Volume 95 — North Carolina Reports

Civil ACTION, tried before Qudger, Judge, and a jury, at June Term, 1886, of Hertford Superior Court. There was a judgment for the defendant, and the plaintiff appealed. The facts appear in the opinion.

This was an APPLICATION for the removal of an executor, begun before the Clerk of Greene Superior Court and heard by Connor, Judge, upon appeal, at Chambers, on 16th May, 1886. Devereux Cobb died in July, 1883, in the county of Greene, leaving a last will and testament, which was duly proven, and James H. Cobb, the defendant, qualified as executor thereof, and thereupon took possession of considerable estate.

This was a civil ACTION to recover the possession of land, tried by Graves, Judge, upon a referee’s report and exceptions thereto, at Fall Term, 1885, of Halifax Superior Court.

<p>Civil ACTION, tried at February Term, 1886, of Wilson Superior Court, before Philips, Judge.</p> <p>The action was brought for an injunction against defendants,, to prevent the sale of a steam engine and fixtures, advertised under a claim for balance due the defendants on the purchase price, by virtue of the following paper writing executed by plaintiff:</p> <p>“It is hereby perfectly understood that the title to the engine, saw-mill and fixtures, for which I have this day given my notes-to Messrs. Killebrew & Bullock, amounting to in principal twenty-one hundred dollars, remains in said Killebrew & Bullock, until the whole purchase money is paid. This 29th July, 1881.”</p> <p>The plaintiff alleged fraudulent representations on the part of defendants, inducing plaintiffs to give a much larger price for-the engine and fixture's than they were worth. The answer denied these allegations, and the injunction was vacated and cause continued to the hearing.</p> <p>On the 6th of May, 1885, the defendants made an affidavit, alleging that they were owners of and entitled to the immediate possession of the said steam mill, &c., and gave bond and obtained an order for the delivery of the property to them. And thereupon the plaintiff gave an undertaking, with J. J. Sharpe as surety, in the sum of $3,000, conditioned for the delivery of the property to defendants, if such delivery be adjudged, and that the defendants should be paid such sums as may, for any cause, be recovered against the plaintiff in this action.</p> <p>No complaint or answer was filed in the claim and delivery action, and no summons issued, save that in plaintiff’s original action/and no reference made to it in the pleadings.</p> <p>At Fall Term (November 2, 1885), the following order was made at the instance of the defendants: “On motion, with consent of plaintiff and J. J. Sharpe, surety to the bond filed by plaintiff, it is ordered by the Court, that this cause be referred to Thomas S. Kenan and Thomas H. Battle, as arbitrators. After giving due notice to the parties, said arbitrators shall hear said cause, and make their award, and file the same with the Clerk, and upon said a,ward judgment shall be entered as of next Term.”</p> <p>On the 17th of December, 1885, the arbitrators heard the case, and reported: “The arbitrators do find that the plaintiff is indebted to the defendants in the sum of $70.22, with interest at 8 per cent, from 16th of January, 1884, and in the further sum of $700, with interest at 8 per cent, from 29th of July, 1881, which said sums the defendants are entitled to recover from the plaintiff, together with the costs of this action.”'</p> <p>At February Term, 1886, the attorneys for the defendants, upon the coming in of the report, moved for judgment against the plaintiff and J. J. Sharpe, his surety on the claim and delivery bond, for the amount of the debt found to be due from plaintiff and for foreclosure by sale of the steam engine, etc. To this the plaintiff’ objected, as transcending the award of the arbitrators. After argument, the Judge made this further order, to-wit: “The arbitrators having filed an award fixing only the amount due to the defendants from the plaintiff, it is re-submitted, by consent of the attorneys, to the arbitrators, to find all other issues of law and of fact involved in this case, and to file their report at as early a day as practicable.”</p> <p>On the 8th of February, 1886, (second week of the term) the arbitrators filed the following report, to-wit: “That the defendants are entitled to judgment for a sale of the property described in the pleadings, the proceeds thereof to be applied to the payment of said indebtedness found due the defendants in former award, and to judgment against G. W. Robbins and J. J. Sharpe in the sum of $3,000.00, to be discharged upon the payment of any sum remaining due to defendants, after the appropriation of the proceeds of said sale to said indebtedness and costs of action.”</p> <p>Upon the coming in of which report, by judgment of the Court, the report was confirmed, and sale of the property ordered, and from this judgment the plaintiff appealed to the Supreme Court.</p> <p>Before the entry of said judgment and in opposition thereto, the plaintiff excepted to said award, for that the arbitrators had,, in directing judgment for sale of the property described in the^ pleadings, and judgment against Robbins and Sharpe in the sum of $3,000, to be discharged as therein set forth, exceeded their power under the submission; and for that the said award and judgment are erroneous in passing upon matters not in issue..</p>

Issues arising upon Special Proceeding, tried before Gudger, Judge, at Spring Term, 1886, of Perquimans Superior Court. This is a Special Proceeding, brought in the Superior Court of the County of Perquimans, by the plaintiff, the owner of a tract of lowland, to obtain the right and authority to drain the same by cutting and keeping in repair ditches through the lands of the defendants, respectively, as allowed by The Code, chapter 30, vol. 1.

<p>Deed — Defective Description — Levy—Tax Sale — Parol Evidence.</p> <p>1. Parol evidence may be admitted to fit the description to the thing intended to be conveyed in a deed, but not to add to or enlarge its scope.</p> <p>2. Where the descriptive words in a deed are so indefinite that in order to give it effect something must be added, the conveyance is inoperative.</p> <p>3. These rules are applicable to the assessment, levy, notice, &c., as well as the deeds, made in selling lands for taxes; and these defects being in essential matters, will not be cured by a second conveyance in which an accurate description of the land is made.</p> <p>{Farmer v. Batts, 83 N. C., 387, cited and approved.)</p>

This was a civil ACTION, tried at Fall Term, 1885, of Hyde Superior Court, before Shepherd, Judge.

This action began before a Justice of the Peace, who gave judgment for the defendant upon the merits, and the plaintiff appealed to the Superior Court.

This ACTION was tried before Philips, Judge, at Spring Term, 1886, of Nash Superior Court. The plaintiff’s action is to recover possession of a tract of land in possession of the defendant, and the material facts were: 1.

<p>Excusable Neglect — Mistake—• Vacating Judgment.</p> <p>X. Upon an application to set aside a judgment for mistake, inadvertence, surprise -or excusable neglect, the Court should specifically find the essential facts.</p> <p>2. What is mistake, inadvertence, surprise or excusable mistake is a question of law, and this Court will, upon appeal, review an erroneous judgment thereon.</p> <p>3. Where the Court has ascertained the facts, and exercised the discretion conferred by the statute — The Code, §274 — by granting or refusing the relief sought, the Supreme Court will not review its action.</p> <p>{Branch v. Walker, 92 N. C., 91; Foley v. Blank, Id., 476; and Beck v. Bellamy, 93 N. 0., 129, cited and approved).</p>

This ivas rule upon C. E. Griffin, to show cause why he should not be attached for an alleged contempt of the Court, heard by Connor, Judge, at Chambers, in Wilson, on the 31st of July,. 1886. In the action pending between the parties, an interlocutory order was made for the issue of an injunction, restraining the defendants from joining the walls of a store which they were then-putting up, to those of the plaintifts.

This was a special proceeding, commenced in the Superior Court of Wilson county, on the 24th of August, 1881, for license to sell for assets, certain real estate, which it. was alleged, the intestate… Held: and gave judgment accordingly. The plaintiff appealed.

Civil ACTION, tried at March Term, 1886, of Duehah Superior Court, before Clark, Judge. The plaintiff alleged, that he agreed with the defendant to build for the defendant a house for the sum of $1,100.00, and in pursuance thereof, proceeded to erect the house; and the defendant took possession thereof.

Civil ACTION, tried before Gilmer, Judge, at December Term, 1885, of the Superior Court of Guilford. Held: that there was no evidence to go to the jury, and to this ruling by the Court, the plaintiff excepted, and submitted to a nonsuit, and appealed.

The action was tried before Shepherd, Judge, at February Term, 1886, of CraveN Superior Court, upon a petition filed by defendant for an allowance for betterments.

<p>Civil action, tried before Gfudger, Judge, at Spring Term, 1886, of Hertford Superior Court.</p> <p>The plaintiff is the widow of John H. Kiff, deceased, and she brought this action before a Justice of the Peace, to recover from the defendant the sum of $173 and interest, a debt which she alleges was duly assigned to her as part of her year’s support.</p> <p>There was judgment for her, and the defendant appealed to the Superior Court, where she again obtained judgment, and the defendant appealed, to this Court.</p> <p>The following are the material facts :</p> <p>On the trial, the plaintiff testified that her husband, from the time he was twenty-one years old, up to about the first of January, 1884, lived with the defendant, and worked on his farra as a laborer — a period of about four years — and his services were worth $10 per month. And to show that his wages had been assigned to her, she offered in evidence the record of the allotment of her year’s support. The defendant objected to this evidence. Objection overruled, and defendant excepted. This record was then read in evidence.</p> <p>The plaintiff next offered to show, by herself, that the commissioners intended, in allotting the year’s support, to allot as a part thereof, the wages due as aforesaid, and that was what they meant when they allotted to her “labor for 3-|- years, $173.00.” The defendant objected, but the Court overruled the objection, and admitted the evidence, and defendant excepted.</p>

Motion fey the plaintiff to dismiss the defendant’s appeal, heard at October Term, 1886, of the Supreme Court. The facts appear in the opinion.

Special PROCEEDING, heard on appeal before Gfudger, Judge, at Spring Term, 1886, of Pasquotank Superior Court. The Proceeding was instituted before the Clerk of the Superior Court of Pasquotank county, to procure for the plaintiff, under its charter, (chapter 18, Laws of 1869-70 and acts amend-atory thereof), the condemnation of certain lands for the use of the plaintiff.

CivrL ACTION, tried before Gudger, Judge, and a jury, at March Term, 1886, of the Superior Court of Pasquotank county. The complaint alleges the non-payment of a promissory note due them by defendant, a copy whereof is set out, in the sum of $69617qS0-, hearing date the 23d day of December, 1881, and maturing ninety-seven days thereafter: and the plaintiffs demand judgment therefor.

Civil action, tried before Shepherd, Judge, at February Term, 1886, of Craven Superior Court. The action was heard upon complaint and demurrer, and his Honor overruled the demurrer, and the defendant appealed.

This was a motion by the plaintiffs, to reinstate an appeal, dismissed at the February Term, 1886, of this Court. The motion was entered at the last Term, and heard at the October Term, 1886. The facts appear in the opinion.

<p>This was an action for the recovery of a horse, and damages, tried before Avery, Judge, at the Fall Term, 1885, of Lenoir Superior Court.</p> <p>The plaintiff alleged that he was the owner, and entitled to the possession of the horse, of .which he had been wrongfully deprived by the defendant.</p> <p>The defendant denied these allegations.</p> <p>The plaintiff testified that the horse was his property, and had been taken unlawfully from his possession, by the defendant Lassiter; that the defendant had signed a claim and delivery bond, as his surety, in an action brought by him against one Carman ; that nothing was said by him or Lassiter about delivering the horse in controversy to defendant, when he signed the bond for him, and the horse was not then in his (Lassiter’s) stable.</p> <p>Lassiter testified that the plaintiff applied to him to become his surety on a claim and delivery bond, and at the time, having his horse in his stable to be fed, the plaintiff said to him, “you take this horse (pointing to the horse in controversy), and keep him till the suit is decided”; that he did not, at that time, agree to become surety, but they went to the store of Stanly, about one hundred yards off, and there he and Stanly signed the bond, and he then loaned the horse to the plaintiff, and he might have said, he loaned him to plaintiff until the suit was decided.</p> <p>Stanly testified, that plaintiff' and defendant came into his store, and plaintiff said he wanted him and Lassiter to sign his bond, and he would turn over the horse in controversy, and if the suit should go against him, and his sureties have the costs to pay, that he and Lassiter could sell the horse and pay it; that they thereupon signed the bond, and after it was signed, Lassiter said to plaintiff, “ we will loan you this horse.”</p> <p>Carman testified to the same effect. He stated, that plaintiff asked Lassiter to go on his bond; Lassiter said, “ I don’t want to go on anybody’s bond unless I am secured.” McCoy said, “I will pawn my horse and buggy;” the horse was then in the stable. Lassiter then went up to Stanly’s store and said to Stanly that plaintiff proposed to pawn his horse and buggy. Stanly said “all right,” and they signed the bond; afterwards Lassiter turned around and said to plaintiff, as they went out, “that he would loan him the horse.”</p> <p>The Court instructed the jury:</p> <p>1. That it appeared from the testimony, that the title to the horse was in the plaintiff, when the defendant and Lassiter signed the bond, in the case of McCoy v. Carman.</p> <p>2. That in no view of the testimony, could the jury find that the horse was put in pledge to Lassiter, or that the legal title passed from McCoy to Lassiter, and the jury must find the first issue in favor of plaintiff. Defendant excepted. Verdict and judgment for plaintiff, and defendant appealed.</p>

Civil action, tried before Gudger, Judge, and a jury, at March Term, 1886, of Currituck Superior Court. There was a verdict and judgment for the plaintiffs, and the defendant appealed. The facts are stated in the opinion.

<p>Appeal from a Justice’s Court, tried on a case agreed, before Gudger, Judge, at Spring Term, 1886, of Hertford Superior Court.</p> <p>The action was on a quantum meruit, for services rendered the defendant by the plaintiff.</p> <p>Plaintiff was hired by defendant on February 20th, 1885, to work on defendant’s farm for the remainder of the year, at ten dollars a month, and it was agreed that the plaintiff’s contract was an entire one for the remainder of the year. He worked under the contract until the 20th of September, 1885, and left without legal excuse. The defendant sustained no damages in consequence of plaintiff’s leaving.</p> <p>The value of plaintiff’s services from the time he commenced work until lie left, was seventy dollars. He has received from defendant twenty dollars.</p> <p>Upon these facts, the Court gave judgment for plaintiff', and defendant appealed.</p>

Civil action, for the possession of land, tried before Cadger, Judge, at Spring Term, 1886, of Hyde Superior Court. There was a judgment for the plaintiff, from which the defendant appealed. It appears, that Lorenzo I). Williams died in the year 1874, seized and in the actual possession of the lands described in the complaint, leaving surviving him, his widow, the defendant, and' one daughter, Parley Williams, his sole heir-at-law, upon whom the land descended.

Civid action, to recover land, tried before Gudger, Judge, at June Term, 1886, of Pasquotank Superior Court.

Civil action, heard on appeal from a Justice of the Peace, before Gudger, Judge, at March Term, 1886, of the Superior Court of Currituck county. There was a verdict and judgment for the plaintiff, and the defendant appealed. The facts are fully stated in the opinion.

This was a civil ACTION, tried before Shepherd, Judge, and a jury, at Spring Term, 1886, of Halifax Superior Court, upon the following ease agreed, to-wit: 1.

