Volume 125 — North Carolina Reports

Civil ActioN to recover damages for personal injury to the plaintiff caused by alleged negligence of the defendant, tried before Norwood Jat August Term, 1898, of Nobth-ampton Superior, Court. The issues relating to the cause of action were found in favor of the plaintiff.

Civil ActioN instituted by plaintiff against the defendant, Moye, for the adjudication of conflicting claims to real property, in the county of Craven, and heard, by consent, upon facts agreed, before Bryan, The complaint, among other things, alleged that the plaintiff was the owner of the land and that the defendant was in possession, setting up unfounded claims thereto. The answer of defendant Moye admits the possession, and controverts the claims of the plaintiff.

<p>Civil ActioN, originating in tbe Justice’s Court of ChowaN County, and carried by appeal to tbe Superior Court and beard before Bowman, J., at Spring Term, 1899, a jury trial being waived.</p> <p>. Tbe plaintiff was elected, in May, 1897, one of tbe Ooun-eilmen of Edenton for a term of two years, qualified and served, and claims $37.50 for bis services — it was conceded that be was entitled to that amount, if be was entitled to any pay at all, which tbe defendant denies. Upon tbe facts found by his Honor, judgment was rendered for the plaintiff, and tbe defendant appealed.</p> <p>Tbe facts found are stated in the opinion.</p>

PbtitioN of defendant for writs of certiorari, to be directed to Judge and Clerk of tbe Superior Court of Waee County for the settlement and tranmission of case on appeal by defendant in this cause, tried at April Term, 1899.

<p>Summons, Order of Arrest and Bail — Service of Oivil Process on a Prisoner in Jail.</p> <p>1. The sheriff can serve process anywhere in his county — the jail possesses no “privilege of sanctuary”; service of process upon a prisoner there is valid.</p> <p>2. The exemption of witnesses and jurors from civil arrest accorded by statute (Code, secs. 1367 and 1735), and of nonresident parties and witnesses voluntarily attending court here, on grounds of public policy, does not apply to parties arrested in criminal proceeding.</p> <p>3. Where the violation of a right admits both of a civil and a criminal remedy, the right to prosecute the one is not merged in the other. Code, sec. 131.</p>

<p>Widow — Minor—Dissent From• Will— Tear's Allowance— Members of the Family.</p> <p>1. In dissenting from ber husband’s will and applying for year’s allowance, the widow, being a minor without guardian, may be represented by next friend, duly appointed as prescribed by Rule 16, Superior Court, 119 N. C., 963, and in accordance with The Code, sec. 180.</p> <p>2. Where the testator provides for his infant children by a former marriage- — appointing a guardian of their persons and property, directing him to take them to live with him, and educate them out of the profits of the estate — -they do not constitute a part of the family, after his death, and such widow is not entitled to extra allowance for the support of her step-children.</p>

Ouaim /VNd Deliveiíy for a bale of cotton, commenced in Justice’s Court of NoRtjiamptoN County, appealed to the Superior Court, and determined before Dolce, J., at Spring Term, 1899. The action was commenced October 12, 1898. There were no written pleadings.

<p>PetitxoN of John S. McMahon, a prisoner in State prison, for writ of habeas corpus, preferreed to Hon . W. A. Mont-flOMiEX, Associate Justice of the Supreme Court. Writ awarded directed to the penitentiary authorities, and case heard before his Honor at Chambers on September 7, 1899.</p> <p>Upon the hearing, after argument on both sides, his Honor adjudged that the petitioner was not then entitled to his discharge, and remanded him into custody.' From this judgment the petitioner appealed to the Supreme Court. The grounds of the application for discharge are fully stated in the opinion.</p>

MotioN to amerce W. G.Burden,Sheriff of Bertie County, for failure to serve the summons on the defendant returnable to February Term, 1898 — the motion was made,upon notice, returnable to February Term, 1899, at which term judgment nisi was entered, and scire facias ordered returnable to September Term, 1899, when the rule was heard before Bowman, ■J., and discharged. The plaintiff excepted and appealed. The reasons influencing his Honor are stated in the opinion.

Civil. ActioN instituted in Franklin Superior Court, and beard upon motion of defendant before Moore, J-., at April Term, 1899, of Superior Court of FeaNKXIN County, to remove the cause for trial to Superior Court of WilsoN County. The plaintiff lived in Eranldin County — the defendant lived in Wilson County, where his testator died, and where defendant qualified as executor. The motion was made under sec. 193 of The Code.

Civil ActioN for legal and equitable relief instituted in the Superior Court of QraveN County by the plaintiff J. J. Howard, a resident of this State, who had a life insurance in the defendant Mutual Life Insuran.ce Company, a foreign corporation, of State of New York. The plaintiff demanded judgment: 1. For $155.65, the illegal part of the assessments collected from him on mortuary calls under resolutions of 1895 and 1898, with interest from the dates of payment. 2.

Own, ActioN for trespass on land tried before Uohe, J., and a jury at Spring Term, 1899, of the Superior Court of Bertie Oounty. The alleged acts of trespass — entering upon the land, 80 acres, claimed by plaintiff, and cutting and carrying timber from it were not controverted by defendants — but they did controvert plaintiff’s title.

Civil ActioN for value of trees cut from land of plaintiffs by W. J. Oapehart, testator of defendants, in excess of $1,177, debt due bim, as per agreement. Tried before Jlolce, J., at May Term, 1899, of Beetie Superior Court upon the plea of res judicata — other defenses by consent being reserved. Ilis Honor gave judgment in favor of plaintiffs upon this issue, and defendants excepted, and appealed.

<p>Will — Devise—After Acquired Land — Oode, Bee.</p> <p>1. In construing wills, .tbe intention is the controlling fact, to be carefully ascertained.</p> <p>2. Prior to the statute (Code, sec. 2141), the title of no land after the date of the will could pass thereby; but since the statute, all lands owned by the testator at his death will pass, unless a contrary intention shall appear by the will.</p> <p>3. Where a testator uses general terms — as “all of my estate” — or “all of my lands or real estate” — then,the devise will speak at the date of the death, as a general rule; but, where he refers with particularity of description to a specific subject of gift, showing that an object in existence at the date of his will was intended, and referring to the state of things existing at that time and not at his death, then the operation of the general rule is excluded.</p>

MotioN to be made parties to this action pending in Superior Court of Bektie County, at Spring Term, 1899, before Holce, J., by R.' C. Bazemore and Francis D. Winston. Motion denied, and they excepted, and appealed. His Honor settled tbe case as follows: This is a civil action tried at the Spring Term of Bertie Superior Court in 1899, before PLolce, J., upon the motion of R. C. Bazemore and Francis D. Winston to be allowed to become parties to the action.

Civil ActioN determined before No/re, J., at Spring Term, 1899, of the Superior Court of Edgecombe County. The complaint demanded the payment of $3,970.16 for digging a well 500 feet deep, at Rocky Mount, under contract with defendant, and alleging the insolvency of defendant, asked for a restraining order and appointment of a receiver.

Civil AotioN to recover damages for wrongful personal injuries inflicted by defendant R. W. Collins, also to set aside alleged fraudulent conveyance of bis lands, in contemplation of tbis action, to bis codefendants, originally tried before Timberlake, J., and a jury at April Term, 1897, upon which trial issues were found in favor of plaintiff, and damages assessed at $350.

Civil Aotiow to enforce specific performance of certain alleged traffic contracts and agreements in regard to freights and to enjoin a threatened refusal by the defendant to carry opt the provisions of said contracts and agreements, heard before Brown, J., upon pleadings and affidavits at February Term, 1899, of the Superior Court of Waicb County. The motion of defendant was to dissolve an order of restraint which had been granted in the cause.

