Volume 116 — North Carolina Reports

Civil action, tried at Spring Term, 1894, of Hertford Superior Court, before The defendants J. N, 'Beasley and wife, Mary A. Beasley, borrowed money and gave their promissory note for the same, payable to N. E. Beale, on January 1, 1890, and executed a mortgage, duly probated and recorded, on a certain tract of land belonging to said Mary to said N. E. Beale, to secure the payment of their said note, with the usual power of sale in case of default in such payment, and on the…

<p>Civil actioN, for trespass in cutting trees and removing timber from land, tried at Spring Term, 1894, of Beaufort Superior Court, before Armfield, J. The issues submitted and the responses to them were as follows :</p> <p>1. Was George W. Dixon dead at the time of the institution of the proceedings by his alleged administrator to sell his lands and at the time of the sale thereunder?' Answer: Living.</p> <p>2. Are the plaintiffs the owners of the timber standing upon the lands described in the complaint? Answer : No.</p> <p>3. Did the defendents unlawfully take possession of the said timber and convert it to their own use? Answer : No.</p> <p>4. What is the value of the said timber ? Answer : —</p> <p>5. Did the defendants unlawfully take possession of the logs cut from the lands by plaintiffs ? Answer : No.</p> <p>6. If so what damage has the plaintiffs sustained thereby ?' Answer: None.</p> <p>7. Is the defendant Wm. M. Shavender the owner of the lands described in the complaint? Answer: Yes, the Mallison land, not Sears’ land.</p> <p>8. Did the plaintiff trespass upon said land. Answer: No.</p> <p>9. If so what damage has the defendant sustained ?' Answer: —</p> <p>The plaintiffs offered to connect themselves with G. W.. Dixon and to connect the defendant with the same source of title the following deeds were offered in evidence:</p> <p>1. A deed from R. C. Windley to plaintiffs, dated March 24, 1886, and properly recorded.</p> <p>2. A deed from W. G. Jarvis, administrator of George W.. Dixon, to R. C. Windley, dated May 17, 1882.</p> <p>3. A record of.special proceedings, No. 190, entitled “W. G. Jarvis, administrator of George W. Dixon, against George Ann Dixon and others.”</p> <p>. 4. A deed from Alfred Pilly to Geoi-ge W. Dixon, dated August 10, 1869. This deed conveyed a tract of land claimed by the plaintiffs to be the Sears land.</p> <p>5. A deed from M. Shaw, Clerk and Master, to Alfred Pilly, dated November 19, 1867. This deed is claimed to convey the Sears land.</p> <p>6. Necord in a foreclosure suit óf John L. Pilly against Duncan McLaughlin.</p> <p>7. A mortgage by Duncan McLaughlin to John L. Pilly, dated March 24, 1861. This mortgage is also claimed to cover the Seal’s land.</p> <p>8. A deed from Samuel L. Snell to George W. Dixon, dated February 27,1869. This deed conveys a tract known as the “ Franklin Mallison land. ”</p> <p>9. A deed from Elizabeth Dixon, wife of George W. Dixon, and others, children of George W. Dixon, to ¥m. M. Shavender, dated November 14, 1887. This deed conveyed to the defendant Wm. M. Shavender two tracts of land, known as the “ Franklin Mallison land and the William Sears land.” This deed was offered to show under whom defendant Shavender claimed and to estop him.</p> <p>As the case was made to depend upon the finding that G. W. Dixon was living at the time of the sale, at' which Windley bought, it is not necessary to give'more of the record. The other essential facts are stated in the opinion. The plaintiffs appealed.</p>

Civil aotioN, tried before Mclver, J., at Fall Term, 1894, of PasquotaNK Superior Court. Held: but before the court had formally adjourned for the term and after plaintiff’s counsel had gone home, on Saturday in'my room at the hotel without the knowledge or consent of plaintiff or his counsel, at the request of defendant’s counsel, I inserted the following words in the judgment before signed by me: “That if the ruling of the…

This is a controversy submitted without action upon an agreed state of facts, and heard before Boyhin, E, at February Term, 1895, of Beaufort Superior Court. His Honor rendered judgment in favor of defendants, and plaintiff excepted and appealed, assigning as error the holding that the defendants had a good and perfect title in fee. The facts are succinctly stated in the opinion of Associate Justice Furohes.

Petition for writ of habeas corpus, filed by B. B. Latham, to obtain the custody and control of his infant daughter, Julia E. Latham, and heard before his Honor J. D. Melver, Judge of the Superior Court, in the town of Washington, N. C., on Wednesday, December 5, 1891.

Civil actioN, tried before Graves, J., and a jury at Fall Term, 1893, of ChowaN Superior Court. There was a verdict for the plaintiff, and judgment thereon for $749.62, and defendants appealed. The facts appear in the opinion of Chief Justice Fairoloth.

Civin actioN, for the recovery of land, tried before Armfield, J., and a jury, at Spring Term, 1894, of ITebt-Rokd Superior Court. There was no objection to the rulings or charge of the Court, or to the issues submitted.

<p>This was a Civil actior tried before Armfield, J., and a jury, at Spring Term, 1894, PerquimaNS Superior Court. The action was upon a note and for the foreclosure of a mortgage given to secure it. The plaintiffs moved to amend the complaint and his replication by inserting in either a a judgment rendered in a Court in the state of Virginia, which judgment was recovered upon the note set out in complaint and since Fall Term, 1893, of Perquimans court. Motion overruled in discretion of the court. Exception by Plaintiffs. Upon the trial plaintiff offered said judgment to prove that Defendants still owed said note, or the debt evidenced by it. Objection by defendants. Objection overruled. The court admitted the evidence and instructed the jury that it concluded the defendants. Defendants excepted. (1) because the court erred in admitting the evidence, and (2) in holding that the defendants were concluded to introduce evidence showing payment of said debt or note. Jury rendered the verdict for the plaintiff. Defendants moved for new trial, (1) because the court admitted the judgment as evidence, and excluded all evidence of payment of the note offered by defendants. Motion overruled. Defendants excepted. Judgment against defendants, who appealed.</p>

When the opinion of this Court (114 N. C., 187) Aras certified to the Superior Court of Hyde county, the plaintiffs, at Spring Term, 1894, before Armfield, Jxodgepresid-ing, moved for judgment as follows : 1. Eor the sum of three thousand dollars, being the purchase-money paid by Carter to Spencer for the fifty acres of land, with interest on the same from December 10,1851, the date of the conveyance; or, 2.

<p>Practice — Appeal — Dismissal for Failure to Print Record — Motion to Reinstate.</p> <p>1. A motion to re-instate an appeal which has been dismissed for failure to print the record will not be allowed except for good cause shown.</p> <p>2. The fact that an appellant requested the Clerk of the Court below to ask the Clerk of this Court to have the record printed and send him the bill whieh'he would pay, but sent no money and concerned himself no further about it, will not entitle him to have his appeal, which has been dismissed, reinstated.</p>

2. That the defendant S. A. Gray is justly indebted to the plaintiff in the sum of $735.85, with interest from October 18, 1893, until paid, evidenced by a promissory note, a copy of which is attached, marked Exhibit A, the original of which plaintiffs have and are ready to produce when required. II.

<p>Superior Court Cleric — Duty of, to Successor in Office— Misjoinder of Causes of' Action, What is not.</p> <p>1. The right of a Clerk of the Superior Court to bring au action against his predecessor on the latter’s official bond to recover the records, moneys, etc., in his hands, does not rest on any injury done to the plaintiff, but on the ground that the law [Section 81 of The Code] requires that each successive clerk shall receive from his predecessor all the records, moneys and property of his office.</p> <p>-á. Section 1883 of The Code is not repugnant to the provisions of Section 81, but only gives an additional remedy for the benefit of individuals who have cause of complaint against , , an unfaithful clerk of the Superior Court.</p> <p>3. A person duly elected Clerk of the Superior Court by the people needs no order from any person or authority to demand from his predecessor the property of all kinds belonging to the office, nor is it necessary for a retiring Superior Court Clerk to be ordered to pay over to his successor, whether elected or appointed, the funds, etc., of the office.</p> <p>4. There is no misjoinder of causes of action where, in a suit by a Clerk of a Superior Court against his predecessor to recover the funds of the office, the complaint alleges separate and distinct causes of action for the benefit of separate and distinct persons or classes of persons.</p>

ActioN of Claim and Delivery, tried at March Term, 1894, of Halifax Superior Court, before Graves, J., on an agreed statement of facts as follows: “On November 19, 1887, one P. G.Solomon purchased a bay mare from W. M. Perkins, Jr., for the sum of one hundred dollars.

Civil action, tried before Armfield, J., and a jury, at Fall Term, 1894, of Northampton Superior Court. The action was originally commenced by Catherine T. Johnson, Camilla A. Johnson and Lnla Johnson as plain-tiffs, against J. T. Gooch as administrator de bonis non with the will annexed of Virginia A. Johnson as defendant, on August 28, 1882. W. W. Peebles and E. B. Peebles -were afterwards made parties defendants in 1883.

<p>Motion of plaintiff for writ of certiorari. Affidavits were filed in support of and in opposition to the motion. There was also a motion of defendant to affirm the judgment below.</p>

<p>Practice — Gertiorari—Failure to Settle Case on Appeal— Death of Trial Judge — New Trial.</p> <p>Where an appellant in apt time docketed the record proper and applied for. a certiorari, the case on appeal not having been settled by the trial Judge, though case and counter-case had been duly served, and in the meanwhile the Judge died, a new trial will be ordered.</p>

<p>Practice — Appeal—Death of Judge before Settling Case on Appeal — New Trial — Failure to Print Record, When Wot Laches.</p> <p>1. Where an appellant, having failed without laches on his part to get the case on appeal settled, docketed the record proper in this Court in apt time at the first Term after the trial below and instead of applying for a certiorari agreed with the appellee that the Judge should settle the ease at a subsequent time, and the Judge died before the case was so settled, a new trial will be allowed the appellant.</p> <p>2. In such case, the only alternative would be the withdrawal by the appellant of his case on appeal, or, by the appellee, of his counter-ease, and the hearing of the appeal on the remaining case, as was done respectively in Brake v. Connelly, 107 N. C., 463, and in Ridley v. Railroad, at this Term.</p> <p>3. In such case, it was not laches in the appellant to fail to print the record, since the appeal could not have been heard without the case settled, unless the appellee had given proper notice to the appellant that he would withdraw his counter-case and have the appeal heard on apx^ellant’s case.</p>

Civil ACTION for damages, for malicious prosecution, tried before Brown, J., and a jury, at Fall Term, 1894, of Cea YEN Superior Court. There was verdict'for the defendant and refusal of a motion for a new trial. The plaintiff appealed. The facts and errors complained of appear in the opinion of Associate Justice Montgomery.

Civil actioN to recover damages for malicious prosecution, tried before Brown, J., and a jury, at the Fall'Term, 1891, of CraveN Superior Court. Upon an intimation by the Court that there was not sufficient evidence to go to the jury of the want of probable cause for the prosecution or to entitle the plaintiff to recover, the plaintiff submitted to a non-suit and appealed. The facts sufficiently appear in the opinion of Associate Justice Clark.

Civil ACTION, heard at May Term, 1894, of Halifax Superior Court, before -, J. There was judgment for the plaintiff and defendants appealed, but the appeal having been dismissed, under Rule 17, for failure to docket the same, a motion to re-instate the appeal was made at September Term, 1894, of this Court and continued to this Term.”

This was an action brought to set aside the deed in trust, and tried before Armfield, J., and a jury, at Fall Term, 1894, of the Superior Court of EdgeooMee County. The plaintiffs offered in evidence the deed of trust; a note admitted to be owing to one of the plaintiffs, Carhart & Bros., by the said Jeffreys, for the sum of $302.00, and not paid and not named in the trust or assignment.

