Volume 120 — North Carolina Reports

<p>Civil actioN, for the recovery of land, tried before Tim-berlake, J., and a jury, at Fall Term, 1896, of PasquotanK Superior Court. There was judgment for the plaintiff and defendants appealed.</p>

PiíocbediNG' for the partition of land tried on issues transmitted by the Superior Court Clerk of Dabe County, before Timberlahe, J., at Pall Term, 1896, of Dake Superior Courr. There was judgment for the defendant, and the plaintiff appealed.

<p>PROCEEDING for the sale of land for assets beard before Timberlake, J., at Fall Term, 1896, of OaMden Superior Court, on appeal from the judgment of tbe Clerk.</p> <p>From the judgment of his Honor, who held that the infant defendants were entitled to a homestead in the land sold, notwithstanding their failure to assert-their claim to it before the order of sale was made and the purchase money paid, the plaintiff appealed.</p>

PROCEEDING for the probate of a certain paper writing purporting to be the will of Sutton Davis and Henrietta Davis, his wife, heard before the Clerk of the Superior Court of Beaueort County, who refused to admit the instrument to probate, either as the joint will of the two or as the separate will of Sutton Davis, who had died. On appeal, His Honor, Timberlake, J., at ChaMbers, affirmed the judgment of the Clerk, and Thad.

Civil aotioN heard, on complaint and demurrer, before Timberlalee, J., at Fall Term, 1896, of Pamlico Superior Court. The action was brought by the heirs at law and distributees of S. H. Fowler, through their guardian, the plaintiff Daniels, against J. 0. Baxter, assignee of S. FI. Fowler, 0.

<p>Action by State to Vacate Fni/ty of Oyster Beds — Liability of State for Costs of Action — Costs—Fee Bill— Taxing Costs — Appeal.</p> <p>1. Under Section 536 of The Code the State is liable for the costs of an action instituted by the State Solicitor under the provisions of Section 4, Ch. 287, Acts of 1893, requiring him, as Solicitor, to bring an action to vacate an oyster bed entry upon the filing with him of an affidavit of five inhabitants of a county alleging that such entry is a fraud upon the State. In such case, it seems that the persons making the affidavit might be held liable as relators if it should appear that the action was for their benefit and at their instance.</p> <p>2. The fee taxable for “appeal and docketing in Supreme Court” is two dollars only.</p> <p>3. An action by the State to vacate an oyster bed entry being a civil action, a fee of one dollar for entry of judgment in term time is taxable against U'e State as the losing party.</p> <p>4. Where, in an unsuccessful action by the State to vacate an oyster bed entry, a judgment was rendered against the county for costs, but set aside on appeal, and subsequently the judgment was properly rendered against the State for costs, it was error to charge the State with the fees for the entry of the first judgment, and “appeal and docketing in Supreme Court ” on the appeal by the county.</p> <p>5. Costs are not allowed for docketing, filing and indexing a judgment against the State or county, since no lien can be acquired by such docketing.</p> <p>6. The fee of twenty-five cents for motion for judgment can only be taxed when the motion is a motion in the cause, in writing, and required to be recorded.</p> <p>7. An appeal lies to this Court from the erroneous taxation of items in bills of costs in the Superior, Court.</p>

Civil actioN, commenced before a Justice of the Peace by George W. Guilford, against the Board of Commissioners of Bean-fort County to recover fees as clerk of the Superior Court, heard on appeal and on complaint and demurrer before Bryan, J., at Spring Term, 1897, of Beaufort Superior Court.

PetitioN by the defendant for a writ of certiorari to bring up a case on appeal which was not .served within the time limited for the service.

Civil action, heaid before Melver, J., at May Term, 1895, of Halifax Superior Court, ou exceptions to report of W. E. Daniel, referee. Both plaintiff and defendants appealed from the judgm ent rendered. PLAINTIFF’S APPEAL.

Civil action for the recovery of laud, tried before Lob-insón, J., at Fall Term, 1896, of Halifax Superior Court. The facts appear in the opinion of the Court. There was judgment against the plaintiffs who appealed.

Civil actioN tried before Graham, J., at March Term, 1896, of Halifax Superior Court, a jury trial being waived. The facts appear in the opinion of the court. There was judgment for the plaintiff, and defendants appealed.

Speoial PbooeediNcj for fchs division of land commenced before the Superior Court Clerk of Halifax County, and beard, on tbe issues raised, before Boykin, -/., at September Term, 1895, of Halifax Superior Court, on an agreed statement of facts as follows: “1st. William F. Lara kin, late of said county and State, died on the 10th of January, 1866, leaving a last will and testament so executed as to pass both real and personal property, and which was duly proved at February…

Civil action, to be subrogated to the rights of the defendant, ~W. H. Johnston, as holder of a mortgage which plaintiffs, as devisees of their father, partially discharged with the proceeds of a life insurance policy belonging to them, tried before Robinson, J., at Fall Term, 1896, of Edge-ooMbe Superior Court, upon a case agreed. His Honor gave judgment for the' defendants, and the plaintiffs appealed. The facts are stated in the opinion of the court.

Ovil aotioN by the State on tbe relation of William Warren against Nathan Boyd, Constable, and the sureties on his official bond, for false imprisonment, tried before Robinson, The complaint was as follows: The plaintiff alleges:— 1.That the general election held in and for the County of Edgecombe, State of North Carolina, on the first Tuesday in November, 1892-, the defendant, Nathan Boyd, was duly elected Constable in and for the County aforesaid, TownshipNo. 1, for and…

Civil aotioN, heard before liobi-nson, J., at Fall Term, 1896, of Edgeoombe Superior Court. The facts appear in the opinion of the Court. There was judgment for the plaintiffs, and defendants appealed.

Civil aotioN, to recover money alleged to have been received for the plaintiff by the defendant and fraudulently misapplied by the defendant, heard before Graham, J., and a jury, at Spring Term, 1896, of Beetie Superior Court. There was a verdict for the plaintiff, and from the judgment thereon defendant appealed.

AotioN of claiM and delivery, tried before Hobinson, L., at Fall term, 1896, of Beetie Superior Court. A jury trial was waived, and the court found the facts.

Civil action tried before Robinson, <•/., and a jury at Eall Term, 1896, of Bebtie Superior Court. The action was instituted by the plaintiff, as the alleged grantee of Thomas Gilliam, to ha\e the defendants declared trustees of and to convey certain lands to the plaintiff for life, with remainder in fee to her children, according to the limitations in a deed alleged to have been made and delivered by said Gilliam, and subsequently destroyed.

Civil actioN, for damages arising from an alleged breach of warranty of title, tried before Robinson, J., and a jury, at September Term, 1896, of Beiitie Superior Court. The facts sufficiently appear in the opinion of the court. There was judgment for the plaintiff and defendant appealed, assigning as error the refusal to give the instruction referred to in the opinion

Civil actios, for tbe recovery of land, tried before Robinson, J., at Fall Term, 1896, cf BeRtie Superior Court, upon an agreed statement of facts, a jury trial being waived. Tbe land in controversy was conveyed on tbe 5 th day of July, 1849, by Henderson Wilson, the ancestor of plaintiffs, to trustees for Oriental Lodge, No. 24, Independent Order of Odd-Fellows, v¡ bicb was incorporated under an Act of tbe General Assembly of North Carolina, at its session of 1850.

