Wife's separate estate--Conveyances.
17. Code N. C. § 1256, provides that "every con- veyance, etc., affecting the estate, rights, or title of any married woman in lands, tenements, or hereditaments, must be executed by such married woman and her husband, and due proof or acknowl- edgment thereof must be made as to the husband, and as to the wife, and the privy examination of the wife touching her voluntary assent to such conveyance shall be taken separate and apart from her husband. " Held that, while the husband and wife must be parties to the same deed, it is not essential that they should execute it at the same time, and that it is sufficient if it be taken to and executed and acknowledged by the wife after the husband has executed it.-Line- berger v. Tidwell, (N. C.) 10 S. E. 758.
18. Where a husband, who holds land in trust for his wife, conveys the same, in breach of his trust, in consideration of a note due by him to the purchaser, and of supplies for his family, the pur- chaser, on being held to an accounting for the rents and profits, is not entitled to have either the note or supplies credited thereon; nothing being shown to throw the support of the family on the wife's estate.-Rabb v. Flenniken, (S. C.) 10 S. E. 943.
19. Under an instrument constituting color of title, land was conveyed by a man to his married daughter, who with her husband entered into and remained in possession for the length of time req- uisite to give title by adverse possession, when her husband, alone and against her objection, con- veyed the land for value to another, who took pos- session. Held, that the husband's deed conveyed only his life-estate.-Avent v. Arrington, (N. C.) 10 S. E. 991.
20. Where a mother conveys her land to her children, to be equally divided among them, on her death, by three disinterested persons, upon an agreement between the children after her death to sell the land by agents appointed for that purpose, the title of a married daughter, whose husband re- ceived her share of the proceeds, will be held to have passed by the conveyance of the agents, after the lapse of over 30 years, though she failed to join in the conveyance as required by statute to pass the inheritance of a married woman.- Smith v. Tanner, (S. C.) 10 S. E. 1008.
Wife's power to contract.
21. Under Gen. St. S. C. § 2037, providing that a married woman may "contract and be contracted with, as to her separate property, in the same man- ner as if she were unmarried," she may give a note for money borrowed for her own use.-Howard v. Kitchens, (S. C.) 10 S. E. 224.
22. The statute does not authorize a married wo- man to give a note for money expended on account of her child, at her request.-Howard v. Kitchens, (S. C.) 10 S. E. 224.
23. A married woman is liable for money bor- rowed by her under the representation that it was for herself, where the lenders knew nothing to the contrary. Following Howard v. Kitchens, 10 S. E. 224.-Schmidt v. Dean, (S. C.) 10 S. E. 228.
24. A married woman is not liable on her note given for money loaned to her husband to pay the premium on a life insurance policy payable to her, if living at his death, otherwise to his represen tatives for the benefit of his children.-Jones v. Bradwell, (Ga.) 10 S. E. 745.
tion, without notice, and creditors, until recorded, a deed of settlement, made in consideration of the relinquishment of dower, is void as to creditors of the husband whose claims accrued after the execu- tion but before the filing of such deed; and, as against such creditors, the wife will be held to the value of her dower interest. - Strayer v. Long, (Va.) 10 S. E. 574.
27. Where a wife has released her dower in consideration of a prior deed of settlement, the settlement will be held good, to the extent of a just compensation for her dower, though fraudulent as to the creditors of the husband, as fraud will not be imputed to the wife.-Strayer v. Long, (Va.) 10 S. E. 574.
28. Where a deed of settlement, on its face, pur- ports to be in consideration of the wife's releasing her dower interest in the other lands of her hus- band, proof that the subsequent relinquishment by the wife of such interest was in consideration of the settlement is unnecessary.-Strayer v. Long, (Va.) 10 S. E. 574.
