Volume 143 — North Carolina Reports

<p>1. Under Revisal, ch. 5, an applicant for license to practise law who complies with the formal prerequisites prescribed by see. 208 is entitled to be examined, and if, on his examination he satisfies the Court of his competent knowledge of the law, he is entitled to receive his license, and an investigation into his general moral character is no longer required or permitted.</p> <p>2. Revisal, ch. 5, establishing the qualifications for applicants to prac-tise law, is not unconstitutional as am unwarranted exercise of judicial power prohibited by sec. 8 of the Declaration of Rights, nor as an unlawful attempt to deprive the Court of its inherent power to direct and control the conduct of attorneys who are^its officers.</p> <p>3. The Legislature has the right to establish the qualifications to be required of one to become a practising member of the bar by virtue of the police power which is vested in that body.</p> <p>Brown and Walker, JJ., dissenting.</p>

ActioN by Mollie E. Thaxton against the Metropolitan Life Insurance Company, heard by Judge M. II. Justice and a jury, at the June (Special) Term, 1906, of the Superior Court of Rowan. This was an action to recover the amount of an insurance policy. Issues were submitted and responded to by the jury as follows : 1.

AotioN by P. S. Oarleton, administrator of J. T. Pender, against tbe Yadkin Eailroad Company and the North Carolina Eailroad Company, heard by Judge M. II. Justice at the June (Special) Term, 1906, of the Superior Court of Eowan. This action was brought for the purpose of recovering-damages by reason of the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendants.

ActioN by Warren W. Isley against the Virginia Bridge and Iron Company, heard by Judge Ci. 8. Ferguson and a jury, at the May Term, 1906, of the Superior Court of Alamance. From the judgment rendered, both parties appealed.

ActioN by Pittsburg, Johnstown, Ebensburg and Eastern Kailroad Company against Wakefield Hardware Company, beard by Judge Fred Moore and a jury, at the August Term, 1906, of the Superior Court of GuilroRd. This case was here, 135 N. O., 73, when a demurrer for misjoinder was sustained because the surety on the attachment bond had been joined as defendant. It was again here, 138 N. O., 174, when a demurrer to the complaint was overruled.

ActioN by A. Gr. Jones and others against tbe Board of Commissioners of Stokes County, pending in tbe Superior Court of StoKes, and beard by Judge Cr. W. Ward, by consent, at chambers at Winston, on 12 October, 1906, upon tbe pleadings and agreement of facts.

<p>Processioning Proceeding — Pleadings—Practice—Possession — Title—Boundary—Burden of Proof.</p> <p>1. In a processioning proceeding under Rev., secs. 325-6, to establisii a boundary-line, where the defendant denied the plaintiff's title and pleaded both the twenty years’ and seven years’ statutes as a defense, the Clerk, under Rev., sec. 717, should “transfer the cause to the civil-issue docket for trial during the term upon all issues raised by the pleadings” — in this case, both the issues of boundary and title.</p> <p>2. In a processioning proceeding, the provision in Rev., sec. 326, that occupation of land constitutes ownership for the purpose of establishing boundary, applies only where the answer does not deny the boundary, or denies only the boundary; but where the denial extends to the plaintiff’s title also, and the case is transferred to the term of Court for “trial on all the issues raised” (Rev., sec. 717), the action becomes substantially a civil action to quiet title, and it devolves upon the plaintiff to make out his title as well as his boundary, and possession ceases to be sufficient proof of ownership.</p> <p>3. In a processioning proceeding-, where the cause has been transferred to the Court at term, an instruction to the jury that “if they should find from the greater weight of evidence that the original and true • line between the plaintiff and defendant is as claimed by defendant, then you will answer this issue (as to boundary) in his favor,” was erroneous, as the burden of proof was on the plaintiff to establish the line.</p>

AgtioN by Joseph Hicks against Naomi Falls Manufacturing Company, heard by Judge G. S. Ferguson and a jury, at the June Term, 1906, of the Superior Court of Guilroed. There was verdict and judgment for the plaintiff, and the defendant excepted and appealed.

ActioN by David Biles against Seaboard Air Line Railway Company, heard by Judge Fred Moore and a jury, at the February Term, 1906, of the Superior Court of AnsoN. Tbe three ordinary issues in actions of this character were submitted. • There was verdict and judgment for plaintiff, and defendant excepted and appealed.

<p>Infants — Adverse Possession — Possession by Father — Presumption — Evidence—Exceptions and Objections — Instructions — Motion to Dismiss.</p> <p>1. In an action of ejectment, where the sister of plaintiffs, who held a deed for a tract of land, died in infancy without ever having entered on the land, and thereafter their father, who lived on a different tract, took possession of the land and held it until his¡ death, when the plaintiffs entered into possession: Held, the father will not be presumed to have entered in behalf of his children, where there was no evidence that he professed to do so, and none that they had any title, but at most only color of title, and his possession will not enure to them so as to perfect any colorable title they may have had as against a stranger.</p> <p>2. An appellant is not bound to except to an instruction when there is no evidence to warrant it, and he has already moved to dismiss the action.</p>

ActioN by James A. Hodgin by bis next friend, G-. A. Hodgin, against the Southern Railway Company, heard by Judge Fred Moore and a jury, at the August Term, 1906, of .the Superior Court of GuilKobd. This was an action to recover damages for injuries received by plaintiff from a collision with defendant’s train at a crossing. The Court submitted the issues of negligence, contributory negligence and damage.

