Volume 142 — North Carolina Reports

ActioN by A. Sawyer-against Norfolk and Southern Railroad, beard by Judge Walter U. Neal and a jury, at the March Term, 19.06, of the Superior Court of Camden. The pleadings show the contentions of the parties. Plaintiff testified in his own behalf, as follows: “I reside in this county, near Sawyer’s Creek. Lived in this county all my life and am forty-two years of age.

ActioN by Matilda Brewster against the corporation of Elizabeth City, for damages for personal injury, heard by Judge T. J. Shaw and a jury, at November Term, 1905, of the Superior Court of PasquotaNK. The following issue, with others, was submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: No. Erom a judgment for the defendant, the plaintiff appealed.

AotioN by L. F. Thompson against David Silverthorne, heard by Judge T. J. Shaw and a jury, at the October Term, 1905, -of the Superior Court oí-Beaueoet, upon appeal from a justice of the peace. From a judgment of nonsuit, the plaintiff appealed.

<p>ActioN by Mary E. Lanier against Tbe Eastern Life Insurance Company of America, beard by Judge Walter TI. Neal and a jury, at the April Term, 1906, of the Superior Court of Beaufort.</p> <p>This was an action to recover on a policy of insurance issued by defendant company (now called the Conservative Mutual Life Insurance Company) upon the life of John A.-Lanier, for the benefit of and payable to Mary E. Lanier, his wife. The Court submitted the following issue: “Is defendant indebted to plaintiff, Mary E. Lanier, now Daniels; and if so, in what amount? Answer: Yes; nine hundred and eighty-two dollars and eighty-four cents ($982.84), and interest from 23 September, 1904.”</p> <p>Erom a judgment for the plaintiff, the defendant appealed.</p>

Habeas coepus proceeding for tbe custody of a child, by A. K. Newsome, petitioner, against Q. T. Bunch and his wife, heard by Judge G. W. Ward on 3 January, 1906, at Elizabeth City, N. 0. From a judgment ordering the child to be delivered to the petitioner, the respondents appealed.

AotioN by W. E. Smith, trustee, against Atlantic Coast Line Railroad Company, heard by Judge B. F. Long and a jury, at the November Term, 1905, of the Superior Court of Halifax. Erom a judgment for the plaintiff, the defendant appealed.

ActioN by India B. Gerock and M. 0. Gerock, her husband, against Western Union Telegraph Company, heard by Judge T. J. Shaw and a jury, at the. May Term, 1906, of the Superior Court of Bebtie. Erom a judgment of nonsuit, tbe plaintiff appealed.

ActioN by Jolin T. Smith against Cashie and Chowan Eailroad and Lumber Company, beard by Judge T. J. Shaw and a jury, at the May Term, 1906, of the Superior Court of BbRtib, upon appeal from a justice of the peace. The plaintiff sued for $150. lie alleged that on 5 February, 1904, the defendant employed him for four months at $75 per month to inspect and buy lumber, and his service began on that day.

ActioN by J. IT. Liles against Eosburg Lumber Company, beard by Judge James L. Webb and a jury, at the November Term, 1904, of the Superior Court of Halifax. This.is ah action for the recovery of damages for personal injuries sustained by plaintiff while in the defendant’s employment.

ActioN by J. B. Banks and others against Blades Lumber Company, beard by Judge B. F. Long and a jury, at the Spring Term, 1906, of the Superior Court of Jones. The deed under which the defendant claims conveys all “the pine lumber of every description at'and above the size of twelve inches in diameter at the tase when cut, now standing or growing, or which may be during the ensuing term of 15 years, lying, standing, or growing” on the tract described.

ActioN by Joseph Root and wife against Seaboard Air Line Railway, beard by Judge T. J.'Sbaw and a jury, at the March, Term, 1906, of the Superior Court of Halifax. Under the charge of the Court the jury rendered the- following verdict upon the issues submitted: 1. Was the plaintiff Maria Root injured by the negligence of the defendant, as alleged in the complaint? Tes. 2. If so, was the negligence wanton and ’wilful, as alleged in the complaint? Yes. 3.

<p>Insurance — Bights of Delinquent Members — Reinstatement.</p> <p>1. Where the plaintiff had forfeited his policy of life insurance in defendant’s company by non-payment of dues, and the policy provided that “Delinquent members may be reinstated if approved by the medical director and president, by giving reasonable assurances that they were in good health,” and the plaintiff’s application for reinstatement was accompanied by a certificate of his continued good health, but the officers declined to approve his application, giving-reasons therefor: Held, the plaintiff cannot maintain this action for damages for the cancellation of his policy and the refusal to reinstate him, in the absence of any showing that the action of the officers was fraudulent or arbitrary.</p> <p>2. A provision in a policy of life insurance that “Delinquent members may be reinstated if approved by the medical director and president, by giving reasonable assurances that they are in continued good, health,” is valid, and the approval required is not a mere ministerial act, but involves the exercise of judgment and discretion.</p>

ActioN by L D. Evans against S. B. Freeman, beard by Judge T. J. 8haw- and ,a jury, at tbe May Term, 1906, of tbe Superior Court of Bertie. Plaintiff sued upon a bond, dated 6 June, 1899, by which tbe defendant promised to pay to David A. Askew on 15 November, 1900, tbe sum of fifty dollars, being tbe purchase-money for tbe right to sell an automatic stock-feeder in Hertford County.

ActioN by Jack Vassor against Atlantic Coast Line Railroad Company, beard by Judge T. J. Shdw and a jury, at tbe Spring Term, 1906, of tbe Superior Court of Noethampton. Action for personal injury sustained by plaintiff while on defendant’s freight train.

ActioN by D. Ii. Williamson against J. Ii. Bryan to recover possession of land, beard by Judge E. B. J ones and a jury, at tbe November Term, 1905, of tbe Superior Court of Pitt. From tbe judgment rendered, tbe defendant appealed.

<p>Partition — Talue—Consent Decree — Endorser—• Surety — Subrogation.</p> <p>1. Where a decree of confirmation in a partition proceeding of land recited that certain personalty of G was sold with the land with the understanding that if it became necessary for the receiver of G to sell said personalty to pay the debts of G, that the purchaser should be credited with the value of said personalty, the purchaser is entitled to be credited with the actual cash value of said personalty at the date when it was sold by the receiver, and neither the price it brought when sold for cash by the receiver for $350 nor the price it brought when resold for $10,200 by the Coitrt and paid for in the greatly depreciated paper of G, is the criterion of its value.</p> <p>2. Where, in a partition proceeding for land, it appears that a recital as to certain personalty was inserted in the decree of confirmation “by consent of all parties,” and one of the tenants in common has taken benefit under the decree by receiving part of the purchase-money, and is now moving in the cause to collect the remainder, she is bound by the recital in the decree.</p> <p>3. An endorser or surety who pays the indebtedness is subrogated to the rights of the creditor as against the property of the debtor.'</p>

PROCEEDING- for partition by H. D. Craddock against Priscilla Barnes, beard by Judge T. J. Bhaw and a jury, at the Pali Term, 1905, of the Superior Court of Washington, upon issues transferred from the Clerk.

Agticot by Woodard & Woodard against Tri-State Milling Company, beard by Judge E. B. Jones at tbe April Term, 1906, of tbe Superior Court of Edgecombe, upon appeal from a justice of tbe peace. Tbe following are tbe findings of tbe Superior Court: 1.

ActioN by Charles Duffy, Jr., against the Fidelity Mutual Life Insurance Company, beard by Judge E. B. Jones and a jury, at the October Term, 1905, of the Superior Court of CRAVEN. This action is prosecuted by plaintiff for the alleged wrongful cancellation of a policy of insurance by defendant, plaintiff claiming as damages the premiums paid and interest thereon.

