Volume 117 — North Carolina Reports

Notion, for mandamus, tried before BoyT&in, L, and a jury, at Spring Term, 1895, of Chowan Superior Court. Upon an intimation by bis Honor during the trial that the action could not be maintained, the plaintiff submitted to a non-suit and appealed. The facts are fully stated in the opinion of Associate Justice MontgoMery.

PROCEEDING for partition of land, brought by the plaintiff before tlie Clerk of the Superior Court of Hare, and heard on demurrer ore tenus, and, on motion to dismiss for want of jurisdiction, before Mclver, J., at Fall Term, 189é, of said conrt. The facts are stated in the opinion of Associate Justice Furghes.

Aotiox of claim and, delivery, tried before- Boykin, J., and a jury, at February Term, 1895, of Beaufort Superior Court.

Civil aotioN, to recover land, tried before Boykin, J., and a jury, at February Term, 1895, of Beaufort Superior court, on the usual issues. There were various exceptions to the admission and rejection of evidence. The jury rendered a verdict that the plaintiffs were owners of the land excepting twenty-nine acres.

AotioN of trespass guare clausum fregit, commenced in March, 1886, and tried before JBoyhin, J., at February Term, 1895, of Beaufort Superior Court. The plaintiff alleged possession in himself of the lands described in the complaint and deduced title from John C. Blake, Trustee, to whom one S. C. Carrow had executed a deed in trust with power of sale.

Civil aotioN for recovery on a promissory note alleged to bave been executed by W. H. Simmons, tbe intestate of defendant, tried before Boykin, J., and a jury, at June Term 1895, of WASHINGTON Superior Court. Tbe only issue submitted was “Did W. H. Simmons execute tbe note sued ob.” There was verdict for the plaintiff and defendant appealed from a judgment thereon. The facts sufficiently'appear in the opinion of Associate Justice MONTGOMERY.

Spboial PROCEEDING, begun before the Clerk of the Superior Court of Carteret county, for the sale for partition of a boat, described in the petition. One issue, as to title, was raised, and being transferred to Term for trial, was heard before Boyhin, J., and a jury, at Fall Term, 1894, of Carteret Superior Court. These facts sufficiently appear in the decision of Chief Justice Faircloth. From a judgment for the plaintiff, defendant appealed.

Civil aotioN for malicious prosecution, tried before Brown, J., and a jury, at Spring Term, 1895, of Tyreell Superior Court. The plaintiff was arrested in a criminal proceeding at the instance of the defendant, and was charged with embezzling' goods to the amount of $80, belonging to the defendant.

ActioN by B. Y. .McCless et al against J. C. Meekins, Sr., Treasurer of Tyrrell county, and others, for a writ of mandamus to compel the defendant, J. C. Meekins, Sr., as Treasurer of Tyrrell county, and others, to apply a special tax fund to payment of bonds held by plaintiff and for an injunction to restrain the defendant, Meekins, Treasurer, from turning the fund into the general fund of the county pending the action, heard before Brown, <71, who continued the injunction…

<p>Sale' of Contingent Interests — Chattel Mortgage, Yalidity of — Mortgage on Prospective Products — Registration— lien.</p> <p>1. Contingent rights are, as a rule, assignable in equity anda deed conveying- the same, if executed fairly and for a sufficient consideration, will, upon the happening of the contingency and the vesting of the interest, be enforced in equity as a contract to convey.</p> <p>2. A contract creating alien upon the stock and prospective products of a business to secure capital for the operation of the business, is a valid chattel mortgage.</p> <p>3. The fact that a lien is created on the entire stock and prospective products of a business in order to secure advancements for its conduct, does not raise a presumption of fraud either upon the ground that it is manifestly for the ease and comfort of the one conducting the business or that the terms of the contract are such as to call for explanation and throw upon one claiming under it the burden of rebutting the presumption that it is fraudulent.</p> <p>4. Where parties engaged in saw-milling business executed » chattel mortgage upon all their stock on hand and upon their prospective stock and products in order to secure advance ments for carrying on the business and the mortgage was duly recorded, logs sold to and coming in-o possession of the mortgagors became subject to the lien of the mortgagee, as against the vendor, immediately upon delivery.</p>

AotioN of claim and delivery heard, on a case agreed, before Molver, J., at May Term, 1895, of Craven Superior Court. The action was brought by plaintiffs at Eall Term, 1891, of Craven County Superior Court, to recover one upright Sterling piano, one Bay State organ, sixteen school desks, all being described in a chattel mortgage from said W. R. Skinner to one W. A. Saddler, dated July 7, 1891, which mortgage was duly recorded in Book 29, Records of Craven County.

This action was begun December, 1892. At May Term, 1894, of CbayeN Superior Court, it came oil for trial, upon complaint and answer as filed, before J. F. Graves, Judge, and a jury. The following issues were tendered by plaintiffs, declined by the defendants, and overruled, by the Judge: “1. What was the value of the goods set apart to E. Cohen as his personal property exemption ? “2.

Civil aotiok, tried before Armfield, J., and a jury, at Fall Term, 1894, of Edghecombio Superior Court. There was judgment for the defendants and the plaintiff appealed. The facts are sufficiently stated in the opinion of Associate Justice Eurohes.

Civil aotioN, commenced by W. E. Grubbs against Charles Stephenson, before a Justice of the Peace, under the Landlord and Tenant Act, to get possession of crops alleged to have been raised on land rented by said Stephenson from J. W. Jordan and W. F. Grubbs. Judgment was rendered against Grubbs, who appealed to the Superior Court and gave the undertaking reqiiired by law to enable him to reclaim possession of the property, with one Rogers as surety.

Civil aotioN, against the defendant, former clerk of the Superior Court of Edgeoombe County, for damages resulting from his failure to properly index a judgment, tried before Mclver, J., at April Term, 1895, of Edgecombe Superior Court. His Honor being of opinion that, upon the facts as alleged in complaint, the action was barred by the statute of limitation, gave judgment accordingly and plaintiff appealed.

AotioN of claim and delivery, tried before Mclver, J., and a jury, at June Term, 1895, of EdgecoMbe Superior Court. There was a verdict for the plaintiffs and the defendants appealed from the judgment thereon. The facts 'appear in the opinion of Chief Justice Eaieoloth.

<p>Civil aotiok heard, on a case agreed, before Molver, J., at June Term, 1895, of Edgeoombe Superior Court. The facts appearing from the case agreed were as follows :</p> <p>“1. That on the 22d day of May, 1894, the defendants, then residing in the city of Martinsville, Virginia, and doing business under the firm name of I. Heiner & Son, in the town of Rocky Mount, N. C., made and executed in the said City of Martinsville, what purported to be a general deed of assignment for the benefit of their creditors, and therein attempted to convey all of their property of every kind and description in the town of Rocky Mount, to L. E. Tillery as their trustee, for the purpose of carrying out fully the purposes and intents of said alleged deed of assignment, said property consisting solely of personal property.</p> <p>“2. That Simon Heiner, accompanied by his attorney, resident in the State of Virginia, came to Rocky Mount, and then to Tarboro, when said alleged deed of assignment was duly proven and recorded on the 23d day of May, 1894-, in the proper office in said county.</p> <p>“3. That when said Simon Heiner arrived in Rocky Mount, as aforesaid, he, with his counsel, called on Tillery, the aforesaid assignee, and informed him of his selection as assignee, and desired to know if he would accept and perform the duties thereof. Tillery replied that he would like to do so, but could not answer until lie saw Thomas H. Battle, Esq., (in whose employ he was). Thereupon the said Heiner took the said deed and had same registered; and that after said deed had been registered, the said Til-lery was again called upon to take the place of assignee as named in said deed and perform the duties thereof; this he positively declined to do, and refused to accept the same.</p> <p>“4z. That immediately after the refusal of said Tillery to accept the place of assignee, the defendants at once executed another deed of assignment, naming as assignee some other person than said Tillery; and thereupon, to-wit, on the _day of..., and after the registration of said alleged deed of assignment to the said Tillery, and before the second deed of assignment was offered for registration, the plaintiffs above-named levied their several writs of attachment upon all of the said property described and conveyed in said alleged deed of assignment, and under and by virtue of said writs of attachment, the-property therein described was sold by the Sheriff of Edgecombe county, and the proceeds of sale are now held by him to abide the determination of tbis action. The second deed of assignment was never registered.”</p> <p>On the “case agreed” the plaintiffs insisted that the deed of trust or assignment executed by I. Heiner&Son was of no effect, by reason of its non-delivery and nonacceptance by the trustee named therein, and that they, by reason of their attachment, acquired the first lien on the property in question. The plaintiffs further contended that the deed was void also for failure of the assignor to comply with the act of 1893. On the other hand, the defendants, the assignors and creditors preferred in said deed of trust, insisted that equity would not allow the deed of trust to fail for want of a trustee ; that, if the legal title to the property remained in the assignors, such title and property was impressed with an equity in favor of the creditors whose debts were secured in said deed, and that the Court should so hold and appoint a trustee to execute said trusts. His Honor sustained the contentions of the plaintiff and rendered judgment in their favor and defendants appealed.</p>

Civil aotiok on contract begun in a Justice’s Court and tried on appeal therefrom before Mcloer, L., and a jury, at June Term, 1895, of EdgeooMbe Superior Court. There was a verdict for the plaintiff and defendant appealed from the judgment thereon. The facts appear in the opinion of Chief Justice Eaikclotii.

This was a special proceeding brought by the plaintiffs against the defendants for the sale of certain lands for partition. The plaintiffs, J. W. Moore and others, and the defendants, W. B. Jordan and others, were heirs-at-law of Samuel E. Westray, who died domiciled in the county of Nash, on the 15th day of February, 1894. He was at the time of his death seized and possessed of lairds lying in Edgecombe and Nash counties.

Civil ACTION, begun in March, 1894, in the Superior Court of CraveN County, by the plaintiff against the defendants to recover the sum of $1,052.60, and to have the judgment declared a charge upon the separate estate of the feme defendant, and heard on demurrer before Bryan,«/., at May-special term, 1895, of said court. His Honor sustained the demurrer and plaintiff appealed. The facts and the grounds of demurrer appear in the opinion of Associate Justice Montgomery.

This was an action brought by plaintiff to recover a saw mill in possession of the defendant. At May Term, 1895, of Halifax Superior Court, W. P. White moved to be made a party defendant in order to set up a cause of action against the Lane Manufacturing Company as fully set out in his affidavit. His Honor being of the opinion that White was a necessary party allowed the motion and plaintiff appealed. The affidavit was in substance, as follows: “1.

Civil action brought by the State on the relation of W. E. Daniel, Trustee, and others, against J. M. Grizzard, former Register of Deeds of Halifax, and the sureties on his official bond, and tried on a case agreed before Melver, J., at June Term, 1895, of Halifax Superior Court. His Honor held that the action was barred by the statute of limitations and the plaintiff appealed. The facts are fully stated in the opinion of Associate Justice Eurohes.

Civil actioN, heard on award of arbitrator and exceptions thereto before Hoke, J., at December Term, 1893, of Pitt Superior Court. The facts appear in the opinion of Associate Justiee MontgoMery. The plaintiff appealed.

<p>Appeal — Costs—Practice—Amendment—Jurisdiction —Appeal from Cleric.</p> <p>1. An appeal does not lie from an adjudication which relates only to the disposition of costs, except (1) as to the liability of a prosecutor for the costs in a criminal action; (2) where the very question at issue is the liability to a particular item of costs, and (3) where the court in which the action was begun did pot have jurisdiction.</p> <p>2. Where the effect of an order allowing an amendment of a complaint in a particular in which it was ambiguous, was to show but not confer jurisdiction, such order is not reviewable on appeal.</p> <p>3. Although an action be wrongly begun before the clerk of the Superior Court, yet, if it gets into the Superior Court at Term, by appeal or otherwise, the latter has jurisdiction of the whole cause, and can make amendment of process to give effectual jurisdiction.</p>

Civil ACTION brought in the name of the State on the relation of W. H. Harrington, and tried before Coble, J., and a jury, at March Term, 1895, of Pitt Superior Court. The relator offered testimony to prove that W. IT.

Civil. actioN, heard on ease agreed before Molver, J., at Fall Term, 1895, of Pitt Superior Court. The plaintiff had contracted to sell certain lands to the defendant who declined to accept the deed upon the ground that plaintiff could not convey a fee simple title.

Civil action for the construction of a will, heard before Coble, J., at May Term, 1895, of Yance Superior Court. Penninah McDowell left a will, in which was the following clause: “That, as my estate is given and devised to my beloved sister Mary L ITowell only during her natural life, I give and devise it at her death as follows ; that is to say : To the heirs of my sister Elizabeth 0.

This was an action of claim and delivery, commenced on September lltli, 1894, by the plaintiff against the defendant, McBryde, to recover possession of a certain crop, raised by McBryde on the lands of the defendant, Pope, and theretofore sold by McBryde to plaintiff.

Special proceediNg by the administrator of ~W. EL Bled-soe to sell land for assets for payment of debts, beard before StarbucJc, L, at Chambers, on appeal from the judgment of the Superior Court Clerk of Wake County. The decree of the clerk was affirmed and defendants appealed. The facts appear in the opinion of Associate Justice MoNt-gomery.

