Volume 107 — North Carolina Reports

This was a civil action, heard at Spring Term, 1890, of CraveN Superior Court, before Armfield, J. The complaint alleged that the plaintiff, a fireman, was injured by the negligence of the engineer, under whose direction and control he was placed in defendant’s service; that the engineer negligently ordered him to go out upon the engine and oil certain machinery while the engine was in swift motion; that thereafter the engineer, while the plaintiff was out on the engine,…

<p>This was a civil ACTION, begun March 25th, 1890, before a Justice of the Peace, and tried on appeal before Boykin, J., at May Term, 1890, of VaNCE Superior Court.</p> <p>The plaintiff sued to recover $21.86 as wages for work on defendant’s farm from January 1st to March 22d, 1890. The defendant denied plaintiff’s right to recover, claiming that he owed him nothing and alleging that plaintiff had hired to him for the year 1890, and left March 22d, 1890, without cause. He admitted payment to defendant of one dollar on his wages. Plaintiff admitted the hiring was for a year, but claimed that he left defendant’s employment for cause.</p> <p>Upon the trial in the Superior Court the plaintiff offered himself as a witness in his own behalf, and he testified that he contracted to work for defendant on his farm during the year 1890 for $100, and was to be allowed twelve holidays, and be furnished a house to stay in, by defendant; that if either party became dissatisfied during the year with the bargain, he was to stop work; that at the time the contract was made nothing was said about when the money should be paid; that afterward defendant told him he would pay him from time to time during the year as he had it and plaintiff might need it, and asked plaintiff if he would sue him if he could not pay it all- cash by the end of the year; that he, plaintiff, told defendant this would be satisfactory; that he would take portions of his wages whenever defendant desired to pay it; that defendant paid plaintiff one dollar on his said wages in February; that plaintiff, in March, asked defendant for some money on his wages, when defendant said he would sell some tobacco as soon as he finished sowing oats and pay plaintiff some; that the house in which defendant put plaintiff leaked very badly and wet plaintiff’s bed frequently, and that plaintiff frequently asked defendant to repair the same, or patch the roof, or allow plaintiff to do so, but defendant would not, and that on March 22d plaintiff left defendant’s employment for no other reason than that the house he was required to occupy was unfit to live in. On March 24th, when plaintiff went to defendant for a settlement, defendant told him he would not pay him if he left, but told plaintiff he could go into another house occupied by a tenant of defendant, who had rented it of defendant. This house had only one room, and the tenant had a wife who was about to be confined, and several small children. This witness declined to do.</p> <p>Upon this evidence plaintiff rested his case, and his Honor thereupon stated that he would instruct the jury that, upon the plaintiff’s own showing, he was not entitled to recover, and he did so instruct them, and, upon his instructions, the jury found the issue submitted for the defendant.</p> <p>Plaintiff excepted, and assigned the said ruling as error. Judgment for defendant and plaintiff appealed.</p>

This was a civil ACTION, tried before Connor, J., at Spring Term, 1889, of the Superior Court of Greene county. Only so much of the facts will be repeated as are necessary to a proper understanding of the points made by the counsel, and the rulings of the Court thereupon. On the 25th of December, 1880, W. J. Wooten and wife executed a deed of assignment, conveying certain real and personal property to W. A. Darden as Trustee.

<p>Petition for Partition — Motion in the Cause — Owelty of Partition-Execution to Enforce Equality.</p> <p>1. A motion in the cause for execution is the proper proceeding to subject land charged with owelty of partition to the payment thereof.</p> <p>2. Payment under execution of the charge in favor of one share does not discharge the land in the hands of the purchaser from the payment of a charge in favor of another share.</p> <p>3. The purchaser takes with notice of the liens in favor of the other shares.</p> <p>4. Land was partitioned in 1881, among several tenants in common, and one share, more valuable than the others, was charged with certain sums in their favor. In 1888, sale of the lot so charged was made under executions to discharge the liens in favor of some of the shares and not in favor of others, and the whole of the purchase-money was so paid, against the protest of the latter shareholders, who also knew of the sale. The share so sold was purchased, by one of the share-holders, in whose favor execution issued, and he made a mortgage to a third person: Held, that the shar-e-holders who received none of the proceeds of sale were entitled to have the land re-sold to discharge the liens in favor of their shares.</p> <p>5. The lien of such share-holders was prior to that of the mortgagee — he took with notice of such lien.</p>

This was a civil ACTION, tried at Spring Term, 1890, of PasquotaNK Superior Court, before Whitaker, J. A jury trial being waived, by consent, the facts were found by the Court. The action was brought by Elisha Coppersmith, administrator de bonis non of the estate of William Coppersmith, against the executrix (and her husband) and the surviving surety of the former administrator, and the executrix of a deceased surety and her husband.

This was a civil action, tried at March Term, 1890, of Greene Superior Court, before Boykin, J. This action is brought by the Board of Commissioners of the county of Greene to enforce the collection of certain alleged arrearages of taxes due that county for the years 1881 to 1886 inclusive, levied upon certain real estate specified, the property, at the time of such levy, of the defendant John Murphy, and charged against him, parts of which he has since sold to other…

This was an action to recover a balance alleged to be' due to the plaintiff for rent and advancements to one James Plardy, from whom, it is alleged, the defendants purchased and received property subject to a statutory lien to secure the payment of said rent and advances, heard, upon the report of a referee and exceptions thereto, before Womack, J., at Spring Term, 1890, of the Superior Court of Edgecombe County.

This was a civil action, tried before Womack, J., at February Term, 1890, of Bertie Superior Court, on appeal from a Justice of the Peace. The plaintiff, James W. Tufts, offered in evidence a contract, a copy of which, marked “Exhibit A,” is hereto attached and made a part of the statement of facts.

<p>This was a Motion, heard before WomacJc, J., at February Term, 1890, of Bertie Superior Court.</p> <p>The facts are stated in the opinion.</p>

This was a civil action, brought for the foreclosure of a mortgage deed executed by the defendant to the plaintiff on the feme defendant’s land, heard before Boykin, J., at Spring Term, 1890, of the Superior Court of Greene County.

This was a oivil ACTION, tried at Spring Term, 1890, of Edgecombe Superior Court, before Womach, J. The facts are sufficiently set out in the opinion of the Court.

<p>Case on Appeal— Certiorari — -Lost Papers — Incomplete Record— Laches. h</p> <p>1. When the case on appeal is signed only by the appellant’s counsel, and there is nothing to show that it was served on appellee in the time prescribed, it will not be considered in this Court.</p> <p>2. When it appears that the appellant has been guilty of laches, and there is no affidavit to negative it, the application for certiorari to the Judge to settle the case will be denied.</p> <p>3. When there is error apparent on the face of the record, the absence of the case on appeal does not, of itself, entitle the appellee to have the appeal dismissed.</p> <p>4. When a case was regularly constituted in Court, complaint and answer filed, verdict and judgment thereon regular in all respects, and the summons, complaint and answer are lost, so that copies are not sent up with the record to this Court, and there is no averment of any effort to have the papers supplied in the Court below, though seven months have elapsed since the appeal was taken, and there is no suggestion of any error which would thereby be made to appear: Held, that the appellant is not entitled to a certiorari for these papers.</p>

This was a civil action, tried upon issues raised before the Clerk, at the Fall Term, 1889, of Wilson Superior Court, before MacRae, J. The purpose of the action is to recover a fund to the use of the plaintiff, the husband of the defendant administrator’s intestate, being a balance of proceeds of personal property left in his hands, after settling the estate.

<p>Railroads — Charter—Right of-way — Statutory Proceedings for Damages — Statute of Limitations — Possession—The Code— Trespass.</p> <p>1. The defendant, a railroad corporation, entered upon the lands of the petitioner and constructed its road without adopting any of the means provided in its charter for acquiring title. No time is prescribed in the charter within which the owner is to be barred of his right of entry or compensation: Held, that the possession of the defendant being protected by its charter from any action of trespass, or other character, the plaintiff is confined to his remedy of having his damages assessed, as allowed by the charter.</p> <p>2. The three-years’ statute of limitations, The Code, §155, subdivisions 2 and 3, is no bar to such proceedings.</p> <p>3. It seems that there is no statute of limitations provided for such proceedings.</p>

This was a civil action, tried at Fall Term, 1889, of the Superior Court of Bertie County, before Bynum, J. The plaintiff alleged that the defendant agreed, in consideration of the freight paid to it by the plaintiff, to safely convey for him from Edenton to Flag Run, on the Roanoke River, certain goods of the value of $346.05; that defendant had failed to do so, and that the same were wholly lost to plaintiff.

<p>Insurance for the Benefit of Wife and Children — Assignment of Interest in an Estate — Subrogation to Rights of Creditors upon Payment of the Debts of the Estate — Heirs at Law — Constitution.</p> <p>1. One H. B. died in 1884 possessed o£ valuable real estate. J. S. B. qualified as his administrator. The decedent had $10,000 insurance on his life for the benefit of his wife and children, which the administrator collected for them as their agent, and, with their consent, as administrator, paid the same in discharge of certain judgments against the decedent, without taking any assignments of the judgments. In 1880, S. B., one of the heirs at law, and plaintiff herein, assigned his interest in his father’s estate for the benefit of one N. In 1885 suit was brought by several creditors against the said administrator and heirs at law for certain debts due by the decedent. They obtained judgment, but the widow of the decedent and heirs at law were adjudged to be creditors, and entitled to subrogation to the extent of the insurance money paid by them, and one tract of land belonging to the estate was adjudged, by consent, to be theirs for this purpose, as far as it would go. Two of the heirs at law being much indebted to the estate, were adjudged not to be entitled to such subrogation. The defendants were appointed commissioners to sell the real estate of the decedent and apply the proceeds according to this judgment. The plaintiff demanded his share of the proceeds of the land subjected to the use of the widow and heirs at law. The commissioners refused, because of his said assignment to N.: Helot, that the assignment of plaintiff’s interest in his father’s estate did not embrace the insurance money or the property allowed in part payment for its advancement.</p> <p>2. The insurance money was no part of the estate of the decedent.</p> <p>8. Such insurance for the benefit of wife and children belongs to them, and is expressly allowed by the Constitution.</p>

This was a civil action, tried at Spring Term, 1890, of Greene Superior Court, before Boykin, J. The following is a copy of the material part of the case settled on appeal: “ The plaintiff claimed to be the owner of the property in controversy, which was a crop, as landlord of the defendant, for rents due from the defendant, and for advances made by plaintiff to enable him to cultivate the land which he had rented from the plaintiff, and on which the property in controversy…

This was a motion to set aside a judgment rendered in this action at Fall Term, 1871, of the Superior Court of Pas-quotank County, “on the ground that it is irregular and void,” heard before Whitaker, J., at Spring Term, 1890, of the Superior Court of PasquotaNK County.

This was a Motion, tried at Chambers in Edenton, ChowaN County, May, 1890, before Whitaker, J. The plaintiffs, having filed their complaint, the defendant filed his demurrer to the same. The Court held that this demurrer was frivolous, and the defendant excepted, declaring his purpose to appeal to this Court.

This was a civil action,'tried at Spring Term, 1890, of CurtpiTUCK Superior Court, before Whitaker, J. This action was brought in the name of the State on relation of “The County Board of Education,” against the Board of Commissioners of the County of Currituck, the Treasurer and Sheriff of that county, to compel the defendants to pay to the relators the sum of money specified and demanded in the complaint for the purposes of the free public schools of the county named.

This was a civil ACTION, tried at February Term, 1890, of Craven Superior Court, before Womack, J. This action was brought, as stated in the case settled on appeal for this Court, “to recover of the defendant two thousand dollars on a contract made by the plaintiff with the defendant for certain machinery, described in article 2 of the complaint, and for $79.16, for the value of certain articles furnished to defendant, as alleged in article 1 of the second cause of action in…

This is a controversy, without' action, heard and determined before Armfield, J., at September Term, 1890, of the Superior Court of Halifax County, upon the following facts agreed upon and submitted: 1. In the beginning of the year 1889, one W. S. Biggs was engaged in the cultivation of the soil in said county, upon the following described land: His own land, bounded by the lands of the Pliggs tract, W. F,. Riddick and W. H. ICitchin. 2.

