Volume 145 — North Carolina Reports

<p>Civil actioN, beard on exceptions to report of referee, before Lyon, J., at June Term, 1907, of tbe Superior Court of Warren County. The Court overruled the exceptions, confirmed the report, and defendant excepted and appealed.</p>

<p>Civil aotioN, tried before W. B. Allen, and a jury, May Term, 1907, of the Superior Court of Beaufort County. The title to- the land in controversy was, on and prior to 12 August, 1856, in Patsy Dudley for life, remainder to J. C. Rogerson and W. 0. Rogerson. On said day J. 0. Rogerson executed to Hosea Dudley a power of attorney, under seal, authorizing him to sell and convey his interest in the land. Said power of attorney was duly registered. W. 0. Rogerson, prior thereto, had conveyed to said Hosea his one-half interest. On the same day, to-wit, 12 August, 1856, the said Hosea Dudley, together with his wife, the life tenant, executed a deed, describing the said land, to Noah Leggett, which contained appropriate words of conveyance. The premises of said deed is as follows: “This indenture, made * * * 'by an¿ between Hosea Dudley in his own right as assignee of W. 0. Rogerson, of Hosea Dudley as attorney for Josephus Rogerson and of Hosea Dudley and wife, Patsy, of the first part,” etc. The said deed was signed and sealed by Hosea Dudley- and his wife and by “Hosea Dudley, attorney for Josephus Rogerson,” and duly proven and registered, 17 November, 1856, in the office of the Register of Deeds of Beaufort County. Noah Leggett, the grantee, entered immediately into possession of the land and remained therein until his death, during the year 1898, whereupon his son and heir at law, Council Leggett, entered and has at all times since remained in possession thereof.</p> <p>Patsy Dudley, the life tenant, died 26 July, 1877. Josephus Rogerson died intestate during the year 1888. Summons was issued herein 6 July, 1897, and servejl upon Noah Leggett 13 July, 1897. At tlie Eall Term, 1898, of the Superior Court tbe following docket entries appear: “Complaint filed 1 December, 1897. Death of defendant suggested, and notice ordered to issue to personal representative and beirs at law to come forward and defend suit. Continued.” At tbe Fall Term, 1899, tbe same entries appeared, together with tbe word “Issued.” Tbe same entries appear at each term, with tbe exception of two terms, 1900-1901, until and including the October Term, 1902. At tbe October Term, 1905, an order was passed making Council Leggett and bis wife, beirs at law of Noah Leggett, parties defendant, and directing alias summons to issue. Time was allowed plaintiffs to file amended complaint.</p> <p>Summons was duly issued and served on them 17 November, 1905. At the February Term, 1906, plaintiffs filed a complaint, setting forth tbe title to one-half undivided interest in Josephus Rogerson at tbe time of bis death, and alleging ownership in themselves as beirs at law of said interest; that defendants were tbe owners of the other half and in possession of tbe whole tract, wrongfully withholding same from plaintiffs. Defendants answered, denying plaintiffs’ title, pleading the statute of limitations and for further defense setting up the facts herein stated. They insist that if the paper-writing executed by ITosea Dudley, as attorney for Josephus Rogerson, did not operate to convey the legal title to said Rogerson’s interest, it was a valid contract to convey, supported by a valuable executed consideration, and vested in their ancestor a perfect equity to call for the legal title.</p> <p>ITis Honor instructed the jury, upon the entire evidence, that plaintiffs were not entitled to recover. Plaintiffs excepted. Verdict and judgment. Plaintiffs appealed.</p>

Civil actioN for the collection of town tax on factories, etc., heard by W. R. Allen, J„ upon facts agreed, at May Term, 190Y, of the Superior Court of Bbaufobt County. .The facts sufficiently appear in the opinion of the Court.

<p>Oxviu ACTION, tried by W. B. Allen, Jand a jury, at Spring Term, 1907, of the Superior Court of Gates County.</p> <p>This was an action by a lower proprietor against an upper for increasing the flow of water in such way as to obstruct and throw it on the plaintiff’s land and water-sog it.</p> <p>There was evidence offered by plaintiff tending to show that defendant bad collected water that fell on his own land, and by means of ditches had conveyed the water into a ditch called Hawtree Branch, on his own land, which ran across the land of one Mullen and was for the purpose of draining the land of the defendant, and which he was under obligation to keep in good order; that the lower end of said ditch ran up to the land of the plaintiff, and, if kept open and clear, would have caused the water which the defendant, by his ditches, cut to drain his own land, had emptied into said Hawtree Branch ditch, to flow through the land of the plaintiff and into a certain canal; that defendant had failed and refused to keep open said Hawtree Branch ditch at its end close to the land of this plaintiff, and had allowed same to become clogged and dammed up,, thereby causing the waters which his ditches had emptied into Hawtree Branch ditch to overflow the banks of said ditch and spread upon and submerge and drown the land of the plaintiff, thereby causing him injury and damage.</p> <p>There was evidence introduced by the defendant to the contrary.</p> <p>There was also evidence tending to show that Hawtree Branch was a natural water course, and that defendant’s ditches emptied into it at a place not on his own land.</p> <p>The Court, among other things, charged the jury: If defendant, the upper tenant, collects the surface water falling on his land in ditches and discharges the ditches on the land of the lower tenant, the plaintiff, otherwise than by natural water courses on his own land, and thereby increases the flow of water on the land of the lower tenant, he is liable therefor; and if you so find by a greater weight of the evidence, answer the first issue “Yes,” although the surface water of defendant’s land would flow to land of the lower tenant. The defendant assigns that part of the charge as error.</p> <p>There was evidence on both sides tending to show that there were several other landowners besides the defendant whose lands drained into Hawtree Branch, or Hawtree Branch ditch, as the plaintiff called it; and there was also evidence tending to show that the plaintiff had not attempted to cultivate or clear up the land which he claimed to be damaged, nor to drain the same since he went into the possession thereof, about eighteen years ago; ,and that those under whom he claimed had not attempted to cultivate it or to drain it since the latter part'of- the Civil War, and that the plaintiff had sold and allowed timber trees on the land along the course of Hawtree Branch to be cut, ,and that the tops of the trees -had fallen across the branch and had not been removed, and evidence to the contrary.</p> <p>There was also evidence tending to show that Hawtree Branch was a natural water course, and there was evidence on the part of the plaintiff tending to show that there had been many years ago a ditch along Hawtree Branch, and that it was a ditch, and evidence on the part of defendant tending to show that there had never been a ditch along its course, but that it had always been .a natural water course.</p> <p>Plaintiff introduced evidence to show the injury to the land caused by the flooding of the land. The defendant moved to set aside the verdict and dismiss the action on the ground that the plaintiff had sought the wrong remedy, and that he ought to have applied the statutory remedy, and because of the manifest injustice done the defendant by reason of the fact (1) that the damages attempted to be'proved were hypothetical and not actual; (2) that, according to all the evidence, if any damage was incurred by plaintiff, as alleged, several other parties besides the defendant contributed thereto, and, therefore, defendant ought not to bear all the burden, and for that reason the verdict should be set aside; and this contention was presented to the Court as a matter of right and not as a matter of discretion. The Court overruled the motion, and the defendant excepted. Verdict and judgment for plaintiff. Appeal by defendant.</p>

ActioN for the specific performance of a contract to sell and convey a tract of land, tried before W. R. Allen, J., and a jury, at May Term, 1901, of the Superior Court of Beaueoet County. From judgment sustaining the motion to nonsuit and dismissing the action plaintiff appealed.

Civil actior to recover possession of a leasehold, tried before 17. B. Allen, J., and a jury, at Spring Term, 1907, of TYRRELL Superior Court. The Court adjudged, upon the facts agreed, that plaintiff was not entitled to recover. ■ Plaintiff appealed.

Civil aotioN to recover damages for personal injury caused by the alleged negligence of defendant company, tried before W. B. Allen, Jand a jury, at February Term, 1907, of the Superior Court of Beaueoüt County.

Civil actioN, beard upon a case agreed by W. B. Allen, J., at March Term, 1907, of Gates Superior Court. T'be plaintiff brought suit to recover the amount of wharf-age charges upon goods shipped on a vessel of the Albemarle Steam Navigation Company from Eranklin, Virginia, to Gatesville, in this State.