MotioN heard, on appeal from the judgment of the Clerk of the Superior Court of Wake county, before Oóble, J., at August Term, 1895, of said Court. A paper-writing purporting to be the last will and testament of Frank Palmer, deceased, was propounded for probate in open court, and was admitted to probate in common form on the 29th day of May, 1895, by E. A. Johnson, the executor therein named.

CONTROVERSY submitted without action, in Wake Superior Court, and heard at Chambers, April 11, 1895, before Starbuck, J., who gave judgment for the plaintiff, and defendants apjiealed. The facts appear in the opinion of Associate Justice Furohbs.

Civil ACTION for damages for the breach .of contract tried before Btarbuch, J., and a jury, at April Term, 1895, of W aictc Superior Court. There was judgment for the defendants and the plaintiff appealed. The facts appear in the opinion of Chief Justice Eaibcloth.

<p>Civil aotioN for the recovery of land, tried before Star-buph, </., and a jury, at April Term, 1895, of Waice Superior Court. There was a verdict for plaintiff and from the judgment thereon the defendant appealed. The facts sufficiently appear in the opinion of Associate Justice FuROHes.</p>

PetitioN for mandamus, heard before Oóble, J., at September Term, 1895, of Wake Superior Court, upon a ease agreed as follows, covering the above entitled action and that of T. R. Purnell v. W. H. Worth, Treasurer, at this Term, post. “The General Assembly of North Carolina at the Session of 1895, passed the following concurrent resolution which is printed on pages 502 and 503 Public Laws of North Carolina, Session 1895, to-wit: “A Resolution in Eavor of Mrs. Patty D. B.…

PetitioN for mandamus, beard before Goldie, J., at September Term, 1895, of Waicb Superior Court, on a case agreed, which is fully set forth in the report of the ease of Bank v. Worth, ante. From the refusal of his Honor to grant the writ the plaintiff appealed.

ActioN in the nature of a quo warranto, brought by the State, upon the relation of the plaintiff against J. C. Ellington, to recover possession of the office of State Librarian, heard before 8'tarbuoh, J., at April Term, 1895, of Wake Superior Court. There was judgment for the defendant and plaintiff appealed. The facts are stated in the opinion of Associate Justice Fueches.

Civil aotioh to determine the rights of the parties to the “Kelly Fund” and library in the possession of the defendant, heard before Starbucjc, J., at April Term, 1895, of Vaice Superior Court. Both parties appealed from the judgment which, together with the pertinent facts, is set out in the opinion of Associate Justice MONTGOMERY.

Civil aotioN, heard before Oreene, J., at March Term, 1895, of Durhah Superior Court, on exceptions to report of a referee. The facts sufficiently appear in the opinion of Associate Justice Montgomery. Erom a judgment for the plaintiff defendants appealed.

Civil aotion by W. E. Patton, as surviving partner and Receiver of the firm of W. F. Patton, Sons & Go., of Dan-ville, Ya., against the defendant on a note endorsed by Mm for the accommodation of C. IT. Conrad a deceased partner of said firm, tried before Greene, J., at March Term, 1895, of Durham SuperiorCourt, a jury trial being waived.

Civil action, heard at March Term, 1895, of Durham Superior Court,-before Greene, J., and a jury. From a judgment for the plaintiff the defendant appealed. The facts are sufficiently stated in the opinion of Associate Justice Fujrohes.

<p>Action for Damages — Blasting Roch — Warning to Passers By — Negligence.</p> <p>When a servant, in blasting- roek failed to cover the blast or take other usual precautions to restrict within safe limits the flight of the blasted rocks, and gave no notice sufficient in time for a person walking on a road near by to retreat from danger, it was negligence in such servant and he and his employer are responsible in damages for injury to such person.</p>

Civil aotioN, heard before Starbuck, J., and a jury, at Spring Term, 1895, of Chatham Superior Court, on a motion to assess damages resulting to tbe defendant from the issuing of a restraining order. The plaintiff resisted the motion upon the ground stated in the opinion of Associate Justice Montgomery. The motion was granted and the damages were assessed by the jury. Erom the judgment thereon plaintiff appealed.

<p>Civil aotioN, heard on exceptions to a referee’s report before BoyTcin, J., at July Special Term, 1895, of GuilKobd Superior Court. His Honor sustained tbe exception and plaintiff, E. L. Emery, appealed. Tbe facts appear in tbe opinion of Associate Justice Montgomery.</p>

This was an application to continue a restraining order until the hearing, heard before Greene, J., at Chambers, at Durham, on April 2, 1895. The plaintiff invoked the equitable aid of the courts to enjoin the defendants trustees and B. L. Duke from selling'the land conveyed by a mortgage from T. B. Keogh and wife to B. L. Duke. The application was heard on the complaint used as an affidavit and various supporting affidavits.

<p>CONTROVERSY submitted, without action . under Sec. 567 of The Code, heard before Starbueh, J., at Pali Term, 1895, of Durham Superior Court. From a judgment for plaintiff, the defendant appealed. The facts appear in the opinion of Associate Justice MontgoMery.</p>

This is an action brought by the commissioners of Chatham county against the commissioners appointed under chapter 303, Acts of 1895, to restrain them from proceeding further in their survey, and heard before Greene, “The plaintiffs, complaining, allege: “1.

PROCEEDING for amercement of the sheriff of Pender county, heard before Brown, On the 6th of February, 1893, an execution was issued upon a judgment in favor of W. W. Miller against Greorge Washington, and W. T. Bannerman, surety on his appeal bond, for the sum' of fifty-six dollars and eighteen cents, docketed March 14, 1892, with interest from that date, and the sum of seventy-two dollars and five cents costs.

<p>ActioN for trespass heard before Hoke, J., at Spring Term, 1895, of Jones Superior Court, on an agreed statement of facts, as follows :</p> <p>“1. The locus in quo is that part of the land in Jones county, North Carolina, known as the Starkey McDaniel place or land, which is known as the excess over the homestead of Starkey McDaniel, lying on Antoine branch.</p> <p>“2. The timber was cut and removed by the defendants from the locus in quo.</p> <p>“3. The locus in quo was sold under an execution issued on a judgment against Starkey McDaniel to J. E. Amyett, and conveyed to said Amyett by deed, dated September 6, 1869, by John Pearce, sheriff, before any offer to sell by-Starkey McDaniel to his brothers was made, in compliance with the devise herein mentioned.</p> <p>“4. It was conveyed by J. E. Amyett, the purchaser, under the said execution, and the sheriff’s grantee, to Christopher M. Pollock, by deed, dated March 22nd 1870.</p> <p>“5. C. M. Pollock and wife conveyed in fee to Lewis-M. Pollock, one of the defendants, by deed, dated January 15th, 1876.</p> <p>“6. The said Lewis M. Pollock, defendant, and those under whom he claims, have been in possession of said locus in quo ever since the date of said sheriff’s deed, September 6th, 1869.</p> <p>“7. Both plaintiffs and defendants claim title through and from Starkey McDaniel.</p> <p>“8. Starkey McDaniel derived title under the will of his father, James McDaniel, Sr., as devisee.</p> <p>“9. The said will was probated at June Term, 1854, and recorded in the records of wills, in Jones county, in book B, on page 219.</p> <p>“10. The will was construed by the Supreme Court and decision reported in 5th Jones’ Equity, page, 351, in case of McDaniel v. McDaniel.</p> <p>“11. The construction by the Supreme Court of the devise to Lewis McDaniel, as stated in said 5th Jones’ Equity, page -351, applies to and governs the devise to Starkey McDaniel.</p> <p>“12. Starkey McDaniel moitgaged the land in fee to M. Hahn & Co., March 30, 1878, book 26, page 564.</p> <p>“13. Starkey McDaniel conveyed the land to James McDaniel in fee, by deed November 22, 1879. Book 29, page 448, in compliance with the will of his father.</p> <p>“14. James McDaniel, the above named grantee of Starkey McDaniel, was, at the time of the said conveyance, November 22, 1879, the only surviving brother of Starkey McDaniel, and the last surviving son of the aforesaid devisor, James McDaniel, Sr., excepting the said Starkey.</p> <p>“15. James McDaniel, the son of the said devisor, died sometime after the conveyance to E. B. Page, next mentioned.</p> <p>“16. James McDaniel, the said grantee of -Starker McDaniel, conveyed in fee the land to E. R. Page, by deed dated November 22, 1879. Book 29, page 449.</p> <p>“17. E. R. Page and wife conveyed by mortgage in fee to Sebastian Baugert, December 15, 1882. Book 30, page 449.</p> <p>“18. E. P. McDaniel, as assignee of the mortgage aforesaid, executed by Starkey McDaniel to M. Hahn & Co., registered March 30,’ 1878, brought an action to foreclose the same; and Starkey McDaniel, E. R. Page and S. Baugert, the aforesaid mortgagees, -were made parties defendant at Spring Term, 1882, and judgment was rendered decreeing a sale of the land to satisfy and pay off the said mortgage to M. Hahn & Co., and the said mortgage to S. Baugert, at Pali Term, 1888.</p> <p>“19. The land was sold pursuant to the judgment by the commissioners, M. D. ~W. Stevenson and P. H. Pelle-tier, and conveyed in fee to C. A. Baugert, the plaintiff, herein, and sale confirmed.</p> <p>“ 20. Starkey McDaniel is still living, and has no children.</p> <p>“21. Starkey McDaniel brought an action at Fall Term, 1881, against E. R. Page, Lewis M. Pollock and C. M. Pollock, as defendants, and in his complaint claimed absolute title to the land in fee, and asked that the deed executed by him in favor of James McDaniel, Page’s grant, be set aside for fraud, and that the sale under execution and the conveyance of the land, through the sheriff’s deed to J. E. Amyett and then to C. M. Pollock, as above set forth, be declared a trust for the said Starkey McDaniel, and that he recover the land from the said E. R. Page and Lewis M. Pollock, and be declared entitled thereto in fee.</p> <p>“ In this action judgment was rendered at Fall Term, 1883, as follows :</p> <p>“22. That Lewis M. Pollock, one of the defendants, is the owbui of the tract-of land of which he is alleged in the complaint to be in possession, which is known as the excess after the allotment of the homestead in the Starkey McDaniel land or plantation, and fully described in the deed of C. M. Pollock, and recorded in the book Y, folio 319.</p> <p>“ 23. That E. R. Page is the owner in fee-simple of the tract of which he is alleged to be in possession, known as the homestead of Starkey McDaniel.</p> <p>“ That as to O. M. Pollock, action dismissed.</p> <p>“ 24. The complaint and the answers of E. R. Page and L. M. Pollock are made a part of this statement.</p> <p>“ 25. The tract of land, of which Lewis M. Pollock is adjhidged to be the owner in last named judgment, is the locus in quo.</p> <p>“ If the court should be oí the opinion that Lewis M. Pollock is not entitled to the locus in quo in fee-simple absolute, then judgment shall be rendered in favor of the plaintiff, for the value of the timber cut and removed from said locus in quo, by "Win. B. B. Blades and Lewis M. Pollock, within three years before the commencement of this action.”</p> <p>His Honor adjudged that the defendant, L. M. Pollock, was the owner in fee of the land described in the complaint as the excess of the homestead, and that the defendants go' without day, and recover of plaintiff the costs of this action.</p> <p>Prom this judgment plaintiff appealed.</p> <p>The plaintiff excepted as follows :</p> <p>“1. The plaintiff excepts to the judgment herein, and says : That as Starkey McDaniel, under his father’s will, had the use and enjoyment of the land at his discretion, during his natural life in any event, subject to be determined only by his own volition, then he had the right which he might convey for his life, and if he might dispose of the land for.bis own benefit for bis life, then such interest was subject to execution in favor of creditors, and the purchaser, Pollock, at execution sale, obtained the use and occupation of the land for such life; and Starkey McDaniel’s subsequent conveyance in fee, according to the conditions of the will, would not affect a previous conveyance for life by said Starkey, and if this would not be affected, neither would the interest for life which the plaintiff contends was conveyed by the sheriff’s deed to Amyett and Pollock.</p> <p>“2. The plaintiff says further that Pollock had the right to occupy the lous in quo during the life of Starkey McDaniel, who is still 'living.</p> <p>“Therefore, the plaintiff is not barred by the statute; and under the agreed statement, submitted to Judge Hoke, the plaintiff is entitled to recover for the value of the timber cut from the locus in quo.</p> <p>“3. The plaintiff further says that the title to the locus m quo was not put in issue in the action brought by Starkey McDaniel v. Lewis Pollock aud E. R. Page, between the defendants Page and Pollock, since Page was sued for one part of the land and Pollock for another part, and it was not necessary for Page to either admit or deny the title of Pollock ; and although Baugert, the plaintiff, claims under Page, the judgment in that case is not res adjudicata as to this action, now pending.</p>

PbtitioN to rehear the case between the same parties decided at February Term, 1895, of this Court, and reported in 116 North Carolina Reports, page 502.

