Volume 112 — North Carolina Reports

Civil action. for .specific performance, tried at September Term, 1892, of Buncombe Superior Court, upon a case agreed, before. Bynum, J. ■ The caso agreed is as follows: It is agreed that the facts set forth in the complaint in this cause are true; and it is agreed that the facts setup as matters of defense in the answer are true, as also are the matters alleged in the reply. And all the pleadings are referred to and made a part of this case. It is further agreed that 0.

Civil aotioN, tried at April Term, 1892, of Greene Hupe-rior Court, before Winston, J. In this action the ancillary remedy of claim and delivery was resorted to for the purpose oí' enforcing an alleged lien for rent and advances for agricultural purposes. The plaintiff’s testator Britt died September 15, 1891. The crop of that year ivas seized by the plaintiff executor to satisfy a claim of $125 (note) and $160 (advances made by the testator).

Civil action in nature of creditor’s bill, brought by the State and Guilford county against the Georgia Company, heard on complaint and demurrer at December Term, 1892, before Brown, J., who sustained the demurrer and ordered the action to be dismissed. From this judgment the plaintiffs appealed.

<p>Civil actiox, tried before Bynum, J., and a jury, at August Term, 1892, of BUNCOMBE Superior Court.</p> <p>It was brought by the payee of a note (the feme plaintiff) and her husband against the defendant administrator of AY. R. Murray, deceased, father of feme plaintiff. The note sued on was as follows:</p> <p>“ One day after date I promise to pay to the order of Marcella Murray three hundred and thirty-three -j-3^ dollars, value received, this September 10, 1889.</p> <p>“(Signed) W. R. Murray. (Seal.)</p> <p>“Witness — M. E. Carter.”</p> <p>The defendant denied the execution of the note by his intestate, and for second cause- of defence alleged:</p> <p>1. That at the time of the pretended execution of the said alleged note to the plaintiff by the defendant’s intestate, the said intestate also executed a paper-writing, which was to be taken as a part of the transaction, concerning the execution of said alleged note and others therein mentioned, and delivered said paper-writing, with said note and the others mentioned, to M. E. Garter. The said paper-writing is as follows:</p> <p>“ Mr. M. E. Carter : — The note of four hundred dollars this day executed by me to my wife, Eliza, payable one day after date, and three notes of three hundred and thirty-three dollars each, executed by me to my son, John C. Murray, and my two daughters, Terrissa and Marcella Murray, ■ respectively, payable one day after date, and all left with you, are intended to be paid out of my estate, in addition to their shares respectively as my wife, and .children, and are not to be considered as advancements.</p> <p>“This September 10, 1889.</p> <p>“ (Signed)</p> <p>W. R. Murray.”</p> <p>2. That the said notes described in the said paper-writing, and bearing even date with the said paper-writing, were executed, if at all, without any valid consideration in law and, as he is advised and believes, cannot be enforced in this Court, the same being, as he is also informed and believes, an executory contract and not binding in law against the estate of the defendant’s intestate, the plaintiff herein being his daughter and one of his distributees.</p> <p>3. That at the time of the execution of the said notes and paper-writing the intestate was weak in bod}*- and mind and did not have sufficient mental capacity to make a contract. That owing to his mental incapacity said intestate did not know the nature of his property, its value, nor its relations, nor to wli'om he was attempting to dispose of his property.</p> <p>4.. That prior to the time of the execution of the said notes one John C. Murray, who is the son of the said intestate and the brother of the plantiff herein, had been the confidential agent and manager for the said intestate, W. N. Murray, and had obtained an undue influence over the said intestate. That the said John C. Murray induced the said intestate to leave his home and come to Asheville, where he executed said notes and the said paper-writing. That from information and belief the defendafrt alleges that the said John C. Murray employed the attorney who drew the papers and in whose custody and control they were left. That these notes and paper-writing were signed by the said intestate at a time when he was under the undue and controlling influence of the said John C. Murray, who unduly influenced him to sign the same.</p> <p>5. That from information and belief it was the purpose of the said John C. Murray, in inducing his said father, the defendant’s intestate, to execute said notes and paper-writing, to obtain control of the sum of fourteen hundred dollars ($1,400) then deposited to the credit of the said intestate in the National Bank of Asheville, and to deprive the other distributees of their share of the estate at the death of said W. R. Murray. That at the time of the execution of the said notes and paper-writing the plaintiff was quite old and feeble and not expected to live b.ut a short time. That since the death of said intestate the widow (one of the payees) has had^ dower assigned and her year’s allowance. That this sum of fourteen hundred dollars ($1,400) was and did constitute the principal portion of the personal estate of the said intestate, and that if those notes be enforced the other distributees, there being several of them, will be deprived of their share which may have come to the hands of the defendant, and he is advised and believes that ho holds the personal property of the intestate, including the fourteen hundred dollars ($1,400), in trust for all the distributees after payment of debts and costs of administration.</p> <p>6. That from information and belief, none of the payees named in said notes, except the said John C. Murray, were present at the execution of the same. That they knew nothing of the same, and had no desire to have more than their legal share of intestate’s property, and from information and belief the defendant avers.that the said John C. Murray intended to become the beneficiary of these notes, if only to use the money to his personal profit.</p> <p>7. That no money was delivered to the payees of said notes prior to the death of the said intestate, the $1,400 having come to the possession of the defendant as administrator. The four notes described in said paper-writing-in the aggregate make the sum of $1,400, corresponding to the amount which the said intestate had in bank.</p> <p>The- plaintiff tendered the following issues, which were submitted by the Court and responded to as follows:</p> <p>1. Hid W. R. Murray; at the time lie executed the note ■sued on, liave capacity to understand the nature of the act he was doing, the nature and value of his property, and for whose benefit he was executing it? Answer. Yes.</p> <p>2. Hid the said Murray execute said note in consequence of undue influence exerted over him by John Murray? A. No.</p> <p>8. A'Vas the note delivered to the plaintiff or his agent for him? A. Yes.</p> <p>The defendant tendered the following issues:</p> <p>1. AVas the intestate, at the time of the execution of the paper sued on, of such a state of mind as not to know the nature of his property, its value, and to whom and how he was disposing of the same ?</p> <p>2. AATis the said Murray at the time under the undue influence of John Murray, one of his sons?</p> <p>3. Is the defendant, as administrator, indebted to plaintiff? if so, in what sum?</p> <p>The Court submitted the issues tendered by the plaintiffs, and refused to submit those tendered by the defendant, and the defendant excepted and appealed from the judgment rendered.</p> <p>The testimony on the' trial sent up in the case is very voluminous, but the exceptions are sufficiently stated in the opinion.</p>

Civil actior, brought to Spring Term, 1890, of Edge-combe Superior' Court, for the recovery of the amount clue on two sealed notes, 'and- to' charge the separate estate of the /me'de'fendant with their payment. The notes sued on were given for supplies ' furnished by the plaintiff for the necessary personal expenses of ’ the feme defendant, for the support of her family and the expenses of her farm which tlie action sought to charge with the debt.

<p>Civil aotioN, heard before Bryan, L, at January Term, 1892, of WayNe Superior Court, upon the following agreed statement of facts:</p> <p>“It is agreed that at the time the goods for the purchase-money of which this action is brought were bought the plaintiffs were merchants, doing business in the city of Baltimore, in the State of Maryland, and the defendant L. C. Best was carrying on the trade of milliner and merchant in the city of Goldsboro, State of North Carolina, in her own name, as a licensed trader; that said goods were ordered by the defendant L. C. Best of the plaintiffs, and they were shipped'-by the plaintiffs to her from their place of business in the city of Baltimore, and were to be paid for by defendant L. C. Best at the end of sixty days; that at that time, and since, the defendant was and is a citizen and resident of the State of North Carolina, and a married woman, living with her husband, the defendant N. W. Best. The goods have not been paid for, except the credits set out in the accounts filed, and those not paid for were worth the agreed price of $212.43; that the defendant has never been a free-trader under the statutes of North Carolina, and her husband has never consented in writing to the orders of said goods and to the sale thereof.”</p> <p>Judgment was rendered for defendants, and plaintiffs appealed.</p>

Civil actiok, tried at Fall Term, 1892, of Edgecombe Superior Court, before Skuford, J. The action was brought by husband and wife and trustee under a deed of settlement to enjoin a sale under mortgage of feme plaintiff’s land embraced in the settlement, because the trustee did not join in the deed.

Civil aotioN, tried before Brown, J., and a jury, at Spring Term, 1892, of Northampton Superior Court. ; The plaintiff sought to recover from the defendant, ex-Register of Deeds of said county, the penalties imposed by sections 1818 and 1819 of The Code, for breach of official duty.

<p>PetitioN for a year’s provision under the statute heard, on appeal, before Shuford, J., at Spring Term, 1892, of Gates Superior Court.</p> <p>At the time of the death of T. E. Hayes, September, 1891, he left him surviving and living in his house his said widow and four children under the age of fifteen years, of which children two were the children of the petitioner and two were the children of a former wife.</p> <p>The petitioner continued to live in the husband’s house with his family, including his children by his former wife, until the death of one of her own children, in December, and she soon thereafter removed with her remaining child, and was living to herself when, in February, 1892, she filed her application.</p> <p>The commissioners found the number of the family, under the statute, to consist of the widow and her own two children, one of which had died, as above stated, before the application was- made for her year’s provision, and they allowed the petitioner five hundred dollars, less the amount used of husband’s estate after his death by her.</p> <p>The administrator excepted to the report on the ground that, under the above statement of facts, the Commissioners ought to have found that the family consisted only of the widow and one child, and that they ought to have allowed her only four hundred dollars, less amount of estate of husband used after his death by her.</p> <p>The Clerk sustained the exception and modified the report accordingly, and the petitioner appealed to the Superior Court. „</p> <p>The Judge on appeal overruled the judgment of the Clerk, and the administrator appealed.</p>

Civil actiox, with claim and delivery proceedings, tried before Bryan, /., and a jury, at Spring Term, 1892, Frakk-lix Superior Court. The action was commenced on the 16th day of October, 1891, and claim and delivery proceedings taken out the same day, under which the crops were seized by the Sheriff for the plaintiff the same day, but the defendant gave the undertaking and retained the crop.

<p>PetitioN for partition, commenced before the Clerk and transferred for trial to the Superior Court of Currituck County, and tried before HoJce, J., and a jury, at Pall Term, 1892.</p> <p>Plaintiffs introduced deed from Mary J. Northern to her children, W. D. Northern and others, and to such other child or children as she might have by any marriage thereafter, etc.</p> <p>Feme plaintiff and the Northerns are. the same parties named in the deed as the children of Mary J., and the defendants, other than E. W. Holt, are the children 'of Mary J. and her second husband, fe. W. Holt. At the time the deed was executed the children by said Plolt were not in esse; Mary J. Northern and E. W. Plolt were married September 22,1866, the deed was executed August 27,1866, and recorded September 8, 1866. Plolt and wife were actually possessed of land during coverture. The lands conveyed by the deed are the same as described in petition or complaint, and both plaintiffs and defendants (other than E. W. Plolt) claim under the deed from Mary J. Northern.</p> <p>Defendant E. W. Holt testified that he had no notice of the deed of Mary J. Northern until after the suit was brought; that he never consented to the same ; that after the death of his wife, December, 1891, he might have written J. 0. PMrebee that he was willing for the deed to stand as his wife had intended; that afterwards he offered plaintiffs, if they would allow his children by Mary J., his wife, to come in as tenants in common, he would be satisfied, but this' was before he had consulted counsel or had any information as to his marital rights in the land mentioned in the deed. He then offered a letter from Mary J. Northern, whom he afterwards married, which was as follows :</p> <p>“OCTOBER 20, I860.</p> <p>“ Mr. PIolt : — I have made up my mind to marry you anyhow, don’t matter what anybody says; I have made up my mind to that effect, they may say what they please.</p> <p>“Yours truly (Signed) Mary J. Northern.”.</p> <p>Defendant testified that he knew the handwriting of his wife, and the letter and signature were in her own handwriting. Plaintiffs objected to the introduction of the paper, but it was allowed, and plaintiff excepted.</p> <p>A. J. Davis was introduced in behalf of defendant E. W. Holt, and testified he visited Mary J. Northern during 1866, and E. W. Holt was there, and was employed by her to manage and superintend her fanning; that he and she seemed to be intimate; that he visited Mary J. Northern until after -July, 1866, and stopped because it was'no use for him to continue.’</p> <p>The plaintiffs introduced J. C. Ferebee, who testified he went to see E. W. Holt shortly after the death of his wife; that he said to Holt, “I suppose you are aware your wife made a deed of all her lands to her children?” and he readily replied, “Yes” ;. that Holt told witness at Currituck court-house he would be satisfied if his children were allowed to come in equally with plaintiffs; that the deed should remain as his wife desired; that the offer was not accepted by the plaintiffs, or by any one for them; that Holt wrote witness, after above conversation, that he was willing that the deed should remain as his wife had made it, convoying the lands to all her children.</p> <p>The issues agreed upon were as follows:</p> <p>1. Are the defendants (children of Mary J. ■ by E. W. Holt) tenants in common with the plaintiffs?</p> <p>2. Was there a contract of marriage between Mary J. Northern and E. W. Holt on the 27th day of August, 1866?</p> <p>3. If so, did the defendant E. W. Holt marry Mary J. Northern without notice of the deed, etc. ?</p> <p>4. If so, did he consent to the said deed after his marriage with said Mary J. Northern?</p> <p>The Court charged the jury that, upon all the evidence, they should answer the first issue, Yes; that there was no evidence of defendant E. W. ITolt consenting to the deed), and that the jury should answer the fourth issue, No.</p> <p>The Court, on the second issue, submitted to the jury the paper-writing introduced by defendant Holt, and evidence of A. J. Davis, and the other evidence pertinent offered by plaintiff and defendant, and charged the jury if they believed from the evidence the defendant Holt and Mary J. Northern were engaged to be married at the time the deed was executed, thej'- should answer the third issue, Yes.</p> <p>There was verdict for the defendants, and from the judgment thereon plaintiffs appealed.</p>

Civil actiox, tried before Ilolce, J., and a jury, at Fall Term, 1892, of WASHINGTON Superior Court.

