Volume 122 — North Carolina Reports

Civil ACTION tried before Bryan, J., at Spring Term, 1897. of Camden Superior Court, on complaint and demurrer, the tenor of which is set out in the opinion of the Court. The demurrer was sustained and plaintiff appealed.

Civil action brought at Fall Term, 1897, of Beaufort Superior Court to enjoin the issue of bonds of the town of Washington for the erection of an electric light plant, and heard before Brown, J., at Chambers in Washington, N. C., on September 4, 1897. His Honor refused the injunction and plaintiff appealed.

Civil action to enjoin the execution of a contract by the defendant corporation with John Orlando White for a water supply for the town of Elizabeth City, heard on complaint and answer, used as affidavits, before Brown, J., at Fall Term 189J, of Pasquotank Superior Court. The injunction was made perpetual and defendant appealed.

<p>Municipal Corporation — Necessary Expenses — Public Schools — Taxation—Constitutionality of Statute.</p> <p>1. The support of public schools is not a necessary expense of a municipal corporation within the meaning of Section 7, Article VII of the State Constitution.</p> <p>2. The support of public schools not being a necessary expense of a municipal corporation, an Act of the General Assembly providing for submission to a popular vote of the question of the levy and collection of a tax upon property and polls within the municipality, in excess of the Constitutional limit, for the maintenance of public schools, is void (so far as it relates to such taxation) unless passed with the formalities prescribed by Section II of Article II of the State Constitution.</p>

Motion before the Clerk of the Superior Court of Washington County for execution against J. H. Hoff to enforce the payment of a charge on land in Hoff’s possession alleged to have been made against it in favor of a parcel of land allotted to plaintiffs in partition proceeding. The motion was refused by the Clerk whose ruling was reversed by his Honor, Brown, J., at Chambers, and the defendant Hoff appealed.

<p>Injunction— Voluntary Nonsuit — Practice — Damages.</p> <p>1. Where a plaintiff takes a voluntary non-suit, the judgment is a final determination of the matter in issue and, if an injunction has been issued, the defendant can have his damages assessed upon motion in the cause.</p> <p>2. Upon the dissolution of an injunction and final judgment against the plaintiff no matters can be heard in the assessment of damages which constituted a defence to the action.</p> <p>3. On the dissolution of an injunction by which the defendants were enjoined from entering upon the land to cut or remove any timber or commit any trespass thereon, they are entitled to recover as damages the value of timber cut by them before the injunction was served and converted by the plaintiff.</p> <p>4. One who has been prevented by injunction from prosecuting his business cannot recover for loss of time or employment without showing that he used diligence in attempting to find other employment and failed; and, on the same principle, defendants who were enjoined from removing timber from their lands cannot recover for the expense of feeding their teams which remained idle where there was no evidence that they used diligence in attempting to find employment for such teams.</p> <p>5. The right of the defendants to recover damages against the plaintiff and his sureties on an undertaking in an injunction, upon the dissolution of the injunction, is, under the provisions of Chapter 251, Acts of 1893, limited to the penalty of such undertaking.</p>

Civil action tried before Brown, J., and a jury at Fall Term, 1897, of Chowan Superior Court. The facts-appear in the opinion. From a judgment for the plaintiff the defendant appealed.

Civil action to recover possession of a lot of tobacco seized by the defendant Cullens, as sheriff, under an execution against the husband of the plaintiff, tried at Spring Term, 1898, of Hertford Superior Court. ' The land on which the tobacco was raised was owned by Noah Evans, and occupied as a home formally years before bis death, in 1812, leaving four children, his heirs at law, to whom the land descended.

Civil ACTION tried before Brown, J., and a jury at Fall Term, 1897, of Camden Superior Court. The facts sufficiently appear in the opinion. There was a verdict for the plaintiffs, and from the judgment thereon defendant appealed.

Civil Action to recover damages for an alleged trespass on land tried before Bryan, J., and a jury at Spring Term, 1897, of Gates Superior Court. There was a verdict for the defendant and from a judgment thereon the plaintiff appealed.

Civil action tried before Timberlake, J., and a jury at Fall Term, 1896, of Beaufort Superior Court on appeal from the judgment' of a Justice of the Peace. The facts appear in the opinion. There was judgment for the defendant and the plaintiff appealed.

<p>Rehearing of Decided Causes — Practice—Stare Decisis.</p> <p>1. Rehearings of decisions of cases of this Court are granted only in exceptional cases and, when granted, every presumption is in favor of the judgment, already rendered.</p> <p>2. Where neither the record nor the briefs on the rehearing of a case disclose anything that was not apparently considered on the first hearing, the former judgment will not be disturbed.</p>

<p>Action lo Set Aside Eraibdulent Conveyance — Rights of Creditors — Mortgagee's-—Personal Property Exemption.</p> <p>1. Where, in an action to set aside a mortgage as fraudulent, it is found that the debts secured by the mortgage were bona fide, but the mortgage was fraudulent as to the plaintiff' creditors, the latter cannot recover from the mortgagee money paid to him before the levy of an attachment by the creditors.</p> <p>2. The personal property exemption of a debtor who makes a fraudulent conveyance is not forfeited thereby.</p> <p>3. In laying off a personal property exemption of a debtor^ the property upon which there is no lien must first bo exempted.</p>

Civil ACTION to foreclose a deed of trust covering a large tract of timber lands in Dare County, pending in the Superior Court of said County. No answer or demurrer was filed and a decree of sale was entered, by consent, at May Term, 1896. The sale was made on 18th November, 1896, and the motion to confirm the report of sale was heard by Bryan, J., (by consent) at Chambers in Raleigh on 14th January, 1897, and at Newbern on 16th June, 1897.

Civil action for damages for trespass on land and an injunction, heard before Timberlake, J., at Fall Term, 18SHI, of Dare Superior Court, on exceptions to the report of Hon. H. G. Connor, referee.

Civil action to recover the amount of an insurance policy upon the life of Margaret Ann Gardner and payable to the plaintiff, Mary 0. Albert, her step-daughter, tried before Bryan, J., and a jury at May Term, 1897. of Beaufort Superior Court. There was a verdict for the plaintiff and defendant appealed, assigning numerous errors. The facts necessary to an understanding of the opinion are set out therein.

Civil action heard before Boykin, J., at August Terra, 1895, of Northampton Superior Court on motion lodged at December Term, 1893, to set aside a judgment rendered at August Term, 1893, on the ground of excusable neglect. The motion was granted and plaintiff appealed. The facts appear in the opinion.

Civil action for the recovery of land, heard before Brown, J., by consent of parties, at February Term, 1898, of Craven Superior Court. His Honor rendered judgment for plaintiff and defendant appealed.

Civil action to recover possession of personal property, tried on appeal from a judgment of a Justice of the Peace before Bryan, J., at November Term, 1897, of Halifax Superior Court. The facts appear in the opinion. In this Court the plaintiff moved to dismiss the appeal on the ground that it was prematurely taken.

<p>Contract — Breach of Coniract-*-Damages — Principal and Agent.</p> <p>1. Where one violates his contract, he is liable for such damages as are caused by the breach and such as may reasonably be presumed to have been in the contemplation of the parties when the contract was made.</p> <p>2. If an agent knows, or can by ordinary care ascertain, the purposes for which implements sold by him for his principal are used, his knowledge is the knowledge of his principal.</p> <p>3. The manufacturer who makes and the agent who sells flues for curing tobacco in localities where tobacco is cultivated, must be presumed to know the proper season for cutting and curing tobacco and that, if it is not cut and cured in apt time, serious loss will result.</p> <p>4. Where, in an action for damages, by a tobacco planter against a manufacturer of tobacco flues for breach of contract to deliver to plaintiff on July 1st,tobacco flues for curing plaintiff’s crop, it appeared that the flues were not delivered at that date, and that the defendant wrote on the 15th of July and again on the 27th of July t-hat the flues would he shipped at once, but they were never shipped; Held, that plaintiff can recover for damages to his crop because, in consequence of waiting for the flues, the tobacco was not cut and cured in time and he had to use cast-off flues in bad condition.</p>

Civil ActioN to recover a penalty under Section 711 of The Code, tried before Timberlake, J., on appeal from the judgment of a Justice of the Peace, at June Term, 3 897, of Edgecombe Superior Court. The facts appear in the opinion of the Court. His Honor instructed the jury that, upon all the evidence, the plaintiff was not entitled to recover, and a verdict having been rendered accordingly, judgment was given for the defendant and plaintiff appealed.

Civil action tried before Bryan, J., at November Term, 1897, of Bertie Superior Court.

Civil action for the breach of an alleged warranty contained in a deed from defendant’s intestate to plaintiff’s intestate, tried before Bryan, J., and a jury at Pall Term, 1897, of Bertie Superior Court. There was a verdict for the plaintiff, under the direction of his Honor, and from the judgment thereon defendant appealed.

Civil action heard before Brown, J., at December, 1897, (special) Term of Bertie Superior Court, on motion to dismiss the complaint and dissolve the restraining order theretofore issued. The motion was allowed and plaintiff appealed.

Civil ACTION by the Executor of W. J. Capehart to construe the will of the testator and to obtain advice and directions as to settlement of the estate, heard before Brown., J., at December, 1897, Special Term of Bertie Superior Court. The facts appear in the opinion. His Honor sustained the contentions of the defendants and plaintiffs appealed.

ACTION of claim and delivery, tried before Timber-lake, Ji, and a jury at Spring Term, 1897, of Northampton Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff and from the judgment thereon defendant appealed.

<p>Creditor and Debtor — Debts Secured and Unsecured— Running Account — Application of Payments.</p> <p>1. When there are two or more debts owing by a debtor to a creditor, the former may direct the application of any payment he makes; if he does not do so, the creditor may do so at his pleasure before bringing suit; if neither the creditor or debtor directs the application, the law will make it to the most precarious debt.</p> <p>2. While the rule for the appropriation of payments on running accounts is that the first item on the credit side of the account will be applied to extinguish the first item on the debit side, yet it has no force against an understanding of the parties to the contrary.</p> <p>3. Where M. took a mortgage on W’s. crops to secure advances and thereafter made farther advances under an agreement that the crops should be given to him and first applied to the settlement of the unsecured account, and only a running account was kept covering all the advances and containing the debit and credit items; IIeld, that, when payments from the crops equalled the amount secured by the mortgage, the lien of the latter was not discharged thereby.</p>

Civil ACTION, in the nature of quo warranto, brought by leave of the Attorney General, to test the right of the defendants to sit and act as County Commissioners of Vance County, brought to and tried at the October Term, 1897, of VANCE Superior Court, before Timber-lake, J., and a jury.

Civil action for damages for malicious prosecution, tried before Timherlake, J., and a .jury at September Term, 1897, of Pitt Superior Court. The issues submitted and the responses thereto were as follows: 1st. Did the defendant maliciously and without probable cause procure the arrest and imprisonment of plaintiff as alleged? Ans. yes. 2nd. What damage has the plaintiff sustained thereby?

