Volume 135 — North Carolina Reports

<p>AotioN by tbe Town of Plymouth against W. D. Cooper, heard by Judge W. B. Council, at Pall Term, 1903, of the Superior Court of Washington County.</p> <p>This action comes up on a special verdict, of which the following are the material parts:</p> <p>That on July 20, 1903, and for many years prior thereto, the defendant was and had been and still is a resident of Eoper, N. C., a village nine miles from Plymouth, N. O.</p> <p>That said defendant was on said July 20, 1903, engaged in livery business at Roper, N. C., having obtained from the county and State the license required by law.</p> <p>That several days prior to July 20, 1903, the defendant, while at Roper, N. C., received a letter from Charles Balfour, a traveling salesman for J. II. LeRoy Co., Elizabeth City, N. C., asking defendant to meet him at Plymouth, N. C., and convey him to Roper and thence to Creswell and Columbia on said 20th July, which the defendant wrote him he would do, and did do so, charging the said Balfour for said services his customary price.</p> <p>That on June 1, 1903, the commissioners of Plymouth passed the following ordinance, among others, in reference to taxation:</p> <p>“On livery stables and persons keeping a horse or horses for hire, or doing any livery business or hiring of horses in the town, $7.50. This shall include any persons making contract for hire in town or carrying any person with a vehicle out of the town for hire.”</p> <p>This ordinance was in force on July 20, 1903, if said commissioners had authority under the law to pass it.</p> <p>The defendant has never paid said tax.</p> <p>Tinder the instruction of the Court the jury thereupon returned a verdict of guilty, and the defendant was fined $25 in accordance with the ordinance.</p>

AotioN by Thomas Brown and others against IT. D. Hamilton and others, heard by Judge W. B. Allen, at December Term, 1903, of the Superior Court of RaNdolph County. Erom a judgment for the plaintiffs, the defendants appealed.

ActioN by T. J. Candler and another against the Ashe-ville Electric Company, heard by Judge W. A. Uolce and a jury, at May Term, 1903, of the Superior Court of Buncombe County. Erom a judgment for the plaintiffs, the defendant appealed.

<p>1. EASEMENTS — Dedication—■Alleys—Pleadings—The Code, see. 240.</p> <p>The complaint in this action to restrain the closing of an alley is not sufficient to show an easement in the plaintiff, the adjoining land owner, entitling him to enjoin the obstruction thereof.</p> <p>2. EASEMENTS — Alleys—Streets—Dedication.</p> <p>An alley is not necessarily a street and the public have not' necessarily a right to its use. '</p>

<p>AotioN by J. E. Bridgers against the Board of Commissioners of Wilson County, beard by Judge Frederick Moore, at Chambers, in Wilson, N. 0., on February 16, 1904. Erom a judgment for the plaintiff the defendants appealed.</p>

<p>ActioN by A. M. ITowell against tbe Board of Commissioners of Wilson County, beard by Judge Frederick Moore, at Chambers, in Wilson, N. 0., February 16, 1904. From a judgment for tbe plaintiff the defendants appealed.</p>

<p>1. INTOXICATING LIQUORS —• County Commissioners — Licenses— Mandamus — Acts 190S, oh. 283 — Acts 1898, oh. 294, sec. 88 — Acts 1897, ch. 168, sec. 84 — Acts 1903, ch. 21¡7, sec. 66 — The Code, sec. 628.</p> <p>Under Acts 1903, eh. 233, a mandamus will not lie to control the discretion of the county commissioners in the matter of granting liquor licenses.</p> <p>2. MANDAMUS — Demurrer Ore Tenus — Pleadings.</p> <p>The motion of the plaintiff in mandamus proceedings, on the pleadings and admissions of defendant, for a mandamus, is in the nature of a demurrer ore tenus to the answer, involving the admission of the facts set out therein.</p> <p>Douglas, J., dissenting.</p>

ActioN by G. C. Graves and others against the Board of Commissioners of Moobe County, heard by Judge M. H. Justice, at Chambers, in Carthage, November, 1903. The Carthage Railroad Company was chartered by chapter 215, Laws of 1885.

<p>ActioN by E. S. Royster Guano Company against W. A. Marks, heard by Judge Walter H. Neal and a jury, at July Term, 1902, of the Superior Court of Stanly County. Erom a judgment for the plaintiff the defendant appealed.</p>

ActioN by tbe State and Commissioners of New Hanover County against tbe Armour Packing Company, beard by Judge Oeo. II. Brown, at October Term, 1903, of tbe Superior Court of New Hanovee. County. This action was brought to recover J Ícense taxes alleged to be due by tbe defendant to tbe plaintiffs under section 91 of tbe Kevenue Act of 1901.

<p>1. ACTIONS — Misjoinder—Attachmeivt—Bonds—The Code, see. 267.</p> <p>It is a misjoinder of causes of action to unite in one suit a cause of action for wrongful attachment and one against the surety for a breach of the attachment bond.</p> <p>2. PARTIES — Misjoinder—Attachment—Bonds.</p> <p>It is a misjoinder of parties to bring a suit for damages against a person suing out an attachment and the surety on the attachment bond.,</p> <p>3. JURISDICTION — Superior Courts — Attachment.</p> <p>An action against a surety on an attachment bond in the penal sum, of $200, being ex contractu, must be brought before a justice of the peace.</p> <p>4. ACTIONS — Misjoinder—Dismissal—Parties—The Code, sec. 272.</p> <p>Where two causes of action'are improperly joined, but one of them because of the amount involved is not within the jurisdiction of the court, it is dismissable as to the one over which the court has no jurisdiction.</p>

ActioN by tbe State on tbe relation of tbe North Caro-' lina Corporation Commission against tbe Southern Eailway Company, beard by Judge O. M. Cooke, at February Term, 1904, of tbe Superior Court of Guilford County. Erom a judgment for tbe plaintiff tbe defendant appealed.

