Volume 129 — North Carolina Reports

AotioN by M. A. and P. P. Shields, executors of Jas. Gr-Sliields, against tbe Norfolk and Carolina Railroad Co., beard by Judge T. A. McNeill, at June Term, 1901, of TTat.t-rax County Superior Court. Prom a judgment for the plaintiffs, the defendant appealed.

ActxoN by Margaret Luton, administratrix of A. Bad-ham, against Hannibal Badham, heard by Judge O. H. Allen and a jury, at Spring Term, 1901, of Chowan County Superior Court. From a judgment for the defendant, the plaintiff appealed.

ActioN by J. Rumbo against tbe Gay Manufacturing Co., beard by Judge O. H. Allen, at Spring Term, 1901, of tbe Superior Court of ChowaN County. Erom a judgment refusing defendant tbe relief it demanded and dismissing tbe action, both parties appealed.

ActioN by M. Makely and W. 0. Montgomery against A. Boothe Company and A. S. Fnlford, beard by Judge O. H. Allen, at Spring Term, 1901, of the Superior Court of Chowan County. From an order denying a change of venue, the defendants appealed.

<p>JUDGMENTS — Motions—Actions—Practice—Procedure.</p> <p>From the facts in this case, a motion in the cause, and not a new action, was the proper procedure.</p>

AotioN by C. H. Robinson and others against E. E. Lamb, heard by Judge O. E. Allen, at Spring Term, 1901, of Cam-bios County Superior Court. Erom a judgment for the defendant, the plaintiffs appealed.

<p>ActioN by W. W. Midgett against J. D. Midgett, beard by Judge Thos. A. McNeill and a jury, at Fall Term, 1900, of I)ARE County Superior Court. From a judgment for tbe plaintiff, tbe defendant appealed.</p>

ActioN by O. D. and Annie A. Bountree against Oaesar Blount and others, Trustees of Hickory Hill Baptist Church, heard by Judge W. A. Solee and a jury, at May (Special) Term of the Superior Court of Pitt County. Prom a judgment for the plaintiffs, the defendants appealed.

AgtioN by J. F. Ives, administrator of Mary E. Ives, against the Mutual Life Insurance Co. of New York, heard by Judge Thomas A. McNeill, at Spring Term, 1901, of the Superior Court of CkaveN County. From a judgment for the defendant, the plaintiff appealed.

ActioN by IX R. Frazier against Penina Frazier and others, heard by Judge Frederick Moore and a jury, at November Term, 1900, of the Superior Court of Greene County. From a judgment for the defendants, the plaintiff appealed.

ActioN by L. J. Moore and others against the Mutual Reserve Fund Life Association, heard by Judge A. L. Coble, at Spring Term, 1901, of the Superior Court of Chaven County. From .a judgment for tbe defendant, tbe plaintiffs appealed.

ActioN by C. E. Brite against the Mount Airy Manufacturing Co., heard by Judge T. A. McNeill and a jury, at Fall Term, 1900, of the Superior Court of Pamlico County. From a judgment for the plaintiff, the defendant appealed.

<p>CONTRACTS — Delivery—Shipment—Sales.</p> <p>Where a person sells a certain number of bags of peanuts and delivers them co a carrier according to contract, and before tbe shipment thereof by the carrier the seller opened the car and placed some additional bags therein — not delaying thereby the shipment — the placing of the additional bags in the car does not affect the right of the seller to pay for the bags delivered according to the contract.</p> <p>Montgomery,, J.„, dissenting.</p>

<p>1. BONDS — Penalty—Surety.</p> <p>Where a defendant, to secure a continuance, is required to give a bond to cover such damages as may be recovered for rents and profits, and the recovery is for more than the penalty, judgment should be given against the surety for the amount of the penalty.</p> <p>2. APPEAL — Premature.</p> <p>Where a judgment is given against a surety on a bond, and execution is stayed until the amount of betterments due defendant is ascertained, an appeal by the surety before such an amount is ascertained, is premature.</p> <p>Douglas, J., dissenting.</p>

<p>PetitioN by B. B. Massenburg, interpleader, to rehear Wainwright against Bobbitt, 121 N. O., 274. Petition refused.</p>

ActxoN by IT. Gr. Connor, executor of William Barnes, against Ed. Dillard, beard by Judge A. L. Coble, at May Term, 1901, of the Superior Court of Wilson County. Prom an order refusing to remove the case to another county, the defendant appealed.

ActioN by John Ricks against Carter Pope and W. Y. Taylor, beard by Judge T. A. McNeill, at Spring Term, 1901, of tbe Superior Court of Edgecombe County. At close of evidence for plaintiff, tbe defendants moved to dismiss tbe action, for that plaintiff was not entitled to recover upon bis evidence. Erom an order dismissing tbe action, tbe plaintiff appealed.

ActioN by Mary G. Pender and others against James Pender, heard by Judge T. A. McNeill, at April Term, 190U of the Superior Court of Edgecombe County. Erom a judgment. for the plaintiffs, the defendant appealed.

