Volume 111 — North Carolina Reports

This was a civil actioN, brought to recover land, tried at Fall Term, 1890, of the Superior Court of Beaufort County, Connor, Both parties claimed title through Noah W. Guilford, who was admitted to have been the owner of the laud in controversy prior to September 1st, 1871, when he executed a deed to his son Charles F. Guilford, who, in turn, conveyed to the defendants by deed, dated December 22d, 1879, referring to the deed executed by Noah W. Guilford to himself for…

This is a motioN in the cause to subject J. S. Mitchell, a Sheriff, to liability as special bail by reason of the escape of the defendant, who had been arrested upon mesne process in this action, heard at Pall Term, 1891, of Hyde Superior Court, Brown, J., presiding. The defendants appealed.

<p>Civil action for damages, commenced before a Justice of the Peace, and tried upon appeal at Fall Term, 1891, of Hyde Superior Court, Brown, J., presiding.</p>

Civil action, tried at Fáll Term, 1891, of. Pasquotank Superior Court, Broiun, J., presiding. It. appears from the pleadings that, on the 18th of January, 1887, the plaintiffs, through the agency of the defendant, sold and conveyed to W. 0.

Civil ActioN, tried at Spring Term, 1892, of PasquotaNK Superior Court, Shvford, J., presiding. The portions of the complaint referred to in the opinion are as follows: “ 5.

<p>This was a special PROCEEDING commenced before the Clerk of the Superior Court of PasquotaNK County, and heard before Shvford, J., upon appeal at Spring Term, 1892, of PasquotaNK Superior Court.</p> <p>The plaintiff asks for sale of the land described in the petition for partition.</p> <p>The petitioner owns the interest of Jane R. Pendleton and R. D. AVilliams. The defendants George and Kate Pendleton are infants and unmarried and without issue and oppose the sale.</p> <p>The land cannot be actually partitioned, but sale must be had for that purpose.</p> <p>The Court refused to grant an order of sale for partition-Plaintiff accepted and appealed.</p> <p>All the parties claim under a deed from Charles Guirkin, trustee, and Andrew L. Pendleton to Jane R. Pendleton, George W. Pendleton and Kate Pendleton, executed on the 1st day of March, 1888, the material portions of which are:</p> <p>“ That for and in consideration of the premises, and the further sum of ten dollars in hand paid by the parties of the second part, the receipt of which is hereby acknowledged, the said Charles Guirkin, trustee as aforesaid, and said Andrew L. Pendleton have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell and convey unto the parties of the second part in interest as to time and amount of enjoyment and so forth as hereinafter set out, the follow pieces and parcel of land, to-wit:</p> <p>“ To have and to hold the above mentioned and described i]*********** property unto the said Jane R..Pendleton for and during the term of her natural life free from the control and encumbrances of any and all persons, whatsoever.</p> <p>“ To have and to hold one-third 'of the remainder unto the said Robert D. Williams and his heirs forever. To have and to hold the other two-thirds of the said remainder in equal parts in severalty unto the said George W. Pendleton and Kale Pendleton each for his‘or her natural life, but if the said George or the said Kate shall die, leaving issue of their body, or the body of either, or the issue of said issue, living at the time of his or her death, then to have and to hold the part of the one so dying and so leaving lineal heirs unto the said George W. or unto her,-the said Kate, and his or her heirs in fee forever. But if the said George W. or the said Kate shall die without leaving-such issue, or the issue of such, at his or her death, then to have and to hold the remainder after their life-estate unto the said Robert D. Williams and his heirs in fee. But if either the said George or the said Kate shall die, not leaving issue of the body of the one dying, but leaving the other surviving, then to have and to hold the part of the one so dying, one moiety thereof unto the said Robert I). William^ and his heirs, and one-half thereof unto the survivor for and during the term of their natural life, and if the survivor shall die, leaving issue living at his or her death, or the issue of such, then to have and to hold the part last mentioned unto the said survivor and his or her heirs. But if the survivor shall die, not leaving issue at his or her death, or the issue of such, then the remainder of said life-estate herein granted to have and to hold unto the said Robert D. Williams and his heirs. The object of thus limiting the estate herein granted being to secure the same to the blood of the said Jane R. Pendleton in exclusion of the relations of the half-blood of the said George W. and Kate on side of their father and said Andrew L. Pendleton.”</p>

This is AN appeal from an order of Shuford, /., made in the above-entitled cause, at Spring Term, 1892, of the Superior Court of Hertford County. On the 26th day of March, 1892, the plaintiff caused a notice and subpoena to be served on the defendant, that at the time and place named he would examine the defendant as a witness in this action, then pending. The defendant filed the following answer before the Clerk : ‘‘1.

In 1888 the plaintiff commenced an action in the Court of a Justice of the Peace against the defendant Q. C. Williams to recover one hundred and fifty dollars (which it was alleged that he had embezzled as plaintiff’s agent), and, pending the action, procured an order of arrest, which was executed, and the other defendants became bail. In August, 1888, the p'aintiff recovered judgment for the amount claimed. Q,.

<p>Evidence — Will—Devise—Laws of other States and Countries.</p> <p>1. The existence of the unwritten law of another State or foreign country may be proved by competent witnesses.</p> <p>2. A will made by one domiciled in another State, and which is there subject to be construed by the rules of the common law, will be construed as if it had been made in this State, unless it is made to appear by competent evidence, that a different construction would prevail in the State where the testator resided.</p> <p>3. A testator, domiciled in the State of Maryland, devised to “ M., for the benefit of S., all of Pasquotank County, N. C., the sum of $1,000, the interest to be paid her during her life, and at her decease M. to distribute the principal as her judgment may determine for the poor'of said county.” M. received the fund and paid the interest as directed, but died — leaving her husband surviving— without making any provision for the disposition of the fund after the death of S., who also soon after died. It was proved upon the trial that under the laws of Maryland, devises and legacies for charitable uses were void: Held, That upon the death of S. the fund should be paid to the heirs or distributees of the testator or their assigns.</p>

Civil Action, tried at Spring Term, 1892, of Pasquotank Superior Court, Shuford, J., presiding. The following are the facts: On the 6th day of March, 1891, George & Co. recovered judgments against R. D. Williams, and on the same day docketed them in the Superior Court of Pasquotank County.

This was a civil action, tried at the Fall Term, 1891, of the Superior Court of Beaufort County, before Brown, J. One W. P. Baugham had been constituted agent of the defendant,at Washington, N. C. There was evidence tending to show that one Bragaw was employed as clerk in the office of Baugham and to solicit insurance, and that he did solicit the plaintiff to insure his house, which has been burned, and the loss of which gives rise to this action.

Civil ACTION, tried before Brown, J., at Pall Term, 1891, of Beaufort Superior Court, on appeal from the judgment of a Justice of the Peace.

, and a jury, at Fall Term, 1891, of Beaufort Superior Court. The pleadings were oral.

Civil ACTION against the Sheriff for a trespass, tried at Spring Term, 1892, of Beaufort Superior Court, before Shvford, J. W. B. Rodman, an attorney, held a claim for collection in favor of one Thomas against one Gaskins.

Civil ACTION, tried on an appeal from the Court of a Justice of the Peace, at Spring Term, 1892, of Edgecombe Superior Court, Brown, J, presiding. The plaintiff appealed. The case is stated in the opinion.

Civil action, tried on appeal from the judgment of a Justice of the Peace, at Spring Term, 1892, of the Superior Court of Edgecombe County, Brown, J., presiding. The plaintiffs sued for the non-payment of $115.45, and interest on the same from August 20, 1890, due on account for corn sold by them to the defendants. The defendants, answering the complaint, say: “ 1. That they deny that they owe plaintiffs anything.

<p>Civil action, tried at Edgecombe Superior Court, Spring Term, 1892, Brown, J., presiding, to recover damages from flooding land.</p> <p>The plaintiff testified in substance:</p> <p>The lands lie right on Conetoe creek, and are known as the “ Hopkins place.” I have known Conetoe creek since 1872. The railroad embankment was originally constructed in 1869; a portion of it washed away immediately after it was built, and it was rebuilt in 1882. The creek at the railroad is seven hundred and twenty yards wide; the average height of the railroad embankment across it is about four and one-half feet, in some places five feet. One hundred and thirty-six yards (of the stream) is entirely cut off by the railroad embankment. Prior to the railroad embankment, it was seldom the water got over the land; it had one hundred and thirty-six yards more to run off in. When it was running over the county road it ponded water very little on my land, only on the lowest parts of it. Prior to the building of the railroad we never had any water, and I never heard of such a thing. We never failed to make a good crop before the railroad. My experience since the building of the railroad in 1882 is that we have been more or less troubled with water every year. Since the building of the railroad I have seen at least one-half of my land flooded; it could not have been caused by the county dam. Free from the interference of the overflow, and a fair crop season, my land yields a bale of cotton to the acre. My damage in 1888 was $1,000.</p> <p>After the railroad was built, in 1882,1 never made another fair crop. We have had trouble with water ever since 1883. Ever since the construction of the railroad I have been troubled with water, more or less; this same dam of which I now complain has ponded it back on me. Before the railroad was constructed, in 1882, the water ran off my land in twenty-four hours in a wet spell. In 1889 it did not run off. Generally, it takes from ten to fifteen days. This did not occur so every year, but it did occur in 1887,1888 and 1889. I took no action on account of this damage until March, 1890. Ordinary and usual rains will pond my land by reason of the railroad; it would not take an extraordinary rain to do it; heavy rains pond the water. My cultivated land is right on the creek — ten* feet of the creek. I very readilv detected the damage done by tbe railroad embankment. The creek has very little fall, about as little as any I am acquainted with; it is a broad, flat low ground. We made a tolerably good crop in 1883; 1884 was dry, and we made a tolerably good crop; 1885 was a wet year. We had a freshet in June; after that we had no big rains. In 1886 we had a freshet the last of May. We kept on planting in 1887, 1888 and 1889 as long as the season would permit planting.</p> <p>There was other testimony offered by plaintiff in support of his evidence.</p> <p>The defendant introduced no testimony.</p> <p>Among other instructions, the defendant prayed the Court to instruct the jury that, upon the plaintiff’s testimony, he is not entitled to recover in this action Refused. Exception by the defendant. " *</p> <p>The defendant moved, at the close of the evidence, for judgment, upon the ground that the plaintiff’s own evidence showed contributory negligence, and that the action be dismissed. Motion denied. Exception by the defendant.</p> <p>Among other things, the Court instructed the jury as follows:</p> <p>“The third issue relates to what the law calls contributory negligence, and the Court is of the opinion, after careful consideration, that the evidence is not sufficient to show contributory negligence, therefore the Court instructs you to answer the third issue, No.”</p> <p>The jury rendered their verdict, finding all issues for the plaintiff, and from the judgment rendered thereon the defendant appealed.</p>