<p>1. EXECUTORS AND ADMINISTRATORS — Estoppel—Accounts—The Oode, secs. 1899, 11/00, 11/02.</p> <p>An account filed by an executor is only prima facie correct, and lie is not estopped to impeach It.</p> <p>2. EXECUTORS AND ADMINISTRATORS — Husband and Wife — Legacies and Devises — Descent and Distribution.</p> <p>An executor whose wife is the residuary legatee under the will of the testator is not entitled to credits for sums paid for taxes on his wife’s land or for money paid to defray his wife’s expenses on a trip.</p>

<p>1. INSTRUCTIONS — Trial.</p> <p>The trial judge need not give instructions in the very language employed in framing them if they are substantially given in the charge.</p> <p>2. INSTRUCTIONS — Trial—Issues—Exceptions and Objections.</p> <p>The language of an instruction exactly corresponding with the words of an issue submitted, to which no exception was taken, is not open to the criticism that it is misleading.</p> <p>3. INSTRUCTIONS — Trial—Exceptions and Objections.</p> <p>Where an instruction is erroneous, and is duly excepted to, the party excepting may avail himself of the error, though he asked no special instruction on the subject.</p> <p>4. DAMAGES — Instructions—Waters and Water-courses.</p> <p>In an action for damages caused by a dam across a stream, an instruction that the party alleging damages must prove the same to the satisfaction of the jury, where the trial judge charged that the burden was on him and defined a preponderance of evidence, is not objectionable.</p> <p>5. DAMAGES — Nominal—Waters and Water-courses.</p> <p>An instruction that to entitle a plaintiff to nominal damages he must show damages capable of being estimated, perceptible, as an appreciable quantity, is erroneous.</p> <p>6. EVIDENCE — Damages—Waters and Watercourses.</p> <p>In an action for damages caused by a dam across a -stream, it is not competent to show the effect of the increased benefit of the water on the lands of adjoining owners.</p> <p>7. EVIDENCE — Damages—Waters and Water-courses.</p> <p>In an action for damages by a dam across a stream, it is competent to show the condition of the banks of the stream above and below the dam in order to show that this condition was not caused by the erection of the dam.</p>

<p>ActioN by W. P. Junge and another against H. P. Mac-Knight, heard by Judge G. M. Goólce, at September Term, 1903, of the Superior Court of Moore County. Prom a judgment for the plaintiff the defendant appealed.</p>

<p>CONTEMPT — Witnesses—Const. 17. 8., Fifth Amendment — The Code, seo. 1215 — Const. N. C., Art. I, see. 11 — Gaming—Pardons.</p> <p>The Code, see. 1115, requiring a witness to testify touching any unlawful gaming done by himself or others, is not unconstitutional by reason of the fifth amendment to the constitution of the United States or Art. I, sec. 11, of the constitution of North Carolina, for the reason that the said statute grants a pardon to the witness.</p>

<p>CARRIERS — Damages—Carriers of Goods.</p> <p>Wliere a carrier wrongfully refuses to deliver freight because the owner declines to pay an alleged overcharge in freight, such carrier cannot avoid payment of damages for injury to the freight by showing that the owner did not have the bill of lading at the time he demanded the goods.</p> <p>Walker and Connor, JJ., dissenting.</p>

ActioN by J. W. Brooks and others against L. 0. Tripp and others, heard by Judge O. S. Ferguson, at March Term, 1904, of the Superior Court of BeuNSwioK County. From a judgment for the defendants, the plaintiffs appealed.

ActioNS by W. L. Helms against Henry Helms and others, beard by Judge II. B. Bryan and a jury, at February Term, 1904, of the Superior Court of Union County. Erom a judgment for the plaintiff the defendants appealed.

<p>ActioN by S. M. Martin against W. D. Clark, beard by Judge W. B. Allen, at Chambers, December, 1903. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by E. M. Sigman against the Southern Eailroad Company, heard by Judge W. R. Allen and a jury, at November Term, 1903 of the Superior Court of Ieedell County. From a judgment for the plaintiff, the defendant appealed.

ActioN by the State on the relation of Annie J. Self and another against J. L. Shugart and others, heard by Judge W. U. Neal, at April Term, 1903, of the Superior Oourt of Subey County. From a judgment for the plaintiffs the defendants appealed.

<p>AgtioN by J. V. Eisber against R. A. Brown, heard by Judge W. II. Neal, at October Term, 1903, of the Superior Court of Cabarrus County. Erom a judgment for the plaintiff the defendant appealed.</p>

<p>1. NEGLIGENCE — Schools—Damages—Teachers.</p> <p>An act done by a teacher in the exercise of his authority, and not prompted by malice, is not actionable, though it may cause permanent injury, unless a person of ordinary prudence could reasonably have foreseen that a permanent injury would naturally or probably result from the act.</p> <p>2. NEGLIGENCE — Schools—Damages.</p> <p>In an action against a teacher for injuries to a pupil, caused by the teacher throwing a pencil at the pupil, which permanently injured his eye, an instruction that unless the jury found that a reasonably prudent man might reasonably or in the exercise of ordinary care have expected that the injury complained of would result from his act in throwing the pencil, defendant should be found not liable, was erroneous.</p>

ActiON by W. W. Jones against the Commissioners of Madison County, heard by Judge E. B. Jones, at Chambers, Asheville, N. 0., October 21, 1903.

Action by the Battery Park Bank against the Board of Commissioners of Madison County and others, heard by Judge E. B. Jones, at chambers, Asheville, N. C., November 20, 1903. Erom a judgment for the plaintiff the defendants appealed.

ActioN by J. M. Bernhardt against the Carolina and North-western Railroad Company, heard by Judge T. J. Shaw, at February Term, 1903, of the Superior Court of Caldwell County. Erom a judgment for the defendant the plaintiff appealed.

<p>CARRIERS — Passengers—Damages.</p> <p>A person who gets on a blind baggage ear, though having a ticket, but not having told the conductor that he had it, and the conductor not having seen it, is not entitled to recover as a passenger for injuries received by being pulled off the train by the conductor.</p> <p>Clark, C. J., dissenting.</p>

ActioN by the City of Winston against E. E. Beeson, heard by Judge IF. B. Allen, at February Term, 1904, of the Superior Court of Eoestth County.

ActioN by City of Winston and the State against W. B. Hudson, heard by Judge W. R. Alien, at February Term, 1904, of the Superior Court of Forsyte County. From a judgment for the plaintiff, the defendant appealed.

<p>1. NEGLIGENCE — Evidence—Master and Servant.</p> <p>In an action for injuries to a servant whose hand was caught in open cog-wheels, testimony that the cog-wheels should have been covered was incompetent.</p> <p>2. NEGLIGENCE — Evidence—Master and Servant.</p> <p>In an action for injuries to a servant whose hand was caught in open cog-wheels, evidence that he had seen one machine with such cogs boxed in is not competent.</p>

ActioN by R. IT. G-illis and others against John A. Arring-dale, heard by Judge O. H. Allen and a jury, at August Term, 1903, of the Superior Court of PeesoN County. Erom a judgment for the plaintiffs both parties appealed.

