Volume 128 — North Carolina Reports

<p>ActioN by W. G. Pool, administrator, against E. E. Lamb, heard by Judge A. L. Coble and a jury, at March Term, 1900,, of Pasquotanic County Superior Court. Erom a judgment for defendant, the plaintiff appealed.</p>

ActioN to recover land by the Scranton and North Carolina Land and Lumber Company against George Jennefct and others, heard by Judge Thomas McNeill and a jury, at Fall Term, 1900, of ITyde County Superior Court. From a judgment of nonsuit, the plaintiff appealed.

<p>ActioN by Noah Biggs against the Mutual Reserve Fund Life Association, heard by Judge A. L. Goble, upon agreed state of facts, at November Term, 1900, of Halifax County Superior Court. Erom a judgment for defendant, the plaintiff appealed.</p>

<p>1. INJUNCTION — Public Nuisance — Burden of Proof.</p> <p>To restrain an alleged public nuisance, it must be irreparable and immediate, and must affect the complainant injuriously in some manner peculiar to himself.</p> <p>2. INJUNOTON — Estoppel.</p> <p>An order dismissing a temporary injunction is no bar to a permanent injunction after the final hearing.</p> <p>3. INJUNCTION — Appeal.</p> <p>An appeal from an order dismissing a temporary injunction does not continue the injunction.</p>

<p>ActioN bj M. A. Floyd, W. J. Floyd, Bettie P. Gray, 0. L. Floyd, T. T. Floyd, J. M. Floyd and E. I. Floyd against Ellen Squire, June Squire and E. S. Rook, beard by Judge A. L. Goble, at October Term, 1900, of Northampton County Superior Court. From tbe order of the Court affirming the report of the Commissioners, the plaintiffs appealed.</p>

<p>STATES — Suability—Torts—State Prison — The Code, Sec. 663.</p> <p>The State Prison, being .an agency of the State, can not be sued unless such authority is expressly given by statute.</p>

AotioN by D. W. Dowdy against E. A. White, Emma White and Rufus White, executors of E. A. White, deceased, heard by Judge A. L. Goble and a jury, at November Term, 1900, of Craven County Superior Court. From judgment for plaintiff, the defendants appealed.

ActioN by I). L. Batts against J. E. Batts, heard by Judge n. B. Síarbucle and a jury, at November Term 1900, of Wilson County Superior Court. From a judgment for the plaintiff, the defendant appealed.

<p>HOSPITALS AND ASYLUMS — Indigent Insane — The Code, Sec. 2278 — Acts 1899, eh. 1, Sec. U.</p> <p>Under The Code, sec. 2278, and Acts 1899, ch. 1, sec. 44, an insane person able to pay expenses at the State Hospital is-not entitled -to free admission.</p>

AottoN by W. W. Miller against tbe Wilmington and Powelsville Railroad Company, beard by Judge A. L. Coble and a jury, at September Term, 1900, of Beetie County Superior Court. From a judgment for tbe plaintiff, tbe defendant appealed.

<p>ActioN by W. G. Price against J. H. Stanley, beard by Judge ~W. 8. O’B. Robinson, at November Term, 1900, of JohNstoN County Superior Court. From a judgment for tbe defendant, tire plaintiff appealed.</p>

ActioN by Q-. IT. Cooper against E. C. Jones, heard by Ií. B. Starbuclc, upon an agreed state of facts, at October Term, 1900, of FeaNKLIN County Superior Court. Prom a. judgment for plaintiff, the defendant appealed.

<p>1. DEEDS — Absolute on Face — Mortgages.</p> <p>Evidence in this case held sufficient to warrant a finding that a. deed absolute on its face was in fact a mortgage.</p> <p>2. ISSUES — Proof— Trial.</p> <p>Refusal of Court to submit an issue on which there is no proof, is not erroneous.</p> <p>3. DEEDS — Separate Instruments.</p> <p>It is immaterial that a contract is contained in several instruments.</p> <p>4. INb i'RUCTIONS — Presumptions.</p> <p>Where no exception to the charge is sent up, it is presumed to-be correct.</p> <p>5. CONTRACTS — Terms—Essence.</p> <p>Where suit is brought to have a deed absomte on its face declared a mortgage, the time for redemption is not of the-essence of the contract.</p> <p>6. LIMITATION OP ACTIONS — Possession.</p> <p>The statute of limitations has no application to a party in possession who brings suit to have a deed absolute upon its. face ueclared a mortgage.</p> <p>7. WITNESSES — Competency—The Code, Sec. 590.</p> <p>The sons of a grantor, in a deed, which grantor is suing the-neirs of the grantee to have such deed declared a mortgage, are not incompetent witnesses under The Code, sec. 590, to-show transactions between the grantor and grantee.</p> <p>8. NOTICE — Deed—Mortgage—Devisee.</p> <p>A registered deed may be declared a mortgage, though the land, is held by the devisee of the grantee in the deed.</p>

ActioN by tbe Gay Manufacturing Company against ■J. A. Hobbs and others, beard by Judge Ti-iomas McNeill •and a jury, at Eall Term, 1900, of ChowaN County Superior 'Court. Erom judgment for defendant, tbe plaintiff appealed.

<p>FORECLOSURE OF MORTGAGE — Purchase hy Agent of Mortgagee.</p> <p>Where agent of mortgagee purchases land at sale under mortgage hy agreement with mortgagor, the mortgagor to have ten days in which to redeem, a purchaser from the agent acquires the land free from any trust in favor of the mortgagor.</p>

<p>1. DESCENT AND DISTRIBUTION' — Deeds—The Code, Seo.. 1W2.</p> <p>A deed conveying timber on land inherited by the grantors is void as to creditors of intestate if made within two years after the granting of letters testamentary.</p> <p>2. ESTATES — Life Estates — Deed—Remaindermen.</p> <p>A life tenant cannot by deed convey timber standing on land at the time of his death.</p>

A PAPER purporting to be the last will and testament of Thomas J. Sheppard was propounded for probate by William Shaw as executor. Caveat was entered by J. E. Smith-wick and others; heard by Judge íl. R. Slarbuch and a jury, at December Term, 1900, of Pitt County Superior Court. From a judgment for the caveator, the propounder appealed.

<p>ESTATES — Wills—Sale of Contingent Remainder,</p> <p>The Courts will not decree a sale of land where it is limited in remainder to persons not in esse.</p>

<p>ActioN by N. P. Strause and. IT. P. ■ Strause, trading as Strause Bros., against Tlie Palatine Insurance Company, heard by Judge H. B. Siarbuclc and a jury, at December Term, 1900, of Pitt County Superior Court. From a judgment for plaintiff, the defendant appealed.</p>

<p>ActioN by T. B. Holt, as executor of N. GK Burns,.against Barney Johnson and E. M. Johnson, heard by Judge W. S. O’B. Robinson, at October Term, 1900, of Waee County Superior Court. Erom a judgment for plaintiff, the defendant appealed.</p>

<p>AotioN by L. A. Wheedon against ifcthe Ameridan Bonding and Trust Company, heard by Judge George A. Brown, at April Term, 1900, of New HaNOver County Superior Court. Erom a judgment for the plaintiff, the defendant appealed.</p>

<p>BANKS AND BANKING — National Banks — Guaranty—Ultra Vires.</p> <p>A contract of guaranty by a national hank can not he avoided on the ground of ultra vires.</p>

ActioN by Robert E. Lyon against The Fidelity Bank, as executor and trustee of E. B. Lyon and William O’Rouke, heard by Judge T7. B. Council, at February Term, 1901, of Duehaii County Superior Court. From judgment for defendant, the plaintiff appealed.

