Volume 115 — North Carolina Reports

This was a PETITION by E. F. Aydlett, Administrator d. b. n., c. t. a., of Mary E. Overman, instituted in the Superior Court of Pasquotank County, for a settlement of the estate of the testatrix, heard before Armfield, J., at May Term, 1894, of said Court, upon exceptions to the report of the Clerk of the Superior Court. Succinctly stated, the facts were as follows: Mary E. Overman died on the 18th December, 1891, leaving a last will and testament, dated 17th January, 1888.

This was a civil actioN, tried before Broten, J., and a jury, at Special Term, 1894, of Pasquotank Superior Court.

This was a civil ACTION, tried at March’ Term, 1894, of Camden Superior Court, before Armfield, J., and a jury, the object being the recovery of a certain lot Of corn in the possession of the defendant Walston. The defendant C. Guirkin, .Trustee, was, upon his own motion, made a party defendant.

This was a civil action heard at Spring Term, 1894, of Chowan Superior Court, before. Armfield, J., and a jury, it being an action to compel the defendant, by mandamus, to lay and regulate the deep-water line on Edenton bay, in front of the plaintiff’s high land, the same being located in the incorporated town of Edenton.

<p> Petition to Rehear. </p> <p>Where, upon a petition to rehear a case decided in this Court, it does not appear that the decision was hastily made, or that any material point of fact or law, or any direct authority, was overlooked, the rehearing will be refused.</p>

<p>This was a civil ACTION tried at Spring Term, 1894, of CURRITUCK Superior Court, before Armfield, J., and a jury. Plaintiff began an action of claim and delivery before a Jus- ■ tice of the Peace for Currituck, to recover a lot of corn. He claimed possession of the corn under a chattel mortgage executed by the husband alone.</p> <p>The following issues were submitted to the jury:</p> <p>“ 1. Is the plaintiff the owner and entitled to the possession of the corn described in the complaint?</p> <p>“ 2. What is the value of said corn ? ”</p> <p>Plaintiff introduced the mortgage and the note secured by the same.</p> <p>P. N. Bray, one of the plaintiffs, testified that the mortgage covered the corn in controversy; that only $10.50 of the debt had been paid, and there was a balance due of $_; that he had demanded the corn of the defendant, and he had failed and refused to deliver; that the usual rent was one-third for corn to the landlord.</p> <p>On cross-examination witness said that the land on which the corn was raised belonged to Mrs. W. A. Carter, wife of W. E. Carter; that W. E. Carter lived on the land in 1892, and cultivated said land. On redirect he said that the debt was for supplies furnished W. E. Carter in cultivating the crop; that there were about twenty barrels of corn, worth $2 per barrel. Plaintiff rested.</p> <p>W. E. Carter, the defendant, the husband of W. A. Carter, testified that he did not lease the land of his wife, the defendant W. A. Carter; there was no contract between them. The farm was worked by hired men; he superintended, but did not work at all.</p> <p>Plaintiff then asked witness:</p> <p>“What was the rental value of the farm for the year 1892?” Defendant objected. Objection sustained. Plaintiff excepted.</p> <p>Cross-examined, witness said: “My wife wanted me to cultivate the farm and I cultivated it, as stated. The farm was one hundred acres cleared.” Defendant closed.</p> <p>Plaintiff introduced Richard Mansfield, who said: “ In 1892 I saw W. E. Carter plowing in the crop several times. He did not work as a regular hand.”</p> <p>The defendant moved for judgment upon the whole evidence. The Court refused this motion, and charged the jury that, upon the whole evidence, the plaintiff was entitled to recover two-thirds of the corn, and they should ascertain its value and render judgment accordingly. There was a verdict in accordance with the charge of his Honor, and from the judgment thereon defendant appealed.</p>

Civil actioN, heard at Spring Term, 1894, of Chowan Superior Court, before Arm-field, J., from whose refusal of a motion to dismiss the action the defendant appealed. The facts necessary to an understanding of the decision appear in the opinion of Associate Justice Avery.

Civil actioN heard before Graves, J., at Spring Term, 1894, of Craven Superior Court. The appellees except here for that the appellants’ statement of case on appeal was not served on them within the time required by law.

This was a civil ACTION, heard before Graves, J., at the Spring Term, 1894, of CraveN Superior Court. Judgment by default having already been entered against the defendant U. S. Mace, the action was heard as to the defendant Ella R. Mace only.

This was an appeal from the return of appraisers who laid off the homestead of the defendant, heard before Graves, J., and a jury, at March Term, 1894, of Halifax Superior Court. The following issues were submitted to the jury : “ 1. Did appraisers allot to defendant, as his homestead, land of less value than one thousand dollars? “ 2. Was the appraiser L. M. Alston a freeholder? “ 3.

<p>Mortgage Sale — Purchaser—Unrecorded Release by Mortgagee— Notice,</p> <p>The purchasers of land at a sale made in pursuance of a mortgage, without notice of an unrecorded release of the timber rights in the land, obtained a good title, and the fact that one of the purchasers subsequently, before taking the deed, had notice of the unrecorded release, could not affect his rights acquired by virtue of the purchase at the mortgage sale.</p>

This is a Civil action, the consolidation of two suits brought by plaintiff against defendant on the 8th day of November, 1892, before J. P. Leach, Justice of the Peace in Warren County, one demand having been made by the plaintiff upon the defendant for the property embraced in both suits; and upon the trial before said Justice, the defendant put in no defence, and the -plaintiff recovered judgment in both suits for the property described in the summons in the suits.

This was a civil ACTION heard before Graves, J., at the Spring Term, 1894, of CraveN Superior Court, said action being heard upon the following facts agreed, which constitute the case on appeal: “ That the defendant A. R. Holton, as guardian of said infants, at the time of the execution of the bond described in the complaint, executed by L. H. Spier and Samuel Quin-nerly, had in his hands money belonging to said infants for investment, as required by law. “ That, as such…

This was AN action tried at December Special Term, 1893, of NORTHAMPTON Superior Court, before Whitaker, J. A jury trial was waived, and the following issues were submitted to his Honor: “ 1. Is the defendant J. M. Grant, as trustee for William Grant, entitled to the fund in controversy ? “ 2.

<p>Civil ACTION, tried before his Honor Jacob Battle, and a jury, at May Term, 1894, of Vance Superior Court.</p> <p>The will of Erancis Rice contained the following provision : “ It is my desire and intention that at the death of my wife my son John shall have the tract of land on which I now reside, and shall pay to his brothers, my sons, William and Robert, each one-third of $1,300.” John Rice, the devi-see named, was appointed executor of his father’s will, and caused it to be admitted to probate, and qualified as executor thereof on the 1st day of February, 1869. The wife of the testator died in 1861. Robert, one of the sons mentioned in this item, is the plaintiff. The defendants are the heirs at law of John Rice, and the executors of his will, he having died in the year 1892. This action was begun January 16, 1894. Upon the probating of the will of his father, John Rice took possession of the tract of land and held it until his death. The defendants now hold it. The plaintiff alleges that on February 5, 1869, he and his brother John purchased from their brother William all his “ right, title and interest ” in and to the real estate of their father Francis Rice, and that thus there became due to him under the item of the will set out above $650. He avers that John Rice made to him a payment on account of his said claim on the 31st of December, 1876.</p> <p>The purpose of this action is the recovery of the sum named, $650, and interest, less the alleged credit of $100.</p> <p>Along with other defences, the defendants pleaded the statute of limitations. His Honor decided that the plaintiff’s cause of action was barred, and gave judgment accordingly. Plaintiff appealed.</p>

This was AN ACTION for damages by plaintiff against B. I. Alsbrook, Sheriff of Halifax County, and his co-defendants, sureties upon his official bond, for failure and refusal to set apart her personal property exemption in the chattels described in the complaint heard before Graves, J., and a jury, at the March Term, 1894, of the Superior Court for Halifax County. The plaintiff tendered these issues: “ 3.

Civil actioN, for the recovery of land, tried before Arm-field, J., and a jury, at Spring Term, 1894, of Hertford Superior Court. There was a judgment for the defendant upon a verdict rendered in accordance with the instructions of his Honor, and the plaintiff appealed. The facts are stated in the opinion of Chief Justice Shepherd.

<p>Petition for writ of habeas corpus, heard before Hoke, J., at Newbern, N. C., on the 9th day of June, 1894.</p> <p>The prisoner was discharged, and the relator thereafter obtained a writ of certiorari to have the action of his Honor reviewed in this Court.</p>

Civil ACTION, heard on complaint and demurrer before Graves, J., at Spring Term, 1894, of Edgecombe Superior Court. The complaint was as follows: “1.

This was a civil ACTION, for the recovery of a tract of land, tried before Bynum, J., at April Term, 1894, of Pitt Superior Court, on the following case agreed : “1. On the 6th day of October, 1881, Rufus C. Rollins duly made and executed his last will and testament, with all the forms and solemnities required by law, and sufficient in form to pass both real and personal estate. “2.

This was AN action commenced at the April Term, 1894, of Pitt Superior Court, asking a construction of the will of Nancy C. Tucker, deceased, and submitted to Bynum, J., upon the following agreed facts: 1. That in the year 1891 Nancy C. Tucker died domiciled in the county of Pitt, having first executed a last will and testament, which, after providing for the payment of debts, etc., was as follows: “Item 2.

This is a civil ACTION for damages caused by the use of alleged slanderous words, heard on complaint and demurrer by Hoke, J., at February Term, 1894, of Wake Superior Court. The plaintiff appealed from the judgment sustaining the demurrer and refusing an amendment to the complaint.

Civil action, tried on appeal from a Justice’s Court at May Term, 1894, of Vance Superior Court, before Battle, J., and a jury.

Civil action, tried before Bynum, J., at Fall Term, 1893, of Craven Superior Court. The plaintiff sought to recover damages for the entry upon his land by the defendant, after being forbidden, and the cutting and carrying away a large amount of valuable timber therefrom. The defendant answered— “ 1.

This is a PROCEEDING eor partition tried before Bynum, J, at Halifax, and the facts were as follows: On the 13th day of January, 1807, James Smith executed a deed in trust to David Clark containing the following provision : “ To have and to hold the said tract or parcel of land and all and singular the premises above mentioned to the said David Clark and his heirs for the uses and purposes hereinafter mentioned, that is to say, in trust for the use and behoof of the said…

Special progeediN&, begun before the Clerk of the Superior Court of VANCE County, for license to sell lands for assets. ’ The petition, after setting out the death of the intestate James L. Kittrell, and the names of the heirs at law who were made parties defendant, alleged— “ 8.

