Volume 133 — North Carolina Reports

ActioN by Nathaniel Gray against T. W. Hawkins, beard by Judge Walter H. Neal at July Term, 1903, of the Superior Court of MecivLenbueg… Held: owned and enjoyed by him shall go to and vest in the survivor or survivors, as the case may be, and to be held, not subject to tbe debts of either of the said remaindermen, except as to the surplus of rent as to each share over $500; the object of this deed, in part, being the support and maintenance of the said John, William G. and…

<p>AotioN by M. TIahn, administrator, against D. H. Brin-son and others, heaijd by J udge Garland 8. Ferguson, at April Term, 1903, of the Superior Court of Pamlico County.</p> <p>From a refusal to set aside a judgment the defendants appealed.</p>

<p>ActioN by L. C. Hart against T. C. Cannon and W. H. White, heard by Judge 0. 8. Ferguson and a jury, at May (special) Term, 1903, of the Superior Court of Pitt County.</p> <p>Erom a judgment for the defendants the plaintiff appealed.</p>

ActxoN by Sv W. Smallwood against tbe Life Insurance Company of Virginia, beard by Judge 0. 8. Ferguson and a jury, at May Term, 1903, of tbe Superior Court of Chaven County. From a verdict for tbe plaintiff tbe defendant appealed.

ActioN by W. E. Best, administrator, against the British American Mortgage Company, heard by Judge George E. Brown, Jr., at December Term, 1902, of the Superior Court of Greene County. From a judgment for the defendant the plaintiff appealed.

<p>APPEAL — Brief — Printing Brief — Buies of Supreme Court — Buies 32, Slt.</p> <p>An appeal will be dismissed for failure of appellant to file printed brief on Tuesday of the week preceding the call of the district to which the cause belongs, unless, for good cause shown, the court shall give further time to print the brief.</p> <p>Douglas, J., dissenting.</p>

<p>1. DIVORCE — Alimony—Complaint—Affidavit—The Code, secs. 1887, 1892.</p> <p>In an application for alimony pendente lite the affidavit and petition must be verified as required by section 1287 of The Code.</p> <p>2. DIVORCE — Alimony—The Code, sec. 1287.</p> <p>In an'action for divorce from bed and board, the affidavit required by section 1287 of The Code must state that the action was not brought within six months from the time the plaintiff first acquired knowledge of the facts therein stated.</p>

ActioN by G. W. Baker and W. R. Brown against the Roanoke and Tar River Railroad Company, heard by Judge Fred. Moore and a jury, at April Term, 1903, of the Superior Court of Beetie County. Erom a judgment for the plaintiff the defendant apnealed.

<p>1. NEGOTIABLE INSTRUMENTS — Mistake—Presumptions•—Evidence.</p> <p>It is not error to refuse to charge that the presumption of law that notes were the property of the payee could not be rebutted by the unsupported evidence of the payee that they were executed to him by mistake.</p> <p>2. NEGOTIABLE INSTRUMENTS — Mistake—Evidence.</p> <p>It is not error to refuse to charge that where it is sought to show by parol evidence that notes were executed to the payee by mistake, that the evidence should be received with great caution and the jury should look anxiously for some corroboratory facts and circumstances in support of it, and that the claimant of the note should not delay in the ascertainment of his rights, as a stale claim would merit but little attention.</p> <p>.3. NEGOTIABLE INSTRUMENTS — Mistake.</p> <p>It is sufficient, on the question of mistake as to the payee in a note, to charge that if the jury are thoroughly satisfied from the evidence that the draftsman of the notes made a mistake in drawing them, and that it was intended that they should be made payable to the claimant and not to the payee in the notes, then they should find accordingly.</p>

<p>1. CLAIM AND DELIVERY — Replevin—Deeds—Escrow—Justices of the Peace — Jurisdiction.</p> <p>In this action of claim and delivery for a deed there is no evidence that the title to land is involved, and the jurisdiction of the justice of the peace is not ousted.</p> <p>2. JUSTICES OF THE PEACE — Jurisdiction—Claim and Delivery— Pleadings.</p> <p>Where a complaint in claim and delivery before a justice of the peace alleges the value of the property to be less than fifty dollars, and the answer does not deny the allegation, no proof of the value is necessary.</p>

ActioN by D. 0. Newberry against tbe Norfolk & Southern Railroad and others, beard by Judge M. H. Justice and a jury, at April Term, 1903, of the Superior Court of T'yb-kell County. From a judgment for the defendant the plaintiff appealed.

<p>ActioN by A. Marcus, administrator, against G. D. Loane and Company, beard by Judge M. II. Justice and a jury, at April Term, 1903, of tbe Superior Court of Washington County. From a judgment for tbe plaintiff tbe defendants appealed.</p>

ActioN by S. G. Story against the Norfolk and Southern Eailroad Company, heard by Judge H. B. Bryan and a jury, at May Term, 1903, of the Superior Court of Peequimans County. From a judgment for the plaintiff the defendant appealed.

<p>NONSUIT — Dismissal—The Code, sec. 9S6.</p> <p>It is too late after verdict upon an issue or issues of fact for a plaintiff to take a nonsuit; and where the jury, after rendering a verdict, had returned to the jury room to correct a mere formal defect in the verdict, and as they retired the counsel for plaintiff informed the trial judge that the plaintiff would take a nonsuit, there was no error in refusing it.</p>

ActioN by Lola I. Smith against J. A. Paul, heard by Judge Prederich Moore and a jury, at December Term, 1901, of the Superior Court of Beaueokt County. Erom a judgment for the defendants the plaintiffs appealed.

<p>ActioN by Farrar, Wright & Co. against A. E. Harper, heard by Judge George H. Brown, at March Term, 1903, of the Superior Court of Edgecombe County. From a judgment for the plaintiff the defendant appealed.</p>

ActioN by G. A. Stancill against Alafair and Bedmond Spain, heard by Judge Garland 8. Ferguson and a jury, at April Term, 1903, of the Superior Court of Pitt County-Prom a judgment for the defendants the plaintiff appealed.