Civil action for the recovery of land, tried before Timberlake, J., at Fall Term, 1896, of Wilson Superior Court, upon a case agreed as follows: 1st. Lovett Atkinson and wife, Rhoda Atkinson, died intestate in the County of Wilson prior to the year 1872, seized and possessed of one tract of land in the county of Wilson, Spring Hill township, adjoining the lands of James H. Renfrew, Rufus Renfrow and others, containing six hundred acres, more or less. 2d. That said lands…

Civil action heard before Robinson, J,, at March Term, 1897, of Pitt Superior Court, on appeal by the defendant from an order, of the Clerk of the Superior Court of said county, reviving a judgment against the defendant and directing the issue of execution thereon.

Civil action for the recovery of land tried before Timber lake, 1 ‘L. 0. Latham and Harry Skinner, trading as Latham & Skinner, vs. The Greenville Land and Improvement Company.

<p>PETITION to rehear case decided at February Term, 1897, and reported in 120 N. C. R., at page 31.</p>

Petition by defendant for Certiorari as substitute for an appeal in an action pending in Edgecombe Superior Court on the grounds stated in the opinion.

<p>Motion to dismiss exception of defendant to the report oi' appraisers in the allotment of his homestead under execution heard before Timberlahe, J., at December Term, 1897, of Pitt Superior Court. The exceptions were as follows:</p> <p>Objection by judgment debtor to homestead.</p> <p>“W. K. McGowan, the judgment debtor in the above entitled action for his objections to the valuation and allotment of the appraisers, John F. Boyd, B. J. Wilson and J. A. Thigpen made on the 9th of October, 1897, of his homestead exemptions, alleges:</p> <p>‘ ‘1. That he flies herewith a transcript of said return, which he has caused to be made from the original in the hands of the sheriff of Pitt county.</p> <p>“2. That said appraisers did not, as required by Section 503 of The Code, proceed after being sworn to value the homestead with its dwellings and buildings thereon selected by the debtor.</p> <p>“3. That said appraisers gave the undersigned no opportunity to select his homestead after being appointed by the sheriff.</p> <p>“4: That he was not notified by the sheriff or by the said commissioners that they had been selected as the persons to appraise his homestead exemptions, nor was he notified by the sheriff or by either of said appraisers of any time or place of meeting for that purpose, and as a matter of fact he had no knowledge of any such meeting.</p> <p>“5. That said appraisers of their own motion proceeded to make the selection of a homestead exemption for the undersigned without calling on him to make such selections, and in doing so they did not select a tract or parcel of land including the home or dwelling house of the undersigned. On the contrary, they selected a tract of land and appraised it as his homestead on which the undersigned has never lived. The tract or parcel of land selected by the appraisers as the homestead of the undersigned was sold and conveyed by deed for value to L. A. McG-owan on the 25th day of November, 1887, and that she has been in the sole possession, use and occupation of said lands ever since. That the undersigned has no interest whatever in said tract of land, and he therefore objects to having his homestead exemptions set apart to him on lands which he has not owned or occupied for the last ten years. That since the purchase of said lands the said L. A. McGowan has improved said lands, and that without said improvements the said tract of land at the present low Valuation of land is not worth $1000.00.</p> <p>“7. That while he disclaims owning any lands, he alleges, on information and belief, that the plaintiff will seek to show that he is the owner of certain lands conveyed by him to L. A. McGowan since the institution of her action, and that it is the purpose of the sheriff, under instructions from plaintiff’s counsel, to levy upon said lands and sell them as the property of the undersigned. While he alleges that said sales were bona fide and for value, still, if it is the purpose of the plaintiff to treat said lands as the property of the undersigned, he demands that his homestead exemptions shall be laid off on these.”</p> <p>W. K. McGOWAN.</p> <p>The grounds upon which plaintiff moved to dismiss are set out in the opinion.</p> <p>His Honor granted the motion and defendant appealed.</p>

Motion in an existing cause on the part of the purchaser of land sold under decree of Court, to compel the Commissioner to execute a deed, heard before Timberlahe, J., at November Term, 1897, of Wilson Superior Court, The Commissioner, in response to notice, offered affidavits of several persons, which, on being read and examined were considered incompetent, and irrelevant by the Court as to the matter to be heard and then enquired into, and thereupon the order set out in…

Civil action of claim and delivery, tried before Timberlake, J., and a jury at Fall Term, 1897, of Nash Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff, (under the instruc-lions of his Honor) for the crops sought to be recovered, and from the judgment thereon defendant' appealed.

Civil action for damages, tried before Timberlake, J., and a jury at April Term, 1897, of Franklin Superior Court. The issues submitted were: 1. Was the death of the plaintiff’s intestate caused by the negligence of the defendants in selling podo-phyllin? 2. Did the decedent contribute, by her negligence, to her death? 3. What damage, if any, has the plaintiff sustained?

Civil action, heard before Boyhin, J., at April Term, 1896, of Franklin Superior Court. The purpose of the action and facts connected therewith are stated in the judgment of his Honor.

Civil action tried before Robinson, J., at May Term, 1897, of Nance Superior Court on appeal from the refusal by a Justice of the Peace of a motion to set aside a judgment rendered by him and on a motion for a recordari. The facts are sufficiently stated in the opinion. The action of the Justice of the Peace was affirmed and the recordari refused, and defendant appealed.

Civil action tried at November Term, 1897, of Har-nett Superior Court before Robinson, J. There was a judgment for the defendants and the plaintiffs appealed. In this Court, the appellees moved to dismiss the appeal on the ground that the case on appeal was not served in due time.

Summary proceedings in ejectment commenced before a Justice of the Peace and heard on defendant’s appeal before Robinson, J„ at September Term, 1897, of Wayne Superior Court.

Civil action for specific performance of a contract concerning land, tried before Timberlake, J., at January Term, 1898, of Wayhe Superior Court, upon an agreed statement of facts, the substance of 'which is set out in the opinion. There was judgment for the plaintiff and defendant appealed.

<p>Corporation — City Franchise — Water Companies— Bates — Uniformity of Bates — Injunction.</p> <p>1. Where a corporation operates under a franchise by which it enjoys the benefit of the right of eminent domain, it is affected with a public use and must, to the extent of the public interest therein, submit to be controlled by the public.</p> <p>2. While the right of fixing rates is a legislative function it is nevertheless competent for the Courts, certainly in the absence of legislative regulations, to protect the public against the exaction of oppressive and unreasonable charges by a corporation enjoying a municipal franchise.</p> <p>3. The acceptance of a municipal franchise by a water company carries with it the dirty of supplying water to all persons along the lines of its mains without discrimination and at uniform rates.</p> <p>4. While a town has a right to grant a franchise to a water company, and the water company has the power to stipulate that it will not charge in excess of the maximum rates named in the ordinance granting the franchise, yet, if such maximum rates are disciminat-ing or unreasonable, they are not binding upon consumers whom the Courts will protect against unreasonable charges.</p> <p>5. Whore, in the hearing of a motion to dissolve an order restraining a water company from exacting from the plaintiffs rates alleged to be unreasonable and discriminating, the answer admitted that the proposed rates were not uniform but denied that they were unreasonable and oppressive, and the evidence as to the unreasonableness of the «rajes yras not satisfactory, it was not error to continue the injunction to the hearing.</p>

Civil action for an injunction to restrain the issue of bonds by the City of Goldsboro for the establishment of a sewerage system, heard by consent before Adams, J., at Chambers, at Kinston, on the 13th day of May, 1898. The injunction was refused and plaintiff appealed. The facts and the grounds upon which the injunction was asked appear in the opinion.

Civil action brought by plaintiff against the defendant Thompson, as Secretary of State, and A. Williams & Co. to vacate and declare void a certain contract, and for a mandamus to compel said Thompson, as Secretary of State, to furnish to the plaintiff certain Supreme Court Reports and for an injunction, heard before Robinson, J., at July Term, 1897, of Wake Superior Court on a motion to dissolve a restraining power theretofore issued.

Civil action, Hied before Robinson, J., and a jury, at October Term, 1897, of Wake Superior Court. Catharine Nichols, plaintiff’s testatrix, died in September, 1896. Benjamine King, testator of the defendant Arnold, died on the — day of-, 1896. The summons herein was sued out the 21st day of May, 1896.

Civil ACTION tried at April Term, 1897, of Waice County Superior Court, before Adams, J., and a jury. This action was commenced before a Justice of the Peace for the recovery of $12.85. The defendant admitted plaintiff’s account and plead a counter claim for five and five-sixteenths acres of land, sold to A. S. Pollard, plaintiff’s intestate, at $12.50 per acre, and posts 'of the value of $1.75. The plaintiff denies counter-claim for land.

Civil action heard before Robinson, J., at October Term, 1897, of Wake Superior Court, on a motion for judgment upon the ground that the answer was frivolous. The action was brought upon a note executed to plaintiff’s testator by J. N. Holding and endorsed by the defendant Brewer. The answer was as follows: “The defendant, J. B. Brewer, answering the complaint herein, says: 1.

Civil ACTION, tried before Robinson, J., and a jury,, at October Term, 1897, of Wake Superior Court. On the trial it appeared that the defendant’s intestate was the owner of a large, well-wooded tract of land, sixteen miles from his residence, and six miles from the city of Raleigh, where the plaintiff resided.

Special proceeding for the partition of lands, instituted before the Clerk of Wake Superior Court and transferred to Term for trial of the issue of sole seizin raised by certain of the defendants. The case was tried at October Term, 1897, of Wake Superior Court before Robinson, J., and a jury, upon the following issues: 1. Are the plaintiffs owners with the defendants of the land described in the complaint as tenants in common? 2.

<p>Civil ACTION to recover land, tried before Robinson, J., and a jury at October Term, 1897, of Waice Superior Court. The plaintiff claimed under a Sheriff’s deed following an execution sale of the land as the property of H. C. Lashlie. The plaintiff offered the deed in evidence, as also the execution, which was as follows:</p> <p>“Whereas, judgment was rendered on the 10th day of November, 1894, in the Superior Court of Wake County, in an action between B. Liles, Wm. Watts et al, plaintiffs, and J. Rowan Rogers, John Upchurch, James Ennis, J. P. Sorrell, J. D. Pearce, Loftin Harrison, R. B. Ellis and J. W. Pernell, defendants, in favor of said S. Watts, A. B. Marshburn et al, against the defendant, H. C. Lashlie, for the sum of one hundred and eighty-two dollars and twenty cents, as appears to us by the judgment roll, filed in the office of the Clerk of the Superior Court of said county:</p> <p>And whereas, the judgment docket in this county on the 21st day of November, 1894, and the sum of one hundred and eighty-two dollars and ninety cents is due thereon, with interest on same from the first day of October, 1891; and the further sum of seventy-six dollars and ten cents for costs and disbursements in said suit expended, whereof the said H. C. Lashlie is liable.</p> <p>You are therefore commanded to satisfy the said judgment out of the personal property of the said defendant within your county; or, if sufficient personal property cannot be found, then out of the real property in your county belonging to such defendant, &c.</p> <p>\ : The judgment was one rendered on the report of a referee in an action against a defaulting sheriff and his sureties, the amount of the judgment against H. C. Lashlie being for $182.20, and various amounts against the other defendants separately stated.</p> <p>The appraisers summoned by the sheriff had allotted to the defendant, H. 0. Lashlie, as a homestead, a tract of land of 32 acres, valued at $40. No excess was reported. The sheriff, under the direction of the plaintiff, sold the land sued for, which had been conveyed by the defendant H. 'C. Lashlie to his son D. D. Lashlie, at which sale the plaintiff bought. The tract so sold contained 109 acres.</p> <p>The plaintiff tendered the following issues:</p> <p>1. Is the plaintiff the owner of the land described in the complaint ?</p> <p>' 2. Were the defendants in the wrongful posses-si on of the land at the time this action was begun?</p> <p>3. What is the annual rental value of said land ?</p> <p>The defendants tendered the following issues:</p> <p>1. Did the defendant, H. C. Lashlie, convey the land in question with the fraudulent intent to hinder, delay or defeat creditors ?</p> <p>2. Did the defendant, D. D. Lashlie, have a fraudulent intent in accepting said deed ?</p> <p>3. What was the value of the land at the time of conveyance ?</p> <p>4. What amount, if any,.did D. D. Lashlie pay for the land ?</p> <p>It was in evidence that at the time of the issuance of the summons herein the defendant, D. D. Lashlie, was in the possession of the land in controversy; H. 0. Lashlie was living on it also.</p> <p>In the argument on the issues, counsel for defendant insisted that before the rendition of plaintiff’s judgment, H. C. Lashlie, being largely indebted, conveyed the land to his son, D. D. Lashlie, and contended that the issue was to whether said conveyance was in fraud of creditors, the plaintiff being one of his said creditors. The Court did not settle the issues before ordering the non-suit.</p> <p>Upon this evidence the Court non-suited the plaintiff, who excepted and appealed.</p>

