Volume 108 — North Carolina Reports

Civil action, tried before Whitaker. J., at Fall Term, 1890, of Edgecombe Superior Court. The facts appear in the opinion Judgment for plaintilf, and overruling the plea of the statute of limitations. Appeal by defendant.

<p>Apprentice — Parent and Child — Appeal—Res Judicata— Pi actice.</p> <p>Prom a judgment of the Superior Court affirming an order of the Clerk apprenticing and awarding the custody of a child, the mother appealed to the Supreme Court, where the judgment was held to be erroneous, upon the ground that the facts found did not warrant it. When the matter came again before the Superior Court upon the certificate of the Supreme Court, additional evidence was heard, which brought the case within the statute: Held—</p> <p>1. The judgment of the Supreme Court was not res judicata, and that it was proper for the Court below to hear the matter de novo.</p> <p>2. It was competent for the Judge to determine the matter without sending it back to the Clerk.</p> <p>3. Where it is found that the mother is a person of bad character, and unfit to have the care of her child, it may be apprenticed by the Clerk to another person, under the statute (ch. 169. Laws 1889).</p>

Civil action, tried at February Term, 1891, of Sampson Superior Court, Graves, J., presiding. This action is to recover the land described in the complaint. The title was in issue. On the trial, the plaintiff putin evidence a deed to him from the Sheriff'of Wayne County, dated March 10th, 1890. The land embraced by this deed is the same as that the subject of this action, and was sold to satisfy certain judgments for money against E. B. Jordan.

This was a civil action, tried before Bynum, J., on an appeal from a Justice’s Court, at Spring Term, 1890, of Mitchell Superior Court. The plaintiff complained upon an account of sixty-three dollars.

This was a motion for leave to issue execution, made before the Clerk of the Superior Court of Moore County, on the 15th day of August, 1887, after notice to the defendants. The judgment was recovered in the Superior Court of said county on the 10th day of February, 1879. The defendant Wicker filed a written answer to the motion, in which he alleged that he had paid the judgment in full.

Civil action, tried before MacBae, J, at April Term, 1890, of Wake Superior Court. The defendant failed to make the annual- report to the Governor required by the statute (The Code, §1959) for the year ending the 30th day of September, 1888. The relator brought this action in the name of the State to recover the penalty of $500 prescribed and allowed by the statute (The Code, § 1960) in case of such failure.

This was a civil action, brought to recover damages for an injury received while getting on defendant’s train, tried at September Term, 1890, of the Superior Court of WarreN County, before Whitaker, J. The plaintiff testified that he was at Macon depot on or about the 25th of November, 1889, and purchased a ticket from Macon to Vaughan from Rodwell, agent of the defendant. “In a few minutes the local freight came to Macon.

Civil action, tried at February Term, 1890, of Johnston Superior Court, Mac Rae, J., presiding.

This was a motion to continue an injunction till the hearing of the cause, heard at Chambees on the 20th day of January, 1891, before Brown, J. Under the .provisions of the original charter of the… Held: until the rights of the petitioners can be determined upon a final hearing, or until passed upon by the Supreme Court, ordered that the injunction theretofore issued be continued until ihe further order of the Court. The defendant appealed.

<p>This is a civil ACTION which was tried before Womack, J, at October Term, 1890, of Vance Superior Court.</p> <p>The plaintiff declared upon a note executed by the defendant to Ruffin & Hairston, and on Ballou, for $1,416.67, dated 14th June, 1888, due one year from date, and alleged that it purchased for value before maturity.</p> <p>The defendant answered, setting up fraud and misrepresentation by the original payees at the time of, and vitiating the instrument sued on.</p> <p>Plaintiff offered in evidence the note sued on, and rested.</p> <p>The defendant then introduced evidence tending to establish his defence.</p> <p>The Court charged the jury that if they believed the testimony, the plaintiff was entitled to recover.</p> <p>Defendant excepted. Verdict and judgment for plaintiff, and defendant appealed.</p>

This was a civil action', heard and determined before Boykin, J, at June Term, 1890, of Pitt Superior Court.

Civil ACTION, tried before Whitaker, It appears that shortly before the 25th of August, 1877, W. S. Tayloe died intestate in the county of Hertford, and on that day the defendant was appointed and qualified as administrator of his estate.

MotioN to vacate judgment rendered in Pasquotank Superior Court, heard before Connor, J., on Pall Circuit, 1890. The defendants moved to set aside a judgment obtained against them by the plaintiffs, upon the ground of surprise and excusable neglect. The following are the facts found by the Court below,' and its order thereupon : The Fall Term, 1890, of Pasquotank Court began on Monday, September 15th.

Civil action, tried before Womack, J, at January Term, 1890, of NORTHAMPTON Superior Court. The defendant James D. Boone was continuously Clerk of the Superior Court of the county of Northampton from December, 1879, until the 8th of December, 1884, and his co-defendants are sureties to his official bonds, alleged breaches of which are the subject of this action.

This was a civil ACTION, tried before Philips, J., and a jury, at Fall Term, 1890, of the Superior Court of Madison County. The purpose of the action was to declare the defendant a trustee for the benefit of the plaintiff Polly as to a certain tract of land described in the complaint.

This was an action of waste, tried at Spring Term, 1890, of NokthamptoN Superior Court, before Womack, J. The plaintiffs alleged as a ground for demanding damage that the defendant committed voluntary waste by cutting valuable timber trees, and also permitted the dwelling-house, stables, barns and out-houses to fall into decay for want of repairs.

This was a civil ACTION, tried at May Term, 1890, of Bertie Superior Court, before Armfield, J., on the verified complaint, which is in these words: The plaintiff complains, and alleges— ' 1.

This was a civil action, tried before Philips, J., and a jury, at Spring Term, 1890, of Mecklenburg Superior Court. Appeal by the plaintiff. The facts sufficiently appear in the' opinion.

Special proceeding for partition of land’, heard before Whitaker, J., on appeal from the Clerk at Spring Term, 1890, of Gates Superior Court. The defendants had no counsel before the Clerk, and filed no answer to the complaint. As the record shows, the commissioners were regularly appointed, and met on the premises, and, after being duly sworn, divided the land and made,their report The plaintiffs excepted to the report, as shown by the record.

Civil action, tried before Philips, J., at February Term, 1890, of tlie Superior Court of Union County. ' The plaintiff alleges, in substance, that from the 25th of October, 1888, to January 21st, 1889, he deposited with the defendant from time to time divers sums of money, aggregating the sum of $19,405 72; that from time to time during that period he drew checks upon the defendant, which were paid, for divers sums, aggregating $16,804.21, leaving a balance due to him of…

<p>Con tract— Guaranty— Counter clai m.</p> <p>Plaintiffs contracted with a municipal corporation to construct waterworks and to furnish the corporation with an adequate supply of water for all fire, sanitary and other public purposes for which the corporation agreed to pay a fixed rent; it was stipulated in the same clause that upon a failure to furnish such supply the corporation should pay no rent. In another clause of the contract plaintiffs guaranteed to furnish a force or pressure sufficient to throw from any fire hydrants, at same time, five streams of water seventy-five feet high. Plaintiffs complied with the conditions first named, but not with the last, and thereupon the city refused to pay rent: Held, (1) that the clauses were distinct in their purpose and effect, and that the corporation had no right to refuse payment of rent for the breach of the guaranty in respect to the pressure necessary to throw the water seventy-five feet; (2) that for any breach of said guaranty the corporation had .a remedy which might by proper pleading be set up as defence to an action for recovery of rents.</p>

This was a Motion to continue a restraining order in an action pending in Pasquotank Superior Court, heard at Chambers, in Washington, N 0., on June 18th, 1889, before Brown, J. An affidavit (supported by certified copy of issues, etc.) was filed in this Court, to the effect that a judgment had been rendered in this case against the plaintiff upon issues found by a jury, and that no appeal was taken, and the trial was had since the order made in the injunction proceeding.

This was a civil ACTION pending in Halifax Superior Court, heard upon motion for an injunction before Philips, J., at Chambers in Tarboro, on July 19th, 1890.

<p>Deed — Execution—Delivery—Seal—Subscribing Witness— Probate — Registration—Evidence—Fraud—Statute.</p> <p>1. A party against whom the registry of a deed (or other instrument), or a copy thereof has been introduced in evidence, cannot then raise the objection that there is a variance between such registry, or copy, and the original instrument; if he desired to avail himself of such objection he should have required the production of the original in the way provided by the statute (The Code, § 1251).</p> <p>2. While the statute of North Carolina (The Code, § 1554) requires all deeds conveying lands to be signed by the maker, the signing need not necessarily be at the end of the deed ; if the signature is in the body of the instrument it is sufficient.</p> <p>3. Nor is it essential that the maker should actually sign his name; he may authorize another to do so in his presence, or he may affix his mark or other symbol and thereby adopt a. seal attached, as well as his own name written in the deed, by another, and it makes no difference that the maker is able to write his name, or that there is no subscribing witness.</p> <p>4. The execution of a deed by affixing a mark, either by the maker himself or by some one in his presence thereto duly authorized, may be proved by evidence that it was a substitute habitually used by the maker for his signature and capable of identity, as proof is made of handwriting, or from the evidence of an eye-witness that he saw the mark attached, or heard the maker acknowledge it as his.</p> <p>5. A number of grantors may, by delivery, adopt a seal attached to the name of one of them, there being a recital in the deed that they had affixed their seals.</p> <p>6. If a seal is attached to the maker’s name, although there is no such recital, it will constitute the instrument a deed.</p> <p>7. The law favors those who are illiterate and will endeavor to arrive at and carry out their true intent by a liberal application of technical rules.</p> <p>8. A subscribing witness to an instrument may adopt a mark or any other symbol for his signature, when such mark or symbol has such peculiarities as will enable it to be identified as his act.</p> <p>9. Kegistration of deeds and other instruments required to be recorded is not made void by reason of the mistake of the officer making them ; such errors do not vitiate the probate or deprive a party of the right to read the registry as evidence; Such error being shown, the presumption of the correctness of the copy is rebutted and opens the way for the question whether the instrument was such as might be admitted to registration.</p> <p>10. The facts of the signing by the grantor and possession of the deed by the grantee being established a delivery will be presumed.</p> <p>11. The mis-recital or failure to read the contents of a deed to an illiterate grantor who requests to know what it contains is a fraud in the factum.</p>

<p>Sham Pleading — Answer—Issue—Endorsement.</p> <p>To a complaint by an executor, in which the execution by the defendant of the bond sued on, the death of the obligee, the appointment and qualification of the plaintiff, and that no payment had been made, were duly averred, the defendant answered that he was informed and believed that the plaintiff was not the owner of the bond at the time of the commencement of the action: Held, (1) that the answer was a sham and irrelevant, and, on motion, was properly stricken from the record; (2) where a party sets up the defence that the plaintiff is not the real owner of the instrument put in suit, be must state in his answer the facts upon which he relies to establish the ownership in some other person; (3) the payee or endorsee of a note is prima facie the owner and holder, and it is unnecessary that he should make such an allegation in his complaint.</p>

This was a civil action, tried at Fall Term, 1890, of the Superior Court of Edgecombe County, Whitaker, J., pre-r siding. Material facts were stated in the complaint and controverted in the answer, and a number of issues involving those questions were tendered. The Judge submitted only the single issue, “ How much, if any, is the plaintiff entitled to recover?”

