Volume 134 — North Carolina Reports

<p>Actiow by G. II. Broekenbrough and others against the Board of Water Commissioners of the city of Charlotte, heard by Judge 'Walker H. Neal, at October Term, 1903, of the Superior Court of MeckleNRuiig County.</p>

<p>PidtitioN to rehear this case, reported in 131 N. O., 148.</p>

<p>1. CONTRACTS — Ultra Tires — Corporations — Bridges — Consideration — Public Policy.</p> <p>A promise by a land company to pay a portion of the expense of a public improvement is not void as against public policy, and if it has a peculiar interest in the matter the contract is not void for the want of a consideration.</p> <p>2. CORPORATIONS — Contracts—Ultra Vires — Estoppel.</p> <p>Where a corporation is a party to an executed contract and has received the benefits therefrom, it is estopped from pleading that the contract was ultra vires. . ■</p>

<p>ActioN by the Tennessee River Land and Lumber Company against GL W. Butler and others, heard by Judge E. B. Jones, at April Term, 1903, of the Superior Court of Bueice County.</p>

<p>1. NEGLIGENCE — Carriers—Railroads—Evidence.</p> <p>The evidence in this action by a passenger for an injury to his arm from being struck by a mail pouch on a crane, warrants the instruction submitting the issue of a defect either in the construction of the mail crane or the hanging of the pouch.</p> <p>2. NEGLIGENCE — Presumptions—Carriers—Passengers.</p> <p>Where a passenger on a train is injured by having his arm struck by a mail pouch on a • crane and the cause is not shown, the presumption is that the injury occurred by the negligence of , the carrier.</p> <p>3. NEGLIGENCE — Damages—Passengers—Carriers. ■</p> <p>The mere fact that a passenger has his arm extended beyond the line of the car does not bar a recovery if he is injured by an external object.</p> <p>4. .VERDICT — Setting Aside — New Trial — Trial—Evidence—Appeal.</p> <p>The refusal of a trial judge to set aside sa verdict because against the weight of evidence is not reviewable on appeal.</p>

<p>INSURANCE — -Fire Insurance — Policy—Trcmsfer—Estoppel.</p> <p>A transfer of a policy by the president of an insurance company is binding, though the transfer was not made according to the blank form printed on the back of the policy.</p>

<p>1. ACTIONS — Misjoinder—Demwrer—fWaiver—Pleadings—Exceptions and Objections.</p> <p>An objection to a misjoinder of causes of action must be taken by demurrer, and if the defendants answer the objection is waived.</p> <p>2. INDEMNITY BONDS — Sheriffs—Judgments.</p> <p>Where an indemnity bond is given to a sheriff to pay.such sums as may be recovered against him, there is a forfeiture when judgment is taken against him.</p> <p>3. INDEMNITY BOND — Sheriffs—Levy—Possession.</p> <p>Where a sheriff makes a sale of property levied on, though a third person has sued him for and taken possession of the property, he is entitled to enforce an indemnity bond given to induce him to sell.</p> <p>4. ACTIONS — Indemnity Bonds — Executions—Sheriffs.</p> <p>A sheriff may maintain one action on the bonds given to indemnify him on proceeding with a sale of property levied on under execution.</p>

<p>INJUNCTIONS — Landlord and Tenant — The Code, sees. 1TÍ2, 183Jh</p> <p>Where a person has been enjoined from bringing actions on each instalment of rent as vexatious, such person is not precluded by such injunction from issuing execution on a judgment taken in a summary action in ejectment for the recovery of the property after the expiration of the lease.</p>

<p>ActioN by tlie city of Asheville against C. A. Webb1 & Co., beard by Judge E. B. Jones at Fall Term, 1903, of the Superior Court of Buncombe County.</p>

<p>ActioN by F. W. Ewbank against. V. E'. Turner and others, composing the Board of Examiners of the North Carolina Dental Association, heard by Judge B. F. Long, at Chambers, October 31, 1903, at Marion, N. C.</p>

<p>ActioN by Alney Whitson against T. F. Wrenn, heard by Judge B. F. Long and a jury at August Term, 1903, of the Superior Court of McDowell County.</p>

<p>1. CARRIERS — Passengers—Trespasser.</p> <p>A person who goes on a train for the purpose of assisting a passenger is not a trespasser, and is entitled to the protection of the company if its conductor has notice of his presence.</p> <p>2. NEGLIGENCE — Carriers—Passengers.</p> <p>In this action to recover damages for injuries received from alighting from a train in motion, there is sufficient evidence of negligence on the part of the defendant company to be submitted to the jury.</p> <p>3. CONTRIBUTORY NEGLIGENCE — Carriers—Passengers.</p> <p>The general rule is that a person who alights from a moving train is guilty of contributory negligence.</p>

<p>AotioN by Hiram Griffin against the Atlantic Coast Line .Hailroad Company, heard by Judge Frederick Moore and a jury at March Term, 1903, of the Superior Court of Halifax County.</p>

<p>ActioN by Lucy B. Lambertson and others against Albert Vann, executor of the estate of W. A. Lambertson, heard by Judge F. D. Winston and a jury at Fall Term, 1901, of the Superior Court of Northampton County.</p>

<p>P'etitioN to rebear this case reported in 131 N. C., 830:</p>

<p>ActioN by Thomas Fawcett and others against the town of Mount Airy, heard by Judge T. A. McNeill at November Term, 1903, of the Superior Cburt of Slurry County.</p>

AotioN by A. T. Mial against J. C. Ellington and others, beard by Judge B. Br Peebles at July Term, 1903, of the Superior Court of Wane County.

