Volume 98 — North Carolina Reports

Civil aotion, tried before MucRae, Judge, at Chambers, in Oumbehland county, on the 18th day of June, 3887.

Civil action, ' tried before' Merrimon, Judge, at August Term, 1887, of Wake Superior Court. The plaintiff’s action is to recover from the defendant company the sum of $535.18, alleged to be due him as commissions on a premium paid by the Carolina Central Railroad Company on an insurance of its property by the defendant company, brought about by the plaintiff’s agency.

Civil ACTION, tried before MacRae, Judge, at November Term, 1885, of Cumberland Superior Court.

<p>Issues joined in a special proceeding-, tried before Boy-kin, Judge, at Spring Term, 1886, of Anson Superior Court.</p> <p>The plaintiffs allege that they are tenants in common with the Jeme defendant of the land described therein, and seek to have partition thereof, &c. The defendants deny the allegations of the petition, and allege that the feme defendant is sole seized of the land, &c.</p> <p>In selecting a jury to try the issues thus raised, the plaintiffs challenged a juror for cause, and assigned as cause that he had not paid tax for the year next preceding the time •when his name was selected and placed on the jury list by the county commissioners as proscribed by the statute (The Code, §§1722, 1723). It appeared that he had paid tax for the fiscal year 1884, but had not for the year 1885. The trial took place at the Spring Term of the Court of 1886. The challenge was overruled, and plaintiff excepted.</p> <p>On the trial the defendants put in evidence a deed purporting to have been executed on the 8th of October, 1855, upon the sufficiency of which it seems the title of the feme defendant depended. The parts thereof, and the certificates of probate and registration thereof necessary to a proper understanding of the errors assigned, and the opinion of the Court, are as follows :</p> <p>“In testimony whereof, the said Roland R. Sellers, and «Sarah Sellers, his wife, hath hereunto set their hands and seals, the day and date above written.</p> <p>R. R. SELLERS, [Seal.]</p> <p>SARAH + SELLERS, [Seal.]</p> <p>Signed, sealed and delivered in the presence of A. Little,</p> <p>J. T. Streater.</p> <p>NORTH CAROLINA, \ Court of Pleas akd Quarter ArsoN County. i Sessions — 'October Term, 1854.</p> <p>Then Rowland Sellers, and Sarah Sellers, his wife, appeared in open Court, and each acknowledged the due execution by them of the foregoing deed foi lands in this county, to Thomas Ratliff, for the sole and separate use of Martha Sellers, independent of her husband, Philip A. Sellers, and of all his marital rights, dated the 8th day of October, 1855; and thereupon, Stephen W. Cole, a member of the Court, is appointed to take the private examination of the said Sarah Sellers, who is a feme covert, and the said S. W. Cole, after having examined (privily) the said Sarah Sellers within the verge of said Court, separate and apart from her said husband Roland, R. Sellers, touching her free and voluntary consent in the execution of said deed of conveyance, reports to the Court that she acknowledged before him when so examined, that she had executed the said deed freely, of her own free will and accord, and without any force, fear or undue influence of her said husband, or other person, and that she now and still doth voluntarily assent thereto, All of which, on motion, is ordered to be recorded.</p> <p>S. W. COLE, M. 0.</p> <p>It is further ordered that the deed itself and the record of the above proceedings be registered.</p> <p>J. WHITE, Clerk."</p> <p>“State oe North Carolina,</p> <p>October 27th day, 1855.</p> <p>Then this deed came into my hands and was duly registered in the Register’s office in Anson county, in book No. 14, page 482.</p> <p>P. J. COPPEDGE, Register.</p> <p>State oe North Carolina,</p> <p>November 28th, 1885.</p> <p>Then this deed and certificate came into my hands and were duly registered in the Register’s office of Ans'on county in deed book No. 24, pages 270, 271 and 272.</p> <p>• P. J. COPPEDGE, Register of Deeds."</p> <p>“ The plaintiffs objected to the introduction of said deed on the following grounds:</p> <p>1. Because the deed could not have been registered without an order therefor from the clerk of the Superior Court, there being no evidence offered outside of the deed and certificate, and the registry thereof, of the official character of S. W. Cole, a member of the County Court, and of J. White, clerk of said Court.</p> <p>2. Because the probate was taken in 1854, while the deed shows its execution in 1855.</p> <p>3. Because the words “her mark” do not accompany the +.</p> <p>4. Because the register of deeds had no authority to add the word “ Seal ” to the registry after the name of Sarah Sellers, one of the alleged grantors, after the commencement of this action, the register of-deeds having put the seal to the name of Sarah Sellers on the registry at the request of defendants’ counsel. Objection overruled and plaintiffs excepted.”</p> <p>There was some question as to whether or not there was a seal affixed to the name of Sarah Sellers at the time she executed the deed, but the evidence went strongly to prove that there was, just as it now appears, and the jury must have so found and so accepted the fact to be.</p> <p>The deed was admitted; there was a verdict and judgment for the defendants, and the plaintiffs appealed.</p>

<p>Application made in an action in Cumberland Superior Court for a writ of mandamus, heard before MacRae, Judge, on complaint and demurrer, at Chambers, July 9th, 1886.</p> <p>The complaint alleges that the plaintiff is a duly licensed attorney and counsellor at law, and now engaged in the practice of his profession in the county of Cumberland.</p> <p>1st. That the defendant is, and was at the time of the acts complained of, the duly elected and qualified register of deeds for the county of Cumberland.</p> <p>3d. That plaintiff has in his hands for collection a large amount of claims against persons living in said county, and in order to serve the interests of his clients, it is necessary for him to keep well informed as to all transfers of property in said county, and to know the financial condition of all the debtors of his clients; and in order for him to do so, it is necessary for him to have knowledge of all the transfers of property in said county.</p> <p>4th. That on the 24th day of June, 1886, the plaintiff went to the office of defendant, and demanded access to such of the registration books for the year 1886 as the defendant was not in the actual use of, for the purpose of making an abstract of all chattel mortgages, deeds, mortgages on real estate and deeds of trust, stating the date of the deed or mortgage, names of the grantor or grantors, grantee or grantees, the kind of property transferred, and if a mortgage, for what amount and when due, which demand was refused by defendant, unless plaintiff would pay to him twenty cents for each chattel mortgage and eighty cents for each deed or mortgage of real estate.</p> <p>5th. That on same day plaintiff demanded of defendant access to Book 0, No. 3, for the purpose of making a copy of a deed recorded on page 423 of said book, which demand defendant denied plaintiff as a matter of right, but agreed to as a matter of courtesy to plaintiff.</p> <p>6th. That plaintiff desires to have a copy of said deed in his office for the purpose of bringing suit for the land conveyed in said deed.</p> <p>Wherefore the plaintiff prays:</p> <p>1st. That a writ of mandamus may be issued, commanding the defendant to allow plaintiff to make an abstract of all transfers of real and personal property for the year 1886.</p> <p>2nd. Commanding the defendant to allow plaintiff to make a copy of the deed recorded in Book 0, No. 3, page 423.</p> <p>The defendant moved to dismiss the action upon the ground that no cause of action is set out in the complaint, and the motion was considered in the nature of a demurrer ore tenus.</p> <p>The demurrer was sustained and the action dismissed, and from this the plaintiff appealed.</p>

This was an application for mandamus, made in an action in the Superior Court of Guilford county, and heard before Shepherd, Judge, at'September Term, 1887. The facts are fully stated in the opinion.

Issues joined in a special proceeding, tried before Philips, Judge, at September Term, 1887, of the Superior Court of New HaNOVeb, county.

<p>Corporations— Ultra Vires — Slander^IAbel—Malicious Prosecution — Tort—Master and Servant — Joinder of Parties.</p> <p>1. An action may be maintained against a corporation for torts — e. g., slander, libel and malicious prosecution — however foreign they may be to the objects of its creation or beyond its granted powers.</p> <p>2. And this liability extends to the tortious acts of its servants, done in its service.</p> <p>3. The corporation and its servant, by whose act the injury was done, may be joined in the action.</p> <p>4. Whether the. act was committed by the servant in the service of the corporation, or for his own irarpose, or the latter authorized or participated in it, ave questions of fact for the jury.</p>

<p>Civil action, originally commenced before a justice of the peace and carried by appeal to the Superior Court of Cumberland county, and tried before Boykin, Judge, at May Term, 1886, of said Court.</p> <p>The following is the statement of the case on appeal:</p> <p>The plaintiff was not a resident of the town of Fay-etteville. In the month of March, 1882, his hogs were found running at large in the town of Fayetteville. The defendant, R. W. Ilardie, was then the sheriff of Cumberland county, in which county Fayetteville is situated. After the pas-age of the law as embraced in Chapter 58, Private Laws 1881, the sheriff had appointed the defendant Goddard his deputy to enforce the provision thereof, which the sheriff was required to enforce. Goddard, as such deputy, had taken up and impounded in the common pound of the town the said hogs of the plaintiff so found running at large, at the time above specified, under the following ordinance of the town, which was introduced in evidence: “All hogs .and goats found running at large within the town shall and may be taken up and put in the pound, or other secure place provided by the town, by the town marshal, or any other person; and it shall be the duty of the town marshal to notify the owner of such hog or hogs, goat or goats, as soon as practicable, if known to him; and to advertise at the court-house, in the best manner he can, the hog or hogs, or goats, giving the ear marks or other distinguishing marks ; and if the owner call for the same within three days, prove his or her property therein, and pay for each hog or goat the sum of $1.00 as a penalty for suffering it to run at large, and also 50 cents for the marshal’s fee for impounding, and 10 cents a day for every day that the said hog or goat has remained in the pound, the same shall be delivered to such owner.”</p> <p>At that time, to-wit: in March or April, 1882, the town charter had been repealed by chapter 58, Private Laws 1881. There were do town officers. The defendant Goddard, as deputy, was acting under said chapter 58, Laws 1881. The said law of the General Assembly of 1881 was introduced in evidence. Chapter 66, Laws of 1811, was also read in evidence.</p> <p>The plaintiff paid the amount due under said ordinance, for permitting his said hogs to run at large within the limits of said town, under protest, contesting the right of the officer to so impound his hogs. The property was then delivered into his possession, and he instituted this action to recover the $7.00 so paid to the officer.</p> <p>The Court charged the jury that, under the provisions of said chapter 58, Laws 1881, under which the defendants attempted to justify, neither the sheriff nor his deputy could justify the impounding of plaintiff’s hogs, and that plaintiff was entitled to recover if they believed the evidence. Verdict and judgment for the plaintiff, and defendants appealed.</p>

<p>Agricultural Lien — Contract—Mortgage—Landlord and Tenant.</p> <p>1. An agricultural lien duly executed and registered takes precedence of a mortgage of prior date and registration, upop. the “crops” therein subjected, to the extent of the advances made.</p> <p>2. The lien of the landlord takes precedence of all liens.</p> <p>3. An agricultural lien and a mortgage may be created by the same instrument.</p> <p>4. The operations of a mortgage or agricultural lien in respect to crops is confined to crops then or about to be planted, and will not be extended further than those planted next after the execution of the instrument.</p> <p>(Patapseo Guano Co. v. McGee, 86 N. C., 350; O'Kelly v. Williams, 84 N. 0., 281; Dail v. Freeman, 92 N. C., 351; Robinson v. Ezzell, 72 N. C., 231; Cotton v. Willoughby, 83 N. G., 75; Harris v. Jones, Ibid., 317; Rawlings v. Hunt, 90 N. C., 270; cited and approved).</p>

Motion to vacate an attachment, heard before Boykin, Judge, at Spring Term, 1886, of ÁNSON Superior Court.

<p>App>eal— Continuance.</p> <p>The order of the Court directing the continuance of an action, upon suggestion of the death of a party — although not a necessary party— will not be reviewed upon appeal.</p> <p>{Austin v. Olarh, 70 N. C., 458; State v. Lindsay, 78 N. C., 499: Isler v. Dewey, 79 N. C., 1; States. Vann, 84 N. C.,‘722; Johnson v. Maxwell, 87 N. C., 18; cited and approved).</p>

Civil ACTION, tried before GlarJc, Judge, at November Term, 1886, of Duplin Superior Court, upon' exceptions to a Referee’s report. There was judgment for the plaintiff, from which defendants appealed. The plaintiff, John Ii.

Civil action, tried before Gilmer, Judge, at February Term, 1886, of Sampson Superior Court. Chester R. Vann died intestate in 1864, in the county of Sampson. At November Term, 1866, of the Court of Pleas and Quarter Sessions of that county, Wm. R. Peterson, one of the defendants, being the administrator, filed a petition for leave to sell the lands therein described for assets, alleging that the intestate had died seized and possessed thereof.

Civil ACTION, tried before Connor, Judge, at Spring Term, 1887, of the Superior Court of New HaNOver county. The complaint, in separate counts, is for the non-payment of two promissory notes, each in the sum of $3,333.91, made on the same day, May 8th, 1885, and maturing respectively on the 1st day of December and January following — executed by Mary E. Bridgers and John L. Bridgers to Robert R. Bridgers, and endorsed before becoming due to the plaintiff.

Civil action, tried before Philips, Judge, at Spring Term, 1887, of Granville Superior Court.

This was an appeal from an order made by Shepherd, Judge> at Chambers in Hillsboro, on the 12th day of August, 1887, dissolving a… Held: “ and if a majority of the votes cast shall be in favor of such tax, the same shall be levied and collected by the town authorities, under the same rules and regulations under which other town taxes are levied and collected,” &c. The plaintiff, who is a tax payer of the town of Durham, alleges that this act is unconstitutional upon…

<p>Amendment— Counter claim — Deceit—Pleading— Warranty.</p> <p>1. The Court in which an action is pending has the power, and it is its duty, to require any pleading- to be amended so as to make it plain, definite and certain.</p> <p>2. To sustain an action for deceit three thing-s are essential: (1.) That the representation was false; (2) that the party making it knew it to be false; and (3) that the purchaser was thereby deceived.</p> <p>3. The positive representation by a vendor that the article sold possesses a certain value, amounts to a warranty, though he may not have known such representation to be false; and in an action to recover the price stipulated, the vendee may, by counter-claim, set the breach of the warranty and reduce the sum claimed by the difference between the contract price and the actual value, though there was no deceit in the sale.</p> <p>(Johnson v. Finch. 93 N. 0., 205; McElioee v. Blackwell, 94 N. C., 261; Howe v. Rea, 70 N. C., 559; Thompson v. Tate, 1 Mur., 97; Ingel v. Bond, 3 Hawks, 101; Foggert v. Blaekmuller, 4 Ired., 238; Bellv. Jeffreys, 13 Ired., 350; Henson v. King, 3 Jones, 419; Lewis v. Roun-tree, 78 N. C., 323; Baum v. Stevens, 2 Ired., 411; cited and approved; and Lunn-v. Shermer, 93 N. C., 168, approved and distinguished).</p>

The plaintiff, a resident and citizen of Lenoir county, claiming title to a stock of goods in Asheville, Buncombe county, under an assignment from J. J. Desmond, a merchant doing business in said town, brings this action in the Superior Court of Lenoir, against the' defendants as aiders and abettors of J. R. Rich, sheriff of Buncombe, to recover damages for the seizure and conversion of said goods.

This was a motion by defendants to remove the case for trial to Buncombe county, under §§ 191 and 195 of The Code, heard before Clark, Judge, at Pall Term, 1886, of Le-NOiR Superior Court. The facts were, that J. J. Desmond, a merchant in Ashe-ville, had made an assignment of his stock of goods to the plaintiff to secure certain debts.

