Volume 132 — North Carolina Reports

Action by S. L. Sexton against the Phoenix Insurance Company, heard by Judge Frederick Moore and a jury, at October Term, 1902, of the Superior Court of WashiNG-toN County. From a judgment for the defendant, the plaintiff appealed.

AotioN by the County Board of Education of Pitt County against the Town of Greenville, heard by Judge George H. Brown, at October Term, 1902, of the Superior Court of Pitt County. From a judgment for the defendant, the plaintiff appealed.

Action by Fannie E. Norman against B. E. Hallsey, beard by Judge Frederick Moore and a jury, at Fall Term, 1902, of the Superior Court of Washington County. From a judgment for the plaintiff, the defendant appealed.

<p>1. REHEARING — Supreme Court.</p> <p>The supreme court will not review a ruling of its own, which does not affect injuriously the complaining party, even where the ruling is erroneous.</p> <p>2. APPEAL — Courts—Federal Question — Judgments.</p> <p>When the decision of a federal question by a state supreme court is necessary to sustain the judgment rendered, the supreme court of the United States will review such judgment, although another question, not federal, is decided.</p>

<p>1. CONTRACTS — Pleadings—Burden of Proof.</p> <p>When the complaint alleges a contract to superintend certain work for a certain per cent of the cost thereof and the answer denies the allegations of the complaint and sets up a special contract, the burden is on the defendant to prove the contract as alleged by him.</p> <p>2. PLEADINGS — Assumpsit—Contracts—Quantum Meruit.</p> <p>A plaintiff may declare on a special contract and join therewith a cause of action as on a quantum meruit.</p> <p>3. CONTRACTS' — Definition.</p> <p>Where the minds of two contracting parties do not come together, there is no special contract.</p> <p>4. ISSUES — Mandatory—The Code, See. 395.</p> <p>The provisions of The Code requiring issues “arising upon the pleadings” to be submitted to the jury are mandatory.</p> <p>6. INSTRUCTIONS — Hypothesis.</p> <p>The trial judge should not give instructions based upon hypotheses upon which there is no testimony.</p>

<p>DIVORCE — Affidavit—Verification-—The Code, Secs. ¡357, 258, 1287.</p> <p>The usual verification of a complaint in a civil action is insufficient as an affidavit such as is required by section 1287 of The Code, in an action for divorce.</p>

<p>Action by R. B. Hopkins against Julia A. Hopkins, beard by Judge Francis D. Winston and a jury, at Spring Term, 1902, of the Superior Court of Pamlico County. From a judgment for the defendant, the plaintiff appealed.</p>

Action by Bismarck Scull and others against the HCtna Life Insurance Company, bear’d by Judge George A. Jones, at November Term, 1902, of the Superior Court of Bertie County. From a judgment for the defendants, the plaintiffs appealed.

Action by Thos. D. Holley against William Smith, beard by Judge George A. Jones and a jury, at November Term, 1902, of the Superior Court of Beetie County. From a judgment for the defendant, the plaintiff appealed.

ActioN by Juliet C. Duffy against Isaac H. Smith, heard by Judge George- H. Brown and a jury, at September Term, 1902, of the Superior Court of Chaven County. From a judgment for the plaintiff, the defendant appealed.

<p>Action by W. D. Meadows against the Western Unión Telegraph Company, beard by Judge George II. Brown and a jury, at November Term, 1902, of the Superior Court of Guayen County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>The State on relation of T. O. Rodwell against T. N. Harrison, beard by Judge George A. Jones, at November Term, 1902, of the Superior Court of Halifax County. From a judgment for the defendant, the plaintiff appealed.</p>

Action by W. H. Hughes against L. D. Gay and others, heard by Judge George A. Jones, at September Term, 1902, of the Superior Court of Northampton County. From an order refusing a motion to dismiss the action for defect of parties, the defendants appealed.

ActioN by Arthur Norwood against S. M. Lassiter and others, heard by Judge George H. Brown and a jury, at March Term, 1902, of the Superior Court of Northampton County. From a judgment for the defendants, the plaintiff appealed.

Action by Ambrose Lindsay, against the Norfolk and Southern Railroad Company, heard by Judge Francis D. Winston and a jury, at Special (December) Term, 1902, of the Superior Court of Cuerituce: County. From a judgment for the plaintiff, the defendant appealed.

<p>Action by A. C. Ricaud, receiver of the First National Bank of Wilmington,' against Alderman & Planner, beard by Judge B. B. Peebles, at February Term, 1903, of the Superior Court of New HaNOvbe County.</p> <p>Homer J. Clark, who is referred to in the opinion, was appointed receiver in place of A. G. Ricaud, resigned. E. K. Bryan was' counsel for plaintiff in the action from its commencement. He purchased the judgment in question from Homer J. Clark, as receiver, along with other assets of the bank.</p> <p>From an order setting aside a judgment as to A. J; Flanner individually, the plaintiff appealed.</p>

Action for an injunction by E. Porter and wife against T. J. Armstrong and others, beard by Judge II. B. Bryan, at September Term, 1902, of the Superior Court of Pendee County. From a judgment for the defendant the plaintiffs appealed.

<p>Action by W. J. Beaman and others, against Clifton Ward, heard by Judge E. W. Timberlake and a jury at May Term, 1902, of the Superior Court of Sampson County. From a judgment for the plaintiffs, the defendant appealed.</p>

<p>Action by Albert N. Porter against the Raleigh & Gaston Railroad Company, heard by Judge Francis D. Winston and a jury at October Term, 1902, of the Superior Court of Vance County. From a judgment for the defendant, the plaintiff appealed.</p>

Action by the Hamburg-Bremen Eire Insurance Company against the Atlantic Coast Line Railroad Company, heard by Judge Francis D. Winston and a jury, at October Term, 1902, of the Superior Court of EdgkecoMBe County. From a judgment for the plaintiff, the defendant appealed.

<p>1. INSTRUCTIONS — Trial.</p> <p>Where the trial court uses the word “plaintiff” for “defendant”, but the context shows that it was a mistake and a correction is made in another part of the charge, such mistake was not prejudicial.</p> <p>2. INSTRUCTIONS — Harmless Error — Ejectment.</p> <p>In ejectment, an instruction as to color of title, the only issues involved being the location of a boundary and adverse possession, is not prejudicial.</p> <p>3. ADVERSE POSSESSION — Ejectment—Limitations of Actions.</p> <p>In an action to recover land which had been occupied adversely by defendant for 20 years, the fact that the plaintiff did not know the location of his line or that the land was his until a few days before the suit was commenced, is immaterial.</p> <p>4. EJECTMENT — Issues—Instructions—Limitations of Actions.</p> <p>Where, in ejectment, four issues are submitted, one being as to the statute of limitations, an instruction as to facts bearing on this issue alone should be limited thereto.</p>

<p>1. EJECTMENT — Boundaries—Burden of Proof.</p> <p>In ejectment, there being an issue as to the boundary line between two adjoining tracts, the burden of proving the correct line is on the plaintiff.</p> <p>2. EJECTMENT — Evidence—Instructions— Wills — Boundaries.</p> <p>Testator purchased two adjoining tracts of land at different times and under distinct deeds, one tract from A., and the other from D. Thereafter he cut a canal differing from the boundary between the two tracts, and put plaintiff in possession of the D. tract up to the canal, and defendant in possession of the A. tract up to the canal, and subsequently devised the D. tract to plaintiff and the A. tract to defendant. There was evidence that the canal cut some eight acres off the. south side of the D. tract, as described in the deed to the testator; also that the eight; acres was included in the description in the deed for the A. tract; also that testator had treated the canal as the dividing line. In ejectment to recover the eight acres, the plaintiffs’ ownership did not depend on whether they were included in the deed of the D. land, even if it was the senior deed, but on whether, by the terms of the will, they were devised to him; and the intention of the testator at the time of cutting the canal would not determine the true boundary between the tracts, but his intention at the time of making the will.</p>

ActioN by S. E. Porter and others against H. C. Bridgers and others heard by Judge Francis D. Winston and a jury,., at October Term, 1902, of the Superior Court of Edgecombe county. From a judgment for the plaintiffs, the defendants appealed.

ActioN by the Southern Grocery Company against J. P. Davis, heard by Judge O. H. Allen and a jury, at December (Special) Term, 1902, of the Superior Court of Franklin County. From a judgment vacating the arrest and bail, the plaintiff appealed.

<p>1. NEGLIGENCE— Crossings — Signals—Railroads.</p> <p>An instruction by the trial court that it is the duty of an engineer to ring the bell and blow the whistle when approaching a crossing is erroneous</p> <p>2. EVIDENCE — -Corroborative Evidence — Substantive Evidence — Witnesses.</p> <p>Where witnesses give testimony corroborative of another witness, such testimony also being itself substantive evidence, an instruction that this evidence can be considered only as corroborative or contradictory of such other witness is erroneous.</p>

ActioN by N. B. Finch against Mary J. Strickland and others, heard by Judge Francis D. Winston, at August Term, 1901, of the Superior Court of Nash County. From an order allowing an amendment to the complaint, the defendants appealed.

ActioN by Mariab Collins, administratrix of J. T. Collins, against John C. Davis and others, heard by Judge M. II. Justice and a jury, at January Term, 1902, of the Superior Court of Franklin county. From a judgment for the plaintiff the defendant Davis appealed.

<p>ActioN by Benjamin May against B. M. Lewis, beard by Judge G. 8. Ferguson, at January Term, 1903, of the Superior Court of Pitt county. From a judgment for the defendant, the plaintiff appealed.</p>

<p>1. INSURANCE— Certificate of Membership — Annual Dues — Beneficial Association.</p> <p>Where the losses of a beneficial association were paid from assessments, and the certificate provided that annual dues should amount to a certain sum and should be paid on a certain day, and an agent soliciting for the association told insured that he would have 20 days’ notice “of anything to be paid under the policy,” such statement did not cover annual dues, but referred merely to such things as were uncertain, such as assessments for losses.</p> <p>2. APPEAL — -Exceptions and Objections — Bindings of Court.</p> <p>Where no exception is taken in the trial court to findings of fact as not being supported by any evidence, such objection will not be considered on appeal.</p>

ActioN by John L. Morebead and others, against David B. Hall and others, heard by Judge George H. Brown, at September Term, 1902, of the Superior Court of Carteret County. From a judgment for the defendants, the plaintiffs appealed.