<p>This was a MotioN by the State to restore this case to the docket and for a writ of certiorari herein.</p>

<p>INDICTMENT against John Parker, beard by Judge W. E. Allen and a jury, at May Term, 1903, of tbe Superior Court of Dítrham County.</p>

<p>1. DAMAGES — Hegligenoe—Death.</p> <p>Damages are recoverable where death is hastened or accelerated by injuries resulting from negligence.</p> <p>2. BVIDENCE — Damages—Negligence—Death.</p> <p>In an action for death, evidence that the decedent would have died in a short time from natural causes is competent on an issue of damages, but not of negligence.</p>

<p>ActiON by Mary A. Dickens and others against Helen Perkins and others, heard by Judge O. A. Jones and a jury at November Term, 1902, of the Superior Court of Halifax County.</p>

<p>ActtoN by Agnes E. Cheek against tbe Oak Grove Lumber Company, beard by Judge Fred. Moore and a jury at June Term, 1903, of tbe Superior Court of Halifax County.</p>

ActioN by J. B. Sumner and others, against B. E. Early .and others, heard by Judge M. II. Justice, at October Term, 1903, of the Superior Court of HebtfOrd County.

<p>1. JURISDICTION — Exceptions and Objections — Waiver—Appeal—Demurrer.</p> <p>An objection to the jurisdiction, though waived in the court below, may be taken in the supreme court.</p> <p>2. JURISDICTION — Superior Court — Subrogation—Equity.</p> <p>The superior court has jurisdiction of an action by a creditor seeking to be subrogated to the rights of other creditors of the same debtor, whose claims he had paid.</p> <p>3. SUBROGrATION — Principal and Surety.</p> <p>Where a surety prays a judgment against his principal, he may recover any funds wrongfully converted or misapplied by the principal.</p> <p>4. SUBROGrATION — Pleadings—Principal and Surety.</p> <p>The complaint in this action for subrogation does not sufficiently locate the funds sought to be recovered.</p> <p>5. AMENDMENT — Pleadings—Demurrer—The Code, see. 273.</p> <p>Where a demurrer to a complaint is sustained, the trial judge may allow an amendment to the complaint.</p>

AotioN by T. P. Gheesborough and others against the Asheville Sanatorium, heard by Judge W. A. Moke, at May Term, 1903, of the Superior Court of Buncombe County. This action was brought by the plaintiffs for the purpose of enforcing the execution of the trusts declared in a certain deed executed by the defendant corporation to J. Si. Adams. Charles MeNamee was appointed receiver.

<p>1. PLEADINGS — ■Libel and Slander — Notice—Acts 1901, ch. 557 — The Code, sees. 757, 12S7.</p> <p>Under acts 1901, eh. 557, a complaint in an action for libel must allege the giving of five days’ notice to the defendant in writing, specifying the article and the statements therein alleged to be false.</p> <p>2. LIBEL AND SLANDER.</p> <p>Under acts 1901, ch. 557, an article signed “Smith” is not an anonymous publication.</p> <p>3. AMENDMENT — Pleadings—Demurrer.</p> <p>Where a demurrer to a complaint is sustained, the plaintiff is entitled to amend his complaint.</p>

<p>AotioN by Mark Disosway against A. M. Edwards, beard b¶ Judge Fred. Moore at November Term, 1903, of the Superior Court of C!ea.v:en County.</p> <p>This is an action upon a bond executed by the defendant in the following words: “Know all men by these presents that I, A. M. Edwards, of Craven County, N. G., acknowledge myself indebted to Mark Disosway in the sum of one thousand dollars. The condition of this bond is, such that if the ■said A. M. Edwards shall at any time, within the next twenty years from date hereof, engage in the sale of spirituous liquors, either directly or indirectly, within the limits of the ■city of New Bern, N. 0., then this bond to be in full force .and effect, and the said Mark Disosway, his heirs or assigns, in that case, is fully authorized hereby to at once take steps for the enforcement of this obligation, otherwise this bond to become null and void. A. M. Edwards, (Steal). Witness, R. B. Nixon.”</p> <p>The complaint alleges a breach in the bond, inasmuch as the defendant continues to engage in the sale of spirituous liquors in said city of New Bern, and further alleges in sepa-' rate paragraphs that he is thereby “endamaged to the amount of one thousand dollars,” and that “the defendant is indebted to him in the sum of one thousand dollars.”</p> <p>The defendant demurred upon the following grounds: 1. That the bond set out in the fourth paragraph of the complaint is in restraint of trade, tending to create a monopoly, contrary to public policy, null and void.</p> <p>2. For that in any event such a bond could only be good to the extent of securing actual damage sustained, and the complaint does not set forth any fact from which the Court can see that the plaintiff has sustained any damage whatever.”</p> <p>Whereupon, judgment was rendered as follows: “ This cause coming on to be heard upon the complaint of plaintiff and demurrer thereto filed by the defendant, and upon argument of counsel- said demurrer being overruled and the defendant allowed to answer over, but, declining to answer, excepts to the order of the Court overruling said demurrer and appeals to the Supreme Court; it is thereupon ordered and adjudged that the plaintiff recover of the defendant the sum of one thousand dollars, upon the verified complaint of the plaintiff, no answer being filed by the defendant, with interest until paid, and the costs of action.”</p>

