Volume 131 — North Carolina Reports

ActioN by J. O. Meekins, administrator of John Jones, against the Norfolk and Southern Railroad Company, heard by Judge George A. Jones, at Sipring Term, 1902, of the Superior Court of Tybbeli, County. From a refusal to dismiss the action, the defendant appealed.

<p>Actio.N by J. M. Goodyear against Chas-. A. Cook, beard by Judge Francis D. Winston, at September Term, 1901, of (be Superior Court of Warren County. From a judgment for the plaintiff, the defendant-appealed.</p>

ActioN by T. B. Wolfe and) others against.W. H. Hampton, beard by Judge H. B. Starbuch and a jury, at December (Special) Term, 1901, of tbe Superior Court of Washington County. Erran a judgment for tbe defendant, tbe plaintiff appealed.

ActioN by the Alleghany Company against the East Coast Lumber Company and others,, heard by Judge George H. Brown, at Chambers, at Washington, N. C., January 28, 190Á. From an order continuing a preliminary injunction restraining the cutting of timber, the defendants, appealed.

Actioht by E. IT. Taylor against A. Brinkley and others, heard by Judge George H. Brown, at April Term, 1902, of the Superior Court of Halifax County. From a judgment for the defendants, the plaintiff appealed.

Actiow by J. T. Phelps and wife against the Windsor Steamboat Company, heard by Judge George II. Brown, at Spring Term, 1902, oí the Superior Court of Rertie County. From a judgment dismissing the action as to defendant Elizabeth Branning, administratrix, the plaintiff appealed.-

ACTION by J. 0. Garter and others against L. R. White and others, heard by Judge George A. Jones, at March Term, 1902, of the Superior C'ourt of Cotkrituck County. Erom judgment for the plaintiffs, the defendants' appealed.

<p>'ActioN by Walker & Myers against D. 0. Brinkley and others, heard by Judge E. B. Starbuck and a jury, at December (Special) Term, 1901, of the Superior Court of Washington County. Erom a judgment for the plaintiffs, the defendants appealed.</p>

AotioN by Charles Monds against the Elizabeth City Lumber Company, heard by Judge George A. Jones and a jury, at Spring Team, 1902, of the Superior Gouirt of Chowan County.

AotioN by E. L. Parker against J. E. Cobb, administrator, and others, heard by Judge Henry B. Bryan and a jury, at Spring Term, 1902, of the Superior Court of Edgecombe County. Prom a judgment dismissing the action, the plaintiff appealed.

ActioN by F. B. Bullock and others against W. O. Bullock and others, beard by Judge Henry B. Bryan and a jury, at March Term, 1902, of the Superior Court of Edgecombe County. Erom a judgment for the defendants, the plaintiffs appealed.

ActioN by Erancis Duffy against E. H. & J. A. Meadows Company, heard by Judge Francis D. Winston, at May Term, 1902, of the Superior Court of Craven County. From a refusal of judgment on complaint and answer and an injunction, the plaintiff appealed.

ActioN by B. E. Smith against R. H. Garris, heard by Judge Francis D. Winston and a jury, at April Term, 1902, of the Superior Court of Pitt County. Erom a judgment for the plaintiff, the defendant appealed.

ActioN by A. T. Lai Vallette and others against A. Booth & Company, beard by Judge Francis D. Winston and a jury, at Spring Term, 1902, of the Superior Court of Caeteeet County. From judgment for the plaintiffs, the defendant appealed.

<p>ActioN by W. H. Harrington and others against M. 0. Eawls and others, heard by Judge Francis D. Winston, at October Term, 1901, of the Superior Court of Pitt County. Erom a judgment dissolving the restraining order, the plaintiffs appealed.</p>

AotioN by C. W. Swift and others against R. D. S. Dixon and others, heard by Judge Frederick Moore, at November (Special) Term, 1900, of the Superior Court of GeebNe County. From a judgment for the defendants, the plaintiffs appealed.

<p>1. APPEAL — Verdict—Setting Aside.</p> <p>Wliere a verdict is set aside as a matter of law, as here, because the judge held that he had, erroneously refused a prayer asked by the losing party, an appeal lies.</p> <p>2. MECHANIC’S LIEN — The Code, See. 1801 — Sub-contractor— Gon-tractor.</p> <p>The owner of property is not responsible to a sub-contractor for a debt of the contractor, if he owes the contractor nothing at the time he receives notice of claim of sub-contractor.</p>

<p>NEGLIGENCE — Logs and Logging — Railroads.</p> <p>There is not sufficient evidence in this case to be submitted to tbe jury on the question of the negligence of the railroad in breaking a raft of logs which had lodged against its bridge.</p>

<p>1. SUMMONS — Service—Foreign Corporation — The Code, Sec. 2/7, Subsec. 1.</p> <p>Service of summons on tbe president of a foreign corporation is valid, if made within tbe state, whether the president is in the state on private or official business.</p> <p>2. APPEAL — Premature—Summons.</p> <p>An appeal from an order refusing to dismiss an action for lack of valid service of summons, is premature.</p> <p>Cook, J., dissenting.</p>

Action by Garrett-Williams Company against F. A. Hamill and others, heard by Judge Francis D. Winston and a jury, at November Term, 1901, of the Superior Court of Halifax County. From a judgment for the plaintiff, the defendant Ada ITamill, as administratrix of the estate of T. L. Hamill, deceased, appealed.

AotioN by S. B. Ayers and others against M. Makely, heard by Judge George A. Jones, at Fall Term, 1901, of the Superior Court of Beaufokt County.

ActioN by W. C. Dawson against W. M. Baxter and others, beard by Judge George A. Jones, at May Term, 1902, of tbe Superior Court of Pasquotaíte County. Erom a judgment sustaining a demurrer to- the complaint, tbe plaintiff appealed.

Actios by W. E. Best against tlie British and American Mortgage Company, beard by Judge 0. H. Allen, at September .(Special) Term, 1901, of the Superior Court of GueeNe County. Eroni an order refusing judgment on complaint, the plaintiff appealed.

ActioN by Laura A. White against John Lokey and others, heard by Judge Francis D. Winston, at February Term, 1902, of the Superior Court of Chaven County. From a refusal of motion of plaintiff for a default judgment, and an order allowing defendants thirty days in which to file answer and defense bond, the plaintiff appealed.

<p>OPINION ON EVIDENCE — negligence—Instructions—Telegraphs— The Code, See. J¡1S — Mental Anguish.</p> <p>In an action against a telegraph company for negligence in delivering a message, it is error for the court to refer in its charge to the “proverbial slowness of the messenger boy.’’</p> <p>Clark, J., dissenting.</p>

<p>AotioN by Mamie Weeks against the Wilmington and Weldon Railroad Company, heard by Judge Francis D. Winston and a jury, at April Term, 1902, of the Superior Court of Jones County. From a judgment for the plaintiff, the defendant appealed.</p>

Actiou by M. E. Knight against J. C. Taylor and others, heard by Judge Francis D. Winston and a jury, at April Term, 1902, of the Superior Court of Pitt County. From a judgment for the plaintiff, the defendants appealed.

ActioN by I). IT. Gill against Wm. Dixon and others, heard by Judge II. R. Bryan, at February Term, 1902, of the Superior Court of Vance County. From a judgment sustaining a demurrer to the complaint, the plaintiff appealed.

