Volume 96 — North Carolina Reports

' Civil action, tried at February Term, 1886, of Iredell Superior Court, before MacRae, Judge. In deference to an intimation of his Honor, at the close of the testimony, that he was not entitled to recover, the plaintiff submitted to a nonsuit and appealed.

Civil ACTION, heard before Shepherd, Judge, at March Term, 1886, of Halifax Superior Court, upon complaint, answer, affidavits, &c., to dissolve an injunction thereto-granted, to restrain the defendants from selling certain lands conveyed to secure the payment of debts by the defendants. His Honor refused to dissolve, and continued the injunction to the hearing. The defendants appealed.

<p>Civil action, tried before Gfudger, Judge, at Spring Term, 1886, of Chowan Superior Court.</p> <p>A jury trial was waived, and judgment having been pronounced upon the facts found by the Court, the plaintiff appealed.</p> <p>The plaintiff was employed by the school committee of district No. 3, in Chowan, for the free education of white children, to teach therein for four months, terminating on January 30,1885, at a compensation of twenty-five dollars per month. Having completed her contract on the day mentioned, she applied for and obtained from the committee an order on the county treasurer, the principal defendant, A. J. Bateman, for the money clue for her services, he then having funds received from his predecessor in office sufficient for the purpose, and payment was refused. Thereupon she instituted the present action on the treasurer’s- official bond against him and the other defendants, his sureties, to recover in damages the amount specified in the order.</p> <p>The defence rests upon the alleged effect of three several acts of the General Assembly, ratified respectively on March 3d, 1883, January 19th, 1885, and February 25th, 1885, whereby the territory constituting the said third district is made a graded school district for the instruction of the same class of children which, it was insisted, displaced and superseded the former district and converted it into a graded school district with enlarged means of usefulness, and hence the plaintiff’s employment was unauthorized and the fund not liable to the orders of the said school committee.</p> <p>The act of March 3d, 1883, forms the graded school district and places the school under the management of a board of trustees who are authorized (§3) “ to employ teachers and do all such acts as shall be necessary to carry on said graded school, and shall be the custodian of all public school property for the white race of said school district.”</p> <p>Section four, more explicit in its bearing upon the matter in controversy, enacts:</p> <p>“ That all public school money which shall from time to time be collected under the general school law for the white race of said school district, and all special school taxes which may from time to time be collected from white persons in said school district, shall be applied for keeping up the said graded school for white children under the orders and directions of said board of graded school trustees for the white race.”</p> <p>A similar provision is made for a graded school for colored children, and then it is enacted that “the treasurer of Chowan and the sureties on his official bond ” shall become “ responsible for the proper disbursement of all moneys collected under this act,” §8.</p> <p>This enactment was repealed at the session of 1885, and another act, entitled “An act to establish the Edenton Graded School,” ratified on the 19th day of January, (Acts 1885, ch. 7,) substituted in its place, in which certain discriminating features in the former, supposed to be obnoxious to the Constitution, and since held to be in Puett v. Commissioners, 94 N. C., 709, are omitted. The essential provisions of this act, so far as they affect the present controversy, may be thus summarized: The Edenton graded school for School District Number Three, of Chowan county, for the white race, is incorporated, and its functions to be exercised by a board of trustees who are to organize by the appointment of a president, secretary and treasurer, of whom the latter is to have charge of the funds, except the public funds in the custody of the county treasurer,” §§1 and 2.</p> <p>The trustees have authority to employ and pay teachers, &e., and “ to do all such acts as may be necessary to carry on said school and to secure its good order,” and all powers and duties formerly vested in the school committee for the white race of said district are vested in said board,” §8.</p> <p>Section four we quote in full: “ The said board shall be custodian of all public school property for the white race of said district, and all unexpended public school money which has been apportioned or collected for the white race of said school district, under the general laws of the State, not applicable to contracts heretofore legally made, and all of (the last word is stricken out by the amendatory act of February 25th, ch. 138,) which shall hereafter from time to time be so collected or apportioned, shall be applied for keeping up said graded school, under the orders and directions of said board, and the treasurer of Chowan county shall pay out the same on the order of said board, approved and signed by its president and secretary; but no order shall be given on the county treasurer until the service or property for which it is given has been furnished in full, and the public funds appropriated to said school shall be drawn from the county treasury at the rate of one tenth thereof for each month the school may have been in operation.”</p>

The orders and judgment from which defendant appealed were made by Gudger, Judge, at Chambers, on the Spring-Circuit, 1886, of the First District. The issues joined upon the pleadings were tried before Shipp, Judge, and a jury, at. Fall Term, 1886, of Pasquotank Superior Court. From the verdict and judgment then rendered the plaintiff appealed.

<p>Action, Joinder of — Division of — Demurrer—Pleading. ,</p> <p>1. A cause of action against a clerk of the Superior Court for damages resulting from malfeasance in accepting an insufficient bond from an administrator, cannot be joined with a cause of action against such administrator and his sureties for a devastavit, the respective liabilities of the parties having no connection. The Gode, §267.</p> <p>2. The provision of The Code, §272, authorizing the Court to direct a division of improperly joined eaases of action, does not extend to the cases where there is also a misjoinder of parties to the action.</p>

<p>Judicial Sales — Infants—Jurisdiction—Parties Judgment— Estoppel.</p> <p>1. The Superior Courts have succeeded to all the jurisdiction of the late Corn-ts of Equity in respect to infants, and they have authority to direct sales of their property, both real and personal, in proper cases.</p> <p>2. The guardian or next friend of an infant is not, properly speaking, a party to the action, although his name appears in the record.</p> <p>3. The next friend of an infant ought always to be appointed by the Court, and really he is an officer of the Court, and under its supervision and control.</p> <p>4. The Court has power, for good cause shown, to remove the next friend of an infant litigant, and appoint another as often as may be necessary.</p> <p>5. It is not essential that the infant should know that an action has been brought in his favor by a next friend, as his incapacity to judge for himself is presumed, but the Court may inquire into the propriety of the action and take such steps as may be necessary.</p> <p>6. Where an infant sues by a next friend he is as much bound by the judgment as an adult, and this rule applies to non-resident as much as to resident infants.</p> <p>7. A judgment for or against an infant, when he appeal's by attorney, but has no guardian or next friend, is not void, but only voidable.</p> <p>8. A guardian appointed in another State has no authority to represent his wards in suits and proceedings in this State, but when he brings suit for them as guardian it will be treated as if he were next friend.</p> <p>9. So, where non-resident infant tenants in common filed an ex parte petition to sell land for jiartition, by their guardian, who was a nonresident; It was held, that the decree of sale was not void, and could not be attacked collaterally.</p>

Motion to continue an injunction to the hearing, made in civil action in the nature of a creditor’s bill, pending in the Superior Court of Vanoe county, heard by Connor, Judge, at Chambers, in Henderson, on March 30, 1886.

Civil action, tried before Gudger, Judge, and a jury, at Spring Term, 1886, of Washington Superior Court. There was a judgment for the plaintiff, and the defendants appealed. The facts fully appear in the opinion.

Civil action, tried before Philips, Judge, at January Term, 1886, of FüANKLin Superior Court.

MOTION to dismiss an attachment, heard before Slvipp, Judge, at Fall Term, 1886, of Daub Superior Court. The following is so much of the case stated on appeal as-it is necessary to set forth here: “ The plaintiff, who was the clerk of the Superior Court of Rare county, issued a summons in his own behalf against the defendant.

<p>Injunctions — Finding of fact by the Supreme Court — Nuisance,</p> <p>1. In applications to continue injunctions to the hearing, the Supreme Court will review the facts and pass upon their sufficiency to warrant the judg-ment appealed from.</p> <p>2. "Where it appeared by the affidavit of two physicians that a sewer used by the defendant was dangerous to the health of the plaintiffs; It was held, no error to continue the injunction against its use to the hearing.</p> <p>8. In such case, it is immaterial that the sewer is also used by others.</p>

<p>Voters— Constitutional Law.</p> <p>1. A majority of the qualified voters and not merely of those voting, must vote in favor of the measure in order to allow a municipal corporation to pledge its faith, loan its credit or contract any debt, under the irrovisions of Art. 7, §7, of the Constitution.</p> <p>2. To constitute a person a qualified voter within the meaning of the Constitution, his name must be entered on the registration book.</p>

Civil ACTION, tried before Boykin, Judge, and a jury, at November Term, 1886, of Rowan Superior Court. The plaintiff alleges in its complaint, that it is the owner of a single bond, duly endorsed by the obligee therein, whereof the following is a copy: “ $750.00. Six months after date, I promise to pay Chas. L. Heitman, or order, seven hundred and fifty dollars, for value received, with interest from date at eight per cent, per annum, payable annually until paid.

<p>Civil actiox, tried before Montgomery, Judge, and a jury, at Fall Term, 1886, of Mitchell Superior Court.</p> <p>This action is brought to recover possession of certain timber-logs, cut on the land mentioned below. The following is so much of the case settled upon appeal as is necessary to present the questions to be decided by the Court:</p> <p>“ The plaintiffs introduced in evidence a grant from the State to them, of date 1870, of two hundred and seventy acres of land lying in Watauga county. The entry of said land was made in Watauga, and the grant based upon the entry, granted land lying in Watauga. By the plaintiffs it was admitted that the land was situated entirely in the county of Mitchell; how near the county line did not appear, and was so situated at the date of the entry and grant aforesaid, but that plaintiffs thought it was in Watauga county. Plaintiffs offered to prove that the line dividing Mitchell and Watauga counties had not been actually surveyed. Objection by defendants; objection sustained, and exception by plaintiffs.”</p> <p>There was evidence that the timber or cherry trees were cut ■on the land covered by the grant, if there was a grant, and that was the only evidence plaintiffs offered of their title to the trees.</p> <p>The Court instructed the jury, that the grant to plaintiffs was void, and that the plaintiffs were not entitled to recover. There was a verdict and judgment for the defendants. The plaintiffs having excepted, appealed to this Court.</p>

This was a petition eok doweu, tried before Avery, Judge, at Spring Term, 1886, of Ruthebeokd Superior Court, the cause having been transferred to the Civil Issue Docket of the said Court, to be tried in Term time, upon issues of law and fact, raised in the pleadings. The only controversy in this Court, is in reference to the tract of land claimed by the defendant Twitty, and both the petitioner and defendant Twitty admit title in Hawkins, prior to September 1st, 1879.

