Volume 109 — North Carolina Reports

Civil Action, originally instituted before a Justice of the Peace, and brought by appeal to the Superior Court of Beaufort County, where it was tried at the May Term, 1890, before Whitaker, J. The return of the officer, upon the summons, was as follows : “Received March 24th, 1890; served March 24th, 1890, by reading the within summons to A. Fisher.

This was a MotioN by plaintiff to set aside an award, heard at Spring Term, 1891, of PerquimaNS Superior Court, Bryan, J., presiding. The motion was denied, and plaintiff appealed.

Civil action, tried at Spring Term, 1891, of Pasquotank Superior Court, Bryan, J., presiding. The plaintiffs sued to recover the sum of five hundred dollars, alleged to be due them as attorneys at law for professional services. There was judgment by default for want of an answer, and upon the inquiry as to the amount due them the questions presented for review arose. There was judgment for plaintiffs, from which the defendants appealed.

<p>Attachment — Mortgage—Domicile—County—Records and Judgments in other States — Contract.</p> <p>M., being indebted to plaintiffs, conveyed to them certain personal property, then in North Carolina, by deed of mortgage, -which was duly proven and registered in the proper county; M. retained possession of the property and carried it, in the prosecution of his business, into the State of Virginia, where — he being a non-resident of that State — it was seized under attachment at the suit of his creditors, and under judgments rendered in the Courts of defendants, Virginia, was sold and the proceeds applied to their saiisfaction. The mortgage was not registered in Virginia, and it appeared that, by the laws of that State, mortgages of personal property are void against creditors except from the date of their registration: Held,</p> <p>1. That the plaintiffs were entitled to recover from the defendants the value of the property included in the mortgage, which they had caused to be seized and sold under their attachments.</p> <p>2. Attachment is not, strictly speaking, a proceeding in rem, and a judgment therein is only conclusive upon the parties to it, and those in privity with them.</p>

This was an action to recover damages for an alleged trespass on land, and cutting and taking timber therefrom, tried at Spring Term, 1891, of WASHINGTON Superior Court, Bryan, J., presiding. The defendant denied the allegations of the complaint, and claimed that it was the owner in fee of the land upon which the trespass is alleged to have been committed. There was a verdict and judgment for the plaintiff, and the defendant appealed.

<p>Injun ction— Municipal Ordinance.</p> <p>An injunction will not be granted to pievent the enforcement of an alleged unlawful municipal ordinance; nor can an action be maintained which only seeks to have soch ordinance adjudged void.</p>

<p>Trusts and Trustees — Release—Subrogation—Betterments— Improvements.</p> <p>Plaintiffs conveyed to T. a tract of land, and to secure payment of the purchase-money T. conveyed the same land to a third person, and both deeds were duly registered; subsequently the defendant purchased a portion of the land from T. with notice of the trust, paid the purchase-money therefor to the trustee, who paid it to plaintiffs, who did not know that it arose from a sale of the land, and thereupon, without the knowledge of plaintiffs, the trustee, on the margin of the registry of the deed in trust wrote an instrument, not under seal, purporting to release that portion of the land purchased by defendant: Held,</p> <p>1. That even if the attempted release had been under seal it would have been, ineffectual, as the statute authorizing such mode of release confers no power upon a trustee to release specific parts of the property conveyed, and especially where the secured debt remained unsatisfied.</p> <p>2. The defendant was entitled to have the money paid by him repaid, and a lien established upon the land for that purpose.</p> <p>S. While the defendant was not entitled to recover betterments, upon an inquiry of the amount of damages for the use and detention of the lands to which plaintiffs were entitled, it was competent for him to show the value of the improvements of a permanent character, of which plaintiffs would have actual benefit.</p>

MOTION to set aside a judgment, heard at Spring Term, 1891, of Hertford Superior Court, Bryan, J., presiding. • This is a motion in a special proceeding to set aside, for alleged irregularity and fraud, the orders directing a sale of the land, therein specified, to make assets to pay debts of a testator, the proceeding having been determined before the motion was made. The Court heard the motion and gave judgment setting the orders complained of aside.

Civil action, tried at February Term, 1891, of Beaufort Superior Court, Bryan, J., presiding. The following is so much of the case settled on appeal as need be reported: Plaintiffs offered a deed from W. Ii. Cunninggim and wife to W. IP. Peterson, dated July 12, 1891, and recorded in Register’s office of Beaufort County. This deed was received by the Register at 10 a. m., on July 27th, 1889, and recorded July 29th, 1889, and conveys locus in quo.

<p>This was an Action of claim and delivery to recover “ one certain lot of com, in the barn on the Bell farm,” of the alleged value of forty-five dollars, originally commenced before a Justice of the Peace, in the county of Beaufort, and carried by appeal to the Superior Court of that county, and tried before Bryan, J., at the February, Term, 1891.</p> <p>The affidavit required in the application for the delivery of the possession of the corn is signed as follows: “ J. M. Spencer, per D. M. Spencer. Sworn before me, this first day of February, 1889. W. D. Saddler, J. P.”</p> <p>In the transcript of the Justice of the Peace it is stated “the plaintiff appeared by his agent, D. M. Spencer.”</p> <p>There is what purports to be an undertaking of the plaintiff for delivery of property as required by § 324 of The Code, with two sureties, but it is not signed by either the plaintiff or the sureties, but there is a justification, signed by each surety, in which he makes .oath that he “is worth over and above his liabilities and his property exempted by law the sum of $-”</p> <p>In the Superior Court, before the trial, defendants moved to dismiss the claim and delivery proceedings upon the following grounds: Because the affidavit purported to have been made by plaintiff J. M. Spencer, “ per D. M. Spencer.” Second. Because the plaintiff gave no bond before the issuing of the order to seize the property as required by law. Motion denied, and defendants excepted.</p> <p>The plaintiff moved, and the Court granted him leave, to amend his summons so as to demand therein a certain lot of com, of the value of forty-five dollars, for advances. On the trial, plaintiff claimed the possession of a certain lot of corn cultivated by and in the possession of defendant Bell, by reason of certain advances made to him by plaintiff as landlord. Defendant Bishop claimed the corn in controversy as mortgagee of Bell. The issues hereinafter recited were framed by the Judge without objection by defendants. Defendant Bell denied that plaintiff was his landlord, or made any advances to him for the year 1888, in which year the corn was cultivated.</p> <p>The plaintiff testified : “I rented the land to Bell in 1888, the year in which the corn was cultivated. Defendant Bell gave me a mortgage, in 1887, upon his crop of 1888, which mortgage was not paid in full; in the first part of 1888 defendant Bell told me he could not pay the mortgage of 1887 and have enough to farm on in 1888. Defendant Bishop had a second mortgage on his crop of 1887. Defendant Bell told me if both Bishop and myself closed down on him and took bis corn he could not farm that year, but if we did not he c >uld do so. I told him, as far as I was concerned, I would advance balance he owed me on next crop if defendant Bishop would agree not to shove him and take what he had. Afterwards we saw Bishop, and he agreed to indulge his mortgage also.”</p> <p>Plaintiff claimed balance due upon this mortgage as advances to cultivate the crop of 1888, which balance was admitted to be $17 74 by the plaintiff. Plaintiff further claimed as advances certain sacks sold to defendant Bell, valued at $2.22, and also the use of a cart, valued at $1; all other claims of the plaintiff were abandoned.</p> <p>The defendants denied all the above testimony.</p> <p>The evidence as to the value of the corn in controversy was that of defendant Bell, who testified that it was worth $15, and of defendant Bishop,-who testified: “I got the money for the corn; I got $50 out of the corn; I do not know how much there was.”</p> <p>The defendants reques'ed the Judge to charge the jury, “ that if the jury believed the testimony of defendant Bell, they will find the value of the property to be $55, and answer the second issue accordingly.” Refused. Defendants excepted.</p> <p>The jury responded to the issues as follows:</p> <p>1st. Is the plaintiff the owner and entitled to the possession of the corn mentioned in the affidavit? Answer. Yes.</p> <p>2d. What is the value of the said corn? Answer. Fifty dollars.</p> <p>The defendants moved for a new trial, and assigned the following grounds of error:</p> <p>1. For that the Court refused to dismiss the claim and delivery proceedings as hereinbefore set forth.</p> <p>2. For that the Court refused to instruct the jury as prayed by defendants.</p> <p>3. For that the issues were not complete, and no judgment could be rendered thereon, in that the plaintiff claimed a lien upon the crop in controversy by reason of advances as landlord, and the amount of indebtedness due by defendant Bell to plaintiff for such advances was not ascertained.</p>

<p>Penalty — County Commissioners — Officer—Official Bonds— Sheriffs — County Treasurer.</p> <p>1. The statutes — The Code §§ 1875 and 2070 — requiring the officers therein designated to renew annually their official bonds, and that Sheriffs shall, in addition, produce receipts for the public moneys collected by them, and in default thereof it shall he the duty of the Board of County Commissioners to declare the office vacant-, are intended to effectuate the same pujóse, and therefore a member of the Board of County Commissioners is liable for only one penalty for failure to perform his duty in that connection.</p> <p>2. It is nob the imperative duty of the Board of County Commissioners to institute suits against a delinquent officer for failure to account and pay over public moneys. Under § 775, The Code, they may do so, but the County Treasurer is regularly the proper officer to bring such action; and in an action against a Commissioner for failure to perform his duty in that respect, it is necessary to allege and prove that the Commissioners negligently failed or wilfully refused to exercise their authority.</p>

This is a civil ACTION, which was tried upon the pleadings — substantially the same as those in Bray v. Barnard, ante 44 — at Pall Term, 1891, of Currituck Superior Court, Brown, X, presiding. The portions of the complaint referred to in the opinion are as follows: “5.

Proceeding to recover compensation for lands appropriated by a railroad company, tried at Spring Term, 1891, of Bertie Superior Court, Connor, J., presiding. The Roanoke and Tar River Railroad Company was incorporated by ch. 218, Laws of 1885.

Civil actioN, tried at February Term, 1891, of Graver Superior Court, Connor, J., presiding. The plaintiffs claim title, and seek to recover possession of the land in the county of Craven, known as James City. The original summons was issued on the 4th day of October, 1880. On the 21st day of September, 1881, and on the 9th day of September, 1889, other summonses issued, bringing into the Court other defendants.

<p>Issues — Jury—Judge’s Charge — Trial.</p> <p>1. Under the practice now prevailing, the jury, in civil actions, does not find a general verdict, but responds to specific issue's eliminated from the pleadings, and, hence, it is not erroneous to deny a prayer for an instruction that, upon the. evidence, a party is not entitled to recover.</p> <p>2. Where the issues submitted to the jury are confused and calculated to mislead the jury, a new trial will be directed.</p>

Civil ACTION, tried before Connor, J, at the Spring Term, 1891, of the Superior Court of NORTHAMPTON County.

This is a civil ACTION, tried before Connor, J., at Spring Term, 1891, of Northampton Superior Court. In a special proceeding, specified in the complaint in this action, it appears, by the return of the summons in that proceeding, that the same was duly served upon the defendants therein named; whereas, in fact, as the plaintiffs allege, that summons never was served.

This was a summary proceeding to eject defendant, brought before a Justice of the Peace, and tried on appeal at the Spring Term, 1891, of the Superior Court of Northampton County, before Connor, J. The defendant failed to appear before the Justice of the Peace, but appealed and filed, by leave of the Court, his answer in the Superior Court.

This is a MOTION to reinstate an appeal from the Superior Court of Vance County, which had been dismissed for failure to print the record as required by Rules 28-30.