This is a civil ACTION, heard upon exceptions to referee’s report at March Term, 1890, of Pitt Superior Court, Boy-kin, J., presiding. The facts, extracted from the report of the referee, presented on appeal, were as follows: 1. On the 24th of March, 1876, B. S. Atkinson was indebted to Rountree & Co. in the sum of $621.68, which amount was evidenced by one promissory note and secured by a mortgage upon the lands mentioned in the complaint. 2.

, at May Term, 1890, of VANCE Superior Court. The action was instituted for the purpose, among others, of subjecting the real estate of Mrs. Nancy Verrell, in Nash County, to the debts of the firm of Harrison Bridgers Dry Goods Company, of which firm she was a member. After the action was instituted her death was suggested, and at the February Term, 1890, her administrator was made a party.

<p>This was an action involving the title and right to possession of a tract of land, tried at the September Term, 1890, of the Superior Court of Martin County, before Womack, J.</p> <p>Appeal by defendant.</p> <p>The case is stated in the opinion.</p>

<p>This was a civil action, tried at .January Term, 1890, of Franklin Superior Court, Boykin, J., presiding.</p> <p>The only matter in controversy was between the defendant J R. Purefoy and M. Woodlief All the matters in said action in which the plaintiff’s testator, Richard Holden, had any interest were tried and determined by the judgment of the Court, rendered before the death of the said Richard Holden, who was the original plaintiff, and who was the testator of the present plaintiff.</p> <p>On the 1st day of April, 1880, Richard Holden sued out a summons against the defendant Purefoy, returnable to April Term, 1880, of the Superior Court for said county. At Fall Term, 18S1, the plaintiff filed his complaint, in which he demanded judgment for the amount of one of the notes referred to in the opinion. Subsequently, the defendant Purefoy filed an answer, setting up the contract to convey the land, and praying a specific performance. He further alleged that the defendant AA^oodlief had purchased a portion of the land and was in possession.</p> <p>On motion of defendant Purefoy, it was ordered by the Court that summons issue in the action to M. Woodlief and other parties mentioned in the order. The summons was issued on the 20th of March, 1882, and was served on VVood-lief on 1st April, 1882, and was duly returned at the next term of the Court, which began on the 9th May, 1882. At April Term, 1888, there was a decree entered for defendant Purefoy for specific performance and account by plaintiff. At next term Woodlief moved to vacate it as to him, and filed the following affidavit:</p> <p>“M. Woodlief, the above-named defendant, being duly sworn, says: That the above-named action was commenced by the said plaintiff against the said defendant J. K. Pure-foy, by the issuing of a summons on the 30th day of March, 1880, and returnable to Spring Term, 1880 of this Court; that after the return term of said action, as this affiant is now informed and believes, this affiant M. Woodlief was made a party to said action, and a summons was issued to to the defendant on the 20th of March, 1882; that the Sheriff of Franklin county saw this affiant and said to him that he (said Sheriff) had a summons for this affiant to be at the next term of the Superior Court of this county, something concerning the Richard Holden and Purefoy matter; that he did not know what it was; that the summons was not read to this affiant and he did not know the contents thereof, and was not then or at any other time informed that he was made a defendant in said action until he was examined as a witness before the referee and his attention was then called to the entry of his name in the paper; that in obedience to the notice given or service of summons served on him, hence, as above said, he did not attend the next term of the Court for three days, and saw plaintiff Holden and asked him if he had had the affiant summoned and for what purpose? that said Holden told the affiant that he had not had the affiant summoned and knew nothing about it; he thought he had been summoned as a witness to attend for three days, and not having heard his name called left for home and did not again attend; that the defendant Purefoy was not at Court at the said term and therefore this affiant made no enquiry of him; that this affiant did not know and had no belief that he was a party to said action, or that he had any interest therein and did not, therefore, employ any attorney to represent him, and, so far as he knows, no attorney has assumed to act for and represent him in said action; that he is informed and believes and so, therefore, avers that no complaint has been filed against him by the plaintiff in said action, and that in plaintiff’s complaint made therein no averment or charge of fact is made by plaintiff against the defendant and there is no prayer for judgment against him, and there is no prayer for judgment in plaintiff’s said complaint against this affiant; that at Spring Term, 1885, of this Court the defendant Purefoy filed his answer, in which he alleged that the affiant had.purchased and was in the possession of part of the land mentioned.”</p> <p>The judgment was vacated as to Woodlief, and the defendant Purefoy appealed.</p> <p>The other facts necessary to an understanding of the matters presented for review are stated in'the opinion.</p>

This is an appeal from Womack, J., at January Term, 1890, of Northampton Superior Court. The action was begun in the Superior Court, in the name of the State on the relation of Maggett v. Roberts, the Register of Deeds of said county, and his sureties upon his official bond.

Action to recover land tried at May Term, 1890, of Bertie Superior Court, before Armfield, J. The facts agreed upon were as follows: 1 Some years prior to the war, Stephen Ruffin and Sylvia Ruffin, a slave man and woman, cohabited together as man and wife, and the plaintiffs Martha and Kate Jones, Edmund and Stephen Pugh, and Lucy Watson, and the defendant Margaret Sanderlin, were born during the cohabitation; and after the birth of the youngest of these children the…

Civil ACTION, tried before Womack, J., at June Term, 1890, of Durham Superior Court. The defendants tendered the following issues; 1. Was the deed of assignment mentioned in the complaint made with intent to hinder, delay and defraud the creditors of Bowers & Arendell? 2. Did the defendant B. W. Matthews have knowledge at the time of any such intent? 3. What was the value of the property assigned?

Civil action-, tried at March Term, 1890, of Orange Superior Court, Arm,field, J., presiding, to recover the penalty for imprudently issuing a marriage license. Only so much of the testimony as relates to the point decided is reported. See same case in 104 N. C., 651. The plaintiff introduced the marriage license, which was in the usual form, and testified: “Mollie Cole is my daughter. She lacked ten days of being fifteen years old when she was married.

<p>Trial — Judge’s Charge — Exceptions—Negligence—Physicians— Malpractice.</p> <p>1. The Judge is not hound to recapitulate all the evidence in his charge to the jury; it is sufficient for him to direct the attention of the jury to the principal questions they have to try, and explain the law applicable thereto.</p> <p>2. If a patty desires the entire testimony, or any specific part thereof, recapitulated to the jury, he should make the request in apt time and before verdict.</p> <p>3. An appellant may assign error for misdirection to the jury, for the first time, in the preparation of his case on appeal.</p> <p>4. In an action against a physician for malpractice, the Court charged the jury that “ordinary skill” was the skill which a surgeon would, under the circumstances of the case, reasonably use in treating the case, and left the facts to the jury: Held, that the failure to give more explicit instructions, in the absence of a prayer to that effect, was not such error as would warrant a new trial.</p>

<p>Civil action, tried at November Term, 1890, of Durlin Superior Court, Brown, J., presiding.</p> <p>The opinion contains a statement of the material facts.</p>

Civil actioN, tried at January Term, 1890, of New Hanover Superior Court, Mclver, J., presiding.

<p>PetitioN for writ of habeas corpus, heard before Graves, J., at Spring Term of Onslow Superior Court.</p>

This was a civil action, tried before MacRae, J., at August Term, 1890, of Orange Superior Court. The action was brought to recover possession of three tracts *of land which plaintiffs claimed 'under a deed from the Collector of Internal Revenue for the Fourth Collection District of North Carolina, upon a warrant of distraint against the property of the defendant David li. Holmes.

Civil action, tried before MacRae, J., at Special (September, 1890), Term of Alamance Superior Court. There was judgment for defendants, and plaintiffs appealed. The case is stated in the opinion.'

Civil action, heard upon caso agreed at Fall Term, 1890, of Alamance Superior Court, MacRcte,presiding. The action was brought by the children of Cornelia Blunter, deceased, against her administrator, and others claiming as assignees, to recover the amount collected by the administrator on a policy of insurance issued by the Valley Mutual Life Association of Virginia. Judgment was given for defendants, and plaintiffs appealed.

Civil action, tried before MacRae, J, at February Term,, 1890, of Wake Superior Court. Oakley Harrison and bis brothers and sisters divided the lands, which had been conveyed to them by their father, by deeds of partition among themselves without legal proceedings. The deed for Oakley Harrison’s share was made to him and Juda his wife, who, since his death, has intermarried with the defendant Ray.

This is a civil ACTION, which was tried at September Term, 1890, of -WayNE Superior Court, Boykin, J., presiding. The complaint alleges— 1.

This was a civil action, tried at the November Term, 1890, of the Superior Court of LeNOIr County, before Arm-field, J. The plaintiff, in his complaint, in substance, alleged that in 1875 he owned a tract of land known as “Vernon;” that at the request of John C. Washington, he, by deed, absolute on its face, conveyed it to the defendant Julia; that at and before the making of this deed, 'said John, on behalf of said Julia, agreed with plaintiff that out of the rents and…

Civil ACTION for recovery of real estate, tried before Graves, X, at April Term, 1890, of New HaNOVER Superior Court. The case was submitted upon facts agreed, from which it appeared that William Tucker died in 1880, seized of land in controversy, leaving the plaintiff, his only brother, leaving no children, and the defendant, his widow. By proper procedings, the premises were allotted to the widow as her homestead in lieu of dower.

This is a motion, before Craves, J., at the October Term, 1890, of Superior Court of Moore County. The defendant moved for judgment upon the face of the pleadings.

This was an appeal from a Justice’s judgment in a civil ACTION on a note for $175 due ninety days after November 5,1886, with, interest at eight per cent., tried before MacJRae, J., at November Term, 1890, of 'Cumberland Superior Court. The execution of the note was admitted, and also that the defendant Rosenthal and McQueen’s estate were sureties only, Tomlinson being principal on the note.

This is a civil action, which was tried at November Term, 1890, of Cumberland Superior Court, McicRae, /., presiding. The action involved the taking of an account.

This was an action of claim and delivery, tried at the November Term, 1890, of the Superior Court of Cumberland County, before MacRae, J. Appeal by defendant. The facts are stated in the opinion.