<p>Ejectment — Practice—Issues for the Jury — Defences.</p> <p>1. The only restriction upon the power of a Judge below to settle the issues for the jury is that they shall be such as arise out of the pleadings, such that, upon the verdict, the Court may proceed to judgment, and such as will allow the parties to present to the jury any material view of the law arising ouf of testimony which counsel may request the Court to embody in its instructions; therefore, where a controversy as to the ownership of land was narrowed down to the single question of the date of delivery of a deed, it was not error for the Judge to submit an issue as to such date instead of the usual one involving the title.</p> <p>2. A deed is presumed to have been delivered at the time it bears date, but the presumption may be rebutted by evidence aliunde, in which case it becomes operative from the actual day of delivery.</p> <p>3. Where, in an action for the recovery of land, the defendant, whether he might rightfully claim the relation to the plaintiff of lessee or tenant in common, waives his right and disregards his opportunity to admit by answer or disclaim the true interest of the plaintiff, he cannot, after disputing the plaintiff’s title, fall back on a denial of the ouster when every other defence has failed him. Nor, after failing to establish his ownership, can he by his pleadings make his occupancy adverse ab initio so as to mature title against the plaintiff, when in fact he has held under the plaintiff or those under whom he claims. ■</p> <p>4. The effect of discharging a debt secured by a first mortgage by surrender of the mortgage deed is to make a second mortgage on the same land a first lien, and the immediate execution by the mortgagor of a deed of bargain and sale to the one holding the first mortgage cannot operate to defeat the second mortgage.</p>

This ivas a case submitted to Brown, J., at Chambers, upon a petition and agreement, as follotvs: “Your petitioner respectfully represents to the Court that he is desirous of a settlement of the estate of the said Pennie W. Ruffin, deceased, under the last will and testament, and prays that the Court will construe the said last will and testament, and in particular item two of said will, in so far as it relates to a bequest of personal property to John K. Ruffin, and item…

At the Fall Term, 1892, of CajxdeN Superior Court, before Hoke, /., the defendant entered special appearance and moved to dismiss the action on the ground that the affidavit on which order of publication was based was defective. The Court refused the motion and allowed the plaintiff to amend his affidavit and granted an alias order of publication. Defendant appealed.

Civil action to recover a penalty of $200, brought against the defendant E. E. Roberts, Register of Deeds, and his sureties on his official bond, and tried at Spring Term, 1891, of NORTHAMPTON Superior Court, before Connor, J. The breach of the bond complained of was the violation by the defendant of section 1814 of The Code in regard to the issuance of license for the marriage of a girl under eighteen years of age without consent of her father, the plaintiff.

Civil action, tried before Shuford, J., at Spring Term, 1892, of Chowan Superior Court, on appeal from .Justice’s Court. Plaintiffs introduced and proved the execution of defendant’s promissory note for $125, payable to them, and rested. Defendant introduced a contract, the execution of which by him as party of the second part, and by the plaintiffs as parties of the first part, was admitted.

<p>Records of Court — Impeachment by Parol Testimony.</p> <p>1. The records of a Court, professing- to state judicial transactions of the Court itself, cannot be impeached collaterally by parol testimony or otherwise, but must stand until attacked in a proper proceeding for the purpose and reformed by the Court which made them. Therefore, in an action for damages, in which the title to land came in question, parol testimony, offered to disprove the correctness of a petition for partition and report of a commissioner who sold the land, was properly excluded.</p> <p>2. It is not the province of or allowable for the jury to compare handwriting to determine whether an alteration has been made in an instrument or record, and therefore, where no evidence had been offered to show that a description of land in a petition had been altered, the Court properly refused to allow the jury to take the paper and compare an interlineation with the body of the petition to ascertain whether the description had been wrongfully changed.</p>

Civil actioN, to recover money had and received to use of plaintiffs, heard before Connor, J., at February Term, 1892, of Wake Superior Court, on appeal from the Court of a Justice of the Peace. The facts are sufficiently stated in the opinion of the Court. From the judgment in favor of the plaintiffs defendant appealed.

Civil action, brought by W. A. Davis and N. A. Gregory, trading as Davis & Gregory, and N. A. Gregory and wife, against R. W. Lassiter, Receiver of the Bank of Oxford, and B. P. Thorp, trustee, to cancel a deed of trust, and to restrain a sale of the land embraced therein, heard before Connor, J., at Weldon, on motion for an injunction.

Civil action, tried before Slmford, J., at Spring Term, 1892, of Currituck Superior Court. The plaintiffs, residents of the State of Virginia, brought their action for damages for breach of contract by the defendant who, as alleged, contracted to sell and deliver to them 2,000 bushels of com at Gregory and Snowden Stations, oil the Norfolk & Southern Railroad, but delivered only about 500 bushels.

ActioN, brought by plaintiff, who had obtained a divorce a mensa et thoro against her husband, the defendant, to recover possession of her real estate and for an injunction restraining her husband from interference with -her exclusive control and enjoyment of the same, tried before Brown, J., at Fall Term, 1892, of Nash Superior Court. From a judgment and decree in favor of plaintiff defendant appealed. The facts are sufficiently stated in the opinion of the Court.

This ACTION was brought to and complaint was filed at August Term, 1892, of Harnett Superior Court.

Civil ACTION for divorce, tried at February Term, 1892, of the Superior Court of MeckleNbuug County, before Byman, J. In connection with other testimony tending to prove directly criminal intercourse, as charged in the complaint, between one Palmer and the defendant, as well as their association under suspicious circumstances on other occasions, a witness, Laura Webb, was allowed to testify, defendant objecting, to a conversation between Palmer and defendant, in which Palmer…

<p>Injunction — Description of Land — Exceptions in Deed.</p> <p>1. Where, in a patent to B. setting out the boundaries of a grant of land in the year 1795, there is an exception as follows: “Within which boundaries there hat!h been heretofore granted 22,638 acres,” the exception is not void for uncertainty if it can be shown what land was included in the excepted grant.</p> <p>2. Where it is found as a fact that defendant’s land, claimed under a patent to R., issued in 1716, is within the outer boundaries of the patent to B., under which plaintiff-claims, and that plaintiff has never been in possession of any part of defendant’s land, but has occupied certain portions of the land covered by the B. patent: Meld, that the plaintiff’s possession is constructive only up to the boundaries of the R. patent.</p>

Civil action, tried at Fall Term, 1892, of Pasquotank Superior Court, before Solee, J. Tlie plaintiff and defendant were partners, as farmers and stock-raisers, for tlie year 1890, upon terms set out in articles of partnership.

Civil action, tried at Special Term, 1892, Washington Superior Court, before Holce, J., on appeal from a Justice of the Peace, before whom the plaintiffs, as transferees of the payees, brought their action to recover in money the 'aggregate value of certain orders issued since April, 1891, by the defendant corporation to the plaintiff's transferors for labor done and payable “ in merchandise.” At the trial in the Court below everything was admitted necessary to bring before…

Civil actiox, tried before Bryan,and a jury, at March Term, 1892, of Pitt Superior Court, for damages alleged to have been sustained by the diversion of water on plaintiffs’ land by the negligent construction of defendant company’s road-bed.

(DEPENDANTS’ APPEAL.) Civil action, tried at February Term, 1892, of Wilson Superior Court, before Bryan, J., and a jury.

(plaintiffs’ appeal). Civil action, tried at February Term, 1892, of Wilson Superior Court, before Bryan, J., and a jury. The action was in the nature of a creditor’s bill against the defendant Britton, as administrator of Dr. R. W. King, Peter Plines, trustee, and Carrie J. King, widow of the decedent and the holder of the note secured by the deed of trust, and sought to set aside the deed as fraudulent.

This was a civil ACTION, brought before a Justice of the Peace, for the recovery of $200 due by note from the defendant to the plaintiff. The Constable in the township in which the defendant company had its principal place of business, and where its officers all resided, served the summons by handing it to the President and Secretary and Treasurer of the defendant company, which was read by them and returned to the Constable. These were the only officers of the company.

ActioN by P. D. Broadwell against C. B. Ray. From the judgment defendant appealed, and, material evidence having been omitted from the case as settled, he was granted a certiorari to complete the record. To this the Clerk returns that defendant failed to perfect his appeal or to pay fees for a transcript of the record.

This was a proceeding tried upon exceptions to a homestead return, made upon executions issued upon certain judgments in favor of L. D. Gulley against W. J. Y. Thurs-ton, heard at November Term, 1892, of Johnston Superior Court, before Bryan-, J. When the case was called for hearing the defendant W. J. Y. Thurston did not insist upon his exception to the return that the homestead allotted to him was insufficient in value,' and it was agreed that the allotment of the…

Civil actiox, tried before Winston, J., at November Term, 1892, of Cumberland Superior Court. This is the same cause tried on demurrer (110 N. C., 10). The demurrer having been overruled, the defendant put in an answer; and certain other persons, to-wit, H. W. Lilly and R. T. Gray, executors of E. J. Lilly, W. P. Wemyess, PI.

■Civil actiox for trespass, tried at March Term, 1892, of Pitt Superior Court, before Bryan, J., and a jury. The following issues were submitted to the jury: 1. Are the plaintiffs the owners and in possession of the land in controversy? 2. Have the defendants trespassed on the land of the plaintiffs? 3. What damages have the plaintiffs sustained? The jury responded “Yes” to the first and second issues, and “Nineteen dollars” to the third.

Civil action, tried before Shuford, J., at Spring Term, 1892, of PasquotaNK Superior Court. From the refusal of the Court to submit an .issue as to permanent improvements the defendant appealed. The facts are fully stated in same case, 109 N. C., 23, and in the following opinion by Justice Clark.

This was a orvir, ACTION, tried before Hoke, J., and a jury, at Fall Term, 1892', of Dare Superior Court. The purpose of the action was to compel the Sheriff of Dare county to execute to plaintiff a deed for the two tracts of land set out and described in the complaint, and known as the Charles Horton tract and the Hooker tract; said land having been sold by the said Sheriff for taxes on May 5, 1890, and purchased by plaintiff.

<p>Civil actiou, brought by Thomas Moore against Janies T. Sugg, Tax-collector of Greene County, for an injunction to restrain the sale of real estate for taxes, heard before' Whitaker, J., at Fall Term of Greicnk Superior Court.</p> <p>The complaint alleged that the plaintiff purchased the land subsequent to 1886, and that defendant had advertised the same for sale for the taxes of 1881 to 1886, both inclusive, and that he had bought the land at a foreclosure sale without notice that the taxes were unpaid. The defendant averred that plaintiff had notice of the encumbrance.</p> <p>From an order granting an injunction until the final hearing defendant appealed.</p>

Civil action, heard before Whitaker, J., at December Term, 1892, of Sampson Superior Court. The action was brought by the 'plaintiff as assignee of various claims due laborers, etc., by a firm of contractors to whom the construction of a part of the Cape Fear & Yadkin Yalley Railway Company’s road had been sublet by a subcontractor of the North State Improvement Company, which had the contract for the construction of the whole road.

Civil ACTION, tried before Whitaker, J., at December Term, 1892, of SajipsoN Superior Court. The action was brought by W. A. I)unn, receiver of the Clinton Loan Association, to foreclose a mortgage made by-defendant Merritt to A. S. C. Powell to secure three sealed notes which Powell had, without indorsement, deposited with the association as collateral security for his two unpaid notes.

In an action brought in the (Superior Court of Wake County by the State Treasurer against the defendant, the Clinton Loan Association, for the appointment of a receiver and the winding up of its business, W. A. Dunn was appointed receiver, and, in the course of liquidating the company’s affairs, petitioned the Court for instructions as to payment of dividends, his petition being, in substance, as follows: That in the year 1887 divers persons in Sampson county and elsewhere…

Civil aotioN, tried at May Term, 1892, of SaMPSOx Superior Court, before Winston, ./., upon a case agreed, as follows: 1. That on or about the-- day of -, 1873, and since that time, the defendants above named became members of the Clinton Loan Association under articles of agreement, which said association at the time hereinafter mentioned was unincorporated and did a general banking business in the town of Clinton. 2.