<p>Sale — Delivery—Vendor and Vendee.</p> <p>S, residing in North Carolina, being indebted to C, residing in Virginia, for goods sold, applied for further credit, which was refused unless he paid the account then due. Thereupon he executed to C a bill of sale for five hundred cords of wood, then at a point designated on the line of a railroad a hundred miles distant, being all the wood he had there, at a fixed price per cord. The sum realized to be placed to the credit of his account when C should sell the same. Thereupon C gave credit to S for “500 cords of wood, more or less, at $1.25 per cord.” Subsequently S made an assignment of the wood in trust for his creditors; Held, that the transaction with C was an absolute sale, and no title passed to the trustee by virtue of the subsequent assignment.</p> <p>(Wittkowsky v. Wassen, 71 N. C., 451; cited and approved).</p>

<p>This was a summary proceeding begun before the Clerk of the Superior Court of the county of Richmond, as allowed by the statute, {The Code, §1804,) to enforce a lien upon the crops described in the warrant, for advances made, &c. After the warrant had been issued, and the sheriff had seized the crops and delivered the same to the plaintiffs, upon motion of defendant, the clerk dismissed the proceeding, upon the ground that the instrument upon which the plaintiffs founded their proceeding was not such lien, but a chattel mortgage. The plaintiffs appealed from • the order of dismissal to the Judge at Chambers, who reversed the same, and gave judgment for the plaintiffs, from which the defendant appealed to this Court.</p>

<p>Civil actioN, tried before Philips, Judge, at August Term, 1887, of Lenoir Superior Court.</p> <p>The action, commenced on December 15th, 1885, by the plaintiff, assignee of Robert H. Rountree, is to recover the amount due on the single bond of the defendant, as set out in the original complaint, and which became due on December 22d, 1875, subject to certain specified credits. The defendant answered, admitting the making of the bond, the partial payment mentioned, adding others, to which he claims to be entitled as set-offs, denying the alleged transfer to the plaintiffs, and setting up as a defence to the action, an averment in general terms that the “ bond was executed by this defendant to the said R. H. Rountree for an illegal and usurious consideration.” Thereupon the complaint was amended, and as drawn, sots out the original consideration as a balance due on a running account between the defendant and R. H. Rountree and Lewis Webb, bankers and commission merchants, doing business in the partnership name of Rountree & Webb, at Newbern, in this State; the giving two promissory notes therefor, and the renewal of them; the dissolution of the firm, and the giving separate notes or bonds to each retiring partner for one moiety of what was due, the total being $871.11, and the renewal of the note given to the said Rountree — less certain credits— in the execution of the bond described in the first complaint, which was assigned to the plaintiff.</p> <p>Judgment was demanded for the sums due on the several ■causes of action mentioned, with costs accruing thereon.</p> <p>The answer to the amended complaint, and the first seven articles thereof, reiterates and adopts the allegations contained in the first answer, and further alleges as a defence t: that it appears from the original and amended complaint in the action, that the plaintiff, at the commencement of the action, was the assignee of no legal or equitable claim against the defendant, except the note referred to in the original complaint.” To this answer the plaintiff demurs, and assigns as ground thereof that:</p> <p>(1.) It fails to state what the illegal and usurious consideration and agreement were, its terms, and the nature of usury, &c.</p> <p>(2.) It does not state the facts from 'which the Court can see and decide whether there was any illegal or usurious consideration, nor is there any statement of facts, but merely conclusions of law.</p> <p>(3.) For the insufficiency in not stating facts sufficient to constitute a defence.</p> <p>Upon the issue thus joined between the parties, the Court proceeded to consider the same, and entered up the following judgment:</p> <p>“ This cause coming on to be heard, and being heard upon the demurrer of the plaintiff to the answer of the defendant, it is ordered and adjudged by the Court, that in the present state of the pleadings, the defendant relying upon his answer, which does not set out the facts and particulars showing usurious transactions and agreements which entitle him to relief, the demurrer to the answer is sustained.</p> <p>“ It further appearing to the Court, that the defendant admits the ownership of the note by the plaintiff, and its execution and delivery by the defendant, and the plaintiff admitting the payments on the note as alleged in the answer of the defendant—</p> <p>“It is further ordered by the Court, that upon the admissions of the parties in open Court, and the pleadings in the cause, that the plaintiff, George Rountree, recover of the defendant, W. G. Brinson, the sum of $462.85, with interest thereon from December 21st, 1875, at 8 per cent, till paid, subject to a credit of twenty-five dollars November 15th,, 1885, another credit $25, another credit $25, and another credit for' $15, and for the costs of this action.”</p> <p>Prom which the defendant appealed.</p>

Civil action, tried before Connor, Judge, at Fail Term, 1885, of Pitt Superior Court. There was a verdict and judgment in favor of the defendant Whitehead, from which the plaintiff appealed.

<p>This was a petition for recordari, heard upon notice to the plaintiffs, before Philips, Judge, at Chambers, in Roxboro, in the county of Person, on the 3d day of May, 1887.</p> <p>The appellant applied by petition to a Judge at Chambers for writs of recordari and supersedeas, and gave notice of such .application to the counsel of the appellees. Neither the latter nor their counsel appeared before the Judge at the time and place designated in the notice. The Judge, however, then and there proceeded to hear the application upon the merits, and directed the writ of recordari to be issued by the clerk of the Superior Court of the county of Granville, requiring the proceedings before a justice of the peace in that county, in the case of J. R. Barnes & Co., plaintiffs, against Bailie S. Easton, defendant, to be brought into the said Superior Court, at the Spring Term thereof of 1887, and also directed the writ of supersedeas to be issued as prayed for, and also requiring the petitioner to give proper undertakings, &c., in that behalf.</p> <p>In pursuance of such orders, the writs named'were issued, and the proceedings in the case mentioned were duly certified and sent into the Superior Court mentioned, and there docketed.</p> <p>At the term of that Court mentioned, the counsel of the • appellees, who are the plaintiffs in the case above named, moved the Court to allow them to oppose the appellant’s said application, and to file affidavits, &c., in opposition thereto, which motion the Court granted, the appellants objecting and excepting.</p> <p>The Court allowed the application to be opened, affidavits to be filed, heard the application over, and gave judgment dismissing the same. The appellant, having excepted, appealed to this Court.</p>

Civil action, for the recovery of land, tried before Sheppard, Judge, at the February Term, 1887, of Wake Superior Court. The plaintiffs are the heirs-at-law of one R. L. Allen, deceased, and as such claims the land in dispute. The defendant claims under a deed executed to him by said R. L. Allen in November, 1879.

This is a civil action, which was tried before Merrimon, Judge, at August Term, 1887, of Wake Superior Court.

<p>Mandamus — Jurisdiction.</p> <p>1. In an application for a writ of mandamus to enforce the payment of a money demand, the summons must be returned to term time, and the cause conducted as in civil actions.</p> <p>2. In applications for the writ to enforce other demands, the summons shall be returned before the Judge at Chambers, who may hear and determine both the law and the facts.</p> <p>3. Want of jurisdiction cannot be waived, and may be taken advantage of at any stage of the action. The Code, §623.</p> <p>(Belmont v. Reily, 71 N. C., 260; Steeles. Com’rs, 70 N. C., 137; Tucker v. Baker, 86 N. C., 1; Froelich v. Express Co., 67 N. C., 1; State v. Benthall, 82 N. C., 664; Long v. Jarratt, 94 N. C., 443; cited and approved).</p>

This is a civil action which was tried before Shepherd, Judge at August Term, 1887, of OraNGB Superior Court.

. This was an issue of devisavit vel non, tried before Philips, Judge, at Spring Term, 1887, of Durham Superior Court. There was a verdict and judgment in favor of the defendants, establishing the lost will of October, 1886, from which plaintiffs appealed. The facts are fully stated in the opinion.

Civil action, tried before Merrimon, Judge, at June Term, 1887, of Pitt Superior Court. v The plaintiffs sue to recover the money alleged to be due to the feme plaintiff upon the policy of insurance of the defendant, made to her as specified in the complaint, which contains among other provisions, conditions and stipulations, a clause in these words: “ Or if there shall be any other insurance, whether valid or otherwise, on the property insured, or any part thereof at the…

This is a civil ACTION, originally commenced before a justice of the peace, by summons issued the 10th day of September, 1883, to recover the sum of two hundred dollars, upon the following paper,… Held: “ 1. That the plaintiff’s cause of action accrued more than three years before the commencement of the action, and is barred by the statute of limitations. 2.

<p>Appeal — Assignment of Error.</p> <p>When the case on appeal does not show that exceptions were made, nor that errors were assigned, and none are apparent in the record, the Supreme Court will affirm the judgment below.</p>

Civil action, tried before Shepherd, Judge, at Spring Term, 1887, of Johnston Superior Court.

Civil actioN, removed from Randolph county, and tried before Connor, Judge, at December Term, 1886, of Guilford Superior Court. The complaint states that the tract of land in possession of the defendant, Daniel B. Branson, and demanded in the action, formally belonged to his wife, and was, under proceedings instituted in the proper Court, sold under a decree foreclosing a mortgage thereof made by them, and conveyed to the plaintiff.

This is a civil ACTION, which was tried before Philips, Judge, at June Term, 1886, of Pitt Superior Court. There was judgment for the plaintiff, and the defendant appealed. At February Term, 1887, of the Supreme Court, the appellant made an application for the writ of certiorari, in aid of its appeal. The Court then delivered the following opinion:

Civil ACTION tried before Clark, Judge, at January Term, 1887, -of Granville Superior Court. It appeared that John R. Perry died intestate in the county of Granville, sometime in the year 1864, leaving surviving him as his only heir at law the feme defendant, then an infant of tender years, who has since intermarried with her co-defendant.

<p>Dower — Evidence—Lost Record — Possession.</p> <p>1. Secondary evidence will be admitted to show the contents of a lost or destroyed record.</p> <p>2. The petition and writ of dower endorsed “executed,” is evidence to be submitted to the jury, in connection with other facts dehors the record, in determining an issue whether dowfer had been assigned, proof having been offered tending to show that the remaining part of the record had been destroyed.</p> <p>3. The acts and declarations of persons in possession of land, and of those under whom they claim, are admissable against them to show the circumstances under which they entered, and in explanation of the estate claimed by them.</p> <p>4. The fact that a widow resided on the land of her husband for sometime after his death, and that others who entered under her spoke-of and claimed it as her “ dower,” is evidence, in connection with other circumstances, to be considered by the jury in ascertaining if the dower had been actually allotted.</p> <p>i(Mobley v. Watts, ante, and Nelson v. Whitfield, 82 N. C., 46, cited and approved).</p>

Civil action, tried before Shepherd, Judge, at April Term, 1887, of Wake Superior Court. This action was begun on the 29th day of December, 1881, to recover the balance due on the single bond of W. W. Clements and A. K. Clements for the sum of $900, dated the 28th day of October, 1857, and due one day from date, made payable to G. H. Alford, and by him endorsed on the 30th of August, 1858, to the testator of the plaintiff.

Civil ACTION, tried before Shepherd. Judge, at Spring Term, 1887, of JOHNSTON Superior Court.

Civil action, tried before Shepherd, Judge, at- January Term, 1887, of Wayne Superior Court.

<p>Estoppel — Purchaser—Judicial Sale — Administration—Lien.</p> <p>1. A creditor having a specific lien upon the real property of a deceased debtor, and who has been made a party to a proper proceeding by the personal representative to sell such lands to make assets, is estopped from enforcing his lien against a purchaser at a sale made under a decree in such proceedings.</p> <p>2. A purchaser under a decree to sell land for assets is not required to see that the money arising therefrom is properly administered.</p> <p>3. Purchasers at judicial sales are only required to see that the Court has jurisdiction and the judgment authorizes the sale; and they will be protected against the errors and irregularities of the Court, and laches of the parties which they cannot see.</p> <p>{England v. Garner, 90 N. C., 199; Fowler v. Poor, 93 N. C.,466; Edney v. Edney, 80 N. C., 81; Shields v. Allen, 77 N. C., 375; Hunt v. Bank, 2 Dev. Eq., 60, and Whitted v. Nash, 66 N. C., 590, cited and approved).</p>

<p>This is a civil ACTION, which was tried before Shepherd, Judge, at Fall Term, 1886, of Pitt Superior Court.</p> <p>On the trial the plaintiff put in evidence a deed from Jeremiah Worthington, administrator of Susan Worthington, deceased, dated January 28th, 1877, which recited that the administrator was “ licensed and empowered to sell and convey the real estate of said deceased hereinafter described;” that he did sell by public auction the real estate of the said deceased hereinafter described, &c., and the land is therein described as “ all that tract or parcel of land situate in said county and bounded as follows: Adjoining the lands of Augustus Braxton, James Hines, T. N. Manning, Caleb Tripp and others, containing three hundred and sixty acres, more or less,” &c.</p> <p>The plaintiff further offered parol evidence to prove that the land thus mentioned and described was “ bounded by the lands of Augustus Braxton on the west, -James Hines on the north, T. N. Manning on the east, and Caleb Tripp on the south, and by the lands of one Dail, and of the heirs of one Elias Blount, at other points; and then offered the deed as evidence, and witnesses to prove these facts, and that the description in said deed fitted the lands claimed by the plaintiff and described in the complaint, and no other tract in the county, and that they knew the land by this description; also that Susan died seized of no other land in the county. Testimony and deed objected to by defendant. Objection overruled and testimony received and defendant excepted.</p> <p>The plaintiff also offered in evidence the record of special proceedings under which Jeremiah Worthington, administrator of Susan Worthington, obtained authority to sell her land. Objected to by defendant, because the same was irregular and void, in that the summons was issued and returnable in ten days after service instead of twenty days, and that the order of sale was made two days before the return-day named in the summons; that no notice of confirmation of sale was given, and that the decree of confirmation was made on the day of sale; that the guardian ad litem was appointed without inquiry as to his fitness on notice of his appointment; that there was no answer or appearance in the action by any of the defendants of age. The Court overruled the objection and the defendant excepted. ■</p> <p>The defendant contended and requested the Judge to declare, that the deed from Jeremiah Worthington, administrator of Susan Worthington, to the plaintiff, was void for want of authority to sell the land, which the Judge refused to do, and the defendant excepted.</p> <p>The plaintiff having closed his case, the defendant offered-in evidence a deed from Andrew Worthington and his wife Susan, to Elizabeth Butts, dated January 1, 1870. It was objected by the plaintiff that the description of the land attempted to be conveyed was too vague and uncertain.</p> <p>The testimony of witnesses showed that the John Tripp land consisted of one tract of fifteen acres, one tract of one hundred and sixty acres, which together were known as the John Tripp land, included in the allotment by the commissioners to Susan Worthington, and there was no evidence showing that any particular portion of the John Tripp land was known as a part of the John Tripp land.</p> <p>The defendant offered to prove that said Jno. Tripp tract of land adjoined on the west the land known as Willis Weatherington’s, and on the north by the lands of Richard H. Butts.</p> <p>Upon this evidence his Honor held that the description of the land attempted to be conveyed by this deed was too indefinite and conveyed no title and the defendant excepted</p> <p>The last mentioned deed described the land therein mentioned as “ all that tract or parcel of land lying and being in the county of Pitt and State of North Carolina, known as a part'of the John Tripp land, adjoining the lands of Richard Butts, Willis Worthington and others, containing one hundred acres.”</p> <p>There was judgment for the plaintiff and the defendant appealed.</p>

Civil actioN tried before Shipp, Judge, at May Term, 1887, of- Halifax Superior Court. There was judgment for the plaintiffs, and defendant appealed.

