Stye tfljarlottt Bitroa:.
SUBSCRIPTION RATES:
Dady, one year, post-void, in advance 88 00
Six month ;: '.' ."i 4.00
Three months. 2.00
One month 75
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Out of the county, Postpaid 2.10
xmonths 1.05
rf Liberal Reduction fbr Club.
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cz
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VOL. XXVII.
Bnz oaas, WlatKiuQ, Set.
JUST RECEIVED
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V NEW YORK.
SUPREME COURT DECISIONS
Reported for the Observer by Walton K. Busbee,
of the Raleigh Bar.
R. O. Burton, ' Jrn adm'r., vs. Fannholt
et ala Hdlifax.
Etjffin, J.:
The plaintiff 8 intestate ericctea un
insurance of $5,000 on his iit'e lor the
benefit of himself, his executors, ad
ministrators and assign 8. He made
voluntary assignment of the policy to
his three daugnters, he being then in
solvent and without sufficient property
to pay his debts. The plaintiff insists
that he has a right to subject so much
of the insurance fund as may be needed
to the payment or the debts.
Three points were raised on the argu
ment.
1st. Whether the transfer of the pol
icy can be held to be fraudulent as to
creditors, upon the ground that it was
voluntary and without valuable consid
eration and that the assignor was at the
time insolvent.
2nd. Whether the fund can be fol
lowed into the hands of the assignees
ana suojected to the payment of debts,
since the policy was but a chose m ac
tion and not itself the subject of exe
cution.
3rd. Whether the plaintiff, as admin
istrator, can maintain this action ; or
wnetner ne is estopped by the assign
ment of his intestate.
The court says :
1st. That when a party makes a vol
untary assignment, and is indebted at
the time to a state of clear insolvency,
the act is fraudulent as to his creditors
and void in law.
2nd. Where the principal creditor is
dead and his personal representative is
incapacitated by the estoppel growing
out of his intestate's assignment, to in
tervene in the matter in any way, so
that there is no judgment in the case,
and by possibility can be none under
which supplemental proceedings can
be conducted, unless an action will lie
directly against the holders of the prop
erty transferred, the law would be
guilty of the inconsistency of allowing
a right, and affording no remedy for its
enforcement. The life policy, notwith
standing its intangible form, or its pro
ceeds in the hands of the defendants
may be reached, and made subject to
the debts of the intestate by anyone
who occupies such a relation to him as
confers a right of action.
3rd. An administrator ennnot main
tain a bill for setting aside a deed on
the ground that it was given by his in
testate to defraud creditors, for he oc
cupies the exact relations to the deed
that his intestate did and is equally
estopped; the defrauded creditor
might have their action against the
fraudulent alienee as executor de son
tort.
The plaintiff is es'opred by his intes
tate's act to deny the title of the defen
dants to the policy.
Judgment reversed. Demurrer sus
tained. Warlick vs. White etald Catawba.
Rtjffin, J. :
In 1863 Joseph Carpenter, being about
to enter the army, made a will wherein
he gave to his son one-half of his land
and one negro, and to his wife all the
balance of his property. In 1864 he
come home; hi3 son having in the
meantime died he executed a deed to
his wife for the whole of his lands and
a bill of sale for all his personal prop
erty. He returned to the army and
died there. Soon after his death his
wife gave birth to a mulatto child. The
plaintiff is the only sister and nearest
collateral relation of the deceased, and
claims to be entitled to one undivided
half of the land as heir to Joseph Car
penter. The court says: That if a wife be an
adulteress, living apart from her hus
band, no court will interfere to have a
settlement made for her even out of
her own choses, "because she is un.
worthy of the court's notice or inter
ference." It would be inconsistent to
make provision tor a wire out or her
husband s estate, wnen ne, u livmg ana
seeking a divorce, the court would be
bound to grant It and thereby dissolve
every bond between them and shut her
out of all participation in his estate.
"He who seeks equity must do so with
clean hands."
If a husband should, by deed, grant
all his estate to his wife, the deed would
be held inoperative, for it could in no
just sense be deemed a reasonable pro
vision for her. which is an tne courts
of equity hold the wife entitled to, and
in giving her the whole estate he would
surrender all his interests. 2 Story Eq.
Juris, sec. 1,374.
Judgment will be entered here for
the plaintiff according to the prayer of
her complaint.
Error.
Still vs. Barham Wake.
Smith C. J.
Motion for certiorari.