Civil ACTION, tried at Spring Term, 1892, of Craven Superior Court, Winston, J, presiding. PLAIN TIFF’S APPEAL. The action was brought to recover certain machinery. A jury trial was waived and the Court found the facts as follows: The property was sold and delivered to the defendant by the plaintiff under a contract hereinafter set out. It was admitted that the defendant had paid $100 on the purchase-money and $100 freight on the property.

Civil action to recover damages for the alleged negligent burning of plaintiff’s mills, caused by the defendant in blasting near said mills, tried at March Term, 1892, of Halifax Superior Court, Brown, J., presiding. The facts pertinent to the questions discussed and decided by the Court are slated in the opinion.

Civil action, tried upon demurrer at Spring Term, 1892, of CuaveN Superior Court, Brown, J., presiding. The material parts of the complaint and record are as follows: 2.

<p>Infants — Judicial Sale — Decree, Confirmation — Guardian.</p> <p>In an ex parte partition of an infant, by her guardian, it was stated, among other things, that the petitioner had received an offer of $125, which was more than the worth of the land. Opon the filing of the petition the Court, without taking any means to ascertain the necessity for the sale, directed it to be made, and that it should be “ first advertised at the'Court-house and three other public places,” and no bid be received less than $125, and that the guardian should make conveyance. The land was sold to W, for $130, who paid the purchase-money and took conveyance; report of this sale was filed, but never confirmed. Subsequently the infant, by her next friend, moved to vacate the sale and for an order of resale: Held,</p> <p>1. That the order of sale was not a final decree.</p> <p>2. That the terms of the decree required a public sale.</p> <p>3. That while a formal direction to make title is not always necessary, a confirmation of sale cannot be dispensed with.</p> <p>4. That it was not error to set aside the sale and direct another; but the decree for resale should direct an account of the rents and accounts paid by the purchaser, whcvwould be entitled to a lien on the fund for any balance found due him on such accounting.</p>

Civil actior tried at March Term, 1892, of Halifax Superior Court, Brown, J., presiding, upon the following agreed statement of facts: “On the-day of March, 1882, Edward Anderson and wife Letitia and Matilda A. Sexton executed their note to John Beavans, Sr., for $150, and secured the same by mortgage on land (which was registered), and was then the property of said Matilda A. Sexton, a minor. “On July 10, 1882, said parties made another note for $50 to said Beavans, and…

<p>Civil action, heard upon case agreed at Chambers, in CraveN County, before Bryan, J., on the __ day of_, 1892.</p>

Civil ACTION, tried at May Term, 3892, of Craven Superior Court, Winston, J., presiding. It appeared that the DeLoach Mill Manufacturing Company of Atlanta, Ga., contracted to sell and deliver to one Campen certain mill machinery, and in pursuance thereof, shipped to the place of his residence, but to their own order, the property, and drew upon him with bill of lading attached, which they endorsed to the plaintiffs, who sent the papers to a bank in Newbern for collection.

<p>Elections — Devices on Ballots.</p> <p>1. The term “device” in the statute regulating elections (The Code, §2687), means any distinguishing mark; and hence when certain ballots cast at an election had upon the outside or back the letters O. K. in pencil, they were within the prohibition of the statute and were properly rejected.</p> <p>2. "The statute prohibiting devices upon ballots embraces elections for town and city officers.</p>

<p>Contract — Evidence.</p> <p>Plaintiff made a written contract with defendant to erect a bridge in accordance with specifications at a point where there was an old bridge, and in the execution of the contract removed the timber from the first structure to another point; plaintiff having been paid the contract price, brought suit to recover compensation for services rendered in the removal of the old bridge: Held, that there being no allegation or proof that this service was performed at the request of defendants, or that they took benefit under it, he was not entitled to recover.</p>

<p>Clerk — Deed, Probate of — Subscribing Witness.</p> <p>A Clerk is not incompetent to take the acknowledgment of the execution of a deed because he is a subscribing witness to the document.</p>

<p>Actions Against the State — Jurisdiction—Agriculture, Department of.</p> <p>1. The Board of Agriculture is a Department of the State Government, and an action against it to recover money alleged to have been wrongfully collected*by it as a license tax cannot be maintained, the State not having given its consent to be sued in that respect.</p> <p>2. The objection to the jurisdiction of the Court because the action is against the State may be made ore tenus at any stage in the proceedings when the fact is made apparent.</p>

<p>This was a MOTION, tried before Bryan, J., at the August Term of JoiinstoN Superior Court.</p> <p>It appeared upon the hearing of the motion, that on the 31st day of October, 1891, A. B. Vinson had confessed judgment in favor of his sister Esther Vinson for the sum of $2,250, with interest from November 2,1876, and that judgment was duly docketed in the office of the Clerk of the Court of Johnston County on the same day, to-wit, October 21, 1891.</p> <p>The following is a copy of the judgment-roll which was introduced as evidence :</p> <p>“IN TI-IE SUPERIOR COURT — JohNstoN County.</p> <p>Ester Vinson v. A. B. Judgment by Confession.</p> <p>I, A. B. Vinson, hereby confess judgment in favor of the</p> <p>above-named plaintiff for the sum of twenty-two hundred and fifty ($2,250) dollars, and authorize the entry of judgment therefor against me, with interest at six per cent, from November 2, 1876. This confession is for the amount due on a bond under seal executed by the defendant to plaintiff, dated November 1, 1876, and the defendant A. B. Vinson maketh oath—</p> <p>1. That said amount of $2,250, with interest at six per cent, from November 2, 1876, is justly due by him to the plaintiff.</p> <p>2. That said amount is due by him to the plaintiff on a bond under seal for borrowed money due and payable November 2, 1876.</p> <p>(Signed) A. B. Vinson.”</p> <p>NORTH CAROLINA — Joi-iNstoN OouNty.</p> <p>A. B. Vinson being sworn, says that the facts set forth in the foregoing confession are true.</p> <p>- (Signed) A. B. ViNSON.</p> <p>Sworn to and subscribed before me, October 31, 1891.</p> <p>W. S. Stevens, O. S. G.</p> <p>On the back of the judgment-roll was endorsed :</p> <p>“Upon the foregoing confession and affidavit of the defendant, it is adjudged by the Court that the plaintiff recover of the defendant the sum of $2,250, with interest at six per cent, from November 2, 1876. This October 31, 1891, at 4:30 o’clock p. m. W. S. Stevens, G. S. C.”</p> <p>Firmly stuck to the judgment-roll with mucilage was a paper-writing in the following-words and figures:</p> <p>“$2,250..</p> <p>“ One day after date, I promise to pay to Esther Vinson the sum of twenty-two hundred and fifty dollars for value received. This November 1, 1876.</p> <p>(Signed) A. B. Vinson.- [Seal.]”</p> <p>Witness: D. T. Vinson.</p> <p>The plaintiffs obtained judgment against the defendant A. B. Vinson for the sum of $112, with interest from October 15, 1885, at 8 per cent. This judgment was docketed November 2, 1891, at 12 o’clock M. The plaintiffs J. M. Wilson and G. F. Uzzle also obtained other judgments against the same defendant (A. B. Vinson), which were docketed subsequently.</p> <p>The plaintiffs J. M. Wilson and G. F. Uzzle moved to set aside the confessed judgment, and have the same declared void—</p> <p>1. Because it did not conform to the requirements of the statute.</p> <p>2. Because sufficient facts were not, by the affidavit and confession, disclosed to enable the Court to acquire jurisdiction.</p> <p>3 Because the judgment was void upon' the face of the facts set forth.</p> <p>Motion dismissed. Plaintiffs excepted and appealed.</p>

This cause was heard'at Spring Term, 1892, of Craven Superior Court, Winston, J., presiding, upon a petition for betterments; vide same case, 109 N. C., 57. The defendants appealed. The case is stated in the opinion.

This was an action for damages for waste alleged to have been committed by defendant, tried at November Term, 1892, of Granville Superior Court, Winston, J., presiding. The plaintiff took a nonsuit and appealed. L. D. Estis testified: “Duncan Loyd, a son of Sally Loyd, came to see me in regard to buying the land described in the complaint.

Civil action, tried at November Term, 1891, of Person-Superior Court, Winston, J., presiding. The action was brought by plaintiff administrator to recover damages for the killing of his intestate by blasting in the construction of the railway of the Lynchburg and Durham Railroad Company. The defendants Moorman & Co. were Jointly sued with the railroad company.

This was a civil action, tried on a statement of facts agreed after an appeal from a Justice of the Peace at April Term, 1892, of the Superior Court of Granville County, Whitaker, J., presiding.