<p>This was a civil actioN, tried at Spring Term, 1890, of Edgecombe Superior Court, on appeal from a Justice’s Court, before Womack, J.</p> <p>There was evidence tending to show that the plaintiff leased certain lands for the year J 888 to Keel & Brother, at the stipulated rent of 4,800 pounds of lint c itton, and that during said year he advanced to them, to be used in the cultivation of the crops grown on said land, guano of the value of 1,605 pounds of lint cotton; that Keel & Brother paid plaintiff' 5,836 pounds of cotton, leaving sail due on said advance, 589 pounds of cotton; that on the 19th day of October, 1888, Peyton Keel, of Keel & Brother, delivered to the defendants five bales of cotton of the crop grown on said land during that year, and the 20th of October, 1888, one bale more of said cotton; that on the 22d of October, 1888, O. C. Farrar, of the defendant firm, applied to the plaintiff to know if the said firm could not pay the price of said cotton to the said Keel & Brother, when plaintiff consented that they might do so; that upon reflection the plaintiff addressed a letter to O. C. Farrar the following morning, notifying him that he would not waive his lien as landlord until the balance due him (589 pounds lint cotton) was paid, and recalling the permission given the day before that the money might be paid to Keel & Brother, which letter was delivered to the said Farrar on the same day it was written ; that thereafter, on the 25th of October, 1888, without having before seen either of the firm of Keel & Brother, or had any communication with them after the time the cotton was delivered by them to these defendants, these defendants paid to the said firm of Keel & Brother the price of the six bales of cotton. There was evidence on the part of the defendants tending to show that the price of the said cotton was paid by the defendants before the said letter was received.</p> <p>It was further contended on the part of the defendants that the plaintiff had no power to recall or revoke the permission given the defendants to pay the money to Keel & Brother.</p> <p>By consent of parties, His Honor reserved this question until after verdict, and submitted this issue to the jury:</p> <p>“In what sum are the defendants indebted to the plaintiff?” The jury answered for their verdict, “Fifty-one dollars and twenty-one cents.”</p> <p>His Honor, being of opinion with the defendants upon the question reserved, rendered judgment for the defendants.</p> <p>From which judgment the plaintiff appeals.</p>

<p>Real Estate — Declaring Trusts — Plaintiff and Defendant — Possession— Trustee for Another’s Benefit — Account—Evidence— Admissions.</p> <p>1. In an action for the possession of certain lands, the defendant answered, alleging that the plaintiff, pursuant to previous understanding, purchased them for defendant, but took title, to be held in his own name until he could pay the purchase-money advanced, to which payment the rents were to be applied. Plaintiff went into possession and so continued for several years: Held, (1) that the defendant was entitled to have plaintiff declared a trustee to hold the lands for his benefit, to the extent of defendant’s interest therein; (2) that the statute of limitations was no bar to defendant’s action.</p> <p>2. Conversations, before and at the time of the transaction between plaintiff and defendant, tending to show plaintiff’s knowledge of his trust, are clearly admissible as evidence.</p> <p>3. Plaintiff’s admissions to third persons, subsequent to the transaction, tending to establish the trust, are admissible as evidence.</p> <p>4. The plaintiff plead a docketed judgment, which was a valid and subsisting lien upon whatever interest defendant had in the lands: Held, that the Court erred in directing an account of this judgment and refusing to direct the piayment of the same.</p> <p>5. Discussion by Merrimon, C. J., of the evidence necessary to establish a trust.</p>

This was a civil action, heard before Whitaker, J., at the Spring Term, 1890, of the Superior Court of Ci-iowan County. The contention of the parties will be better understood with the aid of the following map referred to in the testimony. [See diagram.] The plaintiff, complaining of the defendant, says— 1.

This was a civil actioN, tried at Fall Term, 1890, of Camden Superior Court, before Connor, J. The action was brought by Plinton, assignee of Williams, on a promissory note secured by mortgage, dated 28th January, 1875, and executed by defendants Ferrebee and his wife as his surety, and on a promissory note, executed by the same parties as a renewal of the original note and for the purpose of keeping the debt alive. The other facts sufficiently appear in the opinion.

This was a civil actioN, tried before Armfield, J., at Spring Term, 1890, of the Superior Court of CravisN County. Plaintiff moved the Court for judgment on the report of 0. Marks, to whom the case had been referred at a previous term by an order in the record.

This was a civil ACTION, tried before Boykin, J., at Pall Term, 1889, of Halifax Superior Court. Only so much of the facts need be repeated as is necessary to-an understanding of the opinion of the Court. On the 7th of October, 1871, Jno.

This was a civil action, tried at the Spring Term, 1890, of Bektie Superior Court, before Armfield, J. The complaint alleges, in substance, that Calvin Godwin died in the county of Bertie in the year 1887, leaving his will, which was admitted to probate on the 9th of August of that year; that he left surviving him his wife, Fannie E., who qualified as executrix of his will; that she afterwards intermarried with David A. Watford, who afterwards died; that she afterwards…

<p>Divorce— Year’s Provision— Widow.</p> <p>When the wife commits adultery, and is not living with the husband at the time of his death, she is barred of the right to “year’s provision.” The Code, §2116.</p>

Civil actiok, tried before Whitaker, J., at Spring Term, 1890, of Pasquotakk Superior Court. A jury trial was waived, and the Judge found the following facts: W. J. Griffin and W. 0. Temple were partners, under the firm name of Griffin & Temple. On the 23d March, 1889, the said W. J. Griffin and W. 0.

This action was brought to recover compensation for ser- ■ vices by plaintiff to the testatrix of the defendant, and tried, upon an appeal from a Justice’s Court, at August Term, 1890, of the Superior Court of Guilford County, before MacRae, J., upon the following issue, to-wit: “Is the defendant indebted to the plaintiff, as alleged ?

Civil action, tried before Whitaker, J., at Spring Term, 1890,.of Chowan Superior Court.

This Was a civil action' to recover land, tried before Brown, J., and a jury, at May Term, 1890, of Cumberland Superior Court. The defendants appealed. The facts sufficiently appear in the opinion.

This was a civil ACTION, tried at the January Term, 1890, of Durham: Superior Court, by Armfield, J. The action was on an insurance policy. The defendant set up, among other things, that the amount of the loss had been settled by arbitration, and was no longer an open question.

<p>Damages — Issues—Negligence— Contributory Negligence — Practice in Submitting Issues of Damages — Instructions of the Court— Verdict.</p> <p>I- In an action against a railroad for damages, the defendant tendered the-issues: (1) Were plaintiff’s injuries caused by the negligent running of defendant’s engine? (2) Was there contributory negligence on the part of the plaintiff ? (3) What damages is the plaintiff entitled to recover? The Court declined to submit these, and substituted instead a single issue — What damages, if any, is the plaintiff entitled to recover? Held (1) to be error; (2) the question of the quantum, of damages is a mere incidental one, depending upon the real issues of fact raised by the pleadings.</p> <p>2 Where the Court below assumes the responsibility of settling the issues on trial, this Court, construing the statute, has laid down three rules: (1) Only issues of fact raised by the pleadings must be submitted. (2) The verdict, whether in response to one or many issues, must establish facts sufficient to enable the Court to proceed to judgment. (3) Of the issues raised by the pleadings, the Judge may, in his discretion, submit one or many, provided that neither of the parlies to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence through the medium of pertinent instructions on some issues passed upon.</p> <p>3. The statute {The Code, §§395, 401), requiring issues of fact raised by the pleadings to be submitted to the jury, is mandatory.</p> <p>4. The better practice is to submit an issue upon the question of contributory negligence.</p> <p>5. Discussion by Avery, J., of the practice in submitting issues as to damages.</p>

This was a civil ACTION to recover the possession of a sewing-machine, tried at the April Term, 1890, of Wayne Superior Court, by Brown, J. The plaintiff testified that he was in possession from 1886 to 1890, and that it was pawned to him by defendant’s lessees. The facts are set out in the opinion.

This was a Motion to remove the cause to the United States Circuit Court, heard by Graves, J., at the October Term, 1889, of Duehaijc Superior Court. In this action, at the appearance term, the plaintiff filed his complaint, and the following is a copy of the first paragraph thereof: “The plaintiffs, complaining of the defendant, allege — ' “ 1.

This was a Motion for the removal óf a cause to the United -'States Circuit Court, heard by, Graves, J., at the October Term, 1889, of DurhaM Superior Court. The plaintiffs are C. M. Herndon, a resident of North Carolina, and Geo. S. Louche, and W. H. Wheeler, and P. H. Glatfeller, residents of Pennsylvania. The defendant is a corporation organized and existing under the laws of Great Britain.

This w.as a civil ACTION, tried by Armfield, J., at the January Term, 1890, of Durham Superior Court. The plaintiff is holder for value of the check specified in the complaint, whereof the following is a copy: “ 508.80. Durham, N. C., Nov. 10th, 1888. The Bank of Durham, pay to S. H. Hawes or order five hundred and eight and -mr dollars. No. 1,032.

This was an action for claim and delivery, tried before Shipp, J., at September Term, 1889, of Richmond Superior Court. The plaintiffs and defendant both claimed the property in dispute under one Travis Quick, who, it is admitted, was the owner of it.

This was a civil action, tried before Armfield, J., at March Term, 1890, of Orange Superior Court. At the time of issuing the summons, the plaintiff caused an attachment to issue, and had the same levied upon the lands of defendant, in Orange County.

This was a Motion to remove a cause to the United States Circuit Court, heard upon petition, by Armfield, J., at the April Term, 1890, of Pekson Superior Court.

This was a civil ACTION, brought to foreclose two mortgages, set out in the complaint, tried before MacRae, J, at February Term, 1890, of the Superior Court of Wake County. The record, with the evidence sent therewith, is voluminous, but we reproduce only so much thereof as is necessary to a full and clear understanding of the questions presented for our consideration.

This was a civil action, tried at the Special March Term of the Superior Court of Obange County, before Armfidd, J. The plaintiff alleged in his complaint that the defendants, as tenants in common, were the owners of a certain grist and saw-mill on Eno river, which they leased to him for the term of one year, with the privilege of keeping it for five years, if he should be disposed to do so.

This is a question as to the allotment of a homestead, heard on objections filed before Bynum, J., at March Term, 1889, of the Superior… Held: as a matter of law— That the record by the Clerk nunc pro tunc did not debar defendant Gardner of his right to file exceptions; that the only inquiry in this proceeding was the actual value of the land allotted, and that in this proceeding the questions raised by defendant and Rhine could not be raised and passed upon, and as the…

This was a civil action, tried at January Term, 1890, of the Superior Court of DurhaM Count , before Armfield, J. The plaintiff gave evidence of his injury, which was shown to have been accidental and to have happened as set out in the complaint, and that his hand was amputated above the wrist in consequence of said injury.

This was a Civil action, tried before Graves, J., at Fall Term, 1889, of Person Superior Court.

<p>Witness — The Code, §590 — Evidence.</p> <p>1. The Code, §589, abolishes the common law incompetency of witnesses on account of interest (with the restrictions contained in section 590), except in the special cases provided for by sections 580 and 588.</p> <p>2. An interest in the thing in controversy does not disqualify a witness to testify as to a communication with one deceased. The disqualifying interest is an interest in the event of the action. Mull v. Martin, 85 N. C., 406, approved.</p> <p>8. Discussion by CLARK, J., of The Code, §590.</p>

<p>Civil actioN, tried before Womack, J., at Spring Term, 1890, of Guanville Superior Court.</p> <p>The case is, in substance, this:</p> <p>A judgment in the action was entered against certain of the defendants, in which they were required, by a day designated, to pay the mortgage debt specified; and it was ordered further, that if the same should not be paid on or before that day, that the defendant, administrator of core of the deceased mortgagors, as commissioner appointed for the purpose, sell the land described in the pleadings and apply the funds of the sale to the payment of the mortgage debt, the payment of the costs of the action, the allowance to himself of $20 for making sale, &c., an allowance of $85 to Ms counsel, as commissioner, and -$5 allowance to Hicks for making his report of costs, &c. The land was twice sold — the last time for $652.39.</p> <p>The appellants excepted to so much of the judgment as directs the commissioner to pay to his counsel $25 out of the fund raised by the sale of the land, and appealed to this Court.</p>

This was a civil action, tried, before Armfield, J, at February Term, 1890, of the Superior Court of Guileojrd County, in which the plaintiff sought the rescission and cancellation of a deed of trust, mentioned in the pleadings and set out as an exhibit. Defendants resisted this rescission and cancellation upon the grounds set forth in their answers.

This was a civil action, tried at Spring Term, 1890, of Granville Superior Court, before Womack, J. This action is brought by the plaintiff sole next of kin of the intestate of the defendant administrator, upon the bond of the latter and his sureties thereto.

Civil ACTION, tried before Womack, J., at March Term, 1890, of Wakren Superior Court. The defendant appealed.

This was a civil actiox, tried at Spring Term, 1890, of VaNCK Superior Court, before Boylcin, J. The county of Vance was created by, and organized under, and in pursuance of, the statute (Acts 1881, ch. 113), and, as to its territory, it is composed of detached parts of the counties of Granville, Franklin and Warren.

,at FaHTerm,1890,of McDowell Superior Court. The action was originally begun by Fannie E. Murphy against defendant for recovery of certain cross-ties.

This was a Motion for injunction, heard February 4th, 1890, at Rockingham, by Bynum, J. This action is brought by the plaintiffs in behalf of themselves and all other creditors of the defendant Lewald, to obtain judgment against him for certain debts specified in the complaint, and to have a deed of trust specified, executed by him to the defendant Nimocks, conveying to the latter all his property in trust, to be sold, and the proceeds of sale applied to the payment, of…

This was a Motion heard by Bynum, J, at the September Term, 1890, of New Hanover Superior Court. On the 5th of April, 1888, the plaintiff brought this action against two of the defendants. Held: as matter of law, and not as matter of discretion, that this was the appearance term, and ordered the pleadings to be filed as to this term. The appellant excepted, and appealed to this Court.