29. F. entered into a marriage settlement with his intended wife, by which he agreed for him- self, his heirs, etc., that all property of all kinds belonging to her at the time of the marriage, or that she might thereafter acquire, should remain her separate property, and not be subject to his debts, nor be conveyed or controlled by him, but that the right and title thereto should vest in a trustee, for the benefit of the wife during covert- ure, and on her death should go to her children; or, in case she should survive F., then that the trust should determine at his death, and the ab- solute title to the property revest in her. Held, that a deed by the wife and her trustee conveyed only an estate for the life of the wife, and the chance of the reversion, in case she should sur- vive her husband.-Cleghorn v. Smith, (Ga.) 10
Gifts-Indorsement of bond.
30. In view of the fact that, after a husband in dorsed a bond to his wife "for her sole and sepa- rate use," he bequeathed the bond to the wife, and in the absence of any testimony showing a deliv- ery, such indorsement is not sufficient to pass the title to the wife.-Lewis v. Mason's Adm'r, (Va.) 10 S. E. 529.
31. The wife being her husband's administra- trix, her possession, after his death, of a bond which he had indorsed to her, is not evidence of delivery.-Lewis v. Mason's Adm'r, (Va.) 10 S. E.
32. Though, at the time of the indorsement of a bond to a wife, the husband was in unembarrassed circumstances, and the amount of the bond would not be an unreasonable provision for the wife, yet these facts, in connection with the indorsement, will not be allowed to operate as a settlement on the wife, as Code Va. 1860, c. 116, § 1, p. 558, in force at the time of the indorsement, provided that "no gift of any goods or chattels shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession, within the meaning of this section."-Lewis v. Mason's Adm'r, (Va.) 10 S. E. 529.
25. Under Code N. C. § 1826, providing that "no woman, during her coverture, shall be capa- 33. Though Code N. C. § 178, provides that when ble of making any contract to affect her real or a married woman brings an action her husband personal estate, except for her necessary personal must be joined, except when the action concerns expenses, or for the support of the family, or such her separate property, or is between herself and as may be necessary in order to pay her debts ex- her husband, an action by the wife should not be isting before marriage, without the written con- dismissed for failure of the husband to join, where sent of her husband, unless she be a free trader, it appears that he is hostile to plaintiff's rights, as hereinafter allowed, a married woman cannot and she may be entitled to redress as against him. make a contract binding herself personally.-Far--Barnes v. Barnes, (N. C.) 10 S. E. 304. thing v. Shields, (N. C.) 10 S. E. 998.
Marriage settlements.
26. Under Code Va. 1887, § 2465, providing that every contract, deed, or mortgage shall be void as to subsequent purchasers for valuable considera-
34. Under Code N. C. § 1823, providing that the liability of a feme sole shall not be altered or im- paired by her marriage, a justice of the peace has jurisdiction of an action against a feme covert for a debt contracted before her marriage. - Hodges v. Hill, (N. C.) 10 S. E. 916.
35. A deed, after reciting that differences exist ed between a husband and wife, and that they de- sired to adjust such differences, and provide "an adequate and sufficient support" for the wife, con- veyed land to a trustee for the purpose of allow- ing the husband and wife to have the rents and profits, and to support the wife "in such manner as she has heretofore lived;" and the trustee signed the deed. In an action by the wife against the trus- tee and her husband plaintiff alleged that the trus- tee had neglected and refused to support her out of the rents and profits; that she was 70 years old, poor and infirm, and had been for years dependent on charity; and that the rents and profits of the land amounted to a certain sum per annum. The trus- tee denied that he was such, and alleged that his co-defendant had possession of the land, receiving the rents and profits. Plaintiff demanded half of the rents and profits for each year, and also gen- eral relief. Held, that it was error to dismiss the action, as the facts alleged entitled plaintiff to eq- uitable relief, if not to a judgment at law.-Barnes v. Barnes, (N. C.) 10 S. E. 304.
36. Plaintiff is entitled to that part of the rents and profits of the current year which is necessary for her support, and to pay debts contracted for her support in past years, which were charged on the rents and profits, but is not entitled to have a share of rents and profits accumulated from year to year since the execution of the deed, as the pro- vision was for her current support.-Barnes v. Barnes, (N. C.) 10 S. E. 304.
