Volume 121 — North Carolina Reports

Civil aotiok tried at July, 1897, Special Term of Pas-quotakk Superior Court before Greene, J., and a jury, upon an appeal from the Court of a -Justice of the Peace. There was a verdict for the defendant and from the judgment thereon the plaintiff appealed. .

Civil actioN tried before Greene, J.: at July, 1897, Special Term of Pasquotank Superior Court, on appeal from a judgment of a Justice of the Peace.

Civil action heard on complaint and demurrer before Bryan, J., at Spring Term, 1897, of Pasquotank Superior Court. The action was brought by the plaintiff, Lizzie Brown, wife of J. W. Brown, in her own name against the defendant J. R. Brown, 'the father of her husband. The complaint alleged that the defendant had alienated the affections of her husband and induced him to abandon her and to refuse to contribute anything for her support.

<p>Corporation — Subscription to Stock — Liability of Delinquent Subscriber — “By”, Meaning of as a Designation of Time.</p> <p>1. When used to designate a terminal point of time the word “by” means “not later than”; hence, a condition affixed to a subscription to the capital stock of a corporation that a certain amount should be subscribed for “by July 1st” was fulfilled by the total subscriptions reaching such amount on the night of July 1st.</p> <p>■3. Under Section 664 of The Code, a corporation is empowered to provide by its by-laws for the sale of shares of a subscriber who makes default in paying the assessments.</p> <p>:3. Where the by-laws of a corporation provided that, if any stock holder should fail to pay his installments when called by the directors for two months, the stock should be declared forfeited and sold for account of the delinquent, publicly after thirty days notice, and that the proceeds of such sale should be applied to the payment of the amount due on the subscription and the balance, if any, should be paid to the delinquent but that such forfeiture and sale should not relieve the delinquent from his original subscription; Held, that such by-law was a reasonable one and the subscriber whose stock was duly declared forfeited and sold for less than its face value can be required to pay the difference between his subscription and the amount for wheih it was sold.</p>

Civil ActioN tried before Bryan, Jand a Jury at Spring Term, 1897, of Pasquotank Superior Court. There was judgment for the defendants and plaintiff appealed. The facts appear in the opinion of the Court.

Civil action tried at July, 1897 special Term, of Pasquo-tank Superior Court, before Greene, J., and a jury. There was a verdict for the plaintiff and from the judgment thereon defendant appealed.

Proceedings to settle a disputed boundary of land tried before Bryan, J., and a jury, at Spring Term, 1897, of Dare Superior Court, on appeal from the judgment of the Clerk of the Superior Court. There was a verdict for the defendant and from the judgment thereon plaintiff appealed.

Civil action for mandamus tried at Spring Term, 1897, of Currituck Superior Court before Bryan. Jon complaint and demurrer. The defendant demurred ore terms to the complaint, and moved to dismiss the action upon the ground that the complaint did not contain facts sufficient to constitute a cause of action, in that it did not contain the allegations required in section 757 of The Code of North Carolina. The Court sustained the demurrer, and said the action should be dismissed.

This was a rule on the Commissioners of Carteret County to show cause why they should not pay the fees claimed by the Attorney General and Clerk of the Supreme Court in State v. Turner and Noe and Hassell. Indictments against-those defendants were found in Carteret County, but tried in Jones County, where they were convicted, and on appeal the judgments were affirmed. 119 N. C., 841.

Civil action for the recovery of land, tried before Bryan, J., and a jury, at Spring Term, 1897, of Camden Superior Court. There was judgment for the plaintiffs on the verdict set out in the opinion of the Court,' and defendants appealed.

Civil action by the plaintiffs, as trustees of C. F. Futrell, against the defendant as Sheriff, and others, for damages for the wrongful seizure of a stock of goods, tried before Graham, J. at Spring Term, 1896, of NORTHAMPTON Superior Court. From a judgment against the defendants for $1,109 damages, they appealed.

Civil actiou on. the official bond of defendant as constable of the town of Jacksox for damages for the release of a defendant in his custody under an execution against the prisoner, tried before Bryan, J., at October Term, 1896, of Noethamptox Superior Court, on a case agreed, the essential facts of which appear in the opinion of the Court. There was judgment for the defendant and plaintiff appealed.

Civil actioN for the recovery of land tried on tire usual issues in ejectment before Bryan, Jand a Jury at August Term, 1897, of NORTHAMPTON Superior Court.

<p>Petition for habeas corpus heard before Bryan, J., at Chambers in Newbern, on June 8th, 1897. The writ was ■denied and defendant appealed.</p>

ActtoN for the foreclosure of a mortgage tried before Timber lake, J., and a jury, at Spring Term, 1897, of Craven Superior Court. There was a verdict for the plaintiff and from the judgment thereon the defendants appealed, assigning as error the refusal of ail instruction specially prayed for, which is set out in the opinion of the Court.

Civil action tried before Timberlake, J., at February 1897 Term of Craven Superior Court, on an agreed statement of facts, which were in substance as follows: On the 11th of September, 1896, Powell,… Held: that the judgments in favor of Powell Gwatheny & Co., should be first paid in full out of the proceeds of the execution. Prom such judgment Jno. R. Cary Co., and Old Dominion Paper Co., appealed.

Civil actiok tried before Robinson, J., and a jury at February Term, 1897, of Bertie Superior Court. There was a verdict for the plaintiff and from the judgment thereon the defendant appealed.

Civil action tried before Robinson,-J., and a jury, at the Fall Term, 1896, of Bertie Superior Court. After the evidence was in, His Honor intimated that plaintiff could not recover upon his evidence and he, thereupon, submitted to a non-suit and appealed.

Civil ACTION, tried before Timberlake, J., and a jury at May Term, 1897, of CraveN Superior Court. Plaintiff sought to recover all the premiums, which he had paid to defendant on a policy of insurance, upon the ground that defendant had declined to accept the last premium and declared the policy forfeited.

Civil ACTION for damages, tried before Timberlake, J., and a jury, at April Term, 1897, of FeakkliN Superior Court. From au order of Plis Honor setting aside the verdict on the issue of damages and awarding a new trial, the defendant appealed.

Civil actioN for the recovery of laud, tried before Tim-berlalr, J., and a jury, at April Term, 1897, of FiiaNKLIN Superior Court. Upon an intimation by ITis Honor that the plaintiffs could not, on their own testimony recover, they submitted to a non-suit and appealed.

Civil action, heard before Timber lake, J., (a jury trial being waived) at April Term, 1897, of Franklin Superior Court. The facts appear in the opinion of the Court. From a judgment for B. W. Ballard Company intervenor, the plaintiff appealed.

Civil action heard before Timber lake,' J., at Spring Term, 1897, of Craven Superior Court, on exceptions to the report, of a Referee. The plaintiffs appealed from the judgment overruling certain exceptions which are referred to in the opinion.

<p>Practice — Modification by one Judge of Judgment rendered by Another — Executors and Collectors — Counsel Fees — Jurisdiction.</p> <p>1. One Judge has no power to reverse or set aside, in whole or in part, a final order or judgment rendered by another Judge except on notice and a showing that there was on the part of the complainant mistake, inadvertence, surpiise or excusable neglect by which he was injured.</p> <p>2. A collector of the estate of a decedent who resists the claim of the executor of the estate to a' fund in his hands which, after litigation, is awarded to the executor, is not entitled to an allowance for counsel fees paid by him in such litigation.</p> <p>3. The allowance of expenditures of a collector of an estate is, under Section 1524 of The Code, within the original jurisdiction of the Clerk of the Superior Court and the Court at Term has no power to make an allowance to the collector for counsel fees paid by him in a litigation in which he attempted to defeat the rightful claim of the executor to a fund in his hands.</p>

Civil actioN on a note executed by S. J. Nichols and Selina Nichols, tried before Boykin, J., and a jury at October Term, 1896, of Waicje Superior Court on appeal from a judgment of a Justice of the Peace.

Civil action brought upon the bond of J. S. Draughan, agent of the plaintiff, The Singer Manufacturing Company, against said Draughan and his sureties J. J. Wade and H. A. Hodges, tried before Adam,s, J., at February, 1897, Term of Wake Superior Court, upon the pleadings and a referee’s report. A jury trial was demanded but was waived and His Hon- or found the facts by consent. Judgment was rendered for the plaintiff and the defendant, J. J. Wade, appealed.