Civil ACTION, tried before Shipp, Judge, and a jury, at Fall Term, 1886, of Pasquotank Superior Court. ' At June Term, 1886, a judgment by default and inquiry was entered, and at the next subsequent term, the Court proceeded to execute the inquiry, and submitted to the jury the following issues: 1. “What amount is due to plaintiff for placing defendants’ lumber on vessel “Mogee” at Elizabeth City ? Answer: $36. 2.

Civil ACTION, tried before Connor, Judge, upon exceptions to the report of a referee, at Fall Term, 1885, of FrankliN Superior Court. There was a judgment for the defendant, and the plaintiffs appealed. The facts appear in the opinion.

Civil action, for the possession of land, tried before Boykin, Judge, at Spring Term, 1886, of Bladen Superior Court. It appears that John Cashwell died prior to the month of April, 18812, leaving a last will and testament, which was proven in that month.

<p>Civil action, tried before Clark, Judge, at September Term, 1886, of the Superior Court of New Hanover County.</p> <p>For the reasons set out in the opinion, the ease was remanded.</p>

This was a civil ACTION, heard by Gilmer, Judge, at February Term, 1886, of the Superior Court of Duplin County. Held: that the complaint was properly verified, and that the defendant could not file an unverified answer. The defendant declined to verify his answer, and his Honor gave a judgment by default final against him, from which he appealed.

<p>Jurors — Challenge—Boundary—Natural Objects — Judgment in the Supreme Court.</p> <p>1. A challenge to a juror must be made before the jury is empaneled, and if not made in apt time, it is a matter in the discretion of the trial -Judge whether he will set aside the verdict.</p> <p>2. So where one o£ the jurors was related to the plaintiff, but no objection was made on this ground until after verdict, the refusal of the trial Judge to set aside the verdict cannot be assigned as error on the appeal.</p> <p>3. As a general rule, natural objects called for in a deed will govern course and distance, but there are exceptions to the rule, one of which is, where it can be proved that a line was actually run and marked and a corner made, such line will be takeu as the true one, although the deed calls for a natural object, not reached by such line.</p> <p>4. Ordinarily, the number of acres contained in a deed constitutes no part of the description, but where the description is doubtful, it may have weight as a circumstance in aid of the description, and in some eases, in the absence of other definite descriptions, it may have a controlling effect.</p> <p>5. Where the judgmeut was rendered in the Superior Court against three defendants, only one of whom appealed, the Supreme Court, upon affirming the judgment, will remand the case, in order that the judgment may be enforced against all of the defendants.</p> <p>(Statev. Perkins, 66 N. C., 126; Statev. Basis, 80 N. C., 4L2; Hartsfteld v. West-brook, 1 Hay., 288 ; Sandifer v. Foster, Ibid, 169 ; Cherry v. Slade, 3 Murph., 82 ; Campbell v. McArthur, 2 Hawks, 33 ; Cooper v. While, 1 Jones, 3S9 ; Spruill v. Dauenport, Busb., 134; Reed v. Schenck, 2 Dev., 415 ; Rogers v. Mabe, 4 Dev., 180 ; Harrell v. Butler, 92 N. C., 20 ; McPhaul v. Gilchrist, 7 Ired., 169, cited and approved).</p>

Civil action, for the recovery of land, tried before MaoRae, Judge, and a jury, at Fall Term, 1886, of Davie Superior Court.

Civil action, tried before Boykin, Judge, and a jui’y, at September Term, 1886, of DavidsoN Superior Court. Held: that admitting the faets set out in said second defence of the answer to be true, defendant was not entitled to be subro-gated to the rights of Jno. S. Henderson in the prior mortgage. Defendant excepted.

This was a civil action, tried before Boykin, Judge, at Fall Term, 1885, of Iredell Superior Court, upon the following case agreed between the parties: 1. That Percephal Campbell died in Iredell county in the year 1854, leaving a last will and testament, which was duly admitted to probate at the August Term, 1854, of the late Court of Pleas and Quarter Sessions for said county. A copy of this will is set out below.

<p> Homestead and Personal Property Exemptions. </p> <p>1. The personal property exemption exists only during the lile of the homesteader, and after his death his widow has no right to have it allotted to her.</p> <p>2. A widow who has no homestead of her own, is entitled to have one allotted to . her out of the lands of her deceased husband, even although no homestead was allotted to him during his life.</p> <p>{Johnson v. Gross, (56 N. C., 167 ; Watts v. Leggett, 66 N. C., 197; Branch, ex parte, 72 N. C., 106, cited and approved).</p>

This was a civil ACTION, tried before Clark, Judge, and a jury, on appeal from a judgment of a justice of the peace, at Fall Term, 1886, of DupliN Superior Court. The action was brought for the recovery of the penalty prescribed in §1967 of The Code.

This was a civil ACTION, tried before Shipp, Judge, and a. jury, at Fall Term, 1886, of Camden Superior Court. The plaintiff complained that the defendants, under the-avowed purpose of searching for the body of an unknown man, alleged to have been murdered during the late war, and buried upon her plantation, obtained. permission from the plaintiff' in June, 1885, to search for the body.

Controversy submitted without action, heard by MacRae, Judge, at November Term, 1885, of Cumberland Superior Court. On the 10th day of March, 1884, the plaintiff’s intestate and the defendant entered into a copartnership under written articles.

Civil ACTION, tried before Clark, Judge, at September Term, 1886, of DupliN Superior Court. His Honor gave a judgment by default final upon the following facts: The complaint was verified, and the following is a copy of the material parts thereof, necessary to be set forth here: “11. That on or about the 21st day of September, 1885, they sold to the defendant, I). L. Farrior, a large lot of goods, wares and merchandise, and that the same was duly received by him. “ III.

<p>Civil action-, tried before Shepherd, Judge, and a jury, at August Terra, 1886, of Edgecombe Superior Court.</p> <p>The plaintiff in substance alleges, that the defendant, being the owner of a railroad, and intending to extend it to points east and west of it, through its agents, its Vice-President aud Superintendent, employed him as Civil Engineer for the company, to act and serve them as its Engineer for an indefinite period of time. That he accordingly served it in that capacity from the 9th day of March, 1883, until the 29th day of January, 1884. That although he was not constantly actively engaged all that time, he was in its employment, actively engaged in making surveys, maps, examinations, &c., &c., a great part of the time, which maps and charts, he, as its Engineer, sent to its President, in New York, and all the time he was under its direction and at its command, to do any service of the nature of his employment; and that his services were reasonably worth two hundred dollars per month. He further alleges, that the President aud Vice-President of the company resided in New York City; that the latter often visited the line of the said road, and when he did so he conducted and controlled its management and made contracts for it. Other facts evidential in their nature, are stated in the complaint, apparently as matters of inducement, but they are unnecessary aud might properly have been omitted; they are simply redundant matter in the pleading.</p> <p>The defendant denies broadly the material allegations of the complaint, and specially, that it employed the plaintiff as its engineer. It also denies the authority of the Vice-President and Superintendent to employ the plaintiff as its civil engineer, and alleges that the only authority of its Vice-President “to manage, control or make contracts, is such only as is given by the bylaws of the defendant, or by the Board of Directors, or the Executive Committee of said Board, under the authority of said bylaws,” and that these authorities never empowered the Vice-President, or any other person, to appoint the plaintiff as such engineer. It alleges that the plaintiff was employed, from time to time, to do certain particularly specified services — such as such engineers do — which he did, and that he was fully paid for the same; it denies that he was ever employed as its regular engineer, or for a certain or an indefinite period of time.</p> <p>The following is a copy of so much of the case settled on appeal as is necessary to be set forth here:</p> <p>“There was evidence for the plaintiff, tending to show that he was a civil engineer by education, and had surveyed for and directed the construction of more than one railroad; [that on. the 9th day of March, 1883, one Dorseh, who was the Superintendent of the defendant road, in the presence, and with the concurrence of H. J. Rogers, who was its Vice-President and one of its Directors, appointed plaintiff engineer of defendant company].</p> <p>“Exception No 1. — The testimony as to the appointment of plaintiff which is in brackets, was objected to by defendant, and admitted by the Court. The defendant excepted. At public meetings of the citizens held along the line where the plaintiff was well and favorably known, [it was publicly proclaimed by the Vice-President, Rogers, that the plaintiff was the chief engineer of the road],</p> <p>“Exception No. 2 — The foregoing in brackets was objected to by defendant, and he excepted to its admission.</p> <p>“That in the canvass so conducted, a large amount, ($85,000) in money subscriptions was obtained ; that under the direction of the Vice-President, the plaintiff made surveys of the line from Rocky Mount to Nashville, with all necessary drawings and estimates of the cost of construction, which was forwarded to the President of the road, in New York; that under the direction of the Vice-President, he made a survey from Williamston to Jamesville, with a lengthy report of the resources of the country along and east of that line, which he forwarded to’ the President, in New York City.</p> <p>“The plaintiff also introduced evidence (the defendant objecting) that many of the payments credited in plaintiff’s complaint were made by the local Treasurer, and his receipts given as Chief Engineer were, at the close of each month, forwarded to the President of the company, in New York City, and no objection, made by the authorities there to such payments.</p> <p>“Exception No. 3. — The defendant excepted to the admission of this testimony.</p> <p>“It was in evidence, that other payments, credited in plaintiff’s complaint, were made by drafts in his favor, drawn by the Vice-President upon Baltzer and Litchenstein, of New York City, who. were the President and General Treasurer of defendant company, which were paid upon presentation; that under the direction of the Superintendent, he examined and reported the condition of the railroad bridge across the Tar River, at Tarboro; that while not actively engaged upon some work of defendant company, he regularly reported to the Superintendent for employment, and was recognized by the Vice-President and Superintendent as Engineer of the defendant company, up to the date of his resignation, 29th January, 1884.</p> <p>“It was in evidence that the President, Vice-President and Directors of the defendant company-lived in New York, where was also the general business office; that the President was rarely in North Carolina, but twice during the years 1882 and 1883; that the road was actually managed and controlled by the Superintendent and Vice-President when the latter was in North Carolina, where he frequently was; that the plaintiff had no knowledge of the by-laws of defendant as to appointment of an Engineer. There was evidence that the plaintiff’s services were worth $2,500 per year, and that he had received over $1,000 for his services.</p> <p>“The by-laws of the defendant company were put in evidence by the defendant, and it was shown by them that the appointment of Chief Engineer could only be made by the President, with the approval of a majority of the directors, and that he was to receive a fixed salary. It was conceded that no such appointment was made under these by-laws.</p> <p>“The Court submitted the following issues to the jury :</p> <p>“1. Did the plaintiff render services to the defendant as Engineer ?</p> <p>“2. What is due him on account of such services?</p> <p>“The defendant asked the Court to submit the following issue to the jury :</p> <p>“ Was the plaintiff employed as a regular or permanent Engineer of the company ?</p> <p>“This the Court declined to do, and the defendant excepted.</p> <p>“The defendant asked the Court to charge the jury :</p> <p>“1. That there was no competent evidence to show that the plaintiff was appointed Chief or Regular Engineer.</p> <p>“2. That there was no evidence that the company ever ratified any appointment as Chief or Regular Engineer.</p> <p>“ 3. That under the by-laws, the President alone cannot appoint a Chief or Regular Engineer, without the approval of the Directors.</p> <p>“4. That the Vice-President or Superintendent could make no appointment as claimed by plaintiff.</p> <p>“ 5. That there is no evidence that Rogers ever acted as President.</p> <p>“6. That plaintiff is only entitled to recover the value of services actually rendered.</p> <p>“His Honor charged the jury, that in this action, the office of Chief Engineer could only be created by the President and Board of Directors, and this not being shown, he is not entitled to recover as such. But, the plaintiff says, while he may not have been regularly appointed, still he was employed to act as such by the Superintendent, and in the presence of and with the concurrence of the Vice-President and Director Rogers ; that in pursuance of this employment, he performed certain work, and reported regularly, and was at all times ready and willing to render services as such ; that his employment as permanent Engineer was recognized by all of the officers of the company who were in North Carolina and engaged in the operation of the road; that he was paid as Chief Engineer by the local Treasurer and Secretary, and statements containing such payments as Chief Engineer, after examination by the Superintendent here, and were sent to the President, who made no objection to the same.</p> <p>“The Court charges, that if the President and Board of Directors resided in New York, leaving the active management and control of the road to the Superintendent here, and such Superintendent employed the plaintiff permanently to render the services of an Engineer or Chief Engineer, and the plaintiff acted and served as such, was recognized assuch by all of those operating the road in North Carolina, and such employment was known to the President and other officers, and acquiesced in or ratified by them, then the plaintiff would be entitled to recover the value of his services rendered as such Engineer, provided he discharged his duties as such. If employed permanently, you will give .the plaintiff the value of such employment and services while so employed. If not employed permanently, you will give the plaintiff the value of the services actually rendered.</p> <p>“ His Honor gave charges Nos. 1, 3, 4 and 5, and declined to give Nos. 2 and 6.</p> <p>“To the first issue the jury responded “yes.”</p> <p>“ To the second they responded $2,000, less $1,032 paid plaintiff by defendant.”</p> <p>There was a judgment on the verdict for the plaintiff, and the defendant appealed.</p>

Civil ACTION, heard on demurrer, by Shipp, Judge, at September Term, 1886, of Currituck Superior Court.

Civil action, heard upon exceptions to the report of a referee, by MaeBae, Judge, at December Term, 1885, of Richhond Superior Court. This is an action brought by creditors against the principal defendant, as executor of the will of William L. Covington, deceased. In the course of the action, an account was ordered to be taken. The referees took and stated an account, and made report thereof, to which the defendant filed numerous exceptions.