<p>PetitioN to rehear this ease as reported in 129 N. C., 141, is allowed.</p>

<p>PetitiON to rehear this case, reported in 130 N. C., 183, allowed, and case remanded.</p>

<p>CHATTEL MORTGAGES — Mortgages—Liens—Landlord and Tenant.</p> <p>A mortgage given by a tenant to a third person on his crop, produced on a certain farm, does not give a lien on rents paid by a sub-tenant of a portion of the farm where such rents are assigned before the execution of the mortgage.</p>

<p>1. NONSUIT — Dismissal—Evidence.</p> <p>On a motion for a nonsuit, the evidence of the plaintiff must be accepted as true, and all the evidence must be construed in the most favorable light to him.</p> <p>2. CONTRIBUTORY NEGLIGENCE — Questions for Jury — Personal Injury — Railroads.</p> <p>In an action against a railroad company for personal injuries, the question of contributory negligence is for the jury if there is a conflict in the evidence.</p> <p>3. CONTRIBUTORY NEGLIGENCE — Directing Verdict — Burden of Proof — Acfs /.SSI', Chap. ,%3.</p> <p>In an action against a railroad company for personal injuries, the burden of proving contributory negligence being on the defendant, the trial court can not direct a verdict for the defendant.</p>

ActioN by S. H. Loftin and others against E. E. Hill, heard by Judge E. W. Timberlake and a jury, at March Term, 1902, of the Superior Court of LbNotb County. From a judgment for the plaintiffs, the defendant appealed.

Action by Levi Thompson against W. P. Exum, heard by Judge O. II. Allen and a jury, at April Term, 1902, of the Superior Court of Wayne County. From a judgment for the plaintiff, the defendant appealed.

AotioN by William Arnold and others against 0. Hardy and wife, heard by Judge W. 8. O’B. Robinson and a jury, at November Term, 1901, of the Superior Court of Habnett County. From a judgment for the defendants, the plaintiffs appealed.

ActioN by William Arnold and others against W. D. Dennis and others, heard by Judge W. 8. O’B. Robinson, and a jury, at November Term, 1901, of the Superior Court of ITaeNEtt County. Rrom a judgment for the defendants, the plaintiffs, appealed.

ActioN by George Page, administrator of John Page, against tbe Life Insurance Company of Virginia, beard by Judge W. 8. O’B. Robinson and a jury, at November Term, 1901, of tbe Superior Court of Habnett County. From a judgment for the plaintiff, the defendant appealed.

ActioN by J. W. Perry against the Bank of Smithfield, heard by Judge W. S. O’B. Robinson and a jury, at December Term, 1901, of the Superior Court of JohNstoN County. From a judgment for the plaintiff, the defendant appealed.

ActioN by J. E. and 0. A. Martin against the Bank of Fayetteville, heard by Judge W. 8. O’B. Robinson and a jury, at March Term, 1902, of the Superior Court of Oum-BEitLANi) County. From a judgment for the defendant, the plaintiffs appealed.

Actiok by Vina Ann Coleman and others against W. G. Nowell, administrator of the estate of M. Q. Coleman, and others, heard by Judge W. 8. O’B. Robinson, at April Term, 1902, of the Superior Court of Columbus County. From an order continuing restraining order to the hearing, the defendants appealed.

ActtoN by B. W. Brinkley against Henry Smith, heard by Judge Thos. A. McNeill and a jury, at May (Special) Term, 1901, of the Superior Court of Columbus County. From a judgment for the plaintiff, the defendant appealed.

Action by W. W. Jones against the Wilmington and Weldon Railroad Company, heard by Judge Frederick Moore and a jury, at March Term, 1901, of the Superior Court of CUMBERLAND County. From a judgment for the defendant, the plaintiff appealed.

ActioN by W. M. House against Minnie House, heard by Judge Francis D. Winston and a jury, at July (Special) Term, 1902, of the Superior Court of Wake County. Eroni a judgment for the defendant, the plaintiff appealed.

<p>BANKRUPTCY — Discharge—Judgment—Alimony.</p> <p>A judgment for alimony is provable against the estate of a bankrupt, and bence tbe discharge of the bankrupt constitutes a discharge of the judgment.</p>

AotioN by E. Gr. Whitfield and others against Ransom Garris and others, heard by Judge W. S. O’B. Robinson, at November Term, 1901, of the Superior Court of Wayne County. From a judgment for the defendants, the plaintiffs appealed.

<p>TRUSTS — Resulting Trusts — Husband and Wife — Gifts.</p> <p>Where a husband deposits money in a bank in the name of his wife and real estate is purchased with such funds and a deed is made to the wife, the property becomes her separate estate, and no trust results from such transaction in favor of the husband.</p>

<p>ActioN by A. J. Planner against Carrie L. and Henry W. Butler, heard by Judge E. W. Timberlahe and a jury, at April Term, 1902, of the Superior Court of New HauoveR County. From a judgment for the plaintiff, the defendants appealed.</p>

ActioN by T. E. Savage against J. A. Davis, beard by Judge E. W. Timberlahe and a jury, at October Term, 1901, of tbe Superior Court of Edgecombe County. From a judgment for tbe plaintiff, both plaintiff and defendant appealed.

AN action by Louis Wilson and others against the. Beaufort Lumber Company and others, heard by Judge Francis D. Winston, at March Term, 1902, of the Superior Court of Pitt County. Erom a judgment for the plaintiffs, they appealed.

AotioN by S. L. Shankle, administratrix of W. L. Shankle, against G. A. Whitley, heard by Judge Thomas A. McNeill and a jury, at April Term, 1902, of the Superior Court of RichmoND County. From a judgment for the defendant, the plaintiff appealed.

<p>BASTARDY — Legitimation—The GocLe, Secs. 39, 136, 255 — Acts 188G, Chap. 766.</p> <p>Where, by tbe laws of tbe domicile of tbe parents at tbe time of tbe birtb of tbeir bastard child and of their marriage, their marriage legitimates him, tbe legitimacy attaches at tbe time of tbe marriage, be being a minor, and follows him wherever be goes.</p>

ActioN by G. E. and Martha Burns against J. W. Wamble, heard by Judge Walter E. Beal and a jury, at November Term, 1901, of the Superior Court of Chatham County. From a judgment for the plaintiffs, the defendant appealed.

ActioN by the Queen-City Printing and Paper Company against Henry M. McAden, beard by Judge Ii. B. Sia/rhuck and a jury, at January Term, 1902, of tbe Superior Court of MeciclKNIutRg County. Tbis action is brought to recover the amount ($500) subscribed by defendant for ten shares of stock in plaintiff company.

<p>ActioN by Fannie M. Hall against Allan Hall, heard by Judge Thomas A. McNeill and a jury, at May Term, 1902, of the Superior Court of Mooee County. From a refusal to render judgment for the defendant, he appealed.</p>

ActioN by J. W. Williams and others' against Calvin Avery and others, heard by Judge M. II. Justice and a jury, at October Term, 1901, of the Superior Court of Buhee County. From a judgment for the plaintiffs, the defendants appealed.

<p>ActioN by E. B. Springs, surviving partner of Springs & Burwell, against IT. N. Pharr, administrator of W. L. Owens, and W. E. & J. A. Berryhill, trading as Berryhill & Son, heard by Judge TF. A. Hoke, at October Term, 1901, of the Superior Court of MecRXENbubg County. Erom a judgment for Berryhill & Son, the plaintiff appealed.</p>

ActioN by L. G. Pickett and Mary Pickett, bis wife, against W. W. Garrard, beard by Judge Walter E. Neal and a jury, at March Term, 1902, of the Superior Court of Dueham: County. From a judgment for tbe plaintiffs, the defendants appealed.

ActxoN by T. J. Gatt-is against John O. Kilgo and others, heard by Judge Thos. J. Shaiv and a jury, at November Term, 1901, of the Superior Court of Granville County. From a judgment for the plaintiff, the defendants appealed.

ActioN by the State on tbe relation of Eunice Eowler and another against C. E. McLaughlin, administrator of Joseph McLaughlin, hoard by Judge Thos. A. McNeill, at March Term, 1902, of the Superior Court of UnioN County. Erom judgment for the plaintiffs, the defendant appealed.

ActioN by B. Morris against Liverpool, London and Globe Insurance Company, beard by Judge Walter H. Neal, at Chambers, in Laurinburg, N. 0., on 24th day of June, 1902. From the refusal of the Court to set aside tbe judgment, tbe defendant appealed.