This was a civil ACTION, tried before Whitaker, J., at April: Term, 1892, of Granville Superior Court.' Plaintiff sued on the written contract set out in the opinion. Defendant alleges that said contract was not binding on him, as it had not been registered. R. W. Lassiter, one of the plaintiffs, then testified that he sold the land to defendant; that be had a bond to make title to one-half undivided interest from R. W. Winston and wife.

This was a civil action, tried before Whitaker. J., at the Spring Term, 1892, of Person Superior Court, upon the following agreed facts: The plaintiffs are the children of E. R. Amis, a daughter of John Paylor.

Civil actioN, tried at August Term, 1892, of Orange Superior Court, Connor, J, presiding. The action was brought to recover a tract of land. Both parties claimed under Nash Booth, the plaintiffs as the heirs at law of their mother, a sister of Booth, and the defendants as his children and heirs at law.

This was a civil ACTION, tried before Connor, J., and a jury, at August Term, 1892, of the Superior Court of OraNGE County. (See same case, 110 N. C., 292.) When this cause was called for trial, the defendants, with leave of the Court, demurred to the complaint, for that the plaintiffs had in their complaint set forth several causes of action, which, under The Code, could not be joined. The defendants did not offer to withdraw their answers heretofore filed.

This was a civil ACTION, tried before Brown, J., at March Term, 1891, of Buncombe Superior Court. The plaintiff brings this action to recover divers sums of money, aggregating $900, vtfnch he alleges the defendant owes and refuses to pay to him.

Civil ACTION, tried before Whitaker, J., at February Term, 1892, of GraNVILLE Superior Court. Plaintiffs’ agents and commission merchants in Richmond, in May, 1891, wrote and delivered to defendant’s agent a message stating that they had received an offer of twenty-seven cents per pound for tobacco belonging to plaintiffs on deposit with them, and asked a speedy reply. The defendant’s agent negligently substituted the word “forty” for “twenty” in the message.

<p>Clerks — Execution—Salaries and Fees — Penalty—Statutes, Construction of.</p> <p>Clerks of the Superior Court will not incur the penalty prescribed in § 470 of The Code for failure to issue execution within sixty days, unless the plaintiff pays or tenders him his fees for that service. (Williamson v. Kerr, 88 N. C., 10, distinguished.)</p>

Civil ACTION, tried before Shuford, J., at Spring Term 1892, of the Superior Court of ChowaN County. The following are the facts agreed : 1. On the 2d day of September, 1887, W. W%and Samuel E. Morris executed to W. S. White a lease. 2.

Issue of devisavit vel non, tried at Fall Term, 1891, of ORANGE Superior Court, before Winston, J. Judgment for the caveators. Appeal by the propounders.

<p>PETITION OE PLAINTIEE TO REHEAR. (See 109 N. C., 346.)</p>

Civil ACTION, tried at September Term, 1892, of Superior Court of Northampton, before Brown, J. The debtor, J. C. Lassiter, assigned his stock of goods and many other articles of personal property, subject to his exemption “to be set apart to him in the manner provided by law,” and also all his notes and other evidences of debt, to the plaintiff as trustee, with power to sell publicly and privately and apply the proceeds as they might arise from sales and collections: first…

This was a civil action*, begun in Caldwell County, and heard by Graves, J., at Chambers, on motion to vacate order of a.rrest. It is alleged in the complaint, that the plaintiff, being an inmate of the home of the defendant, and a dependent and employee of his mother, was seduced by the defendant under promise of marriage.

Civil actioN to recover land, tried at Spring Term, 1892, of JacksoN Superior Court, before IloJce, J. Plaintiff claimed the land in controversy under a deed made to him by the Sheriff of Jackson County, dated April 23, 1891, the said land having been sold under execution against one of the defendants, Nathan Coward, returnable to Spring Term, 1891, of Jackson Court.

This was a civil ACTION upon a note and mortgage, tried a,t Spring Term, 1892, of TRANSYLVANIA Superior Court, before Holce, J. The case upon former appeal is reported in 106 N. C., 512, And, pursuant to the decision therein, A. C. Williams, the vendor, was made a party plaintiff. Upon the trial the following facts were admitted : 1.

This was a civil actior, brought by the plaintiff to recover damages for the negligent killing of her intestate by the defendant’s engine, and tried at April Term, 1892, of Wake Superior Court, Connor, /., presiding. ^ After the testimony was closed the Court intimated that, the plaintiff was not entitled, in any view of the evidence, to recover. The plaintiff submitted to judgment of nonsuit, and appealed.

<p>Negotiable Instruments — Notice of Equities — Inadvertence of the Court — Plan of Payment — Evidence.</p> <p>1. A negotiable note, payable at the Durham Fence Factory, or the office of W., W. & Co., does not, npon its face, show a circumstance calculated to excite suspicion of a purchaser for value before it was due, even though he knew of no such fence factory in operation there, the other place of payment being well known, and such purchaser was not bound by the equities existing between the ■original parties.</p> <p>2. In the former decision of this case (109 N. 0., 291), this Court was not advertent to the fact that there was an alternative description of the place of payment in the note, and was not warranted in the assumption that the plaintiff knew the place named in the note had no existence.</p> <p>8. The fact that the negotiator of the note was a stranger, and sold it- and others for considerably less than their face value, and the other circumstances relied upon by the defendant, were not so suspicious as to put the onus of further inquiry upon the purchaser.</p>

This was a bulb on the Sheriff of Forsyth County to show cause why a judgment nisi should not be made absolute, which was taken at the February Term, 1-892, of said Court, for failure to return an execution issued from the Superior Court of Rockingham County on the 30th day of November, 1891, and mailed to him on the 1st day of December, 1891, returnable to the said February Term. Three letters from A. J. Boyd attorney for S. Ii.

MotioN in the Supreme Court for a certiorari to the Judge below, requiring him to find the facts upon which the judgment was rendered as hereinafter stated.

<p>This was a civir, action of trespass on land, to try title, and for damages, tried at Fall Term, 1892, of Büjrke Superior Court by Armfield, J.</p> <p>The following issues were submitted :</p> <p>1. Did the defendants commit the trespass alleged in the complaint on the lands of plaintiff described in the complaint ?</p> <p>2. What damage has plaintiff sustained by reason of said trespass?</p> <p>Plaintiff offered a deed from I). W. Stacy to S. M. Asbury, dated 16th June, 1890.</p> <p>A deed from Jos. Brittain, Sheriff, to D. W. Stacy, dated January 28, 1869; to which defendants object.</p> <p>A deed from Joseph Ferree, trustee, to D. W. Stacy, dated 23d May, 1856.</p> <p>A deed from John PI. Pearson, Sheriff, to Jamison Queen, dated 20th Februaiy, 1852; to which defendants object and except.</p> <p>Grant from the State to William B. Craig and Mark Brit-tain, dated 4th September, 1818, and entered 30th September, 1817.</p> <p>Plaintiff introduced D. W. Stacy : “I am seventy-one years old; I moved to this county in 1837; settled on the land in 1856; my house was between ‘ I ’ and ‘ J; ’ I lived there and had possession till I sold plaintiff in 1890 ; made my garden in 1856; I had stables on the disputed land and a workshop ; my predecessor, Jitnson Queen, used it for a store-house ; I moved off in 1872, but had tenant there till sold ; some of the disputed land was partly cleared when I went there; I cleared some twelve or fifteen acres; part of it was in possession of Dale; I got my firewood off it; I got timber and sold it off the woodland; sold it to Presnell — thirty or forty of them off disputed land ; all fit for timber; I used and treated disputed land as I did my own ; Brittain deed and Ferree deed both cover the land in dispute; plaintiff lived in two hundred yards of land while I was using it.”</p> <p>On cross-examination, he said, among other things: “I don’t think Dale was cultivating any of the lappage.”</p> <p>Jamison Queen: “ I moved there in 1847, and built a house; I made a garden next year where the garden is now; about two years after I went there Dale had to be confined, chained; was not at himself when I went there; he went about; then I built a storehouse on the lappage; I lived there four or five or six years; I did not know where the line of the Morgan grant of the Deal line was; built house and made garden in ignorance of its location; Dale cultivated land on the lappage while I lived there ; he had a part of the field under fence on lappage for years; he cultivated this after I left there; I don’t know how long ; it was cleared after I went there; Dale had been deranged before I 'went there, and when I went there he seemed scrambled, addled, and sometimes had pretty good sense.”</p> <p>The defendants then offered their grant of 1804, and evi-dencetending to support their possession thereunder.</p> <p>When the evidence was closed, and the Court asked the counsel of plaintiff how they could get along when all the evidence showed that John Deal had been insane since 1847 or 1849, and that there had been.a possession of his, or under him, since on the lappage, and that the mother of defendants, under whom they claim, had been a married woman continuously since Deal’s death, Deal’s title being the oldest and covering the land, plaintiff’s counsel called the attention of the.Court to the case of Headen v. Womaclc, and insisted that the insanity or coverture did not apply to this case, to affect plaintiff’s title by possession in lappage. His Honor was of a contrary opinion and in deference thereto, and to the further intimation of his Honor that he should instruct the jury that no statute ran against defendants after Dale became insane, plaintiff suffered a nonsuit and appealed.</p> <p>The other testimony necessary to the presentation of this case may be gathered from the opinion.</p>

This was a MOTION to make parties heard by Brown, J., at the May Term of Halifax Superior Court. The Court allowed the motion, and the defendants appealed. The facts are sufficiently stated in the opinion.

