Volume 146 — North Carolina Reports

Civil actioN, tried before Moore, J., and a jury, at February Term, 1907, of tbe Superior Court of Mooke Oounty. Tbis was au action for breach of covenant of seizin. The facts, in regard to which there is no controversy, are as follows : The tract described in the deeds and in the complaint as the “Russell Gold Mine,” containing 356 acres, was, prior to 5 May, 1902, the property of Mrs. Elizabeth Eames, the wife of plaintiff.

<p>Civil action, tried before Ferguson, J., and a jury, at March Term, 1907, of the Superior Court of EoRSyti-i County.</p> <p>Tbis is an action brought to recover the amount of $257.35 and interest, alleged to be due by a note given by the defendant to the plaintiff, as agent, for a policy in the Security Life and Annuity Company for the sum of $5,000. At the time of the execution of the note the parties entered into a collateral written agreement as a part of their contract, to the effect that the defendant should have one month after the date of the note to determine whether he would take the policy, and if he decided not to accept it, then the note to be void.</p> <p>The Court submitted to the jury certain issues, which, with the answers thereto, are as follows:</p> <p>“1. Did the defendant execute the note described in the complaint?” Answer: “Yes.”</p> <p>• “2. At the time of the execution of said note, did the plaintiff execute' the agreement set out in the answer ?” AnsAver: “Yes.”</p> <p>“3. Did the defendant, within one month from the execution of the note and agreement, notify the plaintiff that he would not accept the policy of insurance, and offer to return the same and demand a return of the note ?” Answer: “Yes.”</p> <p>“4. What amount, if any, is due from the defendant to the plaintiff?” Answer: “Nothing.”</p> <p>The plaintiff excepted to the submission of the first three issues, and insisted that the fourth issue was sufficient to cover the matters in controversy.</p> <p>Upon the verdict the Court rendered a judgment for the defendant, and the plaintiff appealed.</p>

Civil action to recover for personal injuries received by tbe plaintiff, tried at August (Special) Term, 1907, of Ala-MANCE Superior Court, before O. II. Allen, J., and a jury. Verdict and judgment were bad for tbe plaintiff. Tbe Court submitted tbe usual issues of negligence, contributory negligence, and damage, all of wbicb were answered for tbe plaintiff. Erom tbe judgment rendered tbe defendant appealed.

<p>1. Deeds and Conveyances — Estates Conveyed — Undivided Interests — Burden of Proof.</p> <p>The father conveyed to his son and daughter a one-half undivided interest each in certain lands. The son died, and his interest descended to the daughter, the defendant. The defendant conveyed a one-half undivided interest in the lands to her father in fee, and at the same time conveyed the other half interest for life, without specification as to which. The father conveyed his entire interest to Ms second wife and their child, the present plaintiffs. The interest of the son was sold by his administrator to make assets, and a partition was had. The father being dead and the daughter in possession of her original interest, plaintiff sues in ejectment, claiming this interest as that conveyed to their grantor' in fee, which defendant denies: Held, the burden of proof is upon plaintiffs, and, having failed to show which of defendant’s deeds to their grantor conveyed the fee, they cannot recover.</p> <p>2. Same — Estoppel by Judgment — Pleadings.</p> <p>When the plaintiffs allege their title by a certain specified deed, they cannot set up an estoppel by judgment in a different action, wherein they and defendant were parties defendant, where their rights inter sese were not put in issue by appropriate pleadings, and which, also, was not pleaded in the present action.</p>

Issue of devisavit vel non, heard by Moore, J., at April Term, 1907, of the Superior Court of MoNtgomeey County. By ag'reement, the Court found the facts. From the judgment rendered H. T. Baldwin, one of the propounders, appealed. Finding of facts: 1. That the propounders, H. T. Baldwin and J. IT.

<p>Justice of the Peace — Appeal and Error — Failure to Docket — Motion to Dismiss.</p> <p>An appeal from the court of a justice of the peace in a civil action should be docketed by the subsequent term of the Superior Court for the trial of criminal cases. When it appears that the justice of the peace was paid for transcript of appeal, made it out the day of the trial and handed it to the Clerk of the Superior Court, but the appellant neither tendered nor paid the Clerk his fees nor requested that it be docketed, a motion to dismiss will be granted upon failure to docket the appeal.</p>

<p>Railroads — Crossings—Warnings—Negligence—Contributory Negligence.</p> <p>When it appears that plaintiff’s intestate was killed by the engine of the lessee of the defendant company while it was backing, on a dark night, over a crossing, without light, signals or any other warning, in a thickly settled community, a clear case of negligence is made out against the defendant, and, without other evidence, the question of contributory negligence does not arise.</p> <p>(The rule upon the issue of damages in Mendenhall v. Railroad, 123 N. C., 278, approved).</p> <p>Clark, C. J., concurring.</p>

Civil ACTION to recover damages for publication of a libel, tried before Moore, J., and a jury, at April Term, 1907, of YadeiN Superior Court.

Civil actiON, tried before Peebles, J., and a jury, at November Term, 1906, of tbe Superior Court of Harnett County. From judgment for plaintiff defendant appealed. Tbe facts sufficiently appear in tbe opinion of tbe Court.

Civil actioN, tried before Moore, J., and a jury, at April Term, 1907, of the Superior Court of Montgomery County.

Civil actioN, tried before Justice, Jand a jury, at July Term, 1907, of the Superior Court of EaNdolph County. This action was brought to recover damages for injuries to the plaintiff by defendant’s negligence. The plaintiff had taken passage on defendant’s train from Greensboro to Ash-boro, on 23 July, 1906.

PLAINTIFFS’ APPEAL. Action to recover for an overcharge on freight bill, and penalty for not returning same within the time required by law, tried on appeal from a justice’s court before Oouncill, J., and a jury, at August Term, 1907, of the Superior Court of Oe-aNGe County. The following appears in the record as statement of case on appeal: This action was tried before the Hon. W. B. Oouncill and a jury, at August Term of Orange County Superior Court.