The court below has no legal author
ity to allow a defendant twenty days
in which to prepare ana pie an amaavit
of inability, by reason of poverty, to
give the required bond, in support of
an order noade - and entered on the last
day of the term. This -ruling dispensed
with immeaiate enorts to procure me
affidavit even if it were practicable,
during the last day of the term when
the case was concluded, ana it is a
proper case in which to award the writ
ti ; 1
XL is ho uruereu.
Roberts and wife vs. Lisenbee and wife
Buncombe.
Ashe, J.:
This was a civil action heard before
Gilliam Judge, brought for slanderous
words spoken by the wife of the de
fendant against the wife of the plain
tiff. During the pending of the suit
the wife of defendant died, the court
below ordered that the action abate.
Plaintiff appealed.
Held. That the wrong of the wife
was not imputed to the husband, he
was only joined with her ex necessitate
because she could not be sued alone.
He was liable to the action only be
cause of her liability, therefore when
her liability ceased his ceased also. In
Kowing vs. Manly, 49 N. x. R. 192, it
is held, that wnen nusoana ana wire
are jointly sued for the wrong of the
wife and she dies auring tae penaency
of the action it would not survive
against the husband.
No error. Judgment affirmed.
Gregory Ex'r vs. Ellis et als-Northimp-ton.
A. SHE J
This was a petition filed by the plain
tiff to sell the real estate of his, testator
for the payment of hisdebts. The jadge
of probate ordered the sale :if .' all the
lands: belonging o the estate of the tes
tator, except the land assigned, to the
wldowfoT trer dower inrtr tfiat" devised
by'tha'tdthBdahtrivwhich were
reserved to abide Uie' issues raised by
the-answer of thefendant. Upon a
case Agreed it was . adjudged by the
court "that a homestead be allotted to
defendant out of those lands of which
the testator died seized ' and possessed
that have been assigned to. heJ widow
of said testator for her dower, to be en
CHARLOTTE N. C, SATURDAY APRIL 29, 1882.
joyed subject to said dower, ft is fur
ther, adjudged thatthe plaintiff have a
license to sell all the real estate devised
to said defendant also the reversionary
interest in the lands covered by the
dower, except so much thereof, as shall
be allotted and set apart to said defend
ant as and for her homestead," &c.
The court says: If the homestead had
been laid off in the lifetime of the hus
band, at his death, the dower of the
wife would have been assigned so as to
include the dwelling house in which
the husband usually resided and build
ings used therewith. Thus dower would
be assigned so as to include the home
stead or a part thereof, and the right of
dower having attached at the time of
marriage,: would have been paramount,
and the right'of children to enjoy the
homestead daring the minority of any
one of them must bave been taken sub
ject to the paramount right ot dower.
Watts vs. Leggett 66 N. C. 197.
Where there still remains an amount
due creditors for debts contracted pridr
to the act of 1877, the fee simple estate
in all, the lands of the testator were lia
ble to the naymenifchereof, ' subjeet to
the dower an&right Of homestead as- it
existed prior to that act.
Eo error. Affirmed.
Syme administ'r vs. Broughton et als
Wake.
Ashe J.
This action was brought -Dy plaintiff
as administrator of Pepper against de
fendant as administrator with the will
annexed of W. G. Lougee.to recover the
amount due on an inland bill of ex
change drawn by the defendant's testa
tor in favor of plaintiff s intestate.Plain-
submitted to a nonsuit upon an intima
tion ot an opinion ot his Honor that the
plaintiff could not recover, for the law
authorized no action against the defen
dant for any liability of the said Lou
ee. The only question is. can the action
be maintained against the defendant as
administrator cum testamento an-
nexo.
The court savs. That sec. 25 ch. 119
Bat. Rev is in pari materia with the
llth mid Uih sections of chapter 45.
Reference may therefore be had to the
latter s ctiom? in order to ascertain the
intent of th-) Legislature in enacting
sec. 2o. sw.tion 13 expressly provides
that the collector may commence and
main'ain or detend suits and may be
sued.
When one whose offce is that of a
mere collector may be sued, it would be
unreasonable to suppose that the Legis
lature intended to divest of that attri
bute one who has been regularly vested
with the full powers of an administra
tor or executor. The proper construc
tion of section 25 is that after the pro
bate is granted iu common form and
there is an executor who ac' s, or an ad
ministrator with the will annexed ap
pointed, his office is intended to be con
tinued during a controversy about the
will, and be has ail the powers and is
subject to all the liabilities of an ad
ministrator or an executor, except tnat
hia right to dispose of the estate accord
ing to the provisions of . the will, is sus
pended until the final determination
of the suit.
