Volume 113 — North Carolina Reports

Civil action to recover land, tried at Spring Term, 1893, of Gates Superior Court, before Bynum, J., and a jury. Upon the trial the defendants offered in evidence a deed conveying the locus, which was objected to by plaintiff on the grounds referred to in the opinion of Chief Justice Shepherd. The objection being sustained, the defendants appealed.

<p>Civil ACTION to recover possession of land sold under deed of trust, tried before Bynum, J., and a jury, at Spring Term, 1893, of PasquotaNK Superior Court.</p> <p>The facts are sufficiently stated in the opinion of Chief Justice SiiepheRD. From the judgment on a verdict for the plaintiff, defendants appealed.</p>

Civil ACTION for a writ of mandamus to compel the Board of Education of Gates County to admit plaintiff’s children to the school for white children of his district, tried before Bynum, J., and a jury, at Spring Term, 1893, of Gates Superior Court. The defendants refused to admit the children, upon the ground that the children were negroes and not entitled to be placed on the school list.

This was au action for possession of land, tried at the Spring Terra, 1893, of the Superior Court of Pamlico County before Bynum, J. The case agreed was substantially as follows: In consideration of the money received from the sale of land to Sarah Williams, mentioned in the deed, James Norcom, on 1st day of November, 1856, conveyed to J. S. Jones, trustee, the lands described in the complaint, and the recitals of which are to be taken as further facts agreed.

This was a motion to assess damages on an injunction bond, heard at the Spring Term, 1893, of the Superior Court of Chowan County. The following are the facts in the case: At Spring Term, 1890, of the Superior Court of Chowan County, there was a judgment dissolving the injunction. From this judgment there was an appeal by the plaintiff to the Supreme Court. Judgment was affirmed in the Supreme Court.

Civil action for the recovery of damages for a breach of warrant}'', tried before Hoke, J., and a jury, at Spring Term, 1893, of the Superior Court of Bertie County. The plaintiff introduced in evidence a deed from one Iiollo-man to J. B. Burden, also a deed from Joseph Burden to J. B. Ruffin, the defendant, dated February, 1871, conveying to the said Ruffin, his heirs and assigns forever, a portion of his (the grantor’s) timber on Ahoskie and Loosing swamps.

This was a civil ACTION, commenced in the Superior Court of Currituck County, to vacate and set aside, as null and void, a judgment rendered by a Justice of the Peace of said county in favor of the present defendants and against the plaintiff in this action.

This was a civil action, tried at May Term, 1893, of Beaufort Superior Court, before Bynum, J., upon an appeal by the plaintiff from a Justice of the Peace, before whom both the plaintiff and the defendant appeared in person and by attorney.

Civil action on open account, tried, on appeal from a Justice of the Peace, before Bynum, J., at Spring Term, 1893, of Hyde Superior Court. It appeared that in May, 1891, the defendant purchased of plaintiffs, on sixty days time, a bill of goods to the amount of $95.98, and in October, 1891, he purchased, on sixty days time, a second bill of goods to the amount of $210.67, on which was credited a payment of $68, leaving a balance of $142.67.

Civil action to obtain possession of personal property in order to sell tlie same to pay two certain mortgages, tried before Bynum, J., and a jury, at February Term, 1893, of Beaufort Superior Court. From the judgment upon a verdict for the defendant the plaintiff appealed. The pertinent facts are set out in the opinion of Associate Justice Burwell.

Civil actios, beard on complaint and demurrer before Bynum, J, at Spring Term, 1893, of Chowan Supérior Court. The plaintiff, as the owner of a lot of land in the town of Edenton, fronting on Edenton bay, sought by his action to compel the location by the town authorities, of the deep-water line in front of his property as provided by section 2751 of The Code.

Action of Claim and. Deliver}^, tried before Bynum, J., at Spring Term, 1893, of Beaueout Superior Court, upon case agreed, the facts set forth in which were substantially as follows : The plaintiffs, merchants doing business in Norfolk, Va., on the 17th December, 1892, on the order of the defendant Hodges, a merchant doing business in Washington, N. C„ sold and shipped to the latter certain articles of personal property, delivering the same to the Old Dominion Steamship…

This was a civil action, heard, upon appeal from a Justice of the Peace, at the May Term, 1893, of the Superior Court of Beaufort County, by Bynum, J. The defendant, through his attorney, Charles F. Warren, who had entered a special appearance only, moved to dismiss the plaintiff’s appeal, on the ground that the same should have been docketed at May Term, 1892, of the Superior Court, which was the next term after the action was tried before the Justice of the Peace, whereas…

This was a civil action, tried before Bynum, J., and a jury, at Spring Term, 1893, of Camden Superior Court.

Motion to attach defendants for contempt in disobeying an order of the Court of Equity of Hyde County, made in 1830, heard before Bynum, J., at chambers in Hyde County, June, 1892. The rule was discharged, and plaintiff Windley, guardian, appealed. The pertinent facts are set out in the opinion of Associate Justice Burweix.

Civil action to recover rent of a farm, heard before Bynum, J., and a jury, at Spring Term, 1893, of the Superior Court of Hyde County. The defendant set up a counter-claim for breach of contract on the part of the plaintiff to have certain ditches and canal on the land cleaned out.

<p>Civil ACTION heard, on appeal from Justice of the Peace,, before Bynum, J., and a jury, at Spring Term, 1893, of Wash-, ingtox Superior Court.</p> <p>There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.</p> <p>The facts are sufficiently stated in the opinion of Associate Justice Clark.</p>

<p>Civil ACTION to recover damages for trespass to realty, tried before Hoke, J, and a jury, at Special Term, 1892, of WASHINGTON County Superior Court.</p> <p>Plaintiff claimed under certain deeds introduced by him extending back to 1817, and connected himself with these. It was admitted title was out of State, being included in bounds of Grant No. 447, and also in the Ann C. Blount deeds, under both of which the defendant claims.</p> <p>No lines, marks or corners are given in plaintiff’s deeds, the description in said deeds being “ Canary, 107 acres, more or less”; Canary Island, on east side of Kendrick’s creek ” ; “ Canary tract, near head of Lee’s mill-pond, containing 100 acres, more or less.” Kendrick’s creek and Lee’s mill-pond proved to be same stream. Plaintiff showed that he and those under whom he claimed had been in the actual possession and continuous occupation of fourteen acres of said</p> <p> </p> <p>laud, having such amount under fence for the last fifty years, claiming to own same under his slid deeds, and had during such time exercised various acts of ownership and possession upon other parts of the locus in quo at different points from time to time, such as cutting wood, building roads, selling and moving timber, etc., claiming to own property under his said deeds.</p> <p>Defendant introduced Grant No. 447, dated November 20, 1788, admitted to cover locus in quo, and introduced a line of deeds to connect defendant with such patent.</p> <p>Oral testimony was also offered by both plaintiff and defendant, which is sufficiently adverted to in the opinion of Associate Justice Avery.</p> <p>The defendant made the following exceptions to rulings of Court on questions of evidence:</p> <p>1. On examination in chief, witness Abbott, the surveyor,, testifies for defendant: Had stated in answer to a question by defendant that plaintiff Lewis had stated to him on survey that a certain cypress, claimed to be and now marked as a corner, had been so marked by said plaintiff. On cross-examination said witness was allowed to state that said plaintiff in said conversation, and as a part of same statement, had said he had so marked said cypress near location of an old corner now down, and to perpetuate its place.</p> <p>Defendant’s objection overruled, and defendant excepted.</p> <p>2. A witness, Chesson, in testifying to the location of the Beach corner, had stated that it was pointed out to him by Jordan Volivay as a corner of Lewis’ Canary tract. Jordan Yolivay was admitted to be dead, and before litigation.</p> <p>Defendant objected to evidence because it had appeared that said declarant owned land adjacent to locus in quo. Overruled, and defendant excepts.</p> <p>Defendant requested Court to charge jury as follows:</p> <p>1. That plaintiff has had under fence about fourteen acres of the land claimed by him, and as to that land his rights are admitted. But plaintiff also insists that he is the owner of all the land within the boundaries claimed by him at the time of the alleged trespass—</p> <p>(1) Because the possession of the said fourteen acres extends by construction the possession of the plaintiff to the entire land within the boundaries named by him.</p> <p>(2) Because the various acts of ownership and possession stated by him and his witnesses are sufficient to give him title and possession to the same. To establish these positions the plaintiff must show that he claimed up to known and visible boundaries, and the Court charges you that the plaintiff has failed to show such known and visible boundaries as are required bj^ law, and you must answer the first issue, No.</p> <p>The Court, after stating nature of controversy and position of parties on matters excepted to, charged the jury as follows:</p> <p>“ Plaintiff shows no grant for land to him or those under whom he claims, but contends his title is perfected bjr continuous occupation under a deed and claim of right. When title out of State by grant, a title can be perfected b}r adverse possession for seven consecutive years under claim of right opeu and notorious, and under a deed having known and visible lines and boundaries.</p> <p>“ If jury believes evidence, plaintiff has been in possession of a house and field on said land under a deed since 1826, actuallj’’ occupying house and cultivating field, and was so-occupying under a deed describing land, in some of his deeds as Canary, and in some of his deeds as Canary Island. It is claimed by plaintiff that these terms in his deed as Canary and Canary Island give to his tract such definite description,' and the boundaries, as proved by him, so define and mark out a claim as to be a tract of known and visible lines and boundaries, and covers claim in solid red lines 1, 2, 3, 4, 5, 6, 7 and 8. Defendant contends that Canary and Canary Island was the smaller tract in red dotted limits; that the term itself meant a smaller tract of fourteen or fifteen acres, under plaintiff's fence; and that beyond the fence there are no marks or boundaries to indicate extent of plaintiff’s claim, nothing to warn the true owner that his limits were being occupied under an adverse claim, nor the extent of boundary of such claim.</p> <p>“The usual terms of the law and requirements are that the deed should describe the land and boundaries — boundaries that would indicate to the true owners its nature, location and extent of the land claimed under the deed, and warn such owner that his lands were'being trespassed upon. If the courses and natural boundaries of Canary were of such a character and sufficiently numerous so to define and point out the plaintiff's claim — sufficient to make the adverse claim and occupation open and notorious, open and visible to the true owners in the exercise of ordinary diligence — then the continuous occupation of the plaintiff or his father for seven continuous years, in such boundaries and under deed having such description, would perfect their title to the boundaries of the deed, and answer to issue should be Yes. And this would be true even if the lines running from corner to corner were not marked. But if Canary or Canary Island was the smaller tract, or amount under fence, or if the outer boundaries of plaintiff’s claim'were not open and visible, not sufficiently plain and numerous to point out and mark this tract, informing the true owner of its nature and extent, then the ownership of plaintiff would be confined to his actual occupation, under fence, and answer of jury should be only of portion under fence.”</p> <p>There was verdict for plaintiff, and defendant moved for new trial—</p> <p>(1) On his exceptions on questions of evidence above pointed out.</p> <p>(2) Refusal of Court to give instructions as requested by him.</p> <p>(3) To .the portion of charge as given and set out in case.</p> <p>Motion refused, and judgment on verdict for plaintiff, and defendant appealed.</p>

Civil action to recover damages for trespass to plaintiffs’ land, tried before Hoke, J., and a jury, at May Term, 1893, Superior Court of Bertie County. Answer denied plaintiffs’ title and denied the trespass.