Civil actioN, for the recovery of land, tried before Winston, J., and a jury, at Fall Term, 1894, of Warbjsn Superior Court. The land sought to be recovered was the property of the defendant who, together with her husband, had executed a mortgage thereon to secure a debt to the plaintiff. A sale had been held under the mortgage at which one IT had bid it off but failing to pay the purchase money, he took a deed and reconveyed to plaintiff.

This case, begun on the 5th of March, 1878, was before this Court'at its September Term, 1888, upon exceptions filed by both plaintiffs and defendants to the rulings of His Honor, Judge Shepherd, made at June Term. 1886, of NORTHAMPTON Superior Court, and was reported in 101 N. C., 206. The numerous exceptions were carefully considered by this Court, the report corrected, and the account stated in the report in many of its items specifically modified and altered.

<p>Action for Breach of Contract — Pleading and Proof— Variance.</p> <p>1. A recovery cannot be had on the allegation of one canse of action and the proof of another for the reason that the defendant, however diligent, cannot prepare his defence to meet surprises.</p> <p>2. Plaintiff brought action on a contract whereby he agreed to act as agent of a building and loan association and to pay his own expenses, in consideration of being paid commissions for stock sold by him with renewal interest in monthly installments, alleging certain amounts to be due him on each, and alleged a wrongful repudiation of the contract by defendant The defendant pleaded payment of the amounts earned on the renewal interest, and on the trial plaintiff abandoned his claim as to the commissions and as to the breach of contract: Held, that plaintiff cannot recover the expenses incurred by him in behalf of defendant in rendering the services under the contract, that cause of action not having been pleaded.</p>

Civil action, heard at May Term, 1891, of Vance Superior Court, before Battle, Jon the report of referees. The action was instituted to recover of the defendant corporation the sum of $2,006.30, and interest, for goods sold and delivered, and the directors and stockholders of the defendant corporation were made parties to obtain injunc-tive relief against the threatened conversion of the assets, and to enable plaintiff to follow the fund if converted.

Civil ACTION, tried before Shuford, J., and a jury, at September Term, 1893, of YaNCe Superior Court. There was judgment for the plaintiff, and defendant appealed. The facts appear in the report of a former appeal (110 N. C.,' 267) and in the opinion of Associate Justice MONTGOMERY.

MotioN, heard upon notice and affidavits, before ITis Honor, Battle, J., folding the Court of the Third District, by exchange with Bynum, J., at Chambers, in Henderson, Yance County, on 21st May, 1891, in which the defendant against whom judgment had been rendered in an action to recover land, tried at January Term, 1894, of Franklin Superior Court, petitioned to be allowed betterments, etc., not having set up the claim on the trial.

Civil ACTION, for the recovery of land, tried before Bynum, J., at April Term, 1891, of Pitt Superior Court. There was judgment’ for the defendant, and plaintiff appealed. The facts appear in the opinion of Associate Justice Aveey.

This was a civil ACTION, tried before Bymim, J., and a jury, at April Term, 1894, of Pitt Superior Court. The action was brought for the recovery of the possession of certain personal property, including, among other things, cotton, corn and other crops, all of which were raised on a tract of land described in the complaint, and were embraced and conveyed in a certain agricultural lien or mortgage, executed by the defendant S. S. Easberry to one VY.

Civil actioN, tried before Armfield, J., at Fall Term of Edgecombe Superior Court. There was judgment for the defendant and plaintiff appealed. The facts appear in the opinion of Associate Justice Funches.

<p>This was a motion by the defendant, Mrs. E. A. Ballard, to set aside a judgment against her, heard before Battle, J., at Chambers, by consent, as of April Term, 1894, of FraNK-LiN Superior Court. The motion was refused and the defendant appealed. Tbe facts appear in the opinion of Chief Justice Fatroloth.</p>

This was an action for the recovery of the possession of land, tried before Bynum, J., and a jury, at the April Term, 1894, of Pitt. Superior Court. It was admitted that the title to the land in controversy was in one David Averett, who was long since dead.

This was a. Civil aotioN, tried before Bynum, It was in evidence at the trial in the Superior Court that one Joseph Fleming made a general assignment on the 28th day of October, 1892, to Lunsford Fleming, the plaintiff in this action, and that he is suing as such trustee. Among the property so assigned was the entire interest of the assignor in the crops of 1892, grown on his lands, no matter whether grown by himself or by his tenants, and also all accounts due said assignor.

This was a civil actioN, to try title to land, tried before Bynum, J. (who, by consent of parties, found the following facts, a jury trial being waived), at March Term, 1894, of Pitt Superior Court: (It is admitted that title was out of the State and in William Whitehead at the date of the respective sales hereinafter set out.) “ 1.

Civil ACTION, heard before Mebane, J., at Fall Term, 1894, of Nash Superior Court, on a case agreed as follows : “ 1. That on January 1st, 1880, the defendant William S. Battle executed his note under seal to the testator of the plaintiff, with James S. Battle and Kemp P. Battle as sureties, whereby be promised to pay one day after date the sum of fifty thousand dollars, and delivered said note to the said testator, S. E. Westray. “ 2.

<p>Married Woman — Deed of Settlement — Trust—Power of Disposal, by Gestui Que Trust, of Land.</p> <p>1. The power of a married woman to dispose of land, held by her under a deed of settlement, is not absolute but limited to the mode and manner pointed out in the instrument.</p> <p>2. Where land was conveyed to a trustee for the sole and separate use of a married woman, to be free from any debts of her husband, a mortgage executed by her and her husband, without the joinder of the trustee, is void and the fact that the trustee becomes the owner of the note secured by the mortgage and seeks to foreclose the latter gives it no validity.</p> <p>8. The power conferred upon married women by Art. X, Sec. 6, to dispose of her property is subject to such limitations as her grantor or devisor may prescribe in a deed or will.</p>

<p>Civil action, heard at May Term, 1893, of Yance Superior Court, before Shuford, J. The action was by Pattie D. B. Arrington and husband against J. P. Arrington, executor, and others, as the devisees of A. H. Arrington, and the administrator and heirs of T. J. A. Cooper, to secure the payment of a judgment. In response to an order of court directing him to report the entire amount of the outstanding liabilities of the estates of A. H. Arrington and Cooper, the referee reported the proportion of the judgment due by the Cooper estate to plaintiffs as the only liability against the Cooper estate, and the proportion of plaintiffs judgment due by the Arrington estate to plaintiffs, and the amount of a judgment in favor of Mrs. Nancy Bunn, as the only liabilities against that estate. By subsequent orders and judgments of court in the action, the claims, as reported, were recognized, and finally judgment was rendered ordering the payment of plaintiffs’ and Nancy Bunn’s judgment by defendants. Defendants S. L. and J. C. Arrington thereupon made a motion to have the judg-meats rendered in tire action, so far as they recognized the Nancy Bunn judgment, set aside, and from a judgment denying that motion those defendants appealed. Erom a judgment setting aside a judgment in reference to the judgment of Nancy Bunn, she and others appealed.</p> <p>The other facts fully appear in the opinion of Associate Justice Montgomery.</p>

<p>PROCEEDINGS, under section 1756 of The Code, commenced before the Clerk of the Superior Court of Pitt County, to settle a controversy between a landlord and a tenant, and heard on appeal before Bynum, J., and a jury, at March Term, 1894, of Pitt Superior Court. The defendant appealed.</p>

Civil aotioN, heard before Shuford, J., at April Term, 1893, of FRANicliN Superior Court. There was judgment for the plaintiff and defendants appealed. The facts appear in the opinion of Associate Justice Furohes.

This was an ex parte petition for the sale of land, heard before the Clerk of the Superior Court of WayNE County. It appeared that Lilly W. Freeman, being the owner of a lot in Goldsboro, executed a mortgage with her husband to recover a note for $1,000 for money borrowed to improve the lot which, upon her' death, descended to her only child, the infant petitioner.

Civil action, tried at October Term, 1894, of WayNE Superior Court, before Bynum, J., and a jury. The action was brought to recover installments of rent reserved on a lease of certain warehouse property in Goldsboro by the plaintiff to the defendant, B. L. Dulce, which became due December 1st, 1893, and January 20, 1894.

This was an action or proceeding instituted before the Clerk of tlie Superior Court of Wayne County by the plaintiffs, to set aside the decree in a special proceeding-under which lands of the feme plaintiff’s ancestor had been sold, and heard at January Term, 1895, of Wayne Superior Court, before Winston, J. The complaint was as follows: The plaintiff, Elizabeth Langston, upon information and belief, alleges: 1.

This was an appeal from a Justice’s judgment, tried before Bynum, J.*and a jury, at the November Term, 1894, of the Superior Court of HakNett County. Long, a witness for the plaintiff, testified that he was a Justice of the Peace during the year 1887.

This was a COMPLAINT, heard before the Railroad Commission, injRaleigh, on the 13th November, 1894. The complaint was filed August 21,1894, alleging a violation of the tariff rate prescribed by the Commission for the transmission of telegraphic messages.

{Avery and Clark, J. J., dissent, corguendo.) ActioN by Elias Carr against Octavius Coke, Secretary of State, for a mandamus, &c., heard before Starbuok, J., at April Term, 1895, of Waxe Superior Court. Complaint was as follows : “The plaintiff, in behalf of himself and all other citizens of the State of Nort*h Carolina, complaining, alleges : “1.

<p>¡Statutes — Enactment—Ratification—Signatures of Presiding Officers Fraudulently Procured or Affixed Toy Mistake.</p> <p>(For Syllabus see Carr v. Coke, ante.)</p>

In a controversy in Wake Superior Court, at its October Term, 1891, concerning the probate of the last will and testament of Mary A. Smith, sometimes called Mary Ann Morehead, between the propounders and the caveators, by agreement between all parties interested, a trial by jury was waived., and tlie court found that a certain paper-writing of date August 10th, 1863, produced for probate as the last will and testament of Mary A. Smith, was her last will and testament: and in…

Civil aotioN, or proceeding under 1292 of The Code, heard before Bynum, J., at October Term, 1894, of Wake Superior Court.

Civil actioN, tried before Bynum, J~., and a jury, at October Term, 1894, of 'Wake Superior Court. The action was brought by Alice L. Love, through her next friend and father, E. H: Love, to recover damages for an injury inflicted upon her through the alleged negligence of the defendant’s agents, who conducted a fire-works display during the celebration of the centennial anniversary of the city of Ealeigli, in October, 1892.

<p>Action to Recover Land — Service of Process — Irregular Judgment in Sale for Partition — Collateral Attach— Ratification by Minors.</p> <p>1. Where, in a proceeding to sell land, an order of sale has been made and property sold and the sale confirmed, the judgment is final and can only be set aside in a direct proceeding' for that purpose.</p> <p>2. Where infant defendants are served with a summons in proceedings for the partition of land and a guardian act litem is appointed, a judgment affirming the sale cannot be set aside in a collateral proceeding for alleged fraud or irregularity.</p> <p>8. Where infants, after reaching their majority, with knowledge of the facts rendering the sale of their land voidable for irregularity, receive the residue of the purchase price, they ratify the sale.</p> <p>4. Section 887 of The Code cures irregularities in a partition sale of land of minors.</p>

ControveRst, submitted without action, heard before Green, J., at March Term, 1895, of Durham Superior Court, and from the judgment rendered therein the plaintiff appealed. T|ie appeal was docketed in this Court on the-day of-, 1895, after the cases from the 5th District had been disposed of, and by consent was heard on the --- day of April, 1895. The submission to the Court below was as follows: Gf.

PetitioN for Mandamus, beard before Hohe, J., and a jury, at November Term, 1894, of Granville Superior Court. Tbe Court at tlie close of evidence and after argument, having intimated an opinion that on the evidence, if believed, plaintiff could not recover, and that he would charge the jury, if they believed the evidence, they should answer second issue “No.” That the bonds were issued without authority and plaintiff was affected with notice.

Civil action, tried before Green, J., and a jury, at Janu-uary Term, 1895, of Dubham Superior Court. The action was brought by the plaintiff to recover money paid or “loaned” to thb defendants. The defendants pleaded a counter claim and from a judgment in favor of the defendants for $330 on their counter claim, the plaintiff appealed.

