Volume 118 — North Carolina Reports

<p>Trial — Issues— Verdict Directed by Judge — Instructions.</p> <p>1. Where, in the trial of an action for trespass on land, the sole enquiry was whether the land described in the complaint was the same as that involved in a former case b etween the same parties (the judgment in the former being pleaded as an estoppel in the pending action) and the witnesses for the plaintiff, as well as the defendant, testified that the land was identically the same, it was proper for the trial judge to instruct the jury that if they believed the evidence they should answer the issue “ Tes,” and, if they did not believe it, or had any doubt, to answer the issue “ No.”</p> <p>2. In civil actions, the trial judge may direct the jury’s verdict where there is no conflict of evidence, or where a party fails to make out his case or sustain his defense by evidence.</p>

Civil aotioN, heard on demurrer and complaint, before Graham,, P., at Fall Term, 1895, of ChowaN Superior Court. The complaint was as follows : The plaintiffs, complaining of defendants, allege: “1.

<p>Dealings between Father and Son — Burden of Proof— Fraud.</p> <p>1. "Whenever the fraudulent character of a deed depends upon a variety of facts and circumstances connected with the transaction, involving the motive and intent of the parties, the general question of fraud must he left to the jury with instructions as to what constitutes fraud in law,</p> <p>2. A father purchased property belonging to his son at a mortgage sale and left it in the possession of the son, who subsequently mortgaged it to plaintiff, who brought an action to recover the same, in which the father interpleaded; Held, that there was no presumption of fraud requiring the father to show by a preponderance of evidence that the transaction between himself and son was bona fide.</p>

This was an action heard before Mclver, J., at Fall Term, 1894, of PaMLICO Superior Court, against the-defendant W. S. Simmons, and 693 other defendants in separate actions, upon the same causes of action, under and by virtue of Chap. 287 of the Public Laws of 1893, Sec. 4, to vacate the said 694 entries in said chapter and section.

Civil aotioN, tried before Green, J., and a jury, at Fall Term,-1895, of PasquotaNK Superior Court. The plaintiff sought to recover damages for the condemnation and appropriation of a parcel of land alleged to belong to him,-for the purpose of a street, and alleged that by reason of the manner in which the street was laid out his adjoining land was rendered worthless and unsalable.

Civil actioN, for mandamus, &c., to enforce payment of plaintiff’s interest in a judgment rendered in favor of Commissioners of Currituck County v. Commissioners of Dare County, which belonged to the testator and others, tried at-term of CuRRItucK Superior Court, before Creen, J. There was no judgment in favor of plaintiff against the Commissioners of Dare and no evidence of assignment of the judgment or any interest therein to plaintiff by the Commissioners of Currituck,…

PetitioN to Rehear the case between the same parties decided at February Term, 1895, and reported in 116 N. C. Reports, at page 12. The petition was as follows: “ The petitioner, the plaintiff in the above-entitled action, respectfully presents the fob owing statement as a sufficient summary of the case, to illustrate what he humbly considers to be the erroneous ruling of the court. Summary of the Case.

Civil actioN, for the recovery of personal property in possession of the defendant and alleged to belong to the plaintiff’s intestate, Htried -before Green, J., and a jury, at Fall Term, 1895, of Pasquotank Superior Court. The issues submitted to the jury were, 1st, whether the plaintiff was the owner and entitled to the possession of the property described in the complaint; and, 2nd, as to the' value of the property.

Civil aotioN, brought by the plaintiff to recover damages for an injury alleged to have been caused by the defendant’s negligence, and tried at Fall Term, 1895, of WASHINGTON Superior Court, before Green, J., and a jury. The issues submitted were : (1). Was the plaintiff injured by the negligence of the defendant as alleged % (2). Did the alleged injury result from the negligence of the plaintiff’s fellow-servants ? (3).

Civil aotioN, to recover damages for breach of warranty, begun on 4th September, 1890, and tried before Boykin, J., at Fall Term, 1895, of Beetie Superior Court. On August the 1st, 1874, the intestate of defendant conveyed the land described in the complaint for valuable consideration, to the plaintiff with general warranty. His title was defective at the time of the conveyance. The plaintiffs learned of this defect more than ten years before the bringing of this action.

Civil acttoN, tried before Bryan, J., and a jury, at May Special Term, 1895, of Craven Superior Court. There was a verdict for the defendant, and from the judgment thereon plaintiff appealed. The facts appear in the opinion of Chief Justice Faircloth.

Civil ACTION, for the recovery of land, tried before Graham, J., at February Term, 1896, of Craves Superior Court.

Civil action, begun in OraveN County by the plaintiff, against the City ofNewbern, to enjoin defendant from Collecting taxes imposed by ordinance on plaintiff’s business and for damages. A restraining order was granted by Molver, J., upon the motion of plaintiff, the complaint being used as affidavit. The defendant tiled answer and the matter was heard before Starbuch, J., at Chambers, at Durham, on the 12th ¡September, 1895, by consent.

Ctvil aotioN, on appeal from Craven Superior Court. A motion was made in this Court that the case be remanded for a new trial on the ground of newly discovered testimony.

Civil action, heard before Mólver, J., at May Term, 1895, -of Ciíaven Superior Court. From the judgment rendered the Snow Steam Pump Company and Riter & Conly appealed. The history of the case and the facts pertinent to the appeal are fully stated in the opinion of Chief Justice Faieclotii.

Civil ACTION, by W. PI. Worth, State Treasurer, against-the Commissioners of Craven County, to recover money paid by the State for the benefit of the county, heard on Complaint and demurrer, before jBoyhin, J., at Fall Term, 1895, of Craven Superior Court. The complaint was as follows : “ The plaintiff alleges : “ £ I. That the relator, W. H. Worth, is the Treasurer of the State of North Carolina. “ ‘II.

Civil action, tried before Roy kin, J., at Fall Term, 1895, of Craven Superior Court.

Civil actior, to recover damages for malicious prosecution for forgery, tried before Boykin, J., and a jury, at Fall Term, 1895, of OraveN Superior Court. There was judgment for defendant and plaintiff appealed. The pertinent facts are stated in opinion of Associate Justice Claric.

<p>This was a civil actioN, to recover damages against the defendant for the injury set out in the complaint, tried before Boykin, J., and a jury, at the Fall Term, 1895, of the Superior Court of Craven county. Upon the trial the ■plaintiff introduced witnesses who testified as follows :</p> <p>Christianna F. Willis: “I lived on South Front street in 1893, on the north side of the street. About the 15th day of May the defendant hauled dirt and raised the sidewalk in front of my house as far west as the railroad. My lot was, and still is, above the sidewalk. The sidewalk was raised one and a half feet. They put pipes under the sidewalk. It went into the ditch. The pipe extended under the sidewalk into iny lot near and by the side of my •gate. At the point in my lot near and by the side of my gate an excavation was made for a sink-hole into which the water flowed and was carried by the pipes into the street. I was passing over the sink-hole, through the gate, to the pump on the street and fell in the sink-hole. The cover to it was not sufficient. The cover broke and I fell in. The defendant dug the hole there. I kept a boarding house, and sewed, etc., for a living. I was hurt in May, 1893. The sinews on my left side were strained, erysipelas followed and I was confined eight or ten days. Then I was not able to get around to do anything. The suffering was very severe. I was in good health before. After-wards people said they would not board with me because they were afraid I would over-exert myself. I did all my own work. I can stand a little while now, but soon get weak and stumble and fall. There is a dividing line between Mrs. Holland’s and my place. I knew the defendant’s servants had dug the sink-hole, though I did not know it was unsafe. Fell in in the morning. It was covered with plank. If I had thought it was unsafe, I would not have gone on it. I did not look to see what was over the sink-hole. Doctor Primrose attended me after the erysipelas set in. The hole had been dug several days and had been partially covered over. I had passed over it before several times. The town has fixed it since.”</p> <p>S. H. Lane : “'A fence divides my lot from the plaintiff’s. The city was doing work on the sidewalk in Hay,. 1893. The sidewalk was raised and the sewer pipe was. run from the different lots to the street,- attached under-the sidewalk. The sink-hole is on the line between the-plaintiff’s and my lot and about on the sidewalk. It is just inside the plaintiff’s gate. I do not know that it is-fifteen inches from the sidewalk. None of it is on the-sidewalk. Have not noticed carefully. It is under the dividing fence.”</p> <p>The defendant then offered the following evidence:</p> <p>William Ellis: “I am mayor of the defendant. In. 1893 was chairman of the' Committee on Streets- and-Pumps. The drain was put in- -to- drain the lofs. The-sink-hole is twelve inches square .and twelve inches deep.. Was right on a line with the two lots. A stone 22x28-inches was put over the hole. It was put there the same-day the hole was dug. It is there now. It was put-there two hours after it was dug. The sink-hole is .from-sixteen to eighteen inches from the sidewalk.”</p> <p>Mr. Williams: “ I did work for the city. Constructed the sink-hole. Hid it in one and three-quarter hours.. Put the rock over it at once. The rock was about twenty-inches wide. It took two or three of us to put it there. It has been there ever since. The sink-hole is eight or nine inches from the sidewalk. The sides of the sinkhole were bricked up and the hole covered with the rock.. We put a. stone over it.- We-got stone from the city hall.”’</p> <p>H. A. Brown : “ Am a civil engineer. I laid out the-plans for the work, and gave the hands the grade. I made this map. It is correct. The- sink-hole is fifteen or eighteen inches from the edge of the sidewalk. It is covered with the rock.” •</p> <p>S. H. Lane was recalled for the plaintiff, and testified as follows: “ I think they dug, the hole,, laid the pipes,. etc., and went off, and several days thereafter, came back and pnt a rock over it. It was covered with planks 'in the meantime.”</p> <p>Upon the close .of the evidence the defendant asked his Honor to charge the jury that, upon the evidence in this case as it appeared that the sink-hole, which it was alleged, was the cause of the injury to the plaintiff, was on' the plaintiff’s lot and not in the streets of the city, the plaintiff cannot recover damages.</p> <p>This request was refused. Exception by the defendant.</p> <p>After the argument, his Honor charged the jury among other things as follows: “That if the'plaintiff walked over the sink-hole in a reasonably proper and careful manner, she would not be guilty of contributory negligence. That the plaintiff was bound only to use ordinary care, and -was not bound 'to use more than ordinary care because she may have possibly discovered that the defendant had carelessly left planks over the place and exposed her to danger, for if she knew said parties were repairing the sidewalk in the yard on her premises, and as part of said construction excavated the drain opening upon her premises and had placed a plank over the same, she was not required to keep a constant look out for danger but was only required to use such care as a prudent person under the circumstances would have used in crossing‘the planks, and that if the jury believe from the testimony and find that the plaintiff was passing over the sink-hole as described, through the gate to the pump in the street, and that the sink-hole was covered with planks, and that the plaintiff had passed over the sameplaee several times before without suffering any injury, and that if the jury should believe and find that she had no reason to consider the place unsafe, and in passing ove' the plank she did so in a manner in which an ordinarily prudent, person would have passed over the same and had no notice of any defect in the covering, then she would not be guilty of contributory negligence, and you will answer that issue — No.”</p> <p>The defendant excepted to this portion of the charge assigning error in law in said portion of said charge as herein set fonh. His Honor also charged the jury that the ow er of private property or premises owed no duty to his guests whom he had invited on his premises, to keep his premises in safe condition. The defendant excepted to this part of the charge and assigned error in law.</p> <p>“ I. Eor that the said charge does not properly state the law.</p> <p>“II. For that the said charge was upon a proposition of law not involved in the controversy.”</p> <p>Yerdict for the plaintiff, and from the judgment thereon the defendant appealed.</p>

Civil ACTION, tried before Boykin, Jand.a jury, at Fall Term, 1895, of NorthamptoN Superior Court. There was. judgment for the plaintiff and defendants appealed. The. facts are stated in the opinion of Chief Justice Fair-CLOTH.

Civil aotioN, tried before Boykin, J., and a jury, at August Term, 1895, of Northampton Superior Ccrurt. The facts sufficiently appear in the opinion of Associate •Justice Avery. There was a verdict for plaintiff and from the judgment thereon the defendants, Hardy, trustee, ■and 0. W. Grandy and heirs, appealed.

This was a civil action, tried before Boyhin, J., at Fall Term, 1895, of Edgecombe Superior Court, to recover on a note for one thousand dollars alleged to-have been executed-on April 24th, 1889, by Pender & Gotten, in words and figures as follows : “ $1,000.00. April 24th, 1889. “ On demand we promise to pay to the order of Miss Ida Lee Bryan, one thousand dollars at eight per cent, interest, value received for money borrowed. Witness: W. N. Nicks.

<p>Action for Accounting — Reference—Appeal—Practice— Judgment of Cleric, Validity of.</p> <p>1. When a plea in bar is interposed to an action for accounting, a reference cannot be made until the plea has been finally determined.</p> <p>2. An appeal from a judgment sustaining a plea in bar is not premature, inasmuch as the plea puts in issue the cause of action and it would be useless to incur costs and delay if the plea is sustained.</p> <p>3. Where an executrix, on filing the final account of her testator as executor, moved for an allowance of commissions due her testator, and thereafter, on Dec. 4, 1894, her counsel and opposing counsel agreed to continue the matter to a date to be agreed upon between them, and no date was ever agreed upon, and the plaintiff, being dissatisfied with the account, began an action on February 9, ’95 to impeach it; and on 23rd February, ’95, the clerk, at instance of the counsel for the defendant executrix, notified the parties that he would, on March 4, ’95, resume the hearing of the motion for such allowance and requested information as to the items on which commissions were objected to, and plaintiff and his counsel failing to attend said hearing, the clerk entered judgment allowing the commissions; Held, that the suit begun by plaintiff on February 4, ’95, was notice to the clerk that the plaintiff would pursue his remedy under The Code, and the judgment of the clerk was void.</p>

ActioN by the plaintiff, administrator d. h. n. o. t. a. of 0. C. Farrar against Patrick Lane and wife and J. J. Martin, tried before Boykin, J.., at Fall Term, 1895, of Edgecojibe Superior Court. The facts appear in the opinion of Associate Justice Mohtgomery. From a judgment in favor of the plaintiff the defendant appealed.

Civil actioN, tried at Fall Terra, 1895, of Edgecombe Superior Court, before Boykin, J'., and a jury. The facts are stated in the opinion of Associate Justice Clark. For error in the instruction to the jury that defendant was entitled to a credit for the services rendered by his testator in obtaining the stock which the latter retained, the plaintiff appealed.

Civil aotioN, pending in Edgecombe Superior Court, beard by consent before Bryan, J., at Chambers, in New-bern, N. C., on December 19, 1895. The injunction was refused, and the restraining order theretofore issued by Brown, J., was dissolved, and plaintiff appealed. The facts appear in the opinion of Associate Justice Montgomery.

Civil actioN, for the recovery of a tract of land containing 350 acres, tried at Fall Term, 1895, of NorthamptoN Superior Court before Boyhin, J., and a jury. There was a verdict for the defendants and from the judgment thereon the plaintiff appealed. The facts are stated in the opinion of Chief Justice Eairoloth.

Civil ACTION, for the appointment of a receiver to collect the rents of lands leased to the plaintiff-trustee, by the defendant, J. M. B. Hunt, for the purpose of paying-certain debts therein mentioned, tried before Melver, J., and a jury, at September Term, 1895, of YaNOb Superior Court.

Civil aotioN, heard before Mclver, J., at Fall Term,. 1895, of YaNCe Superior Court, on motion by the defendant, the Old Dominion Building and Loan Association, for judgment against the plaintiff and T. T. Hielis, bis ■surety, for $130 and interest from October 10, 1892, pursuant, as alleged, to the opinion of the Supreme Court as reported in 116 N. C., 877.

Civil ACTION, of claim and delivery, for the recovery of a certain mortgage deed (and two notes secured thereby) executed by Henry Edmonds to I. A. Sugg, in July, 1877, and of a certain deed executed by I. A. Sugg to William Whitehead, in the year 1888, alleged to be unlawfully detained from the plaintiff, who was a purchaser of the land described in said deeds at execution sale against Edmonds, tried before Mclver, J., and a jury, at December Term, 1895, of Pitt Superior…

Civil actioN, heard before Boykin, J., at March Term, 1896, of Pitt Superior Court, on a case agreed as follows : “That on or about the 1st day of December, 1895, the plaintiffs contracted with the defendant to sell and convey to him in fee the lands described in the complaint, for the sum of $3,500.

Civil ACTION, beard before Coble, J., at Spring Term, 1895, of Nash Superior Court, on plaintiff’s exceptions to report of Thomas W. Battle, Referee, who found as a conclusion of law that the contract referred to in the opinion of Chief Justice Faibcloth was not a continuing one. The • exceptions were ' overruled, and from the judgment for defendant the plaintiff appealed.

Civil aotioN, tried, on appeal from the judgment of a justice of the peace, before Hoke, I, and a jury,, at October Special Term, 1895, of EeaNKliN Superior Court. There was judgment for the defendant Bailey (his co-defendant Parker making no defense), and plaintiff appealed. The facts appear in the opinion of Associate Justice Eueches.