<p>ActioN by Z. Y. Butts against the Atlantic and North Carolina Railroad Company, heard by Judge G. 8. Ferguson and a jury, at February Term, 1903, of the Superior Court of Graven County. From a judgment for the plaintiff the defendant appealed.</p>

ActioN by Mary E. Perkins against Abrami Brinkley and others, heard by Judge Fred. Moore at March Term, 1903, of the Superior Court of Halifax Cbunty. Erom a judgment for the defendant the plaintiff appealed.

ActioN by George Marks against the Atlantia Coast line Kailroad Company, heard by Judge Fred. Moore and a jury, at June Term, 1903, of the Superior Court- of Halifax County. Erom a judgment for the plaintiff the defendant appealed.

ActioN by tbe Albemarle Steam Navigation Company against M. E. Worrell and wife, beard by Judge Fred. Moore, at April Term, 1903, of tbe Superior Court of íIeetROiid County. Erom a judgment ordering partition tbe defendants appealed.

<p>1. RAILROADS — Negligence—Logs and Logging.</p> <p>A company operating a private railroad constructed for the purpose of removing timber conveyed to it is liable to the owner of the land for damages to his timber from fires caused by sparks from its engines igniting combustible material negligently permitted to accumulate on its right of way, to the same extent as a public railroad company.</p> <p>2. PLEADINGS — Amendments.</p> <p>A complaint stating that damage by fire was caused by the careless and negligent failure to provide the engine with spark-arresters, may be amended by alleging the negligence to be that combustible matter was allowed to accumulate on the right of way.</p> <p>3. EVIDENCE — Sufficiency of Bvidence — Negligence.</p> <p>In an action for damages by fire, evidence that combustible matter was allowed to remain on the right of way of a private railroad, and that a fire was burning on the right of way soon after a train had passed, is sufficient to submit to the jury on the question of the negligence of the defendant.</p> <p>Montgomery, J., dissenting.</p>

ActioN by Jbbn G. Parker against John R. Taylor and others, beard by Judge M. H. Justice and a jury, at Spring Term, 1903, of the Superior Court of Gates County. Erom a judgment for the defendants the. plaintiff appealed.

ActioN by J ohn W. Harper and others against the Board of Commissioners of New Hanover County, heard by Judge R. B. Peebles, at Chambers, in Wilmington, N. C., during May Term, 1903, of the Superior Court of New Hanover County. From a judgment fon the plaintiffs the defendants appealed.

ApplicatioN by George P. Burgwyn for license to sell intoxicating liquors, beard by Judge M. H. Justice at August Term, 1903, of tbe Superior Court of Northampton County. From a judgment refusing to grant the application the petitioner appealed.

<p>ActioN by W. H. Johnston, executor, against Margaret A. Cutehin and others, heard by Judge George II. Brown at March Term, 1903, of the Superior Court of Edgecombe County. From ai judgment for the defendants the plaintiffs appealed.</p>

<p>Actiost .by T. E. Purnell against M. W. Page, Sheriff of Wake County, heard by Judge H. R. Bryan, at July Term, 1903, of the Superior Court of Wake County. From a judgment for the plaintiff the defendant appealed.</p>

<p>TRIAL — Appeal — Dismissal — Justices of the Peace — Appearances — Judgment — The Code, see. 880.</p> <p>Where the defendant, in an appeal from a justice of the peace, fails to appear in the superior court, having answered and raised a material issue, no judgment can be entered against him without a trial.</p>

ActioN by tbe Holly Shelter Railroad Company against H. B. Newton, and others, heard by Judge ~W. R. Allen, at September Term, 1903, of the Superior Court of PeNdeb County. From an order remanding the proceedings to the Clerk to' proceed the defendant appealed.

<p>PROHIBITION — Eminent Domain-Writs — The Code, secs. 116, 256, 19Jf5,1946.</p> <p>A writ of prohibition is not a writ of right, but its issuance is a matter of discretion, and will not be granted to prevent the clerk of the superior court from hearing an application for the condemnation of a right of way for a railroad.</p>

ActioN by S. Carroll against D. J. McMillan and others, heard by Judge R. B. Peebles, at March Term, 1903, of the Superior Court of PeNdee County. From a judgment for the defendants the plaintiff appealed.

<p>SALES — Chattel Mortgages.</p> <p>Where the owner of lumber authorizes a creditor in possession thereof to sell it and pay himself, such transaction constitutes a present sale of the lumber and passes title, freed from the lien of an unregistered mortgage.</p>

ActioN by B. Solomon and. others against the Wilmington Sewerage Company, beard by Judge B. B. Peebles, at Wilmington, March 24, 1903. Erom a judgment for the plaintiffs the defendant appealed.

ActioN by Mary E. Perkins against Abraham Brinkley, beard by Judge Frederick Moore and a jury at May Term, 1903, of the Superior Court of Warren County. From a judgment for the plaintiff for less than the relief demanded the plaintiff appealed. ■

<p>1. DEEDS — Frauds, Statute of — Evidence—Parol Evidence.</p> <p>Standing trees are a part of the realty and are not the subject of parol conveyance, and any evidence thereof is not competent.</p> <p>2. TRESPASS — Possession—Damages.</p> <p>An action for trespass for cutting and removing timber from land cannot be maintained by one not in actual or constructive possession thereof.</p> <p>3. ESTOPPEL — Trespass—Possession—Deeds.</p> <p>Where, in an action for trespass in cutting timber, plaintiff failed to prove that he was in actual possession or that he had legal title to the trees, defendants were not estopped from denying plaintiff’s title by two deeds by plaintiff and another, conveying the right to cut the timber to defendants, under one of which defendants’ rights had expired by limitation before any attempt had been made to cut the timber, and the other never having been delivered.</p> <p>4. TRESPASS — Damages.</p> <p>The grantee of land cannot maintain an action for damages for a trespass committed before he became the owner thereof.</p>

