Volume 91 — North Carolina Reports

<p>PetitioN of defendant for writ of certiorari, heard at October Term, 1884, of The Supreme Court.</p> <p>See same case, reported in 87 N. C., 168, and 90 N. C., 6.</p>

<p>New Trial not ordered, when — Judge of Superior Court going out -of. office.</p> <p>A new trial'will not be granted where it appears that the papers constituting the record of a case in the court below were carried off by the judge and mislaid, and the judge has gone out of office.The appellant should first make an effort to have the papers returned to the court below, for until the filing of a transcript of the record here, the application for a new trial cannot be entertained. (This ease does not fall within the provisions of section S50 of The Code or the rule laid down in the eases cited). •</p> <p>(Isler v. Haddock, 72 N. C., 119; Mason v. Osgood, lb. 120; Simon-ton v. Simonton, 80 N. C., 7; Jones v. Holmes, 83 N. C., 108; Shelton v. Shelton, 89 N. C., 185, cited and approved.)</p>

Civil Action tried at Special July Term, 1884, of Pas-quotank Superior Court, before Shepherd, J. The plaintiff oh January 28th, 1878, placed in the hands of William Martin, an attorney, and. the testator of the defendant, Elizabeth Martin, for collection a note under seal in the following form ; On or by the first day of January, 1877,1 promise to pay Isaac W. Morrisett, or bearer, eleven hundred and sixty dollars, a part of purchase money for real estate whereon Isaac W.…

<p>Ejectment — Presumption of Grant — Adverse Possession.</p> <p>1. Where plaintiff in ejectment relies upon' the presumption of a grant from the state arising from an adverse possession of thirty years, and introduces deeds which contain no metes and bounds or description by which the land can be located, and offers no evidence of known and visible boundaries; Held that he cannot recover.</p> <p>2. Thirty years adverse possession, which was formerly held to be a presumption of a grant, is now by statute made an absolute bar against the state. Put- in such case the plaintiff must show a privity between himself and those who preceded him in the possession, and also, that the possession was held up to known and visible boundaries.</p> <p>(Mtz Randolph v. Norman, N. 0. Term Kep., 127; Candler v. Luns-ford, 4 Dev. &Bat., 407; Mlwards v. Jarvis, 74 N. C., 315, cited and approved.)</p>

<p>Drummers — License to sell must be in their actual possession to relieve from Penalty.</p> <p>A drummer is not protected from the penalty denounced by statute against persons selling goods without license, unless he shall be in the actual possession of the license while doing business. Acts 1883, ch. 136, § 28. (In this case the license was mailed to defendant but not received by him at the time the sale was made).</p>

<p>Marriage License — Penalty against Register of Deeds for issuing same without compliance with the statute.</p> <p>1. A register of deeds is not permitted to issue a marriage license, where one of the parties is under eighteen years of age, until the consent in writing of the person under whose charge he or she is, shall he delivered to the register. The written consent is a condition precedent to its issue.</p> <p>2. Therefore where the register delivered a license complete in form to one with instructions not to give it to the parties until the mother’s consent in writing was given (which was necessary here), and it was never presented to the mother or her consent obtained, but the marriage ceremony was performed under it; Held that the register is liable to the penalty of $200 prescribed by section 1814 of The Code.</p>

Civil Action devisavit vel non tried at Fall Term, 1884, of Warren Superior Court, before Qudger, J. It was proved by six witnesses that the paper writing in controversy was in the handwriting of the decedent, J. Falcon Brown. W: B. Falcon, a witness for the propounder, testified that the book in which the paper writing was contained was kept by his uncle (the deceased) in his house, and had in it his accounts with his tenants.

Civil Action tried on appeal from a justice’s judgment, at Fall Term, 1883, of Edgecombe Superior Court, before Shepherd, J. Upon the facts stated in the opinion here, and no evidence of defendant’s negligence having been introduced, the court below held with the defendant, and gave judgment accordingly, from which the plaintiff appealed.

<p>Nero Promise — Statute of Limitations— Contract of Corporation— Verdict — Interest—Practice.</p> <p>1. A new promise must be unconditional and in writing, signed by the party, and to pay the •'mount of the original debt, in order to remove the bar of the statute and revive the contract. The. Code, §172. The exception to the judge’s charge in this case cannot be sustained.</p> <p>2. A contract made by an officer of a corporation and ratified by the corporation, becomes the contract of the latter.</p> <p>3. A verdict allowing “ interest to date” in a case where the proof is that the principal sum was due in April, 1876, is sufficiently definite as to the time for which the computation .is to be made.</p> <p>4. Suggestions of counsel as to what occurred on the trial will not be regarded. This court is confined to the consideration of the record.</p> <p>(Ward v. Herrin, 4-Jones, 23; Long v. Gfantley, 4 Dev. & Bat., 313; Brumble v. Brown, 71 N. C., 513; Whissenhunt v. Jones, 80 N. C., 348, cited and approved.)</p>

Civil Action, tried at Fall Term, 1883, of Edgecombe Superior Court, before Shepherd, J. The action was brought to recover the balance due on a bond of twenty-five thousand dollars, which the defendants, forty-eight in number, had executed to one John Barry and assigned by him to the plaintiff.

<p>Civil Action, tried at June Special Term, 1883, of Wake Superior Court, before Philips, J.</p> <p>The facts are stated in the opinion of this court. The Attorney-General filed a demurrer to the plaintiff’s complaint, which, upon the hearing of the case in the court below, was overruled, and the defendant appealed.</p>

<p>Civil Action, tried at Fall Term, 1884, of Wake Superior Court, before Gudger, J.</p> <p>This action was brought in the name ol the state on relation of the plaintiff administrator^ upon the official bond of the defendant, executed when he was clerk of the superior court. The case was heard upon exceptions to a referee’s report, and from the ruling and judgment of the court below the plaintiff appealed. The facts appear in the opinion here.</p>

OiviL ActiON, tried upon exceptions to a referee’s report, at Fall Term, 1884, of Wake Superior Court, before Cadger, J. The demand in the answer of one of the defendants was for a reference, &c., and the order for the same was made on motion of the plaintiff’s counsel. The defendants appealed from the judgment rendered in the court below.

The summons in this case was made returnable to fall term of 1877 of the superior court of Wake county. At that term the plaintiffs filed the complaint, but the defendants, first made parties defendant, did not file any answer at that term or afterwards. At spring term, 1878, the plaintiffs moved for leave to make additional parties defendant, naming them severally, and among them are the parties who moved to set aside the judgment presently to be mentioned.

Civil Action, tried at March Special Term, 1884, of Wake Superior Court, before Avery, J. Tliis action was brought to recover of the defendant as executrix of Mary A. Rogers, deceased, a legacy bequeathed to the plaintiff by the will of the testatrix. The case is sufficiently stated in the opinion. The plaintiff appealed from the judgment dismissing the action.

<p> Contract tu convey land must be registered-r-Evidence.. </p> <p>Contracts to convey land are not available in law and cannot be admitted in evidence in an action ior specific performance, until proved and registered. The Code, § 1245.</p> <p>(Edward's v. Thompson, 71 N. C., 177,; Mauney v. Crowell, 84 N. C., 314, cited.)</p>

Civil Action, commenced before a justice of tlie peace and tried on appeal at Fall Term, 1883, of Edgecoiibe Superior Court, before Shepherd, J. The defendant was constituted and became an agent of the plaintiff company in the prosecution of its business of life insurance, under and by virtue of a contract mutually entered into, and.in these words: Memorandum of an agreement between the North Carolina State Life Insurance Company of the one part, and Orren Williams, of…

Civil ActioN, tried at March Special Term, 1884, of Wake Superior Court, before Avery, J. The complaint alleges and the answer admits that, about the middle of October, in the year 1881, the plaintiff sold the defendant a certain machine for the generation of gas, at the list price of nine hundred and seventy-five dollars, subject to a discount or deduction of one-third of that sum, and on the terms that the defendant should have it on trial for ninety days, during which, if…

PETITION to rehear heard at October Term, 1884, of The Supreme Court. This petition was filed by the defendants who also submitted a motion for an order restraining the collection of the execution, heretofore issued, until the matters set forth in the petition are passed upon. See same case reported in 81 N. C. 208; 86 N. C., 190; 90 N. C., 569.