<p>Removal of Cause from State Court — Alien Resident.</p> <p>A suit pending in a Court of this State between a citizen of this State and an alien resident in this State is not removable under the act of Congress relating to the removal of causes.</p>

Civil actoN heard on complaint and demurrer, before Bynvm, X, at August Term, 1893, of Northampton Superior Court. From the judgment sustaining the demurrer on the ground that there was a misjoinder of causes of action, the plaintiffs appealed.

Civil action, tried at November Term, 1892, of Halifax Superior Court, before Shvford, J., and a jury. The appellees, who are interpleaders in this action, claim the properly in dispute under a mortgage made to them on March'16, 1890, by the defendant S. J. Rawls to secure a debt due from him individually to them.

Civil ACTION, tried before Hoke, J., Edgecoiibe Superior Court, Spring Term, 1893, against the defendant Bourne, Sheriff, and his sureties, for breach of his official bond, and consequent damage to the plaintiff. It was in evidence that the plaintiff R. S. Wells instituted an action in the Superior Court of Wilson County against one Joshua Hines and wife for the recovery of certain personal property situated in the county of Edgecombe.

This was a civil actios, tried at November Term, 1892, of Halifax Superior Court, before Shuford, «/., and a jury. The following issues were submitted to the jury by the Court, without objection, as the issues between the parties: 1. Did the plaintiff agree to compiumise the debt sued on with the defendant Emma J. Emry for fifty ceiffs on the dollar, to be secured as alleged in the answer? 2.

Civil action, tried before Hoke, J., and a jury, at Spring Term, 1893, of Edgecombe Superior Court, to recover the amount of a sealed note for money. Defendants admitted liability to plaintiff for the balance due on the note, as to the defendant F. L. Pippen, administrator of J. II.

<p>Assignment for Benefit of Creditors — Partners—Reservation of Homestead and Personal Property Exemptions — Fraudulent Intent — Burden of Proof.</p> <p>1. The reservation of personal property and homestead exemptions allowed by law for both of the assignors in a deed of assignment for the benefit of creditors is neither conclusive nor presumptive evidence of a fraudulent purpose.</p> <p>2. One partner, with the consent of the other member of a partnership, may dispose of the company’s effects for his individual- use, and a creditor cannot interfere to prevent the application. Therefore, the reservation by assignors in a deed of assignment for the benefit of creditors of homestead and personal property exemptions out of the partnership effects did not raise any presumption, rebutable or otherwise, of a fraudulent purpose on the part of the assignors, but was a circumstance to be left to the jury.</p> <p>3. Where, in the trial of an action to set aside a deed of assignment as fraudulent, it was admitted that the assignors attempted to secure a larger amount of indebtedness to one of the preferred creditors than was actually due, this fact did not shift the burden of proof of fraudulent intent from the plaintiff to the defendant in such action; nor was such admitted fact such presumptive proof of fraud as to justify the Judge in declaring the deed void without the intervention of a jury, but it was some evidence of a fraudulent purpose and was properly submitted to the jury upon an issue relating to the fraudulent intent of the assignors.</p> <p>4. The designation of an irregular method of either setting apart the homestead or appraising personal property reserved by assignors in a deed of assignment does not vitiate the instrument or taint it with fraud. Therefore, where the assignors reserved from the operation of a deed of assignment the exemptions “allowed by law,” the use of the words “tobe set apart by the 2iarty of the second part” was neither conclusive nor presumptive evidence of fraud.</p>

Action on guardian bond of defendant Flythe, heard upon exceptions to referee’s report, at April Term, 1892, of NORTHAMPTON Superior Court. From the judgment both parties appealed. The facts are sufficiently stated by Associate Justice Mac-Rae in the consideration of the several exceptions filed by' the parties.

Defendants appealed. The plaintiff complained that in February, 1890, the defendants Long and wife made a deed of-trust to secure plaintiff for money loaned, conveying certain lands in Halifax and Warren Counties by the following description: “All the following described real estate, lying in the counties of Warren and Halifax and State of North Carolina, to-wit: All those tracts or parcels of land lying in one body in the counties of Warren and Halifax, of which the late…

Civil ACTION, heard before Hoke, J., at September Term, 3893, of Pitt Superior Court. The plaintiff sought á writ of mandamus to compel the Commissioners of Pitt County to accept his official bond and induct him into the office of Clerk of the Inferior Court of said county, which the complaint alleged had been established by the Justices of the Peace of the county. The defendants contended that the court had not been regularly constituted.

Civil ACTION, tried at April Term, 1893, of Franklin' Superior Court, before Shuford, J., upon three bonds for money alleged to be due the plaintiff, aggregating $1,067. There were various credits on t|ie bonds, but only one within ten years before suit brought, and that for twenty-five cents endorsed upon each. The defendant admitted the execution of the bonds by his intestate, but denied the credits and the dates thereof as alleged.

Civil ACTION, tried at February Term, 1893, of VaNce Superior Court, before Shvford, J., and a jury, upon appeal from Justice’s Court by E. L. Fleming, Jr., and Fanny Fleming, interpleading defendants.

Civil action, tried before Hoke, J., aud a jury, at Spring Term, 1893, of Warren Superior Court.

This was an action commenced by summons issued to September Term, 1892, of the Superior Court of Martin County, for the purpose of dissolving the defendant company, a corporation formed in 1880, under the Act of 1871-72, and for a receiver to take possession of the property of the defendant and wind up the affairs. At said term plaintiff filed his complaint, and ninety days were given to the defendant to file answer.

This was an appeal-by defendant from an order setting aside a report and account, made by Shvford, J., at March Term, 1893, of MaiítiN Superior Court. It will only be necessary to set out the consent decree in the cause made at chambers to reach a proper understanding of the questions involved.

Civil ACTION, tried before Shuford, J, and a jury, at May Term, 1893, of Vance Superior Court. The plaintiff sought to charge the defendant Burgwyn, as a partner of the Henderson Tobacco Company, for a debt due by the company to plaintiff. The issue submitted was as follows: “ Was the defendant W. II.

<p>Evidence — Municipal Records — Location of Boundary Lines— Streets — Pleading—Color of Title.</p> <p>1. Where it becomes material to prove the contents of a record of the proceedings of a municipal corporation, the party relying upon it may identify or offer the original or introduce a copy properly certified.</p> <p>2. Documents of a public nature and of public authority are generally admissible in evidence in proof of those matters, the remembrance of which they were called into existence to perpetuate, although their authenticity be not confirmed by the ordinary tests of truth— the obligation of an oath and the power of cross-examination of the parties on whose authority the truth of the document depends; therefore,</p> <p>3. The records made by the mayor and commissioners of a town empowered to locate, open or widen the public streets, naming and fixing the width of certain streets, and made ante litem motam, are competent though not conclusive evidence to locate the boundary line when the streets named or their points of intersection are called for in a deed upon which a party relies.</p> <p>4. It is competent for a defendant to prove possession by himself and those under whom he may claim, for seven years, in support of a general denial, in an answer, that the plaintiff is the owner, without specially pleading the statute.</p>

Civil ACTION tried before Shufo-rd, J., and a jury, at March Term, 1893, of Pitt Superior Court, for the recovery of certain crops and personal property described in the complaint. The facts necessary to an understanding of the decision of the Court are set out in the opinion of Associate Justice Burwell.

Civil action, tried before Brown, J., and a jury, at April Term, 1893, of the Superior Court of Wake. The plaintiff claimed that the sum of $1,023 was deposited by her with Andrew Jackson, the testator of the defendant Candis Rogers.

Civil action to annul and set aside a judgment confessed by the Pioneer Lumber Company iu favor of a director, heard on complaint and answer, and without a jury, before Brown, J., at January Term, 1893, of Wayne Superior Court.

Civil action, heard upon exceptions to the report of a referee at April Term, 1893, of WayNE Superior Court, before Broivn, J. EXCEPTIONS TO REPORT BY PLAINTIFFS. “The plaintiffs except to the report of the referee, filed at January Term, 1891, and for grounds of exception specify and say that said report is erroneous, for that— “ 1.

This was a civil action brought before a Justice of the Peace for certain specific articles of personal property, and tried on appeal at the April Terra, 1893, of the Superior Court of Wake County, before Brown, J. The plaintiff, who is the wife of the defendant, testified as follows: “The articles of personal property in controversy were given me by defendant before our marriage.

Petition to remove an action pending in Wake Superior Court to the Circuit Court of tire United States, heard by Brown, J., at February Term, 1893, of Wake Superior Court.

<p>Civil action, heard on demurrer to complaint before Brown, J., at April Term, 1893, of Wake Superior Court.</p> <p>The demurrer was sustained, and plaintiff's appealed.</p> <p>The purpose of the action and the facts are stated in the opinion of Chief Justice Shepherd.</p>

Civil ACTION for libel, tried ’before Shvford, J., and a jury, at September Term, 1893, of Wayne Superior Court.

Upon a petition or complaint of Eugene P. Albea, the defendant was summoned to appear before the Board of Railroad Commissioners to answer for an alleged violation of the tariff rate prescribed by the Commission for the transmission of telegraphic messages.

