Volume 126 — North Carolina Reports

<p>Civil Actiow for possession of land, tried before Bowman, J., at February Term, 1899, of the Superior Court of Beaií-i'okt County.</p> <p>Both parties claimed the land in controversy, which was a tingle acre, by mesne conveyances under Harmon Eason, the common source. The plaintiffs chain of title commenced with deed from Harmon Eason and wife to Nelson Morris, in 1872; the defendants’ claimed through the administrator of Ilarmon Eason, under a proceeding to sell land for assets. The deed from the administrator, J. L. James, to S. Fleming', was dated in 1880.</p> <p>The following is the description contained in the deed under which the plaintiff claims, and which corresponds with the description set forth in the complaint:</p> <p>“One acre of land lying and being in the State aforesaid, for and in consideration of the sum of $85 to us in hand paid by the aforesaid Nelson Morris for the said acre of land, lying near the town of Washington, and adjoining Fort Washington, commencing near a. marl pit in the center of a ditch, known by the name of the Trotter ditch, thence running a southwest course on the outside entrenchment of Fort Washington to a lightwood stake in Isaiah Pate’s line, thence along- Isaiah Pate’s line a southeast course to another liglit-wood stake, thence a northeast course to the said Trotter ditch to a lightwood stake in said ditch, thence up the center of the said ditch to the beginning, a lightwood stake.”</p> <p>A copy of the map used upon the trial is subjoined, the one acre in dispute being indicated by the figures A, B, E, C.</p> <p>The defendant contended that lightwood stakes being mere imaginary points, the description in plaintiff’s deeds was too indefinite to admit of location, and asked his Honor so t.> charge. His Honor declined so to chargej and defendants excepted.</p> <p>Tbe evidence was very voluminous, and tbe exceptions taken by tbe defendants upon tbe trial were numerous, but related mainly to the vagueness of tbe description and uncertainty of location.</p> <p>It was in evidence, that after tbe defendant bad obtained bis deed be bad a survey made of tbe land, and that one of tbe plaintiff’s mesne grantors, Sarah Winfield, was present, and made no objection, and set up no claim of title. The defendants ashed bis Honor to charge tbe jury, that if this was so, tbe plaintiff who claimed under her was estopped from setting up title under her. His Honor declined to so instruct tbe jury, and defendants excepted.</p> <p>There was a verdict for plaintiff, and judgment accordingly.</p> <p>"Defendants appealed.</p>

Civil ActioN upon a promissory not© under seal, tried before Starbuch, J., at Fall Term, 1899, of the Superior Court of Cam debt County. The note was dated June 23, 1882, payable one day after date, to the plaintiff, in the sum of $11,645.13, at 6 per cent, and executed by I). L. Pritchard, testator of defendant. There was a partial payment endorsed, made by the testator May 14, 1883. He died March 8, 1886, leaving a will, iu which the defendant I).

<p>Ejectment — Vendor—Mortgagee—Remedies on Default of Payment — Measure of Damages — Mesne Profits — Surrender of Possession — Case Under Reference — Control by Judge.</p> <p>1. In default of payment by mortgagor or vendee under contract of purchase, the remedy is by action for possession of the land; for sale and foreclosure; for judgment for the rent; or for all three remedies.</p> <p>2. Where they are permitted to retain possession, before or after breach, they are entitled to the rents and profits, in the absence of an express stipulation to the contrary in the written contract; but the withholding of possession, after suit brought, becomes wrongful, and they become liable for mesne profits, like other defendants in ejectment.</p> <p>3. Where the surrender of possession is made by defendant after suit brought, that does not release him from liability for rents and profits during the wrongful withholding, in the absence of a stipulation to that effect.</p> <p>4. Ordinarily, under the present practice, damages are recoverable up to the trial; but where the relation of mortgagee and mortgagor exists between the plaintiffs’ vendors, who join in the contract of conveyance to the defendant, and he surrenders possession after suit brought, to the mortgagee, who had foreclosed his mortgage against his coplaintiff, the mesne profits, as fruit fallen during the wrongful withholding, goes to the mortgagor, and not to the mortgagee plaintiff.</p> <p>5. In passing upon the rental value of land sued for, it is not competent to admit evidence as to the rental value of adjoining farms, as that would raise collateral issues.</p> <p>6. The measure of damages is the actual rental value of the land, and not what the defendant actually gathered from the land.</p> <p>7. The Judge retains control of a ease under reference, and may find facts for himself from the evidence reported, without a re-reference. Brackett v. Gilliam,, 125 N. C., 380.</p>

Civil ActioN upon a policy of life insurance issued by defendant upon the life of W. M. Mitchell, and by. him assigned to plaintiff.

Civil ActioN upon, a county road order payable to Erank Gray for $267.50 on account of fourth quarters pay keeping in repair the public roads in Plymouth Township, and by him assigned to plaintiff L. P. Hornthall, tried before Star-buck, J., at Fall Term, 1899, of WASHINGTON Superior Court.

Civil Action in the nature of trespass on real estate, tried before Starbuclc, ./., at Fall Term, 1899, of Perquimans Superior Court, upon the following issues: 1. Ts plaintiff owner of the lands described in the complaint ? 2. Did defendant wrongfully and unlawfully trespass upon the same? 3.

PktitioN for partition, heard upon agreed facts by Star-buck, J., at December Term, 1899, Pasquotank Superior Court. The petitioners claimed a half interest in the real estate described, alleging that the defendant owned the other half' interest. The defendants claimed sole seizure. Upon tbe facts agreed, liis Honor adjudged that the plaintiffs were not tenants in common with the defendants, and that the defendants were sole seized. The plaintiffs excepted and appealed.

Civil, ActioN upon a life insurance policy issued by Tlie American Legion of Honor to R. F. Jennings upon his life for the benefit of his wife, Sarah E. Jennings, plaintiff. She had transferred the policy by a written assignment endorsed thereon, signed, by her, and witnessed by her husband, to the defendant John L. Hinton. Upon the death of B. F. Jennings, his wife instituted this suit.

Civil AgttoN against J. W. Cobb, and Ms official bond, as formen guardian of plaintiff’s wards, tried before Star-bucle, J., at Fall Term, 1899, of PasquotaNK Superior Court. J. W. Cobb had been appointed guardian in July, 1897, and was removed in February, 1899.

Special Proceeding for partition, of land, beard upon appeal from tbe Cleric, before Bowman, J., at Eall Term, 1899, of NoethamptoN Superior Court. Tbe cause bad proceeded to final decree in 1879, allotting the shares and adjudging owelty against the most valuable share in favor of tbe less valuable. This was a notice to show cause why execution should not issue for tbe owelty adjudged — tbe answer set up tbe defense of payment, statute of limitation, and counterclaim.

; Foreclosure Proceedings instituted by the plaintiff, as assignee of J. W. Sherrod & Bro., of a note secured by deed of trust executed by defendant, March 25, 1887, in the sum of $1,350, with interest from date, at 8 per cent, heard before Bowman, J., at October Term, 1899, of Edgecombe Superior Court. The sale had tahen place and was reported by the Commissioner at the sum of $2,7 60, as a 'fair price for the land, with a recommendation for confirmation.

CONTROVERSY, WITHOUT ActioN, submitted to Allen, at November Term, 1899, oí Halifax Superior Court, upon agreed facts. Tbe plaintiffs, each of them, conducted business in the town of Taxboro, and each of them was engaged in more than one line of business. The town proposed to assess a separate privilege tax on each line of business engaged in, and the plaintiffs, as taxpayers, united in application toi his Honor for an order of injunction against the defendant.

<p>Special PROCEEDING foi* partition, transferred from the Clerk and beard before Bowman, J. at Fall Term, 1899, of Edgecombe Superior Court.</p> <p>The propositus was Sarah Narcissa Bradley, who died intestate without lineal descendants in 1894, but leaving her surviving two brothers, S. B. Bradley and J ames R. Bradley, and one sister, Ellen Robertson, who are defendants.</p> <p>The Neville, plaintiffs, are her nephews and nieces, children of her deceased sister, Emily Neville, who died in 1891; the other plaintiffs, W. B. Howerton and Bettie S. Draper, are children of her deceased half sister, Henrietta Howerton, who died in 1869. All the parties were of the blood of the first purchaser.</p> <p>The plaintiffs claimed, that by virtue of the right of representation, they were entitled to the share that their parents would have had if living, which would have been one-fifth to Emily Neville and one-fifth to Henrietta Howerton. Tbe defendants claimed that they were next of kin, and were entitled to one-third each.</p> <p>His Honor decided in favor of the contention of the plaintiffs, and adjudged one-fifth to the Neville heirs; one-fifth to the Howerton heirs; and one-fifth to each defendant.</p> <p>Defendants excepted and appealed.</p>

ActioN pending in Edgecoüvcbe Superior Court for in-junctive relief against the alleged breach of contract in cutting growing timber heard before Bryan, J., at Chambers, December 21, 1899. His Honor restrained the defendant from cutting and removing from the lands described in complaint any trees other than pine and poplar timber which measures ten inches a.t the stump when, cut. Plaintiff excepted and appealed.

Civil ActioN to set aside a voluntary assignment of a stock of goods made by the defendants, Eures, to a trustee, J. W. White, on the ground of fraud, because made to defeat the plaintiff in the collection of his debt; and also for the recovery of a written agreement containing the conditions of sale of the goods, wrongfully detained from the plaintiff. The creditor preferred was Mills Eure, their father.

<p>Note Under Seal — Statute of Limitations — Endorsed Receipts — Evidence.</p> <p>1. When the statute of limitations is pleaded, the burden of repelling the statute rests upon the plaintiff. Clark’s Code (3d Ed.), sec. 151.</p> <p>2. The maker of a note being dead, payments endorsed, and the dates thereof, relied upon to repel the bar, must be proved by some other person than the plaintiff, who is incompetent under The Code, sec. 590.</p>

AotioN in tbe nature of quo warranto to. test the right of the defendants to hold the office of Justice of the Peace for Pramklinton Township, PkaNicliN County, N. C., tried before Moore, J., at January Term, 1898. The plaintiff and defendants were opposing candidates, and each'claimed to be elected, as Justices for the township. The verdict and judgment were in favor of plaintiffs, upon grounds fully stated in the opinion. Defendants excepted and appealed. ,

Summary Proceeding in ejectment, tried upon appeal from Justice's Court, before Moore, Jat February Term, 1899, of VaNoe Superior Court. The plaintiffs allege that the defendant entered into possession of a bouse and lot on the premises of the Home for the Aged and Infirm, as their tenant, that the tenancy expired on January 11, 1899, and that he was holding over, after demand made.

ActioN FOR Damages for negligently killing a horse, tried before StarbuckJ., at Pall Term, 1899, of the Superior Court of Washington County. At tlie conclusion of plaintiff’s evidence tbs defendant moved for judgment of nonsuit, under Act of 1897. Motion overruled, defendant excepted. The defendant requested the Court to charge the jury that from all the evidence, defendant was not guilty of negligence. Eefused. Exception.

Civtu ActioN for an injunction order to enjoin the payment by the city authorities of Goldsboro of a claim of The Goldsboro Water Company, for water supply furnished, under contract, to the city, pending in the Superior Court of WayNe County, and heard before ’Robinson, J., at Chambers in Goldsboro, on January 9, 1900.

Civil ActioN for punitive damages ($10,000), for a malicious and wrongful discharge of plaintiff from service of defendant, beard before Moore, J., at September Term, 1890, of WayNE Superior Court. The cause assigned for the discharge of the plaintiff, a locomotive engineer, was the alleged turning of his engine” by allowing the water to get too low in the boiler. This the plaintiff denied in his testimony given on the trial.