Civil ACTION, tried before Clark, Judge, and a jury, at April Term, 1886, of PersoN Superior Court. This action is prosecuted to establish the plaintiff’s exclusive right to a certain trade mark used in designating tobacco manufactured by it for sale, and to recover damages from the defendant for its alleged invasion by him. Several issues arising out of the conflicting pleadings were passed on by the jury, whose verdict in response is: (1).

Civil ACTION, tried before Shepherd, Judge, and a jury, at Fall Term, 1885, of Currituck Superior Court. The complaint alleges that the plaintiff is the owner of a tract of land lying on the waters of North River, in Curri-tuck county, therein described, and that he has taken out a grant of the land adjacent thereto covered by said waters, for the purpose of erecting a wharf connecting with the shore, under the provisions of §2751 of The Code.

<p>Civil ACTION for the recoveiy of land, tried before Avery, Judge, and a jury, at Spring Term, 1886, of CLEVELAND Superior Court.</p> <p>There was a verdict and judgment for the plaintiffs, and the defendants appealed.</p> <p>The facts appear in the opinion.</p>

This was a civil actioh, tried before Connor, Judge, upon, complaint, answer and demurrer, at October Term, 1886, of the Superior Court of Durham county.

Civil actioN, tried before Shipp, Judge, at September Term, 1886, of PasquotaNK Superior Court.

This was a civil ACTION, tried before Shepherd, Judge, at Fall Term, 1886, of the Superior Court of Gbeene county. The plaintiff alleged that about the year 1854, her father, Wm.

<p>Civil action, tried before MacRae, Judge, and a jury, at Fall Term, 1885, of Anson Superior Court.</p> <p>The plaintiffs brought this action to recover the money due upon the single bond of the defendant, executed by him to Thomas J. Smith, for $2,301.25, dated April 26th, 1875, to be due one day from the date thereof, and which the latter endorsed to the plaintiffs for value after its maturity.</p> <p>In his answer to the complaint, the defendant alleged in general terms, that the said Thomas J. Smith was, at the time he so endorsed the said bond and before that time, justly indebted to him in sundry sums of money, greater than the amount due thereon, as stated in the “ bill of particulars ” annexed to his answer, and he demanded that the several sums mentioned, be set off against the said cause of action of the plaintiffs to the extent of their demands.</p> <p>Among the items of charge mentioned in the bill of particulars, is the third one, stated thus:</p> <p>“Nov. 6. Ain’t paid as surety on note to J. W. Leak, $2,240.00. Int. from 6 March, 1875, to Jan’y 1st, 1877.”</p> <p>On the trial, the defendant put in evidence a power of attorney, of which the following is a copy:</p> <p>“STATE OF NORTH CAROLINA,!</p> <p>ANSON County, j</p> <p>Know all men by these presents, that I, Thos. J. Smith, of Grimes county, Texas, for divers good and sufficient reasons me thereto moving, have nominated, constituted and appointed, and by these presents do nominate, constitute and appoint, my brother William C. Smith, of the county of Anson and State of North Carolina, my true and lawful agent and attorney in fact, for me and in my name and stead, to transact all matters of business, of whatsoever nature and kind in which I have or may have any interest, directly or indirectly, in the State of North Carolina; also in my name and for my use and benefit, to ask and demand for me and recover, all manner of debts or dues or rights or interest to which I may be or am entitled in said State, clear up and settle in such manner as he may deem best my interest in said State, and to execute all manner of convey-anees in my name, to make title to any kind of property, real or personal. And to execute all such other rights, releases and acquittance in my name which may be required in final and complete settlement of my business of every kind and description, and I hereby ratify and confirm whatever my said attorney may thus do, in as full and ample a manner as if I was personally present and did the same myself. This power of attorney relates particularly to my business at New Forestville, in said county and State, in all its branches. I further claim the right to revoke this right at any time I see proper. Given under my hand seal, this the 29th day of January, 1869.”</p> <p>The following is a copy of so much and such parts of the case settled on appeal as is necessary to a correct understanding of the opinion of the Court:</p> <p>“ The defendant was examined on the trial as a witness in his own behalf, and the part of his testimony material here, is as follows:</p> <p>On the third item, a note is produced and offered, $2,240:</p> <p>Twelve months after date, we, or either of us, promise to pay Col. J. W. Leak, or order, two thousand two hundred and forty dollars, for value received.</p> <p>Wm. C. Smith, (Seal.)</p> <p>March 6th, 1874. J. W. McGregor, (Seal.)</p> <p>INDORSEMENTS :</p> <p>Cr. by $100, November 5,1877.</p> <p>Cr. by $100, November 16, 1877.</p> <p>Cr. by $200, November 24,1883. A. B. Leak.</p> <p>Witness signed the note with W. C. Smith. W. C. Smith asked witness if witness would sign a note with him for some money; he said he had plenty of notes and accounts and stock then, if he could realize on it, but it would take some time to do it, and debts were pressing him, debts made in connection with his business there, some northern debts and some in Wilmington; he said there would not be any danger of witness getting into trouble about it; that he had plenty of notes and accounts then, amounting to $6,000 or $7,000, that would amply secure witness against loss. Witness agreed to sign the note, and went to Rockingham with W. 0. Smith and signed it there. Witness never heard of it again until 1876, when payment was demanded of him, and he gave a mortgage to the payee, J. W. Leak, to secure the debt, on a piece of land that would pay the debt. A mortgage was produced from J. W. McGregor and wife to J. W. Leak, 24th February, 1876, to secure the $2,240 note. Credits on the note, November 5th, 1877, $100; November 16th, 1877, $100, and March 26th, 1888, $200. Witness paid these amounts. J. W. Leak is dead. The land mortgaged is worth more than the debt.</p> <p>When the note was signed, W. C. Smith got the money, $1,300 or $1,400, in check on New York, the balance in cash. He said that he was going to pay the debts of the concern; that they were pressing him; it was T. J. Smith’s business. He let Cox & Bo)*' have the check. Plow it was paid out afterwards, witness does not know. Objected to by plaintiffs. Overruled. Plaintiffs excepted. But, on this item, the Court afterwards instructed the jury that there was a variance between the allegation and the proof, and they could not consider the matter of Leak’s note. Defendants excepted.</p> <p>He was out here, I think, in 1875. He told me that as soon as he got to Wadesboro he was sued on accounts that his agent made here, and that he was afraid his agent had involved him here, and that he had fixed his property before he left Texas so that they could not get anything out of him. Objected to by plaintiffs.</p> <p>As to the fifth item: This a credit of $641 on the account. Some of T. J. Smith’s property was turned oyer to witness to apply to the Leak debt; witness sold it and credited it on the account. The notes and accounts of the concern were put in the hands of witness to secure that Leak debt. T. J. Smith came out here and demanded the property. Witness refused to give them up, and told him if he would pay the debt, witness would give them up. He said he would not do it. He would not allow witness to collect them. Witness had a conversation with W. G. Smith a very short time before the money was borrowed from J. W. Leak in February or March, 1874. The day before it was borrowed he took his books and showed witness the accounts, which, he said, were ample security, and said he was obliged to raise the money.</p> <p>The 'witness W. E. Cox testified as follows: We had more or less transactions with W. C. Smith in 1874; received exchange from him and gave him exchange; referring to his books to refresh his memory, witness said the first draft for. $800 was signed by me; the next, $50, by my father; and the next, $450, by me March 4th, 1874, all in the firm’s name. The three drafts were drawn on-& Bennett, New York; during 1874, our firm was doing business with them and shipping cotton for them as commission merchants, and these drafts were drawn about this time. When W. C. Smith got the draft for $800, he had a check for $1,375.66, and wanted drafts for smaller amounts. The witness has a faint recollection that W. C. Smith said he got that check from J. W. Leak, of Rockingham. But don’t know whether the draft was there that day; his best impression is that the draft was on J. W. Leak. He has no recollection of seeing his name on it; thinks his father was present, because their rule was to consult about such matters.</p> <p>The witness, being cross-examined, said that he is a brother-in-law of defendant and son-in-law of W. O. Smith. Has taken no interest in this matter; was forced to come here by a subpoena against his will.</p> <p>Deposition of C. P. Mebane was offered and objected to by plaintiff, and ruled out, and the defendant excepted.</p> <p>J. S. Darlington, a witness for defendant, testified that for a part of the year 1870-71 he lived at New Forestville, and was superintendent of the works there. They were W. C. Smith's or Thos. J. Smith’s: the witness engaged with W. C. Smith for Thomas J. Smith.</p> <p>The business was all carried on in the name of W. C. Smith, agent. There was a large tannery, saw-mill and grist mill.</p> <p>The following special instructions asked for by the plaintiff were given :</p> <p>That there is no evidence that defendant signed the note made payable to John W. Leak and set up, as the surety of Thomas J. Smith. Defendant excepts.</p> <p>That there is a variance between the allegation in the answer in regard to the set-off of the note of John W. Leak set up in his answer, and the proof, and the jury should not allow the same. Defendant excepts.</p> <p>The presiding Judge, during the argument to the jury, stated that he would withdraw from the jury the evidence upon the third item of the bill of particulars, that pertaining to the Leak note, as not sustaining the allegations of the counter-claim. Thereupon the defendants asked to be allowed to answer the complaint in accordance with the testimony, and read an affidavit offered for a continuance at a former term, to show that plaintiffs had full notice, and would not be taken by surprise by such amendment.</p> <p>The Court declined to permit an amendment of the answer at this stage of the trial, and defendant excepted.</p> <p>The Court instructed the jury upon the third item of the bill of particulars, that there was a variance between the allegation and the proof, and that they could not consider the said third item of the bill of particulars, the matters of the Leak note, and defendants excepted.</p> <p>Plaintiffs admit that W. C. Smith was the agent of Thos. J. Smith, and that Thos. J. Smith is hound for all the authorized acts of W. C. Smith.”</p> <p>There was a verdict and judgment for the plaintiffs, and the defendant appealed to this Court.</p>

Civil action, tried upon exceptions to the report of a referee, before Gudger, Judge, at Fall Term, 1886, of Edge-combe Superior Court.

Civil action, tried before Connor, Judge, at April Civil Term, 1886, of Wake Superior Court. This action is upon a bond or promissory note under seal, made by the defendant James M. Harris, principal, and the other defendants, his sureties, to John Gatling, one of the plaintiffs, for $400, due December 15, 1881, and deposited at the plaintiff Bank as collateral security for money loaned.

Civil actioN, tried on appeal from a justice of the peace,, before Gilmer, Judge, and a jury, at February Term, 1886, of SahpsoN Superior Court. This action was brought by the plaintiff as administrator of James White, deceased, to recover the balance alleged to be due upon the single bond set forth below, which he alleges belonged to his intestate at the time of his death.