<p>MotioN by plaintiff in a civil action pending in Waice Superior Court to amend the complaint by inserting a second cause of action, heard before Robinson, J., at September Term, 1897, of said Court. The motion was refused and plaintiff appealed.</p>

<p>MotioN of appellee to dismiss an appeal in an action tried before Adams, J., at April Term, 1897, of Wake Superior Court.</p>

This was a motion to dissolve a restraining order in an action pending in WayNE Superior Court, heard before Robinson, J., at Chambers at Goldsboro, on 27th July, 1897. The motion was denied and the defendants appealed.

<p>Trial — Evidence.—Irrelevancy of Evidence — Collateral Facts.</p> <p>1. To make evidence competent it must tend to prove the matter in dispute and not relate to collateral facts merely.</p> <p>2. “Where, in the trial of an action for the price of goods alleged to have been sold to the defendant, the contention was whether the sale was made to the defendant or his tenants and the defendant denied the purchase and introduced his tenants who testified that they bought the goods from plaintiff on their own account, at a certain price, it was error to permit plaintiff to prove that the goods cost him what defendant’s witnesses claimed to have bought them for in order to show the unreasonableness of their testimony, since such matter was collateral to the issue and not a part of the res gestae. (Clark, J., dissents, arguendo.)</p>

Special proceeding commenced before the Clerk of the Superior Court of Wayne County, and tried before Robinson, J., and a jury at Fall Term of said Court, upon an issue of fact raised by the pleadings. The petition alleged that the estate was indebted in about the sum of $200. The second and third paragraphs of the answer were as follows: “2.

Civil action to set aside trustee’s deed to real estate, heard before Adams, J., at April Term, 1897, of Wayne Superior Court. The Court gave judgment for the defendants, and the plaintiffs appeal ed. The facts appear in the opinion.

<p>Practice — Appeal—Parties.</p> <p>Where, in an action to recover land, the defendants pleaded as an estoppel a judgment rendered in a proceeding for the settlement of the estate of a deceased person under whom all parties claimed and the record shows that some of the heirs and distributees interested in such proceeding had died during the pendency thereof, and that their heirs had not been made parties to the case at bar; Held, that the case will be remande 1 by this Court, in order that all interested persons may be made parnés and that the rights and equities of all maybe' disposed of in one final judgment</p>

Civil ActioN, tried before Timberlake, J., and a jury at June (Special) Term, 1897, of Durham Superior Court. The facts appear in the opinion and in the report of former appeal (118 N. C., 383). From a judgment for the plaintiff the defendant appealed.

MotioN to correct a judgment beard before Allen, J., at January Term, 1897, of Durham Superior Court. The motion was allowed and plaintiff and L. L. Morehead, Executrix, (defendant) appealed.

Civil action tried before Timberlake, J., at June (Special) Term, 1897, of Durham Superior Court. The facts appear in the opinion. From a judgment for the plaintiff the defendant appealed.

<p>Practice — -Burden of Proof — Right to Open and Conclude Argument — Evidence—-Transaction with Deceased Person — Order to Produce Note.</p> <p>1. A defendant in an action upon a note, who admits the execution of the instrument but alleges payment, has a right to assume the burden on the trial.</p> <p>2. In the trial of an action on a note against the administrator of the deceased maker, the cashier of a plaintiff bank, the payee of the note, isa party in interest and disqualified undei Gocle section 590, from testifying as to conversations with intestate of defendant</p> <p>S. It is a matter of discretion of the trial Judge to allow a defendant, who has assumed the burden of pi’oof, to open and conclude the argument.</p> <p>4. Notice to an administrator, defendant in an action, is, in law, notice to his attorney; and where, in the trial of an action, the administrator in reply to a notice to produce a note alleged to have been paid, stated that his intestate had told him. that he had given it to his attorney, (who was also the administrator’s attorney); Held, that the statement of the administrator, in return to the notice, reasonably meant that the intestate had given the note to his attorney as bearing on the matter of the suit, that the latter kept it in his possession and had it at the trial, and it was error to refuse plaintiff’s request for an order on the attorney to produce the note.</p>

. Civil actiok for divorce, tried before Allen, J., and a jury at March Term, 1897, of Dukham Superior Court. The complaint was as follows : “ The plaintiff alleges : 1. That on the 11th day of August, 1892, he and the defendant, Mary J. Ladd, wore duly married. 2.

Civil actioN tried before Allen, J., and a jury at Spring Term, 1897, of Person Superior Court, on defendant’s appeal from tlie judgment of a.Justice of the Peace. There ■was a verdict for the defendant and from the judgment, thereon plaintiff appealed.

In an action for the foreclosure of a mortgage pending in New HaNOVER Superior Court, the defendants filed the following petition in the 'cause: “The defendants in the above entitled action show to the Court: First. — -That at the January term, 1897, of this Court upon the complaint herein filed, a decree by consent was rendered against the defendants, adjudging the defendants Samuel J. Davis, A. H. Zoeller and V. E. Zoeller to be indebted to the plaintiff Receivers 'in the…

Civir, action to enforce specific performance of a contract for the sale of land by defendant to plaintiff, tried before Coble, J., and a jury at September Term, 1896, of Sampson Superior Court. There was judgment for the plaintiff and-defendant appealed.

Motiox to strike from the files of the Court below defendant’s statement of case on appeal heard before Allen, J., at Fall Term, 1897, of Duplin Superior Court. The cause had been tried before Melver, J, and a jury at Spring Term of said Court and defendant had appealed from the judgment then rendered.

<p>Civil actioN, tried before Allen, J., at Fall Term, 1897, of Duplix Superior Court. There was 'judgment for the plaintiffs and defendants appealed.</p>

Civil action tried before Timberlake, 1. Is the plaintiff the owner and entitled to the possession of the property described in complaint? 2. AVhat damage, if any, is the defendant entitled to recover of the plaintiff? 3. In what sum, if any, is the defendant indebted to the plaintiff ? Plaintiff offered in evidence the following instrument in writing signed by defendant and wife : “This indenture, made and entered into this the 19th day of July, 1895, by and between R. 0.

Civil action tried before Allen, J., and a jury at April 1897, Term of Granville Superior Court. At the close of the plaintiff’s evidence the defendant moved to dismiss the complaint or for judgment as in case of non-suit which motion was granted and plaintiff appealed.

Civil, ACTION, tried before Allen, J., and a jury, at January Term, 1897, of Granville Superior Court. The facts appear in the opinion of the Court. Under the instruction of his Honor, the jury found that defendant was not entitled to recover on its alleged counter-claim, and from the judgment thereon the defendant appealed.

Civil actioN, tried before Allen, J., and a jury at April Term, 1897, of Person7 Superior Court. There was judgment for the plaintiff and defendant appealed. The facts appear in the opinion.

MotioN in the cause heard before Allen, J., at Chambers in Kinston, oil appeal from a judgment of the Clerk of the Superior Court of Greene County. His Honor granted the motion and plaintiff', Josephine Williams, appealed.

This was a civil action for the recovery of land, in which the plaintiff filed her complaint duly verified at November Term, 1896, of Greeke Superior Court, within the first three days thereof, at which term the defendant was allowed thirty days in which to file his answer and undertaking, or comply with the Statute. At February Term, 1897, the defendant having failed to answer, the plaintiff moved for judgment for want of an answer.

Controversy submitted without action and heard before Mclver, J., at April Term, 1897, of New HaNOVER Superior Com’t. The facts appear in the opinion. His Honor held that the plaintiffs could convey a good title, to the land for the purchase of which the note sued on was given and gave judgment accordingly from which defendant appealed.

Civil action tried before Robinson, J., and a jury at May Term, 1897, of Vance Superior Court.

Civil actiok tried before Allen, J., and a jury at September Term, 1897, of New- Hakovei-í, Superior Court. There was a verdict for the defendant and, from a judgment dismissing the action, the plaintiff appealed.

<p>Civil action tried before Mclver, J., and a jury at March Term, 1897, of Jokes Superior Court. The facts appear in the opinion. There was a verdict for the defendant and from thé judgment thereon the plaintiff appealed.</p>

Civil action, (being a consolidation of three separate actions), involving the title to the offices of Mayor and Board of Aldermen of the City of Wilmington, heard before McLver, J., on… Held: but that the second notice ■corrects the first in this particular. The notices were not signed by any one. The registration books were opened on the 13th day of March, 1897, twelve days before the election, conformably to the requirements of the Act of March, 1897- — the amended Act.

Civil actioN tried before Mclver, J., at Spring Term, 1897, of Sampson Superior Court. The plaintiffs appealed from a judgment rendered for the defendants who moved in this Court to dismiss tlie appeal for appellants’ failure to print an “exhibit” which was made a part of the case on appeal.