Civil action-, tried before Bryan, J., and a jury, at October Term, 1892, of Wake Superior Court. The issues were submitted to the jury, and the responses were as follows: “ 1. Did the plaintiff contract with defendant as alleged in the complaint?” Answer: “No.” “2. Were the plaintiff’s services for the first three months satisfactory to the defendant? ” Answer: “ They were at $75 per month.” “3.

This was a civil action to recover possession of a tract of land described in the complaint, tried at April Term, 1893, of the Superior Court of Wayne County, before Brown, J., and a jury. The plaintiff introduced in evidence the will of John Bar-field probated in 1849, under the fourth and fifth items of which he claimed the land in controversy.

This was a civil ACTION, tried before Connor, J., and a jury, at October Term, 1892, of DURHAM Superior Court. The plaintiff introduced the following evidence; W. H. Morris, plaintiff: “I held the mortgage of March 19, 1886. There was due in 1889 thirty dollars and interest. L. C. Herndon came and asked me to take J. R ITerndon out from under Mr. Farthing. I paid Mr. Farthing two hundred and thirty-five dollars and sixty-five cents.

<p>Civil aution, heard before Winston, J., at September Term, 1891, of Chatham Superior Court.</p> <p>From the judgment both parties appealed.</p>

Civil actioN, tried at September Term, 1893, of Chatham Superior Court, before Brown, J. The right of plaintiff to recover was admitted to depend, among other questions, upon the sufficiency of the probate of the will of Oliver Ditson, an exemplification of which was recorded in Chatham County, to pass the land in dispute.

Civil action, heard on complaint and demurrer before Brown, J., at October Term, 1893, of Durham Superior Court. The complaint was as follows: “1. That plaintiff is a religious corporation, located at Durham, N. C., and controlled by the Methodist Episcopal Church (South) of North Carolina. “ 2. That defendant is a corporation organized and doing business under the laws of the State of Connecticut. “3.

Action for the recovery of land, heard before Bryan, J., and a jury, at March Term, 1893, of Alam:amce Superior Court. Plaintiff appealed. The pertinent facts are set out in the opinion of Chief Justice Shepherd.

The action was begun March 29, 1893, for the recovery of the possession of a horse, which was admitted to be worth less than fifty dollars, thus giving jurisdiction to the Justice. This horse was the property of Isaac Wilson, who on December 3, 1886, conveyed it by chattel mortgage to John F. Woody, who assigned the note and mortgage to plaintiff on January 2, 1889.

Civil actioN, tried at July Term, 1893, of Granville Superior Court before Brotun, J. The following issues were framed : 1. Is the plaintiff the owner and entitled to the possession of the property described in the complaint? 2. What damage has the plaintiff sustained by the unlawful taking of the said property by defendants, or either of them?

This was a special proceeding, instituted before the Clerk -of Chatham Superior Court, by Thomas N. Hill and his infant children, owners of one-fourth of the tract of land in said county, known as “ LaGrange,” to have damages assessed for the petitioners against the defendant for the taking of their interest in the part of said land by defendant for right-of-way for its railroad, and heard at chambers in Durham on March 31, 1893, before Bryan, J. John Manning and wife and M.…

Civil action upon a physician’s account, tried before Whitalcer, J., and a jury, at March Term, 1892, of Alamance Superior Court. There was verdict for the plaintiff, and defendants appealed from the judgment thereon. The facts necessary to an understanding of the decision of the Court are stated in the opinion of Associate Justice Clark.

Civil ACTION, tried before Bryan, J., and a jury, at August Term, 1892, of PersoN Superior Court.

. Petition of defendants for writ of certiorari. The case was tried at April Term, 1893, of Franklin Superior Court, before Shvford, J., and a jury, and there are conflicting affidavits of counsel and others as to verbal notice of appeal and agreement of counsel as to extension of time for making statement of case on appeal.

<p>Appeal — Defective Record — Laches in Perfecting Record.</p> <p>Where a case was remanded from this Court at Spring Term, 1892, to the end that appellant might have a lost record supplied by proper proceedings in the Court below, which has not been done, and the record is as defective as when the order of remand was made, though three or four terms of the Superior Court in that county have transpired and no excuse is rendered for the laches, the case will be dismissed on motion of appelleeunder Rulel5 of the Supreme* Court.</p>

Civil action, tried at March Term, 1893, of Pender Superior Court, before Winston, J, and a jury, to foreclose a mortgage given by the defendants to the plaintiff. The jury returned a verdict that defendant was indebted to plaintiff in the sum of $200 and interest, and judgment was rendered ordering a sale of the land.

<p>Action of claim and delivery, heard on appeal from a Court of a Justice of the Peace, before Arm,field, J., at Fall Term, 1890, of Onslow Superior Court. From a judgment dismissing the action the plaintiff appealed.</p>

Civil actioN, tried at August Term, 1893, of DupliN Superior Court, before Bryan, J. The action was for the foreclosure of a mortgage made by F. M. Outlaw and wife to N. B. Outlaw, and by him assigned to the plaintiff Simeon Wooten. F. M. Outlaw', the mortgagor, is dead, and his wddow and heirs at law are the defendants.

<p>This was a motion to dismiss the appeal.</p>

This is a civil actior instituted to foreclose a mortgage, tried at August Term, 1893, of the Superior Court of Duplin County, before Bryan, J., a jury trial being waived. It was admitted that the defendant executed and delivered to the plaintiff on the 1st day of December, 1882, the note declared on, a copy of which is as follows: $874.45.

Civil ACTION to recover the amount of a note executed by the defendant to the. intestate of the plaintiff, tried before Bryan, J., and a jury, at August Term, 1893, of DupliN Superior Court,on appeal from a judgment of a Justice of the Peace. The plaintiff was a distributee of his intestate’s estate. On the trial plaintiff was allowed, under objection, to testify to the execution by the defendant of the note sued on.

This was a civil action for a money demand and foreclosure of a mortgage deed, tried before Bryan, J., and a jury, at the August Term, 1893, of Duplin Superior Court. The note declared on is in the following words and figures, viz.: “On or before the first day of November, 1886, I promise to pay J. Flavius Maxwell, or bearer, the sum of seventy-six dollars and thirty cents ($76.30), for value received of him, with interest at 8 per cent, per annum from date.

<p>Civil action, heard at June Term, 1893, of Durham Superior Court, before Bryan, J., the nature of which, and the facts connected therewith, sufficiently appear in the opinion of Associate Justice Clark.</p> <p>Appeal by the National Exchange Bank, of 'Dallas, et al.</p>

<p>Specific Performance — Breach of Contract — Issue for Jury.</p> <p>1. On the trial of an action for specific performance of a contract to purchase land, it appeared that the land had been sold, pending the action, under prior incumbrance, and the sale confirmed by order of Court, with consent of all parties, and that the complaint had been amended so as to claim damages for an alleged breach of contract by defendant to purchase. The defendant moved in this Court to dismiss the action on the ground that the plaintiff did nob have and could not make title at the time of the trial, and also because no contract in writing between defendant and plaintiff had been shown: Held, that the motion to dismiss the action cannot be allowed, because (1) it is not now an action for specific performance, and (2) the defendant cannot avail itself of section 683 of The Code, unless it had been specifically pleaded.</p> <p>2. Where, on the trial of an action for specific performance to purchase land, the owner alleged an agreement by plaintiff to take a certain amount of stock in the defendant corporation, and to convey the land clear of incumbrance by a specified day, and his failure so to do, by reason whereof the defendant was unable to make a sale and distribution of lots into which the land had been divided: Held, that it was error in the Court below to refuse to submit an issue framed to ascertain whether such sale and distribution of lots had been prevented by the failure of plaintiff to remove the incum-brance and take the stock.</p>

Petition for partition, transferred, after issue joined before the Clerk, to the Superior Court, and heard before Bryan, J., at August Term,'1893, of Duplin Superior Court, upon a case agreed, as follows: “1.

This was a civil ACTION for the recovery of real estate, tried before Winston, J., and a jury, at February Term, 1892, of SampsoN Superior Court. Both plaintiff and defendant claim title to the locus in quo from one James S. Boone. The plaintiff offered a deed of mortgage dated 20th September, 1876, duly registered, from said Boone and wife to M. E. Parker, wife of J. P. Parker.

Civil action, heard on demurrer to the complaint, before Whitaker, I, at May Term, 1893, of ÁNSON Superior Court. The demurrer was sustained, and plaintiffs appealed. The facts are succinctly stated in the opinion of Associate Justice Burwell.

<p>Civil ACTION tried before Connor, J, and a jury, at August Terra,.1893, of Mooeb Superior Court.</p> <p>Plaintiffs sought to have set aside and cancelled a deed from Alexander Robinson, their ancestor, to the defendant J. L. Currie, the material parts of the complaint being as follows:</p> <p>“ 1. That on or about the 1st day of May, 1886, one Alexander Robinson sold and conveyed to James L. Currie a parcel of land in Moore County, containing eighty acres, part of two hundred acres, adjoining the lands of James L. Currie, described in said deed aforesaid, for the recited consideration of five hundred dollars ($500), and afterwards, without the knowledge or consent of said Alexander Robinson, and after said deed was delivered, and without any consideration, the said James L. Currie fraudulently inserted in said deed the description, courses and boundaries of another tract of land belonging to said Alexander Robinson, containing one hundred and fifty acres, on Drowning Creek in Moore County, purchased by said Robinson from-McKimmon, known as the Sandy Robinson place, adjoining the lands of James L. Currie, John. M. Graham, Stephen Bennett and others, described in said deed from Alexander Robinson to James L. Currie.</p> <p>“ 2. That the consideration recited in said deed is greatly less than the value of said land, the 150-acre tract alone being worth $1,500.</p> <p>“ 3. That at the time of the execution of said deed said Alexander Robinson was not of sufficient mental capacity to execute a deed, -nor had he sufficient mental capacity to understand the nature of a contract, and his signature to said deed was obtained by the defendant James L. Currie by undue persuasion and false representations as to the contents and nature of said deed, representing that it embraced only the eighty acres aforesaid.</p> <p>“ 4. That the defendant James L. Carrie was the friend and confidential adviser of said Alexander Robinson for many years before his death, and said Robinson had and reposed unbounded confidence in said Currie in all business transactions and relations, and was easily influenced by said Cur-rie in the most important matters, and that said Currie took advantage of these circumstances and existing state of facts to procure said deed.</p> <p>“ 5. That as plaintiffs believe, said Currie has never paid the consideration price expressed in said deed for said eighty acres of land.”</p> <p>The answer of James L. Currie denied the material allegations in the complaint.</p> <p>The defendant moved that the plaintiffs be required to elect between the inconsistent allegations in the complaint, on the ground that it could not be true that the defendant obtained the deed by fraud and undue influence as to the one hundred and fifty acres, when the one hundred and fifty acres was not, as alleged, described in the deed when it was executed. Motion refused, and defendant excepted.</p> <p>The suit was prosecuted against James L. Currie only, his co-defendant having died since the commencement of this action.</p> <p>The following issues were submitted to the jury, to both of which the jury responded “Yes.”</p> <p>“1. Did the defendant procure the deed from Alexander Robinson by undue influence or false representation as to the 150-acre tract?</p> <p>“2. Did the defendant, after the execution of the deed, fraudulently and without the knowledge and consent of Alexander Robinson, insert in said deed the 150-acre tract?” • ■</p> <p>After the verdict was rendered the defendant moved to set aside the same, on the ground that the issues and the answers thereto were inconsistent and contradictory.</p> <p>Whereupon his Honor made the following order, to-wit:</p> <p>“ It appearing to the Court that the verdict of the jury upon the issues is contradictory and inconsistent, the same is for that reason set aside and a new trial awarded.”</p> <p>To which the plaintiffs excepted, and appealed.</p>