There is error. Reversed.
Rogers vs. Moore Wake.
Smith C J.
The action is for goods sold and de
ivered, lodging furnished and money
Final judgment was entered for want
want or an ans wer.Deiendant appealed.
The court say, that the cases contem
plated under section 217 C. C. P. were
those in which a specific sum was con
tracted to be paid and not those implied
contracts to pay for goods sold or ser
vices rendered, what they were reason
ably worth was to be determined by
others. Referring to the practice in ac
tions of assumpsit Battle J. says, "upon
a default in that action which sounds in
damages, the judgment is necessarily
interlocutory.
The result or the decisions seem to
restore the old practice, and to refer
the inquiry of damages after an inter
locutory judgment to the jury acting
under the supervision of the judge and
not to leave it to the mere oath of the
plaintiff as to what he supposes those
damages to be.
J udgment reversed for irregularity.
Walton et als vs. Mills Burke.
Smith C. J.
This action is brought by several pro
prietors of land on an unnavigarole
stream which proceeds from an upper
tract belonging to the aetenaant, to re
strain him from a contemplated diver
sion of its waters from their proper
channel by means of canals and con
duits in process construction and which
defendant intends to use in goia wash
ing operations, to the injury of the gold
mines and mills on the plaintiff's lands
which require the uninterrupted now
of the water. At the hearing the de
fendant was enjoined from diverting
the waters of the creek and its tributa
ries or otherwise interfering yiith the
natural and regular flow thereof,
Defendant appealed.
Though a proprietor may use the
water while it runs oh his land, he can
not unreasonably detain it or give it
another direction, and he must return
it to its ordinary channel when it leaves
his land,-3 Kent, Com. 439.
When the injury to the complaining
party is uncertain and mainly conjec
tural and apprehended, it does not fol
low that the restraining po wer will be
exercised.
Where no damage has yet occurred,
and where if any shall be hereafter be
fore trial the plaintiff has the right to
make application tor a restraining order
upon actual and ascertained damages,
it is error tn the court to award an in
junction.
J udgment reversed. Jirror.
fThe court calls attention to the fact
that this new industry of gold washing
may, from necessity, require some mod
ification of the general law governing
the use of passing water.
Tillery, et al., vs. Wrenn, et al. Halifax.
Smith, C. J.:
In 1875, plaintiffs entered into a con
tract with Wrenn for the purchase of
certain lands. One-fourth to be paid
cash, three-fourths secured by three
several bonds for the same amount,
bearing interest from date, maturing
successively on the first day of January
in the years ensuing. When the notes
became due being unable to raise the
sum demanded as a condition for fur
ther indulgence. Wren offered to ex
tend the time if the plaintiffs would
assume a large insolvent debt due to
him, for which the plaintiffs were in no
manner responsible. From the press
ure of their necessities they assumed
the debt and reconveyed said lands to
defendant Dunn in trust to secure the
same. The notes falling due the trus
tee advertised and proposed to sell the
land. The plaintiffs moved an injunc
tion before the Judge, who issued a re
straining- order and set a day for the
hearing. Upon the hearing it was ad
j udged that so much of the restraining
order before granted as restrained the
defendant from selling, for the assumed
insolvent debt be continued and as to
the original indebtedness, the order be
dissolved. Defendants appealed.
The court savs : That those who maka
bargains, must ordinarily abide, by
them, for the court will not interfere
with the enforcement of contracts, be
cause of their consequences, unless the
inequality of the contracting parties is
such as to give one of them the oppor
tunity or dictating to the other his own
terms and the contract itself is so un
reasonable as to indicate that the power
was exercised in bringing about its ex
ecution. involving duress. -Without anv
proof of actual fraud, conveyances ob-
tainea Dy one wnose position gave him
power and influence over the other,
should not stand at all if entirely vol
untary, or should stand only as a secu
rity for what was actually paid or ad
vancea upon them, where there was
partial consideration. Patton vs. Eve
rett, T Ir. Eq., 152; Futrill vs. Futrill,
5Ir. Eq., 61; re-affirmed in McLeod vs.
Bullard, at this term.
The court upon an interlocutory ap
plication will not pass- upon the merits
or the controversy, but leave them to
oe determined upon the final hearing.
j.n& moainea injunction was proper.
Amrmea.
State ex rel. Board of Commissioners of
Wake vs. Magnin, et als. Wake.
