Volume 114 — North Carolina Reports

<p>Lease Contract, construction of — Lease Terminable upon Sale of Ijamd by Lessor — Sale, what constitutes — Notice—Former Adjudication.</p> <p>1. Where a contract of lease of land made to enable the lessee to erect a building thereon provided Unit the lessee and his assigns should have entire control of such building and that the lease should continue until the lessors should sell the lot, the latter to give the lessee and his assigns thirty days’ notice after the sale to remove the building, etc.; and further, that the lease should “be determined only'on the sale of the land and the-giving of the thirty days’ notice, as hereinbefore mentioned”: Held, that the true intent and effect of such provisions were that the lease should terminate whenever the lessors should dispose of all their interest in the land so leased, and that the lessees should have thirty days’ notice of such sale to enter upon the lot and remove the building.</p> <p>2. Where a lease was, by its terms, terminable upon the sale of the land by the lessor, and the latter conveyed the land to his wife for life with remainder over and ho and his wife thereafter executed a mortgage upon the wife’s life estate, which was sold under Ihe power of sale contained in the mortgage: Held (1), that such conveyances constituted a “sale” of the land and terminated the lease; (2), that the purchaser of the said life estate was the proper person to give to the occupants of the lot notice that the lease was ended and that they should take notice of that fact and conform to the terms of the lease, and the failure of the remaindermen to join such purchaser in giving the notice cannot affect the latter’s rights; (3), a notice by such purchaser to the occupants of the lot that he had purchased the lot and that the lease was ended was sufficient, although it did not specifically require the removal of the building.</p> <p>8. Where a lease by A. and wife of the land of A. provided that it should terminate upon the sale of the land by the lessors and A. conveyed his interest in the land to his wife for life with remainder over, and in a suit by the wife against the lessee for'possession upon the ground that the conveyance by the husband terminated the lease it was adjudged that the lease had not been determined, such adjudication could not affect the rights of a subsequent purchaser of the wife’s life estate in a suit for possession upon the ground that the sale by both the husband and wife of their interest in the land had terminated the lease.</p>

<p>At’TioN, tried at Fall Term, 1898, of UaM-dkN Superior Court, before Graves, J., and a jury, the purpose of the action being to recover damages for injury to crops growing on plaintiff's farms lying upon the sweat or leakage ditches of the defendant company, because of its failure to keep the ditches in proper condition to carry off the water turned into the same and the consequent Hooding of the lands. The defendant is a non-resident corporation, and service was made upon it by attaching its property and by subsequent publication of summons. The defendant appeared specially and moved to dismiss the action before Hoke, J., at Fall Term, 1892, which motion the Court refused, and defendant excepted.</p> <p>The defendant then entered an appearance to the merits and, after trial of the issues before Graves, J., there was an appeal by both parties from various rulings, which it is not necessary to set out, inasmuch as the decision of this Court rests solely on tiio appeal from the refusal-of the motion to dismiss the action.</p>

Bpkoial proceeding, heard' at Fall Term, 1898, of HkrtpoRD Superior Court, before Graves, J. The case commenced before the Clerk on petition to soil land for partition, and was transferred to term for trial on issues raised by the pleadings.

Civil action, tried before Brown, J., and a jury, at January, 1894, Special Term of Pasquotank Superior Court. The plaintiff alleged that he was the surviving partner of the firm of T. S. Berry, and sought to recover from the defendant hank the balance due the firm on its deposit. The administrator of T. tí. Berry was allowed to become a party defendant, and in his answer denied the alleged partnership, and claimed the bank balance as the property of his intestate.

<p>Pleading — Statute of Limitations, defective plea of.</p> <p>1. ruder The Code, as well as at common law, the facts constituting1 a cause of action or defence must be plainly set forth in the pleading.</p> <p>2. A plea of the statute of limitations which contains no facts whatever, and which i'efers to no facts in the other parts of the pleading which lend any aid to the plea and from which any legal conclusions can be deduced, is defective.</p>

Civil action, hoard before Brown, J., at January Special Term, .1894, of Pasquotank Superior Court. The purpose of the action was to obtain an. accounting by the defendant of his trusteeship under a deed of assignment made by Moses Weisel, the plaintiff, surviving partner of the firm of H. Weisel & Son.

Civil actiox, tried before Brown, J., ¡uxl a .jury, at a Special Term of Pasquotaxm: Superior Court. There was judgment for plaintiff, and defendant appealed. The facts are .sufficiently stated in the opinion of Chief Justice Siikpiikhd. (See also, Davis v. Ely, 104 X. C., 16, and Ely v. /laris, 111 X. 0., 24).

Civil action, heard, on demurrer to the complaint, before Brown, J., at January, 1894, Special Term of Pas-ouotaNK Superior Court. 'The facts are substantially the same as reported in the case of Ely v. Davis, 111 N. C., 24.

This was a civil actiox, tried at Special Term, November, 1893, of Bertie Superior Court, before Bynum, J., a jury trial having been expressly waived, upon an agreed statement of facts, which wore substantially as follows: That Parker Harmon died intestate in Bertie county on the 4th day of July, 1877, aged eighty-two year’s, seized and possessed of the land described in the complaint, which is a part of the land mentioned as the home plantation in “Items 1st and 2d” of the…

Civil action for the recovery of land, tried before Gmves, J., aud a jury, at Fall Term, 1893, of Pasquotank Superior Court.

<p>Civil action, tried at Spring Term, 1898, of NORTHAMPTON Superior Court, before Hoke, J.</p> <p>It is alleged in the complaint that the plaintiff conveyed to the defendant and wife a certain tract of land by deed in fee-simple upon which defendants reside, and that at the time of the execution of the deed the defendants paid $600 cash and gave their joint notes for the balance, $300, the subject of the action; that defendants are in possession of the land, having executed a mortgage thereon to a third party to secure a note for the $600 borrowed by them to make the cash payment.</p> <p>The plaintiff demanded judgment against the male defendant and that the bonds (which expressed on their face to be for the balance of the purchase-money for the land) be declared a lien upon the land and be enforceable against the feme defendant to the extent of her interest therein.</p> <p>The defendants, admitting the execution of the bonds, alleged that the feme defendant had no separate property, and insisted that her contract did not expressly constitute a charge on her property, etc.</p> <p>Upon an agreed state of facts (as substantially set out above) his Honor declined to give any judgment in affirmance of the contract which would bind or affect the wife’s interest in the land, and gave judgment for the amount of the notes against the male defendant, whereupon plaintiff appealed.</p>

<p>Civil action, tried before Bynum, J., and a jury, at August Term, 1898, of Noktiiami’ton ¡Superior Court, the sole question presented being the statute of limitations, and tlie issue submitted being, Is the debt of the plaintiff barred by the statute of limitations?</p> <p>It was admitted that Calvert, the testator of the plaintiff, obtained a judgment against Boone, the intestate of the defendant, in the Superior Court of Northampton County on .January Id, 1878. That an execution was issued and thirty-two dollars paid on it on the 23d of April} 1874. It was further admitted that Calvert, the plaintiff’s testator, died on the 3d day of.September, 1881; that letters of administration issued to the plaintiff on the 9th day of December, 1881; that a will was afterwards found in which plaintiff was named as executor; that thereupon probate in common form was had and the plaintiff appointed executor on February 2, 1882, and letters testamentary issued on that date, and the letters of administration previously issued revoked.</p> <p>It was further admitted that on the 4th day of March, 1882, a caveat was entered to the will of the plaintiff’s testator, which pended until October 5, 1885, when a decree was obtained establishing the will.</p> <p>It was further admitted that the defendant’s intestate, Boone, died on the 20th day of October, 1884, and letters of administration on his estate issued to the plaintiff on the 20th day of October, 1884. The summons in this cause was issued February 26, 1889.</p> <p>Hughes, the plaintiff, testified as follows: “ I knew' Charl-ton Boone; I called the attention of the defendant, his administrator, to this debt shortly after lie qualified as administrator; told him there v-'as a judgment; he said his brother, Charlton Boone, left a book which had credits to go on this judgment; I wanted him to pay it; I mentioned if to him several times after this. He told me the legatees told him not to pay it. I said nothing to him about, the amount of the judgment.”</p> <p>Upon cross-examination says: “The defendant administrator told me on one occasion that Mr. Bowen, a lawyer, had told him not to pay it, and that the heirs at law told him not to pay it. T was at Charlton Boone’s sale; knew he was dead; I do not remember seeing any notice for creditors to present their debts.”</p> <p>This was all the evidence.</p> <p>Upon the close of the evidence the Court informed the counsel for the plaintiff that he should instruct -the jury that if they believed the evidence it -would be their duty to return a verdict for the defendant, and answer the issue, Yes. And upon this intimation the plaintiff submitted to a nonsuit and appealed.</p>

<p>This was au aitkal from an order, in a cause ponding in NortjiamptoN Superior Court, made by Plokej J., in Cihambers, by consent, at Halifax, on May 24, 18915, continuing the restraining order until the hearing, and from which ruling the defendants appealed.</p>

Oí vil ACTION, tried before Bynum, J., and a jury, at August Term, 1893, of Northampton .¿superior Court. Tlio action was originally commenced by Catherine T. Johnson, Cornelia Johnson and Lula Johnson, as plaintiffs, against J. T. Gooch, as administrator de bonis non, c. t. a., of Virginia A. Johnson, as defendant. W. W. Peebles and R. B. Peebles were afterwards made parties defendant.

AotioN for damages, tried at Fall Term, 1893, of Craven Superior Court, before Bynum, J. The plaintiff proved that he lived in the city of Newbern, North Carolina, and had for eighteen months prior to the time of receiving the telegraphic dispatch as set forth in the complaint, t-o-wit, the 21st day of April, 1892, been engaged in buying and selling stocks on the New York market; that he carried on his correspondence in regard thereto over the telegraphic lines of the…

Civil actiox for title and possession of land, tried at the Fall Term, 1892, of the Superior Court of ILydk County, before Hoke, J. The plaintiffs deraigned title through— First, grant to William Watson, dated October 2, 1817; second, will of William Watson devising one-half of the land covered by the patent each to his sons, Augustus and James M. Watson; third, deeds of James M. Watson to plaintiff, W. W. Boomer, dated February, 1873, and of Augustus Watson to plaintiff,…

Actxox on bonds given by the defendant to the plaintiff for the purchase of land, tried before Ehvford, J., and a jury, at Fall Term, 1892, of Halifax Superior Court. There was judgment for the defendant, and plaintiff' appealed. The facts are stated in the opinion of Associate -Justice C-LAKK.

<p>Acred and Bail — Breach of Trad — Fraudulent Intent■ — ■ Evidence.</p> <p>1. Where a linn of merchants gave to manufacturers of fertilizers their note for a consignment of goods, agreeing to hold such goods or the proceeds of the sale thereof, or the notes of farmers given therefor, in trust for the manufacturers, a fiduciary relation was established and a violation of the contract was a breach of trust for which, upon proper affidavits and the required undertaking, an oi'der of arrest could be obtained.</p> <p>2. The intent with which a breach of trust is committed is immaterial; and hence, where in the trial of an action for a breach of trust aided by the ancillary remedy of arrest and bail the plaintiffs, in reply to the testimony of defendants that they intended no breach of trust, were permitted to introduce evidence of other breaches of trust hy the defendants: Held, that such evidence was harmless, and its admission, upon the question of intent only, was not error.</p> <p>IS. Where members of a firm assume a fiduciary relation as to property committed to them, and a misappropriation is made by one partner with the knowledge, connivance or assent of the other, the intent of the latter to commit a breach of trust is conclusively presumed, for all the purposes of arrest and bail, from such knowledge and act.</p>

ActioN to foreclose a mortgage, tried before Hoke, J., and a jury, at Fall Term, 1893, of WilsoN Superior Court. The defendants resisted the sale of the lands conveyed in the mortgage upon the ground that the conveyance was inoperative, because the wife did not join in the same.