<p>Certiorari — Omissions from Case on Appeal.</p> <p>A case.on appeal settled by tlie trial Judge, imports absolute verity, and this Court will not certainly, in the first instance, direct a certio-rari to be issued to supply evidence alleged to have been omitted when it does not appear that the Judge below has- intimated that he will make the correction if the case is presented to him again for the purpose.</p>

<p>Motion to Set Aside Fraudulent Mortgage — Judgment Creditors— Evidence — Amendment of Pleading on the Trial.</p> <p>1. In an action to foreclose a mortgage, judgment creditors of the mortgagor became parties defendant and attacked the mortgage as fraudulent. An issue submitted by the Judge confined the inquiry as to the fraud to the knowledge of the mortgagee, while one tendered by the plaintiff and refused extended the inquiry to his participation in as well as knowledge of the fraud. In response to another issue the jury found that the debt alleged to be due by the mortgagor to the mortgagee was not bona fide: Held, that such finding of the jury renders immaterial an inquiry as to whether the mortgage would have been vitiated simply by notice of fraud on the part of the mortgagor fixed upon the mortgagee.</p> <p>2. Where, in an action to foreclose a mortgage, judgment creditors of the mortgagor became parties defendant and filed an answer, in the nature of a complaint, setting out their judgments and asking that the mortgage be set aside as fraudulent, the mortgagor made no reply, but plaintiff excepted to the evidence offered to prove such indebtedness: Held, that the question of the indebtedness of the mortgagor to the judgment creditors was a matter between them, and did not concern the mortgagee, especially where the jury found that his alleged debt was not bona fide and that the mortgage was fraudulent.</p> <p>3. On an issue as to the bona fides of a mortgage given to secure an alleged pre-existing indebtedness, the tax lists for several years in the county and township in which mortgagee resided were competent to be submitted, not as absolute and convincing evidence, but as some evidence that the mortgagee had no solvent credits.</p> <p>4. It is within the discretion of a trial Judge to permit an amendment of the pleadings on the trial when such amendment does not change the character of the action.</p> <p>5. In the trial of an issue relating to the bona fides of a conveyance, it was proper for the trial Judge to instruct the jury that the law looks with suspicion upon a transaction whereby one indebted to others conveys his property, or a part of it, to a brother-in-law to secure an alleged pre-existing indebtedness, and that it was the duty of the jury to scrutinize the matter closely in considering its validity.</p>

The plaintiff recovered judgment against the defendant for $150 with interest, before a Justice of the Peace, from which the defendant appealed to the Superior Court.

<p>Bank Dealings — Partnership Ooerdroft — Partner’s Individual Account — Set-off—Counter claim.</p> <p>1. The right of set-off only exists between the same parties and in the same right,</p> <p>2. A bank has no lien on the deposit of a partner for a balance due from the partnership; therefore,</p> <p>3. Although a barik may recover from any partner the overdraft of the partnership in an independent action, or may plead it as a counterclaim in a suit by such partner to recover his individual deposit, yet the bank may not charge up such overdraft against the partner’s individual account.'</p>

This action was brought by the executor of John B. Doub, deceased, for a construction of the will, the devisees and legatees (who were also the heirs at law and next of kin) of the testator, and the heirs at law and next of kin of Minerva S. Doub, the deceased widow of the testator, being made parties defendant. The disposing clauses of the will are set out in the opinion of Associate Justice Burwell.

Civil ACTION, tried at Spring Term, 1893, of Davie Superior Court, before Boylcin, J. Upon the intimation of the Judge that the evidence was not sufficient to rebut the bar of the statute of limitations, the plaintiff' submitted to a nonsuit and appealed.

<p>This action was commenced by J. J. Jordan and wife Mary E. Jordan, mortgagees in a mortgage given by H. McD. Spiers to secure a debt due said J. J. Jordan, to recover possession of the mortgaged premises, and for dam-, ages for the detention thereof, and for a foreclosure of said mortgage. The defendant filed his undertaking, found on the record, with Sampson Rea as surety, and answered the complaint.</p> <p>Shortly after the beginning of the action J. J. Jordan died intestate, and P. B Picotand John E. Vann were duly qualified as his administrators, and were made parties plaintiff in this action.</p> <p>At Pall Term, 1890, judgment was entered in said action in favor of plaintiffs for possession of said land, and for a foreclosure of said mortgage, as appears from the record, and the case was continued to try the issue of damages. Pending this continuance, and on the 31st day of January, 1891, the plaintiff P. B. Picot, one of the administrators of the said J. J. Jordan, entered into the following agreement with the defendant PI. McD. Spiers, to-wit:</p> <p>“ Received this 31st day of January, 1891, of II. McD. Spiers the sum of $100, it being in part payment of a compromise of the suit now pending in Hertford County Superior Court, entitled Mary E. Jordan and P. B. Picot and John E. Vann, administrators of J. J. Jordan, against H. McD. Spiers; and the said suit is compromised on the following terms and conditions, viz.: Said Spiers is to pay all costs of said action at the time that a nonsuit is entered by said Picot and Vann, administrators. $100 cash, and $137.50 to be paid on or before the 19th day of October, 1891, with interest from this date at 8 per cent. It is specially understood and agreed by parties hereto that if said Spiers shall make the deferred payments at the time named, with the interest thereon accrued, said Picot and Vann, administrators, shall enter a nonsuit in said pending action, at Fall Term, 1891, of said Superior Court; but if said Spiers shall fail to make said deferred payment, with interest as aforesaid, at the time mentioned, said Picot and Vann, administrators, may proceed with said suit as they may be advised, and the $100 paid this day by said Spiers, shall, in the event that judgment is taken against him in said action, be deducted from said judgment, that is to say that the $100 shall be credited on said judgment. (Signed) Picot and VaNN, Adm’rs.</p> <p>H. McD. Spiers.</p> <p>This January 31, 1891.”</p> <p>That thereafter, during the interval between the Spring and Fall Terms, 1891, of said Court, P. B. Picot died, leaving his co-administrator, John E. Vann, surviving him.</p> <p>That said contract was written and signed “ Picot and Vann, Adm’rs,” without the knowledge or consent of said John E. Vann.</p> <p>At Spring Term, 1893, of said Court, this action was called for trial before his Honor Bynum, J., and a jury. The verdict was in favor of plaintiffs. The plaintiffs moved for judgment thereon against defendant and Sampson Rea, the surety on defendants’ undertaking.</p> <p>Rea answered said motion, and alleged his discharge, and setup said compromise agreement and brought out the above facts in reference thereto, and asked that the plaintiffs’ motion as to him be denied.</p> <p>The Court ruled that said Rea was not discharged, and granted the judgment found in the record. Said Rea excepted, and appealed.</p>

The opinion of this Court in the appeal heard at February Term, 1893 (112 N. C., p. 508), having been certified to the Court below, the defendants, at Fall Term, 1893, of .Surry Superior Court, before Winston, J., moved for judgment, which was refused, his Honor being of the opinion that the certificate of the Supreme Court was not a final judgment, but only an order for a new trial. Defendants thereupon appealed.

Civil action to have certain agreements (one of which is set out in the opinion of Associate Justice Clark) declared a lien upon the separate estate, real and personal, of the feme defendant, in Newbern, N. C. The complaint, after alleging the indebtedness and the agreements (which were signed by the feme defendant, under seal, with the written assent of her husband, and duly probated as to both, with the privy examination of the wife, and duly registered), and further…

Action tried at Spring Term, 1893, of Wilicics Superior Court, before Boyhin, J., and a jury. Plaintiff’s action was for an alleged false return made by defendant Sheriff for the penalty of $500, prescribed by statute.

This was an appeal, heard before Graves, J, at Fall Term of the Superior Court of Wilkes County, 1891, from the decision of McNeil, Clerk, made in the above entitled cause upon notice to Nancy Hall, executrix of R. D. Hall, deceased, for the purpose of reviving a judgment rendered at Fall Term, 1885, for the sum of $66.15, for plaintiff’s and other costs, a part of which was for witnesses’ attendances, taxed in the case, an ordinary bill of cost arising in a'case at law.