This was a civil ACTION for the recovery of a tract of land, tried before Boykin, J, at Fall Term, 1889, of Jones Superior Court. The plaintiff introduced a deed describing three several tracts of land from John Martin Franks to Isaac Brown, Sr., dated in 1832.

This was a civil action, tried at November Term, 1889, of Anson Superior Court, before Shipp, J. This action is brought against the defendant Atkinson as late constable of the town of Wadesboro, and the sureties to his official bond, for an alleged breach of the condition thereof, ill that he failed to collect and account for certain taxes due to the plaintiff’s relators, as he was charged and bound to do, etc. The pleadings raised certain issues of fact, which were tried by…

This is a civil ACTION to recover the possession of a certain soda and mineral apparatus, known as the “Eifer machine,” tried before Bynum, J., at September Term, 1889, of New Hakover Superior Court. The plaintiffs alleged title to the machine under a contract set out at length with the complaint, and asked judgment for the possession thereof, or for $330, its value, in case its delivery cannot be had, and for $250 damages.

This was a matter heard in this Court upon a motion to dismiss the appeal. The facts are sufficiently stated in the opinion of the Court.

This was a civil action, tried at May Term, 1890, of Cvu-berlaND Superior Court, before Broun, J. The plaintiff was ejected from defendant’s car by the conductor for refusing to pay an extra charge for neglect to buy a ticket at the station. The plaintiff testified, in reference to the manner and conduct of the conductor at the time when he was compelled to leave the train, as follows: “ I first offered twenty-five cents for a round-trip ticket. He refused.

This is an appeal by the defendant in proceedings under the Homestead Act, tried before. Broion, J, at September Term, 1890, of Cumberland Superior Court.

This was a civil action for the foreclosure of a mortgage, tried at December Term, 1889, of Cumberland Superior Court, before MacRae, J. The facts appear in the opinion.

This was an application for a mandamus to compel the Commissioners of Robeson County to grant license to retail liquor to J. T. Pool and others, plaintiffs in this action, heard, on demurrer to the answer, by Graves, J., at September Term, 1890, of RobbsoN Superior Court. Demurrer was overruled, mandamus refused, and judgment against plaintiffs for costs. Appeal by plaintiffs.

This was a civil ACTION, heard upon complaint and demurrer, before MacRae, J., at September Term, 1890, of CUMBERLAND Superior Court. The facts are sufficiently stated in the opinion of the Court.

This was a Motion in the cause, heard at Fall Term, 1890, of RobesoN Superior Court, by Graves, J. It appears that in 1867, at the May Term of the late Court of Pleas and Quarter Sessions in and for the county of Robeson, an ex parte petition was filed in that Court by John Walker and others, to obtain partition of the land in the petition specified among the petitioners according to their respective rights.

This was a civil ACTION, heard upon the facts agreed, at the Spring Term, 1890, of Wake Superior Court, before MacRae, J. It was brought to compel the defendant vendee, under a contract of purchase, to pay the purchase-money for a parcel of land, the plaintiff alleging, and defendant denying, that he could and was ready to make a good title, according to his contract.

<p>This was a civil ACTION, tried at Spring Term, 1890, of Beetle Superior Court, before Armfield, J.</p> <p>The facts sufficiently appear in the opinion.</p>

This was a civil ACTION, originally commenced before a Justice of the Peace, and tried, upon appeal, before MacRae, J., at July Term, 1890, of GraNVILLE Superior Court. The following is the case settled on appeal by appellee, and accepted by appellant: The plaintiff alleged that the defendant was indebted to him for money paid in excess of rent account, for a certain bouse in Oxford for the year 1886.

<p>Appeal by defendant from Gilmer, J., at Fall Term, 1889, of Wilkes Superior Court.</p> <p>The facts appear in the opinion.</p>

<p>This was a civil ACTION, tried before Armfield, J., at August Term, 1890, of LeNOIR Superior Court.</p> <p>The facts appear in the opinion.</p>

This was a civil ACTION, tried before Merrimon, J., at Fall Term, 1890, of Burice Superior Court. The same cause has been twice before in this Court — 102 N. C., 532, and 104 N. C., 381 — in the first of which cases the facts are fully stated. The plaintiff offered in evidence, inter alia, the note of memorandum of a contract between Mrs. M. C. Avery and Austin Collett, which is set out in the former report of this case in 102 N. C., 532. .

Appeal in a civil ACTION, tried before Womack, L, at April Term, 1890, of Granville Superior Court. The defendant, the State Board of Education, in its apportionment of the school funds in August, 1881, found it impossible to apportion to the county of Vance, which had been created by an act ratified March 5th, 1881, for want of a school census of the new county.

Civil action, tried before Gilmer, J., at March Term, 1889, of Buncombe Superior Court. The defendant asked several instructions, of which the 9th was as follows: “9.

This was a civil ACTION, tried before Boykin, J., at the Fall Term, 1889, of Craven Superior Court, upon’ demurrer to the complaint. The complaint alleges, in substance, that on 26th of February, 1889, the step-father of plaintiff’s wife, at Greenville, S. C, at whose house the wife was on a visit; delivered to the defendant telegraph company the following telegram, paying the sum charged for its transmission: “Greenville, S. C., Feb. 26th, 1889.

<p>This was a civil ACTION, tried at February Term, 1890, of Guilford Superior Court, before Armfield, J.</p> <p>It appears that Edward A. Prior & Co , before the 18th day of April, 1889, obtained a judgment in the Superior Court of the county of Guilford for $466.46 and costs against W. T. Chichester, which judgment was duly docketed on the judgment docket of that Court, and execution issued thereupon, and the same was duly returned by the Sheriff unsatisfied, because he found no property to satisfy the same, or any part thereof. Thereafter, on the day above specified, the said judgment creditors began their proceedings supplementary to the execution, and the said judgment debtor, on the 19th of April of the same month, appeared before the Clerk of said Court and was examined in respect to his property, etc., and sundry other witnesses were likewise so ■'examined. The examination of such witnesses was duly taken in writing and filed. In the course of such proceedings, the Court (the Clerk) was of opinion that $592 50, in the hands of a witness, S. Einstein, belonged to said judgment debtor, and it made an order that the said sum of money be paid into Court, and accordingly the same was so paid.</p> <p>Afterwards, on the 26th of April, 1S89, J. M. Chichester made claim to the money above mentioned. The Court thereupon appointed the present plaintiff receiver of the estate, property, rights and choses in action of the said judgment debtor.</p> <p>Afterwards, the present plaintiff, receiver, brought this action against the said judgment debtor and J. M. Chichester, to recover the said sum of money, the purpose being to try the right to the same.</p> <p>Afterwards, C. R. Chichester and G. P. Chichester, trading as Chichester Bros., were made parties defendant in the action. They made defence, and alleged that the said money belonged to them, and not to either of their co-defendants. The answers of the defendants raised issues of fact and Jaw,</p> <p>The Court submitted to the jury the following issues:</p> <p>“ Is W. T. Chichester the owner of the money paid into Court, $592.50?”</p> <p>“Who is the owner of the $592.50, if W. T. Chichester is not?”</p> <p>The jury responded to the first of these issues “Yes,” and made no response'to the second one.</p> <p>On the trial, the plaintiff offered in evidence the written examination of the said judgment creditor, the like examinations of the said S. Einstein and J. M. Chichester, taken and filed in the proceedings supplementary to execution first above mentioned. The defendants each objected to such admission, but the Court overruled their objections and allowed the said examinations to be read to the jury, and the defendants excepted.</p> <p>There was other evidence received, and objections and exceptions thereto by the defendants, but the same need not be here reported.</p> <p>Upon the verdict, the Court gave judgment for the plaintiff, and the defendants appealed.</p>

This was a controversy without action, from GraNVILLE County, submitted to MacRae, J., in the Fifth Judicial District. In 1864 Thomas J. Hicks died, having previously made his will, the material parts of which are set forth in the opinion, wherein he devised to Edward II. Hicks, with general power of appointment as to certain property, real and personal, described, and limitation over in case of failure to execute it.

<p>In this case, which was tried in the Superior Court of Halifax County, by BoyJcin, /., the parties agreed upon, and submitted to the Court for its judgment thereupon, a statement of facts, the material parts of which are as follows:</p> <p>“1. That the Sheriff of Northampton County, by virtue of sundry executions to him directed, issued from Northampton Superior Court on May 5th, 1887, and returnable to Fall Term, 1887, of said Court, upon judgments duly docketed in said Court against the defendants John R. Carstar-phen and others, partners trading as Carstarphen, Grant & Co., and in favor of P. H. Booth and others, did, on Monday, the 1st day of August, 1887, having first caused the homestead and personal property exemptions to be allotted and set apart, and after due advertisement, sell, at public auction, for cash, at the court-house in the towm of Jackson, the following lands, then in possession of and belonging to the defendant John R. Carstarphen, and situate in said county of Northampton, to-wit: That tract on which the said, &c. (describing several tracts), * * * where and when the plaintiff became the purchaser of said lands, complied with the terms of sale, and received the Sheriff’s deeds therefor, and which deeds were duly recorded August 11th, 1887.</p> <p>“2. That, on January 15th, 1884, the defendant John R. Carstarphen was much embarrassed financially and wholly insolvent, and has been ever since, his principal indebtedness being on account of the debts of Carstarphen, Grant & Co., a mercantile firm lately doing business in said county. The other members of said firm were the defendants James W. Grant and one B. D. Woodruff, both of whom were, on said day, and have been ever since, totally insolvent.</p> <p>“3. That the assets of said firm were, on said January 15th, 1884, worth $4,000, and, on which day, they were conveyed to one J. S. Grant in trust to secure the indebtedness of said firm — a debt of $5,674.74 to the defendants Vaughan & Barnes being preferred. Said trustee has paid said Vaughan & Barnes about $3,200 on their said debt, and has in hand from $600 and $800 more to apply to said debt.</p> <p>“4. That, on said January 15th, 1884, the defendant Car-starphen conveyed all of his individual property, both real and personal, subject to his real and personal property exemptions to be thereafter allotted to him, to trustees, as follows:</p> <p>“ 1. To one W. IT. Collier he conveyed, by deed of trust, all of his stock of goods and store fixtures, then lying and being in his store, near his residence, in Northampton County, and all his choses in action, to secure certain of his individual debts, among which was a debt of $1,000 due the defendants Jones, Lee & Co. The property conveyed by this deed was not sufficient to pay, in full, the debts therein secured, and there has only been $100 paid on the Jones, Lee & Co. debt.</p> <p>“ 2. To the defendant James D. Boone he conveyed, by deed of trust, all of his other individual property, both real and personal, not embraced in the aforesaid deed to W. H. Collier, to secure the páyment of the aforesaid debt of $5,674.74 to Vaughan & Barnes, and the aforesaid debt of $1,000 to Jones, Lee & Go., which deed wras duly recorded January 16th, 1884, a copy of which is herewith filed, marked exhibit ‘A,’ as a part of this case. The real property conveyed by said deed of trust is the same as that described in the first paragraph of this agreed case, being all the real estate owned by said Carstarphen. At the same time defendant Grant conveyed, by deed of similar purport, all his individual property, real and personal, preferring said Vaughan & Barnes, a' copy of which deed is also hereto attached, exhibit 'B ’</p> <p>“5. That no sale has been had by the trustee Boone of any part of the property conveyed to him as aforesaid, nor have any of the creditors secured thereby notified or requested the trustee Boone to take possession and sell any part of said property; but the said creditors were advised by their attorneys that the defendant Carstarphen had a right to postpone the sale of his real estate until the assets of the concern of Carstarphen, Grant & Co., in the hands of the trustee J. S. Grant aforesaid, were exhausted; nor has said trustee ever taken into possession, or exercised any control over any of said property conveyed to him.</p> <p>“6. That ever since the execution of said.deed of trust to said Boone, said John R. Carstarphen has been in the possession and enjoyment of all the property conveyed thereby, using and consuming the same for his own use and benefit, without hindrance or interference on the part of the trustee Boone, or any of the beneficiaries.</p> <p>“ 7. The real and personal property exemptions were never allotted and set apart to said Carstarphen until the_ day of June, 1887, when they were allotted under the executions mentioned in the first paragraph of this case.</p> <p>“8. That the judgments on which the aforesaid executions issued were obtained and docketed subsequent to the execution and recordation of the aforesaid trust deed tó said Boone; but the debts on which the aforesaid judgments were obtained were contracted several months prior thereto.</p> <p>“9. That there is still due and unpaid, the debt of Vaughan & Barnes ($5,674.74), less the amounts received by them as aforesaid from J. S. Grant, trustee, and the debt of Jones, Lee & Co. ($1,000), less the $100 paid them as aforesaid.</p> <p>“10. That the plaintiff admits, that in making the deed in trust to Boone there was no actual intent to defraud the creditors of Carstarphen, Grant & Co., but he insists that the intent with which it was made cannot change its legal effect, and that, upon its face, with the foregoing agreed facts, it is fraudulent in law, and, therefore, void as to other creditors.”</p> <p>The copy of the deed, marked exhibit “A,” mentioned above, contains, among others, the following provision:</p> <p>“Upon this special trust and confidence, however, that the said James D. Boone will hold, use and apply the same to the interest and uses following, and to no other — that is to say, if the party of the first part should fail to pay off and discharge the claims due to R. B. Peebles, Vaughan & Barnes, Jones, Lee & Co., on or before the first day of January, 1886— then it shall be lawful, and shall he the duty of the said James D. Boone (being thereunto requested by the said parties), to sell said property, or so much thereof as may be necessary, after duly advertising the same according to law, and, after discharging said claims'and all costs that may have grown out of the proceedings to sell land, to pay over the surplus to the party of the first part. And it is further covenanted and agreed by and between all the parties to these presents, that, in the meantime — that is to say, from the date hereof until the day of sale — the said party of the first part shall be entitled to live on the land, and to take, use and apply the rents, issues and profits, and every part thereof, to his own use and benefit.”</p> <p>The complaint demands judgment for an account to ascertain what amount was due the creditors secured by the deeds of trust mentioned; that the deed of trust he declared fraudulent, null and void as to the plaintiff; that plaintiff have possession of the land described in the complaint, and for general relief, &c.</p> <p>Upon the facts so submitted to the Court, it gave judgment for the defendants, and the plaintiff, having excepted, appealed.</p>

This was a civil action, heard before Boykin, J., at Chambers, in Halifax, 1890, of Superior Court, upon a case agreed. The plaintiff appealed. The material facts are set out in Booth v. Carstarphen and in the opinion of the Court.