ActioN by II. C. Pinnix and others, against the Lake Drummond Canal and Water Company, beard by Judge Frederick Moore and a jury, at September Term, 1902, of the Superior Court of Camden County. From a judgment for the plaintiffs, the defendant appealed.

ActioN by J. O. Parker and others against the Southern Express Company, heard by Judge E. W. Timberlake and a jury, at November Term, 1902, of the Superior Court of Harnett County. From a judgment for the plaintiffs the defendant appealed.

<p>ActioN by B. R. Lacy, State Treasurer, against the Clinton Loan Association, heard by Judge H. R. Bryan, at Chambers, Jan. 30, 1903, in Waice County. From an order made upon a petition filed by W. A. Dunn, who had been appointed receiver of the defendant, asking to be instructed by the Court, to which petition A. F. Johnson filed an answer, defendant appealed.</p>

ActioN by W. M. and W. B. Stephens against H. J. McDonald, beard by Judge O. JJ. Allen and a jury, at April (Special) Term, 1902, of the Superior Court of HarNett County. From a judgment of non-suit, the plaintiff appealed.

<p>ActioN by D. IT. Murray and others against J. J. Barden, executor of will of John Barden, heard by Judge E. W. Tim-berlake, at May Term, 1902, of the Superior Court of Samp-soN County.</p> <p>Tbutuim. The plaintiffs, the children and grand-children of the testator of the defendant, brought this action to recover an amount alleged to be due to them by the testator. The allegation is that the defendant’s testator in 1872 received, as guardian of a part of the plaintiffs and as agent of the others, a large amount of money bequeathed to them by the will of James Yann. An order of reference was made in the case, and under that order a. hearing was had and a report made by the referee, E. R. Cooper, as follows: “From the pleadings, admissions and evidence in the case I find the following facts:—</p> <p>1. That by the will of James Yann (Will Book No. 2, 108, of records of Sampson County) one third of the residue of his estate was devised to the children of John Barden, thirteen in number. That on February 6th, 1872, John Bar-den collected the shares of all his children except Mrs. IT. Cornelia Oaxleton. That her share was collected by her husband IT. J. Carleton, by his attorney M. 0. Richardson, under a power of attorney and was paid to her on January 31st, 1871, and that the amount paid to- her as the net proceeds of such collection was $127.58, and that this was the amount due her after deducting cost of collection and attorney fees on the date of the settlement of the estate of James Yann by his executor, which was on March 2d, 1870. That the shares of the other twelve children was collected by John Barden on February 6th, 1872, and the amount then collected for each one of the twelve was one-thirteenth of one-third of $6,510.31, which amounts to $166.93. But from this there should be deducted the cost of collection and attorney fees, and I therefore, find that on February 6th, 1872, John Bar-den collected for each of his thirteen children except Mrs. H. Cornelia Carlton, the sum of one hundred and fifty dollars. Tbis finding gives to each one of the twelve more than twenty dollars more than was received by Mrs. H. Cornelia Carleton, and is fixed upon by the Referee being fair to all parties.</p> <p>2. That on March 12th, 1810, John Barden qualified as guardian of five of his said children, to-wit: Virginia E. Bar-den, Rebecca, N. Barden, Victoria Barden, Minnie D. Barden and J. J. Barden, and as such guardian collected their shares as aforesaid.</p> <p>3. That under a power of attorney he collected the shares of five other of his children, to-wit: Mary C. Murray, Nancy J. Winders, Sarah 0. Page, Ellen V. Carroll, Martha M. Carroll.</p> <p>4. That in some way not clear to the Referee, he collected the shares of Charlotte W. (Puss) Smith and Ida C. Ohes-nutt. There remains the question as to which, if any, are barred by lapse of time and which, if any, have been settled with legally in whole or in part.</p> <p>5. Nancy Jane Winders first married Horace Winders, who died, and then about 1861 she married W. H. Winders, and is still a married woman. Her share was collected under the power of attorney.</p> <p>6. Mary 0. married D. H. Murray before 186Y, and her husband is still living. Her share was collected under power of attorney.</p> <p>Y. Caroline married Daniel Page before 186Y, 20 or 25 years ago, and died leaving her husband and two children, Walter and Oscar Page. Her share was collected under the power of attorney.</p> <p>8. Ellen married’Jas. L. Carroll before 18 6Y.</p> <p>9. Martha married Amnie Carroll before 186Y.</p> <p>10. Virginia E. married R. 0. Orrell about 18Y0, and her husband is still living.</p> <p>11. Rebecca M. married Abbie Page about 18Y5, and died before August 25, 189Y, leaving five minor children.</p> <p>12. Charlotte W. married Y. B. Smith, January 14th, 1869, and she was then eighteen years old, and her husband is still living.</p> <p>13. Ward. Victoria married Isaac Herring about 1818. She died in 1896, leaving five minor children.</p> <p>14. Ward. Minnie D. married Monroe Blanchard, about 1880, and died prior to August 29th, 1894, leaving minor children.</p> <p>15. Ida 0. married E. T. Ohesnutt about 1886, and her husband is still living.</p> <p>16. J. A. Powell paid to Mrs. R. L. Herring and her husband I. W. Herring on August 23rd, 1894, one hundred and fifty dollars and took a receipt signed by them, of which the following is a copy: “Whereas, on the 12th day of March, 1810, John Barden qualified as my guardian in the County of Sampson, and entered into bond as such guardian, with L. A. Powell and others as sureties thereto; and whereas, the said Barden is now dead and has never settled with me, and his estate is indebted to me in about the sum of four hundred and fifty dollars. Now, therefore, for value received, I hereby transfer and assign to J. A. Powell said indebtedness and all my claims against the estate of the said Barden and against the sureties upon said guardian bond.</p> <p>This 3d day of August, 1894.</p> <p>(Signed) R. V. HerriNG.</p> <p>I. W. HerriNG.</p> <p>17. On August 29th, 1894, J. A. Powell paid $150 to I. M. Blanchard, the surviving husband of Minnie D. Blanchard, who before that time had died, leaving minor children, and took from said surviving husband receipt, same as in No. 16.</p> <p>(Signed) I. M. BlaNoiiard, [Seal.]</p> <p>18. On October 15th, 1894, J. A. Powell paid to Virginia E. Orrell and. her husband R. 0. Orrell one hundred and fifty dollars and took their receipt, same form as in No. 16.</p> <p>(Signed) ViegiNia E. Oeeell,</p> <p>R. C. Oeeell.</p> <p>19. That on the 24th day of November, 1894, J. J. Blanchard paid to- Mrs. Mary 0. Murray and her husband one hundred and twenty-five dollars and took receipt in name of J. A. Powell. Same as No. 16.</p> <p>(Signed) Maey 0. Mueeay. [Seal.]</p> <p>D. H. Mueeay. [Seal.]</p> <p>20. That on December 21st, 1894, J. J. Barden paid to Mrs. Charlotte W. Smith and her husband Y. B. Smith $135, and took receipt in name of J. A. Powell, same as No. 16.</p> <p>(Signed) Puss Smyth. [Seal.]</p> <p>Y. B. Smith. [Seal.]</p> <p>21. That on the 7th day of April, 1897, J. J. Barden paid to Ida 0. Chesnutt $125, and took receipt in name of J. A. Powell, same as No. 16.</p> <p>(Signed) Ida O'. Oheshutt. [Seal.]</p> <p>E. T. OhesNutt. [Seal.]</p> <p>22. That on the 25th day of August, 1897, J. J. Barden paid to Abner Page on account of the claim of-his wife one hundred and twenty-five dollars, and took receipt in name of J. A. Powell, same as No. 16.</p> <p>(Signed) Abhee Page., as Administrator. [Seal.]</p> <p>22%- That on the 9th day of November, 1895, J. J. Bar-den paid to Mary J. Winders $125, and took a receipt from Nancy J. Winders and her husband W. II. Winders in name of J. A. Powell, same as No. 16.</p> <p>(Signed) W. H. Williams. [Seal.]</p> <p>Nahcy J. WiNdees. [Seal.]</p> <p>23. That John Barden died about February 1st, 1894, and his will was probated on February 6th, 1894, and J. J. Barden qualified as bis executor and published the “Notice to Creditors,” on February 6th, 1894, in due form of law.</p> <p>24. That all the children of John Barden had knowledge of this claim against the estate' of John Barden by reason of the James Vann devise, and they knew or could have known by the use of ordinary care approximately the sum due them, but they did not know to what extent their claim could be collected out of the estate of John Barden and the estate of his bondsman.</p> <p>25. That J. J. Barden did not inform the other children or issue of children of J ohn Barden as to the real vahie of the John Barden estate, or as to their legal right to subject all of said estate (except year’s allowance and dower right of widow) to the payment of their claim, but on the contrary he bought their claim for as small a sum as he could except the claims of Mrs. Herring, Mrs. Orrell and Mrs. Blanchard, which were bought as above set forth by J. A. Powell to protect the estate of his father L. A. Powell, who was surety on the guardian bond, and who, before the beginning of this action, agreed to transfer these claims to J. J. Barden upon being repaid.</p> <p>26. That the children and issue of children of John Bar-den had the same opportunity to ascertain the value of the Barden estate and the liability to their claim as did J. J. Barden, and by reasonable care and investigation they could have ascertained approximately the extent of their claims and the extent to which said estate was liable.</p> <p> Conclusions of Law. </p> <p>From the foregoing facts, the Referee finds the following conclusions of law:</p> <p>1. That the estate of John Barden is not liable to H. Cornelia Carlton for anything by reason of the Vann legacy.</p> <p>2. That the children of Mary 0. Murray and Nancy Jane Winders, Virginia. F. Orrell, the children of Rebecca Page, Charlotte W. Smith, Victoria Herring, children of Minnie D. Blanchard, Ida C. Chesnntt are not barred by the statute of limitations.</p> <p>3. That the statute of limitations having been pleaded, it was incumbent on tire plaintiffs to show that they are not barred, and, under this rule, I find that the claims of the children of Caroline Page, to-wit, Walter Page and Oscar Page, Ellen Carroll, Martha Carroll are barred by the statute of limitations.</p> <p>4. That J. A. Powell is now the owner of all the claims of Victoria Herring, or her husband and children, and of all the claims of Virginia E. Orrell against the estate of John Barden by reason of the Vann legacy.</p> <p>5. That the children of Minnie E. Blanchard are entitled to recover out of the estate of John Barden one hundred and fifty dollars, with interest from February 6, 1872, because the Referee holds as a matter of law that the receipt and transfer of the share of Minnie D. after her death by her husband I. M. Blanchard did not pass the said claim, and the same is still the propertv of her children.</p> <p>6. That J. J. Barden is the owner by purchase of the claims of Nancy J. Winders, Mary 0. Murray, Charlotte W. (Puss) Smith, Ida C. Chesnutt, and they are not entitled to recover anything from the said estate by reason of the Varm legacy.</p> <p>7. That J. J. Barden is the owner by purchase of the claim of the children of Rebecca N. Page, but the only evidence that Abner Page, who signed the receipt and transfer, is the administrator of Rebecca Page, his wife, is his signing the receipt as such, and there being no evidence to the contrary, the referee holds that it is prima facie proof, and that said children of Rebecca Page are not entitled to recover anything by reason of the Vann legacy.</p> <p>8. That the children of Daniel Page, Ellen Carroll, Martha Carroll, are not entitled to recover anything by reason of the Vann legacy.” (Signed by referee).</p> <p>The plaintiffs filed numerous exceptions to the report, but the court confirmed the same in all respects and entered judgment as appears of record. To this confirmation of the report and judgment the plaintiffs filed exceptions and appealed.</p>

