Volume 130 — North Carolina Reports

ActioN by Samuel A. Cutler against C. J. Cutler and others, heard by Judge 0. N. Allen and a jury, at February Term, 1901, of the Superior Court of Bdaupobt County. From a judgment for the defendants, the plaintiff appealed.

<p>ESTATES — Conditions—Deeds—Wills—The Code, Secs. %Ufi,</p> <p>Where a church receives an absolute fee in land, subject to be defeated only by the breach of a condition, and this condition is not broken until after the death of the grantor and a daughter, neither the grantor nor the daughter have any estate in the land at the time of their death, which can be willed or inherited, and upon breach of the condition the estate goes to the heirs-at-law of the grantor.</p>

* ActtoN by P. B. Butler and his wife against the South Carolina and Georgia Extension Eailroad Company, heard by Judge M. El. Justice and a jury, at September Term, 1901, of the Superior Court of ButitebeORd County. The defendant offered as a witness the conductor of the train (one McGuire), who testified be was not in tbe car when plaintiff was hurt, but went in the car afterwards, and learned then, for the first time, that she was hurt.

Action by S. W. Lehew against Frank B. Hewett and others, heard by Judge George II. Brown and a jury, at October Term, 1900, of the Superior Court of BnuNswiOK County. From a judgment for the defendants, the plaintiff appealed.

ActioN by E. L. Pippen, administrator of the estate of J. H. Pippen, against the Mutual Benefit Life Insurance Company, heard by Judge Thos. A. McNeill, upon an agreed statement of facts, at June Term, 1901, of the Superior Court of Halifax County. Erom a judgment for the defendant, the plaintiff appealed.

<p>ActioN by Julia E. Martin against D. J. Martin, heard hy Judge Thos. A. McNeill and a jury, at April Term, 1901, of the Superior Court of Northampton County. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by A. A. Fain, administrator, against the Southern Railway Company. Motion of appellant to reinstate its appeal, the same having been dismissed under Rule 17, is denied.

AgtioN by W. H. Winborne and. others against the Elizabeth City Lumber Company, heard by Judge Geo. H. Brown and a jury, at September Term, 1901, of the Superior Court of CiiowaN County. Erom the following judgment, the plaintiffs appealed: “This cause coming on to be heard, all parties being before the Court, and the issues having been answered as appears in record, it is adjudged, ordered and decreed that plaintiffs W. PI.

ActioN by W. B. Ausley against the American Tobacco Company, beard by Judge IF. B. Council and a jury, at March Term, 1901, of the Superior Court of Dubiiam County. From a judgment for the defendant, the plaintiff took a nonsuit and appealed.

AotioN by C. W. Spruill, as administrator of the estate of T. IT. Wilson, and Alice Wilson, against the Branning Manufacturing Company, heard by Judge O. PI. Allen and a jury, at November Term, 1901, of the Superior Court of Bbetie County. From a judgment for Alice Wilson, the defendant appealed.

ActioN by N. B. Finch against A. S. Strickland and others, heard by Judge E. W. Timberlalce, at November Term, 1901, of the Superior Court of Nasi-i County. From a judgment for the latter, the former appealed.

Aotiow by Ellen Brinkley against N. W. Spruill and others, heard by Judge Walter TI. Neal and a jury, at October Term, 1901, of the Superior Court of Washington County. Plaintiff’s husband agreed to deed certain land to plaintiff if she would marry him, and after her promise to do so, but before marriage, conveyed the land, without consideration, to his children by a former wife; such conveyance being recorded before the marriage.

ActioN by John and Margaret Gray against Beulah Williams and others, heard by Judge George H. Brown and a jury, at September Term, 1901, of the Superior Court of CamdeN County. From a verdict for the plaintiffs, the defendants appealed.

ActioN by Jordan Winslow, administrator, against Cbas. E. Benton and others, heard by Judge George II. Brown, at September Term, 1901, of the Superior Court of Perqut-MANS County. Prom a judgment for the defendants, the plaintiff appealed.

<p>WARRANTY — Covenants—Vendor and Purchaser.</p> <p>A complaint stating that defendant sold plaintiff certain standing timber, and that title of defendant was defective, with no allegation of covenant or fraud, does not state a cause of action, as there is no implied warranty in the sale of realty.</p>

<p>ActioN by Maggie S. Barden against J. B. Stickney, heard by Judge Walter E. Neal, at October Term, 1901, of the Superior Court of WASHINGTON County. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by D. H. Armstrong against the Wilmington and Weldon Railroad Company, beard by Judge Fred. Moore and a jury, at December (Special) Term, of tbe Superior Court of PeNKER County. From a judgment for tbe plaintiff, both plaintiff and defendant appealed.

<p>1. FRAUDS, STATUTE OF — Contract—Brokers.</p> <p>The statute of frauds does not apply to contracts by brokers and their principals for the sale of real estate.</p> <p>2. BROKERS — Commission Merchants — Principal and Agent.</p> <p>The rule that an agent can not in the same transaction represent both buyer and seller does not apply where it appears that the agent informed the buyer and seller that he was acting for both of them.</p>

<p>1. APPEAL- — Case on Appeal.</p> <p>A statement in a case on appeal that the defendant admitted claiming a note hy virtue of an endorsement does not preclude defendant from urging in the supreme court that his possession of the note was prima facie evidence of his ownership thereof.</p> <p>2. NEGOTIABLE INSTRUMENTS — Possession—Presumptions.</p> <p>The possession of a note hy an endorsee of a married woman is prima facie evidence of ownership, the note having been in possession of the husband after the endorsement.</p>

AotioN by Neva Skittletharpe against J. II. Skittletharpe, heard by Judge Walter H. Neal and a jury, at October Term, 1901, o-f the Superior Court of Washington County. This is a special proceeding instituted by fame, plaintiff against her husband, the defendant, to recover a reasonable subsistence for herself and the child of their marriage, pursuant to section 1292 of The Code.

<p>MUNICIPAL CORPORATIONS — Towns and Cities — Fire Department — Negligence.</p> <p>An employe of the fire department of a city can not recover for injuries sustained by him while in its service.</p> <p>Douglas, X, dissenting.</p>

<p>APPEAL — Waiver—Payment of Judgment — The Code, Sec. 886— Justice of the Peace.</p> <p>A defendant by voluntarily paying a judgment taken against liim before a justice of the peace waives his right of appeal.</p> <p>Douglas, J., dissenting.</p>

<p>ActioN by Thos. D. Holley against William Smith, heard by Judge O. H. Allen and a jury, at November Term, 1901, of the Superior Court of Bebtie County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>TOWNS AND CITIES — Demand—Jurisdiction—The Code, See. 757.</p> <p>Under The Code, Sec. 757, a complaint against, a town must allege a demand on the proper municipal officers.</p>

ActioN by W. H. Harrington against P. E. Hatton, as administrator, and others, beard by Judge ~W. A. Hohe, at May (Special) Term, 1901, of tbe Superior Court of Pitt County. Erom a judgment for tbe plaintiff, tbe defendants appealed.