Civil actioN, tried at Fall Term, 1894, of Lenoir Superior Court, before Boyhin, J., and a jury. Upon the close of the plaintiff’s testimony, his Honor intimated that the plaintiff could not recover, whereupon he submitted to non-suit and appealed. The facts appear in the opinion of Associate Justice Montgomery.

Civil aotioN, tried before Graham, J., and a jury, at August Term, 1895, of Duplin Superior Court. There was verdict for defendants and from the judgment thereon the plaintiff appealed. The facts sufficiently appear in the opinion of Associate Justice Montgomery.

Motion to reinstate an appeal dismissed for failure to print the record. The appeal was dismissed for failure to print the record and the appellant, upon affidavits, moved to reinstate.

Civil actioN to set aside a deed upon the ground of forgery, tried before Graham, N., and a jury, at August Term, 1895, of DupliN Superior Court. There was a verdict for the plaintiff, and from the judgment thereon defendants appealed. The facts are stated in the opinion of Associate Justice FüRchbs.

Civil aotioN, beard before Brown, J., at May Special Term, of GreeNE Superior Court, on the report of a referee and exceptions of defendants thereto. , The exceptions were overruled and the defendant .appealed. The facts are sufficiently stated in the opinion of-Associate Justice Aveey.

Aotions to recover land and certain crops grown on the land for 1803, begun separately between the parties, and consolidated by order of the Court, before PLohe, Judge, at February Term, 1895, of GkiceNK Superior Court. Defendant demurred oretenus to the complaint to recover crops for 1893, grown on the land in controversy, on the ground that the complaint did not state facts sufficient to constitute a canse of action. Demurrer overruled. Defendant excepted.

Civil aotioN, heard, on exceptions to report of a referee, before Graham, J., at Fall Term, 1895, of GtbeeNe Superior Court. His Honor overruled the exceptions and affirmed the judgment of the referee for the defendant, and plaintiff appealed. The facts appear in the opinion of Ass' ciate Justice Aveky.

Civil aotioN, heard at September Term, 1895, of New Hanover Superior Court, before Oreene, J., on amotion for judgment by default final for want of answer to the first of two causes of action arising on two notes set out in the complaint, an answer having been filed to the second cause of action. The motion was refused and the plaintiff appealed. The facts are sufficiently stated in the opinion of Associate Justice Lurches. '

ActioN for damages for false imprisonment before Hohe, J., at April Term, 1895 of New HaNoveb Superior Court. Issues — Did defendant unlawfully cause the imprisonment of plaintiff as alleged ? Ans. No. 2. What damage is plaintiff entitled to recover? There was evidence by plaintiff tending to show that in .June, 1891, he was arrested for unlawfully bury ng night-soil within the limits of the city of Wilmington and taken before defendant Mayor for trial.

This was an action brought by the plaintiffs to foreclose a mortgage executed by the defendants to the feme plaintiff Sallie Medlin and tried upon certain issues at the April Term, A. D. 1895, of New Hanover Superior Court, before Holce, Judge. The following are the issues : “First. Did the defendant, Mary E. Me Girt, execute the note described in the complaint ? “Second.

<p>Civil action, to recover damages for breach of contract, tiied before Hoke, J., and a jury, at April Term, 1895, of New Hanover Superior Count. The issues submitted were :</p> <p>“(1) Did defendant, on or about June 5, 1894, contract and agree to give plaintiff employment as a band sawyer? Answer: Y es.</p> <p>“(2) Did defendant wrongfully violate such contract, the plaintiff himself' being in no default? Answer: No.</p> <p>“(3) What damage is plaintiff entitled to recover? [No response to this issue.]”</p> <p>Tiie plaintiff testified as follows :</p> <p>C£On May 28, 1894, I was sawyer at the Par melee mills, at Jacksonville, N. C„ at $3 per day, straight time; that is, not to be docked for sickness. On June 1, 1891, I resigned my place, and went to Hickory, N. 0. Was induced to do this by letter from defendant company, offering me employment at $4 per day. This letter was written to me in answer to a telegram which I sent to the defendant, offering my services as a band sawyer. Telegram was as follows: ‘Will take the band for $4 per day.’ The letter, dated May 30, 1894, is as follows : ‘Your message of the 28th received. We would not agree to pay you $4 a day, unless you would guarantee an average of 35 M of I boards per day. We have an A 1 filer. Our mill is run by water power. The mill is speeded up to its full capacity, and, if you are the man your telegram makes out to be, you can earn $4 per day. If the mill will average 30 M per day, we will pay you $3, if 25 M, $2.50. If you wish to come under these conditions, and have had experience in white pine and poplar sawing, all right. We now have over five million feet of logs. If you expect to come, wire answer, as there are a good many applicants for the place. [Signed] Gatawba River Lumber Co., E. R. Whiting, Sec.’ I wired answer that I would be there on the 4th or 5th of June. Went to Hickory, and reached there about 1 p. m. Monday, 5th. Went out to the mill. Didn’t see Whiting. While there I saw there were no logs at the mill. On returning I met Whiting on the road, and he said he would go to the hotel to see me at 9 :30 that night. He did not come. Next day I went to the mill, saw Whiting, and Whiting said : ‘How long do yon want to wait; ten days?’ I said‘No; I didn’t come here to loaf; and he said ‘We haven’t any logs here to-day, and will pay you $1.50 until the logs, come. That is as much as I have paid any other sawyer.’ Ireplied : H came here on the terms of your letter, and those are the terms I will work upon, and no other.’ Whiting replied: ‘Have you had experience in white pine and poplar sawing?’ I said that I had cut some white pine, but not much, but had a great deal of experience in poplar sawing. Whiting then said : ‘I will pay yon $2 per day, which is more than I ever paid any other sawyer.’ 1 then told Whiting that I had left a $3 job in Jacksonville, had been in business for 15.years, was a competent sawyer, and could cut 35 M if the mill could produce that result. I have had large experience in mills, and am capable of telling what a mill can cut, and, on seeing the machinery and mill of the Catawba Lumber Co., I am sure that it could not be made to produce to exceed 30 M feet. It could not be made to cut 35 M per day -with first-class timber. There were no logs there when I arrived. Whiting said they would have plenty of logs within ten days when the river rose, and became in a condition to float them down. I had a contract with the Parmelee-Eccleston Co., at $3 per day, and they promised me that, whenever the band sawyer’s place became vacant, I should have it, at $5 per day. At that time I acted as band sawyer when the band sawyer was sick or absent. That is a very responsible place. • The band sawyer’s position in the Parmelee Co. did become vacant within sixty days after I left. When Whiting proposed to pay me $2 per day if I would stay thereuntil they got logs, I declined to take the place, and I borrowed the money with which to return to Wilmington. I spent in cash, as expenses in going to and from Hickory, $40. Upon my return to Wilmington I immediately spoke to the manager of the Parmelee Company, and sought employmeut, telling them why I left Hickory ; also other companies, but without success ; and, although I have endeavored to get employment since that time, I have not been able to earn more than $35. Have had experience in sawing poplar, and some in sawing white pine. I sawed some white pine at Taylor’s mill, and two or three spars at Northrop’s mill.” Several witnesses were introduced to corroborate the above statements, and to show that the plaintiff’s character was good.</p> <p>There was testimony as to the competency of plaintiff as a sawyer, and as to the custom, among mill men, of paying employees when mills were idle, — that some paid full wages, others half wages.</p> <p>Defendant then introduced Whiting, secretary of defendant company, who testified as follows : “I wrote to Jacksonville, to one Ellis, saying that I wanted a band sawyer. Received telegram from plaintiff, Brown, saying he would accept the positiou at $4. I replied by letter [above set out]. Brown came on the 5th or 6th of June. I saw him, and offered him $1.50 per day until the lumber could get down, which was wbat the old sawyer was paid when the mill was idle, and he said he would stay at $2 per day, and that was satisfactory. I told the superintendent to put him to work at once. We could have started upon logs we had, and run from three to four weeks. This was about 10 o’clock in the morning. Brown returned about 11 o’clock that day, and said he would like to cancel agreement. I asked why. He said he could do better in "Wilmington. 1 then said it would inconvenience us very much, but finally consented that he might return to "Wilmington, and he did go. In a month or two we heard that this suit was started, and wrote to plaintiff, asking him to explain his suit. Ho reply came. A reply came from Mr. Strange, his attorney. When the letters were written between Strange and the company, the company was without a sawyer, and unable to get one, and in a letter to Strange, written in August, I think, we again offered the place to plaintiff. "We never hired by the year; only by the day. Brown was to be paid $4 per day when the logs arrived, if he could turn out 35,000 feet per day. Brown said practically he had no experience in sawing poplar, and never sawed any white pine. The reason we had. no logs when Brown came was that, subsequently to writing Brown, on May 30th, an accident had occurred to 'one of our dams, and we were thereby delayed in floating our logs down. The custom among mill men is for sawyers to get half pay when mill is shut down. The capacity of our mill was reckoned at 40,000 per day,-but prior to that time we had not exceeded 33,000. Our present sawyer turns out 35,000 feet per day.” Defendant supported testimony of Whiting by introducing deposition of Wilson, which is substantially as follows : “I live in Asheville. My occupation is that of saw filer. Have known defendant about 8 years. Knew plaintiff when he came to Hickory. I was residing on premises of defendant company at Hickory in June, 1894, and was saw filer and assistant foreman of defendant company. I saw Brown about that time at Hickory, and he said something about having resigned a job to accept this one, because he could get better pay with defendant. He engaged board with me, and said he understood the mill had logs, but had found it had none, and that he had made arrangements to work at reduced rates until the logs arrived. My recollection is he said he agreed to work at $2 per day until they got logs He boarded with me only one day and night, and said he had made up his mind not to work at that pay, and was going home, and did go away. Under "Whiting’s instructions, I told Brown to begin work, but he refused, and did no work at all. His reason for not working was that lie bad received a letter from Whiting about his having a lot of logs, and that they did not have them, and he was going home, and sue the, company for expenses and salary.”</p> <p>The court charged the jury, among other things, as follows : “That both plaintiff and defendant agree as to substance of contract. Defendant agreed to employ plaintiff at $4 per day as band sawyer, provided plaintiff was able to secure a product from the mill of 35,000 feet of lumber per day, guaranteeing that the mill would produce that result. 1 You will therefore find the first issue, ‘Yes.’ The next issue then is, did defendant violate his contract, plaintiff not being in default? The question is, who broke the contract? If the defendant, you will answer the issue, ‘Yes’; if the plaintiff, you will answer, ‘No.’ Plaintiff says he left because there was no machinery, and the mill was inadequate to produce 35,000 feet per day, and that there were no logs to work upon. Defendant says the machinery and mill were adequate, and plaintiff waived the agreement. If plaintiff was ready and able to perform his contract, and, not having agreed to wait, left because the machinery was not adequate, or because there was no present prospect to obtain the logs, you will answer the issue, ‘Yes.’ If the machinery was adequate, and plaintiff agreed to wait for logs at reduced wages of $2 per day, and voluntarily left, you will answer the second issue, ‘No.’ If both parties agreed to set aside the contract, there was an abandonment by consent, and yon will answer the second issxre, ‘No.’ If you so answer, yon need not respond to the third issue. But, if you answer the second issue ‘Yes,’ the plaintiff is entitled to some damage ; that which was in reasonable contemplation of the parties, as to the matters within their knowledge at the time the contract was made, to wit: the cost of the trip to Hickory and return, and compensation to plaintiff for loss of time, at a fair rate of wages, since the injury occurred up to the time of the trial; but you mus-t not go beyond the time of the trial.” The jury found the issues as above set forth. The plaintiff thereupon made a motion for a new trial, upon the grounds (1) that the verdict was contrary to the weight of evidence; (2) for newly discovered testimony ; (3) for misdirection on the part of the court, in that — “First. The court erred in charging that if plaintiff left because there was no adequate machinery for logs, or that the mill would not produce the number of feet guaranteed, the jury must find the issue, ‘Yes’; and insisted that the court should have charged that, even if the machinery was in proper shape, and that the mill was adequate, and that the logs were present, if defendant refused to pay the contract price of $4 per day, the j ury must find the second issue, ‘Yes.’ Second. The court erred in charging that if plaintiff was ready and able to perform his contract, and left, not having agreed to wait, because the machinery was not adequate, and there was no present prospect of obtaining logs, they must answer the second issue, ‘Yes,; and insisted that the court should not have inserted in the instructions the qualification ‘not having agreed to wait,’ and contended that whether the plaintiff agreed to wait or not had nothing to do with the breach of contract on the part of defendant, and there was, therefore, error in inserting that qualification. Third. The court erred in instructing the jury that if the mill and machinery were adequate, and plaintiff agreed to wait for logs at reduced wages of $2 per day, and voluntarily left, they must find the second issue, ‘No’; and contended that the alleged contract to work for $2 per day was either a new contract, made after the first contract was broken, or that it was a modification of the contract in question ; that if it was a new contract, the old contract was broken, and plaintiff was entitled to damages for the breach, and that whether there was anew contract or not could not effect the old contract, or deprive the plaintiff of damages; that if plaintiff broke the new contract, he was liable to defendant for damages, but this could not deprive him of his remedy for breach of first contract. If, however, it was a modification of the contract in question, then it was without consideration, and void, and being vcid, the parties stood upon the same footing that they did before the modification was made, to wit: a breach of contract on the part of defendant, and plaintiff was entitled to damages. Fourth. That the court ei red in charging the jury that if both parties agreed to set aside the contract, this was an abandonment of it, and they must answer the second issue, ‘No’; and contended that there was no evidence to support the contention that there had been any abandonment of the contract by the plaintiff.” The motion for a new trial was overruled, and the court gave judgment upon the verdict for the defendant, and the plaintiff appealed.</p>

