on the top of the embankment. (5) If the jury find from the evidence that the horse came upon the track or embankment of the defendant company too near the engine and cars for the engineer, by the use of the appliances under his control, and which he could use with safety to the passengers and employes, to stop the train, before striking the horse, they will answer the first issue, ‘No.'" ment was 150 yards long, 10 feet high, and very steep; that the whistle did not blow till the engine was within 50 yards of the mare; that she jumped, and almost immediately was struck by the train; and that no effort was made to stop the train or slacken its speed. The testimony of defendant went to show that the mare came up the embankment 20 yards ahead of the engine, and too late to stop the train, which could not have been stopped, at the rate it was The defendant assigns as error the failgoing, under 350 yards. There were no ex-ure to give the instructions asked, and the ceptions to the evidence. instructions as given. The instructions asked by defendant were given by the court, except the following: First. It is not required of an engineer in running trains to stop his train when persons are on the ground near the track, nor is there greater deference due to livestock than to human beings. Second. If the defendant used every effort to stop the train and avoid the accident after the mare was discovered, then there was no negligence, and the plaintiff cannot recover. Third. If an engineer in charge of the locomotive drawing a train discovers cattle either upon the track, or approaching the same, as if they were coming upon the track, blows his whistle, reverses his engine, and does all in his power to stop, and fails to do so, he is not negligent, and the plaintiff cannot recover. The first prayer for instruction asked and refused is based upon the idea that live-stock on the approach of the locomotive will show the same judgment and discretion as human beings under the same circumstances. "It was reasonably certain that the horse would be frightened," said the late chief justice in Snowden v. Railroad Co., 95 N. C. 93, "when he saw what was rapidly, in appearance, coming upon him, and would not remain quiet when it passed within three feet of him. He would be quite as apt, as he did in fact, after rushing a short distance along the ditch, to leap upon the road, as upon the opposite bank. This possible, if not probable, action would suggest itself to any careful and considerate person, and the necessity of being on the lookout, and taking proper precautions, such as slowing the locomotive, to guard against mishap and danger." But the proposition is too reasonable to need citation or discussion. the proper modification, that the test was not whether proper effort was used “after the mare was discovered, but after, by the exercise of a proper outlook, she could have been discovered." Wilson v. Railroad Co., 90 N. C. 69. The court, in lieu thereof, instructed the jury that "it was the duty of the defendant to keep a lookout for stock on the track in daylight, and when discovered to use all the means it could, consistent with The charge as given, in lieu of the first the safety of the passengers and the opera- prayer, is correct. The second prayer for tors on the train, to avoid injuring or kill-instruction was substantially given, with ing them; that the main questions for the jury in this case were: (1) Was the horse on the track of the defendant company sufficiently long, after she could by the exercise of an ordinarily diligent outlook be seen by defendant or its employes running the train, to have been discovered, for The third prayer was substantially givthe train to have had its speed slackened, en. The defendant has no ground to comor, if necessary to prevent the killing, plain because the exact language of its stopped? (2) Were all the means that prayer is not given, if it is substantially could, with safety to the passengers and given. State v. McNeill, 92 N. C. 812; Conoperators, have been used, used by the de- well v. Mann, 100 N. C. 234, 6 S. E. Rep. 782. fendant, after the horse could by an ordi- Indeed, the charge as given is open to the narily diligent outlook have been discov- exception that it is too favorable for deered, to prevent the killing. (3) The ques- fendant, in that the jury were instructed tion as to the time the horse was discov- that the burden was on the plaintiff to ered on the track by the engineer or other show that the horse was killed in conseemployes of the defendant company is not quence of the negligence of the defendant. when it was actually seen, but when, by The action having been brought within the exercise of ordinary care and diligence six months after the cause of action acin