<p>1. DEEDS — Execution—Delivery.</p> <p>A deed is not executed and will not be enforced where the maker has not gone so far with its execution that he can not recall or control it.</p> <p>2. DEEDS — Delivery.</p> <p>A deed is only operative from the time of actual' delivery.</p> <p>3. DEEDS —Execution —Delivery —Acknowledgments —Presumptions.</p> <p>The delivery of a deed will not be presumed from the acknowledgment of the husband and the acknowledgment and privy examination of the wife.</p>

<p>EVIDENCE — Incompetent—Telegraphs—Harmful Error.</p> <p>In an action to recover damages for the maintenance of telegraph poles on land, the evidence of a witness, an adjacent land-owner, that he would not have the poles across his land for several hundred dollars, was incompetent.</p>

<p>Actiow by Julian M. Baker against N. B. Dawson, administrator of S. P. Jenkins, beard by Judge Henry B. Bryan, at Spring- Term, 1902, of tbe Superior Court of Edgeoombe County. Erom a judgment for tbe plaintiff, tbe defendant appealed.</p>

ActioN by C. H. Robinson and others against E. E. Lamb, beard by Judge Geo. A. Jones and a jury, at Spring Term, 1902, of the Superior Court of Camden County. Erom a judgment for the plaintiffs, the defendant appealed.

ActioN by Chas. D. Mott against the Southern Eailway Company, heard by Judge Thos. J. Shaw and a jury, at May Term, 1902, of the Superior Court of Ieedei.l County. From a judgment for the defendant, the plaintiff appealed.

ActioN by the Raleigh Hosiery Company against the Raleigh and Gaston and Seaboard Air Line Railroad Companies, heard by Judge O. S. Allen and a jury, at April Term, 1902, of the Superior Court of Wake County. Erom a judgment for the defendants, the plaintiff appealed.

<p>ActioN by E. E. Lamb against Elizabeth City, heard by Judge O. II. Allen and a jury, at March Term, 1901, of th© Superior Court of PasquotaNe County. From a judgment for the defendant, the plaintiff appealed.</p>

ActioN by Mary E. Sinclair and another against N. G. ITuntley and others', beard by Judge Thomas A. McNeill and a jury, at April Term, 1902, of tbe Superior Court of Anson County. Erom a judgment for tbe defendants, tbe plaintiffs appealed.

Actiow by Ida L. Bell against J. H. Wycoff, heard' by Judge A. L. Goble, at February Term, 1902, of the Superior Court of RocktNGIIam County. After the failure of the defendant Sheriff to make due return of the summons issued to him in the action of Ida, L. Bell v. Wot. T. Bell, upon motion of the plaintiff, jjudgment nisi wa'S entered against him under section 20Y9 of The Code by the Court, and sci. fa. issued.

AotioN by Alfred Palmer against the Winston-Salem Railway and Electric Company, heard by Judge A. L. Goble and a jury, at March Term, 1902, of the Superior Court of Eos-sythe County. From a judgment for the plaintiff, the defendant appealed.

ActiON by Arthur Dorsett against the Clement-Ross Manufacturing Company, beard by Judge Thos. J. Shaw and a jury, at April Term, 1902, of the Superior Court of Daved-SON County. Erom a judgment for th.e plaintiff, the defendant appealed.

<p>AGENCY — Principals and, Agent — Goniraeis—Contractor■—Declara-tions — Evidence—Insufficiency.</p> <p>In this action to- recover from the owner of a house for lumber used therein, the evidence is insufficient to show that the contractor was the agent of the owner of the house in purchasing the lumber.</p>

ActioN by A. E. Williams against the Iron Belt Building and Loan Association and J. S. Manning, trustee, beard by Judge Walter H. Neal, at January Term, 1902, of tbe Superior Court of Dukham County. From a judgment for tbe defendants, tbe plaintiff appealed.

<p>Action by S. J. Finch against J. W. Einch and others, heard by Judge Thos. J. Shaw and a jury, at April Term, 1902, of the Superior Court of Davidson County. Erom a judgment for the plaintiff, the defendants appealed.</p>

<p>ActioN by Mary B. McLean and others against W. W. Bullard, beard by Judge Thos. A. McNeill, at March Term, 1902, of the Superior Court of Scotland County. From a judgment of nonsuit, the plaintiffs appealed.</p>

Actioet by J. G. Keek against tbe American Telephone and Telegraph Company, and the Atlantic and Yadkin Railway Company, heard by Judge Walter Ii. Neal and a jury, at February Term, 1902, of the Superior Court of Guilford County. From a judgment for the plaintiff against the American Telephone and Telegraph Company, it appealed.

ActioN by Jane E. Wilkes against T. W. Allen and others, heard by Judge A. L. Coble, at October Term, 1902, of the Superior Court of Mecklenburg County. From a judgment for the plaintiff, the defendants appealed.

Action by H. A. Shute and others against W. C. Heath and W. S. Lee, heard by Judge T. A. McNeill and a jury, at March Term, 1902, of the Superior Court of Union County. From a judgment for the defendants, the plaintiffs appealed.

Action by D. W. Belding against B. N. Archer and others, heard by Judge Geo. A. Jones and a jury, at Fall Term, 1901, of the Superior Court of Clay County. On the 9th of November, 1893-, Milo Belding conveyed to the defendant Archer, for the consideration pi $25,000, certain real estate, saw-mills, booms' and personal property at and near Lenoir City, Tennessee, and also certain timber logs in Graham County, North Carolina.

ActioN by J. H. Joyner and others against Mary A. Sugg and another, heard by Judge F. D. Winston and a jury, at April Term, 1902, of the Superior Court of Pitt County. Erom a judgment for the defendants, the plaintiffs appealed.

Action by tbe J. A. Fay & Eagan Company against H. C. Causey and others, heard by Judge Thomas J. Shaw and a jury, at December Term, 1901, of the Superior Court of Guilford County. From a judgment for the defendants, the plaintiff appealed.

Action by B. Davis against M. & C. Summerfield, heal’d by Judge Walter II. Neal and a jury, at March Terr , 1902, of the Superior Court of Durham County. From a judgment for the plaintiff, the defendant appealed.

Action by Price Lefler and another against the Western Union Telegraph Company, heard by Judge Thomas J. Shaw and a jury, at May Term, 1902, of the Superior Court of Rowan County. From a judgment for the plaintiffs, the defendant appealed.

ActioN by tbe town of Gastonia and others against the McEntee-Peterson Engineering Company and the American Surety Company, heard by Judge H. B. 8tarbuclc and a jury, at February Term, 1902, of the Superior Court of Gaston County. This was a civil action, tried at the Spring Term, 1902, of Gaston Superior Court by Judge Starbuck.

ActiON by the Town of Gastonia and others against the McE'ntee-Petexson Engineering Company and the American Surety Company, heard by Judge H. B. Starbuclc and a jury, at February Term, 1902, of the Superior Court of Gaston County. From a judgment for the plaintiffs, the American Surety Company appealed. The statement of case in the appeal of the Post-Glover Electric Company and Illinois Insulated Wire Company, in this case, ante, is a sufficient statement in this appeal.

ActioN by Jennette G. Moore against J. H. Moore, beard by Judge W. B. Councill, at Chambers, at Hickory, N. C., July 26, 1902. From an order reducing alimony pendente lite in a divorce suit pending in Alexander County, the plaintiff appealed.

<p>Action by S. H. Lane against E. B. Raney, heard by Judge F. D. Winston and a jury, at February Term, 1902, of the Superior Court of Craven County. From a judgment for the plaintiff, the defendant- appealed.</p>

ActioN by G. R. Westfelt and others against W. S. Adams, heard by Judge George A. Jones and a jury, at July Term, 1901, of the Superior Court of Swain County. From a judgment for the plaintiff, the defendant appealed.

Action by Alice Briscoe and others against N. Young, heard by Judge F. D. Winston and a jury, at June (Special) Term, 1902, of the Superior Court of Rutherford County. From a judgment for the plaintiffs, the defendant appealed.

Action by Sarah A. Tate against the Mutual Benefit Life Insurance Company, beard by Judge F. D. Winston and a jury, at June (Special) Term, 1902, of the Superior Court of Rutherford County. From a judgment for the defendant, the plaintiff appealed.