<p>MotioN to continué an injunction to the hearing, in a cause pending in the Superior Court of Durham county, heard before Clark, Judge, at Chambers, in Raleigh, on April 22d, 1886. His Honor refused the motion, and the plaintiff appealed.</p> <p>The facts appear in the opinion.</p>

MotioN to continue an injunction to the hearing, in a-civil action pending in the Superior Court of Durham county, heard before Clark, Judge, at Chambers, in Raleigh, on April 22d, 1886. His Honor refused the motion, and the plaintiffs appealed. The facts are identical with those of the preceding case.

Civil action, tried before Clark, Judge, and a jury, at September Term, 1886, of Pendes. Superior Court. There was a judgment for the plaintiffs, and the defendants appealed. The facts appear in the opinion.

<p>Trusts — Statute of Fraxids — Husband and Wife — Evidence— §590.</p> <p>1. While trusts, unless annexed as an incident to a conveyance of the legal estate, cannot be raised by parol even when founded on a valuable consideration, they may be attached by agreement to such transferred estate and will be enforced.</p> <p>2. Where an agreement is made between husband and wife, that the proceeds of a sale of the wife’s land shall be invested in. other land in the name of the wife, such agreement is within the provisions of the statute of frauds, and cannot be specifically enforced, but relief will be given the wife by declaring her to be entitled to the proceeds of her land, and perhaps to charge the land purchased with her money, with its payment.</p> <p>3. Where a parol contract for the sale of land upon which money has. been paid, is repudiated, the vendor is required to return the money, for he will not be allowed to retain both'the money and the land.</p> <p>4. Where a husband contracts with his wife to invest money received from a sale of her land, in other land, the title to which is to be taken to the wife, but instead he takes the title to himself, he must either execute his contract by conveying the land to his wife, or restore to her the money which he received from her estate.</p> <p>5. Where the answer admits the purchase of land, it is unnecessary to produce the deed, and a witness may testify to circumstances attending the transaction, that are not in the deed, although he refers collaterally to the deed.</p> <p>6. The fact of payment to a deceased person, for land purchased of him, can be proved, when neither the witness nor the estate of the deceased vendor are interested in the result of the action.</p> <p>7. The succession to personal property is governed exclusively by the law of the actual domicile of the intestate at the time of his death.</p> <p>•8. The common law is presumed to exist in other States, unless it is shown to have been changed by statute.</p>

Civil actiou, tried before Connor, Judge, at August Term, 1886, of ObaNGE Superior Court. The action was brought to August Term, 1885, to recover on an alleged contract between John Whitaker, the testator of defendant, and the feme plaintiff, that services rendered to the testator should be compensated in his last will and testament.

<p>Civil action, tried before Shepherd, Judge, at Fall Term, 1886, of G-reene Superior Court.</p> <p>The parties to this action agree upon the following as the facts material to the decision of the question of law involved in the action, and consent that judgment may be rendered thereon as on a special verdict.</p> <p>The plaintiff and Margaret A. Ormond, on the 13th of November, 1884, made application for a policy of insurance in the defendant’s company upon the life of Margaret A.. Ormond for the benefit of the plaintiff. That said application was taken by one Thomas McGee, an agent of the defendant, and when the application was taken, the plaintiff asked said agent when he would have to pay membership fee and first year’s dues, and the agent replied that it was customary to pay when the application was made, but some paid when the policy was delivered, and the plaintiff said he would pay when the policy was delivered. The agent, McGee, knew that the plaintiff was a man of high financial and social standing, and was satisfied that payment would be made when called for.</p> <p>The agent, McGee, took the application to the general agents of the defendant, Midgett & McCullen, to whom the standing of the plaintiff was well known, and informed them of the circumstance attending the making of the application ; said general agents forwarded it to the home office in Philadelphia; andón the 19th day of November, 1884, it issued the policy and forwarded the same to the general agents, who, on the 24th of November, forwarded the same by mail to the plaintiff at Hookerton. without condition or explanation, or saying anything about the payment of the membership fee and first year’s dues, inclosing therewith a receipt.</p> <p>On the afternoon of the 16th day of November, 1884, said Margaret A. Ormond was taken sick, and a medical attendant was called to her on the 19th, and on the 21st it was discovered that she had pneumonia, from which she died on the 23d, having been confined to her bed from her first sickness on the 16th; that her sickness was not of such a nature as to cause any apprehension in her own mind or the minds of the members of the family, until the 19th.</p> <p>By the only mail route from the postoffice of plaintiff and said Margaret A. Ormond, a letter mailed at said postoffice on the 16th, 17th or 18th of November, would have reached Philadelphia on the 19th, or Kinston, where the general agents reside, on the 20th. One mailed on the 19th or 20th would have reached Philadelphia on the 21st, or Kinston on the 22d; one mailed on the 20th or 21st, would have reached Philadelphia on the 25th, there being a tri-weekly mail from her postoffice to Goldsboro, N. C., on Tuesday, Thursday and Saturday. No notice was given the defendants of the sickness of Margaret A. Ormond until the 27th of November. The plaintiff having received the policy on the 25th day of November through the mail as stated, took the same on the 27th to the general agents, informed them of the sickness and death and the circumstances attending it, and asked them if the policy was all right; and they informed him that it was, and he paid them the membership fee and first year’s dues, and they countersigned the receipt for the fee and dues,, and at the suggestion of said agents, sent forward notice of death. Afterwards during the same day, one of the agents saw the plaintiff, and told him he was not sure that the policy was good. On the 8th of December, 1884, in consequence of a notice from the general agents, the plaintiff went to their office, and they informed him that they had been notified by the defendants to return to him the money, stating at the same time that they did not think it was necessary, but the plaintiff could take the money, and if his claim was established he could return the money. Upon this assurance, without intending to waive any right, he took the money.</p> <p>The general agents, Midgett & McCullen, were managers for the States of North Carolina and South Carolina, and had authority to solicit and forward applications for insurance, receive and receipt for membership fees and first annual dues, by countersigning receipts signed by the president and treasurer, to deliver policies, and appoint sub-agents.</p> <p>This agreement of facts is made, reserving the question for the consideration of the Court, as to whether any parol evidence is admissible to contradict the statement in the policy that the membership fee and first year’s dues were paid, as contended by plaintiff’s counsel.</p> <p>His Honor held that plaintiff was not entitled to recover, and that defendant go without delay and recover his costs. From which ruling and judgment the plaintiff appealed.</p>

. Civil ACTION, tried before Shepherd, Judge, and a jury, at Spring Term, 1885, of Grakville Superior Court.

Civil ACTION, tried before Oilmer, Judge, at November Term, 1886, of CUMBERLAND Superior Court. There was a judgment for the defendant, and the plaintiff appealed. The facts fully appear in the opinion.

This was a civil actioN, tried before Gudger, Judge, at Fall Term, 1886, of Northampton Superior Court. The allegations of the complaint are in substance as follows: In February, 1875, E. J. Drewitt died intestate in the county of Northampton, and on the 3d day of that month, W. T. Stephenson, now deceased, was appointed and duly qualified as his administrator.

Civil ACTION, tried before Shipp, Judge, at Spring Term, 1886, of MadisoN Superior Court. The cause of action alleged in the complaint, is a judgment of the Circuit Court of the county of Knox, in the State of Tennessee.

<p>Devastavit — Cause of Action- — -Statute of Limitation.</p> <p>1. When an action is brought against an executor or administrator for a devastavit, and a judgment is obtained against him, the cause of action accrues at the time of the qualification, and the law" in force at the time governs, but when the action is brought after the death of thejexecutor, the cause of action accrues as against his real and personal representative, when such representative qualifies and gives notice to creditors.</p> <p>2. A creditor may sue the real representative of a deceased debtor to subject the descended lands to the payment of his debt, where there is danger of loss from delay, without waiting for the settlement of the personal estate by the administrator.</p> <p>■3. Where it is sought to subject the descended lands in the hands of the heir to the payment of the ancestor’s debts, he has all the defences since the Act of 1846, which changed the procedure, that he would have had to a sai. fa. before that Act, with the qualification that when the action was brought against the heir within seven years after the qualification of the personal representative, on a judgment already obtained against the personal representative, the heir cannot plead _ that the demand on which the judgment was rendered was barred, unless he can show that the judgment was obtained by fraud or collusion.</p> <p>4. Under the jrrovisions of the Act of 1716, if the debt be due at the death of the debtor, an action must be brought within seven years from the death, otherwise both the heir and the executor will be discharged, and if the action arose after his death, the action must be brought within seven years after the cause of action arose, or the Act will be a bar, provided the personal representative has paid over the assets.</p> <p>6. By the provisions of The Gode, §153, sub-sec. 2, an action is absolutely barred against both the personal representative and the heir, unless it is brought within seven years after the qualification of the personal representative and the advertisement for creditors, and nothing will defeat its operation, except the disabilities mentioned in The Code, or such fraud or other matter of equitable nature, as would make it against conscience to rely on the statute.</p> <p>6. Where an action was brought in 1877, against the administrator of a deceased executrix, charging a devastavit, which pended until 1885, when a judgment was rendered in favor of the iDlaintiff, who then at once brought an action to subject the lands in hands of the heir to the payment of the judgment; It'ivas held, that the action was barred.</p>

Civil actiox, tried before Clark, Judge, at February Term, 1886, of Guilford Superior Court.

<p>Civil actioN, tried before Shepherd, Judge, and a jury, at Spring Term, 1886, of Northampton Superior Court.</p> <p>There was a judgment for the plaintiff, and the defendants appealed.</p> <p>The facts fully appear in the opinion.</p>

<p>Pleadings— Will.</p> <p>1. When the pleadings are so confused and vague, as to leave it in doubt what the parties are contending over, this Court will not take cognizance of the cause on appeal.</p> <p>2. Courts of equity will not entertain a suit for the construction of a devise, but will leave the devisee to assert his right at law, in an action to recover the land.</p>

PROCEEDING to procession land, heard on appeal from the •clerk, by Connor, Judge, at Pall Term, 1885, of Bertie Superior Court. The appellant brought this proceeding on the 30th day of October, 1884, to have the tract of land described in the record processioned, as allowed by the statute, (The Code, §§ 1926,1927,1928). The processioner and freeholders made report of their action, to which the appellee filed numerous exceptions.

This was a civil ACTION, tried before Philips, Judge, at Spring Term, 1886, of WilsoN Superior Court.

This was an action for the recovery of land, tried before Philips, Judge, at Spring Term, 1886, of the Superior Court •of the county of MaetiN.

