Volume 99 — North Carolina Reports

Judicial Sales — Action to Recover Land — Evidence—Record. Civil actioN to recover land, tried before Avery, J., at. Spring Term, 1887, of Chowan Superior Court. The plaintiffs claimed title as heirs at law of T. J. Bland,, deceased, and the defendant claimed under a purchase from.

<p>1. Clerks of the Superior Court are liable upon their official bonds for all losses sustained by reason of their failure to require proper security upon guardian bonds.</p> <p>S. The record of the appointment of a guardian is sufficient evidence of such appointment.</p> <p>3. Neither the clerk nor his sureties will be beard to deny that a guardian, appointed by the former, improperly received funds which he is shown to have taken possession of for his ward.</p> <p>4. Where a guardian keeps no accounts and makes no report of his trust, as a general rule he will not he allowed commissions.</p> <p>5. The measure of damages in an action upon a clerk’s or guardian’s bond for a failure to perform any duty required of them is the amount of the principal received, with compound interest at six per cent, until the ward arrives at full age.</p> <p>6. A surety on a guardian bond, the principal being dead, is a competent witness to prove the insolvency of the bond.</p>

Injunction — Irreparable Damage — Receiver. This was an APPLICATION for an injunction, heard at Chambers, in Tarboro, on' 17th August, 1887, before PhilipsT J. The action was pending in Washington County.

Appeal — Motion to Dismiss — Rules of the Supreme Court. This was an issue of divisavit vel non, tried before Shepherd, J., at Pall Term, 1887, of Chatham Superior Court. In this Court the appellees made a motion to dismiss the appeal.

Deed — Easement—Boundary—Variance. This is a civil ACTION, which was tried before Avery, J, 'at Spring Term, 1887, of Gates Superior Court. ■ This action is prosecuted to recover damages for trespasses alleged to have been committed on the plaintiff’s land, the title to which is derived under a deed made on January 2, 1869, by the defendant Richard E. Parker to Joseph J. Jones and William T. Jones, and subsequent conveyances from them to the plaintiff.

Exceptions — Reference—Levy—Fraud—Evidence—Execution Sale. Civil actioN, tried, before Avery, J., upon exceptions to referee’s report, at February Term, 1887, of Beaueokt Superior Court.

Equity — Evidence—Mistake of Law — Correction of Deed. This is a civil action, tried before Merrimon, J., upon exceptions to the report of a referee, at September Term, 1887, of Wayne Superior Court.

Construction of Deed — Descent—Condition. Civil ACTION, tried before Avery, J., February Term, 1887, of Beaufort Superior Court.

Deed — Registration—Probate—Commissioners of Affidavits— Purchasers— Creditors. Civil actioN, tried before Avery, J., at the Spring Term, 1887, of the Superior Court of the County of Dare. By consent a trial by jury was waived and it was agreed that issues of fact as well as of law should be tried by the Court.

Bill of Exchange— Order — Draft—Acceptance— Contract. Civil actioN, tried-at February Term, 1887, before Avery, J., of Beaufort Superior Court. This action began before a Justice of Peace to recover the money specified in the order sued upon, of which the following is a copy: “ April 20,1885. “ Dr. W. A. Blount will please pay E. M. Short $58.55 for value received, and oblige J. E. LORDLEY.

Assignment — Estoppel—Remval of Judgment. Civil ACTION, tried before Avery, J., at May Term, 1887, of the Superior Court of Bkaufort County. The complaint alleges the plaintiff’s testator (who died since the commencement of this action) to be the owner of a certain judgment recovered in the Superior Court of Beaufort, at Pall Term, 1869, by Samuel Windley, administrator of William S. Cordon, against Benjamin P. Tripp and William IT.

<p>Appeal — Trial by Jury — Reference—Client and Attorney.</p> <p>Civil ACTION, tried before Shipp, J, at February Term, 1888, of Wilson Superior Court.</p> <p>In August, 1882, the plaintiffs were partners doing business in the City of Baltimore, and on the 23d of that month sold and delivered to the defendants Felton & Scarboro goods and merchandise to the amount of $518.05, which sum they promised to pay, but no part of which has been paid.</p> <p>On the 21st of December, 1882, the defendants Felton & Scarboro made an assignment to the defendant Woodard of their entire stock of goods, &c., in trust to pay the debts of the firm, which are divided into two classes, the debt due to the plaintiffs being in the second or unpreferred class.</p> <p>On the same day the defendant Felton conveyed to the defendant Woodard his entire real and personal estate to be held by him in trust for the wife of the said Felton, in the manner stated in the said deed, which is set out in the pleading.</p> <p>The plaintiffs allege that the. defendant Scarboro has no estate whatever, and that the deed executed by Felton to Woodard, trustee, &c., was made by him with the purpose and intent “ to put his said property beyond the reach of his creditors and enjoy the same for his own use and comfort,” and they ask judgment for the amount due to them, &c., and among other things that the deed from Felton to Woodard, trustee, be declared fraudulent and void as to them, &c.</p> <p>The defendants answer admitting the debt, and that it has not been paid, but denying the other allegations of the complaint, and averring the bonafides of the deed of trust and setting out in detail the consideration upon which it was made.</p> <p>At Fall Term, 1886, the following order, signed by counsel for plaintiffs and defendants, was made:</p> <p>“By consent of counsel this cause is referred to W. R. Allen to decide all issues therein under the Code.”</p> <p>At the Fall Term, 1887, the referee filed his report and the defendants filed a number of exceptions thereto, all of which appear in the record.</p> <p>The plaintiffs’ motion was that the report of the referee be®confirmed. The Court expressed the opinion that the pleadings raised issues involving questions of fraud, and that the cause was improperly referred, and thereupon denied the motion, declined to pass upon the exceptions and rendered the following judgment:</p> <p>“This cause coming on to be heard upon the report of the referee, and the Court being unwilling to proceed to judgment upon the report, denied a motion to confirm said report, and ordered and adjudged, upon motion of John E. Woodard, counsel for the defendants, that the order of reference heretofore made be stricken out, and that issues be formulated from the pleadings, to be submitted to a jury.”</p> <p>The plaintiffs excepted for that:</p> <p>“ 1. The Court committed error in denying the motion to-confirm the report.</p> <p>“2. The Court committed error in declining to hear, pass upon and overrule the exceptions filed by the defendants.</p> <p>“ 3. The Court committed error in striking out the consent reference heretofore made in this cause, and submitting the cause to a jury.</p> <p>“4. The Court committed error in holding that there were any issues to be submitted to a jury, whereas it appeared by the report of the referee that the defendants demurred to the plaintiffs’ evidence, and thereby no questions of fact were raised.</p> <p>“ 5. The Court committed error in declining-to hold that, upon the testimony, the plaintiffs were entitled to recover.”</p> <p>Exceptions overruled. Plaintiffs appealed.</p>

Constitution — Injunction—Taxes—Statute. This was an application foe. an injunction, made in an .action pending in Halifax Superior Court, and heard before Graves, J., on the ... day of January, 1888.

Constitution — Taxation—Pleading—Statute—Injunction. Civil ACTION pending in Carteret County, and heard upon motion for an injunction before Philips, J., at Chambers in Kinston on the 16th November, 1887, brought by the plaintiff in behalf of himself and all other tax payers, &c., to restrain and prevent the collection of certain taxes which are alleged in the complaint to be in excess of the taxes allowed by the Constitution and laws of the State to be levied for State and…

This was an action to restrain the COLLECTION of taxes, heard upon motion for-injunetion -before Philips, X, at Fall Term, 1887, of Sampson Superior Court.

<p>Execution and Judicial Sales — Statutes—Terms of Court.</p> <p>This is a civil action to recover land, and was tried before Shipp, J., at Fall Term, 1887, of Vance Superior Court.</p> <p>Issues of fact having been raised by the pleadings, putting directly in question the plaintiff’s title, he put in evidence and relied upon a deed of conveyance executed to him by the Sheriff' of the County of Vance, dated July 2d, 1883, purporting to convey to him the land in question in pursuance of a sale thereof made by that Sheriff under and by virtue of an execution issuing from the Superior Court of the County named, commanding a sale of the land. The defendant objected to the admission of this deed in evidence, upon the alleged ground, among others, that it was void, “ because the sale at which plaintiff purchased, and under which the deed was executed, was made on the first Monday in June, 1883, and that a regular term of the Superior Court of Vance County was held during that month, to-wit: on the second Monday, and that the sale could only be made during the first three days of the term.”</p> <p>The Court overruled the objection, and this is assigned as error. There was a verdict and judgment for the plaintiff, and the defendant appealed to this Court.</p>

Eviden.ee — Payment—Burden of Proof— Qontract. This was a civil action, originally commenced in GraN-ville County-, before a Justice of the Peace and carried by appeal to the Superior Court, where it was tried before Philips, J., at May -Term, 1887. ■ • ■ ' There-was judgment for - the defendant, from which the plaintiff appealed. The facts are stated in the opinion.