<p>ActioN by Smith Premier Typewriter Company against Rowan Hardware Company, heard on appeal from a justice of the peace by Judge M. H. Justice at the June Special Term, 1906, of the Superior Court of RowaN.</p> <p>Plaintiff sued on a written order given by defendant to plaintiff for a typewriter at tbe price of $102.50, and dated 28 April, 1905, the trade having been negotiated through one B. W. Allen, who was at the time a traveling salesman and agent of plaintiff.</p> <p>Defendant admitted having placed this order in writing signed by defendant, and averred by way of defense that at the time the order was given, and as a part of the contract, the agent, Allen, who made the trade, agreed for plaintiff that defendant, in part payment for the machine ordered, should have a credit, as agent of plaintiff, of $40, the commission on four other machines then sold, or being sold — three of them to other parties, and this one to be included in the number on which the commission should be allowed. And defendant, by answer, claiming this reduction of $40 on the price, made a formal tender of $62.50 and interest, the price of this machine, less the alleged credit.</p> <p>On the trial in Superior Court the plaintiff offered in evidence the written order, and rested.</p> <p>For the defendant, S. A. Gregg, being duly sworn, testified, in part, as follows:</p> <p>“That on 28 April, 1905 (it being the time the original order was made for the typewriter), I was president of the Rowan Hardware Company, defendant. Mr. Allen was agent of the plaintiff; we gave him the order for the machine and the machine was shipped to us from Richmond, Va. I did not hear the original contract, as it was made by Mr. Allen and Mr. Sossaman. After the order was signed and placed in Mr. Allen’s hands, I called Mr. Allen and Mr. Sossaman over to my desk and told Mr. Allen that I did not understand the contract and wanted him to explain it to me. Mr. Allen then showed me the order and said that we were to be allowed a credit of $40 on the same for four machines he had heretofore sold or was in the course of selling, which would leave a balance of $62.50 due on the note or order.”</p> <p>Cross-examined:</p> <p>“I understood tbat we were only paying $62.50 for the machine. We did not especially need a machine at that time, but I thought if we could get this one cheap we had better take it.”</p> <p>The issue was submitted as to the amount defendant owed the plaintiff.</p> <p>The case on appeal then proceeded as follows:</p> <p>After his Honor had charged the jury, the jury retired, and, after haying been out two and one-half hours, returned and said 'they could not agree. Whereupon, his Honor asked them if there was any matter of law upon which he could instruct them.</p> <p>The jury, then, through their foreman, asked “Whether they should be governed by the oral evidence or by the written contract.” Whereupon his Honor instructed them:</p> <p>“The written contract is the contract of the parties at the time, and unless you find that Allen was the general agent for the plaintiff, and that Allen agreed, after the execution of the contract, that the defendant should have 10 per cent, on four machines sold and that $40 was to be credited on the note, then the written contract would control.”</p> <p>The plaintiff excepted to all evidence concerning the $40 credit on the note, and all the evidence as to commissions allowed the defendant on the sales made by Allen. Objection overruled. Exception by the plaintiff. The plaintiff excepts to the charge of his Honor as above set forth, upon the ground that the same is not supported by the evidence.</p>

ActioN by Singer Manufacturing Company against G. A. Summers, F. D. Fuller and tbe City National Bank of Greensboro, beard by Judge Cr. 8. Ferguson and a jury, at tbe June Term, 1906, of the Superior Court of Guilfobd. From tbe facts, as stated in tbe record, it appears than on 1J May, 1904, G. A. Summers, then acting as agent of tbe plaintiff company, deposited in tbe City National Bank of Greensboro a sum of money belonging to tbe plaintiff company amounting to $1,396.89.

<p>ActioN by Board of Commissioners against Wachovia Loan and Trust Company, heard by Judge G. W. Ward at the September Term, 1905, of the Superior Court of Eob-syti-i.</p> <p>The defendant entered into a contract with the town of Salem to purchase from the said town $100,000 par value of its bonds at the price of $101,750. The bonds were a part of a total issue of $125,000, issued pursuant to an election held on 26 June, 1906, under the provisions of the charter of the town of Salem, being chapter 40 of the Acts of 1891. On the tender of the bonds by plaintiffs, defendant refused to accept same on the ground that said bonds were not of a valid issue of bonds and did not constitute a legal obligation of the said town of Salem. Plaintiffs brought suit to enforce the contract, and the case was heard on the complaint and answer. From the judgment rendered, defendant appealed.</p>

ActioN by Jasper Miller against Atlanta and Charlotte Air Line Railway Company, beard by Judge B. B. Peebles and a jury, at the October Term, 1906, of the Superior Court of MbcKlenbubg. This action was brought to recover damages for an injury to the plaintiff’s hand, alleged to have been caused by the negligence of the defendant. There are numerous exceptions, but we.need consider only one.

AotioN by Samuel Hayes against Atlanta and Charlotte Air Line Eailway Company, heard by Judge Henry R. Bryan and a jury, at the March Term, 1906, of the Superior Court of MecKLENburg. This was an action for the recovery of damages for personal injury.

<p>Master and Servant — Defective Appliances — Negligence■—• Evidence — Res Ipsa Loquitur — Accidents—Presumptions —Contributory Negligence — Question for Jury.</p> <p>1. In an action by a servant to recover damages for injuries received from the planks on a gangway slipping, he must prove that the gangway was in a defective condition, that its defective condition was the proximate cause of his injury, and that the master knew of its defective condition, or was guilty of negligence in not discovering and repairing the same.</p> <p>2. Where the evidence shows a gangway built by a competent builder, upon a proper plan, of good material, capable of sustaining a number of people and heavy weights, in good condition, and safe for the purposes for which it was intended,, as tested by actual use, up to a few minutes before the plank fell with the plaintiff, the doctrine of res ipsa loquitur does not apply, and the plaintiff is not entitled to recover for injuries sustained.</p> <p>3. The fact of an accident carries with it no presumption of negligence on the part of the employer.</p> <p>•4. In an action for injuries caused by the falling of a bed-plate of a cloth press, weighing several thousand pounds, it was a question for the jury to determine whether the plaintiff placed himself in a place of obvious danger, such as no prudent person would occupy, in standing immediately behind and looking over the bed-plate as it stood on its edge, and directing a battering-ram which wás being propelled against it from the opposite side.</p>

<p>AgtioN by 0. IL Beard against Southern Eailway Company, heard bj Judge Q. 8. Ferguson and a jury, at the April Term, 1906, of the Superior Court of G-uilNOrd.</p> <p>This action is prosecuted for the recovery of damages sustained by«the plaintiff while in the employment of defendant, by reason of alleged negligence. The defendant denies that it was guilty of negligence and alleges that plaintiff was injured by reason of his own negligence. Eor a further defense defendant sets up a release executed by plaintiff. In reply to this new matter plaintiff avers that at the time of the execution of the release he did not possess sufficient mental capacity to make the contract and that the release was procured by fraud and undue influence. Eor the purpose of ascertaining the truth in regard to these several allegations, appropriate .issues were submitted to the jury, all of which were found in accordance. with plaintiff’s contention. The facts, as they are related to the exceptions, are set forth in the opinion. Erom a judgment upon the verdict, defendant appealed.</p>

Aotioot by Annie Harrison against Western Union Telegraph Company, beard by Judge W. B. Oouncill and a jury, at the February Term, 1906, of the Superior Court of RowaN. This case is reported in 136 N. C., 381, where the facts are stated. On the second trial the Court instructed the jury that, upon all the evidence, plaintiff was entitled to recover only twenty-five cents, the cost of the telegram. Plaintiff excepted, and appealed.

ActioN by Bettie W. Haynes, executrix of Tyler D. Haynes, against North Carolina Railroad Company, beard by -Judge Henry B. Brycm and a jury, at the April Term, 1906, of the Superior Court of MecKleNbubg. This was an action brought by the plaintiff executrix for the recovery of damages sustained by reason of the'death of her testator on account of the alleged negligence of defendant’s lessee.

AotioN by H. L. Creighton and wife against Board of Water Commissioners of Charlotte, heard by Judge Henry B. Bryan and a jury, at the June Term, 1906, of the Superior Court of MecKleNbuRG.

ActioN by T. J. Roberts against Southern Railway Company for damages for assault and battery, beard by Judge Henry R. Bryan and a jury, at tbe June Term, 1906, of the Superior Court of Mecklenburg. The evidence shows that plaintiff, an employee of the defendant, on its yard at Charlotte, was assaulted by one Bradley, the yardmaster, and plaintiff’s superior.