ActioN by W. E. Barden, to the use of Annie 0. Smith, wife of R. B. Smith, and her husband, R. B. Smith, against W. J. Pugh, administrator of J. E. Barden, heard by Judge Fred. Moore and a jury, at October Term, 1900, of the Superior Court of SaiipsoN County. From a judgment for Annie O. Smith, the defendant appealed.

ActioN by A. Mitchell against J. E. Baker and wife, heard by Judge O. H. Allen and a jury, at December (Special) Term, 1900, of the Superior Court of Lenoik County. From a judgment for the defendants, the plaintiff appealed.

ActioN by S. H. Lane against It. B. Raney, beard by Judge T. A. McNeill and a jury, at May Term, 1901,' of tbe Superior Court of Okaven County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by L. M. Satterthwaite and others against W. S. Ellis, heard by Judge A. L. Cohle and a jury, at Fall Term, 1900, of the Superior Court of Graven County. From a judgment for the plaintiffs, the defendant appealed.

<p>1. JUDGMENT — Decree—Nonsuit.</p> <p>A decree in. partition proceedings reciting that it was rendered on tbe merits, will not be construed to be a judgment of nonsuit because it orders that tbe petition be dismissed.</p> <p>2. ESTOPPEL — Former Adjudication — Erroneous Judgment — Evidence.</p> <p>A party to a subsequent proceeding, wbo introduces a will wbicb bad been erroneously construed in tbe former proceeding, for tbe purpose of showing that the matter at issue bad been adjudicated, does not thereby lessen tbe effect of tbe former proceedings as an estoppel.</p> <p>3. ESTOPPEL — Former Adjudication■ — Partition.</p> <p>All parties to a partition proceeding, it being equitable in its nature, are estopped by a decree therein.</p> <p>4. ESTOPPEL. — Ejectment—Pleading.</p> <p>Estoppel need not be pleaded in actions of ejectment.</p>

Actioh by J. W. Edwards, administrator of W. B. Edwards, against the Atlantic Coast Line Railroad Company, heard by Judge A. L. Ooble and a jury, at May Term, 1901, of the Superior Court of WilsoN County. From a judgment for the defendant, the plaintiff appealed.

<p>1. PARTIES —Creditors —Personal Representatives —Executors — Sale of Land to Malte Assets.</p> <p>Creditors will not be permitted to become parties plaintiff witb the personal representative in a proceeding to sell land to make assets</p> <p>2. JUDGMENT' — Irregular—Parties.</p> <p>Proceedings for sale of land to make assets, in which a creditor is erroneously allowed to make himself a party plaintiff, are not validated by the rendition of a consent judgment confirming the sale.</p> <p>3. JUDGMENTS' — Irregular■—Vacating—Motion in the Cause.</p> <p>An irregular judgment can be set aside by a motion in the cause if made within a reasonable time.</p>

<p>1. HOSPITALS AND ASYLUMS — Indigent Insane — Compensation— States — Contracts—Officers.</p> <p>The superintendent of a State hospital can not hind the State by agreeing not to charge an insane person able to pay ex- . penses.</p> <p>2. FORMER ADJUDICATION — Appeal.</p> <p>A question decided on a prior appeal is res judicata and will not be reviewed on a second appeal.</p> <p>3. LIMITATIONS OF ACTIONS — Hospitals and Asylums.</p> <p>The superintendent of the State hospital can not recover compensation against guardian of insane person for the maintenance of his ward for more than three years preceding the bringing of the action.</p> <p>4. LIMITATIONS OF ACTIONS — Insane Persons — Guardian and Ward — Pleading.</p> <p>Where an insane person is a party to an action, such insane person shall be deemed to have pleaded the statute of limitation.</p>

ActioN by W. G. Mizell against G. A. McGowan and others, heard by Judge W. A. Hohe and a jury, at May (Special) . Term, 1901, of the Superior Court of Pitt County. From a judgment for tbe defendants, tbe plaintiff appealed. .

<p>PistittoN to rebear. Modified. For former opinion see 128 N. 0., 301.</p>

ActioN by Jessie R. Strauss, executrix of W. H. Strauss, against the city of Wilmington, heai-d by Judge W. A. líale* and a jury, at January Term, 1901, of the Superior Court of New HaNOVeb. County. From a judgment for the plaintiff, the defendant annealed.

<p>Action by Elisha Porter against T. J. Armstrong, Sarah E. Durham and ,W. W. Miller, heard by Judge W. A. TIoice, at March Term, 1901, c.f the Superior Court of PeNpek, County. Prom a judgment of nonsuit, the plaintiff appealed.</p>

<p>ActioN by Edward Herring, as guardian of John H. and Annie L. Sutton, against Mary E. Sutton, executrix of B. F. Sutton, Jr., and others, heard by Judge O. II. Allen, at December (Special) Term, 1900, of the Superior Court of LeNOIR County. From a judgment for the plaintiff, the defendants appealed.</p>

ActioN by Wesley Burnett and wife against J. H. and J. W. Sledge, executors of Sherrod Sledge, heard by Judge A. L. Goble, at January Term, 1901, of FbaNkliN County Superior Court. From a judgment for the defendants, the plaintiffs appealed.