Action by M. Ii. Justice, executor of Emily Forney, against Solomon Gallert, administrator of J. A. Forney, heard by Judge F. D. Winston and a jury, at June (Special) Term, 1902, of the Superior Court of Rutherford County. From a judgment for the plaintiff, the defendant appealed.

Action by C. B. Smith, as executor, and others against P. W. Patton and others, heard by Judge W. B. Councill, at Spring Term, 1902, of the Superior Court of Burke County. From a judgment for the plaintiffs, the defendants appealed.

Action by Mary L. Beach, administrator of W. E. Beach, against the Southern Railway Company, heard by Judge W. A. Hoke, at August Term, 1902, of the Superior Court of Burke County. From a judgment for the plaintiff, the defendant appealed.

Action by M. A. Phillips against Blake Wiseman and Sarah A. Phillips, heard by Judge W. A. Hoke and a jury, at May Term, 1902, of the Superior Court of Mitchell County. From a judgment for the plaintiff, the defendants appealed.

Action by the City of Winston against the City of Salem, heard, by Judge Thos. J. Shaw, at September Term, 1902, of the Superior Court of Forsyth: County. From a judgment for the plaintiff, the defendant appealed.

Action by the Southern Loan and Trust Company against D. W. C. Benbow and others, heard by Judge Thos. J. Shaw and a jury, at December Term, 1901, of the Superior Court of Guilford County. From a judgment for the defendants, the plaintiff appealed.

Action by W. U. Ratliff and others against J. H. Ratliff and others, heard by Judge Thos. A. McNeill and a jury, at December (Special) Term, 1901, of the Superior Court of Anson County. From a judgment for the plaintiffs, the defendants appealed.

Action by Charles A. Petteway against T. A. McIntyre and another, heard by Judge O. H. Allen and a jury, at October Term, 1901, of the Superior Court of Onscow County. From, a judgment for the plaintiff, the defendants appealed.

Action by Joseph Dunn against the Wilmington and Weldon Railroad Company, heard by Judge Frederick Moore and a jury, at December Term, 1900, of the Superior Court of Duplin County. From a judgment for the plaintiff, the defendant appealed.

Action by Harriett E. Rhea against E. E. Rawls and others, heard by Judge M. H. Justice and a jury, at June Term, 1902, of the Superior Court of Buncombe County. From a judgment for the defendants, the plaintiff appealed.

ActioN by J. B. Brown against the Atlanta and Charlotte Air Line Railway Company, beard by Judge A. L. Coble and a jury, at October Term, 1902, of the Superior Court of Mecklenburg County. From a judgment for the plaintiff, the defendant appealed.

<p>1. BURDEN OF PROOF — Principal and Agent — Agency—Commissions — Bents.</p> <p>Where a principal sues an agent for rents collected, and the agent admits the collection, and alleges that the rents are retained as commissions, the burden of establishing the right to the commissions is on the agent.</p> <p>2. AGENCY — Principal and Agent — Contracts.</p> <p>Where no term is fixed for the continuance of a contract, either party may terminate it at will.</p> <p>3. PAYMENTS — Principal and Agent — Estoppel.</p> <p>The acceptance by a principal of a check from an agent, accompanied by a letter recognizing the fact that such check will not be a full settlement unless so accepted by the principal, does not estop the principal from claiming a balance.</p> <p>4. AGENCY — Principal and Agent — Bents—Lease.</p> <p>Agents who manage realty are not entitled on the termination of the agency to retain commissions on rents to accrue in the future from leases made by them.</p>

Action by E. B. Hopkins and another against the Norfolk and Southern Railway Company and another, heard by Judge George A. Jones and a jury, at Spring Term, 1902, of the Superior Court of Tyrrell County. From a judgment of nonsuit, the plaintiffs appealed.

<p>1. JURISDICTION — Superior Court — Bonds—The Code, See. 543-Public Officers.</p> <p>Where an action is brought to recover tbe fees of an office amounting to $500, and in tbe same action judgment is asked against the sureties on a ?200 bond, given in a quo warranto proceeding, tbe superior court bas jurisdiction.</p> <p>2. FORMER ADJUDICATION —Bonds —Offices —Pees —Estoppel — Quo Warranto.</p> <p>Judgment as to tbe title to an office in a quo warranto proceeding is not an estoppel to an independent action to recover tbe fees of tbe office.</p> <p>3. ACTIONS — Joinder—Fees—Quo Warranto — Bonds.</p> <p>An action for tbe fees of an office and one on tbe bond given in tbe quo warranto proceedings may be joined.</p>

Action by C. A. Smith and others against Haywood Parker and others, heard by Judge Frederick Moore, at Chambers, in Asheville, N. C., on 27th and 28th June, 1902. Erom a refusal to dissolve a restraining order, the defendants appealed.

Action by M. E. Benedict against H. O. Jones and others, beard at May Term, 1902, of the Superior Court of Buncombe County.

Action by D. E. Fleming against tbe- Southern Railway Company, beard by Judge A. L. Coble and a jury, at November Term, 1901, of the Superior Court of Iredell County. From a judgment for the plaintiff, tbe defendant appealed.

Action by Henry Stewart against Benj. Keener and others, heard by Judge Frederick Moore and a jury, at Spring Term, 1902, of the Superior Court of Macon County. From a judgment for the defendants, the plaintiff appealed.

ActioN by J. W. Byrd against J. E. Bradburn, beard by Judge Frederick Moore and a jury, at May Term, 1902, of the Superior Court of Jackson County. From an order setting aside a verdict for the defendant, the defendant appealed.

Action by Thos. D. Johnston and others against Jesse Case and others, heard by Judge Frederick Moore and a jury, at May Term, 1902, of the Superior Court of Buncombe County. From a judgment for the plaintiffs, the defendants appealed.

Action by W. M. Shelton and wife against W. Wilson and others, heard by Judge T. A. McNeill and a jury, at Spring Term, 1900, of the Superior Court of Transylvania County. From a judgment for the plaintiffs, the defendants appealed.

<p>PRINCIPAL AND SURETY — Sureties—Public Officers — Contribution — Indemnity Bonds.</p> <p>One who is about to become a surety witb others may stipulate with the principal, without the knowledge of the other sureties, for a separate indemnity for his own. benefit.</p>

Action by Lou M. Bond and others against J. W. Wilson, beard by Judge W. B. Councill and a jury, at June Term, 1902, of the Superior Court of Burke County. From a judgment for the plaintiffs, both the parties, appealed.

Action by W. K. McClure against C. A. Fellows and others, beard by Judge W. A. Hoke, at May Term, 1902, of the Superior Court of Mitchell County. From a judgment for the plaintiff, the defendants appealed.

Action by W. P. Simpson against the Enfield Lumber Company, heard by Judge George H. Brown, and a jury, at April Term, 1902, of the Superior Court of Halifax County. From judgment for the plaintiff, the defendant appealed.

Action by A. T. Livermon against the Roanoke and Tar River Railroad Company, beard by Judge George H. Brown and a jury, at April Term, 1902, of the Superior Court of Bertie County. This is an action for the recovery of the value of cord wood burned through the negligence of the defendant while piled up along its track awaiting shipment. The material portions of the complaint are as follows: 2.

<p>1. APPEAL — Rules of Court — Rules 5, 17 — Dismissal.</p> <p>A motion by tbe appellee to docket and dismiss, made before tbe docketing of tbe transcript, tbougb not at tbe first opportunity, will be allowed.</p> <p>2. APPEAL — Dismissal—Rules of Court — Rules 5, 17 — Transcript.</p> <p>Where tbe trial judge fails to settle a case on appeal, so that tbe transcript may be docketed seven days before tbe call of the district, tbe appellant must docket so mucb of tbe record as be can obtain, or if none is obtainable, make affidavit of that fact and move for certiorari.</p>

Action by Maggie V. Green against John A. Green, heard by Judge M. H. Justice and a jury, at September Term, 1902, of the Superior Court of Jackson County. Erom a judgment for the defendant, the plaintiff appealed.