<p>This was a civil action, tried at April Term, 1891, of New Hanover Superior Court, before Mclver, J.</p> <p>The plaintiff introduced evidence tending to show the execution and loss of the deed of marriage settlement set up in the pleadings.</p> <p>It was admitted that the contemplated marriage took place between the said Sally J. Freeman and James Moore; that she thereafter died intestate and without issue, leaving her said husband, James Moore, surviving; that after the death of his said wife the said James Moore died intestate, and that the plaintiff is his only heir at law.</p> <p>Plaintiff then contended that, upon an inspection of the deed of marriage settlement, it sufficiently appeared upon the face thereof that it was manifestly the intention of all parties thereto to give an estate in fee-simple to the said James Moore in the event of his surviving his wife Sally J. Freeman, and she dying intestate and without issue; but by the mistake, inadvertence or oversight of the draughtsman of said deed, the words “and his heirs” were left out next after the words “shall become the property of the said James Moore,” in the said deed, and prayed the Courts to reform and correct the said deed accordingly by supplying the necessary words.</p> <p>Upon the close of the plaintiff’s evidence, the defendants demurred to the evidence, and the plaintiff joined in the demurrer, and, after argument by counsel, the Court gave judgment for defendants, from which plaintiff appealed.</p> <p>Plaintiff excepted to the refusal of the Court to hold with the plaintiff and to reform the said deed as prayed, and appealed from so much of said judgment as holds “that there is no sufficient evidence before the Court to show that the word “ heirs ” was left out of the same (meaning deed of marriage settlement) by mistake or inadvertence, as is alleged in the second cause of action in the complaint.</p> <p>The marriage settlement was as follows:</p> <p>“ Whereas a marriage is shortly to be had and solemnized between James Moore, of the county of Chatham, State of North Carolina, and Sally J. Freeman, of the same county and State; and whereas it has been agreed between the parties, with the consent of the said James Moore, which is evidenced bj7 his signing this deed of conveyance, that the said Sally should settle for her sole use and benefit all her real and personal estate so that the same shall in no wise be subject to the debts, liabilities or contracts of her said intended husband, but that the said Sally may have and enjoy the same as if she was sole owner, notwithstanding the said marriage. Now, therefore, this deed witnesseth that the said Sally J. Freeman, for and in consideration of the premises and of one dollar to her in hand paid by Henry A. London, of said county and State, before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath given, granted, bargained and sold and by these presents doth give, grant, bargain and sell unto the said Henry A. London, his executors and administrators all and singular the following propert}’-, to-wdt:</p> <p>All the lots and houses in the city of Columbia, South and Lower Carolina, all the houses and lots in the town of Wilmington, N. C., owned by the said Sally J. Freeman, together with all appurtenances thereunto belonging or in any wise appertaining, also all money, bonds or evidence of debts due to her, the said Sally J. Freeman, also all furniture or other property of a personal nature. In special trust and confidence, nevertheless, that the said Henry A. London shall hold the said lots and houses, and money and bonds and furniture to the sole and separate use of the said Sally J. Freeman until the celebration of the said contemplated marriage, and after the said contemplated marriage shall have been celebrated between the said parties the said Henry A. London, trustee aforesaid, shall hold the said lots and houses, money or bonds and furniture and other property in special trust for the sole and separate use of the said Sally J. Freeman so that the same shall in no wise be responsible for the debts or contracts of the said James Moore; and it is further understood and agreed that the said trustee shall and will permit the said Sally J. Freeman to use any or all of the said property above described in any way that she, in her own judgment, may deem proper, and if the said trustee shall rent out any or all of said lots and houses, or dispose of any of said property at any time during the coverture'of the said Sally J. Freeman, he shall pay oyer the said rents or other money derived from said property to the said Sally J. Freeman, and her receipt for the same shall be a sufficient discharge and acquittance for the same, notwithstanding her said coverture; and it is further understood and agreed that if the said Sally should die during the said coverture, that the said trustee shall hold the said property to the use and benefit of such child or children as the said Sally may leave surviving her, for them and their legal representatives, unless the said Sally, by her last will and testament, duly executed, shall otherwise direct, which last will and testament it is agreed the said Sally may make, publish and declare, notwithstanding her said coverture. But and if the said Sally shall die without making any last will and testament, then and in that case the said described property shall become the property of the said James Moore, and the said trustee shall re-convey to the said Sally, or to the said James, or the survivor of them, the said property above described, and the said trustee is in no wise responsible for any of the rents or profits of said property except such as may come actually into his hands. In testimony whereof the said James Moore, Sally J. Freeman and Henry A. London, the trustee, have hereunto set their hands and seals, this 19th day of April, 1867.”</p>

This was a civil ACTION, tried before Boykin, /., at August Term, 1891, of Mooke Superior Court. The defendant made his promissory note to the Taylor Manufacturing Company for $401.95, dated the 2d day of April, 1886, and due six months from date. Before the note matured the payee endorsed it for value to the plaintiff, who held it as collateral security for an indebtedness due it from the said Manufacturing Company.

This was a civil action, tried before Armfield, J., at August Term, 1891, of Ieedell Superior Gourt.

<p>Certiorari — Notice—Rules.</p> <p>An application for certiorari will not be heard in the Supreme Court unless ten days notice, in writing, shall have been given to the adverse party.</p>

<p>Appeal — “ Case ” — Practice in Supreme Court.</p> <p>1. It must appear in the record that an appeal was duly taken, otherwise it will be dismissed.</p> <p>2. If the record shows an appeal, but there is no case on appeal settled (in those cases where such “ case ” is required), the appeal will not be dismissed, but the judgment below may he affirmed on motion . of appellee, if there are no errors in the record proper.</p>

These {Smith, administratrix, v. Kron, and Smith v. Kron,) were two civil cases, heard at Spring Term, 1891, of Montgomery Superior Court, before Graves, J., on a motion to make the award of arbitrators a rule of Court. On the 2d of April, 1890, the parties to each of these actions-entered into an agreement to refer the matters in controversy, involved in them, to arbitrators.

Supplementary proceedings, heard before Boykin, J., at August Term, 189'J, of Moore Superior Court, on appeal from the Clerk. The plaintiff obtained its judgment against the defendants for $1,089.83, with interest, in the Superior Court of the county of Moore, on the 17th day of August, 1885, and the same was duly docketed in that county. No part of the same has been paid.

<p>Receiver — Pleading—Deed—Evidence—Presumption.</p> <p>1. Where a party, in this case a defendant, in an action involving the title and possession of land, demands affirmative relief and asks for the appointment of a receiver, it is sufficient if he shows an apparently good title, either not controverted, or not unequivocally denied by his adversary.</p> <p>2. The execution of a deed having been established, there is a presumption that it is valid.</p>

This was a proceeding begun before the Clerk of the Superior Court of Randolph County, by John W. Long, the propounder, who offered for probate the verbal, or nun-capative, will of Henry C. Glosson, who died in said county on the 23d clay of December, 1888, which will was put in writing, and is in the following form, to-wit: “I give to Mrs. N. M. Patterson one hundred dollars out of my estate, and I appoint J. W. Long executor of my estate.” A jury being duly sworn and…

Civil ACTION, from Cumberland Superior Court, heard upon motion before Boykin, J., at Chambers, on 20th August, 1891. This is a creditors’ action.

Civil action, in which there was a claim and delivery, tried before Boykin, J, at the August Term, 1891, of DupliN Superior Court.

<p>Cause of Action — Parent and Child — Contract—Pleading.</p> <p>The complaint alleged that plaintiff had, at the dying request of her sister, taken charge of and supported, by her own unaided labors, an infant child of the sister ; that the father of the child at that time was, and since has remained, insane, and has been continuously an inmate of the State Asylum ; that he was possessed of an estate about the value of $6,000, now under the control of his guardian, and prayed judgment for compensation for the support of the infant : Held, upon demurrer, that the complaint did not state facts sufficient to constitute a cause of action, for that it did not allege any contract, express or implied, with the father, and that it appeared the support of the infant was voluntarily assumed by plaintiff.</p>

Ciiyil ACTION, tried at Spring Term, 1890, of New Hanover Superior Court, before Graves, J, for damages for removal of remains from a burial vault. The plaintiff proposed these issues— 1. Did ancestors of plaintiffs purchase from the defendant corporation the vault described in the pleadings ? 2. Did the defendant corporation convey by deed-to the ancestors of plaintiffs the property described in the pleadings? 3.

ActioN for divorce a mensa et thoro, tried at August terra, 1891, of Guilford Superior Court, before Winston, J. Twelve issues were submitted to the jury, being those tendered by defendant and adopted by the Court. The issues and responses were as follows: 1. Were the plaintiff and defendant lawfully married? Answer — Yes. 2. Iiave plaintiff and defendant resided in this State for two years next preceding this action ? Answer — Yes. 3.

This ACTION, an appeal from a Justice’s Court, was tried at the December Term, 1889, of the Superior Court of Guil-ford County, Graves, J., presiding. The plaintiff testified in his own behalf: “ I shipped to Holden & Hill, in Orange County, a twenty-five inch turbine water-wheel on trial. They said they did not have an opportunity to test it, and did not buy it.

Civil, ACTION, heard upon exceptions to the report of a referee at February Term, 1891, of Guilford Superior Court, before Boylcin, J. The referee gave judgment for defendant, and plaintiff filed exceptions to his report.

This' was a motion, heard before Whitaker, J., at March Term, 1891, of the Superior Court of Pitt County. The motion was made in behalf of William Whitehead, a defendant in a judgment rendered at June Term, 1886, of Pitt Superior Court, for the sum of $232.62, with interest from November 1, 1881, and for costs in the action above entitled. The Court found the following facts: 1.

Civil ACTION, tried at January Term, 1891, of Granaulle Superior Court, Boykin, J, presiding. The defendant R. V. Minor was the owner of a horse, which he permitted to remain with the defendants Meadows and Wilkerson, when he rented his warehouse to them, and all three occasionally used the horse.

Civil actior, to recover the possession of land, tried before MacRae, J., at December Term, 1890, of Guilford Superior Court. The following issues were agreed on and submitted to the jury: 1. Is the plaintiff the owner and entitled to the possession of the land described in the complaint? 2. Does the defendant wrongfully withhold possession of the same from the plaintiff? 3. What damages, if any, has the plaintiff sustained ?

<p>■Amendment — Appeal from Justice of the Peace — Estoppel.</p> <p>1. Upon an appeal in a civil action from the Court of a Justice of the Peace to the Superior Court, the latter has power to amend the pleadings and allow new pleas or matters pf defence to be set up, and its action in this respect is not, ordinarily, reviewable.</p> <p>2. In an action to recover a sum alleged to be due, the defendant may set up by way of estoppel the judgment of the Court, involving the same matter, rendered on a former motion for leave to issue execution on a dormant judgment.</p>

This was a civil action, tried upon April 13th, 1891, in Roxboro, PERSON County, before Boykin, J., at Chambers. The plaintiffs ask for a writ of mandamus to compel the defendants to issue six thousand dollars of bonds and deliver same to plaintiffs, on account of Mt. Tirzah Township in said county, and to accept for same sixty shares of stock in plaintiffs’ corporation.

Civil ACTION, tried at April Term, 1891, of PERSON Superior Court, before Boykin, J. The plaintiffs brought this action in the Superior Court in term to set aside a sale of the land in controversy, made by virtue of a decree rendered in March, 1883, in a special proceeding instituted before the Clerk by the administrator of their deceased father for the purpose of selling land to pay debts, and also to recover the possession of the land from those holding by mesne…

Civil ACTION, tried on complaint and demurrer, before Boykin, J., at the April Term, ] 891, of the Superior Court of GraNville Countju The plaintiff alleged— 1. That Amos Gooch, late of said county of Granville, died intestate in said county in the month of March, 1885. 2. That on the 16th of March, 1885, plaintiff was duly appointed and qualified as administrator upon said intestate's estate. 3.

<p>It appears that the plaintiff had obtained his judgment against the defendant in the Superior Court of Wake County, and that the same was duly docketed; that, afterwards, on the 20th day of April, 1891, the plaintiff began this proceeding, supplementary to the execution, and obtained from the Court (the Clerk) an order requiring the defendant to appear and answer concerning .his property, at a time and place specified, as allowed by the statute in such cases. A copy of this order was placed in the hands of the Sheriff of said county to be served upon the defendant.. The Sheriff made return thereof as follows:</p> <p>“Received April 25tb, 1891.</p> <p>Executed by delivering a copy and exhibiting the original of the within order and affidavit to Mrs. L. V. ITolden, and also left a copy of order and affidavit with Mrs. L. V. Holden for W. W. Holden, the 29th day of April, 1891, at 4 o’clock p. M.</p> <p>M. W. Paue, Sheriff Wake County,</p> <p>By C. M. Walteks, Deputy.”</p> <p>Sheriff, by leave of Court, made the following amended return:</p> <p>“ Received April 25th, 1891.</p> <p>Executed by delivering a copy and exhibiting the original of the within order and affidavit to Mrs. L. V. Holden, and also by leaving a copy of order and affidavit with Mrs. L. V. Holden, wife of W. W. Holden, for said W. W. Plolden, at his residence in the city of Raleigh, at the hour of 4 o’clock p. M, on the 29th day of April, 1891, the said L. Y. Holden being a person of suitable age and discretion with whom to leave such papers. . M. W. Page, Sheriff,</p> <p>Per C. M. Waltees, D. S.”</p> <p>The defendant contended that the copy of the order and notice was not properly and duly served upon him, and his counsel contended further that they had the right to appear for the purpose simply of a motion to dismiss the proceeding on the ground that notice had not been served. They moved that the record be so amended as to show that they appeared and only for such purpose. The Court (the Clerk) denied this motion, and the defendant appealed to the Judge. The Clerk refused to certify the record, etc., to the Judge. Thereupon the defendant applied to the Judge for a writ of certio-rari, requiring the Clerk to certify the record, etc., to him. The Judge granted the writ, and due return thereof was made.</p> <p>The Court (the Judge), upon consideration, made its order, whereof the following is a copy :</p> <p>“ This cause coming on to be heard this day before Robert W. Winston, Judge, the plaintiff, represented by John Deve-reux, Jr., and Chester Turner,.and the defendant by Thos. C. Fuller and W. R. Henry, who enter a special appearance in writing, and move to dismiss upon the return of John W. Thompson, C. S. C. of Wake County, to the order to him to certify the record of his proceedings to the Court, and having been heard upon the argument of counsel for both sides, the defendant’s counsel state that they do not appear generally in this action, but specially, in order to move to dismiss the proceedings, and insist that the same ought to be dismissed for the reason that W. W. Holden has not been properly served with process, in that this proceeding to be begun by process, the same should have been read to him in person.</p> <p>That the-Clerk ought to have permitted an amendment of the record, so as to show that the- appearance of Messrs. Fuller and Hinsdale, on the 11th of May, 1891, was a special appearance, and not general.”</p> <p>The Court, being of opinion that the notice of this supplemental proceeding had been properly served, and also that the Clerk’s finding and ruling that the said attorneys appeared generally on said 11th of May, 1891, was final and conclusive, and that such general appearance cured any defect in serving said process or notice, if such defect ever existed, overruled the motion to dismiss. From which order and ruling the defendant took an appeal to Supreme Court.</p>

This is an ORIGINAL action, instituted in the Supreme Court, under Art. 4, § 9 of the Constitution,, to recover the amount due upon the coupons of a certain alleged bond of the State of North Carolina, purporting to have been issued in aid of the Chatham Railroad Company, under an ordinance of the Convention of North Carolina, ratified 11th March, 1868.

