Volume 110 — North Carolina Reports

Civil action, tried at February Term, 1891, of Mecklen-burg Superior Court, before Merrimon, J. The action is brought to recover money due on a joint promissory bond executed by Mrs. M. K. Barkley and her husband James A. Barkley, the intestate of the defendant Derr. Judgment was rendered against Mrs. Barkley.

This was a controversy submitted without action at Spring Term, 1892, of Wake Superior Court, Connor, J., presiding. The question presented arose in the construction of item 15 of the will of Dr. J. 0.

<p>Civil actiont, heard upon complaint and demurrer at May Term, 1891, of Cumberland Superior Court, Armfield, J., presiding.</p> <p>The complaint alleges, in substance, that the defendant’s homestead and personal property exemption were duly laid off to him on the 20th day of April, 1885; that the homestead embraced the land specified; that afterwards, the dwellings and buildings so laid off were burned and destroyed ; that at the time of the said laying off the plaintiff was not a creditor of the defendant; that after such buildings were so burned and destroyed, the defendant erected on the said homestead land a large and valuable dwelling-house, making the land and dwelling thereon of the value of $2,500; that afterwards, the plaintiff obtained his judgment for $978.20, and interest and costs in the Superior Court of the countv of Cumberland, against the defendant and another, and the same was duly docketed on the 6th day of May, 1889; that this judgment has not been paid; that an execution was issued thereupon, and the same had been returned unsatisfied; that the said land and premises have not, in legal effect, ever been laid off to the defendant as and for his homestead; that the plaintiff never had any notice of the laying off of the same; that the improvements on the said land have been placed there since the laying off of the said homestead, etc. The plaintiff demands judgment that the defendant’s homestead be re-appraised and laid off to him, and that any surplus of the premises be sold to satisfy the plaintiff’s said judgment, and for general relief, etc.</p> <p>The defendant demurs to the complaint, and assigns as ground of his demurrer that the said premises were laid off to him, as appears by the complaint, on the 20th of April, 1885, as and for his homestead, and he is entitled to have the same exempt from sale under execution or other final process, etc., by virtue of the Constitution, etc. The Court sustained the demurrer, and gave judgment accordingly. The plaintiff excepted, and appealed.</p>

MotioN to set aside sale of lands, heard upon appeal from. Clerk, by Whitaker, J., at October Term, 1891, of Wake Superior Court.

Motion to set aside judgment confessed without action, heard before Whitaker, J., at August Term, 1891, of Har-Nett Superior Court.

MotioN to set aside a judgment heard at August Term, 1891, of HarNett Superior Court, before Whitaker, J. The judgment which gave rise to the controversy was for the sum of $200, and purported to have been confessed by the defendant company before the Clerk of the Superior Court of Harnett County in favor of the plaintiff. The Court held that the judgment was null and void, and so declared, and the plaintiff appealed.

This is a proceeding supplementary to the execution, to subject to the payment of the plaintiff’s judgment so much of a fund bequeathed to the defendant by the last will and testament of Mary A. Smith, deceased, as may be necessary for that purpose, heard before Connor, J., at Chambers, in Raleigh, January 16th, 1892 It appears that the said Mary A. by her' will devised and bequeathed “to the Trustees of the University of North Carolina, to be invested by that corporation in…

<p>Civil action, tried at Fall Term, 1891,-of Halifax Superior Court, Bryan, J, presiding.</p> <p>This action is founded upon the promissory note of the defendant for $418, due the 1st of March, 1888, executed to the plaintiff’s agent, who endorsed the same to it. The defendant admitted the execution of the note as alleged, but alleged as a counter-claim that the consideration thereof was the plaintiff’s agreement to supply him with “ten tons of genuine Peruvian guano”; that it failed to deliver such guano, but did deliver that quantity of an inferior fertilizer of value not greater than $15 per ton; that he was greatly endamaged, put to costs, etc. It appears that the defendant used the fertilizer he so received, and the jury found by their verdict that it was of the value of $32 per ton. They further found that the defendant had not suffered damage. The Court gave judgment in favor of the plaintiff for $320, interest and costs. The defendant demanded judgment in his favor upon the verdict, upon the ground that the jury found that the plaintiff did not deliver Peruvian guano. Both parties appealed. The Court gave the jury pertinent instructions,-to which there was no exception by the defendant at the time of the trial, or after the verdict, or after the judgment, until his statement of the case on appeal; and the exceptions stated, except one, were based upon the ground that the Court had failed to explain the law as applicable to the evidence as to the measure of damage.</p>

<p>Civil action to recover of defendant an amount of money expended by the city for paving one-third of Fayetteville street in front of the lot owned by the defendant on said street, between Morgan and Martin streets, tried before Winston, J., at April Term, 1891, of Wake Superior Court.</p> <p>The following facts were agreed upon :</p> <p>1. In the month of June, 1888, after notice to defendant, as provided in section 60, of the charter of said city, and in the ordinance named below', that he was required by an ordinance of the Board of Aldermen to have the street in front of his real property paved, and after refusal of defendant to have such paving done for more than thirty days after notice, the plaintiff paved 58} yards on Fayetteville street in front of defendant’s property, said paving being worth and having-cost $1.20 per yard.</p> <p>2. That defendant was notified and demanded as aforesaid! by plaintiff- to pave said 58J- yards, pursuant to said ordinance and section 60, and the number of yards demanded to be paved was one-third of said street in front of defendant’s property. All of said street in front of said property was paved, so that said 58¡- yards did not comprise all the paving done on said street.</p> <p>3. The defendant w'as at the time of notice and paving-aforesaid, and now is, the owner of said property in front of which the paving was done.</p> <p>4. That after the paving was done by plaintiff, the plaintiff demanded of defendant the payment of the value and cost of same, and payment was refused.</p> <p>5. That on February 28, 1890, summons in said action having been prior to that time duly issued and served upon defendant, a Justice of the Peace, before whom it was returnable. rendered judgment in favor of plaintiff for $70, with interest from July 1, 1888, the same being the value and cost of the paving, and the defendant appealed to the Superior Court.</p> <p>Section 60 of the charter of said city is as follows: “That every owner of a lot or person having as great an interest therein as a lease for three years, which shall front any street on which a sidewalk has been established, shall improve, in such manner as the aldermen may direct such sidewalk as far as may extend along such lot, and on failure to do so within twenty days after notice by the Chief of Police to said owner, or, if he be a non-resident of the County of Wake, to his agent, or if such non-resident have no agent in said county or his personal notice cannot be served upon the owner or agent, then, after publication of- a notice by the Chief of Police for thirty days in some newspaper published in Raleigh, calling on the owner to make such repairs, the aldermen may cause the same to be. repaired, either with brick, stone or gravel, at their discretion, and the expense shall be paid by the persons in default. Said expense shall be a lien upon said lot, and if not paid within six months after completion of the repairs, such lot may be sold, or enough of the same, to pay such expenses and cost, under the same rules, regulations and restrictions, rights of redemption and saving, as are prescribed in said charter for the sale of land for unpaid taxes. The Board of Aldermen shall have power to .require every owner of real estate in the city to pave one-third of the street or streets in front of his or her land, in such manner and with such material as the Street Committee of the Board of Aldermen may direct, and to enforce such requirement by proper fines and penalties, and upon the failure of such owner to do such paving, the city may have same done, and the costs' thereof may be assessed upon the property of such delinquent and added to the taxes against him or her, and collected in the same manner that other taxes or assessments are collected, or judgment may be taken by the city, before the Mayor or any Justice of the Peace, or in the Superior Court of Wake, for the cost of such paving, and when docketed in the Superior Court of Wake such judgments shall have the same lien as is possessed by other judgments docketed in said Superior Court,..and be enforced in like manner ”</p> <p>Ordinance referred to is as follows:</p> <p>“Resolved, That the owners of real estate on Fayetteville street, between Morgan and Martin streets, be and are hereby required and directed to pave so much of said street as lies in front of their respective lots from the curbing of the sidewalk to the pavement laid by the city on said street, being one-third of the said street, in such manner and with such material as the Street Committee of the Board may direct, to-wit, with rubble stone. And if any owner shall fail for the period of thirty days after written notice from said committee to do such paving, then the same shall be done by the city for $1.20 per square yard at the cost of such delinquent, as provided in section 2 of an act of the General' Assembly of 1887, entitled ‘An Act to amend the Charter of the City of Raleigh/ ratified on the 7th of March, 1887, and made a part of this case.”</p> <p>The Court found, as a further fact, that all the other property owners along Fayetteville street were likewise required by plaintiff, under like authority as they seek to exercise in this case, to pave one-third of the sidewalk in front of their respective buildings, and that the cost of said paving was reasonable. The Court rendered judgment for plaintiff.</p> <p>The defendant excepted to the judgment, upon the ground that the same was not warranted by the Constitution and laws of this State, and appealed.</p>