Civil actioN, tried before Merrimon, Judge, at May Term, 1887, of VaNCE Superior Court. The plaintiff claimed certain property mentioned in the pleadings, under a deed of trust, executed by Robinson & Holt, to H. T. Watkins, dated March 17th, 1886, and a bill of sale from the said trustee, and Robinson & Holt, tp himself, dated March 19th, 1886.

<p>Appeal — Exception—Homestead and Exceptions — Issues of Fact — Trial by Jury.</p> <p>1. An order of the Court setting aside the allotment of a homestead, is not an order to which an exception may he made and reserved for the final hearing, but is one from which an appeal may be at once prosecuted.</p> <p>2. The omission of appraisers to insert in their report the date of allotment is not sufficient ground for vacating it.</p> <p>3. Questions of fact arising in the allotment of property exempt from execution are not such “ issues of fact” as entitle the parties to a trial by jury.</p> <p>4. Where the debtor designated the particular land which he desires to have allotted him as “an increase of exemption,” (under ch. 347, laws 1885,) and the creditors assent thereto, neither party can demand that the property shall be valued by a jury.</p> <p>(■Carr v. Askew, 94 N. 0., 194, cited and approved, and Hines v. Hines, 84 N. 0., 122, cited, distinguished and approved).</p>

MotioN, heard by Merrimon, Judge, at February Term, 1887, of the Superior Court of Wilson county. The appellant, C. F. Griffin, was on the 31st day of July, 1886, adjudged to he in contempt for disobeying an injunction issued in the case Oreen et al. v. Griffin et al, then pending in that Court, and ordered to pay a fine of two hundred and fifty dollars. From this judgment he appealed to the Supreme Court, where the judgment was affirmed. See 95 N. C. Rep., 50.

This is a Civil action for an injunction, heard by Philips, Judge, in Chambers, at Tarboro, on June 22d, 1887.

This is a civil action and was tried before Merrimon, Judge, at Spring Term,' 1887, of Pitt Superior Court. The action was instituted against E. C. Yellowly, the executor of L. B. Beardsley, the father and guardian of the feme plaintiff, for a balance alleged to be due upon settlement and for an account.

This was a special proceeding, heard by Shipp, Judge, upon exceptions to report at Fall Term, 1886, of Pasouo-taNK Superior Court. There was judgment for defendants and plaintiffs appealed. George W. Charles, residing in Pasquotank county, died in the year 1877, leaving a will which has been admitted to probate, and appointing therein as sole executrix the plaintiff Fanny, who afterwards intermarried with the plaintiff Sanderson.

Civil actiox, tried before Avery, Judge, at June Term, 18S7, of Beaujíobt Superior Court, for an alleged breach of warranty and damages therefor. The plaintiff offered in evidence a deed from D. H. Latham (the defendant) and Harriet L. Latham, his wife, dated December 22d, .1875, duly executed, proved and registered, conveying the land therein described to the plaintiff in fee, with warranty of title.

Civil actioN, tried before Avery, Judge, at June Term, 1887, of the Superior Court of PasquotANK county. In August, 1883, the plaintiff and his wife Emily borrowed of the defendant Meekins $2,500, and at the same time executed their notes amounting to $2,772 (the same set out in the complaint), which were secured by mortgage upon the lands of Emily, containing power of sale.

This is a Civil ACTION, which was tiled before Avery, Judge, at Spring Term, 1887, of PasquotaNK Superior Court.

<p>New Trial — Petition to Rehear.</p> <p>While the Supreme Court may grant a new trial for newly discovered evidence, and will grant a rehearing because of error in law committed by it, or when it is made to appear that it has overlooked or misapprehended some material fact apparent in the record, it will not do so for any error or mistake of fact, nor error of law not assigned in the case on appeal.</p> <p>(McDonald y.•Carson, 95 N. C., 377; Mason v. Pelletier, 80 N. C., 66; Wilson v. Lineberger, 90, N. C., 180; Lockhart v. Bell, Ibid., 502; Bancroft v. Roberts, 92 N. C., 249; cited and approved;.</p>

This was an issue in a civil action, tried before Shipp, Judge, at Spring Term, 1887, of Halifax Superior Court.

This is a civil action,- which was tried before Avery, Judge, at Spring Term, 1887, of HeRtfoud Superior Court. There was judgment for the defendant and plaintiff appealed. The facts are stated in the opinion.

Civil ACTION, tried before Avery, Judge, at Spring Term, 1887, of Currituck Superior Court. One A. B. Williams, conducting a mercantile business at Poplar Branch, in Currituck county, in February, 1885, sold his remaining stock of goods to the plaintiff, then just become of age, and who had been for three years preceding in his service as clerk, at the price of three thousand three hundred and fifty dollars.

Civil ACTION, tried before Avery, Judge, at Spring Term, 1887, of Beaufort Superior Court.

Civil ACTION, tried before Avery, Judge, at Spring Term, 1887, of the Superior Court of Hertford.

This action was tried before Shipp; Judge, at Spring Term, 1887, of Halifax Superior Court. There was judgment for the plaintiff, from which the defendant appealed. The facts are sufficiently stated in the opinion.

<p>Appeal — Evidence—Lost Records — Nonsuit.</p> <p>1. Parol evidence is admissible to prove the contents of lost or destroyed records. The statutory method of restoring such records, The Code, §55 et seq., does not have the effect to exclude such proof.</p> <p>2. Whenever, in the progress of a trial, the plaintiff offers evidence to prove facts necessary to establish his case, and it is excluded by the Court, he may voluntarily submit to a nonsuit and appeal, and have the ruling reviewed.</p> <p>(Foster v. Woodfin, 65 N. C.,29; State v. MeAlpin, 4 Ired., 140; Wade v. Odeneal, 3 Dev., 423; Drake v. Merrill, 2 Jones, 368; Sutton v. Westeott, 3 Jones, 283; Barwickv. Wood, Ibid., 306; Spencer v. Cohoon, ID. & B., 27, and 4 Dev., 226, and Hedrick v. Pratt, 94 N. C., 101, distinguished and approved. Dail v. Sugg, 85 N. C., 104; Yount v. Miller, 91 N. C., 336: Steivartv. Fitzgerald, 2Murph., 255; Nelson v. Whitfield, 82 N. C., 46; Graham v. Tate, 77 N. C., 120, approved, and Hargett v., 2 Hay., 76 (243), overruled).</p> <p>Note. — The same point was presented and determined in like manner in Robertson v. Council, from Martin county, at the present Term.— Reporter.</p>

Civil action, tried before Shipp, Judge, at Spring Term, 1887, of GraveN Superior Court. The plaintiff testified that during the year 1885, and since} he was doing business in Richmond, Va., as dealer in leaf tobacco for rhe manufacturing of cigars, and that during said time the defendant was doing business in New Berné, N. C., that on or about the 28th of November, 1885, he received from defendant a postal card, as follows: “ New Berne, Nov. 27, ’85.

Civil action tried at February Term, 1886, of Richmond' Superior Court, before JBoylcin, Judge. This was a claim and delivery proceeding, in which the plaintiff alleged that he was the owner of a certain horse and other personal property.

Civil action, tried before Clark, Judge, at January Term, 1887, of RobesoN Superior Court.

Issues joined in a Special Poceeding, tried before Ciarle, Judge, at February Term, 1887, of Richmond Superior Court. In tliis action, begun before the Clerk for partition of the tract of land described in this petition, the petitioners alleged that they were tenants in. common with the defendant, each being entitled to one-fifth part thereof. ■ Tim defendant denied the alleged tenancy, and asserted a sole seizin in himself.

Civil action, tried before Gilmer, Judge, at Spring Term, 1887, of Stanly Superior Court. This action was brought against Drake and his wife, the feme defendant, to recover the possession of certain personal property — furniture—mentioned and described in the complaint. The defendant Andrews suggested to the Court that he was the owner of the property mentioned, and upon proper application, was made a party defendant, and in his answer set up his title to the property.

Civil action, tried before Gilmer, Judge, at Pall Term, 1886, of ÁNSON Superior Court. This action was brought to recover the price which it was Alleged the intestate of the defendant had agreed to pay plaintiff for certain notes (given by one Preslar, a son-in-law of the intestate, for the purchase of-a tract of land) and which had been delivered, unindorsed to the intestate.

Civil actioN, heard by Philips, Judge, at Fall Term, 1887, of PENDER Superior Court. From the judgment of the Court dismissing the action the plaintiff appealed. The complaint alleges title in the plaintiff to an easement or right of draining the excessive waters upon his own lands through a ditch opened upon the defendants’ adjacent lands into a canal used by them in common as a means of directing the overflow and relieving both tracts. The canal is also on defendants’ land.

<p>This is a civil ACTION, which was tried, on appeal from a justice of the peace, before Montgomery, Judge, at Fall Term, 1887, of Haywood Superior Court.</p> <p>The plaintiff alleged:</p> <p>1st. That during 1886, he furnished lumber to be used in constructing a house in the town of Waynesville, on a lot belonging to Mrs Mary F. Luke.</p> <p>2d. That said lumber was furnished to A. L. Melton, who was contractor for erecting said house.</p> <p>3d. That a portion of the price of the said lumber was paid to plaintiff, but that there now -remained due the sum of $54.91, with interest from April 30th, 1886.</p> <p>4th. That on or about the 19th day of July, 1886, the defendant, for and on the part of the firm of Williams & Buchanan, (of which firm the defendant was a member,) contracted with the said Mary P. Luke, for valuable consideration, that they, said Williams & Buchanan, would pay off and discharge “all liens and incumbrances whatever” upon the said property.</p> <p>5th. The plaintiff had a lien on the said house and lot for the material-(lumber) furnished as aforesaid to the said contractor, registered in the office of the clerk of the Superior Court of Haywood county, and filed therein on the 27th day of December, 1886.</p> <p>6th. That due notice of plaintiff’s claim was given to said Mary F. Luke before settlement with said Melton for said building.</p> <p>He demanded judgment against the defendant for the balance alleged to be due.</p> <p>The defendant made a general denial.</p> <p>The plaintiff offered in evidence the following agreement:</p> <p>Memoranda of agreement between Geo. W. Williams, on the part of Williams & Buchanan, and Mrs. Mary F. Luke, all of the town of Waynesville, N. C.:</p> <p>Mrs. Mary F. Luke agrees to make a promissory note for eight hundred dollars ($800.00), payable one year after date and bearing interest at the rate of 10 per cent, per annum, secured by mortgage on certain property of Mrs. Mary F. Luke, in the town of Waynesville, N. C., said note payable to the order of Williams & Buchanan, on this condition, that said Williams & Buchanan shall receipt and deliver all bills and accounts now due them by Mrs. Mary F. Luke, and pay over to her in cash all balance between the amount of their said bills and accounts and the face value of said note, and surrender to the said Mrs. Mary F. Luke full and free possession of the house lately erected on the lot of Mrs. Mary F. Luke, in the town of Waynesville, N. C., free from all liens and encumbrances whatever. Mrs. Mary F. Luke reserves to herself the right to redeem said note at any time before maturity, by payment of the face of said note, with the accrued interest. Mrs. Mary F. Luke further agrees to place an insurance of ($1,200) twelve hundred dollars upon the said property, for the term of three years, assignable to said' Williams & Buchanan, as further security on said note. In case the said note is paid before or at maturity, the insurance is to be transferred to Mrs. Mary F. Luke, for her sole benefit, and subject to her own disposal.</p> <p>Witness, our hands, this 19th day of July, 1886.</p> <p>The plaintiff offered evidence tending to prove his allegations, and that the defendant had in his hands funds of Mrs. Luke, which should be applied to the payment of his claim.</p> <p>There was evidence on the part of defendant that at the time he had notice of the plaintiff’s claim, he had paid the contractor, in full, for building the house, and that he had no funds of Mrs. Luke to pay this debt.</p> <p>The Court instructed the jury that they would ascertain from the evidence whether the plaintiff had furnished the lumber and material, and if so, they would ascertain what was its value or price, and whether the plaintiff had been paid for the same; and if they found that plaintiff had furnished the lumber and had not been paid for it, then they would ascertain whether he had given notice of his lien, and if they found this in plaintiff’s favor, they would find whether the defendant had funds sufficient in his hands, of Mrs. Luke’s, for the purpose of paying this debt, and had contracted with her to pay it; and if they found that he had such funds sufficient in amount, and had contracted with her to pay it, they would, in answer to the issue, say how much was due to the plaintiff from the defendant.</p> <p>The defendant’s counsel moved to dismiss the action, because the complaint did not state a cause of action against the defendant, which was refused by the Court, and the defendant excepted.</p> <p>There was a verdict and judgment for plaintiff, and defendant appealed.</p>

This was a proceeding to have certain lands processioned, heard upon exceptions to the report of a jury of freeholders. The clerk confirmed the report, from which the defendants appealed, and the appeal was tried before Gilmer, Judge, at Pall Term, 1886, of Brunswick Superior Court, when the judgment of the clerk was affirmed. Thereupon the defendants appealed to the Supreme Court. The facts necessary to an understanding of the case are fully stated in the opinion

<p>This is a civil ACTION, which was tried before Clark, Judge,. at January Term, 1887, of RobesoN Superior Court.</p> <p>There was judgment against all the plaintiffs (except McNeill and wife Caroline), from which they appealed; and the jury, under instructions from the Court, having found that the said Caroline was not barred of her right to recover, the Court directed a reference to ascertain the amount to which she was entitled, and from this order the defendants appealed.</p> <p>In the year 1855 James P. Hodges became the guardian of the plaintiffs, then infants, and executed his bond with Henry Elliot and Archibald S. McKay, his sureties, in the form and with the conditions prescribed by law for the security of their several estates. Archibald S. McKay died intestate in 1865, and no administrator on his estate was appointed until. March 17th, 1879, when letters issued to the defendant, John McNair. The other defendants are the heirs-at-law of the-said Archibald S., to whom certain lands are alleged to have-descended from him.</p> <p>The plaintiffs severally arrived at full age, as follows:. Mary L. Williams, on June 11, 1859; J. L. Smith, on January 26, 1866; S. C. Robinson, on July 13, 1868, and Caroline, who intermarried with the plaintiff, Thomas A. McNeill,, on February 8th, 1871. There has been no settlement by •either with the guardian, who is still living, nor did it appear that any one of the wards within three years after attaining majority, by suit or otherwise, called on him “for a Jull settlement of his guardianship,” by suit or otherwise, in pursuance of §4, ch. 65, of the Revised Code.</p> <p>The present suit, instituted on July 26th, 1881, by the plaintiffs, on behalf of themselves and all other creditors of said Archibald S., has for its object the subjection of the lands which he owned at his death to the payment of his indebtedness; and to the demand, among other defences to the action, the answers of the administrator and the defendants, D. D. McBride and wife Fannie, set up the bar of the statute of limitations and the presumption of payment or •satisfaction arising from the lapse of time since the excution •of the bond raised under the Revised Code, ch. 65, §18.</p> <p>Under instructions of the Cpurt, and in response to the issues upon this point, the jury found that the right of action is barred as to all the plaintiffs except the said Caroline C., and that no presumption of payment has arisen under the statute.</p>

This is a civil ACTION which was heard by McRae, Judge, upon exceptions to a referee’s report, at Fall Term, 1887, of GastoN Superior Court. The defendants, other than those representing the shares of the devisees Caroline and Elmina, appealed from the judgment of the Court. The facts are fully stated in the opinion.