Controversy submitted without action, under sections 567-5(>9 of The Code, and heard before Hoke, J., at Fall Term, 1893, of WilsoN Superior Court, upon an agreed -statement of facts substantially as follows: On February 16,1893, William Griffin and others executed to M. Rountree & Co. a mortgage whereby they conveyed to the latter, besides other property, the crops to be made during the year 1893 on certain lands therein described to secure said R. & Co. for advances to be…

<p>Certiorari — Intentional Omission by the Judge of Irrelevant Fads in Case Settled — Practice.</p> <p>A certiorari will be denied where it does not appear that the matters omitted from the ease settled are relevant to the exceptions presented on appeal or were omitted by mistake or inadvertence of the Judge below, although the latter is willing to supply the omission.</p>

Civil ACTION, tried before Bynum, J., and a jury, at Fall Term, 1893, of Halifax Superior Court,.

<p>MotioN to dismiss the appeal of the defendant Nancy Bunn from a judgment rendered in an action tried before Shuford, J., at Fall Term, 1893, of Vaxce Superior Court.</p>

This was an appeal by defendants S. L. and J. C. Arring-ton from a judgment of the Superior Court of VANCE County rendered in an action tried at Fall Term, 1893, before Shuford, J.

ActjoN to recover possession of land, commenced in Wayne county and removed by consent to Nash, where it was heard at the November Term of the Superior Court, 1898, before Iiolce, J., and a jury. There was a verdict and judgment for the plaintiff, and the defendant appealed.

