Volume 119 — North Carolina Reports

AotioN by 0. E. Kramer and others against James Y. Old, 'W. T. Old, W. N. Old and the Elizabeth City Manufacturing Company, to enjoin defendants from engaging in the milling business in Elizabeth City, pending in Pasquotanic Superior Court, and heard before Tiniberlake, J., at Chambers, at Currituck Court House, on 7 th September, 1896, on motion to continue the restraining order theretofore granted. His Honor found the following facts : “1.

Civil actioN, tried before Timberlahe, Janda jury, at Fall Term, 1896, of PasquotaNic Superior Court. The nature of the action and pleadings appears in the opinion of Associate Justice Aveey. After the jury had been empaneled, the pleadings were read. The court then directed the plaintiff to proceed with his case. The plaintiff then announced that he rested his case on admissions in pleadings.

<p>Practice — Judgments in fieri During Term of 'Court— Discretionary Power of Judge to Extend Time for Filing Pleadings.</p> <p>1. Any order or decree made during a term of court is in fieri, and subject to be vacated or modified during such term.</p> <p>2. The exercise of the discretionary power of a court to extend time for filing pleadings is not reviewable.</p>

Petition to reliear the case between same parties, decided at February Term, 1896, and reported in 118 N. C. Reports, at page 30. The petition was as follows: “ The petition of Lovey Nicholson, the plaintiff in the above action, respectfully shows to the Court: “ 1.

Civil actioN, tried before Graham, J'., said a jury, at May Term, 1896, of Beaueoet Superior Court. There was a verdict for the plaintiffs, and from the judgment thereon the defendants appealed. The facts appear in the opinion of Associate Justice Eueohes.

Civil actioN, pending in Beaufort Superior Court, for an injunction and the appointment of a receiver, etc., and beard before Boykin, J., at Chambers, in Washington, N. C., at May Term, 1 895, of Beaufort Superior Court. His Honor continued the restraining order theretofore granted by Brown, J., and ordered an account, and appointed a receiver, and defendant appealed. The facts appear in the opinion of Associate Justice Furches.

Civil aotioN, tried before Boykin, J., and a jury, at Fall Term, 1895, of Beaufort Superior Court. From a judgment for the plaintiff the defendants appealed. The facts and assignments of error appear in the opinion of Associate Justice Montgomery.

CONTROVERSY, submitted without action, and beard before Timberlake,at Spring Term, 1896, of Beaufort Superior Court.

OivrL actioN, tried before Robinson, Jand a jury, at Spring Term, 1896, of PekqueuaNS Superior Court. Th,e facts appear in the opinion of the Chief Justice.

Civil aotioN, tried at Spring Term, 1896, of Tyrrell Superior Court, before Robinson, J., and a jury, on appeal from a judgment of a Justice of the Peace. There was a verdict for the defendant, and from the judgment thereon plaintiff appealed. The facts appear in the opinion of MONTGOMERY, J.

This is ail action by the State on the relation of the Solicitor of the district to vacate an oyster-bed entry under the Acts of 1893, Chapter 287, Section 4, pending in Pamlico Superior Court.

Civil aotioN, for the foreclosure of a mortgage, tried before Robinson, N., at September Term, 1896, of WabebN Superior Court, a jury trial being waived. The pertinent facts appear in the opinion of Chief Justice Faikoloth. His Honor held that the probate of the mortgage upon which the plaintiff relied was void, and that the instrument had not been legally admitted to registration. There was judgment for defendant Richardson, and plaintiff appealed.

MotioN, on behalf of the plaintiffs, to confirm a sale of certain real estate, heard before Bryan, resident Judge of the Second Judicial District, at Chambers, in Newbern, on the 22nd day of September, 1896, said sale having been made under a judgment rendered in the action at Spring Term, 1896,.of Craven Superior Court, which contained the following clause: “ And it is further ordered, by consent, that in case of a sale the Commissioner shall report the same to the resident…

<p>Action to Set Aside Fraudulent Conveyance — Fraudulent Conveyances— Presumption — Relationship of Parties to Peed — Badges of Fraud — Instructions.</p> <p>1. If a transaction is secret and exclusively between near relations, the law imposes upon an insolvent member of the family who disposes of his property under such circumstances the burden of rebutting the presumption of bad faith.</p> <p>2. In the trial of an action to set aside a deed of assignment as fraudulent it was not error to instruct the jury that the purchase of a stock of goods at an assignee’s sale by a brother of the assignor, and the placing them in the hands of another brother who was insolvent, and whose transactions in connection with the stock of goods both before and after the assignment were suspicious, were badges of fraud, since these circumstances, together with his near relationship to all the parties, tended to show the purchaser’s entrance, after the assignment, into a conspiracy which had been formed by other members of the family, including the assignor, in contemplation of a fraudulent assignment of the property.</p>

This was a civil action, in the nature of a general creditor’s bill, tried before Graham, J., and a jury, at February Term, 1896, of Craven Superior Court. The summons was issued December 29, 1894, returnable to February Term, 1895, and complaint was filed at date of issuing summons ; Jacob Pizer was made party defendant in said summons and complaint, but service was not then made upon him.

Civil actiok, tried before Graham, J., at Spring Term, 1896, of CkaveN Superior Court. The defendant administrator had sold certain land of his intestate for the payment of debts, and held the proceeds, out of which the plaintiff sought by this action to have paid his judgment rendered and docketed against the decedent in his lifetime.

Civil actioN, instituted by the plaintiff, to enforce the lien of a chattel mortgage, tried before Graham, J., at May Term, 1896, of Craver Superior Court.

Civil actioN, commenced before a Justice of the Peace, for the recovery of $44.98, alleged to be due as damages fox-breach of contract of a lease of certain property in the city of Newbern, heard on appeal before' Craha.m, Upon the facts found, his Honor found as a conclusion of law that the plaintiff was entitled to recover $11.98, with interest from the 1st day of March, 1896, and from the judgment therefor the defendant appealed.

This was a oivil action, heard before Graham, J., at Halifax Superior Court, March, 1896, on appeal from judgment of a Justice of the Peace. A jury trial was waived. The plaintiff claimed $13.05 for work and labor done for defendant. The defendant set up counter-claim for $15.30 for services of themselves and twenty hands in putting out fire which the defendant alleges was ignited by the carelessness of the plaintiff while cutting lumber in woods for defendants.

Oiviu agtioN, heard on case agreed before Boykin, J., at Special Term, 1896, of Bertie Superior Court, on appeal from a judgment of -Justice of the Peace. There was judgment for the plaintiffs and defendant Mebane appealed. The facts sufficiently appear in the opinion of Associate .Justice Montgomery.

<p>Devise — Construction of Will.</p> <p>A devise to “ S. and all her children, if she shall have any,” vests in S. a fee-simple if she has no children of S. at testator’s death; and such estate cannot be divested by the subsequent birth of a child ; if she have children at testator’s death, she and they take as tenants in common.</p>

Civil aotioN, to recover land, tried before Boykin, J., and a jury, at Spring Term, 1896, of Nash Superior Court. The usual issues were submitted, and as the main issue depended upon the validity of a certain mortgage through which defendants claimed title, his Honor held that the description of the land was so vague and indefinite as to render the instrument void, and that it could not be aided by parol testimony.

MotioN by defendant to set aside a judgment rendered at January Term, 1896, of Pitt Superior Court, by Boykin, J'., heard before Graham, J., at Chambers, in Williamston, on September 16, 1896. The motion was granted and plaintiif appealed. The facts are sufficiently stated in the opinion of Chief Justice Fairoloth.

<p>Civil ACTION, tried before Boykin, J"., and a jury, at April Term, 1896, of Pitt Superior Court.</p> <p>The complaint alleged that T. J. Stancill was administrator of the estate of "Wiley Stancill, and that Cf. E. Taft and R. E. Mayo were sureties on his bond ; that a judgment was obtained against the principal and sureties on said bond, which was paid by the sureties; that, prior to the recovery of said judgment, T. J. Stancill, for the purpose of defrauding his creditors, executed voluntary conveyances of his land to certain of the defendants, who were his children ; that,"after the payment of the judgment by the sureties, T. J. Stancill executed to them a mortgage to secure its repayment on the land previously conveyed to defendants, and on certain personal property which ha.s since become destroyed, or has passed out of existence. Plaintiffs prayed judgment setting aside the voluntary conveyances, and declaring their claim a lien on the lands, and that they be subrogated to the rights of the plaintiffs in the judgment which they had paid.</p>

<p>Partnership — Trust—Individual Indebtedness of Partner to Partnership.</p> <p>1. While, as to matters pertaining to the partnership business, each partner is a trustee for the partnership, such relation is not created between the individual partners as to transactions not connected with the partnership business.</p> <p>2. Where a partner with the knowledge and consent of the other partner used the firm’s money to pay for improvements on his own land, charging himself with the money upon the books of the firm, he became the individual debtor of and not a trustee for the firm, and the other partner cannot follow the fund and have it declared a lien upon the improvements.</p>

<p>Motion to Reinstate Appeal — Appeal—Dismissal—Failure to Print — Negligence of Appellant.</p> <p>1. A motion to reinstate an appeal dismissed for failure to print will not be granted when it appears that the judgment appealed from was rendered on August 24th; that the clerk was directed on October 1st to make transcript and to send it up by express on 10th October ; that it reached this Court and was docketed on 12th October, with two other cases ; that when it was called for hearing' on 13th October the record was not printed, although the other cases accompanying it had, through the care of the appellants therein, been printed and were argued.</p> <p>2. Printing the record on appeal, as required by the rule of Court, is the duty of the appellant, and neglect to have it done is his fault and not that of his attorney.</p>

<p>Practice — Supplemental Proceedings — Receiver.</p> <p>1. Where supplemental proceedings had discovered that the defendant held, partly in money and partly in choses in action, a specific fund which, in a suit brought for the purpose, the jury had found to belong to the plaintiff, and for the recovery of which the plaintiff had judgment according to the verdict, and the clerk by his order forbade the transfer of the securities and money and directed the defendant to pay over the same to the plaintiff, it was error in the judge on appeal, after approving the findings of fact by the clerk, to reverse the latter’s order and appoint a receiver to take charge of the fund until the plaintiff should institute an action to recover the specific fund.</p> <p>3. In such case, as soon as the supplemental proceedings had disclosed the existence of the fund in the defendant’s hands which had been adjudged to belong to plaintiff, it only remained for the clerk to order the delivery of the fund to the plaintiff and to compel obedience to the order by attachment for contempt.</p> <p>3. The old equity practice of granting a restraining' order in one action until another can be brought between the same parties is foreign to the present Code system under which the court, when possessing jurisdiction of the parties and subject-matter, will proceed to administer all rights of the parties pertaining to the subject-matter.</p>

ArnoN ok claiM and delivkRY, tried before Mcloer, and a jury, at the March Term, 1896, of Wake Superior Court. The action was commenced in a magistrate’s court, and a claim and delivery was had for the possession of a “two-horse phaeton with driver’s seat in front” aud a “ single-horse wagon,” which were articles of personal property mentioned in a certain chattel mortgage made by the defendant to the plaintiff to secure a note of $100. The mortgage was put in evidence.