<p>Irregular Judgment — Motion in the Cause — Judicial Sale.</p> <p>1. It is well settled, that a motion in the cause, and not a new action, is the proper remedy to set aside an irregular judgment, whether the irregularity appears on the face of the record or not, even although the action is at an end. It is otherwise when it is sought to attack a judgment for fraud, which must be done by a new action, if the action in which the judgment sought to be attacked is at an end.</p> <p>2. Where an adult was served with process in a cause, but filed no answer, and made no objection to any of the orders and decrees until three and a half years after they were passed, and then showed no injury to have resulted to her from the decrees; It ivas held, that they would not be set aside at her instance.</p> <p>8. A judgment against an infant who has been served with process is not void, but at most is only irregular and voidable.</p> <p>4. The Court will not set aside an irregular judgment against an infant as of course, and it will not do so, when it appears from the record or otherwise, that the infant suffered no substantial wrong, and the rights of third parties, without notice, have intervened.</p>

ExcbptioNS to the report of assessors appointed to allot the homestead, heard before Connor, Judge, at Fall Term, 1886, of Durham Superior Court. On execution issued upon a judgment recovered by the plaintiff, the sheriff caused the homestead exemption of the defendant to be valued and laid off to him as prescribed by law, and return thereof made to the clerk of the Superior Court with said execution.

Civil ACTION, tried before Boykin, Judge, and a jury, at January Term, 1886, of RobesoN Superior Court. There was a judgment for the defendants, and the plaintiffs appealed. The facts fully appear in the opinion.

Special proceeding, beard upon appeal from the clerk of Durham Superior Court, by Gilmer, Judge, at Chambers, on the 25th of January, 1887. There was a judgment for the plaintiff, and the defendant appealed. The facts are fully stated in the opinion.

Special Proceeding, hoard upon issues joined before the clerk, by Ciarlo, Judge, at Fall Term, 1886, of Carteret Superior Court. It appears that Benjamin L. Perry died on the 25th day of July, 1869, in the county of Carteret, leaving a last will, which was duly proven on the 7th of July, 1870, and on the 26th of the same month, the defendant B. L. Perry and John M. Perry (the latter now deceased,) qualified as executors thereof.

Civil actioN, tried before Shepherd, Judge, at Spring Term, 1886, of Halifax Superior Court.

Civil ACTION, tried before Gilmer, Judge, and a jury, at November Term, 1885, of GbaNVIlle Superior Court. There was a judgment on the verdict for the plaintiff, and the defendant appealed. The facts fully appear in the opinion.

Civil ACTION, tried before Avery, Judge, and a jury, at February Civil Term, 1884, of Wake Superior Court. There was a judgment for the plaintiffs, and the defendants appealed. The facts fully appear in the opinion.

Civil action, heard before Clark, Judge, upon exceptions to the report of a referee, at May Term, 1886, of Chatham Superior Court. This case, commenced in 1872, and after repeated references and reports, and one appeal to this Court, (78 N. C., 582,1 has been protracted, and is now before us for final adjudication, very much narrowed in its scope.

Civil ACTION, beard upon a case agreed, by Shepherd, Judge, at Spring Term, 1886, of Halifax Superior Court. The plaintiff, with the certificate of his election to the office of Register of Deeds in the county of Halifax from the County Canvassing Board, presented himself before the defendants, the county commissioners, on the first Monday in December, 1.882, and tendering the bond required by law, demanded to be inducted into office, on taking the prescribed oath.

<p>These were civil ACTIONS, heard upon exceptions to the report of a referee by Avery, Judge, at Spring Term, 1886, of Gastox Superior Court.</p> <p>The Lawrence Manufacturing Company, created by a special act of the General Assembly, private acts, 1879, ch. 63, a defendant with others in one action, and the Woodlawn Manufacturing Company, formed under the general law contained in Battle’s Revisal, ch. 26, sued, with other defendants, in another action, which actions have been consolidated and prosecuted as one, became involved and embarrassed in the prosecution of their business operations, to procure relief from which, the latter company on November 16th, 1879, obtained from the defendant J. W. Pries a loan of $10,000, for which it gave its note, and to secure the same, executed a mortgage deed conveying its corporate property and franchises.</p> <p>The two companies, located near each other in the county of Gaston, and engaged in the same general business of manufacturing, were under the management of the same officers and agencies, and most of the capital stock in each was held by the same owners.</p> <p>In January, 1880, the indebtedness of the borrowing company was assumed by its associate, which substituted its own note therefor, and made to the creditor a similar mortgage •of its own property to assure its payment. Thereupon the first note and mortgage were cancelled.</p> <p>On March 30th, 1882, the debt was re-assumed by the Woodlawn Manufacturing Company, which, after making a payment of $2,500 on the debt, gave its note to said J. W. Pries for $7,500 and executed a second mortgage to secure the residue, upon its lands, mill, machinery and all waters and water privileges used in connection therewith; whereupon the note of the second mortgagor company was also surrendered, and its mortgage in like manner cancelled for its exoneration. This mortgage was proved the next day and admitted to registration in Gaston county on the 1st day of April, 1882.</p> <p>Under a resolution of the directors and with the approval of the stockholders, on the day of registration of the last, mortgage to Fries, the Lawrence Manufacturing Company executed a deed conveying all its land, mill and machinery thereon, rights, privileges and franchises, to the Fidelity Insurance Trust and Safe Deposit Company, a corporation formed under the laws of Pennsylvania, and located in the city of Philadelphia, in trust to secure forty-five coupon bonds, each of the denomination of $1,000, bearing interest, at the rate of seven per cent, per annum, which the company caused to be issued and placed in the hands of the defendant-Hall, he guaranteeing that they would bring upon a sale a sum not less than two thirds of their face value.</p> <p>Unable to dispose of them in the market on these terms, Hall, in pursuance of his contract, took the bonds himself,, and paid over to the company the stipulated sum of $30,-000, from which was deducted a sum charged by the agent, for his services in obtaining the loan. On July 15th following, both corporations becoming utterly insolvent and incapable of carrying on their business, the Lawrence Manufacturing Company made an assignment of all its property, the land, mill and machinery thereon,, with all its rights, and privileges, to John M. Williamson, of Philadelphia, in trust to secure such of its notes, bills and other business-paper on which there were endorsers or guarantors for its accommodation, as well as certain debts specifically mentioned ; and secondly, to secure all other of its debts not mentioned.</p> <p>On the same day, the Woodlawn Manufacturing Company made a similar assignment of its property to the same trustee, to secure such of its debts as had accommodation endorsers or guarantors, and the same creditors whose claims are preferred in the deed of the other corporation. Tírese deeds were made by the same official agencies and in terms identical in declaring the trusts, mutatis mutandis.</p> <p>The actions were instituted by unpreferred creditors against the separate companies, for an adjustment of their liabilities, and the appropriation of the property of each thereto, and, as they were under the same management, and their operations and interests intermixed, they have by consent been considered, prosecuted and defended as a single proceeding.</p> <p>A reference was made to T. H. Cobb to ascertain the outstanding indebtedness of both companies, the resources applicable thereto, and the manner in which they should in law be appropriated to the defendant’s debts. He made such inquiry, and reported the full and voluminous evidence of the demands against each; and his findings of fact and conclusions of law as to priorities in the distribution of the funds, to. which exceptions were entered by the contestant parties, and from the rulings of the Judge thereon appeals are taken to this Court.</p>

Civil ACTION, tried before Shepherd, Judge, and a jury, at Fall Term, 1885, of Cubjrituck Superior Court. This proceeding, instituted in the Superior Court of Cur-rituck county, before the clerk, on the 6th day of September, 1883, upon an allegation of a tenancy in common among the parties, is to have partition of a tract of land, described in the petition as containing two hundred acres more or less, and lying between the waters of Beasley’s Bay and the Atlantic Ocean.

This was a CONTROVERSY without ACTION, submitted to Shipp, Judge, at Fall Term, 1886, of Hertford Superior -Court.

<p>ApplicatioN pok a public road, heard on. appeal from the County Commissioners, before Connor, Judge, and a jury, at August Term, 1886, of ■ Caswell Superior Court.</p> <p>This was an application to the county commissioners of the county of Caswell, to have laid out and established a public road in that county. Upon appeal to the Superior Court, the appellants prepared the following issue to be submitted to the jury: “Is a public road leading from Sid-dle’s Store, on the Greensboro and Yancey ville road, to Lovelace’s Shop, on the Greensboro and Danville road, necessary?” To this the Court added the words, ‘‘ for the public.” The appellants objected and excepted.</p> <p>There was evidence tending to prove that the proposed road was necessary, and also the contrary. The evidence on both sides showed, that for a distance of six to eight miles there were two roads from the road at Siddle’s Store to the road leading by Blackwell’s Store, one being about three miles above and one three miles below said store, and thatbetween these two roads there were two others, one by J. W. Cobb’s and the ' other by Brackin and Badgett’s, which the public used until after this controversy arose, when Cobb and Badgett, two or the petitioners, had for a short time prevented their use. It was also in evidence, that four roads used by the public, running east and west to Yancey ville, were in the same distance. There was no evidence that the roads by Cobb’s and Badgett’s and Brackin’s had ever been worked as public roads, but they had been used for a long period without objection until this suit. A private roevd was used along the whole of the proposed route except from Blackwell to Mrs. Blackwell’s, about two miles. This had only been used by her permission.</p> <p>His Honor, in his charge to the jury, stated that to constitute a public road there must be a user for more than twenty years adversely to the owner of the land, and explained to the jury the law under which parties are entitled to have roads opened.</p> <p>He stated that the jury could consider the evidence in regard to the road by Cobb’s and the one by Badgett and Brackin’s, with all the evidence in the case, and decide the question submitted to them. The testimony consisted largely of examination of witnesses in regard to a map used by the counsel, but not furnished to the Court. It was agreed by the counsel, that the Judge need not take any notes of the evidence, and no objection was made to any portion of the charge until after the verdict was rendered, when the plaintiffs excepted, for that upon the evidence the Court should have told the jury that the cross-roads were private ways, and not have left the question to them, as to the character of the cross-roads.</p> <p>At the conclusion of the trial it was agreed that the clerk might take the verdict of the jury, and the Court adjourned at 7 P. M., to 91 o'clock, A. M., next day. The jury coming to a conclusion at 11J P. M., and the clerk having gone home by permission, they placed their verdict in an envelope and sealed the same, wrote on the back of the envelope, “ verdict of the jury,” and handed it to the sheriff of the county, who had the jury in charge, by instructions from the Judge. The sheriff placed said envelope in his safe and locked the same. The jury then separated.</p> <p>On the meeting of the Court, the Judge, against the protests of the plaintiffs, had the jury called into the box and the foreman, in the presence of the jury, opened the envelope. The verdict was thereupon returned and recorded in open Court, which was as follows :</p> <p>“ Is a public road leading from a point near Siddle’s Store, on the Greensboro and Yanceyville road, to Lovelace’s Shop, on the Greensboro and Danville road, a necessitj'- for the public ?</p> <p>Answer — No.”</p> <p>Counsel for the parties being present, each juror stated that the same was his verdict.</p> <p>At the assembling of the Court, the sheriff handed the envelope to the clerk. There was no suggestion that either the verdict or the jury had been tampered with.</p> <p>The plaintiffs' counsel objected to the verdict being received or recorded, or the Court finding any facts in connection therewith.</p> <p>His Honor proceeded to render judgment, from which, plaintiffs appealed, and assigned as error the matters herein before set forth.</p>

Civil ACTION, lieard by Montgomery, Judge, on a. case agreed, at Fall Term, 1886, of Burke Superior Court. This action was brought to foreclose a mortgage of real property only, made to secure certain debts therein specified. The mortgage was executed by Archibald Kincaid on the 17th of June, 1873, and the forfeiture therein provided for, happened on the 17th of December of the same year.