<p>Judgment — Amendment of the Éecord — Res Judicata — Motion-to Correct a Judgment — Appeal.</p> <p>1. The Superior Court has power to correct and amend its judgments so as to make them express fully and plainly the rights of the parties, as ascertained in the trial of the cause, and appeal lies to the Supreme Court from a refusal to make such correction,</p> <p>2. When, upon a motion to correct a judgment-which had been carried by appeal to the Supreme Court, it appeared that such judgment was not according to the admitted rights of the parties, and the Court below refused the motion, on the ground that such judgment was res judicata: it was Held, that there was error. -</p>

This was a MOTION to retax the costs, heard at Polk Superior Court by Hoke, J. The Court ruled that if the witnesses were not sworn, and examined or tendered, even though attending under subpoena, and though they would have given material evidence, their fees could not be taxed against the losing party. Plaintiff excepted, and appealed.

<p>Negligence — Damages—Evidence—Charge—Prayer for Instructions — Contributory Negligence — Practice.</p> <p>1. In an action against a city for damages for injury, resulting from falling on a “slippery place,” upon an issue as to whether such place was a part of the defendant’s street, among other testimony admitted, tending to show it was used as a street', the Court allowed a witness, the Mayor of the city, to testify that, “To obstruct it was a violation of law, and parties who did it were tried before me.” Held, that this testimony, though incompetent, did not entitle defendant to a new trial.</p> <p>2. The admission of incompetent testimony, unless it might have misled the jury or worked injury, is not a ground for setting aside a- - verdict. *</p> <p>3. In response to a prayer that if plaintiff knew slime was on the plank, and did not use extra cave, it was “ contributory negligence,” the Court charged, after explaining what negligence is, “If the plaintiff knew the place was slippery, it was his duty to use more care than if he were wholly ignorant of its condition:” Held, sufficiently responsive.</p> <p>4. It was not necessary in this case for the Court to instruct the jury that the plaintiff could not recover upon contributory negligence found; it was its duty, upon issues found, to determine if the plaintiff could recover.</p> <p>5. It is not essential to give instruction in the language of the prayers.</p> <p>6. Though there was no testimony but the plaintiff’s, and that was to the effect that “he noticed the place was slippery, but was not expecting any thing to throw him down, and kept no more lookout than usual; ” yet the defendant cannot complain that it was the duty of the Court to find the facts — or instruct the jury more distinctly what they constituted — as the Court gave in substance the charge he asked, and especially as the charge was fair as it stood.</p>

This was a civil ACTION, tried by Brown, T, at the May Term, 1892, of Halifax Superior Court. The suit was for damages for flooding land. There was a verdict and judgment for plaintiff. Defendant appealed. The material facts may be gathered from the opinion of the Court.

This was a civil action, heard upon demurrer by Brovm, J, at the Spring Term of Northampton Superior Court.

AmjejrCKMent proceeding against defendant, the Sheriff of Wake County, for failure to return an execution in favor of plaintiff, tried before Whitaker, /., at March Term, 1892, of OraNGE Superior Court. The facts found are as follows: On August 19, 1891, M. W. Page, Sheriff of Wake County, received an execution from the Superior Court of Orange Count}'- in favor of the plaintiff against defendant, returnable to the next term of said Court, which began November 2,1891.

This was a civil action, tried at the Fall Term, 1892, of Camden Superior Court, before Píohe, J. It was brought to recover the value of advancements made to defendant for stumpage of timber and other expenses, and for delivering and shipping the same. In his answer to the complaint and attachment, one of the defendants, Brite, alleged that the timber attached for the debt was the property of the other defendant, Davis. The jury found the logs were not the property of Davis.

<p>This was a civil action, tried at the August Term, 1892, of PersoN Superior Court, before Connor, J.</p> <p>It was heard by appeal from a Justice of the Peace. The facts are sufficiently stated in 'the opinion of the Court.</p>

This was a civil actioN, tried at fhe Fall Term, 1892, of Bukke Superior Court-, before Armjield, J. It was iu evidence for the plaintiff that on the death of C. Shuffler in 1877, the defendant administered on his estate, took possession of his land known as the Beck place, held the same from 1878 to 1889, and received the rents and profits which were reasonably worth fifty dollars per annum; that the defendant’s entry, possession and taking the rents and profits were not by…

This is a MOTION made by the defendant W. Ii. Black for a new trial in the above-entitled case, because of newly discovered evidence, and was heard before Graves, J., at August Term, 1892, of MeckleNburg Superior Court, upon affidavits filed by the defendant. The case was tried at August Term, 1891, of said Court, and from the verdict and judgment against the defendant he appealed to the Supreme Court.

This was a civil ACTION for the recovery of land, tried by Bynum, J., at the Spring Term, 1892, of the Superior Court of Rutherford County. On the trial the plaintiff put in evidence a deed from the Sheriff of Rutherford County, purporting to convey the title and interest of the husband defendant, T. J. Withrow, in the land. This deed was dated on the 3d day of December, 1888, and registered on the 11th day of the same month.

<p>Liability on Administrator’s Bond — Statute of Limitations— Demand — Judgment.</p> <p>1. G. was appointed administrator of D. in June and died in August, 1883. In September, 1889, judgment was rendered upon an action begun in 1884 against G.’s executors establishing G.’s liability, as-administrator, for misuse of D.’s estate : Held, an action begun in October, 1889, against G.’s sureties was barred by the statute of limitations.</p> <p>2. The plaintiff might have begun his action immediately after his demand upon G.’s executors and their refusal in 1884, and the statute runs from that date.</p> <p>3. It is no breach of an administrator’s bond to refuse to pay a claim until the same is established by judgment.</p>

This was a civil ACTION, commenced before a Justice of the Peace, for the recovery of $125 due plaintiffs by defendants upon a verbal contract for the sale of a crop of ungalhered tobacco growing in a field, tried before Mclver, J., at the May Term, 1892, of Iredell Superior Court upon appeal by the defendants from the Justice’s Court.

This was a civil ACTION, tried at the March Term, 1892, of WilKbs Superior Court, before Armjield, J. This action was brought to recover the value of work and labor done and materials furnished in building a bridge for a county for which a lien had been filed in the Clerk’s office. A jury trial was waived, and the case was submitted to the Court for finding the facts and declaring the law. Verdict and judgment for defendant, and the plaintiff appealed.

<p>This was a civil ACTION, heard at Lenoib, County Superior Court at May Term, 1892, before Winston, J.</p> <p>The action was brought asking for an account between plaintiffs and defendants, and asking that the plaintiffs be allowed to redeem the lands specified in the complaint in the action upon the payment to the defendant S. H. Loftin of the money actually received from him. by the plaintiffs.</p> <p>The said tract of land, as stated by the plaintiffs in their complaint, was mortgaged by the plaintiffs M. A. C. O. Johnson and S. A. Cox, on November 30, 1888, to the defendant S. H. Loftin, to secure the sum of $1,700, which the plaintiff M. A. C. 0. Johnson borrowed from the defendant S. H. Lof-tin on the said day and date of said mortgage.</p> <p>It does not appear in the complaint of the plaintiffs, nor in any of the pleadings, that M. A. C. 0. Johnson is under coverture, but the plaintiffs allege in the complaint that the said mortgage was executed by the plaintiffs M. A. C. 0. Johnson and S. A. Cox, together with G. M. Johnson.</p> <p>It does not appear that A. J. Loftin, Esq., the commissioner to make sale of said lands, is either plaintiff or defendant in the action, but it does appear that he is one of the attorneys for the defendants, and it also appears in the judgments in the action that be was, without objection and by consent of other counsel than the present attorney, appointed commissioner to sell said lands.</p> <p>It was admitted in open Court, at May Term, 1892, by the attorney for plaintiffs, that there was no fraud in the sale of said lands by the said commissioner, and that nothing wrong was imputed against said commissioner in conducting said sale, except such as grew out of attorney for the defendant.</p> <p>The defendants filed no answer to the complaint, and at August Term, 1891, a consent judgment between W. C. Mun-roe, Esq., attorney for plaintiffs, and Loftin and Rountree, attorneys for defendants, the case was referred to J. Q,. Jackson, Esq., only for the purpose of stating an account between the plaintiffs and defendants.</p> <p>It was further ordered and adjudged in said judgment that if the plaintiffs failed to pay the amount of money found by J. Q. Jackson, Esq., to have been received by the plaintiffs on said mortgage from the defendant S. H. Loftin, together with interest thereon, or so much thereof as remains unpaid after crediting the rents and profits found to have been received by the defendants, who were then and had been in possession of said lands, on or before the first day of November, 1891, then and in that case the said lands should be sold by a commissioner appointed by this Court, and A. J. Loftin, Esq., was appointed commissioner to effectuate the sale under the said judgment of said August. Term, 1891.</p> <p>At November Term, 1891, of said Court the referee, J. Q. Jackson, Esq., reported to said Court, after stating the-account, that the plaintiffs were due the defendant S. H. Loftin, on November 16, 1891, the sum of $1,587.94.</p> <p>At said November Term, 1891, the action came on to be heard solely upon the report of the referee, no exceptions having been filed to said report; nor did the plaintiffs offer, or propose to file, any exceptions, and thereupon, upon motion of defendant’s attorneys, the said report was in all respects confirmed, and judgment rendered that the defendant S. H. Loftin recover of the plaintiffs the sum of $1,614.99, with interest on $1,554.30 principal money, at eight per cent, interest, from November 16, 1891, till paid, and for costs.</p> <p>From the records of the Court at November Term, 1891, the Court finds that the following entry was made : “Report confirmed.” And the Court finds as a fact the said appeal was marked out under the order of the Judge.</p> <p>By virtue of said judgment, the plaintiffs were allowed sixty days to redeem said lands by paying off said judgment, and in default the lands were ordered to be sold by said commissioner.</p> <p>The plaintiffs made default in the payment of said judgment, and the said'commissioner sold said lands in conformity to said judgment, notifying plaintiffs’ attorney of the time and place of sale.</p> <p>At May Term, 1892, the Court continued the case from day to day to enable the plaintiffs to file affidavits as to the value of said lands and the inadequacy of the price bid, but none were filed.</p> <p>At May Term, 1892, of said Court the said commissioner reported said sale to said Court, at which sale the said lands were bid off by the defendant S. IT. Loftin for the sum of $1,250, he being the highest bidder, and being allowed by the judgment of the Court to become the purchaser, and the commissioner recommended the confirmation of the report, as the lands sold for a fair and reasonable price. Affidavits were also filed to the same effect.</p> <p>At said May Term, 1892, the action coming on to be heard upon the report and affidavits, the plaintiffs, through their attorney Stephen W. Isler, for the first time filed the following exceptions to the report of the referee:</p> <p>“1. Because the referee does not find the fact whether M. A. C. 0. Johnson is married and is still under coverture, and that she owned individually the tract of land specified in the pleadings. And the plaintiff M. A. C. 0. Johnson moves that the case be remanded to the referee to find the facts herein specified.</p> <p>“2. The plaintiff objects to the confirmation of the report because A. J. Ixfftin, one of the attorneys for the defendants, but practically a plaintiff, was appointed a commissioner to sell the said lands, and the defendant became both the vendor and the purchaser.</p> <p>“3. The plaintiffs object to the confirmation of the sale because the said tract of land was not divided and sold in parcels, but the whole tract was sold in one body.</p> <p>“4. Because the said tract of land did not bring a fair price.”</p> <p>The defendants, in open Court, at said May Term, 1892, offered to allow the plaintiffs then to redeem, but the plaintiffs admitted their inability to do so.</p> <p>The Court overruled the exceptions of the plaintiffs and confirmed the report of the commissioner, and rendered judgment against the plaintiffs for the sum of $425.76, with interest and costs — the difference between the sum for which the land sold and the judgment rendered at November Term, 1891.</p> <p>. From this judgment the plaintiffs appeal, and assign as errors the rendition of a personal judgment against Mrs. M. A. C. 0. Johnson, and the overruling the exceptions above stated, and the confirmation of the report.</p>