<p>Civil ActioN to recover damages for the negligent killing of the intestate of plaintiff by defendant’s train, tried before Allen, J., at November Term, 1899, of Halifax Superior Court.</p> <p>Former trial of tbis cause, reported in 123 N. C., 604. Tbe facts are essentially the same as appeared on the former trial.</p> <p>The body of the intestate was found on the track, at Hob-good, between 12 and 1 o’clock at night, crushed and mutilated. The deceased had been drinking in the village and had started home that night, along a path used by the public which crossed the track.</p> <p>The plaintiff contended that the intestate was drunk or asleep, and that the engine passed over him and killed him; that the engineer was not keeping a. proper lookout, and did not sound the bell or blow the whistle, and that these were acts of negligence which caused the death of intestate. The plaintiff admits the contributory negligence of the deceased, but says, notwithstanding that, by the exercise of due care and prudence, the defendant could have prevented the injury; that by keeping a due lookout he could have seen the deceased in time to have stopped the train, notwithstanding the negligence of deceased.</p> <p>The defendant, on the contrary, contended that the engineer was keeping a proper lookout; that he made a proper use of his signals, and that in some way unknown, to the defendant the deceased was run over and killed by reason of his own negligence; that the condition of the pilot (cow-catcher) showed that no one could have been run over by the engine, and that the deceased was drunk, and must .have gotten entangled in the train, after the engine passed him, and it was too late for the engineer to see him; that the blood on the wheels of the flat car and the hair on the wheels sustained this view of their contention.</p> <p>There were numerous exceptions to the charge of his Honor taken by defendant, none of which were regarded as tenable by the appellate court, which held that the charge as a whole fairly presented the contentions of defendant, and correctly stated the law applying thereto.</p> <p>The jury found the first and third issues in the affirmative, and assessed the plaintiffs damages at $2,500. Judgment accordingly. Defendant appealed to Supreme Court.</p>

PbtitioN of defendant to rebear. Case decided February Term, 1899, and reported in 124 N. O., 322. 1. Held: as applied to- this action, tbat “tbe measure of damages is tbe difference between tbe price paid, or agreed to be paid, and tbe real or true value of tbe property received,” and that the Court should have held that the measure of damages “was the difference between the value of the said dry kiln apparatus as delivered to the…

ActioN Kou AN Injunction to enjoin the defendant, Superintendent of Roads, of Warren County, from locating, constructing and maintaining a public road upon lands of plaintiff, under Act 1899, chap. 581, pending in WaRRBn Superior Court, and heard at Chambers, before Bowman, J., October 10, 1899. His Honor adjudged that the restraining order be continued until the final hearing. Defendant excepted and appealed.

Civil AotioN., in the nature of quo warranto, to try the title of defendant to the office of Superintendent of Roads of Warren County, tried before Bowman, at September Term, 1899, of the Superior Court of WaekbN County.

<p>Partition^-rTenants in Common — Equitable Interest in Land —Parol Agreement — ■Statute of Frauds — -Estoppel— Parent and Child — Heirs.</p> <p>1. While children, the mother being still alive, have no estate in her land, and can not convey the same by deed, yet they have an expectancy in the land, that they could sell and bind themselves to convey, at their mother’s death, if made in writing, so as to avoid the statue of frauds.</p> <p>2. If two of the children purchase and take a deed from the other children for the latters’ interest in their deceased father’s land, upon the consideration that they will claim no interest in their mother’s land at her death, and this by a parol agreement, equity will not allow them to hold both.</p> <p>3. While at the death of the mother, the children all become her heirs, and are tenants in common of her land, the two purchasers will have an- incumbrance on their shares in favor of the other children to the value of their interest in their father’s land, at the time of conveyance.</p> <p>4. If not otherwise adjusted, the Court in a proceeding for partition will decree a sale, and charge the shares in the proceeds of sale of the two purchasing children with the incumbrance accordingly, when ascertained; and the pleadings may be conformed to this ruling by either side. "</p> <p>5. No estoppel upon the defendants is involved in the ease; neither by record, nor by deed, nor in pais, as a breach of promise to do a thing is no estoppel.</p>

<p>Civil ActiON to vacate a deed of gift made by Mrs. Lucy H. Massenburg to the wife and children of her son, B. B. M-assenburg, on the alleged ground that the grantor was largely indebted beyond the value of her remaining estate, so that tbe deed was in fraud of the rights of creditors, and void; heard before Iloh?, J., and a jury, at October Term, 1899, of EbaNKuiN Superior Oourt.</p> <p>The action was instituted a,t the instance of Mrs. Mary M. Perry, who claimed to be a creditor for a large amount, and she was one of the heirs-at-law. The other heirs-at-law of Mrs. Lucy II. Massenburg, including her son, B. B. Massen-burg, also appear as plaintiffs, although they object that their names were so used without their consent — the record does not show that their names were stricken out.</p> <p>B. B. Massenburg, whose name appears among the plaintiffs, was appointed, at the appearance term, guardian ad litem of his child W. K. Massenburg, an infant defendant, and appeared and filed answer controverting the complaint. At a subsequent term, his other infant children were made defendants, and he was appointed guardian ad litem mmc pro tunc for them, but no further answer was filed for them.</p> <p>The issues submitted were found in favor of the plaintiffs. Among the exceptions taken by the defendants was the following :</p> <p>Second.- That issues submitted were not sufficiently responsive and sufficient to the pleadings and testimony.</p> <p>The jury having found the issues in favor of plaintiffs, his Honor rendered the following judgment:</p> <p>This cause comes on for trial at October Term, 1899, of Franklin Superior' Court, before Hon. W. A. Hoke, Judge, and a jury. It appears that all the infant defendants were in apt time duly served with summons; that a guardian ad litem was formally and properly made for all sa.id defendants; that said guardian ad litem was likewise served with summons as required by law, and that said guardian ad litem appeared and in behalf of the infant defendants and defended said action. The following issues were submitted to the jury, viz:</p> <p>1. Is the personal estate of Lucy EL Massenburg insufficient to pay the debts of the estate ?</p> <p>2. What amount of such indebtedness remains unpaid after exhausting the personal assets and all realty except that sued for and in controversy, and to whom is same due ?</p> <p>3. Is deed from Lucy EL Massenburg for 100 acres of land in controversy fraudulent and void as to creditors of said Lucy IT. Massenburg?</p> <p>4. Is Mary M. Perry estopped to assail the validity of said •deed ?</p> <p>5. Has defendant B. B. Massenburg a valid counterclaim against M. M. Perry, and in what sum ?</p> <p>6. Is such counterclaim barred by .the statutes of limitation ?</p> <p>1. The jury responded to the first issue “Yes,” to the second issue “$3,400, besides cost and commissions,” to the third issue “Yes,” to the fourth issue “No,” to the fifth issue “No,” and to the sixth issue “Yes.”</p> <p>Now upon the coming in of said verdict, it is, on motion of F. S. Spruill and W. El. Ruffin, plaintiffs’ counsel, by the Court ordered, considered and adjudged, that the personal property of the decedent is insufficient to pay the debts of the estate; that a sale of the 100 acres of land, the subject matter of this controversy, is necessary, in order to make assets to pay the debts of said estate; that the deed from Lucy El. Mas-senburg for the said 100 acres of land to the said defendants is fraudulent and void as to creditors of said Lucy El. Mas-senburg, and the said deed is hereby set aside and avoided.</p> <p>It is further ordered and adjudged that this cause be remanded to the Clerk of the Superior Court of Franklin County, who will, upon the original petition for the sale of the real estate of the said decedent to make assets to pay debts, make an' order directing the plaintiff herein to proceed, after proper advertisement, to sell the land upon such terms as the said Clerk of the said court may prescribe, and report to said Clerk, who will make all necessary and further orders herein.</p> <p>The Clerk will record this judgment in his record of orders and decrees as a part of the record in said special proceeding to sell tlie land by the said administrator.</p> <p>The Court doth further order that the plaintiff shall, out of the proceeds of the sale provided for, pay the costs of this action. W. A. Hons,</p> <p> Judge, etc. </p> <p>Eroni this judgment the defendants appealed to Supreme Court.</p> <p>This was a civil action, tried before his Honor W. A. Hoke, Judge, and a jury, at October Term of Franklin Superior Court.</p> <p>The pleadings appear in the record.</p> <p>Issues were submitted as appear in the record.</p> <p>The evidence Avas as follows:</p> <p>.1. The plaintiff offered the will of Mrs. Lucy H. Massen-burg, the- only material part of Avhich to- the controversy is til at part which specifically bequeathed certain articles of personal property to different members of the family. This it is agreed was of inconsiderable value.</p> <p>2. The plaintiff offered the deed from Lucy H. Massen-burg to W. K. Massenburg and others, recorded in the registry of Franklin'County on January 18, 1896, marked Exhibit “A.” The tract of land therein described is all the real estate of decedent which has not already been sold to make assets.</p> <p>3. Plaintiff offered judgment docket of Franklin Superior Court showing following judgments:</p> <p>(а) Judgment favor F. N. Egertom, docketed October, 1895, amount $389.46 and cost (paid out of proceeds of former sale of land).</p> <p>(б) Judgment favor of F. N. Egexton, docketed December, 1895; amount $216.39 and cost (paid out of proceeds of former sale of land).</p>

Civil Action, beard on appeal from the Justice^ Court before Hoke, at October Term, 1899, of VaNce Superior Court.

Civil Action for damages for false arrest of plaintiff while a passenger on defendant’s train, tried before Brown, J., at July Term, 1899, of GeaNvillb Superior Court. At the conclusion of plaintiff’s evidence, his Honor, upon motion of defendant, ruled that plaintiff could not recover. Non-suit, and appeal by plaintiff. The evidence is stated in the opinion.

Civil ActioN for damages for tbe non-performance of a parol agreement to lease to the plaintiffs for a term of five years the plant of the North Carolina Steel and Iron Com-party, tried before Timberlake, J., at May Special Term, 1899, of Guilford Superior Court. Evidence of sucli parol agreement between the parties was offered by the plaintiffs, and objected to by the defendants, but admitted by the Court. Defendants deny that there was such an agreement, and excepted.

<p>Civil- ActioN, in tbe nature of quo warranto, to try the title of defendant to the office of Superintendent of Schools .for Granville County, tried before Moore, and a jury at January Term, 1900, of GbaNVIlle Superior Court upon the following issue:</p> <p>Is the plaintiff relator, A. Baker, entitled to the office of County Superintendent of Schools of Granville County ?</p> <p>Each party claimed the office, under appointment made the same day, July 10, 1899, by rival Boards — the plaintiff by the Board of Education, under Act of 1891; and the defendant by the County Board of School Directors, under Act of 1899; the former, termed “the old Board,” has since been adjudged to be tbe legal Board. Dolby v. Hancock, 125 N. C., 325.</p> <p>Tbe special instructions asked for by tbe plaintiff and declined by bis Honor are stated in tbe opinion. Plaintiff excepted.</p> <p>Tbe jury having responded in tbe negative to tbe issue, judgment was rendered against tbe plaintiff, and be appealed.</p>

' Civil ActioN, in the nature of quo warranto, to try the title of defendant to the office of Clerk of Criminal Court of Madison County, heard before Coble, J., at July Term, 1899, of MadisoN Superior Court. The plaintiff, as Clerk of the Superior Court of Madison County, claimed to be entitled ex officio to discharge the duties and receive the emoluments of Clerk of the District Criminal Court, just as he had done as Clerk of the Circuit Criminal Court, of Madison County.

Civil ActioN, to annul by injunction the Greensboro dispensary, pending in GuilKoed Superior Court, at August Term, 1899, and beard before Bryan, J., at Chambers, upon a motion by plaintiff to continue the restraining order until the final hearing. The decision of the cause involved the consideration of the constitutionality of the Dispensary Act of 1899, chap. 254.

<p>Civil AotioN for breach of contract of insurance and failing to deliver policy upon the life of plaintiff’s intestate, tried before Uolce, J., at October Terra, 1899, of VaNCE Superior Court. The application contained this proviso': “That no insurance shall be in force until the delivery of the policy to, and the payment of the first premium by the party whose life is insured while in good health.” The 'amount of insurance applied for was $1,000 — the annual premium.' was $33.80— the sum paid the local agent was $23.40, he and the applicant supposing that was the proper amount. The policy was never delivered, although the applicant received information from the home office in Philadelphia that her application was approved and the policy would be filled out and forwarded. It was sent to the general agent at Richmond, Va., who: failing to get a settlement of the premium from the local agent at Oxford, N. C., returned it to- the home office in Philadelphia, and it was cancelled January 25,1899. Mrs. 0. M. Ray died March 2, 1899.</p> <p>Upan the trial, the defendant asked bis- Honor to hold and charge: “That plaintiff is not entitled to recover because of the provision in the application that no insurance shall be in force till the delivery of the policy to deceased while in good health, and payment by her of the first premium.”</p> <p>His Honor declined to so hold and charge, and defendant excepted.</p> <p>The issues submitted by his Honor to the jury were as follows :</p> <p>1. Did defendant company contract and agree with intestate to issue a policy of insurance on her life in the sum of one thousand dollars ?</p> <p>2. Did defendant wrongfully and in breach of its contract fail and refuse to deliver such policy ?</p> <p>3. What damage is due and owing to plaintiff by reason of such wrong and injury?</p> <p>The issues submitted were objected to by defendant.</p> <p>The jury found the issues in favor of plaintiff and assessed his damages at $989.63 with interest from May 2, 1899, (date of tender of balance due $10.37).</p> <p>The figures arrived at were derived by deducting the difference between the premium due ($33.80), and the sum paid ($23.43), making $10.37, from $1,000.</p> <p>There was judgment according to verdict, in favor of plaintiff. Defendant appealed.</p>

SupplembNtal PeoceediNgs upon a judgment recovered in Justice’s Court against defendant John A. Early, and docketed in Superior Court, beard on appeal from Clerk’s judgment, before Allan, Jat Eall Term, 1899, of Bertie Superior Court.