<p>This was a MOTION to dissolve an injunction, heard before Connor, J., at January Term, 1893, of New Hanover Superior Court.</p> <p>The complaint, used as an affidavit upon which the order had been granted, alleged that the plaintiff, in March, 1871, in order to secure his promissory note to defendants, due 1st day of April, 1872, executed to them a mortgage upon certain land-in Wilmington, with the usual power of sale in case of default in the payment of the note; that no payment has ever been made on the note and mortgage, which became barred by the statute of limitations on the 1st of April, 1882, and no action has ever been brought on the same by the defendants; that the plaintiff has been in actual possession of the land ever since the execution of the mortgage; that defendants have advertised the land for sale on 2d February, 1893, and plaintiff prays that théy be perpetually enjoined from selling, etc.</p> <p>From the order dissolving the injunction, plaintiff appealed.</p>

<p>Civil actiox for tho recovery of laud, tried before Bryan, J., and a jury at Spring Term, 1891, of Hyde Superior Court.</p> <p>During the pendency of the action George Credle acquired from the plaintiff Sawyer his interest in the land with knowledge of the pendency of the action and of the equities set up by the defendants, and before the trial was substituted as plaintiff in place of Sawyer.</p> <p>The plaintiff claimed title under deeds from the heirs of Thomas P. Credle, Jr., who died during infancy, and a deed from O. C. Farrar to said Credle, Jr. He also offered in evidence a mortgage executed by Thomas F. Oredle to 0. G Farrar covering the locus and dated July ■ — •, 1872, and duly recorded.</p> <p>The defendant claimed under a deed made to him by O. 0. Farrar and wife in January, 1879, reciting a sale of the land under the mortgage by T. F. Credle to said Farrar; which mortgage, as the answer alleged, was made contemporaneously with the deed from Farrar to Credle, Jr., to secure the purchase-money notes for $600. The answer alleged that during these transactions the said Thomas F. Credle, Jr., was an infant and died before attaining his majority, and that the said O. C. Farrar was ignorant of the fact that he was dealing with an infant, but on the contrary believed that he was dealing with an adult capable of contracting ; that at the time of his purchase, and the payment by him of the purchase-money to the said O. C. Farrar, the defendant was ignorant of the fact that the mortgage under which he purchased was executed by an infant, and, on the contrary, supposed it to have been executed by the father of the said Thomas F. Credle, Jr., who bore exactly the same name, and in whom he supposed the title was. The more so that in signing the mortgage, the addition of “Jr.” was omitted. That upon the death of the said Thomas F. Credle, Jr., his real and personal estate descended and came to his two sisters, and a brother since dead, fand the plaintiff purchased by deed from the two sisters, dated the-day of --■, 1880, and had full notice of all the facts here-inbefore set forth, previous to his said purchase.</p> <p>George Credle testified: "I am the present plaintiff, and I acquired my interest since the institution of this action. I had personal knowledge of the pendency of this action. I had knowledge of the equities set up by the defendant, and I had that knowledge at the time of my purchase.”</p> <p>H. W. Wahab testified: “I sold the land under the mortgage from Credle to Farrar, as agent for Farrar, to a man named Sadler, he being the highest bidder. Sadler transferred his bid to defendant John S. Northan. I was not acquainted with the facts in this case until after suit was brought. The lands are the same that were conveyed by O. C. Farrar to Thomas F. Credle, -Jr.” The mortgage notes, were shown to the witness, and he states “that these were the notes secured by the mortgage under which T sold as agent of Farrar.”</p> <p>ft was admitted that Thomas F* Credle, Jr., was an infant in 1872, and died during his infancy.</p> <p>The defendants offered the following evidence:</p> <p>Deposition of O. C. Farrar admitted by consent, which is as follows, to-wit: “Soon after the close of the late war I purchased the lands described in the complaint of Thomas F. Credle, then a man of fifty years of age or thereabouts; in 1872 this same Thomas F. Credle applied to me in person to resell him the land, which I did. I made the deed in the manner suggested by said Credle, and took what I supposed to he a mortgage from the said Credle, to whom I had sold. I did not then know that there was a Thomas F. Credle, Jr.; I never saw Thomas F. Credle, Jr., so far as I am aware of, and T never had any transactions with any minor of that name, and I never knew that Thomas F. Credle had a son of that name until the institution of this action, and believed that I was selling to and taking a mortgage from Thomas F. Credle, who had formerly owned the land.”</p> <p>The defendant John S. Northan testified: “I am one of the defendants; I bought the land under the mortgage; I • was not present when the mortgage was signed; I have seen the mortgage and sent ,it to O. C. Farrar; it was signed Thomas F. Credle; I took possession of the land at the time I purchased it, and have been since that time in possession.”</p> <p>George Q. Credle testified: “I was a witness to the mortgage from Thomas F..Credle to 0. C. Farrar; there were two Thomas F. Crcdles; Thomas F. Oredle, Sr., signed the mortgage; the notes secured by the mortgage were signed by Thomas F. Oredle, Sr.; I know his handwriting; I know when the deed was made to Thomas F. Credle, Jr.; lie was then about twelve years old; he died when he was about fifteen years old.”</p> <p>Upon cross-examination witness stated: “I think the deed and the mortgage were made at the same time; O. C. Farrar did not live in Hyde county; Thomas F. Credle, Sr., and his son, Thomas F. Credle, lived in Hyde county; I am pretty sure that Farrar knew that Credle had a boy, Thomas F. Credle, Jr.”</p> <p>The issues submitted to the jury and the responses thereto were as follows:</p> <p>1. Did the present plaintiff, Credle, have notice before his purchase of the fact set forth in the answer? Yes.</p> <p>2. Did the original plaintiff, Sawyer, have notice of defendant’s equities before he purchased the lands in dispute? Yes.</p> <p>3. Did W. H. Wahah have notice of defendant’s equities before he acquired his interest? Yes.</p> <p>4. Were the sale of the land to T. F. Credle, Jr., and the mortgage given to secure the purchase-money contemporaneous acts? Yes.</p> <p>5. Did 0. C. Farrar know at the time of the execution of the deed to T. F. Credle, Jr., and the execution of the mortgage to secure the purchase-money, that he ivas contracting and dealing with an infant? No.</p> <p>6. Was the mortgage uiqler which the land was sold signed and executed by Thomas F. Credle, Jr.? No.</p> <p>7. Did 0. G. Farrar at the time of -the making of the deed to Thomas F. Credle, Jr., know that said Thomas F. Credle, Jr., was an infant? No.</p> <p>8. Did Thomas F. Credle, Jr., authorize Thomas F. Credle to sign said mortgage for him? No.</p> <p>Upon the findings of the jury the plaintiff moved for judgment that he be declared the owner of the land and for possession, which was refused.</p> <p>Defendant moved — ■</p> <p>1. That the Court should render judgment upon the said finding, declaring that the plaintiff was not the owner of the land or entitled to recover possession thereof.</p> <p>2. That upon said finding the Court should render judgment declaring that John S. Northan was subrogated to the rights of O. C. Farrar to the full extent of the mortgage debt, with interest thereon as specified in the mortgage, and declare the same a lien upon the land.</p> <p>3. That the Court should render judgment in favor of John S. Northan for the sum of three hundred dollars, with interest from July, 1879, and declare the same a first lien upon the land, and render judgment in favor of 0. C. Far-rar for the balance of the original purchase-money, with interest according to the notes and mortgage, and declare same a second lien upon the land.</p> <p>4. That the Court should render judgment in favor of John S. Northan for the sum of three hundred dollars purchase-money paid by him, with interest on the same from January, 1879, and declare the same a lien upon the said land.</p> <p>The Court rendered its judgment as follows:</p> <p>“1. That the plaintiff Credle is not entitled to recover the land described in the complaint without first paying the purchase-money set forth in the deed dated the 15th of January, 1879, to-wit, the sum of three hundred dollars.</p> <p>“ 2. That the said sum of three hundred dollars is a charge upon the land described in the complaint.</p> <p>“3. That the .said Credle is entitled to the possession of said lands upon the payment of the amount herein declared as a lien thereon.</p> <p>“4. That if the said Credle fails to pay to the defendant Northan the said sum of three hundred dollars within ninety days after the expiration of the present term of this Court, then the commissioner hereinafter appointed is directed to sell said land^at the court-house door in Swan Quarter, for cash, after giving thirty days’ notice of such sale, and execute title to the purchaser, and out of the proceeds of such sale pay to the defendant Northan the said sum of three hundred dollars.</p> <p>“o. That defendant recover costs, etc.”</p> <p>From the judgment the plaintiffs and defendants appealed.</p>

Civil actiox for the foreclosure of a mortgage, tried before Shuford, /., and a jury, at Spring Term, 1892, of Hyde Superior Court. The complaint alleged the execution by E. H. Fortescue and wife to M. Malcely of a note and mortgage for $900 on the 4th of September, 1879, on which there was a balance due on the 19th of December, 1884, of $343, on which date a payment of $149 was made by R. FI.

ActioN by Solomon Preiss and other creditors of E. Cohen against E. Cohen, Ii. Dannenberg, trustee, and others, to set aside as fraudulent a deed of assignment made by Cohen.

(PLAINTIFF’S APPEAL). CiAriL ACTION, begun in Superior Court of Wilsok County by summons and ancillary proceedings in claim and delivery, December 13, 1889.

Civil actior, brought to Fall Term, 1892, of Vaxck Superior Court, by J. S. Harper against R. R. Pinkston, J. A. Bridges, W. E. Gary and W. L. Cunninggim for alleged slander of plaintiff’s wife. The complaint was as follows: “1. That plaintiff was, on the 28th day of November, A. D. 1883, legally married to his present wife, then Miss Lizzie A. Moss, and the marriage has continued until the present time. “ 2.

This was a civil action, tried before Bryan, J., and a jury, at the February Term, 1892, of Yanob Superior Court. The following issues were submitted to the jury: 1. Is the defendant company indebted to plaintiffs, and if so, in what sum? 2. Was W. Ii. S. Burgwyn a partner in the Henderson Tobacco Company when said debt was contracted?

Civil actio x, board and determined by Connor, J., at November Term, 1892, of Pkrhox Superior Court. The case was heard at April Term, 1891, by Boykin, Judge, and from the judgment then rendered dismissing the action an appeal tras taken and heard at September Term, 1891, of this Court, and was reported in 109 N. 0., page 165, where the facts arc fully stated.

<p>Practice — Writ of Recordari, when wed as a “ Writ'of False Judgment.”</p> <p>1. The writ of recordari is authorized by statute (section 545 of The (lode) and recognized by the decisions of this Court, both as a substitute for an appeal from a judgment of a Justice of the Peace, in order to have a new trial on the merits, and as a writ of “false judgment,” to obtain a reversal of an erroneous judgment.</p> <p>2. Where a judgment was rendered by a Justice of the Peace against the defendant, who alleged that no service of the summons was made, he had his election to move before the Justice, or his successor in office, to set aside the judgment or to apply for a writ of recordari as a writ of false judgment; and it was error for the Judge below to dismiss the petition for such writ, without, inquiring into the facts, upon the ground that the petitioner had mistaken his remedy, and could only proceed by a motion in the cause before the Justice of the Peace to vacate the judgment.</p> <p>Relief against a final judgment rendered by a Justice of the Peace, and alleged to have been obtained by fraud and collusion between him and others, cannot be had by means of a writ of recordari, but must be sought by an independent action.</p> <p>4. The provision in section 876 of The Code for an appeal in fifteen days after notice of judgment in cases where “ the process is not personally served,” applies only in cases where the service is by publication, and has no application when the summons is personally served on the agent or officer of a corporation under section 217 (1) of The Code.</p>

Civil action to recover damages for an assault and battery, tried at February Term, 1892, of Wilsox Superior Court, before Bryan, J., and a jury. By consent, the following issues were submitted to the jury: “1. Did the defendant unlawfully assault the plaintiff? “ 2.

Civil actioN, heard before Winston, ./., at April Term, 1892, of SAMPSON Superior Court. From a judgment in favor of defendants plaintiff Dunn, receiver, appealed. The facts are sufficiently stated in the opinion of the Court.

This was a civil ACTION, tried before Connor, at the Fall Term, 1892, of the Superior Court of Duriiah County. The parties duly waived trial by jury, and consented for the Court to hear and determine all questions of law and fact.

This ease was commenced before the Railroad Commission by petition of plaintiff, a resident of Mount Airy, who complained that in two instances the defendant corporation was negligent, and unnecessarily delayed the transmission of messages between himself and his correspondents at Henderson and Winston, to his serious inconvenience and damage.

PetitioN to rehear a cause decided at February Term, 1892 (110 N. (!., 343), in which the judgment of the Court below was affirmed for failure on the part of the appellant to specifically assign the errors in the rulings of the Court.

PetitioN to rehear this case decided at September Term, 1892, and reported fully in 111 N. C., 120. Held: and with a clause of special warranty; so that all persons holding under ‘ B ’ by a title subsequent to the conveyance by ‘ B ’ to plaintiff, are estopped to deny plaintiff’s title.’ “All of which we respectfully submit, and file herewith the certificate as required by law. “Owen H. G-uioN, “Attorney for Plaintiff Petitioner.”

<p>Tliis was a MOTION of the plaintiff to re-instate the appeal which had been previously dismissed.</p>

Civil actioN, tried at October Term, 1892, of the Superior Court of WayNK County, before Bryan, J., a'jury trial being waived. The plaintiff declared on an account for $235.07, dated November 29, 1887, for goods sold and delivered. The defendant admitted the sale and delivery of the goods at tlie price named, but denied the indebtedness, and pleaded the statute of limitations.

<p>Petition to Rehear — Dismissal of Appeal for Want of Assignment of Error — Assessment by City for Special Benefits to Abutting Property — Statute, repeal of.</p> <p>1. An appeal from an adjudication upon an agreed state of facts is a sufficient assignment of error by the party against whom the ruling is made.</p> <p>2. The power to levy assessments upon owners of property for special and peculiar benefits accruing to the same from improvements is not inherent in a public corporation, but must be directly conferred by statute.</p> <p>3. Where a statute conferring authority op a municipal corporation to make assessments on property for special benefits prescribes the mode in which that power shall be exercised, that mode must be strictly pursued, except as to entirely immaterial matters.</p> <p>4. Repeals of statutes by implication are not favored, and in order to give an act, not covering the entire ground of an earlier one nor clearly intended as a substitute for it, the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing an irreconcilable repugnancy between its provisions and those of the earlier law; therefore, where the charter of the city of Greensboro (Private Laws, 1869- 70, ch. 122, as amended by ch. 18, Acts of 1875), relating to the construction and repair of sidewalks and the assessment upon owners of abutting property for the special benefits thereto, required that such benefits should be ascertained by a committee of five freeholders chosen jointly by the commissioners and the property owmer, and an amendment to the charter was made by ch. 44, Acts of 1887, which authorized the commissioners generally to grade and lay out streets, make local aeseemnents, etc., but provided no method of making t-he assessment: Held, that the latter enactment did not, by implication, repeal the particular method prescribed by the former law of making assessments as to sidewalks.</p> <p>5. Inasmuch as ch. 219, Acts of 1889, creating a new' charter for the city of Greensboro, provides no method of levying special assessments of any character, either for past or future improvements, it seems that, as to the latter, they must be made under the general law (The Code, 83803); but as the new' charter, after declaring that all existing laws in conflict with it are repealed, provides that such repeal shall not “ affect any act done or right accruing or accrued or established, but the same shall remain in full force, and be preserved and enforced and enjoyed,” etc., the act does not operate to repeal the old mode of assessment for improvements commenced before the new charter took effect, though not assessed for until afterwards.</p>

Civil aotiok, tried before Bryan, J., at February Term, 1893, of Chathaji Superior Court, for the foreclosure of a mortgage. By consent of parties a jury trial was waived, and his Honor found the following facts: On the 4th day of March, 1889, the defendants executed the bond and mortgage mentioned in the amended complaint.