<p>Negligence — Instructions to Jury — Evidence.</p> <p>1. When the pleadings and proofs develop several aspects of the ease upon which the right to recover depends, it is error to single out one and to charge the jury particularly in respect thereto, and give only general instructions as to the others —especially where special pertinent instructions have been requested.</p> <p>2. What is negligence, is a question of law for the Court when the facts are ascertained; and when the evidence is conflicting, the Court should instruct the jury that it is or is not negligence, accordingly as they might find the facts to exist.</p>

Civil ACTION, brought by a relator against C D. Upchurch, Clerk of the Superior Court of Wake County, and his sureties on his official bond, to recover money placed in his hands as receiver of relator’s estate during his infancy, and after-wards misapplied by said Clerk, heard before Connor, J., at February Term, 1892, of Superior Court of Wake County.

PROCESSIONING proceeding, heard upon exceptions to report, at January Term, 1891, of Durham Superior Court, Boykin, J, presiding.

Civil action, originally commenced before a Justice of the Peace for the county of Nash, and carried by appeal to the Superior Court of said county, and tried before Whitaker, /., at the Spring Term, 1891.

Civil actioN, tried at February Term, 1891, of VaNOE Superior Court, Whitaker, J., presiding. The facts necessary to an understanding of the questions decided are stated in the opinion.

Civil action, tried at August Term, 1891, of Mecklen-burg Superior Court, Hoke, J., presiding.

MotioN to dismiss appeal from assessment of a jury, heard before Merrimon, J., at August Term, 1891, of Buncombe Superior Court. The facts are stated in the opinion.

MotioN to set aside a judgment as to the feme defendant, heard at Fall Term, 1891, of Craven Superior Court, before Bryan, J. The summons in the action issued December 27tb, 1887, and judgment was rendered for the plaintiff and against the defendants at May Term, 1888, for the possession of the land described in the complaint. Execution issued on August 13th, 1891, after service of notice of motion lor execution on June 19th, 1891.

Civil actioN, tried at February Term, 1891, of Craven Superior Court, Connor, J., presiding. Held: to pay the premium due upon said policy on the 15th day of June, 1889, whereupon the defendant declared that the plaintiff on account of such failure had forfeited and lost all right and claim under the policy, and had likewise forfeited to it all the premiums and assessments he had theretofore paid in pursuance of the stipulations…

Civil action, heard upon exceptions'to referee’s report, at February Term, 1891, of Forsyth Superior Court, Bynum, J., presiding. This is a creditor’s action brought against the defendant corporation, which was organized under and in pursuance of the statute (The Code, § 677). This corporation is indebted' to divers creditors for considerable sums of money, and is insolvent.

Civil action, tried at Fall Term., 1890, of the Superior Court of NORTHAMPTON, Whitaker, J., presiding.

ATTACHMENT proceedings, heard (u,pon appeal from a Justice of the Peace) at Fall Term, 1891, of Craven Superior Court, before Bryan, J. The plaintiffs moved before his Honor to dismiss the appeal. The summons was issued in the Justice’s Court on August 7th, 1891, and, at the same time, the affidavit of the plaintiff and warrant of attachment were made, and the said affidavit and an order of publication were entered on August 8th.

MotioN to set aside judgment, heard at Fall Term, 1891, of CraveN Superior Court, before Bryan, J. It appears that the defendants were non-residents of this State when, next before and next after, this action began, on the 18th of February, 1891.

Motion to remove cause to Federal Court, heard before Brown, J., at Fall Term, 1891, of PkrquimaNS Superior Court.

<p>Frauds, statute of— Vendor and Vendee — Judgment—Better-ments'-— Will — Election—Limitations, statute of.</p> <p>1. The vendor, in a parol contract to convey land, will not be permitted to evict a vendee who has entered and made improvements, until the latter has been repaid the purchase-money and compensated for betterments.</p> <p>2. A devisee is not compelled to make an election until he has had an opportunity to determine on which side his interest lies, but there must not be such unreasonable delay as to injure rights acquired by others.-</p> <p>3. Where the devisee of a tract of land charged with the payment of a legacy had been in possession, under a verbal promise from the devisor to^convey, for several years before the, death of the testator, made no election until more than three years, and when he was sued by the executors to enforce the charge: Held, that he might then make his election, and was not barred by the lapse of time from setting up his claim for betterments.</p> <p>4. In such case the decree should direct a sale of the land, and that the proceeds should be applied first to the satisfaction of the sum ascertained to be due the defendant vendee for betterments, and then, if there is a surplus, to the payment of the amount charged upon the land by the will.</p>

MotioN to vacate a judgment, heard at Spring Term, 1891, of Tykrell Superior Court, Bryan, J., presiding. The plaintiff brought this action against the defendants therein, husband and wife, to the Spring Term, 1890, of the Superior Court of the county of Tyrrell, and at the Fall Term of that Court next thereafter obtained judgment by default final for want of an answer.

Civil action, tried at February Term, 1891, of Beaufort Superior Court, Bryan, J., presiding. This was an action of trespass quare clausum fregit.

This was a motion made by the plaintiff for an injunction in an action in Halifax Superior Court, until final hearing, restraining the defendant from proceeding to enforce the collection of certain taxes assessed against its property, heard by Connor, J., at Chambers in Wilson, N. 0., on the 30Lh day of December, A. D. 1891.

<p>Civil action removed from Durham and tried at August Term, 1891, of Orange Superior Court, before Winston, J.</p> <p>The. A ,intiff alleged that in 1873 one Lewis Pratt died last will and testament, in which it was provided s: “It is my wish and desire that my wife Elizabeth nail occupy the house she now has during her . life. It is my wish and desire that my son Lewis as shall have the lot on which I now live at the death y wife, the said Lewis Jenkins paying my daughter .y Little (Mary Ray, the plaintiff) one-third of the cash valuation of the same or said lot.” The said Lewis Jenkins was appointed executor of said will, and duly qualified as such. The object of this action is to subject the said lot to a charge to the extent of one-third of its value, as provided in the will. The defendant denies that the plaintiff has any interest in said property, pleads an estoppel by a former action and adverse possession under' color of title for over seven years. It appears that Lewis Pratt was a slave of W. N. Pratt, who, in recognition of his faithful services (as is indicated by his will of 1855'by which he provided that said Lewis should be free), did on the 3d of May, 1867, execute to him a deed conveying the said lot, which deed is as follows: “Know all men by these presents that I, William N. Pratt, for and in consideration of the faithful services rendered me while a slave by Lewis Pratt (now a freed man), I do hereby give and grant unto said Lewis Pratt (freedman) one lot of land embracing the shop he now occupies and the house in which he resides, and to contain two acres of land, reserving to myself possession during my life. In witness whereof, I hereunto set my hand and affix my seal, this 3d day of May, 1867. (Signed) W. N. Pratt.”</p> <p>It also appears that in 1873, John Burroughs as executor of W. N. Pratt, under the authority of his will, sold the said lot at public auction, when Thomas Webb became the purchaser, to whom a deed in fee was executed, said executor giving notice that he made no guarantee of title, and only sold the interest of W. N. Pratt; that in March, 1876, the said AVebb conveyed the lot-in fee to said Lewis Jenkins, who conveyed the same in fee to the Town of Durham; and that in 1883 said town conveyed the same in fee to the defendant, the county of Durham.</p> <p>It also appears that in 1876 Lewis Jenkins and Elizabeth Pratt brought an action against John Burroughs, executor of W. N. Pratt and the heirs at law of said Pratt, for the purpose of reforming the said deed, alleging that the same was intended to convey a fee-simple estate, and that the words of inheritance were omitted by reason of the mistake or ignorance of the draughtsman. The defendants in that action denied these allegations, and after a reference to an arbitrator it was formally adjudged, at Spring Term, 1878, that the plaintiffs take nothing by their suit, the award being that the allegations as to mistake were not sustained by the evidence. The complaint and answer in said suit are made a part of the replication in the present action.</p> <p>His Honor rendered judgment in favor of the defendants, and the plaintiff appealed.</p>

This was a proceeding in the Superior Court of Wake County to condemn lands required by plaintiff in the construction of a branch of its road. The defendant was a resident of Wake County, and received the amount of compensation awarded by the commissioners as damages to his property. Thereupon he made a motion for allowance of his counsel ft es, to be taxed by the Court.

