Volume 124 — North Carolina Reports

ApplicatxoN fob Injunction, in suit pending in Hert-ford Superior Court, to enjoin tbe commission of trespass bytbe defendants, beard before Brown, J., at Chambers. Tbe trespass complained of was tbe cutting of timber trees and hauling them off to be sawed at defendants’ mill. Tbe parties appeared in obedience to tbe order to show cause, and both sides were beard upon affidavits. His Honor refused tbe injunction, but required tbe defendants to file a bond of indemnity.

PbtitioN, iu tbe nature of Processioning Proceeding, to establish tbe boundary line between tbe plaintiff and defendant, filed before tbe Clerk of the Superior Court of Camden County, and transferred for trial of issues at Term, tried before Norwood, J., at Spring Term, 1898. The petition alleged ownership and possession in the plaintiff. The answer denied both allegations of the petition. The evidence was conflicting. The issues were found in favor of the plaintiff.

ApplicatioN foe Injunction, made in a Special Proceeding to establish boundary lines under Act of 1893, chapter 22, pending before the Clerk of the Superior Court of Hyde County. A temporary order of restraint had been obtained from his Honor, Judge Norwood, restraining the defendants from commission of trespasses, with order to show cause before his Honor, Judge Brown, why the injunction should not be permanent.

Civil ActioN against tbe defendant for wrongfully can-celling a policy on plaintiff’s life, wbicb be bad taken out for tbe benefit of bis wife, tried before Brown, J., at May Term, 1898, of CraveN Superior Court. Tbe complaint claimed a return of all premiums paid, witb interest. Tbe answer sets up as a defense tbe non-payment of a bimonthly premium, due November 25, 1894, for tbe sum of $16.90.

Civil AotioN, for the penalty of $500, under section 2079 of The Code, instituted against the defendant as sheriff of Beetle County for making a false return in the suit of Joseph Swain, plaintiff, v. F. A. Phelps, executrix of Asa Phelps, John Johnson and John Johnson, Jr., defendants, returnable to February Term, 1898, of the Superior Court of said county.

<p>Civil Actiojst for damages, tried before Norwood, J., and a jury, at Spring Term, 1898, of the Superior Court of Pasquotawk County. The plaintiff was the daughter-in-law of defendant. The complaint substantially charged that the defendant maliciously alienated the affections of ber bus-band from ber and caused bim to abandon ber. Tbe answer denied tbe charge. Tbe evidence was voluminous and conflicting.</p> <p>Among other things, bis Honor instructed tbe jury that: “If the jury find that tbe defendant willfully caused tbe plaintiff’s husband to forsake and abandon ber, tbe plaintiff is entitled to recover.” And as to tbe measure of damages, that if they should find that tbe defendant caused tbe plaintiff’s husband to willfully forsake and abondon ber, and that it was not done with malice, they should give only such actual damages as tbe plaintiff bad sustained.</p> <p>Defendant excepted.</p> <p>There was a verdict for plaintiff for $800. Judgment accordingly, and defendant appealed.</p>

Civil AotioN for damages to plaintiffs’ land by overflow and ponding water, caused by tbe alleged negligent and unskillful construction of defendant’s road, tried before Nor-wood, 11., at Eall Term, 1898, of Edgeoombe Superior Court.

Claim ato Deliveey for personal property, tried before Norwood, J., at Fall Term, 1898, of CbaveN Superior Court. The plaintiffs claimed the possession of certain articles of personal property, under a chattel mortgage executed 30th November, 1896, by defendant to feme plaintiff, to secure a note executed by bim to her for $300, due 30th November, 1891, with power of sale if debt not paid at maturity. There was no stipulation as to possesion in the meantime.

<p>Marriage License — Register of Heeds — The Code, Section 1816.</p> <p>When application for marriage license is made to the Register of Deeds, be is to be cautious and to scrutinize the application, upon peril of incurring tbe penalty imposed by Section 1816 of The Code, if improperly issued; and where be is without personal knowledge of the parties, it must appear probable to him, upon reasonable inquiry, that tbe license may and ought to issue.</p>

Civil. Action to recover damages for alleged injury to tbe land and crops of plaintiff, caused by ponding of water by defendant’s road-bed and bridge, tried before Norwood, J., at Eall Term, 1898, of Noethampton Superior Court. De-fence: General denial and statute of limitations. Dependant's Appeal. It was admitted in open Court: 1. That this action was begun on March 26, 1892. 2. That the bridge and embankments were completed in 1881. 3.

This is the plaintiff’s appeal from the judgment rendered in this canse. The answer contained the allegation, “For further answer, these defendants say, that the bridge, embankments and abutments,-mentioned in the complaint, are permanent in their character; that whatever damage (if any) said bridge, embankments and abutments, caused to the lands of the plaintiff, was permanent in its characterand the jury so found.

Civil AotioN for recovery of land, tried before Brown, J., at December Term, 1898, of tbe Superior Court of Pitt County. Both sides claimed under Edmund Evans, deceased. Upon tbe evidence adduced bis Honor intimated that tbe plaintiffs were not entitled to recover. In deference to tbe opinion of bis Honor, tbe plaintiffs submitted to judgment of nonsuit and appealed. Tbe evidence fully appears in tbe opinion filed.

<p>Demurrer, under Act 1897, Chap. 109 — Probate of Will of Nonresident Devising Land here — Tenancy in Common —Gonveyance by one Tenant in Common of Entire Interest — Adverse Possession and Ouster.</p> <p>1. A motion to dismiss under Act of 1897, chapter 109, is substantially a demurer to tbe evidence, wbicb waives all abjection to its competency, and admits as true all that the evidence tends to prove.</p> <p>2. Where a non-resident testator devises land in this State, and the record of the foreign Court of Probate, duly certified, contains the certificate of probate, which refers to the certified examinations of the witnesses, in accordance with the requirements of our Code, Section 2149, the whole forming one transaction, the exemplification of which and of the will being duly recorded in the county where the land lies, the will is sufficiently proved and passes the property.</p> <p>3. Where a tenancy in common is shown, the possession of one is the possession of all — and the rule is the same, when one enters to whom a tenant in common has by deed attempted to convey the whole land.</p> <p>4. The ouster of one tenant in common by another will not be presumed from an exclusive use of the common property and appropriation of the profits, for a less period than twenty years; and the result is not changed when one enters to whom a tenant in common has by deed attempted to convey the entire tract.</p>

<p>PetxtioN to Rehear tbis cause, relating to tbe construction of tbe will of W. J. Capehart, decided at February Term,. 1898 (122 N. 0., 119).^</p>

This is a Case Agheed, submitted, under section 56Y of Tbe Code, to tbe decision of Bryan> J., at March.Term, 1898, of tbe Superior Court of Pitt County, for construction of Frederick White’s will. Tbe facts are as follows: 1. Frederick White died in Pitt County in 1892, leaving a last will and testament, duly probated in Pitt County Superior Court, tbe item of which, material to this case, is as follows: “Item 2.