looking out, it could have been seen; crued, the statute raised a presumption of and this is a question of fact for the jury negligence on the part of the defendant, to find from the evidence; and the burden and the burden is on it to rebut such preis upon the plaintiff to show to their sat- sumption. Code, § 2326; Pippen v. Railisfaction, by a preponderance of the testi- road Co., 75 N. C. 54; Wilson v. Railroad mony, that the outlook was not such as it Co., 90 N. C. 69. There is no error in the should have been under the instructions refusal of instructions, nor is there any in above given, and that in consequence of the charge as given, of which the defendthe negligence of the defendant the horse ant can complain. It is proper, however, was killed. (4) If, by an ordinarily careful to say that a general exception to a outlook, the horse could have been discov-"charge as given,' without specifying ered in time to have allowed the train to be error, will not be considered in this court. stopped before killing the horse, and it This has been repeatedly held by this was not so stopped, it would be negli- court in numerous decisions, and has been gence, and the plaintiff would be entitled reaffirmed in Dugger v. McKesson, 100 N. to a verdict on the first issue, and your C. 1, 6 S. E. Rep. 746; Hammond v. Schiff, verdict should be, 'Yes:' provided you 100 N. C. 161, 6 S. E. Rep. 753. No error. find from the evidence that the horse was Affirmed. LINDSEY V. SANDERLIN. (Supreme Court of North Carolina. Dec. 16, 1889.) APPEAL PRACTICE ASSIGnment of ERRORS. A general exception "to the charge as giv. en," without assigning errors specifically, will not be considered by the supreme court. Following Carlton v. Railroad Co., ante, 516, and McKinnon v. Morrison, ante, 513. Appeal from superior court, Currituck county; BOYKIN, Judge. Grandy & Aydlett, for appellant. Starke & Martin, for appellee. SHEPHERD, J. The argument of the plaintiff's counsel was addressed to the general character of his honor's charge in reference to negligence. We regret that we are precluded from passing upon that question. There is not only a failure to assign error, decided McKinnon v. Morrison, ante, 513, and Carlton v. Railroad Co, ante, 516, (at this term,) but the case expressly states that the instructions given were not excepted to. The judgment, therefore, must be affirmed. STATE V. MCLAIN. (Supreme Court of North Carolina. Dec. 16, 1889.) ESCAPE-INDICTMENT —VARIANCE-ARREST OF JUDGMENT-INSTRUCTIONS. 1. Code N. C. § 1022, making it a misdemeanor for a sheriff, constable, or jailer to "willfully or negligently" permit any person in his custody to escape, intends to prescribe two distinct kinds of escape,-one that is willfully permitted; another that is negligently permitted; and an indictment charging that the escape was "unlawfully and negligently permitted" by defendant is good. 2. An indictment against a sheriff for permitting an escape charged that the capias against J. (defendant's prisoner) was issued on an indictment against J. and H. The evidence showed that the solicitor had drawn a bill against J., H., and W., which the grand jury returned "a true bill" as to J. and H., and "not a true bill" as to W. Held, that there was no variance. 3. A variance between the averments of an indictment and the proof is not available on a motion in arrest of judgment. 4. It is not error to charge that the jury should find defendant guilty, if they believe the evidence, when the evidence is not conflicting, and there are no variant aspects of it to be submitted. Appeal from superior court, Jackson County; CLARK, Judge. Indictment for unlawfully and negligently permitting an escape. Defendant was convicted, and appeals. The Attorney General, for the State. |J. C. Hooper had been issued upon an in- "when any person charged with a crime or The MERRIMON, C.J. The indictment charged that the defendant, while sheriff of the county of Jackson, duly had in his custody by virtue of proper process, a person named therein, charged with a misdemeanor, and that while such person was in his The second ground of arrest of judgment custody he was unlawfully and negligent- assigned is without force, in any aspect of ly permitted to escape and go at large, it. The indictment, strictly speaking, was whithersoever he would," etc. Upon a against only the two persons, as to whom verdict of guilty, the defendant moved in it was found "A true bill." As to the third arrest of judgment upon the grounds-party, there was no indictment. Strictly, First, because the bill of indictment did not charge that the escape was "willful and negligent," but merely "negligent and unlawful;" secondly, because the bill of indictment charged that the capias against the indictment was but a