INDICTMENT AND INFORMA- TION.
See, also, Bigamy, 2; Burglary, 2-4; Escape; Gaming, 2; Homicide, 17-19; Intoxicating Liq- uor, 14-16; Larceny, 2-4.
For unlawfully removing crops, see Landlord and Tenant, 23, 24.
Sale of mortgaged property, see Chattel Mort- gages, 9.
1. A recital in an indictment that "the jurors upon their oath present" sufficiently shows, on mo- tion in arrest, presentment in open court.-State v. Weaver, (N. C.) 10 S. E. 486.
2. Where defendant is committed for trial dur- ing a term of court, that term is not to be counted as one of the two terms at which Code Va. 1887, § 4001, provides that he must be indicted. Overrul- ing Hall's Case, 78 Va. 678.-Glover v. Common- wealth, (Va.) 10 S. E. 420.
3. Const. N. C. 1776, provided that indictments should conclude "against the peace and dignity of the state." The constitution of 1868 omits this pro- vision. Code N. C. § 1183, provides that an indict- ment shall not be quashed, nor the judgment thereon stayed, by reason of any informality or re- finement. Held, that a judgment will not be ar- rested for omission of the words "against the peace and dignity of the state," from the indictment.— State v. Kirkman, (N. C.) 10 S. E. 312.
4. Under Const. Va. art. 6, § 26, requiring in- dictments to conclude, "against the peace and dig- nity of the commonwealth, an indictment which contains, in addition to the words quoted, the name of the state, is sufficient.-Brown v. Common- wealth, (Va.) 10 S. E. 745.
5. In Virginia, the signature of the attorney for the commonwealth is not essential to the validity of an indictment.-Brown v. Commonwealth, (Va.)
Description of offense.
6. Unless time enters into the nature or is made part of the description of an offense, it may be shown that it was committed on any day before
the finding of the indictment.-State v. Howard, (S. C.) 10 S. E. 831.
Joinder of counts-Election.
7. Where there are two counts in an indictment, drawn to meet different phases of the same trans- action, the prosecution need not elect on which count a conviction will be asked.-State v. Phillips, (N. C.) 10 S. E. 463. Amendment.
8. After defendant has been put on trial un- der an accusation, the jury sworn, testimony sub- mitted, and argument of counsel in part made, it is error to amend the accusation so as to allege the county in which the offense was committed.— Conley v. State, (Ga.) 10 S. E. 123. Statutory offense contract.
9. An indictment under Gen. St. S. C. § 204 for the violation of a written contract to serve as a laborer, which fails to set out the contract, or to show that the contract alleged to have been vio- lated was of such a character as that described in the statute, does not charge an indictable offense. -State v. Williams, (S. C.) 10 S. E. 876. Variance-Aider.
10. A variance between the averments of an in- dictment and the proof is not available on a mo- tion in arrest of judgment.-State v. McLain, (N. C.) 10 S. E. 518.
See, also, Guardian and Ward; Parent and Child.
Actions-Service of process.
1. Under Code S. C. § 155, subd. 2, requiring a summons in an action against a minor under the age of 14 to be delivered to such minor person- ally, and also "to his father, mother, or guardian, the service on the father will not be held insufi cient as being intended to make the father himself. and not the infant, a party to the action, where the summons, with a notice attached as to the appointment of a guardian ad litem, and making express reference to the infant, was delivered to the father, and where the infant appeared by a guardian, and defended, in the case.-Faust v. Faust, (S. C.) 10 S. E. 262.
where it does not appear that their guardian ad 2. Depositions cannot be read against infants litem was served with notice.-Walker v. Grayson, (Va.) 10 S. E. 51.
INJUNCTION.
Temporary injunction.