<p>ActioN by R. Lee Wright, administrator of Wilson Williams, against the Southern Railway Company, heard by Judge George 11. Brown and a jury, at February Term, 1901, of RowaN County Superior Court. From a judgment for the plaintiff the defendant appealed.</p>

<p>ANOTHER ACTION PENDING — Dismissal and Nonsuit — Federal Courts• — The Code, Secs. 1J/2, 166 — Demurrer.</p> <p>One taking a nonsuit in a Federal Court is entitled to bring a new action in tbe State Court within one year thereafter.</p>

AotioN by R. A. Barrett against M. D. McCrummen, Duncan McCrummen and Malcom McCrummen, trading as M. D. McCrummen & Co., heard by Judge Frederick Moore and a jury, at January Term, 1901, of Moore County Superior Court. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by L. P. Dosh and M. V. Dosh against The Cape Rear Lumber Company, heard by Judge Frederick Moore and a jury, at December (Special) Term, 1900, of Pender County Superior Court. Prom a judgment for the plaintiffs the defendant appealed.</p>

ActioN by IT. PL Ray and Elizabeth Ray, his wife, against J. A. Long, heard by Judge W. A. JEolce and a jury, at September Term, 1900, of Alamance County Superior Court. J. A. Long purchased the land in controversy on an execution sale to satisfy a judgment docketed against H. M. Ray. In an action brought on the ejectment, sale, and deed. TI. Pi-Ray was ejected from the land, and the defendant Long put in possession under writ of the Court. II.

<p>SALES — Vendor and Vendee — Delivery to Carrier — Bill of Lading.</p> <p>Delivery of goods by a vendor to a common carrier is a delivery to tbe vendee, and tbis rule is not affected by failure of vendor to furnish vendee a bill of lading.</p>

ActioN by S. T. Carson and wife against tbe Norfolk and Carolina Eailroad Company, beard by Judge A. L. Goble and a jury, at October Term, 1900, of Edgecombe County Superior Court. From a judgment for tbe plaintiffs, tbe defendant appealed.

<p>1. WILLS — Testamentary Capacity — Execution — Attesting Witnesses.</p> <p>In making a will, tlie testator must actually see, or be in a position to see, not only the witnesses, but the will itself, at the time of signing the same.</p> <p>.2. EVIDENCE — Conflicting—Questions for Jury.</p> <p>Where there is conflicting evidence as to a matter, it should be left ro the jury.</p> <p>.'3. APPEAL, BONDS — Time for Filings — Acts 1889>r eñ. 185.</p> <p>An appeal bond, filed and sent up with the record, Is In time within Acts 1889, ch. 135. i</p> <p>Isr tick matter of the will of Ice Snow, beard by Judge E. W. Timberlake and a jury, at November Term, 1900, of Surry County Superior Court. Erom a judgment sustaining the will, the caveators appealed.</p>

<p>ActioN by R. L. Bennett against The Western Union Telegraph Company, heard by Judge JE. W. Timberlahe and a jury, at November Term, 1900, of SuRRY County Superior Court. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by A. J. Fair against D. D. Sbelton and W. A. Whitaker, heard by Judge E. W. Timberlahe and a jury, at. November Term, 1900, of FoRSYTn Oounty Superior Court. From a judgment for the plaintiff, the defendants appealed..

<p>1. DIVORCE' — Affidavit’—The Code, seo. 1887 — Jurisdiction.</p> <p>All the requisites mentioned in the affidavit required by section 1287 of The Code are mandatory, and a failure to set out these averments in the affidavit ousts the superior court of jurisdiction.</p> <p>2. JURISDICTION — Exceptions and Objections — Supreme Court.</p> <p>Exception to the jurisdiction may be made for the first time in the Supreme Court.</p>

<p>1. PARTNERSHIP — Rignt of Surviving Partner■ — Receiver.</p> <p>It is the duty of a surviving partner to close up the affair's of the firm.</p> <p>2. PARTNERSHIP — Payment of Debts.</p> <p>A surviving partner is not compelled to pay the debts pro rata or in any prescribed order.</p>

<p>Ac-tioN by C. D. Wilkie against tibe Raleigh and Gape Fear Railroad Company. Petition to rehear. Petition allowed. For prior report, see 12T N. O'., 203.</p>

<p>1. CONTRACT — Breach—In Loco Parentis.</p> <p>Evidence in this case held sufficient to establish a contract between a grandfather and grandson to pay for services to be performed by grandson.</p> <p>2. ACTION — Contract.</p> <p>The cause of action in this case arose on death of decedent for breach of contract whereby plaintiff was to have a part of property of decedent, notwithstanding he was not to have the property until the death of the widow of decedent.</p>

<p>1. CORPORATIONS — Transfer of Stock — Liability For.</p> <p>Where a transfer of stock of a corporation is made on its books by an executor, the corporation is fixed with knowledge of the will and its contents.</p> <p>2. CORPORATIONS — Wrongful Transfer of Stoek by Executor.</p> <p>Where an executor wrongfully transfers specifically bequeathed stock to a purchaser, the corporation would not be liable in the absence of reasonable grounds to believe such transfer was not proper.</p> <p>3. CORPORATIONS — Wrongful Transfer of Stock by Executor— Negligence — Froximate Cause.</p> <p>The wrongful transfer by executors of stock in a corporation, making possible subsequent transfers, is the proximate cause of the loss of such stock through such subsequent transfers.</p> <p>4. LIMITATIONS OF ACTIONS — Remainders—Stoek.</p> <p>The statute of limitations does not run against one holding a remainder in stock, in an action for the wrongful transfer of the same, until the death of the person holding life interest.</p>

<p>1. JUDGMENT — Decree—Estoppel—Res Judicata — Ejectment.</p> <p>A decree not appealed from is an estoppel upon tlie parties thereto and those claiming under them, though it may he erroneous in law.</p> <p>2. EVIDENCE — Documentary Evidence — Admissibility—Trial.</p> <p>A certiried copy of a petition .a a suit is admissible in evidence upon proof of tne loss of the original record.</p> <p>3. JUDGMENT — Collateral AUaclc.</p> <p>A decree can not be impeached collaterally on the gz-ound that one recited therein as a party was not a party, or was an infant.</p> <p>4. EVIDENCE — Documentary Evidence — Affidavit—Trial.</p> <p>A person can not put an affidavit in proof as substantive evidence on cross-examinauon of witness for other party.</p>

<p>Plaintiff’s Appeal.</p> <p>ActioN by S. M. Weeks against Isaiah. McPhail, Bertha Herring and her husband Eufus Herring, Ada E. Weeks and her husband, J. C. Weeks, J. T. Wilkins, George Daugh-try and Daniel Loekamy, heard by Judge George H. Brown and a jury, alt April Term, 1900, of Sampson County Superior Court. From a judgment for less than relief demanded, the plaintiff and defendant appealed.</p>

<p>ActioN by Dicey A. Brown against D. G. Morisey, beard by Judge Frederick Moore and a jury, at December Term, 1900, of Duplin County Superior Court. Erom a judgment for the defendant, the plaintiff appealed.</p>

ActioN by Harvey Terry against T. IT. Robbins and Adelia S. Robbins his wife, and Lillian E. Naylor, heard by Judge A. L. Ooble and a jury, at March Term, 1900, of Pas-quotank County Superior Court. From a judgment for the defendants, tire plaintiff appealed.