<p>Civil actiox for the recovery of damages for breach of contract tried before Mel ver, J., and a jury at September Term, 1897, of RICHMOND Superior (¡ourt. There was verdict and judgment for the plaintiff and defendant appealed.</p>

CiyiL ACTION to sell land for assets tried before Coble, J, At Fall Term, 1897, of Robeson Superior Court. From a • judgment for the plaintiff the defendant appealed.

This was a motion by plaintiff under Section 440 of Hie Code for leave to issue execution, heard before Coble, J., at Chambers, on appeal from a judgment of the Clerk of the Superior Court of Richmond County. The action was brought to Fall (September) Term, 1886, of the Superior Court of Richmond County, N. C., the Summons in which was served September 3rd, 1886.

Civil action tried before Mclver, J., and a jury at Fall Term, 1897, of Richmond Superior Court. There was a verdict with judgment thereon for the plaintiff and defendant appealed.

The plaintiff obtained a judgment before a Justice of the Peace against the defendant,' as his tenant, for rents and .advances. The defendant appealed to the Superior Court but, having given no bond to stay execution, the Justice of the Peace issued execution and an order for the sale of the crops and other personal property subject to plaintiff’s lien as landlord.

<p>Quo Warranto — Practice—Misjoinder of Causes of Action— Misjoinder of Parties — Community of Interests — Division of Action.</p> <p>1. A complaint setting- up separate causes of action against several parties, among wliom there is no community of interests, is demurrable on the ground of misjoinder of causes of action and of parties.</p> <p>2. The complaint in an action in the nature of quo 'warranto against several members of a Board of County Commissioners, alleging that the defendants held their offices by different tenures, from different sources and had forfeited them by different acts, is demurrable on the ground of a misjoinder of distinct causes of action, the action being directed not at the power or authority of the Board to act as such butat the separate right of each individual defendant to remain a member of tire Board.</p> <p>3. H here there is not only a misjoinder of distinct causes of action but also a misjoinder of parties having no community of interests, the action cannot be divided under Section 272 of The Code which permits division only when the causes alone are distinct.</p>

<p>Action for Damages — Trespass—Statute Changing Remedy— Limitation, Statute of — Reasonable Time in tohich to Bring Action.</p> <p>1. The Legislature may change the remedy and the Statute of Limitations" which applies to the remedy, by extending or shortening the time for beginning an action; provided, in the latter case, a reasonable time is given for the commencement of the action before the Statute-works a bar. .</p> <p>2. The ‘ 'reasonable time” for beginning an action on a cause, the statutory limitation of which has been shortened by the Legislature, is held to be- ‘ ‘the balance of the time unexpired according to the law as it stood when the amending act is passed, provided it shall never exceed the time allowed by the new statute.”</p>

Civic action for the recovery of' taxes paid by plaintiff under a mistake of fact, commenced in a Court of a Justice of the Peace and tried on appeal before Coble, J., and a jury, at May Term, 1897, of Cumherland Superior Court. There was a verdict for' the defendant and from the judgment thereon the plaintiff appealed.

<p>Civil aotioN for the enforcement of a contract for the purchase of land tried before Coble, J., and a jury at April Term, 3897, of CUMBERLAND Superior Court. There was a verdict for the defendant and from the judgment thereon plainfiff appealed.</p>

<p>Action to Foreclose, Mortgage — Mortgage—Privy Examination of Married Woman — Presence of Husband — Duty of Officer talcing Primj Examination of Married Woman — Equitable Lien on Married Woman’s Land for Husband’s Debts.</p> <p>1. In tlie trial of an issue as to whether a married woman had been privily-examined separate and apart from her husband, touching her free and voluntary consent to the execution of a mortgage signed by her, her own testimony that she did not declare such consent to the examining officer but objected to signing the instrument and signed it only after her husband told her to do so, and testimony of the examining officer that he did not explain the paper or the nature and purpose of the privy examination or question her as to her fiee consent, and other testimony showing that the husband was in sight and hearing of his wife and the officer during the pretended examination, constituted evidence proper to be submitted to the jury upon the issue.</p> <p>2. Where, in the trial of an issue whether a married woman voluntarily executed a mortgage and was privily examined separate and apart from her husband touching her voluntary execution thereof, it appeared that the examining officer, purporting to have taken her acknowledgment, represented her as stating that she signed the same freely and voluntarily and the evidence was all directed to what she said at the time of the examination, it was not error to instruct the jury that if she, upon her examination, did not state to the officer that she signed the mortgage freely and voluntarily, the jury should answer the issue in the negative.</p> <p>3. It is the duty of an officer, when taking- the privy examination of a married woman as to her voluntary execution of an instrument, to explain the same to her and to see that the provisions of the Statute are strictly complied with; otherwise such examination is invalid.</p> <p>4. A married -woman whose husband was threatened with the sale of his own land under mortgage, consented to sell and convey her own land to the mortgagee in settlement of the mortgage upon her husband's land of which she was to become the owner. The deed by which she conveyed her land described it as her own land, and the recited consideration was applied without her knowledge to the credit of a debt of her husband other than that secured by the mortgage. Subsequently, the mortgagee sold her husband’s land and procured it to be bid in for the wife and conveyed to her and attempted to take a. reconveyance by way of mortgage for the original debt for which it was mortgaged and another debt owed by the husband. The mortgage was invalid by reason of the want of a privy examination of the wife as to her voluntary execution of the same. Held, that the creditor lias no equity to have his debt declared a lien upon the land, since the wife had bought it with her own separate estate and had not authorized its value to be applied otherwise than to the satisfaction of the mortgage on the land which she so bought</p>

Civil ACTION tried before Robinson, J., and a jury - at January Term, 1897, of Franklin Superior Court. The action, commenced on the 7th of January, 1896, was to subject to the payment of plaintiff’s judgment rendered and docketed in 1872, land which had been allotted to the judgment debtor as a homestead but -which had been conveyed by the judgment debtor thereafter and by mesne conveyances had been acquired by defendants.

Civil action for the recovery of land, tried before Coble, J., and a jury at May Term, 1897, of Cumberland Superior Court. The usual issues in ejectment were submitted on which there was a verdict for the defendant and from the-judgment thereon the plaintiffs appealed. ' ■

Civil action tried before EtcirbueJc, J., and a jury at Spring Term, 1897, of Davidson Superior Court. There was a verdict for the plaintiff and defendant appealed from the judgment thereon.

Civil action tried at Spring Term, 1897, of Rowan Superior Court before Starbuch, J., and a jury. The facts appear in the opinion. The issues submitted to the jury and the responses thereto were as follows: “1. Was the deed described in the complaint delivered, with the consent of Mrs. Fries, by the Central Land Company, or any person for them, to be held by bank in escrow until the note was paid? Answer. ‘Yes.’ “2.

<p>Civil actioN, tried before Coble, J., and a jury, at Fall Term, 1897, of _ Davidson Superior Court. There was a verdict for the plaintiff on the issues referred to in the opinion of this Court and defendant appealed from the judgment thereon.</p>

Civil action to recover land, tried before Greene, J, and a jury, at Spring Term, 1897, of Wilkes Superior Court. There was a verdict for the plaintiff and from the judgment thereon defendants appealed.

Civil ACTION, tried before Norwood, J., and a jury at Spring Term, 1896, of AlleghaNY Superior Court. After the evidence was closed his Honor expressed the opinion that the plaintiff could not recover, whereupon she submitted to a non suit and appealed.

Special PROCEEDING begun before the Clerk of the Superior Court of Yadkin County by petition for the sale of land of Elizabeth Lynch, deceased, for assets to pay a judgment which plaintiffs had recovered in 1888 against the administrator of intestate, heard before Starbuch, X, at Spring Term, 1897, of Yadkin Superior Court.

This was an appeal from ail order of Starbuek, ./., at Pall Term, 1897, of Davie County, sustaining an exception to the allotment of homestead Commissioners and ordering a new allotment. The facts appear in the. opinion.

Civile ACTION to foreclose a mortgage tried at February Term, 1897, of Tbedell Superior Court before Starbuclc, J., and jury. The note and mortgage were executed by defendants G. F. and J. W. Mills to T. A. Patterson on the 23rd day of January, 1884, and recorded in Iredell county on the 13th of March, 1884. Patterson died in the year 1888 and his administrator assigned- said note and mortgage to plaintiff on January 28th, 1891.

Civil action tried before Hoke, J., and a jury at Fall Term, 1896, of Wilkes Superior Court. There was a verdict for the plaintiff and from the judgment therSon defendant appealed.