1. It is no abuse of discretion to refuse a tem- porary injunction against the erection of buildings for the storage of explosives, where the evidence is conflicting as to the damages to the applicant.- Born v. Lofin & Rand Powder Co., (Ga.) 10 S. E. 738.
2. A temporary injunction will be modified so as to allow a railroad company to complete over its own land a side track already commenced, and to use the same until a final adjudication of the cause; this side track not touching any property of the complainants, and its construction and use being more likely to lessen than increase their annoyance or damage for the present-Savannah, A. & M. Ry. Co. v. Fort, (Ga.) 10 S. E. 1014. Against trustee's sale.
3. Where plaintiff is in possession of land un- der a claim of title, he is not entitled to an injure- tion to restrain another from selling the land as trustee, where the right of the latter to make such sale, and also plaintiff's title, depend entirely on the construction of recorded instruments, as plain- tiff's defenses will be equally available against purchaser at such sale, and he cannot be prejudiced by delay.-Browning v. Lavender, (N. Ĉ.) 10 S. E. 77.
4. A mortgage sale will not be enjoined be- cause of want of legal authority in defendant to sell, as, if she has no power to sell, the sale will be a nullity. Chapman v. Younger, (S. C.) 10 S. E. 1077.
Against action at law.
5. It is no abuse of the discretion of the court to grant an injunction against an action of eject- ment, upon the petition of one who alleges that she has a vested remainder in the land in dispute, aft- er the life-estate of defendant in ejectment; that the latter has acknowledged service in the eject- ment suit, but has concealed the pendency of the suit from petitioner; and that petitioner believes that a fraudulent conspiracy exists between the parties in ejectment to suffer plaintiffs to recover, and to allow them to buy the land at a sale for cer- tain taxes which have never been paid, although the tenant enjoys a large income from the land, in order to interpose a tax-title to defeat petitioner's rights.-Kendy v. Beatty, (Ga.) 10 S. E. 267. Against interference with water supply. 6. Equity has jurisdiction to restrain an un- lawful interference with the water supply of the depot of a railroad company, whereby the latter is obliged, either to provide water for drinking and other purposes, at heavy and continual expense and inconvenience, or to have its water-closets closed or used without water, at the risk of becoming a nuisance, as this is an irreparable damage, for which there is no adequate remedy at law. -Diffen- dal v. Virginia M. Ry. Co., (Va.) 10 S. E. 536. To restrain construction of street rail- way.
ognized the porter as the same one who on a for- mer occasion had performed similar services for him, but did not know that the wagon which brought the baggage was run by another per- son than the hotel proprietor, and when he paid his fare on the former occasion supposed it was to the hotel. The omnibus and wagon were the usual mode of conveyance from the depot to the hotel by agreement of the owner thereof with the hotel proprietor, and one of the omnibuses bore the hotel's name. The baggage was lost aft- er it had been delivered by the railroad company to the holder of the check. Held, that the hotel proprietor was liable therefor, although the porter was not authorized to receive baggage or checks therefor from guests at the depot, but merely to advertise and solicit patronage for the hotel.-- Coskery v. Nagle, (Ga.) 10 S. Ě. 491.
2. Plaintiff's failure to inform the porter that his valise contained valuable clothing and jewelry was not negligence.-Coskery v. Nagle, (Ga.) 10 S. E. 491.
INSANITY.
As a defense, see Homicide, 20-27. Evidence.
Evidence as to a person's sanity or insan- ity at the time of trial is competent to show the condition of his mind at a previous period, when some act was done by him which depends for its validity on his mental capacity; its competency Berry v. Hall, (N. C.) 10 S. E. 903. not being affected by the mere lapse of time.-
See Assignment for Benefit of Creditors; Bank- ruptcy.
7. An injunction against the construction of a street railway should be dissolved where the com- pany gives a sufficient bond, conditioned to pay all damages that might be recovered or assessed in favor of plaintiff, none of his property being See Trial, 9-17. sought to be taken, and the conflicting evidence making it doubtful that it would be damaged.- Fouche v. Rome St. R. Co., (Ga.) 10 S. E. 726. Procedure.