This was a civil aotion tried at February Term, 1896, of Wake Superior Court, before McToer, The defendant, C-.

<p>Action for Penalty — Qui Tain Action — Party Plaintiff —Tax on Fertilizers — Constitutionality — Interstate Commerce.</p> <p>1. In an action for a penalty the person suing therefor is the proper party plaintiff unless the statute directs otherwise.</p> <p>2. Under Sections 2190, 2191 and 2198 of The Code, requiring each sack of fertilizer sold to have a tag attached and affixing- a penalty for non-compliance therewith, to be recovered by any one suing therefor, the person suing for the penalty, and not the Department of Agriculture or the State, is the proper party plaintiff.</p> <p>3. A statute providing for the recovery of penalties by private persons is not in conflict with Section 5 of Art. IX. of the Constitution which appropriates the net proceeds of all fines and penalties to the School Fund. (Sutton v. Phillips, 116 N. C. 502, followed.)</p> <p>4. The statute (.Sections 2190, 2191 and2193 of The Code) requiring each sack of fertilizer sold in this State to have a tag affixed thereto is not in violation of clause 3 of Section 8 of Article I. of the Constitution, relating to interstate commerce.</p>

CoNtroversy without action, heard upon facts agreed before BoyTcin, J., at Chambers, on 3rd day of October, 1896. The affidavit required by Section 567 of The Code was not made or filed. Judgment was rendered against the party named as defendant, and he appealed.

MotioN to remove the cause to another county for trial, for that the action was brought, in the wrong county, contrary to Section 193 of The Code, heard before Mclver, J., at February Term, 1896, of Wake Superior Court.

MotioN to dismiss appeal, taken from a judgment rendered for the defendant at April Term, 1896, of Wakh Superior Court The plaintiff appellant, deeming certain parts of the case on appeal as settled by counsel tobe immaterial and unnecessary to the proper presentation of his assignments of error, omitted them in printing the record. In this Court the appellee, deeming such omitted parts to be material to the hearing on appeal, moved to dismiss under Rule 30. Motion granted.

Civil aotioN, tried before Mclver, J., and a jury, at February Term, 1896, of Wake Superior Court. The facts are sufficiently stated in the opinion of Associate Justice Montgomery. There was judgment for plaintiff, and defendant appealed-

Civil actioN, commenced in Edgeoombe County Superior Court, against C. W. Jeffreys and J. 0. Powell, April 4, 1893 ; and at April Term, 1893, of said court, H. L. Staton, Assignee of C. W. Jeffreys, and in his own right, and Geo. Howard and Donnell Gilliam came into court and by consent were made parties defendants, At October Term, 1895, J. T. Howard was permitted to interplead.

<p>Civil actioN, for damages, heard on demurrer ore tenus before Mclver, I., at February Term, 1896, of Vaki Superior Court. The demurrer was sustained, and plaintiff appealed. The nature of the action and grounds of demurrer are set out in the opinion of Associate Justice MONTGOMERY.</p>

<p>Practice — Foreclosure Sale — Compensation of Commissioners — Commissions, When Wot Allowed.</p> <p>1. Trustees and commissioners to sell land under judicial order (other than in partition proceedings) are not allowed commissions, either by statute or common law, but only such just compensation for time, labor, services and expenses as the circumstances of each case warrant.</p> <p>2. Where, in foreclosure proceedings, commissioners were appointed to sell land, and the decree provided that they should receive 6 per cent, commissions, and pending an advertisement of the sale the plaintiff agreed to sell the land privately to the defendant for $2,400, and such 'private sale was reported to and confirmed by the court; Held, that it was error to allow 5 per cent, commissions to the commissioners, and the decree making such allowance will be modified so as to provide for reasonable compensation for the time, services and expenses of the commissioners.</p>

Proceeding under Section 7, Oil. 159, Act 1895, for a rule upon tlie defendant, Clerk of Superior Court of Durham county, to provide a separate ballot box at each precinct for the election of justices of the peace, heard before Montgomery, Justice of the Supreme Court. The order for an additional ballot box was denied and plaintiff appealed to the full'bench.

ActioN of claim and delivery, tried at July, 1895, Special Term of Guilford Superior Court, before Boyhin, B., and a jury. The action was brought by the plaintiffs, claiming to be the owner and to have right of recovery of the property named in the complaint, under a bill of sale made to them by one L. F. Ross.

Civil action, tried before Coble, J., anda jury, at April Term, 1896, of Ghanville Superior Court. From a judgment for the plaintiff the defendant appealed. The facts appear in the opinion of Associate Justice Eubohes.

Speoial PROCEEDING, pending before the Clerk of the Superior Court of Chatham: County, and heard before Graham, J., at Chambers, in Oxford, on June 23, 1896, on exceptions to the report of the Clerk as referee. From a judgment overruling the exceptions the plaintiffs appealed.

Civil aotion, tried before JBoyTein, J., and a jury, at July Special Term, 1896, of Guilbobd Superior Court. The action was for the recovery of an “inspecting machine” and damages for its detention by the defendant corporation, the successor of a corporation of the same name, with which plaintiff claimed to have left the machine with a view to selling it.

<p>Civil action, beard on appeal from a judgment of a Justice of the Peace, before Coble, J., at March Term, 1896, of Durham Superior Court. After all the evidence was in, it was agreed that a jury trial should be waived, and that the court might find the issues of facts and conclusions of law.</p> <p>The court found the following facts:</p> <p>“ 1. That one of the plaintiffs, J. R. Lindsay, had been in the employ of the defendant Company. That the said Lindsay went out of the employ of the defendant Company some time in June or May, 1895.</p> <p>“ 2. That the said J. R. Lindsay received the following telegram:</p> <p>“Hartford, Conn., August 26th, 1895.</p> <p>“ To J. R. Lindsay:</p> <p>“ Better come here any day this week.</p> <p>“ RODNEY DENNIS, See’y.”</p> <p>“ 3. That the said Lindsay replied in the following telegram :</p> <p>“ Yorkville, S. 0., 8, 26, 1895.</p> <p>“ To Rodney Dennis, Seety., Hartford, Conn.:</p> <p>“I do not feel justified in coming to Hartford at my own expense. The whole subject could be so much better discussed here, and I request that you send a representative here. Please arrange an interview without delay. Answer.</p> <p>“ (Signed.) J. R. LINDSAY.”</p> <p>“4. That the said Lindsay received the following telegram, dated at Hartford, Aug. 27, 1895 :</p> <p>“ You may come to Hartford at Company’s expense.</p> <p>“ RODNEY DENNIS, Sec’y.”</p> <p>“ 5. That the said Lindsay, in consequence of receiving the last telegram, went to Hartford, Conn.</p> <p>“ 6. That Rodney Dennis was Secretary of the defendant Company.</p> <p>“ 7. That his expenses were $91.40, which has not been repaid to him. That he demanded $91.40 from the Company. That while in Hartford, Conn., the said Lindsay received the following letter : ” (Letter is set out in the opinion.)</p> <p>“ 11. That the assignment to Ballard was made for the purpose of bringing suit in this State. It was made in good faith.”</p> <p>The court’s conclusion of law and judgment was as follows :</p> <p>“ That the defendant, The Traveler’s Insurance Company, is indebted to the plaintiff in the sum of $91.40.”</p> <p>“ To this conclusion of law the defendant excepted, and appealed therefrom to the Supreme Court, gave due notice, &c., and assigned as error :</p> <p>“ (a.) That the court’s finding of fact shows the object of the plaintiff Lindsay’s trip to Hartford, Conn., was to adjust matters of controversy between him and the defendant Company, and that such purpose was the consideration of the promise to pay expenses in the telegram marked exhibit ‘ A’, and when J. R. Lindsay refused to confer with the officers of the defendant, as defendant contends, shown in the letter of September 4, 1895, he lost his right to demand payment of his expenses.</p> <p>“ (b.) That upon all the facts found by the court, the conclusion of law is erroneous, because the most favorable view to the plaintiff Lindsay does not entitle him to recover against the defendant.”</p>

Civil actioN, tried before Oóble, J., at March Term, 1896, of Durham Superior Court. A jury trial was waived, and his Honor, upon the facts found, gave judgment for the plaintiff, and the defendant appealed. The essential facts are stated in the opinion of Associate Justice Montgomery.

Civil actioN, begun in a court of a Justice of the Peace, and tried, on appeal, befme Mclver, J., and a jury, at July Term, 1896, of GbaNville Superior Court. After the evidence was in, his Honor intimated his opinion that there was not sufficient evidence of the alleged partnership betweén R. T. Smith and the defendant (whom the plaintiff sought to hold liable) to be submitted to the jury, and that he would therefore instruct the jury to return a verdict for the defendant.

Civil action, tried before Goble, J., at Spring Term, 1896, of Ghanvtlle Superior Court, on appeal from the refusal of a Justice of the Peace, upon the dissolution by him of the warrant of attachment, to order the attached property to be restored to the defendant.

<p>Practic — Entry of Verdict by Olerk — Entry of Judgment — Judgment .Nunc ^pro Tunc.</p> <p>1. A clerk of the court may toy consent receive a verdict, even if the judge is notin the court room, provided it is done before the expiration of the term ; and he may thereupon enter a valid judgment under Code, Section 412 (1), or make a memorandum thereof and afterwards write it out in full.</p> <p>2. But where the clerk, having by consent received a verdict at 11.40 o’clock Saturday night of the last week of'the term, failed, in the absence of the judge and for lack of other direction by him, to enter judgment or memorandum thereof in accordance with the verdict that night, but entered judgment on the following Monday morning, and after the expiration of the term ; Held, that the judgment so attempted to be entered was a nullity.</p> <p>3. In such case, the judgment being a nullity, an appeal therefrom could not operate as a vehicle to remove the record so as to subtract it from the operation of legal orders of the trial judge at the next term.</p> <p>4. Where a verdict was, by consent of the parties, but in the absence of the judge from the court room, received by the clerk on the last day of court, b"t no judgment was entered, it was proper for the judge at the next term, finding the record complete up to and including the verdict, to render judgment nunc pro tuno, and it was not necessary to the validity of the judgment that notice of its entry should be given, since the cause was pending on the docket.</p> <p>5. A judgment rendered nunc pro time, at a term of court succeeding that at which the record was complete up to and including verdict, is as operative, as between the parties, as if it had been rendered at the previous term, but, as to other parties, it is effective, as a lien, only from the first day of the term at which it was actually entered.</p> <p>6. Where the defects in tobacco, sold with representations as to its grade and quality, are latent and peculiarly within the knowledge of the seller, the fact that the buyer has an opportunity to inspect it, and does not do so fully, is no waiver of the warranty.</p>

Civil action, tried at November Term, 1895, of Gean-ville Superior Court, before Starbuolc, J., and a jury. Held: and ordering issuing of $40,000 of bonds).