<p>Probate — Oaveai—Appeal—Practice.</p> <p>1. Objectors to the probate of a will, who attend before the Clerk and contest the will, with counsel and evidence, are virtually caveators, and may be so termed.</p> <p>2. The probate is a proceeding in rem, of which the statute confers jurisdiction on the Clerk and Court, and to which there are no parties, strictly speaking, who can withdraw or nonsuit the case. Public policy and the law require a speedy adjudication, regardless of objecting persons.</p> <p>3. Where a paper writing was seen in testator’s possession before his death and found among his valuable papers the next day after his death — the possession of this instrument, in due form on its face, at his death in prima facie proof that it is in fact, what it purports to be, his last will and testament, subject of course to be rebutted, as in other cases of disputed fact.</p> <p>4. The admission of irrelevant testimony will not authorize a new trial, unless it appears that the objecting party was prejudiced thereby.</p> <p>5. Where, upon an appeal from the Clerk, an issue of devisavit vel non is submitted to the jury — who say, “Yes, every part thereof” — the judgment should direct the Clerk to take other necessary proceedings therein, as required by law.</p>

<p>Claim, and Delivery — Counterclaim—Damages—Practice.</p> <p>1. Where claim and delivery are sued out — complaint filed — also answer, denying title of plaintiff, and containing a counterclaim for damages by reason of the unlawful seizure, to which no reply is filed — the question of damages can not be considered until after the issue as to the lawfulness of the seizure is determined.</p> <p>2. Such counterclaim is inadmissible in this action, as it did not arise out of the same cause of action, and did not exist at the commencement thereof.</p>

<p>Civil AotioN to set aside a deed for want of consideration and alleged fraud and intimidation, tried before Bryan, J., and a jury at March Term, 1899, of OeaNgb County.</p> <p>The complaint alleged a want of consideration, and false representations and threats of prosecution by the defendant towards the plaintiff.</p> <p>The answer denied the allegations of the complaint. Both parties testified, and each contradicted the other, and sustained by his evidence the allegations of his own pleadings.</p> <p>Two issues were submitted to the jury. One as to the want of consideration; the other as to the intimidation.</p> <p>There were no special instructions asked by either side.</p> <p>Among other things, his Honor instructed the jury that the burden of proof of both issues rested upon the plaintiff.</p> <p>Plaintiff excepted.</p> <p>The jury found that there was no consideration and no intimidation. Both sides claimed the judgment of the Court.</p> <p>ITis Honor adjudged that the defendant go without day, and this action is dismissed.</p> <p>Plaintiff excepted, and appealed to the Supreme Court.</p>

<p>Indebtedness of State Prison — Appropriations—Construction of Statute — Act 7th March, 1899 — Statutes In Pari Materia — Mandamus.</p> <p>1. The Act of 7th March, 1899, (Acts 1899, chap. 607) authorizing the issue of State bonds to the amount of $110,000, was intended to raise funds for the purpose of paying off indebtedness of the State prison incurred prior to January 1, 1899.</p> <p>2. There were other statutes — Act of 28th February, 1899, (chap. 342), and Act of 8th March, 1899, (chap. 679) to defray the immediate current expenses and the expenses of running the State prison for the years 1899 and 1900 — the Act of 28th February, appropriating $5,000 — the Act of 8th March, appropriating $50,000 for each of the years of 1899 and 1900.</p> <p>3. To arrive at, the true meaning and purpose of a statute, other statutes, in pari materia, are to be considered and construed together — this rule of construction is to be applied to the statute of 7th March, 1899.</p> <p>4. As it is the duty of the State Treasurer to keep his accounts, showing the transactions of each fiscal year, ending 31st December, he has no right to pay out money except upon proper warrants drawn upon the proper funds in the treasury.</p> <p>5. The State Treasurer is not liable to a mandamus for refusing to pay a warrant improperly drawn, and he is entitled to a mandamus to enforce the drawing of proper warrants upon the proper funds before paying them, as they are his vouchers.</p>

Civil ActioN demanding the issue of a duplicate 'certificate of stock in the defendant corporation to replace one owned and lost by plaintiff, tried before Bryan, J., at March Term, 1899, of Superior Court of Dubham County.

PossbssoRy ActxoN for land, tried before Timberlahe, J., at August Term, 1898, of the Superior Court of Person County. The plaintiff claimed that he was the owner, and entitled to the immediate possession of a tract of TJ acres of land, in possession of defendants.

<p>Civil ActioN for libel, heard upon demurrer, before Bryan J., at April Term, 1899, of the Superior Court of GrRANVILLE County.</p> <p>The complaint alleged slanderous words to' have been spoken by defendant Kilgo of and concerning' the plaintiff, and libelous publications to have been made by all the defendants concerning him.</p> <p>A demurrer was filed by defendants for misjoinder of causes of action.</p> <p>Demurrer was sustained, and the action was dismissed by his Honor.</p> <p>Defendants excepted and appealed.</p>

CONTROVERSY without action, submitted, under Tbe Code, to his Honor Bryan, Jat May Term, 1899, of Chatham Superior Court, for the construction of the will of Thomas A. Brooks. copy or will.

<p>Demurrer Under Act 1897, Chap. 109, (Since Amended, Act 1899, Chap. 181) — Evidence of Plaintiff, How Considered — -Tax Boohs — Declarations of Parly in Possession.</p> <p>1. In cases of demurrer and motions to dismiss under Act of 1897, the evidence must he taken most strongly against defendant.</p> <p>2. If there is more than a scintilla of evidence tending to prove the plaintiff’s contention, it must be submitted to the jury.</p> <p>3. Tax book admissible evidence to go before the jury, entitled to some weight, it may be slight, but to be determined by them.</p> <p>4. Declarations of a party in possession of property are admissible for the purpose of qualifying such possession, but not for the sole purpose of fixing pecuniary responsibility upon a third party, not then present.</p>

<p>ApplicatioN to continue to the final hearing a restraining order made in this cause, pending in the Superior Court of Duhi-iam County, to Bryan, J.</p> <p>Two of the plaintiffs, Rowland and Cooper, are debtors.of the other plaintiffs, also of the defendants (except Markham, Sheriff), all secured by various mortgages on different tracts, at different times. The defendant Carr, in addition to his mortgage debt, is also the assignee of a judgment against them, of prior lien to any of the mortgages; and execution has been issued, and is in the hands of Markham, Sheriff, for service.</p> <p>The object of this action is to require Carr and the sheriff to levy upon and sell the land of the debtors in the order in which it was conveyed in the several mortgages.</p> <p>The complaint filed and used as an affidavit, is as follows:</p> <p>1. That Mrs. R. V. James is the guardian of certain infant children and as such several years ago loaned to W. R. Cooper the sum of $1,315.00, taking his note therefor, and that there is due her by said Cooper the said sum of $1,315.00, with interest upon the same from the 26th day of August, 1897.</p> <p>2. That several years ago, the plaintiff Geo; W. Watts loaned to Rowland & Cooper the sum of $2,000.00, and that there is due him thereon the sum of $1,600.00, with interest from.day of., 1897.</p> <p>3. That at the March Term, 1897, of Durham Superior Court one W. O. Blacknall obtained a judgment against said Rowland & Cooper for $1,250.00, interest and cost, which was duly docketed in Durham County.</p> <p>4. That Rowland & Cooper at said time constituted a firm, and were engaged in a general leaf tobacco business. That said firm found itself embarrassed much above its ability to pay, and, therefore, the mortgages and other encumbrances hereinafter referred to, were executed by the said firm and the individuals composing tbe same.</p> <p>5. That on the 26th day of August, 1897, W. R. Cooper and wife executed to Geo. W. Watts a deed of trust to a one-half individual interest in and to the prize house and lot of Rowland & Cooper, on the west side of McMannen street, in Durham, N. 0., (for an accurate description of which reference is made to book 26, page 406, of mortgages of Durham County), in order to secure the above-recited loan of $1,600.00, and that on the same day the said W. R. Cooper and wife executed to Mrs. R. V. James, guardian, a mortgage on about fifty (50) acres of land in Patterson Township, Durham County, where Ed. Cooper now resides, (for an accurate description of which see book of mortgages No. 26, page 409), in order to secure the above-recited indebtedness of $1,315.00.</p> <p>6. That thereafter, to-wit, on the 4th day of September, 1897, said Rowland & Cooper and their respective wives being indebted to J. S. Carr in the sum of $835.50 and also to the Morehead Bank and the Eirst National Bank in large sums, executed to E. C. Murray, Trustee, a deed of trust upon 2 lots of land in North Durham, Nos. 24 and 25, of the Link’s survey, and also upon a brick store of said Cooper on the north side of Main street, all of said property being accurately described in book of mortgages 26, page 433, a copy of said deed of trust being hereto attached, and marked Exhibit “A”.</p> <p>7. That in addition to said instruments and in order to further secure their said creditors and particularly to pay off the said Blacknall judgment, the firm of Rowland & Cooper, during the fall of 1897, executed and delivered a transfer of all its interest in certain property, lying near Murphy, N. C., and which previously belonged to the Murphy Improvement Company, the said interest being worth about $500.00, and they likewise executed for the same purpose an instrument conveying a judgment for about $1,000.00 which Revis & Baxton, attorneys, state is valid and collectable on certain lots in Johnson City, Term., which cost said'firm about $30,000.00, both of which last-named papers were delivered to the Morehead Bank at Durham, N. O., or its agents. That such papers named certain persons therein which were competent to act and directed them to sell the property therein described, and to retain the proceeds to be used in paying off the Blacknall judgment and thereafter certain other creditors named therein. The plaintiff demands a production of said papers at the trial of this action, and prays that ’the same may be made a part of this complaint.</p> <p>8. That since the Blacknall judgment was obtained, to-wit, within the past 30 days, the same has been purchased by and assigned to J. S. Carr, and the plaintiffs here offered to pay off said judgment, principal, interest and cost, and also the Morehead mortgage on the Cooper store for $3,000.00, provided that the'said Carr and Morehead Bank would assign the same to the plaintiff Watts, with which request they have refused to comply.</p> <p>9. That the said Murray has been requested to sell under the deed of trust of the 4th of September, and he has refused so to do.</p> <p>10. That the property conveyed to the said Murray is well worth $6,000.00, which amount would pay off the first mortgage of about $3,000.00, to Mrs. Morehead, now held by Morehead Bank, and also the debt to said Carr and James, and nearly all of the Blacknall judgment; and that the Murphy holdings and the Johnson City property are both available and more than ample to pay off the balance due on the Blacknall judgment, the taxes and all other-debts of Rowland & Cooper, excepting a portion of their indebtedness to the Morehead Bank and the Eirst National Bank.</p> <p>11. That the said J. S. Carr for and on behalf of himself and the Eirst National Bank, of which he is President, and the Morehead Bank are endeavoring to reverse the equitable and legal order in which the property of said Rowland'& Cooper shall be sold by the sheriff in order to pay off the debts of said firm and of the individuals composing the same. That to this end they have instructed the sheriff of Durham County to sell, and unless restrained by this Court, he will sell on the 6th of March, 1899, the following property of said Rowland & Cooper, or either of them, to-wit: first, the Prize House lot hereinbefore described; secondly, the Alston Avenue tract of fifty (50) acres; third, the excess over the Cooper homestead; fourth, the excess over the Rowland homestead; not selling or offering to sell any lands upon which said Carr or either bank holds a mortgage. •</p> <p>12. That if said sale is carried out tire interest of the plaintiffs Janies and Watts, as above set out, will be destroyed, and they will lose nearly their entire debts, and thereby a preference will be given to the Morehead Bank and the Eirst National Bank, which was not contemplated by said Rowland & Cooper, and contrary to their directions as set out and explained in the instruments hereinbefore referred to, and that the plaintiffs James and Watts have equities which are prior in time and superior to those of the defendants in the lands proposed to be sold by the sheriff as aforesaid.</p> <p>13. That the next term of Durham Superior Court begins on March the 2Yth, and the plaintiffs are advised that no legal sale can take place during the month of March until during the first 3 days of said court.</p> <p>14. Plaintiffs again agree to pay off the Blacknall judgment, principal, interest and cost, provided it be transferred to said Watts, and hereby tender a sum sufficient to accomplish said transfer. They likewise agree to pay off the mortgage on the Cooper store, provided the same be transferred to said Watts, and hereby tender a sum sufficient to accomplish said payment and transfer.</p> <p>15. That said J. S. .Carr, Morehead Bank and First National Bank elected to take under said aforementioned instruments, and took thereunder, and are estopped to deny the validity of same or the order of sale therein provided. Whereof plaintiff pray that said sale be restrained, and that the property hereinbefore described shall be sold in the order in which it was mortgaged to the respective mortgagees and trustees, and plaintiffs pray, that when this complaint is duly verified it may be deemed an affidavit in the cause, and as in duty bound they will ever pray.</p> <p>16. That suit has been begun in Durham Superior Court in favor of plaintiffs and against defendants as above.</p> <p>W. TI. Rowland, being duly sworn, states that the facts set forth in the foregoing complaint are true, except as to such as are stated upon information and belief, and as to those, he believes them to be true. W. H. RowlaNd.</p> <p>February 24, 1899.</p> <p>Sworn to and subscribed before me, February 27, 1899.</p> <p>C. B. G-REEN, G. S. G.</p> <p>His Honor, Bryan, J., at the hearing at Durham, March 27, 1899, ordered that the restraining order be dissolved and the motion for injunction to the hearing be denied.</p> <p>Plaintiffs excepted, and appealed.</p> <p>The plaintiffs then prayed the Court to indicate what amount of bond would be required to stop the execution sale, pending the appeal. His Honor declined to indicate the amount of bond, or to stop said sale pending plaintiff’s appeal to tbe Supreme. Plaintiffs excepted, as an additional ground for tbeir appeal.</p>