<p>This is a creditor’s bill, instituted in the Superior Court of . Iredell County, and heard upon exceptions to report before Bynum, J., at November Term, 1890.</p> <p>It appears that Ann Patterson died intestate in the county of Iredell before the 4th day of October, 1875, and on that day the defendant was appointed and qualified as administrator of her estate, and gave notice to all persons having claims against the estate to exhibit the same to him within twelve months, etc., as required by the statute (The Code, § 1421).</p> <p>■ The' defendant brought an action against certain parties which was not determined until after the lapse of several years, and then adversely to him. In the meantime, he had failed to wind up and administer the estate in his hands according to law. Within twelve months next after he gave notice to creditors to present their claims, he paid to certain of the next of kin of the intestate considerable sums of money, on account of their respective distributive shares, and took their receipts for the same.</p> <p>On the 3d of February, 1883, the plaintiffs brought this special proceeding in behalf of themselves and all other creditors of the said intestate to compel the defendant to an account of his administration and to pay the creditors what might be payable to them respectively. The defendant was duly served with a summons of the 19th of February, 1883. On the 3d of' March, 1883, the plaintiffs filed their complaint alleging a cause of action and the indebtedness of the intestate to them respectively for divers sums of money. Thereupon the Clerk advertised for all creditors of the intestate to appear before him on or before the time designated and file evidence of their claims, etc. Afterwards, on the 9th of April, 1883, the defendant moved to dismiss the proceeding because the advertisement wras not regular and was insufficient. The motion was denied, and fresh advertisement made. The defendant did not then answer the complaint, but the Court gave time to answer until the 21st of May, 1883.</p> <p>Afterwards a further advertisement was made for creditors to present their claims on or before the 7th of September, 1889. Notice was also served upon the defendant to appear before the Clerk on the same day to exhibit, on oath, a list of all claims against his intestate’s estate, &c. Afterwards, on the 1st of October, 1889, upon affidavit filed, the defendant moved to be allowed to file his verified answer to the complaint. The complaint was verified when filed. An answer, unverified, was found among the papers, but when it was filed did not appear. After contention of the parties, the Clerk allowed the defendant to file an answer, in which he might “ set up only meritorious pleas, to-wit, allowed him to set up only pleas of payment, counter claims, or sets-off which he might have,” but he was not allowed to plead the statute of limitations. The defendant excepted.</p> <p>Afterwards, the Clerk examined claims presented by creditors of the intestate, heard evidence, &c., &c., filed his report of account stated, &c. To this report the defendant filed divers exceptions which were not sustained. The Clerk gave judgment for the plaintiffs, and the defendant appealed to the Judge of the Court in term time.</p> <p>The Court, in term time, overruled all the defendant’s exceptions, found the facts to be as found by the Clerk, and affirmed his rulings and gave judgment upon the report for the plaintiffs, and the defendant, having excepted, appealed.</p>

MotioN, heard before Bynum, J., at November Term, 1890, of Iredell Superior Court. Among the exceptions heard by Judge Avery, and which Judge MacRae refused to rehear at previous terms, are the following, numbered 8 and 4. (See case reported, 100 N. C., 854). “3.

This is a special proceeding, instituted by the plaintiff for license to sell lands of his intestate to pay debts, and heard at Fall Term, 1889, of Surry Superior Court, Gil-mer, J, presiding.

<p> Appeal. </p> <p>When the transcript of the record is not accompanied by a case on appeal (wh.ere such case is required) and no error appears in the record, the Supreme Court will, upon motion, or mav. ex mero motu. affirm the judgment rendered below, unless good cause is shown for the apparent laches of the appellant.</p>

<p>Attorney and Client — Evidence—Issues.</p> <p>1. The rule 'which excludes evidence of c mnmnications between attorney and client as privileged, does not extend to those cases where the witness was counsel for both parlies, or to communications between the parties in the presence of counsel, or when made by one party to the attorney of the other.</p> <p>2. A mortgagee is a competent witness to the fact of the payment of a debt and the cancellation of a mortgage to secure it, as against a deceased mortgagor, if it appears the witness has no interest in the controversy. (The opinion, on this point, in this case, 104 N. C., 175, overruled.)</p> <p>3. If a party assent to the submission of an improper issue, he will not be permitted to make it the ground of exception.</p>

Proceeding for dower, heard at February Term, 1891, of Forsyth Superior Court, Bynum, J., presiding. This is a special proceeding, brought by the plaintiff against the defendants — other than the defendant creditors— who are the heirs at law of her late husband, who died intestate, to obtain dower in the lands specified in the petition.

<p>Special proceeding for partition, tried before Brown, J., at Fall Term, 1890, of the Superior Court of Rutherford County.</p> <p>The,only issue submitted to the jury was as follows:</p> <p>“ Was the first 150-acre tract described in the complaint and conveyed by Anderson Bridgers to John Beam, February 18th, 1846, purchased by John Beam with the money of his wife Elizabeth, and at her request and for her?”</p> <p>There was testimony tending to show that Mrs. Beam was possessed of certain money; that her husband voluntarily agreed to treat it as hers, and to waive his marital rights in respect to it by investing the same for her in the lands above mentioned. Neither John Beam nor his wife had any children.</p> <p>The plaintiffs requested the Court to charge that, under the testimony, the issue should be answered in the negative, and that the Court should so charge. The Court-refused to give the instruction. There was a verdict against the plaintiffs, and they appealed.</p>

J., at Spring Term, 1891, Alex-ANDER Superior Court. This was a special proceeding in the nature of a creditor’s bill for the settlement of an estate, and to subject devised lands to the payment of debts. On the hearing before the Clerk, the plaintiff demurred to the answers filed, on the ground that they did not allege facts sufficient to constitute a valid defence.

<p>Pleading— Verification — Issue—Judgment by Default and Inquiry— Corporation— Continúan ce.</p> <p>1. When a pleading by a corporation is required to be verified the verification must be ma le by an officer thereof; a verificati m by an agent merely will not suffice. The Code. §258.</p> <p>2. When a verification of a pleading is allowed to be made by an agent, it should set forth his knowledge, or grounds of belief, and why it is not made by the principal party.</p> <p>3. After a judgment by default and inquiry in an action for malicious prosecution the only issue fur the jury is the amount of plaintiff’s damages.</p> <p>4. Granting or refusing a continuance is a matter of di.-cretiOn, and not re' iewable.</p>

Civil actioN, heard upon complaint and demurrer, at Spring Term, 1890, of WayNe Superior Court, MacRae, J., presiding.

This was a civil action, tried at the April Term, 1890, of the Superior Court of Granville County, before Womach, J. The action was brought to recover damages for unlawfully removing and converting to the defendant’s own use certain machinery that had been placed in a mill run by water.

<p>This is an ACTION to recover real property tried before Armfield, J, at March Term, 1890, of Orange Superior Court.</p> <p>The plaintiffs were the nephews of one Nash Booth, claiming to be his heirs at law. The defendants claim to be his wife and legitimate children. The plaintiffs insisted that the relationship was illegitimate because the defendant Ann Bowers, the mother of the other defendants, and claiming to have been the wife of said Booth, was of negro blood within the forbidden degree. The Code, § 1284. With a view of showing this the plaintiffs introduced all the defendants and exhibited them to the jury to prove their color, and called attention to their skin, their hair and the like, but asked them no questions. Defendants’ counsel then asked leave to examine Ann. The plaintiffs objected, but the Court permitted her to be sworn as a witness and examine I. Plaintiffs excepted.</p> <p>The witness testified that she was married to Nash Booth by a Justice of the Peace, and that they had lived together as man and wife twelve or fifteen years, and that the other defendants were children born of that union. The plaintiffs again excepted.</p> <p>There were sundry other exceptions, which need not be stated.</p> <p>Verdict and judgment for defendants; appeal by plaintiffs.</p>

Civil ACTION, tried at May Term, 1890, of ChathaM Superior Court, Womack, J.. presiding. The action is brought to recover possession of the land described in the complaint. On the trial it was admitted that Matthias Siler was the owner of the land in controversy, before and at the time of his death, and that the plaintiff Lucy M. was his only surviving child and heir at law.

This was a motion for a writ of restitution, made, by the defendant, before Womack, J., at June Term, 1890, of Dun-ham Superior Court. This case was before this Court by a former appeal (Railroad, v. Railroad, 106 N. C., 16), and in that appeal the judgment of the Court below dismissing the proceeding was affirmed. Thereupon the judgment of this Court was certified to the Superior Court.

Civil ACTION, upon case agreed, tried at Spring Term,.1890, of Onslow Superior Court, Graves, J., presiding, to compel the specific performance of a contract' to convey land. - The following is a statement of the facts agreed upon by the parties to the action: “1.

Civil actioN, tried before Graves, J, at April Term, 1890, of New HaNOVER Superior Court.

<p>Easement — Evidence—Pleading.</p> <p>In the trial of an action to recover damages for an alleged obstruction of an easement over lands to which the plaintiff it id not, in his complaint, claim title, it was error to admit testimony that the plaintiff had title to the servient land.</p>

<p>This was an action of claim and delivery, tried at November Term, 1890, of the Superior Court of Harnett County, Boykin, J., presiding.</p> <p>The plaintiff R. F. Morris was introduced as a witness, and testified that he was a printer, and sold to J. J. Stone a printing outfit, for the payment of the purchase-money of which a mortgage was given.</p> <p>A chattel mortgage in the usual form and properly proven and registered was offered in evidence, and defendant objected to its admission.</p> <p>The property conveyed was described in said mortgage as follows:</p> <p>“ 1 Washington Hand Press, 2 Imposing Stones and stands,. 4 cases of Long Primer type, 1 case of Brevier type, 1 case of Nonpariel type, 2 Stands and Cases, 1 pair Chases, Rules, Slugs, Leads, display type and other articles of printing outfit, this day purchased from said R. F. Morris.”</p> <p>Witness testified further, as follows:</p> <p>“ Washington Hand Presses are made by different firms, and are of different numbers and of different sizes. Imposing stones and stands are of different sizes and of different colored stone. Primer type is of different nicks; stands are differently constructed by different manufacturers, and are of different sizes. Chases are of different sizes, ordered according to number of columns of press. Rules, slugs, leads, &c., are sold by the pound, and of different parts and sizes.”</p> <p>The subsequent ruling óf the Court is stated in the case on appeal as follows: “ Mortgage from Joseph J. Stone to R. E. Monis offered and objected to by defendant. Objection sustained, and plaintiff excepts. Plaintiff takes nonsuit, and appeals.”</p>

Civil action, commenced on April 4th, 1890, and tried at October Term, 1890, of Wake Superior Court, Boyldn, J., presiding. It was admitted that plaintiff and defendant entered into a copartnership in the year 1884, and that the copartnership was dissolved by mutual consent in the fall of 1885. There was but one issue submitted to the jury, and that was upon the statutory bar; and after hearing the evidence, the.

This special proceeding is brought to compel partition of the land specified in the petition, heard before Boykin, J., at Spring Term, 1890, of Nash Superior Court. The defendant denies most of the material allegations of the petition, and alleges that he is sole seized of the land. Both the plaintiffs and defendant claim to derive title under the will of Sion Saunders.

Civil ACTION, tried before Whitaker, J., upon complaint and demurrer, at February Term, 1891, of Halifax Superior Court. The plaintiffs alleged— ******* 3. That on the 18th day of March, 1887, Susan J. Bell executed to the plaintiffs her promissory note, whereby she promised to pay the plaintiffs, on demand, fifteen hundred dollars, with interest at six per cent, from date. 4. That no part thereof has been paid. 5.