<p>Civil aotiok for malicious abuse of process, in which plaintiff sued for damages, compensatory and punitive, tried before Moke, Jat January Term, 1895, of New HaNOVER Superior Court. The defendant answered, but at the trial demurred ore terms upon the ground that the complaint did not state a cause of action. The demurrer was sustained, and plaintiff appealed.</p>

<p>Building and Loan Association, Insolvency of — Stockholders — Borrowing and Non-Borrowing Members, rights of — Mortgages—Power of Sale — Receivers—Distribution of Fund of Insolvent Building and Loan Associations.</p> <p>1. In case of the insolvency of a Building and Loan Association, every person having stock therein, whether as creditor or debtor, must be considered a corporator, and every member indebted to it must be treated as a debtor.</p> <p>2. In winding up the affairs of a Building and Loan Association every borrowing member indebted to it must be charged with the amount actually received by him, with interest at 6 per cent, from the time the money was received, and must be credited with all amounts paid by him, whether as fines, penalties, interest, or weekly dues ; and every non-borrowing member, must be credited with the sums paid in by him, with interest at 6 per cent, from the dates of such payments.</p> <p>3. The appointment of a receiver for an insolvent Building and Loan Association causes the debts due to'it by borrowing . members immediately to mature, and they can be collected at once — a rule which is applicable only to such associations.</p> <p>4. The power of sale in a mortgage to a corporation cannot be exercised by a receiver of such corporation ; to foreclose the mortgage recourse must be had to an order of the court controlling such receiver.</p> <p>5. The courts will not advise a receiver of an insolvent Building and Loan Association as to the mode of distributing its assets until they are in court.</p>

Motion to set aside the judgment, heard before Norwood,, J., at May Term, 1895, of CumbeblaND Superior Court. The plaintiff sued defendant Pope in a civil action on a money demand to Cumberland Superior Court, November Term, 1891, and. at that term filed his complaint, containing paragraphs I, II, III and IY. Date of Summons 11th July, 1891. The defendant Pope filed his answer'at the same term, controverting the allegations of this complaint, but admitting some indebtedness.

<p>AotioN tried at July Term, 1895, of ColuMbus Superior Court, before Hobinson, Judge.</p> <p>Proceedings to sell land for assets to pay debts of intestate of plaintiff. A jury trial was waived, and, by consent, the Judge found the facts as follows :</p> <p>“That H. C. Rockwell died intestate, in the year 1874, and that J. W. Ellis qualified as administrator on the estate of the said Rockwell, March 4th, 1874. That said Ellis died on the 10th May, 1883, and the plaintiff qualified as administrator de bonis non on the 5th September, 1893. That at Spring Term, 1876, in the Superior Court of Columbus County, the following judgments were rendered and docketed against J. W. Ellis, as the administrator of said H. C. Rockwell, viz.: One in faver of R. G. W. Gressett, for the sum of $500, with interest and cost; one in favor, of Warren Baldwin for $253.88, with interest and cost; one in favor of S. J. Fórmeyduval for $334.79, interest and cost. That on the 31st April, 1878, the said J. W. Ellis, as administrator of Rockwell, filed his petition in the Superior Court of Columbus County, before the Clerk, against Willie Rockwell, Lucy Rockwell, Chester Rockwell and Robert A. Rockwell, and J. C. Powell, general-guardian of said defendants, who were at that time infants, to sell land to create , assets. The defendants, by their guardian, filed an answer admitting the allegations of the petition, and asking that a homestead be assigned to them. The Clerk on the-day off...,-,1878, made an order granting license to sell the lands, after the laying off and assigning homestead and dower to the widow and heirs-at-law. That on the 25th November, 1878, a homestead was laid off in said proceedings, under said order, to the widow and children, the return was filed in the Clerk’s office with the papers in said proceeding. That said original homestead return was registred in office of the Register of Dbeds on the 7th April, 1892, but no note was ever made on the judgment docket of said return in said cause. That on the 6th January, 1879, the said Ellis, administrator, sold the lands of said estate, outside of said homestead, and reported the same, which was duly confirmed by the Clerk and approved by the Judge of the District.</p> <p>“The widow, and the heirs-at-law, of said H. C. Rockwell, continued to occupy the house and lot of the said H. C. Rockwell, assigned as a homestead in said proceeding, from the death of said Rockwell up to the present time. That R. A. Rockwell, the youngest child of said H. C. Rockwell, deceased, arrived at the age of 21 years on the _day of._1892. This action was begun on the 6th September, 1893. No dower was ever laid off and assigned to said widow; that said widow died, before the commencement of this action. That the judgments above set out have not been paid; that the homestead return, herewith sent, and the order of the Clerk and Judge, herewith sent, are the only papers in the proceeding relating to the homestead, except the petition and answer in said cause.”</p> <p>Upon the finding of the foregoing facts, the defendant asked'the Court to hold that the said judgments were barred by the Statute of Limitations.</p> <p>The Court declined to so hold, and the defendant excepted. The defendant asked the Court to hold that no homestead bad ever been laid off and assigned according to law, and that the return made in said proceeding, is void.</p> <p>The Court declined to so hold, and the defendant excepted. The Court adjudged that the Statutes of Limitation did not bar the claim sued on, and that the homestead relied bn. to prevent the bar of the statute was Valid in this proceeding. That the defendants were estopped by their answer and the judgment in the proceeding of Ellis, administrator, to sell the lands of the said H. 0. Rockwell, and, by tbeir occupancy of said homestead assigned in said proceeding, to deny the validity of said homestead allotment. The Court held that neither the seven years statute, the six years,- or the ten years statute, barred said judgment, the said homestead suspending the operation of said Statutes of Limitation.</p> <p>The Couz-t adjudged that the plaintiff have a license to sell the land described in the complaint, from which Judgment the defendant appealed to the Supreme Court.</p>

This was a civil action, brought for the purpose of setting aside a certain deed and certain bills 'of sale made by one H. C. Smith, deceased, to Ms wife, M. 0. Smith, on the grouuds of fraud and undue influence, tried at February Term, 1895, of the Superior Court of Columbus county, before Norwood, Judge, and a jury.

Civil actioN heard on demurrer to complaint and motion for bill of particulars, before Brown, J., at April Special Term, 1895. The complaint was as follows : “1. That, at the times hereinafter named, the defendant was Yice-President and a Director of the Bank of New Planover, of Wilmington, N. C., as he is informed and believes, which said bank was a corporation, duly created by the laws of North Carolina. “2.

Civil aotion, tried at April Special Term, 1895, of RobesoN Superior Court, before Brown, J., and a jury. There was a verdict for the plaintiffs, and defendant appealed, assigning as error the exclusion of the testimony referred to in the opinion of Associate Justice MONTGOMERY.

Civil aotioN, heard before Brown, This action was begun June 25, 1891. The plaintiff, Caroline E. McNeill, became of full age February 8, 1871, and intermarried with Thos. A. McNeill October 24, 1877.

Civil aotioN for tbe recovery of land, tried before PLoke, J., and a jury, at August Term, 1895, of Moobe Superior Court. Tbeie was a verdict for the plaintiff and defendant appealed.

Civil aotion, foi the recovery of land, tried before Bryan, J., and a Jury, at November Term, 1891, of Iredell Superior Court. The facts are succinctly stated in the opinion of Chief Justice Eairoloth. There was a verdict for the plaintiff and from the judgment thereon defendant appealed.

Action for damages for failure to deliver a telegram, tried before Norwood, J., and a jury, at August Term, 1895, of Iredell Superior Court. Upon the trial, defendant admitted the delivery of ibe message for transmission, the payment of costs therefor, and, further, that the telegram had never been delivered to Franklin Sherrill, for whom it was intended.

<p>This was a civil action tried before Norwood, Judge, and a jury, at August Term, 1895, of Iredell Superior Court.</p> <p>The plaintiffs brought an action of ejectment to recover possession of a certain tract of land. The defendant, G. W. Kerr, in his answer set up a parol trust in the ancestor of plaintiffs, alleging that previous to the sale of the land in question in 1871 by C. L. Summers, commissioner, Robert White, the ancestor of plaintiffs, agreed with him, the said Geo. W. Kerr, that he would attend said sale and purchase said land for said Kerr, and that he would convey the same to Kerr whenever he should repay the amount bid for said land at said sale : that in accordance therewith said White did bid off said land in his own name for $215, and that Kerr has paid a part of said purchase money, to-wit, $89, direct to said commissioner, and had paid the balance of said purchase money to said Robert White. That in 1886, long after the death of said White, some of the plaintiffs — his heirs-at-law — agreed with Kerr that if he would consent to a decree being made in the original case in wTiich the land was sold, that the legal title should be conveyed to them, the said heirs-at-law, that they would thereafter upon the payment to them of the difference between $89 and $215, make him a deed in fee simple to said land ; that in pursuance thereof said Kerr allowed such judgment to be made in said cause authorizing the legal title to be made to the plaintiffs, and that soon thereafter he tendered them the amount due under said compromise and they refused to accept the same or to make him a deed.</p> <p>The defendants tendered the following issues which his Honor refused and defendant excepted :</p> <p>“ 1. Is the plaintiff the owner of 154 acre.,tract described in the 3rd paragraph of the complaint ?</p> <p>“ 2. Did E. E. White purchase the lands in controversy at the sale thereof by C. L. Summers, commissioner, for $215 for Gf. W. Kerr under parol agreement to hold the same for Kerr and convey the same to him upon the payment of said $215 purchase money?</p> <p>“ 3. Did said Kerr consent to the decree in said case in 1886, with the heirs-at-law of said White under a like 'agreement ?</p> <p>“ 1. How much of said purchase money was paid by Kerr in his lifetime ?</p> <p>“ 5. Did the said Kerr, through his agent, tendei-to the heirs-at-law of White the balance of said purchase money in 1886 ?”</p> <p>The Court submitted the following issues :</p> <p>“ 1. Are the plaintiffs the owners of and entitled to the 25 acre tract ?</p> <p>“ 2. Are the plaintiffs the owners of and entitled to the 65 acre tract or any part thereof, and if so what?</p> <p>“3. "What damages, are the plaintiffs entitled to recover ?”</p> <p>The defendant requested the following instructions which were refused.</p> <p>“ 1. That if the jury believe that R. R. AVhite, ancestor of plaintiffs, contracted and agreed with G. W. Kerr, prior to the Commissioner’s sale in 1870 or 1871, to purchase the land in dispute at said sale for said Kerr and to take and hold the legal title to said land and hold the same for Kerr until Kerr should pay him back the purchase money, then the defendants in this action are the equitable owners in fee of said land and they should answer the first issue No.</p> <p>“ 2. That if the jury shall find the facts stated in first prayer to be true then the judgment in 1886 is not inconsistent with the equitable title of defendants and would not have the effect to defeat the same.</p> <p>“3. If the jury shall find that G. W. Kerr consented to the judgment and deed in 1886 making title to the plaintiffs, heirs of R. R. White, upon the understanding and agreement with them, or any of them, that the plaintiffs were to take and hold the legal title to said land under said decree and deed until Kerr should pay to them the balance of the purchase money as agreed, then they should find that the defendants are the equitable owners of the land and shall answer the issue ‘No.’</p> <p>“ 4. While it is true that it is necessary in order to establish a parol trust in land that something more than the simple declarations of the persons sought to be charged therewith is required; and while it is true that there must be proof of acts inconsistent with the purpose on his part to purchase and hold the land for himself absolutely, still, if tlie jury find as a fact from the evidence that (x. W. Kerr remained in possession of said land until his death, claiming it as his own, cultivating and receiving the profits of the same, returning the same for taxation as his own, and that the plaintiffs allowed and permitted this, that these facts are dehors the deed. (And are inconsistent with plaintiff’s claim for title and are sufficient to comply with the rule of evidence that the proof must be clear, strong and convincing.)”</p> <p>The plaintiffs prayed for the following instructions which were given:</p> <p>“3. And if the defendant Kerr should convince the jury by proof clear and convincing, that he had such contract with the plaintiffs to re-convey to him, and the jury should find and be satisfied that it was also understood and agreed that such re-conveyance to Kerr was to be made upon condition that he pay the purchase money for the land before he can invoke the aid of a Court of Equity, he must do equity and comply with his alleged agreement by paying for the land.</p> <p>“4. But to establish the trust which the defendants set up and rely on, it is necessary for the agreement between Kerr and the plaintiffs — the White heirs — allowing the defendant Kerr to redeem, as the defendants contend, it is necessary for such agreement to have been distinctly made and entered into between the plaintiffs, all of them, and the defendant Kerr before the deed was executed to the plaintiffs : for any agreement since then not in writing is insufficient, even if such had been made, and if made with one and not with the others, it is not binding on any except Kerr, the contracting party, and in considering whether there was such parol agreement the jury should consider the lapse of time and the reasonableness of long delay on the part of Kerr in carrying out his alleged agreement.”</p> <p>His Honor charged the jury, among other things, that according to the old practice as it existed before the adoption of the new Constitution in 1868, only legal defences could be made to legal actions — that if one should have an equitable defence he was not allowed to set it up and thus defeat the legal title, but the defendant was forced to submit to the plaintiff’s recovery at law and then go into a Court of Equity and enjoin the enforcement of the judgment at law. But that now law and equity are administered by the same Court.</p> <p>“2. There is a difference between an equitable estate and equitable right. If the defendant, G. W. Kerr, has not paid the full amount of the purchase money he contracted and agreed to pay, he has an equitable right merely but not an equitable estate. An equitable estate would be a good defence to this action but an equitable right is not. If neither G. W. Kerr nor his heirs or assigns have paid or tendered the money for the land, the defendants will have to go out of possession and assert their rights, if they have any, after payment of the purchase money according to agreement.</p> <p>“3. If the jury find the parol contract claimed by plaintiffs to have been made with R. R. White, and if they shall further find that G. W. Kerr, deceased, paid or tendered all the money either to R. R. White or the Cleric Summers, then the jdaintiffs are not entitled to recover, and you should answer the first issue £No.’</p> <p>“4. If the jury find there was no such contract with R. R. White, or there being such a contract, that all the purchase money was not paid, neither by G. W. Kerr nor his heirs nor assigns, then the plaintiffs are entitled to your verdict unless you find contract such as could give rise to the trust claimed with R. R. White and payment or tender by Kerr, &c., of the purchase money.”</p> <p>There were other instructions by his Honor as to the burden of proof, the quantum of evidence and upon other points, which instructions were not excepted to by defendants and hence is not set out here.</p> <p>There was a verdict for the plaintiffs as set out in the record. Judgment by his Honor. Motion for a new trial, assigning as errors refusal to admit defendants’ issues ; the submission of plaintiffs’ issues ; instructions of his Honor in paragraphs 2, 3, 4 and 5 of his charge as set forth ; refusal to instruct the jury as prayed for by defendants in their prayers for instruction, numbered 1, 2,3,4. Also for instructing the jury as prayed for by the plaintiffs in their prayers for instructions numbers 3 and 4.</p> <p>The motion was overruled and defendants excepted and appealed.</p>