<p>Fraud — Evidence—Purchaser for Value — Registration Act — Appeal and Error.</p> <p>1. In an action against two defendants to set aside a deed of trust for fraud, wliere a conversation with one of the defendants, tending to show fraud on the part of both was introduced without objection, and there was no motion to strike it out, nor request that the same be confined in its effect to the issue as to fraud on the part of the declarant, an objection to the validity of the trial on this ground is not open to the other defendant.</p> <p>2. In an action to set aside a deed of trust for fraud, where there was evidence tending to show that the deed of trust was not for the purpose of securing a bona fide debt, but that the whole transaction was a colorable arrangement to secure a feigned debt with the design and purpose to deprive the plaintiff of his security, a motion of nonsuit was properly denied.</p> <p>3. Where the jury found that the defendant, whose deed of trust was registered prior to the plaintiff’s deed older in date, was not a purchaser for value, but a volunteer, it is not required to defeat the defendant’s claim that there should have been any actual fraud on his part.</p> <p>4. Our registration act, Revisal, sec. 980, for lack of timely registration only postpones or subordinates a deed older in date to creditors and purchasers for value. As against volunteers or donees, the older deed, though not registered, will, as a rule, prevail.</p>

<p>Consent Judgment — Mortgagor and Mortgagee — Conditional Sale — Statute of Limitations — Petition to Rehear — Assignment of Errors.</p> <p>1. The language of the consent decree that a final judgment rendered in 1888 by default for land is “so far modified as to declare that the defendant has an equity to -redeem the land,” coupled with the admitted fact of defendant’s prior possession, is strong evidence that the relation of mortgagor and mortgagee existed prior to 1888, and that the decree itself creates by its very terms this relation, and that it does not constitute a conditional sale.</p> <p>2. Where the mortgagor and those claiming under him have been in continuous possession since the consent decree in 1889, the plaintiff must show some payment or other fact that will bar the running of the statute of limitations.</p> <p>3. It is uimecessaj.y to consider a broadside assignment of error in a petition to rehear, “for that, granting the correctness of every legal proposition laid down by the Court, and that its findings and inferences of fact were supported by the record, yet the conclusion reached by the Court in its opinion is erroneous.”</p>

Special PROCEEDING- by Della Griffin and others, ex-parte, pending in the Superior Court of Nash, and heard on appeal from the Clerk by Judge E. B-. J ones by consent, at chambers, at Wilson, N. C., on 26 February, 1906. From the judgment rendered the petitioner, Henrietta Eobbins, appealed.

ActioN by Tbómas HufBn against Atlantic and North Carolina Eailroad Company, heard by Judge B. F. Long and a jury, at the January Term, 1906, of the Superior Court of Carteret. This action is prosecuted by plaintiff for the purpose of recovering damages for personal injuries sustained by him while a passenger upon defendant’s train.

AotioN by Pattie D. B. Arrington against J. P. and B. L. Arrington, beard by Judge Q. W. Ward at tbe May Term, 1906, of tbe Superior Court of Vance upon motion by plaintiff to reinstate tbe cause upon tbe civil issue docket. Erom an order denying tbe motion, tbe plaintiff appealed. Tbe plaintiff filed a manuscript brief.

ActioN by B. W. Ives against Atlantic and North, Carolina Eailroad Company, heard by Judge B. F. Long at the May Term, 1906, of the Superior Court of Cbaven.

<p>Void Judgments — Purchaser at Judicial Bale — Recitals in Decree — Persons Not Parties or Privies — Doctrine of Representation — Laches — Ejectment — Betterments —■ Rents, How Applied.</p> <p>1. A judgment, rendered by a court against a citizen, affecting Ms vested rights in an action or proceeding to 'which he is not a party, is absolutely void and may be treated as a nullity whenever it is brought to the attention of the Court.</p> <p>2. All that a purchaser at a judicial sale is required to know is that the Court had jurisdiction of the subject-matter and the person.</p> <p>3. Where in a proceeding to sell land to' make assets, the owners of the land, subject to dower, were not named in the petition or summons, a recital in the decree that “the defendants were duly served” had no possible reference to the owners, nor can they in any way be affected by such proceeding.</p> <p>4. Persons who are not parties or privies, and do not, upon the record, appear to be affected, will not be heard upon a motion to vacate a judgment.</p> <p>5. The doctrine of appearance by representation has never been applied to the «divesting of a vested remainder, or in any ease where those who would be entitled in remainder are in esse and may be brought before the Court in propria persona.</p> <p>6. If a judgment is void, tlie parties are not called upon to ask favors of the Court. They declare upon their leg'al title, and no time, other than that prescribed by the statute of limitations, can bar them. <</p> <p>7. In an action of ejectment where the defendants purchased the land at a sale by the administrator as commissioner in a proceeding to make assets, to which the plaintiffs, who were the owners of the land, were not parties, the plaintiffs are entitled to recover the land, subject to the right of the defendants to have repaid the amount which they expended, for which the land was liable.</p> <p>8. The judgment, directing that the annual instalments of rent be first applied to the payment of the permanent improvements and then to the interest on the debt and the taxes paid by the defendants and interest, and then in reduction of the principal, and that the balance due be declared to be a lien upon the land, was correct.</p>

<p>Agreement Not to Institute Bastardy Proceedings — Consideration.</p> <p>1. An action for damages for breach of defendant’s promise to support plaintiff if she would not institute bastardy proceedings against him is not a bastardy proceeding; and a demurrer on that ground and that a justice of the peace had exclusive original jurisdiction, was properly overruled.</p> <p>2. Bastardy proceedings axe civil, not criminal, in their nature, and an agreement not to resort to, or to discontinue such proceeding is a good consideration for a pecuniary settlement or compromise.</p> <p>3. A contract, in consideration of past cohabitation, to support the mother and children is in the nature of reparation, and is neither void nor immoral, even though the illegal cohabitation continues, if there is no stipulation for future cohabitation.</p>

ActioN by W. P. Anderson and wife against R. S. Wilkins, beard by Judge B. F. Long, at the September Term, 1906, of the Superior Court of Wilson. The following are the facts found by the Judge: The plaintiffs contracted to sell to the defendant a lot in Wilson for $1,000, and tendered a deed for it, but the defendant refused to pay the purchase-money, alleging that the title is defective.

ActioN by J. L. Sawyer against Roanoke Railroad and Lumber Company, beard by Judge Walter II. Neal and a jury, at tbe February Term, 1906, of the Superior Court of Beaufort. From a judgment for the plaintiff, the defendant appealed.

AotxoN by II. S. Hancock against Western Union Telegraph Company, to recover damages for negligent delay in the delivery of a telegram, heard by Judge B. F. Long and a jury,,at May Term, 1906, of the Superior Court of Craven. Erom a judgment for the plaintiff, the defendant appealed.

ActioN for tbe foreclosure of a mortgage by R. D. Bennett, executor of E. J. Bennett, against W. R. Best and wife, heard by Judge James L. Webb ,and a jury, at the February Term, 1906, of the Superior Court o-f DupliN. Defendants set up as a defense usury in the note secured by the mortgage. Issues were submitted to the jury and answered as follows: “1.

ActioN 'by A. E. Becton against O. E. Dunn, beard by Judge TF. R. Allen at tbe May Term, 1906, of tbe Superior Court of LeNOie. Tbis was a motion at May Term, 1906, to set aside a judgment entered in favor of tbe plaintiff and against tbe defendant at November Term, 1905. Tbe motion was denied, and tbe defendant excepted and appealed.

