that the possession of one holding under a bond for titles to land is not adverse to the obligor of the bond, or the representatives upon his estate, in the sense that such possession may be the foundation of a prescription as against such obligor or his estate. Hines v. Rutherford, 67 Ga. 606; Allen v. Napier, 75 Ga. 275; Hawkins v. Dearing, 93 Ga. 108, 19 S. E. 717. Indeed, a vendee under a bond or contract for conveyance, though placed in possession by the vendor, does not hold adversely to the latter. By the very fact of taking under a bond or contract for a deed to be thereafter executed by the vendor, a purchaser recognizes the title of his vendor, and acknowledges himself as holding in subordination, and not in antagonism, to it. 1 Warv. Vend. 201. It must be understood, however, that the obligor or his personal representative is not at liberty to treat the obligee as holding in subordination to the title of the obligor for all purposes, The doctrine is well settled, and has been announced in strong terms by the federal courts, that, while the vendor without deed is a trustee of the vendee for the conveyance of the title, and the vendee in turn a trustee for the payment of the purchase money, yet that the vendee is in no sense a trustee of the vendor as to the possession of the property sold; that the vendee claims and holds it in his own right, for his own benefit, subject to no right of the vendor save the terms which the contract imposes; and that his possession is, therefore, adverse as to the property, but friendly as to the performance of the conditions of the purchase. Id. 202; Hobart v. Drogan, 10 Pet. 108. We are clearly of the opinion, therefore, that while the obligee in the bond from Swift and Lamar had, as to the latter, no such adverse possession of the premises as would enable him to acquire a prescriptive title thereunder, yet such possession was, within the meaning of our statute, adverse in the sense that a sale of any portion of the property by the administrator upon the estate of one of the obligors, pending such possession, and without first having recovered the possession as required by the statute, was void. It follows, therefore, so far as this record shows, that the legal title to an undivided half interest in the premises in dispute still remains in the estate of C. T. Swift, the administrator's deed to Mrs. Lena B. Swift being void, and consequently ineffectual to pass the title out of said estate. It being incumbent upon the plaintiff to recover upon the strength of his own title, and he having failed to exhibit title covering the undivided interest in the property belonging to the estate of C. T. Swift, the court erred in directing a verdict for the plaintiff covering the entire premises.

4. In addition to the questions above considered, the motion for new trial contains several assignments of error upon rulings made in the court below; but, in so far as these assignments of error are properly pre

Under Code, § 926, authorizing the sheriff to adjourn a regular term to the next regular term if the judge be absent, a recognizance to appear at a term which is so adjourned is not discharged by an appearance thereat, but defendant is bound to appear at the next regular term, or at an intervening special term, under section 919, requiring persons summoned to appear at a regular term to appear at an intervening special term.

Appeal from superior court, Pasquotank county; Norwood, Judge.

Scire facias by the state against John Horton and others on a recognizance. There was a judgment for defendants, and plaintiff appeals. Error.

The Attorney General, for the State. G. W. Ward, for appellees.

CLARK, J. The defendant gave recognizance for his appearance "at the next term of the superior court, on the 3d Monday in September." At that term, the judge, being ill, did not appear, and the court was "adjourned until next term." Code, § 926. It would be a grave miscarriage of justice if on such facts all recognizances are discharged when no officer is present authorized to take renewals. In Askew v. Stevenson, 61 N. C. 288, it was held that the cause was continued "certainly for one term," and probably "from term to term, until the attendance of a judge to hold the court," by virtue of Rev. Code, c. 31, § 24. That section was brought forward in the Code (section 919), with the words stricken out which formerly restricted its application to civil cases. Certainly this section applies in the present case, as a special term was held in January following, of which "due notice was given by publication in the newspapers and otherwise"; and section 919 provides that all persons "bound to attend the next regular term of the court shall attend at the special term, under the same rules," etc. The recognizance to appear at the September term was not to "depart the same without leave." There being no judge present, no leave was given beyond the adjournment, "till next term." The Code (section 926), by operation of law, carried all matters over to "the next regular term" in the same plight and condition (Walker v. State, 6 Ala. 350), and this was transferred to the intervening special term by virtue of Code, 919. No hardship can accrue from any bona fide mistake in such matters, as the judge has discretion to remit or lessen for. feitures in all cases (Code, § 1205), but in re

fusing judgment on the scire facias there was error. State v. Houston, 74 N. C. 174, has no application, for there, after the bond was given, a new regular term was established by law, to be held before the term at which the defendant was bound over to appear. Error.