ActioN for absolute divorce, tried before Winston, J., and a jury, at June Term, 1894, of Dueham Superior Court. The jury found for their verdict that the plaintiff and defendant were never married, and the other issues were not responded to.

Civil aotioN, tried before Bhuforcl, J., and a jury, at January Term, 1891, of Dukiiam Superior Court. There was a verdict for the defendant, and from the judgment thereon plaintiff appealed. The facts appear in the opinion of Associate Justice MontgoMery :

Civil aotioN, to recover damages sustained by plaintiff, while incarcerated in tlie guard-house of the Town of Durham, tried before PoJce, I., and a jury, at August Term, 1894, of Due ham Superior Court, having been removed to that Court, on a motion for a change of venue, from Orange County where is was begun.

<p>Note of Executor to Pay Debts of Testator — Personal Liability of Executor — Knowledge of Creditor.</p> <p>-1. Where an executor executes a note in his representative capacity for money borrowed and used for the purpose of paying debts of the testator, the estate is not liable, but the executor is personally liable therefor, and this is so notwithstanding the fact that the lender knows for what purpose the money was borrowed and how it was used. .</p> <p>2. In such case, the executor takes the risk of being reimbursed the amount of the note out of the assets of the estate on the final accounting.</p>

<p>Contract — Action on Note — Note of Executor Given for Benefit of Decedent's Estate — Limitation of IncLi/oi&wal Liability.</p> <p>1. Contracting parties are not prohibited from inserting in a written agreement a provision that an implication, which the law would otherwise raise, shall not arise ; therefore,</p> <p>2. While an executrix who gives a note in her representative capacity for money borrowed to pay debts of the estate is personally liable, nothing else appearing, yet when it is so signed, hut in the body of the note are inserted the words “L. L. M., Executrix, etc., hut not personally,” she is not personally liable.</p>

Civil aotioN, beard before Green, J., at January Term, 1895, of G-ranville Superior Court, on defendant’s appeal from a judgment of a Justice of the Peace.

<p>Will, Construction of — Legacy—Charge on Land — Statute of Limitations.</p> <p>1. Where a testator devised land to a grandson who was directed to pay to testator’s daughter one-half of its value out of the rents or from any other source except by sale of the land, the daughter’s share is a charge upon the land.</p> <p>2. An action by an administrator to recover his intestate’s share of an estate, is governed by Section 158 of The Code, which provides that actions not otherwise provided for shall be brought within ten years.</p> <p>8. Where a devisee of land which was charged with the payment of half its value to a daughter of the testator agreed, by way of compromise, to pay within a certain time a less amount, and upon such payment he was to be released from all liability on account of the said charge upon the land, and he failed to pay the compromise sum within the time specified ; Held, that the debt did not become merely a personal one and the charge upon the land was not released by such agreement; and further, that the devisee cannot take any benefit from such agreement since he has failed to comply with its terms.</p> <p>4. In such case, judgment will be given for one-half the value of the land, with interest from the date at which it was payable, and a Receiver will be appointed to collect and apply the rents of the land to the payment of such judgment.</p>

Civil aotiost, beard on demurrer to the complaint before Hoke, J., at Fall Term, 1894, of OraNGE Superior Court. From a judgment overruling the demurrer the defendant appealed. The facts appear in the opinion of Furohes, J.

AotioN to recover a penalty of one hundred dollars alleged to be due by reason of the failure of defendant Sheriff to execute process in a criminal action — assigning four separate and distinct forfeitures by and because of said alleged failure (Code, See. 1112),heard before HoTte, Judge, upon demurrer to complaint, at October Term, 1894, of OeaNGB Superior Court.

<p>Civil action", heard before Hoke-, J., at Fall Term, 1894, of OraNGE Superior Court-</p> <p>It is an action for tlie recovery of damages against tbe defendant on account of bis alleged negligent and wilful failure to collect as receiver, appointed in supplementary proceedings commenced by G-. W. Swepson and others against tbe plaintiff, a certain judgment which came into his hands as such receiver in favor of the plaintiff and agahist W. ~W. Holden. The plaintiff alleges in his complaint that the defendant could have made money on the judgment if he had used due diligence in the matter, and that the defendent combined and conspired with Swepson and Holden to prevent him from recovering any thing on the judgment. The defendant in his answer admits the receivership and denies all the other allegations of the complaint. At a later term of the court, the defendant by leave filed an amendment to his former answer, a part of which is as follows :</p> <p>“1. That there has been pending and was tried and finally determined at February Term, 1894, of the Superior Court of Wake County in said State, a civil action wherein Josiah Turner was plaintiff and Mrs. L. V. Holden, and C. A. Sherwood, administrator of W. W. Holden, were defendants, in which said action all the matters of fact, and issues as well of law as of fact, involved in this present action, were heard and determined, ■ and more especially was it determined “that there was a gift and transfer of $5,000 of United States bonds from W. W. Holden to L. Y. Holden on October 27, 1869, and of $25,000 of United States bonds on November 6, 1869, and that at the time of such transfer W. ~VV. Holden did retain property fully sufficient and available to satisfy his then existing creditors, and that there are no claims which were then outstanding which are now valid and existent debts against said estate, and that the gift and transfer of said bonds was not made with the actual intent to hinder, delay and defraud the then creditors of W. W. Holden, and. that tbe gift and transfer of such bonds was not made with design and intent to delay, hinder and defraud the plaintiff and any subsequent creditors of said W. W. Holden; and it was adjudged that the plaintiff take nothing by his action, and that the defendants go without day.</p> <p>“2. That in said action the plaintiff relied upon the allegation that there had been a fraudulent gift and transfer of the United States bonds in 1869, and that the same were still liable to satisfy his judgment for $8,000 obtained against W. W. Holden in Chatham County and renewed in Wake County, and which he insists upon in this action and seeks to hold the defendant Rosenthal, as receiver, responsible, because he did not collect the said judgment of $8,000 out of the proceeds of the United States bonds to the amount of $30,000 alleged to have been fradulently transferred in 1869 by W. W. Holden to L. Y. Holden, the same being in fact the very matter he relies upon to support his present action, and all these matters in relation to the gift and transfer of said bonds were passed upon and determined.”</p> <p>The defendant also set up a duly certified copy of the record of the case tried in Wake County, in his amended answer, and submitted “that the present plaintiff ought not to be admitted or received to urge his present action against the defendant, for the reason hereinbefore set forth, and the defendant verifies this his amended answer, and prays judgment whether the plaintiff ought to be admitted or denied, against the said record now plead in this action by leave of the Court, to urge his said action against the defendant, and more especially that the defendant as receiver ought to have collected the $8,000 out of the United States bonds, or their proceeds found by the jury to have been lawfully transferred in 1869 by W. W. Holden to L. Y. Holden, which is the negligence complained of; and this defendant demands judgment that he go without day and recover his costs.”</p> <p>The plaintiff demurred to the defendant’s amended answer upon which the Court rendered the following judgment : “ Upon consideration it is adjudged that the demurrer be sustained in so far as to decide that the matter set up in the amended answer does not constitute an estop-pel or bar upon the plaintiff to further prosecute this action, but that the amended answer shall constitute and be considered a part of the pleadings in the cause. Defendant takes an appeal from the judgment sustaining the demurrer. Plaintiff then moved 'for judgment by default of inquiry on the pleadings, which was denied and plaintiff excepted.</p>

<p>CONTROVERSY, without action, beard before Hohe, J., at October Term, 1894, of Durham- Superior Court. The case agreed was as follows :</p> <p>“Blackwell’s Durham Tobacco Company” is a corporation, created, organized and existing under and by virtue of the laws of the State of North Carolina, having its location and principal place of business in the county of Durham, in the State of North Carolina. It has listed for taxation in said county of Durham for the year 1894 real and personal property belonging to the Company of the aggregate assessment valuation of ($509,334.00) Eive Hundred and Nine Thousand, Three Hundred and Thirty-Eour Dollars.</p> <p>It lias a branch office and place of business in the city of Philadelphia, in the State of Pennsylvania, and it lists for taxation in the city of Philadelphia, in the State of Pennsylvania, personal property belonging to the Company there and which is used in its business in said city of Philadelphia, of the aggregate assessed valuation of ($300,000.00) Three Hundred Thousand Hollars.</p> <p>The aggregate capital stock of this Company is ($4,000,-000.00) Four Million Hollars, divided into (160,000) One Hundred and Sixty Thousand Shares of the par value of ($25.00) Twenty-Five Hollars each.</p> <p>The stock of this Company has no market value and its actual value is equal to the value of its aggrégate real and personal property.</p> <p>This Company claims that its capital stock of ($4,000, 000) Four Million Hollars, having the actual value of ($809,334.00) Eight Hundred and Nine Thousand Three Hundred and Thirty-Four Hollars and its assessed valuation of its real and personal property in Burham County, North Carolina, and in said city of Philadelphia, in the State of. Pennsylvania, being as aforesaid ($809,334) Eight Hundred and Nine Thousand, Three Hundred and Thirty-Four Hollars, the assessed valuation of all its real and personal property (both in Burham County, N. C., and in Philadelphia, Penn.) should be deducted from the actual value of its aggregate shares of Capital Stock and nothing-ought to be assessed against its Capital Stock for taxation under Sec. 39, Chapter 296, Laws of 1893.. On the contrary it is contended by the Board of County Commissioners of Burham County, N. O., plaintiff, that the defendant is only entitled under Sec. 39, Ch. 296, Laws of 1893, to deduct, from the actual value of its Capital Stock the aforesaid amount of ($509,334.00) Five Hundred and Nine Thousand, Three Hundred and Thirty-Four Hollars, and. the remainder, to-wit, ($300,000) Three Hundred Thousand Dollars, should be listed by the defendant for taxation as Capital Stock under Sec. 39, Chapter 296, Laws of 1893.</p> <p>The following judgment was rendered :</p> <p>“ This cause coming on to be decided on case agreed and the Court being of the opinion. that, under the Bevenue Act, 1893, the Capital Stock of defendant Corporation, was not made or intended to be an item of taxation unless same exceeded in value the corporate property assessed for taxation and on which taxes are paid. It is thereupon considered and adjudged by the Court, that on the facts stated in case agreed, the Defendant Company is not required to list or pay taxes on any amount as Capital stock and that they go without day and plaintiffs and sureties pay the cost to be taxed by the Clerk.”</p>

Civil ACTION, beard before Shuford, J., at January Term,, 1894, of G-raNville Superior Court, on defendant’s appeal from a judgment of a Justice of the Peace which was affirmed and defendant appealed. The facts appear in the opinion of Chief Justice Eatbolotii.

This was a oivil actioN to recover possession of a tract of land, tried before Ilolce, Ji, and a jury, at November Term, 1894, of the Superior Court of PjersoN County. The ordinary issues in ejectment were submitted except damages for use and occupation were not passed upon in the action.

Civil actioN, beard before Holte, J., at November Term, 1894-, of PbksoN Superior Court, on appeal from a judgment of a Justice of the Peace.

AotioN to recover land, heard before Hoke, J., at November Term, 1894, of Person Superior Court, on pleadings and facts admitted, a jury trial being waived. The facts ppear in the judgment of his Honor and in-the opinion of Associate Justice MontgoMery. Upon the facts and pleadings the plaintiff requested his Honor to hold that in the will of Jas.

AotioN for Slander, tried before Hol&e, Jand a jury, at ■July Term, 1894, of Alamance Superior Court. There was verdict for the defendant and plaintiff appealed. The action was brought to recover damages for defamation of character.

This was a civil actioN, tried before Ilis Honor W. A. Sohe, at December Term, 1894, of the Superior Court of Guileoed County, brought by T. E. Balsley, Executor of J. B. Balsley for the purpose of obtaining a construction of the last will and testament of said J. B. Balsley, and for sale of the real estate of said testator, and a distribution of the proceeds thereof and of the personal estate of the testator. A jury trial was waived by consent of-the parties.

