Volume 123 — North Carolina Reports

Petition for dower instituted before the Clerk of the Superior Court of Camden County and transferred to the Court at Term for the trial of an issue of fact involving the widow’s right to dower, tried before Norwood, J., at Spring Term, 1898. His Honor intimated, that upon the showing made the petitioner could not recover — thereupon she excepted, submitted to a non-suit, and appealed. STATEMENT.

Civil action to set aside a judicial sale of land, and for a re-sale, tried before Norwood, J, at Spring Term, 1898, of Hertford Superior Court. W. P. Jenkins died in July, 1886, leaving a will in which two of his sons, W. W. Jenkins and P. C. Jenkins, were named executors, and who qualified on 21st July, 1886.

This was a civil action heard before Norwood, J., at Spring Term, 1898, of the Superior Court of Dare County. The plaintiff moved for judgment upon his verified complaint, filed on the first day of the Term. The defendant did not appear, and was not represented by any one, and upon the last call of the appearance docket, as the Court had finished its other business and was ready to adjourn the plaintiff moved for judgment upon said complaint.

Civil action for trespass, involving title, tried before Timberlake, J., at July Special Term,[1898, of Pasquo-tank County. The plaintiff in deducing his title introduced a deed of trust from H. 0. Harris and wife to John A. Harris, trustee, who died before making sale of the land. Plaintiff then offered in evidence the Record of Proceeding of the Superior Court purporting to appoint F. Vaughan, trustee, in place of John A. Harris, deceased.

<p>Promissory Note — Endorser— Judgment — Merger.</p> <p>1. An endorser oí a promissory note is liable, as surety, without demand upon the maker, or notice of dishonor. The Code, Section 50.</p> <p>2. Where judgment is rendered against the maker, the note as to him is merged in the judgment — not so as to the sureties, when not made parties, their liability to the holder still exists. The Code, Section 186.</p> <p>3. When the evidence is conflicting upon the matter of credits to which a note may be entitled, it is error to charge, that if the jury believe the evidence, to find the amount of the recovery at the face of the notes with interest.</p>

<p>Civil action brought by H. T. Greenleaf and others, tax-payers of Pasquotank County, to enjoin the defendants from accepting a bridge over Knob’s Creek and making the maintenance thereof a county charge.</p> <p>The bridge in question is a part' of a private road owned by E. E. Lamb, which leads to his ferry over Pasquotank river several miles from the bridge and for the use of which ferry tolls are charged. The bridge was erected by Lamb, and Knob Creek being a navigable stream, it is necessary to maintain a draw in the bridge for the passage of vessels. The bridge was dedicated by Lamb to the county upon condition that its maintenance become a county charge.</p> <p>The complaint alleges that there was no public road leading to or branching from the ferry road to any other public road in the county; that the acceptance of the bridge as a county charge will impose upon the taxpayers an unnecessary burden; that the bridge is-not necessary for the convenience of the public, and would serve no purpose to any one save the owner of the ferry; that several years ago in an action to enjoin the acceptance of this same bridge by the county, the matter was arbitrated and an award made against the county.</p> <p>The answer, while controverting some of the allegations of the complaint, insisted that by the Constitution and by statute law the board of county commissioners were invested with discretionary powers over the domestic administrative affairs of the county, including roads, bridges, &c., and denies that their action is re viewable by the courts; and it is contended that the former adjudication upon an arbitration and award in 1887 works no estoppel upon the present defendant hoard of county commissioners.</p> <p>There was an order to show cause granted, by Nor-wood, J., at Chambers in Elizabeth City on May 14, 1898, which came on to be heard at July Term, 1898, of the Superior Court of Pasquotank County, before Tim-berlahe, J., upon affidavits on both sides. His Honor directed the continuance of the restraining order, heretofore granted, until the final hearing — from which ruling the defendant board of county commissioners appealed to the Supreme Court.</p>

<p>Motion for New Trial — Deed—Undue Influence — Tax Lists — Administration—Acc<>unts.</p> <p>1. Mere irregularities occurring on the trial below for which the Judge in his discretion might set aside the verdict, not sufficient ground to support a motion here for a new trial.</p> <p>2. While the insolvency of an assignee and the fact of his having been many years in the employment of the principal party secured would be no evidence of fraud on his part in procuring the execution of a deed, when he was not present when the deed was made, yet coupled with the fact that he afterwards refused to allow the guardian of the children of the deceased maker to see his books, accounts of sales and vouchers — they would all be circumstances for the consideration of the jury upon the issue of fraud.</p> <p>3. While tax lists are not competent evidence to show the value of land, the valuation being made by third parties not examined as witnesses, yet they are evidence against the parties listing personal property. , ' “</p> <p>4. An administrator, who alter many years, still has funds in hand belonging to the estate, is liable to an account.</p> <p>5. A party who seeks benefit from one side of an account kept by himself cannot object to the other side of the account being considered by the'jury.</p>

Civil action for the recovery of land, tried before Timberlake, J., at June Term, 1897, of Edgecombe Superior Court. Both parties derived title from a common source, Benjamin Batts, who devised his land to his two sons, D. B. Batts and I. E. Batts, between whom it was divided by decree of the Superior Court in a proceeding for partition. About a year after the decree, the two brothers, by parol, agreed upon a change in the dividing line.

, at Fall Term, 1897, of the Supeiior Court of Craven County. The plaintiff sued for the sum of $171.85 for goods ■sold and delivered. The defendant denied the allegations of the complaint and set up “a further defence and counterclaim” that he had paid $33 on plaintiff’s account and that he had shipped to the plaintiff to be repaired and returned, instruments worth $166.16, which plaintiff had never returned.

, at June Term, 1898, of the Superior Court of Edge-combe County. Held: in this case Pender v. Mallett, 122 N. C., 163. On June 7th, 1898, the time fixed for proceeding with the examination of defendants, they appeared before the Clerk, and Mrs. S. Mallett moves to dismiss the proceedings among other grounds, because the order for the examination provided for its being taken after answer filed.

Petition to rehear case determined at September Term, 1897, reported in 121 N. 0., 326, where the facts are stated.

<p>Warranty of Title in Deed — Ouster—Defeat of Title.</p> <p>1. Two things necessary to support an action upon a covenant of warranty of title, viz: failure of title and ouster of possession, actual or constructive.</p> <p>2. A covenant of seizen is broken upon the execution of the deed, where there is a defect of title.</p>

Civil action tried before Brown, J., and a jury at Spring Term, 1898, of Superior Court of Bertie County. The complaint was that the' defendant, when it constructed its road-hed across Long Pond pocosin and Flat pocosin, wrongfully and negligently diverted some part of the waters of those pocosins from their natural course and drainway, and turned them into Wartom Swamp and overflowed and permanently damaged plaintiff’s land.

<p>Civil action to recover land, tried before Norwood, J., at May Term, 1898, of the Superior Court of Halifax County.</p> <p>The plaintiff read in evidence a deed, of which the following is a copy:</p> <p>State of North Carolina, . {</p> <p>Halifax County. )</p> <p>Whereas, at a sale of real estate for the non-payment of taxes, made in the county aforesaid, on the 4th day of May, A. D. 1896, the following described real estate was sold, to-wit, (describing it).</p> <p>And whereas, the same not having been redeemed from such sale, and it appearing that the holder of the certificate of purchase of said real estate has complied with the laws of North Carolina necessary to entitle him to a deed of said real estate. Now, therefore, know ye, that we, W. W. Rosser, former tax collector for Brinkleyv-ille township, Halifax county, North Carolina, who made said sale, and J. H. Norman, the present tax collector for said township and county, and the successor in office of said Rosser, in consideration of the premises, and by virtue of the statutes of North Carolina in such cases provided, do hereby grant and convey unto Willis A. Wilcox, his heirs and assigns forever, the said real estate hereinbefore described, subject, however, to any redemption provided by law.</p> <p>Given under our hands and seals this 5th day of May, Anno Domini 1897.</p> <p>W. W. ROSSER, [seal] Former Tax Collector.</p> <p>J. H. NORMAN, [seal]</p> <p> Tax Collector. </p> <p>It appeared in evidence that the land had been bid in for the county — the sale certificate was made to the county and assigned to the plaintiff. The Oourt instructed the jury, that upon the evidence the plaintiff was entitled to recover.</p> <p>The defendant excepted.</p> <p>Verdict and judgment for the plaintiff, and the defendant appealed.</p>

Civil action heard before Norwood, J., at May-Term, 1898, of Halifax Superior Court, upon exceptions to report of referee. The Smith-Courtney Company had furnished Fenner Bros, certain articles of machinery under a contract as claimed by them of renting or hiring- — payments to be made monthly and to be concluded in six months. If paid in full in that time, the title to pass, if not, the renting to be terminated at the option of the company.