AotioN by Peters Grocery Company against Collins Bag Company, beard by Judge George W. Ward and a jury, at tbe June (Special) Term, 1906, of tbe Superior Court of Edgkbcombe. Tbe suit was commenced before a justice of tbe peace, first by a summons dated 31 December, 1904, returnable 3 January, 1905, on wbicb there was no return, and tben by publication dated 16 January, 1905,.and returnable the 16tb day of the next month.

ActioN by Bank of Eocky Mount against W. J. Eloyd, Murchison National Bank, and others, heard hy Judge E. B. Jones and a jury, at the April Term, 1906, of the Superior Court of Edgecombe. From a judgment against the Murchison National Bank, it appealed.

ActioN by Ned Hudson, administrator of J ames Hudson, against Atlantic Coast Line Railroad Company, beard by Judge O. W. Ward and a jury, at the June Special Term, 1906, of the Superior Court of Edgecombe. This was an action to recover damages for alleged negligent killing of the plaintiff’s’ intestate.

<p>Railroads — Negligence•—Lawful Act — Rule of Prudent Man.</p> <p>1. Where, in an action to recover damages for the alleged negligent killing of plaintiff’s intestate, the intestate was sitting on a box on the platform of a passenger car and the conductor as he came out on the platform moved like he was going to step around intestate, and just at the time intestate got up from the box the conductor signaled the engineer ahead to put the flat-car on a sidetrack, and about the same time intestate went to step across to the flat-car, the car suddenly pulled loose and intestate fell between the cars and was killed, a judgment of nonsuit was proper, there being no evidence that intestate was called upon, in the discharge of any duty, to go on the flat-ear or that the conductor could have foreseen that he would do so — it being conceded that the act of directing the flat-car to be cut loose was proper to be done and that there was no negligence in the means employed.</p> <p>2. Where an act causing' injury is in itself lawful, liability depends not upon the particular- consequences or result that may flow from it, but upon the ability of a prudent man, in the exercise of ordinary care, to foresee that injury or damage will naturally or probably be the result of his act.</p>

ActioN by J. W. Peacock against Ida Barnes and others, heard by Judge E. B. Jones and a jury, at the’ February Term, 1906, of the Superior Court of Wilson.

ActioN by Green Shackleford and wife against L. V. Morrill, heard by Judge, B. F. Long at the May Term, 1906, of the Superior Court of GrbeNE upon an agreed state of facts, the substance of which appears in the opinion of the Court. Erom a judgment for the defendant the plaintiffs appealed.

ActioN by G. L. Edgerton and another against Charlie Games, heard by Judge W. B. Council at the April Term, 1906, of the Superior Court of WaynK, on a motion by the defendant to remove the cause to Johnston Co-unty for trial. Erom the order of removal the plaintiffs appealed.

ActioN by E. Q. Brown and wife against E. B. Souther-land and wife, beard by Judge James L. Webb and a jury, at the August Term, 1906, of the Superior Court of Wayne.

<p>Mandamus — Prohibition—Petition for Election.</p> <p>The provisions of ch. 233, Acts 1903, which require the election petitioned for. to he held in the same year in which the petition is filed and prohibit the holding of the election within ninety days of any city, county, or general election, effectually bar the holding' of the election petitioned for in this case, as the writ of mandamus is never issued to compel an unlawful or prohibited act, and the fact that the petitioners were compelled to resort to legal proceedings to compel the defendants to order the election is immaterial.</p>

PROCEEDING- for dower, by Annie Hicks against J. E. Hicks and others, beard by Judge Gr. W. Ward and a jury, at the February Term, 1906, of the Superior Court of Wake, upon an issue transferred from the Clerk.

<p>Executors and Administrators — Account and Settlement— Evidence — Burden of Proof — Pleadings—Practice.</p> <p>1. An action against an administrator for an account and settlement should not be dismissed because not brought “on relation of the State” when it had been pending for years.</p> <p>2. In an action by the heirs and distributees against an administrator cl. h. n. for air account and settlement, it is competent for them to show any indebtedness due the estate, whether by the former administrator or by other debtors.</p> <p>3. In an action against an administrator for an account and settlement, when any indebtedness due the estate is shown, the burden is upon the administrator to show that he used due diligence in collecting the same, but was unable to collect, or, having collected, has accounted for the same. It is not sufficient simply to show that the administrator has accounted for the sums he actually collected.</p> <p>4. In an action for an account and settlement, it is not necessary to specifically set out the debts which the administrator had failed to collect, but it is sufficient to aver a breach of duty in failing to file final account and to fully account and settle.</p>

<p>Railroads — Fires—Pleadings—Evidence.</p> <p>1. Where the plaintiff alleges that the spark-arrester was defective and the right-of-way foul, and states generally that the fire was caused by a spark emitted from the engine, which ignited the combustible material on the right-of-way, and thence spread to his standing timber, the plaintiff is not restricted to proof only of a defect in the spark-arrester and the bad condition of the right-of-way, and evidence as to a defect in the fire-box was not irrelevant and prejudicial.</p> <p>2. In- an action for damages to property alleged to have been burned by the emission of sparks from defendant’s engine, it is not material to inquire how a spark happened to fall from the engine, whether from, the smoke-stack or the fu-e-box, so that it lighted on the right-of-way, which was in bad condition, and caused the fire.</p> <p>3. In an action for damages to plaintiffs timber alleged tt> have been burned by the emission of sparks from defendant’s engine, testimony of a witness that he had seen the same engine which caused the fire when plaintiffs timber was burned on April 4th, as it passed and repassed, and that sparks were flowing from the smokestack every night between 15 February and 15 April, and that it set the right-of-way on fire where the timber stood, is competent.</p>

<p>Carriers of Passengers — Degree of Care Required — Street Railways — N egligence — N onsuit — Practice.</p> <p>1. An instruction that “Carriers of passengers are insurers as to their passengers, except as to the act of God or of the public enemy. They are held to exercise the greatest practicable care, the highest degree of prudence and the utmost human skill and foresight which has been demonstrated by experience to be practicable. * * * They are against all perils bound to do their utmost to protect and prevent injury to their passengers,” is erroneous. Dictum in Daniel v. Railroad, 117 N. C., 602, disapproved.</p> <p>2. The duty a carrier owes a passenger is that, as far as human care and foresight could go, he must provide for his safe conveyance, but the law does not require the carrier to exercise every device that the ingenuity of man can conceive.</p> <p>3. In an action for personal injuries against a street railway, where the plaintiff testified that he was sitting near the rear end of the car, about 25 feet long, and that in order to- get the money out of his pocket to pay his fare, he got up out of his seat and put one foot on the running-board, on the side of the car, and one on the floor, and just as'he paid his fare an ice-wagon came up and struck him; that he did not see the wagon before the collision and that at the time of the collision the car was running at a pretty good speed and that the rear end of the wagon struck him, and that the wagon at the time was going in an opposite direction from that in which the ear was moving: Held, that the motion to nonsuit should have been granted.</p> <p>4. Wjiere a motion to1 nonsuit is made and-the requirements of the statute are followed and such motion denied below, and sustained in this Court, upon the coming down of the judgment and opinion it is the duty of the Superior Court to dismiss the action.</p> <p>Clark, C. J., and Hoke, J., dissenting.</p>

ActioN by Seaboard Air Line Railway against Percy J. Olive and others, pending in the Superior Court of Wake and beard by Judge J ames L. W ebb at Lillington 3 September, 1906, upon plaintiff’s motion for an injunction. From an order denying the injunction, the plaintiff appealed.

ActioN by Louisa B. Smith against Susan E. Moore and others, heard by Judge ~W. R Allen and a jury, at the April Term, 1906, of the Superior Court of New Hanover..

ActioN by Henry Thomason and wife against the Seaboard Air Line Railway Company, heard by Judge B„ B. Jones and a jury, at the February Term, 1906, of the Superior Court of VaNCB. This action is prosecuted for the purpose of recovering damage alleged to have been sustained by plaintiffs by reason of a nuisance maintained by defendant.

