Volume 137 — North Carolina Reports

ActioN by the North Carolina Corporation Commission against the Atlantic Coast Line Railroad Company, heard by Judge George TI. Brown and a jury, at April Term, 1904, of the Superior Court of Waice County.

<p>1. AGENCY.</p> <p>If an agent is authorized to make a purchase, and no funds are advanced to him, he is by implication authorized to purchase on the credit of his principal.</p> <p>2. AGEN CY — O ontracts.</p> <p>Whére a contract between an agent and his principal provides that the agent can purchase lumber for cash, he cannot buy on credit.</p> <p>3. AGENCY.</p> <p>Where an agent authorized to buy only for cash buys on credit, and the principal uses the lumber purchased, he is not liable therefor unless he knew how it was bought.</p> <p>4. AGENCY — 'Principal and agent.</p> <p>It is only after a prima facie case of agency has been established that the acts and declarations of the agent become competent against his alleged principal.</p>

ActioN by H. L. Slaton against W. C. Webb, beard by Judge Frederick Moore and a jury, at April Term, 1904, of tbe Superior Court of Edgecombe County.

<p>Actiow by W. P. Smith and others against Taylor Johnson and another, heard by Judge W. H. Neal, at Spring Term, 1904, of the Superior Cburt of AlexaNdee. County.</p> <p>This is a special proceeding under chapter 22, Acts of 1893, to establish a boundary line, begun before the Clerk of the Superior Cburt of Alexander County. The plaintiffs alleged that They were the owners of a certain, tract of land fully described and that the defendants were the owners of adjoining land and that the dividing line between the land of the plaintiffs and defendants was in dispute, the plaintiffs setting out their- contention and asking that a survey be ordered and the true line established in accordance with the provisions of statute. The defendants deny the material allegations of the complaint and set forth the lines of the land claimed by them. They deny that plaintiffs own any land adjoining them. They also- allege that they and their ancestors have been in possession of the land claimed by them under known and visible boundaries, for more than fifty years. Upon the filing of the answer the Clerk directed a survey to be made showing the contentions of both parties. Pursuant to the order the surveyor duly filed his report, setting forth that he had surveyed the lines in controversy. He sets out in detail the several lines, showing by a map the contention of each party. The report is clearly and intelligently made. The Clerk thereupon heard the cause upon the report, hearing evidence and argument of counsel, and adjudged that the plaintiffs axe entitled to the line in controversy established as asked for in their petition, and on the report of the surveyor he adjudged the true line to be from the points set out. in his judgment as indicated on the map and ordered that the county surveyor go upon the lands, mark and establish the line as located by him. . From this judgment the defendants appealed. The case came on for trial in the Superior Court upon said appeals. The case on appeal states that “After reading the pleadings as set forth in the record, upon issues submitted as shown by the record, the plaintiffs introduced the following evidence.” Following this statement the evidence is set-out in full. Whereupon the following judgment was rendered: “At the conclusion of the plaintiffs’ evidence the defendants moved for a nonsuit against tire plaintiffs, for that in no aspect of the case on the plaintiffs’ evidence when the plaintiffs rested were plaintiffs entitled to tbe relief demanded. After argument on both sides upon this motion to nonsuit the plaintiffs, and the whole record, it is considered and adjudged by the Court that the motion of the defendants to nonsuit the plaintiffs is sustained. From this judgment the plaintiffs appealed.</p>

<p>ActxoN by J. A. Erwin against Z A. Morris, heard by Judge T. A. McNeiUat May Term, 1904, of the Superior Court of Oabmerus County. Erom an order vacating a restraining order the plaintiff appealed.</p>

<p>1. EVIDENCE — Corporations—Cancellation of Instruments.</p> <p>In an action to set aside a deed to a corporation for fraud and misrepresentation, evidence that fraud was practiced on the state in xirocuring the charter is competent as tending to sustain the charge of fraud.</p> <p>2. VENDOR AND PURCHASER — Evidence—Cancellation of Instruments — Fraud.</p> <p>In this action to set aside a deed to a corporation for fraud and misrepresentation the evidence is sufficient to be submitted to the jury.</p> <p>3. CANCELLATION OE INSTRUMENTS — Fraud—Vendor and Purchaser.</p> <p>Where a vendor is induced to sell land to a corporation upon the false representation that the purchaser would erect buildings thereon, and the purchaser fails to do so, the contract will be rescinded.</p> <p>4. VENDOR AND ■ PURCHASER — D amages — Contracts.</p> <p>Where a vendor sells land upon an agreement that the purchaser will erect buildings thereon, and the purchaser fails to do so, the vendor may recover the damages he sustains by breach of the contract, there being no fraud in the transaction.</p> <p>5. DEEDS — Cancellation of Instruments — Fraudulent Conveyances — • Fraud.</p> <p>Where plaintiff sued to rescind a sale of land for fraud, he was not entitled to have the property sold if he should fail to comply with the condition of a decree setting aside the sale on repayment by plaintiff of a part of the price received by him.</p>

ActxoN by tbe Board of Education of Iredell County against tbe Board of Commissioners of Iredell County and others, beard by Judge G. 3. Ferguson, at May Term, 1904, of the Superior Court of Iredell County. Erom a judgment for tbe defendants, tbe plaintiff appealed.