<p>Assignment, Deed of — Preferred Creditors — Badges of Fraud — False Promises.</p> <p>1. The debtor bad the right (prior to the enactment of the Bankrupt Act, approved July 1, 1898), by a voluntary assignment to prefer one creditor over another, provided it was done merely for tbe purpose of giving tbe preference, and not for the purpose of hindering, delaying or defeating other creditors.</p> <p>2. It is not tbe effect of tbe preference, but tbe intent with which it is made, that renders it fraudulent and void.</p> <p>3. False promises to pay are evidence of bad faith, but are not to be classed among tbe usual badges of fraud, such as continuation of possession, or a secret trust, or some provision for tbe ease and comfort or benefit of tbe assignor, or tbe insertion of a feigned debt.</p> <p>4. Where there is no evidence upon an issue, it ought not to go to tbe jury.</p>

Civil Action, upon a life insurance policy, tried before Timberlahe, J., at July Special Term, 1898, of Pasquo-TANK Superior Court.

Civil ActioN., for goods sold and delivered, tried before .Norwood, J., at Eall Term, 1898, of Nobthamptost Superior Court. There was claim and counter-claim; and the statute of limitations was pleaded by each party to the other’s account.

Civil ActioN, to vacate tbe cancellation entered upon tbe margin of registration of a mortgage from John W. Erwin, deceased, to the plaintiffs, on the ground that it was the unauthorized act of their attorney, tried before Bryan, J., at April Term, 1898, of the Superior Court of Franklin County. The defendants — administrators and heirs-at-law of the intestate, Erwin — claim that the act of plaintiffs’ attorney, if not authorized, was at least ratified, by his clients.

<p>Special PboceediNg bob PaetitioN of land transferred from tbe Olerk of tbe Superior Court of Pitt County for trial, at Term, of tbe issues joined, and beard before Brown, J., at December Term, 1898.</p> <p>Plaintiffs claimed that they were tenants in common with defendants.</p> <p>Defendants claimed that they were sole owners. It was admitted that the land in controversy was owned by James Wilson at the time of his death in July, 1856.</p> <p>The plaintiffs claimed that James Wilson left no will and that they were entitled as heirs-at-law to share in the property.</p> <p>The defendants claimed that James Wilson left a will, which was found four days after his death and admitted to probate and registration in 1856, in which the land was devised to his son, Simon Wilson, whom he constituted executor, and who duly qualified as such, and under whom the defendants derived title by successive conveyances.</p> <p>All these circumstances relating to the will defendants proposed to prove by the deposition of said Simon Wilson, who was incapacitated from attending Court — it having been previously shown that the court-house in Greenville was burned on January 8th, 1858, along with the Court records.</p> <p>The plaintiff objected to the competency of the witness under section 590 of The Code, and to the competency of the evidence, on the ground that the evidence of a destroyed record, with its contents, could not be proved by parol evidence in this collateral way, but that it required a direct proceeding under The Code, chapter 8, to set up and restore the destroyed record. The objections were overruled by his Honor, and the evidence admitted. Plaintiffs excepted.</p> <p>There was verdict and judgment for defendants and plaintiffs appealed.</p>

Statement of case by Mr. Justice Claris: This was a case tried before Allen, J., and a jury, at November Term, 1898, of EowaN Superior Court, for tbe recovery of damages for the death of the plaintiff’s intestate, a boy of from twelve to thirteen years of age, who was run over and killed by the defendant’s engine and tender, while shifting cars in the town of Salisbury. There was no exception to evidence.

Civil AcmoN, tried before Rohe, J., at Fall Term, 1898, of Pamlico Superior Court, to recover damages on account of slanderous words alleged to have been spoken concerning the plaintiff by defendant, through its agents, Armstrong and Cole.

Civil AotioN, to foreclose a land mortgage, tried before Timberlahe, J., at February Term, 1898, of Wake Superior Court. The plaintiff claimed as mortgagee of Richard Einnell, who had purchased the property from Sion II. Rogers, and had it conveyed to E. A. Johnson, in fee-simple, for the sole and separate use of Mary A. Einnell, his wife. The terms of the trust are quoted in the opinion.

MotioN to retax Bill of Costs in a Special Proceeding, ex parte, for partition of land, made before Bryan, J., at November Term, 1898, of Johnston Superior Court.

Civil ActioN, instituted in the Justice’s Court of Wase County, to enforce assessments Upon two policies of insurance. There were written pleadings, complaint and demurrer. The demurrer was sustained, and an appeal taken to the Superior Court, and tried before Brown, J., February 2, 1899, who overruled the demurrer with leave to the defendants to answer. The defendants appealed. The principal grounds of tbe complaint and demurrer are stated in tbe opinion.

<p>Civil ActioN to recover damages, alleged to bave been occasioned by tbe wrongful ejection of the plaintiff from the depot waiting-room, at Asheville, by defendant, tried before Green, J., at May Term, 1898, of the Superior Court of HbNdeesoN County.</p> <p>It was'in evidence that the plaintiff, a resident of Henderson County, bought a ticket at Asheville for passage to Hot Springs, in Madison County; that he procured his ticket about dark- on December 15, 1896, at the depot, the train to leave at 2 o’clock A. M. of December 16; that he left the depot and went up town to make some purchases, and returned about 8 o’clock, and went into the waiting-room to remain until his train was to leave. Soon after he had entered, the employee of the defendant company came in to close up and required hiTn to leave. He objected and showed his ticket, but upon demonstrations made to put bim out, he left, and having no money to pay for accommodations awaited in the dark and cold for the arrival of his train, and that his health was seriously affected by the exposure1.</p> <p>It was in evidence on the part of the defendant that the rules of the company required thé closing of the waiting-rooms after the departure of trains, to remain closed until thirty minutes before the departure of its next train, and that the plaintiff was so informed.</p> <p>Upon the evidence the defendant insisted the plaintiff was not entitled to recover and asked his Honor so to charge. This his Honor declined to do — and in effect charged the other way. Defendant excepted.</p> <p>Verdict and judgment for plaintiff for $5'00.</p> <p>Appeal by defendant.</p>

Civil ActioN by tbe plaintiff, a tax payer, resident of G-reensboro, to enjoin the city authorities from opening, widening, grading, curbing and macadamizing certain streets in G-reensboro, and building an iron bridge across the Piedmont Railroad, and from borrowing $15,000 to be used for such purposes; also to restrain defendant Cone from lending them the money, upon the alleged ground that the proposed action by the Board was not undertaken for the benefit of the public,…

Civil ActioN for damages, alleged to bave been sustained by the plaintiff through the negligence of the defendant in allowing its road-bed, where it crossed the public road at Harrisburg in Cabarrus County, to be in a dangerous condition, without warning, whereby he was unable to get over while attempting to cross with his mule and buggy, and was forced to jump out in order to save himself, upon the approach of a train, and was seriously injured in the fall.