8. Code N. C. § 340, provides that an injunction shall not be allowed after defendant has answered, unless on notice, or on an order to show cause, etc. Held, that where a motion for an injunction is made in term-time, and defendant is in court, and actually appears by counsel and resists the mo- tion, she will be deemed to have taken actual notice thereof and to have waived formal notice.-Hemp- hill v. Moore, (N. C.) 10 S. E. 313. Appeal-Reversal.
9. A decree continuing an injunction restrain- ing railroad companies from building a track along a certain strip of land until the hearing will not be reversed on appeal by defendants, where they have built their track, as originally intended, on another strip claimed by plaintiff, but on which the court finds defendants are not trespassers.- Town of Durham v. Richmond & D. R. Co., (N. C.)
1. One who hires a barge of another to use for his own profit, and has it in his actual custody and control, has an insurable interest therein.- Murdock v. Franklin Ins. Co., (W. Va.) 10 S. E.
Assignment of policy.
2. In an action by the administrator against the assignee of a life insurance policy, it appeared that the insured gave his note to the insurance agents for the first premium, which note was dis- counted by the assignee, he taking the policy as collateral security; that, the note not being paid, the assignee drew up an absolute assignment, au- thorizing him to collect the policy, "provided that in the mean time this assignment and power be not canceled and annulled, "but this was never ex- ecuted by the insured; that afterwards the as- signee wrote the insured a letter, claiming that the original agreement was that, "as long as I paid the premium, the policy was to be mine, and you were to assign it to me;" that, after paying sev-
10. Neither will it be reversed, on appeal by plaintiff, as to the strip not covered by the injunc-eral of the premiums, the assignee procured an as- tion, where the evidence as to plaintiff's rights as to such strip is conflicting.-Town of Durham v. Richmond & D. R. Co., (Ga.) 10 S. E. 208.
INNKEEPERS.
Liability for loss of baggage.
1. At a certain depot plaintiff was directed to an omnibus which was to carry him to defend ant's hotel, by a porter who cried out the name of the hotel and wore it on his cap. Plaintiff deliv- ered the check for his baggage to the porter, and told him that he was anxious to have it promptly, to which the porter replied that it would come right along in another wagon. In plaintiff's presence the porter then gave the check to another man, who, plaintiff testified, he "did not know was any other than an uttuché of the hotel." Plaintiff rec-
signment absolute on its face; and that on the death of the insured he had collected the policy. Held, that the assignment was merely to secure the amount of the premiums paid.-Roller v. Moore's Adm'r, (Va.) 10 S. E. 241.
3. The assignee could retain no more of the proceeds than the amount of premiums paid by him, even had the assignment been absolute, be- cause a creditor has no greater insurable interest in the life of the insured than his actual indebted- ness.-Roller v. Moore's Adm'r, (Va.) 10 S. E. 241. Conditions of policy-Arbitration.
4. The rejection by assured of an offer by the insurance company of a certain amount in settle- ment of damages to the insured property consti- tutes a "difference" between the parties, within the meaning of a condition in the policy that ev- ery "difference" as to the amount of loss or dam-
age shall be submitted to arbitration before action | made; in which case it may be 8 per cent.-Trim- is brought.-Pioneer Manuf'g Co. v. Phoenix Assur. ble v. Hunter, (N. C.) 10 S. E. 291. Co., (N. C.) 10 S. E. 1057.
7. Plaintiff admitted that defendant's agent, at an interview, submitted two propositions to arbitrate, one on a printed form; but his evi dence showed that thereafter the agent denied de- fendant's liability. Held, that evidence was ad- missible for defendant that plaintiff "refused to sign the printed form of submission, stating to witness, as a reason, that it contained a provision that the appraisers should not decide the liability of the company," for the purpose of showing why the alleged denial of liability was made.-Pioneer Manuf'g Co. v. Phoenix Assur. Co., (N. C.) 10 S.