Agticot by Henry Thomason and wife against the Seaboard Air Line Railway Company, heard by Judge E. B. Jones and' a jury, at the February Term, 1906, of the Superior Court of VaNCe. Plaintiffs alleged that they were and had been for many years the owners of a lot upon which was situate a dwelling occupied by them as a residence in the town of Henderson.

ActioN by C. I). Wilson against the Atlantic Coast Line Railway Company, heard by Judge James L. Webb and a jury, at the May Term, 1906, of the Superior Court of New IIanovee. This was an action to recover damages for an injury received by the plaintiff at the crossing of the defendant’s tracks oyer Nutt Street in the city of Wilmington. The Court submitted the three issues relating to negligence, contributory negligence, and damage.

AotioN by A. H. Slocumb, receiver of the Southern Sawmill and Lumber Company, against the Philadelphia Construction Company and others, heard by Judge O. H. Allen and a jury, at the May Term, 1906, of the Superior Court of KobesoN. Erom an order setting aside the verdict, the plaintiff appealed.

ActioN by J. K. Morissey, executor of D. G-. Morissey, against W. L. Hill, beard on appeal from justice of tbe peace, by Judge James L. Webb and a jury, at tbe February Term, 1906, of tbe Superior Court of DupliN, upon tbe following facts agreed upon by tbe plaintiff and defendant: 1. That H. G. Morissey died in June, 1901, and plaintiff qualified upon bis estate immediately thereafter.

AotioN by A. B. Brick against the Atlantic Coast Line Eailroad Company, heard upon appeal from a justice of the peace, by Judge W. B. Council and a jury, at the September Term, 1906, of the Superior Court of BobesoN. From the judgment rendered, the plaintiff appealed.

ActioN by N. A. MaKeithen against N. A. Blue, heard by Judge Fred. Moore at the March Term, 1906, of the Superior Court of Moore. The Sheriff of Moore County having in hand, for collection, an execution issued upon a judgment in favor of the plaintiff against the defendant, summoned appraisers to allot and set apart to said defendant his homestead and personal property exemptions.

AotioN by Benjamin Ii. Hatcber, administrator of J. W. Blount, against F. L. Faison, administrator of A. M. Faison, and others, heard by Judge T. J. Shaw at the January (Special) Term, 1906, of the Superior Court of Duplin. From an order denying the defendant’s motion to set aside a judgment rendered at February Term, 1889, the defendant appealed.

ActioN by J. W. Perry and wife against Spencer Hackney, beard by Judge Fred. Moore and a jury, at tbe May Term, 1906, of the Superior Court of Chatham. The feme plaintiff sued to recover a tract of land, and her husband was joined with her pro forma, there being no allegation in the complaint of his title or right of possession.

ActioN by S. C. Rayburn against Pennsylvania Casualty Company. This was a motion of defendant for judgment against tbe sureties to plaintiff’s prosecution bond.

ActioN by Amanda Yarborough against the Banking, Loan and Trust Company, heard by Judge O. H. Allen and a jury, at the May Term 1906, of the Superior Court of Cum-BJGRLAND. Plaintiff, a married woman, deposited during the month of December, 1904, in defendant banking company, the sum of $1,200, which was duly credited to her account and deposit ticket sent her.

AotioN by L. 0. McCoy and wife against Carolina Central Railroad, beard by Judge 0. U. Allen and a jury, at tbe Marcb Term, 1906, of tbe Superior Court of BeuNswice. Tbe plaintiff sued to recover damages alleged to have been sustained by reason of tbe defendant’s negligence in keeping a foul rigbt-of-way to wbicb it was charged tbat fire was communicated from defendant’s engine and thence to plaintiff’s land. Tbe following issues were submitted: “1.

Adi'icws of ejectment by Edwin Wall against John T. Wall, heard by Judge Fred. Moore and a jury, at the February Term, 1906, of the Superior Court of Anson. Erom a verdict and judgment for the defendant, the-plaintiff appealed.

ActioN by Charles Dewey and others on behalf of themselves and other citizens of Goldsboro against the Atlantic Coast Line Railroad and others, heard by Judge James L. We&6 at the August Term, 1906, of the Superior Court of WayNE, upon a motion to dissolve a restraining order theretofore issued.

AotioN by L. G. Cherry and others against the Cape Fear Power Company and others, heard by Judge M. H. Justice, at the August Term, 1906, of the Superior Court of Chat-ham:. This action was brought by the plaintiffs for the recovery of the real estate described in the complaint.

ActioN by East Lake Lumber Company against East Coast Cedar Company and others, pending in tbe Superior Court of Dare, and beard by Judge W. II. Neal at chambers on 14 August, 1906, on a motion for an injunction. The plaintiff brought the action to restrain the defendants from trespassing on the land described in the complaint by cutting and removing timber therefrom, some of the defendants having a large plant and being engaged extensively in the timber business.

ActioN by The Fayetteville Street Railway against The Aberdeen and Rodkfish Railroad Company for a permanent injunction to restrain defendant from interfering with a right-of-way claimed by plaintiff, pending in the Superior Court of CumbeelaND and heard by -Judge W. B. Council, at Lumberton, N. C., on 14 September, 1906, on an order to show cause why the temporary restraining order theretofore granted should not be continued. • It seems to have been agreed between the…

ActioN by B. Soloman and others against Wilmington Sewerage Company, beard by Judge James L. Webb and a jury, at May Term, 1906, of the Superior Court of New Hanover. This action was brought by the plaintiffs for the purpose of restraining the defendant from disconnecting their residences from the main sewer-pipe of the defendant company and for specific performance of the contract set out in the complaint.

ActioN by J. D. Davis against W. H. Wall, beard by Judge G. 8. Ferguson and a jury, attbe April Term, 1906, of the Superior Oonrt of Granville. From a judgment for the plaintiff, the defendant appealed.

<p>Municipal Corporations — Liability—Nuisances—Failure to Fnforce Ordinances — Remedy of Injured Gitizen.</p> <p>1. A municipal corporation is exempt from liability for any injury resulting from a failure to exercise its governmental powers, or for their improper or negligent exercise, but it is amenable to an action for injury caused by its neglect to perform its ministerial functions or by an improper or unskilful performance of them.</p> <p>2. A municipal corporation is not civilly liable for the failure to pass ordinances to preserve the public health or otherwise promote the public good, nor for any omission to enforce ordinances enacted under the legislative powers granted in its charter, or to see that they are properly observed by its citizens, or those who may be resident within the corporate limits.</p> <p>3. If a citizen is injured by the erection and maintenance of a nuisance on private premises in violation of an ordinance, he has, in addition to the right of criminal prosecution, a remedy either preventive by injunction or remedial by abatement.</p>

ActioN by Adella V. Johnson against W. Mangum Johnson, heard by Judge Fred. Moore at the May Term, 1906, of the Superior Court of Chatham. This was a motion by the plaintiff to set aside a decree invalidating her marriage to the defendant. At the same time, J. A. Dark (the appellant) made application to be allowed to intervene and oppose said motion.

ActioN by S. E. Davis against M. E. Evans, administrator of A. M. Evans, beard upon appeal from a justice of tbe peace, by Judge G. 8. Ferguson and a jury, at tbe Ajiril Term, 1906, of tbe Superior Court of Geanville. Tbe Court submitted one issue to tbe jury: “Has tbe note sued on or any part thereof been paid; and if so, wbat part ? Ans.: No.” From tbe judgment rendered, tbe defendant appealed.