Civil ACTiON'for foreclosure of mortgage, tried before Norwood, J., at Spring Term, 1898, of the Superior Court of Halifax County. Action commenced 10th December, 1891. The complaint asked for a foreclosure of a land mortgage executed by defendants, Curtin and wife, and no other relief. The Brownings were included as defendants, as claiming some interest in the land. W. R. Curtin and wife had made four mortgages on the land of different dates. 9 Nov., 1880 1.

<p>Demurrer — Appeal.</p> <p>Ho appeal lies from a refusal of the trial judge to hold a demurrer frivolous.</p>

Civil ACTION, in the nature of a bill in equity, heard upon demurrer by Brown, J., at a Superior Court of Edgecombe County, April Term, 1898. A decree is asked declaring null and void, as to the debt of plaintiffs, a judgment confessed by the Central Tobacco Warehouse Company in favor of the Pamlico Insurance and Banking Company, and for other relief, upon grounds set forth in the opinion filed.

ACTION for damages for false imprisonment tried before Brown, J., at February Term, 1898, of the Superior Court of Craven County.

Civil ACTION for seduction of plaintiff’s daughter, heard on demurrer by Brown, J., at May Term, 1898, of the Superior Court of Craven County. Previous to filing the complaint, on plaintiff’s motion for the appointment of next friend, made before the Clerk, it was adjudged that Mrs. Elizabeth Abbott be and she is hereby appointed next friend of Thomas H. Abbott to conduct for him this action in.this court against Robert Hancock — signed by the Clerk.

Civil action for recovery of amount of insurance upon the life of A. H. Powell, deceased, heard by Brown, J., upon agreed facts at February Term, 1898, of the Superior Court of Craven. A. B. Powell, the insured, and defendant, T. W. Dewey, were equal partners in a general life and fire insurance business in Newbern, N. C. No capital was invested and neither was indebted to the other. Each gave personal attention to the business of the firm.

Supplemental proceedings prosecuted by the plaintiffs, judgment creditors of the defendant, their insolvent debtor, to subject his interest in his deceased wife’s estate, in the hands of her administrator, M. C. Bras-well.

<p>This case from Edgecombe County is governed by the decision in Mahoney v. Stewart, at this Term, from Nash County.</p>

Issue of devisavit vel non tried before Bryan, /., and a jury at Spring Term, 1898, of Nash Superior Court in a proceeding to set up and prove the last will and testament of Nancy Evans, deceased, alleged to have been destroyed after her death in 1895. The alleged copy of the alleged will of 1882 propounded in the Probate Court is as follows: Item 1. To my daughter, Fannie Enroughty, Í give one feather bed. 2.

Civil actios heard before Bryan, J., at Spring Term, 1898, of Nash Superior Court to recover damages for personal injuries received by him from the breaking down of a County Bridge, on demurrer. Demurrers filed and sustained. Plaintiff appealed; pending the appeal plaintiff died. Motion to make his administrator party plaintiff. Motion denied. The Code, Section 1491.

Civil ACTION tried before Bryan, J., and a jury at May Term, 1898, of the Superior Court of VANCE County. The complaint alleges, that on July 12, 1897, at a foreclosure sale, under a deed of trust, of the lands of H. F. Plummer and wife, the plaintiff became the purchaser of a 500-acre tract and thereafter within a very short time, by oral agreement, rented the land to said H. F. Plummer for the remainder of the year 1897 for one-fourth of the crops.

<p>Motior to dismiss under Rule 17 in the Supreme Court; motion allowed.</p>

ActioN to recover land, tried before Robinson, J., at October Term, 1897, of the Superior Court of Wake County. The plaintiff claimed title under the heirs of one James S. Purefoy. The defendants claimed title through the appointment of certain persons (now dead) named in a deed dated January 1, 1850, from said James S. Purefoy, as trustees of the Forestville Female Academy (an unincorporated institution) and their successors.

<p>Parties■ — Petition to Rehear Granted.</p> <p>Where it appears that other parties are necessary to a final determination of the action, this Court will remand the cause to the end that such interested parties may be brought in.</p>

<p>Civil action for damages tried before Timberlake, J., at April Term, 1898, of the Superior Court of Wake County.</p> <p>Damages were claimed by the plaintiff, Maggie E. Lyne, wife of Gregory Lyne, deceased, for negligence in the delivery of a message informing her of the critical condition of her husband from an accident resulting in his death.</p> <p>The circumstances are fully stated in the opinion.</p> <p>There was a verdict and judgment for plaintiff. Exceptions and appeal by defendant.</p>

Civil action for the price of land, tried before’ Tim-berlake, J., at April Term, 1898, of Wayne Superior Court. The plaintiff contracted to sell the land to the defendant, tendered him a fee simple deed and demanded the price agreed. The defendant refused to pay the price and take the deed, contending that the title which plaintiff had acquired only amounted to a life estate.

Action for divorce pending in Superior Court of Wake County and heard before Bryan, J., at Chambers, September 26, 1898, upon application by plaintiff for. an injunction order to restrain defendant husband from interfering with her separate property or from collecting her rents. Application refused. Plaintiff appealed.

Civil actior for foreclosure, receiver, and injunctive relief, heard before Timberlake, J., at February Term, 1898, of Wake Superior Court. The action was converted into a Creditor’s Bill and various persons holding claims against the defendant corporation made themselves parties plaintiffs and filed complaints in the cause, which was referred by order of Court to A. C. Zollicoffer, Esq., as Referee.

<p>Wills — Buie in Shelly’s Case.</p> <p>Executory trusts do not come within the operation of the rule in Shelly's case.</p>

ACTION to enforce penalty for sale of fertilizers without having the tags required by law affixed to the bags, heard before Timberlake, J., at March Term, 1898, of Wake Superior Court. Motion to file amended complaint. Motion allowed. Defendant excepted and appealed.

Civil action to recover loss by fire upon Policies issued by the Fire Insurance Cos., defendants, tried before Coble, J., and a jury at Spring Term, 1898, of Guilford Superior Court. The attempt to adjust the loss by appraisal having failed, the plaintiff instituted this action, embracing all the Companies in one action so as to apportion the damages among them. The following issues were submitted : 1.

Civil action upon a money demand tried before Adams, J., at Fall Term, 1897, of the Superior Court of Person County. The defendant pleaded set-off, which, was excluded by the Court. Defendant excepted and appealed from the judgment rendered. The nature of the set-off appears in the opinion.

<p>Civil action to recover land tried before Robinson, J., at February Term, 1898, of Chatham Superior Court.</p> <p>The plaintiffs complained that the absolute deed under which the defendant held the land from their deceased father, Daniel S. Watkins, with the attendant circumstances, was in fact a mortgage and that it was satisfied.</p> <p>His Honor held it to be a mortgage and the jury found there was nothing due on it. Judgment for plaintiff. Appeal by defendant.</p> <p>Statement of facts are contained in the opinion.</p>

Civil action to recover land, tried before Robinson, The plaintiff claimed to be the owner of the land, and alleges that the deed from himself to the defendant had never been delivered, but was surreptitiously obtained by the defendant from plaintiff’s wife.

<p>Civil action to recover land, tried before Robinson, J., at April Term, 1898, of the Superior Court of Person County.</p> <p>The plaintiff, Lucy Baird, widow of Thos. A Baird, claimed, a life estate in the land under the will of William Baird, father of her husband, dated in 1856. Her marriage occurred prior to 1860 and the title of her husband under the same will vested prior to 1860. His interest was sold during his life time at sale in bankruptcy, and purchased by defendants, who claim under the assignee’s deed. ,</p> <p>His Honor decided that the plaintiff, upon the death of her husband, leaving issue, was not entitled to any life estate in the land, and the plaintiff submitted to a non-suit and appealed.</p> <p>The clauses of the will of William Baird relied upon by the plaintiff are recited in the opinion.</p>

Civil action for damages for personal- injury tried before Robinson, J., and a jury at June Term, 1898, of Guilford Superior Court. Plaintiff offered evidence tending to prove that she was a passenger, on defendant’s train, and that while alighting at High Point from the platform, the train gave a sudden jerk, and she fell and was badly hurt.' The answer alleged contributory negligence, and defendant offered evidence tending to’prove it.

