Volume 138 — North Carolina Reports

ActioN by W. H. McNeill against the Durham and Charlotte Railroad Company, heard by Judge G. W. Ward at the January Term, 1905, of the Superior Court of MooR,® County. Plaintiff recovered a judgment against defendant in the sum of $4,000 for injuries caused by its negligence and for costs. Defendant appealed to this court where the judgment was affirmed. There was no provision in the judgment for interest from the date of its rendition.

<p>ActioN by S. W. Lehew against F/ B. Hewett and others, heard by Judge Geo. H. Brown, Jr., and a jury at the September Term, 1904 of the Superior Court of Brunswick County.</p> <p>From a judgment for the plaintiff, the defendants appealed.</p> <p>This action was brought to correct a deed. Plaintiff alleged and introduced evidence to show that he bought the land from Frank Hewett in 1878 and paid for it out of his own money. He directed the deed to be made so as to convey the land to his wife, Mary B. Iiewett, and if she died first then to himself. Frank Iiewett drew the deed so that it conveyed the land to Mary B. Iiewett in fee without mentioning the plaintiff. There was evidence that plaintiff -and his wife had no children and that plaintiff took possession when the deed was executed and has held it ever since. His wife died in 1889. Plaintiff testified that he did not discover the mistake in the deed until 1897, a short time before this action was commenced. Defendant moved to non-suit the plaintiff under the statute. The motion was overruled and plaintiff excepted. Upon issues submitted, the jury found that plaintiff paid the purchase money for the land upon 'an agreement with Frank Hewett that it should be conveyed by deed to Mary B. Hewett, and if she died first then to the plaintiff, and that this clause was omitted from the deed by mutual mistake of the parties. There was judgment upon the verdict for the plaintiff, and the defendant having duly excepted, appealed and assigned the following errors:—</p> <p>1. “That the court erred in admitting the conversation between himself and Frank Hewett which was objected to on the ground (1) it was a contract concerning land and not in writing and (2) that it was not admissible under Section 590 of The Code as it was substantially a transaction between himself and his wife now deceased.”</p> <p>2. “That the judge erred in not holding that the evidence ,was not sufficient to be submitted to the jury to reform the deeds declared on or either of them.”</p> <p>3. “That the judge erred in not deciding that the evidence was not svifficient to justify the court in reforming the deeds or either one of thfem.”</p>

<p>Railroads — Proximate Cause — Fires—Damage— Instructions.</p> <p>1. The question as to proximate cause, under all the circumstances is necessarily one of fact for the jury, under proper instructions.</p> <p>2. The owner of premises is not bound to anticipate negligence of a railroad, and by way of prevention make provision against communication of fire.</p> <p>3. The fact that the plaintiff’s land did not adjoin the defendant’s right of way and the fire necessarily traversed the land of several intermediate proprietors before reaching plaintiff’s property did not per se absolve .the defendant from liability, but was a circumstance to be weighed in considering whether the defendant’s negligence was the proximate cause of the plaintiff’s damage.</p> <p>4. In an action for damages from fire set out by the defendant, if the fire caught on the defendant’s right of way by reason of the defendant’s negligence and spread across the lands of several intervening landowners to the plaintiff’s land 2% miles away, the defendant would be liable to the plaintiff for the damages sustained.</p>

<p>Appeal — Countercase—Time of Service — Correction— Certiorari.</p> <p>1. Neither this court nor the court below can change, without agreement of both parties, the requirements of section 550 of the Code, which provides that if the appellant’s case on appeal is not returned by appellee in five days “with objections” it shall be deemed “approved.”</p> <p>2. Where appellee’s counter case through inadvertence of counsel, was not served until the eighth day after service of appellant’s ease on appeal, a motion by appellee for certiorari will be denied though appellee produces a letter from the trial judge that appellant’s case is erroneous and if given an opportunity he will correct it.</p> <p>3. It is only when the trial' judge has settled the case on appeal, in the exercise of his proper jurisdiction, that this court, upon affidavit of error therein, and a letter from the judge that he wishes to make the correction, will give him such opportunity.</p>

AaTiosr by L. P. Tyson and others against J. P. Sinclair, and others, heard by Judge G. W. Ward at the Spring Term, 1904, of the Superior Court of Moore County. This was a civil action to compel the specific performance of a contract for the sale of land, heard upon the facts alleged and admitted in tbe pleadings. Tbe defendants appealed from tbe judgment rendered.

ActioN by O. L. Clark against tbe Deleware, Lacka-wanna and Western Railroad, beard by Judge Fred Moore and a jury, at the October Term, 1904, of the Superior Court of New HaNover County. From a judgment for the plaintiff, the defendant appealed.

<p>Special PkocebdiNG by S. B. Thompson and others v. T. E. Crump, beard by Judge M. II. Justice at Chambees, on Nov. 2oth, 1904. ■</p> <p>This is a special proceeding brought before tbe clerk of tbe Superior Court of Union County for tbe partition of certain lands. Tbe facts which present tbe particular question to be determined are not disputed and are as follows: J ames W. Thompson, deceased husband of T. E. Crump, one of tbe defendants in this action, by virtue of tbe will of bis father, L. B. Thompson, took and up to tbe time of bis death was possessed of two tracts of land consisting of 115 acres. Tbe item of tbe will; by which this land passed to J ames W. Thompson, is as follows “I give and bequeath unto my son, James W. Thompson all my lands which I now or may hereafter own for and during bis life and after bis death to bis lawful heirs, born of bis wife, and in case be shall have no such heirs to take the estate, in that case it is. my will and desire that it go to his full sister E. Bogan and children, and in case there be none of that class, then I allow it to go to James "W. Thompson’s half sister, O. E. Har-gett.” The petitioners and defendants in the special proceeding, with the exception of one Eedwine, who became the owner of a certain share by purchase, and T. E. Crump, widow, are the lawful children of James TV. Thompson. In answer to the petition for a sale and division of the 115 acre tract, which is the land mentioned in the will of L. B. Thompson, defendant, T. E. Crump alleges that she is entitled to dower therein. The clerk of the court, before whom the proceeding was commenced, ruled that she was not entitled to dower. The defendant appealed to His Honor, M. II. Justice, Judge, at Chambers, who affirmed the ruling of the clerk, and from his judgnlnet the defendant appeals to this court.</p>

ActioN by Duncan Kennedy -and others against Thos. W. Maness and others, heard by Judge B. B. Peebles and a jury at tbe September Term, 1904, of tbe Superior Court of Moore County. Erom a judgment in favor of tbe defendant, Maness, tbe plaintiffs appealed.

<p>ActioN by T. IT. Ramsbottom and T. B. Smith, trading as Ramsbottom & Smith, against Atlantic Ooast Line Railroad Company, heard by Judge Geo. H. Brown, Jr., and a jury, at the October Term, 1904, of the Superior Court of CouuMbus County. ‘From a judgment for the plaintiffs, the defendant appealed.</p>

ActioN by the Firemen’s Insurance Company and others against .the Seaboard Air Line Eailway heard by Judge B. F. Long, and a jury, at the October Term 1904, of the Superior Court of Wake County. Plaintiffs alleged that on the 19th day of October, 1902 certain cotton, upon which plaintiff companies had issued policies of insurance, was burned by the negligence of the defendant’s agents and servants.

ActioN by George P. Crutchfield against T. A. Hunter, Receiver of the Bank of Guilford, heard by Judge T. J. Shaw and a jury, at the Special January. Term, 1905, of the Superior Court of Guilpoed County. This was an action commenced on the 4th day of December 1903 to recover a debt. The plaintiff submitted to a non-suit upon an intimation of the court that the debt was barred by the statute of limitations and appealed.

Petition by defendant to rehear this case which was decided at Fall Term, 1904, no written opinion being filed. This was an action brought to recover damages for the killing of plaintiff’s intestate, who was run over by defendant’s train while lying on the roadbed of the defendant company.

<p>Elevator — Instructions—Defective Appliances — Disobedience of Orders — Res Ipsa Loquitur.</p> <p>1. It is error for a judge to base an instruction upon a hypothetical state of iacts or upon facts of which there is no evidence.</p> <p>2. In an action for damages for injuries received by the fall of an • elevator, an instruction which made the question of defendant's negligence turn wholly upon the defectiveness of the elevator, was erroneous where there was evidence that the plaintiff was injured solely by reason of his disobedience of orders.</p> <p>3. The rule of res ipsa loquiiw does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption m his favor, but it gives the plaintiff the advantage of a footing m the case or a basis of recovery and calls for proof from the defendant.</p>

<p>AotioN by W. S. Everett and wife against the Norfolk and Southern Railroad Company and another, heard by Judge Q. 8. Ferguson and a jury at the Spring Term, 1904, of the Superior Court of Pamlico County.</p> <p>The plaintiff brought action for damages sustained by failure of tbe defendants to deliver certain packages of freight, delivered to tbe defendant, Tbe Norfolk & Southern Railroad Company, at Elizabeth City, N. C., on October 22, 1901, to be transported for hire over tbe lines of tbe defendant Norfolk & Southern Railroad Company, via Norfolk, Va., to Tbomasville, N. C., on tbe Southern Railway. Tbe defendants did not deny that certain parcels or packages of freight delivered to tbe Norfolk & Southern bad not been delivered to tbe plaintiff on demand. Both defendants admitted that under tbe evidence, as it stood, each of them was liable to tbe plaintiff for .damages, but contended that tbe amount was only $30.</p> <p>Tbe following facts also appeared from tbe record: The goods were shipped on a released bill of lading, wherein they were valued at $5 per hundred, with a freight rate approved by tbe Corporation Commission. Tbe following were tbe approved rates on household goods calculated by 100 lbs. to be carried 100 miles:—</p> <p>1. Unlimited in value and unreleased, classified as double first class rate 96 cents.</p> <p>2. Unlimited in value but released, first class rate 48 cents.</p> <p>3. Limited in value to $5. per 100 weight but unreleased, first class rate 48 cents.</p> <p>4. Limited to $5. in value and released, fourth class rate 24 cents.</p> <p>Tbe goods were shipped under tbe last named classification and rate. Tbe portion of goods lost weigbtd 600 lbs., which' according to tbe valuation specified in tbe bill of lading would amount to $30. Tbe jury found that tbe goods lost were worth $250. Tbe question presented to tbe jury on tbe issue agreed upon was, What ivas tbe actual value of tbe goods lost by tbe defendant ? The question submitted to tbe court under tbe admitted facts of tbe case and the verdict was “shall tbe plaintiff recover $250., tbe value of the articles lost as found by tbe jury, or $30., tbe value of tbe articles as specified in tbe bill of lading.” On tbe verdict, judgment was rendered in favor of tbe plaintiff for $250., and the defendant excepted and appealed.</p>

<p>AcxiON by W. Y. Clark against the Durham Traction Company, heard by Judge Henry U. Bryan and a jury at the October Term, 1904, of the Superior Court of Dueham County.</p> <p>This was a civil action for the recovery of damages for injury by the negligence of the defendant. The Court submitted the following issues: 1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint ? Ans. Yes. 2. If so, did the plaintiff by negligence on his part contribute to said injury? Ans. No. 3. What damages, if any, is plaintiff entitled to.recover? Ans. $500. Erom a judgment for the plaintiff, the defendant, appealed.</p>

ActioN by E. Massey against W. E. Barbee and. wife, meard by Judge Henry R. Bryan, at tbe October Term, 1904. of tbe Superior Oourt of Duehak County, upon a case agreed.