.Motion in the cause heard before Starbuck, J., at July Term, 1897, of Alexander Superior Court, made by defendant Calvin J. Cowles, to set aside the judgment by default rendered against him at January Term, 1897, in so far as it included the sum of $125.85, with six per cent, interest thereon from February 17th, 1897, the judgment having been, by consent, upon motion of defendant, Ida A. Cowles, reformed as to both defendants, in so far as it declared a lien upon the lands.

<p>MotioN of appellant for writ of certiorari.</p>

<p>MotioN of appellant for writ of certiorari.</p>

Civil action, begun by summons in Forsyth Superior Court, and upon the complaint the plaintiff obtained a restraining order which was heard before Starbuch, I., at Chambers, September 30th, 1897. Upon the complaint, answer, replication and affidavits, his Honor dissolved the restraining order and plaintiff appealed.

Civil ACTION heard before Greene, J., at Spring Term, 1897, of Wilkes Superior Court. His Honor rendered judgment for the plaintiff upon the pleadings and defendants appealed.

<p>Civile ACTION tried before Starbuclc, /., anda jury at July Term, 1897, of Alexander Superior Court. At the close of the plaintiff’s evidence the defendant moved for judgment, under Cli. 109, Acts of 1897, which was granted and plaintiff appealed. «</p>

Civil ACTION, tried before Greene, J., at February, 1897, Term, of Forsyth Superior Court. His Honor, by consent, found the facts (which are substantially stated in the opinion) and from the judgment rendered thereon for the defendant the plaintiff appealed.

<p>ActioN for divorce brought by Nancy E. Sims, by her guardian, W. R. Sprinkle, against W. M. Sims, tried before Starhucl•, «/., and a jury at Fall Term, 1897, of Wilkes Superior Court.</p> <p>Tlie action is entitled “Nancy E. Sims, by her guardian, W. R. Sprinkle v. W. M.'Sims.” On the trial the following-issues were submitted:</p> <p>1. Is the action brought in the name of the proper party, to-wit: ~W. R. Sprinkle, Guardian?</p> <p>2. Did Nancy E. Sims have sufficient mental capacity to enter into a marriage contract with W. M. Sims on the 14th day of November, 1893?</p> <p>On October 2,1898, a proceeding was begun to enquire into the mental condition of Nancy E. Sims, who at that time was Nancy E. Sprinkle. Accordingly, a jury was summoned, who found and reported her to be incompetent, for want of understanding, to manage her business affairs and subsequently the application of W. N. Sprinkle to be appointed her guardian was granted and he was accordingly appointed by the Clerk of the Superior Court in March, 1,895. Thereafter, in August, 1895, under an order of the Clerk of the Superior Court, in a proceeding for that purpose, a jury found that Nancy Sims-was sane and competent to transact the ordinary business affairs of life, and upon the coming in of the report it was adjudged “that the report of the said jury be and the same is hereby in all things confirmed and approved by the Court; and the Court doth declare her, the said Nancy E. Sims, to be of sane mind and competent to attend to the ordinary business affairs of life, and doth further order that William Sprinkle be removed from his said- office as guardian of her personal property and turn over the same to her or her duly authorized agent, and that he at once report to this Court the condition of the estate and the manner in which he has carried out this judgment; that notice issue to said former guardian informing him of his removal,” etc. It is admitted that Sprinkle was not a party to and had no-notice of said petition of W. M. Sims to remove him as guardian. It was admitted that Sprinkle had filed no report as guardian up to the time of this trial. After hearing the evidence his Honor decided that Sprinkle, as guardian, had the right to bring this action, and answered the first issue, “Yes.” Defendant excepted. The plaintiff introduced evidence in support of his contention on the second issue, the defendant offered no evidence, and the jury answered said issue, “No.” Defendant moved for a new trial for error in holding that the action was properly brought by Sprinkle as guardian. Motion overruled. Defendant excepted.</p> <p>Judgment was thereupon rendered dissolving the marriage and defendant appealed.</p>

Civil action for damages tried at August Term, 1897, of Ikedell Superior Court before Coble, J., and a jury. The plaintiff tendered the following issues: “1. Was the death of the plaintiff’s intestate caused or accelerated by the unwholesome condition of the prison of the City of Statesville, occasioned by the negligence of the said City to provide a prison suitable for the health and comfort of the prisoners?” “2.

Civil action tried before Starhuck, J., at August, 1897, Term of Forsyth Superior Court. The facts appear in the opinion. From a judgment for the plaintiff defendants appealed.

<p>Civil action tried before Star buck, J., on a case agreed, at Fall Term, 1897, of Davie Superior Court. There was judgment for the plaintiff and defendant appealed. The facts appear in the opinion.</p>

<p>Civil action* to recover land, tried at September Term, 1897, before Bryan, J. There was judgment for the defendant and plaintiff' appealed.</p>

Civil action to liave ■ a charge declared upon land in favor of plain tiffs, tried before Robinson, J., upon a case agreed at Pall Term, 1896, of Halifax Superior Court. There was judgment for the defendants and plaintiffs appealed. The facts appear in the opinion.

Issue of clevisavit vel non tried before Robinson, J., and a jury at June, 1897, Special Term of Bubjce Superior Court. Tire facts appear in tire opinion. There was a verdict for the propounders of the will and from the judgment thereon the caveators appealed.

Civil ACTION for trespass tried before Robinson, J., and a jury at June, 1897, (Special) Term of Burke Superior Court. There was judgment for the jdaintiff and defendant appealed.

<p>Oivtl action, brought ill the Superior Court of Wake County by W. H. Worth, State Treasurer, against the Piedmont Bank of Morganton, for the winding up the affairs of the Bank and the appointment of a receiver, and heard before Robinson, /., at Chambers, on the 11th day of December, 1897, on a motion to appoint a permanent receiver, and on affidavits of W. E. Walton and others, in answer to a rule on said Walton why he should not be adjudged in contempt for refusing to deliver possession of the property of defendant Bank to A. D. Cowles, who had been appointed temporary receiver by Robinson, J., on the 3rd of December, 1897.</p> <p>From the record it appears that the doors of the defendant bank were closed in the forenoon of December 2nd, 1897. On the same da-v the plaintiff, the Treasurer of North Carolina, by virtue of the Statute, (Chapter 155, Acts of 1891, and Chapter 478, Acts of 1893), hereinafter mentioned, and also as a creditor of the insolvent bank, brought an action in the Superior Court of Wake County for the purpose of winding up the affairs of the hank and of having a receiver appointed. This summons was issued on December 2nd, but the hour at which if was issued does not appear. On the same day, but at what hour does not appear, the complaint in the record ivas filed and verified. On the 3rd of December, 1897, at 9:45 a. M., Judge Robinson of the 4th Judicial District, made an order appointing A. D. Cowles temporary receiver of the bank. This order was made returnable on December 18th. Upon the affidavits of A. D. Cowles and S. L. Crowder, with exhibits attached, oil December 8th, at 7 p. m., Judge Robinson made an order returnable on Saturday, December 11th, at Goldsboro, in the 4th Judicial District, at 2 p. m., directing the bank to show cause why a permanent receiver should not be appointed on that date, and why the order returnable on the 18th should not be expedited; and finding as a fact that it was necessary to make an order returnable on the 11th. The order also directed W. E. Walton to show cause on that date wdiy he should not be adjudged in contempt for interfering with the possession of the temporary receiver A. D. Cowles. On the 11th of December at 4 p. m., the motions vrere heard, and an order appointing A. I). Cowles permanent receiver, and directing W. E. Walton to turn over to him the assets of the bank, and giving leave to the plaintiff and to Cowdes to apply for relief in case Walton should refuse compliance with the order vais signed.</p> <p>On December 2d, the hour not appearing, T. M. Webb, Sheriff of Burke County, I. I. Davis and others filed a creditor’s bill against the Piedmont Bank. The complaint in this action, asking for the appointment of a temporary receiver, etc., is dated December 2nd. The hour dies not appear. Copies of the summons and complaint 'were delivered to an officer of the defendant bank by the plaintiff, wdio was also Sheriff of Burke County. This complaint was taken to Judge Green, then at Boone. On December 3rd the affidavit which appears in the record vxas presented to Judge Hoke, wdio had come to Morganton for the purpose of hearing the motion, and at 6:45 p. m., he made an order appointing W. E.- Walton temporary receiver. On the same day the order reached Judge Green, who, after the appointment of Walton, and in ignorance of it, appointed I. I. Davis temporary receiver. The order of Judge Hoke was made re! turnable before Judge Green at Lenoir on December 15th. It was served by the Coroner upon the bank on December 4th. On that date Mr. Walton gave bond and demanded that the Bank Examiner, Crowder, who was in physical possession of the assets of the bank, should surrender them to him. This was declined by Crowder. On the evening' of the 4th of December, after dark, while Crowder was absent from the banking house, the Coroner and the receiver having obtained duplicate keys from the officers of the bank, proceeded to take physical possession of the bank; they put an additional lock upon its doors and thereafter excluded the Bank Examiner from any possession of the bank or its assets.</p> <p>On the 7th of December Judge Green ratified Judge Hoke’s order appointing Walton, accepted the resignation of I. I. Davis, and made an order to show cause why a permanent receiver should not be appointed, returnable on the 15th. On December 3()th at 8 p. nr., after the service of the order of Judge Robinson upon receiver Walton, the notice appearing in the record in the Webb case was presented to an officer of the bank and service accepted. The order required it to show cause the next day in Boone why a permanent receiver should not be appointed. The order appointing the permanent receiver was made by Judge Green on the 33th, prior to the appointment of a permanent receiver by Judge Robinson.</p> <p>From the order of his Honor, Robinson, J., appointing A. D. Cowles permanent receiver, and holding that the appointment of W. L. Walton by Judge Green, as temporary receiver, was subsequent to the -appointment of Cowles as temporary receiver, and directing said Walton to tuni over the property of the defendant Bank to said Cowles, receiver, W. L. Walton appealed.</p>