ActioN by Charles Holmes Machine Company against D. B. and M. H. Ohalkley, trading as Stanton Tanning Company, beard by Judge W. B. Gouncill and a jury, at tbe June Special Term, 1906, of tbe Superior Court of Wilkes.

AotioN by State on relation of W. P. Morrison against Gr. C. Teague and sureties on his official bond, heard by Judge Henry R. Brymi and a jury, at the October Term, 1906, of the Superior Court of ALEXANDER.

<p>AotioN by G. E. Ivey against Bessemer City Ootto-n Mills, beard by Judge Charles M. Coolee and a jury, at the February Term, 1906, of tbe Superior Court of Catawba.</p> <p>This action was brought to recover upon a contract for services. The plaintiff was employed by defendant as superintendent of its mill on 22 March, 1902, at $1,600 per annum and entered upon the discharge of his dutieslMay,1902. The plaintiff introduced a letter, dated 22 March, 1902, from defendant to him, which is as follows: “Tours of the 21 inst. received and noted, and you can come on as soon as you choose at the rate of sixteen hundred dollars ($1,600) per annum from now until 1 January, 1903, and at the rate of $1,800 per annum as long as it is mutually agreeable after that time, and this shall be a contract to this effect, and I hope you will be here many years. I simply want the best results, and as long as you can give these, I see no reason to change. Ours is a close corporation, and you have few to please. We will begin work on striped madras, out of 26 warps and 26 fillings, 64 and 34, and weave 32-inch goods. I mean to finish 32-inch goods, and I presume will be 33% to 34-inches rough; and you will please write Charlotte Supply Company about reeds, harness, etc., at once. They will want to begin work on the harness. I enclose you letter to C. Supply Company. I will build you a six-room house at once near the mill in a nice place. I leave Monday night and will be gone a week or ten days.”</p> <p>The defendant, over the plaintiff’s objection, introduced evidence tending to show that the plaintiff had represented bimself to be competent for tbe work be was about to undertake, and also evidence tending to show that the plaintiff acted as superintendent of the mill and took control and direction of the construction work from 1 May, 1902, until 25 October, 1902, at which time the defendant had discovered that he was incompetent and not qualified for the work for which he was employed, he having made many serious mistakes in the manner of performing the work. The defendant thereupon threatened to discharge him, but he asked to be continued in the service, as it would injure his reputation as a mill superintendent to be discharged at that time, and he could not get a place anywhere else. He then promised that if he was kept in the employment of the defendant for another month that at the end of that time he would resign, and he signed a paper dated 25 October, 1902, agreeing that the contract would expire on 1 December, 1902. The defendant then agreed to retain him upon condition that no mistakes were made thereafter. After a few days the defendant discovered that the plaintiff had made other mistakes, and that it would have to replace machinery put up under his supervision and direction. The plaintiff was notified of this, and admitted that he had made the mistakes, and asked to be allowed to resign at once. This was on 30 October, 1902. Tie did resign, and was paid his salary in full to that date.</p> <p>There was evidence on the part of the plaintiff in contradiction of that of the defendant as to plaintiff’s representation that he was a competent mill man and as to what took place 30 October, 1902. The defendant denied that he had resigned after that date. He now sues for his salary alleged to be due for the months of November and December, 1902.</p> <p>The defendant introduced the deposition of James L. Wilson to prove that the plaintiff had represented himself to be competent for the position-of superintendent of the mill. The plaintiff objected to the deposition because the defendant had served notice to take tbis deposition in Philadelphia, Pa., on a certain day and also a notice to take the deposition of another witness on the same day at Eayetteville, N. 0., though the latter deposition was not taken.</p> <p>The Court found as facts that the deposition of Wilson was opened by the Clerk and passed upon by him after due notice, and allowed to be read “subject to exceptions,” and as no exception was then made to' the service of the notices to take two depositions in widely separated places, the Court ruled that the exceptions reserved applied only to the competency or admissibility of the evidence and not to the validity of the deposition. The Court further found that no such objection as is now urged was made at the opening of the trial or before the trial commenced, nor until after the plaintiff had rested his case and the defendant had introduced the greater part of its evidence, the. plaintiff’s counsel then agreeing to waive all objections to the competency of evidence. Thereupon the Court overruled the objection and admitted the deposition. The witness testified that Ivey gave him to understand that he was a capable superintendent and understood the business he was agreeing to undertake.</p> <p>The Court submitted two issues, one as to whether the plaintiff had been wrongfully discharged and the other as to the damages, and charged the jury that as the defendant discharged the plaintiff, the burden was upon it to justify the discharge, but that the parties to the contract could at any time, by mutual consent, put an end to it; and if the jury found as a fact by the greater weight of the evidence, the burden being upon the defendant, that the plaintiff failed to perform his duty as superintendent, the defendant had the right to discharge him, and they would answer the issue “No”; or if they found that there was a disagreement between the parties in respect to the manner of performing the work, and. the plaintiff, thereupon, voluntarily resigned his position and accepted the balance due him to the time of his resignation in full settlement of the contract, they should answer the issue “No”; but if they found that the plaintiff did not fail to perform his part of the contract and did not resign, they should answer the issue “Tes.”</p> <p>The plaintiff excepted to the refusal of the Court to charge the jury, at his request, that if the defendant knew that the plaintiff was incompetent at the time he was employed, his incompeteney would not excuse the defendant from discharging him; and he also excepted because the Court, in response to the defendant’s requests one and four, charged the jury that if the plaintiff hired himself out to the defendant as being competent and having experience in the kind of business he was employed to superintend, .and it turned out that he was not competent and did not have such experience and he failed to properly perform the duties of his position or he neglected to perform his duties, the defendant had the right to discharge him, and they should answer the first issue “No.”</p> <p>There was a verdict for the defendant and judgment was entered thereon, from which the plaintiff appealed.</p>