Deed — Description—Evidence. Civil ACTION,-tried before- Merrimon, J], at Spring Term, 1887, of Greene Superior Court. : ' The following is a copy of the material part of the case stated on appeal: ■ “ The action was brought to foreclose a mortgage.

Appeal — Certiorari—Lost Record. This is an APPLICATION pop, the writ op certiorari, to be directed to the Clerk of the Superior Court of Bertie County, •commandiug him to send up a transcript of the record in this cause, which had been tried at the Spring Term, 1882, before Bennett, J. It was heard upon petition, answer and affidavits. The action was tried at Spring Term, 1882, and upon the verdict, judgment was rendered for the plaintiff, and the defendant appealed.

Specific Performance of Contract — Statute Frauds — Better-ments — License—Parties. Civil action, tried before Avery, J., at Fall Term, 1887, of the Superior Court of Edgecombe.

Implied, Contract — Evidence—Judge’s Charge. Civil ACTION, originally commenced before a Justice of the Peace for the County of Durham, and carried by appeal to the Superior Court of that county and tried before Merrimon, J, at February Term, 1888. On the 5th of August, 1886, the defendant entered into a written contract with one Joseph Ransley, by which Ransley was to build for him a dwelling house in the town of Durham.

<p>1. The statutes enacted to cure irregularities in respect to the jurisdiction of the Courts in special proceedings are valid.</p> <p>2. The recital in the record of a cause that the defendants therein had been served with process, is evidence that the service was made and the Court acquired jurisdiction of the persons. Such record cannot be attacked collaterally; if assailed for irregularity it should be by a motion in the cause ; if for fraud, and the action be ended, by independent suit.</p> <p>3. The Sheriff is not required to attest the report of the jury to allot dower.</p> <p>4. Whether the return of process by a Deputy Sheriff in his own name is sufficient, Qucere.</p>

<p> Proceedings Supplemental to Execution. </p> <p>This was a motion to dismiss proceedings SUPPLEMENTAL to execution, heard upon appeal from the Clerk of the Superior Court of Wake County, by Shipp, J., at Chambers, January 20th, 1888.</p> <p>The plaintiff having recovered judgment before a Justice •of the Peace in order to sue out supplementary proceedings for its enforcement against the debtor, offered an affidavit in the following terms:</p> <p>“ 1. That on November 19th, 1887, a judgment was duly rendered by a Justice of the Peace in Wake County, in favor • of plaintiff and against the defendant for the sum of $252.38.</p> <p>“ 2. That on December 21st, a transcript of the judgment was docketed in the Superior Court of Wake County, andón that day an execution duly issued from said Court for the ■ collection of said judgment, and said execution is now in the hands of the Sheriff of Wake County.</p> <p>“3. That the judgment debtor Arrington resides in Wake •County and has property which she unlawfully refuses to .apply towards the satisfaction of said judgment. That at .Term, 1887, of, the Superior Court of Vance County the ífeaid Arrington recovered a judgment for the sum of $9,247, with interest, in the action pending in said Court entitled .Pattie Arrington v. W. N. Arrington et als , which judgment and recovery she refuses to apply to the payment of the judgment in favor of said Hackney Bros., plaintiffs in this this proceeding.</p> <p>“ 4. That affiant is one of the plaintiffs in said action of Hackney Bros. v. Pattie Arrington.</p> <p>“ 5. That there are no other proceedings supplementary to execution pending against said Pattie Arrington, to the best of affiant’s information and belief.”</p> <p>The order for the examination of the debtor having been issued, and the hearing been resumed before the Clerk on December 13th, 1887, the defendant’s counsel moved to vacate the order on the ground of insufficiency of the affidavit upon which it was made, and the motion being denied, the defendant appealed to the Judge.</p> <p>The examination thereupon proceeded, and the following interrogatory was propounded:</p> <p>“ What property have you, real or personal, pr both, other than that set apart to you, or to which you are entitled as homestead or personal property exemption ?”</p> <p>The witness declined to make answer, for the reason that until the ruling upon the subject matter of the appeal, the examination must be suspended in order to await the result; whereupon a continuance was ordered until December 29th, and meanwhile the restraining order, forbidding the debtor “ to pay, receive, transfer, dispose of, or in any way interfere with her property not exempt from execution,” was kept in force, and from this ruling the defendant again appealed.</p> <p>Upon the hearing before the Judge he declared the affidavit essentially defective, and that the motion to dismiss ought to have been sustained. From this judgment the plaintiffs appealed to this Court.</p>

<p>Appeal — Clerk of Superior Court — Certiorari.</p> <p>The facts are stated in the opinion.</p>

Guardian and Ward — Husband and Wife — Reference. This is a uivil ACTION; which was tried upon exceptions to referee’s report, before Merrimon, J., at April Term, 1887, of Franklin Superior Court. Joshua Paschall died in the year 1856, and in December administration on his estate was granted to Robert Paschall.

<p>1. It seems that the proper way to obtain relief against a judgment of the Supreme Court dismissing an appeal, where the dismissal turned upon a question of law, is by a petition to rehear and not by a motion to reinstate.</p> <p>2. A motion to reinstate an appeal will not be allowed, nor will a certio-rari be granted where it appears that the appellant has lost his appeal by negligently failing to give the necessary undertaking within the prescribed time.</p> <p>3. A memorandum of the Clerk, evidently not made by the order of the Court, appearing in the record proper, will not be allowed to prevail over a distinct statement of fact in the case on appeal.</p> <p>(Davis, J., dissenting.)</p>

Condemnation of Land — Appraisement—Presumption. This is a summary proceedeng to comdemN land, which was heard upon exceptions to report of Commissioners by Merrimon, J., at Fall Term, 1887, of Nash Superior Court.

Agricultural Lien — Mortgage—Claim-and Delivery — Judgment — Contract—Lhddence. Civil ACTION for the recovery of personal property, tried before Connor, J., at March Term, 1887, of the Superior Court of Jones County. In February, 1883, the defendant Allen executed to the plaintiff an agricultural lien on the crops of corn, cotton, &c., to be raised by him “duringthe year 1883, on the lands of J. C. Parker, or elsewhere,” to secure advancements to the amount of $300.

<p>Trust and Trustees — Mortgage.</p> <p>This is a civil ACTION, heard before Merrimon, J., upon a motion for judgment upon the pleadings, at September Term, 1887, of Wayne Superior Court.</p> <p>The plaintiffs alleged in substance that the defendant corporation, in 1868, executed to Thomas Bragg, James Bryce and the defendant J. F. Pickerell, a mortgage upon its roadbed, franchise and other property to secure a bonded indebtedness of about two hundred thousand dollars; that two of the trustees, Bragg and Bryce, having died, the defendant John H. Dillard was appointed in the stead in pursuance of a provision in the mortgage; that the indebtedness thus secured has been fully paid and discharged chiefly by the delivery to the secured creditors of other bonds issued by 'the defendant corporation and secured by mortgage in the year 1887; that they are the owners or have some interest in the last named bonds, but cannot negotiate the same because the defendant trustees refuse to execute proper deeds of release and in discharge of the former mortgage. They ask that the Court adjudge that the original indebtedness is paid and the mortgage to secure it be cancelled, &c.</p> <p>The defendant corporation admits all the allegations in •the complaint and does not resist the relief demanded, but the defendant trustees, while admitting the payment of the bonds as alleged, aver that by the terms of the mortgage they are entitled to compensation for their services, which is a lien upon the property conveyed, and' which has never been paid; and that they ought not to be required to execute any release until their demands are satisfied.</p> <p>“The answer and replication were filed September 16,1887. On same day'the plaintiff moved for judgment, which was resisted by defendant Pickerell on the ground that the matter was not properly before his Honor at this term, and that no judgment could be rendered until the determination of the action. His Honor made the following order or judgment:</p> <p>“This action coming on to he heard at this term of the Court, upon the complaint and answer herein, by which it is admitted that the mortgage debt secured by the mortgage of 1868 has been paid: It is ordered and adjudged that upon the plaintiff’s filing, or causing to be filed, with the Clerk, to be approved by him, a justified bond in the sum of $10,000, to secure the payment of such sum as Pickerell shall recover in this action, as compensation as trustee, the mortgage or deed of trust, executed in 1868 by the Atlantic and North Carolina Railroad Company to J. F. Pickerell, James Bryce and Thomas Bragg, shall be deemed to be fully discharged and satisfied, and the same shall be cancelled; and the Clerk shall, upon the filing said justified bond, cause to be recorded in the Register’s office of Wayne, Lenoir, Jones, Craven and Carteret counties a copy of this judgment, and that the same shall have the same force and effect as a formal satisfaction of record of said mortgage or deed of trust made by the present trustees, John H. Pickerell and' John H. Hillard; and this action be retained for further directions.”</p> <p>Prom which the defendant Pickerell appealed.</p>

Pleading — Demurrer—Action to Recover Land. Civil ACTION, tried before Shipp, J., at Fall Term, 1887, of GkbeNe Superior Court.