<p>ActtoN by Lizzie 0. Neal against the Southern Railway Company, heard by Judge Thos. J. Shaw, at January (Special) Term, 1900, of McDowell County Superior Court. Erom a judgment for the defendant, the plaintiff appealed.</p>

ActioN by J aim W. Smith, against J. S. Carr and the Golden Belt Hoisery Company, heard by Judge W. A. Holes and a jury, at October Term, 1900, of Durham County Superior Oourt. Eroui a judgment for the defendant, the plaintiff appealed.

ActioN by R. M. Rosemian, administrator of Thomas Hoke, against Nora Hoke and others, heard by Judge E. W. Timberlahe and a jury, at December Term, 1900, of LiN-colN County Superior Court. Erom a judgment for the defendants, the plaintiff appealed.

Aotiost by tibe New Home Sewing Machine Company against Henry E. Seago, D. R. Seago and W. A. Marks, heard by Judge Thomas J. Slum and a jury, at the December Term, 1900, of StaNuy County Superior Court. From a judgment for the plaintiff, tbe defendants appealed.

ActioN by S. B. Howe against J. G. Hall and David Hemphill, receivers of the Chester and Lenoir N. G. R. R. Oo., and G. W. E. Harper, receiver of the Chester and Lenoir N. G. R. R. Co., and the Carolina and Northwestern Railway Company, heard by Judge W. S. O’B. Robinson, at February Term, 1901, of GastoN County Superior Court. From a judgment for the plaintiff, the defendants appealed.

ActioN by Henry T. Setzer against Laura A. Setzer, beard by Judge Fredericlc Moore and a jury, at August Term, 1900, of Catawba County Superior Court. From a decree of divorce a mensa et flioro, instead of a vinculo, as prayed, tbe plaintiff appealed. ■

ActtoN by T. L. Upton and Ella Upton, administrators of J. A. Upton, against the South Carolina and Georgia Extension Railway Company, heard by Judge B. W. Timberlahe and a jury, at Spring Term, 1901, of McDowell County Superior Court. From a judgment of nonsuit, the plaintiffs appealed.

<p>JUDGMENT — Setting Aside — Discretion of Court — Review Toy Supreme Court — Appeal.</p> <p>Tlie trial Court may set aside a judgment at the term at which it is rendered, and* this discretion is not reviewahle on appeal.</p> <p>Montgomery, J., dissenting.</p>

ActiON by Samuel Glenn, by bis next friend, J. W. Glenn, against the Norfolk and Western Railway Company, heard by Judge E. W. Timberlahe and a jury, at November Term, 1900, of Forsyth County Superior Court. The following is the testimony of the plaintiff: “I live out in the country in this county about four miles. I went to West Virginia about 1897. I was 19 years old. I went over there to work. I thought of working the mines at that time. My brother James and Fred.

ApplicatioN by George M. Lindsay, administrator, for leave to sell lands for tbe payments of debts, beard on appeal from tbe Superior Court Clerk, by Judge Frederick Moore, at Special (Fall) Term, 1900, of Greeks County Superior Court. R. E. Beaman and B. W. Edwards claimed title to the land, and from a judgment for tbe claimants, tbe plaintiff administrator appealed.

ActioN by the Exchange Bank against the Apalachian Land and Lumber Company, heard by Judge O. H1 Allen and a jury, at Fall Term, 1900, of Cheboeee County Superior Court. From a judgment for the plaintiff, the defendant appealed.

ActioN by Linus North and Sophia E. North, his wife, against Albert Bunn and Kitty Bunn, his wife, heard by Judge O. H. Allen and a jury, at Pali Term, 1900, of Tbaw-syi.vaNia County Superior Court. - Erom the following judgment, the plaintiff appealed: L. North and 8. IS. North v. Albert Bunn and wife Kittie Bunn, and J. 0. Dermid.

<p>AotioN by the Post-Glover Electric Company against the McEntee-Peterson Engineering Company, heard by Judge W. 8. O’B. Robinson, at March Term, 1901, of MeckleN-buisg Superior Court, by consent, as of February Term, 1901, of GastoN County Superior Court. The plaintiff, in addition to the judgment against the defendant for the debt, asked a further judgment subjecting to the satisfaction of the judgment the property which had been attached. To the refusal of this additional judgment, the plaintiff excepted and appealed.</p>

ActioN by B. J. Summerrow and Lizzie L. Summerrow against Herman and D. H. Baruch, heard by Judge W. 8. 0JB. Robinson and a jury, at January Term, 3901, of MecK-leNbubg County Superior Court. From judgment for plaintiffs, the defendants appealed.

ActioN by. the State on relation' of J. R. Dunham against W. K. Anders, heard by Judge Frederick Moore and a jury, at Spring Term, 1901, of Bladen County Superior Court.

<p>1. PLEDGES — Fiduciary Relations — Contracts — Sale — Burden of Proof — Collateral Security.</p> <p>Where a married woman, assigns to the mortgagee of her husband an insurance policy upon the life of her husband as collateral security for the mortgage debt, the law presumes fraud in a subsequent absolute sale of the policy to the mortgagee, and the burden is upon him to show that the purchase was tona fide and for a fair consideration.</p> <p>2. AGENCY — Declarations.</p> <p>Evidence of declarations of agent to prove agency is incompetent.</p> <p>3. HARMLESS ERROR — Error—Evidence.</p> <p>Where evidence erroneously admitted could not have damaged a party, its admission was harmless error.</p>

<p>1 BOUNDARIES — Location• — Question for Jury — Questions for Court — Devises—Ejectment.</p> <p>The Court should instruct the jury what are boundaries, and the jury should find and locate them.</p> <p>2. BOUNDARIES — Description■—Legacies and, Devises■ — Wills— Ejectment.</p> <p>A devise of certain tracts of land east of a road passes no part of such tracts west of such road.</p>

ActioN by R. B. Peebles, as trustee, and A. R. Peebles, against John W. Graham, as trustee, and Geo. M. Graham, heard by Judge Fred. Moore and a jury, at March Term, 1900, of the Superior Court of Dueham; County. From a judgment for the defendant on a cross action, the plaintiff appealed.

<p>ActiON by Lethia Wliitesides against the Southern Railway Company, heard by Judge E. IV. Timiberlalce, at Spring Term, 1901, of the Superior Court of McDowell County. From a judgment for the defendant, the plaintiif appealed.</p>

<p>ActioN by J. A. Paine, John Paine, Hester Paine, Laura Vann (wife of Jim Vann), Beckey Vann (wife of Wesley Vann), Jonas Paine, Mary Paine, Robert Paine, Dallas Jones, Ervin Jones, Manda (wife of Ervin Martin), Siss Meadows (wife of Vess Meadows), Laura Meadows (wife of Bege Meadows), John Paine, Joe Paine, Bill Paine, Sarah Ledford (wife of Van Ledford), Margaret Bradley (wife of Richard Bradley), Mary Wilson (wife of Dick Wilson), B. J. Norris, Nancy Norris, O. A. Norris, Mary Graves, Eliza Seeble (wife of M. W. Seeble), and others, against Mary Eorney (executrix of H. A. Eorney, deceased, and Isaac E. Paine, deceased), Robert A. Smith, John T. Puntch, J. P. .Sifford, M. W. Robinson, and V. P. Asbury (trustees of Marvin M. E. Church, South), A. Lee Cherry (Worshipful Master), and William Little (Secretary of Rock Spring Lodge, No. 341, A. F. and A. M.), beard by Judge E. W. Timberlalce at December (Special) Term, 1900, of Lincoln County Superior Court. From a judgment for plaintiffs, defendants appealed.</p>