<p>This was a civil action, tried at October Term, 1893, of Yaxcje Superior Court, before Iloke, J, and a jury.</p> <p>To condense the pleadings as far as practicable: The plaintiff brought his action against the widow and heirs of D. S. Allen, alleging title and seeking to recover possession of the tract of land described in the complaint. ITe further alleges that said land formerly belonged to one J. J. Hayes, and was purchased from him by plaintiff and D. S. Allen jointly, in 1869, for $2,000, and that plaintiff'subsequently bought the interest of D. S. Allen in said land, and that, after the death of J. J. Hayes, his administratrix, at the request of I). S. Allen, executed and delivered a deed for the land in fee-simple to plaintiff, said deed having been drawn and witnessed by said D. S. Allen; and plaintiff demands judgment that he is the owner in fee-simple and entitled to immediate possession of the land, and if necessary that the heirs of J. J. Playes be znade parties and decreed to make title to him ; and for such other relief, etc.</p> <p>Defendants admit possession in themselves and deny that the same is wrongful; they admit the joint purchase of the land from J. J. Hayes, the death of Hayes, and the execution of the deed to plaintiff by the administratrix, but they deny her right to make a valid conveyance of the same; they aver that D. S. Allen paid at least half of the purchase-money for the land — a part of the same to the administratrix — and they denj' that ho sold his interest in the same to plaintiff; they aver that Allen used $1,000 of his wife’s money in payment for the same, and aver that tlze deed was made to plaintiff that he might hold the land as security for the payment by Allen to plaintiff of the ■ price of plaintiff’s interest in the land which Allen bought from plaintiff, and that Allen in his life-time fully paid to plaintiff the said price; they claim the right to have a deed from the heirs of J. J. Hayes, or if the deed from Hayes’ administratrix conveyed title to plaintiff they assert their right to a conveyance in fee-sim-pie of the whole tract from him, and they ask that if necessary the heirs of Hayes be made parties and decreed to make title to defendants.</p> <p>Plaintiff in his reply denies the payment by Allen of one-half the purchase-money with his own funds or with the funds of his wife, and denies the allegations of the complaint as to the equities set up that plaintiff holds the land in trust for them. He proceeds: “But plaintiff admits and alleges that on March 15, 1874, he contracted to sell to said D. S. Allen the said tract of land, with the stock on it, at the price of $2,944.62, and obligated himself in writing to convey the land to said Allen in fee whenever Allen should pay to him said sum, with interest thereon at the rate of eight per cent, per annum from the first day of January, 1875; and plaintiff further avers that on said March 15,1874, said Allen executed and delivered to plaintiff his (said Allen's) bond, whereby and wherein-he promised to pay to plaintiff the said sum and interest as aforesaid for said land and stock,” describing the land and offering to produce the bond. “And plaintiff says that he is now willing and has at all times since the execution of said bond by himself and D. S. Allen been willing and ready to convey to Allen in fee said tract of land upon his paying to him said sum of $2,944.62 and interest as aforesaid.”</p> <p>Defendants denied the execution of the $2,944.62 note and bond, and alleged that if said note and bond were ever executed the same has long ago been paid and satisfied.</p> <p>After the pleadings were read the plaintiff tendered the following issues, and excepted because the same were not submitted to the jury :</p> <p>“ 1. Is plaintiff the owner in fee and entitled to possession of the land described in the complaint?</p> <p>“ 2. Arc defendants in the unlawful and wrongful possession of the land, and do they wrongfully withhold possession from plaintiff?</p> <p>“ d. What damages has plaintiff sustained by reason of defendants’ withholding the possession from plaintiff?”</p> <p>Defendants also tendered issues which were not submitted, and his Plonor prepared numerous issues, as apparently necessary from'the-pleadings, and stated that he would proceed with the trial of the cause and frame the issues later on, or when the evidence was in, and which appeared-then to be required. There was no objection to this course.</p> <p>The plaintiff proved the handwriting of I). tí. Allen, and offered in evidence the following bond:</p> <p>“ $2,944.62. With interest at eight per cent, from the first day of January, 1875, I promise to pay L. B. Allen twenty-nine hundred and forty-four dollars and sixty-two cents, it being due for land and stock, etc., said land lying and being in the county of Franklin, and situated on either side of Lynch’s crook, adjoining the lands of J. W. Young, Paul Jenkins and others, and containing three hundred and forty acres, more or less.</p> <p>“’Witness my hand and seal, March 15, 1874.</p> <p>“ 1). S. AlluN, [Heal.] ”</p> <p>Upon which were indorsed many payments.</p> <p>The plaintiff then offered in evidence a bond of L. B. Allen to I). S. Allen, dated March 15, 1874, to convey land as follows:</p> <p>. “ This obligates mo to render to ü. tí. Allen a lawful deed to a certain tract of land in Franklin county, on Lynch’s creek, on which D. tí. Allen now resides, when he shall liquidate a bond of $2,944.62 which I have of this date given for said land, etc., and describing said land.</p> <p>“ Given under my hand and seal, March 15, 1874.</p> <p>“L. B. Allen, [Seal.]”</p> <p>The witness, L. B. Allen, on cross-examination, said he had the above bond in his possession in May, 1892, and brought it to Henderson and had same registered, .and paid fees for it.</p> <p>On re-direct examination plaintiff’s counsel asked witness how- the bond above mentioned came into his possession, intending thereby to show a transaction between witness and D. S. Allen, who is dead.</p> <p>Defendants’ counsel objected to the question. Objection sustained, and plaintiff excepted.</p> <p>The witness testified that the body of the bond was in the handwriting of D. S. Allen, and that it had no subscribing witness.</p> <p>Plaintiff’s counsel proposed to prove by this witness that the land referred to in the bond for title was the same land described in D. S. Allen’s obligation.</p> <p>Defendants objected. Objection sustained, and plaintiff excepted.</p> <p>■ The witness testified that a fair annual rental value for the land was $250.</p> <p>The plaintiff then introduced a deed from Arabella Hajres, administratrix of J. J. Hayes, deceased, dated 12th November, 1874, to L. B. Allen, for the land in dispute, but' not necessary to be set out.</p> <p>The plaintiff here rested his case, and the defendants .introduced evidence as follows:</p> <p>Mrs. R. P. Cook: “I am a daughter-of J. J. Hayes; he died 9th April, 1872; knewr Mr. D. S. Allen very well; did not know L. B. Allen very wrell; knewr about the land trade.”</p> <p>The J. J. Iiayes bond was shown to witness by defendant and identified by her.</p> <p>Plaintiff objected to the evidence of Mrs. Cook tending to show how or in what manner or in what proportion the Allens had made the original payments for said land prior to the execution of the deed from the administrator of Hayes, contending that by the execution of the $2,944.62 bond the defendants were estopped from questioning plaintiff’s title.</p> <p>The. Court held that this would he a correct position if the execution of the bond were established, but if such execution were not established the evidence would be pertinent on the third and fourth issues, as then prepared.</p> <p>Evidence admitted for this purpose, and plaintiffs excepted. Plaintiff' excepted to the evidence offered on the same ground, whenever offered in case in evidence of J. J. Hayes and of Gill, and wherever offered.</p> <p>Mrs. Cook then testified at length as to the purchase of and payment for the land by plaintiff and 1). S. Allen, and as to declarations of plaintiff to the effect that Allen owned half and was going to buy the other half of the land from him.</p> <p>I). H. Gill testified for defendant: “ I showed plaintiff the note dated March 22, 1874. Pie said the note was all right, and was given for the purpose it expressed; also said same about the payments, and said note was all right. He said this note was taken up and the note for $2,944.62 given in its place; and after I called his attention to the fact that the note for $2,944.62 was the oldest • he asked for the note. He and his wife then went out, and when he came back he denied knowing anything about the note. I was administrator of D. S. Allen, and had gone to plaintiff to see him about the matter. I am a brother of I). S. Allen’s widow; I know Burroughs Allen very well; my brother married Burroughs Alien’s sister. I heard Burroughs Allen say he had no interest in the home place here in litigation; that he had been paid for it by his brother, D. S. Allen. This was in the court-house at Oxford. I live three miles from Mark Allen’s; he made good crops at first. In 1885 he commenced teaching his children, and rented his land and made very little. D. S. Allen lived on this land from 1870, when he came thero, till he died. D. S. Allen’s wife had an interest in Hight’s estate. He never bought any other tract of land in Franklin county but this.”</p> <p>On cross-examination: “ D. S. Allen’s personal property was under mortgage at the time of his death. I heard L. B. Allen admit, in 1877 or 1878, that he had been paid up.”</p> <p>The bond under which plaintiff claims title was exhibited, and witness says that he does not believe the credits are in D. S. Allen’s handwriting. “I think they were all put there at the same time; looks like it.”</p> <p>On re-direct examination says: “ D. S. Allen’s habits were economical; he made money farming until farming became unprofitable.”</p> <p>Defendants then offered in evidence thebond for $1,544.68, dated March 22, 1874, as pertinent evidence in the case, since the witness had testified to plaintiff’s declarations about it.</p> <p>Plaintiff objected to admission of the bond and indorse-ments thereon:</p> <p>1. Because it is a declaration of D. S. Allen in his favor.</p> <p>2. Because no land is described therein.</p> <p>3. Because irrelevant and immaterial.</p> <p>Objections overruled; plaintiff excepted. The bond was then read:</p> <p>“ $1,544.68. With interest from the first day of January, ■ 1875, I promise to pay L. B. Allen fifteen hundred and ■ forty-four dollars and sixty-eight cents, it being balance due for one-half in a certain tract of land in Franklin county, sold me in 1870/and for money lent for various • purposes. The conditions of the bond are that, when satisfied, the sai-d L. B. Allen shall render to me a lawful and «warranty deed to the land mentioned above.</p> <p>“Given under my hand and seal, March 22, 1874.</p> <p>“D. B. Allen, [Seal.]”</p> <p>■ There are indorsements on said bond, as follows:</p> <p>“Received December 10, 1874, ($220)’two hundred and twenty dollars on the within.”</p> <p>“Received June 20, 1875, $280 on the within bond.”</p> <p>“Received February 26, 1876, ($167.70) one hundred and sixty-seven dollars and seventy ’cents on the within.”</p> <p>“ Received on the within bond, December 23,1876, ($500) five hundred dollars,”</p> <p>In talking to the plaintiff about the credit of $280, first credit on the $1,544.68 bond, witness said he asked L. B. Allen if he had bought his brother I). S. Allen’s interest-in his father’s land. He said-he had. Asked him if he ever paid his brother for this interest, and he said, ‘ No, it •went into the settlement about this tract of land in dispute.’ We were talking about this $280.”</p> <p>Plaintiff excepted to this evidence as immaterial. Overruled ; exception.</p> <p>Defendants offered in evidence the deed or contract by which D. S. Allen sold his interest in his father’s estate to L. B. Allen for $280, about which the witness Gill testified being same date as credit' on the bond.</p> <p>Plaintiff objected, not to the execution of this contract, but because same was irrelevant and immaterial. Objection overruled, and plaintiff excepted.</p> <p>The paper-writing was as follows :</p> <p>“For the consideration of the sum of two hundred and eighty dollars, the receipt of which is hereby acknowledged, we do herein grant, bargain, sell and convey to L. B. Allen all our right, title and interest to and in every kind and description of property whatever, whether of land, money, or aught else, we have and did inherit by will of James Allen, deceased, to have and to hold, to him and his heirs and assigns forever. Given under our hands and seals, January 20, 1875. “Bemarcus Allen,</p> <p>“ Pamelia J. Allen.</p> <p>“Attest:-Erastus E. Allen.”</p> <p>The above contract was duly proven and registered in Granville county, 20th of April, 1875.</p> <p>James A. Gill: “I am a brother of the defendant Pa-melia Allen and brother-in-law of the plaintiff. I heard the plaintiff say in Oxford the land in controversy w7as D. S. Allen’s. He had sued plaintiff for his wife’s share in her father’s estate, and he claimed this land as a part of it. Plaintiff said he had no interest in the land whatever; it belonged to D. S. Allen.” At another time witness said ho went to see the plaintiff and D. H. Gill. D. H. Gill handed the plaintiff the $1,544.68 note exhibited and some other notes. Plaintiff took the notes' and examined them carefully, and said they were all right. The plaintiff claimed that the $1,544.68 note was taken up and the $2,944.62 note taken in its place. -In reading it found the larger note was dated first. He was then asked how he accounted for that, and he then said he didn’t know anything about the $1,544.68; said this after going out and talking over the matter with his wife. I asked plaintiff how he happened to make the $2,944.68 note so large if it was for only for half the land, and asked him if anything else was in it; said there were other things — -there were some horses and supplies; that he, plaintiff, had originally put in more than D. S. Allen. Plaintiff said he had sold land to Allen at what it cost him. 'When witness and I). IT. Grill were leaving plaintiff said the $1,544.68. note was all right, but he was not prepared to say how it was. His attention was called to the $280 credit, the first on the $1,544.68 bond, and he asked plaintiff if he was paid any money. Plaintiff said, ‘ No, it was in the settlement about the tract of land in dispute.’ Mark Allen farmed at first as long as it was profitable, and did very well as long as it paid. Ho also taught school. He was sober, stead}'' and attentive to his business, and as economical as any man in my community.”</p> <p>Cross-examined. — “L. B. Allen lived in Granville county, twelve miles from Mr. Hayes direct; sixteen miles by road. I). S. Allen lived half the distance. In conversation was talking about the Mark Allen place. Janies Allen was the father of the plaintiff. In the suit I claimed the Mark Allen place because I had heard the money of James Allen’s widow went in part payment of the Mark Allen land. L. B. Allen admitted he had used a part of the money of James Allen in buying Mark Allen’s place. I went with D. IT. Gill, administrator of D. S. Allen, to L. B. Allen because L. B. Allen was claiming the $2,944.68 bond against T>. S. Allen, and the administrator had found the $1,544.62 bond, and D. S. Allen had no deed. I don’t know why, if the bond was paid, D. S. Allen should have drawn-deed direct to his brother. L. B. Allen made a careful examination of the $1,544.62 note before saying it was all right. He claimed that the $1,544.62 bond had been taken up and the $2,944.68 bond given in its place; then when the dates were called to his attention, showing the $1,544.62 bond the latest, h'e said he didn’t know how it was. He exhibited the $2,944.68 bond and claimed this was the bond now held for the land. D. S. Allen lived on this land from 1869 to his death.”</p> <p>On re-direct examination lie said: “In 1874 land was in Franklin county. This is the only land trade between the brothers for land lying in Franklin county.”</p> <p>AT. H. P. Jenkins: “Married sister of the plaintiff and I). S. Allen. I am Superintendent of Public Instruction in Granville county. I have known L. B. and I). S. Allen for fifty years. I was a part}7 to suit for an accounting in estate of my wife’s father’s land, James Allen. In March, 1875, Mr. L. B. Allen told me’ in Franklinton that the tract of land in Franklin, where I). S. Allen lived, belonged to him (D. S. Allen). I was contending that the farm in controversy belonged to James Allen’s estate, and plaintiff said it belonged to 1). S. Allen. I think he said it again. I was also present at conversation spoken of by the Gills, but didn’t hear it; I was talking to some one else. D! S. Allen was a man of high moral character, but I don’t know his economic habits.”</p> <p>On cross-examination said: “D. S. Allen once owed me a debt, and it was paid by L. B. Allen.”</p> <p>On re-direct examination : “ Both went to the war. The debt paid me by L. B. Allen was for teaching. L. B. Allen managed his father’s estate. L. B. Allen is a man of industry and judgment.”</p> <p>Hr. R. J. Gill: “ I am first cousin to Mrs. Pamelia Allen, and was the family physician of D. tí. Allen; was socially well acquainted, and saw him every day. He was one of the best farmers in the county. I had a gin, and in 1877 I ginned twenty-throe bales of cotton for him; ginned twenty-one bales the next year. He also carried cotton to another gin — about as much — the same years. He was an economical man in dress and living. His wife did the sewing and cooking for his family. I" was very intimate with him; I never knew of any other land trade in Franklin ; it was the only land he had then, or they had any transactions about.”</p> <p>(Plaintiff objects to this evidence. Overruled, and plaintiff excepts).</p> <p>“The $200 note was found in a table drawer in his parlor, where they found his other papers; $750 note found at same place ; $1,544.68 bond was found at same place, and the bond of Hayes found at same place.”</p> <p>On cross-examination said: “D. S. Allen quit farming toward the last, and went to teaching school.”</p> <p>Mrs. J. A. Gill: “ I am a sister of the plaintiff and D. S. Allen. I was married in November, 1872. In 1870 or ’71 was with 1). S. Allen. I lived before that at my home in Granville county. We met to settle James Allen’s estate, and the interest of each was $280, and Mark Allen said, in presence of L. P>. Allen, in a close, small room, whore all were sitting around, that his $280 went in payment of his place. This was the only land trade that ever took place between them.”</p> <p>On cross-examination: “ There might have been another trade, but I lived in the same house with D. S. Allen, and knew of their dealings, and this was all ever mentioned by them.”</p> <p>P. A. Bobbitt: “ I live in Yance county, and D. S. Allen listed the land for taxes.”</p> <p>Mrs. Pamelia Allen : “ 1 am the widow of D. S. Allen. He died October 24, 1891. We were married March 7, 1872. We moved to the land in 1872, and myself and husband lived on the place from 1872. He farmed until seven or eight years before his death; then he taught school. For many years after his marriage he was a very successful farmer. There was no other land trade between the brothers except as to this particular land in controversy.”</p> <p>.Defendants closed.</p> <p>Plaintiff then introduced Mr. A. D. Wester: “Lives in Franklinton; knew D. S. Allen, lived in two miles of him. I was one of the appraisers who set apart his exemptions. This was in January, 1887. D. S. Allen, at that time, said he made no claim to any land.”</p> <p>On cross-examination: “ D. S. Allen didn't say he didn’t have a deed; said he didn’t claim any land. Mr. Finch and Mr. Woody were the other jury to lay off homestead. There was a small excess. I never heard of any sale.”</p> <p>W. A. Woody: “I live in the southern part of county. Was present at laying off of homestead. D. S. Allen said he didn’t claim any land. Mr. Finch was rather the foreman of jury of view and did most of the talking. There was no sale of land.”</p> <p>Mrs. L. B. Allen : tfI am the wife of L. B. Allen. AVas married March 4, 1880. Mr. Allen then lived in Granville county the first year of our marriage. Wo then moved to Franklin county, five miles from Louisburg. I knew D. S. Allen and know his handwriting. The bond for $2,944.62, dated March 15, 1874, is shown; says she thinks it is in D. S. Allen’s handwriting, and the credits on same, 1, 2, 3, 4 and 5, are also in his handwriting. Credit December 22, 1879, is also his; also December 10, 1880; April 4, 1881, was written by witness; December 15 was his; March, 1883, was his. She had a conversation with D. S. Allen January 4, 1877.”</p> <p>Defendants objects to this conversation because witness is interested in event of action. Overruled, and defendants except.</p> <p>Court holds the result, in case of recovery, would be personalty, and so she would not be interested.</p> <p>“In 1887, I). S. Allen asked me to run up amount due on the bond, and I made it $8,-500; that was all that was said.” $1,544.62 bond shown to witness; she said Mr. Gill brought that home within two weeks after Mark Allen’s death. “ I saw the paper for the first time on that day. Mr. Gill said he was going to be administrator, and had come down to see what L. R. Allen had against the estate. I heard L. R Allen tell Gill that the $750 note was all right. He had never made any payments except through his brother Mark. I made a copy of the $2,944.68 bond at their instance and-gave it to Mr. Gill. Gill had shown the papers, and my husband said they were all right, but said he knew nothing of the $1,544.68 bond, but -had a Rond for $2,944.62, and plaintiff then went in to get the $2,944.62 bond. Gill didn’t present the $1,544.68 bond at first. L. B. Allen said the notes were all right, but had never seen the $1,544.68. I kept my husband’s papers, and went out with him to get the bond. * I have kept my husband’s papers since 1881.”. (The bond of plaintiff' shown witness). “1 first saw this paper about 1887; L. R Allen had it. I took it, and think I put it with his other papers; I think this was the time one of the credits was put on for schooling of my daughter. L. B. Allen didn’t say the $280 had been paid, but had been adjusted in settlement. As Gills were leaving, they asked plaintiff if he was not going to let sister have her home. He replied, ‘ Business was business; he had one bond, and would hold it.’ ”</p> <p>On cross-examination: “I never saw any money paid at time credits were entered by me. This was the only land that was ever the subject of trade between L. B. and I). S. Allen.”</p> <p>On re-direct: “She only knows of transactions occurring since marriage.”</p> <p>Plaintiff closed.</p> <p>After the close of the evidence, and before the conclusion of t]ie argument, the plaintiff insisted, and his Honor stated, that he would submit the following issues to the jury, which he did, without objection, saying there was no evidence that would justify the jury in finding that the $2,944 bond had not been executed:</p> <p>' “1. Did D. S. Allen execute to the plaintiff his bond for the sum of $2,944.62, dated March 15, 1874, as described in the pleadings?</p> <p>“2. Was said bond paid off and discharged by D. S. Allen ?</p> <p>“3. If not, how much is now due and owing thereon?”</p> <p>The plaintiff, in apt time, asked the Court to instruct the jury as follows:</p> <p>“1. The plaintiff having proven and offered in evidence the bond for $2,944.62, it devolves upon the defendant to prove to'the satisfaction of the jury that said bond has been paid, and the Court charges the jury that there is no evidence of any payment on said bond other than the indorse-ments on same. Therefore, if the jury believe the evidence of the plaintiff, they must answer the second issue, No.</p> <p>“2. That there is no evidence to show that the $1,544.68 bond was intended to go as a payment on the $2,944.62 bond, and the jury must not consider it in determining how much there is due on the $2,944.62 bond.”</p> <p>The Court declined to give the foregoing prayer for instructions, and the plaintiff excepted.</p> <p>On the close of the evidence the Court, having settled the three issues as shown in the record, stated to the jury the conditions of the different parties leading up to these three issues, and then further charged the jury that there were only three issues necessary to determine the controversy between these parties, all of them addressing themselves to the execution and payment of the $2,944.62 bond for the land in controversy, bearing date 15tli March, 1874; that it did not matter what was the original interest of the two Allens in the land, or what relations they respectively bore to it, nor how much either had paid on it; that the deed of Mrs. Hayes, administratrix, placed the legal title to the land in plaintiff, L. B. Allen, and that being true, if I). S. Allen, the ancestor of defendants, and under whom defendants claimed, had agreed to buy the land from him and executed the bond to him of 15th March, 1874, to amount of $2,944.62 for land and stock, that the law would not deprive L. B. Allen of the title until such bond was paid up; that there was no evidence that would justify the jury in finding said $2,944.62 bond was never delivered, and that if the jury believed the evidence they would answer the first issue, “Yes,” and the controversy really turned on whether the bond had been paid off or not, and if not, how much was due thereon; that on the second issue the burden was on the defendants; that the defendants, who claimed that the $2,944.62 bond had been paid, were required to prove it by the greater weight of evidence, and the jury should consider the evidence under that rule to guide them, and say whether or-not the bond had been paid off, and if it had not, in answer to the third issue they should say how much was still due thereon. The Court here adverted to all the evidence pertinent to this issue, including the evidence of the $1,544.68 bond, and the admission of L. B. Allen concerning same, and the credits indorsed on same, including the credit of $280, which had been shown to be the amount coming to D. S Allen from his father’s estate, and which had not been otherwise paid, as defendants contended. The Court did not advert to the evidence of Mrs. Cook as to the original payment, in terms, nor otherwise allude to the same in the charge, except in so far as such evidence was excluded by first part of the charge aucl by the statement of the Court when same was admitted.</p> <p>Plaintiff excepted to charge as given.</p> <p>The jury answered the first issue, “Yes,” the second issue “ Yes,” and the third issue “ None.”</p> <p>The Court signed the judgment set out in the-record.</p> <p>Plaintiff move$ to set aside the verdict. Motion denied. Plaintiff then moved for a new trial upon the ground of the several exceptions taken in the course of the trial, the refusal of the Court to charge as requested, and to the charge as given. Motion denied, and plaintiff excepted and appealed.</p>