<p>Ríen — Trust—Breach of Contract.</p> <p>Where a corporation, in pursuance of an agreement with plaintiff, retained from the wages of its employees the price of supplies furnished to the latter by him and became insolvent and a receiver was appointed before the money was paid to plaintiff; Held that no equitable trust or lien was created or attached to the funds in the hands of the Receiver, the proceeds of collections of book ac- * counts, so as to entitle plaintiff to a preference over other creditors.</p>

Civil ACTION by the State of North Carolina on the relation of M. H. Holt to try the title to the office of director of the North Carolina School for the Deaf and Dumb, heard before Timberlake, J., at February Term, 1898, of Wake Superior Court, on complaint and demurrer. The complaint was as follows: £ ‘The plaintiff complaining of the defendant, alleges: 1.

Civil action by the plaintiff, as Superior Court clerk of Carteret county, to obtain a mandamus directing the State Treasurer to pay certain claims against the State, heard before Robinson, J., at October Term, 1897, of Wake Superior Court.

Civil action by W. H. Worth, as State Treasurer, against defendants, former public printers, to recover money erroneously paid in settlement of incorrect accounts for public printing, heard on complaint and demurrer before Robinson, J., at October Term, 1897, of Wake Superior Court. The substance of the complaint and the grounds of demurrer are set out in the opinion. His Honor overruled the demurrer and defendants appealed.

Civil ACTION by the State on the relation of W. H. Worth, State Treasurer, against M. I. & J. C. Stewart, public printers, and the surety on their bond, heard before Robinson, J., at October Term, 1897, of Wake Superior Court on complaint and demurrer. The demurrer was overruled and defendants appealed. The facts sufficiently appear in the opinion.

Civil action beard on complaint and demurrer, before Allen, J., at April Term, 1897, of Granville Superior Court. The demurrer was overruled and the defendants appealed. The facts appear in the opinion.

Civil action by the plaintiff, as husband, and others, as next of kin, of Amanda Holmes, deceased, to recover the amount of a note executed by the defendant, and to have the amount of the recovery declared a lien upon land, heard before Adams, J., at November Term, 1897, of Granville Superior Court. The facts appear.in the opinion. From an order dismissing the action the plaintiffs appealed .

Civil action tried at April Term, 1897, of Granville Superior Court before Allen, J., and a jury, on appeal from judgment of a Justice of the Peace. There was a verdict followed by judgment for the defendant and plaintiff appealed. The facts are stated in the opinion.

<p>Upon a petition to rehear the case between same parties decided at September Term, 1897, of this Court (121 N. 0., 146 and 690), tip Court deems it proper, under all the circumstances, to order anew trial on the motion of the defendants.</p>

<p>Civil ACTION of claim and delivery tried before Adams, J., and a jury at November Term, 1897, of G-rau-ville Superior Court. The facts appear in the opinion. On the trial the plaintiff’s attorney admitted that the action was to enforce the payment of the sum of $200 due plaintiff for rent, less $35 paid before the commencement of the action. Thereupon, defendants moved to dismiss the action on the ground that the Superior Court did not have original jurisdiction of the same. The motion was allowed and plaintiff appealed.</p>

<p>Civil action to recover damages for the unlawful and wrongful conversion of a stock of goods belonging to plaintiff, brought by the latter against the defendant Cozart, as sheriff, and the other defendants, as makers of an indemnifying bond, and tried before Adams, J., and a jury at November Term, 1897, of G-ranville Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff, and from the judgment thereon the defendants appealed.</p>

Action of claim and delivery, tried before Adams, J., and a jury at August Term, 1897, of Orange Superior Court. There was a verdict for the defendant and from the judgment thereon the plaintiff appealed. The facts appear in the opinion.

Civil action pending in Orange Superior Court and heard before Robinson, J., at Chambers in Durham on 25th January, 1898, on a motion to set aside a judgment which the clerk of the Court assumed to enter therein against the defendants. The motion was allowed and plaintiff appealed.

Civil action to recover land, tried before Adams, J., and a jury at October Term, 1897, of Orange Superior Court. There was a verdict for the defendants and plaintiffs appealed.

Civil action tried before Allen, J., and a jury at May Term, 1897, of Orange Superior Court. The facts appear in the opinion and in the report of the case between the same parties as contained in 116 N. C., 426. There was a verdict followed by a judgment for the defendant and the plaintiff appealed.

Civil action tried before Adams, J., and a jury at November Term, 1897, of Person Superior Court. The facts sufficiently appear in the opinion. There was a verdict, followed by a judgment for the plaintiff, and defendant appealed.

Civil action tried before Adams, J., and a jury at October Term, 1897, of Durham Superior Court. The facts appear in the opinion. From a judgment for the defendant under Chapter 109, Acts of 1897, the plaintiff appealed.

Controversy submitted without action to test the validity of Section 35, Chapter 168, Acts of 1897, and to restrain the defendants from collecting the tax therein imposed, heard before Robinson, J., at January Term, • 18&8, of -Durham Superior Court. His Honor granted the- injunction prayed for and defendants appealed. . '

Civil ACTION tried before Adams, J., at October Term, 1897, of Durham Superior Court. There was a judgment for the defendants, and plaintiff appealed. The facts appear in the opinion.

Civil action tried at June, 1897, Special Term of Durham Superior Court before Timberlnke, J., and a jury. The facts appear in the opinion.

Oiyil action tried' before Mc-Iver, J., and a jury at July, 1897, Special Term of Guilford Superior Court. The facts a,ppear in the opinion. There was a verdict for the defendant, and plaintiff appealed.

<p>Civil action tried before Mclver, J., and a jury at August, 1.891, Special Term of Gtjileord Superior Court. A verdict was rendered for the plaintiff under the circumstances detailed in the opinion, and from the judgment thereon defendants appealed.</p>

Civil action heard on complaint and demurrer before Aclams, J., at December Term, 1897, of Guilford Superior Court. The demurrer was sustained and plaintiff appealed.

<p>Action to Recover Usurious Interest Paid — Usury— Statute of Limitations.</p> <p>1. Where a life insurance- company lent to a borrower a sum of money at the full legal rate of interest, payable monthly, its repayment being- secured by a deed of trust, but also required the borrower to take an endowment policy in said company on his life, the monthly premiums on which for life or a term of years were also secured by the deed of trust. Held, that the contract was usurious.</p> <p>2. Under Section 3886 of The Code (which governs contracts prior to February 21st, 1895, the date of the ratification of Chapter 69, Acts of 1896,) an action to recover twice the amount of usurious interest paid must be brought within two years from the date of the payments of such interest.</p>

Civil action tried before Mclver, J., and a jury at July, 1896, Special Term of Guilford Superior Court. There was a verdict for the defendants, and plaintiff appealed. The facts and grounds of appeal sufficiently appear in the opinion.

Civil ACTION for damages tried before Robinson, J., and a jury at January, 1898, Special Term of Guilford Superior Court. There was a verdict followed by judgment for the plaintiffs and defendant appealed.

Civil action tried before Adams, J., at Fall Term, 1897, of Chatham Superior Court upon exceptions filed by both parties' to a report of a referee. The facts are stated in the opinion. Judgment was rendered for the, plaintiff, awarding him the land and the rental value of the land from the time the defendant, by his unkindness, caused the plaintiff to quit the defendant’s house To this judgment the defendant excepted and appealed.

<p>Deed, Construction of — ■Trusts—Intent of Grantor.</p> <p>1. A trust will not be declared as arising from a conveyance absolute in form, unless the intent of the grantor to create a trust clearly appears on the face of the deed.</p> <p>2. A deed made by J. M. to his son-in-law, W. S. M., recited as follows: “I, J. M., for and in consideration of the sum of §400, as an advancement to his wife, Polly Cornelia, and also for the further sum of §400 in hand paid hy the said W. S. M., do grant, &c., unto the said W. S. M., his heirs and assigns forever,” the land described. Held, that the deed conveyed the land absolutely in fee to the grantee, and no trust can he declared in favor of the wife of W. S. M. or her heirs for one-half of the land.</p>

Civil action tried before Adams, J., and a jury at Fall Term, 1897, of Chatham Superior Court, on appeal from a judgment of a Justice of the Peace. The plaintiff recovered judgment in the Superior Court, and the defendant appealed. The facts are fully stated in the opinion of Associate Justice Montgomery.

Civil action tried before Adams, J., and a jury at Fall Term, 1897, of Chatham Superior Court. The facts appeal' in the opinion. There was á verdict for the plaintiff and from the judgment thereon the defendants appealed.

Civil action heard on complaint and demurrer before Adams, J., at January Term, 1898, of New Hanover Superior Court. The complaint and demurrer are set out in the complaint. His Honor overruled the demurrer and defendant appealed.

Civil action tried before Adams, J., and a jury at January Term, 1898, of New Hanover Superior Court on appeal from a judgment of a Justice of the Peace. At the conclusion of plaintiffs’ evidence the defendants (who had been allowed to introduce some testimony during the hearing of the plaintiffs’ testimony), stated that they demurred to the evidence under the Act of 1897. The plaintiffs contended that defendants were not entitled to the benefit of the Act of 1897.

Civil action to recover delinquent taxes due to the City of Wilmington, instituted 28th August, 1896, and tried before Mclver, J., and a jury at January Term, 1897, of New Hanover Superior Court. The facts are stated in the report of the defendant’s appeal, ante, page 383.

Civil action brought under Chapter 182, Acts of 1895, to recover certain back taxes alleged to be due by the defendant R. C. Stolter on certain property in the City of Wilmington for the years 1891-’92-’93, and tried before Alien, J., at September Term, ¡897, of New Hanover Superior Court, a jury trial being waived. The facts necessary to an understanding of the opinion appear therein. His Honor rendered judgment for the plaintiff and defendants appealed.