<p>Civil action' for the recovery of land, heard before Winston, J., at November Term, 1892, of Cumberland Superior Court.</p> <p>The land was sold and conveyed to plaintiff1 in 1884 by the Sheriff of Cumberland County under an execution which issued in 1882 on a judgment in favor of the plaintiff against the deceased husband of the defendant, rendered by a Justice of the Peace in 1873, and duly docketed in the Superior Court. Neither the judgment nor the Sheriff’s deed showed that the judgment was given on a note executed prior to 1868.</p> <p>The defendant insisted that she was entitled to a homestead in the land; if not to a homestead, then to dower.</p> <p>The judgment docket of the Superior Court was introduced, showing that the transcript was docketed on April 4, 1873, the judgment bearing interest from April 1, 1873. The loss of the note and original papers being admitted, parol evidence was admitted to prove that the note was dated in 1861.</p> <p>The Sheriff who sold the laud and executed the deed to the plaintiff testified that the defendant in the execution had no other property than that which was sold.</p> <p>The defendant testified that she was the widow of the execution debtor, and that neither lie nor she had any children.</p> <p>It being left to his Honor to find the facts and declare the law thereon, he found from the evidence' that the note on which the judgment was based was an old note, executed in 1861; that the execution debtor owned no other land at the time of the salé, and that the defendant was not entitled to a homestead in the land, but that the plaintiff was the owner and entitled to the possession thereof, subject to the defendant’s dower, etc.</p> <p>From the judgment rendered the defendant appealed.</p>

This was an action of clam and delivery brought by plaintiff's to recover of defendant a soda-water machine in possession of defendant, tried before Brown, J., at .January Term, 1892, of the Superior Court of New Hanover.

<p>ActioN, tried at Fall Term, 1892; of BladjcN Superior Court, before Winston, J. The action was brought by plaintiff to recover damages alleged; to have resulted by reason of defendant’s negligence. The following issues were submitted to the jury by consent:</p> <p>1. Was the plaintiff injured by the negligence of defendant as alleged?</p> <p>2. Did plaintiff by her own negligence contribute to the injury?</p> <p>3. Did plaintiff execute the release set out in the answer?</p> <p>4. If plaintiff executed the release, did she understand the meaning and effect of it?</p> <p>5. What damage, if any, is the plaintiff' entitled to?</p> <p>The plaintiff testified as follows: “I was on the railroad at Nosindale on February 4, 1891, on the side-track, and did not hear the engine until it ran over my foot. It had touched me before I heard it and I .jumped as I was going from the train; heard no whistle or hell. My right foot was crushed and the doctor cut it off’; was in bed for thiee or four weeks; train was running slowty and went only a short distance alter it struck me. It was a freight train.”'</p> <p>Upon cross-examination plaintiff said: “ I first saw the train below the end of the switch. It was then moving on the main track. This was when 1 first came up to the railroad crossing. I first was on the main track and then got on the side-track. I got on the main track at Clark’s store at Nosindale and went up the same a short distance to the pump-house; did not look back again. If I had looked back I could have seen the engine. It was a straight track. I could have stepped off the side-track. I was going home from (dark’s house, but did not follow the dirt road. I went up the railroad. The dirt road to my house crosses the railroad. I could have crossed over the sidetrack, but did not. I had seen the train below mo; no trestle on the road near Nosindale; no embankment; no fences. I was in the middle of the side-track when the engine struck me and I got all off' but my foot.”</p> <p>On re-direct examination she stated: “I live a mile from Nosindale, and the county road leads by my house to Elizabethtown; no dirt road near railroad track. The doctor came the night I was hurt. I was hurt in the morning. He gave me no medicine to quiet me. I could have walked along the side of the railroad at the point 1 was struck.”</p> <p>Clark, Sheriff, a witness for the plaintiff, testified: “ 1 was at my store, fifty or seventy-five yards from the plaintiff, when the accident happened, and saw her a little while afterwards. The engine was running slowly when it passed my store; heard no bell or whistle,, but heard the whistle blow for the station where freight was put off that morning. Freight, trains usually go on main track until freight is put off; engineer could have stopped the train in ten feet at the speed he was going. It was up grade a little at that point. Plaintiff was suffering', but was conscious, and wanted to go home. By the side of the cross-ties is a path and a dirt road, which was a half mile out of her way home. I think the mail train was at the tank, and both trains blew for the station. There was nothing there to prevent one’s seeing the train. Plaintiff could have crossed the side-track after she crossed the railroad and might have gone along the side of the track. She said to me that she thought the engine was on the straight track until it brushed her and she jumped and fell, and that it was her own fault that caused the injury. Have known plaintiff for several years. She is neither blind nor deaf nor crazy, nor was she lame before receiving the injury. Rosindale is a place on the defendant railroad, - where there is located •nothing but a wood-rack and pump-liouse.”</p> <p>James Oouncill, a witness for plaintiff', and her brother-in- . law, testified: “ I went to see the plaintiff and waited on her for four weeks. She suffered pain, _and for three weeks did not sleep. The doctor left no medicine for her to take. I told Elmore I thought it was plaintiff'’s own negligence that caused the accident.”</p> <p>The plaintiff was recalled and testified that she walked across the main track to the side-track, where she thought the train would not come, and she walked on up the sidetrack. It is needless to set out defendant’s rebutting testimony ; it is not necessary to the understanding of the opinion.</p> <p>At the conclusion of the evidence, the Court being of opinion that plaintiff' was not entitled to recover, directed the jury to answer the second issue, Yes; and thereupon judgment was rendered in favor of the defendant, and the plaintiff appealed, assigning error as follows:</p> <p>1. There was evidence sufficient to justify the jury in finding a verdict for the plaintiff, and the presiding Judge should have submitted it to the jury.</p> <p>2. There being some evidence, it was the duty of the Judge to submit it with proper instructions to the jury, and the failure of the Judge to do this was error.</p>

MotioN by defendant, Richmond & Danville Railroad Company, heard at August Term, 1892, of Iredell Superior Court, before Boykin, J. The motion was that the Court sign the following order: “ It appearing that defendant, the Richmond & Danville Railroad Company, has obtained an order for the removal of this cause into the Circuit Court of the United States for the Western District of North Carolina, all of which appears from the petition, affidavits and bond of said defendant…

Civil aotioN heard, on appeal from the Court of a Justice of the Peace, at August Term, 1892, of Guilford Superior Court, before Connor, J., and a jury. Testimony was introduced by both parties and the issues submitted to the jury under the charge of the Court, to which no exception was made. After verdict and judgment for the defendant plaintiff appealed.

Action of CLAIM AND DELIVERY by plaintiff to recover possession of an engine. Defendant replevied, and .plaintiff and his servants proceeded to remove the property (the defendant being present and objecting), and sold and delivered it to a purchaser in Robeson county. At May Term, 1892, of CUMBERLAND Superior Court the defendant moved for an order requiring plaintiff to return the property forthwith to defendant.

Civil ACTION, brought by plaintiff against C. R. and C. C. Gritcher, principals, and J. A. Long, surety, on an arbitration agreement and bond, and heard before Connor, J., at November Term, 1892, of PersoN Superior Court, on the pleadings, exhibits and admissions. There was judgment for the plaintiff and defendants appealed. The facts are sufficiently stated in the opinion of the •Court.

Civil ACTION, heard, on demurrer, before Winston, J, at October Term, 1892, of Robeson Superior Court. The defendants appealed from judgment of the Court overruling the demurrer. The title of the cause was as follows: “T. A. McNeill and wife, Caroline E. McNeill, in behalf of themselves and all other creditors of the estate of A. S. McICoy, deceased, and State ex rel. T. A. McNeill and wife, Caroline E. McNeill, v. J. I).

<p>Civil action by plaintiff, as administrator of Amos Gooch, deceased, in behalf of himself as administrator and all other creditors of James C. Cozart, against W. W. Cozart, administrator of J. C. Cozart, deceased, and the heirs at law, etc., of said J. C. Cozart, to compel the administrator to sell real estate of deceased for assets to pay his debts.</p> <p>.The plaintiff tendered several issues, all of which were refused, and a single issue was submitted by the Court as follows:</p> <p>“Was the deed executed by James C. Cozart to D. C. Lunsford and Thomas G. Cozart, dated November 21, 1871, made with intent to hinder, delay or defraud Amos Gooch (plaintiff's intestate)?</p> <p>The jury answered “No,” and from the judgment thereon for defendants plaintiff appealed.</p> <p>The facts necessary to an understanding of the decision of the Court are fully and clearly stated in the opinion of Associate Justice MacRae.</p>

Civil actiox, tried before Connor, J., and a jury, at April Term, 1892, of Wake Superior Court, the object being to set aside a judgment as fraudulent and to recover the land sold under execution issued thereon. The facts necessary to an understanding of the decision of the Court are sufficiently stated in the opinion of Associate Justice Buuwell. There was a verdict for plaintiffs, and from the judgment thereon defendants appealed.

Civil action, by tho Durham Fertilizer Company against G. A. Clute and others, members of the Sampson County Alliance, heard before Connor, J., and a jury, at October Term, 1892, of the Superior Court of Durham County. The substance of the pleadings and the facts necessary to an understanding of the decision of the Court are fully set out in the opinion of Associate Justice MaoRaic.

Civil. ACTION, tried before Whitaker, J., and a jury, at December Term, 1892, of Duplin Superior Court, in whicli plaintiffs sought to recover the value of goods alleged to have been sold to defendant.

Civil actiok, tried before Winston, J., at November Term, 1891, of Okanok Superior Court. The action was tried by a referee. On the coming in of his report the defendant demanded a jury trial, which was granted. .The jury returned a verdict for plaintiff. .Judgment accordingly. Appeal by defendant.

<p>Motion to Re-instate — Failure to Print Record for Want of Money.</p> <p>Where an appeal, not filed by appellant as a pauper, was dismissed for failure to print the case on appeal as required by Rules 28 and 29 of this Court, it will not be re-instated on an affidavit and motion of the appellant on the ground that before he could raise the' money to print the record the case was reached and dismissed.</p>

Civil ACTION, heard before Whitaker, J., at January Term, 1893, of CUMBERLAND Superior Court. The plaintiff sued on a note, with payments indorsed. The names of H. B. Butler and Daniel Butler are signed on the face of the note, and it was payable to the order of E. F. Moore, and was due .January 17, 1888, and Moore indorsed it to the bank. The suit was commenced July 8, 1891.

Civil actiost for tlie recovery of land, tried before Boy-kin, J., and a jury, at Spring Term, 1892, of Ansosí Superior Court. This action was originally begun October 26, 1881, by William E. Horne against Burrell Horne and John A. Buchanan. William E. died, and his executors, devisees and heirs at law were made parties plaintiff. Burrell also died, and his heirs at law were made parties defendant.

ActioN to recover land, tried at Fall Term, 1892, of MTuces Superior Court. The defendant, after denying allegations in complaint in reference to wrongful possession, -said: 1.

This was a civil ACTION commenced by a summons returnable to Fall Term, 1892, of Stanly Superior Court. An order of arrest was issued by the Clerk of said Court against the defendant C. A. McPhail. Said defendant was arrested under the order, and bail bond was duly executed.

Civil ACTION, beard before Graves, J., at February Term, 1893, of RookiNGHAM Superior Court. It was originally begun by plaintiff against Catherine S. Irvin, administratrix of John Irvin, but she having been removed pending the action, the present defendant, J. A. Bennett, was substituted as administrator in her place.

<p>Civil action, tried before Boykin, at Spring Term, 1893, of Surry Superior Court.</p> <p>The complaint alleged that on 10th December, 1862, the defendant Nations, qualified as administrator of Jesse Thompson, deceased, the other defendants being sureties on his administration bond, and that on 13th April, 1891, the administrator filed his account before the Clerk of. the Superior Court, showing a balance of $466.65 due the plaintiffs as hgirs and next of kin of the intestate, a small part only of which had been paid, and judgment was asked against the sureties for the penalty of the bond to be discharged upon payment of the amount due, etc.</p> <p>The defendant sureties in their answer contended that the action, as to them, was barred by the statute of presumptions and limitations; that more than ten years, and also more than three years, had elapsed since plaintiff's cause of action accrued; that more than seven years had elapsed since the administrator qualified and made advertisement for creditors to present their claims, etc.</p> <p>The plaintiffs introduced the records of the Clerk’s office of Surry county showing an account filed by the defendant administrator on April 13, 1891, and closed his case, asking for judgment against all of the defendants.</p> <p>Judgment being rendered for the plaintiffs, the defendant sureties appealed.</p>

<p>Practice — Instructions to Jury — Exception—Written Bequest.</p> <p>Where the Judge below, in instructing'the jury, submitted a phase of a question which there was no evidence to support, an oral exception to the question immediately taken and noted and assigned as error for the case.on appeal is sufficient to present the matter on appeal, though no written instruction on the subject was prayed for by the excepting counsel before the close of the evidence as provided by section 415 of The Code.</p>

Civil ACTION, heard before Reiver, J., at Fall Term, 1892, of Wilkes Superior Court. The action was originally begun by L. C. Stokes and Minnie Hunt, heirs at law of M. S. Stokes, deceased. After-wards the administrator of M. S. Stokes was made a party plaintiff.

<p>Ejectment — Estoppel—Findings of Jury.</p> <p>1. Where, in ejectment, the jury found that “plaintiff did advise or induce defendant to buy the land before he purchased the same,” such finding is not sufficient to create an estoppel against plaintiff when it is not also found that plaintiff knew of her title when.she gave the advice, or that defendant ‘did not know of plaintiff’s title, or that he was deceived by such advice.</p> <p>2. A finding- by a jury that defendant in ejectment did not purchase from another in good faith and without knowledge of plaintiff, is not inconsistent with another finding that plaintiff advised or induced the defendant to buy the land before lie purchased it.</p>

This ACTION was tried at the December Term, 1892, of the Superior Court of Guilford County, before Connor, J., and a jury. Tiie plaintiff’s .complaint alleged— 1.