<p>Petition of the defendant for a writ of Gertiorari, an appeal having been refused.</p> <p>The plaintiff, a stockholder in defendant company, for himself and all other stockholders, brings this action against the defendant and files affidavit, dated April 13, 1895, as follows:</p> <p>“1. That he has begun a civil action in the Superior Court of Alamance County, in which the pleadings have not yet been filed.</p> <p>“A That Neil Ellington, E. T. Garset and J. W. Lindan are stockholders in defendant company and directors in the same, and that as such are parties to this action, or persons for whose benefit the action is immediately defended.</p> <p>“3. That in order to get facts upon which to base a complaint, it is necessary to examine the parties above named under sections 579, 580, 581, 582, 583, 584, 585 and 586 of The Gode, and that they have information which is necessary and material evidence for the plaintiff.</p> <p>“4. That the object of' the action is to set aside a pretended transfer by defendant to Moses H. Cone of a cause of action arising out of an alleged contract, also of an alleged contract executed September 9, 1892, by the plaintiff with the defendant company, and that the reasons for seeking to set the same aside are that Cone is a stockholder and director in the company and has been since its organization, that he was the promoter of the enterprise, and that any purchase or pretended purchase by him of the said contract from the company is fraudulent and voidable at the option of a complaining stockholder’, and that defendant is now and has been, since its organization, one of the largest stockholders in the company.</p> <p>“o. That the board of directors consists of men largely under the influence of Cone, and one of them is a brother and another a brother-in-law of Cone,, as affiant is informed and 'believes, and that five persons only constitute such board.</p> <p>“6. That the pretended sale aforesaid took place some time in Janu'ary, 1895, at a meeting or an adjourned annual meeting of the director’s; that affiant has made diligent effort to get at tire truth of said alleged sale, and to this end has made inquiry of the directors as to the same, and has also made application to the Secretary and Treasurer of the Company to see the books of the company bearing upon said sale or transfer, but that all his efforts have been in vain.</p> <p>“7. That defendants have said knowledge and that plaintiff is entitled to the same, he being a stockholder in the Company and interested in said contract.</p> <p>“Wherefore, plaintiff prays the Court to appoint some suitable person commissioner to take said examination at such time and place as the Court shall designate, and shall meet the wishes of the parties.”</p> <p>Order of Green, Judge, April' 19 : ' “The Court adjudges that plaintiff is entitled to take -the examinations of the directors in defendant company (named in his affidavit) to be used in preparing the complaint and as evidence in the case at the trial; and appoints T. J. Shaw, Commissioner, as provided in section 580 of The Oode, and designates Saturday, April 27,1895, at Greensboro, N. C., at the law office of Shaw & Scales, as the time and place when and where he will cause, said parties to be and appear by subpoenas and whose evidence he will then and there take as required by law. ( Copies to be served on parties.)</p> <p>(Signed) GeeeN, Judge.”</p> <p>Thereupon, on April 19, the commissioner notified the parties in pursuance of the above order.</p> <p>And the defendant company, on April 20, notified the plaintiff that on the 24th of April, 1895, at Oxford, a motion would be made before Judge Green to set aside the order theretofore made, appointing a commissioner to take examination, &c., upon tbe ground that the same was improvidently granted, and was granted upon insufficient affidavit, and without notice, and for other causes.</p> <p>Affidavit of J. W. Lindan, Secretary & Treasurer and a director in the defendant coinpany, April 23 :</p> <p>That on the 21st of March, 1895, plaintiff began this action and caused summons to be served on defendant company, but which has not been served on defendant Cone; no pleadings have ever been filed; plaintiff upon notice to defendant applied to the Judge for an order requiring defendant to furnish to plaintiff a copy of all boohs, papers and documents in its possession and under its control relating to the controversy between plaintiff and defendant, or for permission to inspe> t and copy the same, alleging that the same contained information necessary to enable him to file his complaint; that in the affidavit filed by plaintiff, it was stated that the purpose of the suit was to set aside an alleged transfer by the company to the co-defendant Cone of an alleged contract which plaintiff is alleged to have made with said Cone for the company, which said contract was set out in the affidavit; that an answer to the affidavit, and numerous affidavits in support of the answer were filed by the company, and after argument the motion of plaintiff was granted by the court and defendant prayed an appeal to the Supreme Court and has perfected the same, and it is now7 pending in said Court; that while the appeal was pending, wherein the right of plaintiff to have the benefit of said books, &c., is denied by defendant, and whereby all proceedings to obtain the relief asked were suspended in th5 lower court the plaintiff procured from the clerk a commission to take the depositions of Ellington and Garset and this affiant before said Commissioner, and caused subpoenas duces tecum to issue for said officers commanding them to appear before the Commissioner and bring said books, &c., and, this, notwithstanding file question of the right of plaintiff to have the boohs, was pending before the Supreme Court; that said commission was issued without notice to defendant while the question was so pending and before any service of summons on the.defendant Cone, and before any pleadings were filed ; and in this state of things the defendant by its counsel appeared before the clerk and moved for reasons set out in its affidavit to revoke said commission, which motion was allowed, and an order made directing the commissioner to proceed no further; that affiant is advised and believes that if it was competent for the .Superior Court to make any«order affecting the right of plaintiff to an inspection and copy of the books, &c., of the company, while the question of such right was pending as aforesaid, the clerk of the court bolow, acting as and for the Judge, bad power to issue and revoke the commission, and the act of the clerk in revoking the same amounted to a judgment that plaintiff was not entitled to the relief sought, and that judgment remaining still in force, not appealed from and unreversed, and being the judgment of a court of competent jurisdiction is conclusive upon the plaintiff and is res judicata as to his rights in the premises; that notwithstanding the right of plaintiff in the premises is questioned in the appeal pending as aforesaid, and notwithstanding the said judgment, which is still in force, the plaintiff applied for and obtained an order adjudging that plaintiff is entitled to take the said examinations, and appointing a commissioner to take the same, and directing him to cause the parties to appear at a certain time and place, and that accordingly the commissioner has issued subpoenas commanding affiant and said parties to bring with them the books, <$íg., of the company, and affiant believes that this is but another attempt of plaintiff to have the Superior Court give him the relief, his right to which being questioned as aforesaid and which has already been denied him by a court of competent jurisdiction as aforesaid ; that the object of plaintiff’s suit as set out in his affidavit is to set aside an alleged transfer of an alleged contract by the company to the defendant Cone, a matter properly provable by the rules of evidence only by the records of said corporation showing its doings in this behalf, and the pretence of plaintiff that he desires to elicit any information as to said transfer resting in the knowledge of any of the parties sought to be. examined, amounts to nothing, as neither of the parties could testify as to the contents of the books, &c., which are the best evidence of the alleged transfer, and any testimony of theirs as to this matter could not be used on the -trial of the action, for the reason that the same would affect the defendant Cone who has not yet been served with process ; affiant is advised and believes that it was incompetent for the court to make said order pending said appeal, and that plaintiff had been denied the rights thereby granted by the clerk of the Superior Court of Alamance County acting as and for the court; and if it was competent at all, ^ffiant is advised and believes that the order should not have been made except upon notice to defendant, that it was made upon insufficient affidavit, and is erroneous in that it appoints a commissioner to take the examination, instead of .ordering the same to be taken before the Judge or court; affiant believes the fact to be, and so charges that the purpose of plaintiff is not bona fide to secure information upon which to file a complaint, but that the purpose to elicit information for use in a case now pending in the Supreme Court of the City of New York,, wherein Moses H. Cone is plaintiff and Lawrence S. Holt is defendant.</p> <p>Facts found by the Court upon the motion of defendant to. set aside the order heretofore made April 19 :</p> <p>1. That the light of plaintiff to an inspection and copy of the books, &c., was pending in the Supreme Court at the time the order was granted.</p> <p>2. That under the order, the commissioner appointed thereby has issued subpoenas duces tecum commanding the presence of the persons named in the order at the place therein named, and that they bring with them the books, &e., of defendant company, and that similar subpoenas were issued under the commission of the clerk of the Superior Court of Alamance County hereinafter referred to.</p> <p>3. That while said appeal was pending in the Supreme Court, the plaintiff applied for and obtained from the clerk of the Superior Court of Alamance County a commission to take the depositions of dhe same persons named in said order, which commission was subsequently revoked by said clerk, who had competent power and authority to issue and revoke the same.</p> <p>4. That defendant Company and’ witnesses, sought to be examined, had no notice of the order made on April 19, as aforesaid.</p> <p>5. That the persons^ sought to be examined are parties to this suit (Signed) GebeN, J.</p> <p>Order made at Chambers in Oxford, on the 24th April, 1895: On consideration of the motion to recall a former order appointing Shaw Commissioner to examine J. W. Lindan, E. T. Garset and Neil Ellingtbn as set out in said order, the Court here now considers and adjudges that said order be affirmed and approved in all things, and that the motion be overruled. In considering the said examination of said parties, no inspection of the books of the Compauy by the plaintiff and no copy of such books by him will be allowed, but in all things said examination will be conducted as like cases are conducted by commissions in taking such examination (Signed) Grebe, J. From this order the defendant prayed an appeal. The appeal was refused by the Court as being premature, and the defendant excepted.</p>