<p>Practice in Probate Court — When Court cannot take judicial notice of judgment — Pleading.</p> <p>1. During the pendency of a special proceeding against an executor for an account, it appeared that the will of the testator “was revoked and annulled ” by a decree of the probate court in another proceeding; Held, that the defendant executor must amend his answer by setting up such decree. The granting of the defendant’s motion to dismiss for want of jurisdiction was erroneous.</p> <p>2. The court in such ease cannot take judicial notice of a decree rendered by it in a separate and independent action,' but the party seeking advantage thereunder must plead it in a proper manner.</p> <p>(Rowland v. Thompson, 64 N. C., 714; King v. Kinsey, 71 N. C., 407; Wood v. Skinner, 79 N. C., 92, cited and approved.)</p>

Civil Action, heard at July Special Term, 1884, of Pas-quotank Superior Court, before Shepherd, J. This action is brought to compel the defendant administrator to render an account and make settlement of the same. It appears by the record that John Temple died intestate some time in the year 3860, leaving surviving him as his only heirs-at-law and next of kin the plaintiffs, William T. Temple and Delia Ann Temple, then infants of tender years.

Civil Action tried at Fall Term, 1884, of Jones Superior Court, before Shepherd, J. The defendant appealed, and upon call of the case in this court the plaintiff moved to dismiss the appeal for the reasons stated in the opinion here.

Specxax, PROCEEDING heard at July Special Terra, 1884, of Greene Superior Court, before MacRae, J. This was'a proceeding for sale of land for partition, commenced before the clerk and transferred to the superior court for the trial of issues raised by the pleadings.

Civil Action tried at Spring Term, 1884, of Johnston Superior Court, before Philips, J. This was an appeal from the court of a justice of the peace. The plaintiff brought the action to recover a bale of cotton from the defendant, and it was tried upon the following “ case agreed ” : John Cooper executed a chattel mortgage to the plaintiff Atkinson on the 10th of February, 1881, which was duly registered on the 18th day of the same month.

Petition to rehear heard at October Term, 1884, of The Supreme Court. This was a petition filed by the defendant to rehear a case in 'which judgment was rendered against him at February term, 1883. See report of case 88 N. C., 3151

Civil ActioN, tried at December Special Term, 1884, of of Moore Superior Court, before MacRae, J. The defendant appealed from the ruling and judgment of the court below.

Civil ActioN, tried at December Special Term, 1883, of Moore Superior Court, before MacRae, J. The case is stated in the opinion. The plaintiff appealed from the judgment of the court below.

<p>Landlord and Tenant — Lease by Tenant for life — Remainder-man — Constitutionality of Act — Agency.</p> <p>1. A lease of' land made by a tenant for life terminates at his death, ' but by statute the lease is continued to the end of the current lease-year that the tenant inay gather his crop.</p> <p>2. But, in such case, the remainderman is entitled to a part of the rent proportionate to thb part of the year elapsing after the termination of the life estate to the surrendering of possession to the remainderman. The Code, § 1749.</p> <p>3. The statute embraces a lease for a single year, although it provides in terms “for any lease for years.”</p> <p>4. The legislature has power to regulate the method of transfer of property from one to another and hence the act above mentioned is constitutional.</p> <p>5. Where an agency is denied or repudiated, no demand upon the agent is necessary before suit brought.</p> <p>((rfle v. Young, 1 Hay., 17; Poinderter v. Blaokbun), 1 Ired. l$q., 286, cited and approved.)</p>

<p>Civil Action for foreclosure of mortgage tried at Spring-Term, 1884, of Duplin Superior Court, before Shepherd, J.</p> <p>On November 2d, 1872, the plaintiff, at the request and for the accommodation of the firm of Frederick & Son, constituted of the defendant Norris Frederick and William C. Frederick, his son, executed his promissory note in the sum of five thousand dollars to said firm payable at thirty days, and the same having upon their endorsement been discounted at the bank, the proceeds were received and used in their business. On November 12 thereafter, the said William C. executed to the plaintiff a mortgage deed, conveying certain real estate of his own for the indemnity and security of the plaintiff against loss or damage by reason of his liability on said note, or on others which might be given in renewal of the said debt. Renewal notes were subsequently given until the indebtedness was reduced, in 1875, to one thousand dollars, and this sum the plaintiff testified was paid by himself, and that he had not been re-imbursed.</p> <p>In the year 1875, William C. Frederick died, leaving a will, in which he appoints his father, the said Norris, his executor, and gives him power to carry on the same business. In 1878, the plaintiff and Norris came to a settlement, which showed an indebtedness to the former, made up, as the plaintiff alleges, of acceptances, individual and for the firm, and including interest on the residuary firm debt, for the four years preceding, in the sum of $4,000, to secure which the defendant mortgaged the stock of goods on hand to the plaintiff who took the same into possession, and has realized therefrom the sum of $2,100, which he has appropriated, as he claims a right to do, to the personal indebtedness of said Norris as provided in the deed conveying the goods, leaving unpaid the $1,000 due from the firm.</p> <p>The testimony of the defendant Norris varies from that of the plaintiff, and his statement is that the stock of goods surrendered to the plaintiff were to be used in discharging the $1,000 debt, then in payment of a small debt due from Norris-on account of the firm business, and the residue to be returned to him. He further denies that he owed the alleged debt of $4,000, and says that the goods were conveyed to secure the plaintiff in advances that he might thereafter make to aid the defendant in a new business which he proposed to open.</p> <p>The only igsue passed upon by the jury was as to the sum paid for the firm, and whether it had been repaid to him in whole or in part.</p> <p>The court was asked by defendant’s counsel to charge that the plaintiff having full knowledge of the fact that the goods assigned to him were of the partnership effects, the proceeds arising from them should have been applied, and the law will thus dispose of them, in discharge of the partnership debt. The instruction was refused, and the jury were directed that if the plaintiff took possession under an arrangement with the assignor that the firm debt should be paid, then the verdict should be that it was discharged. But if the plaintiff did not come into possession under such arrangement, but under and by virtue of the mortgage and to enforce its terms, the plaintiff could apply the funds to the mortgage debt and the firm debt would remain. The jury found under the instructions, that the firm debt wras not discharged.</p> <p>The court therefore rendered judgment for foreclosure of the mortgage'of the land conveyed by the testator, and the defendant appealed. »</p>

Civil Action, tried at Fall Term, 1884, of-Warren Superior Court, before Gudger, J. This action was brought for the collection of taxes alleged to be due the plaintiff from the defendant for the years 1873 and 1880 inclusive, under the act of 1883, ch. 79, entitled “ an act for the relief of Nathaniel R. Jones, former sheriff of Warren county.” The facts máterial to an un-derstandiug of the point decided are stated in the opinion. The plaintiff.appealed.

<p>Executors and Administrators — Parties.</p> <p>1. Where an executor dies leaving unadministered assets in his hands, the administrator de bonis non of the testator must he made a party to an action hgainst the representative of the deceased executor, in which the next of kin or legatees seek a settlement of the estate.</p> <p>2. If such administrator refuse to join as plaintiff, he may be made a party defendant.</p> <p>(University v. Hughes, 90 1ST. C., 537; Ham v. Kornegay, 85 N. 0., 119; State v. Johnston, 8 Ired., 397; Goodman v. Goodman, 72 N. C., 508; Murphy v. Harrison, 65 N. 0., 216, cited and approved.)</p>

EjectMENT, tried at December Special Term, 1883, of Moore Superior Court, before MacRaé. J. The plaintiffs read in evidence a grant from the state to Joseph Cook, dated December 18, 1797, which covered the land in dispute, and showed a regular chain of title by-deed and descent to Elizabeth Moore, the mother of the feme plaintiff, who died intestate.

