Volume 136 — North Carolina Reports

ActioN by J. O. Méekins against the Norfolk and Southern Railroad Company, heard by Judge W. A. Hóke and a jury, a.t Spring Term, 1904, of the Superior Court of Tyr-rell County. From a judgment for the plaintiff the defendant appealed.

ActioN by L W. Graves against the Norfolk and Southern Itailroad Company, heard by Judge W. A. Solee and a jury, at January (Special) Term, 1904, of the Superior Court of PasquotaNK County. From a judgment for the plaintiff the defendant appealed.

ActioN by J. P. Copland against the American De Forest Wireless Telegraph Company, heard by Judge George H. Brown and a jury, at May Term, 1904, of the Superior Court of Daxus Cbunty. From a judgment for the plaintiff the defendant appealed.

Tins was an issue of devisavit vel non, beard by Judge W. A. Ilolce and a jury, at April Term, 1904, of tbe Superior Court of Beaupobt County. The will of E. R. Peterson was executed on the 25th day of August, 1898, in which he devised and bequeathed to his wife, Hattie A. Peterson, his entire real and personal estate, appointing her executrix thereto. He died on September 6 of the same year, and the will was admitted to probate in the Superior Court on September 10th.

<p>ActioN by James Brown against Samnel Cogdell, heard by Judge T. A. McNeill at April Term, 1904, of the Superior Court of Pitt County. From a judgment for the plaintiff the defendant appealed.</p>

<p>WITNESSES — Evidence—Husband and Wife — The Code, sec. 590.</p> <p>Where the husband of an administratrix, not being a party to the action and having no interest in the event thereof, testified, it did not render admissible testimony of the defendant as to transactions between the deceased and the defendant.</p>

<p>Action by J. G. Sears against T. L. Whitaker, heard by Judge Frederick Moore and a jury, at June Term, 1904, of the Superior Court of Halifax County. From a judgment for the defendant the plaintiff appealed.</p>

ActioN by J. Mahoney and others against P. C. TVler, heard by Judge W. B. Council and a jury, at February Term, 1904, of tbe Superior Court of Bee.tie County. From a judgment for tbe defendant tbe plaintiff appealed.

ActioN by G. L. Wilkinson and wife against H. O. Boyd, beard by Judge George U. Brown, at August Term, 1904, of tbe Superior Court of Beaufort County. From a judgment for tbe defendant the plaintiffs appealed.

<p>1. EVIDENCE — Waters and Water-courses — Questions for Jury.</p> <p>In this action to recover damages for the diversion of water, the evidence is sufficient to be submitted to the jury.</p> <p>2. NONSUIT — Evidence—Acts 1897, eh. 109 — Acts 1899, ch. 131.</p> <p>On a motion for nonsuit, the evidence of the plaintiff must be taken as true and construed in the light most favorable to him.</p> <p>3. WATERS AMD WATER-COURSES — Damages.</p> <p>The act of the defendant in cutting a ridge or natural water-shed between two streams, causing the waters of one to flow into the waters of the other, which formed the boundary of plaintiff's land, the new channel being cut into the old at a right angle, so that the water would be carried by its own momentum across the channel and onto the plaintiff’s land, renders the defendant liable for the resulting damage.</p>

ActioN by John L. Hinton against H. J. Jones, heard by Judge W. A. Hoke and a jury, at January (Special) Term, 1904, of the Superior Court of Pasquotank County. This was an action -to recover possession of a house and lot. The plaintiff sold to the defendant the lot in question on October 23, 1899, for' the sum of $6,000 and a policy of insurance upon the life of the said Jones in the sum of $4,000.

Action by P. H. Williams against J. G-. Hughes and others, heard by Judge W. B. Council and a jury, at Fall Term, 1903, of the Superior Court of Camden County. Prom a judgment for the defendant the plaintiff appealed.

<p>AotioN by W. F. Grubbs against- W. B. Ferguson and Company, beard by Judge M. II. Justice and a jury, at August Term, 1903, of tbe Superior Court of NORTHAMPTON County. From a judgment for tbe plaintiff tbe defendants appealed.</p>

ActioN by W. H. Harrington and others against M. O. Rawls and others, beard by Judge Frederick Moore, at November Term, 1903, of the Superior Court of Pitt County. Erom a judgment for the plaintiffs the defendants appealed.

ActioN by E. B. Stallings and wife against O. L. Ellis, beard by Judge Frederick Moore and a jury, at January Term, 1904, of the Superior Court of Eeanklin County. The plaintiff alleged that her father, H. G. Leonard, died in May, 1901, and defendant qualified as his administrator. That during the last four and a half years of his life he was almost helpless on account of age and disease. That during this time he lived with her and that she gave him care and attention.

ActioN by the Virginia-Oarolina Chemical Company against B. W. Edwards, heard by Judge Frederick Moore, at December Term, 1903, of the Superior Court of Greene County. Controversy submitted without action, under section 567 of The Code. In order to present the point decided in this Court it will be necessary to state only the substance of the case agreed.

<p>For former judgment, see 133 N. C., 785.</p>

ActioN by C. A. Williams against the Western Union Telegraph Company, heard by Judge W. B. Council and a jury, at March Term, 1904, of the Superior Conrt of Eah-Kax County. The plaintiff brought this action to recover damages for failing to correctly transmit a telegram. The telegram as sent was in the following words: “RICHMOND, Va., Nov. 11, 1903. J. II. Duei-iam, Tillery, N. C. Have Dr. Register meet me at Weldon Friday.

<p>For head-note to this ease, see Chemical Company against Edwards, at this term, 136 N. C., 73.</p>

<p>1. APPEAL — Amendments—Pleadings.</p> <p>An appeal lies from a refusal to allow an amendment of pleadings on the ground of a want of power.</p> <p>2. AMENDMENTS — Pleadings — Limitations of Actions — The Code, seo. 238 (subsec. 2), 278, 1888.</p> <p>Where a complaint in an action for wrongful death discloses that the death and wrongful act occurred in another state, but fails to state the law of such state, an amendment pleading it does not state a new cause of action, although the period of limitation prescribed by the foreign statute has elapsed.</p> <p>3. Semble, If not pleaded and proved, the presumption is that the common and statutory law of another state is the sam'e as that of this state.</p>

<p>ActioN by II. A. Davis, administrator, against tbe Seaboard Air Line Railway, beard by Judge W. B. Council and a jury, at May Term, 1904, of tbe Superior Court of VaNOE County. From a judgment for tbe plaintiff tbe defendant appealed.</p>

<p>EXEMPTIONS — Attachment.</p> <p>In an attachment the defendant is entitled to claim his exemptions out of the atcached property at any time before it is appropriated to the payment of the debt.</p>

<p>ActioN by H. C. Carr against tbe Commissioners of Dplin County, beard by Judge Frederick Moore, at August Term, 1904, of tbe Superior Court of Dupitn County. From a judgment for tbe plaintiff tbe defendant appealed.</p>

ActioN by tbe White Sewing-Machine Company against K. P. Hill & Son, heard by Judge Frederick Moore and a 'jury, at January Term, 1904, of the Superior Court of Franklin County. From a judgment for the plaintiff the defendant appealed.