<p>■Administration Suits — Power of Attorney — Revolted toy Death — Poivers Goupled with Interest — Sales of Property —Receivers—Discretion of Court — Receiver’s Certificates.</p> <p>1. Under section 1151 of the Code, the Superior Court has jui-isdietion to entertain suits brought by creditors or by any party interested' in the proper administration of an estate, and the court may bring the creditors in as defendants and protect the rights of the parties by the appointment of a receiver and by other appropriate orders.</p> <p>2. A power of attorney is revoked by the death of the person giving it, except where a power is coupled with an interest in the thing itself — the power must be grafted on the estate; and an interest in the proceeds of the property does not constitute an interest in the thing.</p> <p>3. Where F. signed a contract giving power to defendant to make sales of his property and it was 'stipulated that it should be binding upon his heirs, executors, administrators and assigns, but it was not signed by his wife, and it was further provided that the right to make sales was dependent upon F’s agreeing to the price and he should execute the deeds, held, the contract was revoked by F’s death, but for expenditures made and it may be for services rendered defendant is entitled to be repaid and compensated from the proceeds of the property when sold.</p> <p>4. While the court will not usually appoint as receiver a person interested in the property, or a party to the controversy as attorney or otherwise, yet the selection rests in the sound discretion of the court, and when no suggestion is made affecting the personal fitness of the receiver or that he will not discharge the duties of the position properly, the appointment of the attorney of the plaintiff will not be interfered with.</p> <p>5. The practice of appointing a receiver upon an unverified complaint and without notice to creditors and other persons interested, is not commended.</p> <p>6. Where a receiver was appointed to take charge of and manage the estate of testator, pending a settlement of the estate, the court has no right to make an order conferring upon the receiver the power to issue' certificates for disbursements made by the administrator c. t. a., or to otherwise inpumber the property.</p> <p>7. An order in an administration suit, authorizing a receiver to issue certificates or otherwise incumber the property does not bind creditors brought in after it was made.</p>

ActioN by W. T. Hughes and another against R. IT. Knott and another, heard by Judge B. F. Long and a jury at the September Term, 1904, of the Superior Court of WaKe County. Erom a judgment in favor of the plaintiffs, the defendants appealed. The plaintiffs sue for the possession of a lot of tobacco described in the complaint.

PROCEEDING for partition by T. A. Eoil and others against A. H. Newsome and others, heard by Judge G. M. OooTce, at the November Term, 1904, of the Superior Court of' Rowan County, upon agreed facts. From the judgment rendered, both parties appealed. PLAINTIFFS’ APPEAL.

This was an appeal from an order of the Board of Commissioners of Iredell County, heard by Judge IJenry R. Bryan, and a jury at the January Term, 1905, of the Superior Court of Iredell County. The issue submitted was as follows, “Are the plaintiffs liable for the taxes assessed against them on $10,080 worth of cotton?” The jury, under direction of the judge answered the issue ‘No’. The defendants appealed.

ActioN by T. M. Cop'ple against the Board of Commissioners of Davie County, heard by Judge Charles M. Coohe and a jury at the Fall Term, 1904, of the Superior Court of Davie County, on appeal from a Justice of the Peace.

<p>ActioN by W. R. Clement and others against H. B. Ireland and wife, heard by Judge W. R. Allen, by consent, at WiNstoN in March, 1904.</p> <p>Ujion the defendant’s motion to set aside a judgment or order of confirmation of sale made in this cause at October Term, 1902, by Judge W. E .Neal, the Judge then presiding in the Superior Court of Davie County. Erom the order of Judge Allen, refusing to set aside the decree of confirmation made by Judge Neal, the defendants appealed to this Court.</p>

On Petition of Plaintiff to Rehear; for former opinion, see 131 N. C., '355. The action was instituted by Thomas S. Rollins, present guardian of J ames Blaine House, against F. 0. Ebbs former guardian, and the sureties on his guardian bond to recover for default of the principal.

ActioN by N. P. Cranford and wife against the Western Union Telegraph Company, beard by Judge Henry R. Bryan and a jury at the February Term, 1905, of the Superior Court of Davidson County. From judgment of non-suit, plaintiffs appealed.

<p>AotioN by J. H. West against A. F. Messick Grocery Company, heard by Judge B. B. Peebles and a jury at the February Term, 1905, of the Superior Court of Guilnoud County. From a judgment of non-suit, plaintiff appealed.</p>

ActioN by Leandrix Hendrix by bis next friend, L. S. Hendrix against tbe Cooleemee Cotton Mills, beard by Judge G. M. Cooke and a jury at tbe Eall Term, 1904, of tbe Superior Court of Davie County. Tbe plaintiff sued to recover damages for an injury received while going up on a freight elevator of tbe defendant’s mill. From a judgment in favor of tbe plaintiff, tbe defendant appealed. ,

ActioN by P. B. Kennedy against W. O. Price, begun before a justice of the peace and heard on appeal by Judge 0. E. Allen, and a jury, at the Spring Term, 1904, of the Superior Court of Davie County. From a judgment dismissing the action, the plaintiff appealed.

<p>ActioN by Pittsburg, Johnstown, Edensburg and Eastern Eailroad Company against Wakefield Hardware Company, heard by Judge Henry B. Bryan, at the September Term, 1904, of the Superior Court of GuilNORD County. This is an action to recover damages for illegal seizure of plaintiff’s cars. The defendant demurred to the complaint, the demurrer was overruled, and the defendant appealed.</p>

CONTROVERSY without action by the City of Greensboro against Scott and Stringfellow beard by Judge T. J. Shaw at Chambers on March 30, 1905.

AotioN by Wm. S. Shields against the Oity National Bank of Greensboro, heard by Judge Oliver H. Allen and a jury at the September Term, 1903, of the Superior Court of GuilfoRd County. Erom the judgment rendered both parties appealed. PlaiNtiRh/s Appeal.

ActioN by J. A. Currie and another against M. L. Jones, pending in the Superior Court of MoNtgomeby County, heard by Judge M. II. Justice by consent, at Chambers, in the City of Charlotte, on the 13th day of February, 1905. From an order dissolving a temporary restraining order and denying the motion of plaintiffs to continue the same till the final hearing, the plaintiffs' appealed.

ActioN by W. H. Rounsaville against North Carolina Home Insurance Company and O. W. Carr, beard by Judge Thomas J. Shaw and a jury at the January (Special) Term, 1905, of the Superior Court of GuilfoRd County. This is an action by the plaintiff to recover for the loss of a storehouse by foe, which he alleges the defendant-through its agent O. W. Carr, under the name of O. W. Carr & Co., had agreed to keep insured for him.

PetitiON for partition by George Bullin against Mary S. Hancock and others, beard by Judge 0. PL. Allen at the August Term, 1904, of the Superior Court of Subby . County, upon the following case agreed. “Nellie Holyfield, being the owner of the land in controversy in fee, by her last will and testament devised said land to Mima Keile and Sally Bullin for the term of their natural lives, with remainder in fee to the children of Sally Bullin.

ActioN by Dorinda Earp against L. L. Minton, beard 'by Judge W. R. Allen and a jury,-at tbe June Term, 1904, of tbe Superior Court of Wilkes County. This was a civil action tried in tbe Superior Court upon appeal from tbe judgment of a justice of tbe peace. Tbe plaintiff alleges that she is tbe owner of a cow and that tbe defendant is in tbe wrongful and unlawful possession of her.

<p>ActioN by D. M. Whitaker and another against Aaron Whitaker, Executor of Isaac Whitaker, heard upon appeal from a Justice of the Peace by Judge T. A. McNeill and a jury, at the November Term, 1903, of the Superior Court of Surry County.</p> <p>From a judgment for the plaintiffs, the defendant appealed.</p>

ActioN by C. W. Parleer v. J-. B. Fenwick, heard by Judge E. B. Jones and a jury at the December Term, 1901, of the Superior Oonrt of Forsyth: County. From a judgment for the defendant, the plaintiff appealed. Plaintiff, being a resident of Kansas, sold to the defendant, a resident of Forsyth County, in this State, one merry-go-round with attachments, for the sum of $2,000, defendant paying $1,000 cash and giving his promissory notes payable monthly, for the balance.

<p>Ferries — Powers of Legislature Over — Franchises—-Special Acts — Powers of County Commissioners.</p> <p>1. Art. 7, See. 2, of tlie Constitution giving the supervision and control of roads, bridges, etc., to the County Commissioners does not deprive the General Assembly of the power to pass an act authorizing the establishment of a public ferry at a certain point for a term of 30 years and providing that it shall be unlawful for any person to establish any other ferry within 1% miles of said ferry.</p> <p>2. The power to establish ferries is one of the attributes of sovereignty which is to be exercised by the legislature itself, or by any agent whom that body may authorize to act for it.</p> <p>3. An act granting a ferry franchise and making it unlawful to establish any other ferry in 1% miles thereof is a restriction upon the general power conferred upon County Commissioners under section 2014 of the Code “to appoint and settle ferries” and the commissioners have no power to authorize a ferry within the . prohibited distance.</p> <p>4. Public ferries are not monopolies, but franchises granted in consideration of public services. They may be exclusive, but are simply licenses revocable at will.</p>

<p>Pleadings — Joinder of Pauses of Action and Parties— Demurrer.</p> <p>1. A complaint which alleges that one of the defendants, W. conceived the design of defrauding plaintiff’s intestate out of his property, and continuously pursued that design through a series of transactions from 1889 till intestate’s death in 1903, the steps taken by W. to so defraud intestate being alleged and the fraudulent connection with him of all those who allowed W. to involve them in his scheme being stated and such persons so participating being made co-defendants and asked to surrender so much of intestate’s property as they fraudulently received either for their own benefit and for that of W., held, that a demurrer for misjoinder of causes of action q¡nd of parties was properly overruled.</p> <p>CONNOR and Walker, JJ., dissenting.</p> <p>2. If the grounds of the complaint arise out of one and the same transaction, or a series of transactions forming one course of dealing and all tending to one end; if one connected story can be. told of the whole, it is not multifarious.</p>

ActioN by J. A. Ilolsbouser Company and others against Gold Hill Copper Company, heard by Judge C. M. Cooke, at the September Term, 1904, of the Superior Court of Rowan County. This is a proceeding under the Act of 1901, Chapter 2, Sec. 13, instituted by the plaintiffs as creditors of the Gold Hill Copper Company to have a receiver appointed to take charge of its assets and apply them under the orders and directions of the court to the payment of its debts.

