Volume 97 — North Carolina Reports

<p>Civil action, tried on appeal from a justice of the peace, before Gilmer, Judge, and a jury, at Fall Term, 1886, of CUMBERLAND Superior Court.</p> <p>This action, tried before a justice of the peace of Cumberland county, and carried into the Superior Court by the defendants’ appeal, is for the recovery of one hundred dollars, the unpaid residue of a draft drawn by the defendant Byrd upon the other defendants. The essential facts of the case, which seem not to have been disputed, are these :</p> <p>The defendants Woodj' & Currie, on March 29th, 1885, at Wilmington, addressed to their co-defendants the following-letter :</p> <p>O. M. Byrd, Esq., Bunn’s Level, N. C.:</p> <p>Dear Sir : Enclosed find account sales raft timber. We got all we could for your timber, and concluded it was not worth while to hold any longer. If you have not drawn a $50 draft, you can draw for the net proceeds, $223.03, at sight. If 3rou have drawn $50, draw on us for $173.03. Timber still dull and low, $2.00 to $10.00.</p> <p>Yours, &c., Woody & Currie.</p> <p>In pursuance of this authority, was drawn a draft, as follows;</p> <p>$172.53. Fayetteville, N. C., April 4th, 1885.</p> <p>At sight, pay to the order of R. M. Nimocks, one hundred .seventy-two and 53-100 dollars, balance on timber sales, ■value received, and charge the same to account of</p> <p>C. M. Byrd.</p> <p>To Messrs. Woody & Currie, Wilmington, N. C.</p> <p>The letter was shown to the plaintiff a day or two before the date of the draft, and then a draft was drawn by and on the parties for 850.50, and the other on the day of its date, soon after, for the residue of the sum mentioned in the letter, and received by the plaintiff upon the faith of what is therein stated.</p> <p>The plaintiff endorsed the draft to the Fayetteville National Bank, by whom it was presented, and went to protest for nonacceptance, and thereupon the plaintiff took it up and brought suit on May 25th, 1885.</p> <p>After its dishonor, the drawee paid to the plaintiff $72.03, and refused to pay more, saying that a mistake of $100.00 had been made in Byrd’s account when the letter was written, which had since been discovered.</p> <p>No defence was made by Byrd, and no evidence offered by the resisting defendants.</p> <p>These moved to dismiss the action for want of jurisdiction in the justice who tried the cause :</p> <p>I. Because it was an action not founded on contract.</p> <p>II. Because two separate causes of action, one against the defendant Byrd, ex contractu, and one against Woody & Cur-rie, ex delicto, had been joined in the same suit. His Honor being of opinion that there was no improper joinder, and that the justice had jurisdiction, refused defendants’ motion, and they excepted. The defendants Woody & Currie asked for the following special instructions, which were refused :</p> <p>I. That the defendants Woody & Currie not being parties to the draft, were not liable thereon.</p> <p>II. That the letter, not being intended as a letter of credit, hut a simple letter from a commission merchant to his customer as to the state of his account M'ith them, that the plaintiff had no right to treat it as a contract, or basis for a contract, with him.</p> <p>III. That the plaintiff, being a stranger to said letter, could take no advantage of any promise therein to Byrd, expressed or implied.</p> <p>IV. That the time between the date of the letter and the date of draft, was too long for the plaintiff to have treated it as a promise or contract expressed or implied.</p> <p>V. That upon the whole testimony, talcing the same as true, the plaintiff was not entitled to recover.</p> <p>His Honor charged the jury, that if they believed the evidence, they should find a verdict in favor of the plaintiff, and the defendants Woody & Currie excepted. Verdict and judgment for the plaintiff against the defendants Woody & Currie, and they appealed.</p>

This was a MOTION made by the plaintiffs, at the February Term, 1887, of the Supreme Court. The nature and object of the motion appear in the opinion.

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

Civil action, tried before Philips, Judge, at October Civil Term, 1886, of Wake Superior Court.

MotioN in the cause to set aside a judgment, heard on appeal from the clerk, before Clark, Judge, at Chambers, on the 1st day of June, 1886. This was a motion made in the cause to set aside a sale made by the plaintiff, as administrator of E. W. Pickett, heard before Clark, Judge, at Chambers.

Civil ACTION, tried on appeal from a justice of the peace, before Connor, Judge, at August Term, 1886, of OkaNGE Superior Court. There was a judgment for the plaintiff, and the defendant appealed. The facts appear in the opinion.

This was a civil action, to recover damages for slander, tried before Shepherd, Judge, at January Term, 1887, of Wayne Superior Court. The first allegation of the complaint sets forth at considerable length, the burning of certain houses on the 23d of April, 1886. One of these houses was occupied partly as a dwelling, partly as a storehouse, and partly as a warehouse; one other was occupied as a dwelling, and one other as a store. The second allegation is as follows: “ II.

Civil action, tried before Shipp, Judge, and a jury, at Fall Term, 1886, of Gates Superior Court. There was a judgment for the defendant, and the plaintiffs appealed. The facts appear in the opinion.

Civil action, tried before Montgomery, Judge, at February Term, 1887, of Union Superior Court. The plaintiffs brought this action on the 28th of October, 1886, before a justice of the peace, to recover the money due upon the note under seal of the defendant, for $61.93, dated the 23d of February, 1876, and at one day from date, bearing interest at the rate of eight per cent, per annum, from the 11th day of October, 1875.

Civil action, tried before Avery, Judge, at Fall Term, 1886,. of Haywood Superior Court. With the issue of the summons on July 1st, 1883, the plaintiff sued out a warrant of attachment against the defendant, a non-resident debtor, which was levied upon two stocks of goods, one at Waynesville and one at Pigeon River,, as his property.

Civil action, tried before Montgomery, Judge, and a jury, at February Term, 1887, of Meckxenbuiíg Superior Court. The complaint alleges: ‘‘1.

Civil action, tried before Avery, Judge, at Spring Term, 1886, of Rutherford Superior Court.