ActioN by J. W. Hutchins against the School Committee of the town of Durham and others, heard by Judge II. B. Bryan, at chambers, in Greensboro, N. O'., October 28, 1904. From a judgment for the defendant the plaintiff appealed.

ActioN by EL W. Oannady against the city of Durham, heard by Judge G. M. Cooke, at March Term, 1904, of the Superior Court of Díirham County. From a judgment for the defendant, the plaintiff appealed.

ActioN by M. A. Smith against J. G. Bruton and others, heard by Judge O. H. Allen, at April Term, 1904, of the Superior Court of MONTGOMERY County. From a judgment for. the defendants the plaintiff appealed.

ActioN by A. E. Earnhardt and wife against L. IT. Clement, executor of Tobias Kestler and others, heard by Judge M. II. Justice and a jury, at May Term, 1904, of the Superior Court of RowaN County. Erom a judgment for the plaintiffs the defendants appealed.

ActioN by J. M. Peoples, administrator of J. B. Peoples, against the North Carolina Railroad Company, heard by Judge T. A. McNeill and a jury, at June Term, 1904, of the Superior Court of Mecklenburg County. Erom a judgment for the plaintiff the defendant appealed.

ActioN by tbe Oameron-Barldey Company against the Thornton Light and Power Company. Petition by the plaintiff for certiorari to correct the case on appeal.

ActioN by E. P. Spencer and another against tbe Seaboard Air Line Eailway Company and another, heard by Judge George II. Brown, Jr., at February Term, 1904, of the Superior Court of Wake County. This is an appeal by the plaintiffs from a judgment upon a demurrer ore terms at. the October Term, 1904, of the Superior Court of Wake County.

ActioN by Rufus Avery against W. J. Oliver and tbe Southern Railway Company, heard by Judge M. H. Justice, at June Term, 1904, of the Superior Court of Bue.ee County. The plaintiff brought this action to recover damages for injuries to himself which he alleges were caused by the negligence of the defendants.

ActioN by S. 0. Quantz against the Southern Railway Company, beard by Judge W. B. Allen and a jury, at October Term, 1904, of the Superior Court of MecKxenbubg County. The plaintiff reached Charlotte on defendant’s train on the night of May . ., 1904, at about ten o’clock. The train stopped at the depot, the coach upon which defendant was being some distance below the end of the depot building.

ActioN by IT. B. Blalock & Company against W. D. Clark & Bros., beard by Judge O. U. Allen and a jury, at March Term, 1904, of the Superior Court of Stanly County. From a judgment for the plaintiff the defendant appealed.

AotxoN by L. N. Bond and others against J. W. Wilson and another, heard by Judge W. H. Neal and a jury, at October Term, 1904, of the Superior Court of Burne County. From a judgment for the defendants the plaintiffs appealed.

ActiON by Albert Lassiter against the Raleigb and Gas-ton Railroad Company and another, heard by Judge George H. Brown, at April Term, 1904, of the Superior Court of Wake Cbunty. From a judgment for the plaintiff the defendant appealed.