PetitioN of Q. B. Cooper and others for the construction of the will of AV. A. Cooper, heard by Judge W. B. Council at chambers, at Henderson, N. C., May 26, 1904. Erom a judgment construing the will, all the petitioners, excxept B. A. Cooper and wife, appealed.

AotioN by R. R. Woodlief against T. H. AVoodlief and others, beard by Judge Frederich Moore and a jury, at January Term, 1904, of the Superior Court of FRANKLIN County. From a judgment for the plaintiff the defendant appealed.

ActioN by J. M. Dean and others against J. E. Gupton, heard, by Judge Frederick Moore and a jury, at April Term, 1904, of the Superior Court of Feaniclin County. From a judgment for the defendant the plaintiffs appealed.

AotioN by Alice Jones and others against J. T. Sugg and others, heard by Judge M. II. Justice, at February Term, 1904, of the Superior Court of Greene County. From a judgment for the defendant the plaintiff appealed.

<p>ActioN by D. C. Powell against W. T. Bentball and wife, beard by Judge W. B. Council and a jury, at April Term, 1904, of tbe Superior Court of Hertford County.</p> <p>The plaintiff sued tbe defendants jointly upon two causes of action: 1st. That they wrongfully and maliciously alienated tbe affections -of bis wife and enticed her away from him. 2d. That they harbored bis wife after being forbidden to do so. Tbe jury rendered a verdict against tbe plaintiff on tbe first cause of action. On tbe second cause of action they found for tbe "plaintiff and awarded him $1,500 damages. Tbe defendants denying tbe material allegations of tbe complaint say that the plaintiff’s wife left borne with bis consent to seek work. That she refused to return to him. That their conduct was without malice to tbe plaintiff, and because of their relationship to bis wife in good faith and to assist a neglected daughter and sister in her unhappy condition, etc.</p> <p>The plaintiff testified that he married Eunice Parker during the year 1891 and lived with her at Aulander about six years. He failed in business in 1892. That he kept boarders and hired horses. In 1891 he left Aulander and his wife went to live with her sister, the feme defendant, near the town of Aulander. She asked permission to go. Said that her sister wanted her to help trim hats, and he thought that it was better for her to do so. That he was traveling and away from home a great deal. That defendants and he were friendly and up to that time he had always supported his wife. After she went there all went on smoothly and he visited her. He went to Greensboro to live at the suggestion of the defendants, Penthall and wife, who said it was a good place to live, and plaintiff could make money there. He corresponded with his wife, both writing frequently. Plaintiff introduced certain letters indicating affectionate regard on the part of his wife. He received a letter from her which he destroyed, which troubled him very much. He left Greensboro immediately for home; went direct to defendants’ house, where he met his wife, who greeted him kindly but seemed to be in distress. He stayed there until night; his wife said she was in great trouble and wished to be moved away. Said that she wanted to go at once. He asked her to go to ride with him, she consented, but her sister, Mrs. Benthall, objected — said that she wanted his wife to help on some work. His wife said she would go some other time. He saw defendant Benthall later in the evening. Mrs. Benthall seemed mad at plaintiff; said things could not go on as they were, that he was not trying to provide for his wife. He took supper there; wife went on porch with him; Mrs. Benthall called his wife in, slammed the door, locking it. His hat was on the inside and Mr. Parker got his hat and he left. The next day he received a letter from his wife which was put in evidence.. She wrote that she had decided not to have anything more to do with him unless he made a great change in himself; that she had tried him for six years and the prospect of his making a living had been gloomy for a long time; that she was not going to be supported any longer by some one else’s money. She had rather work for her own living than live that way. That she had hoped for a change, etc. That her people were willing to take care of her but were not willing to take care of him, and that he must not come any more until she sent for him. That she was not mad with him but did not want him to bother her any more until he could do her some good. She had considered the matter well and that no- one was putting her up to it, she %vas acting of her own free-will; said that she would return the “things” which she has; that he had spent the lot which her father had given her.</p> <p>Witness said that he went at once to defendant and saw his wife in the presence of Mrs. Benthall, and asked his wife why she wrote the letter. She replied that it was to protect herself. He said that he had come to move her away with the furniture. She said that she would not go; he said that he would get a divorce — she objected. He said this to see what effect it would have on her. He testified to his affection for his wife. His furniture, horse and buggy were at Benthall’s. While he was insisting on his wife’s going with him Benthall came up and said if they could not agree they had better divide up. She agreed to give up half the property and witness took some of it away and took out process for the balance; when the officer went witness did not go in. Saw his wife and took hold of her, telling her that she must go with him. She pulled back, crying a little. Witness told her she had to go; said she would go if he would let her dress. Witness agreed to this, but would not let her go in the house; told her that she could go in the office near by. Clothes were brought and she dressed and got in a cart with witness. Before she went in the office Benthall interfered — started towards witness rolling up his sleeves; said be did not want anything like that going on there. Officer stopped him and Mrs. Benthall took hold of his wife’s arm and tried to take her from the witness. His wife went to his father’s and stayed there two days and nights. Warrant was taken out against the witness for assault. He and his wife lived as man and wife for two days. Went to the trial and witness was convicted and fined. After the trial his wife went with her brother to the defendants’. The arrangement with Benthall was that witness’ wife was to help her sister trim hats and not pay board. Witness was to pay board when 'there. He identified a letter which he had given to a school-teacher, and said that he got the letter back by mail at once. It was addressed to Mr. Ben-thall at his postoffice, which was kept in his store by Mrs. Benthall. It forbade the defendants from harboring, employing or giving shelter or food to plaintiff’s wife. That he was ready, willing and able to take care of her. The letter was lost — -was dated £)ecember, some five months after the trouble with his wife. There was other testimony tending to corroborate plaintiff.</p> <p>Mrs. Powell testified for defendants that she went to defendants’ October, 1895, and lived there twenty-two months before she separated from her husband. She went there because her husband thought it best to do so. She denied several of the statements of her husband. No one counselled her to leave her husband or" prevented her from living with him. Neither of the defendants did so. When they divided property he asked her for the engagement ring — said it would help him in getting another girl. She described the treatment of her when she dressed in the office. He pulled her down — she ^had on morning wrapper and during the scuffle the buttons were torn off. Told him that she would rather die than go with him. He said she had to go; would take her dead or alive. Mr. Newsome said: “Don’t let the woman dress in tbe road.” He agreed to let ber go in the office. He went with her in the office, holding her arm. Went with him because she could not help it. She had lost confidence in him. When she first mentioned to the Ben-thalls her intention of separating from her husband, they told her to use her own pleasure; they would not advise her about it.</p> <p>Defendant W. T. Benthall testified that he married Mrs. Powell’s sister. Powell came to see him and made arrangements to move his wife to witness’ house and to keep his furniture. Told him that he would charge nothing as she was his wife’s sister, that she could help his wife about the house. Did not ask plaintiff to come or let his wife come. He asked witness to take her. When he went to Greensboro Powell borrowed $10 from witness. When he came back said he had twenty-sis cents. Witness gave Mrs. Powell no advice about leaving her husband; knew nothing of any trouble between them. On the night he stayed at witness’ house he said: “What is the matter with Eunice?” Witness asked him what he meant — said she did not talk to suit him. Powell never seemed out of humor with witness until Mary Parker carried a message; he then talked as if some one was trying to take his wife away. Witness told him he had nothing to dp with it; that he would take his wife to the station any time she wanted to go. Powell wrote a note about harboring his wife; read it to Mrs. Powell. When he read it he said: “Eunice, you will have to move.” She said: “If you and my sister will not let me stay I will have to go somewhere. I will live in a hollow tree before I will live with Mr. Powell again.” Witness testified that she was 'his wife’s sister and he could not drive her from his house. Mrs. Benthall said nothing. Heard about Powell’s publishing notices forbidding any one to let his wife stay in their house. Told his wife. Mrs. Benthall testified that when plaintiff was pulling his wife in the road she heard her screaming and went to her, she was down in the road in the mud, her clothes torn almost off, her body was exposed. Went to her but was repulsed by plaintiff. Gave no advice or suggestion at any time to sister about leaving her husband, or prevented her from returning to him. Had let her live in the house because she was her sister and wanted to stay. There was other corroborative testimony. At the close of the evidence defendants renewed their motion for nonsuit, which was refused. Defendants excepted. The defendants asked the Court to charge the jury: “The defendants had the right to permit their sister to live in their house, and to give her such countenance, comfort and support as her condition seemed to require, although she had separated from her husband without just cause, and although the plaintiff, after said separation forbade the defendants to give shelter, comfort and support and protection to his wife, and the jury should answer the second issue ‘No,’ unless they find that the defendants wrongfully induced the plaintiff’s wife to leave her husband, alienate her affections from him, notwithstanding the defendants did give to the plaintiff’s wife, after she left her husband, such shelter, comfort and support.” The Court refused the prayer and defendants excepted.</p> <p>The Court in charging the jury upon the second issue explained the law regarding the right of the husband to the society, etc., of the wife, and of her duty to live with him and submit to his control, etc. Also, as to the duty of the husband to support his wife and by what treatment he would forfeit his right to her society, etc., after which his Honor skid: “Now, gentlemen, applying these principles to the case at bar, the Court charge you that if you find from the evidence that the defendants or either of them allowed and permitted the plaintiff’s wife to live at the home of Mrs. Benthall, after the plaintiff had objected to her doing so, such objection Laving been made known to the defendants, or either of them, then yon should answer the second issue ‘Yes/ unless you find that the wife of the plaintiff left him on account of cruel treatment to her, or from one of the causes to which I have before referred as grounds .upon which the wife may leave and separate from her husband.”</p> <p>The Court further charged the jury that the burclen was on the defendants to show justification on the part of the wife for leaving the plaintiff against his will. That the fact that- defendants were the brother-in-law and sister of plaintiff’s wife could not justify them or either of them in allowing her to remain at the house of Mr. Benthall against the will and after objection by the husband, but they must show that the wife was justified in leaving.</p> <p>To these several instructions the defendants duly excepted and from a judgment for the plaintiff appealed.</p>