<p>Civil action for an injunction against waste and for damages, tried at September Term, 1890, of Granville Superior Court, before Armfidd, J.</p> <p>Elijah Green, the ancestor of the plaintiffs and defendants (who, together constitute all of his heirs at law); died about the year 1855, having first made and published his last will and testament, which was duly proved and recorded, and is ill form as follows—</p> <p>“ First, I give and bequeath unto the four children which is now living .with me, namely, Elizabeth, Rachel, Francis and Elijah E. Green, the tract of land whereon I now live, in common to their use or the use and benefit of all of them or either of them during their natural life, and should either Elizabeth or Rachel or both of them marry, I desire, in that case, that they shall share equally with those of my other children heretofore married, and not with intending the property herein given to the four children herein above named, I desire it to be kept in common to their use and benefit during the natural life of all or either of them, and I also give to the same four children above named, five negroes (slaves), namely, Abram, Daniel, Solomon, Caroline and her child Henry, and all the future increase of said woman Caroline. My one-third part of the mill on the Knapp of Reed Creek and my part of the mill tract of land, three choice horses, ten head of cattle, their choice of all my stock of hogs and sheep, and their choice wagon, all the crop on hand, old and new, and provisions of every description, all my farming utensils, household and kitchen furniture which I may die seized and possessed of, to their own proper use and benefit, in the same way and with the same condition that the land is given, and it is my will and desire that all the residue of my property which is not herein named, be sold to the highest responsible bidder on a credit of one year, and the proceeds of such sale, together with all moneys on hand or otherwise due me, be collected by the proper authority and be placed in the hand or hands of my executor or executors, be properly used to the benefit of the same four children above named, which is now living with me, and at the death of the four children above named, that all said property then remaining be sold on a credit of one year, and the proceeds of such sale be equally divided between all my lawful heirs.”</p> <p>The defendants Elizabeth Green and Rachel Green are the only survivors of the four children mentioned in the devise. They are both now over eighty years old, and neither of them is married. Francis Green and Elijah Green both died without having married. The other plaintiffs and defendants are heirs at law of the testator, except H. T. Stem and _ Stem, who were lessees of the feme defendants, charged with committing -waste in the destruction of timber. There was evidence tending to show that, of three hundred acres in the home place, only eleven acres remained uncleared, and that while it was not good husbandry to clear any of it for cultivation, the feme defendants Elizabeth and Rachel Green had permitted the defendant W. H. T. Stem to remove timber for house-logs, and the defendant H. A. Stem to clear five acres of the woodland and haul off and sell valuable timber taken from it. ■</p> <p>Upon the verdict returned upon issues submitted, there was judgment restraining all the defendants from committing further waste, and against the tenants for damages, from which defendants appealed.</p>

This is a civil action, and was tried at Spring Term, 1890, of Ashe Superior Court, Bynum, J., presiding. The facts upon which the opinion is based are stated therein.

<p>Evidence — Laxos of other States — Consideratioxi—Sunday Laxos— Contract.</p> <p>1. Courts will not take judical notice of the laws of another State in the Union, or of foreign countries.</p> <p>2. Where the complaint alleged that the defendant — a common carrier— contracted for a valuable consideration to transport cattle to a place in another State by Saturday, the plaintiff giving as a reason that he desired to get the benefit of the following Sunday prices, and it was proved that the laws of the State where the cattle were to be delivered forbade sales on Sunday: Held, that it was not error to refuse to instruct the jury that the contract was based upon an illegal consideration.</p> <p>3. Evidence of the market price of a commodity on Sunday in a State where business transactions on that day are forbidden will not be heard in support of an action to recover damages for a breach of contract to deliver the goods on that day.</p>

Civil action, tried at February Term, 1891, of Bertie Superior Court, Graves, T, presiding. It appears that George Wynns died many years ago in the-county of Bertie, leaving a will, which was duly proven,, wherein he devised part of his real estate as follows: “ I give to my daughter, Elizabeth Burden, and my grandson, George IT.

Civil actiox, tried before Whitaker, J., at May Term, 1890, of Beaufort Superior Court.

<p>Process — Return— Officer— Venue — Jurisdiction.</p> <p>1. An action against a Sheriff of a county other than that from which the process issued, for mating a false return, is properly brought in the Courts of the county to which that process was returnable.</p> <p>2. The term ,l return ” means that the process must be brought back and produced in the Court whence it issued with such endorsements as the law requires.</p>

This was a civil action, tried before Boyhin, J., at October Term, 1890, Wake Superior Court. The action was brought in the name of Larkin Smith, by his next friends, A. L. Ferrell and others, appointed by the Court. The purpose of the action was to set aside a prior power of attorney executed by Larkin Smith (o the defendant Charles IT. Smith, by reason of mental incapacity, and to have a receiver appointed for his estate.

This is a civil ACTION, which was tried at January Term, 1889, of Rockingham Superior Court, Bynum, J, presiding. The summons had been personally served on both defendants. The plaintiff alleged— “ 1.

This was a civil ACTION, tried at Spring Term, 1891, of the Superior Court of Caldwell, before Rohe, J. The plaintiff was introduced as a witness in his own behalf, and testified, after defendant’s objection, that in the years 1871 and 1872, and thereafter, he was engaged in entering lands in Caldwell and Burke Counties, N. C., when Henry F. Bond, father of the defendant Louisa N. Bond, said his daughter had some $10,000 in bonds, the money on which would soon be available,…

<p>This was a civil action, tried at Spring Term, 1890, of the Superior Court of Mecklenburg County, before Philips, J.</p> <p>The facts shown and admitted by the pleadings were as follows:</p> <p>On the 30th day of April, 1858, T. B. McKee administered on the estate of William Walker, deceased, giving as sureties on his administration bond R. R. Rea, J. B. Walker and J. L. Walker. In the year 1862, J. B. Walker and the defendant W. H. Walker administered on his estate.</p> <p>On the 14th day of August, 1882, the plaintiff Ann E. Brown and others, the distributees of William Walker, brought an action against T. B. McKee and the sureties on his administration bond, including the defendant W. H. Walker, as administrator of J. B. Walker, in the Superior Court of Mecklenburg Count}'.</p> <p>The summons in said action was served on the defendant W. PI. Walker, administrator, but he failed to appear or file any answer to the complaint.</p> <p>filie cause was referred to the Clerk to take and state an account of the estate of Wm. Walker in the hands of said McKee, as his administrator, for the purpose of ascertaining and reporting the amount due to the plaintiffs as dis-tributees of Wm. Walker.</p> <p>The referee filed his report at the February Term, 1888, of said Court,showing a balance of more than $l,v00 in the hands of the administrator, with interest thereon from the 15th day of October, 1872; and no exception having been filed the report was, at that term of the Court, confirmed.</p> <p>The present action was brought against W. H. Walker as administrator of J. B. Walker, and heirs at law and dis-tributees of J. B. Walker, on the 26th day of November, 1888, to enforce said recovery.</p> <p>When the cause was called for trial the defendant W. PI. Walker moved the Court to make T. B. McKee, and the other sureties on the bond of said McKee, administrator of Wm. Walker, parties to this action, insisting that they were necessary parties to a complete determination of the matters involved therein. The Court refused the motion, and the defendant W. H. Walker excepted.</p> <p>The plaintiff offered in evidence the record of the suit begun in August, 1882, and rested her case.</p> <p>The defendant W. EL Walker asked the Court to submit issues to the jury raised by his answer to the complaint, and also offered evidence to establish the different defences therein set up, all of which was objected to by plaintiff upon the ground that the judgment in the case of Ann E. Brown et al. v. T. B. McKee et al. was conclusive'as to W. H. Walker, administrator, as to all defences set up by him in said answer; and by the defendants EL K. DeArmond and wife, upon the ground that, while the judgment was not conclusive as to the statute of limitations upon said defendants DeArmond and wife, nor as to the defence and denials contained in their" answer, the defendant W. EL- Walker, administrator, having failed to appear or plead, the judgment was, as to him, an absolute and final judgment, in the sense that it fixed him with assets to pay the debt sued for, and that he could not now be allowed, in this way, to change its nature or effect as an absolute judgment to the prejudice of said defendants DeArmond and wife.</p> <p>This objection was sustained, and the Court refused to submit the proposed issues, or to allow the evidence to be introduced, and the defendant W. EL Walker excepted.</p> <p>After the argument addressed to the Court was begun, the counsel for the defendant Walker, administrator, contended that there was nothing in the record of the action of Ann E. Broimi et al. v. T. B. McKee et al. to show that J. B. Walker, the intestate of W. EL Walker, died before the 1st day of July, 1869, or that the defendant W. H. Walker, administered on his estate prior to that date, and contended that the judgment on which this action' is based was not a .final judgment, and not a judgment absolute as to this defendant, but only ascertained the indebtedness of T. B. McKee as administrator of William Walker. Thereupon, an issue was submitted as follows :</p> <p>“When did W. Ii. Walker take out letters of administration upon the estate of J. B. Walker?”</p> <p>The plaintiff and defendant H. K. DeArmond and wife then introduced evidence tending to show that J. B. Walker died in 1862, and W. H. Walker qualified as his administrator in (1862) the same year; also the answer of defendant W. H. Walker, which admitted that said W. PI. Walker made a settlement of the estate of his intestate in the year 1864. •</p> <p>The defendant W. H. Walker duly objected to the evidence. The Court overruled the objection, and the defendant W. PI. Walker, administrator, excepted. Upon the evidence and the Judge’s charge in reference thereto, the jury answered the issue as follows: ■</p> <p>“ At July Term, 1862, of the Court of Pleas and Quarter Sessions of Mecklenburg County.”</p> <p>The defendant Walker asked the Court to instruct the jury that the effect of the record of the action offered in evidence by the plaintiff was not a suit upon the administration bond of T. B. McKee, administrator of William Walker, for the reason that it was not instituted by the State on the relation of the parties in interest, but that the same was a suit instituted by Ann E. Brown against the defendants therein named, and that the judgment therein rendered did not fix the defendant Walker with assets. The Court declined to give the instructions, but held that said judgment was an absolute judgment against said W. H. Walker,'and fixed him with assets. To the refusal of the Court to give the instruction prayed, the defendant W. H. Walker excepted. Judgment for the plaintiff against W. H. Walker, administrator, and in favor of DeArmond and wife.</p> <p>The defendant W. H. Walker appealed to the Supreme Court, and assigns as causes of error—</p> <p>1. The refusal of his Honor to make others parties to the action.</p> <p>2. The refusal of,his Honor to submit the issues and receive the testimony offered by the defendant Walker to establish the defences set up in his answer.</p> <p>3. The introduction of parol testimony to show when the defendant Walker administered on the estate of J. B. Walker.</p> <p>4. The ruling of the Court as to the effect of the judgment rendered in the action of Ann E. Brown et al. v. T. B. McKee, Administrator, et at.</p>

Civil actioN, tried at Fall Term, 1890, of MeckleNburg Superior Court, Broten, J., presiding. The action is brought to recover the value of a bale of cotton which, it is alleged, belonged to the plaintiff and was converted by the defendants to their own use.

Civil action, tried at Fall Term, 1890, of Chatham Superior Court, MacRae, J., presiding. There was a verdict and judgment thereon for the defendants, from which the plaintiff appealed. In the argument to the Court and jury, the counsel for the defendants began to read the charter of the North Carolina Railroad Company, being Laws of 1848-’49, ch. 82. Objection was at once made by plaintiff, because the charter had not been offered in evidence.

<p>MotioN of plaintiff in this Court to re-tax costs.</p>

<p>Contract — Evidence—“ Letter-heads ” and Advertisements.</p> <p>Upon an issue whether goods had been delivered to defendant as upon consignment, or upon an absolute sale — the letter containing the order being indefinite on this point — the “letter-head” of the defendant, printe 1 upon the paper upon which the order was written, in which he described his business as “ General Merchandise Broker ” and solicited consignments, was some evidence to be submitted to and considered by the jury in determining the nature of the transaction.</p>

<p>Motion to dismiss appeal.</p>

Motion by plaintiff in Supreme Court, where the cause was pending, for a writ of venditioni exponas to issue for the purpose of selling the more valuable shares in a partition proceeding, which were charged with the payment of certain sums for oweltjr of partition.

Civil action, tried at Fall Term, 1890, of Alamance Superior Court, MacRae, J, presiding*. plaintiff’s appeal.