This action is a consolidation of two actions, the one brought in New Hanover Superior Court by Holmes & Watters, in behalf of themselves and all other creditors, against the Bank of New Hanover and Junius Davis, to whom the bank had made a deed of assignment, and the other brought in Wake Superior Court by S. McD.

Civil action tried before MeZams, J., at January Term, 1898, of New Hanover Superior Court. There was a judgment for the defendants and plaintiff appealed. In this Court the defendant (appellee) moved to dismiss under Rule 28.

Civil action tried before Adams, J., at January Term, 1898, of New Hanover Superior Court. From a judgment for the defendant the plaintiff appealed. The appeal was not docketed at 10 o’clock a. m. on Tuesday when the call of the calendar of cases from the Sixth district began, hut was docketed at 10:35 a. m. on that day. The appellee thereupon moved to dismiss under Rule 17 for appellant’s failure to docket before the Court began the call of the causes of the district.

■ Civil action tried before Allen, J., and a jury at Fall Term, 189†, of Sampson Superior Court. A jury trial was had upon certain exceptions to a referee’s report, and, after a verdict on the issues, the cause was recommitted to the referee to have the report conformed to the verdict. From the order re-referring the case the defendant appealed.

Civil action tried before Robinson, J., at Term of Pender. Superior Court. From a judgment for the plaintiff the defendants appealed, and in this Court moved for a writ of certiorari to bring up the record and case on appeal.

<p>Practice — Appeal—Noting Exceptions — Jurisdiction— Justice of the Peace — Process of Justice of the Peace, Against Non-Resident Defendants — Judgment.</p> <p>1. No appeal lies from an order of the Superior Court overruling a motion to dismiss an appeal from a judgment of a Justice of the Peace. An exception should he noted to the refusal of the motion, which would he considered on an appeal from the final judgment.</p> <p>2. The question of jurisdiction may be raised at any time and in any Court where a case is pending; hence, a motion to dismiss an appeal from a judgment of a Justice of the Peace, based on a lack of proper service of process, maybe made at any time in the Superior Court since it raises a question of jurisdiction.</p> <p>8. Where a Justice of the Peace has not obtained jurisdiction of the party by reason of non-service of process in a matter of which he has exclusive original jurisdiction, the Superior Court cannot on appeal obtain jurisdiction by ordering a summons to issue to bring the party before it.</p> <p>4. As the officers of one county are not authorized to serve process in another county, the process provided for in Section 871 of The Code must be issued or addressed to the officers of the county where it is to be served.</p> <p>5. A summons improperly issued by a Justice of the Peace and improperly served does not bring a defendant into Court and a judgment rendered against such defendant is void,</p> <p>tí. A judgment rendered by a Justice of the Peace against a non-resident defendant, on whom process was not served at least ten days before the return day, is void.</p>

Civil ACTION for a mandamus pending in DtjpliN Superior Court and heard before Adams, J., at chambers at Clinton, N. 0., in February, 1898. Held: revoked and rescinded the license granted on the 3d day of May, 1897, and the resolution of the board of May 3d, 1897, and tendered to the plaintiff the license fee paid thereunder, which he refused to receive, and at the same time passed a resolution requesting the defendant Board of Commissioners not to grant license to the…

Civil action for an injunction pending in the Superior Court of G-eeene county and heard before Allen, J., at chambers in Kinston, N. C., on 19th November, 1897. By consent, his Honor reserved his decision until the 4th. day of December, 1897; when further argument was heard iu the cause.

Civil action to enjoin a sale under mortgage and for an accounting, usury being alleged, heard before Allen, *J., at August Term, 1897 of G-reene Superior Court, on exceptions to the report of a referee to whom the case had been referred under The Code. The facts sufficiently appear in the opinion. From a judgment overruling the plaintiff’s exceptions, the plaintiff appealed.

Civil action for mandamus heard before Mclver, J., at Fall Term, 1897, of Brunswick Superior Court. Upon the facts found by his Honor (which are set out in the opinion of Chief Justice Faircloth) he denied the application for the mandamus and plaintiff appealed.

Civil agtioh tried before Mclver, /., at December Term, 1897.

<p>Civil action tried before Coble, J., and a jury at May Term, 1897, of Robeson Superior Court. The facts are stated in the opinion. Upon the verdict his Honor rendered judgment for the defendants, dismissing the action, and plaintiffs appealed.</p>

Civil action pending in Robeson Superior Court and heard on complaint and affidavits before Allen, J., at chambers in Lumberton during February Term, 1898, of that court. The facts are stated in the opinion. From an order dissolving the temporary injunction theretofore issued, the plaintiffs appealed.

, at Fall Term, 1897, of Robeson Superior Court. At the same time the feme defendant moved to set aside the judgment as to her. His Honor affirmed the order of the clerk, and denied the motion to set aside the judgment. The feme defendant then appealed.

Civil ACTION heard before Mclver, J.. at December Term, 1897, of Robeson Superior Court on a motion to vacate an attachment. The motion was allowed and plaintiff appealed. The facts appear in. the opinion.

Proceeding for a mandamus and injunction in Cumberland Superior Court, brought on the 13th day of August, 1897, by summons returnable at Chambers at Carthage, N. 0., before Mclver, J. The facts appear in the opinion. On the hearing the defendants entered a special appearance and moved to dismiss the proceeding in so far as it demanded an injunction for the reason that there was no sufficient summons.

OrviL action brought and pending in Cumberland Superior Court to enjoin the Dispensary Board of Cumberland county from establishing and maintaining the dispensary authorized by Chapter 235, Acts of 1897, and to enjoin the defendant County Commissioners from paying out any county funds or pledging the credit of the county for the support of such dispensary and from engaging in the sale of liquor under said Act, and to have said Act declared unconstitutional.

Civil action to set aside a sale made by defendant Slocomb under a power of sale contained in a mortgage made by W. F. Carter and wife to said Slocomb, and a deed made thereunder by defendant Slocomb to defendant, Daniel Carter, the purchaser at said sale, and to require the said deed to be delivered up and canceled, and for’ the possession of the land described in said deed, upon the payment by plaintiff of the balance due upon said mortgage, tried before Mclver, J., and a…

Civil action brought before a Justice of the Peace to recover $186.65, and heard, on appeal, before Coble, J.,at April Term, 1897, of Cumberland Superior Court. By consent, his Honor found the facts and upon them rendered judgment for the defendants, and plaintiff appealed.

<p>Action for Damages — Justice of the Peace — Jurisdiction — Constitutionality of Statute.</p> <p>1. The General Assembly has power under Section 12 of Article IV to apportion out the judicial power and jurisdiction below the Supreme Court as it deems fit, except when to do so conflicts with other provisions of the Constitution.</p> <p>2. The provision in Section 27, Article IV of the Constitution, authorizing the General Assembly to give to Justices of the Peace “ jurisdiction of other civil actions wherein the property in controversy does not exceed fifty dollars,” is not a restriction, even by implication, to forbid conferring jurisdiction where damage and not property, is in controversy.</p> <p>8. Section 888 of The Code authorizing action for “damages” not exceeding fifty dollars to property, though the property be of greater value, does not contravene Section 27 of Article IV of the Constitution, and is authorized by Section 12 of said Article.</p> <p>4. A Justice of the Peace has jurisdiction of an action for damages not exceeding fifty dollars for injury to personal property, though such property be of greater value than fifty dollars.</p> <p>Faircloth, C. J., and Montgomery, J., dissent.</p>

<p>Action of Quo Warranto — Public Officer — County Commissioner — County Board of Education — Forfeiture of Office by Accepting Another.</p> <p>1. The County Board of Education it a public ofliee.</p> <p>2. A citizen and tax payer of a County is eniitled to bring an action in the nature of quo warranto to try the right of a person to hold two offices in such County at the same time.</p> <p>3. Under Section 7, Art XIV of the Constitutian, one person cannot hold the office of County Commissioner and also be a member of the County Board of Education.</p> <p>4. The question of holding two public offices at the same time does not depend, as at common law, upon the incompatibility of the two offices alone but upon the positive language of the Constitution forbidding it.</p> <p>5. The acceptance of a second office by one already holding a public office operates ipso facto to vacate the first. While the officer has a right to elect which of the two he will retain, his election is deemed to be made when he accepts and qualifies for the second.</p>

Civil action tried before Starbuck, J., anda jury at Fall Term, 1896, of Anson Superior Court. The facts appear in the opinion. Both plaintiffs and defendant .appealed.

Civil ACTION tried before Goble, J., and-a jury at Fall Term, 1897, of Yadkin Superior Court. There was a verdict for the defendant, and from the judgment thereon plaintiff appealed. The facts are sufficiently stated in the opinion.

Civil action to recover land, tried before Goble, J., and a jury at Pali Term, 1897, of Iredell Superior Court. The facts are stated in the opinion. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Civil ACTION to recover from the administrator of J. E. Van Pelt proceeds of land sold by his intestate, and to have the other defendants, heirs at law of J. F. Van Pelt, declared trustees of other lands alleged to have been bought with money belonging to the ancestor of plaintiffs (wife of J. F. Van Pelt), and conveyed to J. F. Van Pelt in violation of his promise to have the conveyance made to her, tried before Goble, /., and a jury at Fall Term, 1897, of Iredell Superior…

Civil action tried before Coble, J., and a jury at Fall Term, 1897, of Ibedbll Superior Court. The plaintiff alleged in her complaint that the intestate of defendant, while in his last sickness, gave her all the furniture and other property in his dwelling house as a gift causa mortis.

<p>Action to Foreclose Mortgage — Witness—Competency•—■ Evidence — Transaction with Deceased Person — Note — Payment — Evidence — Presumptive Evidence — Mortgage — Administrator.</p> <p>1. In the trial of an action to foreclose a mortgage which a deceased administrator had, during his lifetime, assigned to plaintiff as security for his note given in settlement of the balance due from him as administrator, the testimony of defendant that, after the execution of the mortgage, the administrator had agreed to take the mortgaged land in fee and defendant’s note for a small amount in settlement of the note secured by the mortgage, was incompetent under Section 590 of The Code.</p> <p>2. While the unexplained possession of a note by the maker is presumptive evidence of its payment, yet, where there was no claim of payment, except under an agreement that was inoperative, the rejection of the note as evidence of its payment was harmless error.</p> <p>3. A conveyance of land which provides for are conveyance to the grantor, if the latter shall within a certain time pay to the grantee the consideration named in the instrument, is a mortgage.</p> <p>4. A mortgage cannot, by any stipulation between the parties thereto, be changed to an absolute deed. “Once a mortgage, always a mortgage.”</p> <p>5. An administrator has no right to take land in payment of a debt due to the estate.</p> <p>6. A debtor 'to a trustee has no right to pay the trust debt by a conveyance of land to such trustee.</p> <p>7. In an action on a note and a mortgage assigned as security for such note, it was error to render judgment against the security for more than was due on the principal debt.</p>

<p>Contract, Construction of — Question for Court — Partial New Trial.</p> <p>1. Where a contract is clear and certain in its terms and meaning, and there is no latent ambiguity necessitating proof of a custom to interpret its meaning, its construction is for the Court and not for ' the jury.</p> <p>2. Where a contract between a mining company and a smelting company provided that the latter was to smelt ore for the former at §10 per ton and to pay to the former 95 per cent, of the silver produced, and by another clause it was provided that the 95 per cent, of silver “ produced from the ore as aforesaid” should hot be demanded until a certain time; and on the trial of an action for money due the mining company under the contract, the plaintiff mining company contended that the ores were to be paid for at their assay value according to a custom among smelters, and not on the basis of the silver produced by the smelting process; Reid, that the contract was not ambiguous in its terms, and, therefore, should be construed by the Court, and it was error to submit to the jury the question whether the alleged custom existed among smelters.</p> <p>3. Where, in the trial of an action in which several issues have been submitted and responded to, an erroneous instruction was given upon one issue entirely distinct and separable from the other issues and matters involved in the case, and a new trial canbe had upon such issue alone without danger of complication, the new trial will be confined to such issue.</p>

Civil ACTION to recover land, tried before Mclver, J., at February Term, 1898, of Rowan Superior Court. The facts appear in the opinion. At the conclusion of the plaintiff’s testimony the defendants moved to dismiss the complaint and for judgment as of non-suit, under Hinsdale’s Act. The motion was allowed, and plaintiff appealed.