The complaint alleges, in substance, that the plaintiff is the owner of the horse described therein and entitled to have possession thereof; that the defendant has possession of the horse and refuses to surrender the same, etc. The defendant denies the material allegations of the complaint, and alleges, that the plaintiff sold him the horse for ninety-five dollars; that he paid fifty dollars of this price and gave the plaintiff his note for the balance, forty-five dollars,…

<p>Landlord and Tenant — Vendor and Vendee — Lien—Costs.</p> <p>A contracted to purchase land from C, but did not pay the entire purchase-money; O instituted an action and recovered judgment, under -which the land was sold for the satisfaction of the balance due, when the plaintiff became the purchaser and entered, and thereupon A rented from her for the remainder of the current year. Prior to the sale, A had executed an agricultural lien to the defendant, who had notice of the action to foreclose for advances made and to be made for the year: Held, (1) that, by virtue of the agreement to lease, the relation of A was changed from that of vendee to that of tenant of the plaintiff, and the lien of the landlord took precedence of that of defendant for advances, notwithstanding the priority of the latter in time; (2) where a party is allowed to come in and defend an action, and the plaintiff recovers judgment, he is entitled to costs against all the defendants.</p>

<p>Excusable Neglect — Vacating Judgment — Appeal.</p> <p>I. The findings of fact by a Justice of the Peace, upon a motion to vacate a judgment for excusable neglect, are reviewable on appeal by the Superior Court, but the findings of fact by the Superior Court upon such motion and appeal are not reviewable by the Supreme Court.</p> <p>2. Where the local agent of an incorporated company appeared on the return day of a summons, before a Justice of the Peace, and procured a continuance for ten days, within which time it had an opportunity to employ counsel to represent it, but it neglected to do so until the day of the trial, when, because of delay in the mail, the counsel was not able to appear until after trial: Held, to be inexcusable neglect.</p> <p>3. Upon a motion to vacate a judgment rendered by a Justice of the Peace there was judgment denying the motion, and an appeal was taken to the Superior Court: Held, in the absence of any evidence of notice of appeal, within ten days from the original judgment, it would be presumed the appeal was from the judgment refusing the motion to vacate, and not from the judgment upon the merits of the action.</p>

<p>This was a motion, heard before Whitaker, J., at June Term, 1891, of Pitt Superior Court.</p> <p>The following is so much of the case stated on appeal as need be reported:</p> <p>The plaintiff, in his complaint, recited two mortgages of land executed by defendants (Sugg and wife) to plaintiff (the one on December 7th, 1883, and the other on December 1st, 1886), and a certain judgment rendered in favor of one W. S. Rawls against said defendant at March Term, 1889, which had been purchased by plaintiff for a valuable consideration, and duly assigned to him. Among the tracts conveyed by the mortgages was one which Sugg and wife held under a deed executed to them jointly by Charles D. Rountree and wife. The action is to foreclose the mortgage, etc.</p> <p>No answer was filed. Service of summons was accepted by the defendants.</p> <p>J. J. Nicholson & Sons, judgment creditors of the defendant Isaac Sugg, by virtue of a certain judgment rendered at June Term, 1886, of said Court, caused a notice of motion in this cause to be served on the parties, and at the present term, upon affidavits filed, they moved for leave to come in and be made party defendant for the reasons set forth in the affidavit, to the end that they may have their rights as judgment creditors duly protected. A counter affidavit, made by defendant Isaac Sugg, was filed by plaintiff.</p> <p>The Court refused the application of Nicholson to be made party defendant, for the reason that he had no interest in the land sought to be sold, and the Court, finding that the land covered by the mortgage is the sole property of the feme defendant, except one tract, and that this tract is the property of Sugg and his wife holding by entireties.</p> <p>Nicholson, the appellant, excepted. Thereupon a judgment, by consent of plaintiff and defendant Sugg and wife, was rendered, and Nicholson appealed.</p>

<p>MotxoN to reinstate an appeal.</p>

Civil actioN, tried at August Term, 1890, of Guilford Superior Court, MacRae, J., presiding. There was judgment for plaintiff and defendant appealed. The facts are stated in the opinion.

Civil action, tried at January Term, 1891, of Wayne Superior Court, Winston, presiding. This action is brought to recover the personal property specified in the complaint, the plaintiffs availing themselves of the provisional remedy of claim and delivery. The plaintiffs allege their title to and right to have possession of the •property particularly specified. The defendant, in his answer, denies the material allegations of the complaint.

Civil action, tried before Winston, J., at the February Term, 1891, of the Superior Court of Wake County. The plaintiff alleged that on the 6th day of February, 1886, one Colin Campbell, as principal, and the defendants W. H. J. Goodwin and C. E..

Civil ACTION, tried before Winston, J., at the April Term, 1891, of the Superior Court of Wake County. Held: and plaintiff excepted and appealed.”

This was an ACTION commenced before a Justice of the Peace, and tried on appeal before Winston, J, at the February Term, 1891, of Harnett Superior Court. During the year 1888 the plaintiff gave the defendants two promissory notes, secured by liens'on his crop of 1888, for provisions, etc., for that year, and failed to fully pay off said notes, but at the commencement of this action there was a balance .still due on said notes of $96.

Civil action, tried before Whitaker, J., at Spring Term, 1891, of Wayne Superior Court.

<p>Civil action, tried at April Term, 1891, of Wayne Superior Court, before Winston, J.</p> <p>This action was brought to recover damages occasioned by the alleged negligence of the defendant. The latter, in its answer, denies the material allegations of the complaint, and alleges contributory negligence on the part of the plaintiff, which directly brought about the injuries complained of.</p> <p>The Court submitted the following issues to the jury—</p> <p>“1. Was the plaintiff injured by the negligence of the defendant? 2. Was the plaintiff guilty of contributory negligence? 3. What damage, if any, is the plaintiff entitled to recover?” To the first of these issues, the jury responded “ Nothere was ño response to the second and third.</p> <p>On the trial, the plaintiff was examined as a witness in his own behalf, and testified as follows: “I was injured on the railroad from Winston to Wilkesboro, in October, 1890. I had been working fo'r defendant since July 7th, 1890, and had been a railroad hand for seven years. I do not know the rate of speed of the train on which I was at the-time, but it was very fast, faster than the mail train runs — looked like the world was turning round. It was an awful crooked road, not one-half mile of it straight; it ran with the Yad-kin river; it was a mountainous, hilly country, and it was a new road. The track was pretty rough. I was thrown off the train. The train went to Elkin and laid over; there was a side-track there long enough to hold the train, but the conductor came out and we went on. The train ran fast; it was a material train, made up of flat-cars and a, shanty-car; I was employed on the train as a laborer; I was at the rear end of the shanty-car, near my bunk, on the inside of the car; I got scared and uneasy, and came to stove in middle of car; there were two other men in the car sitting on seats, blocks of wood, on either side of the door, which was open. The door was on the side of the car; the right-hand man got up. and I went to take his seat, and as I raised my foot, the train made a swift curve and switched me out of the door. I moved from the end of the car because I was afraid ; and if she jumped the track, I could jump out; I thought it would turn over, because the road was rough, crooked and the train running fast; I was flung down a fill in the weeds and stunned for a few minutes, broke my arm and hurt me inside — hurt me for life-time, I think. Two doors to shanty, one on eacb side, window in each end of car; one door was open and the other closed; flat-cars were in front of the shanty-car.”</p> <p>On cross-examination, the witness said: “I had been over that road often; knew it was pretty rough and had short curves; had been over that, curve often and knew it well; was sitting between the bunks on block of wood, near rear of car; Nelson Smith and Martin Holt were in the car with me; the left-hand door was partly open, and they were sitting on blocks of wood near the door; blocks were not fastened-; I went to the open door to get out, if she slacked up; Martin Holt got up from his seat; Nelson Smith did not get up; there was a stove in the middle of the car between the doors;</p> <p>I went to take Martin Holt’s seat; went on side of stove next to open door — right-hand door was .shut; I tried to get hold of the stove-pipe as I was falling; I could have gone by the closed door and reached the block if I had thought of it; that was the safest way, and if I had thought it was going to jerk, I would have done it; the train came back and took me up. I did not tell Dr. Dalton at the' depot in Winston, on October 29th, 1890, that the train was running twenty-five miles an hour.” There was other evidence that need not be reported.</p> <p>There were divers exceptions to the instructions the Court gave and others it refused to give at the instance of the plaintiff. These need not be reported, for reasons stated in the opinion of the Court. There was judgment for the defendant, and the plaintiff appealed to this Court.</p>

<p>Civil actioN, tried before Whitaker, J., at the August-Term, 1891, of the Superior Court ef JohnstoN County.</p> <p>The plaintiff alleged, in substance, that the defendant executed to his intestate four several bonds, set out in the complaint, amounting in the aggregate to $254.45, with interest from the date mentioned, and that at the death of his intestate said bonds were found among his valuable papers with no payments or credits endorsed on either of them, and he demanded judgment for payment of said debt and interest.</p> <p>The defendant admitted the execution of the notes, but alleged that all, except the note for $25, had been paid. The following was the only issue submitted to the jury:</p> <p>“ What amount, if any, has the defendant paid on the notes set out in the complaint?”</p> <p>The defendant offered several witnesses in support of his plea; the substance of their testimony is stated in the opinion of the Court.</p> <p>In reply, the widow of the intestate testified, so far as material to the question before this Court, that the defendant paid one bale of cotton in 1879; that he sometimes sold her husband chickens, for which he was paid cash, as he said the chickens belonged to his wife; that he brought pork three times, but none since the beginning of 1883; that the defendant brought cotton one time only, and that was in 1879; that in January in 1887 the first note had not been paid, or she never knew of any payment; that the pork went on the note, also the lard, some hams in 1882 and 1883, and t'wo cows at $18 each, or $36 for the two, in 1882-83.</p> <p>“His Honor instructed the jury that the burden was on the defendant, and having pleaded payment, it was necessary for him to prove it; that in answering the issue submitted to them they might say as much as $96, that is, the $9 as testified to by the witness Lanham, the one bale of cotton at $57 as testified to by the witness Stafford, and the two cows at $18 each, if they were so satisfied by the evidence, but they could not find any greater payment than $96, to which the defendant excepted.” The jury responded to the issue, $96. The defendant moved for a new trial on the ground of error in his Honor’s instruction as above stated. The motion was refused, and the defendant appealed.</p>

This was an appeal from a judgment dissolving a n straining order, granted at Chambers at Oxford on 27th of June, T891, by Winston, J. The plaintiff set forth in his complaint that the defendant SB.

' Civil ACTION for land, tried before Boykin, ./., at November Term, 1890, of HarNETT Superior Court. The action was commenced 8th of June, 1888, by W. P. Phillips, who afterwards died, and the present plaintiffs were made parties.

<p>Civil actioN for the possession of land, tried at September Term, 1891, of PIakNktt Superior Court, before Boykin, J.</p> <p>The plaintiff relied upon a Sheriff’s deed for the land in dispute, and offered the record of a civil action before a .Justice of the Peace in which the judgment was obtained, which was afterwards docketed in the Superior Court, and with it the execution issued thereon, levy and sale by virtue of which the Sheriff executed the deed. The claim declared upon before the Juslice of the Peace was as follows:</p> <p>“ For labor done in November, December and January, in the years 1887 and 1888, to the amount of $128.82. The defendant appears in Court and confesses judgment, and the Court adjudges that the defendant pay to the plaintiff the sum of $128.82, and the further sum of all costs,” etc.</p> <p>The plaintiffs ielied upon a laborer’s lien to authorize the sale of the land, without alloting the homestead. The lien filed was in the following form:</p> <p>EXHIBIT H.</p> <p>“The said McMillan Bros, file this lien against the said C. T. Williams and S. W. Parker in the office of the Clerk of the Superior Court of Harnett County, N. C., in and for said county. Said lien is for work and labor on the two houses of C. T. Williams and S. W. Parker, as per bill of particulars herewith filed; said houses — tvyo in number— being situate in the County of Harnett, in the town of Dunn, in said County of Harnett. And upon the said two houses, where the said C. T. Williams and S. W. Parker now reside, in said town of Dunn, Harnett County, N. C., the said McMillan Bros claim their lien.</p> <p>This the 6th day of June, 1888.</p> <p>McMillaN Bbos., Claimants.”</p> <p>This was accompanied by a bill of particulars.</p> <p>-Judgment was rendered for defendants and plaintiffs appealed.</p>

Civil actioN, tried at April Term, 1891, of Wakb Superior Court, before Winston, J. The plaintiffs brought their action to recover two horses and one set of harness, valued at three hundred dollars, and by claim and delivery proceedings took possession of the property sued for soon after the action was brought in June, 1890.