<p>This was a civil actioN, tried on appeal from a Justice’s Court at the May Term, 1894, of the Superior Court of Vance County, before Battle, T, and a jury.</p> <p>The plaintiffs warranted the defendant for $188.15, with interest from 18th October, Í892, for money had and received by the defendant to plaintiff’s use, upon the following allegations :</p> <p>That R. E. Young died March 14, 1892, leaving a will. That at the time of his death he owned a storehouse ánd lot, tenanted by Barnes, Stainback & Co., who were paying $27.50 per month, from February -27, 1892, and who furnished about the burial of said R. E. Young, and other disbursements to his use, $23.50, which should be applied as a credit upon said rent. That plaintiff Ann Eliza Young is sister and next of kin named in R. E. Young’s will, and James M. Young, her son, is trustee of her property for her. That the debts of R. E. Young and the legacies under his will had been paid, and his executrix filed her final account on October 19, 1892. And said Barnes, Stainback & Co.’s storehouse ceased to be a part of R. E. Young’s estate on October 18, 1892, the executrix never having received or accounted to the residuary legatee for the rent.</p> <p>That the defendant, claiming to be agent or manager for said executrix, collected seventy-five dollars or more of the said rent in the summer of the year 1892, and that Barnes, Stainback & Co. made an assignment to A. C. Zollicoffer in December, 1892, preferring the defendant for the balance of the said rent up to October 18,1892, and that said Zollicoffer paid the same to the defendant in April, 1893. That plaintiffs, by their agent, demanded the said money of the defendant about November 1, 1893, and again March 15, 1894, and that he refused to pay the same.</p> <p>The defendant denied the alleged indebtedness and that he had received the money as alleged ; and he denied that the plaintiffs were or are entitled to recover or collect the said rent at all, and also claimed that in the settlement of the estate of R. E. Young the plaintiffs surrendered and abandoned all claim to said rent.</p> <p>The plaintiffs, in support of their contention, offered evidence as follows:</p> <p>It was admitted that demand had been made upon defendant for the amount of rent alleged to be due, and the demand was not complied with. It was admitted also that Mrs. Ann E. Young, the plaintiff, had conveyed all her property in trust to her son and co-plaintiff James M. Young.</p> <p>Mr. T. T. Plicks was then introduced as a witness for plaintiffs, and testified as follows:</p> <p>“On October 18, 1892, Mrs. W. W. Young and her then husband, Dr. Young, raised the money and paid off the legacies under the will of R. E. Young, and also his debts, except some small debts personally paid by his executrix and embraced in account that day filed. Two-thirds of the legacy in favor of the executrix, Pattie F. Young, was paid in land, including the Barnes, Stainback & Co. storehouse at $3,750. Up to that time thefeme plaintiff, neither she nor her husband, had exercised any control over the real estate of R. E. Young. At once after the settlement Mrs. Pattie Young, through her agent, J. R. Young, turned over to me as attorney for Mrs. Ann Eliza Young a large pocket-book containing a number of evidences of debt, notes, bonds, chattel mortgages, etc. There was a judgment of record against W. T. Cheatham, Jr., which it was then stated would be assigned of record to the feme plaintiff. That settlement was made in my office October, 1892, the day Judge Furches spoke here. This storehouse was a part of R. E. Young’s estate, owned by his estate up to that time, when it became the property of his wife. She made a will next day and devised it to J. R. Young, subject to certain provisions in the will, and died about a week later. Very soon after December 21, 1892, when Barnes, Stainback & Co. assigned (at the instance of Dr. Young), I called on the defendant for this rent. He did not then deny that he had received the rent, nor affirm that he had. Again, in March, 1894,1 made written demand on him in behalf of the plaintiffs for that rent.”</p> <p>Cross-examined, he says: “This rent was not discussed; never discussed by me with anyone prior to settlement of October, 1892, this past-due rent. No other matter except this was kept open, but I don’t think the pocket-book was delivered till a day or two later, bnt agreed on that day to be delivered. All that was agreed on has been done. I wrote the paper marked ‘ A.’ When I made demand on Jas. R. Young he said all that had been settled, ‘ that matter has all been settled’; and I understood he insisted the rent belonged to Mrs. Pattie Young, because she had bought the house. The date of the first demand was about March 1, 1893; it was before March 11, date of Dr. Young’s death. March 15, 1894, was the date of the next demand. There was a violent lawsuit going on over the will of Mrs. Pattie Young, which will was established in February, 1894, by withdrawal of appeal.”</p> <p>Here the paper marked “A” was shown the witness for identification. The paper is in handwriting of Mr. T. T. Hicks and signed by J. R. Young, agent, and the paper was at this time offered in evidence by defendant. Plaintiffs objected to the introduction of the paper because of its incompetency and irrelevancy as testimony, and because it was, plaintiffs claimed, a declaration of defendant in his behalf.</p> <p>Objection overruled, and the plaintiffs excepted.</p> <p>This paper-writing (“ A ”) was as follows:</p> <p>“ The tenants of the lands of D. E. Young, I. J. Young and R. E. Young, lately in charge of R. E. Young, and also the store and town property, are to account to and deal with Dr. W. W. Young and wife for past-due rents, and from and after this date one-half the rents of the Harris 607 acres for this year to go to W. W. Young — Barnes, Stainback & Co.’s store excepted.</p> <p>“PATTIE F. YOUNG,</p> <p>“ By J. R. YouNG, Agent.”</p> <p>October 18, 1892.</p> <p>The plaintiffs objected to. the introduction of this document by the defendant at all, and insisted—</p> <p>1. That it was nothing more than a declaration in defendant’s favor made by defendant.</p> <p>2. That it did not appear to have been brought to the knowledge or attention of the feme plaintiff or her husband.</p> <p>3. That no evidence was offered to show that the attorney, in whose handwriting the paper is, had any authority to make it, or to yield to the defendant, impliedly, by accepting it, the then past-due rents in the Barnes, Stainback & Co. store.</p> <p>'4. That.it had no bearing on the issue, the Barnes, Stain-back & Co. stores being expressly excepted from the operation of the paper.</p> <p>5. That there was no consideration shown for the alleged release of such past-due rents.</p> <p>These contentions were all urged again after the close of the evidence, and the Judge was requested by the plaintiffs to direct the jury to disregard said paper entirely. And again, after the verdict, the same contentions in regard to this paper were insisted upon by the plaintiffs when they were asking for a new trial. In each and every instance the decision of the Court being against the plaintiffs, they duly excepted.</p> <p>The Judge intimated no opinion whatever as to what weight should be given to the paper-writing by the jury, but laid before them fully the contentions and explanations of the parties in regard to the same.</p> <p>""Mr. Hicks testified further in regard to the paper:</p> <p>“After we finished the settlement of October 18, and after Mr. Zollicoffer and Dr. Young had gone, I think I said to Mr. Young that, as he and Mrs. Pattie Young had been collecting the rents, and as they were to be collected thereafter by Dr. Young and wife, we ought to have a paper to show tenants, and J. R. Young suggested that I write such a paper, and I did so. Of the 607-acre tract, Mrs. Pattie Young owned one-half, and the other half her husband, and that half she took for $1,500. As rent for that was then due, it was expressed in the paper. After the paper was written, Mr. J. R. Young suggested that the store still belonged to Mrs. Pattie Young and should be excepted, and it was-Nothing was said about giving past-due rents on Barnes, Stainback & Co.’s store to Mrs. Pattie Young, and there was no consideration for it. Dr. Young had never collected any rent on the store.”</p> <p>James R. Young, a witness for the defendant, testified as follows:</p> <p>“After the death of R. E. Young I was agent of his wife, who was his executrix. I took charge of his affairs June 3, 1892. I received from Barnes, Stainback & Co. $80.86, and an account of $52.20 against the estate, making $132.50 on the rent. Sometime in the summer I received a note, due in sixty or ninety days, for $75 on rent, which was not paid at maturity but renewed. This $80.30 was accounted for by me as agent for Mrs. Pattie Young.”</p> <p>This last statement as to $80.30 was objected to by plaintiffs, on the ground that the account as filed by executrix is made out by this witness, and he is estopped to deny his own act. Objection overruled, and plaintiffs excepted.</p> <p>“ It was not put in the final account, because under the agreement of October 18 Mrs. Young was to have this rent. In my settlement with A. C. Zollicofifer, as trustee of Barnes, Stainback & Co., taking up what was due to me and to me as agent of Mrs. Young, I received all the preferred debt except $35 or $36. The rent for January, February and March was at $27.50 per month ; the rent for balance of time was at $25. I reduced the rent at demand of parties. I was acting as Mrs. Young’s agent. In the settlement of the estate of R. E. Young there arose a controversy between Mrs. Pattie F. Young and W. W. Young and wife. It was settled by an agreement in writing. Part of it was reduced to writing. Dr. Young and wife insisted on her taking her legacy of $10,000 in real estate. In discussing this matter, Mr. Hicks said he was willing for Mrs. Pattie Young to receive rents on real estate in lieu of interest if she would do this. It was agreed that she would take two-thirds of her legacy in real estate, and the deeds were executed accordingly. The parties met at Mr. Hicks’office October 18,1892, and the final account was presented and examined by Mr. Hicks, attorney for Dr. W. W. Young and wife, and he said it was satisfactory, and that account does not contain any entry of rent received from Barnes, Stainback & Co.’s store. At this meeting, October 18, 1892, in his office, Mr. Hicks stated that he ought to have a paper in reference to the rents. I told him I thought so too, to draw it up and I would sign it. Before this it had been agreed that the pocket-book should be handed over, and the Cheatham judgment should be assigned, and everything settled except the rents, and Mr. Hicks said he ought to have the paper. We had already that evening discussed the matter of rents. He wrote the paper marked ‘A,’ all except last line, and handed it to me. I told him he ought to put in there that the Barnes, Stainback & Co. store was excepted, and he did so, and I signed it as agent for Mrs. Young. I agreed in the discussion to pay over the rent on the 607-acre tract; that was putin the paper ; and I insisted on the last line being put in. I wanted the whole thing to be settled then and there. Dr. Young had never collected any rent on that - store. Deeds were signed and delivered on that day. I thought everything settled, and heard nothing further of it until February or March, 1893, when Mr. Hicks made demand on me for this rent. I told him it was not^owing, that it was included in.the settlement, and that Mrs. Young was to have the rent. The rent I actually got and not accounted for to Mrs. R. E. Young amounts to $112.50. I never collected any of this rent in my individual capacity.”</p> <p>On cross-examination he stated : “ Mrs Pattie Young made her will, and died within ten days after this settlement. I was her principal legatee and devisee. Eighty dollars and thirty cents collected June 3, 1892, and paid to her October 19 in a settlement I had 'that day. I paid it to her, as the receipted account shows.”</p> <p>Defendant closes.</p> <p>. Mr. T. T. Hicks further testifies for plaintiff: “ I had no authority to agree .to allow Mrs. Patde Young rents in lieu of interest on her legacy. I insisted all through the discussion that the legacy would not bear interest till after a year from R. E. Young’s death. Two legacies in will of $1,000 did not begin to bear interest till October 18, 1892. Willie Harris’ legacy paid that day; no interest on it. I did not agree that Pattie Young should have rent on any property in place of interest on her legacy.”</p> <p>On cross-examination he said: “ I was attorney for Hr. Young and wife in making the settlement. Hr. Young was also present most of the time. There was no formal meeting for doing anything without his presence. The question of interest was discussed. Mrs. Pattie Young brought suit on legacy. It was settled that interest should only count from October 18,1892.”</p> <p>Plaintiffs close.</p> <p>The Judge then charged the jury, fully and distinctly explaining the contentions of plaintiffs and defendant, and charged the jury further that it having been shown that the defendant received the rent, the burden of proof shifted to the defendant, and he must satisfy the jury by the predominance of the testimony that he had paid it to the plaintiffs, or that in some legal way thaplaintiffs had waived or parted with their right to receive it. No special instructions were asked by either plaintiffs or defendant, in writing, nor before the case was given to the jury. After the jury had taken the case, and being out some minutes, they requested to be allowed to see the paper of October 18,1892, marked “A,” and the agreement of September 30, 1891. The Judge asked if there was any objection by plaintiffs or defendant, and both parties consenting, the request was allowed by the Court.</p> <p>There was a verdict for the defendant. Plaintiffs moved the Court to set aside the verdict and grant a new trial for error of his Honor in refusing to charge the jury as requested by plaintiffs, and for other alleged errors as above set forth. Motion refused, and plaintiffs excepted. Plaintiffs moved for judgment upon the admissions of the defendant, notwithstanding the verdict for $194, less the $80.32 paid by defendant to Pattie H. Young. Motion refused. Plaintiffs excepted.</p> <p>Judgment was rendered for the defendant, and plaintiffs, having excepted to the several rulings and judgment, appealed.</p>

Civil action, tried before Whitaker, J., and a jury, at December Term, 1893, of Northampton Superior Court.

This was a civil actioN, commenced August 29, 1893, before a Justice of the Peace and carried by appeal to the Superior Court of Wake County, where it was heard before HoJce, J., and a jury, at February Term, 1894. Plaintiff sought to recover a balance of $170.65, claimed to be due on a contract for repairs on a boiler. Defendant -denied his liability and claimed there had been a compromise and settlement.

This was a Civil actioN, originally brought before a Justice of the Peace and carried, by appeal of plaintiffs, to the Superior Court, where it was tried de novo before Holce, J, and a jury, at February Term, 1894.

<p>Civil actioN to subject the proceeds of a sale of land to the payment of the debts of a decedent, heard before Hoke, J., at February Term, 1894, of Wake Superior Court, upon the following agreed statement of facts:</p> <p>At October Term, 1889, of the Superior Court of Wake County, Elvada Bunn brought an action against M. G. Todd, administrator of James Todd, and the heirs at law of James Todd, to recover the sum of $500 which James Todd in his lifetime held as trustee of Elvada Bunn. At April Term, 1892, a judgment was rendered in favor of the plaintiff for $922, and in the said judgment it was declared that the lands of James Todd in the hands of heirs at law, and those holding under them «with. notice of said claim should be subjected to the payment of said judgment. This judgment is referred to and made a part of this agreement of facts. That in pursuance of said judgment, Lots Nos. 3 and 4 of the lands of James Todd in the hands of his heirs at law were sold for $400, and the proceeds, less the cost of sale, was applied to the payment of said judgment, which leaves a balance of $_, with interest of $-from the — day of-</p> <p>That the defendant M. G. Todd, who is one of the heirs at law of James Todd, was appointed guardian of the Nowell children before said action was brought, and gave his bond as guardian, which is now solvent, .one of the sureties to which was Dr. J. E. Todd. That before this action was brought, and before J. E. Todd had any notice of the claim of Elvada Bunn, but after M. G. Todd had such notice, and before this suit was brought, M. G. Todd was indebted to his wards in the sum of $400. That M. G. Todd sold to James E. Todd the tract of land which he held as heir at law of James Todd, being Lot.No. 6 referred to and described in the complaint in said action, which is referred to for a description of said land, for the sum of $364. That said M. G. Todd, guardian of the Nowell children, advanced to J. E. Todd $36, and took a bond from said J. E. Todd payable to said M. G. Todd, guardian of the Nowell children, for $400, which was the amount then due to them. This note included the purchase-price of said land and the $36 mentioned.</p> <p>That the Nowell children had no notice of the claim of Elvada Bunn, and the said Todd, guardian, secured said note by ,a mortgage on the said Lot No. 6, and also on another tract of land, but the second tract will not pay the amount of said bond for $400.</p> <p>That at the time M. G. Todd took said bond from J. E. Todd, payable to M. G. Todd, guardian of the Nowell children, and at the time of the execution of the mortgage to secure the same, M. G. Todd had notice of the claim of Elvada Bunn upon which said judgment was rendered; but at the time of the sale of the Lot No. 6 by M. G. Todd to J. E. Todd, and at the time of the execution of the bond and mortgage, neither J. E. Todd nor the Nowell children had any notice of said claim, but M. G. Todd did have notice at the time of said sale to J. E. Todd of Lot No. 6 of the said claim of Elvada Bunn.</p> <p>That said M. G. Todd has never credited their note, and it is now in the hands of the Clerk of this Court to abide this action. That the said M. G. Todd has never settled with his wards.</p> <p>The question submitted on these facts is, who has the right to said note of J. E. Todd, except the $36, Elvada Bunn or the wards of M. G. Todd, the said Bunn claiming $364 of the said note, with interest on same, being the purchase-price of the land sold to J. E. Todd, as above set out?</p> <p>That M. G. Todd is insolvent.</p> <p>That M. G. Todd is' still administrator of James Todd, deceased, and was at the time of giving the note and mortgage of J. E. Todd.</p> <p>There is no property of the estate of James Todd to pay Elvada Bunn, except this bond.</p> <p>That J. E. Todd purchased the land from M. G. Todd, for which the bond for $400 was given, more than two years after the qualification of the administrator of James Todd, and that J. R. Todd was not one of the heirs at law of James Todd.</p> <p>That the administration of the estate of James Todd by M. G. Todd, his administrator, had not been settled at the time of said sale to J. R. Todd by M. G. Todd.</p>

This was a creditor’s suit, tried before Hoke, J., and a jury, at April Term, 1894, of Wake Superior Court. It was brought for the purpose of collecting the assets of the Chronicle Publishing Company, and having the proceeds of the same distributed among its creditors according to their respective priorities.