ActioN by W. P. Black and E. B. Atkinson against the Board of Commissioners of Buncombe County, heard by Judge Frederick Moore, at Chambers, in Asheville, on the 28tb day of December, 1901. Erom an order dissolving a temporary restraining order, tbe plaintiff appealed.

<p>JURISDICTION — Motion in the Cause — Action—Dower■—Practice.</p> <p>An ex parte proceeding by a widow to subject land in the hands of heirs to the payment of dower charges thereon can not be had before the Clerk, nor by a motion in the.cause wherein dower was allotted, the proper remedy being in original action on the claim.</p>

<p>AotxoN by T. E. Koch and others against L. C. Porter and' others, heard by Judge George H. Brown, at August Term, 1900, of tbe Superior Court of Columbus County. Erom an order setting aside a judgment for tbe plaintiffs, tbe plaintiffs appealed.</p>

AotioN by T. R. Holt, executor of N. Gr. Bums, against Barney Johnson and E. M. Johnson, his wife, heard by Judge H. B. Siarhuch, at April Term, 1901, of the Superior Court of WaKE County. Erom a judgment for the plaintiff, the defendants appealed.

ActioN by John D. Kerr and wife S. H. Kerr against R. W. Hicks, beard by Judge W. A. Ilohe, at Eebruary Term, 1901, of the Superior Court of SakpsoN County. Erom a judgment for the plaintiffs, the defendant appealed.

PeoceediNG by W. H. Harrington against P. E. Hatton, administratrix, and others, heard by Judge IT. A. Hohe and a jury, at August “(Special) Term, 1901, of the Superior Court of Pitt County. From a judgment for the defendants, the plaintiff appealed.

AotioN by P. E. Coolt, trustee of Andrew Brown, a bankrupt, against the American Exchange Bank and others, heard by Judge Thos. A. McNeill, at Ball Term, 1900, of the Superior Court of Dare County. On the 23d day of February, 1900, the plaintiff sued out a summons in the Superior Court of Dare County against the defendants, and delivered it to the Sheriff of that county, who returned it not served because the defendants could not be found in his county.

<p>1. VERDICT — Directing Verdict — Evidence—Conflicting.</p> <p>The court should not direct a verdict for the defendant where the evidence is conflicting.</p> <p>2. NEGLIGENCE — Contributory Negligence — Last Clear Chance— Railroads.</p> <p>Contributory negligence of the injured party will not defeat a. recovery if it is shown that the defendant could have avoided the accident by exercising reasonable care.</p>

<p>1. SPECIFIC PERFORMANCE — Vendor and Purchaser — Contract.</p> <p>A vendor of land can not require a purchaser to take a defective title, .though the vendor offers an indemnifying bond.</p> <p>2. PRESUMPTIONS — Presumption of Death.</p> <p>The absence of a person for more than seven years, without being heard from, raises a rebuttable presumption that the person is dead.</p> <p>3. REFERENCES — Findings of Court — Pleadings—Allegations in Pleadings — Admissions in Pleadings.</p> <p>While the supreme court will not review the findings of fact by a referee where there is evidence tending to prove them, they will not sustain them when in conflict with the allegations ana admissions in the pleadings.</p> <p>4. APPEAL — Review—Exceptions and Objections.</p> <p>Questions will not be considered on appeal which are not presented by motion or exception in the case on appeal.</p>

ActioN by Sallie Mitchell, administratrix of James Mitchell, against the Raleigh Electric Company, heard by Judge II. B. Starbuch and a jury, at April Term, 1901, of the Superior Court of Ware County. This action was brought to recover against defendant company damages on account of the alleged negligent killing of intestate.

Action by Frank Smith against the Wilmington and Weldon Railroad Company, heard by Judge W. A. Hoke and a jury, at February Term, 1901, of the Superior Court of Sampson County.

AotioN by Pena 0. Cbeek against the Supreme Lodge of the Kniglits of Honor, heard by Judge W. B. Council, at Spring Term, 1901, of the Superior Court of AlamaNCe County. From a judgment for the plaintiff, the defendant appealed.

<p>MUNICIPAL CORPORATIONS — Damnum- Absque injuria — Smallpox — Illegal Arrest■ — Acís 1893, Oh. Bill.</p> <p>A city is not liable to one arrested on tbe ground of having been exposed to smallpox, where the officers act without malice.</p> <p>Douglas, J., dissenting.</p>

AotxoN by A. F. Brooks against J. II. Sullivan and J. B. Gerringer, beard by Judge E. W. Timberlatfe and a jury, at January (Special) Term, 1901, of the Superior Court of Guilford County. From a judgment for the defendants, the plaintiff appealed.

<p>1. ATTACHMENT — Vacation—Parol Contract.</p> <p>It is proper for a trial judge to vacate an attachment pending trial of the action where it plainly appears from the pleadings that the action of plaintiff must fail.</p> <p>2. ATTACHMENT — Bond.</p> <p>Defendant in attachment need not give bond where it appears on the face of the warrant tnat the attachment was issued for an insufficient cause.</p> <p>3. ATTACHMENT — Contracts—Betterments.</p> <p>On motion to vacate an attachment the court need not pass on matters irrelevant to the attachment.</p>

ActioN by J. R. Raynor against the Wilmington Seacoast Railroad Company, heard by Judge Frederick Moore and a jury, at April Term, 1901, of the Superior Court of Oum-beelaND County. From a judgment for the plaintiff, the defendant appealed.