<p>ActioN by Bruce Hicks against A. T. Barnes, heard by Judge Francis D. Winston and a jury, at September Term, 1902, of the Superior Court of Vance County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>Action by M. G. Craft and wife against the Albemarle Timber Company, beard by Judge Francis D. Winston and a jury, at September Term, 1902, of the Superior Court of Martin County. From a judgment for the plaintiffs, the defendant appealed.</p>

Action by D. H. Harris, administrator of Obra Denton, against the Atlantic Coast Line Railroad Company heard by Judge Francis D. Winston, at October Term, 1902, .of the Superior Court of Edgecombe County. From a judgment for the plaintiff, the defendant appealed.

ActioN by M. A. Leigh against the Garysburg Manufacturing Company, heard by Judge Q-eorge H. Brown and a jury, at April Term, 1902, of the Superior Court of Noeth-ampton County. From a judgment for the plaintiff, the defendant appealed.

Action by T. N. Harrison against Paul Garrett, beard by Judge Francis D. Winsion and a jury, at August Term, 1901, of the Superior Court of Halifax County. From a judgment for the defendant, the plaintiff appealed.

<p>1. EVIDENCE' — Estates—Title—Possession.</p> <p>In an action for damages to land, the title being in issue, the plaintiff may show possession for more than 30 years under a deed which is in evidence, and the question of title should be left to the jury.</p> <p>2. EVIDENCE — Proof—Estates—Title.</p> <p>In an action brought for damages to land, there being no adverse claimant, and where the proof of ownership is only to identify plaintiff as the person entitled to sue, he is not bound by the í same strict rules of proof as where the recovery of the land is the object of the action.</p> <p>3. EVIDENCE— Canals.</p> <p>In an action for injuries to land by changing a canal it is not cojn-petent to show the effect of the change on the land of an adjoining landowner.</p> <p>4. EVIDENCE' — •Competency—Canals.</p> <p>In an action for injuries to land by changing a canal, evidence that the superintendent of the canal told the plaintiff that he could not drain into the canal unless he sold some land to the defendant, is competent.</p>

ActioN by G. W. Norris against the Lake Drummond Canal & Water Company, heard by Judge M. U. Justice and a jury, at December (Special) Term, 1902, of the Superior Court of CaMdeN County. From a judgment for the plaintiff, the defendant appealed.

<p>(For head-notes and facts as to these two cases see Pinnix v. Canal Co. and Bullock v. Canal Co., at this term.)</p> <p>(For head-notes and facts see cases of Pinnixv. Canal Co. and Bullock v. Canal Co., at this term.)</p>

Action by S. W. Boyd against the Roanoke Railroad & Lumber Company, heard by Judge George A. Jones and a jury, at February Term, 1902, of the Superior Court of Beaueoet County. From a judgment for the plaintiff the defendant appealed.

ActioN by K. W. Turner against Elizabeth Davis and others, heard by Judge George A. Jones, at March Term, 1902, of the Superior Court of Pasquotank County. From an order refusing to grant a new trial on the ground of newly discovered evidence, the plaintiff appealed.

<p>1. WILLS — Revocation—Presumptions.</p> <p>Where a will, having been in the possession of the testator, has the signature of the testator erased, it is prima facie evidence of its revocation.</p> <p>2. EVIDENCE — Corroborative Evidence — Wills.</p> <p>Where a witness testifies that a maker of a will told him that he (the witness) would not have to qualify as executor, as he had destroyed his will appointing witness executor, such witness may state in corroboration of this evidence that he did not qualify because of this statement to him by the testator.</p>

<p>This is a petition to rehear in part this case, which is reported in 131 N. C., 241.</p>

ActioN by W. R. Sykes against Bessie Boone and W. H. Britton, heard by Judge George H. Brown and a jury, at February Term, 1902, of the Superior Court of NORTHAMPTON County. From a judgment for the defendants, the plaintiffs appealed.

<p>1. COUNTIES — County Commissioners — Contracts—Attorney and Client.</p> <p>A hoard of county commissioners may employ an attorney for the term for which it is elected.</p> <p>2. EVIDENCE — Sufficiency—Demurrer—Non-Suit—Counties.</p> <p>In this action against a board of county commissioners by an attorney for legal services, the evidence, on demurrer by the defendant, is sufficient to be submitted to the jury.</p>

ActioN by Lucy E. Havens against the Bank of Tarboro and others, heard by Judge Francis D. Winston at October Term, 1902, of the Superior Court of Edgecombe County. This action was brought by the plaintiff to recover the value of a certificate for thirteen shares of stock which she alleged was issued by the defendant to James G. Mehegan, and which she received from him as collateral security for a loan of $500.

ActioN by S. Madora Deans and otters against Albert Cray, beard by Judge Francis D. Winston and a jury, at November Term, 1902, of the Superior Court of Nash County. From a judgment for the defendant, the plaintiffs appealed.

<p>1. INJUNCTIONS — Receivers—Banks and Banking.</p> <p>Where a resident creditor of an insolvent bank brings suit in another state, which hinders the collection of the assets of the bank by the receiver, the receiver is entitled to enjoin the creditor for the prosecution of such suit.</p> <p>2. BANNS AND BANKING — Drafts—Election of Remedies — Fraud.</p> <p>Where an insolvent bank discounts drafts, such insolvency being known to the officers, and the drawer of the drafts sues to recover the amount of said drafts placed on deposit, he could not in another suit disaffirm the discount for fraud.</p> <p>3. INJUNCTIONS — Receivers—Remedy at Law.</p> <p>In a suit by a receiver for an injunction to restrain a resident credi-itor from maintaining a suit in another state against the corporation for which the receiver had been appointed, it is no defense, that the plaintiff had an adequate remedy at law.</p> <p>Clark, C. J., and Douglas, J., dissenting.</p>

A special proceeding for the appointment of a guardian of J. T. Anderson, beard by Judge R. B. Bryan, at September Term, 1902, of the Superior Court of PeNder County. From a judgment appointing a guardian, J. T. Anderson, through his attorneys, appealed.

Action by the Cape Fear and Northern Railroad Company, against J. E. P. Stewart and others, heard by Judge W. 8. O’B. Robinson, at Chambers, at Goldsboro, N. C., November 25, 1902. From a judgment for the plaintiff, the defendants' appealed.

Action by James Prevatt against Jackson Harrelson and others, heard by Judge W. 8. O’B. Robinson and a jury, at -- Term, 1902, of the Superior Court of Columbus County. From a judgment for the plaintiff, the defendants appealed.

ActioN by Emory Willoughby against M. A. Stevens, heard by Judge W. S. O’B. Robinson and a jury, at May Term, 1902, of the Superior Court of Robeson County. From a judgment for the defendant, the plaintiff appealed.

<p>ActioN by Annie D. Pasterfield and husband against J. H. Sawyer, heard by Judge: George A. Jones, at May Term, 1902, of the Superior Court of PasquotANK County. From a judgment of non-suit the plaintiffs appealed.</p>

<p>ActioN by Alexander Burnett, administrator, against the Atlantic Coast Line Railway Company, heard by Judge Oliver II. Allen, at October Term, 1902, of the Superior Court of Cumberland County. From the sustaining of a demurrer to the complaint the plaintiff appealed.</p>

ActioN by B. D. Austin, administrator of W. H. Austin, against J. K. P. Austin and others, heard by Judge T. A. McNeill and a jury, at March Term, 1902, of the Superior Court of UnioN County. From a judgment for the plaintiff, the defendants appealed.

ActioN by J. E. Efird against the Western Union Telegraph Company, beard by Judge W. S. O’B. Robinson and a jury, at October Term, 1902, of the Superior Court of UNION County. issues. 1. Was the defendant guilty of negligence in the transmission and delivery of the dispatch, as alleged in the complaint ? Answer: “Yes.” 2. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer ? Answer: “Yes.” 3.

ActioN by J. Shute & Son against the Dickson Cotton Mill, beard by Judge W. S. O’B. Robinson and a jury, at August Term, 1902, of the Superior Court of UNION County. From a judgment for the plaintiff, the defendant appealed.