Civil ACTION by Simpson, Bass & Co. against T. H. Pogram, Jr., and J. C. Buxton and J. S. Grogan, assignees of Pogram, for the benefit of creditors, to recover the pro-coeds of the sale of flour alleged to have been consigned by plaintiffs to Pegram for sale by him on commission, and which passed to the assignees by the assignment of Pegram, and was sold by them. The action was tried before Arm-field, J., and a jury, at July (special) Term, 1892, of For-syth Superior Court.

ActioN to recover land, tried at Spring Term, 1892, of Wilkes Superior Court, before Axmfiekl, J. The plaintiffs alleged that they were the owners of certain tracts of land set out in the complaint, and that the defendant was in possession and wrongfully withholding the same.

Petition to reliear the case decided at September Term, 1892, of this Court, and reported in 111 N. C., 328. The petition was as follows : “ The plaintiff, Thomas Moore, respectfully asks the Court for a rehearing upon the following grounds: “ 1.

CONTROVERSY submitted without action,- heard before Connor, J., at Spring Term, 1893, of Duplin Superior Court. The facts and questions submitted were as follows : “1.

(’mu ACTION bv (J. M.: Varner, administrator of W. S. Steel and also of J. H. Steel, -deceased, against N. Johnston administrator of Sarah Jamison, to recover the intestate’s share of the proceeds of the sale of a slave sold under the provisions of the will of defendant’s testratrix for distribution among her grandchildren. Isabella Gallamoro also claimed the fund, and was made a party plaintiff on her motion.

<p>This was a civil actiox tried before Graves, and a jury, at Fall Term, 1890, of Robesox Superior Court.</p> <p>The complaint alleges in substance that the plaintiff Paisley McMillan is the owner in fee-simple of the land described in the complaint, and that the defendants wrongfully withheld possession thereof from the said Paisley.</p> <p>The plaintiffs further allege that on January 1st, 1886, the defendants made and executed their bond and a mortgage convoying said land to plaintiff J. L. McMillan to secure the payment of $168 and interest, due on the 1st of October, 1886; that said J. L. McMillan duly sold said land under the terms of the mortgage on the 29th of November, 1886, the defendant D. C. Baxley being present and making no objection, and plaintiff Paisley became the purchaser at $150, and received from J. L. McMillan a deed in fee-simple for the same; that in the spring of 1887 defendant D. C. Baxley rented said land from Paisley McMillan at $20 per annum, and after notice from said Paisley refused to give up possession to him at the expiration of the term.</p> <p>Defendants admit that they are in possession and deny that they wrongfully withhold it; they say that they intended to make bond and mortgage to plaintiffs for $150, and that it was written $168 by mistake or fraud; they aver that the alleged sale ’was unfair and for a grossly inadequate price; that the same was a sham and a fraud, and the deed, if made by J. L. McMillan to Paisley McMillan, conveyed no title; that Paisley was partner with and agent of J. L. McMillan and managing his business; they allege false representations on the part of one or both of . the plaintiffs as to the amount of the bond and mortgage, and deny that the mortgage 'was ever properly acknowledged for probate; they admit the signing by them of the bond and mortgage. Defendant D. C. Baxley denies that he rented the land from Paisley or that he owes him any rent, and admits that he refused to give him up the possession of the land. Pie sets up a counter-claim or set-off for about $100 for work and labor, etc:, which he avers that plaintiffs ju’omised to credit upon the bond. He alleges that there had been a long course of dealings between plaintiff and defendant D. C. Baxley, and that defendants in 1885 made and executed to plaintiffs a bond for $150 and a mortgage to secure the same, that was intended to cover any balance that might be due upon a settlement between the parties, and that on the 1st of January, 1886, defendants made another bond and mortgage, or attempted to do so, to renew the former ones, and in the same amount to secure any balance due on a settlement; they plead usury in the transaction, and ask for relief.</p> <p>The plaintiffs in their reply deny the allegations of the counter-claim.</p> <p>rPhe plaintiffs tendered the following issues, which, were submitted to the jury and responded to as set out:</p> <p>1. Is Paisley McMillan the owner and entitled to the possession of the land described in the complaint? Answer. Yes.</p> <p>2. What amount of rent, if any, is I). C. Baxley due the said Paisley McMillan for the said land ? A. Nothing.</p> <p>3. Is J. L. McMillan the legal owner and entitled to the possession of the land described in the complaint? A. Yes.</p> <p>4. Is the mortgage still in force and does the relation of mortgagee and mortgagor still exist between J. L. McMillan and the said defendants? A. No.</p> <p>The issues -were excepted to by the defendants, who, in turn, offered the following issues, which were all submitted:</p> <p>1. Was the mortgage of January 1st, 1886, fraudulently or by mistake made for $168.11 instead of $150. A. No.</p> <p>2. Was the mortgage executed for the purpose of securing whatever balance might be proved due upon settlement? A." Yes.</p> <p>3. Was the mortgage properly probated and acknowledged? His Honor held that it was.</p> <p>4. Were plaintiffs J. L. McMillan and Paisly McMillan partners when the mortgage was taken or when the sale was made, or was Paisley McMillan acting as agent for J. L. McMillan?</p> <p>The answer to the first and second questions of this issue was, “No”; and to the last, “Not at sale.”</p> <p>5. What amounts are plaintiffs due the defendants, if any ? A. Nothing.</p> <p>6. Was the work, labor, etc., set out in defendants’ account to be credited on bond secured by mortgage ? A. No.</p> <p>7. Was clue notice of sale and proper advertisement made? A. Yes.</p> <p>8. Was sale fairly conducted ? A. Yes.</p> <p>9. What amount, if any, were defendants duo plaintiffs at time of sale? A. D.ue $168, less credit $18.12.</p> <p>10. Did the land bring a fair price ? A. Yes.</p> <p>11. Was Paisley McMillan a bona fide purchaser for value? A. Yes.</p> <p>His Honor submitted all the issues, but said he did not think there was airy evidence to go to the jury on issues number one and throe offered by the defendants. After the evidence closed and argument began, and after one counsel on each side had addressed the j my, the defendants moved for leave to submit the following issue: “Were the defendants or either of them induced to sign the mortgage by surprise or undue influence?” Motion denied, and defendants excepted. The defendants moved for leave to amend the answer in order to make it conform to the facts proved and to allege that the plaintiffs procured the signatures of defendants by surprise and undue influence. Motion denied, and defendants excepted. There was judgment for plaintiffs, and defendants appealed.</p>

Civil action, heard on application for an injunction before Ármfidcl, J., at Chambers at Statesville on December 20, 1892. Action was brought in Caldwkll Superior Court (Tenth District); restraining order was issued by Bynum, J., the Judge resident in the Eighth District, on the 3d December, 1892, and made returnable at Statesville on the 20th December, 1892, before Armfield, J., who by assignment held the Courts of the Tenth District from July 1, 1892, to December 31, 1892.

Civil aotioN, tried at Spring Term, 1893, of Bujrke Superior Court, before Mclver, J., and a jury. Tlio action was commenced on the 8th dajT of June, 1891, by the issuance of a summons, and on the same day, upon affidavit made prior to the commencement of the action by S. B. Luttrell, the plaintiffs obtained an order for the publication of the summons.

Civil aotioN to recover land, tried before Mclver, J., and a jury, at Fall Term, 1892, of Wilkes Superior Court. Plaintiff claimed title and possession under a deed executed to him as purchaser of the land at a sale made under the power in the mortgage given by defendant. The defendant, after formally answering the ordinary allegations of the complaint, for a further defence alleged: “ 1. That on the 21st day of July, 1890, he executed a mortgage to L. tí.

Civil actiox, heard at July (special) Term, 1892, of Fok-syth Superior Court, on the report of referees and exceptions thereto. The action was brought by the Chemical Company of Canton against their agent, T. H. Pegram, Jr., to recover an alleged balance due by him for fertilizers sold, amounting to $4,140, and against L. W. Pegram and T. PI.

Civil action, heard on complaint and demurrer, at Spring Term, 1892, of Caldwell Superior Court, before Ch'aves, J. The complaint alleged in substance that plaintiffs were partners in mercantile business under the name of Coffey & WhicLby, and as such deposited in a bank of exchange and deposit established, owned and operated by one I).

Civil acitioN, tried at Fall Term, 1892, of Watauga Superior Court, before Armfield, J., and a .jury. Plaintiff introduced in evidence a deed for the land in controversy to himself from one Cleveland Eggers, dated in 1892, purporting to convey said land to plaintiff in fee.

Civil action, brought in the name of John A. Dickson, J. N. Harshaw and J. 0. Hallyburton, executors of Jacob ITarshaw, deceased, against Joseph Brittain, administrator de bonis non of John A. Dickson, tried by Ármfield, J., and a jury, at Fall Term, 1892, of Burke Superior Court.

<p>Civil actioN, tried at Fall Term, 1892, of Hkxdkrsox Superior Court, before Armfield, J.</p> <p>It was agreed that the case should be submitted to the Court upon the admissions in the pleadings and the exhibits.</p> <p>On the 1st of October, 1867, E. L. Tronholm executed the following deed of settlement:</p> <p>“State of North Carolina — Henderson County.</p> <p>“Whereas, it is my desire to secure to Eliza Bonsai, my wife, and to her children, a portion of my real property: Now, therefore, in consideration of the sum of one dollar to me in hand paid, and for the purposes above mentioned, I have this day bargained and sold, and by these presents do bargain and sell, unto my son, kSavage Deas Trenholm, to him and to his heirs forever, all my right and title and interest in a certain tract of land lying and being in the títato and county aforesaid, known as the Mountain Lodge place. * * *</p> <p>“To have and to hold, all and singular, the said three hundred and fifty-nine acres of land, more or less, and all and singular the premises and appurtenances to the said ¡Savage Deas Trenholm, his heirs and assigns forever, in trust, nevertheless, for the following uses and purposes, and no other: In trust for the sole use and benefit of the said Eliza Bonsai Trenholm and her heirs forever, and I do hereby authorize and empower the said Savage Deas Tren-holm, the trustee aforesaid, at any time to dispose of all and singular the lands aforementioned, when so required by the said Eliza Bonsai Trenholm, and to invest the proceeds as she may direct.</p> <p>“In witness whereof I have hereunto set my hand and seal, this the 1st day of October, in the year of our Lord eighteen hundred and sixty-seven.</p> <p>“E. L. Trenholm, (L. S.) ”</p> <p>On the 14th of November, 1889, the said Eliza B. Tren-holm, mentioned as beneficiary under the first deed, being then and now a widow, executed the following deed:</p> <p>“ ¡State ok South Carolina.</p> <p>“ Know All Men by These Presents, That I, Eliza B. Tren-holm, in Charleston, in the State aforesaid, for and in con-sirloration of love and affection I bear to my daughter, Hellen E. Grimball, and her daughters, and of one dollar to me paid by William Monroe, of Union, in the State aforesaid, have granted, bargained, and sold and released, and by these presents do grant, bargain, and sell and release, unto the said William Monroe all that certain tract of land containing three hundred and eighty acres, more or less, situated and lying at Flat Rock, in the county of Henderson, in the State of North Carolina, and bounded bj1- lands of Rudolph Seigling, McCullough, Joseph Walker, James Rutledge, and others, excepting ten acres of the hill side adjoining James Rutledge, and also about twenty-two acres of the northerly end of said tract lying outside of the fencing, which said ten acres and twenty-two acres are specifically reserved and not hereby conveyed, said lands being all my real estate in said county of Henderson; and I do also give, grant, bargain, and sell and deliver unto the said William Monroe all the household and kitchen furniture, and all the personal property in and upon said premises, together with all and singular the rights, members, hereditaments, and appurtenances to said premises and property belonging, or in anywise incident or appertaining.</p> <p>“To have and to hold all and singular the pi’omises before mentioned, except said ten acres and said twenty-two acres, more or less, with and to the use of said William Monroe, his heirs and assigns forever, and said personal property unto and to the use of said William Monroe, his executors and administrators or assigns forever, in trust, nevertheless, to hold the same for the use and benefit of said Hellen E. Grimball and her daughters, born and to be born, for and during the life of said Hellen E. Grimball, and until the youngest of said daughters shall attain the age of twenty-one years, and at and after the happening of both events, that is to say, upon the death of said Hellen E. Grimball and the arrival at full age of her youngest daughter, then being, upon the future trust to convey said huid to said daughter or daughters of Hellen E. Grimball as shall then be living, in fee-simple, and if there be no such (laughters then living, then to such person or persons as the said Hellen E. Grimball bjr her last will and testament, duly executed, shall appoint, and in default of such appointment to the heirs at law of said Hellen E. Grimball. And 1 do hereby bind myself and my heirs and my executors and administrators to warrant and forever defend all and singular the said premises and property unto the said William Monroe, his heirs and assigns, in trust as aforesaid, against me and my heirs lawfully claiming, or to claim, the same, or any part thereof, and I hereby give and grant unto said William Monroe full power and authority to convey said premises unto another or' substituted trustee, in his stead, upon the same trust and with the same limitations as contained herein above, and with like power of substitution, provided the consent of said Hellen E. Grimball be obtained and indorsed in writing upon such deed or deeds.</p> <p>“Witness my hand and seal, this 14th day of November, A. D. 1889. Eliza B. Trexiiolm.”</p> <p>After alleging the execution of both of the foregoing deeds by the grantors at the dates respectively set forth in the instruments, the plaintiff Monroe further alleges that after the execution of the deed to him by Mrs. E. B. Tren-holm he repeatedly demanded of the defendant, Savage D. Trenholm, that he execute to'him, Monroe, a deed for the land conveyed to defendant by E. L. Trenholm, but defendant has refused to do so, and holds adversely to himself and his co-plaintiff, Helen E. Grimball. The further allegations and prayer for relief are as follows :</p> <p>4. That said defendant is in possession of said land, wrongfully receiving the rents thereof, and refuses to deliver possession to the plaintiff or his cestui que trust.</p> <p>5. That it is not necessary for the defendant to hold possession of the land in order to effectuate the intention of E. E. Trenholm, and in equity and good conscience he should convey the legal interest vested in him to the plaintiff, subject to the uses and trusts mentioned in “ Exhibit B.” Wherefore plaintiffs pray judgment that defendant be directed to execute to plaintiff a deed in fee-simple conveying to him the legal title vested in said defendant by the deed of October 1, 1867, and deliver possession of said land to the plaintiff, and for costs, etc.</p> <p>In his answer the defendant, tí. I). Trenholm, avers that Eliza B. Trenholm is an old and infirm lady and has been unduly influenced to convey or attempt to convey the land to plaintiff Monroe, the attorney of her son-in-law, II. M. Grimball, for the benefit of her daughter, Helen Grimball, who is the wife of the said II. M. Grimball. He denies that he, tí. I). Trenholm, is required to convey said land for any other purpose than a re-investment of the proceeds of a sale for a valuable consideration, and insists that the conveyance of E. B. Trenholm passed nothing. He admits the execution of the two papers filed as exhibits, but denies all other allegations.</p> <p>The plaintiff, replying to the defendant’s answer, denied the allegations contained in paragraphs one and two of the defendant’s further defence, and further said—</p> <p>That the defendant has been for years prior to the commencement of this action, by reason of his dissipated habits, incapable of managing and preserving the property described in the complaint. That the purpose of this action is to compel the defendant to execute to the plaintiff as directed by the deed in trust to him, and to obtain possession of the in’operty so as to preserve the same from waste, and thereby insure to Mrs. E. B. Trenholm a comfortable home during her life; that it is not the wish or desire of the plaintiff, nor of his cestui que trust, Mrs. Grim-ball, to dispossess Mrs. E. B. Trenholm, her mother, or to deprive her of the comforts of her home, or in any way to interfere with her home, but simply to carry into effect the deed of trust to the plaintiff as aforesaid.</p> <p>The Court, rendered the following judgment:</p> <p>“This cause, coming on to be tried before me upon the complaint, answer and reply, and the admissions contained in the same, and it appearing to the Court that the plaintiff is entitled to tire relief demanded in his complaint: It is ordered and adjudged by the Court that the defendant execute and deliver to the plaintiff' a deed in fee for the land described in the complaint, except the ten and twenty acres mentioned therein, to the plaintiff William Monroe, trustee, as prayed for in said complaint, and that the plaintiff recover possession of said land and the costs of this action. And it is further ordered that the effect of this decree shall be to transfer to "William Monroe, trustee, the legal title of the said property to be held in the same plight, condition and estate as though the conveyance ordered •was in fact existing, and that the Cleric of this Court, upon the application of the plaintiff, issue to the Sheriff of said county a writ of possession commanding him to put the plaintiff in possession of the said land.”</p> <p>From this judgment the defendant appealed.</p>