Civil ActioN tried before Brown, J., at April Term, 1899, of Waee Superior Court. Tlie complaint alleged that the testator of defendants, W. IT. Pace, was-plaintiff’s trustee under a deed of trust for benefit of creditors, made on 22nd January, 1890, with a provision of 4 per cent commissions to the trustee upon receipts and disbursements.

Civil, ActioN beard before Robinson, upon exceptions to report of referee filed by defendants, at November Term,, 1898, of tbe Superior Court of GebbNe County. Tbe plaintiff John H. Jenkins on tbe lOtb August, 1888, along with, bis wife, Mary E. Jenkins, since dead, executed a mortgage deed on the wifeJs land to secure a note for $150 signed by them botb for a debt of tbe husband payable on 1st January, 1890, to A. N. Daniel, testator of defendant Ida. M. Daniel.

Civil ActioN for tbe penalty of $100, beard upon appeal from tbe Justice’s Court, before Robinson, J., at January Term, 1899, of tbe Superior Court of Moobe County. Tbe plaintiff complains for tbe recovery of $100 penalty due under sec. 3816 of Tbe Code, for failure of tbe defendants to make tbe required annual statement of taxes and expenditures between May, 1897, and May, 1898. Tbe defendants denied tlieir liability.

Civil ActioN to recover laud, tried before Bryan, J., at September Tterm, 1899, of PeNdeb Superior Court, and beard upon tbe pleadings, a jury trial having been waived, except as to damages in case tbe Court should bold that plaintiff is entitled to recover. Tbe pleadings are substantially stated in the opinion. His Honor adjudged that the plaintiff take nothing by his action, and that the defendants go without day and recover of plaintiff costs of suit.

PROCEEDING for reallotment of homestead, of defendant, before tbe Clerk, under Act of 1893, chap. 149, upon alleged increase of 50 per cent in value since last allotment, heard upon affidavits, and from his decision in favor of plaintiff there was an appeal by defendant to the Judge, which was tried before Timberlalce, J., at September Term, 1899, of the Superior Court of RichmoNd County, who rendered the following judgment: This cause coming’ on to be beard, and being beard…

Civil Actios beard before Robinson, J., at May Term, 1899, of EiohmoNd Superior Court, upon a motion by defendants to set aside a judgment rendered at April Term, 1899, for excusable neglect, under sec. 274 of Tbe Code. Motion beard upon affidavits and counter-affidavits.

MotioN to set aside judgment in proceeding for partition of land, heard on appeal from the Clerk of Mooke Superior Court, by Timberlahe, J., at Chambers, in Rockingham, N C., on October 19, 1899. The motion was made before the Clerk by defendant Martin Rhodes, a nonresident, brought in by publication, on the ground of inequality in the division.

Civil AotiÓN in tbe nature of quo warranto, beard upon tbe pleadings by Bowman, J., at May Term, 1899, of Pam-lico County, for tbe recovery of tbe office of Chief Inspector, under Act 1891, cbap. 13, to promote the oyster industry in North Carolina.

<p>PbtitioN to rehear dismissed.</p>

Special PeoceediNg- to sell land for assets, beard before Mclver, ,7., at Superior Court of MoNtgomeby County, Spring Term, 1898. His Honor rendered judgment against tbe plaintiff, wbo excepted and appealed. Case on Appeal.

Civil. ActiON in the nature of quo warranto to try the title to the office of County Board of School Directors of Davidson County, heard upon the pleadings by Robinson, The complaint alleged that the plaintiffs were rightfully entitled to the office under provisions of the Act of 1891, chap. 108, and were wrongfully excluded therefrom by defendant claiming under legislation of 1899.

Civil AotioN for malicious prosecution, tried before Bob-insonj J., and a jury at March Term, 1899, of CumbeelaNd Superior Court. The plaintiff, William Wright Jones, was arrested upon a State warrant sworn out by a detective of the defendant, upon a charge of breaking the insulators and rocking the railroad train of defendant.