<p>Devise — Life Tenant — Remaindermen—Order of Sale— Purchaser.</p> <p>1. Where there is a devise for life with remainder over to persons not in esse, the life tenant still living, the Court can not order a sale, because there can he no one before the Court to represent the interest of the remaindermen.</p> <p>2. It is otherwise, when all the remaindermen living are before the Court — they represent a class, and when the gift' is general, with no element of survivorship in it, those afterwards born are concluded by the action of the Court upon those of the same class then before it — and the purchaser gets a good title.' Irvin v. Olarlc, 98 N. C., 437.</p>

Civil AotioN upon a certificate of life insurance in the sum of $1,000, payable to the plaintiff upon the death of his wife, Annie C. Bragaw, tried before Uolce, J., at Fall Term, 1898, of the Superior Court of Beaufort County. The defendant was a corporation, under the laws of Kentucky, for benevolent and charitable purposes, and had subordinate Lodges in other States, among them' Pamlico Lodge, in Washington, N. C., of which the plaintiff and his wife became members.

Civil ActioN, asking for the declaration of a trust in favor of plaintiffs upon a tract of land devised to defendant and W: T. Perdue, by his grandfather, James H. Falkner, and conveyed to his co-defendants, Powell and Cooper, tried before Brown, J., at Fall Term, 1898, of VaNCe Superior Court. His Honor ruled that the words used created no trust or charge upon the land. Plaintiffs excepted, and appealed. The devise is stated in the opinion.

Civil ActioN, tried before Robinson, J., at March Term, 1898, of Dueham Superior Court, on appeal from Justice’s Court. There was judgment for plaintiff and appeal by defendants. The circumstances of the case are stated in the opinion.

<p>City WabeaNt for penalty for peddling without license, originating in Mayor’s Court and heard upon appeal by Timberlake, J., at Fall Term, 1898, of Guileoed Superior Court, upon Case Agreed.</p> <p>His Honor adjudged against the defendant, who appealed.</p> <p>Case Agreed appears in the opinion.</p>

Civil ActioN upou a promissory note, upon wbicb tbe firm of Hunt, Paylor & Co. was principal, and tbe other defendants wrere sureties, tried before Timberlahe, J., at August Term, 1898, of PeesoN Superior Court. Tbe principal obligor set up no defence. Tbe sureties controverted tbeir liability. There was verdict and judgment against them also, and they appealed. Tbe circumstances of avoidance relied upon by them are stated in tbe opinion.

Civil ActioN for conversion of lot of tobacco. Tort waived, and suit on contract, commenced in Justice’s Court in Halifax ■ County, and carried by appeal to Superior Court, and tried before Norwoods J., at November Term, 1898. The defendants, Boyd & Young, owned a tobacco warehouse at Enfield, and were engaged in the business of selling leaf tobacco there on commission.

Civil ActioN to recover damages for personal injury in consequence of a collision with, an obstruction in a public street in Raleigh, tried before Bryan, J., at October Term, 1898, of Wake Superior Court. His Honor charged the jury that if they believed the evi-den.ce, tbe plaintiff was entitled to recover from the defendant, the City of Raleigh. Defendant excepted. Verdict and judgment for plaintiff. Defendant appealed.

Civil ActioN to recover damages for personal injury, alleged to have been occasioned by the negligence of defendant, tried before Timberlalce, J., at August Term, 1898, of G-uil-Nokd Superior Court. This is the same action in which there was a former trial and appeal, reported in 122 N. 0., 902.

PetitioN EOR PaRtitioN of land filed before tbe Clerk of Iredell Superior Court, and transferred to Term, and beard before Melver, J., at May Term, 1898. Tbe parties all claimed under tbe will of Alexander Clark. T. M. Clark was a posthumous child. Tbe decision of tbe 'cause involved tbe proper construction of tbis will. ITis Honor decided that they all shared equally, each taking one-third. The defendant excepted and appealed. A copy of tbe will appears in tbe opinion.

PetitioN ROE PaRtition ’ of land transferred from the Clerk of Superior Court of Iredell County and heard at May Term, 1898, by Melver, J. This case, like the preceding one, involved the construction of the will of Alexander Clark. His Honor decided that Catherine E. Benton was sole owner. The plaintiff excepted and appealed. The opinion states the circumstances of the case.

<p>PetxtioN to reliear this cause, decided at February Term, 1898, and reported in 122 N. C., 434.</p> <p>Petition allowed.</p>

Civil ActioN to recover damages for flooding plantiffs’ land, and thereby injuring both crops and land, tried before Adams, J., at Spring Term, 1898, of ReNdeh Superior Court. The action was commenced on August 30, 1895, by W. B. Hocutt, intestate of plaintiffs. At the instance of the defendant, an issue was submitted as to permanent damages, and in this Court, upon motion of defendant, the heirs were made parties.

Civil ActioN for damages for personal injury, caused by the negligence of a fellow-servant in the employment of the defendant Company, tried before Timberlaice/ J., at October Term, 1898, of Dueham - Superior ’ O'ourt.

Special PeoceediNg to sell land for assets, transferred from the Clerk of Chatham Superior Court and heard before Potinson, J., at February Term, 1898.

<p>PetitioN to rebear tbis cause, decided at February Term, 1898, and reported in 122 N. C., 347.</p> <p>Petition disallowed.</p>

Civil ActioN for foreclosure of laud mortgage, tried before Timberlalce, J., at January Term, 1899, of New HaN-ov.ee County. Demurrer filed. Overruled. No answer. Judgment. Exception and appeal. The case is sufficiently stated in the opinion.

Civil AotioN to recover damages for injury to live stock, transported over defendant’s road, tried before Norwood, J., at Eall Term, 1898, of CbavbN Superior Court. Tbe animals were transported by connecting lines from Nashville, Tenn., to New Bern, N. C., under a bill of lading lirpifriug' tbe common-law liability of common carriers, in consideration of reduced rates. In tbe transit one of tbe animals, a mule, died on tbe cattle-car of tbe defendant.

<p>Civil ActioN, tried before Timberlake, J., upon report of referee and exceptions thereto, at September Term, 1898, of AlakaNCe Superior Court. Judgment in favor of plaintiff. Appeal by defendant.</p>

Civil ActioN to recover damages for personal injury suffered by tbe plaintiff from being thrown from bis wagon, bis borses taking frigbt from tbe negligent letting off steam by tbe defendant from its engine on a side-track, along a public street in tbe town of Warsaw, tried before Robinson, J., at Special December Term, 1897, of DupliN Superior Court. Tbe issues were: 1. Was the plaintiff injured through the negligence of the defendant ? 2.