Smith, C. J.:
This action is brought against Mag
nin as county treasurer and his bonds
men. When his term expired he had,
or ought to have had, of moneys re
ceived by virtue of his office for county
school purposes, an unexpended bal
ance of $2,648.38, as appears upon his
own sworn statement, for which the
present suit is prosecuted. The defen
dant Bunting alone demurred to the
complaint:
1. For that the relators are not proper
parties and the action can only be main-
tainea Dy, ana on the relation of the
successor in office to whom the sum is
due.
2. For that no sufficient demand was
made before bringing the action.
3. For that the default set out is not
covered and protected by the Condition
in the bond.
His Honor sustained the demurrer
and adjudgtd that Bunting go without
day and recover his costs.
From this ruling the relators appeal.
The court says :
1st. That the exception to the form
of the action was settled and disposed
of in the action between the same par
ties reported in 78 X. C, 181.
2d, A demand before suit is not ne
cessary where a public officer collects
and retains money which he ought to
pay over. State vs. Mcintosh, 9 Ired.,
307; State vs. Woodside, lb. 496; Little
vs. Richardson, 6 Jones, 305. But iu the
present case there was a demand.
3d. The county treasurer becomes ex
fficio treasurer of the county board of
euueation Hat. Rev., ch. 68, sec. 32. In
sections 34 and 35 are the principal spe
cial proyisions relating to the functions
and duties pertaining to the office. The
disbursements mentioned in section 35
have reference to the administration of
the fund, and contemplate a settlement
of the treasurer's account.
The only obligation imposed in ex
press words is to "disburse, all
public school fands." If this includes
the official duty of a final settlement
with his successor, the similar language
employed in the condition of the bond
must have an equal import and be con
strued to cover the alleged defalcation.
The purpose of the act of March 28,
1870, which is but a re-enactment of the
act of 1842, is to cure certain defects and
irregularities in conferring the office
and accepting the instrument, and to
maintain its solidity as an official un
dertaking, as far as it goes, notwith
standing the penalty or condition may
vary from those prescribed by law.
The safe keeping, disbursement and
delivery over of the funds are the duties
enjoined, and this was the manifest
purpose of the bond and the common
understanding of its import when en
tered into.
The judgment is reversed. Demur
rer overruled.
Wilson et al. vs. Powell et al. Catawba
Smith, C. J. :
Mahala Shemll ma. le her will in Junf ,
1863, and died during that summer. In
the second clause a legaey of one thou
sand dollars is bequeathed to her neice
Jfciiizabetb, together with several other
bequests in money, &c. During that
year and the year following payments
were made on the legacy. .His Honor
ruled that the legislative scale should
apply to the Confederate money re
ceived to the discharge of the legacy,
and not to the legacy itself. The appeal
is from this ruling.
Held: That the application of the
scale must be made to both the legacy
and the successive subsequent pay
ments, each according to its date.
The rule in the construction of pecu
niary legacies seems to be that the leg
acy is to he paid in the currency which
is in universal use at the time it is
made.
A reasonable method of interpretation
to give money legace3 whileConfederate
money was the only currency in use
and was Teceived in discharge of ante
bellum debts is to consider them paya
ble in the value of such currency, of
which the legislative scale is the meas
ure. Dealings between trustee and
cestui que tiiist stand upon different
grounds from those between debtor and
creditor.
Overruled for error.
A DISORDERED LIVER
IS THE BANE
cf the present generation. It is for the
Cure of this disease and its attendants,
SICK-HEADACHE, BIIJOUSllESa, DYS
PEPSIA, CONgTEP ATION PPTLE8, etc., that
TXTTT'S PTT-T-S have gained a world-wide
reputation. Ho Bemedy has ever been
discovered that aota so gently on the
digestive organs, giving them vigor to as
similate food. As ft natural restilt, the
Mervons System is Braced, the- Muscles
are Developed, and the Body Robust.
Glxtllm and
B. RIVAL, Plantar at Bayou ssravx says :
Sir plantation Is in a malarial district. Per
several Tears I could not make half a orop on
oeount of bilious diss ass and chill. I was
nearly discouraged when Z bsgaa tfa use of
TUTS'8 PILLS. - Tfce result: was marvelous:
my labor soon bseaxna hearty and roBust,
audi have badao further teouMe. .