Civil Actiok for $200 damages for breach of contract in failing to deliver in good condition 848-J bushels of good com, after payment for same, instituted in the Justice’s Court, with attachment proceedings, and heard before Hoice, Jat Fall Term, 1899, of Nasi-i Superior Court on appeal. The action and attachment were originally commenced against Gregg alone, a non-resident, who sold the corn to> plaintiffs.

<p>Civil ActioN for mandamus to compel the defendant, chairman of Sewer Committee of Goldsboro, to grant a permit to plaintiff to make connection of his house on John street in said city with the public sewers of the city, heard before Moore, at October Term, 1899, of WayNe Superior Court.</p> <p>The plaintiff was duly licensed and had paid the tax required for one year from January 16, 1899.</p> <p>The defendant refused the permit, for the reason that plaintiff 'had not made the deposit estimated to be sufficient to meet expenses of construction and material, but proposed to do the work himself and furnish his own material, under the supervision of the city inspector, which was not in accordance with the city ordinance.</p> <p>His Honor adjudged that tbe plaintiff was entitled to the mandamus as prayed for, and so directed. Defendant excepted and appealed.</p> <p>Tbe case fully appears in tbe opinion.</p>

Civil AotioN for plaintiff’s half of a fund deposited in defendant bank, tried before Moore, J., at. January Term, 1900, of DURHAM Superior Court.

Civil ActioN for trespass on land, tried before Solee, J at December Term, 1899, of Pitt Superior Court. Action commenced September 4, 1897. Tbe plaintiff alleged ownership and possession of a tract of 400 acres fully described by courses and distances in tbe complaint, and that defendant bad trespassed upon it by cutting and carrying off from it large numbers of valuable timber trees during August, 1896, and before and since.

Civil, ActioN for damages for breach of covenant not to operate a livery business in Greenville, N. C., for three years, and for an injunction, heard before Bowman, J., at Chambers in Pitt County, January 19, 1900, upon notice and affidavits for a continuance of restraining order heretofore granted in the cause. The plaintiff for the consideration of $1,100 had bought out the horses, vehicles and livery business of the defendant at Greenville, N. 0., on October 26, 1899.

<p>Civil ActioN to Recover damages for the death of the intestate of plaintiff, alleged to' have been, occasioned, while acting as fireman, by the negligence of defendant company in allowing their road-bed, track cross-ties, and irons to be in unsafe condition, tried before Moore, J., at October Term, 1899, of Wake Superior Court.</p> <p>The defendant denied being guilty of negligence, and alleged that their road-bed, tract, cross-ties, rail and irons were in proper condition, and while it admitted the derailment, resulting in the death of the intestate', the fireman in its employment, denied that it was occasioned by any fault of the company, and alleged that it was the wanton and malicious work of some unknown person who, the night of the wreck, withdrew the spikes and loosened the rail and so shifted it as to run the train off the track. The evidence Avas voluminous and conflicting — each side furnishing testimony in support of their respective views.</p> <p>His Honor recapitulated the contention of the parties and the evidence introduced and relied upon by each. He, in effect, charged the jury that it Avas a question for them to determine the real cause of the trouble; if the fatal injury resulted from the defective ties and road-bed, then the defendant is liable. The existence of defects in the road-bed would not render the defendant liable in damages for the death of the intestate, unless these defects Avere the occasion of his death. Tf it resulted from the act of some third person, which the defendant had no opportunity to remedy, in opening the track and displacing a rail, then the defendant is not liable. But AAdien the plaintiff shows that his intestate was killed on this track in the manner described by the witnesses and admitted in the pleadings, then it devolved upon the defendant to disprove the negligence, that is. to shoAA that the injury did not result from defendant’s negligence, and the question at last for you to determine is whether the defendant has satisfied you by all its evidence, that it is not responsible for the death of this man. It is responsible, if its negligence produced his death; it is not responsible, if his death was produced by the act of some third party.</p> <p>The plaintiff excepted.</p> <p>The verdict of the jury exonerated the defendant, and the Court rendered judgment against the plaintiff, who appealed.</p>

Civil ActioN to recover damages for breach of contract for sale of town lot in Greensboro, tried before Timberlaice, J., at May Special Term, 1899, of Guilford Superior Court.

Summaby EjbctmeNt under landlord and tenant act, commenced in, the Justice’s Court, and heard on appeal, by Brown, Jat the Superior Court of ObaNge County, October Term, 1899. At the hearing before the Justice of the Peace, Thomas Pickett and defendant L. G. Sykes both requested the Court 'by affidavit to permit Thomas Pickett to become a party-defendant in the action, which motion was refused.

Civil ActioN, begun, September 4, 1897, for tbe recovery of tbe land, tried before bis Honor, Bryan, J., at Eall Term, 1899, of Caetaeet Superior Court. At tbe conclusion of tbe plaintiffs’ evidence tbe defendants jointly demurred to tbe evidence, and moved to dismiss tbe action under tbe Act of 1897. Tbe motion was allowed, and plaintiffs appealed. Tbe evidence and grounds of demurrer are stated in tbe opinion.

<p>Civil ActioN in the nature of ejectment, tried before Tim-berlahe, J., at May Term, 1899, of Sampson Superior Court.</p> <p>The plaintiffs claimed as ' heirs of Eelix Eleming, who shortly before his death conveyed by deed as life estate in the land to his wife, Ailey Eleming, in 1841. After his death his widow married Holly Tew, and lived on the land more than thirty years, and then conveyed ■ said land to the various defendants and those under whom they claim, who are now in possession.</p> <p>That Ailey Tew, formerly Ailey Eleming, died in 1894, and the plaintiffs became entitled to the possession of said land.</p> <p>The defendants admit being in possession, but deny the title of plaintiffs; they allege that they are not claiming and holding the land under Ailey Eleming, but under Holly Tew, and under Ailey Tew and her heirs, Hinton and John H. Tew, as the widow and children of said Holly Tew.</p> <p>They also plead the statute of limitations as a second defense.</p> <p>And for a third defense and counterclaim, these defendants say: “That the deed of Felix Eleming to Ailey Fleming, his wife, of date September 25, 1841, as set forth in- the complaint as valid, and as alleged by plaintiffs to convey an estate for the life of said Ailey, these defendants say that said deed was intended by the parties thereto to convey a fee-simple, and the words of inheritance, to-wit, and “her heirs,” were omitted by the mutual mistake and inadvertence of the parties thereto. Wherefore, these defendants pray that said deed be corrected and reformed, so that the same shall convey a fee-simple estate, and that defendants be dismissed hence, and that they recover their costs, and for further relief.”</p> <p>The plaintiffs failed to reply to the counterclaim, and the defendants moved for judgment upon their counterclaim. The plaintiffs moved for leave to file a reply. The Court being of opinion that the ends of justice would not be subserved by granting the motion to file a reply,refused the motion, of plaintiffs as a matter of discretion, and granted the motion of defendants, the plaintiffs admitting in open court that they can not maintain this action if the deed from Felix Fleming to Ailey Fleming is corrected to convey a fee-simple estate. The plaintiffs excepted, and demurred ore terms to- the alleged counterclaim. Demurrer overruled, and the Court adjudged that the deed be reformed by the addition of the words “and her heirs'" after the name of Ailey Fleming, and that defendants go without day. Plaintiffs excepted and appealed.</p>

Civil AotioN upon a fire insurance policy, tried before Hoke, J., at December Term, 1899, of the Superior Court of Pitt County, upon facts agreed. The parties to this action have agreed to submit the decision of this cause to the Court upon the following agreed facts: 1. The plaintiffs are and were on the 1st day of January, 1897, and have been at-all times since said date, residents and citizens of the county of Pitt, State of North Carolina. 2.

Civil ActioN for damages for failure toi deliver promptly a telegram sent by plaintiff, tried before Timberlalce, J., at July Special Term, 1899, of Guilford Superior Court. The message wa;s in these words: “GreeNsboro, N. C., December 5, 1898. To Miss Georgia Kennon, bach of Cotton Factory, Beids-ville,N.C “Meet m© to-morrow, 12 o’clock. JeNNIe/’ Tbe massage was not delivered until called for tbe next day by tbe parties.

Ejectment on a tax title, tried before Bryan, Jat March Term, 1899, of Oiiange Superior Court. There was a verdict in favor of plaintiff. The land in controversy was the dower land of the defendant. Her objections urged in defense, overruled by the Court, are considered in the opinion. Erom tire judgment rendered in favor of plaintiff, the defendant appealed.

Civil AotioN for the purpose (1) of having a deed of trust executed by plaintiff upon real estate declared satisfied; and (2) of recovering double the amount of alleged usury exacted, and paid defendant.

Civil; ActxoN upon four official bonds of John, W. Blount, Clerk of the Superior Court of Greene County, for negligently failing to index a judgment rendered in favor of plaintiff for $1,078.93, against R. J. W. Beaman, administrator of R. O. D. Beaman.

Civil Aotiow in trespass and fo¡r injunction, beard before Bryam, Jupon motion to continue until final hearing a temporary order of restraint heretofore granted, determined at Chambers at New Bern, on December 19, 1899, in cause pending in JoNes Superior Court. . Both parties claim easements, under timber deeds from the same grantor — plaintiff’s deed dated September' 27, 1897, defendant’s deed dated October 31, 1899.

MottoN upon affidavits, to> set aside a, judgment rendered in this cause at August Term, 1887, for irregularity, beard before Bryan., J., at November Term, 1899, of LbNoie ■Superior Court. His Honor refused the motion to set aside. The plaintiffs excepted and appealed. The grounds of the application are stated in the opinion.

<p>Civil AgtioN for damages for the alleged conversion of a mule, tried before Slum, J., at April Term, 1899, of ANSON Superior Court, on appeal from Justice’s Court.</p> <p>The mule had belonged to Washington Ratliff, deceased. Both parties claimed under him.</p> <p>The widow of Washington Ratliff, Mrs. Lydia, E. Jones, (since remarried), testified, under objection from defendant, that she was present when her husband sold the mule, named “Bill,” to plaintiff for $90; that he paid $80, which by direction of her husband she counted, and wrote a receipt for the money, and signed in his name. The receipt, dated October 2, 1896, was exhibited to her and recognized as the paper, and was read in evidence, over’ objection of defendant, as follows: “Received of Gilbert Little, eighty dollars on a note, on a mule known as ‘Bill.’</p> <p>“This October 2, 1896. Watt Ratliff. ^</p> <p>The defendant excepted to the whole evidence.</p> <p>The defendant claimed under a subsequent purchase from his father, shortly before his death.</p> <p>There was a verdict for the plaintiff with $40 damages.</p> <p>Defendant appealed.</p>

Civil ActioN for tbe recovery of land, tried before Bryan, J., at January Term, 1900, of MiooRE Superior Court. Tbe plaintiff’s deed for 100 acres of land was dated September 9, 1856, and possession under it was shown for forty years. Tbe point in controversy was tbe establishment of tbe boundary line between him and tbe defendant, an adjoining owner. The special instruction asked for by defendant and refused by bis Honor is stated in tbe opinion.

PetitioN for partition of a tract of land fully described in the pleadings. The plaintiff claimed that he was entitled to one-fourth undivided interest, and the defendants to' the remaining interest. The defendants denied that the plaintiff was a co-tenant with them.

Civil ActioN for personal property, with auxiliary remedy of claim and delivery, tried before Moore, at May Term, 1899, of Nasi-i Superior Court. Same case reported in 122 N. 0., 173. . The plaintiff claimed the crops under a lien- made by the deceased husband of defendant to secure account for goods furnished the family. The defendant claimed the crop because made on her land, ánd mortgaged without her consent.

MotioN in tbe canse, after final decree certified from tbe Supreme Court, made before Brown, J., at October Term, 1899, of Dubi-iam Superior Court. Tbe motion was made by Mrs. Morebead, while yielding submission to tbe decision of tbe Supreme Court,'for leave to file an amendment to ber answer.

Civil ActioN to recover the agreed value of dyeing 29,110 pounds of hosiery at 5-J cents per pound- — gross amount claimed $1,601.05, subject to: admitted payment of $385.90, tried before Brown, J., at October Team, 1899, of the Superior Court of Dueham County. The defendant set up- a counterclaim for $3,000 damages for failure of plaintiff to properly perform their contract. The counterclaim was denied in- the reply.