<p>Telegraph Companies — Negligence.</p> <p>1. An act which under some circumstances would be simply negligent,. under other circumstances would be grossly negligent.</p> <p>2. A telegraph company may limit its liability from ordinary negligence-in sending unrepeated messages to the amount paid for the transmission of the message, but it cannot exempt itself where there has-been gross negligence.</p> <p>3. "What would be ordinary negligence in sending a message apparently of small consequence, might be gross negligence where it was manifest that the message was important.</p> <p>4. A party sending a telegram is charged with notice of the printed contract at the top of the message, whether he has read it or not.</p> <p>5. The failure by a telegraph company to employ careful and skillful operators is gross negligence.</p> <p>(Lassiter v. The Telegraph Co., 89 N. C., 336; distinguished).</p>

PETITION by the defendant for a certiorari, heard at February Term, 1887, of the Supreme Court. The petition of the defendant for the writ of certiorari,. represents that plaintiff’s counsel prepared the case on appeal, which, with defendant’s exceptions, was delivered to-the presiding Judge for his examination and settlement.

Civil action, tried before Avery, Judge, and a jury, at August Term, 1886, of Buncombe Superior Court.

Civil action, tried before Montgomery, Judge, at November Special Term, 1886, of Mecklenburg Superior Court. Tlie complaint alleges that the defendant, by the negligent and unskillful management of one of its locomotives and cars attached, ran over the plaintiff's arm and broke it, and caused other injuries, by which he sustained damages to the amount of $20,000.

<p>Venue■ — Cities and Towns.</p> <p>1. Cities and towns must be sued in the county in which they are located, and if suit is brought in another county, they have the right to have it removed.</p> <p>2. Where an action is brought to the wrong county, and the defendant demands in writing that the place of trial be changed, the words “ may change the place of trial,” in §195 of The Code, will be interpreted as meaning “ must change,” &c.</p> <p>(Cloman v. Staton, 78 N. C., 235; Johnson v. Com’rs, 67 N. C., 101; Alexander v. Com’rs, Ibid., 330; Jones v. Com’rs, 69 N. C., 412; State v. Com’rs, 70 N. 0., 137; cited and approved).</p>

<p>Appeal — Assignment of Error — Case on Appeal.</p> <p>1. An appeal will not be dismissed because there is no statement of the case or assignment of error, as neither is necessary to perfect the appeal, but if no error appears in the record in such case, the judgment will be affirmed.</p> <p>2. The objection of the want of jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, may be made in the Supreme Court for the first time, although no error whatever is assigned in the record.</p> <p>3. The appeal will be dismissed when it does not appear in the record that an appeal was taken:</p> <p>4. Where a paper appeared in the transcript, purporting to be the case on appeal, but it was signed only by the appellant’s counsel, and there was nothing to show that it had been served on the appellee or his counsel, or that either of them had ever seen it, it will not be considered.</p> <p>5. No agreement of counsel will be recognized, unless in writing and signed by both parties.</p> <p>.{State v. Crook, 91 N. C. 536; State v. Byrd. 93 N. C., 624; Neal v. Mace, 89 N. C., 171; Williamson v. The Canal Co., 78 N. C., 156; Meekins v. Tatem, 79 N. C., 546; Moore v. Vanderburg, 90 N. C., 10; Spence v. Tapseott, 93 N. C., 576; McCoy v. Lassiter, 94 N. C., 131; Brooks v. Austin, Ibid., 222; cited and approved).</p>

Civil action, tried on appeal from a justice of the peace, before Shepherd, Judge, at Fall Term, 1886, of Nash Superior ■Court. This action was begun before a justice of the peace, to recover $200, which the plaintiff alleges that the defendant’s intestate, in his life-time, owed him for services rendered. On the trial before the magistrate, the plaintiff exhibited a statement of account, as follows: “ Griffin Bird to M. BraNtley, Dr. “January 15, 1876.

<p>Appeal from an order, made by the clerk, in a Special Proceeding, heard by Oudger, Judge, at February Term, 1886, of Beaufort Superior Court.</p> <p>The point on which the case goes off in this Court renders it unnecessary to state the facts.</p>

PetitioN by the plaintiff to rehear, filed at February Term, 1887, of the Supreme Court. The case is reported in 94 N. G., 397. The grounds of the petition appear in the opinion.

This was a special PROCEEDING for the partition of land, fried upon issues joined, before Shepherd, Judge, at Pall Term, 1886, of Pitt Superior Court. The plaintiffs alleged that the3r were tenants in common with the defendants of the land mentioned in the petition. The defendants denied this, and claimed to be sole seized. Issues were submitted to a jury, who found that Bart.

Motion in the cause to enter satisfaction of a judgment, heard before Philips, Judge, at October Civil Term, 1886, of Wake Superior Court. His Honor refused the motion and the defendant appealed. The facts appear in the opinion.

Civil action, heard upon exceptions to the report of a referee, by Shepherd, Judge, at Spring Term, 1886, of Edge-cojibe Superior Court.

<p>Civil action, tried before Avery, Judge, at Spring Term, 1886, of UNION Superior Court.</p> <p>T. G. Cureton, a citizen, and with his family residing in South Carolina, died in 1882, intestate, leaving an estate both real and personal in this as well as in that State. Soon after-wards, and before the issue of letters of administration by a Court of North Carolina, his widow applied by petition to a justice of the peace to have her year’s allo’wance set apart out of the intestate’s personal property, which was done by him and two other persons qualified to act under §2121 of The Code, and she took possession of the articles so allotted, and applied them to the maintenance of herself and the minor children, included in the estimate of their value, under the directions of §2118.</p> <p>Administration was granted by the proper Court, in March, 1888, to the plaintiff, who in December of the next year, instituted this suit to recover the value of the goods, as misapplied assets, needed in the payment of debts. The defences set up are:</p> <p>1. That the allowance being made in pursuance of the-forms of law, the report made by the commissioners confirmed, and judgment regularly entered in the Superior Court for the deficiency estimated, the money to-be paid out of assets when received by the administrator, the proceeding can be reached and set aside only by a direct impeaching action; until which the allowance must stand.</p> <p>2. That as it does not appear that the non-residence of the defendant was known to the commissioners, their action in the premises was regular and valid, and so must remain until reversed.</p> <p>3. That the creditors and plaintiff, not having opposed the allowance, nor appealed from the finding of the commissioners, under §2124 of The Code, are now concluded.</p> <p>4. That the estimate for the children is in trust for their support, and having been thus used, no liability therefor rests upon the defendant.</p> <p>The Court, by consent of parties, found the facts as stated, and thereupon caused to be entered the following judgment:</p> <p>“ The Court finds, as a conclusion of law, that the creditors having failed to object within the time prescribed by law, to the allowance made to the defendant out of the estate of the intestate, and to proceed as prescribed in chapter 53 of The Code, the administrator has no right to recover by action in this Court the value of the property assigned to her.</p> <p>It is further ordered, that the defendant go without day and recover of plaintiff costs of action, to be taxed by the clerk.”</p> <p>From this judgment the plaintiff appealed.</p>