simple bill until the grand jury presented it a "True bill." Then, and not till then, it became properly an indictment State v. Ivey, 100 N. C. 539, 5 S. E. Rep. 407. Moreover, if there had been a substantial variance between the charge | tains fell back to the house. The defendant and the proof, this could not be taken ad- J. P. Chastain testified that he did give the vantage of by a motion in arrest of judg-information to his brother, and soon therement. This motion must be based upon some matter appearing on the face of the record. The objection that the court instructed the jury that they should find the defendant guilty, if they believed the evidence, cannot be sustained, because it was not conflicting. There were no variant aspects of it to be submitted. If it was true, the defendant was guilty in law. Otherwise, he was not. The court did not tell the jury that they ought or ought not to believe it. It expressed no-not the slightest-opinion as to whether the evidence should be believed or not. State v. Vines, 93 N. C. 493, and the cases there cited. Judgment affirmed. STATE V. CHASTAIN et al. (Supreme Court of North Carolina. Dec. 16, 1889.) INSTRUCTIONS APPEAL CRIMINAL LAW TIORARI. after went out, with his rifle, but that he took no part in the firing, but took a position on a ridge 150 yards from his brother, and behind him; that he was in sight of his brother during the whole fight; that Anderson fired first; that he (J. P. Chastain) was not aiding or abetting his brother, nor taking any part in the fight, but was only a spectator; that, when the balls from the Anderson party began to fall around him, he fell back to the house; that the Anderson party, for a couple of hours, "rained" balls on the side and roof of the house, though neither he nor his brother replied to them. There was much other evidence, not necessary to state. There was no objection to the testimony. The court charged, in addition to matters not excepted to and here not set out: "That, if the jury were satisfied beyond a reasonable doubt, that Anderson was fired upon by a person or persons lying concealed in CER- ambush, hid in the bushes, and covered by darkness, such shooting was with intent to kill; and that if J. P. Chastain was present, taking part in such shooting, or present, aiding and abetting, he was guilty. If he was 150 yards in the rear, but in sight of the shooting, armed with his rifle, and he was there with knowledge that his brother was to assault Anderson, by lying in wait, with intent to kill, and his purpose was to afford aid and assistance to his brother, if hard pressed, and he was acting as a second line of battle or backer to his brother, the testimony being that his rifle would carry to the spot of the fighting, he would be aiding and abetting, and guilty as a principal." The rest of the charge is not set out. After verdict, counsel stated there was no exception he could take as to E. H. Chastain, but he moved for a new trial as to J. P. Chastain, assigning as sole error that part of the charge that "if J. P. Chastain was 150 yards in the rear, but in sight of the shooting, armed with his rifle, with knowledge that his brother was to 1. On indictment for assault with intent to kill, it appeared that defendant J. went to the house of defendant E., before daylight, and told him that the assaulted persons were tearing down a fence, and taking his gun followed E., who opened fire from some bushes. The state's evidence tended to show that J. joined in the attack, but he testified that he did not shoot, but stopped 150 yards bebind, until the balls caused his retreat. Held, that the court properly charged that if J. was 150 yards in the rear, armed with his rifle, knowing that E. was lying in wait, with intent to kill, and his purpose was to aid E., he was aiding and abetting, and would be guilty as principal. 2. A defendant in a criminal action who has withdrawn his appeal, and allowed the withdrawal to be entered of record, may renew and perfect his appeal within the time prescribed. 3. Where a defendant joins in an appeal, but takes no exceptions and assigns no errors, his motion for a writ of certiorari to bring up the record will not be granted. Appeal from superior court, Clay county; CLARK, Judge. This was an indictment for a secret assault, with intent to kill, drawn under chap-assault Anderson from lying in wait with ter 32, Laws 1887, tried at the fall term, 1889, intent to kill, and his (J. P. Chastain's) of the superior court of Clay county, before purpose was to afford aid and assistance CLARK, J. Of the four defendants on trial, to his brother, if hard pressed, and was actE. H. Chastain and J. P. Chastain were ing as a second line of battle and backer found guilty. It was in evidence for the for his