Civil AottoN by the plaintiff, Dr. Hauser, to enjoin the defendant, Dr. Harding, from the practice of medicine in the town of Yadkinville, and the territory surrounding, on the alleged ground that the defendant was violating a contract .of sale of his practice, good will and location, made with plaintiff, by resuming medical practice within said limits, tried before Robm-son, J., at Eall Term, 1899, of Yadkin Superior Court.

Civil ActtoN by administratrix and heirs-at-law of Joseph Turner, for partition of certain lands, and sale to close mortgage on other lands belonging to the intestate, transferred from the Clerk and heard before TimberlaheJ., at February Term, 1900, of Iueubll Superior Court. The case was compromised in every particular, save one.

Civil ActtoN for damages for failure to deliver two messages to the plaintiff announcing the death of his sister, tried before Goble, J., at Spring Term, 1899, of LiNoolN Superior Court. Issues. ■ 1. Did the defendant negligently fail to> deliver the messages described in the complaint, or either’ of them ? Answer. “Yes.” 2. What are plaintiff’s damages? Answer. “$1,000.” J udgment accordingly for plaintiff. Appeal by defendant.

(Vn AotioN for necessary family and farming supplies furnished the feme defendant for the support of herself and her family for the year 1894, tried before Hoke, at May Term, 1899, of the Superior Court of Bertie County.

Orvxr. ActxoN to recover damages for alleged breaches of the indemnity bond furnished by defendant company, as surety for faithful performance of duty by defendant James Gr. Mehegan, cashier of plaintiff, heard before Bowman, J at Fall Term, 1899, of Edgecombe Superior Court. The answers contained pleas in bar, denied the breaches complained of, and alleged non-performance on the part of the plaintiff of stipulations forming the basis of the contract.

<p>Civil Action for the recovery of land, tried before Robinson, J., at October Term, 1899, of the Superior Court of MONTGOMERY County.</p> <p>Tbe land bad belonged to W. TI. Bobinson under- wbom both parties claimed at bis death in 1894. .</p> <p>The plaintiff claimed as heir-at-law of W. H. Bobinson, also under a deed of trust executed by him in 1865 to two of bis sons, William E. and James L. Robinson, as trustee for the support and maintenance of himself and wife, also of an imbecile son, and for the maintenance and education of a younger son, the land at death of himself and wife to be equally divided among all the children. The defendants claimed under a judgment against the grantor, followed by execution, sale and sheriffs deed in 1883. The defendants further claimed that in 1882, the surviving trustee and some of the other heirs had mortgaged the land to- secure a debt due W. K. Beacham & Co.; also that the trustees had failed to properly support the grantor, and they allege that these two circumstances avoided the deed of trust, put the title back in the grantor, and subjected his land to the execution and sheriff’s deed, under which they claimed. The deed of trust contained this clause: That if the trustees should violate any of the trust embraced in the foregoing conveyance, “then the said conveyance to be utterly null and void, and the property revert to the grantor and his heirs.”</p> <p>They also contended that the land was insufficiently described in the complaint.</p> <p>His Honor submitted two- issues to the jury- — one as to the support of the grantor and his wife during their lives, which was answered,“Yesthe other as to the mortgage to Beacham & Co., prior .to 21st February, 1883, date of sheriff’s deed to defendant Ingram; this also was answered, “Yes.”</p> <p>Judgment was rendered in favor of defendant, and plaintiffs excepted and appealed.</p>

<p>Civtt. ActioN to set aside a confirmatory decree relating to the sale of the land, ordered in a former canse, Archibald D. Cntdup v. Columbia Crudup, administratrix c. t. a. of the will of E. A. Crudup, Sr., and other's devisees, and to have J. J. Thomas, the purchaser, declared a trustee for benefit of plaintiffs, tried befor& Moore, Jat January Term, 1899, of EkaNkutN Superior Court.</p> <p>There was judgment in favor of defendants, and plaintiffs appealed.</p> <p>A full exposition of the case is contained in the opinion.</p>

Civiu AcxroN for damages to 73 hogsheads of tobacco* resulting from negligence in storing the tobacco' in an unsuitable place, tried before Tvmberláke, J., at May Special Term, 1899, of GuilRobd Superior Court. The case has been heretofore tried and reported in 122 N. C., 347, and 124 N. C., 232.

<p>Civil ActioN to recover damages for personal injury occasioned by negligence of defendant, tried before Bryan, J., at December Team, 1899, of DupliN Superior Court. Former trial reported in 124 N. C., 252.</p> <p>The issue-s, evidence, prayer for special instruction, and charge of the Court are recapitulated in the opinion.</p> <p>There wa,s a verdict in favor of plaintiff for $500. Judgment accordingly. Appeal by defendant.</p>

<p>Ejectment — Reference—Report—Exceptions—Facts Found —When. Conclusive — The Law Reviewable — Title Out of the State, by Grant; by Possession Under Golor — - Character and Duration of Possession.</p> <p>1. Where there is evidence tending to prove the facts found, and the Judge below finds the facts as the referee found them to be, they are as binding on the Court above as the findings of a jury.</p> <p>2. The plaintiff claiming under a grant covering the land (dated December 31. 1888), and the defendant admitting possession, makes out a prima facie case for the plaintiff.</p> <p>3. The case may he rebutted by showing that the title was out of the State before the grant issued, as by proving twenty-one years adverse possession under color of title before the grant was taken out: the possession need not he continuous, nor immediately preceding the suit, nor is it necessary to show under whom the possession was held to presume a grant and take the title out of the State. It is sufficient, if by counting the time the different parties held possession, it amount to twenty-one years.</p>

SpRcjaR Pii.oojoKDi.xo, heard an appeal from Clerk of Superior Court of Stokiss County, before Shaw, J., at Chambers, on December 15, 1899. In a special proceeding for an account and settlement .and payment of legacies, instituted by the parties in interest against Thomas V. Crause, executor of G. II.

BRANCH of same case, Kerner v. Cottage Co., reported in 123 N. C., 294, tried before Shmo, J., at November Term, 1899, of Forsyth Superior Court. The laud bad been sold by a receiver'heretofore appointed in the cause, but the purchaser declined to pay his bid, because of an outstanding tax title in one William Palmer.

Ctvxl ActioN for damages for personal injury alleged to bare been occasioned by the negligence of'defendant in permitting a saw used in their factory to remain without guard or screen, or safety appliance used on such machinery, to* prevent injury to operatives, tried before Robinson, J\, at February Term, 1900, of Eoesyti-i Superior Court. The defendant denied all negligence on their part, and attributed plaintiff’s injury to his own carelessness.

Civil ActioN for possession of land, tried before Timber-lake, J., at February Term, 1900, of Iredell Superior Court. Tlie land bad belonged to Eleana Elliott, who in 1873, devised it to his wife for life. At her death in November, 1882, Angoline Privett, one of the daughter's of Eleana Elliott, and wife of Cader Privett, entered into possession, claiming the land as her own under the will of her* father until her death in June', 1894.

Ouaim AND Detjvery, heard on appeal from the Justices Court, before Bowman, J., at November Term, 1899, of JBuiíku County. The summons was served by J. A. Wall, a town constable of Morgan ton. The defendants’ counsel entered a special appearance, and moved to dismiss the action, for the reason that the summons and process Avere not directed to him in the name of the office he holds, that is, as constable of the town of Morganton.

• Civil AotioN for damages for injury to plaintiff’s horse alleged to have been caused by the negligent construction and maintenance of a barb-wire fence along the defendant’s right-of-way through plaintiff’s pasture, tried before Bowman, J., at November Team, 1899, of Catawba Superior Court. The plaintiff’s horse was badly injured by becoming entangled in a barb-wire fence constructed by the defendant along its right-of-way through plaintiff’s pasture, against his protest.

Civil ActioN against tbe city of Winston for balance claimed to be due tbe plaintiff for services as “street boss,” taken by appeal from Justice’s Court, and tried before Shaw, J., at November Term, 1899, of Eobsyth Superior Court. His Honor rendered judgment against tbe plaintiff, wbo appealed to Supreme Court. Tbe whole case is developed in tbe opinion.

Claim and Delivery by appeal from Justice’s Court, beard before Robinson, J., at February Term, 1900, of tbe Superior Court of Forsyth County, upon tbe following issue: Is tbe plaintiff tbe owner and entitled to tbe immediate possession of the property described in tbe mortgage ? Answer. “Yes.” Judgment was rendered in favor of plaintiff for tbe possession of the property described. Defendant excepted, and appealed. Tbe case appears in tbe opinion.

Civil AotioN for damages for personal injury suffered by tbe plaintiff, a blind man, from falling into a diteb across a sidewalk in Winston, tried before Shaw, J., at November Term, 1899, of the Superior Court of EoRsyth County. There were three issues submitted: (1) As to negligence of defendant. (S') As to contributary negligence of plaintiff. (3) As to damages. The jury responded “Yes,”' to the first; “No',” to' the second, and assessed plaintiff’s damages at $225.

Orvu. AotioN for damages at the hands of the defendant, a practicing physician, for occasioning, as alleged,the death of bis patient, Katie Gray, intestate of plaintiff, by mal-prac-tiee and cruel treatment, tried before Robinson, J., at February Term, 1900, of Altsxastdjer Superior Court. The plaintiff, husband of the deceased, had employed the defendant, Dr. Little, to attend his wife in her confinement.

Civil ActioN upon contract of insurance against fire, tried before Timberlalse, J., at May Special Term, 1899, of Guil-FORD Superior Court. The following are the issues, with the responses of the jury: 1. Was the dwelling-house and furniture of the plaintiff insured in the defendant company on the night of the 14th of January, 1897 ? Answer. “Yes.” 2. Was it insured under- policy terms of which were like Exhibit “A” or Exhibit “B” ? Answer. “A”. 3.

Civm ActioN for goods furnished the feme defendant, M. A. Eallance, tried before Hoke, J., at Superior Court of Bueke County, Spring Term, 1899. The defendant Mrs. M. A. Ballanee conducted a mercantile business at Lewiston, N. C., in 1893, under the name of “Ballanee & Co-.,” her husband, who was insolvent, being her business manager.

<p>Life Policy — Cancellation—Non-Forfeiture—Payment of Premium — Former Course of Dealing Between the Parties — Transmission by Mail — Pule of Damage.</p> <p>1. While the policy provides JEor the payment of the premium at Richmond, Va., on July 25, and that “failure to pay premiums at the stipulated period shall make the policy void,” and the usual “form of notice,” issued some days preceding, directed the insured to remit by postoffice or express money order, or bank draft on Richmond or New York, yet if he had for several years paid his premiums through the mail by cheeks drawn by a certain business firm endorsed by himself, and the company had accepted this method of payment, then he had a right to rely upon a continuance of this method.</p> <p>2. Forfeitures are not favored — while the former course of dealings between the parties d.o not change the contract, it will be regarded by the courts to prevent forfeitures on the ground of unfairness and surprise.</p> <p>3. The regularity of the mail, a public agency, is such that it is not negligence to rely upon it as a method of transmission, especially as it had been so used in the course of dealings between the parties, and there was no express revocation.</p> <p>4. A letter, containing the usual check for premium due July 25, deposited in the forenoon of that day, in full time to reach Richmond, in due course of mail by 6 o’clock p. m., but which, for some reason unknown, did not reach its destination until 8 o’clock a. m., July 26, is a sufficient transmission in point of time to prevent a forfeiture, and so far operated as a payment that the company had no right to cancel the policy and return the check, as coming too late.</p> <p>5. The rule of damages in such ease is the aggregate of premiums paid, with interest on each payment from its date.</p>

PETITION to sell laud for assets, transferred to Superior Court docket and beard before Shaw, J., upon statement of facts agreed at Fall Team, 1899, of Stokes Superior Court.

Special PboceediNg to’ establish lines, heard on appeal from the Clerk by Shaw, at Fall Term, 1899, of Alex-aNdee Superior Court. The County Surveyor in obedience, to the order of court, ran the dividing line between the parties, according to the contention of each, and reported a map of his survey. The dividing line, as indicated, ran north and south, the plaintiffs’ land lying east of it and the defendant’s lying west-.