This was a proceeding for condemnation of right-of-way, tried at September Term, 1889, of the Superior Court of Clevblakd County, Connor, /., presiding. The facts agreed were as follows: 1. That on 27th October, 1855, and for some time previous thereto, the land described in. the complaint was owned and possessed by Wm. H. Cabiniss, under whom plaintiff claims title, having purchased in 1869, and that plaintiff is now the real owner of said land. 2.

<p> Petition to Rehear. </p>

This was a civil action, for damages for breach of contract, tried before MacRae, J., at November Term, 1890, of Cumberland Superior Court. The single issue submitted, with the response thereto, was as follows: “Is the defendant indebted to the plaintiff as alleged; if so, in what sum? Answer.

This was a civil actiox, tried on appeal from a Justice, by Armfield, J., at Spring Term, 1890, of Beetie Superior ■Court. The plaintiff's brought this action in the Court of a Justice of the Peace to recover the price of certain goods — shoes— sold by them to the defendants.

This was a civil ACTION, tried at February Term, 1890, of CraveN Superior Court, by Womack, J. This is a proceeding in which the plaintiff applied for a writ of habeas corpus to. obtain, possession-, of-three of-her minor children named, alleged to be in the possession of the defendant. The writ was issued and served, and return thereof made.

This was a civil action- heard, upon exception to a referee’s report, at October Term, 1890, of Edgecombe Superior Court. 1 This action was brought by creditors of the intestate of the defendant to compel him to an- account of his administration and to pay the creditors what may be- payable to them, respectively. The pleadings raised issues of fact and law.

ActioN tried before Womack, J., at March Term, 1890, of Halifax Superior Court. The _ plaintiff brought this action to receiver damages alleged to have been occasioned by the negligence of defendant, in that while he was in the regular discharge of his duty as mail agent in one of the cars attached to and forming part of one of defendant’s regular passenger and mail trains, in motion, the same was throwp violently from the track, and he sustained serious physical injuries.

This was a civil ACTION, tried before Womack, J., at January Term, 1890, of Nokti-iamptoN Superior Court, to recover-damages against the defendant for the loss by fire of certain property insured by the defendant as set forth in the pleadings.

This was a civil action, tried at Fall Term, 1890, of Edgecombe Superior Court, by Whitaker, J. Its purpose was to recover damages occasioned by the alleged fraud and deceit of the defendants perpetrated upon the feme plaintiff in the sale to her of the tract of land mentioned in the complaint. The pleadings raised issues of fact. The only evidence produced on the trial was as follows: R. Ii. Gatlin, for plaintiff: “Bought land from John IT.

<p>Damages — False Arrest — Non-residents—Insolvent Debtors — Constitution — Imprisonment for Debt — Assignment — Discharge — Fraud— Tort— Trustee— The Code — Homestead.</p> <p>1. In an action for damages for a false arrest, the plaintiff obtained an order for the arrest of the defendants, who were non-residents. They being unable to give bail, filed their petition to be allowed the benefits of this statute relating to insolvent debtors: Held, they were entitled to the benefits of such statute.</p> <p>2. There is, under the Constitution, no imprisonment for debt in this State, except in cases of fraud, and in such cases the defendant in arrest may be diechargt d either by giving bail or surrendering his property for the benefit of creditors, as provided by statute.</p> <p>3. The statute entitled “Insolvent Debtors” piottcts ftom future arrest for the same such as have surrendered their property, though after-acquir< d property may be subject to execution and sale, in proper cases.</p> <p>4. Every person taken or charged on any order of arrest for default of bail, or on -surrender of bail in any action, and every person taken or charged in execution or arrest for any debt or damage rendered in any action whatsoever, is entitled to the benefits of the chapter entitled “ Insolvent Debtors.”</p> <p>5. The benefits of the statute extend as well to those arrested for torts as for debt, and the debt growing out of one is no more a debt and no more entitled to extraordinary process for its collection than the other.</p> <p>6. In order to prevent undue preference in favor of parties whose debts are already ascertained, the proper remedy of the party seeking to establish and secure his damages for tort is to have a trustee appointed, under The Code, £§2957, 2977, 2981, to hold and distribute among creditors when and as soon as all debts are ascertained.</p> <p>7. The benefits of the statute are not confined to the residents of this State, but non-residents cannot take the benefits of this homestead and personal property exemptions; nor are they entitled here to any exemptions given by the laws of their own State.</p> <p>Davis, J., and Avery, J., dissented.</p>

This was a civil actioN, tried before Boykin, J, at January, Term, 1891, of GraNVille Superior Court, on an appeal from a Justice of the Peace. By agreement the case was withdrawn from the jury and submitted to his Honor to find the facts. Plaintiffs introduced a bond for $200, signed by N. H. Whitfield and defendant Davis, which had been assigned to them.

This was a oivil ACTION, tried on appeal from a Justice of the Peace at the January Term, 1891, of GraNVJXLb Superior Court, before Boykin, J., a jury trial having been waived by the parties.

This was a civil ACTION, brought to recover damage for trespass and involving title, tried at Fall Term, 1890, of the Superior Court of Alamance County, before' MacRae, J. The descriptions contained in the deeds offered by the plaintiff to show title are set forth in the opinion. The defendant contended that the deeds were void for uncertainty in all of the descriptions.

This was a civil action, tried at October Term, 1890, of Durham Superior Court, before MacRae, J. It appears that Julius B. Warren died intestate in the county of Durham in the month of June, 1889, and the defendant W. A. Warren duly b.ecame the administrator of his estate. This action is brought by the creditors of the intestate to compel the defendant administrator to an account of his administration, and to pay the creditors what may be payable to them respectively.

This was a civil actioN, tried at September Term, 1890, of Alamance Superior Court, before MacRae, J. The complaint alleges that the plaintiffs sold to the defendants certain machinery for the consideration alleged, and that there is a balance of the purchase-money due them for the same, which the defendants refuse to pay, etc. The answer admits that such balance was unpaid, but it alleges a counterclaim, the cause of action being damages sustained by reason of the failure…

This is an appeal by the plaintiff from a judgment rendered by Womack, J., in a civil action tried before him at April Term, 1890, of the Superior Court of GraNVILle County. The complaint alleges, in substance— 1. That on the 2d of February, 1886, the defendants William Bobbitt and R. B. Hines w ere copartners in the management and conduct of the Meadows Warehouse, in Oxford, N. C., and for the sale of leaf tobacco. 2.

<p>Deed — Heirs—Fee-simple-—-Construction— Warranty — Premises — Habendum.</p> <p>Wherever the word '‘heirs” in a conveyance executed before 1879 is joined as a qualification to the name or designation of the bar-gainee. even in the clause of warranty, or where this covenant is confused with the premises or habendum, if, by transposition, parenthesis or punctuation, the word “heirs” can be made to qualify the apt words of conveyance, the instrument will be construed to convey a fee, and this though the words have to do duty in the warranty and in connection with the words of conveyance.</p>

<p>This was a MOTION to dismiss an appeal,from the Court of a Justice of the Peace, heard at October Term, 1890, of the Superior Court of Durham County, before MacRae, J.</p> <p>The facts are stated in the opinion.</p>

This was a civil action, tried at October Term, 1890, of Wake Superior Court, before Boykin, J. This action was brought to recover damages of the defendant for having induced the plaintiffs to accept a lease of a certain ice plant and machinery and purchase certain bonds, by false and fraudulent representations made by defendant, as set out in the complaint. Issues were submitted by the Court, as follows: 1.

Civil ACTION, brought by appeal from Dujrham Superior Court, before Boykin, J. This action is brought to recover damages occasioned by the false and fraudulent representations of the defendants to the plaintiff, whereby the latter was intentionally misled and induced to buy from the defendants certain shares of the capital stock, of no value, of a corporation named, and in consideration thereof to convey to the defendants his tract land of great value, etc. Plaving in view…

<p>Removed of Administrator — Appointment of Next of Kin— Renunciation.</p> <p>1. The next of kin of a deceased person has a right to administer upon his estate within six months after his death, or, in lieu thereof, within that time to have appointed such person as he may select, if in other respects qualified.</p> <p>2. The Code requires that before any person other than the next of kin can be appointed administrator within six months from the decedent’s death, a written renunciation of such next of kin must be filed with the Clerk, unless after thirty days, upon citation to show cause, he is adjudged to have renounced ; and the mere expressed intent of such person that he would not have anything to do with the administration is no valid renunciation.</p> <p>3. If the next of kin, in answer to citation, name his appointee, and such person, after appointment, fails to qualify, then, though six months had not expired, the Clerk would be authorized to appoint another.</p> <p>4. In a proceeding to remove an administrator, one N., and have appointed in his stead E. W. T., instituted by the decedent’s next of kin, W., it appeared that the decedent died in May, 1890 ; N. was appointed in Jnne, and after W. had declared she would not have anything to do with the administration. In September W. wrote to the Clerk who made the appointment, that she still claimed the right to administer and wished the appointment of one J. S. T., and J. S. T. wrote he would accept. In October W. filed a paper formally renouncing her right to administer in favor of E. W. T., and the motion for the removal of N. and the appointment of E. W. T. in his place was heard on October 27th, and refused on the ground that she (W) had already renounced in favor of J. S. T.: Held, to be error, — (1) E. W. T. should have been appointed, and was not bound to go before the Clerk to qualify within the six months from the decedent’s death, nor at all, pending the appeal to the Judge upon the Clerk’s refusal of the motion for removal and appointment, and after the Clerk had adjudged that the plaintiff had not the right to administer; (2) The proper course of procedure,is to allow E. W. T. reasonable time after N.’s removal, not less than thirty days, to qualify; (3) The Clerk has no jurisdiction to appoint pending the appeal.</p>

This was a Civil action, in the nature of trover, brought to recover the value of certain fish-scrap and oil sold by B. L. Webb & Co., who were in charge of plaintiffs’ mills, to the defendant, tried at Fall Term, 1890, of the Superior Court of Carteret County, before Armfield, J. His Honor refused to give instructions asked, and charged the jury as follows: “That the contract between plaintiffs Howland and B. T. Webb & Co., was' not a copartnership contract, but was a…

<p>This was a civil action, tried before Boykin, J., at January Term, 1891, of Gkanville Superior Court.</p> <p>The facts are sufficiently stated in the opinion.</p>

This was a civil action, tried at November Term, 1890, of Granville Superior Court, before MacRae, J. The plaintiffs executed to the defendant a bond, whereof the followdng is a copy: “$5,000.

This was a special proceeding for the partition of real estate between the heirs at law of one Gray Barbee, tried, upon appeal from the Clerk, before MacRae, J., at October Term, 1890, of DuuhaM Superior Court. The questions presented for review ■ related to certain alleged advancements made by the said Barbee to several heirs mentioned in the petition. The facts are set out in the opinion.

<p>Estoppel of Record — Judgment—Parties —Pleading—Deposition, token competent — Evidence— Cross-examination.</p> <p>1. A judgment that •“ plaintiffs are permitted to withdraw their action or special proceeding because the same was prematurely begun, and leave is given the defendants to withdraw their counterclaim,” cannot be pleaded as estoppel as between the parties thereto in another action between the same. Such judgment is no final determination of the controversy.</p> <p>2. It is not necessary, to render depositions competent to be read in evidence. that they should have been taken in the same action ; it is sufficient if they were taken in another action or proceeding between the same parties in relation to the same subject-matter, or involve the same material questions, and the adveise party had opportunity to cross-examine the witness making them; nor was it necetsary that proceedings should have been taken in a Court of law or equity to render them competent.</p>

This was an action for slander, heard on demurrer at the February Term, 1890, of the Superior Court of Buncombe County, before Philips, J. The complaint and demurrer were as follows: The plaintiff, complaining of the defendant, alleges— 1.