<p>ActioN by Marion Cobb and another against W. F. Clegg, heard by Judge II. B. Brycm, at chambers, at Greensboro, N. C., on September 19, 1904.</p> <p>The plaintiffs brought this aotion to obtain an injunction restraining the defendant from using a. room in the Hotel Guilford, which is situated in the city of Greensboro, as a cafe, restaurant or eating place contrary to the covenant contained in the lease of the said room to the defendant’s assignor. They allege that on or about the 11th day of April, 1904, they leased the room verbally to one Sam Chouris for one year to be used by him as a fruit, candy and ice-cream kitchen and for no other purpose, and that it was specially agreed at the time that the plaintiffs did not lease it for the purpose of being used as a cafe or restaurant because of the offensive odors caused by such use which were disagreeable to the guests of the hotel, it having once been used for that purpose and found to be objectionable, and the plaintiffs afterwards and before the lease to Sam Chouris having refused to lease it for use as a restaurant or cafe, though a much larger rent was offered than that proposed to be paid by Ohouris. It is further alleged that Ohouris agreed to accept the lease upon the terms and conditions just stated, and expressly covenanted that he would not use the room as a restaurant or cafe, but as a fruit, ice-cream and candy kitchen, which should be so conducted as not to emit therefrom any offensive odors and thereby render it objectionable to the hotel guests. That subsequently, on the 16th day of April, 1904, Chouris requested the plaintiffs to give him a written memorandum of the lease, stating merely its duration and the amount of rent to be paid, and giving as his reason for wanting this memorandum that there had been frequent changes in the management of the hotel and that he would need it for his protection; that plaintiffs for his accommodation complied with the request, the plaintiff dictating a letter for Chouris, which was afterwards written and signed by the plaintiffs and accepted by Chouris in writing over his signature. The letter described the premises leased with some particularity, and also certain changes to be made by Ohouris at his own expense in the arrangement of the room and the adjoining hall, but did not contain any reference to the alleged stipulation that it should not be used as a restaurant or cafe. It is then charged that the defendant, who is a business rival of the plaintiffs, well knowing, or having the means of knowledge, that said agreement had been made and refusing to investigate the matter, in July, 1904, bought the lease from Sam Chouris, who had leased the room only for a candy kitchen, or from his brother John Ohouris to whom a pretended sale had been made, and announced his purpose to establish a restaurant and cafe at the place, whereupon the plaintiffs immediately notified him of said covenant of Sam Chouris not to use it for such a purpose, and insisted that the assignment to him was void and that any use of the room as an eating place was dearly prohibited by the original lease, and he was forbidden to devote it to any such purpose; but that defendant, notwithstanding the notice and protest from plaintiffs, began at once' to make the necessary changes in the room to adapt it to said use as a restaurant, furnished and equipped it for that purpose and has since conducted, a restaurant in it to the great annoyance and irreparable damage of the plaintiffs. It is alleged in the second, third and fourth sections of the complaint that the agreement not to use the room as a restaurant, while contemporaneous with the making of the¡ lease was wholly independent of and collateral thereto, and that, even if, in any sense, an integral part of the contract, it was not intended to be inserted in the written memorandum or to be reduced to writing at all, but to remain in parol and in that way to- be a binding covenant or stipulation between the parties to the lease. Each of those sections of the complaint is denied by the defendant as follows: “The defendant has not sufficient information to form a belief as to the allegation contained in (said) paragraph of the complaint and therefore denies the same to be true.” There were other allegations made in the complaint and denied in the answer, but it is not necessary, in the view of the case taken by the Court, to set them forth. The defendant averred in his answer that he bought the lease from John Chouris, assignee of'Sam Chouris, for full value and without any notice of the alleged covenant, and that he has conducted a restaurant at the place in an orderly and cleanly manner and without any annoyance to the plaintiffs’ guests. Affidavits were filed by the respective parties in support of their allegations, but we need do no morel tiran state that a careful examination tends to show that, as the ease now stands, the proof preponderates decidedly in favor of plaintiffs’ contention that there was a covenant between Chouris and themselves to the effect stated above. Upon the complaint filed Judge Shaw granted an order to the defendant to show cause why an injunction should not issue as prayed for, and in. the meantime restrained the defendant from conducting a restaurant in the room contrary to the alleged covenant, and at the hearing of the motion for an injunction be^ fore Judge Brya/n,, upon the return of the order to show cause his Honor continued the injunction to the hearing, whereupon the defendant, having duly excepted, appealed to this Court.</p>

ActioN by DuM. Walker and another against tbe Southern Railway Company, beard by Judge G. M. Coolce, at May Term, 1904, of the Superior Court of Alamance County. This action was brought to recover the penalty for failure to transport freight, given by chapter 590, section 3, of the Acts of 1903.

AotioN by J. A. Pincbback against tbe Bessemer Mining and Manufacturing Company, beard by Judge T. A. McNeill and a jury, at May Term, 1904, of tbe Superior Court of G-astoN County. Tbe defendant company was on and prior to November 16, 1892, tbe owner of certain real estate, a portion of which bad been surveyed and laid off into building lots. A plat was made showing tbe location, number, etc., of each lot.

ActioN by J. A. Hall, against M. J. Misenheimer, heard by Judge M. U. Justice, at May Term, 1904, of the Superior Court of [Rowan County. This is an action by the vendor against the vendee for the specific performance of a contract to convey land or, stating it in another way, to recover the price agreed to be paid for the land.