<p>Civil action, beard on complaint and demurrer before Robinson, J., at January Term, 1896, of Franklin Superior Court. The complaint was as follows :</p> <p>“The plaintiff, complaining of the defendants herein, alleges:</p> <p>“ 1st. That on the 25th day of November, 1893, at and in the county of Nash, said State, the defendant, R. T. Collins, did forcibly, negligently, wilfully and maliciously shoot, beat, wound and ill-treat the plaintiff, W. A. Benton, to his damage fifteen hundred dollars.</p> <p>“ 2nd. That on the 26th day of September, 1894, the said Collins and wife, for the purpose of defrauding his creditors, and particularly for the purpose of hindering, delaying, defeating and defrauding this plaintiff of his damages for the cause stated above, executed the deed in trust.to S. E. Eure, which is hereto attached, marked 1 A.’</p> <p>“ 3rd. That, as will be seen from said deed in trust, the beneficiaries or alleged creditors named therein are the wife and children of the said Ruffin Collins, and this plaintiff avers that said debts are feigned, and they knew of the fraudulent intent of R. Y. Collins.</p> <p>“ 4th. That the plaintiff in this action procured an order of arrest for the defendant, R. Y. Collins, and the said Collins gave the undertaking required for his release in the sum of fifteen hundred dollars, with William Rich as surety; that in order to procure William Rich to become surety on said undertaking the said Mary J. Collins, her husband forcing her, so this plaintiff is informed and believes, executed to said William Rich a conveyance of any and all of her interests under the aforesaid deed in trust, to secure him against loss by paying any judgment which should be recovered against her husband.”</p> <p>“Wherefore this plaintiff demands judgment:</p> <p>“ 1st. For fifteen hundred dollars damage, and the costs of this action against R. Y. Collins.</p> <p>“ 2nd. That the said deed in trust be set aside, and that after allotting the homestead of the defendant, the residue shall be sold to pay the plaintiff’s recovery.</p> <p>“ 3rd. That if the defendant shall not be entitled to this, then that the conveyance made of Mary J. Collins’ interest under said deed to Win. Rich shall be declared to be security for the plaintiff’s recovery, and so applied.</p> <p>“ 4th. For such other and further relief as this plaintiff may be entitled to.”</p> <p>The defendants, except Eure, Trustee, demurred to the complaint of the plaintiff filed herein, assigning as grounds :</p> <p>“ 1st. That severa’ causes of action have been improperly joined :</p> <p>“ (a). For that the plaintiff joins with a demand to recover unliquidated damages for a cause of action arising out of a tort, viz., an alleged assault and battery on plaintiff by the defendant, R. Y. Collins, a demand to set aside, for alleged fraud, a deed executed by said R. Y. Collins to his co-defendant, Eure, for the benefit of his other co-defendant.</p> <p>“ (5). For that, with the two causes of action already stated, the plaintiff joins another demand to be subrogated to the rights of the surety of the defendant R. Y. Collins on the'arrest and bail proceeding, or to have the alleged deed of indemnity to said surety by said Collins declared security for the plaintiffs’ possible recovery against said defendant for the alleged assault and battery.”</p> <p>The demurrer was sustained with leave to amend complaint, and plaintiff appealed.</p>

'This was an issue of devisavit vel non, tried at January-Term, 1896, of FeáNklin Superior Court, before Robinson,. J. The jury rendered the following special verdict : “ 1. That Augustus Davis was one of the children of' Thomas Davis, and from him inherited about two hundred acres of land in Franklin county, North Carolina, and this was all the land he ever owned in said county, either by inheritance or otherwise.

Civil acttoN, on notes and for the foreclosure of a mortgage securing the same, tried before Goble, J., at Spring Term, 1895, of FraNKliN Superior Court. There was a verdict for the plaintiff and from a judgment thereon the defendants appealed. The facts are fully stated in the opinion of Associate Justice Furches.

Civil ACTION, beard at April Term, 1895, of ERANKLIN Superior Court, before Goble, A, on exceptions to the report T. ~W'. Biekett, referee. The purpose of the action was to obtain a construction of the will of Dr. E. A. Crudup, and to set aside a deed that had been executed by C. J. Crudup, the widow, and some of the children of the testator, in the attempt to convey a fee simple, &e. The report of the referee was as follows : “ Findings of Fact : “ 1.

Civil ACTION, tried before Mclver, J., at October Term, 1S95, of YaNCb Superior Court, on an appeal from the judgment of a justice of the peace.

Civil aotiqN, by Millhiser & Co. against W. H. Pleas-ants, to have the latter declared a trustee for the benefit •of creditors, and to recover from him, as such trustee, certain amounts claimed to be due plaintiffs, tried before Solee, J., and a jury, at-Term, 1895, of FbaNKLIN 'Superior Court.

PetitioN to Rehear case reported in 116 N. C. R., p. 165. Held: as stated in the head-note, that such aeon-veyance was valid and passed the equitable interest of the feme covert in the land.

<p>Civil aotioN, heard before Timberlahe, J., at Fall Term,, 1895, of HarNEtt Superior Court. There was judgment for the defendant and plaintiff appealed.</p>

<p>Laborer's Lien — Notice.</p> <p>Under Section 1784 of The Code requiring the claim for a laborer’s lien to be filed in detail, specifying the labor performed and the time thereof, plaintiff filed his claim as follows before a justice of the peace : “ J. 8. C., owner and possessor, to D. A. C., October 22, 1894. To 122-1 days of labor as sawyer at his saw mill on Jumping Bun Creek, from 1st October, 1898, to August 31, 1894, $127.24. (Signed) D. A. C., Claimant,” which was sworn to ; Held, the claim as filed was a reasonable and ■substantial compliance with the statute.</p>

Civil actioN, heard at Spring Term, 1896, of HarNett Superior Court, before Melver, J. There was a judgment for plaintiff and defendant appealed. The facts appear in the opinion of Associate Justice Furohes.

<p>This was a civil actioN, tried at April Term, 1895, of WayNE Superior Court, before Starbwck, J., and a jury.</p> <p>It was admitted that the plaintiff was entitled to judgment against the defendant, E. P. Howell. The following-issue was submitted to the jury :</p> <p>What is plaintiff entitled to recover of the defendant,. Ella D. Howell?</p> <p>It was in evidence that on the 15th day of May, 1893,. the plaintiff was a National Bank duly incorporated and engaged in the business of banking in the city of New. York, state of New York.</p> <p>It was further in evidence that the defendant Ella D. Howell was at the said time and is now a married woman and the wife of the defendant E. P. Howell and that she-together with her said husband then resided and has since continuously resided in Goldsboro, North Carolina.</p> <p>It was further in evidence that on the said 15th day May, 1893, the defendants E. P. Howell and Ella I). Howell, for a valuable consideration, executed and delivered to the plaintiff their'note in the following words and figures, to-wit:</p> <p>$1,500. May 15, 1893.</p> <p>Four months after date we promise to pay to the order of The Hanover National Bank of New York fifteen hundred dollars at Hanover National Bank, New York.</p> <p>Yalne received. (Sighed)</p> <p>R. P. TIowbll,</p> <p>Ella D. Howell.</p> <p>That the defendant, Ella D. Howell, signed the same as the surety of the said R. P. Howell ; that the said defendants signed the said note at their residence in Goldsboro, North Carolina, and it was sent to plaintiff, in the city of New York, to be discounted there, and that the same was •discounted by the plaintiff at its place of business in New York, and the amount of the same, less the discount, applied to the credit of the defendant, R. P. Howell.</p> <p>It was further in evidence that at the time of the execution of the said note the plaintiff knew that the defendant, Ella D. Howell, was a married woman, and tlml she executed the said note as surety, and that she resided in North Carolina. ■</p> <p>It was admitted that the statute in force in the state of New York, at the time of the signing of the said note by the defendant, Ella I). Howell, being Chapter 381 of the Laws of 1884, reads as follows:</p> <p>(The statute is set out in the opinion of Associate Justice Clark.)</p> <p>His Honor charged the jury that in no aspect of the evidence was the plaintiff entitled to recover against the defendant, Ella D. Howell, and directed them to answer the issue submitted, “ Nothing.”</p> <p>Plaintiff excepted. Yerdict in accordance with his Honor’s instructions, and from the judgment thereon plaintiff appealed.</p>

Tbis was a CONTROVERSY, submitted without action, and heard by his Honor, Judge James D. McToer, at Chambers, in Lillington, N. C., February 19, 1896, at the request and by the consent .of both parties to the controversy ; and from the judgment therein rendered by the judge the plaintiff appealed to the Supreme Court.

Civil aotioN, for the recovery of land, tried before Ool)le, J., and a jury, at October Term, 1895, of Waice Superior Court. There was a verdict for the plaintiff, and from the judgment thereon defendants appealed. The facts appear in the opinion of Associate Justice MoNtgomery.

B. .Burwell, (the assignor of plaintiff,) heard before Moloer, J., at Chambers, in Raleigh, during January Term, 1896, of Wake Superior Court. The injunction was refused and plaintiff appealed.

Civil actioN, beard before Starbuek, J., on complaint and demurrer, at April Term, Í895, of Yake Superior Court. Held: and actually held, every year, and that at each of said meetings, after the said bank became insolvent in 1889, or before, the defendants as directors wilfully and fraudulently made statements of the condition of the said bank, showing that the bank was solvent, that its capital stock was unimpaired .and that there was a surplus on…

Civil aotioN, heard before Hóke, J., at April Term, 1895, of New HaNOVer Superior Court, on complaint and demurrer. The demurrer was overruled and defendants appealed. The facts fully appear in the opinion of Associate Justice OlakK.

<p>MotioN of defendants to modify the language of the opinion in the cáse between same parties, ante.</p>

Civil Aotiok, heard before Norwood, J., at Spring Term, 1895, of RobesoN Superior Court, on complaint and demurrer. The demurrer was overruled and defendants appealed. The facts are substantially the same as those governing the cases of Solomon v. Bates, ante, and Tate, Treasurer, v. Bates, ante.

<p>Civil aotioN, tried on appeal from' a justice’s court before Starbuck, </., and a jury, at Fall Term, 1895, of Cas-well Superior Court. Before the jury was impanelled the defendant moved to dismiss the action for want of jurisdiction, the action having been instituted in a justice’s court to reform and correct an alleged error in calculation in a settlement between the parties. The complaint was as follows :</p> <p>His Honor reserved nis decision in the motion to dismiss and submitted an issue to the jury as follows : “ In what sum, if any, is defendant indebted to plaintiff 1 ” Ans., “ $29 and interest up to date.”</p> <p>His Honor then granted the plaintiff’s motion to dismiss and plaintiff appealed.</p>

This was a civil action, heard by his Honor, Henry R. JStarbue7&\ at Chambers, in Greensboro, the 13th day of July, 1895, upon an affidavit of the plaintiff to continue the restiaining order, theretofore granted, by Robinson, Judge, until the final hearing. Upon an affidavit made by the plaintiff, his Honor, W. B. CB.

Civil ACTION, tried before Greene, J., and a jury, at January Term, 1895, of GbaNville Superior Court. Plaintiff complained for goods sold and delivered to defendant in 1879 and 1882. Defendant denied purchasing tire goods and alleged they were delivered to him by plaintiff’s intestate, who was in failing circumstances, in order to avoid the payment of his debts. Defendant also pleaded statute of limitations. .

This was a Civil aotioN, tried at September Term, 1895 of OhatiiaM Superior Courts before StarbuoJc, J., and a julT- The action was commenced in the Superior Court of Moore county five days before W. B. Richardson died. It was, thereafter, removed to Chatham county. Since then Lewis Grimm has died and his heirs-at-law have been made parties defendant, and have answered. The original plaintiff, Richardson, died and Kelly was made plaintiff.

• Civil actioN, tried at February Term, 1895, of Guil-ford Superior Court, before Greene, J., and a jury. There was judgment for the defendants and plaintiffs appealed.

Civil aotioN, in the nature of a creditor’s bill, heard before Starbuck, J., on complaint and demurrer, at February Term, 1S’95, of Guilford Superior Court.

Civil ACTION, in damages for malicious arrest and prosecution for perjury, tried before Starbuch, N., and a jury at February Term, 1896, of Caswell County Superior Court.

Civil ACTION, tried before Q-reene, J., and a jury, at April Term, 1895, of Geanville Superior Couit.

Civil aotion, tried before Starbuck, J., and a jury, at November Term, 1895, of Granville Superior Court. The plaintiffs contended that the defendants, A. J. Hester, Louis Hester, John Hester, ~W. S. Adcock and J. S. Cunningham and others were partners at the time of the creation of the debts sued on and liable therefor. The.defendants denied the copartnership and the indebtedness.

<p>Husband and Wife — Abandonment of Wife by Husband— Wife Free Trader by Abandonment of Husband — Constitutionality of Statute.</p> <p>1. There is no constitutional inhibition on the power of the Legislature to declare where and how the wife may become a free trader, Section 6 of Article 10 being intended to protect instead of disabling- her.</p> <p>2. Section 1832 of The Code, which provides that a woman whose husband shall abandon her or shall maliciously turn her out of doors, shall be deemed a free trader so far as to be competent to contract, &c, and to convey her personal and real estate without the assent of her husband, is not unconstitutional. .</p>

PROCEEDING, begun by petition, before the Clerk of the ■■Superior Court of Orange County, by the heirs and next -of kin of Alexander Pratt, deceased, against the defendant, his administrator, for the purpose of having the defend- ■ ant increase his bond and to render an account and distribute the funds of the estate, heard by Starlmok, Jat Pali Term, 1895, of OkaNGE Superior Court, on appeal from the judgment of the Clerk sustaining the demurrer of ■defendant.

Civil actioN, tried before Sto-rbuoh, Jand a jury, at October Term, 1895, of Dubham Superior 'Court. The facts are sufficiently stated in the opinion of Associate Justice Fukohes. In deference to the opinion of his Honor, who intimated at the close of the testimony that the plaintiff could not recover, the plaintiff submitted to a non-suit and appealed.

Civil aotior, heard before Starbuck, J., at October Term, 1895, of DurhaM Superior Court, on,appeal from a judgment rendered by a justice of the peace. The facts appear in the opinion of Associate Justice Furohes. There was judgment for the plaintiff and defendant appealed.

<p>Illegal Consideration — Contracts—Gambling Contracts.</p> <p>Where one lends money to another to pay losses incurred in speculation in “futures” it may be recovered provided the lender was not connected directly or indirectly in the speculation.</p>

Civil ACTION, tried before StarbueJc, J., and a jury, at October Term, 1895, of DuitHAM Superior Court. The facts sufficiently appear in the opinion of Chief Justice EaiRclotii. There was judgment for the plaintiff and defendant appealed.

<p>MotioN to REINSTATE appeal, dismissed for failure to,, print the judgment below as apart of the record.</p>

Civil aotioN, tried before bis Honor, Judge Starbueh, a jury trial being waived, at Special Term, in January, 1896, of PersoN County Superior Court, upon an agreed state ■ of facts, which were, substantially, as follows : The plaintiff executed a deed to defendant in trust to secure a debt of $4,000, with power to sell upon default in payment of the bond at maturity, after advertising as prescribed in the deed, and upon sale to make title and apply the proceeds, “ first…

Civil ACTION, on a bond for title to land brought on the ground that the defendant devisee of the vendee had failed to pay the purchase-money, tried before StarbucJc, J1, and a jury, at August Term, 1895, of Caswell Superior Court. On the pleadings filed the following issues were tendered by the plaintiff: “First. Did the testator of defendant contract to purchase the land described in the complaint from the plaintiff for the sum of $210 ? Second.

<p>Civil aotioN, commenced in the Superior Court of Durham County, for an injunction. There was a restraining order issued, and the case was heard by Graham, Judge, at Chambers, in Oxford, Geanvillb County, on July 29, 1896, on plaintiff’s motion for an injunction to the final hearing. The summons issued July 1, 1895. The plaintiff alleged that on December 29, 1893, the defendants, A1 Eairbrother and M. H. Eairbrother, being then the owners and editors of the Durham Daily Globe and the Durham Weekly Globe, and of other property connected with and necessary to their publication, and being then engaged in publishing the same, made and executed with John Wilber Jenkins the contract and bill of sale, a copy of which is as follows:</p> <p>Eor value received, three thousand and five hundred dollars, this day to ns in hand paid, the receipt of which is hereby fully acknowledged, ,we, A1 Eairbrother and Mrs. M. H. Eairbrother, have bargained and sold, and do by these presents, bargain, sell, transfer, assign, set over, deliver and convey unto John Wilber Jenkins, absolutely and free from all claims by us, The Durham Daily Globe and The Durham Weekly Globe, newspapers now published in said county and state, and also all type, printing presses, racks, imposing stones, subscription boobs and accounts thereon, except those which have already been earned and are now due, one iron safe, (Cary,) one cali-graph, desks, tables, chairs, inks, paper and all material now bn hand, January 1, 1894, the subscription list of said newspapers and all office furniture and materials now used by us in conducting said newspapers, and all now contained in the office of said newspapers, on the northwest corner of Main and Church streets in the town of Durham, and the good will of said newspapers and the business of conducting the same. And we hereby agree with said purchasers -and his assigns, each for, himself and herself, that for a period of ten years from and after Januai'y, 1894, said Al Fair-brother shall not edit, print or conduct a newspaper or magazine, nor be in anywise connected with one printed anywhere in the State of North Carolina, and that for a like period Mrs. M. II. Fairbrother shall not edit, print or conduct a newspaper or magazine, nor be in anywise connected with one anywhere in the County of Durham, said State, without the consent of said purchaser or his assigns..</p> <p>And we hereby warrant that all of said above-mentioned property is free and clear from all encumbrances of any kind, whatsoever, and that we have good right to convey the same as we have done.</p> <p>Witness our hands and seals this 29 th day of December, 1893.</p> <p>An Fairbrother, [L. S.]</p> <p>M. II. Fairbrother. [L. S.]</p> <p>That the price paid for the property mentioned in the contract was far greater than the value of the tangible property, and the inducements for paying so great a'price was the agreement of the defendants not to edit, print or conduct a newspaper, &e., nor to be in any way connected with one, in Durham county.</p> <p>That on December 30, 1893, John Wilber Jenkins transferred the contract with defendants and the property therein described to G-eo. W. Watts ; Watts transferred a half interest in same to B. N. Duke on July 25, 1894, and Watts and Duke loaned the property to plaintiff, on July 29,1895.</p> <p>That the said defendants had purchased or contracted to purchase the Durham Recorder, a newspaper published in the town and County of Durham, and the State of North Carolina, and had assumed the charge and management thereof, and would, on July 1, 1895, edit, print and conduct a newspaper or magazine in the County of Durham or be in some way connected with a newspaper or magazine published in said County of Durham without the consent obtained of the plaintiff or purchaser, John Wilber Jenkins, or of his assigns, contrary to and in violation of the terms and agreements of the contract.</p> <p>The defendant, Al Fairbrother, admitted the execution of the contract and the receipt of the consideration therein recited, and set up as defenses that the publication of the newspapers referred to in the contract had been in effect abandoned by John Wilber Jenkins and his assigns before defendant entered into any arrangements for taking charge of and managing the publication of a newspaper in Durham.</p> <p>That plaintiff knew of defendant’s intention to connect himself with a newspaper iu Durham before he, plaintiff, took any lease from Watts and Duke.</p> <p>That Geo. W. Watts was hostile in feelings towards defendant prior to the execution of the contract between defendants and Jenkins, and procured Jenkins to enter into the contract with defendants. That this was done with the fraudulent intent to deceive defendants by representing that Jenkins was buying for himself, whereas in fact he was acting as the agent of Watts. That both Watts and Jenkins knew at the time that defendants would not, if they knew it, have entertained any proposition coming from Watts.</p> <p>Defendant set up the further defenses that the contract was void (1) because it tended to restrict the freedom of the press ; (2) because it was in restraint of trade and contrary to public policy.</p> <p>The order granted by the judge below is as follows:</p> <p>“ This cause coining on to be heard at Chambers, at Oxford, on July 29, 1895, and having been heard Upon,, affidavits, pleadings and exhibits filed, including the affidavit of B. N. Duke, filed by permission of the court, the court doth consider and adjudge that the temporary restraining order heretofore granted against Mrs. M. H. Fairbrother be and the same is hereby vacated for the reason that she disclaims by her answer any intention on her part to violate any of the terms of the contract executed by her and said A1 Fairbrother Dec. 29,1893, a copy of which is annexed to the complaint; she will recover her costs and disbursenients made herein. The court doth further consider and adjudge that upon the plaintiff executing a justified bond in the sum of fifteen hundred dollars, conditioned as required by law, with sureties to be approved by the clerk of the superior court of Durham county, the said defendant, A1 Fairbrother, be and he is hereby restrained, enjoined and forbidden to edit, print or be in any way connected with any newspaper or magazine published in the State of North Carolina, until the final hearing of this cause, and this cause is retained for further orders.”</p> <p>The pleadings, affidavits and exhibits were very volu-ininous, but the foregoing synopsis is deemed sufficient fora comprehension of the facts which form the basis of the opinion of the Court.</p> <p>The defendant, Al Fairbrother, appealed.</p>

PetitipN of defendants to rehear case between same parties reported in 116 N. 0., 384. The petition to rehear was accompanied by the certificate of Hon. M. Y. Lanier, of Oxford, which was as follows : u This is to certify that, by request of defendant’s counsel, in the case of W. 0.