Civil action to recover land tried before Starbuck, J., and a jury at Fall Term, 1897, of Stokes Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff and from the judgment thereon the defendant appealed.

Civil action tried before Greene, J., and a jury at Spring Term, 1897, of Surry Superior Court, on a note executed by the feme defendant M. P. McNichol, and endorsed by Lucius Tilley. On the trial the issues submitted were as follows : “Is the defendant, Lucius Tilley, indebted to the plaintiffs?

<p>Deed Absolute on Face — Security for Loan — Mortgage —Trusts—Extinguishment.</p> <p>[For Syllabus see 120 N. 0. R.,-362.]</p>

Civil action tried before StarbucJc, J., and a jury at December Term 1897, of Forsyth Superior Court, on appeal from a judgment of a Justice of the Peace. There was a verdict for the plaintiffs and from the judgment thereon the defendant appealed.

<p>Civil aotioh tried before Starbuck, J., at December Term, 1897, of Forsyth Superior Court on appeal from a Justice of the Peace.</p> <p>The parties agreed upon the following as the facts in the case and submitted the same to the Court for judgment thereupon:</p> <p>“ That on December 1st, 1896, the Defendant borrowed from the plaintiff, the sum of fifty dollars, and promised to pay the same on demand. That demand was duly made, and that no part of said sum has been paid.</p> <p>“That defendant was, and is a married woman, and came to North Carolina from her native home in Assyria 1 years ago, and has never become a naturalized citizen of the United States.</p> <p>“That her husband is an alien and has always lived in Assyria.</p> <p>“ That defendant has received letters from her husband in which he expressed the intention of coming to this country to live at some indefinite time in the future. ”</p> <p>Upon the foregoing facts, the Court, being of the opinion that defendant had capacity to contract as a feme sole, rendered judgment for the plaintiff and defendant appealed.</p>

<p>Action to Recover Money Paid Through Mistake — Voluntary Payment.</p> <p>1. A voluntary payment, with knowledge of the facts, under a mistake as to the law, cannot he recovered'hack.</p> <p>2. When a bank charged a customer’s account with the amount of a matured note endorsed by him and protested for non-payment, and subsequently, with full knowledge of the facts, repaid the amount, no action will lie by the bank for the recovery of the amount so paid.</p>

Civil ACTION tried before StarbucJc, «7., at January, 1898, Special Term of Forsyth Superior Court on complaint and answer. His Honor rendered judgment for the plaintiff, and defendants appealed. The nature of the action and the contentions of the parties sufficiently appear in the opinion. The instrument by which the charge was made upon the separate estate of the feme defendant was as follows : “State oe North Carolina, Forsyth County.

Civil action tried before Greene, J., and a jury at Eall Term, 1897, of Caldwell Superior Court. The facts are sufficiently stated in the opinion. There was a verdict followed by judgment for the plaintiff, and defendant appealed.

Civil action in the nature of a creditor’s bill against the defendant, an insolvent corporation, heard before Greene, J., at August Term, 1897, of Mitchell Superior Court. The facts appear in the opinion. From the judgment rendered O. B. Deming, one of the creditors, appealed.

<p>Action to Recover Land — Trial — Evidence—Tracing Title — Deed—Exceptions %n Deed — Deed Absolute in Form as Security for Debt — Fraudulent Conveyance —Registration— Execution — Docketing Judgment— Collateral Attack.</p> <p>1. Where, in an action to recover land, the parties claimed .title from a common source and on appeal the assertion of such title by the defendants was adjudged invalid, such adjudication does not set them free, in a subsequent trial of the action, to assert a superior title in some one else with whom they do not connect themselves.</p> <p>2. Where,in an action to recover land within the boundaries of plaintiff’s deed, the defendant claims the same under exceptions in such deed, it is incumbent on the defendant to bring himself within the exceptions by proof.</p> <p>3. While payment of taxes is some evidence of title, it is unavailing in the trial of an action to recover land when the party offering it has not connected himself with any outstanding title or shown adverse possession of the land for the requisite time.</p> <p>4. A deed absolute on its face, but intended as a security for a debt, is void as against the creditors of the grantor.</p> <p>5. Where, in the trial of an action to recover land, the plaintiffs contended that a deed under which the defendants claimed, although absolute on its face, was really a mere security for a debt, and therefore void, an unregistered deed of defeasance and bonds secured thereby produced by the defendants in pursuance of an order of Court, under Sections 578 and 1373 of The Code, were competent as evidence tending to show the nature of the transaction, without proof of their execution.</p> <p>6. The probate of a deed of a corporation by the acknowledgment of individuals instead of by its officers, is fatally defective and its registration, in consequence, is a nullity.</p> <p>7. Where the probate and registration of a deed under which defendants claim,in an action to recover land, were defective, a reprobate and reregistration after the plaintiffs’ title accrued, and after the institution of the action, can have no effect (Conner’s Act, Section 1, Chapter 147, Acts of 1885).</p> <p>8. The proceedings under a voidable execution cannot be collaterally attacked.</p> <p>9. The docketing of a judgment is not an essential condition of its efficacy, except for the purpose of giving a lien, nor a condition precedent to issuing an execution thereon to the Sheriff of the County where it was rendered or to any other count}"-.</p> <p>10. The requirement in Section 448 of The Code that the date of docketing the judgment should be stated in the execution is directory.</p> <p>11. A recital, in an additional paragraph in an execution issued to B county, of a levy on certain personal property in C County (where the judgment was rendered) and an order to the Sheriff of the former County to sell it (although an attachment against such personal property had been vacated) was a clerical error which did not invalidate the other part of the execution, and strangers to the execution cannot complain of such recital.</p>

Petition by plaintiff to rehear the case between same parties decided at September Term, 1897, of this Court and reported in 121 N. C. Reports at page 366.

<p>Action to Restrain Waste — Tenants in Common— Injunction.</p> <p>1. The right to sue for waste includes the right to restrain its commission.</p> <p>2. Under Section 627 of The Code providing that one tenant in common may maintain an action for waste against his co-tenant or joint tenant, tenants in common may maintain an action to restrain waste by their co-tenant.</p>

<p>Civil action tried before Starhuch, J., at March Term, 1898, of Burke Superior Court, on an agreed statement of facts, the material parts of which are stated in the opinion. From a judgment refusing to allow the plaintiff, the G-eneral Electric Company, a priority over the mortgage debts of the defendant Company, the said plaintiff appealed.</p>

<p>Municipal Corporation — Municipal Bonds, Prerequisites to Issue — Power to Levy Tax Implied in Power to Issue — Constitutional Law — Statute, Defective Passage of.</p> <p>1. When a municipal corporation, by a valid Act of the General Assembly and an affirmative vote of approval by a majority of its qualified voters, has acquired the right to create a debt and issue bonds therefor (Section 14, Article II of the Constitution), such authority carries with it the power to levy the taxes necessary to pay such bonds and the accruing interest thereon. (Reasons for former decision in same case, 120 N. C., 411, overruled).</p> <p>2. Section 7 of Article VII, forbidding a municipal corporation to levy any taxes except for necessary expenses, unless by the approval of a majority of the qualified voters therein, does not require that the power to levy a tax shall be expressly granted in a legislative Act authorizing the creation of a debt and the issuing of bonds therefor and the submission of the same to the vote of the qualified voters. (Reasons for former decision in same case, 120 N. O., 411, overruled).</p> <p>3. That part of Section 7 of Article VII of the Constitution, forbidding the levy of any taxes by a municipal corporation except for necessary expenses, unless by a vote of the majority of the qualified voters, if intended to have any separate and independent meaning, applies only to such indebtedness as has not been submitted to a vote of the people.</p> <p>4. Chapter 256, Private Acts of 1891, not having been passed with the formalities required by Section 14 of Article II of the Constitution, is void, and confers no authority upon the city of Charlotte to create the debt and issue the bonds therein provided for.</p>

civil action commenced in the Superior Court of Rutherford county on the 26th day of March, 1898, heard before Greene, J., holding the courts of the 11th Judicial District at Chambers in Lincoln ton, North Carolina, on the 8th day of April, 1898. His Honor rendered judgment denying the motion for injunction, dissolving the temporary restraining order and taxing the plaintiff with costs of the motion.

Civil action tried before Nonvood, J., and a jury at Spring Term, 1897, of Cleveland Superior Court. There was a verdict for the plaintiff and defendant appealed. The facts sufficiently appear in the opinion.

Civil action, heard before Hohe, J., and a jury at Fall Term, 1897, of Polk Superior Court, on appeal from a judgment of a Justice of the Peace. The facts appear in the opinion. There was a verdict for the plaintiff and from the judgment thereon the defendant appealed.

<p>Action for Money Loaned — Note—Endorser—Partnership.</p> <p>Where one endorsed a note at the request of a member of a firm for the purpose of obtaining money for the use of the firm, and the proceeds were so used, the endorser, upon payment of the note, can recover therefor against the firm, though no member of such firm signed the note.</p>

<p>Civil action tried, before Nonoood, J., and a jury at March Terra, 1897, of Mecklenburg- Superior Court, for the recovery of a lot in the town of Huntersville.</p> <p>The facts are sufficiently stated in the opinion. There was a verdict for defendants, and from the judgment thereon the plaintiffs appealed.</p>

<p>Civil action tried before Greene, J., anda jury at January, 1897 Term of Mecklenburg Superior Court. The facts appear in the opinion. The plaintiff appealed.</p>

<p>Chattel Mortgage — ■Description—Construction of Deed —Mistake—Evidence.</p> <p>1. Where a chattel mortgage conveyed all the property in the “room or rooms known as the ‘B. Hotel Bar’ or the ‘B. Hotel Billiard Iioom’ and the ‘B. Hotel Barbershop’,” it cannot he construed to include liquors from which the bar was supplied but which were in a cellar on a different floor from and unconnected by door or otherwise with the bar-room, billiard room and barbershop. Such description was not ambiguous and should not have been submitted to the jury.</p> <p>2. The fact that, on the morning on which a chattel mortgage was executed, the mortgagor promised to include certain property is not evidence that it was omitted from the mortgage through the mutual mistake of the parties or the inádvertance of the draughtsman.</p>

Civil ACTION brought before a Clerk of the Superior Court of Gaston county by the.-plaintiffs as heirs of Robert Carson to have the dower of his widow, the defendant Sarah Jane Carson, allotted in the lands described in the complaint, and transferred to and tried before Greene, J., at February Term, 1898, of GrASTON Superior Court, upon an agreed statement of facts set out substantially in the opinion..

