusive, but it is open to the appellee to controvert them, and to have the Judge pass upon their correctness in “ settling the case on appeal.”</p> <p>4. If an answer or reply is insufficient, the opposite party may move for judgment, and if the motion is refused, he can have his exception noted. If he fail to do this, the objection is usually waived.</p> <p>5. Judgment non obstante veredicto is only granted in oases where the plea confesses a cause of action and the matter relied on in. avoidance is insufficient.</p> <p>6. A party who fails to tender on the trial such issues as he deems proper, cannot be heard on appeal to complain that the issues'submitted do not cover the entire case.</p>

Civil ACTION to recover damages, tried at August Term, 1889, of Guilford Superior Court, before Graves, J. On the trial, it appeared that the plaintiff was a passenger on the defendant’s freight train from Winston to Greensboro. A passenger coach was attached to the train, and there was ample room in the same for the accommodation of all of the passengers. _ .

MotioN by the defendant, the Richmond and Danville Railroad Company, to remove this action to the United States Circuit Court in and for the Western District of North Carolina, heard before Graves, J, at August Term, 1889, of Guilford Superior Court.

Motion to remove action to Wake County, heard at January Term, 1889, of Granville Superior Court, before Bynum, J. The plaintiff brought action against the defendant to September Term, 1888, of Granville Superior Court, which term began on the 10th day of September, 1888. Service was accepted by the Governor on' the 15th day of September, 1888. The plaintiff was then allowed thirty days to file complaint, and the defendant was allowed sixty-five days to file answer.

This was an issue oe debt, arising in a proceeding to make real estate assets, and tried before Bynum, J., at February Term, 1889, of Guilford Superior Court. Noah E. Wyrick, executor of George Wyrick, deceased, filed his application to sell real estate to create assets for the payment of debts of his testator. Summons issued and complaint filed September 22d, 1884.

Civil action, originally begun before the Mayor of the town of Henderson, and tried before Armfield, J., at Spring Term, 1889, of the Superior Court of Vance County. This action was begun to recover the penalty of ten dollars incurred by an alleged violation of an ordinance of the plaintiff, whereof the following is a copy: • “Article 3, §1.

This was an acticw heard before Boykin, J., at Fall Term, 1889, of Ceaven Superior Court, upon a motion by the defendants, upon the pleadings and the affidavit, a copy of which is hereto annexed, for a severance and separate trial of said action against each defendant.

This was a civil action, tried before Shipp, J., at Spring Term, 1889, of New Hanover Superior Court. It was in evidence, on the part of the plaintiff, that his intestate, T. J. Southerland, was run over and killed by one of the trains of the defendant on the 8th day of March, A. D. 1887, at about half-past three o’clock in the afternoon. The train was running northward from Wilmington towards Weldon.

Civil action, for the possession of land, tried before Clark, /., at the August Term, 1889, of Buncombe Superior Court, upon the report of T. H. Cobb, referee, and exceptions filed thereto. The Court overruled the exceptions to the referee’s report filed by the plaintiff, and confirmed the report, and plaintiff excepted to the ruling of the Court confirming said report, and to each of his holdings overruling the plaintiff’s exceptions.

Civil ACTION, tried on exception to a referee’s report, before Armfield, J., at February Term, 1889, of Wilson Superior Court. Held: as a matter of law, that Thomas Felton received and used the money of his wife, and rents and profits of her land without her assent; that he was accountable to her for the same as upon an implied promise to repay; that this created a valid indebtedness and that a conveyance of property to satisfy said indebtedness was not void for…

This was a controversy submitted without action under sections 567-569 of The Code, tried before MacRae, J., at Spring Term, 1888, of the Superior Court of Edgecombe County. The following were the facts agreed: 1. That the plaintiff Claudia Redmond is a resident of the town of Tarboro, and has been for a number of years. 2.

This was a civil ACTION, instituted before a Justice of the Peace, and carried, by appeal, to the Superior Court of Chowan County, and tried before Boykin, J., at Spring Term, 1889, of that Court, upon the following facls agreed: 1. That the defendant is a duly incorporated town, and authorized under its charter (ch. 123, Private Laws of North Carolina, 1869 and 1870) to annually levy and collect taxes “ on all real and personal estate within said town,” etc. 2.

<p>This was a civil ACTION, tried before Gilmer, J., at Fall Term, 3888, of Mecklenburg Superior Court.</p> <p>The action was brought to recover possession of the' land described in the complaint. When the case was called for trial, the plaintiff announced that he was not ready to try, because of the absence of one T. J. Orr, a surveyor, by whom he expected to prove that the land described in the complaint was covered by the deeds from Phelps to Rothchilds, and from Rothchilds to the plaintiff, hereinafter referred to. The defendants’ counsel replied that defendants wished to try, and would admit what plaintiff stated he expected to prove by the witness Orr, and defendants did admit that the said deeds covered the land described in the complaint.</p> <p>The pjaintiff introduced evidence tending to show that the title was out of the State. Pie then introducéd a deed from Herman Phelps to S. &. F. Rothchilds, dated 18th June, 1868, and a deed from said Rothchilds to plaintiff, dated June, 1883. Copies of said deed are hereto annexed and made part of the case.</p> <p>J. J. Sims, a witness for the plaintiff, testified: “I was agent of S. & F. Rothchilds from 1870 to 1880, and took possession of land in dispute as agent. I rented the ‘Mary White cabin lot-’ from year to year and from 1870 to 1880; this was all the rent I got. The balance of the land was not in cultivation. The ‘Mary White cabin lot’ is not on the locus in quo. In 1880 I rented the lands covered by the deed of Rothchilds from Phelps to defendant Schenck, and told him I did not know the boundaries, but would rent him all land called for in that deed. He was to pay $3 for the first year and $5 for the second year. I turned over the land to E. K. P. Osborne in 1880 or 1881. The first conversation with Schenck was in 1879. The ‘Mary White cabin’ was burnt just before, perhaps the year before. I did not know I was renting lot No. 1110, but rented all covered by deed.”</p> <p>E. K. P. Osborne, a witness for the plaintiff, testified : “ I was agent for the Rothchilds in 1881, but did not know the lands I was to take charge of until I saw the deed to Roth-childs. Schenck was in possession; I applied to Schenck for rent. He agreed to pay rent, and afterwards I had a conversation with him about buying the land. I agreed to sell him the land covered by the Rothchilds deed. I did not get the money, and afterwards Schenck told me he had arranged to get it, and, if he did not, would pay rent. This was in 1881 to 1883.”</p> <p>PI. G-. Springs, in his own behalf, testified : “ I bought the land in 1883, and afterwards informed Schenck of the purchase. Schenck cultivated the land in wheat that year (1883). Schenck said he had rented it from Sims.”</p> <p>The defendants denied that they, or either of them, had ever rented the land described in the complaint, or any part of it, from Sims, or Osborne, or the plaintiff, and alleged that it was the “Mary White cabin lot” that Schenck had rented from Sims in 1879 or 1880, and from Osborne, and it was the property referred to in conversation with plaintiff. In order to estop the plaintiff as to this, the defendant proposed to show that an action had been brought in 1883 for a part of the wheat raised on the locus in quo, as rent, by plaintiff against the defendant Schenck, which resulted in a judgment for Schenck, and for this purpose the defendant introduced as a witness Capt. R. P. Waring, who testified that he was a Justice of the Peace for Charlotte township, Mecklenburg County, in the year 1883.</p> <p>The witness was then asked by the defendants’ counsel if he had tried an action between the plaintiff Springs and the defendant Schenck in that year, and if so, what "was the nature of the action?</p> <p>The plaintiff objected to this question on the ground that the papers in the case were the best evidence of the nature of the action, and should be produced.</p> <p>The defendants’ counsel then asked the witness if he had the papers, and could he produce them. The witness replied that he had made diligent search at the last trial of the case, and since, among his papers for the papers in said case, and had looked for them where .they should be; that they ought to be among his papers at his office at the mint, but, after diligent search there, he had been unable to find them, and that he thought they were lost.</p> <p>His Plonor found as a fact that diligent search had been made by the witness for the papers, and that they could not be found, and accordingly overruled the plaintiff’s objection, and plaintiff excepted.</p> <p>The witness, therefore, testified: “ I tried an action between the plaintiff Springs and the defendant Schenck in August, 1883. The action was brought to recover unthreshed wheat from Sehenck as rent due the plaintiff for the land on which it was raised.”</p> <p>The witness produced his Justice’s docket, and the defendant proposed to have the witness read the entries made therein by him -as Justice in the case of Sprivgs v. Sehenck, above referred to.</p> <p>The plaintiff objected to the entries in the docket as evidence because the docket was not a record, and the witness who made the entries is alive and can testify as to what he did.</p> <p>The objection was overruled, and the plaintiff excepted.</p> <p>The witness read from the docket the following entries: “July 19th, 1883, issued summons returnable 20th of July, 1883, at_o’clock __ M., and delivered same to C. C. King, constable. Summons returned executed. Case came on for trial. Continued to August, 1883. Both parties in Court, and, after patient investigation and elaborate argument of counsel, it is adjudged that the defendant is not a tenant of the plaintiff, so as to entitle him to the remedy of claim and delivery. It is, therefore, ordered that plaintiff return property described in the complaint to defendant. Judgment against plaintiff for eost in full. Appeal prayed and granted. Notice waived, with parties present. Appeal withdrawn.”</p> <p>Cross-examined.- — -The witness further testified: “I made these entries the evening the ease was tried. There is an entry on the docket of a motion made by plaintiff to make S. & F. Rothschilds parties plaintiff to use of Springs, but this motion was withdrawn or overruled. My recollection is that the action was for the recovery of some rent wheat under the landlord and tenant act. I have not been, able to find papers in the case.”</p> <p>The defendants on this point introduced Sehenck, who testified: “I was present at the trial before Capt. Waring. The action was brought to recover certain wheat grown on the land in dispute by me in 1883, and claimed by the plaintiff as rent. The plaintiff alleged in that suit, and offered evidence to show that I was his tenant, and had not paid the rent, and that he was entitled to wheat as rent.. I denied this, and the question was, whether I was tenant of plaintiff Springs in 1883, or not, of the lands in dispute.”</p> <p>The plaintiff here introduced E. K. P. Osborne, who testified : “ I was present at the trial before Waring, and appeared as attorney for the plaintiff. My recollection is that the’ question before the Justice was whether the title to real estate came in controversy, and the decision of the Justice turned on that point — the Justice, as I recollect, holding that, as Springs purchased from Rothchilds, there was no privity between him and Rothchilds, and he could not maintain the action, and that there was no tenancy.”</p> <p>The defendants then offered in evidence a deed from Robert F. Davidson to Gray Toole, dated 7th day of October, 18G9, covering the locus in quo, and registered in 1884.</p> <p>John T. Schenck, witness for the defendant, testified: “The deed was made to Toole, though I had paid half of the purchase-money, and it was understood and agreed at the time (7th October, 1869) that I should have a deed for half of the land. Afterwards the deed was made by Mr. Davidson to me for one-half interest, with consent of Toole, and in pursuance of the agreement. The deed was dated as of the time of agreement with me, because it w'as understood that it should have effect as of that time. It was registered April 28, 1883. It was made by Mr. Davidson to me, because we thought this would be the same as if Toole had conveyed to me, and Toole and I had fallen out. I rented the ‘Mary AVhite cabin lot’ from Sims in 1879 or 1880, and not the land in dispute. I had no idea of renting the land in dispute, and did not think I was renting it, or that Mr. Sims or Mr. Osborne thought so. I went into possession of the locus in quo shortly after Mr. Davidson gave us the deed in 1869, and cultivated it. First pastured on it and then cultivated it; have bad possession of it in this way ever since, using it as mine and Toole’s; went into possession of it with Toole’s consent, under the Davidson deed, the boundaries of which covered the land. I cultivated up to the line or fence of the ‘Mary White cabin lot,’ until shortly after the cabin was burnt, and then I rented the cabin lot, as I could cultivate it conveniently with my land after the cabin was burnt, and could get from my land over it better than before. The ‘ Mary White cabin lot,’ was surrounded by a fence, but the other land was not enclosed. I cultivated locus in quo from the time fence law was passed, in 1876, and after cabin was burnt, in 1879, I continued to cultivate it with the cabin lot. I agreed with Mr. Osborne to rent the cabin lot and some land on the other side of the road, and some near the St. Catherine’s mine tract. He did ask me to buy some land belonging to Rothchilds. Said he could not locate it, and that I would have to hunt it up. I was advised not to buy, and did not. I paid rent on the ‘Mary White cabin lot,’ but on no other land, and none on the locusin quo, and never rented it from- anybody, for we always claimed it. Told Mr. Osborne that I claimed land down there. In 1883 Mr. Springs, the plaintiff, sued me before Captain Waring, a Magistrate, for wheat raised on the disputed land, claiming that I was his tenant, and had not paid the rent, and that he was entitled to wheat under the landlord and tenant act. It was decided by the Magistrate that I was not his tenant. Neither Mr. Sims nor Mr. Osborne read the Rothchilds deed to me.”</p> <p>Frank Caldwell, a witness for defendant, testified: “ I knew the cabin lot, -where Mary White lived, and remember when ic was burnt. I know the land in dispute. Schenck worked it one year before the cabin was burnt, but not the lot where the house was. He worked that afterwards.”</p> <p>Defendants introduced other evidence tending to show that defendant worked the disputed land before the cabin was burnt in 1879, and worked the cabin lot afterwards, and that the cabin lot was enclosed by a fence.</p> <p>The plaintiff introduced the tax-books for the year 1875, for the purpose of showing that neither of the defendants listed the land in dispute for taxation that year.</p> <p>Plaintiff proposed to exhibit the tax-books to the jury for the purpose of showing that certain marks in the returns of Gray Toole were ditto marks, immediately under the previous return. The defendant objected to the plaintiff’s showing the books to the jury. His Honor ruled that it was not proper to exhibit the books to the jury, but the witness Cobb, who was on the stand, and Register of Deeds and keeper of the hooks, was allowed to describe the marks and their appearance from the books; and the witness under plaintiff’s examination described fully the marks and appearance of the returns, both the return of Gray Toole, and the return of the tax-payer immediately preceding his return — which last mentioned return, it appeared from the book, was for one city lot..</p> <p>Plaintiff excepted.</p> <p>There, was evidence that Toole had afterwards given the land in for taxes, and there was also evidence as to the possession of the land by the plaintiff, and those under whom he claims, and by the defendants, but it is not necessary to be stated to present the exceptions of the plaintiff.</p> <p>His Honor charged the jury as follows:</p> <p>“ The case turns on one or two points. Plaintiff alleges that he is the owner of the land described in the complaint, and is entitled to the possession, and these allegations the defendants deny. The plaintiff, in support of his allegations, offers a deed from Phelps to Rothchilds, and from the latter to him, which have been read to you. The burden is on the plaintiff; he must recover on the strength of his own title, not on the weakness of defendants’. He must show where the land he claims is, and that it is covered by his deeds. He says the deeds cover the “Mary White cabin lot.” The defendants admit the deeds cover the locus in quo, but not the “ Mary White cabin lot,” which plaintiff alleges, and defendants deny, is a part of the locus in quo. You must decide how this is upon the evidence, the descriptions in the deeds and complaint, the plats, position of streets and railroad, and other evidence before you. If you believe the evidence, the title to the land is out of the State, and being out of the State, the plaintiff can show title to it in several ways — first, by a paper title; second, by adverse possession for seven years under known and visible boundaries, and under colorable title by the plaintiff, and those under whom he claims; and third, by estoppel. The plaintiff claims to have shown title by adverse possession for seven years under colorable title, and also by estoppel. Color of title has been shown by plaintiff, as the deeds of Phelps to Rothchilds and Rothchilds to plaintiff, constitute color of title. He claims to have shown adverse possession for seven years, under his color of title by his witnesses, the agent of Phelps and RofShchilds, who stated that they rented the land and gave it in for taxes. If you find that plaintiff, and those under whom he claims, have had possession for seven years of the locus in quo, at any time prior to the bringing of this action, it would ripen their color of title into a good title and he would be entitled to recover. If the agent rented it and gave it in for taxes, that would constitute adverse possession. If the deed of Phelps to Rothchilds covers the land in dispute, including the ‘Mary White cabin lot,’ and the agents rented and gave that lot in for taxes for seven years before suit was brought, the possession of the ‘Mary White cabin lot’ would, by the law, be extended to the boundaries of the deed, and the plaintiff, and those under whom he claims, would, by construction of law, be in possession of the whole; and if you find this to be the case, the plaintiff would be entitled to recover, and you will respond to the first and second issues, Yes, and assess plaintiff’s damages. The defendants say that they have had possession of the locus in quo since 1876, the date of the passage of the stock law, claiming it under the Davidson deed, except the 'cabin lot,’ which they never claimed. You must decide who has had the póssession, the burden being on plaintiff. The plaintiff further alleges that Schenck entered as tenant of plaintiff, and under those whom he claims, and that Toole entered by collusion with Schenck, and that it would be a fraud in Schenck to claim title without first surrendering the possession: This is what is called an estoppel. This is perhaps the most material matter for you to consider under the first and second issues. If he entered as tenant, and Toole entered by his consent, or by collusion with him, they would be estopped to deny the plaintiff’s title. Plaintiff alleges that he, and those under whom he claims, rented the locus in quo to Schenck, including the ‘cabin lot.’ The defendants deny this, and say that they never rented the locus in quo from anybody; that they went into possession of it soon after they received the deed from Davidson in 1869, and have had possession of it ever since, claiming it as their own. That Schenck, in 1879 or 1880, rented the ‘Mary White cabin lot’ from Sims after the cabin was burnt, but that the ‘cabin lot’ is no part of the locus in quo. That it was an enclosed lot, and used and occupied as a distinct parcel of land from the locus in quo. You must decide how this is The burden is on the plaintiff to show the facts upon which he bases the estoppel. If Schenck was tenant and Toole entered by his consent, or by collusion with him, you will respond to.the first and second issues Yes, and assess plaintiff’s damages. It is contended by the defendants that the question of tenancy was tried and decided by Mr. Waring, a -Justice of the Peace, in an action between plantiff and Schenck to secure some rent-wheat grown on the locus in quo. If the question involved in that action was whether the title to real estate came in controversy and the case was decided on that point, and the question of tenancy was not passed upon, or if any other question was decided than the one of tenancy of the locus in quo plaintiff would not be concluded by the judgment in that action. If the question is to Schenck’s tenancy of the locus in quo was the sole question involved and was, on its merits, decided against the plaintiff, then plaintiiF would be bound by the judgment, but only for the year 1883, and the estoppel of the judgment would not cover any time but the year 1883, and the plaintiff would not be estopped to show that Schenclc rented before that year (1883) from Rothchilds, though Sims and Osborne are agents, and that he acquired the Rothchild’s title by purchase.”</p> <p>The issues were submitted as set forth in the record, and a verdict thereon returned for the defendant. Motion for a new trial by plaintiff refused.</p> <p>The plaintiff assigned the following errors:</p> <p>1. That his Honor admitted incompetent testimony as above set forth.</p> <p>2 That his Honor refused to admit- competent testimony as above set forth, and he refused to allow the jury to see the tax books as above set forth.</p> <p>3. For that his Honor charged the jury, thftt there must be an adverse possession of seven years, “wider known and visible boundaries” and under colorable title, &c., the plaintiff objecting to the words “under known and visible boundaries”</p> <p>4. Because his Honor charged that if, in renting the land from the agent of Rothchilds, Schenck honestly thought he was renting only the “ Mary White cabin lot,” and not the locus in quo, and there was a misunderstanding about what land was being rented, the tenant estoppel would not apply. (When the plaintiff moved for a new trial he assigned this error, and bis Honor remarked that he did not so charge the jury, but told them that it did not depend upon what either party understood, but upon what both agreed; and his Honor did so charge the jury).</p> <p>5. That his Plonor charged the jury that if the suit before Justice Waring was for rent-wheat for the year 1883, and the question tried and decided was whether Schenck was tenant of the premises, and it was adjudged that he was not tenant, they must find the issues for the defendant. (His Honor stated, when this error was assigned on the motion for a new trial, that he did not so charge the jury, but that he had charged them that the estoppel of the judgment couid not cover more time than the year 1883, or it did not prevent the plaintiff from relying upon any tenant estoppel existing before that year, nor upon anything which occurred since that year). • *</p> <p>There was a judgment for the defendants, and the plaintiff appealed.</p>