This was a civil ACTION, tried on complaint and demurrer, before Graves, Judge, at August Term, 1886, of Meck-lenburg Superior Court. The plaintiff alleged, in substance, that there was, and had been for fifty years or more, a public highway, used and worked as such by the county authorities of Mecklen-burg county, between the city of Charlotte and Rozzel’s Ferry, on the Catawba river, leading to the town of Lin-colnton.

<p>Action to Recover Land — Demurrer—Parties—Tenants in Common.</p> <p>1. Where the complaint in an action against several defendants to recover land, described the locus in quo as several tracts adjoining each other and situated in the counties of Cumberland and Bladen, of which the defendants are in possession and wrongfully withhold from the plaintiffs; It was held, that under this allegation, the Superior Court of Cumberland had jurisdiction.</p> <p>2. Where the parties in interest are very numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all, but how far those not actually before the Court may be affected by the judgment, is left open.</p> <p>3. One tenant in common may sue without joining his co-tenants for the recovery of the possession of the common property.</p> <p>4. The statement in a complaint of redundant matter, or of evidential facts, is no ground for demurrer.</p> <p>5. So, where in an action to recover land, the plaintiff sets out his claim of title, the allegations in this respect cannot render the complaint de-murrable on the ground that it joins several distinct causes of action.</p> <p>6. Where in an action to recover several tracts of land, in the separate possession of several defendants, the complaint does not allege of which tract each defendant is in possession; It was held, that it constituted no ground for demurrer.</p> <p>{Bronson v. The Insurance Co., 85 N. C., 414: Young v. Greenlee, 90 N. C., 319; Best v. Clyde, 86 N. C., 4; cited and approved).</p>

Civil action, tried before Shepherd, Judge, at Fall Term, 1886, of Nash Superior Court. The plaintiffs are the executors of the will of A. H. Ar-rington, who died in 1872, and to whom and for whose benefit the deed below set forth was executed. The defendant is the executor of the will of W. H. Rowland, who died in January, 1886, and who was the maker of the deed referred to above.

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

Civil action, heard upon appeal from tlie clerk of the Superior Court of Chatham county, by Gilmer, Judge, at Chambers, on July 1st, 1886. The defendant Thomas A. Brooks is the sole surviving executor of the will of Aaron D, Headen, who died in the year 1859, and his co-defendants, except the husband of the feme defendant, are the legatees and devisees of the will mentioned.

Civil action, tried before Philips, Judge, and a jury, at September Term, 1886, of Wayne Superior Court. This action, begun before a justice of the peace, was brought to recover possession of four bogs, which the plaintiff alleged to be his property, and he availed himself in the course of the action of the provisional remedy of claim and delivery.

Civil action, tried before Shepherd, Judge, at Fall Term, 1886, of Wilson Superior Court. The plaintiff alleged that one Martha Egerton and the defendant, executed to him a note, of which the following is a copy; “ With interest from date, at 8 per cent., we, or either of us, promise to pay Turner Joyner the sum of two hundred and thirteen dollars and twenty-five cents, for value received. Oct. 28th, 1874.

This was a civil ACTION, tried before Clark, Judge, at January Term, 1887, of the Superior Court of Columbus county.

Civil action, tried before Avery, Judge, and a jury, at Spring Term, 1886, of Mecklenburg Superior Court. The following plat will explain the matter m controversy There was a judgment for the plaintiff, and the defendants appealed. The facts fully appear in the opinion.