<p>ActioN by the Mutual Neserve Fund Life Association against S. H. Scott, heard by Judge 0. H. Allen, at May Term, 1904, of the Superior Court of Obaven County. From a judgment for the defendant the plaintiff appealed.</p>

AotioN by Ellen Morrisett and others against N. W. Stevens, beard by Judge W. A. IIolee, at Spring Term, 1904, of tbe Superior Court of CeaveN County. Erom a judgment for tbe defendant tbe plaintiffs appealed.

ActioN by R. R. Woolief against A. B. Wester and others, beard by Judge Fredericlc Moore and a jury, at January Term, 1904, of the Superior Court of Ekaniclin County. This case was a special proceeding for partition, of land, which was transferred from the Clerk to the Superior Court and placed on the civil issue docket for the trial of issues joined, and A. B. Wester, mortgagee of the interest of one of the co-tenants, was made a party.

<p>ActioN by S. H. Britt and. others against tbe Rowland Lumber Company, beard by Judge G. 8. Ferguson, at May Term, 1904, of tbe Superior Court of Sampson County. From a judgment for tbe plaintiffs tbe defendant appealed.</p>

<p>AotioN by W. A. Hardison, against tbe Dennis Simmons Lumber Company, heard by Judge Frederick Moore, at March Term, 1904, of the Superior Court of MaetiN County. From á judgment for the defendant the plaintiff appealed.</p>

<p>BANKS AND BANKING — -Bonds—Suretyship—Principal and Surety.</p> <p>Where the easnier of a bank is elected “for one year,” and the recitals in his fidelity bond refer to his term of office, the surety on his loond is not liable for defalcations committed after the expiration of the term of office to which the bond refers.</p>

AotioN by W. H. Bowen against George Hackney and others, beard by Judge 'W. B. Council, at May Term, 1904, of the Superior Court of WilsoN County. This is a special proceeding for the partition of land, which was brought before the Clerk and by him transferred under the statute to the Superior Court for the trial of issues joined between the parties, a jury trial having been waived.

ActioN by II. W. Jackson, trustee, against W. H. Martin and others, beard by Judge George II. Brown, at April Term, 1901, of the Superior Court of Waee County. From a judgment for the defendants the plaintiff appealed.

AotioN by AV. D. Bowen, executor of Orpah Bowen, against George Hackney and others, beard by Judge W. B. Council, at February Term, 1904, of tbe Superior Court of AVilson County. From a judgment for tbe defendants tbe plaintiff appealed.

ActioN by R. H. Gatlin and. wife against G. Serpell, heard by Judge Frederick Moore and a jury, at April Term, 1904, of the Superior Court of Edgecombe County. Erom a judgment for the plaintiff for less than the relief demanded, he appealed.

ActioN by Allen Bros. & Eord against the D. A. Tompkins Company, beard by Judge G. 8. Ferguson and a jury, at October Term, 1903, of the Superior Court of EbaNeliN County. The defendant, a corporation doing business at Charlotte, N. 0., sold to the plaintiffs certain machinery to be used in the manufacture of oil from cotton seed and had the same carried to the premises of the plaintiffs in the town of Louis-burg, N. 0.

ActiON by A. A. McKeithan against tbe American Telephone and Telegraph Company, beard by Judge R. B. Pee-bles and a jury, at February Term, 1904, of tbe Superior Court of Cumberland County. From a judgment for tbe plaintiff tbe defendant appealed.

ActioN by Miriam Fisber against the Traders Mutual Life Insurance Company, beard by Judge JR. B. Peebles, at Spring Term, 1904-, of the Superior Court of Bbunswick County. This action was brought to recover the amount of an insurance policy. The summotis was served on the Secretary of the Corporation Commission, under the provisions of Act of 1901, chap. 5.