PROCEEDING for the assessment and collection of the succession or inheritance tax on the estate of P. M. Morris, deceased, heard by Judge W. B. Allen, at the October Term, 1904, of the Superior Oourt of Oabarrus County. This is a proceeding instituted under the Revenue Act of 1903 for the purpose of ascertaining and collecting the succession or inheritance tax on legacies bequeathed by the will of P. M. Morris.

<p>Taxes — Remedy to Recover — Invalid Slate Taxes.</p> <p>Where the plaintiff paid, under protest, to the defendant, Sheriff, a State license tax and thereafter sued the defendant to recover said tax, held, that the action was properly dismissed as the provisions of Sec. 30, Ch. 558, Acts of 1901, that if the person claiming any State tax to be invalid shall pay the same to the sheriff, he may at any time within 30 days after payment, demand the same in writing from the State Treasurer and if the same shall not be refunded in 90 days, he may sue the county in which such tax was collected, are mandatory and the statutory remedy exclusive.</p>

CONTROVERSY without action by Mrs. Aim Parks against W. T. Robinson, heard by Judge W. B. Allen at the October Term, 1904, of the Superior Court of MecelbNburg County. This was a controversy submitted without action under section 567 of The Code.

Actiost by Piedmont Savings Bank, Trustee in Bankruptcy of N. D. Young & Go., against L. Levy, heard by Judge O. II. Allen, and a jury, at the August Term, 1904, of the Superior Court of Story County. This is an action by the plaintiff as trustee in bankruptcy of N. D. Young & Co. against the defendant for the recovery of possession of a stock of goods which the defendant had acquired from the bankrupt a short time prior to the bankruptcy.

<p>ActioN by "W. J. Laffoon against J. F. Kerner and others, beard by Judge Chas. M. Cooke and a jury, at tbe March" Term,- 1905, of tbe Superior Court of Forsyte County.</p> <p>Plaintiff: obtained judgment against defendant Kerner before a justice of the peace for $200, from which judgment defendant appealed to tbe Superior Court. Tbe judgment was duly docketed in tbe Superior Court of Forsyth County and execution issued and returned by tbe sheriff, “Executed April 4, 1904 as to James F. Kerner, and by levying on tbe property of the Southern Woolen Mills. I herewith return execution as tbe defendant has given appeal bond with J. M. Greenfield as surety.” Signed by the sheriff. For the purpose of staying the execution, the defendant executed a bond in the stun of $400, the condition of which is as follows: “That said appellant shall pay all costs and damages that may be awarded against him on such appeal; and do also undertake pursuant to the statute, that, if said judgment or any part thereof, be affirmed, or the appeal be dismissed, the said appellant shall pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which may be awarded against the appellant on such appeal.” When the cause came on for trial in the Superior Court, the defendant J. F. Kernel* pleaded his discharge in bankruptcy and introduced a duly certified copy thereof bearing date Nov. 26, 1904, and declaring the said bankrupt discharged “from all debts and claims which are made provable by said acts against his estate and which existed on the 23rd day of April, 1904, on which day the petition for adjudication was filed by him; excepting such debts as are by law excepted from the operation of a discharge in bankruptcy.” It appeared from the return of the justice that the plaintiff complained for the non-payment of money due by note for labor done. Upon appropriate issues submitted to the jury, the following facts were found: That defendant J. F. Kernel* was indebted to the plaintiff in the sum of $200. That he obtained judgment for said amount ori April 2, 1904 before a justice of the peaee. That said judgment was docketed in the Superior Court on the same day; that by virtue thereof he obtained a lien on certain real estate belonging to said Kernel*. That the defendants E. Kernel* and J. M. Greenfield execute on the undertaking on appeal. That the defendant J. F. Kernel* filed his petition in bankruptcy on April 23, 1904. That he, was not insolvent on the 2nd day of April, 1904. Upon the foregoing verdict judgment was rendered against the defendant J. F. Kernel*, which judgment was declared to be a lien upon the property and real estate owned by him at tlie date of tbe docketing of said judgment subject to the homestead rights of J. E. Kerner. It was further adjudged that the plaintiff recover of the defendants, sureties on .the bond, the amount of said bond, to be discharged upon the payment of the judgment. From this judgment the defendants appealed.</p>

<p>Ac'tioN by W. D. ITester against Durham Traction Company heard by Judge Henry R. Bryan and a jury at the October Term, 1904, of the Superior Court of Dukhak County. Erom a judgment in favor of the defendant, the plaintiff appealed.</p>

ActioN by J. W. Summers against Southern Railway Company heard on appeal by Judge M. PL. Justice, and a, jury at the March Term, 1905, of the Superior Court of Mecklenburg County. There was evidence tending to show that plaintiff,' having an account with W. W. Ward & Son, of Charlotte, N. C., ordered a package of window sash to be shipped to him at Cornelius, N. C., a railroad station within fifty miles of Charlotte, which package duly arrived.

ActioN by Latta Martin Pump Co. against tbe Southern Railway Company, heard by Judge James L. Webb and a jury at the February Term, 1905, of the Superior Court of Catawba County. This was a civil action brought to recover a penalty under Chapter 590, Sections 1 and 2, Acts of 1903; for making overcharges on freight. The court submitted the following issues: 1.

<p>ActioN by O. P. Moore against the American Industrial Company and another, heard by Judge Thomas A. McNeill and a jury at the November Term, 1904, of the Superior Court, of Caldwell County.</p> <p>This was a civil action for the recovery of a tract of land and to remove an alleged claim or mortgage held upon the same by the defendant Samuel Newman. The defendant company owned the tract of land in controversy and had executed a mortgage on the 20th of December, 1895, to Samuel Newman securing a debt for $6,000 and conveying three tracts of land, which is the land in' controversy in this action. A jury trial was waived and the Court found the facts. Erom His Honor’s findings of fact it appears that the defendant company became indebted to the plaintiff for certain services rendered by him in the sum of $164.90, for which plaintiff recovered judgment on the 14th of August, 1896. Execution was issued and under it the sheriff sold the land in controversy on the first Monday in February, 1902, at which sale the plaintiff became the purchaser and received a deed therefor from the sheriff of Caldwell County. Erom the judgment rendered, the plaintiff appeals.</p>

<p>Demurrer to Evidence — Discharge of Employee — Procurement by Third Person — Corporations, Liability of — Same Officers.</p> <p>1. Where the defendant demurred to the evidence and at the conclusion of the entire testimony, renewed the motion to dismiss, these motions presented every phase of the case 'arising upon the plaintiff’s evidence, and it was not necessary to again present them by prayers for instructions.</p> <p>2. In an action against the defendant for procuring plaintiff’s employer to discharge him, plaintiff cannot recover where his contract of employment was only to work by the day.</p> <p>3. The fact that the defendant company and plaintiff’s employer had the same officers does not make the defendant liable for acts doné by its officers in the discharge of their duties towards the other company, though they act in that respect by reason of information derived in the discharge of similar duties as officers of such company.</p>

<p>Non-Suit — Effect of First Trial — Rights at Second Trial.</p> <p>1. In an action to enjoin the erection of certain structures, plaintiff at the first trial in the Superior Court, 'in deference to an adverse intimation upon the evidence and certain findings by the Court, submitted to a non-suit and appealed. Upon appeal, this court found error and remanded the case. At the second trial, the court upon the certificate of this court entered judgment according to the prayer of the complaint; held, that the plaintiff was not entitled to judgment without a new trial by a jury-</p> <p>2. Where a non-suit is taken in deference to an adverse ruling which is reversed on appeal, a new trial is awarded and • at .the next trial thq parties must start even, each having an equal right with the other to present his entire case de novo, unaffected by the proceedings on the first trial and appeal, except so far as the legal principle settled by this court is applicable to the facts as established at the next trial.</p> <p>3. Where the first trial has, by consent of parties, been by the Court the second trial must be by a jury, unless there be a new agreement that the Court may try.</p>

ActioN by Joseph Hicks against Naomi Ealls Manufacturing Company, heard by Judge T. J. Shaw and a jury at the January (Special) Term, 1905, of the Superior Court of GuiluoRD County. The plaintiff had formerly instituted a suit on the same cause of action in the Superior Court of Randolph County, in which a non-suit had been taken, and subsequently instituted this action in the Superior ’Court of Guilford County, and this second action is the subject of the present appeal.

ActioN by A. S. Abernethy against D. E. Yount, beard by Judge T. A. McNeill and a jury, at tbe July Term, 1904, of tbe Superior Court of Catawba County. Tbe plaintiff brought suit in a justice’s court against tbe defendant for tbe recovery of a note for $53.20.

<p>Railroads — Schedule of Trains — Rights of Passenger — Misinformation hy Agent — Burden of Proof — Damages— Impeachment of Witness — Bvidence.</p> <p>1. Under section 1963 of the Code, the printed schedule of trains is an offer, which is' accepted by a person when he asks for a ticket, and he has a right to be transported by the first train stopping at his destination.</p> <p>2. If a train arrives after its schedule time, or misses connection, or delays a passenger at his destination after the schedule time, unless the delay is caused by no fault of the carrier, the passenger has a right to recover compensation for the loss of time and actual expenses.</p> <p>3. Where the plaintiff missed his train, by reason of incorrect information furnished by the ticket agent at the time he applied for a ticket, an announcement made later in the waiting ropm did not cure the misinformation given to the plaintiff, unless the correction was brought to his knowledge.</p> <p>4. Where a ticket agent of the defendant gave misinformation which misled the plaintiff and refused to sell him a ticket, the burden was upon the defendant to show that he gave the plaintiff correct information in time to enable him to take the train.</p> <p>5. The plaintiff who missed his train by misdirection of the defendant’s agent and his refusal to sell him a ticket, can recover for any injury proximately caused by being put out of the station into the cold weather, while waiting for the next train.</p> <p>6. It is competent to impeach the plaintiff, to show by him that he had been convicted of forcible trespass.</p> <p>7. The plaintiff’s denial that he had been charged with larceny is conclusive, and it is incompetent to introduce contradietoi'y evidence.</p>

AotioN.by Oameron-Barkley Co. against Tbornton Light & Power Go., beard by Judge Walter H. Neal and a jury, at the May Term, 1904, of the Superior Court of Catawba County. Prom a judgment for the defendant the plaintiff appealed.