<p>Civil action, heard on a case agreed, by Shipp, Judge, at January Term, 1887, of Halifax Superior Court.</p> <p>Pending the action on the guardian bond of the defendant Hervey and his sureties, John T. Gregory, clerk of the Court, was appointed receiver, and funds belonging to the infants Annie N. and Maggie W. Conigland came into his hands as such. The order was made at Spring Term, 1882, in these words:</p> <p>“ This cause coming on to be heard, and it being made to appear to the satisfaction of the Court, that John T. Gregory is a suitable and responsible person to appoint as receiver of the estates of Annie N. Conigland and Maggie W. Conig-land ; now, on motion of the relator of the plaintiff, and of the attorneys for the infants : It is ordered and adjudged by the Court, that the said John T. Gregory be, and he is hereby appointed receiver of the estates of the said Annie N. Conigland and Maggie W. Conigland, infants, with all the powers conferred by law upon such receiver; that no bond be required of him ; and that he be permitted to expend the income of the said infants for their maintenance and education during the next twelve months, and such other sums not exceeding one hundred dollars, for services rendered, and to be rendered said infants by their attorneys; and that he make annual returns to this Court, to be passed upon and audited in this cause by the Judge presiding.</p> <p>Among the moneys collected by the receiver, was the sum of $2,616.16 paid by the administrator of the deceased father of the infants, whereof a portion was deposited by him in a Bank in Norfolk, and a certificate taken in the following form:</p> <p>“ The Exchange National Bank,</p> <p>Noefolk, Va., October 19th, 1882.</p> <p>“John T. Gregory has deposited in this Bank twenty-two hundred and eighty-five dollars and nine cents, payable to the order of J. T. Gregory, receiver of Annie N. and Mag.gie W. Conigland, on the return of this ■ certificate properly endorsed.</p> <p>“ The holder is entitled to interest from date, at the rate of six per centum per annum, if it remains three months or longer, but this Bank reserves the right, upon giving ten days’ notice, to reduce the rate of interest on the 1st day of January and 1st day of July of each year.</p> <p>“Such notice to be served personally, or through the post office, directed to the address named on the books of this Bank.</p> <p>“ No. 1051. John W. Whitehead, President.”</p> <p>The Bank failed in April, 1885, at which time it was indebted on the certificate of deposit $2,102.29, with interest from the 19th day of September, 1884, of which $1,185.16, with interest from November 1st 1884, was for the benefit of the said Maggie W. Conigland. The receiver had theretofore paid over to the said Annie N. Conigland, who became of age_day of_, 188_, her part of the fund, her interest therein then belonging to him.</p> <p>At the time of making said deposit, and up to the failure of the Bank, the receiver believed it to be a perfectly safe and convenient investment, at a good rate of interest; the Bank, up to its failure, was considered solvent, had good credit, and possessed the full confidence of the business community.</p> <p>The receiver kept his own private account current with the Bank, but had none of his funds deposited there or in any other bank, on certificate, except, as he had paid over to said Annie N. her share of the deposit money, it had become his own.</p> <p>The receiver filed annual accounts of - the funds up to and including Fall Term, 1884, which were approved by the ■Court, and ordered to be put on the record, but in none did be report what investments he had made, or what securities-he had taken therefor.</p> <p>It is unnecessary to go into further details, since in the general account of the trust funds, the only controversy is in reference to the personal accountability of the receiver for the loss sustained by reason of the insolvency of the bank.</p> <p>Upon the facts embodied in the case agreed, the Court was of opinion that the loss should fall upon the fund, and rendered judgment against the receiver for the residue in his hands with interest, instead of the larger sum of $2,203.78 which he owes, if charged with the sum so lost.</p> <p>From this judgment the relator of the plaintiff appealed.</p>

Civil action, heard on appeal from a justice of the peace, by Clark, Judge, at Fall Term, 1886, of Sampson Superior Court. There was a judgment for the defendant and the plaintiffs appealed.

<p>Judge’s Charge — Exception to.</p> <p>1. Where the assignment of error to the J udge’s charge to the jury, was- “ that the appellant excepted to the whole charge and especially to the instruction on the third issue;” It ivas held, that such assignment of error was improper.</p> <p>2. Where there is no evidence to prove the affirmative of an issue, it is-not error for the Judge to so charge the jury.</p>

MotioN, by the defendant in the cause, to re-open an account, heard before Shipp, Judge, at June Term, 1886, of Buncombe Superior Court. This case was before the Court at February Term, 1886, and is reported in the 94 N. 0., 567-574. The motion was refused, and the defendant appealed. The facts appear in the opinion.

<p>Civil action, tried before Boykin. Judge, and a jury, at May Term, 1886, of Cumbebland Superior Court.</p> <p>The case has been twice before this Court, and is reported in 85 N. C., 291; and 92 N. C., 110.</p> <p>There was a judgment for the plaintiffs, and the defendant appealed.</p>

Civil action, tried before Avery, Judge, and a jury, at Fall Term, 1886, of Haywood Superior Court.

Civil action, tried before Boykin, Judge, at May Term, 1886, of Cumberland Superior Court.

MotioN in a cause pending in Buncombe Superior Court, beard by Avery, Judge, at August Term, 1886, of said Court. After the appeal was docketed in this Court, a motion to dismiss was made; 1st, Because the appeal was taken from a judgment rendered at August Term, 1886, of the Superior Court, and the appeal was not docketed in the Supreme Court until December 22d, 1886, and 2d, Because the undertaking on appeal was not in the terms required by the statute.

Civil action, tried before Connor, Judge, at February Civil Term, 1886, of Wake Superior Court. During the 3rear 1884 the plaintiff cultivated land belonging to the defendant, under an agreement for an equal partition of the crops of wheat, corn and tobacco grown on the cleared portion, and for the retention of two thirds by the plaintiff, of such as were raised upon the land he might clear and in the same proportion they were to pay for the fertilizers used.

This was a civil aotiok, tried before Shepherd, Judge, at Spring Term, 1886, of NORTHAMPTON Superior Court.

MotioN to continue an injunction to the hearing, in a cause pending in Gkanville Superior Court, heard before Merrimon, Judge, at Chambers, in Henderson, February 26th, 1887.

PetitioN for dower, heard by MacRae, Judge, on appeal from a judgment of the clerk, at March Term, 1886, of Davidson Superior Court. Samuel Yorldy died in July, 1881, leaving a will, wherein he appoints the defendant William F. Henderson executor and testamentary guardian to his infant son, the defendant Samuel Iiill Yorkly. He left also a daughter, the defendant Mary A. Stinson, and the plaintiff, his surviving widow.

Civil ACTION, tried upon exceptions to a referee’s report, before MacRae, Judge, at Spring Term, 1886, of Stanly Superior Court.