<p>Partition — Jurisdiction—Devisee under Will — Condition Precedent— Wrongfully Preventing Performance.</p> <p>1. Where there has been an ouster, or where the defendant controverts the plaintiff’s title, thereby admitting ouster, a co-tenant may bring his action for partition to Term instead of before the clerk.</p> <p>2. Where a testater gave his plantation to his widow for life, remainder to his nephew, whom he requested to remain with her until her death, and directed that if two servants remained with his wife and nephew until the wife’s death they should each have 50 acres of land, and the widow and nephew removed from the land to town, before her death, and one of the servants refused to accompany them to serve for wages ; Held, that such refusal was not a failure to perform the condition precedent to his right to the 50 acres.</p> <p>3. One who prevents the performance of a condition, or makes it impossible by his own act, will not be permitted to take advantage of the non-performance ; hence</p> <p>4. Where plaintiff, to whom a portion of a tract of land was devised upon condition that he should remain with the widow of the testator until her death, was wrongfully ejected from the land by the agent of the widow, (who was the devisee of the land of which the plaintiff’s was a part,) the plaintiff’s estate upon the widow’s dea.th cannot be defeated on the ground that the condition was not performed by plaintiff’s not remaining on the plantation until the widow’s death.</p>

Civil, ACTION, begun on March 11, 1895, by the plaintiff' against the defendant, a Virginia corporation, to recover for usurious interest paid defendant on a loan of money. The action was tried before Starbuok, J., at October Term,. 1895, of Durham Superior Co-urt.

Civil aotion, heard on appeal from a judgment of a justice of the peace, before Starhucli, J., at January, 1896, Special Term of PeksoN Superior Court. The action was on a note signed by R. E. Couch as principal and J. T. Walker and C. B. Brooks as sureties. The defendant Conch did not appeal from the justice’s judgment.

Civil action-, heard before Starbuck, J., at January Special Term, 1896, of PeiísoN Superior Court. The material facts, as found by his Honor below, are stated in the opinion of Associate Justice Eueciies. His Honor, upon the facts, found the following as conclusions of law : “ 1.

AotioN for damages for unlawful detention in guard house of defendant, tried before StarbucJc, J., at October Term, 1895, of Durham Superior Court. The issues submitted were: “1. Was plaintiff injured by tlie negligence of the defendant? “ 2.

<p>Civil actioN, brought by plaintiff to recover damages-for being violently evicted from a meat stall in the market house of defendant Towm of Durham by its oofficers under the orders of its governing authorities. The case was tried before Starbuek, Judge, at October Term, 1895, of DuriiaM Superior Court.</p> <p>The plaintiffs alleged.</p> <p>II. That the town of Durham owns a market house in said town and rents the stalls to various persons for various purposes, and while acting in its ministerial and corporate character, managed and maintained the said market-house and the stalls therein, for its own benefit and profits, for at least eight or ten years before and at the time of the acts hereinafter complained of.</p> <p>IY. That Section Three of Chapter Ten of the ordinances of the town of Durham, provides as follows : “ The clerk of the market under the supervision of the committee on markets, shall annually, in the last week of April in each year, rent out publicly the fish and meat stalls and vegetable benches or stands in the market house for one year from the first day of May ensuing, giving due notice of the time of renting by posters in the market house.</p> <p>“ All renters shall pay monthly, in advance, their respective rents to the tax collector of the town, and it shall be the duty of the clerk of the market to have vacated any stall or bench when the occupant fails to comply with the' provisions of this section, but no person shall occupy a meat stall or bench at the market until he obtain a license from the Board of Commissioners, first having satisfied the board as to his character and capacity ; and such license may be revoked at the pleasure of the board for a violation of any of the criminal laws of the State, or of the ordinances of the town, or for any other cause which the-boaid may deem sufficient.”</p> <p>V. That by virtue of the public renting of said stalls as mentioned in said section-, the plaintiff on or about the last week in April, 1887, rented Stall No. 2 at the price of thirteen dollars per month, which was the last annual renting under said action, and received a license as directed by said 'section, and became a tenant of said town, and subsequently, to-wit: on or about the first day of April, 1894, purchased the business of one M. Oppenheimer, who was-occupying Stall No. 3, with the assent of the town ; and with the assent of the governing authorities of said town,, this plaintiff took possession of said stall, and continued to-occupy said stalls and pay rent for the same to the town as required by said section.</p> <p>YI. That for several years prior to August 10, 1894, there had been no annual public renting as prescribed by said ordinances, but plaintiff continued, with the consent of said town, to occupy said stall and to hold over from year to year u til the 10th day of August, 1894, without having his license revoked, and all the while paying the rent to said town.</p> <p>VII. That at a regular meeting of the Board of Commissioners of said town, held July 3, 1894, on motion of Commissioner Jordan, the clerk of the market was directed to advertise that on the first day of August, 1894, at. 10 o’clock a. m., he will rent the fish and meat stalls and "vegetable benches or stands at the town market house, for the remainder of the year ending April 30, 1895, as there was no annual renting on the last week of A.pril, 1894, as ■required by the Town Ordinance, Chapter 10, Section 3.</p> <p>That in pursuance of said resolution the following notice was issued, to-wit:</p> <p>“ Notice ! By order of the Board of Commissioners of the Town of Durham, at their regular session for the month of ■July, 1894, directing that since there was no annual renting of the fish and meat stalls and vegetable benches or ■stands at the town market house in the last week in April, 1894, as required by the Town Ordinances, Chapter 10, Section 3, the said stalls and benches or stands should be rented at public auction on August 1, 1894, for the remainder of the year ending April 30, 1895, I will on August 1, 1894, at 10 o’clock a. m., offer at the town market house, the said stalls and benches or stands in the town market house, at public auction, for the remainder of the year ending April 30, 1895.</p> <p>“ J. T. GtddeNS, Market Clerk.”</p> <p>Durham, N. C., July 10, 1894.</p> <p>Town Ordinance Chapter 10, Section 3 : “ No person shall occupy a meat stall or bench at the market house until ho obtains a license from the Board of Commissioners, first having satisfied the board as to his character and capacity.” At the time and place mentioned in said notice there was a pretended renting of said stalls Nos. 2 and 3, before which, and early on the morning of August 1, 1894, this plaintiff tendered the sum of $24 dollars, the rent of said stalls, as he had heretofore done, and demanded receipt as heretofore given by said town, but which the said town refused to accept; and against the protest of this plaintiff, Stall No. 2 was bid off by J. W. Jones at $24 per month, and Stall No. 3 was bid off by C. M. Hern'don at $26 dollars per month, this plaintiff giving notice that he was entitled to the possession of said stalls until April 30, 1895.</p> <p>YIII. At a regular meeting of the Board of Commissioners of the town of Durham, held August 7, 1894, on. motion of Commissioner Walker, it was ordered that all-parties to whom market stalls were rented on August 1,. 1894, -be granted license to conduct business at said man ket house stall until April 30, 1895.</p> <p>On motion of Commissioner Bass, it was ordered that the Chief of Police and Market Clerk be directed to place-parties who rented market stalls on August, 1894, in. possession of same by August 10, 1894. The following-notice was handed to this plaintiff:</p> <p>“ Durham, N. 0., August 9, 1894.</p> <p>“Dear Sir: In pursuance of an order made by the-Board of Commissioners of the town of Durham at its regular monthly meeting, Tuesday, August 7,1894, you are-hereby notified that possession of the stalls of the town-market house now occupied by you is hereby demanded of' you by the town of Durham, and you are hereby notified, that yon must remove your effects from the same'by 11 o’clock a. m. on Friday, August 10, 1894; otherwise the-town of Durham will proceed to take such steps to accomplish same asare authorized by law. Yours truly,</p> <p>“ JNO. W. CARLTON,</p> <p>“ Ch’m’n Market Committee.”</p> <p>That said Carlton was at time of said notice, and for thirty days thereafter, a Commissioner of said- town, and chairman of the Market Committee.</p> <p>IX. That no other notice was served on plaintiff, and! no suit brought against plaintiff to- ej.ect him from said! stalls, but on August 10, 1894, W. A. Williams, Chief of Police, and J. T. Giddens, Olerk of the Market, together with W. W. Austin, Horace Brown, J. S Scarlett and F. D. Scruggs, the four last named being and acting as regular policemen of the town of Durham, and acting under .authority and by direction of the Board of Commissioners ■of said town, and especially by the direction of John W. ■Carlton, came to said stalls in said market house, and with force and arms at and in said stalls in said market house and in said state, county and town, unlawfully and wilfully did strike and beat the plaintiff, he, the said plaintiff, not being guilty of any of the violation of laws of the state or the ordinances of the town of Durham, and ■said plaintiff being then and there in the quiet possession .and occupancy of said stalls, and ready, willing and able, then and there, and at all times before then to pay the monthly rents for said stalls to said town, as he had been .accustomed and allowed by the town theretofore to do. And the said policemen and clerk, under the direction and advice of said commissioners of said town and J. W. Carlton,-proceeded to and did eject this plaintiff from said ■stalls, subjecting him to great violence and many indigni ties, conveying plaintiff by violence bodily from said stalls, .and dropping him on-floor of said house; and did then and there unlawfully and wilfully pile large quantities of fresh ■meat, besides other property of this plaintiff, on the floor ■ of said house, under the feet of those coming in and going ■ out of said house; and did ruin and destroy large quantities of meat belonging to plaintiff, so that same became nearly or quite worthless, and by reason of all of which •said unlawful acts, and by depriving him of his right to -said stall for the remainder of said term, this plaintiff was greatly endamaged, to-wit: in the sum of fifteen hundred ■ dollars.</p> <p>X. That the plaintiff, before bringing this action, pre-' seated his claim to the lawful municipal authorities, to be .audited aud allowed, and they refused to allow the same •or any part thereof, but disallowed it.</p> <p>Wherefore plaintiff demands judgment that he recover •of the defendants the sum of fifteen hundred dollars, for the costs and such other and further relief as to the court-may seem just, and to which the plaintiff may be entitled.</p> <p> A nswer of the Town of D%vrham : </p> <p>The defendant, the Town of Durham, answering the •complaint of the plaintiff, says :</p> <p>“ 1. That the allegations of Article I. of the complaint •are admitted.</p> <p>“ II. That the allegations of Article II. are admitted.</p> <p>“ III. That the allegations of Article III. are admitted.</p> <p>“ IV. That the allegations of Article IV. are admitted.</p> <p>“ V. That the allegations of Article V. of the complaint are admitted, except the statement therein contained, that the plaintiff became a tenant of said town, which statement is hereby expressly denied, and except the further ■statements therein contained that the plaintiff was occupying Stall No. 3, with the assent of the governing authorities of said town, and continued to occupy Stalls Nos. 2 and •3, and pay rent for the same to the town, as required by the Section 3 of Chapter 10 of the ordinances of said town, which said statements are likewise denied.</p> <p>“ VI. That it is admitted that the plaintiff occupied the ¡said stalls until August 10,1894, and that he paid his rents to said town ; it is likewise admitted that no annual public reutings had been had as prescribed by said ordinances ; but any suggestion therein contained that plaintiff became :a tenant of said town, or that he ha 1 any ai.nhority acquired from prior occupancy to hold from year to year is denied ; and it is likewise denied that his license was in force at said time.</p> <p>“ YII. That the allegations of Article YII. are admitted, except the statement therein contained that on the first day of August, 1894, there was a pretended renting of Stalls Nos. 2- and 3, and as. to said statement, said defendant states that said renting was actual and bona fide.</p> <p>“YIII. The allegations of Article YIII. are admitted.</p> <p>“ IX. That the allegations of Article IX. of the complaint are denied except as follows, viz. It is admitted that no other notice than that set out in said Article YIII. was served on the plaintiff, and that no suit was brought against said plaintiff to eject him from said stalls; it is likewise admitted that the parties entitled to the use of stalls Nos. 2 and 3, by virtue of their public renting thereof on August 1st,.1894, as aforesaid, were put in quiet possession of said stalls on August 10,1894 ; it is likewise admitted that certain meat belonging to the plaintiffs, was on said day removed from said stalls and placed in a pile on the marble slabs of plaintiff which were used for said purpose, and had been removed from said stalls into the corridors of the market house ; but the defendant expressly denies that the plaintiff was stricken or beaten, or subjected to great violence or to many indignities as vaguely set forth in said paragraph, or that he was carried bodily by violence from said stalls and dropped on the floor of said house as therein alleged ; it is likewise expressly denied that plaintiff was in quiet possession of and occupancy of said stalls, and that plaintiff was not guilty of any violation of the laws of this state or of the ordinances of the town of Durham, or that large quantities of plaintiff’s fresh meat, besides other property of plaintiff, were unlawfully and wilfully piled on the floor of said house, under the feet of those coming in and going out of said house, or that large quantities of meat belonging to plaintiff were ruined and destroyed so that the same became nearly or quite worthless, or that he was deprived of his right to said stalls for the remainder of said term, or that any unlawful acts were done to the plaintiff or that the plainiiff was greatly damaged or that he was endamaged at all: and all the allegations of said Article IX. of plaintiff’s complaint not herein before admitted or denied, are hereby expressly denied. /</p> <p>“ X. That Article X. is admitted.”</p> <p>And by way of further answer and defense, defendant says :</p> <p>“ 1. That the corporate officers of the Town of Durham have heretofore been elected annually, on the first Monday in May, and that the first Monday of May, 1894, fell on the fifth day of May.</p> <p>“ 2. That on the 6th day of May, 1894, the newly elected Mayor and Commissioners of said town took 'the oath of-office and entered upon the discharge of their corporate duties.</p> <p>“ 8. That it was then too late to give effect to the provisions of Chapter 10, Section 3, of the ordinances of said town, and to rent the stalls in the market house at public auction, in the last week of April, 1894, as therein provided.</p> <p>“ 4. That said officers finding that the said ordinance had been violated for some years, then past, undertook as far as they could, to comply with the law by having a public renting of stalls, including Nos. 2 and 3. That having accordingly, after due notice of same, and after fully complying with the laws of said town, the two stalls were rented at public auction on August 1, 1894.</p> <p>“ 5. That during the year 1894, the plaintiff was in dccu-pancy of Stalls Nos. 2 and 3 as a verbal licensee on sufferance of the defendant, and that said license was revoked prior to August 10, 1894, by defendant.</p> <p>“ 6. That the plaintiff was never the tenant of the defendant; that he had no vested interest in, or posession of Stalls Nos. 2 and 3, but at most was merely the licensee thereof, and not having rented said stalls at public auction his occupancy of the same was merely permissive and at the will of the defendant.</p> <p>“ 7. That said market-house was at all times during the year 1894 in the possession of the defendant and under the care, control and keeping of the defendant’s agents and servants. That the plaintiff was subject to all the rules and regulations of said market, and that one of said zules was, that the plaintiff should rent his stalls publicly of the defendant, during the last week in April of ■each year ; and that this rule or ordinance of the town had been systematically violated by the plaintiff for seven years, preceding the first day of May, 1894 ; and that said ordinance likewise provides that the board may revoke ■at its pleasure any license for any cause which the board may deem sufficient, and that said board, for sufficient cause, prior to August 10, 1894, revoked said license.</p> <p>“ 8. That the defendant is not and ought not to be answerable for the torts and assaults, alleged by the plaintiff to have been committed in removing him from said stalls, by person other than this defendant.</p> <p>“ 9. That in affecting said removal, no injury whatever was done plaintiff in mind, body or estate; no force was used; no threat was made; no indignities offered, but on the contrary the greatest care was taken to protect plaintiff in his, person and property, and the Chief of Police Williams, and the Market Clerk Giddens, appointed under the resolution of Commissioner Bass, were careful, capable, painstaking men, who knew the duties and responsibilities' of their positions. As soon as plaintiff discovered that the said stalls must be vacated, he quit the same of his own head, and that no violence or injury of any kind was done him.</p> <p>“ That plaintiff’s fresh meat was carefully taken from said stalls and placed upon marble slabs used theretofore by plaintiff for said purpose, which slabs were carefully arranged and placed in the corridors of the Market House, and that since said time, and almost immediately, plaintiff complied with, the law and rented of the defendant a stall in said MarkehHouse, obtaining a valid license so to do, and hath ever beeu since said time using and occupying said stall in compliance witli the laws of the town and State.</p> <p>“ Wherefore, having fully answered, the defendant prays that it must go hence without day, and recover of plaintiff its costs to be taxed by the clerk of this court.”</p> <p>Both parties appealed from the judgment rendered.</p>

RetitioN for partition of land, beard (on appeal from the Clerk) at Special Term, December, 1895, Jones Superior Court, before Graham,, J. The facts are stated in the opinion.