<p>DEFENDANT’S APPEAL.</p> <p>Action tried on appeal from the court of a justice of the peace, before Gouncill, and a jury, at August Term, 1907, of the Superior Court of Obange County.</p> <p>The demand was for the amount of an overcharge paid by plaintiffs on a shipment from Efland, in North Carolina, to Lexington; N. 0., and for a penalty for failure to adjust same, imposed by section 2644, Revisal 1905.</p> <p>There was evidence on the part of plaintiffs tending to establish the claim and formal demand therefor, as required by the statute.</p> <p>The Judge charged the jury as follows: “That, if they should find from the evidence that the plaintiffs had paid an overcharge of $7.96, as alleged by plaintiffs, and that plaintiffs had filed claim, as alleged, on the 20th day of September, 1906, accompanied with paid freight receipt and bill of lading, with the freight claim agent of the defendant company, and the same was not refunded within sixty days after the filing of said claim, then the plaintiffs would be entitled to recover $100 as penalty for such failure to settle the demand, it being admitted that more than sixty days had lapsed since the claim was filed.”</p> <p>On tbe testimony and under the charge, the jury rendered the following verdict: “Is defendant indebted to plaintiffs, and if so, in what amount?” Answer: “Yes — first, by way of overcharge, $7.96; second, by way of penalty, $100.”</p> <p>Defendant, by exception, duly noted, objected to the validity of the judgment, and appealed, assigning for error: That the statute imposing the penalty is in violation "of section 1 of the Fourteenth Amendment to the National Constitution, and denies to the defendant the equal protection of the law.</p>

<p>1. Guarantor of Payment.</p> <p>Plaintiff, bolding a valid account, past due, against a corporation, of which defendant was president, placed it in the hands of an attorney for collection. The defendant wrote, protesting against such course, and the plaintiff replied that, if defendant would endorse notes for the account against the corporation, he would withdraw the claim immediately. Thereupon, defendant wrote, saying: “Will you hold up this account until July 10th inst.? If so, I will guarantee that it will be paid on that date.” Plaintiff immediately agreed to delay: Seld, that the defendant’s agreement to pay the debt of the corporation was a personal one and absolute, upon default of the principal after the agreed time, and that it was a guarantee of payment and not of collection.</p> <p>2. Same — Contracts, Written — Parol Evidence.</p> <p>When, from the entire correspondence, it conclusively appears that the defendant personally guaranteed the payment of the debt of a corporation, of which he was president, he may not testify as to what he intended, so -as to contradict or alter the clear import of the terms expressed in the correspondence.</p>

<p>Landlord and Tenant — Lease—Betterments—Promise of Landlord to Pay.</p> <p>If it can be done without injury to the freehold, a tenant has the right to remove all betterments affixed by him thereto, if done before the expiration of the lease; and the promise of the landlord to pay for them, made during the continuance of the lease and the possession of the tenant thereunder, is enforcible and not nudum paclum.</p>

Civil actioN, tried oil appeal from a court of a justice of the peace before Webb, J., and a jury, at August Term, 1907, of the Superior Court of Crati-iax County. This action ivas to recover a penalty for unreasonable delay in shipment of a carload of wood from Merry Oaks, N. C., to Raleigh, contrary to provisions of section 2632, Revisal 1905.

<p>1. Deeds and Conveyances — Timber Contracts — Time Limited — Interpretation of Contract.</p> <p>Wben, under a contract to convey all tbe timber of specified dimensions upon certain described lands, it is stipulated that tbe bargainor, “bis heirs and assigns, shall have four years to cut, haul and remove said timber from tbe lands, and, if a longer time is desired to remove tbe timber, right is hereby granted, upon tbe payment of' eight per cent, upon tbe purchase price for tbe time it talses after tbe expiration of tbe four years herein granted,” etc., be or those claiming under him should at least have begun tbe cutting and removal of tbe timber within tbe four-years period, as, by interpretation of tbe contract, tbe extension of time was given in tbe event tbe period therein specified should be found insufficient for tbe purpose.</p> <p>2. Same — Timber Contracts — Time Limited — Injunction.</p> <p>"When it appears that the bargainee, or the plaintiff claiming under him, has slept upon his rights to remove, under a contract to convey, the timber upon certain described lands within the specified time, and that within such period he has not commenced to so remove the timber, it is proper to dissolve plaintiff’s restraining order upon the hearing, it being apparent that he will eventually fail in his suit.</p>

<p>Deeds and Conveyances — Feme Coverts — Privy Examination — Evidence^ — Set Aside — Notice to Grantee.</p> <p>In an action to invalidate a deed to lands because, in fact, the privy examination of the fame covert, the owner and plaintiff, had not been taken, though expressed to have been taken, as required in the certificate of the justice of the peace, the burden is upon the plaintiff, by clear, cogent and convincing proof, to show that her examination had not been taken at all. When, under a proper charge thereon from the Judge, the jury has found that such examination was not taken, the verdict will stand, though the grantee may not have been fixed with notice.</p>

Civil actioN, tried on appeal from a justice’s court before Moore_, J., and a jury, at March Term, 1907, of the Superior Court of EaNDOLph County.

ActioN to recover penalty imposed by Revisal, sec. 2632, for a failure to transport freight 'within a reasonable time, tried before Ferguson, J., and a jury, at the Summer Term, 1907, of the Superior Court of Cleveland County. Judgment for plaintiff. Defendant noted exceptions and appealed.

ActioN for penalty imposed by section 2632, Revisal, for failure to transport freight within reasonable time, tried before Ferguson, J., and a jury, at the August Term, 1907, of the Superior Court of Cleveland County. At the conclusion of the entire evidence defendant requested the Court to instruct the jury that plaintiffs were not entitled to recover, and to the refusal to do so excepted. Defendant noted exceptions to instructions given the jury. Judgment for plaintiffs.

Civil action to recover damages for unlawfully trespassing upon and cutting timber on plaintiff’s land and to enjoin further cutting. The cause was heard upon a statement of facts agreed by his Honor, Judge Lyon, at November Term, 1906, of Halifax Superior Court, and judgment was rendered by him in favor of the plaintiff. Defendant appealed.

Civil actiost, tried before Ferguson, -J., and a jury, at July Term, 1907, of the Superior Court of MecKleNbueg-County. This action was brought to recover the sum of $1,274.02, being the balance of an .account alleged to be due by Dowd & King, of which firm the defendant is a member, to the plaintiff, for money advanced and goods sold and delivered.

Civil actioN, beard, on motion to dissolve restraining order, by Ward, J., at chambers in Newton, on 9 July, 1907. This action is brought by plaintiff, the Caldwell Land and Lumber Co., against defendant, Sheriff of Caldwell County, for the purpose of enjoining the collection of certain taxes assessed against its property.

Civil aotioot, tried before Councill, and a jury, at June Term, 1901, of tbe Superior Court of Wilkes County.

<p>1. Employer and Employee — Safe Place to Work — Safe Appliances.</p> <p>The usual measure of duty imposed upon the employer requires him to furnish to his employee a reasonably safe place to work and such reasonably safe appliances as are known, approved and in general use.</p> <p>2. Same — Safety Appliances — Duty of Employer — Questions for Jury.</p> <p>When it is admitted or the jury find that standard safety appliances are known, approved and in general use in respect to the particular character of machinery furnished, or upon which plaintiff is employed, the law imposes the duty upon the employer to furnish such appliances, this being the standard of duty. When the evidence in this respect is conflicting, or the inference to be drawn from it doubtful, the question should be submitted to the jury, under proper instructions in regard to the standard of duty.</p>

Civil actioN, tried on appeal from the court of a justice of the peace before Allen, J., and a jury, at July, 1907, Special Term of the Superior Court of Alamance County. There was evidence tending to show that plaintiff had sold to one M. J. Blue a package of harness worth $24.50, to be delivered at Efland, N. 0., the stipulation as to delivery at Efland being a part of the contract of sale.