This was a civil action, tried on appeal from a Justice of the Peace at the Fall Term, 1892, of the Superior Court of Cleveland County, before Graven, J. The plaintiff complained in the .Justice’s Court that the defendant was indebted to him for work and labor done in the sum of $80. The defendant denied that he owed the plaintiff anything.

Civil actiox, tried at August Term, 1892, of Iredell Superior Court-, before Boykin, J. Upon an intimation by his Honor that, upon the evidence introduced, they could - not recover the plaintiffs submitted to a nonsuit and appealed. The facts necessary to an understanding of the decision are fully stated in the opinion of Associate .Justice MaoRae.

Civil aotior for the recovery of land, tried before Bynum, J., and a jury, at the Fall Term, 1891, of the Superior Court of IÍENDKRKON County. The complaint and answer were as follows: The plaintiff complains of the defendant and alleges— 1.

Civil actioN, hoard at Fall Term, 1892, of McDowell Superior Court, before Arm-field, J. His Honor gave judgment for the plaintiff against the defendant Sanford for $2,774.91, and declared the same to be a lion upon the lot and buildings thereon belonging to the defendant Marion Hotel and Belt Railway Company. From this judgment defendant Sanford appealed.

<p>MotioN to continue a restraining order to tlie hearing, heard before Connor, J., at Chambers in Oxford, on November 28, 1892.</p> <p>The plaintiff filed affidavits tending to show that it was constructing a railroad from Egypt, in Chatham county, to a point in Randolph county, and that for the purpose of a right of way for its road it had obtained title to the land in question from the owners thereof; that its work of construction was progressing, and that it was now necessary that it use the land in dispute to build its road on, as it was completed to this point; that the defendant had, without title, taken forcible possession of the land, and was now engaged in constructing its road on the same land; that at a place on said land it was necessary to cross Tyson’s Creek, and that at this point there was not room for both roads to be constructed, and that unless the defendant was enjoined the plaintiff would be obliged to stop its work, or to abandon its location and select another at very heavy expense.</p> <p>The defendant denied these allegations, and introduced evidence tending to show a condemnation of said land by it, and also to show that there was room at Tyson’s Creek for both roads to cross without danger or inconvenience.</p> <p>His Honor found that there was room at Tyson’s Creek for both roads to cross without going outside of the disputed land, and dissolved the order in part, from which the plaintiff appealed.</p>

Civiu ACTION, tried before Graves, J., and a jury, at Eall Term, 1892, of Meokxenburo Superior Court. The facts in the case are as follows: One Thomas Russell made a will appointing D. P. Lee executor.

Civil ACTION, tried at Spring Term, 1892, of McDowell Superior Court, before Grams, J. There was evidence that at the time the merchandise, on which the notes set out in the record were based, was purchased by the defendants, J. F. Norris, Benjamin Aldridge and W. C. Walsh were partners trading under the firm name of J. F. Norris & Co., in the town of Elk Park, Mitchell county, N. C.; that the notes were executed, after repeated extensions of time, for overdue bills of…

<p>Civil actiox, tried at Spring Term, 1892 of Caldwell Superior Court, before Graves, J.</p> <p>Both parties claimed under the Graggs. The leases introduced by plaintiffs and under which they claimed are as follows:</p> <p>Lease from Gragg to Maxwell & Stewart. — “This indenture, made this the 19th day of December, 1879, between Madison Gragg and Caroline Gragg, his wife, and Elizabeth Gragg, his mother, of the county of Caldwell and State of North Carolina, of the first part, and A. L. Maxwell and John W. Stewart, of the county of Knox and State of Tennessee, of the second part,</p> <p>“ Witnesseth, that for and in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and such further considerations as are hereafter mentioned and covenants hereinafter contained, hereby leases, and by these presents does grant and convey to the said parties of the second part, their heirs, executors, administrators and assigns, the following described piece or tract of land, situated in ■ Globe Township, Caldwell county, State of North Carolina, bounded and described as follows:</p> <p>“Beginning on a chestnut oak, running north to Harrison Gragg’s and Solomon Dugger’s line; thence to the White line; thence with said line to the line of the old Gragg tract to the beginning, containing three hundred more or less acres, for the purposes of boring, mining and operating for gold, silver and such other minerals as may exist therein, or be found for the period and term of ninety-nine years; the said second parties to have the exclusive right to explore the said tract of land, to bore, work and take from the same any gold, silver or all other minerals therein contained for the term aforesaid, and to have for themselves, their heirs and assigns the right of way over said tract of land for the purposes of exploring, working or developing any part of said tract of land for the purposes aforesaid, and to have the right of taking sufficient timber for the purpose of conducting said exploring and mining operations, and the right to erect any buildings on said premises as they may desire for any purpose whatsoever, and to have the right of way to any well, spring or water-course that it may be necessary to use in said mining operations; and the said second parties may have the right to remove all engines, tools, machinery and buildings that they may put on said premises. And it is further agreed that the said parties have the right to sublease said land for the purposes above mentioned, with all the rights and privileges herein granted to the parties of the second part, and the said parties of the second part, their heirs, executors, administrators or assigns, hereby agree to pay to the parties of the first part, their administrators, executors, heirs or assigns, the one-tenth part of all the net proceeds of any minerals taken from said land.</p> <p>“ In testimony whereof,” etc.</p> <p>Contract. — “ This agreement, made this 24th March, 1866, and entered into between Elizabeth Gragg and Madison Gragg, of the county and State aforesaid, of the first part, and A. E. Iiaigler, of the county and State aforesaid, of the second part, AVitnesseth, that whereas we, Elizabeth Gragg and Madison Gragg, have this day bargained and leased to the said A. E. Iiaigler the mineral interest in a certain tract of land in Caldwell county and State aforesaid for twenty-five years, with the privilege of wood and water, for mining purposes, containing 295 acres, lying on the waters of Wilson Creek, beginning on a chestnut oak, Edmund Gragg’s corner, and running with the calls of the State grant, which is registered in Book D, page 554, and warrant said lease against all other persons. And the said A. E. Haigler agrees, on his part, to pay to Elizabeth Gragg and Madison Gragg the tenth of the gold or other minerals that the said Haigler may obtain from said lands; and further agrees to have said mine tested during the year 1866, if said mine should justify, to go to working said mine. Should the said Haigler fail to comply with this contract he forfeits this lease. The said Haigler to have possessioir from this date.</p> <p>“Witness our hands.and seals, the day and date above written. The toll to be paid as it is made.”</p> <p>The defendants claimed under a deed from Madison Gragg and wife, Caroline, and Margaret Gragg to John W. Todd, Charles II. Brown and Alfred Wortman, whereby the grantors conveyed, with general warrant}1-, all their right, title and interest in and to all the minerals on the locus, with, the usual rights and privileges of roads, water, etc., necessary for operating mines, etc.</p> <p>The issues submitted and the responses thereto were as follows:</p> <p>1. Are the plaintiffs the owners of the mines and mineral interest in the lands in controversy? Answer. Ho.</p> <p>2. Are the defendants in the wrongful possession thereof? A. No.</p> <p>3. What damages have the plaintiffs sustained by reason of the wrongful possession ? A. None.</p> <p>4. Has the lease described in the answer as executed to Maxwell and Stewart become void by reason of their failure to perform the conditions and stipulations contained in said lease, as stated in answer? A. Yes.</p> <p>5. Has the lease described in the answer to A. E. Haig-ler expired or become void by reason of his failure to perform its conditions and stipulations, as alleged in the answer? A. Yes.</p> <p>6. Are the defendants owners of the lands covered by their deed, as set forth in the answer? A. Yes.</p> <p>The Court instructed the jury as follows:</p> <p>“ The construction of the writing is a matter for the Court. The contract between Graggs and plaintiff's is not a conveyance of the entire estate, but a lease for a term of years— for ninety-nine years. The conditions of the contract are the express stipulations set out in the written contract, and in addition to such written stipulated conditions contained in the contract the law implies other conditions. In this contract the plaintiffs, the lessees, set out the purpose for which this contract was made — that is, for the purpose of testing, cleA7eloping and operating for minerals. (The contract was here read to the jury by the Court). This imposed upon the lessees the duty of developing, testing and operating for minerals in a reasonable time, as such mines are usuallj7 worked, with ordinary diligence under surrounding circumstances, not simply for their own profit and advantage, but to-the end that the lessors should have their tenth of the clear profits.. In this case, if the plaintiffs obtained their lease in 1879, went on the land and developed and tested the mine by 1883, and then if they found the mine valuable, and if the lessors then assisted them in removing all clouds on the title, and after that the lessees failed and neglected to work the mine so as to give the lessors the benefit of their part of the clear profits, then the plaintiffs, these lessees, did not work or operate the mine or sublet to others in reasonable time. The lessees, the plaintiffs, would have but their rights, and the lessors might elect to declare the lease defeated by the failure of plaintiffs to perform the conditions the law attaches to the contract. The privilege conferred on the lessees to sublet was to "sublet for the purposes for which the mine was leased to them, and did not authorize them to hold the property for an unreasonable time to sublet to others, or to organize companies to work such mine. They must get to work in reasonable time. It is true that courts of equity, in certain cases, relieve against the forfeiture which, according to the rigid rules of common law, becomes unforeseen, had to perform a condition subsequent; but such cases were limited to those cases where the compensation can be made certain; but when it depends on unliquidated and uncertain damages the rule will not apply. It does not arise in this case. A lessee cannot deny the title of his landlord; and he cannot, while in the occupation as a tenant, acquire and set up a title adverse to his landlord until he shall have first surrendered to his landlord, but the rule does not apply to a servant merely. Here, if there had been a renting or a leasing to Workman by the plaintiffs, he would be estopped. If he was not a lessee, and was merely employed to work the mines for the plaintiffs, although he may have been paid by them for his services, and had under him hands, machinery and implements furnished and paid for bjr plaintiffs, still Wortman would not be estopped from acquiring a right adverse to that of plaintiffs. Reasonable time is usually deemed a question for the Court. I understood the counsel to agree that in this case it is a mixed question of law and fact. It becomes you-r duty, then, in this case to ascertain what the facts are, and apply to the facts found the law as laid down by the Court. If the plaintiffs developed and tested the mine, and with the assistance of the lessors had all clouds removed from the title, and found the mine valuable and ore fit to be worked with profit in May, 1883, and failed to work it or sublet it to be worked up until 1889, or for a period of five years, this did not comply with the conditions the law imposed on them. You will observe I have told you they were only bound to work, as such mines are worked, with ordinary diligence and care. If the plaintiffs did not so fail to perform obligations imposed on them, then their right under the lease was not forfeited.”</p> <p>Tbe plaintiffs’ counsel, at tlie conclusion of the evidence, requested the Court, in writing, to give the following special instructions:</p> <p>1. That the lease from the Graggs to the plaintiffs, dated the 19th of December, 1879, conveyed all the mines and minerals on said land, with the exclusive right to occupy said land to search for mines and minerals, and to sublet the same to the plaintiffs.</p> <p>2. That the contract of lease to the plaintiffs gave the plaintiffs no right to surrender their term at any period ■within ninety-nine years and end their obligation to the Graggs, their lessors, to pay rent under the lease.</p> <p>3. That the lessors of the plaintiffs, the Graggs, had the right to receive any sum from the plaintiffs as rent, or for any failure to develop the mine, if such existed, and as long as said grantors remained inactive and did not make an actual demand of the plaintiffs before entry and sale to the defendants for the land, the said contract remained in full force.</p> <p>4. If a lease be made reserving rent, and that for the nonpayment the lessors may re-enter, there must be an actual demand made previous to the entry, otherwise it is tortious, because such condition of re-entry is in derogation of the grant, and the estate at law being once defeated cannot be restored by any subsequent payment.</p> <p>5. With respect to conditions precedent and subsequent the prevailing distinction is to relieve against conditions subsequent in all cases where compensation can be made.</p> <p>6. That if Wortman, the defendant, was employed by the plaintiffs to assist in testing and exploring this Gragg property, and represented to the plaintiffs that he was acting-under their authority and under their lease, that although he may have then taken a lease from the Graggs subsequent to the plaintiffs’ lease, he could not now set up any claim to the hind that would avail him until after he surrendered possession to the plaintiffs.</p> <p>7. That if "Wortman represented to Maxwell that all he was doing was to protect his interest, and this led Maxwell to believe that he, Wortman, was assisting him to develop the mine, he cannot now be heard to say that what he did was not for Maxwell’s benefit, although his real motive might have been only to allure St. Louis capitalists, as he swore.</p> <p>8. If Wortman, at the time he took his lease from the Graggs, was in the employment of the plaintiffs, and represented to them that what he was doing was for their benefit, and to assist them in developing the mine, he is estopped to deny the plaintiffs’ title.</p> <p>His Honor refused the third, fourth, sixth, seventh and eighth special instructions, and refused the first, second and fifth as asked, except so far as they are mentioned in his charge, and the plaintiffs excepted.</p> <p>There was a verdict on the issues, as indicated by the answers thereto, for the defendants. Rule for a new trial by the plaintiffs, assigning for error—</p> <p>1. The refusal of the Judge to give special instructions Ros. 1, 2, 3, 4, 5, 6, 7 and 8 as requested.</p> <p>2. To the charge as given, in that it failed to instruct the jury that, from all the evidence, the plaintiffs were entitled to recover.</p> <p>3. In that the said charge instructed the jury if the plaintiffs, in 1883, discovered that the minerals were of sufficient value to justify working the mine, and stopped work to get the Haigler lease removed, and the Graggs assisted them to remove the Haigler lease, and they afterwards, and before the conveyance to the defendants by the Graggs, failed to work the mine so as to produce a profit, so that the Graggs could get their rent, that this failure on their part operated as a forfeiture of tlieir rights in the mines and minerals in said lands.</p> <p>4. That said charge instructed the jury that the said lease required of the plaintiffs inure than exploring, boring, excavating and testing the mines and minerals; that they must show that the mines had been operated, that is, worked, and if they delayed for the period of five years to work the mines they forfeited their rights.</p> <p>5. In-that said charge instructed the jury that, in some cases in which compensation for the breach of conditions subsequent or implied covenants could be made, a failure to comply with all the conditions and implied covenants would not invalidate the conveyance, but that this was not á case in which compensation could be made.</p> <p>Judgment on the verdict for the defendants. Appeal by the plaintiffs.</p>