<p>1. PLEADING — Answer.</p> <p>An allegation in answer that defendant has no knowledge of facts alleged in a certain paragraph of the complaint is not sufficient to put such facts in issue.</p> <p>S. PLEADING — Ansioer.</p> <p>A-n allegation in an answer that the defendant has no information of facts alleged in a certain paragraph of the complaint, and that he demands proof thereof, is not sufficient to put such facts in issue.</p> <p>3. AMENDMENT — Pleading—Demurrer—Discretion■—Practice.</p> <p>It is solely within the discretion of the trial judge to allow an amendment to a complaint after a demurrer thereto has been sustained, or to dismiss the action.</p> <p>4. EVIDENCE — Parol Evidence — Contract—Written Contract.</p> <p>Where the purchaser of mortgaged property entered into a written contract to indemnify the mortagor and the mortgagee against loss, the mortgagee having assigned the notes and mortgages for value, evidence of a subsequent parol condition to the contract of indemnity between the purchaser and one of the parties indemnified is inadmissible.</p> <p>5. LIMITATIONS OF ACTIONS — Amendment—Demurrer.</p> <p>When a demurrer to a complaint is sustained but a motion to dismiss is refused and an amended answer allowed to be filed — the amendment not stating a new cause of action— it is a continuation of the same action and the statute of limitation ceased to run at the beginning of the original action and not at the filing of the amendment.</p> <p>6. LIMITATIONS OF ACTIONS — Time of Commencing Actions — Reversal of Judgment — Nonsuit—The Code, Section 166.</p> <p>The Code, Section 166, authorizes the commencement of a new action or the same cause of action within one year after reversal of judgment on appeal, though the first complaint was insufficient to state a cause of action.</p>

<p>1. PINES AND PENALTIES — Public Schools — The Constitution, Art. 0, Sec. 5 — The Code, Sec. 3820.</p> <p>, Pines and penalties collected by municipal officers for violation, of ordinances belong to the common school fund of the county.</p> <p>2. LIMITATIONS OP ACTIONS — Fines and Penalties — Public Schools —The Code, Sec. 155, Subsec. 1.</p> <p>An action by a county board of school directors for fines and penalties collected by a city is barred within three years.</p>

<p>ActiON by Ann M. and E. F. Coffin against O. II. Smith and II. W. Blanchard, trading as Smith & Blanchard, heard by Judge 0. H. Allen, at Fall Term, 1900, of Superior Court of SwaiN County. Erom a judgment on report of referee in favor of defendants, the plaintiffs appealed.</p>

<p>Actiou by S. A. Sain, D. L. Porter, W. A. Porter, J. D. Porter, Mary C. Walsh, J. L. Walsh, J. M. Benson, S. J. Benson, Gr. W. Law, M. A. Law, Israel Mosteller and wife Barbara, Barbara Beam and Mary A. Sain against M. J. Baker and Dora S. Baker, his wife, heard by Judge E. W. Timberlahe and a jury, at December (Special) Term, 1900, of LiNConw County Superior Court. Erom a judgment for the plaintiffs, the defendants appealed.</p>

<p>PARTIES — Negligence—Death, hy Wrongful Act — Parent and Child —The Code, Sees. 1498 and 1499.</p> <p>A father can not maintain an action in his individual capacity for the death of his son hy wrongful act.</p>

<p>1. NEGLIGENCE — Personal Injuries — Master and, Servant — Employer and Employee — Damages.</p> <p>Tools of ordinary and everyday use, wliicli are simple in structure, requiring no skill in handling — such as hammers and axes — not obviously defective, do not impose a liability upon employer for injuries resulting from such defects,</p> <p>2. NEGLIGENCE — Employer and, Employee — Personal Injuries— —Damages.</p> <p>An employer is not liable for injuries to an employee occurring upon work done outside of the scope of his employment at request of another employee who had no authority to make the request.</p>

ActioN by Sarah Kramer, administratrix of Hugo Kramer, against the Southern Railway Company, heard by Judge E. W. Timberlake and a jury, at February Term, 1901, of the Superior Court of McDowell County. From a judgment for the plaintiff, the defendant appealed.

ApplioatioN of Margaret E. Heyer, administratrix of Jno. C. Heyer, for leave to issue execution against D. W. Eivenbark, liearcl by Judge E. W. Timberlak„ at March Term, 1899, of the Superior Court of PbNDee County. Erom a judgment affirming an order denying the application, the complainant appealed.

<p>ActioN bj J. C. Spence, administrator of estate of Z. E. Goodwin, against Peter N. Goodwin and others, heard by Judge A. L. Goble and a jury, at Spring Term, 1900, of PasquotaNK County Superior Co-urt.</p> <p>This was a special proceeding before the Clerk by the administrator to sell real estate to create assets, in which the infant defendants claimed a homestead in the lands of their ■father. The Clerk allowed the homestead and his judgment was affirmed in the Superior Court.</p> <p>The case was heard upon the following facts agreed:</p> <p>“1. That the plaintiff’s intestate died on or about June 1st, 1898, and that the plaintiff qualified as his administrator on .... day of January, 1900.</p> <p>“2. That at the time of the death of said Z. E. Goodwin he was seized in fee simple of the tract of land described in the petition in this cause and that the same is worth $800, ■upon which the widow is entitled to dower, and that it was all the land the said Goodwin owned in fee simple at his death.</p> <p>“3. That he left him surviving the three defendants who are under 21 years of age and also a widow, but the widow is not the mother of said children.</p> <p>“4. That the said three defendants own a tract of land as tenants in common outside of any interest in said land de*-scribed in the petition which they inherited from their mother, and is worth $400, said land situated in Chowan County.</p> <p>“5. That the said intestate owed debts at the time of his death more than his personal property could pay.</p> <p>“6. That all the defendants were properly served with summons and were properly before the Court and were represented by M. B. Culpepper, who looked after their interest. He, the said M. B. Culpepper, being duly appointed by the Court, as appears in the record.</p> <p>“7. That on January 25, 1900, plaintiff filed the petition in this cause, summons having issued on January 23, 1900. That on February 1, 1900, said guardian ad litem was appointed, as appears by the record, and he was duly served.</p> <p>“8. That on February 14, 1900, said defendants filed the answer set out in the petition by their guardian ad litem, which admits the allegations of complaint and prays the petition of plaintiff be granted.</p> <p>“9. That on February 17, 1900, said cause was continued until February 22, 1900.</p> <p>“10. That on February 22, 1900, said cause was heard with all the parties before the Court and the order of sale was made to sell the lands described in the petition in the cause and no homestead was asked or prayed for by the defendant.</p> <p>“11. That no notice of appeal was given from said judgment of the Clerk on said day, nor within ten days thereafter, nor at any time.</p> <p>“12. That on said February 22, 1900, tbe plaintiff, in pursuance of said decree, advertised tbe said lands to be sold, according to law, on March 24, 1900, and nothing more was said till March 21, 1900, when defendants filed the petition for homestead, as set out in the record, and it was then agreed the sale might be continued without prejudice to either party till the case was finally heard as it would be expensive to procure an injunction to prevent sale.</p> <p>“13. That plaintiff filed the answer to said petition for homestead on March 22, 1900, and same was heard by the Clerk, who rendered the judgment in the record of March 22, 1900.</p> <p>“14. That said M. B. Culpepper was not an attorney-at-law and was not represented by an attorney in filing his answer, and was not at the time informed as to legal rights of defendants.</p> <p>That said M. B. Culpepper has acted in a great number of cases in the capacity of guardian ad litem, similar to this in which petitions were filed for sale of land for assets when there were minors. That said M. B. Culpepper is insolvent.”</p> <p>From a judgment for the defendants, the plaintiff appealed.</p>

ActioN by Ellen Carroll, Lillian Carroll, Anson. Carroll, Henry Carroll, tlie last three infants, by their next friend and mother, Ellen Carroll, against James Montgomery, heard by Judge A. L. Goble and a jury, at Fall Term, 1900, of the Superior Court of WaeeeN County. Erom a judgment for the plaintiffs, the defendant appealed.