ActioN for mandamus by tlie plaintiff to compel the City of Goldsboro to appoint an arbitrator in pursuance of its charter and ordinances to assess damages claimed by plaintiff for use of his streets, heard before Robinson, J., at Chambers in Goldsboro in September, 1897. Prom a judgment for plaintiff defendant appealed.

Civil actiox, tried before Norwood, J., and a jury at Spring Term, 1896, of Sunny Superior Court. At the close of the testimony (which is summarized in the opinion of the Court) his Honor intimated that the plaintiff could not recover and thereupon the plaintiff submitted to non-suit and appealed.

This was a civil action brought by the plaintiff, the widow of Zel) Howell, in her individual capacity, and not as the personal representative of her deceased husband, against the Board of Commissioners of Yancey County, to recover damages for the death of her husband, occasioned by the alleged negligence of the defendants in permitting the comity jail to become unclean and unhealthy, thus causing the death of her husband, and heard before Norwood, J., at Fall Term, 1896, of…

This was a case on appeal from a Justice of the Peace, and heard before Greene, J., at Fall Term, 1897, of McDowell Superior Court. The plaintiff moved the Court to dismiss the appeal, for the reason that there was no notice of appeal served on the Justice of the Peace, no notice having been given in open Court before the Justice. The appearance of the plaintiff was a special one for the purpose of making the motion to dismiss the appeal.

<p>Action for Specific Performance — Boundaries—Parol Evidence —Competency—Improper Objection• — Exclusion of Improper Evidence by the Court — Neiv Motion.</p> <p>1. On the trial of an action for specific performance of a contract for the purchase of land, the defendant defended on the ground that, as to a part of the land, plaintiff had no title, and plaintiff testified that he and the owner of the adjoining tract (since deceased) had agreed on thedividing line and according to such agreement he, the plaintiff, was the owner of the whole boundary sold to defendant. No party represented the deceased or claimed title under him. The defendant objected to the testimony on the ground that it was incompetent under Section 590 of ‘ihe Code. Held, that, while the testimony was incompetent the objection that it was so under Section 590 of The Code was untenable, the true reasons for its incompetency being (1) that it was res inter alios aeta and (2) that plaintiff could not be allowed to prove a title to the land by parol evidence.</p> <p>2. While it is the general rule tliai, when a bad ground-lias been assigned for an objection to testimony offered below, a good ground cannot be assigned on the hearing of the appeal, yet it is subject to the exception that, where testimony is offered to prove a fact which it is unlawful to prove by'parol, it is the duty of the Court to exclude it without objection.</p>

Civil actioN begun on the 2M day of March, 1895, and heard, on exceptions to report of referee, at Fall Term, 1897, of Burke Superior Court before Greene, J. The action was to recover the sum of $132.37, the excess of interest alleged b)! plaintiff to have been paid to defendant under mistake and in ignorance of his rights.

Appeal by W. IT. Quick, administrator of Isaac Bowman, respondent, from a judgment of the Clerk of the Superior Court of Union County, ordering that the letters of administration to him, on the estate of Isaac Bowman be recalled, cancelled and revoked, heard before Norwood, Judge, in court-house in Monroe, on Saturday, 15th February, 1897. His Honor sustained the ruling of the Clerk, and Quick appealed. The facts appear in tire opinion.

Civil aotioN for the recovery of the office of cotton weigher for the City of Charlotte, brought by the relator ’against the defendants and tried before Iloke, J., and a jury at Fall Term, 1897, of Mecklenburg Superior Court on an agreed statement of facts (which are summarized in the opinion of Montgomery, J.) Upon the facts agreed, his Honor directed the jury to answer the issues “no,” and gave judgment against the plaintiff who appealed.

Civil action, tried before Brown, J., and a jury at March Term, 1897, of Mecklenburg Superior Court, on appeal from the Court of a Justice of the Peace. There was a verdict for the plaintiff and the defendant appealed from the judgment thereon for the reasons assigned in the opinion of the Court.

<p>Mechanic’h Lien — Married Woman — Charge on Separate Estate.</p> <p>The separate estate of a married woman is not subject to a lien for labor done or materials furnished for its improvement under a verbal contract of herself and husband.</p>

<p>Trial— Evidence —Irrelevant Testimony— Harmless Error— Charge of Trial Judge — Verdict.</p> <p>1. Although testimony, which does not prove, or tend to prove the contention of either party to an action, is irrelevant and should properly he excluded, yet its admission is harmless error.</p> <p>2. The fact that, in the trial of an action, one party happens to get the "benefit of the testimony not strictly competent, does not justify the admission of incompetent evidence for the benefit of the other party {Oheeh v. Watson, 90 N. 0., 302, disapproved).</p> <p>3. When the substance of a party's prayer for instruction is given in the charge by the trial Judge, it is not necessary that the exact language of the prayer should be followed.</p> <p>4 Where, in the trial of an action by the vendee of land against the vendor to recover the difference between $782, the contract price of the land, as plaintiff alleged, and the value of ten shares of stools in a Building- and Loan Association which, as defendant alleged, the plaintiff subscribed for and assigned to him and agreed to keep up until maturity, and for which defendant received $1.000 at its maturity, the issues were : (1) "What was the purchase price of the property under the terms of the contract ?” and (2) "Is the defendant indebted to plaintiff? If so, in what amount?” ; and the jury responded to the first issue “Ten paid up shares in Building and Loan, and plaintiff was only to be made to pay therefor $782and to the second issue the response was “Thirteen dollars and interest;” Held, that the verdict was an explicit finding that the contract price of the land was ten shares of stock as contended for by defendant, and plaintiff cannot complain of the inconsistent finding, in response to the second issue, in her favor.</p>

Civil actiox tried before Norwood, J., and a jury at Fall Term, 1897, of MadtsoN Superior Court. The facts appear in the opinion. There was a judgment for defendants, on the verdict, and plaintiff appealed.

Civil action commenced in the Superior Court of Stanly County to enjoin the payment of the interest on certain bonds issued by Stanly Comity in aid of the Yadkin Railroad Company and heard on the return of the motion to show cause, &c., before Coble, J., at Chambers. From an order continuing the injunction to the hearing the defendant appealed.

<p>Action to Recover Land — Defective Description in Deed — Parol Evidence.</p> <p>While parol evidence is competent to “fit tlie description to the thing,” it is not competent to establish a line or corner when the instrument by its terms wholly fails to identify such line or corner; in other words, it is competent to find but not to maten a corner.</p>

Civil action to have defendants declared trustees for plaintiff and-to have a conveyance to her of a tract of land, tried before Norwood, J., at Fall Term, 1897, of TraNSyl-VANiA Superior Court. In the complaint the plaintiff alleged that the land was bought with her own money and that, in making the deed, it was by mistake or fraud executed to her husband instead of herself. The material allegations were denied in the defendant’s answer.