This was a civil action, tried before MacRae, J., at December Term, 1-889. of Cumberland Superior Court. The feme plaintiff and her husband had purchased tickets from Fayetteville, N. C., to Old Point, Va., and return,- with a condition endorsed on the tickets that they were to be stamped by the agent at Old Point.

Civil ACTION, tried before Merrimov, J., at January Term, 1889, of the Superior Court of Robeson County. It was admitted by the parties that the title to the land was out of the State, and the plaintiff admitted that the defendant had and held under the older grant. A plat of the plaintiff’s and defendant’s lands, showing the line of their respective tracts, and a lappage, A, B, C, D, A, is here given 'as a part of the case on appeal: A, B. C. D represents lap.

This was a Controversy, submitted without action, and heard before Armfield, J., at February Term, 1890, of the Superior Court of Guilford County. The facts agreed were as follows: 1. The county of Guilford is divided into school districts, ninety-five for white children and thirty-eight for colored children within six and twenty-one years of age, including two districts in the city of Greensboro, one for white children and one for colored children. 2.

<p>County Treasurer — Compensation— Pleading — Complaint— Mandamus to Board of Commissioners.</p> <p>1. The plaintiff, Sheriff and ex officio County Treasurer and Treasurer of the County Board of Education, brought an action against the Board of County Commissioners for compensation for the years 1881 to 1885. In his complaint he alleged that the defendants have not only refused to audit and allow him the sum demanded as commissions, but have refused to audit and allow him any commissions: Held, that an admission, by plaintiff that an allowance had been made him as treasurer of the educational fund is not an acknowledgment of a settlement in full for his services as County Treasurer: Held further, that an allegation that he has accounted for all moneys received and disbursed by him as County Treasurer during the years mentioned is not an admission that the defendants have made him an allowance on the moneys so accounted for, or that they have audited or paid his claim.</p> <p>2. If the Board of County Commissioners refuse to consider his claim, the proper remedy is by mandamus to compel action on the • subject.</p> <p>8. Under the law, every County Treasurer is entitled to compensation for his labor and responsibility, in no case less than two and a half per cent, per annum on the amount collected, where it cannot exceed two hundred and fifty dolíais.</p>

This was a civil ACTION, tried before Shipp, J., at March Term, 1889, of JoN.es Superior Court. There was judgment for the plaintiff, and the defendant appealed. The facts sufficiently appear in the opinion.

This was a civil action, tried before Bynum, J., at November Term, 1889, of the Superior Court of Lenoir County.

<p>This was an action brought before a Justice of the Peace in Guilford County, and carried, by appeal, to the Superior Court, tried before Graves, J., at December Term, 1889, of Guilfokd Superior Court.</p> <p>The plaintiff sued to recover the sum of $>100.86, overcharge for freight shipped from Philadelphia, Pa., to Liberty, N. C., and collected from, the plaintiff by defendant. The facts sufficiently appear from the opinion. His Honor, upon the evidence, directed the jury to find the following issue for the defendant:</p> <p>“ Did defendant assumie to pay the plaintiff the difference between $45.54 and $146.40? Answer, No.”</p> <p>Judgment was, thereupon, entered for the defendant, from which the plaintiff appealed.</p>

This was a civil action, tried before Graves, J., at February Term, 1890, of LeNOIR Superior Court, on exceptions to the report of a referee in overruling the demurrer of the defendant. The plaintiff alleged— 1. That R. G. Creech died on the 5th day of January, 1880, leaving him surviving the plaintiff, his widow. 2.

<p>Petition by defendant to rehear the decision of this, case, made at September Term, 1889. (See 104 N. C., 555).</p> <p>The facts sufficiently appear in the opinion.</p>

<p>This was a Motion, in the nature of an audita quar-rela, made by defendant in this Court.</p> <p>. The defendant, after notice to plaintiff, moved for an order directing plaintiff to deliver to him certain property described in the pleadings in this action, or to have the value of the same assessed by a jury, and that plaintiff be restrained from issuing execution to enforce the judgment heretofore rendered in this action, &c. (See this case, reported in 103 N. C., 266.)</p>

•This was a civil action, tried before Bynum, /., at September Term, 1889, of New Hanover Superior Court. The defendant had made a contract with one Prank Wood, by which the said Wood was to build, a house for him in the city of Wilmington, and the plaintiffs, who were engaged in the manufacture and sale of lumber, furnished material, which was used in the building of said house, to the value of $339.24.

<p>Appeal — Duty of Appellant to Have the Record Printed — Not the Duty of Counsel.</p> <p>1. Where, on a motion to reinstate an appeal dismissed for failure to print the record, the appellant alleged that he employed an attorney to represent him in this Court; that he was not aware of the rule requiring the record to be printed, and that if his attorney had notified him he would have had it printed, but did not allege that he applied to his counsel to learn the requirements of prosecuting appeals, nor that he furnished any money or took any steps to have the record printed: Held, that no excuse is shown for his negligence, and the motion must be denied.</p> <p>2. It is not the duty of counsel for an appellant to have the record printed.</p> <p>This was a motion made bj^ the defendant (appellant) to reinstate the appeal in this case. The action was tried at Fall Term, 1889, of Lenoir Superior Court, before Bynum, J., and the defendant appealed to this Court.</p> <p>When the case was reached, on motion of plaintiff’s counsel, the appeal was dismissed for failure of the defendant (appellant) to have the record printed.</p> <p>The facts appear in the opinion.</p>

This was a civil action, tried before Connor, J., at November Term, 1887, of Cumberland Superior Court, On the trial certain testimony offered by the plaintiff was excluded, whereupon plaintiff submitted to a nonsuit. Afterwards the Court directed the judgment of nonsuit to be stricken out and the case to be reinstated for trial, and the defendant appealed. The facts appear in the opinion.

This was a petition for the sale of land for partition, heard on appeal from the Clerk of Cumberland Superior Court, before Philips, J., at Chambers, on the 2d day of February, 1888. The petitition was as follows: “ The petition of D. K. McGill, Margaret McGill, Rebecca McGill, Neill McGill, Mary McGill, Annie Ellis, William Campbell, Daniel McGill— “1.

This was a civil action, tried before Merrimon, J, at April Term, 1889, of the Superior Court of Moobe County.

This was a civil action, for the recovery of land, tried before Shipp, J., at August Term, 1889, of the Superior Court of Moore County. The plaintiff claimed title in part under a deed executed by K. H. AVorthy, as Sheriff of Moore County, to A. IT. McNeill, John Shaw and J. C. Jackson, the land in controversy having been sold under sundry executions against one John Morrison. The defendants objected to the introduction of this deed, for the reason that A. PI.

<p>This was a motion to reinstate an appeal dismissed for failure to print the record.</p> <p>The facts appear in the opinion.</p>

This was a civil action to recover a penalty under section 1967 of The Code, begun before a Justice of the Peace and tried, on appeal, before Bynum, J., at November Term, 1889, of DupliN Superior Court. ' There was judgment for the plaintiff, and the defendant appealed. The facts are stated in the opinion'.

<p>Excusable Neglect — Judgment, by Default — Findings of the Court.</p> <p>1. Where a defendant employed counsel before the return term, and himself attended Court at that term for four days, and was then told by his attorney that his case should be attended to, and, relying upon this, he left, and judgment by default was entered against him: Held, to be a case of excusable negligence under The Code, section 274.</p> <p>2. This Court will not review the facts in such case found by the Court below.</p> <p>3. Where the Court below, adopting the findings of a former Judge, states of record that his own findings were after careful consideration of the evidence, etc.: Held, that this Court cannot entertain suggestions, on argument, that all the evidence had not been considered.</p> <p>4. Discussion by Merrimon, C. J., as to what constitutes excusable neglect.</p>

This was a civil action, originally commenced before a Justice of the Peace, and, on appeal, tried before Shipp, J., at August Term, 1889, of the Superior Court of Moore County. The action is brought to recover damages of the defendant for killing plaintiff’s bull by the negligent running of defendant’s train.

, at Fall Term, 1889, of Harnett Superior Court. The plaintiff obtained a judgment in ’the county of Har-nett, in the Court of a Justice of the Peace, against the defendants, on the first day of June, 1878, founded on a former similar judgment, for $46.04, with interest from the 19th of May, 1867, till paid, and for costs, .$1.60, on which was a credit. This judgment was duly docketed in the office of the Superior Court Clerk of that county on the 3d day of June, 1878.

Civil action, originally commenced before a Justice of the Peace, to recover damages for the killing of an ox by the negligent running of defendant’s train, and, on appeal, tried before Shipp, J.¡ at August Term, 1889, of the Superior Court of Moore County. The killing of the animal was admitted, and there was evidence as to its value. There was also evidence on behalf of the defendant company, tending to show that there was due diligence and no negligence.

<p>■ This was a case heard upon motion, before Graves, J., at July Term, 1889, of Granville Superior Court.</p> <p>The facts are stated in the opinion.</p>

This was a civil actios, tried at February Term, 1889, of the Superior Court of PersoN County, before Bynum, J. There was an appeal from an order overruling a demurrer. The complaint, demurrer and judgment are as follows: The plaintiff alleges— 1. That on the 31st of December, 1878, W. A. Lemlie obtained and had docketed in the Superior Court of Person Countjr a judgment against N. N. Tuck and W. PI.

This was a civil action, tried before Armfield, J., at January Term, 1890, of the Superior Court of Durham County, brought by plaintiff to recover of defendants a balance of about $1,000 on a note executed by defendants in the following words: “ On or before the first day of April, 1887, we, or either of us, promise to pay G. C. Farthing $1,340, with interest from date, at the rate of eight per cent., until paid. “ Joe H. Shields. [Seal.] “ Fb,ANCHAN Shields. [Seal.]…

Civil action, tried at February Term, 1889, of the Superior Court of Catawba County, before Philips, J. This action was to recover damages in the sum of $2,000 against the defendant above named for injuries suffered by Hiram Daily, an idiot, said injuries alleged to have been caused by the negligence of the defendant. W. A. Clay, a witness for the plaintiff, testified as follows: “ I live in Hickory; I am a boot and shoe maker; my shop is west of the public square and depot.

This was a motion to vacate certain judgments, heard by MacRae, J., at Greensboro, November 6, 1886. It appears that a cause in equity was pending in the Circuit Court of the United States in and for the Western District of North Carolina, wherein the Richmond and AVest Point Terminal Railway and Warehouse Company were the complainants, and the Danville, Mocksville and Southwestern Railroad Company and others were defendants.