<p>On petition for rehearing. For former opinion, see 131 N. C., 413.</p>

ActioN by J. L. Hinton against the Mutual Reserve Fund Life Association, beard by Judge M. II. Justice and a jury, at May Term, 1903, of the Superior Court of Pasquotank County. From a judgment for the plaintiff, the defendant appealed.

<p>AotioN by Iobn E. Reyburn against D. C. Sawyer, beard by Judge M. II. Justice, at Spring Term, 1903, of tbe Superior Court of Dabe County.</p> <p>Action to restrain by injunction tbe defendant from maintaining a nuisance, referred to, have decided all issues of fact and law. Tbe referee, from tbe evidence, finds tbe following facts, to-wit:</p> <p>1. Durant’s Island is a body of land lying in Dare County, surrounded by tbe waters of Albemarle Sound, Alligator River, East Lake and tbe llaul'over, and is well known by tbe name of Durant’s Island; all of said waters and land lie wholly within tbe State of North Carolina.</p> <p>2. Durant’s Island is swamp or marsh land, except a little around tbe shore, which is a sand ridge.</p> <p>3. That on tbe southern side of tbe island is a creek or bay making into said island from Albemarle Sound, which creek or bay is known as Tom Mann’s Creek.</p> <p>4. On April IS, 1890, tbe State Board of Education made and executed a deed unto John E. Reyburn, tbe plaintiff, wbicb deed was recorded in Dare County. Said deed describes and tbe boundaries include Durant’s Island.</p> <p>5. Near tbe shore of Tom Mann’s Creek tbe plaintiff bas erected several bouses, wbicb are now, and bave been continuously since April 18, 1890, occupied by plaintiff and bis servants or agents.</p> <p>6. Tbe plaintiff bas a bouse known as an ice-bouse, wbicb is situated over tbe water of Tom Mann’s Creek, wbicb bouse is connected witb tbe land by a wbarf or pier.</p> <p>7. Tbe plaintiff bas cut a canal about ten feet wide and thirty inches deep, wbicb canal connects tbe waters of Tom Mann’s Creek witb tbe waters of Erying Pan, and bas built some roads on tbe island. Tbe said canal was cut prior to tbe erection of tbe nets hereinafter referred to.</p> <p>8. Since 1890 tbe plaintiff bas continuously kept on said island at least two men, who bave lived in the bouses wbicb were built by plaintiff, and bas also kept thereon a stock of cattle and some poultry.</p> <p>9. In 1890, after tbe execution of tbe deed by tbe State Board of Education, tbe plaintiff posted notice on Durant’s Island forbidding others from trespassing thereon, and has kept others from trespassing upon said island.</p> <p>10. There is a channel leading from Tom Mann’s Creek into Albemarle Sound, wbicb channel, after leaving tbe creek, turns eastwa^ly and westwardly nearly parallel with tbe general curvature of tbe shore of tbe island, and running eastwardly until it gets near tbe north-eastern end of tbe island abreast of tbe Haulover, where it connects witb tbe deep water of Albemarle Sound, which lies to tbe northward.</p> <p>11. Erom near tbe mouth of Tom Mann’s Creek, going eastwardly to where it connects witb tbe deep waters of Albe-marie Sound, this channel is from five to six feet in depth and varies from one hundred and seventy-five to six hundred feet in width. There are shoals in this channel upon which the water is only four feet deep.</p> <p>12. On the northern or sound side of this channel is a reef or shoal running nearly parallel with the shore or island, which reef or shoal terminates nearly opposite ITaulover. This reef or shoal varies in width from thirty to one hundred and fifty feet wide. The water on this shoal or reef is from three to four feet deep, and deeper abreast of Tom Mann’s Creek than at other parts, except where the shoal terminates nearly abreast the Haulover.</p> <p>13. The channel above mentioned extends to the west of the mouth of Tom Mann’s Creek.</p> <p>14. On the southern or shore side of this channel the water gradually shoals until it approaches the shore, but in some places it is as deep as in the channel.</p> <p>15. The waters on the southern or shore side of the above-mentioned reef are navigable for boats drawing from three to four feet of water. That part of Albemarle Sound on the inside, or shore side of the above-mentioned reef or shoal, is usually and almost entirely navigated and used by boats called shad boats or sprit-sail boats, which boats when loaded draw about thirty inches of water. Boats of smaller size are also used inside of the said reef or shoal, and occasionally boats of larger size, drawing from three to four feet, come inside this reef or shoal. Boats drawing as much or more than seven feet of water can navigate the waters of Albemarle Sound on the outside of the said reef or shoal, and can pass from Albemarle .Sound through connecting waters to the Atlantic Ocean.</p> <p>16. When it is calm, or in moderate weather, boats drawing thirty inches can cross the reef or shoal. In rough weather, and especially when the wind is from the north, north-east or north-west, boats drawing as much as two feet of water cannot cross the reef or shoal with safety, and in such weather boats of smaller size are not safe in Albemarle Sound. When the wind is from the north, north-east, or north-west, .this reef has the effect to break the force of the ■waves beating upon the lee shore, and it is smoother on the inside of the reef than on the outside, and safer for such boats as usually go on the inside than it would be on the outside of the reef.</p> <p>11. The defendant, prior to the institution of this suit, placed a line of stakes in the waters of Albemarle Sound, which stakes are from two and one-half to four inches in diameter at the water’s edge, and larger at the bottom, and extend four or more feet above the water, and are firmly set or driven in the soil under the water. These stakes are nearly abreast of the Handover and run across the mouth of the above-mentioned channel, and are one hundred and forty feet from its mouth and one hundred and forty feet from the eastern end of the reef, and run parallel with the channel as it empties into the sound, and run nearly at right angles to the reéf. The first pocket or pound is from one hundred to one hundred and fifty yards from the reef on the sound side.</p> <p>18. These stakes for the nets originally began about one hundred yards from the shore, and from that point extended out into the sound a distance of from 1,000 to 1,200 yards. There were two stakes between the shore end of said net stakes and the shore, which two stakes have been removed since this suit began. The stakes starting from the net stake nearest the shore are placed about sixty feet apart, running out a distance of two hundred to three hundred yards. These stakes are called lead stakes. At about a distance of two hundred to three hundred yards from the shore end of the line of stakes a square thirty-six feet each way is formed by stakes of similar size, the stakes forming this square are about thirty-six feet apart, and have smaller stakes from twelve to eighteen feet apart between them. This forms the pocket of the net. From the outer side of this pocket, another line of lead stakes starts and runs out about two hundred and fifty yards, when another pocket is formed, and this continues until four pockets have been formed. The whole row of stakes extend into the sound about 1,200 yards from the stake nearest the shore.