ActioN by the city of Hickory against tbe Southern Railway Company, beard by Judge W. Id. Neal and a jury, at May Term, 1904, of the Superior Court of Catawba County.

ActioN by I. G. Harris against the B'alfour Quarry Company, beard by Judge Thomas J. Shaw at May Term, 1904, of tbe Superior Court of HeNdeesoN County. Erom a judgment for the defendant the plaintiff appealed.

<p>1. DEEDS — Conditions—Consideration.</p> <p>Where a deed conveys land in consideration of -the support of the grantor for life by the grantee, and provides that the land shall stand good for such support, and if the grantee fails to support the grantor the deed shall be void, the support is not a condition precedent, but a condition subsequent.</p> <p>2. ASSIGNMENTS — Reversions—Remainders—Deeds.</p> <p>The bare possibility of a reverter under a condition subsequent in a deed is not assignable.</p> <p>Clark, C. J., and Douglas, J., dissenting.</p>

ActioN by T. G-. Barker against tbe Sbutherñ Railway Company, beard by Judge, T. J. Shaw and a jury,’ at May Term, 1904, of tbe Superior Court of HbNdeeson County.

ActioN by G-. O. Goodwin against A. B. Claytor and the R. J. Reynolds Tobacco Company, garnishee, heard by Judge T. A. McNeill and a jury, at February Term, 1903, of the Superior Court of Forsyth County.

Actiow by W. W. Jones and others against the Nantahala Marble and Talc Company, heard by Judge B. F. Long and a jury, at June Term, 1904, of the Superior Court of BuNcombe County. From a judgment for the plaintiff, the defendant appealed.

ActioN by Ella B. Deaver against E. M. Deaver, beard, by Judge B. F. Long and a jury, at March Term, 1904, of the Superior Court of Buncombe County. This is an action upon a covenant against incumbrances contained in a deed for a tract of land from the defendant, E. M. Deaver, to his brother, A. E. Deaver, dated May 11, 1897. The deed also contained covenants of seisin and of warranty.

<p>1. INSTRUCTIONS — 'Negligence—Evidence.</p> <p>Where, in an action for injuries to a passenger in alighting from a train there was no evidence that plaintiff was commanded or invited by the porter to alight while the train was in motion, it was error to charge that if plaintiff attempted to jump from the train as it was moving into a station, and was injured, he could not recover, unless he “was commanded or invited by the porter to alight from the train while it was in motion.”</p> <p>2. INSTRUCTIONS — Negligence—Evidence.</p> <p>Where a train was standing still when the porter requested plaintiff to alight, an instruction that if the porter invited or commanded plaintiff to get off when the train was moving, and plaintiff, in obedience to such invitation, attempted to alight, and was injured, he was entitled to recover, was error.</p>

ActioN by N. J. Lance against A. C. Tainter and another, beard by Judge B. F. Long, at January Term, 1904, of tbe Superior Court of MadisoN County. From a judgment for tbe plaintiff tbe defendants appealed.

<p>ActioN by C. D. Turner against B. Ii. McKee, beard by Judge H. B. Bryan, at August Term, 1904, of the Superior Court of ORange County. From a judgment for the defendant the plaintiff appealed.</p>

ActioN by T. L. Francis against W. T. Reeves and others, heard by Judge E. B. Jones, and a jury, at May Term, 1904, of the Superior Court of Haywood County.

ActioN by H. G. Trotter against T. W. Angel, beard by Judge H. B. Jones, and a jury, at Spring Term, 1904, of tbe Superior Court of MacoN County. Erom a judgment for tbe plaintiff tbe defendant appealed.

ActioN by the General Eire Extinguisher Company, heard by Judge W. B. Allen and a jury, at July Term, 1904, of the Superior Court of Mecklenburg County.

<p>PetitioN to rehear this case, reported in 135 N. C., 105.</p>

<p>AotioN by T. H. Cobb against H. E. Rbea, beard by Judge B. F. Long, at October Term, 1904, of tbe Superior Court of Buncombe County. From a judgment for tbe plaintiff tbe defendant appealed.</p>

<p>ActioN by O. B. Coward against tbe Commissioners of Jackson County, beard by Judge G. S. Ferguson, at January Term, 1904, of tbe Superior Court of Jackson County. From a judgment for the plaintiff tbe defendants appealed.</p>

ActioN by S. 0. Satterthwaite against Charles Goodyear and others, heard by Judge E. B. Jones, and a jury, at February Term, 1904, of the Superior Court of ITaywood County. Erom a judgment for the plaintiff the defendants appealed.