This was a civil aotioN, tried before Hoke, Judge, and a jury, at January Term, 1895, of Superior Court of New HaNOver County. There were two causes of action set out in the complaint —one for trespass for wrongful removal, and the second of negligence in case the removal turned out tq be by authority and permission.

<p>This was a Civil action, tried before Greene, J., and a jury, at the Eall Term, 1895, of the Superior Court of New HaNovee County.</p> <p>The plaintiffs alleged that one Lawrence Brown, late of the city of Wilmington, county and state aforesaid, died on the 22d day of April, A. D. 1892, intestate, and that they were his only heirs-at-law.</p> <p>That prior to his death, to-wi t: on the 14th day of January, A. D. 1892, the said Lawrence Brown executed to the defendant a deed, conveying certain real estate therein described and fully set out in the complaint, and that on said day the said- Lawrence Brown transferred and set over to the defendant all of his personal property without any consideration. That at the time of the execution of the said deed and transfer of the said personal property, the said Lawrence Brown was mentally incompetent to make a deed, or any other disposition of his property.</p> <p>And that the execution of said deed and the transfer of the said personal property was procured by undue influence, exerted by the defendant and other persons named in the complaint, over the mind and will of the said Lawrence Brown.</p> <p>The defendant admitted the execution of the deed and transfer of the personal property, and denied that the said Lawrence Brown was mentally incompetent to execute said deed or make a valid transfer of the personalproperty, or that the same was procured by any undue influence.</p> <p>The following issues were submitted to the jury :</p> <p>“First. Are the plaintiffs the heirs-at-law of Lawrence Brown ?</p> <p>“Second. Are the plaintiffs the only heirs-at-law of Lawrence Brown?</p> <p>“Third. At the time of the execution of the deed to the defendant, was Lawrence Brown of sound mind and disposing memory ?</p> <p>“Fourth. Wasthesaid deed obtained by undue influence exercised by the defendant Leo Haid, Daniel O’Connor, Rev. Father Deunen or any layman of the Catholic Church or any of them ?”</p> <p>There was much testimony bearing upon the third issue. Among the instructions prayed for by the plaintiff and tendered by the court on the third issue was the following :</p> <p>“ That while old age itself or physical infirmity or mental weakness is not sufficient by itself to render a man incompetent to make a deed or execute a contract, yet old age, physical and mental weakness raise a strong presumption of incompetency, and if the jury believe that at the time this deed was executed Lawrence Brown was 64 years of age, was suffering from physical disease which had developed four years previous thereto, which had grown in strength and virulence up to the time of the execution of this deed, and from the effect of which he died within three'months thereafter, and that this old age and physcal infirmity had weakened his mind, then, this deed and other disposition of his property being a bounty and made without consideration, there arises the presumption of law that he was incompetent to execute said deed or make said contract, and the burden of proof is upon the defendant to satisfy the jury that he was competent, and if the jury are not so satisfied, then the deed and contract is null and void and the jury must find the third issue £ No.’ ” Defendant excepted.</p> <p>The jury responded to the first issue “Yes;” to the second issue “Yes to the third issue “No and under the direction of the court made no response to the fourth issue.</p> <p>- The court refused defendant’s motion for a new trial and he appealed from the judgment rendered for plaintiff.</p>

<p>Civil actioN, heard by Starbudk, Judge, in March, 1896, at Chambers, in Wilmington, New HaNOvBR County, upon a notice to show cause why a restraining order should not be granted. The motion was heard upon the complaint and demurrer thereto.</p> <p>The action was brought to enjoin the publication by the defendant, as lieutenant-commander, of an order from the Governor, as Commander-in-Chief of the militia, revoking a commission held by the plaintiff, as commander of the naval battalion of the State guard, the plaintiff denying the power of the Governor to issue such order without trial before a court-martial.</p> <p>Defendant demurred to the complaint, for that it does not state facts sufficient to constitute a cause of action : (1) Because the Governor had in law, as Commander-in-Chief, the power to revoke plaintiff’s commission; (2) because the action is not a proper one for injunction, for if the order was void the plaintiff is still in office, but if ousted he could try his title by an action in the nature of a quo warranto.</p> <p>The demurrer was sustained, tire motion for a restraining order denied, and plaintiff appealed.</p>

This is an action eoe debt by the plaintiff, Junius E. Sutton, administrator of Thomas Sutton, deceased, against John D. Walters, Alex. Sutton and Shade Wooten & Company, tried before his Honor, Jxidge A. W. Graham, and a jury, at the Special Term of the Superior Court for Lenoijr County, held in January, 1896. The plaintiff declared on a note under seal executed by the defendants, John D. Walters and Alex.

<p>Civil aotioN, tried before Graham, P, at December Special Term, 1895, of GbeeNE Superior Court.</p> <p>There was a verdict and judgment in favor of the plaintiff. Defendants appealed.</p> <p>The facts appear in the opinion.</p>

Civil aotioN, tried before Graham, Judge, at the Eall Term, 1895, of Sampson Superior Court. The plaintiff owed a debt, secured by mortgage on land, 'to one W. A. Dunn, receiver, &c., and applied to the defendant to take up said mortgage debt.

Civil action, tried before Graham, J., and a jury, at Fall Term, 1895, of Sampson Superior Court. A. A. McKoy died November 11, 1885, seized of real and persona] property. On November 13, 1885, L. A. McKoy qualified as executrix under his last will and testament, and on the 19th made advertisement for creditors.

Civil ACTION, heard before Graham, J., at Eall Term, 1895, of JoNES Superior Court, on the pleadings and exceptions to the report of a referee. A replication to the answer was filed but was not verified. His Honor overruled the exceptions to the report of referee, and gave judgment for the plaintiff, and defendant appealed.

<p>Mortgage — Power of Sale — Compliance with Power— Trial.</p> <p>1. The attempted sale of land under a mortgage by the heir of the mortgagee is without authority and conveys no estate, though it seems that the purchaser at such sale, if acting in good faith, may be subrogated to the rights of the mortgagee.</p> <p>2. The sale of land, under a power contained in a mortgage, in order to be valid must be made in strict compliance with the terms of the power, and must be openly and fairly conducted.</p> <p>3. Plaintiff claimed to have "bought the land at a sale under a power contained in a mortgage executed by seven of ten tenants in common to L., whose son and heir assumed to exercise the power of sale. Subsequently, two of the said seven, together with the other three tenants in common who did not join in the mortgage to L., executed a mortgage- to J., cashier of a banking association, (unincorporated,) to secure a note to said association. F. subsequently became cashier of the assQciation, and he sold the land under the said mortgage to F., and plaintiff became the purchaser. Thereupon five of the tenants in common (four of whom signed the note and mortgage to J.) executed a bond to plaintiff by which they agreed to surrender possession of the land in default of the payment of a specified sum within a certain time. In an action to foreclose the last-named instrument the defendants alleged fraud, that plaintiff had received the benefit of the proceeds of the note executed to J., and that they were not and had never been indebted to plaintiff, except on a prior note, which was usurious and had been fully paid ; Held, that the court erred in refusing to admit evidence tending to sustain such defense.</p>

PetitioN for the sale of land for assets pending in the Superior Court of Gbbene County, transferred to Term, for trial, and heard before Brown, JE, at .May Special Term, 1894. From a judgment of his Honor remanding the ease to the clerk and directing its dismissal the plaintiff appealed. The facts are stated by Associate Justice Eue-OI-IES.

Civil aotioN, to recover possession of land, tried before Graham, J,, at December Special Term, 1895, of G-beene Superior Court. The defendant admitted possession but denied title in the plaintiff.

<p>Custom of Banlcs — Dealings Between Bank and Depositor— Title to Negotiable Instruments — Restricted Endorsements — Presumption and Proof of Bailment.</p> <p>1. A negotiable instrument deposited in a ba.nk, endorsed “ for collection,” remains the property of the depositor, and the same rule holds when the written endorsement appears unrestricted but, as a matter of fact (evidenced by express collateral agreement or a tacit understanding to be reasonably inferred from the course of dealing' between the bank and its depositor) the instrument is taken by the bank, not as a purchase, but for collection simply.</p> <p>2. The fact that a bank has given a depositor credit for the amount of a negotiable instrument, regularly endorsed, is not conclusive evidence that the bank had purchased the paper and was not a mere bailee thereof.</p> <p>3. When a bank habitually credits a depositor’s account with negotiable instruments endorsed to it by such depositor, giving permission to the depositor to draw against such credits, but charges up to the depositor all such papers as are not paid on presentation, or deducts such items from the next deposit; such a course of dealing stamps the transaction, with reference to the title to instruments so endorsed, as being unmistakably a bailment for collection simply, and no greater title is vested in the bank.</p>

Civil actioh, beard upon petition in the cause, in a creditor’s bill, entitled Strauss, on behalf of himself and all other creditors, &c. v. Carolina Interstate B. & L. Association, by Graham, J., at Chambers, in October, 1895. , The order made, and from which the receivers and non-borrowing members of the Association appealed, is as follows : “ This action coming on to be heard before' his Honor, A. W. Graham, Judge presiding inrtlie sixth judicial district, at Chambers, at…

Civil aotiok, tried before Greene, N., and a jury, at January Term, 1896, of Moore Superior Court. From a judgment for the defendant the plaintiff appealed. The facts are sufficiently set out in the opinion of Associate Justice Montgomery.

Civil action, heard on appeal from a judgment of a justice of the peace, before Soke, D, at November Term, 1895, of CuMBKRLAND Superior Court- The action was brought to recover the amount of a draft sent by the plaintiff to Bank of New Hanover, at Wilmington, endorsed “ for collection and remittance ” and by the latter bank sent to the defendant. On the trial John 0. Haigh testified as follows : “ Received draft from Bank New Hanover.

Civil aotton, beard before Hohe, J., at November Term, 1895, of CUMBERLAND Superior Court. The defendant appealed from the judgment in favor of the plaintiff. The facts are stated by Associate Justice Furghes.

Speoial PROCEEDING, by W. 0. McDuffie and others, judgment creditors of the estate of M. Faulk, deceased, pending before the Clerk of the Superior Court of Cumberland County. J. W. Sellars, administrator, had qualified and given his bond in the sum of four thousand dollars.

Civil ACTION, brought by plaintiffs for the partition of land, heard before Greene, The property sought to be partitioned was devised to the parties by the will of Susan O. R. Blake, as follows : “ I give, devise and bequeath all my real property and estate of whatsoever description, consisting of town lots, houses, &c., in the town of Lumberton, N. 0., and the land in Britt’s township, in said county, known as the Britts land, to my husband, W. B. Blake, in trust for all my…

Civil action, for conversion of trust funds, tried before Greene, J., and a jury, at January Term, 1896, of Moore Superior Court. There was a verdict for the defendant, and, from judgment thereon and the refusal of a motion for judgment non obstante veredicto, the plaintiff appealed. The facts are sufficiently stated in the opinion of Associate Justice MONTGOMERY. The contract referred to in the opinion was as follows: “ To Messrs.

Civil actioN, for the recovery of land, tried at May Term, 1895, of CumbkRLANP Superior Court,, before Norwood, J., and a jury. There was a verdict for the defendants and plaintiffs appealed. The facts necessary to an understanding of the decision of the Court are stated in the opinion of Associate Justice Furohiss.

This was a civil action, tried before Norwood, J., and a jury, at May Term, 1895, of Cumberland Superior Court.

This was a oivil actiox, tried before Greene, J., at the January Term, 1896, of Moore Superior Court, upon exceptions to Referee’s report, certain of the issues arising upon pleadings having been tried before Whitaker, Judge, and a jury, at March Term, 1893. It appeared that the Referee appointed by Judge Whitaker bad made report to December Term, 1894 — and that upon hearing exceptions to said report the cause was re-referred to the Referee.

This was a oiviu aotioN, brought for the recovery of compensation for an alleged deficiency in the area of a tract of land sold by defendant to plaintiff, and tried at Pall Term, 1895, of the Superior Court of Montgomery County, before Norwood, Judge. The plaintiff appealed. The facts bearingupon the points determined by the Court are set out in the opinion of Associate Justice Montgomery.

<p>This was a civil ACTION, brought to obtain judgment on the notes of the defendant, and for the foreclosure of a mortgage alleged to have been given to secure said notes, heard before Norwood, J., at Maj Term, 1895, of the Superior Court of Cumberlakd County, on a motion by the plaintiff for a receiver, said motion being based on the complaint,, answer, reply and the affidavit of the plaintiff and defendant respectively.</p> <p>The motion for the appointment, of a receiver was refused, and the plaintiff excepted and appealed to the Supreme Court. The material facts appear in the opinion of Associate Justice Clakic.</p>

This was a civil aotioN, tried before his Honor, Nor-woocl, T., at November Term, 1895, of Iüedell Superior Court. The action was commenced by plaintiff for possession, under claim and delivery, of certain personal property, a pair of mules, &c., conveyed by John I). Somers by chattel mortgage to H. L. Ayers, on the 8th of September, 1893, and assigned by H. L. Ayers to C. J. Ayers, October 24, 1893, and assigned by C. J. Ayers to the plaintiff, December 12, 1893.

<p>Contract— Usury — Intent of Lender — Indirect Profit in Excess of Legal Rate of Interest.</p> <p>1. If it is the intent or purpose of the lender of money to get more than the iegal rate of interest for the loan, and if there he a provision, a condition or a contingency in or connected with the contract by which he may do so, the transaction is usurious.</p> <p>2. If the usurious character of a transaction is not manifest upon its face, but depends on facts and circumstances connected with the transaction, as a part of res gestae, it is a question of fact as well as law, and should be submitted to the jury.</p> <p>3. Where a life insurance company lent to a borrower a sum of money at the full legal rate of interest, payable monthly, its repayment being amply secured by mortgage on real estate, but required the borrower, in addition and as a condition of the lease, to take from and reassign to it an endowment policy for a sum equal to the amount of the loan, upbn which the premiums should be paid monthly for seven years, (or until his death,) the payment of the premiums being also secured by the mortgage ; Meld, that the transaction was usurious.</p>

OlaiM against the State,, filed by plaintiffs in this Court. The petition was as follows : The plaintiffs complain and allege : “I. That on the 27th day of February, 1895, they were residents and citizens of the city of Winston, in Forsyth county, iii the State of North Carolina, and are now residents and citizens of said city, county and State. “II.

This was a oivil aotioN, tried before Judge Brown and a jury, at January Special Term, 1896, at Forsyth Superior Court. The plaintiff claimed a debt on W. A. Alspaugh of $290, with interest secured by notes and mortgages assigned as collateral, as appears in the pleadings, and prayed for judgment on debt and foreclosure of collateral mortgages. W. A. Alspaugh, witness in his own behalf testifies: “ I paid off the notes and mortgages set forth in the complaint.

ActioN fob an injunction, pending in Forsytt-i Superior Court, beard before Norwood, “ That plaintiff is a citizen and tax payer of Forsyth -comity, and defendant is the owner of a valuable loi of ground in the city of Winston, formerly used as a courthouse seat; that a court-house until recently stood thereon.

Civil action, tried before Brown, J., and a jury, at December Special Term, 1895, of Forsyth Superior Court. The action was to recover loss by lire.

Civil actiom, beard upon the report of Eeferee, and exceptions thereto filed by defendant, before his Honor, Judge Norwood, at the February Term, 1896, of Foesyth Superior Court. There was judgment for the defendant and plaintiff appealed. The facts appear in the opinion of the Court.

This was a PROCEEDING-, begun before the Clerk of the Superior Court of Ro'ciciNGHam, by William H. Herbin, by motion, founded on an affidavit and carried by theiespond-ent, Mary E. Wagoner, by appeal to the Superior Court in Term, where the judgment of the Clerk set out in the record was affirmed, and the respondent appealed to this Court.

Civil aotion, for damages for personal injuries caused by alleged negligence of defendant in not keeping its street in proper repair, whereby plaintiff was thrown from a fire-engine and hurt, tried at January Special Term, 1896, of Eoesyth Superior Court, before Brown, Jl, and a jury.

<p>Judgment Entered During Vacation and Out of County — Consent Judgment, Validity of.</p> <p>1. A judgment may, by consent, be rendered during vacation.</p> <p>2. A judgment when signed with the consent of the parties by the Judge in a county other than that in which the action is . pending is valid.</p> <p>3. Where a summons in an action was regularly issued and a veri -fled complaint filed for a sum certain, and no answer was filed, and an agreement was made by the defendants, that if .judgment should be taken against them by any other creditor, or if the debt should not be paid by a time certain, then judgment should be entered in favor of plaintiff at term or in vacation for the amount demanded in the complaint, and no fraud was suggested ; Held, that a judgment rendered upon the happening of both the contingencies slated is valid and cannot be attached by other creditors whose judgments were rendered at, or about the same time, but docketed later.</p>

Civil ACTION, tried at January, Special Term, 1896, of Forsyth Superior Court, before Brown, J., and a jury. There was judgment for the defendant, T. H. Pegram, Sr., (surety,) and plaintiff appealed. The material facts are stated by Associate Justice Montgomery.

Civil action, tried before Norwood, P, at January Term, 1896, of Rockingham Superior Court. The action was brought for the purpose of having a receiver appointed for the Boyd Manufacturing Company, (a partnership composed — before its dissolution by the death of A. J. Boyd— of A. J. Boyd, S. H. Boyd, G. D. Boyd, and Mrs T. A. Richardson,) and to restrain the execution sale of partnership property by the defendant Bank of Reids-ville, on a judgment rendered in 1894.

Civil aotion, tried before Norwood, J., at Spring Term, 1896, of RocKINGhah Superior Court.

AotioN to recover land, tried before Timberlake, J., and a jury, at Fall Term, 1894, of Yancey Superior Court. His Honor directed a verdict for the defendant, and plaintiff appealed. The facts are stated in the opinion of Associate Justice ClarK.