Injun ciion — Receiver. This was a motion to dissolve a restraining order, granted in an action pending in Carteret Superior Court, heard before Avery, J., in Chambers, on December 1st, 1887.

Partnership — Negligence—Judge’s Charge. Civil actioN, tried before Craves, J., at Fall Term, 1887, of the Superior Court of Perquimans County, to recover damages alleged to have been sustained by the burning of gin, gin-house, &c. In August, 1883, the plaintiff and defendants entered into an agreement “to run a gin at G. D. Newby’s house, jointly.” The defendants were to furnish an engine and fireman, and two hands to perform any work in connection with the ginning.

Evidence— Witness — Sede—Security—Deed. Civil action, tried before Philips, J., at Fall Term, 1887, of the Superior Court of New Hanover.

<p>1. The principle upon which a cause once decided in this Court will be reheard is again stated.</p> <p>2. The duties imposed upon the Boards of County Commissioners in respect to the induction of persons to the offices to which they may have been elected are more than merely ministerial; they are quasi judicial; and for an honest error in their exercise th§ Commissioners are not liable either civilly or criminally.</p> <p>3. The ruling in same case, reported in 96 N. C., 293, is re-affirmed.</p>

Complaint — Pleading—Demurrer. This action was heard upon complaint and demuee.ee, before Philips, J., at Fall Term, 1887, of New Hanovek Superior Court.

Homestead — Bankruptcy—Cloud upon Title — Jurisdiction. Civil actioN, tried upon demurrer at March Term, 1887, of Alamance Superior Court, before Philips, J. The plaintiff was duly adjudged a bankrupt in a Court of Bankruptcy, and thereafter, according to law, the assignee in bankruptcy assigned to him his homestead in an undivided two-thirds interest in the tract of land mentioned in the complaint The complaint alleges: “ 3.

Judicial Sale — Record—Purchaser for Value — Trustee— Devise — Evidence—Fraud. DEPENDANTS’ APPEAL. Civil action, tried before Merrimon, J, at Spring Term, 1887, of Nash Superior Court. It is alleged and admitted, that on February 9th, 1883, Presley Griffin executed to the plaintiffs his note for $791.65, and that on January 27th, 1881, he executed to Wm.

<p>1. A contract, endorsed on a ticket for passage to a place and return, between a common carrier and a passenger, that the latter shall identify himself as the original purchaser of the ticket and have it stamped by the former’s agent at a particular place, is a simple contract, and any of its provisions may be waived in parol.</p> <p>2. To show such waiver it is competent to prove that the agent of the carrier, other than that at the station designated in the’contract, recognized the ticket by permitting the passenger to identify himself and by stamping it for the return trip.</p>

<p>Where the trustee, in a conveyance to secure creditors, died before fully administering the trust, and another person was appointed trustee under the statute — The Code, § 1276 — Held:</p> <p>1. The substituted trustee could maintain an action against the personal representatives, heirs at law or devisees of the deceased trustee for such portion of the trust estate as the original trustee was seized or possessed at his death.</p> <p>'2. That in such action it was not proper to make creditors of the trustee, whose demands were contested, parties, as they were not necessary to the settlement of the only issue raised, viz : the amount and custody of the unadministered trust estate.</p> <p>■(Davis, J., dissented.)</p>

Pleading — Demwrrer— Will — Estate—Injunction— Waste. Civil actioN, tried before Shipp, /., upon complaint and demurrer, at Spring Term, 1887, of Bektie Superior Court.

Removal of Actions to Federal Courts — Jurisdiction. MotioN to Remove the action to Federal Court for trial, heard before Merrimon, J., at January Term, 1888, of Dur-HAM Superior Court.

<p>1. Coverture disables a woman to enter into a binding contract, but it does not constitute a protection for her fraud, and if she repudiates her promises she must surrender what she has acquired by reason of them.</p> <p>2. Where it appeared that the father had delivered to his daughter — a married woman' — property of the value of one thousand and seventy dollars, and took her bond payable on demand for six hundred and seventy dollars, but made no charge against her upon his books of advancements. Held, (1) that the difference between the value of the property and the bond was not intended as an advancement, but a gift; (2) that although the payment of the bond could not be enforced, the obligor was not entitled to participate in the distribution of her father’s estate until she paid it or submitted to have it charged against her.</p>

Municipal Corporations— Taxation — Penalty— Ordinance. This action was originally commenced before the Mayor of the.town of Winston by a warrant issued upon complaint against the defendants for violating an ordinance of the town relating to taxes, and carried' by appeal to the Superior Court of Forsyth County, wherein it was tried before McRae, J., at October Term, 1886.

Contract — Specific Performance. Civil ACTION, tried before Clark, J., at November Term, 1887, of Rowan Superior Court. It appeared that George H. Gheen died testate in the county of Rowan on the-21st day of January, 1887, and thereafter'the defendants duly qualified as the executors of his will, which latter was duly proven.

Claim and Delivery — Judgment—Costs: Civil action, to recover personal property, tried before Clark, J., at May Term, 1887, of ANSON Superior Court. The summons was issued in May, 1881, and at the same time the plaintiff having filed the requisite affidavit and undertaking, the Sheriff was directed to take the property mentioned therein and deliver it to the plaintiff, as provided in § 321, et sequiter of The Code, and which was done as appears by the Sheriff’s return.

<p>Devise of land to wife for life, and after her death one half to one of testator’s daughters and the other half to H and wife (the other daughter), and their children. There were seven children living at the time of testator’s death. H and wife sold, and the defendant holds under mesne conveyances from them; Held, that the children (plaintiffs) were tenants in common with their parents, and having asserted their claim within twenty years, the statute is no bar to their right to recover their share of the land — one-ninth each.</p>

Will — Election—Parol Evidence. Civil actioN, tried before Merrimon, J., at August Term, 1887, of Wake Superior Court, for the recovery of land and damages for its detention. The material facts are as follows: Wm. Lee died in the County of Wake, in 1861, leaving a last will and testament, which was duly proved at the August Term, 1861, of Wake County Court, and which among other things contains the following: “Item 1.

Lessor and Lessee — Eights of assignee of judgment in claim and delivery— Conversion. Civil actioN to recover damages of defendants for an alleged conversion of certain personal property, tried at April Term, 1887, of Fhanklin Superior Court, before J. H. Mer-rimon, J. The plaintiff appealed.

Insurance Money. This is a controversy submitted without action in compliance with § 567 et seq of The Code, and heard before Philips, J., at September Term, 1887, of MahtiN Superior Court, upon the following facts as a “ case agreed.” , “ 1. Hardy W. Mizzell and Annie M., defendant’s intestate, were married in the year 1866. “ 2.

<p>Certiorari — Laches.</p> <p>PETITION of defendants for a writ of certiorari, heard at February Term, 1888, of the Supreme Court.</p>