AotioN by W. A. Hardee and others against L. H. Weath-ington-and others, beard by Judge Francis D. Winston and a jury, at December (Special) Term, 1901, of tbe Superior Court of Pitt County. Erom a judgment for tbe defendants, tbe plaintiffs appealed.

ActioN by E. C. Williams against tbe town of Greenville, beard by Judge F. D. Winston and a jury, at October Term, 1901, of tbe Superior Court of Pitt County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Christian. Smith against H. C. Ingram and others, heard by Judge A. L. Goble, at September Term, 1901, of the Superior Court-of MoNtgomeey County. Erom a judgment for the plaintiff, the defendants appealed.

ActiON by Williams & Garrett against the Southern Rail-, way Company, heard by Judge 0. II. Allen and a jury, at Spring Term, 1901, of the Superior Court of Hebteobd County. Erom a judgment for the plaintiffs, the defendant appealed.

<p>1. FIDELITY AND GUARANTY INSURANCE — Contracts—Bonds.</p> <p>Where a new contract made by an employer with an employee increases the responsibilities of the employee, such new contract discharges a fidelity and guaranty company from liability on its bond.</p> <p>2. FIDELITY AND -GUARANTY INSURANCE — Evidence—Instructions — Waiver.</p> <p>It is error to instruct that a party waives any difference of its liability under two contracts when there is no evidence' that the party knew of the existence of the contracts.</p> <p>Douglas, J., dissenting.</p>

ActioN by K. and. W. B. Sallenger, administrators of B. Sallenger and others, against J. W. Perry and others, heard bv Judge O. H. Allen and a jury, at November Term, 1901, of the Superior Court of Beetie County.

<p>Actio-N by Della D. Thompson, administratrix, against the Southern Railway Company, heard by Judge O. H. Allen, at September Term, 1901, of the Superior Court of PeNDEB County. Erom an order refusing to remove the cause to the Circuit Court of the United States, the defendant appealed.</p>

ActioN by R. L. Tucker against J. B. Winders, beard by Judge W. A. Moke and a jury, at March Term, 1901, of the Superior Court of Duplin County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by Thomas & Mercer against L. M. Cooksey, heard by Judge O. II. Allen, at October Term, 1901, of the Superior Court of New HaNovee County. From a judgment for the defendant, the plaintiff appealed.</p>

ActioN by the Davis Sulphur Ore Company against E. J. Powers and others, heard by Judge O. II. Allen and a jury, at October Term, 1901, of the Superior Court of New HaNOVER County.. From a judgment for the defendants, the plaintiff appealed.

ActioN by Warren. Harcum against S. E. Harsh and others, heard by Judge F. D. Winston and a jury, at Eall Term, 1901, of the Superior Court of HeRtfobu Comity. From a judgment for the plaintiff, the defendants appealed.

<p>1. EVIDENCE — Admissions'—Competency.</p> <p>As to whether a person owned personal property claimed by him, it is competent to show that he remained silent when the property was claimed by another in his presence.</p> <p>2. EVIDENCE — Admissions—Deceased Witness — Former Trial— Case on Appeal.</p> <p>The testimony of a deceased witness contained in a case on appeal, signed by counsel for Doth parties, is competent evidence in a subsequent trial of the' same case, against a party thereto.</p>

Acttok by T. E. Owens and others against Edward Williams and others, beard by Judge O. II. Allen and a jury, at September Term, 1901, of the Superior Court oí SampsoN County. From a judgment for the plaintiffs, the defendants appealed.

Action by O. P. Shell, executor of Ií. 0. Avera, against W. 0. West, beard by Judge W. 8. O’B. Robinson and a jury, at November Term, 1900, of tbe Superior Court of Harnett County. From a judgment for tbe defendant, tbe plaintiff appealed.

ActioN by Junius Davis, as receiver of the Bank of New TIanover, against the Butters Lumber Company, heard by Judge 0. Trl. Allen, at October Term, 1901, of the Superior Court of New HaNovek County. From a judgment for the plaintiff, the defendant appealed.

ActioN by B. W. Herring against W. H. Armwood, heard by Judge O. H. Allen and a jury, at December Term, 1901, of the Superior Court of DupliN County. From a judgment for the plaintiff, the defendant appealed. This is an action to recover under claim and delivery proceedings the possession of two- bales of cotton, alleged by plaintiff to be his property, and to be worth $81, wrongfully withheld by defendant.

ActioN by P. E. Cook, trustee of Andrew Brown, bankrupt, against the American Exchange Bank and others, heard by Judge Geo\ II. Brown, at November Term, 1901, of the Superior Court of Dake County. Erom an order allowing defendants to file an answer and refusal of judgment for the plaintiff, the plaintiff appealed.

ActioN by Henry Springs against tbe Southern Railway Company, heard by Judge W. 8. O’B. Robinson and a jury, at March Term, 1901, of tbe Superior Court of MeckleN-bueg County. This is au action for personal injury. Tbe plaintiff, wbo was employed by the defendant as a switchman, had been working with a regular switch-engine, supplied with foot-boards on each end, upon which he stood when the engine was in motion.

ActioN by W. B. Cooper, against H. W. Rouse, heard by Judge O. H. Alten and a jury, at December Term, 1901, of the Superior Court of Duplin County. From a judgment for the defendant, the plaintiff appealed.

ActioN by H. H. Ezzell against tbe Rowland Lumber Company and tbe McMillan-Miller Lumber Company, beard by Judge O. H. Allen, at August Term, 1901, of tbe Superior Court of Duplin County. Erom a judgment for tbe plaintiff, tbe defendants appealed.

ActioN by W. H. Phifer, administrator of John Eord, against Leander Eord and others, heard by Judge W. 8. O’B. Robinson, at January Term, 1901, of the Superior Court of Union County. From judgement for the defendants, the plaintiff appealed.

ActioN by A. L. Bailey, administrator, and others, against the City of Baleigh, heard by Judge W. S. O’B. Robinson, at October Term, 1901, of the Superior Court of Waee County. From a judgment for the plaintiffs, the defendant appealed.

AotioN by J. S. Armstrong and others against F. H. Stedman, Sheriff, and others, heard by Judge O. II. Allen, at December Term, 1901, of the Superior Court of New Hanover County. From judgment for the defendants, the plaintiffs appealed.

<p>TAXATION — Privilege Taxes — Gross Receipts — Acts 1901, Ohap. 9, Sec. 78.</p> <p>Under Acts 1901, Chap. 9, Sec. 78, the tax on the gross receipts of an insurance company is a privilege tax and a county may levy an ad valorem tax on the property of such company.</p>

<p>AotiqN by B. W. Brinkley against Henry Smith, heard by Judge Tho*. A. McNeill and a jury, at May (Special) Term, 1901, of the Superior Court of Columcbus County. Referred to Clerk of Superior Court to make marginal references.</p>

ActioN by Delia J. Hybart against Eliza A. Jones and others,' beard by Judge W. S. O’B. Robinson, at February Term, 1902, of tbe Superior Court of Cumberland County. From a judgment for tbe defendants, tbe plaintiff appealed.