Civil action for specific performance of contract for conveyance of land, also for money paid by plaintiff to use of defendants, and for money received by defendants belonging to plaintiffs — tried before Robinson, J., and a jury at March Term, 1898, of the Superior Court of Durham County.

Controversy without action, submitted to Timber - lake, J., at Superior Court of G-ranville County, July Term, 1898. CASE AGREED.

Civil action for damages for malicious prosecution tried before Robinson, J., at March Term, 1898, of Superior Court of Durham County. The plaintiff and Adolphus Mangum had been jointly prosecuted and acquitted. There was evidence of malice towards both on part of defendant. Among the exceptions made by the defendant to his Honor’s charge was one to the instruction upon express malice. Verdict and judgment against the defendant, who appealed.

<p>Civil action for a tort tried before Robinson, J., at June Term, 1898, of the Superior Court of Guilford County.</p> <p>The tort complained of was an insulting proposition made by the conductor of defendant’s train upon which the female plaintiff was a passenger.</p> <p>The conductor, examined as a witness for defendant, testified that the proposition was induced by an immodest remark made to him by his passenger.</p> <p>The defendant was allowed to prove by this witness, over plaintiff’s objection, that before suit brought he offered to the husband to give $20 to say no more about it, and that Strother said he would see me in the morn- i ing, but did not come.</p> <p>Plaintiff excepted, and, from a verdict and judgment for $50, appealed.</p>

Civil aotiok for recovery of land., tried before Allen, J., at November Term, 1897, of Superior Court of Lenoir County.

'Civil action for foreclosure of mortgage executed to the Building & Loan Association by Emily F. Duncan and her husband, tried before Adams, J., at March Term, 1898, of Superior Court of Carteret County. Emily F. Duncan became a stockholder in the Company and also a borrower of $1,000, for which she and her husband gave their note, with a mortgage on her land to secure it. The Company failed and went into the hands of the plaintiffs as receivers.

<p>Civil action to foreclose a mortgage, tried before Adams, J., at the Superior Court, February Term, 1898, of Sampson County.</p> <p>C. T. Butler, one of the defendants, became a cor-porator and a borrower of the Carolina Inter-State B. and L. Association, and his wife, Ella Lee Butler, also defendant, joined him in a mortgage of her land to secure the debt.</p> <p>The Association failed and passed into the hands of the plaintiffs, Receivers, duly appointed, who instituted this action to subject the land to the payment of C. T. Butler’s debt — the balance due, after allowance of all deductions by way of payments, forfeitures, fines, &c., being ascertained to be $249.72, and for which judgment was rendered against him.</p> <p>So far as Mrs. Ella Lee Butler was concerned, his Honor being of opinion that the loan was usurious, that no interest is collectible out of the land, that no deductions from payments to cover losses ought to be made as to her, and that she was entitled to be credited for the purpose of discharging the mortgage lien with twice the amount paid by O.. T. Bland within two years, and so holding the said mortgage debt has been paid as to her, it was adjudged that the mortgage deed is fully discharged, and the plaintiffs are directed to cancel the same of record. .</p> <p>The plaintiffs and the defendant, T. C. Butler, excepted and appealed.</p>

Civil action for injunction heard before Adams, J., at April Term, 1898, of New Hanover Superior Court.

, at Chambers, pending in the Superior Court of Greene County. There was a demurrer to .the 'complaint which was overruled by his Honor and a restraining order granted, from which ruling the defendants appealed. The pleadings and facts are clearly stated in the opinion.

Civil action upon a note under seal, tried before Adams, J., at Spring Term, 1898, of Superior Court of G-reene County. The note for $500 was executed by Simeon Wooten, defendant, payable to intestate of plaintiff. The defendant contested the right of plaintiff to bring this suit, on the ground that Julia Wooten died leaving her husband, William I. Wooten, surviving, who died without having administered, and that his administrator was the proper person to sue.

Civil aotiok tried before Robinson, J., at Fall Term, 1898, of Superior Court of G-reeke County. The plaintiff and his partner, since dead, made two deeds of trust to the same trustee to secure the same debt. The first was executed 24 May, 1890, and conveyed the land without, reference to the fixtures (steam engine, boiler, &q.) attached — the second was executed June 12, 1890, and conveyed the fixtures only.

<p>Civil action for an injunction to enjoin the sale of land under mortgage and for an account tried before Mclver, J., at November Term, 1891, of Cumberland Superior Court. Appeal by plaintiff.</p> <p>STATEMENT OF THE CASE.</p> <p>The plea of the Statute of Limitations was set up by the defendant in this action, and the Court adjudged that the plaintiff’s action was barred, and the plaintiff appealed.</p> <p>The summons was issued on February 8, 1896.</p> <p>The plaintiff alleged in the complaint that on April 8, 1884, he executed to defendant a promissory note for $150, payable December 1, 1884, with interest, the consideration being a horse, to enable plaintiff to cultivate land which he had rented from defendant on the West side of the Cape Fear River, rent being 800 pounds lint cotton, and also another tract on the East side of the river for $75 money rent, etc. Defendant denied the allegations of the complaint.</p> <p>In the course of the action a reference was had to state an account between the parties in which the referee finds a balance due the plaintiff of $293.65. The date of the last item of the account is October 1, 1895, being a credit of a cash payment on note.</p> <p>Much evidence was introduced before the referee.</p> <p>The judgment of the Court was: It is adjudged that the plaintiff’s cause of action is barred by the Statute of Limitations and that the defendant’s exceptions to report and account filed are allowed, and that the plaintiff’s application for an injunction to restrain defendant from selling the land to collect.the debt, referred to in the pleadings, as per note and mortgage dated Dec. 31, 1884, is disallowed, and commissioners were appointed to make the sale of the land, etc.</p> <p>The plaintiff excepted to the judgment:</p> <p>1. Because the Statute was allowed to be pleaded after the reference was ordered, the evidence taken, the report made, and exceptions thereto filed by defendant ‘ ‘and a trial by jury waived. ”</p> <p>2. The plea of the Statute was not applicable to the course of dealings between the parties as disclosed in the evidence, the relation of principal and agent being shown, and a running account between the parties.</p> <p>3. The Statute of Limitation is not applicable so as to exclude evidence of payments on the note.</p> <p>4. The finding of the Court upon the effect of the Statute upon the plaintiff’s cause of action is erroneous and without evidence to support it. The cause of action was the wrongful act of defendant in exposing plaintiff’s land to sale under a mortgage which was itself more than ten years old, and which according to the evidence reported and the findings of the referee, was overpaid.</p> <p>5. Because the effect of the plea sustained by the Court, could only exclude the liability of the defendant in respect to the excess found in favor of the plaintiff over the satisfaction of the note and mortgage.</p> <p>The defendant’s exceptions to the account and state-rhent of the referee, which were allowed by the Court, are as follows:</p> <p>1. That defendant is charged with 1900 pounds of cotton at 9 | cents and with ten dollars cash in 1884 — ■ $195.25.</p> <p>2. That defendant is charged with 2,000 pounds of cotton at 9-J cents and 63 bushels of seed cotton @ 8c. in 1885 — $197.54. _</p> <p>3. That defendant is charged with 1740 pounds of cotton @ 8fc. and 76 bushels seed cotton @ 8c., in 1886 —$158.33.</p> <p>4. That the defendant is charged with 2433 pounds of cotton at 9-Jc. and 80 bushels seed cotton @ 10c. in 1887— $239.13.</p> <p>5. That defendant is charged with 1740 pounds of cotton @ 9|-c. and cash $35, in 1888, making $204.35.</p> <p>6. That defendant is charged with cash $10, Feb. 17, 1889.</p> <p>7. That defendant is charged with cash $23, October 1, 1895. That the testimony does not support the above mentioned items of charge.</p> <p>8. That the referee failed to find as a fact that plaintiff at the end of each and every year had a settlement with defendant as to all matters connected with the rent of land and advances, and that nothing was due the plaintiff on those matters.</p> <p>9. That the referee failed to find asa fact that defendant owed plaintiff nothing and that plaintiff owed defendant the amount of the note secured by the mortgage referred to in the pleadings.</p> <p>10. That the finding of fact as to plaintiff’s indebtedness to defendant should have been $159 and interest from December 31, 1884, as per note set out in the mortgage, $1-50 and interest from April 8,1894, as found by the referee.</p> <p>Defendant insists upon his right to a- jury trial upon said exceptions as above set out, and upon all issues raised by the pleadings and upon all the several exceptions made by him as to the reception and exclusion of testimony.</p>

Claim and delivery, tried before Allen, J., at April Term, 1898. of Superior Court of Moore County. The property claimed, a cow and some bed-room furniture, had been the property of Lewis Grimm, husband of Lucy Grimm, lunatic ward of plaintiff and father of defendant Maggie Maness. He had died intestate, and the property had been included in a year’s allowance to the widow, and was sued for by her guardian.