Aotion to recover laud, tried at April Term, 1896, of Gkakvillk Superior Court, before Coble, J., and a jury. The facts appear in the opinion of Associate Justice MONTGOMERY. The jury, under instruction of his Honor, rendered a verdict for the defendant, and from the judgment thereon plaintiff appealed.

Civil action, tried at March Term, 1896, of Durham Superior Court, before Coble, J., and a jury. The purpose of the action was to obtain instructions of the court as to the application of the devise made in item 2 of the last will and testament, of plaintiffs’ testator. The sixth paragraph of the petition was as follows : “ 6.

<p>Civil aotioN, begun on 21st June, 1S95, and tried before Starbudk, I., at November Term, 1895, of Geanville Superior Court. The purpose of the action was to recover from the defendant twice the amount of interest paid, as provided in Section 3836 of The Code, the plaintiff alleging- usury. The defendant denied each material allegation of the complaint, and also set up the bar of the Statute of Limitations to plaintiffs’ action as contained in said section of The Code. The defendant also asserted a counter claim against plaintiffs, alleging that the latter were indebted to it in the sum of $1,798.88 on account of money theretofore loaned by it to plaintiffs. To this the plaintiffs replied that said counter-claim was founded on an usurious agreement, whereby plaintiffs agreed to pay to defendant interest upon its said loan in excess of the legal rate.</p> <p>A jury trial was waived, and his Honor found the following facts:</p> <p>“ That plaintiff applied to defendant for loan of $2,500 June 23,1892, and to secure said loan, agreed to be advanced him, (the plaintiff,) on July 2, 1892, executed his bond to defendant in thé sum of $5,000 secured by deed of trust of same date, executed by himself and wife to defendant. That of the money, $2,500 which defendant agreed to advance plaintiff, only the sum of $2,305, was actually received by plaintiff on July 20, 1892 The balance of $2,500 was reserved by .company and applied as follows : $50 for membership fee for 50 shares of stock which plaintiff was required to subscribe for as condition upon which to obtain his loan ; $127.50 in payment of three monthly installments in advance (mentioned in bond, marked Exhibit X), $2.50 exchange on clerk, and $15 Another charges .and expenses. That plaintiffs, beginning with November, 1892, made regular payments of $42.50 to the defendant each month til] some time during 1893, when he fell behind two months in his payments, and continued paying on the regular payments, remaining two months behind, until August 3, 1894, when he made his last payment, having made in all 20 payments of $42.50 each. That of these payments 13 were made within two years prior to the beginning of this action — action having begun June 21, 1895. That within said two years the plaintiff also paid to defendant the sum of $20, charged against him 'as fines on delinquent payments, and $5 of fines previous to June 21, 1893. That of each monthly payment $12.50 was applied by defendant as interest, and this was done to the knowledge of the plaintiff. That on May 5,1894, the defendant had so applied payments made by plaintiff as to show that plaintiff was indebted to defendant in the sum of $1,798.85, as of that date according to and in consequence of such application of payments. That the total amount of interest paid within two years prior to the beginning of the action was $162.50. That said interest was infected with usury. That the total of all sums paid by the plaintiff was $875, including fines. That the plaintiff and his wife, Mollie T. Smith, executed the said bond, and to secure the same executed the said deed of trust on land which was the separate estate of Mrs. Smith. That the money borrowed, for which said bond was given and to secure which said mortgage was executed, was borrowed and used by the plaintiff, R. T. Smith, and not for the benefit of Mollie T. Smith or her estate.</p> <p>“ That in May, 1895, R T. Smith went to the office of B. S. Royster, who was the local secretary and treasurer of the defendant, and who was one of the trustees in the said deed of trust, and there offered to pay the said Royster the sum of $1,600, which the said Smith claimed was all that was due, Smith stating to Royster that the money was in the bank and he was ready to pay it. Koyster declined to receive it, stating that he had no authority. That Smith did not have the money on his person at the time, but had it at his command in the bank, which was in the same building. That at that time there was due the sum of not less than $1,700.”</p> <p>Upon the foregoing facts and exhibits, his Honor concluded :</p> <p>“I. That the transaction of May, 1895, between the plaintiff Smith and B. S. Royster, did not amount to a tender.</p> <p>“ II. That the plaintiffs are entitled to recover of the defendant the sum of $325, being double the amount of interest paid within the two years prior to the beginning of the action.</p> <p>“ III. That the defendant has forfeited all interest upon the amount.</p> <p>“ IY. That the defendant is entitled to judgment against the plaintiff, R. T. Smith, for the sum of $1,105, being the amount actually received by the plaintiff, viz., $2,305, after deducting the total of all payments made, viz., $875 and the sum of $325, the last sum being the double of the interes1 paid within the two years prior to the beginning of the action.</p> <p>“ Y. That the defendant is entitled to have foreclosure of the land conveyed by the deed of trust.”</p> <p>His Honor therefore adjudged : “ That the defendant, Old Dominion Building and Loan Association, recover of the plaintiff, R. T. Smith, the sum of $1,105 and interest at the rate of six per cent, per annum from this term.</p> <p>“ That the plaintiffs recover the costs of the action up to and including this Term. It is decreed that A. J. Field be and he is hereby appointed commissioner to sell the land described in the deed of trust, which is made a part of the findings of fact in this canse. That the plaintiffs are allowed until May 20, 1896, to satisfy the defendant’s judgment. That if the judgment is not satisfied within that time the said commissioner shall advertise the said land according to law for 30 days, and sell the same at public auction at the court house door in Oxford to the highest bidder for cash, and shall make report to the ensuing term of this court.”</p> <p>From the above judgment both the plaintiff and defendant appealed.</p> <p>The defendant’s exceptions to his Honor’s conclusions of law and to the judgment thereon were as follows :</p> <p>“ 1st. That his Honor’s conclusion that plaintiffs are entitled to recover of defendant $325, being double the amount of interest paid within the two years prior to the beginning of the action, is erroneous in law.</p> <p>“ 2d. That his Honor’s conclusion that the defendant has forfeited all interest upon the debt is error in law.</p> <p>“ 3d. That the defendant is entitled to judgment against the plaintiff, R. T. Smith, for the sum of $1,105, being the ■ amount actually received by the plaintiffs, (viz., $2,305,) after deducting the total of all payments made, (viz., $875,) and the sum of $325 — the last sum being the double of the interest paid within the two years prior to the beginning of the action — is error in law.</p> <p>“ 4th. That the defendant is entitled to judgment against the plaintiff, R. T. Smith, for the sum of $1,105 only is error in law.</p> <p>“ 5th. That the plaiutiffs recover the costs of the action is error in law.</p> <p>“ 6th. That the order or judgment appointing A. J. Eield, Esq., a commissioner to sell the land conveyed in a deed in trust, there being trustees named in said deed for that purpose, is error in law.”</p>

<p>Civil aotioN, tried before Starbuok, </., at November Term, 1895, of Gkanville Superior Court. The purpose of the action, the facts found by his Honor, (by consent ajmy trial being waived,) conclusions of law thereon and the judgment fully appear in the repoit of the defendant’s appeal in the same case (ante).</p> <p>The plaintiff excepted to his Honor’s conclusions of law upon the facts found by him, and to his judgment thereon, as follows, to-wit :</p> <p>“ 1. For that he finds as a fact that plaintiff paid defendant $20 by way of fines within two years, but does not allow a double recovery therefor.</p> <p>“ 2. For that the conclusion of law that plaintiff is indebted to defendant in the sum of $11.05 is erroneous.</p> <p>“ 3. For that his Honor found that there was no tender, whereas the facts found by his Honor show the contrary.”</p> <p>The plaintiff also contended : (1) That the defendant is not entitled to set up by way of counter-claim the matters set forth in his answer as such. (2) That in an action to recover a penalty given by the statute no counter-claim is allowable, as such action is given bylaw to correct or punish the party who violates the Statutes of Usury. (3) That the cause of action upon which this suit is brought is not barred by the two years Statute of Limitation, nor will it be until two years after the payment in full of the indebtedness set out in the answer and counter-claims of the defendant.</p>

Civil aotioN, tried before Goble, “ J. A. Jones, being duly sworn, complains and saya that at and in said county, and in Raleigh township, on or about the 6th day of July, 1895, J. S. Durham did unlawfully and willfully, knowingly and designedly, by means of false representation, obtain ice from J. A. Jones and A. M. Powell, trading as Jones & Powell, with intent to cheat and defraud Jones & Powell of the said ice, saying that he would retain a certain part of the proceeds…

<p>Civil ACTION, heard on motion in the cause, before Star-buck, J., at Spring Term, 1896, of ONslow Superior Court. His Honor found the following facts :</p> <p>“ That this cause was called for trial on Saturday of the Pali Term of Onslow Superior Court, being the last Saturday of the term.</p> <p>“ That the verdict in this cause entered on the Minutes of the Fall Term was returned and received between the hours of 2 a. m. and 3 a. m. on Sunday.</p> <p>“ That the judgment, purporting to be a final judgment, rendered in this cause and appearing on the Minutes of said term, was rendered between the hours of 2 a. m. and 3 a. m. on said Sunday.</p> <p>“ That the said verdict and judgment appear on the Minutes of the said term as having been returned and rendered on Saturday.</p> <p>“ That the defendant did not consent to but objected to the reception of the verdict and rendition of judgment, contending that the term had expired.”</p> <p>After hearing argument of counsel for the plaintiffs and the defendant, the court was of the opinion that the said Fall Term expired on Saturday night at 12 o’clock, prior to the return of the verdict and rendition of the judgment.</p> <p>It was therefore ordered “that the Minutes of the said Fall Term be amended, nunc pro tunc, so as to show the facts, viz.: That the said verdict was returned and the said judgment rendered on the. said Sunday, November 10, 1895.</p> <p>“It is considered and adjudged : That the said verdict and judgment are void, and it is ordered that this cause be placed on the Civil Issue Docket for trial.”</p> <p>The facts so found were not controverted, but were admitted by plaintiffs to be corrrect.</p> <p>To the order on such facts the plaintiffs duly excepted and appealed.</p>

Civil aotioh, to recover $130 and interest, due by note alleged to have been executed by defendant to the plaintiff, tried on appeal from a Justice of the Peace by Starbuch, J., and a jury, at May Term of LeNOib Superior Court. The defendant pleaded infancy in avoidance of the note.

Motion beard before Graham, J., at September Term, 1895, of Pbndbk Superior Court, to set aside a judgment rendered at the March Term, 1894, the sale made thereunder and decree confirming the sale. Upon the hearing of the motion the following facts were found : “ 1.