<p>ActioN by Francis M. Moore against the Navassa Guano Company, heard by Judge Thos. A. McNeill and a jury, at September Term, 1901, of the Superior Court of BRuNswick County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>1. WILES — Alienation—Limitation.</p> <p>Where a woman devises a house and lot to her four children as “a common home, with equal rights to the same until twenty-one years after the death of herself and husband, and that “then they and their heirs are to own said house and lot in fee simple,” the restriction is valid and the property can not he sold until time limited has expired.</p> <p>2. CURTESY — Husband and Wife — Married Woman — Constitution 1868, Art. X, Sec. 6.</p> <p>Where a wife dies testate, the husband has no interest in her real estate.</p>

ActioN by A. E. Olmstead against tbe City of Raleigb, beard by Judge W. S. 0JB. Robinson and a jury, at February Term, 1902, o-f tbe Superior Court of Ware County. Erom a judgment for tbe defendant, tbe plaintiff appealed.

ActioN by Newton Robinson, administrator of John A. McDowell, against John McDowell, Jr., and others, heard by Judge Thos. A. McNeill and a jury, at October Term, 1901, of the Superior Court of Bladen O'ounty. Erom a judgment for the plaintiff, the defendant appealed.

<p>ActioN by B. F. Rosser against the Western Union Telegraph Company, heard by Judge Walter H. Neal and a jury, at September Term, 1901, of the Superior Court of Mooke County. From a judgment for the plaintiff, the defendant-appealed.</p>

<p>ActioN by W. H. McNeill against tibe Durham and Charlotte Railroad Company, beard by Judge Thos. A. McNeill and a jury, at January Term, 1902, of the Superior Court of Moore County. Erom a judgment for the plaintiff, the defendant appealed.</p>

<p>Ow petition for rehearing. Petition dismissed. For former opinion and headnotes thereto, see Peebles v. Qraha/m, 128 N. C., 222.</p>

<p>AottoN by E. E. Eaircloth ag'ainst E. B. Borden, executor-of W. T. Eaircloth, heard by Judge W. 8. O’B. Robinson, at Chambers, in Goldsboro, as of November Term, 1901, of the-Superior Court of Wayne County. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by A. W. Redger against the Worth Company, heard by Judge Thos. A. McNeill and a jury, at the September Term, 1901, of the Superior Court- of Brunswick: County. Erom a judgment for the plaintiff, the defendant ap>-pealed.

ActioN by Paul C. Graham, as receiver of the Golden Belt Hosiery Company, against J. S. Carr, and J. S. Manning, trustee, beard by Judge Thos. J. Shaw, at September Term, 1901, of the Superior Court of Durham County. Erom a judgment for the plaintiff, the defendants appealed.

<p>ActioN by F. D. Markham', Sheriff, against the Southeru Conservatory of Music, heard by Judge Walter H. Neal, at Chambers, in Durham, N. C., on January 22, 1902. From a judgment for the defendant, the plaintiff appealed.</p>

ActioN by Bertha Eritz against the Southern Railway Company, heard by Judge Thos. J. 8haw and a jury, at September Term, 1901, of the Superior Court of Guileoed County. CASE ON APPEAL. “Bertha Eritz, the plaintiff, was introduced and testified in her own behalf as follows: “I live in High Point. On the 12th of August, 1899, I went to Thomasville and returned that night. Left Thomas-ville at night, after 9 o’clock.

ActioN by J. W. Hutchins against tbe Planters National Bank of Richmond, beard by Judge Thos. J. Bhaw and a jury, • at September Term, 1901, of tbe Superior Court of Dueham; County. From a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Zachary & Zachary against D. R. Perry and Kate I). Perry, his wife, heard by Judge II. B. Starbuclc, at April Term, 1901, of the Superior Court of Wayne County. This case was brought by appeal from the Court of a Justice of the Peace to the Superior Court of Wayne County, and was heard upon the following agreed facts: “1. That at the times hereinafter mentioned, the defendant Katie D. Perry was a married woman, and was not a free trader. “2.

<p>ActioN by the Rodman-Heath Cotton Mills against the Town of Waxhaw, heard by Judge W. 8. O’B. Robinson, at Chambers, on April 3, 1901. Erom a judgment for the defendant, the plaintiff appealed.</p>

<p>1. ABATEMENT — Revival—Actions—Personal Injuries — Mental Anguish — Telegraphs—The Code, Seo. 1491, Subsec. 2.</p> <p>Under Tbe Code, Sec. 1491, an action against a telegraph, company to recover damages for mental anguish caused hy failure to deliver a telegram, abates upon the death of the person injured.</p> <p>2. ACTIONS — Misjoinder—Parties—Personal Injuries — Mental Anguish — Telegraphs—The Code, Sec. 267.</p> <p>Under The Code, Sec. 267, an action against a telegraph company for damages for mental anguish, for failure to deliver a telegram, brought by a husband and wife Individually and the wife as administratrix of her mother, is a misjoinder of causes of action and of parties.</p> <p>3. PARTIES- — Actions—Misjoinder—The Code, Sec. 272.</p> <p>Under The Code, Sec. 272, the trial judge is not authorized to divide misjoined causes of actions when there is also a mis-joinder of parties.</p>

ActioN by D. PI. Smith and wife against the Wilmington and Weldon Railroad Company, beard by Judge Thos. A. McNeill, at September Term, 1901, of the Superior Court of Robesow County. From a judgment for the defendant, Ibe plaintiffs appealed.

AcxioN by Mariali Cogdell, administratrix of Samuel Cog-dell, against tbe Wilmington and Weldon Railroad Company,, beard by Judge O. H. Allen and a jury, at February Term, 1901, of tbe Superior Court of Beaueobt County. From a judgment for tbe defendant, tbe plaintiff appealed.

<p>ActioN by J. Gr. Moore against J. H. Moore, beard by Judge W. B. Council, at LeNOIr, N. G, on December 25, 1901. ' Erom a decree allowing alimony 'pendente lite, tbe defendant appealed.</p>

<p>PetitioN to rebear this case, reported in 129 N. C., 457, is granted.</p>

ActiÓN by Fred Smith, against the Atlanta and Charlotte Railroad Company, heard by Judge W. A. Ilohe and a jury, at October Term, 19'01, of the Superior Court of Mecklen-burg County. From a judgment for the plaintiff, the defendant appealed.

AgtioN by the D. A. Tompkins Company against the Dallas Cotton Mill, heard by Judge W. A. Holes and a jury, at July Term, 1901, of the Superior Court of Mecklenburg County. Erom the judgment allowing the counter-claim, the plaintiff appealed. Plaintiff brought this action to recover a balance of $15,-789.61 and'interest, for machinery, materials, work and labor furnished and done for defendant under a contract, which is admitted in the answer.