<p>ActioN by W. S. Hudnell against the Eureka Lumber Company and George T. Leach, heard by Judge George A. Jones and a jury at April Term, 1902, of the Superior Court of Beaufort County. Erom a judgment for the defendants the plaintiff appealed.</p>

<p>1. REHEARINGS — Appeal—Supreme Court Rule 53.</p> <p>Upon a rehearing the supreme court -will not consider any point not certified as erroneous by counsel making the certificate.</p> <p>2. APPEAL — Exceptions and Objections — References.</p> <p>Where the plaintiff excepts to a compulsory reference, an objection taken for the first time on appeal to the technical form of asking submission of issues arising “on the report” instead of “on the pleadings” will not be considered.</p>

<p>ActioN by Mike Eolb against the Firemen’s Insurance Company of Baltimore, heard by Judge G. M. Cooke, at February Term, 1902, of the Superior Court of CUMBERLAND County. From, a judgment for the defendant the plaintiff appealed.</p>

ActioN by Newton Eobinson against Alex. McDowell and others, heard by Judge G. M. Coolce and a jury, at March Term, 1903, of the Superior Court of BladeN County. From a judgment ordering the sale of certain land both plaintiff and defendant appealed. PLAINTIFF^ APPEAL. On the 16th of March, 1888, John A. McDowell, of Bladen County, executed a deed of trust to C. M. McLean for the benefit of his creditors.

ActioN by A. S. Watson against tbe Seaboard Air Line Eailway Company, heard by Judge H. B. Bryan and a jury, at April Term, 1903, of the Superior Court of Wake County. Erom a judgment for tbe plaintiff the defendant appealed.

ActioN by the Farmers’ Manufacturing Company against C. M. Steinmetz, beard by Judge R. B. Peebles and a'jury, at February Term, 1903, of the Superior Court of DuuliN County. From a judgment for the plaintiff the defendant appealed.

<p>AotioN by Eodolph. Duffy, Solicitor, on behalf of Annie E. Williams against W. Ii. Williams, heard by Judge H. R. Bryan, at December Term, 1902, of the Superior Court of DunniN County. From a judgment for the defendant the plaintiff appealed.</p>

<p>ActioN by Samuel Hodges and others against James Lipscomb and others, heard by Judge G. S. Ferguson, at September Term, 1903, of the Superior Court of Wilson County.</p> <p>Civil action, brought for the purpose of selling certain lands for reinvestment under the provisions of chapter 99, Laws 1903. The land ordered by the Court to be sold for reinvestment was devised by the testator to his adopted daughter, Minnie, for life, “and at her death to such child or children as she may leave surviving her, and if any of said children shall die, leaving issue, prior to the death of said Minnie, in that event such issue shall represent and take the share of its immediate ancestor.” Another piece of land was given to testator’s adopted daughter, Bettie, for life, with remainders over in the same terms used above.</p> <p>The ultimate remainder is in the following words: “If both the said Minnie and the said Bettie shall die, leaving no child or children, nor the issue of any child or children, living at their death or the death of the survivor, then and in that event I direct that my entire estate shall be divided equally between my heirs at law and distributees and the heirs at law and distributees of the said Minnie and Bettie, claiming and entitled through their mother.” A full recital of the limitations will be found in the former case, 128 N. C., 57.</p> <p>The said Minnie and Bettie and their children and grandchildren are the plaintiffs in this action. They have made parties defendant all those collateral heirs at law and dis-tributees of the said Minnie and the said Bettie and of the testator who would be their respective heirs at law and distribu-tees if the contingency should happen now, and they have sought to make all other persons who in any contingency would become interested in said land parties to this action through a guardian ad litem, appointed by the Cburt for that purpose on motion of plaintiffs.</p> <p>Erom a judgment for the plaintiffs the defendants appealed.</p>

ActioN by J. D. Elliott against M. E. Jefferson, beard by Judge Fred. Moore and a jury, at October Term, 1903, of tbe Superior Court of Beaufoet County. Erom a judgment for tbe defendant tbe plaintiff appealed.

ActiON by the Board of County Commissioners of Chat-ham County against the Seaboard Air Line Railway Company, heard by Judge O. II. Allen, at May Term, 1903, of the Superior Court of Chatham County. From a judgment for the defendant the plaintiff appealed.

<p>1. CARRIERS — Passengers—Negligence—Personal Injuries.</p> <p>A railroad company must notify passengers of danger if the same is or should be known to its employees.</p> <p>2. PLEADINGS — Variance—Allegata et Probata.</p> <p>To allege one person to be the conductor, whose duty it was to warn a passenger of danger, and the proof shows that a different person was the conductor, is an immaterial variance.</p>

ActioN by G. R,. Hodges and wife against tbe Western Union Telegraph Company, heard by Judge H. B. Bryan and a jury, at May Term, 1903, of the Superior Court of Hab-nett County.

<p>ACTION by S. E. Hatcher against J. A. Dabbs, administrator of S. E. Liles, heard by Judge O. II. Allen and a jury, at April Term, 1903, of the Superior Court of ANSON County, Erom a judgment for the plaintiff the defendant appealed.</p>

<p>ActioN by A. Lassiter, administrator of A. E'. Lassiter, against the Raleigh and Gaston Railroad Cbmpany, heard by Judge H. B. Bryan at February Term, 1903, of the Superior Court of Wake County. From a judgment for the defendant the plaintiff appealed.</p>

<p>ActioN as for contem.pt against S'. R. Odum, beard by Judge B. B. Peebles at February Term, 1903, of tbe Superior Court of Sampson County. From a judgment against tbe defendant be appealed.</p>

ActioN by A. Si Stroud against tbe Western Union Telegraph Company, beard by Judge W. B. Allen and a jury, at June Term, 1903, of the Superior Court of Guilpoed Cbunty. From a judgment for the plaintiff the defendant appealed.