Action by Flora J. Watkins against the Kaolin Manufacturing Company, heard by Judge Fred. Moore and a jury, at May Term, 1902, of the Superior Court of Jackson County. From a judgment for the plaintiff, the defendant appealed.

<p>FRAUDS, STATUTE OP — Vendor and Purchaser — Contracts.</p> <p>A vendor who signs a contract for the sale of land can not enforce the payment of the purchase-money by the vendee if he has not signed the contract, though the vendee has paid a part of the purchase-money and has been put in possession.</p>

<p>1. COVENANTS —Warranty —Deeds —Judgments —Possession — Ouster.</p> <p>To constitute a breach of warranty there must be an ouster or a disturbance of the possession, and a judgment against a grantee is not sufficient.</p> <p>2. PLEADINGS — Complaint—Covenants—Warranty—Ouster.</p> <p>A defective allegation of ouster, in an action for breach of covenant of warranty, will be treated as a defective statement of a good cause of action if the defendant takes no exception thereto.</p> <p>3. PLEADINGS — Complaint —Covenants —Warranty—Ouster—The Code, Sec. B60'.</p> <p>In an action for breach of a covenant of warranty, to defend the title against all persons claiming under the covenantor, a failure to allege that the party alleged to have recovered the land from the plaintiff claimed under the covenantor, renders the complaint defective, which defect may be taken advantage of at any time.</p> <p>4. COVENANTS — Warranty—Parties.</p> <p>A grantee without warranty may maintain an action against a prior grantor with warranty.</p> <p>5. COVENANTS — Warranty—Parties.</p> <p>A warranty is a covenant real and runs with the estate, and can not be assigned or separated from it.</p> <p>€. COVENANTS' — Seizure—Parties.</p> <p>A covenant of seizure does not run with the land, and may be assigned separate from it.</p> <p>7. CHAMPERTY AND MAINTENANCE — Parties—Covenants—The Code, Sec. 177.</p> <p>An agreement assigning the right to sue for a breach of a covenant of warranty, without consideration, and for the purpose of bringing suit, is champertous, and the assignee can not maintain the action, he not being the real party in interest.</p>

Action by I. G. Harris against the Balfour Quarry Company, heard by Judge W. B. Councill and a jury, at May Term, 1902, of the Superior Court of Henderson County. From a judgment for the plaintiff, the defendant appealed.

Action by G. C. Farthing and another against C. W. Rochelle, heard by Judge T. J. Shaw and a jury, at September Term, 1901, of the Superior Court of Durham: County. This is an action for the specific performance of a contract for the sale of land. It is based upon the following correspondence : Exhibit “A.” “March 6, 1901. “To C. W. Rochelle, Reidsville, N. O. “I will give you two thousand dollars for your lot, if accepted to-night.

<p>NEGLIGENCE —Contributory Negligence —Couplers —Defective — Railroads.</p> <p>In an action by a brakeman for damages for personal injuries, the injury being caused, not by a defective coupler, but because the plaintiff negligently used his foot to push the bumper in place, while doing the coupling, he can not recover.</p> <p>Clark and Douglas, J. J., dissenting.</p>

ActioN by John S. Henry against Winfield McCoy and others, heard by Judge M. H. Justice, at November Term, 1902, of the Superior Court of Macon County. From a judgment for the defendants, the plaintiff appealed.

Action by J. S. & J. R. Thomas against the Southern Railway Company, heard by Judge ill. H. Justice, at September Term, 1902, of the Superior Court of Haywood County. Prom a judgment for the plaintiffs, the defendant appealed.