<p>USURY — Interest—Payments—The Code, Sec. 3836.</p> <p>Usury must be paid in money or money’s worth before an action can be maintained therefor, and the renewal of the note given for the usury does not amount to payment.</p>

<p>Action by A. E. Hendley against J. P. McIntyre, heard by Judge W. 8. O’B. Robinson and a jury, at October Term, 1902, of the Superior Court of ANSON County. From a judgment for the plaintiff, McSwain, surety, appealed.</p>

Action by Charles Huntley against J. W. Hasty, heard by Judge Walter H. Neal and a jury, at October Term, 1902, of the Superior Court of Union County. From an order reversing the refusal of the clerk to grant an execution against the person, the defendant appealed.

ActioN by Samuel Hamrick against the Balfour Quarry Company, beard by Judge W. S. O’B. Robinson and a jury, at October Term, 1902, of the Superior Court of Union County. From a judgment for the plaintiff, the defendant appealed.

<p>INSURANCE — Fire Insurance — Assessments—Waiver—Notice—Acts (Private) 1898, Ch. 843 — Acts (Private) 1895, Ch. 15.</p> <p>An acceptance of an overdue assessment by a Are insurance company, after the property is burned, the company having notice thereof, is a waiver of the forfeiture of the policy.</p>

<p>NEGLIGENCE — Trespasser—Hailraads.</p> <p>A person who goes upon the train with his family, after giving notice to the conductor thereof, is not a trespasser, and if he is injured in alighting from the train by the negligence of the railroad company, the company is liable.</p>

<p>ActioN by Gr. W. Clegg against the Southern Railway Company, heard by Judge Thos. A. McNeill and a jury, at January Term, 1903, of the Superior Court of Iredell County. From a judgment for-the plaintiff, the defendant appealed.</p>

<p>1. PLEADINGS — Time to Plead — Answer—Trial Judge — Discretion—The Code, See. 278.</p> <p>It is discretionary with the trial court to allow the defendant to file an answer at the trial term.</p> <p>2. EVIDENCE — Incompetent—Withdrawal from the Jury — Instructions.</p> <p>The erroneous admission of evidence is cured by its withdrawal from the jury.</p> <p>3. EVIDENCE — Judgments—Executions—•Insolvency—■ fraudulent Oonvey-ances.</p> <p>In an action to set aside a fraudulent conveyance, a judgment and a return of execution thereon unsatisfied is strong but not conclusive evidence of insolvency.</p>

Action submitted, without controversy between D. J. Williams and the Commissioners of Iredell County, beard by Judge Thos. A. McNeill, at January Term, 1903, of the Superior Court of Iebdell County. From a judgment for the defendant the plaintiff appealed.

<p>ActioN by V. Mauney against E. B. Hamilton and others, heard by Judge Walter I~I. Neal, and a jury, at December Term, 1902, of the Superior Court of Stanly County. From a judgment for the defendant, but from a refusal to submit issues to his counterclaim, he appealed.</p>

<p>Action by G. C. Graves against A. C. Currie, beard by Judge Thomas J. Shaw and a jury, at April Term, 1902, of the Superior Court of Montgomery County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>JUDGMENTS — Setting Aside Judgments — Excusable Neglect — The Code, Sec. m.</p> <p>The facts set forth in the opinion in this case do not constitute sufficient ground upon which to set aside a judgment for excusable neglect.</p>

ActioN by Lillian Bright against the Western Union Telegraph Company, heard by Judge Thomas A. McNeill and a jury, at September Term, 1902, of the Superior Court of AlamaNCe County. This action was brought by the plaintiff to recover damages for the defendant’s negligent failure to deliver a telegram.

ActioN by Edna Wright against the Southern Railway Company, heard by Judge Thomas 4- McNeill and a jury, at November Term, 1902, of the Superior Court of Granville County. From a-judgment for the plaintiff, the defendant appealed.

ActioN by the Fidelity & Deposit Company of Maryland . against S. A. Fleming, heard by Judge Walter H. Neal, at February Term, 1902, of the Superior Court of Granville County. This action was brought by the plaintiff to recover of the defendant the sum of $135, the amount of the premium alleged to be due the plaintiff for becoming surety on his bond as sheriff, and was tried in the court below upon the following statement of facts, to which the parties agreed: 1.

ActioN by W. R Denny against the North Carolina Railroad Company, heard by Judge Walter H. Neal and a jury, at February Term, 1902, of the Superior Court of Gutleoed County. From a judgment of dismissal as of non-suit, the plaintiff appealed.

ActioN by W. F. Bell and others against J. B. Ooncb, beard by Judge Francis D. Winston and a jury, at May (Special) Term, 1902, of the Superior Court of Wilees County. From a judgment for the plaintiffs the defendants appealed.

Action by A. Mitchell against Erancis and J acob Mitchell, administrators of William Mitchell and others, heard by Judge H. B. Stwrbuck and a jury, at August Term, 1901, of the Superior Court of Sueey County. From a judgment for the defendants, the plaintiffs appealed.

Action by N. H. Robinett against C. L. Hamby, heard by Judge H. B. Btarbuck and a jury, at October Term, 1901, of the Superior Court of Wilkes County. From a judgment for the defendant, the plaintiff appealed.

Action by M. L. Patterson against R. C. Freeman, administrator of W. A. Jones and others, heard by Judge H. B. Bryan and a jury, at Spring Term, 1901, of the Superior Court of Sunny County. From a judgment for the defendants, the plaintiff appealed.

<p>ActioN by Thomas Murphy and wife against Clarence Murphy and others, heard by Judge Thomas J. Shaw and a jury, at September Term, 1902, of the Superior Court of RowaN County. From a judgment for the defendants, the plaintiffs appealed.</p>

Action by T. T. Smith, Jr., against W. T. Browne, beard by Judge Thomas A. McNeill and a jury, at October Term, 1902, of the Superior Court of Guileord County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by R. A. Kelly against the Durham Traction. Company, beard by .Judge W. JR. Allen and a jury, at January Term, 1903, of the Superior Court- of Dubiiam County.</p> <p>This is an action brought to recover damages for false imprisonment and malicious prosecution. The plaintiff was a passenger on one of the street cars owned and operated by the defendant and had paid his fare to the conductor, Eu-banks. There seem to have been two conductors upon the car, Eubanks and Brock, and also the general manager, Butler. The conductor Eubanks again demanded the fare from the plaintiff, who refused to pay on tire ground that he had already paid. Eubanks then went to the front of the platform and asked some one whether he should stop. He was answered “No.” When the car reached Five Points the plaintiff was arrested by a policeman and taken to the police headquarters, where he was released on bail after a short detention. Before being taken from the car the plaintiff demanded the cause of his arrest, and upon being informed that it was because he had not paid his fare, stated that he had paid it, but offered to pay it again to prevent any trouble. The conductor Brock said: “Too lateand the plaintiff was taken off the car. The witness McGruirk testifies that “Eu-banks told the policeman: 'There they are,’ pointing to Kelly (the plaintiff), Ray and Griffith, saying, ‘Take them/ and the policeman arrested them.”</p> <p>The defendant does not appear to have introduced any evidence, and offered no objection to the plaintiff’s testimony. It is admitted that the plaintiff was tried before the mayor of the city of Durham for violation of Section 3, Chapter 16, of the ordinances of the said city, which reads as follows: “Any person who shall get upon a street car for the purpose of defrauding the owners thereof of the fare, shall upon conviction be fined ten dollars.”</p> <p>It is also admitted that the plaintiff was acquitted and discharged.</p> <p>The issues and answers thereto are as follows:</p> <p>“1. Was the plaintiff illegally arrested, as alleged in complaint?” Ans. “Yes.”</p> <p>“2. If so, did the defendant procure the same?” Ans. “Yes.”</p> <p>“3. Was the plaintiff prosecuted by the defendant for the violation of the town ordinance before the mayor of the city of Durham, as alleged in the complaint?” Ans. “Yes.”</p> <p>“4. If so, was the prosecution on the part of the defendant without probable cause?” Ans. “Yes.”</p> <p>“5. If so, was the prosecution with malice?” An3. “Yes.”</p> <p>“6. What damage, if any, has the plaintiff sustained ?” Ans. “$50Q.”</p> <p>From a judgment for the plaintiff, the defendant appealed.</p>

<p>ActioN by Sarah Johnson and another against W. B. Andrews, heard by Judge W. B. Allen at January Term, 1903, of the Superior Court of Dubham County.</p> <p>This action was heard in the Superior Court upon the following facts found by the Court:</p> <p>“1. This was an action begun by the plaintiff against the defendant before D. C. Gunter, Justice of the Peace, by issuing a summons March 24th, 1902, returnable March 29th, 1902. On the return day thereof, to-wit, March 29th, 1902, the Justice heard said action, both plaintiff and defendant being represented by counsel, and rendered a judgment against the defendant for the full amount of his claim, to-wit, $151.00.</p> <p>2. From the judgment the defendant gave notice of appeal to the Superior Court, said notice of appeal being given in open court in the presence of the plaintiff and bis counsel.</p> <p>3. On the 5th day of April, 1902, the defendant paid the Justice bis fee of 50 cents for the transcript on appeal, and thereupon the Justice on April 5tb, 1902, made out bis return to the notice of appeal and delivered the same to C. B. Green, Clerk of the Superior Court, and the defendant at the same time paid to C. B. Green 50 cents, being bis fee for docketing the appeal.</p> <p>4. The next term of the Superior Court of Durham county, after the appeal from the Justice, began on the 12th day of May, 1902, as provided in Public Laws of 1901, Chapter 28, Section 2, and another term on the 25th day of August, 1902, as provided in said act; that during the month of September, beginning September 29th, there was a term of the Superior Court for the County of Durham for the trial of civil cases only.</p> <p>5. At the May Criminal Term the defendant through bis counsel, J. S. Manning, asked the Clerk of the Superior Court if bis appeal was docketed, and the Clerk informed him that he bad docketed said appeal.</p> <p>6. After the calendar was arranged for September Term, to-wit, about the 15th of September, 1902, but the same day, appellant’s counsel examined the civil issue docket and found that said appeal did not appear on said docket and thereupon be requested the Clerk to enter and the Clerk did enter the case on said civil issue docket for September Term and the case was put on the printed calendar for trial by the Clerk for said term, and the appeal bad not before that time been entered upon the docket.</p> <p>7. The Clerk did not make out any civil issue docket for May Term or August Term of the Superior Court, but did make out an appearance docket for each of said terms, entering thereon such actions as had been brought to said respective terms, and said Clerk stated in open Court that such had been his custom prior to said September Term, 1902.</p> <p>8.. At the said September Term, 1902, plaintiff entered a special appearance and moved to dismiss the defendant’s appeal for the reason that said appeal had not been docketed according to law, and defendant moved for permission to docket same, if the Court should be of the opinion that the Clerk had failed to docket the same; this motion was continued without prejudice and heard at January Term, 1903.</p> <p>9. Upon the foregoing facts, the Court was of the opinion that said appeal was not docketed according to law and that he had no discretion in the matter and allowed the motion of plaintiff and dismissed the appeal. The motion to dismiss was allowed and motion to docket refused as matters of law and not in the exercise of discretion. Erom a judgment dismissing the appeal, the defendant appealed.”</p>

Action by Eletcber Lewis, by bis next friend, against the Norfolk and Western Railway Company, heard by Judge Thomas A. McNeill and a jury, at November Term, 1902, of the Superior Court of Person County. From a judgment for the plaintiff, the defendant appealed.