Civil actioN, tried on appeal from a judgment of a Justice of the Peace, before Goble, L, and a jury, at August Term, 1896, of DupliN Superior Court. The facts appear in the opinion of Associate Justice Fueohes. His Honor, on the verdict in favor of the plaintiffs, rendered judgment directing the lien on the boiler in favor of the plaintiffs to be enforced as a superior lien to that of the mortgagee, and the defendant Williams alone appealed.

<p>Estoppel in Pais — Bona Eides.</p> <p>The owner of land who aids another to obtain a loan by mortgage thereon as the latter’s property, and uses language calculated and intended to induce the lender to believe that he has no title to the property, and that the borrower is the owner, is estopped to deny that the borrower is the true owner, the lender having no notice, actual or constructive, that the title is not in the borrower.</p>

Civil actioN,-tried before Graham, J., and a jury, at October Term, 1896, of SAMPSON Superior Court, on appeal from a judgment of a justice of-the peace. The judgment rendered in the superior court was as follows : “The jury having found the issue as follows: Is the defendant indebted to plaintiff, and if so, in what amount?

<p>Judgment— Verdict — Agreement.</p> <p>Where, on the trial of an action by a trustee to recover church property, the parties agreed that the answer as to the single issue submitted, as to whether the trustee was the owner and entitled to the possession, should settle the whole controversy and all the issues raised by the pleadings, and that the answer should be “ Tes ” if certain facts were true ; otherwise it should be “No,” and the jury answered “No;” Held, that the verdict, being in accordance with the stipulation, justified a judgment for the defendant.</p>

Civil ACTION, tried on exceptions to report of referee, before Coble, </., at August Term, 1896, of G-keeNE Superior Court. Both parties appealed. The facts are stated in the opinion of Chief Justice EaiRoloth. (For a former report of case between the same parties, involving substantially the same facts, see 117 N. C., 259.)

Civil ACTION, tried before Starbuck, J., at Spring Term, 1896, of Gkbenb Superior Court. There was judgment for the plaintiff, and defendant appealed. The facts appear in the opinion of Chief Justice Faikoloti-i.

Civil actioN, tried before Starbuok, J., at January Term, 1896, of New HaNoveR Superior Court. By consent a jury trial was waived, and his Honor found the facts, which are substantially set out in the opinion of Associate Justice Montgomeby. There was judgment for the plaintiff, and the defendant appealed.

Civil ACTION, tried before Starbuck, J., at January Term, 1896, of New Hanovee Superior Court. The facts áppear in the opinion. From a judgment for. the plaintiff the defendants appealed.

<p>Practice — Appeal—Case on Appeal — Agreement of Counsel — Service of Case on Appeal.</p> <p>1. The legal mode of service of a case on appeal is not waived by an agreement of counsel for the appellee that the appellant is “ to serve the case on ” appellee by a certain time.</p> <p>2. "Where one of several attorneys for the appellee, on being asked to accept service of the ease on appeal, said that he had no authority to do so, and advised that the case be sent to the other counsel; Held, that such direction was not a waiver of the legal mode of service so as to authorize a service by mail.</p> <p>3. "Where service of a case on appeal is made by mail, on the last day for service, instead of by an officer, the failure to promptly return the case does not estop the appellee to deny the legality of the service, since, if the'case had been promptly returned, it would have been too late to have it legally served.</p> <p>4. This Court will not pass on or recognize alleged verbal agreements of counsel when they are denied.</p>

Civil action, tried at Fall Term, 1896, of Columbus Superior Court, before Greene, Jand a jury. There was a judgment for the plaintiffs, and defendants appealed. Upon failure of service of the case on appeal, the defendants moved in this Court for a writ of certiorari to have the case on appeal settled by the judge, which was denied, and thereupon they moved to have their case treated as the proper case on appeal.

Civil aotioN, to foreclose a mortgage, tried before Star-buck, J., at February Term, 1896, of UupliN Superior Court, as upon a case agreed as to the following facts : “On January 21, 1884, the defendants executed to plaintiff Stanford a mortgage deed in fee-simple with the following habendum and warranty, to-wit: “ To have and to hold said lands to the party of the second part and his heirs, executors and administrators forever, and the said parties of the first part do for…

Civil action, tried before Starbuch, J., at Spring Term, 1896, of Moore Superior Court. The action was instituted to foreclose two certain mortgages executed by the defendants to the plaintiff on the 5th day of September, 1891, and the 5th day of September, 1892, respectively, to secure two certain bonds of same date for loaned móney— the first in the sum of $400 and the second in the sum of $150.

Civil action, begun in -justice’s court, and heard on appeal by Oreene, J., and a jury, at April Term, 1896, Cumberland Superior Court. The plaintiff declared upon a contract for building a bridge, at the price of twenty-three dollars and fifty cents. The defendant, when the case was called, objected to the court’s trying the case, for that there was no law authorizing the holding of a court at this time, and that it had no jurisdiction to try the case at this time.

Civil ACTION of claim and delivery, tried before Creene, J., and a jury, at April Term, 1896, of Cumberland Superior Court. The defendant excepted to the jurisdiction of the court upon the ground that the law did not authorize said court to be held at the time. Exception overruled and defendant excepted. Upon the trial there was no exception on the defendant’s part as to the rulings of the court upon the exception or rejection of evidence.

Civil aotioN, beard before Stariuch, J., at Fall Term, 1896, of ColuMbus Superior Court. A jury trial was waived, and tbe court found the facts, which were agreed to by the parties: That on April 28, 1896, the plaintiffs sold the defendant E. Nealy a buggy, and said defendant executed to plaintiffs the following paper-writing : “ $20. “ Sixty days after date I promise to pay Williamson & Go. twenty dollars for value received in one open Wren buggy.

Civil ACTION, by the plaintiff as lessor against the lessee, to recover possession of the property of the Fay-etteville Waterworks Company, leased to the defendant, for an account of rents and the appointment of a receiver, heard before Greene, J., and a jury, at Fall Term, 1896, of Cumbkkland Superior Court. The facts appear in the opinion of Associate Justice Fukohes. There was judgment for the plaintiff, and defendant appealed.

<p>Action Against Sheriff — Joinder of Causes of Action— Practice — Parties.</p> <p>1. Under Section 267 (1) of The Code all causes of action, of whatever nature, in favor of the plaintiff against the same defendants, can be united in one action when they arise out of the same transaction, or transactions connected with the same subject of action.</p> <p>2. Causes of action against a sheriff and the sureties on his official bond for illegal levy and sale are properly joined with a cause of action against a person who directed or procured suchlevy and sale tobe made and gave an indemnifying bond therefor.</p> <p>3. Such action, since it embraced a cause of action against the surety on the sheriff’s bond, was properly brought in the name of the State on the relation of the plaintiff.</p>

<p>Practice — Certiorari—Refusal of Appellant to Pay Costs of Transcript — Suits in Forma Pauperis — Fees cf Court Officers.</p> <p>1. An order granted under Sec. 553 of The Code, permitting an appeal without giving bond or making a deposit, does not relieve the appellant in civil actions from the payment of costs of transcript or in Supreme Court in advance.</p> <p>2. The leave to sue as a pauper, under Sections 210 and 212 of The Code, does not extend, in civil actions, beyond the trial in the superior court, his appeal being governed by Section 553 of The Code, which only relieves him from giving security for the costs of the appeal, but he must pay the fees as to the appeal due the officers of both courts for services rendered.</p> <p>3. Where a party who has had leave to sue as a pauper and to appeal without giving bond refuses to pay the costs of the' transcript, a certiorari will not be granted.</p>

PetitioN for the appointment of a receiver for the estate of W. M. Hybart, a lunatic and patient in the North Carolina Asylum for the Insane, heard before Greene, J., at May Term, 1896, of Cuiiberland Superior Court. The facts are set out in the opinion of Associate Justice Avery.

Civil action, tried before Greene, J., at April Term, 1896, of RiohmoND Superior Court, on a motion for judgment on tlie pleadings, the nature of which and the facts upon which they were based, are fully set out in the opinion of Associate Justice Clark. From a judgment for the plaintiff for $233.48, which the Court held to be admitted by the answer, the defendant appealed.

<p>Fee-Simple Estate — Condition—Restriction upon Alienation for a Certain Time Void.</p> <p>A condition annexed to a conveyance in fee-simple, by deed or will, preventing alienation of the estate by the grantee within a certain period of time, is void.</p>