<p>ActioN by Thomas A. Kiser, by his guardian, against the Hot Springs Barytes Company, heard by Judge W. B. Councill and a jury, at August Term, 1902, of the Superior Court of Madison County.</p> <p>“The plaintiff above named complains of the defendant and alleges:</p> <p>“First, for a first- cause of action—</p> <p>“1. That this plaintiff is an infant under the age of twenty-one years.</p> <p>“2. That on the 6th of January, 1900, upon application duly made in his behalf, the above named J. A. Kiser was duly appointed by the Clerk of the Superior Court in and for the county and State aforesaid the guardian of said plaintiff, and thereupon duly qualified as such guardian.</p> <p>“3. That the defendant is a corporation duly organized and existing under and by virtue of the laws of the State of New York, and was, on and prior to the 19th day of April, 1899, engaged in the manufacture of barytes, staves and barrels at Hot Springs, in the county of Madison, and State of North Carolina.</p> <p>“4. That on or about the 1st day of January, 1897, J. A. Kiser, father of this plaintiff, entered into a contract with the s'aid defendant company, by which it was agreed that this plaintiff was to- enter the employment of the said defendant and operate for it the said dryer in said defendant company’s works, a position in which no special skill or knowledge of machinery was required, and it was expressly stipulated by the said J. A. Kiser, and agreed to by the said defendant, that this plaintiff should not be required to work in any department of the said defendant company’s establishment where there was danger of receiving injury from the operation of the machinery, the said J. A. Kiser stating to the said defendant company that this plaintiff was unskilled in the use of machinery and ignorant of the dangers attending its operations.</p> <p>“6. That in compliance with said contract and agreement, this' plaintiff at once entered into the employment of the said defendant company and operated for it the said dryer until on or about the 19th day of April, 1899.</p> <p>“6. That this plaintiff is now, and was at the time he received the injuries hereinafter named, unskilled in the use of machinery of any kind, and almost wholly ignorant of the dangers attending the operation of the same, and especially so of the machine in the cooper shop of said defendant company’s establishment, known as the planer, which fact, as this plaintiff is informed and believes, was well known to said defendant.</p> <p>“7. That on and prior to the 19th day of April, 1899, the said defendant company kept in the cooper shop of its establishment a certain machine, known as' a planer, used in the manufacture of staves, barrels, etc., and, as this plaintiff is informed and believes, the said defendant company carelessly and negligently failed to- provide proper appliances to insure the safety of its employees in operating said machine, and so carelessly and negligently kept and maintained said machine, that it became clogged and out of repair to such an extent that the operation of the same was attended by much danger, which fact, as this plaintiff is informed and believes, was well known to s'aid defendant.</p> <p>“8. That on the said 19th day of April, 1899, the said defendant company, well knowing that it had failed to' provide proper appliances to insure the safety of its employees, and that said planer was clogged, defective and out of repair, and that this plaintiff was unskilled in the use and ignorant of the danger attending its operation, carelessly and negligently removed this plaintiff from the drying department of its said establishment, and carelessly and negligently ordered and commanded (him) to assist in the operation of said planer, and carelessly and negligently failed to inform him of the defective and dangerous condition of said machine, or to instruct him in its use.</p> <p>“9. That this plaintiff, being ignorant of the defective and dangerous condition of said machinery, and of the dangers attending its operation, and well knowing that if he refused to obey the commands of said defendant he would be discharged, began work, as ordered, at said planer, and while so engaged on the 19th day of April, 1899, his right, hand became entangled in said machine, and all of the fingers and part of the thumb of said hand were cut off, thereby causing said plaintiff much pain and mutilating and disfiguring his said hand, and permanently disabling him' from performing manual labor, to his great damage in the sum of nineteen hundred and ninety-nine dollars'.</p> <p>“First, for a second cause of action—</p> <p>“1. That this plaintiff is an infant under the age of twenty-one years.</p> <p>“2. That on the 6th day of January, 1900, upon application duly made in his behalf, the above-named J. A. Kiser was duly appointed, by the Clerk of the Superior Court in and for the county and State aforesaid, the guardian of said plaintiff, and thereupon duly qualified as such guardian.</p> <p>“8. That the defendant is a corporation duly organized and existing under and by virtue of the laws of the State of New York, and was, on and prior to the 19th day of April, 189'9, engaged in the manufacture of barytes', staves and barrels at Hot Springs, in, the county of Madison, and State of North, Carolina.</p> <p>“4. That on or about the 1st day of January, 1891, J. A. Kiser, father of this plaintiff, entered into- a contract with the said defendant company, by which it was agreed that this plaintiff was to enter the employment of the said defendant and operate for it the said dryer in said defendant company’s works, a position in which no special skill or knowledge of machinery was required, and which was not attended by any danger to this plaintiff, and it was expressly stipulated by said J. A. Kiser, and agreed to- by said defendant, that this plaintiff should not be required to work in any department of the said defendant company’s establishment where there was danger of receiving injury from the operation of the machinery, the said J. A. Kiser stating to the said defendant company that this- plaintiff was unskilled in the use of machinery and ignorant of the dangers attending its operations.</p> <p>“5. That in compliance with said contract and agreement, this plaintiff at once entered the employment of said defendant, and so continued, as he was under contract to do, operating its said dryer, until on or about the 19th day of April, 1899.</p> <p>“6: That on the said 19th day of April, 1899, the said defendant company, contrary to and in violation of its express contract and agreement, removed this plaintiff from the said drying, department and ordered and commanded him to- assist in operating a certain machine known as a planer, in the cooper shop of said establishment, the operation of Said planer being attended with much danger to a new and unskilled workman, as this plaintiff then was, as was well known to said defendant company.</p> <p>' “7. That on said 19th day of April, 1899, while this plaintiff was engaged in operating said planer in obedience to- the orders of the said defendant company, his right hand became entangled in tbe machinery, and all of the fingers' and part of the thumb of said hand were cut off, thereby rendering said hand useless.</p> <p>“8. That by reason of the injuries received by the plaintiff as aforesaid, in consequence of the wilful violation of the contract and agreement entered into' by the said J. A. Kiser and the said defendant as aforesaid, the plaintiff suffered much pain, and his Said hand was mutilated and disfigured to such an extent as to permanently disable him from performing manual labor, to his great damage in the sum of nineteen hundred and ninety-nine dollars.</p> <p>“RELIEN.</p> <p>“Whereupon, the plaintiff prays for judgment against the defendant for the sum of $1,999, and the costs of this action, to be taxed by the Clerk.</p> <p>“EVIDENCE ON J. A. KISER.</p> <p>“The plaintiff, in support of the issues submitted to the jury by the Court, introduced as a witness J. A. Kiser, who testified as follows:</p> <p>“I am guardian of Thomas Kiser; he is my son; lived at Hot Springs at time I brought this action; my s'on was born December 24, 1870; was hurt April, 1899'; I hired him to defendant in 1897; one Doherty was then manager of the defendant company; I had an understanding and agreement with the company, through Mr. Doherty, that my son was not to work where there would be any danger from working with machinery, and where it would require skill in operating machinery; after hiring him to Doherty, he worked at the dryer, and continued to* do so while Doherty remained with the company ; after this, my son was, without my consent or knowledge, moved from the dryer to the cooper shop, where be was injured; fingers of bis right band were cut off by the knives of the planer; I went to the planer and found the shavings banked up around it, and found Thomas’ fingers on top of the shavings at the planer; a hood could have been put over or in front of the knives — a suction appliance could have taken the shavings out of the room; modern machinery is supplied with this appliance; took the boy home; it was thirteen months before he could do manual work; can work some since; makes' about half a hand; expenses during sickness about $100, and doctor bills about $50; boy suffered very much from his wounds; I have lost his services from the accident to the time he was of age; during the time he worked prior to his majority, his earnings came to me and family.</p> <p>“CROSS-EXAMINATION.</p> <p>“On cross-examination, he said:</p> <p>“Never had any contract with any one but Mr. John Do-herty about how my son was to be worked; contract with Doherty on or about January, 1897, as near as I can recall; contract was, my son was not to be put anywhere where skill was required; no doubt about this; do not know that the word ‘skill’ was used, but he was not to be put anywhere where there was any danger of being hurt; I knew the concern changed hands; my son continued to work after the change; I made no contract except with Doherty; son'got seventy-five to eighty cents under him; after the change got little more, eighty-five to eighty-seven- cents; room where son was hurt was about 40 by 100 feet; machinery in there of different kinds; I never worked at machinery of .this kind; my son was off-bearer from the machine; do not know who put him to bear off lumber; he said Mr. Terry sent him to work in cooper shop — said he did work up there, working before his injury some; said Mr. Sowers went to the other end of the machine and he went to off-bearing; I stated in complaint that the machine was out of repair because it was clogged and there was no means of taking the shavings provided; if anything was the matter with the machine itself, I did not know it; plank sometimes hung in planing mill; I have seen this'; it is my observation that this sometimes occurs at the planer; have no personal knowledge about different kinds of machinery in the shop; my son is an ordinarily intelligent young man; can read and write and cypher, and is not suspected of not being sensible and intelligent; he learns things quickly; he lays brick some, not an expert; do not know what he got as wages all the time; says he got twenty to twenty-five cents per hour at Johnson Oity; if not injured, he could make one dollar per day; I allowed him to keep a part of his wages before he was of age, when he wanted to.</p> <p>“EVIDENCE OE WILLIAM KISER.</p> <p>“Plaintiff then introduced William Kiser, who testified as follows:</p> <p>“I am brother of Thomas, and son of J. A. Kis'er; I was employed by defendant at time Thomas was injured; Mr. Terry wanted thirty-two barrels made on this day, and I went to him for help; he said he did not hare help to spare; I told him I would have to have help if I got through; he then said he could spare Thomas from the dryer, and I said I could use him, and would like to have another man who had worked in the barrel factory; I went back up -in the cooper shop, and commenced to work on the crozier'; I told him I wanted somebody else who understood the machinery in shop; I went up and started up the crozier, a machine for cutting grooves in heads for barrels; Thomas came up, and he and Will Sowers went to the planer and commenced work; Thomas was ‘off-bearer’; I started back to show him about the machine; I knew Thomas did not know anything about it, and as I started towards him he jumped back, and I knew he was' cut; shavings were piled up about the machine so he could not see the knives if he had known they were there; I had been trying several days to get the shaving bin cleaned out below so I could move the shavings out of the way; I had told Mr. Terry to do this; the planing machine had two sets of knives, the front knives being on top and the rear knives under the machine; the shaving bin was full of shavings; there was a hood or protector in front of entrance to machine; none over the rear knives of the machine; a hood or protection could have been put over the rear knives; it would have saved somebody from getting hurt; when I went to the machine after my brother was hurt, a board was in the machine and shavings were clogged up on the bar that held the plank down on the knife, and the plank could not go through; the shavings cut by the top knives fall over the under knives; I know of other machines that have fans and suction pipes' to take shavings away; if this machine had had such appliances, it would not have clogged, as shavings would have been carried away; I have worked at one planing machine that had pipes to carry shavings away; the hole where the shavings went through from this planer was about five feet from the planer; there was a rake somewhere in the shop, but it could not have been used that day .as there was no place 1» move them; the order was -to make thirty-two' barrels that day; had to first dress the lumber; I never gave Thomas any instruction about running the machinery in the shop; Mr. T'erry did not do so that I know of; Thomas had worked at the other end of the machine on the day before; he had also worked up there setting up barrels Some; if I had had another hand on the day he was hurt I could have used Thomas to set up laths.</p> <p>“CROSS-EXAMINATION.</p> <p>“On cross-examination, be testified:</p> <p>“I bad some material from day before to use the crozier •upon; brother bad worked in tbe shop, setting np barrels; I told Terry I could use my brother in setting up barrels; I then went up to tbe shop, and my brother came up after-wards ; I knew my brother did not know bow to use tbe planing machine; I did not put him to work on the machine tbe day be was hurt; I do not know bow my brother came to run tbe planer tbe day before be was hurt; tbe machine can be , run with one set of knives at a time; this machine bad been operated in its condition about five years; way to take shavings from machine was to use a rake; sometimes with a scoop; never saw any one use bis bands; machine was clogged with shavings when I saw it, after Thomas was hurt; it sometimes was stopped by plank; tbe rear knives' back from tbe rear of tbe machine were about six to eight inches from tbe rear end of tbe machine; tbe shavings bad accumulated for several days, and I knew they were there; Thomas would be obliged to see tbe shavings at tbe machine when be began to work as ofí-bearer; be did not have to take tbe plank until it came through or by both knives; I might have worked at tbe planer tbe evening after my brother was hurt; I told Mr. Sowers to take charge of tbe machine and run it; I bad no talk with my brother previous to bis injury, at tbe machine where'be got hurt; I would rather plane dry lumber than green; when plank was not coming through, could see tbe near knives, or could see them by stooping down and looking under; Thomas bad seen plank put in tbe planar, and seen it come out, many times; boys like to watch machinery at work; tbe Dohertys were first in charge of shop and property of defendants; it was afterwards turned over to Terry; Terry told me be wanted me to keep right on at work, raised my wages from $1 to $1.25; it was about a month, after tbe change from Dohertys to Terry that work shut down; Tom drew his pay and receipted for it; I did not hear the contract between my father and the D'ohertys; never had any talk about Tom that I remember with Mr. Terry; never asked Mr. Terry to take Tom to work; I agreed with Mr. Terry that Tom was to work in the shop setting up barrels; there would not have been any danger in his using the ‘borer/ or driving hoops, or setting up barrels; the hole in the floor was used for all shavings and borings from all the machinery in the shop; so used for five years; planer I saw at the other place I worked was not like the one where Tom was hurt; I worked on about a year after Tom got hurt; the only defects I knew of in the machine was the lack of a protection to rear knives, and the shavings piled up about the machine, and the hole five feet from the machine; machine itself was all right with these exceptions.</p> <p>“EVIDENCE OF THOMAS KISER.</p> <p>“Thomas Kiser, the injured party, then went upon the witness stand and testified as follows:</p> <p>“I am 22 years old now; was injured in April, 1899; was hurt while at work at a planing machine in defendant’s cooper shop; I was working for defendant; had been working at the dryer most of the time; the day previous to my injuries Worked in cooper shop some; Mr. Terry sent me up there to work; told me to go up and help them, in the barrel factory; I went up- and helped plane lumber; fed the planer on that evening; Mr. Sowers bore off, or worked at the other end of the machine a couple or three hours; next morning I began work at the dryer; Mr. Terry came and told me to go up in ■shop and help make some barrels; I went up, and Mr. Sowers and myself began to run the planer; Sowers took front end of planer, and I took the rear; in a few minutes I was hurt; was injured while trying to get the shavings out of the way, so the plank would come through the machine; I tried to knock the shavings away, and my hand was cut while doing so; I had no instructions prior h> this time about operating this machine; I could not see the knives that cut my hand, the shavings were in the way, and besides, I could not see them without getting down and looking under; I did not know exactly where the knives were; knew there were knives; there was a rake in the mill, but could not be used to any advantage, because shavings were so- piled up. (Witness here describes how he used his hand when fingers were cut off.) Was sick that evening; not much sick after that; suffered with the wound for four months; was twelve months before I could do any work of any account; I can not earn as much as if I had not been injured; could earn one dollar per day more if I had my hand; my injury does not affect my mind much: I have studied a good deal about losing my hand. (Here witness’s evidence was read over to him, and he said it was correct.)</p> <p>“CROSS-EXAMINATION.</p> <p>“On cross-examination, he testified:</p> <p>“That he had told all that had occurred between him and Mr. Terry about going up into the shop, and then proceeded; the first evening I went to shop to work, I just went to work on the machine; no one told me to do so, that I remember; machine was running when I went up; it was' the first time I ever fed that evening, and Mr. Sowers bore off; I saw him getting shavings out of the way; he might have used a scoop; I could not have used one the day after this; would not have been of any use, I know; I knew there were knives under the machine somewhere; I did not look to see where they were; I saw the machine was choking up, and saw something had to be done at once; I could not bare seen the knives' any way for tbe accumulation of shavings; I knew knives were under the machine, because both sides of the plank were dressed; I was not told by any one to keep the shavings away from the machine where I was at work; I was sent up to help make barrels, and that was the first thing I s'aw that needed to be done; I saw that there was no lumber planed, and that Mr. Sowers was back there; I could see that there was no lumber planed when. I went up, and that is why I went to work at the planer; my brother did not tell me to go to the planer, and Terry did not tell me anything, only to go' up. to the factory and help malee barrels; I never had any order from any one to work at this particular machine; I never talked to my brother or Mr. Terry about any machine in the cooper shop; I can’t be mistaken about this; I do not remember that Mr. Terry was in the factory that day, or the evening before; I did not go to the machine voluntarily and commence work exactly; I was sent up by Mr. Terry, and told to help malee barrels', and when I got up there, went to work on the planer; Terry paid me 81 cents, and Doherty 15 cents per day; I was working at the mill when it was sold, and after sale was off two or three months; I then went back and commenced w'ork for Mr. Terry; I engaged to work for him myself; first work was unloading ore off railroad cars; this lasted a day or two; I made no special contract to run the dryer; I also broke up rock sometimes and wheel-barrowed them in; and als'o fed elevator some; I used some of the money I earned at home, and the rest myself; father had control of my money; has asked me to turn it over to him.</p> <p>“Plaintiff put in evidence the summons, dated January 6, 1000, and rested his case.</p> <p>“WILLIAM KISER, RECALLED.</p> <p>“The plaintiff then recalled William Kiser, who testified that the planer was second-hand one; that there was no dressed lumber over from the evening before, except a small amount; that he was foreman of the shop, and generally put the men to work. But sometimes they would come up and go to work at something they saw was needed.</p> <p>"THOMAS KISER, RECALLED.</p> <p>“Thomas Kiser was then recalled, and said that he knew his brother was the foreman of the barrel shop.</p> <p>“The plaintiff then closed his case.”</p> <p>From a judgment for the plaintiff, the defendant appealed.</p>