<p>Civil ActioN upon a note under seal, executed by defendants to M. A. Walker, deceased wife of W. A. Walker, tried' before Shaw, J., at May Term, 1899, of the Superior Court-of Iebdell County.</p> <p>The execution of the note was admitted, also partial payments thereon. The defendants allege that the balance of the-note was adjusted by them with the husband, acting as agent of his wife, in her lifetime.</p> <p>The proposed evidence of agency, upon objection by plaintiff, -was excluded by the Court.</p> <p>Defendants excepted. The excluded evidence is fully adverted to' in the opinion.</p> <p>There was a verdict for plaintiff for balance due on note.. Judgment accordingly, and appeal by defendants.</p>

<p>Civil. ActioN in tbe nature of quo warranto, tried before Coble, J., at August Term, 1899, of tbe Superior Court of Buncombe County, and beard upon tbe pleadings.</p> <p>The complaint alleged that he was duly elected Solicitor of the Criminal Circuit Court of Buncombe, Madison, Haywood and Henderson counties, in November, 1896, and that there was added thereto the county of McDowell by the Act of 1897, chap. 7, and that by the Acts 1899, chaps. 371 and 594, his circuit was enlarged by the addition of Yancey, Eorsyth and Burke, and that by said amendments he became rightfully Solicitor for all said counties, but was ousted by the defend-amts claiming to be entitled under tbe legislation of 1899, and the appointment of tbe Judge, respectively, as follows: G. G. Eaves, claims to be Solicitor of McDowell County; G. E. Gardner, for Yancey County; E. A. Griffith, for Eorsyth County, and I T. Avery, for Burke County.</p> <p>The answers of defendants claim that they are entitled to the office of Solicitor of the Western Criminal District Court, each in his own county, by virtue of Acts of 1899, chaps. 371 and 594, and by appointment of the Judge, made in accordance therewith.</p> <p>His Honor, upon the pleadings, rendered judgment in favor of plaintiff against each of the defendants, respectively, and they appealed.</p>

Oivit, ActioN in the nature of quo warranto, heard upon the pleadings by Coble, J., at August Term, 1899, of the Superior Court of Buncombe County, for the recovery of the office of Solicitor of the Criminal Court of Buncombe County.

<p>Tub plaintiff sues for the office of Solicitor of Criminal Court of Madison County, and at July Term, 1899, of the Superior Court of Madtsokt County, judgment was rendered in bis favor by Coble, J. Defendant appealed.</p> <p>Tbe decision of tbis cause, according to tbe opinion, is governed by tbe judgment in McCall v. Webb, at tbis term.</p> <p>Clark, J., dissents.</p>

Civil ActioN for the value of a horse, tried before Robinson, J., at October Term, 1899, of the Superior Court of MONTGOMERY County. By consent, his Honor found the facts, leaving it to the jury to ascertain the value of the animal, which they did, at the sum of $6C.G6 2-8. Facts Found by the Court. 1. That the horse mentioned in the complaint was taken from the possession of the plaintiff in Moore County, which is not a stock-law county, without his knowledge or consent. 2.

<p>Civil ActioN in the nature of quo warranto for the office of County Superintendent of Schools of Davidson County, heard before Robinson, J., at Fall Term, 1899, upon the pleadings. Judgment for plaintiff. Appeal by defendant The facts appear in the opinion.</p>

Civxt. ActioN in the nature of quo warranto, instituted in Ware Superior Court, at July Term, 1899, before Moore, J., and a jury trial being waived, was by consent, heard upon the pleadings.

<p>Civil Actios on the administration bond of D. G. Hol-brooks, administrator of Harriet N. Holbrooks, his wife. H. G. Holbrooks having died, his executor, Joseph Young, is made a party-defendant. The cause was heard before Robinson-., J., at October Term, 1899, of the Superior Court of OabaRRus County.</p> <p>The complaint alleged that there was a fund in the office of the Superior Court Clerk which belonged to plaintiff’s mother, Harriet N. Holbrooks, at the time of her death; that her husband, D. G. Holbrooks, took out letters upon the estate of his wife, and under order of court, the Clerk paid to him the money, which he appropriated to his own use, being $1,166.66, less $75 allowed the Clerk.</p> <p>The fund was derived from the sale of land sold by the Clerk and Master in Equity, and turned over to the Clerk for investment; the interest to be paid to one Elizabeth J. Allison for life, and the principal at her death, to belong to Silas Young Allison, the first husband of Harriet N. Holbrooks, to whom at his death he devised his interest in the fund. Elizabeth J’. Allison is also dead. The plaintiff Emma B. Raf-ferty (formerly Holbrooks), is the only child and heir at law of Harriet N, Holbrooks, and her contention is, that the fund being derived from the judicial sale of land is realty, and that as heir of her mother, she is entitled to receive it, and is entitled to hold the administration bond of D. G. Hol-brooks responsible for it.</p> <p>His Honor ruled otherwise, and intimated that in no aspect of the evidence could the plaintiff recover, and in deference to this intimation of the Court, the plaintiff excepted, submitted to a nonsuit, and appealed to the Supreme Court.</p>

Ctvtl Actiojst upon a promissory note, tried before Shaw, J., at Spring Term, 1899, of the Superior Court of RANDOLPH County. A single issue was submitted to the jury. Bid the defendant intestate execute the note set out in the complaint ? To which the jury made answer: “No.” There was judgment in favor of defendants, from which the plaintiff appealed.

<p>Negligent Killing — Measure ■ of Damages — Inadequacy of Damages — Kvidence—New Trial on Single Issue.</p> <p>1. While the trial Judge could set aside a verdict where it clearly appears that the amount assessed as damages is grossly inadequate, yet his decision is not reviewable. Benlon v. Gollins, at this term.</p> <p>2. A safe precedent on measure of damages may be found in Benton v. Railroad, 122 N. C., 1007.</p> <p>3. The plaintiff for herself, as witness, having testified that her intestate, when he served as engineer, received the pay of an engineer, was properly asked what an engineer’s pay was at the time he served as such.</p> <p>4. Evidence concerning the skill of the deceased in a former employment, different from that in which he was engaged at the time of his death, and which was more remunerative, is competent, as tending to show his skill in mechanic arts. Such testimony could not fix the rule of damage, and would have to be considered by the jury along with the age. of deceased, his habits, character, industry, prospects of life, facilities for making money, and business he was employed in of various kinds, the end of all being to enable the jury to get at the pecuniary worth of the intestate to his family.</p> <p>5. Evidence as to the board paid by intestate at his father’s home . was competent, as-showing carefulness in personal expenditures, and how much for that part of his living should be taken off his gross income.</p>

Civil ActioN to enjoin a foreclosure sale and for a reference and account. The restraining order was issued, reference ordered, and account taken and reported. The cause came up for final hearing, upon exceptions by the plaintiff, before Shaw, J., at January Term, 1899, of the Superior Court of OabaReus County.

In the Mattee of the will of Henry Allen. Issue of devisavit vel non, tried before Robinson, J., at the Superior Court of Bladen County, Spring Term, 1899. The instructions of his Honor, excepted to by propounders are stated in the opinion. The jury found against the will; judgment accordingly; appeal by propounders.

Cxvn. AotioN to recover damages for personal injury alleged to have been sustained through the negligence of defendant, while plaintiff was assisting in unloading one of its vessels; tried before Robinson, Jat Pall Term, 1898, of the Superior Court of New .IIaNOveR County.

Civil ActioN in the nature of quo warranto to try the title to County Board of School Directors of Granville County, heard upon the pleadings before Brown, J., as of July Term, 1899, of GtRANViui.e Superior Court. Tbe plaintiffs claimed the right to the office under the legislation of 1891, chap. 108, and proceedings had in accordance therewith, and that the defendants had usurped the office under color of legislation of 1899, chap. 3, chap. 374, chap. 732.

<p>Bilateral 0ontract — 0consideration.</p> <p>1. Where an agreement, signed by both parties, is to be for twelve months from March 1, 1898, and with the privilege of renewing for three years, it is a bilateral contract, and the privilege of renewal is not confined to either party.</p> <p>2. Mutual promises are mutual considerations.</p>

Civil ActioN in the natui*e of quo warmnto to try the title to the office of County Board of School Directors for Chatham County, heard upon the pleadings by Brown, J., at September Term, 3 899, of Chatham Superior Court.

Api LiCATiON by motion in tbe cause, made upon affidavit, by Newton Robinson, administrator of John A. McDowell, for injunctive relief against an execution issued against bis intestate, made to McNeill, J., at Chambers, wbo granted order of restraint, and transferred tbe bearing to Robinson, J.,, and it was beard before him, as of March Term, 1899, of tbe Superior Court of Bladen County, upon affidavits on both sides.

Civil ActioN for breach of contract in failing to pay for goods, sold by defendant as agent of plaintiff, tried before Bryan, J., at March Term, 1899, of the Superior Court of Dueiiam County. The plaintiff resided in Durham County, the intestate of defendant resided in Orange County, and to secure his contract, he and his wife, Bettie Harris, gave a mortgage to plaintiff on a tract of land in Orange County, also a note for $1,000.

OrviL ActtoN upon a running account, submitted on appeal from Justice's Court of Cumbeklastd County, to Robinson, J., at May Term, 1899, of the Superior Court, and judgment rendered by him in favor of plaintiff under circumstances stated in the opinion. Defendants excepted and appealed.

Civil. ActioN for damages for malicious prosecution, upon a charge of embezzlement, tried before Shaw, at March Term, 1899, of the Superior Court of RaNDoupu; County. The defendant introduced no evidence. The testimony tended to show, among other things, that the criminal prosecution had been compromised by the parties, and in consequence thereof the action had been dismissed by the magistrate, and the accused discharged. Issues Submitted to the -Jury. 1.