Proceedings under the Statute, Section 2128 of The Code, for the allotment of a year’s allowance, heard before Bryan, J., at Chambers, during April Term, 1895, of Stokes Superior Court, on appeal from Superior Court Clerk. The facts appear in the opinion of Associate Justice MONTGOMERY.

ActioN brought by the commissioners of Stokes county upon the bond of the defendant as Sheriff of Stokes county. It was referred to J. W. Neal who reported that the balance due by the Sheriff for the taxes of 1891 and 1892 was on Sept. 5th, 1894, $1,199.50, of which no part has been paid since said date.

Civil actioN by the Board of Education of Stokes county against a sheriff of said county and the sureties on his official bond, heard before Bryan, J., at Spring Term, 1895, of Stokes Superior Court.

Motion to dissolve a warrant of attachment, heard before Bryan, J., at Chambers, in Winston, N. 0., pursuant to an order to show cause, &c., made at Spring Term, 1895, of Stokes Superior Court. The motion was allowed and plaintiff appealed. The facts appear in the opinion of Associate Justice MONTGOMERY.

MotioN to dissolve warrant of attachment, heard before Bryan, L, at Chambers, at Winston, pursuant to order to show cause, &c., made at Spring Term, 1895, of Stoiíes Superior Court. The material facts are the same as stated in Davie v. Blackburn, ante. The motion was allowed and plaintiff, the Durham Fertilizer Co., appealed.

AotioN of ejectment, tried at Pali Term, 1895, of Stokes Superior Court, before Bryan, J., and a jury. There was verdict for the defendant, and from the judgment thereon plaintiffs appealed. The facts appear in the opinion of Chief Justice Haircloth.

AotioN of claim and delivery, beard before Bryan, J., at Spring Term, 1895, of Stokes Superior Court. R. D. East justified as surety on defendant’s replevin bond for $100, and J. S. Smith on an additional bond for $200. There was judgment for plaintiff against defendants Whit-ten and East, and from a judgment refusing a motion to set aside the judgment as to him, R. I). East appealed.

Civil aotion, commenced on the 2nd day of November, 1887, and tried before Winston, Judge, and a jury, at Stokes Superior Court. The Court submitted, by consent of the parties, the issues as follows, to-wit: Is the plaintiff the owner of and entitled to the possession of the land described in the complaint ? Answer: Yes.

<p>Civil actioN, tried before Brown, Judge, and a jury, Fall Term, 1895, of Stoees Superior Court.</p> <p>The-defendant, Pepper, was allowed to come in and be made a defendant, as the alleged landlord of the defendant Martin, claiming the property in dispute ; whereupon the trespass was claimed to have been committed by virtue of a certain paper writing or contract, under seal, executed between the plaintiff and said Pepper, a copy of which is set up in the defendant’s answer, and marked “Exhibit A.”</p> <p>The following issues were submitted without objection :</p> <p>“1. Were the words ‘five years,’ whereby the duration of Pepper’s rights under the written deed of October 20th, 1882, was to be limited to that period, omitted from the said paper-writing by the fraud and imposition of the defendant, N. M. Pepper, the draughtsman thereof, and the mistake of the plaintiff?</p> <p>“Answer. ‘No.’</p> <p>“2. Has the defendant, the said Pepper, forfeited all rights under said contract of October 20th, 1882, for failure to operate or sell said mine ?</p> <p>“Answer. ‘Yes.’</p> <p>“3. Did the defendant during 1894, shortly before the commencement of this action, wrongfully and unlawfully enter upon the said lands of the plaintiff, as alleged in the complaint ?</p> <p>“Answer. ‘Yes.’</p> <p>“4. What damage has,the plaintiff sustained by said trespass, if any ?</p> <p>“Answer. ‘One penny.’ ”</p> <p>The defendant, in apt time, objected to the submission of issue No. 2, upon the ground that said paper-writing of October 20th, 1882, was a deed of bargain and sale, and the estate of Pepper therein could not be forfeited.</p> <p>Objection overruled ; exception by defendant.</p> <p>James Hawkins testified in his own behalf: That he was in possession, and had been for a long number of years, of a farm and a tract of land, whereon he resided, in the county of Stokes, in which was situated the mica mine and mineral property, described in the said paper-writing of October the 20th, 1882; that he signed and executed said paper writing, and delivered it to N. M. Pepper. That the said Pepper and his associates commenced to operate said mine, and did operate it continuously up to and including the year 1885. The last work was done on the mine in 1885 ; since then they have not operated the mine at all.</p> <p>I notified the defendants, about three months before this suit was brought, to keep oif this land, and demanded said paper-writing to be surrendered. After I notified them, they commenced to work a part of each day and put the defendant Martin there to work. It was eight years, during which they did not work at all. I brought this suit and got an injunction and stopped it.</p> <p>The defendants, in due time, objected to all of the above testimony as to non-user and abandonment. Objection overruled, exception by defendant.</p> <p>There was much other testimony given by the plaintiff, as well as the defendants, in regard to the first issue, which it is unnecessary to set out.</p> <p>The defendant, N. M. Pepper, and his witness, James A. Pepper, testified: That immediately upon the execution of the contract, dated October the 20th, 1882, a copy of which is made a part of defendant’s answer, they began to work in the mine, on the lands of the plaintiff, and got out a considerable amount of mica, and continued to work said mine until about the month of August, 1886, when it was found unprofitable to work the mine, and it was discontinued and not regularly worked again until the year 1894, except on several occasions; during that period, the defendants got out some specimens of mica in < rder to sell the mine. In 1894 they put the defendant, Martin, there to work. That, ever since 1882, the defendant, N M. Pepper has made many efforts to sell the mine, and lias, during the time, sent specimens of the mica over the country, and written a great many letters, offering the mine for sale, and has at times obtained proposals for the purchase, w'hich fell through, and as yet has not been able to sell the property. That, in 1893, they were negotiating a sale, but it fell through.</p> <p>At the close of the evidence, the court instructed the jury that upon the entire evidence, they'should answer the second issue, Yes. The jury rendered a verdict for the plaintiff.</p> <p>Defendant moved for a new trial, assigning errors as follows :</p> <p>“1. Error in the admission of evidence ori behalf of the plaintiff, tending to show that the defendant, N. M. Pepper, had failed to work the mine between August, 1886, and 1894.</p> <p>“2d. For error in submitting issue No. 2. Eor error in charge of the court as to issue No. 2, as above set out.”</p> <p>Motion overruled. Judgment for the plaintiff and defendant appealed.</p> <p>Exhibit A. was as follows :</p> <p>“State op Noeth OaeoliNa,</p> <p>“Stoees CouNty, October 20th, 1882.</p> <p>“Know all men by these presents, That I, James Hawkins, of the county of Stokes, and State of North Carolina, of the first part, for and in consideration of the sum of one dollar, to us in hand paid by N. M. Pepper of the county and State aforesaid, of the other part, the receipt whereof is hereby acknowledged, have this day bargained and sold, and by these presents do bargain and sell unto N. M. Pepper, his heirs and assigns, all our right, title, interest and claim in and to all the iron, copper and lead ores, and also all other minerals that may be found in, on ánd appertaining to the lands of the said James Hawkins, lying in the county of Stokes, on the waters of Raccoon Creek, adjoining the lands of Joel Hawkins and Joseph Hutchins, beginning at Joel Hawkins’ line, thence np the creek to the mouth of the Little branch; thence up the branch as it meanders to the head of said branch; thence south to Joel Hawkins’ line; thence with his line to the beginning, supposed to contain five acres: with the privilege of ingress and egress, entering on any part of said land and premises to dig, mine and cari'y away any of said minerals, ores or metals, and to build machinery of any kind, use any water power for any purpose, build and use tram, rail and other roads, over any part of said land, with the right to vise any timber, or other material necessary to the mining and working of said minerals to fit the same for any market, all of which rights and privileges, the said N. M. Pepper, his heirs or assigns, shall have the full power to convey to other party or parties. For the consideration aforesaid, the said N. M. Pepper agrees to make, or cause to be made, examination of the aforesaid lands, and, if any valuable minerals are found, shall pay the said James Hawkins one-half of the net amount he may receive for the said nminerals or metals; or, in case the said N. M. Pepper shall convey the rights and privileges hereby granted to other party or parties, then and in that case, he, the said N. M. Pepper, shall pay the party of the first part two hundred dollars, and in addition thereto shall pay the said party of the first part one-half the remainder of the net amount he may receive for the said minerals and privileges, after dedzzct-ing the expense of developing the same, erecting machinery, etc.</p> <p>“In witness whereof, we have hereunto set our hands and seals,, the day and year first above written.</p> <p>“Witness: ' James HawkiNS. [Seal.]</p> <p>“James A.. Pepper, N. M. Pepper. [Seal.]”</p> <p>“Jay W. Peiu?er.</p>