<p>Civil aotioN, heard before Hohe, J., at August Term, 1894, of GuilioRD Superior Court, on demurrer to the complaint. The action was brought against several insurance companies whose policies the plaintiff held, to recover for the damage done to his stock of goods by fire.</p> <p>After alleging the issuance of the policies by the defendant companies and the-fire which occasioned the loss and damage, the complaint further sets out the following :</p> <p>“9. That immediately after the fire plaintiff notified the defendant companies thereof through their agent, R. G. Glenn, and the said Glenn at once notified each defendant, and thereafter, to-wit, on the 11th day of March, just two days after the fire, the defendant companies, each and all of them, bad their adjusters in Greensboro to inspect, examine and adjust the loss to plaintiff.</p> <p>“ 10. That bj the time the said adjusters arrived in Greensboro the plaintiff had collected together the goods that were damaged as aforesaid, and had classified the same, putting boots and shoes in separate places, oil-cloth, carpets and trunks, rugs, valises, gents’ furnishing goods and notions and cloaks also, in separate and distinct parcels for convenient and intelligent examination by the adjusters, whom he was expecting, and on their arrival plaintiff pointed out the said damaged parcels to the adjusters, who inspected the same, giving them every aid in his power to enable them to make a just estimate of his loss; and plaintiff showeth that he and the adjusters were unable to agree upon the damages sustained by the plaintiff, and therefore on the demand of the defendant companies for an arbitration, as provided for in the policies to fix the amouut of the damages to plaintiff, a board of arbitrators was organized, and the arbitrators entered upon the duty of examining and fixing the damages, and after proceeding to some extent with a few of the parcels some disagreement arose between them, and they refused to go on, and broke up without making any award, and could not be got to resume their work, although urged by plaintiff so to do.</p> <p>“ 11. That said miscarriage of the arbitrators having occurred on the 11th of March, and plaintiff being very anxious to have his loss definitely settled, and whilst the damaged goods were classified and in a situation to be intelligently viewed, he proposed to the adjusters to arrange a new board of arbitrators and let the damage be ascertained; but this reasonable request the defendants refused, unless plaintiff would allow them to retain on the new board the men they had chosen and who had acted with and on the disbanded board aforesaid, and plaintiff being unwilling to such an unfair advantage in defendants’ favor,, refused to assent to their terms and insisted on a new board out and out, but defendants declined and broke up and went away on the 12th, claiming an award from the board' already organized without any notice of a purpose ever to return, and stayed away until the 18th of March, 1890, when three adjusters came back and proposed to plaintiff to organize a new board, which plaintiff had urged upon them and they had refused as aforesaid.</p> <p>“12. To this last proposition for a new board coming from defendants a week and more after they had declined the same proposition of the plaintiff, the plaintiff refused to assent for the reason that by the time the adjusters of defendants having gone away and left no notice of a purpose to return, but insisting on an award from the board before that time organized, he had supposed they would never return, and in that state of things he had dried, brushed and sunned the damaged articles and .otherwise worked with them as best he could, and then it was impracticable to-select and get together again the damaged articles which had been intermixed in a large stock of goods throughout the store and classify them again so as to be intelligently inspected and with any prospect of a fair estimate of the damages sustained.</p> <p>“18. Plaintiff, further complaining, showeth that at the time the adjusters were here he had classified and on the counter, shoes and boots, the damages to which was $500 ; cloaks, damaged $500; oil cloth, carpets and trunks, damaged $200 ; rug's and valises damaged $100 ; fans damaged $75, and gents’ furnishing goods and notions $275 ; and to all these the said adjusters had access and knew of the amount of damages claimed on each class and parcel, and they said and knew that they were greatly damaged and they made no question with plaintiff except as to the questions of the damages, wbieli then could hare been and would have been easily admitted if defendants would have assented to the organization of a new board of arbitrators as proposd by plaintiff and urged by him as hereinbefore set forth.</p> <p>“14. That the 'defendant companies stipulated in their said policies that each of them should not be liable for a greater proportion of any loss sustained by the plaintiff than the sum insured in each bears to the whole sum insured on the goods, and under the provision of the policies the plaintiff claims that the amount to be borne by each shall be ascertained and paid by said companies absolutely. Plaintiff, further complaining, showeth that he kept and performed on his part all the conditions, agreements, stipulations and requirements required of him in said several policies in all respects, at all times, and in all things, according to the true intent and meaning thereof, except in the particular that he did not make and send forward proofs of loss, for the reason that defendants, by their adjusters, saw the damaged goods, arranged and classified, aforesaid, with every explanation desired of him, and waived said proofs by the arbitration begun, and by the acts and •conduct of their said adjusters on the occasion of the refusal ■of -the arbitrators to go on and make their award, which acts1 and conduct are hereinbefore set forth.”</p> <p>The defendants demurred to the complaint upon the following grounds:</p> <p>“First. That several causes of action have been improperly united, one being an action against the Merchants Insurance Company, of Newark, for a loss under a policy •of insurance issued to him by that company; another being an action against the North British and Mercantile Insurance Company for a loss under a policy of insurance issued to him by that company, another being an action againt the ’Western Assurance Company, of Toronto, Canada, for a loss under a policy of insurance issued to him by that company; another being an action by the plaintiff against the Virginia Eire and Marine Insurance Company for a loss under a policy of insurance issued to him-by that company; another being an action by the plaintiff against the Eochester German Eire Insurance Company for a loss under a policy of insurance issued to him by that company.</p> <p>“Second. That the complaint does not state facts sufficient to constitute a cause of action, in that while it admits that proof of loss was required by the policy issued by this company to be furnished by the plaintiff to said company, no proof of loss has been so furnished and no sufficient excuse for not furnishing it is given, and the excuse which is alleged in the complaint is insufficient in law.”</p> <p>Another ground of demurer was “ that an award or appraisal, when demanded, is another precedent to an action or recovery by the plaintiff; that such award or appraisal was demanded by the defendants; that appraisers ■were appointed, but failed to make an award; that the plaintiff Pretzfelder refused to enter upon another appraisal or arbitration, unless the defendants would select different appraisers or arbitrators; that afterwards the defendants proposed to enter upon another appraisal or arbitration, selecting different appraisers or arbitrators, which was then refused by the said Pretzfelder; that there has been no award or appraisal before this action was commenced.”</p> <p>The demurrer was overruled and defendants appealed.</p>

<p>Practice — Appeal—Certiorari—Laches.</p> <p>Where an appellant neglected to docket his appeal or apply for a certiorari at tlje next term of this Court after the cause was determined in the court below, the writ will not be granted.</p>

This was a Civil ACTION instituted by the plaintiffs partnership creditors of Powell & Wharton to set aside an assignment for fraud, tried before Hoke, J., and a jury at December Term, 1894, of Guilford Superior court.

Three actions were brought by the plaintiff, James 0. Sutton, against John R. Phillips, the defendant, to recover eighty dollars in each case for two penalties of forty dollars each, given by Sec. 3842 of The Oode\ “for selling and delivering by weights and measures not tried by the Standard, and for selling and delivering by less measures than the Standard” certain meats sold to the plaintiff; tried by a Justice of the Peace.

This was a civil aotioN, tried before-His Honor, Boylrni, J., and a jury, at Fall Term, 1894, of Feuder Superior Court.

Civil ACTION, beard before Brown, J., at Eall Term, 1894, of JoNes Superior Court, on complaint and answer. The action was brought by the plaintiff against the defendants to declare certain deeds made to his children by the defendants a cloud upon plaintiff’s title and to have them cancelled, and himself, the plaintiff, adjudged to be the owner of the lands described in the complaint.

MotioN to set aside a sale and caucel a deed, heard before Holte, J., at Eall Term, 1894, of SaMpson Superior Court. ■ The plaintiffs and the • defendant, D. E. Colwell, agreed upon the following as the facts upon which the motion to set aside the sale mentioned in the notice and the cancellation and setting aside of the deed mentioned in said notice depend: “1.

This was an aotioN to reinstate, an appeal, dismissed on motion of appellee for failure of appellant to print the record. The grounds of the motion appear in the opinion of Associate Justice Clare:.

Aotion for the cancellation of a deed and to recover land, tried before Boykin, J., and a jury, at September Term, 1891, of RUNDER Superior Court.

Supplementary proceedings, heard before Brown, J., at Chambers, on appeal from an order of the Clerk of the Superior Court of Lenoir County, directing the examination of J. L. Hartsfield, assignee of the defendant. The plaintiffs made affidavit before the Clerk as follows, (after setting out the rendition of judgment in issuing and return unsatisfied of execution, &c.): “IV.

<p>Contract — Agreement between Joint Owners of Note — Sur-vivorship? — Gift—Conflicting Findings of Jury — “ living Heir.”</p> <p>1. In a contract between two owners of a note providing that, should either of them die before the other without “a living heir,” the survivor should become sole owner of the note, the words “living heir” should be construed tí) mean “issue.”</p> <p>2. A verbal agreement between two parties owning a note, payable to them jointly, that upon the death of either without issue it shall belong to the survivor is valid.</p> <p>3. The Statute, Sec. 1326 of The Code, abolishing survivorship in .estates held in joint tenancy, does not prohibit contracts making the rights of the parties dependent on survivorship.</p> <p>4. Where in response to one issue a jury found that a contract existed between two sisters, whereby the survivor should have the whole of a certain not.e belonging to them jointly, a finding in response to another issue that one of its parties at a later date made a gift of her share in such note, is not inconsistent with the first finding.</p>

On February 27, 1893, Adrian & Toilers executed their notes to the Bank of New Hanover in the sum of $90,000, payable three years after date, bearing four per cent, interest, payable quarterly; and on the same day executed a mortgage to secure the payment of said sum, which was registered June 19, 1893, the day on which said bank closed its doors and ceased to do business.

<p>Action on Note — Bills and Notes — Commercial Law — Set-Off — Endorsee.</p> <p>1. An endorsee of negotiable paper for value before maturity, without notice of any infirmity, takes it clear of all equities and defences between antecedent parties, excepting, only, (1) when, by statute, the paper is void in whole or in part from its inception; and (2) when the original consideration of the paxser is illegal or fraudulent.</p> <p>2. One who purchases for value before maturity and without notice of any set-offs, several notes, paying one-half of their aggregate face value and giving credit to the endorser for the other half, holds all the notes free from any right of set-off in favor of the maker as to any remaining unpaid.</p> <p>3. In such case, the fact that the purchaser of the notes may have sued and recovered on part of them, does not deprvie him of the character of a purchaser for value so as to let in the right of set-off as to the others.</p> <p>4. If a note is not void, illegal or fraudulent, ■ the endorsee who takes it before maturity, for value and without notice, gets the title free from all equities, regardless of how much or little he may have paid for it.</p>

This is a civil ACTION for alleged injury to the plaintiff, sustained through the negligence of defendant, heard before Doyhin, J., at September Term, 1894, of New HaNovee Superior Court. Summons issued on the 1st day of March, 1894, returnable to April Term, 1894, of New Hanover Superior Court.

Civil aotioN, commenced by plaintiff on the 7th March, 1893, in the County of ONSLOW, and removed therefrom on notice of the plaintiff to the County of Lenoir for trial, and tried before Boyhin, J., and a jury, at November Term, 1894, of LeNOir Superior Court. The object of the action and the contentions of the parties are set out in the opinion of Associate Justice Eurohes.

ActioN,, in the nature of a quo warranto, heard upon a a case agreed, before Graham, J., at March Term, 1895, of BunooMbe Superior Court. There was judgment for the defendant and plaintiff appealed. The facts appear in the opinion of Faiboloth, C. J.

<p>Quo Warranto — .Election to Office — Office Created after Election of Officer.</p> <p>1. A person cannot be elected to an office that does not exist at the time of the election ; therefore,</p> <p>2. Where an office was created by an act of the General Assembly passed on the 8th day of March but not ratified until the 12th day of March, an election on the 9th day of March to fill such office was void.</p>

Pboobbdiñgs supplemental to execution, heard, on appeal from the Cleric of the Superior Court, before JBryan, J.y who affirmed the ruling of the Cleric and defendant appealed.

<p>Application by Pearce Bros. & Co., Robeson & Co., and others against J. W. Elwell and others for the appointment of a-Receiver, heard before Bryan, J., at May Term, 1894, of RobesoN Superior Court. His Honor granted the application as to Elwell but refused it as to the other defendants, and plaintiffs appealed.</p> <p>The facts appear in the opinion of Associate Justice Purgues.</p>

Civil action, tried before Brown, «/., at November Term, 1894 (a jury trial being waived). The complaint was as follows: The plaintiffs, complaining, say : “1. That Chas. A. Webb and Oscar E. Webb, above named plaintiffs, at the times hereinafter named, were partners doing business at Baltimore, Maryland, as A. L. Webb & Son. “2. That the plaintiff, M. McD.

<p>Ambiguous Contract — Ellipsis— Construction.</p> <p>While courts may decide between one of two possible constructions of ambiguous terms and may sometimes resort to pertinent extrinsic evidence to arrive at a proper interpretation, they cannot, nevertheless, supply a supposed ellipsis in order to give legal effect to language which, without addition or alteration, would be meaningless.</p>

Action to recover land, commenced by summons issued on 1st April, 1892, and tried before Bryan, J., and a jury, at Marcli Term, 1894, of Moohe Superior Court. There was judgment on a verdict for defendant, and plaintiff appealed.

Civil aotiof, commenced by summons issued October 7th, 1871, and tried before Bryén, J., and a jury, at February Term, 1894, of ANSON Superior Court. There was a verdict and judgment thereon for the plaintiff, and defendants appealed. The facts appear in the opinion of Associate Justice Furohes.

AotioN for the recovery of' land, commenced July 28th, 1890, and tried before Winston, I., and a jury, at August Term, 1892, of Moore Superior Court. There was a verdict for the plaintiff, and. from the judgment therein defendant appealed. The facts are stated in the opinion of Associate Justice Furohes.