Ctvil action, tried before Boykin, Judge, at Fall Term, 1887, of Watauga Superior Court. There was judgment for the plaintiff, from w’hich the defendant appealed. The facts are fully stated in the opinion.

This was a civil actioN, in New HaNoveb, Superior Court, heard by Philips, Judge, at Chambers, on the 24th day of October, 1887.

This was a civil ACTION for the recovery of land, tried before Avery, Judge, at the June Term, 1887, of the Superior Court of Pasquotank county.

Civil ACTION tried before Gilmer, Judge, at August Term, 1887, of Stokes Superior Court. The complaint alleges that the plaintiff is the owner in fee and entitled to the possession of the land decribed therein, and that the defendants unlawfully withheld the possession from him.

Civil action, tried before MacRae, Judge, at Fall Term, 1887, of Gaston Superior Court. The plaintiff brought this action before a justice of the peace in the county of Gaston to recover $93.30 from the defendant, and it went by appeal to the Superior Court of that county.

Civil actioN, originally commenced in a Justices Court, and carried by appeal to the Superior Court and tried before Clark, Judge, a jury trial being waived, upon the following statement of facts agreed, at August Term, 1887, of RowaN Superior Court: 1.

Issues joined in a special proceeding tried before Clarlc, Judge, at Fall Term, 1887, of Stanly Superior Court. This is a special proceeding to sell the land described in the petition far partition. The answers of the defendants raised isues of fact to be tried by a jury, and the Clerk transferred the case to the Civil Issue Docket, to the end these .issues might be tried according to law.

<p>Condemnation of Land — Appraisement—Jurisdiction—Clerk— Judge — Irregularities.</p> <p>1. An application for assessment of damages caused by the taking of lands in the construction of railroads, is not, strictly speaking, either a civil action or special proceeding, but is a summary proceeding, of which the Superior Court has jurisdiction in vacation or at term. The Judge of the Court may appoint the appraisers either in term or vacation, while the clerk can do so only in vacation, and then only as representing the Court.</p> <p>2. Where, in such a proceeding, it was agreed that issues raised upon the petition and answer should be transferred to the civil issue docket for trial; Held, that whatever irregularities there may have been in the conduct of the cause were cured, and the Court had jurisdiction to proceed with and finally determine it.</p> <p>{Brittain, v. Mull, 91 N. C., 498; Strayhorn v. Blaloek, 92 N. C., 292; Jones v. Desern, 94 N. C., 32; Warden v. McKinnon, Ibid., 378; Edwards v. Cobb, 95 N. C. 5; Capps v. Capps, 85 N. C., 408, and Peoples v. Norwood, 94 N. C., 167. cited).</p>

<p>Evidence — Market Price of Goods.</p> <p>Evidence of a dealer as to the price of goods sold at a distant market, whose information is derived in the course of business and from prices current sent him, is admissible, Tipon trial of an action to recover the price, as some evidence of the value of the article at the place of production — less the expense of transportation and sale.</p>

Civil ACTION, tried at May Term, 1887, of VaNCE Superior Court, before Merrimon, Judge, to recover damages for the seduction of plaintiff’s daughter, by the defendant’s testator. Defendant appealed.

Civil action to recover land, tried at Fall Term, 1887, of Haywood Superior Court, before Montgomery, Judge.

Civil actioN, commenced before a Justice of the Peace and tried on appeal at September Term, 1887, of Stokes Superior Court, before Cilmer, Judge. “ The plaintiff complained that the defendant was due him the fourth rent of the tobacco raised on his land in the year 1884, the value of which was admitted on the trial to be forty-five dollars.

Civil ACTION tried upon exceptions to a referee’s report, at Pall Term, 1887, of Stanly Superior Court, before Clark, Judge. This action is brought upon the administration bond of the defendants, R. G. D. Pickier and D. F. Pickier, to whom letters had been issued, and their surety, I. M. Redwine, for an account and settlement of the estate of R. G. D. Pickier, Sen., deceased.

Civil ACTION, tried before MacRae, Judge, at August Term, 1886, of Stokes Superior Court. The plaintiff alleges that he obtained a judgment before a justice of the peace of Rockingham county against one Mrs. Ingram, which was duly docketed in the Superior Court of that county; that Mrs. Ingram died, and her administrator, one Wilson, paid into the office of the Superior Court clerk of said county the sum of $90.00,' to be credited on said judgment.

<p>Civil action, tried at Spring Term, 1887, of McDowell Superior Court, before MacRae, Judge.</p> <p>The plaintiff alleges, and the answer admits, that John W. Houston, on May loth, 1876, contracted with R. D. Wilson for the purchase of a certain town lot in Marion, and in pursuance thereof the former executed his three several notes, under seal, for parts of the purchase money, the aggregate being $750, payable respectively on May 15th of the three following years ; and the latter gave a title bond covenanting to convey the lot when the price thereof was paid. It is further conceded, that Houston died before any of the notes became due, having in his life-time begun the erection of a house on the premises, without having paid any part of the purchase money, and that Wilson died in January, 1883, leaving a will, wherein he appoints the defendants, M. L. Sledge and Joshua McCurry, executrix and executor, both of whom qualified as such. The defence set up to the action for specific performance is, that the vendee, and those succeeding to his rights, were wholty unable to comply with the contract; that after his death, his es ate being insolvent and unable to pay its indebtedness, the said Wilson and his co-administrator, to whom letters of administration on the intestate’s estate had issued, filed a petition in the proper Court with the widow, father and brother of the deceased, for leave to sell his- equitable interest in the lot, and, they assenting thereto, obtained an order granting such license to convert the same into assets, and by virtue thereof the sale was made at the price of five dollars; that thereupon the said Wilson, with full notice to and without objection from others, entered upon the premises, and proceeded to complete the structure begun by the vendee, at an expenditure of more than $2,000; that no complaint was made by the plaintiff, who claims to be sole owner, by purchase from those entitled, of the whole estate, real and personal, of the intestate, nor by others, until, after an acquiescence for a period of six years, in 1883, and after the death of said Wilson, when the value of the lot from improvements put on it had been increased to $2,500 or $3,000.</p> <p>The plaintiff thereupon brought suit.</p> <p>Plaintiff replying, by leave of the Court, to the answer filed herein, alleges:</p> <p>That it is true that this plaintiff' and R. Don Wilson, deceased, did agree to a rescission and recantation of the contract herein complained of, and avers that said R. Don Wilson agreed then and there to take back the land at the contract price, and to pay the plaintiff the value of the improvement that J. W. Plouston had already put on the land, and agreed to take and use all material on hand or contracted for by said Plouston, and to pay the plaintiff the costs of the same, which improvement and material amount to a large sum of money, to-wit: to the sum of six hundred and fifty dollars; that plaintiff has demanded payment, and defendants have refused; wherefore plaintiff asks for judgment for six hundred and fifty dollars and costs on same from the date of said rescission, about January 1st, 1878, and costs of suit.</p> <p>The defendants by their attorney demur to the reply of plaintiff herein, and says that the several matters setup by Sarah Plouston in her said reply are not sufficient to enable her, the said plaintiff, to maintain her action aforesaid against these defendants, for that the cause of action is based upon a right to have specific performance of a contract to convey land, and the reply of plaintiff seeks to enforce a claim based upon an alleged rescission of said contract before the bringing of this action.</p> <p>For that the said reply is a total departure from the original cause of action, and wholly inconsistent therewith.</p> <p>Wherefore, defendants demand judgment for their costs, &c.</p> <p>The Court sustained the demurrer and. on defendants’ motion, dismissed the action and gave judgment against plaintiff for costs, from which the plaintiff appeals.</p>

(Civil actioN to recover land, tried at Fall Term, 1887, of Watauga Superior Court, before Boykin, Judge. So much of the case stated on appeal as is necessary to a proper understanding of the opinion of the Court, is as follows : “ Upon the trial the defendants introduced the deposition of one David Simmons. The plaintiffs objected to the questions marked 6 and 7 and the answers thereto.

Civil action, tried at February Term, 1887, of Forsyth Superior Court, before Boykin, Judge. This action is prosecuted against the defendant, a feme covert when it was instituted, but whose husband died soon after, to recover the balance due on account for goods sold and delivered to her.

Special PROCEEDING for the sale of land for partition, commenced before the clerk and tried at February Term; 1886, of SampsoN Superior Court, before Gilmer, Judge.

Proceeding for damages, tried at August Term, 1887, of CLEVELAND Superior Court, before MacRae, Judge.

Civil action, tried at February Term, 1887, of Iredell Superior Court, before Gilmer, Judge, and a jury. This action, begun on January 20th, 1886, by the plaintiffs against the defendants, is to impeach certain proceedings heretofore had in the Court of Equity of Iredell county, under the final decree in which, and the deed made by the Clerk and Master pursuant thereto, the defendant, Joseph Simonton, derived title to the land in controversy.

<p>This was an action for the recovery of land, tried before Clark, Judge, and a jury, at August Term, 1887, of Iredell Superior Court. ■</p> <p>When the case was called for trial, plaintiffs’ counsel moved the Court to strike from the amended answer so much thereof as purported to set up an equitable defence, or a demand for equitable relief, on the ground that the same was not pleaded as required in the order made by Judge Montgomery, appearing in the record.</p> <p>It appeared that this amended answer was filed at February Term, and at that term plaintiffs obtained leave to reply to the same, and that at May Term the case was continued by consent of both parties.</p> <p>His Honor refused this motion, and plaintiffs excepted.</p> <p>The land in controversy belonged to one Joseph Byers, who, in the second item of his will, after enumerating other property, devised it in these words: “All of which land * * * to remain in possession of my said daughter, Margaret N. S. Irvin, and her husband, during their natural lives, and to descend to the children of the said Margaret N. S. Irvin equally.”</p> <p>John F. Irvin, the husband, died in 1871, several years after the testator, and said Margaret N. S., in March, 1885, leaving four children, who, with the husbands of the daughters, are plaintiffs in this action. Several children died during their mother’s life, and without issue, of whom Francis was living in 1846, and he and the plaintiff Martha were the only children who were born previous to the year 1848. To divest title out of those to whom is devised the remainder, the defendants offered in evidence : 1. A deed executed on September 5th, 1846, by Joseph C. Simonton and John F. Irvin, as executors of said testator, Joseph Byers, to defendant Alexander Clark, purporting to convey the tracts therein described, for the sum of twenty-five hundred dollars. 2. A deed from said John F. Irvin and wife to the same, executed on the same day, and for the same consideration, for the same lands. 3. A deed of same date, and for the same sum, from said John F. Irvin to Clark, for the same lands, which is as follows :</p> <p>“ This indenture, made this 5th day of September, 1846, between John F. Irvin, guardian, Francis and Martha A. Irvin, acting under a decree of the Court of Equity of Ire-dell county, of the one part, and Alexander Clark of the other part, witnesseth : That the said party of the first part, for and in consideration of the sum of'twenty-fh>-e hundred dollars, the receipt of which is hereby acknowledged, has sold and conveyed, and does sell and convey, all that tract or parcel of land, &c.,” (describing it as in the preceding deeds, with covenants of seizin and warranty). “ In witness whereof the said party of the first part hath hereunto set his hand and seal, on the day and year above written. John F. Irvin. [Seal].” Attested by two witnesses.</p> <p>The plaintiffs objected to the admission in evidence of this deed, but the objection was overruled and the deed received, it having been proved by one of the subscribing witnesses.</p> <p>The defendants examined as witnesses the clerk of the Court and the former Register of Deeds, who testified to the burning of the court-house and its records since 1847, and that after careful search they had been unable to find any papers relating to the cause mentioned in the amended answer, or any papers relating to the plaintiffs or any of them; but the clerk produced a book which he stated was the docket of the Court of Equity for the year 1846, and for some yegrs prior and subsequent thereto. Certain entries therein, after objection made and overruled, were read, to-wit:</p> <p>“At Fall Term, 1846.</p> <p>[[Image here]]</p> <p>“ This cause coming on to be heard on the bill and answer, and the report of the clerk and master, it is ordered, adjudged and decreed, that the sale of the lands described in the bill of complaint made by complainants to Alexander Clark, be confirmed, and that the defendants, J. F. Irvin, guardian of Francis J. and Martha A. Irvin, convey the interest of said infants to said Clark, and that said infants, as they come of age respectively, convey to said Clark, or such persons as he may direct. It is ordered, adjudged and decreed, that John F. Irvin be appointed guardian pendente lite of Francis J. and Martha A. Irvin.”</p> <p>The plaintiffs objected to the introduction of this entry, for the reason, amongst others, that it did not relate to the suit or proceeding set out in the defendant’s answer, and that nothing appeared therein connecting this entry with the subject of this cont'oversy.</p> <p>His Honor stated that if plaintiffs’ counsel would say that they were taken by surprise by the introduction of this entry he would withdraw a juror and make a mistrial. The counsel failed to make such statement. Their objection was overruled, and they excepted.</p> <p>The defendants then introduced the following entry on said docket at Spring Term, 1847, of the Court:</p> <p>“JOS. W. SlMONTON</p> <p>j Decree Filed.</p> <p>“ T. J. and M. A. Irvin.</p> <p>• “ This cause coming on to be heard on the bill and answer and the report of the clerk and master, it is ordered, adjudged and decreed, that the sale of the land described in complainants’ bill, made by complainants to Clark, be confirmed, and that the defendant J. F. Irvin, guardian of Francis J. and Martha A. Irvin,, convey the interest of said infants to said Clark, and said infants, as they come of age respectively, convey to said Clark, or such persons as he may direct. It is ordered, adjudged and decreed, that J. F. Irvin be appointed guardian of Francis J. and Martha A. Irvin, infant children of J. F. Irvin.”</p> <p>The plaintiffs also objected to the introduction of this entry. Objection was overruled, and plaintiffs excepted.</p> <p>The clerk produced another book, which he testified was one of the books of the late Court of Equity, in which was transcribed a copy of the entry first above set forth, and also a certified copy of said entry, which defendants have caused to be registered in the Register’s office during this term of the Court.</p> <p>The plaintiffs objected to these documents. Objection overruled, and plaintiffs excepted.</p> <p>There was no further testimony in the case.</p> <p>During the argument, counsel for plaintiffs stated that the second Monday after the fourth Monday in August, 1846, the date of the Superior Court, was the seventh day of September, 1846, and objection being made, the Court said it would take judicial notice that such was the fact.</p> <p>The plaintiffs asked that instructions be given to the jury in substance:</p> <p>I. The defendants have failed to show title in themselves, to prevail against those to whom the remainder, now become an estate in possession, is limited under the will of Joseph Byers.</p> <p>II. There is no connection shown between the deed, purporting to be made under a decree, and the entries on the docket, which were at a time posterior to the date of the deed.</p> <p>III. If the title of the plaintiff Martha A. has been divested under the proceedings in the Court of Equity, that of the other plaintiffs has not been, they not being in esse at the time.</p> <p>The Court charged the jury (we do not produce in full and only so far as to illustrate the exceptions) as follows:</p> <p>I. Under the will, the testator’s daughter Margaret N. S. took an estate for life with remainder to her children, and the plaintiffs, since her death, are entitled to the possession of the land.</p> <p>II. The deed purporting to be made by the executors, there being no power given in the will to them to make such conveyance, is inoperative.</p> <p>III. The deed of Irvin and wife only transferred a life estate, which expired at the latter’s death in 1885.</p> <p>IV. The recital in the deed .of John F. Irvin, that in making it he was <! acting under a decree of the Court of Equity of Iredell county,” is prima facie evidence that such decree was regularly made in a cause properly constituted in said Court and authorizing the making such conveyance, the court-house having been burned and its record and papers (most of them) destroyed.</p> <p>Y. The said Francis and the plaintiff Martha A!, being shown by the plaintiffs to be the only children of said Margaret N. S. living at the time of the proceeding in the Court of Equity, were representatives of their class, so that the estate of those afterwards born, as well as their own, passed to the purchaser.</p> <p>VI. The deed, bearing date prior to the sitting of the Court and registered afterwards, may have been erroneously dated, as the defendants contend, and this is a question of fact for the jury to pass upon.</p> <p>There was verdict and judgment for the defendants, from which the plaintiffs appealed.</p>

Civil ACTION, commenced before a justice of the peace in the county of CLEVELAND, and tried upon appeal in the Superior Court, before Philips, Judge, at the Spring Term, 1885.

