Volume 139 — North Carolina Reports

<p>ActioN by Mary E. Davidson and B. E. Davidson, ber bnsband, against J. D. Bardin, Administrator of Richard Bardin, heard by Judge B. F. Long and a jury, at the Spring; Term, 1905, of the Superior Court of PeequimaNs County.</p>

ActxoN by Selby Bonner, Administrator of Mary E. Bonner, against C. A. Stotesbnry and 0. A. Stotesbnry, executor of R. B. Stotesbnry, heard by Judge 0. W. Ward and a jury, at the Spring • Term, 1905, of the Superior Court of Hyde County.

ActioN by Thos. LL Latham and others against Roanoke Railroad and Lumber Co., heard by Judge G. 'W. Ward upon the pleadings and facts agreed at the July Special Term •of the Superior Court of WashingtoN County.

<p>Wills — Rule in Shelley’s Qase — Executory Devises.</p> <p>1. Where by a clause in a will, land is given to P “for life, and after liis death to his heirs (lawful) forever,” P took an estate in fee simple under the Rule in Shelley’s Case.</p> <p>2. Where a will gave to a son who resided in Mississippi, the privilege of coming back to North Carolina and taking certain land, or remaining where he was, and receiving4 other benefits under its terms, and he preferred to remain in JV1ississippi and elected to take other property bestowed upon him by the will, held, the estate in said land never vested in him, it being an executory devise dependent upon a contingency which did not occur, and the doctrine that conditions in restraint of alienation are void has no application.</p>

<p>ActioN by P. H. Williams, Administrator of D. L. Prich-ard, against Joseph H. Hughes and others, heard by Judge B. F. Long and a jury, at the Spring Term, 1905, of the Superior Court of Camden County, upon exception to the taxation of costs.</p> <p>At the first trial of the case judgment was entered for the defendants upon a verdict in their favor and plaintiff appealed. This court granted a new trial for error in the refusal of the judge to give instructions. 136 N. C., 58. At the second trial, the defendants again recovered and in the judgment the court taxed the plaintiff with all'the costs of the defendants in the action, except the costs of the appeal to this court, which included the cost of the transcript and certificate. Plaintiff excepted and appealed upon the ground that he was not taxable with any of the costs of the first trial.</p>

ActioN of ejectment by W. M. Jennings and wife against W. H. White, heard by Judge E. B. Jones and a jury, at the November Term, 1904, of the Superior Court of Pasquo-tane County. From a judgment for the plaintiffs, the defendant appealed.

PROCEEDING under entry laws beard before Judge Q. W. Ward, at the Spring Term, 1905, of the Superior Court >of Dare. From the judgment entered dismissing the proceeding, the protesting parties, the plaintiffs, appealed.

AotioN by State Board of Education, and another against M. Makely, heard by Judge William A. IIolee and a jury, at the May Term, 1904, of the Superior Court of Hyde County. Erom a judgment for the defendant, the plaintiffs appealed.

AotioN by L. Wilkins and others against Anna Norman, beard by Judge G. IF. Ward, upon the pleadings and agreed facts, at the July Special Term of the Superior Court of WasiiingtoN County. Benj. Pbelps on October % 1872, executed a deed conveying the land in controversy to Berrick Norman.

ActioN of ejectment by John L. Hinton against Acom Moore, heard by Judge B. F. Long and a jury, at the March-Term, 1905, of the Superior Court of Pasquotawic County. The ordinary issues in ejectment were submitted. Evidence was introduced by the plaintiff tending’ to establish his claim. The defendant offered no testimony.

ActioN to recover possession of a mule, beard before Judge E. JB. Jones and a jury, at the Spring Term, 1905, of the Superior Court of Hertford County. From a judgment for plaintiff, the defendant appealed.

ActioN by M. Moore and others against S. K. Fowle and others to recover damages for cutting timber upon land, now pending in the Superior Court of Beaueoet County. His Honor, Judge G. W. Ward, granted a restraining order enjoining the defendants from cutting timber upon the land, and on the hearing continued the injunction. From this order, the defendants appealed.

ActioN by William Pritchard and others against G. H. Mitchell and others, beard by Judge E. B. Jones, upon demurrers, at tbe Spring Term, 1905, of the Superior Court of Bertie County. This action was instituted July 5, 1904, by Wm. Pritchard and C. W. Mitchell for the recovery by said Pritchard of the amount of a note executed by the defendants, Carter, Matthews .& Co., J. H. Matthews, deceased, and Geo. H. Mitchell to C. W. Mitchell.

Action for malicious prosecution by C. A. Merrell, by bis next friend, against Thomas Dudley, heard by Judge J. L> Webb and a jury, at the Spring Term, 1905, of the Superior Court of Cabtebet County. Erom a judgment for the defendant, the plaintiff appealed.

ActioN by S. A. Stocks against Jesse Cannon and J. S. Cox, Executors of T. C. Cannon, heard by Judge J. L. Webb and a jury, at the April Term, 1905, of the Superior Court of Pitt County. Erom a judgment for the plaintiff, the defendants appealed. This is an action to recover for services alleged to have been rendered to the testator of the defendants. Plaintiff was introduced as the first witness for himself and testified as follows: Q. You are the plaintiff in this action?

AotioN by Jackson Yandiford and wife against John C. Humphrey and wife, beard by Judge J. L. Webb and a jury, at the March Term, 1905, of the Superior Court of Pitt County. From a judgment for the defendants, the plaintiffs appealed.

ActioN by M. E. Tyson against J. H. Joyner, beard by Judge J. L. Webb and a jury, at tbe March Term, 1905, of the Superior Court of Pitt County. This action was brought to recover on a bond for $200, executed in 1891 by defendant and payable to J. L. Little or order. Defendant alleged, and there was evidence tending to show, that he at the request of his brother, S. V. Joyner, signed the note for the accommodation of the latter, and gave a mortgage to secure it.

<p>ActioN by E. D. S. Dixon against J. O. W. Jones, to recover damages for breach of covenants of warranty contained in two deeds executed by defendant to plaintiff, beard by Judge W. B. Councill and a jury, at tbe December Term, 1904, of tbe Superior Court of Gbebnb County. From a judgment in favor of plaintiff, be appealed.</p>

AotioN for mental anguish by James L. Dayvis against the Western Union Telegraph Co., heard by Judge B. F. Long and a jury, at the September Term, 1905, of the Superior Court of Beaufort County. There was testimony to the effect that on the morning of June 26, 1904, plaintiff’s wife left Durham, N. C., to go to Washington, N. C., to which place her husband had recently moved his residence.

Tbe petitioner, M. E. McCown, was attached for contempt by His Honor, Judge G. W. Ward, at the August Term, 1905, of the Superior Court of Dueham County. He was adjudged in contempt and ordered to be imprisoned in the county jail for thirty days and fined two hundred dollars.