ActioN by C. P. Frazier, administrator of Henderson James, against the Southern Railway Company, beard by' Judge Walter H. Neal and a jury, at February Term, 1902, of the Superior Court of Guilfobd County. From a judgment for the defendant, the plaintiff appealed.

<p>1. NEGLIGENCE — Contributory Negligence — Concurrent Negligence —Personal Injuries — Damages.</p> <p>In an action for personal injuries, the injury being causea by the concurrent negligence of the plaintiff and defendant, the person injured is not entitled to recover.</p> <p>'2. NEGLIGENCE — Contributory Negligence — Proximate Cause.</p> <p>Where a city negligently fails, as required by ordinance, to keep a red light on a pile of brick on side of a street and a person negligently rides a bicycle against the obstruction, such negligence of the injured party is the proximate cause of his injury.</p> <p>3. NUISANCES — Cities and Towns — Negligence.</p> <p>It is not a nuisance for a city to pile brick along the side of a street for the purpose of repairing it if a reasonably wide passageway remains.</p>

ActioN by the Board of Trustees of the Agricultural and Mechanical College for the Colored Race against B. R. Lacy, State Treasurer, heard by Judge Thos. J. Shaw, at December Term, 1901, of the Superior Court of Guilfobd County.

ActioN by J. D. Rice and wife against tbe Norfolk and Carolina Railroad Company, beard by Judge O. H. Allen and a jury, at November Term, 1901, of tbe Superior Court of Beetle County. From a judgment for tbe plaintiffs, tbe defendant appealed.

<p>1. PLEADINGS — Supplemental—Puis Darrein Continuance — Judge-—Discretion.</p> <p>Where a petition to be allowed to file a plea puis darrein continuance does not set forth facts which, if true, would he a bar to a recovery, its allowance is discretionary with the court.</p> <p>2. PLEADINGS — Presumption—Supplemental Pleaaings — Puis Dar-rein Continuance — Judge-—Discretion.</p> <p>Where a trial judge refuses to allow a plea puis darrein continuance, without assigning any reason, 'it will be presumed that, it was' refused as a matter of discretion.</p>

AotioN by W. J. Jackson against the North Carolina Corporation Commission, heard by Judge W. 8. O’B. Robinson, at September Term, 1901, of the Superior Court of Wake County. Erom a judgment for the defendant, the plaintiff appealed. A full statement of the facts may be found in the dissenting opinion of Judge Douglas, which appears to have been originally written as the opinion of the Court.

<p>1. CON TRACT 8 — Paro l Evidence.</p> <p>Where it appears that a written instrument was not intended to he a complete and final statement of the whole contract, parol evidence is competent to establish a separate oral agreement as to which the instrument is silent and which is not contrary to its terms nor tneir legal effect.</p> <p>2. PARTIES — Deceased—Personal Representatives — Partnership.</p> <p>Where a firm is a party plaintiff and a member .of the firm dies, his personal representative should be made a party.</p>

<p>1. NEGLIGENCE — Contributory 'Negligence — Last Clear Chance— Issues — Evidence—Opinion on Evidence.</p> <p>Where there are three issues submitted, one as to negligence of defendant, one as to contributory negligence of plaintiff, and one as to last clear chance, it is error tp charge that the third issue, notwithstanding the negligence of the plaintiff, is the main issue in the case, and the first issue should he answered like the third.</p> <p>2. NEGLIGENCE — Last Clear Chance — Issues.</p> <p>Where there are three issues submitted, one as to negligence of defendant, one as to contributory negligence of plaintiff, and one as to the last clear chance, it is error to charge that the third issue depends upon' and follows the finding upon the first issue.</p>

ActioN by Gr. S. Johnson against E. Van Winkle Gin and Machine Company, heard by Judge H. B. Síarbuclc and a jury, at January Term, 1902, of the Superior Court of Meck-lenbubg County. Erom a judgment for the plaintiff, the, defendant appealed.

ActioN by S. B. Sparkmau against the Western Union Telegraph Company, heard by Judge Walter H. Neal and a jury, at January Term, 1901, of the Superior Court of Due-ham County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by J. F. Jones against the Board of Commissioners of Franklin County, heard by Judge M. H. Justice, at January Term, 1902, of the Superior Court of Franklin County. From a judgment for the defendants, the plaintiff appealed.</p>

<p>ActioN by S. T. Hooker against tbe Town of Greenville, beard by Judge F. D. Winston, at Eall Term, 1901, of tbe Superior .Court of Pitt County. ' Erom a judgment for tbe defendant, tbe plaintiff appealed.</p>

Aotiow by State Bank of Chicago against J. S. Carr, heard by Judge Walter H. Neal and a jury, at January Term, 1902, of the Superior Court of Durham County. Erom a judgment for the plaintiff, the defendant appealed.

<p>DEEDS — Estoppel—Fraud—Banlcruptoy.</p> <p>Where a person, to defraud his creditors, conveys land, after-wards becomes a voluntary bankrupt, and the trustee in bankruptcy sells the land and the bankrupt, through another, becomes the purchaser, whatever title he gets by the deed of the trustee accrues to the benefit of the original grantee.</p>

<p>ActioN by Richard Johnson against tbe Atlantic and North Carolina Railroad Company, beard by Judge O. R. Allen and a jury, at January Term, 1902, of tbe Superior Court of WayNe County. Erom a judgment for tbe plaintiff, tbe defendant appealed.</p>

<p>ActiON by W. E. McCord against the Southern Railway Company, heard by Judge W. A. Hohe and a jury, at July Term, 1901, of the Superior Court of Mecklenburg County. Erom a judgment for the plaintiff, the defendant appealed.</p>

ActioN by J. E. Faulkner against J. N. King and another, heard by Judge W. S. O’B. Robinson and a jury, at October Term, 1901, of the Superior Court of Wake County. From a judgment for the defendants, the plaintiff appealed.

ActioN by F. N. Mullen against tbe Lake Drummond Canal and Water Company, beard by Judge O. H. Allen and a jury, at March Term, 1901, of tbe Superior Court of Gam-deN County. Tbis is an action for damages to plaintiff’s land by tbe discharge thereon of diverted water and the obstruction of a ditch by which it bad been previously drained.

<p>ActioN by IT.. J. Elmore against tbe Seaboard Air Line Railway Company, beard by Judge O. H. Allen and a jury, at January Term, 1902, of tbe Superior Court of Wayne County. From a judgment for tbe plaintiff, tbe defendant appealed.</p>

ActioN by H. Millhiser & Co. against L. Lee Marr & Go., heard by Judge Q. A. Jones and a jury, at October Term, 1901, of the Superior Court of Swain County. From a judgment for the defendant, the plaintiff appealed.