This was a civil actiox, tried at January Term, 1893, of FeaNkliN Superior Court, before Shuford, J., and a jury.

<p>Civil actior, heard at Fall Term, 1893, of Pitt Superior Court, before Hoke, J., on a case agreed, the facts being substantially as follows;</p> <p>On the 18th day of December, 1875, Samuel Smith and wife sold and conveyed to the defendant Samuel Quinnerly a certain tract of land in Pitt county, by deed, which was duly probated and registered in said county.</p> <p>Upon the same day and date, and for the purpose of securing the unpaid balance of the purchase-money, the defendant Quinnerly simultaneously reconveyed the said land by mortgage deed to the vendor, Samuel Smith, which was recorded in the office of the Register of Deeds of Pitt County on the 10th day of September, 1877. On the 5th day of January, 1877, for money loaned, the defendants Samuel Quinnerly and wife, Sarah P. Quinnerly, executed and delivered their mortgage deed upon the said land; including therein seventy acres, more or less, not embraced in plaintiff’s mortgage, to the defendants Caroline L. Nelson and Susan C. Williams; and on the 18th day of January, 1877, said mortgage was admitted to probate, and upon order of the Probate Court was registered. In a commission to a Justice of the Peace to take the privy examination of the wife of the mortgagor was a recital that the mortgagees had “procured the same (the mortgage) to be proved by this Court.” There was no other recital as to acknowledgment or proof of execution by the mortgagor.</p> <p>Samuel Smith assigned the mortgage executed to him, and for the foreclosure of which this action was instituted, to the plaintiff, S. S. Quinnerly. Sarah Quinnerly. the wife of the mortgagor, died before the commencement of the action.</p> <p>Upon these facts his Honor adjudged that the mortgage to Mrs. Williams and Mrs. Nelson was properly proven and had priority to the mortgage to Samuel Smith, which was assigned to the plaintiff, and from this judgment the plaintiff appealed.</p>

This was an APPLICATION to continue a restraining order to the hearing, heard by Bynum, J., at Chambers in Wil-soN, Thursday, February 8, 1894. It was admitted that the articles of personal property were raised on the lands that belonged to the feme defendant. Counsel for defendant moved the Court to discharge the property and dissolve the restraining order as to it.

<p>Civil action, heard upon exceptions to the report of J. M. Mullen, Referee, at Spring Term, 1893, of Vance Superior Court.</p>

<p>Practice — Case on Apj)eal — Invalid Service by Constable— Amendment of Summons.</p> <p>1. Service by an officer means an officer authorized generally and by virtue of his office to serve process of the Court in which the action is pending.</p> <p>2. A town constable has no authority, under section 3810, as construed with section 644, to serve any papers for the Superior Court except process; an appellant’s case on appeal from the Superior Court is not process; hence, service of a case on appeal by a town constable is a nullity.</p> <p>3. Failure to serve a case on appeal on appellee legally and in due time cannot be cured by the action of the Judge below in thereafter settling the case.</p> <p>4. Where there is no valid case on appeal and no error appears on the face of the record, the judgment below will be affirmed,</p> <p>ó. Where an action was brought on the official bond of a Clerk of the Superior Court in the name of the parties injured by a breach thereof, it was not error in the Court below to permit an amendment of the summons by the insertion of the words “The State on relation of” after the pleadings were filed.</p>

<p>Notary’s Certificate of Acknoioledgment of Deed — Mortgage of Partnership Property by one Partner — Affixing Seal to Partnership Name— Water-tuorks Machinery and Pixmchise•— Public Necessity of Sale of,' together — Receiver—Time of Proving C’laims.</p> <p>1. The certificate of a Notary Public concerning the probate or acknowledgment of deeds is prima facie, evidence of the truth of its pertinent recitals; lienee a notary’s certificate on a trust deed signed by “ W., K. & Co.” that it was “acknowledged by E. Wl, one of the firm of W., K. & Co., the grantors,” is evidence of the fact that the deed was executed by a member of the firm.</p> <p>2. A trust deed executed by one member of the firm in the firm name, with seal attached, is binding on the firm as a contract, though not as a deed.</p> <p>3. A seal is not necessary to the due execution of a mortgage of personal property, and hence a seal affixed to the firm name signed to a deed of trust of personal property does not invalidate the conveyance.</p> <p>4. Contractors for the construction of a city water-works plant for a water company gave a trust deed on the machinery to the seller, which provided that the machinery should not be considered as fixtures until the debt was paid; the machinery was placed on the ground provided by the company, but was not paid for; a receiver for the company was afterwards appointed, and proceedings instituted to wund up its affairs: Held, that public necessity required that the plant and the company’s franchise should be sold together, and that the deed should -be a specific lien thereon, to the extent of the value of the machinery, except as to the claim of certain heirshav-ing an interest in the land.</p> <p>5. Though a day was set for all creditors of the company to come in and exhibit their claims, the Court could, in its discretion, allow further time, or permit creditors to prove their claims after such time, on showing reasons for failure to come in within the time fixed.</p>

This was a special prooeedixg brought before the Clerk of the Superior Court of Hyde County, and, upon issues raised on the pleadings, it was transferred to the civil issue docket and tried before Graves, /., and a jury, at Fall Term, 1898, of said Court, The pertinent facts'are stated in the opinion of Associate Justice Burwkll. . The issues submitted to the jury and the responses thereto were as follows: “ 1.

Civil action to recover possession of land, tried before Shuford, J., and a jury, at October Term, 1893, of Waynb Superior Court. The plaintiff offered -in evidence a deed purporting to be from R. B. Pate to W. A. Deans,- dated May 12, 1892. The wife’s name appeared in the body of the deed, but ivas not signed thereto. The following certificates were appended to the deed; “State or New Yore — New York County. “ I, Geo. Theo.

Civil action for the foreclosure of a mortgage, heard by Connor, J., at April Term, 1892, of Wayne Superior Court, upon an agreed statement of facts, which was substantially as follows: The defendant J. IT.

Civil ACTION for the recovery of land, tried before Battle, J., and a jury, upon the usual issues, a.t November Term, 1893, of HarNETt Superior Court. The plaintiff claimed under a deed from the Sheriff of Harnett county made in pursuance of a sale on 7th of April, 1890, under execution issued on February 25, 1890, on a judgment.rendered in the Superior Court on the 16th of February, 1880.

Civil actiok by Z. W. Haynes, administrator of John W. Haynes, against the Raleigh Gas Company for damages for causing the death of plaintiff’s intestate and son, tried at October Term, 1893, of Wake Superior Court, before Shuford, J., and a jury. The damages were laid at $10,000. The pertinent facts are stated in the opinion of Associate Justice Burwell. The issues submitted were as follows: “1.

This was a civil action for claim and delivery, tried before Brown, J., and a jury, on an appeal from a Justice of the Peace, at July Term, 1893, of GkaNVILLjc Superior Court. S. J. Jarrell, the plaintiff, introduced as a witness in his own behalf, testified that he rented a tract of land from Mrs. Gooch for the year 1892; that lie sublet it to the defendant, who was to pay one-half the crops.

This was an appeau from a .Justice of the Peace, tried before Brown, J., and a jury, at July Term, 1893, of GraN-ville Superior Court. The plaintiffs sued on the following bond: “ $225. On November 1, 1892, we or either of us promise to pay to R. II. McGuire or order the sum of two hundred and twenty-five dollars, with interest after maturity at eight per cent, per annum. Value received.

MotioN by Rebecca Harrison, -Judith Harrison and Nancy Dement (formerly Harrison) to amend the record in a special proceeding by so altering the judgment signed by Graves, ,/., at July Term, 1889, of Graxvillje Superior Court in such proceeding (being the case reported in 106 N. C., 282, and in 109 N. (!., 346) as to make the same what the movers claim Judge Graves intended it to be.

Civil action, tried at August Term, 1893, of Guilford Superior Court, before Brown, J., and a jury. The action was brought by The Times Publishing Company, of Richmond, Va., to recover of the defendant company upon an alleged contract as follows: “May 22, 1890. “J. A. SAm-r, Esq., “ The Times, Richmond, Va., “ Dear Sir : — You are hereby authorized to place ($1,000) one thousand dollars worth of advertising for our company in The Times and display to best advantage.

PbtitioN of plaintiff to rerinstate appeal dismissed at -'September Term, 1893, for that the same was not brought to the proper Term of this Court.

This is an appeal from an order made at December Term, 1893, of Guilford ¡Superior (¡ourt, by Brown, J., setting aside verdict rendered at the previous August Term. The motion to set aside the verdict was made by the defendants upon the ground that the damages were excessive and was based upon an agreement in writing between counsel for both parties entered upon the record of the Court at August Term, 1893.

This was a civil action for damages, brought by the plaintiff against the members of the Board of Commissioners of Alamance County, tried before Brown, J., and a jury, at August Term, 1893, of Guilford Superior Court. The plaintiff was, in September, 1890, adjudged guilty in bastardy proceedings by a Justice of the Peace and ordered to pay a fine of ten dollars, the costs of the proceeding and the allowance to the mother of the child.

<p>Will, construction of — Bequ-est in Trust, whether absolute or for life — Power of Cestui Que Trust to Dispose of Legacy by Will.</p> <p>1. In the construction of a will the intent of the testator, as ascertained from the consideration of the whole will in the light of the surrounding circumstances, must govern.</p> <p>2. In a disposition by will no words are necessary to enlarge an estate devised or bequeathed from one for life into one absolute or in fee, and, generally, restraining expressions are necessary to confine the gift to the life of the legatee or devisee.</p> <p>8. A testator, after providing for his widow and making equal distribution of his property among, all his children except A., a bachelor son, who, he seemed to fear, would dissipate his share, bequeathed to trustees thirty thousand dollars, “to be by them held in trust for my son A.; and this I intend as A.’s full share of my estate; and they shall from time to time use so much interest, as it accrues, for his decent support, but not for his excessive indulgence. Any balance of interest is to be invested.” There was a residuary clause specifying several sources from which the residuum might be derived, but none embraced the remainder of the fund given to A. In the disposition of the life estates in other jiarts of the will the intention of the testator was clearly expressed: Held, that the trustees, after paying over so much of the interest as was necessary for A.’s decent support, held the balance for his benefit and subject to such disposition as he might make thereof by will, or, in case of his intestacy, to go to his distributees.</p>

<p>Contract — Corporation—Subscriber to Capital Stock — Liability as Stockholder — Evidence.</p> <p>1. In order to, constitute a contract there must be a proposal squarely-assented to: an acceptance based upon terms varying from those offered is a rejection of the offer, and unless such counter-proposal is accepted and its acceptance communicated to the proposer there is no contract; therefore,</p> <p>2. Where a corporation wrote to H. offering to buy his land for a certain amount of its capital stock, and he replied assenting to the offer upon the condition that he should reserve all the wood and timber on the land, and the directors on the same day voted to accept his proposition but such acceptance was not communicated to him, and about nine months thereafter Ii. withdrew his proposition, and there was no evidence that the stock was delivered or title made or any further action taken by either party in pursuance of such correspondence: Held, that there was no contract by which PI. became a stockholder of the corporation.</p>

Civil action, tried before Brown. J., and a jury, at Ahgust Term, 1893, of Guilford ¡Superior Court. The facts appear in the opinion of Associate Justice Burwell. From a judgment for plaintiff defendant appealed.