Civil ACTION, tried before Montgomery, Judge, upon exceptions to the report of a referee, at March Term, 1886, of Wilkes Superior Court. This suit was begun by the issue of a summons in February, 1879, and has for its object the enforcement of payment of an alleged residue of the debt contracted in the purchase of a tract of land, the title to which was retained by the vendors as a security therefor.

<p>Civil action, heard before Clark, Judge, on exceptions to the report of a referee, at February Term, 1886, of Guil-ford Superior Court.</p> <p>At the December Term, 1880, of the Superior Court of Guilford county, this action was referred to James W. Reid, Esq., to state an account between the parties and report the evidence, his findings of facts and conclusions of law. The referee filed his report, to which exceptions were filed by the plaintiff and by each of the defendants. At Fall Term, 1883, the case was heard before MacRae, Judge, upon the exceptions of the plaintiff and the defendant Glenn, the defendant Call having withdrawn his exceptions and moved for a confirmation of the report of the referee. His Honor gave judgment sustaining the 9th and 10th exceptions of the plaintiff, and the 2d and 3d exceptions of the defendant Glenn, and also the 5th exception as to the measure of damages, and, among other things, adjudged that the cause be re-referred to James W. Reid, Esq., to reform his report, and he was directed, in estimating the damages to the said Jones and Glenn, to consider the loss of profit on the manufacture and sale of machines, on the basis of a continued manufacture and sale, at the time of the interference as set out in finding 17, and also the difference between the market value of said patents at the time of said interference, and at the time of making his report, if he shall find that the difference in value, if any, was caused by said interference.</p> <p>From this order the defendant Call appealed to the Supreme Court. As the order was interlocutory, and the exceptions to the rulings of the Court embraced in it could be considered after the coming in of the corrected report, if necessary, the appeal was dismissed as premature; 89 N. C., 188.</p> <p>The referee filed his report to the Fall Term, 1885, as follows:</p> <p>“ I. ■ That in addition to the seventeenth finding of my said former report, I find that by reason of the doings and unlawful interference of the defendant Call, in interfering with and stopping the manufacture of the machines, the sales thereof were withdrawn from market, and other patents and contrivances for the manufacture of tobacco supplanted the Jones patents, and greatly depreciated their value.</p> <p>II. That the market value of the said patents at the time of the said interference, to-wit: October 11th, 1878, was forty thousand dollars, and the market value thereof at the time of making my former report, bad depreciated two thirds, leaving the said patents worth the sum of thirteen thousand three hundred and thirty-three and 33J-100 dollars.</p> <p>III. That the annual profit derived from the manufacture and sale of machines at the time of the interference on October 11th, 1878, was six thousand dollars.</p> <p>As conclusions of law, the referee ruled :</p> <p>“ x. That under finding 17 of my former report and finding “I,” foregoing, the contracts between the plaintiff and defendants’ intestate, R. W. Glenn, and defendant Call, were rescinded by the said action of defendant Call, and the said plaintiff and defendant Glenn are entitled to be put in statu quo.</p> <p>“ y. That the plaintiff and defendant Glenn are entitled to the sum of six thousand dollars per annum, as damages, from October 11th, 1878, to March 5th, 1883, the annual profit derived from the manufacture and sale of machines, with interest thereon from March 5th, 1883.</p> <p>‘‘ z. That the plaintiff and defendant Glenn are entitled to. twenty-six thousand six hundred and sixty-six and 66|-100 dollars, as damages, for difference between market value of the said patents at the time of said interference, October 11th, 1878, and the time of making the former report, on March 5th, 1883.”</p> <p>Accompanying the report is the following account, based upon the former report and this amended report:</p> <p>“JOHN L. JONES and DEPENDANT GLENN,</p> <p>In Account with MANFRED CALL:</p> <p>1878.</p> <p>Oct. 11th. To balance due Manfred Call this day as per former report. $11,072 52</p> <p>To interest on same to March 5th, 1883, 4 y’rs, 4 mos. and 24 days.. 2,923 14</p> <p>1879.</p> <p>May 22d. To amount paid for taxes. 29 25</p> <p>To interest to March 5, 1883, 3 y’rs, 9 months and 13 days. 6 63</p> <p>May 22d. To repairs on fence. 14 16</p> <p>To interest to March 5,1883. 3 21</p> <p>Nov. 5th. To amount paid for insurance 200 00</p> <p>To interest on same to March 5th, 1883 .. 39 80</p> <p>$14,288 71</p> <p>1883. CREDIT.</p> <p>March 5th. By difference in market value of the said patents at the time of said interference and this date due to the plaintiff Jones and defendant Glenn, as damages_ $26,666 661-</p> <p>March 5th. By annual loss of profit on manufacture and sale of machines from Oct. 11, 1878, to date, 4 years, 4 months and 24 days, at $6,000.00 per annum.-. 26,399 84</p> <p>By Balance. 38,777 79$</p> <p>$53,066 50$ $53,066 50$</p> <p>1883. -</p> <p>March 5th. Balance due plaintiff, J. L. Jones, . and defendant Glenn, subject to a note of $5,000.00 due Bank of Greensboro, with interest as specified therein from Sept. 16th, 1878, till paid, with interest thereon from this date.. $38,777 79$</p> <p>August 31st, 1885.”</p> <p>The defendant Call filed exceptions to each of the findings of fact, I, II and III, in the second report, as not warranted by the facts, and also to each of the referee’s conclusions of law, x, y and 2, as erroneous in law, and not supported by the facts, and also to the account filed, as based upon errone•ous findings of facts and conclusions of law.</p> <p>The defendant Call also filed as exceptions to the whole report, as amended, the exceptions filed to the original report, and which had been withdrawn by him when his motion was made for the confirmation of that report.</p> <p>The action was tried before Clark, Judge, at the February Term, 1886, upon the report of the referee and the exceptions of the defendant Call, and all the exceptions filed to the original report of the referee were overruled, “ for that the matter thereof had been adjudicated by Judge MacRae, and the exceptions had been heretofore offered by the defendant Call and withdrawn,” and all the exceptions, including questions of fact and conclusions of law, arising on the amended report, were overruled, and judgment rendered against the defendant Call and in favor of the plaintiff Jones, and the defendant Glenn, among other things, for the .sum of $30,827.59.</p> <p>From this judgment the defendant Call appealed, assigning as errors:</p> <p>1st. The exceptions taken to the rulings and judgment of the Court at Fall Term, 1883.</p> <p>2d. The rulings and judgment of the Court at February Term, 1886; first, in refusing to consider the exceptions filed to the first report of the referee; second, in overruling the •exceptions to the findings of fact by the referee in his second report; third, in refusing to consider the exceptions to the referee’s conclusions of law, x, y and z, and the account as stated, because they were involved in the former adjudication made by Judge MacRae.</p> <p>3d. In confirming the report of the referee and granting the judgment thereon in favor of plaintiff Jones and defendant Glenn.</p>

Civil ACTION, tried before Clark, Judge, at January Term, 1886, of Granville Superior Court. Both parties appealed from the judgment in the Court-below, but only one transcript of the record, which contained the case stated on appeal of both appellants, was sent-to this Court.

This action is pending in the Superior Court of Beaufort county, the object of it being the foreclosure of a mortgage executed by the defendants, Sparrow and wife, and the sale of the property embraced in said mortgage to pay the debt secured thereby.

<p>Juror— Challenge — Evidence—Fraud.</p> <p>1. 'Wherever the statute directs the County Commissioners not to include the names of a class of persons if drawn to serve on the jury in the panel, as in case of those having suits pending and at issue in the Superior Courts, it is a fundamental objection to the juror, whenever it is made to appear, and is a cause of challenge, although the County Commissioners may have allowed his name to go upon the venire.</p> <p>3. Qucere, whether a juror who has an indictment pending and at issue against him in the Superior Court, is disqualified from serving on the jury by the statute which prohibits those having a suit so pending and at issue from serving.</p> <p>•3. In order to disqualify a juror from serving under this statute, the suit must be at issue, and so where an indictment was pending against a juror, to which he had never pleaded; It was held, that he was not disqualified under this statute, even if it applies to indictments.</p> <p>4. In an action to attack a deed in trust to secure creditors for fraud, evidence of the amount of the trust property received by the trustee is immaterial and incompetent.</p> <p>•5. What constitutes fraud is a question of law; what is sufficient evidence of the facts required to establish it, is for the jury; and so if the fraud appears on the face of the instrument, it will be declared by the Court without the aid of the jury; but when dependent upon matters dehors the deed, it must be found by the jury.</p> <p>■6. Where in an action to attack a deed for fraud, prima faeie evidence is given of the bonafides of the debt, the burden of proof is on the party attacking the deed to show the fraud, and evidence of such debts may be gathered from the plaintiff’s own evidence.</p> <p>7. If the purpose of a conveyance be to hinder and delay creditors, it is fraudulent and void, although the debts secured by it are bona fide.</p>

Civil actioN, tried before Shipp, Judge, at Pall Term, 1886, of Hertford Superior Court. It appears that James A. Worrell died, leaving a last will and testament, which was duly proved, of which the following is a copy: “ Jtem 1. I leave unto my wife Harriet, enough land, including houses, for a one-horse crop.