<p>Appeal — Assignment of Error — Master and Servant — Contributory Negligence.</p> <p>1. Where no errors are assigned in the case stated on appeal, and nothing appears in the record, either in terms or by implication, which shows that the appellant was not satisfied with the judgment, it will be affirmed.</p> <p>3. The Code, §412, par. 3, does not allow errors to be assigned for the first time on the hearing of the appeal.</p> <p>3. By Merrimon, J. This section of The Code (412) provides for the entries to be made on the record in the course of the trial, and motions subsequent thereto, in order that appellant may properly present his case to the appellate Court, and has no reference to the assignment of error in the Supreme Court for the first time.</p> <p>4. A master is bound to furnish to his servant, tools and appliances reasonably good and proper for the work the servant is to do, and to do everything essential to the proper prosecution of the work, without exposing the servant to any unnecessary danger, but his is not a guarantor of his safety, nor is he bound to protect him against his own neglect.</p> <p>5. Where a section-master on a railroad was injured by using a dump car, which it was necessary for him to use in the prosecution of his work, after he knew that it was out of order and in a dangerous condition, although he had been ordered by his superior to get another car, It was held, that the injury was the result of his own carelessness, and that he could not recover.</p> <p>6. If, in such case, both the master and servant had known of the dangerous condition of the car, and the servant had continued to use it and been injured in consequence, he could not recover; but it would be otherwise, if the servant had reported the condition of the ear to the master, and he had promised to have it repaired promptly, and the servant had used it for a reasonable time, while waiting for the repairs to be made. 7. What constitutes negligence, or contributory negligence, is a question of law to be decided by the Court, and should not be left to the jury.</p> <p>(Fry v. Currie, 91 N. C., 436; Lytle v. Lytle, 94 N. C., 522; Lost v. Lost, 87 N. C., 477; Crutchfield v. .The Railroad, 76 N. C., 300 ; Johnston v. The Railroad, 81 N. C., 458; Herring v. The Railroad, 10 Ired., 402 ; Biles v. Holmes, 11 Ired., 16; Heatheoclc v. Pennington, Ibid., 640 ; Smith v. Railroad, 64 N. C., 238; Anderson v. Steamboat Co., Ibid., 399, cited and approved).</p>

<p>Appeal — Confession of Judgment.</p> <p>1. No particular assignment of error is necessary, when the appeal is taken from a judgment pronounced on an agreed statement of facts.</p> <p>2. A judgment confessed under Section 571 oí The Code must contain a verified statement of the facts and transactions out of which the indebtedness arose. Where the affidavit of the debtor set out that he was justly indebted to the judgment creditor in a certain amount, but did not embrace the account which was filed, It was held, not a compliance with the statute, and that the judgment was void.</p> <p>(Alexander v. Davidson, S4 N. C., 621, cited and approved).</p>

Civil action, tried before Shepherd, Judge, and a jury, at Spring Term, 1885, of OraNge Superior Court. There was a judgment for the defendaut and the plaintiff appealed. The facts appear in the opinion.

<p>Civil ACTION, tried on appeal from a justice of the peace, before Clark, Judge, and a jury, at October Civil Term, 1885, of Wake Superior Court.</p> <p>The action is for the recovery of the value of a bale of cotton, converted by the defendants to their own use; and on the trial before the jury, they rendered the following special verdict:</p> <p>“The jury find as a special verdict, that the defendants bought three bales of cotton, raised by the mortgagor Pearce on his farm in Franklin county during the year 1883; and the jury further say, that if the Court is of opinion that the mortgage from Pearce to Woodlief of February 20th, 1883, and registered February 23d, 1883, in Franklin county, is valid as against the defendants, they return their verdict in favor of the plaintiff, and assess his damages at forty-five dollars, with interest thereon from November 7, 1883, at 8 per cent, per annum. If the Court should be of opinion that said mortgage is invalid as against the defendant's, they return their verdict in favor of the defendants.”</p> <p>The mortgage deed referred to and made part of the verdict, is in these words : “On or before the 1st day of November next, I promise to pay M. Woodlief, of Youngsville, or order, forty-five (45) dollars, for value received in fertilizers delivered to me by M. Woodlief, agent for said-. It is agreed that payment may be made with 450 lbs. clean white lint cotton, of the first picking, not below the grade of middling, for each ton, to be delivered to their agent at Youngsville depot; Provided it is so delivered in merchantable order, on or before the 1st day of November, 1883 ; after that date, the option expires, and payment will be made in currrency, at the rate of forty-five dollars per ton, with interest at 8 per cent, after maturity.</p> <p>“In consideration of the contract made by-to deliver said fertilizers, and as security for this obligation, the maker of this note hereby gives M. Woodlief a lien on all crops raised on lands owned or rented by me, during the present year, pursuant to provisions of the acts of the Legislature in such cases made and provided; and also agrees to pay all costs- and charges incurred in enforcing this lien and collecting the amount due. And as a further security, I do hereby convey to him these articles of personal property, to-wit: one mule and one horse. But on this special trust, That if I fail to pay said debt on or before the first day of November, 1883, then he may sell said property, or so much thereof as may be necessary, by public auction for cash, first giving ten days’ notice at three public places, and apply the proceeds of such sale to the discharge of said debt, and pay any surplus to me.</p> <p>“ Witness, my hand and seal, this 20th day of Eeb. 1883.”</p> <p>The Court ruled that the instrument was inoperative; first, as an agricultural lien under the statute, because it attempts to secure a pre-existing debt; and secondly, as a mortgage at common law, for the reason that there are no conveying words, nor authority conferred to take possession of the property on default, and for the further reason, applicable to the instruments in either aspect, that it fails to describe the land on which the cotton was to be raised. Judgment being accordingly rendered for the defendant, the plaintiff appealed.</p>

This was an action to recover a horse, cart and harness, tried before Connor, Judge, at April Term, 1886, of WayNE Superior Court. As ancillary to the action, the plaintiff, at the time of suing out the summons, obtained a requisition for the delivery of the property, issued to the Sheriff of Wayne county, who, in pursuance of said order, seized the said property and delivered the same to the plaintiff.

<p>Civil ACTION, tried before MctoRae, Judge, at Fall Term, 1885, of BladeN Superior Court.</p> <p>The action was heard upon a case agreed, and the facts are as follows:</p> <p>The plaintiff’s action is based upon a certain paper writing of which the following is a copy :</p> <p>Fayetteville, N. C., Dec. 5, 1882.</p> <p>$205.00.</p> <p>Sixty days after date, I promise to pay to A. Moore, or order, two hundred and five dollars, for value received, negotiable and payable at the People’s National Bank, of Fayetteville, N. C., with interest after maturity at the rate of eight per cent, per annum, until paid, for money loaned.</p> <p>[Signed] N. A. Stedman, Jr.</p> <p>The above was in the common printed form of paper used by said bank; upon the back of said paper writing are written the names of the defendants, Jno. A. McDowell and A. Moore, endorsed in blank.</p> <p>It is agreed that N. A. Stedman, Jr., is the principal obligor, and that the defendants, Jno. A. McDowell and A. Moore, were endorsers to the within named bank, at the request and for the accommodation of the said N. A. Stedman, Jr., in order to enable him to borrow money from that bank, and their endorsement and contract as such was solely for that purpose.</p> <p>That this note was not presented or offered at said bank for discount, or if so offered or presented, it was refused, and after-wards the said N. A. Stedman, Jr., without the knowledge or consent of the endorsers (the defendants), sold the same to, or discounted it with the plaintiff’s intestate, Jas. McK. Mulford, who purchased it for value from the said N. A. Stedman, Jr.</p> <p>That the defendants, McDowell and Moore, accommodation endorsers for said Stedman, had no knowledge of the sale of the note to the plaintiff’s intestate by said Stedman, until a short time before the bringing of this action, nor did they agree with the plaintiff’s intestate that the same might be sold to him by said Stedman.</p> <p>That plaintiff’s intestate had no notice of any understanding or agreement that the note should be discounted by said bank other than what appears on the face of the note.</p> <p>Upon the foregoing facts agreed, it being further agreed by counsel that the Judge might take the papers and decide the matter at Cumberland, the presiding Judge being of the opinion that there is nothing upon the face of the note to give notice to the purchaser for value before maturity, of the understanding between the maker and endorsers that the said note was to be negotiated only at the People’s National Bank, but that the clause making it negotiable and payable at said Bank was collateral matter, which might have been introduced for the accommodation of the holder, and not affecting the validity of the note, it is adjudged that the plaintiff recover of the defendants the sum of two hundred and five dollars, with interest at eight per cent, per annum, on the same from February 8th, 1883, together with the costs of this action, to be taxed by the Clerk.</p> <p>Prom which judgment the defendants appeal to the Supreme Court.</p>

This was an Ex parte PETITION to direct the payment of certain moneys, heard before Clark, Judge, at September Term, 1886, of the Superior Court of New Hanover. The facts necessary to an understanding of the questions presented by the appeal are fully stated in the opinion.

Civil action tried, before Boykin, Judge, at February Term, 1886, of RICHMOND Superior Court. A jury trial was waived, and by consent the Court found the the facts as follows : The summons in this case issued on the 3d of December, 1881. Jane Leach qualified as Executrix of Angus Leach, who was a resident of and died in Richmond county. Jane Leach is a resident of Richmond county.

Civil ACTION, tried before MacPae, Judge, at Fall Term, 1885, of BladeN Superior Court. The plaintiff alleged that he and the intestate of the defendant, in 1871, entered into a copartnership in the general mercantile business, to be carried on in the name of the intestate; that such business was so conducted for several years, until the death of the intestate, when the defendaut took into his possession all of the partnership assets, and refused to account with him therefor.

<p>Civil ACTION, tried before Macliae, Judge, at Fall Term, 1886, of Surry Superior Court.</p> <p>Job Worth died iu 1875, having executed a will in due form to pass his estate, which was duly proved, and the executors therein named having renounced, letters of administration with the will annexed issued to the defendant, John L. Worth.</p> <p>The will is in form as follows:</p> <p>I, Job Worth, of the county of Surry, in the State of North Carolina, being of sound mind and disposing memory, do make and ordain the following as my last will and testament, viz.:</p> <p>I give and bequeath to my beloved wife, Sally, the sum of eighteen hundred dollars, to be paid to her in cash or in cash bonds, at her option, out of my estate. At our marriage, she, my wife, was possessed of some estate, which I have never reduced to possession, and to which I lay no claim whatever, but if it should be adjudged or decreed that I have any interest whatever therein, I hereby will, bequeath and devise the same to her forever in addition to the eighteen hundred dollars above mentioned, the whole of both sums to be her absolute property forever. I furthermore will, devise and bequeath to her forever, my household and kitchen furniture, to be her absolute property. Furthermore, I will, devise and bequeath to her one-third part of all my real estate for and during her natural life.</p> <p>I will, devise and bequeath to my daughter, Phoebe B. Davis, wife of B. F. Davis, and to my son, David W. Worth, the other two-thirds of all my real estate, to be theirs absolutely and forever, and at the death of my beloved wife, I will, devise and bequeath to my daughter, Phoebe B. Davis, and my son, D. W. Worth, the land herein willed to my wife.</p> <p>I further direct and require that after my estate shall be settled, then any and all portions of the same shall be equally divided between my beloved wife, Sally, my daughter, Phoebe B. Davis, and my son, D. W. Worth, share and share alike, D. W. Worth first accounting to my estate for the sum of one thous- and dollars which he has received in excess of the other children, by way of advancements.</p> <p>Lastly, I hereby appoint and constitute my son-in-law, B. F. Davis, and my brother-in-law, W. R. Hollinsworth, my executors to this my last will and testament.</p> <p>The testator owned at his decease considerable real estate lying in Surry county, and much personal estate, consisting of farm stock, agricultural implements, household and kitchen furniture, and of accounts, notes and bonds.</p> <p>Since the institution of this action, an account of the administration has been taken, and it appears therefrom that the entire personal estate has been expended in payment of debts, except the household and kitchen furniture which have been delivered to the plaintiff Sally, under the first clause of the will. There is nothing left in the hands of the administrator with which to pay the $1,800, legacy, unless the real estate is chargeable therewith, and it must be sold to raise a fund for the purpose.</p> <p>The present action was commenced on the 24th day of October, 1881, against the administrator and the other defendants,, legatees and devisees, for an account of the personal estate, and, if found insufficient, for a judgment declaring the $1,800 legacy a charge upon the land other than the life estate devised to the plaintiff, and. for a sale of so much thereof as may be necessary for its discharge.</p> <p>Upon these facts the plaintiff contended:</p> <p>1. That she was entitled to have allotted to her one-third in value of all the real estate of the tesiator for life.</p> <p>2. That she was entitled to have so much of the residue of the land sold as might be necessary to pay to her the legacy of $1,800, with interest thereon from the time it became due and payable to her by the administrator.</p> <p>The defendants contended:</p> <p>1. That the plaintiff was not entitled to have her legacy of $1,800 paid out of the real estate, but that it was only a charge on the personal estate.</p> <p>2. That if a charge at all, then it was a charge on the whole realty, and must be paid out of the entire real estate, and her one-third interest for life must be allotted to her out of the remainder of the real estate after the payment of the legacy.</p> <p>3. That the $1,800 legacy was a charge on the personal estate. The widow must account for the household and kitchen furniture admitted to be in her possession.</p> <p>And these questions of construction were submitted to the Court.</p> <p>Thereupon was rendered the following judgment:</p> <p>This cause having been submitted to the Court upon the statement of facts agreed, it is considered and adjudged, that the $1,800 bequeathed by the testator to the plaintiff is a charge upon the whole estate, except the personal property specifically bequeathed to plaintiff,, and it being agreed that the personal property has been exhausted in the payment of debts, the said sum is charged upon all of the real estate of the testator. The defendant administrator e. t. a. is directed to sell so much of said real estate as may be necessary to pay the said legacy, and the balance of the real estate is to he divided according to the directions of the will.</p> <p>From which judgment the defendants appealed.</p>

<p>This was a petition filed by the defendant, to rehear the •decision rendered in this case at the last term of the Court, and reported on page 555 of volume 94.</p> <p>The errors assigned were:</p> <p>1st. That'this Court overlooked the fact that the payment of <$907.00 was made and accepted as a settlement and discharge of all the principal money, leaving interest only unsettled, and the plaintiff’s action was one to recover the interest after the principal had been settled.</p> <p>2d. That in the opinion, the Court erroneously proceeded upon the idea, that in order to relieve the defendant from liability, it was necessary to establish that the executor accepted said sum of $907.00, &c., in satisfaction of the debt, whereas the acceptance of the amount, in payment of the principal, in law discharged the whole debt and interest thereon.</p> <p>3d. That the Court misapprehended the verdict of the jury, in that, in the opinion, on page 557, it is said, “It, (the verdict,) does not find that the executor did more than receive and credit the sum which the defendant admitted and was willing to pay,” whereas, the finding on the issue establises the fact that there was an agreement to pay the principal, and that the sum of $907.00 was paid in pursuance of said agreement in settlement of the principal.</p> <p>4th. That in the opinion, the Court erroneously proceeded upon the idea, that the defendant contended that a compromise was understood and intended to be brought about under §574.of The Code, whereas the defendant did not rely upon any compromise under said section, but insisted'that the jury by their verdict, having established the fact that the principal had been paid, no recovery could be had in this action for interest.</p> <p>5th. That the verdict of the jury was misapprehended, and the law applied to facts not set out in the statement of the case on appeal.</p>

<p>Appeal — Evidence—Issues— Character — Judge’s Ch arge.</p> <p>' 1. where an action is brought for an account, and the answer pleads matter in bar of the account, and a trial is had of the issues raised by the plea in bar, an appeal lies by the defendant from a judgment ordering an account before the account is taken.</p> <p>2. In an action by a principal against his agent for an account and settlement, it is error to admit the declarations of a partner of the agent, that a firm, of which the agent was a member, .had paid a debt to him as agent of the plaintiff. Such evidence is hearsay, and as it manifestly tends to the injury of the defendant, it is error to let it go to the jury.</p> <p>3. Where, in such case, the agent pleads a settlement and discharge, a witness cannot testify to such declarations of a partner of the agent, to explain why he advised the plaintiff not to sign a discharge of the agent, the debt from the partnership not being embraced in the statement rendered by the agent at that time..</p> <p>4. A new trial will not be grantedbecau.se of the submission of alleged improper issues, when they were submitted after argument and without objection, and substantially cover the merits of the case.</p> <p>5. In an action against the executrix of an agent for an account and settlement, evidence of the character of the testator, whether good or bad, is incompetent. ■</p> <p><5. If a special instruction asked for is substantially given, it is all that is required. A party has no right to have his prayers for instruction, even if proper, given to the jury in the very words in which they are asked.</p> <p>7. The Supreme Court will not consider exceptions, unless they point out in terms, or by reasonable implication, the error intended to be reviewed. So where the record showed that the appellant excepted generally to the entire charge, the exception was not considered.</p> <p>{Price v. Eccles, 73 N. C., 162; Smith v. Barringer, 74 N. C., 665 ; Sloan v. McMahon, 85 N. C., 296 ; Commissioners v. Raleigh, 88 N. C., 120; Mumble v. Mebane, 89 N. C., 410 ; Burlona. The Railroad, 84 N. C., 19; Heilig v. Dumas, 65 N. C.,-214, cited and approved).</p>

The plaintiff had judgment in the Superior Court against the defendant. Execution issued thereon, and the Sheriff returned the same wholly unsatisfied. Thereupon, on the 7th day of October, 1885, the plaintiff began proceedings supplementary to the execution.