2. A bond, conditioned for payment in annual installments, and, "if there should happen to be with interest after that day at the rate of one and any delay in either of the payments thereof, then one-half cents per month on each dollar," bears interest at the rate of 18 per cent. on each install- lis v. Sanders, (S. C.) 10 S. E. 824. ment from its maturity until payment in full—El-
On allowance in lieu of dower.
3. Where the mode adopted by decree of ascer- taining the amount of money which a widow is according to life and annuity tables the value for to have absolutely in lieu of dower is by computing her life of one-third of the proceeds realized by a sale of the husband's realty, the amount thus ar- rived at is not to be augmented by the addition of interest thereon from the husband's death, or from any other period, if the decree is silent as to in- terest.-Johnson v. Moon, (Ga.) 10 S. E. 193. Running of interest.
ey, the sum named therein became due on the pres- 4. Where, by an order for the payment of mon- entation of the order to the drawee, the payee was entitled to interest from that time.-Brem v. Cov- ington, (N. C.) 10 S. E. 706.
is no fraud or misconduct by the party receiving 5. Where money is paid by mistake, and there it, interest does not run until after demand. Prior to demand, by suit or otherwise, the receiver is in no default.-Georgia Railroad & Banking Co. v. Smith, (Ga.) 10 S. E. 235.
6. The law in force at the time of the render- ing of a verdict governs as to the interest to be al- lowed upon the sum found by the verdict, and not the law in force at the time of the rendition of the judgment, it not clearly appearing that the later dock v. Franklin Ins. Co., (W. Va.) 10 S. E. 777. law is intended to operate retrospectively.-Mur-
8. The policy provided that each party should select an arbitrator, and that the award should be "binding and conclusive as to the amount of such loss or damage, but shall not decide the liability of said insurance company," and that the submis- sion should be "at the written request of either party. Defendant insurance company submitted a proposition conforming to the provisions of the policy, and also, by letter, formally requested an arbitration, referring to "a paper indicating an agreement for that purpose, "executed by the company, and which it requested plaintiff to sign. Held, that an instruction that, if the let of parties, see Attachment, 4, 5. ter was accompanied by the proposition, this con- stituted a written request, within the meaning of the policy, was erroneous, as being to the effect that neither the letter nor proposition, taken sep- arately, was sufficient; and the error was not cured by a subsequent reference to the proposition as the "request in writing. "-Pioneer Manuf'g Co. v. Phoenix Assur. Co., (N. C.) 10 S. E. 1057.
INTOXICATING LIQUORS.
Constitutionality of acts.
which provides that no person, without a state 1. That portion of Code W. Va. 1887, c. 32, § 1, license therefor, shall "keep in his possession, for tional and void.-State v. Gilman, (W. Va.) 10 S. another, spirituous liquors," etc., is unconstitu- E. 283.
9. It appeared that plaintiff had said that he would sign no agreement containing the provision objected to. Held, that it was error to refuse an instruction that if defendant's agent did not deny vinous, malt, or other intoxicating liquors in the 2. "An act to prohibit the sale of spirituous, liability until after plaintiff refused to sign a sub-county of Douglas, and to provide a penalty for mission to arbitration, unless the clause providing the violation of the same," is not rendered uncon- that the appraisers should not decide defendant's stitutional, as containing matter different from liability were stricken out, such denial was no that expressed in the title, by the usual provisions waiver of plaintiff's obligation to submit to arbi- as to submitting it to the people of the county, etc., tration.-Pioneer Manuf'g Co. v. Phoenix Assur. as they declare the manner of the prohibition. -Mc- Co., (N. C.) 10 S. E. 1057. Gruder v. State, (Ga.) 10 S. E. 281. Local option.
10. Under a policy of insurance providing that proof of loss shall be furnished to the insurance company within 30 days from the date of the loss, that all claims shall be barred unless prosecuted within 6 months from the same date, and that the loss shall be paid in 60 days after proof of loss, the 6-months limitation begins to run at the close of the 60 days allowed the company for payment, not from the actual loss.-Murdock v. Franklin Ins. Co., (W. Va.) 10 S. E. 777.