ActioN by H. T. Phillips against tbe Postal Telegraph Cable Company, heard by Judge George H. Broum and a jury, at March Term, 1901, of the Superior Court of David-,soN County. This is an action in the nature of trespass to' recover damages caused by the appropriation by the defendant of a part of the plaintiff’s land, for the purpose of erecting and maintaining a telegraph line. The following are the material parts of the complaint and answer.

<p>1. HUSBAND AND WIFE — Married, Woman- — Separate Property-— Mechanics’ Lien — The Code, Secs. 1781, 1826, 1827, 1832 — Acts 1901, Chap. 617 — The Constitution, Art. X, Sec. 6.</p> <p>Acts 1901, Chap. 617, amending Tlie Code, Sec. 1781, so as to allow a laborer’s lien to be taken on the property oí a married woman, is constitutional.</p> <p>2. JURISDICTION — Justices of the Peace — Mechanics’ Liens — Married, 'Women — Acts 1901, Chap. 617.</p> <p>An action against a married woman for less than $200 for material used in building a house must be brought before a justice of the peace.</p>

<p>BANKS AND BANKING — Directors—Stockholders—Fraud—Parties.</p> <p>Where a shareholder individually sues the directors of a hank for fraudulent and wrongful mismanagement of hank property, the complaint must show that a demand had heen made on the directors, or a receiver, if one has heen appointed, to bring the action, and they had refused to do so.</p>

ActioN by Adrian Harper and wife against J. H. Anderson, beard by J udge E. W. Timberlahe and a jury, at October Term, 1901, of tbe Superior Court of Edgecombe County. Erom a judgment for tbe plaintiffs, tbe defendant appealed.

ActioNS by Abrabam Lewis and J ames Overby against J. R. Oovingto-n and M. E. Overby, and R. W. George against beirs of James Overby, beard by Judge H. B. Btarbuek, at October Term, 1901, of tbe Superior Court of StoKes County. Tbe cases were consolidated, and from tbe judgment for tbe plaintiffs in- tbe first action and tbe defendants in tbe second action, defendants in tbe first action and plaintiffs in tbe second appealed.

<p>PARTIES — State Treasurer — The Code, Sec. 3359.</p> <p>Where a state treasurer goes out of office pending a suit by him in his official capacity, the incoming treasurer is entitled to he' made a party in his stead. •</p>

<p>1. PARTITION — Commissioners—Report.</p> <p>The report of commissioners in partition proceedings, dividing land, when filed, approved, confirmed, recorded and registered, becomes muniment of title, and the commissioners, without the order and approval of the court, have no right to alter or change the same.</p> <p>2. PARTITION — Commissioners—Report.</p> <p>"When commissioners to partition land make and file their report, their duties are ended, and they are funoti officio, unless tney act under a new order of the court.</p>

ActioN by Simeon Barger against the city of Hickory, heard by Judge W. A. Ilolce, and a jury, at February Term, 1902. of 1 lie Superior Court of Catawba County. From a judgment for the plaintiff, the defendant appealed.

AotioN by Lee Fuller against II. T. Jenkins, heard by Judge George A. Jones and a jury, at July Term, 1901, of the Superior Court of SwaiN County. From a judgment for the defendant, the plaintiff appealed.

<p>1. LICENSES — Taxation—Interstate Commerce — Sewing Machines— Acts 1901, Chap. 9, See. 62.</p> <p>Where sewing machines are shipped into the state to be delivered to the consignee upon payment of the purchase-price, the seller is liable for the license tax due under Acts 1901, Chap. 9, Sec. 52.</p> <p>2. LICENSES — Taxation—Collection—Levy—Acts 1901, Chap. 9, Sec. 101.</p> <p>A sewing machine shipped into the state on bill of lading, to be delivered to the consignee upon the payment of purchase-money, may be levied upon by the sheriff before delivery to the consignee, for failure to pay license 'tax due under Acts 1901, Chap. 9, Sec. 101.</p>

<p>ActxoN by T. H. Perry and others against the Board of Commissioners of Chatham County, heard by Judge Thos. A. McNeill, at Chambers, at Pittsboro, N. O., February 8, 1902. From a judgment for the plaintiffs, the defendants appealed.</p>

ActioN by A. H. Broom against Almetta v. Broom, beard by Judge W. S. O’B. Robinson and a jury, at January Term, 1901, of the Superior Court of UmoN County. From a judgment for tbe defendant, the plaintiff appealed.

<p>ActioN by Ellie McKenzie against M. E. Houston, beard by Judge Walter H. Neal and a jury, at October Term, 1901, of tbe Superior Oourt of UntoN County. Erom a judgment for tbe plaintiff, tbe defendant appealed.</p>

<p>1. IMPROVEMENTS — Betterments—Burden of Proof — Contracts— Wills.</p> <p>In an action for services rendered and for improvements under a contract with the owner that she would will land to plaintiff, the humen of proof is on plaintiff to show performance ol his part of contract.</p> <p>2. IMPROVEMENTS — Contracts—Renté—Profits— Wills — Evidence.</p> <p>In an action to recover for Services, improvements put on land hy plaintiff, under a promise to will it to plaintiff, and rents, profits and payments made to plaintiff should he considered.</p> <p>3. IMPROVEMENTS — Contracts—Parol Contracts — Betterments.</p> <p>A person is not entitled to pay for betterments placed on land before the contract to convey is made.</p> <p>4. EVIDENCE — Declarations—Competency.</p> <p>A personal representative can not introduce declarations of the deceased unless they are a part of the saíne conversation or statements proven hy the opposite party.</p>

<p>ActioN by Maggie V. Green against John A. Green, beard by Judge George A. Jones, at Chambers, at Bryson City, N. O., October 31, 1901. From a judgment for tbe plaintiff, tbe defendant appealed.</p>

ActioN by J. W. Harris and others against the Woodard & Goodridge Company, beard by Judge Walter PL. Neal and a jury, at February Term, 1902, of the Superior Court of GbaNVIlue County. From a judgment for the defendant, the plaintiff appealed.

ActioN by J. L. Phillips against the Wilmington and Weldon Railroad Company, heard by Judge George LI. Brown and a jury, at October Term, 1901, of the Superior Court of Beaufort County. From a judgment for the plaintiff, the defendant appealed.

ActioN by tiie Pender Lumber Company against tbe Wilmington Iron Works, beard by Judge Frederick Moore and a jury, at December (Special) Term, 1901, of tbe Superior Court of Pendes County. Prom a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Commercial and Farmers’ Bank of Raleigh and J. N. Holding, mortgagee to the use of said bank, against W. W. Vass, individually, and as trustee for others, heard by Judge O. H. Allen, at February Term, 1902, of the Superior Court of Waee County. Tbis was a controversy submitted without action under Section 657 of The Code, upon the following case agreed: 1.