Civil ACTION to recover for use of right of way over plaintiff’s land, tried at Spring Term, 1892, of MacoN Superior Court, before Ilolce, J., on defendant’s appeal from a Justice of the Peace. Plaintiff offered in evidence a deed from Elijah Raby and wife to the defendant, dated 25th April, 1885, granting the right of way oi-er lands to be utilized in the construction of a ditch for the transportation of water, and reserving a yearly rental of $20.

<p>MotioN to vacate an order of arrest, heard, upon the submission of an issue of fraud to the jury, at Fall Term, 1892, of Swain Superior Court, before Bynum, J.</p> <p>The following issue "was prepared by the Court and submitted to the jury, to-wit: “Did the defendant, J. AY. L. Arthur, dispose of his property to Collins and Allison with an intent to defraud his creditors?”</p> <p>Counsel for defendant Arthur proposed to ask the witness Collins “ whether the trade between witness and Arthur was a bona fide transaction,” to which question the plaintiffs objected — (1) because it was asking the witness to state a conclusion of law; (2) it was asking the witness to state an opinion, and not facts. Counsel for defendant proposed to ask the same question of the witness Allison, and to this question the plaintiffs interposed the same objections, and upon the same grounds; both of which objections were overruled, to which the plaintiffs excepted, and the said witnesses were allowed to testify that said transaction was bona Jicle and without fraud.</p> <p>The jury responded to the issue in the negative, and from a judgment vacating the order of arrest the plaintiffs appealed.</p>

Civil aotiox, tried at December Term, 1892, of Bux-ooMbe Superior Court, before Bynum, J, and a jury, the object being to recover damages accruing to plaintiff from the condemnation of her land for a street. The assessors awarded her $2,000, and on appeal by the defendant to the Superior Court the same damages were allowed by the jury, and from a judgment for the same defendant appealed.

Civil aotiox for the recovery of land, tried before Armfield, J., and a jury, at Spring Term, 1893, of Catawba Superior Court. On the trial the issue submitted by consent of the parties related to the location of a boundary line upon which the case turned. There was no exception to the .Judge’s charge to the jury and no instruction was asked for in writing, but during the argument the plaintiff’s counsel made a verbal request for an instruction, which was not given.

<p>This was an ACTION, commenced before a Justice of the Peace and carried to the Superior Court of HeNDEksox County, and tried before Avmfield, J., and a jury, at Fall Term, 1892.</p> <p>The plaintiff' filed the following complaint, viz: The plaintiff complains:</p> <p>1. That the defendants, Commissioners as aforesaid, collected, or caused to be collected, as a tax for 1891, on the plaintiff’s Summit Hill property, the sum of $45.80, as due county and State upon an assessment of 1891.</p> <p>2. That said assessment was invalid, excessive and une- , cjual to other surrounding property.</p> <p>3. That said $45.80 was paid to T. C. Israel, Sheriff of said county, whom said defendants had instructed and ordered to collect the said taxes for said year 1891, under the protest of the plaintiff, on March 11, 1891.</p> <p>4. That within thirty days after said payment the plaintiff did demand in writing of the Treasurer of said county the said sum of $45.80, and that the Treasurer refused to pay or refund the same, or any part thereof, and that more than ninety days have passed since such demand, and no such payment has been made.</p> <p>The defendants filed an answer admitting the allegations of the first, third and fourth paragraphs and denying those of the second, and asked that said action be dismissed on the ground that the plaintiff had mistaken his remedy in such cases.</p> <p>When the case uras called for trial the defendants moved the Court to decide that the only redress the plaintiff had against an unequal or excessive assessment on his land b)7 the assessors was the remedy given by the Laws of 1891, chapter 826, sections 25, 26 and 27, on application to the Board of Commissioners, and that the remedy given in section 78 of said chapter 326 is a remedy in favor of those who pay taxes that are levied or assessed for an illegal or unauthorized purpose, -or was for any reason invalid or excessive, and that the words invalid or excessive have no reference to excessive assessments, but to excessive or invalid levies.</p> <p>The plaintiff proved on the trial that he had applied to the Board of Commissioners for redress under sections 25, 26 and 27. The Court, being of a different opinion, overruled the defendant’s motion, and defendant excepted.</p> <p>The following issue was submitted to the jury:</p> <p>What was the true value in money at the time of the assessment of the Summit Hill property?</p> <p>There was no contention on the part of the plaintiff, nor proof offered to show any error, illegality, invalidity or excess in the levy of the taxes, but the whole of the evidence was directed to the question as to whether the property mentioned in said complaint was assessed too high or in excess of adjacent or similar property in the same locality.</p> <p>The Court charged the jury that they should find from the evidence what the true market value of the property was at the date of the assessment, which they found to be $2,500. This was $1,250 less than the assessment complained of.</p> <p>Upon this verdict the Court gave judgment for plaintiff for $15.76, and the defendants appealed.</p>

Civil actiox, commenced before a -Justice of the Peace and tried on appeal at the Special Term, 1892, of Rutherford Superior Court, before Hoke, J. The plaintiff Simpson filed a formal complaint, after-wards adopted by plaintiff Davis when made a party.

Civil action, tried before Bynum, J., and a jury, at Special Term, 1892, of Lincoln Superior Court, wherein plaintiff, as administrator of Robert Murdock, sought to recover of the defendant damages for the negligent expulsion of his intestate from defendant’s train on an inclement night while he was intoxicated, thereby exposing him to the injuries resulting in his death.

Civil aotiox, tried at Fall Term, 1892, of the ¡Superior Court of MecKLUNbuiiu County, before Graves, J., and a jury.

<p>Unregistered Deed, — Constructive Notice — Purchaser at Execution Sale.</p> <p>The proviso to section 1, ch. 147, Acts of 1885 (“Connor’s Act”), that no purchase of lan<l from a donor, bargainor or lessor shall avail or pass title as against any unregistered deed executed prior to December 1, 1885, where there is constructive or actual notice, applies as well to a purchaser of land at an execution sale with actual notice as to a purchaser from the “bargainor or lessor.”</p> <p>Clark, J., dissents arc/ueivh, in which MaoRae, J., concurs.</p>

Civil action, tried at August Term, 1892, of Buncombe Superior Court, before Bynum, J. The plaintiff seeks to recover damages on account of injuries sustained by her in stepping into a hole in a sidewalk of defendant city, alleged to have resulted from the negligence of defendant city in its failure to keep the sidewalk in repair.

<p>Civil actiox, beard at March Term, 1893, of Buxcoiibk Superior Court, before Graves, J., who ordered the writ of mandamus to issue as prayed for in the complaint, from which judgment the defendant appealed.</p> <p>The facts necessary to an understanding of tlio decision of the Court are fully stated in the opinion of Chief -Justice Shepherd.</p>

Civil, ACTION, beard before Hoke, J., and a jury at Spring Term, 1892, of MadisoN Superior Court. The same case upon a former appeal is reported in 109 N. C., 703, and the facts pertinent to this appeal sufficiently appear in'the opinion of Associate Justice Bukwbll. One of the issues submitted to the jury by the Court was as follows: Was W. E. Watkins authorized to draw and accept said bill of exchange for the defendant company?

<p>üjvil ACTION, heard before Bynum, J., and a jury, at August Term, 1892, of Buncombe Superior Court.</p> <p>The facts are sufficiently stated in the opinion of Associate Justice Burwell.</p> <p>From a judgment for the plaintiff the defendant appealed.</p>

Civil actiox, tried before Bynum, J., and a jury, at December Term, 1892, of BuxeoMBE Superior Court. There was verdict and judgment for defendant, and plaintiff appealed. The essential facts are stated in the opinion of Associate Justice Clark.

(DEFENDANT’S APPEAL). Civil aotiox, tried before Merrimon, J., and a jury, at August Term, 1891, of BukooMBE Superior Court.

(PLAINTIFFS’ APPEAL). Civil aotioN for the recovery of damages for land condemned by the City of Asheville belonging to plaintiffs, tried at August Term, 1891, of Bukoombk Superior Court, before Merrimon, J., and a jury.

MOTION to vacate and set aside a judgment and verdict, heard at August Term, 1892, of BunooMBE Superior Court, before Bynum, J. The plaintiff seeks, in this action, to enforce a lien against the real property of the defendant IV. L. Walker, and also to recover a personal judgment against him and his co-defendants.

Civil ACTION for the recovery of money, heard before Graves, J., and a jury, at Spring Term, 1893, of the Superior Court of BUNCOMBE County. This action was originally begun, in the Court of a Justice of'the Peace, by Penniman & Co., plaintiffs, against the defendant, and W. R. Penniman was subsequentljr admitted as plaintiff by amendment.