<p>1. PLEADINGS — Waiver—Answer—Findings of Oowt — The Code, see. 258.</p> <p>Where the parties to an action agree that the facts may be found by the trial judge and judgment rendered thereon, all defects in the pleadings are thereby waived.</p> <p>2. ESTATES — Remainders—Descent and Distribution — The Code, see. .1281.</p> <p>Where a remainderman dies before the life-tenant, upon the death of the life-tenant the remainder descends to-' the heirs at law of the original remainderman.</p>

<p>Oojigiwal PROoeexdings in tiie Supreme Court by Mollie A. Miller, administratrix of Festus Miller, against the State.</p>

<p>ActioN by SI A. Woodard against J. E. Sauls, beard by J'udge G. 8. Ferguson, at D'ecember Term, 1903, of tbe Superior Court of WilsoN County.</p>

<p>1. TENANCY IN COMMON- — Possession■—■ Jurisdiction — Acts 1893, oh. 6.</p> <p>A tenant in common cannot bring an action against a co-tenant if a third party is in possession.</p> <p>2. WITNESSES — Competency—Evidence—The Code, see. 590.</p> <p>To be incompetent under section 590 of The Code, a witness must be either a party to the action or interested in the event thereof.</p> <p>3. DEEDS — Recordation—Delivery.</p> <p>A recorded deed is prima faeie evidence of its delivery and that the maker meant to part with the title.</p> <p>4. DEEDS — Delivery—Evidence.</p> <p>The evidence in this ease, if believed, is sufficient to prove an actual delivery of the deed.</p>

<p>ActioN by Oscar Hooker against Alfred and S. F. Worth-ington, heard by Judge Fred. Moore and a jury, at November Term, 1903, of the Superior Cburt of Pitt County.</p>

<p>ActioN by A. W. Avery against J. W. Stewart, heard by Judge Fred. Moore and a jury at November Term, 1903, of the Superior Court of Graven County.</p>

ActioN by H. C. Davis against tbe Seaboard Air Line Railroad, Company, heard by Judge M. II. Justice and a jury, at September Term, 1903, of the Superior Court of Bertie County. This is an action for damages for killing a cow. As the action was brought within six months after the cow was killed, a prima facie case of negligence arose under section 2326 of The Code. Btotk sides introduced testimony, and the issues and answers thereto were as follows: 1.

ActioN by T. G. Skinner against Harvey Terry, heard by Judge W. B. Gowncil and a jury, at Hall Term, 1903, of the Superior Court of Perquimans County. The locus in quo being a large tract of land situate in the counties of Perquimans and Pasquotank, known as the “Great Park Eistate,” was, on April 1, 1884, the property of Timothy Ely.

<p>1. NEGLIGENCE — Towns and Cities — Municipal Corporations — Sidewalks.</p> <p>A town or city is not liable in damages for an injury caused through the slipping of a person on its sidewalk on account of ice formed there at a season of the year when such formation of ice might be reasonably anticipated.</p> <p>2. NEGLIGENCE — Towns and Cities — Municipal Corporations — Ice— Sidewalks.</p> <p>It is error to instruct that the formation of ice on a sidewalk from a hydrant, during the course of a night, in a few hours, is, as a matter of law, negligence on the part of the city.</p> <p>3. MUNICIPAL CORPORATIONS — Towns and Cities — Notice—Acts (Private), 1895, ch. 100, secs. 96, 97.</p> <p>Where the charter of a city requires notice within a specified time of a claim before action can be brought, a claimant must allege and prove that the notice was given.</p>

<p>1. VENUE — Removal of Causes — The Code, secs. 177, 179, 192.</p> <p>Under The Code, sec. 195, providing for change of venue when the convenience of witnesses and the ends of justice demand, such motion may be made at any time in the progress of the cause.</p> <p>2. VENUE — Removal of Causes — Affidavits.</p> <p>The filing of an affidavit and motion for change of venue in vacation before the clerk is invalid. The motion must be made before the trial judge.</p> <p>3. VENUE — Removal of CaMses — The Code, sec. 195.</p> <p>Under The Code, sec. 195, a motion for change of venue because of , action brought in the wrong county must be made before, the time allowed to answer expires.</p>

ActioN by W. IT. Hauser and others against W. W. Craft and others, heard by Judge IF. II. Neal, at May Term, 1903, of the Superior Court of Fousyti-i County. This is an action for the recovery of real property which was tried in the Court below upon the following case agreed: “1. Isaiah Coe died sometime in 1836, leaving a last will and testament dated February 5, 1836, in which are these words and figures: “Item 3.