Civil actioN, tried before Robinson, J., at Fall Term, 1896, of Beetle Superior Court. The action was for timber cut by defendant from land theretofore cultivated and not included in a contract be-tw een the parties.

<p>Civil aotioN, to recover land, tried before Góble, J., and a jury, at May Term, 1895, of Vance Superior Court. There was judgment for the defendants, and plaintiffs appealed. A full statement of the facts is contained in the opinion of the Court.</p>

Civil ACTION, pending in Vance Superior Court for an injunction to restrain a sale under execution and for a receiver, heard before Timberlahe, J., at Chambers in Louis-burg, January 16, 1896. The defendant appealed from the order appointing a receiver and continuing the restraining order.

PetitioN for sale of land for assets to pay debts, commenced before the Superior Court of EeaNiclin county, transferred to Term on issues raised before the clerk, referred to W. 13. Shaw , Esq., and heard on exceptions to the referee’s report, before Melver, </., at Fall Term, 1895, of said court. From a judgment directing a sale of the land by the administrator, the defendant, Speed, appealed. The facts appear in the opinion of the court.

Aotion oe trespass quare clausum fregit, tried before .Boykiu, J., and a jury, at March Term, 1896, of Pitt Superior Court, iuvolviug tbe title to laud described in tbe complaint as follows: “Lying on tbe Pea Branch Pocosin, beginning at a pine, slanding in tbe branch below tbe Bee Gum Island, and running with tbe middle of saicl branch, tbe courses thereof, to tbe line of tbe Thomas Jordan land (now owned by tbe plaintiff), and then with said line to a corner of tbe lands…

<p>Civil action, tried before BoyJdn, L, and a jury, at January Term, 1896, of Pixr Superior Court. The nature of the action, and facts upon which it- was based, -are stated in the opinion of the court. There was a verdict for the plaintiffs and from the judgment thereon the defendants appealed.</p>

Civil aotioN, for the cancellation of a deed, tried before Graham, J., at Fall Term, 1896, of Pitt Superior Court, on a case agreed as follows: “1.

Civil actioN, for debt, tried before Boykin, Jand a jury, at Spring Term of Pitt Superior Court. The facts are stated in the opinion of the court. Judgment was rendered for the plaintiff, declaring the land of tbe defendant corporation, mortgaged within sixty days before beginning of the action, to be subject to the payment of the judgment. Defendants appealed.

Civil actioN, tried before Graham, J., and a jury, at December Term, 1896, of Pitt Superior Court. The facts are stated in the opinion of the court. From a judgment for the plaintiff the defendants appealed.

Civil actiot, tried before Graham, J., at December Term, 1896, of Pitt Superior Court. There was judgment for the defendants and plaintiff appealed.

Civil aotioN, tried before Boykvn, J., and a jury, at April Term, 1896, of FRANKLIN Superior Court. The nature of the action and the facts are stated in the opinion of the court!

PetitioN for Habeas Corpus, by Ernest F. Young and FI. G. Connor, guardians, and Eettie R. Seltzér, to have the persons of their wards committed to them, pending in 'Wll-soN Superior Court, and heard before Robinson, J., at Chambers, in Goldsboro, on the 1st day of January, 1897. From an order dismissing the petition, the petitioners appealed.

MotioN to continue a restraining order granted by Mo-Iver, Jat Chambers, February 8, 1896, and for the appointment of a receiver heard before him at Chambers, in Littington, N. C., on February 8, 1896.

Peooeeding for the partition, of the land of Lewis Pip-kin, deceased, beard, on appeal from the Clerk, before Mc-Iver, , at Spring Term, 1896, of Harnett Superior Court. From a decree confirming the report of the commissioners, the defendant, J. W. Pipkin, appealed.

<p>Action to Recover Land — Deed—Privy Examination of Married Women, Validity of — Registration of Deeds, Extension of Time for — Witness—Competency—Transactions with Deceased Persons — Section 590 of The Code.</p> <p>1. The probate of a deed and the privy examination of a married woman taken in July, 1868, before the chairman of the old County Court when the court was not in session, was valid under Ch. 36, Acts of 1868-’69.</p> <p>2. Statutes extending the time for the registration of conveyances of land are valid, and deeds of gift are embraced in their provisions.</p> <p>3. Where, in the trial of an action to recover land, the defendants claim under a deed alleged to have been made by the plaintiff to their ancestor, the plaintiff is not competent (under Section 590 of The Code) to testify that the deed was a forgery.</p> <p>4. A feme plaintiff in action to recover land against defendants who claim under a deed alleged to have been made by her and her husband to the ancestor of the defendants is not disqualified, under Section 590 of The Code, as a witness to prove that she never appeared before the officer who certified the probate of deed alleged to have been signed by her, and was never privily examined by him, such officer being dead and no representative- being a party to the action. In such case, however, the proof necessary to impeach the certificate of probate should be strong, clear and convincing.</p>

MotioN to set aside a judgment rendered by default final on an open account on the failure of defendants to appear and answe1-.

<p>Devise — Life Estate — Bide in Shelley’s Case— Will, Construction of — Evidence—Insanity of Mortgagor— Collateral Attach on Judgment — Innocent Purchaser.</p> <p>1. The rule in Shelley’s Case, though antiquated and based upon reasons which have long ceased to exist, is in force in North Carolina ; and, hence, a devise to a person “during his natural life and at his death to his bodily heirs,” vests in him a fee simple estate.</p> <p>2. A deed executed by a testator to one child several years before the date of his will and having no connection therewith, is not admissible to explain the terms of a devise, contained in the will, to another' child.</p> <p>3. In the trial of an issue as to the insanity of a mortgagor, evidence that, at the time of former proceedings against him for the foreclosure of a mortgage, he was in poor health and could not attend to ordinary business and occasionally had fits and spasms and had been declared an inebriate, was insufficient to go the jury.</p> <p>4. Where a judgment of foreclosure was rendered in an action in which the question of the insanity of the mortgagor was raised, the mortgagor is estopped thereby and such judgment cannot be collaterally attacked thereafter on the ground of his insanity.</p> <p>5. A Iona fide purchaser at a forclosure sale without notice that the mortgagor defendant in the action was insane, will be protected though the judgment, in proper proceeding for the purpose, should be set aside on the ground of such insanity.</p>

CONTROVERSY without action, submitted upon facts agreed, and heard before Boykin, J., at October Term, 1896, of Ware Superior Court. The affidavit required by Section 567 of the Code was not made or does not appear in the record. Judgment was rendered for the plaintiffs and defendant appealed.

AotioN oír EJECTMENT, tried, at October Term, 1896, of WaKe Superior Court, before Boyl&in, A, and a jury. Defendants set up an equitable claim to the land, alleging in their answer that the deed upon which plaintiff relied was made to her mother through a mistake, and that the defendants paid for the land. The plaintiff offered in evidence the will of her mother, Minerva Blake, and also a deed of one Andrews, reciting that the purchase money was paid by her mother.

ActioN by Daniel L. Russell, Governor of North Carolina, against Hal. W. Ayer, State A-uditor, for a peremptory mandamus, commenced in the Superior Court of Wake county, and heard on complaint and demurrer before Adams, J., at Chambers, in Raleigh, in April, 1896.