<p>ActioN by J. W. Taylor against J. Gr. Huff, beard by Judge W. 8. O’B. Robinson, at November Term, 1901, of tbe Superior Court of Wayne County. Erom a judgment for the plaintiff, the defendant appealed.</p>

ActiON by B. B. Raiford against the Wilmington and Weldon Railroad Company, heard by Judge O. E. Alien and a jury, at January Term, 1902, of the Superior Court of WayNe County. From a judgment for the plaintiff, the defendant appealed.

<p>PetitioN to rehear this case as reported in 128 N. C., 396, is allowed.</p>

<p>1. NEGLIGENCE — Telegraphs — Evidence—Sufficiency<—Mental Anguish — Verdict—Directing.</p> <p>In an action for damages for mental anguish for delay in delivering a telegram, the trial judge should not direct a verdict against the defendant if there is more than a scintilla of evidence tending to prove that the defendant exercised due care and diligence.</p> <p>, 2. EVIDENCE — Conflicting—Sufficiency—Questions for Jury — Verdict — Directing.</p> <p>Where there is a conflict of testimony, or it is susceptible of different interpretations, the issue' must he left to the jury without any intimation of opinion on the part of the trial judge.</p>

ActiON by the Willard Manufacturing Company against the Merchants’ National Bank and Geo. H. Tirney & Co'., heard by Judge Walter H. Neal, at January Term, 1902, of the Superior Court of Durham County. Erom judgment for the plaintiff, the defendant bank appealed.

<p>ActioN by the Willard Manufacturing Company against John H. Tirney & Co., heard by Judge Walter H. Neal, at January Term, 1902, of the Superior Court of Durham County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>1. DAMAGES — Negligence—Profits—Gontracts.</p> <p>•In an action against a railroad company for failure to deliver machinery according to contract, profits become a measure of damages only where they are within the contemplation of the contracting parties and can be reasonably ascertained by calculation.</p> <p>2. DAMAGES — Measure of- — Negligence—Gontracts.</p> <p>In an action against a railroad company for failure to deliver machinery according to contract, the measure of damages is. the legal interest on the capital invested, unemployed employees, and other damages the direct and necessary result of the negligence.</p>

<p>ActioN by Gr. W. Jervis, administrator of Lucy Jervis, against J. R. Lewellyn, executor of John Jervis, heard by Judge H. R. Starbuchj at Chambers, in "Winston, N. O., December 12, 1901. From a judgment for the plaintiff, the defendant appealed.</p>

<p>ActioN by R. J. Crater, administrator d. b. n. c. t. a. of John Crater, against C. S. Ryan, administrator of A. A. Crater, heard by Judge H. B. Skarbuclc, at December Term, 1901, of the Superior Court of Eousytk County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>1. COUNTER-CLAIM — &et-off—Recoupment—The Code, Sec. Wt,-Subsec. 8.</p> <p>In an action to recover for services of minor children, a counter-' claim of a store account against plaintiff which had been assigned to defendant,'is proper under The Code, See. 244,. Shbsec. 2.</p> <p>2. EXEMPTIONS — Homestead—Constitution, Art. X, Secs. 1 and 8.</p> <p>Under Constitution, Art. X, Secs. 1 and 2, a defendant in an action is precluded thereby from availing himself of a counterclaim, though plaintiff aoes not own $500 worth of personal-property, including the debt sue’d on.</p> <p>3. CORPORATIONS — Ultra Vires.</p> <p>The purchase of a claim against an employee by a corporation, not authorized by its charter, is not ultra vires.</p>

ActioN by E. J. Bingham against the Carolina Central Railroad Company, heard by Judge H. B. Stcui'bucTc and a jury, at January Term, 1902, of the Superior Court of Meck-LENBURG County. This is an action to recover damages for'personal injuries to the plaintiff, alleged to have occurred through the negligence of the defendant. Among other allegations in the complaint are the following: “2.

ActioN by J. S. L. Orr against tbe Southern Bell Telephone Company and others, heard by Judge H. B. Starbuck and a jury, at March Term, 1902, of the Superior Court of Meoelenbueg County. Erom a judgment for the defendant, the plaintiff appealed.

<p>LIFE INSURANCE — Premiums—Fraud—Deceit—Demurrer.</p> <p>In an action by a policy-holder to recover premiums, a demurrer should he overruled where the complaint alleges that the defendant, through its agent, induced him to take the policy through fraud and deceit.</p>

<p>1. PEDDLERS — Licenses—Taxation—Acts .1901, Chap. 9, Sec. 51/.</p> <p>Under Acts 1901, Chap. 9, Sec. 54, a publishing company selling and delivering books through agents in sets, the title of books remaining in seller until paid for, is liable to license tax on peddlers.</p> <p>2. PEDDLERS — Licenses—Taxation—Acis 1901, Chap. 9, See. 54— Interstate Commerce — U. S. Constitution, Art. I, Sec. S — Commerce.</p> <p>The taxation of persons who sell books through agents and ship them to their agents to be delivered to the buyers, is not in violation of Art. I, Sec. 8, of the Constitution of the United States as to interstate commerce.</p>

ActioN by Catherine McNeely against the North Carolina Mica, Mineral and Lumber Company, heard by Judge M. H.. Justice, at October Term, 1901, of the Superior Court of McDowell County. Erom a judgment for the plaintiff, the defendant appealed.

<p>PENSIONS — Pensioners — Personal 'Representatives — Acts 1899, Chap. 198.</p> <p>A warrant for a pension issued after death of pensioner, does not become a part of assets of deceased pensioner, but must be returned to the State for cancellation.</p>

<p>ActioN by Sarah Cawfield against Amos Owens, beard by Judge M. H. Justice and a jury, at September Term, 1901, of tbe Superior Court of RutiieRfoed County.</p> <p>Tbe plaintiff, Sarab Cawfield, commenced tbis action on tbe lltb day of May, 1893, to recover possession of two certain tracts of land described in tbe complaint, one known as tbe “Covington tract” and tbe other known as tbe “DePriest land.” Her claim to tbe land is founded on a deed executed to ber by Matt McBrayer, mortgagee, tbe mortgage having been executed on tbe 10th of November, 1887, by Amos Owens, the owner of tbe land, bis wife, Mary Owens, not having joined him in its execution. At tbe time of tbe execution of the mortgage, there was a large judgment against the mortgagor docketed in tbe Superior Court of bis county where tbe land was situated. Tbe Covington tract was conveyed to Amos' Owens in September, 1868, and be' became tbe owner of tbe DePriest land in 1854. Tbe complaint was in tbe usual form in such actions and tbe answer of tbe defendant Mary, tbe defendant Amos having withdrawn his answer, was a simple denial of its allegations: — she having withdrawn that part of her answer which set up a resulting trust in the land. On the trial the defendant was allowed, over the plaintiffs objection, to introduce evidence tending to show that the entire real estate of Amos Owens at the time of the execution of the mortgage was worth less than a thousand dollars.</p> <p>The plaintiff requested the following instructions: 1. That if the jury believe the evidence, the plaintiff was the owner of both tracts of land described in the complaint. 2. That the joinder of the wife in the mortgage to R. and M. MoBrayer was not necessary, she only having an inchoate right of dower in said land contingent upon her surviving her husband. 3'. That the defendant husband being estopped by his mortgage deed, the feme defendant could not set up a claim to homestead in the Covington tract of land without alleging and proving there were minor children of the defendants. His Honor instructed the jury that if they believed the evidence, the plaintiff was entitled to recover the DePriest tract, but was not entitled to recover the Covington tract. To this instruction, in so far as it related to the Covington tract, the plaintiff excepted. The jury found that the plaintiff was the owner of the DePriest tract, and that the possession of the defendant of that tract was wrongful. Erom the judgment rendered on the verdict, the plaintiff appealed as to the Covington tract.</p>

INDICTMENT against Asbury Telfair, heard by Judge E. W. Timberlake and a jury, at October Term, 1901, of the Superior Court of EeanKlin County. From a verdict of guilty on a special verdict, and judgment thereon, the defendant appealed.