ActioN by Evander McDougald against tbe Town of Lum-be'rton, beard by Judge Frederick Moore and a jury, at February Term, 1901, of tbe Superior Court of Robeson County. From a judgment for tbe defendant, tbe plaintiff appealed.

<p>NEGLIGENCE — Master and Servant — Defective Appliances — Ordinary Care — Reasonable Oare.</p> <p>Slight defects in appliances causing injuries which can not he reasonably anticipated, do not render the owner of the machinery liable.</p>

<p>1. CARRIERS — Freight—Refusal to Receive Freight — Penalties— The Code, See. 196J/.</p> <p>Under The Code, Sec. 1964, a railroad company refusing to transport cattle is liable to a separate penalty for each animal.</p> <p>2. EVIDENCE — Competency—Carriers.</p> <p>In an action to recover of a railroad company a penalty for refusing to transport cattle, a letter written by an agent of the company to a superior officer relative to the tender of the cattle is inadmissible on part of defendant.</p>

ActiON by T. H. Vanderford and others against J. Q. and I). F. Foreman, trading as Foreman Bros., heard by Judge 'Geo. IT. Broten and a jury, at May Term, 1903, of the Superior Court of RowaN County. From a judgment for tbe plaintiffs, tbe defendants appealed.

ActioN by W. R. Clement and others against H. B. Ireland and others, heard by Judge E. W. Timberlake, at Chambers, in Winston, on . . day of December, 1900. Erom an order setting aside a decree confirming a foreclosure sale, the defendants appealed.

ApplicatioN of Hal M. Worth and others for the probate of the will of J. M. Worth, deceased, heard by Judge H. 11. Bryan and a jury, at December Term, 1900, of the Superior Court of Randolph County. From an order probating will, the caveators, R. W. Bingham and others, appealed.

ActioN by W. L. Parrish and wife against P. C. Graham, receiver of the Golden Belt Hosiery Company, J. S. Carr and J. W. Smith, and the Citizens Bank of New Bern, heard by Judge W. B. Council and a jury, at March Term, 1901, of the Superior Court of Dubham County. From a judgment for the plaintiffs, the defendant J. W. Smith appealed.

AotioN by J. S. Carr against J. W. Smith, heard by Judge W. B. Council and a jury, at March Term, 1901, of the S'u-perior Court of JDueham County. Erom a judgment for the' plaintiff, the defendant appealed.

ActiON by Carrie Jeffries, by her next friend, Leonora Jeffries, against the Seaboard Air Line Railroad Company, heard by Judge A. L. Coble and a jury, at April Term, 1901, •of the Superior Court of Ebanelin County. Erom a judgment for the plaintiff, the defendant appealed.

<p>ActioN by Martin Jerman, against J. W. Gulledge, beard by Judge Frederick Moore, at April Term, 1901, of tbe Superior Court of Anson County. From a judgment for tbe plaintiff, tbe defendant appealed.</p>

<p>PetitioN to rehear.</p>

<p>STATUTES —Retroactive —Partnership —Surviving Partner —Acts 1901, Ch. 640.</p> <p>Acts 1901, Ch. 640, regulating settlements of partnerships by-surviving partners, does not apply to actions then pending and is not retroactive.</p>

<p>ActioN by A. S. Clinard, administrator of W. A. Olinard, against J. Gr. White & Oo., heard by Judge H. B. Starbuch, at May Term, 1901, of the Superior Court of Eoesyth County. Erom a refusal to dismiss the action, the defendant appealed.</p>

ActioN by O. A. Myers against the Concord Lumber Company, heard by Judge Geo. E. Bro vn, Jr., and a jury, at January Term 1901, of the Superior Court of Cabarrus County. Erom a judgment for the plaintiff, the defendant appealed.

AotioN by tbe Eirst National Bank of Salisbury against D. A. Swink, and J. A. Thomason, administratrix of George T. Thomason, heard by Judge Geo. H. Brown, at May Term, 1901, of the Superior Court of Rowan County. Erom a judgment for the plaintiff, the defendants appealed.

<p>ActioN by Alice J. Parlier against the Southern Railroad Company, heard by Judge O. H. Allen and a jury, at June (Special) Term, 1901, of the Superior Court of Ca■ra-r.-r.us County. Erom a judgment for the plaintiff, the defendant appealed.</p>

ActioN by tbe City of Raleigh against tbe North Carolina Railroad Company, heard by Judge H. B. Btarbuch, at April Term, 1901, of tbe Superior Court of Waee County. From ■a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Jobu B. Smith against John Richards and others, heard by Judge O. H. Allen, at Spring Term, 1900, of the Superior Court of GastoN County. Erom a judgment for the defendants, the plaintiff appealed.

ActioN by Lillie TJry, by her next friend J. V. Eisher, against E. A. Brown, heard by Judge O. H. Allen and a jury, at June (Special) Term, 1901, of the Superior Court of Cabarrus County. Erom a judgment for the plaintiff, the defendant appealed.