ActioN by Eli SbanMe against E. N. Ingram and E. P. Ingram, beard by Judge O. H. Allen and a jury, at March Term, 1903, of the Superior Court of Richmond County. Erom a judgment for the defendants the plaintiff appealed.

ActioN by J. Locklear against Elias Bullard and others, heard by Judge O. II. Allen and a jury, at September Term, 1902, of the Superior Court of EobesoN County. From a judgment for the plaintiff the defendants appealed.

<p>1. EMINENT DOMAIN — Damages—Railroads—The Code, sees. 1946, 1945, 1943, 1944 — Aeis 1891, eh. 176 — Acts (Private) 1891, oh. 135, see. 16■ — Acts (Private) 1883, eh. Ill, see. 37.</p> <p>In the assessment of land taken for railroad purposes special benefits to the land and not benefits received in common with other property should be considered in reduction of the award for damages.</p> <p>2. EMINENT DOMAIN — Damages—Railroads.</p> <p>The finding of commissioners that land taken for railroad purposes received no special benefit is conclusive.</p>

ActioN by J. T. Stewart against J. M. P'ergusson and others, heard by Judge T. J. Shcm and a jury at October Term, 1902, of the Superior Court of Stoebs County. This is a special proceeding, commenced before the Clerk of the Superior Court, in which the petitioner prays that a sale be .ordered of his intestate’s land for the payment of debts. The case was transferred from the Clerk to the Superior Court at term for the trial of the issues raised by the pleadings.

<p>1. COUNTER-CLAIM — Contracts— Pleadings — Foreclosure of Mortgages.</p> <p>In an action on a note to recover the possession of mortgaged property the defendant may set up a counter-claim arising from a breach of a contract.</p> <p>2. REFERENCES — Pleadings—Demurrer—The Code, sec. J$l.</p> <p>A reference should not be ordered, after overruling a demurrer, until the pleadings are in and the parties are at issue.</p>

ActioN by II. T. Greenleaf against tbe People’s Bank of Buffalo and Norris Morey, beard by Judge M. II. Justice at Spring Term, 1903, of tbe Superior Court of Da.ee County. Prom a judgment for the defendants the plaintiff appealed.

<p>ON PetxtioN pon Rehearing. For former opinion see 132 N. O., 292.</p>

ActioN by M. B. Blalock and Company against W. D. Clark and others, beard by Judge W. B. Allen at July Term, 1903, of the Superior Court of Stanly County. From a judgment for the defendants the plaintiffs appealed.

ActioN by Kate I. Thomason and others against D'. K. Julian and others, heard by Judge T. A. McNeill at May Term, 1903, of the Superior Court of Rowan County. Erom a judgment for the plaintiffs the defendants appealed.

<p>ActxoN by D. M. Trolinger against J. P. Boroughs, heard by Judge W. B. Allen and a jury, at July Term, 1903, of the Superior Court of Nandolpi-i County. Erom a judgment for the defendant the plaintiff appealed.</p>

ActioN by J. W. Murray against F. L. and J. W. Williamson, heard by Judge W. B. Allen and a jury at February Term, 1903, of the Superior Court of Alamance County. From a judgment for the defendants the plaintiff appealed.

ActioN by S. E. D'avis against M. E. Evans, heard by Judge O. H. Allen and a jury at August Term, 1903, of the Superior Court of Granville County. From a judgment for the defendant the plaintiff appealed.

ActioN by S. W. Travers & Company against the North Carolina Railroad Company, heard by Judge W. R. Allen and a jury at April Term, 1903, of the Superior Court of Guilford County. Erom a judgment for the plaintiff the defendant appealed.

<p>PetitioN to Eosiieae this case, reported in 131 N. O., 352.</p>

ActioN by O. F. Pearce against B. J. Fisher and another,, heard by Judge Thomas A. McNeill and a jury at September Term, 1902, of the Superior Court of Guilpobd County. From a judgment for the plaintiff the defendants appealed.

<p>PetitioN to Rei-ieae this case. For former decision without an opinion, see 131 N. C., 827.</p>

<p>1. EVIDENCE — Maps—Deeds—Boundaries.</p> <p>Where no evidence is offered as to when a map found among the grantor’s books was made, or that it-was in existence and referred to by the parties at the execution of the deed, it is inadmissible to show the land included in the deed.</p> <p>2. EVIDENCE — Agency—Declarations—Boundaries.</p> <p>Where a husband is in possession of land as agent of his wife, his declarations to strangers in regard to the boundaries of her land are not admissible against her.</p> <p>3. EVIDENCE — Declarations—Deeds—Boundaries.</p> <p>Conversations with the grantor in a trust deed, without evidence that they were had with or were known to the trustee or cestui que trust, or that the deed was made with reference thereto, are inadmissible in a suit involving the construction of the deed.</p> <p>4. EVIDENCE — Trusts—Boundaries.</p> <p>In a suit by a eestui que trust for rents due from the trustee, testimony as to a settlement of the boundaries between plaintiff and grantor’s children is inadmissible where defendant had taken possession of and rented the land.</p>