<p>Witness — Transaction luith person deceased — Section 590— Wills.</p> <p>A witness, who is a devisee under a script executed in January, is not competent upon trial of an issue demsavit vel non, to speak of conversations with the testator tending to impeach a script executed in May thereafter. As the last may be found to be a revo- . cation of the will previously made, such witness is directly interested in the result of the issue, (Thb Code, § 590,) as to which of the two is the will of the testator.</p> <p>(McLeary v. Nbrment, 84 N. C., 235, cited and approved.)</p>

<p>Adoption of Children — Wills—Parent and Child.</p> <p>1. The provision in Battle’s Revisal, ch. 1, § 3, allowing children to be adopted and to inherit as children born in wedlock, only has reference to cases of the intestacy of the person standing in loco parentis.</p> <p>2. Where, prior to the issuing of such letters of adoption, the party adopting made his will bequeathing certain property to the child afterwards adopted; Held that such bequest takes the case out of the statute providing for after-born children. Rev. Code, eh. 119, § 29.</p> <p>3. If any provision is made for an after-born child, the court cannot say that it is inadequate. The statute only applies when no provision at all has been made.</p> <p>4. Whether the adoption creates the parental relation only from the date of the order, or whether the statute is retroactive and establishes the relation of parent and child from the birth of the child — quaere.</p> <p>(.Meares v. Meares, 4 Ired., 192, cited and approved.)</p>

Civil ActioN, tried at Fall Term, 1883, of Johnstox Superior Court, before McKoy, J. The action was brought to set aside a decree of the late court of pleas and quarter sessions, upon the ground of mistake alleged to have occurred in a proceeding for the division of certain land between the parties as tenants in common.

<p>Motion to dismiss an appeal heard at October Term, 1884, of The Supreme Court.</p>

<p>Trusts and Trustees — Equitable Title in Ejectment — Agency, evidence in.</p> <p>1. Where a deed is made to a trustee conveying land in trust for a married woman, the legal and equitable title will at her death descend to her heirs, since the trustee is no longer necessary, and they have the right to recover the land where they are out' of possession at her death, if their estate has not been divested by some superior title.</p> <p>2. The assignee of a trustee having the legal title, not required for the purposes of the trust, cannot recover the possession from the owner of the equitable title.</p> <p>3. Where a purchaser, in the necessary deduction of his title, must use a deed which leads to a fact, showing an equitable title in another, he will be affected with notice of that fact.</p> <p>4. The only effect the transfer byatrustee of the legal estate has on the cestui que trust is, that it puts the grantee in an adversary position, and the cestui que trust must enforce his right before the-statute bars.</p> <p>5. Declarations of a principal, made after the completion of an act performed by an agent, are not competent to show that the agent-had authority to perform such act.</p> <p>6. Although such evidence was directed to the judge, in order that he might find the preliminary fact that there was prima facie evidence of an agency, yet, if improperly received, a new trial will be awarded.</p> <p>{Jasper v. Maxwell, 1 Dev. Eq., 357; lurnageY. Green, 2 Jones Eq.,. 63; Matthews v. McPherson, 65 N. C., 189; Siith v. Loohabill, 7& N. C., 465; Thompson v. Blair, 3 Mur., 583; McRee v. Alexander, IDev., 321; Caldivell v. Blach, 5 Ired., 463; Ijeggett v. Ooffleld, 5• Jones Eq., 383; Williams v. Williams, 6 Ired., 281; Monroe v. Stutts, 9 Ired., 49; Gh’andy v. Ferebee, 68 N. C., 356; Francis v. Edwards, 77 N. C., 271, cited and apjDroved.)</p>

EjectmeNt tried at July Special Term, 1884, of Randolph Superior Court, before Graves, J. The plaintiff claims the land under a sale made by James A. Barker, as administrator of James Barker, deceased, of lands claimed to have belonged to James Barker, deceased, at his death, to raise assets to pay the intestate’s debts.

EjectmeNt, tried at August Special term, 1884, of Union Superior Court, before MacRae, J. The plaintiff offered in evidence: 1.

Motion to set aside a judgment, &c., beard at Spring Term, 3884, of ONslow Superior Court, before Shepherd, J. It is alleged that the defendants .Miller and wife, on the loth of December, 1875, executed a mortgage to C. 0.

Civil Action to foreclose a mortgage, heard at July Special Term, 1884, of Guilford Superior Court, before Graves, J. The suit was brought by R'.

Civil ActioN for construction of a will, heard at Spring Term, 1884, of Union Superior Court, before MacRae, J. E. S. Harkness and P. C. Stinson, executors of John Harkey deceased, brought this action against the widow and heirs-at-law of the testator to obtain a construction of his will. ■ ■ . The court below adjudged that the testator made no disposition of the money (now in his executors’ hands) and is therefore intestate as to that fund.

<p>Railroads — Negligen ce — Damages.</p> <p>1. The decision in Roberts v. Railroad, 88 N. C., 560, to the' efEeet that the measure of plaintiff’s damages in an action against a railroad for killing a cow, is the difference between the value of the animal, living, and of its dead body, as beef, is approved.</p> <p>2. A new trial is awarded upon the issue as to damages, but the ' findings upon the other issues will remain undisturbed.</p> <p>{Roberts v. Railroad, 88 N. C., 560; Burton v. Railroad, 84 N. C., 192; Bindley v. Railroad, 88 N. C.; 547, cited and approved.)</p>

Ciyil ACTION, commenced befóse a justice of the peace, and tried on appeal'at June Term, 1883, of Vance Superior Court, before Gilmer, J. Upon call of the case in this court the defendant moved to dismiss the appeal.

PetitioN for partition, beard on appeal at Fall Term, 1883, of Cleveland Superior Court, before Gilmer, J. The plaintiffs brought this proceeding to compel partition of the land described in the petition. It is alleged in the petition that the feme plaintiff and the feme defendant are seized in fee as tenants in common of the land. This the defendants deny in their answer, and aver that partition of said land has been made by mutual consent.

<p>Construction of Will — Illegitimate Children, right to take under— Executors and Administrators.</p> <p>1. A testator, among other things, provides as follows: “What is yet remaining, not above disposed of, shall be held and disposed of for the benefit of Ml’s heirs, by my executor, or in. such manner as he may think just and proper;” Kelcl, that the concluding words enlarge the discretion of the executor, but the power exercised must be “for the benefit” of the heirs, and not to dispose of the estate so as to divest himself of the attaching trust.</p> <p>2. Where a bequest is immediate — not dependent upon a preceding limited estate — to the heirs of a living person, and the children of such person are illegitimate; Held, they have the right to take, under the act which declares that a limitation to the “heirs” shall be construed to be the “children”'of such person, unless a contrary intention appears. The Code, §1829. The ruling in Thompson v.'McDonald,, 2 Dev. & Bat. Eq., 463,-commented on.</p> <p>3. “I give to the children of my brother William and my sister Martha one-half of all the money on hand at my'death,” taken in connection with other provisions in the will, authorizes a distribution of the fund in equal parts between the children of his brother and the children of his sister, so as to carry out the intention of the testator. The general rule is-that such limitations will be held to be per capita, but the rule will yield whenever a different intention is indicated.</p> <p>-1. The sale of the land of the testator by the executor and his purchase of the same through an agent is a nullity.</p> <p>(:Thompson v. McDonald, 2 Dev. & Bat. Eq., 463; Kirkpatrick v. Rogers, 6 Ired. Eq., 130; Waller v. Forsythe, Phil. Eq., 353; Adams v. Adams, 2 Jones Eq., 215; Bryant v. Scott, IDev. & Bat., 155, cited and approved.)</p>

Civil Ation, tried upon exceptions to a referee’s report, at August Special Term, 1884, of Union Superior Court, before MacBae, J. The defendant appealed from the ruling and judgment of the court below.

<p>Motion for an injunction heard at Fall Term, 1883, of Guilford Superior Court, before MacRae, J.</p> <p>The plaintiff moved for an injunction and the appointment of a receiver, and for an account of (he renta and profits of the estate named in the deed of trust, which is sufficiently set out in the opinion of this court. His Honor sustained the motion and the defendants appealed.</p>

Civil Action tried at July Special Term, 1884, of Randolph Superior Court, before Graves, J. The plaintiff alleged that in the year 1879, he borrowed two thousand dollars of James E. Macon, the defendant’s testator, and conve}’ed a tract of land to him to secure payment of the same — the deed being in the nature of a mortgage; and that Macon agreed to recon-vey on payment of the money,and, if he sold the land for more than sufficient to pay the debt and interest, he agreed…

Civil ActioN, tried at Spring Term, 1884, of AlleghaNy Superior Court, before Gilmer, J. The action was brought against the defendant for breach of an alleged contract entered into by the defendant to account to the plaintiff for the rents and profits of the land described in the complaint. The case having been at issue on the pleadings, a motion was made by the plaintiff to have a reference for an account.