Ciyid action, tried before Philips, Judge, and a jury, at August Civil Term, 1886, of the Superior Court of Wake 'County. This action, commenced on January 20th, 1885, upon an averment of title in the plaintiff, is to recover possession of the tract of land described in the complaint, and damages for the withholding, and the. defendant Willis Parish, makes no answer thereto.

Civil ACTION, heard by MaeBae, Judge, upon exceptions to the report of a referee, at May Term, 1886, of Ieedell Superior Court. Both parties appealed. The facts appear in the opinion.'

<p>Appeal from the Clerk, ih a pi’oceeding instituted before him, heard by Graves, Judge, at July Term, 1884, of Randolph Superior Court.</p> <p>This is an ex parte proceeding, begun on the 16th of December, 1880, before the Clerk of the Superior Court of Randolph county, in the exercise of his jurisdictional functions, by James Spencer and Sallie Keerans, executor and executrix of the will of Nathan Spencer, deceased, (the same having been duly proven), and the legatees named in that will, for an account, and to settle and distribute the estate of the testator, as therein provided and directed.</p> <p>In pursuance of notice to the parties interested, and in accordance with the prayer of the petition, the Clerk of the Court proceeded, on the 20th day of May, 1881, to take and state an account of the estate in the hands of the executors, and made report thereof..</p> <p>Afterwards, on the 24th of March,' 1882, T. W. Andrews and his wife Amy, legatees, filed exceptions to the report.</p> <p>And afterwards, on the 26th day of August, 1882, the Clerk made his order overruling the exceptions and confirming the report, from which the said Andrews, his wife Amy, and others, legatees, appealed to the Judge of the Superior Court in term time. Thereupon the Clerk filed all the papers in the cause with the civil trial papers, and docketed the cause in the civil issue docket.</p> <p>Thereupon the Judge in term time, made an order, of which the following is a copy :</p> <p>“ It appearing to the Court, that A. M. Diffee, late Probate Judge, has failed to send up with the appeal in the case, along with his report and the exceptions, the evidence and the admissions of parties; it is ordered that the said Diffee file said evidence and admissions in writing, to the next term of this Court. Ordered, that a copy of this order be made and served upon the said A. M. Diffee within ten days after the adjournment of this Court.”</p> <p>Thereafter the ex-Clerk made a “report,” in which he gave a history of the proceeding before him, and among other things said:</p> <p>“ No witnesses were sworn, but the parties presented inventories of the property of the testator, accounts of sales, and the-various other vouchers and papers filed in the case and included in the Court papers. These are referred to in the exhibits attached to my report, and marked “A”and“B.” They were presented by the executor and executrix to the other parties, and without dispute were admitted to be true by them, and that was the evidence upon which I made my report aforesaid. The copy of the will, annexed to the petition, was treated as a true copy of the original will by all the parties, without objection, and under those circumstances, used as evidence.”</p> <p>Afterwards, the matter came on to be heard before the Judge in Term time. Calvin Cagle and his wife Emeline, and others, legatees, insisted that the Judge ought to proceed to hear the matter upon the exceptions specified in the papers sent up by the Clerk, but he declined to do so, and made an order, of which the following is a copy:</p> <p>“This proceeding having been brought into this Court, by appeal on the part of T. W. Andrews and wife Amy, and Calvin Cagle and wife Emeline, and also upon the appeal of Silas Keeraus and his wife Sarah, as appears from the judgment of the Clerk of this Court, made August 26th, 1882, and the orders thereon made by the said Clerk, A. M. Diffee; and it appearing to the Court, that no statement of the case on appeal has been filed by the Clerk in this Court; and it further appearing that the Clerk from whom said appeal was taken, has gone out of office, and that the papers filed by him at the present Term, are not legally sufficient to supply a statement of the case on appeal: It is now ordered, that this proceeding be remanded to the Clerk of this Court, to hear said proceeding de novo, according to law.”</p> <p>From this order T. W. Andrews and his wife Amy, and Calvin Cagle and his wife Emeline, appealed to this Court.</p>

<p>Civil ACTION, tried before Gilmer, Judge, and a jury, at January Special Term, 1886, of Durham Superior Court.</p> <p>Both parties appealed from the judgment of the Court below, and the plaintiffs’ appeal was disposed of at the last Term of this Court.</p>

'Civil action, tried before Clark, Judge, at May Term, 1886, of Durham Superior Court. The plaintiff commenced this action on the 12th clay of February, 1886, to recover the value of certain services., which he alleged he rendered to the defendant at its request. On the 25th day of the same month, he obtained a warrant of attachment in aid of his action, which was levied upon a certain debt •due to the defendant.

Civil ACTION, tried before Clark, Judge, and a jury, at October Civil Term, 1885, of Wake Superior Court. There was a judgment for the plaintiff, and the defendant appealed. The facts are fully set out in the opinion.

Civil action, tried before MacPae, Judge, and a jury, at Fall Term, 3 886, of Davie Superior Court. This case was before the Court on the plaintiffs’ appeal, at February Term, 1885, but not upon the points presented in the present transcript.

<p>Civil ACTION, tried before Connor, Judge, at Jan nary Term, 1886, of New HaNOVER Superior Court.</p> <p>The defendant Crapon sent his wagon to the plaintiff’s shop for repairs, which were made, and the vehicle returned to the •owner on January 13th, 1883. The charge for repairs was in materials used, three dollars, and for labor performed twelve •dollars. Having possession, the said Crapon ten days thereafter, made a general assignment of his property for the benefit of •creditors, including the wagon, to the defendant Ricaud, to whom it was delivered. On January 29th, 1883, the plaintiff filed his •claim, in order to perfect his lien, in accordance- with the directions of the statute, (The Code, §1784), until which the assignee bad no notice of the asserted lien. The present action, begun -on the 7th day of May following, before a justice of the peace, is to recover judgment for the debt, and enforce the alleged lien upon the wagon in order to its payment; and after judgment, was removed by appeal into the Superior Court. Upon the trial, both before the justice and in the Superior Court, the indebtedness was admitted, and the sole controversy was in reference to the existence and validity of the alleged lien. Upon the hearing, the Court adjudged, that the claim of the plaintiff for $15 is a lien on the said vehicle, and that the said lien dates back to the 13th of January, 1883, and attaches thereto in the hands of the assignee. And it was further adjudged, that if the said sum, and interest thereon from the 13th day of January, 1883, and the costs of this action, be not paid on or before the 18th day of April, 1886, that the said vehicle be sold to satisfy said judgment, in the manner prescribed by law, and after sucb sale, any and all persons shall be barred of any interest therein, claimed by, through, or under the defendants.</p> <p>Prom this judgment the said assignee, Ricaud, appealed.</p>

Civil ACTION, tried before MaoJEtae, Judge, and a jury, at August Term, 1886, of Stokes Superior Court. There was a judgment on the verdict for the plaintiffs, and the defendants appealed. The facts are fully set out in the opinion.

This was a civil ACTION, tried before Shipp, Judge, at June Term, 1886, of BuNCOMbe Superior Court. The action was to recover the value of work and labor done for defendants, in building an academy, known as the Newton Academy, in the county of Buncombe, about the year 1858. The plaintiff introduced one Thos.

<p>Civil action, tried before Shipp, Judge, and a jury, at August Term, 1885, of Mecklenburg Superior Court.</p> <p>The following is a copy of the issues submitted to the jury on the trial, and the response to the first one. They did not respond to the second and third ones:</p> <p>I. “Did Mortimer Johnson execute and deliver a deed to the Atlantic, Tennessee and Ohio Railroad company in 1859 or 1860, for the land in controversy, or any part thereof? If so, what part?” Answer: “No part.”</p> <p>II. “Has same been lost or destroyed?</p> <p>III. “ When was the deed lost of destroyed, if lost or destroyed ?”</p> <p>It appears from the case stated on appeal, that upon the rendition of the verdict set out in the record, the counsel for plaintiff moved in arrest of judgment, upon the ground that the verdict was not a proper response to the issue, and was insensible; and also moved that the verdict be set aside, and a new trial granted. The Court refused the motion of the counsel of plain - .tiff, and rendered judgment for the defendant.</p> <p>Plaintiff appealed to Supreme Court.</p>

This was a civil action, tried before Clark, Judge, at the January Term, 1886, of the Superior Court of GRANVILLE county, and brought to this Court by the appeal of the defendants, other than the defendant The People’s Building and Loan Association, which did not appeal.

Civil ACTION, tried before Shepherd, Judge, and a jury, at Eall Term, 1884, of Harnett Superior Court.

Civil ACTION, in the nature of a creditor’s bill, heard by MacRae, Judge, upon exceptions to the report of a referee, at February Term, 1886, of Ibedell Superior Court. The statute (Pr. Acts, 1869-’70, ch. 64,) authorized the organization of the ‘‘Bank of Statesville,” with a capital stock not exceeding $500,000. Such bank was never in fact organized, but certain parties subscribed for shares of stock, preparatory to a contemplated organization of it.

<p>Judgment — Excusable Negligence — •Special Proceedings — Interlocutory Orders.</p> <p>1. The Clerk of the Superior Court cannot set aside a judgment in a special proceeding, for excusable negligence, under the provisions of §274 of The Code, but he can allow an amendment under the provisions of §273.</p> <p>2. Interlocutory orders are under the control of the Court, and upon good cause shown, they can be amended, modified, changed or rescinded, as the Court may think proper.</p> <p>3. So, where in a proceeding to sell land for assets, the decree for sale embraced some land which was the property of one of the defendants, and which did not belong to the ancestor, but by a mistake the defendant did not discover it until after the sale, and when the notice to confirm the sale was made, it was held, that the Clerk had the power, and that he committed no error in amending the order of sale, so as to omit the defendant’s land therefrom.</p> <p>{Brittain v. Mull, 91 N. C., 498; •Tones v. Desern, 94 N. C., 32; Shinn v. Smith, 79 N. C., 310; Molyneux v. Huey, 81 N. C., 106; Millers. Justice, 86 N. C., 26; Mc-JSachern v. Kerchner, 90 N. C., 177; Williamson v. Hartman, '92 N. C., 236, cited and approved).</p>

<p> Evidence. </p> <p>1. It is not error to rule out evidence which could not aid the jury in passing on the issues to be tried. So, where the issue was, whether a certain tract of laud in dispute, was intended by a testator to pass under a devise of his “home place,” evidence that he had given parcels of land to certain of his sons, before his death, is irrelevant.</p> <p>3. The admission of immaterial evidence is no ground for a new trial, unless it appears that its admission probably worked injury' to the appellant.</p>

This was a civil ACTION, tried before Avery, Judge, at’ August Term, 1886, of the Superior Court of Buncombe county. The action was brought to recover the value of a horse.

Ejectment, tried at February Term, 1886, of Hyde Superior Court, before Gudger, Judge. A jury trial was waived, and the Court found the facts as follows: That the land in dispute was granted by the State, a portion thereof to John Hall in 1795, and the remaining portion in 1819 to Green Hill.

<p> Practice. </p> <p>1. Where, by inadvertence, a judgment is entered in this Court for a new trial, when it should have been one remanding the case, it will be corrected on motion.</p> <p>2. Where the relief sought in an action was the reformation of a deed, and for damages and a partition, and the Court below rendered judgment on the verdict in favor of the defendant, which was reversed on the appeal; It was held, that a venire de novo should not be granted, but the case should be remanded to be piroceeded with as if no erroneous ruling had been made.</p>

This was a civil action, tried before Clark, Judge, at May-Term, 1886, of Catawba Superior Court. The action was brought to recover the balance due on a prommissory note, made by the defendant to the plaintiff. The plaintiff and defendant were both non-residents of this State.

Civil action, tried before Glark, Judge, at October Term, 1886, of New Hanover Superior Court. The plaintiff caused execution to issue upon a docketed judgment in the Superior Court, upon which personal property of the value of $500 was laid off to the defendant, and the sheriff made return of a levy upon what was found in excess.

<p>■Coverture — Jurisdiction of Justices of the Peace — Injunction— Pleading — Irregular Judgments.</p> <p>1. A feme covert may be sued in the court of a justice of the peace, for a debt due by her, or on a contract made by her before marriage, or for a debt contracted by her as a free-trader.</p> <p>2. In an action to enjoin the collection of a judgment on the ground of</p> <p>want of jurisdiction in the court which rendered it, a transcript of the record should be set out, so that the court can see from the record itself, whether or not there was a fatal lack of jurisdiction. 8. Where the court has jurisdiction, errors m the judgment cannot be corrected by an injunction, but only by appeal, except where fraud is alleged.</p> <p>4. Where it is sought to enjoin the collection of a judgment on the ground of want of jurisdiction in the court which rendered it, every presumption is in favor of the jurisdiction, and it must be made to appear affirmatively from the record, that the court had no jurisdiction.</p> <p>5. A motion in the cause is the proper remedy for setting aside an irregular judgment.</p> <p>6. Where a feme covert was sued with her husband, whom she instructed to make a proper defence to the action, which he failed to do; It ivas held, no ground for an injunction to restrain the collection of . the judgment, in the absence of fraud.</p> <p>7. The defence of coverture must be made in apt time in order to be available.</p> <p>(Vase v. The Building Association, 91 N. C., 55; Grantham v. Kennedy, Ibid., 148; Spillman v. Williams, Ibid., 483; Williamson v. Hartman, 92 N. C., 236; Burgess v. Kirby, 94 N. C., 575; Nicholson v. Gox, 83 N. C., 48; Vick v. Pope, 81 N. C., 22; cited and approved; Dough-erty v. Sprinkle, 88 N. C., 300, cited, distinguished and approved).</p>

MotioN before the clerk to remove an administrator, heard on appeal by Avery, Judge, at Spring Term, 1885, of Burke Superior Court. It appears that Wesley Cox died-in the county of Burke, in the month of September, 1883, leaving a widow surviving him, and likewise numerous children, most, or all of them, it seems, of the age of twenty-one years. The widow did not apply for letters of administration on the estate of the intestate.