<p>Civil action, heard before Shipp, Judge, at Chambers, in Charlotte, on the 7th day of August, 1886.</p> <p>Under an attachment issued in an action prosecuted by the present plaintiff and Julius A. Gray, in the Superior Court of Mecklenburg county, against William J. Best, and levied on seventy-five hundred shares, owned and held by him in the capital stock of the defendant company, the same was-sold to the plaintiff for the sum of twenty cents per share,, and the sheriff gave him a certificate therefor. This certificate, as evidence of the sale and the plaintiff's title to the-stock, was deposited with the proper officers of the corporation, and a demand made for its transfer to the purchaser. This was refused, and the present action is for an order compelling the company to make the transfer of the stock on its books from the said Best to the plaintiff, and to issue a certificate of said shares to him as the owner thereof.</p> <p>The answer admits the plaintiff’s allegations, and by way of defence for the protection of the company, alleges, upon information and belief of its president, that before judgment-was recovered in the action mentioned against said Best, he had assigned his stock to the Boston Construction Company, a corporation organized under the laws of Massachusetts. The grounds for this belief are, that one W. S. Denny, professing to be its treasurer in 1882, so informed the president, of the defendant company; and that soon afterwards, the said Denny forwarded a paper in form, and purporting to-be a copy of the assignment, which paper has been lost, and after diligent search cannot be found.</p> <p>The defendant insists that this claimant of the property ■should be brought before the Court, so that the ruling upon the question of the conflicting claims may be conclusive and binding upon both parties, and ensure protection to the defendant.</p> <p>The cause was heard, we suppose by consent as no objection was made, before the Judge at Chambers, upon the case as made in the pleadings, and he finds as facts, besides the allegation in the complaint admitted in the answer, as follows :</p> <p>I. That though the defendant alleges in its answer, that there was an assignment of said stock prior to the judgment, there was no evidence of any assignment whatever, either prior to the suing out of the attachment and its levy upon the same, or at any time.</p> <p>II. There was no evidence of the existence of such corporation as the Boston Construction Company, or of any transfer of the stock of Best to any one; nor of the existence of such a man as Denny, said to be its treasurer; nor of any written transfer or copy of such by said Best, other than appears in the answer.</p> <p>III. That as matter of law, the answer, in not averring the assignment to have been made before the levy of the attachment, fails to raise any material issue of fact requiring the intervention of a jury. Thereupon, it was considered and adjudged by the Court, that the plaintiff is entitled to the relief demanded, and the Court doth command and enjoin upon the defendant corporation, that it shall forthwith transfer to the plaintiff, upon the stock-book of the company, the seventy-five hundred shares of stock standing on the books in the name of Wm. J. Best, and forthwith to make, execute and deliver in proper form to said John L. Morehead a certificate of stock for the said seventy-five hundred shares of stock.</p> <p>From this judgment the defendant appealed. •</p>

Civil action, tried before Avery, Judge, at August Term, 1886, of BuNCOMBK Superior Court. The plaintiffs, except Harry Marrigalt, are the legatees, devisees, and heirs at law of Joshua Ward, deceased, and brought this action only to recover the possession of the land described in the complaint. The principal defendant, Charles T. Lowndes, in his answer, denied the material allegations of the complaint, except that the plaintiffs were such heirs and devisees.

Civil action, tried before BoyJcin, Judge, and a jury, at January Term, 1887, of Rockingham Superior Court. The defendant, a municipal corporation, caused to be excavated within its limits a deep and wide pit between W est Market street and the east front of the town hall and market-house, which pit was not completed on the 24th of October, 1884.

MotioN to attach the plaintiffs for contempt, heard by Avery, Judge, at Spring Term, 1886, of Union Superior Court. Ill the month of August, 1882, the plaintiffs sued out a summons against the defendants, in an action to recover a tract of land of one hundred acres, whereon was a flour and corn mill, in possession of and operated by the defendants.

<p>MotioN to amend, by making new parties, heard before Avery, Judge, at Spring Term, 1886, of Union Superior Court.</p> <p>The present appeal is from another interlocutory order, for amending the pleadings by introducing one Dr. ICron as an associate plaintiff in the action, the record and the facts being the same, except in matters directly pertinent to the appeal, as in the appeal from the refusal of the Court to adjudge him and others in contempt.</p> <p>The amendment became necessary because there was an outstanding term, of which two months were unexpired when the suit was begun, in the added plaintiff, a fact which seems to have been overlooked at the time, and thus the right of possession was not then in the plaintiff whose lessee the said Dr. ICron had become.</p> <p>The motion to amend was made at Fall Term, 1884, and was acted on and allowed after the removal of the cause to the Superior Court of Union, on the terms of the payment by the plaintiffs of all the costs incurred up to and inclusive of the term when the motion was made, and their giving-bond with sureties in the sum of two hundred dollars for the prosecution of the suit.</p> <p>Prom this ruling the defendants appeal.</p>

<p>Evidence — Agency—Infants—Torts.</p> <p>1. Where a preliminary question, of fact arises, upon which the admissibility of evidence depends, the finding' of the Judge cannot be reviewed on appeal, if there be any evidence to warrant it.</p> <p>2. Before the acts and declarations of an alleged agent made and done in the absence of the defendant, the alleged principal, can be received in evidence, the trial Judge must find as a fact, that prima facie evidence of the agency has been offered, and his ruling upon this question of fact is beyond the reviewing power of the appellate Court.</p> <p>3. An infant is liable both civilly and criminally for his torts, and in an action for damages, it is immaterial that the tort was committed by the direction of one having authority over the infant.</p> <p>4. While infants are incapable of making a contract with an agent either express or implied, so as to bind them for his torts committed in pursuance of the agency; it seems, that an infant is liable for torts committed by his agent in the necessary prosecution of the business of the agency, under the maxim, qui facit per alium, fctcit per se.</p>

Civil ACTION, tried before Graves, Judge, and a jury, at Spring Term, 1886, of Watauga. Superior Court.

Civil actioN, heard before Shipp, Judge, and a jury, at Fall Term, 1886, of Currituck Superior Court. There was a verdict and judgment for the plaintiff, and the defendant appealed. The facts appear in the opinion.

<p>Appeal — Assignment of Errors.</p> <p>Where no errors are assigned, and none appear upon the face of tile record, the judgment will be affirmed.</p>

<p>Corporation — Evidence.</p> <p>1. Before the records and books of a corporation can be received in evidence for any purpose, it must be admitted or proved, that the entries were made by an authorized servant or agent of the corporation.</p> <p>2. The records and books of a corporation are at the least prima facie evidence of the organization and existence of the corporation.</p> <p>3. Where the stock-book of a corporation contained a list of the stockholders, the number of shares of stock owned by each, the sum of money paid by each, and the balance due, such book is evidence against a stockholder in an action to recover the unpaid balance of his subscription, to show that he was a stockholder, and the condition of his stock account, but such evidence may be rebutted.</p>

<p>Civil action, tried, before Boykin, Judge, at November Term, 1886, of Iredell Superior Court.</p> <p>It appears that on the 16th day of November, 1858, Benjamin Turner was appointed to be the guardian of his infant daughter, M. D. Turner, and executed his bond as such guardian in the sum of $3,200, with J. R. B. Adams and Ii. Nichols as sureties thereto ; and on the 19th day of May, 1863, he executed his second bond as such guardian, in the sum of $10,000, with Henry Turner and A. P. Sharpe as sureties thereto.</p> <p>Afterwards, on the 21st of August, 1866, the 'guardian above mentioned was removed by order of Court, and on the same day J. M. Turner was appointed such guardian in his stead, and gave his bond as such, in the sum of $3,500, with Henry Turner and Martin Gaither as sureties thereto.</p> <p>Afterwards, on the 23d dajrof October, 1871, Benjamin, the first above named guardian, paid to his successor guardian above named, for his said ward, $1,656.30, and never paid him any other sum of monej'' or other thing on her account.</p> <p>The ward, M. D. Turner, intermarried with Harry Burke on the 4th of March, 1875, and she attained her majority on the 7th of March, 1877.</p> <p>She and her husband brought an action on the 27th of October, 1877, against her second and last named guardian and the sureties upon his guardian bond, alleging breaches of the conditions thereof, and at the August Term, 1884, of the Superior Court of the county of Iredell, she obtained a judgment in that action for $3,500, with interest from the lltli day of August, 1884, and for $163.00 costs. Of this judgment, the sheriff collected from the guardian J. M. Turner, $200.00, and from the surety Martin Gaither, $100.00,. January 7th, 1885. In August, 1883, Henry Turner paid the said ward $1,200.00, which sum was paid before the judgment mentioned was obtained, with the understanding that it should be credited on it when obtained. On the last mentioned day, the said ward and her husband assigned this judgment to J. Chap. Turner; and Henry Turner, surety, having died on the 17th day of May, 1888, his administrators paid the balance of it.</p> <p>It appears that the second guardian became and was insolvent on and ever after the 4th day of June, 1881, and the sureties, Martin Gaither and Humphrey Nichols, became and were insolvent after the judgment mentioned was obtained; and Benjamin Turner, the first guardian, is also insolvent.</p> <p>The first guardian, Benjamin Turner, did not account sufficiently and fully with his successor guardian, J. M. Turner, in respect to his ward’s property in his hands. The ward and her husband, on the 26th of January, 1885, brought this action in the Court above named, against the first named guardian and the sureties to his guardian bond, given on the 16th of November, 1858, alleging breaches of the conditions thereof, in that he had not accounted to the second guardian as he ought to have done, and had property and effects of the ward, &c., and obtained judgment at May Term, 1886, of the Court.</p> <p>The second guardian, J. M. Turner, suing as such guardian. in the name of the State on his relation, brought this action in the same Court, on the 25th day of February, 1880, against the former guardian, Benjamin Turner, and the sureties to both his bonds as guardian first above mentioned, alleging as his cause of action, breaches of the conditions of those bonds, in that the said former guardian had not accounted with him in respect to the property, money and effects of his ward as he ought to have done, and he demanded judgment for the amount of the bonds respectively, for an account of the guardianship, &c., &c.</p> <p>• Pending this action, the relator therein, the said second guardian, J. M. Turner, died intestate on the 17th day of March, 1885, and J. J. Clendenin was appointed administrator of his estate.</p> <p>Afterwards, at the February Term, 1886, of said Court, the last named administrator was made party plaintiff in this action instead and in place of his intestate, and filed his complaint therein, adopting the complaint of his intestate, alleging further, that the said ward and her husband had since the bringing of this action, recovered the judgment first above mentioned against his intestate for moneys and effects received by the defendant Benjamin Turner, while he was guardian for his ward, &c.; and he further demanded judgment for the amount of the judgment so obtained against his intestate, &c.</p> <p>To this supplemental complaint, the defendant Sharpe, a surety, demurred, assigning as grounds of demurrer, first, that “the plaintiff as administrator of the deceased guardian, cannot maintain an action on the bond of the former guardian for a fund due his ward, but that the action should be brought by the ward, if she is now of age, or in her name by the second guardian, if she is still a minor, because the administrator cannot maintain an action for the fund which liis intestate ought to have collected.”</p> <p>Subsequently the Court made this order: “ This cause coming on to be heard at this May Term, 1886, of Iredell Superior Court, before his Honor, MacRae, Judge, upon the complaint and demurrer filed by A. P. Sharpe, and being-heard upon the said pleadings; it is adjudged by the Court, that the defendant’s first ground of demurrer, as stated in the said demurrer on file, be sustained; it is further adjudged, that the defendants recover of the plaintiff all the costs incurred in this suit, up to and including this term of the Court, to be taxed by the clerk of this Court; plaintiff allowed to amend his complaint, and to make new parties within thirty days; defendant allowed till next term to answer.”</p> <p>Thereupon at the same term of the Court, Martin Gaither, surety above named, and W. W. Turner, and J. M. Turner, Jr., administrator of Henry Turner, deceased, who was also surety of the second guardian, deceased, were allowed to become parties plaintiff with the said J. J. Clendenin, administrator, and they then filed a new complaint, in no way relating to or connected with the pleadings preceding it, in which they allege new and different causes of action: that the defendant Benjamin Turner, the first guardian named, has failed to account to the said second guardian, deceased, in his life-time, for large sums of money of his said ward; that the ward had obtained the judgment first above mentioned against the second guardian and the sureties to his guardian bond; that they had respectively paid parts, aggregating a sum equal to the whole of that judgment, and were entitled to be subrogated to the rights of the said ward against the defendants, and to have them severally contribute, &c., &c., and they demanded judgment accordingly.</p> <p>Afterwards, the defendants filed their answer to the last mentioned complaint, in which they substantially deny the principal allegations therein; plead the statute of limitation; and insist that the present plaintiffs have been improperly allowed to come into this action as new parties, long after it began — after the pleadings of the original plaintiff and the defendants had been filed — and have been allowed to file a new complaint, in which they allege an entirely new, distinct and different cause of action from that at first alleged, and one that has arisen, if it has foundation at all, since the action began, and they insist that the Court could not, certainly without their consent, thus make new parties plaintiff, and introduce a new cause of action into the action, and substantially make a new and different action.</p> <p>At the trial, the Court adjudged that the plaintiff cannot maintain the present action, and dismissed the same. From this judgment, the plaintiffs appealed to this Court.</p>