<p>Civil action, tried before Hoke, J., and a jury, at April Term, 1894, of Wake Superior Court.</p> <p>The defendant Holt appealed. The facts appear in the opinion of Associate Justice Burwell.</p>

This was a civil ACTION, tried before Hoke, J., and a jury, at April Term, 1894, of Ware Superior Court. Plaintiff declared on a note for $790, bearing date November 12, 1890, as follows: “ $790.

This was a civil action, tried before Hoke, J., and a jury, at February Term, 1894, of Wake Superior Court. Plaintiff, who was a daughter of Willis Emory, deceased, seeks to establish a parol trust in a tract of land, or lot, the legal title to which is in defendants, who are the children and widow of W. C. Emory (called Clint Emory), deceased, who was brother of plaintiff and sou of said Willis.

Civil ACTION, heard at April Term, 1894, of Wake Superior Court, before Rolee, J. The nature of-the action is stated in the opinion of Associate Justice MacRae. His Honor Judge Hoke granted the motion of the defendants to dismiss the action on the ground that it did not state a cause of action, and the plaintiff appealed.

PetitioN by Calvin J. Cowles, under sections 947 and 948 of The Code, for the recommendatory judgment of the Court. The petition was filed March 31,1894, and is as follows: “ 1. That by an act entitled ‘An act to incorporate the Chatham Railroad Company,’ ratified the 14th day of February, 1855, a charter for the incorporation of a railroad from Raleigh, or some point on the North Carolina Railroad west of Raleigh, to the coal fields of Chatham County, was granted.

Civil action, tried before Brown, J., at August Term, 1898, of Guilpord Superior Court. The plaintiff sought damages for injuries to his property and the health of his family resulting from a filthy drain or sewer kept and maintained by the defendant corporation in a street and on property adjoining the lot of plaintiff.

Civil action, commenced by summons issued on the 5th of March, 1893, and tried before Boykin, J„ and a jury, at the July Term, 1894, of Granville Superior Court. The plaintiff sued to recover an alleged balance due on a sealed promissory note excuted by one B. IT. Cozart and the defendant to one George B. Harris for the payment of $276.34, dated April 2, 1883, and payable one day after its date.

This was AN action, in the nature of a quo warranto, brought to try title to the office of public administrator, and tried before Hoke, J, and a jury, at May Term, 1894, of Guilford Superior Court. The pleadings show that the. relator of the plaintiff was, on the 17th of July, 1889, duly appointed public administrator in and for Guilford County for the term of eight years, and gave the required bond, which was renewed on the 2d February, 1891.

This is an appeal from the Clerk of the Superior Court for the county of Guilford, heard before his Honor R. W. Winston at chambers in Oxford, N. C., on the_day of July, 1894.

Civil action, tried before Holce, J., and a jury, at July, 1894, Special Term of Alamance Superior Court. The action was to recover a tract of land which was formerly the property of Samuel Adams, deceased. Plaintiff claimed under a purchase at a sale by administrator of Samuel Adams to make- assets, and the defendant Rowena Boone, being in possession of the land, claimed to own the same as one of the children and heirs at law of Samuel Adams.

This was a Rule against W. H. Ragan, a purchaser at a sale made by receivers of the defendant corporation, to show cause why he should not be compelled to pay the sum bid by him at the sale, and was heard before Hoke, J., at August Term, 1894, of Guilford Superior Court.

This was a civil actioN to enforce a mechanic’s lien, tried upon appeal from a Justice’s Court, before Hoke, J., and a jury, at the Special Term, 1894, of the Superior Court of Alamance County. The plaintiff claimed that the defendant was indebted to him in the sum of $45, and interest thereof from January 1, 1893, due for work and labor done and for material furnished in the erection of an ell to defendant’s house, under a contract with the defendant.

Civil ACTION, in the nature of a creditor’s bill, heard before Hoke, J, at Spring Term, 1894, of Alamance Superior Court. The following facts were agreed upon by the parties to be taken in connection with the undisputed facts contained in the pleadings, and all issues of law arising between the parties upon the facts were submitted to the Court: 1.

This was a motion to continue a restraining order until the hearing, heard before Battle, I, at Spring Term, 1894, of Greene Superior Court. The defendant appealed.

Action for breach of contract, tried before his Honor Brown, J., at January Term, 1894, of New Hanover Superior Court. At the conclusion of the evidence, his Honor intimated that the plaintiff could not recover. Thereupon he look a nonsuit and appealed. The facts are stated in the opinion of Associate Justice MacRae.

This was a civil action, heard upon appeal from a Justice of the Peace, by Brown, J., and a jury, at May Special Term 1894, of Greene Superior Court.

Civil action, tried before Boykin, J., at August Term 1894, of Greene Superior Court, upon exceptions to Referee’s report. The facts, as found by the referee (and corrected by his Honor, upon exceptions to the findings of the referee), are as follows: “ 1. That S. P. Cox died in the month of August, 1882, leaving a last will and testament, which has been duly admitted to probate. “ 2.

This was a petition in the cause entitled 8. McD. Tate, Treasurer, et al. v. the Bank of New Hanover et al. Jury trial was waived. By consent his Honor, Brown, J., at April Term, 1894, of New Hanover Superior Court, found the facts as follows, to-wit: “ Petitioner is a National bank, doing business in the city of Baltimore. The Bank of New Hanover was a State bank, doing business in the city of Wilmington, which failed, and Junius Davis was appointed Receiver, June 19, 1893.

<p>Civil actioN, tried at Pall Term, 1893, of Onslow Superior Court, before Bryan, J., upon an agreed statement of facts, of which those most material are stated in the opinion of Associate Justice Clark.</p>

Civil ACTION to recover money due on a note and to foreclose a mortgage, heard before Broivn, J., at Spring Term, 1894, upon exceptions to a referee’s report. The facts found by the referee were as follows : “ 1. That on the __ day of-, 1885, the plaintiffs and the defendant George W. Sugg entered into a contract for the making of advances by the plaintiffs and the shipment of cotton by the defendant Sugg.

PROCEEDING heard before Brown, J., at February Term, 1894, of Greene Superior Court. This is an application by the plaintiff for a writ of assistance.’ The plaintiff was the purchaser of certain lands described in the complaint (filed in the original action for foreclosure, etc.). The defendant appealed from the judgment below.

Action to foreclose a mortgage, heard on exceptions to the report of a referee, before Boykin, J., at August Term, 1894, of Greene Superior Court. There was judgment for the plaintiff, and the defendant appealed. The-facts are sufficiently stated in the opinion of Associate Justice MacRae.

Civil action, beard on complaint and demurrer before Brown, J., at February Term, 1894, of Sampson Superior Court. The amended complaint was as follows: “1.

' This was an action brought by the plaintiffs to foreclose a mortgage executed by the defendants to the feme plaintiff Sallie Medlin, and tried upon certain issues submitted to the jury at the June Term, 1893, before Connor, J. The following are the issues and the responses of the jury to the same: “ 1. Did the defendant Mary E. McGirt execute the note described in the complaint? Answer: No. “ 2.

Civil action, heard on complaint and demurrer at the Fall Term, 1893, of New Hanover Superior Court, before Boykin, J. The plaintiff, complaining against the defendants, alleges: “]. That she is administratrix of the estate of R. E. L. Dixon, deceased, having qualified as such on the-day of December, 1893. “ 2.

Controversy without action, heard before Bryan, I, at _Term, 1894, of Cumberland Superior Court, upon facts agreed as follows: “ 1. That H. L. Hall is and was on the 1st day of June, 1892, administrator of D. M. McDonald, and as such had in his hands $5,172 on June 1st, 1892, the same being deposited in the Bank of Fayetteville, Fayetteville, N. 0. “ 2.

<p>Action by Father for Damages for Seduction of Daughter — Loss of Services.</p> <p>A father, being entitled to the services of his minor daughter, and it being incumbent on him to pay the expenses attendant upon her illness and death, has a right of action against her seducer for the loss of such services, etc., and the jury may add punitory damages for the injury to his affections and the destruction of his household.</p>

This was a civil ACTION, tried before Bryan, J., and.a jury, at May Terra, 1894, of the Superior Court of Cumberland County. The issues and responses were as follows: “ Did the defendant J. N. Talbot, on December 18, 1890, execute a note to W. J. Roddey for $97.65, payable on October 1, 1891? Answer. ‘Yes.’ “ 2. Was there a total failure of consideration of the note made by J. N. Talbot to W. J. Roddey?

This was a petition by J. M. Monger, administrator de bonis non of A. F. Harrington, for leave to sell lands to create assets for the payment of debts.

Civil actioN, tried before Bryan, J., on exceptions to referee’s report, at May Term, 1894, of CumberlaND Superior Court. The plaintiff appealed from the judgment rendered for the defendant. The facts sufficiently appear in the opinion of Associate Justice Clark.

This was a civil ACTION, begun in a Court of á Justice of the Peace, and tried on appeal of defendant before Shuford, J, and a jury, at November Term, 1893, of CUMBERLAND Superior Court. After the case was called and the jury impaneled, the defendant moved to dismiss the action on the ground that the summons failed to state the amount of money demanded by the plaintiffs, so as to show the jurisdiction of the Court, as required by section 832 of The Code.

Civil action, tried before Shuford, J., and a jury, at January Term, 1894, of Granville Superior Court. There was a verdict for defendant, and from the judgment thereon the plaintiff appealed. In this Court the defendant moved to dismiss upon the ground that the complaint did not state a cause of action. The complaint was as follows: “ 1.

This is a civil ACTION, tried before Hoke, J., and a jury, at Fall Term, 1894, of Chatham Superior Court, for the foreclosure of the mortgage described in the complaint. Among other defences the defendants pleaded the statute of limitations. The following issues were submitted to the jury: ' “ 1. Was plaintiff duly and properly appointed and qualified as receiver of Ellington, Royster & Co. ? “ 2.

Civil action, tried at Spring Term, 1894, of RANDOLPH Superior Court, before Battle, J. The action was for malicious prosecution and false arrest, charging that the defendant had prosecuted the plaintiff before J. P. Phillips, a Justice of the Peace, for the crime of embezzlement.

ActioN for damages alleged to have been- caused by the dogs of the defendants, tried at Fall Term, 1894, of Randolph Superior Court, his Honor Judge Bryan presiding.

Civil actioN, tried at Spring Term, 1894, of Scjkry Superior Court, before Whitalcer, J., upon complaint and demurrer ore tenus, for the recovery of $500 balance due on the purchase of land for which a deed had been given and no lien retained, and for a sale of the land in satisfaction of a debt.

Civil action, tried before Shuford, J, and a jury, at February Term, 1894, of Guilpoed Superior Court. The plaintiff sued to recover.possession or damages for the non-delivery of certain cotton mill machinery which he claimed under a mortgage by the Crown Mills Corporation, and which the defendant Cook as Sheriff seized and sold under executions in his hands against said corporation.

Civil action for foreclosure of a mortgage, tried at Fall Term, 1893, of Wilkes Superior Court, before Winston, J., and a jury.

This was a civil action, commenced on the __ day of April, 1893, heard upon a temporary restraining order issued by Boykin, J., at chambers at 'Mocksville, N. C., upon the following facts agreed : ■ On the __ day of-, 1891, the authorities of the town of Wilkesboro, under the power granted in their charter, passed at the session of 1889, declared it a public necessity to open a street from the south end of the iron bridge across the Yadkin river down to Vine’s saw-mill.

This was a civil action, tried at Fall Term, 1894, of Burice Superior Court, before Allen, J. A jury trial was waiyed, and it was agreed that the Judge might try the action and find the facts. After hearing the evidence, the following facts were found: 1.

Civil action, tried before Allen, J., at Fall Term, 1894, of Ashe Superior Court, upon exceptions to a referee’s report, which is as follows: “I find from the evidence that the plaintiff entered the service of the defendant as his salesman in 1889, and quit his service in 1892. That according to the contract-between them he was to sell the defendant’s goods in certain counties in North Carolina, Tennessee and Virginia.