<p>Civil actioN, heard by Philips, Judge, upon exceptions to a report of a referee, at Spring Term, 1885, of the Superior Court of Mecklenburg county.</p> <p>• Tlie plaintiff placed numerous claims which he held against divers persons, in the hands of the defendant, an attorney-at-law, for collection, at different periods during the years 1857,1858 and 1859, and the present action ivas instituted on November 4, 1875, against him, for an account and settlement. The complaint also alleges a personal indebtedness of the defendant lor goods sold and services rendered, of tire value of $200, which is also demanded. The answer meets the charge of indebtedness growing out of the agency for collection or otherwise, by a direct denial, and insists that the plaintiff, upon these transactions and on an adjustment, will be found indebted to the defendant.</p> <p>At Fall Term, 1876, an order of reference was made, directing J. 1). Shaw to take and state an account between the parties, with power to take testimony, when necessary, and to report, at the next term of the Superior Court of Mecklen-burg. The commission was executed by the referee, and he made his report, finding both the facts and the law, and showing, as the result, a balance of $26.48 due on February 26th, 1877, by the plaintiff to the defendant.</p> <p>Numerous exceptions were entered by the plaintiff, and passed upon by the Judge, who overruled them, confirmed the report, and gave the defendant judgment for the sum ascertained to be due him, and for costs, from which the plaintiff appealed.</p>

<p>Rule in Shelly’s Oase— Wills.</p> <p>1. Quiere, whether the rule in Shelly’s Case has been abrogated in this State by statute.</p> <p>2. In this State, when an estate is settled, on the ancestor, with_ remainder to his heirs, “ equally to be divided among them,” or “ share and share alike,” the addition of these words prevents the application of the rule in Shelly’s case, and the heirs take as purchasers,</p> <p>3. Since the act of 1784, words in a will which would give the absolute property, if bequeathing chattels, will give a fee if used in a devise of lands, the effect of the statute being to put chattels on the same footing as land, and to make the same rule applicable to both.</p> <p>4. A bequest of chattels to A for life, and at his death to be equally divided between his heirs, vests only a life estate in A in the chattels, with a remainder to his heirs, as tenants in common.</p> <p>5. Where land is devised to the ancestor for life, with a limitation that the remainder is to be equally divided among his heirs, or the heirs of his body, or his issue, the remainder men take as tenants in common, per capita and not per stirpes, and they take as purchasers.</p> <p>(Ward v. Jones, 5 Ired., Eq., 400 ; Swain v. Rascoe, 3 Ired., 200, cited and approved.)</p>

Civil actiok, tried before Philips, Judge, and a jmy, at Spring Term, 1886, of GiieeNE Superior Court. The plaintiff’s action, begun on July 6th, 1885, is prosecuted for the recovery of damages, for the utterance, by the defendant, of defamatory words concerning the plaintiff, on several different occasions, imputing a want of virtue, and charging acts of illicit sexual intercourse with divers persons, and among them the defendant’s son.

<p>Rehearing — Issues—Production of Papers — Evidence— Declarations.</p> <p>1. Where a party to an action prepares issues which are submitted, and then objects to another issue submitted by the Court, he cannot bo-bear d to assign as error that the Court did not submit an issue on a particular question, upon which he did not ask an issue.</p> <p>2. It is too late, after the trial, to complain that certain, issues were not submitted to the jury, if they were not asked for in apt time.</p> <p>3. Where, in the opinion of the Court, additional findings are necessary in order to do justice between the parties, the case may be sent back for the trial of additional issues.</p> <p>4. Where, under the Judge’s charge, the appellant gets the substantial benefit of an issue raised by the pleadings, he cannot object, on appeal, that the issue was not submitted more formally, when he does not ask for such issue on the trial.</p> <p>5. Under the present statute {The Code, §1373), no affidavit is necessary in order to get an order for the production of papers in the possession of the adverse iiarty, but the Court now has power, on motion and due notice, to require the production of papers or books which contain evidence pertinent to the issue.</p> <p>8. Due notice, is notice sufficient to enable the party to have the document present when called for.</p> <p>7. In petitions to rehear, the petitioner will not be allowed to assign other grounds for an alleged error than those presented at the first hearing.</p> <p>8. Any and all declarations pertinent to the subject matter, and bearing upon the issue, coming from parties to the action, or any of them, are competent against the party making them, and are also competent against all, when then interest are joint.</p> <p>{Kidder v. Mellhenny, 81 N. C., 123; Curtis v. Cash, 84 N. C., 41; Bryant v. Fisher, 85 N. C., 69; Alexander v. Robinson, 85 N. C., 275; Moore v. Hill, 85 N. C., 218; Simmons v. Mann, 92 N. C., 12; Burton v. The Railroad, 84 N. C., 192; Allen v. Balter, 86 N. C., 91; Lawton v. dies, 90 1ST. C., 374; Fry v. Currie, 91 N. C., 436; Graham v. Hamilton, 3 Ired., 381, cited and approved).</p>

MotioN to vacate a judgment) heard by Shipp, Judge, at October Term, 1886, of Buncombe Superior Court. The action was prosecuted to recover in damages the value of two mules alleged to have been killed by the negligent running of the defendant’s locomotive and cars on their track, on or about the first day of November, 1883. The summons issued January 19th, 1884, and was served nine days thereafter.

'Givil ACTION, tried before Avery, Judge, and a jury, at Fall Term, 1886, of Haywood Superior Court. This was an action commenced before a justice of the peace on the 10th day of May, 1883, for the recovery of the .sum of one hundred and sixty-five dollars and seventy-three cents and interest tliereon from the 16th of February, 1876, alleged to be due by note not under seal, and carried to the Superior Court by appeal of the plaintiffs.

<p>Civil action, tried before Clark, Judge, at August Civil Term, 1885, of Wake Superior Court.</p> <p>The facts are stated in the opinion.</p>

<p>Amendments — Evidence—Official Bonds — Burden of Proof.</p> <p>1. Where the trial Judge allowed an amendment after verdict, but ' stated to opposing- counsel that if they would show by affidavit that the defendant had any evidence to offer to the complaint as amended, which had not been already offered, that he would either refuse to-allow the amendment, or would set aside the verdict; It was held, to cure any possible error. It is intimated that allowing amendments after, as well as before verdict, is discretionary with the trial Judge.</p> <p>2. In an action against a clerk and one of the sureties on his official bond, the record of a judgment against the clerk, and others of his sureties, in a previous action against them for the same demand, and on the same bond, but in which action the surety in the present action was not a party, is competent evidence to fix the amount due by the clerk.</p> <p>3. "Where money is paid into the clerk’s office, the obligations to hold and pay it over to the party entitled, when called on, is incurred when the money is received, and the bond then in force is responsible. If the clerk was elected to another term of office, and became his own successor,' the burden is on the sureties on the bond in force when the money was received by the clerk, to show that he has paid it over to himself as his own successor.</p> <p>4. The failure of the clerk to pay over the money when it is demanded, is strong evidence of a conversion at some previous stage, and the burden of proof is on the defendants to show that the conversion was not made when the money was received.</p> <p>{Armstead v. Harramond, 4 Hawks, 339; StrielclmidY. Murphy, 7 Jones, 342; Badger v. Daniel, 79 N. C., 372; State v. Laclcey, 3 Ired., 25, cited and approved).</p>

Civil actioít, heard upon exceptions to the report of a referee, before Boylcin, Judge, at August Term, 1886, of Ire-dell Superior Court. William H. Watts died, in the m.onth of June, 1863, leaving a considerable estate, real and personal, and having made a will, which at August Term ensuing of Iredell county County Court, was admitted to probate, and the plaintiff, Charles L. Summers, nominated therein sole executor, was qualified as such by taking the prescribed oath.

Civil ACTION, tiled before Connor, Judge, and a jury, at April Term, 1886, of WayNic Superior Court.

These were civil actions, tried before Ch'aves, Judge, on a •case agreed, at Spring Term, 1885, of Halifax Superior Court. The facts are as follows: 1. That from May, 1884, and ever since then, the plaintiff has been a merchant in the town of Enfield, Halifax county, State of North Carolina. 2.

Civil ACTIONS, tried before Graves, Judge, on a ease agreed, at Spring Term, 1885, of Halifax Superior Court. The facts are substantially the same as in the preceeding cases of McGwigan v. The Railroad, except that in these cases, the freight was shipped from a point within the State to a point within the State, and so the question of inter-state commerce did not arise. There was a judgment for the plaintiff and the defendant appealed. .

This was a civil aotiok for the recovery of land, tried before MacRae,, Judge, at Fall Term, 1886, of BladeN Superior Court. The plaintiffs claim title to the land described in the complaint under the will of Malcolm Mclnnis, who died in 1870 or 1871. His will was executed on the 18th of March, 1858, and proven on the 30th of August, 1882.

This was a civil action, tried before Shepherd, Judge, ut Spring Term, 1886, of Halifax Superior Court.

MotioN to correct a judgment, heard before Philips, Judge, at Chambers, in Greenville, Pitt county, on the 17th of June, 1886. This was a special proceeding, brought by the plaintiffs as next of kin, of P. K. W. Strickland, deceased, to obtain an account and settlement of his estate in the hands of the defendant, his administrator.

Special pboceemNGS for partition, heard by Shipp, Judge, at Fall Term, 1885, of UNION Superior Court. (The same case is reported in 94 N. C., 222.) This was a petition for partition of land among the tenants in common and heirs at law of B. D. Austin, commenced before the Clerk of the Superior Court. Catharine Helms, one of the defendants, was the widow of’ B. D. Austin, and is now the wife of A. M. Helms.

This was a civil ACTION, tried before BoyJcin, Judge, at October Term, 1886, of Richmond Superior Court. The plaintiff alleged that he was the owner and entitled to the possession of four tracts of land described in his complaint, which the defendant wrongfully withholds, and to these averments the defendant opposed a simple denial. Three issues were submitted to the jury, to which another was added during the trial, and these, with the responses to each, were as follows : 1.

<p>Civil ACTION, tried before Boyldn, Judge, at February Term, 1886, of RICHMOND Superior Court.</p> <p>Joseph M. Hines died in the year 1865, leaving a will, which was soon after admitted" to probate, and therein appointing the defendant John W. Hines one of his executors, who alone accepted the trust, and entered upon the discharge of its obligations. The third item in the will is as follows:</p> <p>“ I bequeath to my son, M. W. Hines, four hundred dollars, to be paid to him as follows: Upon the death of my wife, he shall receive forty dollars, and forty dollars annually thereafter till the payments amount to four hundred dollars. The payments shall be made by said son John M. Hines, and daughter S. Elizabeth, each paying twenty dollars annually, and the property bequeathed to them shall be chargeable with said payment. I make the above bequest to my son M. W. Hines, and no more.”</p> <p>The legatee, M. W. Hines, on September ‘26th, 1867, died intestate, and letters of administration issued on his estate in May, 1883.</p> <p>The testator’s widow, Sarah C., died on or about October 12th, 1868.</p> <p>The defendant, John M.,- the sole acting executor, as a legatee and devisee under the will, received property of the value of several thousand dollars which he still possesses and enjoys.</p> <p>The legatee, S. Elizabeth, only received, under her father’s will, “ two beds and furniture, and one mule — all not exceeding in value the sum of one hundred dollars,” which property is now worthless, and she herself insolvent.</p> <p>The issues arising upon the pleadings were confined to the ascertaining how much of the annuity had been paid, and to the fixing of the date upon which the defence, under the statute of limitations, depends, and were not considered. There was judgment for the defendant, and the plaintiff appealed.</p>

<p>Discretion. — Tie-opening Evidence— Witness — Tort—Contract— Conversion.</p> <p>1. The Court may in its discretion, after the close of the testimony, permit the case to be re-opened and further evidence to be introduced ; and the exercise of such discretion is not reviewable upon appeal.</p> <p>2. It is not error to refuse to allow a party, on the cross-examination of a witness, to call out new and substantive matters, when the Court announces that the party desiring such testimony, may recall the witness and examine him at a subsequent and more appropriate stage of the trial.</p> <p>3. If a party to an'action introduce and examine his adversary as a witness, the credibility of the latter is not open to attack, and it makes no difference in that respect by which side he may be subsequently recalled.</p> <p>4. The rule that when one person takes and sells the personal property of another, the latter may waive the tort and recover the money, embraces the case where the person sued received the money in consequence of the action of a Court whose jurisdiction and process he invoked for that purpose.</p> <p>(Pam v. Pain, 80 N. C., 322 ; States. Lee, Ibid, 483 ; State v. King, 84 N. C., 737 ; Wall v. Williams, 91 N. C., 477 ; Jones v. Baird, 7 Jones, 132; cited and approved.)</p>

Issues raised upon the allotment and appraisement of Homestead, tried before Clark, Judge, at October Torna, 1886, of New Hanover Superior Court. The facts are stated in the opinion.

Civil action, tried before Boy Join, Judge, and a jury, at May Term, 3886, of CUMBERLAND Superior Court. This action, is against T. J. Jones, the drawee and acceptor, and the drawer of a check or draft in favor of B. & T. C. Fuller, and by them endorsed to the plaintiff, which is in these words: “,$720.00. Fayetteville, N. C., January 2nd, 1879. Thirty days after date, pay to the order of Messrs.

Civil action, tried before Avery, Judge, and a jury, at Fall Term, 1886, of Haywood Superior Court. There was a judgment on the verdict for the plaintiff, and the defendant appealed. The facts appear in the opinion.-

This was a civil ACTION, tried at February Term, 1886, of the Superior Court of Duplin county, before Gilmer, Judge. ' A jury trial was waived, and the Court found the following facts: “On March 30th, 1878, one Squire Jones, executed to the plaintiff a chattel mortgage, conveying a certain horse, the property in dispute. On the_day of_, 188_, Squire Jones died intestate, and the defendant is his widow.

This was a civil ACTION to recover a tract of land, tried at the Pall Term, 1886, of Ashe Superior Court, before Montgomery, Judge. In support of their title the plaintiffs offered in evidence a deed from John Bower to George Bower, dated 25th of August, 1808, a deed from George Bower to David Earnest, dated November 19th, 1810, and a deed from David Earnest to Andrew Shearer, dated 7th of March, 1812.

This was a Civil action', tried before Qudger, Judge, at Fall Term, 1886, of the Superior Court of Graham County. This was an action to compel the defendants, by mandamus, to induct the plaintiff into the office of sheriff of said county. The following issues were submitted to the jury : I. Was the plaintiff elected sheriff of Graham County, November, 1884? II.