<p>• This was a civil action to recover damages for slanderous words spoken by the defendant of the plaintiff, tried before Shepherd, Judge, at January Term, 1887, of Wayne. Superior Court.</p> <p>The slanderous words complained of are fully charged in second, third, and fourth allegations of the complaint. The-answer of the defendant admits that the words charged were spoken by him, but denies that they were false and malicious, or slanderous, and sets out in detail and at considerable length, alleged facts and circumstances in justification of their use.</p> <p>Issues were submitted to a'jury, and in response they found that the defendant, in using the words set forth in the second and third allegations of the complaint, intended to charge that the plaintiff did wilfully, wantonly and felo-niously burn the houses mentioned in the complaint, and that this charge was false and malicious.</p> <p>The defendant relied on his plea of justification, and in support of it, introduced much testimony tending to show that J. H. Hollowell and the plaintiff conspired to burn the houses mentioned in the pleadings, and also testimony to show that J. H. Hollowell procured the plaintiff to burn, and that the plaintiff did burn them.</p> <p>Upon the trial, the plaintiff offered himself as a witness in his own behalf, and, for the purpose of assessing vindictive damages, was asked the following question: “ What was your pecuniary condition at the time of the using of said words?” This was objected to by the defendant. The objection was overruled, and the plaintiff answered : “ I have nothing, except what is necessary to get along with. I have no property.” The defendant excepted.</p> <p>The plaintiff introduced one Henry Lee, and asked him if he knew the general character of J. H. Hollowell. This was objected to by the defendant. The objection was overruled, and the witness was permitted to testify^ that the character of J. H. Hollowell was good. The defendant excepted.</p> <p>Said Hollowell was not introduced as a witness, but the defendant offered evidence tending to establish the truth of all the matter alleged in the answer, in justification and mitigation, and that the plaintiff was employed as a clerk by J. H. Hollowell about a wreek before the fire.</p> <p>The pleadings were not offered in evidence, but defendant’s counsel argued in support of justification as well as in mitigation. The Court, among other things, charged the jury, “that they must be satisfied that defendant, in speaking the words, intended to charge the plaintiff as stated in innuendoes, and that ifthey so found, and that said charges were false, the law presumed malice, and that plaintiff would .at least be entitled to nominal damages. That if there was .actual malice they might give vindictive damages.”</p> <p>In telling the jury what circumstances they might consider on the question of vindictive damages if they found actual malice, the Court said: “ If the jury believe from the ■evidence, and from the facts and circumstances proved on •the trial, that when the defendant filed his plea of justification he had no reasonable hope or expectation of proving the truth of it, and if the jury believed from the evidence that the defendant is guilty of the slander charged in the complaint, they may, in fixing the amount of the plaintiff’s damages, consider this fact as a circumstance. That although they should find from the evidence, that the defendant has not sustained his plea of justification, still the fact that he has filed such plea, should not of itself be regarded by the jury as an aggravation of the original offence, if they believe from the evidence that it was filed in good faith and with an honest belief on the part of the defendant that he would be able to sustain the plea by evidence.</p> <p>There was a verdict for the plaintiff.</p> <p>Motion for a new trial by the defendant for error in receiving testimony as to the pecuniary condition of the plaintiff and as to the character of J. H. Hollowell, and for error in the charge of the Court upon the effect of the plea of justification. Motion overruled. Judgment for plaintiff. Appeal by defendant.</p>

Civil action, tried before Shipp, Judge, and a jury, at Eall Term, 1885, of Catawba Superior Court. There was a judgment for the defendant, and the plaintiff’s relator appealed. The facts appear in the opinion.

Motion in the cause, heard by Gilmer, Judge, at Spring Term, 1885, of Haywood Superior Court. In the progress of the cause, and after the admission of an interplea of T. D. Welch and some changes in the form of the action, at Fall Term, 1882, of the Superior Court of Haywood county, an issue in this form was submitted to and a response returned by the jury: What estate did the deed from T. D. Welch, dated October 1st, 1870, convey to Newton Brendle ? Absolute?

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

<p>Res Judicata — Motion in the Cause.</p> <p>Where the subject-matter 'of an action has been once determined by the Court, a new action will not be entertained in regard to it. If for any reason the former judgment ought to be set aside, it can only be done by a motion in the cause for that purpose if the action is still pending, and if it has been determined and come to an end, then by a new action to directly attack it.</p> <p>{Miller v. Frezor, 82 N. C., 192; Gay v. Staneill, 76 N. C., 369: Long v. Jarratt, 94 N. 0., 443; cited and approved).</p>

Civil action, tried before MacRae, Judge, and a jury, at Spring Term, 1885, of Anson Superior Court. There was a judgment for the defendant and the plaintiff appealed.

<p>This was a civil action, tried before Boykin, Judge, at the Fall Term, 1886, of Stanly Superior Court.</p> <p>There was a verdict and judgment for the defendants, from which the plaintiff appealed.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

<p>Statute of Limitation — Lien of Judgment.</p> <p>1. The expiration of ten years after a judgment is docketed is equally a bar to an action, on such judgment, and to a motion to revive it, being dormant, so that execution may issue on it.</p> <p>2. The lien of a judgment expires at the end of ten years from the time it is docketed. The only provision which extends this time is that contained in C. O. P., §254; The Code, §435.</p> <p>(Murehison v. Williams, 71 N. 0., 135; Mauney v. Holmes, 87 N. C., 428; Sawyer v. Sawyer, 83 N. C., 321; McDonald v. Dixon, 85 N. C., 248, and 87 N. C., 404; I/ytle v. Lytle, 94 N. C., 683; cited and aiiproved).</p>

<p>This was a civil action, tried before Clark, Judge, at the August Term, 1886, of Catawba Superior Court.</p> <p>The plaintiff is the daughter of the intestate of the defendant, and brought this action to recover compensation for services which she alleges she rendered her father in his life-time while she continued to live with him next after she became twenty-one years of age, as his daughter. She does not allege an express promise on the part of her father to pay her compensation, nor facts tending to prove such an implied promise, other than that she was of age at the time .she did the service alleged and that the same was very burdensome and much of it disagreeable.</p> <p>The following is so much of the case settled on appeal as it is material to set forth here;</p> <p>“ It was in evidence by the plaintiff herself, that she was the daughter of defendant’s intestate; that she has never been married; that she is now about forty years of age, and that she lived continuously from her birth with her father to the date of his death, in the latter part of the year 1885; that her mother died about four years ago; that her father’s mind has been unsound since some time soon after her mother’s death; that he never made any agreement or contract to pay her anything; that she continued to live as a member of the family, eating at the common table, and that at the time of her mother’s death her father owned a small tract of land worth about $___, some cattle, household and kitchen furniture and about $350 in money; that in the latter part of his life her father became feeble in body and mind and required a good deal of attention, and had to be waited upon as a child; that he had to be undressed and washed by her, sometimes as often as three or four times a day, and that she had a great deal of filthy and unpleasant work to do for him, as he was imbécil; that she did all the cooking and caring for and waiting on the old man, whose condition was helpless; that her father was born in 1805; that all the property above mentioned was consumed except the land and about $50 worth of personalty; that she considered her services worth $10 per month. There was also other testimony as to the condition of the intestate’s mind and body, and as to the character of plaintiff’s services, some tending to show that he was able to labor and did some labor up to a short time before his death, and some tending to show on the contrary his total imbecility; that nothing had occurred in the family to interrupt the relation between the father and daughter as they had existed during her infancy ; and that one of his other children assisted her on one occasion when the father was sick, though she alone remained at home.”</p> <p>There was verdict and judgment for the plaintiff, from which the defendant appealed to this Court.</p>

This was a civil ACTION, tried before Boykin, Judge, at February Term, 1886 of the Superior Court of RICHMOND county, to recover the value of certain cotton mentioned in the complaint.