Civil action, tried at May Term, 1890, of Guilford Superior Court, Boykin, J., presiding. This action was brought to recover compensation for services by plaintiff to the testatrix of defendant, first tried on appeal from a Justice’s Court, before McEae, J., at August Term, 1890, upon the issue, “Is the defendant indebted to the plaintiff as alleged, ami if so, how much?” and from the judgment at that term there was an appeal to the Supreme Court and new trial granted.

Civil ACTION, tried before Boylcin, J., at March Term, 1891, of Durham Superior Court. The alleged libel was contained in a letter written by defendant to the Superintendent of the Census, as follows: “Hillsboro, N. C., June 10th, 1890. Hon. Robert Porter, Washington, D. C.: Dear Sir — In this district Mr. Hawkins appointed a large majority of enumerators, extreme Democrats, ballot-box stuff-ers, among them MURDERERS and drunkards.

<p>Civil ACTION, tried before Boykin, J., at March Term, 1891, of Durham Superior Court.</p>

This was a civil ACTION, brought to recover a penalty imposed by § 1967 of The Code, for detention of freight more than five days after delivery for shipment without the consent of the consignor, tried before Armfield, J., at September Term, 1890, of the Superior Court of New HaNOVEK. County. The termini of the defendant’s road are the one in North Carolina and the other in South Carolina.

Civil ACTION, originally commenced before a Justice of the Peace and carried by appeal to the Superior Court of the county of Chatham, and tried before Winston, J., at the Fall Term, 1891, of said Superior Court. The plaintiff sued on a promissory note, of which the following is a copy “$125.00. Durham:, N. C., Feb’y 18th, 1891.

<p>Advancements — Evidence.</p> <p>The fact that a father conveyed to his son a tract of land worth $1,200, for a recited valuable consideration of $400, will not prevent the grantee from being charged with the difference as an advancement, if it was the purpose of the grantor to do so; and the purpose to treat it as an advancement may be proved by parol evidence.</p>

<p>Civil ACTION, tried at February Term, 1891, of CraveN Superior Court, before Connor, J.</p>

<p>Civil actioN, tried at January Term, 1891, of GraNVille Superior Court, Boykin, J., presiding.</p> <p>Judgment for defendant, and plaintiff appealed.</p>

<p>This was a petition to have a public road and ferry established, -heard before Mclver, J., at Spring Term, 1891, of Chatham Superior Court.</p> <p>The prayer of the petitioner was allowed. The jury laid out the road, assessed damages and made their report to the County Commissioners, who confirmed the same. Thereupon the respondents appealed to the Superior Court. In the latter Court the appellants (petitioners) moved to dismiss the appeal, “upon the ground that the defendants (respondents) should have appealed from the order of the Commissioners establishing the public road, fixing the termini and directing the Sheriff to summon a jury of freeholders to lay off said road, and that the defendant could not appeal from the order confirming the report of the j urors.” The Court denied the motion, and the petitioners, having excepted, appealed.</p>

<p>Appeal from Fall Term, 1891, of Durham Superior Court.</p>

This was a civil ACTION, brought by the plaintiff as receiver, appointed in proceedings supplemental to execution, to recover of the defendants ninety-five shares of stock of the Durham Medicated Cigarette Company, tried before Boykin, J., at the March Term, 1891, of Durham Superior Court. The plaintiff introduced, without objection, the testimony of the defendant R. F. Whitehurst, before D. C. Mangum, Clerk Superior Court, in the supplemental proceeding before referred to.

<p>. Appeal, when Premature — Process — Service — Publication — Statute.</p> <p>1. An appeal from the refusal of a motion to dismiss an action for want of proper service of process, taken before final judgment, is premature and will not be considered. The better practice is to note an exception and proceed with the trial.</p> <p>2. Service of summons made by publication from August 3rd to August ■31st, the term of the Court to which the process was returnable beginning on the latter day, is a sufficient publication of “ once a week for four weeks,” and a compliance with the statutes in that respect. The Code, §§ 200, 596, 602; ch. 108, Laws 1889.</p> <p>3. It is sufficient if the publication contains the substantial elements of the summons, and the fact that it is not a literal copy will not render the service void.</p>

<p>Printing Record — Rules—Practice in Supreme Court.</p> <p>When a- printed brief is filed under Rule 12, the party filing it is to be taken as asking a decision at such term and as opposing a continuance, and a motion by the opiiosite party t,o continue the case till next term will not be granted unless expressly assented to, or for good cause shown.</p>

This was a civil actioN, for the possession of land, tried before MacRae, J., at November Term, 1890, of Granville Superior Court. Defendant Cobb was admitted to be the tenant of the defendant S. B. Hays, who was allowed to come in ;and defend as landlord. Both parties claimed title to the land in dispute under one Peter Hays.

<p>Judgment — Lien—Docketing—Index and Cross-Index.</p> <p>1. To constitute a lien, a judgment must be “ docketed ” in the manner prescribed by The Code, §§ 83, 433, 434, and one of the indispen-sible requirements is that the record shall contain an index and cross-index of the names of the parties to the judgment.</p> <p>2. "Where a judgment against several persons was entered on the judgment docket, but the caption and index and cross-index contained the name of only one of the defendants: Held, that no lien was created against the property of the defendants whose names were so omitted.</p>

<p>Railroad, Construction of — Eminent Domain — Surface Water — Damages.</p> <p>A railroad company has the right to cut and maintain, on its right-of-way, such ditches as may be necessary to carry the surface water collected thereon to any natural outlet capable of receiving it, but it has not the right to divert such surface water into a channel where it would not naturally flow, and which is not adequate to receive it, if, thereby, the lands of others are injured.</p>

Civil actioN, tried at Spring Term, 1891, of Beaufort Superior Court, Bryan, J., presiding.

This was a civil ACTION for the recovery of land, tried before Womack, J., at October Term, 1890, of the Superior Court of YaNCE County. The material facts are stated in the opinion.

Civil action, heard upon complaint and demurrer, before Mclver, J., at the April Term, 1891, of the Superior Court of New Hanover County. The complaint is as follows: 1. That during the Summer and Fall of 1887 plaintiff was in possession of a certain tract of land, or island, in New Iianover County in Wrightsville Sound, near the ocean, and known as Sneeden’s Hammocks, occupying same under a claim of title which he believed to be good and valid. 2.

This was a civil action, tried at Pall Term, 1890, of the Superior Court .of-Pender County, before Arm field, J. The issues submitted, with the responses by the jury, were as follows: “1. Did defendant, by its negligence in’moving its cars and engines, kill the horse of the plaintiff? Yes. 2. If yes, what damage has plaintiff sustained thereby?

Civil actioN, tried at January Term, 1891, of New .Hanover Superior Court, Graves, J., presiding.

This is a special proceeding for partition, begun in the Superior Court of Jones County, and tried at Fall Term, 1890 (upon issues joined before the Clerk), Armfteld, J., presiding.

Civil ACTION, beard at Fall Term, 1891, of Ashb Superior Court, upon exceptions to referee’s report, Bynum, J., presiding. The plaintiffs, Clayton and Williams, brought this action to recover large sums of money due them from the defendant.

This was a civil ACTION, tried by Bynum, J., at Fall Term, 1891, of the Superior Court of Burke County.

Civil actioN, tried before Byitum, J., at Fall Term, 1891, of McDowell Superior Court.

<p>This is a special proceeding in which the plaintiffs,, claiming to be tenants in common with the defendant of a tract of land, prayed for a sale for the purpose of partition. On a plea of sole seizin it was transferred to the civil issue docket of the Superior Court of Forsyth County, and tried at the February Term, 1891, before Bynum, J.</p> <p>The land was known as lot number 8, which was assigned to Elizabeth, the widow of J. A, Henning, by consent, for her life-time in lieu of dower. She died in 1844, when the seven heirs at law, children of her marriage with J. A. Henning, held the land as tenants in common. It is not necessary to set forth the evidence in detail. William Henning continued to live on the land till he died, about 1887, but conveyed it to the defendant Warner by deed, dated November 15th, 1883.</p> <p>Katie, a sister of William, lived with him on the land till she died. Her daughter Bettie continued to live with William after the death of Katie, and on the death of Bettie, Viney, her daughter and a grand-daughter of Katie, continued to live on the land till a year ago, or two years after the death of William.</p> <p>There was testimony tending to show that William Hen-ning, during, all of this period, received the rents and paid the taxes. There was, also, testimony tending to show that the rents were received by him and his sister Kate and divided between them, and were later divided between him and her daughter Bettie, and still later that he shared the rents with the grand-daughter Viney. It was also in evidence for the defendant that about two years before the action was brought on the_day of-, 1890, Viney, who has now joined the other heirs at law as plaintiffs, asked his permission to be allowed to stay on the land, and remained, by his permission and on condition of good behavior, till the fall preceding the trial. Only one issue was submitted which, with the response to it, was as follows: “ Are the plaintiffs tenants in common with the defendant in the land set out in the petition? Yes.”'</p> <p>At October Term, 1890, the following order was entered; “ It is ordered by the Court that if no bond is filed before Tuesday of the next term of this Court, the case stands dismissed.” ■</p> <p>When the case was called for trial the defendant moved to dismiss for non-compliance with this order His Honor, exercising his discretion, allowed the plaintiffs to file a bond, and refused to dismiss.</p> <p>For alleged error in instructions given to the jury, the defendant appealed.</p>

This was a civil ACTION, for the possession of land, tried at the Spring Term, 1891, of the Superior Court of Ashe County, before Hoke, J. There was a verdict and judgment for the defendant, from which the plaintiff appealed. The facts are stated in the opinion.

Civil actioN, tried before Graves, J., at the Pall Term, 1891, of the Superior Court of Wilkes County. The plaintiff a'leged that he was the owner of certain land described by metes and bounds in the complaint.

This was a civil action, tried at the Spring Term, 1891, of the Superior Court of Davie County, before Bynum, J. The plaintiff brought an action for possession of, and offered the deed of an administrator c. t. a. to, the land in controversy, made by virtue of a power contained in the will of David Call, executed in 1838, which power is construed in the case of Orrender v. Call, 101 N. C., 399, together with the will of David Call.

This was a civil ACTION, tried at August Term, 1891, of JOHNSTON County Superior Court, before Whitaker, J. The following issues were submitted to the jury: 1. Was J. M. Clark killed by the negligent running of defendant's engine ? 2 Was there contributory negligence on his part? 3. After said J. M. Clark put himself in peril, might the killing have been avoided by the exercise of proper care and prudence on the part of defendant company’s engineer? 4.

This was a civil actioN, tried before Hoke, J., at Spring Term, 1891, of the Superior Court of HendersoN County. There were no exceptions to the charge or to the evidence. After the Court had concluded the charge, and as the jury were about to retire, the defendant’s counsel preferred a written request for instructions, and excepted because the same were not given.

Special PROCEEDING for partition, begun before the Clerk, and upon issues joined transferred to the civil issue docket and heard before Hoke, J., at Pall Term, 1891, of the Superior Court of Yadkin County. The defendant J. W. Davis answered and set up sole seizen. The plaintiffs introduced a deed from Josiah Davis to Stephen Davis, as trustee. Also deed marked “ Exhibit B,” for the sole purpose of estopping J. W. Davis.

This was a civil actioN, tried before Graves, J., at the Special Term of the Superior Court held for the county of Stokes on the 20th day of July, 1891. The plaintiffs alleged that they are tenants in common with the defendants of the lands described in the pleadings as the heirs at law of A. B. Tilley. Tlie defendants denied this, and alleged that under the will of A. B. Tilley, deceased, they, as the heirs of P. H. Tilley, are the sole owners of the described land.

<p>Civil actior, tried at July Special Term, 1891, of Stoices Superior Court, Graves, J., presiding.</p> <p>The defendant appealed.</p>

Civil ACTION, tried before Graves, J, at July Special Term, 1891, of Stokes Superior Court.

Civil ACTION, tried at July Special Term, 1891, of Stokes Superior Court, before Graves, J. The plaintiffs are the distributees of William Smith, deceased, and the defendant C. C. Smith is his administrator, and this action is brought against him and the defendant Martin, surety on his administration bond, for an account and settlement of the estate of the deceased.

<p>This was a civil ACTION, tried at Fall Term, 1891, of the Superior Court of DavidsoN County, before Arm,field, J.</p> <p>The facts are stated in the opinion.</p>

Civil action, tried on appeal from a Justice of the Peace, at Spring Term, 1891, of Wilkes Superior Court, Bynum, J., presiding.

Civil action, tried at Spring Term, 1891, of Surry Superior Court, Bynum, J., presiding. The plaintiff brought this action to recover the debt and foreclpse the mortgage of land to secure it specified in the complaint.

<p>Appeal — Certiorari.</p> <p>The Supreme Court will not grant the writ of certiorari as a substitute for an appeal where the petition fails to show that the appellant took an appeal, and caused the proper entries and notice thereof to be given within ten days after the rendition of the judgment or of notice thereof; the simple allegation in the petition that appellant within the ten days caused a notice of appeal to be placed in the hands of the Sheriff, and that it was served, is not sufficient.</p>

This was a special proceedING, tried before McCorkle, J., at Fall Term, 1890, of Wilkes Superior Court. The only point presented for review is whether the endorsement on the deed vested an estate, either in law or equity, in Sarah Blackburn. Iiis Honor held that Sarah was entitled in equity to a life-estate, and from the judgment in conformity with that opinion the defendant appealed.