<p>Attachment — Affidavit for Publication — Sufficiency—Property in Custodia Legis — Subsequent Attachment — Transaction'with Insane Person — Value of Stoch — Booh Entries —Evidence—Appearance, General After Special — Personal Judgment — Sale , by Commissioner — Warranty— Damages.</p> <p>1. In an action for damages for breach of a covenant of warranty, an affidavit, upon which an order of publication was based, which alleged that the cause of action arose upon a breach of warranty contained in a deed from defendant to plaintiff registered in M. County, by which said breach the defendant is indebted to the plaintiff in the sum of $13,500, sufficiently sets out the cause of action, it not appearing that there was ever any other deed between the same parties.</p> <p>2. Where an attachment had been levied by the Sheriff on certain bonds and thereafter the plaintiff caused a second attachment to be levied on them, the fact that the plaintiff had deposited them with the Clerk of the Court before the second levy was made upon them, the deposit not having been made by authority of the Court, did not place them in custodia legis, so as to protect them from the second levy, as they were constructively in the possession of the Sheriff under the prior levy.</p> <p>3. Where the Court has the custody of property, it will be retained to await the result of the action and satisfy any judgment that may be recovered, it being immaterial how the property was brought under the control of the Court, whether by attachment or some other equivalent and lawful act.</p> <p>4. In an action against an insane person for damages for breach of warranty in a deed, a witness who is not interested in the recovery is not disqualified by Rev., sec. 1631, though he may have an interest in the land.</p> <p>5. Where a witness had testified that the stock of a certain corporation was not worth moi’e than fifty cents on the dollar, the entries in the stock book as to the value of the stock, which witness did not make, were not competent to contradict him.</p> <p>6. Where the defendant entered a special appearance and moved to dismiss for defective service, which motion was denied and he excepted, and he thereafter entered a general appearance, the Court was authorized to enter a personal judgment against him.</p> <p>7. In an action for damages for breach of warranty in a deed, in which certain bonds were attached, the defendant cannot complain of a judgment directing that the bonds be sold by a commissioner, instead of an order to the Sheriff to sell the attached property under Rev., sec. 784.</p> <p>8. Where, in order to ascertain the damages plaintiff sustained by breach of a covenant of warranty in a deed, it became necessary to show the value of certain corporate stock transferred with the deed, the Court erred in charging the jury that in valuing the stock they could consider “the testimony as to the payment of dividends and as to whether the plant had been a success or not,” as the value should have been determined as of the time the covenant was made, and according to the facts then existing, and not by what afterwards occurred.</p>

<p>Sales — Performance of Contract — Measure of Damages for Breach — Substantial Performance.</p> <p>1. A contract for the sale and delivery of yarns, in which it was stipulated that bills of lading were to be sent direct to the buyer and upon receipt of the goods he was to remit to the seller, was not substantially performed when the seller shipped the goods with bill of lading attached, and the buyer was justified in not receiving them, and is entitled to recover as damages the difference between the contract price and What it reasonably cost him on the market to supply the goods.</p> <p>2. One who invokes the doctrine of substantial performance in order to show a right to recover on a contract, must present a case in which there has been no wilful omission or departure from the terms of the contract.</p>

<p>Wills — Revocation—Declarations of Testator — Evidence—■ Handwriting — Comparison—Argument of Counsel — Exceptions — Burden of Proof as to Revocation — Harmless Error — Ambiguous Verdict.</p> <p>1. A cancellation, obliteration or erasure made after the execution of a will, which does not in fact destroy some portion of the material substance of the will, does not constitute a revocation thereof.</p> <p>2. To constitute a valid revocation of a will within the language of Rev., sec. 3115, it is essential, among other requirements, that the entire writing, including the signature, should be in the testator’s handwriting, where it is not attested by witnesses.</p> <p>3. Declarations of the testator made after the date of an alleged revocation written on the margin of the will, tending to prove that he did not write or execute the alleged revocation, were competent.</p> <p>4. In a proceeding' for the probate of a will, on the margin of which was written an alleged revocation by the testator, where it was admitted to be the testator’s will unless it had been revoked by the words written on its margin, declarations by the testator as to how he was going to leave his property, made before the date of the alleged revocation, were not competent.</p> <p>5. The declarations of the testator. may not he received to explain, change or add to a written will, nor can it be revoked by parol.</p> <p>6. While it was erroneous for counsel for the propounder of a will, in hisi argument, to show the alleged revocatory words on the margin of the will to the jury and point out differences in the formation of letters, etc., between the signature on the margin and the signature to the will, it does not constitute reversible error where the contestant failed to call the Court’s attention to it and took no exception at the time.</p> <p>7. In a proceeding for the probate of a will, on the margin of which was written an alleged revocation, after the propounder offered the will and proved its due execution, the burden of proving that the will had been legally revoked was upon the contestant.</p> <p>8. Where the Court erroneously put upon the propounder of a will the burden of proving that an alleged revocation of a will was not genuine, the contestant, at whose request it was done, cannot complain.</p> <p>9. In a proceeding for the probate of a will, where the usual issue was submitted to the jury, “Is the paper-writing propounded for probate, and every part thereof, the last will and testament of deceased ?” to which the' jury answered, “Yes,” the verdict was not ambiguous because the will bore on its margin an alleged revocation, as the marginal words were no part of the will.</p>

PROCEEDINGS by Caroline Linebarger and others against H. D. Linebarger and others, heard by Judge Henry R. Bryan and a jury, at the July Term, 1906, of the Superior Court of Catawba. . Propounders, appearing in the record as plaintiffs, offered for probate a paper-writing purporting to be the last will and testament of Ered. H. Linebarger, deceased.

ActxoN by A. S. Gaither by his next friend against P. 0. Carpenter, heard by Judge 0. M. Ooolce and a jury, at the May Term, 1906, of the Superior Court of Catawba. The plaintiff had been tried for larceny of a watch, and acquitted. This is an action against the prosecutor for malicious prosecution. Verdict and judgment for defendant; appeal by plaintiff.

AotioN by D. M. Sbeparcl against Western Union Telegraph Company, heard by Judge M. El. Justice and a jury, at the May Term, 1906, of the Superior Court of Hendue-SON. From a judgment for plaintiff the defendant appealed.

Special PROCEEDINGS for condemnation of land of S. Wittkowsky, beard by Judge B. B. Peebles on appeal from the Clerk, at the July Term, 1906, of the Superior Court of MeoKLENbubg. On 15 March, 1906, the Board of Trustees of Charlotte Township notified S. Wittkowsky that they had,condemned a strip of his land to widen the public highway. On 23 March, 1906, he applied to the Clerk of Court to appoint a jury of five men to assess his damages.

ActioN by W. LI. Morrison, administrator of J. A. Seals, against New Haven and Wilkerson Mining Company and others, heard by -Jydge G. M. Ooohe and a jury, at the August Term, 1906, of the Superior Court of Bukkib. This action was commenced by plaintiff to recover the value of his intestate’s service as a care-taker and agent in charge of mining property. The Court submitted the following issues: 1.

ActioN by Helen Hay against The People’s Mutual Benevolent Association of North Carolina, beard by Judge G. M. Ooolee and a jury, at the May Term, 1906, of the Superior Court of Catawba. From a judgment for the plaintiff the defendant appealed.

ActioN by Moses Peterson, against South and Western Railway Company, beard by -Judge O. M. Goolce and a jury, at tbe April Special Term, 1906, of tbe Superior Court of Mitci-iell. Moses Peterson, on bis oivn bebalf, testifies: “I was at Huntdale, in this county, 2 May, 1903. I went up on tbe train to that place and got off about 12 o’clock; tbe train returning passed there about 5 or 6 on its way to Johnson City.

ActioN by Tillinghast-Styles Company against tbe Providence Cotton Mills for breach of contract, beard by Judge G. M. GooTce and a jury, at tbe May Term, 1906, of tbe Superior Court of Catawba.