This was a civil ACTION for the recovery of personal property, tried by Winston, J., at the April Term, 1892, of Greene Superior Court. At November Term, 1891, an order was made referring the ease to a referee to hear and determine the issues involved, and a report was accordingly submitted to the next term of the Court (in January, 1892); and there being no exceptions to the report, it was confirmed, and judgment rendered in favor of the defendant.

This was a civil actior, heard on exceptions to the report of a referee, by Winston, J., at Spring Term, 1892, of the Superior Court of Gheene County. The action was brought for foreclosure of mortgage and for possession of the land conveyed therein. By consent, the cause was referred to N. J. Rouse, Esq., under The Code, to try the issues and report his findings of fact and conclusions of law. The report of the referee was as follows : FINDINGS OP FACT. 1.

This was a motion for an injunction, heard before Whit-' aker, J., at Clinton, in SamfsoN County, October 11, 1892.- On the hearing the plaintiff introduced the contract mentioned in complaint (which was used as an affidavit), marked “ A,” whereupon the defendant proposed to show by affidavits that the money which the complaint, or affidavit, alleged to have been advanced under and in pursuance of said contract, was advanced as a loan simply, and that the stock which the…

<p>Stipulation for Collection of Fee in Promissory Note — Public Policy.</p> <p>A stipulation in a promissory note “that in case this note is collected by legal process the usual collection fee shall be due and payable,” is not consistent with public policy, and is therefore not enforceable in our Courts.</p>

<p>Fraud, — \Money Ck inverted into Laud, Land Subject to Payment — Marriage—Dower—Trusts and Trustees.</p> <p>1. Where a person is deprived of his money by fraud he may recover it in specie if it can be found, and if it has been converted into'land he may subject that to the payment of the debt.</p> <p>2. When a woman fraudulently obtained from a man a sum of money upon her promise to marry him, and allow the land purchased with the money to be in lieu of her dower : Held, the land so purchased could be subjected to the payment thereof.</p> <p>3. Discussions by Shepherd, J., of the law relating to converting persons into trustees for the benefit of others.</p>

This was a special proceeding, begun before the Clerk of the Superior Court of Pender County, on the 17th January, 1881, by the plaintiff, as administratrix of Hinton Chappell, deceased, to sell certain lands in Pender County to raise assets to pay the debts of the estate, and finally heard before Winston, J., at the March Term, 1892, of Pender Superior Court.

This was an ACTION to recover possession of land, heard before Whitaker, J., at the February Term, 1892, of Chatham Superior Court, in which the defendants set up a parol agreement to convey, which is denied by the plaintiffs, who plead the statute of frauds.

<p>Bond — Statute of Limitations — Married Woman — Trustee— Time of Payment.</p> <p>1. When no time is specified for the payment of a bond it is due at its execution, and the statute of limitations begins to run at once.</p> <p>2. The fact that it was made payable to the husband when it ought to have been to the wife, does not arrest the running of the statute; he was her trustee and not under disability.</p> <p>3. His assignment of the note to her could not arrest the running of the statute; it had begun to run before assignment.</p>

This was a civil achoN, heard at the March Term, 1892, The Court overruled the exceptions, except such as appear in the judgment, and the plaintiffs appealed. The referee made the following findings of fact: 1.

<p>Quo Warranto — Offices—Cities—Towns—Code—Board of Aldermen.</p> <p>1. In a quo warranto brought by a citizen, qualified voter and taxpayer of a municipal corporation, upon leave of the Attorney General, to-try the title of an officer,' the Chief of Police of said corporation, it is not necessary to allege that the relator is entitled to. the-office or has any interest therein.</p> <p>2. The Board of Aldermen of such corporation are not necessary parties defendants to such action.</p> <p>3. Under the general statute, The Code, § 3796, only qualified voters of towns and cities are eligible to offices therein.</p> <p>4. The office of Chief of Police is such an office that a quo warranto may be brought to try the title to it.</p>

<p>Receiver — Parties — Insurance — Evidence — Damages — Judgment— Conflict of Laws — Lien.</p> <p>1. A receiver, duly appointed and having power to collect the assets of the estate committed to him, can maintain an action upon a policy of insurance issued to the person whom he represents in his own name.</p> <p>2. A consent order that B, should collect assets and sell property until a future order of the Court, and that a motion for the appointment of a receiver should be continued without prejudice, did not have the effect to constitute B. a receiver or trustee of an express trust, and he could not maintain an action to recover assets in his own name</p> <p>3. An honest mistake in the proof of loss under a contract of insurance will not defeat the right of the insured to recover what is justly due him.</p> <p>4. The true measui’e of damages under a policy of insurance is the cash market value of the destroyed property at the place of destruction,</p> <p>o. Where it appeared that suits had'been commenced, and the property of the insured in the contract of insurance had been duly attached in the Court of another State prior to the commencement of an action in this State : It is Held, that the foreign attaching creditors obtained the first lien, and that any judgment rendered in this State should take cognizance of that fact.</p>

This was a civil action, tried before Brown, J, at the February Terra, 1888,'of the Superior Court of Bertie County. This action was brought by the plaintiffs against the •defendant executor for an account and settlement of his .administration, and for the purpose of recovering to the feme plaintiff such sum, as upon such accounting might be found to be due her as the residuary legatee of the said testator.

This is a motion by defendant to rehear this cause, argued' before the Court in banc, upon the ground that Rule 58, which requires the endorsement of a member of the Court before a rehearing is granted, is contrary to law.

Civil action, tried at April Term, 1892, of New Hanover Superior Court, before Winston, J. Duval French was insured in the defendant company for the benefit of his sister, the plaintiff. He had permitted his policy to lapse for non-payment of dues, but subsequently he had paid them and had been reinstated by the defendant company,^and at the time of his death he owed the defendant nothing.

This was a civil action to surcharge and falsify an account, begun before’the Clerk and heard before Boykin, J, upon the pleadings and the facts found by the Court, at the May Term, 1892, of Cumberland Superior Court. • The Court found that John Averitt, administrator of Wiley Nunnery, filed his final account, supported by proper vouchers, in the office of the Clerk of the Court in 183.5 or 1886. John C. Callahan was Clerk. The vouchers were left with the Clerk.

This was a controversy without action submitted upon a case agreed under section 567 of The Code, heard before Mdver, J., at Chambers at the February Term, 1892, of Rowan Superior Court. The Court gave judgment for the defendant, and the plaintiff appealed. The following are the material facts: 1.