ActioN by T. T. Stalcup against W. E. Stalcup and others, beard by Judge B. F. Long, at August Term, 1904, of tbe Superior Court of Cherokee County. From a judgment for the defendants tbe plaintiff appealed.

<p>APPEAL — Dismissal—Rules of Supreme Court, 5, 88, 34, 17.</p> <p>Though an appeal is not docketed seven days before the call of the district to which it belongs, if the appellee fails to docket a certificate and move to dismiss, the appeal will not be dismissed.</p>

ActioN by tbe Board of Education of Macon County against the Board of County Commissioners of Macon County, heard by Judge G. 8. Ferguson, at Eall Term, 1904, of the Superior Court of Macon County. The plaintiff Board of Education in its complaint alleges that the defendant Board of Commissioners at their regular meeting on the first Monday in June, 1904, levied a tax of $1.58 on each taxable poll in the county for school purposes and thirty cents for the support of the poor.

ActioN by tbe Babcock Printing Press Manufacturing Company against W. M. Herbert, beard by Judge Q. S. Ferguson and a jury, at March Term, 1904, of tbe Superior Court of Lenoir County. From a judgment for tbe defendant tbe plaintiff appealed.

AgtioN by John W. Monk and another against the city of 'Wilmington, beard by Judge M. U. Justice and a jury, at April Term, 1901, of the Superior Court of New HaN-over County. Erom a judgment for the plaintiffs the defendant appealed.

ActioN by the Suffolk and Carolina Railway Company against the West End Land and Improvement Company, heard by Judge W. A. Holce and a jury, at January (Special) Term, 1904, of the Superior Court of PasquotaNK County. This is a special proceeding to condemn a right of way for railroad purposes through certain lands owned by the defendant.

ActioN by R. A. Jones against the American Warehouse Company, heard by Judge W. B. Allen and a jury, at March Term, 1904, of the Superior Court of Eoesytii County. The plaintiff alleges that he was in the employment of the defendant company in its finishing mill near the town of Spray, N. 0.

ActioN by Joseph Whisenhant against the Southern Railroad Company, heard by Judge Walter II. Neal and a jury, at October Term, 1904, of fclio Superior Court of Bubke County. From a judgment for the defendant the plaintiff appealed.

<p>GUARDIAN AND WARD — Bonds—Penalty—The Code, see. J57J/ — • Svreiyslvip.</p> <p>A guardian bond is not binding on the sureties thereto -«’here it did not state the amount of the penalty at the.time it was signed and they did not afterwards authorize any one to insert the amount.</p> <p>Clark, C. J., and Douglas, J., dissenting.</p>

AotioN by M. II. Holland against the Seaboard Air Line Railway Company, heard by Judge H. B. Bryan and a jury, at May Term, 1904, of the Superior Court of Moore County. Erom a judgment for the plaintiff the defendant appealed.

<p>ActioN by Gr. H. Lewark and others against the Norfolk and Southern Railroad Company, heard by Judge E. B. Jones and a jury, at the Tall Term, 1904, of the Superior Court of CueeitucK County.</p> <p>Erom a judgment in favor of the plaintiffs for less than the relief demanded, they appealed.</p>

ActioN of State on relation of W. H. Bray against George W. Williams and others, heard by Judge E. B. Jones and a jury, at Eall Term, 1904, of the Superior Court of CuRRi-tucK County. This action was instituted for the recovery of $12,800 alleged to be due the plaintiff by the defendant, register of deeds of Currituck County, by reason of his failure to comply with the provisions of sections 1818 and 1819 of The Code.

Action by Matilda Brewster against Elizabeth City, heard by Judge E. B. Jones and a jury, at the September Term of the Superior Court of PasquotaNK County. From a judgment for the defendant, the plaintiff appealed.

ActioN by A. J. Ward against John L. Gay, heard by Judge E. B. Jones, and a jury, at Fall Term, 1904, of the Superior Court of Gates County.

ActioN by E. E. Perry, guardian, against tbe Greenwich Insurance Company, heard by Judge Fred. Moore and a jury, at June Term, 1904, of the Superior Court of Halifax County. From a judgment for the plaintiff, the defendant appealed.

ActioN by J. C. Vinson against M. J. Elnigbt, beard by Judge W. A. Hclce and a jury, at October Term, 1904, of tbe Superior Court of Hertfoed County.

<p>Actioh by II. B. Furgerson against James II. Twisclale and J. IT. Eenner, beard before Judge James L. Webb at November Term, 1904, of the Superior Court of Halifax County. From a judgment in favor of plaintiff, the defendant Fenner appealed.</p>

ActioN by Lee Tayloe against C. W. Parker, beard by Judge W. A. Uohe and a jury, at tbe Eall Term, 1904, of tbe Superior Court of Hertford County. Erom a judgment in favor of plaintiff for less tban tbe sum demanded, be appealed.