<p>Civil aotioN, tried at August Term, 1896, of Moore Superior Court, before Starbueh, J. The decedent, Brax-ton Shields, was domiciled at the time of his death in the State of Alabama, where, according to the finding of the jury, he left sufficient assets, outside of the policy of insurance sued on in this action, to discharge his indebtedness due there. His body was brought to North Carolina and interred in Moore county, where he left assets, and where there were creditors of his estate, one debt due said estate being a part of the burial expenses, and where his only heirs-at-law (his brother Thomas Shields and Lydia Fry, wife of James Fry) reside. The decedent was at the time of his death engaged, under the firm name of Shields & Co., in the business of selling drugs in Selma in the State of Alabama with Clement Eitter, who is the sole surviving partner, and has, under the laws of the State of Alabama, the exclusive right to wind up the affairs of said partnership and settle its indebtedness. The intestate, outside of the obligations of the said partnership, owed in Alabama at the time of -his death to L. A. Moore $75, evidenced by note dated March 26,1894, and his estate incurred liability there, after his death, to J. Brislin for a casket $70, and to Clement Eitter individually $139.60 for expenses of attention to and removal of the body of the deceased to North Carolina for burial. J. Brislin, who held the claim for $70, was duly appointed and qualified as administrator in Alabama. Subsequently the plaintiff H. B. Shields was appointed administrator by the clerk of the superior court of Moore county, and was duly qualified. In order to facilitate the settlement of the estate, the administrator Shields and the heirs-at-law and distrib-utees, Thomas Shields and Lydia Fry, together with her husband, entered into an agreement with the surviving partner, Clement Eitter of Selma, Alabama. They sold and assigned to him all of the right, title and interest of Brax-ton Shields in the property and effects of the firm of Shields & Co., and authorized him (Eitter) to pay $70 due Brislin, and to reimburse himself for expenses incurred in bringing the body to Moore county for burial. Eitter executed a bond to idemnify Shields as administrator against any indebtedness of Braxton Shields as a member of the firm of Shields & Co. and all individual indebtedness of Brax-ton Shields. H. B. Shields signed an agreement to repay Ritter his own advancements for expenses after the death of the intestate, and to hold him harmless on account of his promise to pay Brislin $70 for the casket, provided the insurance policy sued on should be paid to him, or other funds received by him, sufficient to settle the indebtedness. Brislin assented to the agreement entered into with Ritter, and Ritter, who had possession of the policy, turned it over to Shields as administrator.</p> <p>The issues and findings were as follows :</p> <p>“ 1. Did the plaintiff’s intestate die intestate in the city of Selma, in the State of Alabama ? Answer, ‘ Yes.’</p> <p>“ 2. At the time of his death was the- plaintiff’s intestate due his creditors for debts contracted in the State of Alabama? Answer, £ Yes.’</p> <p><£ 3. Have letters of administration been granted on the estate of plaintiff’s intestate in the State of Alabama, and if so, when? Answer, ‘ Yes, on October 28, 1895.’</p> <p>“ 4. Has the administrator of said intestate in the State of Alabama made a demand on the defendant company for the amount alleged to be due on the policy of insurance set out in the complaint ? Answer, ‘ No.’</p> <p>££ 5. Did the plaintiff enter into the contract and agreement with Clement Ritter, and said Ritter have executed and delivered the indemnifying bond, as alleged in the complaint of plaintiff? Answer, £ Yes.’</p> <p>££ 6. Did Judson Brislin agree in February, 1895, to the arrangement and contract made by the plaintiff with Clement Ritter as alleged in the complaint ? Answer, £ Yes.’</p> <p>££ 7. Was a part of the burial expenses of Braxton Shields contracted in the County of Moore, State of North Carolina? Answer, £ Yes.’</p> <p>“ 8. At tbe time of his death was the domicile of the plaintiff’s intestate, Braxton Shields, in the State of Alabama? Answer, ‘ Yes.’</p> <p>“ 9. Is there sufficient assets in the State of Alabama belonging to the estate of Braxton Shields to fully pay off and discharge the indebtedness due from said estate in the State of Alabama, outside of the policy of insurance sued on ? Answer, £ Yes.’ ”</p> <p>The defendant admitted issuing the policy, the death of the insured, and its liability to the rightful representative of the deceased, but (among other defenses) averred :</p> <p>“ I. That it is denied that H. B. Shields is the duly appointed administrator of the estate of Braxton Shields, for the reason that the cleric of the superior court of Moore county did not have jurisdiction to appoint the plaintiff such administrator, said appointment having been made on the ground that the plaintiff’s intestate was a resident of the State of North Carolina at the date of his death; whereas, in fact, at the date, of his death he was a resident of the State of Alabama.</p> <p>“ II. That, at the date of his. death, said Braxton Shields was a resident of the State of Alabama, was engaged in business in said State, and was largely indebted to various residents thereof. The defendant further states that it is ready and willing to pay said policy to any administrator who shall properly and legally be appointed, at the place of said Braxton Shields’ domicile, but it denies the right of the plaintiff herein to compel the payment of said policy in the State of North Carolina.”</p> <p>As an amendment to its answer the defendant said :</p> <p>“ I. That, since the filing of its answer herein, letters of administration have been granted upon the estate of Brax-ton Shields to Judson Brislin, by P. G. Wood, Probate Judge of Dallas county in the State of Alabama, of which said county and State the said Braxton Shields was a resident at the time of his death and in which he died. That said administrator has demanded of the said defendant company the amount due the estate of said Braxton Shields by reason of his death and the policy of insurance-in this action declared on.</p> <p>“ II. That the defendant is advised and believes that the policy of insurance herein declared on is properly and legally payable (if at all) to the administrator of the estate of said Braxton Shields in the County of Dallas in the State of Alabama, where the said deceased had his residence, owed debts and died ; and that the plaintiff is not entitled to recover in this action for the reasons aforesaid.”</p> <p>The judgment rendered was as follows :</p> <p>“ It being admitted by the plaintiff that defendant company is a non-resident corporation, and a resident of the State of Ohio, and having a branch office in the State of North Carolina, it is adjudged that the plaintiff recover and take nothing by his suit, and that defendant recover from plaintiff and his surety the costs of action.”</p> <p>The plaintiff moved for judgment on the pleadings, findings of the jury and admissions. The court denied the motion for reasons set forth in the judgment, and the plaintiff appealed.</p>

This was a oivil ACTION to recover damages, tried at March Term, 1896, of the Superior Court of PeNder County, before his Honor, Starbuolc, J., and a jury. The following were the issues submitted to the jury and the responses thereto: “I. Was the plaintiff injured by the negligence of the defendant? Ans.,‘Yes.’ “ II. If so, did the plaintiff, by his own negligence, contribute to his injury ? Ans., ‘No.’ “III. What damage, if any, is the plaintiff entitled to recover?

Civil aotion, fur damages, tried before Greene, I., and a jury, at May Term, 1896, of Cumberland Superior Court. There was a verdict for plaintiffs, assessing their damages at twenty-five cents, and from judgment thereon and for errors assigned (as referred to in the opinion of Associate Justice MONTGOMERY) the plaintiffs appealed.

Civil actioN, to set aside a deed alleged to have been obtained from plaintiffs’ ancestor by the undue influence of the defendants and others in their behalf, and to recover the land conveyed thereby, tried before Greene, J., and a jury, at May Term, 1896, of Cumbeklamd Superior Court. The issues submitted and the responses were as follows : “ 1.

<p>MotioN, by successful appellant, to tax cost of printing record.</p>

Civil action, brought by plaintiffs to recover judgment for money due, against the North'Carolina Smelting Company, and to set aside and cancel a mortgage executed by said North Carolina Smelting Company to defendant F. T. Johnson, and also to cancel judgments confessed by said smelting company to the other defendants than Johnson, and tried before Greene, J., and a jury, at Fall Term, 1896, of Davidson Superior Court.

Civil aotioN, tried before HoTce, J'., at Spring Term, 1896, of DavidsoN Superior Court. The facts appear in the opinion of Associate Justice Montgomery. There was judgment for plaintiff and defendants appealed.

Civil actioN,. tried at Spring Term, 18-96* of DAViDgdN Superior Oóür'L The facts appear in the opinion of Chief Justice FairC'loth. There was a verdict for' the.plaintiff, and defendant appealed from the judgniefrt thereóm .

Summary proceeding in ejectment, commenced before a justice qf the peace, and tried before Hoke, J., and a jury, at February Term, 1896, of Iredell Superior Court. 1. Plaintiff alleged that he rented to defendant a tract of land in 1895 — plaintiff to furnish supplies, defendant to cultivate crop, and that defendant failed to comply with the terms of the lease. 2.

MotioN of plaintiff, heard at Eall Term, 1896, of David-SON Superior Court, before Greene, J., to set aside a judgment of non-suit entered at Eall Term, 1895, of said court. The motion was granted, and defendants appealed. The facts appear in the opinion of Associate Justice ClaRK.

<p>Practice — Irregular Judgment — Order in One Action Invalid as Affecting Separate Action.</p> <p>1. While an action to foreclose a contract for the sale of land was pending an attachment was sued out against the defendant and levied upon personal property. The plaintiffs also brought summary process of ejectment before a justice of the peace, and from a judgment removing the defendant from possession the latter appealed to the Supreme Court. Defendant afterwards moved in the foreclosure action for an order vacating the attachment and restoring him to possession of the land ; Held, that an order restoring the defendant to possession, made in the foreclosure action before the appeal in the ejectment case had been tried, was erroneous.</p> <p>2. In such case, however, it was proper to appoint a receiver of the rents and profits of the land.</p>

AotioN foe damages for alleged unlawful entry upon land and cutting and carrying away wood, tried before Brown, J., at Fall Term, 1895, of Stores Superior Court. A verdict was rendered for plaintiff, but judgment not having been entered thereon at that term, judgment nunc pro tunc was entered at Fall Term, 1896, by Holte, J. On the trial the following were the issues and findings: “1.

ActioN, tried before Norwood, J, and a jury, at Spring Term, 1896, on appeal from a judgment of a justice of the peace.

Civil agtioN, heard before Hoke, J., and a jury, at Fall Term, 1896, Superior Court of Wilkes County. The action was to recover a sum due and enforce a lien claimed to be a mechanic’s lien against the lands of defendant, situated in Wilkes county.

Civil action, tried before Norwood, J., and a jury, at. Eebmarv Terra, 1896, of Forsyth Superior Court. There was judgment for the plaintiffs, and defendants appealed. The facts appear in the opinion of Associate Justice Mont-fiOMERY.

Civil ACTION, for the recovery of land, tried before Nor-wood, J., and a jury, at March Term, 1896, of AlleghaNY Superior Court. There was verdict for the plaintiff, and from the judgment thereon defendant appealed. The facts appear in the opinion of Chief Justice Faibcloth.

Civil aotioN, to caucel a deed, tried before Norwood, J., at Spring Term, 1896, of Wilees Superior Court, on a case agreed, the facts of which are set out in the opinion of Associate Justice Eukches. His Honor gave judgment as follows: “ It is adjudged and decreed that plaintiff is not estopped, and that the deed executed to J. S. Call by the ex-clerk, J. E. Somers, be cancelled ; that the sale of the land mortgaged be set aside, and that a new sale be ordered.

Special PROCEEDING, for the partition of real estate among the heirs-at-law of Charity Shackleford, pending in Stoiíbs Superior Court, and heard on report of referees before Norwood, J., by consent, at Chambers, in Winston, Eorsyth County. From a judgment of his Honor overruling the exceptions to the report of the referees the plaintiffs appealed. The facts sufficiently appear in the opinion of Chief Justice Fairoloth.

Civil aotion, pending in Wilices County, heard before Norwood, J., at Spring Term, 1896, of Wilices Superior Court, on a motion for a writ of Assistance by the plaintiff, the Piedmont Wagon Company, which had purchased the land sold under a decree of foreclosure. The motion was refused and plaintiff appealed. The facts appear in the opinion of Associate Justice ClarK.

<p>Motion of appellaut for certiorari.</p>

MotioN to set aside a judgment undei Section 274 of The Code, heard before Hoke, J., at Fall Term, 1896, of Stoices Superior Court. From an order setting aside the judgment the defendant appealed. The facts appear in the opinion of Chief Justice Fairolotit.

Civil aotioN, tried before Bvown, J., and a jury, at January Term, 1896, of Forsyth Superior Court. The nature of the action and the facts are fully stated in the opinion of Associate Justice Montgomery.

Civil actioN, tried at Spring Term, 1896, of Subey Superior Court, before Norwood, J. Application had been made for two policies of insurance, one on the life of McDowell Boyd for $1,000, for the benefit of his wife Anna Louisa Boyd, and the other for a like amount on the life of the wife for the benefit of the husband.

Civil aotion, pending in Buree Superior Court, and heard before Nortoood, I., at Fall Term, 1896, on a motion of the defendant to require plaintiff (who had obtained leave to sue in forma pauperis) to give security for costs. JELis Honor made an order as follows : “ It is ordered that upon the giving of security in the sum of one hundred dollars, to be secured by mortgage upon real estate, the plaintiff be allowed to prosecute this action.