<p>Civil ACTION for possession of land, tried at May Term, 1892, of the Superior Court of Iredell County, before Mclver, J.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>This was an issue of devisavit vel NON, tried at September Term, 1892, of the Superior Court of Durham County, before Whitaker, J.</p> <p>The paper-writing offered for probate as the will of Ada W. Thomas purported to be signed by J. W. Thomas and Sallie F. Gooch as subscribing witnesses. The husband of the testatrix was sole devisee and legatee.</p> <p>C. B. Green, the present Clerk, testified for the propounders that he had searched in the Clerk’s office for the original will and the proofs attached to it, which were entered in the will book in the form set forth in the opinion. The propounders then offered in evidence the portion of the record of wills containing the will and the probate. The caveators objected to the reception of the evidence; the objection was sustainedr and propounders excepted.</p> <p>Propounders then offered in evidence the bond for costs--in this caveat, filed January 3, 1891, ánd signed by Mary L. Thomas and W. K. Thomas, for the purpose of showing the-admissions therein that the will copied on page 100 of said record was the last will of said Ada W. Thomas, and also that said paper was duly probated and recorded as the will of said: Ada W. Thomas.</p> <p>Caveators objected to this evidence; his Honor sustained' theobjection and excluded the testimony, and the propounders excepted, and alleged such ruling and the exclusion of the evidence as error.</p> <p>Propounders then offered in evidence the caveat filed January 3,1891, signed by “John W. Graham and Boone & Parker, attorneys for Mary L Thomas and Charles Thomas,” for the purpose of showing the admissions therein, the same as those contained in the bond for costs.</p> <p>To this evidence caveators objected; their objection was sustained, and propounders excepted, and alleged such ruling-excluding such evidence as error.</p> <p>D. C. Mangum testified that he was Clerk of this Court in 1887, and about February 4, 1887, made the record on pages 100 and 101 of Book A, Record of Wills, now shown him.</p> <p>Propounders asked the witness this question : “ Was there-offered to you, as Clerk, for probate, about February 4,1887,. a paper writing purporting to be the last wdll and testament-of Ada W. Thomas?”</p> <p>Caveators objected to the question, and .his Honor sustained the objection, aud did not allow the witness to answer the question, to which propounded excepted. Counsel for the pro-pounders stated that the question was asked in order to follow it with other questions by which lie expected answers-showing that witness made the record in B >ok A after probate of said will by S. F. Gooch, the then subscribing witness,, and S. J. Gooch as to the handwriting of J. W. Thomas, the-other subscribing witness, who was dead.</p> <p>The handwriting of the subscribing witnesses to said will was proven.</p> <p>On cross-examination of this witness he was asked by-caveator’s oounsel: “Where did you last see the paper purporting to be Mrs. Thomas’ will?” and he answered that it was in possession of Dr. R. W. Thomas, about a month after he copied it, as he had before stated, and that Dr. Thomas-had gotten it from him.</p> <p>On re-direct examination, counsel for propounders asked the witness, referring to the question and answer on cross-examination just stated, “ How did you come to be in possession of' that paper?”</p> <p>Caveators objected to the question. Oounsel for propounde-rs insisted that the question asked and the answer elicited on cross-examination entitled propounders t.o an answer to this-question, and that his purpose in asking it was to show that said paper had been probated and filed by him as Clerk as the last will of Ada W. Thomas. The objection was sustained, the witness not allowed to answer, and the propounders excepted, assigning such refusal to allow the witness to answer the question as error.</p> <p>Propounders did not produce any witnesses acquainted with the handwriting of Ada W. Thomas, who bad seen her signature to said alleged will.</p> <p>Propounders introduced in evidence a certified copy of the record from Orange County Superior Court, instituted December, 1887, and concluded April, 1888, in which Octavia Thomas and D. C. Mangum, receiver of Octavia Thomas, a lunatic, were plaintiffs, and the caveators and M. A. Angier, their guardian ad litem, defendants, which record showed a. :special proceeding, due and regular in form and regularly conducted, in which dower in the land devised in said alleged will was allotted to said Octavia Thomas, second wife and widow of said R. W. Thomas, devisee of said land in said .alleged will, in the petition to which proceeding it was alleged that said R W. Thomas died seized and possessed of said land. No point was made as to the regularity of said special proceeding in all respects. All the material evidence in the pro■ceeding is herein set out.</p> <p>Propounders asked his Honor to charge the jury that the issue must be answered Yes, because the caveators are ■estopped by the record ofbpecial proceedings to obtain dower from the Superior Court of Orange County to deny the validity of the alleged will, as against the propounders of said will, the participants in this proceeding.</p> <p>This prayer was refused and propounders excepted, and assigned such refusal as error</p> <p>Propounders asked his Plonor to charge the jury, that said record of special proceedings constitutes an estoppel on the caveators as against Mrs Octavia Thomas, widow of devisee in said will.</p> <p>His Honor refused this prayer, and propounders excepted, assigning such refusal as error.</p> <p>His Honor instructed the jury to answer the issue No, and propounders excepted, assigning such instruction as error.</p> <p>Verdict and judgment for caveators. Propounders appealed.</p>

This was an ACTION to try title to land, tried before Bynum,, J., and a jury, at the Spring Term, 1892, of the Superior Court of CLEVELAND County. The pleadings show 'the contention of the parties.

This was AN action to recover for work and labor done by plaintiff for intestate of defendant, commenced before a Justice of the Peace of said county, and tried, on appeal, before Hoke, J., at Spring Term, 1892, of Macon Superior Court. There was evidence tending to show that Abel Buckner and his wife, being enfeebled by age, requested plaintiff to come on his place and take care of himself and wife in their last years; that plaintiff did so.

<p>Practice — Demurrer—Appeal—Interlocutory Motions.</p> <p>1. A motion to strike out an answer and that the Court declare a party unnecessary, and a demurrer because the answer does not state facts sufficient to constitute a defence to the action are interlocutory, and properly not appealable till final judgment.</p> <p>2. A demurrer ore terms in the Supreme Court for the same cause does not stand upon any better ground.</p>

Civil action, tried at Spring Term, 1892, of Buncombe Superior Court, before Ploke, J. The plaintiff complained upon and offered in evidence a paper-writing, of which the following is a copy: October 13,1890. First payment on second house__$132 25 Payment next week.

This was a civil ACTION, heard upon complaint and demurrer before Bynum, J., at the Fall Term, 1892, of Haywood Superior Court. The plaintiffs claimed the unallotted dower of a widow under a deed of conveyance from her. The defendant resisted, among other reasons, because the plaintiffs could not bring their action in their own name; the right of dower being only a thing in action the widow was a necessary party. The Court overruled their demurrer, and they appealed.

. This was a civil action, tried at the August Term, 1892, of Buncombe Superior Court, before Bynum, J., for the value of work and labor done for the defendant corporation. The defendant denied the debt, and resisted payment upon the further ground that the contract was not in writing under seal of the corporation, nor signed by any authorized officer thereof, and therefore void under section 683 of The Code.

Civil action, heard at August Term, 1892, of Buncombe Superior Court before Bynum, J. The plaintiffs filed their complaint on August 17, 1892, verified as appears in the record : 1. That the defendant, The Asheville Light and Power Company, is a corporation duly chartered and existing under , .and by virtue of the laws of the State of North Carolina. 2.

This was a civil action, tried at May Term, 1892, of the Superior Court of Halifax County, before Brown, J. The Judge settled and submitted the following issues: 1. Did the defendant wrongfully destroy the plaintiff's bridge ? 2. What damage is plaintiff entitled to recover? 3. Is the plaintiff the owner and entitled to recover possession of the canal and land described in section ten of complaint? 4. Does the defendant wrongfully withhold possession of said land ? 5.

<p>Motion by defendant in Supreme Court for certiorari.</p>

<p>Civil action, tried at August Term, 1891, of Buncombe Superior Court, Merrimon, J., presiding.</p> <p>The plaintiff is a commission merchant residing and doing business in the city of Glasgow, Scotland, and sued the defendants, lumber merchants, residing and doing business in the county of Buncombe, for balances alleged to be due upon advancements made upon consignments of lumber shipped at various dates between January and May, 1889.</p> <p>The Court charged the jury that, as the defendants alleged in their answer that the plaintiff, by his negligence, carelessness, mismanagement and inattention to business as a commission merchant, suffered the defendants’ logs to be sold at a lower price than they should have brought, the burden was upon them to satisfy the jury that the plaintiff did, by his negligence or carelessness, or by his mismanagement or inattention to business as a commission merchant, suffer their logs to be sold for a lower price than thej^ should have brought, and that they must satisfy the jury, by a preponderance of evidence. The defendant excepted to this part of the charge, and insisted, that as it was peculiarly within the plaintiff’s knowledge whether the logs were or were not sold at a lower price than they should have brought, the burden was upon them, and upon the further ground that plaintiff, being a commission merchant, it was for him to show that he used diligence in the sale of the logs. There was no other exception. There was evidence offered by both parties upon the second issue. There was no exception to the charge of the Court upon the fifth issue. The defendant moved for a new trial upon the ground that the Court erred as above stated. The motion was denied, and defendant appealed.</p> <p>The other material facts are stated in the opinion of the Court.</p>

This proceeding was beard at April Term, 1892, of the Superior Court of Wake County, before Connor, J., upon an appeal from the Railroad Commission. The Court rendered the judgment, which appears in the record, and the plaintiff excepted to said judgment and appealed to the Supreme Court. The pleadings, facts found by Commissioners, judgment of Commissioners, judgment of Court and plaintiff’s exception constitute case on appeal. The plaintiff complains and alleges— 1.

This was AN action brought by plaintiff against the defendant for damages, as is alleged in the complaint, for personal injuries done him while in the employment of defendant as a brakeman, and heard before Boykin, J., at February Term, 1891, of Guilford Superior Court.

Motion heard at Spring Term, 1892, of Mitchell Superior Court, Bynum, J., presiding. The plaintiff moved for judgment against the defendant; motion refused, the Court being of opinion that the judgment of the Supreme Court directed a new trial. To this ruling of the Court the plaintiff excepted. The plaintiff moved to try. Defendant said he was not ready. The plaintiff insisted that a trial only can be had on the facts already agreed.

ActioN to recover back the sum of $500, which the plaintiff alleged he had paid over to one Humphreys for the benefit of defendant Beam, tried at Spring Term, 1892, of Gas-ton Superior Court, Bynum, J., presiding. The plaintiff was at the time acting as agent of the express company at Cherryville, North Carolina, and claimed that he delivered a package of said amount to Beam for Hum-phreys ; and this was denied by defendant.