<p>Eoeegeosuee PROCEEDINGS pending in the Superior Court of Wayne County, at October Term, 1898, before Bryan, J. The land, consisting of three tacts, had been sold by the commissioner, and the fund was in hand. A petition in the cause was filed by A. T. Grady and J. H. Morris, two judgment creditors of defendant Samuel 0. Casey; the debt due Grady was $59.65, that due Morris was $48.12. The plaintiffs II. Weil & Bros., held a mortgage on two of the tracts, known as the'“Creek tract” and the “Home tract,” to secure a debt of $2,126.90; and this mortgage debt was prior to the lien of the judgment debts due petitioners. After the docketing of the judgment, Casey bought a third tract, known as the “Raynor tract,” part of the purchase, $50, he borrowed from the plaintiffs, and on the same day of the purchase he executed a mortgage to the plaintiff, securing the $50, and also as an additional security for the $2,126.90 due the plaintiffs upon the first mortgage. All three of the tracts were sold by the commissioner, and did not realize sufficient to pay off the mortgage debts and the judgments. The Ray-nor tract brought $34-0. The plaintiffs, Weil & Bros., contended that they were entitled to the whole fund; the petitioners, while admitting that the plaintiffs were entitled to the proceeds of sale of the first two tracts and to $50 advanced as part of purchase money of the Raynor tract, contended that their judgment lien on the Raynor tract was superior to the mortgage lien of the plaintiffs on that tract, and that the judgments should be paid out of the balance of proceeds of sale of the Raynor tract, and the residue only belonged to the plaintiffs.</p> <p>TIis Honor adjudged that the petitioners were not entitled to the relief prayed for and that their petition be dismissed with costs.</p> <p>The petitioners Grady and Morris excepted, and appealed.</p>

ActioN for an injunction to enjoin tlie issuing of town bonds by Fayetteville to establish and operate a system of electric lights, also a system of water-works and sewage, heard before Timberlahe, J., at September Term, 1899, of OuMBERuand Superior Court.

Civil, Action begun in the Iustice’s Court to recover certain taxes alleged to have been improperly paid to the tax collector of Morganton, and beard on appeal before Bowman, J., upon admitted facts, at Fall Term, 1899, of Bubke Superior Court. His Honor rendered judgment for tlie plaintiff, and defendant appealed. The agreed facts are recited in the opinion.

Civil, Actio® to recover four separate tracts of land of 300 acres each, tried before Allen J., at Eall Term, 3899, of YaNoicy Superior Court. ' It was admitted that the paper title of the plaintiffs cov-' ered the land in suit, and that defendants were in possession of part thereof. The defendants claimed the land under a tax title.

<p>Civil AotioN for injuries resulting in the death of intestate, J ames E. Powell, alleged to have been caused by negli:gence of defendant, tried before Bowman, J., and a jury, at Fall Term, 1899, of the Superior Court of Bunios County.</p> <p>The defendant denied the allegations of negligence, and alleged contributory negligence.</p> <p>At the close of plaintiff’s evidence, the defendant moved to nonsuit the plaintiff.</p> <p>Motion refused, defendant excepted.</p> <p>At the close of defendant’s evidence, the motion to non-suit was renewed, and was again refused. Defendant excepted.</p> <p> Issues. </p> <p>1. Was the plaintiff’s intestate killed by the negligence of the defendant? Answer. “Yes.”</p> <p>2. Did plaintiff’s intestate, by his own negligence, contribute to his death, as alleged in the answer? Answer. “Yes.”</p> <p>3. If plaintiff’s intestate, by his own negligence, contributed to his killing, could the defendant, notwithstanding the negligence of said intestate, have prevented the killing of said intestate by the exercise of care on its part? Answer. “Yes.”</p> <p>4. What damage, if any, is plaintiff entitled to recover? Answer. “$700.”</p> <p>There was no exception to the evidence or the charge.</p> <p>An epitome of the evidence is contained in the opinion.</p> <p>Judgment was rendered for plaintiff, and defendant appealed.</p>

<p>Oivn. AotioN for mandamus to the defendants commanding them to hear the application of plaintiff and to grant to him license to retail spirituous liquors in Morganton, heard before Allen, J., at CHAMBERS in Morganton, on 22nd July, 3 899. The mandamus was refused. Plaintiff excepted and appealed.</p> <p>The circumstances are fully stated in the opinion.</p>

Civil Actio N, beard upon appeal from Justice’s Court, before Siarbuclc, J., at Spring Term, 1898, of McDowell Superior Court, upon exception to report of the referee, by plaintiff. The defendant filed no exceptions; the plaintiff abandoned, all except a single exception relating to a credit of $32.90, which, if allowed defendant, would overpay plaintiff’s account by $1.79, otherwise, defendant would be owing plaintiff $31.11.

Civil, ActioN to correct a former judgment of tbe Court, and to stay the execution in the meantime, heard before Shaiu, J., at Fall Term, 1899, of Wilkes Superior Court. Sarah Moore had sued one N. 0. Anderson in the Justice’s (Hurt for a steer, and recovered judgment against Anderson, who appealed to the Superior Court, and gave Henderson as security on the bond to stay execution in sum of $25.

Civil AotioN for the possession of land, tried before Allen, J., at Spring Term, 1899, of Wilkes Superior Court. The defendant disclaimed possession and moved to nonsuit the plaintiff under Act 1897, chap. 109, for failing’ to offer evidence tending to prove it. Motion allowed. Plaintiff excepted and appealed. The evidence appears in the opinion.

Civil Aoticw to recover loss by fire upon contract of insurance, tried before Shaw, J., and a jury, at Eall Term, 1899, of Stokes Superior Court. The issues, evidence, charge and exceptions by defendant are stated in the opinion. There was verdict for plaintiff. Judgment according to verdict. Appeal by defendant.

Mr. Justice ClaeK states the case as follows: Appeal from Allen, J., at Spring Term, Subby Court. The plaintiff filed an affidavit for a restraining order which is treated as a complaint, wherein he alleged that the plaintiff was, in 1892, the owner of a tract of land, described in the complaint, and at the same time one J. A. Danally was the owner of a tract of land — this last tract was encumbered by a mortgage to the defendant.

Oiviu Actiou on the official bonds of M. A. White, Sheriff of Iredell Oountv, for wrongfully selling’ plaintiff’s land for taxes, tried before Robinson, Jat August Term, 1899, of the Superior Court of Ttcedtselt, County. The purchaser of the land, 31 acres, was afterwards made a party and filed his answer.

<p>Petition for Dower — -Dissent From Will — Six Months — The Gode, Sec. 2] 08.</p> <p>By statute, Code, sec. 2108, the widow is allowed six months in which to dissent from her husband’s will, nor will she he precluded from the exercise of this legal right, hy any agreement, even under seal, which she may he induced by the executor to sign, in ignorance of the condition of the estate.</p>

<p>Civil Action to recover a balance due on a promissory note of $5,000, tried before Stcurbuch, J., in Superior Court of MbcKLENbuRg County, at Chambers, February 16, 1899, upon exceptions to report of referee. -Judgment in favor of plaintiffs. Appeal by defendants.</p> <p>The fact are stated by Justice MoNtgomeby, as follows:</p> <p>The facts necessary to be stated to a proper understanding of this case were found by the réferee, and are substantially as follows: For the purpose of enabling the Farmers’ Alliance of Mecklenburg County to better conduct their mercantile business in Charlotte, twenty members of the Alliance ( two from each sub-Alliance) executed their promissory note to F. S. Neal, agent, (found by the referee to be the agent of the Alliance), to be deposited with the Commercial National Bank of Charlotte, as a collateral security for such sums as might be advanced on the faith of the collateral by the bank. E. S. Neal, one of the plaintiffs, was the agent of the Alliance for the conducting of its mercantile business. The bank advanced $3,800, under the agreement, without knowledge of any claims of offset or equities by the makers. The business of the Alliance failed, and E. S. Neal bought the remnants of the stock of goods. Then the bank, upon the back of the collateral note of $5,000, made the following endorsement: “This note is held as collateral security by the Commercial National Bank of Charlotte, N. O., for the following notes of E. S. Neal, agent: One dated November 23, 1891, on demand, $2,000; one dated December 1, 1891, on demand, $1,000; one dated December 10, 1891, on demand, $800, with interest from date, and in consideration of the payment to the bank of said sums aggregating $3,800, and interest, the Commercial National Bank assigns to Jos. McLaughlin, Trustee, all its interest in this collateral note and the said notes for $3,800, but without recourse on said bank. A. G. Brenizer, Cashier.</p> <p>“February 11, 1892.”</p> <p>Credits were made by Neal out of funds of the Alliance upon the debt which reduced it to $2,780, on the 10th day of August, 1893, including interest. McLaughlin, who is now dead, was the trustee of the plaintiffs, who were partners, under the name of E. S. Neal & Co. The plaintiffs John Beatty, W. S. Caldwell, J. S. Cashion, R. IT. Flow, J. C. Hutchinson, W. A. Alexander and J. W. Potts, and all of the defendants except J. W. Brown, administrator of Thomas H. Brown, were the persons who’ executed the note of $5,000.. Thomas II.’ Brown, whose administrator is party-defendant, also signed the note. The Alliance at the.time was engaged in a marcantile or store business, and in a cotton business, the two being conducted separately; and that E. S. Neal, as agent of the Alliance, and in its behalf, agreed that all the goods purchased should go into the store and be a security for the 85,000 note; that they would be staple goods, such as would sell easily, in case the store business was closed; that the profits of the store would go to the payment of the debts made in the bank on the credit of the $5,000 note, and that the business would be conducted strictly on a cash basis; that in violation of this agreement, $1,080.69, at one time, and $321 at another time of the funds of the store were transferred to the cotton business, in which there had been a loss, without their consent; and that sales on a credit were made to the amount of $-168.67, and that the agent had received as salary, or compensation for his services, the sum of $391.07 to which he was not entitled.</p>