<p>Assignment — Attachment—Oaths—Estoppel.</p> <p>1. Under the Act of 1898, Chapter 453, assignors in deeds of assignment are required in a mandatory way, to file under oath a schedule of all preferred debts, with particulars, within five days of the registration of the deed.</p> <p>2. Oaths are to he taken and administered with the utmost solemnity, and this applies not only to the substance of the oath, but to the form and manner of taking and administering it required by Statute, Section 3809 of The Code. State v. Danis, 69 N. C., 383.</p> <p>3. A recital in a bond given in attachment proceedings to the sheriff for the delivery of the goods, should the plaintiff recover judgment, that the sheriff had made seizure and levy of the goods, estops the ■ defendants to deny the sufficiency and validity of the seizure of the goods and levy of the attachments.</p>

Civil ACTION upon a money demand tried by Allen, J., (a jury trial being waived) at March Term, 1898, of CUMBERLAND Superior Court.

Civil action- for damages for alleged negligence tried before StarbucJc, J., and a jury, at February Term, 1897, of Iredell Superior Court. The plaintiff was a boy eleven years of age who was employed about the factory as a quill carrier, which required his moving about over the room, and while thus employed he was- seriously injured by a piece of iron wire flying from the work bench where wires were being cut by another employee.

Civil action for damages, tried before Mclver, J., at Spring Term, 1898, of the Superior Court of Iredell County. The plaintiff was a passenger upon the defendants freight train, between Salisbury and Statesville. He testified, that when he got up here to Statesville they blowed the station below, and they slowed down about the switch, and he (the conductor) motioned to me to get off, and in attempting to do so I slipped, caught my foot in the stirrup, fell and was injured.

<p>Damages, Compensatory and Punitive — Mental Anguish.</p> <p>The doctrine of “Mental Anguish” is not. applicable to the question of damages for wrongful seizure of property; where such act is attended with circumstances of aggravation, punitive damages may be awarded.</p>

Civil action for stipulated price, $100 for building a County bridge, tried on appeal from Justices’ Court, before Allen, J., at August Term, 1898, of Superior Court of Iredell County. The plaintiffs claimed that they had built the bridge according to contract and were entitled to the contract price. The defendants deny that the bridge was completed according to contract, and plead a counter-claim, by way of damages, of $40. Two issues were submitted by the Court: 1.

<p>Damages — Mental Anguish.</p> <p>1. Damages may be recovered of a Telegraph Company for mental anguish occasioned by its negligent failure to promptly deliver a telegram.</p> <p>2. In the near relations of life, such as husband and wife, parent and child, brothers and sisters, the tender ties of affection usually exist, and mental anguish may be presumed, as a natural consequence of their being injuriously affected through the negligent conduct of another.</p> <p>8. This presumption will not be made in the more distant relations of life' — such as brothers-in-law or friends — the mental anguish in such instances must be matter of proof.</p>

<p>Civil action for damages for injuries to plaintiff’s intestate resulting in his death, and for destruction of his property, caused by a collision with defendant’s train; tried before Allen, J., at Eall Term, 1898, of the Superior Court of Davidson County.</p> <p>The issues were as follows:</p> <p>1. Was the plaintiff’s intestate’s horse killed by the negligence of defendant’s lessee? Answer: Yes.</p> <p>2. Was the death of plaintiff’s intestate and the injury to his wagon and harness, caused by the negligence of defendant’s lessee, as alleged? Answer: Yes.</p> <p>3. Did the plaintiff’s intestate, by his negligence, contribute to his own injury? Answer: No.</p> <p>' 4. Notwithstanding the contributory negligence of the intestate, could defendant’s lessee by the exercise of ordinary care have avoided the collision. Answer:-.</p> <p>5. What damage is plaintiff entitled to recover? Answer: $3,000.</p> <p>There was a motion by defendant to set aside the verdict, because it was excessive and not warranted by the ' evidence.</p> <p>Upon an intimation of the Court that it would modify the verdict as to damages, plaintiff submitted that it be reduced to $2,100, and there was judgment accordingly, and defendant appealed from the judgment as rendered. The exception taken was to the charge of his Honor upon the measure of damages, and to his declining to give the instruction asked, for by the defendant on that subject.</p> <p>The instruction asked for and the Judge’s charge appear in the opinion.</p>

Civil action for damages tried before Allen, J., at Pall Term, 1898, of Rowan Superior Court. The complaint alleged that the death of plaintiff’s intestate, a brakeman on defendant’s train, was occasioned by the negligence of defendant in not providing a safe track, in consequence of which the train was derailed, and the intestate fatally injured. There was evidence that at the place where the train ran off the track, the cross-ties were rotten and defective.

Civil action upon a promissory note, not under seal, tried before Allen, J., at August Term, 1898, of Rowan Superior Court. The defendant John A. Boyden, on 1st November, 1884, executed his promissory note payable to the intestate of plaintiff six months after date, with sureties.

Civil ACTION for damages tried before Allen, J., and a jury at Pall Term, 1898, of Davidson Superior Court. The case originated in the Justice’s Court — the plaintiff claimed $75 damages by reason of the failure of defendants to aid him in the building of a barn on his own land, as per agreement. The defendant moved to dismiss the action as upon judgmént of non-suit.

Civil actior by the plaintiffs, next of kin of W. Stonestreet, deceased, v. E. Frost, administrator, and the sureties to his bond for an account and settlement and payment of their distributive shares of intestate’s estate; tried before Mclver, J., at Fall Term, 1898, of Davie Superior Court, upon exceptions to report of referee. The summons was, by, leave of the Court, amended so as to run in the name of the State, on the relation of the plaintiffs.

This original action was instituted in November, 1894, in the Superior Court of Forsyth County. By an order in the cause W. H. Hendren was appointed receiver of the Boston Cottage Company and sold real estate claimed by the company, at public auction, to A. H. Eller, a director, who declined to pay for the same alleging that one William Palmer was claiming the same under a tax title.

Motion, on affidavit, in the Supreme Court by plain- ' tiff: for a rule on defendant and its attorneys of record in this case to show cause why execution should not issue from this Court to enforce the judgment in this action, to he levied by the Marshal, and for an order restraining them from obstructing the enforcement of the execution. This case was decided at September Term, 1897, and reported in 121 N. C., 523, 530. 'affidavit.

Civil action pending in Wilkes Superior Court and heard, by consent, before Starbuck, J., at Winston, upon a motion by defendants to vacate the restraining order, heretofore granted, until the final hearing.

Civil action to reform a deed, tried before Coble, J., at Spring Term, 1898, of Alexander Superior Court. The plaintiff was the owner of a life estate in a tract of land, 66f- acres, which she conveyed on 20th April, 1893, to the defendant D. 0. Baker, her grand-son — consideration stated being $40. D. 0.

Homestead proceeding heard before Coble, J., at Spring Term, 1898, of Davie Superior Court. The cause came on to be heard on the certificate being filed from the Supreme Court on the opinion rendered at September Term, 1897. Plaintiffs moved for judgment in accordance with certificate filed.