<p>Insurance— Contract — Waiver — Pleading.</p> <p>1. An insurance policy, covering several distinct kinds of property, is not a single contract, but the assured may maintain an action to’ recover the amount insured upon any one of the articles specified, although he may have alleged a total destruction of all the property in his complaint.</p> <p>2. The insured may also maintain an action for theamount insured upon some of the property, although the insurer has demanded a reference to arbitration, under a stipulation in the policy as to other insured items, it appearing that the insured had abandoned his claim as to them.</p> <p>3. If a party relies for his recovery upon a waiver of some material condition or stipulation connected with the cause of action, he should set forth such waiver in bis pleadings, but if in the progress of the trial it becomes necessary for him to establish a waiver of some incidental requirement on his part, not affecting the substantial merits of the action, he may prove it without having pleaded it.</p>

<p>This was a civil ACTION, heard upon exceptions to referee’s report, before Boykin, J., at October Term, 1890, of the Superior Court of "Wake County.</p> <p>The plaintiffs alleged that they had acquired the entire interest in the lands mentioned in the complaint except one share (being one-sixth), which descended to the feme defendant N. D. Allen.</p> <p>They further allege that this share was allotted and set apart to said defendant (being forty-four acres) by metes and bounds; that said defendant accepted the same as her share in said land and entered into the exclusive possession thereof, and that afterwards the said forty-four acres were conveyed to said defendant in pursuance of said oral agreement that it was to be in satisfaction of her share in the said land. That afterwards the male'defendant, W. G. L. Allen, orally agreed to purchase the eighty-three acres described in the complaint, it being a part of the tract remaining after the forty-four acres were allotted to the feme defendant; that the purchase-money- has not been paid and that the said defendant is in the possession of said land. They offer to execute title to said defendant upon the payment of the purchase-money, and pray for specific performance, or, upon failure of said defendant to pay the purchase-money, that the land be sold. They pray for other and further relief, etc.</p> <p>The defendants deny that the feme defendant agreed to take the forty-four acres of land as her part of the land, and they deny that the plaintiffs are the owners of the said eighty-three acres; they also claim that the feme defendant is the owner of five acres of the said eighty-three acres, and that before the commencement of this action they surrendered the possession of all of the said eighty-three acres except the five acres claimed by the feme defendant. They deny that there was any contract to purchase said land. They allege that all of the matters in controversy have been settled by arbitration and award. There was a reference under The Code, by consent of the parties, to R. H. Battle, Esq., whose report of the facts sufficiently sets forth the points presented for review. There were several exceptions to the findings of fact as to want of evidence to sustain certain findings and the like, but as the evidence was not properly presented to the Court, these exceptions were not considered and the cause was heard in this Court only upon the findings of fact by the referee, and the exceptions to his conclusions of law, all of which findings were confirmed by his Honor.</p> <p>The findings of fact are as follows:</p> <p>1. That under the will of David Fort, Sr., who died in 1863, Nancy Fort became seized of a life-estate in a tract of of land in Wake County, containing 273f acres, and including the land in controversy in thik action, and a remainder in fee was vested in his six children — D. F. Fort, one of the plaintiffs; Nancy D. Allen, a defendant, and Lucy V. Fort, Geneva Fort, Sally Fort and Mary A. Davis.</p> <p>2.. That on November 21st, 1877, the said Mary A. Davis and her husband J. B..Davis, conveyed by deed duly executed, etc., her one-sixth interest in remainder in said land to D. F. Fort, making his interest in said remainder one-third.</p> <p>3. That by deed dated November 22, 1880, which was acknowledged before the Clerk .and filed for registration December 10, 1885, D. F. Fort conveyed his interest in said land to his wife, Roberta Fort.</p> <p>4. That said Roberta Fort died intestate February 3,1886, and her interest in said land — one-third, subject to the life-estate of Nancy Fort — descended to her infant children, the plaintiffs, other than D. F. Fort, as her heirs at law.</p> <p>5. That on February 4, 1889, Nancy Fort, the life-tenant, and Lucy B. Fort, Geneva Fort and Sallie Fort conveyed their respective interests, by deed duly registered, to the plaintiffs, Moses, Hoy, David, Troy, John and Roberta Fort.</p> <p>6. That in the year 1874 or 1875 the defendants took exclusive possession of forty-four acres from the west side of the David Fort land (the 273§ acres), by consent of Nancy Fort, ánd'with an oral understanding with her and the other owners of the remainder that they would take that part as the share of the feme defendant in the tract, and they were not accountable to said Nancy Fort for rent during her lifetime.</p> <p>7. That by deed dated November 15th, 1888, and registered, the said Nancy Fort, Lucy V. Fort, Geneva Fort and Sallie Fort conveyed their respective interests in said forty-four acres to the defendants, the same being stated in said deed to be that portion of the David Fort land allotted to N. D. Allen.</p> <p>8. That said forty-four acres, without accountability for rent to the life-tenant, was fully equal in value to one-sixth of the remainder interest in the whole tract.</p> <p>9. That about the 29th day of June, 1884, the defendant W. G. L. Allen agreed to purchase from D. F. Port and wife eighty-three acres from the east side of said David Fort land, at the price of $8 per aeré, and soon thereafter went into possession thereof, and erected houses and made other improvements thereon, and also cut valuable timber therefrom. Said agreement was by parol, and never reduced to writing.</p> <p>10. That the said D. F. Fort and wife never tendered a sufficient deed to said W. G. L. Allen for the said eighty-three acres of land.</p> <p>11. That defendant W. G. L. Allen has.not paid, nor offered to pay, anything for said eighty-three acres, or any part thereof, nor has he paid any rent for said land.</p> <p>12. That .in October or November, 1888, the plaintiff D.F. Fort and defendant W. G. L. Allen agreed by parol to leave their differences about said eighty-three acres of land to arbitrators, who made an award to the effect that seventy-eight acres of the land was, -by consent, D. F. Fort’s; that the other five acres belonged to Mrs. Nancy Fort, and that the improve-mentson said land were put there by W. G. L. Allen, and the buildings belonged to him.</p> <p>„ 13. That the rental value of said eighty-three acres of land, from the time the defendants went into possession to the last of 1888, when defendant W. G. L. Allen agreed to surrender seventy-eight acres, and the damages to the land by cutting timber, etc, are equal in value to or greater than the sum whereby said land is enhanced in value by said improvements.</p> <p>14. That the plaintiffs, other than D. F. Fort, are infants under twenty-one years of age, without regular guardian, and D. F. Fort is their father and next friend.</p> <p>15. That the rental value of the five acres claimed by the defendants for the year 1889 was twenty dollars.</p> <p>CONCLUSIONS of law.</p> <p>1. That the plaintiff D. F. Fort has no interest in the land in controversy, and is entitled to recover nothing in this action.</p> <p>2. That the arbitration and award of October or November, 1888, was without legal effect as to the parties actually interested in the eighty-three acres of land in controversy.</p> <p>3. That the defendants are in equity estopped from claiming any interest in the David Fort land, other than the forty-four acres of which they took possession and which was conveyed to them, as set forth in findings of fact six and seven.</p> <p>4. That by this action the plaintiffs have renounced any interest in said forty-four acres.</p> <p>5. That the plaintiffs, other than D. F. Fort, are. the owners and entitled to the possession of the land in controversy, and every part thereof.</p> <p>6. That said infant plaintiffs are entitled to twenty dollars for rent for the year 1889.</p> <p>7. That the said infant plaintiffs are entitled to judgment for the possession of the land in controversy, for twenty dollars damages, and for costs.</p> <p>EXCEPTIONS.</p> <p>1. For that the referee finds in paragraph one that D. F*. Fort has no interest in the land in controversy, without specifying what land in controversy.</p> <p>2. For that he finds in paragraph two that the said arbitration and award mentioned therein was without legal effect as to the parties actually interested in the eighty-three acres of land, when he finds as a fact in paragraph three of “ facts found” that said D. F. Fort conveyed by deed his interest in said eighty-three acres to his wife Roberta Fort and children, without also finding that the same was necessary for their support and maintenance.</p> <p>3. And for that he finds in paragraph three that the defendants are estopped in equity from claiming any interest, etc., when he also finds in paragraph six of “facts found” that the defendants took.possession of said forty-four acres under an oral agreement that they would take the same as the share of the feme defendant, etc., as appears in said paragraph six, whereas a verbal agreement made by anyone, and especially by a feme covert, about land is binding neither in law nor equity, as this agreement is found to have been made.</p> <p>4. For that the referee finds in paragraph five that the plaintiffs other than D. F. Fort are the owners and entitled to the possession of the land in controversy; whereas, as a matter of law, they are entitled to the possession of the five acres in controversy, if at all, only for the life-time of the said Nancy Fort, the widow of the late David Fort, and only so upon the payment by them of the value of the improvements erected since the possession by the defendants.</p> <p>5. And for that he finds in paragraph six that said infant plaintiffs are entitled to $20 rent for the year 1889; whereas, as a matter of law, they are entitled to recover nothing until they pay for the increased value of the land (the five acres) by reason of the improvements.</p> <p>The Court overruled all of the exceptions and adjudged tba,t the plaintiffs had no interest in the forty-four acres allowed to the feme defendant; that the plaintiffs are the owners of and entitled to the possession of the said eighty-three acres; that they receive the same, and $20 rent and damages, and .that a writ of possession issue, etc.</p> <p>The defendants appealed.</p>