<p>1. Deeds and Conveyances — Warranty, Defective — Consideration, Entire — Title Paramount — Measure of Damages — Instructions.</p> <p>Action for breach of warranty in sale and conveyance by defendant to plaintiff of several tracts of land for an entire consideration, and the title to one of the tracts was defective: Held — 1. The rule for .estimating plaintiff’s damages is the proportion that the value of the land covered by title paramount bears to the whole, estimated on the basis of the actual consideration, paid. 2. If a good title has been procured by the vendee, the basis for the correct apportionment would be the amount reasonably paid to buy in the outstanding -title, not exceeding the purchase money. S. It was error in the court to charge the jury to make the apportionment on the basis of the actual value of the land, when there was evidence tending to show that the actual value exceeded the amount of the consideration.</p> <p>2. Attachment — Insane Persons — Support of Family, Provisions Therefor — Creditors.</p> <p>When it appears at the time of final entry appropriating the funds that the defendant is insane, a resident of another State and being taken care of there; that his wife and child are residents of North Carolina, for whose support the defendant had otherwise provided, and that defendant’s creditors have attached certain of his property here for the payment of this debt to them, the property attached will not be set aside for the support of the wife and child.</p>

AcjtioN for divorce a vinculo, tried before Councill, J., and a jury, at September Term, 1907, of tbe Superior Court of AlamaNCe County. Plaintiff alleged and offered evidence tending to prove one act of illicit intercourse on tbe part of tbe husband, defendant.

Civil actioN, tried before Justice, Jand a jury, at April Term, 1907, of the Superior Court of GeaNVILLe, County. This action was brought to recover a stock of goods. It appears that the defendant had given to the plaintiff, on 16 March, 1900, a mortgage on the stock of goods then in his store to secure the price of goods bought by him.

<p>1. Principal and Agent — Respondeat Superior — Employer and Employee — Safe Appliances — Help—Negligence—Question for Jury.</p> <p>In an action to recover damages for injuries sustained while in defendant’s employment in directing the tearing down of a cloth press in defendant’s mill, the evidence showed that plaintiff was directed by defendant’s superintendent to move heavy parts of the press, weighing some five thousand pounds, to another part of the mill, the superintendent being present and overlooking the work when it was being done; plaintiff told the superintendent that the appliances being used were too .small and that he wanted heavy ones, and the superintendent said go ahead and use those furnished, as they were all right; that a part of the appliances were out of repair, which was known to the superintendent; that the plaintiff was experienced in this kind of work, had been ' working for defendant for some years, and had theretofore used heavier appliances for work of this character; that plaintiff complained of having insufficient help, and the superintendent replied that he knew the help was worthless: Held, (1) the defendant was responsible for the acts of its superintendent; (2) the defendant failed in its legal duty to furnish safe appliances for the work and adequate help to do it; (3) the evidence was sufficient to go to the jury upon the question as to whether the negligent failure to furnish sufficient appliances and help was the cause of defendant’s injury. {Stewart v. Qarpet Go., 138 N. C., 60, cited and distinguished).</p> <p>2. Evidence — Negligence—Safe Appliances — Explanation of Operation.</p> <p>It was competent for the plaintiff, experienced in the work, to explain the use of the machinery he had requested for the work he was employed to do, and was refused, as a connection between the negligence and the injury he had received, owing to the unsafe character of the appliances he was instructed to use.</p> <p>3. Evidence, Expert — Matter of Fact — Causal Connection- — Question for Jury.</p> <p>It is competent for the jury to consider injury to plaintiff’s eyesight as an element of damage, a causal connection between the injury received and the subsequent paralysis, upon testimony of plaintiff and without expert evidence: “The muscles and tendons were torn loose in my right side, and my arm was affected — • paralyzed, to a certain extent. It is still dead and numb. It also affected my ejres; they are crossed and I see two objects. I could see perfectly good before I sustained the injury; since then and to the present time I cannot see at all hardly.”</p>

CoNTR.0VERST without action, regularly submitted, and determined, before Ward, Jat May Term, 1907, of the Superior Court of GastoN County.

Civil actioN, tried before Ferguson, J., and a jury, at July Term, 1907, of tbe Superior Court of MeckleNbueg-County, and brought by tbe plaintiff to recover damages from tbe defendant on account of tbe wrongful establishment and maintenance of an elevated sewer over and through his lands. Judgment for plaintiff. Defendant excepted and appealed.

Summary PROCEEDINGS in ejectment, tried on appeal from a justice of tlae peace, before Ward, J., and a jury, at August Term, 1907, of tlie Superior Court of Wilices County. On the issues submitted, there was a verdict for plaintiff, judgment on verdict, and defendant esceptecl and appealed, assigning for error that the court should have dismissed the action for want of jurisdiction in the justice to try the cause.

<p>1. Wills — Probate—Solemn Form — Unreasonable Delay.</p> <p>The probate of a will in common form is valid until set aside, and tbe right to require probate in solemn form may be forfeited, either by acquiescence or unreasonable delay, now seven years, under chapter S62, Laws of 1907.</p> <p>2. Same.</p> <p>An action to probate a will in solemn form will be dismissed when the petitioner had knowledge of the probate of the will in common form and the qualification of the executors for forty years, of their removal from the State many years thereafter, of the appointment of an administrator c. t. a., and of his proceedings for final account and settlement, to which she was a party.</p> <p>3. Same — Limitation of Actions — Construction.</p> <p>While chapter 862, Laws of 1907, fixes seven years after probate of a will in common form as a limitation, and permits seven years after its ratification as to wills theretofore proven, it will not apply to revive a cause of action theretofore barred.</p> <p>4. Same — Limitation of Actions, Repeal of.</p> <p>Chapter 78, Laws of 1898, repealing, as to married women, sections 148 and 163 of The Code (1883) and suspending the running of the statute of limitations, has no application to a caveat to a will 'theretofore barred and for which there was no such statute prior to 1907.</p> <p>5. Same — Feme Covert — Legal Excuse.</p> <p>The fact that the petitioner to probate a will in solemn form is now, and has at all times been a feme covert since the probate in common form, is no legal excuse for her unreasonable delay.</p>

Civil actioN, tried before Ward, J., and a jury, at March Term, 1907, of the Superior Court of MlcicleNbuRG County. The plaintiffs evidence, the material parts of which are of record, discloses this case: Thomas J. Holton died. 27 December, 1860, having first made and published his last will and testament, in which he made the following disposition of his estate: “Item 1.

Civil ACTION, tried before Ferguson, J., and a jury, at July Term, 1907, of tbe Superior Court of JVIeciclbNbuRG County. Judgment for plaintiff. Defendant appealed. Tbe facts sufficiently appear in tbe opinion of tbe Court.