<p>Mortgage, First and Second — Probate .before a Relative of the Mortgagor.</p> <p>1. Probate and private examination taken before an officer are not invalid simply because be is related to tbe parties.</p> <p>2. Sucb proceeding is not adversary, and is in tbe nature of declarations against tbe interest of tbe relatives making them.</p>

Civil ActioN, upon a fire insurance policy, to recover a loss by fire, tried before Timberlalce, J., at April Term, 1898, of Wake Superior Court, on appeal from Justice’s Court. One Ben McCullers borrowed $110 of B. E. Montague, attorney of plaintiff, I. M. Proctor, and executed a mortgage to Montague, attorney, to secure tbe debt, and as additional security insured tbe buildings on tbe land against fire in tbe Georgia Home Insurance Company.

Civil, Actioh, for tbe possession and control of land, subject to tbe defendant’s marital right of ingress and egress, tried before Timber-lake, J., at Fall Term, 1898, of Caswell Superior Court. The plaintiff was wife of defendant. Tbe case turned upon tbe proper construction of a deed executed by tbe parents of tbe plaintiff. Under this deed, tbe plaintiff claimed a fee simple interest; tbe defendant claimed a life estate.

Summary PROCEEDING in ejectment, taken on appeal from the Justice’s Court of Cumberland County, and tried before Allen j J., at March Term, 1898. The plaintiff claimed that defendant was his tenant, had paid him rent, that her tenancy had expired and she was holding over. The defendant admitted possession, denied the tenancy, and claimed that she was the equitable owner of the property.

AppuicatioN for equitable relief, praying for the cancellation of a deed held by defendants; also for an injunction against any conveyance of the land by them, or any interfering with or attempting to enter, or other acts of ownership over the land, or its mineral interests. The cause was pending in the Superior Court of Granville County. The restraining order was granted by Timber-lake, J., and continued to the hearing at Chambees., September 17, 1898.

Civil ActioN for tbe possession of personal property embraced in a chattel mortgage, tried before Robinson, J., at Fall Term, 1898, of DupliN Superior Court. Tbe defendant bad bought a mare from the plaintiffs for $90, for which sum he gave his note secured by chattel mortgage on other stock. This action was to recover the stock and apply to the debt. The defendant alleged false warranty and deceit in the sale of the mare, and that she was worthless.

Civil ActioN by legatee against executor for amount as-' certained to be due and reported in a proceeding before tbe Cleric, tried before Bynum, Jat November Term, 1898, of Cumberland Superior Court. Judgment by default for want of answer for debt and costs.

Civil AotioN for admeasurement of dower, tried before Robinson, J., at August Term, 1898, of DupliN Superior Court. The action, was commenced July 8, 1896. The plaintiff is tbe widow of George Brown. They were married in August, 1854; in September, 1854, he bought from A. Best the land, located in Duplin County and described in the complaint, and took a fee simple deed for it, with warranty, proved and registered in January, 1855.

Civil Aotiow for damages for tbe death of intestate, occasioned as was alleged by tbe negligence of tbe defendant, tried before Norwood, at February Term, 1898, of Beau-jpoRt Superior Court. At tbe close of plaintiffs evidence tbe defendant moved for judgment of nonsuit, wbicb was allowed by his Honor. Tbe plaintiff excepted and appealed. A statement of tbe evidence appears in the opinion.

Civil ActioN by the plaintiff, an attorney-at-law, upon an account of professional services- rendered R. J. W. Beaman, administrator of R. C. D. Beaman in the management of the estate, tried before Robinson, J., at August Term, 1898, of G-RKENto Superior Court.

Civil ActioN for damages for personal injuries, occasioned by reason of a dead limb falling on plaintiff from a shade tree on sidewalk of a street in Greensboro, tried before Robinson, J., at February Term, 1898, of Guileoed Superior Court. There was evidence of the injury and of the cause. The defense was, that the defendant had no notice of the defective condition of the tree. Two issues were submitted to the jury: 1.

<p>Life Insurance Policy — Construction—Premium—Estoppel —Issues.</p> <p>1. Possession of the policy, at the death of the insured, makes out a prima facie case.</p> <p>2. An acknowledgment in the policy of the receipt of the premium estops the company, so far as payment of premium is concerned, to contest the validity of the policy, in the absence of fraud, although as a mere receipt for money it is only prima facie, and like other receipts is rebuttable by proof to the contrary. In analogy to the same rule as to deeds, the receipt of the consideration money expressed therein may be shown to be untrue — but paid, or not paid, the title passes all the same.</p> <p>3. The uniform rule of construction of insurance policies is, that if reasonably susceptible of two constructions, that one will be adopted which is most favorable to the insured.</p> <p>4. Instruction to agents, that if the first premium was paid more than thirty days after due there must be a health certificate, is evidence against the company, recognizing that indulgence on the payment is allowable, but is not evidence against the insured, who may rely upon a provision in the policy itself that such payment must be made during life.</p> <p>5. Where every phase of defendant’s contention could be and was presented without prejudice, under the issue submitted by the Court, a refusal to submit other issues asked for, is not error.</p>

Civil ActioN for recovery of a No. 80 Smith Dry Kiln 'Hot Blast Apparatus and machinery, tried before Brown, J., May Term, 1898, of the Superior Court of CbaveN County, being the same cause heretofore tried and reported in 111 N. C., 87 and 92, on appeal of both plaintiff and defendant. The contract price was $2,337, to be paid in different instalments.

<p>. Civil ActioN for recovery of damages by fire through negligent failure of defendant to furnish water to extinguish the same, heard by Robinson, J., upon complaint and demurrer at February Term, 1898, of Guileoed Superior Court. The demurrer was overruled and defendant required to answer. The defendant excepted and appealed. The grounds of the demurrer controverting the merits of the action and the plaintiff’s right to sue are considered in the opinion.</p>

Civil ActioN to recover damages for injury to land by fire alleged to have originated from sparks from defendant’s engine through negligence, tried before Adams, J., at February Term, 1898, of Duplot Superior Court.

<p>Laborer s Lien — Common Law and Statute.</p> <p>1. At common law, continued possession is necessary to the existence of the lien; when possession is voluntarily surrendered the lien is gone.</p> <p>2. So far the Legislature has provided a lien only when the service or labor is for the betterment of the property on which it is bestowed, leaving the laborer in all other cases to secure himself, as at common law.</p>

<p>Appeal — When Docketed in Supreme Gourt.</p> <p>An appeal is deemed docketed when the transcript is received by the Clerk of this Court. It then becomes a record of the Court, not subject to the control of parties or their counsel.</p>

MotioN to set aside judgment, beard before Bynum, J., at November Term, 1898, of Oumbebland Superior Court.' Motion disallowed, and defendant appealed. Tbe facts found by bis Honor are stated in tbe opinion.