<p>PetitioN by defendants to rehear the same case, reported in 116 N. C., 684. The petition was as follows:</p> <p>“1st. That the above-entitled cause was regularly heard at the February Term, 1895, of the Supreme Court of North Carolina, upon the call of the 9th Judicial District, and an opinion rendered by his Honor, Avery, Justice, said cause having been taken by appeal from the November Term, 1894, of Forsyth Superior Court. Your petitioners now make, as part of this petition, the record of said cause, as appears in the Supreme Court aforesaid. And now ask and pray for a rehearing of said cause, upon the following alleged errors of law and matters overlooked, wherein your petitioners most respectfully say they have just cause of complaint.</p> <p>“2nd. Your petitioners respectfully say : That the first alleged error was in relation to what is called in the pleadings the Factory Lot, wherein the Court held that the evidence offered by the defendants, to establish a trust in said factory lot in behalf of John L. Gilmer and Powell Gilmer, was not sufficient; but that the said evidence only created the relation of debtor and creditor between J. E. Gilmer and wife, Laura Gilmer.”</p> <p>1st error: That the court committed an alleged error of law, in that they held the said contract of J. E. Gilmer and wife, Laura Gilmer, was executory, and therefore the notes became the property of ,J. E. Gilmer by his wife’s death. (See George v. High, 85 N. C., 99 ; Dula v. Young, 7Ó N. C., 450). Eor that it is manifest, to sustain the trust in this case, the contract between husband and wife was executed at the time, and under the express agreement with his wife, J. E. Gilmer took his wife’s money, which he then had, and purchased the factory lot and constructed the improvements thereon.</p> <p>II. For the alleged matters overlooked: The Court said “he bought the land with the firm’s money, and constructed the building thereon also with the funds of the firm;” whereas the court overlooked the testimony of J. E. Gilmer, to-wit: “that the money in the firm of Edmunds & Gilmer was his wife’s money, and which he took out- of the firm, by express agreement between his wife and himself that he should so take out the funds, buy the lot and construct the factory on it.” The - Court overlooked the. testimony of E. C. Edmunds to the same import.</p> <p>The Court further said : “He subsequently, in 1891, bought his partner out without any directions or instructions from his wife, who was not consulted;” whereas the Court overlooked the testimony of J. E. Gilmer, that he “bought his partner out by the express direction of his wife, who was consulted about the matter, and by. an agreement with her that he would, with the money of ker’s in the firm, purchase the lot and build the factory thereon.”</p> <p>The Court further said : “In 1892 he executed more notes t<> his wife and entered credits on those then existing.” In this the Court was misled by the printed record, taken from erroneous copy made by the tidal Judge, who inadvertently put in 1892 for “1882,” as this will plainly appear from the notes of the evidence taken by the Judge at the trial, in his own handwriting, and by the original notes themselves, which were exhibited on trial.</p> <p>III. For alleged errors of law and matters overlooked: In that the court held that the deed in trust, from J. E. Gilmer fco-J. W. Sheppard, was void under the Acts of 1893, chapter 463, for failure to file schedule of preferred debts by trustor, and for failure to file inventory and accounts by trustee, as provided in said act.</p> <p>The Court says : “When a mortgage is made of the entirety of a large estate, for a pre-existing debt, omitting only an insignificant remnant of property, said mortgage comes within the provisions of said Act.” The Court overlooked the evidence that there was a large amount of property of greater value than that conveyed in the trust, owned and held by the trustor at the time of the execution of said deed.</p> <p>Tiiat the court has overlooked the fact that the trust contained a clause of defeasance, making it an oidinary deed in trust and not a general assignment for the benefit of creditors. See Woodruff v. Bowles, 104 N. 0., 197.</p> <p>For alleged errors of law : “For that the court held that the deed in trust, aforesaid, was a general assignment.</p> <p>For that the court held that such deed in trust comes under the provisions of said act, when it is manifest from the provisions thereof that the said act of Assembly is an act regulating and providing for the settlement of the estates of insolvents, by providing that all their debts shall at once become due, and for the settlement of their estates before the clerk.</p> <p>Your petitioners respectfully say: The court having only granted a new trial, there is no order made in the cause, that your petitioners must perform, before prefer-ing this petition. Your petitioners, therefore, respectfully ask of the court for the alleged errors of law and matters overlooked, that they be allowed a rehearing of said case, upon the two restricted and specified points as herein set forth.”</p> <p>On the petition Avert, J., endorsed the following order :</p> <p>“I am of opinion that a rehearing should be granted upon the questions :</p> <p>“1. Whether the court overlooked any testimony tending to take the deed executed by J. E. Gilmer to J. W. Sheppard out of the class of deeds of assignment to which, the Act of 1893, chapter 453, is applicable.</p> <p>“2. Upon the question whether, in any aspect of the evidence, there was error in holding that the deed executed by J. E. Gilmer, to his sons, was without consideration and void as to creditors, and that the agreement of J. E. Gilmer with his wife was executory, and especially upon the question whether .the testimony of J. E. Gilmer and E. 0. Edmunds w.as not overlooked by the court, in stating the conclusion of law as to the validity of said last-named deed.</p> <p>(Signed.) “Aveey, J.”</p>

Civil action, to-declare void a deed of assignment made by the Sneed Furniture Company to the defendant, Joe Jacobs, trustee, upon the ground of fraud, etc., tried before Bryan, J., and a jury, at May Term, 1S95, of Eoestth Superior Court. There was a verdict for the plaintiff and from the judgment thereon the defendant appealed. The facts are sufficiently stated in the opinion of Associate Justice ClaeK.

AotioN by T. L. Yaughn in behalf of himself, &c., against the board of commissioners of Forsyth county, to restrain defendants from issuing county notes to pay for the cost of a new court-house, heard, on motion for an injunction, before Brown, J., at Chambers. The complaint was as follows : “The plaintiff complains and alleges : “1.

AotioN for damages for delay in delivering a telegraphic message, tried before Battle, D., at August Term, 1894, of Eorsyth Superior Court. On the trial it appeared that the brother of the plaintiff filed a message, prepaid, with the agent of the defendant at Barksdale, Ya., at 8 o’clock, A. M., November 21, 1891, for transmission to plaintiff at Winston, N. 0., where he lived.

Civil aotioN, for the recovery of land, tried before Brown, J., at Fall Term, 1895, of Davie Superior Court, on a case agreed, the material facts of which appear in the opinion of Chief Justice Faiecloth. ITis Honor held that the plaintiff was not entitled to recover and rendered judgment accordingly, and plaintiff appealed.

ActioN for the recovery of land, begun in February, 1892, and tried before Battle, J., at Fall Term, 1894, of WilKes Superior Court. The main question involved was one of boundary, depending on the proper location of the South boundary of a grant called the “Moravian Grant.” This grant commences at an island in the Yadkin river ; thence west; thence south to a beech tree on Moravian creek, near the mouth of a branch ; and thence east, and thence to the beginning.

Civil action for the recovery of land, tried at Fall Term, 1894, of ALEXANDER Superior Court before Brown, J. Upon an intimation by his Honor that he could not recover, the plaintiff submitted to a non-suit and appealed. The facts sufficiently appear in the opinion of Associate Justice Montgomery.

Civil aotioN pending in SuRRY Superior Court, to enjoin the sale of real estate and for other relief, heard before Battle, J., at Chambers, on December 6,1894. The temporary restraining order was dissolved, and injunction refused, and plaintiff appealed. The facts appear in the opinion of Associate Justice. Furoiies.

PetitioN for partition, filed before the Clerk of the Superior Court of Sukby County, and, upon issues joined, transferred for trial to the Civil Issue Docket at Term and tried before Brown, J., at Pali Term, 1895, of said Court. The facts appear in the opinion of Associate Justice MONTGOMERY. The jury under instructions from his Honor answered the issues in favor of the plaintiff, and from the judgment thereon the defendant, Hattie L. Pass, appealed.

<p>Municipal Bonds — Elections—Qualified Voters — Registration.</p> <p>1. The registration list is prima facie evidence as to who constituted qualified voters ia a municipality, notwithstanding the list was recorded in the same hook in which the municipal authorities kept a record of their proceedings.</p> <p>2. The purchaser of municipal bonds is not required when looking into the validity of an election on the issue of bonds for a subscription by a municipality to the stock of a railroad company, to go further than to ñnd, from the certificate of the registrar that a majority of the qualified voters of the municipality had voted for the subscription.</p> <p>8. One who, before buying bonds issued under a vote of the qualified voters of a town, examines the election proceedings, and finds that a majority of the registered voters voted in favor of the issue, need not inquire whether the voters were legally registered where the registrar certified that each voter was so registered, and the returns of the canvass by the registrar and judges of election were approved by the county commissioners, though the result of the election was not formally declared by such commissioners as required by Laws 1887,- ch. 87.</p>

Habeas ookpus proceeding by Alice Murrill, step-grandmother, and S. D’Anna, the father, against Mary Thompson, the mother, of a child, Hugh D’Anna, for its custody, pending in Catawba Superior Court and heard before Timberlake, J., at Chambers, at Louisburg, on the 31st day of October, 1895. His Honor found the following facts : “1.

Civil aotioN for tbe recovery of land, tried before Tim-berlalce, J., at Spring Term, 1895, of Mitohell Superior Court. The facts appear in the opinion of Chief Justice Eaiecloth. There was a verdict for the defendant and plaintiff appealed from the judgment thereon.

CrvTL ACTION, tried before Timberlake, J., and a jury at Spring Term, 189a, of Caldwell Superior Court. The facts appear in the opinion of Associate Justice Mont-goMery. Upon an intimation by his Honor that he could not recover, plaintiff submitted to a non-suit and appealed.

Civil action, pending in the Superior Court of Mitchell county, in which a receiver of the defendant corporation was appointed September 1st, 1893. A motion was made by the defendant and heard by his Honor, Judge Timber-lake, at Chambers, in Lenoir, on 3d April, 1895, for the discharge of the receiver.

Civil ACTION for the recovery of land tried before Tim-berlake, J., and a jury, at Spring Term, 1895, of Caldwell Superior Court. There was a verdict for the plaintiff and defendants appealed. The facts sufficiently appear in the opinion of Associate Justice AveRy.

This was an application by the plaintiff for the continuation of an injunction heard before his Honor, Bryan, J., at Chambers in Morganton, N. C., on August 24th, 1895. His Honor, after considering the pleadings, affidavits and arguments of counsel, refused the motion for an injunction and dissolved the restraining order, and plaintiff appealed. The grounds upon which the injunction was asked are stated in the opinion of Chief Justice EaiRoloth.

MotioN by T. A. Fowler to set aside a judgment rendered at January Term, 1895, of UNION Superior Court, beard before Timberlahe, Jupon affidavits alleging excusable neglect, &c. ITis Honor refused the motion and defendant appealed. The facts appear in the opinion of Chief Justice Eaikoloth.

This was a civil action, commenced before a justice of the peace, and brought by appeal to the Superior Court of Gaston county, and tried before his Honor, E. W. Tim-berlahe, Judge, and a jury, at September Term, 1895, of Gaston County Superior Court.

Civil actioN, beard before Tvmherlahe, J., at E'all Term, 1895, of GastoN Superior Court. Tbe plaintiff appealed. In tbis Court tbe defendant moved to dismiss for failure of appellant to print necessary parts of tbe record.

<p>Upon motion of appellant to reinstate the appeal.</p>

<p>Action to Recover Land — Peed, Pate and Pelivery of— Presxamption — Triad—Exceptions—Questions for Jury —Exceptions.</p> <p>1. A deed is presumed to have been delivered at the time it bears date, unless the contrary is satisfactorily shown.</p> <p>2. Whenever the rules of evidence give to testimony the artificial weight of a presumption, the question whether it is rebutted by parol evidence introduced for the purpose, must go to the jury unless the truth of such rebutting testimony is admitted ; hence,</p> <p>3. If a party, having the right to insist upon the presumption that a deed was delivered at the time of its date, controverts the truth of the rebutting testimony, it is for the jury to decide whether the presumption has been overcome by such testimony.</p> <p>4. A party is not precluded from the privilege of contradicting his own witness by testimony inconsistent with that of the latter, but cannot impeach him by attacking his credibility; hence,</p> <p>5. The fact that a witness testified that a deed was delivered at a time subsequent to its date did not preclude the party offering such witness from relying on the presumption to the contrary.</p> <p>6. An exception to an instruction which does not point out the specific error complained of, is too general to be considered.</p> <p>7. Where, in an action to recover land, plaintiff introduced evidence tending to show grants from the State and mesne conveyances connecting with them, and also possession for seven years under color of title, it was proper to submit to the jury the question of his right to recover.</p> <p>8. Where a party did not ask for specific instructions, he cannot object to, those given on the ground that they are too general.</p>

Civil actioN, tried before his Honor, Timberlahe, J., at Eall Term, 1895, of ClevelaND Superior Court, on appeal from the judgment of a Justice of the Peace. TJpon ah intimation by his Honor that, upon all the evidence, the plaintiff could not recover, the latter submitted to a non-suit and appealed. The facts are stated in the opinion of Associate Justice Avert.

Civil aotioN, heard before TimberlaJee, J., at Fall Term, 1895, of ClevelaNd Superior Court, it being agreed that if the Rule in Shelley’s Case should be held to apply in the construction of the deed for the land in controversy, judgment should be rendered for defendants, otherwise for the plaintiffs.

<p>AotioN heard upon complaint and demurrer before Tim-beHaTee, J~., at Fall Term, 1895, of Stanly Superior Court. The action is brought for the recovery of certain personal property and plaintiffs invoke the remedy of claim and delivery and file the usual affidavit and undertaking. Plaintiffs complaining allege:</p> <p>“That they are the owners and entitled to the'immediate possession, by virtue of certain chattel mortgages executed to plaintiffs by S. T. Morgan, of the following described property, to-wit: One mouse colored mare, one red horned cow, one pieded horned cow, one white pieded cow, one red cow, one white bull, described and conveyed in the said chattel mortgage.</p> <p>“2. That the property is worth about the sum of one hundred dollars.</p> <p>“3. That defendant, Mrs. S. F. Morgan, wife of S. F. Morgan, and defendant J. F. Morgan, son of said S. F. Morgan, are in. the unlawful and wrongful possession of the property and unlawfully and wrongfully withhold the possession from plaintiff.</p> <p>“4. That S. F. Morgan, husband and father of defendants, is not now living with his family and has gone out of this State under a charge of felony, and is a non-resident of this State as he was at the time of the commencement of this action. Wherefore, plaintiffs demand judgment for possession of the property ; for the value in case actual possession cannot be had ; for $50 damage for unlawful detention and deterioration in value, and for general relief and costs.”</p> <p>The case having been removed to Stanly county for trial the defendants in due time filed the following demurrer to the complaint:</p> <p>“1. Eor that the names of the parties plaintiff either in the summons or complaint are not given.</p> <p>“2. For that the action is brought against a married woman to foreclose a chattel mortgage executed by her husband, and the husband is not made a party.</p> <p>“3. For that the action is brought agaipst the defendants, who are alleged to be in the possession of certain persona] property mortgaged to plaintiffs by the husband of thefeme defendant, but the complaint does not allege that a demand for the possession of said property was made of the defendants before action commenced, nor a wrongful conversion of the property by defendants.</p> <p>“4. For that the summons in the action simply designates or.e of the defendants as Mr. Morgan.”</p> <p>The Court overruled the demurrer and the defendants excepted. Plaintiff then moved for judgment on the ground that the demurrer was frivolous and the court gave judgment declaring the demurrer frivolous and for the recovery of the property, or its value. Defendants excepted and appealed.</p>

Civil aotioN, in the nature of a Creditors Bill, to set aside as fraudulent certain judgments suffered by the defendant, Z. F. Long, and the transfer by him of personal property, brought in MeoKlbNburg Superior Court against the said Long and others to whom he had conveyed personal property and in whose favor he had suffered judgments to be taken against him.