Special PROCEEDINGS to assess damages for right-of-way, and heard (on appeal from the Clerk) at February Term, 1891, of Forsyth Superior… Held: in passing on exception four, that he had no legal power to hear affidavits on the question of damages, nor to submit said question by issue to a jury, but that the act of the commissioners was conclusive as to the amount of damages, there being no power in the Court to review the amount assessed by them. “It is adjudged that the…

<p>Taxes — Action to Refund — Demand—Statute.</p> <p>1. The statute, oh. 137, § 84, Laws of 1887, requiring that a tax-payer, within thirty days after the payment of an alleged invalid tax, make a demand for its re-payment before bringing suit therefor, is mandatory in that respect, and such action cannot be maintained .without first making the demand within the prescribed time.</p> <p>2. The requirement of demand is not confined to claims for refunding any particular taxes, or taxes alleged to be invalid on any particular account; it extends to all taxes. »</p>

This was a MOTION for leave to issue execution oti a judgment, heard on appeal from the Clerk at Fall Term, 1890, of the Superior Court of RobesoN County, before Graves, J. Judgment was rendered by a Justice of the Peace against the firm of D. B. Buie & Bros., composed of D. B. Buie, J. C. Buie and the appellant M. C. Buie, in favor of the plaintiffs, which judgment was subsequently docketed in the Superior Court, and at subsequent term of the latter Court a judgment was…

<p>This case was before this Court by a former appeal, at the February Term of 1890, and the judgment appealed from was then affirmed. Thereupon the order and judgment of this Court was certified to the Superior Court, and the following is a copy thereof:</p> <p>“This cause came on to be argued upon the transcript of the record from the Superior Court of Rockingham County. Upon consideration whereof this Court is of opinion that there is no error in the record and proceedings of the said Superior Court.</p> <p>It is, therefore, considered and adjudged by the Court here, that the opinion of the Court as delivered by the Honorable A. S. Merrimon, Chief Justice, be certified to the said Superior Court, to the intent that the judgment be affirmed.</p> <p>And it is considered and adjudged further, that the appellant, J. Turner Morehead, do pay the costs of the appeal in this Court incurred, to-wit, the sum of thirteen dollars, and let execution issue therefor.”</p> <p>In the Superior Court of Rockingham County, at the January Term, 1891, thereof, Bynum, J., presiding, the Court entered judgment in pursuance of the order here,-as follows:</p> <p>“ In this action J: Turner Morehead, receiver of the Dan-ville, Mocksville and South-western Railroad Company, defendant, having taken an appeal from the judgment of James C. MacRae, Judge, entered on the 6th day of November, 1886, and the certificate having come down from the Supreme Court, and the same being now read and considered by the Court, it is ordered and adjudged by this Court now here, in obedience to said certificate from the Supreme Court, that the order of the said James C. MacRae, Judge, be and the same is affirmed and re-entered as the judgment and decree of this Court, the costs in this Court, together with the costs in the Supreme Court, to be paid as in said decree mentioned and as directed by the judgment of-the Supreme Court, by the said J. Turner Morehead, receiver.”</p> <p>The appellant assigned error of this judgment as follows, and appealed to this Court :</p> <p>1. That it does not comply with the mandatory statute of this State contained in Chapter 192, § 3, of the Laws of 1887:</p> <p>(a) In that it was not filed “ at the first term of the Superior Court after the certificate was received;” and</p> <p>(b) In that it fails to “ direct the execution thereof to proceed,” when said statute expressly commands that, “if the judgment is affirmed, the Court below shall direct the execution thereof to proceed.”</p> <p>2. That there can be no legal process issued on the judgment until the “order” is made therein to “proceed.”</p> <p>(6j That this judgment is defective in form and contrary to the course and practice of the Court, in that it adjudges “that the order of the said James C. MacRae, Judge, be and the same is affirmed and re-entered as the judgment and decree of this Court,” when the judgment should have been, that the motion to vacate and set aside the judgment confessed in this action and Court be denied and dismissed, in accordance with the former judgment herein of James C. MacRae, Judge, and the opinion of the Supreme Court in this cause.</p> <p>(7) That so much of this judgment as refers to cost is erroneous, in that it orders “the cost * * * to be paid * * * as directed by the judgment of the Superior Court by the said J. Turner Morehead, receiver,” when, according to the certificate from the Supreme Court, the judgment of the Supreme Court, as to cost, is against J. Turner More-head.”</p>

<p>Curtesy, tenant by — Husband and Wife■ — Constitution.</p> <p>1. A tenant by the curtesy initiate cannot maintain an action for the rents of his wife’s real estate, when the marriage has taken place since the Constitution of 1868.</p> <p>2. The only right attaching to such tenancy by the curtesy initiate in the wife’s real estate, is the bare right of joint occupancy with the wife with the right of ingress and egress.</p> <p>8. The tenant by the curtesy initiate is still a freeholder.</p>

<p>Constitution — Tenant by Curtesy — Husband and Wife — Deed— Parties.</p> <p>1. '.The common law estate of the husband as tenant by the curtesy initiate in the lands of his wife was abolished by Section 6, Art. 10, of the Constitution, and now, by virtue of that provision and the statutes passed in pursuance thereof, while the husband has an interest, the right to enter upon and occupy the land with the wife, he has no estate therein until her death.</p> <p>3. The husband cannot maintain an action in his name alone to recover lands of which he is tenant by the curtesy initiate, but the wife can maintain such action, either by joining her husband or suing alone.</p> <p>3. A conveyance of land from husband to wife will pass the legal estate of the vendor and enable the vendee to sustain an action to declare title and recover possession.</p>

This was a civil action brought for the recovery of a tract of land, tried at the Special June Term, 1891, of the Superior Court of Watauga County, before Hoke, J. The action was commenced March 18,1889. The plaintiff offered as evidence of title— 1. G-rant from the State to Samuel Patton, dated December 10th, 1852, for the land in controversy. 2. A deed from Levi Hefner and wife Mary, and D. E. ICaylor and wife Sarah, bearing date January 12th, 1882.

Civil action, tried at August Term, 1891, of Ikedell Superior Court, Armfield, J., presiding.

Civil ACTION, tried at August Term, 1891, of Iredell Superior Court, Armfield, J., presiding. It appears that the intestate of the plaintiff died and his widow, Malinda C. Brawley, was duly appointed and qualified as administratrix of his estate on the 27th day of August, 1870, and took upon herself the burden of administering the same.

This was á civil ACTION, heard before Armfield, J., upon complaint and demurrer, at August Term, 1891, of Iredell Superior Court. The complaint alleged— 3.

Civil actioN to recover damages for alleged malicious prosecution, tried at March Term, 1891, of Columbus Superior Court, before Armfield, J. The plaintiff introduced evidence tending to show that he was arrested on thewarrant of a Justice of the Peace issued at the instance of the defendant J. L. Powell charging him with disposing of mortgaged property.

This was a civil action, heard before Armfielcl, J., at March Term, 1891, of Columbus Superior Court, upon exceptions to the report of a referee. Both parties appealed.

This was an ACTION devisavit vel non, tried before Graves, J., at February Term, 1891, of Iredell Superior Court. The paper-writing, bearing date July 5th, 1888, together with a paper appended as a codicil, bearing date March 5th, 1889, purporting to be the last will and testament of W. J. Brawley, deceased, is without subscribing witnesses.

<p>Churches — Religious Societies — Trustee—Jurisdiction—Appeal.</p> <p>1. A duly appointed trustee of a religious society may maintain an action for the removal of faithless or incompetent trustees, and compel them to convey the property held by them to the purposes for which it was designed, and such trustee may also maintain an action to set up a lost deed executed for the benefit of the cestui que trust.</p> <p>2. In the absence of such trustee and a governing body authorized to appoint, any member of a religious society has such a beneficial interest as will enable him, in behalf of fellow-members, to maintain such action as may be necessary to protect their common interest.</p> <p>3. A trustee of a religious society instituted a special proceeding, in which he demanded judgment that certain other trustees should be removed and that a lost deed should be set up and a trust therein declared. A demurrer for misjoinder of causes of action was sustained by the Clerk, and affirmed on appeal by the Judge: Held, (1) that there was no error in sustaining the demurrer; (2) that the question of jurisdiction being involved in the appeal from the Clerk, the plaintiff, on the hearing thereof, would not be allowed to abandon the causes of action of which the Clerk could not take cognizance, and rely upon that of which he had jurisdiction in order to acquire a status in the Court in term time.</p>

Action to recover land, tried at March Term, 1891, of Alamance Superior Court, Boykin, J., presiding.

This was an ACTION for possession of land, tried at the November Term, 1890, of the Superior Court of Cuberland County, before MacRae, J. The complaint was in the usual form adopted in such cases, and the answer contained only a general denial of the allegations of title and right to possession and damages for detention. In addition to the three issues involving these denials, the following was submitted by the Court, numbered 4, viz.: “4.

Civil ACTION, heard upon exceptions to the referee’s report at November Term, 189d, of Cumberland Superior Court; MacRae, J., presiding. The defendants’ exceptions were overruled, and they appealed from the judgment confirming .the report.

Civil action, tried at May Term, 1891, of Cumberland Superior Court, Armfield, J., presiding. The plaintiff brought this action to recover the sum of $1,500, which the defendant, by its policy of insurance, agreed and promised to pay them in case of the loss of their goods therein specified, by fire, in the contingency and as therein provided and stipulated.

Civil actioN, tried at May Term, 1891, of Cumberland Superior Court, before Armfield, J. The'facts necessary to an understanding of the opinion are as follows: This was one of three civil actions commenced and tried at the same time in the court of a Justice of the Peace of Cumberland County, in all of which plaintiffs recovered judgment, and the defendant appealed to the Superior Court.

<p>Burning Woods — Penalty—Jurisdiction—Venue.</p> <p>The Code, § 191, providing that actions for the recovery of penalties, must be brought in the county where the cause of action arose, applies to those actions of which the Superior Court has jurisdiction; it does not embrace those within the jurisdiction of Justices of the Peace.</p>

, presiding. The plaintiffs are creditors of the defendant corporation, having debts for very considerable sums of money.

This was a civil ACTION, tried before Philips, J., at the Spring Term, 1890, of Catawba Superior Court.

Civil action, to recover damages alleged (o have been received by reason of the negligence of defendant’s agents and servants, tried at Spring Term, 1891, of Mecklenburg Superior Court, Merrimou, J., presiding. The plaintiff .testified : “On the 18th of November, 1889, I was in Charlotte; came in a buggy; I had business beyond defendant’s crossing of East Second street.

Civil ACTION, tried at Fall Term, 1890, of Halifax Superior Court-, Whitaker, J., presiding. The plaintiffs brought this action to recover damages for alleged injuriesto the feme plaintiff's land, brick-yard and brick, situate on the same, a short distance above the place where the defendant’s railroad crosses Chockeyotte Creek on an arched culvert.

This was a civil ACTION, tried before Merrimon, J., at February Term, 1891, of MeckleNburg Superior Court. The plaintiff was the husband of the defendant, and he brought this action against her to obtain a divorce from the bonds of matrimony, because of her alleged adulterous intercourse from time to time with Henry Palmer. The defendant broadly denied the material allegations of the complaint.

This was a civil action tried before Merrimon, J., at Spring Term, 1891, of Mecklenburg Superior Court, brought to recover damages for injury to the plaintiff occasioned by the alleged negligence of the defendant. In the complaint it is alleged — Third.

Civil aotioN, commenced before a Justice of the Peace, and tried on appeal at Spring Term, 1891, of Meckxekburg Superior Court, before Merrirnon, J. The plaintiffs seek to recover the sum of $42.50, with interest at eight per cent, from March 30th, 1880, alleged to be due by note of defendant made payable on that day to H. A. Kluttz, and endorsed to plaintiffs for value after maturity.