This was a civil actioN, to recover possession of a tract of land, tried at Fall Term, 1894, of Ashe Superior Court, before Allen, J., and a jury. Held: and defendant excepted.

Civil actioN, heard at May Term, 1894, of Forsyth Superior Court. From the judgment on a verdict for the- defendant, the plaintiffs appealed. The facts sufficiently appear in the opinion of Associate Justice Avery.

Controversy without action, submitted under section 567 of The Code, and heard before Allen, J., at Fall Term, 1894,. of McDowell Superior Court. The following is the case agreed: “1. That John B. Grayson .died April 26,1885, leaving him-surviving the plaintiffs above named, his only heirs at law, except Margaret L. Grayson, who is his widow. 2. That the said John B. Grayson died intestate, and his real estate descended to the plaintiffs, his heirs at law. 3.

Controversy without action, heard before Allen, J., at Fall Term, 1894, of Burke Superior Court, upon an agreed statement of facts as follows: “ 1.

<p>This was a motion to remove the canse to the Federal Court, upon petition of defendants (other than Mayo, trustee, and L. M. Herring and L. Hassel Lapp), heard before Armfield, J., at Pall Term, 1894, of Beaufort Superior Court.</p> <p>The complaint in the cause was as follows:</p> <p>“ 1. That for many years, beginning about 1875, and continuing till 1893, the defendants Howes & Sheets, and those whom they succeeded in business, and these plaintiffs, have had large business dealings together, the plaintiffs shipping to the said defendants and their predecessors in business, as commission merchants, for sale on their account large quantities of lumber of great value, and receiving from them from time to time money and other things.</p> <p>“ 2. That in the course of the said dealings the plaintiffs made the mortgages and deeds of trust herein stated, conveying therein the property respectively described in said county. * * *</p> <p>“ 3. That the amounts set forth and secured in said deeds of trust and mortgages were regularly charged against these plaintiffs in the accounts kept with them by Howes & Sheets and their predecessors in business, and said accounts were likewise credited with shipments of lumber made to them by plaintiffs and sold for their account and statements thereof rendered from time to time to these plaintiffs.</p> <p>“ 4. That they are advised and believe and aver that the entire amount secured in the deeds of trust and mortgages aforesaid have been and are more than paid by the shipments and credits aforesaid, and that the said deeds and mortgages áre no longer binding and in force against the property in them described.</p> <p>“ 5. That each of the debts secured in the several mortgages aforesaid matured, and the cause of action of defendants thereon (if any they had) had accrued more than three years before the bringing of this action, and the said debts are therefore barred by the statute of limitations, and plaintiffs specially plead the same; and the said mortgages, maturing more than ten years prior to the bringing of this suit, the said mortgages are barred by the statute of limitations, and plaintiffs specially plead the statute of limitations and lapse of time to said mortgages.</p> <p>“ 6. That the defendants Howes & Sheets claim and insist that the sums secured in deeds aforesaid are still due and unpaid, and that the said deeds are valid liens upon the lands therein conveyed, and are holding the same as security for the said sums.</p> <p>“ 7. That the defendants Howes & Sheets claim that the plaintiffs owe them on account, including the sums secured as aforesaid, $56,310.34, with interest at 7 per cent, from October 27, 1893. These plaintiffs deny that they owe said defendants said amount, or that they owe them anything. On the contrary, they believe and aver the said defendants are indebted to them in a large sum.</p> <p>“ 8. That the accounts rendered by the said defendants are erroneous, unjust and false, in that the said defendants and their predecessors have negligently or fraudulently failed to sell and account for the timber shipped by these plaintiffs to them for sale on commission, but have credited these plaintiffs far below the sums which like lumber brought at the same time in the same market; that they have not properly accounted to the plaintiffs for the lumber which went into their hands and into the hands of those whom they succeed; that they have charged illegal and usurious interest against plaintiffs by charging 7 per cent, on general account, when there was no agreement in writing to pay that rate, by rendering annual, semi-annual and quarterly accounts, adding interest each time at said rate, and calculating interest thereafter on the balance each time as a new principal sum due by plaintiffs; by charging commissions for selling lumber largely in excess of what is usual and proper, as a device for -charging usury and concealing the same.</p> <p>“ 9. That the existence of the mortgage and trust deeds aforesaid uncancelled upon the records, and the defendants Howes & Sheets’ false claim with respect to the same, create a cloud upon the plaintiffs’ title to their property therein named, and greatly damage them in their credit and business, and they ought to be cancelled and removed.</p> <p>“ 10. That the defendants, Samuel A. Sheets, John Sheets, Katie E. Howes, Susan McA. Sheets, Robert A. Sheets, Mary ■C. Runyon and Harriet L. Shinn are the heirs at law of J. A. J. Sheets, deceased, to whom the legal title to the lands described in .said deeds has descended, the said Sheets having died before the bringing of this action.</p> <p>“11. That on the 24th day of June, 1892, plaintiffs being indebted to L. Hassell Lapp and Louisa Mayo Herring, as •stated in the deed of trust herein described (to Lapp in the sum of $3,000, and to Herring in the sum of $700), to secure the same conveyed to defendant L. R. Mayo the land described in the deed to J. A. Sheets, dated June 8, 1880, upon which there is now due the sums aforesaid, except as to Mrs. Herring, to whom has been paid about $200; said deed of trust is recorded in Book 85, page 434.</p> <p>“ 12. That the deed of trust to Mayo is subsequent to the others in point of time, but by reason of the facts aforesaid these plaintiffs believe and aver that it is now the first and only lien on the said property.</p> <p>“ 13. That plaintiffs desire to have the accounts between themselves and Howes & Sheets stated and determined; to have all deeds of trust and mortgages of record against them, which have been"paid and settled, duly cancelled; to have the right of the defendants Howes & Sheets, and the defendants Mayo, trustee, Lapp and Herring with respect to and in the said properties ascertained and determined.”</p> <p>Wherefore, plaintiffs ask judgment—</p> <p>“1. That the accounts between the defendants Howes & Sheets, and those whom they succeed, and the plaintiffs, be stated under the direction of this Court.</p> <p>“ 2. For such sums as may be found due the plaintiffs. .</p> <p>“ 3. That the mortgages and deeds of trust described in section 2 hereof, be cancelled.</p> <p>“ 4. That the amount due Howes & Sheets, if anything, be ascertained, and whether the same be secured by mortgage or deed of trust; and if so,</p> <p>“ 5. That the same and the deed of trust to defendant Mayo be foreclosed under the direction of this Court.”</p> <p>The answer of the defendants L. R. Mayo, Louisa Herring and L. Hassell Lapp,'admitted the material allegations of complaint, and prayed judgment as follows:</p> <p>“ 1. That they be declared to have the first and only lien on said lands; that the mortgages and deeds of trust set forth in section 2 of the complaint be declared paid and can-celled of record, according to law; that a commissioner of this Court be appointed to sell said lands and pay off said debts out of the proceeds, and for such other relief,” etc.</p> <p>The petition for removal was as follows:</p> <p>“ The petition of George A. Howes and John Sheets, trading as Howes & Sheets, and Samuel A. Sheets, Katie E. Howes, Robert A. Sheets, Mary C. Runyon, Susan McV. Sheets, Harriet L. Shinn and husband Wilson Shinn, and John Sheets, defendants above named, shows to the Court as follows: That the above suit was begun against your petitioners, and also against the other parties named above as-defendants, in the Superior Court of Beaufort County, and State of North Carolina, by the issue of a summons on the 17th day of January, 1894, and by service of the said summons upon the defendant George A. Howes upon the 19th day of January, 1894, and by filing of a complaint in the said cause on February 27, 1894; that your petitioners have-not yet filed their answer, but as to your petitioners the said cause is now pending; that the said cause has not been tried, and this is the term of the Court at which the said George A. Howes, who has been served with summons, and John Sheets, Samuel A. Sheets, Katie E. Howes, Robert A. Sheets, Mary C. Runyon, Susan McV. Sheets, Harriet L. Shinn and husband Wilson Shinn, are required to file their .answers; that at the time the.said suit was begun, and at the present time, the plaintiffs were and are citizens and residents of the State of "North Carolina, and county of Beaufort, and your •petitioners were and are citizens and residents as follows George A. Howes and wife, Katie E. Howes, John Sheets,. Mary C. Runyon, now the wife of George W. Wannamaker,. and Susan McV. Sheets, all of the city of Philadelphia and State of Pennsylvania; Samuel A. Sheets, of the city of Camden and State of New Jersey; Robert A. Sheets, of the city of St. Augustine, State of Florida; Harriet L. Shinn and Wilson Shinn, of the town of Haddonfield and State of New Jersey; that the matters in dispute in said action, and for which the said action is brought, exceed the sum of two thousand dollars, exclusive of costs and interest, and amount to about fifty thousand dollars, as appears from the complaint herein; that L. R. Mayo, trustee, is a resident and citizen of the county of Beaufort and State of North Carolina, and Louisa Mayo Herring, also a party defendant, is a resident and citizen of Beaufort County and State of North Carolina; that L. Hassell Lapp, also a party defendant, is a resident and citizen of the city of Philadelphia and State of Pennsylvania; that the said L. R. Mayo, Louisa M. Herring and L. Hassell Lapp were citizens of the States and places above named at the time of the institution of this suit, and are now residents and citizens of said places and States; that the real controversy in this action is between the plaintiffs and George A. Howes and John Sheets, trading as Howes & Sheets; and the other petitioners above named as heirs at law of John A. J. Sheets; that L. R. Mayo, trustee, and .Louisa Mayo Herring and L. Hassell Lapp are not necessary parties to the determination of the controversy and action between the plaintiffs and your petitioners, and they are made parties defendant herein, as your petitioners believe and aver, for the purpose of preventing the removal of this cause to the Circuit Court of the United States, to which Court your petitioners are advised they have the right to remove this cause; that there is no controversy, as appears from the complaint herein, between the plaintiffs and the defendants L. R. Mayo, trustee, Louisa Mayo Herring and L. Hassell Lapp; that the answer of the said defendants has been filed to the said complaint, and it is apparent therefrom that there is no controversy between them and the plaintiffs; that the interest of the said defendants, if they have any in this action, is identical with that of the plaintiffs, and is adverse and hostile to that of your petitioners. Your petitioners ask that the said defendants above named be arranged in this action according to their true interests, and that they be not permitted to interfere with and defeat the rights of your petitioners to remove their cause to the Circuit Court of the United States; and the defendant petitioners hereby offer Seth Bridgman and W. P. Baugham of the town of Washington, county of Beaufort and State of North Carolina, as sureties for their entering in the Circuit Court of the United States for the Eastern District of North Carolina, wherein the said suit is pending, on the first day of next session of the said Court, or before, a copy of the record in said suit, and for paying all costs that may be awarded by said Circuit Court, if the said Court should hold that the said suit was wrongfully or improperly removed thereto; and for their appearing and complying with all the provisions of the acts of the United States relating to the removal of causes from State Courts.</p> <p>Wherefore, petitioners pray this honorable Court to proceed no further herein, except to make the order of removal required by law,” etc.</p> <p>His Honor denied the motion, and the defendant Howes appealed.</p>

<p>Action heard by Allen, I., at Fall Term, 1894, of Ashe Superior Court, upon exceptions to a referee’s report. (See 109 N. C., 385.)</p> <p>The following facts were found by the referee:</p> <p>“ 1. That all the assets that came into the hands of the receivers have been applied to the payment of certain judgments, under order of Court.</p> <p>“ 2. That the capital stock of the defendant corporation at its organization was $1,500,000, and that the same was divided into 150,000 shares, of the par value of $10 each, and that said capital stock was issued to the corporation as full paid up stock, as allowed by its charter.</p> <p>“ 3. That the said capital stock was never paid in cash, but was issued to the corporators in proportion to their several interests in certain real estate owned by them in Ashe County, known as the ‘ Ore Knob Property,’ consisting of a tract of land, on which was a mine of copper, and certain machinery used for mining, and that said capital stock was based upon said property.</p> <p>“ 4. That certain debts were created by the corporation, and all the property belonging to it was sold to satisfy judgments rendered upon such indebtedness, and the proceeds of such sale, amounting to $7,300, has been applied to its indebtedness, under order of the Court.</p> <p>“ 5. That the indebtedness of the corporation consisted of a judgment in favor of J. E. Clayton and Herman Williams for about $30,000, and in favor of the plaintiff Black for $100, with interest from September 1,1882.</p> <p>“ 6. Of the aforesaid capital stock, I find that Herman Williams owned $27,750, and J. E. Clayton $28,660. I further find they were both corporators.</p> <p>“ 7. From the evidence offered, I find that the property of the defendant was not worth $1,500,000 at the time of its organization, or afterwards, and that the difference between its real value and the amount at which the property was capitalized or estimated at its organization was greatly in excess of the indebtedness of the corporation now subsisting. I further find that the value of the property of defendant corporation at the time of its organization in February, 1881, and at any time afterwards, did not exceed $750,000.</p> <p>“ Wherefore, I conclude that, as the capital stock of the defendant was neither paid in cash nor in property worth the amount of such stock, that the corporators are individually liable for the amount of the indebtedness of said corporation to Daniel Black, and that it is the duty of plaintiff receivers to collect a sufficient amount from the stockholders or corporators individually to discharge the indebtedness to said Black. Marshall Foundry Go. v. Killian, 99 N. C. Reports, page 501. The opinion of the Supreme Court in this case. Murphrey on Foreign Corporations, § 389.</p> <p>“ Respectfully submitted,</p> <p>“ R. A. Doug-htoN, Referee.”</p> <p>Defendant excepts to the report filed—</p> <p>“ 1. For that the commissioner failed to find the fact as to what the Ore Knob property, on which the stock was issued, was worth at the time of its organization.</p> <p>“ 2. For that he failed to find when the corporation defendant was organized.</p> <p>“ 3. For that he failed to find the fact when, how and under what circumstances the property so greatly depreciated.</p> <p>“ 4. For that his seventh finding of facts is meagre and unintelligible.</p> <p>“ 5. For that his conclusions of law are erroneous.”</p> <p>The judgment was as follows:</p> <p>“ This cause coming on to be heard upon the pleadings, evidence, exhibits, the reports of Referee Doughton, exceptions thereto filed by defendant, and all the exceptions being overruled, and the referee having amended his report showing the value of the property: It is, therefore, considered and adjudged by the Court that James E. Clayton and Herman Williams, receivers, collect and pay into the Clerk’s office of this Court a sum sufficient to discharge the plaintiff ’s judgment, and all costs incurred in this Court, and all costs of the appeals to the Supreme Court, and also including the allowances heretofore made by the Court to R. A. Dough-ton, referee, and one-half of $50 allowed said referee for his two last reports in this cause; and that it be paid into the office within ninety days from this date, September 29,1894.</p> <p>“ That a copy of this judgment be sent by mail to the receivers, James E. Clayton and Herman Williams, at Baltimore, Md., by the Clerk of this Court.”</p>

Civil actioN, tried before Shuford, J., at_Term, 1893, of Cumbekland Superior Court. The plaintiff sought to recover the value of lumber alleged to belong to plaintiff, and seized and sold by the defendant under execution against H. W. Steinhelper and the Starr Lumber Company. The facts appear in the opinion of Associate Justice Bur-well. Defendant appealed.