ActioN by G. W. Davison and O. E. Baker, trustees, against N. A. Gregory, Mrs. Pattie McCrary, and others, heard by Judge Thomas A. McNeill and a jury, at April Term, 1902, of the Superior Court of Granville County. From the judgment, Mrs. Pattie McCrary appealed.

<p>Action by Wesley Coble against D. R. Huffines, heard by Judge Walter H. Neal and a jury, at February Term, 1902, of the Superior Court of Guileobd County. From a judgment of nonsuit the plaintiff appealed.</p>

<p>Action by T. E. Williford against P. S. Bailey, beard by Judge W. 8. 0JB. Robinson and a jury, at October Term, 1902, of the Superior Oourt of Union County. From a judgment for the plaintiff the defendant appealed.</p>

<p>ActioN by Mary A. E. Barringer against the Virginia Trust Company, beard by Judge W. 8. O'B. Robinson, at November Term, 1902, of the Superior Court of Chatham County. From a judgment of non-suit, the plaintiff appealed.</p>

Action by the Kinston & Carolina Railroad Company against I. and S. Stroud, heard by Judge IS. B. Jones, at January (Special) Term, 1903, of the Superior Court of Lenoir County. From a judgment for the defendants, the plaintiff appealed.

<p>Petition to rehear this case, reported in 130 N. C., 62.</p>

Action by II. N. Pbarr, administrator, against the Atlanta & Charlotte Air Line Railway Company, beard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of Mecklenburg County. From a judgment for the plaintiff, the defendant appealed.

Agtion by the General Eire Extinguisher Company against the Mooresville Cotton Mills, beard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of Mecklenburg County. From a judgment of. non-suit, the plaintiff appealed.

ActioN by I. A. Alexander against the Cannon Manufacturing Company, heard by Judge Thomas J. Shaw, at January Term, 1903, of the Superior Court of Cabaerus County. EVIDENCE AS TAKEN KROM THE Judge's NOTES. Ira A. Alexander, the plaintiff, testified as follows: “In May of last year I worked at defendant’s bleachery; was employed by Mr. Hawthorne, the superintendent.

Action by Malloy & Boggs against the Lincoln Cotton Mills, heard by Judge A. L. Coble and a jury, at September Term, 1902, of the Superior Court of Lincoln County. From a judgment for the plaintiffs, the defendant appealed.

Action by I. N. Davis against Emma Morris and husband, beard by Judge A. L. Qoble and a jury, at September Term, 1902, of tbe Superior Court of Gaston County. From a judgment for tbe defendants, tbe plaintiff appealed.

<p>NEGLIGENCE — Damages—Accidents—Bailroads—Personal Injuries.</p> <p>No act or omission, though resulting in damage, can he deemed actionable negligence unless the one responsible could, by the exercise of ordinary care, under all the circumstances, have foreseen that it might result in damage to some one.</p>

ActioN by 0. B. Bumgardner against the Southern Railway Company, heard by Judge Walter H. Neal and a jury; at August Term, 1902, of the Superior Court of Iredell County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by the Seaboard Air Line Railway Company against Walter L. Main and another, beard by Judge W. B. Allen, at January Term, 1903, of the Superior Court of Durham County.</p> <p>The plaintiff brought this action for the recovery of $750 alleged to be due under the provisions of a contract for the transportation of defendant’s circus outfit and equipment by the plaintiff. By the contract the defendant undertook and agreed, among other things, to indemnify the plaintiff and save it harmless from loss and damage incurred by reason of any injuries to defendant’s employees. The case was heard in the court below upon demurrer to the complaint, and is before us upon an appeal from a judgment overruling the same. It will be necessary for a clear understanding of the case and the questions presented to give an outline of the pleadings. The plaintiff alleges that, being a corporation and a common carrier of freight and passengers it entered into a contract with the defendant as follows:</p> <p>This indenture made at Atlanta, Georgia, on the 7th day of October, 1902, A. D., between the Seaboard Air Line Railway Company, party of the first part, hereinafter styled the Railway Company, and the Walter L. Main’s Shows, party of the second part, hereinafter styled the Circus Company.</p> <p>Witnesseth, That for and in consideration of the stipulations and agreements hereinafter set forth, the Railway Company agrees:</p> <p>First. To furnish the necessary motive power, conductors, enginemen and other trainmen to haul four passenger cars, seven stock-cars and nine platform cars (to be furnished by the said Circus Company), to receive the said cars loaded from Central of Georgia Railway at Athens, Georgia, and to transport said cars and their contents, provided their combined actual gross weight does not exceed . tons of 2000 pounds, from Atlanta, Georgia, to Wadesboro, N. C., as follows: To leave Athens, Ga., on October 17th about 2:00 a. m. for Elberton, G'a., etc.</p> <p>Second. That should it become necessary to change the above routes or dates, the Circus Company shall have the privilege of making such change by giving the Railway Company ten (10) days notice in writing.</p> <p>Third. To furnish side tracks necessary for the unloading and reloading at each point of destination named therein, to the extent of its existing track room, less such space as may be necessary for the proper conduct of their freight and passenger business, and the space necessary for the free and safe passage of their trains at such points of destination, and also to furnish an engine for the proper placing of cars during the unloading and reloading of said Circus Company’s cars.</p> <p>Fourth. That so far as convenient and practicable to do so, it will limit the speed of trains carrying any or all of the Circus Company’s cars to fifteen (15) miles per hour.</p> <p>Fifth. To furnish car orders for free transportation in its local passenger or accommodation train and by the route named herein, two advertising cars, and to furnish passes for the free transportation on all passenger trains for the Circus Company’s bill posters (in actual service), baggagemen, and advertising agents with baggage and advertising material.</p> <p>Sixth. To arrive, so far as practicable, at each destination before 7 o’clock a. m. on the day of exhibition.</p> <p>In consideration whereof, the Circus Company binds itself by these presents—</p> <p>First. To pay to the said Railway Company the sum of Seventeen Hundred Hollars ($1700.00), in advance as follows :</p> <p>At Athens, Ga., $283.34; at Elberton, Ga., $ 283.34, etc.</p> <p>Second. To release the said Railway Company from all liability for loss or damage to its property, and to hold the said Railway Company harmless for any damage to the persons of its officers, agents, or employees which is not the direct result of gross negligence on the part of the officers, agents, ox employees of the said. Railway Company.</p> <p>Third. To release the said Railway Company from all liability for loss or damage resulting from the said Railway Company’s failure to make any or all of the runs provided for herein, or from the failure to- make any or all of said runs within the prescribed time, when said failure is due to any accident which is not the result of gross negligence on the part of said Railway Company.</p> <p>Fourth. To release said Railway Company from all liability for loss or damage by delays due to insufficient side track room at any point of destination.</p> <p>Fifth. That the said Railway Company shall have the right to haul any or all of the cars of said Circus Company in trains with other freight.</p> <p>Sixth. That the Railway Company shall not be required to run more than seventy-five (15) miles from one point of exhibition within the usual time of eight hours, or between the hours of 11 p. m. and 7 a. m., although there may be no accident or unusual delay.</p> <p>Seventh. That the said Railway Company shall have the right to make any repairs to the equipment of the Circus Company for which it may be legally liable at such place and time within ninety (90) days, as the said Railway Company may elect, the said Railway Company agreeing that all such repairs shall be made with as reasonable dispatch as possible.</p> <p>Eight. That the said Railway Company shall have the right to rigidly inspect the cars of said Circus Company, and to reject any or all of said cars until said Circus Company has made such repairs, alterations, or additions as may be in the opinion of the said Railway Company necessary for the prompt and safe transportation of such cars over its line.</p> <p>Ninth. That all necessary repairs to the cars of said Circus Company and the renewal of trucks, or other parts, when the result of ordinary wear, shall be at the expense of the said Circus Company.</p> <p>Tenth. That if the said Railway Company should, because of its own negligence, be held responsible for the loss or destruction of any animals transported by it under this contract, said animals shall be charged for at their actual value, not to exceed the following maximum values, to-wit:</p> <p>Animals and values here omitted.</p> <p>Eleventh. That the said Railway Company shall not be held liable for any injury, fatal or otherwise, <to any proprietor, agent, or employee for an amount greater than Fifty Dollars ($50.00), for any one person, and that if the said Railway Company should be held liable for a greater amount to any employee, or to his personal representative, the said Circus Company then binds itself to pay such excess to said Railway Company.</p> <p>Twelfth. That if it, (the Circus Company) should fail to fulfill the terms of this contract, or to make the number of runs stipulated, the said Railway Company may, at its option, charge for and collect the full amount of compensation provided for under the first section of the second portion hereof.</p> <p>In Testimony Whereof, the said Parties have hereunto set their hands the day and year above written.</p> <p>Seaboard Air Lute Railway Company,</p> <p>By R. I. Cheatham.</p> <p>The WalteR L. Maih Shows,</p> <p>By Ed. C. Knuff.</p> <p>Witness: C. S. Allen, Jr.</p> <p>The rate charged the defendant was much lower than the usual rates for like services, and was given in consideration of the stipulation for indemnity in said contract, and that said stipulations were customary in such cases.</p> <p>While the contract was in force and the cars containing the circus outfit and equipment were on a side track at El-berton, Ga., Oct. 17, 1902, II. Allen, an agent and employee of the defendant, and one of the jDarties referred to in section 11 of the contact, was in a “regular passenger car on the siding,” and was injured by a collision which was caused by the plaintiff’s negligence, and that by reason of said injury he has “lost in dollars and cents more than $750.”; that Allen demanded of the plaintiff compensation for his said injuries and threatened to sue it for the same, and the plaintiff thereupon notified the defendant, who repudiated the contract and refused to pay anything. The plaintiff thereafter com [(re-mised and settled with Allen for the sum of $750 which it paid to him and for which it took a receipt, and a release, dated October, 10, 1902, from any and all other liability on account of said injuries, and said sum of $750 the plaintiff alleges is “less than the injury which Allen sustained and less than he could or would have recovered before a jury.” The plaintiff demands judgment for $700 and the costs. The defendant demurred upon the following grounds:</p> <p>1. Because the release from Allen is dated October 10, 1902 and the injuries are alleged to have occurred on October 18, 1902.</p> <p>2. Because, while it is alleged that Allen was on a “regular passenger car on the siding,” it does not appear that this was one of the four passenger cars furnished by the defendant.</p> <p>3. It appears from the contract that the plaintiff did not stand, towards the defendant and its agents and employees, as a common carrier with the responsibilities and liabilities incident to that relation, but that it stood in the relation of a private carrier under a special contract for hire and subject only to the liabilities incident thereto, and Allen therefore had no cause of action against the plaintiff, as his right to be on tbe train arose ont of tbe special contract, be being one of tbe employees and servants of tbe defendant. It follows tbat, as Allen bad no cause of. action, tbe payment to bim by tbe plaintiff was voluntary and imposed no duty on tbe defendant to reimburse tbe plaintiff.</p> <p>4. If tbe defendant is liable to tbe plaintiff .at all, there can be no recovery under section 11 of tbe contract before there has been an actual adjudication by a court of competent jurisdiction tbat the plaintiff is liable to Allen, tbe person injured.</p> <p>5. Tbat tbe plaintiff’s cause of action was for money paid t0.tb£ sheriff for tbe keep of tbe borses seized under tbe attachment is dependent upon its recovery on tbe principal cause of action, and was improperly joined therewith, and also tbat it accrued since this action commenced.</p> <p>From a judgment overruling a demurrer to tbe complaint, tbe defendant appealed.</p>