ActxoN by Erank Bolick against the Southern Eailway Company, heard by Judge T. A. McNeill at the July Term, 1904, of the Superior Court of Catawba County. The Court granted defendant’s motion that the action abate by reason of the death of the plaintiff, and the administrator of plaintiff appealed.

AotioN by D. A. Covington against Smith Furniture Company, heard by Judge B. B. Peebles and a jury, at the February Term, 1905, of the Superior Court’ of Guilfoed County. Action to recover damages for injuries sustained by plaintiff while working in defendant’s employment. Plaintiff alleged that he was injured in operating a. jointer. That he began work in July and continued till.

ActioN by S. C. Rayburn against Pennsylvania Casualty Company, beard by Judge Walter H. Neal and a jury, at tbe November Term, 1904, of the Superior Court of Ruth-eefoed County. From a judgment of nonsuit, the plaintiff appealed.

ActioN by R. M. Jones against Durham Water Company, beard by Judge B. B. Peebles and a jury at the January Term, 1905, of the Superior Court of Durham County. Erom a judgment for the defendant, the plaintiff appealed.

<p>Trusts — Grants, How Construed — Trusts, How Created — ■ Construction of Heed.</p> <p>1. When it is doubtful whether language in a grant operates as the declaration of trust, the court will examine the entire deed, the relation of the parties, etc., to enable it to gather the intention of the grantor.</p> <p>2. A grantor can impose conditions and can make the title conveyed dependent upon their performance; but if he does not make any condition, but simply expresses the motive which induces him to execute the deed, the legal effect of the granting words cannot be controlled by the language indicating the grantor’s motive.</p> <p>3. In order to create a trust, it must appear that the words were intended lo be imperative; and when the property is given absolutely and without restriction, a trust is not to be lightly im posed, upon mere words of recommendation and confidence.</p> <p>4. The recital in a deed conveying land to the vestry and wardens of a church, that it was made “for the purpose of aiding in the establishment of a Home for Indigent Widows or Orphans, or in the promotion of any other charitable or religious objects to which the property may be appropriated” by the grantee creates no trust and the grantee can convey a perfect title.</p> <p>CLARK. C. J.. dissenting.</p>

<p>Negligence — Buie of Prudent Man — Change of Buies — 4s-sumption of BisTc — Contributory Negligence — Question for Jury.</p> <p>1. In all cases involving the question of negligence the standard by which to measure the conduct of the employer and the employee is the standard of conduct followed by the ideal prudent man.</p> <p>2. When the facts are admitted and but one inference can be drawn from them, the court will find by the standard of the ideal prudent man, as a matter of law7, the existence or non-existence of negligence. When the facts are not admitted, or when more than one inference may be reasonably drawn, the question is submitted to the jury to find whether or not there is negligence.</p> <p>3. The fact that a mill ran short of hands is no legal excuse for changing a rule and requiring the machinery to be cleaned while in motion, if doing so unreasonably increased the hazard.</p> <p>4. Where the defendant made a rule requiring the plaintiff to clean his machine while in motion, the question of defendant’s negligence should have been submitted to the jury under proper instructions, to inquire whether it was a reasonably safe and prudent method of doing the work.</p> <p>5. An employee wlio continues to work when he is exposed to a danger which he understands and appreciates, and which results from his employer’s negligence and which he did not assume by his implied contract when he entered the service, does not as a matter of law voluntarily assume it by merely remaining in a place which is rendered unsafe by his employer’s fault.</p> <p>6. When an employer adopts a dangerous method, the question whether the employee. assumes the risk by continuing the work depends upon whether said danger was so obvious and so well known to and appreciated by him or should by the exercise of reasonable care have been so known and appreciated that a 'prudent man under like conditions would have continued the service and this is for the jury to determine.</p>

AotioN by J. M. Pressly against Dover Tam Mills, beard by Judge O. II. Allen and a jury, at tbe January Term, 1905, of tbe Superior Court of MecKlenburg County. Tbis was an action for damages for negligence tried upon tbe following issues: 1. Was plaintiff injured by tbe negligence of defendant? 2. Did plaintiff by bis own negligence contribute to bis own injury? 3. Did plaintiff voluntarily assume tbe risk? 4.

CONTROVERSY without action by Joseph W. Janney and others against Nannie G. Blackwell, heard hy Judge James L. Webb, at the February Term, 1905, of the Superior Court of Caldwell County. This is a controversy without’action submitted to the court upon facts agreed for the purpose of settling the matters in difference between the plaintiffs and the defendant under section 567 of The Code. The plaintiffs claim the land in controversy under grant No. 883 to AV.

<p>ActioN by William 0. Huet against Piedmont Springs Lumber Company and others, pending in tbe Superior Court of BueKe County, beard, by consent, by Judge Walter H. Neal, at Salisbury, on the 17th day of February, 1905, upon a motion to continúe to the hearing, an injunction and restraining order theretofore granted.</p> <p>The plaintiff entered into a partnership with the defénd-ants, Birdsall and Ooolbaugh, for the purpose of manufacturing and selling timber. They afterwards organized a corporation chartered as The Piedmont Springs Lumber Co. The property of the partnership was conveyed to the corporation — shares being issued to the parties representing the interests of the members of the partnership. There were issued to the plaintiff 21 shares, and in addition thereto 49 shares in payment of which he executed his note to the corporation for $4,900, depositing his holdings of 70 shares as security therefor. There was an agreement by the terms of which the plaintiff was employed as the superintendent at a fixed salary. At a meeting of the stockholders, the directors were authorized to sell additional stock, not exceeding the authorized capital stock authorized by the charter. The plaintiff alleges that the 49 shares for which he gave his note were to be paid for out of the profits of the business. This is denied by the defendants. After the maturity of the note, the directors held a meeting in the city of Philadelphia and abolished the office of superintendent. At the same meeting, the secretary was directed to notify the plaintiff that the corporation would sell the stock so hypothecated, at a time and place named, for the payment of the note of $4,900.</p> <p>The directors also sold to the defendants, A. L. and F. Lueker, 140 shares of the capital stock of the corporation of the par value of $100 per share for the sum of $10,000. To this the plaintiff objected. The defendants admit the sale of the stock and allege that the property conveyed to the corporation was over-valued by the plaintiff and that the stock was not worth par; that the corporation was in need of money and that efforts were made to séll stock at paa.’ without success; that the sale to Leuker had been consumated, the money paid, and the stock issued prior to the beginning of this action. The plaintiff avers that the corporation is amply solvent and that his share of the profits from the business, as shown by a schedule of its assets, are sufficient to pay the note of $4,900. The defendants admit solvency, but deny that the assets are of the value alleged, and set out- at much length the history of the dealings between the plaintiff and the corporation, the reasons which induced the directors to abolish the office of superintendent, etc. The plaintiff prays that the sale of the stock to Leuker be declared void and enjoined; that the sale of his stock be enjoined until he can have an account of the assets of the corporation taken, and that a receiver be appointed. From an order vacating the restraining order and refusing an injunction the plaintiff appealed.</p>

<p>Wills — Contingent Remainders,. Conveyance of — Contingencies.</p> <p>1. Where a father devised to his son (the plaintiff) certain property and hy a codicil provided if his son “dies unmkrried or leaying no children,” the property shall go to certain relatives, hbld, that deeds executed by said relatives and by the children of such as were dead, conveying to the plaintiff “all the right which they " now have or may hereafter have” in said property vest ,in him an indefeasible title.</p> <p>2. Contingencies, which import a present' interest of which the future enjoyment is contingent, are devisable and descendible and may be the subject of release in certain cases, operating as an estop-pel on the heirs and effectual as a valid conveyance.</p>

ActioN 'by tbe Board of Commissioners of Chatham County against E. M. Stafford & Company, heard by Judge B. F. Long at the May Term, 1905, of the Superior Court of Chatham County.

ActioN by Jesse D. Penland against E. P. Ingle, beard by Judge Thos. J. Shaio and a jury, at tbe December Term, 1904, of tbe Superior Court of Bunoombe County. Tbis was an action by a real estate broker to recover tbe sum of $250 alleged to be due bim for services rendered to tbe defendant in connection with tbe sale of a farm in Buncombe County.

AotioN by Elisha Vance, administrator of J. E. Vance, against Southern Eailway Company, heard by Judge Walter H. Neal, at the April Term, 1905, of the Superior Court of Buncombe County. Erom a judgment for the plaintiff, the defendant appealed. The defendant is a Virginia corporation but operates a line of railway both in North Carolina and Tennessee.

ActioN by J. W. Eowe aucl another against the Cape Eear Lumber Company, heard by Judge Fred Moore and a jury, at the September Term, 1904, of the Superior Court of PeN-der County. From a judgment for the plaintiffs the defendant appealed.

AotioN by Battery Park Bank and others against Western Carolina Bank, beard by Judge Thos. J. Shaw, at tbe December Term, 1904, of the Superior Court of Bthstcombe County, upon petition of Merrick and Hewitt for the cancellation of a deed of trust in favor of J. M. Campbell, at the expense of the receiver. From the judgment rendered, both Campbell and the receiver appealed.

<p>1. A clause in a holograph will reciting that the testatrix wished to record the wishes of her husband as expressed in his last illness, that at her death he wished the two laundries sold and the proceeds divided between his sister and brothers, is a testamentary disposition of said property.</p> <p>2. No particular form of, expression is necessary to constitute a legal disposition of property; although apt words are not used and the language is inartificial, the courts will give effect to it where the intent is apparent.</p>

<p>ActioN by Jesse L. "Whitaker and others against Russell Jenkins and others, heard by Judge T. J. Shaw, at the December Term, 1904, of the Superior Court, of Buncombe County. From a judgment overruling a demurrer to the answer of the defendant, Russell Jenkins, the plaintiffs appealed.</p> <p>This is a proceeding for partition. Josiah Jenkins, who owned the land, devised it as follows: “I will and devise to my wife, Martha, all the land which I now own with the full benefit of all the buildings and farm as her own right and property during her life or until her three sons, Thomas Erwin, Joshua and Russell shall come to the full age of 21 years, at which time all the land to belong to them, but if my wife should live longer than the time of their coming to age she is to have her maintenance of the land.”</p> <p>The three sons arrived at full age, and their mother, who survived them, died in May, 1900. Thomas and Joshua died intestate and without" children, leaving as their heirs a brother and a sister who are defendants in this proceeding. By an order in the cause some of the defendants were made plaintiffs. The defendant, Russell Jenkins, denies the tenancy in common, and pleads sole seisin. Plaintiff demurred. The first question raised is as to the sufficiency of the plea. In his answer, he avers that after he and his brothers were of age “he took actual and sole seisin and possession of the land and has been in open, notorious and adverse possession of the same without any demand or claim of any other claimant to rents, profits or possession'for more than twenty years.” He alleges that his two brothers, being unwilling to assume the burden of supporting their another, abandoned the land more than 20 years before this proceeding was commenced and left him in the sole and exclusive possession thereof. It is further alleged that “he is and has been for more than 20 years in the sole and exclusive use and possession of the land under known and visible lines and boundaries, without demand or claim of the alleged tenants in common or those under whom they claim,' or any of them, and adversely to all persons,” and that neither the petitioners nor those under whom they claim have been seized or possessed of the premises within 20 years before the commencement of this proceeding. He avers that he has supported and maintained his mother from the time the title vested in the three sons of Josiah Jenkins. The court overruled the demurrer and the plaintiffs appealed.</p>

ActxoN by Jane H. Oressler and ber husband against the City of Asheville, heard by Judge M. H. Justice and a jury, at the September Term, 1904, of the Superior Court of BuN-cojibe County. From a judgment for the plaintiff, the defendant appealed.