This was a civil action, tried before Avery, Judge, at the Fall Term, 1885, of the Superior Court of Henderson county. A trial by jury was waived, and the Court found the facts as follows: “ On the 4th day of July, 1883, the mayor and commissioners of the town of Hendersonville, took from the defendants a bond for the payment of $400, for the privilege of retailing spirituous liquors in said town till July 1st, 1884, as follows: “ $400.

Civil action, tried before Connor, Judge, arid a jury, at January Term, 1886, of New Hanover Superior Court. The action was brought to recover damages for an injury to the plaintiff, alleged to have been caused by the negligence of the defendant.

<p>Civil ACTION, tried before Connor, Judge, at Fall Term, 1886, of GraNVILLE Superior Court.</p> <p>The following map will explain the controversy:</p> <p> </p> <p>There was a judgment for the defendant and the plaintiffs appealed.</p>

Civil action, heard before Avery, Judge, upon exceptions to the report of a referee, at Fall Term, 1885, of Mitchell Superior Court.

The material facts are, that in 1879, J. M. Powell, having obtained a judgment for money in the Superior Court of the county of Wayne, against the defendant, an execution thereupon duly issued to the sheriff of that county, and the defendant therein — the present defendant — owning a tract of land and having a homestead thereon, the same was duly valued and laid off to him, and it embraced one hundred and. ninety-five acres.

<p>CoNTR.ovee.sy submitted without action, heard by Montgomery, Judge, at' Chambers, in Charlotte, on April 22d, 1887.</p> <p>The following agreed statement of facts is submitted to the Court, as a controversy without action, under §567 of The Code:</p> <p>In the year 1879, Thomas R. Tate purchased at a sale under execution, three fifths of the real estate known as the Overman home place, in the city of Charlotte. The sheriff of Mecklenburg county conveyed the same by deed to Thos. R. Tate and his heirs, to hold for the sole and separate use of Mary 0. Tate, for her life, and at her death to such child or children, and the representatives of such, as -she shall have living by Thomas R. Tate, and their heirs forever; but should the said Mary C. Tate die without a child, or representatives of such, living at her death, then to the said Thomas R. Tate, and his heirs forever. In 1874, Thomas R. Tate died, leaving surviving him his widow Mary C. Tate, a number of children by a former marriage, and Caswell Tate and Annie Tate, children of Mary C. Tate.</p> <p>In 1886, the plaintiff was the owner in fee simple of four fifths of the remaining two fifths of the said real estate, and was also owner of one fifth of said two fifths during the life of Charles Overman. C. PI. Overman was the owner of the remainder in the said one fifth of two fifths after the death of Charles Overman.</p> <p>In November, 1886, the plaintiff brought his action for partition of the premises before the clerk of the Superior Court of Mecklenburg county; making parties defendant the heirs at law of Thomas R. Tate, among the number Caswell Tate and Annie Tate, minor children of Thomas R. Tate and Mary C. Tate, C. PI. Overman and Mary C. Tate. Such proceedings were had, that there was a judgment for a partition of said premises, and commissioners were appointed to make said partition among the parties according to their respective interests, filie commissioners filed their report on the first day of January, 1887, and after due notice to all of the parties to said action, the report was -confirmed without objection, by a judgment of the Court dated April 1st, 1887,</p> <p>On the 7th day of April, 1887, the plaintiff and the defendant Sims, entered into a contract in writing, properly executed, by which the plaintiff obligated himself to convey to the defendant by deed with full covenants of seizin and warranty, a part of the land allotted to the plaintiff in the action for partition, and fully described in said contract; and the defendant agreed to pay to plaintiff upon the receipt of such deed, the sum of eighteen hundred and fifty-six dollars and twenty-five cents. On the 18th day of April, 1887, the plaintiff offered to deliver to the defendant a good and perfect deed with full covenants of seizin and warranty, as he had contracted to do. The defendant refused to accept such deed, upon the ground that the plaintiff’s title was defective, for the reason that the plaintiff had no right to have partition of the premises.</p> <p>Upon this submission, the Court at Chambers declared the title of the plaintiff to be defective, and adjudged that the defendant go without day and recover his costs.</p> <p>From this judgment the plaintiff appeals.</p>

Civil action, tried before Graves, Judge, at Spring Term, 1886, of McDowell Superior Court. The plaintiff brought this acti'on to recover damages for injuries sustained by him, as alleged in the material parts of his complaint, whereof the following is a copy: “II.

<p>Civil action, in the nature of quo warranto, tried before Boykin, Judge, on a case agreed, at Spring Term, 1887, of Wilkes Superior Court.</p> <p>This action, brought with leave granted by the Attorney General, by the relator, under The Code, §608, is to try title to the office of clerk of the Superior Court of Wilkes county, to amove the defendant therefrom, upon an alleged usurpation, and to secure the plaintiff’s induction, was tried at March Term, 1887, upon tire following case agreed :</p> <p>1. The relator, Milton McNeill, and the defendant James C. Somers, were candidates for the office of Clerk, in 1886, and both were voted for at the election held on the 4th of November of that year. McNeill received a majority of the qualified votes, and on the 6th of November was declared duly elected for four years from and after the first Monday in December, 1886, by the Board of Canvassers.</p> <p>2. On the first Tuesday in November, 1884, McNeill was elected sheriff of Wilkes county, and on the first Thursday thereafter, declared by the canvassers to have been duly elected to said office for two years from the first Monday in December, 1884, on which day he appeared before the county commissioners, filed bonds as required by law, and was inducted into the office of sheriff. On the first Monday in December, 1885, he appeared again before the commissioners and renewed his official bonds — one being the bond for collection of State and county taxes ; and on the 1st of September, 1886, as sheriff, he received the tax books for taxes levied for the year 1886, with authority from the board of commissioners to collect the same. On the first Monday in December, 1886, and at the time of election, and also at the time he appeared to qualify, he held the said tax books, and was actually engaged in collecting the taxes, a large portion of which was at said date uncollected.</p> <p>At the November election, 1886, one John E. McEwen was elected sheriff for two years from the first Monday in Decern-ber, 1886, at which latter date he appeared and tendered the required bonds to the Board, which were accepted, and he qualified as sheriff, and was inducted into the office on that day, which office he still holds and exercises.</p> <p>4. On the same day, to-wit, the first Monday in December, 1886, the relator, McNeill, appeared before the Board of county commissioners, and produced a certificate of the clerk of the Board of Canvassers, which declared he had been elected clerk of the Superior Court for four years; tendered his official bond in the penal sum of ten thousand dollars, with proper conditions for a bond of the clerk of the Superior Court, signed by himself as principal, and others as sureties, and justified to over the sum of forty thousand dollars, and asked to be qualified and inducted into office; that said Board considered the application and declined to allow the same, and rendered the following order, setting forth their reasons for declining:</p> <p>“ In the matter of Milton McNeill: This case being heard on the application of M. McNeill to be inducted into the office of clerk of the Superior Court of Wilkes county, he having been declared to be duly elected by the Canvassing Board, on the 4th of November, 1886 ; and it appearing that said Milton McNeill did, as sheriff of Wilkes county, on the first Monday in December, 1885, execute a good and sufficient bond for the collection of State and county taxes due for the year 1886, and that his authority to collect the same had not terminated ; it is therefore considered and adjudged by the Board of Commissioners of Wilkes county, that said McNeill is ineligible to the office of clerk, by reason of his being tax collector of Wilkes county, the same being an office or place of trust or profit within the meaning and purview of Article NIV., §7, of the Constitution of the State, which provides that no person 'can hold two offices or places of trust or profit at the same time. In other words, Milton McNeill cannot be tax collector and clerk of the Superior Court of Wilkes county at one and the same time.”</p> <p>5. That said Board informed the resident Judge of the district (Judge Graves) of their action, who declared the office of clerk vacant, and appointed the defendant Somers to fill the vacancy until his successor should be duly chosen and qualified; and under this appointment, the defendant appeared before the Board on the first Monday in -January, 1887, and tendered his bond, which was accepted, and he was duly qualified and inducted into the office of clerk of the Superior Court of Wilkes county, and continues to hold and exercise the same under said appointment, as he claims he has the right to do.</p> <p>The Court gave judgment for the plaintiff, and the defendant appealed.</p>

Civil ACTION, heard before Boykin, Judge, at January-Term, 1886, of RobesoN Superior Court. This action was brought at the Spring Term, 1883, of the Superior Court of the county of Robeson, to recover the possession of the personal property mentioned and described in the complaint, the plaintiff availing himself of the provisional remedy of claim and delivery, at the time the summons issued. At the appearance Term of the Court, the complaint and answer were filed.