AotioN by George II.' Brown and others against R. 0. Plott, beard by Judge A. L. Coble and a jury, at August Term, 1901, of the Superior Court of Iredell County. From a judgment for the defendant, the plaintiffs appealed.

<p>1. STATUTES — Ratification—Evidence—Presumptions.</p> <p>The certificate of the presiding officers of the general assembly is conclusive evidence that a bill was read and passed three several readings in each House.</p> <p>2. STATUTES — Legislative Journals — Teas and ■ Nays — Presumptions — The Constitution, Art. II, Sec. H.</p> <p>Where certified extracts from the legislative journal offered in evidence give only the number of yeas and nays, without showing that the names of the members voting were recorded, it will not be presumed that they were recorded.</p> <p>3. STATUTES — Enactment—Taxation—The Constitution, Art. II, Sec. H — Yeas and Nays — Journals.</p> <p>An act to levy a tax by a county, not for necessary expenses, must be read three several times and passed on three different days, and the names of those voting on the second and third readings entered on the journal.</p>

<p>ActioN by Erank Loughran against the City of Hickory and the Mayor and the Aldermen, heard by Judge W. B. Council, at Chambers, at Newton, on the 8th day of July, 1901. Erom a judgment for the plaintiff, the defendants appealed.</p>

ActioN by Sarah Cawfield against Amos Owens and May Owens, heard by Judge M. H. Justice and a jury, at September.. Term, 1901, of the Superior Court of Ruthekfoed County. Erom a judgment for the plaintiff, the defendant Mary Owens appealed.

ActioN by Dobson & Wbitley and others against the Southern Railway Company, heard by Judge M. H. Justice and a jury, at August Term, 1901, of the Superior Court of McDowell County. From a judgment for the plaintiffs, the defendant appealed.

<p>ActioN by George E. Seaman and others against Nettie Seaman and others, heard by Judge W. B. Council, at Chambers, at Boone, N. 0., on the 2'7th day of December, 1900. From a judgment'for the plaintiffs, the defendants appealed.</p>

<p>ActxoN by H. T. Setzer against Laura A. Setzer, beard by Judge W. B. Council, at July Term, 1901, of tbe Superior Court of Catawba County. Erom a judgment for tbe plaintiff, tbe defendant appealed.</p>

AotioN by M. J. McCall against the Southern Eailway Company, heard by Judge ~W. A. Hoke and a jury, at July Term, 1901, of the Superior Court of Meckdenbubg County. From a judgment for the plaintiff, the defendant appealed.

<p>1. EVIDENCE — Railroads—Negligence—'Wallcway.</p> <p>Evidence that people walk along a railroad track at 11 o’clock at night is competent on the question of negligence of a person killed while on the track.</p> <p>2. CONTRIBUTORY NEGLIGENCE — Negligence — Instructions — Form of — Burden of Proof.</p> <p>An instruction that the intestate was negligent in being on a railroad track and not getting off, unless it is found that he was in a helpless condition, is correct, and the burden of showing such helplessness by a preponderance of evidence is on the person alleging it.</p> <p>3. NONSUIT — Evidence—Sufficiency—Negligence—Personal Injuries.</p> <p>There is sufficient evidence in this case as to negligent killing of intestate by railroad to be submitted to the jury.</p> <p>Cook, J., dissenting.</p>

<p>DEDICATION — What Constitutes — Plat.</p> <p>"Where a land company sells lots by a plat and in a deed calls for a “hotel site,” it is not such a dedication that the “hotel site” may not he used for other than hotel purposes.</p>

ActioN- by R. McMillan against Sallie Hogan, and others, heard by Judge Frederick Moore and a jury, at May Term, 1901, of the Superior Court of CumbeelaND County. Erom a judgment for the plaintiff, the defendants appealed.

<p>1. EVIDENCE — Privileged Communications — Physicians—Patient— Acts 1885, Ch. 159 — Insurance—Practice.</p> <p>A person-in his application for insurance may waive the right to object to the evidence of a physician acquired while attending him and the physician may be compelled to testify.</p> <p>2. EXAMINATION OF WITNESSES — Evidence—Trial—Practice.</p> <p>The practice of admitting evidence to be made competdht by subsequent evidence is disapproved.</p>

AotioN by Louise N. Bond against J. W. Wilson and J. W. ■ Wilson, Jr., heard by Judge E. W. Timberlake and a jury, at Spring Term, 1901, of the Superior Court of Buree County. From a judgment for the plaintiff, the defendants appealed.

ActioN b,y J. A. Perry, administrator, against the Western North Carolina Eailroad Company, heard by Judge M. il. Justice and a jury, at August Term, 1901, of the Superior Court of BueKb County. T. A. Simpson, a juror, was challenged by plaintiff because he was related to E. E. Simpson, conductor of the train which killed plaintiffs intestate, E. E. Simpson being a witness for the defendant. The Court, in its discretion, excused the juror, to which defendant excepted.