<p>Pleading — Prayer for Belief — Complaint—Sufficiency— Waiver of Defects.</p> <p>1. The common law rule that every pleading shall be construed against the pleader, is modified by the present Code system (sec. 260), which requires that all pleadings shall be liberally construed with a view of substantial justice between the parties.</p> <p>2. Under the present system of pleading and practice, any relief may be granted which is consistent with the case made by the complaint and embraced within the issue, although other and different relief may be sought by the pleader and demanded in the prayer for judgment. (Code, sec. 425.)</p> <p>3. Under sec. -276 of The Code all defects in the pleadings and proceedings which do not.affect the substantial rights of the adverse party shall be disregarded in every stage of the action.</p> <p>4. In an action on a fire policy where the complaint alleged that the insurance was written on tobacco and that defendant agreed to transfer the insurance from the tobacco to certain machinery, and that the tobacco and the machinery were totally destroyed by fire during the life of the policy, held, that the plaintiff having failed to show any transfer of the insurance from the tobacco to the machinery, can recover for the loss of the tobacco, although the complaint seems to have been drawn for the purpose of recovering the loss of the machinery.</p> <p>5. In an action on a fire policy, the failure to allege the value of the property insured at the time of the fire, even if an essential allegation, is such a defect as can be cured by amendment and is waived by answer.</p> <p>Bkown, J., dissents.</p>

<p>. CONTROVERSY without action by D. L. Arey against the Board of Commissioners of Kowan County, heard by Judge Henry R. Bryan, in the Superior Court of EowaN County. Prom a judgment for the defendants the plaintiff appealed.</p>

<p>Parol Evidence — Collateral Writings — Buie as to Parol Evidence.</p> <p>1. 'In an action to recover the plaintiff’s share of the proceeds of the sale of options, which the plaintiff alleges the defendant has fraudulently withheld from him, it is competent to permit parol evidence of the options and their contents as they are collateral to the issue.</p> <p>2. The rule that parol evidence cannot be allowed as to the contents of a written instrument applies only in actions between parties .to the writing arid when its enforcement is the substantial cause of action.</p>

<p>Hearsay — Declarations and General Reputation as to Boundaries — When Competent.</p> <p>1. The declarations of a person as to the location of a boundary are competent if the declarations were made ante litem mo lam and the declarant is dead when they are offered and he was disinterested when they were made.</p> <p>2. Evidence of general reputation as to the location of a boundary is competent if the declaration has its origin at a time comparatively remote and ante Ulem mot'am, and attaches itself to some monument of boundary or natural object or is supported by evidence of occupation and acquiescence tending to give the land in question some definite location.</p>

ActioN by T. S. Wood and another against Pearce Tins-ley, heard by Judge Thomas J. Shaw and a jury, at the August Term, 1904, of the Superior Court of TeaNsyuvaNia County. This was an action for the recovery of land. The plaintiffs alleged that they are the owners of the land described in the complaint and that the defendant was in the wrongful possession thereof.

ActioN by William Nicholson against tbe Transylvania Railroad Company, beard by Judge O. S. Ferguson and a jury, at tbe October Term, 1904, of tbe Superior Court of Jackson County. From a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Joseph E. Duckworth, administrator with the will annexed of Thomas P. Jordan, against William B. Jordan and others, heard by Judge Walter H. Neal, at the' April Term, 1905, of the Superior Court of Transylvania County. This was an action to obtain a construction of the will of Thomas P. Jordan. On the 28th day of August, 1879, Thomas P. Jordan made and published his will as follows: Eirst.

ActioN by Western Carolina Bank and W. W. Jones, Receiver against C. B. Moore, beard by Judge Fred Moore and a jury, at tbe March Term, 1905, of the Superior Court of BuNcoMbe County. W. W. Jones, Receiver of The Western Carolina Bank having found the note of defendant, to the amount of $600 among the assets of the bank, instituted this action against defendant, alleging that the note sued on belonged to the bank and was due and unpaid.

<p>Municipal Corporation — Rights in Streets and Sidewalks— Rights of Abutting Owners — Trees on Sidewalks — Erection of Electric Poles — Punitive Damages.</p> <p>1. The right acquired by a city by condemnation of a street and sidewalk is confined to the public necessity and to the uses for which property is taken or burdened with the easement and for any additional burden placed upon the servient tenement, compensation must be made.</p> <p>2. The power of a city to confer upon the defendants a franchise to lay their tracks, erect their poles and string their wires along the streets or sidewalks cannot affect the right of abutting owners to demand compensation for any additional burden placed upon their property.</p> <p>3. An abutting owner has property in shade trees standing along the sidewalk which the law will protect and they may not be removed except where their removal is necessary for the use of the street as a public highway.</p> <p>4. Authority granted by a city to the defendant electric company to remove a shade tree in front of plaintiff’s home in order to put up its poles and wires does not justify the act of the defendant in removing the tree, the city having no power to deprive the plaintiff of his property for such purpose without compensation.</p> <p>5. .In an action to recover damages for cutting down a shade tree in front of plaintiff’s home where the evidence showed that it was not necessary to remove the tree, but was more convenient to place defendant’s poles and string its wires with the tree out of the way, and it was cut down while the plaintiff was away from home and over the protest of his wife, held, that the plaintiff was entitled to demand punitive damages.</p>

<p>Verdict■ — Negligence—Master and Servant — Assumption of Risk — Questions for Jury — Dangerous Methods Adopted.</p> <p>1. This court lias no power to consider the question of setting a verdict aside as against the weight of evidence unless it clearly appears that there was no evidence to sustain the finding.</p> <p>2. Negligence is a want of ordinary care and a failure to ' exercise that care which a man of ordinary prudence would have exercised under the circumstances. It is a failure to perform some duty imposed by law.</p> <p>3. Negligence is a mixed question of law and fact and it is impracticable for the court, as a matter of law, to say whether or not there is negligence, except where the facts are admitted and no reasonable controversy can arise as to the inferences to be drawn therefrom.</p> <p>4. In an action by an employee to recover damages -for injuries sustained in replacing a belt while the machine was in motion, as ordered by his employer, it is a question to be decided by the jury whether replacing the belt while the machine was in motion was unsafe to such an extent that an ideal prudent man under similar circumstances would direct his employee to do so.</p> <p>5. Where an employer fails to perform its duty and furnish the employee with safe and suitable methods of doing the work, the employee will not be held to assume the risk in undertaking to perform a dangerous work, unless the act itself is obviously so dangerous that in its careful performance the inherent probability of injury is greater, than that of safety, or unless it is a • ' danger ordinarily incident to the employment, or unless obvious, j or one which the employee may discover by the exercise of ordinary care.</p> <p>6. Both the employer and employee must exercise that degree, of care under the circumstances and in the condition in which they are found which the ideal prudent man would do.</p> <p>7. Where a change is made in the method of operating a machine after the employment has been accepted, it is a question for the jury to say whether the increased hazard is so obvious that a man of ordinary prudence under like conditions would know and appreciate the danger which extends to the continued employment.</p>

ActioN by W. R. Ammons against tbe Southern Railway Company, heard by Judge B. F. Long and a jury, at the August Term, 1904, of the Superior Court of Swain County. From a judgment of nonsuit, the plaintiff appealed. The plaintiff alleges that he was unlawfully ejected from . one of the defendant’s trains and sues to recover damages for the wrong thus committed.

Tbi-s was a motion by T. C. Howard and another, sureties, on tbe bail bond of defendant to set aside a judgment absolute, entered at April Term, 1904, against them, beard by Judge W. B. Council, at tbe November Term, 1904, of tbe Superior Court of CraveN County. Tbe defendant, Scbenek, was tried before a Justice of tbe Peace for unlawfully selling liquor, a misdemeanor by statute.

<p>Homicide — Manslaughter—Evidence—Question for Jury.</p> <p>1. Involuntary manslaughter is where death results unintentionally so far as the defendant is concerned, from an unlawful act on i his part not amounting to a felony, or from a lawful act negligently done.</p> <p>2. If death ensues from the unjustifiable and reckless use of a gun, it is manslaughter, whether the gun was intentionally discharged by the prisoner or not.</p> <p>3. Where the evidence is conflicting, or where the facts testified to are such that reasonable minds may draw different inferences therefrom, the case should be submitted to the jury, with appropriate instructions as to the law, together with the contentions of both sides arising on the 'evidence.</p> <p>4. If there is any view of the evidence construed most favorably to the prisoner, by which innocence may be inferred, such view should be presented to the jury, who are the constitutional judges not only of the truth of the testimony, but of the conclusions of iact resulting therefrom.</p>

INDICTMENT against Paul W. Young, heard by Judge Fred Moore and a jury, at the September Term, 1904 of the Superior Court of New Hanovee, County. Erom a verdict of guilty and judgment thereon, the defendant appealed.

<p>Indictments — Provisos—Vinous Liquors — Time as Essence of Offense — Objection to Venue — How Talcen.</p> <p>1. An indictment charging the deiendant with violating an act forbidding the sale or manufacture of vinous liquors in a certain county, section 1 thereof concluding with a proviso that the act shall not apply to wine or cider manufactured from fruit raised on the lands of the person manufacturing same, need not aver that the liquors sold were .not manufactured from fruit raised on the lands of the defendant, and a motion to quash for that no such averment was made, was properly denied.</p> <p>2. There are two kinds of provisos — the one, in the nature of an exception, which withdraws the case provided for from the operation of the act; the other, adding a qualification whereby a case is brought within that operation. When the proviso is of the first kind, it is not necessary in an indictment to negative the proviso, it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description, the indictment must bring the case within the proviso.</p> <p>3. in an indictment for selling liquor without license, a demurrer to the 'evidence on the ground that it was not shown upon what day, in August preceding, the sale was made, was properly overruled, as time was not of the essence of the offense.</p> <p>4. Under section 1194 of The Code, an objection to venue must be taken by plea in abatement, and a demurrer to the evidence on this ground was properly overruled.</p>

INDICTMENT against A. J. Sheppard, heard by Judge Q. S. Ferguson and a jury, at the September Term, 1904, of the Superior Court of Wayne County. The defendant was indicted for selling and unlawfully putting up lightning rods without having obtained a license as required by the Act of 1903, ch. 247, sec. 47.