<p>Civil ACTION, tried before Lyon, J., and a jury, Spring Term, 1907, of the Superior Court of Beetie County.</p>

ActioN to recover penalty of railroad company, beard bj Lyon, J., upon appeal from a court of a justice of tbe peace, at June Term, 1907, of tbe Superior Court of WabbeN.

This was a civil action which was tried before Lyon, J., and a jury, at March Term, 1907, of Halifax Superior Court. The plaintiff was employed by the defendant to straighten boards in its planing mill.

Civil aotioN, tried before Nea!. J., and a jury, February Term, 1901, of the Superior Court of CraveN County. The statement of facts sufficiently appears in the opinion of the Court.

Civil actioN, beard by Neal, J., upon demurrer, at February Term, 1901, of CeavbN Superior Court. Tbe plaintiff alleged in bis complaint that tbe defendant owned a large tract of land in said county .and employed bim to log tbe same at $3 per 1,000 feet, there being 150,000,000 feet of timber on tbe land at the time.

<p>1. Evidence — Negligence—Contributory Negligence — Nonsuit.</p> <p>A motion for judgment as of nonsuit will not be allowed when there is evidence tending to show that the plaintiff, an employee of defendant company, while in discharge of his duties, attempted to board a car, next to the engine, of defendant’s slowly moving train; that the engineer saw him. approach, and could have seen him in the act of boarding the car, and at that moment opened the throttle of the engine “and made a jerk,” causing him to fall under the car and sustain the injury. Such evidence is sufficient to sustain a verdict that the defendant was negligent, and does not establish contributory negligence as a matter of law.</p> <p>2. Same — Withdrawn—Objections and Exceptions — Appeal and Error.’</p> <p>Exceptions to evidence not taken on the trial at the time will not be considered on appeal; and likewise as to the language of the trial Judge in withdrawing improper evidence from the jury.</p> <p>3. Evidence — Custom.</p> <p>Evidence of -plaintiff as to the custom of defendant’s servants to ride upon defendant’s cars, as he was doing when injured, is competent, though he had only been employed by defendant one month.</p> <p>4. Measure of Damages — Appeal and Error.</p> <p>It is not reversible error, upon the measure of damages, for plaintiff to testify that defendant had promised him promotion.</p>

This is a proceeding under tbe entry laws (Revisa!, sec. 1109, et seq.), tried before bis Honor, W. B. Allen, J., at Spring Term, 1907, of Dare. Superior Court. Erom tbe judgment rendered the protestants, Bowser and Shannon, appealed.

Civil actioN, tried before Lyon, upon demurrer to the complaint, at June Term, 1907, of the Superior Court of WaRRBN County. The plaintiff alleges that the feme defendant, being the owner of the land described in the complaint, with the written assent of her husband, the male defendant, for a full and valuable consideration, conveyed said land to him by deed, bearing date 6 July, 1904.

<p>Judgment — Estoppel—Lands.</p> <p>A judgment by default final upon a complaint alleging that the plaintiff was the “owner in fee simple” of certain described lands, that they were withheld by the defendant, and asking to recover the possession, puts the title to the lands in issue, and operates as an estoppel in a subsequent action by the same defendant against the same plaintiff in an action to recover the lands.</p>

Civil actioN, tried before Lyon, J., at Spring Term, 1907, of tbe Superior Court of NORTHAMPTON County. It appears that W. E. Grubbs died on or about June, 1907, intestate, and domiciled in said county of Northampton. The plaintiff is the duly qualified and acting administrator of his estate, and the defendants are his widow and child and only heir at law.

Civil ACTION, tried before Goolce, J., and a jury, at October Term, 1906, of tbe Superior Court of Era niutv County. From judgment for tbe plaintiffs defendants excepted and appealed.

Civil aotioN to recover damages for personal injury, tried before Lyon, J., at March Term, 19.07, of the Superior Court of Halifax County. Erom the judgment rendered defendant appealed.

Civil actioN, tried before Neal, J., and a jury, at February Term, 1907, of tbe Superior Court of CbaveN County, for injury caused by alleged negligence of the defendant in a collision between two boats on Neuse Eiver.

Civil aotioN, tried at October, 1906, Special Term of LeNOIr Superior Court, before Webb, J., and a jury. • The plaintiff sued to recover damages received from falling in a ditch at night, which ditch had been dug during the day of 4 May, 1905, across'defendant’s street. The usual issues as to negligence, contributory negligence and damage were submitted. The jury foúnd for the plaintiff on all issues.

ActioN of ejeotmeNt, tried before Long, J., and a jury, September Term, 1906, of tbe Superior Court of Martin County. The pertinent facts sufficiently appear in the opinion of the Court.

Civil actioN, tried at April Term, 1901, of Nash Superior Court, before Biggs, J., aud a jury. Tbe action was brought to set aside three deeds executed 1 March, 1900, by plaintiff to Sarah J. Todd, the feme defendant. At the close of the evidence defendants’ motion to nonsuit was sustained, and plaintiff excepted and appealed.

<p>Civil actioh, tried before Biggs, J., and a jury, at April Term, 1907, of the Superior Court of Edgecojob County.</p> <p>This action was brought by the plaintiff to recover $1,999, alleged to be due on a contract to indemnify it against liability to its employees, which was the amount theretofore adjudged to one J. G-. Andrews, an employee of the plaintiff, on account of injuries received by the negligence of Henry Clark Bridgers, another of its employees, in a snit brought by him against the plaintiff. The policy of the defendant indemnifies “against loss from common-law or statutory liability; for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employee or employees of the assured, while on duty at the places and in the occupations mentioned in this application, in and during the. continuance of the work described in this application.” But the liability is limited by the following clause: “This policy does not cover loss for liability for injuries, as aforesaid, to or caused by any person unless his wages are included in the estimated wages named in the schedule and he is on duty at the time of the accident, in an occupation hereinafter described, at the place or places mentioned in the schedule.” It appears that Andrews’ compensation as an employee of the plaintiff was included in the estimated wages named in the schedule, which is a part of the policy, while Bridgers’ was not so included.</p> <p>Issues were submitted to the jury and answered, by consent, as follows: “1. Was J. G. Andrews, at the time of the injuries for which he obtained the judgment in controversy, an employee of the plaintiff, and was he on the pay roll and his wages' included in the estimated wages named in the schedule ?” “Tes.” “2. Were the injuries to J. G. Andrews for which the judgment was obtained caused by an employee of the plaintiff, and .if so, who ?” “Yes; Henry Olark Bridgers, who was at the time running as engineman, and who held the office of president and general manager.” “3. Were the wages of such employee included in the estimated wages named in the schedule?” “No.” The Court, upon the verdict, was of the opinion that the defendant was not liable to the plaintiff upon the contract, and so adjudged. The plaintiff thereupon appealed.</p>

Civil action, beard by Long, J., upon exceptions to report of referee, at April Term, 190Y, of the Superior Court of New Hanover County. The Acme Machine Works sold to the Auburn Lumber Company certain machinery and personal property for $2,YY0, of which sum $1,000 was paid in cash, and the balance of the purchase money was secured by two notes, due, respectively, 23 February and 24 April, 1903.

Civil aotioN, heard on motion, by special appearance, before Long, at June Term, 1906, of the Superior Court of MaRtiN County, made to set aside and vacate service of summons on the Insurance Commissioner. On 19 April, 1884, defendant, a New York corporation, issued to A. W. Sattertbwaite, of Yatesville, Beaufort County, in this State, a policy of insurance upon bis life for $6,000, payable to insured or bis legal representatives.