3. The general local option law of Georgia, ap- proved Sept. 18, 1885, has a general repealing clause, as to all laws in conflict with it, but in sec- tion 9 expressly provides that no election shall be held under it "for any county, city, town, or any other place in this state, where by law the sale of spirituous liquors is already prohibited either by high license, local option, or other legislation, so long as these local laws remain of force." Held, that section 9 was intended to save from repeal all local laws passed prior to the passage of the act, and approved by the governor, whether they had been adopted by a vote of the people, if so required therein, or not.-McGruder v. State, (Ga.) 10 S. E
1. In providing by a trust-deed for 8 per cent. interest on a portion of the debt secured, the inter- est on the balance was left at 6 per cent., under sec- 4. Act W. Va. Feb. 13, 1871, amending the char- tion 3835 of the Code, fixing the rate of interest at 6ter of the town of New Martinsville, and providing per cent. per annum, except a special contract is that no license to sell spirituous liquors within one
mile of said town shall be granted by the board of | Illegal sales-By agent. supervisors of the county, without the consent of said town, will not prevent the granting of a license to sell spirituous liquors at a place within the town of Brooklyn, with the consent of said town of Brooklyn, and against the objection of said town of New Martinsville, though the place at which such liquors are to be sold be within one mile of the cor- porate limits of the town of New Martinsville.- Town of New Martinsville v. Dunlap, (W. Va.) 10 S. E. 803.
11. Code Ga. § 4540a, makes it an offense for one, by himself or another, to sell or furnish liquors to a minor without written permission of the par- ent. The Code makes it a distinct offense where the liquor is sold by a person other than defendant, and not by his order or direction, if he permit it to be done. Held, that an instruction that section 4540a makes all people connected with the sale re- sponsible whenever a minor is furnished therewith without written authority, and it matters not whether the proprietor knew the facts and con- sented to it, and his offense is complete if the liq- uor was sold to the minor by any one acting in his place of business, is incorrect, as the section cov- ers only sales by a person, through himself or an- other, and does not cover sales by those in his em- ploy without his permission.-Johnson v. State, (Ga.) 10 S. E. 207.
5. Code Ga. § 1419, as amended by Acts 1884- 85, pp. 59, 60, provides that the applicant for a liquor license shall present to the ordinary, or com- missioners of the county, the written consent of the nearest bona fide residents, five of whom shall be freeholders owning land, irrespective of county lines, nearest the place of business where such spirituous liquors are to be sold: provided, that the act shall not apply to incorporated towns or cities. Held, that the persons residing nearest the place where the liquor is to be sold are the persons who are to give their consent, and it makes no dif- ference whether they reside in a different county from that of the applicant's residence, or whether 13. An instruction that, by the terms of the they reside within an incorporated town or city.-tatute, a sale by a liquor dealer, either by him- Ballew v. State, (Ga.) 10 S. E. 623. self or by another for him, is in violation of the law, is correct-Johnson v. State, (Ga.) 10 S. E. 207.
6. Act N. C. 1887, c. 135, § 31, prescribes that every one selling liquor shall pay a license tax semi- annually (1) for selling in quantities of one quart or less, $40, "to be * paid to the treasurer of the county board of education, for the benefit of the fund for public schools in such county;" (2) for selling in quantities of one quart and less than five gallons, $25, to be paid into the same fund; and (3) for selling in quantities of five gallons or more, $100, "to be paid to the treasurer of the state;" and provides that "counties may levy not more than as much tax as the state under this sec- tion. " Code N. C. § 707, provides that the county commissioners shall have power to levy, "in like manner with the state taxes, the necessary taxes for county purposes, but the taxes so levied shall never exceed the double of the state taxes." Held, that the first and second classes of taxes mentioned in the act of 1887 were not for county but for state purposes, and the county authorities might impose a license tax on all persons coming within them.- Parker v. Wayne County, (N. C.) 10 S. E. 137. Illegal sales.