<p>Landlord and Tenant — Indictment—Verdict—Insensible or Repugnant — Duty of Court.</p> <p>1. In an indictment under section 1761 of The Code, which makes it unlawful for a tenant to injure any tenement house of his landlord, the burden of proof is upon the State 'to establish, first, that the relation of landlord and tenant existed, and second, that during the tenant’s term or after its expiration, he did wilfully and unlawfully injure the tenement house.</p> <p>2. Where, on the trial of an indictment under sec. 1761 of The Code, the evidence tended to prove that the defendant entered the house as A’s tenant, he cannot be heard to say it was not A’s property.</p> <p>3. Where the jury in response to the question of the elerk, “if they had agreed,” said “Yes, guilty, but innocently,” and the court declined defendant’s request to have this response entered on the record as the verdict, .and told the jury to retire and consider the evidence and return a verdict of “guilty or not guilty” as they should find from the evidence and the law given them by the court, and the jury retired and after consultation returned a verdict of “guilty,” held, that defendant’s motion for his discharge on the ground that the first response was the true verdict and equivalent to a verdict of not guilty was properly denied.</p> <p>4. Before a verdict returned into open court by a jury is complete, it must be accepted by the court for record, and it is the duty of the judge to look after the form and substance of a verdict, so as to prevent a doubtful or insufficient finding from passing into the records.</p> <p>5. When a jury returns an informal, insensible or a repugnant verdict or one that is not responsive to the issues submitted, they may be directed by the court to retire and reconsider the matter and bring in a verdict in proper form, but it is encumbent upon the judge not even to suggest the alteration of a verdict in substance.</p>

<p>INDICTMENT against Dan Teacbey, beard by Judge Fred Moore and a jury, at tbe October Term, 1904, of tbe Superior Court of Duplin County.</p> <p>Tbe" prisoner, Dan Teacbey, was tried at August Term, 1903, for tbe murder of one Rivenbark in tbe County of Duplin. Tbe grand jury wbicb indicted bim was drawn prior to a revision of tbe jury boxes on tbe first Monday in June, 1903. He was tried and convicted of murder in tbe first degree at August Term, 1903, and appealed to tbe Supreme Court. A new trial was ordered for error in reception of evidence. At August Term, 1904, tbe cause came on to be beard again. So far as tbe record discloses no plea in abatement was filed, or motion made to quash tbe bill for irregularity in selecting tbe grand jury or other cause.</p> <p>At said term tbe prisoner challenged the array of jurors for irregularities in revising tbe jury lists and boxes, which motion was sustained.</p> <p>At October Term, 1904, the cause was tried, commencing second week, November 7, before Moore, J.,. and a jury. The prisoner was convicted of murder in the first degree and from the judgment pronounced appealed to this court.</p>

<p>Homicide — Threats—Examination of Witness — Statements While Under Arrest — Evidence of Character and Haibits of Deceased — When ■ Competent — Hypnotism—<Impeaching and Corroborating Evidence — Comments of Counsel — Deliberation and Premeditation — Manslaughter—Charge.</p> <p>1. In an indictment for homicide which occurred in September, evidence of threats made by the prisoner the same year, showing deep seated animosity against the deceased, or of threats to take his life is competent.</p> <p>2. Where evidence of threats against the deceased was so involved that it would be meaningless unless the entire statement, which also showed threats against other persons, was given, it was not error to admit such statement, where the court instructed the jury that it was competent only as to .the deceased and incompetent as to the other persons.</p> <p>3. A witness gave his evidence without being sworn and this being discovered, he was sworn and re-stated his testimony, it is no ground for a new trial, where the court told the jury that “they must disregard each and every statement made by the witness before he was sworn and must not consider anything which the witness had then said as evidence in the case.”</p> <p>4. An exception to a statement pertinent to the inquiry made by the pi'isoner to a deputy sheriff when that officer had him in custody, for the reason that he was at the time in custody, is without merit.</p> <p>5. On a trial for homicide neither the character and habits of the deceased, nor even his disposition towards the prisoner is relevant to the issue; except (1) when there is evidence tending to show that the killing may have been done in self-defense; or (2) where the evidence is wholly circumstantial and the character of the transaction is in doubt.</p> <p>6. Where the ruling of the court in rejecting the evidence of a witness was correct at the time the evidence was offered and as the facts then appeared, its rejection was not error, though at a later stage of the trial it became competent; and if the prisoner desired the benefit of this evidence, he should have offered it after the development of the trial had made it competent.</p> <p>7. Where the prisoner testified that he had hypnotized his wife and his evidence tended to show that he had influence over her to .a greater extent than usually arises from the relationship between them, it was not error to permit the State to ask the wife on cross-examination if she had not been hypnotized by her husband, as affecting her credibility.</p> <p>8. Where the wife testified as an eye witness to the homicide, contradictory of the State’s testimony and tending to support her husband’s claim, that the killing was in self-defense, her declaration, “0, little did I think I would have married a murderer in my own family/' was competent as impeaching evidence.</p> <p>9. An affidavit made by a witness in the presence of the prisoner’s wife who said it was correct, is admissible, not as substantive evidence, but for the purpose of corroborating the witness, and contradicting the wife who had testified for her husband.</p> <p>10. Whenever the credit of a witness is impeached, whether by proof of general bad character or by contradictory statements by himself, or by cross-examination tending to impeach his veracity or memory, or at times by his very position in reference to the cause and its parties, it may be restored or strengthened by any proper evidence tending to restore confidence in his veracity and in the truthfulness of his testimony, whether such evidence appears in a verbal or written statement, verified or not, or whether the previous statements were made ante litem motam or pending the controversy.</p> <p>11. A letter of the prisoner, concerning the deceased which tended to show ill will against the deceased is competent for that purpose.</p> <p>12. Comments of counsel in the argument to a jury are under the supervision of the trial judge and this court will not interfere with the exercise of his discretion unless it plainly appears that he has'been too vigorous or too lax in the exercise of it to the detriment of the parties.</p> <p>13. In an indictment for homicide, evidence that the prisoner had strong enmity towards the deceased and had several times threatened to kill him, and when they were in the same room, the ' prisoner withdrew, but on hearing an opprobrious epithet immediately returned and after asking whom the deceased meant, siezed his pistol and advanced on the deceased who was unarmed in a reclining attitude, and as the deceased was endeavoring to escape, shot him, and as his victim fell helpless before him, he fires another shot, causing instant death, pushing aside the interposing arm of his wife, the mother of the deceased; held, that the evidence was sufficient to warrant a verdict of murder in the first degree.</p> <p>14. In an indictment for homicide where the evidence shows that just as the prisoner was withdrawing from the scene of the killing, he was met by the brother of the deceased, drew his pistol on the brother and made him stand off, so that he could withdraw without hindrance, an instruction to the jury that “in determining the question of premeditation and deliberation it is competent for the jury to take into their consideration the conduct of the prisoner before and after, as well as, at the time of the, homicide and all of the circumstances connected with the homicide,” is not erroneous.</p> <p>15. Where the judge in Ms charge to the jury gives a full explanation of both the statutory terms “deliberate” and “premeditate” in words which express both ideas and excludes all idea of a killing from passion suddenly aroused, and directs the jury before they can convict of the higher crime that the killing must be from a fixed determination, previously formed, after weighing the matter, it is correct, though the judge did not define each term separately.</p> <p>16. The following instruction on the question of manslaughter is correct: “If you should find from the evidence that the prisoner willingly engaged in the fight with the deceased, and that the deceased threw his hand to his hip pocket and'advanced upon the prisoner in a threatening manner, and that the prisoner, being willing to fight seized a pistol and shot the deceased and the deceased died from the wound, the prisoner would be guilty of manslaughter, provided that you should find from the evidence that the appearance and manner of the deceased were such as to cause the prisoner to believe that the deceased was armed with a deadly weapon, and that the prisoner did believe he was thus armed and was about to harm him with it.”</p> <p>17. The charge to a jury must be considered as a whole in the same connected way in which it was given, and upon the presumption that the jury did not overlook any portion of it. If, when so construed, it presents the law fairly and correctly, it will afford no ground for reversing the judgment, though some of the expressions, when standing, alone, might be regarded as erroneous.</p>

INDICTMENT against J. C. Blackley, beard by Judge G. S. Ferguson and a jury, at tbe September Term, 1904, of the Superior Court of Waee County. From a verdict of guilty and judgment thereon, the defendant appealed.

<p>Former Jeopardy — Mistrial—Drunken Juror — Duty of Gourt.</p> <p>1. Where a prisoner was placed on trial for a capital felony under the same bill of indictment at a former term and the trial judge pending the argument discharged the jury and ordered a mistrial on account of the drunken condition of a juror which incapacitated him for further service, a plea of former jeopardy was properly overruled.</p> <p>2. In all cases the trial judge may, in his discretion, discharge a jury and order a mistrial when necessary to attain the ends of justice, but in capital eases it is his duty to find the facts fully and place them upon record so that upon a plea of former jeopardy his action may be reviewed.</p>

INDICTMENT against Sampson Barrett, beard by Judge M. H. Justice and a jury, at tbe November Term, 1904, of tbe Superior Court of Union County. Defendant was charged with unlawfully and wilfully keeping for sale, etc., spirituous liquors contrary to tbe form of tbe statute, etc. Upon a plea of not guilty the State introduced one J. A. Williams, wbo testified tbat on tbe night in question witness and Mr. Bivens went up tbe road to see if they could bead tbe defendant off.

INDICTMENT for rape against C. E. Hayes, tried by Judge George W. Ward and a jury, at tbe November Term, 1904, of tbe Superior Court of Robeson County. Tbe prisoner was convicted of tbe crime of rape upon tbe person of one Mary Inman, and from tbe sentence of death pronounced by tbe court, appealed.

INDICTMENT against W. L. Hough, for tbe murder of one George Hartsell, beard bj Judge. W. R. Allen and a jury, at tbe October Term, 1904, of tbe Superior Court of Cabaeeus County. Tbe prisoner was convicted of manslaughter, and from tbe judgment of tbe court, be appealed.