Civil aotioN, tried at Fall Term, 1895, of Mitchell Superior Court, before Bryan, </., and a jury. The defendant appealed from the judgment in favor of the plaintiff, and in'this Court moved that a new trial be ordered for newly discovered testimony.

AotioN for an injunction and other relief, by W. S. Harvey, Trustee, against the Linville Improvement Company, Hugh MacRae and others, pending in Caldwell County, and heard, on motion, before Timberlake, J., at Burnsville, on May 22, 1895, upon complaint, used as an affidavit, and upon other affidavits and documents adduced in behalf of plaintiff and defendants.

Civil, ACTION, for the recovery of land, and to determine conflicting titles to the same, tried before Bryan, J., and a jury, at Fall Term, 1895, of Buricb Superior Court. It was admitted that both parties claimed under the North Carolina Estate Company (Limited) and that the land in controversy had been conveyed to the company by ■deed in June, 1886.

<p>Civil. ACTION, tried before Timberlake, J., at Spring-Term, 1985, EmtKE Superior Court.</p> <p>The action was brought to rescind a contract to purchase land, because of alleged defects in the title of the vendor, and recover the portion of the purchase-money already paid. i</p> <p>The tracts of land covered by the contract to convey consist of one three-hundred-acre tract, one twenty-two- and-one-half-acre tract, one one-hundred-acre tract, one seventy-eight-and-one-tliird-aere tract, and one eight-acre tract. There was no dispute as .to the seventy-eight-and-one-third-acre tract, or the twenty-two-and-one-half-acre tract; the controversy was solely as to title to the three hundred acres, the one hundred acres, and the eight acres.</p> <p>In order to show lie- was able to comply with his contract to convey to the three tracts in dispute, the defend ant introduced a grant from the State to one KcKLlesky,. dated March 15th, 1780.</p> <p>This grant was objected to on the ground that it was registered without being proven before the clerk, or by him ordered to be registered. Objection overruled. Exception.</p> <p>This grant proposes to convey three hundred acres of' land in Burke county, on the waters of Silver Creek.</p> <p>The defendant next offered a deed from O. L. S. Corpen-ing, late Clerk and Master in Equity for McDowell county,., to Christiana J. and Huldah E. Pearson, dated April 19, 1871.</p> <p>The defendant next offered a deed from Christiana J. and Huldah E. Pearson, by their guardian, Rachel W. Pearson, and by Rachel W. Pearson in her own right. [Objected to, for want of power in Rachel W. Pearson tO' convey as guardian, and for want of proper probate and registration. Overruled. Exceptions by plaintiff.]</p> <p>The certificate of probate and registration is as follows :</p> <p>“ NoBTH CAROLINA-BuJBKK C0UNTY.</p> <p>“ I, J. H. Hallyburton, Clerk of the Superior Court, do-hereby certify that B. S. Gaither, the subscribing witness,, appeared before me this day, and the due execution of the annexed deed was duly proven by him. Let the same, with this certificate, be registered.</p> <p>“ Witness my hand and seal, this 29th day of May, 1880.</p> <p>“ J. H. Hallybubton, Clerk.”</p> <p>(Seal of Court.)</p> <p>“ 4. The defendant next introduced deed from L. S. Hap-good to Hancock Gold Mining Company, dated July 3, 1880. [Objected to on the ground that no power in the Hancock Gold Mining Company to hold lands had been shown, or that there was any Hancock Gold Mining Company. Objection overruled. Exception.]</p> <p>“ 5. The defendant next introduced power of attorney by Hancock Gold Mining Company to L. S. Hapgood, its ■treasurer, to convey their lands, dated July 11, 1883.</p> <p>“ 6. Next introduced deed from Hancock Gold Mining 'Company to 0. 0. Barton, executed by said company through its agent, L. S. Hapgood, dated June 15, 1888. .‘[Objected to for the same reason as Number 4. Ovei1-■ruled. Exception by plaintiff.]”</p> <p>This deed purports to be executed by the Hancock Gold Mining Company, under its seal, by L. S. Hapgood, Treasurer. The certificate of probate is as follows:</p> <p>“ COMMONWEALTH OF MASSACHUSETTS,</p> <p>“ Suffolk, s. s., July 6, 1888.</p> <p>“ Then personally appeared the above-named, L. S. Hap-■good, Treasurer, and acknowledged the foregoing instrument to be the free act and deed of the Hancock Gold Mining Company before me.</p> <p>(Seal) Joseph A. Willard,</p> <p>“ Clerk of the Superior Court.’’’’</p> <p>On the left of the signature is the seal of superior court ■affixed.</p> <p>The following is the certificate of the superior court of .Burke county:</p> <p>“ North CaroliNa — Burhe County.</p> <p>“The foregoing certificate of Jos. A. Willard, clerk superior court of Suffolk county, Mass., is adjudged to be ■correct. Let the deed and this certificate be registered.</p> <p>“July 17th, 1888.</p> <p>“ S. E. Pearson,</p> <p>“ Clerk Superior Court.”</p> <p>“Buree County.</p> <p>“Filed for registration on the 17th day of -July, 1888,. and registered in the office of the register of deeds for Burke county, N. C., on the 17th day of July, 1888.</p> <p>“ J. L. J. Estes,</p> <p>“ Register of Deeds for Burlce County.”'</p> <p>[Clerk will copy power of attorney to L. S'. Hapgood! above and mark “Exhibit F.”]</p> <p>Next introduced deed Hancock Gold Mining Company to 0. C. Barton, September 1, 1893. Objected to for the reason that the Hancock Gold Mining Company had no-right to convey land. Overruled and exception.</p> <p>“8. Next introduced-deed from C. C. Barton to L. S. Hapgood, June 15, 1888.” [Objected to for want proper registration and probate. Overruled and exception.]1</p> <p>The certificate of probate is in the following words and figures:</p> <p>“ COMMONWEALTH 0E MASSAOHUSETTS,</p> <p>“ Suffolk County, s. s., July 6, 1888.</p> <p>“ Then and there personally appeared the above-named Charles C. Barton, and acknowledged the foregoing instrument to be his free act and deed before me.</p> <p>“ Joseph A. Willard,</p> <p>(Seal) “ Cleric Superior Court.”</p> <p>On the left side of the signature is the seal of the superior court affixed.</p> <p>The following is the certificate of the clerk of the superior court of Burke coiinty :</p> <p>“North CaroliNA — Burke County.</p> <p>“ The foregoing certificate of Jos. A. Willard, Clerk of the Superior Court of Suffolk county, Mass., is adjudged to be correct. Let the deed and certificate be registered.</p> <p>“ S. T. Pearson,</p> <p>“ Cleric Superior Court of Burhe County.”</p> <p>The certificate of registration is as follows;</p> <p>“ Filed for registration on the 17th day of July, 1888, ■¡and registered in the office of the register of deeds for JBurfee county, North Carolina, on the 17th day of July 1888, in book ‘ P,’ page 56, 57.</p> <p>“ J. L. J. Estes,</p> <p>“ Register of Deeds for Burlce County, N. C.”</p> <p>Next introduced record of special proceedings in the case of Christiana J. and Huida. E. Pearson by their guardian Rachel Pearson (ex joarte) in which the petition • set forth that the petitioner Rachel, as widow and the infant petitioners, Christiana and Huida, as the only heirs-at-law of Patton Pearson were the owners of certain lands (described) and that they had been offered $1,400 in cash for the land by L. S. Hapgood of Boston ; that it was to the interest of all parties to sell, &c., and praying the court to order a sale of the lands by a commissioner after enquiry and report as to the value of the lands, &c. The record also showed a report by a commissioner as to the value of the lands and a recommendation that a sale ■should be made, the facts contained in the report being set out in the decree. The report was filed May 19, 1880, and confirmed on same day by the clerk. The record of said special proceedings also contained the following decree signed by Judge Gilmer:</p> <p>DECREE.</p> <p>This case coming on to be heard before John A. Gilmer, one of the judges of the superior courts of the State, now holding the several courts of the Eighth Judicial District, at Chambers, and being heard upon the petition and exhibits, the former order of the court, the report of the commissioner, G. P. Erwin, and the [report] on file. The ■court doth find and declare the facts to be:</p> <p>“ 1. That the petitioners are tenants in common of the land described in the petition; that the petitioner, Rachel W. Pearson, is entitled to dower in the said lands, and has title to two-thirds of the mineral interest therein in fee-simple ; that the petitioners, Christiana J. Pearson and Halda E. Pearson, are entitled to all the land and one-third the mineral interest in fee-simple, subject to the dower of the said Rachel W. Pearson, daring her life; that the value of interest of Rachel W. Pearson is -equal to the one-half of the present value of the land and all the minerals therein ; and that the value of the present interest of the said Christiana J. and Huida E. Pearson, jointly, is the one-half of the value of the land and all the minerals therein ; and that the value of the lands is eight hundred dollars; that the said Christiana J. is nineteen and the said Huida E. Pearson is seventeen years of age, and are infants; that the petitioner, Rachel W. Pearson, their mother, has been duly appointed their guardian. That the said Rachel W. Pearson, for herself and in behalf of her said wards, has made a contract to sell all the said land at the price of fourteen hundred dollars in money in hand paid, has entered into a written contract with Lyman S. Hapgood, of Boston, in the state of Massachusetts, to that effect, and the court finds the fact to be, and so declares, that the interests of the two minor petitioners, C. J. and Huida E. Pearson, (as well as that of the petitioner, Rachel W. Pearson,) would be materially promoted by a sale of said land at the price of fourteen hundred dollars, and the proceeds of the sale partitioned among the petitioners, according to their respective interests, and that part belonging to the said minors.paid into this court, and placed under control of the court, to be invested or loaned as the court may direct.</p> <p>“ It is therefore ordered, adjudged and decreed, that the said Rachel W. Pearson, guardian Of the said Christiana J. and Huida E. Pearson, is authorized and empowered by this court to specifically perform said written contract with said Lyman S. Hapgood upon his paying for said land the sum of fourteen hundred dollars, money in hand; and that she be authorized and empowered to convey all the interest, right, title and claims of her said wards in the said lands in fee-simple, with the usual covenants of warranty ; and that said conveyance, made in pursuance of this decree, shall pass the title of the said wards in the same manner, and to the extent as if made by the said Christiana J. and Huida E. Pearson, in proper person of full age.</p> <p>“ The court doth adjudge that the said purchase-money shall be divided into two equal parts; one part thereof shall be the share of Christiana J. and Huida E. Pearson jointly, and be paid into this court immediately after the sale of the land ; that the same be re-invested, or loaned, to the use and benefit of the said minors as the judge of this court may specify and order; and it is further ordered that this case be retained for further orders. It is adjudged that the petitioner, Rachel W. Pearson, pay the cost of this proceeding out of her part of the proceeds of such sale, and that Geo. P. Erwin, the commissioner, be allowed $5 for taking the testimony, and making his report 24th May, 1880.</p> <p>“JOHN A. GILMER,</p> <p> “ Judge Fifth, District, Presiding in </p> <p>“ Eighth Judicial District J</p> <p>REPORT OF RACHEL PEARSON.</p> <p>Rachel Pearson, guardian of her two daughters, C. J. and Huida E. Pearson, has the honor to report to this court, that she, as guardian of her said wards, and in her own behalf, has specifically performed the written contract entered into with Lyman S. Hapgood, on the 29th day of April, 1880, in behalf of herself and in behalf of her said wards by selling and conveying to the said Lyman S. Hapgood the lands described in the proceedings in this case under and in pursuance of the former order of this court, having received in payment for said land the sum of fourteen hundred, dollars of money in hand paid, one-half of which is the money due my wards for their interest in said lands ; and I do now return and pay into this court, for the use and benefit of my said wards, the sum of seven hundred dollars ($700), agreeable to the order of this court, made in this case, this 29th May, 1880. (Signed by Rachel W. Pearson.)</p> <p>RECEIPT OE CREEK.</p> <p>il The within report on this 31st day May, 1880, was returned into court, and the sum of $700 paid into court by Eachel W. Pearson, guardian of her wards, C. J. and Huida E. Pearson, for their use and benefit, to be invested by the order of this court for them, agreeable to the former order made by the judge of this court, and the clerk of this court has given his receipt for the same, this 31st May, 1880.</p> <p>“ J. H. HallyburtoN,</p> <p> “ Clerh Burlce Superior Court.” </p> <p>Next introduced grant from the State to James Green-lee, James and "William Erwin, dated December 7,f‘1795.</p> <p>Next introduced deed from George P. Erwin, trustee, to Hancock Gold Mining Company, covering the eight-acre traet, and it was admitted th.at G. P. Erwin, as such trustee, had power to convey the title to lands belonging to the heirs of the said Greenlee and the said Erwin within boundary of this grant. There was evidence that the eight-acre tract was within the boundaries of this grant.</p> <p>Next introduced grant from the State to J. PI. Hall, dated November 25, 1853, covering one hundred acres.</p> <p>Next introduced deed from James Terry and wife to L. S. Hapgood, dated July 23, 1880.</p> <p>Next introduced letters of incorporation of the Hancock Gold Mining Company, with certificate by the Secretary of State for Maine, as follows :</p> <p>“ CERTIFICATE OF ORGANIZATION OF A CORPORATION UNDER THE GENERAL LAW.</p> <p>“ The undersigned, officers of a corporation organized at Portland,in the county of Cumberland and state of Maine, at a meeting of the signers of the articles of agreement therefor, duly called and held at No. 93 Exchange, in said Portland, on Saturday, the 19th day of June, A. D. 1880, hereby certify as follows :</p> <p>“The name of said corporation is the Hancock Gold Mining Company. The purposes of said corporation are the mining and milling of gold and other minerals, and especially the mining and milling of gold and other minerals in Silver Creek township, Purke county, and State of ■ North Carolina. '</p> <p>“ The amount of capital stock is three hundred thousand dollars, and is paid in full, and the shares thereof are to be forever non-assessable. The par value of a share is ten dollars.</p> <p>“ The names and residences of the owners of said shares are as follows :</p> <p>“Lyman S. Hapgood, Boston, Mass., ten thousand.</p> <p>“ John E. Eldridge, Boston, Mass., ten thousand.</p> <p>“ Alpheus P. Blake, Boston, Mass., ten thousand.</p> <p>“ Said corporation is located'at Portland. The number of directors is three, and their names are Lyman S. Hap-good, John E. Eldridge and Alpheus P. Blake. The undersigned, John F. Eldridge, is President; the undersigned, Lyman S. Hapgood, is Treasurer, and the undersigned, John F. Eldridge, Lyman S. Hapgood and Alpheus P. Blake, are a majority of the directors.</p> <p>“Witness our hands, this 19th day of June, A. H., 1880.</p> <p>JOHN F. ELDRIDGE,</p> <p> President and Pireetor. </p> <p>LyMAN S. Hapgood,</p> <p> Treasurer and Director. </p> <p>Alpheus P. Blaee,</p> <p> Director. </p> <p>“CUMBERLAND — ss June 19, A. D. 1880.</p> <p>“Then personally appeared John F. Eldridge, LymanS. Hapgood and Alpheus P. Blake, and made oath that the foregoing statement, by them subscribed, is true.</p> <p>Before me : A. J. Bradstreet,</p> <p> Justice of the Peace.” </p> <p>State op Maine,</p> <p>Attorney GeneraVs Office,</p> <p>. June, A. D. 1880.</p> <p>“I hereby certify that I have examined the foregoing certificate, and the same is properly drawn and signed, and is conformable to the Constitution and laws of the State.</p> <p>Henry B. Cleaves,</p> <p>Attorney. General.”</p> <p>“ State oe Maine,</p> <p> Office of Secretary of State. </p> <p>“I hereby certify7 that the foregoing is a true copy from the records of this office. In testimony whereof I have caused the seal of the State to be hereunto affixed.</p> <p>“Given under my hand at Augusta,this sixth day of February, in the year of our Lord one thousand eight hundred and ninety-four, and in the one hundred and eighteenth year of the Independence ofthe United States of America.</p> <p>J. J. OHADBOÜRNE,</p> <p>(Official Seal) ' Secretary of State.”</p> <p>[Objected to by the plaintiff for defective certificate, and there was no power conferred in the certificate upon the alleged corporation to hold and convey land described in the deeds to and from it. Objection overruled and exception by the plaintiff.]</p> <p>For the purpose of showing the unequitable conduct of the plaintiff towards her bargainor, the defendant, by her agent, copartner and co-plaintiff, the defendant introduced a tripartite contract between the plaintiff, J.. 0. Land-reau, Rev. Father Crowly and Mrs. Ilarcello. (See Exhibit B.) Also affidavit of Landreau, showing that he was a party in interest. (Exhibit 0.)</p> <p>[Plaintiff objects ; overruled-; exception.]</p> <p>These exhibits are omitted here because the purport of this evidence is sufficiently stated in the opinion.</p> <p>Plaintiff introduced no evidence. There was a verdict and judgment for defendant, and plaintiff appealed and assigned as errors as follows :</p> <p>“ 1st. Admission of improper testimony.</p> <p>“ 2d. Refusal to give instructions asked for by plaintiff.</p> <p>“ 3d. For error in instructions given.</p> <p>“4th. To the judgment.”</p> <p>As these assignments of error are held 'to be too vague and indefinite, as far as the judgment and instructions arc ■concerned, and the judge’s charge and prayers for special instructions are not passed upon by the court, they are omitted.</p>

Civil actioN, tried before Bryan, J., at Meoklekbuk© Superior Court, January Term, 1896. There was judgment for the defendant. Plaintiffs appealed. The facts appear in the opinion of the Court.

Civil aotioN, heard before Timberlahe, J., at September Term, 1895, of MecKLKNbubg Superior Court. On the 6th day of April, 1880, Nancy S. Smith made a conveyance of certain real estate to Carrie E. Smith, W. Me. Smith and W. H. Bailey in trust for the benefit of certain individuals therein mentioned, with limitations- and contingent interests to numerous other persons, named therein.

Civil ACTION, tried before Bryan, J., at January Term,, 1896, of MeCKlenburg Superior Court, on appeal from a judgment of a justice of the peace.

Civil action, beard on complaint and answer and demurrer to answer, before Bryan, J., at Fall Term, 1895, of Mecklenburg Superior Court. The plaintiff, by this suit, seeks to compel the defendant, Jno. H. McAden, executor and trustee under the will of the late R. Y. McAden, to account with and pay over to him the share or interest of his deceased wife, Mrs. Virginia M. Baker, in the estate of her father, the testator.