brother, he would be aiding and state that before day, on June 11, 1889, J. abetting, and guilty as a principal." MoS. Anderson and others were fired upon by tion for new trial denied. After sentence, a party lying hid in the bushes on the creek counsel entered an appeal for both the bank; that the number and frequency of Chastains, but, after conferring with his the shots, which were immediately re- counsel, E. H. Chastain, in open court, withsponded to by Anderson and party, indi- drew his appeal, and in his hearing, and cated the presence of more than one per- with his assent, the withdrawal of appeal son; that, after daylight, E. H. Chastain was entered of record. It appeared that and J. P. Chastain were recognized, in after withdrawing his appeal, E. H. Chasfalling back from the bushes to the house, tain renewed it by giving notice, and perand afterwards both were seen to fire from fected it by filing bond. The statement the house. It was also in evidence that J. of case on appeal was thereupon made by P. Chastain came to the house two hours the judge for both defendants, with consent before day, and told his brother, E. H. of counsel. The defendant E. H. Chastain Chastain, that Anderson and party were offered the following affidavit, in substance: armed, and tearing down the fence; that "That he was tried and convicted at fall E. H. Chastain, armed, went immediately term, 1889, of said court, and appealed from in that direction; that J. P. Chastain soon the judgment; that his appearance bond followed with his gun, and immediately and appeal-bond, in the sums fixed by the thereafter the firing began; that it was re- court, were justified and filed within the sponded to; that after daylight the Chas-time prescribed by law; and notice of ap. J. W. Cooper, for appellants. The Attorney General, for the State. peal was served on the state solicitor, ac- | another appeal, as suggested by counsel, cording to law, but no case has been made for conflicting testimony as to the characor sent to the supreme court; wherefore ter of the weapon. Our attention must be he asks that the proper writ issue to have confined to the facts appearing in this recthe record brought up." Upon the affida- ord. It seems to us that there was abunvit he moves the court, after argument, on dant testimony to make it the imperative the regular call of the docket, for a writ of duty of the judge to instruct the jury certiorari to bring up the appeal of E. H. that the defendant might be guilty as prinChastain. cipal, because of aid and encouragement given by him to the other defendant, even if they believed that he did not actively participate in the attack made by his brother; and the instruction is couched in such language as to give them a clear comprehension of the law. There is no intimation in the charge of his honor that any disputed fact was or was not fully proven by the testimony, and it is not therefore amenable to objection as an expression of opinion on the facts. Code, § 413. AVERY, J., (after stating the facts as above.) The defendant J. P. Chastain excepted to so much of the charge of the court as related exclusively to the question of his guilt, and relies solely upon the ground of error in misdirecting the jury. As to him, the case was submitted in two aspects, both of which naturally arose out of different views of the evidence. There was no exception, as expressly apFirst the jury were told that "if the testi- pears from the statement of the case on mony should satisfy them beyond a rea- appeal, on behalf of E. H. Chastain, either sonable doubt that Anderson was fired to the admission of testimony or the upon by a person or persons lying con- charge of the court. The statement is that cealed in ambush, hid in the bushes, and "the court charged, in addition to matcovered by darkness, such shooting was ters not excepted to," as already stated; with intent to kill, and that, if J. P. Chas- and, after embodying in the statement tain was present, taking part in such that portion of the charge objected to for shooting, or present, aiding and abetting, J. P. Chastain, the judge states that the he was guilty." It was not contended by "rest of the charge is not set out," for the counsel that the judge did not state the obvious reason that no exception was law correctly in the first proposition. It taken to it, and no error assigned. The was insisted that the other view submit-case on appeal appears to have been statted was erroneous because it was not ap-ed for both defendants. E. H. Chastain plicable to the testimony, and for the rea- first withdrew, and then renewed and person that it contained an intimation of fected his appeal. He had a right to do opinion on the facts. His honor's addi- so, within the time prescribed by