This was a Civil ActioN, tried by Bynum, and a jury, at November Term of CumbeexaND Superior Court. The de>-feudant R. M. Nimocks made uo answer, and judgment by default was rendered against him. The Judge, after hearing all the testimony, settled the issues, being all that were offered by either side. See the five issues, and the jury’s answers thereto, as set out in the record and in the opinion.

Civil Action for the possession, custody and control of the State’s Prison, the .convicts and all the property and accessories belonging thereto, tried before Brown, J., at February Term, 1899, of Waxe Superior Court.

Civil ActiON upon a money demand, tried before Allen,, J., at July Term, 1898, of RaNdolph Superior Court. Tbe facts are undisputed and appear in tbe opinion. On motion of defendant, tbe plaintiff was nonsuited and appealed.

Civil AotioN, with warrant of attachment, tried before Robinson, J., at December Term, 1897, of DupliN Superior Court. During the pendency of the action, the defendant W. A. Houston, the common debtor of the other parties, having died, J. B. Sandlin was appointed his administrator.

Civil, ActiON to vacate an assignment and for injunction and receiver, beard before Robinson, J., at February Term, 1899, of the Superior Court of Robeson County. The deed of assignment was made by defendant Ootting-ham to defendant Patterson, assignee, and contained preferences.

Civil AgtiON upon an insurance policy on life of Gf. R. Sprinkle, in which plaintiff was the beneficiary, tried before Oreen, J., at Eall Term, 1898, of MadisoN Superior Court. The insured died February 24, 1897. Recovery was resisted oil the ground that the application signed by the insured contained false and fraudulent answers to questions concerning his health prior to and at the time of the application, which invalidated the policy, issued October 15, 1896.

Claim: AND Delivery proceedings for a mule, tried before Timberlalce, J., at August Term, 1898, of PersoN Superior Court. It was in evidence tbat tbe plaintiff was tbe owner of a borse, wbicb ber husband, now dead, swapped off for tbe mule incontroversyjustbeforebeleft tbe State. Along witb tbeborse be traded some articles of property of bis own for tbe mule, and got $40 to boot.

<p>Civil Agtiow upon a money demand, accompanied with proceeding in attachment, tried before Bynum, J.,- at November Term, 1898, of the Superior Court of CumbeblaNl County.</p> <p>There was no dispute about the debt. The question was as to the validity of the attachment, and that turned upon the legality of the deed of assignment from R. M. Nimocks to W. S. Cook, especially in reference to the sufficiency of' the schedule of preferred debts filed by Nimocks; as to this-the following issue was submitted:</p> <p>Was a duly sworn schedule of preference filed by defendant Nimocks in the office of the Clerk of Superior Court of Cumberland County, and is such schedule in compliance with the laws of North Carolina regulating assignments?</p> <p>The alleged defect was the insufficiency of the description of some of the preferred debts in not stating the consideration, and the plaintiffs contended if any of them were invalid the defect vitiated the whole, and subjected the property to their attachment.</p> <p>The defendants introduced no evidence. The Court instructed the jury, if they believed the evidence, to answer the issue, “No,” which they did. Judgment was rendered in favor of plaintiffs for their debt; also vacating the defendants’ deed of assignment and sustaining the attachment. Defendants excepted and appealed.</p>

<p>Will — Contingent Devise — Survivorship.</p> <p>Decision in this cause reported in 122 N. C., 199, reaffirmed. Hil-liard v. Kearney, 45 N. C., 229, approved, hut distinguished. The Code, section 1327. Buchanan v. Buchanan, 99 N. C., 308.</p>

Civil ActioN for trespass quare clausum fregit, tried before Robinson, J., at August Special Term, 1897, of SwaiN Superior Court. The plaintiff not being in possession, the case turned upon the issue of title. The plaintiff claimed under a grant to W. L. Love issued in 1872. The defendants claimed under grants issued to Cooper and Goodhue in 1885.

Civil ActioN for recovery of land, tried before Rotee, J., ■ at July Special Term, 1898, of BuNcombe Superior Court. Tbe plaintiffs claimed tbe land known as tbe Riverside Parle, in Asheville, by purchase and deed from C. E. Graham, trustee of Natt Atkinson and P. F. Patton, at sale made August 10, 1895. Tbe defendants claimed under tax deed of J. H. Weaver, Tax Collector of Buncombe County, dated April 17, 1895.

Civil ActioN to recover land, tried before Norwood, J.. at Spring Term, 1897, of ClevelaNd Superior Court. Both, parties claimed under B. Justice. The plaintiff claimed under a mortgage executed by B. Justice and wife, dated February 5, 1877, and registered same day. It was executed in the presence and in the office of the defendant, who was an attorney-at-law and knew the land intended to be embraced in the mortgage.

Civil ActioN for damages for breach of contract, tried before Coble J., at May Term, 1898, of Forsyth Superior Court. The defendant denied the plaintiffs’ cause of action and pleaded counterclaims. There were verdict and judgment for plaintiffs and exception and appeal by defendant. The opinion shows the contentions, evidence, issue, charge and exceptions.

Civil Actiow to subject certain funds and lands in the possession of the defendants as assets for the payment of debts of the intestate, alleged to be held by them under fraudulent conveyances, tried before llolce, J., at July Special Term, 1898, of BuNcombe Superior Court. The answer denies all allegations of fraud. The following issues, among others, were submitted to the jury: 1.

Civil ActioN for damages for personal injuries sustained by alleged negligence of defendant, tried before Greene, J., at March Term, 1898, of MeckleNbueg Superior Court.

Civil ActioN for damages as compensation for mental anguish occasioned by negligence of defendant in delivering a telegram sent at plaintiff’s instance to ber brother-in-law, J. W. Mock, tried before Shaw, J., at February Term, 1899, of the Superior Court of Iredell County. This is the same cause reported in 123 N. C., 267, and tried upon the same two issues as to negligence and damages.

<p>Attachment — Garnishment—Situs of Debt.</p> <p>1. For the purpose of an attachment the situs of a debt is where the debtor resides.</p> <p>2. As a general rule, the Courts of a State can not by service of process upon an inhabitant of another State, transiently within their jurisdiction, charge such person as garnishee; but if when so served the garnishee have in his possession, within the State, money or property of the defendant, or has contracted to pay money or deliver property within such • jurisdiction, he may be charged.</p> <p>3. The Court entertaining a garnishment must have some jurisdiction over the thing garnished.</p>

Issue of Devisavü vel non, in re. tbe Will of Lucinda L. Tuttle, tried before Coble, J., at Eall Term, 1898, of tbe Superior Court of Caldwell County. His Honor thus stated tbe issue to the jury: “Tbe issue submitted to tbe jury is: Us tbe writing offered, tbe Will of Lucinda L. Tuttle, deceased?