Civil aotioN, heard before Bryan, J., at January Term, 1896, of Mecklenburg Superior Court.

This was a motion in a Civil ACTION, pending in the Superior Court of RuthbRfoed County, at Fall Term, 1895. As appears from the complaint filed in this cause, the-plaintiffs are the widow and one of the heirs-at-law of P. B. Morgan, deceased, and the defendant is the administrator of the said P. B. Morgan, deceased, having administered on the estate of P. B. Morgan in the County of McDowell in 1886.

Civil action, heard before Timberlahe, Jat Fall Term, 1895, of Rutherford Superior Court, on exceptions to referee’s report. The action was brought by the plaintiff, (a son-in-law of the intestate of defendant) against the defendant for the value of the services of himself and wife to defendant’s intestate, which he placed at $1,000 over and above all set-offs and counter-claims.

This was a civil action, tried by Timberlahe, J., and a jury, at Fall Term, 1895, of Ruthebfobd Superior Court, upon complaint, answer and issue.

PetitioN of defendants to rehear case, in which a per curiam, judgment (without written opinion) was rendered at February Term, 1895, of the Supreme Court, affirming the judgment of Winston, Y., at October Term, 1894, of MeoKlenbukg Superior Court.

PetitioN by defendants to rehear case between same parties, decided at February Term, 1895, of the Supreme •Court, by a Per Guriam judgment, without written opinion, affirming the judgment rendered for the plaintiff by Graham, J., at March Term, 1895, of MeoKlenbukg 'Superior Court. The essential facts are stated in the opinion of Associate Justice Clare.

Civil aotiow, for damages to plaintiff’s land by defend-nat’s dam and mill-pond, tried before Timberlahe, I, and a jury, at Fall Term, 1895, of CleveuaND Superior Court. There was a verdict for the plaintiff, and from the judgment thereon' the defendant appealed, assigning as error the instructions of his Honor and the exclusion of evidence as •referred to in the opinion of the Chief Justice.

Civil action, beard before Starbuek,«/., at Spring Term, li>96, of G-aston Superior Court, on a case agreed as follows : “I. That the plaintiff and defendants banks are both national banks duly incorporated, and engaged in the general banking business, the former being located in the city of Charlotte, N. C., and the latter in the town of Gastonia, N. C., and were so engaged at the times hereinafter mentioned. “ II.

Civil ACTION, tried before Bryan, J., and a jury, at Fall Term, 1895, of StaNly Superior Court. The material facts are stated in the opinion of Associate Justice MONTGOMERY. The defendant testified as follows: “Hinson requested me to take the notes, and at proper time to collect and keep the money until the two girls came of age, and pay over to them. I told him I would take the notes and do the best I could with them. He died in a short while.

Civil action, heard before Timberlake, J., at Fall Term, 1895, of ClevelaND Superior Court, on a ease agreed as follows : “I. That the town of Shelby is a corporation, with full powers to levy and collect taxes upon all species of property. “ II.

<p>‘Partition Proceedings — Form of Petition — Plea of Sole Seizin — Adverse Possession — Ejectment—Rules of Proof •and Estoppel Peculiar to Actions of Ejectment — Judge's Charge — The Code, Sections 136,137, 1892, 1903.</p> <p>T. The effect of a plea of sole seizin set up in a proceeding for partition is, practically, to convert the case into an action of ejectment, and to bring into operation the rules of proof and estoppel which obtain in that action.</p> <p>'8. The various methods of making out a prima facie case for the plaintiff in ejectment pointed out.</p> <p>• 3. When one who is made a defendant in a proceeding for partition, because he is the husband of one of the alleged co-tenants, pleads sole seizin, it is competent to show that he entered and held possession as tenant of the alleged co-tenant.</p> <p>■4. The rule that a tenant is estopped to deny the title of his landlord is honorable alike for its antiquity and its usefulness. It is one of the most valuable rules of practice and evidence. To hold that it does not apply when sole seizin is pleaded in a proceeding for partition would be to destroy all reasoning by analogy and the logic of the law.</p> <p>•5. The rule of estoppel based upon a common source of title — that where both sides in an action of ejectment claim under A. both are estopped to deny his title — is not simply an arbitrary fiction of the law. It is based on reasoning and logical deduction.</p> <p>'6. Possession of the tenant is that of the landlord ; and, in making - out title by occupancy for a given length of time, the period covered by the possession of the tenant is to be added to that covered by the possession of the landlord in person.</p> <p>'7. An instruction to the jury which is so complicated, involved and confusing as to leave the jury in doubt whether an adverse possession, sufficient to establish title in the possessor, must be thirty or fifty years, necessitates a venire de novo.</p> <p>'•&. In computing the number of years of an adverse possession the periods of occupancy by the ancestor and the heir respectively should be added together.</p> <p>9. The law presumes possession unexplained to be adverse possession.</p> <p>10. Sections 136 and 137 of The Code being repealed by Ch. 113,. Laws 1891, the time between May 20, 1861, and January 1, 1870, is no longer to be omitted in computing time as regards Statutes of Limitation, except in actions commenced prior-to January 1, 1893.</p> <p>11. There is no statute or judicial ruling in this State which? makes an allegation of possession vitally essential to a petition for partition, except the decision in Alsbrooh v. Reid,. 89 N. C., 151, which ease is overruled on that point.</p> <p>Avert, J., concurs in the conclusion, but not in the opinion.</p>

Civil aotioN, tried- before Tirriberlalce, J., at August Term, 1895, of UnioN Superior Court. The affidavit upon which defendants were arrested is as follows: James Hayes, being duly sworn, says : “1. That he is the agent of Durham Fertilizer Company, •a corporation created under the laws of the State of North Carolina, and doing business at Durham, North Carolina. “ 2.

Civil actioN, heard on complaint and demurrer, before Graham, J., at March Term, 1895, of BuNcombe Superior Court. The complaint, after alleging th‘e execution of a note for $5,500 by defendant, D. D. Suttle, to the defendant, J. B. Bostic, secured by deed of trust, its assignment for value to the plaintiff, and its non-payment, further set out: “ 3.

Civil aotioN, for the recovery of land, tried before Graham, J., and a jury, at March Term, 3 895, of BuNcombe Superior Court. At the conclusion of the evidence, his Honor intimated that the plaintiff could not recover, and thereupon the plaintiffsubmitted to anon-suit and appealed. The material points in the case are stated by Associate Justice Fueohes.

This was a.MOTION made by Sarah A. Sluder, one of the plaintiffs, in the action above named in the December Term, 1894, of the Superior Court of BunooMbe County, to vacate the judgment entered in said action at August Term, 1893, of said court.

MotioN to retax bills of costs, beard before Robinson, J., at August Term, 1895, of BüNCombe Superior Court. The motion was allowed, and the witnesses who had been allowed to prove attendance and mileage in several cases consolidated into one, and whom the order restricted to the privilege of proving but one attendance- and mileage in one case, appealed.

Civil aottoN, beard on motion to set aside an award of arbitrators before Robinson,, </., at December Term, 1895, of Buncombe Superior Court. His 'Honor granted the motion and plaintiffs appealed.

Petition for dower, heard on appeal from an order of the Clerk of Buncombe Superior Court, directing are-allotment, before Timberlake, J., at Chambers, in Asheville. His Honor, after bearing full argument and considering conflicting affidavits as to value, &c., affirmed the order of the clerk, and defendants appealed.

Civil action, upon motion of plaintiffs to strike out defendant’s answer as frivolous and for judgment heard before Robinson, J., at December Term, 1895, of Buroombe Superior Court.

MotioN in a civil action, pending in BuNCOMbe Superior Court, for an injunction to restrain the City of Asheville from collecting from the plaintiffs certain assessments upon them as owners of property abutting on Main street in Asheville, heard before Robinson, Jat Chambers, in Ashe-ville, on the 31st day of August, 1895. The charter sections relating to the improvement of streets are as follows : “ Sec. 5.

Civil ACTION, begun by summons issued on the 27th day of February, 1888, returnable to the March Term of the Superior Court of Buuoombe County, in favor -of the plaintiffs against the defendants, S. Baird, administrator of E. W. Herndon, deceased, H. M. Herndon, Robert P. Yance, J. R. Jones, E. Sluder, R. L. Luther, J. R. Rich, W. J. Worley and E. A. Lance, tried before his Honor, W. S. O’B. ■Robinson, Judge, and a jury, at the August Term, 1895, of said court.

This was a PROCEEDING commenced by the plaintiff before the Clerk of the Superior Court of Mecklenburg County for the purpose of having her dower allotted to her in the real estate of her husband, the late Honorable Z. B. Yance. The plaintiff filed her petition before the Clerk and the defendants answered the same.

<p>PetxtioN by defendants to rehear the case between same parlies, decided at February Term, 1895', and reported in 116 N. C. Reports, 859.</p>

Civil action, pending in Madison Superior Court, and heard on complaint and demurrer before lidbinson, Jat Chambers, on 3d October, 1895. The action was against the defendant Candler and the sureties on his official bond as collector of the school and other taxes of Madison County and was brought in the name of the plaintiff as Treasurer of said county.

Civil action, yi nature of a creditor’s bill, brought by the plaintiff and other creditors of J. W. L. Arthur against him and other defendants, to set aside a sale and transfer of property as fraudulent, and tried before Graham, N., and a jury, at Spring Term, 1895, of Madison Superior Court, whence it had been removed from Swain County. The issues are set out in the opinion of Associate Justice Avuity.

Civil aotiou. by the plaintiff as fixe North Carolina administrator of J. L. Hill, (who died domiciled in South' Carolina,) against the defendant on a note dated April 27, .1885, for $3,915.86, payable one day after date. There were endorsed credits of $582,94 on February 1, 1888.’ The action was commenced on 21st June, 1893. The defendant pleaded the bar of the Statute of Limitations.

Civil actioN, heard on complaint, and demurrer, before Robinson, J., at Pall Term, 1895, of Haywood Superior Court. The 4th and 5th paragraphs of the complaint were as follows : “ IY. Held: and the same does not impute to the plaintiff any misconduct, malversation, corruption or inefficiency in office, and the special damage alleged is too remote, indefinite and uncertain. “ 3rd.

<p>This was an ACTION, brought to enforce a mechanic’s lien upon the property described in plaintiff’s complaint, belonging to tbe femes defendants, M. M. Stringfield, wife of W. W. Stringfield, and M. R. Welch, wife of W. P. Welch, tried before Robinson, J., and a jury, at Fall Term, 1895, of the Superior Court of Haywood County.</p> <p>After the jury were empaneled the pleadings were read and the plaintiff tendered issues, to be submitted to the jmT-</p> <p>The plaintiff admitted that the contract set out in defendant’s answer, (the material provisions of which are stated in the opinion of Justice Montgomery,) was the contract referred to in plaintiff’s complaint. Thereupon his Honor held that, it appearing that this action was brought to enforce a mechanic’s lien against the property of the said femes defendants, M. M. Stringfield andM. R. Welch, both of whom were and are married women, the plaintiff, under the pleadings and the said contract referred to therein, could not recover in this action, and gave judgment dismissing the same as to all the defendants except B. P. Chat-field, and the plaintiff appealed.</p>

<p>Deeds as Evidence — Lost Records — Presumptions in favor of Proper Proceedings in the Courts — Adverse Possession defined — Equivocal Possession— Widow’s Possession Not Adverse to Heir — Recita,Is in Deeds of Commissioners — The Code, ¡Secs. 69,70.</p> <p>1.- Where a deed is offered in evidence no objection lies except to the regularity of the probate and registration, the court having'the power always to reserve the questions of relevancy and legal effect till a subsequent stage of the trial. Therefore an objection, in limine, for all .purposes cannot be sustained.</p> <p>2. In order to ripen into title a possession must not only be open, notorious, adverse and continuous during the statutory period, but it must be unequivocal.</p> <p>3. The test of the sufficiency of the possession to fully mature title depends upon the question -whether a right of action had existed for the statutory period, when the suit was instituted, in favor of the parties against whom the benefit of ■lapse of time is claimed.</p> <p>4. The possession of a widow is not adverse to the heirs of her husband.</p> <p>5. Where the original papers of the judgment roll are lost or destroyed, but the rough minute docket of the court shows that a petition to sell land for assets was filed, and the other dockets show memoranda of an order for publication for non-resident defendants, that an order of sale was made, report of sale filed and judgment of confirmation, there is a presumption of law, independent of the statute, The Code, Sees. 69, 70, that the publication was made as ordered, and proper proof of it filed before the judgment of sale was entered. *</p> <p>6. Recitals in a commissioner’s deed that the sale was made under a judgment of the court are prima facie evidence of the “binding force” and validity of such judgment, as against all persons who were parties to such judgment. This by virtue of The Code, Sees. 69, 70.</p>

AdRltoatioN FOR alimoNY pendente lite, heard by Lob-insón, J., upon affidavits and motion of defendant to dismiss, at Fall Term, 1895, of Macon Superior Court. The facts are sufficiently stated in the opinion. Defendant appealed.

<p>Statute of Frauds — Estoppel to Deny Authority of Agent — Damages on Sale of Chattels — Judgment by Default and Inguiry — Interest on Verdict — The Code, Secs. 413, 1554.</p> <p>1. The Statute of Frauds {The Code, Sec. 1554) can only be taken advantage of by pleading- it. But, if an oral contract is alleged in the complaint and denied by the answer, and a different contract set up in the answer, oral evidence of plaintiff’s claim will be excluded.</p> <p>2. Where one pays for part of certain property purchased for him by one who claimed and represented himself to be the agent of such xiurchaser, he ratifies the contract of purchase and will not be heard to deny the agency.</p> <p>3. Remarks of the judge, of doubtful propriety, made, not in his charge, but to counsel during the introduction of the evidence, are not a ground for a new trial, unless it reasonably appears that a party is prejudiced in the minds of the jury by such remarks.</p> <p>4. It is not erroneous or improper for a judge to make a calculation of the amount claimed by a party, and to hand such calculation to the jury with the instruction that they are not bound thereby but must find the amount due from the evidence.</p> <p>5. The measure of damages for a breach by vendee of a contract for the purchase of-timber, to be delivered at a designated point, is the contract price less the cost of putting the timber at the place designated for its delivery.</p> <p>6. Where there was judgment by default and inquiry, and upon the inquiry an issue was submitted as to what amount was due the plaintiff from defendant on account of certain logs cut and delivered, to which the jury responded a certain amount, it was error to add any interest to the amount so found for time elapsed prior to the inquiry, as such interest is presumed to have been included in the verdict as rendered.</p> <p>Clark, J., dissents.</p>

Civil aotioN, tried at Fall Term, 1895, of Haywood County Superior Court, before Robinson, P, and a jury.

Tliis was AN actioN, brought by the plaintiff to recover compensation for services rendered to the defendant, begun before a justice of the peace and heard on appeal before Robinson, J., and a jury, at Fall Term, 1895, of Haywood Superior Court. The plaintiff1 alleged that he was entitled to compensation at the rate of $100 per month and expenses, by reason of a special contract entered into with the defendants by their agent, D. F. Gibbons.

This was a civil aotioN, to recover the possession of the land described in the complaint, tried before his Honor, W. S. O'B. Robinson, Judge, and a jury, at the Fall Term, 1895, of the Superior Court of JaoiisoN County.

PetitioN by plaintiff for sale of land of his decedent for-assets, pending in CirEROKEE Superior Court and heard by Robinson, J., at Pall Term, 1895, of said court, on appeal from a judgment of the clerk denying a motion of J. Johnson, a creditor of the estate, to be made a party plaintiff' with the administrator. His Horror reversed the order of the clerk, and plaintiff appealed.

Civil actioN, tried before Graham, J., and a jury, at Spring Term, 1895, of Cherokee Superior Court. There was a verdict for the plaintiffs, and from the judgment thereon defendants appealed. The facts are fully stated in the opinion of Associate Justice MONTGOMERY.

Civil action, tried on appeal from justice of the peace’s court, before Robinson, J., at Fall Term, 1895, of Graham Superior Court. The facts are stated in the opinion of Associate Justice Montgomery. From a judgment for the defendant on his counter-claim the plaintiff appealed.

<p>Practice — Execution—Return of Sheriff — False Recital — Motion to Strike Out Return — Judgment of Justice of the Peace — Pocketing—Lien—Appeal—Super-sedeas Bond — Execution Sale — Application of Proceeds —Priorities.</p> <p>1. Where a sheriff’s return on an execution recited payment of the money realized thereon in satisfaction of a judgment, and it appeared from a subsequent affidavit of the sheriff that the return was incorrect, and that he retained the money to await the orders of the court; Held, that such return will, on motion of an interested party, be stricken from the record.</p> <p>3.A judgment of a justice of the peace when duly docketed in the office of the superior court clerk becomes a judgment of that court to all intents and purposes, and is a lien upon all of the real estate of the defendant in the county.</p> <p>3. Where an appeal is taken from a judgment of a justice of the peace, and security is given to stay execution, the plaintiff is not deprived of the right to have it docketed in the superior court, nor is the lien of the judgment destroyed by the appeal and supersedeas bond.</p> <p>4. A judgment of a justice of the peace does not become dormant by the failure to issue execution thereon pending an appeal from the judgment where bond has been given to stay.</p> <p>5. Where a sheriff sells land under execution, the law applies the proceeds first to the satisfaction of the execution issuing on the oldest judgment in his hands at time of the sale.</p> <p>6. It is not necessary, in order that a judgment may share, according to its priority of lien, in the proceeds of sale that advertisement shall have been made under it, if the sheriff has other valid executions in his hands under which proper notice of sale has been given, but there must be an execution on such judgment in the sheriff’s hands on the day of sale.</p> <p>7. Where a sheriff sells land under several executions, having in his hands at time of sale an execution issued on the judgment having the oldest lien, the purchaser gets the land discharged from the lien of any judgment subsequent to the oldest.</p> <p>8. Where a sheriff sells land under a junior judgment or judgments, having no execution in his hands issuing on older judgments, the purchaser takes the title subject to the liens of the older judgments.</p>

Ctvil action, for the recovery of land, tried before Graham, J., at Spring Term, 1895, of Cheroxee Superior Court. The defendant appealed. The facts are stated in the opinion of Associate Justice Montgomery.