(123 N. C. 710)

STATE v. WOODARD.

(Supreme Court of North Carolina. Oct. 10, 1898.)

FISH PUBLIC WATERS-NETS CONSTITUTIONAL

LAW-CRIMINAL LAW-VENUE,

1. Acts 1897, c. 51, prohibiting fishing with gill nets more than 20 yards long in Albemarle sound, is not unconstitutional, as interfering with the natural right of a citizen of North Carolina to fish in the navigable waters of the state.

2. Said act is violated by fishing with a gill net exceeding that length, but cut in sections of 20 yards each, and tied together, with 6 inches of space between the different sections.

3. The objection that a prosecution is not brought in the proper county must be taken by plea in abatement.

Appeal from superior court, Bertie county; Brown, Judge.

J. A. Woodard was convicted of fishing in Albermarle Sound with a gill net exceeding 20 yards in length, and he appeals. Affirmed.

W. M. Bond, for appellant. Francis D. Winston, R. B. Peebles, and the Attorney General, for the State.

FURCHES, J. This is an indictment under chapter 51 of the Acts of 1897, for unlawfully fishing in the waters of Albermarle Sound. The statute is singularly drawn, and its policy is not apparent to us. It is contended on behalf of the state that its object is to protect its citizens from the depredation of persons from other states, while it is contended by the defendant that its object is to destroy the small fisheries in the interest of the large beach seine fisheries. And it seems rather singular that a gill net 80 yards long is permitted to be used in Roanoke river, onefourth of a mile wide, while one not more than 20 yards long is allowed to be used in Albemarle Sound, which is from 6 to 12 miles wide. But we have nothing to do with these matters of policy further than they may assist us in putting a proper construction upon the act of the legislature under which the defendant is indicted; and, as neither the evil to be remedied nor the benefit to be attained by this statute is apparent, we are furnished no aid from this source.

The defendant contends that this act is unconstitutional, as it interferes with the natural right of a citizen of the state to fish in its navigable waters. But this question seems to have been decided against the contention of the defendant. Rae v. Hampton, 101 N. C. 51, 7 S. E. 649.

The defendant also objects to the venue, in Bertie, and says that it should have been in

Chowan, county. But this is a matter under the control of the legislature, and, upon an examination of the act, it is found that Bertie is included in the counties where the indictment may be had. Besides, if there was ground for this objection it should have been taken by plea in abatement.

This brings us down to the question as to whether the matters found in the special verdict were a criminal violation of the act under which the defendant is indicted, and we are of the opinion that they were; that under this act he could only fish with nets 20 yards long. The defendant, for some reason, and, we must suppose, for the purpose of evading the penalty of this act, cut his nets up into sections of 20 yards in length, then tied a half dozen of them together, leaving only 6 inches between them, and put them out. This, to our minds, was rather a stupid device to evade the penalty of the statute. It is like the case where the defendant, to evade the penalty of the law for retailing liquor by the small measure, would sell his customer a cob for a dime, and then give him a drink for buying one of his cobs. The court said this would not do. Another liquor dealer would leave a bottle of liquor on a table, with a slot in the table, where his customers would find it, trusting to their honor to drop a nickle in the slot every time they took a drink. But the court said this would not do; that these were efforts to evade the law by means of these stupid devices, which the law would not allow. And so it was with the defendant in this case. Such attempts to evade the law cannot be allowed to succeed. The judgment is affirmed.

STATUTES-IMPLIED REPEAL-REVIVAL.

Acts 1885, c. 106, making it a misdemeanor to allow stock to run at large in the county of Edgecombe, was not repealed by Acts 1897, c. 301, which amended the former act by adding after the word "Edgecombe" the words "between March the 1st and December the 31st." Hence Code, § 2799, requiring a planter to keep a fence about his farm, which was repealed by the act of 1885 as to Edgecombe county, is not in force there, as having been revived by the act of 1897.

Appeal from superior court, Edgecombe county; Brown, Judge.

Thomas Anderson was found guilty in the circuit court on a special verdict on an indictment charging him with not having a fence about his premises, and he appealed to the circuit court, which reversed the judgment of conviction, from which judgment the state appeals. Affirmed.