• AotioN by Causey Jarrett by bis next friend against High Point Trunk and Bag Company, beard by Judge G. S. Ferguson and a jury, at.tbe June Term, 1906, of the Superior Court of'GuiLKORD. Tbe action was brought to recover damages for injuries alleged to bave been caused by tbe negligence of tbe defendant while tbe plaintiff was working in its factory at High Point, as its employee. Tbe issues, with tbe answers of tbe jury thereto, are as follows: “1.

<p>CONTROVERSY without action, by Atlantic Product Company against William Dunn, submitted to Judge B. F. Long at the May Term, 1906, of the Superior Court of Craven.</p> <p>The following are substantially the facts agreed: On 10 March, 1899, the defendant leased the premises for one year, beginning 1 April, 1899, to the plaintiff in consideration of $126, payable yearly in advance, with this further agreement: “The party of the second part, upon the expiration of the said term of one year, shall have the right at its option to continue this agreement and lease for another full term of five years, beginning 1 April, 1900, at the same yearly rental, i. e., $125, payable as aforesaid, with the right and option to have an extension and continuance hereof at the same yearly rental at the end of said first term of five years for another full term of five years.” There was also a further proviso that the plaintiff herein (party of the second part) “at any time during the continuance hereof shall have the right to purchase said leased property in fee-simple at the price of $1,550.”</p> <p>The plaintiff, exercising its option, renewed the lease 1 April, 1900, for five years On 3 April, 1905, the defendant notified the plaintiff that its lease had “expired 1 April, 1905, and with said expiration the right of renewal,” and inquired if the jslaintiff wished to make a new lease; if not, he wished it “to give up the property.” On 5 April the president of plaintiff company replied that he did not have the lease at hand, but thought it was for eleven years, and had five more years to run. He made no reference to the demand for surrender of the premises, nor any offer to pay rent. On 26 April he offered to continue the lease; but the defendant, while willing to enter into the new lease, declined to renew or extend the terms of the old lease or revive or renew the option to purchase contained in the old lease. On 24 June the agent of the plaintiff offered to pay the rent, but the defendant declined to receive it. The plaintiff continued in possession till 2 August, 1905, when the defendant turned the plaintiff's watchman out and took possession of the property, and.still holds the same. On 15 July, 1905, the plaintiff offered to pay defendant $1,550 and all accrued rent upon execution of a fee-simple deed, which offer the defendant refused to accept.</p> <p>The plaintiff did not give the defendant any notice, either verbally or in writing, that it would exercise the option to continue said lease and agreement before or on 1 April, 1905, nor afterwards, except as above stated. The Court held with defendant. The plaintiff excepted and appealed.</p>

<p>Ch’ants and Patents — Registration—Seal—Description—"A Pine" as Beginning Point — Ejectment—Evidence to Locate Land — Declarations as to Beginning Point — Adverse Possession — Harmless Error.</p> <p>1. Grants and patents issued by the sovereign are proven by the seal, and are entitled to enrollment, and thereby become public records.</p> <p>2. The fact that it does not appear of record that a scroll or imitation of the Great Seal of State was copied thereon, does not invalidate the registry of the grant. The recital in the body of the grant, as recorded, of the affixing of the seal is sufficient evidence of its regularity.</p> <p>3. A description in a grant or deed, “Beginning at a pine on the east side of Gum Swamp,” etc., is a sufficiently definite beginning to admit parol evidence to locate it.</p> <p>4. A-pine is a natural object, and when called for in a deed as a corner or beginning point is understood to be permanent evidence of where the boundary is.</p> <p>5. In an action of ejectment, an objection that the beginning corner (a pine) of the land is not proven, and therefore it cannot he located, is without merit where a witness testified that he had known the land in controversy and the beginning corner for fifty years; that he knew where the beginning corner was and had started surveyors there “a time or two’.’; that there is nothing there now to show the corner but a stub in the ground; that a person, now dead, and an old man at the time, who was disinterested and who lived about half a mile from the place, pointed out this corner; that the stub is where he pointed the corner of the boundary, and there is evidence that the surveyor started at that point and found chopped and blazed pines along the line.</p> <p>6. In an action of ejectment, an objection to- the declaration of a person made long ago, who is now dead, and who was disinterested and lived. about half a mile from the land, as to the beginning point of the land, cannot be sustained.</p> <p>7.In an action of ejectment, where the title is shown to be out of the State and there is ample evidence to go to the jury that plaintiffs and those under whom they claim acquired title by color and seven years’ actual possession, a charge to the effect that “there is evidence that plaintiffs were in possession of the land for twenty-five years or more before the commencement of this action,” is not material.</p>

ActioN by C. D. Weeks, trustee in bankruptcy of Gr. T. Flynn & Co., against FI. J. Spooner, Jr., beard by Judge James L. Webb and a jury, at the May Term, 1906, of the Superior Court of New IíaNovee. Erom a judgment sustaining a demurrer to the evidence, the plaintiff appealed.

<p>ActioN by Philip Levin and another against M. Grladstein, heard by Judge G. S. Ferguson and a jury, at the March Term, 1906, of the Superior Court of Durham.</p> <p>This was a suit upon a judgment obtained in the Superior Court of Baltimore City, Maryland. Personal service was had upon defendant while in Baltimore. Action was instituted upon, said judgment before a justice of the peace of Durham County, and from a judgment therein, defendant appealed to the Superior Court.</p> <p>At the beginning of the trial in the Superior Court counsel for defendant stated he admitted the regularity of the judgment sued upon and withdrew all pleas and defenses to said action, save and except that the judgment upon which the action was brought was procured by a fraud practised by plaintiffs upon the defendant, and that he insisted upon that plea alone. Thereupon the plaintiffs moved for judgment for that the judgment rendered by the court of Maryland was not open to attack in this action for fraud. Motion overruled, and plaintiffs excepted.</p> <p>His Iionor held that the burden of proof was upon the defendant, and he proceeded to introduce testimony. Mr. Gladstein testified that he was the defendant in the case; that he knew Philip Levin and Simon Levin, and had bought goods of them. That some time prior to his going to Baltimore he bought a bill of goods of plaintiffs, but had shipped some of them back to Baltimore because they were not up to the sample. That plaintiffs had refused to take the goods out of the depot in Baltimore. That upon his visit to Baltimore summons was served upon him in the action brought there by the plaintiffs; but after said summons was served upon him, and before the return day, he saw one of the plaintiffs and had an interview with him at the store of L. Singer & Son, during which interview plaintiffs agreed with him to withdraw said suit and return the goods to him at Durham, provided he would, upon their receipt, pay the plaintiffs a sum of money which they agreed upon, to-w/t, $133, and freight and storage not to exceed $3. That relying upon this agreement he returned to Durham and made no defense to the action. Plaintiffs never returned the goods to him at Durham. That the first time he knew of the judgment was when called upon by attorneys for plaintiffs to pay said judgment.</p> <p>There was testimony contradicting defendant. After bearing testimony from both parties, the Court submitted the following issue to the jury: “Was the alleged judgment rendered for $143, bearing date 21 April, 1904, in the Superior Court of Baltimore City, in favor of Philip Levin and Simon Levin, copartners, trading as P. Levin & Co., against M. Grladstein, obtained by the fraud of plaintiffs?” To which the jury responded “Yes.” Judgment was thereupon rendered that the plaintiffs take nothing by their action, and that the defendant go without day, etc. Plaintiffs excepted and appealed.</p>