<p>DEFENDANT’S APPEAL.</p> <p>Civil aotioN, in the nature of a creditor’s bill, tried at December Term, 1894, of Moore Superior Court, before Armfield, Judge. On the 26tb of November, 1890, the defendant, L. T. Brown, a merchant residing in Moore County, executed a paper writing purporting to be an assignment of his goods, wares, credits, etc., to the defendant S. D. Jones, to secure the payment of a sum of $5,500 to the said S. D. Jones, and then all outstanding claims against the assignor, naming some of them. The debtor reserved to himself $500, as his personal property exemption, and provided for the expenses of executing the trust before any of the debts should be paid.</p> <p>This action is instituted by the unpreferred creditors for the recovery of judgments against the defendant Brown for their debts against them, and also to have the deed declared fraudulent and void. It is charged that the assignment was executed in pursuance of a conspiracy between the assignor and the assignee to hinder, delay and'defraud the plaintiffs, and that such was the intent of the assignor and that the assignee knew of it and participated in it at the time of its execution. The defendant Brown died after the action commenced and his administrator, J. E. Oaviness, has been made a party defendant. The answer denies the material allegations of the complaint, except his indebtedness to the plaintiffs. The following are the issues submitted to the j ury, and their responses thereto :</p> <p>1. Was the deed of assignment from Brown to Jones, assignee, executed with intent to hinder, defeat, delay or defraud the creditors of L. T. Brown? Ans. “Yes.”</p> <p>2. Is the defendant J. E. Caviness, administrator of L. T. Brown,indebted to the plaintiffs, if so, in what amount? Answer. “Yes, as alleged in the admissions filed.”</p> <p>The Court thereupon rendered judgment “Declaring the deed of assignment executed by L. T. Brown to S. D. Jones fraudulent and void as to the plaintiff creditors of L. T. Brown, and that said deed be set aside as to plaintiffs, and further adjudged that the plaintiffs recover of J. E. Oaviness, administrater of L. T. Brown, the several amounts alleged in the complaint as due to the creditors therein named, aggregating the sum of $5,331.49 and interest; and further adjudged that the plaintiffs recover of the defendants the costs of the action, to be taxed by the Clerk of the Court. His Honor further ordered and adjudged that upon the admissions in the pleadings that this cause be referred to Frank McNeill, referee, to ascei’tain and report to the next Term of this Court what property and effects of L. T. Brown, deceased, and the value thereof, came or should have come into the hands of S. D. Jones, trustee, by virtue of the said fraudulent-deed of assignment, and said referee was further directed to report any other facts which he might deem essential to a full adjustment of the matters in controversy, and this cause was retained for further orders and directions.</p> <p>The plaintiffs excepted to His Honor’s refusal to render judgment against the said S. D. Jones, trustee, and the sureties on the said undertaking, and for the error alleged the plaintiffs appealed.</p> <p>From the judgment rendered ujjon the verdict against the defendants, both parties appealed to this Court.</p>

<p>Judgment of Justice of the Peace — Collateral Attack for Fraud — Impeachment of Judgment for Fraud in answer to Creditor's Bill — Attorney Representing T)oth Parties.</p> <p>1. Defendant corporation made an assignment for benefit of creditors and plaintiff tbrongb its attorney, who was also trustee under the defendant’s assignment, split up its account against defendant so as to bring it within a Justice’s jurisdiction, and obtained judgments thereon. The defendant made no defence to the actions before the Justice of the Peace because of quieting representations made by the said attorney and trustee. Held, that in its answer to a credit- or’s bill, brought by plaintiff, the defendant had the right, by way of counter claim, to impeach the said judgments for fraud and to demand that they be vacated.</p> <p>2. In such case the defendant need not set out formally the facts relied upon to show its right to equitable relief, if such right can be gathered from the whole answer.</p> <p>3. Where the trustee in a deed of assignment was also acting as attorney for a creditor thereunder, a judgment against the assignor in favor of the creditor, rendered on motion of such attorney, will be declared a fraud in law though there was no fraudulent intent.</p>

<p>Practice — Certiorari—Statement by Trial Judge — Supplying Omission in Testimony.</p> <p>Where the affidavit in an application for a certiorari showed that the word “not” was omitted in an important part of the testimony and was accompanied hy a telegram from the Trial Judge to the same effect and expressing his readiness to supply the omission, the writ will he granted.</p>

Civil ACTION, for damges for the non-delivery of a telegraphic message by a telegraph company, tried before Bryan, J., and a jury, at November Term, 1894, of Iredell Superior Court. From the judgment, on a verdict for defendant, the plaintiff appealed. The facts sufficiently appear in the opinion of Associate Justice Clark.

Civil aotioN, heard before Bynum, J., at May Term, 1894, of IREDELL Superior Court, on exceptions to a report of a referee. The facts and contentions of the parties will be found in the reports of the former appeals contained in 103 N. C., 19, and 114 N. C., 450, and in the opinion of Associate Justice MONTGOMERY. The exceptions to the report were overruled and defendant appealed.

Aotxon by plaintiffs against W. A. Eliason assignee of •L. Pinkus, for an accounting to ascertain tbe amount with which defendant is chargeable as assignee and for his removal and the appointment of a receiver. From a judgment confirming the report of a referee the plaintiffs appealed. The facts necessary to an understanding of the decision appears in the opinion of Chief Justice Eaieolotii.

Civil ACTION, heard before Bryan, J., at January Term, 1895, of RooKINGham Superior Court. 1. In July, 1862, Pleasant W. Moore died intestate in Henry County, Ya., and in October, 1862, Drury Smith was duly qualified as administrator of said Moore in Rock-ingham County, N. C., and filed his bond in the penal sum of §20,000, with H. C. Wooten, James W. Trent and John W. Morris as sureties on said bond, all of said sureties being then and now citizens of Henry County, Ya.

Civil ACTION, tried by BoyMn, Judge, and a jury, at January Term, 1895, of Cabarrus Superior Court. Among other deeds introduced by the defendants for the purpose of showing title in the defendant Coleman, the landlord, to that part of the land of which the defendants were in possession, after plaintiff had established a prima facie case, was one from John Einlc and wife and C. A. Plott to Luther Palmer, dated 20th January, 1881.

<p>PETITION OF DEFENDANTS TO REINSTATE APPEAL.</p>

AotioN tried at Fall Term, 1894, of Davie Superior Court, before Battle, J., upon exceptions filed by plaintiffs to the allotment of homestead and personal property exemptions to defendant. Upon the trial the following issues were tendered by plaintiffs and submitted to the jury : “1. Was the land allotted as a homestead worth more than $1,000 at the time of allotment? ‘Yes.’ “2. If yes, what was the land then worth? Answer, ‘$2,000.’ “3.

<p>Action in Nature of Creditor's Bill — Corporation—Creditors — Stockholders— Unpaid Subscription — Evidence— Judgment Against Corporation.</p> <p>1. In an action by a creditor of an insolvent corporation against a stockholder thereof to recover the amount of his unpaid subscription, a judgment rendered on the report of a referee in an action to set aside an assignment by the corporation, together with the findings of the referee that such stockholder after subscribing for a certain amount of stock and paying in one-half of his subscription, had been allowed to draw out, after the assignment, all he had paid-in, was competent evidence against such stockholder although he was not a party to the action in which such judgment was rendered.</p> <p>3. One who has not objected to the admission in evidence of a referee’s report in a former action to which he was not a party cannot complain on appeal that the admission of such evidence was an error.</p> <p>3. Where, in an action by the creditors of an insolvent corporation against a stockholder thereof to recover the amount of his unpaid subscription, such stockholder admitted that he had subscribed and had not paid his subscription to the capital stock, and introduced no further evidence, it was proper to direct a verdict to be rendered against him.</p>

Civil action, tried before JBattle, J., and a jury, at a Special Term of the Superior Court of Eoesvth county, which began on Monday, the 26th day of November, 1894. ■The plaintiffs, the National Bank of Greensboro, Rowe Wiggins and the Atlantic National Bank of Wilmington, North Carolina, being judgment creditors of the defendant J. E. Gilmer, brought this action for the purpose, as is alleged in their complaint, of setting aside and declaring fraudulent and void certain…

This was a Civil aotioN, tried upon appeal from a Justice of the Peace at Fall Term, 1894, of Ashe Superior Court, before W. B. Allen, Judge presiding, a jury being waived by both parties. Held: and the plaintiff excepted and submitted to judgment of nonsuit, and appealed.

AotioN to recover possession of a lot in tbe town of Marion, beard before Shuford, J., at Spring Term, 1894, of McDowell Superior Court. From a'judgment for tbe plaintiff the defendants appealed. Tbe facts appear in the •opinion of Associate Justice Aveey.

Civil action, by tbe plaintiff, against S. T. Pearson, for damages for wrongfully suing out an injunction, beard before Allen, J., at Fall Term, 1894, of McDowell Superior Court. Tbe defendant in tbis action bad brought an action against tbe plaintiff for damages for wrongfully cutting logs on land alleged to belong to him, tbe plaintiff in said action, and obtained an injunction forbidding tbe defendant in that action (plaintiff in this) for cutting or disposing of tbe logs.

Civil ACTION, for damages, commenced on the 4th of August,. 1893, and tried before Winston, J., and a jury, at August Term, 1894, of UNION Superior Court. The following issues were, by consent of the parties, submitted to the jury, who responded to them as indicated, to-wit: “1. Was plaintiff injured by the negligence of the defendants? Answer,‘Yes.’ “2. If so, 'did the plaintiff, by her own negligence, contribute to her own injury? Answer, ‘Yes.’ “3.

<p>Floatable Streams, What Constitutes — Easement—Riparian Owners.</p> <p>1. Floatable rivers are navigable highways, in which the public has an easement paramount to the rights of riparian owners; and, in order to establish such easement, it is unnecessary to show that the river is susceptible of use continuously during the whole year, but it is sufficient if it appear that business men may calculate that, with tolerable regularity as to seasons, the water will rise and remain at such height as will enable them to make it profitable as a highway for transporting logs to mills or markets lower down. (Affirming Commissioners v. Lumber Company, 115 N. C., 590.)</p> <p>2. Between a point on the river where defendant’s mill was located and the place where logs were cut for transportation thereto were shoals where the water was not deep enough to permit the passage of logs, but 8 or 10 times a year, at irregular intervals, the river rose several feet, remaining at such height from 24 to 48 hours, during which time logs were carried over the shoals without artificial assistance. Held, that the river was a floatable stream, in which the public had an easement, the reasonable use of which was paramount to the rights of the riparian owners. (Overruling Commissioners v. Limber Company, 115 N. C., 590.) Furches, J., dissents, arguendo.</p>

This was a speoial pboceeding for the partition of land, brought originally before the Clerk of the Superior Court of Union County and transferred to Term for trial of the issues of law and fact raised by the pleadings and heard before Winston, J., and a jury, at August Term, 1894, of UNION Superior Court. The facts appear in the opinion of Chief Justice Fairoloth.

Civil action, for trespass, commenced in the Superior Court of McDowell County on the 8th day'of January, “1892, and removed on motion of plaintiff, to McDowell Superior Court, at January Special Term, 1894-, of which it was tried before Armfield, J., and a jury. The plaintiff claimed that he was the owner of a tract of land in McDowell County containing 70,400 acres known as the Win. and Robt.

<p>Action for Possession of Personal Property — Competency of Witness — Chattel Mortgage — Mortgagee as Subscribing Witness — Execution by Corporation— Validity of Mortgage.</p> <p>1. Where he is not excluded under the provisions of Sections 590 of The Code, the mortgagee in a chattel mortgage is competent, as a subscribing witness thereto, to prove its execution for admission to probate, inasmuch as Sec. 1351 of The Code removes the disqualification formerly attaching to witnesses having' an interest.</p> <p>2. The common seal of a corporation being affixed to an insfrú- . ment is prima facie evidence that it was affixed by competent authority, and hence it is not incumbent upon one elaiminig personal property under a mortgage by a corporation to show that its execution was duly authorized.</p> <p>3. In the trial of an action for possession of personal property claimed under a chattel mortgage executed by a corporation, it is competent for the adverse party to go behind the seal and show that it was not affixed by the legally exercised authority of the company.</p> <p>4. A chattel mortgage recited that a corporation was indebted to the mortgagee, “for which he holds my note,” and to secure the same “I do” convey to him certain property owned by the corporation, and “if I fail” to pay the debt, the mortgagee may sell, allowing an attorney fee to be charged to “me;” the attestation was “witness my hand and seal.” The mortgage was signed by the “president” of the corporation as “president” with his private seal, and by others “as treasurer” and “stockholder,” and the corporate seal was set opposite to their names. Held, that such mortgage was a conveyance by the president irersonally and not one by the corporation acting' through him.</p> <p>5. Where the property described in a chattel mortgage which purported to be the act of the corporation but was only that of an officer personally, belonged to the corporation and was in the adverse possession of the defendant at the time of the execution of the mortgage, the instrument was properly excluded as evidence in an action for the possession of the property by the mortgagee.</p>

This, was a MOTION to dissolve a temporary restraining order issued in a cause pending in OleveláND .Superior Court and heard before Graham, J., at Chambers, in Charlotte, N. C., on the 8th day of March, 1895. The motion •was allowed and plaintiff appealed. The facts appear in the opinion of Associate Justice Montgomery.