ActioN by Alice Jones and others against J. L. Wooten, administrator d. b. n. of Travis E. Hooker and others, heard by Judge WV B. Gouncil at December Term, 1904, of the Superior Court of Gkeene County. Erom an order of reference, defendant Wooten appealed.

ActioN by Zenia A. Gaskins and others against Victoria Allen, heard by Judge W. B. Council and a jury, at the Eall Term, 1904, of the Superior Court of Pamlico County. This action was brought to recover a tract of land. The-following issue was submitted to tbe jury: “Is the plaintiff Zenia Gaskins the owner in fee and entitled tó the immediate possession of the land described in the complaint ? Ans. ‘Yes.’ ” Erom the judgment rendered, the defendant appealed.

T-bis is a petition filed by plaintiff to rehear the above-entitled ease which was decided at February Term, 1904, and is reported in 135 N. C., 744. The action was brought to recover damages for cutting timber on land which plaintiff alleges was owned by it at the time the trespass was committed by the defendant, and to which it claimed ownership by virtue of a grant to Weeks and Valentine and mesne conveyances by which it acquired the title so granted and conveyed to them.

ActioN by Eugene Ealkner against Pilcber & Co. and American National Bank, beard, by Judge T. J. Shaw and a jury at October Term, 1904, of tbe Superior Court of VaNCE County. Erom a judgment in favor of tbe defendant bank, plaintiff appealed.

<p>Trust — Execution of Power of Appointment — Deed—Husband as Trustee.</p> <p>1. Where a son executed a deed in fee-simple to his father in trust for the son’s wife during her life, and to convey said property to such persons and for such estate as said wife should appoint under her hand and seal, and where the trustee (father) died leaving said son as his only heir, a deed in fee-simple with warranty executed for value thereafter by the son and his wife, conveyed a good title in fee to their grantee, though the deed did not refer to the power.</p> <p>2. Where a deed can have no efficacy except by reference to a power, and the deed has been executed substantially as provided in the instrument creating the power, the estate will pass although the power is not referred to in the deed. But if the donee of the power has any independent estate and makes a deed, the terms of which will be satisfied by such independent estate, it will be presumed that the donee intended to convey his independent estate only.</p> <p>3. A husband may be trustee for his wife.</p>

ActioN by H. Gr. AVilliams & Co. against J. R. Harris, sheriff, heard by Judge Fred. Moore and a jury at the April Term, 1904, of the Superior Court of Edgecombe County. Erom a judgment for defendant, the plaintiff appealed.