<p>Demand Before Buit, When■ Necessary Under Section 757 of The Gode — Claim Ex Gontractu, — Gontributory Negligence — •Voluntary BisJc of Known Danger.</p> <p>1. Under see. 757 of The Code, demand before bringing suit against a town is only necessary where the claim is ex contráctil; it is not required when the claim is for unliquidated damages, and the section does not apply to actions ex delicto. Shields v. Durham, 118 N. C., 450.</p> <p>2. If the authorities of a town make and keep in repair a good sidewalk on one side of a public pass way, and leave on the other side an abandoned and neglected walk, and these facts are known to a person who chooses in the night-time to walk along the neglected path instead of upon the safe walk-way, and is injured by reason of a defect therein, then there is contributory negligence, and there can be no recovery for the injuries sustained.’</p>

<p>Deed m Trust to Secure Sureties — Suretynot Secured, is a Party in Interest — Acknowledgment and Privy Examination Taken toy Party in Interest — ■Renewal Notes ~Power of Referee to Allow Amendment of Pleadings, 'Gode, Section —Right of Subrogation of Omitted Surety and of Payees in the- Note Secured — Release by Secured Sureties, Effect of — Probate Before Disqualified Officer — Void Registration — Subsequent Purchasers — Grantee with Notice of Defective Acknowledgment or Probate.</p> <p>1. If the disqualification of either the probating or acknowledging officer appears upon the face of the record, the registration is a nullity as to subsequent purchasers and incumbrancers.</p> <p>2. But when the incapacity of the acknowledging or probating officer is latent, i. e., does not appear upon the record, one who takes under the grantee in such instrument gets a good title, unless the party claiming the benefit of the defective acknowledgment or probate is “cognizant of the facts.”</p>

Civil ActioN for damages for alleged negligence in occasioning the death of Taylor Means, intestate of plaintiff, tried before McNeill, J., at October Term, 1899, of MeceileN-bukg Superior Court. This case was before the court at February Term, 1899, and is reported in 124 N. 0., 574. The evidence is about the same as on the former trial.

Civil Aotioh for damages for the mental anguish occasioned the feme plaintiff by the alleged negligent and untrue assurance that a death message… Held: a distance of 18 miles. She testified that she suffered great anguish of mind occasioned by the negligent and untrue assurance of the delivery of the message and from the embarrassment and loneliness growing out of it. When near Chesterfield, she met Mr. Mangum about 1 o’clock. He had been sent by Mr. Huntley to- mee-t her.

Civil ActioN to recover penalties aggregating $3,000 under T'lie Code, sec. 1964, for refusing to receive and forward as freight on two separate days 30 head of cattle at $50 a head, penalty for each day, heard on demurrer before Tim-berlcike, J., at October Term, 1899, of Columbus Superior Court. The demurrer was overruled, with leave to answer. De fendants excepted and appealed. The grounds of demurrer are fully stated in the opinion.

ActioN for mandamus against County Superintendent of Buncombe County to require bim to sign and seal school order issued to teacher in public schools, returnable before Ooble, J., at Chambers in Asheville, on November 18, 1899. The defendant moved to dismiss for want of jurisdiction, alleging that the action should have been returnable at term. Motion allowed, and plaintiff appealed.

Civil ActioN fox possession of land, tried before' Star-buch, J., at November Term, 1899, of the Superior Court of Beaueobt County. The plaintiffs, children of John L. Brown and wife, Maria L. Brown,- claim under a deed from their father made, in June, 1880, to Ashley Oongleton, trustee, for the benefit of their mother for life, and for their benefit at her death, and .should none of them be then living, for his own benefit in fee.

Civil ActioN for damages for injury sustained through: alleged négligence of defendant, beard before Shaw, J., at November Term, 3899, of Forsyth Superior Court. Upon intimation of the Court, that plaintiff could not recover, he submitted to a nonsuit, and appealed. Statement of case by Douglas, J. This is an action brought to recover damages for personal injuries received through the alleged negligence of the defendant.

<p>Register of Deeds — Marriage License, Wrongfully Issued— Official Bond — Penallies—Damages—Demurrer—Mis-joinder of Causes of Action — Debt and Tort.</p> <p>1. A lawful marriage of daughter displaces parental rights, and if damage ensues to the parent, it is damnum absque injuria, and is recoverable from no one.</p> <p>2. A demurrer to such cause of action was properly sustained.</p> <p>3. A demurrer to the recovery of penalty prescribed by The Code, secs. 1814 and 1816 for issuing license unlawfully for marriage of party under age was proiierly overruled.</p>

<p>Opinion of Witnesses as Evidence — General Pule — Exceptions, Opinion of Experts; Opinions on Questions of Identity; Opinions Received from Necessity-^As to Mental Capacity.</p> <p>1. The general rule is, that facts and not opinions are heard by judicial tribunals.</p> <p>2. The exceptions to the general rule embraces (1) opinion of experts, (2) opinions on questions of identity, (3) opinions received from necessity.</p> <p>3. The last class includes opinions, founded upon opportunities of observation and knowledge, as to mental capacity to make a contract. Clary v. Clary, 24 N. C., 78.</p> <p>4. A mind capable of making a contract is one that had sufficient intelligence to understand what the person was doing, what property he was disposing of and to whom he was conveying it, and who are excluded by the contract or conveyance.</p>

Civil Acxiorr to enforce the payment of a couple of notes, transferred by the defendant to> the plaintiff by indorsement “without recourse,” but with written agreement, signed by defendant, for their payment in default of the maber, tried by McNeill, J., upon, agreed facts.

Civil ActioN to recover tbe amount of a benefit certificate for $1,000, issued by tbe defendant to a deceased member, Leonora O. Doggett, for tbe benefit of ber two daughters, tbe plaintiffs in this action, tried before Allen, J., at January Term, 1900, of the Superior Court of Mecklenburg Comity.

Civil ActioN for damages upon two alleged causes of action, (1) claim for damages for alleged wrongful allowance of inspection of a lot of cotton; (1) for wrongful claim of demurrage, amounting to $99, paid under protest, tried before Allen, J., at March Term, 1900, of the Superior Court of MbcKLKNbuRG County. There was a demurrer filed applicable to the first cause ■of action. The demurrer was sustained and the cause dismissed. Plaintiff excepted, and appealed.

PbtitxoN for ferry across Pasquotank River from Elizabeth City, Pasquotank County, to Goat Island, Camden County, refused by the Board of County Commissioners, and beard on appeal before Starbuclc, J., at December Term, 1899, of PasquotaNK Superior Court. The petition was opposed by the defendant who was operating a ferry from Elizabeth.

Civil Action for recovery of an undivided balf interest in laud, and for partition by sale, tried before Starbudc, J., at Eall Term, 1899, of Gates Superior Court. There was ver•dict, with judgment for plaintiff. Defendant appealed. This is the second trial of the case, reported in 124 N. 0., 42, and this appeal is but a rehearing upon the same evidence on the first trial under the guidance of the opinion then delivered.

CiviJj ActioN in nature of trespass, beard before Star-buck, J., at September Term, 1899, of T'ykRell Superior Court, upon a motion to continue a restraining order heretofore granted until final hearing. His Honor allowed the motion, and defendants excepted and appealed. Among other exceptions, the defendants excepted: That plaintiffs have failed to show that they are receivers of the Bank of Commerce in Buffalo, N. Y., by any proper evidence, that is, by record evidence.

Civil ActioN for injury alleged to be occasioned by diverting water upon land of plaintiff, heard before Allen, J., at November Term, 1899, of Beetle Superior Court, upon motion and affidavit of defendant for the removal of the cause to some other county for trial, for the convenience of witnesses and to promote the ends of justice. Motion allowed. Plaintiff excepted and appealed.

Civil Action for damages for injury to land and crops of plaintiff by wrongfully diverting water upon bis land, tried before Allen, J., at November Term, 1899, of Beetle Superior ■ Court. . Upon issues submitted the jury found that the defendant wrongfully diverted and ponded water on plaintiff’s land, causing injury thereby; that the damage for permanent injury to the land was $90, and the damage for three years nest preceding the action was $60.

Civil ^.otiok for damages for injury caused by the alleged ■negligence of defendant in the construction and maintenance of a city sewer, tried before BrownJ., at April Term, 1899, of Wake Superior Court. At the close of plaintiff’s evidence, defendant moved to dismiss, as in case of nonsuit.

Civil ActioN for work and labor and materials furnished in building house for defendant, tried on appeal from Justice’s Court, before McNeill, Jat October Term, 1899, of LINCOLN Superior Oourt.

Civil ActioN to hold a mortgagee responsible for real value of land bought at his own sale. Defendant denied the purchase by him. There was an order of reference at previous term of the court, excepted to by defendant. Cause came on to be heard upon report and exceptions thereto by defendant, before Allen, J., at January Term, 1900, of UNION Superior Court. From tib© judgment rendered the defendant appealed.

AttachmbNT PROCEEDING from the Justice’s Court, heard before Biai’btock, J., at Fall Term, 1899, of Madison Superior Oourt. A petition for recordari, as substituted for appeal, had been granted by Norwood, J., at a previous, term, but the writ had not been complied with. The order was reiterated at present term, and upon the return to it, the plaintiff moved to dismiss, which was refused. Plaintiff excepted. Upon tbe trial, judgment was rendered for tbe defendant.

Civil AotioN in nature oí creditor’s bill, beard upon -exceptions by defendants to partial report of referees in relation to commissions and allowances, by Bowman, J., at Chambers in Asheville, December 31, 1898, in suit pending in BuNcokbe Superior Court. His Honor overruled the exceptions, and defendants appealed. The exceptions are stated and discussed in the- opinion.

Civil AotioN fox recovery of land, beard on petition to amend answer after affirmation of judgment by Supreme Court in favor of plaintiff, before Goble, J., at August Term, 1899, of Buncombe Superior Court. Application -denied, defendant appealed. Same case reported in 124 N. C., 434.

Claim and Deliybey PROCEEDINGS, and motion to set aside a judgment rendered therein, by Norwood, J., ait Pali Term, 1897, in favor of plaintiff, beard before Goble, J., at Pali Team, 1899, of the Superior Court of SwaiN County. The ground of the motion was that the judgment was rendered out of term time, under what purported to be a consent order, the defendant having no counsel. The motion was allowed, and plaintiff appealed.

<p>Deed of Assignment — Feigned Debt — Bona Fide Debts — Irregular Allotment of Homestead — Non-Jbinder of Wife in the Assignment.</p> <p>1. A preferred debt secured to a motlier-in-law of the assignor, who lives with him, and which will absorb most of the assets, without any evidence of its correctness, should be regarded as a feigned debt, and as such should be eliminated from the assignment.</p> <p>2. When the deed oi assignment is made part of the complaint, the debts included and not assailed are to be regarded as ~bona, fide.</p> <p>3. A homestead reserved, but irregularly allotted will be re-allotted under direction of the Court.</p> <p>4. Where homestead is reserved, the wife of assignor is not a necessary party to the deed of assignment.</p>

<p>PbtitioN in tbe cause to set aside decree and report of commissioners for mistake and for re-division of land, transferred to civil issue docket, and bear’d before Moore, J., upon motions in tbe cause at May Term, 1899, of Wilson Superior Court.</p> <p>Tbe plaintiffs moved to remand to tbe clerk, motion disallowed. Plaintiffs excepted. Plaintiffs moved for judgment for insufficient verification of answer, motion disallowed, being met by counter motion to amend tbe verification of answer on part of defendant.</p> <p>Plaintiffs excepted and appealed.</p>

Civil ActtoN for damages for. occasioning the death ol intestate, W. II. Raper, by the defective and dangerous construction of its road at a- public crossing near Lucarna in Wilson County, N. C., tried before Moore, J., at May Term, 3899, of WilsoN Superior Court.

CONTROVERSY Submitted without Action, under Tbe Code, sees. 567 and 568, to Starbuclc, J., bolding tbe Superior Court of Perquimans County, and determined December 4, 1899. Upon the facts agreed, which are copied into' tbe opinion, his Honor rendered tbe following judgment: This cause coming on to be heard before Starbuclc, J., upon the facts agreed, it appears that the Supreme Court, in- the cause entitled Slate ex rel.

Civin ActioN for tbe possession of two tracts of land, 684-JA and 260A, beard before Moore3 J., at July Term, 1899, of the Superior Court of Waxe County, upon exception by defendant to report of referee. An injunction to restrain waste was also asked for, and an order of restraint had been granted.

Civil ActioN for possession of city lot in Greensboro, tried before Broion, The plaintiff claimed as devisee under the will of his mother, Annie G. Reed, wife of J. W. Reed. The defendant claimed under tax titles from sheriff of Guilford and tax collector of Greensboro. The facts were, by consent, found by his Honor, who rendered judgment in favor of plaintiff. Defendant excepted and appealed. The opinion states the case.

Civil ActioN, with attachment proceedings, heard on appeal from Justice’s Court before Allen, J., at Spring Term, 1899, of the Superior Court of Stokes County. T. M. Eoddrill, administrator of J. C. Eoddrill, in Georgia, obtained a judgment in Georgia against the defendant, W. E. Harris, resident there.