<p>PROCEEDING under tbe entry laws (Revisa!, secs. 1707, 1708 and 1709), beard by Guión, Jat June Term, 1907, of tbe Superior Court of Burke County..</p> <p>Prom tbe judgment rendered tbe protestants, A. G. 01m-stead, Marlin E. Olmstead and E. L. Bartlett, appealed.</p>

Issue devisavit vel non, tried before Quion, J., and a jury, at June Term, 1907, of tbe Superior Court of Bubee County. Verdict and judgment for propounders, and appeal by caveators, wbo assigned for error: 1st. That bis Honor declined to allow tbe caveators to recall a witness, one Mr. Eeece, to testify on a matter as to wbicb be bad been already examined. 2d. That tbe Judge beld that there was no evidence tending to establish undue influence.

<p>Civil actioN, tried before Alim, J., at Spring Term, 1907, of the Superior Court of Dake County.</p> <p>It was admitted that the plaintiff was the owner and entitled to the possession of the net in controversy, unless the defendant had the right to seize the same under the provisions of section 2440, Revisal.</p> <p>It was also admitted that defendant was an assistant oyster commissioner, regularly appointed, and that, upon affidavit filed, and acting under instructions from the Oyster Commissioner, he seized said net and intended to sell the same.</p> <p>The defendant claimed that said net was being fished in waters prohibited by statute. The plaintiff admitted said net was set in the water and was being fished when seized, but denied that it was set in prohibited waters.</p> <p>Judgment for defendant. Plaintiff appealed.</p>

ActioN to recover damages for personal injury, tried before Gooke, J., and a jury, at March Term, 1907, of the Superior Court of BuNcombe County. The court submitted the usual issues of negligence, contributory negligence, and damages. The jury found for plaintiff on all issues. Erom the judgment rendered the defendant appealed.

Civil aotioN to enforce the specific performance of a contract, beard before Peebles, J'., at August Term, 190?, of the Superior Court of Euthekfokd County. The court rendered judgment upon the pleadings, from which the defendants appealed.

Civil actior iu ejectment, heard before 0. E. Allen, -J., and a jury, at November Term, 1906, of the Superior Court of TRaNsylvaNia County. Judgment for plaintiff. Defendants excepted and appealed. The facts sufficiently appear in the opinion.

Civil actioN, tried before Ward, and a jury, at May Term, 1901, of the Superior Court of GastoN County. Held: as a matter of law, that the Lineberger, Sample and Bissell lands did not pass with the Mountain Island land under the sale of 11 September, 1901; that only such easement passed as existed, by ponding water on the Bissell land, at the date of the deed from Hooper to the power company. Defendants excepted.

<p>1. Deeds and Conveyances — Calls—Beginning Point — Branch—Evidence.</p> <p>When the first call of a deed is given as “Beginning at a state on the south bank” of a named branch, and there was evidence tending to show that the branch had changed its bed eighteen feet since the date of the deed, and, also, that it had not changed at all, it is proper for the jury to consider the location of the branch as a means to locate the beginning point in connection with other evidence; and a prayer for instruction that in no aspect of the case can the jury consider the run or thread of the stream as it formerly existed, or as it now exists, was properly refused.</p> <p>2. Same — Calls—Beginning Point — Evidence—Map, Corroborative.</p> <p>When there was evidence that when the sale of the locus in quo was made there was a survey run for the boundaries set out in the, deed, and that the beginning stake was 170 feet from the angle in Depot Street; that, subsequently, where this stake was located the land had been filled in, and afterwards, in paving the street, a stake, apparently a surveyor’s stake, was unearthed, answering the location as testified to, and was at once noted down by the city engineer, who made a map and identified it on the trial, on which, at the time, he marked the location of the stake, the map was competent evidence to corroborate the testimony of the city engineer.</p> <p>3. Same — Calls—Beginning Point — Evidence—Calls Reversed.</p> <p>When one, at least, of the subsequent calls in a deed was identified, or the jury could properly so find, and the beginning pqint was the one sought to be established, it was error in the court below to instruct the jury that they could not locate the beginning corner by commencing at the identified call and running back the first two lines according to their courses and distances, the courses reversed, when such would tend to do so.</p>

Civil actiost, tried before Justice, J., and a jury, at June Term, 1907, of tbe Superior Court of GruiLKonn County. The facts sufficiently appear in the opinion of the Court. DEFENDANTS’ APPEAL IN SAME CASE.

Civil aotioN, beard upon facts agreed by Codice, J., at April Term, 1907, of tbe Superior Court of BuNCOMBE County. Tbe action began before a justice of tbe peace, and on appeal in tbe Superior Court tbe following facts were agreed: Tbe plaintiff company delivered to the defendant, at Ashe-ville, North Carolina, on 21 February, 1906, a plain, closed box for shipment to New Orleans, Louisiana.

Civil actioN, tried before Guión, J., and a jury, .at June Term, 1907, of the Superior Court of Buaios County. Action for damages for personal injury sustained by plaintiff while in the employment of defendant corporation. ■ Plaintiff, about sixteen years of age, while in the discharge of his duties as employee of defendant company, fell from a platform 6 feet wide, 14 feet long and about 18 feet from the ground.

Civil actioN, beard by Moore, J., at March Term, 1907, of the Superior Court of Ibedell County. Action for recovery for services rendered defendant’s intestate. The cause was referred, by consent, to Dorman Thompson, Esq., as referee, who found as facts that,'prior to 1886, the defendant’s intestate, Mrs. E. J. Wilson, was living with her daughter, Mrs. J. E. McLain, in Mooresville, N. 0.

Civil action, tried before Ferguson, Jand a jury, at September Term, 1907, of tbe Superior Court of Mecklen-burg County.' The plaintiff is a physician, and on the night he was injured he had started to the house of his patient, at No. 1006 Nortli Brevard Street, in the city of Charlotte.

Civil action, heard on petition and motion to remove the cause to the Federal Court, by Coolce, J., at April Term, 1901, of the Superior Court of Buncombe County.

Civil actioN, heard before Guión, J., at August Term, 1907, of the Superior Court of TbaNSylvaNia County. This is a controversy submitted without action.

Civil actioN, heard before Gouncill, Jat August Term, 1907, of the Superior Court of PeesoN County.

Civil actioN, heard by Jones, J., at chambers, RobesoN County, on 2 December, 1907. This is a controversy without action to test the validity of certain bonds issued by defendant for the purpose of building a courthouse in the county seat of said county. From the judgment rendered plaintiff and defendant .appealed. The facts sufficiently appear in the opinion of the Court.

Civil action, beard before Long, J., and a jury, 8 November, 1907, in G-uilfoRd County, and brought by plaintiff in behalf of himself and of all other taxpayers against the city of Greensboro to enjoin the city, its-officers and agents from issuing and selling certain bonds, amounting in the aggregate to $155,000, and from levying any tax to' pay any of suet indebtedness.