ActioN by W. IT. York against W. IT. Westall, beard bv Judge 0. U. Allen and a jury, at tbe June Term, 1906, of tbe Superior Court of BuRKE. This action! was brought to recover damages for a trespass committed in entering upon the lands of tbe plaintiff and cutting and removing timber trees therefrom.

ActioN by V. W. Bird against U. S. Leather Company, heard by Judge Q. M. Ooolce and a jury, at the September Term, 1906, of the Superior Court of McDowell.

AotioN by O. L. Parks against Southern Eailway Company, heard bj Judge W. B. Goimcill and a jury, at the June Special Term, 1906, of the Superior Court of Wilices. This action ivas brought for the recovery of damages alleged to have been sustained by the negligent construction of a drain or culvert, called in the pleadings and testimony a “trank,” under defendants road-bed, whereby the plaintiff’s land is washed, overflowed and injured.

<p>ActioN by C. A. Webb, doing business as C. A. Webb & Co., against Board of Trustees of tbe Morganton Graded School District, heard by Judge 0. H. Allen and a jury, at the June Term, 1906, of the Superior Court of Buncombe.</p> <p>The Legislature of North Carolina by chapter 455, Laws 1903, incorporated the Morganton Graded School, naming trustees thereof, and by chapter 174,- Laws 1905, authorized the said trustees to submit to the voters of the said Morganton School District a proposition for the issue of school bonds to the amount not exceeding $20,000, running forty years from date of issue, bearing interest at a rate not exceeding six per cent. At an election held pursuant to the provisions of said act, said trustees were authorized to issue the said bonds in accordance with the.said proposition. Pursuant thereto the said trustees advertised for bids for said bonds to the amount of $15,000.</p> <p>On 27 July, 1905, the plaintiff, C. A. Webb, doing business, under the firm name and style of C. A. Webb & Co., submit-tecl to said board a proposition to buy said bonds, as follows: “Eor tbe fifteen thousand dollars of coupon bonds of Morgan-ton Graded School District, due and payable forty years from date, with option of prior payment at the expiration of twenty years from date, drawing interest at the rate of five per cent., payable semi-annually, both principal and interest payable at the First National Bank of Morganton, to be dated 1 September, 1905, we will pay yon par and interest, and a premium of $030 and furnish free blanks upon the delivery' of the same to xis at Asheville, when legally issued to the satisfaction of our attorneys. We herein enclose certified check for $500 as guarantee to faithfully carry out this proposition.”</p> <p>At the time of submitting said proposition plaintiff enclosed a certified check on the Battery Park Bank of Ashe-ville for $500, endorsed to the president of the board of trustees, as follows: “Pay to the order of John II. Pearson upon our failure to comply with our contract this day made for the purchase of fifteen thousand dollars Morganton Graded School bonds. (Dated) July 27, 1905.”</p> <p>At the time of said proposition the defendant trustees were in correspondence with a number of bankers and brokers, dealers in securities of that character. Without advising with counsel, said trustees had, before that time, offered to sell bonds maturing in twenty years instead of forty years; the plaintiff instead of expressing a preference for bonds running twenty years, was of the opinion that said trustees were not authorized to issue said bonds, but did have authority to issue the bonds due and payable forty years from date, with option of prior payment at the expiration of twenty years from date. Immediately upon filing said proposition the said trustees ceased to negotiate with the proposed purchasers of its school bonds, and caused publication to be made that the said bonds had been sold to the plaintiff; the plaintiff submit- • tecl to bis attorneys in the city of Boston a certified copy of the act ” authorizing the said issue of bonds and all other certified records which had, at that time, come into the hands of the plaintiff, which tended to show the legality of said bonds, with a request that said attorneys render a legal opinion in respect to the legality thereof. That on 8 August, 1905, the said attorneys, Storey, Thorndyke, Palmer & Thayer, gave to the plaintiff their opinion in writing, saying: “The statute provides for bonds ‘running forty years from date of issue’ and the notice of election provides for bonds ‘to run forty years from date of issue.’ In our opinion the bonds must run for forty years without option of prior payment. This result, apparently, does- not coincide with your contract, or the contention of the board. Awaiting the further papers which you are to send us, and also awaiting your instructions as to whether in the circumstances we shall proceed to complete the examination, we are, etc.” Immediately upon receipt of said opinion, plaintiff submitted same to defendant Board of Trustees, advising said defendant that because of the failure of said attorneys to approve and pass the validity of the character of bonds mentioned in said contract said plaintiff would not take up and pay for the bonds mentioned in said contract unless the defendant would submit the facts with reference to said maturities to the Superior and Supreme Courts of North Carolina for an early decision upon the question as to whether said bonds should run for a period of forty years or could be issued so as to provide for an optional payment at the expiration of twenty years. Said proposition was declined by said board. The said board sent said check to the Battery Park Bank at Asheville for collection and withholds the same, refusing to surrender to the plaintiff. Subsequently the defendants sold the said bonds to the amount of $15,000 for a premium of $2.50 on the $100.</p> <p>Plaintiff introduced tbe deposition of Henry Ware, Esq., a member of tbe firm of Storey, Thorndyke, Palmer & Tbayer, wbo testified tbat be bad been engaged for' over nine years in examining records and papers relating to municipalities in North Carolina. Tbat be examined tbe records, etc., relating to tbe issue by the defendant trustees, at tbe request of tbe plaintiff, and was of opinion tbat tbe bonds issued either in accordance with tbe contract of purchase, tbat is, payable forty years from tbat date, with the option of prior payment at the expiration of twenty-years, would not be, or have been, legally authorized, for tbe reason tbat tbe statute authorizing, tbe bonds required them to run forty years from date, and did not authorize said trustees to make them payable at an earlier date, either absolutely or at its option. Tbat be communicated said opinion to tbe plaintiff on 8 August, 1905. He says: “I gave tbe said opinion in absolute good faith, honestly believing tbat I was correct in tbe same, and I still so believe.”</p> <p>Tbe defendant moved for judgment upon tbe pleadings, and this being denied, there was an exception. Thereupon bis Honor submitted tbe following issue to tbe jury: “Did tbe attorneys advise against tbe legality of tbe bonds as alleged in the fifth article of tbe complaint? Answer: Yes.”</p> <p>There were certain exceptions to the testimony and tbe rulings of bis Honor specifically set forth in tbe assignments of error and appearing in tbe opinion. Judgment being rendered for tbe plaintiff, tbe defendants duly excepted, and appealed.</p>

ActioN by the Ormand Mining Company and others against Bessemer City Cotton Mills and others, heard by Judge Henry R. Bryan and a jury, at the February Term, 1906, of the Superior Court of Gaston. From a judgment for the plaintiff, the defendants appealed.

<p>PROCEEDING for partition by W. S. Roberts against H. C. Roberts, beard by Judge O. U. Allen at tbe August Term, 1906, of the Superior Court of Buncombe, upon 'a motion by the defendant to set aside a decree of confirmation. Erom the order denying the motion, the defendant appealed.</p>

ActioN by Mrs. Bessie Shaw against Seaboard Air Line Railway Company, heard before Judge Henry R. Bryan and a jury, at the March Term, 1906, of the Superior Court of MECKLENBURG.