<p>(Tvri, ACTION, tried at July (special) Term, 1885, of Haywood Superior Court, before Graves, Judge.</p> <p>The plaintiffs, the heirs at law of J. A. B. Fitzgerald, bring this action to recover the land described in the complaint. They simply allege title thereto in themselves, that the defendant is in possession thereof, and unlawfully withholds the same from them.</p> <p>The defendant denies that the plaintiffs have such title, and that he unlawfully withholds possession of the land from them, and for further defence he alleges :</p> <p>“ I. That in the lifetime of plaintiff’s ancestor, J. A. B. Fitzgerald, he conveyed the land in controversy to (Villiam and Margaret Swanger.</p> <p>“ II. That said William and Margaret Swanger are now residents of the State of Tennessee, and are minors.</p> <p>“III. That said William and Margaret, as defendant is informed and believes, are the owners of said land.</p> <p>“ That the defendant is the tenant of said William and Margaret, and he is informed and believes that they are necessary parties to this action.”</p> <p>Issues were submitted to the jury, and there was a verdict in favor of the plaintiffs. The Court gave judgment for them, and the defendant appealed.</p> <p>The following is a copy of so much of the case settled upon appeal as it is necessary to set forth here :</p> <p>“ The plaintiffs showed apparent title to the land described in the complaint in J. A. B. Fitzgerald, their ancestor. It was admitted that the defendant was in the possession of the land described in the complaint. The plaintiffs offered testimony to show the value of the rents and profits of the land.</p> <p>“ The plaintiffs then rested.</p> <p>“ The defendant then offered in evidence a deed duly proven and registered in Haywood county, from the said J. A. B. Fitzgerald to William and Margaret Swanger.</p> <p>“ To this evidence plaintiff's objected, because, as they alleged, the grantor did not at the date of the alleged deed, have sufficient mental capacity to make a deed. The Court overruled the objection, and allowed the deed to be read in evidence, subject to the proof of the want of capacity. The deed was sufficient in form, and bore date-, 1870.</p> <p>“ The defendant closed his case.</p> <p>“ The plaintiffs then offered to show that at the time of executing the alleged deed read in evidence by the defendant, J. A. B. Fitzgerald, the grantor, did not at the time of the alleged execution thereof, have sufficient mental capacity to make a deed.</p> <p>“The defendant objected that such evidence ought not to be received, for the defendant had set out in his answer that he held under the deed of the said J. A. B. Fitzgerald, and could not be dispossessed while he held under it, and that the plaintiffs could not be heard to prove want of mental capacity in their' ancestor so as to avoid his deed, without allegation and notice to the defendant. The Court overruled the objected and the defendant excepted.</p> <p>“ The plaintiffs then offered evidence tending to show a want of capacity, and S. L. Love, a physician of thirty years’ practice, testified that in his opinion J. A. B. Fitzgerald was a monomaniac, especially on the subject of religion, under the deluson that it was his religious duty to give away all his property. That he first knew him as a lawyer, after-wards as a preacher. That about 1860 he retired from the public, and lived a secluded life. He educated his children under his own tuition. Other witnesses expressed the opinion that J. A. B. Fitzgerald was of unsound mind, and especially on religion and matters of that kind. That he gave away all his property, and left his children destitute. There was much evidence on the question of capacity, but it is not deemed material to set out any more of the evidence for plaintiffs.</p> <p>• “It appeared in evidence, that at the date of the said deed,'William and Margaret Swanger were infant children of one William Swanger, who died in the war, and that S. Fitzgerald was administrator on the estate of said Swanger, and as such had sold his land, and that at the sale J. A. B. Fitzgerald became the purchaser, and that plaintiffs still held the land so purchased. This was not the land in suit, but another tract known as mountain land.</p> <p>■ “ The defendant was allowed to show the value of this tract soltl by S. Fitzgerald and bought by J. A. B. Fitzgerald, and there was evidence tending to show that its present value is-about five hundred dollars.</p> <p>“ The defendant also offered a letter shown to be in the handwriting of J. A. B. Fitzgerald to E. P. .Jones, grandfather of William and Margaret Swanger, in which ho explained his. reasons for making the alleged deed to said William and Margaret.</p> <p>-“The defendant then offered to read in evidence the deed from S. Fitzgerald, administrator, conveying the mountain land, or Swanger land, to J. A. B. Fitzgerald, for the purpose of showing what price had been paid for it. The deed bore date 3857, and recited the land was sold in 1864 lor $200.00. The plaintiffs objected, and the defendant added that he also offered the deed to show “that J. A. B. Fitzgerald was competent to purchase land, take a deed, and make a good bargain. That lie got the land greatly under its value, and that the deed of 1870 was not the result of a religious hallucination and disordered mind, but was the result of a well balanced mind to recompense the said children for the advantage he gained in the purchase.”</p> <p>• The ('ourt being of the opinion that the deed was incompetent, sustained the plaintiff’s objection, and the-defendant again excepted.</p>

<p>Deed — Description.</p> <p>1. If the description, in a deed, however indefinite, is sufficient to allow of an identification by an actual survey, it will be upheld. Id cerium est, quod cerium reddi potest.</p> <p>2. The following description was held not so vague and indefinite as to render the deed void: “ One half — one hundred and fifty acres — of a three hundred acre tract granted to R. in 1872, (describing the three hundred acre tract), and lying on the north side or end of said grant, beginning at the three black oaks of the old grant as aforesaid and running 127 ft. w. to a stake thence southward in slightly diverging lines from aforesaid black oaks and stake to points along the respective lines, where a line east and west parallel with the south (east and west line) of the old grant aforesaid shall contain, within the fines and distances aforesaid, one hundred and fifty acres.”</p> <p>(Stewart v. Salmonds, 74 N. C., 518, cited and approved).</p>

<p>Evidence — Action to recover land — Comments of Counsel— Judge’s Charge — Possession.</p> <p>1. In an action to recover land, where the question is as to its location, a witness who is acquainted with the land, and also with an adjoining tract, may be allowed to testify where such adjoining tract is located.</p> <p>2. It is not error to admit irrelevant testimony, when it does not tend to mislead the jury.</p> <p>3. Where a party objects to a portion of an answer made by a witness because it is not responsive, he should ask the Court to require its withdrawal, or to tell the jury to disregard it.</p> <p>4. Evidence of a collateral matter, which has no material bearing on the controversy, but which tends to influence the jury, is not competent.</p> <p>5. Where counsel in their argument to the jury, commented on the fact that a witness for the opposite party whose evidence tended to locate the land in suit, had participated in running- the lines of a grant to himself, which lines constituted a part of the boundary of the land in suit; It was held, not a fit subject for comment, to attack the witness, and that counsel were properly stopped by the Court, the grant to the witness not having been attacked.</p> <p>6. Where there is no actual possession, the superior title draws to it the possession.</p> <p>7. It is the duty of the appellant to show error, and if the Court cannot see from the record that a charge given to the jury is erroneous, it will not grant a new trial.</p> <p>8. When there are no natural object or adjacent lands called for in descrip- ■ tion in a deed, the course and distance must determine the line.</p> <p>9. Where the question for the jury is the location of a corner, the call in junior grants is competent evidence for its location.</p> <p>(MacRaev. Malloy, 98 N. C., 159; State v. Arnold, lSIrecl.. 184; State v. G-ailor, 71 N. C., 88; Sasser v. Herring, 3 Dev., 340; Fry v. Ourrie, 91 N. C., 436; cited and approved).</p>

This was a civil actioN, tried before Boykin, Judge, and a jury, at January Term, 1886, of the Superior Court of Rob-esoN County, on an appeal from a justice of the peace.

The plaintiff alleges that he, as owner of an undivided moiety of -the land in his petition described, consisting of several parts, and lying in the city of Charlotte, is a tenant in common with the defendant, to whom the other moiety belongs, and demands a partition thereof, which cannot be effected, except by sale, without injury to the interest of the tenants.

Civil ACTION, tried before Gilmer, Judge, and a jury, at December Term, 1885, of Gtttilford Superior Court. This action, begun before a justice of the peace on May 23d, 1884, and after judgment, removed by defendant’s appeal to tlie Superior Court, is upon two notes under seal, each in the sum of $85, and dated and bearing interest from July 8th, 1882, executed to W. H. McDaniel or bearer, and due at nine and twelve months respectively.

<p>Special PROCEEDING for partition, heard on issues joined before the Clerk, before Clark, Judge, and a jury, at August Term, 1886, of the Superior Court of LENOIR County.</p> <p>The defendant appealed.</p> <p>The facts appear in the opinion.</p>

<p>Landlord and tenant — Estoppel—Evidence.</p> <p>1. Under the present system, a judgment in an action to recover land is as complete an estoppel as in any other action.</p> <p>2. A tenant is estopped to deny his landlord’s title, but when the plaintiff fails to show any title in himself, and relies entirely on this estoppel, the judgment should only be that he recover the possession, and the defendant should be left free to assert any title he may have in another action.</p> <p>3. Where the plaintiff sued for two tracts of land, and the defendant denied there was any contract of renting as to one of them, and the plaintiff testified that he intended to rent all the land he had title to, and that the defendant had the right to cultivate both tracts, but that he did not expressly mention the one in dispute; It was held, sufficient evidence to extend the estoppel to both tracts.</p> <p>{Riley v. Jordan, 75 N. C., 180; Pate v. Turner, 94 N. C., 47; cited and approved).</p>

<p>Civil actiox, tried before Graves, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Halifax county.</p> <p>The action, commenced against P. E. Blankenship, is to recover possession of a lot in the town of Weldon, in his occupation, which formerly belonged to N. M. Long, who conveyed it to Annie T., wife of Lawrence F. Larkin, and the two last named, on December 1st, 1880, made a deed therefor to the plaintiff. The said Blankenship died before answering, and Mary E., his widow, and William Blankenship, his son, and sole heir at law, an infant, are made parties defendant in his stead.</p> <p>The said William, by his guardian ad litem, puts in an answer denying the plaintiff's claim, and setting up an equitable defence of the following import;</p> <p>He alleges that his deceased father owned another lot in Weldon, described in the answer as bounded by Second street, North street, and the lands of L. J. Pair, which, under an agreement with said Lawrence F. Larkin, was to be exchanged for that now in suit, and each party to secure and pass a good title to the lot to be conveyed; and the deed of conveyance from Blankenship to be made to the wife of the said Lawrence E., the latter contracting in equalizing values, to furnish the lumber needed to erect buildings on the lot in suit, and to obtain title thereto from said Long; that in pursuance of said agreement, the said Blankenship delivered possession of his lot to said Annie T., and received possession of the other from Larkin, and with the materials furnished by him, put up buildings thereon, which, in his estimation, have enhanced the value thereof more than one thousand dollars; that Long, consenting to the occupation, soon after executed a deed for the premises to said Lawrence E. at his instance and direction, and the latter made a deed therefor to said Blankenship, which was left with his wife, and by her destroyed; that said Lawrence, at his wife’s instigation, then surrendered Long’s deed to him, and procured the execution of another for the lot to said Annie T., and this is alleged to have been done to defraud the said Blankenship, who remained in possession of the lot so improved up to the time of his death, while Larkin also continued in possession of the lot taken in the exchange, and as if owner, conveyed the same by mortage on March 10th, 1879, to William H. Day, to secure liabilities therein recited and set out; that the said Annie T. was well aware of the agreement for exchange and the action of the parties in furtherance of it, as was the plaintiff, to whom the deed was made as a mere cover and device to complicate the controversy and embarras the said Blankenship, and that Larkin and wife have moved from the State, and their residence is unknown. The plaintiff in his replication controverts all the allegations of fact out of which the defendants asserted equity arises.</p> <p>Issues were submitted to the jury, which with the responses, are set out in the judgment, as follows :</p> <p>“1. Did L. F. Larkin agree in writing to convey the land in controversy to P. E. Blankenship? Answer: Yes.</p> <p>“ 2. Did L. F. Larkin pay N. M. Long the purchase money for the locus in quo? Answer: Yes.</p> <p>“ 3. Did L. F. Larkin sign and execute a deed to the locus in quo to P. E. Blankenship? Answer: Signed, but did not execute.</p> <p>“4. Was such paper writing from L. F. Larkin to Blankenship destroyed by Annie T. Larkin? Answer: Yes.</p> <p>“5. Did Annie T. Larkin join with her husband in executing Exhibit ‘A ’? Answer: Yes.</p> <p>“ 6. Has Annie T. Larkin received the rents from the place on Second street from March, 1877, till January, 1882, claiming the said property as her own ? Answer: Yes.</p> <p>“7. Hid J. H. MaGee have notice of the claim of the defendants at the time of his purchase? Answer: Yes.</p> <p>“ 8. Has P. E. Blankenship made permanent and valuable improvements on the locas in quo by which the value of said lot is enhanced? Answer: Yes.</p> <p>“ 9. How much, if any, is the value of said lot enhanced bj permanent improvements put on it by the defendant? Answer : $1,066.</p> <p>“10. What was the annual rental value of Blankenship place? Answer: $120 per annum.</p> <p>“11. Hid L. F. Larkin procure the deed from N. M. Long to be made to his wife with the intent to defraud P. E. Blankenship ? Answer: It does not appear in evidence.</p> <p>“ 12. Is the plaintiff the owner in fee simple of the land described in the complaint? Answer: Yes.</p> <p>“13. Ho the defendants wrongfully detain possession of said land from the plaintiff? Answer: No.</p> <p>“14. What damages has the plaintiff sustained by reason of such detention of possession? Answer: $120 per annum.</p> <p>“ The three last issues submitted by the plaintiff.”</p> <p>On this verdict, the Court gave the following judgment:</p> <p>“It is ordered; adjudged and decreed that the plaintiff, Jas. H. MaGee, holds the real estate in the complaint specified and described, as a trustee for L. F. Larkin; and it is further ordered and decreed that the said Jas. IT. MaGee execute and deliver to the defendants a deed in fee simple for the real estate in the complaint described. It is further ordered and decreed that the defendant Mary E. Blankenship and the defendant Jno. T. Grogoiy, guardian ad litem to the infant defendant, William Blankenship, execute to L. F. Lar-kin a deed in fee simple to the real estate on Second street, in the town of Weldon, North Carolina, which is fully described in the defendants’ answer, and that said deeds be recorded, in the office of register of deeds for Halifax county, North Carolina; and it is further adjudged that the defendants recover of the plaintiff and his prosecution bond the costs of this ación, to be taxed by the clerk.”</p> <p>From this judgment the plaintiff appealed.</p>