Civil action, tried before Avery, Judge, at Spring Term, 1886, of UnioN Superior Court. There was a judgment for the defendant, and the plaintiff appealed. The facts appear in the opinion.

<p>This was a civil ACTION, tried before Clark, Judge, at February Term, 1886, of Guilfokd Superior Court.</p> <p>Levi Efland died intestate in the county of Guilford in October, 1882, and the plaintiff is his widow and the defendants are his children and heirs at law. The complaint alleges, among other things, that Levi Efland, was, at the time •of his death, and had been for several years previous thereto, in the undisputed possession of two tracts of land described in the complaint. That one of said tracts was sold at public auction about ten years ago by the executors of one George •Smick, and bid off by the defendant Geo. W. Efland, in pursuance of an agreement between him and his father, Levi, .and paid for by the said Levi, and the deed made by his direction to the said George for the use and benefit of the said Levi, who immediately took possession of the land, paid the taxes thereon, and used it as his own.</p> <p>That the said Levi was seized of the second described tract •on the 7th day of March, 1881, on which day the sheriff of Guilford sold the same under execution against the said Levi, when the land was bought by the defendant George W. for his father, under an agreement theretofore made between them to that intent and purpose, and the said Levi paid the purchase money and took a deed from the sheriff to the defendant Ellen Efland, for said land, for his own use And benefit, as was understood and agreed by and between them, and the said Levi continued in the use and possession •of the said land as he had always done before, until the time •of his death, without any claim by the said Ellen to hold the same for her own use or benefit.</p> <p>That although the title to the said tracts of land were made, one of them to the defendant George, and the other to the defendant Ellen, yet the said defendants never paid anything therefor; that neither of them had the means or ability to purchase and pay for said land, and that the equitable •estate therein was in her husband at the time of his death. That the plaintiff is entitled, as the widow of the said Levi Efland, to have dower in said land, and has demanded of the •defendants to allot and set apart to her her dower therein, hut that they deny the equitable estate of the said Levi, •claim to hold said land free from said equities, and refuse to allow her right to dower, and she asks that the said George and Ellen be declared trustees, &c., and that she be adjudged entitled to dower, &c.</p> <p>The defendants, except John W. Efland and William Brown, answer the complaint, and deny all the material allegations therein, and among other defences, say that small sums were advanced by Levi Efland to George W. and Ellen, but the deeds were made to them, with a view-on the part of the father, of secreting the same, and to secure his estate and ef-ects from his creditors, being at the time considerably indebted on his own account and as surety, but with no purpose in any way to defraud the plaintiff, and the allegation that the “ plaintiff has a right to dower in any of said land is denied, and the defendants aver that all sums of money advanced toward the payment for these two tracts of land, were with the view and purpose on the part of the said Levi, to advance his said children, and to secure his estate from his creditors.”</p> <p>“Fora second defence, relying on the first as if fully herein set out, the defendants suggest that this Court has not jurisdiction of this cause, and demand judgment for costs.”</p> <p>On the calling of the cause for trial, and after reading the pleadings, the defendants moved his Honor to dismiss the action by way of demurrer ore tenus, for that the claim of dower of plaintiff, if ally she had, should have been made by a special proceeding, returnable before the clerk, and not at Term, and for that the complaint did not state facts sufficient in law to constitute a cause of action, and on consideration of said motion, after debate by counsel, the Court overruled said motion, and ordered the trial to be had, and to this ruling of the Court the defendants excepted.</p> <p>Thereupon a jury was impanelled and issues submitted to them, which, together with the responses thereto, are as follows:</p> <p>1. Was Levi Efland in possession of the two tracts of land described in the complaint at the time of his death ?</p> <p>Answer — Yes.</p> <p>2. Was the 42 acre tract of land bought for Levi Efland by George W. Efland on agreement between them, and paid for by said Levi Efland ?</p> <p>Answer — Yes.</p> <p>3. Was the deed made to George for the benefit of said Levi ?</p> <p>Answer — Yes.</p> <p>4. Was the title so directed to be made to George to cover and protect the land from Levi’s creditors ?</p> <p>Answer — Yes.</p> <p>5. Was the tract of 150 acres bid off at the sheriff’s sale by George Efland for bis father Levi by agreement between them ?</p> <p>Answer — -Yes.</p> <p>6. Was the said tract of 150 acres paid for by Levi Efland?</p> <p>Answer — Yes.</p> <p>7. W as the deed taken in the name of Ellen Efland for the benefit of Levi Efland ?</p> <p>Answer — Yes.</p> <p>8. Was the title so directed to be made to Ellen to cover and protect the land from Levi’s creditors?</p> <p>Answer — Yes.</p> <p>Besides these issues and responses, the defendants proposed that another issue should be submitted, as to whether the alleged agreements between George W. Efland and Levi Efland, that George should buy the two tracts of land for the benefit of Levi Efland, was in writing or parol, and in answer to this proposal, the plaintiff admitted in open Court that it was by parol.</p> <p>Whereupon, the presiding Judge made entry of said admission, and held it therefore unnecessary to put that issue to the jury.</p> <p>Upon the rendition of the verdict, the plaintiff moved the Court for judgment for dower, and for writ to lay off the ■same, which motion the defendants resisted, and at the same time moved for judgment in their behalf:</p> <p>1. For the want of jurisdiction in the Court, and the lack ■of facts sufficient to constitute a cause of action.</p> <p>2. For that the plaintiff admitting the agreements between Levi Efland and George W. Efland to buy the two tracts of land for Levi Efland’s benefit, to have been in parol, there was no enforcible trust for Levi under the statute of frauds, and there being none for him, there could be none for the plaintiff, his widow.</p> <p>3. For that the jury having found that the deeds were ■directed to be made to George W., and to Ellen, to cover and protect the lands from Levi’s creditors, then, although Levi paid the purchase money, no Court would construe the holders ■of the legal title into trustees for Levi Efland, they being dishonest trusts, and would not so construe for the benefit of his widow, claiming derivatively through him.</p> <p>4. For that in any view of the case, Levi Efland could not he construed to have anything of higher dignity than amere right to have a trust declared for him, and of rights a widow cannot be endowed, but only of seizins and equitable estates.</p> <p>His Honor overruled the motion of the defendants, and adjudged the plaintiff to be entitled to dower, and defendants excepted and appealed to the Supreme Court.</p>

Civil ACTION, tried before Gudger, Judge, at Spring Term, 1886, of PasqjjotaNK Superior Court.

<p>Civil actiok, tried before Montgomery, Judge, and a jury, at Fall Term, 1886, of Bunios Superior Court.</p> <p>The plaintiff brought this action to recover possession of a mule, which he alleges is his property. On the trial, the evidence in substance was, that while the plaintiff was under age, living and working with and for his father on his farm, the latter said to him on one occasion, that “ he might have the colt if he would raise it.” After that, the plaintiff claimed the colt, but it remained with the father's horses, and was fed with them. The father, with the consent of the plaintiff, exchanged the colt for the mule in controversy, which was put upon the farm, the plaintiff claiming and using it when he saw fit, but it was used by the father for his purposes on the farm, and when the father left home in 1881, not to return, on account of some domestic trouble, he took the mule with him and kept it two or three years, and until his death. The plaintiff never took the colt or the mule from the farm of the father, though he left himself. The father said, perhaps more than once, that the mule was the plaintiff’s. On more than one occasion, persons wanted to hire the mule, and the father referred them to the plaintiff, saying, “ if he will let you have it, all right,” and the plaintiff received the hire. There was no evidence that the plaintiff ever made demand of the father for the mule.</p> <p>The Court, upon the evidence, intimated the opinion that the plaintiff could not recover. Thereupon, the plaintiff submitted to a judgment of nonsuit, and appealed to this Court.</p>

This is an appeal from an ORDER APPOINTING a receiver, made by Gilmer, Judge, at the August Term, 1886, of Robeson Superior Court. The plaintiffs are the heirs at law of Duncan McNair, deceased, who, in Januarj'', 1869, had executed a mortgage to one John McOallum, a copy of which is filed with the complaint. John McOallum died in 1871, leaving a will, with Alex.

Civil action, tried before Boykin, Judge at Fall Term, 1886, of Iüedell Superior Court. The Court intimated that upon the evidence the plaintiff could not recover, whereupon he took a nonsuit and appealed. The facts appear in the opinion.

After the judgment in this case, (see 95 N. C., 358,) the referee made his report, and the defendant filed exceptions thereto, which are set out in the opinion.

MotioN to continue an injunction to the hearing, in an action pending in the Superior Court of Rutheueokd county, heard before Avery, Judge, at Chambers, in Newton, on June 1, 1886. The defendant, the “ Rutherford Railway Construction Companjq” is a corporation organized under and in pursuance of the statute, (Acts 1883, chap. 141). The sections of that statute necessary to an understanding of the opinion of the Court, provide as follows : “ Seo. 2.

MotioN to continue an injunction to the hearing, made in •an action pending in Cleveland Superior Court, heard before MacRcie, Judge, at Chambers, in Lexington, on June 4, 1886. Held: deemed and declared to be of no legal effect. II.

Civil action, tried before Shipp, Judge at Spring Term,. 1886, of Cherokee Superior Court. After the appeal was docketed in this Court, the appellee-moved to dismiss for non-compliance- in giving and justifying the appeal bond, as required by The Code, §560, in that the sureties do not justify in double the amount thereof. This motion was filed on December 13th, 1886.

This was a civil actiok, tried before Connor, Judge, at the November Term, 1886, of OraNGE Superior Court, upon the following case agreed: I. That bj’' tire will of Joseph Armstrong, dated the 23d II.

<p>Civil ACTION, tried before Clark, Judge, at January Term,. 1886, of GeaNVILLB Superior Court.</p> <p>The defendants appealed.</p> <p>The facts appear in the opinion.</p>

Civil action, tried before Boykin, Judge, at Fall Term, 1886, of Iredell Superior Court. The Court having intimated that on the evidence the plaintiff could not recover, she submitted to a nonsuit, and appealed. The facts appear in the opinion.