This was a civil ACTION, tried before Boylcin, Judge, at Fall Term, 1886, of Stanly Superior Court. The land in dispute belonged to Rebecca L. Mann, who died leaving a will, which was admitted to probate on March 20, 1883. The dispositions made of her property therein axe as follows: “I give and devise to my beloved mother, Elizabeth Mann, my whole estate, both personal and real, or for it to be put to the use of taking (“ care of” evidently omitted) her.

This was a civil actiok, tried before Avery, Judge, at August Term, 1886, of Buncombe Superior Court.

This was a civil action, tried before Boykin, Judge, at. September Term, 1886, of DavidsoN Superior Court. This action, begun before a justice of the peace on'January 30,1886, and, after trial and judgment against the defendant,, carried by his appeal to the Superior Court, is to recover the-balance due, after certain endorsed payments, upon the-following written instrument; $300. November 22d, 1884.

This was a civil action, tried, before Graves, Judge, at Spring Term, 1886, of Ashe Superior Court. The plaintiff, Jackson B. Hosh and Allen Parkins,-in the year 1855, formed and thereafter carried on: a mercantile co-partnership until its dissolution, in the spring of 1857. Allen Parkins died in 18.., leaving a will, which was duly proved, and the defendants appointed executors therein, who accepted the trust and undertook its discharge.

This was a petition for the laying out and establishing a new road, brought by appeal of the petitioners from the order of the board of county commissioners of Rutherford county, and heard before Shipp, Judge, at the Fall Term, 1885, of the Superior Court of said county.

This was a civil actioN, tried before Clark, Judge, at February Term, 1886, of Guilford Superior Court.

Civil action, tried on appeal from the judgment of a justice of the peace, at November Term, 1886, of Duplin Superior Court, before Clark, Judge. The plaintiff, as landlord, rented certain premises for farming purposes to one David Cameron, who subrented a part of the same to one John Newell. The plaintiff made certain advances to subtenant Newell, without the request and not at the instance of the tenant Cameron'.

<p>Execution against the Person — Arrest—Constitution—Seduction.</p> <p>1. It is the duty of the Clerk of the Court, upon the application of the plaintiff, to issue, in proper cases, the execution against the person, under §§442, 447 and 448 (3) of The Code.</p> <p>2. Such execution should command the sheriff to arrest the defendant and commit him to the jail of the county from which it issued, until he shall pay the judgment or be discharged according to law.</p> <p>3. Section 291 (2) of The Code, authorizing the arrest of a person in an action for seduction, is not in conflict with the provision of the Constitution prohibiting imprisonment for debt.</p> <p>{Moore v. Mullen, 77 N. C., 327; Hoover v. Palmer, 80 N. C., 313; Moore v. Creen, 73 N. C., 394; Long v. McLeod, 88 N. C., 3; Houston v. Walsh, 79 N. C., 35; and Peebles v. Foote, 83 N. C.. 102; cited and approved).</p>

This is a civil action, which was tried at Spring Term, 1886, of McDowell Superior Court, before Graves, Judge, upon referee’s report and exceptions. The facts upon which the present action depends are those set out in the case of Curtis’ heirs, reported in 82 N. C., 435, where a remedy was sought in a motion in the cause as originally constituted in the Court of Equity and re-instated on the docket of the Superior Court for that purpose. It is needless to restate them.

This is a civil action, which was tried before Avery, Judge, at October Term, 1886, of Mecklenburg Superior Court. The action was brought by the plaintiff, as assignee of a mortgage debt, to recover damages for the unlawful seizure and conversion of a stock of goods by the defendant, which the plaintiff alleges belonged to him by virtue of a mortgage made to secure the debt mentioned, and which was assigned to him by the mortgagee therein.

This was a civil action, tried before Avery, Judge, at February Term, 1886, of Union Superior Court. There was a verdict and judgment for the plaintiffs, from which the defendant appealed. The facts are sufficiently stated in the opinion of the Court.

This was a civil ACTION, tried before Avery, Judge, at February Term, 1886, of UNION Superior Court. There was judgment for the defendant, from which the plaintiffs appealed. The facts are the same as in the case of Hasty v. Simpson, 84 N. C., 590.

This was a civil ACTION, tried before Graves, Judge, at ¡Spring Term, 1886, of Watauga Superior Court. The plaintiffs are the heirs at law of John T. Jones and Walter L. Jones, who died intestate long before this action began, and as the plaintiffs allege, seized of the land described in the complaint, which, in that case, descended to them as such heirs.

<p>Contract — Part Performance — Quantum Meruit.</p> <p>1. When the terms of a contract are that the plaintiff shall build certain houses for the defendant, within a given time, for which he is to receive so much, he cannot recover anything, either upon the special contract, or upon a quantum meruit, unless he avers and Xiroves an entire performance.</p> <p>2. This rule is not altered by the fact that the jiroperfy was destroyed by accidental fire just before the work was comxileted.</p> <p>.3. If the defendant received anything by insurance on the proj)erty, the pilaintiff has no right to any jiart thereof.</p> <p>■{Brewer v. Tysor, 4 Jones, 180; and 5 Jones, 178, cited and api>roved).</p>

This was a civil actioN, tried on demurrer, before Montgomery, Judge, at February Term, 1887, of MeckleNburg Superior Court.

This was a civil action, tried before Ch'aves, Judge, at Spring Term, 1887, of Buncombe Superior Court. The trial by jury being waived, the Court found the facts .as follows: At the regular election, November, 1886, R. H. Cole received the highest number of votes, and was elected register of deeds, and was duly declared elected.