<p>Civil acttoN, tried before Biggs, J., and a jury, at February Term, 1907, of the Superior Court of VaNCe County.</p> <p>Action for personal injury sustained by plaintiff while in the employment of defendant.</p> <p>Plaintiff testified that he was, at the time of, and had been for many years before the injury complained of, in the employment of defendant as yard locomotive engineer at Henderson, N. C.; that on 10 December, 1903, Mr. Clark, the traveling engineer of defendant, who had charge of its engines and the duty of looking after them, came to Henderson and told him that the front end of the engine was in bad condition and must be fixed at once. Plaintiff told Clark that the brass was worn out, and that he could not fix it. Clark said that it must be done — that plaintiff must fix it at once. Plaintiff told him that he would do the best he could with it; that he had no tools. He said that it must be done that night. It snowed and the wind blew “as hard as you ever saw it.” When plaintiff quit work he backed down to a yard and bought some wood. Seagrave was fireman on the engine. Plaintiff says: “We were working on the main rod. Sea-grave had never seen a rod taken down before, and didn’t look like he knew anything about it. I was trying to enter the rod into the back end of the strap, when his end slipped out of his hand and jerked my hand down on the rod. He dropped his end of the rod. I had hold of the other end of the rod; it mashed my arm. It was eight or ten feet long. It was about half-past ten or eleven o’clock at night when I got through fixing the engine.” He testified that certain tools were necessary to do the work; that he purchased a file himself, and that it was necessary to have one man to help him. The foregoing is all of the evidence in regard to the time, place, manner, etc., of the injury. There was evidence in regard to the condition of the engine and of the work to be done on it, the character and extent of the injury, none of which is necessary to set out in detail for the purpose of passing upon the exceptions referred to and relied upon in the defendant’s brief. Defendant moved for judgment of non-suit. Motion denied. Defendant excepted. The usual issues were submitted to the jury.</p> <p>His Honor, after stating the contentions of the parties, among other instructions -not excepted to, charged the jury: “As between master and servant, the mere fact of the servant heing injured while in his employ is not prima facie evidence of negligence, and the burden is upon the servant to prove the injury was caused by the master, and he must show that the injury was the result of his negligence. It is not sufficient to show that he was injured; he must go further and show the cause of the injury, and that it was the result of negligence of some agent of the master, and that it was this negligence that was the proximate cause of the injury. So much for the questions of law which I shall give you to guide you and control your actions in determining the first issue. Now, applying these rules to the facts in the case, you must determine whether Mr. Horton was injured by the negligence of the defendant’s fireman, Mr. Seagrave, and whether that negligence was the cause of the injury, if you find that Mr. Horton sustained an injury. Did the defendant railroad, through its agent, fail to exercise proper care, as I have explained to you, in handling this rod, and was such negligence the proximate cause of the plaintiff’s injury, if you find he was injured, as claimed by him, on or about 10 December, 1903 ? That is the question which you must determine with reference to the first issue.” Iiis Honor explained tbe evidence and directed tbe attention of tbe'jury to tbe several issues and phases of the case. To this there is no exception.</p> <p>Defendant requested bis Honor to give the following special instructions:</p> <p>“As between master and servant, the mere fact that tbe servant is injured while in his employ is not prima facie negligence and is no evidence of negligence.” This prayer was given, tbe Court adding: “But tbe burden of proof is upon the-servant to prove that* bis injury is caused by the negligence of tbe master.”</p> <p>“Upon tbe whole evidence, if tbe jury believe it, they will answer the first issue 'No.’ ” Kefused, and tbe defendant excepts.</p> <p>“The mere fact that plaintiff’s arm was injured while in the employment of tbe defendant is no presumption of negligence.” Tbe Court gave this instruction.</p> <p>“Tbe mere fact that Joseph Seagrave dropped tbe rod is no presumption of negligence.” Tbe Court gave this instruction.</p> <p>“The general rule is, that tbe mere fact and proof of injury, unsupported by other evidence of negligence or any attending circumstances whereby tbe jury can reasonably infer negligence, is not a presumption of negligence; and if tbe jury should find from tbe facts in this case there are no attending circumstances from which they can reasonably infer negligence, other than tbe bare fact of tbe unexplained falling of the rod upon tbe plaintiff’s arm, they will answer tbe first issue 'No.’ ” His Honor gave the first part of tbe instruction, but omitted to give tbe latter part, to-wit, “and if tbe jury should find from tbe facts in this case that there are no attending circunrstances from which they can reasonably infer negligence, other than tbe bare fact of tbe unexplained falling of tbe rod upon tbe plaintiff’s arm, they will answer the first issue 'No.’ ” Defendant excepted.</p> <p>There was judgment upon the verdict. Defendant appealed.</p>

Civil action, tried at May Term, 1901, of tbe Superior Court of LeNOIR, County, before Long, J., and a jury. Plaintiff sues to recover one-fifth of a policy of insurance on the life of his testator, issued by defendant. The Court submitted the following issues: “1.

Civil actioN, tried before W. JR. Allen, J., and a jury, at February Term, 1907, of the Superior Court of Beaueobt County.

Civil action, tried at February Term, 1901, of Wake Superior Court, before Jones, J., and a jury. These» issues were submitted: 1. Was plaintiff injured by tbe negligence of tbe defendant, as alleged in the complaint ? Ans. “Yes.” 2. Did plaintiff, by bis own negligence, contribute to tbe in jury complained of ? Ans. “No.” 3. What damage, . if any, is plaintiff entitled to recover ? Ans. “$7,500.” From tbe judgment rendered defendant appealed.

MotioN in tbe canse, beard and determined before Long, J., at May Term, 1907, of tbe Superior Court of Sampson County.

^ Civil aotioN, tried before Jones, J., and a.jury, at April Term, 1907, of tbe Superior Court of Wake County. This action was brought by the plaintiff to recover the sum of $250, alleged to be due by the defendants, as commissions for the sale of two lots in the city of Ealeigh.

Civil actioN, tried before Long, J., and a jury, at January Term, 1907, of tbe Superior Court of Pender County. Erom a judgment for plaintiff defendant excepted and appealed. The facts sufficiently appear in the opinion of the Court.

<p>Civil actioN, brought to August Term, 19 07, of FeaNic-LiN Superior Court by the plaintiff and in behalf of other-taxpayers of Franklin County against tlie Board of Commissioners of said county, to restrain said board from collection of a tax levied at tbe meeting’ of June, 1907, of one cent on the $100 worth of property and three cents on each taxable poll, for the support and maintenance of the public schools of the county, in addition to and beyond the limit of 66% cents on the $100 worth of property and $2 on each taxable poll, levied for general State and county purposes in said county in said year.</p> <p>Plaintiff obtained from lion. O. M. Cooke, Judge resident of the Fourth Judicial District, a temporary restraining order, returnable before himself. Upon the hearing his Honor dissolved the restraining order, and plaintiff appealed.</p>