7. The delivery of whisky as compensation for the use of a buggy, in performance of an agree- ment so to do, is a sale of the whisky.-Paschal v. State, (Ga.) 10 S. E. 821.
8. One who receives money and delivers whisky therefor may be treated as the seller, no other person filling that character in the transac- tion being pointed out by the evidence.-Paschal v. State, (Ga.) 10 S. E. 821.
12. Such instruction is not reversible error where the evidence shows that the accused was present when the sale was made by his clerk, as this is the same as if he himself made the sale.- Johnson v. State, (Ga.) 10 S. E. 207.
Criminal prosecution—Indictment.
14. Where an indictment against a physician, under Laws N. C. 1887, c. 215, § 4, for giving false and fraudulent prescriptions for liquors, is in sev- eral counts, each of which charges the giving of a prescription to a different person, the prosecution may be compelled to elect on which count it will proceed.-State v. Farmer, (N. C.) 10 S. E. 563.
15. The indictment need not charge that defend. ant is a "reputable physician. "-State v. Farmer, (N. C.) 10 S. E. 563.
16. The indictment should set out distinctly, not only that the prescription was either false or fraudulent, but in what the falsehood or fraud con- sisted.-State v. Farmer, (N. C.) 10 S. E. 563.
17. On a trial for the illegal sale of intoxicating liquors, a charge that if defendant gave the whisky away, it would be the same as if he had sold it, is harmless error, where the sale has been proved.- McGruder v. State, (Ga.) 10 S. E. 281.
Of causes, see Action, 4.
counts, see Indictment and Information, 7. Judge.
9. In an action before a justice of the peace for See Justices of the Peace. violation of Code N. C. §§ 2640, 2646, prohibiting the sale of spirituous liquors at Chapel Hill, or within four miles thereof, the affidavit set forth that defendant did, in Chapel Hill township, sell spirituous liquors to one S., and received compen- sation therefor at Chapel Hill, or within four miles thereof, "contrary to law," etc., and the warrant directed the arrest of defendant "to answer the above complaint, and be dealt with as the law di- rects." Held, that the warrant must be read in connection with the affidavit, and was sufficient.- State v. Sykes, (N. C.) 10 S. E. 191.
10. In an action for violation of Code N. C. SS 2640, 2646, prohibiting the sale of spirituous liquors at Chapel Hill, or within four miles thereof, where there was evidence that the contract for the sale of the liquor was made within 4 miles of Chapel Hill, and that afterwards defendant brought the liquor from his distillery, 12 miles distant, and de- livered it within 4 miles of Chapel Hill, there being no evidence that defendant sold and delivered a particular gallon, or any quantity, of whisky at the distillery, the court correctly refused to instruct the jury that, unless the contract for the delivery of whisky was relative to a particular gallon then set apart at defendant's distillery, there was no sale within Chapel Hill.-State v. Sykes, (N. C.) 10 S. E. 191.
Actions on, see Limitation of Actions, 4, 5. In criminal cases, see Criminal Law, 54-57. By default-Practice.
1. Where defendant in assumpsit has filed no plea, and no issue has been joined, the only ques- tion is the quantum of damages, and that only after an office judgment and an order for inquiry of damages, and it is error to try the case as if issue had been joined, and allow defendant to cross-examine and to demur to the evidence.-Petty v. Frick Co., (Va.) 10 S. E. 886.
2. Such error is not cured by the statute of jeofails, for that statute cures misjoinder or in formal joinder of issue, but not non-joinder or want of issue altogether.-Petty v. Frick Co., (Va.) 10 S. E. 886.
3. Where the original process, and the return thereon, show that a defendant was not included in either, a judgment against her is void, as the presumption of jurisdiction is overcome.-Blanton v. Carroll, (Va.) 10 S. E. 329.
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