The plaintiffs allege, that in 1854, Jackson C. Lemmond and others, owners of the land in controversy, conveyed it for the consideration of $25,000, to Charles Judson and W. F. Durant, in fee, in trust for themselves and their associates. That in June, 1857, said trustees, for the consideration of $1.00, conveyed the said land to Robert Taylor, in fee, and on the same day, the said associates, for the consideration of $1.00, released their interest to said Taylor.

<p>Civil ACTION, pending in BuNCOMBE Superior Court, on appeal by defendant from judgment of nonsuit rendered by Montgomery, Judge, at Chambers, in McDowell county, on 15th day of October, 1886.</p> <p>The purpose of this action was to obtain relief by injunction.</p> <p>On the 25th of June, 1886, a Judge declined to grant a restraining order applied for. Afterwards, upon a like application, another Judge granted a restraining order and a rule upon the defendants to show cause in term time why an injunction should not be granted pending the action, and until the hearing upon the merits.</p> <p>Subsequently, at Chambers, the Judge vacated the restraining- order and denied the motion for an injunction. Afterwards, on the 15th of October, 1886, the plaintiff, out of term time, at Chambers, moved the Court to allow him voluntarily to submit to a judgment of nonsuit.</p> <p>The defendants resisted this motion, contending that the plaintiff had no right thus to be nonsuited, because one Judge had refused to grant a restraining order, and after-wards another Judge, having granted such order, had discharged it, and refused to grant the motion for an injunction pending the action. The Court allowed the motion, and judgment of nonsuit was granted. This was assigned as error by the defendants, and they appealed to this Court.</p>

This was a civil ACTION, tried before Avery, Judge, at Fall Term, 1886, of Haywood Superior Court. There was verdict and judgment for the plaintiff, from which the defendants appealed. The facts are sufficiently stated in the opinion of the Court.

This was a civil action, tried before Avery, Judge, atod' a jury, at Spring Term, 1886, of the Superior Court of Meck-lenburg county. The action was brought to recover damages for an injury to the person of the plaintiff, who was an employé of the defendant. The plaintiff, a witness in his own behalf, testified in substance, that he was employed to flag the trains, but was ordered by the yard-master, on the occasion when he was injured, to couple some cars.

Indictment, tried'before Philips, Judge, anda jury, at July-Term, 1886, of Wayne Superior Court.

Indictment, tried before Gilmer, Judge, and a jury, at August Term, 1886, of Robeson Superior Court. This was an indictment for entering the dwelling-house of one J. A. Hornaday in the night time, otherwise than by a burglarious breaking, to wit: through an open window, with a felonious intent.

This was a criminal action, tried before Graves, Judge, at Spring Term, 1886, of Mitchell Supérior Court. The defendant was charged with an assault and battery with a deadly weapon, upon one Mosely. The names of two witnesses were endorsed on the bill of indictment, with the further endorsement: “Those marked thus + sent by the .Solicitor, and sworn and examined by me, and this bill found- a true bill,” and signed by the foreman of the grand jury.

Indictment, heard before Meares, Judge, at February Term, 1886, of the Criminal Court of MecklenbuRG county. The defendant was indicted at the October Term, 1885, of the Criminal Court of the county of Mecklenburg, for the crime of larceny. Being under recognizance to answer in that behalf at that time, he appeared in person, having counsel present, and pleaded not guilty, and was put upon his trial.

MotioN by the defendant to be discharged from custody, heard upon- appeal from the clerk, by Shepherd, Judge, at February Term, 1887, of Wake Superior Court.

INDICTMENT on appeal from the mayor of the town of Morganton, tried before Graves, Judge, at Spring Term, 1886, of Burke Superior Court. The Court dismissed the proceeding for want of jurisdiction, from which the Solicitor appealed. The facts are sufficiently stated in the opinion of the Court.

Indictment, heard before Gilmer, Judge, at March Term, 1887, of Davidson Superior Court.

Indictment-for rape, beard before Graves, Judge, at September Term, 1886, of the Superior Court of Union county. The defendant appealed. The facts fully appear in the opinion.

Indictment for larcehy, tried before Ciarle, Judge, at June. Term, 1886, of GtjileoRD Superior Court. The defendant is indicted for the larceny of goods, taken from the person of the prosecutor, one Sherwood. There was evidence for the State, tending to prove the guilt of the defendant.

Indictment for removing a crop, tried before Clark, Judge,. and a jury, at January Term, 1887, of Anson Superior Court. There was a verdict of guilty, and the defendant appealed.. The facts appear in the opinion.

Indictment, tried before Graves, Judge, and a jury, at March Term, 1886, of Burke Superior Court. The defendant is indicted under the statute (The Code, §2709), for having unlawfully voted at the general election in November, 1884.

<p>Manslaughter — Police Officer.</p> <p>The law does not olotlie a police officer with authority to judge arbitrarily of the necessity of killing a prisoner to secure him, or of killing a person to prevent a rescue, and it must be left to the jury to pass on the necessity for such killing.</p> <p>(State v. Staleap, 3 Ired., 50; State v. MeNinch, 90 N. C., 696; State v. Pendergrass, 3D. & B., 365; cited and approved).</p>

This was an indictment for larceny of growing crops) tried before Gilmer, Judge, at September Term, 1886, of ANSON Superior Court.

This was a ceiminal action, tried before Graves, Judge, at Fall Term, 1886, of Lincoln Superior Court. The defendant was indicted for larceny of money, the property of one W. C. Putman. It was in evidence, that in August, 1886, the defendant was a servant in a hotel in the town of Lincolnton, and was discharged from service on the morning of the day on which money was taken from the trunk of Putman, in the hotel.