This was an APPLICATION to the Superior Court of Sujrey County by the plaintiff, administrator of A. Hines, deceased, to sell real property of the decedent to make assets to pay deb’s, and heard on appeal from an order of the Clerk, granting license to sell, &c., before Gilmer, J., at November Term, 1889, of said Court.

This is an appeal from a judgment of Gilmer, J., rendered at November Term, 1889, of tlie Superior Court of Stokes County, affirming the judgment of the Clerk of the Superior Court, refusing to grant the application of the petitioner to have her infant daughter, Mary E. M. Calhoun, aged eleven years'and five months, apprenticed to her husband, John H. Ashby, and apprenticing said infant to defendant. The petition was filed May 6th, 1889.

<p>Special Proceedings — Real Estate — Asse/s — Final Decree — Motion in the Cause — Removal of Administrator — Jurisdictional Functions of the Cleric — Irregularities.</p> <p>1. Where, in special proceedings npon petition to sell lands for assets, there had been an order of sale, sale had been made, duly reported and confirmed, and the commissioner authorized to make title to the purchaser: Held, that this was a final decree.</p> <p>2. Such decree will not be set aside upon motion in the cause, it not appearing that there was any substantial irregularity, but must be attacked in an independent action regularly constituted for this purpose.</p> <p>3. It -is improper to join a motion to remove an administrator to such a motion. The Clerk, on questions of removal, exercises a jurisdictional function as Clerk, while the other is a special authority conferred upon him by statute. 4. Final judgments may be set aside upon irregularities shown on motion in the cause made in apt time.</p>

This was a civil ACTION, tried at Fall Term, 1889, of RICHMOND Superior Court, before Shipp, J. In a special proceeding lately pending in the Superior Court of the county of Richmond, brought to compel partition of the lands therein specified, the Court, among other things, adjudged that a certain fund of $500, belonged to the plaintiffs, and directed that the same be safely invested for their benefit, as alleged and explained in the complaint in this action, the material -…

This was a civil action, tried at September Term, 1889, of Mitchell Superior Court, before Philips, J. The facts of this case sufficiently appear in the opinion.

This was a civil ACTION for the value of property, tried at the Fall Term, 1889, of Mecklenburg Superior Court, before Connor, J. The facts sufficient for understanding the case are as follows: Gregg, Garvey & Co., of Chicago, sent from that place, November 25th, 1888, the following telegram to John Van-Landingham: “Wire best offer for sacked middlings No. 2324, now at Charlotte.” To which VanLandingham replied, November 26th : “ Nineteen dollars per ton; must have reply…

<p>This was a civil action, tried at Fall Term, 1889, of Mecklenburg Superior Court, before Connor, j.</p> <p>The plaintiff brought this action to recover $300 due by note, less $68.25, balance of the purchase-money of a tract of land sold and conveyed by him to the defendant some time before the bringing of the action.</p> <p>The defendant admitted the purchase of the land by him, the execution of the deed therefor, and the execution of the note, but he alleged as a defence “ that the plaintiff agreed to sell to the defendant a tract of land containing 111 acres for $900; that a deed was made and duly executed, which was supposed to contain 111 acres, and delivered to the defendant; that, at the time it was delivered, it was agreed and understood between the plaintiff and defendant that the land was to be surveyed, and that all the purchase-money should not be paid until the land was surveyed to ascertain how many acres were in said tract,” &c.</p> <p>The answer was amended, without objection, so that it further alleged “ that, after the execution and delivery of the deed, and before the due-bill or note in question was delivered, and before any part of the purchase-money had been paid, the plaintiff agreed with the defendant that the land in question should be surveyed, and, if there should turn out to be a less number of acres than 111 acres therein, that plaintiff would make it good to the defendant in the settlement of the purchase-money.”</p> <p>The Court submitted these issues to the jury:</p> <p>1. “ Was it agreed between the plaintiff and defendant, before payment of the purchase-money, that the land should be surveyed, and that if there was less than one hundred and eleven acres, plaintiff would make the deficiency good to the defendant?</p> <p>2. “How many acres were there in the tract?</p> <p>3. “ What amount, if any, is plaintiff due defendant on account thereof?”</p> <p>The evidence produced on the trial 'was, in material respects, very conflicting. The defendant testified, in part, as follows: “Some time about August, 1888, plaintiff met me on the place; asked me if I wanted to buy it, and asked $1,000 for it;-he said it was 111 acres; I told him I would give $900; he said he would see me again, and afterwards said he would take $900; I said ‘all right’; about the first of November I came to town, saw Mr. Clarkson and told him I wanted $500; he asked me how much land I had, and I told him 111 acres; he said I could get it; plaintiff afterwards went with me to Clarkson’s office, and said he would bring old deed to get a description of the land; plaintiff brought his deed, which called for one hundred acres, and said he had sold off a part; Mr. Clarkson drew up the deed from plaintiff to me and the mortgage I gave for the $500; Mr. Clarkson called McGee’s attention to his deed, calling for 100 acres, and McGee explained it by saying that the land was not run when the deed was made; said the original deed contained 267 acres, and parts had been sold off; Mr. Clarkson said, ‘You had better have the land run;’ we agreed to do so; Mr. Clarkson gave me the check; I asked McGee if it did not run out right if he would make it right; he said that he would; this was before I paid him the money; in a week or so we had the survey made; the surveyor did not give us the figures that day; we made an arrangement by which the surveyor was to leave the plot at Mr. Clarkson’s office; I offered to pay the balance, and he objected; the number of acres was an inducement to make the purchase.”</p> <p>The plaintiff proposed to prove by one witness the value of the land. Upon objection, the Court rejected' the proposed evidence, and the plaintiff excepted.</p> <p>His Honor charged the jury that, unless there was an express agreement between the parties before payment of the purchase-money that, if there was less than 111 acres, plaintiff would make the deficiency good to the defendant, they should answer the first issue No. That in arriving at a conclusion whether there was such an agreement, the jury should consider the whole testimony, and all the circumstances of the case, and if they should believe, by a preponderance of the evidence, that plaintiff did agree, before the purchase money was paid to him, to make good to defendant a deficiency in the number of acres, they should answer the first issue Yes.</p> <p>The jury answered the first issue Yes; the second _issue 82-|; the third issue $230 85.</p> <p>Motion for a judgment non obstante veredicto by plaintiff. Motion overruled.</p> <p>There was judgment for the plaintiff for a small balance found to be in his favor, and he,'having excepted, appealed to this Court.</p>

This was a civil action, tried before Connor, J., at August Term, 1889, of Meciclenburg Superior Court. The parties waived a jury, and the Court found the facts.

This was a civil actioN, for recovery of land, tried before Clark, Plaintiff introduced in support of his title, and to show title out of the State, a grant from the State to Martin Gam-bill for 900 acres of land in Wilkes County, entered in 1798, surveyed in 1799, and granted in January, 1801, which said grant described the land (following the description in the entry and survey) as lying in Wilkes County, from which Ashe was formed in 1800.

<p>This was a civil ACTION, tried at the Fall Term, 1889, of Gaston Superiof Court, before Connor, J.</p> <p>The facts are sufficiently stated in the opinion.</p>

This was a crvin action, tried at the Spring Term, 1889, of Henderson Superior Court, before Brown, J. The case came up by appeal from a Justice’s Court overruling defendant’s demurrer, and giving judgment for plaintiff. The Superior Court sustained the ruling of the Magistrate, and gave judgment for plaintiff. The defendant appealed.

<p>This was a civil action, for the recovery of real property tried at (he August Term, 1889, of Mecklenburg Superior Court, before Connor. J.</p>

<p>Action to Recover Land — ■ Special Proceeding — Guardian ad litem — Service on Infants — Irregularities—Motion.</p> <p>1. In an action for the recovery of the possession of land, defendant, in support of his title, offered in evidence a special proceeding and order for sale of land for assets and deed thereunder, to which plaintiff objected because it did not appear that the guardian ad litem appointed for the feme plaintiff, who was a party to the proceeding, was served with summons, or appeai’ed or filed any answer. Summons was served upon the infant according to law: Held, there was not such irregularities as made the proceeding void.</p> <p>2. At most, such proceedings were only voidable, and could not be attacked collaterally except for fraud or by motion in the cause when made in apt time.</p> <p>3. The fact that the purchase-money was not paid until three months after sale, and that deed was not made directly to the bidder in accordance with the order of sale, but to a third party, who advanced the money for him, were not such as the plaintiff (the petitioner) could complain of, after the lapse of years, even though it might have been the duty of the Court, if these facts had' thus appeared, to have set aside the sale.</p> <p>4. When the executor, in this case, exercised a power conferred by an order of the Court in the execution of the deed, but failed to recite therein the source of his authority, the implication is that he exercised the power so conferred.</p>

<p>This was a civil ACTION, tried at February Special Term, 1887, of the Superior Court of Cabarrus County, before Boykin, J.</p> <p>The plaintiff declared upon these causes of action as follows:</p> <p>1. That he is the owner of the following described tract of land, situate in this county, viz: Beginning at two white-oaks on White’s line, near the creek; runs thence with the line south 7 east 68$ poles to a stake; then north 74 east 68 poles to a red-oak (W. Bost’s heirs’ corner); then north 7 east with a lane 34 poles to a stone; then south 65 east 54 poles to an iron wood on the bank of the creek (Bost’s heirs’ corner); then north 62 east 20 poles with the creek to a stake in the creek; then south 72 east 15 poles to a stake (Allen Bost’s corner); then north 21 west 36 poles to a persimmon (Allen Bost’s other corner, in an old field); then north 52J west 32-|- poles to a stone in the road (A. Bost’s corner); then north 81-| west 10J poles to the center of a spring (Bost’s corner); then north 45 east 4 poles to a locust grub (A. Bost’s corner); then north 46 west 20 poles to a stake on the bank of a gully; then south 63 west 45 J poles to a sycamore on the bank of the creek; thence with the meanderings of the creek 68 poles to the beginning.</p> <p>2. That, on or about-day of_, 1881, the defendant wrongfully entered upon said tract of land, and upon the north bank of the creek erected a dam, or placed obstructions, so that the water in said creek was diverted, in times of freshet or high water, from the channel of the creek, and, in consequence of said dam, or obstructions overflowed and greatly damaged plaintiff’s lands on the south side of said creek, to wit, to the amount of five hundred dollars.</p> <p>For a second cause of action, plaintiff alleges—</p> <p>1. That he is the owner of the tract, of land described in paragraph one of his first cause of action.</p> <p>2. That, on or about —_day of_¡ 1881, the defendant wrongfully entered upon the said tract, cut down the timber, trod down the grass, and other wrongs did to the said tract of land, greatly to plaintiff’s injury, to-wit, to the amount of one hundred dollars.</p> <p>For a third cause of action, plaintiff alleges—</p> <p>1. That he is the owner of the tract of land described in paragraph one of his first cause of action.</p> <p>2.That, on or about the_day of-, 1881, the defendant erected on the north bank of the creek known as “North Anderson’s Creek,” a wall and other obstructions, so that in times of freshet or high water, in consequence of said wall and obstructions, the water of said creek was caused to overflow and flood, the lands of plaintiff lying-on the south side of said creek, to his great damage, to wit, five hundred dollars</p> <p>Wherefore, plaintiff demands judgment for five hundred dollars, his first cause of action; for one hundred dollars, his second cause of action, and for five hundred dollars, his third cause of action, and for costs.</p> <p>The following are the issues submitted to the jury and the answers thereto:</p> <p>1. Did the defendant, in 1881, enter unlawfully on the plaintiff’s lands described in the complaint, and cut and destroy timber thereon, as alleged in the complaint? Ans. Yes.</p> <p>2. What damages, if any, has the plaintiff sustained thereby ? Ans. Twent}''-five dollars.</p> <p>3. Did the defendant, in 1881, unlawfully build a wall and other obstructions on the north side of Anderson’s Creek, as alleged in the third cause of action, whereby the water of Anderson’s Creek was caused to overflow’- the plaintiff’s land, as alleged in the third cause of action ? Ans. Yes.</p> <p>4. What damage, if any, has the plaintiff sustained thereby ? Ans. Forty dollars</p> <p>The plaintiff offered several deeds as evidence of title, which are not necessary to mention. Among the number was one from R. W. Allison, Clerk and Master, to Allen Boyer. The defendant, objected to the introduction without stating the grounds of objection, and the plaintiff offered certain records of the Court of Equity tending to show that the deed was executed under a decree of said Court. It does not appear that the defendant subsequently asked any instruction, or in any way elicited the opinion of the Court as to the effect of the record, or whether the deed from Allison was considered as color of title or as a link in the plaintiff’s chain of title.</p> <p>One Stowe was introduced as a witness, and testified, in substance, that he was present at the survey of the Andrew Oarriker land; that the channel of the creek at that time was the red line on the diagram. He also testified as to the ownership of the land before the same was owned by Andrew Oarriker and David N. McEachern.</p> <p>He was cross-examined by the defence as to the location of the old channel, and the extent of time of his knowledge thereof.</p> <p>To contradict said witness, defendant’s counsel procured from the office of the Register of Deeds a certain deed from Seneca Turner to John W. Morgan, and was proceeding to read the contents of the same, when the plaintiff’s counsel demanded information as to the nature of said instrument, which was given.</p> <p>There was objection by plaintiff, and thereupon the defendant introduced the said deed in evidence. This deed conveys land described in the complaint, and is made a part of this, case, and bears date the 1st day of February, 1836.</p> <p>Thereafter, said witness Stowe was permitted to testify as to the location of the channel in 1845, prior to the possession of the common ancestor. Certain witnesses for the plaintiff had testified that the channel of the creek had changed. Witness for the defence had testified that the channel remained as it was thirty or forty years ago.</p> <p>The defendant objected to this evidence of the witness Stowe. Objection overruled, and defendant excepts.</p> <p>The other material facts are stated in the opinion of the Court.</p> <p>From the judgment in favor of plaintiff, the defendant appealed.</p>

, at -June Term, 1887, Buncombe Superior Court. The summons in this case directed the defendants “to appear before the Judge of the Superior Court at the Court to be held for the county of Buncombe at the court-house in Asheville, on the third Monday after (he __Monday of November.” The summons was issued 2d July, 1883, and was served personally on the defendants on the 15th October. The term of the Court began 17th November, and was a four-weeks term.

This was an action for the recovery of land, tried before Connor, J., at April Term, 1889, of Franklin Superior Court. The facts are stated in the-opinion.

This was a civil actioN, tried at Spring Term, 1890, of the Superior Court of Gaston County, before Philips, J. The plaintiff demanded $200 for injuries to a horse, which he alleged was injured by the negligence of the defendant, and which was denied by the defendant, as-set out in the pleadings, all of which, with the issues submitted to the jury, appear in record.

This was a civil ACTION, tried before Boykin, J., at Spring Term, 1889, of the Superior Court of Chowan Count}'. The purpose of this action is to recover damages for alleged trespasses of the defendant on the land specified in the complaint.

This was a civil ACTION, tried before Connor, J., at Fall Term, 1888, of YadkiN Superior Court.

This was a civil ACTION, commenced before a Justice of the Peace and carried by appeal to the February Term, 1889, of Iredell Superior Court, and tried before Shipp, J. By consent a jury trial was waived, and his Honor found the facts as follows: 1.