INDICTMENT against Elem Blevins for tbe murder of J. J. Bucbanan, beard by Judge T. A. McNeill and a jury, at tbe February Term, 1905, of tbe Superior Court of Mitchell County. Tbe jury found tbe prisoner guilty of manslaughter, and be excepted and appealed from tbe judgment pronounced.

INDICTMENT for embezzlement against Cbas. E. Dunn, heard bj Judge Fred Moore and a jury, at the November Term, 1904, of the Superior Court of Lenoib County. The bill was drawn under section 1014 of The Code. The defendant was convicted and appealed.

<p>INDICTMENT against Elisba Garland for murder, beard by Judge IF. H. Neal and a jury, at tbe August Term, 1904, of tbe Superior Court of McDowell County. Tbe evidence considered necessary to a proper understanding of tbe decision is as follows:</p> <p>Alfred AVilliams, for tbe State, testified tbat “Just before deceased came in prisoner was drinking, cursing and talking. I was in there when deceased came in. When be came in be walked up to tbe stove and turned bis back to it. Prisoner told Calicutt, tbe deceased, to put some coal in tbe stove. Deceased said, T am not working here.’ Prisoner told bim again about tbe stove and fire. Deceased said be bad no authority there. Prisoner said, ‘Damn you, you will do it, too.’ Calicutt turned around. Prisoner caught bim in the collar, shoved bim back and shot bim between tbe eyes. "When prisoner bad deceased by tbe collar one of tbe men said, ‘Don’t do tbat, Leish; quit.’ Calicutt never said anything but what I have told. When tbe shot was fired deceased fell. Prisoner dropped bis pistol, picked it up, opened tbe door with both hands and went out. Oalicutt went out on the platform. Nothing was said except what I have told.”</p> <p>As to dying declarations of deceased, James Oalicutt testified : “Deceased was my son. He lived eight days after he was shot between the eyes. He was conscious all the time. He told me when he came home that he was shot.' He said every day he was going to die; asked me and his mother to pray for him. He said 'he had been to the festival; started home; went down to the railroad bridge with some others who were going to a wake at Morehead City (in this county). He got to the bridge and said he would not go further; went into the depot to see what time it was, and some one, he did not know who, asked him to make a fire in the stove. He told the man, T don’t work here.’ The man said, ‘You’ve got to make it, for I am cold.’ This fellow said, ‘Maybe yon are not going to do it.’ Deceased said, ‘No, for I don’t work here.’ The man said, ‘God damn you, I’ll see if I can make yon do it,’ grabbed me (deceased) in the collar and shot me.’ Deceased said he fell behind the door.”</p> <p>The prisoner, Elisha Garland, testified in his own behalf: “I laid down and dozed off to sleep. When deceased came in the door slammed and woke me. That was the time Ive Oalicutt, deceased, came in. I had not seen him before. Did not know him. I was lying where the partition between the seats was torn out, on my left side, asleep. Door slammed and I woke. I raised my head and laid down again. Gold ehill ran over me. I looked and saw the darkey standing up near the stove with his back to it. I said, ‘Partner, wake that man and tell him to put some coal in the stove.’ He said, .‘I have nothing to do with waking him.’ I said, ‘Oan’t you wake him and tell him to make a fire in the stove?’ He turned his head to the left and said, ‘Who are yon; a Mitchell Oonnty son of a bitch?’ I said, ‘Don’t yon say that any more.’ I jumped up and said, ‘You have got that to take back.’ He said, ‘I don’t say a damn thing to take back.’ I said, ‘There have been men wbo said things and took back.’ He said, ‘yon damn liar, yon son of a bitch, I will shoot yonr head off.’ Threw his right hand to his right hip, threw himself to the right and turned on his heel. I drew a revolver and fired. I fired wheil he threw himself around. His face was straight towards me. I dropped my pistol when I went to open the door, picked it up and went out the door and left. He was standing up on the south side and I walked up to him on the north side. I walked up from where I was lying at the stove, ten or twelve feet to where he was, and the shot was fired in two minutes.”</p> <p>On cross-examination prisoner testified: “I saw no firearms on the deceased. No gun or knife, no rock or stick. He never moved one step towards me. Saw no stick. Made no attempt to strike me. The Governor offered a reward for me. I was found in Mitchell Oounty. I never heard Hollifield say, ‘Stop, Leish; don’t do that.’ I came over here to work. Did not bring my trunk or any clothes except what I wore. When I told him he had to take that back, then it was I walked up to where he was, at the side of the stové. I was indicted for marrying a woman through a joke. I have been in the H. S. Army; joined in 1902. I gave in my age as 18. I was not sworn as to my age. I was in the army fourteen months. The mock marriage took place in the woods. I was drunk once six or eight years ago.”</p> <p>The court among other things instructed the jury, after reciting all the evidence, that if they believed the prisoner’s evidence and that of his witnesses to be true, he would at least be guilty of manslaughter. To the foregoing charge the prisoner in apt time excepted and assigned the same as error. This was the only exception as to the charge given.</p> <p>The jury rendered a verdict of guilty of manslaughter, and from the judgment thereon the prisoner appealed.'</p>

INDICTMENT against Charlie Stines for rape, heard by Judge Fred Moore and a jury, at the February Term, 1905, of the Superior Court of Madison County. From a verdict of guilty and judgment thereon, the prisoner appealed.

INDICTMENT against Will Adams for murder, beard by Judge Fred Moore and a jury, at tbe January Term, 1905, of tbe Superior Court of Waee County. This case was before us at a former term when we ordered a new trial for tbe reason stated in tbe opinion of tbe court. 136 N. O., 611. Tbe defendant was indicted in tbe court below for tbe murder of Mary Bridgers on Friday, January 22, 1904.

INDICTMENT again Peter Smith for rape, heard by Judge Fred Moore and a jury, at the February Term, 1905, of the Superior Court of Madison County. Erom a verdict of guilty and judgment thereon, the prisoner appealed.