INDICTMENT against R. B. Hopkins, beard by Judge F. D. Winston and a jury, at October Term, 1901, of tbe Superior Court of Pamlico County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against Lucinda Goode, beard by Judge W. 8. O’B. Robinson, at September Term, 1901, of tbe Superior Court of Waee County. Erom a verdict of guilty and judgment tbereon, tbe defendant appealed. Tbe prosecuting witness, a white man, went to tbe bouse of defendant, ■ an old colored woman, to collect some money on furniture wbicb bad been sold to ber husband on tbe installment plan. She invited him into ber house and to take a seat; be told bis errand.

INDICTMENT against Ed. S. Battle and A. M. Powell, heard by Judge W. 8. O’B. Robinson and a jury, at September Term, 1901, of the Superior Court of Wane County. Erom a verdict of guilty of both defendants and judgment thereon, the defendant Battle appealed.

<p>INDICTMENT against Nathan Holleman, beard by Judge W. 8. O’B. Robinson, at July Term, 1901, of tbe Superior Court of Waee County. Prom a verdict of guilty and judgment thereon, tbe defendant appealed.</p>

INDICTMENT against Nelson Buchanan, heard by Judge Walter H. Neal and a jury, at November Term, 1901, of the Superior Court of UNION County. Erom a verdict of guilty and a judgment tbereon, tbe defendant appealed.

INDICTMENT against John W. Maultsby, beard by Judge W. S. O’B. 'Robinson and a jury, at January Term, 1902, of tbe Superior Court of Cumberland County. Erom a verdict of guilty and judgment thereon, the defendant appealed.

<p>INDICTMENT against Benjamin Eoster, beard by Judge E. W. Timberlálce and a jury, at October Term, 1901, of tbe Superior Court of Eeanxein County.</p> <p>Tbe deceased and tbe prisoner were employees of one Cop-pedge, and tbe homicide occurred- at tbe barn of said Cop-pedge on Saturday evening just before nigbt. Tbe deceased,, Eomey Johnson, was unloading guano, bis father, a nephew* and some other persons being present, though it does not appear whether they were assisting in unloading the guano or not. The prisoner passed near the barn, when the nephew called to the prisoner to come and help unload the guano, which the prisoner refused to do, and the evidence shows that he cursed the crowd at the bam and the deceased cursed him, and the prisoner threw a rock which struck the deceased on the head, inflicting, a wound from which he died next morning. There was evidence that the prisoner and deceased had some trouble abo-ut a bridle about a month before the homicide, when the prisoner said “he would fix” the deceased; that the prisoner and deceased had not been on friendly terms since that time, and the prisoner had complained that evening to Coppedge that the deceased had cursed him; that the prisoner had picked up the rock he threw at deceased between the house and the bam of Coppedge, and that the prisoner’s way home, a distance of some two hundred yards, was by the bam where the difficulty took place. It wasi also in evidence that the prisoner ran after throwing the rock, cursed the deceased, saying, if he had not killed the deceased, who followed him a short distance, that he would kill him if he followed him; that next morning the prisoner went back to Coppedge’s, but upon heaiúng a noise at the deceased’s house, which led him to think Johnson was dead, he went into the woods, where he remained for about two weeks, and until he' received information from Coppedge that if he would come in he would see that he was not mobbed, when he came in and surrendered himself to the Sheriff of the county. The prisoner went upon the -witness-stand and gave his version of the difficulty; denied saying “he would fix” the deceased at the time of the trouble about the bridle; denied that he intended to kill the deceased; said he picked up the rock because be was afraid the deceased would attack him, as he had before that time threatened him; said the deceased came at him with a drawn knife, and he threw the rock in self-defense. He also introduced other witnesses for the purpose ■of corroborating him as to threats of the deceased. Among them was Coppedge, who, among other things, testified that the prisoner “was a little fussy,” and that his character' for truth was not the best. Erom a verdict of murder in the first degree and judgment thereon, the defendant appealed.</p>

INDICTMENT against Dock Howe, beard by Judge Walter 11. Neal and a jury, 'at July Term, 1901, of tbe Superior Court of Union County. Defendant was arrested upon a warrant issiied by a Justice of tbe Peace. Tbe offense intended toi be charged was for a failure to work upon the public roads, of which tbe Justice of tbe Peace had final jurisdiction. The warrant was fatally defective in that it did not charge facts which constitute an offense.

INDICTMENT against Martin Thompson and others, heard by Judge A. L. Goble and a jury, at September Term, 1901. of the Superior Court of Montgomery County. Erom a verdict of guilty as to Martin and Will Thompson, and judgment thereon, the defendants appealed.

IwdictmeNT against Archie Oonly, heard by Judge A. L. Coble and a jury, at November Term, 1901, of the Superior Court of RowaN County. Erom a verdict of guilty of murder in the first degree and judgment thereon, the defendant appealed.

INDICTMENT against Dick Flemming, Ed. Woods1 and Rick-ard Blaton, beard by Judge Thos. J. Bhaw and a jury, at February Term, 1902, of tbe Superior Court of Ro-wan-County. From a verdict of guilty as to Dick Flemming and Rickard Blaton, and judgment thereon, they appealed.

<p>INDICTMENT against George Ellsworth and J. H. Traynor, heard by Judge Walter E. Neal and a jury, at September Term, 1901, of tbe Superior Court of Anson County. E’rom a verdict of guilty as to both defendants and judgment thereon, they appealed.</p>

INDICTMENT against J. E. Briggs and A. Savery, heard by Judge A. L. Goble and a jury, at February Term, 1902, of the Superior Court of Forsyth County. From the finding of a special verdict and a judgment of guilty thereon, the State appealed.