In two actions brought by the plaintiff, the one against Harriet A. Keogh, a feme covert, Thomas B. Keogh and E. L. Gilmer, and the other against the two last.named, upon two separate notes signed by all of said parties, there was judgment in both cases for the plaintiff against the defendants, T. B. Keogh and Gilmer, at May Term, 1893, of Guilford Superior Court, before Bryan, J.

Special proceeding- for the partition of land and assignment of dower, commenced before the Cleric of the Superior Court of Guilford… Held: on the facts presented, that the purchase-money of the land was at the time the separate property of the defendant Mary A. Moore, and not that of her husband, and that she is entitled to the land, and should have declared a resulting trust in her favor, The defendants except to the conclusions of law by the Judge and to the judgment…

This aotioN was commenced by summons issued March 9, 1878, returnable to Spring Term, 1878, of Northampton Superior Court, in the name of tire State of North Carolina on the relation of Mary L. Coggins and husband, K. R. Coggins, Thomas C. Harris, Martha Harris and Addie Harris, as plaintiffs, against the defendants. The action was referred to R. 0. Burton, Esq., as referee.

Civil actior, tried at August Term, 1893, of NORTHAMPTON ¡Superior Court, before Bryan, J., and a jury, in which the main issue was whether the relation of landlord and tenant existed between the parties.

Civil ACTION, tried before Graves, J., at March Term, 1894, of Halifax Superior Court, on an agreed statement of facts of which those necessary to an understanding of the decision are set out in the opinion of Chief Justice Shepherd. From a judgment for the plaintiffs the defendants appealed.

<p>This was a petitioN of the plaintiff for an order directing a writ of certiorari to issue to bring up an appeal.</p>

Civil ACTION, heard before Bryan, J., at November Term, 1893, of Greene Superior Court, upon an agreed statement of facts, of 'which a sufficient synopsis is given in the opinion of Chief Justice Shepherd. The interpleader, Parker, who claimed a lien for advances to the mortgagor while in possession, but whose mortgage was improperly registered, appealed from the judgment declaring his mortgage invalid as against the plaintiff mortgagee.

This was a special proceeding, before John W. Blount, Clerk of the Superior Court of Greene County, for drainage of lowlands. Upon the coming in of the report of the committee appointed and sworn to lay off said ditch or canal John Patrick, Gatling Ormond, L. G. Rouse, Calvin Allen and Simon Coward excepted to the report of the committee.

<p>This was ail actiox by plaintiff against J. T. Sugg, Tax-collector of Greene county, to sustain the sale of land for taxes. The referee to whom the case was sent by the Court below found, as a matter of fact, that the plaintiff, in 1889, purchased certain land at a foreclosure of mortgages which had been assigned to him, and that at the time of the execution or assignment to him he hád no notice that there were any unpaid taxes due on the land for'the years 1881 to 1886, inclusive, but that prior to the foreclosure sale at which lie purchased he had notice that there was a claim for such taxes.</p> <p>The referee’s conclusions of law and the exceptions to the same are set out in the opinion of Associate Justice Burweel. From a judgment of Bryan, J., at November Term, .1898, of Greexe Superior Court, overruling the exceptions of defendant to the referee’s report, the defendant appealed.</p>

Civil actioN to restrain the defendant, who was Tax-collector of Greene county, for the collection of arrears of taxes for certain years, from selling land which plaintiff had bought on the foreclosure of a mortgage held by him, heard on exceptions to referee’s report before Bryan, J., at Spring Term of Greexe Superior Court.

Civil actioN, heard by Bryan, J., at Fall Term,' 1893, of Lenoir Superior Court. The action was upon promissory notes, and defendant, in his answer, averred that the notes were given for the purchase of land which the payee had contracted to convey but had no title thereto.

Civil actiox, tried at February Term, 1894, of Sampson Superior Court, before Brown, J., and a juiy.

This was a civil actiox, tried before Brown, J., on appeal from a Magistrate’s Court, at the January Term, 1894, of New ITaNOVER Superior Court. The plaintiff sued the defendant company to recover the sum of $112 alleged to be due the plaintiff lay the defendant for tire board of two workmen furnished by the plaintiff under an alleged contract with the defendant to pay for the same. The suit was brought to recover on a quantum meruit under contract executed.

This was an action begun before a .Justice and carried by appeal to the Superior Court of Neat Hanover County and heard at January Term, 1894, before Brown, J. A jury was waived and the action was heard by his Honor, who, upon the evidence submitted, found the following facts: That Reilly Burnett is a tax-payer of the city of Wilmington and owes poll-tax to said city for the year 1893 in the sum of $2.25; that the defendants are indebted to said Burnett in the sum of $14…

, at Chambers in Clinton, Duplin county, at February Term, 1894. The complaint was as follows : “ 1.

<p>Banks — Receivers—Insolvent ('orporation — Action in Receiver’s Name- — Creditors and Debtors— Set-offs — Deposits in Insolvent Bank.</p> <p>1. One, to whom an insolvent hank made an assignment of its assets and who on the same day and at the suit of creditors was appointed "receiver, held the assets after sncli adjudication, not by virtue of the deed of assignment but as an officer of the Court appointed to settle and wind up the affairs of such insolvent bank.</p> <p>2. Under section 0(58 of The Code a receiver of an insolvent corporation may .sue either in his own name or in the name of the corporation, and in such suit all the rights of the parties, both legal and equitable, pertaining to the matters set out in the pleadings, may he adjudicated.</p> <p>,‘5. While in the statutes relating to the winding- up of the affairs of an insolvent corporation no specific directions are given as to mutual debts and credits, yet under sections (569 and 670 of The Code, which provide that the Court shall make such orders as justice and equity shall require and direct how claims shall be approved, the claims: of an insolvent bank and its debtor, who is also a depositor, may be adjusted.</p> <p>4. Debtors to an insolvent bank are those who, at the appointment of a receiver, are liable to the bank for the payment of money, whether as principal or surety or whether the liability be matured or not; and creditors are those to whom the bank is indebted at the date of the appointment of the receiver, whether the debts are due. or not.</p> <p>5. After the appointment of a receiver a creditor may assign his claim, but such assignment is subject to the receiver's right to set-off claims the bank may have against the creditor, and if the assignee, of the claim is himself a debtpr of the bank he cannot use the assigned claim as a set-off.</p> <p>G. The effect of the insolvency of a bank closing its doors and stopping its business is to make all its deposit accounts and certificates of deposits at once become due without demand or notice, and in settling its affairs equity and justice require that the receiver shall deduct from the amount due a creditor all sums for which he is a debtor and shall allow a debtor credit for all sums for which he is creditor.</p> <p>7. Where one of several indorsers of a note of an insolvent debtor lo an insolvent bank is also a creditor of such bank he is entitled to avail himself of his claim in settlement of his proportionate part of his liability on such note, which will be less or greater according to the solvency or insolvency of the other indorsers.</p>

Tills was a civil actiox, tried before Brown, J., and a jury, at January Term, 1894, of the Superior Court of New Haxoveb.

Civil action, hoard at January Term, 1894, of Nkw Hax-ovkR. Superior Court, before Brown, J. By consent a jury trial was waived and the facts wore found by the Court. The action was to establish a preferential claim against the assets of the. Bank of New Hanover in defendants’ hands. The action was dismissed, and plaintiff appealed.

<p>Parol Evidence — Contract of Sale — Delivery Under Contract.</p> <p>1. Parol evidence is admissible in the trial of an action on a written contract to explain the meaning of abbreviations of words and figures contained therein.</p> <p>2. A contract for delivery of goods “about November 1” is complied with by delivery on November 10th.</p> <p>3. A contract for the sale and delivery of an article provided for payment on delivery and authorized the seller to draw for the amount; the article was shipped “C. O. I).” and the purchaser in a letter to the seller made no objections to the mode of delivery, but refused to receive the property on the ground that he was unable to pay for the same, as “money was scarce” and it “ cost so much”; the article remained in the express office three months when it was recalled by the seller: Held, in an action on the contract (1), that the fact that the article was shipped “(’. O. 1).” was, under the circumstances, immaterial; (2), that .after the positive refusal of the defendant to receive and pay for the article it was not incumbent on plaintiffs to longer keep it at the place of delivery agreed upon.</p>

<p>Í'orporation — ¡Subscription to Stock — Stockholder.</p> <p>1. Where a person 1ms agreed to "become a stockholder in a corporation and has enjoyed the benefits and privileges of membership he cannot, in a suit by the corporation to recover his unpaid subscription, set up as a defense that the corporation was not legally organized.</p> <p>2. The fact that a corporation avails itself of only one of several privileges granted by its charter — that is, manufacture all the products it is permitted to manufacture — does not invalidate the act of incorporation.</p> <p>3. Where articles of agreement signed by a subscriber to the stock of a' corporation provided that the installments falling due on the subscription should bear eight per cent, interest, such rate continues until actual payment.</p>

This was a civil action', tried before Graves, J., at Fall Term, 1890, of Robehox Superior Court.

This was an action to foreclose a mortgage, at the February Term, 1890, of the Superior Court of Richmond county, and a decree of foreclosure was regularly entered against the defendants and commissioners were appointed to sell the land for cash to the highest bidder and to report said sale to the Court for further directions.

Civil aotioN, tried before Connor, J., and a jury, at September Term, 1893, of RICHMOND Superior Court. From a judgment for the plain tills the defendant Stewart appealed. The facts appear in the opinion of the Chief Justice.

At August Term, 1893, of Moore Superior Court, before Connor, J., the plaintiff obtained judgment against the defendant, who appealed and afterwards sued out a writ of certiorari, in the return to which it appeared that the trial Judge to whom the papers were sent to make out the case on appeal had resigned before they were so sent and that he had misplaced his trial notes and papers and could not state the case on appeal.

<p>Pleading — Frivolous Answer.</p> <p>In an action begun as a proceeding for the re-allotment of homestead, but which, by consent of the judgment creditor and debtor and tlie mortgagees of the latter, had become one for the foreclosure of mortgages, the plaintiff caused the wife of the judgment debtor to be made a party defendant for the purpose of enabling her to assert any rights she might have; she filed an answer which tended to revive issues which had been finally adjudicated between plaintiff and her husband instead of setting up any rights of her own: Held, that such answer was immaterial and was properly disregarded by the Judge below. ></p>

Under a former decree of the Court (following the directions of the opinion of the Supreme Court as reported in Vanstory v. Thornton, 112 N. 0., 196) the land described in the pleadings and in the several mortgages mentioned was sold by commissioners appointed for that purpose, and a report of sale made to Cumberland Superior Court at Fall Term, 1893.

At? August Term, 1893, of NokthaMutoN Superior Court, liits Honor Bynum, J., upon the failure of the trustee to give the bond required, appointed a receiver to take charge of the assigned estate pending an action to set aside the deed for fraud. From this order the defendants appealed.

Aftiox to declare deed void for fraud, and to sell property (therein conveyed) under order of Court to pay plaintiff’s debt, and to restrain trustee from disposing of the same pending the litigation, heard at December Special Term, 1893, of Norti-iaMPtoN Superior Court, before Whitaker, J., and a jury. ■ It appeared in evidence that on the 22d day of.