<p>1. HUSBAND AND WIFE — Jurisdiction—Justice of the Peace — Superior Court — Negotiable Instruments.</p> <p>The superior court has no jurisdiction of an action on a note for $275; but on which the balance was less than $200.</p> <p>2. HUSBAND AND WIFE — Parties—Negotiable Instruments — The Code, sec. 178.</p> <p>In an action on a note seeking to charge her personal estate, the wife and husband must be joined as parties defendant.</p> <p>3. HUSBAND AND WIFE — Parties—Judgments—The Code, sec. 178.</p> <p>No judgment can be rendered against a husband who is joined with his wife in an action under The Code, sec. 178.</p> <p>4. HUSBAND AND WIFE — Negotiable Instruments — Separate Property of Wife — The Code, secs. 1828, 1831, 1832, 1836.</p> <p>A note signed by the husband and wife, binding her separate estate for the payment of the debt, the amount therein having been advanced for the benefit of her separate estate, is sufficient to bind her separate personal estate.</p> <p>5. HUSBAND AND WIFE — Exemptions—Judgments—Executions—The Code, sec. 41/3.</p> <p>In an action on a note to charge the separate estate of a married woman, she cannot set up her personal property exemptions against the action, but may claim the same upon issuance of execution.</p> <p>6. HUSBAND AND WIFE — Separate Property of Married Women — Exemptions — Aots 1891, eh. 91.</p> <p>Acts 1891, eh. 91, requiring the private examination of a married woman to a chattel mortgage on household and kitchen furniture, does not apply to a note signed by husband and wife binding her separate personal estate.</p> <p>7. HUSBAND AND WIFE — Separate Estate of Married Women — Superior Court — Jurisdiction.</p> <p>The superior court has jurisdiction of an action seeking to charge the separate estate of the wife, though the note sued on is less than $200.</p> <p>8. HUSBAND AND WIFE — Negotiable Instruments — Separate Estate-of Married Women.</p> <p>A note signed by husband and wife without a privy examination of the wife cannot be enforced against her separate real estate.</p> <p>Clark, C. J., dissenting in part.</p>

ActioN by M. Makely and wife against the Supreme Council American Legion of Honor, heard by Judge Fred. Moore and a jury, at Fall Term, 1902, of the Superior Court of Chowan County. From a judgment for the plaintiff the defendant appealed.

<p>ActioN by M. F. Hopper against tbe Southern Express Company, beard by Judge Walter IT. Neal at March Term, 1903, of the Superior Court of Foesyti-i County. From a judgment for the plaintiff the defendant appealed.</p>

ActioN by J. J. Evans against «T. M. Abridge, beard by Judge W. B. Allen and a jury at July Term, 1903, of the Superior Court of RaNdolph County. From a judgment for the defendant the plaintiff appealed.

<p>1. JUDGMENTS — Excusable Neglect — Findings of Court.</p> <p>On a motion to set aside a judgment, if the court finds the movant guilty of inexcusable neglect, it need not find whether the defendant had a meritorious defense.</p> <p>2. JUDGMENTS — Setting Aside — Justices of the Peace — Findings of Court■ — Superior Court.</p> <p>On appeal to the superior court from an order of a justice denying a motion to open a default judgment, the court may disregard the justice’s finding of fact and hear the matter anew.</p> <p>3. JUDGMENTS — Attachment—Publication—Foreign Corporation — Notice.</p> <p>A non-resident corporation, against which a default judgment was obtained after service by publication, is not entitled to have the default judgment opened on the ground that it had no notice of the pendency of the suit unless it shows that it exercised due diligence.</p>

Action by J. D. Atwell against J. M. Shook, beard by Judge W. B. Allen and a jury, at August Term, 1903, of the Superior Court of Ieedell County. From a judgment for tbe plaintiff tbe defendant appealed.

<p>1. WILLS — Estates—The Gode, see. ¡¡Ufé — Devises and Legacies.</p> <p>Where realty is devised to a person and her children during their lifetime and then to go to her grandchildren, on default of grandchildren in esse at the death of testator the fee vests in the heirs at law of the testator to the use of any grandchildren who might thereafter be born.</p> <p>2. WILLS — Devises and Legacies — Seirs.</p> <p>The heirs of a testator, and not the residuary legatees, take property included in a lapsed specific devise, unless it appears that the testator intended it otherwise.</p>

ActioN by C. D. Gerringer and John H. Gerringer against the North Carolina Home Insurance Company, heard by Judge O. H. Allen, and a jury, at September Term, 1903, of the Superior Court of Alamance County. Erom a judgment for the defendant the plaintiffs appealed.

<p>1. MALICIOUS PROSECUTION — Warrant—Evidence.</p> <p>In an action for malicious prosecution it is not necessary to show that the defendant company swore out the warrant, it being sufficient if it directly or indirectly procured it to be issued.</p> <p>2. ISSUES — Malicious Prosecution — Illegal Arrest — Damages—The Code, sec. S95.</p> <p>Where an action is for malicious prosecution and illegal arrest, and an issue is submitted as to each, two issues should be submitted as to damages.</p>

<p>A PETITION to Rehear tbis case, reported in 132 N. C., 399.</p>

<p>1. JUDGMENTS — By Default and Inquiry — Excusable Neglect — Affidavits — Findings of Court.</p> <p>On appeal from a refusal to set aside a judgment by default and inquiry on the ground oí excusable neglect, affidavits will not be considered; the findings of fact by the judge being conclusive.</p> <p>2. JUDGMENTS — Betting Aside — Excusable Neglect — Evidence—The Code, seo. 27^.</p> <p>The facts in this ease are not sufficient to justify the setting aside of a judgment by default and inquiry.</p> <p>3. JUDGMENTS — Betting Aside — Excusable Neglect — Meritorious Defense.</p> <p>A defendant against whom a default judgment has been taken is not entitled to have the default opened and judgment set aside merely because he has a meritorius defense, if his failure to assert it was not due to excusable neglect.</p> <p>4. OTUDG-MBNTS — By Default and Inquiry — Actions—Damages—Costs— Burden of Proof — The Code, see. 885.</p> <p>A judgment by default and inquiry merely admits a cause of action, and carries only nominal damages and costs; the burden of proving any damages beyond a penny being still upon plaintiff.</p>