<p>1. NEGLIGENCE — Contracts—Carriers—Ordinances.</p> <p>Where a railroad company contracts with a .'town not to run its trains through the street above a certain speed, a breach of the contract is some evidence of' negligence in an action for personal injury.</p> <p>2. NEGLIGENCE' — Imputable negligence — Contributory negligence.</p> <p>The negligence of a driver of a conveyance is not imputable to a passenger therein.</p>

<p>AotioN by W. F. Outland against the Seaboard Air line Railway Company and others, heard by Judge Frederick Moore and a jury, at March Term, 1903, of the Superior Court of NoRthampton County..</p>

<p>1. STATUTES — General Assembly — Journals—Const. W. O., Árt. II, seo. 1J¡.; Acts (Private) 190S, oh. 48.</p> <p>The statute herein set out was passed in accordance with Art. II, see. 14, of the Constitution, requiring certain hills to be read three times in each house.</p>

ActioN by SSmitb Paul against tbe city- of Washington, beard by Judge W. A. Hoke, at Chambers, at Elizabeth City, N. 0., January 23, 1904. This is an appeal of the plaintiff from an order made by Judge Hoke in which he dissolved a restraining order theretofore made in the case.

<p>1. CORROBORATION OF WITNESSES — Evidence—Witnesses.</p> <p>In an action to correct a mutual mistake as to the amount of certain mortgage notes, declarations by the plaintiff, before the papers were drawn, are competent to corroborate his testimony as to the same.</p> <p>2. NONSUIT — Trial—Waiver—-Exceptions and Objections.</p> <p>The introduction of evidence by the defendant after a motion to nonsuit at close of the evidence of plaintiff, waives the exception.</p> <p>3. EVIDENCE — Questions for Court — Questions for Jury — Reformation of Instructions.</p> <p>In an action to reform' a mortgage, the trial judge should not instruct the jury that the evidence is not strong, clear and convincing, there being sufficient evidence to submit to the jury.</p> <p>4. SUFFICIENCY OF EVIDENCE — Evidence—Reformation of Instruments.</p> <p>In this action to reform a mortgage on account of the mutual mistake of the parties thereto, the evidence is sufficient to be submitted to the jury.</p>

<p>ActiON by F. W. Hargett against J. E. Bell, heard by Judge Cr. 8. Ferguson, at Chambers, at Morganton, N. O., February 1, 1903.</p>

<p>CONTRACTS — 'Na/oigable "Waters — Constitutional Law — Const. U. 8., * Art. I, see. 10 — The Code, see. 2757.</p> <p>The judgment in this case heretofore rendered by the supreme court is but the construction of a contract, and the violation of the constitution of the United States relative to the impairment of the obligation of a contract.</p>

<p>1. EXECUTORS AND ADMINISTRATORS — Evidence—Execution.</p> <p>The evidence in this case to sell land for assets, in which the defendant pleaded a judgment lien and execution from a certain county, is sufficient to show that the execution was issued as claimed.</p> <p>2. ADVERSE POSSESSION — Execution—Deeds—Color of Title.</p> <p>The possession of a person whose land is sold under execution and ■ deed made to the purchaser, is adverse to the purchaser, but the original deed is not color of title after the sale.</p> <p>3. EVIDENCE — Trusts—Parol—Execution■—The Code, sees. $48, %60, $68, 504.</p> <p>The proof to establish that the purchase of property at sheriff’s sale on execution was for the use of the judgment debtor continuing in possession must be strong, clear, and convincing.</p> <p>4. ADVERSE POSSESSION — Remainders—Estates.</p> <p>Adverse possession cannot be predicated of possession of real property by grantees of the life-tenant, as against the remainder-men, during the life of the life-tenant.</p> <p>Walker and Douglas, JJ., dissenting in part.</p>

<p>PetitioN to rehear this case, reported in 132 N. C., 755.</p>

AotioN by Cowan, McClung and Company against W. 5. Roberts, heard by Judge W. A. Hohe and a jury, at May, Term, 1903, of the Superior Court of Buncokbe County. This action was brought to recover the sum of two thousand dollars alleged to be due by the defendant on a guaranty.

<p>ActioN by S. W. Isler against 0. Brock and others, heard by Judge B. B. Peebles, at September Term, 1903, of the Superior Court of Wayne County.</p>