AotioN by the State of North Carolina on the relation of Zeb Y. Walser, Attorney Genera!, W. R. Wood and others, against J. C. Bellamy and others, to have the rela-tors, other than the Attorney General and W. R. Wood, declared to be the trustees of the Central Hospital for the Insane, near Raleigh, and W. R. Wood declared to be the principal and resident physician of said hospital and to compel the defendants, who claim to be directors and superintendent of such hospital, to…

<p>Civil aotion, to recover part of plaintiff’s right of way-in the town of Apex, which was claimed, by defendant, tried before Boyl&in, J., and a jury, at October Term, 1896, of Waice Superior Court.</p> <p>The ordinary issues in ejectment (except as to- damages) were submitted and found in L.vor of the plaintiff, and from the judgment thereon defendant appealed.</p>

On the oth day of December, 1896, T. D. Waller, an elector and taxpayer of Granville county, made and filed the following affidavit before Graham,. J., at Oxford, N. C.: UT.

Civil aotioN, for mandamus, tried before Allen, J., at January Term, 1897, of GraNville Superior Court, on an agreed statement of facts which are summarized in the opinion of the court.

Civil aotioN, to recover laud, beard before Mclver, J., at Fall Term, 1895, of G-kaNvillic Superior Court. The facts appear in tbe opinion of the court. From the judgment rendered the defendant, Stanton, appealed.

<p>MotioN to dismiss appeal of plaintiff from judment rendered against bim at July, 1896, Term of Gbanviilb Superior Court, before Mclver, J. •</p>

Civil aotioN, to recover, the value of cross ties, tried before Molver, J., at July Term, 1896, of G-baNville Superior Court, before Molver, J., and a jury. There was a verdict agaiust the defendants, and from a judgment thereon plaintiff defendant, Bullock, appealed. The facts appear in the opinion of the court.

AotioN OR claim and DELIVERY, tried before Melver, J., at July, 1896, Term of Granville Superior Court, A jury trial was waived aud his Honor found the facts. The action grew out of the matters embraced in the case of Hunt v. Wheeler, reported in 116 N. C., 422.

Issue of devistmit vel non, tried before (Jodie, J., and a jury, at January Term, 1896, of G-eaNville Superior Court. There was a verdict for the propounders, and from the judgment thereon the caveators appealed.

Civil action, tried before McIver,J., and a jury, at Pali Term, 1896, of Obange Superior Court. There was judgment for the defendant and plaintiff appealed. The appellant applied in this court for a certiorari.

<p>Action on Note — Issues—Practice—Evidence—Presumption— Married Woman — Assent of Husband to Wife’s Contract.</p> <p>1. Where an action in the nature of a creditor’s bill proceeded to final decree and a note which had been executed to a commissioner appointed in the cause was, by the decree, turned over to one of the parties to the suit, the remedy of the owner was by action thereon and not by motion in the cause. »</p> <p>2. In an action on a note, an issue involving the enquiry whether defendants were indebted to plaintiff and, if so, in what amount, was sufficient to enable defendants to have the question of plaintiff’s ownership of the note passed on by the jury.</p> <p>3. Where, in an action on a note, the defendant admits its execution and the plaintiff produces it on the trial, the presumption raised by the law that the plaintiff is the rightful owner is not rebutted by the defendant’s denial of such ownership in the answer.</p> <p>4. The contract of a married woman, made against her interest, and for which she receives no valuable consideration, is invalid without her husband’s consent.</p>

Civil aotioN, to recover twice the amount of usurious interest paid by plaintiff to defendant, Building and Loan Association. There was judgment for the plaintiff and defendant appealed.

Civil actioN, for damages to a lot of tobacco, tried before Molver, J., and a jury, at June, 1896, Special Term of G-uilfoed Superior Court. There was a verdict for plaintiffs and from the judgment thereon defendants appealed.

Civil actioN, to recover land, tried before Mclver, J., and a jury, at July Special Term, 1896, of G-uilfojkd Superior Court. The plaintiff introduced a mortgage deed executed by John Puryear and wife (signed “Pryer”), non-payment of the debt, sale under the mortgage by the mortgagor, deed to purchaser and deed from purchaser to plaintiff. Defendants claimed as heirs of John Puryear.

Civil action, for damages, for unlawfully causing the arrest of plaintiff and the abuse of legal process, tried before Molver, Jand a jury, at July Special Term, 1896, of GroiLRORD Superior Court.

<p>A ction on Sheriff’s Bond— Official Bonds— Condition — Sureties.</p> <p>1. Although Section 2073 of The Code prescribes that one of the bonds</p> <p>required to be given by the Sheriff of a county must be conditioned for the settlement of the “ county, poor, school and special taxes,” yet where the bond given by a Sheriff was conditioned for the settlement of the “ county taxes due to said county,” the omission of the words “ poor, school and special” did not contract or abridge the liability of the sureties for the Sheriff’s default as to school taxes, since, under Section 1891 of The Code, the bond may be put in suit for the benefit of the person injured, notwithstanding any variance in the penalty or condition of the instrument from the provisions prescribed by law.</p> <p>2. The ‘ ‘ county ” bond of a Sheriff is liable for any school taxes, whether belonging to the State or county school fund.</p> <p>3. The Board of County Commissioners are the proper relators in an action against a defaulting Sheriff to compel the settlement of school taxes.</p>

Civil action, on a policy of insurance, tried at November Term, 1896, of Lenoir Superior Court, before Coble, J., and a jury. The following were the issues submitted to the jury and the responses thereto: 1. Was the plaintiff, Nelson, the owner of the said building destroyed? Answer: Yes.' 2. Were the buildings described in the said policy of insurance destroyed by fire on February 28, 1895? Answer: Yes. 3.

<p>Petition by plaintiff for a rehearing of case between same parties reported in 118 N. C., 532.</p>

<p>PetitioN to rehear the case between the same parties, reported in 119 N. 0., 318. The petition was as follows:</p> <p>“The defendants, Friday Hill and wife, Lizzie Iiill, respectfully petition the court to grant them a rehearing of the above-entitled action, which was heard during the Fall Term, 1896, of said court, upon the grounds and errors following, to-wit:</p> <p>ul. That your Honors refused to’ grant a new trial for an error apparent in the record, to-wit: The said action was tried in the Superior Court of Duplin county before a jury, and issues tendered by the defendants, which were refused, and exception by the defendants, and issues wete submitted to the jury and found by them; notwithstanding this, the case on appeal does not state there was any jury trial, and in this, and other matters, contradicts the record, all of which matters seem to have been overlooked by your Honors, wherein there is error.</p> <p>“2. In holding that none of the questions argued are presented by the record; for that the facts are found by tbe trial court, and assignments of error sufficiently definite are presented for tbe court to pass upon; and bolding otherwise, there is error in the opinion.</p> <p>Davenport v. Leary, 95 N. 0.. 203.</p> <p>“3. Tbe facts found, in substance, are: L. Hussey, tbe plaintiff, bolding a first mortgage, and at tbe same time a second mortgage by an equitable assignment, now sought to be foreclosed in this action, sells to a stranger, W. L. Hill, for value, tbe said first mortgage by an equitable assignment. Said Hill advertises", under tbe power contained in tbe mortgage, and sells publicly; and a Iona fide purchaser, for value, buys at said sale; a deed recited the power under which [sale] was had, conveying a fee, which said purchaser takes tbe open and notorious possession of tbe land, rents it out, receives the rents and profits for one year, then himself sells to Friday Hill, for value, making deed in fee, with full covenants of warranty. The propositions arising upon these facts are: First, is L. Hussey estopped to set up bis second mortgage by reason of bis equitable assignment to W. L. Hill, and Hill’s subsequent sale, etc., and deed to a bona fide purchaser,, under whom Friday Hill claims?. Second, does Friday Hill bold the fee simple title by reason of tbe fact that h6 stands in the shoes of J. S. Wilson, an innocent purchaser for value? Third, if Hussey is not estopped by reason of bis assignment and subsequent sales, etc., thereunder, etc., has Friday Hill, by reason of the fact that be stands in Wilson’s shoes, acquired tbe title and interest which are conveyed to Wilson and bis grantor under Hussey’s equitable assignment? In holding th»t these questions do not arise in this controversy, and ought not to be decided in this action, there is error, and tbe highest authorities in tbe land have been overlooked.</p> <p>“é. In bolding that the preceding- questions can only arise betv, een the purchaser under the foreclosure proceedings in this action and the defendants, there is error, because the defendants would be estopped by the judgment— certainly, if the plaintiff Hussey, or either of them, should purchase; because all the defences, of defendants have been set up in this action, and it seems to us Friday Hill, defendant, would be estopped by the judgment to set up title outstanding against their purchaser under said judgment.</p> <p>“S. That the judgment rendered in the Superior Court is properly secured.</p> <p>“6. That John A. Gavin, commissioner appointed by the decree herein, has advertised the lands described in the complaint for sale at the Court House door in Kenansville, on the 17th of February, 1897.”</p> <p>Wherefore your petitioners pray—</p> <p>“1. That a rehearing be granted them -for the errors specified and assigned.</p> <p>“2. For an order restraining said commissioner from selling the said lands until the rehearing of the cause in the Supreme Court.</p> <p>“3. For such other and further relief as to the court may seem just and equitable.”</p>