Civil ACTION, tried before Winston, J., at the Fall Term, 1894, of the Superior Court of Rutherford County, upon a case agreed, from which it appeared that the plaintiff, Mary Alice Simpson, is the widow of Robert Simpson, deceased, and the other plaintiffs are his children; that Robert Simpson on the 15th day of May, 1875, and also on the 15th day of May, 1876, insured his life for the sum of $1,000 in the North Carolina State Life Insurance Company, and received from said…

Special proceeding before the Clerk of the Superior Court of MbqpleNBükg County, to compel the defendant executor to turn over to feme plaintiff certain shares of stock bequeathed to her by his testator, and heard on appeal of the defendant before Winston, J. The complaint was as follows: “ 1.

Civil action, tried at March Term, 1894, of Mecklenburg Superior Court, before Boykin, J., and a jury, having been brought there by defendant’s appeal from a Justice of the Peace. Held: and did not consider himself a member of the company until the shares were paid for. Did not know but that the notes were filled in properly until the day of trial. No certificate of stock was ever tendered defendant by the plaintiff.

This action was begun in a Justice’s Court, and on appeal by the plaintiff to the Superior Court it was there submitted on the following agreed facts : “ 1.

<p>Civil ACTION, beard upon complaint and demurrer before Boykin, J., at Spring Term, 1894, of GastoN Superior Court.</p> <p>The demurrer was sustained, and plaintiff appealed.</p> <p>The facts are stated in the opinion of Associate Justice Buewell.</p>

<p>Action for Damages— Obstruction Causing Overflow of Land— Counterclaim — Irrelevant Testimony — Deposition.</p> <p>1. Where, in an action for damages caused by the ponding of water on plaintiff’s land by obstruction placed by defendant on his own land, on or near the dividing line, the defendant pleaded as a counterclaim damages caused by the overflow of water on his land by reason of obstructions placed by the plaintiff on the lower edge of her land: Held, that the torts were separate and distinct, and that complained of by the defendant did not “arise out of the transaction set forth in the complaint,” nor was it “ connected with the subject-matter of the action,” and hence was properly disallowed as a counterclaim.</p> <p>2. The rejection of irrelevant testimony, unless its exclusion can be seen to prejudice the party objecting, is not ground for a new trial.</p> <p>3. It is not error to exclude testimony tending to support a counterclaim which is ruled out as improperly interposed, when it could have no bearing upon the cause of action stated in the complaint.</p> <p>4. Where it appears from the return of a deposition that it was taken on the day, at the time, and by the person designated, it will be presumed, in the absence of evidence to the contrary, that all things were done rightly, and that it was taken between the hours appointed for taking the same.</p> <p>5. An objection to a deposition that the answers were on a separate sheet attached to interrogatories, but not inserted at the end of each interrogatory (the whole, however, being above the signature of the commissioner), is untenable.</p>

Civil action to recover land, tried before Armfield, J., and a jury, at Spring Term, 1898, of Rutherford Superior Court. From a verdict and judgment for defendant, the plaintiff appealed. The facts are stated in the opinion.

Civil ACTION, heard at Fall Term, 1898, of Chowan Superior Court, before Graves, J. The facts appearing from the complaint are as follows: “By deed, dated July 1, 1879, certain land in Chowan County was conveyed to D. M. Lee in fee, reserving a life estate to feme grantor S. F. Bond, to be terminated on her second marriage.

Special ACTION, begun by summons and beard by Bynum, J., at February Term, 1894, of YaNCE Superior Court, after notice to defendant upon the plaintiffs’ application to restrain the defendant W. E. Moss, trustee, from the sale of certain real estate described in the affidavits.

Civil actioN, heard úpon exceptions to referee’s report, before Hoke, J., at April Term, 1894, of Wake Superior Court. The plaintiffs sought to recover from the defendant certain lands, which he had bought at a sale under a mortgage and deeds of trust executed by the plaintiff to him. The action was begun October 13, 1893. The findings of the referee, Mr. R. 0. Burton, were as follows: “ 3.

Civil action, tried before Battle, J., at Spring Term, 1894, of Randolph Superior Court, upon exceptions to the report of P. D. Walker, referee. From the judgment of his Honor upon divers exceptions to the report, both the plaintiff and defendants appealed. The facts necessary to an understanding of the opinion, in each appeal, are sufficiently stated therein.

<p>Taxation — Exemption—Property used for Educational or Religious Purposes.</p> <p>1. Under section 5 of Art. 5 of the Constitution, the Legislature may exercise to the full extent, or in part, the power to exempt from taxation property held for educational, scientific, literary, charitable or religious purposes, or may decline to exempt at all. The constitutional provision being in the disjunctive, the Legislature can exempt the property up to a certain value, and tax all above it, and may also tax property held for one of the purposes named, and exempt that held for others.</p> <p>2. Under chapter 137, Acts of 1887, chapter 218, Acts of 1889, and chapter 326, Acts of 1891, exempting from taxation property set apart and exclusively used for religious, charitable or educational purposes, only such property was meant as was used directly, immediately and solely for the pur’poses named’, and hence property rented out was not exempt, though the rents, so applied, were.</p> <p>3. Under section 20, chapter 296, Acts of 1893, the exemption given by the previous acts named was extended so as to include property rented out, provided the rental should be applied exclusively to the support of the Gospel.</p> <p>4. Solvent credits held by a religious society, the income from which is applied exclusively and faithfully to educational, religious and charitable purposes, are exempt from taxation under the Act of 1898, but any part of the fund on which the interest is not so applied, but is allowed to accumulate, is not exempt.</p> <p>5. A parcel of land of twenty acres, lying within the corporate limits of a town and belonging to a religious society, and on one part of which is a church, situated on a lot fenced in, of about two acres— the same being held for sale, excepting the church lot — is not, other than the church lot, exempt from taxation.</p> <p>6. A tract of eighty acres, chiefly in forest, lying near a town, held by a religious society, on one side of which is situated a schoolhouse, is not exempt from taxation, except such part of it as is necessary for the school.</p> <p>7. A town residence belonging to a religious society, not needed or used for a church, parsonage, school or hospital, but rented out, is not exempt from taxation; otherwise as to the rental applied to reli- • gious, educational or charitable purposes.</p>

This was a motion by F. F. Rankin, Sheriff, to be allowed to “ correct ” his return made on a summons in a special proceeding, which was denied by the Clerk, but upon appeal from such refusal, Battle, J., at Fall Term, 1894, of Stokes Superior Court, permitted the amendment, and held “ that as a matter of law,” under the circumstances, the Sheriff had a right to have the return amended.

This was a civil ACTION begun by the issue of summons on the 19th day of November, 1884, in which the ancillary proceeding of claim and delivery was resorted to on the same day for the purpose of acquiring possession of a portable engine and saw-mill, last heard before Bryan, J., at February Term, 1893, of Chatham Superior Court. The facts appear in the opinion.

<p>This was a civil ACTION in the nature of a general creditor’s bill brought by the plaintiffs, The Merchants National Bank of Richmond and others, against the Newton Cotton Mills, alleging the insolvency of the defendant corporation, and asking for the appointment of a receiver and the distribution of its assets among its creditors. The action was commenced in October, 1893, and was brought to the February Term, 1894, at which time, no answer being filed by the defendant, M. L. McCorkle was appointed receiver to collect the choses in action of the corporation, and to sell the real and personal property, and was also appointed referee to take and state an account of the debts, liabilities and assets of the corporation and to determine the rights and privileges of the creditors in the distribution of the assets.</p> <p>On the second day of April, 1894, the Potter and Atherton Machine Company and James E. Mitchell & Co., appeared in the action and made themselves parties thereto, and filed their complaint, to which complaint no answer has been filed.</p> <p>In said complaint they alleged that the judgments confessed by the defendant to The Merchants National Bank of Richmond and others hereinafter mentioned were void, for the reason that they were not confessed in conformity to the requirements of the statute, section 571 of The Code, and for the further reason that at the time of their confession and for some time prior thereto the defendant corporation was insolvent and had no right or power to prefer one creditor to another by confession of judgment or otherwise.</p> <p>The referee proceeded to take the account as ordered by the Court, and filed his report at the July Term, 1894</p> <p>At said Term the Potter and Atherton Machine Company and James E. Mitchell & Co. filed their exceptions as set forth' in the record.</p> <p>The referee held that certain judgments as set forth in the printed case were invalid, and to this ruling there was no exception before either the referee or the Judge.</p> <p>The referee further held that the other judgments, in favor of the following persons, to wit, The Merchants National Bank of Richmond, The Bank of Lancaster, The Exchange Bank of Chester, The Bank of Orangeburg, The People’s Bank of Winnsboro, Boyden & Overman, and J. R. Gaither, were valid.</p> <p>James E. Mitchell & Co. and the Potter and Atherton Machine Company excepted to the ruling of the referee as to the validity of the last above enumerated judgments and attacked the same on the grounds set forth in their exceptions, which exceptions are substantially as follows:</p> <p>First. That the said judgments were not confessed in conformity with the requirements of the statute, section 571 of The Code, in the following particulars:</p> <p>(a) That there is no authority for entering the judgments stated in the confessions.</p> <p>(b) That it is not shown in the confessions that the sums for which judgments are confessed are justly due or to become due.</p> <p>(c) That the evidences of indebtedness or copies of the same were not filed with, attached to or described in the confessions.</p> <p>(d) That the said judgments were confessed for goods sold and delivered, and the time of sale, quantity, price, value of the goods and the “ exact consideration ” of the indebtedness are not stated in the confessions.</p> <p>(e) That said judgments, except that confessed to J. R. Gaither, were confessed for a greater rate of interest (to wit, 8 per cent.) than was allowed by the notes or contracts upon which the said judgments are alleged to have been based, which notes and contracts, when filed, not with the confessions but before the referee, showed that they carried only 6 per cent, interest.</p> <p>(/) That plaintiffs in said judgments could not, after said judgments had been confessed and before the referee, after the hearing was begun, amend or change the same by filing the evidences of indebtedness, or resolutions or remitting interest or in any other respect or particular. ■</p> <p>Second. That in the case of the three judgments confessed in favor of the Merchants National Bank of Richmond, The Exchange Bank of Chester, and The Bank of Lancaster, on July 31, 1893, the reservation by the debtor, with the consent and agreement of the plaintiffs in the judgments, that no execution should issue until after the expiration of nine months, was a benefit reserved by the debtor for his own ease and comfort to the impairment of the rights of the other creditors, and its then insolvent condition was a fraud upon their rights, and for this reason the referee and the Court should have held that the said judgments were void or at least, in the circumstances of this case, that they acquired no priority thereby.</p> <p>Third. That the Newton Cotton Mills being utterly insolvent at the time the judgments were confessed, the referee should have held that it had no right or power to prefer one creditor to another by confession of judgment or otherwise, and that for this reason the said judgments are void.</p> <p>Upon these exceptions the case came on to be heard at Fall Term, 1894, of Catawba Superior Court, before Allen, J., who sustained the third exception, and held that the Newton Cotton*Mills, being insolvent at the time of the confession of the judgments, could not by the confessions prefer one or more of its creditors over others, and adjudged that after paying all costs, expenses and charges, and the debts of admitted priority, all of which are set forth and classified in the printed case, the remaining assets should be distributed pro rata among all the other creditors. The Judge further held that the judgments were not invalid by reason of the other grounds set forth in the foregoing exceptions ; but he did not overrule the other exceptions, as he had sustained the third exception and set aside the judgments on that ground. The Merchants National Bank of Richmond and the other plaintiffs in the confessed judgments excepted to the ruling of the Judge invalidating their judgments.</p> <p>And James E. Mitchell & Co. and the Potter and Atherton Machine Company, in order that they might not be prejudiced by the ruling of the Court upon the other grounds of objection to the said judgments, filed exceptions to his Hon- or’s ruling in those respects, and they ask that those exceptions be considered only in case this Court should hold that the reason assigned by the Court below for setting aside the judgments is erroneous.</p> <p>In order to present these questions the following brief statement of the facts relating to it, as gathered from the record, is pertinent:</p> <p>“ The Newton Cotton Mills was a manufacturing corporation, created and organized in 1888, and in the prosecution of its business became heavily involved in the spring and early summer of 1893, so much so that its indebtedness at that time amounted to about $60,000. On July 21, 1893, notes of the corporation for large amounts went to protest, the corporation not having, nor being able to raise, the money with w'hich to pay them, and for some time prior to the date of the confession of the first judgments the corporation was unable to pay its debts and was actually and hopelessly insolvent. Being thus insolvent the corporation, on the 31st day of July, 1893, confessed three judgments aggregating about $15,000 to The Merchants National Bank of Richmond, Va., The Bank of Lancaster and The Exchange Bank of Chester, S. C., on certain antecedent debts, in the form of notes, which the said banks held against the corporation as endorsees and only one of which had become due. On the ilth of August, 1893, the corporation confessed other judgments to Boyden & Overman, J. R. Gaither and others to a large amount; and on August 14 and August 23, 1893, it confessed other judgments, among others to the appellants, The Peoples Bank of Winnsboro, The Exchange Bank of Chester, and The Bank of Orangeburg, S. C., the said judgments amounting in all to $50,000 or $60,000.</p> <p>“ The entire property of the corporation was sold on the 2d day of April, 1894, after extended advertisement, for the sum of $31,000, and the Court found that the property had sold for a fair price, and without objection confirmed the sale; and the property of the corporation was in better condition at the time of the sale than when the judgments were confessed. The property of the corporation, outside of that sold ' on the 2d of April, 1894, was not worth exceeding five hundred dollars.”</p>