</p> <p>19. At certain times during the year a net is attached to these lead stakes running from the stakes nearest the shore to the pound stakes; this net is made of net twine, and is hung upon ninethread manilla rope, which is about three-eighths inch in diameter, which manilla rope is tied to the lead stake at about the level of the water with marlin. The net drops down in the water. These lead lines sag so as to drop) about twelve to eighteen inches below the top of the water in the center between the stakes. This is the usual method of setting Dutch nets.</p> <p>20. There is attached to the pocket or pound stakes a pocket or pound net made of similar twine, with smaller meshes, tied to similar ropes, which ropes are tied to the pocket or pound stakes with marlin. This pocket or pound of the net is about twenty-eight feet square and is level with the water, and tied to the stakes so as to be kept level with the water and to prevent sagging. About two feet above the pocket another line of rope is tied to the paocket stakes. This line of rope, which is tied to the pocket stakes, is called a hand-line and is about two feet above the level of the waterline. The mouth of the pocket is on the side next to the lead. This is the usual method of setting Dutch nets.</p> <p>21. When these stakes are broken off and left in the water so that they do not show above it, a boat might run on one of them, and they become more or less dangerous, as they are liable to, or might knock a bole in the bottom or side of a boat.</p> <p>22. The nets are usually set, in that section, about seven months in the year. The referee is unable to find from evidence when the nets in question were hung upon the stakes, or how long remained, or when taken up. The referee finds that the nets in question were hung to the stakes, or set, and have been taken up at least once, and have been put down again. The stakes have not been taken up since set.</p> <p>23. Boats such as are commonly used and such as can be used in navigating the waters of Albemarle Sound when the nets are not set, can with ease and safety pass between the stakes in the lead of the nets, and should one of such boats strike one of the stakes it would not necessarily injure, or delay the boat. If the stake were rotten or broken off at or below the water’s edge, it would be more apt to injure the boat than if it were sound and as originally set.</p> <p>24. Shad, or sprit-sail boats, and such other boats as usually navigate the waters of that part of Albemarle Sound lying inside of the reef or shoal, can, when the nets are not set, pass between the stakes of the pocket or pound, but not with ease, and these stakes are more apt to injure or delay a boat than the stakes in the lead.</p> <p>25. When the nets are set, shad or sprit-sail boats or smaller boats, and boats as large as any that usually or can navigate the waters of that part of Albemarle Sound lying south of the reef, can, and generally with safety and without delay or hindrance, pass over the nets of the defendant by going over the lead.</p> <p>26. When the nets are set boats can pass through the pocket or pound, but are liable to be delayed, obstructed and hindered in their passage.</p> <p>21. There are times, when the tide is low, the water rough, and the wind blowing hard, that boats, such as are commonly used in that part of Albemarle Sound; cannot cross these nets with ease and safety and might be hindered or delayed by them.</p> <p>28. There are times when there is but little wind, when, in order to pass over the nets, one would have to push down nets so as to let a boat go over. This can be done with safety, and with but little inconvenience, and without any practical delay.</p> <p>29. Plaintiff cannot anchor his yacht where nets or stakes are placed, or so near thereto as will permit her to swing on the nets or stakes. There are no special advantages had by anchoring at the place where the nets are situated or so near thereto as to permit the yacht to swing on the stakes. The usual, customary, and best anchorage is in or near the Erying Pan. Occasionally the plaintiff anchors his yacht on the outside of the reef or shoal, which he can still do.</p> <p>30. The post-office, from which plaintiff gets his mail while on the island, and from which the servants of plaintiff get their mail, is Mashoes, four miles to the eastward. In going to this post-office, or going to Manteo, from the island, you will have to cross the nets of the defendant or go around them.</p> <p>31. In October, 1900 or 1901, Mr. B. G. Crisp, who is the attorney and representative of plaintiff in Dare Comity, went from Manteo to Durant’s Island to see the plaintiff about a matter of business, expecting to return the next day. During the night the wind came on to blow very -hard from the northwardly, and continued to blow very hard for two days. The waves were breaking over the reef to such an extent that the boatman who carried Mr. Crisp to the island would not cross the reef. Owing to the rough water on the reef and difficulty in crossing the reef with the breakers on it and the stakes in the channel, the boatmen were afraid to venture out, and Mr. Crisp did not leave for two days. No attempt was made to start.</p> <p>32. There are eleven stands of nets between Durant’s Island and Masboes, and in going to Maslioes from Durant’s Island you cross eleven stands of nets besides the nets of the defendant.</p> <p>33. None of the boats of the plaintiff, his servants or agents have been delayed or obstructed in any passage which they have undertaken, or have been compelled to change their course, or been damaged on account of the stakes or nets of this defendant, and the plaintiff and his servants or agents have not been prevented from taking any passage on the water on account of the nets of the defendant.</p> <p>34. The plaintiff has access to his island from the waters of Albemarle Sound through the western end of the channel inside of the reef just to the west of Tom Mann’s Creek, also through the channel at the east end of the island. In coming from the post-office or points east of Durant’s Island the plaintiff would have to go around or over the nets; in passing from Tom Mann’s Creek to the Haulover the plaintiff would have to cross the nets or go around them.</p> <p>Dpon the foregoing facts the referee finds the following conclusions of law:</p> <p>(1) That the plaintiff is the owner of Durant’s Island. The Code, section 2521; Aycoclc v. Ii. B. Go., 89 N. C., 32Í.</p> <p>(2)' That the nets and stakes are a public nuisance.</p> <p>(3) That as to the plaintiff, neither the nets or the stakes are a private nuisance.</p> <p>(4) That the plaintiff is not entitled to recover damages for the setting and maintaining said nets, or to have the same abated.</p> <p>From a judgment for the defendant, the plaintiff appealed.</p>