This was a special PROCEEDING for the partition of certain real estate in the proceedings described. The defendants denied the right of the plaintiffs to partition, owing to the existence of an estate, during the widowhood of Alice Owens, in the realty.

This was a civil actioN which came on for trial before Robinson, Judge, at June Term, 1895, of MeoicleNbueg Superior Court, upon exceptions to the report of a referee. The case had come on for trial before Malver, Judge, and a jury, at Fall Term, 1893, when neither party having tendered issues the court undertook to make up the issues during the trial.

This was a oivil ACTION, brought by the plaintiif against the defendant, to recover judgment for $268.00, being an action simply to ascertain the debt, and heard by Tirnber-laTce, Judge, at Spring Term, 1895, of YaNOicy Court, on a motion made by J. C. Byrd and A. J. Burton, the husbands of two of the heirs-at-law of the defendant’s intestate, C. H. Byrd, to make the heirs-at-law of said intestate parties defendant in said action and allow them to defend the same.

Civil action, tried at December Term, 1894, of BuNooMbe Superior Court, before Boylcin, J. On the 10th day of October, 1891, the defendant Gilliam made his draft upon the Asheville Furniture and Lumber Company, payable to his own order, of which the following is a copy : “ $100. Asheville, N. C., October 10th, 1891. Ninety days after date pay to the order of A. W. Gilliam four hundred dollars, value received, and charge the same to account of A. W. Gilliam.

Civil aotioN, tried before Robinson, J., and a jury, at December Term, 1S95, of BuNCOMbb Superior Court. There was judgment for the plaintiffs and defendant appealed. The facts are stated in the opinion of Chief Justice Faieoloth. (For former appeal, see 116 N. C., 821).

<p>Contempt of Court — Publication of Court Proceedings— ' Trial for Contempt.</p> <p>1. The power of a court to punish, summarily for contempt, for an act committed in its presence or so near its sittings as to disturb its proceedings, or that is calculated to disturb the business of the court, impair its usefulness or to bring it into contempt, cannot be taken away from the court by legislation.</p> <p>S. The power of the courts, which existed at common law, to punish, for contempt, offenders committing acts not in the presence of the court but calculated and intended to impair the usefulness of the courts and to bring them into disrespect, maybe regulated by legislation.</p> <p>3. Where, in a proceeding- for contempt in publishing a report of a ease tried in court, the respondent, in his answer to the rule, stated that he believed the statement published by him to be correct and that it was not made to bring the court into contempt, he was entitled to have the issue tried, not by a jury but by the court, if there was nothing on the face of the publication to show that it was grossly incorrect or calculated to bring the court into contempt.</p> <p>4. As to the intent with which a publication was made, the sworn answer of the respondent is conclusive.</p>

Civil aotioN, for damages, tried before ¿Shuford, J., and a jury, at August Term, 1894, of Buntoombe Superior Court. There was a verdict for the plaintiff by which he was awarded $600 in damages and from the judgment thereon defendant appealed. The material facts appear in the opinion of Chief Justice Eairoloth.

Civil action, heard on demurrer to the amended complaint, before Mclver, J., at Spring Term, 1894, of Bira-OOMBE Superior Court. The demurrer was overruled and defendant appealed. The amended complaint was as follows : “1.

AotioN for damages,' for an injury to plaintiff’s mule caused by a defective railroad crossing, tried before JBoy-Mn, J., at Spring Term, 1895, of Beaueobt Superior Court. There was judgment for the plaintiff and defendant appealed. The facts sufficiently appear in the opinion of Associate Justice Aveby. •

<p>PetitioN to rehear case reported in 115 N. C., 602.</p>

Civil aotioN to recover damages from the defendant for tbe obstruction of the passage of plaintiff’s boat by defendant’s bridge across Tar Biver, Tarboro, tried before Mclver, Judge, and a jury, at June Term, 1895, of Edgecombe Superior Court.

<p>Action for Damages — Common Carriers — Railroad Companies, Liability of for Wrongful Acts of' Servants.</p> <p>1. Except where the proximate cause of an injury to a passenger is the act of God, or the public enemy, and beyond the power of a common carrier, exceeding all reasonable effort, to prevent it, the carrier is liable as an insurer, and is bound to exercise the greatest practicable care and the highest degree of prudence and utmost human skill to protect its patrons against loss or damage, and this duty exists from the inception to the end of the relation created by the contract of carriage.</p> <p>2. A patron of a common carrier while on the premises of the latter, on business connected therewith, is entitled from the agents of such common carrier to protection from assault, injury and insult, and violent language or conduct of the patron wi21 not justify or excuse the violent language or conduct of the agent of the carrier.</p> <p>3. A common carrier is liable for the violent conduct of its agent when acting within the scope of his employment or line of duty.</p> <p>4. Whether the wrongful act of a servant, for which its employer is sought to be held responsible, was committed by the servant while in the service of his employer, and in the scope of his employment, is a question for the jury.</p> <p>5. Where, in an action against a railroad company for damages for the wrongful killing of plaintiff’s intestate by defendant’s depot agent, it appeared that decedent, while at the defendant’s depot, taking out his baggage, which, as a passenger, he had left there, was shot and killed by the depot agent on account of abusive language which the decedent used'to the agent, and the jury found for their verdict that the agent was acting in the line of his employment as such, its verdict will not be disturbed.</p> <p>6. In such case, when the killing was shown, the burden of showing extenuating circumstances by a preponderance of evidence was on the defendant.</p> <p>(Avery, J., concurs, but dissents from so much of the opinion of the Chief J ustice as (according to his construction of it) makes the liability of defendant dependent upon the question whether the agent was acting within the scope of his employment, he holding the view that the liability of a common carrier for the acts of its servants is absolute as to injuries inflicted by them on persons under their protection. He also emphasizes his view that the principle decided by this ease applies only to common carriers, andnotto master and servant generally.)</p>

Civil aotioh, tried at December Term, 1894, of Pitt Superior Court, before Mebane, J., anda jury. The action was for damages for diversion of water by defendants on the lands of the plaintiff. There was judgment for the plaintiff, and defendant appealed.

This was a oivm actioN to recover damages for the alleged negligent killing of the plaintiff’s intestate by the defendant, tried at February Term, 1895, of Duplik Superior court, before Soke, */., and a jury. The defendant denied the allegation of negligence, and alleged that the intestate of the plaintiff was guilty of contributory negligence. On the trial P. G-. Wilson testified as follows : In morning deceased and another boy passed me going up towards railroad.

Civil aotiomt, tried before Holce, J.and a jury, at May-Term, 1895, of LeNOIr Superior Court. On the conclusion of the testimony, his Honor intimated that, upon the evidence, the plaintiff was not entitled to recover and the plaintiff submitted to a non suit and appealed. The facts appear in the opinion of Chief Justice Eairoloth.

Civil aotioN, tried before Poke, P, and a jury, at August Term, 1895, of Moore Superior Court, to recover damages for killing plaintiff’s cowr through negligence of defendant. There was verdict for the plaintiff and defendant appealed from the judgment thereon.

<p>Action for Damages — Expert Testimony — Discretion of Oourt — Railroad Companies — Right of Way — Fires from Engine Sparks.</p> <p>1. Whether a witness oflered as an expert has the necessary quali. fixations is a matter largely within the discretion of the court and where there is any evidence of it, the finding like " that of the jury is not reviewable in this- Oourt.</p> <p>• 3. The refusal to permit a witness who has testified that he is a professor of civil engineering, and has made the law of moving bodies a study, and can tell how far a train will move by its momentum, to testify as an expert as to the distance such train would travel, in order to contradict the testimony of . other witnesses testifying from practical experience, will not be disturbed on appeal.</p> <p>3" A railroad company is liable for any damage that may result to owners of land adjacent to its right of way caused by the spreading of fire which originates from the falling of sparks from its engine upon grass or other inflammable material neg. ligdntly left upon the right of way.</p> <p>4. In an action against a railway company for damages from fire alleged to have been started by sparks from defendant’s engine, an instruction that it was defendant’s duty to keep its track clear of substances liable to be ignited by sparks as far as might be necessary to prevent fires, even to the full width of the right of way, was proper.</p> <p>5. In such case an instruction that it was defendant’s duty to equip its road with modern appliances ‘'sufficient to guard against the escape of fire,"’ and to have its engines manned by competent men, and that if the jury “were satisfied” that the engine had modern appliances to guard against fires, and was manned by competent men, and was carefully operated, there would be no negligence in respect to the engine, sufficiently shows the. duty of defendant.</p> <p>6. Such instruction sufficiently places the burden on defendant of satisfying the jury that its engines were properly equipped and manned. •</p>

Civil ACTION, tried before Winston, Judge, and a jury, at December Term, 1895, of MbokleNbukg Superior Court, on appeal from Justice’s Court. The action was to recover damages for alleged injuries to plaintiff’s buggy and mule, caused by the negligence of the defendant in running its street cars. The plaintiff, Kobert Doster, in his own behalf, testified : “I came into Charlotte the 1st day of March, 1893, driving a mule to buggy, Miss Culp being with me in the buggy.

<p>Disputed Boundary, Establishment — Answer—Practice.</p> <p>Where, in a proceeding to establish a boundary line under chapter 22, Acts of 1893, which requires the answer only to contain a denial of the line set out in the petition, the defendant filed an affidavit entitled in the cause and denying fully and unequivocally the correctness of the line as claimed by the plaintiff; Held that, while such practice is not commended, such affidavit should be treated‘as an answer although its original purpose was to obtain time to file a formal answer in which might be incorporated the results of a survey which defendant proposed to have made.</p>

Civil action pending in Beaufort Superior Court and heard before Brown, J. at Chambers, upon a case agreed as follows : “l.- On and prior to January 15th, 1892, the plaintiff, A. W. Thomas, was seized in fee simple of a lot or parcel of land situated in Beaufort County and in the town of Washington, viz. : A lot of land in that part of said town known as “Bonner’s Old Part,” and being a part of lot No. 26, and being the part thereof occupied by the store building now rented…

INDICTMENT eor LARCENY, tried before Bryan, J'., and a jury, at Spring Term of Craven Superior Court. The defendant was convicted and appealed. The facts appear in the opinion of Associate Justice Clare.

INDICTMENT under Section 1067, of The Code, for the stealing of the temporary use of a horse, tried before Mclver, J., at Fall Term, 1895, of Pitt Superior Court. The defendants were convicted and appealed. The facts are stated in the opinion of Associate Justice ClarK.

<p>iNpioTMENT for bastardy, tried beftíré Oolle, I., it 'Spring Term, 1895, of Pitt Superior Court. The defendant was convicted anil appealed "'as 'a 'paupfe'r. In 'this Court the Attorney-G-eneral made a motion to dismiss the appeal upon the ground that the affidavit upon which the application to appeal as a pauper was based, was insufficient in that it did not state the name of the counsel who advised that he had reasonable ground of appeal. The motion was refused. The facts of the case and the exception upon which the appeal is based are stated in the opinion of Associate Justice Burches.</p>

<p>Indictment for Betting at a Game of Chanee — Games of Oha/noe, ~What Constitutes — Rafting—Trial of Skill—Progressive Euchre” and Similar Games.</p> <p>1. Where several parties each put up a piece of money and then decide, by throwing dice, who shall have the aggregate sum or “pool,” the game-is one of chance and the fact that the aggregate sum so put up is exchanged for a turkey and the transaction is denominated a “raffle” does not change the character of the game.</p> <p>2. In misdemeanors, all aiders, abettors and accessories are principals, and one who gets up a raffle or throws dice for those engaging in it is liable as a principal.</p> <p>3. Chapter 29, Acts of 1891, making it “unlawful for any person to play at any game of chance at which money, property or other thing of value is bet, whether samebe at stake or not,” has no application to the long prevailing custom of “shooting for beef” and other similar trials of skill, for which the participant pays for the “chanee” or privilege of shooting, there being no “chance” in the sense of the acts against gambling.</p> <p>4. Nor does such statute of 1891 prohibit the social diversions in which a hostess offers prizes for the most successful or least successful player at cards or other games, for, though the games are games of chanee, the players bet nothing.</p>

<p>Indictment for Gambling — Minor under 14 Years of Age Not Indiotable for Misdemeanor.</p> <p>1. An infant under fourteen years of age is not liable to criminal prosecution for an ordinary misdemeanor unless the facts exhibit brutal passion, the use of a deadly weapon, the infliction of maim, or other acts of like character; therefore,</p> <p>2. An infant under fourteen years of age, who played at a game of chance known as “shooting- craps,” well knowing the difference between right and wrong,'but who did not know the act was unlawful, is not indictable for gambling.</p>

<p>Indictment for Trespass — Praotiee—Suspension of Judgment on Payment of Oosts — Bight of Appeal.</p> <p>Where a defendant is found guilty by a justice of the peace of an offence of which the latter has final jurisdiction and an order is made without defendant’s consent that judgment be suspended upon payment of costs, the defendant is entitled, as a matter of right, to an appeal to the Superior Court for a trial de now and need not resort to the circuitous remedy of a reoordari.</p>

CRIMINAL action for violation of an ordinance of the town of G-oldsboro, tried on appeal from a judgment of the mayor, before JSiarhuek, Judge, and a jury, at the April Term of Wayne Superior Court: W. E. Burnett, a witness for the State, testified : “Defendant came to Agnes Cox’s place and asked ‘Where is the Professor’ (meaning witness) ‘doesn’t he board here?’ She answered yes..