ActioN by North Eork Lumber Company against Southern Railway Company, heard by Judge O. U. Allen and a jury, at the September Term, 1906, of the Superior Court of Buncombe. From judgment for the plaintiff, the defendant appealed.

ActioN by Bank of Morganton against T. T. Hay, beard by -Judge O. H. Allen and a jury, at the June Term, 1906, of the Superior Court of Bueiie. The plaintiff brought this action to recover sixty dollars, the amount of a draft which was drawn on 16 March, 1905, by H. L. Hinson on the defendant, payable to its order five days after sight. The defendant refused to accept and pay the draft upon the ground that Hinson had no authority to draw it.

AotxoN by W. P. Parker and another against Continental Insurance Company, beard by Judge O. II. Allen and a jury, at the June Term, 1906, of the Superior Court of Buree. This action was brought to recover the sum of $1,500 alleged to be due on a fire insurance policy, issued 8 November, 1901, by the defendant to the plaintiff, on a stock of goods, which were destroyed by fire 18 November, 1901.

ActioN of ejectment by Sarah Steadman and others against W. R. Steadman and others, heard by Judge M. H. Justice and a jury, at the April Term, 1906, of the Superior Court of Rutherford. There was evidence offered showing: That Joseph Steadman died in Rutherford County in 1851, leaving a last will and testament, signed Joseph (X) Steadman, and witnessed by two subscribing witnesses.

ActioN by J. S. Martin & Son against W. L. Briscoe, pending in tbe Superior Court of Buti-iee.KObd, and beard by Judge M. H. Justice, resident Judge, on 28 September, 1906. This was a motion upon affidavit and notice to revive a dormant judgment. The defendant had confessed judgment in favor of the plaintiff as follows: North CaroliNa — Rutherford County. In the Superior Court, November Term, 1896. J. S. MartiN & SoN v. W. L. Briscoe.

PROCEEDING by city of Asheville against Wachovia Loan, and Trust Company, trustee, and P. M. Weaver, heard by Judge 0. II. Allen, upon demurrer, at the September Term, 1906,, of the Superior Court of Buncombe. This is a proceeding instituted by the plaintiff, City of Asheville, pursuant to the provisions of its charter, Private Laws 1901, ch. 100, sec. 65, to widen West College Street and have damages and benefits, sustained by the property affected, assessed.

<p>ActioN by the Cherokee Tanning Extract Company against the Western Union Telegraph Company, heard by Judge Thomas A. McNeill and a jury, at the April Term, 1906, of the Superior Court of Cheeokke.</p> <p>This is an action for damages alleged to have been sustained through negligence of the defendant in failing to transmit and deliver promptly a certain telegram. From a judgment in favor of the plaintiff, the defendant appealed.</p>

Special PROCEEDING- for condemnation, by tbe Carolina and Tennessee Railroad Company against J. S. Bailey and others, pending in tbe Superior Court of SwaiN, and beard by Judge W. B. Allen at chambers, by consent, at Asheville on 31 October, 1906, upon appeal taken by defendant from an order of tbe Clerk of tbe Superior Court appointing commissioners. From an order of bis Honor dismissing tbe appeal from tbe order of tbe Clerk as premature, tbe defendant appealed.

ActioN by Louis M. Bourne against R. G. Sherrill, heard by Judge 0. PL. Allen and a jury, at the September Term, 1906, of the Superior Court of Buncokbe. Issues were submitted and responded to by the jury as follows: 1. Did the defendant agree with the plaintiff that if he would sell him the lot, that in the event he did not build on it but sold it, the plaintiff was to have the profits ? Answer: Yes. 2. If so, what profit did the defendant derive from the sale of the lot?

ActioN by John G. Matthews against A. M. Ery and another, heard by Judge W. R. Allen and a jury, at the August Term, 1906, of the Superior Court of Swain. Erom the judgment rendered, the defendant appealed.

ActioN by M. A. Helms against Western Union Telegraph Company, heard by Judge B. B. Peebles at the October Term, 1906, of the Superior Court of MeckxenbuRG.

ActioN by T. M. Kimberly and. wife against E. S. How-land, beard by Judge ~W. B. Allen and a jury, at tbe June Term, 1906, of tbe Superior Court of Buncombe. Tbe plaintiffs brought two distinct actions for an injury to tbe feme plaintiff by reason of tbe negligence of tbe defendant in conducting certain blasting operations. Tbe busband sued for tbe loss of bis wife’s services. Tbe two actions were consolidated and tried together upon tbe following issues: 1.

ActioN by Maggie V. Green against John A. Green, heard by Judge T. A. McNeill and a jury, at the February Term, 1906, of the Superior Court of Jackson. This is an attachment for contempt for failing to comply with an order of the Court for alimony.

CONTROVERSY without action, by Cora McAfee and others against Natt Green and his wife, heard by Judge O. II. Allen at the September Term, 1906, of the Superior Court of Buncombe. This was a controversy submitted without action upon the following agreed facts: On 6 May, 1889, C. E. Graham, being the owner of the land in controversy, together with his wife, executed deeds of conveyance therefor to W. L. McAfee, as trustee.

ActioN by W. A. Stanford against A. F. Messiclc Grocery Company, beard by Judge B. B. Peebles and a jury, at the February Term, 1906, of the Superior Court of Eoceing-HAM.

<p>Building Oontracis — Entire — Payable by Instalments — Building Destroyed Before Completion — Bights of Parties ■ — Unendorsed Notes as Collateral.</p> <p>1. Where one contracts with the owner of a lot to furnish all the materials and build and construct a house thereon for a certain price, the'contract being entire and indivisible, if the structure, before completion, is destroyed by fire, without fault on the part of the owner, and the contractor, being given the opportunity, . refuses to proceed further, he is liable to refund any money which may have been paid him on the contract, and also for damages for its non-performance.</p> <p>2. If the contract price of the building is to be paid by instalments on the completion of certain specified portions of the work, each in-stalment becomes a debt due to the builder as the particular portion ■ specified is completed; and if the house is destroyed by accident, the employer would be bound to pay the instalment then due, but would not be responsible for any intermediate work and labor and materials.</p> <p>3. Where the contract to build a completed house is not entire and indivisible, but only a. contract to do a part of the work and furnish part of the material, the owner or some independent contractor, having undertaken, or being bound, to do some substantial portion of the work: if the structure is destroyed by fire or other inevitable accident, before completion, in such case the parties are relieved from further performance, and the contractor is ordinarily allowed to recover for what he has done, over and above the amount which may have been paid him.</p> <p>4. Where a contract for building a house, to be completed by a certain date, provided for the payment of an instalment when the “walls have been erected to the second story,” and the instalment was paid, and thereafter the building, before completion, was destroyed by fire without fault on the part of the contractor or owner, the owner is not entitled to recover this instalment, nor any part of it, nor is the contractor entitled to recover the value of the walls left standing.</p> <p>5. Where a contract for building a house, to be completed by a specified date, provided for the execution by the owner of certain notes and mortgage to mature after the date specified for the completion of the building, and the notes and mortgages were executed, but the building was accidentally destroyed by fire before its completion, the owner is entitled to have the notes and mortgages in the hands of a bank, without endorsement, as collateral for money advanced the contractor, delivered up and canceled.</p>

<p>ActioN by M. H. Holland, administrator of H. L. Holland, against Seaboard Air Line Eailway Company, beard by Judge Fred Moore and a jury, at the September Term, 1906, of the Superior Court of Moose.</p> <p>Erom a judgment of nonsuit, the plaintiff appealed.</p>

AotioN by James A. Cannaday against Atlantic Coast Line Railroad Company, beard by Judge (?. 8. Ferguson and a jury, at tbe June Term, 1906, of tbe Superior Court of Guilford. This was an action for tbe recovery of damages for personal injury.