<p>Practice — Pauper Appeal, Time of Taking — Evidence.</p> <p>1. Under the statute (chapter 161, Acts of 1889) it is not necessary that there should be at the time of the trial an intimation by the dissatisfied party that he desires to appeal, it being a sufficient indica- • tion of his desire at the time of the trial if he fulfils the requirements of the statute within the time prescribed by law.</p> <p>2. In the trial of an action to recover the penalty for a usurious transaction, a witness offered by the defendant was allowed, under objection, to testify that plaintiff had the reputation of suing for usury: Held, that the testimony was incompetent, because (1) it was irrelevant, and (2) as impeaching testimony, it should not have been allowed, for even if it were true, the plaintiff: had a right, under the statute, to “sue for usury,” if he had paid usurious interest for the loan of money.</p>

<p>• Civil actiox, tried at August Term, 1893, of Fobsyth Superior Court, before Winston, J.</p> <p>The plaintiff alleged—</p> <p>1. That defendant is a corporation, duly organized and doing business in North Carolina.</p> <p>2. That on or about the __ day of_, 1891, the plaintiff being in need of money applied to the local agent of the defendant for a loan of five thousand dollars; that the said agent promised and agreed with the plaintiff verbally, and by printed representations furnished to the plaintiff by the company, that if the plaintiff would subscribe for fifty shares of stock in the defendant corporation and pay in advance the sum of $260 and certain counsel fees amounting to $20, making in all $280, and would furnish real estate security, as required by the corporation, the company would loan to the plaintiff said $5,000.</p> <p>3. That plaintiff had no money to invest in stock in the company, but relying on said representations and promise, paid the aforesaid sum, aggregating $280, and applied for the loan of the money, complying with all conditions of the corporation, and offering real estate security, but the defendant corporation, in violation of its contract, refused to make such loan to plaintiff, although the defendant knew that the loan of money was the only inducement to the payment of the money by plaintiff, and the taking of the stock.</p> <p>4. That after the refusal of the defendant to furnish the money as promised, plaintiff returned the stock to the company and demanded the return of his money, which was refused.</p> <p>Plaintiff demanded judgment for $280, with interest until paid, etc.</p> <p>The defendant, answering the complaint, said:</p> <p>That the second paragraph of the complaint is not true.</p> <p>That the third paragraph is not true.</p> <p>The defendant has no knowledge of the fourth, and demands proof.</p> <p>As a second defence the defendants say that they have never promised to loan money to the plaintiff through their literature or printed representations, except what appears in such printed matter, and that the local agent has no authority to make contracts for this company other than appears in the prospectus containing contract and by-laws offtbe company. That the company has loaned thousands of dollars in the city, but always upon approved security and applications satisfactory to the board of directors of the company. Defendants demand judgment that the complaint be dismissed, and they recover their costs, etc.</p> <p>The following issues were submitted and responded to by the jury:</p> <p>1. Did the plaintiff enter into a contract with the defendant company for the sole purpose of borrowing money? “Yes.”</p> <p>2. Did the plaintiff become a member of the defendant association? “No.”</p> <p>3. What sum, if any, did the plaintiff pay the defendant under and by virtue of such contract? “$265.”</p> <p>4. Is the defendant indebted to the plaintiff, and if so, in what sum? “Yes, the sum of $265, with six per cent, interest from date of payment.”</p> <p>From verdict and judgment in favor of plaintiff, defendant appealed.</p>

This was a civil action, tried before Winston, J., and a jury, at the August Term, 1893, of Forsyth Superior Court. The action was to set aside two certain deeds set out therein from W. H. Wheeler to Ann J. Wheeler and W. H. Wheeler to E. H. Jennings. No. 1.

His Honor Winston, J., before when the case was heard at Fall Term, 1892, of BladeN ¡Superior Court, rendered an elaborate and well considered opinion, and in conclusion adjudged as follows: “That the Commissioners of Bladen did not legally divide and appropriate the poll-tax for the years mentioned.

<p>Practice — Motion to Docket and Dismiss Appeal.</p> <p>A motion to docket and dismiss an appeal'made at the first term af textile trial below, but after the call of the docket of the district to which the case belongs, will not be entertained when the appellant brings up and dockets bis transcript at that term.</p>

Proceeding for the settlement of a deceased lunatic’s estate by his guardian, instituted before the Clerk of Cumberland Superior Court by the guardian against the daughter of the lunatic, to which the administrator of the lunatic afterwards made himself a party, and heard on report of referee at January Term, 1893, of CUMBERLAND Superior Court, before Winston, J., from whose judgment against him the plaintiff appealed.

This was a civil action, brought by the plaintiff, to have the defendants declared trustees, for the benefit of plaintiff, of a tract of land in McDowell County, N. C., known as the Duncan lands, brought to the Superior Court of McDowell County and removed for trial to Rutherford County, and tried at Spring Term, 1893, of Ruthekfoud Superior Court, before Armfield, J., and a jury.

Action of claim and delivery to recover certain personal property mortgaged to plaintiff by defendant, heard at May Term, 1893, of Forsyth Superior Court, before Boykin, J. The plaintiff, in deference to the opinion of his Honor that the action was premature, submitted to a nonsuit and appealed. The facts necessary to an understanding of the decision of the Court are sufficiently adverted to in the opinion of Associate Justice Clark.

Civil ACTION, tried before Mclver, J., at Spring Term, 1893, of Ashe Superior Court.

<p>Action for Recovery of Land — Estoppel—Lease to One in Possession of Land — Practice.</p> <p>1. The doctrine of estoppel which prevents a tenant from denying his landlord’s title to the leased premises, applies not only to those cases where the landlord himself having possession, delivers np that possession to the tenant, but also to those where one, being already in possession of land, agrees to assume the relation of tenant towards another who asserts title thereto, provided such agreement is not induced by fraud or mistake.</p> <p>2. Inasmuch as the doctrine of estoppel, as applicable to tenant in possession, goes no further than to require the tenant to first surrender his possession before denying title of his landlord, it is recommended as important in cases where recovery of land is had under this doctrine, that the record should show the ground of the recovery, so that the j udgment will not work another and more effective estoppel on the defendant.</p>

This was a civil action, tried at Fall Term, 1893, of the Superior Court of McDowell County, before Boykin, J., and a jury. A. T. Curtis was introduced as a witness in his own behalf, and testified as follows: “ Had contract with John L. Martin, treasurer of defendant, and resident manager of the company. He had the general management of the defendant’s business in this State. He told me he was manager; Mr. Claywell so told me.

This was a civil ACTION to recover possession of land, tried upon a single issue, before McCorHe, J., and a jury, at the August Term, 1890, of the Superior Court of Surry County. The plaintiff claimed under a Sheriff’s deed, made in pursuance of a sale of the locus in quo, made by S. H. Taylor, Sheriff of Surry County, to satisfy an execution in his hands against the property of defendant Rufus Roberts.

This was a proceeding in arrest and bail, in which it was sought to hold the Sheriff of Stanly County liable as special bail, heard before Winston, J, at Spring Term, 1893, of StaNly Superior Court. Neither the bail bond, on its face, nor the justification of the surety showed that the latter was a resident and freeholder within the State.

This was a motion to attach defendant for contempt, heard at Spring Term, 1893, of Caldwell Superior Court, before Mclver, J. From the judgment ordering him to be imprisoned for thirty days, the defendant appealed. The fads are stated in the opinion of Associate Justice Clark.

This was a special proceeding, begun before the Clerk of the Superior Court of Yadkin County and transferred upon issues joined and heard… Held: controlled and managed by him as-in his judgment he may deem best for the sole and separate use and behoof of my daughter, Martha J. Glenn, so long as she remains unmarried, or so long as she may live, and if she should die without issue, then, her share to be equally divided between all my children.” The Court held that Martha J.…

This was a civil actioN, tried before Arm-field, J., and a jury, at February Term, 1893, of MecicleNburg Superior Court. The action was brought to recover the sum of $160, alleged to be due by the defendant to the plaintiff, who was a schoolteacher, for tuition. Plaintiff, as a witness in his own behalf, testified as follows “I was teaching school in Charlotte; and b9egan teaching in the year 1891. The defendant signed the paper shown me; I saw him sign it.

Civil actioN, tried at Spring Term, 1893, of WaereN Superior Court, before Iioke, J. Tiie plaintiffs claim the proceeds of certain crops, and the only question involved is the construction of a contract, a copy of which is as follows: ‘•'Contract made December 30, 1887, by and between B. I. Egerton, of Macon, Warren County, N. C., of the first part, and Major Williams (a colored man), of Warren County, N. C., of the second part— “ Witnesseth, that said B. I. Egerton has…

Civil action, tried at Fall Term, 1893, of AllegiiaNy Superior Court, before Winston, J. Defendant appealed.

Action for partition of lands, commenced before the Clerk and transferred to the Superior Court of Catawba County, and heard before Boykin, J., and a jury, at Fall Term, 1893, of said Court.

<p>Statute of Limitations — Practice—Pleading.</p> <p>1. The limitation for the commencement of actions prescribed by section 155 (9) is three years from the discovery of the mistake, and not from the date of the mistake.</p> <p>2. Under the present practice, a replication to the plea of the statute of limitations is necessary only when matter in avoidance is pleaded.</p> <p>3. Where, in an action brought to correct a mutual mistake in a settlement of .accounts, the defendant pleaded the statute of limitations, and it did not appear in the complaint that the mistake was discovered more than three years before suit brought, the plaintiff should have been permitted to prove, if he could, that such discovery was within three years before the commencement of the action.</p> <p>4. A plea that a cause of action did not “arise” within the time prescribed by the statute for the commencement of an action, while not strictly accurate, will be construed under the liberal system of pleading in force under section 260 of The Code, to mean that it did not “accrue” within that time.</p>

Civil action, tried at Fall Term, 1893, of McDowell Superior Court, before Boykin, J. A jury trial was waived, and the following facts were agreed upon: “That on the 29ih day of October, 1892, one J. A. McDonald, J. P., in McDowell County, rendered judgment in favor of the defendant in this case (the plaintiff in that) against C. J. Alston, the plaintiff in this case, who was defendant in that, for the sum of $139.

Motion to attach the defendant for contempt in wilfully disobeying a restraining order, heard before Boykin, J., at Fall Term, 1893, of McDowell Superior Court.