<p>Negligence — Evidence—Burden of Proof.</p> <p>Civil actioN to recover damages for personal injuries, tried before Merrimon, J, at January Term, 1888, of Durham Superior Court.</p> <p>The plaintiff alleges that in June, 1887, he entered the regular passenger car attached to the freight train of the defendant at Durham for the purpose of going to Hickory, and by the negligence of the defendant company he was seriously injured while in the coach at Durham.</p> <p>The defendant company denies the negligence and alleges that the injury received by the plaintiff, if any, was caused by his own negligence.</p> <p>The following issues were agreed upon:</p> <p>1. Was plaintiff injured by defendant’s negligence, as-alleged in complaint?</p> <p>2. Did plaintiff’s negligence contribute to his injury?</p> <p>3. If so, was plaintiff’s negligence the proximate cause of the injury?</p> <p>4. What damage, if any, has plaintiff sustained?</p> <p>The plaintiff entered the coach at Durham on the morning of the 15th of June, 1887, and his testimony is as follows :</p> <p>“I went to the depot at Durham to take the train about three o’clock in the morning of the 15th. A man in the railroad uniform, whom I think I saw afterwards taking up tickets, and whom I took to be the conductor, was asked by me if that was the place to get on, and he replied that the train would soon pull down in front of the ticket office. Pretty soon it did pull down, and he told me we could get on, and I assisted my wife to get on. When they pulled down, the engine and freight cars were cut loose, and were carried forward and thrown back on a side track; that was the condition of the cars when we got on. This train was the regular early morning freight, with passenger cars attached ; it had a sleeper and first and-second-class and baggage cars; it may have had the mail car, but I can’t say. I bought tickets at the regular ticket office to Hickory for my wife and myself — first-class; I got in the first-class coach, and walked back near the middle and took a seat in the regular way. About that time a friend of mine came in; I got up and passed the usual salutations; I then sat down on the arm of the seat, my feet on the floor of the aisle, my elbow on the back of the seat, my hand clutching around •.the corner of the back of the seat next to the aisle, my wife -.sitting on a seat on the opposite side of the aisle — one or two seats in my rear; I had been sitting there may be a minute or more when a sudden shock came; the engine, with the freight cars, was thrown back against the coach, and I was thrown back against the corner of the seat in my rear; I was sitting on the arm of the seat, and the seat next in front was turned towards the rear of the coach, and the seat next in front was turned forward, bringing the backs near together. I had no warning of the approach of the train. When I was thrown against the corner of the seat the sensation was a very painful one, with an indentation of the rib, and the second effect was to cause severe nausea. I was familiar with the methods of the night freight in Durham; I had traveled on it several times before; the train generally stays at Durham some time, shifting and coupling. There is a great deal more jolting and bumping in the coupling of freight trains than in passenger trains, and I knew this at the time. I knew when I got on the arm of the seat that the freight cars had not been coupled to the passenger coaches, and that they were to be coupled. Before I met my friend I had been sitting in the seat. I have traveled frequently on freight trains, and on this train, but the shock was more severe than usual.”</p> <p>There was other testimony in respect to the character and effect of the injuries sustained by plaintiff, which were of a serious nature.</p> <p>Upon the conclusion of this testimony his Honor held that plaintiff was not entitled to recover.</p> <p>Whereupon the plaintiff asked and obtained leave to submit to a nonsuit, and then appealed to the Supreme Court, alleging for error the aforesaid intimation and ruling of his Honor.</p>

Jurisdiction— Venue. This is a special proceeding, began in the County of CUMBERLAND, for the settlement of a guardianship, and heard upon exceptions before Clark, J, at Chambers, in RichmoND County, on the 7th day of June, 1887. In the course of the action there was a reference and report to which exceptions were filed.

Appeal — Amendment—Res Adjudicada. This was a special proceeding in the nature of a Creditor’s Bill, brought before the Clerk and heard upon appeal by Connor, J, at July Term, 1887, of the Superior Court of CUMBERLAND County. The cause was before this Court at February Term, 1886, (94 N. C., 378).

<p>1. Appeals will not be entertained from interlocutory orders or judgments unless they determine the action or affect some substantial right. Exceptions to such orders or judgments should be made on the record and reserved to be passed upon, if necessary, after a trial upon all the issues raised, to the end that all the questions which it is desired may be reviewed shall be adjudicated upon one appeal.</p>

Estoppel — Res Adjudicata — Former Judgment. This is a civil action, which was tried before Clark, J., ■ .-at June Term, 1887, of the Superior Court of RichmoND ■County. The action was begun on the 11th day of May, 1883, by -the issue of a summons against Peregrine P. Clements, J. J. Lawrence and J. H. Baker, on the last named of whom due rservice was made, and an ineffectual effort to have service made upon the others, who were non-residents, by publication attempted.

<p>Liens — Notice—Purchasers for Value.</p> <p>This is a civil ACTION, which was tried before Clark, J., at January Term, 1887, of the Superior Court of Columbus •County. ■</p> <p>'The action began before a Justice of the Peace and was carried up to the Superior Court by an appeal.</p> <p>The parties agreed upon and submitted the following facts to the Court for its judgment:</p> <p>“That the plaintiffs furnished material and performed •labor in the repair of the property, lot No. 6, in the town of Whiteville. The work and labor done, and material furnished, began on the 2d day of September, 1884, and ended on the 20th day of November, 1884. That a lien for the same was filed and recorded in due form of law on the 5th day of August, 1885, in the office of the Clerk of the Supe•rior Court of Columbus County.</p> <p>That on the. day of December, 1884, the defendants, Maultsby & Son, who were the owners of the property against which the lien was filed, and who alone contracted for the work and material performed and furnished, conveyed said property to the defendants Kerchner & Calder Bros., for value, and without notice of the plaintiffs’ claim, and the conveyance (or deed) was duly recorded on the 2nd day of December, 1884; that this deed was made and delivered before the filing of the lien; that the amount of the work and the labor performed and material furnished is (sixty-one dollars and eighty-six cents) $61.86; that J. A. Maultsby & Son had no right, title or interest whatever in the land, lot No. 6, in the town of Whiteville when the plaintiffs’ notice of lien was filed with the Clerk of said Court; that the lien was filed in the time required by law.”</p> <p>The Court upon consideration gave judgment for the plaintiffs as follows:</p> <p>“ This cause coming on to be heard upon the statement of the facts found as a special verdict, and the Court being of opinion that the plaintiffs were entitled to recover, now on motion of John D. Bellamy, Jr., attorney for the plaintiffs, it is ordered and adjudged that the plaintiffs are entitled to and have a lien on the property described in the notice of lien for the sum of sixty-one dollars and eighty-six cents, with interest from 17th September, 1884, and the costs of this action. And it is hereby ordered that all- the right, title and interest of the defendants, J. A. Maultsby & Son, in the said land and property which said defendants had therein on the 2d day of September, 1884, the time of the commencement of the furnishing of the material, be sold to satisfy said debt, interest and costs, and that the defendants be foreclosed and barred of any interest therein acquired subsequent to said date, provided the debt, interest, and costs aforesaid be not paid within thirty days.”</p> <p>From this judgment the defendants having excepted, appealed to this Court.</p>

Evidence — Trial—Appeal—Assignment of Ei'ror This is a civil action, which was tried before Graves, /., at Spring Term, 1886, of Henderson Superior Court. This is an action brought to recover the land described in the complaint. The pleadings raised issues of fact. On the trial the plaintiff introduced evidence for the purpose of proving a continuous chain of title consisting of numerous mesne conveyances from the State to them.

Deed — Color of Title — Married Women. This was an issue of sole seizen joined in a special pro•ceeding eor partitioN, begun in August, 1882, in the Superior Court of Stanly County, and tried before Clark, J., at Fall Term, 1887. The defendant answered, alleging sole seizin in himself.

Fixtures — Merger—Execution Sale — Pv/rchaser—Penalty. 'This is a civil ACTION, which was tried before Clark, J, .-at Fall Term, 1887, of Davidson Superior Court.

Appeal — Assignment of Error — Arrest and Bail — Surety— Judgment. This action was originally commenced before a Justice of the Peace of HendersoN County against A. C. Robertson, and carried by appeal to the Superior Court of said county, and heard upon motion before McRae, J., at Spring Term, 1887, for judgment against the surety on an undertaking.

Devise— Will — Description—Evidence. Civil ACTION for the recovery of land, tried before Clark, ./., at December Term, 1887, of DavidsoN Superior Court. The plaintiffs claim title to the land, 1,029 acres, described in the complaint “as heirs at law and devisees of Joseph 'Gordon, Sr.” The defendants also claim title to the land in their possession, respectively derived from Joseph Gordon, Sr., or by long possession under color of title. The separate answers of Robt.