<p>Civil action for recovery of land, tried before Memmon, J., at Fall Term, 1890, of Burke Superior Court. •</p> <p>The plaintiffs Mourning Crisp claimed, as widow, and Emily Woodward, as daughter, of one Underzine Pelot. Mourning Crisp testified that her mother was a white woman and her father a slave; that, fifteen or sixteen years before the war, she married Underzine Pelot, a slave of one Green-lea. The rest of the evidence appears sufficiently in the opinion.</p> <p>The defendants denied the marriage, and also the legitimacy of the plaintiff Emily, now married to Woodward Blue, and claimed the land as the heirs at law of Underzine.</p> <p>Upon the issue submitted as to the legitimacy of Emily, the jury found in favor of the plaintiff, and from the judgment defendants appealed.</p>

This was a special proceeding, commenced before the Clerk of the Superior Court of Wake County, against’-the defendants, heirs at law of George Fuller, deceased, to'«ell land to make assets to pay debts, and brought up, on issues of fact joined, to be tried in the Superior Court of said ¿ounty, and tried before Armfield, J., at October Term, 1889, of said Court.

. This was a civil ACTION, tried at Spring Term, 1890, of Greene Superior Court, before Boykin, J. The relator obtained judgment in the county of Greene, before a Justice of the Peace, for $148.41, with interest from the 22d day of October, 1887, and for costs ($3.90), and duly docketed the same in the office of the Clerk of the Superior Court of that county.

This was a civil ACTION to recover a share in the proceeds of sale of slaves belonging to the distributees of John Mathews, deceased, the father of the feme plaintiff, made by the defendant as commissioner appointed by the Court to sell the same for partition, tried at September Term, 1890, of Nash Superior Court, before MacRae, J. It is alleged in the complaint, and admitted in the answer, that, at the November Term, 1862, of the late Court of Pleas and Quarter Sessions of…

This was a motion of the defendant, founded on his affidavit, to set aside and annul an order for a writ of Assistance, made and rendered in this action at January Term, 1890, of WayNE Superior Court, on motion of plaintiffs, the object of defendant’s motion being the restitution of the land of which he had been deprived under said writ. The motion was heard before MacRae, J., at March Term, 1890, of same Court.

This was a controversy without action, submitted to Brown, J, at April Term, 1890, of Wayne Superior Court. The plaintiff is executor of the estate of Eli Sasser, Sr., who died in March, 1890, and the defendants are the children of said Eli Sasser by his first wife, Eliza Sasser, who died in 1877, leaving the defendants heirs at law.

This was a civil action, tried at September Term, 1890, of GraveN Superior Court, before Womaclc, J. The complaint and answer were as follows: “The plaintiffs, complaining, allege— “1. That they are the owners and entitled to the immediate possession of four bales of lint cotton, marked ‘ J. J. B.’ “2. That the defendant wrongfully withholds the possession thereof. “3. That they have demanded possession thereof of the defendant, and it has refused to deliver the same. “4.

<p>Appeal Dismissed — Printing Record — Rules 28,29 and 80.</p> <p>The necessity of the rule requiring the “case on appeal” to be printed has been often pointed out. Unless appellants observe this requirement, it will save them needless expenditure to refrain from sending up appeals which can only be dismissed at their costs.</p>

This was a civil ACTION, tried before Bynum, J., and a jury, at April Term, 1889, of Caswell Superior Court. , The plaintiff’s wife being about to be confined, and at that time in Danville, Va., her son, by her direction, delivered a telegram to agent of defendant company in Danville, Va., addressed to her husband at Milton, N. C., “Father, come at once; mother is sick,” and paid for the same.

<p>Appeal — Notice— Correcting Records — Mistake—Inadvertence of the Court.</p> <p>Where this Court inadvertently appended to its opinion the words, “and a new trial must be had in the Court below, and we so adjudge,” and, at the next term, upon its attention to this being called, correction was made without formal notice to the appellee: Held, he was not entitled, as a matter of right, to such notice, and especially when his counsel knew that a motion to correct the record on this point would he made, and the opinion itself gave him notice that the appended words were inadvertently added and not consistent therewith.</p>

This was a civil actiok, tried at May term, 1890, of Ire-dell Superior Court, before Shipp, J. The facts are set out in the opinion.

<p>This was an appeal from an order of the Superior Court of Mooke County, made at the October Term, 1890, by Graves, J.</p> <p>It appears from the record that on the 28th of September, 1885, the plaintiffs had a judgment against the defendants in the Superior Court'of the county of Moore for $1,089.83, &c., and that the same was docketed; that afterwards, on the 26th of June, 1890, they began their proceedings supplementary to the execution against the defendants, and, as to the same,, filed the affidavit of their agent, upon which is based their motion before the Court (the Clerk) for an order requiring-the defendants to answer, &c., as required by law in such, cases. The defendants insisted that the affidavit was in law insufficient, in respects specified, to warrant such order. The-Court decided that it was sufficient, and made the order demanded. The defendants excepted, and appealed to the Judge. The Court refused to allow the appeal.</p> <p>Afterwards, the defendants filed their petition to the Judge of the Court, demanding that the writ of certiorari be directed to the Clerk of the Court, commanding him to send to him the papers, judgments and orders in such proceedings before him (the Clerk), acting as and for the Court. At October Term, 1890, of said Court, the Court made its order, directing and requiring the Clerk of the Court to “send up to the next term of this Court a complete transcript of the proceedings in supplementary proceedings had before him in this cause.” The plaintiffs excepted to this order, and appealed to this Court, assigning as error—</p> <p>1. That the Court should not have granted a writ of certiorari to the defendants at this stage of the proceedings, the defendants not being entitled to appeal from a refusal of the Clerk to dismiss for want of jurisdiction, or for any other cause, and the writ, of certiorari being substitute for an appeal.</p> <p>2. The defendants were not entitled to said order upon their petition.</p>

<p>Creditor’s Bill — Homestead—Mortgagor and Mortgagee — Judgment Creditors — Junior Mortgages — New Debts — Residue After Sale — The Code — Constitution—Retrospective Laws— Laws Lmpairing the Obligations of a Contract and Vested Rights — Amendatory Acts.</p> <p>1. The homestead interest is favored by the Constitution, and a mortgagor has a right to have his homestead exonerated by applying the proceeds of the excess above it to the payment of a prior mortgage debt in preference to other liens upon the homestead or upon his other lands.</p> <p>2. No matter when the debts of the judgment creditors have been created, the debtor has a right to demand that the junior mortgages shall be satisfied out of the proceeds arising from sale of the excess above the homestead in exoneration thereof.</p> <p>3. Where a homestead is sold to satisfy a debt created before the ratification of the Constitution of 1868, one thousand dollars of the proceeds of sale, if that sum is left after paying the old debt, will be treated as the homestead.</p> <p>4. Where judgments are a lien upon a mortgagor’s homestead in the' residue left after sale, he has, as against the judgment creditors, a right to secure their ultimate payment as the Court may direct, the interest in the residue fund set apart as his homestead to be paid to him till his estate determines; or he has the option to take the present value of the homestead out of such residue, and this though it is less than one thousand dollars. The fund so taken for the present value belongs to the homesteader absolutely, and the balance left is subject to immediate division among the creditors according to priorities.</p> <p>5. The Act of 1885, amendatory of the homestead law, and repealing the clause exempting homesteads from the lien of judgments, does not impair the obligations of a contract or interfere with vested rights by being allowed to operate retrospectively, so as to include judgments upon debts contracted before it became a law and while The Gode, §501 (4), w7as in operation.</p> <p>6. So much of section 501 (4) of The Code as precedes the proviso must be considered as having been enacted with a view to the rule of construction contained in section 3766 of The Code.</p> <p>7. Everybody is presumed to contract with a view to the power of the Legislature to alter and amend laws providing remedies.</p> <p>8. The Code, § 3766, provides that when a part of the statute is amended, the new proviso is considered as having been enacted at the time of the amendment, and the Act of 1885, amendatory of The Code, is subject to this rule of construction.</p>

<p>Homestead — Present Value — Judgment Creditors — Exoneration — Constitution.</p> <p>1. The restoration of the lien of a judgment, under the Act of 1885, does not affect the judgment debtor’s right to exoneration, or his power to encumber his homestead by a conveyance executed in compliance with section 8, Art. 10, of the Constitution.</p> <p>3. Judgment creditors cannot complain of the homesteader’s election to take the present value of his homestead.</p>

This was a civil ACTION, tried át September Term, 1890, of Ashe Superior Court, before Merrimon, J. It appears that David Worth died in the county of Ashe in the month of December, 1888, leaving a last will and testament, which was duly proven, and the plaintiffs, the executors therein named, were duly sworn as such. This action is brought by these executors to obtain a construction of the said will in respects specified, against the devisees and legatees thereof.

<p>Entries and Grants — Warrants for Surveys — Rights of Purchasers — Notice—Parol Evidence — Evidence—Judge’s Charge.</p> <p>1. In an action to declare the defendants trustees for plaintiff’s benefit, as to certain lands, the “ entry” to which he had purchased from one of the defendants, he introduced in evidence a memorandum made at the time of paying part of the purchase money, signed by •this defendant and showing a balance of forty dollars due “on a certain land-warrant trade, November 28th, 1888”: Held, parol evidence of what “trade” this paper referred to, and its terms, was admissible.</p> <p>2. Entry upon lands, and obtaining a warrant for survey, confers upon the person entering no estate or interest therein, but simply the right to be preferred when the money is paid.</p> <p>8. Such “inchoate equity,” or “pre-emption right,” may be assigned by parol.</p> <p>4. Purchases of such an interest for value are affected with notice of all the facts respecting the rights of the vendor who made the entry within their knowledge, or which inquiry, after notice, would have disclosed.</p> <p>5. Where the defendants, purchasers, were expressly informed by their vendor that the plaintiff was to get the grant out of the office of the entry-taker, and knew that plaintiff had the warrant in his possession, and that, in order to obtain it, he must be paid for it: Held, that there was no error in the charge of the Court, that, if the jury believed these facts, such defendants were charged with notice of everything affecting the plaintiff’s claim which they might have discovered by inquiry.</p>

This was a Motion to vacate an order for arrest of the defendant in arrest and bail proceedings, heard by McCorMe, J., at Dobson, in Surry County, at Chambers, during the August Term, 1890, of Surry Superior Court. The plaintiffs brought their action, and at once applied for and obtained an order of arrest, under which the defendant was arrested. Afterwards, the latter moved to vacate the order of arrest.

This was a civil action, tried at October Term, 1890, of FORSYTH Superior Court, before McCorkle, J., upon the complaint and answer. The material facts in this case are the same as in Buggy Co. v. Pegram, 102 N. C., 540, and the same questions are involved.

This was a civil ACTION, heard at Spring Term, 1889, of Yancey Superior Court, before Armfield, J., on answer and demurrer. The facts are set out in the opinion.

This was a civil ACTION, tried at Fall Term, 1890, of AlleghaNY Superior Court, before McCorkle, J. This action was for partition of lands, alleged by plaintiff to be held by him and defendant as tenants in constructive possession, each entitled to one individual half interest. The defendant denied plaintiff’s title, and claimed sole seizin in himself and title under seven years’ possession, with color of title, alleging that defendant claimed under one Alex.