Civil actioN, tried before Shipp, Judge, at Pall Term, 1885, of Rutherford Superior Court. The plaintiff brought this action to recover the land described in the complaint, and on the trial produced and relied upon evidence of title in him as follows; 1. A grant for the land in controvery from the State to Jonathan Pell, dated November 28th, 1792. 2.

Civil ACTION, begun before a Justice of the Peace and tried upon appeal before Gilmer, Judge, at Fall Term, 1887, of Stokes Superior Court. The plaintiff, as administrator of Pleasant Pringle, and under license from the proper Court, sold a tract of land to the defendant, in order to make assets, for the sum of two hundred and sixty dollars.

Petition for the writ of certiorari, filed at February Term, 1887, of the Supreme Court. The action was brought to recover land, was tried upon issues by a jury at August Term, 1886, of the Superior Court of Madison, and judgment rendered for the plaintiffs.

This was a motion to set aside a sale, heard by Boykin, Judge, at Fall Term, 1887, of Caldwell Superior Court. The plaintiffs, at Spring Term, 1887, of Caldwell Superior Court, recovered judgment, for want of an answer, against the defendant for $973.48, residue of the purchase money contracted to be paid for land, and a decree for the sale thereof, unless payment should be made in ninety days.

<p>This was a civil action, tried at March Term, 1887, of Wilkes Superior Court, before BoyJcin, Judge, upon the following case agreed.</p> <p>The defendant is the wife of W. A. Saunders. Plaintiff ■obtained judgment in the Superior Court at Fall Term, 1885, against said Saunders for $748.12, in an action in which a warrant of attachment regularly issued from said Superior ■Court at the time of issuing of the summons, and was levied ■upon the land described in the complaint.</p> <p>The defendant William A. Saunders was'at the time of the commencement of that action, and still is, ¡i non-resident of this State, and is now a citizen of the State of Kansas. The land in controversy was sold under execution on said judgment, and the plaintiff became the purchaser at execution sale, -for the sum of $100. The defendant in this action lived in this State with her said husband, W. A. Saunders, for five years next immediately preceding three months before the bringing of this action, and did not leave the State when her husband left (three months before the issuing of ■.the said attachment), and has remained since and still lives here, and the defendant, “ as widow,” asserts a right to hold the land in controversy, under her husband, claiming a homestead in the same. No homestead has ever been laid off in the land, and the defendant has no homestead in her own right, and the land in controversy is not worth one thousand dollars.</p> <p>Upon this state of facts, judgment was rendered for the defendant, E. A. Saunders (wife of W. A. Saunders), the Court adjudging that she was entitled to the land in controversy as a homestead for the benefit of herself and children. From this judgment the plaintiff appealed.</p>

This is a ctvil action, and was tried before MacRae, Judge, at Spring Term, 1887, of Buhke Superior Court. The plaintiff alleges in the complaint that he is the owner of a valuable grist-mill, situate at the foot of the Blue Ridge Mountains, near to a bold stream that descends rapidly from the side of that mountain, called Mill Creek. The machinery of this mill is moved by the application of power of water, accumulated in a pond produced by a dam acr ss that stream.

This is a civil actioN, which was tried upon exceptions to referee’s report, before Connor, Judge, at September Term, 1885, of Pitt Superior Court. The action was brought by the ancestor of the present plaintiff, to the Spring Term, 1879, of the Superior Court of the county of Pitt, against the defendants, the Littles— husband and wife — to recover the land described in the complaint.

Civil action, tried at Spring Term, 1887, of Asiie Superior Court, before MacRae, Judge. The parties agreed “ by oral consent, entered on the minutes” of the Court, as allowed by the statute (The Code, §416, par. 3), to waive a trial by jury.

<p>Arrest and Bail — Res Adjudicata — Trial by Jury — Insolvent Debtors.</p> <p>1. A motion to vacate an order of arrest, having been once heard and refused, is res adjudicata.</p> <p>2. A party, under arrest in a civil action, moving to vacate the order upon affidavits submitted to the Court, is not entitled to a trial by jury upon the questions of fact raised.</p> <p>3. If an order of arrest has not been vacated the party in custody may seek his discharge in the manner provided for insolvent debtors. The Code, Vol. II, ch. 27.</p> <p>jRoulhaa v. Brown, 87 N. C., 1: Pasour v. IÁneberger, 90 N. C., 159, and Clajlin v. Underwood, '75 N. C., 485, cited).</p>

This is a civil ACTION, which was tried before Montgomery, Judge, upon exceptions to referee’s report, at Spring Term, 1887, of the Superior Court of GastoN county. The action is by one partner against the other for an account and settlement of the firm business, which, in general merchandise, commenced in the Spring of 1871 and terminated early in February, 1874, and in the ginning and pressing of cotton, afterwards superadded, which was dissolved in the Summer of 1877.

<p>’ Negligence — Evidence.</p> <p>1. Where the facts are ascertained, what is contributory negligence is a question for the Court; where they are disputed, it is the duty of the Court to explain the law and direct the jury to apply it to the facts.</p> <p>■2. A person who takes passage on a freight train, knowing the risks and inconveniencies incidental thereto, is bound to exercise more care with respect to his own safety and comfort than is required of him upon ordinary passenger trains.</p> <p>.3. Where the plaintiff was a passenger on a freight train, riding in a “caboose,” there being seats provided for him, was thrown down and received injuries by the sudden starting or jerking of the train; Held, to be some evidence of* contributory negligence, which ought to have been submitted to the jury.</p> <p>.{Smith v. R. R. Go., 64 N. C., 235, cited).</p>

<p>This action was begun in the county of Gaston and removed to CleavelaND, where it was tried before McRae, Judge, at Pall Term, 1887, of the Superior Court.</p> <p>The defendant was sheriff of Gaston county for the term of two years, beginning on December 6th, 1880, and ending on the 4th day of the same month in 1882. During this period he gave three bonds, one of twelve thousand dollars on the day of his entering into office, a. second on September 3d, 1881, of seventeen thousand dollars, the last on September, 23d, 1882, of thirteen thousand dollars, all payable to the State, and with a condition in each to account for and pay over the county taxes as required by law; and the other defendants are the sureties to one or other of said bonds. These are annexed to the complaint as exhibits, and form part of it. The relator, who, at the time of bringing the action on August 23d, 1883, was the county treasurer, alleges that an account and settlement was had on July 14th, 1883, between them of the county taxes of 1882, when it was found he was indebted in the sum of $2,216.14, and this he has refused to pay, whereby, in addition thereto, he has incurred the penalty of $2,500, imposed by the statute. By an amendment afterwards allowed, the sheriff is charged with interest, at the rate of two per cent, a month on all unpaid indebtedness.</p> <p>Judgment is demanded for the penal sums of the several bonds against the sheriff and the sureties to them, respectively, to be discharged on payment of said sums of $2,216.14, the measure of his official delinquency in the payment of taxes due the county and the said penalty of $2,500 thereby incurred.</p> <p>The defendants who were served with process, answering, deny that there was any accounting on July 14th, 1883, and say that the sum mentioned in the complaint as a debit is correct, but that the sheriff claimed a further credit of seventeen hundred dollars, for which he produced the relator’s receipt for moneys paid him, and which he refused to allow in the reduction of the sum so demanded, and the difference, to-wit, five hundred and sixteen dollars and fourteen cents is due, to the entering of judgment, for which, with interest since July 14th, 1883, no objection is made.</p> <p>After many continuances, and the setting aside a verdict rendered for the defendants on a previous trial, the cause again came on to be tried at August term, 1887, as before, upon a single issue, as follows:</p> <p>“ Did the defendant, G. W. McKee, as sheriff of Gaston county, pay to the plaintiff, J. A. Davenport, treasurer of said county, seventeen hundred dollars as set forth in the answer, and is he entitled to credit therefor?”</p> <p>The jury responded “ No.”</p> <p>Thereupon, after a motion for a new trial and then in arrest of judgment, made and denied, judgment was entered against the defendant, which, omitting the recital of the action of the jury, proceeds in these words: “It is now, on motion, adjudged that the plaintiff recover of the defendant, G. W. McKee, and the other sureties to the first bond seventeen thousand dollars, the penal sum mentioned in their bond, as set out in the complaint, and of the defendant, G. W. McKee, as principal, and the others, sureties, the sum of twelve thousand dollars, the penal sum mentioned in their bond, as set out in the complaint, and of the defendant, G. W. McKee, as principal, and the others, sureties, the sum of thirteen thousand dollars, the penal sum of their bond, as set out in the complaint; (separately designating by name the sureties to the respective bonds) all of which are to be discharged upon the payment to the plaintiff of the sum of $2,216.14 with interest on the same from the 14tH day of July, 1883, at two per cent, per month and the further sum of $2,500, the penalty prescribed by law and demanded in the complaint, with interest thereon from the 14tb day of July, 1883, until paid, together with the costs of this action, to be taxed by the clerk of this Court.”</p> <p>From the rulings upon the trial and from the final judgment the defendants appealed.</p>

The following is so much of the case settled upon appeal as need be stated here: “ The action was brought and complaint filed in the name of William Richards and wife, Mary A., as plaintiffs, alleging that they are the owners in fee and entitled to the possession of the following lands in Gaston county : One tract (describing it by metes and bounds), containing 200 acres and 73 poles; and another tract, (describing it by metes and bounds), containing 14 acres, more or less.

<p>Evidence — Ilandiuriting—Presumption.</p> <p>1. While it is not competent to prove handwriting by comparison, it is not necessary that the witness shall have seen the person, whose writing is the subject of controversy, write — it is sufficient if he shall have acquired by other means, as by receiving letters or handling papers of admitted genuineness, knowledge to enable him to idehtify the writing.</p> <p>2. In an action to set up a lost deed, it was not error to permit a witness to repeat the remark “now you know whose land it is,” made at the close of the reading of the deed by the vendee a short time before its loss or destruction — proof of the contents having been previously given.</p> <p>3. Possession of an unregistered deed does not raise a presumption of its delivery, but it is a fact from which the jury may infer a delivery in the absence of rebutting evidence.</p> <p>{State v. Harris, 5 Ired., 287; Gordon v. Price, 10 Ired., 385; MeKonJcey v. Gaylord, 1 Jones, 94, and Pope v. Aslceiv,! Ired., 16, cited).</p>

Civil ACTION for the recovery of land, tried before Graves, Judge, at Pall Term, 1886, of Gaston Superior Court. The following issues were submitted, which were answered, as indicated: “1. Is the plaintiff the owner of the land in dispute, or of any part thereof? Response: Yes, up to the red line upon our plat. 2. Was the defendant, Fite, in possession of any part of the land, to which Smith had title, at the commencement of this suit?

Civil actioN, tried before MacRae, Judge, at Spring Term, 1887, of Ashe Superior Court. Plaintiffs and defendant each claimed the land in dispute through one David Houck, Sr., — the plaintiffs as his heirs-at-law — the defendant as heir-at-law of James Calloway, under a deed dated February 22d, 1845, executed by David Houck, Sr., to said Calloway.

The plaintiffs, creditors of the defendant Samuel IT. Smith, who have reduced their claims to judgment, and caused them to be docketed in the Superior Court of Forsyth, on behalf of themselves and other creditors seek to pursue and subject to their demands certain goods and a lot of land, which they allege were bought and paid for by the debtor, and by his direction title made to the defendant Maggie H., his wife, with intent to place them beyond the reach of final process.