ActioN by the Gwyn Harper Manufacturing Company against tbe Carolina Central Railroad Company, beard by Judge E. ~W. Timberldke and a jury, at December (Special) Term, 1900, of tbe Superior Court of LINCOLN County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

<p>ActioN by Robert Williams against the Southern Railway Company, heard by Judge II. B. Skarbuch and a jury, at March Term, 1901, of the Superior Court of Catawba County. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by Sally Wise and others against D. P. Leonhardt and others, heard bv Judge E. W. Timberlahe, at December (Special) Term, 1900, of Superior Court of Lincoln County. From a judgment for the defendants, the plaintiffs appealed.

ActioN by S. J. Taylor, executor of Babel Taylor, against A. Capehart, Minnie M. Capehart and Leroy Capehart, executors of W. J. Capebart and W. T. Capebart, beard by Judge A. L. Góble, and a jury, at Fall Term, 1900, of tbe Superior Court of Beetie County. From a judgment for tbe plaintiff, tbe defendants appealed.

<p>1.SUCCESSION — Descent—Distribution-—-Notice-—The Code, Sec. 1US.</p> <p>Real property conveyed by an beir after tbe lapse of two years from the death of tbe intestate is liable to payment of tbe debts of tbe intestate, provided tbe purchaser has notice of the debts.</p> <p>2.ADMINISTRATOR — Executors—Bond—Principal and Surety.</p> <p>A mortgage given by an administrator to a surety on bis bond to secure tbe latter against loss inures to tbe benefit of tbe creditors of the estate.</p> <p>3.LIMITATION OF ACTIONS — Foreclosure of Mortgages — Personal Liability — Administrator—Surety.</p> <p>Property mortgaged by an administrator to a surety to secure him against loss may be subjected to payment of estate debts, though the personal liability of tbe surety is barred.</p> <p>4.PRINCIPAL AND SURETY — Succession—Administrator—Insolvency.</p> <p>Estate creditors are entitled to have tbe real estate of intestate, conveyed after two years with notice to purchaser, subjected to satisfaction of their judgments, irrespective of tbe solvency or liability of tbe surety or bond of administrator.</p>

ActioN by John W. Eowe and M. Y. Dosh against Cape Fear Lumber Company, heard by Judge Fred. Moore and a jury, at December Term, 1900, of the Superior Court of Pendee. County. From a judgment for the defendants, the plaintiffs appealed.

ActioN by B. E. Martin and J. 0. Elythe against W. H. Buffaloe, M. L. T. Davis, J. M. Elytbe and E. P. Buxton, executors of S. N. Buxton, beard by Judge W. A. Holce and a jury, at Spring Term, 1899, of tbe Superior Court of NORTHAMPTON County. Erom a judgment for tbe plaintiffs, tbe defendants appealed.

ActioN by Willie G. Griffin, Susan E. Moser, E. L. Hudson, Amanda Hudson (Ms wife), Rebecca Alexander, David Alexander and Tbomas Alexander (tbe last two infants under twenty-one years of age), by defendants, heard by Judge II. R. Siwrbuck, upon complaint and demurrer to counter-claim. Erom judgment for plaintiffs, the defendants appealed.

<p>ActioN by M. Millbiser, Gr. Millbiser, E. Millbiser, S. ITirsb, trading as M. Millbiser, against L. Lee Marr, W. T. Conley, M. E. Conley, trading as L. Lee Marr & Co., and R. L. Leatberwood, beard by Judge O. H. Allen and a jury, at Eall Term, 1900, of tbe Superior Court of Swain County.</p> <p>T'bis action was brought to recover tbe balance on an account alleged to be due plaintiffs by defendants. It was in evidence and uncontradicted tbat some time in tbe year 1896 a statement of the account against defendants and in favor of plaintiffs was sent to one R. L. Leatberwood, an attorney, for collection. It was further in evidence tbat W. T. Conley was tbe authorized agent of M. B. Conley & Co., who were tbe members of or successors to tbe firm of L. Lee Marr & Co. There was evidence tending to prove tbat, after receiving tbe account of Millbiser & Co., against Marr & Co., and while the same was in bis bands for collection, tbe said Leatberwood was attorney for one W. W. Ladd, Jr., who was defendant in certain actions for the enforcement of certain liens filed against tbe property of said Ladd; and tbat under and by virtue of a certain agreement of compromise, entered into between tbe said Ladd and tbe lienors for tbe payment of tbe liens so filed, a certain sum of money, to-wit, $1,000, was placed in bank to tbe credit of said Leatb-erwood for tbe purpose of carrying out tbe terms of said agreement. There was also evidence, nncontroverted, showing that certain of the liens so filed as above stated were assigned by the lienors to' W. T. Conley.</p> <p>W. T. Conley testified that Leatherwood came to him and aslced him to' release the lumber upon which- were the liens assigned to him, stating that he, Leatherwood, would pay him, Conley, the amount of said liens, as he had the money deposited to his credit for that purpose. Witness further testified that he did allow the said Leatherwood to remove certain of the liens assigned to him, with the express understanding that the money due thereon should be applied to the payment of the Millhiser indebtedness. That that amount of liens so removed was in excess of said indebtedness to said Millhiser & Co. That witness, Conley, immediately thereafter went to the office of said attorney, Leatherwood, and requested payment for said liens, telling him, Leather-wood, at the same time, he wished to apply same to settle the Millhiser account, then in his, Leatherwood’s, hands. Whereupon, he, Conley, was told by Leatherwood that the money was in bank to his credit, and that, instead of giving him, Conley, a check and letting him endorse same back to him, that he, Leatherwood, would send his check to- Mill-hiser & Co. in settlement of their account. Witness further states, that he accepted this proposition as satisfactory, and relying upon such statement as made to him, that the money was in the bank to the credit of Leatherwood, for the express purpose of paying off said liens, considered the matter settled. Witness further testified, that he requested said Leatherwood to give him a receipt against the Millhiser claim, and, in reply, Leatherwood told witness that at that time he wag busy, but would give him the receipt in a short time, and afterwards refused, because he said Ladd & Co. had drawn the money out of bank and Millhiser would be after him for the money.</p> <p>There was other evidence tending to show the agreement of Conley and Leatherwood as to matters above set out. The debt of Millhiser & Co. was admitted to be due and unpaid unless the transaction above set forth is a payment.</p> <p>His Honor charged the jury that the agreement between Conley and Leatherwood, as attorney for Ladd & Co., did not constitute a payment of money to the attorney for the plaintiffs under instructions.</p> <p>From a judgment for the plaintiffs, the defendants appealed.</p>

<p>1. ASSIGNMENTS FOR BENEFIT OF CREDITORS — Fraud—Preferred Creditors — Badge of Fraud.</p> <p>The relationship of the parties, in an assignment for the benefit of creditors, while a circumstance to be considered, does not amount to a badge of fraud.</p> <p>2. EVIDENCE — Assignments for Benefit of Creditors — Declarations ■ — Admissions.</p> <p>In an action to set aside a deed of assignment, declarations of the assignor made after the execution of the deed of assignment, are not competent, unless a prima facie case of conspiracy between assignee and assignor is established.</p>

<p>PetitioN to rehear modified and dismissed. For former per curiam order, see 127 N. 0., 581.</p>

ActioN by J. W. Cook against the Southern Railway Company, heard by Judge Thos. J. Shaw and a jury, at April Term, 1900, of the Superior Court of Bukke County. From a judgment for the plaintiff, the defendant appealed.