Civil Action for the alleged killing by negligence of plaintiffs’ intestate, Gilbert Arrowood, tried before Shaw, J., at Special January Term, 1900, of McDowell Superior Court, upon the usual issues — negligence—contributory negligence, and last chance; all three of which the jury found in the affirmative, and assessed tbe plaintiffs’ damages at $1,500. Judgment for plaintiffs according to verdict. Appeal by defendant.

Civil ActioN for damages for occasioning through negligence, as alleged, the death of plaintiff’s intestate, tried before Btarbuclc, J., at October Term, 1898, of the Superior Court of MeoKleNbueu County. The intestate was run over by defendant’s train and killed while walking along on the railroad track in Charlotte. The defendant denied negligence, and pleaded contributory negligence.

Civil ActioN to foreclose land mortgage, tried before McNeill, J., at August Term, 1899, of UNION Superior Court. Jury trial waived; facts found by bis Honor. Hpon tbe facts found, judgment of foreclosure was rendered, and defendants excepted and appealed. Tbe facts are sufficiently stated in tbe opinion.

Civil Actioh upon a promissory note payable to plaintiff by F. A. Krauss and J. F. Clyburn, of the firm of Krauss & Clyburn, and their sureties W. H. Krauss and H. N. Clyburn; also upon a guaranty executed by same parties, tried before Allen, J., at January Term, 1900, of Umtow Superior Court. There was verdict, also judgment, against all the defendants. W. H. Krauss, one of the sureties, alone appealed, claiming that he had been released by the conduct of the plaintiff.

PetitioN for sale of land for more productive investment, beard before Allen, J., at March Term, 1900, of MeceleN-buRG County. There was a demurrer filed, which was overruled, and petition allowed. Defendants etxcepted and appealed. The situation is described in the opinion.

Civil ActioN for the conversion of personal property claimed to belong to- the testator, tried before Coble, J., at Eall Term, 1899, of the Superior Court of TbaNSYlvaNia County. The defendant, Huida Orr, a sister of testator, at whose house he lived and died, claimed the property, a large sum in ready money, as a gift from her deceased brother, and that was the matter in issue, which the jury found in favor of plaintiff. Judgment accordingly. Appeal by defendant.

Civil AotioN upon an insurance policy on life of G. E. Sprinkle, in wbicb tbe plaintiff was tbe beneficiary, tried before McNeill, J., at Spring Term, 1900, of Madison Superior Court. Tbe defense was, that tbe policy was obtained by misrepresentation and concealment of material facts relative to tbe bealtb of tbe insured. Tbe jury so found, and there was judgment in favor of defendant. Plaintiff appealed. Eormer trial reported 124 N. C., 405.

AmeecemeNt of sheriff in penalty of $100 for failing to make return on a Justice’s execution, heard on appeal before Bowman, Jr., at Spring Term, 1899, of the Superior Court of Hertford County. The execution was addressed Ho J. E. Jones, Constable of WinéonP The motion to amerce was dismissed by his Honor, and plaintiffs appealed.

Civil AgtioN to recover tbe amount of a fire insurance policy, tried before Starbuck, J., at Eall Term, 1899, of Pamlico County. Tbe defense was that tbe plaintiff was not tbe owner of tbe bouse insured, and burned,- and. bad concealed that fact from the company. Tbe jury rendered a verdict in favor of plaintiff, and judgment was rendered accordingly. Defendant appealed. Tbe opinion states tbe facts in evidence.

Civil ActioN to recover fines, forfeitures and penalties for violation of State laws and town ordinances, collected by the authorities of the town of Henderson, for the use of the free public schools of Vance County, tried before Moore, J., at. April Term, 1899, of VaNce Superior Court, upon exceptions to report of referee, who reported $407.90 as the sum due the plaintiff.

Otvtl AotioN for injury received through, alleged negligence of tire town in not keeping its sidewalk iñ safe condition, tried before Moore, J., at April Term, 1899, of FbaNK-xiN Superior Court. Ponton, one of defendants, made the excavation which caused the accident, and obtained a full release from liability by paying $75 to the plaintiff. The town claimed that it also was entitled to the benefit of the release. His Honor held otherwise. The town excepted.

Civil ActioN for specific.performance of an alleged contract on part of defendant to purchase land, known as “the Johnson land” near Oxford, tried before Bryan, J., at April Term, 1899, of GraNville Superior Court. The cause was heretofore tried and reported in 121 N. C., 146. The issues were found adversely to' the plaintiffs, who appealed from the judgment rendered against them. The case is fully stated in the opinion.

<p>Damages — Evidence—Statement of Case on Appeal.</p> <p>1. In enumerating to the jury the grounds for damages to the plaintiff, none should be stated unless supported by evidence.</p> <p>2. Where there is uncertainty apparent on the face of the statement on appeal as to facts in evidence, a new trial upon the whole case will be awarded and not confined simply to the issue as to damages.</p>

Civil ActioN to enjoin the sale oí land by the trustee named in a deed of trust, on the ground that there was no necessity for the sale, as the debt secured had been adjusted, heard before Shaw, J., at Fall Term, 1899, of the Superior Court of StoKes County.

Civil ActioN for damages far injury done to plaintiffs land by fire originated on defendant’s right-of-way from sparks emitted from the engine, tried before Robinsons J., ■at December Team, 1898, of Duplot Superior Court. At close of plaintiffs evidence, the defendant moved to nonsuit him, on the ground that he had failed to make out a ■case entitling him to recover. Motion refused. Defendant excepted. There was a verdict for plaintiff, and judgment. Defendant appealed.

Civil AotioN in nature of creditors’ bill to enjoin the payment of town bonds of Stoneville in aid of Roanoke and Southern Railway, issued under the Act of 1887, chap. 87, heard by consent before Starbuck, J., at Chambers, August 4, 1899, in case pending in RockiNgham Superior Court, Eall Term, 1899. The application was' placed upon the ground that the act authorizing the election was not passed in the mode required by the Constitution.

Civil AotioN for damages for occasioning, through, negligence, the death of intestate, Mrs. Sarah J. Kanipe, tried before Allen, J., at August Term^'1899, of McDowell Superior Opnrt, upon these issues: 1. Was the intestate negligently killed by the defendant railway company in failing to give timely signals before backing its car on crossing? Answer. “Yes.” 2.

<p>E.tectMENt, tiled before B-tarbuclc, J., at Eall Term, 1898, •of GastoN Superior Court..</p> <p>The defendants pleaded as an estoppel a processioning proceeding between the parties under Act 1893, chap. 22, and judgment of the Clerk locating the lines between them and taxing plaintiff with the costs, October 10, 1893, which were admitted to be all regular.</p> <p>This action was coanmenQed February 1, 1896. His Honor sustained the plea, adjudged the processioning proceeding to be a bar to the present action, and so instructed the jury who rendered a verdict in favor of defendants.</p> <p>Plaintiff excepted and appealed.</p>

Civil ActioN upon a money demand, to vacate a conveyance to feme defendant on ground of fraud, and for the appointment of a receiver, heard before Coble, J., at June Term, 1899, of MidcKLBNbueg Superior Court, upon demurrer. Demurrer sustained, and plaintiff appealed.

<p>CONTROVERSY Without AotioN, submitted to McNeill, J., at October Term, 1899, of AIeoKueNrurg County — the object being the construction of the will of B. F. Little, deceased, of .Richmond. County, N. C., to ascertain whether the devisees could make a goo'd title for a part of the real estate to the defendant, purchaser. Ilis Honor decided that they could, and rendered judgment in their favor for the purchase money. Defendant excepted and appealed.</p> <p>The controverted clauses of the will are considered and construed in the opinion.</p>

Ejectmewt, tried before McNeill, J., at Fall Term, 1899, of Ruti-ieRKORd Superior Court. The plaintiff Avas Jane Mills, widow of L. A. Mills. At a previous term of the court his heirs Avere made parties, on motion of plaintiff, and defendant excepted. At the present-term of the court the jffaintiff offered evidence tending to show who the heirs Avere, and to identify them and connect them with the chain of title. The defendant objected, and upon being overruled, excepted.

Civil AotkíN for damages for shortage in acreage in tract of land bought by plaintiff, heard by Starbuclc, J., upon facts alleged and agreed on, jury trial waived, at Spring Term, 1899, of Haywood Superior Court. Judgment in favor of defendant. Appeal by plaintiff. The facts material to the decision are stated in the opinion.

M ottoNx IN ttie Cause by the relator, after affirmation of the judgment below in his favor, reported in 125 N. O., 243, heard before McNeill, J., and refused, at August Term, 1899, of the Superior Court, of BuNcombe County. The relator submitted two motions in the cause: (1) To be allowed to amend the complaint alleging the wrongful appropriation by the defendant of the emoluments and fees of the office of Solicitor. (2) Eor a reference to ascertain the am omit thereof.

OkbottoR'’s Bum, instituted under The Code, see. 1448, by creditors of the estate of John R. Beaman, Sr., deceased, heard before Timberlalce, J., at April Term, 1899, of Samp-SON Superior Court upon exception to report of referee. The exceptions were overruled and the report confirmed. M. J'.

CREditoNs Bill, instituted under The Code, see. 1448, by creditors of the estate of John R. Beaman, Sr., deceased, heard before TimberlaJce, J., at April Term, 1899, of Sampson Superior Court, upon exceptions to report of referee. The exceptions were overruled, and judgment was rendered confirming the report. The plaintiffs excepting to so much thereof as established the claim of defendants, took an appeal.

<p>Dower — Nature—Statutory and Common Law Right— Statute of Limitations.</p> <p>1. The widow claims her dower under the statute, not under her husband, often against him.</p> <p>2. She has no estate in the land until assignment of her dower, and the statute of limitations can not be pleaded against her.</p> <p>3. Her claim is in the nature of “a writ of right,” is favored by the law, and cannot be lost or forfeited, except for causes prescribed by the statute, or the common law.</p>

Civil ActioN in the nature oí quo warranto, to try the title of defendant to be Solicitor of Criminal Court of Eor-syth County, heard upon, agreed facts before Sha/w, J., at November Term, 1899, of Eoesyth Superior Court. His Honor, upon consideration of facts agreed and submitted to him rendered judgment in favor of defendant E. A. Griffith, and the relator, M. L. Mott, excepted and appealed.

<p>Dedication for Public Use — Sale by Recorded Map and Reference — “Grace Court'”■ — Notice by Purchaser.</p> <p>1. If the. owner of land lays it off into squares, lots and streets with a view to form a town or city, or as a suburb thereto, certainly if he causes the same to be registered in the county where the land is situated, and sells any part of the lots or squares, and in the deed refers in the description thereof to the plat, such reference will constitute an irrecoverable dedication uo the public of the streets marked upon the plat.</p> <p>2. The same principle would apply to those pieces of land which were marked on such a plat as squares, or courts, or parks, and that streets and public grounds designated on such a map should forever be open to the purchasers and the public.</p> <p>3. It is immaterial whether the public authorities of the city or county had formally accepted the dedication of the park or square designated as “Grace Court” on the map. The sale was based not merely on the price paid for the lots, but there was the further consideration that the streets and public grounds designated on the map should forever be open to the purchasers and their assigns.</p>

Qivil ActioN in the nature of quo warranto brought by the relator to try the title of the defendant as Clerk of- the Criminal Court of Eo-rsytb County, tried before Shaw, J.3 a.t November Term, 1899, of the Superior Court of Foesyth County, upon the following Facts Agreed.

Civil ActioN for possession of land, tried before McNeill, ■J.j at August Term, 1899, of UNION Superior Court. It was admitted that tbe title was out of tbe State. Tbe plaintiff claimed under a deed to bimself from H. W. Staten, Jesse F. Staten and J. Bitbel Staten, dated March 31, 1896, registered the same day. Action commenced May 23, IS 9 6. Tbe defendant claimed under a deed to bimself from the same parties, December 31, 1887, registered May 81, 1897.

<p>Civil ActioN for the recovery of land, tried before McNeill, Jat August Term, 1899, of UNION Superior Court.</p> <p>The feme plaintiff claimed the land as heir-at-law of Gr. W. Little, assignee of W. C. Tarleton; the defendant claimed it as heir-at-law of W. 0. Tarleton. ' There was a verdict for plaintiffs. Judgment in accordance with the verdict, and appeal by defendant. The contentions of tbe parties are disclosed in the opinion.</p>

<p>Petition to Rehear- — Farming Out Public Office — Oode, Section 208If.</p> <p>The plaintiff, appointed tax collector for the county of Macon for the years 1891-’92 turned over to the defendant the entire lists, absolutely, to collect and account for, and reserving no control of the.tax lists. This constituted a clear case of farming out a public office, prohibited by statute. Code, sec. 2084.</p>

Civil ActioN to recover damages from fire communicated, as alleged, by sparks from a locomotive engine of defendant, and through, negligence, partially destroying the ice factory of plaintiff, tried before Brown, J., at April Term, 1899, of the Superior Court of Wake County. The ice factory was situated on defendant’s right-of-way, under a lease, some two or three hundred yards west of Union depot in Raleigh.