Ejectment, tried at Spring Term, 1883, of Wilkes Superior Court, before Graves, J. The plaintiff claimed that he was the owner of forty-five acres of land as described in the complaint, embraced in two grants, one for twenty-five and the other for twenty acres. And as to the twenty-five acre tract he alleged that it had been granted to one Holdsclaw, and by him conveyed to one Cousins, and from Cousins he proposed to show a regular chain of title to himself.

Civil ActioN, tried at Fall Term, 1883, of Rockikgham Superior Court, before MacRae, J. This action was brought on a special contract for work and labor done on defendant’s road. The plaintiffs offered evidence of the following facts, which were not disputed, that the Midland railroad company, and the Danville, Mocksville and Southwestern railroad company were building railroads through the county ' of Rockingham.

<p> Appeal Bond, justification of, See </p> <p>An appeal will be dismissed on motion of the appellee where the undertaking is not filed within ten days after appeal taken,- and not justified by one surety that he is worth double the amount-specified therein. Yerbal agreements to waive the statutory requirements will not be regarded.</p> <p>(Wade v. Newborn, 72 N. C., 498; Lytle v. Lytle, 90 N. C., 647, cited and approved.)</p>

Civil Action tried at Fall Term, 1880, of Qranville Superior Court, before Eure, J. This was an action to foreclose a mortgage. The facts are fully reported in same ease 85 N. 0., 17. An account was ordered to be taken by this court, and the case was heard upon exceptions to the commissioner’s report.

<p>Motiok by defendant for certiorari, heard at October Term, 1884, of The Supreme Court.</p>

<p>Appeal— Certiorari.</p> <p>Where an appeal is taken, the record should be transmitted to this court and the appeal docketed, .whether the case is settled or not, so that all proper action can at once be . taken to, perfect it for hearing. Th¿'certiorari is allowed. See Mott v. Ramsay, ante "■249. .> ■ ’</p>

Ejectment, tried at Spring Term, 1883, of Moore Superior Court, before Philips, J. The plaintiffs, who were minors at the time this action-was commenced, suing by their next friend, claim the land in controversy under a devise in the will of their grandfather, Thomas Cox, Sr., deceased, to their father, Thomas Cox, Jr., deceased, which devise was in these words: “ I give and devise to my son, Thomas Cox, two hundred-acres, adjoining the land he now owns, beginning at the…

<p>Appeal Bond, time of filing — Fidio Juris — Fraud and Fraudulent Conveyances— Voluntary Deed. .</p> <p>1. Upon motion to dismiss an appeal because the bond was not filed within ten days after rendition of judgment, it appeared that the undertaking recited the judgment as having been recovered on the first day of the term, following the fiction that refers all the business of the term to its beginning, but the trial in fact took place during the second week and the date of the justification is within ten days thereafter; Held, the motion will not be allowed.</p> <p>2. Where a deed to the grantor’s son is impeached as a voluntary gift upon the ground that he did not retain property ‘ fully sufficient and available for the satisfaction of his then creditors,” as required by Rev. Code, eh. 50, §3; Held, that such conveyance is valid if not made with a fraudulent intent and enough property is retained for all his creditors.</p> <p>3. Held further: But where such deed provides that the grantee shall support his invalid brothers (naming them) and comply with the conditions imposed, it is not voluntary within the meaning of the above statute, but rests upon a valuable consideration.</p> <p>4. Held also : The operation of such deed does not depend upon the value of the grantor’s reserved estate, but upon the intent with which it was made, shared in by the grantee. And upon the question of intent, evidence of his liabilities and value of his un-disposed of property is competent to be considered by the jury.</p> <p>5. Nor can gifts of visible estate be defeated, where the debtor has • resources in stocks or other securities of value to meet his liabilities.</p> <p>6. The judge’s charge is, in substance, responsive to the instructions, that the retained property must be ‘ sufficient and available ” for debts.</p> <p>(Clifton v. Wynne, 811ST. C., 160; Black v. Sanders, 1 Jones, 67; Pul-len v. Hutchins, 67 N. C., 428; Warren v. Mahely, 85 N. C., 12; O'Daniels. Crawford, 4 Dev., 197; Moore v. Hinnant, 89 N. O., 455; McCanless v. Minchum, lb., 373, cited, commented on and approved.)</p>

Civil Action tried, upon exceptions to a referee’s report, at March Special Term, 1884, of Wake Superior Court, before Avery J. The suit was brought for an account and settlement of an estate as set out intheopinion of this court. The plaintiffs are Andrew Syme (administrator de bonis non, cum testamento annexo of George E. Badger), M. McGehee and wife and Catharine Haigh.

Civil Action, tried at August Special Term, 1884, of Union Superior Court, before MacBaé, J, In this action the plaintiff seeks to recover compensation in damages for the destruction by fire of two houses belonging to him, and in the occupation of the defendants under a contract of lease, communicated by a stove-pipe passing through the wall and weather-boarding; and negligence is imputed in the manner of putting up the stove and passing the smoke-pipe through inflammable…

<p>Civil Action tried at Spring Term, 1884, of Granville Superior Court, before McKoy, J.</p> <p>The defendant appealed from the ruling and judgment of court below.</p>

Ejectment tried at August Special Term, 1884, of Union Superior Court, before MacRae, J. John Morgan Rea, on the 25th day of March, 1857, by proper deed, conveyed the land in dispute to his son, John L. Rea, who was the father of the feme plaintiff. 'John L. Rea died in December, 1862, leaving surviving him the feme plaintiff, his only heir at law. At that time she was an infant of tender years.

<p>Special PROCEEDING, commenced before the clerk and heard at Spring Term, 1884, of Davie Superior Court, before Qilmer, J.</p> <p>This proceeding was instituted by the plaintiff as administrator of Levi Cranfill, deceased, against the defendant as heir-at-law, to obtain an order to sell land for assets.</p> <p>The facts appear in the opinion. The. plaintiff appealed fr.om the judgment of the court below.</p>

-Civil ActioN tried at Fall Term, 1883, of Vance Superior Court, before MacRae, J. This action was commenced in Nash superior court, and upon affidavit removed to Vance for trial.

Civil Action tried at Spring Term, 1884, of Davie Superior Court, before Gilmer, J, • This was an action brought by plaintiffs as the assignees of Milton Gaither, guardian of plaintiffs, against Ca.sper Sain, Sr., administrator de bonis non of H. B; Holman, deceased, defendant, upon a judgment guando at fall term, 1869, in favor of Milton 'Gaither as guardian of plaintiffs, against B. Baile}, administrator of H. B. Holman, and an absolute judgment rendered at the same time…

Civil Action, tried at Spring Term, 1884,' of Nash Superior Court, before Shepherd, J. The plaintiff, as administrator of Duffin Perry, brings this ■action under the act of April 6th, 1869, against the defendant company for the recovery of damages for causing the death of his intestate, a passenger on one of its cars, by reason of the negligent running and mismanagement of its trains in charge and under control of its officers arid employees.

<p>Evidence and Declarations in Ejectment — Impeaching Witness— Title, registration of deed — Fraud.</p> <p>1. In an action to convert a deed absolute upon its face into a mortgage, the declarations of the grantor that he owed the grantee money and wished to sell the land to pay it, made alter the deed was executed and while he was in possession ol the locus in qua jointly with the grantee, are incompetent.</p> <p>2. One cannot introduce evidence to discredit his own witness, yet il a witness testify to facts which make against the party who called him, the party is not precluded from showing these facts to be otherwise, notwithstanding such evidence has the effect of indirectly impeaching his own witness.</p> <p>3. The title of a grantor is divested from tlie time of the delivery of the deed which is subsequently registered.</p> <p>4. Heirs can only attack a deed of their ancestor for fraud or undue influence used in bringing about .its execution; and in such case, only such declarations as tend to prove such fraud or undue influence, made after the conveyance and with unchanged possession, are received. Or, such declarations may be proved in disparagement of the title inferred from possession and use.</p> <p>5. Where two parties are in possession of land, the possession in law follows the title.</p> <p>6. Declarations made in the absence of the party to be prejudiced by them are not admissible as against such party.</p> <p>{Spencer v. White, 1 Ired., 236; Shelton v. Hampton, 6 Ired., 216; Hice v. Cox, 12 Ired., 315; Kirby v. Masten, 70 1ST. C., 540; Yates v. Yates, 76 N. 0., 142; Hilliard v. Phillips, 81 N. C., 99; Roberts v Roberts, 82 1ST. C., 29; Sutliffy. Hu/nsford, 8 Ired., 318; Whitesides' v. Twitty, lb., 431; Straus v. Beardsley, 79 N. C., 59, cited and approved).</p>