This was a special PROCEEDING for partition of land, heard on appeal from Clerk before Armfield, J., at Fall Term, 1892, of Burke Superior Court. This action was brought by plaintiffs as heirs -at law and devisees of Peter Epley for a partition of the lands known as the Catharine Epley tract.

<p>Amendment — Pleadings—Retraxit—Appeal—The Code, § 27S.</p> <p>1. In an action by two tenants in common to have the value of lands-required in construction of defendant’s right-of-way assessed, and after the action had been pending for several years one of the-plaintiffs entered a retraxit, and the Court allowed the other to-amend his description of land so as to embrace his part still the-subject of suit: Held, no error.</p> <p>2. An order of amendment is not appealable.</p>

Civil action, heard at May Term, 1892, of the Superior Court of Cumberland County, before Boykin, J. The plaintiff filed a verified complaint, in which she alleged' that on or about the 19th of April, 1888, she caused to be deposited in the defendant bank “a large sum of money,, about five thousand five hundred dollars, the exact amount of which she does not now remember, but is informed and. believes it was five thousand four hundred and seventy-five-dollars and…

<p>Banks — Discount—Agency—Evidence]—Presumption—Assign- „ ment of Notes.</p> <p>J. executed his promissory note toM., who, for value and before maturity, endorsed it, for his own benefit, to a bank of which he was president, and, together with the cashier, constituted the discount committee, and as such committee, M. participated in discounting the note: Held, that the bank took the note subject to all the equities by which M. was bound, the presumption being that his knowledge was the knowledge of the bank. (Bank v. Burgwyn, 110 N. C., 267, distinguished.)</p>

This was a civil ACTION, tried before Connor, J., at the December (special) Term, 1891, of the Superior Court of Pitt County. The parties waived trial by jury and consented for the Court to find the facts and declare the law arising thereupon. The Court found the following facts : 1.

This was a civil ACTION, tried before Armfield, J., at July-Special Term of Superior Court of Forsyth County. Plaintiff complained that the defendant was indebted to him by contract in the sum of $600.20, and offered in evidence the written contract. Defendant objected to the introduction of the written contract upon the ground that it was without consideration. The Court admitted it in evidence, and the defendant excepted.

<p>Appeal — Interlocutory Orders.</p> <p>Appeal does not lie from a refusal to dismiss an action, nor from an order adjudging that defendants have been duly served with process, and are properly before the Court.</p>

<p>This was a civil action, heard at the Pall Term, 1892, of Burke Superior Court, before Armfield, J.</p>

This was a proceeding, commenced on the 6th day of October, 1890, before the Board of Commissioners of Burke County, to lay out and establish a public road in said county, and heard on appeal from said Board of Commissioners before Armfield, J., at Fall Term, 1892, on the petition and answer, and facts agreed to by the parties.

ActioN to recover land, tried at Spring Term, 1892, of Surry Superior Court, before Armfield, J. A jury trial was waived, and the Court found the following facts: On __ day of May, 1835, the plaintiff was the owner of the land in controversy, and was at the time a feme covert and a minor, being eighteen years of age.

Civil ACTION, tried before Bryan,at Spring Term, 1892,. of Vance Superior Court.

This was a civil action, tried before Boykin, /., at May Term, 1892, of CumbeblaND Superior Court. The action was commeuced in the name of E. F. Moore,, by summons dated June 27, 1887.

This was a civil action, tried at the December Term, 1890, of Buncombe Superior Court, before Philips, J. At the close of plaintiff’s evidence, the character of which may be gathered from the opinions and dissenting opinion, the Court intimated that, assuming the facts as testified to be true, the plaintiff could not recover, and that he would so instruct the jury. Whereupon, the plaintiff submitted to non-suit and appealed. Below will be found the complaint and answer— 1.

Civil action to recover possession of land, tried at November Term, 1891, of Buncombe Superior Court, before Merrimon, J. The controversy grew out of the question whether the plaintiff’s line should be run from a point designated as figure 1 on the plat to 2, and thence to 12 and to 11 (so as to •include the disputed territory included within the lines 2, 12, 11, 2), of whether it should be located from 1 to 2 and thence north to 11, and thence to 12, as contended by the…

This was a civil action, heard before Winston, J., at the Fall' Term,.1892, of Bladen Superior Court, upon complaint ,and answer. The object of this action,-brought by the County Board of .Education, was by mandamus to compel the Board of County -Commissioners of Bladen County to levy a tax beyond the constitutional limitation of Article V., section 1, in order to keep the public schools open for four months, as prescribed ■by Article IX., section 3 of the Constitution.

Civil action, tried before Winston, J., at Spring Term, 1892, of CraveN Superior Court. “The plaintiff contends that the Atlantic and North Carolina Railroad Company received from him a car load of lumber for transportation; that the lumber was destroyed by fire and was not delivered by the said railroad company through their negligence; that the railroad company is a common carrier, and is liable as insurer to the plaintiff in the sum of damage to $159.99.

Civil ACTION, tried at December Term, 1891, of Buncombe Superior Court, before Merrimon, J. The plaintiff brought her action to recover damages for an injury caused by the sudden and negligent moving of the defendant’s street car when she was in the a.ct of alighting from it. The material facts are stated in the opinion. The defendant appealed from the judgment rendered.

<p>This was a civil action tried at the January Term, 1892, of CUMBERLAND Superior Court, before Boykin, J.</p> <p>The facts are stated in the opinion.</p>

This was a civil action, tried at March Term, 1891, of Durham Superior Court, before Boykin, J. In June, 1886, the defendant Howland contracted in writing with the defendant town of Durham to construct a system of water-works for said town to supply water for public and domestic purposes.

<p> Appeal in Forma Pauperis. </p> <p>If the affidavit for an appeal in forma pauperis fails to allege that it is-taken in good faith, the appeal will be dismissed.</p>

<p>Evidence — Expert—Poison—Trial—Verdict, how impeached— Jury, polling.</p> <p>1. Upon the trial of an indictment for homicide, charged to have been produced by poison, it was in evidence that the deceased exhibited, before and after death, symptoms of arsenical poison ; that flour, bread and dough, from which she had eaten had been taken, on the day of her death, from her house and given to the coroner who, with another physician — both being medical experts — made an analysis and testified that they discovered the presence of arsenic. The coroner testified that he carried the substance given him to his private office; that it was' possible for some one to have entered his office and put in the poison, but barely probable : Held, not error to admit the evidence of existence of arsenic, especially as the Court instructed the jury that before they could consider that i fact they must be satisfied beyond a reasonable doubt that the flour and dough analyzed were the same of which deceased ate.</p> <p>■2. When a motion for a new trial is based upon affidavits, the Supreme Court will not look into them; the Court below must find the facts and spread them upon the record.</p> <p>3. It is not competent to impeach the verdict of a jury for misconduct by evidence proceeding from the members of the body.</p> <p>■4. Where several jurors made affidavit that they were induced to join in the verdict of guilty in the belief that the recommendation of mercy accompanying their verdict would prevent the death penalty, and the Court permitted the affidavit to be filed, but, in the exercise of its discretion, declined to grant a new trial: Held, not to be error.</p> <p>5. It is the privilege of one on trial for crime to have the jury polled when rendering the verdict; but it is not error to receive the verdict without polling unless the defendant requests it in apt time.</p>

IndxctmeNT for an assault with intent to commit rape, tried at Spring Term, 1892, of Craven Superior Court, before Winston, J. The statement of the case is as follows: * * * “ The jury rendered a verdict of guilty, and thereupon the Court proceeded to judgment, to-wit, that the defendant be confined in the State penitentiary for a term of fifteen years at hard labor.

<p>IndictMent for burning a barn, tried at April Term, 1892, of Franklin Superior Court, before Bryan, J.</p> <p>The following is the testimony set out in the case: T. J. King testified that-the burning of the barn occurred on the first Saturday night in November, 1891; that defendant is married and wanted him to force his wife to live with him, and the witness persuaded her to do so; she lived on the land of Mrs. M. I-I. King, whose barn was alleged to have been burned.</p> <p>Andrew Young stated that he knew the defendant, and that defendant and his wife separated about a month before the fire; that defendant had said that King was keeping his wife away from him and had to pay for it. Defendant excepted. King is the son of Mrs. King, the prosecutrix, who was in possession of the land, and was her agent and manager.</p> <p>Ella Dunstan testified that defendant said that'King was ■making him see trouble about his wife, but he was going to keep easy until his “ peace bond was up ” (defendant had previously given a bond before a Justice of the Peace), and ■then defendant was going to King and tell him to get his wife away from there, and if he didn’t, he would hurt them ; his wife put him under bond ; the witness stated to defendant that he must mean something like murdering, and he said he could do it. Defendant excepted — the State promising to connect this with the burning.</p> <p>J. R. Wheeler testified that he heard defendant make threats against King (of the character above mentioned)-but. •did not give King any notice of the threats, as the witness had not seen King or any of his family ; these threats were made about three weeks before the burning; defendant talked to witness about his wife’s living on King’s land, and said he was going to see King about it, and said he would damage King; that it would cost him $200 if King did not move his wife off the land ; this was. about eleven days before the burning; the witness did not tell the Kings about this before the fire. There was also evidence of threats against Mrs. King.</p> <p>Charles Jones testified that in April the defendant said he could do King a private injury and the law couldn’t hurt him; defendant was talking about his wife and complaining because King let her live on his land. Other witnesses testified substantially to the same effect.</p> <p>Upon redirect examination it was shown in evidence that the defendant was arrested Sunday evening.</p> <p>Calvin Stallings testified that he knew when the barn was burned, and that some one passed in the direction in which the defendant and others lived, about 4 o’clock A. m. on said Saturday night.</p> <p>W. B. Hunter testified that he saw the defendant on the day he was arrested, and that defendant said he was up until about midnight the night before about killing a beef. The State here rested its case.</p> <p>The defendant objected to the testimony of the witnesses as to the threats against T. J. .King, when the indictment charges the defendant with burning the barn of Mrs. Mary H. King, and excepted to its admission.</p> <p>Joseph Jones- testified that the defendant lived about a mileand a half from where his wife lived, and that there was a road from his house to his wife’s, which road crossed a creek; that an air-line run across the creek at a different point from where the road crossed it would be a shorter distance to Mrs. King’s house; on Friday evening, before the burning, the defendant asked if he could cross the creek (objected to by defendant); that it was a straight line to Mrs. King’s; but one could not cross without getting muddy, but could cross on a fence; there was a pond above and one below the straight line, and to have gone by either pond would have put him a mile out of the way; that on the creek between the ponds, there was a path to Mrs. King’s; that defendant went in the direction witness had described.</p> <p>The defendant asked his Honor (o instruct the jury that there was no evidence to go to the jury warranting them to convict defendant, and excepted to his Honor’s refusal so to charge. There was a verdict, of guilty, and the defendant appealed from the judgment pronounced.</p>