<p> Appeal. </p> <p>Where in. a criminal proceeding, the prisoner appealed from the judgment, which was affirmed by the Supreme Court, and upon receiving the certificate the Judge of the Superior Court passed the same sentence which had before been imposed, from which the defendant again appealed, but without assigning any error or showing any new facts, the appeal will be dismissed.</p> <p>{State v. Speafts, 95 N. C., 689; cited and approved).</p>

<p>Application for a writ of habeas corpus, heard before Gud-ger, Judge, at Chambers, in Warren ton, on September 24th 1886.</p> <p>After the defendant’s appeal to the Supreme Court was adversely decided, 94 N. C., 904, and the certificate received at July Term of Wake Superior Court, the same judgment as-before was pronounced, and the same punishment imposed for his offence. He has undergone the full term of imprisonment, and desiring to take the benefit of the act for the imprisonment of debtors, and intending to remain in imprisonment for the space of 20 days in order thereto, The Code §2967, he gave notice thereof to the sheriff, that he would at the expiration of the time make application to the Court to take the required oath. This he was prevented from doing, and instead of continuing in prison, was transferred to the custody of the superintendent of the work-house by direction of the county commissioners and there kept at hard labor until the 20 days had past. Thereupon he made his-application to the clerk for permission to file his schedule, surrender his property, and take the required oath, in order to be discharged from custody, and being refused, he sued out a writ of habeas corpus before a Judge holding a Court in an adjoining district, instead of bringing the ruling of the-clerk for review before the Judge then exercising the jurisdiction in the district to which the county belongs.</p> <p>Upon the hearing and upon the facts briefly stated, it was-adjudged that the clerk proceed to administer the oath, upon the prisoner’s complying with the requirements of. the statute; that he appoint a trustee to take charge of the property .surrendered, and dispose of the same in the manner pointed out in the order, and that upon taking such oath, the prisoner be discharged from further confinement. From this judgment the State appealed.</p>

Indictment, tried before Gilmer, Judge, and a jury, at September Term, 1886, of Richmond Superior Court. The defendant is charged with selling spirituous liquor to one Nathan Thomas, within five miles of Bethel Church, in the county of Richmond, in violation of §5, chapter 234, of the acts passed at the session of the General Assembly held in 1881, and upon his trial was found guilty, and adjudged to pay a fine of five dollars, at Fall Term, 1886.

This was an INDICTMENT for larceny, tried before Boy-kin, Judge, at September Term, 1886, of DavidsoN Superior Court. The defendant was charged with stealing a bay mare, the property of W. P. Brown, and the following is the case on appeal: “There was evidence that immediately after the larceny, the owner’s son was sent in search of the stolen mare by his father.

IndictMent for larceny and receiving stolen goods, tried before Clark, Judge, at February Term, 1886, of GuileoRD-Superior Court. The appellant and John Harris were indicted in a first count for the larceny of one peck of chestnuts, and in a second count for receiving the same knowing them to have been stolen. On the trial — the appellant alone was on trial — he was examined as a witness in his own behalf.

This was an indictment for perjury, tried before Boykin, Judge, at the February Term, 1887, of the Superior Court of Yadkin county. The case is sufficiently stated in the opinion of the Court.

INDICTMENT, heard before Montgomery, Judge, at Spring-Term, 1887, of LINCOLN Superior Court.

INDICTMENT for burglary, tried before Meares, Judge, and a jury, at November Term, 1886, of the Criminal Court of New Hanover county. The Court ordered a special venire of one hundred and twenty-five persons to be drawn and summoned in pursuance of the provisions of the act of the General Assembly prescribing how a special venire in capital cases should be drawn in the Criminal Court of New H anover county.

INDICTMENT, beard on a demurrer thereto by the defendants, by Meares, Judge, at November Term, 1886, of the Criminal Court of New Hanover county. The facts appear in the opinion. His Honor sustained the demurrer, and the State appealed.

<p>IndictmeNt, heard before Meares, Judge, at September Term, 1886, of the Criminal Court of New Hanover county.</p> <p>There was a verdict of guilty, and from the judgment thereon the defendant appealed.</p> <p>The facts appear in the opinion.</p>

This was an indictment, tried before Meares, Judge, at October Term, 1886, of the Criminal Court of Mecklenburg county. The defendant and one Sam. Dick were charged with stealing money from one Wm. Boyd, in 1886.

<p>Application for a certiorari as a substitute for an appeal from a judgment of Clark, Judge, at March Term, 1887, of Columbus Superior Court.</p>

INDICTMENT, tried before Montgomery, Judge, at January Term, 1887, of Catawba Superior Court. The defendant was a dealer in intoxicating liquors, and was indicted for giving one gill of such liquors to Daniel Brinkley, junior, an unmarried person, knowing him at the time to be under the age of twenty-one years. Pie pleaded not guilty.

Indictment, tried before Gilmer, Judge, and a jury, at November Term, 1886, of Cumberland Superior Court. The defendants were tried and convicted upon an indictment charging them with a forcible entry upon the premises ■of the prosecutor, P. N. Talbot, he being present and forbidding the same. It was in evidence that the defendants and two others were found by the prosecutor at work clearing off a ditch, which divided his field from that of the defendant G-.

<p>Indictment,, tried before Clark, Judge, and a jury, at Fall Term, 1886, of Onslow Superior Court.</p> <p>The facts appear in the opinion.</p>

INDICTMENT for murder, tried before Boykin, Judge, and a jury, at November Term, 1886, of Rowan Superior Court. There was a verdict of guilty, and from the judgment the prisoner appealed. The facts appear in the opinion.

Indictment, tried before Meares, Judge, and a jury, at February Term, 1887, of the Criminal Court of Mecklen-burg county.

Indictment for injury to live stock, tried before Shipp, Judge, and a jury, at Fall Term, 188G, of Hertford Superior Court.

Motion to tax costs, heard before Avery, Judge, at Chambers, in Morganton, on January 5th, 1886. It appears that E. W. Ray and W. A. Anderson were indicted in the Superior Court of the county of Mitchell for the crime of murder. The action was removed to the . Superior Court of the county of Caldwell for trial, which was there had. Ray was convicted of manslaughter, and Anderson of murder. Afterwards they escaped and fled the country.

INDICTMENT, heard before Philips, Judge, and a jury, at July Criminal Term, 1886, of Wake Superior Court. The defendant is charged with selling spirituous liquors in a township in which prohibition prevails, in violation of §3116 of The Code.