Civil aotioN, on a note for the purchase of land tried, before Brown, J., at Spring Term, 1896. Plis Honor adjudged the answer to be frivolous and insufficient, and gave judgment for plaintiff’s and defendants appealed. The facts are sufficiently stated in the opinion of Associate Justice Euroi-ies.

<p>Practice — Contempt—Disobedience of Order of Gourt— Ability of Party to Comply with Order — Motion to Dissolve Order — Judge, Duty of.</p> <p>1. Where a party to an action, having been directed to perform an order of the court, otherwise to be in contempt, applied, after notice, to have the order discharged, and offered to produce affidavits showing his inability to comply with the order, it was the duty of the judge to hear and pass on the affidavits.</p> <p>2. Where an order adjudging a party to be in contempt of court unless he should perform what was. therein directed to be done was not appealed from, it will not be reviewed on an appeal from the refusal of the judge below to hear affidavits on a motion to discharge the party for contempt because of his inability to perform the order, unless to correct what may appear plainly to be erroneous.</p> <p>3. Where a defendant was ordered to furnish the boundaries for a survey of the land involved in the action, and to execute and deliver a warranty deed to the plaintiff, his refusal to obey the order renders him liable to imprisonment for contempt.</p> <p>4. Where, in an action to recover land, the title was adjudged to he in plaintiff, it was error in the court to order the defendant’s wife, who claimed the land and was not a party, and her tenant to surrender possession in ten days, otherwise to be in contempt of court, since that would be depriving a person of property without process of law or trial.</p>

MotioN, by R. M. Patterson, to revive a judgment, heard before Norwood, J., at Fall Term, 1896, of Burke Superior Court, on appeal from the clerk’s refusal to grant the motion. His Honor reversed the action of the clerk and defendants appealed.

Civil ACTION, against L. C. Geutery and H. S. Van noy, sureties on the bond of Herman Williams and James E. Clayton, receivers of the Ore Knob Copper Company of Ashe County, against whom the plaintiff had recovered judgment at Spring Term, 1887, of Ashe Superior Court. The action was heard on complaint and demurrer before Norwood, J'., at Fall Term, 1896, of Ashe Superior Court. The complaint did not allege that leave to sue on the receiver’s bond had been obtained.

Civil' action, pending in BueKE Superior Court, and heard before Norwood, J., at Fall Term, 1896, on a motion of plaintiff for change of venue upon the ground that the facts alleged and admitted in the pleadings show that every juror in Burke county, being a taxpayer, is interested in the subject matter of the action. The motion was denied and plaintiff appealed.

• Petition of defendants for a rehearing of the case between the same parties, decided at February Term, 1896, of this Court, and reported in 118 N. 0., at page 700.

Civil actioN, tried before Brown, J., at July Special Term, 1896, of Ashe Superior Court, on appeal from a judgment of a justice of the peace.

<p>Civil aotion, tried before Bryan, I., at Fall Term, 1895, of Y-aNCEy Superior Court, on appeal from a judgment of a justice of the peace. A jury trial was waived and bis Honor, by Consent, found the facts. The action was to recover for burial expenses of T. W. Young, paid by the plaintiff, M. E. Young.</p> <p>Mary E. Young, the plaintiff, was introduced and testified that she was the widow of T. W. Young, deceased; that, at the death of her husband, Hon Young, brother of her husband, went to the store of G. H. Ray & Son and got the burial clothes for her husband, and that within two or three days after his death, and before an administrator was appointed, G. D. Ray & Son presented her with the account sued for, which they held for the burial expenses of her husband, T. W. Young, and said she did not pay it at that time; that she advised with Mr. Banks, the clerk of the superioi court, who advised her that if she paid it she could recover it back ; and then she went to Mr. Ray’s and took up the account; that she paid it with her own money and not her husba.nd’s; that there was no contract or agreement between her and the administrator for her to pay this debt; that there was no administrator when she took up the account; that she was advised by counsel that this debt was against the estate of T. W. Young, deceased, and not against her; but when she was advised that shé could recover it back she paid it, but did not know that she could collect it. The defendent introduced no testimony, there being no controversy as to the amount of the debt.</p> <p>The defendant, after specially pleading the Statute of Frauds, rested and contended that as the plaintiff was not compellable to pay said debts, and as she had paid the same of her own motion, she could not be allowed to recover as against the administrator in the absence of a written contract to that effect. His Honor being of the opinion that the plaintiff was entitled to recover, gave judgment for the plaintiff and defendants appealed.</p>

Oivui aotioN, tried before Brown, J., at May Special Term, 1896, of MoDowicrm Superior Court. There was a verdict for the defendants, and plaintiffs appealed from the judgment thereon, assigning as error the exclusion of the parol evidence offered to identify the land alleged to be conveyed by the deed upon which they relied. The ■excluded evidence is sufficiently referred to in the opinion of Associate Justice Avkry.

Civil aotioN, to enjoin the Commissioners and Sheriff of CeaveN County from the levy and collection of a special tax, under Chapter 201, Acts of 1895, heard before Poyicin, J., at hall Term, 1895, of Cravbn Superior Court. The provisions of the act are set out in the opinion of Associate Justice Fuhoiies. His Honor refused the injunction, and plaintiffs appealed.

Civri. actioN, for damages, tried before Brown, J., and a jury, at-May, 189b, Special Term of McDowkll Superior Court. The facts are sufficiently stated in the opinion of Associate Justice Montgombry.

<p>. Civil actioj&t, for the recovery of land, tried before Brown, J., at Fall Term, 1896, of LINCOLN Superior Court. There was a verdict for the plaintiff upon the usual issues in ejectment, and from the judgment thereon the defendant appealed. The facts and grounds assigned as error .appear in the opinion of Associate Justice Fubohiss.</p>

Civil action, to set aside and cancel a deed made by Nancy Eorrest to Elizabeth L. Redwine for life, and at her death to the heirs of J. M. Redwine, on the alleged ground of fraud and undue influence practiced upon her by J. M. Redwine, tried before Bryan, J., and a jury, at Spring Term, 1896, of StaNLY Superior Court. There was a verdict for the defendants, and plaintiff appealed from the judgment thereon.

<p>Civil actxoN, begun before a justice of the peace and tried on appeal before Bryan, J., and a jury at Spring Term, 1896, of Lincoln Superior Court. There was a verdict for the plaintiff and the defendant appealed from 'the judgment thereon. The facts and the assignments of error appear in the opinion of Associate Justice Fujbohes.</p>

PetitioN, filed by Permelia Withrow to remove Greorge W. DePriest as administrator of John C. Withrow. Upon investigation the following facts were found by the clerk of the superior court: I. That John C. Withrow died on the second or third day of June, 1895. “ II. That Permelia Withrow is his widow and Minnie AVithrow his only child, aa:ed about, eight years. “III. That within thirty days from the death of J. 0.

<p>Statutes of Frauds — Pleading—Promise to Pay Debt of Another — Consideration.</p> <p>1. When the answer denies the alleged promise the Statute of Frauds can be relied on without being pleaded.</p> <p>The consideration of a new promise to pay a debt may be proven by parol.</p> <p>S. A new parol contract to pay .the debt of another, superadded to the original cause of action which remains in force and is not substituted for it, is void.</p> <p>4. A promise by a vendee that, if he purchase a certain tract of land, he will pay a note of the vendor to a third person, is void within the Statute of Frauds.</p>

<p>Civir, ACTION, tried before Br^wn, J., at October Term, 1896, of MeokleNbtjkg Superior Court, for the recovery of commissions on the sale of real estate. Upon an intimation by his Honor that the plaintiff could not recover upon his own testimony, the latter submitted to a non-suit and appealed. The opinion of Chief Justice Faik-clotii contains a full summary of the plaintiff’s testimony.</p>

CONTROVERSY without action, heard before Hoke, «A, at August, 1896, Term of Eorsyth Superior Court. The facts appear in the opinion of Associate Justice Eurohes. Judgment was rendered in favor of the plaintiff for $794.20 and defendant appealed.

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

Civil ACTION, tried before Robinson, J., and a jury, at July, 1896, Term of Madison Superior Court. The material facts and the principal assignment of error on appeal are stated in the opinion of Associate Justice Montgomery. There was verdict for the plaintiff, and defendant appealed from the judgment thereon.

Civil actioN, tried at Eall Term, 1895, of MadisoN Superior Court, before Robinson, J. The facts appear in the opinion of Chief Justice EaiRCLotii. Erom a refusal of plntiff’s motion to be allowed to enter a non-suit plaintiff appealed.

Civil actioN, for damages, tried before Timber'lake, J., at February Term, 1896, of MadisoN Superior Court. The plaintiff filed, by her counsel, a complaint and defendant answered.

<p>Practice — Trial—Change of Front — Promise to Pay the Debt of Another.</p> <p>1. A plaintiff cannot abandon his cause of action and recover upon an entirely different cause of action without amendment unless the defendant enters no objection and permits the ease to be tried in the changed aspect.</p> <p>■3. Where the complaint in an action alleged a contract between plaintiff and defendant, it was error in the trial of the action to admit testimony of an alleged contract between the defendant and another person for the plaintiff’s benefit.</p> <p>■3. Where, in the trial of an action the plaintiff abandons the cause of action set up in the complaint and endeavors to recover upon another, upon objection by the defendant the court should either exclude the evidence or permit an amendment of complaint and answer and, if necessary, grant defendant a continuance.</p>

Civil actioN, to set aside a deed as fraudulent, ‘tried before Robinson, J., and a jury, at July Term, 1895, of Madison Superior Court. The impeached deed was executed by the defendant, R. T. Ohandley, to his wife, 'the defendant, N. M. Ohandley. It recited a consideration of $1,5C0 paid in money, and was made subject to mortgages aggregating §860.

<p>Action to Recover Personal Property — Pest Evidence— Parol Evidence.</p> <p>The rule that the best evidence as to the contents, meaning and effect of a written contract is the instrument itself applies only when the contest concerning' the same is between the parties thereto; where the controversy over personal property is between persons not parties to written contract under which a party claims title, and it is collaterally attacked, parol evidence as to its contents and meaning is admissible.</p>

Civil ACTION, tried before Robinson, J., and a jury, at Fall Term, 1895, of Geaíiam Superior Court, on the usual issues in enjectment. The plaintiff put in evidence a State grant, dated February 3, 1868, which he claimed covered the land in controversy, and tlie same as described in the complaint. The grant called for beginning on a chestnut tree the S. E. corner of the Geo. Williams lot.

Civil action, tried before Holce, J., and a jury, at April Special Term, 1896, of Buncohbe Superior Court. Held: and so instructed the jury, that the defendant, Samantha C., was entitled to a life estate as cestui que trust in the entire property, and that the plaintiff Clara was entitled to a remainder in fee simple, after the expiration of the life estate of defendant Samantha C. as cestui que trust.