Civil, Actiow to enforce the payment of coupons matured upon bonds issued by the old Town of Fayetteville, tried before Bynum, J., at Fall Term, 1898, of CumbeblaND Superior Court.

<p>Wills — Charitable Uses — Trusts—Latent Ambiguity — The Code, Sections 2342 to 2345.</p> <p>1. A latent ambiguity as to the cestui que trust or as to the trustee may be explained by evidence. If the evidence fails to identify the cestui que trust, the trust fails — but the Courts will not allow a trust to fail for want of a trustee, and if necessary, will supply one.</p> <p>2. Devises for charitable uses to institutions to be established, if sufficiently definite, have always been upheld; and if necessary, the courts would hold the fund until incorporation could be effected, or would appoint substituted trustees. The whole matter of enforcing and controlling private charities is regulated by Sections 2342 to 2345 of The Code. The Courts take special care to enforce them.</p> <p>3. A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well being of social man. Neither the doctrine of ey pres nor 43 Eliz., ch. 4, in anywise affects the validity of a devise for such' purpose in this country.</p>

Civil AotioN in contract for board and tuition of two cadets entered at tbe Horner School, tried before Robinson, J., at January Term, 1898, of the Superior Court of G-eaN-ville County. The plaintiff claimed $479.25 for board, tuition, etc., for one scholastic year for the cadets.

<p>Telegraph Companies- — -Agents—Negligence—Mental Anguish.</p> <p>1. Agency is a matter of law purely, when the facts are undisputed.</p> <p>2. Where by the custom and rules of the defendant company, their telegraph offices at Sanford and Aberdeen, two places on the Augusta Air Line R. R., were closed to public business between 7 o’clock P. M., and 7 o’clock A. M., and between those hours the night operators of the Railroad Company were on duty for railroad business only, but the offices were not in fact closed, and the night operators received messages for transmission and the usual charges, which were both turned oyer to the day operator next morning. Held, that the night operators were agents of the Telegraph Company as well as of the Railroad Company, both for transmission and delivery,</p> <p>í. The defendant company cannot keep its offices open, receive messages for pay, and then when a negligent delay in their delivery service occurs, screen themselves by saying that the persons who are in their places of business take the messages and receive payment therefor are not its agents.</p>

Civil AotioN to recover damages for mental anguish suffered by feme plaintiff on account of alleged negligence of defendant in the delivery of • a telegram — tried before Goble, at March Term, 1899, of MtscKleNbueg Superior Court. The plaintiffs lived at Charlotte. On May 24, 1897, early in the morning their child died.

Civil Action upon a promissory note for $1,300, payable to the Bank, and passed due, secured by pledge of ten shares of the capital stock lodged as collateral security — tried before Allen, J., at February Term, 1899, of the Superior Court of Eobsyth County. The relief asked was judgment on the note and order of sale of the stock, unless the judgment was paid in some reasonable time.

Civil ActioN upon a money demand for the recovery of deposits alleged to have been misapplied, tried before M cl ver, J., at August Term, 1898, of Forsyth Superior Court. The plaintiff is surviving partner of the firm of Hodgin Bros. & Lunn, composed of himself and L. L. Lunn.

<p>Marriage Settlement — Life Estate — Vested Remainder.</p> <p>1. In a marriage settlement, it was provided that the intended wife, in the event of survivorship, should he entitled to a city lot in Charlotte, belonging to the intended husband, to be enjoyed during her life, and at her death, the property to descend to his heirs at law. The marriage took place and she survived him. Held, that the remainder subject to the widow’s life estate, vested at his death, in l;is heir at law, a son by a previous marriage.</p> <p>2. Upon the death of an intestate ancestor, the title to his estate descends and vests at once in his heirs; it cannot stand in abeyance, and vest in future, like an executory devise.</p>

Civil AotioN carried by appeal from Justices’ Court of Wake County to the Superior Court, and beard before Brown, J., at February Term, 1899, upon the following: Case Agreed.

Civil AotioN for $400 due by note under seal, executed by defendant, Wilson, payable to the co-defendant, the Mor-ganton Manufacturing & Trading Co., and discounted by plaintiff Bank, tried before Coble, J., at Fall Term, 1898, of the Superior Court of Buses County. Plaintiff's Appeal. The answer of Wilson set -up matter in avoidance, equivalent to plea of payment of the whole debt.

Civil Aotiok for special relief, tried before Moke, J., at Spring Term, 1898, of Haywood Superior Court. The plaintiff, Merrimon, was the owner by assignment from plaintiff, Shuford, of a note for $1,000, executed by one D. M. Shook, and defendant, J. Wiley Shook, and secured by mortgage on house and lot from D. M. Shook and wife to plaintiff, Stevens, as trustee.

<p>Negligence — Engineer—Braheman—Local Train— Evidence.</p> <p>1. A local mixed train — passenger and freight combined — which runs daily between designated places, with schedule time for arrival and departure, with considerable passenger business, and schedule so arranged as to enable and encourage the people along the route to go to and fro, the same day, between their homes and important places — the object being to promote travel and to build up business in that line — ought to have a Conductor, and the defendant was negligent in not having provided one.</p> <p>2. Whether or not the intestate’s death was caused, without his fault, by the failure of defendant company to furnish a Conductor, is a. question for the jury, under proper instructions as to the law, from the Court.</p> <p>3. The declaration of the intestate, made while he was hurriedly going from the coach at the rear end of the train to the engine in front: “Get out of my way, I want to get to Mr. Hall (the engineer) to give him these tickets before the train gets two fast,’’ was competent evidence as a part of the res gestae — and was properly admitted.</p> <p>4. It was incompetent, after objection, for the engineer to testify, that he would have stopped the train in order that the intestate might have returned to the coach, if he had been requested so to do. This evidence was improperly admitted.</p>

Civil AotioN to enforce a contract for payment of money alleged to be dne to tbe testator of plaintiff from testator of defendant, instituted on November 20,1886, in tbe Superior Court of BüNcomRe County. Tbe cause was referred at March Term, 1898, to George F. Bason, Esq. — his findings of fact to be conclusive and final, but bis conclusions of law upon tbe facts, to be reviewable, on exception, by tbe Court. Tbe report to be made at next Term or earlier if practicable.

MotioN to vacate a judgment rendered against defendant individually at March Term, 1898, heard upon affidavits before Starbuclc, J., at March Term, 1899, of Buncombe Superior Court. The motion was allowed, and plaintiff appealed. The facts found by his Honor are stated in his Judgment, subjoined: Judgment. Nobth Caromna-WBuncombe County. Superior Court — March Term, 1899.

Civil ActioN for damages for personal injury sustained through the alleged negligent driving of defendant’s hack driver, tried before Starbude, J., at October Term, 1898, of MecKleNbueg Superior Court.