<p>Action for Possession of Land — Homestead—Sale of Reversion — Right of Possession — Adverse Possession — Statute of Limitations — Burden of Proof.</p> <p>1. The possession by a homesteader, or one claiming under him, of land which has been sold or held subject to the homestead right, does not become adverse so as to start the running of the statute of limitations until the purchaser’s right of action and entry accrues on the termination of the exemption.</p> <p>2. An action for the possession of land is conclusive as to title only where an issue involving title is raised and passed on by the jury; therefore,</p> <p>3. Where land was sold in 1868 under a judgment on an old debt, no homestead being previously allotted, and in an action for possession by the purchaser it was decided that the debtor was entitled to a homestead in the land, which he had had allotted to him after said sale, and which he occupied until he died: Held, (1) that the purchaser was precluded by such adjudication from demanding possession until the falling in of the exemption, and hence the statute of limitations did not begin to run against him until then; (2) that the debtor and those claiming under him were estopped from denying, as against the creditor and those claiming under him, that they occupied the land in dispute as a homestead, and not in their assertion of a title adverse to the creditor, so long as the homstead light subsisted.</p> <p>4. Where, in an action to recover possession of land, a homestead right is shown to have existed, the burden is on the plaintiff to show that it has terminated, not only by the death of the homesteader but also by the arrival at full age of his youngest child.</p>

<p>Attachment — Judgment—Garnishee.</p> <p>1. An attachment was levied on a debt alleged to be due from A to the defendant, which the latter averred had been assigned by him to B before the levy. • B asked to be made a party, in order that he might assert Ills right to the debt or fund. The Court refused to allow him to interplead unless he would give bond for costs, which he failed to do but took no exception to the ruling excluding him as a party. Upon the tidal there was a verdict for the plaintiff and a judgment thereon for his debt against the defendant, and an order condemning the fund in A’s hands to its satisfaction. A neither excepted nor appealed: Held, that B’s rights are not affected by the judgment, he not being a party to the action, and that he has no standing as appellant here; and further, that it does not concern the defendant, under the circumstances, whether the attached debt is applied as directed or not, that being a matter affecting only the interest of A, who has not appealed, and of B, who is not a party nor bound by the order.</p> <p>2. An affidavit upon which a warrant of attachment has issued, and which does not allege that the defendant has property in this State, is not defective an that account.</p>

Civil action, heard before Arm field, J., at August Term, 1893, of Buncombe Superior Court. The complaint was as follows:. “1. That the plaintiff is a corporation duly chartered and organized under the laws of North Carolina. “2. That heretofore the defendant Natt Atkinson made his promissory note, in writing, in words and figures as follows: “‘$1,284.

Action tried at August Term, 1893, of Buncombe Superior Court, before Armfield, J. The allegations of the complaint are as follows: “ 1.

Civil action, heard before Bryan, /., at September Term, 1893, of New HaNOVER Superior Court, upon an agreed statement of facts, which was substantially as follows: The plaintiffs, merchants doing business in Wilmington, on the 12th day of June, 1893, drew a sight draft on W. K. Proctor, of Durham, N. C., for $200.20, payable to W. L. Smith, cashier of the Bank of New Hanover, at Wilmington, and deposited the same for collection in said bank.

<p>Usurious Contract — Illegal and Void Contracts — Innocent Purchaser Before Maturity — Forfeiture of Usurious Interest.</p> <p>1. When a note is declared void by a statute it is void into whosesoever hands it may come; but when the statute merely declares it illegal, the note is good in the hands of an innocent holder.</p> <p>2. The purpose and effect of section 3836 of The Code, which provides that “the taking of a rate of interest greater than is allowed shall be deemed a forfeiture of the entire interest,” was to make void, ipso faeto, all'agreements for usurious interest; therefore,</p> <p>3. A note embracing usurious interest is void, as against the maker, in the hands of a purchaser before maturity for value and without notice, to the extent to which the contract is usurious.</p> <p>4. The remedy of the innocent holder, as to the interest, is against the payee who has endorsed the note to him, and not against the maker . who is the victim of an oppression denoixnced by the statute. The law will not lend its aid to enforce a contract which is “deemed ' forfeited” by the very fact of making it. If this were otherwise, the protection intended by the statute would be delusive and nugatory.</p>

This action was a creditor’s bill, which was referred, at Fall Term; 1892, of the Superior Court of Haywood County, by consent, to W. B. Ferguson, an attorney of the Court, as arbitrator.

Motion, made at March Term, 1893, of Buncombe Superior Court, before Graves, J., to confirm the sale of the lands described in the pleadings, made by D. C. Waddell, as commissioner, who reported the purchase by W. M. Cocke, Jr., at $3,000. The sale was confirmed and judgment rendered for $3,000 against Cocke, who, among other exceptions filed to the judgment thereon, objected' as follows: “ 3.

<p>Practice — Issues for the Jury — Discretion of Trial Judge— Defective Process, Amendment of — Blank Summons— Grant— Surveyor’s Plat — Evidence—Exceptions to Charge.</p> <p>1. The trial Judge has power in the exercise of a sound discretion to settle the issues for the jury, and such exercise is not reviewable in this Court, unless the record shows that the form of the issues was such as to preclude the complaining party from having presented to the jury some view of the law arising out of the evidence.</p> <p>2. Although a summons be informal in some respects, or even defective in failing to contain everything requisite under the statute, yet, if it bears internal evidence of its official origin and of the purpose for which it was issued, its informality and defects may be cured by amendment; but where it is not signed or does not bear a seal, or otherwise show its official character, it is nothing more than a blank, and a Judge has no authority to permit to be amended.</p> <p>3. The original plat oí the survey required to be attached to a grant of land, when issued by the State, is made a part of the grant for the purpose of indicating the shape and location of the boundary, and ■ is evidence, though not conclusive, to be submitted to the jury as to the true shape and location of the land.</p> <p>4. Only assignments of error made below and founded upon exceptions submitted in apt time will be considered in this Court.</p>

This was an action for the recovery of land, tried before Hoke, J., and a jury, at Spring Term, 1892, of Cherokee Superior Court. Plaintiff appealed. The case is sufficiently stated in the opinion.

This was an action on the part of the plaintiff for the recovery of the sum of $195, for purchase-money due and owing from the sale of a certain tract of land sold by the plaintiff, as trustee, to satisfy a certain note held by Mack Stadler & Co., of Cincinnati, Ohio, against S. D. Chambers and wife S. M. Chambers, heard before Graves, J., at_ Term of Buncombe Superior Court. ■ The following facts were submitted for the judgment of the Court by agreement of plaintiff and…

Civil ACTION for the recovery of land, commenced on the 3d day of August, 1891, and tried at Fall Term, 1893, of Burke Superior Court, before Boykin, J., and a jury. The plaintiff introduced a grant to Nancy A. Walker for the land described in the complaint, dated 5th June, 1884. There was evidence of possession under the grant only until the spring of 1885.

This was an action brought for the foreclosure of a mortgage given to plaintiff as collateral security by the defendant M. A. Wilkinson, before Armfield, J., at Spring Term, 1893, of LincolN Superior Court. The record, shows that this action was brought on the 20th day of June, 1891. It was in evidence that on the 5th day of January, 1888, the defendant L. A. H. Wilkinson executed a note to the plaintiff in the sum of $800, bearing interest after maturity, and tbatM.

<p>Execution Sale Without Allotting Homestead — Residence—Evidence— Color of Title — Adverse Possession — Ouster—Tenants in Comm on.</p> <p>1. A sale of land under execution on a judgment rendered against a resi-. dent of this State on a debt contracted since 1868 is void as to the defendant in the exection, unless a homestead was allotted him then, or unless he had a homestead already allotted in other lands.</p> <p>2. Hearsay testimony as to the residence of a person is inadmissible.</p> <p>3. Where it is shown that a person was once a resident of this State, the presumption is that he continues to be so, and the burden of proving a change of domicile is upon him who relies upon such change.-</p> <p>4. A void deed by a Sheriff- is not color of title.</p> <p>5. Where an occupant of land has entered and holds under title derived mediately or immediately through conveyances from a portion of the tenants in common, to whom the land had passed by descent or purchase, although professing to convey the whole interest in the land, a possession for less than twenty years will not raise the presumption that the co-tenant who did not join in the deed has been evicted, for one tenant in common cannot thus make the possession adverse to his co-tenant.</p> <p>6. Registration of a deed does not have the effect of an ouster.</p>

By consent, upon the appeal of the respondents, Morris Meyers and Charles A. Webb, administrators of Sarah Ellick Meyers, from the Clerk of the Superior Court, his Honor Arm-field, J., found the facts, substantially, as follows:. “That on the 1st day of October, 1893, Mrs. Sarah Ellick Meyers, of whom the respondent Morris Meyers was her husband, died in the city of Richmond, Va. Her domicile was in Asheville, Buncombe County, N. 0., and she had property in Buncombe County.

. This was an action brought to the February Term, 1893, of Craven Superior Court, in which plaintiff obtained a writ of attachment against the property of the defendant construction company, under section 347 of The Code, for injury to plaintiff’s pipes, which were laid in the streets of the city of Newbern, and for injury to and destruction of the gas of plaintiff, which escaped through the pipes so broken and injured.

Civil ActioN, commenced on 10th February, 1890, and tried at Spring Term, 1893, of Caldwell Superior Court, before Mclver, /., and a jury. In his complaint plaintiff alleges that he is entitled t > one-half of the net proceeds arising from the sale of certain-lands lying in Caldwell County, as the consideration for the execution of a deed to the defendant Louisa N. Bond for said lands, under an express contract made contemporaneously with the deed with Ií.

Civil ACTION, prosecuted -in forma pauperis by the plaintiff to recover damages for the wrongful act and default of defendant in causing the death of his intestate, tried in Wake Superior Court at February Term, 1893, before Brown, and a jury.

This was a civil action to recover the value of a certain horse alleged to have been negligently killed on defendant’s road, tried by Winston, J, and a jury, at Spring Term of Pender Court. The following issues were submitted to the jury— “ 1. Did the defendant, by its negligence in moving its cars and engine, kill the horse of the plaintiff? ” To which the jury responded, “ Yes.” “2.

This was a civil action, tried before Brown, J., and a jury, at April Term, 1893, of Wayne Superior Court The plaintiffs complained for damages for the non-fulfilment of a contract of affreightment between Goldsboro and Liverpool, alleging that the defendant agreed to transport five hundred bales of cotton for plaintiffs between those points at a rate of sixty-nine and a half cents per one hundred pounds and afterwards declined to do so, but charged eighty-nine and a half…

Civil action, by Natt Atkinson against the Asheville Street Railway Company, to set aside a certain assignment of a franchise and to restrain defendant company from operating under such franchise, heard before Bynum, J, at August Term, 1892, of BüNCOmbe Superior Court. From a judgment dismissing the action on the ground that the complaint did not state facls sufficient to constitute a cause of action, the defendant appealed. The complaint was as follows: 1.