<p>This was a civil action to recover possession of a tract of land, tried at Pall Term, 1894, of Burke Superior Court, before Allen, J., and a jury.</p> <p>The defendant, among other defences, relied upon the pen-dency of a- former action at the commencement of this action, and one issue submitted to the jury by consent of the parties was as follows: “Was there another action pending between the-plaintiff and defendant at the commencement of this action involving the controversy in this action ? ”</p> <p>The record in said former action- was introduced in support of said plea, and a copy of the summons, complaint, answer and judgment therein are herewith filed as a part of this case.</p> <p>It was admitted that Joseph Propst, who was a party to said former action, died before the commencement of this action, and that the land described in the complaint in this action is a part of the land described in said former action. The Court was of opinion that said former action did not involve the controversy in this' action and was no bar, and instructed the jury to answer said issue “ No,” to which defendant excepted.</p> <p>The plaintiff, J. M. Propst, was examined as a witness in his own behalf, and testified as follows: “ I came to Mor-ganton in 1853 to the Clerk’s office; W. S. Sudderth was then Clerk of the Superior Court; I asked him to show me the will of Adam Overwenters; he took a book, then in his office, and read it to me, and said it was the will of said Adam. It was a large bound book he read from (and witness was here shown a will book from Clerk’s office of date since 1868), and he said the book read from was like that. The will devised the land to the wife of Adam Overwenters for life and then to two daughters.”</p> <p>Evidence was offered to show that the record of wills in Burke County was destroyed in 1865-’66; that the record and original of the will of Adam Overwenters could not be found.</p> <p>The plaintiff relied upon the will of Adam Overwenters in deducing his title. The defendant excepted to the admission of the evidence as to the contents of said will. There' was other evidence to which no exception was taken, and no exception was taken to the instruction given to the jury.</p> <p>Verdict and judgment for plaintiff. Appeal by defendant.</p>

Civil action, tried at Spring Term, 1894, of Caldwell Superior Court, before Winston, J., and a jury. The nature and history of the action, and the facts developed on the various trials of the same, appear in the reports of the several appeals — see 108 N. C., 382; 111 N. C., 425, 113 N. C., 551 — and the facts necessary to the understanding of the decision of this appeal appear in the opinion of Chief Justice Shepherd.

Civil action, tried before Boykin J., and a jury, at Spring Term, 1894, of Lincoln Superior Court on appeal from a Justice of the Peace. * The plaintiff complained that the defendant was indebted to him in the sum of $90.25, and interest on the same from January 1, 1894, until paid, the same being due by contract for rent of two storerooms and office, from October 1, 1893, to January 1, 1894.

Civil action, heard on complaint and demurrer, before Winston, J., at September Term, 1894, of Mecklenburg Superior Court. The complaint alleges a contract between plaintiff and defendants, whereby the latter agreed to buy and pay for certain lots in the city of Charlotte, the tender of a deed, and refusal by defendants to comply with their contract.

<p>This was a special proceeding instituted before the Clerk of the Superior Court of MeckxeNburg County for the partition of the real estate described in the petition.</p> <p>As ssues of fact and of law were raised by the pleadings, the case was transferred by the Clerk to the Superior Court for trial.</p> <p>It was agreed that the issues might be heard by his Honor Judge Winston at chambers as of the term of Court.</p> <p>The rights of the defendants in the real estate described in the petition accrued long prior to the year 1887, to-wit, about the-year 1866.</p> <p>The defendants contended, first, that as the rights of the defendants accrued prior to the act of 1887 the petitioners were in no event entitled to partition; and second, that, as there was an estate durante viduitate outstanding, the petitioners, as against the defendants, were not entitled to partition.</p> <p>There was no contention as to the interest of the parties not having been properly set forth in the pleadings. After argument by counsel for plaintiffs and defendants his Honor rendered judgment as follows:</p> <p>“ That the act in relation to partition (chapter 214, Acts of 1887) was intended to apply, and does apply, to life estates -existing at the date of its passage.</p> <p>“ That said act affects the remedy only, and, besides, does not interfere with vested rights and is, hence, constitutional. Finally, that an estate durante viduitate is a life estate, and such an one is contemplated by the act aforesaid.</p> <p>“ The Court considers and adjudges- that the plaintiffs, life tenant and remaindermen are entitled to have partition of the land described in the partition.</p> <p>“ The Court is further of the opinion, and so adjudges, that as to the lot in the city of Charlotte, on Tryon and Fifth streets, and described as the first tract in the petition, owing to the small quantity of the land and the number of the tenants, actual partition of the same cannot be had without injury to some or all of said tenants in common, and that said land ought to be sold at public auction, as provided in such cases by the statute.”</p> <p>After appointing a commissioner to make a sale, the judgment proceeds:</p> <p>“ The Court is further of the opinion, and adjudges, that the widow is not entitled to have the value of her life estate determined and paid to her in cash, but that she is entitled only to the interest on the value of her said estate, to be received and paid to her annually. The fund arising from such sale said Commissioner will pay into Court, and the same will be invested and secured to said widow and remain-derman in such manner and with such safeguards as the Court shall direct and decree and deem wisest and best for all the parties to this proceeding.</p> <p>“ The Court is further of the opinion, and so considers and adjudges, that the second tract described in the petition as containing sixty acres, is susceptible of actual partition, and directs that actual partition thereof be made between the parties in interest, and to this end J. H. McAden, H. C. Eccles and H. G. Springs are hereby appointed to partition the same among the parties in interest, and that the said Commissioners charge the more valuable portions with such sums in favor of the less valuable portions as may be necessaay to equalize the several portions among the parties, and that the said Commissioners make report of their proceedings in the premises to this Court.”</p> <p>The defendants excepted to the judgment and decree, and appealed therefrom, assigning as error: 1st, that his Honor held that the petitioners were entitled to partition in any event; 2d, that his Honor held that the Act of 1887 was applicable to this cause; and 3d, that his Honor held that the petitioners were entitled to partition, notwithstanding the existence of the estate durante viduitate.</p>

This was a motion made before the Clerk of the Superior Court of Polk County to have another execution issued in the action, which was for the recovery of land. The motion was refused, and, on appeal to Graves, J, the ruling of the Clerk was approved, and plaintiff appealed. The other facts appear in the opinion of Associate Justice Clark.

<p>Practice — Case on Appeal — Motion to Rem,and — Appeal from an Interlocutory Order —Amendment.</p> <p>1. Where there is no case on appeal, and the appellant has been in no laches, a motion to remand would be allowed, if a case on appeal were essential.</p> <p>2. An appeal does not lie from an interlocutory order before final judgment.</p> <p>3. The granting or refusing an amendment is a matter of discretion, and ' no appeal lies therefrom.</p>

<p>• Civil action, tried before Armfield, J., and a jury, at December Term, 1893, of Buncombe Superior Court.</p> <p>The facts appear in the opinion of Associate Justice Avery. The plaintiffs appealed.</p>

Petition to rehear this cause, which is reported in 112 N. C, 778. It was first before this Court on appeal of defendant, at September Term, 1892 (111 N. C., 427), when a new trial was granted him. The errors set out in the defendant’s petition for a rehearing are as follows: “ 1. It was erroneous to construe the instrument sued on solely by what appeared upon its face, and to exclude from consideration the surrounding circumstances. “ 2.

Civil actioN, to recover damages for personal injuries, tried before Mclver, J., at Spring Term, 1894, of Buncombe Superior Court. • The complaint alleged, in substance, that the defendants being the owner of a lot of land in Asheville, employed one E. H. Britt to excavate it (preparatory to building a house thereon) under the superintendence, control, management and direction of the defendants; that said Britt, “ under the supervision, control and direction of the…

Civil action, brought against the defendant by plaintiff for the rescission of contract and cancellation of deeds for land, upon the ground of a false representation as to the value of land sold by defendant to plaintiff, tried before Armfield, J., at Fall Term, 1893, of Swain Superior Court. Upon an intimation by his Honor that, in no aspect of the case, could the plaintiff recover, he took a nonsuit and appealed.

This was a motion by Iowa George and others for an order to stay a writ of possession, upon petition and affidavit, made after the judgment of the Supreme Court in the original action reported in 113 N. C., 537. The motion was .refused, and petitioners appealed. The salient facts appear in the opinion of Associate Justice Clark.

<p>Construction of Will — Contingent Remainder — Contingency with Double Aspect — Partition—Warranty.</p> <p>1. A testator, after a limitation to his wife for life, provides as follows : “ At the death of my said wife, the said plantation, with all its rights and interests, I bequeath and devise to our seven sons (.naming them) or such of them as may he living at their mother’s death, and to their heirs, share and share alike ; and if any one or more of our said sons should be dead, leaving lawful issue, said issue shall take the deceased father’s share in each and every such case ”: Held, that the limitation to each of the sons was a contingent remainder upon a contingency with a double aspect, vesting on the mother’s death in case of his survival, but, in case of his death before his mother, never vesting in him, but by substitution vesting in his issue who take nothing from their father, but directly from the devisor as purchasers.</p> <p>2. Where, in such case, one of tl^e contingent remaindermen conveys his interest in the land with general covenant of warranty and dies before his. mother, those in whom the estate afterwards vests are not bound by the warranty, even.though they would have been his heirs, for they take by purchase and not by descent.</p> <p>8. Persons to whom a remainder is limited, subject to the death of their father before the life tenant, are not bound by proceedings for partition to which the life tenant and the other remaindermen, but not their father, were parties, for, the limitations being purely legal, and not in trust, such persons could not be deemed to be represented by others of the same class or by the life tenant. (Irvin v. Clark, 98 N. C., 437, and Overman v. Tate, 114 N. C , 571, cited and distinguished).</p> <p>4. Contingent remaindermen, not represented either by guardian or attorney, and not named in the process, pleadings or decree, are not bound by proceedings for partition instituted by the other remain-dermen and life tenant.</p> <p>5. Where the rights of a contingent remainderman accrue at the death of the life tenant, the statute begins to run only from that event.</p>

Civil action, for damages alleged to have resulted to the plaintiff's dam and fish trap by floating logs placed in the French Broad river by the defendant, tried at Spring Term, 1893, of Buncomebe Superior Court, before Graves, J. The following were the issues : “1. Was the plaintiff the owner of the dam and fish trap at the time of the alleged injury ? “ 2. Was plaintiff in the possession of the dam and fish trap at the time of the injury alleged in the complaint ? “ 3.

This was a proceeding by writ of habeas corpus to obtain the custody of an infant child, a boy of nine and a half years of age, brought by its mother against its father, under a decree obtained in Colorado, dissolving the marriage and awarding the custody of the child to the wife, the husband being domiciled in this State and not appearing in person or by attorney in such action for divorce, and pretended service being made on him by publication.

Civil action, tried before Allen, J., at Fall Term, 1894, of Burke Superior Court. The action was to recover damages against defendant corporation for injuries to certain bridges across the Catawba river, known as the Rocky Ford and Lovelady bridges, and to a bridge across Johns river, known as Johns river bridge, and to restrain the defendant from floating logs down said river. A jury trial was waived, and his Honor found (among others) the following facts: “ 7.