<p>Petition to Rehear — Practice—Errors Assigned — Facts— Law — Statutory Lien — Married Women — The Oode, Section 1826.</p> <p>1. A petition to rehear should contain a plain, concise statement of facts, or law overlooked or erroneously decided, and not a mere argument.</p> <p>2. No case should he reheard upon petition, unless it was hastily decided and' some material point was overlooked, or some direct authority was not called to the attention of the Court.</p> <p>3. There can he no statutory lien without a debt for the lien to rest upon.</p> <p>4. The Code, Section 1826, confines the capability of a married woman, unless a free trader, in making contracts, affecting her real and personal property to the instances therein mentioned, unless with the written consent of her husband.</p> <p>5 The building of a house on a lot belonging to a wife does not fall within any of the exceptions embraced in Section 1826 — nor would a judgment against her on a debt embraced within those exceptions constitute a lien on her real estate, although her personal estate would be liable.</p> <p>6. Although coverture may not be pleaded, if it appears in the case, it is the duty of the Court to see that a feme covert has the benefit of this defence.</p>

<p>Promissory Note — Executors and Administrators — Personal Liability — Equity Jurisdiction.</p> <p>1. A personal representative, who executes a note as executor or</p> <p>administrator, without qualification or reservation as to personal liability — thereby incurs a personal legal liability as maker.</p> <p>2. Equity, for many reasons, will reform and correct facts; but as a general rule it does not correct errors of law. There must be some fact, some inducement, some fraud connected with the transaction that raises the equity.</p> <p>■3. Although equity is now administered in the same Court and may he in the same action, the rules that govern now are the same they formerly were — to entitle a party to equitable interference and equitable relief the same equities must exist as would have availed before 1868.</p> <p>PetitioN to ReheaR. Case reported in 122 N. C., 319.</p> <p>Furches, J., delivers the opinion.</p> <p>-Dougias, J., dissents.</p> <p>Clark, J., did not sit on the hearing of this case.</p>

Civil ActioN on an account for $88.38, for goods sold and delivered, taken by appeal from the Justice’s Court of GeaN-villtd County to the Superior Court. Case on Appeal. This civil action, to recover for goods sold and delivered, to the defendants by the plaintiffs, was tried at the November Term, 1898, of Granville County Superior Court, before Timberlalce, J., and a jury.

<p>Husband and Wife — Separation—Husband’s Liability— Wife’s Agency.</p> <p>1. A husband can make his wife his agent, and he will be bound by her acts by the same rules of law, as would prevail in the case of any other agency.</p> <p>2. Where a husband, by his course of acquiescence in the dealings between the plaintiffs and his wife and by his payment of the accounts, held his wife out to the plaintiffs as empowered to purchase goods from them — such agency by implication is as binding as if he had expressly authorized her to buy the goods on his account.</p> <p>3. The implied agency having been established, the plaintiffs had a right to presume that the authority would be continued until they had reason to know that it had been discontinued.</p> <p>4. When the whole transaction shows that the credit was extended to the husband, the manner in which the goods were charged to the wife would not affect his liability, especially where monthly statements of the accounts were furnished to him, some of which he paid without objection.</p>

MaNdaMus, heard before Brown, J., on 28th April, 1899, at Chambers, upon complaint and demurrer during April Term of the Superior Court of Wake County.

<p>PetttioN to Rei-ieae. This cause decided at September Term, 1898, and reported in 123 N. 0., 656.</p>

<p>Board of Internal Improvement — President and Directors of the Atlantic and North, Carolina Railroad Company — Public Office — Term of Office.</p> <p>1. A provision for an appointment to office “biennially” ex vi termini, implies a two years’ term of office.</p> <p>2. A term of office embraces the ideas of tenure, duration, emolument and duties.</p> <p>3. An office is property, and is protected by the rule, which applies to property of a more tangible character.</p> <p>4. An Act undertaking to deprive the legal incumbent of his office without his consent is void. Soke v. Henderson, 15 N. C., 1.; State Prison v. hay, at present Term.</p>

Civil Actiow in tbe nature of a quo warranto to try the right to a public office, to-wit, the office of Clerk of the Western Criminal District Court for Buetcombe County, tried before Siarbuclc, at March Term, 1899, of the Superior Court of Buncombe County, upon complaint and demurrer.

Civil ActioN for foreclosure of mortgage of laud described in complaint. The defendant William R. Brinn, had purchased the land from plaintiffs, received a deed and had given notes to secure the purchase money, and with his wife had executed a mortgage to secure the notes and had made default in payment.

<p>PetitioN to Rei-ieae this case decided at September Term, 1898. Reported in 123 N. 0., 769.</p>

Civtx. AotioN for recovery of real estate, tried before Nor-wood, J., at May Term, 1898, of the Superior Court of Hali- . fax County. The land in controversy had been sold for taxes, and plaintiffs claimed as assignees of the tax collector’s certificates of sale, given to the County, and deeds pursuant thereto.

CONTROVERSY without action, relating to tax title to land, submitted under Section 567 of The Code upon statement of fact agreed, to StarbucTc, J., at Chambers at Hendersonville, December 1, 1898. The case comes from Eutherford County, where the land, in controversy, is situated. The facts agreed are stated in the opinion. His Honor adjudged the plaintiff to be owner of the land and entitled to possession. Defendant excepted and appealed.

CONTROVERSY witliout action, relating to tax title to land, submitted, upon agreed statement of facts, to Goble, J., at Chambers, in Gaston County, April 15, 1899. The facts agreed are stated in the opinion. His Honor gave judgment that the plaintiff is the owner in fee of the land in controversy and entitled to the possession of the same. Defendants except and appeal.

<p>MotioN for a writ of certiorari, to be directed to the Superior Court of Orange County. Motion denied.</p> <p>The facts are stated in the opinion.</p>

Civil ActioN for injunction relief to restrain tbe defendants from enforcing an assessment on tbe property of plaintiffs, and from interfering with, their floatage of logs down the Catawba and John Rivers. A temporary order of restraint was granted by Robinson, J., in this cause pending in Bueke Superior Court, and came to a hearing, by consent, before Bryan, J., at Chambers at Raleigh, on 25th October, 1898, and was heard upon affidavits from both sides by his Honor.

<p>Keeper of the Capitol — Offices, Constitutional and Legislative.</p> <p>1. Constitutional offices must tie filled in ttLe mode designated in tlie Constitution.</p> <p>2. Under tlie amended Constitution of 1875, the Legislature may provide for the filling of any office created by statute.</p> <p>3. The office of Keeper of the Capitol is a legislative office. By the Act of February 23, 1899, amending Section 2301, of The Code, the Legislature conferred upon themselves the power to fill that office — and on March 6, 1899, elected the plaintiff.</p>

, at Chambers in Raleigh,-during April Term, 1899, of Wake Superior Court.