<p>This was a civil ACTION, brought to set aside a deed made by the male defendant to his wife, for fraud, and for possession of the land conveyed by said deed, tried at the August Term, 1891, of the Superior Court of Cleveland County, before Hoke, J.</p> <p>The plaintiff sold and conveyed the land in dispute to his son A. A. Peeler, and took the note of the latter for the purchase-money. He ultimately sued for a balance due in April, 1889, obtained judgment and soon after caused execution to be issued thereon. At the sale under the execution the plaintiff bought, taking the Sheriff’s deed, bearing date July, 1889. Meantime the defendant A. A. Peeler, in February, 1889, executed a deed for the land • to his wife and co-defendant A. C. Peeler, the consideration being a debt which he alleged he owed her.</p> <p>The material portions of the charge to which defendants excepted were as follows :</p> <p>Was the deed of February, 1889, from A. A. Peeler to his wife a fraudulent deed ?</p> <p>The burden of the issue is on the plaintiff. The presumption is that a transaction is honest, and when a party alleges fraud, the law puts upon him the burden of proving his allegation.</p> <p>When, however, a grantor is proved to be insolvent, and has made a deed for a large part of his property to his wife, leaving himself not sufficient to pay his debts, and such wife comes in Court claiming to be a bona fide purchaser, the law requires the jury to look upon the transaction with suspicion, and to give the matter close scrutiny, and requires her under such circumstances to make her claims good, and to satisfy the jury, by a preponderance of the evidence, that she has paid a fair price for the land; that the consideration is not pretended but real, and if it is claimed to have been made in the payment of an honest debt, the wife must satisfy the jury that the debt was a real debt,'as claimed, for the purchase-price of the land.</p> <p>Now if you are satisfied, by a preponderance of the evidence, that the husband was indebted to plaintiff in a large amount— two thousand dollars and more — and that he was insolvent, and under such circumstances conveyed the property to his wife in payment of his debt to her, but with intent to hinder and delay, or defeat plaintiff in the recovery of his debt, and the wife participated in this purpose of his, or if she knew it was being done by him to hinder or delay the plaintiff in collecting his debt, then the deed would be fraudulent, even though there was a valid consideration.</p> <p>If, however, the fraudulent purpose existed on his part, and such purpose was not participated in by the wife, and not known to her, then the deed would be good. To vitiate the deed the fraudulent purpose must have existed with both the grantor and grantee — the husband and the wife — or it must have existed with the husband and been known to the wife. The notice to the wife does not mean she must know, as a matter of law, the deed was fraudulent, but did she know of the circumstances which the law says makes the deed fraudulent, if it was so, on part of the husband.</p> <p>The defendant excepted to his Honor’s charge in the following particulars:</p> <p>1. In that his Honor charged the jury as follows : “ In the case at bar you are instructed to regard this alleged purchase by his wife with suspicion, and give the matter a careful scrutiny;” and afterwards charged the jury, if they believed the evidence that “there was a boriafide debt of the husband to the wife, and if such debt was given for the land, then suspicion arising from the relationship would be removed, and the question would be decided upon the first principle that he who alleges fraud should prove it.”</p> <p>2. That his Honor did not charge, as requested by defendant, that if the jury believed the evidence the deed alleged to be fraudulent was made in payment of such bona fide debt.</p> <p>3. That his Honor did not charge that if the jury believed that there was a previous verbal agreement between the husband and wife, that the husband should convey to the wife so much of the land in controversy as would pay her debt at the price of ten dollars per acre; that his Honor charged the jury that if the husband conveyed the property to his wife in payment of his debt to her, but with intent to hinder or delay or defeat plaintiff in the recovery of his debt, and the wife participated in this purpose of his, or if she knew it was being done by him to hinder or delay the plaintiff in collection of his debt, then the deed would be fraudulent, and your answer to the first issue should be “Yes.”</p> <p>There was a verdict for plaintiff, and from the judgment thereon the defendant appealed.</p>

<p>Deed — Priority from Registration under Act of 1885.</p> <p>Under the Act of 1885, ch. 147, providing that no deed shall be effective to pass title as against subsequent purchasers but from the registration thereof, the purchaser at execution sale who registers his deed prior to a deed from the defendant in execution to his wife, which was executed before the sale, acquires the title to the land; and the wife in possession of the land conjointly with her husband at the time of sale and of execution of the Sheriff’s deed to the plaintiff, is not within the saving clause of the act, as the plaintiff does not taire as purchaser from the “donor, bargainor or lessor,” as against a donee in possession under an. unregistered deed, but from the Sheriff, who is the agent of the law.</p>

This was a special proceeding for partition, instituted before the Clerk of the Superior Court of Ruthereord Count}’', and heard before’ Moke, J., at Chambers, July 7th, 1891. It appears that Isaac D. McClure died leaving a last will and testament, which was duly proven.

Civil actiox, tried before Hoke, J., at Fall Term, 1891, of MeckleNbu:rg Superior Court. The plaintiff brought this action to recover possession of the land described in the complaint. The defendant denies the material allegations of the complaint.

<p>Civil actioN, tried at Fall Term, 1891, of Mecklenburg Superior Court, Hoke, J., presiding.</p> <p>On the 12th of December, 1883, the defendant sold and undertook to convey to the plaintiff the tract of land described in the complaint with covenants of warranty of title in fee-simple, and that he was seized and had the right to convey, etc. The plaintiff alleges that the defendant did not have such title, and that he is as a consequence endam-aged to the amount of $1,667.50, etc.</p> <p>The defendant denies the material allegations of the complaint, and alleges: That prior to the year 1868, the land in question was owned in fee-simple by one Violet W. Alexander, who in that year died in the county of Mecklenburg, leaving a last will and testament, which was duly admitted to probate. That of the children of the said Violet W. Alex-der, mentioned in the said will, W. W. Alexander died in the life-time of the testatrix and without children; the others were living at her death; that prior to the 12th day of March, 1881, Dovey A. W. Cunningham, one of the daughters, and H. L. Alexander, one of the sons mentioned in said will, died intestate and without children; that on the said 12th day of March, 1881, the defendant purchased the land in question and received a deed in fee-simple for the same, executed by S. B. Alexander, Julia S. Smith, M. S. Alexander, A. L. Alexander, I. L. Hayes and husband W. J. Hayes, Junius W. Hayes and wife Lucy C. Playes, and John W. Hayes; that of the grantors in said deed W. J. Hayes is the husband of Isbella L. Hayes, and Junius W. Hayes and John W. Hayes are and were, at the making of said deed, the only children of Isabella; Lucy 0. Hayes is the wife of Junius W. Hayes; all the other grantors are the children of the said testatrix who were living on the 12th of March, 1881, when the said deed was executed to this defendant; that at the time the said deed was made, S. B. Alexander had infant children,.and still has, but none of the female grantors have children excepting Isabella Hayes, nor ever had any ; that the land in dispute is the land mentioned in the codicil to the will of Violet W. Alexander, and therein called. “ my farm.”</p> <p>The following is a copy of so much of the will of the testatrix above named as is material here:</p> <p>“ I give and bequeath to m3r executors one-eighth part of my estate to have and to hold to them, the survivors and survivor of them, his heirs and assigns, upon the following trust, that is to say, upon trust that they, the said trustees, do from time to time, during the natural life of my daughter Dovey A. W. Cunningham, pay and dispose of the annual profits arising .therefrom upon her sole and separate receipts whenever they may think she stands in need of the same, and permit her to receive and take the profits to and for her sole and separate use and benefit, to the end and intent that this or any other part of my estate that may happen to fall to her part or portion may not be subject or liable to the control, order, direction, debts or engagements of her husband, either present or future; and from and after the decease of my daughter Dovey A. W. Cunningham, it is my will that this one-eighth part be divided between all my children as hereafter prescribed. I give and bequeath to my daughters, Isabella L. ITayes, Mary S. Alexander, Julia S. Smith and Alice L. Alexander, four-eighths of all my estate, both real and personal, for their natural lives for their sole and separate use, free from the control of any husband that they may have now or hereafter, then to be equally divided among their respective children, and if any of them should die not leaving children, then her or their portion to be equally divided among my children living and the children of my children dead, they representing their ancestors. I give and bequeath to my sons, PI. L. Alexander, W. W. Alexander and S. B. Alexander, three-eighths of all my estate, both real and personal, to them and their heirs and assigns, to be equally divided^ share and share alike, but if any of my sons shall die without having children or disposing of the same, then his or their share shall be equally divided among my daughters and sons as aforesaid equally, and their children by representation.”</p> <p>The following is a copy of the codicil to the will, parts of which are above recited:</p> <p>“My house and lot, and all of my furniture and farm to remain as it is so that all of them that wish can have a home on it, unless they wish to dispose of it otherwise. My lands in Tennessee I will and bequeath to my son S. B. Alexander.</p> <p>Signed, V. W. AlexaNDer.” [Seal.]</p> <p>The plaintiff demurred to the answer, assigning divers grounds of demurrer.</p> <p>The Court sustained the demurrer upon grounds specified, and entered judgment for the plaintiff. The defendant excepted and appealed.</p>

<p>Civil action, tried before Bynum, J., at Fall Term, 1891, of McDowell ¡¡Superior Court.</p> <p>It appears that F. T. Sanford contracted with the defendant to construct, upon its land specified in the complaint and situate in the county of McDowell, a building for the purposes of a hotel for the price of $31,000, and the plaintiff, a subcontractor, furnished to the said Sanford, for the purposes„of said building, materials of the value of $4,011.29, which sum remains due to the plaintiff, less $1,500 paid about the 10th of December, 1890; that on the last-named day, the plaintiff duly notified the defendant that the said Sanford, contractor, owed to it for such materials furnished and used in the building, the sum of $2,511.29; that at the time of such notification the defendant owed the said Sanford, as contractor, the sum of $9,025; that the plaintiff has demanded of the defendant and the said Sanford, before the bringing of. this action, the money so due, and they have refused to pay the same; that on the 11th day of August, 1891, and within twelve months next after so furnishing said materials so used, the plaintiff, for the purpose of creating and perfecting a subcontractor’s lien upon the said land and building, for the sum of money so due it, duly filed in the Superior Court Clerk’s office of the said county of McDowell its claim as required by the statute (The Code, § 1784).</p> <p>It further appears that on the 10th day of August, 1891, the defendant executed to the said Sanford its promissory note, as such contractor, for the sum of $24,040.40, and exe. cuted to a trustee a deed conveying all its property, including said land and building, to secure the same; that the plaintiff had so notified the defendant of its claim against the said Sanford before the making of said note and deed; that said Sanford abandoned the completion of said building, left the State, assigned said note and security to his wife, and she assigned the same to a bank in the State of Georgia for value ; that the defendant is insolvent; that the building is not half finished, and is going rapidly to decay and ruin.</p> <p>The plaintiff demands judgment for its debt, and the enforcement of its lien, etc.</p> <p>The defendant insisted that, under the facts admitted, no sale of the property could be ordered by the Court—</p> <p>First. Because the contract between the Hotel Company and Sanford is still executory, and nothing could be s)ld except an equity of redemption, the legal title not being in the trustee, he not being a party to this action, and the legal title being outstanding, the Court could not authorize a sale and thus sacrifice the defendant’s property by enforcing a sale of propert}7 clouded by this adverse claim.</p> <p>Second. That the property could not be sold until the building was finished and the contract fully executed.</p> <p>Third. That the remedy was against Sanford, and not against the Hotel Company.</p> <p>Fourth. That no title could pass to the purchaser as against the right of Sanford, neither he, they, nor the trustee having been made parties to this action.</p> <p>The Court gave judgment for the plaintiff, and the defendant, having excepted, appealed.</p>

This was a civil aotion for trespass upon land, tried at the Pall Term, 1891, of the Superior Court of Watauga County, before Bynum, J. The plaintiff offered in evidence a grant from the State to Richard Greene, dated November 26th, 1802; then mesne conveyances from Richard Greene to Isaac Greene; from Isaac Greene to Elisha P. Miller; from the executor of Elisha P. Miller to James Steele; from James Steele and wife to Lewis Harris, and from Lewis Harris and wife to/erne…

Civil action, tried before Brown, J., at Spring Term, 1891, of Cherokee Superior Court.

Special proceeding- for partition, begun before the Clerk of the Superior Court of Cherokee County, and heard upon appeal before Brown, J., at Chambers. On the said 12th day of February, 1891, the return day of the summons, the defendants Warlick appeared by Mr. Ben.

This was a special PROCEEDING for dower, commenced before the Clerk of the Superior Court of Haywood County, and heard upon demurrer at Fall Term, 1891, Merrimon, J., presiding. The petition alleged that one Owens had died seized of certain lands; that he left surviving him his wife, who was entitled to dower; that she had sold and conveyed her dower right to the petitioners, who now prayed that dower might be assigned them. The defendants demurred, for that— 1.

<p>Will — Devise — Guardian and Ward — Administration — Statute of Limitations.</p> <p>1. Under a devise, in a residuary clause, that the surplus of testator’s estate should be equally divided between P., M. and the children of S., “ share and share alike, to each and every of them, their executors, administrators and assignees absolutely forever,” the devisees took per capita, aud a child of S., born after the testator, was entitled to share with the other children.</p> <p>2. If a guardian has received from an executor or administrator a less sum in settlement than was due. the ward may sue either the guardian or the executor or administrator for the unpaid amount; and the fact that a settlement had been made between the guardian and the executor is not conclusive in an action by the ward against such executor or administrator, its only effect being to •impose the burden on the ward of showing that the settlement with the guardian was not a complete payment of the amount due.</p> <p>3. Where an executor filed his final account in 1876, and the distribu-tees, who then and until they became of age, had a guardian, did not bring suit for an alleged balance due under the testator’s will until 1891: Held, the action was barred by the statute of limitations.</p>

This was a civil action to recover land, tried before Mer-rimon, J, at Spring Term, 1891, of Rutherford Superior Court. The plaintiff offered in evidence what purported to be the original records in a suit, or proceeding, in the old court of equity held for the county of Rutherford at Spring Session, 1866, and continuing for some time thereafter, having been transferred to the present Superior Court, in case of the heirs at law of John Geer.

Civil action for the recovery of land, tried before Merri-mon, J., at Fall Term, 1891, of Haywood Superior Court. Upon an intimation of the Court that, upon the plaintiff’s evidence, he was not entitled to recover, the plaintiff submitted to a nonsuit and appealed.

This was a civil action, tried before Brown, J, at Spring Term, 1891, of Buncombe Superior Court. Upon the facts agreed, there was a judgment for the defendant, from which the plaintiff appealed. The facts are sufficiently stated in the opinion.