AotioN by J. TL Johnson against L. A. Cameron and others, heard by Judge R. B. Peebles and a jury, at May Term, 1904, of the Superior Court of Cumberland County. From a judgment for the plaintiff the defendants appealed.

<p>COSTS — Witnesses.</p> <p>Where, pending a re-trial, an action was compromised under an agreement that the defendant should pay the costs, the defendant was not liable for the costs and expenses of witnesses subpoenaed by the plaintiff, but not sworn, examined or tendered to the defendant.</p>

<p>1. COMPROMISE AND SETTLEMENT — Payments ■ — ■ The Code, sec. 574 — Tender.</p> <p>Where a creditor agrees to accept a lesser amount in satisfaction of his debt, the lesser amount to include advertising, the amount of which was to. be agreed upon by the creditor, the failure of the debtor to pay the amount of the compromise, the creditor having refused to state the amount of advertising he would take, does not invalidate the compromise.</p> <p>2. REFERENCES — Findings of Court.</p> <p>Where the rulings of a trial judge affect only the conclusions of law of a referee, and he finds no facts, the findings of fact of the referee remain in force.</p>

ActioN by the Orion Knitting Mills against the United States Fidelity and Guaranty Company, heard .by Judge G. 8. Ferguson at June Term, 1904, of the Superior Court of Lenoir Oonnty. From a judgment- for the plaintiff both parties appealed.

<p>ActioN by Jane Godwin against the Carolina Telephone and Telegraph Company, heard by Judge G. S. Ferguson, at March Term, 1904, of the Superior Court of I/enoie County. Erom a judgment for the defendant the plaintiff appealed.</p>

<p>ActioN by Noel G-ainey against tbe Western Union Telegraph Company, beard by Judge B. B. Peebles and a jury, at February Term, 1904, of tbe Superior Court of Cumbee-uand County.</p> <p>Tbis action was brought to recover damages for the negligent failure to deliver a telegram, which plaintiff alleges caused him great mental anguish. Ur. W. E. Gainey, brother of the plaintiff, died in Mayo, Ela., on November 17, 1901. There being no telegraph office at Mayo, his widow sent to Live Oak, Ela., which is twenty-three miles from Mayo, the following telegram addressed to the plaintiff:</p> <p>“Me. Noel GaiNey,</p> <p>(P. 0. Idaho), Fayetteville, N. G.</p> <p>The Doctor is dead. Write if yon can come. Died at 7 :45 to-day.</p> <p>Mes. W. E. Gaotey.”</p> <p>This telegram was handed by Mrs. Gainey to O. B. Clark at Mayo, with the request that he have it sent from Live Oak over defendant’s lines to the plaintiff and it was delivered by Clark to the operator of defendant at Live Oak at' about 4 P. M. the day Dr. Gainey died. Olark paid sixty-five cents, the amount charged for transmission, and nothing was said about any extra charge-for a special delivery outside of the company’s free delivery limits at Fayetteville, to which place the message was addressed and sent. Plaintiff lived near Idaho, which is his postof6.ce and about one mile and a half from Fayetteville. The message was transmitted from Live Oak on November 17 and received at Fayetteville about 5 :30 P. M. on the same day, which was Sunday afternoon. It was then mailed by the operator to the plaintiff at Idaho and was delivered to him by the postmaster the next day about 7 o’clock P. M. These are the material facts. At the close of the testimony the Court, on motion of the defendant’s counsel, dismissed the action, under the statute, and plaintiff excepted and appealed.</p>

ActioN by J. Rogerson and others against the Greenleaf-Johnson Lumber Company, heard by Judge Frederick Moore, March Term, 1904, of the Superior Court of Mabtin County. This action was brought to recover damages for cutting timber, on land claimed by tbe plaintiffs under tbe will of Joseph Oorey. He devised land to bis daughter, Sarah F. Rogerson, for her life, and added that if she died leaving no heirs of her body the land should revert to his family.

ActioN by tbe National Cash Register Company against K. P. Hill and others, heard by Judge Frederick Moore and a jury, at January Term, 1904, of the Superior Court of Eeaniclin County. From a judgment for the plaintiff the defendants appealed.

ActxoN by Eula M. Parker against W. D. Brown, heard by Judge W. B. Council and a jury, at February Term, 1904, of the Superior Court of ILebtbobd County. From a judgment for the plaintiff the defendant appealed.

ActioN by E. P. Eason and others against I. E. Dortcb and others, heard by Judge M. il. Justice, at Eebruary Term, 1904, of the Superior Court- of Geebne County. Erom a judgment for the defendant the plaintiff Eason appealed.

ActioN by J. W. Beal against tbe Durham and Charlotte Railroad Company, heard by Judge II. B. Bryan and a jury, at February Term, 1904, of the Superior Court of ChatiiaM County. From a judgment for the plaintiff the ■ defendant appealed.

<p>1. LIMITATIONS OF ACTIONS — Remainders—Estates—Adverse Possession.</p> <p>The statute of limitations does not run against a- remainderman until the death of the life tenant.</p> <p>2. JUDICIAL SALES — Sales—Executors and Administrators.</p> <p>A confirmation of a sale of the estate of a decedent is a condition precedent to the exercise by an executor of the right to convey title.</p>

ActioN by the State on relation of A. L. Brooks, Solicitor, against A. A. Holton, heard by Judge O. M. Ooolce, at February Term, 1904, of the Superior Court of Guiutoed County. From a judgment for the plaintiff the defendant appealed.

Actiow by E. Turrentine against A. J. Wellington, beard by Judge G. M. Cooke and a jury, at March Term, 1904, of the Superior Court of Obang-e County. Prom a judgment for the plaintiff the defendant appealed.

<p>1. INSURANCE — 'Sales—Questions for Jury.</p> <p>. The question whether the title to goods had passed, within the meaning of a clause in an insurance policy stipulating a forfeiture in case of-change of title, is for the jury.</p> <p>2. SALES — Insurance.</p> <p>Where a sale of goods is made, and nothing more is to he done, and the price is agreed upon, but nothing said about payment or delivery, future risks of fire are upon the purchaser, although he cannot take the goods away before he pays the price.</p>

ActioN by John Barker against Dellia ]VL Barker, beard by Judge O. M. Goolce, at February Term, 1904, of tbe Superior Court of Guileord County. From an order awarding the defendant alimony pendente lite the plaintiff appealed, and from an order by Judge T. J. Shaio granting an injunction to stop the sale of the property and to stay the execution pending the appeal the defendant appealed.

■ ActioN by L B. Christian, administrator of A. B. Wosser, against the Atlantic and North Carolina Bailroad Company, hoard by Judge U. B. Bryan, at October Term, 1904, of the Superior Court of Durham County. From an order allowing the plaintiff to sue in forma pauperis, the defendant appealed.