The indictment is as follows, viz.: "The jurors for the state," etc., "present that Thomas Anderson," etc., "on the 20th day of January, 1898, with force and arms," etc., “un

lawfully did take up and impound a certain hog, running at large, the property of one J. M. Pittman, the said hog being allowed to run at large in the county aforesaid between December 31st and March 1st of each year, against form of the statute," etc. "And the jurors aforesaid," etc., "do further present that the said Anderson, on the day and year aforesaid, with force and arms," etc., "did unlawfully and willfully fail, omit, and neglect to have and make a sufficient fence about the cleared ground of him, the said Thomas Anderson, under cultivation, at least five feet high, there being no navigable stream and no deep water course instead of such fence, and there being at the time aforesaid no stock law in force within the limits of said county of Edgecombe within which said land is situated, against the form of the statute," etc. "And thereupon the following jurors [naming them] being chosen," etc., "upon their oath say that the defendant owned and was in the possession of a farm situated in said county of Edgecombe, whereon he cultivated and grew various crops during the year 1897; that he had winter crops growing thereon at the time of the commission of the misdemeanor wherewith he is charged; that said farm is situated within the stock-law territory of said county, and has been so situated since March, 1885; that during the month of January, 1898, one J. M. Pittman owned a certain hog, which he permitted to run at large within said territory; that said hog came upon the farm of the defendant, and did damage in the cultivated fields of the defendant, and that while said hog was so at large upon the farm of the defendant, doing damage, the said defendant took up said hog, and impounded same, during the month of January, as aforesaid; that while said hog was impounded the defendant fed same; that the defendant refused to surrender the hog to Pittman, the owner, until defendant had been paid for the damage done by said hog, and the food furnished to it by the defendant; that there is no fence of any kind inclosing the farm of said defendant and his cultivated fields, nor has there been any inclosure since 1885; that defendant does not permit his stock to run at large; that defendant impounded said hog because he thought he had a right so to do. But whether defendant be guilty of the misdemeanor as charged in said indictment against him, the jurors are altogether ignorant, and pray the advice of the court thereupon. And if, upon the whole matter," etc., "it shall appear to the court that he is guilty in law, then they find him guilty. If upon the whole matter it shall appear to the court that he is not guilty," etc., "then the jurors find

that the defendant is not guilty." "Upon considering the foregoing the court is of opinion that the defendant is guilty, and directs that a verdict of guilty be entered, and that defendant be fined one penny and costs." The defendant appealed to the superior court.

The judgment of the superior court was as follows, viz.: "This cause coming on to be heard upon appeal from the judgment of the circuit court, the court is of opinion that the act of 1885 (chapter 106) by implication repealed section 2799 of the Code, relating to fences, as to Edgecombe county; that the amendment of March 8, 1897 (chapter 301), does not have the effect to re-enact that sec tion; that Edgecombe county, being in stocklaw territory generally by virtue of act 1885 (chapter 106), the said section of the Code does not apply to it; that no indictable offense is stated in the bill, being an offense when committed in said county; that upon the special verdict the defendant is not guilty. Judgment of circuit court reversed. Let the proceedings be quashed, and defendant go without day," etc. "[Signed] Brown, J." From the foregoing the state appealed to the supreme court.

A. B. Andrews, Jr., and The Attorney General, for the State. John L. Bridgers, for appellee.

FAIRCLOTH, C. J. The act of 1885 (chapter 106) makes it a misdemeanor for any person to permit his or her live stock to run at large in the county of Edgecombe, and the act of 1897 (chapter 301) amends the said act of 1885 by adding after the word "Edgecombe" the words "between March the 1st and December the 31st." The first act, called the "Stock Law Act," relieved every planter from keeping a lawful fence around his farm, as required by the Code (section 2799). The defendant is indicted for failing to have such fence around his farm on the 20th of January, 1898. The case hinges upon the effect of the amending act of 1897 (chapter 301). The contention of the state is that the amendment repealed the act of 1885 and put the Code (section 2799) in operation, on the principle that the repeal of the statute, repealing a former statute, leaves the latter in force. We cannot adopt that view in this The amending act does not profess to or in effect repeal the first statute. We think the amendment must be taken as if it had been inserted in the original act, uncovering or excepting the period from December 31st to March 1st. In England the common law did not permit stock to run at large. In this country the conditions were so different, owing to the vast forests, and the small number of acres under cultivation, that the rule was practically changed, and by common consent the custom obtained of allowing stock to run at large. It was rather the necessity of the situation than a rule of law, and this custom still continues, when not changed by statute. Our court has frequently recognized this custom in the various instances in which the question arose in different forms. Laws v. Railroad Co., 52 N. C. 468; Morrison v. Cornelius, 63 N. C. 351; Burgwyn v. Whitfield, 81 N. C. 263. Our conclusion therefore

case.

is that the judgment of the superior court upon the special verdict was not erroneous. Affirmed.