<p>Judgments — Attorney and Client.</p> <p>A judgment, entered by consent of counsel of record, in a matter coming within the scope of his authority, is regular, ,and binding on the client, and will not be set aside on the ground of surprise or excusable neglect. ■</p>

Civil action on the official bonds of the defendant Williams,- Sheriff of Davie County, heard upon exceptions to report of referee by Mclver, J., at Fall Term, 1898, of Davie Superior Court. The defendant, W. R. Ellis, was surety on the school tax bond only. This tax had been settled in full, but had been so settled by application of funds collected and secured under the general tax bond. He claimed exemption from all liability, as the bond he signed had been settled.

<p>Caveat to the nuncupative will of William E. Young, entered before the Clerk of the Superior Court of For-syth County — and the issue of devisavit vel non transferred to the Civil Issue Docket, and tried at August Term, 1898, by Mclver, J.</p> <p>The script propounded for probate is in these words : Send my body to J. R. Chaney, Southerlin, Virginia, all my belongings are to go to J. R. Chaney, now witness this every thing that I have is to belong to J. R. Chaney.</p> <p>June 23rd, 1891.</p> <p>The foregoing statement was reduced to writing and signed by the witnesses.</p> <p>Dr. J. P. Fearrington was one of the witnesses and propounded the script for probate. He was also the largest creditor of the deceased.</p> <p>Dr. J. P. Fearrington, the propounder, was called as a witness on behalf of the propounder, and testified, among other things, as follows : That he was a physician living in the city of Winston, and having his office about two hundred yards, or two blocks, from the Jones’ hotel. That he knew Wm. E. Young, and had as a physician, attended him. That at the time of his death Wm. E. Young was stopping at the Jones Hotel. That the said Wm. E. Young died at his, witness’ office in Winston, N. 0., on the 23d day of June, 1897.</p> <p>Witness was then asked what disposition he, Young, desired to make of his property, and who he wished to be his legatee or devisee, and all that he said Young said to him as to his wishes in regard to his property.</p> <p>Caveators objected to the evidence of said Fearring-ton, on the ground that he was incompetent to testify under Section 590 of The Code. That said Fearrington being a party to this action as propounder of the will, and also being the largest creditor of the said W m. E. Young was incompetent to testify under said section. •</p> <p>His Honor sustained the objection. The propounder excepted to this ruling,'and offered to submit to a non-suit and appeal to the Supreme Court. Caveators objected to the propounders taking a non-suit, 'as not allowed by law.</p> <p>His Honor rendered the following judgment-:</p> <p>NORTH CAROLINA, j In THE SUPERIOR COURT,</p> <p>Forsyth County, j August Term, 1898.</p> <p>In the matter of the probate of the will of W. E. Young.</p> <p>This cause coming on to be heard before his Honor Judge J. D. Mclver, upon the intimation of his Honor ruling out the evidence of J. P. Fearrington, the pro-pounder submits to a non-suit, and therefore it is ordered that the defendant caveators go without day and that they recover their costs.</p> <p>J. D. McIVER, Judge Presiding.</p> <p>Erom this judgment the propounder appealed to the Supreme Court under objection from the caveators.</p>

This was a controversy without action submitted under Section 567 of The Code, upon the facts agreed at February Term, 1898, of the Superior Court of Forsyth County, before Coble, J. His Honor adjudged that the plaintiffs are entitled to prove their entire claim as set forth in the deed of assignment of H. H. Reynolds against the assets in the hands of the assignees for distribution among the creditors of the 4th class.

Civil action to enjoin sale of realty under mortgage pending in Superior Court of Surry County. There had been made an order in the cause by Hoke, at Chambers, directing a reference to ascertain balance due on the debt and adjudging that the trustee, W. T. Purvis, is entitled to commissions provided for in deed of trust.

Civil actioN for rents. CASE ON APPEAL. This was a civil'action tried before Starbuck, J., and a jury, at Spring Term, 1898, of McDowell Superior Court, on appeal by defendant from a Justice of the Peace. The action was brought to recover a certain amount alleged to be owing by defendants on a contract of lease. The following is a copy of said contract: copy op lease. North Carolina — McDowell County.

Civil action for recovery of land, tried before Coble, J., and a jury, at July Term, 1898, of Superior Court of Ashe County. As a liuk in their title the plaintiff proposed to read the will of George Bowers. The defendants objected on the ground of defective probate. Objection sustained, and evidence excluded. Plaintiffs excepted, submitted to judgment of non-suit, and appealed. Case agreed, signed by counsel.

AmercemeNT of defendant, Sheriff of Ashe County, for not making due return of process of execution in the case of O. E. Graham & Co. v. Vail & Gilbert, heard on appeal from Justice’s court by Coble, J., at Fall Term, 1898, of Superior Court. CASE.

Civil action for trespass, quare clausum fregit, tried before Coble, J., at September Term, 1898, of McDowell Superior Court. The defendants filed an answer, denying the allegations of the complaint, but did not appear .in person or by counsel at the trial term. The plaintiff moved for judgment by default and en-quiry. Motion refused. Plaintiff excepted and appealed.

Civil action to enforce a parol trust by declaring the defendant a trustee of land, holding for the benefit of the widow and heirs at law of the late John McMillan, tried before Coble, J., at July Term, 1898, of Ashe Superior Court. The plaintiffs claimed as heirs of John McMillan, who died in possession; the defendant, a son of John McMillan, claimed to be owner of the land under a deed from John F. G-reer.

Civil action for the recovery of laud, being a couple of acres, upon which were situated a grist and saw mill, and damages are claimed for an alleged obstruction by defendant of a road leading to the mills, over his land. The answer admits the ownership by plaintiff of the mill property, and avers that the plaintiff, is in possession thereof, and denies any interference with it by defendant.

Civil action, with claim and delivery for personal property, tried before Starbuck, J., and a jury at Spring Term, 1898, of Mitchell Superior Court. The action was brought in the name of W. H. Hea-ton alone for a lot of birch logs, 18 in number.

Civil action of claim and delivery for a horse and cow of the value of $25, begun in the Justice’s court and taken by appeal of defendant to the Superior Court of Lincoln County, and heard before Greene, J., at Pall Term, 1898. The plaintiffs claimed the property under a mortgage .made to them by defendant to secure a debt of $21.

Civil ACTION upon a policy of insurance issued by the defendant to Charles L. Vonhurst, deceased husband of intestate of plaintiff, for his wife’s benefit The action was institúted in the Superior Court of Union County, and at January Term, 1898, was heard before Oreen, J., upon a motion for judgment for want of a proper verified answer to the verified complaint. The answer was verified by a general agent of the company, but who was not an officer of the company.

This is the same case, between the same parties decided at the present Term, adjudging the insufficiency of the verification of the answer. The point is now presented for the decision of the Court as to the sufficiency of the verification of the complaint so as to 'require a verified answer. The’facts are presented in the opinion. The same counsel appear for the parties.

Civil action for damages for injuries received by plaintiff as a passenger on defendant’s street car through its alleged negligence, tried before Starbuck, J., and a jury, at October Term, 1898, of Mecklenburg Superior Court. The evidence was that while plaintiff was in the act of stepping off the car, it was started, and she was thrown upon the ground and injured very badly.

Proceeding under Section 941 of The Code to collect notes given by the defendant at a judicial sale made under an order in the case W. P. Williams, administrator of Mrs. M. M. Williams, ex parte. The heirs joined in the application for sale. Among them was an infant, Patrick H. Williams, represented by W. P. Williams, his father, the administrator and also commissioner appointed to conduct the sale.

Civil action on a promissory • note for $100, dated March 19, 1892, at 12 months after date, made by J. M. Little and endorsed by defendants in blank. Payment of interest, annually, was received down to 20th March, 189S. The case originated in the Justice’s court, April 16, 1898, and was carried by appeal to the Superior Court of Mecklenburg- County, and tried before Starbuck, J., at October Term, 1898, a jury trial being waived.

Civil ACTION on a money demand tried before Green, J., and a jury at March Term, 1898, of Mecklekburg Superior Court, on appeal from Justice’s court. The Star Mills was a corporation, and its president was W. M. Crowell, who owned 70 out of 72 shares of its capital stock; the other two shares stood in the name of two other stockholders — one share to each — for which they had paid nothing. The validity of the corporation, however, is not now in question.