<p>This is a petition by the defendant to rehear this case, reported in 141 N. O., 716.</p>

ActioN by Frank Duckworth against F. K. Mull, beard on appeal from a justice of tbe peace by Judge O. H. Allen and a jury, at tbe June Term, 1906, of tbe Superior Court of Buree.

AotioN of E. M. Sutton against D. S. Davis, beard by Judge Fred Moore and a jury, at tbe February Term, 1906, of tbe Superior Court of Union. Plaintiff claimed and testified that in June, 1904, be sold to defendant a bouse and lot in Waxbaw, N. C., for $500, and defendant executed and delivered to plaintiff bis sealed note for tbe purchase-price, as follows: 1 $500. Waxhaw, N. 0., 27 July, 1904.

AotioN by Leroy Pedrick and others against Raleigb and Pamlico Sound Railroad Company, pending in the Superior Court of Beaufort, and heard by Judge T. A. McNeill at Washington, N. 0., on 25 October, 1906.

ActioN by Lutber Hairston against the United States Leather Company, heard by Judge O. II. Allen and a jury, at the September Term, 1906, of the Superior Court of Buncombe.

<p>Corporations, Contracts of — Pleadings—Issues—Purchaser for Value — Fraud—Evidence—Transfer of Corporate 4s-sets — Collateral Agreement — Assignment for Benefit of Creditors.</p> <p>1. While a, corporation may contract under an assumed and fictitious name and be bound on the contract, the president or other managing officer, without any authority whatever, cannot bind the corporation by endorsing, in Ms own name, or the name of some firm of which he may be a member, a note payable to himself for which the corporation received no benefit or consideration.</p> <p>2. Where -this Court, on the former appeal, construed the pleadings as raising certain issues, and the parties went to trial on the pleadings, it is too late on this appeal to raise the question that such issues are not presented by the pleadings.</p> <p>3. One who is not a creditor of a corporation is not in a position to complain of the fact that all its debts’ were not paid.</p> <p>4. The exceptions to the charge of the Court on the issues directed to the question whether the defendant E. was a purchaser for value and without notice of D.’s fraudulent purpose in making certain transfers, are without merit, there being no evidence that E. had notice of facts sufficient to put him on inquiry.</p> <p>5. Where the president of a corporation who owned all of its stock transferred the same and its assets to defendant in payment of a debt due defendant, the latter’s collateral agreement in regard to the disposition of certain notes which they held and to pay the outstanding debts of the corporation did not malee the transfer an assignment for the benefit of creditors ■within the operation of Acts 1893, chapter 433.</p> <p>Hoke, J., dissenting.</p>

AotioN by John P. Ledford against A. S. Emerson, pending in the Superior Court of Cherokee. This is a petition for a habeas corpus by tbe defendant, in whicb he asks to be discharged from an arrest made by the Sheriff under an execution against his person issued in the above-entitled case, heard bj Judge W. R. Allenat chambers, on 6 August, 1906, and he was discharged.

AotioN by W. E. Hill and others against the Atlantic and North Carolina Railroad Company and another, heard by Judge B. F. Long, at the February Term, 1906, of the Superior Court of CbaveN. This suit was brought by the plaintiffs to annul the lease of the Atlantic and North Carolina Railroad Company to the Howland Improvement Company, now the Atlantic and North Carolina Company, one of the defendants.

<p>Indictment — Sufficiency of Evidence — -Discretion of Trial Judge — Mistrial—Continuance-—Corroborative Evidence —Bloodhounds.</p> <p>1. Evidence that defendant made a peculiar footprint, which was identified in soft ground in the morning following the burning of a house, being plain and distinct and leading off from the place, and that defendant’s shoes fitted the tracks, and that he denied burning the house before he was accused, was sufficient to go to the jury.</p> <p>2. Evidence that a bloodhound, well trained to track human beings and nothing else, and often used for the purpose, was put upon the tracks of the defendant and followed them until the defendant was “treed,” is sufficient to go to the jury as corroborative.</p> <p>3. It is in the discretion of the trial Judge to grant or refuse a mistrial and continuance, and his action is not reviewable.</p>

<p>This was an indictment against tbe defendants, tried before bis Honor, McNeill, J., and a jury, at Fall Term, 1906, of tbe Superior Court of Hyde County, upon a bill charging them with refusing and neglecting to keep up certain bridges in tbe said county. Upon tbe following special verdict tbe Court adjudged that tbe defendants were not guilty, and tbe State appealed.</p> <p>Speciat. Verdict. — Tbe jury being duly sworn and impaneled in this cause, for their verdict find tbe following to be -the facts, to-wit:</p> <p>That prior to and at the time of tbe laying out of tbe road and establishing same by tbe Commissioners of Hyde County, Q. M. Davis, tbe father of tbe defendants, W. C. Davis, C. W. Davis, Olivia Mann, and George Davis, owned tbe tract of land over which tbe road was laid out and established, and bad tbe same drained by ditches which were necessary for tbe proper drainage thereof. That Q. M. Davis is dead, and tbe defendants, other than W. D. Mann, who has intermarried with Olivia Davis, are tbe heirs of Q. M. Davis and own and hold tbe said tract of land, which is a farm, as heirs of' Q. M. Davis. That in tbe year 1857 tbe Commissioners of Hyde County, upon petition of Q. M. Davis and others, laid out and established tbe public road set out in tbe bill of indictment over tbe ditch and across the said tract of farm land. That at the time of establishing the said road the ditches were used and necessary for the drainage of the said farm, and no ditches alleged in the bill of indictment have been cut across the road since the establishment thereof by the defendants or those under whom they claim. That the owners of the road since its establishment' have maintained and kept the bridges until the last one or, two years.</p> <p>That at the time of and before the establishment of said road the said ditches were as they now are, and said road was laid out across ditches which at that time and in same manner now drain said farm of defendants. That said ditches do not drain the public, road, and are not necessary to the drainage thereof. That the defendants have failed and neglected to keep said bridges across the said ditches in repair, and same were, at the time this action was commenced, unsafe for public travel. That the overseer of said road gave due notice for ten days to defendants to repair said bridges, and they refused more than ten days, and still refuse, to repair same.</p> <p>If upon the foregoing facts the Court shall be of opinion as a matter of law that the defendants are guilty, the jury find them guilty; if upon said facts the Court be of opinion that as a matter of law on the said facts the defendants are not guilty, the jury find them not guilty.</p> <p>No ditches are referred to in this verdict except1 such as may have been cut before- the road was laid out.</p> <p>Upon the foregoing verdict the Court is of opinion that defendants are not guilty, and so adjudges. The Solicitor for the State excepts to the foregoing judgment and appeals to the Supreme Court.</p>