<p>ActioN by N. B. Dawson against I. L. Thigpen and wife, heard by Judge Fred. Moore and a jury, at Spring Term, 1904, of the Superior Oonrt of Edgecombe County.</p> <p>The plaintiff N. B. Dawson instituted this action on February 12, 1902, against the defendants Thigpen and wife for the recovery of four mules, one mare, carts, etc., and all crops raised by defendants during the year 1901. At the time of issuing the summons the plaintiff obtained an order for the immediate delivery of the property. Defendants executed an undertaking pursuant to the statute, retaining possession thereof. Defendants Thigpen and wife filed an answer denying the plaintiff’s right of action and alleging that the indebtedness for which the plaintiff’s mortgage was executed had been paid, except a small sum which was tendered in full satisfaction.</p> <p>G. A. Staneil filed an application to interplead in said action, setting forth that the defendants were indebted to him in the sum of $550, which indebtedness was secured by mortgage registered on the 15th day of March, 1900, on the mules and other personal property claimed in plaintiff’s complaint and seized by him as aforesaid. No formal order was made permitting said Staneil to interplead, but plaintiff filed an answer to his affidavit, denying his right to the property.</p> <p>L. E. McDuffie filed an affidavit as a basis for the application to interplead, setting forth that she was the owner of the property claimed by the plaintiff, by virtue of crop lien and chattel mortgage recorded February 2, 1901. An order was duly made making her party defendant and permitting her to file an answer setting up any right or title she might have to the property in controversy. She thereupon filed her interplea alleging that she was the owner of the property described in the complaint by virtue of two crop liens and chattel mortgages executed by defendants Thig-pen. and wife, one recorded January 27, 1900, and the other February 2, 1901, and that there was due her on account of the indebtedness secured therein the sum of $760. The plaintiff filed an answer to her interplea, denying that she was entitled to the property and further alleging that the mortgage of January 27, 1900, had been fully discharged and that in respect to the mortgage of February 2, 1901, that said mortgage was filed for registration on the 2d February, 1901, but was withdrawn from the office of the register of deeds by the interpleader and was not returned to said office until February 2, 1902, when it was actually recorded. That plaintiff’s mortgage was recorded May 3, 1901.</p> <p>The case on appeal states “when the case Avas called for trial, the plaintiff caused the folloAving entry to be made in the record: ‘The plaintiff, N. B. DaAvson, comes into court and states that he has been settled with for the amount of his claim upon the agreement of the original defendants to pay the cost and thereupon prays the Court for a nonsuit of the action so far as he is concerned. Thereupon the inter-pleader, Mrs. L. E. McDuffie, comes into court and applies to the Court for leave to amend her pleading/ ” by alleging that since last continuance, she has learned that the plaintiff in this action received into his possession before the commencement of this action a large amount of the crops grown on the land of the defendant Thigpen, described in the mortgage and lien held by her. That said crops were not taken by the sheriff pursuant to the process in this action. That the plaintiff should account to her for the value of the said property and crops so received. Thereupon the following entry is made: “The Court in its discretion would permit the interpleader to file the amendment to her pleadings as above requested; but believing the Court has no power to allow such .amendment, after the announcement made by the plaintiff, declines to allow the amendment to be made for want of power, to which ruling the interpleader Mrs. McDuffie excepts.” The Court thereupon submitted the following issues:</p> <p>“1. Is the interpleader Mrs. L. E. McDuffie the owner, by virtue of the crop lien and chattel mortgage introduced, of the crops in controversy ?” Ans. “Yes.”</p> <p>“2. What was the value of said crops at the time of the seizure?” Ans. “$189:25.”</p> <p>“3. Is the interpleader Mrs. L. E. McDuffie the owner, by virtue of the crop liens and chattel mortgages introduced by her, of the personal property in controversy, or any part thereof, and if only a part, what part?” Ans. “Yes, of the personal property, except the hoes, the ham§s and the weeder; but the mules and mare are subject to G. A. Stan-cil’s mortgage.”</p> <p>“4. What was the value of said personal property at the time of the seizure?” Ans. “The value of the mules and mare is $335, and the value of the other property is $54.63.”</p> <p>“5. Are the defendants indebted to the interpleader Mrs. McDuffie on account of the bond and crop lien and chattel mortgage introduced, and if so, in what sum?” Ans. “One thousand dollars and interest, as shown by the note, less $300, as credited on note.”</p> <p>“6. Is the interpleader G. A. Stancil the owner, by virtue of the chattel mortgage and crop lien introduced by him, of the personal property, in controversy, or any part thereof, and if only a part, what part?” Ans. “Yes, of the mules and mare.”</p> <p>“7. What was the value of such personal property at the date of the seizure?” Ans. “$335.”</p> <p>“8. Are the defendants.indebted to the interpleader G. A. Stancil on .account of the chattel mortgage and crop lien introduced, and if so, in what sum?” Ans. “Yes, $550, with interest from November 1,'1900.”</p> <p>“9. As between, the interpleaders, Mrs. L. E. McDuffie and G. A. Stancil, which has the first lien on the mules and mare in controversy ?” Ans. “G. A. Stancil.”</p> <p>Mrs. McDuffie introduced testimony tending to show the value of the property seized in this action. She also introduced a bond, dated January 19, 1901, for one thousand dollars for agricultural advances, subject to a credit of $300; also bond for $1,000, payable to her, dated January 11, 1900, the witness testifying that Mrs. McDuffie delivered the papers to her attorney, that she had them in her possession, that he was not and had never been her agent, that he did not know there was anything due on the note of 1900, that it was in the possession of the interpleader and not marked paid.</p> <p>The interpleader Stancil put in evidence the original mortgage and lien made to him by defendants, recorded March 5, 1900, for $750. He then introduced the defendant Thig-pen, who testified that he did not owe anything on the note of 1900 to Mrs. McDuffie; that the note of 1901 was given to renew the note of 1900; that he borrowed one thousand dollars from her in 1898 and executed a mortgage on his property and crops; that each year he gave a new note and mortgage; that in 1901 he gave the note to D. E. Cobb for Mrs. McDuffie, who was away from home. “We had no agreement. I prepared a new note and lien and gave it to Cobb for Mrs. McDuffie. After she came back I asked Cobb to get it for me. Mrs. McDuffie boarded at his house. The note of January, 1901, was given to take up a prior note. It was given to renew a debt due November 1, 1900.” To this testimony Mrs. McDuffie excepted. The witness further testified that he executed ,a lien and mortgage to G. A. Stancil, and that there was due on it a balance of $550; that Mrs. McDuffie did not furnish any money to make the crop; that each year he would go to her with a new note and mortgage, and that she was satisfied; that be kept the lien and paid her interest on it; that the team described in the mortgages of Mrs. McDuffie was the same as described in the mortgage to Stancil.</p> <p>The Court charged the jury that if they believed the evidence, and if there was a balance due on the Stancil debt, he w;as entitled to recover the possession of the property, and that they should answer the sixth issue “Yes” and the ninth issue “G. A. Stancil.” Mrs. McDuffie excepted. She assigns as error, first, the refusal of the Court to permit her to amend her plea, and permitting the plaintiff to take a non-suit ; second, the instruction to the jury that the mules, etc., were the property of Stancil. She appealed from the judgment rendered.</p>