ActioN by B. N. Houston against tbe Greensboro Lumber Company and J. T. B. Shaw, receiver, beard by Judge O. M. Co olee, at January Term, 1904, of the Superior Court of Dubham County. From a judgment for the plaintiff the defendant lumber company appealed.

<p>EXECUTORS AND ADMINISTRATORS — -Limitations of Actions — The Code, secs. 1S6, 158, 140$, 1488 — Aots 1891, ch. 113. .</p> <p>An action against an executor or administrator is barred in ten years after the two years allowed for the settlement of estates have expired.</p>

<p>1. MORTGAGES — Aclmoioledgments—Husband and Wife — Acts 1889, oh. 889 — Fraud.</p> <p>Where a privy examination is properly certified it will not be held invalid because procured by fraud, duress or undue influence, unless the grantee had notice thereof or participated therein.</p> <p>2. DEEDS — Estates—Remainders—The Oode, secs. 1325, 1829.</p> <p>A deed to a person and to “her heirs and assigns during her natural life and at her death to belong to her bodily heirs, to have and to hold in fee-simple forever,” conveys a fee-simple title to the grantee named.</p>

<p>AotioN by J. H. Andrews against A. J. Wellington, heard by Judge O. M. Go olee, at March Term, 1904, of the Superior Court of ORANGE County. From a judgment for the plaintiff the defendant appealed.</p>

<p>ActioN by J. H. Hill against Thornton Dalton and others, heard by Judge W. A. Hoke and a jury, at January Term, 1904, of the Superior Court of FoRSyth County. From a judgment for plaintiff the defendants appealed. '</p>

<p>ActioN by E. M. Redd against the Edna Cotton Mills, heard by Judge W. B. Allen, at AYinston, N. C. Erom a judgment for the defendant the plaintiff appealed.</p>

<p>PLEADINGS — Amendments—Torts—The Code, sees. 218, 267, 276 — Actions.</p> <p>It is not error to allow a plaintiff to amend his complaint, assumed to state a cause of action on contract, so as to declare on a tort arising out of the same transaction.</p>

ActioN by Walter Pratt & Company against G. W. Chaf-fin & Company, beard by Judge W. B. Allen and a jury, at Spring Term, 1904, of the Superior Court of StoKes County. The plaintiffs sued the defendants upon an account for goods sold and delivered pursuant to a printed order of October 16, 1903, to which the firm name was signed by one of the copartners.

ActioN by the Globe Oil Company against the Messick Grocery Company, heard by Judge W. B. Allen and a jury, at March Term, 1904, of the Superior Court of Forsyte County. From a judgment for the plaintiff for less than the relief demanded he appealed.

ActioN by Bufus Tow against J. F. Hamilton and wife, beard by Judge O. M. Ooolce and a jury, at July Term, 1904, of tbe Superior Court of Bandolph County. From a judgment for tbe plaintiff tbe defendants appealed.

<p>DAMAGES — 'Nominal—Waters and Water-courses.</p> <p>In an action for damages for maintaining a dam, an instruction that to entitle the plaintiff to nominal damages he must show damages to an “appreciable” extent is erroneous, he being entitled to nominal damages if the water is ponded on his land to any extent.</p>

<p>ActioN by J. P. Wingate against D. L. Parker, heard by Judge O. M. Goohe, at Statesville, N. 0., August 16, 1904. From a judgment for the defendant the plaintiff appealed.</p>

Actioet by Julia F. How&ll and another against T. S. Parker and others, heard by Judge O. U. Allen, at March Term, 1904, of the Superior Court of Stanly County. From a judgment for the plaintiffs the defendants appealed.

<p>DEEDS — Evidence—Recordation—Acts 1885, ch. Up — The Oode, sec. W/5.</p> <p>A deed executed prior to the registration act of 1885, ch. 147, but not registered - until after the registration of a mortgage from the same grantor, is competent evidence to show title in the grantee, he being in possession before the passage of the said act.</p>

ActioN by Annie Harrison and husband against the Western Union Telegraph Company, heard by Judge 0. H. Allen and a jury, at February Term, 1904, of the Superior' Court of EowaN County. From a judgment for the plaintiffs the defendant appealed.

ActioN by J. J. Stewart against the North Carolina Railroad Company, heard by Judge 0. II. Allen and a jury, at February Term, 1904, of the Superior Court of Rowan County. From a judgment for the defendant the plaintiff appealed.

ActioN by Richard Eames against O. A. Armstrong and others, heard by Judge M. H. Justice and a jury, at May Term, 1904, of the Superior Court of RowaN County. From a judgment for the plaintiff the defendants appealed.

<p>1.ISSUES — Trial.</p> <p>Where the issues submitted are sufficient, the refusal to submit those tendered by defendant is not error.</p> <p>2. CARRIERS — Penalties—Bills of Lading.</p> <p>In an action to recover a penalty against a carrier for failing to ship one of four packages consigned for shipment under a single bill of lading, the defendant is estopped to claim that the mismarking of three of the packages was a sufficient excuse for failing to ship the fourth.</p> <p>3. STATUTES — Penalties—The Code, sees. 8761,, 1967, 1761,, 1767 — Acts 1901, oh. 681, — Acts 1908, eh. 590.</p> <p>The repeal of a statute does not affect an action brought thereunder, before the repeal, for any penalty incurred.</p> <p>4. CARRIERS — Penalties—Police Power — Railroads.</p> <p>A statute providing a penalty for failure or delay in the shipment of freight is valid.</p>

ActioN by S. 0. Blair and others against S. F. Ooaldey, beard by Judge B. B. Peebles, at August Term, 1904, of the Superior Court of TjnioN County. This was a proceeding to alter a public road over the land of the defendant, brought before the Board of Commissioners of Union County and heard in July, 1904, on or prior to the 8th day of that month.

<p>1. PARTNERSHIP — Marshaling Assets — Exoneration.</p> <p>Where parties execute a mortgage on two tracts of land, one of which they afterwards sell to a corporation for a consideration that the corporation will pay the partnership debt, creditors of the corporation can not compel the creditors of the partnership to sell the tract not conveyed to the corporation before receiving their pro rata part of the assets of the corporation.</p> <p>2. JUDGMENTS — Deeds—Marshaling Assets.</p> <p>Partners, who conveyed property to a corporation of which they were directors and withheld the deed from record for two years, are not entitled to avail themselves of a stipulation in the deed for the payment of certain partnership debts, as against their individual creditors who record judgments before the said registration.</p> <p>3. CORPORATIONS — Partnerships—Marshaling Assets.</p> <p>Where a corporation assumed the existing debts of a partnership as a part consideration for a conveyance of partnership property, the debts of the corporation, which became insolvent, were not entitled to a preference over those of the partnership.</p>

PbtitioN by Emmett Boyett for a writ of habeas corpus, beard by Judge 0. 8. Ferguson, in Kaleigh, September 28, 1904. From an order denying the writ, the petitioner appealed.