Civil action to declare invalid, and void $1)8,000 of Buncombe County refunding bonds issued in 1895 and to enjoin the payment of principal and interest by the defendant, the County Treasurer, heard before Norwood, J., at January Term, 1898, upon motion to continue the restraining order until Anal hearing. Motion allowed and defendant appealed.

This was an appeal from the Superior Court of Haywood County, Spring Term, 1898, Hoke, J., presiding. Judgment rendered in favor of plaintiff. Appeal by defendant Smathers.

Action on a money demand, commenced in the court of a Justice of the Peace, and appealed by defendant to the Superior Court of Haywood County and tried before Greene, J., at Fall Term, 1898.

Civil action for the possession of a lot of sawed lumber, known as the Shelton yard lumber, tried before Greene, J., and a jury at Fall Term, 1898, of Madison Superior Court. J. Q-. Williams, upon'his application, was allowed to interplead for said lumber, alleging that he was the owner. The Court ordered that the issues between Williams, interpleader, and the plaintiffs be made up and submitted to the jury first. The Court submitted the following issues: 1.

Controversy without action submitted for decision, upon facts agreed, to Norwood,- J., at Asheville, on December 12, 1898. His Honor rendered judgment in favor of defendant, and plaintiff appealed. The facts agreed are stated in the opinion.

Civil ACTION in the nature of trespass to try title to land, tried before Timberlake, J., at December Term, 1898, of the Superior Court of Pitt County. The plaintiff claimed under the John Brinkley.grant represented on the map, and it was agreed she was the owner of the land covered by it. The defendants claimed under the William Smith grant represented on the map, and it was agreed that they were the owners of the land covered by it.

<p>Sheriff's Bond — Plea in Bar — Settlement of Taxes — . Order of Reference.</p> <p>1. The general rule is, that, where there is a plea in bar, it must be disposed of, before a reference for an account can be made.</p> <p>3. In an action upon a Sheriff’s bond for settlement of public taxes, where previous settlements are referred to and specific errors therein are pointed out in the complaint, which seeks to surcharge and falsify those accounts and settlements — and the answer pleads them in bar of the action. — such plea will not avail against an order of reference to ascertain the correctness of the settlements in the particulars pointed out. This is so by virtue of the Revenue Acts of 1895 and 1897, as well as upon legal principles, without special legislation.</p> <p>3. Previous settlements with the Sheriff, when approved by the Board of Commissioners are prima 'fade correct, and the burden of proving to the contrary rests upon them.</p>

<p>Civil action against the defendant as endorser of two notes payable to the bank for $l,u00 each, dated respectively March 14th, 1895, at 4 months after date, and May 27th, 1895, at 90 days after date, executed by the Jones M’f’g Co., and endorsed by the defendant, ánd also by G-. B. Jones and T. W.-Jones who are not sued.</p> <p>These notes were renewals — the.original notes were dated and endorsed Nov. 8, 1894, and January 26, 1895. There were no payments entered upon the said notes at time suit was brought — subsequently under date of September 18, 1897, a credit on each was endorsed thus : “Rec’d on within note $513.14, being part-of amount rec’-d from J. M. Scott, Receiver, from the $8,000 note.”</p> <p>These credits the plaintiff contended were all that the notes were entitled to; the defendant contended they were satisfied in full.</p> <p>The facts, as agreed, are as follows:</p> <p>On Dec. 20; 1894, The Jones Manufacturing Co., executed a note payable 8 months after date for $8,000 to J. B. Jones and T. W. Jones, and to secure it gave them a mortgage on its property.</p> <p>On April 23, 1895, The Jones Manufacturing Co., executed its note to the Bank for $5,000 at 4 months after date, which was discounted, with T. W. Jones and G. B. Jones, endorsers, and as collateral security to this note, the note and mortgage of $8,000 above stated, were lodged with written pledge to furnish additional collaterals at any time on demand — “the net proceeds of this sale of the above securities maybe applied either on this note, or any other note of our liabilities or engagements held by said Bank, as its President or Cashier may elect; and we the maker or makers hereby waive the benefit of our homestead exemptions as to this debt and contract.”</p> <p>Signed: • The Jones Manufacturing Co. Endorse: T. W. Jones,</p> <p>G. B. Jones.</p> <p>The Jones Manufactuiing Company failed and went into the hands of a Receiver, the defendant Scott, who foreclosed the above $8,000 mortgage, held by the Bank as collateral security for the $5,000 note, and he paid the $8,000 into Bank — with which they paid off the $5,000, leaving $3,000 over, which the bank apportioned among the two notes' in suit, and other notes it held on the Jones Manufacturing Co., upon which were no endorsers and which amounted to $2,295.</p> <p>His Honor, Brown, J., who tried the Case at January Special Term, 1898, of Pasquotank County submitted two issues to the jury.</p> <p>1. Was-it agreed between G. B. Jones acting for himself and the' Jones M’f’g Co. at the time of the defendant’s endorsement of the notes of said company sued on in this action, that said defendant should be secured and indemnified as to his said endorsement to the plaintiff bank, by the security of the said $8;000 note and trust deposited as collateral with plaintiff, subject to the prior lien of .the $5,000 loaned thereon by the Bank?</p> <p>The jury say, Yes.</p> <p>2. Did the plaintiff Bank, while holding said $8,000 note and trust, have notice of said agreement prior to April, 25, 1895, after which date the $2,295 notes were purchased ?</p> <p>■ The jury say, No.</p> <p>Upon these findings of the jury, both sides claimed the judgment of the Court.</p> <p>His Honor gave judgment that defendant go without day and recover his costs.</p> <p>Plaintiff excepted and appealed.</p>

<p>Sheriff — Tie Vote — Contested Election. — Quo Warranto —Mandamus—Injunction.</p> <p>1. The failure of a new Sheriff to qualify, when it is undetermined who is elected and no certificate has been issued to him, does not authorize a declaration by the County Commissioners that the office is vacant. The old Sheriff holds over until his successor is declared elected and qualified. The Code, Section 1872.</p> <p>2. It is not permissible to try the title to an office by injunction, nor by mandamus — a civil action in the nature of quo warranto, is the appropriate remedy, to be tried before a judge and jury.</p> <p>3. A contest cannot be maintained over the certificate, which conveys only aprima fade title to the office subject to the declaration of the right in a quo warranto proceeding. The officer charged with the duty of issuing the certificate settles that matter conclusively so far as its issuance is concerned, but at his peril, if he act corruptly.</p> <p>4. The Clerk does not have the power in the first instance to count the ballots and declare the result, but merely to add up the various precinct returns legally made and ascertain the result.</p> <p>5. A tabulation of the result, by the Clerk, in the manner required by law is prima facie correct, and can only be questioned in a quo warranto proceeding.</p> <p>Montgomery, J., dissenting: A proceeding in the nature of quo warranto cannot be maintained, where-the defendant is not in possession of the office, and where the action is brought before the term of the office is to begin.</p>

Civil action before Adams, J., at October Term, 1897, of Durham Superior Court, upon three promissory notes, dated January 14, 1896, for $242 each, payable six, seven and eight months after date to the order of M. Lindheim, executed by the defendants, and endorsed by the payee to the plaintiffs, before maturity and for value, and protested for non-payment.

Civil action for foreclosure heard before Allen, J., at May Term,' 1898, of. Cumberland Superior Court upon demurrer.