<p>MotioN to vacate warrant of attachment, heard by consent before Gilmer, J., at Chambers in Greensboro, on the 12th day of December, 1889. Action pending in DavidsoN Superior Court.</p> <p>The facts sufficiently appear in the opinion.</p> <p>From the judgment vacating the attachment, plaintiffs appealed.</p>

<p>This was an Application for a mandamus to compel the Commissioners of Moore County to issue to the plaintiffs license to sell spiritous liquors in the town of Sanford, in said county, by the measure less than a quart, heard before Bynum, /., at the Spring Term, 1890, of the Superior Court of Moore County, upon the following facts, which were agreed upon by the parties, to-wit:</p> <p>1. That the town of Sanford has been duly incorporated by the General Assembly of North Carolina. (Acts 1873-74, chapter 76.)</p> <p>2. That it has a Mayor, Board of Commissioners, Constable, and police force.</p> <p>3. That it has no licensed bar-rooms or saloons within the corporate limits.</p> <p>4. That the sale of spiritous liquors, wines or medicated bitters, or any liquors or substances, by whatever name it may be called, which produces, or may produce, intoxication, is prohibited within two miles of Sanford M. E. Church, in Moore County, by the Acts of 1889, chapter 362, section 1, ratified 11th day of March, 1889.</p> <p>5. That at the time of the ratification of said act a church building intended for divine worship had been commenced in the corporate limits of Sanford by the trustees of the M. E. Church, South, but it was not then completed. No services had been held in it, nor had it been dedicated. Said building had a roof and tower and a floor, and was weatherboarded, but the door, shutters and window-sash were not in. It was situated upon a lot conveyed to the trustees of the M. E. Church, South, on 28th day of March, 1888, for the purpose of erecting thereon a church, and said building w'as intended for and recognized and known as the Sanford M. E. Church, although it was not completed, and was in process of erection. That services have since been held in said church, and it is now recognized and known as the Sanford M. E. Church.</p> <p>6. That said church is about 300 yards from the point where the plaintiffs propose to locate their place of business.</p> <p>7. That the defendants in the exercise of their discretion have refused to grant to the plaintiffs leave and license to retail spiritous, vinous and malt liquors, or either of them, at their place of business in Sanford, although requested to do so.</p> <p>8. That they were furnished with evidence of the good moral character of the plaintiffs.</p> <p>9. That at the time of the ratification of said act, there was no licensed saloon in Moore County’.</p> <p>Upon the foregoing facts, the Court, being of opinion that the plaintiffs were not entitled to the mandamus asked for, gave judgment dismissing the petition, from which the plaintiffs appealed.</p>

This was a CONTROVERSY submitted without action, under The Code, § 507, tried before Armfield, J., at July Term, 1889, of the Superior Court of Rockingham County, The following is a copy, of so much of the case submitted as need be reported: “ 1.

This was an action to recover land, tried before Merrimon., J., at August Term, 1889, of the Superior Court of RowaN County. The plaintiff introduced in evidence a deed from the Sheriff of Rowan County to the plaintiff, executed the 18th day of May, 1888, conveying to the plaintiff the lands mentioned and described in the complaint, said deed having been duly probated and registered.

This was a motion to set aside a judgment rendered at May Term, 1888, of CumberlaND Superior Court, heard before Mocliae, J., at December (Special) Term, 1889, of said Court.

Civil action, to recover land in Jackson County, removed for trial to Macon County, and tried before Clark, J., at Fall Term, 1889 of the Superior Court of said county. The facts are stated in the opinion.

This ACTION, tried at November Term, 1889, of MadisoN Superior Court, before Whitaker, J., was brought to recover of the defendant corporation a certain amount alleged to be due upon a bill of exchange in the following words and figures, to wit: “$950. Hot Fpeixgs, Nevember 19, 1887. “Ninety days after date, pay to the order of H. T. Rum-bough, Esq., for account of J. H. Rumbough, nine hundred and fifty dollars.

<p>Premature Appeal — Interlocutory Judgment — Exceptions.</p> <p>1. When the Court sets aside a verdict as to one issue, and enters an interlocutory judgment as to the other, the proper course of the party injured is to note an exception and go on to the trial of the remaining issue, so that the whole appeal may be considered at once.</p> <p>2. Appeal from such interlocutory judgment, and at such stage of the proceeding, is premature and will be dismissed.</p>

This was a civil aovion, tried before Phillips, J., Spring Term, 1890, Mecklknbubg Superior Court. The alleged nuncupative will of Rebecca Annie Haygood was proven by the witnesses thereof before the Clerk of the Superior Court in the county of Mfcklenburg. Notice in that respect was given, and such proceedings were had as brought the matier of the proof of such will into the Superior Court of that county.

This was a civil actjoN, tried at Fall Term, 1888, of Cherokee Superior Court, before Boykin, J. The plaintiffs allege in their complaint that they are the owners in fee of the land specified therein; that the defendant is in possession thereof, and unlawfully withholds the same from them, &c. The defendant admits that the plaintiffs are part owners in fee of the land, but it alleges that it is the owner in fee of an undivided one-third part thereof, and is tenant in common…

<p>This was a civil ACTION, tried before Clark, J., at Fall Term, 1889, of Buncombe Superior Court.</p> <p>The facts are set out in the opinion.</p>

This was a MOTION for a new trial, heard upon the return of the Judge to a certiorari. The case was tried at Spring Term, 1888, of TbaNSYLVANIA Superior Court, before Mac-Rae, J.

Civil action, tried before Clark, J., at Fall Term, 1889, of the Superior Court of MadisoN Count}’. The plaintiffs allege that they are the owners in fee of the land mentioned in the complaint; that there was a dwelling-house situated thereon, and that the defendant unlawfully tore down and removed the same from said land, and this .•action is brought to recover damages therefor.

This was a civil action to recover land, tried at the August Term, 1889, of Buncombe Superior Court, before Clark, J. The plaintiffs introduced deeds conveying to them, and those under whom they claimed, the lands described in the ' complaint, in fee.

<p>This was a civil action for damages for trespass, tried at August Term, 1889, of Buncombe Superior Court, before Clark, J.</p> <p>The facts are set out in the opinion.</p>

This was a civil actioN, tried before Armfield, J., at October Term, 1889, of Waice Superior Court. The action was brought in the name of Larkin Smith, by his next friends, Ferrell and wife, Wiggs and wife, appointed such by the Court, against Charles Smith.

<p>Civil aotion, tried before Clark, J., at September Term, 1889, of the Superior Court of Transylvania County.</p> <p>The facts in this case are stated in the opinion. ’</p>

This was a civil action, tried at the March Term, 1890, of TransylvaNIA Superior Court, before Connor, J. The plaintiff was assignee of one A. C. Williams, of a purchase-money note due for land and secured by a mortgage thereon, executed about the same time, or shortly thereafter. The note and mortgage were executed by defendant Sallie P. Wheeler, then and since wife of defendant W. PI.

This is an Application of the defendant therein to rehear the case of Allen v. W. & W. R. R. Co., 102 N. C., 381, decided at the February Term, 1889.

<p>This was an action- to recover land, tried at Fall Term, 1889, of Montgomery Superior Court before Merrimon, J.</p> <p>Plaintiff introduced a grant from the State to James Nall for 300 acres, dated 7th June, 1799, and showed intermediate conveyances and descent of the land embraced in said Nall grant to himself, and offered evidence tending to locate the same, so as to cover the land in dispute, and showed the defendants in possession of a part of the lands embraced in the said Nall’s grant, to-wit, all of the part in dispute.</p> <p>The defendants offered in evidence a grant to'Humphrey Ballard, dated lltlx October, 1783, for 193 acres, containing the following boundaries : “Beginning on the side of Gallon Creek at a small oak, corner John Edwards; thence north 200 poles to a pine between a post oak and pine; thence east 140 poles to a black oak, a line-tree of Mark Bennett’s; thence south 236 poles to a white oak, a corner of said Edwards; thence north 74° west 146 poles to the beginning.”</p> <p>The defendants, in attempting to locate this grant, offered parol testimony for the purpose of showing that the beginning corner of the said Ballard grant started at a point 300 yards distant from Island Creek (which it is agreed by counsel is the same as Gallon Creek), and defendant himself, being examined, states that Island Creek is a well-known creek with an average width of 12 feet, having in many places bottom but no swamp lands; that the land on either side is rolling; that the point at No. 1, as contended for in the Ballard grant, is about 300 yards from the creek; that opposite No. 1, in the direction of the creek, is a hillside running down to the creek; that on the east side of the creek, and between the creek and No. 1 on plat, there is plenty of white oak trees, and more than any other kind. There are two bluffs. Above the bluffs it is cleared on both sides of the creek, and below the bluffs the bottoms are cleared on both sides of the creek.</p> <p>Upon this statement of facts, and in apt time, plaintiff insisted that the defendant is confined to the bank of Island Creek for the beginning corner, and cannot locate a beginning corner 300 .yards from the bank (or side).</p> <p>The Court declined so to rule, and the plaintiff excepted. The Court ruled that the beginning corner is a small oak, corner of John Edwards, and that defendants might, if they could, show by parol that this corner is at No. 1 on the plat, which is admitted by defendants to be 300 yards from the hank of Island Creek.</p> <p>Upon this ruling of the Court, plaintiff submitted to a nonsuit, and appealed.</p>

This was a civil action, tried at December Special Term, 1889, of CUMBERLAND Superior Court, before McRae, J. The material points of the complaint are as follows: “2. That during the month of September, 1886, the said John Hagins, while in the employment of the defendants, received an injury, by which, and as a result therefrom, he lost his right hand and a part of his right arm. “3.

This was a civil actioN, for recovery of land, tried before Clark, at February Term, 1889, of the Superior Court of UNION County. Plaintiff offered in evidence two deeds executed to himself by the widow and heirs at law of Uñas Horn, deceased, bearing dates, respectively, 1843, 1851, both of which deeds were duly recorded, and purport to convey in fee-simple, a tract of land, as represented on the plat, by the boundaries 1, 2, 3, Plaintiff next offered in evidence— 1.

This was a civil action, for damages, brought by the plaintiffs against the defendant for a failure to deliver a certain telegram, tried before Bynum, J., at the April Term, 1889, of Caswell Superior Court, upon the following issues: 1. Did the defendant corporation contract to forward immediately and'promptly deliver the telegraphic message described in the complaint? Ans. Yes. 2. Did the defendant negligently and carelessly fail to forward and deliver said message? Ans.

This was a civil action, for the possession of land, fried at the December Term, 1889, of the Superior Court of CUMBERLAND County, before MacRae, J. The action was begun by issuing a summons against Raiford Smith and Jack Inman, April 10, 1886. Inman who held as a tenant under Smith was not served.

<p>It appears that the defendant Cheatham was Register of Deeds of the county of Vance, and, as such, renewed his official bonds on the 7th day of December, 1885, in the sum of $5,000, with his co-defendant Young as surety thereto, as required by law. The following is a copy of the condition of that bond:</p> <p>“ The condition of the above obligation is such that whereas Henry P. Cheatham, the above bounden, has been duly elected Register of Deeds for Vance County for the term of one year from the_day of December, 1885: Now, therefore, if the said Henry P. Cheatham shall safely keep the records and books belonging to his office, and at all times truly and faithfully discharge the duties of his said office during his continuance therein, then this obligation is to be void, otherwise to remain in full force and effect.”</p> <p>On the 17th of September, 1886, the relator delivered to the said Register of Deeds for registration, a deed of mortgage of real estate to secure the payment of a single bond for $1,000, due October 1, 1887. The Register of Deeds negligently registered this deed of mortgage, and omitted from the registration thereof the words “ one thousand dollars,” and placed on the registry in place thereof, the words “one hundred dollars,” so that it appeared from the registrjr that the mortgage debt was “one hundred dollars” instead of “one thousand dollars,” the true amount.</p> <p>This action is brought upon the official bond of the said Register of Deeds for damages, and it is assigned as a breach of the condition of this bond that the said Register thus failed to truly register the deed of mortgage, &c.</p> <p>The defendant demurred to the complaint, assigning as ground of demurrer that it failed to state facts sufficient to constitute a cause of action. The Court overruled the demurrer, and the defendants, having excepted, appealed.</p>

This -was a PETITION for a writ of certiorari filed by the plaintiff in this Court. The facts sufficiently appear in the opinion.