<p>Landlord and Tenant — Lease, provision of— Contract — Equity, relief by — Agency.</p> <p>1. A lease provided that, in case the lessee quit the premises during the term, or failed to pay the rent reserved, the improvements put on the premises by the lessee should become the absolute property of the lessor; and also, that at the expiration of the term the lessee should have the right to remove all the improvements put , up by him upon complying with all the terms of the lease. The lessee failed to pay rent, and the lessor entered and took possession of the improvements; Held, in an action by the lessee for a violation of the provision allowing the removal of the improvements, that he eould not recover. A party exercising a legal right under a contract cannot he subjected to an action ior damages for asserting it.</p> <p>2. Equity'never relieves against a penalty for the purpose of allowing an action for damages; so, in this case, if the forfeiture of the improvements be a penalty, equity will only relieve to the extent of allowing the lessee tQ remove them.</p> <p>3. Where a party contracts as “agent” without disclosing his prin_ eipal, quasre, whether it is not his personal undertaking and to be so construed, although a jury find that he contracted as agent and not as principal.</p>

Civil Action, tried at Spring Term, 1884, of Davie Superior Court, before Gilmer, J. It appears that the plaintiff, Fannie Williams, and the defendant and II. C. Eccles formed a partnership for the purpose of keeping a hotel in the town of Charlotte, in this state, to continue from the 1st day of January, 1870, for three years next thereafter, and that they did such business for that length of time.

<p>EjectmeNT tried at Spring Term, 1882, of Cherokee Superior Court, before Gilliam, J.</p>

Ejectment tried at Fall Term, 1884, of Catawba. Superior Court, before Gilmer, J. Oil the trial the plaintiff introduced one Little as a witness, and handed him the plat made by the surveyor, and asked him if he was acquainted with the land represented therein.

Civil ActioN, tried upon exceptions to a referee’s report at Spring Term, 1884, of Davie Superior Court, before Gilmer, J. The action was brought, by the plaintiffs as next of kin of John R. Parker, deceased, against the defendants A. T. Grant and Rebecca Grant (formerly Parker) and others, sureties upon their bond as administrator and administra-trix of said deceased.

Civil Action, tried on exceptions to a referee’s report, at Fall Term, 18S2, of Northampton Superior Court, before McKoy, J. This action, originally commenced by Alanson Capeheart against Asa Biggs and Kader Biggs, constituting the partnership firm of Kader Biggs & Co., was for an injunction to restrain them from making sale under a deed in trust to secure bis indebtedness to them, and meanwhile for the statement of an account in order that the amount due be ascertained.

MotioN heard at Spring Term, 1884, of Mitchell Superior Court, before Shipp, J. The defendant G. L. Phillips made this motion, upon affidavits, to be allowed to come in and defend the action as landlord, and for a writ of restitution, placing his ejected tenant into possession of the premises in dispute until the final hearing. The motion was refused and the defendant appealed.

Civil Action tried at Spring Term, 1884, of Granville Superior Court, before McKoy, J. On October 80th, 1866, Russell H. Kingsbury and wife by deed for the recited consideration of twenty-five hundred dollars, paid by Peter W. Young, conveyed to the latter in fee a certain lot of land in the town of Oxford, to be held upon the following uses and trusts as therein declared, to-wit: For the sole, separate and exclusive use and benefit of Jane Eliza Young, wife of said Peter W.…

Civil Action, tried upon exceptions to a referee’s report, at Fall Term, 1884, of Buncombe Superior Court, before Graves, J. ■ The action was brought on the 21st of October, 1878, to recover the sum of $390.95 due on account for goods sold by the plaintiffs to the defendants on the 17th of January, 1870, payable in sixty days from the date of the purchase, and at fall term, 1878, the defendants in their answer alleged payment in full.

<p>Ejectment tried at Fall Term, 1884, of Wake Superior Court, before 'Gudger, J.</p> <p>The plaintiff appealed.</p>

Civil Action, tried at Spring Ternj, 1884, of Anson Superior Court, before Philips, J. This action is prosecuted by creditors of the defendant Harvey T. Knotts, whose judgments have been docketed in the superior court of Anson and Union, to enforce the foreclosure of a mortgage of lands lying in those counties, which had been executed to him by his co-defendants, to the end that any excess of the proceeds of sale not required to discharge the secured debts might be applied…

Civil Action, tried at Spring Term, 1884, of Macon Superior Court, before Graves, J. This was a creditor’s bill filed by the plaintiff, in behalf of himself and the other creditors of the estate of T. A. Lowery, deceased, against the defendant as his administrator, under the act of 1871-72, ch. 213, § 1. (Bat.

Ejectment, commenced in McDowell and removed to and tried at Fall Term, 1883, of Rutherford Superior Court, before Gilmer, J. The plaintiff, suing with leave of the court in forma pau-peris, prosecutes his action to recover possession of the land described in the complaint, alleging the title to be in himself and a wrongful withholding by the defendant.

Civil• Action, tried at Spring Term, 1884, of Wilson Superior Court, before Shepherd,, J. The action was brought to recover for goods sold to the defendants. The allegations in the pleadings are substantially set out in the opinion of this court. It was'admitted that the contract of sale was made in the town of Wilson, N. C., and that the goods (the commercial fertilizers) were delivered as alleged.

<p>Modification of Judgment — Rehearing.</p> <p>A rehearing will not be granted upon a summary motion to modiiy a final judgment of this court. See ante, 76.</p> <p>{Moore v. Hinnant, 90 N. 0., 163, cited and approved.)</p>

Civil Action, tried at Spring Term, 1884, of SwaiN Superior Court, before Graves, J. The action originally consisted of five distinct actions, tried before a justice of the peace and carried by appeal to the superior court. The facts are that the plaintiffs sold the defendants, by sample, $800 worth of boots and shoes, and guaranteed they should be of like quality with the samples.

<p>Civil Action, tried at- Fall Term, 1883, of Granville Superior Court, before MacBae, J.</p> <p>Defendants appealed.</p>

Civil ActiON for damages tried at Fall Term, 1883, of Gaston Superior Court, before Gilmer, J. The plaintiff in his complaint alleges : 1. That the defendants (Richmond & Danville and Atlanta & Charlotte Air-Line) are railroad corporations owning and operating a railroad from Charlotte in this state to Atlanta in Georgia. 2.

<p> Appeal. </p> <p>Motion to dismiss appeal will be allowed where there is no waiver of the undertaking and no money deposit in lieu thereof, and where the bond is not justified in double the amount specified therein.</p> <p>(Harshaw v. MeDowell, 89 N. C., 181, cited and approved.)</p>

<p>Civil ActioN, tried at Spring Term, 1884, of Forsyth Superior Court, before Gilmer, J.</p> <p>Judgment for plaintiffs; appeal by defendant.</p>

Motion to remove a cause heard at Fall Term, 1884, of Catawba Superior Court, before Gilmer, J. The defendant filed his petition to remove the case to the circuit court of the United States at Greensboro, for trial. His Honor granted the prayer and the plaintiff appealed.

Motion heard at Fall Term, 1884, of Catawba Superior Court,, before Gilmer, J. Under the warrant of attachment issued at the same time with the summons on March 14th, 1883, certain personal and real property of the defendant was seized and taken into possession by the sheriff, and while so held the defendant’s counsel under a power of attorney from him, appearing for a special purpose only and to make the motion, moved the clerk to vacate the attachment and the order for its…

<p>Ejectment tried at Pall Term, 1883, of Moore Superior Court, before McKoy, J.</p> <p>Defendants appealed.</p>

<p>Civil Action for libel, tried at July Special Term, 1884, of Guilford Superior Court, before Graves, J.</p> <p>Judgment for defendants, from which plaintiff appealed.</p>

<p>Civil Action, tried at Spring Term, 1883, of Ashe Superior Court, before Gudger, J.</p> <p>Verdict and judgment for plaintiff. Appeal by defendant.</p>

Civil Action tried at Spring Term, 1884, of Alamance Superior Court, before McKoy, J. This action was begun by petition of plaintiff company to defendant commissioners to strike from the tax-list of 1883 the assessment on shares of stock held by non-resident stockholders in plaintiff corporation. The petition was denied, and the plaintiff appealed, and upon the hearing the following facts, by consent, were found by the court below: 1.