<p>ActioN by the Humphrey-Gibson Co. against M. E. Robinson and another, heard by Judge B. B. Peebles and a jury, at September Term, 1903, of the Superior Court of Wayne County.</p> <p>This action was brought by the plaintiffs, who are real estate brokers, to recover damages arising out of an alleged breach of contract by the defendants. The complaint is as follows:</p> <p>1. That the plaintiffs, E. A. Humphrey and W. J. Gibson, constitute a partnership as brokers, middlemen and agents in negotiating trades fox the sale, exchange and purchase of real estate and other properties, and were such partners and so negotiating at the times hereafter mentioned.</p> <p>2. That during the early part of 1902 the defendant Mary O. G. Kirby was the holder of sis notes of The East Goldsboro Land and Investment Oo. for $2,000 each with accrued interest.</p> <p>3. That during the early part of said year of 1902 the defendant Mary O. G. Kirby asked the plaintiffs if they could not negotiate some trade for her by which she could reduce said notes to cash, or invest said notes in real estate that would bring her in a larger income monthly; said notes running one, two, three, four, five and six years, and only the interest on each note payable as it fell due.</p> <p>4. That in compliance with such request, the plaintiffs saw J. E. Southerland, the owner of the real estate hereinafter described, and told him of the desire of the defendant Kirby to invest her notes in real estate, and thereupon said Southerland authorized the plaintiffs to sell to defendant Kirby the following described property (description of land) for the sum of $10,155 in said notes including interest, clear of all commissions, attorney’s fees and expenses.</p> <p>5. That during the negotiation as aforesaid, the defendant Kirby knew that the plaintiffs were representing South-erland in the sale of his said real estate, and Southerland knew that the plaintiffs were representing said defendant in the effort to invest her said notes, and it was understood and agreed with the said defendant that the plaintiffs were to look to Southerland for their commissions and compensation for negotiating said transaction.</p> <p>6. That in said transaction the plaintiffs had no authority to close the trade for either party except upon terms that were agreeable to said parties, which had to be made known to the parties respectively for their approval, and their agency consisted merely in bringing the parties together in order that they might consummate such trade as was acceptable to each party respectively.</p> <p>I. That the defendant M. E. Robinson acted as agent of the defendant Kirby in said negotiation, and as such agent agreed with the plaintiffs to pay Southerland the sum of $12,300 for the above-described real estate, which payment was to be made by delivery of said notes to Southerland with accrued interest, amounting to $13,440, and the plaintiffs were to pay to the defendant Kirby $1,140 in cash, all of which notes, with the exception of $10,155, which was to be paid to Southerland as the purchase price, were to belong to the plaintiffs as their compensation for negotiating said transaction in lieu of commissions.</p> <p>8. That in compliance with said agreement the plaintiffs had executed by Southerland and wife and duly proved and acknowledged, with the privy examination of Addie Souther-land, wife of J. E. Southerland, properly taken, a good and indefeasible deed in fee-simple with covenants of warranty to said land, and tendered the same to the defendant Kirby, and offered to pay the $1,140 difference in value between the notes and the purchase price of said land to said Kirby, and she through her agent, Robinson, refused to comply with said contract and deliver said notes and accept said deed and money, and repudiated and refused to carry out said contract, to the plaintiffs’ damage $2,045.</p> <p>9. That said Robinson stated to the plaintiffs that he would not carry out said contract and that they might bring a suit, and that he would pay any damage for which defendant Kirby might be held liable for the breach of said contract. "Wherefore, the plaintiffs demand judgment for $2,045 and costs, etc.</p> <p>The defendants in their answer denied the material alie-gations of tbe complaint, and specifically denied tbat tbe contract for tbe purchase of tbe land bad been made.</p> <p>After tbe pleadings were read, it was admitted tbat neither of tbe defendants signed any writing touching tbe purchase of tbe land mentioned in tbe pleadings, and it being further admitted tbat tbe plaintiffs did not disclose to either of tbe defendants tbat Southerland was getting only $10,155 for tbe land, and tbat tbe plaintiffs were to get tbe balance of tbe purchase-money, to-wit, $2,145, tbe Court intimated tbat it would charge tbe jury tbat under such circumstances tbe plaintiffs could not recover of tbe defendants.</p>

<p>INJUNCTION — Trespass.</p> <p>Where plaintiffs, suing to restrain defendants from cutting timber on certain lands, showed possession under color of title for thirty years, defendants claiming merely under an entry on the land as vacant, entitling them to a grant from the state, were not entitled to an injunction pendente lite restraining plaintiffs from cutting timber.</p>

<p>AotioN by Elisba Porter against T. J. Armstrong, beard by Judge G. 8. Ferguson, at January Term, 1904, of tbe Superior Court of PeNder County.</p> <p>Tbe plaintiff instituted tbis proceeding against tbe defendant by filing bis petition in tbe office of tbe Clerk of tbe Superior Court and issuing a summons in accordance witb tbe provisions of chapter 30, section 1297, of Tbe Code, alleging ownership of a tract of “swamp, flat or low land”— particularly described — known as tbe “Pigford farm.” That tbe defendants were tbe owners of said land adjoining and “below tbe said Pigford farm.” That a portion of bis land was ditched, cleared and under cultivation and was subject to inundation and sog. It could not be drained except by clearing or cutting out a canal, known as tbe Strawberry canal, etc., which was cut through the defendant’s land, etc., and constitutes the only natural outlet to the waters of Pigford farm. The plaintiff prayed that commissioners be appointed pursuant to chapter 30 of The Code.</p> <p>The defendants Armstrong and Mrs. Durham’s answer admitting the ownership of the land by the plaintiff and defendants, denies that the plaintiff’s land is “swamp, flat and low land.” They deny that the plaintiff’s land is subject to inundation and that it cannot be conveniently drained except in the manner pointed out by the petitioner. They also deny certain averments in regard to the use of the canal. They aver that the canal is not cut through their land; that it stops some distance before it reaches the plaintiff’s land. They allege that the plaintiff has diverted his water and has violated certain contracts, and they say that the plaintiff “has been harassing these defendants with suit after suit in court, and the said suits have been appealed to the Supreme Court of North Carolina, and it has been decided more than once that the petitioner has no right to drain into the Strawbery canal, and these defendants plead the same as an estoppel against the petitioner having any relief herein.”</p> <p>They further say that the petition is not filed in good faith and for the bona fide purposes as alleged in said petition, but for the purpose of obtaining for the petitioner the right to drain the Strawberry canal water which the plaintiff has diverted from its natural course and thereby injured the defendant; and that the petition is filed for no other purpose than to harass and annoy the defendants, etc.; that the plaintiff has other means of draining his land than through the defendants’ land.</p> <p>When the cause came on for hearing upon the petition and answer, the defendants made a motion that the cause be sent to the Superior Court and placed upon the trial docket to try the issues of fact raised by the answer. They also insisted that a plea in bar had been set up in the answer which was to be'passed upon before any commissioners could be appointed. The Clerk allowed the motion and transferred the cause to the civil issue docket of the Court, and the plaintiff excepted and appealed to the Judge.</p> <p>At January Term, 1904, of the Superior Court, the Judge presiding affirmed the judgment of the Clerk, denied the plaintiff's motion that commissioners be appointed, and ordered certain issues to be submitted to the jury.</p>