<p>Petition to rehear this case, reported in 130 N. C., 344.</p>

Action by Milton Dargan and Nora Dargan, bis wife, against the Carolina Central Railroad Company, heard by Judge W. S. O’B. Robinson and a jury, at January Term, 1901, of the Superior Court of Union County. From a judgment for the defendant, the plaintiffs appealed.

Action by William Fitzgerald, by next friend, against the Alma Furniture Company, heard by Judge Thos. J. Shaw and a jury, at February Term, 1902, of the Superior Court of Davidson County. From a judgment for the plaintiff, the defendant appealed.

Action by A. I. Lewis against the Clyde Steamship Company, heard by Judge F. D. Winston and a jury, at March Term, 1902, of the Superior Court of Carteret County. From a judgment for the plaintiff, the defendant appealed.

Action by T. H. Debnam against J. C. Cbitty, Tax Collector in Murfreesboro Township, Hertford County, beard by Judge George A. Jones, at… Held: and the JBoard of County Commissioners of said Hertford County did, on the 19th day of September, 1881, under the provisions of said act, and after finding as a fact that a majority of the qualified voters of said township had voted for said subscription, execute twenty-five negotiable coupon bonds, each for the sum of $1,000,…

<p>TAXATION — Judges—Salaries—Constitution of North Carolina, Art. Jf, Sec. 28 — Income Tax.</p> <p>Where the constitution provides that the salaries of judges shall not be diminished during their continuance in office, the salaries are exempt from taxation.</p>

Iudictment against Stephen Tuten, heard by Judge George A. Jones and a jury, at May Term, 1902, of the Superior Court of Beaufort County, This is a criminal action wherein the defendant has been convicted of selling spirituous liquors by the small measure without license. Upon the trial the defendant testified as a witness in his own behalf. The State offered one John W. Warren to prove the sale. This was the only evidence offered by the State.

<p>Indictment against T. G. Knotts, beard by Judge Francis D. Winston and a jury, at November Term, 1901, of the Superior Court of Halifax County. From a verdict of guilty and judgment thereon, the defendant appealed.</p>

INDICTMENT against James Wilcox, heard by Judge George A. Jones and a jury, at March Term, 1902, of the Superior Court of Pasquotank County. From a verdict of guilty of murder in the first degree, and judgment thereon, the defendant appealed.