ActioN to recover land, tried before Winston, J., and a jury, at Eall Term, 1894, of Rutherfoéd Superior Court. There was judgment on a verdict for the plaintiff and defendant appealed. The facts are stated in the opinion of Associate Justice FueChes.

Civil ACTION, tried at Spring Term, 1895, of StaNly Superior Court, before bis Honor W. S. OH. Hobinson, Judge. The action is in the nature of a creditor’s bill brought by a large number of creditors to set aside certain deeds executed by the defendant M. Ritchie to his wife and son, tbe other defendants. The debts due the plaintiffs were admitted.

This was a oivil' ACTION, tried before Pobinson, Judge, at Spring Term, 1895, of S.taNLY Superior Court. The action is for $64.58, balance due on a note for $600, secured by mortgage on defendant’s real estate. This note was executed, to plaintiff’s testator, Gr. H. Barnhardt, and was held and sued on by the plaintiff as executor of Barn-hardt.

This was a special PROCEEDING for partition of land, commenced before the Clerk of the Superior Court of Stanly County, and issues of law and fact being raised upon the pleadings, the same, with all the proceedings therein, were transferred by the Clerk to the civil issue docket for trial at a regular Term of the Superior Court of said county. At Spring Term, 1894, of StaNly County Superior Court, said case was tried before Boykin, Judge, and a jury.

This was a CONTROVERSY submitted without action under Section 567 of The Code and tried by His Honor Judge Robinson, at Chambers, in Shelby, April 19th, 1895.

<p>Civil action, brought by plaintiff against the Watertown Steam Engine Company (a foreign corporation) and its agents, Brem & McDowell, for damages arising from its false warranty and deceit in the sale of an engine, the manufacture of the Watertown Steam Engine Company.</p> <p>The following- is a copy of the offer for the sale of the engine which was bought from the defendants by the plaintiff:</p> <p>“Office of Brem & McDowell, Machinery, Mining Supplies and Safes. Agents for Liddell & Co., Manufacturers of ‘Boss’ Cotton Presses, Saw Mills, Shafting, Pulleys, Hangers, &c. Agents for Watertown Engines. Cleveland & Hardwick Engines. The Pratt Improved Cotton Gin. Corn and Flour Mills. Yictor Wagon and Platform .Scales. Emerson, Smith & Co. Planer and Solid Tooth Circular Saws. Marvin’s Eire Proof Safes. Steam and Water Fittings and all sizes of Wrought Iron Pipe and Rubber and Leather Belting, Constantly on Hand.</p> <p>“Charlotte, N. C., April 9th, 1888.</p> <p>“E. K. P. Osborne, Esq., President Alpha Mills — Dear Sir: We will sell to your Mill the following machinery, at prices given :</p> <p>One Watertown automatic cut off engine, 18x28 cylinder</p> <p>150 H. P. nominal, or 155 H. P. cutting off at half stroke 70 lbs steam $1,500 00</p> <p>80 horse still boilers, at $843 each 1,686 00</p> <p>No. 3 pump • 175 00</p> <p>No. 11 heater i 250 00</p> <p>Steam and water connection 100 00</p> <p>Machinist’s time 30 00</p> <p>Freight about . 43 00</p> <p>$4,154 00</p> <p>“ — With pump and heater.</p> <p>Yours respectfully, Bbem & McDowell.</p> <p>“Accepted : E. K. P. Osborne, Pres.”</p> <p>The engine was delivered on December 12, 1888, and was set up on February 5th, 1889, and suit was brought on the 3d January, 1892.</p> <p>There was much evidence offered and many exceptions taken to the admission and exclusion of testimony and to the refusal to give instructions asked for and to the charge as given, all of which is set out in a voluminous record. The material facts and exceptions are sufficiently stated in the opinion of Associate Justice Eurohes.</p> <p>The issues submitted and the responses thereto are as follows:</p> <p>1. Did Brem & McDowell warrant the engine to be a 160 horse-power engine of the manufacture of the Water-town Steam Engine Company ? Answer. Yes.</p> <p>2. At the time of said warranty were Brem & McDowell the agents of the Watertown Steam Engine Company for sale of said engine % Answer. Y es.</p> <p>3. Did the Watertown Steam Engine Company, through Brem & McDowell as its agents, warrant that the engine sold to the plaintiff, The Alpha Mills, was a 150 horsepower engine of the manufacture of said Watertown Steam Engine Company ? Answer. Yes.</p> <p>4. Was the said engine a 150 horse-power engine of the manufacture of said Company ? Answer. No.</p> <p>. 5. Did Brem & McDowell represent to the plaintiff that</p> <p>the engine was a 150 horse-power engine of the manufacture of said Company with the purpose of inducing the plaintiff to buy the engine ? Answer. Yes.</p> <p>6. Was said representation true % Answer. No.</p> <p>7. Did Brem & McDowell know, or have reason to believe, at the time of said representation, that said engine was not a 150 horse-power engine of the make of said Company ? Answer. Yes, but not with fraudulent intent.</p> <p>8. Was plaintiff induced by said representation to buy the engine ? Answer. Yes.</p> <p>9. At the time of said representation were Brem & McDowell the agents of the Watertown Steam Engine Company? Answer. -Yes.</p> <p>10. Is plaintiff’s canse of action barred by the Statute of Limitations as to Brem & McDowell ? Answer. No.</p> <p>11. Is the plaintiff’s cause of action barred by the Statute of Limitations as to Watertown Steam Engine Company ? Answer. No.</p> <p>12. What are the plaintiff’s damages ? Answer. $2,023.74.</p> <p>Judgment was rendered by the court in favor of the plaintiff.,</p>

This was an aotioN to recover the amount expressed in a certain draft as set out in the complaint, tried before Graham, J., and a jury, at March Term, 1895, of Meck-leNburg Superior Court.

Civil actioN, tried before Mclver, J., and a jury, at March Term, 1894, of Buncombe Superior Court. There was judgment for plaintiff and defendants appealed. The facts appear in the opinion of Associate Justice Clabk.

<p>AotioN by Laura E. Jones against the City of Asheville, to recover damages for injury to her property and for a mandamus to compel the City of Asheville to pa]? to her the amount theretofore assessed as the value of her land appropriated by the city. The facts are fully stated in the-opinion of Associate Justice Fleches.</p>

Civil actioN, tried before Mclver, J., and a jury, at March Term, 1895, of Buncombe Superior Court, for the recovery upon a policy of fire insurance issued to Cynthia A. Blackburn, which by the consent of the defendant’s agent, endorsed on the bach, had been assigned to W. A. Blackburn, before the destruction of the property. The defendants after formerly denying portions of the complaint, for a further defence alleged : “ That the defendant is informed and believes that Geo.

Civil ACTION, tried before Armfield, J., and a jury, at August Term, 1893, of Buncombe Superior Court. There was judgment on a verdict for defendant, and plaintiff appealed. The facts appear in the opinion of Associate Justice Montgomery.

This was a motion made by the plaintiff upon notice to the defendant, before his Honor, JE. T. BoyMn, Judge presiding, at tbe December Term, 1894, of the Superior Court of the county of Buncombe, to vacate an order made by Shuford, Judge, at .the August Term, 1894, of the Superior Court of Buncombe County.

This was a petitioN for a certiora/ri to have transcript sent up from the Superior Court of JaoKsoN County, at the Spring Term, 1893, of which the case was tried. The petitioner Coward appealed from the judgment below, but failed to have tbe transcript docketed in this Court at the term next ensuing the term of the Court at which the case was tried. Plaintiff had a transcript of part of the record docketed and appeal dismissed.

This was an action of trespass, tried at Fall Term, 1894, of MaooN Superior Court, before Shuford, J. Tbe pleadings were in tbe usual form and tbe amended complaint charges tbe defendant with trespass, and the amended answer charges tbe plaintiff with trespass. Tbe usual issues were framed and submitted to tbe jury.

Civil ACTION, tried before Molver, J., and a jury, at Spring Term, 1894, of Buncombe Superior Court. There was a verdict for the plaintiff and from the judgment thereon defendant appealed. On the 13th of January, 1890, C. W. Garrett & Co., and Paul Garrett, the defendant, entered into a contract by which the defendant was to sell for C. W. Garrett & Co., for a commission, their wines and brandies made at their Medoc Yineyards in Halifax County.

Action to recover land, tried before Armfield, J., and a jury, at August Term, 1893, of MadisoN Superior Court. There was judgment for defendants and plaintiff appealed. The material facts, upon which the decision turns, appear in the opinion of Associate Justice Eukohes.

<p>Costs — Surety on Prosecution Bond — Agreement of Parties as to Costs Not Binding on Surety — Appeal—Practice.</p> <p>1. A surety on plaintiff’s prosecution bond is liable only for “such costs as defendant shall recover of” the plaintiff in the action and is not liable for any part of the plaintiff’s costs.</p> <p>2. Where the plaintiff in an action obtained judgment against the defendant for a certain amount and costs but execution was stayed and the action retained until a counter claim raised • by the defendant could be disposed of, and a .compromise of such counter claim was agreed upon between the parties whereby plaintiff’s judgment was reduced and he consented to pay costs; Held, that such agreement was not binding on the surety on the prosecution bond and he is not liable for any of the costs of the action.</p> <p>3. Though a surety on a prosecution bond is not a party to the action yet, when he is made a party to a proceeding to tax the costs in a case, he may appeal from the order allowing the motion to retax.</p>

„ Civil ActioN, tried before Shuford, J., and a jury, at Eall Term, 1894, of Clay Superior Couri^. From a judgment, on a verdict for defendant, plaintiff appealed. Tbe facts appear in tbe opinion of Associate Justice Furohes.

<p>Building and Loan Association — OonPract— Usury — Foreclosure of Mortgage— Uniform Laws.</p> <p>1. A contract, by which the stock, taken out by a borrower and assigned to the association, when the mortgage is executed, is forfeited to the association on default, without allowance of credit on the mortgage for the payments made on the stock, is unconscionable, and, though upheld by the’laws of the association’s own state, will not be enforced in North Carolina.</p> <p>2. When the foreclosure has realized enough to pay the sum borrowed, with interest at the rate stipulated on the face of the mortgage, and expenses, and the association has allowed nothing for payments made by the borrower on his stock, which he assigned to the association when he made the mortgage, such assignment is to be treated as merely a pledge of additional security for the loan and the borrower is entitled to a return of the stock.</p> <p>3. Laws must be consistent with each other and uniform in their bearing upon all the people of the State, and inasmuch as the general law fixes the rate of interest at six per cent, per annum, no law of the General Assembly can be allowed to alter or change the general law in this respect. Hence, Chap. 444, Acts of 1895, amendatory of Ch. 7, Yol. 2, of The Code, has not the effect of allowing a charge by B. & L. Associations of a * greater rate than six per cent, per annum on ioans.</p>

AotioN to enjoin the foreclosure of a mortgage and for an accounting, heard before Armfield, J., at Fall Term, 1893, of Cherokee Superior Court. There was judgment for the plaintiff and defendant appealed. The facts appear in the opinion written by Mr. Justice Burwell before the expiration of his Term of office, and adopted in full by the Court.

<p>Par dice on Appeal — Settlement of O ase — Death of Judge.</p> <p>Where, on appeal, the ease and counter-ease were filed in time, but the trial Judge died before settling the case, the appellant, instead of a new trial being granted, may withdraw his ease and have the appeal tried on the counter-ease.</p>

Where a railroad company, seeking to condemn land for its right of way, has given ample bond to cover any damages resulting from its wrongful entry upon the land, an injunction will not issue to restrain such company from entering upon the land before the appraisal of damages and the payment thereof into Court. RetitioN to rehear the case reported in 114 N. C., 690.