<p>Issues joined upon a petition for betterments, tried before Ciarle, Judge, at January Term, 1887, of Robeson Superior Court.</p> <p>This action was brought to recover possession of a specified parcel of land, part of the right-of-way of the plaintiff company, situate in the town of Shoe Heel. The pleadings raised issues of fact. There was a trial, and the plaintiff obtained judgment, whereupon the defendant filed his petition in the action, as allowed by the statute, (The Code, §473,) alleging that he, while holding the premises under color of title, believed by him to be good, made permanent' improvements thereon by erecting a large brick store-house, at the cost of about thirty-five hundred dollars, and praying that he be allowed for the same over and above the value of the use and occupation of such land by him, &e. The plaintiff filed its answer thereto, denying the material allegations thereof, the right of the defendant to the relief demanded, or any such relief, &c., thus raising issues of fact.</p> <p>Afterwards, the Court submitted issues to the jury, which, with the responses thereto, are as follows:</p> <p>“1. Hid McCaskill, while erecting the store, have reason to believe the title good under which he was holding the premises ? A nswer: 1 Yes.’</p> <p>2. How much is the value of the premises at this timej enhanced by such improvements? Answer: ‘$3,000.’</p> <p>3. How much is the value of the use and occupation of the lot? Answer: ‘$50 per year.’ ”</p> <p>The plaintiff requested the Court to submit the following issue also, which it declined to do, and the refusal is assigned as error:</p> <p>“ Does the building erected by the defendant meliorate and improve the premises for the purposes of the plaintiff railroad ?”</p> <p>The following is so much of the case settled on appeal as it is necessary to set forth here:</p> <p>“The defendant introduced a grant from the State to David Allison, dated June 27,1795; deed from McCoy to Robert Hughes, dated August 11, 1851; deed from McCoy to Robert Plughes, dated July 1, 1834; deed from Caroline Gordon to John Patterson, dated January 19, 1866; deed from R. McMillian, sheriff, to Giles Leitch, May 27, 1877; deed from A. Leitch and wife to J. C. McCaskill, dated May 9, 1883; deed from Robinson to J. C. McCaskill,' dated June 11, 1883.</p> <p>It was proved that Giles Leitch was dead, and Mrs. Robinson and A. Leitch were his heirs.</p> <p>The defendant testified that the deeds introduced cover the land recovered by plaintiff in this action ; that he built the store; that the value of the land was enhanced by it $3,500; he began building in the fall of 1883 and finished in the spring of 1884; bought the land to build on it; built to edge of street, not knowing he would ever be troubled; the street between store and railroad track is a public street, and is fifty feet wide; there was an agent of railroad at depot, within a hundred yards of store; saw this agent every day; saw superintendent of railroad after, and talked with him before and while building store; no objection from either of them or any one else; ran his line by his deeds and it went to railroad ditch, within a few feet of track. Witness said he built the store, believing his title to be good (exception by plaintiff; overruled); that John Patterson and those under whom he claimed have been in possession ever since 1868 up to the time defendant took possession. There is a public street in front of store, which crosses railroad at right angles. It is a brick store, 91 feet by 'JO feet; store below and eight rooms ;>bove; what the store and lot would sell for now he cannot say; he thought deed ran to railroad ditch; did not disclaim title in this suit to land between store and railroad; did not deny being in possession of this lot; did take a deed in 1870 for a lot of land on opposite side of railroad, conveying the land up to edge of track; in that deed the railroad right of way was excepted in the warranty clause; no definite amount was excepted; understood that under that deed he did not have any claim for what plaintiff would condemn under its claims for right of way; always understood that on the opposite side of railroad, because the depot was located on that side, the right of way was a hundred feet and on this side thirty feet; built a house on opposite side within one hundred feet; could not find anywhere that the right of way had been condemned or otherwise acquired b}r railroad company; that he consulted counsel as to whether railroad company had any claim on the land, and in consequence of his conversation with counsel he believed that the railroad company, not having condemned the land, have no right to it; thought that railroad company only had the right to enough land to run on, except when it had been condemned; counsel consulted was attorney for Leitch, his vendor, and he said there was no record of condemning the land; there was a shanty five or six feet further off than store; did not try to get the land shanty was on from Jones; this shanty was used and claimed by railroad when he bought the land, and was on the same side-of railroad as the store; does not remember, while building store, he was told by Sharpe, in presence of Parham, that he-•was building on right of way; never had any notice till suit was brought; building was then all complete, except painting inside; don’t remember any conversation before roof was put on; did not offer other land to railroad for land this shanty was on; went to Rowland, attorney, because he (witness) wanted posse-sion of shanty, and to know if there would be any trouble about it; shanty embraced in his deed; fair rental value of land on which store is located, not including rental of store, is $25 or $30 per year; Patterson’s store was on land where my store is and was also nearer railroad than this store; the actual cost of brick store is $3,000. ■</p> <p>Plaintiff introduced: former case on appeal to Supreme Court; judgment of Superior Court and judgment of Supreme Court; act incorporating Wilmington, Charlotte & Rutherford Railroad Company, 13th February, 1855; acts incorporating Carolina Central Railroad Company, 20th February, 1873 and 1881; deed from' J. II. Pollar to Carolina Central Railroad, 17th May, 1873; deed from Stedman and Davis to French and others, 25th June, 1880.</p> <p>Sharpe, a witness for plaintiff, testified that he told McCas-kill he gave him notice that he was building on the right of way, and that McCaskill offered to give another piece of land for railroad right of way on this tract; the house was not then roofed and no floors.</p> <p>S. W. Parham, witness for plaintiff, testified: Heard Sharpe tell McCaskill he was unfortunate that he had put his house on right of way; the walls were then up, but store not finished' — no roof or floors; there were nine windows on side of store next to railroad; this was in February or March, 1884.</p> <p>Jones, the superintendent, and witness for plaintiff, testified : McCaslcill’s store is on right of way of railroad company ; the railroad has no use for it; the store is about fifty feet from track and within the hundred feet right of way, .•and it cannot be used for any railroad purpose ; the' store , obstructs the view of track from persons traveling the street in front of the store, which street crosses the railroad.</p> <p>Plaintiff then asked the following instructions:</p> <p>1. That if the jury believe the evidence, they will respond ■Jo the first issue, No.</p> <p>2. That if the jury believe the testimony, they will respond to the second issue, Nothing.</p> <p>3. That if the Carolina Central Railroad had a house on the land and in actual possession of the same at the time he took his deeds, then he is presumed to know the extent and nature of the claim of the railroad to the same.</p> <p>4. That if the jury believe the testimony, the house built by McCaskill was an obstruction and not an improvement.</p> <p>5. That if the jury believe the evidence, McCaskill had no color of title to the premises.</p> <p>His Honor gave plaintiff’s third prayer for instructions, and charged the jury that if they found from the evidence that McCaskill, while erecting the store, had color of title, and that he not only believed, but had reason to believe, the title good, under which he was holding said premises, they would respond to the first issue, Yes; otherwise, No, as the burden was on the defendant to make out his claim by a preponderance of the evidence; that it was not what McCas-kill believed, but what there was reason to believe; that McCaskill must not only believe his title good, but that, under the statute, he must have reason to believe it good, and that the jury must determine this from the evidence; that if the jury find the first issue, Yes, then they would say from the evidence, how much, if any, the value of the premises at this time was enhanced by such improvements; that they should only estimate such improvements as were made before notice given, if notice was given, and that such improvements should not be estimated by the actual cost in making the same, but by the enhanced value they gave to the premises; that if they found the first issue, No, then they need not consider the other issues; that if they found the first issue, Yes, then, after determining the secondissue, they would pass to the third, and would determine from the evidence the clear annual value of the premises, exclusive of the addition to the rental value by reason of improvements put upon the same by defendant from the 9th day of May, 1883, to date.</p> <p>For the refusal to charge as requested and to the charge as given, tlie plaintiff excepted.</p> <p>Motion for judgment upon the evidence non obstante vere-dicto, refused. Motion for new trial overruled; judgment for defendant; appeal by plaintiff.”</p>

Motion heard before Montgomery, Judge, at Pall Term, 1887, of PIaywood Superior Court. In the progress of this cause, and after a response from the jury to an issue submitted to them, it was adjudged by the Court as follows: 1. That the defendant A. L. ELerren had a charge and lien upon the land sued for, for the sum of $300, with interest on the same from the 12th day of October, 1870, and that he hold said land until the same is satisfied and paid; 2.

<p>This is a civil action, heard by MacRae, Judge, upon a case agreed at Pall Term, 1887, of the Superior Court of Lincoln county.</p> <p>The controversy between the parties to the action arises out of the will of Mahala Sherrill, who died in the year 1863, and is as to the proper construction of certain clauses contained in it. These clauses are as follows:</p> <p>Item 7th. I give and bequeath unto Middleton D. IPobbs, as trustee, for the use of Belza A valine James, one negro man named Allen, and one girl named Catherine, one negro girl named Mary Jane, one negro girl named Little Catha-rine — during her natural life, and after decease to the use of the lawful begotten heirs of her body, each child share and share alike.</p> <p>Item 8th. I give and bequeath unto Middleton D. Hobbs, as trustee, for the use of Belza A. James, all my lands lying below the line running from the High Shoals and Ball’s Creek, on which my house stands, to her use during her natural life; after her decease to the use of the lawful begotten heirs of her body, each one to share and share alike.</p> <p>Item 9th. I give and bequeath to Mahala Elenora James •one bed and furniture.</p> <p>Item 10th. ^ give and bequeath unto Middleton D. Hobbs, .as trustee, for the use of Belza A. James, the rest of my beds not disposed of, also the one half of my household and kitchen furniture.</p> <p>Item 11th. I give and bequeath to Logan Wilson and Middleton D. Hobbs, as trustees, for the use of Elizabeth M. Wilson and Belza A. James, my wheat-threshing machine— each one half of it. In case of the death of Belza A. James and all her children, all the property willed to her revert to my nephew, Middleton D. Hobbs.</p> <p>The cause was submitted to the Court upon a “ case .agreed,” the material facts whereof, in connection with the ■construction of the will, are thus stated:</p> <p>“ 3d. It is further agreed, that at the time of the execution ■of said last will and testament and at the death of the testatrix, Belza A. James had only two children living and never had any others; that these two children were Nora James, who intermarried with the plaintiff J. D. Lockman, and died in the life-time of her mother, Belza A. James, to-wit, in July, 1883, leaving her surviving only two children, who were the plaintiffs, Mandy Lockman and William Lock-man ; and the other child of Belza A. James was a son of A. ■G-. James, who died intestate and leaving no wife or child in the life-time of his mother, Belza A. James, to-wit, in August, 1883, but leaving him, the said A. G. James, two children of his sister, to-wit, said Mandy and William Lockman, him surviving, and that the plaintiff J. D. Lockman is his administrator and also is administrator of Belza A. James, who died in February, 1887, and also administrator of said Nora Lockman, deceased.</p> <p>“ 4th. It is further agreed that the defendant, Middleton D. Hobbs, entered upon and exercised his office as trustee for said Belza A. James, up to the time of her death, and took into his possession the personal property given in trust for her, and exercised control over the real estate so given in trust for her, and that he was a nephew of the testatrix, Mahala Sherrill, and that Belza A. James was her niece.</p> <p>These facts herein stated- and agreed upon as the material .facts necessary for the construction of the will of Mahala Sherrill as to defendant M. E>. Llobbs’ claim thereunder, which is, that he is entitled to the property bequeathed and devised to Belza A. James at the date of her death as here-inbefore'stated; which property is also claimed by plaintiffs under said will, — this agreement is made without prejudice to any of the other claims and charges made in plaintiffs’ complaint, or as to other facts therein alleged.”</p> <p>Thereupon was entered the following judgment:</p> <p>“It is adjudged that under the will of Mahala Sherrill, deceased, the property therein and thereby bequeathed and devised to M. D. Hobbs, in trust for Belza. A. James, at the death of said Belza A. James belongs to the plaintiffs, Manda Lockman and William Lockman, and that said property so devised and bequeathed does not revert to the defendant, M. D. Hobbs; and therefore, on motion of plaintiffs, it is ordered further that this cause be and the same is hereby referred to C. E. Childs, clerk of this Court, to take and state an account as to all matters in controversy between the parties, as the same are set forth in the pleadings, and he make due report of his findings of fact and of his conclusions of law separately, as required by the Code of Civil Procedure. And it is further ordered that the referee do also take and state an account of the rents and profits that have accrued since the death of Belza A. James.”</p> <p>From this judgment the defendant appealed.</p>

<p>This is an -appeal from an order made by Montgomery, Judge, at Fall Term, 1887, of Haywood Superior Court, requiring the defendants to answer concerning their property in a supplemental proceeding under §488 of The Code, based upon the following affidavit:</p> <p>“W. L. Norwood, attorney for plaintiffs above named, being first duly sworn, deposes and says: That the defend-, ants, S. J. Shelton and J. M. Davis, are indebted to the plaintiffs in the sum of $262.09, with interest on $256.79 thereof from the 19th day of May, 1879, by virtue of a judgment duly obtained and recorded in the Superior Court clerk’s office of Haywood county, in Judgment Docket ‘ F,’ on page 20, together with costs of suit;</p> <p>“That on the 14th day of March, A. D. 1881, an execution was issued against the property of the defendants in favor of plaintiffs, which was duly returned on the 3d day of May, 1881, wholly unsatisfied; that on the respective days, to-wit:' June 28th, 1881, January 16th, 1882, March 10th, 1883, December 17th, 1883, October 28th, 1884, alias executions issued ,to the sheriff of Haywood county against the property of .defendants in favor of plaintiffs, each and every one of which •■were duly returned wholly unsatisfied, as appears by record ,on the Judgment Docket aforesaid; that on the 16th day of February, A. D. 1886, an alias execution was again issued to the sheriff of Haywood county against the property of .defendants and in favor of plaintiffs, which said execution ■was on the 5th day of April, A. D. 1886, duly returned •wholly unsatisfied. Affiant believes, on information, that -,the defendants, S. J. Shelton and J. M. Davis, have property, dioses in action or things of value, which ought to be subjected to the payment of the judgment. To this affiant’s knowledge there is not any equitable estates in lands within the lien of the judgment. Affiant further states that said judgment is wholly unpaid and satisfied.</p> <p>“ Amended by consent, thus: Affiant is informed and believes that defendants have no property, real or personal, that is subject to execution.”</p> <p>Upon this affidavit an order was issued by the clerk,' requiring the defendants to appear, &c. Upon the return of the order a motion was made before the clerk to dismiss the proceedings because of the insufficiency of the affidavit. The clerk adjudged the affidavit to be insufficient, and dismissed the proceeding, from which the plaintiffs appealed to the Judge of the Superior Court, and upon the hearing of the appeal the following order was made:</p> <p>“ This cause coming before me on appeal of plaintiffs from the order of the Clerk of the Superior Court of Haywood county, dismissing the proceedings on the ground that the plaintiffs’ affidavit, upon which the same issued, is insufficient, upon hearing the record in the cause and the argument of counsel—</p> <p>“ It is considered by the Court here that said affidavit is sufficient in law; and it is ordered by the Court that the defendants answer, as required in the original order, concerning their property, before the clerk of the Superior Court at a time and place to be fixed by said clerk.”</p> <p>From this order the defendants appealed to this Court, and the only question presented for consideration is whether the affidavit is sufficient in law to warrant the order.</p>

Civil ACTION, tried before, MacRae, Judge, at Spring Term, 1887, of Ashe Superior Court.

<p>Civil action, tried before McRae, Judge, at Fall Term, 1887, of the Superior Court of Catawba county.</p> <p>The allegations of the complaint, as amended, summárily expressed, are:</p> <p>1. The land in dispute belonged to one Jacob Jarrett, who contracted with Joseph Seagle to sell the same to 'him, and gave bond to make title on payment of the purchase money, and the vendee did pay most of what was due.</p> <p>2. The plaintiff afterwards recovered judgment against Seagle before a justice of the peace, which was docketed in the Superior Court, and at a sale under execution issuing thereon, bought the land at the price of $75 — a sum more than sufficient to satisfy the execution, and took the sheriff’s deed thereon. /</p> <p>3. Seagle, having paid the residue of what he was owing for the land, or it having been paid by the defendant Margaret or one Ella Seagle out of his money or effects, instead of having the land conveyed to himself caused the deed to be made to the said Margaret, she and Ella being his daughters, with intent to place it beyond the reach of his creditors, and to defraud the plaintiff.</p> <p>The demand is to have the said Margaret declared a trustee to the amount of plaintiff’s debt, and to subject the land to its payment.</p> <p>The answer of the defendant Margaret denies the material allegations of the complaint, or avers a want of knowledge or information sufficient to form a belief of their truth; and thereupon certain issues were made up, to be passed upon by the jury, which, with the responses to each, are as follows:</p> <p>1. Did plaintiff recover judgment against defendant Joseph Seagle, as set out in the complaint? Answer: Yes.</p> <p>2. Had the defendant Joseph Seagle, before the rendition of said judgment, entered into a contract for the purchase of the land described in the complaint with one Jacob Jarrett? Answer: Yes.</p> <p>3. Was the purchase money for said land paid by defendant Joseph Seagle, or by the other defendant, or by any one else out of the money, property and effects of'the said Joseph Seagle? Answer: Yes.</p> <p>4. Did Joseph Seagle procure a deed to be made by Jacob Jarrett to Morgarett Seagle for the purpose of hindering and delaying the creditors of Joseph Seagle, and did Margaret receive the same for that purpose, or without consideration? Answer: No.</p> <p>5. Did plaintiff, Abernathy, purchase the land described in the complaint at execution sale upon said judgment, and bid the full amount of his judgment, or what amount? Answer: Yes, full amount of his judgment.</p> <p>It was in evidence that in 1869 Jacob Jarrett gave his bond for title for the land in question to Joseph Seagle; that about $50.00 was paid in cash, and two or three notes given for the balance, payable in separate installmen is.</p> <p>That Seagle had very little property, but had $50 in money when the trade was made; the purchase price of the land was about $125 or $130.</p> <p>It was also in evidence that Seagle said he would not pay the judgment, but would fix the land so that it could not be sold under the judgment; that he would divide it among his children.</p> <p>It was also in evidence that in 1866 or 1867, Jarrett had given a bond for title for the same land to one Stallings, a son-in-law of Seagle, prior to the bond which he had given to Seagle, and that this bond to Stallings was in possession of Seagle for several years, while Seagle claimed the land,, and while Seagle held the bond for title which Jarrett had made to him (Seagle).</p> <p>It was in evidence that after the death of Jacob Jarrett, his heirs, all being of age, made a deed to Stallings for the land in controversy, upon payment by Margaret Seagle to-them of $20 in cash and the giving of her notes to said heirs for the remainder of purchase money, which notes were subsequently paid; and that the arrangement was that, upon payment by Margaret of the amounts stated, she was to have fifty acres of said land; and that on the 27th of' January, 1879, Stallings made a deed for the whole tract to-said Margaret, though Stallings kept 20 acres.</p> <p>It was in evidence that Stallings was a very poor man,, unable to pay the purchase money of the land, but lived upon the land; that Margaret was of age and worked for herself,-and made some money from 1875; that Joseph Sea-gle and his family lived upon the land with his daughter Margaret and another.</p> <p>There was no evidence of any deed from Jacob Jarrett to-Margaret Seagle.</p> <p>Upon the 4th issue the presiding Judge instructed the jury that there was no evidence that a deed was made by Jacob Jarrett to Margaret Seagle for this land, and that the response to this issue should be “No.” Plaintiff excepted.</p> <p>There was no motion by plaintiff to amend the complaint.</p> <p>The plaintiff’s counsel contended that the variance between the allegations and proofs, upon the 4th issue, was immaterial, and moved for judgment for plaintiff.</p>

.Exceptions to referee’s report, made in Proceedings Supplementary to Execution, heard by Connor, Judge, at Fall 'Term, 1887, of New HaNOver Superior Court. Prom the judgment confirming the report both parties appealed.