ActioN on tlio official bond of E. E. Roberts, as Register of Deeds for Northampton county, for the penalty of $200 given by section 1816 of The Code, commenced February 20,1892, and tried at August Term, 1893, of NORTHAMPTON Superior Court, before Bynum, J. It was admitted that on the 21st day of January, 1890, the defendant issued a license for the marriage of Ida Joyner, daughter of Poster Joyner, to Charles Lewis, and that under the license the parties were married, Ida…

This was a civil actiox, tried before Connor, J., and a jury, at August Term, 1892, of the Superior Court of Guil-ford County. By consent of the parties the Court found the facts upon the pleadings and the testimony, submitting to the jury the issue in regard to damages.

Civil ACTION, beard at December, 1893, Special Term of NORTHAMPTON Superior Court, before Whitaker, J., upon exceptions to a referee’s report. There bad been an order of arrest issued and served in proceedings ancillary to the main action, and at said term the defendants asked to have their motion to vacate the order of arrest continued, which was allowed, though judgment on the money demand was rendered for the plaintiffs.

This ACTION was begun 30th January, 1892, by the plaintiff as administrator of four deceased legatees under the will of Susannah Carr, deceased, against the executors of the deceased executor of said will for an account, and to recover the legacies, and tried at the Special Term, 1893, of the Superior Court of Randolph, before Boykin, J. The evidence was that the will of Susannah Carr was proven at the August Term, 1859, of Randolph County Court, and that Alfred Brower, the…

Civil actioN, tried before Battle, J., at February Term, 1894, of Rowan Superior Court. Held: as the right of the feme plaintiff to the property bequeathed in said will to the defendant in trust for her is absolute, there being no ulterior limitation and no continuing duty to be performed by said trustee, and no provision in the said will for him to exercise acts of government over said property, she having the entire…

PktitioN of defendants to rehear the case decided at this Term (114 N. C., 58) upon the ground that the Court overlooked the exception to the refusal of the Judge below to remove the cause to the Federal Court upon the motion of the defendants, Hardy, trustee, and Grandy & Sons.

Civil actiox for the recovery of land, tried before ¡VhitaJcer J., at November Term, 1893, of Rowax Superior Court, ou a case agreed, the material facts of which appear in the opinion of Associate -Justice Clark. There was judgment for the defendant, and the plaintiff appealed.

Civil actiox, tried before Whitaker, J., and a jury, at November Term, 1893, of Iredell Superior Court.

This was a civil action, tried at Fall Term, 1893, of the Superior Court of Davidson County; before Whitaker, J., and a jury. The complaint was as follows: The plaintiff complains and alleges: “1.

Civil action, heard by Whitaker, f., at November Term, 1893, of Iredell Superior Court, upon exceptions to the report of a referee. The plaintiffs appealed from the judgment of the Court sustaining certain exceptions of the defendant to the report. The facts sufficiently appear in the report of the same case in 103 N. C., 19, and in the opinion of Associate -Justice Burwell.

This was an actiox brought by Jasper Glaybroolc and others, citizens of the town of Stoneville, to the Fall Term of the Superior Court of Rockingham County, against the Board of County Commissioners of Rockingham county, to test the validity of an election held in said town under chapter 87 of the Laws of 1887, for a subscription of $5,000 to the capitalstock of the Roanoke & Southern Railway Company, and for injunctive relief against the issue or sale of such bonds, and…

The plaintiff caused summons to bo issued by the Clerk of Forsyth Superior Court and to be served on the defendant corporation in New Orleans by an officer of the State of Louisiana, as provided for in cli. 120, Acts of 1891.

<p>Arrest and Bail — -Discharge—Insolvent—Exemptions— Practice — Appeal.</p> <p>1. A defendant held to arrest and bail can be discharged only (1), before trial, by giving bond or making deposit; section 298 of The. Code; (2), at the trial, by the issue'of fraud or allegations of tort being found in his favor; section 316 of The Code; (3), after (or before) judgment against him, by payment or giving notice and surrendering all property in excess of fifty dollars; section 2972 of- The Code.</p> <p>2. Where a debtor arrested and imprisoned for fraud did not tender the oath required by sections 2968-2072 of The Code to the effect that he had not property of the value of fifty dollars, nor surrender his homestead and personal property exemptions, nor file the petition, nor give the notice required by ch. 27, Vol. II of The Code, he was improperly discharged upon an affidavit that he had theretofore made an assignment of all his property for the benefit of creditors and that he was, at the date of the affidavit, insolvent and not worth -more than the exemptions allowed him by law as set apart to him.</p> <p>3. Inasmuch as an order vacating an order of arrest is one “affecting a substantial right” an appeal lies therefrom.</p>

<p>Injunction — Sale of Land Under Deed of Trust — Rights of Heirs — Administrator—Injunction Bond — Infant Parties.</p> <p>1. Where J. conveyed real estate and personalty to G., taking in return the latter’s bond secured by a deed of trust on the land, and after the death of'J., who left no estate excepting the bond, G. recon-veyed the property to the heirs and next of kin of J. in consideration of the surrender of his bond, and a public administrator, having qualified as administrator of J., requested the trustee to sell the property under the deed of trust and the heirs of ,T. brought suit to enjoin the sale, alleging that there were no debts, the sale will be enjoined until by a reference it may be ascertained whether there are any debts due by the intestate’s estate and the amount thereof, if any, as well as the charges of administration, and an opportunity given to the plaintiffs to pay the same to the administrator; whereupon, in case of such payment, a decree may be had for the cancellation of the deed of trust and a division of the property among the owners, and in ease of default in such payment the injunction may be dissolved and the trustee directed to sell.</p> <p>2. In such case, if it should appear from the reference that there are no debts duo by the intestate’s estate, there should be a decree directing the cancellation of the deed-of trust upon the payment of the administration charges only, for the trustee will be entitled to no commission if there be no sale.</p> <p>3. The requirement of section 341 of The Code, that a plaintiff shall give an undertaking before an injunction can be granted, is mandatory.</p> <p>4. The simple naming of “the children of Alexander James'and the children of Calvin James” as plaintiffs does not have the effect to make them parties as required under the rules of practice in the Superior Courts (17 and 16 Clark’s Code. p. 724), which point out the proper mode by which minors may sue or answer.</p>

Civil actiok, tried at October Term, 1893, of Edgecombe Superior Court, before Bynum, J. The action was brought for damages for an alleged breach of contract to deliver a certain number of logs of certain specified sizes for five years.

Civil actioN, heard before JBynwni, J., and a jury, at Fall Term, 1898, of Hampas: ¡Superior Court.

This was a civil actjoN, hoard on exceptions to the allotment of homestead to J. R. and E. B. Batts, before Hoke, J., at November Term, 1893, of Wmsox Superior Court, upon agreed facts, as follows: “1. -An execution was issued from Wilson.

MotioN to continue a restraining order to the hearing, heard before Mclver, J., at Chambers in Hendersonville, June 8, 1893. ■ The complaint alleges that the defendant destroyed certain bridges belonging tó the plaintiffs across the Catawba river and Johns river, in Burke county, by floating logs in said rivers, and that the defendant threatens to continue to float logs therein, and in Upper creek, also in Burke county, and that the result of such threatened floating will be…

Civil action, tried before Boykin, J., and a jury, at .January Special Term, 1894, of Caldwell Superior Court. The defendant AY. P. Reinhardt testified that he signed the two notes hereinafter set out as surety, and his evidence was not contradicted. The plaintiff testified that at the time he became the owner of the said notes he had no knowledge or notice that said AY. P. Reinhardt was surety thereon.

SPECIAL PROCEEDING for the establishment of boundary lines under ch. 22, Acts of 1893, heard before Brown, J., at Fall Term, 1893, of OraNGE Superior Court.

This was a civil actiox, tried at Special Term, 1894, of Caldwell Superior Court, before Boykin, J., and a jury. The plaintiff brought his action to recover a lot in the town of Morganton, Burke county, N. C., and, second, to recover a certain frame building situated on said lot, and certain tools and other personal property contained therein.

This was an ACTION on account, commenced before a •Justice of the Peace and brought by appeal to the Superior Court of Rutherford County and tried before Armfield, J., at Special Term, 1894. It appeared that plaintiff, who was a retail merchant, claimed to have sold to defendants on different dates a number of small items of goods, none of which items amounted to more than $25.

Civil actioN, tried at Spring Term,. 1894, of McDowell Superior Court, before Shuforcl, J., and a jury. The case has been before this Court twice (109 N. C., 401, and 113 N. C., 417), and the facts stated in the reports of those appeals are substantially the same as govern in this appeal. There was judgment below for the plaintiff, and defendant appealed.

<p>Civil action, tried before Boykin, J., and a jury, at January Special Terra, 1894, of Caldwell Superior Court.</p> <p>The plaintiff introduced deeds to him and those under whom he claimed running back to 1869 and embracing the locus. Among those under whom he claimed were one Barringer and one Barrier.</p> <p>. I. N. Beard testified: “I am County Surveyor. I have surveyed the land conveyed in the above deed; the land granted to the defendants is embraced in the 4‘25-acre tract conveyed to Hamilton, save 7-J- acres; the defendants’ grant is for 152 acres; I surveyed it; I saw signs of plant beds on the 425-acre tract; the defendant May directed mo to run the line of the grant so as to exclude the plant beds; he said he wanted to keep off any one’s possessions, and he went ahead and when he saw a bed lie would turn me aside. The 425 acres were all forest land, except an old clearing around the shoals; the clearing had not been cultivated ; the timber cut on it was decayed; there were no signs of a fence. Tobacco beds are where the seed are sown to make plants.”</p> <p>Witnesses testified for the plaintiff that the land was very well adapted to the growing of tobacco, and that they had seen tobacco plants growing in beds in the forests. I. T. A. Spencer testified that in 1870 he burned .a tobacco bed on the land with the permission of Barringer, and from 1871-75 he used the same bed with the permission of Barrier. He said: “The stock law was adopted two years ago; the beds were fenced before that. I quit raising tobacco ten or twelve years ago. •Then I burned beds ten years in succession by Barrier’s consent. In 1870 I burned a bed 20 x 20 feet. I put a rail and pole fence around it. In 1871 I burnt about same place, taking in some new land and leaving off some of the old bed. I saved the rails each year for the next. Each year I’d take the edges of the old bed and burn new land. Perhaps I’d keep half the old bed. In 1873 I burnt a large bed ; think I was on new land entirely then. In 1874 used same bed. In 1875 burnt a new one. I burnt bj1, permission of Barringer two years; the other years by permission of Barrier. ' Don’t know that any one of the beds was on the land • granted to defendants. Tobacco beds are usually 10 or 15 by 10 or 15 feet.”</p> <p>W. F. Deal testified: “ I have seen tobacco beds on the 425 acres; I remember one year, 1871, distinctly; Spencer had charge of the land; I don’t know whoso land it was. After 1871 Spencer gave me permission to burn a bed there one year; can’t tell what year it was. I don’t know whose beds they were. The bed I saw there in 1871 was in a swamp. I think it was fifty or sixty square rods. There wore logs and poles around it and it was covered with brush. It appeared that the logs and polos were put there to keep the brush from falling away from the bed. I burnt my bed one-half a mile from the bed I saw in 1871; part was on an old bed, part wras on new land. A great many people burnt beds on the 425-aero tract; quite a large place was taken up thus. It is fine tobacco land; there are the finest shoals in the county there. There has been no cultivation of any part of the land. Hamilton worked there two or three weeks. There is the finest body of timber on it in our county. The land is peculiarly adapted to growing tobacco" plants. Spencer gave mo permission to burn my bed.”</p> <p>B. M. Satterthwaite testified: “I have known the boundary since 3 872 ; I burnt my bed there that year by permission of Barringer. The bed was 10x15 yards; it was a new place. I fenced the bed to protect it from stock. I burnt th,e land, grubbed it, then sowed the seed. Got the wood to burn it from this land. There have been beds burnt on it every year since. Mj1" father has burned bods on it every year since save 1880 and 1881, when he burnt on my land. Sear, Teague, Spencer and Pressly have burnt beds on it every year since 1871. Father burnt there by permission of Barringer and Barrier. Father and I burnt beds there till 1877, then I burned on my own land. We burnt our beds on the same places all the time. We had two beds. We sowed seed in February and took up the plauts in May. It is good com and wheat land. Tom Eaton put Mrs. Beach there twelve years ago; he built a house for her and planted two or three acres in wheat. She only remained there two years. There is a little house on defendant’s .grant; I saw it there about a year ago. The fence remained around our bed during the year until we got ready to burn again; then it was taken down and after the burning was replaced.”</p> <p>There was other testimony by other witnesses to the same effect, and also that plaintiff had paid taxes on the land since he got his deed.</p> <p>Defeildants introduced a grant from the State to Morgan May, C. S. Hinkle and Julius Icard, dated 20th September, 1892.</p> <p>The land granted is embraced in the deed to plaintiff.</p> <p>There was testimony on part of the defendants that there wore no burnt bods, etc., on the grant.</p> <p>The defendants requested the Court to instruct the jury that the plaintiff’s possession was not of such character as to perfect his defective title. The Court intimated that the jury would be so instructed. The plaintiff submitted to a nonsuit in deference to this opinion of the Court and appealed.</p>

Civil action, tried at Spring Term, 1893, of Cleveland Superior Court, before Armfield, J. Upon the reading of the complaint and answer and after the jury was impaneled his Honor held that plaintiff was entitled to recover upon the pleadings, and gave judgment accordingly. No issues were submitted. The defendants appealed.