Civil ACTION on a note, tried before Hohe, J., and a jury, at April, 1896, Special Term of Bu:ncombe Superior Court. The essential facts appear in the opinion of Associate Justice Fueohes. Defendant appealed from the judgment rendered against him.

MotioN of Joseph L. Caven, a judgment creditor of M. E. Carter, deceased, to be made a party plaintiff in a proceeding for the sale of land for assets and to set aside a judgment previously rendered therein, heard before Bryan, J., at Fall Term, 1896, of BuncoMbe Superior Court, on appeal from an order of the Superior Court Clerk. The facts are stated in the opinion of Chief Justice Faiiíolotíi.

. AotioN to recover land, tried before Boykin, </., and a jury, at December Term, 1895, of Buncombe Superior Court. There was verdict for the plaintiff and defendant appealed from the judgment thereon.

Petition for cartway, tried on appeal from an order of the Board of Supervisors of Charlestown Township, in Swain County, before Timberlake, J., and a jury, at Eall Term, 1895, of SwaiN Superior Court. There was a verdict for the plaintiff, and defendant appealed from the judgment thereon. The facts appear in the opinion of Associate Justice EüRCIies.

ActioN by the plaintiff, to restrain the defendant, as tax collector of Swain County, from selling certain personal property of plaintiff for non-payment of taxes, heard before Bryan, J., at Chambers, in Bkyson City, on 21st November, 1896. The grounds of the application are stated in the opinion of Associate Justice MontgomeRY. The injunction was refused and plaintiff appealed.

<p>Civil aotioN for damages, tried at March Term, 1895, of BuNOombe Superior Court, before Graham, Jand a jury. There was a verdict for the plaintiff and judgment thereon for $1,100 and the plaintiff appealed, the principal error assigned being that discussed in the opinion of Associate Justice Aveky.</p>

Civil ACTION, tried before Eolce, J., and a jury, at April, 1896, Speoial Term of BuNCOmbe Superior Court. The nature and purposes of the action and the matters involved in the appeal appear in the opinion of Associate Justice FuRCHes. There was a verdict for the plaintiff, and the defendant McLoud alone appealed from the judgment thereon.

Civil ACTION, for damages for malpractice in dentistry, tried before Bryan, J., and a jury, at Fall Term, 1896, of Haywood Superior Court. The essential facts and the principal assignment of error by the plaintiff, who appealed from the judgment rendered on verdict for the defendant, are stated in the opinion of Associate Justice Aveey.

<p>Appeal — Record—Certiorari.</p> <p>1. A petitioner for a certiorari must show himself free from laches by doing all in his power towards having the appeal perfected and docketed in time.</p> <p>3, The fact that the clerk below charged exorbitant fees for making the transcript of “the case on appeal,” signed by the judge, is no excuse for appellant’s failure to send up the record. If the fees were exorbitant, the appellant’s remedy was to pay the fees, send up the transcript and move to have the clerk’s charges retaxed.</p>

Civil aotioN, for trespass, tried before S'tarbuck, J., and a jury, at Spring Term, 1895, of SwaiN Superior Court. There was a verdict for the plaintiffs and from the judgment thereon the defendants appealed. The necessary facts are stated in the opinion of the Court and in the dissenting opinion of Chief Justice Faieoloth.

This matter came up to this Court on the appeal of E. L. Reid and E. 0. Curtis, registrars of the 5th ward of Winston, Forsyth county, from an order made by Walter A. MONTGOMERY, one of the Justices of the Supreme Court in Chambers in Raleigh, on the 13th day of October, 1896. The order was made upon proceedings instituted under Section 7 of the Election Law of 1895.

PetitioN for a writ of mandamus, brought by II. S. Harkins, Chairman of the Republican Executive Committee of Rnncombo county, to compel J. L. Cathey, clerk of the Superior Court of Buncombe County, to comply with the election law of 189.3 in the appointment of judges of election, heard by lion. H. M. Fi/rciies, one of the Associate Justices of the Supreme Court, on October 24, 1896.

This was a proceeding under Section 7 of Chapter 159, Acts of 1895, to restrain the defendant Cleric of the Superior Court, of Mecklenburg County from tabulating and counting the election returns from Pineville Township, Precinct Ho. 2, on the ground of alleged irregularities, intimidation, etc., heard before Hon. D. M. Fuiicmcs, one of the judges of the Supreme Court.

Civrr, ACTION, for damages, tried at Fall Term, 1895, of Bertie Superior Court, before Boyhin, J., and a jury. The complaint, after the formal parts, alleged : “ 3. That said Henry Parker for the past six years planted said land in crops of corn, peas and other products, and endeavored to cultivate crops on said land, until it was reodeied unfit for cultivation by the unlawful, negligent and wrongful act of the defendant. “ 4-.

PROCEEDING, commenced before the Clerk of the Superior Court of Bertie County, under Chapter 49 of The Code, for the assessment of compensation claimed by the petitioner for land taken and used by the defendant as a right of way. The issues raised were certified by the clerk to the Superior Court at term, and the proceeding was heard before his Honor Boykin, J., at Fall Term, 1895, of said court.

Civil aotioN, for damages for delay in delivery of freight, tried before Hoke, J., and a jury, at June Term, 1896, of Edgecombe Superior Court. At the call of the cause for trial the defendant, the Pennsylvania Railroad Company,moved in apt time for the dissolution of the attachment theretofore granted on the grounds stated in the motion. Before making the motion the said defendant had entered a general appearance and filed an answer.

Civil action, tried before Robinson, J.. and a jury, at May Term, 1896, of Halifax Superior Court. The facts sufficiently appear in the opinion of Associate Justice FurChios. There was a verdict for the defendant, and plaintiff appealed from the judgment thereon.

Civil aotioN, for damages, for the alleged negligent killing of plaintiff’s intestate, tried before Mclver, J., and a jury, at April Term, 1896, of Wake Superior Court. The following is the testimony : S. H. Perry, a witness for the plaintiff, testified : “ I am a son of the intestate, and was with him going towards home from Wake Forest; we were walking on the path beside the railroad.

Aoiton, tried at Fall Term, 1896, of Caswell Superior Court. The appellant moved in this Court for a writ of certiorari to bring up the record. The grounds of the motion are set out in the opinion of Associate Justice Clark.

<p>Railroad Companies — Appropriation of Land — Damages — Limitations—Color of Title.</p> <p>1. Where the charter of a railroad company provides that when the company has appropriated land without authority no action shall be brought by the owner except a petition to have the damage assessed, and fixes no limitation of the action, such petition is neither an action of trespass nor one on a liability created by statute within the meaning of The Code, Section 155 (2) and (S), (Statute of Limitations) and the refusal of the trial judge to submit an issue upon the Statute of Limitations was not error.</p> <p>2. An unregistered deed, accompanied by continuous possession by the grantor since its execution, is color of title, notwithstanding “ Conner’s Act ” (Ch. 147, Acts of 1885,) and was properly admitted in evidence in a proceeding to recover damages from a railroad for appropriating a part of the land before the registration of the deed.</p>

AotioN, heard before Greene, J., at Fall Term, 1896, of Cabareus Superior Court, on amotion of defendant to dismiss, because the complaint contained only a statement of a defective cause of action, and the court adjudged that the cause be dismissed, and that the defendant go without day and recover costs, and from this judgment the plaintiff appealed. The complaint is as follows : “ 1.

Civil actioN, for damages, tried at July Term, 1896, of RookiNGham Superior Court, before HoTce, It appeared that plaintiff was a brakeman in defendant’s employ ; that at night he was standing on the rear end of a freight car in a train, preparing to uncouple it from the car behind it; that the train was still, or nearly still, at the time; that the conductor had, without plaintiff’s knowledge, uncoupled the cars; and that, while plaintiff was thus preparing to uncouple the…

ActioN for damages for injuries caused by tlie negligent operation by defendant’s servants of one of its cars in which plaintiff was at work with defendant’s knowledge, tried before StarbucJc, J., at March Term, 1896, of Meck-lenburg Superior Court. The facts appear in the opinion of Chief Justice Eaircloth.

Civil actioN, pending in the Superior Court of McDowell County. At May, 1896, Special Term, before Brown, J'., the defendant, the Ohio & Charleston Railway Company, presented certain orders and proceedings of the Circuit Court of the United States, undertaking to remove this cause to the said Circuit Court, upon the grounds of local prejudice, and that said defendant was a corporation and citizen of another State.

Civil aotioN, for damages, tried before Norwood, A, and a jury, at Spring Term, 1895, of Surry Superior Court. The action was prosecuted by the plaintiff as next friend of his son, a minor, who was injured while in the employment of the defendant and engaged in repairing a bridge on the Northwestern North Carolina Railroad. Tho issues submitted to the jury and the responses were as follows : “ 1.

Civil aotioN, tried before Brown, J., at October Term, 1896, of the Superior Court of MboKlicNburg County. The action was brought by the plain tiff, administrator of Jack Ezzelle, deceased, to recover damages for the negligent killing of the plaintiff’s intestate by the agents of the defendant company, on the. day of September, 1895.

This was a civil actioN, tried at October Term, 1896, of the Superior Court of MeoKleNbueg County, before Brown, The issues submitted to the jury and the responses were as follows : “1. Was the plaintiff injured by the negligence of the defendant ? “ Answer, ‘ Yes.’ 2. Did the plaintiff by his own negligence contribute to his injury % “ Answer, ‘ No.’ “ 3.

AotioN for damages, for an injury alleged to have been caused by the negligence of defendant company, tried before Brown, J., and a jury, at Spring Term 1896, of Union Superior Court. The issues and responses were as follows : “(1). Was plaintiff injured by defendant’s train? Answer, Yes. (2) Did plaintiff, by his own negligence, contribute to his own injury ? Answer, Yes.

INDICTMENT for abandonment tried, before Graham, <•/.,. and a Jury at May Term, 1896, of Beaufort Superior Court. On the trial the defendant testified in ' his own behalf, and his Honor charged the jury that, if they believed the testimony of the defendant, they should return a verdict of guilty, but that they were the judges of the facts and they alone could pass upon the evidence. The defendant was convicted and appealed, assigning as error the charge of his Honor.

INDICTMENT for fornication and adultery, tried before Graham,, J., and a jury at Spring Term, 1896, of NoRtii-AMPton Superior Court. The defendants were convicted and the male defendant appealed. The facts are stated in the opinion of the Associate Justice Avery.

The defendant was arrested and brought before a justice of the peace upon the charge of bastardy. He entered the plea of not guilty, and, offering no evidence, upon the affidavit or complaint, he was adjudged to be the father of the child, and judgment was entered against him accordingly. He appealed to the superior court of Wilson county, where, at June Term, 1896, a jury was empaneled.