Civil actioN, for the recovery of land, tried before Coble, J., at December Term, 1896, of DupliN Superior Court, on petition of defendant for allowance for betterments. His Honor denied the motion, setting out in his judgment the judgment rendered at December Term, 1895, of said court by Timberlake, J., from which the facts involved can be gathered.

AotioN for damages for unlawful entry by defendant on land which he had leased to the plaintiff, tried before Star-buck, J., and a jury, at January Term, 1896, of New Hanover Superior Court. The issues submitted to the jury, and the references thereto, were as follows: “I. Did the plaintiff abandon the land described in the lease? A. No. II. Did the plaintiff, on his part and before the entry of the defendant, comply with the terms of the lease? A. Yes. III.

Civil action, for the foreclosure of a mortgage, tried before Starbuok, J., and a jury, at November Term, .1896, of CUMBERLAND Superior Court. The facts sufficiently appear in the opinion of the court. There was a verdict followed by judgment for the defendant and plaintiff appealed..

Civil actioN, for the recovery of land, commenced in April, 1892, and tried before Norwood, J., and a jury, at July Term, 1895, of Cabaeeus Superior Court. The plaintiffs claimed aone-balf interest in the land described in the pleadings, it being admitted that defendant owned the other half. The plaintiffs claimed as the children and heirs at law of J. O. Pharr, and in order to show color of title introduced a deed from A. P. and J. J. Pharr to J. 0.

Civil aotioN, for the recovery of land, commenced in April, 1892, and tried before Norwood, Y, and a jury, at June, 1895, Term of Oabareds (Superior Court. The facts are the same as in the case of Morrison, et al., v. Craven, ante., except that it appeared on the trial that the feme plaintiff, Cross, bad a guardian from ber early infancy in 1862 until after ber marriage, wbicb was during ber minority.

Civil actioh, pending in DavidsoN Su perior Court. From a judgment committing tbe defendant to jail for contempt of court, be appealed.

<p>Statute, Construction of — Banks and Banking — Lien on Stock of Debtor Stockholder — Failure of Bank -to Organize Within Two Years from Date of Charter — Corf oration — Quo War-ranto.</p> <p>1. A statute which gives to a bank a lien on the stock of a stockholder indebted to it is in derogation of common right, and must be strictly construed to the purposes of its enactment.</p> <p>2. The lien given to a bank by its charter upon the stock of a stockholder indebted to it extends only to indebtedness incurred directly by such stockholder to the bank and not to his indebtedness to a third person acquired by the bank.</p> <p>3. Such lien is not extended to notes of a stockholder to a third person, taken by the bank as collateral from such person, merely by the fact that the stockholder was at the time president of the bank.</p> <p>4. The fact that a bank failed to organize within two years after it was chartered (Section 688 of The Code) cannot affect the validity of whatever lien the bank may, by its charter, have on shares of stock of a stockholder indebted to it. Such defect in the organization of the bank can be taken advantage of only by a direct proceeding by the State for the purpose.</p>

This was a motion made by the plaintiff before Clerk of the Superior Court of Wilkes county, to re-tax bills of cost theretofore made out and taxed against the plaintiff, and from the judgment of the Clerk the plaintiff appealed to his Honor L. L. Green, Judge, at Chambers. The summons issued in the original cause July 9, 1895, returnable to Fall Term, 1895. The complaint, alleging injury to plaintiff’s land, was filed July 15, 1895.

Civil aotioN, beard before Hohe, A, at January, 1897, Special Term of Foesyth Superior Court, on a case agreed as follows: Facts agreed: ‘ ‘Ruth Hairston is tbe wife of William Hairston, wbo is now dead, and R. B. Glenn is bis administrator. Richard Hairston and Ruth Hairston, are tbe sole legatees of William Hairston’s estate. There are no creditors. W. Hairston worked for wages in a factoiy, and, with bis consent and knowledge, Rutb did tbe same.

ActioN to recover land, tried before HoT&e, J., and a jury, at January, 1897, Special Term of Foesyth Superior Court. Upon an intimation from bis Honor that plaintiff could not recover such part of Lot No. 12 as vs as covered by the “Hotel Bethel,” the plaintiff took a non-suit and appealed.

ActioN for divorce, tried before Holce, J., and a jury, at January Special Term, 1897, of Foksyth Superior Court.

Civil aotioN, for the purchase price of land, tried before Brown, J., and a jury, at December, 1895, Special Term of Fobsyth Superior Court. There was a verdict, followed by judgment, for the plaintiff and defendant appealed .

Civil aotioN, tried before Hoke, and a jury, at January, 1897, Special Term of Forsyth Superior Court upon appeal. The plaintiff complained for the value of a package worth $27.50 which it delivered to defendant in April, 1893, to be shipped to Ratan, 'Mexico, and which was not delivered as agreed.

Civil aotioN, tried at January, 1897, Special Term of Fohsyth Superior Court before Holce, J., and a jury.

Civil action, beard before Hoke, The defendant appealed from the order confirming the sale of the lands embraced in the mortgages, a part of which had been allotted to him as a homestead, and which, in the original order of sale, the Commissioner had been directed not to sell, but by a subsequent order he was directed to sell in case a resort to it should be necessary to discharge the liens.