<p>ActioN by State ex rel North Carolina Corporation Commission against the Atlantic Coast Line Eailroad Company, beard by Judge M. II. Justice and a jury, at the November Term, 1904, of the Superior Court of Ware County. From the judgment rendered, the plaintiff appealed.</p>

ActioN by Anua B. Burnt against L. 0. Braswell and others, heard by Judge ~W. B. Allen, upon an agreed statement of facts, at the May Term, 1905, of the Superior Court of Nash County. At the October Term, 1888, of the Superior Court of Nash County, N. W. Boddie recovered judgment by default against Exum Braswell, adjudging him to be the owner and entitled to the possession of the tract of land in controversy.

This is a motion in tbe cause, by G. W. Oarraway and wife against T. U. Lassiter and others, to set aside an order of sale and tbe decree of confirmation, made in a special proceeding lately pending in the Superior Court of Greene County, heard by Judge Iienry B. Bryan, at Chambers, at New Bern, on the 6th day of January, 1905, upon appeal' from certain findings and orders of the Clerk of the Superior Court.

ActioN by W. T. Hughes & Co. against The Peper Tobacco Warehouse Co., heard by Judge C. M. Ooolce upon the pleadings, at the January Term, 1905., of the Superior Court of Feanelin County. From a judgment sustaining the demurrer, the plaintiff appealed.

<p>Deads — Timber Contracts, Construction of- — Repugnant Clauses.</p> <p>1. Growing timber is a part of tbe realty, and 'deeds and contracts concerning it are governed by tlie laws applicable to that kind of property.</p> <p>2. Where a deed conveys all timber now standing or which may be standing on certain lands during the period of fifteen years from and after the time when the grantee shall begin to cut and remove said timber, and the time in which to begin to cut and remove said timber is not limited, and provides by a subsequent clause that the grantor assures unto the grantee the full term of fifteen years, as above set forth, within which to cut and remove the timber hereby conveyed, held, that the instrument conveys a present estate of absolute ownership in the timber defeasible as to all timber not removed within fifteen years from the time of commencing to cut, allowing a reasonable time to begin such cutting. (The opinion in Mfg. Go. v. Hobbs, 128 N. C., 46, criticised).</p> <p>3. That part of the deed giving an unlimited time to cut and remove the timber will be rejected because it is indefinite and repugnant to the first part of the stipulation as to time, and because it is contrary to the intent and purpose of the parties as indicated by the entire instrument.</p>

ActioN by J. T. Sberrod against Farmers’ Mutual Eire Insurance Association, to recover loss on policy of fire insurance, beard on appeal from a justice’s court by Judge W. B. Gouncill and a jury, at March Term, 1905, of tbe Superior Court of MaiítiN County. From a judgment in favor of the plaintiff, the defendant appealed.

ActioN by S. J. King against T. A. Hobbs, beard by Judge O. II. Allen and a jury, at tbe May Term, 1905, of tbe Superior Court of SampsoN County.

, ActioN by Hickson Lumber Company and others against Gay Lumber Company and others, heard by Judge Fred Moore, at the November Term, 1904, of the Superior Court of Lenoie County. , , .This is an appeal from an order allowing certain , sums claimed .by the Norfolk National Bank, and directing the receivers to allow the .same. . The defendants, assignees of S. H,. Loftin, appealed. . .

• ActioN by A. IL Hawks against A. M. Hall, heard on appeal from a justice of the peace by Judge O. II. Allen and a jury, at the May Term, 1905, of the Superior Court of Sampson County. This action was begun in a justice’s court, and was to recover the sum of $34.75, with interest thereon from the 12th day of September, 1903. Summons was issued on May. 16,, 1904, and ease was tried before B. II. Hubbard, J. P., on May 24, 1904.

ActioN by Elislui Porter against T. J. Armstrong and others, hoard before Judge 0. Ii. Allen, at the February Term, 1905, of the Superior Court of PeNdeb County. This is an appeal by the plaintiff from an order setting-aside the report of commissioners appointed pursuant to the act for draining and darning- lowlands, chapter 30 of The Code and amendments thereto.

Actior by Charles Darden and others against Nelson Timber lake and others, heard by Judge W. B. Allen upon the pleadings and admissions at the May Term, 1905, of the Superior Court of WilsoN County. From the judgment rendered, both parties appealed. PlatNtiKfs'’ Appeal.

ActxoN by Emeline Kirkman and another against J. B. Holland and others, heard by Judge W. R. Allen npon an agreed statement of facts at the Eebrnary Term, 1905, of .the Superior Court of Graven County. From a judgment for the defendants, the plaintiffs appealed. This is an action for the recovery of two lots in the city of New Bern. Plaintiffs claimed under the following chain of title: Deed from Joseph Merkell to Jno.

Action by J. B. Outlaw, Administrator of Axy Simmons, deceased, against Joel J. Garner, Administrator of Racliel Garris, deceased, beard by Judge W. B. Allen and a jury, at the August Term, 1905, of the Superior Court of Dupi.iN County. From a judgment for the defendant, the plaintiff appealed.

ActioN by E. E. Stone and others against Clyde Steamship Company, heard by Judge O. H. Allen upon appeal from a justice of the peace, at the April Term, 1905, of the Superior Court of New Hanover County, on the following case agreed: 1. The plaintiffs are a partnership doing business in Wilmington, and the defendant is a corporation operating a line of steamships for the purpose of carrying freight and passengers between New York and Wilmington and other points. 2.

ActioN by J. W.” Peacock against Ida Barnes and others, heard b j Judge W. B. Councill upon the pleadings at the February Term, 1905, of the Superior Court of Wilson County. From a judgment overruling the demurrer, the defendants appealed.

<p>Contracts — Reformation and Cancellation — Attorney and Client — Trustees—Usurious Transaction — Documentary Evidence — Presumptions from Failure to Produce Evidence — Notice to Produce — Partial New Trial.</p> <p>1. Where the plaintiff’s land was advertised for sale under a deed of trust and prior to the sale the defendant made a contract with the plaintiffs, agreeing to buy the land for himself with the stipulation that he would sell it to the plaintiffs for the amount of the purchase money paid by him, “with a reasonable advance thereon,” as a profit to himself, the total sum to be divided into three installments, and when the installments were paid in full, the defendant should convey the land to the plaintiffs, the full agreement to be reduced to writing after the sale; and the defendant bought the land at the sale for $1,475, and he and the plaintiff entered into a contract containing substantially the above stipulations, except that it fixed the amount of the purchase money at $2,115, held, that the plaintiffs have no equity to cancel or to reform the contract, there being no suggestion that defendant occupied any fiduciary relation to them at the time, or that there was any fraud practiced, and no issue asked as to the reasonableness of the price.</p> <p>2. It is not reversible error for the court to refuse to give an instruction in response to a prayer, where it appears that it was afterwards given by the court iii its charge.</p> <p>3. Where the defendant trustee in a deed of trust was advised by his attorney that he could not buy at his own sale, and the attorney said that he could not represent him at all if he was expected to represent D, a prospective purchaser, but the attorney prepared the advertisement of sale as a courtesy to defendant, and after that became the attorney of D, having received a letter from the latter requesting that he act for him at the sale, and he further testified that he had completely severed his connection with the plaintiff as his attorney and represented D alone at the sale, it was proper for the court to refuse to instruct the jury that the attorney was in law the attorney of the defendant and D.</p> <p>The profit realized by tlie defendant, even if excessive, would not amount to usury, unless it was a mere device to cover and conceal an usurious transaction, and this would depend upon the intent with which the increase was exacted and in the absence of a finding of unlawful intent, the transaction will not be declared usurious.</p> <p>5. Where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control, and offers in lieu of their production secondary or other evidence of inferior value, there is a presumption or at least an inference that the evidence withheld, it forthcoming, would injure his ease.</p> <p>6. Where the pleadings themselves are notice to a party of the importance of certain writings in his possession, as evidence, notice to produce is not necessary. The failure to produce on notice merely increases the strength of the presumption or inference, or adds weight to the evidene'e, if any, offered by the other side as to their contents.</p> <p>7. Where two issues are independent of and clearly severable from the others, it presents a proper case for the exercise of the discretion of this court to restrict the new trial to said two issues.</p>