ActioN by W. L. Minnish against the Southern Railway Company, heard by Judge T. J. Shaw and a jury, at November Term, 1903, of the Superior Court of Caldwell County. From a judgment for the plaintiff both parties appealed.

<p>TAXATION — Assessments—Injunction—Remedy at Law — ■Acts 1908, ch. 251 — The Code, sec. 8882.</p> <p>Acts 1903, eh. 251, provides a plain and adequate remedy at law to test the validity and regularity of a tax assessment, and it cannot he tested by an injunction.</p>

ActioN by R. S. McCall against Chas. A. Webb, beard by Judge W. A. Holce, at May Term, 1903, of tbe Superior Court of Buncombe County. Tbe General Assembly by an act passed at its session of 1895 established tbe “Criminal Circuit Court of tbe counties of Buncombe, Madison, Haywood and Henderson,” and tbe plaintiff was duly elected and qualified as Solicitor of tbe circuit for tbe term of four years. In 1897 tbe act was amended by adding tbe county of McDowell to tbe circuit.

Actios by J. L. Hill and others against P. E. Gettys and others, heard by Judge E. B. Jones and a jury, at January (Special) Term, 1904, of the Superior Court of Rutherford County. This is a civil action, invoking the equitable power of the Court to set aside a mortgage executed by the plaintiffs to the defendant C. 0. Gettys, for that same was without any consideration and the execution thereof was procured by the false and fraudulent representations of the mortgagee.

<p>1. DEPOSITIONS — Exceptions and Objections — Waiver—The Code, sees. 1860, 1361.</p> <p>The failure to insert the name of the commissioner in the commission to take the deposition is waived by the objecting party appearing at the taking of the deposition and making no objection thereto until after the trial was begun.</p> <p>2. DEPOSITIONS — Admissions—The Code, see. 1S58.</p> <p>Where a deposition is rejected in limme for the reason that the name of the commissioner was not in the commission, it is not incumbent on the party offering the deposition to show why it should be admitted.</p> <p>3. APPEAL — Depositions—Admissions.</p> <p>An agreement by an appellee that a deposition should not be sent up in the case on appeal because not material to the decision, is an admission that a failure to send it up should not be prejudicial to the appellant, and in effect that the rejected evidence was material if wrongly rejected.</p>

AotioN by J. J. Robinson and others against the city of Goldsboro, heard by Judge W. B. Allen at chambers, Golds-boro, N. C., April 16, 1904. The city of Goldsboro was incorporated by chapter 397, Private Laws 1903. Among other corporate powers conferred by the charter, the city was authorized to establish a system of sewerage, water-works, electric lights, etc., and for that purpose to purchase the system of water-works and electric lights then in operation in said city.

<p>1. RECORDARI — Appeal. ■</p> <p>Where a recordari is ordered as a substitute for an appeal, but is not docketed, the appellee has a right to docket the case and have it dismissed at any succeeding term of the court.</p> <p>2. CONTRACTS — Insurance.</p> <p>A mutual order for insurance cannot change its constitution subsequent to the contract with one of its members and to his detriment except by mutual consent.</p> <p>3. CONTRACTS — Burden of Proof.</p> <p>The burden of showing that a contract was changed by mutual consent is on the person alleging the same.</p> <p>4. APPEAL — Hew Trial — Verdict.</p> <p>Where a verdict is set aside for a supposed error of law, an appeal lies therefrom.</p> <p>5. APPEAL — Dismissal—Judgment—Exceptions and Objections.</p> <p>No appeal lies from a refusal to dismiss an action, but an exception should be taken and the trial proceeded with.</p> <p>6. FOREIGN CORPORATIONS — Domestication—Jurisdiction.</p> <p>A foreign corporation may be sued in this state though it has not been domesticated.</p> <p>7. SERVICE OF PROCESS — Waiver—Jurisdiction—Summons.</p> <p>Where a defendant asks for a recordari, he thereby waives a lack of service of summons.</p>

ActioN by Wilson Kistler and others against A. D. Weaver and others, heard by Judge T. J. Shaw, at chambers, Morganton, N. 0., January, 1904. Erom a judgment for the plaintiffs the defendants appealed.

AgtioN by D. M. Holder against tbe Cannon Manufacturing Company, beard by Judge T. A. McNeill and a jury, at February Term, 1904, of tbe Superior Court of Cabarrus County. From a judgment for tbe plaintiff tbe defendant appealed.

<p>ActioN by J. E. Westbrook and others against Lottie Wilson and others, heard by Judge E. B. Jones and a jury, at January (Special) Term, 1904, of the Superior Court of RutheRfobd County.</p> <p>This was an issue of devisavit vel non, the caveators being the children and only heirs at law of the alleged testator. The propounders were the children of one Lottie Wilson, to whom the larger portion of the estate was given in the alleged will. The caveators alleged and introduced evidence tending to prove that their father at the date of his will was eighty-two years of age; that by reason of dissipation, sickness and old age, his mental and physical powers were so much impaired that he was incapable of making a valid will or other disposition of his property. That, if not legally incapable of doing so, he was the victim of fraud and undue influence exerted over him by Lottie Wilson, with whom he lived in an illicit relationship, and of her two sons, who were bastards, living in the same house. That the said Lottie Wilson, an unchaste, immoral woman, wielded an almost irresistible influence over him. That by reason of his age, condition of health and an accident sustained by being thrown from a mule, he was easily influenced by said Lottie Wilson, who had absolute control over him. The two sons of said Lottie were named as executors to the alleged will; that he was coerced and compelled to sign it by threats and other undue influence of tbe said, parties. The propounders, admitting the age and infirm condition of tbe alleged testator, denied tbat be was incapable of executing tbe will or that any undue influence or coercion was exerted over bim. Tbe usual issue was submitted to tbe jury, to which they responded in the negative, and from tbe judgment rendered thereon the pro-pounders appealed.</p>

<p>ActioN by tbe Fidelity Loan and Investment Company against Frank Lasb and others, heard by Judge T. A. Mc-Neill, at December Term, 1903, of the Superior Court of EoRSYth County. From the judgment there was an appeal.</p>

ActioN by George H. Smathers and others against the Western Carolina Bank and others, heard by Judge B. F. Long, at March Term, 1904, of the Superior Court of Buncombe County. Erom a judgment for the plaintiffs, the defendants appealed.