<p>Action to Set Aside Fraudulent Conveyance — Fraudulent Intent — Trial — Burden of Proof — Evidence—Dealings Between Mortgagor and Mortgagee.</p> <p>1. Where, in the trial of an action to set aside a sale as fraudulent, it appeared that the relation of the parties to the sale was not such as to raise a presumption of fraud, the burden of proving fraudulent intent was properly put upon the plaintiff.</p> <p>2. Where, in the trial of an action to set aside a sale as fraudulent, the trial judge, in reciting the several grounds on which the jury might find a sale void, as in fraud of grantor’s creditors, inadvertently used the conjunction “and,” but in a subsequent part of the charge stated the grounds properly, connecting them with the disjunctive “or;” Held, that the error was cured.</p> <p>3. Where the burden of provingthe bonafides of a transaction is upon the defendant, he may, without introducing any evidence, rely on evidence introduced by the plaintiff from which, if sufficient, the jury may find the transaction to have been in good faith.</p> <p>4. Inadequacy of price will not, in itself, vitiate a transaction; and, where a pledgee of stocks of the face value of §21,000 bought them from the pledgor for §7,000, and the jury found that the transaction was bona fide, but that the stocks were worth §8,500, the sale will not be declared a legal fraud and void.</p>

Civil, actioN, tried before Hoke, J., and a jury, at January, 1897, Special Term of Foesyth Superior Court. The facts appear in the opinion. In deference to the opinion of his Honor, the plaintiffs submitted to non-suit and appealed.

<p>Civil actioN, for the recovery of land, tried before Hoke, Jand a jury, at January, 1897, Special Term. Under the instructions of his Honor, the jury rendered a verdict for the defendant and plaintiff appealed.</p>

Civil aotioN, beard on complaint and demurrer, before Bryan, J., at Spring Term, 1896,.of Wautauga Superior Court. The complaint was as fellows: “The plaintiff in the above entitled action, complaining of the defendants, alleges: “1. That on the 30th day of .May, 1888, F. M. Hodges and R. A. Adams, doing business under the style and firm of Hodges & Adams, executed their promissory note to L._ A. G-reen for the sum of $600, with J. L. Hodges, Wm.

Oitil aotioN, tried before Norwood, J., and a jury, at Fall Term, 1896, of Caldwell Superior Court. In deference to the opinion of bis Honor, that she could not recover, plaintiff suffered a non-suit and appealed.

<p>Civil actioN, tried before Norwood, J.\ and a jury, at Spring Term, 1897, of StaNly Superior Court. From a judgment of non-suit the plaintiff appealed.</p>

AorioN to recover laud, tried before Robinson, J., and a jury, at Spring Term, 1895, of Stanly Superior Court. The facts are set out in the. opinion. The re. was a verdict, followed by judgment for the plaintiffs, and defendants appealed.

<p>MotioN to vacate an attachment, heard before Norwood, J., at Spring Term, 1897, of Stanly Superior Court iu an action for damages arising out of an alleged breach of contract.</p> <p>The affidavit to procure the attachment, and upon which the order of attachment was made, is as follows, viz. :</p> <p>“Henry A. Judd, being duly sworn, says: That the Crawford Gold Mining Company, the defendants, are justly indebted unto Henry A. Judd and Bichard Eames, Jr., the plaintiffs, in the sum of $2,500, as nearly as he can ascertain the same, over and above all discounts w hich the said defendants have against them, which debt arose upon a contract of defendants to purchase the Ingram and Fesper-man mining tract, and failure to perform said contract or agreement, and also for contract for services rendered in making maps and reports upon said properties, and that the said defendants are a domestic corporation chartered under laws of North Carolina, and have property in Stanly county, North Carolina. And this deponent further says: That said defendants, the Crawford Gold Mining Company, are about to assign or dispose of their property with intent to defraud plaintiffs.”</p> <p>The defendants entered a special appearance for the purpose of making motion to vacate, and moved to vacate the attachment:</p> <p>1. Because this action is for unliquidated damages, and an attachment will not lie and cannot issue.</p> <p>2. Because of the insufficiency of the plaintiff’s affidavit to procure the attachment, in that it states, “that the defendants are about to assign or dispose of their property with intent to defraud plaintiffs,” and does not state any reasons or grounds for this assertion.</p> <p>ITis Honor, after hearing this motion, gave judgm ent declining to grant the defendant’s motion, and refusing to vacate the attachment. From this judgment defendant appealed.</p>

AotioN by plaintiffs as tenants in common against their co-tenants and life tenant for waste, heard before Norwood.I, J., at Spring Term, 1897, of Stahly Superior Court. Upon an intimation by the court that plaintiffs could not maintain the action, they suffered a non-suit and appealed.

Civil actioN, pending in Mecklenburg Superior Court, heard on case agreed before Norwood, J., at Chambers, on 12th of April, 1897. His Honor rendered judgment for the defendant and plaintiff appealed.

Civil aotioN, for the recovery of personal property, tried before Norwood, J., and a jury, at January Term, 1897, of Meciclenburg Superior Court. There was a verdict for the defendant and from the judgment thereon plaintiff appealed.

<p>Practice — Setting Aside Verdict — New Trial — Discretion of Trial Judge.</p> <p>This court will not interfere with the discretion of a trial judge in setting aside a verdict as being against the weight of evidence.</p>

Civil aotioN, tried on appeal from a Justice’s court, before Norwood, J., and a jury, at March Term, 1897, of MboKlenbueg Superior Court. Held: then the defendants would not be tenants from year to year and would have the right to terminate the relation, of landlord and tenant at any time.” The instructions were refused. There was verdict for the plaintiffs, and from the judgment thereon defendants appealed.

CONTROVERSY submitted to the court without action, under Section 567 of The Oode, and heard before Norwood, J., at Chambers, on the 6th day of April, 1897. Elis Honor adjudged that the city of Charlotte had the power to issue the bonds mentioned in the case agreed and to levy taxes for their payment, and gave judgment for the plaintiff, from, which defendants appealed.

Civil actiuN, tried before Norwood, J., and a jury, at March Term, 1897, of MeoicleNbubg Superior Court. The plaintiff tendered the following issue, which .was adopted by the court: “Are the defendants indebted to the plaintiff, and, if so, what is the amount of the indebtedness?” The plaintiff offered in evidence a note signed by E. F. McCoy andJB.