Action by M. L. Hinson, against the Postal Telegraph Cable Company, beard by Judge W. B. Allen and a jury, at January Term, 1903, of the Superior Court of Durham County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by Nancy E. Sprinkle against J. M. Wellborn and a jury, at May (Special) Term, 1902, of the Superior Court of WilKes County. From a judgment for the defendant, the plaintiff appealed.</p>

Action by Martha W. Lockhart and others against Lizzie Covington and others, beard by Judge O. II. Allen, at February Term, 1903, of the Superior Court of UNION County. From the judgment both sides appealed, other than Lizzie Covington.

Action by N. A. McLeod against G. W. Graham, administrator, beard by Judge Charles M. Coolee, at February Term, 1903, of the Superior Court of Cumbeeland County. From a judgment setting aside a judgment for the plaintiff, be appealed.

ActioN by the Trustees of the Baptist Female University and others against E. B. Borden, executor of W. T. Fair-cloth, and others, heard by Judge W. S. O’B. Robinson, at December Term, 1902, of the Superior Court of Watne County. From a judgment determining the rights of the parties, both sides appeal.

<p>ActioN by W. H. McNeill against the Durham & Charlotte Railroad Company, heard by Judge O. H. Allen and a jury, at January Term, 1903, of the Superior Court of Moobe County. From a judgment for the plaintiff the defendant appealed.</p>

<p>ActioN by Shepard’s Point Land Company against the Atlantic Hotel, heard by Judge George H. Brown, at September Term, 1902, of the Superior Court of Carteret County. From a judgment for the plaintiff the defendant appealed.</p>

ActioN by J. M. Grier against the Mutual Life Insurance Company of New York, heard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of Mecklenburg County. From a judgment for the plaintiff, the defendant appealed.

ActioN by E. B. Springs and others against J. M. Scott and others, heard by Judge Thomas J. Shaw, at March Term, 1903, of the Superior Court of Mecelenbubg County. From a judgment overruling the demurrer, the defendants appealed.

Action by J. E. Gordon against the Seaboard Air Line Railway Company, heard by Judge W. S. O’B. Robinson and a jury, at October Term, 1902, of the Superior Court of UNION County. This is an action for the recovery of damages for persona] injuries received by the plaintiff in attempting to alight from a moving train at the invitation of the conductor, as alleged by the plaintiff.

ActioN by Frank Hitch and others against the Commissioners of Edgecombe County, heard by Judge Francis D. Winston, at October Term, 1902, of the Superior Court of Edgecombe County. It is only necessary, in order to' understand the questions presented, that, the second cause of action stated in the complaint and the demurrer thereto' should be set out, as the first cause of action was abandoned in this court.

<p>PetitioN to rehear this case, reported in 131 N. C., 324. Petition granted.</p>

Action by H. A. McEntyre against the Levi Cotton Mills Company, heard by Judge B. B. Jones, and a jury, at March Term, 1903, of the. Superior Court of Rutherford County. From a judgment for the plaintiff, the defendant appealed.

<p>1. JUDGMENTS — Estoppel—Executors and Administrators — Judicial Sales —Debts of Decedents — Collateral Attach.</p> <p>Where, in an action to sell land for assets, the administrator alleges that certain real property belonged to the deceased, and a party having a deed to the same, being a party to the action, fails to set up title thereto, he is estopped by the order of sale and de cree of confirmation.</p> <p>2. JUDGMENTS — Irregularity—Judicial Sales.</p> <p>The recital in a decree of confirmation of a sale of land that the matter in controversy was heard before the date set for hearing by consent of parties is conclusive of that fact.</p>

Action by Nannie Gross and others against John Smith, heard by Judge Francis D. Winston and a jury, at November (Special) Term, 1902, of the Superior Court of Rutheb-BORD County. The plaintiffs brought this action for the recovery of a cow which they allege to be in the possession of the defendant Smith. It appears that the cow was sold by the defendant, W. E. Snider, as administrator of J. B. Snider, and bought by John Smith his co-defendant.

AotioN by T. C. McBrayer against R. R. Haynes, heard by Judge E. B. Jones and a jury, at March Term, 1903, of the Superior Court of Ruthekfoed County. From a judgment for the plaintiff, the defendant appealed.

<p>LIMITATIONS OF ACTIONS — Statute of Limitations — Pleadings—Sufficiency — The Code, Sec. 138.</p> <p>An averment that more than three years have elapsed since the date of the alleged promise before the action was brought and the services rendered as alleged is a sufficient plea of the statute of limitations.</p>

<p>1. PLEADINGS — Demurrer—Evidence—Seduction.</p> <p>A demurrer to the evidence of the plaintiff admits the truth thereof and any reasonable inference that may be drawn therefrom.</p> <p>2. SEDUCTION — Evidence—Loss of Services — Damages—The Code, See. 288, Subsec. 2.</p> <p>It is not necessary in order for a parent to maintain an action for the seduction of his daughter that he show actual loss of services.</p> <p>Concurring opinion by Clark, C. J.</p>

<p>1. COVENANTS— Warranty — Deeds— Or antee— Grantor.</p> <p>A covenant of warranty in a deed inures to the benefit of the as-signee of the grantee, though the word assign is not used in the warranty.</p> <p>2. COVENANTS— Warranty — Deeds—Mortgages—-Grantee—Grantor.</p> <p>The reconveyance of land by a mortgage by the grantee to grantor does not extinguish the covenant of warranty in the deed, and a purchaser at a sale under the mortgage is protected by the covenant in the original deed.</p> <p>3. LIMITATIONS OF ACTIONS— Covenants — Warranty—Deeds.</p> <p>The statute of limitations does not begin to run on a breach of covenant of warranty in a deed for land until after eviction.</p> <p>4. EVIDENCE — Covenants— Warranty — Deeds—Eviction—Ouster.</p> <p>A judgment for possession and profits in favor of a prior grantee from the common source of title is a sufficient eviction to entitle a person to sue for breach of a warranty of title in the common grantor’s deed, under which plaintiff claimed.</p> <p>5. ATTORNEY AND CLIENT — Fees—Covenants—Warranty — Notice— Eviction.</p> <p>Where a grantee in a warranty deed is evicted, and did not give the grantor notice of the suit, he cannot in an action on the breach of warranty recover of the grantor counsel fees necessary for defending the title.</p> <p>6. COVENANTS— Warranty — -Deeds-—-Executors and Administrators — Iidrs.</p> <p>In an action by the assignee of a grantee in a warranty deed against the administrator of the grantor, the assignee may recover though no real assets descended to the heirs of the grantor.</p>

Action by the Carolina & Northwestern Railway Company against the Pennearden Lumber and Manufacturing Company, heard by Judge B. F. Long, at February Term, 1903, of the Superior Court of Caldwell County. From a judgment for the plaintiff, the defendant appealed.

<p>Action by R. M. Harrill, as administrator of Jake Met-calf, against the South Carolina & Georgia Extension Railway Company of North Carolina, heard by Judge Francis D. Winston and a jury, at June (Special) Term, 1902, of the Superior Court of RuthebKObd County. From a judgment for the plaintiff, the defendant appealed.</p>

Action by P. T. Menzel and others against C. E. & W. E. Plinton beard by Judge M. H. Justice, at December (Special) Term, 1902, of the Superior Court of Camden County. From a judgment for the defendants, the plaintiffs appealed.