Civil action, for injuries to live stock while beiDg transported on defendant company’s cars, tried before Shvford, J., and a jury, at February Term, 1893, of Wilson Superior Court. It appeared from the evidence that a car-load of horses and mules were shipped from Richmond, Va., to the plaintiff at Wilson, N. C., and that plaintiff did not accompany the stock, but met them at the depot in Wilson. His Honor submitted the following issues to the jury, to-wit: “1.

Civil ACTION, tried on issues joined before the Clerk, before Mclver, J., and a jury, at August Term, 1893, of Union Superior Court. The facts were as follows: 1. That C. N. Simpson owned the whole of lot No. 42 when the defendant railroad company entered upon and completed its road across the same. 2.

The complaint alleged that the plaiutiff’s intestate was a brakeman on defendant’s freight train, and injured by the negligence of defendant in consequence of the defective condition of a locomotive, of which condition the intestate had no notice. The defendant denied the charge of negligence, and averred that intestate knew of the existence of the causes which are alleged to have produced the injury complained of.

Civil actiok for damages to plaintiff’s property resulting from the construction of a railroad on a street in front thereof, tried before Boykin, J., and a jury, at August Term of Forsyth Superior Court. There was judgment for defendant, and plaintiff appealed.

This was an indictment tried by Shvford, J., and a jury, at May Term, 1893, of Vance Superior Court. Held: and recalled the jury twice to tell them, that it made no difference whether the jailer entrusted the keys of the cells to James Green or not, but the question for them was whether he had used due care in employing a trustworthy assistant. -He had instructed them that the jailer had a right to employ an assistant and to entrust him…

Indictment for burglary, tiled at June Term, 1893, of Wilson Superior Court, before Shvford, J., and a jury. There was a verdict of guilty, and from the judgment thereon defendant appealed. The facls necessary to an understanding of the decision are stated in the opinion of Associate Justice Bukwjsll.

Indictment for failure to pay a license tax imposed by an ordinance of the city of Goldsboro, tried before Brown, J., at April Term, 1893, of Wayne Superior Court. The jury found a special verdict as follows: “1. That the city of Goldsboro, under its charter, by its regularly constituted authorities, on the 1st day of June, 1892, adopted the following ordinance: . Ordinance 12. “‘ Be it ordained by the Aldermen of the city of Goldsboro: “ ‘Section 1.

Indictment under chapter 29, Acts of 1891, tried at August Term, 1893, of PersoN Superior Court, before Brown, J. The jury rendered the following special verdict: “The defendant and one Dave Clayton, who is indicted in this bill but not on trial, at the date mentioned, and in this county, were playing at a game called ten-pins, at which money was bet by the defendants, to-wit, $1 with each other. The said game is played on an alley about sixty feet long and four feet wide.

Indictment for an affray with a deadly weapon and serious injury, tried before Bryan, J, and a jury, at August Term, 1893, of DupliN Superior Court. The facts are sufficiently stated in the opinion of Associate Justice Clark. From the judgment on a verdict of “guilty” the defendant Albertson appealed.

This was a CRIMINAL action, tried before Whitaker, J., and a jury, at March Term, 1893, of Moore Superior Court. The action was commenced in a Justice’s Court for an assault and battery upon one Anna B. Black, and the defendant was convicted, and appealed. The evidence disclosed the fact that defendant was a schoolteacher and Anna B. Black was one of his pupils, and that the defendant whipped the said Anna B. Black.

Indictment for perjury, tried at March Term, 1893, of the Criminal Court of New Hanover County, before Meares, J. The jurors, etc., present that John Thompson, etc., did unlawfully commit perjury upon the trial of an action in the Mayor’s Court in the city of Wilmington in said county, wherein the State of North Carolina was plaintiff and John Thompson was defendant, by falsely asserting on oath, “ in substance, as follows, to-wit: ‘About 8 o’clock on the 25th of February I…

<p>Indictment for larceny, tried before Boykin, J., and a jury, at Spring Term, 1893, of Davie Superior Court. Defendant was convicted, and appealed.</p>

<p>Criminal Action — Judge Directing Verdict — Practice.</p> <p>1. In a criminal action the trial Judge cannot direct a verdict on the testimony, for the jury must pass upon the credibility of the testimony offered.</p> <p>2. Regularly, the two pleas of “former conviction” and “not guilty” should be tried separately, since the former implies an admission of the criminal act and is inconsistent with an absolute denial.</p>

<p>Indictment for carrying concealed weapons, tried at Fall Term, 1893, of LincolN Superior Court, before Mclver, J.</p> <p>The facts are stated in the opinion of Associate Justice Avery.</p>

Indictment for highway robbery, tried before Hoke, J., and a jury, at Spring Term, 1893, of Edgecombe Superior Court. The defendant was convicted, and- appealed. The facts appear in the opinion.

Criminal action, commenced by warrant issued by and returnable before a Justice of the Peace, against the defendant for selling spirituous liquors contrary to the provisions of section 2740 of The Code, and tried, on appeal, before Bryan, J., and a jury, at March Term, 1893, of Orangk Superior Court.

<p>Defaulting Witness in Mayor’s Court — Contempt — Pouter of Mayor to Fine for Contempt.</p> <p>1. In addition to the fact that the power to punish for contempt is inherent in all Courts and essential to their existence, the authority given in this respect to Justices of the Peace by section 651 of The Code is extended to Mayors by section 3818 of The Code.</p> <p>2. A fine of $8 imposed by a Mayor upon a defaulting witness for contempt in disobeying a subpoena is not excessive.</p> <p>3. From analogy to cases in which prosecutors are taxed with costs, an appeal from a judgment in a proceeding for contempt against a defaulting witness in a prosecution against R. should be entitled “State v. R.; appeal by A., defaulting witness.”</p>

<p>Indictment tried before Carter, J., at April Term, 1893, of the Criminal Court of Buxcombe County.</p> <p>The facts are stated in the opinion. Defendant appealed.</p>

The defendant James Burton was tried, on appeal from a Justice’s judgment, at the February Term, 1893, of the Superior Court of VaNCe County, before Shuford, J., and a jury, on a proceeding in bastardy, and the issue was found against him, and, upon judgment being pronounced against him by -his Honor, he was, on motion of the Solicitor, placed in the custody of the Sheriff, by whom he was, on failure to comply with the order of the Court aforesaid, committed to the common…

Criminal action, tried at October Term, 1893, of Franklin Superior Court, before Hoke, J., and a jury. The indictment charged that the defendant entered the dwelling-house of one Sallie Ham, in the night-time, with intent to commit rape on an inmate of the house, and that he made an assault on the latter with intent to commit rape. All the evidence tended to show that the family was actually present in the house at the time it was entered.

This is an application for a certiorari to review the action of Bryan, J., in refusing to discharge the petitioners on habeas corpus. Notice was given as required by Rule 43 of this Court, the time being shortened by consent of the Attorney General. The petitioners filed’a certified copy of the record and proceedings as a part of their application.

Indictment for murder, tried at September Term, 1893, of Richmond Superior Court, before Connor, J. There was evidence that the prisoner and the deceased (Frank McKoy) had some difficulty a short time before the homicide, and that prisoner had made threats against deceased.

Criminal action, tried before Winston, J, and a jury, at May Term, 3893, of Iredell Superior Court. The defendants and one Houston Brown were indicted for an assault with a deadly weapon on one Way. There was evidence introduced on the part of the State tending to prove the guilt of all of the defendants, except Brown, and as to him, a nol. pros, was entered.

Criminal ACTION, tried at Fall Term, 1893, of Yancky Superior Court, before Boykin, J., and a jury. The jury returned a special verdict, upon which his Honor adjudged the defendant “ not guilty,” and the State appealed. The facts are stated in the opinion of Associate Justice Clark.

The defendant was convicted on his plea of guilty, before a Justice of the Peace, of a violation of the provisions of chapter 42, Acts of 1891, making it unlawful, among other things, to use profane language to the disturbance of the peace on the lands of the Henrietta Cotton Mills in Rutherford County.

The defendants were tried and convicted before a Justice of the Peace .on a warrant issued for a violation of section 2592 (interrupting and disturbing a public school), and on the trial on appeal, before Graves, J., at Spring Term, 1893, of Swain Superior Court, the jury rendered a special verdict as foll.ows: “The Big Cove, Indian School-house was built, as to the walls and roof thereof, by the Cherokee Indians, and the building thus made was paid for out of the common…

Iudictment for murder, tried before Winston, J., and a jury, at August Term, 1893, of Forsyth Superior Court. The defendant was convicted and appealed. The exceptions, etc., upon which the appeal was based are stated in the opinion of Chief Justice Shepherd.

<p>Indictment for violation of the provisions of chapter 75, Acls of 1891, tried before Meares, J., at May Term, 1893, of New Hanover Criminal Court.</p> <p>The Stale appealed.</p>

CRIMINAL ACTION, tried at May Term, 1893, of Rowan Superior Court, before Winston, J. The defendants were indicted for larceny and receiving stolen goods, knowing them to have been stolen. The jury found the defendant Barber guiltj'- upon the second count (receiving, etc.), and he alone appealed from the judgment pronounced.