This was a motion by defendants to dismiss, heard before Poylcin, J., at Spring Term, 1894, of Mecklenburg Superior Court.

Action for damages, tried before Graves, J., and a jury, at_Term, 1893, of Beaufort Superior Court. From judgment'for plaintiff, defendant appealed. The facts appear in the opinion.

Action for damages, beard before Craves, J., and a jury at Pall Term, 1898, of Beaufort Superior Court. The facts are the same as those of Hansley v. Railroad, page 602, supra. Defendant appealed from the judgment for plaintiff.

Civil actioN, beard at Spring Term, 1894, of Chowan Superior Court, by Armfield, J, and a jury. It was in evidence that the defendant owned several steamboats, fully manned and equipped, which it used in its business upon its regular line.

Civil action, begun before a Justice of the Peace and tried on appeal at Fall Term, 1898, of Craven Superior Court .before Bynum, J., and a jury. The plaintiff sought to recover $150 as damages for the loss of property by fire at the company’s depot at Newbern. The defendant denied the allegations of the complaint.

This was an action for the recovery of the possession of a sawmill and fixtures, and for damages for detention of the same, tried before Graves, J., and a jury. The plaintiffs claimed title through a bill of lading issued to DeLoatch Mill Manufacturing Company, which plaintiffs claim was transferred to plaintiffs Maddox, Rucker & Co. by DeLoatch Mill Manufacturing Company.

This was a civil action, tried before Bynum, J., and a jury, at February Term, 1894, of WilsoN Superior Court.

Civil action for damages, tried before Bynum, J., and a jury, at Spring Term, 1894, of MartiN Superior Court. From a judgment for the plaintiff the defendant appealed. The facts appear in the opinion.

This was a civil action, tried before Hoke, J., and a jury, at Pall Term, 1894, of the Superior Court of Chatham County. The plaintiff tendered the following issues: “1. Did the defendant negligently destroy the plaintiff’s wagon and injure his mules and daughter?- •“2. Was the plaintiff guilty of contributory negligence ? “3. If so, could the defendant, notwithstanding the contributory negligence of the plaintiff, have avoided the injury by the exercise of ordinary care? “4.

This was a civil ACTION for damages, tried before his Honor Shuford, J., and a jury, at April Term, 1894, of PersoN Superior Court. The plaintiff alleged that while he was attempting to board' a passenger car on a “ mixed train ” of the defendant Norfolk and Western Railroad Company at Roxboro, N. C., certain freight cars were negligently backed, with great violence,, against the passenger car, and the plaintiff was severely injured on his head, and thereby lost his eyesight.

Civil actiost, tried before Brown, J, at August Term, 1894, Moore Superior Court, being an appeal from Justice of the Peace. The plaintiff brought action to recover the value of certain turpentine alleged to have been destroyed by fire communicated by defendant’s engine, April 1,1893. The defendant denied the allegations that it had been guilty of any negligence. The plaintiff admitted that the engine of defendant was in good condition and had a proper spark arrester.

Action for damages, heard on complaint and demurrer, at Fall Term, 1894, of McDowell Superior Court, before Allen, J. The demurrer was sustained, and plaintiff appealed. The facts appear in the opinion of Chief Justice Shepherd.

Civil action, tried before Hoke, J., and a jury, at December Term, 1893, of Pitt Superior Court.

PetitioN to rehear the case between the same parties decided at September Term, 1893, of this Court, and reported in 113 N. C. Reports, page 394.

Criminal action tried by Armfield, J., and a jury, at Spring Term, 1894, of Pasquotank Superior Court. The following is the special verdict and the judgment: “We the jurors empaneled to try the above cause find the following special verdict: “1.

<p>Indictment for Killing Live Stock — Hogs Running at Large— Injury to Personal Property — Cruelty to Animals — Indictment, Sufficiency of — Town Ordinance.</p> <p>1. It is competent for an incorporated town to enact an ordinance that no hog shall run at large within the town limits, and to presraribe a penalty for its violation, whether the owner lives within or outside the corporate limits.</p> <p>2. One who kills a hog running at large in a town in violation of an ordinance prohibiting hogs from running at large therein, although i he owner lives outside the corporate limits, is not indictable under The Code, § 1002, which applies only to the injury or killing of live stock “ lawfully running at large.'’</p> <p>3. An indictment for killing a hog running at large in a town in violation of a town ordinance prohibiting the running at large of hogs therein, which charges that the killing was done “unlawfully and on purpose,” cannot be sustained under section 1082 of The Code, where there is neither an allegation nor finding that the injury was “wilfully and unlawfully” done; nor, for the same reason, can it be sustained under section 2482.</p>

Indictment for murder, tried at the Criminal Court of Hertford County, before Winborne, J. The only, exception relied upon by counsel in this Court, was that as to the admissibility of the confessions of the prisoner. It was in evidence that the prisoner was.an infirm and diseased old woman.

Indictment for assault and battery with a deadly weapon upon one Ray, an officer, tried at the March Term, 1894, of the Superior Court of Martin County, before Bynum, J. The officer Ray had a warrant for the arrest of one Johnson for assault and battery, and after summoning a posse proceeded to the house of the defendant where he demanded admittance with his posse for the purpose of making the arrest under said warrant.

Indictment for perjury, tried before Bynum, J, at September Term, 1894, of Wake Superior Court.

<p>Indictment for Forgery — Practice—Mistrial—Former Jeopardy— Variance — Idem Sonans.</p> <p>1. A mistrial in a case not capital is a matter of discretion, and hence the plea of former jeopardy because of a mistrial.ordered on a former trial of a defendant for the same offence was properly overruled.</p> <p>2. It was competent on a trial for forgery for the State to-show that a witness whose name was W. W. Vass was commonly known as “Maj. Vass.”</p> <p>3. Where an indictment for forgery charged that the name forged was ■ “ Major Vass,” evidence that the signature was “ Maj. Vase” was no variance, the name being idem sonans.</p> <p>4. To sustain an indictment for forgery it is not necessary that the forgery should have been “ calculated to deceive and did deceive,” but only that there was a fraudulent intent to deceive by a forged paper, however awkward or clumsy the signature may be.</p>

, upon the following' warrant and special verdict: Warrant. — “J. W. Crowell, being duly sworn, complains and says, that at and in said county, and in Wilson township, on or about the 1st day of September, 1893, W. C. Gorham ■did unlawfully and wilfully put up lightning-rods on the house of James E. Rountree without having paid the tax imposed by section 27, Revenue Act of 1898, against the form‘of the statute in such case made and provided, and contrary to law and against…

This was an issue in bastardy proceedings, tried before Whitaker, J., and a jury, at March Term, 1894, of Wilkes Superior Court. The defendant was found guilty, and ordered to pay a fine of $10 to the State, and an allowance of $85 to the prosecutrix, and costs of the action. Upon defendant being unable to pay said fine, allowance and costs, he was committed to the common jail of Wilkes County.

Indictment for slandering an innocent woman, under section 1113 of The Code, tried before Battle, J, and a jury, at July Term, 1894, of Rockingham Superior Court. The defendant is charged with attempting in a wanton and malicious manner to destroy the reputation of the prose-cutrix, an innocent woman, by speaking words in substance as follows, to wit, that he, the defendant, had on several occasions had sexual intercourse with the prosecutrix.

.Indictment for violation of an ordinance of the town of Wadesboro, heard on appeal from a judgment of the mayor •of said town, before Brown, J., and a jury, at Fall Term, 1894, of ANSON Superior Court. The jury, by consent, returned the following special verdict: “ That the defendant J. M. Horne went to a livery-stable in said town to order his horse.

Indictment, tried at May Term, 1894, of Forsyth Superior Court, before Whitaker, J., and a jury. The defendant was indicted for selling liquor without a license.

<p>(Same party and like facts, as in foregoing case).</p>

Indictment for larceny, tried at Spring Term, 1894, of YadkiN Superior Court, before Battle, J., and a jury. The evidence on which the State relied was entirely circumstantial. Counsel for the defendant, in addressing the jury, said it had been laid down as a rule governing circumstantial, evidence that the proof must be as convincing as if one credible eye-witness had testified to the facts.

Indictment for fornication and adultery, tried before Boykin, J., and a jury, at Spring Term, 1894, of Lincoln Superior Court. The defendants were convicted and the feme defendant appealed. The facts necessary to an understanding of the opinion appear therein.

<p>This was an indictment for larceny, tried before Whitaker, J., and a -jury, at May Term, 1894, of Forsyth Superior Court.</p> <p>The State offered the following evidence :</p> <p>Asa Dun kins testified that about the 16th of January, 1894, he had several barrels of brandy stolen from his place in Yadkin County, about three miles beyond the Shallow Ford, on the Yadkin river. That the brandy was “ blockade.” He had it concealed near the house, in a piece of woods; part of it in a hole in the ground, about twenty-two miles from Winston. That the day beforé the brandy was stolen, about noon, he met defendant and one John Bolin about one mile from Winston, going towards the Shallow Ford in a two-horse wagon. That the brandy was taken that night. That the next day, when he missed the brandy, he instituted search and found that two two-horse wagons had crossed the Shallow Ford, left the main road which passed through the village of Huntsville, and turned off along a by-road through Conrad’s plantation, stopped near where the brandy was concealed, and there were signs of the brandy having been rolled out to the wagons and loaded. That near the place, in Conrad’s field, he saw where the team had started, and near by found a plow-handle had been broken off of a plow. That he followed the track back to the main road at Shallow Ford, coming towards Winston, where other vehicles had obliterated the track. That the next day he came to Winston, procured a search warrant, and searched defendant’s house, his brother Thomas Kiger’s house, and found an empty barrel with a sourwood stopper which he thought was his in Thomas Kiger’s house. That afterwards he searched the premises of Jack Kiger, a brother .of defendant’s and Thomas Kiger, and found six barrels of his brandy concealed in a gully near Jack Kiger’s house, covered up with pine trees, that had been cut across the gully, with prints showing that barrels had been rolled from Kiger’s house through the old-field pines. That Jack Kiger lived one-fourth of a mile from the Shallow Ford road, between Winston and Shallow Ford, about nine miles from Winston and three miles this side of Lewisville. That he knew the barrels by private marks upon them; they were his barrels and were filled with peach and apple brandy, as his were.</p> <p>This evidence was objected to by defendant, upon the ground that the indictment did not describe the barrels. Exception overruled. Defendant excepted.</p> <p>Defendant Thomas Niger and Thomas Bolin and William Bolin were indicted together, but the other three defendants had not been taken, and S. L. Niger alone was on trial.</p> <p>William Bevil testified that the evening before the brandy was taken he saw defendant and John Bolin pass along the Shallow Ford road, going towards Shallow Ford, in a two-horse wagon. Several witnesses testified that all four of the defendants passed through Lewisville about 8 o’clock on night the brandy was taken ; stopped at a store, left the wagon in the road, bought crakecrs and sardines, and had a bottle and took a drink and left. There was evidence that two wagons passed a house about one hundred yards from Shallow Ford, coming towards Winston, about 1 or 2 o’clock at night, same night brandy was stolen. That two men were walking. The wagon appeared to be loaded, and was covered with sheets or quilts; that one of .the parties walking called to the driver of the front wagon to “ hurry up, it was getting d — d late.” A wagoner testified that two wagons, appearing to be loaded, passed his camp near Lewisville, on the Shallow Ford road, going towards Winston, about 2 o’clock night of the theft, with four men, two driving and two walking behind with guns.</p> <p>Norman Whitman testified that he lived on the Shallow Ford road, between Westbend and Jack Niger’s, and about twelve miles from Winston. That about 4 o’clock the morning of the theft the defendant came to his door, woke him up and got a'lantern, a hammer and some nails, telling him he was from Davie County, and had broken a wagon and wanted to mend it. That he saw him go out into the road where the wagon was standing. That he fixed it and came back with the lantern and hammer. That the next day he went to the place where the wagon was, and saw where they had apparently been working on the wagon, and then picked up a piece of a plow-handle, which he gave to Asa Dunkins.</p> <p>Dunkins testified that he took the piece of plow-handle back to Conrad’s field, near where his brandy was stolen, and fitted the broken handle together in the plow, and it was the piece which had been broken off and carried away.</p> <p>It was in evidence that all four of the defendants lived in the suburbs of Winston, but that John Bolin had worked for the prosecutor in Yadkin, and knew where he kept his “ blockade” liquors, and helped to dry the corn.</p> <p>The defendant introduced no testimony. One of the counsel for the prosecutor, in addressing the jury, said the defendant had called ten witnesses and had them present himself, but that he had failed to show by any witness where he was that night.</p> <p>To this the defendant objected, and asked his Honor not to allow the comment of counsel.</p> <p>His Honor stated that counsel was about to get on dangerous grounds, but that he did not comment on what the defendant did or did not do, but as to the other witnesses it was admissible to thus comment.</p> <p>Another one of the State’s counsel, while addressing the jury, turned and faced the defendant, sitting near his counsel, and said : “ Your brother Jack Kiger knows whether you brought that brandy to his house. He is here in the courthouse. Why, if you did not carry it there and conceal it, did you not show it by him ? ”</p> <p>Defendant’s counsel here interrupted the comment, and said that Jack Kiger had been summoned as a State witness and sworn, but not tendered to the defendant, and asked the Court to stop the counsel. His Honor stated that he could not see that the comment was improper, and directed the counsel to proceed. Defendant excepted.</p> <p>Counsel continued on that line of argument, saying to the jury: “ His Honor does not say that I am off the track.”</p> <p>There was no instruction prayed by either party. There was a verdict of guilty. ■ Motion for new trial for errors excepted to, and on the additional ground that there was not evidence sufficient to go to the jury and to justify a verdict, but no such point was made before verdict. Motion overruled. Judgment and appeal.</p>

Indictment for secret assault, under section 1, chapter 32, Acts of 1893, tried before Allen, J., at Fall Term, 1894 of McDowell Superior Court. The defendant pleaded not guilty. The only witness introduced was one Erwin, who testified that sometime in the spring of 1894 he was present at a dance near Marion. That it was in the nighttime, and there were a good many persons present. That the dance was at a house in which there were two rooms.