This was a civil ACTION, tried at May Term, 1891, of the Superior Court of Vance County, before Whitaker, J. The defendant rested its defence solely upon the stipulation contained in the policy that no suit brought for the recovery of any loss and founded upon the policy should be sustainable in any Court, unless instituted “ within twelve calendar months next after the loss shall have accrued.” The policy contained also another stipulation, which is as follows: “ If…

Civil action for damages, tried 'at March Term, 1891, of Martin Superior Court, Whitaker, J, presiding.

This was a civil ACTION, in which the ancillary proceeding of claim and delivery was resorted to for the purpose of acquiring possession of a portable engine and saw-mill, tried at September Term, 1891, of Chatham Superior Court, before Mclver, J. At Fall Term, 1886, the jury responded in the affirmative to two issues involving the plaintiff’s title and right to possession, but did not answer the other issues.

The plaintiffs allege, in substance and effect, that the defendant corporation is indebted to them respectively -in large sums of money; that it is largely insolvent; that being so insolvent, it has confessed divers judgments, without action, in favor of its officers and stockholders, founded upon fictitious debts, the purpose being to defraud the plaintiffs and others, its creditors, and defeat the payment of their debts; that to that end they seek to sell the property of…

This is a civil action in the nature of a quo warranto to try the title to the office of Register of Deeds for Montgomery County, tried before Graves, J., at the June, 1891, Special Term of Montgomery Superior Court. • The registration for Bean’s Mill precinct in Ophir Township, and Little River precinct in Little River Township, was assailed by defendant, and the registration books were introduced for that purpose.

This is a civil action, heard upon motion to enter award, before Boykin, J., at March Term, 1891, of Durham Superior Court. The action was brought to recover a balance alleged to be due for work done and material furnished on the construction of defendant Lynchburg and Durham road. At the return term, and before any pleadings were filed, the cause was referred to arbitrators with directions to make an award and report it to the Court.

This was a motion by the defendant, the heirs at law and the administrators of Stephen M. Houston to set aside an award, the judgment confirming th'e same, the sale and report thereof in accordance with said judgment, all of which proceedings were had in this action, heard at ITebruary Term, 1891, of Duplin Superior Court, Mclver, J., presiding. The facts were found by the Court, and thereupon it refused to grant the motion, and defendants appealed.

This is a petition of the defendant to rehear and reverse the judgment of this Court rendered in this action at February Term, 1891, (reported in IOS N. C., 10).

Civil action, tried at November Term, 1891, of Lenoir Superior Court, Boykin, J., presiding. plaintiff’s appeal. The plaintiff brought this action to avoid the contract and recover the real and personal property hereinafter specified. The case was, by consent of the parties, referred. The material facts found by the referee are as follows : 1.

<p>Evidence — Handwriting — Forgery — Estoppel.</p> <p>1. A plaintiff who brings an action against the executors of a person whOoe estate is charged with a liability, is estopped to deny the execution of the will under which they were appointed and qualified ; and the original will, taken from the records of the Court, is competent without further proof of its execution, as a basis of comparison in determining the. genuineness of the handwriting of testator to the instrument in controversy.</p> <p>2. Upon the trial of an issue as to the genuineness of a paper alleged to have been forged by plaintiff, evidence that plaintiff was skillful in imitating the handwriting of others, and that he himself proclaimed that fact, is competent.</p>

<p>Deed— Correction — Evidence.</p> <p>A deed conveying land to C., “ and the children of the natural issue of her body, * * * * to have and to hold unto the said C. and the issue of her body forever and clear from all manner of incum-brances,” with warranty to C. forever, contains evidence upon its face of a purpose to convey the fee sufficient to warrant a decree for correction by inserting the necessary words of inheritance.</p>

Civil ACTION, tried at Fall Term, 1893, of PasquotaNK Superior Court, Broten, J., presiding. The complaint alleges that the plaintiff is the owner and entitled to have possession of a quantify of corn specified therein, and that the defendant wrongfully detains the same, etc. The answer denies all the material allegations of the complaint.

<p>Agency— Corporation — Notice—Fraud—Evidence — Negotiable Instrument — Burden of Proof.</p> <p>1. A corporation is not bound by the acts or chargeable with the knowledge of one of its officers or agents in respect to a transaction in which such officer or agent is acting in his own behalf,"and does not act in any official or representative capacity.</p> <p>2. When the maker of a note alleges fraud on the part of the payee in in obtaining its execution, and offers proof tending to support that fact, the prima facie case of an endorsee before maturity that he took without notice is so far rebutted as to shift the burden on him to show that he purchased for value and in good faith; but when he has complied with this obligation, his prima facie case is restored, unless the circumstances under which he took the paper are such as to amount to constructive notice, when the burden is again transferred to the defendant to establish knowledge of the plaintiff of the vitiating facts.</p> <p>3. Where it was shown that a director of a bank, and also one of its discount committee, conferred with the president of the bank in relation to discounting paper which such director held as president of another corporation, and that, after consideration with other officers — the applying director taking no part in the matter — the paper was discounted in the usual course of business : Held, not to constitute evidence sufficient to go to the jury of notice of an alleged fraudulent element in the paper discounted.</p>

Motion by plaintiff for judgment upon the pleadings, heard at February Term, 1892, of Riohmond Superior Court, Boykin, J., presiding. The motion was refused, and the plaintiff appealed.

<p>This was a civil action brought on an insurance policy to recover for loss by fire, tried at June Term, 1891, of the Superior Court of Durham County, before Boykin, J.</p> <p>The issues and findings were as follows:</p> <p>“ 1. Has there been an arbitrament and award as to the amount of damages which plaintiffs could recover under this policy ? Ans. No award.</p> <p>2. Did plaintiff file with defendant notice and proof of loss as required by the policy? Ans. No.</p> <p>3. Did defendant waive notice and proof of loss? Ans. Yes.</p> <p>4. What was the damage done by the fire to the property included in the policy? Ans. Nine thousand two hundred dollars, with interest.”</p> <p>The other material facts are stated in the opinion.</p>

<p>Civil actioN, heard upon complaint and demurrer at January Term, 1892, of Cumberland Superior Court, Boy-kin, J., presiding.</p> <p>The case is stated in the opinion.</p>