Civil Action for the immediate possession of certain promissory notes, claimed as tbe property of plaintiff, and held by defendant L. A. Bristol, receiver of the Piedmont Bank of Morganton, tried before McNeill, J., at Spring Term, 1899, of the Superior Court of BuRKe County.

ActioN OR Ejectment, tried at Fall Term, 1899, of Asi-ie Superior Court, before Allen, J. There was verdict and judgment for the defendants. Plaintiff appealed. Case on Appeal. The jury, after receiving the instructions of the Judge, retired at 6.30 o’clock p. m., on the 2'7th, to1 consider their verdict.

CONTROVERSY Without Action submitted to Moore, J., at Chambers, September 23, 1899, in Waeb Superior Court, to vacate and annul the alleged incorporation of the plaintiff in North Carolina. Ilis Honor adjudged in favor of plaintiff,' and the defendant appealed.

ActioN FOR. Injunction, pending in Superior Court of Sampson County between the plaintiffs as County Board of Education, under Act 1897, v. the defendants as School Directors under Act 1899. There was judgment rendered in favor of plaintiffs at final hearing before Timberlalce, J., at Chambers, May 31, 1899, and defendants took an appeal to Supreme Court. The plaintiffs had filed no injunction bond.

Civil Actiow for alleged damages in diverting from its natural course and discharging water upon lands of plaintiff, tried before Moore, J., at March Term, 1899, of the Superior 'Court of Pitt County. Same case reported in 120 N. C., 134. A severance of the defendants was allowed, and G. A. McGowan has since died. There was verdict and judgment in favor of defendant Laura A. McGowan. Plaintiff appealed.

<p>Civil ActioN upon a note under seal, tried before Brown, J., at Wake Superior Court, May Term, 1899.</p> <p>The execution of the note by the defendant was admitted.</p> <p>The plaintiff here rested his case.</p> <p>It was admitted that the contract was made in the State of Alabama; that plaintiff, Quin, was a citizen of, and defendant, Sexton, was temporarily residing in Alabama, at the time of the contract.</p> <p>The defendant offered to testify in his own behalf, and was ashed to state any agreement or understanding that existed between himself and the plaintiff contemporaneously with the execution and delivery of the note sued on.</p> <p>To this testimony the plaintiff objected. Objection was overruled, and the plaintiff excepted.</p> <p>The testimony of the defendant was as follows:</p> <p>“The plaintiff owned an one-eighth interest in a tract of land, and I owned seven-eighths. We sold it to Thomas B. Kelly for $14,000. We took Kelly’s notes — no cash was paid. I proposed to have one note made to Quin by Kelly for his share. Quin asked me not to do that, but to give Mm my note for an amount representing Quin’s interest, with the distinct understanding that the note he was to' give should not be paid until the Kelly notes were paid; and that then my note was to be paid only out of proceeds of Kelly notes. I agreed to this, and gave the note sued on upon those conditions.</p> <p>“The Kelly notes proved insolvent. I never collected a cent on them, and never could.</p> <p>“The land we sold Kelly was under mortgage when we sold it to Kelly, and plaintiff knew it. It was afterwards sold under this mortgage, and Kelly lost the land, and we lost Kelly’s notes, as he was wholly insolvent.”</p> <p>To the admission of the foregoing evidence the plaintiff duly objected. Objection overruled. Plaintiff duly excepted.</p> <p>The defendant put in evidence The Code of Alabama, Vol. I, 1886, sec. 2661 (2981), p. 593, which is as follows:</p> <p>“The defendant may by plea impeach or enquire into the consideration of a sealed instrument in the same manner as if it had not been sealed.”</p> <p>The Court submitted the following issues to the jury:</p> <p>1. At the time of the execution and delivery of the note sued on, was it understood and agreed between plaintiff and defendant that said note was given by defendant to represent plaintiff’s interest in the Kelly notes, and defendant’s note should be paid only out of proceeds of Kelly notes, and not paid until Kelly notes were collected ? Answer.</p> <p>2. Have the Kelly notes or any part thereof been collected by defendant; if so, what part ? Answer.</p> <p>The plaintiff duly objected to the submission of these issues; objection overruled, and plaintiff excepted.</p> <p>The Court intimated that it would charge the jury that if they found the facts to be as testified to by defendant, Sexton, they should answer the first issue, “Yes,” and the second issue, “No.”</p> <p>The plaintiff excepted, and submitted to a nonsuit, and appealed.</p>

PbtitioN for appraisal and condemnation of land for use of plaintiff’s road, beard upon appeal of defendants from the order of tbe Clerk confirming, the report of Commissioners, before Timberlahe, J., at July 'Special Term, 1899, of GuteroRD Superior Court. No exceptions had been filed, and the defendants moved for leave to file them nunc pro tunc. Motion allowed. Plaintiff excepted. ITis Honor, upon motion of defendants, granted an order for re-appraisement.

Civil Action- for a division of rents and profits, consolidated with proceedings for partition by sale of the property, tried before TimberlaJce, J., at August Term, 1899, of Moore Superior Court, upon exceptions to report of referee as to rents, profits and expenditures. The parties were tenants in common of the “Hotel Ozone,’-' at Southern Pines — each owning one-half interest. The sale had been made and approved.

<p>Aotkov OK Ejectment, tried before Allen, J., at March Term, 1898, of the Superior Court of BeuNswioe County. Jury trial waived.</p> <p>The pr< sent town of Southport was originally incorporated and hnovfn as Smithville. The Commissioners of Smith-.ville had conveyed to W. IT. Craig, in 1883, by lease for 99 years, a portion of a town lot reserved in the charter for the nse of the town. Craig conveyed his interest in the unexpired lease to the defendant in 1892, and she is in possession. The authorities of Southport being of opinion that the lease made by their predecessors was ultra vires, brought this action to recover the property.</p> <p>IIis Honor rendered judgment in favor of defendant, and plaintiffs excepted and appealed.</p>

AottoN of MaNdamus to require the defendants to pass upon the official bonds of plaintiffs, Dispensary Commission ers and Manager, under the Act 1899, chap. 558, tried before Starbuck, J., at SavatN Superior Court, and judgment filed 22nd May, 1899, directing the mandamus to issue. Defendants appealed. The opinion states the case.

ActioN in the nature of trover, for the conversion of logs, tried before Starlmck, J., at June Term, 1899, of the Superior Court of Swaiw County, upon an agreed state of facts, the material parts of which are restated in the opinion. His Honor rendered judgment in favor of defendants, and plaintiff appealed.

Civil ActioN for damages for personal injuries occasioned by the alleged wanton and willful conduct of defendants’ employees, tried before Btarbuck, Jat June Term, 1899, of the Superior Court of SwaiN County. The whole case is covered by the opinion.

Civil Aotiow for judgment and mandamus to enforce collection of interest on certain Madison County bonds, held by the plaintiff as receiver of Western Carolina Bank.

Cmn ActioN for personal property, tried before McNeill, J., at Spring Term, 1899, of Watauga Superior Court, upon a case agreed, which is stated in the opinion. His Honor rendered judgment in favor of plaintiffs, and defendant appealed.