<p>Dower — Evidence—Contract for Sale of Land — Widow— Vendor and Vendee — Parties.</p> <p>DEPENDANT'S appeal.</p> <p>Civil action, for the recovery of land, tried before Graves, J., at Spring Term, 1887, of Haywood Superior Court.</p> <p>The plaintiffs are the heirs at law of J. R. Love, and allege that they are the owners of the land described in the complaint, and that the defendant is in possession thereof and ■wrongfully withholds the same, &c.</p> <p>The defendant Nancy L. McClure denies the allegations •of the complaint, and as a defence to the action, and for affirmative relief, alleges that J. R. Love, the .ancestor of the plaintiffs, in 1858, executed to Wm. McClure, now deceased, .a bond for title to certain lands described in the answer, and •the bond for title fully set out therein, and that the land mentioned in the complaint is included in the land so mentioned in the bond for title, and that Wm. McClure in his lifetime fully paid off and discharged the notes mentioned in the bond for title as the price of the land and was entitled to a deed in fee therefor; that Wm. McClure died iri 1866 intestate, leaving the defendant his widow and the children named in the answer as his heirs at law, “ and the defendant was entitled to dower in said land and now holds the same as widow of said William McClure,” &c.; that J. R. Love died in 1863, leaving a last will and testament, which was duly proved and the executors therein named duly qualified; that the bond for title was duly registered in the Register’s office of Haywood County on the 15th of January, 1867 ; that J. R. Love in his life-time, and his personal representatives since, have sold portions of the land mentioned in the bond for title as set out in the answer.</p> <p>She asks that the surviving executors of J. R. Love (who are named) be made parties plaintiffs, and that the heirs at law of Wm. McClure (who are named) be made parties defendants ; that a decree he made requiring the executors of J. R. Love and the plaintiffs to convey the lands mentioned in the bond for title to the heirs at law of Wm. McClure, and iftheyeannot convey the whole of the land, then for damages for so much as they may be unable to convey, and for such further relief as she may be entitled to.</p> <p>At the special term, July, 1885, it was, by the Court, referred to the Clerk of the Superior Court to ascertain and report upon certain facts and to state an account. At the same term the following entry was made: “Leave granted to make the executors of J. R. Love parties plaintiff, and the heirs of Wm. McClure, deceased, parties defendant, and pleadings to be amended accordingly.”</p> <p>The referee made his report to the Spring Term, 1886, which, with the defendants’ exceptions thereto (twenty in number), is fully and at length set out in the record, bu,t in the view taken by this Court, it is only necessary to mention that the referee reported that J. R. Love executed to Wm. McClure, the husband of the defendant, the bond for title, &c., as alleged in the answer; that the purchase money had not been paid, and that the 18th and 20th exceptions to the report were as follows :</p> <p>“ 18. That the referee erred in finding as a legal conclusion or fact that the purchase money for the land had not been paid, or any part thereof, as there was no testimony to warrant such finding.</p> <p>>ii iK ‡ * ‡ *</p> <p>“ 20. And the defendant asks that a jury pass upon the issue of payment, and such other issue as may be necessary, to determine the merits of this action.”</p> <p>Upon the hearing on the report of the referee and the exceptions thereto, at said term of the Court, the following order was made:</p> <p>“ This cause coming on to be heard, and being heard on exceptions to the report of the referee, made to this term, the exceptions filed by defendant from number 1 to number 19, both inclusive, are overruled by the Court, and defendant excepts to the ruling of the Court.'</p> <p>It appearing to the Court that the defendant has demanded a jury trial in exception number 20, the Court holds that the defendant, by virtue of said last named exception, is entitled to have the issue of payment of the notes mentioned in the bond for title passed upon by a jury, and that the burden will be upon the defendant to show affirmatively the actual payment of the notes mentioned in said bond for title. Defendant excepts.</p> <p>“ The following issues are framed, to be submitted to a jury at the next term of the Court, involving only the question of payment:</p> <p>“1. Have the notes mentioned in the bond for title, executed by testator of plaintiffs to defendant’s husband, William McClure, been actually paid in full?</p> <p>“ 2. If not, what sum has been actually paid by defendant or her said husband, or any agent of either, on the $477 note?</p> <p>“ 3. What sum has been paid on the $823 note?</p> <p>“4. What sum has been so paid on the $150 note?</p> <p>“ Defendant excepts.”</p> <p>At the Spring Term, 1887, these issues were submitted to a jury, and the response to the first was in the affirmative, which rendered an answer to the others unnecessary.</p> <p>The plaintiffs movtd for a new trial, which was refused, and thereupon the defendant asked judgment:</p> <p>“ For a decree for the plaintiffs to execute title to the heirs at law of William McClure and for costs. This judgment thé Court refused to grant, for that theretofore the Court had adjudged that the heirs of Wm. McClure were necessary parties, and had ordered them to be made parties, and now after the verdict, upon inspecting the record, found that they had not been made parties.”</p> <p>Thereupon the defendant moved the Court for judgment as follows:</p> <p>“ This cause coming on to he heard upon the complaint, answer, issues submitted and found by the jury, and it appearing to the Court that the defendant is the widow of William McClure, and that said William.McClure had the bond of James R. Love, ancestor and testator of plaintiffs, for title to the land in controversy; and it further appearing to the Court from the issues submitted and found by the jury, that the said William McClure, in his lifetime, fully paid the purchase money to said James R. Love for said lands, and that the widow, Nancy L. McClure, the defendant, is entitled to dower on said land: On motion of counsel for defendant, it is considered by the Court that plaintiffs take nothing by their writ, and the defendant have and recover of plaintiffs and secuñty in prosecution, the costs in this behalf to be taxed by the Clerk.”</p> <p>This motion the Court refused, and declined to make any judgment until all the facts necessary to a full determination of the matters in controversy were properly ascertained. From the refusal to grant the judgment asked for the defendant appealed.</p>

Negligence — Proximate Cause — Evidence—Damages—Trespasser —License— Trial — Railroads. Civil actioN, tried before Clark /., at May Term, 1887, of the Superior Court of Cumberland County, to recover damages for the alleged negligent killing of Thomas McDonald, the intestate of the plaintiff. It is alleged and admitted that on or about the night of October 19th, 1883, Thomas McDonald was run over while, on the defendant’s track in the town of Fayetteville.

Will — Survivorship—Executory Devise — Contingent Estate— Remainder. This is a civil ACTION, which was tried before Gilmer, J., at Fall Term, 1886, of Anson Superior Court.

<p>. 1. The rule that one may rightfully use such force as may be necessary for the protection of his person or property is subject to the modification that he shall not, except in extreme cases, do great bodily harm or endanger human life.</p> <p>2. This general rule is much more restricted when the force is attempted to be employed in the protection of property which is sought to be seized by an officer armed with legal process.</p> <p>3. Where an officer having in his hand a requisition duly issued commanding him to seize certain property was violently assaulted with a deadly weapon by a person not a party to the action who was in possession and claimed the property in controversy, took the property described in the requisition, arrested the assailant, carried her forthwith to the jail and confined her therein until he could procure a warrant for her arrest, using no more force than was necessary therefor; Held, that he had not exceeded his authority. ,</p>

Appeal- — Motion to Dismiss — Proceedings Supplemental to Execution. This is a civil action which was tried before Boykin, J., at May Term, 1886, of Cumberland Superior Court.

<p>Evidence — Res Gestee.</p> <p>This is a civil ACTION, which was tried before Connor, J., at January Term, 1887, of New HaNOVEB, Superior Court.</p> <p>The defendant, Sheriff of New Hanover County, having in his hands an execution against L. G. Cherry, seized and sold a stock of goods as his property, for which the plaintiffs claiming title bring this action to recover damages. The only question made at the trial was as to the ownership of the goods.</p> <p>The said L. G. Cherry, examined as a witness for the plaintiffs, testified among other things, that one C. H. Strode, then a deputy of the defendant and since deceased, came to the store to make the levy when he was informed by the witness, who forbade his levying, that the goods were not his but belonged to his wife, one of the plaintiffs under whom the others claim; that the deputy left and consulted with the attorney of the*plaintiffs in the execution, by whom he was directed to return and seize the goods, which he did, closing up the store in which they were. This evidence was introduced without objection from the defendant.</p> <p>To meet this testimony the defendant, among other witnesses, introduced one W. H. Shaw, the Deputy Sheriff who had charge of the office in the defendant’s absence, and who had placed the execution in the hands' of Strode and instructed him to levy upon the stock then in possession of L. G. Cherry. The witness having in answer to an inquiry, if he had delivered the writ to the other deputy to be executed, said that he did. Defendant’s counsel proposed to ask this further question : “ What did Strode state to you touching the execution when he returned it?” To this question the plaintiff objected, because Strode was dead, and the defendant proposed to introduce a statement of his, in evidence, made in the absence of the plaintiffs. His Honor asked the object of this question, and the defendant’s counsel replied, that he proposed to show by the witness that Strode in making his return to the execution came direct from Cherry to witness and said that L. G. Cherry did not state that the property' was his wife’s, the said Mrs. Mary P. Cherry, but asked that his exemption should be laid off, thus exercising a right of ownership over, and claiming the property to be his own. And the defendant claimed that this return or declaration of Strode’s was admissible upon four grounds:</p> <p>1. -Because the plaintiffs had opened the door to its admission by introducing the transaction and statement made by and between L. G. Cherry and the said Strode, above stated, in evidence and that this was but a continuance of the same transaction.</p> <p>2. To contradict the said statements of L. G. Cherry so made as above stated.</p> <p>3. To corroborate the witness, W. H. Shaw, then on the stand, in his statement as to what heudid in consequence of the return made to him by Strode. ft</p> <p>4. That they were admissible as a part of the “ res gestee.”</p> <p>•His Honor-then asked the witness how far it was from Cherry’s store to where witness was, and upon witness replying that it was about two blocks and a half, his Honor said that the declarations were not a part of the “ res gestee,” and ruled out the answer to the said question. To which the defendant excepted. The witness then stated that in consequence of what Strode said to him he summoned three appraisers to lay off Cherry’s personal property exemption; but the said exemption was never laid off, because L. G. Cherry approached him about two hours after- he had summoned the appraisers and told the witness that he had concluded not to claim his exemption.</p> <p>The jury returned a verdict for the plaintiffs, and, from the judgment rendered thereon, the defendant appealed.</p>

Contract — Evidence—Issues—Insurance—Assignment. Civil action, tried before Clark, J., at Fall Term, 1886, of the Superior Court of New Hanover.