<p>AotioN by Sylvester Davis and others against J. E. Keen, heard by Judge G. S. Ferguson and a jury, at the August Term, 1906, of the Superior Court of Davidson.</p> <p>The plaintiffs seek in this action to set aside a sale made under the power contained in a mortgage from Calvin Davis to Beelc & Eoust, at which sale the defendant Keen became the purchaser. The plaintiffs attacked the sale on several grounds, but in this appeal only one need be considered, as the appellant’s assignment of error is confined to the second' issue. The allegation of the complaint, with respect to that ground of attack, is that “the defendant Keen slandered the title of the said Calvin Davis, the mortgagor, and of the plaintiffs and his co-defendants, Matthew and George Henry Davis, by publicly announcing to the purchasers gathered for the sale that Calvin Davis and the plaintiffs and Matthew and George Henry Davis (his co-defendants) had no deed for the property being sold at the time, and that, thereby, the said tract of land, now claimed by him, and which is well worth the sum of $300, brought only the sum of $45, which was bid by the said Keen, and for which sum a deed was made to him.” The plaintiffs and the defendants Matthew and George Henry Davis are the heirs of Calvin Davis, the deceased mortgagor. The issues, with the answers thereto, are as follows: “1. In advertising and selling the lands of Calvin Davis under the mortgage described in the complaint, did the defendant Keen act as agent fox the mortgagees, R. L. Beek and T. W. S. Grimes, administrator of T. W. Eoust ? Ans.: No. 2. On the day of sale under the mortgage of Calvin Davis, described in the complaint, did the defendant Keen slander the title of plaintiffs and of their deceased ancestor to the lands in 'dispute, and thereby cause it to bring a less price than its real value? ’ Ans.: Yes. 3. What price did the land bring on the day of sale ? Ans.: $45.. 4. What was the true value of the land on the day of sale ? Ans.: $250. 5. Did the defendants Beek and Crimes, in their deed to defendant Keen, follow the description and boundaries set out in the mortgage from Calvin Davis to Beek & Eoust? Ans.: Yes. 6. At the time of the execution of the mortgage from Calvin Davis to Beek & Eoust, or at any time afterwards, was Calvin Davis the owner of the lands described in the deed from defendants Beek and Grimes to defendant Keen ? Ans.: Yes.” The defendant Keen objected to the form of the second issue upon the ground that the Court should have added thereto the words “as alleged in the complaint.” The issue, if thus amended, would be identical with the second issue tendered by the said defendant. The Court refused so to amend the issue, and the defendant Keen excepted. The evidence pertinent to the second issue was as follows: “T. E. Dorsett testified: “As I recollect, Keen came and asked me to sell the land; that it was a little sale and he wanted me to auction it. After the sale he paid me twenty-five cents and I gave him a receipt. I asked him (at the sale) to read the advertisement, as it was in his writing. Cannot say whether I had the notice of sale in my hands or not. T. W. S. Grimes, administrator of the deceased mortgagee, lives in Thomasville, and R. L. Beek, the surviving mortgagee, lives in the country. Don’t recollect that he told me that Grimes and Beek wanted me to sell the land. I sold to the highest bidder, and Keen bid it in at $45. Don’t remember number of people present.”</p> <p>T. W. S. Grimes testified: “The mortgage was given by Calvin Davis to Beek & Foust in 1901 to secure $5, and it was in the handwriting of Keen. We could not collect the debt and decided to foreclose. Asked Keen to write the advertisement, and he did so. Saw him on Saturday before the sale and asked him if it was necessary for me and Beek to go to the sale, and he replied that he did not know, that he was going on some business. I asked him to see the Sheriff and have him sell the land for us, and he said he supposed he could. I told him to bring the report of the sale when he came back and we would make the deed to the purchaser. He brought back a statement showing the amount bid and different items of expense, among which is a charge of one dollar for advertising sale and also one dollar for writing the deed, retained by himself out of the proceeds of the sale. Keen wrote the deed after the sale.”</p> <p>W. O. Burgin testified: “I spoke to Keen that morning about the sale, and he told me that there was something wrong with the title. I reckon what he said kept me away from the sale. If the title was all right I thought the lot was worth $100. If there was one acre it was worth $200. I wanted to buy it for speculation, and would have gone to the sale if Keen had not told me the title might not be good. My recollection is that he said he was going to see about the sale. I think I asked him about the title and he said the title might not cover the lot. I had looked at the lot. There has been litigation about the title ever since the sale.”</p> <p>Z. B. Morris testified: “I was at the sale. Dorsett and Keen came out on the court-house steps. Keen read a paper, and, to the best of my recollection, handed it back to the Sheriff. Some one in the crowd asked about the title, and, as I recollect, Keen said there was no deed to the land, or something to that effect. I went to the sale expecting to bid, but did not bid, as I was afraid of the title, after Keen’s statement was made.”</p> <p>M. P. Murphy testified: “I was at tbe sale and beard Keen talking in tbe Sheriff’s office before tbe sale. He talked like it might be a good while before one could get title and might be a long while. I went there to bid, but after hearing what Keen said, I did not bid. The deed to Keen from the mortgagee covers all the land. Keen said he reckoned the mortgagees would make such title as they could, and added, that Sometimes you could get a good title and sometimes you couldn’t.”</p> <p>The value of the lot was shown, and there was evidence that the heirs of Calvin Davis did not know of the sale.</p> <p>The defendant Keen testified in his own behalf, and the material part of his testimony was as follows: “Some one asked me if the parties would make a warranty deed, and I said I supposed they would make as good a deed as they could. They asked me about the title, and I told them I understood some one claimed part of the lot and that I had never seen any deed. It was the truth that I had never seen any deed, and I had heard parties claimed part of the land. At the depot on the morning of the sale Burgin asked me about the land and title, and I told him the title was uncertain to part of the land. So I understood it was, and I only-gave the rumor.” It was admitted that Calvin Davis was the owner of the land described in the pleadings at the time the mortgage was made to Beek >& Eoust. The Court charged the jury as follows: “As to the second issue, plaintiffs allege that defendant Keen, at the sale, slandered the title to the land, and thereby caused the land to bring less than its true value; that said Keen stated at the sale that Calvin Davis had no deed for the land. Defendant Keen denies that he slandered the title or made the statement alleged. Now it is for you to say from the evidence how this is. [Did defendant Keen falsely and with the purpose of .deterring others from bidding at the sale, state that Calvin Davis had no title to said land and thereby cause it to bring, at the sale, less than its true value ? If you so fine! from tbe evidence, by tbe greater weight of tbe evidence, you will answer tbe second issue ‘Yes.’ If you fail to find from tbe evidence, by its greater weight, that be did so state and thereby cause tbe land to bring less tban its value at tbe sale, then you will answer this issue ‘No.’].” Defendant Keen excepted to that part of tbe charge in brackets. Tbe Court also charged the jury as to tbe other issues, and no exception is made to bis charge as to them. Tbe defendant Keen moved for a new trial upon tbe following exceptions: “1. Tbe failure of tbe Court to submit tbe issues proposed by this defendant. 2. Tbe submission of tbe second issue in tbe form adopted by tbe Court. 3. That" tbe Court failed to state in a plain and correct manner tbe evidence in tbe case and to declare and explain tbe law arising thereon. 4. There was no evidence that tbe statements made by tbe defendant J. R. Keen at tbe sale about tbe title were false, and tbe Court therefore erred in instructing tbe jury that if Keen falsely stated that Calvin Davis bad no title to tbe said land, and thereby caused it to bring less tban its real value, they will answer tbe second issue ‘Yes.’ ” Tbe motion was overruled and tbe defendant Keen excepted. Judgment was entered upon tbe verdict and an appeal taken by tbe said defendant.</p>

AotioN by Richard Eames, Jr., against C. A. Armstrong and others, heard by Judge M. E. Justice and a jury, at the June (Special) Term, 1906, of the Superior Court of Rowan. Plaintiff alleges that on 7 May, 1903, defendants executed a deed conveying to him two tracts or parcels of land; one containing 356 acres, the description of which is set forth by metes and bounds; the other, known as the “Coggins MeetingHouse” lot, described by proper calls, containing three acres.