ActioN bv Thomas Boutten against the Wellington and Powellsville Eailroad Company, beard by Judge íl. B. Btar-buck, at Spring Term, 1900, of tbe Superior Court of Bertie County. Action for damages received on tbe track of tbe defendant. Plaintiff testified in bis own bebalf as follows: ‘‘Last year I was at Ahosky, in the employ of the Norfolk and Carolina Railroad Company. Had started to- my work. Work carried me to this side of Stony Creek.

ActioN by J. E. Moore against Charles Cohen, beard by Judge H. R. Siarbuch and a jury, at March Term, 1900, of tbe Superior Court of Halifax: County. From a judgment for the defendant, tbe plaintiff appealed.

<p>ActioN by R. W. King against A. Cooper, W. J. Crisp and Tbos. I. Jarvis, beard by Judge H. B. Starbuck and a jury, at 'December Term, 1900, of the Superior Court of Pitt County. From a judgment for the defendants, the plaintiff appealed.</p>

ActioN by B. J. Best, surviving partner of B. J. & E. E. Best, against the British and American Mortgage Company, heard by Judge Fred. Moore, at March (Special) Term, 1900, of the Superior Court of G-keewe County. From a judgment dissolving attachment of plaintiff and dismissing the action, the plaintiff appealed.

ActioN by John G-. Bragaw against the Supreme Lodge Knights and Ladies of Honor, heard by Judge A. L. Goble and a jury, at February Term, 1901, of the Superior Court of Beaufort County. Erom a judgment for the plaintiff, the defendant appealed.

ActioN by W. T. Lamb, by his next friend, J. M. Lamb, against I. Littman, heard by Judge H. B. Bryan and a jury, at November Term, 1900, of the Superior Court of RowaN County. Erom a judgment for the defendant, the plaintiff appealed.

<p>1. EVIDENCE — Fidelity and Guaranty Insurance — Bond—Principal and Surety — Surety Companies.</p> <p>In an action by a bank upon tbe bond of its casbier, a memorandum of tbe examination of tbe casbier before tbe directors prior to tbe suit, is competent evidence.</p> <p>2. PRINCIPAL AND SURETY — Bond—Surety Company — Fidelity and Guaranty Insurance — Acts 1899, Chap. 80, Sec. 5.</p> <p>Under Acts 1899, Cbap 80, Sec. 5, a surety company can be released from its liability on a bond only by getting off tbe bond.</p> <p>3 FIDELITY AND GUARANTY INSURANCE — Bond—Construction —Principal and Surety — Surety Company.</p> <p>A surety bond should be construed most strongly against tbe company and most favorably to its general intent and essential purpose.</p> <p>4. FIDELITY AND GUARANTY INSURANCE — Bond—Breach— notice — Principal and Surety — CasMer.</p> <p>Where tbe plaintiff, in action on a surety bond, witbin a reasonable time and with due diligence, under the circumstances, gives notice of tbe default of its casbier, it is a sufficient compliance with tbe requirement of immediate notice.</p> <p>5. FIDELITY AND GUARANTY IN SUR AN CE — B ond — Breach— Notice — Principal and Surety — Cashier.</p> <p>Where a surety company on bond of casbier is not notified immediately of default of tbe casbier, it does not suffer by tbe delay.</p> <p>6. FIDELITY AND GUARANTY INSURANCE — Insurance—B ond— Breach — Principal and Surety — Cashier—Instructions.</p> <p>In an action on surety bond, an instruction that tbe care and supervision required of officers of a bank was sue** as ordinarily prudent men would give, tvas correct.</p>

ActioN by B. <T. Fisher against the Greensboro Water Supply Company, heard by Judge E. 1'F. Timber!ake and a jury, at J anuary (Special) Term, 1901, of the Superior Court of Guilford County. From a judgment ex contractu for the .plaintiff, the plaintiff appealed.

ActioN by W. D. Bryan against the Southern Eailway Company, beard by Judge E. W. Timberldke and a jury, at March Term, 1901, of 'tbe Superior Court of Oiatawba County. From a judgment for 'tbe plaintiff:, 'tbe defendant appealed.

<p>DEEDS — Seal — Presumptions — Evidence — Competency—Sheriff’s Deeds — Taw’Titles.</p> <p>Where a Sheriff’s deed has been lost and the copy on the registration hoots is offered in evidence' hut has no seal thereto, the law will not presume from the words “Given under my hand and seal,” that the original bore a seal.</p> <p>Clark and Montgomery, J. J., dissenting.</p>

<p>1. LIBEL AND SLANDER — Privileged Communications — Questions for Court.</p> <p>Whether a speech by the president of a college, made during an investigation of charges against him, is a privileged communication, is a question of law.</p> <p>2. LIBEL AND SLANDER — Malice—Privileged Communications.</p> <p>That one who publishes a privileged communication is indifferent to the consequences, does not show malice.</p> <p>3. LIBEL AND SLANDER — Qualified, Privilege.</p> <p>This case was properly tried as one of qualified privilege.</p> <p>4. LIBEL AND SLANDER — Malice—Qualified Privilege — Instructions — Privileged Communications.</p> <p>The instruction in this case was correct as to malice in communications qualifiedly privileged.</p> <p>5, LIBEL AND SLANDER — Privileged Comunications — Malice— Burden of Proof.</p> <p>Where a qualifiedly privileged publication is admitted by defendant, the burden of proof is on the plaintiff to show malice in the publication.</p> <p>6. LIBEL AND SLANDER— Malice.</p> <p>It is not necessary that malice of defendant should he against the plaintiff personally, hut malice will he inferred if the publication is not made in good faith.</p> <p>7. LIBEL AND SLANDER — Privileged Communications.</p> <p>Where charges are brought against a college president his defense of himself before the college trustees is a privileged communication.</p> <p>8. LIBEL AND SLANDER — Privileged Communications — Questions for Court.</p> <p>The facts being uncontroverted, it is a question for the Court whether a publication is privileged.</p> <p>9 LIBEL AND SLANDER — Privileged Communications — Questions for Court.</p> <p>Where a publication is privileged,' or conditionally privileged, whether there is intrinsic or extrinsic evidence of malice, is a question of law for the Court.</p> <p>10. LIBEL AND SLANDER — Malice — Privileged Communications— Evidence.</p> <p>The alleged libelous statements herein set forth do not bear such clear evidence of malice on tlieir face as to entitle them to be considered by the jury as evidence of malice.</p> <p>11. LIBEL AND SLANDER — Pleading—Complaint—Answer.</p> <p>The failure of defendant to deny the allegations of complaint of good character of plaintiff and his innocence of charges made does not amount to an admission that the publication complained of was false.</p> <p>12. EVIDENCE — Libel and Slander — Allegations—Surplusage.</p> <p>Allegations in complaint of good character and innocence of plaintiff are superfluous, and though not denied by the defendant, are incompetent as evidence.</p> <p>18. DAMAGES — Libel and Slander — Evidence.</p> <p>Before damages can be recovered by one by reason of words spoken or published of him in his profession or office, he must have been actually engaged in the work of his profession at the time the words were written or spoken.</p>

ActioN by T. E. Vann, administrator of Darius Edwards, against D. K. Edwards, beard by Judge T. A. McNeill and a jury, at Fall Term, 1900, of tbe Superior Court of ITerteoRD ■County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Emily Skinner, administratrix, against the Wilmington 'and Weldon Railroad Company, heard by Judge J. W. Bowman, aft February Term, 1900, of the Superior Court of Wilson Ooumity. From a judgment dismissing the action, the plaintiff appealed.