<p>Criminal action, tried at September Term, 1894, of Burke Superior Court, before Allen, J.</p> <p>The indictment is, in substance, as follows: “The jurors, etc., present that Rachael Shade, etc, unlawfully, wilfully, maliciously, feloniously and in a secret manner, and with a certain deadly weapon, to wit, a pistol, in and upon the body of one Rose Wright did make an assault with the intent then and there to kill the said Rose Wright, her the said Rose Wright did beat, bruise and seriously injure, against the form of the statute,” etc. The case states that the defendant was charged with committing a secret assault under chapter 32, Laws 1887, with a pistol upon Rose Wright, and evidence was offered by the State tending to prove the charge as alleged, and evidence in rebuttal was offered by defendant.</p> <p>There was a verdict of guilty, and defendant moved in arrest of judgment for that the indictment did not charge that the assault was committed by waylaying, and did not specify the secret manner in which it was committed. Motion overruled. Defendant excepted. No exception made to the charge. Judgment pronounced upon the verdict, and defendant appealed.</p>

<p>This was an indictment for an affray with deadly weapons, tried before his Honor Bynvm, J., at February Term, 1892 of the Superior Court of UNION County.</p> <p>The defendant Crook plead guilty, and the defendant Gur - ley stated in open Court that he would no longer contend, against the State, and upon the motion of the Solicitor the Court made the following order: “Judgment suspended against both defendants upon the payment by the defendant Crook of all the costs of the case, to be taxed by the Clerk of this Court.” The defendant Crook was given time to pay the costs, and was required to give bond for his personal appearance at the next term of the Oour;t, the bond being renewed from time to time in order that the defendant Crook could the more easily pay said costs, which was a very large amount. The defendant so appeared at the said term of said Superior Court and so renewed his bond from time to time until August Term, 1894 — the present term of said Court, began and held on the 20th day of August, 1894, to and including the 1st day of September, 1894 — when the defendant Crook came into Court on the first day of the term, it being the 20th day of August, 1894, and stated to the Court that he had paid part of said bill of costs, some $60 or $70, none of the Court costs or State’s witnesses, except Solicitor’s fee of $8, which was paid by defendant Crook. Thereupon his Honor, Winston, J., upon motion of the Solicitor, placed the defendant Crook in the custody of the Sheriff, who committed him to the common jail of said county, where he remained until Saturday, the 1st day of September, 1894, the same being the last day of the two weeks term of said Superior Court, and the twelfth day that said Crook had been in jail, when his Honor, Winston, J., just before Court'adjourned for the term, had the defendaut Crook brought into Court and adjudged that he be confined in the common jail of said county for six months with leave to the Commissioners to hire him out, he not having paid or arranged the said costs.</p> <p>To which judgment the defendant Crook excepted and appealed, assigning as error the ruling of his Honor and the judgment of said Court—</p> <p>“1. That the former order or judgment of the Court made in February, 1892, that the defendant Crook pay all the costs in this case, including the costs of his co-defendant Gurley, was a judgment of the Court against the defendant Crook, and the judgment having been performed in part, to wit, a payment of a part of the costs, it was no longer in the power of the Court to change said judgment and imprison the defendant.</p> <p>“ 2. That the defendant having stated to the Court that he was unable to pay the balance of said bill of costs, and the Court having ordered the defendant into the custody of the Sheriff, that said order was, by implication, a judgment of the Court and an order to the Sheriff to imprison the defendant until the cost was paid or he be discharged according to law, and the defendant Crook having been in jail twelve days of the twenty or thirty days necessary to remain in jail to be discharged under the insolvent debtor’s law, had thereby executed a part of this judgment, and it was no longer in the power of the Court to change the judgment in a manner to make it more harsh.”</p>

Indictment for libel, tried before Jones, J., at May Term, 1894, of Buncombe Criminal Court.

Indictment for libel, tried before Jones, J, and a jury, at April Term, 1894, of the Criminal Court of Buncombe County. During the empaneling of the jury the defendant had challenged peremptorily three jurors. The fourth was presented and challenged for cause. The said juror was a talis •juror. The cause assigned, the failure to pay his taxes for the previous year. The evidence was that he had paid his taxes for the year 1892, but not for 1893. The Court held him competent.

The defendants William Adams and Susan Adams, his wife, were indicted for larceny of cotton, the property of one Palmer, and were tried before Meares, J., and a jury, at February Term, 1894, of the Criminal Court of Mecklen-burg County. The facts are sufficiently adverted to in the opinion. • On the trial the first witness introduced by the State was one T. J. Wilson.

<p>This was an indictment under section 1087 of The Code, charging the defendant with cutting away and destroying a certain milldam the property of John Hildebrand, tried in the Criminal Court of BunooMBE County before Jones, J.</p> <p>The defendant pleaded not guilty. The counsel contended, among other things, that if he did destroy so much of the dam as would bring it down to the height of the original dam before Hildebrand rebuilt and raised it, he did it in the exercise of his right to abate the public nuisance. The prosecutor conveyed a tract of land to three persons in 1886 by deed containing the following clause: “Reserving and excepting to the parties of the first part, their heirs and assigns, the perpetual right and privilege of backing water from their milldam on the land herein conveyed, and of raising and rebuilding the dam, in case it washed away, at their pleasure, and all without cost, charge or expense to said parties of the first part, their heirs and assigns, on account of land damaged thereby or on any account; the parties of the second part, their heirs and assigns, being allowed to take all the ice that may be in the pond, and the right also of hauling out the mud that may accumulate in said pond.”</p> <p>On June 18, 1891, the said J. R., M. J. and R. H..Zachary conveyed the said seventy-three acres of land to D. Augusta Bean, and said Bean, on June 8,1892, conveyed the said land to the defendant D. D. Suttle. Neither of the two last mentioned deeds contained the provision above quoted from the deed of Hildebrand and wife to the Zacharys.</p> <p>There was evidence on the behalf of the defendant tending to show that the Hildebrands, in raising and rebuilding the said milldam, raised it to a height greater, by from four to six feet, than it was at the time of the conveyance by Hildebrand and wife to the Zacharys, or had been at any time between said conveyance and said raising and rebuilding. There was also evidence tending to show that the defendant did not cut the dam away so as to make it lower than it was when said Hildebrand and wife conveyed the land on which the dam was situated to said Zacharys, but the dam was left by the defendant higher by one foot than it was when said last mentioned conveyance was made, or had been at any time between the execution of said last mentioned conveyance and the time of raising and rebuilding said dam. There was also evidence tending to show that said Hildebrand had neglected said milldam — had permitted the dam to fill to a depth of five or six feet with mud, and the woodwork to go to decay and ruin. There was evidence to show that the wheel to be turned by the water from said dam was an overshot wheel, about twenty-three feet in diameter; was situated __ yards below said dam; had not been changed from the place where it was originally fixed about twelve years ago, but had sunk or settled down about one foot. It was also in evidence that after the defendant had cut away the portion of the top of the woodwork of the dam, the water stood in the dam four feet above the top of the wheel.</p> <p>His Plonor charged the jury, among other things, as follows :</p> <p>“ That the reservation in the deed gave to Hildebrand the following rights : If the dam washed away he had the right to rebuild it, and in doing so he had the right to build it to a height sufficient and necessary to enable him to use the water of the pond for the purposes of running his mill and machinery, and if in so building he did build it or raise it higher than it was at the date of the deed containing the reservation, and such increased height was necessary for the purpose just mentioned, he had a right to do so, and if the water backed on the land further than it was at the date of said deed, this gave the defendant no right to destroy the dam, or to even cut it down to the original height. The reservation did not give Hildebrand the right to raise the dam, unless it was necessary for the purposes already mentioned, and if he raised the dam to a greater height than it was at the date of the deed unnecessarily, and in consequence thereof the land of Suttle was damaged, then Suttle had the right to cut the dam down to the original height, but no lower, and you could not convict him. The question is not whether, at the time the defendant cut the dam, the water was higher than it was four years ago, but whether it was higher than it was at the date of the deed from Hildebrand to Suttle, to wit, September 16, 1886. He had a right to rebuild it to such a height as was necessary for the purpose of running that mill. If it was necessary for him to raise it higher than it was at the date of that deed, he had that right, and if in consequence the water backed on Suttle’s land, there is a provision in this reservation that he should do this without damage or loss to himself, and Suttle had no right to go there and cut it down. On the other hand, this right in Hildebrand was one of necessity, and he had no right to raise the dam unnecessarily, or to raise it to any height he might please, but only in the way and for the purposes that I have described to you. If he went there and raised it in order to injure Suttle, or to annoy him and to pond his land, then Suttle would have the right to go there and cut it down.</p> <p>“Now there is another thing you must remember, and that is that you must fix the date in your mind. A good many of the witnesses said they were familiar with the heights of that water four and six years ago, and that after Hildebrand rebuilt the dam it was higher than it was then. The date that you must keep in your mind is the date of the deed in 1886, and the question before you is not whether it was higher than it was in 1889 or 1890, but whether it was higher than it was in 1886. The question is not whether, w'hen the defendant cut the dam, it was higher than it was three or four years ago, but whether it was higher at that time than it was in 1886.”</p> <p>There were various exceptions to the charge by the defendant. There' was a verdict of guilty, and from the judgment thereon the defendant appealed.</p>

Indictment for murder, tried before Shuford, J., and a jury, at March Term, 1894, of Durham Superior Court. It appeared in evidence that the defendant pushed two pins down the throat of her infant bastard child, and thus caused its death. One of the pins was a black pin, worn by defendant in her hair, the other worn in her dress.

Indictment for murder, tried before Meares, J., at August Term, 1894, of the Criminal Court of Mecklenburg County.

This was an indictment for murder, tried before Boykin, J., and a jury, at Spring Term, 1894, of Rutherford Superior Court. A special venire was returned by order of the Court, and a jury selected and empaneled. The State’s witnesses had been sworn and one of them had begun to testify. He was interrupted by one of the jurors, who stated that he was sick and unable to continue to serve as a juror. He was examined at length by the Court touching his physical condition.

<p>Indictment for murder, tried before Jones, J, and a jury, at October Term, 1894, of the Criminal Court of BuNCOMbe County, and the following are the defendant McDaniel’s exceptions to his Honor’s charge to the jury:</p> <p>1. His Honor charged the jury, among other things, as follows : “ The question of their lives and deaths is in your hands. You must act honestly, conscientiously and fearlessly.” To which McDaniel excepted.</p> <p>2. His Honor charged the jury, among other things, as follows: “As in my opinion there are no facts in this case from which you can infer that the killing was excusable, justifiable, accidental or manslaughter, I shall not define the law in regard to said offences, or give you the definitions. So, according as you shall find the facts to be, the prisoners are either guilty of murder in the first degree, murder in the second degree, or not guilty.” To which the defendant McDaniel excepted.</p> <p>3. His Honor charged the jury as follows: “A man may be intoxicated, and still have mind enough to plan, deliberate and premeditate. If the intention to kill is deliberately formed, is premeditated, then the mere fact that the defendant was drunk, wrll not make the crime murder in the second degree.” To which the defendant McDaniel excepted.</p> <p>4. His Honor charged the jury as follows: “The Court charges you that if any of the evidence is sufficient to raise in your minds a reasonable doubt as to whether the defendant Billy McDaniel formed a deliberate, premeditated design to kill the deceased, then it is your duty to give him the benefit of such reasonable doubt, and he cannot be convicted of murder in the first degree, but only in the second degree, and your verdict should so be.” To which the defendant McDaniel excepted.</p> <p>5. His Honor charged the jury as follows: “If, notwithstanding the fact that you may believe that the defendant was intoxicated, you are satisfied beyond a reasonable doubt that he had mind sufficient to plan a formed design to kill the deceased, that he deliberated and premeditated upon the killing in consequence of his formed design, deliberation and premeditation, then the fact of the intoxication of the defendant would not even then justify him, but your verdict should be murder in the first degree.” To which the defendant McDaniel excepted.</p>

Proceedings in habeas corpus, tried before Mclver, J. The petitioners Hall and Dockery were incarcerated in the jail of Cherokee County, on a warrant issued by a Justice of the Peace, charging them with being fugitives from justice fiom Tennessee for killing in said State one Andrew Bryson. The Judge refused to discharge the prisoners, and recommitted them to jail to await the warrant of extradition, and they appealed.

<p>Appeal from Superior Court, VaNCe County; Bryan, Judge.</p> <p>Action by W. H. Rowland against the Old Dominion Building and Loan Association, a Virginia corporation, and T. M. Pittman, for an accounting. From the judgment on report of referee, Pittman appealed.</p>