<p>Civil ActioN fo>r damages for personal injuries received through alleged negligence of defendant, tried before Timv-berlahe, at Special June Term, 1898, of Guilford Superior Court.</p> <p>The plaintiff testified that lie was a yard conductor in the employment of defendant at .Greensboro' in August, 1896, bis duties being confined to shifting cars and making up trains. That about 3 o’clock before day he received orders from Mr. Smith, train dispatcher, hjis superior officer’, to attach a caboose to> an engine, both indicated, and proceed at once at a rate of twenty-four miles an hour to Madison, to carry some passengers, and to return, and that he would find everything needed in the caboose, and to hurry up. That lie found the caboose was lower than the locomotive, and had to be coupled with an S link, and that there was no bell-cord, as he found out after starting. That he made the trip safely to Madison, but on his return the caboose was derailed twice — the last time he was thrown to the ground, had his skull fractured and received other injuries.</p> <p>There was conflicting evidence on the part of the defense, in regard to instructions given to plaintiff, as to' the suitableness of the coupling, the use of link S, and the rate of speed. The jury found the issues in favor of plaintiff, and assessed his damages at $6,500, for which sum judgment was rendered, and defendant appealed.</p> <p>The exceptions to- J udge’s charge are stated in the opinion.</p>

Civil Acticw, with attachment proceedings, to vacate an assignment by E.,M. Nimocks, 'on the ground of fraud and insufficiency of the schedule of preferred debts, tried before Robinson, J., at May Term, 1899, of OumbeelaNd, Superior Court. Upon a former appeal, reported in 124 N. 0., 417, the schedule ivas sustained, and the issue of fraud was abandoned. The plaintiff’s debt was not controverted, and was preferred among the second class.

(Evil. AotioN to recover damages for personal injuries sustained by the alleged negligence of defendant’s driver in driving his horse and buggy against the plaintiff in Charlotte, tried before Goble, J., at Spring Term, 1899, of Mec.kxeN-bueg Superior Court. The plaintiff was crossing the street in a severe wind and rain storm, with his head under an umbrella, when the driver at a fast rate of speed collided with him, and knocked him over, hurting him severely.

<p>Bank Indebtedness — Past Due Notes Lodged as Collaterals— Defenses — Finding of Referee — When Conclusive— Evidence.</p> <p>1. Past due notes lodged with a bank to secure indebtedness, are taken subject to all proper defenses by the makers against the original payee.</p> <p>2. The finding of facts by a referee, upon some evidence, concurred in by the Judge, although apparently against the weight of evidence, is conclusive, and not 'subject to review.</p> <p>3. Where there was some evidence before the referee tending to show that the collaterals were notes made by the defendant to plaintiff J. B. Bostic, who pledged them to the plaintiff bank, when past due — that they were made to B'ostic in purchase of three lots from him by defendant, upon an agreement that upon payment of one-fifth of the purchase money Bostic would deliver to him a good bond for title to secure a fee simple deed, when defendant should comply with his part of the contract — that Bostic had failed to give the defendant a bond for title upon payment of the notes, and had sold the lots to other parties. The referee found the facts as contended for by defendant, and his finding was approved by the Judge: Held, to be conclusive.</p>

<p>Fire Insurant e — 0 oncwrrenb Insura/n c e — Misrepresentations, Not Fraudulent, or Immaterial — Inadvertent and Unintentional Omissions — Notice of Incumbrance — Waiver.</p> <p>1. Concurrent insurance is permissible. Notice of such insurance to the same agent who issues the policies in both companies, and of incumbrances stated in the policies or communicated to him at the time of insurance, is a waiver of all objections on those grounds.</p> <p>2. A misrepresentation, unless fraudulent or material, will not prevent a recovery. Neither will an omission, inadvertent and unintentional, have that effect.</p> <p>3. Misrepresentations, to be material, must contribute materially to the loss, or fraudulently evade the payment of the increased premium, otherwise they do not vitiate the policy, life or fire — the burden of proof being upon the company, and the jury to decide the fact.</p> <p>4. The restoration of secs. 8 and 9, of Acts of 1893, chap. 299, inadvertently omitted in the codified 'system of 1899, chap. 54, warmly recommended.</p>

Civil ActioN for rents and profits of land brought by plaintiffs as devisees of their father, Solomon G. Boone, against administratrix of J. T. Peebles ad. de. bonis non, c. t. a. of Solomon G. Boone, tried by consent, jury waived, .before Norwood, J., at Fall Term, 1898, of NobthamptoN Superior Court. After objection, the plaintiffs were allowed to prove their ages by the entries recorded in the family Bible. Defendant excepted.

Civil. ActioN for an account of dealings between the parties, pending in Northampton Superior Court, and beard by consent, by Brown, J., at Chambers, August 19, 1898, upon exceptions filed by plaintiff to report of referee, relating to the defense of usury set up against amount found due the defendant.

Civil ActioN for damages to the amount of $20,000 for personal injury resulting from alleged negligence of defendant company by reason of one of its employees, while at work carelessly dropping am iron instrument upon plaintiff’s head, in the public street- of Durham, May 24, 1899.

<p>Proceedings for Contempt — Venue—Waiver—Jurisdiction —Appeal.</p> <p>1. During the pendency of an appeal, the court below still retains jurisdiction to- hear motions and grant orders, not affected by the judgment appealed from.</p> <p>2. Where a party is served with a rule granted by the Judge resident in the district to attend and answer in a county outside of the district before another Judge, and he does attend and answer, without standing upon his rights, he will he deemed to have waived the question of venue.</p> <p>3. A disclaimer of all purpose to commit any contempt of court, accompanied with a refusal to obey the lawful order, issued in the cause, is no answer to the rule, and will not screen the offender from the judgment for contempt sanctioned by statute.</p>

ApplicatioN POR Mandamus by the Solicitor of the Ninth Judicial District to require the Board of Commissioners of Forsyth County to draw a grand jury for the Superior Court, heard before Starbuclc, J., at Chambers in Winston, January 11, 1900. Application refused, and plaintiff appealed.

PaetitioN Proceedings, involving tbe constraction. of tbe devise contained in tbe will of J ames C. Horton, beard before McNeill, J., at Spring Term, 1899, of tbe Superior Court of Caldwell County. A copy of tbe devise is contained in tbe opinion. One of tbe devisees, James Hickson Horton, died without issue in lifetime of bis father.

CReditoAs Brrm pending in BuNcombe Superior Court, heard before Siarbuclc, J., at Chambers, June 29, 1899, upon an application to continue until final hearing an injunction order previously granted, and for the appointment of a receiver of the property of the defendant Ashev-ille Furniture and Lumber Co. The Ohio banks, defendants, were also creditors of the Furniture and Lumber Co., had reduced their claims to judgments in the Court of Common Pleas of Clark County, Ohio,…

<p>Petition to Rehear — -Negligence of Drivers — Primary, Gon-tributory — Proximate, Remote.</p> <p>1. If plaintiff was injured through negligence of defendant proximately concurring with, that of plaintiff’s driver, he can recover.</p> <p>2. If defendant’s negligence was remote and did not proximately or directly concur in producing plaintiff’s injury, he can not recover.</p> <p>3. If the negligence of plaintiff’s driver was the sole proximate cause of his injury, he can not recover, hut must look to his driver or his driver’s master. This would be the primary negligence of his driver.</p> <p>4. If the proximate cause of the injury was the negligence of plaintiff himself, he can not recover, as this would be his own negligence.</p>

<p>Floatable Streams — Assessments, Act 1897, Chapter 888— Riparian Owners.</p> <p>Petition to Reheab.</p> <p>1. The opinion filed in this cause, reported in 124 N. C., 749, is adhered to.</p> <p>2. The Act of 1897, chap. 388, does not affect the principle that the right of floatage in the public is superior to any right of riparian proprietors, but attempts to deprive both the public and the riparian owners of their free right of floatage without compensation to either.</p> <p>3. While the right of the State, directly or through proper agencies, is admitted, to improve the stream whenever it sees fit to do so, and to charge a just equivalent for the benefit enjoyed as the result of such improvement, by the imposition of tolls or property tax, the opinion not only recognizes the right of float-age, but protects that right against the encroachment 'Of the State.</p>

Civil ActioN for tort of defendants and their agents in burning residence of plaintiff, her corn crib, and outhouses, destroying ber crop and garden, household furniture and utensils, boohs and clothing, and forcibly taking her and family to a pest-house, on the unfounded pretence that there was small pox in the family, or that they had been exposed to it. The defendants filed separate demurrers.

Civil AotioN to foreclose a deed of trust made to secure an issue of bonds, tried before: Ooble, J., at August Term, 1899, of BuNcombl Superior Court, upon tbe petition of Falls of Neuse Manufacturing Company, a creditor' of defendant, as intervenor to share in tbe proceeds of sale of trust property. Tbe plaintiff objected. Tbe action was commenced November 22, 1894. Decree of foreclosure. Eeceiver and commissioner of sale appointed, and sale made to D. 0.

CREditoR^s Bill pending’ in Superior Court of Mitohell County. A receiver bad been appointed to- assume entire control and management of the property and affairs of tbe defendant company. His duties having ended, he was discharged.

Civil ActioN, tried before Alien, J., at Eall Term, 1899, of Caldwell Superior Court. Mr. Justice Douglas states the facte. This is an action to recover damages for injuries to a carload of cattle resulting from delay in transportation. The complaint, among other allegations, contains the following: “8.

This was a civil action tried before bis Honor Thomas J. Shaw, at August term, 'of the Superior Court of RockiNgham County, 1899, brought before a Justice of the Peace in Leaks-ville Township, 'for the purpose of recovering a penalty of $100 against the defendants named in the caption, for failure, as Commissioners of the town of Leaksville, to publish, as required by sec. 3816, of The Code, a statement of taxes levied and collected in said town, together with' a statement…

Civil ActioN for damages for alleged negligence resulting in occasioning tbe loss of an. eye of the plaintiff,' a child under 12 years of age, in employment of defendant company, tried before Shorn, J., at February Term, 1899, of Iredell Superior Court. . The jury found the issues in favor of plaintiff and assessed his damages at $1,000. Judgment accordingly. Appeal by defendant. Justice Furches,, having been counsel in the cause, did not sit on the hearing of the appeal.

<p>PetitioN to Rei-ieab dismissed.</p>

<p>Civil AotioN for occasioning the death of the intestate, am infant of five months old, through alleged negligence of the defendant in overloading its boat and causing it to sink, and drowning its infant passenger, tried beforei Goble, J., at Special January Term, 1900, of the Stuperjor Court of WASHINGTON County. The jury found that the intestate was killed by the negligence of defendant, and assessed the plaintiff’s damages at $1,000. Judgment accordingly, and defendant appealed.</p> <p>The case on appeal is stated in the opinion.</p>

Civil A otioN for wrongful cancellation of a policy of life insurance, tried before Hoke, J., at February Term, 1899, of OeayKN Superior Court, a jury trial being waived, and bis Honor passed upon the facts as well as the law. Upon the facts found, judgment was rendered in favor of plaintiff, Joseph Strauss, for $3,990.39, and interest on $1,379.46 from February 12, 1899, and costs.

WARRANT under town ordinance for creating a- disturbance-, within the corporate limits of Elizabeth City, tried, on appeal from the Mayor’s Court, before Stwrbuck, at Fall Term,, 1899, of the Superior Court of PasquotaNk County. The defendant, on conviction, moved in arrest of judgments Motion denied. Judgment. Appeal by defendant to the ■Supremo Court. The town ordinance and the warrant are stated in the ■opinion.

IkdiotMENt under Act of 1897, chap. 291, for obstructing gunning and fishing in Currituck Sound. The case is stated by Justice Clare, as follows: Appeal from Btarbuck, J., Fall Term, 1899, Currituck Court.

<p>INDICTMENT for forcible trespass in removing the horses of prosecutor, J. W. Houston, from the stable in his possession, and taking possession of the stable, with force and arms and ■a strong hand, he being personally present and forbidding, tried before Goble, J., at Spring Term, 1899, of UNION Superior Court.</p> <p>The defendants pleaded not guilty. The evidence was conflicting in its character. The charge of his Honor was directed to the different phases of the case, as the jury should And the facts. Exceptions were taken by defendants. There was a verdict of guilty. From the judgment rendered defendants appealed. The opinion presents a full view of the case.</p>

CeimiNAI. Action for violating town ordinance of Kinston, heaa*d on appeal from the Mayor’s Court, before Bryan, J., at November Term, 1899, of the Superior Court of Lenoir County.