<p>ActtoN by J. H. Allison against tbe Southern Eailway Company, beard by Judge '$£. H. Justice and a jury, at October Term, 1901, of tbe Superior Court of MoDowell County. From a judgment for tbe plaintiff, tbe defendant appealed.</p>

■ ActioN by Lizzie C. Neal against tbe Town of Marion, beard by Judge M. H. Justice and a jury, at August Term, 1901, of tbe Superior Court of McDowell County. From a judgment for tbe plaintiff, tbe defendant appealed.

<p>REMOVAL OP CAUSES — Acis 1899, Ch. 62 — Domestication—Foreign Corporations.</p> <p>Where an action for more than $2,000 is brought against a foreign corporation for personal injuries received before it domesticated under Acts 1899, Ch. 62, a petition to remove to the federal courts was properly allowed.</p>

ActioN by C. D. Harden against the North Carolina Railroad Company, beard by Judg'e George U. Broivn and a jury, at May Term, 1901, of tbe Superior Court of RowaN County. From a judgment for tbe plaintiff, tbe defendant appealed.

<p>ActioN by J. E. Smith against the. Southern Railway Company, beard by Judge W. B. Council, at May Term, 1901, of tbe Superior Court of Alamance County. Erom judgment for tbe defendant, tbe plaintiff appealed.</p>

ActioN by J. E. McArver, administrator, against tbe Southern Eailway Company, heard by Judge H. B. Starbuch and a jury, at May (Special) Term, 1900, of the Superior Court of GastoN County. From a judgment for the plaintiff, the defendant appealed.

ActioN by Lou. N. Bond, Eebecca B. Adams and others against J. W. Wilson, beard by Judge W. B. Council and a jury, at Ball Term, 1900, of tbe Superior Court of Bueee County. From a judgment for tbe plaintiffs, tbe defendant appealed.

ActioN by W. A. Thomas against the Raleigh.and Augusta Air-Line Railway Company, heard by Judge II. R. Starbuck and a jury, at February Term, 1901, of the Superior Court of Waicg County. This is an action for damages on account of personal injuries received by the plaintiff while in the service of the defendant company. There is evidence tending to prove the following facts, many of which are uncontradicted.

ActioN by Cbas. D. Cogdell against tbe Southern Railway Company,, beard by Judge Frederick Moore and a jury, at May Term, 1901, of tbe Superior Court of Cumbeeland County. Tbis is an action for damages for personal injuries to tbe plaintiff, caused by tbe alleged negligence of tbe defendant. Tbe material allegations of tbe complaint are as follow's: “2.

<p>1. FRAUDS, STATUTE OF — Contract—Brolcers.</p> <p>The statute of frauds does not apply to contracts by brokers and . tbeir principal for the sale of real estate.</p> <p>2. BROKERS — Principal—Contracts.</p> <p>Where no time is fixed for the continuance of a contract between a broker and his principal, either party may terminate it at will, subject only to the ordinary requirements of good faith.</p>

<p>1. NEGLIGENCE — Assumption of RisJc — Master and Servant — Railroads — Acts (Private) 1897, Ch. 56.</p> <p>The use of machinery obviously defective will not prevent a person from a recovery for an injury resulting therefrom, unless the apparent danger is so great that its assumption would amount to a reckless indifference of probable consequences.</p> <p>2. CONTRIBUTORY NEGLIGENCE — Questions for Jury — Questions for Court.</p> <p>Whether an engineer is guilty of contributory negligence in . . using drain-pipe as a grab-iron, in trying to get upon an engine, is a question for the jury.</p> <p>3. NONSUIT — Dismissal —Evidence —Construction —Negligence ■— Verdict — Directing.</p> <p>On a motion for a nonsuit, or its counterpart, the direction of a verdict, the evidence for the plaintiff must be accepted as true and construed in the light most favorable to him.</p>

<p>ActioN by C. C. Young and others against the Town of ' Hendersonville, heard by Judge M. H. Justice, at Chambers,at Columbus, July 3, 1901. Erom an order refusing an injunction, the plaintiffs appealed.</p>

AotioN by George A. Lovick against tbe Atlantic Coast Line Railroad Company, beard by Judge Fred. Moore and a jury, at May Term, 1901, of tbe Superior Court of Cum;-BERLAND County. • Tbis action was brought to recover damages against defendant company'on account of tbe alleged illegal arrest and imprisonment of plaintiff caused by defendant company through its manager, agents and attorneys..

<p>CONTRACTS — Sale—Machinery—Warranty—Issue.</p> <p>Where a party bought machinery and used it for a long time and when sued for the purchase-price, sets up a breach of ' warranty, the only issue to submit is one as to the value of the machinery when delivered.</p>

<p>1. WILLS — Construction.</p> <p>Where a testator in .one clause of bis mil “leaves” land to Ms widow, in another “loans” personal property to her, and in a later clause gives all the property “loaned” to the widow to his daughters, this latter clause will be construed to cover the land and the personal property.</p> <p>2. WILLS — Construction.</p> <p>Where property is left to daughters after death of widow of intestate and the widow dies before the daughters, the children and grandchildren of the only daughter leaving heirs are entitled to, the whole property, under the following clause of the will: “Should either of my daughters die intestate, leaving no issue, my will is that the others inherit ' to the exclusion of my sons.”</p>

ActioN by Geo. T. Wilson, administrator of W. T. Wilson, against J. E. Kanlrin, receiver of tbe Asheville Street Kail-road Company, beard by Judge Frederick Moore and a jury, at September Term, 1901, of tbe Superior Court of BuNcombe County. From a judgment for tbe defendant, the plaintiff appealed.