<p>This was an action, tried at the Special Term, January, 1889, of the Forsyth Superior Court, before Brown, J., and was commenced to try the title to the office of the Sheriff of Forsyth County. The election had been held on the 6th day of November, 1888, and the defendant had been duly declared elected, and was inducted into said office. The relator of the plaintiff was the opposing candidate, and claimed that illegal votes had been cast for the defendant in sufficient numbers to nullify his election and give title to the relator. The defendant, on his part, alleged that numbers of illegal votes had been cast for the relator, and that these should be deducted from the relator’s aggregate. All this, as well as other pertinent matters, is fully and particularly set out in the pleadings.</p> <p>The facts material to the discussion of the lirst, second, third, eighth, ninth, tenth, fifteenth and sixteenth exceptions are embodied in the opinion of the Court.</p> <p>The plaintiff filed a challenge to the array of the jury, drawn for the said special term, before the jury were called and empanelled and in due time.</p> <p>The said challenge is set out in full in the transcript herewith sent.</p> <p>Issue being joined as to the said challenge to the array, the same was tried by the Court, the witnesses being examined before his Plonor, the presiding Judge, who upon the evidence adduced, found the following facts, the defendant offering no testimony:</p> <p>THE FINDINGS OF FACT AND ORDER.</p> <p>“ That a special term of this Court was ordered to be held for the trial of civil business, commencing January 6, 1890, and that such Court was duly ordered prior to December 1, 1889; that at the December (1889) meeting of the Board of Commissioners of Forsyth County, the Board proceeded" to draw the jurors for said special term; that said jurors were drawn in manner as follows, to-wit: The Board being in regular session, the Sheriff, M. E. Teague, the defendant in this action, brought into the Commissioners’ room a boy under ten years of age and opened box No. 1; that the boy drew out a scroll containing a name of a juror from said box, and handed it to the said Sheriff, who read the name thereon and undertook to call it out; that none of the Commissioners read or saw the name on said scroll, and no one else did, except said Sheriff, who immediately put said scroll into box No. 2; that each scroll was read and drawn in this way, without any one seeing tire name thereon, except said Sheriff, until twenty-four jurors were drawn from box No. 1, and put in box No. 2 by said Sheriff; that there were one or two scrolls that the Clerk to the Board, or some other person, assisted the Sheriff to read, but no more.</p> <p>“ That it appears that nine (9) of said jurors were from Clemmonsville township, much the smaller township in the county, with a voting population of from 125 to 150; that only one juror came from Winston township, which has a voting population of 1,800, and one juror only from South Fork township, a very large township, and none from Ker-nersville, another large township.</p> <p>“ That the Chairman of the Board, and the Clerk wrote down such names upon the list of jurors as Sheriff Teague called out, and the list was put in the hands of said Sheriff, who summoned or caused said jurors to be summoned.</p> <p>“ That Clemmonsville township, up to March, 1889, was a part of Davidson County, and by Act of Assembly was made a part of Forsyth County; that at September (1889) meeting, the Commissioners of Forsyth caused the names of fifty-seven persons from said township to be placed in the jury box; that they selected said persons from the tax-lists of 1889, and which went into the. Sheriff’s hands in September, 1889, and also from a list furnished them by the Register of Deeds of Davidson County, and also called in one Womack, who resided in Clemmonsville township to assist them.</p> <p>“That at the time of the drawing of the jurors at said December meeting, it was well known by said Teague, and by the people of the county generally, that the cause now on trial would be tried during the first week of the special term, and that the said special term was called largely with the view to afford time to try this cause.</p> <p>“ It also appeared that the Commissioners, for more than five past years, have drawn the scrolls from box No. 1, and put them in No. 2, without exhausting No. 1, and that during the past five years the scrolls in No. 2 have not been returned to No. 1; that W. N. Best was drawn as regular juror from box No. 1 for October Term, 1885, and that he is now also drawn as a juror again out of box No. .1 for this term, and the same as to one other of the present jurors, who was duly drawn before for October Term, 1887.</p> <p>“ That the plaintiff Boyer was Sheriff for four years preceding the defendant, and that he used to be present generally with the Commissioners when jurors were drawn, and sometimes read out the names on the scrolls, and sometimes a Commissioner did it, but plaintiff stated that he then had no suits in Court, or cases on docket.</p> <p>“ This plaintiff also testified that he was present a short while, casually, at September (1889) meeting of the Board of Commissioners, when they were revising the jury lists, and the chairman asked his opinion of one or two men, and he gave it; that he took no part in the proceedings, and was there only a few minutes.</p> <p>“ It further appears that at September meeting, 1889, (since passage of the act of 1889), the Board of Commissioners of Forsyth County proceeded to revise, generally, the entire jury lists and boxes, and took out many names and put in others, and that they had the tax-lists, levied in June, 1889, before them, and revised the lists from them, and that two persons, residents of Davidson County, were placed in said boxes.</p> <p>“The Court finds the above facts from the testimony offered by the plaintiff, on his motion to challenge and set aside the array. The defendant offered no evidence.</p> <p>“ In sustaining plaintiff’s challenge to the array, upon the facts hereinbefore stated, the, presiding Judge stated that he did not find an actual, intentional fraud, but it was very irregular and gross negligence .upon the part of the Board of Commissioners to permit the defendant Teague to draw this jury for this special term, called principally to try this cause, and to solely read and call out the names on the scrolls, no one else examining or verifying the same, as set forth in the evidence, and that he could not give judicial sanction to so grave an irregularity.</p> <p>“ The Court sustained the .challenge and set aside the array, to all of which the defendant, in due time, objected and excepted.”</p> <p>The following is a statement by the Court:</p> <p>“ The Court having set aside the array of jurors upon challenge of the plaintiff, and having made an order concerning the same, the defendant appeals from said order, and asks a stay of the trial until said appeal is heard.” Declined by the Court. Exception by defendant. [Error and exception No. 4]</p> <p>The Court having set aside the array, as above recited, directed that a jury be drawn in accordance with section 1732 of The Code. The plaintiff’s counsel insisted that the talesmen should be called from the by-standers, the defendant contending that the jurors should be drawn under section 1732 of The Code; but the plaintiff acquiescing, the drawing took place in the presence of the Court.</p> <p>The panel so drawn was returned, and thereupon defendant challenged the array, but not because it had been drawn under section 1732 of The Code. Testimony having been taken, his Honor sustained the challenge, and the second panel was set aside, and the plaintiff did not except.</p> <p>The Court thereupon appointed Samuel H. Smith (in accordance with the act of 1889, ch. 441, ratified March 11th) to summon jurors from the bv-standers, which was done, the jury being entirely made up from the by-standers so summoned by the said Smith; and to this the defendant objected and excepted. [Error and exception No. 5.]</p> <p>The testimony bearing upon the exceptions, from the eighth to the sixteenth, both inclusive, is sufficiently set forth in the opinion of the Court.</p> <p>The defendant’s prayer for instructions was as follows:</p> <p>1. A residence of twelve months in the State and ninety days in the county entitles a citizen to vote.</p> <p>2. If it appears that the voter whose ballot is attacked for non-residence has resided in the State twelve months, and in the county ninety days, the presumption is raised that he is entitled to register and vote, and it will take affirmative evidence to remove the presumption.</p> <p>3. The fact that a voter goes from the county in which he has voted, immediately after the election, does not raise the presumption that he has voted illegally, nor that he is a non-resident. [See charge.]</p> <p>4. The fact that a voter removes into a county, if such removal is more than ninety days before the election, and that he goes into another county, or State, immediately after the election, even if to change his residence, does not destroy the presumption that he has voted legally, provided he was a resident of the State for twelve months before the election.</p> <p>5. Temporary absence from a county, even beyond the confines of the State, for the purposes of business or pleasure, does not take from a citizen bis domicile, and the right to vote.</p> <p>6. If a vote is challenged for any cause, and the challenge is tried by the judges of election, and the decision is in his favor, it strengthens the presumption that he is a legal voter, which must be removed by evidence.</p> <p>7. The residence, or domicile, of a voter is determined by his intention.</p> <p>* 8. The fact that a citizen registers and votes is evidence of his intention as to residence. (The charge does not embody this instruction, but it should do so). [Error and exception No. 19.]</p> <p>9. If a voter has lived twelve months in the State and ninety days in the county, and does not intend to become a citizen of the county where he votes until the time of his registration, his vote, if cast, is lawful. (Overruled by Judge’s charge. See also proposed instruction No. 24). [Error and exception No. 20.]</p> <p>10. The provisions of section 2680, of the Election Law, that the “ residence of a married man shall be where his family resides,” does not necessarily imply that his family consists of his wife alone. [See charge.]</p> <p>11. If a voter’s wife abandons him, or separates from him, without his fault, it does not affect his domicile.</p> <p>12. If a voter’s wife refuses to go with him to the place where he decides to have his domicile, his right to vote in the new place of residence is not thereby affected.</p> <p>13. A voter may be lawfully placed upon the registration book of a precinct, if the registrar receives from him the certificate of removal under section 2681 of the Election Law, and administers the necessary oath to the voter in another precinct, not having the registration book then present, but putting the voter’s name therein afterward, within the rightful precinct. This instruction applies to the case of Cons. Brooks, of Abbott’s Creek precinct.</p> <p>14. The judges of election have the right, within their reasonable discretion, to permit the registration of a voter on election day, under section 2682 of the Election Law, although such registration may be for a cause other than that the voter has become of the age of twenty-one years on the day of election; and when a voter is so registered he has the right to vote.</p> <p>15. Evidence which might have been sufficient to put the voter to his explanation, if challenged at the polls, is no! sufficient to prove a vote illegal, after it has been admitted.</p> <p>16. After a vote has been admitted, something more is required to prove it illegal than to throw doubt upon it.</p> <p>17. The. declaration by the Board of Commissioners of Forsyth County of the election of M. E. Teague as Sheriff, establishes a prima facie right in his favor to the said office.</p> <p>18. If a vote has been received by the judges of election and counted in thé returns, and the relator (Boyer) questions the legality of the same, the burden of the proof is upon him to satisfy the jury, by affirmative evidence, that such vote was illegal and improperly received and counted for the defendant (Teague). [See charge.]</p> <p>19. If the registrar in Winston precinct, in giving a certificate of transfer to Samuel H. Belton, to Broadbay precinct, failed to enter the fact in, and erase his name from, the registration book of Winston precinct, such failure on the part of said registrar does not disqualify the voter thus transferred from voting in Broadbay precinct.</p> <p>[Note by the Judge. — Admitted and agreed in argument that this be not deducted from Teague.]</p> <p>20. If the registrar of Winston precinct, through mistake, in the certificate of .transfer of Sam. H. Belton, wrote the name “S. H. Belden,” instead of the correct one, this would not disqualify the said Belton as a voter in Broadbay precinct.</p> <p>[Note by the Judge. — The Court did not charge on this, as during the argument it was agreed by counsel, before the jury, that it be counted for Teague and not deducted from the Teague vote.] [See charge.]</p> <p>21. If the jury believe, from the evidence, that the registrar of Winston precinct, by mistake, wrote into his registration book the name of “ Boldin ” Brooks instead of “ Golden ” Brooks, and that the said “Golden” Brooks was actually registered as “Boldin” Brooks, and voted at the election in controversy, it would be their duty to count his vote for the defendant. [See charge.]</p> <p>22. If Ed. Conrad, alias Ed. Jones, a registered voter in Bethania precinct, was convicted of an offence, not infamous, and sentenced by the Court to imprisonment, and escaped during the term thereof, and went at large, and while thus at large (the time for which he was sentenced having expired) cast his vote for M. E. Teague for Sheriff, being otherwise qualified to vote, the ballot thus given is not illegal. (See Judge’s charge.) It is assigned for error that the charge so modifies the instruction prayed for as to destroy its rightful effect, and is misleading. There is no evidence to sustain the assumptions of the charge. If so, it should be rehearsed to the jury. [Error and exception No. 21.]</p> <p>23. The defendant contends, and asks the Court to charge the jury, that there is not sufficient evidence to sustain the allegations and contentions of the plaintiff, that the votes of the following persons should be thrown out and not counted for the defendant, namely :</p> <p>Tom Hanes, Frank Fowler, Thomas Lee, Paul Harris, Ches. Howell, John Hill, F. E. Setzer, George Jamieson, Wallace Moore, William (or Jack:) Foy, George Foy, H. L. Young, Ed. Davis, James Hansberry, Charles Yohely, Creed Hairston, James Brown, Peter Foy, Bob Moore, William Holmes.</p> <p>[See Judge’s charge.] The Court says it is admitted by the plaintiff that he has not offered evidence sufficient to show the illegality of the votes of the persons above designated by small capitals, nor for whom they voted.</p> <p>In the charge, in the italicised part, the Judge refuses to charge the jury in accordance with the prayer for the instruction No. 23, so far as the names above italicised are concerned ; and this the defendant assigns for error, in connection with the refusal of the Judge to allow the “ issues” proposed by the defendant. [Error and exception No. 22.] [See charge, where the issues proposed by defendant, and the ruling of his Honor, are fully set out.]</p> <p>24. The question of residence being controlled by the intention of the voter, and William Belies, a witness for plaintiff, having sworn that he had decided to make Old Town his home at the time he registered and voted, and that he had been living in Old Town for a year or more before then, continuously, and that at the time he voted, he considered Old Town his place of residence, he is a lawful voter, and should be counted for Teague. [See instruction 9.] This is identical with it; and, being overruled, is likewise assigned as error. [Error and exception No. 23.] (See charge.)</p> <p>25. That registration is an essential prerequisite of suffrage, and when the registration of a voter is made by the lawful officer,, such registration furnishes prima facie evidence of the right to vote. (See charge.)</p> <p>26. John Below having, testified that he was less than twenty-one years of age when he voted, and that he voted for the relator, Boyer, and there being no evidence to the contrary, the said vote must be lost to Boyer. (See charge.)</p> <p>27. It appears from the evidence that Lorenzo Wise was registered in Salem, and that he there voted for Teague. His name was also in the registration book of Winston, followed by the word “ removed.” The presumption is that the said word “ removed ” was written by the authorized officer, and the record must be taken as true, unless proof is made by plaintiff' that such word was written therein fraudulently ; and the vote in the Salem precinct must be counted for Teague. (See charge.)</p> <p>[The defendant assigns for error that part of the charge evidently relating to this instruction. The words of the charge are calculated to mislead the jury.] (Error and exception No. 24.)</p> <p>28. It appears from the evidence that Henry Goings voted for Boyer in Winston, and that his residence was beyond the limits of that precinct when the vote was cast. If the testimony is believed by the jury, they should throw out the said vote and not count it for Boyer. [See charge.] [Error and exception No. 25.]</p> <p>29. There is no evidence for whom the following persons voted, and therefore their votes should not be lost to Teague, namely: John Hill. Ed. Davis, Wallace Moore, William (or Jack) Foy, George Jamieson, and Tom Hanes.</p> <p>[See charge. The notes under the proposed instruction, No. 23, apply to this, No. 29. Error is assigned for the same cause.] [Error and exception No. 26.]</p> <p>30. There is no evidence as to the non residence of the following persons and, therefore, their votes should not be lost to Teague, namely : F. E. Seitzer, Ches. Howell, Thomas Lee, and Paul Harris.</p> <p>[See charge. The notes to instructions 23 and 29 apply to No. 30, so far as the name Thomas Lee is concerned. Error is assigned for the same cause.] [Error and exception No. 27.]</p> <p>31. The proof being that W. W. Self and John Bullen had not resided in the county ninety days before they voted for Boyer, the jury, if they believed the evidence, should throw out said votes and not count the same for Boyer.</p> <p>32. It appearing, without contradiction, from the testimony of Clayton Snider, that he removed from Abbott’s Creek to Kernersville, without any certificate of removal, and voted for Boyer in the latter precinct, the jury, if they believe the testimony, should throw out said vote and not count the same for Boyer.</p> <p>[Note by the Judge — Admitted in the argument that this vote is illegal, and should be deducted from Boyer.]</p> <p>The foregoing proposed instructions were signed by defendant’s attorneys and filed with the Clerk of the Court.</p> <p>Next comes the written charge of his Honor, as read to the jury.</p> <p>Before reading the written charge, the Court said to the jury that while something had been said by witnesses and attorneys about Democrats and Republicans, as indicating the political parties to which the plaintiff and defendant belonged, that the jury should be careful not to allow any such expression, or consideration, of this sort to influence them in the least; that they must guard against the influence of such expressions and decide the case solely upon the testimony, and nothing else.</p> <p>THE CHARGE.</p> <p>This is a civil action in the nature of a quo warranto, brought in the name of the people of the State by the Attorney General, upon the relation of John Boyer, against the defendant, to recover possession of and try the title to the office of Sheriff of Forsyth County. The plaintiff alleges that he was duly and legally elected to that office at November election, 1888; that he received a majority of the qualified and legal votes cast at said election. It is admitted by the plaintiff that defendant Teague, according to the return made by the judges of the various election precincts and by the legally authorized canvassing board, has an apparent majority on the face of said return of twenty-four votes.</p> <p>Here the Court read from the evidence the votes given for the relator Boyer and defendant Teague, at each precinct in the county, which was as follows :</p> <p>BOYER. Teague.</p> <p>Abbott’s Creek precinct . 40 135</p> <p>Ballevv’s Creek precinct . 92 97</p> <p>Bethania. . 173 163</p> <p>Broadbay . . 110 202</p> <p>Kernersville. . 186 178</p> <p>Lewisville.. . 135 86</p> <p>Middle Fork.. . 67 193</p> <p>Old Richmond.. . 110 96</p> <p>Old Town.. . 179 89</p> <p>Salem... . 326 267</p> <p>Salem Chapel- . 