<p>ActioN of claim and delivery tried before Coble, J., at Spring Term, 1897, of Ccatberlanj) Superior Court. The plaintiff who lives within a mile beyond the corporation limits of Fayetteville brought the action to recover possession of his cow which had been impounded by the Town authorities of Fayetteville and was held for the payment of one dollar poundage allowed by the charter of the town or acts relating to it to be charged for stock running at large in the town. Chapter 154, Acts of 1895, prohibits any town in Cumberland County from charging non-resident owners for stock running at large in the town more than one fourth of the penalty charged to residents and relieves entirely from the penalty non-residents of stock so running at. large who live more than a mile from the corporate limits of the town. The plaintiff tendered the sum of twenty-five cents which was refused. The defendant contended that the Act, Chapter 154, Acts of 1895, was unconstitutional in that it violated the provisions of Article I, Section 7, of the Constitution of North Carolina and the 14th .Amendment to the Constitution of the United States. His Honor gave, judgment for the plaintiff and defendant appealed.</p>

<p>Motion to advance the cause made by plaintiff.</p>

AotioN in the nature of quo warranto tried before Goble, J., at November Term, 1897, of Iredell Superior Court, on complaint and answer. The complaint was as follows: “The plaintiff complains and alleges— 1st. That the relator, L. Cl Caldwell, is a citizen and tax-payer of Iredell County, North Carolina. 2nd.

<p>[For Syllabus see State ex rel Caldwell v. Wilson, (ante), page 425.]</p> <p>Action in nature of quo warranto to try the title to the office of Railroad Commission, tried before Robinson, J., at October Term, 1897, of Wake Superior (hurt. From a judgment for the plaintiff the defendant appealed.</p>

ActioN for damages for injuries caused by the negligence of defendant, tried.at Spring. Term, 1897, of Oi-iowan Superior Court before Bryan, J., and a jury. The defendant set up as a defence the contributory negligence of the plaintiff. The testimony was as follows: (}. II. White testified: “Am son of plaintiff! Accident occurred at Corapeake station Monday, February 17, 1896, at 7:30 o’clock p. m.; I was with him.

Civil action for the recovery of an alleged balance of salary due the plaintiff as general store keeper for defendants tried before Adams, J., and a jury, at February Term, 1897, of Wake Superior Court. The letter set out in the opinion constituted the only contract between the parties.

Civil -action for damages tried before Adams, J., and a jury, at April Term, 1897, of Wake Superior Court. There was a verdict for the plaintiff for $10,375.00 which the defendant moved to have set aside on the ground of excessive damages. The motion was refused and from the judgment rendered on the verdict the defendant appealed, assigning as error the instructions to the jury.

<p>ActioN for damages tried before Timberlake, J., and a jury at June ^Special)- Term, 1897, of Durham Superior Court. There was a verdict for the plaintiff and from the judgment thereon defendant, appealed. In this Court a motion was made for a new trial on the ground of newly discovered evidence.</p>

Aotion for damages, tried before McJver J., and a jury, at August (Special) Term, 1897, of Guilford Superior Court. There was a verdict for the plaintiff and defendant appealed from the judgment thereon. In this Court the plaintiff moved to dismiss the appeal under Ride 17, which was allowed anil thereupon-the defendant moved to reinstate the case on the grounds set out in the opinion.

AotioN for damages for injury to a horse tried on appeal from a judgment of a Justice of the Peace, before Mc.Iver, J., and a jury, at Spring Term, 1897, of Lenoir Superior Court. The plaintiff submitted to a 11011-suit on the intimation of his Honor that he could not recover and appealed. In this Court the defendant moved to dismiss because the case on appeal was not served in time and also to affirm the judgment for want of a case and because no errors appear in the record.

Civil ACTION tried before Coble, J., and a jury at Spring Term, 1897, of Bladen Superior Court, to recover damages from the defendant resulting to plaintiffs land from the defendant’s failure to comply with a consent judgment rendered in an action between the same parties at Fall Term, 1889, of Bladex Superior Court, for injuries to the real estate of plaintiffs.

Civil actioN for an alleged balance due on contract for work done by plaintiff for defendant tried before Coble, J., and a jury at July Term, 1897, of RANDOLPH Superior Court. There was a verdict for the plaintiff and from the judgment thereon the defendant appealed. The facts appear in the opinion.

Civil action tried at Fall Term, 1897, of Surry Superior Court before Starbuclc, J., and a jury.

Civil action for damages tried before Greene, J., and a jury at Fall Term, 1897, of McDowell Superior Court on appeal from a judgment of a Justice of the Peace. The facts arc stated in the opinion of Chief Justice Fairclotlr. The instructions prayed for by the defendant on the trial and referred to in the opinion as having been properly refused, were as follows: “1.

Action for damages for the killing of the horses of plaintiff through the negligence and wanton conduct of defendants as Receivers of the Richmond and Danville Railroad Company, tried before Bryan, J., and a jury, at Fall Term, 1896, of Swain Superior Court. There was a verdict for the plaintiff and defendants appealed. The facts appear in the opinion of the Court.

AotioN for damages for the negligent killing of plaintiff’s intestate, tried before Star buck. J., and a jury at May Term, 1897, of Rowan Superior Court. . The facts are stated in the opinion. There was a verdict for the plaintiff for $15,000 but from the ruling of his Honor that the defendant was not liable thereon plaintiff appealed.

<p>Action for Damages — Pleading Counter-Claim — Issues— Exceptions.</p> <p>1. Though no counter-claim is pleaded the Court can order a reply to be filed to any defence set up in the answer or may allow it to be filed as a matter of discretion.</p> <p>2. An exception to issues submitted or for failure to submit issues tendered can not be sustained where those submitted properly arose upon the pleadings.</p> <p>3. An exception to the refusal of a prayer to instruct the jury that there is no evidence will not be considered in this Court where the case on appeal does not set out the evidence itself or contain a statement that there was no evidence, the presumption being that the trial Judge charged the jury correctly upon the evidence adduced on the trial.</p>

<p>IndjCTURNT for rape, tried at February Term, 1897, of Beaupokt Superior Court, before Bryan, J., and a jury. There was it verdict of guilty and after sentence of death was pronounced it came to the knowledge of the prisoner’s counsel that the jury had visited the scene of the alleged rape while they were considering the case, without the knowledge or consent of the defendant, his counsel or the Court. An affidavit was filed by the prisoner to that effect and as a basis for a«motion to set aside the verdict and for a new trial. Ilis Honor found the following facts:</p> <p>“The evidence in this case was closed on Saturday evening, the 20th of February. The jury was put in charge of a sworn officer. It was agreed by counsel on both sides that the jury might attend church on Sunday in a body and with the officer and also take walks for purpose of recreation. On Sunday afternoon the jury started out for a walk and, upon the suggestion of a juror, they walked down the railroad track to the red hill. After being «there they went to view the surroundings and endeavor to locate the place where the rape was committed. There was some discussion as to the location of the place. They discussed the distance of Julia Williams’ house and also that of Arthur Williams from the supposed scene of the rape with reference to the testimony at the trial. The officer in charge asked of a negro boy, at the suggestion of a juror, which was Anthony Perry’s house and then pointed it out to the juror. One of. the jurors put his foot on the stubble near the track and said “See! it makes no impression.” A button was found and a-juror jestingly said it might be one of Annie Smith’s drawer buttons and it was discussed. At one time the jury were divided into groups. Three or four went off seventy-five or a hundred yards into the bushes temporarily. At no time were any of the jurors out of the view of the officer. A juror remarked that the house on top of the red hill was further than they thought it was. The jurors discussed the case while out there. The cedar spoken of in the testimony was seen. The railroad walked on is a thoroughfare. The place was not located, no one being present to identify it. The jury went to the scene of the rape without knowledge or consent of the Court or of the counsel- engaged in the cause.”</p> <p>The evidence in the case was closed on Saturday evening, the visit of the jury to the locality was*on Sunday and the argument of counsel and charge of the Court were on Monday.</p> <p>His Honor refused to set aside the verdict and the defendant appealed.</p>

CRIMINAL ACTION commenced before a Justice of the Peace and tried on appeal before Bryan, J., and a jury at Spring Term, 1897, of Beaufort Superior Court, charging the defendant with violating Chapter 173, Acts of 1895, as' amended by Chapter 200, Acts of 1897. In the Superior Court a special verdict was rendered and his Honor being of the opinion thereupon that the defendant was not guilty so adjudged and the State appealed.

CRIMINAL ActioN commenced before a Justice of tlic Peace and tried before Bryan, /., and a' jury at Bpring Term, 1897, of Beaufort Superior Court, charging the defendants with aviolation of Chapter 173, Act’s of 1895 as amended by Chapter 200, Acts of 1897. The jury rendered a special verdict, the substance of which is set out in the opinion, and his Honor being of the opinion that the defendant was not guilty so adjudged and the State appealed.