<p>Civil aotioN, tried before Webb, J., and a jury, at October Term, 1906, of the Superior Court of LeNOIR. County, for tbe recovery of a lot in the city of Kinston.</p> <p>The facts material to an understanding of the appeal, as shown by admission in the pleadings and the uncontradicted evidence, are: The title to the land in controversy was, prior to March 1, 1869, in James B. Webb, father of plaintiff, George B. Webb, and those under whom the feme plaintiff, Emma P. Webb, claim. On the first day of March, 1869, the land was sold by the Sheriff of Lenoir County, under executions issued upon judgments against said James B. Webb, and conveyed to Mary M. Webb, his daughter, who intermarried with Kobert S. Hay. Plaintiffs allege that, subsequently, in the year 1869, the said Mary IT. Webb conveyed said lot of land by deed in fee simple, as tenants in common, to Benjamin T. Webb, George B. Webb, N. IT. Webb (now the wife of IT. G. West), J. W. Webb, Carrie J. Webb (now the wife of I). E. Midyette), Emma Webb (now the wife of T. W. Noland) and Martha J. Webb, subsequently the wife of one Lewis Meyer, and who has since died, leaving as her only beixs at law Lily and Daisy Meyer surviving ber. That in said deed mentioned in tbe fourth paragraph of this complaint the said James B. Webb was given and granted an estate in said lot of land for his own life, the grantees named in said fourth paragraph to have and to take their interest in the same after the death of the said James B. Webb. That the said deed was recorded in the Register’s office of Lenoir County and said State, in book No. 42, page 295, the records of which have been destroyed by the fire of 1878 or 1880, except the index thereto, and the said deed itself is lost or destroyed and cannot be found, after a thorough search therefor. That the said Mary M. Webb, who, on 28 June, 1881, was Mary M. ITay, wife of Robert S. Hay, did, together with her said husband, execute, on said 28 June, 1881, another deed in place of said lost or destroyed deed, conveying said lot of land in the same way and manner as did the said lost or destroyed deed, except as to Martha J. Webb, who intermarried with one Lewis Meyer, and she having died prior to said 28 June, .1881, her share in said lot of land is in the substituted deed conveyed to her only heirs at law, Lily and Daisy Meyer. (See said deed, recorded in said county and State, in the Register’s office, in book No. 6, pages 558, 559, 560, as part of this complaint).</p> <p>The deed of 1 June, 1881, referred to, was put in evidence, and contained the following language: “That, whereas, on or about the first day of March, A. D. 1869, the said Mary M. Hay, then Mary M. Webb, for and in consideration of natural love and affection, did sell and convey to the said Benjamin T. Webb, George B. Webb, N. M. Webb (now N. M. West), J. W. Webb, Carrie J. Webb, Emma Webb and Martha J. Webb (mother of the said. Lily and Daisy Meyer), and their heirs, certain tracts or lots of land in the county of Lenoir, in and near the corporate limits of the town of Kinston, * * * adjoining the lots of John Ennis and John D. Long; and, whereas, the said lots of land were by the said Mary M. Hay, then Mary M. Webb, conveyed and assigned to tbe said E. T. Webb and others, and their heirs, by a certain deed of absolute conveyance, duly executed, but with the special trust and confidence that they, the said B. T. Webb and others, pay over and deliver to their father, James B. Webb, the rents and profits of said lands during his natural life, and that the said J. B. Webb be allowed to occupy the said premises as a home for himself and family during his natural life; and, whereas, the said deed of conveyance is now supposed to be lost: Npw, therefore, this indenture witnesseth, that for and in consideration of the foregoing premises, together with the further consideration of the love and affection to them, the said B. T. Webb and others, borne by the said Mary M. Hay and husband, Bobert S. Hay, have given, granted, released, confirmed and quitted claim, and by these presents do give, grant, release, confirm and quit claim unto the said B. T. Webb and others, their heirs and assigns, all their right, claim, interest and property in and to the aforesaid parcels of land, to have and to hold to them, the said B. T. Webb and others, and their heirs in fee simple, forever. But with this special trust: that they pay over annually and deliver to James B. Webb the rents and profits of said lands for and during his natural life, and they permit the said James B. Webb to occupy and use said premises as a home for himself and family during the term of his natural life.”</p> <p>On 17 December, 1874, B. T. Webb, one of the sons of James B. Webb, executed a deed, describing said lots, to E. W. King, in which are set forth the following recitals:</p> <p>“Whereas, Benjamin T. Webb, commissioner appointed by the court to sell a certain lot of land mentioned in the petition of B. T. Webb, Lewis Meyer and wife (Martha Jane), Gfeorge B. Webb, Nannie Webb, Caroline J. Webb, Emma Webb and James B. Webb and wife, Margaret; and, whereas, in pursuance to the order of said court, I, Benjamin T. Webb, commissioner, as aforesaid, having advertised said lot of land, agreeably to law and agreeably to the order of said court, for more than thirty days, did expose the same at public sale at the courthouse door in the town of Kinston, Lenoir County, on 14 December, A. D. 1874, when and where Richard W. King.became the purchaser, he being the last and highest bidder,” etc.</p> <p>R. W. King conveyed the lot to one Anthony Blount, and, by a connected chain of conveyances, such title as King acquired vested in the defendants Peter R. Borden and E. W. Borden during the year 1885 and 1886, at which time they entered into possession, and have continued therein, claiming under said deed, until the institution of this action, 1 April, 1902. The deeds from King and others in the chain of defendants’ title, including those to themselves, are duly recorded. Plaintiffs allege that the deed of B. T. Webb, commissioner, to King was void and conveyed no- title, by reason of fraud, misrepresentation, etc., in respect to the alleged proceedings under which it purports to have been made, etc. It is unnecessary to set forth in detail plaintiffs’ contentions in this respect. James B. Webb died 3 August, 1901. Plaintiff George B. Webb was of full age 8 July, 1876. The youngest child, a daughter, was of full age 17 February, 1888. All of the daughters married before reaching their full age. The children of James B. Webb, except plaintiff George B. Webb, executed deed for such interest as they had in the lot to plaintiff Emma P. Webb, wife of George B. Webb, after the, death- of their father.</p> <p>Plaintiffs demand judgment for possession of the land, and damages for withholding, etc.</p> <p>Defendants, conceding that James B. Webb owned the lot, and that his title vested in his daughter, Mary, allege that, by virtue of the deed of B. T. Webb, commissioner, and the mesne conveyances, they are the owners thereof. They also rely uq>on the several statutes of limitation, etc.</p> <p>His Honor was of tbe opinion, first, that the deed executed by Mary Hay 28 June, 1881, referred to in paragraph seven of the complaint, did not vest a life estate in James B. Webb; second, that parol evidence was not admissible to contradict the averments in allegation seventh of the complaint. He expressed the opinion that plaintiffs were not entitled to recover, whereupon they excepted, submitted to judgment of nonsuit, and appealed.</p>

Civil actioN, beard on appeal from a court of a justice of the peace, before Oouncill, J., and a-jury, at September Term, 1906, of the Superior Court of RobesoN County. The plaintiff sued to recover the value of the contents of a trunk by him delivered to the defendant. It was in evidence that the plaintiff, who was a merchant, packed the trunk with certain wearing apparel, and also placed therein certain •jewelry.

Actio-N for recovery of a penalty, under Revisal, sec. 2632, beard by Jones, J., at Spring Term, 1907, of tbe Superior Court of Wayne County. From a judgment for plaintiff defendant appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court.

Civil actioN to recover damages, for personal injuries, tried at November Term, 1906, of LeNoie Superior Court, before J ones, J., and a jury. Tbe Court submitted the following issues: 1. Was tbe plaintiff, William Allen, injured by tbe negligence of tbe defendant ? 2. Did tbe plaintiff, William Allen, contribute to bis injury by bis own negligence ? 3.

<p>Civil aotioN to recover damages for fraud and deceit, tried before Biggs, J., and a jury, at March Term, 1907, of the Superior Court of MautiN County.</p> <p>There was evidence tending to show that, on 15 November, 1899, plaintiff contracted to sell to defendant company that portion of the pine, cypress and'poplar timber on a tract of land belonging to plaintiff and known as the Harmon-Modlin land, which was situated on the south side of Cooper Swamp, “as far back as the muck and mire” comes, for the sum of $60; that plaintiff was an ignorant man, being unable to read or write, and that, on 18 November following, the defendant company, by false and fraudulent representations as to its contents, and making plaintiff believe that it was in compliance with the contract, induced plaintiff to execute a deed conveying to defendant company a much larger amount of the timber on the said tract than was included in the terms of the contract; that defendant afterwards sold the timber to the Dennis-Simmons Lumber Company, and conveyed same to that company by deed, in the exact terms of the said deed to defendant, and, by reason of the fraud and deceit so practiced on plaintiff, he was damaged to the amount of $1,000.</p> <p>The action to recover damages for said wrong was commenced on 3 April, 1906, and the fraud practiced on plaintiff by defendant and the sale to the Dennis-Simmons Lumber Company were not discovered until December, 1905. The deed to defendant company was registered 9 January, 1900, and that to the Dennis-Simmons Company was registered 24 February, 1902, and no timber has yet been cut-by either company. Defendant company denied the fraud, claimed that the deed, in effect, only conveyed the lumber embraced under the terms of the contract, and that no injury bad been wrought to plaintiff, and pleaded the statute of limitations. The jury rendered a verdict as follows:</p> <p>“1. Did defendant procure the execution of the deed of date 18 November, 1899, by false and fraudulent representation, as alleged in the complaint ?” Ans. “Yes.”</p> <p>“2. What damage, if any, has the plaintiff sustained in respect to the highland timber?” Ans. “Two hundred and fifty dollars, with interest from 18 November, 1899.”</p> <p>“3. What damages, if any, has the plaintiff sustained in respect to the swamp and ravine timber ?” Ans. “Forty dollars, with interest from 18 November, 1899.”</p> <p>“4. Is the plaintiff’s cause of action barred by the statute of limitations?” Ans. “No.”</p> <p>There was judgment for plaintiff, and defendant excepted and appealed.</p>

Motioh to set aside judgment, beard before Jones, J., and a jury, at April Term, 1907, of the Superior Court of WayNe County. The judgment was set aside and order made restoring defendant to possession of the real estate from which he had been ousted, and plaintiff excepted and appealed.