<p>Action by Serena M. Caudle and H. A. Mullis against John S. Long,.beard by Judge W. S. O’B. JR-obinson at August Term, 1902, of the Superior Court of UNION County. Erom a judgment of non-suit the plaintiff appealed.</p>

Action by J. O. Morrow and wife against G. H. P. Cole and others heard by Judge W. B. Council and a jury, at May Term, 1902, of the Superior Court of HendersoN County. Erom a judgment for the plaintiffs, the defendants appealed. „

Action by W. C. Eisber against W. J. Owens and others, beard by Judge Frederick Moore and a jury, at November Term, 1901, of the Superior Court of Tbansylvawia County. From a judgment for the defendants, the plaintiff appealed.

Action by E. H. Doggett and others against P. H. Hardin and others heard by Juclge E. B. Jones at March Term, 1903, of the Superior Court of Rutherford County. From a judgment of nonsuit, the plaintiffs appealed.

Action by J. S. L. Orr against the Southern Bell Telephone and Telegraph Company and others, heard by Judge A. L. Coble and a jury, at October Term, 1902, of the Superior Court of MboeleNbueg County. From a judgment for the plaintiff, the defendant appealed.

Action by Ella V. Bray against the John L. Roper Lumber Company, beard by Judge Francis D. Winston and a jury, at December (Special) Term, 1902, of the Superior Court of Currituck County. From a judgment for the plaintiff, the defendant appealed.

Action by I. A. Harris, administrator, against D. D. Davenport and others, beard by Judge M. E. Justice and a jury, at March Term, 1902, of the Superior Court of Buncombe County. From a judgment for the plaintiff, the defendants appealed.

Action by W. A. Hayes and wife against the United States Eire Insurance Company, heard by Judge Thomas A. McNeill and a jury, at September Term, 1902, of the Superior Court of Guilford County. From a judgment of non-suit, the plaintiffs appealed.

<p>1. TRESPASS — Damages—Injury to Property — Harmless Error.</p> <p>In an action for damages for trespass on realty, the refusal of the trial court to instruct that there was no evidence of any damage prior to the commencement of the action, is harmless error, the jury having found only nominal damages.</p> <p>2. LANDLORD AND TENANT — Parties—Trespass—Injury to Property —Acts 1895, Oh. 224 — Lease.</p> <p>A lessee may sue for injuries to his leasehold without making the lessor a party.</p> <p>3. TRESPASS — Injury to Property — Damages—Acts 1895, Oh. 224.</p> <p>In an action for damages for trespass on realty, a lessee is entitled to damages accruing up to the trial.</p>

<p>NEGLIGENCE — Contributory Negligence — Master and Servant — Railroads.</p> <p>Where an employee of a railroad company rides on the steps of a shanty car against the rules of the company, which rules he had seen, and is injured, the company is not liable, there being room for him inside the car and his duty not requiring him to be on the steps.</p>

Action by C. Gr. Maynard against the Life Insurance Company of Virginia and McRaekan, heard by Judge W. R. Allen and a jury, at February Term, 1903, of the Superior Court of Alamance County. From a judgment for the plaintiff the defendant McRaekan appealed.

<p>Petition to rehear this case, reported in 131 N. C., 485.</p>

<p>1. EyiDENCE— Witnesses — Hearsay Hvidence — JRes Oestse— Warehouseman.</p> <p>In an action against a warehouseman to recover damages for loss of goods by fire, the statement of persons some time after the fire had started, as to its origin, is not competent, it not being a part of the res gestee.</p> <p>2. EVIDENCE — Witnesses—Opinion and Evidence — Warehouseman.</p> <p>In an action against a warehouseman to recover damages for the loss of goods by fire, a witness can not testify, judging from the condition of the warehouse, how long the fire had been burning when the fire company arrived, the fire not having' originated in the warehouse.</p> <p>3 EYIDENCE — Declarations — Principal and Agent —Warehouseman— Railroads.</p> <p>In an action against a warehouseman to recover damages for the loss of goods by fire, the declarations of an agent made after the fire are not admissible.</p> <p>4. WAREHOUSEMEN — Negligence—Damages—Railroads.</p> <p>In this action against a warehouseman to recover damages for the loss of goods by fire, the evidence is not sufficient to show negligence on the part of the railroad warehouseman.</p> <p>Douglas, J. dissenting.</p>

Action by R. W. Higdon against the Western Union Telegraph Company, beard by Judge A. L. Goble and a jury, at October Term, 1902, of the Superior Court of Mecklen-burg County. Erom a judgment for the plaintiff, the defendant appealed.

<p>ActioN by Walter O. Cox against Wall & Huske, heard by Judge Thomas J. Shaw and a jury, at December Term, 1902, of the Superior Court of Eoesyth County. From a judgment for the defendants, the plaintiff appealed.</p>

ActioN by J. P. Morgan and others against J. B. Bostic and others, heard by Judge W. B. Councill and a jury, at September Term, 1902, of the Superior Court of Buncombe County. Erom a judgment for the plaintiffs, the defendants appealed.

Action by J. B. Lee and others against J. R Baird and others, beard by Judge W. B. Gouncillj at September Term, 1902, of tbe Superior Court of BuNCOMBe County. Mrs. Eliza T. Baird, late of the County of Buncombe, widow, on the 23rd of January, 1884, executed her last will and testament. The portions thereof material to the decision of this case are: Item 2.

<p>1. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS — Liens— Corporations — The Code, Sec. 685 — Banks and Banking.</p> <p>The commencement of a suit by creditors for themselves and all other creditors to set aside a fraudulent deed of assignment by a bank does not create a lien in their favor, where it does not increase the assets of the corporation.</p> <p>2. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS — Corporations — The Oode, Sec. 685 — Banks and Banking.</p> <p>An action brought by creditors of a bank within 60 days of the filing of an assignment for the benefit of creditors, to recover their debt avoids such an assignment.</p>

ActioN by Talmage Henderson against the Durham Traction Company, heard by Judge W. B. Allen and a jury, at January Term, 1903, of the Superior Court of Durham County. From a judgment for the defendant, the plaintiffs appealed.

ActioN by W. R. L. Ritchie against Frederick Fowler and others, heard by Judge M. H. Justice and a jury, at November Term, 1902, of the Superior Court of MacoN County. From a judgment for the plaintiff, the defendants appealed.

ActioN by T. T. Patton and others against M. D. Cooper and others, heard by Judge W. B. Gouncill, at Fall Term, 1902, of the Superior Court- of Transylvania County. Appeal from Councill, J., Transylvania Superior Court. By consent the judge found the facts, those material to this appeal being as follows: In November, 1896, the defendants, M. D. Cooper and W. L. Aiken, endorsed a note as sureties for the makers thereof, J. II. Zachary and M. Gr.

<p>PetitioN to rehear this case, reported in 131 N. C., 491.</p>

Action by A. A. Eeatherstone and wife against Patrick Carr and others, heard by Judge MV. B. Gouncill, at November Term, 1902, of the Superior Court of Bunoomre County. Erom a judgment for the defendants, the plaintiffs appealed.

<p>Action by O. D. Revell against John M. Thrash, heard by Judge M. If. Justice and a jury, at March Term, 1902, of the Superior Court of Buncombe County. From a judgment for the defendant, the plaintiff appealed.</p>

Action by Moses C. Cone against J. L. Hyatt and others, heard by Judge W. A. TIolce and a jury, at December Term, 1902, of the Superior Court of TaNOBt County. This action was brought by the plaintiff against the defendant to recover certain lands described in the pleadings.

<p>ActioN by Fred. Smith against the Atlanta & Charlotte Air Line Railway Company, heard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of Mecklenburg County. From a judgment for the plaintiff, the defendant appealed.</p>

<p>NEGLIGENCE— Carriers — Passengers—Personal Injuries — Nonsuit.</p> <p>The plaintiff, attempting to alight from defendant’s train, had reached the second step of the platform, when a heavy man caught hold of the car rail, swung himself up on the step, his valise striking plaintiff on the knee and injuring her. The conductor and plaintiff’s father were both standing near by. Plaintiff testified it could not reasonably have been anticipated the man was going to hit her. The conductor could have seen the man coming if he had been attending to his business. The rules of the company required conductors to giye particular attention to women and children. Under these facts a motion for nonsuit was properly granted.</p> <p>Clark, C. J., dissenting.</p>

Action by the Southern Finishing & Warehouse Company against W. R. Ozment, heard by Judge T. A. McNeill and a jury, at September Term, 1902, of the Superior Court of Guilford County. This is an action to reform a deed.

<p>Petition to rehear this case, reported in 130 N. C., 313. Petition allowed.</p>

Action by H. E. Seawell against the Carolina Central Railroad Company, heard by Judge W. 8. O’B. Bohinson and a jury, at September Term, 1902, of the' Superior Court of Moore County. the issues. 1. Was the plaintiff a passenger of the defendant company, as alleged in the complaint ? 2. Did the defendant company, through its agents and employees, assault, or aid, abet and encourage an assault, on the plaintiff, as alleged in the complaint ? 3.

<p>Petition to rehear this case, reported in 131 N. C., 569.</p>

<p>ActioN by J. H. Vickers against the City of Durham, heard by Judge T. A. McNeill, at September Term, 1902, of the Superior Court of Durham County. From a judgment dissolving a temporary injunction, the plaintiff appealed.</p>

ActioN by H. M. Ray and wife against Jacob' A. Long, beard by Judge T. A. McNeill and a jury, at September Term, 1902, of the Superior Court of AlamaNce County. From a judgment for the plaintiffs, the defendant appealed.

ActioN by Dobson & Wbitley against the Southern Railway Company, heard by Judge E. B. Jones and a jury, at February Term, 1903, of the Superior Court of McDowell County. From a judgment for the plaintiffs, the defendant appealed.

This case was heard and determined a.t September term, 1902, of this court (131 N. C., 652). It is now before us upon a petition filed by the defendant to rehear.

Action by W. R. Gwaltney and wife against the Provident Savings Life Assurance Society, beard by Judge B. F. Long and a jury, at February Term, 1903, of the Superior Court of Catawba County. From a judgment for the plaintiffs, the defendant appealed.