Indictment for murder tried at February Term, 1897, of the Circuit Criminal Court of Edgecombe County before Meares, J. The defendant was convicted of murder in the first degree and appealed assigning various alleged errors for one of which, as set out in the opinion, a new trial is granted.

<p>Indictment for IVespass on Land — Burden of Proof — •Claim of Right — Reasonable Ground of Belief — Destroyed Records— Evidence.</p> <p>1. If upon tlie trial of an indictment for entry on land after being forbidden, such entry is shown or admitted, the burden is upon the defendant to show that he entered under a bona fide claim of right.</p> <p>2. In such case, in addition to defendant’s testimony that he believed he had a right to enter he must show that he had reasonable ground for such belief, and in the absence of such additional evidence it is the duty of the trial Judge to instruct the jury that, if they believe the evidence, the defendant is guilty.</p> <p>3. In the trial of an indictment for entry upon land after being forbidden, the defendant testified that he believed he had a right to follow an old road across the land in question,, but admitted that the road had been blocked for 10 or 11 years by wires put up for the purpose; I-Ield, that the defendant’s evidence of a bona fide belief, being un-sustained by any evidence of a reasonable ground for such belief, was immaterial, and the trial Judge properly instructed the jury to find the defendant guilty if they believed the evidence.</p> <p>4. Where the book of records ofia board of township trustees is shown to have been destroyed by fire, the making of an order discontinuing a certain road can be proved by one of the trustees.</p>

<p>INDICTMENT for seduction, tried before Robinson, J., and a jury at July Term, 1897, of Wake Superior Court. The defendant was convicted and appealed assigning as error the admission of certain evidence for the State and the remarks of his Honor to bystanders at the trial.</p>

<p>INDICTMENT for carrying concealed weapon, tried before Mclver, J., and a jury at September Term, 1897, of Nash Superior Court. The evidence showed that the defendant carried a pistol in. the upper breast pocket; that the pistol was 10 or 12 inches long and that part of the handle and barrel protruded from the top of the pocket. The Judge charged the jury, who returned a verdict of guilty, that if they found from the evidence that any part of the weapon was concealed they should return a verdict of guilty. The defendant appealed assigning as error the above recited in-strúction.</p>

INDICTMENT for liegligencC in the discharge of the duties of the office of Principal Clerk of the House of Representatives of the General Assembly of North Carolina, tried before Mclver, J., and a jury at January Term, 1896, of Wajke Superior Court. There was a verdict of guilty and defendant moved to set aside the verdict as against the testimony for a new trial, &c. The motion was refused and defendant was adjudged to pay a fine of $250 and the costs, and appealed.

INDICTMENT for murder, tried before Adams, J., and a jury at March Term, 1897, of Wake Superior Court. The defendant was convicted of murder in the second degree and appealed assigning error in the instructions to the jury. The charge of his Honor was as follows: “The State is required to satisfy you beyond a reasonable doubt of the guilt of the prisoner. The prisoner is not required to show his innocence.

INDICTMENT for failure to pay taxes, tried before Robinson, J., and a jury at Fall Term, 1897, of Johnston Superior Court. The jury rendered the following special verdict: “That defendant is a resident of this County. That on the 16th day of November, 1897, the defendant was liable for a poll tax in the sum of two dollars'and a property tax in the sum of ninety-one cents and that he failed to pay the same.

<p>IndictmeNt tried before Mclver, «71, and a jury at Fall Term, 1896, of Chatham Superior Court. The defendant was convicted, and appealed.</p>

<p>Indictment for Burning Stable■ — ■Arson—Indictment, Sufficiency of — Possession of Building.</p> <p>1. In an indictment under Sections 085 (6) of The Code directed against setting fire to certain kinds of buildings “whether such buildings shall then be in possession of the offender or in the posse -sion of any other person,” it is not necessary to allege that the burned building was “in possession of” some person named.</p> <p>2. This Court renders judgment upon an inspection of the .whole record and must, therefore, be satisfied of the sufficiency of such record. (Section 957 of The Qode.)</p> <p>8 The attention of Clerks of the Superior Court is called to the necessity of observing the legal requirements in respect to making up transcripts of record on appeal in criminal cases so as to show the organization of the Court, that it was held at the time and place specified by law, that a grand jury was drawn, sworn and charged and presented the indictment set forth in the transcript.</p>

<p>INDICTMENT for selling liquor on Sunday, tried before Allen, J., and a jury at May Term, 1897, of Guilford Superior Court. The defendant was convicted and appealed.</p>

<p>INDICTMENT containing luyo counts, one for rape and the other for abusing and carnally knowing a female child over ten and under fourteen years of age, (Chapter 295, Acts of 1895) tried before Allen, J., and a jury at Spring Term, 1897, of Guilford Superior Court. The facts are stated in the opinion.</p> <p>The fourth exception referred to in the opinion was to the evidence of Dr. Schenck who, for-the purpose of showing penetration by the male defendant and also to the fact that the prosecutrix was under fourteen years of age, was allowed to testify that, upon exainination of the prosecutrix, he had found the private parts torn and that there were no signs of womanly development or of arrival at the age of puberty which, he stated, was usually between thirteen and fifteen years of age.</p> <p>The sixth exception referred to in the opinion was to the refusal of his Plouor to give instructions that were not asked .for until after the State’s solicitor had begun his concluding argument to the jury.</p> <p>The seventh exception was to the instruction that if the defendants made the prosecutrix drunk and the'male defendant had sexual intercourse with her aided by the female defendant who forcibly held the prosecutrix, both would be guilty.</p> <p>The defendants were convicted of the lesser offence charged in the indictment and were sentenced to imprisonment in the penitentiary, the male defendant fór 15 years and the female defendant for 10 years. From this judgment the defendants appealed.</p>

Inuiotmisnt for assault, tried before Adams, I., and a jury at August Term, 1897, of Guileord Superior Court.. The defendant was convicted and sentenced to jail for two years to be worked on the public roads of the County and from this judgment the defendant appealed.

INDICTMENT for forcible trespass, tried before Allen, J., and a jury at Spring Term, 1897, of Chatham Superior Court. The facts appear in the opinion. The defendants were convicted and appealed.

INDICTMENT against C. E. McLean, J. H. Heritage, J. C. Holt and. others, under Section 977 of The Code, for counseling, procuring and commanding the removal of a body buried in a cemetery without due process of law and without the consent of the next of kin of the deceased, tried at Spring Term, 1897, of AlamaNCE Superior Court. The facts are stated in the opinion. The defendants’ prayers for instructions were as follows: “First. There is no evidence against Joseph 0.

The defendant was convicted on a criminal charge at September Term of Cumberland Circuit Criminal Court, before Sutton, J., and a jury and appealed in forma pauperis. In this C!ourt the Attorney General moved to dismiss appeal for defective affidavit.

INDICTMENT for obtaining money under false pretenses, tried before Coble, J., and a jury at March Term, 1897, of Moore Superior Court. The defendant was convicted and appealed. The facts appear in the opinion.

<p>Indictment for Compounding Felony — Practice—Tidal—Exceptions to Evidence Before Verdict — Motion in Arrest of Judgment — Instructions.</p> <p>1. On the trial of a Justice of tlie Peace charged with compounding a felony, the Court was requested to instruct the jury, in substance, that the defendant, being a Justice of the Peace, is not guilty of compounding n felony for merely making an honest mistake in judgment in regard to his duty to dismiss the parties before him charged with tlie felony, and if lie, through ignorance of iawr, failed to conduct tlie casein a regular and orderly manner “he is not guilty.” His Honor gave tlie instructions modified by the substitution of tlie words “This alone would not make him guilty” for the closing words of the prayer; Held, there was no error.</p> <p>¡3. Exceptions to tlie sufficiency of evidence to support a verdict must he taken before verdict.</p> <p>3. A judgment can be arrested in criminal cases only when the defect complained of appears upon the record proper.</p> <p>4. Where parties charged with larceny were arrested and taken before a Justice of tlie Peace and were discharged after the payment of the costs and a sum of money agreed upon between them and the prosecutor, such voluntary payment was evidence of their guilt of the larceny charged in the warrant, and the acceptance of the costs from the defendants by the magistrate was some evidence against him on the trial of an indictment for compounding the felony.</p>

PeosecutioN for failure to work public roads, tried before Starbuck, J., and a jury, upon an appeal from a judgment of a Justice of the Peace, at Fall Term, 1897, of Stokes Superior Court. The defendant was convicted and appealed. The facts appear in the opinion.