Civil action for tlie recovery of penalty before a justice of the peace, and heard on appeal to the Superior Court of BeRtie County, at Spring Term, 1907, before Lyon, J., and a jury. The following evidence was submitted: Fill of lading, duly signed by defendant company, for carload of lumber to be shipped by plaintiff, T. W. Watson., at Cedar Landing, Bertie County, N. C. 1.

Civil actioh, tried before Peebles, J., and a jury, at November Term, 1907, of the Superior Court of HarNett County. The facts, as shown by the pleadings, admissions and verdict, are: E. E. Young held a note against one B. E. Hamilton, secured by a mortgage on land in Harnett County, for $1,256, dated 7 March, 1896, subject to certain endorsed credits.

<p>I. Nonsuit — Evidence—Safe Appliance — Fellow-servant Act.</p> <p>A refusal to nonsuit upon evidence that'plaintiff was injured in consequence of using a defective band car which he had theretofore repeatedly reported to his employer as defective, and had been promised another, is proper by reason of the fellow-servant act (Revisal, sec. 2646) and independently thereof.</p> <p>2. Contributory Negligence — Causal Connection — Instructions.</p> <p>When there is no causal connection between the act relied upon as constituting contributory negligence and the act which caused the injury, a prayer for special instruction based upon the former was properly refused.</p> <p>3. Same — Instructions—Proximate Cause.</p> <p>A prayer for special instructions as to contributory negligence which omits the doctrine of proximate cause is insufficient.</p> <p>4. Same.</p> <p>Plaintiff was in charge of a hand ear of the defendant railroad company in the course of his employment, standing up and helping his men to run it. The car, while plaintiff was looking back at an approaching train, six miles away, flew the track, owing to a defect in its running gear, previously reported by him, and caused the injury. It does not clearly appear whether or not the car was taken from the track twenty minutes before the train passed, as required by defendant’s rules: Held, that defendant’s prayer for instruction that, upon these facts, eliminating the question of proximate cause, there was contributory negligence, was properly refused.</p> <p>5. Power of Court — Discretion—Excessive Damages — Appeal and Error.</p> <p>It is discretionary with the trial Judge to set aside a verdict • for excessive damages, and his acts thereupon are not reviewable on appeal. Wallace v. Railroad, 104 N. C., 452; Ruffin v. Railroad, 142 N. C., 129, cited and approved as to a charge to the jury upon the question of damages.</p> <p>Walker, J., dissenting.</p>

Civil actioN to recover possession of land, tried before Webb, J., and a jury, at April Term, 1907, of the Superior Court of RobesoN County. At the conclusion of plaintiff’s -evidence, upon motion of defendant, his Honor nonsuited the plaintiff, who appealed.

Civil actioN, beard before Webb, upon the pleadings and statement of counsel, at March Term, 1907, of the Superior Court of Bbustswick County. • The Court was of the opinion that the plaintiff was not entitled to recover, and dismissed the action. Plaintiff appealed.

Civil actioN, beard on return to restraining order, before Jones, J., at October Term, 1906, of tbe Superior Court of New ITaNOveb County.

Civil actioN, tried before Long, J., and a jury, at April Term, 1907, of tbe Superior Court of New ILaNOVER County. From judgment for plaintiff defendant appealed. Tbe facts sufficiently appear in tbe opinion of tbe Court.

Civil actioN, tried before Webb, J., and a jury, at April Term, 1907, of the Superior Court of Cum:berlaND County. On 29 May, 1890, tbe Enterprise Land and Improvement Company was incorporated, pursuant to tbe general law of tbe State.

<p>1. Contracts, Executory — Part Payment — Nonperformance—Consideration — Recovery.</p> <p>Plaintiff and defendant entered into an executory contract. Plaintiff paid defendant a certain sum of money and delivered a horse in part payment thereunder. Without fault on plaintiff’s part, the contract was never executed, and there was an entire failure of performance by the defendant: Held, in an action to recover for money had and received to plaintiff’s use, the plaintiff is entitled to recover, upon an implied promise to pay, the amount of money he had so paid, and the value of the horse, yet unsold, as for conversion.</p> <p>2. Statute of Limitations — Nonsuit—Counterclaim in Former Action.</p> <p>The bar of the statute of limitations is not.repelled by reason of a former suit brought by the defendant against the plaintiff, in which, after a long lapse of time, the then plaintiff took a non-suit without filing complaint, upon the assumption of the present plaintiff, then the defendant, that he could therein have set out 'as a counterclaim the subject-matter of the present action'.</p> <p>3. Same — Pleadings, Parol Evidence of — Nonsuit—Statute of Limitations.</p> <p>Parol evidence is incompetent to prove that a complaint in a former action between the same parties which was never filed, and in which action judgment of nonsuit was taken, would have alleged subject-matter to which the present plaintiff, then defendant, could have set up as a counterclaim the subject-matter of the present action, and thereby repel the bar of the statute of limitations.</p>

Civil actiow, tried before Gouncill, J., at February Term, 1907, of tbe Superior Court of ANSON County. This is a special proceeding, instituted in tbe Superior Court of Anson County, wherein tbe petitioner, L. IT. Gilmore, seeks to have dower allotted to her in tbe lands described in tbe petition. Defendants answered, and tbe cause came on for bearing before tbe Clerk, and, by appeal, to tbe Judge presiding.

Civil ACTION, tried before Oouncill, Jand a jury, at March Term, 1907, of the Superior Court of Eobeson County. Erom a judgment for plaintiff defendant Monroe appealed. The facts sufficiently appear in the opinion of the Court.

<p>PbtitioN by executors that they be allowed to resign, beard on appeal from tbe Clerk, before Jones, J., at August Term, 1907, of tbe Superior Court of Robeson County.</p> <p>Tbe petitioners, having qualified as executors of tbe last will and testament of E. K. Proctor, deceased, proceeded to collect tbe assets and pay tbe debts of tbeir testator, and, having in tbeir possession quite an amount of property, real and personal, to be managed and applied under tbe provisions of tbe will, filed tbeir petition before tbe Clerk of tbe Court that they be allowed to resiga their office in favor of a son of the testator, now grown, who is ready and willing to act as their successor, and is capable of discharging the duties of the office. The widow and children and heirs at law of the testator were made parties defendant, and a guardian ad litem for the infants duly appointed. On the hearing, the Clerk, having found the allegations of the petition to be true, held as follows: “Upon the foregoing facts the Court is of opinion that, as a matter of law, it has no power to permit the petitioners to resign as executors and trustees of the estate of E. K. Proctor, Jr., and that the Court has no power to appoint James D. Proctor as administrator de bonis non’’ etc.; and thereupon adjudged that the prayer of the petitioners be refused.</p> <p>On appeal the Judge reversed the ruling of the Clerk and directed that the Clerk proceed in accordance with such ruling, and defendants excepted and appealed.</p>

Civil actioh, tried before Peebles; and a jury, at May Term, 1907, of the Superior Court of Mooke County. This action was brought by the plaintiff to recover of the defendant $898.95 upon an alleged contract, by which the plaintiff agreed to sell to the defendant a certain quantity of steel in bars at the aforesaid price.

<p>State’s Lands — Entry—Registration—Enabling Act — -Grants.</p> <p>Tlie registration of a grant of land from the State is not necessary to give it validity for the purpose of title. Chapter 40, Acts of 1893, provided that grants AA'hich had theretofore been issued, but not registered within the time required by law, might at any time be registered within two years after 1 January, 1894, “notwithstanding the fact that such specified time had already expired, and all such grants heretofore registered after the expiration of such specified time shall be taken as if they had been registered within such specified time”; therefore, a grant issued prior to the said enactment, but registered at a time when there was no proAdsion therefor, is made valid by the provisions of said act as against a subsequent grant duly registered, the latter having been issued and registered at a time Avhen the grant first issued could have been registered under the law.</p>

Civil actior for recovery of damages for injury sustained by plaintiff while at work in defendant’s mill, heard before Oouncill, J., and a jury, at March Term, 1901, of the Superior Court of ScotlaNd County.

ActioN to foreclose a mortgage deed, dated 17 March, 1903, executed by John 0. Hill and wife, Caroline, to plaintiff, conveying two tracts of land, one containing 87 acres and the other 105 acres, heard by Justice, J., at October Term, 1906, of the Superior Court of ANSON County. From the judgment dismissing the action plaintiff appealed.