ActxoN by Timothy Donlan. against American Bonding & Trust Company, heard by Jzidge O. H. Allen, upon exceptions to report of referee at the April Term, 1905, of the Superior Court of New HaNoveb County. From the judgment rendered, both parties appealed.

ActioN by Samson Weeks against J. T. Wilkins and others, heard by Judge O. II. Allen upon an agreed state of facts, at the May Term, 1905, of .the Superior Court of Sampson County. From a judgment awarding the plaintiff four-eighths of the land, the defendants appealed.

ActioN by B. T. Daniels against J. Q. Homer, heard by Judge Q. W. Ward, upon an agreed state of facts, at the Spring Term, 1905, of the Superior Court of Daee County. From a judgment in favor of the defendant, the plaintiff appealed.

ActioN by Rufus Byrd, Administrator of James-E. Byrd, against Southern Express Co., beard by Judge G. S. Ferguson and a jury, at the May Term, 1905, of the Superior Court of Cumberland County. From a judgment of-nonsuit, the plaintiff appealed. Plaintiff sued to recover damages for the death of his intestate alleged to1 have- been caused1 by the negligence of the defendant.

<p>ActioN by Ira L. Kelly, Administrator, with the will annexed of T. K. Byrd, against S. R. Odum and others, heard by Judge O. H. Allen, at the May Term, 1905, of the Superior Court of Sampson County, upon the referee’s report on a motion to retax the bill of costs. Erom a judgment in favor of the plaintiff, the defendant, Odum, appealed.</p> <p>The executor of the will of T. K. Byrd having renounced, the plaintiff qualified as administrator with the will annexed, and on tbe day of his qualification was sued by his father, Thomas Kelly, before a magistrate, for one hundred dollars alleged to be due by the testator for services rendered in nursing him. Plaintiff did not resist a recovery, but permitted judgment to be taken by default. This was in 1891. Plaintiff then commenced this proceeding to have, the testator’s land sold to pay said judgment and a debt to another party of $7.50 due for medical services, which was admitted. The land was bought from the' devisees by the defendant, who denied that anything was due to Thomas Kelly, and, it seems, impeached the judgment taken before the magistrate as having been obtained fraudulently. An issue was submitted.to the jury, based upon this defense, who found that there was nothing due to Thos. Kelly. This A^erdict was set aside and the issue was submitted to another jury at a subsequent term, who found in the same way, that there was nothing due. Defendant was adjudged to pay the costs of the proceeding and the charges of administration. The clerk taxed in the bill $20 for attorney’s fee paid for bringing and prosecuting this proceeding, to which exception was taken by the defendant. The court directed the clerk as referee to ascertain and report if the services for which the fee was charged were rendered “in the interest of a fair administration of the estate and was a reasonable allowance.” The clerk reported “as a fact” that the services were rendered “in the interest of a fair administration of the estate,” and that $20 was not an unreasonable charge therefor. The court thereupon rendered judgment against the defendant for the costs and charges, including -said fee. Defendant excepted and appealed.</p>

<p>Tramways — Constitutional Law — Injunctions—Eminent Domain — Public Use — Timber Lands.</p> <p>1. The fact that proceedings had been instituted before a Highway Commission to acquire a right of way for a tramway or railway, and were pending in the Superior Court, does not prevent the court interfering by injunction with the construction of the proposed railway, where the result of that proceeding could not affect the plaintiff’s right to enjoin the defendants.</p> <p>2. The amendment made to sections 2056-2057 of The Code, by chapter 46, Laws of 1887, in so far as it authorizes owners of timber lands to condemn a right of way for tramways or railways over the lands of other owners for the exclusive use of the owners of the timber, is unconstitutional, in that private property can only be taken for a public use.</p> <p>3. The question, what is a public .use, is always one of law. Deference will be paid to the legislative judgment as expressed in enactments providing for the appropriation of property, but it will not be conclusive.</p>

ActioN of State ex rel J. M. Wallace against J. A. McPherson and The American Bonding Co., heard by Judge G. S. Ferguson, at the May Term, 1905, of the Superior Court of CuMBBRLAND County. This was an action against a Eegister of Deeds and the Bonding Company as surety, for penalty incurred for issuing a marriage license in violation of secs. 1814-16 of The Code. Subsequent to the institution of the action, the defendant McPherson died.

ActioN by Sherwood Higgs & Co. against Sperry & Hutchinson Co., heard by Judge Fred Moore, at the April Term, 1905, of the Superior Court of Waice County. In this action summons was issued March 21, 1905, and returned with the following endorsement thereon: “Eeceived March 22, 1905. Served March 22, 1905, by leaving a copy with E. E. Anthony, Auditor of Sperry & Hutchinson Co.,” signed by the sheriff of Guilford County.

<p>Hearsay Evidence — Conflicting Instructions — Negligence— Employee Rescuing Property of Employer — Obvious Danger — Duty of Employee — Recklessness.</p> <p>1. A, who had testified about a matter, cannot be corroborated by what B heard another witness say in A’s presence about the matter. It is hearsay and incompetent.</p> <p>2. Where two instructions are conflicting, they must necessarily have confused the jury, and as it is impossible to tell upon which one the jury acted, the appellant has just reason to complain.</p> <p>3. When the employer’s property is set on fire by the negligence of another, the employee may attempt to rescue it, but not in the presence of obvious danger, and if he exposes himself rashly to obvious danger solely to rescue property, he cannot recover if he is injured in his attempt.</p> <p>4. Proof that the intestate had escaped from a burning building would absolve the defendant from liability for his death, unless the plaintiff replies by showing that his intestate re-entered the burning building for the purpose of saving his employer’s property and that at the time he did so a reasonably prudent person might well have done the same thing.</p> <p>5. An instruction that imposed only one limitation upon the right of an employee to recover his employer’s property endangered by fire, viz.: he must not act “recklessly,” is erroneous.</p>

ActioN by W. L. Hudson against Isham Hodge, beard by Judge G. S. Ferguson and a jury, at the March Term, 1905, of the Superior Court of Cumberland County, upon appeal from a justice of the peace. Erom a judgment for the plaintiff, the defendant appealed.