The complaint alleged “that defendant is justly indebted to the plaintiff in the sum of eighteen hundred dollars for services performed by the plaintiff for the defendant, as miller in defendant’s mill, and for attending defendant’s fishery, and for services on defendant’s farm, from the 1st day of March, 1881, to the 15th day of November, 1889, at $25 per month,” and a demand and refusal to pay.

, at the Spring Term, 1891. This action is brought to recover possession of the mare specified in the complaint. The pleadings raised issues of fact. On the trial the Court, among other instructions, gave the following to the jury at the request of the plaintiff: “3.

This was a civil action, tried at February Term, 1891, of Madison Superior Court, before Brown, J., upon appeal from a Justice of the Peace.

<p>This was a civil action, tried at November Term, 1889, of Madison Superior Court, by Whitaker, J.</p> <p>The facts are stated in the opinion.</p>

This was a civil ACTION for damages, tried at February Term, 1890, of the Superior Court of MadisoN Count)!, before Philips, J. The defendant company, in constructing its road from Hot Springs to Paint Rock, had used what had previously been the public highway, and, just below Hot Springs, had put in two side-tracks, in addition to the main line, extending some distance down the road. The plaintiff W,.

This was a civil action, tried at the March Term, 1891, of Buncombe Superior Court, before Brovm, J. It appears that William Johnson died in the county of Buncombe on the 20th day of September, 1890, leaving a last will and testament, which was duly proven, and the plaintiff qualified as executor thereof.

<p>Principal — Agent—Payment—Mistake—Negligence—Equity— Knowledge of the Facts.</p> <p>One H., while acting as express agent for M., the regular agent, received, in the course of business, money sent by K. and intended for B. ; and the same was delivered to him, but no receipt was taken and no entry made. Some months after this, B. denied receiving the money, and the amount thereof was, upon demand (the transaction not being remembered), paid by H. and M. to the express company for K., who received it and had it allowed as a credit in his transaction with B. Finding afterwards, as the fact was, the money sent had been duly paid, H. brought this action against M and B. for the payment of the part he contributed to the express company : Held, (1) that he was entitled to recover against B., who was twice • paid what was due him, and could not in good conscience hold both amounts ; (2) this action might have been maintained against B. alone and by either H. or M.; (3) negligence in the transaction does not bar recovery unless some circumstance had arisen which would make it inequitable ; (4) full knowledge of the facts by the plaintiff would not excuse B. for holding money he was not entitled to.</p>

<p>Evidence — Letters of Incorporation — Proof of the Existence of a Corporation — Measure of Damages — Contract.</p> <p>1, Copies of letters of incorporation are admissable to show prima facie the existence of a corporation, and it cannot avoid its liability for debts because in fact it had but an inchoate existence.</p> <p>2, When articles of value were prepared by plaintiffs according to the direction of such corporation, and before the order was countermanded, they are entitled to recover the damages sustained on account of defendant's refusal to receive them.</p> <p>3, The measure of damages is the difference between the contract price and their present valu-1, and if of no value to anyone but the defendant then the measure is the contract price.</p>

This was a civil actioN, heard on exceptions to a referee’s report, at Spring Term, 1891, of Burke Superior Court, before Hoke, J. It appears that Christopher Shuffler died intestate in the county of Burke before the 9th day of August, 1877, and that on that day the plaintiff was duly appointed and qualified as administrator of his estate; that his personal estate was of little value; that the debts against his estate aggregated several hundred dollars; that the plaintiff…

This was a motion, heard before Boylcin, J, at January Term, 1891, of Durham Superior Court. The defendant filed its petition in the action within the time allowed by law, praying that the same be removed to the Circuit Court of the United States in and for the Western District of North Carolina, as allowed by law in appropriate cases.