<p>Civil aotioN, pending in the Superior Court of JVIeokleN-bueg county, instituted by the plaintiffs as stockholders of the defendant corporation, for the appointment of a receiver and to have paid to them, the plaintiffs, the amounts due to them on paid-up stock. Eeceivers were appointed, who made a report to the court that the assets would not be sufficient to repay to the stockholders the amounts they had paid into the association, made certain recommendations and asked the court for instructions and orders. His Honor, W. L. Norwood, Judge Presiding, made the following order:</p> <p>“Upon reading and considering the petition of J. W. Iveerans and E. T. Cansler, receivers, it is ordered that the said receivers be directed to call upon the borrowing members of the North Carolina Building and Loan Association to pay into their hands the net amount due from the said borrowing members to the association, the amount so due and called for to be ascertained as follows: that is to say, by charging the borrowing member with the sum paid to him by the association, and interest thereon according to contract, and giving him credit for all sums paid in by him with like interest thereon,.except fines collected, if any, the matter of said lines to be left open for future settlement under a further order of this court; and that if any borrowing member shall fail to respond .to this call within a reasonable time after it is made, W. C. Maxwell, trustee, and the receivers shall proceed to exercise the power of sale conferred upon W. C. Maxwell by such borrowing member and fully set out in the deed of trust made by him, and, out of the proceeds of the sale of the property thus made, the said trustee shall pay to the receivers che amount due to the association according to the rule of the Mills case, and shall hold the balance of the purchase money subject to the further order of this court and the final adjustment of the account between the borrowing member and the receivers and the association.</p> <p>“The receivers will make no further call upon such of the borrowing members as will respond to the call directed by this order, until further direction of the court They will report hereafter, as soon as practicable, the exact status of the affairs of the corporation, and the amount of deficiency of its assets, to the end that an adjustment of such loss or deficiency may be made among the members of the association, and no mortgage or trust deed made for the benefit of the association shall be cancelled or marked satisfied by the trustee or receivers until.a final adjustment of the account between the borrowing member and the association is made under the order of the court.</p> <p>The plaintiff, John P. Long, excepted to and appealed from the said order upon the following grounds:</p> <p>“I. That the court ordered that the said receivers be directed to call upon the borrowing members of the North Carolina Building and Loan Association to pay into their hands the net amount due from the said borrowing members to the association, the amount so due and called for to be ascertained as follows, that is to say, by charging the borrowing member with the sum paid to him by the association, and interest thereon according to the contract, and giving him credit for all sums paid in by him with like interest thereon, except fines, if any, the amount of such fines to be left open for future settlement under a further order of this court, the said John P. Long, contending that the court had no right to order a settlement to be made in the manner aforesaid, and especially that the court had no right to exclude from the said settlement the fines paid by the borrowing members.</p> <p>“II That the court ordered that if any member should fail to respond to said calL within a reasonable time after it is made, "W. C. Maxwell, trustee, and the receivers should proceed under the power given in the deeds of trust to sell the land conveyed thereby and, out of the proceeds of the sale, that the trustee should pay the receivers the amount due the association according to the rule of the Mills case and should hold the balance of the purchase money subject to the further order of this court and the final adjustment of the account between che borrowing member and the receivers, and the association, the said John P. Long contending that the court or'Judge had no right to make any such order, or to order a sale of the land under the deed of trust and the application of the proceeds and the retention of the balance of the purchase money, as above set forth.</p> <p>“III. That the court further ordered that no further call be made on such of the borrowing members as responded to the call directed by said order, until the further direction of the court, and that the receivers report as soon as practicable the exact status of the affairs of the corporaticn and the amount of the deficiency of the assets, to the end that an adjustment of such loss or deficiency may be made among the members of the association and that no mortgage or trust deed made for the benefit of the association shall be cancelled or marked satisfied by the trustee or receivers until the final adjustment of the account between the borrowing members and the association is made under the order of the court, the said John P. Long contending that the court had no right to make such an order, and especially that the court had no right to withhold an adjustment and settlement from the borrowing member and the association or the receivers, until a report is made by the receivers and the status of the association and .the amount of the deficiency of its assets, if any, is ascertained, and especially the court had no right to order that no mortgage or deed of trust made for the benefit of the associa' tion should be cancelled or marked satisfied by the trustee or receivers until s final adjustment between the borrowing member and the association, under the rule laid down by the court, thereby depriving the mortgagor or borrowing member or trustor from settling with the association upon payment of the amount justly due by him.”</p>

ActioN of quo wcvrranto by the State, on the relation of J. H. Quinn against T. D. Lattimore, to tiy the title to the office of Clerk of the Superior Court of Cleveland county, heard., on exceptions by both parties, to the report of the referee, before Bryan, J., at Spring Term, 1896, of Cleveland Superior Court. His Honor gave judgment for the •defendant and both parries appealed.

<p>PktitioN, by the executors of John Shute, deceased, against his devisees, to have certain sales of land, made by them under power contained in the will, confirmed, commenced before the Clerk of the Superior Court of ÜNion county, and heard on appeal before Norwood, </., at January Term, 1897, of said Superior Court. His Honor gave judgment confirming the sales and defendants appealed.</p>

Civil aotioN, tried at April Special Term, 1896, of BuN-oombb Superior Court, before Hoke, J., and a jury. The plaintiff sued for §347.50, the contract price of a lot of shoes, manufactured for defendants, under their order, which they countermanded before the work was finished. Notwithstanding the rescission plaintiff finished and shipped the goods to defendants.

Civil action, brought by the State, on relation of S. C. Wilson, widow of John W. Wilson, on the administration bond of the defendant, Clara M. Featherstone, heard on exceptions to the report of a referee at December Term, 1896, of BüNoombe Superior Court.

J., at December Term, 1896, of Buxcombe Superior Court. John Wilson died in August, 1893, leaving certain property, which descended to. his only child, Clara Feather stone, and out of said property his widow (the plaintiff) was allotted her dower, the same consisting of certain lands, “together Avith the improvements thereon.” After the allotment of dower defendants built a high fence on three sides of the property so allotted, completely closing up every window on three…

Civil acttoN, for a mandamus to compel the defendants, the Board of Commissioners of JaoKSON county, to build a bridge, heard before Timberlake, J., at Spring Term, 1896, of JaoKSON Superior Court. A peremptory mandamus was granted and defendants appealed.

<p>Civil aotiost, begun before a Justice of the Peace, against J. L. Murray and P. L. Lance, and carried by appeal to the Superior Court of BuNcoMbe county. Pending the action, J. L. Murray died, and the defendants, Harkins and Rankin, his executors, were made parties. The matters involved were referred and the case was heard, on exceptions, to the report of the referee, before Bryan, J., at December Term, 1896. Judgment was rendered for the plaintiff and defendants appealed.</p>

<p>Appeal from JBrycm, J., at Chambers, for refusal to set aside a judgment in. a special proceeding. The plaintiffs filed their petition for partition before the Clerk of BuN-ooMBE Superior Court, making the other tenants in common defendants, averring that an actual partition would be injurious for reasons set out and praying a sate for partition. The defendants answering admit all the allegations of the complaint except on this point, and aver that actual partition is desirable, and that a sale at the present depressed state of prices would be injurious. The Clerk decreed actual partition by metes and bounds and appointed commissioners. Erom this judgment the plaintiffs appealed, the papers being sent to the Judge at Webster, in Jackson county, in the same district, who reversed the Clerk and directed that the property be sola for partition. The defendants moved subsequently to set aside the order as irregular, and on the refusal to vacate, appealed to this court.</p>

Civil action, tried before Bryan, J., and a jury, at August, 1896, Term of Buncombe Superior Court. The facts are stated in the opinion of the court. There was a verdict for $267.96 in favor of the plaintiff, and from the judgment thereon defendants appealed.

Civil aotioN, for damages for slander of plaintiff’s title, whereby he lost an opportunity to make an advantageous sale of land, tried before Brycm, J., and a jury, at Fall Term, 1896, of Clay Superior Court. On the trial, and after the plaintiff’s evidence was closed, his Honor intimated that plaintiff could not recover and plaintiff took a non-suit and appealed.

Civil actioN, tried before Timberlake, Jand a jury, at Spring Term, 1896, of CheroKee Superior Court. On tbe trial, after tbe plaintiff bad rested bis case, bis Honor held that plaintiff could not recover and entered judgment for defendants, from wbicb plaintiff appealed.

<p>Action on Note — Payment—Hmdence.</p> <p>In the trial of an action on a note given by 0, defendant’s intestate, to M, endorsed by M to plaintiff, which purported on its face to he for the balance due plaintiff for land, it appeared that plaintiff contracted to sell the land to D, and took notes for the purchase money, retaining title, and that D contracted to sell the land to C, who agreed to pay to plaintiff the balance- due him; and that plaintiff had agreed with D to make conveyance to whomsoever he might direct, and subsequently conveyed to C’s wife by a deed in which D and wife joined, and which recited that the several contracts had been complied with. On a former trial of the action C had testified that the note sued on was given in payment of the balance due to plaintiff for the land and settled the matter with him. Evidence was also admitted that a mortgage, which was on the land at the time of the various contracts concerning the land, had been marked satisfied on the records; Held, that neither the deed so executed by plaintiff and D to 0, nor the cancellation of the mortgage, nor the said several contracts between the parties should -have been received as evidence of payment of the note sued on, although the latter were relevant to explain the reason for the execution of such note.</p>

Civil actioN, tried before Bryan, J., at August, 1896, Term of the Superior Court of BuNoombe county, on a referee’s report and exceptions thereto. There was judgment for the plaintiffs and defendants appealed.