<p>1. BOUNDARIES — Deeds—Swamps.</p> <p>Where a deed calls for a swamp and thence with the run of said swamp, the first call must go to the run of the swamp and not terminate at the edge of the same.</p> <p>2. BOUNDARIES — Deeds—Swa/mps—Questions for Jury.</p> <p>Where a deed calls for the month of a stream emptying into a swamp, the location thereof should be left to the jury.</p> <p>3. BOUNDARIES — Deeds—Swamps—Questions for Jury.</p> <p>Where the calls in a deed are ambiguous or uncertain, it is a question for the jury to decide what was meant.</p> <p>4. BOUNDARIES — Deeds—Questions for Jury.</p> <p>Where a call in a deed terminates at a swamp, the question whether the edge or run of the swamp is meant is for the jury.</p> <p>5. PARTIES — Abatement—Executors and Administrators.</p> <p>In an action for trespass by two plaintiffs, in which one died pending the action, his devisee cannot be made a party and recover in his stead, but his administrator must be joined.</p> <p>6. ABATEMENT — Dismissal — Executors and Administrators — The Code, see. 188 — Acts 18 87, oh. 889.</p> <p>A motion to dismiss an action for trespass for failure to make an administrator a party thereto cannot be made in the supreme court.</p> <p>7. ISSUES — Hew Trial.</p> <p>Where an issue is general, embracing within its scope several distinct tracts of land, a new trial thereon must be general.</p>

<p>WATERS AND WATER-COURSES — Damages—Measure of Damages.</p> <p>In an action for damages for tbe temporary obstruction of a waterway, the measure thereof is the loss of crops occasioned thereby up to the time of the bringing of the suit.</p>

ActioN by P. C. Graham, receiver, against J. S. Carr and J. S. Manning, heard by Judge W. B. Allen at March Term, 1903, of the Superior Court of Durham County. From a judgment for the plaintiffs the defendants appealed.

<p>CONTRACTS — Restraint of Trade — Physicians and Surgeons.</p> <p>A contract between two physicians in a town that at a certain time one will locate elsewhere, if “the field is not larger” when the contract is to be executed than when made, is void because too indefinite.</p> <p>Walker and Douglas, JJ., dissenting.</p>

<p>1. INSTRUCTIONS — Trial.</p> <p>It is improper to instruct the jury that “if they believe from the evidence” certain facts, then certain consequences -will follow. The language should be: “if they find from the evidence.”</p> <p>2. ARREST — Assault—Policeman—The Code, secs. 112/f, S810, 8811— Towns and Cities.</p> <p>A policeman who makes an arrest without a warrant outside the corporate limits of a town for the breach of an ordinance is guilty of an assault.</p> <p>3. ARREST — Assault—Excessive Force.</p> <p>The use of a pistol in attempting to arrest for a. misdemeanor is excessive force.</p> <p>4. ARREST — Assault—Escape—Carnages.</p> <p>Where a person is fleeing from arrest, charged with a misdemeanor, and is out of the control of the officer, such officer is guilty of an assault if he shoots at the said person.</p>

<p>ActioN by J. S. Parish against the East Coast Cedar Company and others, heard by Judge Frederick Moore at November Term, 1902, of the Superior Court of Dabe County. From a judgment for the defendant the plaintiff appealed.</p>

ActioN by W. Joines against- II. Johnson, heard by Judg’e Walter II. Neal and a jury, at June Term., 1903, of the Superior Court of Wilees County. Prom a judgment for the plaintiff the defendant appealed.

Action by J. Me. Price against B. F. Price and others, beard by Judge G. M. Coolce and a jury, at August Term, 1903, of the Superior Court of UNION County. From a judgment for the defendants both the plaintiff and the defendant J. C. Price appealed.

<p>EVIDENCE — Res Gestae — Gamers—Passengers—Assault.</p> <p>In an action against a carrier for failure to protect a passenger against an assault at a station, the evidence by a witness that he told the person assaulted immediately after the assault that an employee of the carrier took part in the assault is competent as part of the res gestae.</p> <p>Colmo» and Walker, JJ., concurring.</p>

<p>1. SPECIFIC PERFORMANCE — Contracts—’Non-suit—Equity—Const. N. C., Art. Jf, seo. 1.</p> <p>In an action for tbe specific performance of a contract, the court cannot non-suit the plaintiff, unless, admitting the evidence to be true, with all inferences favorable to plaintiff, he is not entitled to relief.</p> <p>2. SPECIFIC PERFORMANCE — Contracts—Questions for Jury — Questions for Court.</p> <p>In an action for the specific performance of a contract, controverted facts should be submitted to the jury, but the trial judge, on the admitted facts and those found by the jury, should decide whether the plaintiff is entitled to the equitable relief demanded.</p> <p>3. SPECIFIC PERFORMANCE — Contracts—Undue Influence.</p> <p>Where a contract to convey an interest in property is based on a fair consideration, is not procured by undue influence, its enforcement will not be oppressive and it has been partially performed, its specific performance will be decreed.</p>

<p>1. ASSIGNMENTS — Married Women — Stocks—Husband and Wife.</p> <p>Where a feme sole assigns stock in blank and after marriage new stock is issued to her, and she assigns the same to the same parties without assuming control thereof, such assignment is valid without the consent of the husband.</p> <p>2. SURETYSHIP — Release—Extensión—Stocks—Assignments—Married Women.</p> <p>Where a person assigns stock in blank and allows another person to use the same as collateral without any knowledge on the part of the person to whom given as collateral as to any conditions relative to the assignment, is not released by an extension of time in payment of the debt for which it is collateral.</p>

<p>TELEGRAPHS — Contracts—'Negligence—Damages.</p> <p>In tbis action against a telegraph company for damages for delay in the delivery of a message, the facts render the company liable only for nominal damages.</p> <p>Clark, C. J., and Douglas, J., dissenting.</p>

ActioN by the City of Wilmington against Bridget McDonald and others, heard by Judge B. B. Peebles> at January Term, 1903, of the Superior Court of New Hanover County. Erom a judgment for the plaintiff the defendant appealed.

ActioN by Eiffie Summerlin against the Carolina and Nortb-western Railroad Company, beard by Judge T. J. Shaw and a jury, at February Term, 1903, of tbe Superior Court of Gaston Cbunty. From a judgment for tbe defendant tbe plaintiff appealed.

ActioN by R. M. Station and others against J. O. Bessent and others, heard by Judge Walter H. Neal, at March Term, 1903, of the Superior Court of Forsyth County. From a judgment for the defendants the plaintiffs appealed.