Civil action tried before a Justice of the Peace, from whose judgment there was an appeal to the ¡Superior Court of BUNCOMBE county. The Criminal Circuit Court of Buncombe, Madison, Haywood and Henderson counties assumed jurisdiction, and the case was tried before Eiuaxt, J., and a jury at June Term, 1897, of said Circuit Court for Buncombe county. There was a verdict for the plaintiff, which the defendant moved to set aside upon the ground that the court had no jurisdiction.

<p>Mandamus — Jurisdiction—Superior Court— Circuit Criminal Court — Constitutional Lato.</p> <p>1. Under the Statutes of this State the Superior Court alone has jurisdiction of mandamus proceedings.</p> <p>2. While the General Assembly may, under the provisions of Section 12, Article IV, of the Constitution, give to any circuit court, or any other court it may erect, original jurisdiction, either exclusive or concurrent with the Superior Court of all matters, civil as well as criminal, arising in the county or counties for which such court is established, subject to the right of appeal therefrom to the superior court created by the Constitution provided, as to concurrent matters such inferior Court first acquires jurisdiction, yet it cannot emasculate the Superior Courts by transferring the concurrent jurisdiction of cases, which have originated and are pending in them, downwards to the circuit or other inferior courts.</p> <p>8. Section 2 of Chapter 6, Acts of 1897, providing that the Judge of Criminal Circuit Court for Buncombe, Madison, Henderson and Haywood Counties, in addition to the existing criminal jurisdiction, “shall have also, as to all civil business originating and pending in said counties, or either of them, concurrent, equal jurisdiction, power and authority with the judges of the Superior Courts to be exercised at chambers or elsewhere in said counties, in all respects as the judges of the Superior Courts have such power, jurisdiction and authority,” is unconstitutional for the reason that, instead of being an allotment and distribution of a portion of the jurisdiction of the Superior Courts provided for in Section 12 of Article IV of the Constitution, it is, pro tanto, an abolition of the Superior Courts.</p> <p>4. The Judge of the Criminal Circuit Court of Buncombe, Madison, Henderson and Haywood Counties has no jurisdiction of a proceeding in mandamus under Section 2, Chapter 6, Acts of 1897, although the case was entitled in and the summons issued from the Superior Court but made returnable before such Criminal Circuit Judge.</p>

Civil aoriON, tried before Timberlake, J., and a jury at July, 1897, Special Term of Buncombe Superior Court. There was a verdict for the plaintiff and from judgment thereon the defendants appealed.

Civil action tried before Timberlake, J., and a jury at July Special Term, 1897, of Buncombe Superior Court. There was a verdict for the defendant and from the judgment thereon the,plaintiffs appealed. The facts appear in the opinion.

Civil action tried before Norwood, J., and a jury at August Term, 1897 of Buncombe Superior Court. The plaintiffs, claimed to have been endamaged to the extent of $658 by the negligence of the defendant in not keeping in proper condition a cold-storage room in which plaintiffs stored grapes for hire.

Civil aotioh for damages for an injury caused the plaintiff by the alleged negligence of defendants, and the unsafe and defective condition of a “mangle,” at which plaintiff was employed to work, tried before Timberlake, J., and a jury at July, 1897, Special Term of Buncombe Superior Court. The testimony was as follows : The plaintiff testified : • “I have lived in Asheville for five years. Am 14 years old now, and was 13 when niy hand was hurt.

Civil action heaid before Norwood, J., at August Term, 1897, of Buncombe ¡Superior Court. The uature of the aetiou and contentious of the parties are stated in the opinion. Upon hearing the pleadings and argument of counsel, his Honor expressed the opinion that the plaintiff could not maintain his action and thereupon the plaintiff submitted to a non-suit and appealed.

OrviL ACTION tried at July, 1887, Special Term of Buncombe Superior Court before Timberlake, J. When the case was called for trial and after the jury had been empanelled, his Honor, on motion of the plaintiff, rendered judgment on the pleadings and defendants appealed. The facts are stated in the opinion.

Civil action tried, before Timberlake, J., and a jury at Special (July) Term, 1891, of the Superior Court of Buncombe county. The purpose of the action was to have a deed of assignment made by H. C. Davidson, as surviving partner of Davidson & Sherrill, to William Y. Porter, set aside and declared null and void for the reasons hereinafter stated. It was admitted on the trial: 1.

Civil action pending in Buncombe Superior Court and heard on complaint, answer and affidavits before Hoke, J., at Chambers in Asheville during March Term, 1898, of Buncombe Superior Court, on a motion to dissolve the restraining order theretofore issued. His Honor, after hearing the affidavits and argument of counsel, rendered the following judgment: “On the affidavits and exhibits in the cause the Court doth find and declare : That Rev. Wm.

Civil ACTION commenced before a Justice of the Peace and tried before Timber! alce-, J., and a jury, at July, 1897, Special Term of Buncombe Superior Court. The facts appear in the opinion. Judgment was rendered for the plaintiff against W. 0. Wolfe but refused as to the feme defendant and plaintiff appealed.

<p>Private Act of General Assembly — Judicial Potvers— Constitutional Law — Invalid Statute.</p> <p>1. The propriety of ordering sales of iands upon petition of the owners is purely a judicial duty.</p> <p>2. A private act of the General Assembly (Ch. 152, Acts of 1897) in order' to “disentangle and unfetter the title” to certain lands which had been devised to “G. for life, remainder to her surviving children and those representing the interest of any that may die leaving children,” and which lands this Court had decided (90 N. 0., 625) could not be sold until the death of the life tenant, enacted that the lands should be sold by a Commissioner named in the Act and the proceeds invested for the purposes of the will. Held, that such enactment was void, being an attempted exercise of judicial Xiower by the Legislature and an infringement ux>on Section 8, Article I. of the Constitution which provides that “the Legislative, Executive and Judicial powers of the government ought to be forever separate and distinct from each other.”</p>

Civil actios tried before Norwood, J., and a jury at August Term, 1897, of Buscombe Superior Court. The facts appear in the opinion. There was judgment for the plaintiff, and the defendant appealed.

<p>Civil action heard before Brown, J., at March Term, 1897, of Buncombe Superior Court on a motion (after notice to show cause, &c.), for judgment against J. A. Gwaltney and another, for the balance due on notes given by them for the purchase of land at a judicial sale.</p> <p>The defendants made answer substantially as set out in the opinion, and at the hearing the defendant Gwalt-ney requested the Court to make an order directing that the Southern Railway Company and the Western Carolina Railroad Company be made parties to the proceeding, upon the ground that the said companies claimed to own the land in question, and evidence was brought to the attention of the Court to show the claim of the railroad companies, but his Honor declined to order the companies to be brought in as parties. The defendant, G-waltney, then requested issues to be submitted as follows :</p> <p>1. Is the Western North Carolina Railroad Company the owner of any part of the land bid for by the defendant, and, if so, what part?</p> <p>2. What is the value of the part owned by the said railroad company?</p> <p>3. What is the value of that part not owned by said railroad company?</p> <p>5. Did the commissioners appointed to sell the land in question offer to sell the purchaser a good title?</p> <p>6. Did the purchaser, Gwaltney, bid for and buy said land under the impression that he would get a good title?</p> <p>At the close of the evidence, his Honor withdrew the issues from the jury, saying that no title or right in the railroad company had been shown, and gave judgment for the plaintiff, from which the defendant, Gwaltney, appealed.</p>

Civil action, tried before Timberlake, Jand a jury at July, 1897, Special Term of Buncombe Superior Court. The facts appear in the opinion. There was a verdict followed by a judgment for the defendants and plaintiff appealed.

Civil action tried at August Term, 1897, of Buncombe Superior Court, before Norwood, J., and a jury. The action was brought by the plaintiff (under Chapter 6, Acts of 1893) as the owner, by purchase under foreclosure of a mortgage, of certain lands for which the defendant held a deed from the tax collector. The facts sufficiently appear in the opinion. There was a verdict for the plaintiff on the issues submitted and from the judgment thereon the defendant appealed.

Civil actiost tried before Nonvood, J., and a jury on exceptions to the report of referee, at August Term, 1897, of BUNCOMBE Superior Court. The facts appear in the opinion. From a judgment for the plaintiff the defendants appealed.

Petition by intervenors to rehear the case decided at February Term, 1897, and reported in 120 N. C., at page 475. A former appeal in same case is reported in 116 N. 0., at page 827.

Civil action tried at Fall Term, 1897, of Madison Superior Court, before Norwood, J. Prom a judgment for the defendant the plaintiff appealed. The record on appeal does not contain the complaint. In this court the defendant (appellee) moved to dismiss.

Civil action, tried before Norwood, J., and a jury, at Fall Term, 1897, of Madison Superior Court. The facts appear in the opinion. There was a verdict for the defendant and from the judgment thereon the plaintiff appealed.

Civil action tried before Brown, J., and a jury at Spring Term, 1897, of Madison Superior Court. The facts appear in the opinion. There was a verdict for the defendant and from the judgment thereon the plaintiff appealed.

<p>Action for Recovery of Land — Specific Performance— Statute of Frauds — Parol Contract.</p> <p>1. A parol contract for the conveyance of land being void under the Statute of Frauds, no evidence relating to it, if denied, is admissible.</p> <p>2. Where the plaintiff in an action for the recovery of land shows title, and the defence is inadmissible, he is entitled to judgment.</p> <p>3. Where, in an action for the recovery of land, the defendant seeks the enforcement of a parol contract by which plaintiff was to convey the land (on which defendant had made improvements), in consideration of the defendant’s obtaining the conveyance to plaintiff of another tract of land, which defendant had done, the Court should allow such amendments of the pleadings as to admit all proper evidence concerning the agreement, to the end that the mutual equities may be enforced.</p> <p>4. The rule that one who contracts to sell land, and receives the consideration and refuses to convey for any reason, cannot keep both the land and the money, applies to feme coverts; and while a Court cannot compel a married woman to execute and acknowledge a deed as of her own free will, it can declare the price paid to be an ' equitable lien on the land in favor of the other party, so that if she keeps the land she must pay the amount of the lien.</p>

Motion by the defendants in an action pending in Transylvania Superior Court, for an injunction restraining the plaintiffs from collecting certain costs which the plaintiffs claimed they had a right to collect under a former judgment rendered in this_ cause, and a counter motion on the part of the plaintiffs to dissolve a restraining order which had been previously granted on the defendant’s motion.

Oivtl action for conversion of personal property, tried before Robinson, J., and a Jury, at August Special Term, 1897, of Swain Superior Court. From a judgment for the plaintiff the defendants appealed. The record on appeal, as well as that below, shows that the jury answered the second issue “No,” while the judgment recited that the second issue was answered “Yes.”