This was an indictment, which was contended by the State could be sustained against the defendants County Commissioners, either under section 711 or section 1090 of The Code or at common law, for charging for mileage contrary to law, and causing their accounts to be audited and paid, tried at September Term, 1892, of the Superior Court of Wake County before Bryan, J. The jury returned a special verdict as follows: “ It is admitted that the defendants ordered the Clerk of the…

<p>This was an indictment for murder, tried at the September Term, 1892, of WayNE Superior Court, before Bryan, J.</p> <p>The defendant pleaded not guilty, and the Court ordered a special venire of two hundred to be drawn from the jury box. This order was made on motion of the Solicitor for a venire of one hundred and fifty.</p> <p>Box No. 1 was exhausted when one hundred and thirty-five were drawn out, and on motion of the Solicitor the order was amended so as to call for only that number. A jury was obtained before the prisoner exhausted his special.challenges. The Court found, upon sufficient evidence, that the deceased’s dying declarations were made under apprehension of impending dissolution and were admissible. Defendant excepted and appealed.</p>

<p>Motion to Quash Indictment — Challenge—Taxes—Code—Commissioners.</p> <p>1. A motion to quash an indictment made before defendant entered his plea, on the ground that three of the grand jurors had failed to pay their taxes for the preceding year, was properly sustained.</p> <p>2. It is not a sufficient ground to quash an indictment that the Commissioners failed to comply with section 1722 of The Code as amended by Acts of 1887, in that they selected for jurors such as had not paid their taxes. The statute is directory, and a challenge to grand jurors on this account, unless some actual corruption is shown, will not be sustained.</p>

<p>Indictment for Felling Timber— Verdict — New ■ Trial— Code.</p> <p>When the jury found that defendant had felled trees in White Oak river and allowed them to remain more than five days: Held, that the offence came within the inhibition of the statute, Acts 1887, chapter 73, § 1, but their additional finding that the act was not “ wil-fully done, but in the interest of their mill,” was inconsistent, and should have been set aside and new trial granted.</p>

<p>This was an indictment for larceny, tried at March Term, 1892, of New Hanover Criminal Court, before Meares, J.</p> <p>The facts are stated in the opinion.</p>

Indictment for obtaining money by false pretenses from J. T. Ritter, tried at the May Term, 1892, of the Superior •Court of Cumberland County, before Boykin, J. John T. Ritter, the prosecutor, testified that he executed a note to defendant in January, 1888, for $500, and afterwards learned that defendant had put it in bank. Witness got a notice from the cashier of the bank that this note, endorsed by E. F. Moore, was due.

This was an indictment for selling liquor without license, tried before’ Boylcin, J., at the March Term, 1892, of Moore Superior Court. The facts are set out in the opinion.

<p>IkdictmeNT for betting money on a game of chance, tried at June Term, 1892, of Richmond Superior Court, before Boykin, J.</p> <p>The jurors for the State upon their oaths present that John Taylor and Samuel Monroe, etc., with force and arms, etc., did unlawfully and wilfully play at a game of chance, to-wit, cards, at which money was bet, against the form of the statute, etc. •</p> <p>The defendants were found guilty, and appealed from the judgment pronounced against them.</p>

This was an indictment for murder, tried at the May Term, 1892, of Robeson Superior Court, before Boykin, J. The defendant offered to prove by a witness that he had made diligent inquiry of persons at the place of shooting and could find no one who had loaned him a pistol. Excluded. Defendant excepted. The State was allowed, after exception, to corroborate two witnesses by showing the statements they made shortly after the homicide, and the other facts appear in the opinion.

This was an indictment for selling spirituous liquors within two miles of a public school-house in Davidson County, tried before Mclver, J., at the March Term, 1892, of Davidson Superior Court. The facts are sufficiently stated in the opinion.

This was an indictment for violating a town ordinance, tried at the Spring Term, 1892, of Stanly Superior Court, before Mclver, J. The facts are stated in the opinion.

INDICTMENT for murder, tried at Spring Term, 1891, of the Superior Court of Alleghany County, before Bynum, J. The prisoner was found guilty of murder and there was judgment accordingly, from which he appealed. Pending the appeal the defendant made his escape and is now at large. The Attorney General moves to dismiss the appeal.

Indictment for burglary in the first degree, tried at August Term, 1892, of Surry Superior Court, before Mclver, J. The defendant w-as found guilty, and appealed from the judgment pronounced.

<p>Indictment under The Code, § 1063, for removing, altering and defacing a landmark, tried at Fall Term, 1892, of Mitchell Superior Court, before Armfield, J.</p> <p>The indictment is substantially as follows;</p> <p>The jurors, etc., present that Nick Bryant, etc., with force and arms etc., wilfully and unlawfully did alter, deface and remove a certain landmark, to-wit, a corner tree, the property of, etc., against the form of the statute, etc.</p> <p>From the judgment of the Court quashing the indictment, the Solicitor for the State appealed.</p>

This was an INDICTMENT for murder, tried at the Spring Term, 1892, of Mitchell Superior Court, before Graves, J. The facts may be gathered from the opinion.

<p>Taxing Costs for Malicious Prosecution — Court — Practice— Prosecutor.</p> <p>1. While the trial Judge is the proper Court to find the facts and adjudge the costs in cases of frivolous prosecution, yet, upon motion and notice to show cause, this may be done at a subsequent term, and by another Judge; and this course is proper where on account of absence of the prosecutor or other sufficient cause, he cannot be brought before Court at the trial term.</p> <p>2. The practice in such cases pointed out by Clark, J.</p>

This was an indictment for assault and battery, tried at the February Term, 1892, of Union Superior Court, before Bynum, J. The facts are stated in the opinion.

<p>This was an indictmeNT for carrying a concealed weapon, tried at the Special (May) Term, 1892, of LINCOLN Superior Court, before Bynum, J.</p>

INDictment for murder, tried before Bynum, X, and a jury, at Spring Term, 1892, of Cleveland Superior Court. The State proved that on the night of the sixth day of January, 1891, Jenks Macobson, colored, was shot in the right thigh with a load from a shot-gun in the yard of Laura Bridges, also colored, in the town of Shelby.

This was an indictment for homicide, tried at the Fall Term, 1892, of Union Superior Court, before Graves, J. There was a verdict of guilty, and defendant appealed upon the grounds set out in the opinion.

CRIMINAL action, tried at Fall Term, 1892, of the Superior Court of Gaston County, before Graves, J. The first count of the bill of indictment is as follows: The jurors, etc., present that Ann Yosburg, etc., “ with force and arms, at and in said county, unlawfully and wil-fully did enter upon the lands of one R. V. Cannon, she, the ■said Ann Vosburg, not being then and there the owner or bona fide claimant of said lands, and then and there feloni-ously, unlawfully and…

<p>Bill of Indictment— Witnesses — Evidence—Practice—Solicitor— Grand Jury — Charge—Exception.</p> <p>1. When there are two defendants, and the bill of indictment shows they were “sworn and examined,” and the grand jury ignored the bill as to one and found a true bill as to the other, there is no presumption of law that the latter defendant was examined against himself, and a motion to quash and to arrest judgment on this aceount were both properly refused.</p> <p>S. The practice of sending co-defendants to the grand jury to testify against each other, while allowable is not commended. They may be compelled to so testify unless their evidence tends to criminate themselves.</p> <p>.'8. It is not necessary that it should appear that the State’s witnesses were sent before the grand jury by the Solicitor.</p> <p>•4. A general exception or “broad-side challenge” to the charge of the Court is ineffectual.</p> <p>■5. As a matter of practice the Supreme Court will not hereafter send down a certiorari to supply defects in the record unless sufficient excuse therefor is made to appear, but will, on motion of the Attorney General or adverse party, dismiss the appeal.</p>

This was an indictment for fornication and adultery, tried at the Fall Term, 1892, of Graham Superior Court, before Bynum, J. The jury returned a special verdict, finding, among other .things, that the defendant Martha Cody was married to one Joseph Green, he at that time being the husband of another woman, and that they did not know whether Martha Cody knew of the existence of such former marriage or not.

This was an indictment for the larceny of an ox, tried before Bynum, J., at the Fall Term, 1892, of Swain Superior Court. The facts are sufficiently stated in the opinion of the Court.

INDICTMENT, tried on appeal from the Mayor of Clyde, at Spring Term, 1892, of the Superior Court of Haywood County, before Hoke, J. The original affidavit and warrant charged the defendant and others with violating a town ordinance forbidding tho sale of spirituous liquors in the town of Clyde, which ordinance prescribed that a penalty of $25 should be paid for such sales.