INDICTMENT for obtaining goods under a false pretence, before ITolce, •/.. at Fall Term, 1898, of the Superior Court of Dabe County. Tlie indictment is as follows: The jurors for the State present on oath, that at and in the above State and County on or about the 12th day of July, 1897, the defendant, John 33.

The DkKBNdaNts were iudicted for larceny of a sheep, the property of a person to the jury unknown, with a count for receiving — tried before Ilolce, J., at Eall Term, 1898, of the Superior Court of Hyde County. There was no evidence of ownership, and the evidence of asportation was inferential. The State witness as to the occurrence was Sam Oredle, who testified: I was going home one Friday night in July, 1898, about 9 o’ clock, and saw two men with a sheep near an old house.

INDICTMENT for assault and battery, tried before Bryan, J., at September Term, 1898, of Watie Superior Court. Defendant and Eliza Ward were indicted for assault and battery on Laura Robinson. Eliza Ward introduced evi-deuce — the defendant Robinson introduced none; and his counsel claimed the right to open and close the argument. His Honor, as matter of discretion, allowed the State to open and conclude. Defendant excepted. Yerdict of guilty. Judgment and appeal.

INDICTMENT for carrying a concealed weapon, tried before Iiobinson, J., at November Term, 1898, of tbe Superior Court of Lenoie County. The defendant pleaded guilty, and was adjudged to be imprisoned four months and pay a fine of $200 and costs. . The defendant excepted: 1. That the judgment is éxcessive and contrary „ to the spirit of the Court .and the laxo. 2. That his Honor erred in imposing both fine and imprisonment. Defendant appealed.

'CRIMINAL ActioN for obstructing a road leading to a cliurcb. Conviction. Motion in arrest of judgment. Judgment alid appeal. STATEMENT OE THE CASE BY MR. JUSTICE CLARK.

Issue op Patepjstty, in a bastardy proceeding, tried before Robinson, J., at October Term, 1898, of Sampson Superior Court. . Tbe prosecutrix testified, tbat tbe defendant was tbe father of ber child, which was born June 2, 1898, and that it was begotten about August 22, 1897; that she never had connection with any other man than Zilla Blackman, the father of a former child, now dead — and the defendant.

<p>Judge’s Charge — Evidence.</p> <p>1. While the object of the Judge’s charge is to state the law, and to assist the jury in applying the facts, as found by them, to the law— the manner in which this is to be done must be left, to a very great extent, to the good sense and sound judgment of the trial Judge. — State v. Boyle, 104 N. 0., 800, doubted.</p> <p>2. On the trial of an indictment charging fornication and adultery committed in Catawba County, evidence tending to show criminal intercourse between the defendants in Caldwell County is admissible, not that they could be convicted for that, but to properly interpret the evidence tending to prove the offence in Catawba County.</p>

INDICTMENT for obtaining money under a false pretence, tried before Mclver, Jat November Term, 1898, of Foe-syth Superior Court. Tbe defendant excepted to tbe sufficiency of tbe evidence to support tbe charge, and lipón conviction moved for a new trial. Motion refused and defendant appealed from the judgment. The evidence is stated in the opinion.

<p>Indictment for Murder — 1st and 2nd Degree — Voluntary Intoxication.</p> <p>1. Voluntary drunkenness is never an excuse for the commission of a crime.</p> <p>2. If one charged with murder has premeditated and deliberately formed the intention to kill, and did kill the deceased, when drunk, the offence is not reduced to murder in the second degree.</p> <p>3. Of course, the killing and its manner, the intent, intoxication, how it comes about, and for what purpose drunkenness takes place, and the like, are questions for the jury under the Court’s instructions as to the law applicable thereto.</p>

' INDICTMENT for highway robbery, tried before Coble, J., at Spring Term, 1899, of Union Superior Court. The indictment charged that the robbery was committed upon one IT. A. Lowery in Union County, at and near a certain highway in said County, to-wit, the Monroe and Wingate road.

INDICTMENT for Mubdee, tried before Timberlalce, J., at August Term, 1898, of G-uileoed Superior Court. Tbe prisoner was indicted for the murder of Henry Wood, whom he shot and killed at Greensboro, N. 0., as was admitted. The evidence on the part of the State is succinctly stated in the opinion. It was admitted without objection. The defendant introduced no evidence.

<p>Costs — Defendant's Witnesses — State Case — Acquittal.</p> <p>1. The Code, sections 783, 744, 747 and 748. collated and construed together. places it in the discretion of, the presiding Judge, for reasons satisfactory to him. to refuse to direct the fees of witnesses for the State or for an acquitted defendant, in whole or in part, to he paid by the county, and from his decision no appeal can be taken.</p> <p>3. The State Constitution. Article I, section 11, exempts an acquitted defendant from payment of necessary witness fees of the defence, but does not require that they shall be paid by the public.</p>

<p>Indictment — Larceny—Second Offence — Appeal by State.</p> <p>1. Where the indictment for larceny charges the value of the property stolen to be less than §20, or the jury should so find, the imprisonment for the first offence can not exceed one year in the penitentiary or common jail, unless the larceny is from the person, or from a dwelling, by breaking and entering in the day time. Acts 1895, chapter 285.</p> <p>2. When a second conviction is punished with other or greater punishment than for a first conviction, the first conviction shall be charged as required in The Code, section 1187, so as to be passed on by the jury.</p> <p>8. Where the sentence imposed is plainly within the discretion of the Judge, he may properly have taken into consideration the fact that it was not the first offence.</p> <p>4. The State’s right of appeal is recognized but limited by section 1237 of The Code. State v. Hinson, 123 N. C., 755.</p>

INoictmeNT against the defendant for an assault with intent to commit a rape upon Emma Scott, also for a simple assault upon her. There was no evidence of an assault with intent to commit a rape, and bis Honor properly so instructed the jury. There was evidence applicable to the second count. The jury rendered a general verdict of guilty, and a sentence of 12 months imprisonment was rendered by the Court.

INDICTMENT for murder, tried before Goble, J., at Spring Term, 1899, of Gaston Superior Court. Tbe prisoner was indicted for tbe murder of Tbomas G. Falls. Tbe evidence is fully stated in tbe opinion. Among tbe special instructions asked by the prisoner were tbe following: 8. In no .aspect of the testimony and under no reasonable inference that can be fairly drawn from it, is tbe prisoner guilty of murder in tbe first degree. 9.

INDICTMENT against the Town Commissioners of Morgan-ton for failing to keep a public street of the town in proper repair, tried before L. L. Green, J., at Fall Term, 1898, of the Superior Court of Bubjke County. The indictment was as follows : The State oe Noeth Caeoeina — Bueee County. Superior Court, Fall Term, 1898.