PktitioN for the sale for partition of land, filed before the Clerk of Mecklenburg- Superior Court and, upon demurrer being filed by defendants, transferred to the Judge of the District and heard by consent before Melver, J., at Chambers in Hendersonville, December 5, 1893. The petition alleged that Joseph McLaughlin by deed dated in January, 1881, conveyed the land described in the petition to the feme plaintiff, Annie M. Heath, “and her children.” “ 2.

Civil actiox to recover land, tried before Me Ivor, J., and a juiy, at Fall Term, 1893, of Rutherford Superior Court. The complaint was as follows: “1. That they are the owners and are entitled to the immediate possession of a tract of land lying in Rutherford county, N. C., joining lands of William Miller, James Roberts and others, where defendant now lives, containing about thirty-three acres. “2.

Action for the recovery of land, tried before Armfield, J., and a jury, at Special Term, 1894, of Rutherford Superior Court. The plaintiff claimed under a Sheriff’s deed made in pursuance of a sale under execution on a judgment of a Justice of the Peace rendered on January 17, 1887, and docketed on January 18, 1888. There was a verdict for the plaintiff, and from the judgment thereon the defendants appealed.

This was an actiox of ejectment, tried before Armfield, J., and a jury, at Spring Term, 1893, of the Superior Court of Ruthekfoud County. The plaintiff and defendants both claim under and through A. Mooney.

Civil action, heard before Mclver, J., at Fall Terra, 1893, of Rutherford Superior Court. The action was begun before a Justice of the Peace for the recovery of the value of sixteen bushels of corn and three bushels of wheat, due as rent on land conveyed to the defendant by the plaintiff P. N. Long.

This was a rule upon S. Wittkowsky, purchaser of the land described in the petition for partition, to compel him to comply with the terms of the sale, heard first before the Clerk of Mecklenburg Superior Court and then by appeal before Boykin, J., holding the Courts of the Eleventh District, at Chambers.

Civil'ACTION, heard before Armfield, J., and a jury, at Special Term, 1894, of Rutherford Superior Court. The action was commenced in a Justice’s Court for the recovery of the sum of $138.90, claimed by plaintiff against defendants as indorsers on two several promissory notes under seal. Said notes were executed by J. W. Davis to John A. Powell, and on the back of each are the following words, to-wit: “ I assign over the within note to S. M. Powell.

Civil actiox for an accounting as to the amount due the defendant Hendrickson under a deed of trust executed hy Cannon and wife to the defendant McCape,'and for an injunction restraining the trustee from selling the property conveyed by tire deed of trust. A restraining order was issued by Judge Bhuford on the 12th January, 1894, at Asheville, returnable before his Honor J. I).

This was a civil actiox, tried before Graves, J., and a jury, at July Special Term, 1893, of Cherokee Superior Court, upon the pleadings, issues, exhibits and other evidence offered on the trial, as.follows: The plaintiffs offered and read in evidence note and mortgage deed for two town lots, Nos. 7 and 8, described in complaint, made to J. J. & J. E. Maddox by A. J. Arp and wife, dated 23d August, 1890, and registered on same day; also a deed from E. M. Kilpatrick and wife…

MotioN in the cause to set aside judgment, etc., in Mam-«on Superior Court, heard before Armfield, J., at Chambers in Asheville, August 16, 1892. The facts appear in the opinion of Associate Justice ■Clark.

<p>PETITION of plaintiff to rehear the case decided at Spring Term, 1893, and reported in 112 N. C., at page 634.</p>

, in favor of the plaintiff against the defendants Eller and Roberts, in default of answer, at December Term, 1893, of Buxcojiue Superior Court. The action was upon a promissory note signed by all of the defendants, and was brought to December Term, 1893, summons .having been served on all the defendants. The defendant Black filed an answer purporting to be the answer of all the defendants, and the case was continued as to him. The defendants Eller and Roberts appealed.

Civil ACTION, brought in the Superior Court of HeNDER-soN County to correct a judgment rendered in Transylvania Superior Court.

Civil action, tried before Armjield, ./., at December Term, 1893, of BuxcoMbk Superior Court. A jury trial was waived, and tlie Court found the following facts: “1.

<p>Practice — Appeal—Dismissal—Motion to Re-instate.</p> <p>1. Where an appeal was dismissed because not docketed before the perusal of the district to which it belongs, as provided in Rule 17, and appellant moved to re-instate on the allegation that he had directed the Clerk to send up the transcript and paid the fees therefor in advance, the motion will be denied, for, although such allegation would have been a sufficient answer to the motion to dismiss if affidavit had been filed to such effect and a certiorari applied for, yet it was laches not to interpose such affidavit and show excuse for the failure.</p> <p>2. Practice in regard to docketing appeals discussed by Clark, J.</p>

Civil, ACTION, tried at August Term, 1893, of BüNCO.mbe Superior Court, before-Armpeld, J., and a jury, the purpose of the action being to subject collateral secuiitj! to be condemned for the payment of a debt. The plaintiff introduced a deed of trust from J. R. Grapo and William Elliott Gonzalles and wife, dated lOtli of February, 1891, to Duff Merrick, trustee, made to secure to the plaintiff two notes, one for $2,000 and one for $10,600.

Civil action, heard, upon demurrer to the complaint, at Fall Term, 1893, of Cherokee Superior Court, before Arm-field, J. The action sought to have a note executed by the defendants declared a charge upon the separate personal estate of the feme defendant, a married woman. The complaint alleged : *“1.

This was a Motion to vacate a warrant of attachment, heard before Armfield, J., at December Term, 1893, of Swain Superior Court, in an action pending in .Jackson county. The plaintiff, R. J. Cook, began his action against the defendant and filed his affidavit in attachment upon which a warrant was issued and levied upon certain real estate in Jackson county on the 7th of October, 1893.

<p>Practice■ — -Appeal Bond, failure to file — Motion to Dismiss— Notice.</p> <p>1. The discretion vested in this Court by ch. 135, Acts of 1889, to permit an appeal bond to be filed here will not be exercised unless reasonable excuse be shown for the failure of appellant to file it below.</p> <p>2. No notice is required to be given of a motion to dismiss an appeal when no appeal bond has been filed; the twenty days’ notice required, for a motion to dismiss, by ch. 121, Acts 1887, applies only when there is an irregularity in the bond or in the justification of sureties.</p>

Civil actioN, tried before Hoke, J., and a jury, at Spring Term, 1892, of BuxcoMise Superior Court. The complaint was as follows: “1. That the plaintiff Julia E. Wolfe, wife of plaintiff W. 0. Wolfe, is now, and was at the time hereinafter mentioned, the owner in fee-simple and in possession of certain lot lands in the city of. Asheville, county of Buncombe, and State of North Carolina, bounded as follows (here follows description). “ 2.

Action- to recover land, heard before Graves, J., and a jury, at July Special Term, 1893, of Cherokee Superior Court.

Civil aotiox for the recovery of land, tried at July Special Term, 1893, of Chkrokice Superior Court, before Graves, J., and a jury. The plaintiff offered in evidence: “1. Deed from G. AY. Akin and wife to J. AY. Blackwell, dated December, 1889, and registered June, 1893. “ 2. Deed from Blackwell and wife to J. E. Graham, dated January 8, 1891, registered January 30, 1891. “3. Deed from J. E. Graham and wife to J. AV.

The defendant Sprague, in August, 1893, being engaged in tlie drug business in Waynesville, sold a portion of his stock to the plaintiffs, and in the contract was the following stipulation : “And it. is further agreed that for the space of three years from the date of this contract the said John F. Sprague will not enter into the drug business in the town of Waynesville, and the said John F. Sprague does by these presents covenant and agree, with the said Jefferson Reeves &…

AotioN for the recovery of land, tried before Armfield, J., and a jury, at August Terra, 1893, of BUNCOMBE Superior Court. Upon the return of a verdict by the jury the plaintiff proposed to the defendant that the verdict should be set aside bjr consent of the parties, and the Court, upon such consent, made'an order setting the verdict aside and granting a new trial.

This was a civil action, tried before Armfield, J., at Pall Term, 1893, of the Superior Court of Cherokee County. The defendant demurred to the complaint of the plaintiffs and his Honor sustained the demurrer and gave judgment against the plaintiffs and Jas. C. Axley on their prosecution bond for the costs of the action. The plaintiffs excepted to the ruling and judgment and appealed to the Supreme Court. The plaintiffs complained as follows: “1.

This was a proceeding, instituted by the plaintiff against T. J. Gash, before the Clerk of' the Superior Court of Henderson County. H. R. Holden and AY. J. Holden, having made affidavit that they were claimants of the land which plaintiff asked should be subjected to the lien of the judgment, were made parties defendant.

Action of claim and delivery, tried before Ármfield, J., and a. jury, at August Term, 1893, of BuNCOMbb Superior Court. The following issues were submitted to the jury: . “ 1. Did the defendants make the written contract set forth in the complaint with the plaintiff? Answer, Yes. “ 2. Is the plaintiff the owner of the goods which it claims in the complaint and entitled to the possession thereof? Answer, Yes. “ 3. What is the value of said goods? Answer, $794.23. “ 4.

ActioN brought by E. B. Atkinson and others to restrain defendant administrator and others from selling land under a deed of trust, heard before Mclver, J., at BüNCOMBE Superior Court. From an order continuing the injunction to the hearing the defendants appealed. The affidavit of plaintiff E. B. Atkinson, which was supported by affidavits of C. E. Graham and others similar in substance, was as follows: “1.

, at August Term, 1893, of Buncombe Superior Court. It' being agreed by all parties thereto that the Court should find the facts and pass on the same without the intervention of a jury, his Honor found the following-facts, to-wit: “1. That the defendant, The City of Asheville, is a municipal corporation, chartered by an act of the General Assembly of North Carolina and certain acts amending the same, all of said acts being hereby made a part of these findings of fact. “2.

This was an appeal by A. J. Leatherwoocl froin.au order of the County Commissioners of Cherokee county laying-out a public road which the petitioners sought to have established, heard before Graves, J., and a jury, at July Special Term, 1893, of Cherokee Superior Court.

<p>Dissenting opinion of Associate Justice Clark (filed after the case reported on page £Sf of this volume iuas printed).</p>

PROCEEDING for the condemnation of right of way for a railroad over defendant’s land — the area of the land sought to be condemned being about eleven acres — heard on affidavits and on the application of the defendant for injunction, etc., before Bynum, J., at Chambers at Newbern on the 6th December, 1893.