PbtitioN for dower by Lucy Ann Harrington,.widow of A. J. Harrington, against A. O. Harrington and others, beard on appeal from tbe Clerk of tbe Superior Court of Chatham County by Judge James L. Webb, bolding tbe courts of tbe Eighth Judicial District.

<p>ActioN by Cozart, Eagles & Carr against Assurance Company of America, beard by Judge JE. B. Jones and a jury, at tbe February Term, 1906, of tbe Superior Court of Wilson. This is a petition by tbe plaintiff for certiorari.</p>

<p>Deeds — Probate—Registration—Affidavit Under Rev., Sec. 981 — Nonsuit.</p> <p>1. Under Laws 1885, eh. 147, see. 2 (Connor Act), as amended by Laws 1905, eh. 277, Rev., 981, the probate of a deed dated in 1845 upon an affidavit that affiant claims title under said deed and that the maker of said deed and the witnesses thereto are dead, and that he cannot make proof of their handwriting, is defective, in that it does not appear by the affidavit that “affiant believes such deed to be a hona fide deed and executed by the grantor therein named,” as required by the amended statute.</p> <p>2. The registration of a deed had upon an unauthorized probate is invalid, and it cannot be introduced in evidence for the purpose of showing an essential link in the chain of title.</p> <p>3. Where the plaintiff submitted to a nonsuit, in deference to the Court’s ruling that the execution of the deed was not properly proven, in order that this ruling might be reviewed, the deed upon a proper probate being had, if properly registered, would be competent in another action.</p>

PetitioN to rehear this case by defendant, which was heard at the Spring Term, 1906, of this Court and a per curiam judgment rendered. 141 N. C., 876. This was an action to recover damages for injury received in defendant’s mill while working at a calendar-machine. The cause was tried upon the following issues: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint ? Ans.: Yes. 2.

ActiqN by Charles D. Mott against Western Union Telegraph Company, heard by Judge Gr. S. Ferguson and a jury, at the July Term, 1906, of the Superior Court of Ieedbll. On. 22 June, 1906, the following message, charges prepaid, was delivered to defendant at Winston, N. G.: “To Charles Mott, Elmwood, N. C.: W. M. Young killed in W. Va. Funeral here, three o’clock. Can you come? Delia Young.” The sender was the widow and the sendee a half-brother of the deceased.

ActioN of ejectment, by Thomas Pardon against Rachel Paschal, heard by Judge G. 8. Ferguson and a jury, at the June Term, 1906, of the Superior Court of GuilfoRD. From a judgment for the defendant, the plaintiff appealed.

<p>Municipal Corporations — Bight of Citizen to Unjoin Corporation — Necessity for Demand — Complaint—Necessary A negations — Fraud—D emurrer.</p> <p>1. A citizen, in liis owl behalf and that o-f all other tax-payers, may maintain a suit in the nature of a bill of equity to enjoin the governing body of a municipal corporation from transcending their lawfu 1 powers or violating their legal duties in any mode which will injuriously affect the tax-payers — such as making an unauthorized appropriation of the corporate funds, or an illegal or wrongful disposition of the corporate property, etc.</p> <p>2. But the citizen cannot call upon the courts to interfere with the control of corporate property or the performance of corporate contracts, until he has first applied to the corporation, or the governing body, to take action, and they have refused, and he has exhausted all the means within his reach to obtain redress within the corporation, unless there is fraud or the threatened action is ultra vires.</p> <p>3. In an action by a citizen against a municipal corporation to enjoin its governing authorities from making further payments on a contract with a paving company for paving the streets, on the ground that the paving company was not complying with the contract, where the complaint does not allege any demand upon the governing authorities and refusal by them to sue, and there is no charge of fraud nor any averment that any of the officers are acting in the matter “for their own interest,” or that their action is “destructive of the corporation,” or that they are acting “oppressively or illegally,” except in that they differ in opinion from the plaintiffs in respect to the character of the work, the demurrer was properly sustained.</p> <p>4. When a plaintiff intends to charge fraud, he must do so clearly and directly, by either setting forth facts which in law constitute fraud or by charging that conduct not fraudulent in law is rendered so in fact by a corrupt or dishonest intent.</p> <p>5. The request to the Mayor not to pay the amount then due was not a compliance with the rule which- requires a demand upon the Board of Aldermen and a refusal by them before the citizen can sue; nor was the necessity of a demand dispensed with by reason of the fact that “there was no meeting of the Board,” where it does not appear that the plaintiffs exhausted all means in their power to submit their grievances to a regular or a special meeting called for this purpose.</p> <p>6. Every demurrer directed to the incapacity of the plaintiff to sue, the misjoinder of parties or causes of action, or jurisdiction, admits the facts alleged, for the purpose of the demurrer, but does call into question the merits of the case.</p>

ActioN by M. Y. Marable against Southern Railway Company, heard by Judge G. 8. Ferguson and a jury, at the July Term, 1906, of the Superior Court of Ibedell. This is an action brought to recover damages for injuries alleged to have been caused by the negligence of the defendant. The plaintiff was. a passenger on one of defendant’s local freight trains in September, 1904.

<p>Severance — Homicide—Murder in First Degree — Premeditation.</p> <p>1. Defendants indicted in a joint bill for an offense have no legal right to a separate trial. The granting of such a motion is a matter within the sound discretion of the trial Judge, which is unreviewable.</p> <p>2. In an indictment for murder, where it appears that about sunset of the day of the homicide a serious affray occurred, in which the prisoner participated; that a warrant was issued for his arrest; that the prisoner armed himself after the affray, and that the deceased, an officer, and his posse, met the prisoner; and the deceased, with a warrant in his possession, told the prisoner that he had a warrant for his arrest and to consider himself under arrest, and that immediately, without inquiry, the prisoner shot the officer, who had presented no weapon, nor attempted to seize the prisoner: Held, that there was sufficient evidence of premeditation.</p> <p>3. Where the prisoner weighs the purpose to kill long enough to form a fixed design, and then puts it into execution, it is murder in the first degree. But where the intent to kill is formed simultaneously with the act of killing, the homicide is not murder in the first degree.</p>

<p>Trial at First Term — Gontinua/nce—Abuse of Discretion— Indictments — Motion to Quash — Witnesses not Sworn Before Grand Jury — Endorsements on Bill — Challenges— Anti-Saloon League — Qualification of Jurors — Excessive Punishment.</p> <p>1. There is no rule of law or practice that where a bill of indictment is found.at one term the trial cannot be had till the next. Whether the case should be tried at that term or go oyer to the next term is a matter necessarily in the discretion of the trial Judge and not reviewable, certainly in the absence of gross abuse.</p> <p>2. There was no abuse of discretion in refusing a continuance because the defendant was put on trial in four hours after an indictment for illegal sale of liquor was returned, where the defendant had been arrested six months before on the same charge and had paid the prosecuting witness to leave the State, and the offense was committed in the town in which the Court was held and it does not appear that any material witness was absent nor that the defendant was prejudiced, and the trial closed two days after the bill was found, and he was represented by the same counsel who represented him before the magistrate, and three other counsel.</p> <p>3. A motion to quash an indictment, on the ground that it did not appear that any of the witnesses before the grand jury were sworn, was properly refused, where there was no evidence that the witnesses were not sworn, and the only defect alleged was that the blank space after “thus” in the certificate, “witnesses whose names are marked thus .... were sworn and examined,” was not filled in with a cross-mark or check.</p> <p>4. No endorsement on a bill of indictment by the grand jury is necessary. The record that it was presented by the grand jury is sufficient in the absence of evidence to impeach it. State v. MoBroom, 127 N. C., 528, overruled.</p> <p>5. A defendant’s exception for a refusal of his challenges for cause to four jurors, when he relieved himself of them by the use of his peremptory challenges, is not open to review where he, after exhausting his peremptory challenges, did not challenge any other juror.</p> <p>6. In a-n indictment for illegal sale of liquor, challenges for cause, in that the jurors belonged to the Anti-Saloon League, were properly disallowed, where the jurors had taken no part in prosecuting or aiding in the prosecution of the defendant.</p> <p>7. An exception that the punishment is in excess of that allowable upon conviction on the first count need not be considered, where the charge makes it clear that the case was submitted to the jury upon only the last count, the others having been nol. prossed.</p>

IwdictmeNT against J. T. Oarrawan and others, heard by Judge T. J. Shaw and a jury, at the July Term, 1906, of the Superior Court of Chaven. Defendants were indicted for stealing a raft of timber, the property of the Pine Lumber Company. There was a verdict of guilty as to six^of the defendants, and from the judgment on the verdict, they appealed.