<p>ActioN by A. W. Avery against J. W. Stewart, beard by Judge O. H. Allen and a jury, at May Term, 1904, of tbe Superior Court of Cüaven County.</p> <p>This action was brought to establish and enforce a parol trust. The plaintiff alleges in his complaint that John Humphrey and his wife, being the owners of a tract of land in Craven County containing about ninety-seven acres, contracted to sell the same to him at the sum of five hundred dollars and that he, not then being able to pay the stipulated price, informed the defendant Stewart of his contract with the Humphreys and requested the defendant to buy the land for him and allow him three years to pay the purchase-money; that the defendant agreed to this proposal, with the proviso that plaintiff should pay him one hundred dollars for the “accommodation,” and the plaintiff assented to this proviso, and thereupon promised and agreed to pay the defendant the one hundred dollars and the purchase-money within three years at six per cent, interest; that afterwards, on October 28, 1901, Humphrey and his wife conveyed the land to the defendant, and on December 10 of the same year the defendant, in violation of his agreement with the plaintiff and of the trust assumed by him, conveyed the land to one W. J. Arnold, who has taken possession of the premises under his deed; that Arnold agreed to pay for the land much more than the defendant paid the Humphreys for the same, and more than the plaintiff was required to pay the defendant under their contract; and that Arnold has made certain payments upon the purchase-money which he agreed to pay to the defendant, the amount of which payments is not set forth. The material allegations of the complaint are denied in the amended answer. The Court submitted to the jury two issues,'as follows : 1. “Did John Humphrey and wife contract with plaintiff to sell him the land as'alleged in the complaint ?” 2. “Did the defendant, knowing that Humphrey and wife had contracted to sell tbe land to the plaintiff, and before contracting with Humphrey for the purchase of the land and before receiving a deed therefor agree with the plaintiff to buy the land for him, as alleged in the complaint?”</p> <p>As the case turns upon the question whether there was any proof of the trust, it is necessary to state the evidence. The plaintiff, in his own behalf, testified: “I live three miles from Cove Creek and know the defendant and John Humphrey. John Humphrey lives ten miles from me. I made a contract with Humphrey about August, 1901. I met him here and asked him what he would take for the land referred to in the complaint, and he said he would take five hundred dollars. I told him I did not have that much money, but if I could get some one to take hold of it and help me out I would take the place and he could consider the place sold. The next day I saw the defendant and told him what I had done, and asked him if he would let me have the money to buy. He asked me what I Avould give him to get it for me. I told him I would give him one hundred dollars in addition to five hundred dollars payable in three years at six per cent. He said he would get it for me, and said ‘you need not bother about it any further.’ Then he called Wallace’s attention (Wallace was his clerk and bookkeeper) and told him to write to Humphrey that he wanted to see him about the land when he came to town. He told me to go and look at the land. I looked at the land and reported to the defendant. I told him the land was run down to some extent but it was a good investment. I wrote Humphrey a letter; about a year later I inquired of Humphrey about the letter; he said .he did not remember receiving it but got a postal card later. I notified him that he could sell the place to Stewart. I wrote Humphrey a letter telling him he could sell to Stewart. (Defendant objected to all evidence of the contents of the letter, objection sustained. Plaintiff excepted). I received a letter from Humphrey which is lost. I cannot find it. I have made a diligent search for it. I usually keep my papers in a trunk, as I am a farmer and do not keep many papers. I have looked through the trunk, looked through all my clothes and looked through my house and everywhere it could possibly be. I am sure it has been destroyed. Humphrey said in his letter (it might have been a card) that he wanted me to hurry the matter up, as he wished to complete the deal by a certain time in October — -I do not remember the day. I came to New Bern a few days after that and the defendant was away, and I asked Wallace to call his attention to the land trade. I did not see the defendant any more until after he had bought the land. He bought it in October for five hundred dollars from Humphrey and his wife. After the defendant returned and had bought the place I had a conversation with him. I went into his office and asked him about the place and he told me that he had bought it. We talked a considerable time about it. I asked him about complying with our agreement about it, and about making our trade. I told him I would give him what I had promised him — six hundred dollars at six per cent, interest. Then he said to me: ‘I can get a heap more than that for it; I cannot sell it for that.’ I asked him if he was going to fly from our agreement. Then he said: ‘You know I can’t afford to sell it for that money when I can get a good deal more for it.’ This is about the end of our conversation. The defendant refused to convey the land to me, but conveyed it to Arnold, who is in possession.</p> <p>The plaintiff offered paragraph three of the complaint, filed February 5, 1903, together with paragraph three of the answer thereto, filed April 25, 1903. The defendant objected for that the Court had allowed the defendant to amend his answer as filed May 4, 1904. The Court refused to allow the evidence unless the plaintiff would also offer therewith paragraph three of the amended answer; to this the plaintiff excepted. Here the plaintiff rested. The defendant moved to dismiss and for judgment as in case of nonsuit under the act of 1891 and amendments thereto. Motion sustained. Plaintiff excepted and appealed.</p>

AotioN by J. H. LeRoy against H. Jacobosky, S. H. Weisel and others, heard by Judge W. A. Iiohe and a jury, at March Term, 1904, of the Superior Court of PasquotaNK County. V LAI KTTI Gm/s APPEAL. The defendants II. Jacobosky, A. Jacobosky and S. II. Weisel were on March 13, 1903, the owners as tenants in common with Rebecca Weisel and Sadie Weisel, the last three being infants, the said II. Jacobosky being their general guardian, residing in the State of Virginia.

<p>1. PERPETUITIES — Wills—Alienation—Estates.</p> <p>A will providing for a life estate in realty and that it shall not be sold during the life of the life tenant is void as against public policy.</p> <p>i. WILLS' — Estates—Remainders—Descent and Distribution.</p> <p>Where a testator devises land to a person for life and at her death to be managed for five years by an administrator, and at the expiration of the five years to go to the remaindermen, the re-maindermen take a vested estate immediately on the death of the life tenant.</p> <p>3. WILLS — Remainders—The Oode, see 1325.</p> <p>Where land is devised to a person for life and at her death to vest in the children of the testator during their natural lives and at their death to vest in their lawful heirs, such children take a fee on the death of the life tenant.</p> <p>4. SPECIFIC PERFORMANCE — Wills—Estates—Remainders.</p> <p>In this action for specific performance under a will herein set ont the life tenant and the two remaindermen may convey a fee-simple estate.</p>

<p>ActioN by J. D. Bottoms against the Seaboard Air Line Railroad Company, heard by Judge C. M. Cooke and a jury, at November Term, 1903, of the Superior Court of NORTHAMPTON County. From a judgment for the plaintiff the defendant appealed.</p>

ActioN by C. M. Owen against P. P. Mexoney, beard by Judge M. U. Justice, at May Term, 1904, of tbe Superior Court of Rowan County. This was a civil action commenced by plaintiff against defendant to recover damages for defendant’s failure to carry out and comply with his part of a contract as a condition precedent to the formation of a partnership.

ActioN by tbe Hilton Lumber Company against the Atlantic Coast Line Kailroad Company, heard by Judge George H. Brown and a jury, at Spring Term, 1904, of the Superior Court of New Hanover County. From a judgment for the defendant the plaintiff appealed.