<p>Easement — Estate, Base or Qualified, and upon Condition— Mills and Dams — Contract, Construction of — Evidence.</p> <p>In 1873, H. and T. entered into an agreement under seal, by which H. “Consents for said T. to back water, if necessary, up into his field, on condition that said T. will allow H. as much woodland along the line fence on south side of the river; T. is allowed to raise dam eight or nine feet high; this agreement to remain good so long as T. keeps up a mill; * * * afterwards to be null and void.” T. erected a mill and dam, in consequence of which about twelve acres of H.’s land were eventually flooded, and H. went into possession of about four or five acres of the woodland, that being about the quantity covered originally by the water of the pond: Held—</p> <p>1. The agreement vested in T. an equitable base, or qualified fee, in an easement to back the water upon H.’s land so long as he, or those claiming under him, maintained the mill, and that upon T.’s death, this estate descended to his heirs. (Base, or qualified fees defined, and Hill v. Hosier, 67 N. C., 443, commented upon.)</p> <p>2. The agreement that H. should have as much land on the south side of theriver was a condition subsequent to the easement so created, and upon the failure of T., or those claiming under him, to perform that condition, the easement terminates.</p> <p>3. That H.’s right to occupy the land under the condition subsequent, was not restricted to the amount which he entered upon at the beginning of the operation of the agreement, but expanded and was co-extensive with the quantity of land which subsequently became servient to the overflow of his land from the erection of the dam.</p> <p>4. That H. was entitled, under the agreement, to the use of so much of T.’s land as T., by the erection of the dam not only actually overflowed, but “sobbed” and made unfit for cultivation, of his (H.’s) land</p> <p>5. The evidence as to the height of the dam being conflicting, the Court properly charged the jury that by a dam nine feet high is meant such a dam as, under given circumstances, will pond the same quantity of water that a dam exactly and uniformly nine feet high under same circumstances would pond.</p>

<p>This was an appeal from a judgment rendered at Spring Term, 1891, of Jones Superior Court, Mclver, J., presiding.</p>

Civil action, tried at January Term, 1891, of Cabarkus Superior Court, Graves, J., presiding.

Application to remove cause to United States Circuit Court, heard before Boylciv, J., at November Term, 1891, of Iredell Superior Court. It appears that the plaintiff is a citizen of the State of Georgia, and was such at the time he brought this action in the Superior Court of Iredell County against the defendants to recover damages to the amount of $10,000, occasioned by their alleged negligence.

This was a special PROCEEDING in the nature of a creditor’s bill, heard before Mclver, J., at February Term, 1892, of Rowan Superior Court, upon an appeal from the Clerk upon a question of law, whether the plaintiff’s cause of action was barred by the statute of limitations. Iiis Honor affirmed and approved the judgment and decision of the Clerk, from which the defendants appealed. The facts appear in the complaint and answer, and are admitted to be true.

<p>This'was a civil actiom, brought to recover damages for overflow alleged to have been caused by turning a running stream into the channel of another while constructing the road, so as to make both pass through a single waterway, tried at April Term, 1892, of Granville Superior Court, before Boykin, J.</p> <p>The plaintiff and his wife had joined in a conveyance of the right-of-way for the Durham and Northern Railroad on either side of the center of the railroad track.</p> <p>The plaintiff introduced evidence that, by reason of the turning of two streams of water, one called Adams’ branch and the other Fleming’s branch, into one, his land on both sides of the road was flooded and damaged. The plaintiff further showed that, in clearing off the right-of-way, certain logs and bushes were thrown by the defendant in Adams’ branch, and the cost of clearing them out amounted to $40. The plaintiff did not introduce any evidence that the said railroad was negligently constructed, or that, in prudent and careful railroad construction, it was not proper to cause the two branches to flow together, or that the trestle was not large enough to carry off the water.</p> <p>It was admitted that all the land of the plaintiff alleged to have been damaged was, before the railroad was built, in one tract. In estimating the damage, all of the plaintiff’s evidence was as to the damage done to the entire tract, and there was no evidence introduced as to the damage done to each separate tract, except the cost of cleaning the logs, etc., from Adams’ branch.</p> <p>The defendant introduced the deed for the right-of-way over this land.</p> <p>William Moncure, a witness for the defendant, among other things, testified that he is by profession a civil engineer, and was superintendent of the defendant’s road, and had been engaged in constructing and working on railroads for eleven years; that the road of the defendant over the land of the plaintiff is well and skillfully constructed, and the trestle is amply sufficient to carry off the water; that this trestle is seventy-five feet long; that waterways under the track of railroads are always points of danger, as wash-outs are more likely to occur at these places than elsewhere; that in the construction of railroads, it is always the custom of prudent engineers to make one waterway instead of two when it is practicable to do so; that in trestles there is always more or less danger of the abutments washing out, and these abutments have to be constantly and carefully watched; that it was possible at this place to have made two trestles, but the road would not have been as cheaply and safely constructed with two trestles as in the manner in which it was constructed. The defendant also introduced evidence that the land alleged to be injured was, before the road was built, and is now, a low, wet, swampy place, and was uncleaned and unfit for cultivation, and that Adams’ branch in this swamp w'as always partially obstructed with logs, brush, etc.</p> <p>The defendant asked the Court to charge the jury as follows:</p> <p>1. That, upon the whole evidence, there was no evidence of negligence in the construction of the road, and that the plaintiff was only entitled to recover the cost of cleaning out Adams’ branch. This was refused and defendant excepted.</p> <p>2. That if the jury should believe, Rom the evidence, that the defendant had purchased and paid for the right-of-way over this land, and that turning these two branches together was the proper and prudent manner of constructing said road, then that any damages which accrued from the proper and prudent construction of the road in the usual manner were included in the price paid for the right-of-way, and the plaintiff in this action could only recover the cost of cleaning out Adams’ branch. This was refused, and the defendant excepted.</p> <p>3. That as the defendant had the right under its charter to construct the road, the plaintiff cannot recover unless he shows that the work was negligently dene, or that he was damaged by some act of the road not necessary for its safe and prudent construction, and in this case there is no evidence of any negligence or useless damage, except in allowing Adams’ branch to be filled with logs. This was refused, and the defendant excepted.</p> <p>4. That the measure of damage for the injury done to the land above the road by reason of the obstructions allowed to accumulate in Adams’ branch is the cost of clearing out such obstruction placed there by the defendant. This was refused, and the defendant excepted.</p> <p>His Honor charged the jury that there was no negligence in the construction of the road as regards the land lying below the road-bed, and in arriving at their verdict they would not allow any damages for injury done this land; that if the jury believed that there was negligence in the construction of the trestle, and that it was not sufficient to carry off the water, and that by reason of such negligence the land above the road-bed was injured, they could allow such damages as they thought the plaintiff had suffered by reason of such flooding.</p> <p>To this charge the defendant excepted, and assigned as error that there was no evidence that there was any negligence in the construction of the trestle, or that the trestle was not sufficient to carry off the water, and because it was not responsive to the plaintiff’s prayer for instructions in regard to the measure of damages, and because, in arriving at the plaintiff’s damage, no witness had separated the damage done to the various tracts, but in estimating the amount of damage had done so for the whole tract, both that above and that below the road-bed.</p> <p>There was verdict and judgment for the'plaintiff, and defendant appealed.</p>

<p>Sale of Land for Taxes — Pleading—Presumption.</p> <p>1. The plaintiff, claiming under a tax sale, in his complaint alleged that the land — describing it by metes and bounds — had been allotted to defendant as a homestead; that the said land had been duly listed for taxation, and, upon failure of the owner, the “saidland” was sold for taxes: Held, there was an irresistible inference that the entire tract was sold, and no one but the county — under the Rev. Act of 1885 — being entitled to purchase the whole tract, a sale to an individual was void.</p> <p>2. This inference is not rebutted by an agreed statement of facts that the land was duly listed, the tax lists placed in the hands of the collector, and that advertisements and sales were made, there being no statement as to the manner in which the-sale was made.</p> <p>3. The presumption that one who makes a sale of land for taxes has complied with the requirements of the law regulating such sales, does not arise until after the deed to be made thereupon has been executed.</p>

Civil actioN, tried at Fall Term, 1891, of the Superior Court of Ashe County, before Bynum, J. A former appeal in this action was decided at February Term, 1891 (108 N. C., 349), when a new trial was granted, after which plaintiff filed an amended complaint, in which it is alleged in substance that the defendant is a corporation duly created by law, owning and operating a line of railroad between the town of Taylorsville, in.

Civil ACTION, heard upon motion to confirm report of referee at January Term, 1891, of Durham Superior Court, Boykin, J., presiding.

Civil actiost, tried at October Term, 1891, of Durhaji Superior Court, Winston, J., presiding.

Civil action, tried before Bynum, J., at Spring Term, 1892, of MeckleNburg Superior Court.