<p>This was a civil action for injunction, heard before Mer-rimon, J., at Chambers, on November 28th, 1891.</p> <p>The piaintiff corporation has power, and it is its purpose, to construct and operate street railways over the public streets and alleys of the defendant -when, where and as the parties may agree. • The plaintiff had permission and right to build and use such a railway on and along South Main street, and on the 13th day of November, 1891, the defendant, by a proper resolution, extended and enlarged the rights of the plaintiff in such connection so as to allow it the privilege and right “ to construct and operate a branch or branches of its railway across Valley street and Atkins street, or either of them.”</p> <p>The plaintiff having employed laborers, procured implements, materials and other things appropriate for the purpose, was proceeding to construct such branch railways when, on the 14th day of November, 1891, the officers and agents of the defendant, without notice to the plaintiff, made an order, of which the following is a copy:</p> <p>“Be it ordained that all rights and privileges granted to the Asheville Street Railway Company by an order of this Board, made on the 13th day of October, 1891, be and the same are hereb3r, in all things, repealed and revoked. Be it further ordained that the Chief of Police be and he is hereby instructed aud directed and ordered to prevent the said Ashe-ville Street Railway Company, its agents or assigns and all other persons, from in any manner interfering with any streets of this city, or in any manner building, erecting, or attempting to build or to erect any street railway or any railway over or across any street in this city; and that the said Chief of Police, with all other policemen of this city, and all other citizens, shall enforce this ordinance and all other ordinances in reference to said matters, under penalty of the law.”</p> <p>The defendant’s police force immediately in pursuance of such order proceeded to execute the same, and forbade the plaintiff and its agents to proceed with its work, and threatened to arrest its agents and to use such force as might be necessary to accomplish that purpose. Thereupon the plaintiff brought this action, one purpose of which is to obtain relief by injunction pending the action.</p> <p>The defendant by its answer admits some of the material allegations of the complaint, denies others and avers matters and facts to some extent, and in some respects, confessing and avoiding the plaintiff’s cause of action.</p> <p>The Court heard the plaintiff’s motion for an injunction restraining the defendant from such interference' with its rights upon the complaint and answer, used as affidavits, and divers other affidavits, and upon consideration allowed the motion. The defendant excepted and appealed.</p>

This was a civil action, heard upon complaint and demurrer, before Merrim,on, J., at Fall Term, 1891, of Haywood Superior Court. The plaintiff' complained as follows: 1. That the plaintiff is the administratrix of the estate of Robert B. Conley, deceased. 2.

Civil ACTION, commenced before a Justice of the Peace and tried at March Term, 1891, of Buncombe Superior Court, Brown, J, presiding. The plaintiff brought this action in the court of a Justice of the Peace to recover $200, money realized by the defendant for certain timber logs of the plaintiff, which, it is alleged, he took, used and sold, etc. The pleadings raised issues of fact.

Civil actioN, tried at Pall Term, 1891, of Haywood Superior Court, Merrimon, J., presiding.

<p>Civil ACTION, tried at November Term, 1890, of MadisoN Superior Court, Philips, J., presiding.</p> <p>The plaintiff sued to recover the amount alleged to be due upon a bill of exchange drawn by one W. E. Watkins upon defendant in favor of plaintiff for $950, ninety days after date, upon which there was made, on same day, the following indorsement:</p> <p>“Accepted, payable at First National Bank, N. Y.</p> <p>Southern Inprovement Company. ■</p> <p>By W. E. Watkins.”</p> <p>The defendant denied the alleged indebtedness, and the authority of Watkins to draw the bill, or to accept it ; and by way of counter-claim further allegéd:</p> <p>“ That the plaintiff H. T. Rurnbough is indebted, to the defendant in the sum of three hundred and seventy-five, dollars, and interest thereon from the __ day of_, 1&88, at six per centum per annum, on account of having, as pretended tax collector of the municipal corporation, as by him pretended, and by the defendant mistakingly believed, of Hot Springs in said county of Madison, on that date collected and received from the defendant that amount of money which he pretended and asserted was due and legally owing from the defendant to such corporation as taxes for that year upon defendant’s property therein situate; whereas, as defendant is informed and believes, the said H. T. Rum-bough was not such tax collector as he asserted and pretended himself to be, as aforesaid, and said sum was not so due from the defendant, and there was no such municipal corporation as by him claimed and alleged, and this the defendant pleads and sets up by way of counter-claim, and demands that it have and recover of the plaintiff in this action said sum of three hundred and seventy-five dollars, so paid to him as taxes, as aforesaid, with interest thereon at the rate of six per centum per annum from said __ day of_, 1888.”</p> <p>To this counter-claim the plaintiff made the following replication :</p> <p>“ Replying to the counter-claim set up in paragraph number 8, the plaintiff says that it is true that he did collect from the defendant, some time prior to the drawing of said draft, the sum of $375 as tax collector of Hot Springs, a municipal corporation supposed to exist, it being understood bjr plaintiff and defendant, and the public generally, that the said town of Hot Springs had been duly chartered by an act of the Legislature of this State at its session of 1887, and invested with the power to levy and collect taxes; that $325 of said money collected as taxes was expended on the construction of a bridge across Spring Creek on the premises of the defendant corporation, and after said construction, and prior to the drawing of said draft, the defendant consented and ratified the said expenditure on the grounds that they were greatly benefited thereby, and at the time of drawdng said, draft no claim thereto was presented against plaintiff; that the balance of said money -was expended in the payment of services rendered by the police force of said town, which was greatly beneficial to said defendant corporation, who owned a hotel and the most of the property in said town.”</p> <p>The Court settled the issues after the evidence was closed as follows, the defendant excepting :</p> <p>1. Was the bill of exchange, described in the complaint, drawn by W. E. Watkins and accepted by him for the Southern Improvement Company, as alleged in the complaint?</p> <p>2. Was W. E. Watkins authorized and empowered to draw and- accept said bill of exchange for the Southern Improvement Company?</p> <p>3. Has said bill of exchange, or any part thereof, been paid ?</p> <p>4. Is the plaintiff indebted to the defendant by reason of counter-claim, and if so, in what sum ?</p> <p>There was much and conflicting testimony offered by the parties respectively in support and denial of the alleged agency of Watkins, the plaintiff attempting to establish the fact by various acts of Watkins, and recognition of them by defendant in and about the management of its business. There was no evidence offered by either party upon the counter-claim.</p> <p>The defendant, among numerous instructions, asked the Court to 'charge—</p> <p>“That the defendant sets up a counter-claim for three hundred and seventy-five dollars, and the plaintiff leplies and admits the collection of this sum as alleged in defendant’s answer, and in his reply sets up new matter in avoidance. Under The Code the burden of proof is on the plaintiff to show the matters set up in avoidance in his reply. ITe has failed to introduce any evidence thereon or show this in any way, and his failure to do so makes him liable to the defendant for three hundred and seventy-five dollars on said counter-claim, and the jury should so find in answer to,the .fourth issue.</p> <p>4. In order to show that W. E. Watkins had an implied authorily to bind the defendant in the manner in which it is sought in this action to bind it, the plaintiff must show that he had theretofore undertaken to compromise and settle controverted claims against the defendant, and the defendant had recognized and honored such compromise and settlement, and that he had theretofore undertaken to accept drafts in the name of the defendant, and the defendant had honored such acceptance.</p> <p>5. In order to bind the defendant by showing acts of similar character theretofore done by W. E. Watkins in its name, and recognized and honored by it, the plaintiff must show that, at the time of the compromise and acceptance attempted by Watkins, the plaintiff was aware of some such previous act of Watkins and recognition by the defendant, and acted upon the faith thereof. •</p> <p>7. Whether an agency be inferred inductively from a series of services rendered by the agent to the principal with the latter’s assent, or whether we accept it from the principal’s express recognition of the agent as a permanent servant, the agency is not to be stretched beyond the line which these services indicate.</p> <p>8. Watkins might have been an agent of the defendant, and as such authorized to rent houses, collect rents, build roads, ask reduction of taxes, pay taxes and all bills by him made in doing such acts, and yet have had no authority to com promise an old controverted claim for furniture or articles for hotel use purchased by defendant, or to compromise a suit against defendant, or to accept a draft in the name of defendant.</p> <p>9. A general authority to transact business for the principal will not alone authorize the agent to bind him as a party to negotiable paper, and a general manager even has, as such, no authority to accept a bill in the name of his principal.”</p> <p>His Honor declined to give these instructions, and charged the jury as follows:</p> <p>2. “The burden of proof is upon the plaintiff. He must show, to the jury by a preponderance of testimony that W. E. Watkins was agent of the defendant company, and was authorized and empowered to draw and accept the bill. If-the jury are satisfied from the evidence, by a preponderance, that W. E. Watkins had general charge and management of the defendant’s business at Hot Springs, and that he had authority, general or special, to draw and accept the bill in question in the name of the defendant, then they will answer the second issue Yes. If not so satisfied, they will say No.</p> <p>2. The jury will confine their enquiry to the evidence introduced and heard by them. The pleadings in this case were not offered in evidence, and unless they were so offered they are not evidence. Smith v. Nimocks, 94 N. C., 243. There being no evidence before the jury on the counter-claim, the jury will answer the fourth issue No.”</p> <p>The jury found the first two issues in the affirmative; the third issue in the negative, and the fourth issue in the negative.</p> <p>The Court rendered the judgment, and defendant appealed.</p> <p>The defendant filed the following exceptions, amongothers:</p> <p>9. “The Court failed to explain to the jury what agency was, and what proof would be required to show an agency for doing the acts alleged, and submitted the question of agency, for the alleged purposes, to the jury without explanation.-</p> <p>10. The Court did not explain and declare the law arising upon the evidence in relation to the question of authority.</p> <p>11. The Court told the jury that the pleadings not having been introduced in evidence, and there being no evidence before the jury on the counter-claim, the jury will answer the fourth issue No.”</p>

This was a petition for dower begun before the Clerk of the Superior Court of McDowell County, transferred on issues to Term, and tried before Hoke, J., at Spring Term, 1891, of said Court. The plaintiff brought this special proceeding to obtain dower in the lands specified in the petition as the widow of E. IT. Grant, who died intestate. The defendants are his heirs at law.

Issues arising from a special proceeding for partition, tried at Fall Term, 1891, of Burke Superior Court, Bynum, J., presiding.

MotioN to attach appellant plaintiff for contempt, heard at Spring Term, 1891, of Bukke Superior Court, Hoke, J., presiding.

This was a criminal action, begun before a Justice of the Peace and carried thence by appeal to the Criminal Court of New Hanover, where it was tried before Meares, J., at July Term, 1891.

This was a CRIMINAL ACTION, tried at July Term, 1891, of the Criminal Court of New PIanover, County, Meares, J., presiding, similar to that of State v. French, ante, except that the jury found in the special verdict these additional facts: “ That during the said six months the said defendants also bought and sold within the -said State large quantities of goods, wares and merchandise, including farm products which were not purchased from the producer.

CRIMINAL action, tried at July Term, 1891, of the Criminal Court of New Hanovek, Meares, J., presiding.

This was an indictment, tried at October Term, 1891, of Buncombe Criminal Court, Garter, J., presiding.

CRIMINAL ACTION, tried at Spring Term, 1891, of Buree Superior Court, EoJte, J., presiding. The evidence tended to prove that in October of 1887 the prosecutrix leased to the defendant for the term of three years seven acres of land, “ indicated by certain natural points and objects” that fixed the limits thereof, the same being a part of a larger tract containing thirty-five acres, and he was expressly forbidden to cut any timber outside of' the||land leased to him.

<p>INDICTMENT against defendant and Susan E. Pickard for fornication and adultery, tried before Meares, J., at August Term, 1891, of Mecklenburg Criminal Court.</p> <p>The defendant aloné was on trial.</p> <p>Before the plea of not guilty was entered, the defendant moved that the Court refuse to take cognizance of the criminal action, on the ground that the defendant W. T. Cutshall was brought here from the State of Tennessee upon a requisition for bigamy, issued by the Governor of North Carolina upon the Governor of Tennessee, for the execution of which one C. W. Rivenbank was appointed agent for this State. That in proof of said allegation it was shown that said State agent went to Tennessee with said requisition ; that upon the arrival of said C. W. Rivenbank at Knoxville, Tenn., he found the defendant under arrest and in the custody of the Deputy Sheriff, who had arrested him upon a telegram upon the said charge of bigamy; that said Rivenbank appealed to • the defendant not to require him to apply to the Governor of Tennessee to get an endorsement of said requisition from the Governor of Tennessee, as it would only operate as a delay in taking the defendant; and requested the defendant to come to North Carolina upon the requisition as it stood, on the ground that the grandson of the said Rivenbank had died in North Carolina and he, Rivenbank, was anxious to return to North Carolina as soon as possible; that Cutshall agreed to and did come with said C. W. Rivenbank to North Carolina.</p> <p>This motion was overruled by the Court and the case ordered to proceed, to which ruling the defendant excepted.</p> <p>Upon the plea of not guilty, the jury rendered the following special verdict:</p> <p>“ That before the 9th day of February, 1890, the defendant Cutshall represented to one Susan E. Pickard that he was a single man, and she being a single woman induced her thereby to enter into a marriage with him, she, the said Susan, fully believing him, the said Cutshall, at the time of the making of said representations and when the marriage ■was entered into, to be a single man. That the defendant Cutshall and the said Susan E. Pickard were married in York County, S. C., on said day, the ceremony being performed by a regularly ordained minister of the Gospel; that after the said marriage was celebrated, the defendant-and said Susan E. Pickard cohabited for some time as man and wife in. the county of Mecklenburg and State of North Carolina, and before the finding of this bill;-that at the time they so cohabited, and whilst cohabiting, the said Susan E. Pickard honestly believed that the defendant was her lawful husband,-and the jury find that she would not have so cohabited with defendant but for such belief; the jury further find that the defendant, when he and said Susan E. Pickard were married, and whilst they cohabited together, was a married man, and that said Susan E. Pickard immediately upon ascertaining that fact dissolved the connection.</p> <p>Upon the foregoing facts, the jury are ignorant as to whether the defendant be guilty or not guilty of the offence charged against him, and thereupon pray the advice of the Court thereon. And for their verdict they do say that if upon the whole matter the Court shall be of opinion that ■ the defendant is guilty, they so find; otherwise, they find him not guilty.”</p> <p>Thé Court upon the foregoing special verdict, instructed the jury that the facts so found constituted the offence as charged in the bill of indictment, as to the defendant W. T. Cutshall, and thereupon the jury rendered a verdict of guilty as to said W. TÍ Cutshall, in manner and form as charged in the bill of indictment.</p> <p>There was a judgment upon the verdict, from which the defendant appealed.</p>

INDIctment for murder, tried at Fall Term, 1891, of Cherokee Superior Court, before Merrimon, J. The defendants were charged with the murder of Marion Cole in the county of Cherokee, in July, 1891.