INDICTMENT for abduction against W. E. Burnett, beard by Judge G. W. Ward and a jury, at the May Term, 1906, of the Superior Court of Vance. Erom a verdict of guilty and judgment thereon, the defendant appealed.

<p>Assaults — Defense of Property — Excessive Force — Pointing Pistol.</p> <p>1. A person may lawfully use so much, force as is reasonably necessary to protect his property or to retake it when it has been wrongfully taken by another or is withheld without authority j but if he use more force than is required for the purpose, he will be guilty of an assault.</p> <p>2. The right to protect person or property by the use of such force as may be necessary is subject to the qualification that human life must not be endangered or great bodily harm threatened except, perhaps, in urgent cases. The parson whose right is assailed must first use moderate means before resorting to extreme measures.</p> <p>3. Where the defendant’s mule had been attached by the Sheriff- and delivered to the plaintiff in the civil action as his agent, and while the prosecutor was using the team in hauling under the orders of the plaintiff, the defendant suddenly appeared on the scene and pointed a pistol a.t the prosecutor without demanding possession of his property, or that he desist from using it, but merely asked him what he was doing there, the defendant was guilty of an assault at common law, if not under sec. 3622 of the Revisad.</p>

INDICTMENT against A. J. Sheppard, heard bj Judge E. B. Jones and a jury, at the April Term, 1906, of the Superior Court of Nash.

INDICTMENT against D. Wells, beard before Judge E. B. Jones at the August Term, 1906, of the Superior Court of Duplin. Defendant, having been convicted before a- justice of the peace for a wilful trespass, under Revisal, see. 3688, appealed to the Superior Court, where, at August Term, it was agreed that the Judge might find the facts and enter judgment accordingly. The Court found the facts, and thereon adjudged defendant guilty and imposed a fine of one dollar.

INdiotmbNT against E. L. Eing, heard by Judge M. H. Justice and a jury,' at the February Term, 1906, of the Superior Court of Columbus. The defendant was indicted for seduction under promise of marriage. The prosecutrix testified that she first knew the defendant in 1901, when he made love to her, and they became sweethearts; that she went with him two years. . He courted her and she promised to marry him. She did not go with any one else.

INDICTMENT against Robert Scott, beard by Judge M. II. Justice and a jury, at the duly Term, 1906, of tbe Superior Court of Union. Tbe defendant was convicted, and appealed.

<p>Appeal by Robert C. Cantwell from a judgment of Judge W. R. Allen at tbe April Term, 1906, of tbe Superior Court of New PIaNOveR.</p>

INDICTMENT for murder, against I. B. Matthews, beard by Judge G. 8. Ferguson and a jury, at the February Term, 1906, of the Superior Court of G-uileoed. From a verdict of murder in the second degree, and sentence thereon, the prisoner appealed.

INDICTMENT against Zeke Lewis, beard by Judge T. J. Shaw at tbe July Special Term, 1906, of tbe Superior Court of Union. Tbe defendant was indicted in tbe following bill: North Carolina — Union County. Superior Court, July Special Term, 1906.

INDICTMENT against S. A. Kincaid, beard by Judge M. H. Justice and a jury, at the March Term, 1906, of the Superior Court of BueKe. The defendant was convicted.of the crime of seducing one Ethel Hood under promise of marriage, and from the sentence imposed he appealed.

INDICTMENT against O. A. Trotman, beard by Judge B. F. Long and a jury, at tbe August Term, 1906, of tbe Superior Court of Eeanelin. From a judgment of not guilty, on a special verdict, tbe State appealed.

IwdictMBNt against Joseph Hodge, heard by Judge M. II. Justice and a jury, at the April T'erm, 1906, of the Superior Court of Rutherford.

<p>INDICTMENT against Lee Frisbee, heard by Judge Fred. Moore and a jury, at April Term, 1906, of the Superior Court of Buncombe.</p> <p>The defendant was charged in the indictment with unlawfully, wilfully, and maliciously assaulting Floyd Brown, on 1 May, 1903, with a deadly weapon, to-wit, a certain pistol and knife with a four-inch blade, with intent to kill and murder the said Floyd Brown and to his great damage, contrary to the form of the statute and against the peace and dignity of the State. The defendant moved to quash the indictment. Motion overruled, and he excepted. There was evidence that the assault was made more than two years before the finding of the indictment. The defendant, in apt time, requested tbe Judge to charge the jury that, if the assault was committed more than two years.before the bill was found, they should acquit. This instruction was refused, and the defendant excepted. The jury returned a special verdict to the effect that the assault occurred on 12 April, 1903, and the indictment was found 4 August, 1905, or more than two years after the offense was committed, and ashed the opinion of the Court upon the facts so found. If the indictment is not barred by the statute of limitations, they found the defendant guilty; but if it is barred, they found him not guilty. The Court adjudged the defendant guilty, and from the judgment upon the verdict, the defendant excepted and appealed.</p>

INUictmeNt for murder against John H. Hodge, heard by Judge C. S. Ferguson and a jury, at the May Term, 1906, of the Superior Court of Durham. Erom a verdict of guilty of murder in the first degree, and sentence thereon, the prisoner appealed.

INDICTMENT for murder against Frank Bohanon and others, heard by Judge B. F. Long and a jury, at the September Special Term, 1906, of the Superior Court of Guileord. The defendant, with Kiser Crutchfield and Oscar Crutch-field, was indicted for the murder of R. E. Beacham, on July 31, 1906. He and Kiser Crutchfield were convicted of murder in the first degree, and Oscar Crutchfield was acquitted. The defendant, Bohanon, alone appealed.

INDICTMENT f or criminal elopement, beard by Judge Fred. Moore and a jury, at the April Term, 1906, of the Superior Court of Buncombe. There was a verdict of guilty and judgment, and defendant excepted and appealed.

<p>Plea Denying Existence of Court — Jurisdiction—Appeals.</p> <p>1. Tile plea of tbe defendant that the Court was unlawfully called and organized because the Governor was absent from the State when he attempted to order the holding of the Court was properly overruled, as the plea is subversive of itself.</p> <p>2. The legal existence of a Court cannot be drawn in question by a plea to the jurisdiction, for such a plea presupposes that the Court was regularly called and organized, as jurisdiction means the right to hear and determine causes between litigants, which nothing but a Court can do.</p> <p>3. A plea denying the very existence of the Court before which the plea is filed is unknown to the science of pleading, for no Court can pass upon the validity of its own constitution and organization. It must always decide that it is a Court, because the moment it is admitted that it does not exist, and has never existed, as a legal entity, so to speak, it is at once settled that it never had the power to decide anything, not even the plea denying that it ever was a Court.</p> <p>4. This Court can acquire jurisdiction to correct errors only where they have been committed by a Court, constituted and organized according to law or recognized as having the essential attributes of a properly constituted tribunal, and competent to exercise jurisdiction 'of controversies between litigants.</p>