This was a oivil action for the recovery of land, tried by-Bynum, J., at the Fall Term, 1891, of the Superior,,Court of' Mitchell County, upon the following case agreed,jto-wit: (Only so much of the case as is necessary to an understanding of the decision is set out.) 1. That on the thirteenth day of March, 1875, John’ E.. Brown and John J. Donaldson, by their attorney Wm.';J..

This was a civil ACTION, tried on appeal from a Justice of the Peace, before Winston, J., at October Term, 1891, of the Superior Court of Durham County. The plaintiff testified: “ I was in the employ of the defendant from January 1, 1891, to June 2, 1891. The contract between us was that I was to work for him from January 1, 1891, to January 1, 1892, at the rate of $45 per month, oras I needed the money. Nothing wks said about how I was to be paid. I was working by the year.

Civil ACTION, tried at August Term, 1890, of Buncombe Superior Court, Philips, J., presiding. The plaintiff, in several causes of action, presenting different aspects of defendants’ liabilit}, alleged that defendants were the proprietors, or contractors of a certain building upon which he was employed by them, and that while so employed, by their negligent conduct, and the negligent conduct of their agents and servants, he was seriously injured without any fault on his part.

<p>This was a civil ACTION to try the title to the office of Register of Deeds of the county of Transylvania, tried before Merrimon, J., at the Fall Term, 1891, of the Superior Court of Haywood County, to which the action had been removed.</p> <p>The relator insisted that the returns from Dunn’s Rock township were changed after they were signed by the judges of election, and before they reached the board of canvassers, by changing the number of votes received by W. P. Whit-mire from sixty-one to sixty-three.</p> <p>There was evidence offered by the relator tending to prove that Whitmire received only sixty-one votes in Dunn’s Rock township. All the judges of election testified to facts and circumstances tending to show this. The defendant offered evidence tending to show that he had received sixty-three votes. One of the judges of election was chosen to carry up the returns to the board of canvassers, and they were delivered to him for that purpose, and he left them over'night at the house of one Bryson, who lived four miles from the court-house of the county.</p> <p>Bryson, at whose house the returns were left, testified that he went to bed about 9 o’clock, and that sometime in the night T. T. Loftis and Back Summey came to his house and asked to see the returns, to settle a dispute about the votes for Clerk, as they claimed; that they got the returns and examined them by the light from the fireplace, but he did not know whether they meddled with the returns or not.</p> <p>The relator then offered to show by one Lance that he heard Loftis say that he had altered the returns of the vote of Whitmire from Dunn’s Rock township, and in this connection, and as a ground for the admission of said Loftis’ declaration, to show that Loftis was a partisan of the defendant. The defendant objected to this evidence. The Court sustained the objection, and the relator excepted.</p> <p>The relator attacked the vote of Hogback township for that the registrar of voters for that township was not qualified to act as such; that no boxes were used at said voting precinct; that hats were used instead of boxes; that the registration laws were not observed, in that the voters were not required to give their age, place of residence, place of birth, nor occupation, and M. Revis and William Britton were allowed to vote for defendant, not being residents of the State nor qualified electors.</p> <p>The relator then handed to the witness a number of books, among which he identified the registration book of Hogback, but it was not otherwise put in evidence anytime during the trial. It was not read to the jury, nor did the relator offer to read it to them. The relator offered no evidence to show that the registrar of voters for Hogback township was not qualified to act as such. The only evidence that the registration laws were not observed in said township, was the identification of the registration book by the defendant, as above stated.</p> <p>After the argument of the case was opened, counsel for the relator handed to the Court a written request for special instructions, which were refused.</p> <p>There was judgment for defendant, and plaintiff appealed.</p>

Civil action, tried at Fall Term, 1891, of Jackson Superior Court, Merrimon, J., presiding. The action was commenced on the 22d day of April, 1882. The defendants were married in 1866, or 1867, and in 1881 entered upon the land, claiming under an alleged assignment of dower to the feme defendant as widow of a former husband. The other facts material to an understanding of the questions discussed by the Court are stated in the opinion.

<p>Homestead, — Judgment—Mortgage—Priority—Lien.</p> <p>1. A valid conveyance of land before the allotment of a homestead is a waiver of the right of homestead as to the land thereby conveyed, and the vendee takes it subject to the lien of any judgment docketed prior thereto, but the vendor may subsequently have a homestead allotted to him in other lands.</p> <p>2. A., being financially embarrassed and without having a homestead allotted, executed a mortgage upon his only tract of land, of less value than $1,000, his wife not joining in the conveyance; the mortgage was filed for registration during a term of the Superior Court, at a subsequent day of which a judgment was rendered against him and duly docketed: Held, (1) the lien of the judgment was prior to that of the mortgage; (2) the conveyance was void, the wife not having joined in its execution.</p>

Civil actiox, tried at October Term, 1891, of Duki-iaM Superior Court, before Winston, J. The facts necessary to an understanding of the point decided are stated in the opinion. The defendant appealed from the judgment rendered.

<p>IIi gima ys — B ridges — Ferries.</p> <p>1. No one, in the absence of special authority from the Legislature or the Board of County Commissioners, has the right to erect and maintain a bridge or ferry, within such a distance of a duly authorized toll-bridge as will divert from the latter the custom which, in the ordinary course of travel, would pass over it, whether that, distance be greater or less than five miles.</p> <p>2. The distance of five miles prescribed in the statute (The Code, §2099) in reference to ferries, is five miles in a direct straight line from the ferry first established.</p>

Ejectment, tried at Spring Term, 1891, of WARREN Superior Court, Connor, J., presiding. The original declaration was filed in 1852 in the Superior Court of Granville County, and, issue being joined, was removed to Warren, where several ineffectual trials were had. In 1878 there was a verdict and judgment for plaintiff, but it was subsequently ascertained that the defendant at that time was doad.

This is a special proceeding for partition, tried upon issues joined before the Clerk, at May Term, 1891, of Halifax Superior Court, Conner, J., presiding. • There was judgment for plaintiffs, from which defendants appealed. The facts are stated in the opinion.

This was a civil ACTION, tried at the August Term, 1891, of MecicleNBURG Superior Court, before Hoke, J. The action was brought to recover damages, which plaintiff alleges he sustained by reason of the deceit of the defendant in respect to a mule which the plaintiff took from him in exchange for a horse. The pleadings raised issues of fact. The verdict of the jury was favorable to the plaintiff, and the Court gave judgment in his favor.

This was a civil action, tried before Merrimon, J., at the Fall Term, 1891, of Swain Superior Court. The plaintiff complained for a balance of purchase-money unpaid for a tract of land recited in the deed as paid, and that the defendants obtained possession of the deed by fraud on their part and mistake on part of plaintiff.

This was a special proceeding, begun before the Clerk and transferred to the Superior Court at Term for trial upon the issues raised in the pleadings, and tried before Graves, J., at December Term, 1889, of Guileord Superior Court. Both parties claimed the land under the same person— George K. Hendrix, deceased — who was the husband of one of the plaintiffs and the father of the other.

<p>Probate of Lost Wills — Lost 'Deeds — Equity—Limitation.</p> <p>I. The probate of a lost will must be made before the Clerk of the Supe-' rior Court.</p> <p>■2. Lost bonds and deeds must be set up in a court of equity.</p> <p>3. No statute of limitations applies to the probate of a lost will.</p>

, at July Term, 1891, of Gran-ville Superior Court. This action was commenced by summons issued by a Justice of the Peace on the 25th of April, 1891.

This was a civil ACTION tried atibe December Term, 1891, of BuNCOMBE Superior Court by Merrimon, J. The plaintiff sued for the amount of a debt.. The defendants pleaded as defence a counter-claim for damages for slander of the business. The facts sufficiently appear in the opinion.

<p>Civil action, tried at August Term, 1891, of Orange Superior Court, before Winston, J.</p> <p>The defendant appealed.</p>

This was an appeal from the judgment rendered by Boy-kin, J., at the April Term, 1891, of the Superior Court of Granvblle, on the ground that the former judgment was not modified in accordance with the direction of the Supreme Court. (108 N. C., 34‘3). r,

This was a proceeding for a writ of certiorari, heard by consent upon petition and affidavits, as evidence before Boykin, L, riding the Fifth Judicial District, at Chambers in DurhaM, June 11th, 1891. The petitioners (the said town), without objection, introduced an amendment to the charter of said town, being chapter 276, Law's of 1854- 55.