<p>. This was a civil ACTION, tried before Bynum, J, at May Term, 1890, of Ashe Superior Court.</p> <p>The action is brought by certain heirs at law of one John Dickson, and they allege that the defendant Wilcoxon (who married Elizabeth, a daughter of said John, and who, with an infant sister, is a defendant) having moved with his wife to the house of the said John (who lived alone), procured from him, by fraud and undue influence, a contract for the sale of certain land. In the course of the trial they abandoned the charge of fraud, and relied upon their allegation that there was a large balance due upon said contract, and asked judgment for the same.</p> <p>The defendant Wilcoxon denied the fraud, and alleged that he had paid all the purchase-money.</p> <p>The said contract is as follows:</p> <p>“Know all men by these presents that I, John Dickson, of the county of Ashe and State of North Carolina, am held and firmly bound unto W. K. Wilcoxon and his heirs, in the sum of $4,000, for the payment of which I bind myself, my heirs, executor and administrator. Signed and sealed this the 11th day of February, 1882.</p> <p>“The conditions of the above obligation are such that whereas, the above bounden John Dickson hath this day bargained and sold, and contracted to sell and convey unto W. K. Wilcoxon and his heirs and assigns, all that tract or parcel of land whereon he now lives, in the county of Ashe and State aforesaid, on Buffalo Creek, adjoining the lands of Jacob Graybeal, Mrs. A. C. Davis, James Warren, Wm. Elliott and others, for the sum of $2,300, $1,000 to be paid on or before the 1st day of April, 1882, and the said Wil-coxon is to execute his promissory note for $1,300, bearing interest.at six per cent, from the 1st day of April, 1882. And the said W. K. Wilcoxon agrees to maintain and clothe the said John Dickson in a comfortable manner during his natural life, and also is to feed and take of one hoise for the said Dickson.</p> <p>“ Now, upon complying with the above contract on the part of the said W. K. Wilcoxon, the said John Dickson shall make or cause to be made a good deed in fee to said Wil-coxon, his heirs and assigns, to the above described premises, and pay to the said W. K. Wilcoxon the sum of $138 per year, it being the sum agreed to, the interest at six per cent, on the total amount of the purchase-money per annum for the said lands, in lieu of the maintenance of the said John Dickson, then the above obligation is to be void, otherwise to remain in full force and virtue.</p> <p>“A. C. McEwen. John Dickson.”'</p> <p>“M. J. Gente,y.”</p> <p>“The above interlineations were made after signing, by consent of parties.</p> <p>“Attest: W. H. Gentry.”</p> <p>The defendant then introduced and proved the execution of this paper:</p> <p>“ In regard to the contract heretofore made between me and W. K. Wilcoxon, it is and was a part of the same that I was to pay all doctor bills for medical attention that I might need while I live, and if I fail to keep my health and strength as I have at the time the trade was made, and I become so that I require more waiting on in my old age, then AVilcoxon was and is to be paid well for the same in a final settlement of my affairs, and to retain a proper sum out of what he may owe me for the land at that time.</p> <p>his</p> <p>“JOHN X DlCKSON”</p> <p>mark</p> <p>“Witness: J. W. Todd.”</p> <p>March 80th, 1885.</p> <p>Defendant contended that the proper construction of the contract between Dickson and Wilcoxon was “ that the said John Dickson was to pay the defendant W. K. Wilcoxon the sum of $138 per annum for his maintenance and keeping his horse, and the said sum was to be deducted annually from the $1,300 from the date of the contract until the death of John Dickson, and that in addition to this the said note of $1,300 was to draw no interest.</p> <p>The Court held, and told the defendant’s counsel at this stage of the trial that he would so instruct the jury, that the proper meaning of the said instrument was, that Wilcoxon was to have the use of the land and was to pay no interest on the $1,300 for the maintenance of John Dickson and his horse, and defendants excepted.</p> <p>Defendant then introduced W. EL Gentry as a witness, who testified that he drew the contract between John Dickson and Wilcoxon. Defendant then insisted that there was a latent ambiguity in the contract, and proposed to ask the witness the following question: “Was not the $138 per annum the estimate placed by the parties upon the keeping of Dickson and his horse, and wras it not further understood that this $138 per annum was to be applied as a credit on the note of $1,300?”</p> <p>Objection by plaintiffs, upon the ground that it was a patent defect, and parol .testimony was incompetent to alter or explain. The Court so held, and construed the instrument as above stated, and sustained plaintiffs’ objections. Defend - ant excepted.</p> <p>The jury found that $1,300 of the purchase-money had been paid (the administrator of Dickson was made a party defendant, it being alleged that he was in collusion with said Wilcoxon, and had refused to sue).</p> <p>Said defendant, for a further defence, alleged that, at the time of said contract, the said Dickson had only a life-estate in said land, and that the reversion belonged to his (Wil-coxon’s) wife, who is the defendant Elizabeth. The said Elizabeth claimed the land under a deed executed to her by her father, the said John, before her marriage, and before the execution of the said contract.</p> <p>It appeared that in July, 1878; John Dickson executed a deed in fee (reserving a life-estate) to the said Elizabeth of a part of the land embraced in the said contract of sale. The said Elizabeth was then living with her said father, and -was unmarried. The jury found that there was no consideration for the deed.</p> <p>There was evidence tending to show that on the morning of her marriage in January, 1879, she verbally agreed to reconvey the said land to her father, and to redeliver the deed to him. In consequence of advice, she declined to perform this agreement, but about a month after the marriage, in pursuance of said verbal agreement, she handed the deed back to her father, and executed a reconveyance of the land. Her husband did not join in the deed, nor was her privy examination taken. Neither is it found that he consented to the redelivery of the deed, or that said recon-veyance and redelivery were made upon any consideration. It seems that at some date (Elizabeth says about two years before the reconveyance, &c.) her father had given her a tract worth $300, called the “ Dog Creek land.” This land does not appear to be embraced in the contract of sale, and is not found to be a consideration for the aforesaid agreement and conveyance.</p> <p>Elizabeth and her husband have been in possession of the whole tract since the death of John Dickson. The deed which Elizabeth had redelivered to her father was found among his papers, and was registered by her after the commencement of this suit.</p> <p>The following is the judgment, and this embodies the issues, and the findings of the jury:</p> <p>The following are the issues submitted to the jury, and their responses thereto:</p> <p>1. Did John Dickson convey to his daughter Elizabeth, before her marriage with the defendant Wilcoxon, a part of the land in dispute, without any consideration? Answer— Yes.</p> <p>2. Did the said Elizabeth, before her marriage, consent to give back and surrender the title to the land to her father? Answer — Yes.</p> <p>3. Did the said Elizabeth, after her marriage, and in pursuance of her agreement to reconvey to her father, made before her marriage, in writing, reconvey the land to her father, her husband not joining in the conveyance, and without privy examination? Answer — Yes.</p> <p>4. Did her husband, Wilcoxon, know, at the time of his purchase, that his wife had a deed to the land, and had reconveyed it to said Dickson? Answer — Yes.</p> <p>5. Is the claim of the plaintiff, as to’ the thirteen hundred dollars, barred by the statute of limitations? Answer — No.</p> <p>6. Did the said Dickson, before he conveyed the land in controversy, convey to his daughter Elizabeth the Dog Creek land without consideration, and does she still retain title up to this time? Answer — Yes.</p> <p>7. What is the value of the Dog Creek land? Answer— Three hundred dollars.</p> <p>8. What amount has the said Dickson advanced to bis other children? Answer — We don’t know.</p> <p>9. What portion of the twenty-three hundred dollars, which Wilcoxon contracted to pay for the land, has been paid by him? Answer' — -Thirteen hundred dollars.</p> <p>10. Was John Dickson indebted at the time of his death? Answer — Yes.</p> <p>(This finding was set aside without objection.)</p> <p>11. Did the plaintiffs, or any of them, demand of Warren, the administrator, to bring suit for settlement of the indebtedness of Wilcoxon before bringing this suit? Answer— Yes.</p> <p>.12. Did he refuse and decline to bring said suit? Answer— Yes.</p> <p>18. Was there collusion between Wilcoxon and Warren, administrator of Dickson, touching the collecting of the debt sued on by plaintiffs in this case? Answer — No.</p> <p>■The following judgment was rendered:</p> <p>“And it being further admitted by the parties that neither the deed to the Dog Creek land, nor that made to the defendant Elizabeth to a part of the home tract, was registered until after the bringing of this action, and it also appearing and being admitted that the said John Dickson died on the 26th day of April, 1886, it is now considered by the Court that the plaintiffs recover of the defendant Wilcoxon the sum of $1,245, of which sum $1,000 is principal, and $245 is interest, with interest on said principal sum from the first day of this term until paid.</p> <p>“And it further appearing to the Court that the deed executed by the said John Dickson to the defendant Elizabeth conveys only a part of the home tract, which said deed is registered in Book G G, page 493,' and to which reference is hereby made for greater certainty; and it also appearing that the contract between the said John Dickson and defendant Wilcoxon obliges the said Dickson and his heirs to convey the entire tract to the said Wilcoxon and his heirs, it is ordered, adjudged and decreed that the amount of said judgment, principal and interest, is a lien upon the entire tract of land embraced in both deed and contract above recited, but the Court, marshaling the said- securities according to equity and good conscience, doth decree that that part of said home place embraced in the said contract with Wil-coxon, and not embraced in the deed to the defendant Elizabeth, be first sold at the court-house door in the town of Jefferson, to the highest bidder, for cash, and if the proceeds should fail to satisfy the said debt and costs, that then so much of the residue of the home tract as may be necessary to satisfy the remainder of the debt and costs be sold.</p> <p>“It is further ordered and decreed that Thomas K. Miller, Sheriff of Ashe County, be appointed a commissioner to sell said lands according to this decree, and that he advertise the same as required by law as to other sales, and make due return to the next August term of this Court, no advertisement to be made until after expiration of thirty days. And it is further considered by the Court that as to issue No. 10, in which the jury find that said estate was indebted, there was no evidence to support the affirmation of said issue, and that the same was contrary to the instructions of the Court, and the same is set aside and ^withdrawn.</p> <p>“ It is further considered by the Court that the defendants pay the costs of this suit, to be taxed by the Clerk, and this cause is continued for the report of the said commissioner, and for further directions.”</p>

This was an action pending in the Superior Court of Rockingham County, tried before Gilmer, J., by consent of parties, at Chambers, on the 31st of December, 1889, upon exceptions filed by both sides to the report of James T. Morehead, Referee, etc. The plaintiffs only appealed from the ruling of his Honor.

<p>Waste■ — ■Treble Damages — Dower—Reversioners—Discretion of the Court — The Code.</p> <p>1. In an action brought by the reversioners for waste against the tenant in dower, the jury rendered a verdict for the plaintiffs: Held, that they were entitled to treble damages under The Code, §629, in the discretion of the Court.</p> <p>2. The Code, § 629, says the Court may give judgment for treble damages and the place wasted, and this Court will not make such discretionary power obligatory.</p>

<p>Constructive Fraud — Undue Influence — Setting Aside a Deed— Vendor — Vendee — Findings of Referee — Exceptions—Transactions with Deceased Persons — The Code — Vouchers—Receipts — Evidence.</p> <p>1. Where the Court, pursuant to a verdict of the jury, set aside a deed for constructive fraud and undue influence in procuring its execution: Held, that the land was properly charged with the supplies and advancements made to the plaintiff’s ancestor by the defendant, vendee, as a consideration for the conveyance.</p> <p>2. A plaintiff cannot, with good grace, seek redress for fraud while she, or her ancestor under whom she claims, holds the price of such fraud.</p> <p>3. A verdict that a deed was obtained by fraud and undue influence is not inconsistent with the idea that it is constructive fraud only.</p> <p>4. The finding of the referee that certain payments had been made by the defendant to the plaintiff’s ancestor, deceased, upon his own oral evidence, which was not objected to by plaintiff, will not now be disturbed by this Court.</p> <p>5. The handwriting of the person who signed the vouchers need only be proved when relied on, under section 1401 of The Code, as presumptive evidence of disbursement.</p> <p>6. Before the passage of this statute, the receipts of persons living were not strictly legal evidence to show a full administration. The statute makes them presumptive, not primary, evidence.</p> <p>7. Evidence of the statements of a deceased witness made during a trial is not inhibited, under section 590 of The Code, as transactions with deceased persons.</p> <p>8. It is true, as a general proposition, that land charged with debt is entitled to exoneration by the personal estate; but, where the aid of this principle has not been invoked by the plaintiff, but, on the ' contrary, she has asked for the sale of the land for the discharge of the lien, the decree of the Court ordering the sale will not be disturbed.</p>

<p>Action to Recover Land — Deeds—Subscribing Witness — Mortgage — Clerk’s Certificate — Probate—Transactions with Deceased Persons — Evidence—Powers of Sale — Legal Title.</p> <p>1. Where the surname of a subscribing witness to a deed was omitted in the Clerk’s certificate of proof by such witness, such deed will not be rejected in evidence when the fact of the execution and probate are not disputed.</p> <p>2. A plaintiff, in an action to recover land, who claims under a deceased mortgagor, is not competent to prove, in his own interest, payments on the mortgage note made by such mortgagor.</p> <p>3. In evidence of her chain of title, the feme plaintiff introduced a mortgage given to indemnify the mortgagors under whom she claimed against lossi by reason of their suretyship to the mortgagee in a sum of money due by note which they had endorsed. She offered to show further by her co-plaintiff, to whom the note was endorsed payable, and in their own interest, that $50 was paid on the note before judgment: Held, the maker of the note and the mortgagor being dead, such testimony should be excluded, under section. 590 of The Code, as being a transaction with deceased persons.</p> <p>4. Where it appeared from the testimony that the land in dispute was bid off at the sale under mortgage at a small price (which was not shown to have been paid), pursuant to a previous agreement between the trustees conducting the sale and the bidder, who, at the instance of one of the trustees, transferred his bid to the vendee: Held, no title passed by such sale, because the land conveyed was held as security for debt.</p> <p>5. Where the mortgagee has no power of sale granted to him, a sale made by him is not effectual to pass the legal title to the mortgagor.</p> <p>6. A plaintiff, under a vendee under such sale, must bring an action to foreclose, and cannot recover possession of the land in an action simply for that purpose.</p> <p>7. The conveyances by the mortgagees and their vendee do not pass a naked legal title, and such conveyances cannot operate as a foreclosure.</p> <p>8. "Where, in an action to recover land, the defendants show adverse possession under color of title for seven years, under known and visible lines and boundaries, continuous and successive, and next preceding the institution of this action, the plaintiffs cannot recover.</p>

This was a civil actioN, heard rypon exceptions to report of a referee to whom the same was referred, before Bynum, J., at Chambers, in Morganton, N. C., on the 28th day of March, 1890. The action was brought to have a sale of certain property assigned for the benefit of creditors, and in order thereto to have the rights of all parties settled.