<p>Indictment for murder, tried in Buncombe Criminal Court, before Jones, J. The facts appear in the opinion. The prisoner appealed from the judgment pronounced.</p>

<p>Indictment for murder, tried before Bryan, J, and a jury, at March Term, 1893, of Durham Superior Court.</p> <p>There was a verdict of “ not guilty of the felony and murder as charged in the bill of indictment, but guilty of the felonious slaying.” From the judgment thereon the defendant appealed.</p> <p>Defendant was a policeman of the town of Durham, assigned to special duty in a locality called “Smoky Hollow,” just beyond the corporate limits of the town, the locality being inhabited, for the most part, by lewd women. On the evening of the homicide he was drunk and called, in company with Dick ITapper, at a house of ill fame kept by Nan White. While in Nan White’s room, deceased and his brothers, John and Charles, stopped at the house. As to the circumstances connected with and leading up to the homicide, John Jones testified for the State, that he went upon the porch and knocked at the door, and was told by the woman that he could not come in. He knocked again, and defendant came up the steps and took him by the arm, advising him that he was under arrest. Witness asked him to show his authority, and defendant did not do so. Happer took witness by one arm, and defendant took him by the other; and decease! came up, and told them to turn witness loose, saying that he would take charge of him. This defendant refused to do, and on being asked by witness to show his authority, pulled out his pistol and shot deceased. Before defendant shot, deceased took witness by his left arm and tried to get him out of. defendant’s hands. Witness and deceased then ran off in different directions, and deceased died an hour later. Dr. A. Cheatham was called, and testified that defendant died fiom a pistol wound in the stomach. After introducing witnesses to testify to the good character of John Jones the State rested.</p> <p>Dick Happer testified in behalf of the defendant, that on the night of the homicide he and defendant visited Nan White’s house. Defendant went into her room, and witness into another room. Witness heard some one kicking at the door about fifteen minutes after. Witness heard a voice say: “It takes a damn good man to carry me up town.” Then he heard defendant say: “ Well, you will have to go.” Witness went out and found deceased and his two brothers and defendant on the porch. One of them asked defendant to show his authority, and defendant said, “Here is my authority,” and showed his badge. At defendant’s request witness took John Jones’s hand, and they started up town, deceased and Charles Jones following them. Witness heard someone running up behind them, and looking back saw deceased and Charles right behind them. Deceased grabbed defendant on the shoulder and said, “You damn son of a bitch, you sha’n’t carry my brother off 1 ” Charles also seized defendant, and a struggle ensued. One of them said, “Cut his damn throat.” Defendant fell, and deceased struck him, witness at the same time having his arms around deceased’s waist. Charles had defendant by the throat and said, “ Cut the damn son of a bitch’s throat.” Then a pistol was fired twice, and deceased said, “The damn son of a bitch has shot me twice. Defendant called out “ Help,” or “ I’ll give up,” and witness ran for a policeman, and told him that defendant had tried to arrest some men in Smoky Hollow; that they had jumped on him, and the policeman had better go there quick. Mrs. Brandon’s house was the closest house to the shooting. •</p> <p>Nan White testified that while Rollins was in her room some men came on her front porch and kicked the bottom of her door. She stepped into the hall and told them that she was sick, and that there was no one to see them, and asked them to go away. The kicking continued, and she requested defendant to go out and take them away. The kicking at the bottom of the door was so severe that one of the panels was broken loose.</p> <p>Mrs. Mary Brandon testified in substance: “I live on East Main street, near where Reams avenue runs into it. I live on left-hand side of street. No fence around my house; none in front; a wire fence at the side. The night of the homicide I was at my house, and heard some men coming from towards the railroad. They were coming towards town. There was cursing going on among them. Just as they got to the fence at my house the cursing was loudest. I heard a man say, ‘ I’ll cut his throat.’ Then a pistol fired, and then, right straight, another. Some one said, ‘I will cut his G — d d — n throat. I’ll cut his head off.’ I opened front door, and shut it. Went to back door and hollered ‘Murder ’ four or five times. Two or three came to my back door. Jasper Phipps was the only one I knew.” Defendant asked witness, “ What did you say to those that came to your door?” The State objected, and the answer was ruled out. The defendant excepted. (This was the first exception.) Defendant stated the purpose of the question to be to show that she said to those that came up that they were killing a man at her door; that they were cutting a man’s throat at her door, and insisted that it was competent as a part of the res gestas, and that it tended to corroborate witness in what she now says. Witness had not been attacked.</p> <p>Jim Potts, a witness for defendant, testified as follows: “I was in Smoky Hollow the night of the homicide, at Lilly Bennett’s about three hundred and fifty yards from Mrs. Brandon’s — back of Nan White’s. Heard two pistol shots. Sounded as if shot in a box or house. Heard someone, in a woman’s voice, holler ‘ Murder.’ I saw Mrs. Brandon in her door, hollering ‘Murder.’ She continued till I got there. I ran around to the front door. Saw defendant and Jasper Phipps, and some more men in front. I went on after them. Pretty soon Rollins overtook one, and caught hold of him. Phipps was in front of Rollins a little bit. By that time had gotten out of my sight. I kept going towards Rollins. Saw the blaze of a pistol. By that time I had gotten up to Rollins.” Defendant then asked, “ What did Rollins say to you as you ran up, between third and fourth shots?” State objected. Defendant stated that he expected to prove that defendant said, “ Catch hold of this man; he has tried to kill me”; and insisted on its competency as a part of the res gestae. The answer was excluded, and defendant excepted. (This was the second exception.) •</p> <p>The witness further said: “I don’t know who fired those last two shots. I could see the blaze, but it was too dark for me to see who shot. Rollins did not. I caught hold of the man that Rollins had. It was Charles Jones. Phipps was standing near, with John Jones.” The defendant asked, “What was John Jones’s condition?” The State objected. The defendant stated that he expected to prove that he was very drunk, to contradict John Jones, to impeach his credit as a witness and as a circumstance corroborating defendant’s contention of self-defence. The answer was excluded and defendant excepted. (This was the third exception.)</p> <p>J. W. Bradford testified, in substance, that he was Chief of police of Winston; that he knew the deceased, Sandy Jones, and knew his general character. The defendant offered to prove by this witness that the deceased, Sandy Jones, was a man of most violent and, dangerous character. The State objected. The defendant insisted on its competency, there having been introduced evidence going to establish self-defence, and further, as a circumstance going to show whether the said deceased introduced the knife into the difficulty, the evidence on this point having been circumstantial. The evidence was excluded, on the ground that it was not shown that the defendant knew deceased or his character, and that the evidence of the homicide is not circumstantial, and defendant excepted. (This was the fourth exception.)</p> <p>Among the instructions requested by the defendant the following were refused and such refusal duly excepted to under exceptions from five to ten, as referred to in the opinion:</p> <p>“9. If the jury shall believe that the said John D. Jones was under lawful arrest and in the custody of the defendant, and that the deceased, Sandy Jones, and Charles Jones, either or both of them, attempted to rescue the said John D. Jones from such custody, then the defendant, in resisting such attempt, vrould be protected in the use of such force that a jury would ordinarily consider excessive, if the defendant was acting in good faith and was free from malice.</p> <p>“10. If the jury believes that the said John D. Jones was under lawful arrest, in the custody of the defendant, and that the deceased, Sandy Jones, or Charles Jones, both or either of them, attempted to rescue said John D. Jones from such custody, then the law presumes that in resisting such rescue the defendant acted in good faith and free from the influence of malice.</p> <p>“11. If the jury shall believe that John D. Jones submitted to arrest by the defendant, and submitted to remain in the custody of the defendant, and after the defendant and the said John D. Jones walked together for the distance of twenty or thirty yards, and if the jury believe that the deceased, Sandy Jones, or Charles Jones, or both or either of them, attempted then to rescue the said John D. Jones from such custody, the defendant had the power and authority to resist such rescue, even though the original arrest was unlawful, and, to use such force as was necessary to prevent such rescue and escape.</p> <p>“22. If the jury shall be’ieve that after John D. Jones was arrested by the defendant, the deceased, Sandy Jones, or Charles Jones, both or either of them, assaulted the defendant, then the defendant had the power to arrest said Sandy Jones, or Charles Jones, or both of them, for such an assault, and to use such force as was necessary to make such arrests. (This was given with a modification, providing that the arrest of John D. Jones was lawful.)</p> <p>The sixteenth and eighteenth prayers for instructions, which were refused, are set out in the opinion.</p> <p>The following charges were given at the request of the State, and excepted to by defendant:</p> <p>“1. That the killing having been admitted or proven to have been done with a deadly weapon, it devolves upon the prisoner to show to the jury facts or circumstances to mitigate or excuse the crime, and if the testimony does not satisfy them of the mitigating facts and circumstances, then it is their duty to convict of murder.” To this the defendant excepted (Exception 11), and assigned as error that the instruction not only ignores, but contradicts the principle that an officer, in resisting a rescue, is presumed not to use excessive force, nor to have been actuated by malice; the evidence having established he was a police officer, within his jurisdiction and territory.</p> <p>“2. That if the jury shall find that John Jones was doing no more than knocking at the door of Nan White’s house, and asking for admission, as testified to by the said John Jones, W. B. McCullock and Charles Jones, then the Court charges that the said John Jones was commiting no offence, and his arrest was illegal, and that he had the right to resist the arrest, and the deceased had the right to aid him in so doing, and that right existed as long as the arrest continued, and they had the right to use the necessary force to free said John Jones; and the killing of Sandy Jones, in resisting his attempts to free said John Jones, would be murder, unless excessive force was used by the said Sandy, or those acting with him, and, if excessive force was so used, then the crime would be manslaughter” The defendant excepted (Exception 12), and assigned as error that his Honor erred in singling out and naming certain State’s witnesses, and telling the jury that if they believed what they said, they would find such and such a verdict, thus giving their testimony undue prominence and dignity, and further insists that the right to resist unlawful arrest was personal to the one arrested, and did not extend to deceased, nor did it extend after John Jones had peacefully submitted.</p> <p>“ 3. That an officer may arrest without warrant for a breach of the peace committed in his presence, but he must, unless a known officer, notify the person that he is an officer and has authority, and if he fails to do so, especially upon demand, then the arrest is illegal and may be lawfully resisted by the party arrested or third persons; .and the person making the arrest, slaying any one of those making the resistance or rescue, would be guilty of murder, unless excessive force was used by those resisting, and then he would be guilty of manslaughter.” The defendant excepted (Exception 13), and assigned for error that there is no evidence that defendant was not a known officer, the only evidence on that question being that he had been a policeman of the town, and recognized as such, for more than six months; that if lie were an officer, though not known to the one arrested to be such, his said failure would not make an arrest illegal; and, further, that the right to escape, even from illegal arrest, was personal to the party so arrested, and did not extend to third persons.</p> <p>“4. That where the arrest is made legally, by a lawful officer, then he may use the amount of force necessary to prevent an escape or rescue, and no more, and if he uses excessive force, and death results, then he is guilty of manslaughter; but, if excessive force is used, and he intentionally slays the person resisting arrest or the person attempting the rescue, he is guilty of murder.” The defendant excepted (Exception 14), and assigned for error that his Honor failed to tell the jury that what would be excessive force in an individual in an ordinary encounter would not be so in an officer resisting the escape or rescue of a prisoner; and further, that in using the phrase, “if excessive force is used,” his Honor failed to tell the jury by whom the excessive force, if used, led to such a conclusion and left them to infer that, if used by anyone, either defendant or deceased and his associates, the same conclusion followed, which was erroneous.</p>