ThyrlteTeflMeB)twge4Uvw,rieiutM
the Blood from poisonous humors, nasi
ommo tfco bowels to a mjUurmlly, Wltb
eat wuea mmn cojb net weu
. Trytnis
looaitn;
Blood.SH
rrieswW
Gay Hatr or Wmmna ch&nsM to saooesx
kCM oy a aWKM sppueauon ot uns www. u
bv Drumrista, ox seat by express no reosipt
i a uasuimi mm, umMUBwiiMi
Of One Dollar." . . ; .r...,'.tL'
Offloe, 88 Murray Street, Ne-wrTpnu
(Dr. VOTE" WLAMVAU mf TMtmM
AtormaMoM smms t7soWf gsosW
POLLS
c C3
T IHfWUOa, V unw now. rum
troM Korroau sas a lnii IItct.
DnN.efflN.UHnnrmB.T.
NO. 4,087.
TO THE
-:H:
ffitt4
DOTTED
In luM.ooe WK,n at 20c to 50c. A large stock ot NICK WB1R, Cretonnes and FHnjes tor same.
Ask to see Oar "HOLMESVILLE" NIGHT-GOWN GOODS.
BEFORE PURCHASHING.
Hargraves &TVillielm.
AGENTS FOR "UNIVERSAL" FASHIONS.
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OH! YE 0
v
1 u
MA SON &
SHOIMINGER
PELOVBET 4
Eight of the Leading Makers
OF THE WORLD.
One Hundred Instruments in
PLENTY OF MONEY ON OUB LEFT,
PLENTY TO EAT ON OUR RIGHT,
AND A SOLID MUSICAL CENTRE.
We Don't Pt Ten Dollar
OF OUR
Neither do We Throw in a
'''WSJfiBwJCf.;..
But
H. IVTcSIVllTH, Charlotte, N. C.
hi
n
n
m
L. 'BEBWANGfiR & DBO.
NEW ST0CK;! NEW STYLES! LATEST CUTS!
COME!
FOR our stock la now complete. We call especial attention to (be -GABMKNTS M NUFACTUBED
IN OUB OWN HOUSK. We are lustlfied In assM-timr. and -mt mawmtt,.- that ih imrn.
rlenee and standing of our Hous, Is a full guarantee that fTTTF TT OT'TTTlvn
IS THE MOST RELIABLE SOLD In this Market. We make nn nrkHtrmnt n,i
study the demands oi our patroDs, and insure them
lots In order to Introduce Low Priced Goods, but
made Ud In such a style as la worn In faHhincn.hi
selecting our stock by coing early in the Market, ot which privilege the' Late Purchaser la debarred.
&JPtS3S!SSSX m CMdr0.a:-;C,t,lta U as flne as
HATS, ALL
GEM SVFUBNISBIfflG G0DD,
THE FINEST IN THE CITY.
THE YORKTOWN SCARF,
The Latest Out, In the Y,ery Lstert ShuWln Sllka.
ar" C-A.IiL -A.3Sri SBJiE3 TTS. VeryBespeetfuUy, '
L. Berwanger & Bro
IV. B. Garment 9a4e (o Order on
$00 ttua Sot Anting.
lit 0B8XBTXK JOB DXPABTMZNT
Hai beenhoroughly auprnefl tth'miy needed
want, and with toe latest stylei of Type, and even
manner ot Jofc Mating, eaa now t4one wttn
neatneea, dtopetofc and ebeepnen. We can fur
niab at snort ooqofti r
BLANKS, BILL-HEADS,
LErTXa-HEADS, CAKD6,
TAGS, RECEIPTS, POSTERS,
PjaOeBAMlIES, HANDBILL8,
PAMPHLETS. CIBCrjIiAB3i CHECKS, &e.
&-:W:
?!?n WTO to see our Dres, Good.
We have
lave
SWISS'--
FA'
m
LIU
JL JLJLA JL XX
Front Forward to the hrar.
DOUULE-QUICK!
McSmiih Music House,
-THS-
Ll rlbutlng Depot for the Carolina
-FOB-
CUICKERING,
KRANICH de RtCD,
MATHI SHEK
-AMD
Southern Gem Pianos.
HAMLI N
BELL CHIME,
CO. OKGAm
Gold Pieces on Every Stop
ORGANS,
House lot or a Railroad,
We Beat That all to Pieces,
LADIES
stock. w3 ill "1
tS CALL AND 8KB ME. g
Will Guarantee 10 per cent on all Moneys Invested.
t3T" For Parslculars call on or write to
SPRl
888889 32&n
absolute BOTTOM PBICES. We do not buy lob
invariably offer the public such CLOTHING and
HrftP fniflhrttiem iitfui w h,H ih. ohniM nf
COLORS.
Short Notice.
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