<p>1 RAPE — Emission—The Code, Seo. 1101, Acts 1895. Chap. 295.</p> <p>In rape the least penetration of the' person is sufficient, and the emission of seed is unnecessary.</p> <p>2. RAPE — The Code, Secs. 1101-5 — Acts 1895, Chap. 295.</p> <p>In an indictment under Acts 1895, Chap. 295, for carnally knowing a girl between the ages of 10 and 1^, it is error to charge that the crime would he complete “if the jury should And that the defendant injured and abused her genital organs."</p>

INDICTMENT against Garrett Coates, beard by Judge M. H. Justice and a jury, at Eebruary Term, 1902, of tbe Superior-Court of Madison County. From a verdict of guilty and4 judgment tbereón, tbe defendant appealed.

INDICTMENT against Plummer Hicks, beard by Judge E. W. Timberlake and a jury, at Fall Team, 1901, of tbe Superior C'ourt of Vance County. Grant Hall, á witness for tbe State testified: “I am a carpenter and live at Kittrell’s, about balf a mile from where Robert C'rudupi was sbot; beard gun on nigbt of shooting at quarter to nine o’clock. It was Sunday nigbt, June 30,1901. Soon after bearing gun I went to Moses Link’s and found Robert Crudup dead.

INDICTMENT against Henry Peak, heard by Judge W, B. Gouncil and,a jury, at Spring Term, 1902, of the Superior Court of Pole County. From a verdict of guilty and judgment thereon, the defendant appealed. -

INDICTMENT against Zeb. Sumner, heard by Judge Thos. J. Shaw and a jury, at April Term, 1901, of the Superior 'Court of MacoN County. From a verdict of guilty of manslaughter and judgment thereon, the defendant appealed.

INDICTMENT against W. II. O. Prank, beard by Judge G-eorge A. Jones and a jury, at March Term, 1902, of the Superior Court of Chowan County. Prom a special verdict and judgment of not guilty thereon, the State appealed.

' INDICTMENT against E-lam Wiseman and Hester Blalock, heard by Judge W. B. Council and a jury, at September Term, 1901, of the Superior Court of Mitchell County. From a verdict of guilty as to Wiseman and judgment thereon, he appealed.

<p>INDICTMENT against Wesley New, beard by Judge W. A. Hoke and a jury, at April Term, 1901, of the Superior Court of Sampson County.</p> <p>This is a criminal action for the obstruction of a public officer in the discharge of his duty, tried before Judge W. A. Hoke.</p> <p>The evidence showed that the defendant was the owner of two and one-fourth acres of land, all cleared, fenced and under cultivation.</p> <p>The public road leading from the corporate limits of Clinton, at the Barden House to Stevens Bridge, and that E. O. Williams was the overseer of said section, duly appointed and acting. That in January, 1901, said oveseer, with his hands, were working his section. That in the public road, on the outside of defendant’s fence, there was a basin or low place in the road; that in wet times, when there was over the ordinary rainfall, the water from this basin overflowed through defendant’s field into a basin similar to this one in the road, and from defendant’s field the water flowed only in extra wet times to another basin on Draughan’s lands, the adjoining landowner, which was uncleared. The defendant News’ field was 70 yards wide.at this point; that near the back fence from the road was the lowest place in defendant’s field; that the defendant was in his field with the iron scabbard to a sword beating down cotton stalks, when the overseer ordered his' hands to enter the field; that the defendant forbade the overseer and hands to enter. They did enter, and passed to the low place near the back fence. At this point, about 70 yarda from the road, E. C. Williams, overseer, ordered his hands to1 begin cutting a ditch, intending to cut it to the basin in the road to dry the water off the road and into defendant’s field. Defendant again forbade both overseer and hands.</p> <p>The overseer then told defendant he intended to cut the ditch any way. Defendant sftnck the scabbard into the .ground and said to the overseer:</p> <p>“Not unless you do it over my dead body.”</p> <p>The overseer then ordered his hands to stop-, and they did so. The evidence showed the road to have been a public road for 60 years, and at this point there were fences on both sides of the road, 22 feet from each other. That in very cold weather in winter the ice on this water would bear a team and loaded wagon. That the water was from 4 to 6 inches deep in the basin, and about 40 yards long. That it was not boggy, and was passable at. all times, but when the ice was very thinek was dangerous, on account of the teams slipping on the ice. That defendant purchased' the 2 1-4 acres from ■John Dickson, who bought it from Walter Draughan and cleared it up. That before Dickson bought it, and while it was in the woods, the overseer of the road had cut a trench about four inches deep into the woods to dry this basin, which trench was cut by the overseer along the natural drain for the water, this being the only natural drainage to the basin in the road.</p> <p>The defendant, through his counsel, requested the Court to instruct the jury that the overseer had no legal authority to enter defendant New’s field to cut a ditch, to dry this basin, and sncb entry, after being forbidden by New, was a trespass if made by tbe overseer. That under all the evidence the defendant was not guilty. That no proceedings having been shown to condemn that part of defendant New’s field, defendant was not guilty for resisting the trespass of the Overseer. That defendant had-a right to resist a trespass such as this, and was not guilty. The Court instructed the jury that it was a misdemeanor to obstruct a public officer in the discharge of his duty. This obstruction must be wilful. If the evidence was believed, a public officer, an overseer of a public road, was obstructed. That if it was necessary to the safety of persons and teams passing over this road to relieve the roads of this water, and if the natural drain of the water was through defendant’s field, then the defendant would be guilty, if the overseer entered the field only for the purpose of cutting the small drain to relieve the road of the water, and if this was necessary for the safety of passengers.</p> <p>This, however, can only be done by the overseer from necessity to relieve the road, and make it safe for travelling. If the overseer entered for such purpose, and under such necessity, tiren he would be in the proper discharge of his duty, and defendant would be guilty. If, however, there was no present necessity to- relieve the road, and it was not the natural and proper drainage way, and it was not necessary to relieve the road, the defendant would be not guilty. Then the overseer would be a trespasser, and defendant had a right to obstruct him.</p> <p>The State contends that- there was ice in the basin, and this threatened the safety of travellers; that the overseer attempted to drain the water off to relieve the road. That it was necessary to relieve it; that this was the only practicable way to relieve the road; that the road always has been relieved that way.</p> <p>The defendant contends that there was- no- ice there then, that there was no natural drainage>-way to this basin, that to •drain it on defendant’s lands would ruin his crops. That defendant would have to' cut a ditch 400 yards through Drau-ghan’s land tc relieve his field; that the overseer could cut a ditch two feet deep, 35 yards long, on his own land, and relieve the road of all water; that no former overseer had cut a ditch into this field; that when the lands were woods, then if a trench had been cut this would not now give the overseer a right to cut this ditch.</p> <p>The defendant, in apt time, objected to that part of the Court’s charge which in substance said: If there was a present necessity to relieve the road, and if the overseer entered the field for this purpose, he would be in the proper discharge of his duty, and the defendant would be guilty; objection overruled, and defendant excepts. The defendant excepts because the Court refused the instruction prayed for by defendant.</p> <p>Erom a verdict of guilty and judgment thereon, the defendant appealed.</p>