ActioN by T. A. Green against tbe Hartford Life Insurance Go., beard by Judge W. B. Allen and a jury, at tbe February Term, 1905, of tbe Superior Court of Chaven County. From a judgment of nonsuit, the plaintiff appealed.

ActioN by Mattie Lee Smith and others against Nancy Proctor and others, heard by Judge W. B. Allen upon an agreed statement of facts, at the June (Special) Term, 1905, of the Superior Court of Nash County.

ActioN by the Virginia-Carolina Chemical Company against John F. McNair and others, heard by Judge O. H. Allen, upon the report of the referee, at the May Term, 1905, of the Superior Court of New Hanoveb County. C. IT.

Per Guriam: Plaintiff moved in' tbis court to affirm the judgment upon the ground that defendant had not stated her exceptions nor assigned errors, as directed by Rulé 27, of this court. The Code, section 550, required, and it is the law now, that the-appellant in his case on'appeal should “state separately, in articles numbered, the errors alleged.” Rule 27 is to the same effect. Clark’s Code, p. 920.

<p>Principal and Agent — Acts and Declarations of Agent — • • Master and Servant — False Imprisonment — Vindictive Damages — Abuse of Lawful Process — Issues.</p> <p>1. The court must be satisfied that an agency has been shown at least prima facie, before anything that the alleged agent has said or done can ’be submitted to the jury as evidence.</p> <p>2. In passing upon the question of agency, the court did not err in permitting the jury to consider “any evidence of the acts of M (an alleged agent), in connection with the work of the defendant, and whether the defendant was putting up the poles on the land claimed by the plaintiff, and whether M was in charge of the construction work with authority, and whether he was in control of the labor and material and gave direction” as to how the work should be done.</p> <p>3. Where the servant does a wrong to a third person, the rule re-spondeat superior applies, and the master must answer for the tort, if it was committed in the course and scope of the servant’s employment and in furtherance of the master’s business.</p> <p>4. A servant is acting in the course of his employment when he is engaged in that which he was employed to do, and is at the time about his master’s business. He is not acting in the course of his employment if he is engaged in some pursuit of his own.</p> <p>5. A finding that the defendant, by its servant, caused the plaintiff to be unlawfully arrested for the purpose of putting him out of . the way, so that its agents and servants might erect its poles on his land, makes the defendant liable therefor.</p> <p>6.Where the jury found that the defendant’s agent arrested the plaintiff not because the plaintiff had assaulted him, but to put him out of the way, and thereby prevent his resistance to an entry upon the land, it was a case where vindictive damages were allowable.</p> <p>7. The jury, in addition to compensatory damages, may award exemplary, punitive or vindictive damages, sometimes called “smart money,” if the defendant has acted wantonly or with criminal indifference to civil obligations, or has been guilty of an intentional and wilful violation of the plaintiff’s rights.</p> <p>8. In an action for abuse of process, it was not error to give the defendant’s prayer “that if the plaintiff assaulted M with his gun, the latter had the right to have him arrested, and the defendant would not then be liable,” with the following qualification, “unless the jury further find that M did not have the plaintiff arrested for the assault, but in order to get rid of him so that defendant’s work could go on.”</p> <p>9. An action for damages lies for the malicious abuse of lawful process, civil or criminal, even if such process has been issued for a just cause and is valid in form, and the proceeding thereon was justified and proper in its inception, but injury arises in consequence of abuse in subsequent proceedings.</p> <p>10. There is no error in refusing to submit issues tendered by the appellant if he has the full benefit of them in those which are submitted.</p> <p>11. The court does not approve of issues which embody evidentiary facts instead of the ultimate facts to be found by the jury, but where no harm has come to the appellant by reason of this defect, it is not reversible error.</p>

AotioN by Isliam Hodge against W. L. Hudson, beard by Judge G. 8. Ferguson and a jury, at tbe May Term, 1905, of tbe Superior Court of Cumberland County. From a judgment for tbe plaintiff, tbe defendant appealed.

ActioN by Thomas C. Coxe against Eobert Singleton, heard by Judge B. F. Long and a jury, upon appeal from a Justice of the Peace, at the August Term, 1905, of the Superior Court of ANSON County. The plaintiff alleged that he sold the defendant certain walnut lumber at a stipulated price, $20; that the defendant refused to take and pay for the spine.

ActioN by 0. 0. Love, Administrator of C. 0. Love, Sr., against Rosanna Love and others, beard by Judge Walter JI. Nealy at the August Term, 1905, of the Superior Court of UNION County. This is a proeceding brought by the plaintiff as administrator, against the widow and distributees for a settlement of his final account. The cause was referred to a referee; exceptions were filed to his report, and from the judgment rendered, plaintiff appealed.

<p>AotioN by J. E. Stack against Seaboard Air Line Railway for wrongfully ponding water on a lot owned by the plaintiff, tried by Judge Walter II. Neal and a jury, at the August Term, 1906, of the Superior Court of UNION County.</p> <p>The plaintiff alleged and offered evidence tending to show that the defendant’s road bed crossed a ravine or branch at a point below a lot which was owned by the plaintiff; that the defendant had constructed a culvert or drain under its road bed, which was insufficient to carry off the water of the branch in times of rain, and by reason of such defective and insufficient culvert, the waters of said branch were frequently ponded on the plaintiff’s lot, causing great damage to the same; that the culvert and road bed were built some forty years ago, but had only caused substantial damage to the plaintiff’s lot within the last four or five years.</p> <p>The defendant denied that the plaintiff owned the lot or that this was an insufficient structure. It also denied the damages and pleaded the statute of limitations, and offered evidence tending to sustain its answer.</p> <p>There were four issues submitted: (1) On the ownership of the lot. (2) As to the alleged negligence of the defendant. (3) On the damage done, and (4) On the statute.</p> <p>Under the charge of the court, the jury answered the first three issues in favor of the plaintiff, and, in response to the fourth issue, found that the plaintiff’s cause of action was .barred by the statute of limitations. There was judgment for the defendant and the plaintiff excepted and appealed.</p>

<p>ActioN by M. H. Hall against Western Union Telegraph Co., beard by Judge G. 8. Ferguson on demurrer, at May Term, 1905, of the Superior Court of OumberlaND County. From a judgment overruling the demurrer, the defendant appealed.</p>

ActioN by T. J. Perry against Parmer’s Mutual Pire Association of North Carolina and others, heard by Judge G. W. Ward and a jury, at the February Term, 1905, of the Superior Court of UNION County.