<p>Civil actioN, tried before Justice, J., and a jury, at March Term, 1901, of the Superior Court of Dueham County, and appealed by the defendant J. W. Smith.</p> <p>On 16 July, 1906, Joab Burch and L. R. Burch executed a note, of which the following is a copy:</p> <p>$1,000.00. Dueham, N. C., July 16, 1906.</p> <p>Que hundred and twenty days after date we promise to pay to the order of The Citizens National Bank of Durham, at Durham, N. 0., one thousand and 00-100 dollars. Negotiable and payable at The Citizens National Bank of Durham, at Durham, N. 0., for value received, etc.</p> <p>' (Signed) Joab Buech,</p> <p>L. E. Bueoh.</p> <p>Across the back of this note is written the words “J. W. Smith, surety.”</p> <p>The Court submitted these issues:</p> <p>1. Are the defendants, Mollie F. Burch, administratrix of Joab Burch, L. E. Burch and J. W. Smith, indebted to the plaintiff in the sum of $1,000 and interest, as alleged in the complaint ? Answer: Yes.</p> <p>2. Is the estate of Joab Burch insolvent? Answer: Yes.</p> <p>3. Is L. E. Burch a surety on the note sued upon_? Answer: Yes.</p> <p>4. Did defendant J. W. Smith know, at the time he endorsed the note, that L. E. Burch was surety? Answer: No.</p> <p>From the judgment rendered, declaring him a cosurety with L. E. Burch, the defendant Smith appealed.</p>

Civil action, beard by Ward, J., at February Term, 1907, of tbe Superior Court of Uuileoed County. This is an action brought by the plaintiff to recover 'a sum of money belonging to plaintiff and deposited by its agent, Summers, to his individual credit, in defendant bank. Summers procured a cashier’s check, drawn by the cashier of defendant bank in Summers’ favor$ and endorsed it to the defendant Fuller. Plaintiff enjoined the payment of the check to Fuller.

Civil actioN, tried before Jones, J., and a jury, at February Term, 1907, of the Superior Court of HaRNett County.

Civil, ACTION, tried before Jones, J., and a jury, at January Term, 1907, of the Superior Court of Wayne County. Erom judgment for defendants the plaintiffs appealed. The pleadings and admissions disclose this case: Spiars Smith died seized of a tract of land which descended to his five children, one of whom is the feme defendant, and another II. C. Smith. The land was partitioned and a lot of 70 acres, described by metes and bounds, allotted to feme defendant.

<p>1. Rehearing — Second Rehearing, when Permissible — Practice.</p> <p>A second rehearing in the Supreme Court is only permissible when, on the first rehearing, the Court has reversed or materially changed the original opinion that was sought to be reheard.</p> <p>2. Same — Motion to Correct Opinion.</p> <p>It appearing to the Supreme Court that what purported to be a petition for rehearing was in effect a motion to correct and modify its former judgment, the Court ordered that time be given to both parties for oral argument and filing printed briefs at a specified time, with notice of the order.</p>

<p>Appeal and Error — Motion to Correct Opinion — Res Judicata.</p> <p>When matters on appeal from the Superior Court have been passed upon by the Supreme Court, this Court, upon motion to re-examine the entire” record and modify the decree, has no power to amend or modify the final decree after its opinion has been certified down.</p>

Civil actioN, tried before Peebles, J., and a jury, at May Term, 190?, of the Superior Court of ANSON County. Erom' judgment for plaintiffs defendant excepted and appealed.

<p>Civil actioN, brought by plaintiff for tbe specific performance of a contract and agreement for tbe sale and purchase of a tract of land in Eranldin County, .fully described in said contract, against defendants, W. P. Leonard and wife, JL E. Leonard. The action was heard before Qoóke, Jand a jury, at October Term, 1906, of FbaNKLIN Superior Court.</p> <p>The pleadings are set out in the record, and in its complaint plaintiff alleged the execution of the contract for conveyance of the land, tender of deed within the time prescribed by the contract, drawn in accordance with its terms, and tender also of the contract price. The feme defendant alone answered, and admitted all the allegations of the complaint except the binding execution of the contract, .alleging that she signed the contract believing it to be for sale of timber instead of the fee to the land, and denying that she acknowledged its execution, as required by law. Plaintiff, tendering the deed and purchase money into court, renewed its demand for the specific performance of the contract.</p> <p>From judgment denying the prayer for specific performance the plaintiff appealed.</p>

Civil actioN, tried before Peebles, J., and a jury, at October Term, 1906, of the Superior Court of MeckleNbueg-County. Plaintiff moved for judgment upon the facts alleged in the complaint .and admitted in the answer. Motion overruled, and'plaintiff appealed.

Civil action; appeal by plaintiff from an order entered by Biggs, resident Judge, at chambers, in Duei-iaM County, on C July, 1907, quashing an order, or subpoena, made by Justice, J., at chambers in Greensboro, requiring the defendants and the president and secretary of the corporations defendant to testify and produce documents before a commissioner named in the order.

Civil aotioN, tried before Justice, J., and a jury, at April Term, 1907, of tbe Superior’Court of GbaNVILLE Coiinty. This is an action for the recovery of the amount of a policy of insurance on the life of Eranlc L. Taylor, issued by defendant company, payable to plaintiff.

AotioN to recover penalty for failure to furnish cars as provided by Kule 9 of the Corporation Commission, tried before Webbj J., and a jury, at August Term, 1907, of the Superior Court of Chatham County.

<p>Civil actioN to recover a penalty, under Rule 9 of the Corporation Commission, for failure to furnish a car, tried before Webb, J., at August Term, 1907, of the Superior Court of Chatham County.</p> <p>Erom the judgment rendered the defendant appealed.</p>

This actioh was beard by Qouncill, Jat July Term,-1907, of tbe Superior Court of GeaNville, County, upon complaint and demurrer. From tbe judgment overruling tbe demurrer defendant appealed.

CeimiNal action, tried at March Term, 1907, of Pasquo-tank Superior Court, before W. B. Allen, J., and a jury. The indictment charged the felonious kidnapping, on 15 February, 1905, of one Kenneth Beasley, a boy child eight years of age. The jury rendered a verdict of guilty. Erom the judgment of the Superior Court the defendant appealed.

INDICTMENT for unlawful sale of spirituous liquors in Pender County, same being prohibition territory, heard before Long, J., and a jury, at March Term, 1907, of the Superior Court of Pendee County. Solicitor Jones, tbe alleged vendee of the liquor, testified for the State .as follows: “On Wednesday or Thursday I gave defendant fifty cents to send for some liquor, and four cents to pay express. I gave him the fifty-four cents the morning he sent off the order.

INDICTMENT for tbe sale of spirituous liquor in prohibited territory, tried before Neal, J., and a jury, at June Term, 1901, of tbe Superior Court of ObaveN County. There was a verdict of guilty. Erom tbe judgment rendered defendant appealed.

<p>1. Indictment — -Sufficiency—Sale of Liquor — Person and Persons Unknown — Prohibited Territory — General Verdict.</p> <p>While, under an indictment for unlawfully selling spirituous liquor in prohibited territory, the name of the person to whom the sale was made should have been given, to the end that the defendant should have had reasonable opportunity to prepare his defense and, on conviction, may be protected from a second prosecution for the same conduct, yet, when two counts on the bill of indictment allege “an unlawful sale to person or persons to jurors unknown,” it is sufficient to support the general verdict of guilty, though coupled with a third count which may be defective.</p> <p>2. Same — Evidence—Certificate an Official Record — Revisal, secs. 1616-1617.</p> <p>Upon the trial under an indictment for unlawfully selling spirituous liquor in prohibited territory, it is competent as evidence to introduce a writing, under the hand and seal of the Collector of Internal Revenue, showing the current list of taxpayers for such sale covering the time in question, including the name of the defendant as a “retail malt liquor dealer,” the date of payment of tax and issue of certificate, in accordance with the amendment of the Revised Statutes of the United States, see. 3240, ch. 3, making the matter thus certified an official record, and, as such, it is competent evidence by express provisions of Revisal, secs. 1616-1617.</p> <p>3. Same — Trial for Crime — Certificate of Public Records — Confront Accusers — Constitutional Rights.</p> <p>While the Constitution gives to the accused the right to confront his accusers, such does not apply when the facts, from their very nature, can only be proved by a duly authenticated copy of a record. When the entries constitute official records, and a copy and its admission as evidence are expressly provided by statute, the rules of the Department of Internal Revenue making it impossible that oral testimony speaking to the facts recited should be obtained, the copies thus provided for are competent as evidence and are exceptions to the constitutional provisions.</p> <p>4. Same — -Rules of Evidence — Legislature—Constitutional Powers.</p> <p>Revisal, see. 2060, making the possession of, or issuance to any person, a license to sell spirituous liquors, etc., prima facie evidence of guilt, is a constitutional and valid exercise of the power of the Legislature to change the rule of evidence and make certain facts prima facie evidence of guilt, when the same are relevant to the inquiry and tend to prove the fact in issue.</p> <p>5. Same- — -Excessive Punishment.</p> <p>A sentence of two years’ imprisonment in the county jail is not excessive when the defendant has, in deliberate violation of law and with the evident purpose to persist in it, sold spirituous liquors in prohibited territory.</p>