<p>EjectmeNT, tried at July Special Term, 1884, of Guilford Superior Court, before Graves, J.</p> <p>The plaintiff bought the land in dispute at a sheriff’s sale under a judgment and execution (obtained in a suit begun by attachment under the law as it existed prior to the C. C. P.) against the Deep River aiming company; and with a view to conclude the defendant from denying the title of said company, and to obviate the necessity of showing title out of the state the plaintiff put in evidence the transcript of the record of a suit in Rowan superior court, of B. T. Martin (defendant in this case) against the said company, which showed a judgment in favor of Martin, and the same was docketed in Guilford county and executions issued thereon, and returned. ■</p> <p>The plaintiff then proposed to prove by the sheriff that he had a vend, ex, from Rowan on this Martin judgment, which was lost, under which he had made sale of the lands sued for, subsequent to the sale of the plaintiff, and that Martin was the purchaser. On objection, the court excluded the proof, but allowed the sheriff to state that he sold the land and Martin became the purchaser, to whom he executed a deed. Defendant excepted.</p> <p>The plaintiff then proved that the lands levied on were the same that was sold and conveyed to plaintiff, and the same that was described in the complaint and in the deed of the sheriff to Martin.</p> <p>The plaintiff, on objection, was allowed to prove by what names the said company was called, to-wit, sometimes the “ ’Deep River mining company,” and sometimes the “ Deep River copper mining company.” Defendant excepted upon the ground that parol evidence was not admissible for such a purpose, and also that the existence of such company, under which plaintiff claims, had not been shown by a charter or an organization; and that its existence not being thus proved, it had no capacity to hold and have title to land, and therefore the sheriff’s sale and deed to plaintiff conveyed no title, and the deed was void ; and further, that the doctrine of estoppel does not apply in this ease, and the plaintiff must show title out of the state to enable him to recover.</p> <p>His Honor, being of opinion against the defendant, instructed the jury accordingly. Verdict and judgment for plaintiff, and appeal by defendant.</p>

Civil Action tried at Spring Term, 1884, of Iredell Superior Court, before Shipp, J. The action is brought to recover damages for alleged negligence on the‘part of defendant in causing the death of Otho Chambers (the intestate of plaintiff) who was a brake-' man in the service of the company.

<p>Contract — Tort—Issues—Severance of trees.</p> <p>1. The plaintiff sues an executor for compensation for services rendered his testator during the latter part of his life, upon an alleged promise made by the testator. The defendant sets up, by way of counter-claim, a contract of lease between the testator and the plaintiff, under which the plaintiff entered upon the land, and in which it was agreed that the latter should have the farm for five years upon his furnishing a support to the testator and his wife; and further alleges that plaintiff has cut down the timber on the premises and sold the same for a considerable sum and appropriated it to his own use. The plaintiff, in his replication, denies the counter-claim and his liability as alleged; Held, error to refuse to submit an issue to the jury (tendered by defendant), as to whether, during the life time of the testator, the plaintiff cut and appropriated the timber, as alleged, and the value of the same; and also the facts involved to the alleged counterclaim.</p> <p>2. Held further, The separation of the trees from the land converted them into personal property, but the title to'them at once vested in the owner of the land.</p> <p>3. Where personal property is tortiously taken and sold, the owner may waive the tort, affirm the sale, and recover upon a count for money had and received to his use.</p> <p>{Burnett v. Thompson, 6 Jones, 210; Potter v. Madre, 74 N. C., 36, cited and approved.)</p>

Ejectment, tried at Fall Term, 1883, of Yadxin Superior Court, before Shipp, J. This action was brought to recover the land described in the complaint. The defendants claimed title thereto as hereinafter indicated. On the 26th day of March, 1873, C. W. Williams brought his action before a justice of the peace in Yadkin county against the plaintiff to recover the sum of $125.35. The summons in that action was made returnable on the 28th day of April, 1873.

Civil ActioN for damages tried at Fall Term, 1884, of Burke Superior Court, before Gilmer, J. In deference to an intimation of the court that the action could not he maintained, the plaintiff suffered a nonsuit and appealed.

<p>Account and Settlement — Executors and Administra,tors.</p> <p>In an action for an account and settlement, the death of the' defendant being suggested, his executor comes in and is made a party defendant and moves for leave to file an answer denying that he has assets; Meld, that the question of assets does not arise here, and the motion' cannot be allowed. If plaintiff obtains judgment, it only ascertains the debt which must share in the assets that may come into the executor’s hands, according to its dignity, when the estate is settled.</p> <p>(Holmes v. Foster, 78 N. C., 35, and eases cited, approved.)</p>

<p>Motion of defendants to dismiss appeal heard at October Term, 1884, of the Supreme Court.</p>

<p>Cleric of Superior Court — Jurisdiction —Special Proceedings.</p> <p>1. The office of probate judge is abolished and the duties thereof now devolve upon the clerk of the superior court, and in such case he has a special jurisdiction which is distinct and separate from his general duties as “ clerk of the court.”</p> <p>2. Where issues of fact are joined before the “clerk” in the exercise of his special jurisdictional powers as a distinct tribunal, the issues must be transferred to the “superior court” — another jurisdiction — to be tried, aud when tried must be remanded to the clerk; and so also, where an appeal is taken in like cases from his decision upon a question of law, the judge decides it and remands the case.</p> <p>3. But the exercise of judicial powers by the “ clerk of the court” is the exercise of them by the ‘ ‘ court ” through the clerk; and the action of the clerk stands as that of the court, if not excepted to and reversed or modified on appeal, as allowed by the statute.</p> <p>4. Special proceedings ordinarily are proceedings in the “superior court,” and where in such cases issues of fact are raised, the clerk transfers them to the civil issue docket for trial by jury at term; or where issues of law are raised and decided on appeal by the judge, at term or in vacation, the issues so found are not remanded to the clerk — the whole proceeding being in one record and in the same jurisdiction; but the court, through the clerk, will proceed accordingly as the statute directs; Hence, in a special proceeding for dower, as here, the issues found or decisions of law made, are not remanded, but the court, through the clerk, proceeds according to law.</p> <p>(Mr Justice Ashe dissenting).</p>

Civil Action for damages tried at Spring Term, 1884, of Halifax Superior Court, before Avery, J. The plaintiff sues to recover damages for ejection from defendant’s passenger car. On the 14th of June, 1883, the plaintiff got on the defendant’s train at Whitaker’s depot to be carried to Battle-boro depot, about four miles distant.

Proceeding in Bastardy heard at Spring Term, 1884, of Watauga Superior Court, before Shipp, J. This proceeding was instituted before a justice of the peace by one Mary L. Tice, upon whose complaint and affidavit, that the defendant was the father of a bastard child begotten upon her, the defendant was arrested, tried and adjudged to be the father of the child, and to pay a certain sum per month for its support.

<p> Appeal Transcript of Record. </p> <p>The transcript of record on appeal should be drawn in accordance with Eaton’s Forms. The transcript in this case is.so imperfect that the court ex mero motu ordered a writ of certiorari to issue.</p> <p>(State v. King, 5 Ired., 203; Sudderthv. McCombs, 67 N. C., 353; State v. Jones, 82 if. C., 691; Howell v. Ray, 83 N. C.,558; States. Cay-lord, 85 N. C., 551, cited and approved.)</p>

Indictment for an assault, tried at Spring Term, 1884, of Bertie Superior Court, before Avery, J. The prosecution was commenced in the inferior court of Bertie county, and the indictment contained two counts— first, for an assault with a deadly weapon, and secondly, for an assault and battery. The jury found the defendant “ not guilty ” on the first count, but “ guilty ” on the second.