law, if he tional instruction was that "if he (J. P. had no other object to attain but to deChastain) was one hundred and fifty yards lay the execution of his sentence. As it apin the rear, and in sight of the shooting, pears, not only that he did not actually armed with his rifle, and he was there assign error, but that he did not object to with knowledge that his brother was to any ruling of the court as a ground of moassault Anderson, by lying in wait, with tion for a new trial, we must assume that intent to kill, and his purpose was to af- there was no error, and must refuse the ford aid and assistance to his brother, if motion for a writ of certiorari. We therehard pressed, and he was acting as a sec-fore conclude that judgment must be ond line of battle or backer to his brother, affirmed as to both defendants. No error. the testimony being that his rifle would Judgment affirmed. carry to the spot of the fighting, he would be aiding and abetting, and guilty as a principal." It appears from the testimony offered on both sides that J. P. Chastain went to the house of his brother two hours before daylight, and told him that Anderson and others were tearing 1. An administrator, having under an order down a fence; and that E. H. Chastain im- of court sold land of his decedent for payment mediately went out with his gun, closely of debts, which order also provided that the profollowed by his brother, J. P. Chastain, ceeds, after payment of the debts, should be real who was also armed; and, according to all assets, deposited the proceeds, before paying the the evidence, it seems that the former debts, with the clerk of the superior court, who gave a receipt, with the letters "C. S. C. " appendopened fire on Anderson and his party, un-ed to his signature. Code N. C. § 1543, provides der the cover of the bushes and darkness. that an administrator may pay into the office of the The testimony for the state tended to clerk of the superior court "any moneys belonging prove that the latter advanced with his to the legatees or distributees of the estate," and brother, and joined actively in the attack; that such payment will discharge the administrabut he testified in his own behalf that he tor pro tanto. Held, that under Code N. C. § 72, prostopped 150 yards short of the point from Viding that the clerk of the superior court shall give bond with sureties, to secure all moneys which which his brother, E. H. Chastain, was fir- may come into his hands by "color of his office," ing, and did not shoot at all, though he re- the sureties of the clerk were liable for the mained in sight of his brother during the amount of such deposit. whole encounter, until the balls fell so thickly around him as to cause his retreat to the house. It appears as a fact that his gun would carry a ball from the point where he was stationed to the adversary party. We cannot examine the record of THOMAS V. CONNELLY et al. (Supreme Court of North Carolina. Dec. 16, 1889.) CLERK OF COURT-ADMINISTRATORS. 2. There being unpaid debts which it was the administrator's duty to pay, the fund deposited was not the property of the heirs, and the administrator was entitled to sue for it. Appeal from superior court, Iredell county; BROWN, Judge. This is an action by A. J. K. Thomas, as lars, in part of proceeds of sale of land of administrator of the estate of J. A. T. the estate of J. A. F. Watts. J.B. CONNELWatts, deceased, against J. B. Connelly, | clerk of the superior court of Iredell county, and the sureties on his official bond. There was judgment against Connelly, but in favor of his sureties. Plaintiff appeals. Bingham & Caldwell and M. L. McCorkle, for appellant. Armfield & Turner and W. M. Robbins, for appellees. LY, C. S. C." And for another part of the same he gave the plaintiff a receipt of which the following is a copy: "Received of A. J. K. Thomas, administrator of J. A. F. Watts, $600, in payment of part of sale of land belonging to the estate of J. A. F. Watts, known as the 'Waugh Place,' sold to W. E. Morrison, and bid transferred to F. A. Watts. J. B. CONNELLY, C. S. C." The following is a part of the case agreed and submitted to the court for its judgment thereupon: "(4) The plaintiff administrator aforesaid had not, up to the time of depositing the sums of money before mentioned, nor has he at any time since, made a final settlement of the estate of his intestate. (5) That said J. B. Connelly, clerk as aforesaid, on or about the 15th day of August, 1888, made default in his said office as clerk aforesaid, and has failed to pay over said sums, and has fled the state, and gone to parts unknown, after resigning his said office, and having, prior to such resignation, appropriated the aforesaid sums of money to his own use. Now, therefore, upon