AotioN for damages to land, tried at November Special Term, 1893, of Bertie Smperior Court, before Bynum, J. The facts of the case appear in the report of the former appeal (109 N. C., 52).

Civil actioN, heard before Winston, J., at December Term, 1893, of Forsyth Superior Court. The plaintiff sought to recover damages for the negligent killing of her intestate by the defendant.

This was a civil ACTION, tried at Spring Term, 1893, of the Superior Court of NORTHAMPTON County, before Hoke, J., and a jury. The following issues were submitted to the jury: “ 1. TTas the plaintiff injured by negligence of defendant ? “2. Did plaintiff’s own negligence contribute to his injury? “3. Notwithstanding the contributory negligence of ■ plaintiff could defendant have avoided the injury by the exercise of ordinary care and prudence? “4.

Civil x\.ctioN for damages, brought by the plaintiff against the defendant for personal injury suffered on the morning of December 14, 1889, at Durham, N. C., tried before Broiun, J., and a jury, at Augut Term, 1893, of Guil-ford Superior Court. The plaintiff was a brakeman on a “mixed train” run-ningbetween Raleigh and Greensboro on December 14,1889, of which Capt. C. B. Guthrie was the conductor.

Civil actiox, pending ip Buxcombe Superior Court, heard before Hoke, J., at Chambers at Bryson City, June 13, 1892, on motion to dissolve the restraining order theretofore issued. In considering the affidavits and exhibits filed in the cause the Court found the facts to be as follows: “ 1.

AotioN for damages for the negligent killing of plaintiff's intestate by the defendant company, tried before Bynum, J., and a jury, at Spring Term, 1893, of Washington Superior (lourt. The issues submitted to the jury and the responses were as follows: “1. Was Joseph Smith killed by the negligence of the defendant? Answer, Yes. “2. Did the said Joseph Smith, by his own negligence, contribute to his own death? Answer, Yes. “3.

ActioN, tried at Fail Term, 1893, of Hyde Superior Court, before Graves, J., on complaint and demurrer, which were as follows: “1.

INDICTMENT for larceny, tried at Fall Term, 1893, of Bertie Superior Court, before Bynum, J., and a jury. It appeared on the trial that the defendant took some meat from a store to a cart belonging to Godwin, but to which his own oxen were hitched. Pie claimed that Charles Godwin asked him to cany out the meat, which Godwin said was bis. • The meat was discovered under the shucks in the cart.

<p>INDICTMENT, tried at Fall Term, 1893, of Gates Superior Court, before Graves, J.</p> <p>The defendant was charged with intending to cheat and defraud J. F. Bond, as Treasurer of the county, out of the money, goods and chattels in the custody of said Bond, and that he unlawfully, feloniously and designedly did falsely pretend to the said Bond, as said Treasurer, that a certain paper-writing in Avords and figures, etc., was a true and genuine order for the payment of money, etc., and .that he owned the same and had the right to transfer it to the said Bond, as Treasurer, and receive the money therefor to the amount mentioned in said paper-writing, being $41.32, whereas in truth and in fact, etc.</p> <p>Upon the trial the jury found the defendant guilty, and he .appealed from the judgment pronounced thereon.</p>

This was a CRIMINAL action, instituted before the Mayor of the town of Washington and tried on appeal in the Superior Court of Beaufort County, before Graves.

<p>Indictment for Fornication and Adultery — Marriage Evidence— Proof of Foreign Latos — Certificate of Foreign Marriage— Ees Qestie.</p> <p>1. Any person who claims to know the provisions of the common or unwritten laws of a foreign country may, under section 1338 of The Code, testify to and explain them before Courts and juries (Shepherd, C. J., dissenting).</p> <p>2. A paper-writing purporting to be a contract of marriage, and to be signed by the contracting parties at the time of the alleged marriage, is admissible, in the trial of an indictment for fornication and adultery, not only in corroboration of a witness who testified to the facts, but also as substantive evidence to prove the marriage.</p> <p>3. Where, in the trial of an indictment for fornication and adultery, a photograph of defendant was introduced, on the back of which, signed with his name, were words purporting to be a marriage to his wife and indicating that the one to whom the message was addressed was married, and the alleged wife (prosecuting witness) testified that the writing was the defendant’s and that the photograph had been sent to her: Held, that such writing was admissible as an acknowledgment of marriage.</p> <p>4. "Where, in the trial of an indictment for fornication and adultery, the material issue was whether the prosecuting witness and defendant were married in a foreign country, a certificate by the officiating rabbi, attesting the marriage and certified by the signature and seal of the official minister of such foreign country, although inadmissible as a record or an independent declaration of the rabbi, it was competent as a part of the res gestee, to support the testimony of the prosecuting witness as to the fact of the marriage.</p>

The defendant was indicted for disposing of mortgaged property, and, upon his trial before Ilolce, J., and a jury, at Fall Term, 1893, of Wilson Superior Court, was acquitted. The Court found that the prosecution was not for the public interest, and adjudged that the prosecutor, C: A. Young, of the firm of C. A. Young & Bro., who was marked on the bill as prosecutor, should pay the costs, whereupon he appealed.

<p>Indictment for Arson — Criminal Law — Evidence—Witness-Refreshing Memory from Memorandum— Evidence of Character.</p> <p>1. Where a witness is impeached, either by contradictory testimony, on cross-examination, or by attack upon his character, his declarations to a third person, made soon after the transaction, may be stated by himself and afterwards shown by such third person in way of corroboration.</p> <p>2. A witness may be compelled, at the instance of a party who is examining him, to inspect a writing which is present in court and in his own handwriting, or if' it otherwise appear that by referring ■to it he can refresh his memory concerning the transaction to which it relates.</p> <p>3. Where a writing relates to collateral matters and a defendant on trial could derive no benefit from compelling a witness for the prosecution to inspect it, the refusal of the Court to compel witness to refresh his indistinct recollection of the matter is a harmless error and not reversible.</p> <p>4. Where, in a trial of defendant for arson, the prosecuting witness testified that the defendant told him that he sold the cotton taken from the barn to W., who W'as neither a party nor witness, it was not error to refuse to allow the defendant to prove that W. was a man of good character.</p>

The defendants applied for a writ of prohibition to issue to Thomas Badger, Mayor of the city of Raleigh, upon the ground that the city ordinance for the violation of which they were being tried was invalid and because a trial by jury had been refused them.

<p>INDICTMENT, tried at September Term, 1893, of Wake Superior Court, before Shuford, J.</p> <p>The indictment -was as; follows:</p> <p>“The jurors for the State, upon their oaths, present that J. H. Daniel, late of the county of Wake, wickedly devising and intending _ to cheat and defraud, on the 27th day of August, 1893, with force and arms at and in the county aforesaid, unlawfully, knowingly, designedly and feloni-ously did, unto one Mark Barker, falsely pretend that certain medicine, to-wit, one ounce thereof in the possession of the said Mark Barker, was too strong to be applied to a sore on the face of the said Mark Barker, whereas in truth and in fact the said medicine was not too strong to be applied to the sore aforesaid; by means of which said false pretense he, the said J. H. Daniel, feloniously, knowingly and designedly did then and there unlawfully obtain from the said Mark Barker the following goods and things of value, the property of said Mark Barker, to-wit, one ounce of medicine, with intent then and there to defraud, against the form of the statute,” etc.</p> <p>After a verdict of guilty the defendant moved in arrest of judgment because the bill did uot charge an indictable offence, but merely the expression of an opinion as to the strength of the medicine.-</p> <p>The Court overruled the motion and pronounced judgment, and the defendant excepted and appealed.</p>

INDICTMENT for perjury, tried before Shuford, J., and a jury, at January Term, 1894, of Durham Superior Court. On the trial it appeared that at a previous term of the Court the defendant and his wife were tried for an assault and battery upon one Dooms, and that the defendant had testified in that trial that he had no knife in his hands during the fight with Dooms, but that he struck Dooms several times with his fist.

The defendant was convicted of larugNy at November Term, 1893, of Granville Superior Court, before Winston, J, and was allowed to appeal without giving bond for costs. In. this Court the Attorney General moved to dismiss for want of appeal bond.

The defendant was convicted in Magistrate’s Court for failure to work on public road, the warrant charging that he willfully and unlawfully failed and refused “to attend ancl work on the roacl leading from Adams’ creek to South river, lie having been lawfully summoned to work thereon, and he, the said John E. Gillikiu, being-at the time of such failure and refusal one of the hands assigned to work on said road.” Defendant appealed to the Superior Court, and when the case was…

This was a uaktahdy prooeedixg, tried before Battle, ,/., and a jury, at December Term, 1893, of’Moore Superior Co.urt ou appeal from a Justice’s Court. Witnesses were introduced and testified in behalf of both sides.

IkdictMENT for an affray, tried before Whitaker, J., and a jury, at Fall Term, 1893, of Rowan Superior Court. The defendant Barringer tmd another were convicted, and from the judgment on the verdict the defendant Bar-ringer appealed.

INDICTMENT for embezzlement under section 1014 of The Code, tried before Battle, J., at February Term, 1894, of Rowan Superior Court. The facts appear in the opinion of Associate Justice Clakk. The defendant was convicted, and appealed.

INDICTMENT under section 985,'subsection 7 of The Code, for an attempt to burn a dwelling-house, tiled before Winston, J., at December Term, 1893, of Forsyth Superior Court. The defendants were convicted, and appealed. The facts appear in the opinion of Associate Justice Clark.

CuiMixal action, tried before Boykin, at Spring Term, 1893, of Forhytii Superior Court, on appeal from the judgment of the Mayor of the city of Winston.

This was an INDictjiext for carrying a concealed weapon (a pistol), tried before Winston, J., at November Term, 1893, of RocicixghaM Superior Court. Witnesses for the State testified that they saw the defendant off his own premises with a pistol concealed about his person; that this was at a mill-pond.

CRIMINAL ACTION, tried at August Term, 1898, of UNION Superior Court, on appeal from a judgment of the Mayor of the town of Monroe. The defendant was charged with the violation of an ordinance of the town.

IxdictMENt for larceny, tried before Mclver, J., and a jury, at Fall Term, 1893, of CLEVELAND Superior Court. The defendant was charged with stealing two mule shoes, the property of R. H. Green and others. For the State, Toliver Green testified that on August 9th the defendant came to'the store of R. H. Green & Bro., of which witness is a member, to buy a pair of mule shoes on credit.

The defendant was tried and convicted at Fall Term, 1893, of MadisoN Superior Court, before Armfield, J., on an indictment under section 1062 of The Code, and appealed. Without default of his own (as defendant alleges) the case on appeal was not settled by the Judge below, and at this (February, 1894) Term of this Court he applied for a cer-tiorari, but di-d not cause the transcript of the record to be docketed.

CrimiNal actioN, tried on appeal from a judgment of the Mayor’s Court of Asheville, before Thomas A. Jones, Judge of the Criminal Court of Buncombe County, at January Term, 1894.

INDICTMENT for murder, tried at January Term, 1894, of Franklin Superior Court, before Bynum, J., and a jury. The testimony was that the deceased, S. Tucker, a Jew peddler, came to the house of Lucy Brewer and Pinkie Williams, in Gold Mine Township, late in the evening in July, 1892, and there met the defendant Cal. Coley. Later the defendant Tom Coley came to the house also. All ate supper together and the deceased was asked to stay all night.

lN»rcTMKNT for murder, tried before Bryan, J., and a jury, at Fall Term, 1893, of Cumberland Superior Court. The exception to the ruling of the Court permitting the State to challenge a juror, who had been tendered to the prisoner, appears in the opinion.

INDICTMENT for murder, tried at Spring Term, 3893, of Cherokee Superior Court, before Graves, J., and a jury.^ The defendants (Hall as principal' and Dockery as accessory before the fact) were charged with the killing of Andrew Bryson on the 11th July, 1892, in Cherokee county. The testimony tended to show that when the shooting occurred, by which deceased was killed, the defendants were in North Carolina and the deceased in Tennessee.