ActioN by Charlotte Trouser Co. against Seaboard Air Line Railway Co., heard by Judge Waller H. Neal and a jury, at the August Term, 1905, of the Superior Court of UNION, County. Action for injury to sample trunks.

ActioN by J. 0. Mabry against North Carolina Railroad Company, heard by Judge R. B. Peebles and a jury, at the June Term, 1905, of the Superior Court of GhnmroRD County. This was an action to recover damages for personal injuries caused by the alleged negligence of the Southern Railway Company. The ordinary issues in actions for negligence were submitted.

<p>Fire Insurance — Iron Safe Clause Construed.</p> <p>1. The provisions in the “Iron Safe Clause” of an insurance policy (1) That the assured shall make an inventory “within 30 days after the date of the policy” and (2) that he shall keep a set of books “from the date of the inventory as provided in the first section,” are not violated where the 'fire occurred within 23 days and before any inventory was taken or set of books kept, as the assured has the full period of 30 days after the date of the policy to make the inventory and a like period within which to comply with the provision as to keeping a set of books, unless the inventory is sooner taken.</p> <p>2. Where a clause in an insurance policy is ambiguously worded or there is doubt concerning its true meaning, it should be construed rather against its author than the assured, and any such doubt should be resolved in favor of. the latter.</p>

AotioN by J. P. Wilson against tbe Duplin Telephone Co. for a writ of mandamus from the Superior Court of DupliN County, heard by Judge W. B. Councill, at Chambers, in Kenansville, on the 6th day of September, 1905. From a judgment for the plaintiff, the defendant appealed.

ActioN by J. L. Propst against tlie Southern Eailway Company, heard by Jticlge R. B. Peebles, at the April Term, 1905, of the Superior Court of Guilford County, upon a motion of the defendant to remove the action under chapter 367 of the Acts of 1905. From the order of removal, the plaintiff appealed.

AotioN by Ella J. Bidwell against Geo. H. Bidwell, heard by Judge Walter H. Neal and a jury, at the February Term, 1905, of the Superior… Held: because at the time of the institu-' tion of said suit, and proceedings and decree therein, neither plaintiff nor defendant had any bona fide domicile in North Dakota, “but that defendant had gone to said State with no intent or purpose of becoming a resident, or acquiring a bona fide domicile therein, but with the sole purpose of…

ActioN by E. E. Glenn against Board of Commissioners, pending in tlie Superior Court of Moobb County, beard by Judge Walter II. Neal, at Chambers, at Monroe, on the 28th day of August, 1905.

This was a rule against B. F. Scarborough to appear and show cause why he should not be attached for contempt in not producing the will of Sam W. Scarborough for probate before the clerk of the Superior Court of Guilford County, heard by Judge Geo. W. Ward, by consent, at the August Term, 1905, of the Superior Court of Guilfobd County, on appeal from an order of said clerk adjudging the respondent in contempt.

ActioN by Danson Cunningham and others against the Seaboard Air Line Railway, heard by Judge Walter H. Neal and a jury, at the September Term, 1905, of the Superior Court of Wake County. This action was instituted by the plaintiffs, residents of Liverpool, England, for the recovery of the value of 500 bales of cotton alleged to have been burned by the negligence of the defendant.

ActioN by S. E. Davis against M. E. Evans, Administra-trix of A. M. Evans, deceased, on appeal from a justice of tbe peace before Judge H. R. Bryan and a jury, .at tbe November Term, 1904, of the Superior Court of Geanvilug County. Tbe plaintiff declared on a note given to him by the defendant’s intestate, and tbe defendant having pleaded payment, tbe question was held on that issue. Verdict and judgment for tbe defendant, and tbe plaintiff excepted and appealed.

ActioN by O. W. Lane against Board of Commissioners of Eowan County, heard by Judge B. B. Peebles, upon an agreed statement of facts, at the August Term, 1905, of the Superior Court of Eowan County. Civil action begun in justice’s court and, upon appeal, heard in the Superior Court on an agreed statement of facts: The plaintiff is and was at the times hereinafter mentioned, a resident of the State of Virginia.

AotioN by George Bernard against Baxter Shemwell and others, heard upon demurrer, by Judge Henry B. Bryan, at the April Term, 1905, of the Superior Court of DavidsoN ■County. From a judgment sustaining the demurrer, the plaintiff appealed.

<p>ActioN by 0. Y. Walker and others against W. J. Miller, beard by Judge B. B. Peebles, at the March Term, 1905, of the Superior Court of Obange County.</p> <p>This is an action for the recovery of crops, instituted ip. justice’s court, brought by appeal to the Superior Court, and heard by His Honor, Judge Peebles, who by consent, found the facts respecting the title to the land upon which the crops were grown. Eor some time prior to 1893, Jas. Webb, Jr., and Jos. C. Webb, were engaged in mercantile business, as co-partners, under the firm name and style of Jas. Webb, Jr., & Bro. Jos. C. AVebb died in the year 1893, leaving a last will and testament, properly executed and proven to pass real and personal estate, naming Jas. AATebb, Jr., executor, who duly qualified. He bequeathed and devised his entire estate to his widow, Alice AVebb.</p> <p>AVith the full knowledge and consent of said Alice AVebb, the surviving partner and executor continued to conduct the said mercantile business under the same name and style. Mrs. Webb did not become a member of the firm, but permitted and consented that the executor should use her husband’s estate to carry on the business as it was done prior to his death.</p> <p>James AVebb, Jr., died in February, 1904, intestate, leaving as his heirs at law and distributees, Mary AVebb, his widow, and Brown R. AVebb, and J. C. Webb, his sons. The estate of Jos. C. AVebb was not settled at the time of the death of said Jas. AVebb, Jr.</p> <p>A. J. Ruffin and LI. AV. AVebb were appointed and duly qualified as administrators of Jas. AVebb, Jr., deceased. T. N. AATebb and J. Cheshire AVebb were appointed administrators, with the will annexed, of Jos. C. AVebb, deceased. On the loth day of February, 1904, the said administrators joined in the publication of a notice to debtors of the firm of Jas. AVebb, Jr., & Bro., to make prompt payment, concluding : “We take great pleasure in assuring the old friends and patrons of this firm that the business is to be continued indefinitely under the same style and management, and we earnestly solicit the continuance of your valued patronage, promising to give you, at all times, the best possible values, together with the most courteous treatment.” Neither of the administrators put any money into the business, nor did they intend to form a new firm, but did intend to give notice that the business would be continued under the firm name and style of Jas. Webb, Jr., & Bro., with the funds belonging to the estates of the deceased partners, which had been invested in said business. This action was taken with the full knowledge and consent of the heirs, distributees, devisees and legatees, of both of said deceased partners. On July 18, 1904, the property and assets of the firm of Jas. Webb, Jr., & Bro. were sold to H. W. and J. 0. Webb. The old firm was continued for the sole purpose of collecting the debts and settling the business. J. Oox Webb was appointed agent to collect the debts due the firm.</p> <p>Jas. Webb, Jr.,' & Bro. held a judgment against defendant Miller, duly docketed in Orange County. D. S. Miller held a mortgage on the lands of defendant Miller, which he duly foreclosed under power of sale therein. The crops in controversy were growing on the lands at the time of the sale. J. Oox Webb became the purchaser at the sale, paying the purchase. price from money collected by him on account of the debts due Jas. Webb, Jr., & Bro., and took deed therefor to Jas. Webb, Jr., & Bro. Soon thereafter, Alice IT. Webb, widow of Jos. 0. Webb, and B. E. Webb, J. Oox Webb, children, and Mary B. Webb, widow of Jas. Webb, Jr., executed a deed for said land to plaintiffs. The land brought at said sale an amount in excess of the mortgage debt. In an action brought by defendant Miller, the administrators of Jas. Webb, Jr., and Jos. 0. Webb intervened; the said Miller claimed and recovered on account of his homestead interest in said land, $112.75, the balance, $55, being applied to the judgment held by said administrators. His Honor was of the opinion, upon the foregoing facts, that as the, title to the land did not pass by the deed from D. S. Miller to Jas. Webb, Jr., & Bro., the plaintiffs acquired none by the deed of Mrs. Alice Webb and others. He rendered judgment dismissing the action. The plaintffs excepted and appealed.</p>