83 139</p> <p>South Fork.. . 165 160</p> <p>Vienna.. . 118 88</p> <p>Winston. . 636 556</p> <p>Total.. .2420 2444</p> <p>2420</p> <p>Teague’s majority 24</p> <p>You are instructed that the findings of the county canvassers and the returns of the judges of election are not conclusive, but that those findings and returns, together with the induction into office of the defendant by the Commissioners, established a prima- facie right to the office by the defendant, and the Court charges you that so far as the action of the Commissioners and the returns go, the induction into office of the defendant Teague was ‘prima facie legal and proper, and clearly establishes a prima fade right in behalf of the defendant, which the relator must' overthrow by testimony. [Instruction 17.]</p> <p>The relator claims that the defendant received a large number of illegal votes in the precinct of Winston and other precincts of the county, sufficient, if deducted from defendant's apparent majority, to wipe out that majority and leave a fair majority for relator Boyer. The defendant Teague replies that he denies the receiving of alleged illegal votes, or that they were illegal, and further, that relator Boyer, himself, received illegal votes, which is denied by Boyer.</p> <p>The issues submitted to you require, upon your part, the careful examination of each vote attacked by the relator Boyer, and each vote attacked by defendant Teague. By the word attacked, I mean “ alleged to be illegal."</p> <p>The burden of proof is upon the relator Boyer, to satisfy you that, after all the alleged illegal votes are deducted from the person’s column of votes for whom they were cast, that he (Boyer) received a majority of the legal and qualified votes cast for Sheriff in November, 1888. [Instruction No. 18.] The relator is not compelled to prove this beyond a reasonable doubt, but by a clear preponderance of the evidence only. The relator’s evidence must preponderate, but he is required to show nothing in this case beyond a rea-onable doubt. As before stated, the returns are only a prima facie case for defendant. You have the right, and it is your duty, to go behind those returns and examine into the actual legality of each vote concerning which evidence has been given in this cause — if a vote be illegal, to determine for whom it was actually cast. The relator has introduced evidence concerning a large number of votes which he has attacked— some sixty-five or seventy — the exact number of which the Court will not undertake to state, but leaves that to you,.as you have been taking very extensive notes, I am glad to notice, and paying great attention to the evidence.</p> <p>You should take the returns from each precinct (all are in evidence) of the county and give Boyer and Teague credit for the number of votes each received and apparent on the face of the returns. You should commence a careful examination of the testimony in respect to the illegal votes cast in each precinct. If you are satisfied that a person voted for Teague, in a certain precinct, and that such vote was illegal, you should deduct that vote from the number.'ie-' ceived by Teague at such precinct, as appears on the returns. So if the evidence shows, by a preponderance, that a certain vote was cast for Boyer, and that it was illegal, then you should deduct that vote from the number received by Boyer, as appears on the face of the returns. So you should patiently and conscientiously' canvass and weigh the evidence as to each vote attacked by either party to this action.</p> <p>After you have gone through all the testimony and deducted from Teague or Boyer, as the case may be, each vote actually cast for either, which you may find to be illegal, you will then ascertain which of them received a majority of the remaining legal votes actually cast at last election in November, 1888. Whichever received a majority of all the legal votes cast at said election, is the person lawfully elected. If you find that Boyer received such majority, you will answer the first issue Yes and the second issue No.</p> <p>If the plaintiff has failed to satisfy you, by a clear preponderance of evidence, that he was so elected, then you should answer the first issue No and the second issue Yes; bearing always in mind that the burden of proof is on Boyer to satisfy you by a preponderance of evidence on both issues, viz., that he was, and that Teague was not, legally elected. [Instruction 18 ]</p> <p>This brings us to the consideration of the various grounds and causes whereby certain votes are claimed to be illegal.</p> <p>It is essential that relator show, by a preponderance of evidence that the alleged illegal vote was cast for Teague. If he fails, in any case, to show this, then you should not deduct the vote from the Teague column. And so it is essential for Teague to show that a vote he claims to be illegal was actually cast for Boyer, before you deduct it from Boyer’s column.</p> <p>Now as to the legality of votes:</p> <p>The fact that a man was registered in a certain precinct and was permitted by the judges to vote in said precinct, establishes a prima facie case that such vote is legal, and you must have evidence sufficient to establish, by a clear preponderance, that such vote was in fact illegal, before the prima facie right is overcome. ' [Instruction 25 ]</p> <p>What constitutes the right of suffrage? [Here the Court read from the Constitution of North Carolina, Art. 6, §§ 1 and 2, reading the whole of said sections.]</p> <p>The Legislature, under the Constitution, has also passed laws f.r the regulation of elections. [Here the Court read sections 2679, 2680, 2681 and 2682 of The Code, to the jury.] There are several causes or grounds of illegality assigned in respect to the many votes canvassed and investigated by all parties during the trial, viz.: Voters claimed to be under 21 — minors; voters claimed to be fraudulent because of double registration; voters claimed to be illegal for improper registration; voters claimed to be illegal, non-residents of the county, or State, or voting in wrong precincts.</p> <p>MINORITY VOTES.</p> <p>It is claimed upon the part of the relator that Bethel Smith, Wallace Doub, and perhaps others, voted for Teague, and were under twenty-one years of age when they voted. It is claimed by defendant that John Belo, and perhaps ■others, voted for Boyer, and were ¡under twenty-one years. 'The law requires that the voter shall be twenty-one years ■old, either before or on the day he votes. If he arrives at twenty-one on election day, he is permitted to vote. If the voter is not then twenty-one, his vote is illegal. You have heard and taken full notes of all this testimony, and it is agreed that I need not state it to you. You have a right to consider, in addition to the other evidence, the family records offered to show the age of any of the voters claimed to be under age; also to inspect said records, and see if any material alteration has been made.</p> <p>The voter John Belo testifies that he was under age on election day, and voted for Boyer. If you believe his testimony to be true, then his vote is illegal. Then it is for you to say whether he voted for Boyer or not. (Instruction 26.)</p> <p>After you have canvassed all the testimony offered in respect to the alleged minors, you wall determine whether it has been shown by a clear preponderance that anj^ of them, or all of the votes attacked by either party, were illegal on the ground of minority, and if you can ascertain from the testimony how they voted, you will deduct the votes according to the method and instructions heretofore given.</p> <p>REGISTRATION.</p> <p>It is also -claimed upon the part of the plaintiff, that Jacob Burke, Golden Brooks, and others, voted for Teague, and were not properly registered; and it is claimed by the defendant that one John Shields, R. P. Kerner, and others, voted for Boyer, and that they were not registered, or not properly registered, or were registered in two precincts, or had no certificates of transfer, and the like. As it has been agreed that I need not state all the testimony, and as you have taken, yourselves, copious notes and paid the best attention to the evidence, I will not go over all these cases attacked on this ground, but will state the law as the Court comprehends it. In addition to actual residence in State and county, the voter must register in the precinct of the county where he resides, before he can legally vote. Any vote that either the relator Boyer or the, defendant Teague has received, unless duly registered, is illegal and should not be counted, but should be deducted.</p> <p>When a voter is registered in a precinct and desires to move to another in the same county, he must procure a certificate before he can. vote in the other precinct, or lawfully register there. If he fails to get this, and registers without it, the vote is illegal, and should not be counted, but should be deducted, if the evidence satisfies you how he voted. (Error and exception No. 28.)</p> <p>If the voter procures the proper certificate and duly registers thereunder in the precinct to which he removes, then the registrar in the precinct from which he' removed must, make the proper entry on his book, and erase his name. If such registrar, however, fails to erase the name, after issuing the certificate, without any connivance or complicity of the voter, then such neglect of the registrar of the precinct issuing such certificate would not invalidate the vote, and it would be legal. (Instruction 19 ) So, also, if a voter properly and correctly gave his name to the registrar, and took the required oath, then if the registrar erroneously registered or misspelled the names, if the identity of the person be the same, that would not invalidate the vote. [Instruction 21.] But if the voter voluntarily and on purpose gave to the registrar any other than his true name, then his vote is illegal and should not be counted, but deducted, as heretofore directed. To illustrate: I will select the case of “Bolin Brooks.” It is claimed by the plaintiff that one Golden Brooks voted .for Teague and was not registered. The defendant admits that Golden Brooks’ name is not registered as Golden Brooks, but defendant says that the name “Bolin Brooks” was intended for Golden Brooks, and that they are one and the same person, and that the registrar made a mistake in registering the name, being misled by similarity of sound. If this be true, then the vote would be legal and should not be disturbed» or deducted from the Teague column. But if that is not true, and the registrar made no mistake, and Bolin Brooks is another person, or if you believe the said voter wilfully— intentionally — gave in the name Bolin Brooks, another than his own, then the vote is illegal and should be deducted from Teague, as it is admitted that Teague received such vote. [Instruction 21. If there is evidence tending to sustain the supposition of the charge, it should have been recited to the jury.] [Error and Exception No. 29.]</p> <p>Again, any registration which takes place on the day of election is invalid and illegal, unless the voter becomes of age on that day, or shows the judges of election that for any other reason he has become entitled to register — of which cause the judges of election are to judge. [Instruction 14 ] It does not appear that any new, general registration has been ordered in this county for many elections past. In becomes necessary, -where registration books are worn out, to copy them. If the registrar omits to bring forward a name on the new book, then he may bring it forward on election day, if he has the old book present; for the old book is the registration book where no new, general registration has been ordered. If, in transcribing a book a name is misspelled, or a voter misnamed, the registrar may correct it. To illustrate: It is claimed by defendant Teague that R. P. Kerner voted for Boyer, without legal registration, and offers the registration books. If that be so, then the vote is illegal. But the plaintiff claims that R. P. Kerner was registered as R. B. Kerner; that the registrar made a mistake, without the fault or complicity of the voter, in the middle letter, and that on election day he changed the letter from “B” to “P.”; that Kerner was a well-known voter, and, as he testified, had voted at Kernersville every election since the war. If this view' of the testimony be true, then the vote is legal and should not be disturbed.</p> <p>The law requires that a voter shall not only register, but that he shall register in the precinct in which he lives. Section 2676 of The Code says, that “no elector shall be entitled to register or vote in any other precinct, or township, than the one in which he is an actual and bona fide resident on the.day of election.”</p> <p>. It matters not if a man has registered and voted in but one precinct in the county, yet, unless he lives — resides— in that precinct on election day, the vote is illegal, and if, upon a careful examination of the testimony, you find any such cases, they are illegal, and if it be shown for whom they voted, you should deduct them.</p> <p>But if a voter resided on or so near the precinct, and the precinct line be so uncertain and not well known, that it was doubtful in which precinct the voter lived, and the voter honestly and in good faith, bona fide registers and votes in the precinct he in good faith alleges and believes he lives in, and has good reason to believe he is correct, and registers and votes in no other precinct, then such vote is legal, and should not be disturbed or deducted.</p> <p>To illustrate: It is in evidence and claimed by the defendant that Henry Goings registered and voted in Winston precinct, and it is claimed by defendant that Plenry Goings did not reside in said precinct, and that he voted for Boyer. Goings testified that he lived in Winston township, and that he voted for Boyer. But if, as claimed by plaintiff, Henry Goings lived in said township, or so near the line of the precinct that it is fairly doubtful in -which precinct he resides, or that the line is doubtful and may include his then residence, and acting under the honest bona fide belief that he resided in Winston precinct, Goings registered and voted in this precinct and in no other, then the vote should not be rejected, or declared illegal, but must remain undisturbed, [Instruction 28. Assigned for error.] [Error and exception No. 30.]</p> <p>Now, as to Cons. Brooks, the registrar must keep his book open from sunrise to sunset in the precinct, as required by law, and there register voters, but if, as is claimed in one of the cases, the registrar receives from the voter a certificate of removal under section 2681 of The Code, and administered the proper oath to the voter, outside of the precinct, not having the registration book with him, and when he returns to the precinct puts the name on it and registers him, it is a valid registration. [Instruction 13.]</p> <p>(The Court also read sections 2676 and 2675 of The Code.) So if a person in jail for misdemeanor (not infamous) and sentenced to imprisonment, escapes and before he is recaptured his term, or sentence, expires and he votes in his own precinct and there registers, the precinct he resided in before he was sentenced, such vote would be valid, if otherwise qualified. But if the voter was a fugitive from justice and hiding from one part of the county to another and voted and registered in the precinct he happened to be in, and not in the precinct of his residence at the time of sentence, then such vote is illegal, and should be deducted from the person’s vote for whom it was cast, if that be shown in the testimony. [Instruction 22 ]</p> <p>Bearing this instruction in mind, you will examine the testimony carefully in regard to Ed. Conrad, alias Ed. Jones, and also as to whether he voluntarily registered under a wrong name. [Error and exception No. 31.]</p> <p>If a voter had previously registered in Winston and his name appears still in said registration books, not erased, aDd he registered and voted in Salem, without any certificate having been granted, then the vote is illegal and should be deducted, if it should be shown for whom he voted. [Error and exception No. 32.] [Instruction 27.]</p> <p>But if a certificate was actually granted, and the registrar did not erase the name on the Winston books, but wrote the word “ removed,” that does not make the vote invalid. You have the right to consider the parol testimony admitted by the Court, to show by whom the words “ removed,” in pencil were written. [Instruction 27, supra.]</p> <p>You will remember this instruction in examining the case of Lorenzo Wise and others.' [See evidence.] Also Clayton Snider, who, it is admitted, voted in Kernersville, without legal registration, for Boyer.</p> <p>NON-RESIDENCE.</p> <p>The most numerous voters disclosed by the testimony, are attacked by the plaintiff, and some are attacked by the defendant, upon the ground of non-residence.</p> <p>An actual, bona fide residence in the State twelve months, and in the county ninety days, entitles a male citizen over twenty-one years, and not coming within the exceptions embraced within section 2679 of The Code, heretofore read to you, to vote. A presumption is then raised that such person has a right to register and vote, and where it is claimed that such a voter voted illegally, because of non-residence, the party attacking such vote must show it by affirmative evidence. [Instructions 1 and 2.]</p> <p>If a voter has been duly registered and his vote received by the judges of election and counted in the returns for either Boyer or Teague, as the case may be, if the legality of such vote is contested by Boyer, or by Teague, then the burden is on Boyer, or Teague, whichever attacks it, to satisfy the jury, by affirmative, preponderating testimony or evidence, that such vote was illegal, and also for whom the vote was cast.</p> <p>The fact alone that a voter goes from the county at once, after he has voted, will not rebut the above-named presumption of legality, but it is a circumstance only that may be considered, with other evidence, upon the question of residence or domicile. It is not sufficient alone. [Instruction 3.]</p> <p>The plaintiff claims that William Belies, John Blount, Willis Reed, and many others, voted for Teague and were not actual, bona fide residents of the precincts and of this county, on election day, or had not been for ninety days, of the county, or for twelve months, of the State. The same grounds of illegality are claimed by Teague, as to the votes of John Clayton, Joe Golding, E. B. Fulk, W. R. Arthur, and others who, the defendant claims, voted for Boyer. It is unnecessary for the Court to consume time in reading over to you the ñames of the large number of persons whose votes are attacked by the plaintiff, and some by the defendant, upon this ground of non-residence. You have taken down each name, and the evidence connected with it, on your tablets and memoranda, under the direction of the Court, as each case was investigated, and under the agreement of counsel of both plaintiff and defendant, the Court will not state it all over to you again.</p> <p>In determining the legality of these votes, it becomes necessary to determine what is such residence as the Constitution requires. What is meant by the words “shall have resided?” The use of this word residence is synonymous with domicile. It does not mean a temporary place of abode. It means the home of the voter, the actual, bona fide home of the voter, to which he expects and intends to return when he goes away from it, either on pleasure or business. This animus revertendi, or intention of returning, is very material. Residence or domicile is very essentially a question of intention, and entirely governed by the intent of a person’s mind. This intention is not only manifested by words and statements of the voter, but also by his acts. The acts and doings of a person are oftentimes very valuable evidence of such person’s intentions and his mental determinations; for a person may say one thing and do another. A great law-writer, endorsed by our Supreme Court, has declared that a person’s residence or domicile, is “the place where such person lives or has his home, that is, where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.”</p> <p>This law does not intend to deprive actual, bona fide citizens of North Carolina of their right to vote, because they have left the State and resided temporarily beyond its limits, with a constant purpose to return to their homes in the county of their residence, and to return to such home when their business, which calls them away, has been completed.</p> <p>This clause requiring residence was more especialty designed to meet the case of persons coming into the county, or the State, who are not allowed to vote, or exercise political rights, until they have for the said periods of time been in the State or county; and not then, unless they have, before exercising their rights, made it their actual bona fide residence or domicile for the periods prescribed by the Constitution in respect to the State and in respect to the count. [See exceptions 20, 23 and 34.]