Civil actioN, tried at August Term, 1895, of BüNoombe Superior Court, before Robinson, J., and a jury. The nature of the action and the facts pertaining thereto appear in the report of former appeal in same case, contained in 116 N. 0. Reports, 825, and in the opinion of Furches, J. There was a verdict for the plaintiff and defendant appealed.

Civil action, beard before Bryan, , at Fall. Term, 1896, of Buncombe Superior Court, on a motion to set aside a judgment which had been rendered on the award of arbitrators. The motion was allowed, and defendant, Mrs. M. E. Hilliard, appealed.

Civil actioN, tried before Robinson, J., and a j ury, at Rail Term, 1896, of Halifax Superior Court. The cause of action was a claim for commissions for sale of real estate for defendant. The plaintiff was non-suited and appealed.

<p>Action for Damages — Killing Slock — Negligence—Contributory Negligence — Proximate Cause — Presumption—Rebuttal—De- ■ murrer to Evidence.</p> <p>1. Where, in the trial of an action against a railroad company for killing stock, it appeared that plaintiff’s servant in charge of a horse failed to look when approaching a railroad crossing with an unobstructed view of the track and the horse was struck by the rear car of a passing train; Held, that the negligent conduct of plaintiff’s driver was the proximate cause of the accident, and the trial judge properly sustained a demurrer to the evidence, even though the effect of the demurrer was an admission that the engineer failed to sound the whistle or give other warning of the approach of the train.</p> <p>2. The statute (The Code, Section 2326,) raising the presumption that the killing of stock by a railroad train is negligence of the defendant, is construed to apply only when the factsare uncertain or not known.</p>

AotioN for damages against the defendant railroad company for killing stock, tried oti appeal before Robinson, Plaintiff then introduced a witness, who testified as follows: “It was thirty steps from the bridge to where she was struck, and she was dragged thirty steps. I heard the train blowing.

Civiu actioN, begun January 10, 1894, tried before Robinson, Jand a jury, at Fall Term, 1896, of Beetie Superior Court. Tbe case bad been formerly beard at Spring Term, 1896, b¿ Grabam, Judge, and a jury, upon these issues: 1. Has tbe land of tbe plaintiff been damaged by tbe negligent and unskillful construction of tbe defendant’s roadbed and ditches? Answer: Yes. 2. What amount of damages has tbe plaintiff suffered, if any? Answer: $500.

Civil action, by plaintiffs, for damages to their land, caused by the construction of defendant’s road, tried before Graham, ,/., and a jury, at Septemer Term, 1895, of Pitt Superior Court. B. D. Beach, for the plaintiffs, testified that he and his wife had been in the possession of the lands on Briery Swamp, described in the complaint, clearing, cultivating and residing upon them continuously since 1871.

<p>Action for Damages — Principal and Agent — Master and Servant — Authoritg of Section Master — Evidence.</p> <p>1. Where an'agency is limited it is the duty of the person dealing with the agent to ascertain its value and extent of his authority and to deal with him accordingly.</p> <p>2. A section master of a railroad has such general authority only as is incidental to the duty assigned to him, and no power whatever as to the transportation of passengers, and notice of this limited authority will be implied from the natural and apparent divisions of the business of a railroad company among its various departments.</p> <p>3. In order to render the principal or master liable for the act of his agent or servant, the act (in the absence of express authority to do it) must be one that pertains to the business and one that is fairly within the scope of the employment.</p> <p>4. A section master of a railroad company, by gratuitously taking a person walking along the track upon a hand-car in use by him in the performance of his duties, cannot thereby render his principal liable as a common carrier to such person as a passenger.</p> <p>5. When a person riding on a hand-car with a section master is injured by collision with a train, a conversation after the accident between the section master and the conductor of the colliding train is inadmissible as part of res gestae.</p> <p>6. In the trial of an action for damages for injuries to a person who was hurt while riding on a hand-car in use by the section master of a railroad, it was competent for the defendant to show the limited authority of the section master under the printed rules of the company.</p>

Civil aotioN, for damages, tried befóre Coble, J., aad a jury, at March. Term, 1896, Durham: Superior Court. ■ There was a verdict for the defendant, and plaintiff appealed, assigning as error the instruction referred to in the opinion of the court.

<p>Action for Damages — Trial—Witness—Gorroborative 'lesti-mony — Opinion Evidence — Experts—Hypothetical Questions— Instructions — Exceptions.</p> <p>1. It- is competent to corroborate a witness by showing that he has previously made the same statement as to the transaction as that given by him in his testimony.</p> <p>2. In such case it is not necessary to ask the witness to whom such former statement, offered in corroboration, was made.</p> <p>3. A “broadside ” exception “ to the charge as given ” is valueless.</p> <p>4. Where, on the trial of an action, there was no evidence to show any impairment of plaintiff’s hearing, it was error to admit a hypothetical question to a physician as to the cause of ah injury complained of in the action, which question was based upon xrlaintiff’s “sight and hearing being impaired.”</p>

Civil action, beard on complaint and demurrer, before Btarluoh, </., at April Term, 1896, of New Hanover Superior Ccurt. His Honor sustained the demurrer and plaintiff appealed.

Ciytl actioN for damage for the alleged negligent b illing of a plaintiff’s intestate by defendant, tried beforellohe, J., and a jury, at December Term, 1896, of FoRsyth Superior Court. There was a verdict for the defendant, and from the judgment thereon plaintiff appealed,

Civil actioN for damages for the alleged negligent killing of the plaintiff’s intestate and son, tried before HoJae, J., and a jury, at January, 1897, Special Term of Eoesyth Superior Court. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Civil aotioN for damages, tried before Oreen, J., and a jury, at February, 1897, Term of Forsytii Superior Court. The facts appear in the opinion. From a judgment for the plaintiff the defendant appealed.

Civil action, for damages for injuries fco plaintiff’s intestate resulting in his death, tried before Coble, J., and a jury, at Fall Term, 1898, of New ITaNoveR Superior Court.

Civil aotioN, heard on complaint and demurrer, before Norwood, J., at October,Term, 1896, of MecicleNbueg Superior Court.

Civil aotioN, tried for damages for injuries resulting from the alleged negligence of defendant railroad company, tried before Starbuek, , and a jury, at March Term, 1896, of MecKleNbuRg Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff, and from the judgment thereon defendant appealed.

Civil aotioN, for damages, tried before Norwood J., and a jury, at March Term, 1897, of MeckxeNbueg Superior Court. At the conclusion of the testimony his Honor expressed the opinion that in no aspect of the testimony could the plaintiff recover, and in deference thereto plaintiff submitted to a non-suit and appealed.

Civil aotioN, tried before Bryan, J., and a jury, at December Term, 1896, of BuNcoMbe Superior Court, for damages sustained by the plaintiff as a passenger on the street railway, which, it was alleged, negligently permitted its car to run down hill at a rapid speed and without proper appliances, whereby the car was derailed and the plaintiff injured. The usual issues as to negligence, contributory negligence and amount of damages were submitted.