<p>ActioN by J. E. Hughes and others against W. T. Clark, heard by Judge Frederick Moore and a jury, at November Term, 1903, of the Superior Court of Pitt County.</p>

ActioN by I. C. Carter and others against L. R. White, heard by Judge W. B. Council and a jury, at September Term, 1903, of the Superior Court of Cubeituce: County. Tbe plaintiffs, trustees of Swan Island Olub, prosecute this action against tbe defendant for an alleged trespass upon tbe land described in tbe complaint. They demand judgment for damages and other relief.

<p>ActioN by Robert D. Gilmer, Attorney-General, against the Holly Shelter Railroad Company, heard by Judge George S. Brown, Jr., at Chambers, in Wilmington, on December 2, 1903.</p>

<p>ActioN by Orphia Millsapa and others against G. D'. Estes, beard by Judge W. A. Hoke and a jury, at July Term, 1903, • of the Superior Court of SwaiN County.</p>

<p>ISSUES — 7erdiet—Trial—Judgment—New Trial.</p> <p>A new trial will be granted where the issues answered by the jury are immaterial and the material issues under the pleadings are not answered.</p>

<p>1. PARTITION — Limitations of Actions — Owelty — Execution — The Oocié, secs. 186, 168, 15%, 158.</p> <p>The issuing of an execution on a decree charging owelty in partition is barred within ten years.</p> <p>2. PARTITION — Limitations of Actions — Otcelty—Actions.</p> <p>A proceeding for leave to issue execution on a judgment charging lands with owelty in partition is an “action” within the meaning of the statute of limitations.</p>

<p>Aoticw by J. E. Rodman and others against J. "W. S. Robinson, beard by Judge TF. B. Allen, at September Term, 1903, of the Superior Court of PeNder County.</p>

<p>1. GRANTS — Recordation—Public Lands.</p> <p>The registration of a grant from the state, which described the land by metes and bounds and stated that the grant was in the same form as another named registered grant, was not defective because of the failure to copy the entire grant.</p> <p>2. INEANTS — Contracts—Limitations of Actions — Deeds.</p> <p>Three years after majority is a reasonable time within which an infant must disaffirm a deed, and this is true though the deed passes only a remainder and the life-tenant is in possession.</p>

<p>ActioN by E. L. McGowan against J. R. Davenport and others, heard by Judge ^Frederick Moore and a jury, at November Term, 1903, of the Superior' Court of Pitt County.</p>

<p>ActioN by W. B. Bryan against the Southern Railroad Company, heard by Judge B. F. Long and a jury, at May Term, 1903, of the Superior Court of Catawba County.</p>

ActioN by Matthew Burwell against B. T. Brodie, heard by Judge G. 8. Ferguson and a jury, at October Term, 1903, of the Superior Court of Vance County. The present plaintiff was the tenant or cropper on the present defendant’s land during the years 1901 and 1902 under a farming contract by the terms of which he was to have one-half of the crop made on the land.

<p>ActioN by L. P. Tapp and another against E. L. Dibrell and another, heard by Judge W. B. Allen and a jury, at September Term, 1903, of the Superior Court of LeNOIR County.</p>

<p>For former opinion in this ease and headnotes thereto, see Gwaltney v. Assurance Society, 132 N. C., 925.</p> <p>Petition to rehear this ease dismissed.</p> <p>Montgomery and Walker, JJ., dissenting</p>

<p>TAXATION — Interstate Oommeree — Acts 190S, eh. 247, see. 56■ — Const. V. B., Fourteenth Amendment — Const. N. C., Art. V, see. 3— Constitutional Law — Licenses.</p> <p>An act taxing every meat packing house doing business in the' state $100 for each county in which such business is carried on is valid.</p>

ActioN by tbe Indian Mountain Jellico Goal Company against tbe Asheville Ice and Coal Company, beard by Judge W. A. Ilolce and a jury, at May Term, 1903, of tbe Superior Court of Buncombe County. This action was brought to recover tbe sum of $361.54 alleged by tbe plaintiff to be due from tbe defendant for coal sold and delivered to it in tbe months of February and March, 1899.