This was a proceeding heard by Boykin, J., at the March Term, 1892, of the Superior Court of Moore County. Held: as a matter of law, that the plaintiffs were the owners of the judgment, and that the fifty dollars paid to said Murchison, was a payment on said judgment.

<p>Contract to Convey Land, Verbal and Written — Demurrer— Pleading — Statute of Frauds.</p> <p>1. A defendant cannot take advantage of the statute of frauds respecting a verbal contract to convey land by demurrer, because such contract is not void, but only voidablé when the statute is pleaded, and by demurrer the defendant elects to treat it as still subsisting.</p> <p>2. The reason of the statute was to get rid of the temptation to perjury, but this cannot arise where the facts are admitted by a demurrer.</p> <p>3. A verbal contract to convey land is good between the parties when its terms are agreed upon, and the statute is not pleaded.</p> <p>4. When there are several defendants, and the complaint sets up a good cause of action as to any one of them, a joint demurrer will be overruled ; but where several defendants are joined with the party to the verbal agreement, they cannot demur for this cause until the latter makes his election to ratify or repudiate the contract ; but he cannot make an election to the prejudice of persons whose rights have intervened.</p>

<p> Exceptions. </p> <p>An exception must point out specifically and definitely the error assigned, and not leave the Court to grope through the-entire record to discover error.</p>

This was a Motion to revise and reduce the compensation of arbitrators, heard at the October Term, 1891, of Durham Superior Court, by Winston, J. The following is the ruling and order: “The Court being of the opinion that the Court has no power to consider the evidence in the absence of sustained proof or allegation, or of some affidavit of a party setting forth and specifically charging fraud, collusion, conspiracy or unfairness, refuses said motion.” The defendant excepted.

<p>The material matter involved in this appeal is set out in the former appeal between the same parties. See ante, 137.</p>

This was a civil action for damages alleged to have been caused the plaintiff’s land's and crops by reason of the diversion of water upon his lands by the defendant company in the construction of its road- from Scotland Neck to Green-ville, as set out in the complaint, tried at the December Term, 1891, of Martin Superior Court.

<p>Contract — Notice— Water Supply.</p> <p>Where a section in a contract with a water company sets out that it should furnish water in the manner_there specified, “when required ” : Held, (1) that the terms of such requirement should be clear and explicit; (2) merely stating to the company’s officer that “it should bring its water up to the requirements of the contract, so as to throw water on fires,” is too vague, no reference being made to the section making the specification, or to its other provisions.</p>

This was a civil action, tried at February Term, 1891, of Guilford Superior Court, Boykin, /., presiding.

<p>Motion of appellee to dismiss.</p>

This was a special proceeding, begun before the Clerk by summons issued 19th November, 1890, by the next of kin and heirs at law of C. M. Avery against his personal representative B. A. Berry, for an account and settlement of said estate, and to recover their share of the fund in his hands, which plaintiffs contended arose from the sale of lands of C. M. Avery by said administrator.

This was a motion to set aside and vacate the judgment rendered' at Duplin Superior Court, August Term, 1891, before BoyJciv, J. The Court found the following facts The summons was served July 7th on the station agent at Goldsboro, and by him duly forwarded to the headquarters of the company at Atlanta, according to regulations; by the managing officer delivered to the General Southern Counsel, and by them, on July 18th, 1891, all the papers were sent to David Schenck, the…

Criminal action, tried before Brown, J, at Fall Term, 1891, of Beaufort Superior Court.

IndictmeNt for violation of section 906 of The Code, tried at February Term, 1891, of Chaven Superior Court, Bryan, J., presiding.

INDICTMENT for rape, tried at January Term, 1892, of Northampton Superior Court, Winston, J., presiding. The prisoners are charged in the first count of the indictment with a rape committed upon the prosecutrix; and, in a second count, one of them is charged with being present, aiding and abetting the other to perpetrate the offence.

<p>CRIMINAL action, tried before Winston, J., at November Term, 1891, of the Superior Court of Orange County. The facts appear in the opinion.</p>

<p>Bigamy — Marriage—Evidence—Appeal without Security.</p> <p>1. On an indictment for bigamy, the first marriage, like any other fact, may be proved'by the admission of the defendant, or by circumstantial evidence. The weight to be given to the evidence is a matter for the jury.</p> <p>2. An application for leave to appeal without security under section 1235 of The Code, is fatally defective if the affidavit does not state that the application is made in good faith.</p>

Indictment for murder, tried before Boykin, J, .at Fall Term, 1891, of Jones Superior Court. The indictment charges the defendant with the murder of William Sutton. He pleaded not guilty. ’The evidence produced on the trial tended very strongly to prove the murder as charged. Numerous witnesses were examined for the State. The prisoner introduced no evidence.

<p>Fornication and Adultery — Evidence—Former Acquittal.</p> <p>1. On the trial of an indictment for fornication and adultery, evidence was offered tending to prove that the male defendant, white, and the female defendant, colored, had- several times been seen riding together in male defendant’s vehicle ; that they frequently ate at the same table; that female defendant, who was a married woman, but who had left her husband, had given birth to two children after separating from her husband ; that the male defendant had been seen nursing and playing with them, and had his picture taken with theirs, and that the female defendant employed servants for both : Held, to be sufficient to be submitted to the jury, and warrant a conviction.</p> <p>2. Former acquittal or conviction, to be available as a defence, must be specially pleaded. s</p> <p>3. Upon an issue of former acquittal or conviction, the recqrd thereof is the best evidence, and must be produced, or its loss shown.</p>

<p>Appeal — Case.</p> <p>If there is no case on appeal and no errors appear in the record proper, the judgment will be affirmed.</p>

. This was a bastardy proceeding, tried before a Justice of the Peace on 23d of October. From his judgment an appeal was taken and docketed in the Superior Court of Bladen on October 26th, 1891, being the first day of the Term. At that term, when the case was called for trial, before Mclver, J., the defendant objected that, under Rule 24 of the Superior Courts, the case could not stand for trial till next term. The objection being overruled, the defendant excepted.

<p>CRIMINAL action, tried at February Term, 1892, of Ire-dell Superior Court, Mclver, J., presiding.</p> <p>The indictment charges the defendants with an assault and battery done with a deadly weapon. After the case was called for trial, but before the trial began, the Marshal of the United States in and for the Western District of North Carolina served the Clerk of the Superior Court with a paper-writing below set forth, by leaving a copy thereof with him, signed by the Clerk of the Circuit Court of the United States at Statesville, in the AVestern District of North Carolina, by his deputy, the Clerk being absent. The defendant’s counsel caused this paper-writing to be read before the Court, and “ demanded that any further action in the cause by the State Court be stayed, considering that this action of the said Circuit Court gave the Circuit Court jurisdiction in the cause.” The Solicitor for the State insisted that said writing was of no effect, and did not deprive the State Court of jurisdiction. The Court denied the motion to stay proceedings, and directed that the trial take plá'ce. The defendants “ protested,” excepted, and pleaded not guilty. There was a trial, and a verdict of guilty; a motion in arrest of judgment, which was denied; and judgment, from which the defendants appealed to this Court.</p> <p>The following is a copy of the paper-writing above mentioned :</p> <p>UNITED States of America, \ AVestern District of North Carolina. J</p> <p>The, President of the United States of America to the Marshal of the Western District of North Carolina — Greeting:</p> <p>You are hereby commanded to make known to J. PI. Hill, Clerk of the Superior Court, that whereas the defendants J. C. Sullivan, J. Ii. Ayers and J. H. McNeely, now in Court, have filed their petition before the undersigned, setting forth that a bill of indictment was returned into the Superior Court of Iredell County by the Grand Jury at the February Term, 1892, of said Court, charging said defendants with the offence of an assault and battery upon the person of one James Mitchell; and whereas the said J. G. Sullivan, J. IT. Ayers and J. IT McNeely showeth in their said petition (hat at the time of the alleged offence they were an officer and employee of the United States Government, employed by a Commission of the Collector of Internal Revenue of the United States for the Western District of North Carolina, said Sullivan being a deputy collector and the other defendants acting by his authority, and by virtue of such authority did the act complained of. Whereas, they have demanded in their said petition the removal of the aforesaid indictment into the Circuit Court of the United States of America for the Western District of North Carolina, under section 643 of the Revenue Statutes of the United States: Now, therefore, you are commanded to make known to the said Superior Court of North Carolina, by the delivering of a copy hereof to the Clerk of said Couit, or by leaving it at his office, that the said cause is hereby removed for trial into the said Circuit Court of the United States next to be holden for the said District at Statesville on the 3d. Monday in April, 1892.</p> <p>And that it is entered on the docket of said Circuit Court of the United Slates, and will be proceeded with as a cause originally commenced in said Court; and further, that it is required of said Superior Court of North Carolina to send to the said Circuit Court of the United States, distinctly and plainly under the seal of said Superior Court, a transcript of the record and proceedings in said cause in that case in that Court, with all the things touching the same, by whatever name the parties may be called, so that we may have (hem before the Judges of our said Circuit Court of the United States at the time and place aforesaid, to-wit, at Statesville, on the 3d Monday in April, 1892; and further to do there-' for what of right we shall see fit to be done. Herein fail not, and have you then and there this writ.</p> <p>Witness, the Honorable Melville W. Fuller, Chief Justice of the United States, at Statesville, in said District, this the 12th day of February, 1892, and in the 116th year of the Independence of the United States.</p> <p>(Signed) H. C. Cowles, Clerk.</p> <p>By Ii. Y. Furohes, Dep. Clerk.</p> <p>A true copy.</p> <p>Teste: (Signed) II. C. Cowles by II. V. Furches, D. C.</p>