<p>This was an appeal from the appraisers allotting a homestead, taken under §520 of The Code, tried at the Spring-Term, 1885, of the Superior Court of Cumberland county, before Avery, Judge.</p> <p>The sheriff of Cumberland county had in his hands two executions, one in favor of the People’s National Bank, to the use of N. W. Ray, and the other in favor of A. A. McKethan and others, both against A. G. Thornton. The sheriff appointed appraisers to lay off and assign to A. G. Thornton his homestead and personal property exemption. He owned a lot in the town of Fayetteville on which he resided, containing about one and a half acres of land. There were situated upon the lot a dwelling-house, several other buildings, a well, and a garden, planted at the time of laying off the homestead. It was admitted that the lot with the buildings, &c., was worth more than a thousand dollars, and the land without the buildings not more than six hundred dollars.</p> <p>The appraisers made the following return: “We have viewed and appraised the homestead of the said A. Gr. Thornton, and the dwelling and buildings thereon owned and occupied by said A. Gr. Thornton as a homestead, to be set apart to him as a homestead, to be worth one thousand dollars and that the tract is bounded as follows: The dwelling-house on north of Laman street, Fayetteville, occupied by the defendant, fronting on Laman street, and running a straight line with the yard fence separating the house yard from the garden, and extending the line of the fence northward in a straight line, as it now runs, say northward to Jas. Tucker’s line, exempting all of said lot that lies on the western side of the above described line, and it is therefore exempted from sale under execution according to law.</p> <p>“ This leaves all east of said line, including the garden and stables, as not included in the exemption.</p> <p>“ At the same time and place, we viewed and appraised at the values annexed, the following articles of personal property selected by said A. Gr. Thornton:</p> <p>The household and kitchen furniture, bedding, tableware, garden utensils, silverware, &c.,-$315.00</p> <p>Three head of cattle,_ 20.00</p> <p>$335.00</p> <p>Four chattel mortgages : B. Jemigan,-$10.00</p> <p>J. C. Blocker,_50.00</p> <p>John Cooper,_25.00</p> <p>T. A. Hodges,_10.00</p> <p>95.00</p> <p>Total,_$430.00</p> <p>which we declare to be a fair valuation, and that the said articles are exempt under said execution.”</p> <p>The defendant’s well from which he gets water, is outside of the homestead allotted, and so is the stable and garden, which was then planted. The line extending from the garden fence runs through the defendant’s smokehouse, which is twelve feet wide by eighteen feet long, so as to cut off one foot and a half at the side, leaving nearly the whole of the smokehouse on the excess, and the same line runs through an outhouse, one room of which was occupied by the defendant’s cook, and the other by a tenant, so as to leave one foot and a half of the buildings on the homestead.</p> <p>The defendant, A. G. Thornton, objects to the allotment of the homestead and personal property exemptions laid off to him under the foregoing executions, and assigns the following grounds therefor.</p> <p>“ 1. As to the homestead. — The lot of land is in one tract or lot of about one and one-half acres under one enclosure, was valued at six hundred dollars, and the dwelling and buildings used therewith were valued at eleven hundred dollars, making a total valuation of seventeen hundred dollars, and the lot was so cut up and apportioned to the defendant, as to leave him only about one-half an acre of land, with the dwelling and a part of the buildings used therewith, which •was valued at one thousand dollars, as a homestead.</p> <p>“ The defendant objects and contends that he is entitled to a homestead in land of the value of one thousand dollars, and “ the dwellings and buildings used therewith ” belong and are incident to, the homestead in. land, and are not to have additional value in the valuation of the homestead under the Constitution and laws of North Carolina.</p> <p>“ 2. That the smoke house, stable and outhouse on the premises are “ buildings used therewith,” and that they, together with his garden, which was planted, his cow lot, and well from which he and his family were supplied with water, were cut off by the assessors, and under the allotment which they have made in their return, form a part of the excess proposed to be sold under the executions aforesaid.</p> <p>“3. That the smokehouse, stable and outhouse, together with the garden, well, and cow lot, ought to be a part of the homestead, and are but incidents of the same, and should have been included in the allotment thereof, regardless of the additional value of the same.</p> <p>“ 4. That seeing that his lot was to be cut up in portions, the defendant notified the assessors that he claimed the right to make his selection, which was not allowed him.</p> <p>“5. That as the land upon which the “dwelling and buildings used therewith” were erected is worth only six hundred dollars, there was no excess upon which a levy could legally be made to satisfy the foregoing or any other executions.</p> <p>“ 0. That said homestead as laid off by the assessors was not fixed and described by metes and bounds, as required by the laws of North Carolina.</p> <p>“7. That at the time of said assessment, the defendant exhibted to the assessors two certain mortgages on the entire lot of land, one in favor of Tiros. C. "Whitfield, and the other in favor of A. G. Brady, upon the latter of which the defendant, while denying that the debt the mortgage was given to secure was due in full, admitted that a part of the same was due, and the entire amount of the Whitfield mortgage was and is yet due, and the Brady debt and mortgage was in litigation; and while claiming that the valuation of the lot of land was only to be made and the “ dwelling and buildings used therewith” were incidents of and belonged to the homestead, yet he insisted that if the assessors should divide the land and find what they call an excess, that the excess aforesaid was liable to the satisfaction of the mortgage debts first, in exoneration of his homestead, and now insists that such is the plain interpretation of the Constitution of North Carolina, Art. X. §2.</p> <p>“As to the personal property exemption. — The defendant objects that, the said appraisers failed to make or return a descriptive list of the same or the value of the articles exempted as required by law.”</p> <p>The Court held that it was not necessary to describe the land allotted by giving the course and distance of each of the boundary lines in the return, it being admitted that the lot on which the defendant lived was divided into two lots, by said line. The defendant contended that the returns should set forth the metes and bounds, giving the course and length of each of the boundary lines, and excepted to the ruling of the Court.</p> <p>The Court also held, that the mortgagees, T. C. Whitfield and A. Gr. Brady, not being parties to this proceeding, it was not material to ascertain whether either had a lien prior to that of the plaintiff in either of the executions. That the question raised by counsel would only arise when the proper parties should appear before the Court, and aslc a ruling as to the disposition of the fund arising from the sale of the excess.</p> <p>To this ruling the defendant excepted. The Court overruled all the objections of the defendant to the returns of the appraisers, and confirmed their report, from which judgment the defendant appealed.</p>

This was a civil action to recover land, tried before Bog-Jcin, Judge, and a jury, at November Term, 1885, of Diti/iN Superior Court. The plaintiff in his complaint alleged that lie was the owner in fee simple of the land described in the complaint, and entitled to the immediate possession of the same, and that the defendant wrongfully withheld the possession from him.

This was a CRIMINAL aotioN, tried before MacRae, Jv/lge, at May Term, 188(>, of Row am Superior Court.

<p>The defendant wan tried and convicted at July Term, 188(5, of the Criminal Court of Nkw Hanover, before Meares, Judge, for an assault and battery, and from the judgment thereon pronounced against him, he appealed.</p> <p>The defendant is charged, in the ordinary form of an indictment, with an assault and battery committed upon the person of Mary C. -Jones, who, though not so designated, is his daughter, and was then sixteen years of age. Upon the trial, she testified that the defendant was a man of bad temper and frequently whipped her without any cause; that on one occasion he whipped her at the gate in front of his house, giving her about twenty-five blows with a switch, or small limb, about the size of one’s thumb or forefinger, with such force as to raise whelks upon her back, and then going into the house, ho soon returned and gave her five blows more with the same switch, choked her, and threw her violently to the ground, causing a dislocation of her thumb] joint; that, slie had given him no offence; that she did not know for what she was beaten, nor did he give her any reason for it during the time. No permanent injury was inflicted upon her person. There was other corroborative testimony, and one witness saw her tongue hanging out of her mouth while being choked. The defendant and his wife, step^ mother of the girl, swore that she was habitually disobedient, had several times stolen money, and was chastised at the time spoken of for stealing some cents from her father; that he never whipped her except for correction, and this he was often compelled to do for that purpose, and had never administered punishment under the impulse of high temper or from malice.</p> <p>The defendant’s counsel requested an instruction that in order to a conviction, it was incumbent on the State to show that some permanent injury liad been inflicted.</p> <p>This was refused, and the jury was charged that “a parent had the right to inflict punishment on his child for the purpose of correction, but the punishment must, not be ‘exces-’ sive and cruel,’ nor must it be ‘ to gratify malicious motives that if the whipping was such as described by the daughter, there would arise a question as to the severity and extent of the punishment; that if the jury were convinced that it was cruel and excessive, the defendant would be guilty; that it was not necessary that it should result in a permanent injury to her, and if it was excessive and era,el it would be sufficient to make the defendant guilty.”</p>

LymotmeNt for larceny, tried before Boykin., Judge, at August Term, 188(5, of Irkdelu Superior Court. The following is the material part of the ease stated on appeal': There was evidence tending to prove that the defendant had stolen certain tobacco, the property of one Kennedy, and had sold it to one Combs. The wife of the said Combs ivas introduced by the State as a witness, and testified: “ My husband has been buying tobacco from the defendant for about two years.

This was a CRIMINAL action, tried before Philips, Judge, at •July Term, 1886, of Wayne Superior Court. The indictment contained three counts, charging, in the first, the larceny of a mule belonging to Hiram Ginn; in the second, the wilful and felonious taking and carrying away the mule with intent to use it for a special and tempo-ary purpose; in the third, with the unlawful receiving of the stolen mule, with knowledge thereof, under §§1066, 1067, and 1075 of The Code.

<p>This was a CRIMINAL actiox, tried at the October Term, 1885, of the Inferior Court of Buxcojibk County.</p> <p>From the judgment upon a verdict of guilty, the defendant appealed to the Superior Court, whence the judgment in the Inferior Court being affirmed, he appealed to the Supreme Court.</p> <p>The defendant was charged with obstructing a public road and common highway leading from the city of Asheville in Buncombe County towards and into Arden in said county.</p> <p>The State proved, -with a view to show that the defendant had been duly organized as a corporation under the Act of 1880, as charged in the indictment, that it was professing to carry out the requirements of said Act; that there was a railroad known as the Western North Carolina Railroad ; that it had agents who issued tickets, received freights and signed receipts in the name of the Western North Carolina Railroad Company. Defendant objected to the introduction of this testimony and the Coxirt overruled the objection. That often there were five or six wagons at a time stopped by the cars from one half hour to three hours and a half, standing across the said highway, which is much traveled. The public road is fifty or sixty yards from the depot at which there is a side track. There is a steep grade beyond the depot, but there is room for cars to stand on the sidetrack without stopping the road. The Buncombe Turnpike Company had control of the road until about three years ago, when the county took charge and appointed an overseer and hands who have worked it since; that the Buncombe Turnpike Company was chartered in 1824, (Rev. Stat. vol. II, p. 418,) by the State The charter was attempted to be surrendered by the directors, who had a meeting and agreed to surrender it to the commissioners of Henderson and Buncombe, and authorized the President to carry out this purpose. There was no meeting of the stockholders.</p> <p>The defendant objected to the introduction of all this testimony, but the Court overruled the objection, and the defendant excepted.</p> <p>J. R. Patterson, who is the clerk of the Board of Commissioners of Buncombe county, was introduced and testified as follows: That there is the following record of the surrender of the charter of the Turnpike Company: “That the surrender of the charter and road of the Buncombe Turnpike Company be accepted. Notice to be issued the supervisors of roads of Asheville and Limestone townships.”</p> <p>The defendant objected to the introduction of this record. Objection overruled, and defendant excepted.</p> <p>The defendant asked the Court to charge the jury:</p> <p>1. That there was no evidence that there was a public road and common highway, such as it is indictable to obstruct, leading from the city of Asheville towards and into Arden, as charged in the indictment, and that they should return a verdict of not guilty.</p> <p>2. That there was no evidence of the surrender by the Buncombe Turnpike Company of its charter and property to the county commissioners; that the testimony that three of the directors had met and authorized the president to surrender the charter and property of the company to the county commissioners was no evidence of its surrender, and they could not consider the same in making up their verdict.</p> <p>3. That the record or memorandum made by the clerk of the Board of Commissioners of Buncombe county was no evidence of the surrender of the charter and property of the corporation, and that they could not consider the same.</p> <p>4. That there are but two ways in which a public road and common highway, such as it is indictable to obstruct, can be established in North Carolina, to-wit: 1. By an adjudication that such be established, on petition and notice, &c., bjr the proper tribunal vested with the jurisdiction to make such an adjudication. 2. By a dedication of the road to the public, which may be actual, or presumed by user by the public for twenty years; and that as there was no proof of an adjudication establishing this road as the statute directs, nor any dedication, either actual or presumed, the defendant is not guilty, and they will return a verdict to that effect.</p> <p>5. That the Buncombe Turnpike Company having been duly chartered and organized under an act of the General Assembly, could not surrender its charter and property to the commissioners, for said commissioners have no authority to accept such surrender nor to compel it, and any attempted surrender which may have been made, and any acceptance thereof, and appointment of overseers, &c., by said commissioners are a nullity and not evidence for the jury to consider. That the directors had no authority or power to surrender the charter and property of the corporation; that the-only wajs in which the charter of the Buncombe Turnpike Company could be annulled would be by a judgment for that purpose of the proper judicial tribunal, the repeal of' the charter by the legislature, forfeiture for non-user or other cause; and there being no evidence of such judgment by any tribunal of competent jurisdiction, nor any evidence-that the legislature has repealed the charter, the jury will acquit the defendant, it being admitted that the Buncombe Turnpike Company was chartered and organized as stated.</p> <p>6. That there would be no dedication of'this road to the public in such a sense as to make it a public road and common highway, by a user of it by the public, the appointment of an overseers, working it with hands, &c., for three years.</p> <p>7. That there is no evidence of an actual dedication of this-road to the public.</p> <p>The Court refused to give any of the special instructions, and defendant excepted.</p> <p>The Court charged the jury as follows :</p> <p>That to convict the defendant the jury must be satisfied that the road was a public road and common highway, as charged in the indictment, and that such public road and common highway must be established in one of three ways:</p> <p>1. By actual dedication by the owners of the soil.</p> <p>2. By an adjudication of the proper Court.</p> <p>3. By user by the public by overseers and hands working it, without any dedications or adjudications, for the space of twenty years at least.</p> <p>That if the jury shall find that up to three years ago this road was owned and worked by the Buncombe Turnpike Company, a corporation chartered b3 the Legislature, then the Court charges them that this is not a public road and common highway, unless it has been actually dedicated by said corporation to the public.</p> <p>There being no evidence of this road ever having been laid out and adjudged to b'e a public road and common highway by any court having jurisdiction to make such adjudication, it then becomes the duty of the jury to find whether there has been any actual dedications of the road to the public.</p> <p>The Court charged the jury, that the meeting of the directors, if they shall find there was such meeting, and the authorizing by them of the surrender of the charter to the county commissioners, is evidence which they can consider in determining whether there was such surrender by the president.</p> <p>The record which was kept by the cleric of the board of commissioners, and which was introduced in evidence, can also be considered by the jury in determining whether the turnpike company ever made such surrender. If the jury shall believe from such evidence that the Buncombe Turnpike Company made such surrender to the commissioners of Buncombe county, then the Court charged the jury that the county commissioners were the proper tribunal to whom to make such surrender, and the same was an actual dedication of said road to the public, and the same would be from the time of such surrender a public road and common highway, such as it would be indictable to obstruct. That if the jury find that this road is a public road and common highway, then it will be their duty to find whether the defendant has obstructed the same or not.</p> <p>The Court charged the jury that the defendant has the right to occupy the public roads and common highways of the country which it crosses, so long as may be necessary for it to do so in crossing the same, but it has no right to obstruct them witli its cars for any longer time than is actually necessary for the purpose of allowing it to use the franchise given by its charter.</p> <p>The Court charged the jury that if they shall find that the defendant obstructed or occupied said road with its cars for thirty minutes, it is guilty of obstructing a public highway. The defendant excepted.</p>

Tills is am indictment for Burglary with intent to commit Rai>k, tried before Clark, Judge, at the August Term, 188(5, of .Jo.yks Superior Court. The only exceptions taken in the case were those taken upon the challenges of jurors. Thomas Btilley, a juror of the special venire, on his “voir dire,” said that he had formed, and expressed the opinion that the prisoner was guilty.