<p>1. FALSE PRETENSES — Agency—The Code, Sec. 1025.</p> <p>It is sufficient, to constitute tbe offence of obtaining goods under false pretenses, tbat tbe false representations were made to an agent of tbe owner of tbe goods.</p> <p>2. FALSE PRETENSES — Agency—The Code, Sec. 1025.</p> <p>In an indictment for false pretenses, tbe fact tbat tbe false representations were made to an agent of tbe owner of tbe property, and tbat tbe agent was not empowered to pass title to. tbe property, does not change tbe offence to larceny.</p> <p>3. FALSE PRETENSES — Indictment—The Code, Sec. 1025 — Acts 1891, Chav. 205.</p> <p>An indictment for false pretenses must charge tbat tbe offense was done felopiously.</p>

<p>PISH AND FISHERIES — Clam Beds — The Code, Seos. 8891,. 8398-Acts 1893, Chap. 287, Sec. 2 — Acts 1895, Chap. 160 — Acts 1897, Chap. 13 — Acts 1901, Chap. 250.</p> <p>Under Sections 3391 and 3393 of Tbe Code, clam beds may be laid off and persons indicted for taking clams therefrom.</p>

<p>INDICTMENT against Harry P. McKnight, heard by Judge W. S. O’B. Robinson and a jury, at August Term, 1902, of the Superior Court of Moose County. From a judgment of guilty on a special verdict, the State appealed.</p> <p>Indictment for practicing medicine without license, tried before Robinson, J., and a jury, August Term, 1902, Moore Superior Court. The jury returned the following special verdict: “That- the defendant advertised in the Free Press, a newspaper published in Southern Pines, Moore County, North Carolina, before the finding of the bill of indictment herein, his profession or business in the following words, to-wit: ‘Dr. Harry McKnight. All acute and chronic diseases successfully treated without drugs or medicines. Office hours, nine to eleven a. m.; two to five p. m.; seven to eight-thirty p. m. Second floor brick building, opposite- depot.’</p> <p>“That about the first of the year, 1902, the defendant came Southern Pines, in Moore County, opened an office, at the door of which he placed his sign, in these words: ‘Office of Dr. Harry McKnight,’” and began the treatment of acute and chronic diseases without drugs or medicines; -that the defendant had numerous patients, and claimed to treat as many patients as any other physician in Southern Pines; that his treatment of said patients did not consist in the administration of drugs or medicines, but in manipulation, kneading, flexing and rubbing the body of his patients, and in the application of bot and cold baths, and in prescribing rules for diet and exercise, and made use of these different processes for different patients; that the defendant took supreme charge of the cases of his patients, with a view of effecting a cure and restoring his patients sound bodily health; that the defendant was engaged in the general practice of osteopathy, and professed to effect the cure of diseases by the practice of that science; that he also practiced hypnotism and suggestion under hypnotism, such as deep' breathing, and magnetic healing, and the like, for the purpose of effecting a cure and restoring his patients to sound bodily health; that the defendant exhibited a diploma issued by the Columbia College o.i: Osteopathy, duly incorporated under the laws of Illinois, conferring upon the defendant the degree of Doctor of Osteopathy, dated May 13, 1900, but the defendant was not licensed to practice medicine or surgery, or any of the branches thereof, nor to prescribe for the cure of diseases for fee or •reward, as required by chapter 34 of The Code of North Carolina, and the amendments thereto; that the defendant charged a fee or reward for his services in the treatment of his patients; that upon two occasions he used a small surgeon’s knife in opening an abscess in the mouth of one Shedd, but charged no fee.for his services.</p> <p>“That all the foregoing facts took place in Moore County, North Carolina, prior to the finding of the bill of indictment, and during the year 1902. If, upon the foregoing finding of facts, the Court adjudges the defendant guilty, then the jury find him guilty; and if the Court adjudges the defendant not guilty, the jury returns for its verdict not guilty.”</p> <p>The Court being of opinion that the defendant was not guilty, as charged in the bill of indictment, the jury, in accordance therewith, returned a verdict of not guilty, and judgment was entered discharging the prisoner. Appeal by the State.</p>

Indictment against J. L. Freeman, beard by Judge Walter H. Neal and a jury, at May Term, 1902, of the Superior Court of Guileokd County. From a verdict of guilty and judgment thereon, the defendant appealed.

Indictment against F. M. Blackley, beard by Judge Thos. J. Shaw and a jury, at November Term, 1901, of the Superior Court of Granville County. From a verdict of guilty and judgment thereon, the defendant appealed.

Indictment against June Bishop, John Belfield and Jas. Stevenson, heard by Judge George H. Brown and a jury, at April Term, 1902, of the Superior Court of Bbetie, County. From a verdict of guilty of murder in the first degree and judgment thereon, the defendants appealed.

INDICTMENT against Irvey Hinton, beard by Judge O. E. Allen and a jury, at January Tenn, 1902, of the Superior Court of Wake County. From a verdict of guilty and judgment thereon, the defendant appealed.

INDICTMENT against Geo: Ellsworth and another, beard by Judge T. A. McNeill and a jury, at February Term, 1902, of the Superior Court of Anson County. From an order setting aside a verdict sustaining a plea of former conviction and granting a new trial, the defendants appeal.

<p>INDICTMENT of Clarence Einger, .beard by Judge H. R. S barbudo and a. jury, at April Term, 19'02, of tbe Superior fJourt of Lincoln County. From a verdict of guilty and judgment tbereon, tbe defendant appealed.</p>

INDICTMENT against Will Peoples, heard by Judge A. L. Coble and a jury, at April Term, 1902, of the Superior Court of Mecklenburg County. From a verdict of guilty and judgment thereon, the defendant appealed.

<p>1. JUSTICES OF THE PEACE — Jurisdiction—Constitution, Art. 4 Sec. 27 — Acts 1901, Chap. 182 — Criminal Law.</p> <p>Where a statute permits a fine of as much as $10 for each hog permitted to run at large, and the warrant of a justice charges the running at large of ten hogs, the justice has no jurisdiction.</p> <p>2. SUPERIOR COURTS — Jurisdiction.</p> <p>Where a justice of the peace has no jurisdiction of a criminal action heard by him, owing to the amount involved, the superior court acquires no jurisdiction on appeal if tried on the warrant.</p>

INDICTMENT against Alexander and Samuel McCall, beard by Judge W. B. Council and a jury, at April Term, 1902, of tbe Superior Court of Bueke County. From a verdict of guilty and judgment thereon, the defendants- appealed. -

INDICTMENT against W. E. Hagan, heard bj Judge W. B. •Council and a jury, at October Term, 1902, of the Superior Court of MadtsoN County. From a verdict of guilty of manslaughter and judgment thereon, the defendant appealed.

<p>LARCENY — Intent—Felonious—Evidence-—Sufficiency.</p> <p>The evidence in this case is not sufficient to convict the accused of larceny, as it does not show that the taking was done under circumstances inconsistent with an honest purpose.</p>

INDICTMENT against Eugene Pugh, beard by Judge E. W. Timberlake and a jury, at May Term, 1902, of the Superior-Court of New Hanover County. From a verdict of guilty and judgment thereon, the defendant appealed.

InuictmeNT against Cyrus Dixon, beard by Judge F. D. Winston and a jury at Spring Term, 1902, of tbe Superior ( ourt of Jones County. From a verdict of guilty of murder in tbe first degree and judgment tbereon, tbe defendant appealed.

INDICTMENT against J. D. Ray, beard by Judge George A. Jones, at September Term, 1902, of tbe Superior Court of Halifax County. Following is tbe ordinance: “ORDINANCE 41|-. “It shall be unlawful for bar rooms, groceries, dry goods stores and other places where merchandise is bought and sold (except drug stores, for the sale of drugs and medicines only), to be kept open later than Y :30 o’clock p. m., except Saturdays.