<p>IkbictmeNt for murder against Thomas J. AVhite and Chalmers L. White, heard by Judge 0. ill. Cooke and a jury, at September Term, 1904, of the Superior Court of Rowan County.</p> <p>The eye witnesses to the transaction were Mrs. A. E. Sher-rill, mother of deceased, and the prisoners, Thomas J. AVhite' and Chalmers L. White, and their direct testimony is here set out.</p> <p>Mrs. Sherrill, mother of deceased, testified for the State: “Chal, and Tom White came there very early in the morning before I got up; it was before sun up; they came from the south; I did not see thém come, but they hitched their horses on the south side of the' railroad that goes in south; they were' in a two-horse buggy, driving two horses; I did not know them when I went to the door; I had seen them often, but as I say I did not know them. The prisoners came up from the left side of the house on the west, I might say, of the front side; they hitched their horses to a post, I suppose; can’t say whether they were hitched or not. This post was about' 50 yards or a little further from tbe bouse or porch; the porch is on the north side of the house; its width I do not know; I have never measured it; its length is about twelve or fifteen feet, I guess; I do not know; it is an old-fashioned piazza, with wide door and latticed around. On the morning of September 17,1 was in my room and heard some one knock at the front door. I stepxDed in the front room to the window and called to them that I would be down in a few minutes. I stepped back and dressed, opened the door and saw two strangers; they said to me, ‘we want to see Russell;’ I said he was asleep and then they asked me to tell him to come down; said they didn’t want to see me, and to tell him some gentlemen wanted to see him. Russell said, ‘who is it ?’ and I said, T don’t know, they are strangers; come down.’ I went down myself and stepped into the back hall on the front porch and stood there until Russell came down; when he came down I stepped back and stood about midway the door. They said to me, ‘you stay back, and we will see you later.’ I did not do it; I stepped immediately to the front door near my son. Two pistols were drawn on my son in this way (indicating pistol pointing on each side). They then said, ‘we are Tom and Chai. White; you are aware you have-ruined our niece, Annie White, and we have come to make you marry her, or we will kill you before you leave our sight.’ Russell said, ‘I did not ruin her; I was not the first one there.’ They said, ‘you did ruin her, and you will marry her or we will kill you before you leave our sight.’ I stepped between them and begged them not to kill my son. I told them if they could not spare him for his own sake, then for mine at least. I turned to the brothers and they said, one of them, ‘I am deaf,’ and then one said, ‘you go back, we will see you later.’ I stepped inside the door and they again said, ‘you go back or we will kill you.’ And my son said, ‘go,’ and I said ‘I will go.’ The deaf man followed my son and kept him from going into the door. They said, ‘you will go with us,’ and Russell said, ‘I do not love her, and T cannot do it.’ Two pistols fired immediately, and be fell. He fell straight back with his head towards the west, towards the bench that he had been sitting on. Yes, when I went to the door he was seated on the bench. That bench was right along on the west side of the porch, and he was seated here (indicating) on the bench at the west end of the porch. The bench was about five feet long. He was about midway the bench, about the middle of the porch. The bench was sitting one end back against the lattice. They were talking to me then — both pistols drawn on Russell. That’s when they said, ‘you go back, we will see you later.’ They were still talking to him. When he was shot I do not know whether I fell or sanie down, or what I did. I must have gotten up and went to my son to see if he was dead, and spoke to him, and he did not give me any answer. I thought he was dead and went immediately into the walkway of the yard. These two men just stepped off after they had killed him. My son, when he was shot, got up and came to the door and would have come in but they kept him from coming and pushed him a little to one side, and I saw his hand go up before his face. My son did not have a thing in his hand, not a thing; he threw up one hand; I saw only one hand. Two shots were fired right together and then a third one; I do not know whether both men shot or not; there were two shots though, right together, and then a third. My son was hit in the back of the head and in the face. One man was on each side of my son when he was sitting down and when he was standing. They had their pistols then.”</p> <p>(Mrs. Sherrill then described the position of her son and the two White boys. One thing in particular the reporter caught was the close proximity of the White boys to Russell Sherrill, that is to say, they pressed him closely on each side, as Mrs. Sherrill went on to show. She demonstrated how his retreat was cut off from the door, pistols- in hand.)</p> <p>“My son stepped out towards tbe deaf man, and be turned then to the left to pass the tall man. Chai. White moved forward to the right. (Mrs. Sherrill here again takes up the position of the men.) Russell fell to the left toward the bench, ‘caticorner,’ not so much so however. When these men first came my son was in bed and I .told him to get up; he came down in a very few minutes; did not more than half dress himself; he just had on his pants and dress shirt and shoes; his shoes were ties, but not tied at the time, and he had a hat on his head.”</p> <p>Q. Now, Mrs. Sherrill, Chai. White testified that you came out on the porch, took a seat and said you wanted to talk the matter over; that you were sorry this had come about; that you had tried to raise the family better. Did you say that? A. I did not say that.</p> <p>Q. Did you sit down? A. I did not.</p> <p>Q. State whether or not at the time your son was shot, he was making any attack upon either of the prisoners. A. Tie was not; he had'his hand up to ward off the pistol.</p> <p>Q. Did Thomas White touch you on the shoulder, as he testified he did * * * ? A. He did not.</p> <p>The prisoners testified that having heard that their niece had been ruined by the deceased, they went to the home of Mrs. Sherrill, where deceased lived, with a view and purpose of inducing him to marry their niece, 'and save the families the disgrace; that they each had a pistol, but there was no conspiracy between them to kill the deceased, and no intention of doing so, but thought they could persuade the deceased to marry the girl. Chalmers White testified in behalf of himself and co-prisoner: “When I left my sister-in-law’s, I started early in order that we might find him at home before he would leave. I had information of his probable leaving, and I had another reason for wanting to go early. I wanted it kept as quiet as possible until it was over. It was not more than three-quarters of a mile, possibly a mile, but I do not think over three-quarters. I arrived there, I think, about six in the morning. It was a dark, cloudy morning — a fog, and a very dark morning. We hitched our horses out in front of the porch or out from the house to a hitching post, and then went to the house and knocked; walked upon the piazza and knocked upon the door. A lady then answered it. My brother took part-in the conversation down to my sister-in-law’s ; he talked, but not as much as I did, and not as long; but he talked with her; Mrs. Sherrill came to the door and I told her good morning, and asked if Russell Sherrill was at home; she said, ‘yes.’ I told her I would like to see him on some business; she handed us two chairs; we sat down and waited till he came; presently he came down, his mother with him. I spoke to him and introduced myself and my brother; we both shook hands with him and I told him we wanted to see him on some business privately. He then said to his mother, ‘you go back into the house,’ which she did. She walked back into the hall, and he stepped back and closed the door. He then walked out on the piazza to the front end of the porch and sat down on the bench; we walked up near him, around him, in front of him. I said to him, ‘Mr. Sher-rill, you are aware of the fact that we came here to make you keep your promise.’ He replied, ‘I did not do it.’ I said, ‘you must marry her,’ and he said, ‘I cannot, I do not love her.’ And I said, ‘you can’t get out of it that way.’ He said, ‘I will fix it up, but I will not marry her, I will die first,’ and sprang to his feet in an angry, threatening attitude. I stepped back and drew a pistol. He said, ‘I will marry her,’ and I said, ‘I am glad of it.’ Mrs. Sherrill heard a part of the conversation and came out into the hall. She said, ‘what is the trouble ?’• — ‘don’t kill my boy,’ and I said ‘he has ruined our niece, Annie White, and we have come up to get him to marry her.’ She said, ‘well, do not kill my boy,’ and I said, ‘I do not want to kill him.’ She said, ‘let’s talk the matter over and save shame and disgrace.’ I told her I would. She' sat down on a chair just back of us, and said she was sorry her family had come to this; that she had tried to raise the boy better. I then turned and walked back to where Mr. Sherrill'was and told him to come on and go with us. He then seemed very angry, began to advance .and then said, T will die first/ and as he said that he sprang towards us, or forward, and I shot him. My brother fired at him about the same time. I do not know who shot first, we shot nearly at the same time. As he started towards me, Mrs. Sherrill ran from the porch into the hall, screaming at the top of her voice, and as she fell to the floor, we walked off; she was not inside when we fired; she screamed and fan into the hall. ^ He was very close to me, and I think just a little, possibly, to the center of the door; he was very close to me. I thought he was going to strike me Avith something Avhen he advanced; he Avas in a striking attitude and in an -angry frame of mind. I think he was going to strike me because he was rushing on me, and I thought I saAV something. Pie could see that I Avas armed, and I thought he Avas armed, and I did not think he Avould attack me unless he was. I could not see the knife in his hand; he could haA^e held a knife or something I could not see; it Avas a dark,.cloudy morning, a very dark, foggy morning. I went there Avith no purpose or idea of killing, him, no intention whateAm; it was only to get him to marry the girl and save shame and disgrace. I never saw him before. My brother and I had never at any time talked about killing him. I did not know I had hit him. I knew I had shot, but did not know-1 had hit him. When he started at me, I retreated a step, from time to time, when he started back towards the further end.of the porch from where my brother was Avhen he sprang forward; this threw my brother behind him; my brother had been to the left; and this threw my brother almost diagonally between us.” The prisoners show on the map what they mean. “When he sprang up he said something to my brother," and he said for him to talk to me, that be could not bear. (Further description as to porch and position of men.) The three of us would have made a triangle or three sides of a triangle. He rushed on me with his arm drawn bach, when I fired, as if to strike, just this w'ay (witness shows striking position of right hand and arm drawn back as if to deliver a blow.) I left there; yent to my buggy. I did not anticipate any trouble. I took the pistol in case I would need it to protect myself against any one and any danger; was not going up looking for trouble, no, not even with Sherrill. I carried the pistol though. I would rather have a pistol through the country.”</p> <p>Q. So you expected trouble, did you ? A. I did not know what I would find, I did not know how it might terminate.</p> <p>Q. So you took him along to help kill this man if he didn’t marry your niece, is that it? A. I didn’t take him; he went because we were going on a dangerous mission.</p> <p>Q. And you expected trouble, eh? A. No, but I didn’t know the man, and didn’t know how it would end.</p> <p>“From the time we struck that porch until the time he came down, I presume the whole time would be about four or five minutes before he was lying on his back on the floor, dead. It was not my intention to kill him; he didn’t give us the opportunity to hear his refusal and go back to Mrs. Archer’s quietly. I knew my brother had a pistol; he borrowed it. I do not know where he borrowed it; in Concord, I guess. He sprang to his feet and we drew our pistols; the pistols were not pointing in his face, pointing at him though, I suppose; my brother’s was pointing at him too.”</p> <p>By the State: Q. Did you see anything in his hand ? A. I could not tell what he had in his hand.</p> <p>Q. Did you see the knife ? A. He had his hand drawn back this way (striking attitude), drawn back as though to strike. I could not see what was in his hand.</p> <p>Q. Was there anything in his hand ? You say you could distinguish Mrs. Sherrill was a lady when she came to the door. Now, if be bad bad a knife wby couldn’t you bave seen that? I say, wby couldn’t you? A. I did not know wbat be-bad in bis band; I thought there was something in bis band; I could not tell wbat it was.</p> <p>Ke-direct: “My testimony was interrupted very much by counsel on both sides at the preliminary bearing, and I could not give the testimony as fully as I wanted to. I never bad any difficulty in my life before; yes, I stated a while ago, I thought I shot twice; I ascertained I did not after the pistols bad been examined and brought to the attorney’s office. That was the day of the preliminary bearing; the pistols were examined and my pistol showed I shot only once; my brother shot twice, as bis pistol showed. I did say a while ago we did not want to kill him, and because that would bave made matters more public, worse, and the shame would bave gone further. I bad no intention of killing him.”</p> <p>Thomas White’s testimony in behalf of himself and co-prisoner (be is deaf) : “I can bear through a trumpet in my right ear, but not as .well as I can in the other. It was about six when we got to Mrs. Sherrill’s bouse. It was daylight; the morning was cloudy and threatening rain. The first thing after arriving we tied our horses (two horses and a top buggy) to a hitching post about 40 or 50 yards off. We went up to the house and my brother knocked at the door; soon after he knocked, Mrs, Sherrill responded; when she came to the door a conversation took place between her and my brother. I knew Mrs. Sherrill, and did not see why she did not know me. I did not hear the conversation after Mrs. Sherrill came to the door; she set out two chairs; my brother took one and I took the other, occupying opposite sides of the piazza. I said to my brother in a low tone, after she had gone back in the house, ‘is he at home?’ He nodded assent. In a short time after that Russell Sherrill came down on the piazza; my brother spoke to him, shook hands with him, introduced him to me and I shook hands. I had seen him. but was not personally acquainted, with him. After he came out, Mrs. Sherrill also came out,, and a conversation took place between them. Sherrill said something to liis mother and she went back into the hall. Sherrill followed her and closed the hall door; he closed the inner door, then came back and sat down on the bench at the end of the piazza; my brother then went to him, and again the conversation began; in a few minutes after the conversation he sprang to his feet and assumed a threatening attitude. At that time my brother drew his pistol and stepped back one step. I did not know what had passed; I was just judging from my brother’s actions; then almost immediately after that, just after the pistols were drawn, Mrs. Sherrill came out of the hall and a conversation took place between her and my brother. We were all sitting down at the beginning, but at the time Mrs. Sher-rill came out we were all standing, and then the conversation took place between her and my brother; Mrs. Sherrill turned to me and I said, Talk to my brother, I cannot hear you,’ and just at that moment she stepped between us and I touched her on the arm or shoulder and told her not to come between us; this seemed to infuriate Sherrill, from his actions and expression of his face. He was directing his conversation to me after I touched his mother on the shoulder. It seemed as if I had angered him very much. I said, Talk to my brother, I cannot hear you.’ I then asked my brother if Sherrill would marry her, and he said he would; then I said to Sher-rill, Tome and go in the buggy.’ Mrs. Sherrill had stepped back a few paces and was near the hall door. The next thing, Sherrill advanced very rapidly on my brother, my brother retreated, and I kept in line with Sherrill, and after passing just beyond the door, half way, he drew back as if to strike. I saw his hand fly up; I did not see a blade was in it, my pistol was not drawn, I drew and fired, my brother fired just the instant I did; I think my brother shot just the moment before I did. Sherrill fell diagonally with his head towards the end of the porch; at the moment he fell my brother walked around. We went out, loosed the horses, and I said, ‘let’s go and surrender at once,’ and he said ‘let’s go back and tell Jennie what has happened.’ My object in going was-to induce him to marry my niece and save disgrace, not to themselves, but to all concerned.”</p> <p>The prisoners appealed from a judgment pronounced upon the verdict of guilty of murder in the second degree.</p>

INDICTMENT against E. C. McGinnis, beard by Judge Walter H. Neal and a jury, at tbe March Criminal Term, 1905, of. tbe Superior Court of Wake County. Erom a judgment of “guilty” upon a special verdict, tbe defendant appealed.

INDICTMENT against M. T. Clayton, beard by Judge R. B. Peebles and a jury, at the April Term, 1905, of the Superior Court of Peeson County. Erom a judgment of guilty upon a special verdict, the defendant appealed.

INDICTMENT against Mark Lytle, beard by Judge Walter M. Neal and a jury, at tbe April Term, 1905, of tbe Superior Court of Buncombe County. Erom a verdict of guilty and judgment tbereon, tbe defendant appealed.