<p>1. INTEREST — Lex Loei Contractus — Lex Loci Solutionis — Conflict of Laws.</p> <p>Money loaned in Virginia on real estate in North. Carolina is governed by the rate of interest in North Carolina.</p> <p>2. USURY — Interest—Negotiable Instruments — Purchaser Without Notice.</p> <p>A note embracing usurious interest is void in the hands of a purchaser before maturity and without notice.</p> <p>3. APPEAL — Review-—Assignment of Error — Rehearing—Exceptions and Objections.</p> <p>Where no exception is taken in trial court to a' ruling, and no error is assigned upon rehearing, the Supreme Court will not review the ruling.</p> <p>4. USURY — Negotiable Instruments — Personal Defense.</p> <p>The plea of usury being a personal plea, can be taken advantage of only by the borrower or debtor or other person directly connected with the transaction, upon whom the burden of the usury falls.</p> <p>5. ESTOPPEL — Judgment.</p> <p>A judgment which provides that issues relating to usury are reserved by consent to be passed on by referee does not estop the raising of the question of usury before a referee.</p> <p>6. ESTOPPEL — Judgments—Representations—Statements.</p> <p>Representations and statements not relied or acted on by the party to whom made do not work an estoppel.</p>

Actiow bv The Friedenw'ald Company 'against Sparger Bros, and others, heard by Judge B. W. TimberlaTce, at November Term, 1900, oí the Superior Court of Surry County. From a judgment for the defendants, the plaintiff appealed.

<p>I-PRAUDULENT CONVEYANCES — Mortgages—Subsequent Creditors —Prior Mortgagees — Evidence—Fraud.</p> <p>The facts in this case are insufficient m be submitted to the jury on the question as to whether a mortgage was fraudulent as to subsequent creditors.</p>

<p>Actiok by Walter Moore against The Charlotte Electric Street Railway Company, heard by Judge W. S. O’B. Robinson, at March Term, 1901, of the Superior Court of Mece-lenbueg County. From a judgment of nonsuit, the plaintiff appealed.</p>

<p>INSURANCE — Proxy—Estoppel—Tested Rights.</p> <p>A resolution passed at a meeting of a mutual benefit association depriving a member of vested rights under his insurance contract, does not bind him by reason of his proxy being sent to the meeting.</p> <p>Montgomery, J., dissenting.</p>

<p>PetitioN to rehear this case dismissed. Eor former opinion, see 126 N. C., 97.</p>

<p>1. INSURANCE — Contract — Mutual Benefit Associations — Vested R-ghts</p> <p>A mere general consent by a member of a mutual benefit association to the amendment of its by-laws and constitution does not authorize such a change as will destroy his vested rights.</p> <p>2 INSURANCE — Vested Rights — Recovery of Premiums — Remedy.</p> <p>Where a mutual benefit association violates its contract, the most practical remedy of a member is to bring action for the premiums paid, with interest thereon.</p>

ActioN by J. A. Perry, administrator of Pink Perry, against the Western North. Cair’odiinla Raiilroiadl, hearld by Judge W. B. Council and a jury, at January (Special) Term, 1901, of the Superior Court of Bueke County. From, a judgment for the plaintiff, the defendant appealed.

ActioN by J. M. land J. A. Cutler against the Roanoke Railroad and Lumber Company, heard by Judge T. A. Mc-Neill and a jury, at Fall Term, 1900, of the Superior Court of WASHINGTON County. From a judgment for the plaintiffs, the defendant appealed.

<p>ActioN by Gr. W. Vanderbilt against Bultler Brown, William Sizemore, Andrew Sizemore and T. L. Jenkins, beard by Judge O. R. Allen and a jury, at Fall Term, 1900, of tbe Superior Oourt of Tbansylvania C'ounty. From a judgment for tbe plaintiff, tbe defendants appealed.</p>

ActioN by Ellen J. Brinkley against J. II. Brinkley, N. W. Spruil and wife Mary C. Spruil, Hester Y.'Brinkley,A. J. Pierce and wife, Annie J. Bierce, and Luther Brinkley, by bis guardian, N. W. Spruil, heard by Judge T. A. McNeill and a jury, ait Eaill Term, 1900, oí the Superior Court of WASHINGTON County. From a judgment for the defendants, ■the plaintiff appealed.

<p>EVIDENCE — Sufficiency—Railroads—Personal Injuries — Contributory Negligence.</p> <p>Evidence in this case as to contributory negligence of an employee was sufficient to preclude a recovery and the plaintiff was properly nonsuited.</p> <p>Douglas, J., dissencing.</p>

ActioN by C. W. Broadfoioit against tike City of Fayette-ville, beard by Judge Fred. Moore, at February Term, 1901, of tbe Superior Court of Cumberland County. From a judgment for plaintiff for the amount of the bonds and interest at the raJte of 7 per cent, both parties appealed.