PetxtioN of defendants for writ-of certiorari, heard before the Supreme Court.

<p>Constitution — Liquor Selling and Manufacture — Police Regulations — Statute, Suspension of.</p> <p>1. The statute, chapter 4, Private Laws, 1891, prohibiting the manufacture of spirituous liquors within three miles of the Orphans’ Home, near Barium Springs, Iredell County, without the written permission of the Superintendent of the Home, is a constitutional exercise of the power of police regulations, and operates on those who, at and before the time of its enactment, were engaged in the manufacture of such liquors within the prescribed territory.</p> <p>2. The fact that, upon the destruction of a portion of the buildings connected with the Home, the inmates were removed temporarily to another place while the buildings were reconstructed, did not have the effect to suspend the operation of the statute.</p> <p>3. An act may be in part a public statute and in part a private one.</p>

This was an indictment for fornication and adultery, tried at Fall Term, 1891, of the Superior Court of UnioN County, before ITolce, J. The State offered one T. J. Ezzell as a witness, who testified… Held: but was admitted simply as a part of the conversation between the witness and the defendant,'and in order to make defendant’s answer to witness’ question intelligible, and permitted the paper to be read for this purpose. Defendant excepted.

The defendant was arraigned at August Term, 1891, of the Criminal Court of Mecklenburg- County, before Meares, J., upon the following indictment: “ The jurors for the State, upon their oaths, do present, that W. T. Cutshall, late of Mecklenburg County, on the 1st day of January, A. D. 1880, did marry a woman whose name is to the jurors unknown, and the said person last mentioned the said W. T. Cutshall then and there had for a wife, and that the said W. T. Cutshall…

This was an indictment for failure to provide an adequate support for children, tried at Spring Term, 1892, of the Superior Court of Alexander County, before Bynum, J. The indictment is as follows: “The jurors for the State, upon their oaths present, that J. Nelson Kerby, late of Alexander County, on the 1st day of January, 1890, with force and arms, at and in said county, while living with his wife, one Mary Kerby, unlawfully and wilfully did neglect to provide an adequate…

This was an indictment for selling intoxicating liquor to a minor, tried before Meares, J., at January Term, 1892, of the Criminal Court of Mecklenburg County. The defendant Kittelle was, at the time of the alleged sale, the proprietor of the Buford Hotel, in Charlotte, and of the bar connected therewith. The defendant had two clerks in his bar-room.

<p>Verdict, Special — Municipal Ordinance— Taxation — Tícense.</p> <p>Upon the trial of an indictment charging the defendants with the prosecution of a certain trade without paying a tax and procuring a license, in violation of a municipal ordinance, the jury returned a special vex-dict, but failed to find the facts in refei'eoce to the payment of the tax and issuance of the license: Held, that the verdict was fatally defective.</p> <p>Aveky, J., dissenting.</p>

This was an APPLICATION for the writ of certiorari to bring up defendants’ case on appeal. The appellant’s counsel agreed, in writing, that the Solicitor should have fifteen days within which to serve his counter-case or exceptions to appellant’s case.

<p>Jurors, Grand — Challenges—Plea in Abatement — Indictment, Quashing.</p> <p>1. Plea in abatement filed before pleading generally to an indictment, is the proper way to raise the question of the qualification of an individual grand juror. Such plea will not be sustained, unless it shows the want of some positive qualification prescribed by law. All other objections to the competency of grand jurors must be taken by challenge in apt time.</p> <p>2. The fact that the son of the prosecutor, in an indictment for larceny, was a member of the grand jury, and actively participated in-finding the bill, did not vitiate the indictment, and it was error to quash it on that ground.</p>

<p>INDICTMENT for violation of a city ordinance, tried on appeal from the judgment of the Mayor of the City of Ashe-ville, at October Term, 1891, of the Criminal Court of Buncombe County, before Carter, J.</p> <p>The jury returned a special verdict, substantially as follows:</p> <p>1. That the city of Asheville is a corporation, etc.</p> <p>2. That the Asheville Mission Hospital is a corporation,, etc., and has for several years been conducting a hospital for sick and destitute persons, on a lot of land owned by it in the city of Ashevilie.</p> <p>3. That the city duly passed the following ordinance: “That no person, firm or corporation shall build or erect within the limits of the city any house or building of any kind or character, or otherwise add to, build upon or generally improve or change any house or building, without having first applied to the Aldermen and obtained a permission for such purpose.”</p> <p>4. On the 15th of May, lbl)l, the architect and agent for said Mission Hospital applied to the Aldermen for permission to erect a building on said lot, to be used as a hospital for sick and diseased persons, in connection with the building already on said lot, and which had been previously used by said Mission Hospital for said purpose.</p> <p>5. That the following is a by-law of said Mission Hospital: “No person afflicted with infectious or contagious disease shall be admitted to the hospital, except by special permission and arrangement of the Board of Managers, acting under the advice of the chief physician, or some other member of the Medical Board lawfully acting in his stead;” but cases of typhoid fever have been admitted into said hospital and cared for there.</p> <p>6. That a petition was filed by a number of citizens of the city of Asheville asking the Aldermen to refuse to permit said hospital to erect said building, and that the Board of Aldermen, on the 12th of June, 1891, appointed a committee to investigate the matter, and on the 26th of June, 1891, the Aldermen refused to grant the permission asked for, without assigning any reason for such refusal.</p> <p>7. That after said refusal, work was commenced on said building and prosecuted for sometime under a contract previously made by the defendant with the said Mission Hospital, and under the direction of its managers.</p> <p>8. That on the 28th of August, 1891, the Aldermen passed the following ordinance: “That no pefson or persons shall construct, or shall encourage or aid in the construction of, or shall work as a contractor, carpenter, laborer, brick or stonemason, of any other capacity in the construction of any building within the corporate limits of the city, for the construction of which building no permit has been granted by the city: Provided, however, that no act shall be deemed a violation of this ordinance, except such as are committed by the party or parties charged with such violation after- he or they shall have been duly notified by the Chief of'Police that no permit has been granted for the construction of said building. Any person violating said ordinance shall, on conviction thereof, be fined $50.”</p> <p>9. The defendant had knowledge of the foregoing facts and ordinances, and was notified by the Chief of Police to stop work on said building, but he disregarded said notice and continued to work on the same until his arrest.</p> <p>10. That on the 5th of October, 1891, the defendant was arrested by a warrant, tried and convicted before the Mayor, and appealed to the Criminal Court of Buncombe County.</p> <p>If the Court is of opinion that said ordinances are valid and constitutional, the jury find the defendant guilty; but if the. Court be of opinion that they are invalid and unconstitutional, the jury find the defendant not guilty.</p> <p>The Court being of opinion that the ordinances are valid and constitutional, adjudged that the defendant was guilty, and that he pay a fine of fifty dollars and costs. From this judgment the defendant appealed to the Supreme Court. •</p>