This was a civil ACTION, tried at February Term, 1890, of RICHMOND Superior Court, before Bynum, J. The' complaint alleged that in August, 1875, the W. & S. Railroad Company gave their note to one J. W. Leak for the sum of $5,750, due twelve months after date, with defendant S. L. Fremont and plaintiffs Wooten & Southerland as sureties, and that on the same day the said company became indebted to R. S. Ledbetter for $2,875, with the same parties as sureties.

<p>This was a civil ACTION, tried at the April Term, 1890, of New Hanover Superior Court, by Graves, J.</p> <p>The facts are stated in the opinion.</p>

This was a Motion of defendants to reinstate an appeal, heard in the Supreme Court at the September Term, 1890. . The facts are stated in the opinion.

This is an appeal from a judgment of MacRae, J., sustaining a demurrer to an interplea filed by C. E. Cheatham, in certain proceedings supplementary to execution, rendered at the July Term, 1890, of the Superior Court of Granville County.

This was a civil ACTION, tried before Womack, J., at February Term, 1890, of Craven Superior Court, on the complaint and demurrer thereto ore terms, with motion by the defendant to dismiss the action. .Motion allowed and judgment that the action be dismissed and against plaintiff for costs, from which judgment the plaintiff appealed. The plaintiff alleged in his complaint— 1.

Proceeding in mandamus, before Shipp, J., at Fall Term, 1889, of RobesoN Superior Court, brought by plaintiff to compel the admission of bis children into a school taught in what was known as School District No. 4. J. A. McAllister, witness for plaintiff, testified that he was Superintendent of Public Instruction for the County, and that plaintiff complained to him that defendants refused to receive his children into the school.

This was a civil ACTION, brought for construction of will, tried at the May Term, 1890, of Rowan Superior Court, by Shipp, J. The testatrix of the plaintiff administrator with the will annexed, among other provisions in her will, provided as follows: “ 1. I will and bequeath to my sister Louisa Holler my red bedstead and bed clothing. “3.

This is an appeal from a judicial order of Bynum., J., refusing the demand of the defendants that the cause be removed from the Superior Court of Rowan County to the Superior Court of Anson County, made at August Term, 1890, of RowaN Superior Court. The summons was issued and duly executed, returnable to the Spring Term, 1890, of the Superior Court of Rowran County..

This was a civil ACTION, tried at the September Term, 1890, of the' Superior Court of Likcoln County, before Brown, J. The complaint shows that Henry W. Connor, late a resident of said county of Lincoln, died in said county intestate on the 15th day of January, 1866, leaving the defendant Mary L. Connor, his widow, seized and possessed of a large amount of real estate, a part of which was duly allotted and set apart to said defendant, his widow, on her dower; that the…

This was a civil action, tried before Merrimon, J., at Fall Term, 1890, of Buree Superior Court.

<p>This was a civil ACTION, tried at the Fall Term, 1890, of ALEXANDER Superior Court, before Connor, J.</p> <p>It appears that David F. Herman, his three brothers and sister, were tenants in common of the land in question, and other lands; that the same were duly partitioned among them under proper proceedings had in the Court of Pleas and Quarter Sessions in and for the county of Alexander in the latter part of the year 1861; that the land was divided into five parts; that lot No. 1 was allotted to David F. Herman, and valued at $2,700; that this lot was charged with $360 in favor of lot No. 3, which was allotted to William Herman, and also with $434 in favor of lot No. 4, which was allotted to Leander Herman; that afterwards William Herman died intestate and without issue, never having been married; that his said brothers and sister were his heirs at law, and shared equally in the charge in favor of lot No. 3, allotted to him in his life-time; that afterwards the said David F. Herman died, having first made his will (which was duly proven) in which he devised the lot No. 1, so allotted to him in his life-time, to the defendant Watts, who was his wife and surviving widow, and who afterwards intermarried with Reuben Watts, who afterwards died; that afterwards Leander Herman died intestate, never having been married, and his surviving brothers and sister, and the only daughter of his deceased brother, David F. Herman, were his heirs at law, and shared equally in the charge upon the said lot No. 1 in favor of said lot No. 4.</p> <p>This action is brought by one of the surviving brothers of the said David F. Herman, and by the surviving sister, against the defendant, who was the widow of the said David, and to whom he devised the land designated as lot No. 2. It is alleged substantially as above stated, that the charge of $360 and $134 on the last mentioned lot Nq. 1 have never been paid; that the same is now a charge upon the land, and the plaintiffs demand that their respective shares specified of such charge shall be paid by or before a day to he specified, and if not. so paid, then that the land shall be sold, &c.</p> <p>The defendant alleges and pleads that the said charge upon the land was actually and fully paid and discharged by her said first husband, David F. Herman, in his life-time. She further pleads that, more than twenty-eight years having elapsed since the plaintiffs’ alleged cause of action arose, the same is conclusively presumed to be paid, and she further pleads that more than ten years have elapsed since the final judgment and decree in the said partition proceedings, whereby the charge was established, and that the same is, therefore, presumed to be paid, &c.</p> <p>The defendant moved to dismiss this action, upon the-' ground that the plaintiffs’ remedy was by motion for a ven-ditioni exponas in the partition proceedings now in the Superior Court of the county of Alexander. The Court denied the motion, and the defendant excepted.</p> <p>The defendant, among other things, relied upon the plea of payment and the presumption of payment, &c. The Court declined to submit any issue involving the presumption of payment of the charge upon the land, &c., or to instruct the jury in that respect, and the defendant excepted.</p> <p>There was a verdict and judgment for the plaintiffs, and the defendant appealed, to this Court.</p>

<p>This was a civil action, tried at Fall Term, 1889, of Buncombe Superior Court, before Whitaker, J.</p> <p>The facts sufficiently appear in the opinion.</p>

Civil ACTION, tried on appeal from the Clerk of the Superior Court of Cumberland County, before Bynum, J., at Chambers. “This cause coming on to be heard before the Clerk, and being heard upon the motion of the defendant to dismiss the supplemental proceedings and order in the above entitled cause, and, after argument of counsel on both sides, it being made to appear to the satisfaction of the Court that there is now pending in this Court a creditor's bill in the name of…

<p>Administration — Trusts—Life-estate—Statute of Limitations— Remainder.</p> <p>An executor under a will held certain funds as trustee for A for life, and in remainder for B. &c., and lie filed a final account, showing a balance in his hands due the estate, but made no reference to the trust fund: Held, (1) that the trust did not devolve upon his administrator, and that the latter, not finding any fund designated as a trust fund, and not having recognized the trust or set apart any particular assets to meet its requirements, was not a trustee of an unclosed trust, and that A, B and 0 were, as to such administrator, creditors only, and should have presented their claims as such creditors; (2) that the remainderman, as well as the life-tenant, had a right to sue for the fund and have another trustee appointed to hold it for the purposes of the trust; that their right of action accrued within a reasonable time after the granting of letters of administration, and these having been granted prior to the 1st of JuiyV 1869, the former law as to the settlement of estates was applicable; (8) the administrator, having filed his final account in August, 1869, and paid over the balance to the distributees without taking refunding bonds, would not have been protected by the two-years’ statute of limitation prescribed in the Revised Code, but as this provision of the Revised Code requiring refunding bonds was repealed in 1868-69, and the settlement was made after such repeal and before the Act of 1870 declaring the Act of 1868-’69 prospective only, but validating all bona fide settlements made under its provisions: Held, that, as the plaintiffs never presented their claims or sued for the same until 1889, they were barred by the statute of limitations; and (4) they would also have been barred by the seven-years’ statute, which does not require refunding bonds.</p>

This was an action to try title to land aud to recover possession, tried by Bynum, J., at the February Term, 1890, of the Superior Court of RichmoND County, upon the pleadings and issues set out in the record proper. The plaintiff introduced— 1. A grant from the State to Duncan McFarland, dated 13th January, 1847, on an entry dated July 4th, 1801. 2. A deed from John McKay to J. B. Buchanan, dated September 25th, 1863. 3.

Civil action for damages, tried before MacRae, J, at March Term, 1890, of Wayne Superior Court. The issues were — • 1. Was B. F. Deans killed by the negligence of the defendant ? 2. Did he, by his own negligence, contribute to his death? 3. What damage, if any, is the plaintiff administratrix entitled to recover?

The plaintiff appealed from the judgment refusing to declare the demurrer frivolous, rendered by MacRae, J., at September Term, 1890, of the Superior Court of Grakville County. The facts are set forth in the defendant’s appeal, taken at the same time. plaintiff’s petition. The petition of Thomas D. Clement, as administrator of Amos Gooch, deceased, respectfully showeth— 1.

This was a civil action, tried at Fall Term, 1890, of Haywood Superior Court, before Philips, J., brought for the possession of an interest in a lot of land. The plaintiffs obtained and docketed a judgment in 1878 against one Love, his homestead having been laid off in 1875, and the lot in question being a part of the excess above it. In 1886 he conveyed by deed his interest therein to the defendant.

This wras a civil action, fried by Brown, J., at the Fall Term, 1890, of Gaston Superior Court. The complaint alleged that the defendant T. A. H. Wilkinson was indebted to him as cashier, and gave his promissory note, of which the following is a copy: “$800. Gastonia, N. C., Jan. 5th, 1888.

This was a civil ACTION, tried before Philips, J., for specific performance, at Fall Term, 1890, of Clay Superior Court, upon demurrer of defendant. Demurrer was sustained and plaintiffs appealed. The plaintiffs alleged— 1.

<p>This was a petition for certiorari, filed in this Court.</p> <p>The facts are stated in the opinion.</p>

This was a civil action, tried at Spring Term, 1890, of Jackson Superior Court, before Connor, J. It is alleged in substance in the complaint that five boxes of mica were shipped to the plaintiffs from the city of Boston, and that the defendant and others, common carriers, contracted with the plaintiffs to transport the same for certain compensation, etc.; and it is further alleged— “ 4.

This was a civil action to recover damages for alleged slander, tried before Brown, J., at Pall Term, 1890, of Lincoln Superior Court. The statement of case on appeal is as follows: “Upon the trial it was admitted by counsel that in the original complaint the plaintiff had complained and alleged a cause of action for words uttered by the defendant in April, 1888, to which the defendant answered and duly pleaded the statute of limitations.

This was a civil ACTION, commenced before a Justice of the Peace for the county of Ashe, and brought by appeal to the Superior Court of said county, and tried before Bynum, J., at the special June Term, 1890, of said Court. The plaintiff alleges, in substance— 1. That in 1885 the defendant and .Jonathan Osborne owned a lot of horses, and that they employed him to sell and trade said horses for them. 2.

This was a civil ACTION, tried at March Term, 1890, of BUNCOMBE Superior Court, before Connor, /., by plaintiff to recover damages for injuries sustained by him while he was in the service of the defendant railroad company as a brakeman on the freight train, occasioned by its negligence, etc. Among other things, it is alleged'in the complaint — “3.

<p>PbtitioN to rehear, filed by defendant, and heard at the September Term, 1890, of the Supreme Court. (See 104 N. C., 410.)</p>

This was a civil ACTION to recover alleged damages for ponding water back on plaintiffs' land by the erection of a mill-dam, tried before Clark, J., at January Term, 1889, of the Superior Court of Alexander County.

This was a criminal action, begun in the Municipal Court of McFarlan, in Anson County, and tried, upon appeal, before Bynum, J., at September Term, 1890, of the Superior Court of that county. The defendant is charged with a violation of an ordinance of the town of McFarlan. The defendant pleaded former acquittal.