ActioN by Samuel S. Coley against the North Carolina Railroad Company, beard by Judge W. A. Hoke and a jury, at February Term, 1900, of the Superior Court of Wake County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by Minnie O. Layden against the Endowment Hank of the Knights of Pythias of the World, heard by Judge II. JR. Bryan, at September Term, 1900, of the Superior Court of DavidsoN County.</p> <p>The following is the statement of the ease on appeal. This was .a civil action returnable to Eall Team of the Superior Court of Davidson County, held on the first Monday in September, 1900, E. B. Bryan, Judge, presiding, for the recovery of throe thousand dollars ($3,000) upon ’an insurance policy issued by defendant company 'on the life .of T. L. Lay-den, plaintiff’s intestate.</p> <p>In apt time, namely, before defendanit’s time for -answering bad expired, the defendant company, by its attorneys, moved to remove this aictioor into the Circuit Court of the United States in and for the Fourth District of Western North Carolina, and nresented a petition and bond, copies of which are herewith attached and mlade a part of this ease on appeal. The motion for removal was made upon tibe ground that the defendant company ivas, ait the beginning of this action and at the time of the filing of the said petition, a nonresident of the State, of North Carolina, and that the plaintiff was at the said time ~a resident of the said State; and upon the further ground that it was a corporation organized by Act of the Congress of the United States, and hence that, the controversy arose under the Constitution and laws of the United States (28 U. S. Statutes-at-Large, 96, ch. 119), approved Ume 29, 1894.</p> <p>This motion was resisted by plaintiffs, upon the grounds that the defendant company was a corporation under the laws of the State of North Carolina, having theretofore amended her complaint by leave of Court, setting forth this fact, which complaint wias not verified.</p> <p>This motion his Honor refused, upon the ground that the defendant had become a domestic corporation under the Act known as the “Craig Act;” and from this order refusing to order the removal of this cause into the Circuit Court of the United States, defendant excepted and appealed to the Supreme Court.</p> <p>It appears that in apt time the defendant filed the following petition for removal, together with the bond required by law: “Com-es the defendant, Supreme Lodge Endghits of Pythias, sued herein as the Endowment Bank Knights Pythias, and shows to the Court:</p> <p>“That this suit is brought by the plaintiffs to recover the sum of $3,000 upon a certificate of membership in the Endowment Rank Knights of Pythias, issued by the defendant, in which said certificate were named the- said plaintiffs as beneficiaries, and is wholly of a civil nature; that the matter and amount in dispute in said suit exceeds, exclusive of interest and costs, the sum or value of $2,000, all of which will more fully appear by the complaint in said suit, filed July 5, 1900, which is hereby referred to 'and made a part hereofr that the said suit is one arising under tibe laws of the United States; that tire said Supreme Lodge Knights of Pythias is,, and was at the time of the commienoemenit of said suit, a nonresident of this State and a Corporation organized and existing under the Act of Congress, -to-w-it, tire Act approved May 5, 1810, entitled “An act to provide for the creation of corporations in -the District of Columbia by general law” (16 U. S. Statutes, page 98), and the amendments thereto, and an act was passed, “An act to incorporate the Supreme Lodge Knights of Pythias;” approved June 29, 1894 (28 Staf. of L., 96, ch. 119). That the said certificate was so issued by the defendant, under* and by virtue of authority derived from and under said acts of Congress; and thatt 'the same, and acts done under and in pursuance thereof, are involved in this-action. That the plaintiff, at the time of the commencement of this action, was, and still is, a resident and citizen of the-State of North. Carolina. That the time within which the said Supreme Lodge Knights of Pythias is required by the laws of the State of North Carolina, and the rules and practice of said court, to answer or plead to said complaint in said suit, has not yet expired. That said Supreme Lodge Knights of Pythias makes and files- herewith a bond in tihe sum of' $500, with good and sufficient surety, for its entering into the-Circuit Court of the United Silabes in and for the Eourth District of Western North. Carolina, on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be 'awarded by said Circuit Court, if it shall hold that this suit was wrongfully or improperly removed -thereto. Wherefore, 'the Supremle Dodge Knights Pythias prays this Court to proceed no further herein, except to accept this petition and bond, and to make an order requiring said defendant to enter and file a copy of the record herein in said Circuit Court of tihe United States, as required by law.”</p> <p>The complaint is as follows:</p> <p>The plaintiffs complaining of defendants, allege:</p> <p>1. That in the year 1894, at .and in the county and State aforesaid (Davidson County, North Oarolinia), T. E. Layden, deceased, of Lexington, N. C., took of the defendants a duly executed policy of insurance, No. 49,165, whereby they agreed to' pay the sum of $3,000, at his death, to 'Minnie C. Layden, his 'wife and surviving children,’ and said T. E. Layden paid all the premiums and dues regularly for a period of six years, and up to his death, and fully complied with all the conditions of said policy.</p> <p>2. That- the plaintiff, Minnie C. Layden, was the wife therein referred to', and E. LI. Layden, for whom Minnie 0. Layden, his'mother, is guardian, is the only child surviving, or otherwise, of said T. E. Layden, insured.</p> <p>3. That said T. E. Layden died in Lexington, N. C., on the 15th day of January, 1900, while in good standing, and due notice and proof of death were made to Ihe defendants, insurers, on blanks provided by them 'as the policy required.</p> <p>4. That the defendants refused, and still refuse to pay the beneficiaries herein recited, the $3,000 due on 'and by said policy, on the 15th day of January, 1900, and said amount is still due and unpaid to plaintiffs.</p> <p>'Wherefore, the plaintiffs demand judgment against the defendants:</p> <p>1. Eor the sum of $3,000 with interest from the 15th day of January, 1900, till paid.</p> <p>2. Eor such other 'and further relief as the plaintiffs may be entitled to in law and equity.</p> <p>3. Eor the costs of this action.</p> <p>The amendment to the complaint is in the following words:</p> <p>“2. That the defendant company herein sued and against whom this plaintiff asks relief is a corporation duly formed under and by authority of the laws of tíre State of North Carolina, doing business in said State as an insurance company.”</p> <p>From an order refusing' tiO' remote this cause to the Federal Court, the defendant appealed.</p>

ActioN by Gr. W. Vanderbilt and others against R. J. Picfcelsimer and others, heard by Judge O. H. Allen and a jury, at Fall Term, 1900, of the Superior Court of Transylvania County. From a judgment for Hie plaintiffs, the defendants appealed.

<p>ActioN by itüie Commissioners of Beaufort County against tbe OH Dominion Steamship Company, heard by Judge T. A. McNeill, at December Term, 1900, of the Superior Court of Beaufort County. From a judgment for the defendant, the plaintiffs appealed.</p>

<p>1. DEDICATION — Irrevocable Dedication of Streets — Plats■—Land Companies.</p> <p>"Where lots are sold by reference to a plat representing a division of a large tract of land into subdivisions of streets and lots, the purchaser of a lot acquires the right to have all and each of the streets kept open.</p> <p>2. DEEDS — Map—Plat—Registration—Dedication.</p> <p>A map or plat referred to in a deed becomes a part of the deed and need not he registered.</p>

INDICTMENT against George Lee Hewlin, beard by Judge Thos. A. McNeill and a jury, at November Term, 1900, of Beaueoet Coiunty Superior Court. From an order quashing the indictment the State appealed, and from a refusal of the court to then discharge the defendant, he appealed.

This was an indictment against C. M. Williams, beard by Judge T. A. McNeill and a jury, at November Term, 1900, of BeaufoRt Comity Superior Court. From a verdict of guilty and judgment thereon, the defendant appealed.

<p>IhdictmbNT against George Rogers and others, heard by Judge H. R. Slarbuch, at October Term, 1900, of Vance County Superior Court. From a quashal of the indictment, the Solicitor for the State appealed.</p>

<p>INSTRUCTIONS — Homicide—Excusable Homicide — Request of Jury for Instructions.</p> <p>Failure of the court to define, excusable homicide on request of jury is error, although the court had previously instructed the jury as to excusable homicide.</p>

INjdictmeNT •against J. C. Crews, heard by Judge E. W. Timberlake and a jury, at November Term, 1900, of Foe-syth Country Superior Court. From a verdict of guilty and judgment thereon, the defendant appealed.

iNRrcTMRNT against Raymond Hunt, beard by Judge E. W. Timberlake and a jury, at Spring Term, 1901, of Catawba County Superior Court. Eroan a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against Walter Shuford, heard by Judge George A. Jones and a jury, at April Term, 1901, of Buncombe County Superior Court. After verdict o-f guilty, the defendant moved in arrest of judgment, and excepted to refusal of said motion. From judgment, the defendant appealed.

INDICTMENT against Elijah McCourry, beard by Judge W. B. Council, at Eall Term, 1900, of the Superior Court of Yancey County, on appeal from the Western Criminal District Court. Erom a judgment sustaining the judgment of the Criminal District Court, the defendant appealed.

INDICTMENT against Arthur Baum, heard by Judge O. H. Allen and a jury, at March Term, 1900, of the Superior Court of OukeitucK County. From a verdict of guilty and judgment thereon, the defendant appealed. This is a criminal action on indictment, charging the defendant with unlawfully obstructing the navigation of a part of Currituck Sound, known as North Sand Cove.

<p>INDICTMENT against W. S. Stancill, beard by Judge Thos. J. Shaw and a jury, at September Term, 1900, of the Superior Court of Gaston County. From a verdict of guilty of manslaughter, the defendant appealed.</p>