Actiok by Voorbees, Miller & Company against J. A. Porter, beard by Judge E. B. Jones and a jury, at September Term, 1903, of tbe Superior Court of BuNCOmbe County.

<p>INDICTMENT against AY. TI. and J. IT. Butts, beard by Judge Frederick Moore, at June Term, 1903, of the Superior Court of Halifax: County.</p>

<p>LIMITATIONS OF ACTIONS — Nuisance—Agency.</p> <p>An employee who erects a nuisance in a water-way for his employer cannot be indicted, therefor after the expiration of two years.</p>

<p>1. INTOXICATING LIQUORS — Statutes — Caption ■— Acts 1008, ch. 3Jf0‘ — Acts 1908, ch. S88.</p> <p>Acts 1903, eh. 349, sec. 2, making- the place of delivery to the purchaser of intoxicating liquors the place of sale, applies to the whole state, notwithstanding the limitation in the title of the act to certain counties.</p> <p>2. VENUE — Intoxicating Liquors — Const. Ü. 8., Sixth Amendment— Acts 1908, ch. 81/9 — Jury.</p> <p>Under Acts 1903, ch. 349, sec. 2, making the place of delivery to the purchaser of intoxicating liquors the place of sale, an indictment at the place of delivery is not prohibited by the sixth amendment to the constitution of the United States.</p> <p>Douglas, J., dissenting.</p>

INDICTMENT against George Capps, heard by Judge W. B. Council and a jury, at February Term, 1904, of the Superior Court of Beaueoet County. The defendant was indicted in the Court below for the murder of Augustus Tuten, and having been convicted of murder in the second degree appealed to this Court.

<p>1. INSTRUCTIONS.</p> <p>It is not essential that the exact words of a request for instructions should be given, even when correct, if substantially given.</p> <p>2. INSTRUCTIONS.</p> <p>Requests for instructions containing recitals not found in the evidence should not be given.</p> <p>3. DYING DECLARATIONS — Evidence—Weight of Evidence — Experts.</p> <p>The weight of dying declarations and the credibility of testimony of medical witnesses in relation to the condition of the deceased at the timfe of making dying declarations are questions for the jury.</p> <p>4. ARGUMENT OE COUNSEL — Judge—Exceptions and Objections—</p> <p> Appeal. </p> <p>An objection to a statement of the trial judge of the contention of the state, such argument having been used by the solicitor and not objected to, cannot be made for the first time on appeal.</p> <p>5. INSTRUCTIONS — Jury.</p> <p>A recommendation by the trial judge to the jury not to consider the case until the next morning is not error.</p>

<p>INTOXICATING DIQUORS — Elections—Acts 1895, oh. 159 — Acts 1899, oh. 507 — Acts 1901, oh. 89 — The Oode, seo. B740 — Licenses.</p> <p>Under Acts 1901, eh. 89, see. 76, it is no offense for a person who has license to retail spirituous liquors to sell liquors on an election day.</p>

<p>1. JURY — Grand Jury — Challenges—The Code, sees. 11%%, 11%5, 11/fl— Quashal.</p> <p>There is sufficient evidence in this case upon which to base the findings of fact of the trial judge, and upon such findings the motion to quash the indictment on account of alleged discrimination against the negro race in revising the jury list was properly overruled.</p> <p>2. JURY — Indictment—Taxation—Grand Jury.</p> <p>The irregularity in the county commissioners failing to make the prepayment of taxes a qualification for persons on the jury list, though the subject of censure, is not ground for quashing an indictment found by a grand jury drawn therefrom.</p> <p>3. CONFESSIONS — Admissions—Evidence.</p> <p>In this prosecution for homicide the statement of the accused as to the killing, not being induced by threats or promises, is admissible.</p> <p>4. EVIDENCE — Homicide—Trades.</p> <p>The evidence of footprints near the scene of the crime is admissible in a prosecution for murder, though it is not shown that accused made tracks at the time similar to those found.</p> <p>5. ARGUMENT OF COUNSEL — Evidence—Homicide.</p> <p>The argument of counsel for the state, in this prosecution for murder, that the accused waylaid the deceased is justified by the evidence.</p>

<p>YIDEIST CE — H omioide.</p> <p>In a prosecution for homicide, where defendant’s father testified that defendant was at home at seven o’clock on the night of the shooting, and that he, the father, went to bed early and did not see defendant until the next morning, and deceased was shown to have been shot about nine o’clock that night, testi- ’ mony of a state’s witness that a few days after the shooting the father said, on hearing that the shooting was done at nine o’clock, that he might as well give the ease up, as he could not account for defendant after seven o’clock, was inadmissible, for it was neither contradictory of any statement of defendant’s father nor connected with any fact concerning the shooting.</p>

IhdictMBNT against Thomas Green, heard by Judge Frederick Moore and a jury, at November Term, 1903, of the Superior Court of CRAyen County. The defendant was indicted for assault and battery upon Mack Hudson.