ActioN by Willie II. Green against the Western Union Telegraph Company, heard by Judge Fredericlc Moore, at January Term, 1904, of the Superior Court of Halifax County. The material facts are thus briefly stated by the defendant: This is the plaintiff’s appeal from a judgment sustaining the defendant’s demurrer.

<p>TELEGRAPHS — Damages—Mental Anguish.</p> <p>The sender of a telegram is entitled to damages for mental anguish occasioned by the negligent failure of the telegraph company to deliver the same, though the suffering would not have occurred had the company not informed him of the non-delivery.</p>

ActioN by C. E. ITedrick against the Southern Railroad Company, heard by Judge O. II. Allen and a jury, at February Term, 1904, of the Superior Court of Davidson County. From a judgment for the plaintiff the defendant appealed.

ActioN by S. M. Daniel against the Atlantic Coast Line Railroad Company, heard by Judge M. Ií. Justice, at March Term, 1904, of the Superior Court of Pitt County. This is an action for malicious prosecution and false arrest and imprisonment. The plaintiff was accused and prosecuted by the agent of the defendant at Greenville of stealing money from its office at that place of which the agent had charge.

ActioN by tbe Carolina Plumbing and Heating Company against Saidy Hall, beard by Judge 17. B. Allen and a jury, at October Term, 1904, of tbe Superior Court of Meck-lenburg County. Erom a judgment for the defendant the plaintiff appealed.

<p>ActioN by R. A. Lee & Co. against tbe St. Louis, Iron Mountain and Southern Railway Company, heard by Judge M. H. Justice and a jury, at May Term, 1904, of the Superior Court of MbcKlbnbuRG- County.</p> <p>This action was prosecuted by the plaintiffs for the recovery of damages incurred by the failure of the defendant to deliver a lot of cotton in a reasonable time. The defendant company issued to the plaintiffs its bill of lading at Little Rock, Arkansas, for a hundred bales of cotton to be shipped to New Orleans, La., “shipside”, consigned to the order of R. A. Lee & Co. The jury under the instruction of the Court found that the defendant negligently failed to deliver the cotton at New Orleans within a reasonable time. On the question of damages tbe plaintiffs proposed to show that by reason of the failure to deliver the cotton “shipside” at New Orleans within a reasonable time, they were unable to get the cotton loaded on a certain ship, and that the steamship company owning the ship required the plaintiffs to pay for dead freight room to the amount of $83.30 between New Orleans and Genoa, Italy, to which place the plaintiffs intended to ship the cotton. The defendant objected, the testimony was excluded and the plaintiffs excepted.</p> <p>The plaintiffs proposed to show that they were, by reason of the delay in shipping the cotton, compelled to pay to their customer, to whom they had sold the cotton for late shipment, $86.23. This testimony was excluded upon defendant’s objection and plaintiffs excepted.</p> <p>It appeared that the plaintiffs had invested in the cotton $4,387.88; that the delay in shipping, after allowing a reasonable time, from Little Rock to New Orleans was thirty-five days. The Court instructed the jury that the plaintiffs were entitled to recover interest on the amount invested for the time of the delay. Erom a judgment for this amount, the plaintiffs, having excepted, appealed.</p>

ActioN by L. F. Tillery and. another against E. M. Land, John EL Taylor and others, heard-by Judge G. M. Goolce and a jury at May Term, 1904, of the Superior Court of Nash County. From the judgment rendered the plaintiffs and defendants Land and Taylor appealed.

<p>ActtoN by W. J. Moore against the Charlotte Electric Railway, Light and Power Company, heard by Judge Thomas A. McNeill and a jury, at March Term, 1904, of tbe Superior Court of Mecklenburg County. From a judgment for tbe plaintiff tbe defendant appealed.</p>

ActioN by L M. Patterson against R. A. Ramsey, heard by Judge O. II. Allen and a jury, at February Term, 1904, of the Superior Court of IREdkll County. This action was brought to recover possession of a tract of land.

INDICTMENT .against E. J. Davis and others, beard by <Judge R. B. Peebles and a jury, at March Term, 1904, of the Superior Court of Bidden County. From a judgment on a verdict of guilty the defendant appealed.

INDICTMENT against- Richard Daniel, _heard by Judge G. M. GooJce and a jury, at November Term, 1903, of tbe Superior Court of Halifax County. Indictment for assault with a deadly weapon. Edgar Alston, a witness for -the State, testified: “I went to my bog-pen one Sunday at Littleton, about two’ months ago, taking them slops. Just below tbe bog-pen, when I got there, was tbe defendant and bis brother-im-law, Mr. Burton.

INDICTMENT against A. J. Leary, beard by Judge G. S. Ferguson and a jury, at Spring Term, 1904, of the Superior Court of Pamlico County. Erom a verdict of guilty and judgment thereon the defendant appealed.

<p>INDICTMENT against Dave Moore, beard by. Judge 'Frederick Moore and a jury, at August Term, 1904, of the Superior Court of Duplin County.</p> <p>' The defendant was indicted in the Superior Court for an assault with metallic knuckles on Jacob Dobson, and pleaded former conviction and not guilty. In support of the first plea the defendant introduced in evidence a proceeding before a justice of the peace, from which it appeared that on the same day on which the assault was committed he made affidavit before the justice charging himself with a simple assault on Dobson. The justice issued a warrant for Moore, on which is this entry: “Said defendant voluntarily came up to be tried and dealt with as the law directs.” There was no return of any officer. Moore was then sworn and examined by the justice concerning the assault, and upon his own evidence was adjudged to be guilty and fined one dollar and taxed with the costs. It was admitted at the trial below that the defendant “swore out the warrant against himself, and that the justice, without notice to the injured party or any one else, and without hearing any testimony except the defendant’s own statement, disposed of the case.”</p> <p>The Court charged the jury that if they believed the evidence the trial and conviction before the justice were a nullity and the plea of former conviction was not sustained. Defendant excepted. There was evidence tending to show that defendant assaulted Dobson with, metallic knuckles, and there was also evidence tending to show the contrary and that only a simple assault was committed. The jury convicted the defendant of a simple assault, and from the judgment on the verdict he appealed.</p>

INDICTMENT against J. AV. Eoberson, heard, by Judge Frederick Moore and a jury, at April Term, 1904, of the Superior Court of Franklin County. From a judgment of guilty upon a special verdict, the defendant appealed.

INDictment against I. W. Eoberson, heard by Judg$ Frederick Moore and a jury, at April Term, 1904, of the Superior Court of Franklin County. From a judgment of guilty upon a special verdict, the defendant appealed.

Senas Kacias by tbe State against Lawrence Morgan and others, heard by Judge Frederick Moore, at February Terra, 3 904, of the Superior Court of WinsoN County. This is a proceeding by scire facias to enforce a forfeited recognizance.