the foregoing facts, it is agreed between the parties hereto, that if the court shall be of the opinion that the plaintiff is entitled to recover of the defendants Wallace and others, as sureties on said clerk's bond, in this action, on the above agreed facts, judgment shall be rendered against the defendant J. B. Connelly and his sureties aforesaid for the sum of eight hundred and twenty dollars ($820,) with interest on the same from the 15th day of August, 1888, until paid, and costs of action. But if the court should be of the opinion that the plaintiff is not entitled to recover of the sureties aforesaid on said clerk's bond, upon the aforesaid agreed facts, then judgment shall be rendered for the defendants and their reasonable cost." The court gave judgment whereof the folthat if the money was paid to the clerk, under section 1543 of the Code, only the legatees, etc., therein referred to, or heirs at law, could receive it. It appears from the case, as stated, to have been deposited with the defendant Connelly by the plaintiff administrator before the intestate's debts were paid, and in contravention of the decree of sale and confirmation. The plaintiff was acting in his own wrong. It is admitted to have been deposited, and, the court presumes, for the convenience of the administrator. The mere affixing the letters 'C. S. C.' will not make the bond liable. The court is of opinion that this plaintiff cannot recover of the bond. It is adjudged that the plaintiff recover of J. B. Connelly eight hundred and twenty dollars ($820,) with interest from August 15, 1888, and costs. It is adjudged that the other defendants go without day." The plaintiff, having assigned error, appealed to this court. MERRIMON, C. J. The plaintiff is the administrator of the estate of J. A. T. Watts, who died intestate, in the county of Iredell, in 1883. By his special proceeding, brought in the superior court of that county, against the heirs at law of his intestate, on the 8th day of February, 1887, he obtained license to sell certain of the real estate of his said intestate, to make assets to pay debts of the latter and costs. Sale of the land was made, and the following is a copy of the order of the court confirming such sale: "This cause coming on for further direction, and it appearing that A. J. K. Thomas, administrator of J. A. F. Watts, on the 23d day of April, 1887, sold the land described in the complaint to Wm. E. Morrison, at the price of thirteen dollars per acre, one-fourth for cash, and the remainder on a credit for six months, and he took bond, with surety, for the said remainder of the purchase money, and the sale price appearing to be just and reasonable, and the security good, it is therefore ordered and decreed that the said sale in all things be confirmed, and that the said A. J. K. Thomas proceed to collect said bond when it becomes due, and that he apply a sufficiency of the proceeds thereof to the payment of such debts and charges of administration as the personal estate, and the proceeds arising from the sale of the other lands heretofore sold by him, may have been insufficient to discharge, after first deducting the costs of this proceeding. If any sur-lowing is a copy: "The court considers plus shall remain in the hands of the said A. J. K. Thomas after the payment of the said debts and charges, the same to be considered as real estate, and is to be disposed of by the said Thomas, administrator as aforesaid, among such persons as would have been entitled to the land itself, according to law. It is further ordered by the court, upon the payment of the purchase money, the said A. J. K. Thomas, administrator aforesaid, is to execute a deed to the purchaser for said land. And this cause is retained for further orders. This 14th day of May, 1887." The defendant J. B. Connelly was duly qualified as clerk of said superior court in December of 1886, and gave his official bond in renewal on the first Monday in December of 1887, with the other defendants in this action as sureties thereof. Afterwards, the plaintiff, having sold the land in pursuance of his license so to do, and having collected the purchase money thereof, deposited with the defendant, clerk of said court, a part The question presented by the assignof the money so collected, and the latter ment of error in this case is, are the defendentered a receipt on a docket of the court ants sureties to the official bond of the defor a part of the same, whereof the follow-fendant, late clerk of the superior court, ing is a copy: "May 7th, 1888. Received of A. J. K. Thomas, administrator of J. A. F. Watts, two hundred and twenty dol liable for the default of the latter in respect to the money received by him as such clerk, from the plaintiff? The answer |