<p>Civil ACTION, brought by the receiver appointed in a supplementary proceeding, under the order of the Court to have the feme defendant declared a trustee as to some property, and to recover specifically other property, which it was alleged had been purchased with the funds of or on the credit of the male defendant, her husband, and tried at September Term, 1889, of Mecklenburg Superior Court, before Clark, J.</p> <p>In the year 1869 The Rock Island Manufacturing Company became indebted to Coates Brothers in the sum of $24,-806.78, for which said company gave several notes, with the defendant John Wilkes as surety. Judgment was rendered in the Superior Court of Rowan County in favor of Coates Bros, against said John Wilkes, at April Term, 1874, of said Court, and supplementary proceedings were begun on the 7th day of the following September. During the same month Wilkes was examined, after which there was a suspension of active proceedings until he was again ordered before the Clerk and examined in December, 1883. A number of other witnesses were also examined between that time and the 17th of September, 1885, when the plaintiff was appointed receiver.</p> <p>The plaintiff brought this action in the Superior Court of Mecklenburg County. In his complaint he alleges three causes of action—</p> <p>1. That defendant Jane Wilkes unlawfully and fraudulently withholds the possession of the property described in the second section of the complaint, because the plaintiff is receiver and said property is liable to the Coates Bros.’ judgment. The plaintiff demands judgment for possession and damages for detention.</p> <p>2. That the Alexander property was purchased by Jane Wilkes with the money and credit of John Wilkes, by a scheme or plan contrived to defraud the creditors of John Wilkes. The plaintiff demands judgment for a surrender of this property and damages for use and occupation.</p> <p>3. That the Capps Mine is subject to the lien of said judgment, and the title thereof is in John Wilkes individually, or as partner of Jane Wilkes, and that Jane Wilkes claims said property because her money paid therefor. Plaintiff alleges that she had no claim to it, and demands judgment for the possession and damages.</p> <p>The defendants positively deny all allegations of fraud, and aver that the property described in the complaint is the property of Jane Wilkes, and not in any way liable to the payment of the debts of John Wilkes. They further allege that the plaintiff’s cause of action, if he has any, is barred by the statute of limitations. The first two allegations of fraud were treated as one, by agreement of the parties, and are known as the first cause of action, and that relating to the Capps Mine as the second cause of action.</p> <p>It was in evidence that a certain lot in the city of Charlotte, known as the “ Navy Yard ” was sold under execution against the defendant John Wilkes, and bought by R. Y. McAden for the First National Bank of Charlotte, to which Wilkes owed a debt of about $15,000.</p> <p>The brothers and sisters of the feme defendant were residents of the State of New York, where she had a separate estate invested by trustees under marriage settlement. They subscribed or loaned three thousand dollars 'to be used for her benefit by her brother Adolphus Smedburg. He, through Mr. J. H. Wilson, an attorney, effected an arrangement, whereby in consideration of the payment to said bank of the three thousand dollars and the execution by Wilkes and his wife of several notes falling due annually for the remaining $12,000, the said Navy Yard property was conveyed to Mrs. Jane R. Wilkes and immediately reconveyed by her and her husband by mortgage deed to secure the payment of the notes as they should fall due. The equity of redemption was conveyed by Wilkes and wife to Smedburg as a security for the three thousand dollars. The Navy Yard property was subsequently sold at a profit, and out of the proceeds of sale the deeds to the bank and to Smedburg were discharged, leaving a balance in the hands of Mrs. Wilkes, a part of which was subsequently used in making the cash payment for a lot or tract of land in Charlotte, on which are located her dwelling-house and the Mecklenburg Foundry, and a portion of the profits were used for the purchase of machiner3r, etc., used in said foundry. The said lot was sold to her by S. B. Alexander for $9,000. She paid out of her profits $1,000, and she and her husband gave notes for $8,000, the balance of the purchase-money, taking title to herself but immediately joining her husband in a recon-veyance to secure payment of notes for purchase-money. She has not paid all of the purchase-money yet. The foundry has been managed by the defendant John Wilkes for her since the year 1871, and she has realized a handsome profit. lie draws checks and attends to the management; she allows him a support for himself and family out of the profits of the business.</p> <p>The plaintiff offered circumstantial testimony tending to show that the purchase was made in the name of the wife, but.really for the benefit of her husband, in order that it might be protected from the husband’s creditors. The depositions of one of the plaintiffs, and' that of one Prank W. Hall, were read in evidence, both deposing that John Wilkes told them that he conducted the business in his wife’s name to save himself from annoyance by his creditors.</p> <p>John Wilkes, McAden, Alexander and others testified to circumstances tending to show that the purchase and sale of the Navy Yard, and the subsequent purchase from Alexander, were made in good faith for the feme defendant.</p> <p>It was in evidence for the plaintiffs that, after the defendant John Wilkes had expended many thousands of dollars for an interest in the Capps Gold Mine, including the land and valuable machinery erected thereon, his interest was sold at execution sale to satisfy an execution issued on a judgment in favor of one J. C. Burroughs, and bought by the feme defendant for five dollars. Burroughs also testified that, after the sale, the whole of his judgment was paid.</p> <p>John Wilkes testified that he had been permitted by his wife to pay off a number of old debts which he owed. He denied making the alleged statement to the plaintiff Coates, or the witness Hall. He testified also that more than $8,000 of his wife’s separate funds, held by trustees for her, had been invested in the machinery, etc., at the foundry. Pie further testified that he had made no arrangement, either with the bank, McAden, or the Sheriff, in reference to the sale or purchase of the Navy Yard property, and also to the good faith of the parties in the purchase of the Capps Mine.</p> <p>One of many circumstances offered for plaintiffs was the fact that for nine years the business of Mecklenburg Foundry was advertised in the name of “John Wilkes, proprietor.”</p> <p>The following issues were submitted, without objection:</p> <p>1. Was there any arrangement, agreement or understanding between the defendants John Wilkes or Jane Wilkes and the First National Bank of Charlotte by which the property conveyed to the bank by the Sheriff under the execution sale of May 23, 1870, was thereupon conveyed to defendant Jane R. Wilkes, for the purpose of preserving the property and business of John Wilkes and hindering, delaying or defrauding his creditors? Ans.: No.</p> <p>2. Was the property conveyed to Mrs. Wilkes by the bank for $15,000 paid for out of the proceeds of sale thereof to Matthews in whole or in part, and if in part, how much of said proceeds were so used? Ans.: In part, $12,000 and interest.</p> <p>3. Were the lots conveyed to the defendant Jane R. Wilkes by S. B. Alexander, trustee, and the machinery, tools and appliances made for and used in the foundry and shops purchased with the money and credit of John Wilkes, and was the title to said lots procured to be made to his wife for the purpose of defrauding his creditors of their just debts, and especially Coates Brothers? Ans.: No.</p> <p>4. Is the plaintiff in this action entitled to the possession of the property known as the Capps Mine or any interest therein asathe property of John Wilkes, defendant? Ans.: No.</p> <p>5. Is the plaintiff’s first cause of action barred by the statute of limitations? Ans.: Yes.</p> <p>6. Is the plaintiff’s second cause of action barred by the statute of limitations ? Ans.: No.</p> <p>The plaintiff requested the Court to instruct the jury—</p> <p>1. That if the property in dispute was purchased from Alexander for the consideration of $9,000, one thousand dollars in cash, and the balance upon credit, for the payment of which Wilkes and wife executed their notes and mortgage upon the same for the payment of the notes, as set forth in the mortgage, and only $1,000 has since been paid thereon, and there is still due of the purchase-money over eight thousand dollars, then the consideration of the contract of purchase did not move from Mrs. Wilkes, she has acquired no sole and separate interest therein as to the unpaid purchase-money, and the property is subject to the claims of the creditors of the husband, encumbered by the amount of the purchase-money yet due. This instruction was refused.</p> <p>2. The defendants, both, in their answer to paragraph six (of answer) having admitted and averred that they invested the surplus after paying off the bank debt in the purchase of the Alexander property, now occupied by them as the Mecklenburg Iron Works, cannot be permitted to prove the contrary, and issue third must be found for the plaintiff. The Court refused to give this instruction.</p> <p>3. That even according to the evidence of Mr. Wilkes on the trial a part of said surplus did go in part payment of the purchase-money of said property. The Court gave this instruction.</p> <p>4. That according to the evidence of Mr. Wilkes he was the agent of Mrs. Wilkes, and gave the operations of the Iron Works his exclusive attention and labors and large accumulations resulted therefrom, which were applied in enlarging the buildings, increasing the machinery and plant, supporting the household to the extent of $5,000 per annum and adding to the value of the Iron Works to the amount of $35,000; such accumulations did not become the separate property of the feme defendant, but enured to the benefit of John Wilkes, and the third issue must be found for the plaintiff. The Court refused to give this instruction.</p> <p>5. That if any of the earnings of John Wilkes went to pay for the property conveyed to Mrs. Wilkes by Alexander, they will find for the plaintiff on issue-three [to the extent of said earnings.] Given by the Court as modified in brackets.</p> <p>6. That if any residue or balance arising out of the sale by Mrs. Wilkes and the Smedburgs to Matthews went to pay any part of the purchase-money to Alexander they will find for the plaintiff on issue three. The Court refused to give this instruction.</p> <p>7. That a separate estate in a married woman must be proved by the instrument making it, and that there is no evidence here of any separate estate belonging to Mrs. Wilkes, defendant, sufficient to have a credit upon in the purchase of lauds, and no evidence has been adduced showing that an3r charge ^ upon such estate, if it existed, could attach to the transactions set up in the answer. The Court refused to give this instruction.</p> <p>8. “A badge of fraud is a fact or circumstance calculated to throw suspicion on a transaction and requiring explanation.” This instruction was given. If, therefore, there are any circumstances connected with the sale of the Navy Yard property on May 23, 1870, calculated to throw suspicion on that transaction and which circumstances, have not been satisfactorily explained by the defendants, the jury should answer the first issue Yes. The Court refused to give this instruction.</p> <p>9. Fraud may be inferred from facts and circumstances tending to establish it, and less proof is required to establish fraud between husband and wife than between strangers. This instruction was given.</p> <p>10. That stronger proof is required of parties claiming the benefit of transactions between husband and wife than from parties claiming benefits of transactions between strangers. This instruction was given.</p> <p>11. The presumption is that the wife purchased with funds of the husband. Refused. Transfer of property from the husband to the wife is regarded with suspicion. Given.</p> <p>12. Conversations of parties charged with fraud are admitted to prove the fraud. If there was any arrangement between the bank on the one hand, and either of the defendants, or any one of them, on the other, that the property should be bid in by the bank and conveyed to Mrs. Wilkes, the answer to the first issue should be Yes. Given.</p> <p>13. If Wilkes has devoted his industry, his knowledge of the business, his skill in its management, his name and credit to the accumulation of property to be held by his wife for the use of himself and family, to the exclusion of his creditors, the jury ought to answer issue third Yes. [But not if he was merely acting bona fide as agent for his wife]. Given as modified, modification shown in brackets.</p> <p>] 4. To make the execution sale fraudulent, it is not neces--sary that the Sheriff should be a party to the agreement that the property shall (should) be bid in or held for the benefit of the judgment debtor. Dobson v. Erwin, 1 Dev. & Bat., 569. Given.</p> <p>15. If there was any arrangement between the bank and either John or Jane Wilkes to bring about the sale under execution so as to divest John Wilkes of the title and vest it in Mrs. Wilkes, and the effect of the transaction was to hinder and delajr creditors, the law will regard such transactions fraudulent, though it may have been the intent of the parties to so hinder, delay, etc. Given as a supplement to prayer No. 1 of defendants.</p> <p>DEPENDANTS’ PRAYERS FOR INSTRUCTIONS.</p> <p>1. As a general rule (amendment), in order to find that any of the transactions which are alleged to have been fraudulent were fraudulent as to the creditors of the defendant John Wilkes, the jury must first be satisfied by a preponderance of the evidence that the transactions were not only such as, in their effect, might delay or hinder creditors, but that they were conceived and carried on with the actual intent to hinder, delay and defraud creditors [subject, however, to the proviso, that if it was a combination and arrangement to do that act, etc.]. Given as amended, amendments in brackets.</p> <p>2. That the jury, in order to find that any of said transactions were fraudulent, must also find that Jane R. Wilkes participated in said intent and purpose [or bought with notice thereof, either in person or through her husband, acting for her]. Given as amended in brackets.</p> <p>3. That if the creditors, Coates Bros., discovered the alleged fraud more than three years prior to the commencement of this action, the first cause of action is barred by the statute of limitations. Given.</p> <p>4. That if more than three jrears prior to the commencement of this action they had knowledge of facts and circumstances calculated to put a prudent man on inquiry, which if prosecuted would have disclosed the alleged fraud, then the law presumes a discovery of the alleged fraud at said time, and the first cause of action would be barred. Given.</p> <p>5. That if said discovery was made more than ten years before this action was commenced, the first cause of action is barred. Given.</p> <p>6. Repeat the fourth prayer as to the' ten-year limitation. Given.</p> <p>7. That if the jury should find that any ©f the personal property, estate or credit of John Wilkes was invested in the property described in the first cause of action, yet, if after said investment, more than three years elapsed before the commencement of this action, plaintiff is barred. Refused.</p> <p>8. That if more than ten years elapsed under the facts and circumstances detailed in the seventh prayer, the plaintiff is barred. Refused.</p> <p>9. That if the jury believe the evidence, the plaintiff’s second cause of action is barred by the statute of limitations. Refused.</p> <p>10. That if more than ten years elapsed after Coates Bros, obtained their judgment, and before this action was commenced, the plaintiff’s first cause of action is barred by the statute of limitations. Given.</p> <p>11. That if more than ten years elapsed after Coates Bros, obtained their judgment, and before this action was commenced, the plaintiff’s second cause of action is barred by the statute of limitations. Refused.</p> <p>The Court, in addition to special instructions given, charged the jurj', in substance, as follows:</p> <p>“ It is the duty of the jury to weigh the testimony, etc., to remember if the Court omits or mis-recites any. The Court expresses no opinion on the facts, and the jury are not to draw any conclusions against the plaintiff by reason of the stoppage of the case against the defendant, nor against the defendant for requiring it to go on.</p> <p>“ The jury are not to consider that argument of counsel as to the effect of verdict on the present condition of the Meck-lenburg Iron Works. The Court did not stop counsel in that argument, but now cautions the jury that they are not to consider that, nor the effect of their verdict upon anyone, but only to find the truth of the facts submitted to them on the issues.</p> <p>“ On the first issue the plaintiff claims that the sale of the foundry property on the 23d of May, 1870, was fraudulent, and as grounds for this contention offers evidence that sale was Ipostponed from May 7th to May 23d; no readvertisement of property was made. John Wilkes was insolvent. The bank sold to his wife and took mortgage back.</p> <p>“ The books of the foundry went on without change.</p> <p>“The admission of John Wilkes to Coates and to Hall that he had put the property in his wife’s name, etc., as testified by them. On the hand, the defendants say the postponement of the sale to-the 20th of May was from inadvertence, and they don’t know whether re-advertised or not. They admit that Wilkes was insolvent, but deny, on the testimony of McAden and Wilkes himself, that there was any arrangement by which the property was to be sold to Mrs. Wilkes and a mortgage taken back for the purchase-money; that the sale was made in good faith, and not for the purpose of defrauding creditors, and refer to the fact that afterwards the plaintiff’s claim became barred by the statute of limitations and Wilkes renewed the debt by written acknowledgment.</p> <p>“ When the purchaser of the husband’s property is his wife, the law looks through all disguises, and if the jury find on going to the bottom of the matter that it was an arrangement, no matter how arranged, they should answer the first issue Yes; otherwise, No. The burden is on the plaintiff to show such arrangement by preponderance, etc.</p> <p>“ The plaintiff claims on the second issue that the property conveyed to Mrs. Wilkes. by the bank for $15,000 was paid for entirely out of the proceeds of the sale to Matthews; on the other hand, the defendants say that only $12,000 of the purchase-money and interest was paid out of the proceeds of that sale.</p> <p>“On this point it is the duty of the jury to sift and weigh the testimony, and say whether in whole or in part, and if in part, how much of said proceeds were so used.”</p> <p>On third issue same charge was submitted substantially as on the first issue, except that the evidence raised a presumption of fraud in the purchase.</p> <p>On fourth issue: “ If the property known as the Capps Mine was bought by Mrs. Wilkes by an arrangement, contrivance, etc., and $13,000 worth of property was bought for $5, the sale would be fraudulent — the jury are to consider it in his wife, etc. — but if the sale was bona fide, and if it was not with consent of husband, etc., it is a good sale.</p> <p>“ The law views with suspicion the dealings of husband and wife, and the gross inadequacy of price, if bought with Wilkes’ money, or by any contrivance, or if sold with intent to hinder and delay his creditors, and Mrs. Wilkes participated in such intent, or had notice of it, the sale was fraudulent, and you will answer the fourth issue Yes; otherwise, No.”</p> <p>The plaintiff excepted to the Court’s refusal to instruct the jury as requested by plaintiff, and to his instructing them as requested by defendant, and to the charge as given.</p> <p>In the trial of the cause all that part of the complaint which spoke of the Mecklenburg Iron Works was, by consent, treated as the plaintiff’s first cause of action, and all that part relating to the Capps Mine as a second cause of action.</p> <p>After verdict, plaintiff moved for judgment, notwithstanding the verdict, upon the grounds—</p> <p>1. That the evidence as to the sale of the Capps Mine property under execution to JaneR. Wilkes was sufficient to raise a presumption of fraud, and that there was no evidence in the case to rebut such presumption.</p> <p>2: That the evidence showed clearly that the defendant John Wilkes had at least an interest in all the property in controversy, by reason of his services and skill in operating the foundry and shops, from the earnings of which all the money which had gone to pay for the said property had been derived, and that his creditors were entitled to the benefit thereof upon a proper accounting.</p> <p>3. That the evidence showed that the Mecklenburg Iron Works, as well as the old Navy Yard property, had been bought by' Mrs. Wilkes largely on credit, ¿nd that, being a married woman and not a free trader at the time of such purchase, there being no evidence that the purchase was made on the faith of her separate estate, or that her separate property was charged therewith, such purchase enured to the benefit of her husband’s creditors.</p> <p>This motion was refused, and the plaintiff excepted.</p> <p>Plaintiff then moved for a new trial upon the same grounds as set out in the motion for a judgment notwithstanding the verdict, and upon the additional grounds—</p> <p>1. That the Court intimated an opinion that the plaintiff had failed to make out a case when he rested.</p> <p>2. Because of the Court’s language to the jury when the jury announced that they could not agree.</p> <p>3. For failure to give the instructions ashed for by the plaintiff, and for improper instructions given at request of counsel for defendants, and for error in the charge.</p> <p>The motion was refused, and the plaintiff excepted.</p> <p>There was judgment for defendants, from which plaintiff appealed.</p>

Civil action, tried at Fall Term, 1890, of the Superior Court of CLEVELAND County, before Brown, J. The plaintiffs contracted in writing with the defendants to construct for the latter a bridge across First Broad River in the county of Cleveland, and the latter stipulated and promised to pay the former for the same the actual cost of the the bridge; the price was not otherwise specified.