<p>This was a oivid action, tried before Robinson, Judge, at Fall Term, 1895, Geaham Superior Court.</p> <p>The plaintiff introduced and read the Acts of Assembly of 1856 and 1857, and the Articles of Association of April 14, 1857. The plaintiff offered to prove that, on the 10th day of March, 1857, Daniel F. Goodhue, and the other parties mentioned in said act as corporators, after having-obtained the subscription of $200,000, met in the city of Cincinnati, and State of Ohio, organized and accepted the charter; and that at said meeting Daniel F. Goodhue, David Christy, John Probasco, "William 13. Probasco and John W. Goodhue were elected directors of said corporation, the appellant, for one year, and that, said Daniel F. Good-hue was elected president for one year; that the plaintiff, the Tuckasegee Mining Company, held regular annual meetings from the first organization till the bringing of this action, and that the said Goodhue was elected and served as president each year up to his death in 1883 ; that said Daniel F. Goodhue issued cei tifieates of stock of said corporation, as said president, to himself and various other persons, and that at the time of his death he owned more stock of said corporation than any other person, which was sold by his administrator after his death; that said Goodhue executed leases for the. land described in the pleadings to various parties, describing himself as trustee of the Tuckasegee Mining Company; that the defendant, "VVillis E. Goodhue, is the son and only heir-at-law of Daniel E. Goodhue, and that he is a stockholder of the plaintiff, and refuses to execute deeds to the plaintiff for the lands described iu the pleadings.</p> <p>That, at a regular meeting of the directors of the said corporation, (Daniel E. Goodhue being one,) said Daniel F. Goodhue and John Probasco were appointed and made trustees, to receive and hold titles to all lands purchased by the Tuckasegee Mining Company for the Tuckasegee Mining Company; that the plaintiff, the Tuckasegee Mining Company, paid with its own funds and stock for all the lands described in the pleadings ; that J. W. Cooper is a stockholder of thé Tuckasegee Mining Company; that neither Daniel E. Goodhue nor Willis E. Goodhue have ever paid anything directly for the lands described in the pleadings, but only indirectly as stockholders; that Daniel E. Goodhue accepted and held the deeds and grants in his own name for the lands desi-ribed in the pleadings, as trustee of the Tuckasegee Mining Company, knowing that he was receiving the same as such, and that, during his life-time, he never denied said trust; that all the lands described in the pleadings were purchased by plaintiff and conveyed to Daniel E. Goodhue, as trustee; that plaintiff, at its first meeting on the 10th day of March, 1857, opened proper books, and kept books and offices of the Tuckasegee Mining Company all the time till the bringing of this action, and made and adopted by-laws for the governing of said corporation. All this evidence was objected to by the defendants, and ruled out by the court, and the plaintiff excepted.</p> <p>The plaintiff, having admitted that there had been no organization of said- corporation in the State of North Carolina, and there having been no evidence offered that there had ever been any meeting of the directors of said corporation in this State, the court intimated that, upon the above-stated evidence and the above-stated admissions, the plaintiff could not recover in this action; whereupon, the plaintiff submitted to a non-suit and appealed.</p>

Civil actioN, (consolidation of thirteen different cases,) heard on appeal from judgments of a :ustice of the peace, before Graham, J., and a jury, at Spring Term, 1895, of CiieRokee Superior Court. Plaintiff appealed. The facts appear in the opinion of the Chief Justice.

Civil actioN, begun before a justice of the peace, and beard on appeal before Robinson, Judge presiding, at the Eall Term, 1895, of the Superior Court of Cheeok.ee County. The complaint was as follows : “ 1.

This was a civil action, tried before Robinson, J.. and a jury, at Fall Term, 1895, of Haywood County Superior Court. The action was brought by plaintiff under Sections 52 ■and 53 of The Oodeto recover damages against the defendant for wilfully and unlawfully setting fire to his (defendant’s) woods without giving notice to plaintiff, from which the fire spread and damaged plaintiff.

<p>This was a oivil agtioN, tried before his Honor Judge Graves, and a jury, at May Term, 1894, of NORTHAMPTON Superior Court, to recover damages for alleged injuries to the lands and crops of the plaintiff, caused by ponding of water by the defendant’s road-bed and bridge.</p> <p>The defendant tendered the following issues, numbered 3 and 4, which his Honor refused to submit to the jury.</p> <p>u 3. Are the bridge and embankineut of the defendant permanent structures ?</p> <p>“ 4. Is the damage of the plaintiff’s land permanent in its character ?”</p> <p>The defendant excepted.</p> <p>The questions involved in these rejected issues arose upon defenses duly setup in the answer..</p> <p>There were a number of exceptions made below but as the only one passed upon by this Court is the rejection of the above issues it is deemed unnecessary to refer to them. There was a verdict and judgment in favor of plaintiff. Defendant appealed.</p>

<p>Negligence — “ last Clear Chance ” to Avoid an Accident— Intoxicated Persons on the Track — Inferences the Jury May Draw.</p> <p>1. Where an engine is run at night with the tender in front and no headlight, and a person lying on the track is injured, if the jury find that a headlight would have enabled the engineer to see the person on the track in time to have avoided an injury, then the failure to provide a head-light and have it at the front was a continuing negligent omission of a duty, the performance of which would have afforded the last clear chance to prevent the injury, and becomes the proximate-cause of such injury.</p> <p>2. If a person is drunk and lying upon a railroad track, such negligence is not deemed the proximate cause of an injury sustained from a moving train, if the engineer, by the exercise of ordinary care, could have seen him in time to have prevented the injury by the proper use of the appliances at his command.</p> <p>3. It is competent for the jury to be guided by their own reason, experience and observation in such questions as within what distance and period of time a moving train can be’stopped, or how far an engineer can see an object on the track with or without a head-light. It is idle to offer witnesses to conclude either courts or juries from inquiring whether a headlight helps an engineer to see or prevents his seeing.</p> <p>4. The rule, established by Pickett v. B.. 117 if. C., 616, and cases that have followed at this Term, with reference to the “ last clear chance ” to avoid an injury, affirmed.</p>

Civil action, tried before Norwood, at April Term, 1895, of Brunswick Superior Court. Defendant appealed. The judgment appealed from is as follows : “ This cause coming on to be heard and issues having been submitted to the jury as follows: “First. Was the plaintiff injured by the negligence of the defendant or its agents? “Second. Was the engineer of the defendant at the time of the accident a fellow-servant with the plaintiff? “Third.

Civil aotioN, tried before Hol&e, J, at October Term, 1895, of RICHMOND Superior Court. There was a verdict and judgment for defendant; the plaintiff appealed. All essential facts are set out in the opinion of the Court.

Civil action, tried before his Honor, Judge Starlmch, at the November Term, 1895, of the Superior Court of PERSON County, upon the issues directed by the Supreme Court in this case, as will appear from the record, and the opinion of the Court reported in 115 N. C. Report, page 662, and in 116 N. C., page 937. After the jury was empanelled, the defendant’s counsel tendered the following issues : “3.

Civil ACTION, tried before Brown, J., at December Term, 1895, of Forsyth Superior Court. There was a verdict and judgment for $6,000, in favor of plaintiff. Defendant appealed. The facts are sufficiently set out in the opinion of Judge Furohes.

This was a civil ACTION, brought by the plaintiff, Calvin Wood, against the defendants, the Southern Railway Company, for the recovery of damages for alleged injuries to certain live stock, viz.: eighty-seven head of yearling cattle while being transported in its care from Marion, N. C., to Culpepper, Ya., tried before his Honor, H. B. Bryan, Judge, at Fall Term, 1895, of Mitchell Superior Court.

<p>Civil aotioN, tried before Timberlahe, N., at October Term, 1895, of the Superior Court of MbokleNbukg.</p> <p>The action was originally brought against the said Charlotte Street Railway Company and the Charlotte Consolidated Construction Company, but, at the close of the evidence, the plaintiff entered a nol. pros, as to the last-named defendant.</p> <p>The plaintiff teudered the following issues :</p> <p>“ First. Was the plaintiff, Nathan, injured by the negligence of the Charlotte Street Railway Company ?</p> <p>“ Second. Did the plaintiff, Nathan, by his own negligence, contribute to his injury ?</p> <p>“ Third. .Notwithstanding the contributory negligence of the plaintiff, Nathan, might the injury have been avoided by the exercise of reasonable care on the part of the Charlotte Street Eailway Company ?</p> <p>“Fourth. What damage has the plaintiff, Nathan, sustained 1 ”</p> <p>The'defendant objected to the submission of the third issue. The objection was overruled, and the defendant excepted. The court thereupon submitted the issues as tendered by the plaintiff and above set forth.</p> <p>The jury responded in the affirmative to the first, second and third issues, and to the fourth issue $650.</p> <p>The defendant moved for judgment upon the verdict, notwithstanding the finding upon the third issue, contending that the third issue was immaterial and not raised or presented by the pleadings. This motion was overruled and the defendant excepted. • The defendant then submitted the following motion in writing, to-wit:</p> <p>“ The defendant makes the following motion, upon the verdict rendered by the jury :</p> <p>“ First: That the verdict upon the third issue be stricken out, because, 1st: This issue is not raised by the pleadings ¿ 2d: There was no evidence produced on the trial that made it proper to submit this issue to the jury, and of course there was no evidence to sustain this finding, except the evidence that tended to sustain the finding upon the first issue. This being true, the finding on the third issue is a mere reiteration of the finding on the first issue, and its effect as to entitling the plaintiff to recover is destroyed by the finding on the second issue.</p> <p>“ Second : The defendant further moves for a new trial on the third issue alone, because this issue, if considered •as involving facts other than those involved in the first issue, was not raised by the pleadings, and there was no evidence in the cause which rendered it proper to submit an ■issue in regard to defendant’s negligence, except the first ■issue.”</p> <p>The defendant expressly restricts his motion to the third -issue, and to the judgment which should be rendered upon the verdict, and does not except to the finding of the jury upon the first, second and fourth issues.</p> <p>These motions of the defendant were overruled, and to the ruling on each of them the defendant excepted.</p> <p>There was a judgment for the plaintiff upon the verdict, ■and defendant apppealed.</p>

<p>Negligence and Contributory Negligence — Duty of Engineer.</p> <p>1. While an engineer is required to solve all reasonable doubts in favor of saving life, he is not required to provide against what he has no reasonable ground to anticipate. The legal obligation is to take proper precaution to guard against what is the usual or justly expected consequence of one’s acts — not against unexpected, unusual or extraordinary results.</p> <p>2. One who attempts to walk across an elevated trestle, so high as to make it dangerous to jump to'the ground, is negligent, and if injured by a train while crossing, the jury should find that his injuries were the result of his contributory negligence.</p> <p>3. Where an engineer, seeing a person on a high trestle, reduced the speed of the train, but, upon such person’s getting off of the track and into a place which he had seen others occupy with safety while trains passed, the engineer increased the speed of the train, it is error to refuse to call the attention of the jury to the question whether the position occupied by such person had proven a place of safety for others, and whether the engineer desisted from his efforts to stop the train because he reasonably supposed there was no longer any danger of causing an injury.</p>

Appeal by the defendant, the Chester & Lenoir Narrow G-auge Railroad Company, from the order of Judge J. 0. Bynum, dated July ...., 1894, and the order made by his Honor, Judge W. B. Allen, at Chambers, on December_, 1894, in a civil action depending in the County of Catawba. The action was for appointment of a receiver and to cancel a lease and compel the defendant to take back its road.

<p>AppliCation for injunction to restrain defendant from constructing and operating its railroad on certain parts of Mont ford Avenue, in the City of Asheville, heard before Graham, J., at Chambers, in Asheville, on 3rd day of May, 1895. A restraining order was issued and defendant appealed.</p>

<p>■Negligence and Contributory Negligence — Hule of the Last Clear Chance to Avoid an Injury — Liability of Master for Injuries to Servant — Disobedience of Servant.</p> <p>1. In all the eases decided by this Court in which the omission to improve the last clear chance to prevent injury is held to be a proximate cause, the liability of the defendant railroad companies is made to depend upon the question whether their servants negligently omitted to stop the train after plaintiff had placed himself in a perilous position. The same rule has been invariably apj>lied to the injury of animals exposed on the track, and the rule so established is approved and affirmed.</p> <p>3. While an employee may not be culpable for obeying the orders of a vice-principal, he is guilty of negligence if he does an act involving danger in disobedience to such orders. He cannot recover for an injury resulting from such disobedience. To hold otherwise would be unjust, unreasonable, and therefore contrary to law.</p> <p>3. Asection hand gpt off of the track to avoid an approaching train and in doing so stepped upon some loose earth that had accumulated from time to time in a cut; the dirt gave way and he fell on the track and was injured by the train. It was error to instruct the jury under these circumstances that the giving way of the dirt was the proximate cause of the injury, and that the railroad company was liable for damages. By no conceivable act could the defendant’s engineer have rendered the earth solid after plaintiff got upon it, and the defendant was only liable if its engineer neglected to use-reasonable precautions to prevent an injury after he saw the-perilous position of plaintiff. (Clark, J., dissented.)</p>

This was an ACTION, begun before a justice of the peace,, and carried by appeal to the Superior Court, and heard before Robinson, J., at Fall Term, 1895, of Haywood Superior Court, upon the complaint and demurrer as follows: Plaintiff complains that lie had shipped to him from Savannah, Ga., on December 3, 1891, three horses from Younglove & Goodman, on the defendant’s line of railroad.