(123 N. C. 697)

STATE v. GODWIN et al.

(Supreme Court of North Carolina. Oct. 10, 1898.)

TAXATION EQUATION BETWEEN POLL AND PROPERTY TAXES-STATUTES-PARTIAL INVALIDITY

OFFICERS-CRIMINAL LIABILITY-CONSTITUTIONAL LAW.

1. Pub. Laws 1897, c. 514, providing for the working of roads in Hertford county, and levying a tax for that purpose on property therein, fails to observe the constitutional equation between the tax on the poll and the tax on property.

2. Where the enforcement of an act depends entirely on a tax provided by one section of it, and that section is void because of the illegality of the tax, the entire act falls. Laws 1897, c. 514.

Pub.

3. Where a law which enjoins performance of a duty on a public officer, and makes its neglect criminal, is attempted to be repealed by a statute which is unconstitutional, and the officer, believing in good faith that the repealing act is constitutional, neglects performance of such duty, he is not criminally liable. Appeal from superior court, Hertford county; Norwood, Judge.

H. D. Godwin and others were indicted for refusal to perform an official duty, and found not guilty, and the solicitor for the state appeals. Affirmed.

The jury returned a special verdict, as follows: "We find that on the 7th day of March, 1897, the general assembly passed an act to provide for working the roads of Hertford county, as the same appears in chapter 514 of the Public Laws of North Carolina (Sess. 1897), and which said act is made a part of this finding. That on the first Monday in June, 1897, the county commissioners of Hertford county met in regular session, and, after consultation with counsel and upon advice, they decided that the said act was inoperative and void and unconstitutional, because the act did not observe the constitutional equation of taxation; and at the said meeting the county commissioners refused and declined to levy said road tax, or to elect the officers named in the act, or in any way to put in operation the provision of the said act; and this official decision and conduct of the said commissioners was known to each of the defendants named in the bill of indictment in this cause. That the commissioners at said meeting levled the full constitutional limit of taxation for the ordinary and necessary expenses of Hertford county, and this was known to the defendants. That on the 1st day of June, 1897, and since that time, they have all been acting justices of the peace in St. John's township, in Hertford county. That on the first Thursday in August, 1897, the said defendants, after taking the advice of counsel, and being of opinion that the provisions of the general law relating to public roads in Hert

ford county had been repealed by said act, and that the said act was in force, declired and refused to hold the meeting required by sections 2015 and 2016 of the Code, and also made no report to this court at the fall term of the condition of the roads in said township. That the failure of the said defendants to hold said meeting and to make the said report was owing to the fact that they were advised and believed that their duties in regard to the public roads of Hertford county had been taken from them by the said act, and vested in the officers named in said act; and, being ignorant of the law, the jury say that if, upon the facts as above stated, the court is of opinion that under the law these defendants are guilty, the jury find them all guilty as charged; and if the court is of opinion that under the law the defendants are not guilty, then the jury find that all the defendants are not guilty." The judgment of the court was that the defendants were not guilty. The solicitor for the state appealed.

B. B. Winborne and the Attorney General, for the State. Francis D. Winston, for appellees.

MONTGOMERY, J. The defendants were justices of the peace, and by virtue of their office (Code, § 2014) were a board of supervisors, and were required to look after the public roads in their townships. They were required also (Id. § 2015) to hold stated meetings for the purpose of consulting on the condition of the roads, and, by section 2024 of the Code, to make to the superior court, at term time, an annual report of the condition of the roads. The general assembly of 1897, in chapter 514, undertook to repeal the provisions of the Code, above referred to, as to Hertford county, and to impose upon others the duties required of the defendants. The defendants, after the enactment of the act of 1897, failed and refused to discharge the duties enjoined upon them under the provisions of the former law (the Code), and they were indicted on account of such failure and refusal. The act of 1897, in its entirety, is contrary to the provisions of our state constitution, and is therefore void. In the act a tax for making, repairing, and keeping up the public roads of Hertford county, a necessary county expense, was authorized to be levied upon property solely. The constitutional equation between the tax on the poll and that on property was not observed. It was contended here by the counsel of defendants that a part of the act was in conformity with the constitution, and that such part should be upheld; but, upon a careful reading of each of its provisions, it is manifest that they are all interdependent. The county commissioners had refused from the beginning to act under the law of 1897, and hence the question of the appointment of the officers prescribed by that act, in place of the defendants, and the consequent effect of such appointment, does not arise. The

whole act appears on its face to be one common plan for working the public roads of Hertford county, and the enforcement of its provisions depends entirely upon the tax provided for in the first section, and, that section being void because it disregards the equation of taxation between property and the poll, the whole act fails.