<p>Indictment for Resisting Officer — Municipal Co-rporation— Charter — Bo m idaries.</p> <p>Where the charter of a town provided that its corporate limits should be “one fourth of a mile East. West, North and South from the centre of the town which centre is the site of the brick building formerly known as the Court House, and shall run with the four cardinal points of the compass;” Held, that the boundary is a square whose sides run due East and West, North and South through five fixed points one fourth of a mile East, West, North and South from the designated centre.</p>

INDICTMENT under Section 1082 of The Code, as amended by Chapter 53, Acts of 1885, tried before Starbuck, J., and a jury at August Term, 3897. The facts appear in the opinion.

Indictment for failure to pay State and Comity taxes on the first Monday of September, 1897, and before the first Monday of November, 1897, tried before Starbuck, J., and a jury at Fall Term, 1897, of Rockingham Superior Court.

INDICTMENT for forcible trespass, tried before Adams, I, .and a jury at Spring Term, 1897,’ of Yancey Superior Court.

IxdictmbNT for arson, tried before Greene, J., and a jury at July Term, 1897, of Catawba Superior Court. The indictment was as follows : “The State of North Carolina, Catawba County, Superior Court, Spring Term, 1897.

<p>Indictment for Assault with Intent to Rape — Trial—Evidence —Intent—Abandonment of Purpose.</p> <p>1. Where, in the trial of an indictment for assault with .intent to commit rape, it appeared that the defendant seized the prosecutrix, threw her upon the ground, put his hand over her mouth, pulled up her clothes, unbuttoned his pants and put his hands on her person and got upon her; that she forcibly resisted and accused arose because, as prosecutrix “supposed” she outdid him; Held, that the evidence was sufficient to be left to the jury as to the intent charged and that it was not error to refuse an instruction that the jury could not convict the defendant of a greater offence than a simple assault.</p> <p>2. On the trial of an indictment for assault with intent to commit rape it was not error to charge that “if the jury are satisfied beyond a reasonable doubt that the defendant laid hands upon the prosecutrix violently and against her will, for the purpose of having sexual intercourse with her, and that, at the time he so laid hands upon her, he intended to accomplish his purpose at all hazards in defiance of and notwithstanding any resistance she might make, then the defendant was guilty of an assault with intent to commit rape although he may have subsequently abandoned his purpose.”</p>

INDICTMENT for selling intoxicating liquors within a prohibited territory, tried before Hoke, J., and a jury at Fall Term, 1897, of Gaston Superior Court. The defendant was convicted and appealed. The facts appear in the opinion.

Indictment for conspiracy to procure the seduction of a young unmarried woman, tried at Fall Term, 1897, of Ashe Superior Court before Greene, and a jury.

ActioN by the State of North Carolina on the relation of the Solicitor, against N. Jenkins and others on a bond for the appearance of defendant Larkin Jenkins before a Justice of the Peace, tried before Hoke, J., and a jury, at Spring Term, 1897, of Caldwell Superior Court. There was judgment for the plaintiff and defendants appealed.

INDICTMENT for practicing medicine without license, &c., tried before Starbuck, J., and a jury at Fall Term, 1897, of Wilices Superior Court.

INDICTMENT for conspiracy to procure a' fraudulent marriage in order to encompass the seduction and defilement of two women, tried before Adams, J., and a jury at Spring Term, 1897, of YaNCEY Superior Court.

INDICTMENT for murder, tried before Greene, J., and a jury at Fall Term, 1897, of Mitchell Superior Court.

IndictMENT against Andy Collins and Charles Collins for larceny, tried before Norwood, J., and a jury at Fall Term, 1897, of Macon Superior Court. The defendants were convicted and Andy Collins appealed, assigning as error the admission of declarations of his co-defendant as to the part .appellant took in the robbery of the store of the prosecutor, Hale.

<p>Indictment for Burglary — Juror, Qualification of — Suit Pending and at Issue — Special Venire — Revision of Jury — Change of Venue — Affidavit to Remove — Discretion of Trial Judge— Burglary — Trial—Evidence, Competency of.</p> <p>1. A juror who lias a suit “pending” but not “at issue” at the term of the Court at which he has been drawn to serve, is not disqualified under Section 1728 of The Code</p> <p>2. The requirements of the Statute as to the manner or time of drawing jurors is directory merely and, hence, an objection that the jury list was not revised when required by Statute will not be considered in the absence of proof of bad faith or corruption on the part of the officers charged with that duty or where it does not appear that the party objecting has been, in some way, prejudiced thereby.</p> <p>3. Sections 196 and 197 of The Code forbid a removal of a caiise from the County of the right venue to another unless the trial Judge shall be “satisfied” that justice demauds it; and the granting or refusal of such motion, however strong the affidavits in support of or against the motion may be, and whether there be counter affidavits or not, is not reviewable.</p> <p>4. In the trial of a person for burglary, it is not competent for him to show that other burglaries were committed in the same neighborhood about the same time as the’ oue with which he is charged was committed.</p> <p>5. An objection by a prisoner charged with a capital offence that the special venire was summoned by the Sheriff as prescribed by Section 1738 of The Code instead of being drawn from the jury box as prescribed by Section 1739 of The Code, is untenable since the latter method is purely discretionary.</p>

<p>INDICTMENT for forgeiy of a promissory note, tried before Ilohe, J., and a jury at Fall Term, 1897, of Union Superior Court. The defendant was convicted and appealed, assigning as error the refusal of his prayer for instruction that evidence as to his character could not be allowed to affect the question of his guilt or innocence but only his credibility as a witness, he having testified in his own behalf.</p>

IkdictMENT for assault aud battery, tried at August Term, 1897, of Umion Superior Court, before Iloke, I, and a jury. The defendant was convicted and appealed. The facts sufficiently appear in the opinion.

INdictment under Section 2802 of The Code, for removing a division fence without- notice, &c., tried before Ewart, J., and a jury at January Term, 1897, of the Criminal Court of Buncombe county. The defendant was convicted and appealed.

<p>Indictment for Giving Away Intoxicating Liquor on Election . Day — Evidence, Sufficiency of — Intent.</p> <p>1. Where, in the trial of an indictment for giving' away intoxicating- liquor on an election day, there was direct evidence that the defendant gave whiskey to one It. within the time and at the place as charged, it was not error to refuse an instruction that there was not sufficient evidence to convict</p> <p>2. Where, in the trial of an indictment under Section 2740 of The Oode, for giving away intoxicating liquor on an election day, it appeared that defendant casually found a bottle of whiskey and passed it to - another who drank of it; Held, that such act was a violation of the Statute.</p> <p>3. It is not necessary, to constitute a violation of Section 2740 of The Code, that the selling or giving- away liquor on election day shall be with the intent to influence any voter or with any intent.</p>

IkdiotMEnt for fornication and adultery, tried before Norwood, J., and a jury at Fall Term, 381)7, of Macon Superior Court. The defendants were convicted and appealed, assigning as error the grounds referred to in the opinion of the Court.

<p>Indictment for Murder — Self-Defence—Dcidenée—Instructions —Mitigation—Burden of Proof — Violent Character of Deceased — Threats.</p> <p>1. Where, in the trial of an indictment for murder, there is an entire absence, even of a scintilla, of evidence of self-defence, it is not error to instruct the jury that there was no evidence tending to show that the killing was done in self-defence.</p> <p>2. Where, in the trial of an indictment for murder, the wilful killing has been admitted or pro\ed beyond a reasonable doubt, the burden rests upon the prisoner of showing such facts as he relies up'ou in mitigation or excuse, and for such purpose he has the equal benefit of all the evidence in the case whether introduced by himself or by the State; hut, though such mitigating- facts be shown as will reduce the crime to manslaughter, the burden is still upon him to show such further facts as will excuse the homicide before he can be entitled to an acquittal.</p> <p>S. In the trial of one charged with murder, facts offered by the accused in mitigation or excuse need not be proved beyond a reasonable doubt but only to the satisfaction of the jury.</p> <p>4 Whei e, in the trial of one charged with murder, the wilful killing is admitted or proved and there is no evidence of self-defence, testimony as to the violent and dangerous character of the deceased and of his threats against the accused is not admissible.</p> <p>5. On the trial of one charged with murder, evidence of threats by the deceased against the accused and of the violent character of the deceased.is not admissible to show self-defence unless such character was known and sncli threa's communicated to the accused, except in cases where the evidence of the killing is entirely circumstantial.</p>