ActioN by Della Tussey and ber husband against L. A. Owen, Executor of Anderson Owen, deceased, beard by Judge. B. F. Long and a jury, at tbe August Term, 1905, of tbe Superior Court of Davidson County. Tbis is an action to recover on a specific contract or agreement set out in tbe complaint for services rendered by plaintiff Della, to ber father, Anderson Owen. Tbe material allegations of tbe complaint are denied in tbe answer.

ActioN by E. E. Lindsay and others against John M. Austin, heard by Judge Walter H. Neal and a jury, at the August Term, 1905, of the Superior Court of Unios County. This was an action of ejectment to recover two tracts of land. The court submitted the following issues: 1. Are the plaintiffs the owners and entitled to the possession of the lands described in the complaint? Ans. Yes. 2. Was the defendant in the possession of the lands at the time this action was brought ? Ans.

<p>Railroads — Collisions — Negligence— Proximate Cause ■ — - Nonsuit — Sufficiency of Evidence — Burden of Proof.</p> <p>1. It is the duty of the judge to nonsuit, when the evidence is not legally sufficient to justify a verdict for the plaintiff.</p> <p>2. In an action for damages for an injury from a collision, evidence which merely shows that it was possible that the failure to stop the train caused the injury, or merely raises a conjecture that it was so, is legally insufficient and should not be submitted to the jury.</p> <p>3. In an action for damages for an injury from a collision, with defendant’s train, the burden of proof was upon the plaintiff to show that the alleged negligence of the engineer in not stopping his train sooner than he did was not only the cause, but the proximate cause of the injury.</p> <p>4. Evidence that the plaintiff, driving his horse and buggy, crossed the defendant’s track and after he had gotten across and when distant from 15 to 40 feet and about the time the engine passed the crossing, the horse began to back and continued backing and backed into the cars; that the engineman was looking out at the plaintiff and slackened the speed of the train, which was going very slowly and after plaintiff’s buggy struck it stopped very quickly, in 15 feet of the crossing according to one witness, and within two or three car lengths 'according to the plaintiff, held, that the plaintiff failed to make out a’case of actionable negligence.</p> <p>Hoke, J., and Clark, C. J., dissenting.</p>

<p>Issue devisavit vel non, on a paper writing propounded as the will of Elijah Pope, deceased, transferred from the clerk, and heard by Judge B. F. Long and a jury, at the January Term, 1905, of the Superior Court of Iredell County.</p> <p>There was testimony to the effect that there were present at the execution of the paper, the alleged testator, D. J. Eul-bright, a justice of the peace, Martin Miller, Candace Pope and Charlie Pope.</p> <p>D. J. Eulbright prepared the paper and same was signed by Elijah Pope as his last will and testament in the presence of two witnesses; Martin Miller signed his name as subscribing witness and then wrote the name of the other witness, Candace Pope, who “helt” the pen while this was done, and who had been requested by the testator to subscribe as the other witness.</p> <p>Martin Miller, one of the subscribing witnesses, testified to the execution of the paper writing by Elijah Pope, and that he signed as subscribing witness, and in reference to Candace Pope, who signed as witness, said: “Candace asked me to write her name. She had hold of the pen all the time I was writing her name. She and the old man asked me to write her name.” Candace Pope testified: “I am daughter of Elijah Pope and lived with him. I was there the latter years of his life. Mr. Fulbright came over; father sent for him; got there about dusk; Martin Miller was there. Father signed the paper. I signed it. Father asked me to sign it. My name is C. L. Pope. I had hand on the pen; I signed it. Nobody held my hand. When I signed it I was standing at Martin’s back; he was sitting at a chair at a table. He had the pen. I held the pen at the end; in this way my name was put to the will. I asked him to hold the pen. My daddy was sitting there; Mr. Fulbright was there; father was 84 years old at the time. lie seemed like he always did. He died about ten months after that, I think, am not certain. He complained of heartburn; went off to the bottoms and died there; died suddenly; don’t know what was the matter with him. His mind was good as usual.”</p> <p>It was also in evidence that Candace Pope could write. After the witnesses to the paper writing had testified, the propounder offered the same as the will of Elijah Pope. The caveators objected for that the subscribing witness, C. L. Pope, stated that she could write but did not herself subscribe her name, but authorized the other witness, Miller, to write her name, and she held the end of the pen while he wrote her name, and that therefore she did not subscribe her name agreeably to tlie requirements of the statute." The objection’was sustained. The propounder excepted and, from judgment against him, appealed..</p>

AotioN by R. R. Clark against the City of Statesville, pending in the Superior Court of Iredell County, beard by Judge B. F. Long, at Chambers at Statesville, on the 7th day of October, 1905. .

PetitioN by tbe plaintiff to rehear this case, which was decided at the Spring Term, 1905 (138 N. C., 750), no written opinion being filed.