<p>Elections— Voters — Evidence—Jurisdiction— Constitution— Statute — Canvassing Boards.</p> <p>This is a civil ACTION, which was tried before Merrimon, /., at January Term', 1888, of Durham Superior Court.</p> <p>The plaintiff, a tax payer of the town of Durham, brought this action in behalf of himself and all other tax payers, &c., to contest the validity of the election held under and in pursuance of the statute (Acts 1887, ch. 86,) which, among other things, provides as follows: “Section 1. The Board of Commissioners of the town of Durham shall, and they are hereby authorized, to submit to the qualified voters of the said town, under such rules and regulations, and at such time, within six months of the ratification of this act, as the said Commissioners may prescribe, whether a tax shall be annually levied therein for the support of the schools in said town provided for by this act.” At the election held under the provisions of this act, those who favor the levying of such tax shall vote on written or printed ballots, without device, the words: “ For school; ” and those who are opposed to levying of such tax, shall vote on written or printed ballots, without device, the words: “ Against school,” &c. * *</p> <p>“ Sec. 2. The inspectors of said election shall, on the day following the election, certify the number of votes cast and counted for and against ‘ school ’ to the Commissioners of said town, who shall propeed to declare at once the result of the election, 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.</p> <p>In the complaint, among other things, it is alleged:</p> <p>“ 8. That by section 2 of said act, it is provided that if a majority of the votes cast be in favor of the tax therein provided for, 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, and plaintiff is advised and believes, and so alleges, that said act is void and unconstitutional on its face, because it provides that a municipal corporation shall levy a tax, not for the necessary expenses thereof, by a vote of a majority of those voting, and.not by a majority of the qualified voters therein, as provided by Art. YII, § 7, of the Constitution of North Carolina.</p> <p>“4. Notwithstanding it appeared upon the face of the said act that the same was void and unconstitutional, the Commissioners of the town of Durham ordered an election to be held in pursuance of its terms, at which election, as plaintiff is informed and believes, a majority of the qualified voters of the said town of Durham did not vote in favor of said tax. Notwithstanding a majority of the qualified voters of the town of Durham did not vote in favor of levying said tax, and establishing the graded school provided for in said act, the defendants, the Commissioners of the town of Durham, acting as Board of Commissioners, by virtue of powers contained in said act, proceeded to appoint a committee, who, after refusing to hear any evidence to the contrary, and also refusing the plaintiff, and others in like case with him, who were present with counsel and demanded it, any opportunity to be heard, and without having any evidence from any source, reported that one hundred and eighty voters, whose names appeared upon the registration books, were not qualified voters of the town of Durham, and that the vote cast in favor of said tax and school was a majority of the qualified voters of the town of Durham, whereupon the said Commissioners proceeded to declare, against the protest of the plaintiff, that the'said act had been ratified by a majority of the votes cast, and also by a majority of the qualified voters of the town of Durham, whereas the plaintiff alleges that the registration books showed that there were on the day of said election nine hundred and eighty-three registrations in the town of Durham, and the plaintiff offered to prove to the board, before the result had been declared, that said act had not been ratified by a majority of the qualified voters; but the said board refused to allow the plaintiff opportunit3r to do so, and refused to allow him to see a list of the names of the persons whom the committee declared were not qualified voters of the town of Durham ; and plaintiff now alleges, upon information and belief, that the said act was not ratified by a majority of the qualified voters of the town of Durham, because the registration books show that there were nine hundred and eighty-three registered in the town of Durham on the day of said .election, of whom four hundred and ten voted for the ratification of said act, which is not a majority of said qualified voters.</p> <p>“ 6. That the plaintiff is advised and believes that the said board had no authority to declare that the said act had been ratified by a majority of the qualified voters, for if the act be not entirely void, it only provides that the Commissioners shall declare that it was ratified by a majority of those voting.”</p> <p>The defendants in their answer denied that the statute in question is void; admitted that an election was held in pursuance of the same, and alleged that such election was conducted and the result thereof ascertained and reported fairly and regularly; and that the defendants, the Commissioners of the town of Durham, duly reported that a majority of the ■votes cast at that election, and a majority of the qualified voters of that town voted at it and voted “ For Schooland they denied the irregularities alleged in the complaint, and that the Commissioners named refused to allow the plaintiff or any other person to be present and see the result of the election ascertained, &c.</p> <p>The report of the Commissioners states, in substance, that at the election named, 410 votes were cast “ For School,” and 151 votes “ Against School,” and that there were 800 qualified voters in the town of Durham on the day of the election.</p> <p>The following is a copy of so much of the case settled on appeal as need be set forth here:</p> <p>‘ When the case was called for trial the plaintiff tendered the following as the only issue necessary to be submitted to the jury, to-wit.: Was 410 a majority of the qualified voters of the town of Durham on the 4th day of April, 1887 ?</p> <p>“ While the plaintiff Rigsbee was being examined as a witness in his own behalf, the Court suggested that his testimony did not seem to be relevant. Whereupon plaintiff’s counsel stated that they would prepare other issues, which they did, and tendered the following in addition to the above set forth-:</p> <p>“ Did the Board of Commissioners legally and fairly strike out 180 names from the registration books ?</p> <p>“ Did the committee, appointed by the Board of Commissioners, base their report on any evidence ?</p> <p>•“Did the committee refuse a hearing to the plaintiff?</p> <p>“ Did the Board base their action on anything except the report of the committee ?</p> <p>“ Was the said report accompanied by any evidence?</p> <p>“ At the close of the testimony for the plaintiff the Court stated that, as it appeared from the complaint, the proper authorities of the town of Durham had ascertained that 410 votes was a majority of the qualified voters of the town on the 4th day of April, 1887, and had so declared, pursuant to the authority vested in them by the act of the General Assembly under which the election was held, this declaration was to be taken as true until the plaintiff should make the contrary appear by testimony, and that the testimony offered by the plaintiff did not tend to prove that any one of the 180 voters whose names the Board of Commissioners of the town had stricken from the registration books was a qualified voter on the day of election. .</p> <p>“ Upon this intimation of the Court that the plaintiff had failed to make any case against the defendants he submitted to a nonsuit and appealed to the Supreme Court, but before be took this course the Court stated that he might take his choice of a verdict against him or a nonsuit.</p> <p>“ The Court being of the opinion that the plaintiff could not recover unless the first issue should be found in his favor, and that there was no evidence in support of the negative of that issue did not deem it necessary to submit the other issue to the jury. The plaintiff excepted.”</p> <p>On the trial “ the plaintiff introduced the registration books of the town of Durham, which were admitted to be genuine.</p> <p>“ The plaintiff then introduced W. H. Proctor, who testified that he was the registrar of the town of Durham, during the years 1886 and 1887, and on the 4th day of April, 1887, (the date of the election in question) there were 981 names on the registration book, but that two of these had been registered twice.”</p> <p>Several other witnesses were examined on the trial for the plaintiff, including himself, but their testimony went to show what was said and done by the Commissioners and others, while the former were engaged in ascertaining the result of the election; there was no evidence of them that went to prove that any person whose name appeared on the registration books as a qualified voter, who was ascertained and decided by the Commissioners not to be such voter, was such in fact.</p>

Counties — Municipal Corporations— Torts — Nuisance— Pleading. This is a civil ACTION, which was tried before Clark, J., at May Term, 1887, of ANSON Superior Court. The plaintiffs, on the 1st day of October, 1883, instituted the present action agaiust the' Board of Commissionei’s of Anson County to recover damages for the erection and maintenance of an alleged nuisance, on the court-house square, and to have the same abated, and state their cause of action thus: 1.