<p>Cloud Upon Title — -Judgment Lien — Act 1893, Chap. 6.</p> <p>1. A judgment lien is not included in the terms “estate” and “interest” used in the Act 1893, chap. 6, relating to actions to remove cloud upon title.</p> <p>2. A prayer for relief would be considered by the Court, after a sale under execution, should the purchaser delay to commence suit for possession; then the claimant to the title, whether in or out of possession, could proceed under the Act of 1893, against such purchaser.</p>

<p>'Receiver of Rents and Profits — Possession.</p> <p>Where a receiver of rents and profits has been appointed by the (Jourt, he stands in the shoes of landlord, and by pernancy of the rents is constructively in possession, and any disturber of that possession will be in contempt.</p>

<p>AotioN ifOR Dmbt, with attachment proceeding, beard before Coble, J., at Haywood Superior Court, Fall Term, 1899,and judgment final on tbe complaint for want of answer, to which defendants excepted and appealed. Exceptions are stated in tbe opinion.</p>

ActioN rok Dis-bt, with attachment proceeding, heard before Goble‘ J., at Haywood Superior Court, Fall Term, 1899, and judgment final on the complaint for want of answer; to which defendants excepted and appealed. Exceptions are stated in opinion.

CONTROVERSY Without Action, upon case agreed, involving the construction of a deed referred to in the opinion, submitted to his Honor, Moore, His Honor decided that the deed in controversy from Shadreck Wooten and wife to Alfred May and Ida Eugenia, his wife, conveyed to them a fee simple estate, which they could convey and ha.d conveyed to R. L. Davis, under whom the defendants claimed.

Appjaal from Justice’s Court, tried before Moore, J., at May Term, 1899, of the Superior Court of WilsoN County. One of the plaintiffs testified that the defendant, as agent of plaintiffs, had sold a house and lot for them for $2,000, and had wrongfully retained $100 as commissions. The defendant offered no evidence. The issue submitted was this: Is the defend aut indebted to plaintiffs, and if so, in what sum ?

Civil ActioN against the defendant, Sheriff of Wilson County, for levying on and selling goods claimed by plaintiff, tried before Moore, J., at May Term, 1899, of Wilsobt ■Superior Court, a jury being waived.

Civil ActioN for goods furnished, tried before Moore, J., at March Term, 1899, of the Superior Court of Pitt County, on appeal from Justice’s Court. The plaintiff testified that he had furnished the goods to J. B. Tripp, son and tenant of defendant, upon the express direction of defendant, before the delivery, and would not have furnished them without, and had refused to do SO'. That the goods were charged on day-book to J. B. Tripp, to show who got them.

AotioN for the recovery of land, tried -before Goble, J., at Spring Term, 1899, of RutidsRNORD Superior Court. Tbe plaintiffs introduced no paper title, but relied upon possession to show title out of the State, and in themselves. The case turned upon the point whether the possession of Berry Wilson, under whom the plaintiffs claimed, was adverse or not.

Civil Action upon a promissory note against the makers and endorser, tried before Goble, J.} at Eall Term, 1899, of the Superior Court of Haywood County. The note was payable twelve months after date, March 20, 1886, to defendant Erancis, and before maturity was endorsed and assigned to another, who transferred it by endorsement to the plaintiff.

Oivtt, ActuoN to enforce the payment for the mineral interest of land, contracted to be conveyed to defendant upon payment of the price agreed, tried before Starbuclc, J., at Spring Term, 1899, of Macow Superior Court, upon exception by defendant to the report of referee. The exception was sustained, and judgment rendered in favor of defendant. Plaintiffs appealed. The exception and judgment appear in the opinion.

Civil ActioN for a promissory note, tried before Allen, J., at Spring Term, 1899, of AlexaNdee, Superior Court. TTis Honor adjudged upon the pleadings and evidence that the plaintiffs could not recover. The plaintiffs excepted and appealed. The case is stated in the opinion.

CONTROVERSY Without Action, under sec. 56Y, of Tbe Code, submitted to Btarbuck, J., at Spring Term, 1898,- of tbe Superior Court of McDoweiu. County. Upon tbe agreed statement of facts, bis Honor decided in favor of plaintiffs, and defendant appealed.

ActxoN upon a medical bill determined, upon a case agreed, by McNeill, </., at September Term, 1899, of Gaston Superior Court. Three tramps were -injured by an accident while stealing a ride on defendant’s road, and the plaintiffs, a medical firm, were summoned by the conductor to attend them. They rendered the service, and sent' in their bill, which the defendant refused to pay. His Honor rendered judgment in favor of plaintiffs, and defendant appealed.

<p>Damages — Personal Injury — Negligence—Evidence— Judge’s Charge.</p> <p>1. The Judge, upon the issue as to negligence, properly charged the jury that the burden of proof was upon the plaintiff to prove the affirmative of the issue by a greater weight of the evidence; and that if the evidence was evenly balanced, so that the jury could not decide whether or not the injuries were caused by the negligence of the defendant, they would answer the issue, “No.”</p> <p>2. The Judge properly refused to charge, as requested by defendant: “That if the jury are left uncertain by the evidence in the case as to how the injuries to the plaintiff Mary E. Asbury were caused, that is,whether, they were caused by the negligence of the defendant or not, they will answer the issue, ‘No.’” This was in effect ashing his Honor to charge that the evidence as to negligence must amount to certainty, that is, proof satisfactory to the jury beyond a reasonable doubt, which is not the rule in civil cases.</p> <p>3. If the premature starting of the electric car, resulting in the injury of the female plaintiff, was occasioned by some act of omission or commission on the part of those in charge, there was negligence in the performance of duty.</p> <p>4. Referring to the defense of contributory negligence, his Honor, in defining due care on the part of the plaintiff, said that it meant such care as an ordinarily prudent man would use, placed in “Mice or similar” circumstances. It was objected by defendant that the word same should have been used in the definition. The distinction is merely verbal — the idea is the same, sufficiently expressed.</p> <p>5. The rule of “the prudent man” is applicable alike to females.</p>

Civil, Á.CTION by tbe sheriff of Macon County against the defendant, to whom he had delegated the collection of taxes for 1891 and 1892, for balance of commissions due, as per contract, tried before Greene, J., upon exception to report of referee at Fall Term, 1898, of the Superior Court of MacoN. The referee reported a balance due the plaintiff of $93.02, to which defendant excepted. Exception overruled, and judgment for plaintiff. Defendant appealed.

Civil ActiON upon the official bond of the defendant B. B. Massenburg, Clerk of Eranklin Superior Court, who had been appointed receiver of the estate of the infant wards of plaintiff, tried before Moore-, J., at January Term, 1899, of the Superior Court of said County. Upon the verdict of the jury in response to the issues submitted, both sides claimed the judgment of the Court. Judgment was rendered in favor of plaintiff, and defendants excepted and appealed.

ActioN to FoReclose mortgage made to plaintiffs by defendant Nancy Blevins and her deceased husband, tried before Allen, J., at March Term,.1899, of the Superior Court of Surry County. There was an issue submitted as to the regularity of the privy examination of the defendant Nancy Blevins, which’ the’ jury found in the affirmative.

Civil ActioN instituted in the Justice’s Court of Polk County, and carried by appeal of defendant to the Superior Court, when it was tried by Coble, J., at Spring Term, 1899. The appeal was not docketed at the next ensuing term of the Superior Court, and the plaintiff moved to dismiss the appeal on that account. The defendant’s excuse was that the trial Justice had informed him that it had been done. Motion to dismiss disallowed, and plaintiff excepted.

PetitioN EOR Dower, tried upon transfer from the Clerk to term, before Adams, J., at June Special Term, 1898, of Sampson County.

Civil ActioN on a school order, commenced in Justice’s. Court, and tried on appeal by McNeill, Jat Eall Term, 1899, of the Superior Court of LINCOLN County. Jury-waived. I-Tis Honor rendered judgment in favor of defendants. Plaintiff excepted and appealed. Tlie facts arc stated in the opinion.

Ejectment, tried before Coble, Jat Spring Term, 1899, of the Superior Court of ITeNdejísoN County. The plaintiff had been original owner of the land in controversy, and had conveyed the same to the Spartanburg & Ashe-ville R. R. Co., under whom the defendant claims. The contention of plaintiff was, that his deed was too indefinite to convey any title, and too vague to be aided by parol evidence.

TNdictmkNt for forcible trespass, tried before Hohe, J., at September Term, 1899, of the Superior Court of Pitt County. The defendants were convicted, and from the judgment rendered against them appealed to the Supreme Court. The case is fully stated in the opinion.

INDICTMENT for rape upon Pearlie Harper, a female child under 10 years of age, tried before Moore, J., and a jury, at April Term, 1899, of Pitt Superior Court. Tbe prosecutrix, Pearlie Harper, was first examined for the State, and testified to the commission of the offence upon her by the prisoner; that she was hurt and bleeding, and while she was crying he threatened if she told to kill her,, and told her to say that she did it herself with a cotton stalk.

INBictment for affray against defendant Fagg, and another, in which a deadly weapon was used, tried before ‘Moore, J., at July Term, 1899, of Wake Superior Court. Defendant’s plea of former conviction was disallowed by the Court, upon the evidence. Verdict, guilty. Judgment and appeal. Statement of Case on Appeal. This was an indictment against the defendant and one Ralph Fortune for an affray, in which a deadly weapon was used.