<p>This was an appeal from Moore Superior Court, Fall Term, 1890, Graves, J., presiding.</p>

<p>Criminal Practice — Constitution—Presence of Prisoner — Right to Counsel — Escape— Waiver.</p> <p>1. In the United States the principle has ever been universally recognized that persons charged with crime had the right to be present at their trial, to be informed of the accusation against them, to confront their accusers and to have the aid of counsel. It is distinctly guaranteed in the Constitution of North Carolina, but, except in capital felonies, it may he waived.</p> <p>2. But this right extends only to that tribunal which tries the facts, and where the accused is presumed, on account of his peculiar knowledge, to be able to conduct or assist in the conduct of his defence. It does not prevail in this Court, which has jurisdiction only to review alleged errors of law on the trial below,</p> <p>3. Where a person who has been convicted of an offence appeals from the judgment, and escapes, the appellate Court may, in its discretion, proceed with the hearing of the exceptions, dismiss the appeal, or direct the cause to be continued to await the recapture of the fugitive, and any judgment it may pronounce thereon will not be invalid because of the fact that the defendant was not actually or constructively in custody, or not represented by counsel.</p> <p>4. The rule enunciated in State v. McMillan, 94 N. C., 945, has been altered by the provisions of chapters 191 and 192, Laws 1887.</p>

This was an Indictment for Murder, tried at May Term, 1889, of RobesoN Superior Court-, Gilmer, /., presiding. Only Stephen Jacobs and appellant were on trial. There was a verdict of “guilty,” and from the judgment pronounced thereon the prisoners appealed. Jacobs’ appeal was disposed of at last term (State v. Jacobs, 106 N. C., 695).

<p>This was an indictment for violation of an ordinance of the town of Lenoir, instituted by warrant of the Mayor, and tried on appeal, at the Fall Term, 1890, of the Superior Court of Caldwell County, before Merrimon, J.</p> <p>The ordinance provided that any person or persons who shall, within the limits of the town of Lenoir, be guilty of using any abusive or indecent language, cursing, swearing, or any loud or boisterous talking, hollowing, or of any other disorderly conduct, shall be arrested and fined not less than twenty-five dollars upon conviction thereof.</p> <p>It was admitted that the testimony showed that the defendant had violated the ordinance. But the defendant insisted that the ordinance upon its face was unconstitutional and could not be enforced. The jury returned a verdict of guilty. The Court pronounced judgment. The only error assigned is the refusal of the Judge to hold that the ordinance was void.</p>

CrimiNal ACTION, tried at Fall Term, 1890, of McDowell Superior Court, Merrimon, J., presiding.

<p>CRIMINAL action, tried before Meares, J., at August Term, 1890, of Mecklenburg Criminal Court.</p> <p>Appeal by defendant.</p>

Criminal action, tried at Spring Term, 1890, of Ashe Superior Court, Bynum, J., presiding. The defendant is indicted for selling spirituous liquors “ by the quart not at the place of manufacture of the said liquor and without having a license to sell by the measure aforesaid,” etc, in violation of the statute (Acts of 1887, ch., 135, § 31). He pleaded not guilty.

Indictment for Murder, tried at Fall Term, 1890, of the Superior Court of McDowell County, M&rrimon, J., presiding. There was a verdict of “guilty,” and judgment of death, from which prisoner appealed. The facts are stated in the opinion.'

This was an Indictment for Forcible Trespass, tried before McCorEe, J., at November Term, 1890, of Surry Superior Court. After evidence offered by the State showing the facts relied upon to sustain the charge, the defendant introduced himself and one Simmons, a constable, each of whom testified that a warrant of attachment had been issued by a Justice of the Peace at the instance of the defendant as agent for Royster & Strudwick.

<p>Carrying Concealed ■Weapons — Witness.</p> <p>1. Unless, in the discretion of the Court, at the close of the State’s evidence, the State is restricted to one of the transactions shown by it and tending to prove the offence charged, the Solicitor, on cross-examination of defendant’s witnesses, can bring.out any other transaction within the statute of limitations tending to prove the charge. This rule is not varied when the defendant is a witness in his own behalf. State v. Parish, 104 N. C., 679; State y. Thomas, 98 N. C., 699, cited and approved.</p> <p>2. The defendant waives his constitutional privilege not to answer questions tending to criminate when he voluntarily testifies in his own behalf.</p> <p>3. The offence is deemed and held to have been committed, if at all, in the county charged, unless the defendant pleads in abatement, under oath, and the cause is thereupon removed to another county. The Code, § 1194.</p>

This was an Indictment for Assault and Battery with a deadly weapon, tried before Moore, J., at July Term, 1890, of the Criminal Court of BuNCOMbe Couniy. The case on appeal is as follows: The trial was concluded and the case given to the jury at about 6 o’clock on Saturday evening of the first week of said Court.

<p>This was an Indictment against the defendants for Fornication and Adultery, tried at Fall Term, 1889, of Catawba Superior Court, before Shipp, J.</p> <p>The only exception taken at the time was as to the ruling of the Court on a question as to the admissibility of evidence.</p> <p>The State introduced one Yoder as a witness, who testified to facts tending to prove the guilt of the defendants.</p> <p>On the cross-examination of said witness he was asked if he had written a letter making a false charge against a young man, with a view to prevent him from obtaining a position as a school teacher. The witness said he had not written such a letter.</p> <p>Afterwards, the defendants introduced one Dr. Olapp, who testified that the general character of said witness (Yoder) was not good. After cross-éxamination by the Solicitor, the defendant proposed to ask the witness if there was not a general report that the witness Yoder had written a letter against a young man (being the letter alluded to on cross-examination of Yoder). The Solicitor objected; objection sustained, and the evidence excluded. Defendants excepted. There was a verdict of guilty. Judgment, and appeal by defendants.</p>

<p>Indictment for Assault and Battery, tried at February Term, 1890, of the Criminal Court of Mecklenburg County, before Meares, J.</p> <p>The State introduced one Severs, a Justice of the Peace, who testified that, about 8 o’clock at night, on a Saturday in July, 1890, he was informed by one Watts that the defendant was beating his wife and about to kill her, and that he and his son went out to the road and heard persons talking in a loud tone down the road. They were coming up the road in the direction of witness’ house. It was dark, and witness could not see the persons who were talking loud, but when they approached to within forty feet of him, he heard a blow given as with a stick, and a woman’s voice cried out very loud, as if in distress. In a few minutes thereafter, the defendant and his wife came along the road, and the defendant had a stick in his hand and was cursing and talking violently, and his wife was crying in a loud voice. Witness went up to the defendant and told him to consider himself under arrest, and immediately the defendant drew back his stick and told witness to stand back; that he had done nothing to be arrested for, and would not be arrested. The defendant held the stick uplifted and in a position as if he intended to strike the witness, and witness, believing he was about to strike, got out of defendant’s way, and defendant and his wife then walked on down the road. The stick was the limb of a sycamore tree, four or five feet long and one or two inches in diameter. Witness did not see the defendant strike his wife. When he told defendant to consider himself under arrest, he was about to take hold- of him in order to arrest him, but before he could do so the defendant lifted the stick and assumed a striking position and ordered him to stand back. Defendant is well acquainted with witness, and knew that witness was a Justice of the Peace. Witness had not issued any warrant, and did not profess to have any warrant in his possession at the time of the attempted arrest.</p> <p>William Severs, a son of the above named witness, was introduced, and corroborated the statement of his father.</p> <p>The defendant introduced one Watts, who testified that he was walking along the road in company with defendant and his wife and sister, and when they were near a bridge about one quarter of a mile from Severs’ house, he saw the defendant push his wife two or three times, and slap her, but did not see him strike her with a stick; that he went up to Severs’ house (who is a magistrate) and told him that defendant was beating his wife.</p> <p>The defendant testified, in his own behalf, that, while going along the road on the night in.question, he pushed his wife two or three times merely in play, and she fell into a ditch, and then began to cry; be denied that he struck her with a stick, and stated that he did not strike her at all; when he got in front of Severs’ house, Severs was standing in the middle of the road, and told him to consider himself under arrest, and he replied that he had done nothing to be arrested about; he walked around Sevérs and passed by him, and Severs never moved from his position; he neither raised his stick nor threatened to strike Severs; he had had one or two drinks that evening.</p> <p>Maria McAfee, wife of defendant, testified that defendant did not strike her with a stick that night; she said he did not hurt her, and that she cried because her feelings were hurt; she did not think he was angry with her, but that he had been drinking; she went home and stayed with her husband that night.</p> <p>The defendant’s counsel asked the Court to instruct the jury—</p> <p>1. That there was no evidence that the prisoner assaulted Severs, the prosecutor.</p> <p>2. That no person without a warrant could make an arrest unless he was present at a riot, rout, affray, or other breach of the peace, and he could only make the arrest then when it was necessary to prevent or suppress the same.</p> <p>3. That there was no evidence that there was any riot, rout, affray, or any breach of the peace committed by the defendant.</p> <p>4. That there was no evidence that, if a breach of the peace was committed by George McAfee (defendant), it was done in the presence of the prosecutor.</p> <p>The Court refused the first, third and fourth instructions, but gave, in substance, to the defendant the full benefit of the second prayer for instructions. On the question which was raised as to what constitutes a presence in law, the Court told the jury that an officer of the law had no power to arrest a person on a charge of assault and battery, or other breach of the peace, without a warrant, unless the same was committed in the presence of an officer; and, although it was night-time, and the officer could not see the persons committing a breach of the peace, yet, if it was done so near that what was said and done by the parties could be distinctly heard by him, this would be considered by the law as a breach of the peace committed in the presence of the officer; if Severs, the Justice of the Peace, heard defendant strike his wife with a stick, and heard her cry out, at a distance of only forty feet (as the State alleges) from where he was standing, the law would consider the deed as done in his presence, although it was night-time, and he could not see the parties. The Court also told the jury that a husband had no right to whip his wife with a stick larger than a man’s thumb, if the chastisement was inflicted from pure malice; that the State’s witness had testified that the stick used on this occasion was four or five feet long, and from one to two inches in diameter; that, while it was indictable for a husband to chastise his wife with a whip or stick out of pure malice, a husband has, nevertheless, a right to chastise his wife for the purpose of correction ; that the question of malice must be determined by the jury, who must take into consideration all the facts and circumstances testified to by witnesses in this case; if the jury believe the testimony of Severs, the Justice of the Peace, to be true, he had the right to arrest the defendant, and it was his duty to have done so, but if they believe the witnesses for the defendant, then the defendant is not guilty. There was a verdict of guilty, and defendant submitted' a motion for a new trial, upon the following alleged errors:</p> <p>(1.) That the Court refused to give the instructions prayed for, and in charging (2) that it was a question of malice whether a man was guilty of chastising his wife; (3) that the presence, under the testimony, was a sufficient presence to justify the prosecutor in making the arrest without a warrant; (4) there was no evidence that, if the defendant McAfee struck his wife, it was done with malice.</p> <p>The motion for a new trial was overruled, and the defendant appealed from the judgment rendered.</p>

This was a charge of violating an ordinance of the town of Hendersonville, tried on appeal from the Municipal Court, at the Fall Term, 1890, of the Superior Court of HENDERSON County, before Merrimon, J. ■ The defendant appealed without giving bond. The Attorney General moved to dismiss the appeal, because the affidavit and certificate of counsel are not made in compliance with the statute.

, at July Term, 1890, of BUNCOMBE Criminal Court. The jury returned as their finding a certain state of facts unnecessary to be stated, and added : “If, upon this state of facts, the Court should be of opinion that the defendant is .guilty, then they find him guilty; but if, upon this state of facts, the Court is of opinion that he is not guilty, then the jury find him not guilty.” The Court, being of opinion that the defendant is not guilty, adjudged that he be discharged.

It appears from a return to a writ of certiorari, directing the transcript of the proceedings in this case to be certified, to this Court, that the defendant was indicted for the crime of arson, and tried and found guilty before Shipp, J., at Spring Term, 1890, of the Superior Court of Randolph County, and from the judgment rendered upon said conviction he duly appealed to this Court.

This was an Indictment for Conspiracy to cheat and defraud, tried before Graves, J., and a jury, at August Term, 1890, of Moore Superior Court.

Indictment for Perjury, tried before Womack, ,/., at June Term, 1890, of Durham Superior Court.

This was an indictment for wilful injury to a house, &c., tried before Bynum, J., at the Fall Term, 1890, of the Superior Court of MONTGOMERY County.

This is an Indictment for Seduction, under promise of marriage, tried before Meares, J., at the August Term, 1889, of MeckleNBURG Criminal Court. There was a verdict of “guilty,” and an appeal by the defendant, and it is necessary to an intelligent understanding of the questions presented by his appeal to state, at some length, the testimony and charge of the Judge below.

Indictment, under chapter 51 of the Acts of 1889, tried before Bynum, J., at September Term, 1890, of the Superior Court of Davidson County.

<p>Evidence— Witness.</p> <p>A witness having stated, npon cross-examination, that the relations between her and the defendant were unfriendly, it was not error to refuse to permit the further inquiry, whether there was not a bitter feud between her family and that of the defendant, to be made.</p>

This was an Indictment for Escape, tried at Spring Term, 1890, of Stanly Superior Court, before Shipp, J. The bill of indictment charged that the defendant had arrested one J. L. Ritchie under and by virtue of a certain warrant for bastardy.