<p>1. The Supreme Court has jurisdiction, in actions purely equitable, to review the evidence and findings of facts in the Court below, where the entire testimony, as it was offered and received on the trial, is transmitted and can be considered upon the appeal; but it will not exercise this jurisdiction upon a fragmentary or summary statement of the evidence.</p> <p>2. In the application of this jurisdiction the Supreme Court may in certain cases direct further testimony to be taken, or direct an issue of fact to be framed and remanded for trial by jury.</p> <p>3. All defendants in judgments for the payment of money are, as to the judgment creditor, principal debtors, and the creditor may proceed to enforce his judgment by execution against one or all, unless the verdict or judgment shows that the relation of surety existed, and this is endorsed upon the execution. In that event the officer must first proceed against the principal as directed by The Code, §§2100 and 2101.</p> <p>4. Where it was alleged by one seeking an injunction against execution in which he represented that he was only surety (but that fact did not appear in the judgment), that a contest was pending between the judgment creditors and the principal debtor as to the allotment of the latter’s homestead; Held, that this was not sufficient to authorize the Court to grant an injunction to restrain the enforcement of the execution against the surety.</p> <p>5. An injunction will not be granted to stay an execution regularly issued upon a judgment, because the judgment creditor threatens, or has had it levied upon property not subject to execution, or upon real property belonging to another. A sale under such circumstances would not pass title, and the true owner of the land would not thereby be exposed to irreparable injury.</p>

<p>1. Where, in term time, one of the plaintiffs in the action moved to be-allowed to withdraw from the suit, and this motion was, by consent, continued to be heard with others pending in the cause at a day out of term when it was allowed; Held, not to be error.</p> <p>3. Plaintiffs may submit to a nonsuit at any time before verdict, unless-in actions of an equitable nature the adverse party shall have-acquired some right which he is entitled to have determined.</p> <p>3. If the defendant has pleaded a counter-claim, while the plaintiff may be permitted to suffer a nonsuit as to his cause of action, the defendant will, nevertheless, be entitled to prosecute his counterclaim.</p>

Guardian and Ward — Interest—Evidence. Civil ACTION, tried before Boykin, J., at Fall Term, 1887, of the Superior Court of Asi-ie County. The complaint alleges in substance : 1. That in 1882 William Latham died intestate and the defendants were duly appointed his administrators. 2. That in 1864 Caroline Latham, mother of the plaintiff, died intestate, leaving the plaintiff her only -heir at law. 3.

Administrator’s Purchase at his oimi Sale — Fraud—Judicial Sale. This was a petition filed at October Term, 1887, to rehear this cause, decided at Spring Term, 1887.

Administration — Sale of Land for Assets — Statute of Limitations — Judg ment— Merger. This is a special proceeding to sell lands to make assets. Issues of fact being joined, a trial by jury was waived, and the cause was heard before Connor, J., at October Term, 1887, of RobissoN Superior Court.

Lien — Mortgage—Surety. Civil actioN, tried before Avery, J., at Fall Term, 1887, of Edgecombe Superior Court. The plaintiff is the administrator of Robert L. Pitt, who died intestate in the month of May, 1884.

Betterments — Married Women — Judgment— Contract. This was a PETITION by the defendant for an inquiry and allowance for improvements, heard before MacRae, J., at-March Term, 1888, of Burcombe Superior Court. The complaint in this action, which was begun on September 6th, 1882, contains the usual averments of the plaintiffs’ ownership and the defendant’s wrongful withholding of the land mentioned therein, the possession of which is ■sought to be recovered.

Excusable Neglect — Vacating Judgment — Appeal. This was a motion made by the defendant after notice, at March Term, 1888, of Bunoombb Superior Court, to set aside a judgment rendered at the term preceding for excusable neglect under § 274 of The Code, heard and denied upon the following facts found by MacRae, J. : The action was placed upon the calendar for trial on a day certain, or as soon thereafter as it could be reached.

Contempt — Injunction—Jurisdiction—When Action is Commenced — Summons. This was an Appeal from an order of Graves, J., adjudging the defendant to be in contempt, for disobedience of a restraining order made in this cause, pending in the Superior Court of Burke County. The facts are stated in the opinion.

Con tempt — Punishment—-Habeas Corpus. This was a rule served upon the respondents to show cause why they should not be punished for contempt, heard before Graves, J., at Spring Term, 1887, of Buncombe Superior Court.

Jurisdiction of Justices of the Peace — Pleading—Statute— Constitution — Waiver of Tort. This was a civil action, tried upon an appeal from a Justice’s Court, before Avery, J., at Spring Term, 1887, of Hertford Superior Court. The plaintiff offered testimony tending to show that the defendant, without authority, had cut, removed and sold a number of trees from lands claimed by him.

Administration — Final Account — Statute of Limitations — Liability of Surety — Reference—■Fmideiice. This ivas a civil action, tried before Awry, J., at Fall Term, 1886, of MadisoN Superior Court, upon report of referee and exceptions.

Registration — Deeds in Trust — Mortgages—Purchasers— Domicile. This was a civil ACTION, tried before Graves, J, at March Term, 1887, of -Buncombe Superior Court.

Evidence — Mistake—Correction of Deed — Trust—Trial—Lapse of Time — Possession. This was a civil action, tried before Montgomery, J., at August Term, 1887, of Bumcombe Superior Court. The plaintiff alleges in substance: , 1. That prior to April 14th, 1877, he was the owner in fee of the tract of land described in the complaint, containing about 725 acres, and of the value of $5,000 or $6,000. 2.

Injunction— Vacating Judgments — Execution Sale. This was a proceeding to obtaiN AN injunction, heard before Montgomery, J., at Fall Term, 1887, of Jackson Superior Court.

Parties — Trial by Court — Reference—Issues—Corporations— Fraud — Exceptions— Waiver. This was a civil action, tried before MacRae, J, at Spring 'Term, 1886, of Davidson Superior Court.

Questions of fact for the Court and for the Jury — Evidence—■ Statute of Limitations — Presumptions—Seal. Civil actioN, tried before MacRae, J., at March Term, 1888, of Buncombe Superior Court. The plaintiff sought to recover the balance alleged to be due upon a note, under seal, made by the defendant’s intestate to J. S. T. Baird in 1863, for $1,500, which was assigned to plaintiff’s intestate.

Deed — Probate—Registration—Evidence —Handwriting This is a civil action, and was tried before MacRae, J., at Pall Term, 1887, of Rutherford Superior Court.

Appeal— Undertaking — Presumption. At the Fall Term, 1886, of the Superior Court of the-County of CLEVELAND, held in the month of October, of that year, Graves, J., presiding, the plaintiffs, appellees, obtained judgment in that Court against the defendants, from which the latter appealed to this Court.

<p>"1. In a special proceeding for partition, it is erroneous to permit the personal representative of the ancestor of the tenants in common to interplead and apply for a license to sell the lands for assets.</p> <p>:2. The same principle which forbids the improper joinder of causes in civil actions, applies to special proceedings.</p> <p>.3. Where it appears to the Court in a proceeding for partition, that it may become necessary to sell the lands for assets, it should stay the partition until the personal representative can have reasonable opportunity to apply for a license.</p>

<p>1. Where the record shows that a person was a party, and the Court had jurisdiction of the subject of the action, a judgment therein can.not be collaterally attacked, on the ground that the person was not in fadt a party. The proper remedy is by a direct proceeding to correct the record and vacate the judgment. The fact that the party complaining was at the rendition of the judgment a lunatic or infant, constitutes no exception to this rule.</p> <p>(Vide, S. C., 91 N. C., 498, and 94 N. C., 595.)</p>

Pleading— Trial. This is a civil ACTION, which was tried before Montgomery, J, at Pall Term, 1887, of Haywood Superior Court.

Description in Deed — Sale of Trees — Statute of Frauds — Parol Evidence— Contract. This was a civil ACTION, tried before Graves, J., at Spring Term, 1887, of Haywood Superior Court.

Corporations — Liability of Stockholders — Parol Evidence. Civil action, originally commenced before a Justice of the Peace for Catawba County, to recover the sum of $200, alleged to be due by subscription to The Marshall Foundry Company, and carried, by appeal, to the Superior Court of said county, and tried before Boykin, J., at January Term, 1888.

Judgments void and voidable, relief against — Jurisdiction—Parties — Presumption—Injunction. This was a civil actioN, tried before Clark, J, at January Term, 1886, of the Superior Court of GkaNVIllb County.

Jurisdiction — Amendment—Consent Order. Civil actioN, tried before MacRae, J., at September Term, 1887, of the Superior Court of Mecelenburg. The action was brought to recover a balance of $9Í.66, alleged to be due to the plaintiff for certain building materials furnished to the feme defendant, to be placed upon, and for the improvement of, her separate real estate.