ActxoN by J. C. Bessent, as administrator of Eanny Scales, against tbe Southern Railway Company, heard by Judge Walter H. Neal, at March Term, 1903, of the Superior Court of EoRsyth County. This action was brought by the plaintiff to recover damages for the alleged negligent killing of the intestate by the defendant.

<p>1. CURTESY — Husband and Wife — Wills—Constitution 1868 — Married Women.</p> <p>Since the Constitution of. 1868 a married woman may by will deprive her husband of curtesy in her separate estate.</p> <p>2. DEEDS — Estoppel—Fraud—Bankruptcy.</p> <p>Where a person to defraud his creditors conveys land and after-wards becomes a voluntary bankrupt and the trustee in bankruptcy in behalf of the creditors 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 W. S. Hallyburton and wife against J. L. L. Slagle, beard by Judge W. B. Gouncill, at September Term, 1902, of the Superior Court of BuNOOmbe County. From a judgment for the plaintiffs the defendant appealed.</p>

<p>1. WARRANTY — Covenants—Beal Estate — Lex Bei Sitx — Estoppel.</p> <p>Where a covenant for title is regarded as an estoppel affecting the title, it must be governed by the law of the state in which the property is situated.</p> <p>2. WARRANTY — Covenants—Assignments.</p> <p>A covenant of warranty in a void deed is of no avail to a remote grantee, there being no assignment thereof to him.</p> <p>3. HUSBAND AND WIFE — Estoppel—Warranty—Improvements.</p> <p>A married woman who permits a grantee and subsequent grantees under a void deed from her to take possession of the land and make improvements thereon is not estopped thereby from recovering such land.</p> <p>Clarkj, C. J., dissenting.</p>

<p>EVIDENCE — Incompetent—The Code, Sec. 590 — Partnership.</p> <p>In an action for goods sold to a firm, the testimony of one partner, who admitted his liability by failing to answer that the goods were furnished by the plaintiff on the order of the firm, is not competent as against the executor of the deceased partner or as against the firm.</p> <p>Clark, C. J., dissenting.</p>

Action by W. T. Lamb against I. Littman, beard by Judge Thomas J. Shatu and a jury, at May Term, 1902, of the Superior Court of RowaN County. From a judgment for the plaintiff, the defendant appealed.

INDICTMENT against Demus - and Helen Goode, beard by Judge George A. Jones and a jury, at September Term, 1902, of the Superior Court of Northampton County. From a verdict of guilty of manslaughter and judgment thereon, the defendant Demus Goode appealed.

INDICTMENT against Vance Spivey, beard by Judge George A. J ones and a jury, at August Term, 1902, of the Superior Court of Halifax: County. From a verdict of guilty of murder in the first degree and judgment thereon, the prisoner appealed.

INDICTMENT against Ered Vick, heard by Judge W. S. O’B. Robinson and a jury, at-Term, 1902, of the Superior Court of Wayne County. From a verdict of guilty and judgment thereon, the defendant appealed.

<p>INDICTMENT against John Marsh, beard by Judge E. W. Timberlahe and a jury, at November Term, 1902, of the Superior Court of Union County, upon the following bill:</p> <p>“The jurors for the State upon their oaths present that John Marsh, late of the County of Union, on the 27th day of October in the year of our Lord one thousand nine hundred and two, with force and arms at and in’the county aforesaid, in and upon one Alice Carelocli in the peace of God and the State then and there being, unlawfully, wilfully, violently and feloniously did make and assault, and her, the said Alice Carelock, then and there unlawfully, wilfully and feloniously did ravish and carnally know against the form of the statute in such case made and provided and against the peace and dignity of the State.”</p> <p>From a verdict of guilty and judgment thereon, the prisoner appealed.</p>

INDICTMENT against Walter Barrett, beard by Judge W. 8. O’B. Robinson and a jury, at December Term, 1902, of the Superior Court of Moobe County. From a verdict of guilty of murder in the first degree, and judgment thereon, the prisoner appealed.

Indictment against John Parker, beard by Judge Thomas A. McNeill and a jury, at August Term, 1902, of the Superior Court of Durham County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against Erank May, heard by Judge Walter H. Neal and a jury, at June Term, 1902, of the Superior Court of GruiLEORD County. From a verdict of guilty and judgment thereon, the defendant appealed.

<p>1. HOMICIDE — Murder in the Second Degree — Manslaughter—Burden of Proof — Siarmless Error.</p> <p>In an indictment for murder, if the trial court instructs correctly as to the degree or quantity of proof necessary to reduce the crime of murder to manslaughter and later lays down a contradictory rule by saying that the mitigating circumstances must be proven beyond a reasonable doubt, it is harmless error, there being no evidence tending to reduce the crime to manslaughter.</p> <p>2. JURY — Jurors—Special Veniremen — Challenges.</p> <p>In an indictment for murder, where the state stands aside a number of the special veniremen, it is not error for the trial court, after the special venire is exhausted to have the names of those stood aside placed in a hat and drawn again, instead of having them called in the order in which they had been stood aside.</p> <p>3. EVIDENOE — Homicide—Declarations.</p> <p>In an indictment for murder, evidence that the accused said immediately after the shooting, “That was a good shot, wasn’t it, with my left hand?” is competent.</p> <p>4. EVIDENCE — Homicide—Opinion Evidence.</p> <p>In an indictment for murder a witness may state that the prisoner shortly before the killing seemed mad at the deceased.</p>

INdictmeNT against J. G. Mitchell, heard by Judge A: L. Goble and a jury, at February Term, 1902, of the Superior Court of Rockingham County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against J. E. Austin, beard by Judge Walter H. Neal and a jury, at July Term, 1902, of tbe Superior Court of Randolph County. From a verdict of guilty and judgment tbereon, tbe defendant appealed.

INdictmeNt against A. II. Ninestein, heard by Judge Walter II. Neal and a jury, at February Term, 1902, of the Superior Court of Rowan County. From a judgment of guilty on a special verdict, the defendant appealed.

INDICTMENT against Albert Jones, beard by Judge H. R. Bryan and a jury, at January Term, 1902, of the Superior Court of Waee County. From a judgment of not guilty on a special verdict the State appealed.

INDICTMENT against J. W. Crook, heard by Judge W. 8. O’B. Robinson and a jury, at July Term, 1902 of the Superior Court of Union County. From a. verdict of guilty* and judgment thereon, the defendant appealed.

<p>INTOXICATING LIQUORS — Retailing—Special Verdict — Verdict—The Code, Sec. 1076 — Acts 1901, Oh. 9, Secs. 70, 103.</p> <p>In a prosecution for retailing liquor without a license, a special verdict which fails to find that the defendant did not have a license to sell is not sufficient to sustain a judgment of guilty.</p>

<p>1. RAPE — Instructions—Assault With Intent to Commit Rape — Intent.</p> <p>In the trial of an indictment for an assault with the intent to commit a rape a requested instruction that rape is a most detestable crime and that the heinousness of the offense may transport the jury and judge with so much indignation that they may be overhastily carried on to a conviction on insufficient evidence was properly refused.</p> <p>2. INSTRUCTIONS — Trial Judge — Prayers for Instructions.</p> <p>The trial judge is not required to give instructions in the very words in which they are requested.</p> <p>3. EVIDENCE — Sufficiency of Evidence — Rape—Assault with Intent to Commit Rape.</p> <p>There is sufficient evidence in this case to be submitted to the jury as to whether the accused made the assault with the intent to commit rape.</p> <p>4. RAPE — Assault with Intent to Commit Rape — Intent.</p> <p>If at any time during an assault by a man on a woman he has an intent to ravish her, he is guilty of an assault with intent to commit a rape.</p> <p>5. CONTINUANCES — Supreme Court — Appeal.</p> <p>An appeal in a criminal action will not be continued in the supreme court for the reason that a civil action for the same offense is pending in the superior court.</p> <p>Douglas, J., dissenting.</p>

INDICTMENT against Joe Oole and others, heard by Judge Francis D. Winston and a jury, at Fall Term, 1902, of the Superior Court of Vance County.

INDICTMENT against John Hall, Pink Woods, Ed. Chavis, Pink Chavis, and Peck Locklear, heard by Judge O. M. Qoolce and a jury, at February Term, 1903, of the Superior Court of Robeson County. The defendants, with Peck Locklear, were indicted in the court below for the murder of Philip Barton.

INDICTMENT against Riddick Boone, heard by Judge M. II. Justice and a jury, at April Term, 1903, of the Superior Court of Oates County. From a judgment of not guilty on a special verdict, tbe State appealed.

INDICTMENT against Charles Yoder, beard by Judge B. F. Long and a jury, at February Term, 1903, of the Superior Court of Catawba County.

<p>1. EXPERTS — Findings of Court — Appeal.</p> <p>The finding of a trial judge that a witness is an expert is final if there is any evidence to sustain the finding.</p> <p>2. EXPERT EVIDENCE — Opinion Evidence — Physicians and Surgeons— Witnesses— Wounds.</p> <p>A physician may testify as an expert as to the kind of weapon that would produce a wound examined by him.</p> <p>3. EXPERT EVIDENCE — Opinion Evidence — Physicians and Surgeons— Wounds.</p> <p>A physician may testify as an expert whether the absence of water from the stomach or lungs of a person, taken from water, indicated that such person was killed otherwise than by drowning.</p> <p>4. EVIDENCE — Drawings—Maps.</p> <p>A person maj’’ use a map or drawing to demonstrate the relative positions of places involved in the evidence given by him.</p> <p>5'. EVIDENCE — Flight.</p> <p>Evidence that a prisoner did not escape jail, he having opportunity to do so, is not competent.</p> <p>6. INSTRUCTIONS— Circumstantial Evidence — Reasonable Doubt — The Code, Sec. 418.</p> <p>The trial court is not required to give instructions in the language of the prayers, here relative to circumstantial evidence and reasonable doubt; provided the instructions given are correct and cover the various phases of the testimony.</p> <p>7. EVIDENCE — Sufficiency of Evidence. — Questions for' Jury — Homicide.</p> <p>There is sufficient evidence in this case to go to the jury connecting the defendant with the death of the deceased.</p>