Civil actioN, beard, on exception to report of a referee, before Goolce, Jat March Term, 1907, of tbe Superior Court of BuNcombe County. There was a large number of exceptions to tbe report and to tbe rulings on questions of evidence by both parties, and on tbe bearing some of them were sustained, some overruled and others modified; and thereupon tbe court gave judgment that defendants go without day and recover costs, and plaintiffs appealed.

Civil agtioN, tried, on appeal from a justice’s court, before Guión, J., at May Term, 1907, of the Superior Court of HeN-dersoN County. A jury trial having been formally'waived, the facts were agreed upon, and it was made to appear that, in 1905, the defendants were the proprietors of the Imperial Hotel, where they were running a general public hotel business during the summer as a summer resort, under the firm name of Phillips & Sims.

Civil aotioN, tried before Moore, J., and a jury, at September Term, 1907, of the Superior Court of Eoesyth County. At the close of plaintiff’s evidence in chief, and again at the close of the entire evidence, there was a motion for nonsuit, under the statute. The latter motion was allowed by the court, and plaintiff excepted and appealed.

<p>1. Deeds and Conveyances — Probate in Another State Defective— Validating Statutes.</p> <p>When no vested rights are impaired, a deed dated in 1869 is not incompetent evidence upon the ground of a defective probate, showing the acknowledgment of the grantor and his wife, and her privy examination, taken before the Clerk of a certain County Court of Tennessee, with the seal of that court affixed thereto, apparently the seal of his office, the same being validated by Acts of 1883, ch. 129; Acts of 1885, ch. 11; The Code, see. 1262; Re-visal, sec. 1022.</p> <p>2. Same — Probate, Defective — Validating Statutes — Constitutional Law.</p> <p>The Legislature has the constitutional right to enact statutes -making valid deeds theretofore invalid by reason of defective probate, when no vested rights are impaired.</p>

Civil actioN, beard on a motion to show cause, etc., by Moore, J., on 6 August, 1907, at chambers in Asheville, BuNcombe County. Judgment for defendant. Plaintiff appealed. The facts sufficiently appear in the opinion.

Civil actioN, tried before Allen, Jand a jury, at November Term, 1906, of tbe Superior Court of TbaNSylvaNIa County.

Civil actioN, tried before O. H. Allen, J., at September Term, 1906, of tbe Superior Court of BuNoombe County. By consent, a jury trial was waived and tbe facts found by tbe Judge. Judgment for defendant. Plaintiffs appealed. Tbe facts sufficiently appear in tbe opinion.

Civil actios, tried before Guión, J., and a jury, at August Term, 1901, of the Superior Court of TbaNsylvahta County. The defendant, during the month of April, 1903, entered into an agreement with plaintiff, by the terms of which plaintiff was to find a purchaser for a large body of land belonging to defendant, at the price of $3.50 per acre.

<p>1. Contract — Specific Performance — -Fraud in Factum — Fraudulent Representations — Defenses.</p> <p>There is a distinction between the defense to an action to enforce specific performance of a contract, and to rescind and set it aside for fraud in the facUim or treaty. Hence, when the pleading and evidence show that the former defense is being made, it is error for the court below to restrict the issue to the second defense.</p> <p>2. Contract — Specific Performance — Fraudulent Representations— Intent.</p> <p>Evidence tending to show that the defendant was induced to make and execute a contract to convey land, the subject of the suit for specific performance, by the false representations of plaintiff that, as a part of the consideration therefor, he would transfer to defendant an option lie held on another lot of land which defendant desired, if he concluded not to buy it, when he had already concluded to buy it, is available as a defense.</p> <p>3. Same — Specific Performance — Defense—Consideration—Option— Promise.</p> <p>In an action to enforce specific performance of a contract to convey land the defendant may show by parol that the words and acts of plaintiff were such as to reasonably induce him to believe - that, as a part of the consideration for the contract, he would transfer to him an option he had on a different lot of land which he desired. Actual fraud is unnecessary to be shown.</p> <p>4. Actions — -Form, Legal and Equitable — Issues—Courts—Administration.</p> <p>The abolition, by the Constitution, of the distinction between actions at law and suits in equity does not destroy equitable rights and remedies; and the issues should be so framed as to clearly present the matters in controversy, so that, upon the verdict, the court, subject to review upon appeal, can apply equitable rules and principles.</p>

Civil actioN, tried before Guión, J., and a jury, at June Term, 1907, of tbe Superior Court of YaNcey County. Judgment for defendants. Plaintiffs appealed. Tbe facts sufficiently appear in tbe opinion.

Civil actioN, petition to remove cause to1 the Federal Court, heard by Ouion, J., at September Term, 1907, of the Superior Court of BuNCOMBE County.

Civil actioN, tried before Moore, J., at July (Special) Term, 1907, of tbe Superior Court of Haywood County. This action was instituted by plaintiff, a citizen and resident of Haywood County, against defendant for the recovery of a penalty. It originated in a justice’s court and was brought by appeal to the Superior Court.

Civil action, tried before Ward, J., and a jury, at Spring Term, 1907, of the Superior Court of Cleveland County. Action by plaintiff administrator for damages sustained by the death of his intestate, which, he avers, was caused by the negligence of the defendant corporation.

<p>Civil actioN, beard by O. H. Allen, J., upon tbe report of tbe referee therein, at Spring (April) Term, 1907, of tbe Superior Court of Cherokee County.</p> <p>Judgment for plaintiffs. Defendants appealed.</p> <p>Tbe facts sufficiently appear in tbe opinion.</p>

<p>1. Negligence — Cities—Sidewalks—Obstructions.</p> <p>Where an obstruction by the projection of steps to residences upon the sidewalk of a city is of a wrongful character, a city government can neither validate it by grant nor sanction it by acquiescence ; and, having the power, in the exercise of its ministerial functions, of summary abatement, the city is responsible to an individual who is injured by its existence, when the injured person is himself in the exercise of due care.</p> <p>2. Same — Cities—Sidewalks—Obstructions—Acquiescence.</p> <p>It is no defense to an action against a city for personal injury received without fault of plaintiff, occasioned by the improper projection of steps to residences upon the sidewalk, whereon plaintiff, on a dark, drizzly night, struck his foot and was injured, to attempt to show that such projection had been sanctioned by a long, continuous custom for thirty years.</p> <p>3. Same — Cities—Sidewalks—Obstructions—Knowledge.</p> <p>When a wrongful obstruction of a sidewalk of a city, by the projection of steps to residences along it, has been shown to exist for thirty years, the city is presumed to have knowledge thereof.</p> <p>4. Same — Cities—Sidewalks—Obstructions—Lights.</p> <p>Temporary obstructions or permanent conditions may be such, in the absence of light at a particular locality, as would import negligence; but, when the streets of a municipality are otherwise reasonably safe, neither the absence of lights nor defective lights is in itself negligence, but is only evidence on the principal question, whether at the time and place where an injury occurs the streets were in a reasonably safe condition.</p> <p>5. Same — Cities—Sidewalks—Obstructions—Duties—Instructions.</p> <p>When there was evidence to support it, it was error in the court below to refuse to instruct the jury that the city was not liable, absolutely, for the defects in its streets or sidewalks, and, therefore, the mere existence of such defects was not sufficient to constitute a cause of action. The city is not held to guarantee safety, but is only held to provide a reasonably safe way of travel, and the ground of liability to a private party for injury while passing over the sidewalks or streets is only for negligence or neglect, and the mere existence of an obstruction or defect is insufficient. To constitute negligence it must be shown that the authorities of the city had notice of the defect or obstruction and had the power to remedy the same, but failed to do so.</p> <p>(Fitzgerald v. Concord, 140 N. C., 110, cited and approved).</p>

MotioN to set aside judgment, tried before Gooke, J., at August (Special) Term, 1907, of tbe Superior Court of Swain County. Tbe motion was denied, and- defendants excepted and appealed.