Report of Referee — Judgment in absence of Exceptions— Practice. Civil ACTION, heard before MacRae, J., at Fall Term, 1887, of the Superior Court of MeckleNBURG. This action was brought in the Superior Court by W. C. Abernathy, guardian of M. L. Abernathy, against the defendant B. F. Withers, administrator of M. J. Abernathy, deceased, and the sureties on his administration bond, for an account and settlement of the estate of his intestate.

<p>1. This Court cannot permit the case on appeal, appearing in the record,. to be varied or amended by adding thereto matters suggested to-the Court upon affidavit. Only questions presented in the record can be considered.</p> <p>2. In the absence of an express agreement the principal is not responsible for the hotel bill of his agent or drummer, where the hotel-keeper allows the agent to run up-a bill without notice to the principal, and it is proven to be a general custom for such agents to pay their hotel bills in cash.</p> <p>3 An innkeeper has a lien even upon the goods of a third person held by a guest, and brought within the inn, unless he knew they were not the property of, tt(e guest.</p> <p>4. When there is no evidence, or only a scintilla of evidence, or the evidence is not sufficient, in a just and reasonable view of it, to-warrant an inference of any fact in issue, the Court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests.</p>

<p>1. A creditor having obtained judgment against principal and sureties to a debt, and there being some real property of the principal in excess of the homestead, after the same was allotted, the neglect of the creditor to proceed to sell such excess, though orally requested so to do by the sureties, does not exonerate the sureties to the amount the land would have brought if sold.</p> <p>2. Where the creditor merely remains passive, doing nothing detrimental to the surety, who can pay the debt and have the judgment assigned to a trustee, so as to place it under his control, the surety is not exonerated.</p> <p>3. To get the benefit provided for sureties by Sec. 2097 of The Code, they must give the creditor notice in writing to bring suit, &c., and only he who gives the notice can claim the benefit, when there are more than one.</p>

Executors and Administrators — Judgment. This was a civil action, heard on exceptions, by MacJRae, J, at’May Term, 1887, of Ashe -Superior Court, final judgment being rendered by BoyJcin, J., at Fall Term, 1887, on the filing of the opinion of the Supreme Court, rendered at February Term, 1887, in this cause. - Defendants appealed.

Power of Attorney — Seal—Deeds—Form and Execution of Deeds by Attorneys in Fact — Correction of Written Instruments. EjbctmeNT, tried before Graves, J., at September Term, 1886, of UNION Superior Court.

Tenant by the Curtesy — His Interest liable to Execution. ActioN or EJECTMENT, tried before Clark, J., at May Term, 1887, of the Superior Court of RobesoN County.

Submitting to Nonsuit — Landlord and Tenant— Writ of Possession — Ejectment. Civil action, tried before MacRae, /., and a jury, at Pall Term, 1887, of Mecklenburg Superior Court.

<p>1. The record in a suit upon an administration bond against a surety and the personal representatives of another surety in which a not. pros, was entered as to them, and judgment rendered against their intestate’s co-surety, is evidence and prima facie proof, in a suit by him, for contribution,, against said personal representatives, as to the damages.</p> <p>2. The finding by a Judge below of the facts of the loss of a record, upon which secondary evidence of its contents is offered, is conclusive, and not the subject of review in the Supreme Court.</p> <p>3. A surety seeking contribution from a co-surety can offer evidence of the general reputation for insolvency of th'eir principal, even after direct evidence of such insolvency, such as unsatisfied executions against him, &c.</p> <p>4. The statute of limitations begins to run against a surety paying a debt only from the time of payment.</p> <p>5. Under the practice in this State, where the record shows a motion for a new trial for certain alleged errors, only such errors will be considered in the Supreme Court, all other exceptions taken at the trial being treated as abandoned.</p> <p>6. Where the Judge’s charge involves a series of distinct propositions, the errors alleged must be distinctly pointed out, or they will not be noticed.</p> <p>7. The credit to be given to evidence is a question exclusively in the province of a jury.</p> <p>8. It is not proper for a Judge to give an instruction upon a speculative proposition not hearing on any of the issues in the case.</p> <p>9. The statute giving an action to a surety who has paid the debt against a co-surety, when the principal shall be insolvent or out of the State, has reference to the time when action is brought, and not to the time of payment by the surety.</p> <p>10. When the relations of one not a party to an action, who, it is claimed, should have been made a party, appear in the complaint, the defendant has his remedy by demurrer; and if they do not so appear, he should set out the facts, and insist on the objection in his answer.</p>

<p>Agricultioral Liens — Chattel Mortgages — Description of Property in Conveyances, &c.</p> <p>Civil ACTION, tried before Avery, J., at Fall Term, 1887, of' the Superior Court of Halifax County.</p> <p>It appears that on the 28th day of January, 1884, the plaintiffs commission merchants agreed to supply to R. W. Carter,. A. J. Wood and W. W. Carter, from time to time, “supplies”' and money during the year 1884, to an amount not exceeding-$1,000, to be by them expended in the cultivation of a crop to be produced during that year; and they executed to the plaintiffs, on that day, an agreement in writing, creating a lien in their favor, upon the crop so to be cultivated, to secure the payment of the “ supplies ” and money so to be supplied, as-allowed by the.statute {The Code, § 1799). This agreement provided, among other things, in respect to such “ supplies”’ and money, that the same were to be used and expended in the cultivation of a crop during that year, upon “ the lands of D. B. Bell, situated in the County of Halifax, adjoining-the lands of T. J. Ryan and others, and upon any other lands we may cultivate in said county.” It further provided as follows: “And we do hereby give to the said W. W. Gwath-ney & Co. a lien upon all the crops which may be made by us upon said lands during said year.” * * * And for •the further securing of said advances to be made to us, we ■ do hereby sell and convey to W. W. Gwathney & Co., and •their assigns, the following described property, to-wit.: “ All ■our interest in the rents or shares of all the crops that may be made on said lands, or any other lands we may cultivate in said county of Halifax,” &c.</p> <p>The plaintiffs allege in their complaint, that the contemplated crop was produced, but their debt, so created and secured, was not paid, and that the makers of the agreement and lien mentioned, shipped to the defendants commission merchants “ fifty bales of cotton of the crops, rents and shares • of crops aforesaid, on which the plaintiffs had a lien as aforesaid, and the same were, by said defendants, sold and con•verted to their own use,” &c.</p> <p>The following is a copy of so much of the case settled on appeal as need be set forth here :</p> <p>“ It is agreed, as a fact, that the cotton in controversy was ■made by W. W. Carter, on his home tract of land, not on the D. B. Bell land, and shipped bjr him to Etheridge & Brooks; and also, that R. H. Carter and A. J. Wood raised a crop for •the year 1884, on the D. B. Bell land; that they had no interest in the said crop raised by W. W. Carter, and W. W. ■Carter was not interested in the crop raised on the Bell land ; the advances made by plaintiffs were not, in fact, used on the W. W. Carter land, while h'e did use the advances made by Etheridge & Brooks on the crop raised on his own land.</p> <p>“ It was agreed, that the cotton was worth $298.16. It is agreed, that if the plaintiffs are entitled to judgment at all, •they are entitled to interest from January 22, 1885, on that .amount.</p> <p>“ Upon the facts admitted, the Court instructed the jury,., that the title to the cotton in controversy passed to plaintiffs-by the mortgage deed, and they were entitled to the value-of it.”</p> <p>There was a verdict and judgment for the plaintiffs, and-the defendants, having excepted, appealed to this Court.</p>

<p>1. Though the issues tendered by a defendant eliminated more distinctly the matters controverted in the pleadings than those adopted by the Court, he has no ground of complaint if the instructions to the jury raised every defence available to him under those.he tendered.</p> <p>2. Where the defence to an action for damages resulting from an accident to the plaintiff, an employee of defendant’s railway, was a want of care and prudence on the part of the plaintiff and those identified with him, and there was evidence tending to sustain the' defence: Held, that a charge, ignoring the plaintiff’s negligence, or co-operating agency in the accident, or that of those identified with him, is erroneous.</p> <p>3. Though the defendant has been negligent, yet, if plaintiff, by reasonable care and prudence, could have averted the accident, he is not entitled to recover.</p>

Dower— Waste. Civil ACTION, tried before MacRae, J., and a jury, at Pall Term, 1887, of MECKLENBURG Superior Court. Judgment for defendants; plaintiffs appealed.

Appeal — Practice—Assignment of Error — Judgment out of Term — Statement of Case on Appeal. Plis Plonor, Avery, J., in November, 1887, at Chambers, heard a motion to set aside and vacate a judgment in Bukke Superior Court, in favor of the appellant and against the appellee. The motion was granted, and the plaintiff in the action appealed to this Court. The objections made sufficiently appear in the opinion.