<p>Civil actiox, tried before Hoke, J., and a jury, at March Term, 1892, of Buxcombe Superior Court.</p> <p>The complaint alleged that in 1871 one N. W. AVoodfin contracted to convey a certain tract of land near Asheville to the plaintiff for the sum of eight hundred dollars, which contract was duly registered; that at the time of such contract there was a mortgage on said land due by AATiodfin to R. M. Pearson, which was foreclosed in 1872 and con-vej^ed by the commissioner to R. M. Pearson, who subsequently died, leaving a last will and testament, appointing Richmond Pearson executor; that thereafter, in a suit pending in Buncombe Superior Court, originally brought by R. M. Pearson, and to which, after his death, his executors and heirs at law became parties, against the plaintiff, a decree was rendered directing the plaintiffs therein to make a deed for the land to this plaintiff, Carr, upon the payment of the balance due on the purchase-money; that during the pendency of the last mentioned action the executors and heirs at law of R. M. Pearson contracted to convey, and did afterwards convey, the said lands to the defendants, who are in possession of the lands and have received the rents and profits of and endamaged the lands by reason of their occupation, etc. The plaintiff Carr, in 1886, conveyed a four-tenths interest in the laud to C. A. Moore, and in 1889 conveyed the balance to J. S. Adams. Wherefore the plaintiffs pray for possession of the land, the execution of necessary convejmnces, and for an account of the rents and profits and an application of the same to the judgment against Carr.</p> <p>The defendants (other than Pearson, executor) in their answer formally admitted or denied the allegations of the complaint, among those denied being the allegation that a decree had been rendered in 1884 in the suit by Pearson, executor, against Carr, directing a conveyance of the land to Carr upon tlic payment by the latter of the balance of the purchase-money contracted to be paid to Woodfin. They also averred that whatever contracts or conveyances the plaintiffs Moore and Adams had with or from the plaintiff Carr they .wore made with a full knowledge of the legal and equitable rights of defendants.</p> <p>For a further defence they averred that they had in good faith and without any knowledge of plaintiffs’ alleged equities, bought the land from Richmond Pearson (who had acquired the rights of the other heirs at law of R. M. Pearson), entered into possession, which they have maintained openly and continuously for more than seven years under their deeds as color of title prior to the commencement of this' suit; that they have greatly improved the land, which has by such improvement and otherwise greatly enhanced in value; that the plaintiff Carr, if he ever had any equity by reason of his contract with Woodfin, had abandoned the same, etc.</p> <p>The defendant Richmond Pearson also filed an answer.</p> <p>When the case was called, and before the jury was impaneled or the pleadings were read, the plaintiffs took a nonsuit as to the defendant Richmond Pearson, executor, to which defendants excepted.</p> <p>The plaintiffs and defendants tendered certain issues, and it was agreed that the -Judge should determine the proper issues during the trial, hut such agreement was not to be taken as a waiver of defendants’ right to insist on the issues tendered nor to object to such as might be submitted.</p> <p>Plaintiffs introduced the various deeds and contracts and decrees referred to in their complaint. They also introduced the record of a case entitled “ Richmond Pearson, executor of R. M. Pearson, at al., heirs at law of R. M. Pearson, deceased, against S. M. Carr,” pending in the Superior Court of Buncombe County since its commencement by R. M. Pearson, as plaintiff, prior to Spring Term, 1874. It was admitted by both parties that Carr had made no tender of the money for which Richmond Pearson, executor, recovered judgment in this action; that no sale by the Clerk, acting as commissioner, had been made, and that the plaintiffs in said cause had made no deposit of title deed to S. M. Carr with the Clerk of the Superior Court as required by the decree. This action was begun by R. M. Pearson against S. M. Carr in 1874.</p> <p>• There was evidence tending to show that the land in question was covered by all of the foregoing contracts, deeds and wills, and the same described in the pleadings in said suits, which land was in controversy in said suits.</p> <p>The evidence showed that William Smith, J. E. Alexander and J. M. Wright went into the possession of the land pending the suit between R. M. Pearson and his representatives, after his death, against S. M. Carr, in which said land was in controversy, immediately after the same wras conveyed to them, and had remained in possession ever since, receiving the rents and profits therefrom.</p> <p>There was also evidence offered by the plaintiffs tending to show the rental value of the land since July, 1883, to which time the referee, Johnstone Jones, Esquire, ascertained the rents and damages, as appears by his report in the said case of R. M. Pearson against S. M. Carr, duly filed therein, modified by the Court, and damage done thereto every year since in removing wood, timber and fencing therefrom.</p> <p>There was also evidence introduced tending to show the yearly value of the said lands since July 1st, 1883, but there was no evidence to show that the land had been improved since that time. There was also evidence tending to show that the land had not been damaged by del end ants. The defendants sought to introduce in evidence a record in the case of S. M. Carr against Richmond Pearson, executor, for the purpose of showing that that case, then pending in the Superior Court of Buncombe County, was between the same parties as to this case, and for the same cause of action. The Court, upon inspection of the record, excluded it, upon objection of the plaintiffs, and defendants excepted.</p> <p>Thére were no special instructions prayed for by either side and no exception to any part of his Honor’s charge to the jury taken at the trial.</p> <p>The following are the issues (with the responses) submitted to the jury, and were not objected to until after verdict and on the motion for a new trial:</p> <p>1. "What amount is still due as shown by the judgments and decree of 1881 in Pearson v. Carr? Answer. $330, with interest from July, 1883.</p> <p>2. What is the annual value of the land from July, 1883? A. $51.50.</p> <p>3. What damage and waste has been done to land from July, 1883, and in what years was damage done, if it was done? A. Waste, $50; damage, $100 — $150; waste accrued between the years 1883 and 1889.</p> <p>4. Have defendants, or those, under whom they claim title believed bjr them to be good and without knowledge or actual notice of plaintiffs’ claim, made permanent valuable improvements on said property? A. No.</p> <p>5. How much is value of land enhanced by such improvements? A. None.</p> <p>6. At the time this action was commenced was there another action pending between the parties for same claim and demand? A. No.</p> <p>7. Has plaintiff Carr abandoned his claim to property? A. No.</p> <p>8. Are plaintiffs owners of land sued for? A. Yes.</p> <p>9. Are they entitled to the possession of the same? A. Yes.</p> <p>Defendants moved for a new trial for errors in Court: (1) in permitting nul. proa, as to Richmond Pearson, executor; (2) in holding the record offered by defendants incompetent and insufficient to show pendency of another action for same cause between same parties or privies; (3) for not submitting issues offered by defendants; (4) that the Court submitted the_issues that it did; (5) the Court erred in holding Pearson responsible for any rents and profits from the laud since July, 1883. (This was only done as against Pearson to an amount sufficient to satisfy the judgment).</p> <p>The Court overruled the motion, and the defendants excepted.</p> <p>There was judgment for the plaintiffs that thejr were the owners and entitled to the possession of the land and that they recover from defendants the sum of §122.50, being the difference between the total rents and profits and damages and the amount due by Carr on the purchase-money of the land and interest. The judgment also declared that the purchase-money due by Carr had been paid in full and that satisfaction of the judgment in favor of Pearson, executor, against Carr, rendered in 1884, should be entered. From the judgment the defendant appealed.</p>

Civil aotioN for the recovery of land, brought by R F. Smathers, administrator de bonis non, cum testamento annexo, of John Leatherwood, against W. L. Moody and V. P. Moody, and heard before Bynum, J., at Fall Term, 1892, of Haywood Superior Court on complaint and demurrer.

Civil action brought to recover the sum of $1,000, due by virtue of the contract contained in a policy of insurance, and heard at December Term, 1892, of the Superior Court of BuNCOMIie County, before Bynum, J. The reference in the opinion of Associate Justice Avery to the facts is sufficient for an understanding of the decision of the Court.

<p>Foreign Will — Probate— Witnessess — Authentication of Records — Comity Between States.</p> <p>1. Wlicre a will relating to land Avas admitted to probate in another State before the enactment of Revised Code, ch. 119, sec. 17, requiring- two of the subscribing witnesses to be actually examined, and the order of the Court admitting the same to probate recited that there were two attesting witnesses and that the Avill Avas duly proved by them, the presumption arises that each of them was examined and testified to everthing essential to show that the Avill Avas executed in accordance Avith the requirements of sections 1 and 6 of ch. 122, Revised statutes.</p> <p>2. When duly certified full faith and credit Avill be given to the records of a sister State by the Courts of this State, reserving, hoAverer, the right to determine what forms and ceremonies shall be essential to the ATalid transfer of title to land lying in the borders of this State.</p> <p>3. Neither comity nor principle precludes the Legislature of this State from prescribing regulations as to passing- upon authenticated records from another State preliminary to recording them.</p>

Civil actiox to recover land, tried before Hoke, J., and a jury, at Spring Term, 1892, of Superior Court of Madisox County. Summons issued in June, 1890. The proof was that of the three children, heirs of Moody, Charles was twenty-nine at trial, Minnie twenty-five and Roscoe twenty-three— the last having become twenty-one within three years before writ issued.

Civil aotioN for the recovery of three tracts of land * claimed by the plaintiffs and in possession of the defendants, tried before Bynum, J, and a jury, at Fall Term, 1892, of MacoN Superior Court. The defendants, admitting that they were in possession of the land, denied plaintiffs’ title, or that their (defendants’) possession was unlawful, and for further answer and defence, and by way of affirmative relief, alleged: 1.

PETITION of defendant to rehear. Eox former decision and the facts involved see case between same parties, 111 N. C., 422.

Civil action for libel, tried before Bryan, J., and a jury, at January Term, 1893, of Durham Superior Court, in consequence of the grant of a new trial made by this Court on the former appeal (reported in 109 N. C., 278). On the second trial there were numerous exceptions to the admission and rejection of testimony, to the charge of his Honor, refusal of instructions, etc., covering thirty-eight pages of printed matter.

<p>The appeal in this case having on motion been dismissed for failure to print the record, the appellant, after notice given, moved to re-instate the same.</p>

Civil ACTION, instituted by plaintiff against defendant in Superior Court of Cherokee County to Spring Term, 1892, of said Court, to redeem a mortgage on realty situated in said county, given by plaintiff to defendant to secure a loan of three hundred dollars. The matter was heard on application by plaintiff for restraining order prohibiting a sale of said realty by defendant under the mortgage.

<p>Civil ACTION, tried before Graves, J., and a jury, at Fall Term, 1892, of GastoN Superior Court.</p> <p>This action was to recover the difference between a debt which the plaintiff owed the defendant and the value of land conveyed to defendant under an agreement to adjust such difference. Plaintiff testified that being indebted to defendant ho conveyed by absolute deed his undivided interest in a tract of land to the defendant, with the understanding and agreement that the land was to be divided and assessed by two men to be selected by them, and if the arbitrators could not agree they were to choose another, and they should fix the value; that the land was divided between the defendant and the other tenants in common by arbitrators selected by defendant and his co-tenants; that defendant advised him, plaintiff, not to go to the arbitration; that after such division and assessment he went to defendant, who denied the contract, and said he did not owe plaintiff anything.</p> <p>Plaintiff then offered in evidence the report of the arbitrators, showing a valuation of the land conveyed by plaintiff to defendant at $500, which was admitted against the objection of defendant, who contended that it was incompetent for the reason that, as appeared by the submission to arbitration (which v^as read), the proceedings were had between the defendant and his co-tenants solely for a division of the land among themselves, and not to ascertain the value of the land for the purpose of a settlement between him and the plaintiff.</p> <p>The material part of the testimony of defendant was the submission to arbitration by defendant and his co-tenants, which was put in evidence, showing that they agreed to “abide by the decision of the following arbitrators, etc., in the lands of Lerry Hays, deceased, for partition and division, according to their several interests.”</p> <p>The following issue was submitted to the jury:</p> <p>“ Is the defendant indebted to the plaintiff, and if so, how much?”</p> <p>Defendant asked the following instruction:</p> <p>“ If the jury should believe that there was an agreement between the parties that the land should be valued after the partition by two men, one to be selected by each, and such valuation has not been made, and that no demand for such valuation has been made by the plaintiff, the plaintiff cannot recover in this action, and the answer to the issue should be, ‘Nothing.’”</p> <p>The Court gave this instruction, but added, “ Unless the jury shall find that plaintiff was prevented from making such demand for arbitration by the conduct of the defendant; if plaintiff demanded that defendant pay him what he owed him and defendant denied owing him anything, that would relieve plaintiff from demanding an arbitration.” And to the refusal of the Court to give the instruction as asked, and to his addition thereto, defendant excepted.</p> <p>The jury found the issue in favor of the plaintiff, and assessed his damages at $259.16.</p> <p>There was judgment for the plaintiff, and defendant appealed.</p>

<p>INDICTMENT for false pretense, tried at Pall Term, 1.892, of CraveN Superior Court, before Shuford, J.</p>

<p>INDICTMENT for larceny, tried before Shuford, at Fall Term, 1892, of Northampton Superior Court.</p> <p>The defendant was convicted, and appealed.</p>

<p>MotioN to re-instato appeal. (See State v. Jackson, supra, page 849).</p>

The defendant was tried and convicted at Fall Term, 1892, of NorthAJtPTON Superior Court, before Shuford, J., and a jury.

IndiotmeNT against the defendant, James Rhodes, for burning certain barns, the property of Mrs. Mary H. King, tried before Shuford, J., and a jury, at January Term, 1898, of FrankxiN Superior Court. Tliere was a verdict of guilty, and from the judgment thereon defendant was allowed to appeal in forma pauperis, hut in the affidavit omitted to aver that the application was made in good faith.

<p>Practice — Criminal Law — Certiorari—Former Acquittal.</p> <p>1. Certiorari in lieu of a lost appeal should be moved for before the appeal is regularly reached in its order on the docket for argument.</p> <p>2. Where, on appeal, a new trial was granted in a criminal case on the ground that the Judge below erred in submitting the case to the jury when there was not sufficient evidence to warrant it, defendant cannot on the new trial plead former acquittal, for he was convicted in the Court below, and the granting of a new trial was not an acquittal; nor can he plead former conviction, for it was set aside and a new trial granted.</p>

INDICTMENT for murder, tried before Bryan, J., and a jury, at January Term, 1893, of Durham Superior Court. The defendant, wlio, with two others, was charged with the murder of Josh Cannaday, obtained a severance and was tried alone and convicted, and appealed. There were many special instructions asked for by the defendant, and many exceptions to the refusal of some and to the charge of the Judge.

This was an INDICTMENT for failure to work on the public road, tried at the February Term, 1893, of the Superior Court of OhathaM County, before Bryan, J. The jury returned the following special verdict: The defendant was a depot agent at (roldston, Chatham county, in the employ of the Cape Fear & Yadkin Valley Railway Company, and was duly summoned by the overseer of the road in the township to work the same, to which he had been assigned by the Board of Supervisors.

Tills was au INdictMext for murder, tried before Winston, J., and a jury, at December Term, 1892, of RICHMOND ' ¡Superior Court.

INDICTMENT for murder, tried before Boykin, J., and a jury, at Fall Term, 1892, of Iredell Superior Court. The defendant was convicted, and appealed. The facts are stated in the opinion of Associate Justice Avery.

INDICTMENT, tried before II. B. Carter, Judge of the Criminal Court of Buncombe County, at July Term, 1892.

iNDicTMKNT for creating a common nuisance by causing unwholesome odors at a slaughter-pen, tried at April Term, 1892, of BuNooMbe Criminal Court, before Carter, J. The charge in the indictment concluded, “to the great damage and common nuisance of all good citizens of the State going, returning and passing through and along the said common road and public highway and being and residing near thereto.” The testimony was .as follows: E. W. Britt testified for the State that the…

INDICTMENT for embezzlement, heard before II. .13. Carter, Judge of the Criminal Court of BUNCOMBE County, at January’Term, 1893. From a judgment overruling the State’s demurrer to a plea to the jurisdiction the Solicitor appealed.

The defendant was indicted for the murder of DeAVitt Lovin and tried before Bynum, J., and a jury, at Fall Term, 1892, of the. Superior Court of Swain County.