Civil action tried before Norwood, J., at Fall Term, 1897, of Swain Superior Court. The facts appear in the opinion. The defendants demurred ore terms and his Honor sustained the demurrer and dismissed the action. Plaintiff appealed.

Civil action tried before Robinson, J., and a jury at August Special Term, 1897, of Swain County Superior Court. The action was brought in May, 1895, and. was for the recovery of the surn of $1,006.95, due as a balance for goods and merchandise purchased by the defendant from the plaintiff in 1889.

Civil ACTION tried before Norwood, J., and a jury at Eall Term, 1897, of Oheroicee Superior Court. The facts appear in the opinion. There was a judgment for the plaintiff and the defendant appealed.

Civil action tried before Norwood, J., and a jury at Eall Term, 1897, of Oheroicee Superior Court. The facts are stated in the opinion. Prom a judgment for plaintiff, the defendant appealed.

Civil action heard before Norwood, J., at Fall Term, 1897, of Ohekokee Superior Court, on a motion made by the defendant, who entered a special appearance for the purpose, to dismiss the action upon the ground stated in the opinion. The motion was denied and defendant appealed.

Civil actior heard before Norwood, J., at Fall Term, 1897, of Cherokee Superior Court, on a motion to dismiss an action in which service of process was made upon the defendant while temporarily in this State in attendance upon Court as a witness. The motion was refused and defendant appealed.

<p>Practice — Removal of Causes — Time of Application— Diverse Citizenship — Separable Controversy.</p> <p>1. A petition to remove a cause pending in a State Court was filed by the defendant and the order of removal made on 16th August, the order was filed in the office of the Superior Court of the County where the action was pending on the 18th August, and on August 26th the notice of appeal was served on the petitioner for removal, and on August 80th the case on appeal was served; Held, that the appeal was perfected in due time.</p> <p>2. The provision of the Act of Congress regulating removals of causes from the State to the Federal Courts (25 U. S. Statutes, 436) to the effect that a petition for removal must be filed at or before the time defendant is required to plead “by the rules of the State Courts,” applies only to the general rules of the State Courts, and not to a special order allowing additional time to plead in a particular case.</p> <p>3. Where an order was made on the motion of one party allowing both parties additional time in which to file pleadings, and no exception was made by the other party, the order is binding on both.</p> <p>4. The requirement that a petition for removal of a cause from the Federal to the State Court must be filed before the defendant is required to plead by the rules of the State Court is imperative, and the time cannot be extended by stipulation of the parties.</p> <p>5. An action in the nature of a creditors’ bill to wind up the affairs of a corporation, to administer its assets among its creditors according to their respective rights, to establish a joint and several liability for its debts on the part of another corporation which sustained toward it the relation of a partner, and to sell land in which it is stated that both corporations have equitable interests as well as those persons represented by the defendant trustees, is but a single and inseparable controversy, and although one of the corporations is a non-resident it cannot have the cause removed to a Federal Court on the ground of diverse citizenship.</p> <p>6. Where, in an action in the nature of a creditors’ bill, complete relief could not have been granted without the presence of all the defendants, even if plaintiff had elected to split up the action and sue one of defendant corporations for-its assumption of the debt of the insolvent defendant corporation, the action is not separable so as to allow a removal to the Federal Court on the ground of diversity of citizenship of the first named corporation.</p>

<p>Action for Damages — Dentist•—Malpractice—Professional Skill — Negligence—Contributory Negligence— Trial — Instructions—Damages.</p> <p>1. Where, in the trial of an action against a dentist for damages for injuries resulting from malpractice, the defendant asked a witness whether, if the patient, after receiving treatment, should be directed to return in a week, and should fail to do so, it would be the duty of the dentist to seek the patient; Held, that the questions were properly excluded as being too general and not pertinent to any material issue in the case.</p> <p>2. If error is committed in excluding questions propounded to a witness on a trial, it may be cured by subsequently giving an instruction prayed for by the party asking the questions and relating to the matters covered by them.</p> <p>3. In the trial of an action against a dentist for malpractice, an instruction that “if the defendant did not, at the time of treating the plaintiff, possess the learning and skill ordinarily possessed by members of the dental profession, and, by improper treatment, the plaintiff was injured, the defendant would be liable for the damage sustained,” was not erroneous.</p> <p>4. The degree of learning and skill which a physician and surgeon holds himself out to possess, and which he will be held to apply in his profession, is that degree which is ordinarily possessed by the profession as it exists at the time of his practice, and not as it may have existed at some time in the past.</p> <p>5. On the trial of an action against a dentist for malpractice, an instruction that, if the defendant did possess the learning and skill which ordinarily characterize his profession, and failed to exercise it in serving the plaintiff, and plaintiff was thereby injured, the defendant would be liable for the injuries sustained, was not erroneous.</p> <p>6. A jury in fixing the damages in the trial of an action for injuries resulting from the malpractice of a dentist, may take into consideration the injury to the plaintiff, such as the pain suffered by the plaintiff, loss of time, loss of teeth and increased delay in effecting a cure, and the probability of permanent injury necessarily consequent upon the injury sustained by the maltreatment.</p> <p>7. The care and skill required of a dentist, while not necessarily the highest known to his profession, cannot he limited to such as is exercised by dentists in his neighborhood, but must be such as is ordinarily possessed and practiced by the average of his profession.</p> <p>8. Where the liability of a dentist for malpractice is established, the fact that the patient, after such malpractice, disobeyed the orders of the dentist, and so aggravated the injury, does not discharge the latter’s liability.’</p>

Civil action tried before Brown, J., at Spring Term, 1897, of Haywood Superior Court. The action was brought to recover $1,205.00, the alleged balance of the purchase price of a large boundary of land contracted to be bought by the defendant at so much per acre, the number of acres to be ascertained by an accurate survey.

Civil action pending in Haywood Superior Court and heard before Hoke, J., at Chambees in Asheville on 22rd March, 1898. The nature of the action and the essential facts appear in the opinion. It being admitted that the defendants had on the first Monday of June, 1897, levied taxes for general State and county purposes up to the Constitutional limit, his Honor denied the plaintiff’s application for a mandamus and plaintiff appealed.

Civil action to recover damages for entering and cutting timber upon plaintiff’s land, tried before Brown, J., at Fall Term, 1897, of Washington Superior Court upon admissions of the parties, a jury trial being waived. The facts appear in the opinion. His Honor being of opinion that plaintiff could not recover so adjudged and plaintiff appealed.

<p>Action for Damages — Permanent Injury to Land by Construction of Railroad — Statute of Limitations.</p> <p>1. Before the Act of 1895 (Chapter 224) a railroad cbuld acquire the prescriptive right to pond water on adjacent lands only by subjecting itself to an action for the injury continuously for twenty years. <</p> <p>2. Chapter 224, Acts of 1895, reducing the time for bringing action against a railroad company for permanent injury to land, caused by the construction or repair of defendant’s road, to five years, does not apply to a suit begun before its passage.</p>

. MOTION by defendant to set aside a judgment by default and enquiry, heard on affidavit before Brown, J., at December, 1897, Special Term, of Bertie Superior Court. The judgment sought to be set aside was rendered at November Term, 1897, of said Court.

Civil ACTION for damages for injuries resulting in the death of plaintiff’s intestate, tried before Timberldke, J., and a jury, at May Term, 1897, of Halifax Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff for $5000 and defendant appealed.

Civil action for damages for personal injuries, tried before Bryan, J., and a jury at August Term, 1897, of Northampton Superior Court. The facts sufficiently appear in the opinion. There was a verdict of $1,200. for the plaintiff, and- from the judgment thereon the defendant appealed.

Proceedings begun before the Clerk of the Superior Court of Johnston county for the assessment of damages for right of way under the defendant’s charter, and transferred to Term and heard before Bobinson, J., at November Term, 1891, of said Court. A jury trial was waived, and his Honor rendered judgment forthe.de-fendant on an agreed statement of facts, which are summarized in the opinion. The plaintiffs appealed.

<p>Civil action tried, before Adams, J., and a jury at Fall Term, 1897, of Johnston Superior Court. The afcts appear in the opinion. There was a verdict for the plaintiff for $2,000, and from the judgment thereon the defendant appealed.</p>

Petition by C. T. Pate and. other citizens of the State living near Purvis, on the Wilson & Fayetteville Branch of the Wilmington & Weldon Railroad Company, filed with the Railroad Commission, asking that an order be made requiring the defendant to establish a railroad station, with freight, express and telegraph office at Purvis.

Civil action tried before Robinson, J., and a jury at October Term, 1-89T, of Wake Superior Court. The facts appear in the opinion. Prom the judgment of non-suit entered on motion of the defendant under Chapter 109, Acts of 1897, the plaintiff appealed.

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

Civil ACTION for damages tried before Mclver, J., and a jury at August Term, 1897, of Guilford Superior Court. The facts are stated in the opinion. After all the evidence liad been offered and argument had commenced, his Honor stated that he would charge the jury that the plaintiff, on his own testimony, could not recover; whereupon the plaintiff; submitted to a non-suit and appealed.

Civil ACTION tried before Robinson, J., and a jury at January, 1898, Special Term of Guilford Superior Court. The facts appear in the opinion. Upon the close of the evidence the defendant moved to dismiss the action and upon an intimation from his Honor that the plaintiff could not recover, the plaintiff submitted to a non-suit and appealed.

Civil actioít tried before Adams, J., and a jury at October Term, 1897, of Caswell Superior Court. (For report of former appeal in same case see 120 N. C., 508.) The issues submitted and the responses thereto were as follows : “1. Was the plaintiff injured by the negligence of defendant?” Ans. “Yes.” “2. Did the plaintiff, by his own negligence, contribute to his injury ?” Ans. “No.” “8.

Civil action for damages for personal injuries to plaintiff, tried before Allen, J., anda jury at March Term, 1897, of Durham Superior Court. There was a verdict for the plaintiff who was awarded $20,000 as damages and from the judgment thereon defendant appealed. The defendant company is and was at the time of the injury to the plaintiff, leased to and operated by the Southern Railway Company.

<p>Action for Damages for Breach of Contract — Compromise Judgment — Injuries-to Real Estate — Variance— Venue.</p> <p>1. An error as to the venue of an action is not now, as formerly, a defect affecting jurisdiction hut only ground for a motion to remove which is waived unless the motion is made '‘in writing” and “before the time for answering expires.”</p> <p>2. In an action for breach of a compromise judgment entered in an action ' for damages to real estate in one county, there can be no recovery for damages to a different tract of land lying in an adjoining county which was not within the contemplation of the parties when the compromise was made.</p>

Civil action tried before Coble, J., and a jury at Spring Term, 1897, of Anson Superior Court. The plaintiff was injured while working on a trestle for the defendant company. On the trial the plaintiff was asked whether he was “careful” while at work on the trestle and under objection was allowed to answer that he was. The jury rendered a verdict for the plaintiff assessing his damages at $5,000 and from the judgment thereon the defendant appealed.

Civil action for damages pending in Rowan Superior Court. From an order denying the defendant’s petition for a removal of the cause to the Circuit Court of the United States, the defendant appealed. The facts in relation to the filing of the petition appear in the opinion.