Civil actiost, tried before Moore, J., and a jury, at February Term, 1907, of the Superior Court of Ro-waN County. The plaintiff sued to recover damages of defendant for the negligent killing of his intestate, who was an employee of defendant in the capacity of tool carrier in its machine shops at Spencer, N. C. Said intestate was a boy about sixteen years old, and worked for defendant, at night, in the capacity aforementioned.

ApplicatioN by plaintiff for writ of mandamus to compel defendant to issue him a license to sell spirituous liquors, etc., in tbe city of Asheville. Tbe writ was refused, and tbe plaintiff appealed. Tbe pertinent facts sufficiently appear in tbe opinion.

Civil actioN, tried before O. II. Allen, J., and a jury, at March Term, 1907, of the Superior Court of SwaiN County. Judgment for defendant. Plaintiff appealed. The facts sufficiently appear in the opinion.

Oivil actioN, tried at September Term, 1906, of the Superior Court of Teanstlvania County, before O. H. Allen, J and a jury, brought by the plaintiffs against the defendants to set aside, upon the ground of fraud, the decree of sale and orders entered in a special proceeding for partition of certain lands, in which the plaintiffs and the defendant R. M. Tuttle were tenants in common. The court submitted the following issues affecting the appellants : “1.

Civil aotioN, tried before 0. H. Allen, J., and a jury, at Ifall Term, 1907, of the Superior Court of CamdeN County. This is an action brought by plaintiff to recover damages for an alleged trespass on the lands described in the complaint. Plaintiff alleged title and possession at date of trespass. Defendants denied plaintiff’s title, and alleged ownership of the land, possession, etc. The jury found the issues for defendants.

<p>Courts — Wills—Jurisdiction—Equity—Adverse Interests.</p> <p>Tbe advisory jurisdiction of courts of equity does not extend to the mere construction of a will to ascertain the rights thereunder of devisees or legatees. Such is not sustained under Re-visal, 1589, when not brought by the plaintiff against some person claiming an adverse estate or interest.</p>

<p>Civil actioN, beard before W. B. Allen, J., at September Term, 1907, of the Superior Court of PasquotaNK County.</p> <p>By consent, the court passed upon the facts and law.</p> <p>Judgment for plaintiff. Defendant Underwood appealed.</p> <p>The admissions in the pleading's and recitals in the judgment disclose this case: Prior to 25 September, 1869, the Land and Lumber Company was chartered and organized, with William Underwood as its president. On the said 25 September, 1869, said William Underwood, together with Joseph Underwood, executed a deed containing the following language, material to a decision of this appeal: “This indenture, made and entered into by and between William Under-wood and Lorane J., his wife, and Joseph Underwood and Ann Ada, his wife, as parties of the first part, and the Land and Lumber Company of North Carolina, party of the second part: Witnesseth, that, whereas the said William and Joseph Un-derwood have at various times purchased, as agents for the said Land.and Lumber Company, certain real estate, which they wish to convey to said company: Now, therefore, for and in consideration of the premises, and the further consideration of ten dollars, * * * we, the parties of the first part, have given, granted, bargained and sold * * * unto him, the said William Underwood, president of the Land and Lumber Company of North Carolina, and his successors in office, the following tracts of land: * * * To have and to hold all the above-bounden land, * * * to him, tbe said William TJnderwood, president of the Land and Lumber Company of North Carolina, and his successors in office, to hold the same for the use and benefit of said company in fee simple, forever.” It is conceded that the land described in the deed is the same as that referred to in the complaint. The Land and Lumber Company ceased to do business about twenty-five years ago. William Underwood is dead, and the defendants are his heirs at law. The land in controversy is woodland, and no person was in the actual possession prior to 1900, when defendant Zimmerman went into possession pursuant to a tax deed. William Underwood acquired title under one Hinton. Plaintiff owns shares of stock in said corporation. There are no officers of said corporation in existence and no organization is maintained. Plaintiff avers that there are no debts outstanding. His Honor was of the opinion “that the deed of 25 September, 1869, is a declaration that the title to said land is held in trust for the Land and Lumber Company, making it the equitable owner thereof.” He rendered judgment, appointing a receiver of said company, directed said receiver to advertise for creditors and stockholders,-etc., and to report to the next term of the court, retaining the cause for further orders. Defendants excepted and appealed.</p>

Civil actioN, tried before 17. B. Allem,j and a jury, at Eall Term, 1907, of the Superior Court of Hebt-eokd County. On issues submitted, and verdict thereon, there was judgment for plaintiffs against defendant James S. Mitchell, and defendants excepted and appealed.

Civil actiow to recover damages for an injury received by plaintiff: in putting a belt on the driving wheel at defendants’ mill, tried at Spring Term, 1901, of tbe Superior Court of Wasi-iiNgtoN County, before W. R. Allen, J., and a jury. Tbe usual issues of negligence, contributory negligence and damage were submitted, wbicb were found against defendants. Erom tbe judgment rendered tbe defendants appealed.

Civil actioN, beard before Guión, and a jury, at February Term, 1907, of tbe Superior Court of ButhbRitokd County. During tbe trial tbe counsel for tbe parties agreed upon tbe facts, and judgment was entered tbereon for defendant. Plaintiff appealed. Tbe plaintiff brought tbis action to recover $2,000, tbe amount of an insurance policy issued by the defendant upon tbe life of ber intestate for ber benefit. Tbe policy contains tbe following provisions: “1.

Speoial PROCEEDING for partition, brought before the Clerk and transferred upon issues to the Superior Court of CurritucK County, and beard before O. H. Allen, J., and a jury, at Eall Term, 1901. Judgment for petitioners, and defendant appealed. The facts sufficiently appear in the opinion of the Court.

Civil actioN, tried before 0. II. Allen, J., and a jury, at Fall Term, 1907, of the Superior Court of Oi-iowan County. From judgment for defendants plaintiffs appealed. The facts sufficiently appear in the opinion of the Court.

Civil actioN, beard, and determined on case agreed, before O. H. Allen, J.3 at Eall Term, 1907, of the Superior Court of PerquimaNS County. There was judgment for plaintiffs, and defendants excepted and appealed.

