The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-03-25

aldermen, does not imply that such ordi-
nance shall be passed in conjunction
with the board of health.
The condition of ones health NAV he
a sufficient excuse for failing to comply
with an ordinance requiring compulsorv
vaccination, but the fact that the ordi-
nance does not make provision for such
cases, does not invalidate the ordinance
and it is not a sufficient defence for its
violation that one has q bona fide belief
that it would be dangerous for him to
be vaccinated or that he believes he has
been sufficiently vaccinated, but the opin-
ion of the official physician supervising
the vaccination that one has been suffi-
GENTLY vaccinated, would be presumptive-
~ correct That which would relieve
from a compliance with the ordinance
is a matter of defence, the burden of
which is upon the defendant, and is a fact
to be found by the jury.
McLAMB EFT AL VS.. McPHAIL EFT AL.
Error.
The verification of an answer that 'The
foregoing answer of the defendant is
true of his own knowledge, except those
matters stated on information and be-
lief and he believes these to be true" is
a substantial compliance with Section
25S of The Code. Cole VS.. Boyd, 125 N.
c. 496 Payne VS.. Boyd. Ibid 499; Phifer
VS.. ms. Co., 123 N. c. 41O.
Plaintiffs sue for recovery of real es-
tate as the heirs at law of Felix Flem-
ing, who conveyed the land to his wife
Alley in 1871 but without using the
words her heirs" in the deed. Alley mar
ried one Tew after the death of her
husband Fleming, and the complaint al
leges that the defendants are holding
under mesne conveyances from Alley
who died in 1859. Among other defence
the defendants alleged that the deed
from Felix Fleming to Alley Fleming,
was intended by the parties thereto to
convey a fee simple, that the words
her heirs were omitted by mutual
mistake and inadvertence, and ask for a
correction and reformation of the deed
SO as to make it convey a fee simple.
The plaintiffs failed to reply to the al
legation Of grounds for a decree for
reformation of the deed and the judge,
gave judgment by default. Plaintiffs
contend that this was error as the al
legation of grounds for correction of the,
deed was not a counter claim because
the defendants could not have maintained
an independent action therfor; Held
that by virtue of Chapter of the Acts of
1898, the defendants though in possession,
could have brought an action to remove.
a cloud upon their title, and the allie
cation of grounds for correction is there
fore a valid eounter~claim and not mere
matter of defence The judgment by de-
fault was erroneous however, for the
reason that under the law in 1871 govern
ing the property rights of married wo-
men, the conveyance from Felix Fleming
to his wife Alley if it had been executed
as a fee simple deed would have been
void at law, and sustainable in equity
only upon meritorious consideration, and
the answer contains no averment OF
meritorious consideration. Taking the an
swer in this respect to be true, because
undenied by reply, it did not authorize
the judgment rendered by default for
correction of the deed.
A defendant ma plead inconsistent de-
fences if separately stated. Clark's Code
(3rd editiou) Section 245.