</p> <p>The test of domicile is the intent of the person — in this case, of the voters. The intent to make this county ahorne, or domicile, must concur with the acts of the person. This intent is established, not solely by the declarations of the alleged voter on the witness stand, but also by all the attendant circumstances offered in evidence.</p> <p>Temporary employment in this county, summer after summer, with a home retained elsewhere, is not a residence within the contemplation of the law, and does not confer the right to vote.</p> <p>The provisions of section 2680 of The Code determine, to a certain extent, the residence of a married man, as well as a single man. It enacts that the residence of a married man shall be where his family resides, and that .of a single man where he boards and sleeps; and where a single man boards in one ward or precinct and sleeps in another, then his residence shall be in the ward or precinct in which he sleeps, and he shall not register or vote in any other ward or precinct; and no elector or person shall be allowed to register in any ward or precinct, to which he shall have removed, for the mere purpose of being a voter therein, nor unless his residence therein is actual and bona fide.</p> <p>A man’s family may consist of his wife alone, or, if he has children, of his wife and children; or it may consist of himself and his children, and others residing with him, whom he regards as his family. If a man's wife abandons him, or separates from him without his fault, it does not affect the mail’s domicile. A man has the legal right to change his domicile, and if his wife refuses to go with him to the place where he decides to reside as his home, his right to vote in the new domicile cannot be thereby affected. [Instructions 10, 11,12.]</p> <p>It is claimed by the plaintiff that the testimony offered by him shows that very many of the voters whose cases have been investigated in this trial voted for Teague for Sheriff, and were not actual bona fide residents of this county at the time of voting.</p> <p>The plaintiff contends that the testimony shows that these voters came here from Danville, Reidsville, Leaksville, and other places and towns, for a temporary purpose — to work for a certain season during the time when tobacco is manufactured here; that they leave their families behind them, and after the season is over return to their homes; and that the evidence discloses that their bona fide homes are the places to which they return, and not this town or county. The plaintiff offers the declarations of these voters (confined by the Court to such declarations as were made by the voter at or before the time of voting). He says these declarations show that the voters themselves regarded their homes as at the places where they came from, and not in this county.</p> <p>The defendant has replied to this testimony and put on the stand many of the voters themselves, and introduced other witnesses and testimony, which the defendant contends rebuts the plaintiff’s evidence and shows that these voters regarded this county as their home, and moved here with the bona fide purpose of making it their home, or after they moved here, then determined to reside here as a home, and that when they go away, it is not to return to their homes, but only on temporary business or pleasure;</p> <p>The defendant also offers testimony which he says proves that certain voters, whose names you have, voted for Boyer, and who were non-residents of this county at the time of voting. To this testimony the plaintiff replied, undertaking, as he says, to show that these votes cast for him and attacked by defendant were legal, and that the voters were bona fide residents of this county when their votes were cast, and had been, the proper length of time, as required by law.</p> <p>Now apply the principles of law laid down to you by the Court to all this mass of testimony, and determine if any of such votes were illegal, and for whom the vote was cast. Remember always, that where a voter has registered and voted and passed the judges, and his vote deposited in the box, it makes a prima facie right to vote, and whoever attacks that vote and alleges its illegality must prove it by satisfactory testimony, and by a preponderance of evidence, and must further show for whom the vote was cast before you can deduct it. If the vote is thus shown to be illegal and for whom it was cast, you should deduct it from the votes, or column of votes, of him for whom it w’as cast.</p> <p>It is admitted by the plaintiff that he has not offered evidence sufficient to show the illegality of the following votes, or as to whom they voted, viz., Paul Harris, Ches. Howell, John Hill, F. E. Setzer, George Jamieson, Wallace Moore, William (or Jack) Foy, James Hanesberry and Peter Foy. You will, therefore, not consider those voters, whose votes were cast at last election; and you will not deduct them from either plaintiff or defendant.</p> <p>The Court at this point gave the instruction embodied in the opinion, which was the subject of the 33d exception.</p> <p>After the first argument in the cause, the Court granted a writ of certiorari, the return to which is appended.</p> <p>You will now take the case, and, after a careful examination of the testimony, and taking the law as expounded by the Court, you will write your answer to each of the two issues submitted to you by the Court.</p> <p>If you are satisfied, by a clear preponderance of the evidence, that Boyer received a majority of the legal votes cast for Sheriff at the election in 1888, you will answer the first issue Yes, and the second issue No.</p> <p>If you are not so satisfied, then you should answer the first issue No, and the second issue Yes.</p> <p>The Court has received from the defendant thirty-two prayers, or requests, for specific instructions, and the Court has charged upon all except such as were rendered unnecessary by admissions of plaintiff’s counsel, on the argument, ■and except the ninth</p> <p>The Court is requested by the defendant to charge that if a voter has lived twelve months in this State and for ninety days in this county, and does not intend to become a citizen of this county until the day he registers, his vote, if cast, is legal.</p> <p>The Court declines to so charge you, but does charge you such interpretation of the law by the defendant is unwarranted and against the express words of the Constitution. Living in the State for twelve months and in the county for ninety days is not sufficient to acquire the right to vote. The person must have entered into the State and taken it as his residence, home or domicile for twelve months before he can vote. And also, if he is a resident of this State and moves to another county, the law requires actual residence and domicile in such county for ninety days. Mere living, or being there, will not do. The voter must be there the Constitutional period of time, with the intention to make his home or residence for such period. To illustrate: If a person comes here from Virginia, where he has heretofore resided, and desires to acquire political privileges in North Carolina, and is otherwise qualified, he must have relinquished and given up his Virginia domicile and have resided in this State, in some part of it, for twelve months before he votes, and three months of this twelve, his actual residence, home or domicile, must have been in the county prior to the time he votes, or offers to vote, in such county. [Instruction 9.] [Error and exception No. 34.]</p> <p>The intention to acquire a domicile in the State and county, and the act of acquiring such domicile, must concur and exist for the Constitutional period of time before the right to vote is acquired. A man must vote where his actual home or domicile is. As Mr. Payne, in his work on elections, says: “A person cannot have a domicile for political purposes in one place, and an actual home in another place.”</p> <p>The defendant proposed the following issues:</p> <p>1. Were any illegal votes cast for Milton E. Teague, for Sheriff; if so, how many, and by whom were .they cast?</p> <p>2. Were any illegal votes cast for John Boyer, for Sheriff; if so, how many, and by whom were they cast?</p> <p>His Honor declined to submit defendant’s proposed issues. The defendant excepted. [Error and exception No. 17,]</p> <p>His Honor thereupon submitted the following issues to the jury:</p> <p>1. Was the relator John Boyer duly and legally elected Sheriff of Forsyth County, at the election held in November, 1888?</p> <p>2. Was the defendant Teagne duly and legally elected Sheriff of Forsyth County, at the election held in November, 1888 ? [The defendant maintains that these issues are insufficient and assigns the same for error.] [Error and exception, No. 18.]</p> <p>The return to writ of certiorari, ordering that the evidence in relation to the qualification of certain voters be sent up, is as follows:</p> <p>“ On receipt of the certiorari, I fixed a time and place, and notified both parties that I was informed by counsel that the only evidence desired by your Honors is such as was adduced on said trial in reference to Thomas Hanes, Frank Fowler, Thomas Lee, George Foy, N. L. Young, Ed. Davis, Creed Hairston, James Brown, Charles Yokely, Bob Moore and William Holmes. I hereby certify that the evidence admitted on the said trial as to said votes was substantially as follows: The poll books and all the registration books introduced by the plaintiff showing the names of the voters who voted at the several precincts in'Forsyth County at the election in November, 1888; said poll books showed that Thomas Hanes voted in Winston, number 1191.</p> <p>Noah Kimmel testified that he lived in Davidson County at the time of the election, and that Thomas Hanes was a young colored man who lived with his father, Solomon Hanes, near witness, in Davidson County. About Christmas, 18S7, he got into a difficulty and went to Charlotte, and on the 4th of August, 1888, witness met Thomas Hanes and carried him home in his wagon; that Hanes then lived at his father’s until about September 29th, 1888, workiDg on witness’ farm, then he left his father’s in Davidson County and went off.</p> <p>J. C. Bessent testified that at the November election he acted as challenger at Winston box for the plaintiff Boyer, and generally for the Democratic ticket, and H. R. Starbuck acted as Republican challenger. Witness kept up closely with all the voters, and challenged only for his side. Thomas Hanes, a young colored man, offered to vote early in the morning, and was challenged by witness. He was a strang man, and did not live in Winston. He returned, and was permitted to vote. Witness cannot swear that he saw every name on his ticket, nor does he know that every colored voter, with a few exceptions well known to witness (none of which exceptions mentioned by the witness are embraced in the names in this statement), got their tickets from a certain table where Teague tickets only were handed out, and from Teague’s recognized agents, and came down the line within the ropes and voted.</p> <p>Frank Johnson, witness for the defendant for other purposes, upon cross-examination stated that he handed out Teague tickets all day; that Teague had a table near the head of .the line with Teague tickets on it; that colored voters got their tickets, fell into line about three deep and passed down the ropes to the window where the voting was done. Several other witnesses,'upon cross-examination by the plaintiff, testified that they had not seen Thomas Hanes, Prank Fowler, Ed. Davis, Thomas Lee or Bob Moore in Winston since the election.</p> <p>As to Frank Fowler, poll books show that he voted in Winston, number 102.</p> <p>J. C. Bessent testified that he saw him vote for Teague; that he, Bessent, was town tax collector in Winston, and had been for many years; that he was well acquainted with the people, white and colored ; that he know nearly all the colored people in Winston; made it a special business to keep up with them in order to save taxes. He knew that Frank Fowler voted at the election for Teague. Never saw him in Winston until a few months before the election, and that he was never there before. Never gave in or paid taxes that year in Winston ; thinks he came from Virginia. The day following the election, witness saw him buy a railroad ticket to Clarksville, Va. He left that evening on the train, and has never been in Winston since.</p> <p>As to Thomas Lee, poll-books show that he voted in Winston, number 577.</p> <p>J. C. Bessent testified that he saw him vote for Teague; that he knew him; that he was a young looking negro.</p> <p>John G. Young, Registrar for Winston precinct, testified that Thomas Lee came to him to register; that he was a young looking negro, and, on account of his very youthful appearance, he examined him as to his age. Thomas Lee told witness that he was born in October, 1868; witness told him he was not twenty-one, and refused to register him. Afterwards a party unknown to witness brought him back, and stated, on oath, that he was twenty-one, and witness registered him. His appearance indicated that he was not twenty-one.</p> <p>As to George Foy, poll-books show that he voted in Winston, number 1046.</p> <p>A. Stewart testified that he knew George Foy in Rocking-ham County. Shortly before the election in 1888, witness met George Foy in Winston, and asked him where he lived. Foy said he lived in Rockingham Count} on the Webster place; that his home was with his father in said county; that he had been working in the factory; that the factory, had stopped, but that he was not going home until after the election. After the election he did go to Rockingham County.</p> <p>George Foy was-examined as a witness, and testified that he voted for Teague; that he came from Rockingham-County in the summer, to work in the factory, and always went back when the factory stopped work. On cross-examination by the defendant, witness stated: “I consider Winston my home and go to Rockingham to see my parents.”</p> <p>As to N. L. Young, the poll-books show that he voted in Winston, No. 584. Being called by plaintiff, Young stated that he came to Winston in the summer of 1887, on a visit; staid a short time and left; that he was raised in South Carolina, and came to Charlotte, N. C., in January, 1885; that he “ pastored around,” preaching in Charlotte, States-ville and other places, having no settled home; that in January, 1887, his wife died in Chester, S. C.; at Christmas, 1887, he came to Winston to live ; that he remained here, except once in 1888, when he returned to Chester, S. C., to see one of his children, who was sick; that he voted for Teague.</p> <p>Giles Bason, colored, was introduced as a witness by defendant for some other purpose, and, on cross-examination by plaintiff, stated that he had lived in Winston a long time, and was -well acquainted with the colored people in it; that N. L. Young did not come to Winston until the summer of 1888, after electioneering had commenced; that he had not seen him in Winston until about that time, when he first saw him in the church as a preacher.</p> <p>As to Ed. Davis, the poll-books show that he voted in Winston, No. 219. ■</p> <p>Given Williams, Chief of Police in Danville, Virginia, testified by deposition that he knew Ed. Davis, a colored man; that up to about the first of 1888, he resided in Dan-ville, Virginia, and was often in jail there. That between Christmas, 1887, and the Spring of 1888 (witness not being certain as to the exact da}»-), he left Danville; he returned the following fall or winter of 1888, and stated in the presence of witness that he had been over to Winston. Said deposition is sent as part of this statement. No objection was made to the reading the part of said deposition above quoted.</p> <p>Frank Johnson, upon cross examination further stated, without objection, in addition to what is set forth elsewhere, that the colored voters got to the polls as soon as they were opened, and they got their tickets from the table where the Teague tickets were distributed, and filled tbe ropes back about three deep, crossed close together, for a distance of about one hundred feet, nearly to the outside gate of the court-house square. The registration showed that Ed. Davis was registered as “ Ed. Davis, Colored.”</p> <p>The poll-book of Abbott’s Creek township showed that Charles Yokely voted, No. 100. William Clinard testified that he saw Yokely vote for Teague at the election in November, 1888. Landon Charles testified that Charles Yokely’s father lived in Davidson County; that in the Spring of 1887, Charles Yokely rented land from witness,in Forsyth County; that he came to his home to make a crop, and, while there, married in the summer of 1888. Charles Yokely and his wife moved back to Davidson County and lived with his father; that Yokely did not return to Forsyth County until the latter part of October, 1888, when he rented land for another crop.</p> <p>Randall Bodenhammer testified that in October, 1888, he rented Charles Yokely a piece of land; Yokely then lived in Davidson County; he rented from me in Forsyth County on October 2d, 1888, and moved over from Davidson between the 10th and 20th; he told me before the election that he had a great mind to register in Forsyth Count}'.</p> <p>As to Creed Hairston, the Salem poll-books show that he voted, No. 237.</p> <p>William Reynolds testified that he knew Creed Hairston; he works generally from April till November in Reynolds’ factory; he lives in Stokes County and has a house in Walnut Cove, and goes home every winter.</p> <p>Creed Hairston testified: “I live in Walnut Cove, Stokes County, and have for several years; I came from there this morning; had a house in 1888; sold it this year after my mother died; I work here in summer and board in Salem with my brother. I was raised in Stokes County, and always made that my home.” On cross-examination by defendant, be said that at the time be registered he considered Salem his home, and boarded with a relative in Salem at that time.</p> <p>As to James Brown, Dr. Kerner testified that he saw James Brown vote at Kernersville precinct for Teague. AVitness had been a practicing physician in that township for forty years; never saw James Brown in tlie precinct until he applied to vote, and has never seen him since the election, and lie challenged him on the ground of non-residence. Brown stated that he came from Virginia; that his wife was there, hut that he had had a letter to show she was dead; he went away and brought a letter postmarked Reidsville, N. C.-,'and the letter was read at the polls and contained a statement that his wife was dead and some one else in jail, and he could return home.</p> <p>Frank Davis was afterwards called by the defendant and testified that Brown had lived in Kernersville four years; that he worked on the railroad, and since the election was off in the eastern part of this State working on the railroad. On cross-examination witness was unable to state where, in Kernersville, Brown had lived during the four j ears.</p> <p>As to Bob Moore, poll-hooks showed that he voted in AVinston, No. 819.</p> <p>J. C. Bessent' testified that Bob Moore was a crippled negro; that just before the election Moore told him that he' lived in Stokes County, and paid his taxes there; he had not been seen in AVinston since the election. AVitness saw him vote for Teague.</p> <p>John G. Young testified that Bob Moore told him before the election that his home was in Stokes Countjn</p> <p>As to AVilliam Holmes, Thomas B. Roberts testified that he knew AVilliam Holmes, colored; saw him vote in Louisville township, in the election of 1888, for Teague; that in the Spring of 1888, Holmes staid a week or two in the township, but went away to work on the railroad. A week or two before the election he first moved Ins family into the township; they remained until after the election and lived half a mile from witness. Shortly after the election they all left, and witness has not seen them since. A few days before the election, witness asked Holmes if he was going to the speaking that day. Holmes said “No;” that he did not care to go, as he could not vote here; that he had to go to Salisbury, -where his home was, to vote. Witness further testified that three or four years before the election, Holmes was married in Louisville township, and moved his wife to Salisbury.</p> <p>Wherever the words “voted for Teague” are used, the meaning is, that the vote was cast for the defendant at the election in November, 1888, for Sheriff of Forsyth County.</p> <p>The above is the testimony as contended for and argued to the jury by plaintiff. The defendant denied that the witnesses had so testified. Counsel disagreeing as to the statement of the witnesses, the Court declined the defendant’s 23d prayer for instruction, so far as it relates to the voters named in this statement, and left it to the jury to say how. the matter was as per written charge. The presiding Judge declares the testimony was substantially as herein set forth.</p>