<p>Officers — Enrolling Clerk of General Assembly — Corruption — Fraudulent Enrollment of Bill — “ Assignment AcV'</p> <p>On a trial of an indictment against the enrolling clerk of the General Assembly for fraudulently enrolling a bill which had never passedeither branch, the testimony of all the witnesses for the defendant, and all but one of those for the State, tended to show that the defendant never saw the bill, and had no knowledge of its existence until after the close of the session. One witness for the State, who had copied the bill, testified that defendant had assisted her in verifying the copy on the last day of the session, when there was a great deal of confusion in the defendant’s office, but this was denied by defendant and other witnesses. There was no evidence of bribery or of any understanding or collusion between the defendant and others in regard to the enrollment of the bill. Held, that it was error to refuse an instruction to the jury that there was no evidence of corruption on the part of the defendant.</p>

ProseoutioN for bastardy, tried before Mclver, J., at March term, 1896, of Wake Superior Court.' The defendant was committed and appealed. The facts sufficiently appear in the opinion of Associate Justice Avery.

WARRANT for bastardy, issued by W. M. Russ, a Justice of the Peace of Raleigh Township, inWake County, on the oath of Hattie Williams.

INDICTMENT for affray and assault with deadly weapons, tried before Boylcin, J~., at Spring Term, 1896, of YaNCE Superior Court.

.INDICTMENT for forgery, tried before Goble, J., and a jury, at Spring Term, 1896, of Durham Superior Court. The defendant was convicted and appealed. The facts sufficiently appear in the opinion of Associate Justice MONTGOMERY.

INDICTMENT for murder, tried before Colie, J., at Spring term, 1896, of Chatham Superior Court. The facts appear in the opinion of Associate Justice Claeií. The defendant was convicted of manslaughter and appealed.

INDICTMENT, tried before Mclver, J., and a jury at Fall 'Term, 1896, of Guilfokd Superior Court. Tile defendant was indicted for highway robbery, alleged to have been committed by snatching a purse from the hand of the prosecuting witness. When the evidence was closed, the solicitor for the State abandoned the action for highway robbery, but stated to the court he would insist upon a verdict for larceny.

CkimiNal action, tried before Coble, J., and a jury, at February Term, 1896, of Guilford Supeiior Court.

INDICTMENT, under Section 1003 of The Code, for willfully and unlawfully killing cattle, tried before Coble, J.y and a jury, at Fall Term, 1896, of Duplin Superior Court. At the trial, after the Solicitor had rested his case, and the defendant demurred to the evidence as being insufficient to go to the jury on a certain point, the State was allowed to recall a witness on such point, and defendants excepted.

CRIMINAL action, tried, before Starbuok, P, and a jury, at the March Term, 1896, of Pender Superior Court, upon bill of indictment as follows: “ The jurors for the State upon their oath present that B. J. Brown, late of said county on the léth day of March, 1895, in said county, not then and there being an ordained minister of any religious denomination or a justice of the peace of said county, and not being by law authorized so to do, did unlawfully, willfully and corruptly…

IndiotMMNT for highway robbery, tried before Molver, J,, and a jury, at Pall Term, 1896, of Chatham Superior Court. The evidence was as follows : H. II. Held: and were made by some one while running. All these tracks were evidently made the day or night before, and were nearly fresh.

<p>Indictment for Forcible Trespass — Evidence, Sufficiency of.</p> <p>1. Where, in the trial of an indictment for forcible trespass, it appeared that the prosecutor’s mill was placed on land leased by the defendant, with the consent and under contract with the latter that the defendant was to furnish logs to be sawed by the prosecutor at a specified price; that the defendant and his laborers destroyed the mill in the presence of the prosecutor, who protested against it; that no notice had .been given to prosecutor of defendant’s intention to remove the mill, and that defendant, when asked why he did not let the prosecutor know that he was going- to tear down the mill, said : “It would not have done,” the owner “was in possession and would have been bad to g-et out;” Held, that it was proper to leave to the jury the question whether the defendant was guilty after determining- in whom was the possession.</p> <p>2. The gist of the offence of a criminal forcible trespass is that there be such an offer of violence or demonstration of force as is calculated to bring- about a breach of the peace, and this may be implied, even if there be no actual violence or any fear inspired by those committing the trespass, if the person whose possession is invaded be present at any time during the commission of the act and forbidding it.</p>

INDICTMENT for conspiracy to defraud, tried before Graham, J., and a jury, at December, 1895, Special Term of the Superior Court of Jones County, to which it had been removed from the Superior Court of Carteret County. When the case was called for trial the Solicitor entered a nol pros, as to the defendants Stephen T. Turner and W. H. Turner.

INDICTMENT for forgery, tried before Graham, J., and a jury, at December, 1895, Special Term of Jones Superior Court. On the trial, the same objections were entered to the jurisdiction of the court as were made in the case of State v. Turner, at this Term. The objections were overruled and defendant excepted.

<p>INDICTMENT for conspiracy tried before Graham, J., and a jury at December Special Term, 1895, of JoNES Superior Court on removal from the Superior Court of Carteret county. The same objections to the jurisdiction were made as were interposed in the case of State v. Turner, at this Term.</p> <p>The defendants objected to the trial on account of defects in the transcript of the case from Carteret county. The court then requested the defendants to point out the defects complained of. Defendants replied that their counsel had not time to inspect the record carefully and could not do so. The objection was overruled, and defendants excepted.</p> <p>There was a verdict of guilty and defendants appealed.</p>

The defendant having been couvicted oímueder at October Term, 1894, of RobesoN Superior Court, appealed and was granted a new trial. After several continuances, he was again tried and acquitted at April Term, 1896, of the Criminal Circuit Court of RobesoN County.

INDICTMENT for perjury tried before Meares, J., and a jury at April Term, 1896, of the Circuit Criminal Court of RobesoN County. The defendant was convicted and appealed. The facts sufficiently appear in the opinion of Chief Justice EaiRolotu.

INDICTMENT for forcible trespass tried before Norwood, J. and a jury at Spring Term, 1896, of Eoksytii Superior Court. The defendant was convicted and appealed. The facts appear in the opinion of Associate Justice MONTGOMERY.

INDICTMENT for assault with deadly weapon, tried before Norwoods J., and a jury, at Spring Term, 1896, of Stoees Superior Couit. The defendant was convicted and appealed. The facts appear in the opinion of Chief Justice Fairoloth.

INUICTMENT for cruelty to animals, tried before Nor-wood, J., and a jury, at Spring Term, 1896, of Wilkes Superior Court. It is admitted that the defendant was the acting Chief of Police of Wilksboro, an incorporated town, which had an ordinance against animals running at large.

This was a criminal action, tried before Norwood, J., and a jury at Pali term, 1896, of Caldwell Superior Court for the willful and unlawful entry upon the land of another and carrying off or being engaged in carrying off any wood or any other property whatsoever growing or being thereon. It was shown in evidence that the defendant Louder milk made an entry on the 24th day of April, 1890, for 640 acres of land, making two calls, then saying various courses to the beginning.

<p>Costs in Criminal Actions — Liability of County.</p> <p>Where on appeal to the superior court from a judgment of a justice of the peace, in a matter in which he had final jurisdiction, a nol pros, was entered by the solicitor, it was error to tax the county with the costs accrued in the superior court.</p>

INDICTMENT for obstructing a road, tried before Bryan, J., and a jury, at Fall Term, 1895, of Watauga Superior Court. The jury returned a special verdict, the principal facts of which are set out in the opinion of Chief Justice FaiRoloth. His Honor held that, upon the special verdict, the defendants were not guilty and the Solicitor appealed.

INDICTMENT for burglary, tried before Brown, J., and a jury, at Spring Term, 1896, of Burke Superior Court. The facts appear in the opinion of Chief Justice Faircloti-i. The defendant was convicted and appealed.

PetitioN for the writ of Habeas Corpus. The defendant having been tried and convicted at August Term, 1896, of UNION Superior Court, of an assault and battery with a deadly weapon, and sentenced to ninety days imprisonment in the county jail, was put by the county commissioners into the custody of James Howie, Superintendent of the “chain-gang” of Union County, to be employed upon the public roads of the county.

<p>Indictment for Carrying Goneealed Weapon — Criminal Actions — Appeal—Failure to Docket — Duty of Clerk— Neglect of Duty by Public Officer.</p> <p>1. An appeal by the State in a criminal action not docketed in the Supreme Court until two terms have lapsed will be dismissed.</p> <p>2. It being the duty of a clerk of the superior court to send up the transcript of a record in a criminal action, whether the fees are paid or not, it seems that he would be indictable for neglect of duty.</p> <p>3. A mere servant or hireling' who carries concealed weapons on the premises of his employer is indictable.</p>

INDICTMENT for burglary, tried before Meares J., at April, 1896, Term of the Circuit Criminal Court of Meck-lenburg County.

IndictmeNT for secret assault upon one Barrett with intent to kill, etc., tried before Bryan, J., and a jury, at Spring Term, 1896, of Polk. Superior Court.

INDICTMENT for larceny, tried before Bryan, J., and a jury, at Spring Term, 1896, of Polk Superior Court. On the trial, Andrew Erwin, the prosecutor, testified that about a month before Christmas, 1895, he lost three chickens. His wife told him somebody was among his chickens. “ I was rocked, and my house was rocked, in the night time. I saw Jake Coy and Henry Holbut take the chickens. They knocked them out of the cedar trees. I never got the chickens back.

INDICTMENT for peddling without license, tried before Brown, J., and a jury at Fall Term, 1896, of Lincoln Superior Court. The defendant was convicted and appealed. The facts are stated in the opinion of Associate Justice MONTGOMERY.

INDICTMENT for burglary, tried before Boylein, J., at Fall Term, 1894, of Madison Superior Court. Tbe defendants were convicted and appealed. Before the appeal was called for trial they had escaped from custody and were at large. The case was continued from term to term and they are still at large.

<p>Practice — Appeal—Case on Appeal — Exceptions to Appellant's Statement of Case on Appeal</p> <p>The exceptions to the appellant’s statement on appeal should be specific ; and, where they are so general as to leave the case indefinite, it will be remanded to the court below in order that it may be settled by the judge.</p>

INDICTMENT for murder, tried at Spring Term, 1896, of Swain Superior Court, before Timberlahe, The evidence in the trial was very voluminous. It appeared therefrom that the prisoners and deceased, with others, were at a distillery, all more or less drunk, and some of them quarrelsome and disposed to “ pick at ” and annoy the deceased, who was lying down on the floor, half drunk.

In the contest for a seat in the House of Bepresentatives from Wake county between N. B. Broughton, contestant, and Jas. H. Young, contestee, J. C. Marcom, J. P., the Commissioner to take depositions, applied to D. H. Young, Clerk Superior Court of said county, for the duplicate ballot boxes, that he might make a recount of the ballots. This being refused, application was made to Mr. Justice Olabic for a rule on the Clerk to show cause why he should not grant the application.

<p>Motion to remand to the State Court.</p>