INdiotmeot for larceny, with, a count for receiving, tried before Moore, 3at September Term, 1899, of the Superior Court of Wake County. The store of one C. E. Horton, of Wake County, had been robbed and set on fire on Sunday, 16th July. A number of articles, principally provisions, corresponding in description with such as were in the store, but not identified as being the same, were found, the third day after the fire, at the house of defendant’s mother, with whom he lived.

INDICTMENT for murder, tried before Moore, J., and a jury at August Term, 1899, of tbe Superior Court of Johnston County. Tbe prisoner was indicted for tbe murder of Charles Lewis Oawtborne, and was convicted of murder in tbe first degree. Tbe killing of tbe deceased by tbe prisoner witb a butcher knife was conceded. Tbe State insisted that tbe homicide was attended witb such circumstances as evinced premeditation, and established a case of murder in tbe first degree.

TNDictmuNT for failure to work the public road, tried on appeal from Justice’s Court, before Brown, J., at September Term, 1899, of Durham Superior Court. The defendant was convicted. Motion for new trial. Motion overruled. Defendant excepted. Motion in • arrest of judgment disallowed. Defendant excepted. Judgment. Appeal by defendant. Case on Appeal.

<p>Murder in Second Degree — Infant Criminal — Child Murder —Doli Capax.</p> <p>1. A special instruction in reference to murder in the first degree need not be passed upon when the verdict is for murder in the second degree.</p> <p>2. Where there was no element of manslaughter in the case, the Court properly refused to submit a hypothetical view of manslaughter to the jury.</p> <p>3. Where his Honor, by varied and amplified expressions, impresses upon the jury the idea that before they can find the accused, a child between seven and fourteen years of age, capable of committing crime, they must be fully satisfied from the evidence that the accused was capable of a mischievous discretion and of forming an intention to commit crime, the charge meets the requirements of the law.</p> <p>4. The certainty requisite to a verdict of guilty is the same for all grades of criminal offenses.</p> <p>5. Since the Act of 1893, the killing being proved, and nothing else appearing, the law presumes malice, but not premeditation and deliberation, and the killing is murder in the second degree.</p>

State Warrant for failure to work the public road, heard upon appeal from the Justice’s Court, by Robinson, J., at April Term, 1899, of the Superior Court of RichMond County. By consent, the jury returned the following special verdict: That on the 18th'of April, 1898, the defendant was notified to work the public road in the county of Richmond, leading from-to-.

INDICTMENT for the murder of J. T. Howie, tried before Shaw, J., at January Term, 1899, of the Superior Court of MontgomeRY County. The killing by shooting was admitted. ' No third person was present. The deceased was seen to enter the house, angry and cursing, where the prisoner was. Immediately two pistol shots were heard, and the deceased was found lying dead, with an axe by his side.

INDICTMENT imcler see. 1062 of Tbe Code for unlawfully and willfully pulling down and removing a fence surrounding a pasture, tbe property of,, and in possession of, one Morgan Edwards, tried before Allen, J., at Spring Term, 1899, of tbe Superior Court of Alleghany County. Tbe case is fully stated in tbe opinion. Tbe defendants were convicted, and from the judgment rendered appealed to tbe Superior Court.

PeosecutioN instituted by warrant from the mayor of Laurinburg, against defendant, for violation of town ordinance, in unlawfully keeping a hog inside the corporate limits, tried, on appeal, before Timberlalce, Jat September Term, 1899, of RiciimoNd Superior Court.

INDICTMENT for the forgery of a county order on treasurer of Randolph County, tried before Robinson, at July Term, 3899, of the Superior Court of Randolph County. The defendant was convicted, and from the judgment rendered appealed to the Supreme Court. The exceptions taken are noted in the opinion.

TNdictMENt for obtaining goods and money by false pre-tences from W. D. Stedman & Co., with intent to defraud said W. D. Stedman & Oo., tried before Robinson, J., at July Term, 1899, of tbe Superior Court of Randolph County. Tbe defendant was convicted, and from tbe judgment rendered appealed to the Supreme Court. The exceptions taben are noted in tbe opinion.

ÍNdiotmeNt, under landlord and tenant act, The Code, sec. 1761, for removing an outhouse from the premises during the tenancy. There was a verdict of guilty, and appeal by defendants. The case on appeal, signed by the Solicitor and counsel of defendants, is prefixed to the opinion. Statement of Case on Appeal. This was a criminal action, tried before Coble, J., and a jury in FoRSytti Superior Court.

INDICTMENT, in effect, for furnishing T. N. Hallyburton a free pass over defendant’s road, heard before Stephens, J., of the Western Criminal District Court, upon a motion to quash, made at Special June Term, 1899, of Bubee County, and allowed by him, and afterwards affirmed on appeal of the Solicitor, by Bowman, J., at Eall Term, 1899, of the Superior Court of BubKe County, from which judgment the Solicitor appealed to the Supreme Court.

PktittoN of defendant, convicted of bastardy, to b© allowed to take the benefit of the insolvent debtor’s act, made before the committing Justice, who disallowed the petition, and heard, on appeal, before Moore, J., at September Term, 1899, of the Superior Court of WaKe County.

INdictmuNt for forcible trespass, tried before Goble, -7.. at Spring Term, 1899, of Cluvelakd Superior1 Court. Upon tbe evidence the jury found the defendant guilty, and judgment was rendered against him, from which lie appealed to the Supreme Court. The evidence is stated in the opinion.

<p>EndiotmeNt for an affray, tried before Goble, J., at January Term, 1899, of Union Superior Court. The defendants were indicted for committing an affray with D. E. Sher-rin in a public place, and were convicted, sentenced, and appealed. Their grounds of exception are stated in the opinion.</p>

Appeal, in forma pauperis, from UNION County, by a defendant in a criminal action. There was a conviction, and judgment. The defendant attempted to appeal. Appeal dismissed for reasons stated in the opinion.

TNDictmuNt for murder, tried before Battle, J., at September Term, 1899, of the Criminal Court of MecKlenbuRG County. The prisoner was indicted for the murder of Janie Brown, and according to the transcript of the record proper, he was found guilty of the felony and murder in. manner and form as charged in the bill of indictment; but the verdict did not indicate the degree of murder, whether first, or second.

IndictmeNt for embezzlement, tried at Eall Term, 1899, of Macon Superior Court, before Goble, J. There was a verdict of guilty, and the defendant appealed from the judgment pronounced.

FNDíotmKNT for carrying concealed about the person a pistol, tided before Robinson, J., at November Term, 1899, of litKDELi, Superior Court. The jury rendered a special verdict, and upon the finding of facts, his Honor held the defendant was not guilty, and discharged him. The Solicitor excepted and appealed to Supreme Court. The special verdict appears in the opinion.

iNBicTMisNT for assault with deadly weapon, tried before Battle. J., at April Term, 1899, of tbe Eastern District Criminal Court of MecKUENBUBg- County. The defendant was indicted for beating and abusing Janie Hendrick, a child 10 years old. The defense was, that the child lived with the prisoner, who stood in loco parentis to her, and that prisoner chastised her for misconduct.

iNracTMBNT for the murder of Calvin Barnes, tried before Battle, J., at October Term, 1899, of the Eastern District Criminal Court of Wii.sow County. The indictment was in the usual form, embracing both degrees of murder. The prisoner was found guilty of the felony and murder whereof he stands indicted, in manner and .form as charged in the bill of indictment. The verdict not specifying the degree of murder.

INdictmeNt against the defendants, J ohn P. Mallett and O. B. Mehegan, also H. T. Latham (not on trial), for conspiracy to cheat and defraud… Held: and so declared, that statements made by defendants in said supplementary proceedings were not competent evidence against defendants on this trial, but it is perfectly patent on inspection of the evidence set out, that the facts brought out on examination of defendants in said supplementary proceedings were necessarily used to…

INDICTMENT against the prisoner for setting fire to the barn and stable of Dr. R. J. Williams, tried before Timber-lahe, J., at March Term, 1899, of Pendes Superior Court. Thé evidence was circumstantial, and at its close, the prisoner requested the Court to charge the jury that there were not sufficient facts for them to convict. His Honor declined so to charge, and prisoner excepted. There was a verdict of guilty.

Indictment, murder, tried before Stevens, of the Western Distrito Criminal Court at May Special Term, 1899, of MadisoN County.. The prisoner was indicted for the murder of Williard Eranldin, and was convicted of murder in the second degree, and from the judgment rendered, appealed to the Superior Court. The appeal came on to be heard at July Term, 1899, of the Superior Court, before Goble, who affirmed the judgment, and the prisoner appealed to the Supreme Court.