<p>Special proceeding for partition of real estate before the Clerk of Superior Court .of Pender County. Commissioners were appointed to divide the land and allot to the tenants in common their respective shares. To the report of the Commissioners the defendants file exceptions, and move, upon affidavits, to have the division set aside for inequality in value of the shares.</p> <p>Motion allowed by the Clerk, and a new division ordered — from which order the plaintiffs, who had also filed affidavits, appealed to the Judge at term. By consent the case was heard by Robinson, J., at Chambers in Goldsboro on 23d December, 1897.</p> <p>The defendants raised the following objections :</p> <p>1. That the affidavits raised an issue of fact, as to whether the division is fair and equal, which should'be tried by a jury and not by the Judge.</p> <p>2. That the- decree of the Clerk, setting aside the report, did not affect the substantial right, and therefore was not appealable, as the same was a matter of discretion.</p> <p>3. That the report should be set aside because the Commissioners required co-tenants to open and keep open a lane.</p> <p>His Honor overruled the objections and proceeded to hear the cause. Defendants excepted.</p> <p>After hearing the evidence and arguments of counsel on both sides, his Honor adjudged and decreed, that the order of lhe Clerk be set aside and that the report of the said Commissioners be in all things confirmed^ — and that the parties hereto hold the said shares as allotted to them by the said Commissioners in severalty —that their report be enrolled in the office of the Clerk of the Superior Court of Pender County and also registered in said county ; and that the costs be paid equally by the parties.</p> <p>To the judgment of his Honor the defendants except, and asssign as error :</p> <p>L. The decision of the court, that the affidavits did not raise an issue of fact for a jury.</p> <p>2. That the order of the Clerk did not affect a substantial right, and was appealable.</p> <p>3. That the report of Commissioners should stand as made.</p> <p>Appeal by defendants.</p>

<p>Insanity of Sheriff-— Deputy Sheriff-Sureties — Tax Collector — Coroner.</p> <p>1. The official ascertainment of the insanity of a Sheriff suspends him from office, and terminates the agency of his deputies.</p> <p>2. His sureties, in that event, have merely the same right which they would have in the event of the Sheriff’s death — that is, to collect 'the current tax list then in his hands; and the County Commissioners on the first Monday in September following are vested with the power of electing a tax collector for the ensuing year, unless and until the Sheriff should be restored to reason.</p> <p>8. The County Commissioners, under Section 2071 of The Code, may declare the office vacant, upon the insanity of the Sheriff, but their failure to do so merely authorizes the Coroner to perform the duties of Sheriff proper, but does not cast upon him the right to collect taxes.</p>

Motion made in a civil action commenced in Superior Court of Burke County on February 17, 1898, to enjoin the sale of certain lots, under mortgage, in the-town of Morganton, the defendant being the trustee in the mortgage, heard before Starbuck, J., upon notice, at Chambers in Marion on March 9. 1898.

Motion to continue a restraining order until the hearing made before Bryan, J., at Chambers in Newbern, on September 25, 1897, in the above entitled cause. The plaintiff was a stockholder in the Greenville Lumber Co., which had become insolvent — the other defendants are creditors.

Civil action to recover damages for the negligent killing of the intestate of plaintiff by defendant’s train, tried before Norwood, J., at Halifax Superior Court. ISSUES. 1. Did the defendant negligently kill the plaintiff’s intestate ? 2. Was said intestate guilty of contributory negligence ? 3. Notwithstanding such negligence on the part of said intestate, could the defendant by the exercise of due care and prudence have prevented the killing ?

Civil action for damages for personal injury received through the alleged negligence of defendant tried before Robinson, J., at February Term, 1898, of the Superior Court of Guilford Oohnty.

Civil action begun in the Justices Court and tried on appeal before Allen, J., at Fall Term, 1898, of the Superior Court of Davidson County. The plaintiff was the holder of an order for $22.50 issued by Amos Smith and Joe Miller, who signed as Committee of District No. 32, colored, Davidson County, dated May 28, 1897, in favor of W. W. Tutwiler, for purchase of school charts. Tutwiler sold the order to plaintiff and endorsed it.

Civil action tried before Hoke, J., and a jury at Spring Term, 1898, of the Superior Court of Buncombe County. Held: on appeal from a former trial, that under the trust deed of J. W. Wilson, the' wife and children were tenants in common — the plaintiff as surviving child owning two-thirds and the wife one-third of the trust estate, during the life of the wife, now widow of said Wilson, and granted a new trial. 119 N. 0., 583.

Civil action for interest in land, tried before Hoke, J., at March Term, 1898, of the Superior Court of Buncombe County. STATEMENT OF THE CASE. The land sued for was admitted to have belonged to Csesar Swinton, colored, who died before suit was> brought.

Civil action to recover land, tried before L. L. Greene at August Term, 1898, of Buncombe Superior Court. The land in suit was a city lot in Asheville, N. E. corner of Depot street and Patton Avenue, and had formerly belonged to G. W. Cannon, who on June 13, 1890, conveyed it in trust to C. J. McCape to secure a debt to Mrs. E. H. Hendrickson of Philadelphia. Before settling the trust, the trustee left the State leaving the trustor in possession.

PLAINTIFF’S APPEAL. - Civil action instituted by the next of kin and dis-tributees of the estate of W. Stonestreet against the official bond of E. Fiost, his administrator, heard before Mclver, J., at Spring Term, 1898, of Davie Superior Court upon exceptions to report of referee. By leave of the Court, the County of Davie was allowed to interplead in this action in order to assert an unpaid claim, due by judgment- recovered against the intestate, in his life-time.

<p>County Commissioners — Public Bridges Across County Lines — County Warrants.</p> <p>1. County bridges, across county lines, must be authorized by both counties and built at joint expense — The Code, Section 707 (10). amended by the Acts, 1895, Chapter 135, Section 2.</p> <p>2. Where a county bridge is a necessity to one county alone, across a boundary stream, and the adjoining county refuses to join in the construction an enabling Act of the Legislature must be obtained.</p> <p>3. Invalid county orders, warrants and bonds, although transferred to an innocent purchaser for value, and without notice, are open to all defenses against the original- holder, and have not the protection that attaches to mercantile paper, even when negotiable in form— Wright v. Kinney, at this term.</p>

Civil ACTION upon two promissory notes executed by the firm of D. F. Bridges & Co. payable to the plaintiff, tried before Greene, J., and a jury at Spring Term, 1898, of the Superior Court of Cleveland County. The complaint alleged that William Rippy, the intestate of defendant, was a partner in the firm of D. F. Bridges & Co. The answer denied this allegation.

Civil ACTION to foreclose a mortgage, ■ made to the plaintiff by defendants, A. T. Griffin and wife, E. A. Griffin, and incidentally to compel the defendant, Marion Ste-gall, vendor to the female mortgagor, to make her another deed, on the ground that she and her husband refused to put the original deed to her on record. The mortgage was given to secure a debt of the husband.

Civil action to recover damages for injuries to plaintiff’s mill, by defendants while floating- logs in Tucka-seigee river, tried before Norwood, J., and a jury, at Pall Term, 1897, of Jackson Superior Court. The complaint alleged: IV.

<p>Probate of Wills Not Subject to Collateral A ttack— Title.</p> <p>1. Title from tlie State down to the plaintiff, if believed, and no counter evidence, entitle? him to recover against the defendant in possession and the jury may be - so instructed.</p> <p>2. Probate of a will by the Clerk of the Superior Court is a judicial act, and his certificate is conclusive evidence of the validity of the. will, until vacated on appeal, or declared void by a competent tribunal in a proceeding instituted for that purpose. It cannot be vacated in a collateral manner. Mayo v. Jones, 78 N. C., 402.</p>

Civil action on the official bond of 0. B. Candler, Sheriff of Madison County, to recover balance of school funds due the county, tried before Hoke, J., on demurrer at Spring Term, 1898, of the Superior Court of Madison County. The action was originally instituted in the name of B. Tillery, County Treasurer.

Civil action heard upon exceptions to report of referee before Holce, J., at Spring Term, 1898, of the Superior Court of Madison County.

Civil actiok.pending in the Superior Court of Swaust County for the recovery of land. 'One W. A. Ehloe was appointed receiver and was put in possession of the property by order of Court. Upon application to the Court, a rule and order to show cause was issued against the plaintiff and three other persons, why they should not be attached for contempt for entering upon, injuring and forcibly holding possession of the premises, in defiance of the orders of the Court.

Scire facias upon forfeited recognizance, heard before Norwood, J., at Spring Term, 1898, of the Superior Court of Pasquota'nk County. . The defendant, Horton, with Ward as his surety, was bound over by a Justice of the Peace for his appearance at Fall Term, 1897, (3d Monday in September, 1897) of the Superior Court of Pasquotank County, to answer a charge of larceuy. This Term was not held owing to the sickness of the Judge. The defendant was in attendance.

Ixdictment tried before Norwood, J., at Spring Term, 1898, of Hertford Superior Court against the defendants, Justices of the Peace of said county, for failing to perform the duties imposed upon them as a Board of Supervisors of the Public Roads, by Sections 2014-2024 of The Code.