INDICTMENT against G. W. Twiford and another, beard by Judge W. A. Holce and a jury, at Spring Term, 1904, of the Superior Court of CueRituctí County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against E. A. Thornton, heard by Judge G. S. Ferguson and a jury, at May Term, 1904, of the Superior Court of Sampson County. A criminal action for an, assault, heard in Superior Court on appeal from a justice of the peace. The defendant was a school-teacher and the prosecutor one of his pupils about ten years old. The boys of the school had been guilty of misconduct and the defendant warned them and threatened to punish any repetition of it.

INdictmeNt against Will Adams, heard by Judge George II. Brown and a jury, at March Term, 1904, of the Superior Court of Wake County. From a verdict of guilty and judgment thereon the prisoner appealed.

INDICTMENT against Joseph Hankins, heard by Judge G. 8. Ferguson and a jury, at April Term, 1904, of the Superior Court of New Iíanovee County.

INDICTMENT against Thomas Lewis, heard by Judge G. IS. Ferguson and a jury, at June Term, 1904, of the Superior Court of Lenoie County. Erom a verdict of guilty and judgment thereon the defendant appealed.

INDICTMENT against Elizabeth Morgan and Samuel Ford, heard by Jiidge R. B. Peebles and a jury, at August Term, 1904, of the Superior Court of Union County. From a verdict of guilty and judgment thereon the defendants appealed.

INxixotmeNT against A. Van Pelt, W. T. R. Jenkins, C. A. Sherman, S. W. Henry and S. A. Sherman, hoard by Judge M. II. Justice at May Term, 1904, of the Superior Court of Rowan County.

INDICTMENT against Josiah and Joshua Pell, heard by Judge G. 8. Ferguson and a jury, at March Term, 1904, of the Superior Court of Lenoir County. Erom a verdict of guilty and judgment thereon the defendants appealed.

<p>INDICTMENT against George T. Huff, heard by Judge G. S. Ferguson and a jury, at July Term, 1904, of the Superior Court of Wake County.</p> <p>The defendant was indicted for an assault with intent to commit rape, and convicted by the jury of a simple assault. So much of the testimony as is necessary to present the exceptions is as follows:</p> <p>Mrs. Jones, the prosecutrix, testified that she lived at Fuquay Springs; that defendant came to her house about dark on the day of the alleged assault; that she was sitting in the door. She first thought it was her husband, and then thought it was Alex. Hobbs. He came up and said “Good evening1,” and she said “Good evening.” He asked for her husband, and she told him he was in the store. Defendant said he was not; came and put his foot on the door-step and said that Mr. Jones had gone to Chalybeate to arrest a man and would not return until 12 o’clock, and he had come to stay until he came back. “He told my little girl to hand him a match; he wanted to light a cigar. While she was gone the defendant took her by the hand and said “Let us go to bed.” Witness said “You must be crazy; you leave here.” Witness prepared supper, and while she and the children were eating the defendant came back; she saw him when he jumped up in the door. Mr. Arnold’s dog was under the house and barked. He told the dog to “hush”; said he would kill it; put his hand in his pocket when he said that. Witness was sitting feeding the baby — the table in front of her and the baby in her lap on her left arm. Defendant took hold of her by the hand; he pulled up a chair and sat down by her and put his hand in her bosom. She pushed it away and he put it back again and tried to put his hands under her clothes and she pushed them away; could not push him away because he was stronger than the witness. He was there ten or fifteen minutes. Witness saw her husband coming and told the defendant. She made no outcry because the defendant tried to shoot the dog and she was afraid that he would shoot her. When she saw her husband coming she told defendant she would tell him and he would kill defendant. He begged her not to tell him; he got up and sat down on the step. Defendant asked her husband to go to the store; that he wanted to buy something. They went to the store in a few minutes. Witness told her husband what defendant had done when he first came back from the store. Witness was asked in regard to her relations with a man in Florida and other men, all of which she denied.</p> <p>Defendant testified that he went to Jones’ house to get him to go to the store to get a bundle, and he asked Mrs. Jones if her husband was at home and she said “No.” lie asked her if he had gone to the store and she said “No.” She asked defendant to have a seat; that Mr. Jones would be back in a few minutes. She was sitting in the door, on the door-step. Defendant put his foot on the door-step and stood there. She took hold of his hand and said “she never expected to see him sunburned as badly as that.” While holding his hand she leaned over, and his hand might have touched her bosom. She made him a proposition; told him .to go out fifteen or twenty minutes, until she could lay the baby down, and she would come and meet him. Witness went down to the branch and waited a few minutes. He returned to the house and asked her why she did not come. She said “Wait awhile”; that she could not get the baby asleep. She said “Oome back another time,” and not to go anywhere else. Witness never offered to force her or take any liberties with her except what she invited. She said that she'had been wanting to meet witness for some time, and asked him if he got the word she sent him. Witness never went into the house, and he was not under the influence of liquor.</p> <p>The defendant introduced Benjamin Arnold, who testified that he lived at Fuquay Springs, sixty or sixty-five feet from the house of the prosecutrix; there was no obstruction between the two houses; he could see all that passed between defendant and Mrs. Jones. He was at home, sitting on the door-step with his wife. Defendant was standing on the ground with one foot on the door-step, and Mrs. Jones sat in the door; could not hear what they said; they were talking in low tones; ho told her good evening and left; went to the branch. Some time after he came back and sat in the door, and the witness got his banjo and sat in his door, then went to bed. Before defendant went off the first time, and while he was standing with his foot on the steps, witness called Mrs. Jones and asked her where her husband was; called pretty loud, but she did not answer. Defendant asked witness to give his reason for calling Mrs. Jones, and the State objected; objection sustained and defendant excepted. Witness said that he saw nothing that looked like an assault; could have seen it, as it was bright moonlight and there was no obstruction; that he and his wife were talking, and that Mrs. Jones could have heard the conversation if she had listened. Defendant offered to prove by the witness the conversation between him and his wife with reference to what they saw .and what they did in consequence thereof. Witness stated that he was going to call Mrs. Jones to keep her from doing wrong; that he called twice, and his wife told him to hush, that it was none of his business, and that in consequence of what he saw he got his banjo and sat in his door, but retired soon after, at his wife’s request. This testimony, upon objection by the State, was ruled out, and defendant excepted.</p> <p>Mrs. Arnold was introduced and testified the same as her husband. Defendant asked the witness: “In consequence of what you and your husband saw between defendant and Mrs. Jones, what did you and your husband do ?” Objected to and ruled out; defendant excepted. This was for the purpose of showing that the witness and her husband knew that an assignation was being made and that they tried to stop it; that witness prevented her husband from interfering.</p> <p>Erom a judgment upon a verdict of guilty the defendant appealed.</p>

INDICTMENT against Sam Smith, heard by Judge G. W. Ward and a jury, at October Term, 1904, of the Superior Court of Rladen County. The defendant was convicted of assault with intent to commit rape and sentenced to imprisonment in the State’s Prison for five years. The testimony of the prosecutrix was: “I know the defendant; he came into the cotton patch when I was at work last summer.