This was an indictment for assault with intent to ^commit rape on one Jessie Shines, a colored girl of about fourteen years of age, tried before MacRae, J., at Spring Term, 1889, of Halifax Superior Court.

This was an indictment for assaulting an officer and rescuing a prisoner from his custody, tried before Bynum, J.t at Fall Term, 1889, of Bertie Superior Court. One Allen had been arrested, for a criminal offence, -upon a warrant duly issued, and was brought for trial before a Justice of the Peace. Upon the warrant the Justice wrote: “ J. W. Freeman is hereby appointed special constable.

The defendant was indicted for murder and tried before Boykin, J., at November Term, 1889, of the Superior Court of Craven County, and, upon conviction and judgment, appealed to this .Court.

CRIMINAL ACTION, tried at Spring Term, 1890, of Wilson Superior Court, Armfield, J., presiding. The defendant is indicted as tenant of the prosecutor for removing part of the crop from the land in violation of the statute (The Code, § 1759). He pleaded not guilty, and on the trial testified in his own behalf as follows: “ The contract between the prosecutor and myself was for fifty acres of land, ten in corn, forty in cotton, to be cultivated by me on halves.

<p>This was a Motion made in this Court in arrest of judgment. The matters upon which the motion was based are stated in the opinion.</p> <p>The case has heretofore been fully reported in 101 N. C., 770, and 132 U. S., 131.</p>

CRIMINAL ACTION for removing crop, tried at Fall Term,. 1889, of Harnett Superior Court, Armfield, J., presiding.

<p>This was a CRIMINAL action, tried before Armfield, J., at September Term, 1889, of Wake Superior Court.</p> <p>Motion to mark Charles M. Jones prosecutor, and tax him with the costs. The Court found that the prosecution was frivolous and not required by the public interest,” and taxed Jones with the costs as prosecutor, from which he appealed.</p>

This was an appeal from an order of Bynum, J., at January Term, 1889,. of Durham Superior Court, taxing the prosecutor with the costs.

This was an indictment for a violation of an ordinance of the town of Durham, in selling fresh meat in the town and not at the market-house, tried at October Term, 1889, of the Superior Court of Durham County, before Graves, J. The jury returned a special verdict, to-wit: “The town of Durham is a municipal corporation, with power, under its charter and under the general law, to regulate its markets and prescribe at what place and in what manner, in the town, shall be sold…

<p>Homicide — Evidence—Insanity—Jury—Challenge—Judge’s Charge.</p> <p>1. Where it appeared that the prisoner did not exhaust his peremptory challenges, error in the Court in its ruling upon the competency of a juror challenged by the prisoner is not good ground for a n^w trial.</p> <p>2. The declarations and acts of one charged with an offence, after its commission — not of the res gestee — are not competent evidence for him.</p> <p>3. Where the testimony showed that, after the commission of the offence, and pending the trial, the prisoner was committed to the asylum for the insane upon a verdict that he was incompetent to plead, but was afterwards put upon trial and plead “not guilty,” and there was some evidence that the insanity was feigned: Held not to be error to permit the State, upon cross-examination, to ask him “ why he played off crazy.”</p> <p>4. Evidence of the condition of a pistol (with which it is alleged the homicide was committed) on the morning after, was competent.</p> <p>5. Where a party charged with the commission of a crime has been committed to the asylum for the insane because of insanity supervening after the offence and existing at the time he was called upon to plead, the Court does not lose jurisdiction by reason of his commitment, but it may, without any discharge or other formal action on the part of the asylum authorities, cause him, from time to time, to be brought before the Court for examination, and. whenever it is ascertained that he is competent to plead, may put him upon trial.</p> <p>6. The opinion of the superintendent of the asylum as to the mental condition of the prisoner while under his charge is competent evidence upon the question whether such insanity was feigned.</p> <p>7. Where no instruction is asked to “state, in a plain and correct manner, the evidence given in the case, and declare and explain the law arising thereon,” the failure of the Court to comply with the statute in that particular will not be sufficient ground for a new trial, especially where the ‘ ‘ case on appeal ” shows that the charge of the Court presented the case in the most favorable light for the defendant.</p>

<p>A bdudion — Evidence— Witness.</p> <p>1. Fraud or force are not essential elements of the crime of abduction under the laws of this State.</p> <p>2. The offence is sufficiently described by the word “abduct,” and may be committed by violence, fraud or persuasion.</p> <p>3. A statement made voluntarily by a person, against whom no charge is pending, to the Solicitor in reference to the commission of an offence by another, may be received in evidence against the author, who is afterwards indicted for the same transaction.</p> <p>4. Evidence of the declarations of the father of the abducted child, showing his lack of consent to its carrying away, is competent against one charged with the abduction.</p>

This was an appeal by the State from a judgment'of Armfield, J., at January Term, 1890, of Granville Superior Court, sustaining a demurrer to an indictment.

This was an appeal from the Mayor of the town of Beaufort, tried before Bynum, J., at Fall Term, 1889, of Carteret Superior Court. The defendant was an itinerant dentist, and was. indicted for practicing his profession without a license.

<p>Indictment — Negative Averments — Landlord and Tenant — Receivers — Evidence.</p> <p>1. The statute (The Code, § 1759) making the removal of a crop without notice and before discharging liens a misdemeanor, extends to and protects receivers charged with the management of lands.</p> <p>2. “Where such receiver made a lease of turpentine trees, the tenant was estopped to deny his authority to make the lease; but should proof of his authority be required, the highest evidence of it was the order of the Court making the appointment.</p> <p>3. Where an indictment for removing a crop alleged that defendant did ‘‘rent from B.”, and subsequently, that he did remove the crop without satisfying all liens held by said B.”: Held, that this, in effect, sufficiently charged the relation of landlord and tenant, and that the “ liens held by the lessor ” were unpaid at the time of the alleged unlawful removal. 4. In an indictment for removing a crop, it is not necessary to negative the fact that, by agreement between the parties, it was stipulated that the crops should not be subjected to the statutory liens.</p>

<p>Indictment for Murder, tried before Gilmer, J., and a jury, at May Term, 1889, of RobesoN Superior Court.</p>

<p>Appeal from a Justice of the Peace, tried at Spring Term, 1890, of Moore Superior Court, before Bynum,, J.</p> <p>The-defendant was held to answer criminally before a Justice of the Peace for having failed to do service on the public road. The affidavit and the State warrant founded upon it, taken together, charge that the overseer of the road mentioned summoned the defendant “for more than three days before the 18th day of September, 1889, to appear and work the ICeyser public road on the 18th day of September, 1889, at 8 o’clock, a. M., and bring a shovel, and that the defendant unlawfully and wilfully failed to come himself or send a hand, contrary to,” etc. Upon the plea of not guilty, there was a verdict of guilty. The defendant moved in arrest of judgment upon the ground that the warrant failed to charge sufficiently that he “ was assigned to said road and was liable to work on said road.” The Court denied the motion and gave judgment against the defendant, who appealed.</p>

This was an ikdictmext for murder, tried at Fall Term, 1884, of Rici-ijioND Superior Court, before Shepherd, J. The prisoner (and one Amy McNair, who was acquitted,) was indicted for the murder of one Charles McNair. The testimony was as follows: Willis Leach, for the State, testified: “ Charles McNair was missing on a Friday night in October, 1884. On Friday evening I was going .by his house. I noticed that everything was very still. John Brackville came to the door.

Indictment for Bigamy, tried at January Term, 1890, of CUMBERLAND Superior Court, Bynum,, J., presiding. There was a verdict of guilty, and from the judgment pronounced thereon the defendant appealed.

Indictmest for assault and battery with a deadly weapon upon Lucy Alexander, tried before Merrimon, J., at November Term, 1889, of the Superior Court of Rowan County. There was a verdict of “guilty,” and the Court sentenced the defendant to imprisonment for twelve months in the county jail, and to pay a fine of $500 and the costs. Defendant excepted to the sentence upon the ground that the punishment was cruel, excessive and unusual in such cases, and appealed.

This ACTION was begun before the Mayor of Statesville, and, on appeal, was tried at Spring Term, 1890, of the Superior Court of Iredell County, Shipp, J., presiding.

This was an indictment for an assault with intent to commit a rape, tried at Spring Term, 1890, of Rowan Superior Court, Shipp, J., presiding. The defendant was found guilty, and appealed from the judgment. The facts are stated in the opinion.

This was an INDICTMENT charging both the defendants with an assault with a deadly weapon, to-wit, a pistol, tried at the Spring Term, 1890, of the Superior Court of Caldwell County, before Bynum, J. The defendant Sigman was, at the time when the assault was alleged to have been committed, town constable of the town of Lenoir, and arrested the prosecutor, Robert Tuttle, on a lawful warrant, issued by the Mayor of said town, and charging the prosecutor with having committed an…

This was an ikdictment for the larceny of a sheep, tried at Spring Term, 1890, of Watauga Superior Court, before Bynum, J. The only exception taken in the case was to the charge of the Court as to the sufficiency of the-evidence as to the asportation. The evidence as to this point was by one Alex.

<p>Ge) i eral Verdict — -Nuiswi ice — Indictm ent.</p> <p>1. When a ribald song, containing the stanza charged in the indictment, is sung in a loud and boisterous manner on the public street, in the presence of divers persons then and there present, and such” singing continues for the space of ten minutes, this is a nuisance, though the special words charged may not have been repeated.</p> <p>2. When there is a general verdict of guilty on an indictment containing several counts, and only one sentence is imposed, if some of the counts are defective the judgment will be supported by the good • count: and, in like manner, if the verdict as to any of the counts is subject to objection for admission of improper testimony or erroneous instruction, the sentence will be supported by the verdict on the other counts, unless the error was such as might or could have affected the verdict on them. State v. MoCanless, 9 Ired., 375, overruled.</p> <p>3. A defendant has the i ight to require a separate verdict to be rendered on each count, as he has the right to require the jury to be polled; but this is a privilege, and there is not error unless the defendant asks for a separate verdict, or that the jury be polled, and is refused. He waives the right to insist on them if not asked for in apt time.</p> <p>Avery, J., and Shepherd, J., dissenting.</p>

<p>Statute, Construction of — Indictment—Liquor Selling.</p> <p>1. The maxim eessante rations legis, eessat etipsa lex has no application in the construction of statutes.</p> <p>2. If the language of a statute is doubtful, and the intention of the Legislature is clear, the former will be construed by the latter; but where the language is plain, the Courts cannot look into the motive or purpose of the Legislature in the enactment of the law.</p> <p>3. A statute prohibited the sale of spirituous liquors within a prescribed distance of “ Eutherford ton Baptist Church, Butherford County,” and, upon the trial of an indictment for a violation thereof, the church building had, at the time of the alleged offence, been removed from the place where it stood at the time of the passage of the act: Held, that the statute did not become inoperative by reason of the removal, and that a sale of liquors within the territory prohibited was indictable.</p> <p>4. The allegation in the indictment that the sale was within “three miles of the old site of Butherfordton Baptist Church” was not such misdescription as vitiated it — the words “old site ” being sur-plusage; and the defect, if any. was cured by the verdict.</p>

The warrant charged “that W. B. Baker did, on the 31st of July and the first day of August, 1889, with force and arms, at and in the county aforesaid, refuse to work the public road, after being legally^ warned by said P. P. McClel-land, supervisor, against the peace and dignity of the State.” Upon conviction in the Court of a Justice of the Peace, the defendant appealed to the Criminal Court. In the latter Court he pleaded not guilty.

Indictment for Embezzlement, tried before Clark, J., at Fall Term, 1889, of the Superior Court of Ciieroeke County. The indictment charges that defendant “was employed in the capacity of an agent to one II.

This was a CRIMINAL action, tried before Moore, J., at the October Term, 1889, of. the Criminal Court of Buncombe County, on an appeal from a Court of a Justice of the Peace of said county.

<p>INDICTMENT for fornication and adultery, tried before Gil-mer, /., at Spring Term, 1889, of the Superior Court of Madison County.</p> <p>It was in evidence that Rinehart is a married man, and the defendant Lindsay is a single woman; that the female defendant.has a bastard child about two years old; that she now lives and has lived at the defendant Rinehart's house and on his land since before the child was born; that she now lives on the land of Rinehart, in a house built by him for her, and into which she moved soon after it was built; that Rinehart has been seen at the house in which she lives, and she has been seen at his house on different occasions.</p> <p>A witness testified that he had had a conversation with the defendant Rinehart, in which he asked witness “if he thought Mary Lindsay's child favored him” (Rinehart), and, in conversation, Rinehart told witness that he (Rinehart) “had tried as hard as any-man to get the child, and he guessed that he was its father.” Witness also testified that Rinehart told him “that, on one occasion, Mrs. Rinehart (his wife) caught the defendants in the act of adultery, and that it was all he could do to keep his wife off of Mary Lindsay.”</p> <p>These conversations were objected to as evidence against the defendant Lindsay, and the “Court held that the said conversations were evidence only against the defendant Rinehart, and that the jury could not consider the same as any evidence whatever against Mary Lindsay.”</p> <p>It was also in evidence that the defendant Rinehart kept a store, and the defendant Lindsay had been seen at the store in secret conversation; that they had been seen together at the house of her father, and they went off together in the direction of the house in which she lived. It was also in evidence that a few months before the trial she had a child, and when the officer went to execute a capias upon her, the defendant Rinehart was there and •went on her bond for her appearance at Court.</p> <p>It was also in evidence that they had been seen going about together, and on one occasion they were seen seated on a log, near the woods, on the male defendant’s land, not far from where the female defendant lived.</p> <p>His Honor was asked to instruct the jury that there was no evidence against the female defendant, and, as to-her, they must return a verdict of not guilty; and that as there was no evidence as to her, they should return a verdict of not guilty as to both defendants.</p> <p>This was refused. There was no exception to the charge as given. There was a verdict of guilty; judgment and appeal.</p>

INDICTMENT Eon larceny, tried before Moore, J., at February Term, 1890, of the Criminal Court of Buncombe County. The defendant was convicted, and appealed. The facts are sufficiently stated in the opinion.

This was an indictment for false imprisonment, tried at January Term, 1890, of the Criminal Court of Buncombe County, Moore, J., presiding.