<p>ActxoN by E. A. Lance against G. W. Butler, beard by Judge E. B. Jones and a jury, at December Term, 1903, of the Superior Court of Buncokbe County.</p> <p>The plaintiff entered into the following contract with Hunter & Lance:</p> <p>Nobti-t Caeolina — Buncombe County.</p> <p>“This instrument of writing, witnesseth, that I have this day and with these presents do hereby consign to Z. T. Hunter and M. E. Lance, partners trading and doing business at Mills River, North Carolina, in Henderson County, under the firm name and style of Hunter & Lance, a certain stock of goods, wares, merchandise, books, accounts, choses in action and effects, together with the fixtures, including safe, show cases, scales, spool-cotton cabinets, etc., now in the store formerly occupied by T. C. Hunter & Co., at Arden, Buncombe County, N. 0., and also one two-horse wagon now in the blacksmith shop of Clayton & Reagan, at Arden, N. 0., being all the property this day conveyed to me by Frank Carter, trustee.</p> <p>“This consignment is made upon the following terms and conditions, to-wit: The said Hunter & Lance are to sell the goods in tbe course of tbeir business for cash, at figures not less than tbe cost of tbe same to me, to-wit: One thousand and sixty-two and 52-100 dollars, tbe proceeds as they arise from tbe sale of said goods to be paid to me or my order until tbe said cost, to-wit, $1,062.51, is fully paid and discharged.</p> <p>Tbe balance of tbe proceeds arising from tbe sale of said goods, if any there shall be, to be paid as follows: One-balf to me and one-balf to be retained by said Hunter & Lance as tbeir compensation for selling and disposing of tbe same.</p> <p>“The title to said goods hereby consigned is to remain in me, and said goods shall be kept separate from tbe general stock of said Hunter & Lance, so that they may at any and all times be fully identified as tbe goods hereby consigned.</p> <p>“Interlineation in tbe 21tb line of tbe first page of this instrument made before signing.</p> <p>“Witness my band and [seal], this December II, 1892.</p> <p>“E. A. LaNCE, (Seal).</p> <p>“Witness: Eraste Carter.'’'’</p> <p>“We hereby agree to receive, bold and dispose of tbe property consigned to us by tbe foregoing instrument, upon tbe conditions and for tbe purposes therein set forth.</p> <p>“Hunter & LaNCE.</p> <p>“Witness: Erawe Carter.’’’</p> <p>Subsequently Hunter & Lance removed tbe goods to Green-ville, S. 0., where Z. T. Hunter executed a chattel mortgage to secure bis individual indebtedness to tbe defendant, under which they were sold, tbe plaintiff being present and forbidding the sale. This action is to recover damages for tbe conversion. Erom a judgment for the plaintiff tbe defendant appealed.</p>

Actiow by J. D. Weeks and others against J. IT. Qninn, heard by Judge B. F. Long, at November Term, 1903, of the Superior Court of Ruthereoed County. From a judgment for the defendant the plaintiff appealed.

ActioN by Setzer & Russell against A. A. Deal, beard by Judge T. J. Slum and a jury, at November Term, 1903, of tbe Superior Court of Catawba County. Erom a judgment for tbe defendant tbe plaintiffs appealed.

Actiok by O. M. Cogdell and wife against the Western Union Telegraph Company, heard by Judge W. II. Neal and a jury, at October Term, 1903, of the Superior Court of MecKLENbueg County. From a judgment for the plaintiffs the defendant appealed.

Actioh by Pleasant Eoy against tbe city of Winston, beard by Judge W. A. Hoke and a jury, at January (Special) Term, 1904, of tbe Superior Court of Eoesyth County. From a judgment for tbe plaintiff tbe defendant appealed.

ActioN by B. M. Allred and others against H. D. Smith and others, heard by Judge B. F. Long, at February Term, 1904, of the Superior Court of EaNdolph County. Nancy Allred was the owner of the land in controversy, all parties to the land claiming title under her. She died leaving the plaintiffs and defendants her heirs at law. Prior to her death she executed a deed for the land in controversy to the defendant G. D. Allred.

ActioN by T. A. Hunter against the Western Union Telegraph Company, beard by Judge W. B. Allen and a jury, at February Term, 1903, of the Superior Court of GuilNobd County. This is an action brought by the plaintiff to recover damages caused by the non-delivery of a telegram addressed to the plaintiff, announcing the death of a second cousin, a child five years of age.

<p>1. NONSUIT — Negligenee.</p> <p>In this action for personal injuries, the evidence of the negligence of the defendant is sufficient to he submitted to the jury.</p> <p>2. NEGLIGENCE — Personal Injuries.</p> <p>In an action for injuries caused by the falling of an elevator, the falling thereof without some apparent cause is evidence of negligence in its original construction.</p> <p>3. NEGLIGENCE — Master and Servant.</p> <p>In an action for injuries caused by the falling of an elevator, a failure to inspect the same for eighteen months is evidence of negligence.</p> <p>4. ASSUMPTION OP RISK — Negligence—Contributory Negligence.</p> <p>A servant employed to operate a freight elevator does not assume the risk of injury owing to a fall of the elevator, in the absence of knowledge of any defect therein, and of any duty to inspect it.</p> <p>5. ASSUMPTION OF RISK — Issues—NegUgenee.</p> <p>In an action for injuries to a servant, contributory negligence is an affirmative defense, and any issue thereon must be tendered by defendant in order to be available.</p>

ActioN by Calvin J. Cowles against S. B. Lovin, heard by Judge W. A. Koine and a jury, at Fall Term, 1903, of the Superior Court of G-kahaM County. From a judgment for the defendant the plaintiff appealed.

ActioN by D. M. Brittain against W. IT. Westhall, heard by Judge W. H. Neal and a jury, at February Term,, 1904, of the Superior Court of Catawba County. Erom a judgment for the defendant the plaintiff appealed.

AotioN by W. W. Carter, administrator of Gr. Carrigan, against the Southern Railway Company, heard by Judge TP. B. Allen, at November Term, 1903, of the Superior Court of Iebdbll County. Erom a judgment for the plaintiff, the defendant appealed.

Actxok by E. T. Garseed against H. Sternberger, heard by Judge 0. IS. Allen and a jury, at September Term, 1903, of the Superior Court of Guilford County. Erom a judgment for the defendant the plaintiff appealed.

ActioN by DeWitt Bowers against the Western Union Telegraph Company, beard by Judge G. M. Goohe and a jury, at January Term, 1904, of the Superior Court of Dueham; County. Erom a judgment for the plaintiff the defendant appealed.

<p>1. INTERSTATE COMMERCE — Licenses—Sales—Const. U. 8., Art. I, sec. 8 — Acts 1908, oh. 21/7.</p> <p>The license tax imposed on every itinerant person peddling ranges is a violation of the constitution of the United States to the extent of sales by sample of goods manufactured in another state, shipped into this state and delivered in their original packages.</p> <p>2. PEDDLERS — Hawlcers—Licenses.</p> <p>Where ranges are manufactured in one state and sold by sample in another, neither the person exhibiting the sample nor those making delivery thereof in the original packages are peddlers.</p>

AotioN by L. H. Beck against B. B. Meroney and others, beard by Judge W. A. Hoke and a jury, at November Term, 1903, of the Superior Court of Cherokee County. Erom a judgment for the plaintiff the defendant appealed.