<p>Jurisdiction, binding over■ of party to court does not give- — Exception to Evidence — Declarations of Accused — Res gestee.</p> <p>1. Where courts have concurrent jurisdiction, that court possesses the case in which jurisdiction first attaches, as here, by the finding of the indictment. The fact that defendant was bound over to one of said courts and the return of the warrant made, does not necessarily give jurisdiction to such court.</p> <p>2. An exception to evidence should state the testimony that this court may see and determine its effect.</p> <p>3. What a defendant says is always received against him when pertinent to the issue, but not for him unless it be a part of the res gesta; hence on trial of an indictment for forcible trespass, it was held no error to exclude the declarations of defendant while on his way to the prosecutor’s house.</p> <p>{Childs v. Martin, 69 N. C., 126; State v. Tisdale, 2 Dev. & Bat., 169; States. Casey, Busb., 209; Haywood v. Haywood, 79 N. C., 42; State v. Yarborough, 1 Hawks, 78; State v. Cowan, 7 Ired., 239; State v. Tilly, 3 Ired., 424; State v. Worthington, 64 N. C., 594; State v. Howard, 82 N. 0., 623; State v. Bryson, Winst., 86, cited and approved.)</p>

<p>Ceiminal Action, tried on appeal, at Fall Term, 1884, of Greene Superior Court, before Avery, 3.</p> <p>The defendant appealed from the judgment rendered against him by the justice.of the peace, to the superior court.</p> <p>The warrant upon which the defendant was tried in the court of the justice of the peace, was as follows: To any lawful officer, etc.: Whereas, Taylor Barrow, overseer of the public road from Fort Run to Wayne county line, has complained on oath to me, one of the acting justices of the peace in and for said county, that he appointed the 8th day of August, 1884, to work said road, and that he gave William Vaughan, one of the hands liable to work on said road, lawful notice to attend and work said road, and that he failed and refused to do so : These are, therefore, to command you to arrest said William Vaughan, and him have before me at Shine, in said county, on the 27th day of August, 1884, at 10 o’clock A. M., then and there to. answer said complaint, and be otherwise dealt with according to law.” Given under my hand and seal this 27th day of August, 1884.</p> <p>(Signed) John W. Taylor, J. P. [Seal.]</p> <p>When the case was called-in the superior court for trial, the defendant moved to quash the warrant, and the solicitor moved to amend the charging part of the warrant as follows, to wit: “That William Vaughan, late of Bull-head township, in the county of Greene aforesaid, on the 8th day of August, 1884, and for ten days and more, before the said William Vaughan had been duly summoned as a hand to work on said public road, situate in said township, in said •Greene county, and was then and during all said time between eighteen and fdrty-five years of age, and liable, to work on said public road, and that three days and more before the day first aforesaid, the said William Vaughan had been duly and lawfully summoned to work on said public road, on the said first named day, and that the said William Vaughan being then and there liable, as aforesaid, and having been so summoned as aforesaid,, did on the day. and year aforesaid, in said township, in the county aforesaid, wilfully and unlawfully fail and omit to attend and work on said public road, as he was so summoned to do as aforesaid, he, the said William Vaughan, not having paid to said overseer one dollar to be relieved from so working on said public road, against the form of the statute in such case made and provided and against the peace and dignity of the state.”</p> <p>The court refused the motion to amend, on the ground that 'section 908 of The Code did not give the court power to grant the amendment asked, but allowed the motion to quash.</p> <p>' From the refusal of the court to allow the amendment, and the order of the court that the warrant be quashed, the solicitor appealed.</p>

The defendants were charged in a justice’s warrant with a misdemeanor, in “ unlawfully” releasing impounded stock, in violation of the act of 1879, ch. 185, § 12. The case is stated in the opinion here. The state solicitor appealed from the ruling of the court below.

INDICTMENT for carrying concealed weapon, tried at Fall Term, 1881, of Rockingham Superior Court, before Qud-ger, J. The defendant was charged with carrying a pistol, concealed about his person, off his own premises, in violation of the act of 1879, ch. 127. The Code, § 1005. He was found off his own premises on the platform at the depot, at Reidsville, with a pistol in his pocket.

<p>INDICTMENT for carrying concealed-weapon, tried at Fall Term, 1884, of Buncombe Superior Court, before Shipp, J.</p> <p>This prosecution was commenced in the inferior court, and from the judgment pronounced upon a verdict of guilty, the defendant appealed to the superior court where the judgment below was affirmed, and the defendant then appealed to this court.</p>

<p>Act of Assembly, void for ambiguity, and cannot be helped by evidence aliunde — Liquor selling— Witness.</p> <p>1. If a statute be so vague in its terms as to convey no definite meaning to the court or a ministerial officer, it is void.</p> <p>2. An act of assembly prohibited the sale of liquor “within three miles of Mt. Zion church in Gaston county, ” and it appeared on trial of an indictment for its violation that there were two churches of that name in the county; Held, the act is ambiguous and inoperative.</p> <p>3. Neither a member of the legislature at thé time of the passage of such act, nor other person is competent to testify as to which church it has reference. It is the act of the legislature as an organized body, and its meaning must be ascertained according to the established rules of construction.</p> <p>(State v. Boon, Tay., 103; Drake v. Drake, 4 Dev., 110; Adams v. Turrentine, 8 Ired., 147; /State v. Melton, Busb., 49; Blue v. McDuf-fie, lb., 131, cited and approved).</p>

Criminal Action, commenced before the mayor of Salisbury, for violation of town ordinance, ahd' tried on appeal at Spring Term, 1884, of Rowan Superior Court, before Gilmer, J. By tbe act of incorporation of the town of Salisbury ratified on the 27th day of January, 1859, it was enacted in section 28 that the commissioners of said town shall have power to regulate the manner in which provisions may be sold in the streets and markets, and to fix penalties for the breach of…

<p>Indictment — Felony and Misdemeanor — Embezzlement—Statutory Crimes.</p> <p>1. An indictment framed under section 3678 of The Code, charging the defendant with embezzlement in “wilfully, knowingly and corruptly ” failing to pay over a fine to the school fund,' is sufficient. Such offence is a misdemeanor, and therefore it was error in the court to arrest judgment upon the ground that the word “feloniously” was omitted.</p> <p>2. A statutory crime is not a felony unless so declared by the legislature.</p> <p>3. Nor will an offence be made a felony by the construction of any doubtful and ambiguous words in the statute creating it.</p> <p>4. The doctrine that a crime is a felony where the puishment prescribed is confinement in the penitentiary, does not obtain in this state.</p> <p>Indictment for embezzlement tried at August Term, 1884, of New Hanover Criminal Court, before Meares, J:</p> <p>The defendant being a justice of the peace, was indicted under The Code, § 3678, for embezzlement in failing to pay over a fíne of five dollars, which he had, as said justice, imposed as a judgment upon and received from one Bryan, to the treasurer of the county board of education for the county of New Hanover within the time prescribed by law. The bill charged the offence as having been committed “ wilfully, knowingly and corruptly,” &e.</p> <p>The defendant was found guilty, and then moved in arrest of judgment upon the ground that the bill of indictment failed to charge that the offence was & felonious embezzlement. The court sustained the motion, and the solicitor appealed to this court.</p>

INDICTMENT for fornication and adultery tried at Fall Term, 1884, of Iredell Superior Court, before Gilmer, J. The case states that “the evidence was entirely circumstantial and no act of criminal intercourse was proven by direct testimony.” His Honor, among other things not objected to by the defendants, charged the jury “that this was an offence usually committed in secret, and for this reason perhaps.the law does not require the state to prove actual acts of illicit…

<p>Special Verdict— Obstructing road— Dser.</p> <p>1. A special verdict which fails to find the defendant guilty or not guilty as the court may adjudge the law to be, upon the facts found, is defective.</p> <p>2. The guilt of the accused must be passed upon by the jury, and though the verdict-is dependent upon the opinion of the court as to the law, yet it is none the less a jury-verdict when the question of law is decided.</p> <p>' 3. The special verdict in this ease, rendered on a trial for obstructing a road, is also defective, in that, it does not find that the user of the road by the public was as of right and adversary.</p> <p>(State v. Wallace, 3 Ired., 19S; States. Moore, 7 Ired., 228; Boy den v. Aohenbach, 86 N. C., 397 and 79 N. C., 539; Ray v. Lipscomb, 3 Jones, 185; State v. Bray, 89 N. C., 480, cited and approved.)</p>

ORDER for new trial made at October Term, 1884, of The Supreme Court.