ActioN by Ei Bi Hartness against H. N. Pharr and others, heard by Judge Walter H. Neal, at October Term, 1903, of the Superior Court of Mbcklenburg County. Prom a judgment for the plaintiff the defendants appealed.

ActioN by Mary M. Bivings and others against William G-osnell and others, heard by Judge E. B. Jones and a jury, at March Term, 1903, of the Superior Court of P'ole County. Prom a judgment for the defendant the plaintiff appealed.

ActioN by N. W. Miller against Frank Cbxe and others, heard by Judge E. B. J ones, at March Term, 1903, of the Superior Court of Rutherford County. From a judgment for the plaintiff the defendants appealed.

ActioN by A. G. Olmsted and others against George Smith and others, heard by Judge E. B. Jones, at June Term, 1903, of tbe Superior Court of Buree County. From a judgment denying a non-suit the plaintiff appealed.

<p>MUNICIPAL CORPORATIONS — Elections—Oities <md Towns — Oonst. 7T. 0., Art. 8, sec. If. — Acts (Private) 1908, chs. 85, 86.</p> <p>Where a statute provides that an election shall be held to pass upon the question whether a town shall incur the expense of an electric light system, the board of aldermen cannot contract for the establishment of such electric light system without first submitting the question to a vote of the people of the town.</p> <p>Clark, C. J., and Douglas, J., concurring in result, hold that a municipal board cannot bind the town by a contract as to necessary expenses to be incurred after their term of office shall expire.</p>

<p>1. TELEGRAPHS — Delivery—Free Delivery Limits — Negligence.</p> <p>Where the sendee of a telegram lives outside the free delivery limits it is the duty of the telegraph company to notify the sender and demand payment or guaranty of payment of fees for delivery beyond the limits.</p> <p>2. TELEGRAPHS — Notice of Claim — Summons—Damages.</p> <p>A summons served on a telegraph company within the time stipulated in the telegraph blanks for making claim for damages is equivalent to the presentation of the claim within that time.</p> <p>3. JURISDICTION — Contracts—Telegraphs—Damages.</p> <p>The liability for non-delivery of a telegram in another state under a contract made in this state is determined by the law of the latter state.</p> <p>4. JURISDICTION- — Contraéis—Corporations—Foreign Corporations— The Code, sec. 194, subsec. 2.</p> <p>The Code, see. 194, subsec. 2, authorizes an action against a foreign corporation by a non-resident plaintiff where the cause of action arises in this state.</p> <p>5. TELEGRAPHS — Mental Anguish — Doomages—Negligence.</p> <p>Mental anguish, though unattended with physical injury, is an element of damage in actions against telegraph companies for the non-delivery of messages.</p>

ActioN by H. N. Pharr, administrator of G-. D. Sinclair, against the Southern Railway Company, heard by Judge W. H. Neal and a jury, at July Term, 1903, of the Superior Court of Mecklenburg County. From a judgment for the defendant the plaintiff appealed.

<p>1. STATUTES — General Assembly — Legislature—Evidence—The Oode, secs. 1839, 2689, 2867, 2869.</p> <p>A copy of the journal of the legislature deposited with the secretary of state is not evidence for any purpose, and a misnomer of a town in a private act therein does not affect the validity of the act.</p> <p>2. STATUTES — General Assembly — Legislature—Journal—Evidence— The Const. N. C., Art. 2, secs. 1J¡, 16, 23.</p> <p>The journal of the legislature is competent evidence only for the purpose of ascertaining whether a law had been passed in accordance with the constitution, article 2, section 14, requiring it to be read three times on three different days in each house and the yeas and nays to be entered on the second and third readings.</p> <p>3. EVIDENCE — General Assembly — Journals—Parol Evidence.</p> <p>The journals of the general assembly, when competent as evidence, import absolute verity, and cannot be explained or altered by parol evidence.</p>

<p>ActioN by Dobson & Whitley against the Southern Railway Company, heard hy Judge B. F. Long, at August Term, 1903, of the Superior Court of McDowell County. Erom a judgment for the plaintiff the defendant appealed.</p>

ActioN by E. A. Smith against J. H. Gudger and others, beard by Judge H. B. Jones, at November Term, 1903, of tbe Superior Court of Buncombe County. Erom a judgment for tbe plaintiff tbe defendants appealed.

ActioN by CWan, McClung & Co. against M. E. Eoberts & Co., beard by Judge W. A. Hohe and a jury, at May Term, 1903, of the Stuperior Court of Buncombe County. From a judgment for the defendants the plaintiffs appealed.

AotioN by tbe Willard Manufacturing Company against G. H. Tierney & Co. and others, in wbicb the Merchants’ National Bank of Vicksburg, Miss., intervenes, heard by Judge W. B. Allen and a jury, at January Term, 1903, of the Superior Court of Dukham County.

INDICTMENT against Thomas Campbell, heard by Judge G. 8. Ferguson and a jury, at April Term, 1903, of the Superior Court of PItt County. Erom a verdict of guilty and judgment thereon the defendant appealed.

INDICTMENT against Rate Staton, beard by Judge G. 8. Ferguson and a jury, a.t January Term, 1903, of tbe Superior Court of Pitt County. Erom a verdict of guilty and judgment tbereon, tbe defendant appealed.

INdictmeNT against Henry Graham, heard by Judge B. B. Peebles and a jury, at January Term, 1903, of the Superior Court- of Ienoib County. The defendants, together with one O. H. Harrison, who was at the time of the trial dead, were indicted for highway robbery from the person of one L. K. Nicholson, who testified that on the 5th of November, 1902, he came to Kinston with a load of tobacco. That after making some purchases and buying some whiskey he started home.