ActioN by J. L. Currie and others against the Ealeigh and Augusta Air Line Eailroad Company, heard by Judge O. M. Goolce and a jury, at September Term, 1903, of the Superior Court of Moore County. Erom a judgment for the plaintiff the defendant appealed.

ActioN by J. D. Davis against tbe town of Fremont, beard by Judge W. R. Allen, at May Term, 1904, of tbe Superior Court of WayNE County. From a judgment for tbe defendant tbe plaintiff appealed.

<p>WITNESSES — Costs—Trial—The Code, seo. 1370.</p> <p>Though a witness can prove his attendance against the party who subpoenas him, such attendance cannot be taxed as costs against the opposite party in case he loses, unless the witness was examined at the trial or was tendered to such opposite party.</p>

ActioN by Roger Oritcber against tlie Porter-McNeal Company and others, heard by Judge G. 8. Ferguson and a jury, at September Term, 1903, of the Superior Court of Mastín County.

<p>1. MUNICIPAL CORPORATIONS — Parties — Contracts—Water Companies.</p> <p>Where a water company contracts with a town to furnish water at a certain pressure for the purpose of extinguishing fires, a citizen injured by a failure of the company to furnish the water as contracted may recover in his own name for the injury.</p> <p>2. MUNICIPAL CORPORATIONS — Contracts—Water Companies.</p> <p>Under a contract with a water company to supply water for extinguishing fires, requiring that it shall provide pressure on four minutes’ notice to throw ten streams at a certain height, a property owner, suing for damages for failure to furnish water for the extinguishment of a fire, need not show that notice was given the company, as such provision was for an extraordinary pressure to show the capacity of the plant.</p>

ActioN by the National Bank of Maryland against J. B. Hollingsworth and others, heard by Judge W. A. Iloke and a jury, at March Term, 1903, of the Superior Oourt of BuNcombe County. On and prior to the 5th day of September, 1895, C. L. Cottrell, A. S. Watkins and W. S. Robertson, of Richmond, Va., under the firm name of Cottrell, Watkins & Co., conducted a hardware business in the city of Richmond.

<p>ActioN by W. B. Eekhout against O. W. Oole, heard by Judge TF. A. HoTce and a. jury, at November Term, 1903, of the Superior Court of Cheeoicee County.</p> <p>The plaintiff prosecutes this action for the recovery of five hundred dollars, alleged to have been “advanced and loaned” to defendant’s intestate, A. G. Kinsey, on November 4, 1901. The plaintiff averred a demand and refusal to pay. Defendant denied each of the allegations of the complaint, except the demand and refusal to pay, which he admitted. By way of further defense and counter claim he averred that on July 21, 1901, the plaintiff entered into a contract with the defendant’s intestate, by which it was agreed that said Kinsey should secure control of at least a majority of all the stock of the Notla Consolidated Marble, Iron and Talc Company, to be sold to the plaintiff for $5.80 per share. Said stock was to be deposited in escrow in the Bank of Murphy, provided a certain contract of same date between the stockholders of said company and said Eeklmit, in regard to the sale of their holdings in said company, be entered into. The agreement contained the following provision: “And in order to show good faith, said W. B. Eekhout has deposited five hundred dollars in the Bank of Murphy, to be forfeited to the said A. G. Kinsey, or assign, if I, the said ~W. B. Eekhout, fail to comply with the contract referred to. In the event the said A. G. Kinsey fails to get a majority of stock subscribed to said contract of even date, said amount of five hundred dollars shall be subject to the order of W. B. Eekhout by August 15, 1901, and shall not be forfeited in any event if contract of even date be carried out.”</p> <p>Exhibit A attached to the answer is a contract entered into between W. B. Eekhout and certain shareholders of said Iron and Talc Company, the purport of which is that the . shareholders agreed to sell their stock to said Eekhout upon certain terms and conditions fully set out herein. The time fixed for performance of said contract is August 1, 1901. The defendant alleged that his intestate, pursuant to said contract, procured at great outlay and expense a majority of said stock and deposited the same in the Bank of Murphy for said Eekhout. That said Eekhout failed in every respect and in every particular to comply with his contract. That by reason of such failure said Eekhout became indebted to the defendant’s intestate in the sum of five hundred dollars. The plaintiff, replying to the new matter and counter claim, denied each and every allegation in regard thereto.</p> <p>The Court, without objection, submitted the following-issues to the jury: “1. Is defendant indebted to plaintiff; and if so, how much? 2. Is plaintiff indebted to defendant on counter claim; and if so, how much?”</p> <p>Plaintiff introduced Ben Posey, who testified to the handwriting of A. G. Kinsey and his signature to the receipt, which was in the following words:</p> <p>“Murphy, N. C., 4 Nov., 1901.</p> <p>“Received of W. B. Eekhout the sum of five hundred dollars, being the money lodged in the Bank of Murphy in escrow with a certain contract between the said Eekhout and myself and now withdrawn by mutual consent.</p> <p>(Signed) “A. G. KiNsey.”</p> <p>The plaintiff thereupon testified that he deposited five hundred dollars in the bank and that he drew the same out November 4, 1901. lie admitted the execution of the contract of July 27, 1901, and the writing of certain letters put in evidence. Mr. Posey was recalled and testified that he was attorney for A. G. Kinsey on November 4, 1901; that Judge Eerguson and himself had appeared as counsel for him in a suit between Kinsey and Emerson. That the suit was concluded and Kinsey wished to employ them in another suit with one Oliver Kinsey. That witness told Kinsey that they wished payment of their fees. Kinsey replied.that lie had no money at that time, when witness insisted on payment of fees for himself and Judge Ferguson. Counsel asked witness what Kinsey said to him about borrowing the money from Eekhout. Defendant’s counsel objected on the ground that witness, being at that time Kinsey’s attorney, could not testify to a transaction between them. Objection overruled, defendant excepted. Upon the Court’s announcing its ruling, the counsel for plaintiff stated that he had no further question to ask witness and told him to stand aside. “The Court perceiving that no answer had been made to the question, and thinking this was an inadvertence of counsel, and moreover desiring to have the facts about the matter before the jury, asked the witness what Kinsey did say about the money — about borrowing the $500 fee. Counsel for defendant objected on same ground, that it was a transaction between attorney and client, and second, because counsel for plaintiff having directed witness to stand aside, the Court had no right to interpose and request an answer from witness. Objection overruled and defendant again excepted. The witness then stated that when he told Kinsey he must have his fee of $500 Kinsey stepped out, remained awhile and then came back in the room and said that he had gotten the money; that he and Eekhout had agreed to withdraw from the bank the $500 on deposit and Eekhout had agreed to lend it to him. The next morning Kinsey came in and said that he had arranged the matter with Eekhout; that the money had been withdrawn by mutual consent and put in the bank to his (Kinsey’s) own credit and subject to his check, and Kinsey then gave witness his check for $250, also drew a check for Ferguson for $250, the amount of attorney’s fees, and the bank paid them. Plaintiff rested.</p> <p>Defendant introduced contracts herein referred to, a letter from Eekhout to Kenyon, cashier of bank, enclosing agreement between Kinsey and himself and check for $500; also stockholder’s contract, “Exhibit A.”</p> <p>Plaintiff then introduced J. H. Carter, vice-president of the bank, who testified that he had a package containing certificates of stock of the Iron and Talc Company, “Exhibit 209.” That the endorsments upon the envelopes were made by himself, except certain words which are not material. Defendant then introduced the envelope containing the following endorsement: “This envelope contains the following shares of stock of the Notla Cons. M. I. and Talc Co., to-wit.” (Then follows a list of the certificates, aggregating 3,721 shares, deposited with Bank of Murphy subject to contract between stockholders and W. B. Eekhout, dated July 17, 1901). It .was admitted that the envelopes contained the stock -which constituted a majority of the stock issued by said company. The defendant asked the Court to charge the jury that there is no evidence that the money paid Mr. Posey is the money deposited with Eekhout under said agreement. 2d. That the jury must be satisfied that the money received by Mr. Posey was a part of the identical $500 deposited by Eekhout. 3d. That there is no evidence of any abandonment of the forfeiture feature of the contract. All of said prayers were denied, and the Court, in part, charged the jury that plaintiff and A. G. Kinsey, the intestate of the defendant, entered into a contract that Kinsey was to procure for Eekhout a majority of stock in the Marble Company and Eekhout was to pay for it $5.80 per share. To show good faith in the matter, Eekhout put in the bank $500 as a forfeit in case of failure on his part to comply with his offer. That if the evidence- was believed, Kinsey did procure the stock and Eekhout had failed to take the stock; and if the money had remained in the bank under the original agreement, or if a forfeiture to that amount continued to be a part of the stipulation, then there was nothing due from defendant to plaintiff; if, however, Kinsey and Eekhout mutually contracted and agreed to withdraw the money from the bank, and the forfeiture should no longer be a part of the stipulation, and after drawing out the money Eekhout lent the money to Kinsey and same had never been paid, then the defendant was indebted to plaintiff in the sum of $500, with interest thereon from time same had been demanded, and nothing would-be due on counter claim. The Court here stated the evidence and the arguments of counsel pertinent to the issues. The jury returned a verdict and answered the first issue “Yes, $500 with interest from date of demand, August 15, 1902,” and had not answered the second issue. The Court told the jury that if such was their finding of fact and verdict on the first issue, that it should answer the next issue “No.” If they believed the testimony there was nothing due on counter claim, and they would answer the second issue “No.” The jury so answered the second issue. Defendant objected and excepted.</p> <p>From a judgment on the verdict the defendant appealed..</p>