<p>This was a orimiNal actiox, tried in the Criminal Court of’New ITaxover county, before Meares, Judge, at May Term, 1886.</p> <p>The facts are stated in the opinion.</p>

This was an indktmknt against the defendant for tearing down and demolishing a certain house alleged to be the property of one F. T. Baldwin, tried before Boykin, Judge, at the February Term, 1886, of Richmond ¡Superior Court.

This was an iNdictjibxt uok maNslauoiitkk, tried before Montgomery, Judge, and a jury, at Fall Term, 1886, of YaN-cky Superior Court.

This was a Criminal action, tried before Clark, Judge, at Spring Term, 1886, of Alamance Superior Court. 'The facts upon which the opinion proceeded are stated therein.

This was a CRnnAb actiom, tried at May Term, 18S8, of the ¡Superior Court of Catawba county, before Avery, Judge. The facts as admitted were, that one Symon, a justice of the peace, had issued a warrant for the arrest of one Monroe Null, on a charge of bastardy, which was placed in the hands of one Philo Lail. The Court held that the justice did not have a right to depute Lail, who was not an officer, to execute it.

<p>This was a CRIMINAL action, tried before Clark, Judge, at the August Term, 1886, of the Superior Court of Lenoir county.</p> <p>The indictment contained two counts, one for stealing a hog, and the other for receiving the same, knowing it to be stolen. The defendant was indicted with one Howard. They were both convicted, the verdict being general, and after sentence, the defendant Stroud only appealed.</p> <p>There was no evidence offered on the part of the defendants. That introduced by the State ivas as follows: Timothy Spence testified, that Stroud told him to get Howard and go oil a certain night and get the hogs out of Uzzel’s pen; that he did so, and reported the fact, the same night to Stroud, who said — “ kill them and put them in my smoke-house ” • then he (Stroud) said — “there would be a search warrant out, and to put the meat under a hogshead in an old still-liouse,” which was back of Stroud’s house and near the line of Stroud’s land, but there was conflicting evidence as to which side of the line the still-house was situated; that he carried the meat, in company with Pat Stewart, and put it in the still-house, as directed by Stroud; that since this indictment, Stroud told him that he had heard that he (witness) would turn state’s evidence, and to keep his mouth shut.</p> <p>Pat Stewart testified, that he saw the hogs knocked down and stuck ; it was at night, and they were carried to the field back of Stroud’s; the next night 'Spence met him there coming from the direction of Stroud’s house, and told him to carry the meat to the still-house, and he carried it there in a cart.</p> <p>Charles Holland testified, that a week or two after that, Stroud was complaining that some meat he had at the still-house was gone, and wanted to know if he knew what had become of it; that Spence said the meat was gone, and he would give one hundred dollars to know what had become of it.</p> <p>James Hardy testified,that Stroud came to his house after the indictment was found, and said that he understood that Spence had turned state’s evidence about Uzzel’s hogs, and if he had, he would ruin him, because Spence knew all about it. Afterwards,'in same conversation, Stroud said he would not mind it if Spence would tell the truth.</p> <p>Bryant Rouse testified, that he heard Stroud say that he knew the barrel at the still-house that the meat was in. Stroud then charged that Charles Holland had stolen the meat out of the still-house.</p> <p>Walter Spence testified, that he went with his father the night the hogs were stolen, and saw Howard and Stewart kill them; the next night he went with his father to Stroud’s, and in going met Richard Rouse on the road. Stroud first told his father to carry the meat to Charles Holland’s, but after studying awhile, he told him to carry it to the old still place. They went to the place where the hogs were, and told Pat Stewart what Stroud said, and together they carried the meat in a cart to the still-house as directed by Stroud. The hogs were stolen and cleaned on Tuesday night, and on the next night they were carried as directed by Stroud to the still-house.</p> <p>Richard Rouse testified, that he met Timothy Spence and Walter Spence going towards Stroud’s at night, and the next day, attracted by the flight of some buzzards, he saw where some hogs had been cleaned, at the place described by the other State’s witnesses as the place where the hogs had been cleaned, and he also saw a cart tract going thence towards the still-house.</p> <p>There was also evidence that the general character of James Hardy was good.</p> <p>The defendant’s counsel asked for several special instructions to the jury, to-wit:</p> <p>1. That to convict the defendant of larceny, the jury must be satisfied that he was present at the time of the commission of the offence, or so near by that he could give aid and comfort to the party actually doing the stealing; that the jury cannot convict the defendant under this bill of indictment, unless they find as a fact that he was present at the commission of the offence.</p> <p>The Court declined to give this instruction, and instead, charged that all persons aiding, counseling and abetting a larceny, whether present at the commission of the offence or not, are principals, and equally guilty with the party actually committing the larceny, and if the jury believe beyond a reasonable doubt, that Stroud counseled and procured the hogs to be stolen, he was as guilty, though not immediately present.</p> <p>To this charge and refusal to give the charge as requested, the prisoner excepted.</p> <p>2. At the request of the prisoner the Court charged: That to convict him of receiving stolen goods, he must actually have received the goods, and known at the moment of receiving them that they were stolen. But the Court added, that “ if the prisoner Stroud directed the meat to be carried to a certain place near his home, knowing that it was stolen meat, and it was so carried and put there by his orders, it was a receiving in law.” To this modification the prisoner excepted.</p> <p>3. The prisoner asked the farther instruction, that the jury ought not to convict upon the unsupported testimony of an accomplice.</p> <p>This the Court refused to give, and charged instead: " That the jury ought to be cautious and careful about convicting upon the unsupported evidence of accomplices; but they were the sole judges of the testimony; they were to say whether the testimony offered by the State to corroborate the testimony of Timothy Spence and his son, and Pat Stewart was to be believed, or any part of it, and how far it corroborated them. Thus while a jury should be slow to convict upon the unsupported testimony of accomplices, yet it would justify a verdict, if it was sufficient in their minds to produce an entire conviction of the prisoner’s guilt beyond a reasonable doubt.” To the charge as given, and the refusal to give that prayed, the prisoner excepted.</p>

<p>INDICTMENT, tried before Philips, Judge, at July Criminal 'Term, 1886, of Waice Superior Court.</p> <p>The facts fully appear in the opinion.</p> <p>The defendant appealed.</p>

<p>Bastard, concealing birth of — Evidence—Homicide—Former Conviction — Arrest of Judgment.</p> <p>1. Upon the trial of an. indictment for infanticide, where it appeared there were no marks of violence upon the deceased, it was not erroneous to admit the testimony of an expert that there were several modes of causing death without leaving upon the "body any evidence of the means employed.</p> <p>2. A former conviction for concealing the birth of a bastard child is no defence to an indictment for the murder of such child. The Code. §1004.</p> <p>3. Former conviction, or acquittal, to be available as a defence, must be pleaded; it cannot be considered on a motion to arrest the judgment.</p>

This was an appeal from the judgment of MacRae, Judge, at Fall Term, 1886, of Wilkes Superior Court. The prisoner was charged with and convicted of having committed rape upon his daughter, Louisa Cardwell, at April Term, 1886, of Wilkes Superior Court, and sentenced to death.

<p>Judge’s Charge — Indictment—Wilful Burning.</p> <p>1. An inadvertent, erroneous instruction to the jury, accompanied by an explanation, or modification, which in effect corrects the error, will not be considered sufficient to award a new trial, unless it clearly appears that the jury was thereby misled and the appellant suffered wrong.</p> <p>2. The statutory offence of wilful burning of a gin house is a misdemeanor; and an averment in the indictment that it was done felo-niously — the necessary descriptive terms being employed' — will be treated as mere surplusage.</p> <p>(State v. Thorne, 81 N. C., 555; State v. Edwards, 90 N. C., 710; State v. Watts, 82 N. C., 656, and State v. Slagle, 83 N. C., 658, cited and approved).</p>

<p>This was a CRIMINAL action, tried before Guclger, Judge, at Spring Term, 1886, of the Superior Court of Perquimans county.</p> <p>The facts are fully stated in the opinion.</p>

<p>Assignment of Error — Indictment—Larceny.</p> <p>1. A general statement that the appellant “ excepted to the whole of the charge of the Court,” is too vague, and will not be considered on appeal.</p> <p>2. An indictment for larceny should describe the property alleged to be stolen with such particularity as will enable the Court to see that it is the subject of larceny; that will enable the accused to prepare any defence he may have, and protect him against a subsequent prosecution for the same act.</p> <p>3. The charge that the defendant stole “ three bushels of corn,” is supported by proof that he stole three bushels of com “ in the ear.”</p> <p>(State v. Harris', 64 N. C., 167 ; State v. Campbell, 76 N. C., 261; and State v. Martin, 82 N. C., 672; cited and approved).</p>

This ivas an indictment for retailing spirituous liquors, tried at Spring Term, 1886, of Dake Superior Court, before Shepherd,, Judge.

INDICTMENT for incest, tried before Shepherd, Judge, at Spring Term, 1886, of Edgecombe Superior Court. The facts presented upon the appeal are fully stated in the opinion of the Court.

<p>Evidence — Adultery—Punishment.</p> <p>1. Upon the trial of an indictment for adultery, it is competent to prove that the defendant had a wife living at the time of the commission of offence; and it is not error to admit proof of this fact, though it is not denied by the defendant.</p> <p>2. Persons convicted of fornication and adultery may be imprisoned in the common jail for a period to be fixed in the discretion of the Court. The Code* §§1041 and 1097.</p> <p>3. The Court has power, during the Term, to correct or modify an un-executed judgment in criminal as well as in civil actions.</p> <p>(State v. Elia son, 91 N. C., 564; State v. Oase, 03 N. C., 545; State v. McNeal, 75 N. C., 15; State v. Jackson, 82 N. C., 565; In re Brittain, 93 N. C., 587, cited and approved).</p>

The defendant was tried at Spring Term, 1886, of Caldwell Superior Court, before Graves, Judge, and a verdict of guilty being returned, he moved an arrest of the judgment, which motion was granted, and from a judgment against the State, the Solicitor appealed.

The defendant was tried and convicted for larceny, at Spring Term, 1886, of RICHMOND Superior Court, before Boykin, Judge, and from the judgment pronounced against him he appealed.

The defendant was tried and convicted at Spring Term, 1886, of Guilford Superior Court, before Glarh, Judge, for the crime of seductioN. The facts are stated in the opinion of the Court.

. MotioN for judgment upon forfeited recognizance and to amend record, heard before Philips, Judge, at October Criminal Term, 1886, of Wake Superior Court. This was a scire facias issued by the State against the defendant as bail of one Keith to show cause why the State should not have judgment against him for one hundred dollars, due by a recognizance entered into by said Keith at July Term, 1886, of Wake Superior Court, in which he had made default.

This was an indictment for selling intoxicating liquor on Sunday, tried before Philips, Judge, at July Criminal Term, 1886, of the Superior Court of Waice county.

<p>Appeal — Judgment— Verdict, Special.</p> <p>If the jury return a special verdict, it is the duty of the Court to declare the law thereon, and cause a verdict to be entered in accordance therewith; then it should proceed to render judgment; and no aji-peal will lie until such judgment is pronounced.</p>

Ckimtnal aotion, tried before Connor, Judge, at February Criminal Term, 1886, of Wake Superior court. Tlie defendant was convicted, and from the judgment tlioreon pronounced against him, appealed. The facts necessary to an understanding of the questions raised upon the appeal, are stated in the opinion.

The defendant was tried and convicted at August Term, 1886, of the Superior Court of Lemoir county, before Clark, Judge, of the crime of embracery, and from the judgment thereon, appealed to the Supreme Court. The case is stated in the opinion.

The prisoner was charged with the crime of murder in a bill of indictment found by the grand jury at the Term of Iredell Superior Court, held on the fourth Monday before the first Monday in September, 1885, was put on trial, found guilty and sentenced to death at the succeeding term, held on the ninth Monday after the said first Monday in September.

<p>INDICTMENT, tried before Meares, Judge, and a jury, at September Term, 1886, of New HaNOVek Criminal Court.</p> <p>The defendant was tried at the September Term, 1886, oí the Criminal Court of New Hanover county, upon the charge of slandering the character of an innocent woman in violation of §1113 of The Code. The indictment was in the following form:</p> <p>“The jurors for the State, upon their oath, present that J. T. Edens, on the first day of April, 1886, at and in the county aforesaid, attempting wantonly and maliciously to injure and destroy the reputation of one Addie Edens, being an innocent and virtuous woman, did, by words spoken, declare, in substance, that the said Addie Edens was an incontinent woman, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>The State proved that the defendant used language of the most vulgar and indecent character, which, in substance, was a direct and unmistakable charge of in confinen cy against the woman in question, who was his wife, from whom he had separated.</p> <p>The defendant admitted that he had used language amounting to a charge of incontinency against his wife, but attempted to justify upon the ground that she was not an innocent woman, and that before their marriage she had had sexual intercourse with other men.</p> <p>The defendant and his wife were married in July, 1886, and he separated from her in a few days thereafter.</p> <p>The defendant requested the Court to instruct the jury that as a matter of law, a husband cannot slander the reputation of his wife.</p> <p>This instruction was refused, and the Court charged the jury that, if they were satisfied beyond a reasonable doubt that the prosecutrix was a virtuous or innocent woman, inasmuch as the language had been admitted by the defendant, that, they ought to c.omdct him. The defendant excepted.</p> <p>After verdict of guilty, the defendant submitttd a motion in arrest of judgment, upon the ground that the bill of indictment does not set forth the language nor the substance of the language alleged to have been used by the defendant, and upon which the charge is based. This motion was overruled, and judgment being pronounced, the defendant appealed.</p>

<p>InuictmbNt, tried before Clark, Judge, at the November .Special Criminal Term, 1885, of Wake Superior Court.</p> <p>The 'indictment charges the defendant, Dunn, with the wilful and unlawful removal of the gates and fence enclosing a pasture field of Norfleet Braswell and others, wherein live stock was confined, within territory over which the stock law prevailed, in violation of §§1062 and 2820 of The Code.</p> <p>On the trial before the jury upon the plea of not guilty, under instructions from the Court, a verdict of acquittal was rendered. Thereupon, on motion, the said Braswell, being-in Court, was declared to be marked as prosecutor, and the -Judge, finding as a fact that the prosecution was frivolous, adjudged that he pay the costs, and stand committed until they were paid, to the county prison, or be confined in such place as the counnty commissioners may direct.</p> <p>To this the said Braswell excepted, as also to the taxation of so large a number of witnesses, and especially to the charge of a Solicitor’s fee.</p> <p>The Judge, upon certificate of counsel, found the witnesses objected to material and necessary, and denied the application to have any of the taxed costs stricken out. From these rulings the prosecutor appeals.</p>