<p>LAKCENY — Evidence—Drunkenness.</p> <p>On a trial for stealing money from prosecutor while drunk, the state having, as a basis for the argument that defendant was preparing to take it, shown that after taking it from prosecutor’s pocket, at his request, to pay for the liquor, he, in putting it back, called the attention of the clerk to the fact, he, to explain this conduct, may show that prosecutor was in the habit of losing money while drunk and wrongfully accusing people of stealing it, and that he knew of this habit.</p>

INDICTMENT against Hunch Hullen, beard by Judge R. B. Peebles and a jury, at March Term, 1903, of the Superior Court of New Hanovee County. From a verdict of guilty and judgment thereon the defendant appealed.

INDICTMENT against John Clenny, beard by Judge R. B. Peebles and a jury, at Spring Term, 1903, Sampson County Superior Court. From a verdict of guilty and judgment tbereon tbe defendant appealed.

<p>INDICTMENT — Grand Jury — Jury—The Code, sees. 1/04, 921 — Acts 1901, chs. 28, 29 — Acts 1903, eh. 533.</p> <p>Under The Code, sec. 404, 921, acts 1901, chs. 28, 29, and acts 1903, ch. 533, a grand jury may be summoned for the term of the superior court for New Hanover county held on the fifth Monday after the first Monday in March.</p>

<p>LARCENY — Receiving Stolen Goods — Instructions■ — Indictment — Oounts.</p> <p>Where an indictment charges in one count larceny and in another the receiving of stolen goods, and the instructions relate only to the first count, and the defendant is found guilty on the second count, a new trial will he granted.</p>

<p>INDICTMENTS against Jeff Crook and Prank Grook, heard by Judge G. M. Goolce and a jury, at August Term, 1903, of the Superior Court of Union County. From verdicts of guilty and judgments thereon the defendants appealed.</p>

INDICTMENT against Joe Simpson and Amanda Reed, heard by Judge O. M. Goolce and a jury, at August Term, 1903, of the Superior Court of Union County. Erom a verdict of guilty as to Simpson and judgment thereon he appealed.

<p>EMBEZZLEMENT — Intent-—Burden of Broof — Presumptions—Felonious Intent — The Oode, see. 10Vi — Reasonable Doubt.</p> <p>In an indictment for embezzlement, the conversion being admitted or shown, the burden is on the state to show beyond a reasonable doubt the intent to' defraud.</p>

INDICTMENT against A. W. Neal, heard by Judge T. J. Shaw and a jury, at January Term, 1903, of the Superior Court of Cabarrus County. From a verdict of guilty and judgment thereon, at May Term, 1903, the defendant appealed.

INDICTMENT against Simon Tyson, heard by Judge Q. 8. Ferguson and a jury, at January Term, 1903, of the Superior Court of Pitt County. Erom a verdict of guilty and judgment thereon the defendant appealed.

INDICTMENT against Helix Holder, beard by Judge W. H. Neal and a jury, at August Term., 1903, of tbe Superior Court of Oababbus County. From a verdict of guilty and judgment tbereon tbe defendant appealed,

INDICTMENT against G. E. Ledford, beard by Judge W. A, Hoke and a jury, at Eall Term, 1902, of the Superior Court of Yancey County. From a verdict of guilty and judgment thereon the defendant appealed.

INLictmeNt against James Fritz, beard by Judge B. F. Long and a jury, at August Term, 1903, of tbe Superior Court of McDowell County. From a judgment of guilty on a special verdict, the State and tbe defendant appealed.

<p>PHYSICIAN'S AND SURGEONS — Licenses—The Code, secs. 812%, 8124 — Acts 1903, oh. 69"/ — Constitution of North Carolma, Art. I, | sees. 7, 81 — Const. U. 8., Fourteenth Amendment.</p> <p>Under a special verdict finding that the defendant advertises himself as a non-medical physician, curing disease by a system of drugless healing and treating patients by such system without medicine, claiming not to cure by faith, but by natural methods, without medicine or surgery; and that he administers massage, baths and physical culture, manipulates the muscles, bones, spine and solar plexus, and kneads the muscles with the fingers of the hand, writes no prescriptions as to diet, but advises his patients what to eat and what not to eat, the defendant is not guilty of practicing medicine without license though he admits that he was not licensed to practice medicine by the state medical board; that he charges fees for his services, and does not claim exemption as a nurse, midwife, or as curing by prayer.</p>

<p>INDICTMENT against G. T. Morgan, beard by Judge G. 8. Ferguson and a jury, at September Term, 1903, of tbe Superior Court of Wilson County. From a verdict of guilty and judgment thereon the defendant appealed.</p>

INDICTMENT against J. R. and. H. B. Register, beard by Judge Fred. Moore and a jury, at August (special) Term, 1903, of the Superior Court of Columbus County. Prom a verdict of guilty and judgment thereon the defendants appealed.

<p>1. PORMER CONVICTION — Verdict — Plea — Judgments—Trial—Demurrer.</p> <p>Where the court sustains a plea of former conviction after the jury has returned a verdict of guilty, the proper practice is to strike out the verdict and sustain the plea as upon a demurrer by the state; and to enter a judgment of not guilty on the verdict as rendered is improper.</p> <p>2. ORDINANCES — Former Conviction — Towns cmd Cities — Disorderly Conduct — Assault—The Code, sees. 3818, 8880.</p> <p>A conviction of violating a city ordinance punishing the disturbance of the good order and quiet of the town by fighting is not a bar to a prosecution by the state for an assault.</p> <p>3. PORMER CONVICTION — Verdict—Judgments—Trial.</p> <p>Where the trial court sustains a plea of former conviction and enters a judgment of not guilty, without striking out the jury’s verdict of guilty, it may, on reversal, proceed to enter judgment of conviction.</p>

INDICTMENT against Will Boggan, heard by Judge O. M. Goolce and a jury, at September Term, 1903, of the Superior Court of Anson County. From a verdict of guilty and judgment thereon the defendant appealed.

INdictmeNt against J. E. Castle and W. E. Garland, beard by Judge E. B. Jones and a jury, at April Term, 1903, of tbe Superior Court of Bubke County. Erom a verdict of guilty of murder in tbe second degree and judgment thereon the defendants appealed.