ActioN by G. R. Westfeldt and others against W. S. Adams and others, beard by Judge W. A. Hoke and a jury, at Rail Term, 1903, of the Superior Court of Haywood County. From a judgment for the plaintiffs, the defendants appealed.

ActioN by R. N. ITarrill against tbe South Carolina and Georgia Extension Railroad Company, beard by Judge B. F. Long and a jury, at September Term, 1901, of tbe Superior Court of Rutherford County. Eróm a judgment for tbe plaintiff tbe defendant appealed.

ActioN by S. L. Hood and wife against the Western Union Telegraph Company, heard by Judge T. A. McNeill at March Term, 1904, of the Superior Court of MeceleN-bueg County. From a judgment for the defendant the plaintiffs appealed.

ActioN by W. H. Osborn against M. T. Leach and the News and Observer Publishing Company, beard by Judge O. H. Allen and a jury, at December Term, 1903, of the Superior Oourt of Guileoed County. From a judgment for the defendants the plaintiff appealed.

ActioN by E. S. Johnson and others against Morgan Duvall and others, heard by Judge E. B. J ones, at chambers, at Murphy, N. 0., April 9, 1904. The record in this case presents an appeal from an order made by his Honor Judge Jones, permitting the defendant J. B. Thomas to cut and remove timber from the lands in controversy pending the trial of the cause upon its merits.

ActioN by J. T. Kelly against W. J. Johnson and others, heard by Judge H. B. Bryan and a jury, at October Term, 1903, of the Superior Court of OuMbeklaNd County. From a judgment for the plaintiff the defendants appealed.

ActioN by J. T. Kelly against W. J. Johnson, beard by Judge II. R. Bryan and a jury, at October Term, 1903, of the Superior Court of Cumberland County.

ActioN by Henry Brinkley against the Southern Railroad Company, heard by Judge T. J. Shaw and a jury, at January (Special) Term, 1904, of the Superior Court of Bunios County. Erom a judgment for the defendant the plaintiff appealed.

AotioN by the Commissioners of Henderson County against J. Williams, Tax Collector, heard by Judge W. A. Solee and a jury, at November Term, 1902, of the Superior Court of Hendeeson County. Erom a judgment for the defendant the plaintiff appealed.

ActioN by T. E. Vann, administrator of Darius Edwards, against D. 3L Edwards, heard by Judge M. H. Justice and a jury.at Eall Term, 1903, of the Superior Court of HeRT-KORd County. Erom a judgment for the plaintiff the defendant appealed.

Action by M. L. Creech against the Wilmington Cotton Mills, heard by Judge George II. Brown and a jury, at October Term, 1903, of the Superior Court of New Hanover County. From a judgment for the plaintiff the defendant appealed.

<p>PetxtioN to rebear tbis case, reported/in 132 N. C., 510.</p>

ActioN by William Walker against the Carolina Central Railroad Company, beard by Judge W. H. Neal and a jury, at July Term, 1903, of the Superior Court of Meokxen-bueg County. This is an action on account of personal injuries received by the plaintiff through the negligence of the defendant. The evidence tends to prove that the plaintiff’s clothing caught fire from a defective sand-dryer which he was operating in tbe performance of bis ordinary duties.

ActiON by the J. L. Roper Lumber Company against the Elizabeth City Lumber Company, heard, by Judge M: H. Justice and a jury, at March Term, 1903, of the Superior Court of Camden County. From a judgment for the defendant the plaintiff appealed.