<p>Bigamy — Indictment—Evidence—Defacto Officer — Juror, Qualification of— Variance — Instructions to Jury.</p> <p>1. To disqualify a juror of the regular panel for non-payment of taxes, it must appear that the failure to pay the taxes was for the fiscal year preceding the annual revision of the jury list, at which such juror was drawn.</p> <p>2. Upon the trial of an indictment for bigamy, it was not error to ref use to charge the jury that they could not convict unless they were satisfied, beyond a reasonable doubt, that the magistrate who solemnized the first marriage was duly appointed and qualified; it was sufficient proof of his official character to show that he was an officer defacto.</p> <p>8. It is not necessary, in an indictment for bigamy, to set out the name of the first wife, nor to negative that she had been divorced from defendant.</p> <p>4. The indictment charged the marriage to have been to Dixie Marshall, and the evidence showed her name to be Lee Emma Dixie Marshall: Held, to be no variance, as there was evidence that she was known to defendant and others by the name given in the bill.</p> <p>5. The evidence showing that there were a number of eye-witnesses to the marriage, and a certified copy of the license with return endorsed being produced, it was not error to charge the jury that it would be presumed the ceremony was valid.</p> <p>6. An indictment for bigamy which charges that defendant “ wilfully, unlawfully and feloniously, being a married man, did marry one W. during the life of his first wife,” sufficiently avers the first marriage.</p>

<p>Criminal action, tried at Spring Term, 1891, of Burice Superior Court, Hoke, J., presiding.</p> <p>The indictment charged that the defendant at, etc., “ unlawfully and wilfully did obstruct a certain public square and common public highway there siluate next and adjoining the court-house in the said county-seat of Morgauton, and leading to and away from, as well as around one side of the said court-house, from Sterling street in said town on the south-west side of said court-house into Green street on the south-east side of said court-house, by then and there digging holes in, and' erecting a line of posts in, upon and across said public square and common public highway, over,, upon and across which said public square and common public highway the citizená of the State' were and long have been accustomed to pass and repass, so that the citizens of the State were prevented from going in, upon and over said public square and common public highw-ay for a long-space of time, to-wit, for the space of a day, and could not go, return, pass and travel as they ought and were accustomed to do, and had a right to do, to the great damage and annoyance and to the common nuisance of the citizens and people of the State, and contrary to the peace and dignity of the State.”</p> <p>Defendant pleaded not guilty. Upon the trial there was a verdict of guilty, whereupon the defendant “moved to set aside the verdict on the ground that there was not sufficient evidence to justify and sustain it.” Motion overruled.</p> <p>The defendant then moved in arrest of judgment—</p> <p>1. For redundancy, in that the bill attempted to charge the defendant with two distinct and separate offences in one count, to-wit, a nuisance in obstructing a public common, and an obstruction to a public highway.</p> <p>2. For that the Court had no jurisdiction of the offence of obstructing a public highway. Motion denied.</p> <p>Thereupon the Court entered judgment against the defendant, who, having excepted, appealed to this Court.</p>

The defendant J. A. Lance and four others were indicted for assault and battery with deadly weapons upon J. H. Sumner, and tried at June Term, 1891, of the Criminal Court of Buncombe County, before Carter, J. There was a verdict of not guilty as to the defendant J. A. Lance, and the Solicitor consented to a verdict of not guilty as to the other defendants.

INDICTMENT for forcible trespass, tried before Bynum, J., at Fall Term, 1891, of Burke Superior Court. The jury returned a special verdict in the following words: “ The defendant John Gray stood a horse in Burke County in 1888 and 1889. S. A. Johnson had contracted with him for a season in each of said years at the sum of $10 for each year, the defendant insuring a colt for each year. There was no colt produced for the year 1888, but was for the year 1889.

<p>Evidence — Competency—Exception to Evidence.</p> <p>1. In an indictment for embezzlement, it is not competent for the defendant, on cross-examination of a witness who had testified that when he left the store there was a two dollar bill in the drawer and that when he returned it was gone, to ask the witness if he told the'defendant of the loss, and what was his explanation of it, the latter being the defen dan t’sdeclaration in his own interest and not a part of the res gestae.</p> <p>2. A statement of the evidence expected to be elicited must accompany an exception to the refusal to admit it.</p>

This was an indictment, tried before Graves, J., at Fall Term, 1891, of LINCOLN Superior Court.

INDICTMENT, tried before Bynum, J., at Fall Term, 1891, of Bukke Superior Court. The indictment charges that the defendant at, etc., “ wil-fully and unlawfullj’ did burn and destroy twenty bales of cotton, the property of the Dunevant Cotton Manufacturing Company, which said cotton being then and there secured on a'car, the property of the Richmond and Danville Railroad Company, against the form of the statute,” etc. The' defendant pleaded not guilty.

This was an iNdictmekt for a violation of a city ordinance, tried on appeal from the Mayor of Winston, at the Spring Term, 1891, of the Superior Court of Fobsyti-i County, before Bynum, J. The ordinance imposed a penalty for driving or leading horses on a sidewalk, and it was admitted that the defend-act’s driver, under his order, drove his wagon partly on a sidewalk for a distance of ninety feet along the street.

INDICTMENT for forcible entry, tried before Graves, J., at Spring Term, 1891, of Tredell Superior Court.

<p>Character — Evidence.</p> <p>On the trial of an indictment for burning a barn, the defendant offered evidence to prove his good character; the State then introduced evidence, the defendant objecting, tending to show that .defendant, shortly before the burning, made profane and violent declarations in respect to the disturbances in the neighborhood, and that a day or two after the burning, when defendant was arrested, he was found before daylight in company with several other per-sous, some of whom were armed with guns: Held, that although the evidence was slight and not very relevant, it was competent as bearing upon the character of the defendant, especially when the Court charged the jury to consider it with great caution.</p>

<p>Governor — Power to Pardon and Commute■ — Appeal.</p> <p>The Govei'nor, after conviction for a criminal offence, has the power to commute the sentence of the Court, although an appeal is pending in the Supreme Court; and this fact being made properly to appear, the appellant will be allowed to withdraw his appeal.</p>

This was a CRIMINAL action for violation of section 1120 óf The Code, tried before Graves, J., at February Term, 1891, of Rowan Superior Court, on defendant’s appeal from a Justice of the Peace.

<p>INDICTMENT for slandering an innocent woman, triedjoefore Graves, J., at Spring Term, 1891, of Montgomery Superior' Court.</p>

<p>This was a Motion in the Supreme Court for a certiorari. The facts are stated in the opinion.</p>

This was an INDICTMENT for an assault with intent to commit rape upon one Susan Goss, tried at the July Term, 1891, of the Superior Court of GRANViLLE-County, before Winston, J. The defendant is a physician, and had been called in the evening to attend a brother of the girl upon whom the assault was charged to have been committed. The brother lived about one hundred yards from the house of his father, where the girl lived.

CriMinal action, tried at March Term, 1891, of Randolph Superior Court, Graves, J., presiding. The prosecution was instituted under ch. 51, Laws 1889.

CRIMINAL action, heard atSeptember Term, 1891, of Wake Superior Court, Whitaker, J., presiding, upon motion to quash, which was allowed, and the State appealed. The indictment charged the perjury was committed “upon the trial of an action in the court of Robert Sanders and W.R. Creech, Justices of the Peace, in and for the said county> acting and sitting together.”

Proceeding in bastardy, tried before Boykin, /., upon appeal from a Justice of the Peace, at March Term, 1891, of Alamance Superior Court. The State offered the affidavit of Georgiana Hunter, in which she stated, that she had been delivered of a bastard child on the 21st of June, 1889; that she was a single woman; that the said bastard child was liable to become a charge to the county, and that the defendant T. N. Williams was the father of the child.

INDICTMENT against K. C. Pope and Nettie Dunn for fornication and adultery, tried before Connor, J., at April Term, 1891, of Edgecombe Superior Court. The defendant Pope alone was on trial. There was a verdict of guilty and judgment, from which he appealed to this Court.

Proceeding- in bastardy, tried upon appeal from, a Justice of the Peace, before Boykin, J., at August Term, 1891, of DupuN Superior Court. When the case was called for trial,‘the defendant moved to dismiss the appeal for want of notice to him.

<p>Criminal action for assault with a deadly weapon, tried before Boykin, J., at August Term, 1891, of Moore Superior Court.</p> <p>It appears in evidence that defendant’s hogs had been impounded by the Town Marshal of Carthage and were in his custody. The Marshal and two of the Town Commissioners, ■who were near the pound, saw the defendant going in the direction of the pound at night, and the defendant swore, in their presence, that unless the Marshal turned his hogs out he would liberate them, and thereupon proceeded to the pound and attempted to break the pound to turn the hogs out. The Marshal and the two Commissioners came up, and the Marshal ordered the defendant to desist; he refused to desist; the Marshal threatened to arrest him if he persisted in breaking the pound. There was also evidence that the Marshal flourished a pistol when he threatened to arrest the defendant, who, thereupon, assaulted the Marshal with a piece of scant-ling drawn in a striking attitude within striking distance. The Marshal had no warrant. The defendant offered to introduce the ordinance under which his hogs had been impounded, for the purpose of showing that said ordinance was void. The Court refused to admit the evidence. The exception for such refusal is the only exception presented for review. The case states that there was no exception to the charge.</p> <p>The defendant moved for a certiorari, as stated in the opinion.</p>

This was a CRIMINAL ACTION for failure to work on a public road, tried on appeal from a Justice of the Peace, before Winston, J., at August Term, 1891, of ORANGE Superior Court. The facts are sufficiently stated in the opinion.

CRIMINAL action, tried before Bryan, J., at May Term, 1891, of Beaufort Superior Court. The defendant is indicted for obstructing a public road.

<p>This was a criminal action for the statutory offence created by chapter 181 of the Laws of 1889, tried at the Spring Term, 1891, of the Superior Court of Washington County, before Bryan, J.</p> <p>The indictment was in form as follows:</p> <p>“The jurors for the State, etc., * * * present that L. W. Van Doran, in Washington County, on the 1st day of March, 1891, unlawfully and wilfully did practice, or attempt to practice, medicine or surgery, the said L. W. Van Doran not then and there Laving produced and exhibited before the Clerk of the Superior Court of said county a license obtained from the Board of Medical Examiners of the State of North Carolina, or a diploma issued by a regular medical college prior to the 7th day of March, 1885, nor made oath that he was practicing medicine or surgery in the State prior to said 7th day of March, 1885, and not then and there having obtained from the said Clerk of the Court a certificate of registration, and not then and there having a temporary license so to practice medicine or surgery, contrary to the statute in such cases made and provided, and against the peace and dignity of the State.”</p> <p>It was in evidence that the defendant claimed to have gradiiated at a medical college in Chicago, and to have lost his diploma.- There was no evidence of a license from the Medical Board of North Carolina, but the defendant had applied to the Clerk to be registered as a physician, and his application had been refused.</p>

CRIMINAL action, tried before Whitaker, J., at the June Term, 1891, of the Superior Court of Pitt County. The defendant was indicted for attempting to injure and destroy the reputation of an innocent woman, under section 1113 of The Code.

This was an indictment for larceny of two oxen, tried at the Pall Term, 1891, of the Superior Court of Pitt County, before Connor, J. Other testimony having been offered tending to prove the guilt of defendant, the Solicitor was allowed to show that after the defendant had been arrested on a Justice’s warrant and committed to jail to await a trial upon the charge upon which he was then arraigned, be was taken by virtue of a writ of habeas corpus ad testificandum, under…

This was an indictment for a secret assault (drawn under chapter 32, Laws of 1887), tried at the Fall Term, 1891, of the Superior Court of Pitt County, before Connor, J. The prosecutor testified, among other things, that the defendant lived near to him in the same township, in Pitt County; was known to him and had traded at his store, and that on the 26th of May previous he was going from his home to his store, about 7:30 p. m., when some one, who was standing behind a…