INDICTMENT for disposing of mortgaged property, tried before StarluoTc, J., and a jury, at Spring Term, 1895, of Harnett Superior Court. The defendant was convicted and appealed. The facts sufficiently appear in tbe opinion of Associate Justice MontgoMery.

<p>Indictment for Disposing of Mortgaged Property — Intent —Evidence as to Collateral Offence to prove an Offence Charged.</p> <p>1. It is only when the transactions are so connected or contemporaneous as to form a continuing action that evidence of a distinct substantive and collateral offence will be admitted to prove the intent with which the offence charged was committed ; hence,</p> <p>2. On a trial of one charged with unlawfully disposing of an article of personal property covered by a chattel mortgage with intent to defeat the right of the mortgagee, evidence that, five months after the offence was committed, the defendant offered to dispose of another article covered by the same mortgage is inadmissible to prove the intent with which the offence was committed.</p>

INDICTMENT for malicious trespass, tried before Green, J., at Spring Term, 1895, of Oeange Superior Court.

<p>Indictment for Obstructing Highway — Highways—Title by Prescription — Dedication.</p> <p>1. Where the public claims title to the easement in a highway by user, the burden is upon the State, or its agencies, to show title by adverse possession.</p> <p>.2 The best evidence of user by the public of a highway is the fact that the proper authorities have appointed overseers and designated hands to work and assumed the responsibility of keeping it in repair.</p> <p>.3 The owner of land cannot, by executing a deed to the public conveying a right of way to a highway, compel the authorities to assume the burden of repairing it unless the properly constituted agents of the municipality accept it.</p> <p>4. In order to acquire title to a street as laid out by the owner of land in an addition to a town, there must be an acceptance before the owner revokes the offer. -</p> <p>5. Where an owner of property adjoining the city had offered to dedicate certain parts of it to the public as highways, by platting the same as an addition to such city, an entry upon one of such streets or highways by a street railway company, under a license from the city, after the owner had recalled his offer, cannot operate as an acceptance thereof by the city.</p> <p>6. Where one prosecuted for obstructing a highway is shown to have thrown open the street in question to the use of the public by platting the ground of which it had formed a part as an addition to the city which it adjoined, the fact that he refused, subsequently, to grant the city a right of way over the alleged street, after the city limits were extended, and that the city then proceeded to institute condemnation proceedings to acquire the same, sufficiently shows that defendant had revoked his offer.</p>

INDICTMENT for assault with intent to commit rape, tried before Starbuck, J., at Spring Term, 1895, of Granville Superior Court. The defendant was convicted and appealed. The facts appear in the opinion of Associate Justice AveRY.

<p>Indictment for Carrying Concealed Weapons — Intent.</p> <p>The criminal intent to constitute the offence of carrying concealed •weapons is the intent to carry the weapon concealed ; and where one charged with the offence had the right to carry it , openly hut concealed it about his person, it was incumbent upon him to satisfactorily explain why he did not carry it openly.</p>

Indictment for larceny, tried at August Term, 1895, of Moore Superior Court, before Hohe, Judge. Defendants were indicted in ordinary form for stealing money from one Harris in the one case, and from one Barbee in the other case. The evidence established that Barbee and Harris were waggoners in camp together in Moore county and were asleep by a camp fire, and at night their camp was assaulted by four or five negroes.

INDICTMENT for larceny, tried before Holce, J., and a jury, at August Term, 1895, of Mooes Superior Court. The defendants were convicted and appealed. The facts are stated in the opinion of Chief Justice Eaiboloth, and in the report of another case against same parties at this-Term. (See State v. Bynum, et al, ante).

INDICTMENT for intimidation of voters under Section 2715 of The Code, tried before Boyhin, J., and a jury, at November Term, 1894, of Geeene Superior Court. The defendant was convicted and appealed.

INDICTMENT for affray, tried before Graham, J., and a jury, at Spring Term, 1895, of G-R.ebne Superior court. The four defendants were tried jointly for the affray charged. Two witnesses were introduced on the behalf of the State. Henry. Gerganus, the first State’s witness called, testified substantially as follows : I am a cousin of the defendant Gerganus; am distantly related to him. This difficulty occurred at his house on the night of the 2d of last January.

INDICTMENT for perjury, tried before Robinson, J., and a jury, at July Term, 1895, of Columbus Superior Court. The defendant was convicted and moved in arrest of judgment because the bill did not charge the offence to have been feloniously committed.

This was an INDICTMENT for removing crops without notifying landlord, tried before Rohe, J., and a jury, at the Augirst Term, 1895, of the Superior Court of Moose county.

<p>This was a criminal actioN, tried before Norwood, J., at March Term, 1895, of the Superior Court of Moore county.</p> <p>The defendants, W. B. Jones and Susan Burt, were indicted at December Term, 1895, of said Superior Court for fornication and adultery, and upon their trial at March Term, 1895, the jury returned a verdict of “not guilty.” At the opening of said trial, counsel for the defendants gave notice in open court that, in case of an acquittal of the defendants, a motion would be made to mark as prosecutors, and tax with the costs, J. E. Phillips and T. H. B. Pierce, the said Phillips and Pierce being then present in court. The trial was completed on the 6th day of March, and on the same day, on motion of the defendants’ counsel, and without the instance of the solicitor, his Honor made the following order in said cause :</p> <p>“It is ordered by the court that T. H. B. Pierce and J. E. Phillips show cause, if any they have, on Thursday of the present Term (March 7th), why they should not be marled as prosecutors of record, and taxed with' the costs in this action.”</p> <p>Notice of this order was served on said Pierce and Phillips, and on return day (March 7th) they entered, by their' counsel, a special appearance, and moved to dismiss said motion, for that sufficient notice of said motion to mark as prosecutor and tax with the costs had not been given them ; and upon the further grounds that the motion must be made at the instance of the solicitor, or at least with his approval. The court overruled the motion to dismiss, and the said Phillips excepted in apt time.</p> <p>After hearing testimony, his Honor stated that he was convinced as to the controversy, from the testimony of all the witnesses in the case at the trial, the testimony of the witnesses for the State at this hearing, and the testimony of the respondent Phillips himself, and that he did not desire to hear testimony of common reports, begun possibly by respondent himself; and he refused to hear further testimony of witnesses offered by respondent to show facts and circumstances going to prove that said prosecution was required by the public interest. To all of which the respondent Phillips excepted.</p> <p>The counsel employed by the respondent Phillips to represent him in said motion, then addressed the Court in reference to the law and facts in said case and, before the first attorney had concluded, his Honor refused to hear them further, and stopped the argument. To all of which the respondent Phillips excepted.</p> <p>His Honor then proceeded to find the following facts from the evidence :</p> <p>1st. That the defendant, W. B. Jones, was indebted to the respondent, J. E. Phillips, in a sum exceeding six hundred dollars, and that said Phillips had brought an action for the recovery of the same, and had failed, to collect it.</p> <p>2nd. That said respondent, Phillips, had consulted his counsel, Mr. J. 0. Black, an attorney of this Court, as to whether it would be advisable for said respondent to prosecute said W. B. Jones for fornication and adultery with the defendant, Susan Burt, and had asked his said counsel if such a course would not be a help to respondent in the collection of his said debt; and that said J. 0. Black, his said counsel, advised said respondent not to take such a course, telling said respondent that if he did so he would injure his case, and said counsel protested against his instituting the prosecution.</p> <p>3rd. That afterwards said respondent, J. E. Phillips, did set on foot the prosecution of this case,' and for that purpose he consulted with the solicitor for the State, and induced the other respondent to go before the solicitor, and also before the grand jury, to find the bills of indictment.</p> <p>4th. That said respondent, J. E. Phillips, employed counsel to assist the solicitor in the trial of the cause.</p> <p>Upon these facts, his Honor adjudged ks follows:</p> <p>“It is, therefore, considered by the court that this prosecution was malicious, and that it was not required by the public interest; and it is ordered by the Court that said respondent, J. E. Phillips, be marked prosecutor on the record, and it is adjudged that he pay the costs of the cause, to be taxed by the clerk, including the fees of the defendants’ witnesses, and said respondent is ordered into the custody of the sheriff until said costs be paid.”</p> <p>To all of which the respondent, J. E.’Phillips, excepted and, for the errors assigned, appealed.</p>

INDICTMENT for manufacturing spirituous liquors witbin two miles of Oak Grove Churcb in Surry county, tried before Brown, J., and a jury, at Eall Term, 1895, of Sueey Superior Court. By consent the jury returned a special verdict as follows : “Oak Grove Church is near Mt. Airy, Surry county (which is an incorporated town), and is one mile outside corporate line.

INDICTMENT for selling spirituous liquors within the corporate limits of Mount Airy, an incorporated town in Surry county, tried before Brown, J., and a jury, at fall Term, 1895, of Surry Superior Court. By consent the jury returned a special verdict as follows: “Oak Grove Church is situated one mile beyond corporate limits of Mount Airy. The Male Academy is in Mount Airy.

Bastardy proceeding, tried de novo before Brown, J., and a jury, at July Term, 1895, of AlexaNder county, on appeal from a justice of the peace. The defendant was convicted and moved to quash the proceeding and in arrest of judgment upon the ground that the justice of the peace had no jurisdiction. The motion was refused and defendant appealed.

This was a CRIMINAL aotioN, tried before Poyhin, J., and a jury, at Fall Term, 1891, of Caldwell Superior Court, for the crime of fornication and adultery. There was evidence offered on the part of the State tending to prove the guilt of both the defendants. The defendants were not offered as witnesses, and did not testify in their own behalf at the trial of the cause.

INDICTMENT for incest, tried before Bryan, t/.,.and a jury, at Fall Term, 1895, of Catawba Superior Court. The defendants were convicted and appealed. The facts appear in the opinion of Chief Justice Fairoloth.

INDICTMENT for slandering an innocent woman, tried before Robinson, I, and a jury, at January Term, 1895, of Union Superior Court.

INDICTMENT for assault, tried before Meares, J., at June Term, 1895, of the Circuit Criminal Court of the Eastern District for MecKlenbubg county. The defendant was a school teacher and had whipped the prosecuting witness, a boy 13 years of age, with a hickory switch or sprout, inflicting injuries from which the boy suffered some weeks. Zeb Gardener testified : “I am about thirteen years old, and was going to school to Mr. Long last February.

INDICTMENT for barn burning, tried before Ewart, J., at the July, 1895, Term of the Criminal Circuit Court for Buncombe County. The- defendant was convicted and appealed. The facts appear in the opinion of Associate Justice Eueches.

The defendant was found guilty of embezzlement at November Term, 1894, of the Inferior Court of MadisoN county, and was sentenced to five years in the county jail of Madison, to be worked on the public roads, pursuant to the statutes in such cases provided.

INDICTMENT for forcible entry and detainer, tried at June' Term of the Criminal Court for Madison county, before Ewart, J., and a jury. The defendant was convicted and appealed.

INDICTMENT for selling intoxicating liquors without license, tried before Graham, J., and a jury, at Spring Term, 1895, of CheboKtse Superior Court. On trial one Akin testified for the State : “I sent for whiskey by the defendant. I told him to bring me some liquor. I forget bow much money I gave him but lie brought me a quart of whiskey. He would be gone two or three hours. I never asked him where he got it. I paid him nothing for bringing it.

INDICTMENT for murder, tried at Sprung Term, 1895, of Yadicin Superior Court, before Brown, The court instructed the jury, after reciting all the evidence, that, if they believed the evidence to be true beyond a reasonable doubt, the prisoner was guilty of murder in the first degree.

INDICTMENT for murder, tried before Timberlake, J., and a jury, at Spring Term, 1895, of Oataavba Superior Court. It appeared from the evidence that tbe deceased was part owner, as a stockholder and general superintendent, of Long Island Cotton Mills, and that he lived with his family about 250 yards from the mill, and that the prisoner Avas an employee at the mill, being superintendent of the spinning room.