<p> Homicide, evidence and judge’s charge in. </p> <p>1. Where the evidence showed that the prisoner could have escaped the threatened violence of the deceased, but slew him in the difficulty which ensued, and the judge charged the jury, “that if the prisoner was so situated that he could escape, hut preferred to shoot rather than to escape, he would at least be guilty of manslaughter.” Held no error, and the jury were warranted in returning a verdict of manslaughter.</p> <p>2. The words “at least,” &e., were used in the sense of “clearly a ease of manslaughter,” and did not present the. ease as one of murder or manslaughter — taken in connection with other parts of the charge and the prisoner’s plea of self-defence.</p> <p>(State v. Floyd, 6 Jones, 392; State v. Taehet, 1 Hawks, 210; State v. Ellieh, 2 Winst., 56; State v. Massage, 65 N. C., 480; State v. Earns, 1 Jones, 190; State v. Dixon, 75 N. C., 275; State v. Hill, 4 Dev. & Bat., 491; State v. Ingold, 4 Jones, 216, cited and approved.)</p>

Indictment for murder tried at Spring Term, 1884, of Halifax Superior Court, before Avery, J. The prisoner was indicted for the killing of one Henry Ponton by shooting him with a pistol on the fifth day of November, 1883. Exception 1, 2, 3, 4. The facts relating to exceptions to jurors are stated in the opinion.

<p>INDICTMENT for murder, tried at June Term, 1884, of Wake Superior Court, before Avery, J.</p> <p>Verdict of guilty ; judgment; appeal by prisoner.</p>

<p>INDICTMENT for murder tried at January Special Term, 1884, of Iked ell Superior Court, before Graves, J.</p> <p>Verdict of guilty, judgment, appeal by prisoner.</p>

INDICTMENT for assault and'battery, tried at Fall Term, 1884, of Orange Superior Court, before Philips, J. The indictment was found against Henry Bullock and his wife Mag Bullock, and the jury returned a verdict of guilty against the latter, she alone being on trial. On the trial the state introduced the prosecutor (one Jackson), as a witness, who testified that he rented a tract of land to Henry Bullock, who with his wife lived in a house upon the same.

<p>Indictment for assault and battery, tried at Spring Term, 1884, of Haywood Superior Court, before Graves, J.</p> <p>The defendant was indicted for an assault and battery upon his wife “ with a certain deadly weapon, to-wit, a stick,” and “ did beat, wound and seriously injure,” &c., and upon the trial the jury found a special verdict as follows :</p> <p>“The jury find that Rachel Huntley, upon whom the assault and battery is alleged in the bill of indictment to have been committed, was at the time of the alleged assault and battery the wife of the defendant; that within six months after the alleged assault and battery, complaint was made by one Evans before W. H. Faucett, a justice of the peace of Haywood county, and thereupon he issued his warrant and had the defendant brought before him and tried the case, and adjudged that there was no serious injury done, or deadly weapon used, and took final jurisdiction of the case, and adjudged the defendant guilty and imposed a fine upon him; that the facts in regard to the alleged assault, and battery we find to be, that within two years before, the finding of the bill of indictment the defendant took an ordinary switch, not larger than the little finger of the usual size of a woman’s hand, and with the switch whipped .the said Rachel Huntley over her clothing on her back; that the whipping was continued for some time, not giving her more than twenty licks; that the whipping was of such violence as to break the skin and raise whelks upon her person, and to draw the blood, so that it came through her clothing so as to be seen on the outside of her clothing in three or four places; that the said Rachel was not so injured as to prevent her from going about and doing as usual. If upon these facts the defendant is in law guilty, we find him guilty; and if upon these facts the defendant is in law not guilty, we find him not guilty.”</p> <p>The court being of opinion that the facts found in the special verdict did not in law amount to serious injury, and being further of the opinion that the justice of the peace had final jurisdiction to try and determine the matter, directed a verdict of not guilty to be entered, and adjudged that the defendant go without day, from which judgment the solicitor for the state appealed.</p>

Indictment for assault and battery tried at Spring Term, 1884, of Sampson Superior Court, before Shepherd, J. There were two counts in the indictment, one of which charged that the alleged assault was committed with a deadly weapon, without specifying the weapon, and the other did not aver the use of a deadly weapon but charged that serious damage had been done.

INDICTMENT for gambling tried at Spring Term, 1884,j of Cleveland Superior Court, before McRae, J. The defendant is indicted for a violation of that clause of the statute, which prohibits gambling “ in any house wherein spirituous liquors are retailed, or any part of the premises occupied * * * wherein spirituous liquors are sold as aforesaid.” The Code § 1042.

Incictment for perjury, tried, at Spring Term, 1884, of Duplin Superior Court, before Shepherd, J. The case states: It was conceded that at a trial in August, 1880, before a justice of the peace, in which this defendant was prosecuted for bastardy by one Sarah Creech, the defendant swore he had never had sexual intercourse with the said Sarah.

<p>Removal of Fence — Evidence of title to land not admissible.</p> <p>1. On trial of an indictment for removing a fence in violation of The Code, § 1062, it appeared in evidence that there was a controversy about the dividing line which separates the land of the prosecutor from that of the defendant — the former being in possession but the latter claiming the right to the.land; Held, that evidence offered to show that the fence was on land belonging to the defendant, was properly ruled out.</p> <p>2. In such case it is only necessary for the state to show the actual possession of the prosecutor; and it is no defence for the defendant to locate the dividing line and show title in himself. This right must be asserted in a civil action.</p> <p>(State v. Williams, Busb., 197; State v. Head/rick, 3 Jones, 276; State v. Mace, 66 N. C., 344; State v. Boseman, 66 1ST. C., 634; State v. Hovis, 76 1J. C., 117; State v. Piper, 89 N. C., 661, cited and approved.)</p>

Indictment for false pretence, tried at Pall Term, 1883, of Rockingham Superior Court, before MacBae, J. The facts in the case as developed by the evidence are, that defendant went to the store of R. H. Smith in September, 1883, and asked Smith to credit him for some goods, and stated that the child of his sister-in-Jaw was dead, and that the articles he wished to buy were necessary for the burial of the child.

<p>INDICTMENT for obstructing a water-course tried at Spring Term, 1884, of Pender Superior Court, before Shepherd, J.</p> <p>Verdict of guilty; judgment; appeal by defendant.</p>

<p>Injury to live stock, sufficiency of indictment — Notice, proof of contents— Criminal Act, intent— Widow's year’s support.</p> <p>1. An indictment under The Code, § 1068, for injury to live-stock, in which the animal alleged to have been injured is described as a “certain cattle beast,” is sufficiently definite.</p> <p>2. On trial of such indictment, the contents of a notice posted by prosecutor forbidding all persons trading for or buying his cattle, may be proved by parol, without showing the loss or destruction of the paper.</p> <p>3. The fact that a criminal offence was committed openly and without secrecy goes to the jury to be considered by them upon the question of the existence of a felonious intent. It does not necessarily disprove it.</p> <p>4. The charge of the court in this ease, approved.</p> <p>(/State v. Stanton, 1 Ired., 424; State v. Brown, 1 Dev., 137; State v. Clark, 8 Ired., 226; State v. Turner, 66 N. C., 618; State v. Q-odet, 7 Ired., 210; Satterfield v. Smith, 11 Ired., 60; Pollock v. Wilcox, 68 N. C., 46; Wilson v. Derr, 69 N. C., 137; State v. Capps, 71 N. C., 93, cited and approved.)</p>

Indictment for retailing liquor, tried at Spring Term, 1884, of Cleveland Superior Court, before MacBae,J. The defendant was indicted for selling liquor within two and a half miles of Zion church in Cleveland county.

INDICTMENT for an assault tried at Spring Term, 1884, of Warren Superior Court, before Avery, J. The defendant was indicted in the inferior court of Warren county for a simple assault and battery, committed within one mile of the court house in Warrenton, where and while that court was sitting. He demurred to the indictment, alleging as grounds of demurrer that the court had no jurisdiction of the offence charged.

IndictmeNT for larceny tried at Fall Term, 1884, of Gkeene Superior Court, before Avery, J. There was no exception to the ruling of thejudge upon the trial, and none to his charge to the jury.

<p> Indictment Criminal Practice. </p> <p>Where a bill of indictment is ignored, a new bill charging the defendant with the same offence may be sent to the same grand jury, with the names of other witnesses endorsed thereon.</p> <p>(State v. Branch, 68 N. C., 186; State v. Brown, 81 N. C., 568, cited and approved.)</p>

<p>Petition for certiorari heard at October Term, 1884, of The Supreme Court.</p>