<p>Unlawful Opening and Publishing Letter — Indictment.</p> <p>It is necessary to charge, in an indictment for a violation of section 2, ch. 41, Laws 1889, and to prove upon the trial, that the letter or telegram was “sealed,” or that it was published with knowledge that it had been opened and read without authority.</p>

This was an Indictment for Murder, tried before Whitaker, J., at Spring Term, 1890, of Washington Superior Court.

<p>Eminent Domain — Constitutional Laiv — Municipal Ordinance— Police Regulation.</p> <p>The authorities of the town of S., in the exercise of their powers and duties to keep in proper condition the streets in the town, caused a water-way to be constructed through the lands of the defendant,, resulting, on several occasions, in the flooding of his premises. There had been no condemnation of the land or other acquisition of the right to the easement. The defendant placed an obstruction in the water-way, but on his own land, by which a street was * flooded and made insecure: Held, that whatever civil remedy the defendant might have against the municipality for damages resulting from the appropriation and injury of his lands, he had no right to obstruct the water-way and thereby imperil the safety and convenience of the public, and that he was properly convicted for the violation of an ordinance prohibiting such obstruction.</p>

Indictment for Murder, tried before Brown, J., at May Term, 1890, of RobesoN Superior Court. The appellant prisoner and three others were indicted together for the murder of Candis Arps. Upon their arraignment, they severally pleaded “not guilty.” . On the trial, a witness for the State, Alexander Oxendine, testified that he was present when the prisoner shot the deceased. He stated that others also fired guns at her.

Indictment for Perjury, tried before Womack, J., and a jury, at May Term, 1890, of Guilford Superior Court.

<p>Fornication and Adultery — Evidence—Burden of Proof — Judge’s Charge.</p> <p>1. On an indictment for fornication and adultery, the husband of the feme defendant is a competent witness against her to prove her marriage to him. The Oocle, § 588.</p> <p>3. The single state being presumed to exist till the contrary is shown, the prosecution is not called on to prove the defendants are not married. Marriage being peculiarly within the knowledge of the defendants, the burden is on them to show it.</p> <p>3. It is not error to refuse a prayer for instructions, however correct, when there is no evidence to support it.</p> <p>4. An exception “ to the oharge as given” is too general.</p>

<p>Indictment for Murder, tried at August Term, 1890, of the Superior Court of Lenoir County, Armfield, J, presiding.</p> <p>The prisoner was indicted for the murder of Julia Emery, alias Julia Morgan. Upon her arraignment, she pleaded “ not guilty.”</p> <p>On the trial, the State introduced as a witness Giles Parker, who testified to facts and circumstances that tended strongly to prove the guilt of the prisoner. Among other things, he testified that, about the middle of July last, he received an anonymous letter through the post-office, which he destroyed. Its contents tended to show that she was jealous of the deceased, and made threats against her. He said: “The letter was not signed. Eight or ten days after I got the letter, I went to see prisoner and asked her if she wrote me a letter. She said she did. I asked her how she got it to the office. She said she hired a black boy to carry it. I asked what Julia Morgan had done to her, and why she wanted to shoot her,” .etc., etc.</p> <p>The State introduced, next after the witness mentioned above, Jacob Cox, a colored boy of the age of twelve years, who, under objection of the defendant, was permitted by the Court to testify: “ I brought a letter to the office for prisoner. She told me not to let anybody see it but Mr. Hunter. She gave me one cent for bringing it, and gave me five cents, after that. This was in July, about one month ago.”</p> <p>The defendant excepted to the admission of the testimony of Cox concerning the letter.</p> <p>On the cross-examination of Ann Emory, mother of deceased, a witness for the State, defendant’s counsel offered to prove by the witness that, on the night of the homicide, in the presence of Giles Parker (above mentioned), other persons, and not the prisoner, were accused of the homicide, and that Parker said nothing, without previously asking Parker if this was so. The proposed testimony was excluded, and defendant excepted.</p> <p>There was a verdict of “guilty” and judgment of death, from which the prisoner appealed to this Court.</p>

This was a CRIMINAL action, instituted by a. warrant returnable before the court of the Mayor of the town of Durham, and carried by appeal to the Superior Court of Durham County, where it was tried at the October Term, 1890 before MacRae, J. The special verdict of the jury and the ruling and judgment of the Court were as follows: The jury for their verdict find— 1.

This was a CRIMINAL ACTION, tried before MacRae, J., at August Term, 1890, of Guilford Superior Court. The indictment charges the defendant with having unlawfully retailed and sold to a peison specified “spirituous liquor by a measure less than five gallons, to-wit, by the quart, the said E. C. Newcomb not having then and there a license to sell and retail spirituous liquors by the measure last aforesaid,” &c. The defendant pleaded not guilty.

Indictment for Misdemeanor, tried at May Term, 1890, of Chatham Superior Court, Womack, J., presiding.

<p>This was an Indictment for Burglary, tried before- Womack, J., at September Term, 1890, of the Superior Court of Pitt County.</p> <p>Miss Denby James, a daughter- of the prosecutor, was sworn and examined on the part of the State, and was the only witness who testified as to any facts with reference to the closing or fastening or condition of the doors, windows, etc., of the dwelling-house specified in the indictment, on the night of the alleged burglary.</p> <p>Her evidence on this point was as follows:</p> <p>“Some one opened the blinds and went in mother’s room where the children were, and then came through the partition door to my room. The window was up. It was hot weather. The blinds were fastened with a catch on the inside. I had shut the blinds myself. The person who entered through the window made his escape b}^ passing out of the same window, and as he went out I heard a noise as of some one sliding out of the window upon the ground. Very shortly thereafter I heard a noise that sounded like the click of the door of the kitchen, which was under the same roof as my bed-room and opening outside, and I heard a noise as of some one walking in the kitchen. I had fastened the kitchen door by bolting it. The intruder must have come out of the door by which he entered. * * * On cross-examination, the witness testified that in shutting the blinds that night she did not examine to see whether the blinds were fastened or not, and that she could not say and did not know whether they were fastened or hot when she closed them.”</p> <p>There was no other evidence as to whether the blinds in shutting were held by their own weight together or against any object.</p> <p>The Judge charged the jury as to the breaking, as follows:</p> <p>“ In order to constitute a breaking in this case, either the window blind must have been fastened or else the door to the dining-room and cook-room opening to the outside must have been fastened. To constitute a fastening- in either instance it is not necessary that the inmates of the house should have resorted to locks and bolts. If held in their position (having been shut by the witness Denby James), by their own weight and in that position relied on by the inmates as a security against intrusion, it is sufficient. It would not be a sufficient breaking if the blinds or door were ajar however slightly, and the prisoner simply increased the size of the opening and through it entered. The jury must be fully satisfied from the evidence in the case that either the window blind or the dining-rooin door was so shut, fastened and relied upon as a security against intrusion at the time of the entry into the house; for burglary cannot be committed by the entering through an open door or window.”</p> <p>To which charge the prisoner excepted. The Judge also charged the jury that on the bill of indictment upon which the prisoner was tried he could not be found guilty of burglary in the first degree, but the jury could render either of the three following verdicts, viz.: guilty of burglary in the second degree; guilty of larceny, or not guilty; to which charge the prisoner excepted. There was a verdict of guilty of burglary in the second degree. Rule for new trial for misdirection by the Court as set forth above. Rule discharged. Motion in arrest of judgment for defect in the bill of indictment, in that it fails to charge the particular fact constituting burglary in either of the two degrees as created and defined by chapter 434 of the Acts of 1889. Motion overruled. Judgment, and prisoner appealed.</p>

This was a criminal action, under section 1089 of The Code, tried at June Term, 1890, of Pitt Superior Court, Boykin, J., presiding. The facts are stated in the opinion.

This was an Indictment for Perjury, tried before Meares, J., at September Term, 1890, of the Criminal Court of New Hanover County. The defendant pleaded in abatement to the indictment, and it was admitted by the State, that when the bill was found there were only eleven members of the grand jury present, the twelfth grand juror having been excused by the foreman on account of his being a brother-in-law of the prosecutrix.

This was a CRIMINAL ACTION, tried at the Spring Term, 1890, of the Superior Court of Bertie County, before. Arm-field, J. The defendant pleaded not guilty to the indictment, which was as follows: “State of North CAROLINA, 1 Superior Court, Bertie County. / Fall Term, 1889.

<p>Indictment tried before WhitaJcer, J., at Spring Term, 1890, of the Superior Court of Hyde County.</p> <p>The indictment charges that the defendants “in Hyde County unlawfully and wilfully did use tongs or drags for the purpose of taking oysters from the navigable waters of North Carolina. * * * Not then and there having resided in the State of North Carolina for twelve months next .preceding the day on which they began to use said tongs and drags as aforesaid, contrary to the statute,” etc.</p> <p>Luther Swindell, a witness for the State, testified that in February, 1890, he saw the defendants catching oysters with tongs in Pamlico Sound, and that they told him their homes were in Virginia. They also told him that they were working for H. M Warburton.</p> <p>It was in evidence, on behalf of the defendants, that they were in the employ of H. M. Warburton — that they were “oystering” for him, used his tongs and lived in his house. It was also in evidence that H. M. Warburton was a resident of Hyde County and had been since August, 1888, and paid tax there in 1889.</p> <p>The defendants requested the Court to instruct the jury “iThatif, from the evidence, the jury should find, as a fact, that the defendants oystered with tongs in Pamlico Sound, being servants or employees of H. M. Warburton, a resident of the State, that they should return a verdict of not guilty.”</p> <p>The Court refused to so charge, and “instructed the jury that if they believed, from the evidence, that these defendants were residents of the State of Virginia, and being such, did catch oysters with tongs in Pamlico Sound, even though the defendants were acting as the servants of H. M. Warbur-ton, a resident of the State, that then they would be guilty, and they should so find.”</p> <p>The defendants excepted. There was a verdict of guilty. Judgment, and appeal.</p>

This was an application for habeas corpus, heard before MacRae, J., at Durham, on the 25th of October, 1890.

This was an Indictment for an Affray, tried before Bynum, J., at Spring Term, 1890, of Mitchell Superior Court. The evidence tended to prove that William Cox, now deceased, and James Sivige, on one side, and the appellants on the opposite side, engaged in a dangerous fight with guns and pistols.

<p>Arrest— Officer — Homicide— Trespass.</p> <p>1. A private person has no authority to make an arrest for a riot, rout, affray, or other breach of the peace, without a warrant, except when such offences are being committed in his presence; nor can a Justice of the Peace confer such authority by a mere verbal order or command.</p> <p>2. The authority given by section 1124 of The Code to private persons to make arrests without warrant only extends to the offences therein mentioned and committed under the conditions therein prescribed.</p> <p>3. The power conferred upon officers by section 1125 of The Code to summon private piersons to aid them in the execution of their duties is limited to the cases mentioned in that section, and while they are actually being perpetrated, or are imminent. It does not go to the extent of authorizing the persons thus summoned to make arrests, without warrant, where the offence has been accomplished and the offenders have dispersed.</p> <p>4. The rule is otherwise as to felonies. In such cases, if the crime is committed in the presence of a private person, it is his duty to make the arrest without waiting for a warrant or summons of an officer, and if it.has been committed not in his presence he may arrest without warrant.</p> <p>5. The deceased had been engaged, some hours previous, in a dangerous affray, in which he had been severely wounded, and was on his way home, carrying a pistol in his hand. A Justice of the Peace commanded the prisoner to follow and arrest him. In attempting to do so, deceased resisted, displaying his pistol, when prisoner killed him: Held, that, as prisoner had no authority to make the' arrest, he was not justified in the killing.</p>

<p>Case on Appeal — Record Controls — Prosecutor, when Taxed With Costs.</p> <p>1. When the appellant’s case on appeal is served, in time, and no exception or counter-case is served, it becomes the “case on appeal.” Booth v. Rateliffe, ante; Russell v. Davis, 99 N. C., 115.</p> <p>2. When there is a discrepancy between the case on appeal and the record, the latter controls. MeCanless v. Flinchum, 98 N. C., 358.</p> <p>3. When the Judge below finds that the prosecution is not required by the public interest, or that there was not reasonable ground therefor, the prosecutor is properly taxed with the costs. The Gode, § 737; State v. Roberts, 106 N. C., 662; Commissioners v. Merrimon, 106 N. C., 369, modified and typographical error corrected.</p>

This was an Indictment (under section 1077 of The Code) lor selling liquor to a minor, tried at the June Term, 1890, of the Superior Court of Durham County, before Womack, J. The defendants appealed. Albert Rigsbee, witness for the State, testified: “I am eighteen years old and unmarried. The defendants sold spirituous liquors at retail in the town of Durham. I never bought, liquor from either of them directly.

This was an indictment for violation of a city ordinance, tried on appeal from the Municipal Court of Asheville, in the Criminal Court of Buncombe County, before Moore, J. The defendant in the Court below excepted to the charge of the Judge that the Mayor and Board of Aldermen of the city of Asheville had power to pass the ordinances for a violation of which he was indicted.

This was an indictment for assault and battery with a deadly weapon, tried at the .July Term, 1890, of the Superior Court of Rocking-ham County, before Whitaker, J. The Judge was acting by virtue of the following commission from the Governor; Raleigh,'July 8th, 1890.