<p>INDICTMENT, charging an assault with intent to commit rape, tried before Norwood, J., at April Term, 1898, of Hertford Superior Court.</p> <p>Maggie Vann, prosecutrix, testified that the defendant, at her house, caught hold of her and tried to throw her on the bed; that she told him to let her go, he threw her on the bed and pulled up her clothes a little way; she got away from him and ran off; that the defendant throated to kill her if she told it.</p> <p>The defendant examined in his own behalf denied the assault and the threat to kill.</p> <p>The court, among other things, charged the jury: That if they were fully satisfied from the testimony, that defendant caught hold of Maggie and threw her violently on the bed and pulled up her clothes, as stated by her, then he would be guilty of the crime charged in the indictment, and the jury should so find.</p> <p>To this part of the charge, the defendant in apt time excepted.</p> <p>Verdict of guilty.</p> <p>Defendant moved for a new trial, assigning as one ground: That the court erred in giving the jury the instruction above set out, whereas the jury ought to have been instructed, that if they were fully satisfied, that defendant caught hold of prosecutrix and threw her violently on the bed and lifted up her clothes, as testified to by her, then these would be facts, from which the jury might infer, that the assault was made with the intention of committing the rape.</p> <p>Motion for new trial overruled, and the defendant appealed from the judgment pronounced by the court.</p>

INDICTMENT instituted in the Criminal Circuit Court of Edgecombe County against the defendant for failing to have a lawful fence around his farm on the 20th January, 1898. The jury rendered a special verdict-finding the facts, and upon their finding the court directed a verdict of guilty to be entered, and fined the defendant one penny and costs. The defendant appealed to the Superior Court.

<p>Indictment for unlawful fishing in the waters of Al-bemarle Sound, tried before Brown, J., at Spring Term of the Superior Court of Bertie County.</p> <p>The defendant was indicted under Chapter 51, Acts 1897, which prohibits the setting of any anchor, drift, or staked gill nets in Albemarle Sound over 20 yards in length for the purpose of catching fish.</p> <p>The Act further provides that upon conviction of its violation in the Superior Court of any of the counties bordering on Albemarle Sound, the offender shall be fined, &c.</p> <p>There was a special verdict that the defendant set certain gill nets for the purpose of fishing in the waters of Albemarle Sound, twenty yards long, fastened together, ten in number, with cords at top and bottom, the space between each net being not more than six inches, but when set during ordinary wind and tide, the space midway between the top and bottom lines of the nets was from three to six feet between the nets.</p> <p>That if setting the aforesaid nets as aforesaid is a violation of the law, the defendant did the act wilfully and knowingly.</p> <p>Upon the special verdict the court rendered a judgment of guilty, and defendant appealed.</p>

IndiotmeNT for murder tried before Timberlake, J., at March Term, 1898, of Wake Superior Court. The prisoner was convicted of murder in the first degree of Mahaley White upon the following bill of indictment : Superior Court, January Term, 1898.

Indictment for disposing of crop before paying rent, tried before Robinson, The defendant was acquitted, and his Honor imposed the costs upon the prosecutor W. H. Williams, on the ground that the prosecution was frivolous and malicious and not required by the public interest. There was some evidence that such was the case. The prosecutor excepted and appealed.

IkdiotmeNT for forcible entry and detainer, tried before Allen, J., at July Term, 1898, of the Superior Court of Randolph County. There was a verdict of guilty; judgment, and appeal. The bill of indictment is as follows: BILL OF INDICTMENT. First count. Personal property.

Civil action to vacate a grant heard upon demurrer by Adams, J., at March Term, 1898, of the Superior Court of Pender County. It appears from the pleadings that the State has no interest in the land. Demurrer was sustained, and the case dismissed at costs of plaintiff. Plaintiff appealed.

<p>IndiotmeNT for Forcible Entry and Detainer, tried before Coble, J., at April Term, 1898, of Stoices Superior Court.</p> <p>The defendants with one William Collins were included in the indictment for Forcible Entry and Detain-er of the premises of the prosecutor. All the defendants pleaded not guilty — and Lawson and Collins pleaded, in addition, former acquittal.</p> <p>The Solicitor for the State admitted that this is the same transaction for which Lawson and Collins were indicted and tried at last term of the court under an indictment for forcible trespass and a verdict of not guilty rendered.</p> <p>These two defendants then asked his Honor to direct the jury to find their plea of former acquittal in their favor.</p> <p>His Honor declined, and they excepted. At the conclusion of the State’s testimony, the defendant’s demurred ore terms to the evidence and asked his Honor to instruct the jury that there was no evidence to warrant a verdict of guilty — which his Honor declined, and the defendants excepted.</p> <p>Verdict of not guilty as to Collins; and of guilty as to Lawson and Cheatham. Judgment as to them and appeal.</p> <p>The evidence is sufficiently stated in the opinion.</p>

INDICTMENT for burning a gin house, tried before StarbneJc, J., at Fall Term, 1898, of the Superior Court of Union County. The indictment charged that the defendant did unlawfully, wilfully and feloniously set fire to and burn a certain gin house belonging to J. L. Bennett and in possession of one Gr. W. Bailey. The defendant was convicted. He moved for a new trial on the ground that during his absence from the court room the Court had proceeded with the trial.

<p>Indictment for assault and battery with a deadly weapon upon Henry Keziah, tried before Greene, J., at January Term, 1898, of Union Superior Court.</p> <p>The defendant Austin had employed a son of the prosecutor as a cropper on his wife’s land, but who died before the crop was matured. After the crop was matured the prosecutor, his daughter, and two other members of his family went upon the land, picked cotton, and were carrying it off when the defendant, an old man aged 82, came with a pair of steelyards to weigh the cotton and forbid them to carry off the cotton, and upon their persisting, he threatened them with his walking stick, shaking it over their heads in striking distance. This caused them to desist, and he took the cotton and carried it to the house.</p> <p>His Honor charged the jury: That if the defendant drew the stick on the prosecutor when in striking distance of him, thereby causing him to desist from taking the cotton from defendant, the defendant would be guilty.</p> <p>Defendant excepted.</p> <p>Verdict of guilty, judgment, and appeal by defendant.</p>

Similar indictment for assault and battery upon M. A. Keziah, daughter of Henry Keziah, defendant, upon the same evidence as in preceding case. Verdict guilty; judgment and appeal.

Indictment, larceny of an axe, tried before Greene, J., at Spring Term, 1898, of Union Superior Court. The evidence was circumstantial, of which possession by the defendant was the principal circumstance against him. The charge of his Honor was very brief and is given in full in the opinion. Exception by defendant. Verdict of guilty; judgment and appeal.

<p>INDICTMENT for murder.</p> <p>The prisoner was indicted for the murder of Jim Crawford in the First Criminal Circuit Court for Meck-lenburg County, held by Sutton, J., at June Term, 1898, and was found guilty of murder in the first degree. From the judgment pronounced he appealed to the Superior Court of Mecklenburg County, and his appeal came on to be heard at October Term, 1898, of the Superior Court before Starbucks, J.</p> <p>The prisoner claimed a trial ele no.vo. The Solicitor contended that only questions of law arising in the case should be passed upon.</p> <p>His Honor adjudged that the defendant is entitled to a trial de novo in the Superior Court. From this judgment the Solicitor appeals to the Supreme Court.</p> <p>Appeal granted.</p>

Indictment for slander of an innocent woman, tried before Starbuch, J., at Pall Term, 1898, of Stanly Superior Court. The defendant and the prosecutrix had been man and wife — there was evidence that he had seduced her before marriage, and that she bad a child about five months after marriage; that after the birth of the child, defendant went to Texas and remained there three years — and on his return, stated that he had procured a divorce from his wife in the Texas Court.

Indictment for robbery, tried before Hohe, J., at Spring Term, 1898, of the Superior Court of Cherokee County. The defendants were indicted for robbery from the person of William Bush. In getting a jury, the original panel was exhausted and so were the talesmen summoned from the bystanders.

<p>Election Laiv — Appointment of Registrars.</p> <p>(Election Case from Mecklenburg.)</p> <p>1. Under the provisions of Chapter 185, Acts of 1897, the County Board of Elections is not required in all cases to appoint three registrars for each voting precinct, but to appoint one qualified voter of the precinct from each one of the political parties, and such board has no right or authority to appoint a member of one party for another party.</p> <p>2. That said Board has no authority to appoint two registrars from the same party in the same voting'precinct. • •</p>