AotxoN by Alpine Cotton Mills against Weil Brothers and tbe Bank of Opelika, intervenor, beard by Judge E. W. Tim-berlahe and a jury, at May Term, 1901, of tbe Superior Court of Bubeb County. Erom tbe judgment, tbe plaintiff and intervenor bank appealed.

IN tbe matter of entry of lands by E. S. Drewry, beard by Judge B. W. Timberlahe, at Spring Term, 1901, of tbe Superior Court of Bubee County. Erom a judgment for Drewry, caveators, J. M. Barnbardt and others, appealed.

ActioN by John S. Lea, administrator of. Sidney Lea, against the Durham and Northern Railway Company and the Seaboard Air Line, heard by Judge T. J. Shaw and a jury, at August Term, 1901, of the Superior Court of Pee-SON County. From a judgment for the plaintiff, the defendants appealed.

Plaintiff's Appeal. ActioN by Mary Benedict and others against H. C. J ones and wife and S. G. Atkin, heard by Judge Frederick Moore and a jury, át September Term, 1901, of the Superior Court of Buncombe County. Erom a judgment for the defendants, the plaintiffs appealed. *

Action by Mary E. Benedict and others against H. C. Jones and wife and S. G. Atkin, beard by Judge Frederick Moore and a jury, at September Term, 1901, of tbe Superior Court of BuncoMbe County. Erom a judgment for tbe plaintiffs, tbe defendants appealed.

ActioN by M. J. Bearden and others against J. S. Bnllam, Chief of Police for the City of Asheville, heard by -Judge Frederick Moore, at Chambers, at Asheville, on 23d November, 1901. From a judgment for the defendant, the plaintiffs appealed.

Tbis was a proceeding to punish as for contempt. Tbe acts were alleged to have been committed by the respondents during the trial of the civil action of B. F. Long, administrator, against the North Carolina Bailroad and others,’in Iredell Superior Court, at its May Term, 1901, .and upon the answers of the respondents and the affidavits filed in the matter, his Honor, Judge George IT. Brown, found the following facts: “1.

• INDICTMENT against Amos Moore and others, heard by Judge A. L. Cobh and á jury, at April Term, 1901, of the Superior Court of Pitt County.

INdiotmtsNT against Drew Vaughn, heard by Judge O. H. ■ Allen and a jury, at Spring Term, 1901, of the Superior Court of HERTFORD County. The evidence on which Hie State relied, and material to be stated, is as follows: J. L. Dosier testified: On the 26th of January last I was engineer of the Steamer Keystone. I knew John. Barton, who is now dead. He was fireman on. the Keystone. Whitfield was mate on the 26th January.

Ihuictmekt against Primus Jones, heard by Judge H. B. Biarbuclc and a jury, at April Term, 1901, of the Superior Court of Wayre County. Erom a verdict'of guilty and judgment thereon, the defendant appealed.

<p>ON petition to rehear. Petition dismissed.</p>

INDICTMENT against C. Anderson, heard by Judge A. L. Goble and a jury, at July Term,' 1901, of the Superior Court of RaNdolph County. Erom a verdict of not guilty on a special verdict, tbe State appealed.

<p>.1. EVIDENCE — Opinion Evidence — Competency.</p> <p>Whether there was light enough for the prisoner to see the deceased at time of killing is not an expression of opinion.</p> <p>2. EVIDENCE — Bes Gestae — Competency.</p> <p>Evidence as to what prisoner on trial for murder said to a party, after the shooting is not competent unless a part of . the res gestae.</p> <p>3. CONFESSIONS — Admissibility.</p> <p>Where a prisoner denies knowing anything about the killing, such statements are not inadmissible as confessions.</p> <p>i. INSTRUCTIONS — Charge-—Judge.</p> <p>, Where the trial judge in his general charge gives “every reasonable contention of the State,” it is erroneous to- give an entirely new charge, containing “a powerful summing up” for the state'.</p> <p>5. EVIDENCE — Weight—Expression of Opinion "by Judge — The Code, Bee. J¡18.</p> <p>The instructions in this case are erroneous as expressing an opinion on the evidence.</p> <p>.6. INSTRUCTIONS — Charge—•Misstatement of Evidence by the Court.</p> <p>An incorrect and unfair statement of evidence against prisoner by the trial judge is erroneous.</p> <p>7. WITNESSES — Evidence—Near Relations — Instructions.</p> <p>It is error to instruct the jury that because of relationship the jury should carefully scrutinize the testimony, loithout adding that, if the jury believed the testimony it should have the same weight as if the witness was not interested.</p>

INDICTMENT against I. E. Austin, beard by Judge A. L. Goble and a jury, at September Term, 1901, of tbe Superior Court of Rowan County. Erom a verdict of guilty and judgment tbereon, tbe defendant appealed.