<p>1. ASSOCIATIONS — Benevolent Associations — Embezzlement — The Code, sees. 101Jh 1017, 724, 76Jh 1399, 1402,1617, 1618, 1865, 1868.</p> <p>An association organized for the benefit of its members solely is not a benevolent or religious association under see. 1017 of The Code.</p> <p>2. ASSOCIATIONS — Benevolent Associations — The Code, see. 1017■— Embezzlement.</p> <p>The treasurer of an association having rendered a statement of his receipts and expenditures thereby complied with the provisions of The Code, sec. 1017, requiring him to render an “account,” and is not guilty of embezzlement.</p> <p>3. ASSOCIATIONS — Statutes—Construction—Embezzlement.</p> <p>In see. 1017 of The Code the words “benevolent” and “religious” qualify the words “society” and “congregation” as well as “institution.”</p>

<p>1. HOMICIDE — Premeditation and Deliberation — Questions for Jury— Questions for Court — Aels 1S9S, oh. 85 — Intent.</p> <p>In a prosecution for homicide, whether certain evidence shows premeditation and deliberation is a fact to be found by the jury, and not a conclusion of laiv to be drawn by the court.</p> <p>Clark, C. J., dissenting.</p>

<p>INDICTMENT against W. R. Munn, heard by Judge II. B. Bryan and a jury, at November Term, 1903, of the Superior Court of CumbeRland County.</p>

<p>INDICTMENT against Bobert Blackman, heard by Judge M. H. Justice and a jury, at November Term, 1903, of the Superior Court of Union County.</p>

<p>1. HOMICIDE — Evidence—Deadly Weapon.</p> <p>A requested instruction that if there was an opportunity to use a deadly weapon, but one was not used, it was strong evidence against premeditation, is properly modified by striking out the word “strong.”</p> <p>2. HOMICIDE — Premeditation and Deliberation.</p> <p>No particular time is necessary to constitute the premeditation and deliberation requisite to the crime of murder in the first degree.</p> <p>3. HOMICIDE — Deliberation and Premeditation.</p> <p>Deliberation and premeditation on the part of accused on a prosecution for murder may be inferred from such circumstances as ill-will, previous difficulty between the parties and declara-, tions of an intent to kill after or before the crime.</p> <p>4. HOMICIDE — Premeditation and Deliberation — Questions for Jury.</p> <p>Whether there is premeditation and deliberation in a prosecution for murder is a question for the jury.</p>

<p>1. HOMICIDE — Evidence—Premeditation and Deliberation.</p> <p>In this prosecution for murder there is sufficient evidence of premeditation and deliberation to be submitted to the jury.</p> <p>2. HOMICIDE — Malice—Presumptions.</p> <p>It is- not error to instruct that, defendant having admitted that he killed deceased with a deadly weapon, there was no evidence sufficient to rebut the presumption of malice, and that defendant was guilty at least of murder in the second degree.</p> <p>3. HOMICIDE — Premeditation—Harmless Error.</p> <p>Where the jury found that defendant killed deceased with premeditation, an instruction that defendant under certain circumstances was guilty at least of murder in the second degree, if erroneous, was not prejudicial.</p> <p>4. JURY — Infants—Appeal.</p> <p>The setting aside of a verdict because a juror was under twenty-one . years of age is discretionary with the trial judge and not reviewable on appeal.</p>

<p>INDICTMENT against G. Clark, heard by Judge B. F. Long and a jury, at Spring Term, 1903, of the Superior Court of Ashe County.</p>

<p>INDICTMENT against Clarence Potter, heard by Judge B. F. Long and a jury, at Spring Term, 1903, of the Superior Court of Watauga County.</p>

<p>INDICTMENT against Lester Liles, beard by Judge H. R. Bryan and a jury,,at January Term, 1904, of tbe Superior Court of Union County.</p>

<p>1. BIGAMY — Declarations—Evidence—The Code, sec. 988.</p> <p>In a prosecution for bigamy an admission of the defendant is competent to prove the first marriage.</p> <p>2. BIGAMY — Evidence.</p> <p>In a prosecution for bigamy, in which defendant had testified that he drove his first wife away, his reasons for so doing were not admissible.</p> <p>3. BIGAMY — Burden of Proof — Evidence.</p> <p>Under The Code, sec. 988, the burden is on the defendant, in a prosecution for bigamy, to show that he did not know that his former wife was living.</p> <p>4. BIGAMY — Husband and Wife.</p> <p>Under The Code, see. 988, the absence of the wife for seven years, caused by being driven away by her husband, does not justify him in remarrying without making inquiry as to whether the wife was living.</p> <p>5. INDICTMENT — Statutes—Proviso.</p> <p>Where a proviso in a statute withdraws the case from the operation of the body of the section it need not be negatived in the indictment.</p> <p>6. BIGAMY — Statutes—Proviso—Burden of Proof.</p> <p>Where a proviso withdraws a ease from the operation of the body of the statute, the burden is on the defendant to bring himself within the proviso.</p> <p>7. BIGAMY — Intent..</p> <p>A belief by the defendant that his first wife is dead or his ignorance of her being alive, she having been away for less than seven years, is no defense in a prosecution for bigamy.</p> <p>Douglas, <7., dissenting.</p>

<p>PUBLIC OFFICERS — Sheriffs—Counties—The Code, seo. 1009.</p> <p>Under The Code, see. 1009, a sheriff is not guilty'of a misdemeanor where he purchases county claims at less than their value, but for the benefit of the county, at the instance of the county commissioners.</p>