AotioN for mandamus, beard by 0. II. Allen, J., at chambers in Washington, Beaufort County, November, 1907. The court found the facts and rendered judgment for plaintiff. Defendant appealed. The facts sufficiently appear in the opinion of the Court.

Civil actioN, beard before Ward, J., and a jury, at January Term, 1907, of tbe Superior Court of PasquotaNk County. Tbis action was brought for tbe purpose of recovering $3,155.84, being two-thirds of tbe amount collected by taxation ($4,733.76) in Pasquotank County for improving and keeping in repair tbe public roads of tbe county. Three issues were submitted to tbe jury, which, with tbe answers thereto, are as follows: “1.

<p>1. Conditional Sale — Chattel Mortgage — Form—Verbal Agreement.</p> <p>A chattel mortgage is a sale of personal property on condition, as security for the payment of a debt, is now (since 1792) effective between the parties when verbally made, requires no seal, writing or special form of- words, and the question is one of agreement between the parties.</p> <p>2. Same — Burden of Proof.</p> <p>The burden of proof, by the greater weight of evidence, is upon the party relying upon the establishment of a verbal chattel mortgage, when the effect is not to change or alter a written instrument.</p> <p>3. Same — Evidence—Questions for Jury.</p> <p>Evidence is sufficient to sustain the verdict of the jury upon whether a verbal chattel mortgage.had been given, which tends to show an agreement that until the mortgage contemplated was written the plaintiff should have a verbal mortgage on the property, and that he advanced credit on the strength thereof; that defendant afterwards promised that the papers would be executed and assured plaintiff that “everything would be all right.”</p> <p>4. Same — By One Partner — Partnership.</p> <p>One partner may give a verbal agreement, in effect a chattel mortgage, on partnership goods to secure a partnership debt.</p> <p>5. Same — Growing Crops — Between Parties — Revisal, 2052.</p> <p>Parties, as between themselves, may by contract constitute and deal with growing crops as personalty; hence, except as it may ■ affect creditors and third persons, a verbal mortgage on growing crops is valid between the parties when it does not extend for a second, or greater number of years. Revisal, 2052, relating to the priorities of agricultural liens has no application in the absence of claim for its especial priorities.</p> <p>6.'Purchasers for Value — Pre-existing Debts — Deeds and Conveyances — Registration.</p> <p>Holders of property to secure pre-existing debts are purchasers for value within the meaning of Revisal, 982, and it requires prior registration of other deeds of trust or mortgages to affect their interests as such.</p> <p>7. Uses and Trusts — Mortgages—Assignments.</p> <p>A deed of trust conveying practically all of grantor’s property to secure existing debts will be considered an assignment, subject to the regulations of the statutes addressed to that question, and this result will not be changed because some small portion of his property was omitted, or because the instrument was drawn in the form of a mortgage, having a defeasance clause.</p> <p>8. Assignments — Statutory Provisions — Compliance.</p> <p>An assignment for benefit of creditors is void unless the formalities of Revisal, sec. 967 et seq., are complied with as to filing schedules of preferred debts, or inventory of property, etc., and will be set aside at the suit of a creditor whose debt is not therein provided for.</p> <p>9. Statutes — Repealing Statute Repealed.</p> <p>The repeal of a statute repealing a former statute leaves the latter in force.</p>

Civil agtiow, appeal by plaintiff from an order dissolving a restraining order against tbe town of Eranklin, Macon County, beard by W. B. Allen, J., at chambers in Murphy, 13 August, 1906. The facts sufficiently appear in tbe opinion of tbe Court.

Civil actioN, tried before, Lyon, J., and a jury, at November Term, 1907, of the Superior Court of JoNES County. Erom judgment for defendant plaintiff appealed. The facts sufficiently appear in the opinion of the Court.

Civil actioN, beard by O. U. Allen, Jat Pali Term, 1901, of tbe Superior Court of Ci-iowaN County. This ease was submitted to tbe court upon tbe following case agreed: 1. On 13 March, 1891, J. H. Piland executed to J. II. Blount, trustee, a certain deed of trust, duly recorded on its day of date in Chowan County, on certain lands of said Piland, therein described, to secure the payment to M. II.

<p>1. Penalty Statutes — Revisal, sec. 420 — Venue.</p> <p>An action for tbe recovery of a statutory penalty must be brought in tbe county where the cause of action, or some part thereof, arose. Revisal, sec. 420.</p> <p>2. Courts — Judicial Notice — System of Railroads.</p> <p>The Court will take judicial notice of the location of an important system of railroads with reference to the counties of the State through which it passes.</p> <p>3. Venue — Wrong County — When Removed.</p> <p>When the venue of a suit is to the wrong county, it may be tried therein, unless the defendant, before the time of answering expires, demands in writing that trial be had in the proper county.</p> <p>4. Jurisdiction — Demurrer—Wrong Venue, How Taken Advantage of.</p> <p>While the question of jurisdiction can be raised by demurrer (Revisal, sec. 474), the question of venue is different, and cannot thus be taken advantage of.</p>

Civil ACTION to recover a tract of laud, tried at Chowak Superior Court, Pall Term, 1907, before 0. II. Allen, J., aud a jury. Prom a judgment of nonsuit the plaintiff appealed. On 16 April, 1868, Elisha J. Burk executed his will, devising all of his estate, real and personal, to his wife, Elizabeth, in fee, and died in 1889.

Civil aotioN, brought to cancel and rescind the sale or exchange of a certain lot and lands, tried before O. H. Allen, J., and a jury, at December Term, 1907, of the Superior Court of Beaufort County. The court submitted these issues: “1. Was the lot in Washington conveyed for the land in Bath Township upon condition that defendant erect on said land two dwellings and necessary outhouses, worth $550?” Answer: “Yes.” “2.

Civil acjtioN, brought by the plaintiffs, as citizens and taxpayers of the county of Pitt, to enjoin the issue of certain bonds, not exceeding $50,000, which defendants are about to issue, to aid in establishing a training school at or near the town of Greenville, in said county, in pursuance of an act of the General Assembly ratified 6 March, 1907. An application was made to his Honor, Judge Lyon, in the Superior Court of Pitt County, to enjoin the issuing of the bonds.

Civil actior, tried before Lyon, J., and a jury, at August Term, 1907, of tbe Superior Court of Pitt County. Tbe facts sufficiently appear in tbe opinion of tbe Court.

<p>Civil actioN, tried before Lyon, J., and a jury, at Pali Term, 1907, of the Superior Court of CeaveN County, to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant, at Dover, N. C., whereby the plaintiff lost an arm.</p> <p>The court submitted these issues:</p> <p>“1. AVas the plaintiff injured by the negligence of the defendant, as alleged in the complaint?” Answer: “Yes.”</p> <p>“2. Was the plaintiff guilty of contributory negligence ?” Answer: “No.”</p> <p>“3. What damage is plaintiff entitled to- recover?” Answer : “Two thousand dollars.”</p> <p>Erom the judgment rendered the defendant appealed.</p>

CRIMINAL action, tried before Lyon, J., and a jury, at July Term, 1907, of the Superior Court of McDowell County. The defendant was convicted of crime and sentenced by the court to confinement in the county j ail for a term of three years, “to be worked on the public roads of Marion Township, McDowell County.” The court further adjudged that the county pay the cost of said prosecution in full.