INDICTMENT against Walter Garner, beard by Judge W. A. Hohe and a jury, at September Term, 1901, of tbe Superior Court of Gaston County. Defendant was tried upon a bill of indictment for an .assault with intent to commit rape upon Beulah White. A concise statement of the evidence shows that Beulah White, a white girl about 14 years old, was walking along the railroad track near Gastonia, accompanied by her little brother, about 8 years old.

■INDICTMENT against Jacob Yoder, beard by Judge W. B. Council and a jury, at October Term, 1901, of the Superior Court of Catawba County. This case was tried in the Court below on appeal from the judgment of a Justice of the Peace.

INDICTMENT against Joe Smith, beard by Judge M. H. Justice and a jury, at October Term, 1901, of tbe Superior Court of BueKE County. There was a verdict of guilty and judgment thereon. Erom refusal of tbe Court to discharge tbe defendant upon tbe ground that tbe Solicitor bad no right to order a capias to issue, tbe defendant appealed.

INDICTMENT against Arthur Hefner, heard by Judge W. B. Council and a jury, at October Term, 1901, of the Superior Court of Catawba County.

<p>INDICTMENT against Lawson Harwell, beard by Jndge W, B. Council, at October Term, 1901, of tbe Superior Court of Catawba County. Erom a judgment of quashal, tbe State Solicitor appealed.</p>

INDICTMENT for forgery against L. R. Peterson, heard by Judge W. B. Council and a jury, at July Term, 1901, of the Superior Court of Catawba County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against Andrew Jackson for burglary, heard 'by Judge W. A. Holce and a jury, at September Term, 1901, of the Superior Court of Lincoln County. From a verdict •of guilty of burglary in the first degree and judgment 'thereon, the prisoner appealed.

INDICTMENT against C. W. Carter and J. E. Jones, beard by Judge O. U. Allen and a jury, at Spring Term, 1901, of tbe Superior Court of Heéteoed County. Erom a verdict of guilty and judgment tbereon, tbe defendants appealed.

INDICTMENT against Arthur Spaugh and J. D. Beckel, heard by Judge H. B. Sta/rbuck and a jury, at May Term, 1901, of the Superior Court of Eoesyth County. These defendants were separately indicted under sections 51 and 11 of Chapter 11, of the Public Laws of 1899. The cases were consolidated by consent, upon motion of the Solicitor.

<p>1. STATUTES — Repeal by. Implication — Road Overseer — Highways— Acts 1899, Oh. 58.1 — Acts 1901, Ch. 501.</p> <p>A township being a unit of a county, a general law for tbe county repeals a local law existing in one or more townships, where it provides a different rule about the same subject-matter.</p> <p>2. JURISDICTION — Superior Court — Justices of the Peace — The Constitution, Art. IV, Sec. 27 — Acts 1901, Oh. 501.</p> <p>Whevé' a statute prescribes a penalty of not less than ten nor more than fifty dollars, and no imprisonment is imposed, a justice of the peace has exclusive original jurisdiction.</p>

INDICTMENT against John H. Nose, beard by Judge E. W. Timberlahe and a jury, at September Term, 1901, of the Superior Court of Wilson County. From a verdict of guilty and judgment thereon, the defendant appealed.

<p>INDICTMENT against J. L. Welch, beard by Judge George A. Jones and a jury, at August Term, 1901, of tbe Superior Court of Macon County. From a verdict of guilty and judgment tbereon, tbe defendant appealed.</p>

INDICTMENT against Dixie Williams and Bettie Caddell, beard by Judge A. L. Coble and a jury, at September Term, 1901, of tbe Superior Court of Montgomeey County. From a verdict of guilty as to Dixie Williams and judgment thereon, be appealed.

INDICTMENT against J. L. Howard alias Frank Thompson, A. L. Daley alias Gonez Bono, and H. D. Hawley, heard by Judge W. B. Council and a jury, at June Term, 1901, of the Superior Court of Guilford C'onnty.

■ INDICTMENT against Hezekiah Caldwell, heard by Judge Fredericlc Moore and a jury, at July (Special) Term, 1901, of the Superior Court of MadisoN County. From a verdict of guilty of murder in the second degree and judgment thereon, the prisoner appealed.

Indictment against Cbas. Hunt, beard, by Judge 11. li. Starbuclc and a jury, at July Term, 1901, of tbe Superior Court of Fobsytii County. From a judgment of guilty on a special verdict, tbe defendant appealed.

<p>LANDLORD AND TENANT — Removal of Crops by Tenant — The Code, Sec. 1759 — Evidence.</p> <p>Where a tenant is indicted for removal of a crop, be may show that on account of the breach of the contract of rental by the landlord he was due the landlord nothing at the time of the removal.</p> <p>Clakk and Cook, J.J., dissenting.</p>

INDICTMENT against Joseph E. Jarvis, beard by Judge Frederick Moore, and a jury, at June (Special) Term, 1901, of the Superior Court of BuNCOMbe County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMUNT against Ben Foster, R. S. Gates, Harry Mills and Franls Johnston, beard by Judge Frederick Moore and a jury, at June (Special) Term, 1901,. of tire Superior Cburt of BüNCOMbj? County. From a verdict of guilty and judgment thereon, the defendants appealed.