<p>Indictment — Concealed Weapons — Exceptions—Ignorance— Good Faith — Advice—Intention—Juñes—Facts—Charge —Error—Jurors Polled — Intimation of Opinion.</p> <p>1. In order to come within the exception of the statute (Revisal 1905, see. 370S) prohibiting the carrying of concealed weapons, the defendant, otherwise having the authority, must have been in the actual performance of his duties at the time.</p> <p>2. A person acting in ignorance of the law in good faith and upon advice of the Clerk of the Court or of an attorney, but in violation of the statute prohibiting the carrying of concealed weapons, is not excused.</p> <p>3. The intention of the defendant to conceal a 'weapon on his person is immaterial, if from his own testimony it appears that he necessarily knew that he was carrying it concealed.</p> <p>4. Juries should not only find the facts, but they should draw their own conclusions therefrom uninfluenced by the acts or language of the Court; and the language of a charge, “if you believe the evidence, the defendant is guilty, and you will return a verdict of guilty,” is improper, though, standing alone, not reversible error.</p> <p>5. It is error for the Court below, when informed by the jury in answer to his question, that some of them believed the defendant guilty and some not guilty, to poll the jury, ascertain from each that he believed the evidence, and then again instruct them, “if they believed the evidence, to return a verdict of guilty,” it being an intimation of opinion upon the facts and calculated to prevent an impartial consideration of the case.</p>

<p>Married Women ■ — • Executory Contract — Indictment — Refusal to Work Crops — Motion for New Trial Continued to Next Subsequent Term — Sickness of Judge — Motion Made Then ■ — ■ Appeal Lost — Relief — Merits Decided to Avoid Further Useless Prosecution.</p> <p>1. A married woman, without the written consent of her husband, cannot make a valid executory contract, unless it falls within, the exceptions of the Revisal, sec. 2094; and where there is no evidence of such assent she cannot be held criminally liable for wilfully refusing to work certain crops on lands “rented” by her, under the Revisal, sec. 3367.</p> <p>2. When owing to the illness of the trial Judge the cause could not proceed to judgment, and when, without default or laches on the part of the defendant, she had her motion continued and moved for a new trial upon exceptions reserved at the next term, when judgment was pronounced against her, from which she appealed, the appeal was lost under Revisal, sec. 534; but a new trial will be granted, as the loss resulted from an act of God, which she could not foresee, and the consequences of which she could not avoid.</p> <p>3. In an appeal from a conviction in criminal cases it is not only proper, but the duty of the Supreme Court, when a new trial is granted, to decide upon the legal merits ' of the case, if it appears that the State cannot ultimately succeed in the. prosecution.</p> <p>Clark, C. J., concurring in result.</p>

INDICTMENT for selling liquor without a license, heard before his Honor, Moore, J., and a jury, at the February Term, 1901,'of the Superior Court of DavidsoN County. The defendant was indicted in the Court below for selling liqüor without a license. The jury returned a special verdict in which they found that the defendant did not have a license to sell liquor. They further find that the testimony of the witnesses is true.

<p>Oeiminal actioN, tried before Moore, Jand a jury at tbe December Special Term, 1906, of tbe Superior Court of Alamance County. Pertinent facts are stated in tbe opinion of tbe Court.</p>

<p>INDICTMENT for the murder of one Frank McMillan, tried before bis Honor, Wcut'd, J., and a jury, at May Term, 1906, Superior Court of Ashe County.</p> <p>There was verdict of guilty of murder -in the first degree, and from sentence thereon defendant apealed to the Supreme Court.</p>

INDICTMENT for tbe murder of one Lawrence Nelson, tried before bis Honor, Peebles, J., and a jury, at February Term, 1901, of tbe Superior Court of Caldwell County.

<p>Indictment —Trespass—Railroads—Right-Of-Way-—• Appeal —Advice of Counsel.</p> <p>Payment of the appraisement into Court is a condition precedent to a right of entry for construction purposes by a railroad; upon the trial under an indictment (Revisal, sec. 3688) for trespass on lands after being forbidden, it is no defense to show that defendant acted under the instructions of his superior officer of a railroad company in entering upon the lands to construct a railroad, . pending an appeal by the railroad company (Revisal, sec. 2587), when the company has not paid into Court the sum appraised by the commissioners. Evidence that such superior officer therein acted by the advice of eoimsel learned in the law is incompetent.</p>

This was a criminal action charging defendant with selling liquor after 11 o’clock P. M., under sec. 9, cb. 158, of the Private Laws of 1895, begun before the Mayor of Mor-ganton and carried on appeal by' the defendant to the Superior Court of BubKE County, where the case was tried at March Term, 1907, before his Honor, Guión, J., and from the judgment rendered, defendant appealed to the Supreme Court.

<p>INDICTMENT for bigamy, tried before bis Honor, Guión, and a jury, at April Term, 1907, of tbe Superior Court of Rutherford County.</p> <p>Tbe defendant’s counsel moved to quasb tbe bill of indictment upon tbe grounds:</p> <p>1. That tbe bill is defective in that it failed to charge tbe date of either of tbe alleged marriages.</p> <p>2. That tbe bill is defective, because it fails to allege where and when tbe second marriage took place.</p> <p>3. That tbe bill is defective, as it -failed to allege that tbe former wife bad not been divorced, or that she bad not been out of the State and knowledge of tbe defendant for seven years.</p> <p>4. That tbe bill is defective, because tbe foreman of tbe grand jury did not sign tbe instrument on tbe back of tbe bill, underneath tbe words “Those marked X sworn and sent.”</p> <p>5. That there was no evidence upon which to base a verdict of guilty.</p> <p>The motion was disallowed, and defendant appealed.</p>

H. Allen, J., Superior Court of Buhgombe County, November Term, 1906. Defendant Bob Ring, having been beld for a misdemeanor, defendant A. L. Cooper became surety for bis appearance before tbe Superior Court of Buncombe County.

Bastardy PROCEEDING, commenced before a justice of the peace and tried on appeal by bis Honor, Cooke, Jand a jury, at February Term, 1907, of Buncombe Superior Court. The evidence tended to show that' the feme plaintiff had been delivered of a bastard, which had passed through the full period of gestation, but was born dead.

This was a criminal action, tried before bis Honor, Ward, J., and a jury, at March Term, 1907, of the Superior Court of ClbvblaND County.