<p>Actiom by E. G-. Campbell and others against Cbas. Ever-hart and others, heard by Judge Henry B. Bryan and a jury, at the April Term, 1905, of the Superior Court of DavidsoN County.</p> <p>This is an action for the recovery of real property, a parcel of land in Lexington township. Plaintiffs, in support of their claim to title, put in evidence a deed dated November 22, 1870, from Susan Humphreys “to the lawful heirs of B. E. Hilliard and their heirs.” Hilliard was the son of Susan Humphreys and the plaintiffs are the grandchildren of said Hilliard and claim under the deed for the reason that their mothers (who are now dead) were the children of Hil-liard and therefore answer to the description in the deed of the persons who were intended to take thereunder. There was no proof of title in Susan Humphreys, but. there was testimony which plaintiff insists tended to show that Hil-Eard either entered upon the land originally or continued in possession after the date of the deed to his heirs (22nd Nov., 1870), by her permission, and is, therefore, estopped to deny her title. It is unnecessary to set out this testimony in order to an understanding of the point upon which the case is decided. There was testimony to the effect that Hilliard had occupied the land for twelve years prior to the date of the deed of Mrs. Humphreys in 1870, and that he continued in possession until his death in 1898, with brief interruptions, his children living there with him most of the time during their minority and after they became of age, and that he had conveyed a part of the land to his wife and other portions to Darr and Leonard.</p> <p>The court charged the jury, among other things not necessary to be stated, as follows: “(1) The burden of the issue is upon the plaintiffs. They must recover upon the strength of their own title and not the weakness of the defendants. They must show title in themselves, and that they were entitled to the possession at the commencement of the action. (2) Tbe court - instructs the jury that the deed introduced by the plaintiffs in this action is sufficient to vest in them the legal title to the land described in the co.mplaint and to-authorize them to take possession of the same, nothing else appearing.” Defendants excepted.</p> <p>And in response to prayers from the plaintiffs, the jury were instructed as follows: “(1) There is no evidence of exclusive, continuous.and adverse possession under color of title on the part of the defendants for seven years, and unless you find from’ the evidence that the defendants have had adverse and exclusive possession for the period of twenty years under known and visible metes and bounds, you will answer the first issue 'Yes.’ Defendants excepted. (2) The court charges you that there is no evidence that the defendants have had adverse and exclusive possession under known and visible metes and bounds for the period of twenty years, and you should answer the first issue ‘Yes.’ Defendants excepted. (3) The court charges you that the deed of 1870 from Susan Humphreys to the lawful heirs of B. E. Hilliard was the same in law as if it had been made to the children of B. F. Hilliard, and conveyed a valid title from Susan Humphreys to the children of B. F. Hilliard then living, and if you find from the evidence that Margaret Lenora Wood was born in April thereafter, she would, in law be included as one of the children then living, and would be within the description of the grantees in the deed. Defendants excepted.”</p> <p>The court refused the following prayers of the defendants: “(1) The court charges you that the deed from Susan Hum-phreys to the lavrful heirs of B. F. Hilliard is invalid and null and void for want of grantees, and the jury should answer the first issue ‘No.’ (2) That there is no evidence to go to the jury that Susan Humphreys, at the time of the execution of the deed, owned said land or was in possession thereof or had any right to convey the same, and the jury should answer the first issue‘No.’ (3) That if the jury shall find from tbe evidence that prior to the execution of the deed from Susan Humphreys to the lawful heirs of B. E. Hilliard, said B. E. Hilliard was in the open, notorious and adverse and exclusive possession of the land in controversy and continued to so hold the same up to his death, and that after his death, his widow, V. A. Hilliard, held the same under him by deed from B. E. Hilliard introduced in evidence,' and her grantees so continued to hold adverse possession thereof up to the commencement of this action, then the plaintiffs would not be entitled to recover and the jury should answer the first issue 'No.’ (4) That in passing upon the question of adverse possession, the jury should consider the fact, if they find such to be the fact, that B. E. Hilliard; from a time prior to the year 1870 and up to his death, was in receipt of the rents and profits of said land, paid taxes thereon, lived on the same for a large part of the time, conveyed a large portion of the tract by deed to his wife, and other portions thereof by deed to Darr and Leonard, witnesses for defendants, and that Jane Campbell and Lenora Wood, plaintiffs’ ancestors, never made any claim to said land, if the jury find they made no claim thereto, and if upon the whole evidence the jury shall find that defendants and those under they claim have held continuous, adverse exclusive possession thereof for the years succeeding the year 1870, then the jury shall answer the first issue ‘No.’ (5) The fact that Jane Campbell and Lenora Wood, ancestors of the plaintiffs, lived with their father a part of the time on the land in controversy as members of the family, as children live with their parents, would not put them in possession of the land under their own right, nor interrupt their' father’s adverse possession, if the jury shall find his possession was adverse, until they made some claim to own the same, and if'the jury shall find from the evidence that the children so lived with their father as members of his household, and not under any claim or right of their own, and if the jury shall further find that defendants and those under whom they claim have been in the continuous, .exclusive, adverse possession thereof from the year 1870 and prior thereto, then the plaintiffs are not entitled to recover and the jury shall answer the first issue ‘No.’ (6) That Ered Hilliard, a son of B. F. Hilliard, born in lawful wedlock, though begotten after the execution of the deed from Susan Hum-phreys to the lawful heirs of B. E. Hilliard, would share in said land, and under the same there are four children to take the same, viz.: Sallie Hilliard, Jane Campbell, Lenora Wood and Fred Hilliard, or the heirs of such of them who are dead, and in no event can plaintiffs claim more than one-half of the land and the jury should answer the issue accordingly.”</p> <p>There was a verdict and judgment for the plaintiffs and defendants, having duly excepted to the rulings of the court, appealed.</p>

AotioN by S. D. Eubanks against U. L. Alspaugh and another, heard before Judge Henry B. Bryan and a jury, at the May Term, 1905, of the Superior Court of Ibedell County.

ActioN by W. A. Mills against Biscoe Lumber Co., heard by Judge R. B. Peebles, on July 29, 1905, on appeal from an order made by the clerk in an action pending in the Superior Court of MontgombRY County. From an order reversing the order of the clerk, the defendant appealed.

AgtioN by T. J. Jones and others against J. R. Ballou and others, heard by Judge W. B. Allen and a jury, at the April Term, 1905, of the Superior Court of Ashe County. From a judgment for the plaintiffs, the defendants appealed.

ActioN by David Biles against Seaboard Air Line Railway to recover damages for an injury caused by alleged negligence of the defendant, heard by Judge George W. Ward and a jury, at the June Term, 1905, of the Superior Court of ANSON County. The three ordinary issues in actions of this character were framed for submission to the jury: (1) As to the negligence of defendant; (2) As to contributory negligence on the part of plaintiff; (3) On the question of damages.

AotioN by B. J. Sheppard against Jerry Newton to recover $81 alleged to be due for the rent of a house, tried on appeal from a justice of the peace, by Judge Henry E. Bryan and a jury, at the September Term, 1905, of the Superior Court of Foesyth County. The defendant denied any and all liability on the issue as to indebtedness. Both sides offered testimony as follows: The plaintiff testified: “I claim $81 and interest from the defendant as house rent.

<p>INDICTMENT against W. J. Arcbbell, beard by Judge Geo. W. Ward and a jury, at tbe May Term, 1905, of tbe Superior Court of Beaufort County, for an assault upon Jessie Arcb-bell, bis wife, with a deadly weapon. From tbe judgment and sentence of tbe court, tbe defendant appealed.</p>

INDICTMENT for murder against W. R. Murray, beard by Judge R. B. Peebles and a jury, at tbe January Criminal Term, 1905, of tbe Superior Court of Dueham County. Erom a verdict and sentence for manslaughter, tbe prisoner appealed.