INDICTMENT for unlawfully selling spirituous liquors, beard before Neal, J., at February Term,. 1907, of tbe Superior Court of Obavbn County. Defendant was convicted and sentenced, and appealed to tbe Supreme Court.

<p>1. Indians ■ — Compulsory Attendance at Government Indian School— Constitutional Law.</p> <p>Tbe Cherokee Indians are citizens of tbis State, and chapter 213, Laws of 1905, compelling, under certain conditions, tbe attendance of their children at the Government Indian School, is not repugnant to Article I, section 15, of the Constitution of North Carolina.</p> <p>2. Indians — School Districts — Particular Localities — Constitutional Law.</p> <p>The Legislature can meet the needs of one county, district or locality without making the same act apply to the whole State. And chapter 213, Laws of 1905, constituting “all within the boundary known as the ‘Qualla boundary’ of the Cherokee Indian lands” a special school district, is not repugnant to Article I, section 15, of the Constitution of North Carolina.</p> <p>3. Indians — Class Legislation — Discrimination—Constitutional Law.</p> <p>'Chapter 213, Laws of 1905, is not discriminative against the Indians, applying alike to all Indians in the special school district. (Article XIV, sec. 2, Constitution of North Carolina).</p> <p>4. Same.</p> <p>Chapter 213, Laws of 1905, compelling the Indians within the “Qualla boundary,” especially created a school district, to send their children, between the ages of seven and seventeen, to the Government Indian School at Cherokee, for nine months, under certain conditions, providing that the act shall not apply to children within said boundary attending other schools for a like period of time, is constitutional and valid. (Article IX, see. 2, Constitution of North Carolina).</p> <p>Hoke, J., concurs in result. Connob, J., dissenting. Walkeb, J., concurs in dissenting opinion.</p>

<p>Principal and Surety — Appearance Bond — Failure to Produce Principal — Excuse.</p> <p>Tbe liability .of a surety upon an appearance bond is a continuing one until discharged by renewal of bond or production and surrender of principal. He is not released by the principal being drunk and under arrest when his case was called in court and continued, and by the principal haying since become a fugitive from justice under charge of a different offense.</p>

INDICTMENT for taking part in lynching, beard on plea of .amnesty before Peebles, J., at July Special Term,-1901, of the Superior Court- of Union County.

<p>1. Indictment — Feloniously.—Sufficiency—Power of Legislature— Constitutional Law.</p> <p>While it has been held that, in indictments for felonies, the word “feloniously” must appear as descriptive of the offense, the Legislature had the right to modify old forms of bills of indictment or to establish new ones, provided the form established is sufficient to apprise the defendant with reasonable certainty of the nature of the offense of which he stands charged.</p> <p>2. Same.</p> <p>Revisal, sec. 3247, establishing a form for an indictment for perjury, that A B did unlawfully commit perjury, giving in addition the court where the trial was had, the title of the cause, the statement alleged to be false, with proper averments as to scienter, is a valid exercise of such power, and is in accord with our Bill of Rights, which requires that the defendant be informed of the accusation against him.</p> <p>3. Same.</p> <p>An indictment is sufficient when charging the defendant with unlawfully committing perjury upon the trial of a specified action before a certain justice of the peace, at a certain time and place, by falsely asserting on oath, the same being material to the inquiry when made, that he did not turn over to a certain person named his account and statement of rent due him, etc., knowing the said statement to be false, against the form of the statute, etc.</p>

<p>CRIMINAL ACTION, tried before Ferguson, J., and a jury, in the Superior Court of Eorsytii County.</p>

<p>OeiMINal aotioN, tried before Justice, J., and a jury, at September Term, 1906, of the Superior Court of Anson County.</p> <p>This is an indictment for injuring and removing a fence surrounding a yard, garden and cultivated field, under Re-visal, sec. SbYS. When the evidence was closed, the Court instructed the jury to return a verdict of guilty.</p> <p>The defendant contended that the fence obstructed West Street (extended), in the town of Polkton, while the State insisted that thefiand surrounded by the fence had not been dedicated to the public for the purpose of being used as a street, and to these respective contentions the testimony was addressed. There was evidence tending to show, as we think, that the property was originally owned by L. L. Polk, who extended West Street as at first dedicated or laid ont by him and accepted by the town, and then sold lots — at least two— on the extended portion of the street. The defendant testified as follows: “Mr. Briley lives in my house, which is situated in the town of Polkton. The residence is situated on the Sturdivant lot, which is one square acre. There was a street in front of my house when I bought it, twenty-five or thirty years ago. Elms had been set out as shade trees along this road, which were eight or ten years old at the time. The street was opened at that time 75 or 100 yards below my house. The fence constructed by Dr. Smith ran straight across the space opened up for the street, and then ran down the space with my line for some distance and across this space again. The road had been used up to the house. It had been cut out for some distance below, but had never been used. There was a clear space, 40 or 50 feet wide, opened along my eastern line to the Austin line, now the Beaehum line. All of this property was owned by L. L. Polk when I bought the Sturdivant lot and when the Sturdivant lot was bought from me, and also the second lot that I bought from L. L. Polk. Large trees had been cut out and this space opened up for a street, and has now grown up in bushes. I set out shade trees along the space which had been opened for this street eighteen or twenty- years ago. The shade trees are there now — some of them 8 or 10 inches in diameter, or larger. When I bought my property this open space and the street in front of my house were called West Street (extended), or the extension of West Street. I had no ingress to my property below this fence, except along this avenue which had been opened.” There was also evidence, that the defendant, as town marshal, removed the fence as an obstruction to the street, under an order from the proper authorities of the town, which was incorporated by Private Acts of 1874-’75, cli. 158. Notice of ten days was given to the prosecutor, L. 0. Smith, to remove the fence before the defendant tore it down. A map of the premises was introduced, which shows the extension of West Street and a lot or lots fronting upon it. There was other evidence supporting the defendant’s contention, and also evidence contradicting it and sustaining the theory of the State. In view of the charge of the Oourt, it is not necessary to state it. There was- a verdict of guilty, and judgment was entered thereon. Defendant excepted and appealed.</p>

CRIMINAL action for murder, tried before Moore, J., and a jury, at December Term, 1906, of the Superior Court of Gtuilrord County. The defendant was indicted for and convicted of killing bis wife, Lula Jones. The exceptions were mainly directed to tbe evidence and the charge of the Court upon the question whether the killing was done with deliberation and premeditation, so as to constitute murder in the first degree, and to the instruction as to murder in the second degree. .

<p>CRIMINAR action for seduction, tried before Long, J., and a jury, at January Term, 1907, of tbe Superior Court of Pende» County.</p> <p>From judgment of conviction defendant appealed.</p>

<p>Quo Warranto — Public Administrator — City Recorder — Public Officer — Constitutional Law.</p> <p>A public oflice is ail agency for the State, and the person whose duty it is to perform the agency is a public officer. Therefore, the public administrator is not a holder of a public office within the constitutional prohibition, and an action in the nature of quo warranto will not lie against a person for the reason of his holding the office of recorder of a city and the position of public administrator at the same time.</p>

The defendant was arraigned in tbe Superior Court of MecKXENbueg County, September Term, 1907, charged with the illegal sale of liquor, and pleaded guilty; Ferguson, J., presiding. The Court refused to tax certain costs claimed by W. M. Smith, recorder and ex officio justice of the peace for the city of Charlotte. Said Smith excepted and appealed.