Civil action for damages tried at February Term, 1898, of Rowan Superior Court, before Mclver, J., and a jury. The material facts appearing from the plaintiff’s testimony are set out in the opinion. At the conclusion of the plaintiff’s evidence, his Honor granted the defendant’s motion to dismiss the action, as upon judgment of non-suit, under Chapter 209, Acts of 1891, and plaintiff appealed.

Civil action for damages for injuries resulting in the death of plaintiff’s intestate, a brakeman on defendant company’s train, tried before Starbuck, J., and a jury at February Term, 1897, of Rowan Superior Court. The necessary facts appear in the opinion. Under an intimation from his Honor that he could not recover, the plaintiff submitted to a non-suit and appealed.

<p>Action for Damages — Master and Servant — Injury to Employee — Negligence—Evidence—Instructions—Fel-loio-Servant.</p> <p>1. The collision of two passenger trains in the day time and on the same track and with terrific force, is in itself evidence of negligence— res ipsa loquitur.</p> <p>2. Where the evidence on a trial is essentially conflicting it is not error to refuse to charge that, if the jury believe the evidence, they should find for the party making the request.</p> <p>3. An instruction charging the jury that, if they believed the evidence, they should find certain evidential facts to be true and that thereupon, certain other facts must be true, was properly refused as it is beyond the power of the Court to express an opinion on the evidence. (Section 413 of The Code.)</p> <p>4. Where, in the trial of an action for damages for injuries to the plaintiff, an engineer of a train, resulting from the alleged negligence of the defendant company, the jury found that the plaintiff did not contribute to his own hurt, it was immaterial under the act abolishing the doctrine of “fellow-servant.” Chapter 56, (Private) Acts of 1897, which servant of the defendant was guilty of the negligence.</p> <p>5. A lessor railroad company is liable for the negligent acts of its lessee while operating its own trains over the leased track.</p>

Civil action for damages for an assault upon the plaintiff, while a passenger on the Cape Fear and Yad-kin Valley Railroad, by the servants and agents of the defendant, who is Receiver of the company, tried before Starbuck, J., at Fall Term, 1897, of Rockingham Superior Court. The facts appear in the opinion. There was a verdict for the plaintiff fixing the damages at $500 and from the judgment thereon the defendant appealed.

Civil action to recover damages for the negligent killing of the plaintiff’s intestate, tried before Hoke, J., and a jury at Spring Term, 1897, of McDowell Superior Court. Among many other exceptions taken on the trial, the defendant excepted to the admission of evidence as to the number and ages of the children of the deceased and to the instruction of his Honor in relation to the measure of damages.

Civil action for damages tried before Greene, J., and a jury at Pall Term, 1897, of McDowell Superior Court. The plaintiff, through the alleged negligence of the defendant company, his employer, was injured while coupling freight cars by hand at Asheville and suffered the loss of an arm. The cars were not equipped with self-couplers. The facts are fully stated in the dissenting opinion of Associate Justice Purches.

Civil action for damages tried before Mclver, J., and a jury at January Term, 1898, of Cabarrus Superior Court. The facts appear in the opinion. At the close of the plaintiff’s testimony his Honor allowed the defendant’s motion to dismiss the action under the Act of 1897, and plaintiff appealed.

Oiyil action tried before Oreene, J., and a jury at January Term, 1898, of Mecklenburg Superior Court. There was a verdict for the plaintiff who was awarded $750 damages for the negligent killing of her intestate and husband who was a brakeman on defendant’s road. Defendant appealed.

Civil action tried before Holce, J., and a jury at October, 1897, Term of Mecklenburg Superior Court, for damages for injuries alleged to have been caused by the negligence of defendant. The facts sufficient appear in the opinion. The jury found all issues in favor of the defendant and from the judgment rendered the plaintiff appealed.

<p>Petition to Rehear — Action for Damages — Railroads— Injury to Person on 'Track — Continuing Negligence— Contributory Negligence..</p> <p>1. While, at a time or in a place of increased risk of accident to a person rightfully on a railroad track, there is required of him an increased degree of care to avoid an accident, there is required of the railroad a proportionately greater degree of care in managing its train at such time and place than at others.</p> <p>2. Where, in the trial of an action for damages for injuries caused by the alleged negligence of defendant railroad company, it appeared that, a street in Charlotte was entirely occupied by the tracks of the defendant and of the Seaboard Air Line, the spaces between which were frequently used by pedestrians ; and that, on a dark night and for his own convenience, the plaintiff was walking on one of the Seaboard tracks, and, seeing an engine just in front of him, he stepped on the defendant’s track and was struck by a train moving backwards on the track, and although he saw the train he could not tell -whether it was moving or not, as he saw no signal lights on the train and heard no ringing of a signal bell, Held, that it was not error to refuse an instruction that, if the jury believed plaintiff would have heen safe, if, after stepping from the Seaboard track, he had stepped in the space between it and defendant’s track, he was guilty of contributory negligence by getting upon defendant’s track. (Overruling former decision in same case, 120 N. 0., 551.)</p> <p>Haircloth, C. J., and Clark, J., dissenting.</p>

Civil action to recover a balance due to the plaintiffs from the defendant railroad corporation and to enforce a contractor’s lien, pending in Catawba Superior Court and tried before Greene, J., by consent, at Chambers, on the 2nd of January, 1898, on exceptions to the report of Mr. W. D. Turner, to whom the action had been referred. The facts can be gathered from tíre opinion.

Civil action tried before Tmberlake, J., and a jury at July, 1897, Special Term of Buncombe Superior Court. The facts appear in the opinion. There was a judgment of non-suit and plaintiff appealed.

Civil action for damages tried at July, 1897, Special Term of Buncombe Superior Court before Timberlahe, J., and a jury. The facts appear in the opinion. His Honor instructed the jury that the plaintiff was entitled to only actual damages to which the plaintiff excepted.

Civil ACTION for damages for the alleged negligent killing of plaintiff’s intestate by the Southern Railway Company, the lessee of the defendant railroad company, tried before G-reene, J., and a jury at January Term, 1898, of MeckleNburg Superior Court. The defendant filed affidavits in support of a motion to remove the trial of the action to another county on account of local prejudice. No counter affidavits were filed. The motion was refused and defendant excepted.

<p>Petition to rehear the case between same parties decided at September, 1897, Term of this Court, and reported in 121 N. 0. R., at page 519.</p>

Indictment for murder tried before Brown, J., and a jury at Fall Term, 1897, of Hertford Superior Court. The defendants were convicted of murder in the second degree and appealed. The facts appear in the opinion.

<p>Ikdictment for rape tried at the Fall Term, 1897, of Beaufort Superior Court before Brown, J., and a jury. The facts necessary to an understanding of the opinion are stated therein. (The report of a former appeal in same case is contained in 121 N. C., at page 533). The defendant was found guilty and appealed from the judgment of the court sentencing him to be hanged.</p>

Proceeding in bastardy heard before Bryan, J., at Fall Term, 1897, of Bertie Superior Court on appeal from a judgment of a Justice of the Peace adjudging the defendant to be not guilty. His Honor being of the opinion that no appeal, under the law, accrued to the prosecutrix or to the State, dismissed the action at the cost of the prosecutrix, who appealed.

Indictment for assault with intent to commit rape tried before Timberhike, J, and a jury, at Fall Term, 1897, of Nash Superior Court.

Proceeding in bastardy tried before Bryan, J., and a jury at January Term, 189S, of Franklin Superior Court, on appeal by the defendant from the judgment of a Justice of the Peace. The defendant pleaded not guilty and contended that the prosecution was barred by lapse of time, the Superior Court having held that a proceeding in bastardy is a criminal action. It appeared from the evidence that more than two years, but not three years, had elapsed since the birth of the child.

Proceeding- ia bastardy heard before Bryan, J., at February Term, 1898, of Vance Superior Court on appeal by the prosecutrix, from a judgment of a Justice of the Peace acquitting the defendant. His Honor dismissed the appeal and the State appealed to this court. The facts appear in the opinion.

Proceeding in bastardy heard before Robinson, J., at September Term, 1897, of Wake Superior Court. The facts appear in the opinion. The warrant was quashed and the State appealed.

Prosecution for bastardy tried before Bobinson, ./., and a jury at September Term, 1897, of Wake Superior Court, on appeal from a judgment of F. M. Ferrell, Justice of the Peace, directing the defendant to pay a fine, &c. The defendant pleaded “once in jeopardy, former judgment and not guilty,” all of which issues were tried together by consent. The State put in evidence the written oath of the prosecutrix and rested and did not subsequently introduce any other evidence.

Indictment for perjury tried before Robinson, J., and a jury at September, 1897, Term of Wake Superior Court. The defendant was convicted and sentenced for three years to hard labor on the public roads of Wake County, and appealed from the refusal of a motion for a new •trial, assigning as error the refusal of a prayer for instruction to the jury that there was a fatal variarice between the allegation and proof.

<p>Indictment for unlawful discrimination in the transportation of passengers by a railroad company, tried before Timberlake, J., at March Term, 1898, of Wake Superior Court. The facts appear in the opinion.</p>

<p> Indictment for Unjust Discrimination in Railroad Rates —Free Passes. </p> <p>(For syllabus see State v. Southern Railway Company, ante.)</p>

Indictment for rape, alleged to have been committed upon one Lou Oole, tried before Mclver, J., and a jury at September Term, 1896, of Chatham Superior Court. In the progress of the trial, George Cole, a witness for the State and the husband of the prosecutrix, was asked by the solicitor whether or not the prosecutrix, on her return home immediately after the rape was alleged to have been committed upon her, made complaint to him and told him what had occurred.

Indictment for a criminal offence tried before Sutton, J., and a jury at July Term, 1897, of New Hanover, Superior Court. The defendant was convicted and appealed direct to this Court.

Indictment for forcible trespass, tried before Allen, J., and a jury at September Term, 1891, of Pender Superior Court. The facts are stated in the opinion. The defendants were convicted and appealed.

INDICTMENT for forgery tried before Mclver, J., and a jury at January Term, 1898, of Cabarrus Superior Court.

<p>Indictment for murder tried before Hoke, J., and a jury at June, 1897, Special Term of Caldwell Superior Court. The defendant was convicted of murder in the first degree and appealed. The facts are stated fully in the opinion of Furches, J., and in the dissenting opinion of Clark, J.</p>

Civil action for the violation of the ordinance of the town of King’s Mountain, tried before Hoke, J., and a jury at Fall Term, 1897, of Cleveland Superior Court, on appeal from a judgment of the Mayor of said town.

IndictmeNT for assault and battery before Greene, J., at January Term, 1898, of Union Superior Court. The defendant was acquitted by the jury.

<p>Courts — Superior and Inferior Coitrts — Appeal—Jurisdiction — Constitidional Law.</p> <p>1. Appeals can come to this Court only through the Superior Courts; and, hence, Section 5 of Ch. 75, Acts of 1895, providing that appeals lie from a Circuit Criminal Court, established by that Act, direct to this Court is in derogation of the constitutional provisions in regard to the Superior Courts.</p> <p>2. Where an appeal is improvidently taken from an inferior Court direct to this Court, it will .be dismissed and the appellant will be remitted to his right to certim'ari from the Superior Court and to an appeal from the latter if said appeal becomes necessary and desirable.</p>