This was an issue of devisavit vel non, tried before Graves, Judge, at Spring Term, 1887, of Buncombe Superior Court. There was a verdict, and judgment in accordance therewith, for the caveators, from which the propounder appealed. The facts are stated in the opinion.

This is a civil actioN, which was tried before Avery, Judge, at Spring Term, 1887, of Heuteoed Superior Court.

This is a civil ACTION, in the nature of quo warranto, and was tried before Shipp, Judge, at January Term, 1887, of NORTHAMPTON Superior Court.

Civil actioN, tried before Shipp, Judge, at February Term, 1887, of Chaven Superior Court, upon demurrer to the complaint.

Civil action, tried before Shipp, Judge, at February Term, 1887, of Craven Superior Court, upon complaint and demurrer.

The relator alleged that he had been duly elected Treasurer of Craven County, at an election held in November, 1886, but that the County Canvassers had illegally rejected certain returns and declared the defendant elected, who had been inducted into the office and was exercising its functions, &e. The defendant demurred. There was judgment overruling the demurrer, and defendant appealed.

This was an action to recover possession of the office of Coroner for Craven County, to which the relator alleged he had been duly elected in November, 1886. It was tried before Shipp, Judge, on demurrer to the complaint, at February Term, 1887, when the demurrer was overruled, and defendant appealed.

<p>IndictmeNt for murder, tried before MacRae, Judge, at Spring Term, 1887, of Mitchell Superior Court.</p> <p>The jury found the prisoner guilty of murder, and from the judgment thereon pronounced she appealed.</p> <p>The prisoner is charged in the indictment with the murder, by drowning, of her infant son, of about the age of four years, and was found by the jury guilty of the crime. The testimony, in substance, was that about the middle of the ... day in January, 1887, the prisoner was -seen with her child in her arms going down the public road, from which, at a point further on, tracks were afterwards found diverging towards the stream in which, some days later, the dead body was found. She returned the same day and was at the house of a witness, McKinney, without the child. To an inquiry as to what she had done-with it, she replied that she had given it to Mr. Woods, whom she saw at Major Keene’s with some cattle; that she had taken it down to give to the latter, but it was too small, and he did not want it, and Mr. Woods said he would take it. The prisoner remained that night at the house of the witness, and her mother coming next morning, they left together.</p> <p>The witness met prisoner a short time afterwards and told her that Mr. Woods did not have the child, and “if she could not show what she had done with it they would get after her about it.” She then said that “she had not given it to Woods, but to a darkey from Virginia that used to work at Woods’,” and that she did not know the darkey’s name.</p> <p>To this testimony the prisoner’s counsel objected, and the objection was overruled and an exception entered.</p> <p>On the next Sunday the witness and another, who had been watching the movements of the prisoner and her mother, fell in company with two others, Green and Phillips — Green being a deputy of the Sheriff — when a conversation again took place about the missing child, when witness said: “We told her (the prisoner) she had better show up what she had done with it.” Four men besides witness were present. “We told her she had done something with the child, and she had better show up what she had done with it.” He further testified as follows: “ We told her at last that she had to tell what she had done with the child; and the deputy sheriff, Green, told her if she would take him to the place where she had lost the child he could tell with a crooked stick what she had done with him. Then we told her it would be best for her to tell what she had done with him,” adding, “ come ■out and tell the truth about it and confess it all.”</p> <p>To this prisoner’s counsel objected, and to its reception excepted.</p> <p>The witness Green, after corroborating what the last witness said of the conversation with the prisoner, testified that she at first refused, but afterwards carried him to the river; that “ she seemed very brave at first, but when she got to the river became much agitated and looked guiltythat he was acting as a detective, and believed that he could effect his purpose by the crooked stick; and the prisoner said: “If anybody wanted their negroes drowned to bring them to her.”</p> <p>There was much evidence offered of her feeble and low grade of mind, and of her capacity to distinguish between right and wrong, which it is not necessary to reproduce, since the question has been eliminated by the finding of the jury, under instructions of which no complaint was made.</p>

<p>Evidence — Witness—Sweden of Proof — Judge’s Charge.</p> <p>1. If a person charged with a crime voluntarily offers himself as a witness in his own behalf he waives his constitutional privilege of refusing to answer a question because the answer may tend to crimi-nate him.</p> <p>2. Upon the trial of an indictment for murder, the killing being admitted or proven, it is not error for the Court to charge the jury that, if the testimony does not satisfy them that the offence is manslaughter, it is their duty to convict of murder.</p> <p>(State v. JEfler, 85 N. 0., 585; State v. Garrett, Busb., 357; State v. Patterson, 2Ired., 346; State v. Murray, 63 N. C., 31; State v. March, 1 Jones, 526; State v. Bowman, 80 N. 0., 432; State v. Brittain, 80 N. C., 481; State v. Jones, 87 N. C., 547; State v. Neville, 6 Jones, 423; State v. Boon, 82 N. C., 637; Bencher v. Wynne, 86 N. C., 268, cited).</p>

This was an INDICTMENT for murder, tried before PhilU/ps, Judge, at March Term, 1887, of Oeange Superior Court. The prisoners were convicted of manslaughter, and from the judgment thereon appealed.

This was a criminal ACTION, tried before Graves, Judge, at Fall Term, 1886, of Cleveland Superior Court. The defendant was indicted under the statute for selling liquor to a minor.

<p>This was an indictment for burglary, tried before Phillips, Judge, at Spring Term, 1887, of Durham Superior Court.</p> <p>The defendant was convicted, and from the judgment thereon pronounced against him he appealed.</p> <p>The facts are stated in the opinion.</p>

<p>This was an indictment for arson, tried before Qilmer, Judge, at May Term, 1887, of Iredell Superior Court.</p> <p>The part of the indictment material here charges that the prisoner, “ a certain dwelling-house, belonging to one J. W. Brawley, and in the possession of one Joe Allison and by him occupied, there situate, feloniously, wilfully and maliciously did set fire to,” burn and consume, &c.</p> <p>The counsel for the prisoner, in his argument to the jury, commented on the nature of the crime charged, and among other things said, “that the penalty of death for arson was a severe punishment, and therefore asked the jury to consider the evidence well before they found a verdict which would take away the life of the prisoner.”</p> <p>The Solicitor for the State, who concluded the argument, commented fully and at considerable length upon this part of the argument for the prisoner.</p> <p>The Judge, at the commencement of his charge, after stating that the prisoner was charged with the crime of arson, “ one of the highest crimes known to our law,” and further in the introductory part of his charge in connection with words and language calculated and intended to caution the jury against any prejudice against the prisoner, remarked that he was charged with “ a dastardly crime.” The prisoner excepted to this remark.</p> <p>There was a verdict of guilty, and the prisoner moved in arrest of judgment:</p> <p>“1st. Upon the ground that the bill did not charge the house burnt as the dwelling-house of Joe Allison, nor of any one, when the Solicitor argued that it was the dwelling-house of J. W. Brawley, and read authorities in support of that contention; and,</p> <p>2nd. Upon the ground that the bill does not charge that the burning was done with the intent to injure any one, which prisoner’s counsel contended was a necessary averment.”</p> <p>The Court overruled the motion in arrest of judgment, and gave judgment of death against the prisoner, from which he appealed.</p>

CRIMINAL ACTION, tried before Meares, Judge, at March Term, 1887, of the Criminal Court of New Hanover county. The indictment charged that the defendant “feloniously,, wilfully, maliciously and unlawfully did set fire to a certain house, used as a shop and store, then and there situate,” &c. On the trial there was a verdict of guilty.

IndictmeNT, tried before Shepherd, Judge, at the Fall Term, 1887, of Chatham Superior Court.

This was an INDICTMENT for larceny, tried before Connor, Judge, at October Term, 1887, of Robesok Superior Court. The defendant was charged with having stolen turpentine, the property of one Wm.

The defendant was tried upon an indictment for the murder of Tempy S. Jones, his wife, before Shipp, Judge, at the Spring Term, 1887, of the Superior Court of CraveN.

CrimtNAL action, tried before Clark, Judge, at Pall Term,. 1887, of Cabarrus Superior Court. Upon the special verdict the Court, being of opinion that the defendants were guilty, pronounced judgment against, them, from which they appealed. The facts ar.e stated in the opinion.

Criminal action, tried before Clark, Judge, at Fall Term, 1887, of Cabarrus Superior Court. The defendant is charged in the indictment with the offence of selling spirituous liquors within a territorial boundary in the county of Cabarrus, within which the sale of such and other classes of liquors is prohibited by the supposed statute (Pr.

CRIMINAL ACTION, tried before Glarlc, Judge, at Pall Term, 1887, of Cabarrus Superior Court.

This was an indictment, tried before Shepherd, Judge, at the March Term, 1887, of Wake Superior Court.

Ceiminal ACTION, tried before Gilmer, Judge, at Fall Term, 1887, of Yadkin Superior Court.

The defendants, Mike Shelly, Delia Bryson and John Daneheart, were indicted and tried at the September Term, A. D. 1887, of the Criminal Court of New Hanover County,, upon a charge of an assault and battery upon one Gustave Friberg. Before the jury were empanelled the defendants all entered a plea of “former conviction/’ and also excepted to'the jurisdiction of the Court, alleging that no deadly weapon was used and that there was no serious damage done.

CRIMINAL ACTION, tried before Clark, Judge, at December Term, 1887, of DavidsoN Superior Court. The indictment, found by the grand jury at June Term, 1887, of Davidson Superior Court, charges the defendant with violating the Revenue Act in selling spirituous liquors without first obtaining a license therefor, specifying the of-fence in four separate counts.

<p>Constitution — Statute— Convicts — Judge’s Charge — Husband and Wife.</p> <p>1. While it is erroneous for the Court, where,the testimony is conflicting, to single out one witness and make the case turn upon the truth of his statement, without submitting the aspect presented by the other evidence : yet if the conflicting statements are put side by side and the jury instructed that if they believed the 'facts to be as testified by one of the witnesses they should so find, it is not error.</p> <p>2. A husband will be justified in the use of such force as may be necessary to prevent another from taking his wife from him ; otherwise, if she goes of her own volition.</p> <p>3. The statutes authorizing the working of persons convicted of criminal offences upon the public roads, under the supervision of the county authorities, is not unconstitutional.</p> <p>{Anderson v. G. F. St. Go., 64 N. C., 399; Willey v. Gatling, 70 N. C., 410; Jackson v. Goin'rs, 76 N. C., 282, and Grutehfield v. Railroad, Ibid., 320, cited).</p>

<p>Evidence — Larceny— Witness.</p> <p>1. Where it appeared uiDon the trial of an indictment for larceny that a store-house had been broken open and property taken therefrom about midnight; that upon a witness, who was passing, calling out, shots were fired at him ; that the defendant lived near by and had left his house after supper, but returned at about the time the shots were fired; that he remarked next morning he “did not reckon anybody would run in on anybody else again in a close place but there was no other testimony connecting him with the larceny ; Held, that the evidence was too slight to be submitted to the jury.</p> <p>2. Any removal of the property alleged to be stolen is a sufficient aspor-tation.</p> <p>3. It is not error to refuse to instruct the jury that they ought not to convict upon the testimony of a confessed felon, who is under indictment, and who testifies under a promise of immunity from punishment. The testimony of such witness that the defendant admitted to him that he was present at the commission of the crime charged against him, is some evidence to go to the jury.</p> <p>(State v. Atkinson, 93 N. 0., 519; State v. Powell, 94 N. C., 965; State v. McBryde, 97 N. 0., 893; State v. White, 89 N. C., 462; State v. Graige, Ibid., 475: State v. Haney, 2 D. &. B., 390, and State v. Miller, 97 N. C., 484, cited).</p>

Criminal action, tried before Philips, Judge, at January . Term, 1887, of the Superior Court of Granville County. There was a verdict of guilty, and from the judgment thereon the defendant appealed. The defendant is charged with having obtained from the county authorities of Granville an order for the payment of money by means of false pretences and fraudulent representations, in violation of §1025 of The Code.

The defendant and one Louisa Austin were indicted for fornication and adulteiy, and tried before Clark, Judge, at the August Term, 1887, of Iredell Superior Court.

<p>Indictment — Larceny—Bv/rglary.</p> <p>An indictment, containing- but one count, alleging that the defendant “unlawfully and wilfully did enter, in the night-time, a gin-house, in which there was cotton, meal and other personal property, with intent to commit the crime of larceny,” and that “ he was found by night in said house, with intent to commit the crime of larceny,” sufficiently charges both of the offences prohibited by £§996 and 997 of The Code.</p> <p>(Staté y. Brown, 2 Wins., 04; State v. Fore, llred., S78; State v. Stanton, Ibid., 424, and State v. Harper, 64 N. 0., 129, cited).</p>

INDICTMENT for an assault and battery, tried before Merri-mon, Judge, at July Term, 1887, of Wake Superior Court. The defendant is indicted for an assault upon Joseph Weaver, a boy fifteen years of age, with a deadly weapon. He pleaded not guilty; and the ground of defence was, that the boj' named was his apprentice, a bad and incorrigible boy, and he had the right in good faith to correct him by whipping, as he did, and that the punishment inflicted was not unreasonable.

Crimi.nal action,, tried before Meares, Judge, at July Term, 1887, of the Criminal Court of New Hanover County. The defendant, Charles Debnam, was charged in a warrant, issued by the Mayor of the City of Wilmington, for a violation of Section 1 (one), Article 7th, of the ordinances of the said city.