INDICTMENT for attempting to poison the prosecutor by placing phosphorus and a deadly poison, the name of which is to the jurors unknown, in a coffee pot with coffee therein, made for the prosecutor to drink, feloniously and maliciously intending him to injure, kill and murder, tried before Hohe, J., at January Term, 1900, of Wake Superior Court.

CeiMINau Prosegution tinder sec. 3820, of The Code, for violation of an ordinance of tbe town of Burlington, tried on appeal from the Mayor’s Court, before Brown, J., at November Term, 1899, of the Superior Court of Alamance County.

INDICTMENT ttoe ARSON and conviction in the Eastern District Criminal Court of EdgecoMbe County, heard on appeal before Bowman, J., at the Superior Court at October Term, 1899, upon motions to quash indictment, and in arrest of judgment, which motions were refused, and the judgment of the Criminal Court affirmed. Prisoner appealed. The grounds of the motions are stated in the opinion.

<p>Fmbezzlam.ent — Plea, m Abatement — Proper Venue — Presumption as to Venue Charged, Code, Section 119^.</p> <p>1. A plea in abatement ior wrong venue should give a better writ, by naming the proper county.</p> <p>2. The presumption is in favor of the county charged, under The Code, sec. 1194, hut may be rebutted by plea and evidence.</p> <p>3. In misdemeanors, if the State joins issue, and the plea is found in favor of defendant, he is recognized for trial to the proper county; if found in favor of the State, judgment is rendered as upon a verdict of guilty.</p> <p>4. In felonies, if the issue is found in favor of the State, the defendant is allowed to enter his plea of not guilty.</p>

<p>INDICTMENT in the Mayor’s Court of the city of Raleigh, for failure to take down his sign, above the sidewalk in front of his store on Fayetteville street, contrary to the form of a city ordinance, in such case made and provided, tried on appeal before Solee, J., at January Term, 1900, of Waee Superior Court. His Honor charged the jury, if they believed the evidence, they should find the defendant guilty.</p> <p>Verdict guilty. 'Defendant was fined $50, and appealed.</p> <p>The city ordinance, evidence of the State (defendant introduced none), and contentions pro and con fully appear in 'the opinion of Eurches, J., and in the dissenting opinion of OuaRK, J.</p>

INDICTMENT for selling .fresh, meat in East Durham, without having paid license for the privilege, required by Act 1899, chap. 11, sec. 51, for such sales in cities and towns, tried before Moore, Jat January Term, 1900, of Dueham Superior Court. There, was a special verdict to the effect that the defendant had made such sales in East Durham without license; but that East Durham was outside of the city of' Durham, unincorporated and without town government and defined limits.

INDICTMENT for stable burning under The Ood-e, sec. 985 (6), beard on appeal from the Criminal Court of Edgecombe County, before Bowman, J., at Fall Term, 1899, of the Superior Court. Upon the trial in the Criminal Court the Solicitor offered to prove by the witness Thomas Tanner, as furnishing a motive for the criminal act, that the defendant told him last year that he was mad with Bullock, (superintendent of the owner). Tlie evidence was objected to, but allowed.

INDICTMENT for failure to list poll and property for taxation, tried before Timberlahe, J., at February Term, 1900, of Ikedell Superior Court. The defendant moved to quash the bill for want of jurisdiction. Motion allowed. State appealed.

INDICTMENT for murder, tried before Robinson, J., at November Term, 1899, of the Superior- Court of Rowan County. The prisoner was indicted, along with Tom Carr, for the murder of William Kerns, a policeman of the town of Concord. The cause was removed from Cabarrus County to Rowan County for trial on affidavit of prisoners. They were both convicted of murder in the first degree. Carr was awarded a new trial by the trial Judge. Sentence of death was passed upon.

INDictmkNt for murder of John Thomas, tried before Bryan, J., at Special September Term, 1899, of the Superior Court of LeNOIR County. The prisoners were convicted of murder in the second degree, and appealed from the judgment pronounced. Huggins afterwards withdrew his appeal. The other two', Pittman and Johnson, took the exception that the evidence would not warrant their conviction.

INDICTMENT for retailing spirituous liquors without license, tried before- Shaw, Jat October Term, 1899, of the Superior Court of BocKing-iiam Oo-unty. The defendant was bound over to court for violating, the dispensary act of the town of Madison, but he was indicted under the general act for retailing without license, and was convicted. He excepted because he was indicted under the general law. He was sentenced to eight months imprisonment, to be worked on the public roads.

<p>Indictment for disturbing a religious congregation at Mt. Pleasant church in Surry County, tried'before Shaw, J., at October Term, 1899, of the Superior-Court of said county.</p> <p>After the State had examined all its witnesses and rested its case, the defendant' demurred thereto ore tenus. 'His Honor overruled the demurrer, and charged the jury, if they believed the evidence, to pronounce a verdict of guilty, which they did. Defendant excepted and appealed from the judgment pronounced.</p> <p>The evidence, as agreed upon, is stated in the opinion.</p>

■ INDICTMENT for engaging in the .business of a lumber-dealer without having paid the license tax required by the-Revenue Act of 1899, chap. 11, secs. 58 and 11, tried before Robinson, J., at Spring Term, 1900, of ALEXANDER Superior Court. Upon the special verdict rendered in the case, his Honor-adjudged the defendant guilty, and the jury so> found. Judgment that defendant pay a penny and the costs. Defendant appealed. The special verdict appears in the opinion.

INDICTMENT for carrying a pistol about the person off of defendant’s own premises, tried before Shaw, Jat Fall Term, 1899, of • AVilkes Superior Court. The defendant was convicted. The evidence showed circumstances of great aggravation, including a murderous assault. The defendant had been convicted in another case, No. 259, at the same term of the court, and sentenced to imprisonment.

<p>INDICTMENT for burning eight stacks of oats, three stacks of straw and three stacks of fodder, tried before Allen, J., at Eall Term, 1899, of Mitchell Superior Court. After conviction the defendant moved in arrest of judgment because the indictment did not allege that the stacks were “out of doors" — pursuant to the statute upon which the indictment was founded (Code, sec. 985 (5). His Honor overruled the motion, and rendered judgment, from which the defendant appealed.</p> <p>The statute is quoted in the opinion.</p>

INDICTMENT for discriminating in passenger rates and granting free pass to T. N. Hallyburton!, beard on appeal from Criminal Court for Bubee County, before Shaw, J., at Chambers, March 13, 1900. On the trial in the Criminal Court the' defendant requested his Honor to charge the jury: That the transportation of Hallyburton from Morganton to Washington and return, was inter-State commerce, and was not the subject of indictment in the State courts.

<p>INDICTMENT foi’ the ra.pe of Harriet MdMiílan. The prisoner was convicted at July Special Term, 1899, of the Eastern District Criminal Court of Robeson County, Battle, J., presiding, and appealed to> the Superior' Court, assigning as error admission of improper evidences The prosecutrix had been examined and cross-examined. One of the committing Justices, D. L. Stewart, was examined on. the part of the prisoner to show discrepancies in the evidence: of prose-cutrix in the Justice’s Court, and on the present trial. On his cross-examination, the State: proposed to ask the: witness if her testimony in this court was substantially the same as it was on the hearing before him in Justice’s Court. Objection by the prisoner. Question admitted. Answer: Yes, she testified to about the same on both trials. Prisoner excepts. The prisoner was convicted, and judgment of death was passed on him. He appealed to the Supreme Court, Timberlahe, J., presiding, who adjudged at Chambers on December 28, 1899, that there was error in the ruling of said Criminal Court, and that the defendant is entitled to a new trial. The Solicitor, C. M. McLean, excepted, and appealed to< the Supreme Court.</p>

CRIMINAL Action for violation of special city ordinance of Winston in refusing to> be vaccinated, beard on appeal from tbe Mayor’s Court, by Robinson, J., and a jury upon' tbe plea of not guilty. Upon tbe trial the prosecutor testified tbe warrant bad not been sworn to — thereupon tbe defendant claimed a verdict of not guilty — -which was allowed, and the State appealed.

INDICTMENT for murder of John, C. Herring, tried before Bryan, J., at October Term, 1899, of the Superior Court of SawpsoN County. The prisoner was convicted of murder in tbe first degree, and from the death sentence appealed to Supreme Court. There was a “broadside” exception to the Judge’s charge, which by consent of Attorney-General, was allowed to be substituted, nunc pro tunc by specific exceptions, which were considered by the Court, and appear in the opinion.

<p>Murder in First Degree — Mental Capacity to Premeditate and Deliberate — Evidence Amounting to More- them a Scintilla, Conjecture, or Suspicion to be Submitted to the Jury, for them to Weigh- and Consider.</p> <p>1. In a case of murder, where there is evidence connecting the prisoner with the crime, and the defense is put upon the ground of mental incapacity, which relieved the accused from criminal guilt, or if not entirely, to render him incapable of deliberation and premeditation, and thus relieve him from the charge of murder in the first degree, and the evidence on this point is conflicting, the whole goes to the jury for them to weigh and consider.</p> <p>2. The evidence submitted by the State must be such as reasonably tends to prove the fact, and must amount to more than a mere scintilla, conjecture, or suspicion, to authorize a finding by the jury.</p>

INDICTMENT for unlawfully retailing spirituous liquor in Greensboro, N. C., tried before Brown, J., at December Term, 1899, of Guilfokd Superior Court The indictment is as follows: “State of North Carolina — Guilford County. “Superior Court, December Term, 1899. “The jurors for the State upon their oath present: That E. G. Newcomb, late of the county of Guilford, on the 7th day of November, in the year of our Lord, 1899, at and in the county aforesaid, and in the city of…

INDICTMENT for larceny of growing corn the property of George Thomas, heard on appeal from the Western District Criminal Court for Buncombe County, before Goble, J., of the Superior Court on November 1Y, 1899. The proof was that George Thomas was the renter of J. M. Bassett, and had charge of the crop, although he did not live on the land.

INDICTMENT for embezzlement, tried before Goble, J., at Eall Term, 1899, of Citeeoicee Superior Court. Tbe prosecutor raised a tobacco crop on defendant’s land, wbo sold it and refused to account for proceeds of sale. Tbe defendant demurred to tbe evidence and asked tbe Court to- instruct tbe jury that there is no evidence on which to convict. His Honor declined to give the instruction, and tbe jury convicted the defendant, wbo appealed from tbe judgment.

<p>Homicide — Premeditation—Scintilla of Evidence.</p> <p>1. Where there is evidence, more than a scintilla on the part of the State, going to show premeditation and deliberation on, the part of the prisoner, indicted for murder, it is for the jury to pass upon the guilt of the prisoner, and the degree, if guilty.</p> <p>2. The credibility of the witnesses and the weight of the evidence are for the jury, and not for the appellate court, although it may differ from the jury as to the weight of the evidence, where it is conflicting.</p>

MotioN to set aside a verdict rendered at September Term, 1899, of Superior Court of Duplin County, which, motion was made at September Term and continued over to December Term, 1899, when it was heard by Bryan, J., and disallowed. Defendant had been convicted of an assault, and' upon his motion his Honor had entered an, order setting aside the verdict and granting a new trial.

INdictmeNt for engaging in the business of selling pianos and organs in Lincoln County without license, tried before Allen, J., at Spring Term, 1900, of Lincoln Superior Court. The defendant had no license himself, but was acting as one of the salesman of E. M. Andrews & Co. (Incorporated'), who had taken out a license, paying $10 therefor. The jury found a special verdict, upon which his Honor pronounced the defendant not guilty, and defendant was discharged.

<p>Indictment — Mwrcler—Assailant with Deadly Weapon and Deadly Intent — How Remitted to Right of Self-Defense.</p> <p>While the assailant remains in the conflict, to whatever extremity he may he reduced, he can not he excused for taking the life of his antagonist to save his own. In such case it may he rightfully and truthfully said that he brought the necessity upon himself hy his own criminal conduct. But when he has succeeded in wholly withdrawing himself from the contest, and that so palpably as, at the same time, to manifest his own good faith, and to remove any just apprehension from his adversary, he Is again remitted to his right of self-defense, and may make it effectual hy opposing force to force, and when all other means have failed, may legally act upon the instinct of self-preservation, and save his own life hy sacrificing the life of one who persists in endangering it.</p>

State WaeeaNT beard on appeal from court of Mayor of Wilmington, before Bryan, J., at Eall Term, 1899, of Superior Court of New TIaNOVER County. Tbe defendant was charged with doing scavenger work without license, in violation of an ordinance regulating the sanitary department of the city of Wilmington. The defendant was convicted and fined $5 and costs, and appealed. Admitted facts are stated in the opinion.