This was a civil action, tried before Graves, J., at April Term, 1890, of the Superior Court of New Hanover County. The parties waived a jury trial, and agreed upon the following facts, upon which the Court rendered judgment for defendant, as set out in the record: The following facts are admitted: That title is out of the State, and plaintiffs claim under the deed made by Bryant Williams on the 25th day of April, 1863, to R. B. Wood, trustee.

<p>Petition of defendant to rehear.</p>

<p>Ejectment — Title in Third Persons — Possession—Tenant—Case on Appeal — Sheriff’s Deeds Void — Insanity — Judgment— Execution — Irregularities.</p> <p>1. A defendant in an action of ejectment need not connect himself with an outstanding title in third persons, except in cases where both parties claim from the same source; and not even is exception made in this case where the plaintiff has been divested of such title.</p> <p>2. When a defendant in ejectment has entered possession as plaintiff’s tenant, he may resist recovery by showing that plaintiff has been divested of the title, and still more has he this privilege where no such relation exists.</p> <p>3. When the case states that the defendant offered no testimony identifying the land, but does not purport to set out the testimony in full, and the ruling of the Court seems to assume its existence, this Court cannot say that it does not exist.</p> <p>■ 4. A deed of a Sheriff is not void because the defendant in execution was insane at the time of the judgment'and sale thereunder — it is only voidable.</p> <p>5. The purchaser at a sale under execution gets a good title, though the judgment upon which the execution was issued is subsequently set aside for irregularity therein: and the same principle applies to irregularity in the execution. Such irregularities cannot be questioned in an action against such purchaser, unless the plaintiff is purchaser under his own judgment.</p>

This was a civil action, tried at the November Term, 1890. of Granville Superior Court, before MacRae, J. A jury trial was waived by consent, and the facts were found by the Court. This action was for the recovery of money had and received (as alleged) by the defendant to the use of the plaintiffs.

The undersigned, parties to a question in difference which might be the subject of a civil action, agree upon the following statement of facts upon which the controversy depends, and submit the same to the Judge of the Superior Court of Wake County, which would have jurisdiction if an action had been brought: 1. The plaintiff is a citizen of North Carolina, residing in Chowan County, and the defendant is the Secretary of State of North Carolina. 2.

This was an indictment for a misdemeanor, tried before Womack, J., at Fall. Term, 1890, of the Superior Court of Greene County. B. W. Taylor, for the State, testified: “ I bought liquor from defendant at his bar March, 1890.” The witness was asked, “ITow old are you reputed to be in your family?” Objected to by defendant. Objection overruled, and witness answered, “ I was nineteen years old last August.” Defendant excepted. Witness further testified, “ I am not married.

MotioN to quash indictment, heard at January Term, 1891, of Robeson Superior Court, Armfield, J., presiding. The defendant is charged with the offence oí false pretence, in 'violation of the statute {The Code, § 1025).

<p>CRIMINAL ACTION, heard upon appeal from a Justice of the Peace at Fall Term, 1890, of Onslow Superior Court, Arm-field, J., presiding.</p> <p>The defendant was charged criminally before the Mayor of the town of Richlands, in the county of Onslow, with the violation of an ordinance of that town, and convicted. Pie appealed to the Superior Court. In that Court, upon motion of the Solicitor for the State, the State warrant was allowed to be amended; “ the appeal was withdrawn,” and “ by agreement” the case was remanded to the Mayor for trial. After-wards, upon application of defendant, the Mayor transferred the case to a Justice of the Peace to be tried before him. The defendant demanded a jury trial, wrhich was had. There was a verdict of guilty, and thereupon the defendant moved in arrest of judgment. The motion was overruled, and judgment was given against the defendant, and he appealed to the Superior Court. In that Court the Solicitor “ insisted that the defendant, by asking at Spring Term, 1890, that the case be remanded to be settled by the lower Court, and by order of the Court to that effect, had lost his right to a further appeal.” The defendant thereupon said that 11 he only asked to be heard in this (the Superior) Court on his motion in arrest of judgment.” The Court refused to hear that motion, and granted the motion of' the Solicitor to “ amend the warrant so as to recite the town ordinance on which it is based, and otherwise conform it to the facts found on the trial.” The defendant objected, and excepted. It seems the amendments were made, but they do not appear in the transcript of the record. The Court overruled the motion in arrest of judgment, gave judgment against the defendant, and he appealed to this Court.</p>

<p>INDICTMENT for unlawfully seizing and appropriating crops, tried at Fall Term, 1890, of the Superior Court of MONTGOMERY County, Bynum, J, presiding.</p> <p>The jury found the following special verdict:</p> <p>“That in February, 1889, one S. T. Usher rented from the defendants in the county of Montgomery, the turpentine boxes on certain land belonging to the defendants in said county for the ensuing turpentine season; that the turpentine season ordinarily begins in the month of March and lasts until the following March; that said Usher in the month of September following paid to the defendants the rent he contracted to pay, it being a monied rent; that in December, 1889, defendants rented the land and the turpentine boxes for the year 1890 to another man ; that prior to the 1st day of January, 1890, the said Usher had not taken from the boxes all of the turpentine of the running of the season of 1889; that on the 14th day of January, 1890, the said Usher sent his hands to take from the said boxes the said turpentine and the hands were forbidden by defendants from taking the same, and in consequence of said forbidding they did not take the same; that there were about four barrels of turpentine left in the boxes of the crop of 1889 which had been produced by the labor of said Usher and his employees; that said Usher never did get the said turpentine in consequence of the forbidding of his hands by defendants to gather the same; that said Usher was not indebted to defendants or either of them for any advances made to him; that defendants did not get the turpentine, but that it was gathered by their tenant for the year 1890, the defendants received their rent from him.”</p> <p>Upon the special finding of facts by the jury, the Court being of the opinion that the defendants were not guilty so adjudged, and ordered a verdict of not guilty to be entered and gave judgment discharging the defendants; from which judgment, the Solicitor for the State prayed an appeal.</p>

<p>IkdictMent, tried at Fall Term, 1890, of Cabarrus Superior Court, before Bynum, J.</p> <p>The defendants were found guilty. There was a motion in arrest of judgment on the following grounds:.</p> <p>“ First. It appeared that the offence was committed in May, 1889, and the indictment was found at Fall Term, 1889, and the Superior Court did not have jurisdiction of the offence when the bill was found, or when judgment was to be pronounced.</p> <p>“ Secondly. That there were Iwo statutes in reference to the same offence — section 1062 of The Code, and the Act of 1889, ch. 516 — -and the one of subsequent date changes the punishment of the same, and the indictment dees not by proper-averment refer to the statute under which it was found, so that the Court can see the measure of punishment to be inflicted.”</p> <p>Motion in arrest allowed, and the Court gave judgment discharging the defendants, and the State appealed.</p>

INDICTMENT, tried at Spring Term, 1891, of Rowan Superior Court, Bynum, J., presiding. The indictment charges that the defendant made an assault upon the prosecutrix “ with a certain deadly weapon, to-wit, a club of the length of three feet and one inch in diameter,” etc. He pleaded not guilty.

Bastaeuy prockbdiNG, tried before Bynum, J., at February Term, 1891, of Forsyth Superior Court upon an appeal from a Justice’s Court. The State introduced the affidavit of the woman upon which the warrant had been issued, and rested its case.

<p>Appeal from StaNLy Superior Court, Fall Term, 1890, Bynum, J., presiding.</p>

INDICTMENT for disturbing a religious congregation, tried before Bynum, J., at March Term, 1891, of Wilkes Superior Court. Held: and the verdict and judgment were accordingly entered. Appeal by the State.

<p>Appeal from Catawba Superior Court, Pall Term, 1890, Armfield, J., presiding.</p> <p>The defendant, and a feme defendant, who did not appeal, were indicted for the offence of fornication and adultery, and pleaded not guilty. There was a trial and verdict of guilty, and judgment thereon, from which the male defendant appealed to this Court.</p>

, presiding. The defendant and one Freeman were indicted at Fall Term, 1889, for forgery of the following paper-writing: “Mr. Miller, pleas send me 3 gals, whiskey I will send you money. Dolph Shaven. Dec. the 24h 1888.” There were two counts in the bill of indictment, the first charging the forgery with intent to defraud Miller, and the second with intent to defraud Shaver. At Spring Term, 1890, the defendants were put upon their trial.

<p>This an appeal from August Term, 1890, of Mecklen-burg Criminal Court, Meares, J., presiding.</p> <p>The indictment was found in Union County, and removed for trial.</p> <p>The facts are sufficiently stated in the opinion.</p>

INDICTMENT for retailing spirituous liquors without license, tried before Moore, J, at January Term, 1891, of Buncombe Criminal Court.

<p>Motion of the Attorney General to dismiss the appeal.</p>

<p>Homicide— Circumstantial Evidence— Corroboration — Identity — Prayers for Instruction— Charge — Jury—Exceptions— Remarks of Doubtful Propriety by the Court.</p> <p>1. The manner and conduct of the defendant an hour after the homicide for which he was indicted is admissible in evidence, and, taken with other circumstances, may have serious import in establishing his guilt.</p> <p>2. Where there was evidence tending to show that the wound by which the deceased came to his death was inflicted by a coupling-pin ; that a man, like the prisoner, had been seen the night of the homicide to drop out of his pocket a piece of iron about the length of a coupling-pin, which he wrapped in a white cloth, and that something like iron-rust was afterwards found upon a handkerchief in his pocket: Held, testimony that the coupling-pin was found near the house where the prisoner boarded was admissible.</p> <p>3. One witness may be allowed, for purposes of corroboration, to testify that another identified a coat whose identity was in question, without first asking him who identified it if he did so.</p> <p>4. A substantial compliance with prayers for instruction is no ground for exception.</p> <p>5. It is no ground for exception that the Court stated that “ there was no evidence to contradict the State’s witnesses ” where there was none, and then immediately qualified this by the further statement that questions of contradiction among the witnesses must be determined by the jury.</p> <p>6. Exceptions too general will not be comidered by this Court.</p> <p>7. Remarks by the Court of doubtful propriety are not ground for exception where it appears they did no harm to the prisoner.</p>

Defendant was tried and convicted at the October Term, 1890, of Mecklenburg Criminal Court, by Meares, J., upon a warrant on appeal from a Magistrate’s Court, under Acts 1885, ch. 134, known as the “ Mecklenburg Road Law.” The warrant charges: “ That W. B. Baker, late of the township of Crab Orchard, county of Mecklenburg, State of North Carolina, on the 31st day of July, 1889, and 1st day of August, 1889, and for three days prior thereto, the said W. B. Baker had been duly…