<p>CrimiNal ACTION, tried before Merrimon, Judge, at July Term, 1887, of Ware Superior Court.</p> <p>The facts are fully stated in the opinion.</p> <p>cited State v. Lowrey, 74 N. C., 121; State v. Lockyear, 95 N. C., 633; State v. Packer, 80 N. C., 439; State v. Oliver, 26 W. Va., 422; State y. Shearer, 2 Col. (Tenn.), 323; lompkins v. Taylor, 21 N. Y., 173; Ewarris on Stat., 194; The Gode, §§983,1076, 2087, 3440, 3671, 3110; Laws 1887, Ch. 135.</p> <p>The question presented is, do the words “ spirituous liquors,” as used in §§3113 and 3116 of The Code — Local Option Act — embrace wines and malt liquors? That they do not has been declared by the most eminent text writers and a long and uniform line of decisions by the highest and ablest Courts, in the Union. Bishop on Crim. Law, Yol. II, §1145; Wharton on American Crim. Law, §. ; Webster’s and Worcester’s Dictionaries — “Spirits;” State v. Thompson, 20 West Va., 674; State v. Adams, 51 New Hampshire, 568; Walker v. Prescott, 44 New Hampshire, 511; Smith v. The State, 19 Conn., 493; Commonwealth v. Herrick, 6 Cushing, 465, 468; . Commonwealth v. Gray, 2 Gray, 501; State v. Lump, 16 Mo., ; Fritz v. The State, 1 Bax. (Tenn.), ; Caswell & Hill v. The State, 2 Hump. (Tenn.), 402; State v. Moore, 5 Blackford (Ind.l, 118; State v. Brittain, 89 N. C., 574; State v. Packer, 80 N. C., 289; Rizerv. Randle-man, 5 Jones, 428.</p> <p>This distinction between spirituous and vinous and malt liquors is clearly drawn in all the revenue acts in North Carolina. The Code, Yol. II, §3701, and Ch. 175, §34, Acts 1885.</p> <p>In the recent case of State v. Nash, decided at the last term, the Court follows the overwhelming weight of authority above cited, and intimates as plainly as possible that vinous and malt liquors are not included in the prohibition of the sale of spirituous liquors. The only case to be found in the books which seems to put a different construction on the term spirituous liquors is State v. Lowry, 74 N. C., 121. It is submitted, however, that this case will no longer be followed. In the first place, it stands alone, there being no other case, either in England or America, that supports it, while it is directly opposed to the great weight of authority above cited; secondly, as an authority it is very much shaken by the intimation in State v. Nash, supra; for the Court would never have made an intimation directly opposed to the decision of that case if they intended to follow it; and, thirdly, it is submitted that the case is not sound on principle. In the first place, it construes a criminal law most strongly against the accused. The Legislature has, by plain and unambiguous language, made the sale of one commodity, criminal — the the Court, by construction, makes the sale of another article criminal. In the second place, it leaves to the jury the duty of construing the meaning of the act, when this duty should be performed by the Court; and thirdly, we submit that the rule laid down by that ease is on its face impracticable. The Court say that the test of. whether liquor is spirituous, and so prohibited, is whether the liquor will cause intoxication. At the same time the Court admits that cider will intoxicate, but that it is not included in the act, so that in charging the jury under this case, a Judge would have to say to the jury: “I charge you that the test of whether a liquor is or is not spirituous, is whether it will intoxicate; but I further charge you, that although you believe that cider will intoxicate, yet if you find that the defendant has only sold cider, you must acquit.” Reductio adabsurdum.</p>

CRIMINAL ACTION, tried before Clark, Judge, at August Term, 1887, of Iredell Superior Court. The indictment framed under the statute (The Code, §1113,} is for an attempt, in a wanton and malicious manner, and by the uttering and publishing a slanderous charge imputing sexual criminal intercourse, to destroy the reputation of an innocent woman.

<p>CRIMINAL action, tried at April Term, 1887, of Mecklen-burg Criminal Court, before Meares, Judge.</p> <p>The defendant is indicted for obtaining credit and supplies for plantation uses in cultivating crops, to be raised of cotton, corn and cotton seed on his land, during the year 1886, furnished pursuant thereto, and to secure which a mortgage of said property was executed to them, by means of false and fraudulent representations, made to Philip Schiff, a member of the firm from whom the supplies were procured, that no prior mortgage of the crop had been made.</p> <p>The indictment contains three counts, substantially the same, varying in unimportant particulars only, and presenting the offence in different aspects.</p> <p>The defendant, upon his arraignment,'pleaded not guilty, and upon the trial the State, after offering evidence of the alleged false representations and pretences, in reliance upon which the goods were furnished, introduced certain documentary proofs, to-wit:</p> <p>1. A mortgage deed, executed on April 21st, 1886, by one J. W. Rice and the defendant to said partnership of Schiff & Co., reciting an indebtedness by note in the sum of eighty dollars, due on the first day of October following, and conveying, in the words of the deed, “all our crop of cotton, corn and cotton seed to be raised by either of us during the year 1886, on the place of S. E. Garris — no other mortgage on the same property,” upon certain trusts therein specified, and with a power of sale, if the debt was not discharged at maturity, for its payment.</p> <p>2. A mortgage deed, made on March 2d, 1886, by the defendant to the firm of R. M. White & Co., reciting a debt by note for two hundred and fifteen dollars, due on the 15th day of October thereafter, and in which is conveyed for its security, and with a like power of sale in case of default, “ these articles of personal property, to-wit: one mouse-colored mule, one red, muly cow, one red heifer, and all the crop of corn and cotton raised by me the present year.”</p> <p>After much testimony had been heard by the jury of what transpired between Schiff and the defendant to prove the representations, and their falsity, upon which, under the supposed security of the mortgage, the credit was given and the goods supplied, the defendant proposed to show, by parol, that the note given to Schiff & Co. was for an indebtedness of Rice, and was signed by him as a surety, without seal, and that the mortgage extended to their joint crop.</p> <p>The evidence was held to be incompetent, and refused, to which the defendant excepted.</p> <p>The defendant insisted that the mortgage to R. W. White and Co. was inoperative to pass any title to the crops of cotton* and corn mentioned in the second mortgage, because the land 011 which they were to be raised was not directly nor by reference described and identified.</p> <p>The Court held such to be the effect of the mortgage upon its face, but admitted parol evidence to supply the defect in the description, and it was accordingly shown by the testimony of one Porter that the defendant had only one place in the county, where in 1886 he lived, worked and planted cotton.</p> <p>The verdict was against the defendant, and from the judgment he appealed, assigning as errors:</p> <p>1. The ruling out of the evidence offered to show his relationship to the transactions with Schiff & Co. and the extent of the mortgage security.</p> <p>2. The refusal to admit testimony to prove that when the indictment was found the crop was ungathered, and that after it was gathered the debt due Schiff & Co. was paid therefrom in full.</p> <p>3. The receiving of proofs outside the deed to correct its imperfect description, and show what crops were meant, so as to give the deed efficacy and operation.</p>

<p>INDICTMENT for liquor selling, tried before Shepherd, Judge, .at March Term, 1887, of Wake Superior Court.</p> <p>The facts are stated in the opinion.</p>

<p>CRIMINAL action, tried before MacRae, Judge, at Spring Term, 1887, of Caldwell Superior Court.</p> <p>The indictment charges that the defendant “ did assault, beat, and seriously injure one Mary E. Livingston,” &c.</p> <p>* The defendant moved to quash the same, upon the ground that it failed to charge “wherein the serious injury consisted.” The Court denied the motion, and the defendant pleaded not guilty.</p> <p>On the trial, the evidence went to prove that the offence charged was committed within six months next before the beginning of the action, and an “ indecent assault upon the person of the prosecutrix.”</p> <p>The jury rendered a verdict of guilty; thereupon the defendant moved in arrest of judgment, assigning, as ground for the motion, that assigned for the motion to quash the indictment.</p>

<p>CRIMINAL ACTION, heard by Shiyp, Judge, at Spring Term, 1887, of Craven Superior Court, upon defendant’s motion to quash. The motion was allowed, and the State appealed.</p>

<p>CRIMINAL action, tried before Merrimon, Judge, at July Term, 1887, of Wake Superior Court.</p> <p>The facts are stated in the opinion.</p>

<p>CRIMINAL action, tried before Gilmer, Judge, at July Term, 1887, of Rockingham Superior Court.</p> <p>The facts are stated in the opinion.</p>

This was an indictment for perjury, tried before Boykin, Judge, at Spring Term, 1887, of Wilkes county.

<p>Criminal action, tried before Avery, Judge, at Spring Term, 1887, of Beaufort Superior Court.</p> <p>The defendant was convicted, and appealed.</p> <p>'I he defendant was indicted for selling cotton in violation of §1006 of The Code, and tried before Avery, Judge, at the Spring Term, 1887, of the Superior Court of Beaufort County.</p> <p>The indictment charges that, “ John H. Whiteacre, in Beaufort County, on the 1st day of November, 1886, a certain quantity of seed-cotton, to-wit, twenty pounds, the said cotton not then and there being baled, and being a less quantity than is usually baled, between the hours of sunset and sunrise, unlawfully and wilfully did buy from Rhoden Daniels, at a certain price, contrary to the statute,” &c.</p> <p>Upon the trial the defendant testified in his own behalf, and, while being examined, a plat or diagram of the premises was offered to show the position of the yard, houses, cotton, &c., for the purpose of illustrating the position of the defendant, and to show that he could not have seen or received the cotton.</p> <p>Counsel for the defendant proposed to show that this was an exact plan of the defendant’s premises.</p> <p>The Solicitor for the State objected, upon the ground that no notice was given of the making of the plat, and that it was ex parte and irregular.</p> <p>The objection was sustained and this was assigned as error.</p>

<p>CRIMINAL action, tried before Merrimon, Judge, at September Term, 1887, of Wayne Superior Court.</p> <p>The defendant was indicted for haying failed, as a merchant, to deliver a “sworn statement” of his purchases of goods made, &c., to the Register of Deeds of the county of Wayne, as required by the statute, (Acts 1885, ch. 175, §25,) and he pleaded that theretofore he had been duly convicted of the same offence before a justice of the peace of the same county.</p> <p>Upon the trial of this plea the jury rendered a special verdict, from which it appeared that the defendant had been held to answer criminally, and convicted of the same of-fence charged in the indictment, more than two months next before he was arrested and held to answer to the latter; that, how.ever, he had been presented by the grand jury of said county for said offence before he was so tried by the justice’s Court, but the fact of such presentment was then unknown either to the defendant or the said justice</p> <p>Upon the facts found the Court was of opinion that the defendant had been duly convicted before the justice of the peace; a verdict was entered accordingly; the plea was sustained ; there was judgment for the defendant, and the Solicitor for the State appealed to this Court.</p>

This was an indictment for perjury, tried before Boykin, Judge, at May Term, 1886, of Robeson Superior Court. At Spring Term, 1884, of the Superior Court of Robeson County, an indictment then pending against J. C. Atkinson, Alta Atkinson, R. R. Jones and Benj. Long, for a forcible trespass, was tried.

<p>Jurisdiction — Justices of the Peace.</p> <p>Where, upon the return of a warrant charging an offence of which a justice of the peace had exclusive jurisdiction, the record showed that the defendant waived a trial, and thereupon it was adjudged that he enter into bond for his appearance at the next term of the Superior Court, and at said term the record showed that “ upon the foregoing warrant and appeal the case came on to be tried,” the defendant pleaded not guilty, a verdict and judgment thereon against him; Held, that the Superior Court had not the acquired jurisdiction.</p> <p>(State v. Wilson, Phil., 287, cited).</p>

INDICTMENT for larceny and receiving, tried before Gilmer, Judge, at July Term, 1887, of Rockingham Superior Court. The defendant is charged in the indictment, in a first •count under the statute {The Code, §1066,) with the larceny of a horse, and in a second count under the statute {The Code, §1074,) with receiving the same horse, knowing him to have been stolen, and both counts conclude against the statute.

<p>This is a criminal action, which was tried before Shepherd, Judge, at March Term, 1887, of Waile Superior Court.</p> <p>The indictment contains three counts, the first two of which charge a violation of the Local Option law in Raleigh township, adopted at an election held on the 7th of June, 1887, (1886) and the third, for retailing without license.</p> <p>The third count was abandoned.</p> <p>Clara Haywood, a witness for the State, testified: “ I bought liquor of the defendant, at his store in Raleigh, during last December. I bought three times during the month. I got ten cents’ worth each time. 1 did not get as much as a quart.”</p> <p>The State then introduced the record of the meeting of the Board of County Commissioners, at which the votes of the election on prohibition was canvassed, a copy of which, marked “A,” is sent up with the record; and also the return of the judges of election, a copy of which, marked “B,” is filed with the record; also the original returns of the election ; but these were not read.</p> <p>It was admitted that these were genuine, and that the subscribers were the judges of the election, appointed therein.</p> <p>The whole of the documentary evidence was objected to because the election was not held according to law, and that neither the judg s of the election or the County Commissioners-had authority to canvass or to declare the result; also, because the indictment failed to charge that there had been any declaration as to the result of said election.</p> <p>The Court admitted the evidence, and the defendant excepted.</p> <p>The record of the proceedings of the Board of County Commissioners, sent up as part of the case, recites that, “in conformity to an order made at the meeting of the Board of County Commissioners on the 5th day of March, 1886, the Board began the canvassing of the votes cast at the election held on the 7th instant on the question of the sale of spirituous liquors in the towns and townships in the county in which elections had been ordered by the Board.” Then follows at length, and in full, the action of the Board upon the various questions and objections raised before it, followed by an abstract of the returns of the judges of elections from the several wards and precincts of the City of Raleigh and Raleigh township, made to the Board of County Commissioners, giving the number of votes cast in each ward and precinct for “Prohibition” and for “License,” making the total number of votes cast for Prohibition at said election in Raleigh township 1260 votes, and the total number of votes cast for License 1202 votes, there being a majdrity of 58 votes at said election for Prohibition.</p> <p>These returns were certified to the Board of County Commissioners of Wake, under the hands and seals of the Canvassing Board, composed of one member selected by the registrar and poll-holders from each of the respective wards and voting precincts of Raleigh and Raleigh township, and the result was proclaimed at the court-house door.</p> <p>There was evidence tending to show that there had been no election reversing the result of the said election.</p> <p>The defendant asked the Court to give the following instructions: “That there is a total absence of proof of the' condition precedent to the election, to-wit, the petition of one-fourth of the qualified voters of said township, made to the Commissioners, asking that said election bo held, and that the Commissioners examined and found that the requisite number of qualified voters had signed said petition, and that the election was ordered in consequence of said petition and said examination, and therefore the defendant .should be acquitted. AIsq, he insisted that the State ought to show that the liquor was not sold upon the prescription .of a physician and for medical purposes.”</p> <p>The Court declined to give the instructions, and the defendant excepted.</p> <p>The Court, after explaining to the jury the allegations in the bill in reference to the election, charged that the original returns not having been read in evidence, it did not appear that they conflicted with the statements contained in the exhibits A. and B., and that upon these'proceedings they would be warranted in finding that the question of Prohibition had been submitted to the qualified voters of Raleigh township, and that a majority had voted for Prohibition, and the result, as declared, alleged in the first and second counts; that if they were fully satisfied of this, and that the defendant sold liquors, as stated by Clara Haywood, they would convict the defendant upon' either of the said counts — provided no election had been held reversing the result of said alleged election.”</p> <p>There was a verdict of guilty, and the defendant moved in arrest of judgment, for that the said counts did not charge an indictable offence. Motion overruled, and the defendant appealed.</p>

Indictment for larceny, tried before Graves, Judge, at Spring Term, 1887, of Transylvania Superior Court. There was a verdict of guilty; judgment; and the defendant appealed. The facts are stated in the opinion.

This was a criminal action, tried before Ciarle, Judge, at January Term, 1887, of RobesoN Superior Court.