ObimiNal action for refusing to work tbe public roads, tried before 0. Ii. Allen, J., and a jury, at October Term, 1907, of tbe Superior Court of Beaufort County. Erom a verdict of guilty and tbe judgment rendered tbe defendant appealed.

<p>INDICTMENT for assault with intent to commit rape, tried before Lyon, J., and a jury, at September Term, 1907, of the Superior Court of CeaveN County.</p> <p>The defendant was convicted of an assault with intent to commit rape, and from the judgment imposed appealed.</p>

<p>INDictmeNX for embezzlement, heard by Lyon, J., at April Term, 1901, of tbe Superior Oourt of Pitt Oounty.</p> <p>Defendants were indicted for embezzlement, and moved to quash tbe indictment, upon tbe ground that tbe grand jury bad been improperly constituted. With reference to this matter, tbe Judge found tbe following facts:</p> <p>1. William McLawhorn was summoned as a juror for April Term, 1907, and bis name was returned to tbe court by tbe Sheriff as a juror, with thirty-five other names, making thirty-six.in all on tbe jury list. When tbe court convened, William McLawhorn was one of tbe first eighteen persons drawn and selected as grand jurors, and he served on tbe grand jury fox tbe term at which tbe bill of indictment was found against tbe defendants..</p> <p>2. Tbe name of William McLawhorn was not in the jury box when the commissioners of tbe county drew the jurors to serve at tbe April Term, and bis name was not, therefore, drawn from the jury box, but tbe name of Woodie McLawhorn was drawn by tbe commissioners as a juror to serve at tbe said term, and tbe Sheriff, confusing the two names, placed tbe name of William McLawhorn, instead of that of Woodie McLawhorn, on tbe jury list, and summoned William McLawhorn in tbe place of Woodie McLawhorn to serve as a juror, and tbe said William McLawhorn appeared in answer to tbe summons and served as a juror. Woodie McLawhorn, whose name was drawn from tbe jury box by the commissioners, was not summoned as a juror and did not serve.</p> <p>Upon, tbe facts so found by tbe court, tbe indictment was quashed. Tbe State excepted to tbe ruling of the- court, and appealed.</p>

<p>1. Burden of Proof — -Defenses — “Former Acquittal” — Identical Offense.</p> <p>The burden of proof is upon the defendant, under plea of former acquittal, to show that he had been formerly acquitted for the identical offense, in law and in fact.</p> <p>2. Power of Court — “Former Acquittal” — Collateral inquiry.</p> <p>The plea of. former acquittal is a collateral civil inquiry as to the former action of the court, and the verdict on such an issue may be set aside in the discretion of the court.</p> <p>3. Witnesses — Indictment—“Former Acquittal” — Civil Action — Criminal Action.</p> <p>The defendant, under plea of former acquittal of the offense charged in the bill of indictment, may become a witness in his own behalf, and may not be forced upon the stand as a witness in relation to the criminal charge.</p> <p>4. Witnesses — “Former Acquittal” — Evidence—Proof.</p> <p>The indictment and judgment in a former action, introduced in evidence under plea of former acquittal, are sufficient to show the nature of the offense charged therein, but the defendant must prove that the two charges are for the same offense.</p> <p>5. Indictment — Date of Offense — Immaterial Charge — Evidence.</p> <p>The date of the offense charged in the bill of indictment is immaterial, and is no evidence, upon a trial under a separate indictment, that defendant had been acquitted for the same offense.</p>

The three defendants were indicted for the murder of one • Jeff. Armstrong, and the cause was tried before Long, J., and a jury, at December Term, 1907, of the Superior Court of JohNStoN County. At the conclusion of the testimony, the defendant Bud Tillman prayed the court to instruct the jury that there was not sufficient evidence upon which a verdict of guilty could be based as to him. The prayer was declined, and defendant excepted.

CRIMINAL action, .tried before Long, J., and a jury, at February Term, 1908, of the Superior Court of Columbus County. From judgment of conviction defendants appealed. The facts sufficiently appear in the opinion of the Court.

CRIMINAL ACTION, heard upon motion to quash indictment, by Peebles, Jat August Term, 1907, of the Superior Court of Bueice County.

CeimiNal action, tried before Ferguson, J., and a jury, at February Term, 1908, of tbe Superior Court of Catawba County. This is an indictment for perjury, tbe bill being in tbe following words: “Tbe jurors for tbe State, upon tbeir oatb, present: That B. S. Cline, of Catawba County, did willfully, unlawfully and feloniously commit perjury upon tbe'trial of an action in a justice -of tbe peace’s court, before J. IT. McLelland, in Catawba County, wherein W. TI.

This was an indictment of defendant for tbe murder of Jim Pearce, tried before Ward, J., and a jury, at April Term, 1907, of tbe Superior Court of MeoiíleNbueg County.

<p>INDICTMENT against defendant for tbe murder of one D. Williams, tried before Peebles, Jand a jury, at October Term, 1907, of tbe Superior Court of RutheReoed County.</p> <p>Before tbe jury were selected, tbe Solicitor for tbe State announced tliat be would not ask for a conviction of murder in tbe first degree, but would insist on a conviction of murder in tbe second degree or manslaughter. After bearing tbe testimony, tbe court, among other things, charged tbe jury that, if they believed tbe evidence, they should find tbe defendant guilty of manslaughter at least; that, taking all tbe evidence in its most favorable light to the defendant, be would be guilty, of manslaughter. Tbe jury returned a verdict of guilty of manslaughter, and from judgment on tbe verdict tbe defendant appealed.</p>

This is a proceeding as for contempt, hgard by Peebles, J., at February Term, 1908, of the Superior Court of Eutheb-KORd County. Iiis Honor found the facts and adjudged the respondent guilty, and sentenced him to be imprisoned in the common jail of Eutherford County for thirty days, to be worked on the public roads. From the judgment of the court the defendant appealed.

CRIMINAL aotioN, beard by Moore, J., upon a motion to quash the bill of indictment, at March Term, 1908, of the Superior Court of Mecklenburg County, the motion having been continued thereto, by consent, from Spring Term, 1908, of the Superior Court of Gaston County.

OeimiNai. aotion, tried before Peebles, J., and a jury, at July-August Term, 1907, of the Superior Court of Buncombe County. Erom judgment defendant appealed. The facts sufficiently appear in the opinion of the Court. '

INDICTMENT for carrying concealed weapon, heard by Pee-bles, J., at February Term, 1908, of the Superior Court of Buncombe County.