CRIMINAL action, tried before Moore, J„ and a jury, at May Term, 1907, of tbe Superior Court of Rowan County. The defendant was indicted for a secret assault and was convicted of an assault and battery. The testimony was as follows: George Kluttz testified: “The defendant is a negro. I live in East Spencer, with my father, and he and I are engaged in running a store and meat market. On 27 April, 1907, about 10:30 P. M., I was shot in the leg.

CRIMINAL action, tried before Ferguson, Jand a jury, at June Term, 1907, of tbe Superior Court of Forsyth County.

INDICTMENT for murder, tried at July Term, 1907, of the Superior Court of Catawba County, before Ward, J., and a jury. The defendant was convicted of murder in the second degree. Erom the judgment and sentence he appealed.

INDICTMENT for murder, tried before Councill, J., and a jury, at August Term, 1901, of the Superior Court of Durham County. The prisoner was convicted of murder in the first degree for the killing of his wife, Lizzie Guthrie, by means of choking or strangulation, under a bill of indictment in the proper statutory form. From the judgment of the Court sentencing him to death defendant appealed.

<p>1. Constitutional Law — Trials—Reasonable Opportunity — Appeal and Error.</p> <p>While it is a violation of defendant’s constitutional rights to force him, in a crimiual action, into a trial with such undue haste as to deprive him of the ability to prepare and concert his defense, such is not available to him when it appears from the record on appeal that every reasonable opportunity was afforded him.</p> <p>2. Power of Court — Courts—Term—Extension of Time.</p> <p>The trial Judge has the power to extend the time beyond that limited for the term by statute when such is necessary to develop all the facts in the case then being tried.</p> <p>3. Foreign Defendants — Civil Action — State Courts — Criminal Actions — Estoppel.</p> <p>Foreign defendants cannot prevent the prosecution of criminal proceedings against them in the State courts by setting up proceedings in a suit of a civil nature they have instituted in the Federal court.</p> <p>4. Federal Courts — Equity-—Jurisdiction—Injunction—Criminal Action.</p> <p>The jurisdiction of courts of equity is limited to the protection of rights of property, and does not extend to interference with the prosecution or punishment of crimes. A Federal court of equity cannot in any manner, by injunction or otherwise, stay the trial of a criminal action in the State court for the violation of the State’s laws.</p> <p>5. Same — Constitutional Rights — United States Supreme Court — Writ of Error.</p> <p>It is in violation of "the sovereign rights of the State for a Circuit Judge of the Federal Courts, by injunction or otherwise, to interfere with the State in the trial of offenders against the State laws in her own courts. Such offenders can only set up such rights, privileges or immunities as they may claim under the Constitution and laws of the United States upon the trial in the State court, and go direct, by writ of error, to the Supreme Court of the United States from the Supreme Court of the State, should the last-named court deny such rights.</p> <p>0. Constitutional Law — Suit Against State — Officers—Real Party in Interest.</p> <p>In an action brought in the Federal Court against the State Corporation Commission and the Attorney-General and his assistant, when it appears that the statute under which the defendant is being tried in the State court is self-executing, and that the State is the real party in interest, and the officers are only directed and required to prosecute in the name of the State any crime committed in violation of the act, an .injunction against such officers, proceeding as directed, is a suit against the State, and, as such, is in violation of the Eleventh Amendment of the Constitution of the United States.</p> <p>7. Railroads — Carriers — Penalty Statutes — Principal and Agent — Separate Offense.</p> <p>When an act of the Legislature prohibits a common carrier from charging more than 2% cents per mile for transporting passengers, and in a different section provides that the carrier violating the act shall be liable in a civil action to the party aggrieved to a penalty of $500 for each violation, and that the agent violating the act shall be guilty of a misdemeanor, prescribing the punishment, it is discriminative as to the violation by the carrier and the agent, creating a separate offense and punishment for each.</p> <p>S. Same — Carriers — Penalty Statutes — Penalty Prescribed — Additional Penalty.</p> <p>When an offense is created by a statute not existing at common law, and the penalty for its violation is prescribed by the same statute, the particular remedy thus prescribed must alone be pursued, for the mention of the particular remedy makes the latter exclusive.13 Hence, when the statute makes the carrying of pas* sengers at a greater charge than the fare therein specified unlawful, and a particular penalty is prescribed for its violation, it was error in the court below’ to impose a fine upon the carrier violating the act, as for a misdemeanor.</p> <p>9. Same — Accessory Before the Fact.</p> <p>When a statute creates an offense not existing at common law, and imposes a separate and distinct punishment upon the carrier and its agent for violating it, the carrier cannot be held further liable as an accessory before the fact to the act of the agent violating the provision of the statute.</p> <p>10. Same — Corporation—Principal and Agent.</p> <p>A corporation can only act through its agent; and when a legislative enactment forbids an act to be done, and provides a penalty for the guilty corporation,' and makes the agent liable criminally, the corporation cannot be held liable as an accessory before the fact to the act of the agent.</p> <p>11. Statute — Interpretation—Decisions of the Supreme Court.</p> <p>The law as declared in a decision of the State Supreme Court is presumed to be known to and in contemplation of the State Legislature in enacting a statute, and the enactment will be construed with reference to the decision. •</p> <p>12. Federal Court — Civil Action — State Court — Criminal Action — Evidence — Record—Constitutional Law. '</p> <p>When a Federal court has -no jurisdiction to enjoin a criminal proceeding in a State court, the record in an equity suit pending in the Federal court in which the injunction is alleged to have been issued, and introduced in evidence on the trial of a criminal action in the State court, will not be considered as a defense, though involving rights claimed under the Constitution of the United States.</p> <p>BbowN, J., concurring, arguendo; Clark, C. J., dissenting, arguendo.</p>

CRIMINAL action, tried before Peebles, J., and a jury, at September Term, 1907, of the Superior Court of McDowell County. Er'om conviction and judgment defendants appealed. The facts sufficiently appear in the opinion of the Court.

<p>1. Murder — Evidence—Premeditation—Question for Jury.</p> <p>Tbe deceased, while on tbe train with L., had a difficulty with him and struck him. L. continued to curse the deceased, and the prisoner appeared to be intimately associated with L., to sympathize with him, and had evidently prepared to take his part,' having pulled out his pistol, shifted it from one pocket to another to have it “more handy,” and gone out on a platform to a station where the train stopped, looked at the ears and brandished his pistol. Thereafter, when he fired the fatal shot, he reached his arm over the shoulder of another person and snapped his pistol several times before it fired: Held, there was sufficient evidence of premeditation and deliberation to sustain a verdict of guilty of murder in the first degree.</p> <p>2. Same — Instructions—Evidence—Revenge.</p> <p>A prayer for special instructions embodying in part a correct proposition as to the findings of the jury on the question of murder, but also susceptible to the construction that, if the prisoner fired the fatal shot for revenge for the treatment his companion had received, it would only be murder in the second degree, is erroneous.</p>

CiumiNal action, under ail indictment for murder, tried before Guión, J., and a jury, at Spring Term, 1907, of tbe Superior Court of Pole County. From judgment defendant appealed.

<p>INDICTMENT for running freight train on Sunday, tried at August Term', 1907, of Franklin Superior Court, before Neal, J., and a jury.</p> <p>Verdict of guilty. Defendant appealed.</p>

CRIMINAL action for cruelty to animals, . tried before Guión, J., at August Term, 1907, of the Superior Court- of TRANSYLVANIA County. Upon a special verdict the Court adjudged the defendant not guilty, and the State appealed. The facts sufficiently appear in the opinion of the Court.

CRIMINAL action, tried before Webb, J., and a jury, at August Term, 1901, of the Superior Court of Moore County. Tbe defendant was charged with breaking and entering tbe storehouse of W. M. Rogers & Co., and, upon conviction, appealed. The facts sufficiently appear in the opinion of the Court.

INdictmeNt for seduction, tried before Moore, J., and a jury, at November Term, 1905, of Columbus Superior Court. Verdict of guilty. Judgment, and tbe defendant excepted and appealed.