IN a CRIMINAL aotion, tried- before a Justice of the Peace, the defendant, being taxed with the costs as prosecutor, appealed to the Superior Court, and TimberlaJce, J., at Pall Term, 1896, of Beaufort Superior Court, ret ersecl the judgment of the Justice and the State appealed.

INdiotMeut for murder, tried before Meares, J., and a jury, at December, 1896, Term of the Circuit Criminal Court for Halifax cou nty. Upon the trial a special venire of ninety was drawn from the box under the supervision of the court, as required by Section 14, Ch., 156, Acts of 1895, from which venire and the regular jurors a jury was selected. Eight of the special venire were called and passed by the State to the prisoner.

<p>INDICTMENT for perjury, tried before Graham, J., and a jury, at Fall Term, 1896, of FranKlin Superior Court. The defendant was convicted and appealed.</p>

<p>IndiotmeNt for murcier, tried at Fall Term, 1896, of FranKlin Superior Court, before Graham, J., and a jury. The defendant was convicted and appealed.</p>

INDICTMENT for carrying a concealed weapon, tried before Graham, J., and a jury, at November Term, 1896, of Wilson Superior Court. The defendant was convicted and appealed.

INDICTMENT under Section 1089 of The Code, for disposing of mortgaged property, tried oefore Mclver, J., and a jury, at March Term, 1896, of WaKE Superior Court. The execution of the mortgage was admitted.

INDICTMENT for secret assault with a deadly weapon, tried before Mclver, J., and a jury, at November term, 1896, of G-RAnville Superior Court. The defendant admitted the assault, but denied that it was made, in a secret manner. The prosecuting witness, Frank O. Landis, testified that he was in conversation with one Albert Harris when he was struck, and did not see the defendant or know who hit him. He had no warning, and was knocked down insensible.

This was a criminal action, tried before Meares, Jat the January Term, 1897, of the Circuit Criminal Court in New ITaNoveR county. The defendant was indicted under The Code for carrying a concealed weapon, he not being an officer of the law, in the military or marine service of the United States or of the State of North Carolina.

INDICTMENT for obtaining money under false representations, tried before Ooble, Jand a jury, at Spring Term, 1897, of Anson Superior Court. The defendant was convicted and appealed.

INDICTMENT for carrying concealed weapons, tried before Coble, J., and a jury, at Spring Term, 1897, of Anson Superior Court. The defendant was convicted and appealed.

<p>INDICTMENT for bigamy, tried before Coble, J., and a jury, at January Term, 1897, of ÁNsoN Superior Court.</p>

INDICTMENT for murder, tried before Worwood, J!, and a jury, at Fall Term, 1896, of YaNoey Superior Court. The defendant was convicted of manslaughter and appealed.

IndiotMENt for assault with a deadly weapon, tried before Norwood, J], and a jury, at Fall Term, 1896, of Yancey Superior Court. Defendant pleaded former trial and conviction before a justice of the peace.

<p>Indictment for Breaking Down a Gate Across a Cartway — Indictment, Sufficiency of — Defence.</p> <p>1. Where a bill of indictment, under Section 2057 of The Code, for breakdown a gate across a cartway, described the cartway as running through the land of IT, beginning near the house of C, in B township and running in an eastern direction through the lands of said H for the distance of about “one-half mile,” and alleged that the cartway was “laid off by the authority of a jury regularly constituted by the Board of Supervisors in and for said B township Held (1), that the legality of the establishment of said cartway was sufficiently averred in the bill; (2) that the bill sufficiently locates the cartway, although it does not state its eastern terminus or whether it runs to a public road.</p> <p>2. The failure to establish a cartway according to law is a matter of de- . fence to be pleaded in the trial of an indictment for breaking down ' a gate across it.</p>

<p>INdiotmbNT for larceny, tried before Norwood, J., at Spring Term, 1897, of Union Superior Court. The defendant was convicted and appealed.</p>

INDICTMENT for secret assault with intent to kill, tried before Robinson, J., anda jury, at Fall Term, 1896, of Geaham Superior Court. The defendant was convicted and appealed.

<p>INDICTMENT for cruelty to animals, tried before Norwood, and a jury, at Fall Term, 1896, of Stanley Superior Court.</p> <p>defendant asked the following special instructions:</p> <p>“(1) That chickens are not embraced in the list of animals authorized to be impounded under our Statute in stock-law territory; and, therefore, if the jury believed that the defendant had notified the prosecutor to keep his chickens from trespassing on defendant’s crop, that defendant had made reasonable efforts to prevent the injury to his crop without killing the chickens or otherwise injuring them, but that prosecutor refused or failed to keep up his chickens, and defendant killed them simply to prevent injury to his crop, then the killing would not be wilful, within the meaning of the Statute under which defendant is indicted, and defendant would not be guilty. (Not given.)</p> <p>‘ !(2) That chickens are not such animals as were allowed to be impounded at common law, and, therefore, if the jury believe that defendant killed them without needless or wilful tof ture, but simply to prevent them from destroying bis-crop, then defendant would not be guilty. (Not given.)</p> <p>“(3) That, in order to convict the defendant, the jury must find that he wilfully killed the chickens, and that the term ‘wilfully’ implies that the act was done knowingly and of stubborn purpose. (G-iven.)</p> <p>“(4) That, in order to convict the defendant, the jury must find that the killing of the chickens was the development of a preconceived purpose, and not an impulse of anger excited by unexpectedly seeing a repetition of the annoying trespass; and, therefore, if the jury believe that defendant killed the chickens without wilful torture, and without any purpose to do the prosecutor a wilful injury, but simply to present injury to his crop, then defendant M ould not be guilty. (Not given.)</p> <p>“(5) That the Statute under which defendant is indicted relates only to offenses where the injury is directed against the animal killed, or wounded, where there is an intent on the part of the offender to wilfully injure, torture, wound or kill the animal, without reference to the owner of the animal; and, therefore, if the jury should believe that defendant killed the chickens without any intent to wilfully injure, wound or kill the chicKens, then he would not be guilty. (Not given.)</p> <p>“(6) That in no view of the evidence can defendant, J. F. Neal, be found guilty. (Given.)</p> <p>“(7) That in no view of the evidence can defendant, Oscar Neal, be found guilty. (Not given.)”</p> <p>The judge refused to give the instructions, except the third and sixth, and defendant excepted. Defendant offered to show that the chickens were eating his peas, and that he killed them to prevent them from destroying the same. The solicitor objected to this evidence, and the objection was sustained, and defendant excepted. The court charged the jury, among other things, that, in order to acquit the defendant, they must believe from the evidence,-beyond a reasonable doubt, that he was justified in Trilling the chickens, and that he would not be justified if he killed them to prevent the destruction of his crop. Verdict of guilty. Motion in arrest of judgment, cn the ground that the indictment failed to allege that the killing of the chickens was by torture, cruelty, wounding or mutilation. Motion overruled, and defendant excepted. Motion for new trial for errors assigned as follows: “(1) That the court erred in refusing to give the first, second, fourth, fifth and seventh instructions asked. (2) That the court erred in charging ' the jury that the defendant must be justified in killing the chickens, and that he would not be justified if he kilied them to prevent the destruction of his crop.” Oscar Neal alone was found guilty. He was adjudged to pay a fine of $1.00 and costs, and appealed.</p>