Action for damages, tried before Brown, J.at Fall Term, 1894, of Graven Superior Court. The complaint alleged that in October, 1890, the plaintiff executed a deed to the defendant for a right of way across certain lands in Craven County, the deed stating as the consideration one dollar and the benefit to accrue to plaintiffs from the building of the road across their land.

This is an actioN which was commenced before a Justice of the Peace, in which the plaintiff claimed damages for the destruction of certain goods and merchandise which were burned in the defendant’s warehouse, at Dunn, North Carolina. The justice rendered judgment in favor of the plaintiff from which the defendant appealed to the Superior Court. The case came on for trial at November Term, 1894, of Har-nett Superior Court, before Bynum, Judge, and a jury.

<p>PetitioN to rehear the same case, reported in 115 N. C., 662.</p>

ACTION for damages against the North Carolina Railroad, as lessor of the Richmond & Danville Railroad, beard on complaint and demurer before Oreen, J., at February Term, 1895, of Guilford Superior Court. The complaint was as follows : “1.

Civil aotioN by L. Y. Grady against the Richmond & Danville Railroad Company, heard before Hoke, J., at Spring Term, 1895, of DupliN Superior Court.

AotioN for damages caused by the alleged negligence of the defendant in allowing fire to escape from its engine and destroying the plaintiff’s property, tried before Brown, I, and a jury, at August Term, 1894, of Moore Superior Court. The issues submitted to the jury and the responses were as follows: “1. Did defendant by reason of his negligence cause the property of plaintiff to be burned as alleged? ‘No.’ “2.

This was a civil actioN for damages caused by the alleged negligence of the defendant, tried before His Honor Brown, The following issues were submitted to the jury: “1. Was the plaintiff injured by negligence of the defendant’s agent? “2. Did the plaintiff by his own negligence contribute to the inj ury ? “3.

<p>Action for-Damages — Master and Servant — Vice-Principal — Negligence.</p> <p>1. A conductor is, in his relation to those subject to his orders on the train in his charge, a vice-principal acting for the com-' pany.</p> <p>2. Where a servant’s movements are directed by a vice-principal of a corporation and the former believes that discharge from employment will follow his disobedience of orders, his acts under such circumstances will not render him culpable or guilty of contributory negligence, but will be imputed to the company whose officer coerced him to act without regard to his own wishes or judgment.</p> <p>3. Where plaintiff, an inexperienced brakeman, was ordered by the conductor of a railroad company, to make a coupling which an experienced brakeman had volunteered to make, and as plaintiff went between the ears, in obedience to the command and while he was arranging a displaced link, the conductor, who could see plaintiff’s danger, signaled to the engineer to back the train and at the same time shouted to the plaintiff not to miss the coupling. Held, that it was error to charge that plaintiff could not recover for injuries received in so attempting to obey orders and make the coupling.</p>

The defendant was convicted upon the trial of an indictment for injuring stock running at large, at Fall Term, 1894, of Beaufort Superior Court, before Mclver, “ The Court charged the jury before dinner, and they immediately returned to the jury room, which was on the lower floor of the court house, where they remained until supper time. At supper time the Court instructed the sheriff to give the jury supper.

INDICTMENT for burning a barn, tried before Brown, J., and a jury, at Eall Term, 1894, of Oka ven Superior Court. The defendant was convicted and appealed. Such facts as are necessary to an understanding of the opinion are stated in the opinion of Associate Justice Fubches.

INDICTMENT for obtaining money under false pretences, tried before Ooble, J., and a jury, at February Term, 1895, of Yance Superior Court. There was a verdict of guilty and the defendant moved in arrest of judgment on the ground that no criminal offence was charged in the bill of indictment, and appealed from the refusal of the motion.

<p>INDICTMENT for bastardy, tried at January Term, 1895, of FkaNkliN Superior Court, before Colle, Judge. Tbe indictment is in substance as follows : “ The jurors, &c., present that Walter Wynne, on the 4th of October, 1893, in and upon the body of one Mary Neal did wilfully and unlawfully beget a bastard child, she the said Mary Neal being then and there an unmarried woman, and the said bastard child, as begotten by said Walter Wynne, having been born alive on the fourth day of July, 1894, still lives and is likely to become a county charge, and he the said Walter Wynne then and there refused to provide for the maintenance of said child, against the form of the statute, &c.” The defendant’s counsel contended that the court did not have jurisdiction of the offence, as will more fully appear from the opinion of the Court. Upon the trial the defendant was convicted and appealed from the judgment pronounced.</p>

INDICTMENT for perjury, tried at January Term, 1895, of FeanKlin Superior Court. There was a motion to quash the bill of indictment, in that it charged the offence in the alternative, i. e., that the defendant made the statement, knowing it to be false, or being ignorant whether or not said statement was true.

<p>INDICTMENT for larceny, tried before Mebane, I., and a jury, at Pali Term, 1894, of Nash Superior Court. The defendant was convicted and appealed, assigning as error the admission of evidence duly excepted to on the trial and which is set out in the opinion of Associate Justice Fueches.</p>

INDICTMENT for murder, tried before Bynum, J., and a jury, at September Term, 1894, of Waice Superior Court. The defendant was indicted for the murder of lana Wim-berly and pleaded not guilty. On the trial the defendant introduced no evidence and asked in writing that the following instructions be given. 1.

The defendant was indicted and tried at September Term, 1894, of ¥axe Superior Court, before Bynum, J. There were two bills of indictment found at September Term, 1894, to-wit: I. The jurors of the State, upon their oaths, present: That John Mangum, late of the county of Wake, wickedly devising and intending to cheat and defraud, on the 1st day of Febrary, A. D. 1894, with force and arms at and in the county aforesaid, unlawfully, knowingly, designedly and feloniously did…

<p>Indictment of Public Officer — Public Officers — Neglect of Duty — Evidence.</p> <p>1. Public officers are responsible to the people for acts of omission as well as commission.</p> <p>2. Section 1090 of The Code creates two distinct offences — one, the wilful omission, neglect or refusal to discharge the duties of an office, which is punishable by fine and imprisonment; the other, the wilful and corrupt action of an officer, by omission or commission, contrary to his oath of office, which is punishable by removal from office and by fine and imprisonment.</p> <p>3. To convict an officer of wilful omission, neglect, or refusal to discharge his duty, a corrupt intent need not be shown.</p> <p>4. The sale by County Commissioners of County property, at a grossly inadequate price and for less than could have been obtained by reasonable effort, and without opportunity for competition, is evidence of omission of duty under Sec. 1090 of The Code.</p> <p>5. Honesty and good intent are not a full defense against an indictment for neglect of duty, if there is evidence of wilful carelessness in the discharge of official duty, resulting in injury to the public.</p>

Defendant was charged with violation of city ordinance of Wilmington and appealed from the ruling of the Mayor to the Criminal Court of New HaNOver, at the January, 1895, Term of which he was tried before Meares, I., and a jury. The city tax laid against defendant as- an ice dealer is under the following : “ For the storage, manufacture or sale of ice at wholesale, with privilege of retailing, $66 per annum,” which he insists is illegal.

Indictment for unlawfully selling spirituous liquors to to one Archie Mathis, on Sunday, without prescription, etc., tried before His Honor Judge Ilohe, and a jury, at February Term, 1895, of DupliN Superior Court. .

Indictment against B. L. Page et ad for assault and battery, tried before Whitaher, F, at Spring Term, 1894, of RobesoN Superior Court. The defendants were convicted and appealed.

<p>Indictment for Larceny — Larceny—Felonious Lntent— Failure to Return Property Found.</p> <p>1. To constitute larceny, there must he an original felonious intent, general or special, in the mind of the accused, at the time of the taking or finding lost property, otherwise it is a trespass only and not a felony.</p> <p>2. The omission to use the ordinary means of discov ering the owner of property lost and found raises a presumption of fraudulent intention against the finder, which it is necessary for him to explain and obviate and this is done by showing that he endeavored to find the owner or that he openly made known the finding so as to make himself responsible to the owner for the value when he should appear.</p> <p>S. In a trial for larceny it appeared that defendant while away from home, received the property consisting of a pocket-hook containing money, bank certificates, and a cheek payable to the prosecuting witness, from his wife, who .found it, defendant not having been present when it was found. The day after he returned home, defendant wrote to the bank which issued the certificate for the name of the owner. There was some delay in returning the property, caused by a feeling engendered by correspondence with the owner, to whom defendant explained the whole matter, and by defendant’s demand for a reward. Held, error to submit the ease to the jury.</p>

Indictment for murder, tried before Brown, J,, and a jury, at October Term, 1894, of EobesoN Superior Court. The defendant was charged with the murder of Thomas Smith on the 3d July,-1894, was convicted and appealed. The facts sufficiently appear in the opinion of Associate Justice Avery.

<p>Indictment for Murder — Threats—Subsequent Reconciliation — Sudden Provocation — Manslaughter.</p> <p>1. While threats made in a thoughtless and bragging manner should not receive too much consideration from a jury, yet they are competent and proper evidence, and what weight they should have with a jury is a question for them under proper instructions from the Court and a consideration of all the circumstances under which they were made.</p> <p>2. Where, in the trial of a prisoner charged with murder committed in 1883 (before the passage of the Act of 1898) the evidence showed that defendant had made threats against the life of the deceased but that thereafter, on the day of the killing, their relations were friendly and that the immediate provocation to the homicide was the shooting of defendant’s brother by the deceased; Held, that the jury should have been instructed that, if they found these facts, defendant could be convicted of manslaughter only, inasmuch as, after the reconciliation, the law would presume the crime to be due to the new and sudden provocation and not to previous malice.</p>

This was an INDICTMENT for carrying a concealed weapon, to-wit, a pistol, tried before Norwood, J., and a jury, at April Term, 1895, of BeuNSwioK Superior Court.

This was an indictment for carrying a pistol concealed about the person of the defendant, tried at Spring Term, 189.5, of StaNly Superior Court, before His Honor, W. S. O'JB. Poiinson, Podge, and a jury. Tine Christian, a witness for the State, testified that she saw the defendant oif his own premises with a pistol in a belt around his body; that the defendant had on his overcoat, but that the pistol could be seen, either when the defendant was sitting down or standing up.

Indictment for slandering an innocent woman, tried before Robinson, J., at Spring Term, 1895, of ÜNiON Superior Court. The defendant was convicted and appealed. Tbe facts and ground of appeal are set out in the opinion of’Chief -Justice Faiboloth.

INDICTMENT for seduction of an innocent and virtuous woman, under promise of marriage, found at Spring Term, 1895, of Catawba Superior Court, before Timberlake, J., and a jury. Miss Etta Propst, the prosecutrix testified : “I am twenty-two years old; have lived always in Catawba County. First met defendant when I was about twelve years old. He was living in Lincoln County, about one and a half miles from where I lived.

The defendant was convicted of gambling in violation of a city ordinance and appealed to the Criminal Court of BuNCOMbe in which, at the January Term, 1895, he was tried and convicted before Jones, J., and a jury, and appealed.

Indictment for a violation of a town ordinance, tried on appeal from tlie Mayor’s court of Asheville, at January Term, 1895, of the Criminal Court of BuNOOmbe County, before Jones, Judge, and a jury. The defendant was convicted and appealed. The facts appear in the opinion of Associate Justice Montgomery.

INDICTMENT for the unlawful sale of spirituous liquors within two miles of Bethel Methodist Church in Macon County, tried before 8huforcl, J., and a jury, at Ball Term, 1894, of Maoon Superior Court. The defendants were iound guilty — under a special verdict — and appealed from the judgment thereon.

This was an indictment against the defendant, Jasper Gunter, for a secret assault on his brother, J. 0. Gunter, tried before Shuford, Judge, and a jury, at the Fall Term, 1894, of the Superior Court of Graham County.