The question for decision, then, is, is one who is a public officer under a former provision of law compelled, under pain of indictment and punishment, to perform the duties of the office during the time when there was on the statute books a subsequent act unconstitutional in all of its provisions? The matter is an important one, both to the public and to the individual. With us, public office is a public trust, and public officers are merely the agents of the people. This fundamental principle of republican government may not always be recognized by the officer, but it is nevertheless the true theory. When the people, through their representatives, create a public office, and prescribe the duties of the officer, the people act for the common good, and the incumbent of the office is the mere Instrument used for the general welfare. His gain or profit is not in contemplation of the lawmakers. The public interest is the chief consideration. What an anomalous state of things would we have, then, if a person believing himself to be a public officer, because of the discharge of the duties which he thought he owed to the public, should afterwards be indicted and punished because the courts had held the act which created the office and prescribed its duties to be against the provisions of the constitution and void! Such a proposition would be equivalent to declaring that the individual officeholder must be wiser than the whole people, represented in their general assembly. Such a proposition, to us, seems opposed to every idea of justice. It could not be true. The criminal law cannot be invoked to punish one who acts as a public officer, as an agent of the people,and who in the discharge of a public duty had obeyed an act of the lawmaking power, even though the law be unconstitutional, unless the act itself had required the committal of a crime,-a thought which could not be entertained for a moment. And it makes no difference that in the case before the court the defendants are indicted for a refusal to perform certain duties under a former law attempted to be repealed by a subsequent unconstitutional statute, and not for doing positive acts under an unconstitutional law. The principle is the same in both cases. The defendants here cannot be punished under the criminal law for failing and refusing to perform the duties of an office, which office, and the duties pertaining to it, had been sought to be repealed by a subsequent act of the legislature, afterwards declared by the courts to be unconstitutional. Until the subsequent statute was declared to be unconstitutional by competent authority, the defendants, under

every idea of justice and under our theory of government, had a right to presume that the lawmaking power had acted within the bounds of the constitution, and their highest duty was to obey.

It is not necessary, to a proper determination of this case, to go into the realm of the effect of contracts, executed or executory, made by a person claiming to be a public officer, but where there is no lawfully created office. The counsel for the prosecution cited to the court, in support of his position, the case of Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, and especially to that portion of the opinion wherein it was declared by the court that "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never passed." The opinion in that case was rendered upon the effect of an executory contract made by one who claimed to be a public officer, the office having been created without authority of law. For the reasons given in this opinion, the case of Norton v. Shelby Co., supra, does not apply to the facts in this case. Upon the special verdict the judgment of the court below was that the defendants were not guilty, and the judgment is affirmed. Affirmed.

(53 S. C. 198)

RIDDLE v. REESE. (Supreme Court of South Carolina. Sept. 28, 1898.)

COURTS-JURISDICTION-RESIDENCE.

1. Act Feb. 25, 1897 (22 St. at Large, p. 588), establishing C. county, and declaring that "all suits pending in * # counties, in which the defendants reside in the portions of said counties now established as the county of C., shall be transferred to the calendars of the courts of the county of C.," and declaring that the act shall take effect "from and after its passage, deprives a court of one of the old counties of jurisdiction of such an action, though the defendant consents to trial by it.

2. Change of residence so as to affect jurisdic tion is not shown by the mere fact of defendant's arrest, imprisonment, and escape.

Appeal from common pleas circuit court of York county; O. W. Buchanan, Judge.

Action by James H. Riddle, administrator of Charles T. Williams, deceased, against Marion R. Reese. Judgment for plaintiff. Defendant appeals. Reversed.

Hart & Hart and Thos. F. McDow, for appellant. Finley & Brice and Wm. B. Mc Caw, for respondent.

McIVER, C. J. This action was brought by plaintiff, as administrator of Charles T. Williams, suing for the benefit of the wife and child of his intestate, to recover damages, from the defendant, proportioned to the injury resulting from the death of his intestate, alleged to have been caused by the wrongful act of the defendant. The action was commenced on the 6th of March, 1896, and