<p>INDICTMENT against Jordan Davis for eavesdropping, beard by Judge J. L. Webb and a jury, at the April Term, 1905, of the Superior Court of Pitt County. The defendant was indicted under the following bill: “The jurors for the State upon their oaths present that Jordan Davis, late of the County- of Pitt and State of North Carolina, on the 15th day of April, 1905, at and in said county and State, being a person of evil mind and disposition, wilfully and unlawfully did approach the dwelling house of one L. H. Smith, then and there in the actual possession of one Eva Smith, his wife, in the night time, peeping in the window, turning the blinds and eavesdropping the conversation and looking into the rooms, to the great terror and disturbance of the family, to the annoyance and inconvenience of the inhabitants of said house, to the evil example of all others in like cases offending, contrary to the form of the statute in such cases .made and provided and against the peace and dignity of the State.” On motion of the defendant, there was judgment quashing the indictment. The State excepted and appealed.</p>

<p>Homicide — Premeditation and Deliberation — Cooling Time —Questions for Jury — Evidence.</p> <p>1. Where the design to kill is formed with premeditation and deliberation, it is not necessary for it to exist any definite length of time before the killing actually takes place.</p> <p>2. Where a prisoner who has killed a person displays thought, contrivance and design in the manner of securing and handling his weapon, such exercise of contrivance and design denotes deliberation — the exercise of judgment and reason rather than violent and ungovernable passion.</p> <p>3. The existence of premeditation and deliberation is a fact to be found by the jury when there is any evidence to warrant the finding.</p> <p>4. Where, without any provocation in law or in fact, the prisoner who is carrying a concealed and loaded weapon on an excursion train, takes it from his left pocket, transfers it behind his back to his right hand, raises it and points it at the deceased, warning him to “look out” and then fires the fatal shot, and leaves the car singing a flippant song, held, that this is sufficient evidence of premeditation and deliberation.</p> <p>5. If the prisoner slew on a principle of revenge for a fancied wrong, which was very trivial in its nature, having fully made up his mind to kill to avenge it, he is guilty of the capital felony.</p>

<p>INDICTMENT against Eliza Telfair for resisting an officer, beard by Judge T. J. Shaw and a jury, at the October Term, 1904, of the Superior Court of Eeanklin County.</p>

INDICTMENT for embezzlement against T. W. Dewey, beard by Judge E. B. Jones and a jury, at the July Term, 1905, of the Superior Court of Graven County. Erom a conviction and the sentence of the court, the defendant appealed.

<p>INDICTMENT against J. H. Lucas, beard by Judge O. N. Allen and a jury, at tbe February Term, 1905, of Superior Court of Sampson County.</p> <p>Defendant was indicted for assault witb serious damage and pleaded former conviction and not guilty. Tbe evi-deuce upon .the former plea was that a warrant was issued by a justice of the peace charging defendant with an assault and battery on D. C. Bullard, resulting in serious injury. At the trial, the justice found that there was probable cause and required defendant to give bond for his appearance at the next term of the Superior Court. The bond was duly executed and accepted by the justice and the defendant discharged, all witnesses having been recognized for their appearance at court. No entry of these proceedings having been made on his docket, the justice, on the next day after the trial, concluded that he had made a mistake, reversed his decision and rendered judgment against defendant for a fine of $1 and costs. No one but the justice was present when this was done. Defendant, being notified of the judgment, appeared and paid the fine and costs, and the justice surrendered to him the appearance bond he had given. No papers were returned to the Superior Court as required by the statute. The. witnesses appeared at court as they were recognized to do, and this bill of indictment was sent to the grand jury and returned “a true bill.” The assault with serious damage was sufficiently charged in the indictment. Upon the foregoing facts the court adjudged that the plea had not been sustained as the judgment of the justice was a nullity. The case was then tried upon the plea of not guilty and the defendant was convicted of a simple assault. Defendant’s counsel moved 'for his discharge upon the ground ' that the court erred in holding that there had been no former conviction.' Motion denied. Judgment upon the verdict. Defendant excepted and appealed.</p>

<p>INdictmeNt under chapter 824 of the Acts. of 1905, against A. R. Sutton, heard by Judge W. B. Councill and a jury, at the August Term, 1905, of the Superior Court of Lenoir County. Erom a judgment of guilty upon a special verdict, the defendant appealed.</p>

This is a petition in tbe action of State v. W. S. ■Maultsby, by one John Evylin, for one-balf of a fine imposed upon tbe defendant Maultsby upon bis conviction for retailing spirituous liquors in violation of tbe Cumberland County prohibition law, beard by Judge G. S. Ferguson, at tbe March Term, 1905, of tbe Superior Court of CUMBERLAND County. Erom a refusal of tbe petition, tbe informant, Evylin, appealed.

IndictmeNt for selling drinks containing alcoból against J. D. Parker, beard by Judge Geo. W. Ward and a jury, at the March Criminal Term, 1905, of the Superior Court of Union County. From the judgment rendered, the defendant appealed.

INDICTMENT for manslaughter against W. P. Horton, heard by Judge W. B. Councill and a jury, at April Term, 1905, of the Superior Court of FeakeliN County. The jury rendered a special verdict, and such verdict and proceedings thereon are as follows: “That in the month of November, 1904, to-wit: on the-day thereof, the defendant, AY.

INDICTMENT against William McIntyre, beard by Judge Fred Moore and a jury, at the August Term, 1905, of the Superior Court of CumberlaNd County. There was a verdict of guilty, and from the judgment thereon, the defendant appealed.

INDICTMENT for murder against Jas. K. Horner, beard by Judge Geo. W. Ward and a jury, at the August Term, 1905, of the Superior Court of Orange County. From a verdict of murder in the second degree and the sentence thereon, the prisoner appealed.

INdxotmeNt for forcible trespass against Jesse Jones and others, beard by Judge W. B. Qouncill and a jury, at the July Term, 1905, of the Superior Court of Gbanville County. Upon a special verdict, setting out the facts, His Honor adjudged the defendants not guilty and the State appealed.

INDICTMENT against Monroe Johnston for retailing spirituous liquors without license, heard by Judge C. M. Códice and a jury, at August Term, 1905, of the Superior Court of MecKXenbueg County. Upon the special verdict set out in the record, His Honor held that the defendant was not guilty. The solicitor for the State prosecutes this appeal.

INDICTMENT against Luther Holloman for an unlawful use of the public roads, under sections II and 23 of chapter 259, Public Laws of 1905, relating to the highways of Hert-ford County, heard by Judge R. B. Beetles and a jury, at the Fall Term, 1905, of the Superior Court of Hertford County. From a judgment of not-guilty upon a special verdict, the solicitor for the State appealed.