<p>Civil aotioN, tried before TimberlaJce, J., at August Term, 1895, of UNION Superior Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>The following issues were submitted to the jury and agreed to, except 3d, which was objected to by the defendant, upon ground there was no evidence to support it, to-wit:</p> <p>“ 1st. Was the plaintiff injured, as described in the complaint, by the negligence of the defendant railroad company ? Answer: ‘Yes.’</p> <p>“ 2d. If so, did plaintiff contribute to her injury by her own negligence 2 Answer:‘No.’</p> <p>“ 3d. Could the defendant, by the exercise of reasonable care and prudence, have avoided the injury 2</p> <p>“ 4th. What damage, if any, has the plaintiff sustained ? Answer : ‘ One thousand dollars.’ ”</p> <p>The court told the jury if they found 1st issue “ Yes,”' and 2d issue “No,” not to answer the 3d issue, and hence there was no response thereto.</p> <p>Defendant asked for following special instructions :</p> <p>“ 1. The burden is on the plaintiff to show that the negligence of the defendant was the proximate cause of the injury she received, and unless she shows this by a prepon•derance of the evidence, she cannot recover, and the answer to the first issue should be ‘No.’</p> <p>“2. If the plaintiff, or her husband, by the exercise of her senses, conld have seen or heard the approaching train, and failed to do so, and her injury was caused thereby, it was negligence on her part, and she cannot recover, and the answer to the second issue should be ‘Yes.’ ■ •</p> <p>“ 3. Under the circumstances of the case, as shown by the evidence, it was the duty of the plaintiff and her husband, to stop, look and listen to tell whether a train was approaching, and if she failed to do so, and her injury was caused thereby, this is contributory negligence, and she cannot recover, and you will answer the second issue < Yes.’</p> <p>“ 1. Although the engineer may have failed to give the blows for the crossin >■, still it was the duty of the plaintiff •and her husband to stop, look and listen before attempting to cross the track ; and if she failed to do so, and her injury was caused thereby, she cannot recover, and the answer to the second issue would be ‘ Yes.’</p> <p>“ 5. That if the plaintiff, or her husband, before reaching the crossing on the G., C. & N. Railway, could have seen or heard the approaching train, and failed to do so, •and her injury was caused thereby, this would be contributory negligence on her part, and she could not recover, -and your answer to the second issue should be ‘ Yes ’; and 'this would be so even if the defendant did not give the blow for crossing.</p> <p>“ 6. That if the plaintiff, or her husband, at any time after passing crossing on G., 0. & N. Railway, had stopped the buggy, looked and 'listened, and could have seen or heard the approaching train, and failed to do so, and her injury was caused thereby, this would be contributory negligence, and sbe cannot recover, and your answer to the second issue will be £ Yes’; and this would be so even, if defendant did not blow for the crossing.</p> <p>“ 7. "When a railroad crosses a public road on a level or-at grade, the railroad has the right of way, and persons traveling on the public road must yield precedence to the train, and if the plaintiff, or her husband, by the exercise of ordinary care, could have seen or heard the train at any point far enough from the crossing on the C. C. Railroad to have stopped the horse before reaching the crossing and avoided the collision, and failed to do so, this would have been contributory negligence, and plaintiff could not recover, and yon should answer the second issue ‘Yes’; and this would be so even if defendant did not blow for the crossing.</p> <p>“ 8. That if the view of the line of railroad was partially obstructed from public road, the plaintiff and her husband traveling in a top buggy, top up, with side curtains, the-opportunity to turn from the road from &., 0. & N. crossing to C. C. crossing unsafe, the distance about 290 feet, it was the duty of the plaintiff and her husband to exercise a high degree of care before making either crossing, and to take every prudent precaution to avoid a collision^ stop, look and listen, even if no regular train was expected to pass, or if the railroad had not given notice of its approach, and if plaintiff and her husband failed to do so, and her injury was caused thereby, she cannot recover, and you should answer the second issue ‘ Yes.’</p> <p>“ 9. If you answer the second, issue ‘ Yes ’ yon need not answer the third issue.</p> <p>“10. If you answer the Erst issue ‘No’ you need not answer the second and third issues.</p> <p>“ 11. That if the defendant road blew for the road crossing you will answer....'issue ‘No.’</p> <p>“ 12. Tliat if the defendant gave any signal of its appoach to the crossing sufficient to alarm the plaintiff of its approach you will answer the first issue ‘ No.’</p> <p>“ 13. That if the jury believe the engineer was keeping a proper lookout, and after he discovered the plaintiff used every effort that he could with the appliances at his command to avoid the collision, and was unable to do so, you will answer the third issue ‘ No.’</p> <p>“ 15. It was not the duty of the engineer to stop and look out on the track of the G., C. & N. Railway further than he was traveling in its direction, viz., at junction switch of C. C. R. R. and G., C. & N. Railway. That it was his duty and that of his fireman to keep a proper lookout on the C. C. R. R., so far as their duties would permit, and if they did so and could not and did not see the plaintiff’s buggy until it crossed the G., 0. & N., seventy-eight to ninety yards from C. C. crossing, and when they saw that the buggy did not slop, and at that time they were so near the C._C. crossing that then the engineer could not stop his train with the appliances at hand, and that he made every effort that could be made with the appliances at hand, the plaintiff could not recover, and it would be the duty of the jury to answer the third issue ‘ No.’ ”</p> <p>In lieu of the special instructions asked by the defendant the court charged the jury as follows :</p> <p>Eor No. 1. Given exactly, with the addition that the third issue should be answered “No.”</p> <p>For No. 2. If the plaintiff, or her husband, by the exercise of their senses, could have seen or heard the approaching train and failed to do so, and her injury was caused thereby, it was contributory negligence on her part, and the answer to the second issue should be “ Yes.”</p> <p>For No. 3. Under the circumstances of this case, as • shown by the evidence, it was the duty of the plaintiff and her husband to look and listen to tell whether a train was approaching, and if she failed to do so, and her injury was caused thereby, this wras contributory negligence, and you will answer the second issue “Yes.”</p> <p>For No. 4. Although the engineer may have failed to give the blows for the crossing, still it was the duty of the plaintiff and her husband to look andlisteu before attempting to cross the tracks, and if she failed to do so, and her injury was caused thereby, she is guilty of contributory negligence, and the answer to the second issue should be “ Yes.” Rut if you should further find that if the engineer had rung the bell or sounded the whistle at a reasonable distance from the crossing, and he failed to do it, and the locality and position of plaintiff was such as that she could have heard said signal, if it had been given, and would not have attempted to cross, notwithstanding she did not look and listen, in this event the proximate cause of plaintiff’s injury would be defendant’s negligence and you will answer the third issue “ Tes.”</p> <p>For No. 5. Given exactly as requested, except the clause “ and she cannot recover” was stricken out.</p> <p>For No. 6. That if the plaintiff, or her husband, at any time after passing the crossing on the G., C. &N. Railway, had looked and listened, and could have seen or heard the approaching train, and failed to do so, and her injury was caused thereby, this would be contributory negligence, and your answer to the second issue will be “ Yes ”; and this would be so even if defendant did not blow for the crossing.</p> <p>For No. 7. When a railroad crosses a public road on a level or at a grade the railroad has the right of way, and persons traveling on the public road must yield precedence to the train, and if the plaintiff, or her husband, by the exercise of ordinary care, could have seen or heard the train at any point far enough from the crossing on the O. C. R. R. to have stopped the horse before reaching the crossing, and avoided the collision, and failed to do so, this .would be contributory negligence, and you should answer the second issue “Yes;” and this would be so even if defendant did not blow for the crossing. Yet those in charge of trains are bound to give reasonable warning so that a person about to cross may stop and allow the train to pass, and if you should further find said warning was not given as before explained, and further, that if it had blown plaintiff would have heard it, and not attempted to cross, your answer to the third issue would be “ Yes.”</p> <p>Eor No. 8. Given exactly, except the clause “ she cannot recover,” just at the close, was stricken out.</p> <p>Nos. 9, 10, 11 and 12 were refused.</p> <p>Nos. 18 and 14 were given.</p> <p>For No. 15. Given exactly, with the addition “ provided further you find that the signal was given at a reasonable distance from the crossing.”</p> <p>The court also gave the following instructions asked for by plaintiff:</p> <p>“ The. law devolves upon the defendant company the duty to give due and proper signals when approaching crossings, so as to warn travelers of the approach of their trains, and if in this case the defendant failed to give such signal, at a reasonable distance from crossing, either by blowing whistle or ringing bell, the defendant was guilty of negligence, and if such failure was proximate cause of plaintiff’s injury the jury^ should answer the 1st and 3d issues ‘Yes.’</p> <p>“ The law devolves upon the defendant company the duty to keep a diligent outlook for travelers in operating its trains when approaching public crossings, and especially is this true in cities and populous towns, where a higher degree of care is required than when in the open country, and if in this case the defendant company failed to keep such lookout, and such failure was proximate cause of plaintiff’s injury, the jury should find 3d issue ‘ Yes.’</p> <p>“Even if jury should believe the plaintiff was careless in exposing herself, yet if she would not have gone on crossing but for the negligence of the engineer in failing to give proper signal, if lie did so fail, defendant would still be liable for damages resulting from collision, and you should answer 3d issue ‘ Yes.’</p> <p>“ If the defendant’s engineer could, by use of appliances he had at hand, after he saw and realized plaintiff’s peril, have so checked his speed as to have avoided injury without endangering his train or persons on it, and he failed to do so, jury should answer 3d issue £ Yes.’</p> <p>“ If the defendant’s engineer could, by the exercise of a vigilant outlook, have seen plaintiff’s danger in time to check his speed and avert the danger with appliances he had at hand, without danger to his train or persons on it, and failed to keep such outlook and to discover plaintiff’s peril, aud such failure was proximate cause of plaintiff’s injury, jury should answer 3d issue £ Yes.’</p> <p>“ If the jury should find 1st issue ‘ Yes,’ or the 3d ‘ Y’es,’ or both £ Yes,’ you will consider what damage, if any, plaintiff has sustained, and in passing upon this may properly take into consideration any and all losses they may find from the evidence the plaintiff is likely to sustain in future resulting from loss of time, loss from inability to perform physical or mental labor, loss of capacity to earn money, and practical suffering of body and mind, which are the immediate and necessary consequences of her injury. There is no evidence of any expenditure for medicine or doctors’ bills, and you will not consider this.”</p> <p>After recapitulating evidence and giving fully the contentions of both parties, the court charged the jury as follows :</p> <p>On 1st Issue. If yon find that the engineer failed to give signal either by blowing whistle or ringing bell at a reasonable distance from the crossing, such as described by the witnesses, this would be negligence, and you would answer 1st issue “ Yes.” If you find signal was given at reasonable distance, theu yon will answer 1st issue “ No.” Defendant excepted to this charge.</p> <p>On 2d Issue. The law imposes on the plaintiff the duty to look out for the approach of the trains and to observe all reasonable precautions before attempting to cross the track, and if you find that she did not look and listen to ascertain if a train was coming and observe all reasonable precautions to avoid danger, you will find the 2d issue “Yes.” If she did look and listen and observe all reasonable precautions you will find that issue “ No.” Defendant excepted to this charge.</p> <p>On 3d Issue. If you find the 1st and 2d issues “ Yes,” that is to say, if you find plaintiff failed to look and listen and observe reasonable precautions before crossing, and further find that the engineer failed to give signal as before explained in these instructions, still if you further find that if he had given such signal she would have heard same, and would not have attempted to cross, defendant’s negligence would be proximate cause of plaintiff’s injury, and you will find 3d issue “Yes.” Defendant excepted to this charge.</p> <p>On 3d Issue. If you find 1st and 2d issues “Yes,” that is to say, if you find plaintiff failed to look and listen and observe all reasonable precautions before crossing, and further find that the engineer .failed to give signal as before explained in these instructionsj still if you further find that the engineer saw said plaintiff in time to check his speed and avert the danger with the appliances at hand without danger to his train or persons on it, then the defendant failed to use reasonable care and prudence, and yon will answer 3d issue “ Yes.” Defendant excepted to this charge.</p> <p>On 3d issue. If yon find the plaintiff failed to look and listen and the defendant failed to give signal as before explained, and further find that if such signal had been given she would not have heard it without looking and listening, and would have gone on, yon will answer 3d issue “No,” unless, as before explained, yon should find that the engineer saw plaintiff in time to check his speed, avert the danger, and failed to use reasonable care and prudence. Defendant excepted to this charge.</p> <p>On 3d Issue. If you find that after seeing plaintiff the engineer used reasonable care and prudence to stop the train you will find third issue “No,” unless you should find, as before explained, that if proper signals had been given plaintiff could have heard train and not attempted to cross, notwithstanding her failure to look and listen. Defendant excepted to this charge.</p> <p>On 4th Issue. You will allow a reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering both of body and mind, which are the necessary and 'immediate consequences of her injury. Defendant excepted to this charge.</p> <p>The court fully explained to the jury which instruction applied to the different issues, and told them not to consider the third if their answer to the first should be “ Yes ” and to the second “ No.”</p> <p>DEFENDANT’S MOTION FOR NEW TRIAL.</p> <p>“ For error in court for admitting incompetent testimony and refusing to admit competent testimony, as appears from exceptions in this statement. Eor error of court in giving instruction excepted to by defendant in this statement.</p> <p>“Eor error of court in refusing to give instructions ashed for by defendant.”</p> <p>And defendant further excepted to the submission of 3d issue.</p>

The p'risoner was indicted for the murder of Louisa Thomas, his wife. The evidence was as follows : Daniel Simmons testified: “On the 12th of July last, near the mouth of Trent creek, I was fishing. Prisoner and his wife passed us in a boat. I spoke. They went down, stopped, and fished a little, then went to Mason’s Point, fastened the boat to a poplar stake on Bay river. George Jones and I passed them, and they came back. We fastened our boat, and went to fishing.

<p>INDICTMENT EOR MURDER, tried before JBoyhin, J., at Spring Term, 1895, of Pasquotanic Superior Court. There was a verdict of guilty of murder in second degree. Defendant appealed.</p>

IndiotmeNt foe MURDER, tried before Meares, J., at the February Term, 1896, of the Circuit Criminal Court of Halifax County. The prisoner was indicted for the murder of M. M. Dodd, a locomotive engineer of the Seaboard Air Line, at Weldon, N. 0., on the 22d February, 1896. The prisoner was found guilty of murder in the first degree, and the judgment of the court was duly prayed, and the prisoner was sentenced by the court to be hanged on-the 17th day of March, A. D. 1896.

INDICTMENT foe. mtodbR, and being accessory before the fact, tried before Holce, J., at October Term, 1895, of Robeson Superior Court. The bill of indictment charged Wade Locklear with the murder of Burdie Bullard, and Patrick Locklear and G-. W. Locklear with being accessories before the fact.

INDICTMENT EOR murder, tried before Bryan, J., at Fall Term, 1895, of McDowell Superior Court. The appellant, A. L. Finley, Jr., and one James Jim-merson, were jointly indicted for murder, and both convicted of murder in the second degree. A. L. Finley, Jr., appealed.

<p>Murder and Manslaughter — JTewly Discovered Evidence— Record for Supreme Court in State Cases.</p> <p>1. The admission of additional testimony after the evidence is closed hut before a verdict is rendered, like a motion for a new trial for newly discovered evidence, is a matter of unre-viewable discretion in the judge below.</p> <p>3. It is not essential that the transcript of the record in a State case shall contain a list of'the grand jurors.</p> <p>(For other points decided see head-notes to State v. Finley, at this Term.)</p>

INDICTMENT eor murder, tried at December Term, 1895, of Riohmond Superior Court, before Robinson, J., and a jury. The defendant was charged with the murder of Oliver Capel, was convicted of manslaughter, and, after being sentenced to imprisonment at the State penitentiary for a term of ten years, appealed. It is not necessary to state the facts connected with the killing in order to an understanding of the decision.

IndiotMENt FOR Murder, tried before Ewart, J., at _ Term of the Criminal Court, Western Circuit, for Madison county. The defendants were convicted of murder in the second degree and appealed.

The DEFENDANT was tried and fined by a justice of the peace in Halifax for disobedience to a summons of a road overseer to- work on a public road, and was again convicted on appeal heard before Meares, N., at December, 1895, Tqrm of the Criminal Court of Halifax County. The jury returned a special verdict, the substance of which is set out in the opinion of Chief Justice Fairoloth and from the judgment of Meares, Jl, defendant appealed.

INDICTMENT for violation of an ordinance of the town of Louisburg, heard, on appeal from a judgment of the mayor, before Robinson, J., and a jury, at January Term, 1896, of Eeanelin Superior Court. There was a verdict against the defendant, and from the judgment thereon the defendant appealed.

INDICTMENT, under Section 1120 of The Code, for willful trespass on land after being forbidden, tried,, on appeal from a justice of the peace, before Btarbucic, Tlie defendant was convicted and appealed. The facts sufficiently appear in the opinion of Associate Justice Claee.

INDICTMENT for releasing impounded stock, tried before ■Coble, e/1, and a jury, at the September Term, 1895, of Waice Superior Court, on appeal from the judgment rendered against the defendant in the court of a justice of the peace.

<p>Peace Warrant — Appeal.</p> <p>There is no appeal in peace warrant proceedings from the justice of the peace to the superior court.</p> <p>PROCEEDINGS, on a peace warrant, heard before Starbuck,. J., at February Term, 1896, of Duplin Superior Court.</p>

<p>INDICTMENT for perjury, tried before Graham, J., at October Term, 1895, of Sampson Superior Court.</p>

INDICTMENT for assault upon a special policeman of the town of Clinton, while in the lawful discharge of his duty. The defendant was convicted and sentenced to imprisonment in the county jail for six months, and appealed.

INDICTMENT Eon laRceny, tried before Graham, J., and a jury, at Eall Term, 1895, of Onslow Superior Court. The defendant was convicted and appealed. The facts necessary to an understanding of the decision of the Court are set out in the opinion of Associate Justice Montgomery.

INDICTMENT for barn-burning, tried before Graham, J., and a jury, at January, 1895, Special Term of Lenoir Superior Court. The defendant was convicted and appealed from a refusal of his motion in arrest of judgment for defects in bill of indictment.

<p>INDICTMENT, under Section 991 of The Code, tried before Holce, Jand a jury, at October Term, 1895, of Robeson Superior Court. The defendants were convicted of receiving two dollars for releasing two offenders, who had been arrested on the warrant of a justice of the peace, by the defendants as special constables. Defendants appealed from the judgment of the court sentencing them to an imprisonment in State Penitentiary for five years.</p>

PROCEEDING in bastaedy, commenced before a justice of the peace, charging the defendant with being the father of her unborn bastard child. The defendant was acquitted, and the prosecutrix appealed to the Superior Court. This case, on appeal, came on for trial at August Term, 1895, of Iredell Superior Court, before his Honor, Nor-wood, J., and a jury. In said court the defendant entered the plea of former acquittal and not guilty.

■ INDICTMENT for violation .of town ordinance, tried before Brown, J., at March Term, 1896, of McDowell Superior Court.

CRIMINAL action for bastardy, tried before Norwood,. The prisoner was arrested on a warrant ekaiging bastardy, issued by a justice of the peace in Wentworth township. Prisoner applied for removal of the case upon affidavit in due form. Although there were at the time-other justices of the peace in Wentworth township, the justice transferred the case to a justice resident in Leaks-ville township, adjoining Wentwoith.

INDICTMENT for i esisting an officer, tried before Robinson, J., at tbe December Term, 1895, of the Superior Court of Bioiimond County. Before pleading, the defendant moved to quash the bill of indictment for the reason that it failed to allege the office W. L. Covington (the officer alleged to have been resisted) held.

CRIMINAL action, for the violation of a town ordinance, tried before Brown, A warrant was issued by the mayor of the town of Marion upon the following complaint, sworn to by J. M. Patton, the marshal of the town : “ That J. L. Clay did, on the 12th day of October, 1895, abuse J. M. Patton by calling him a coward and challenging him to enter into a fight, (the said J. M. Patton being marshal of the town of Marion, N. C., and in the execution of his office at that time,) in…

INDICTMENT, for assault with deadly weapons, tried before Bryan, J., at Fall Term, 1895, of Caldwell Superior Court. It appeared from the evidence that about dusk, on a certain evening, the defendants Jones, Ringle and Mask, went to the house of one Minnie Moose; that defendant Jenkins was sitting in the door when they arrived.

INDICTMENT, under Section 1062 of 'The Oode, tried before Fwart, J., and a jury, at January Term, 1896, of Hat-wood Criminal Court. The facts are stated in the opinion of Associate Justice Fueohes. The defendant was convicted and appealed.

<p>INDICTMENT for assault and battery, tried before Ewart, J., at January Term, 1896, of the Criminal Circuit Court of Haywood County.</p>

INDICTMENT EOR MURDER, tried at February Term, 1896, . of the Criminal Circuit Court of Madison County, before Ewart, J. The defendants were convicted of murder in the second -degree and appealed. The facts appear in the opinion of the Court.

INDICTMENT for slander of an innocent woman, tried before Sobinson, T, at Pali Term, 1895, of Swain Superior Court. There was evidence of slanderous words spoken by-defendant concerning prosecutrix, amounting to a charge of incontinence. Defendant offered evidence tending to prove that prosecutrix was not an innocent woman when he used the language charged.

<p>Justices of the Peace — Supervisors of Soads — Duties of in Respect to Roads — Neglect of Duty — Overseer of Roads.</p> <p>The Code (sections 2014 and 2024) imposes upon the justices of the peace, as supervisors of roads in their respective-townships, the duty of dividing the roads into sections, appointing overseers, allotting hands to the overseer, &c., hut does not require them to put and keep the public roads in order, it being the duty of the overseer to superintend the hands and to put and keep the roads in order ; hence,</p> <p>2. An indictment does not He against justices of the peace for failing to put and keep public roads in order and, if preferred against them, should be quashed.</p>

<p>Indictment for Larceny — Evidence—Incompetent Testimony.</p> <p>1. It is a rule of evidence, subject to but few exceptions, that evidence of a distinct substantive offence cannot be admitted in support of another offence.</p> <p>2. In the trial of an indictment for larceny of money given to the prosecutrix by defendant, it was error to admit evidence that defendant had seduced her under a promise of marriage, such evidence not showing that defendant had been compelled to give her the money on account of the seduction, or that he gave it to her grudgingly or unwillingly. Nor in such case was evidence admissible as to defendant’s inability (he being a married man) to make good his promise of marriage.</p>

INDICTMENT for unlawfully selling liquor on Sunday, tried before Ewart, L, and a jury, at October Term, 1895, of tha Criminal Circuit Court for IIendekson County.

CRIMINAL action, prosecuted by J. EL Stepp against J. A. Taylor, the defendant. A warrant was issued, upon the complaint of J. IT.

This was an INDICTMENT for assault and battery with a deadly weapon upon one James West, tried before Ewart, J., and a jury, at February Term, 1896, of MadisoN Criminal Court.