ActioN by George W. Carraway and others against G. A. Stancill and others, heard by Judge W. B. Council, at November Term, 1904, of the Superior Court of Pitt County, upon motion by plaintiffs for judgment by default against certain defendants. From a refusal to grant the motion, the plaintiffs appealed.

<p>ActioN by George W. Meredith against the Seaboard Air Line Eailroad, beard by Judge W. B. Oouncil .and .a jury, at the November Term, 1904, of the Superior Oonrt of Cha-ven County.</p> <p>The plaintiff, on February 16, 1904, delivered to the defendant railway company at Charlotte, N. C., a quantity of household goods and furniture, to be shipped to New Bern, N. 0., and prepaid the freight thereon to the last-named point. On the 3d day of March, 1904, the goods, etc., were delivered to the plaintiff at New Bern, by the A. O. L. Eail-road Company in a damaged condition. Plaintiff testified, and for the purpose of disposing of this appeal his testimony is to be taken ,as true, that the furniture was carefully packed. That he told defendant’s agent at Charlotte that the goods consisted of his household furniture and clothing of his family, and he would like to have them shipped by first train. That he received the goods on the morning of March 3 — they having arrived on the afternoon of March 2. That Charlotte is 187 miles from Wilmington, the terminus of defendant’s road. That Wilming-ton is 90 miles from New Bern. That Wilmington is the starting point of the A. C. L. Eailroad. The plaintiff offered testimony in regard to the damage sustained. He proposed to show the condition of the goods upon their arrival at New Bern as compared with the condition when delivered to the defendant at Charlotte. Objection by defendant. The Court asked plaintiff’s counsel if he pro.posed to offer evidence tending to show that the goods were in a damaged condition when delivered by defendant to the A. O. L. Eailroad Company. Counsel replied that he had no evidence on the point, but relied on the length of time shipments were on defendant’s road to infer the injury which he wished to show occurred. The Court sustained the objection. Plaintiff excepted.</p> <p>Testimony was introduced. in regard to tbe damage sustained by plaintiff. Tbe record presents several exceptions based upon tbe exclusion of evidence of special damages. At tbe conclusion of tbe evidence, tbe defendant moved for judgment of nonsuit. Motion allowed. Plaintiff excepted and appealed.</p>

ActioN by Mark Disosway against A. M. Edwards, heard by Judge W. B. Council and a jury at October Term, 1904, of the Superior Court of OraveN County. From a judgment for the plaintiff, the defendant appealed.

<p>ActioN by T. B. King and others against A. S. J. Bynum ,and others, heard by Judge W. B. Council and a jury at the November Term, 1904, of the Superior Court of Pitt County:</p> <p>This was an action brought for the purpose of having the defendants declared trustees for the use and benefit of the plaintiffs, as their interest might appear, in the land described in the complaint and for an accounting for the rents and profits received from said land.</p> <p>The Court submitted the following issues tendered by the plaintiffs, to which the defendants excepted:</p> <p>1. Did the defendants purchase the land described in the complaint for the joint use and benefit of themselves and the plaintiffs, their co-tenants, as alleged in the complaint?</p> <p>2. What amount in rents and profits have the defendants received from said lands since the purchase thereof?</p> <p>The defendants tendered the following issue:</p> <p>1. Did the defendants purchase the lands in controversy under a parol agreement with the plaintiffs which was subsisting at the time of the sale, to hold said lands in trust for the plaintiffs and defendants, and to convey said lands to the plaintiffs upon their payment to the defendants the purchase price of said lands ?</p> <p>His Honor declined to submit the issue tendered by the defendants, to which the defendants excepted.</p> <p>The other facts and exceptions are stated in the opinion.</p>

ActioN bj H. S. Hancock against Western Union Telegraph Company, beard before Judge W. B. Council .and a jury at the November Term, 1904, of the Superior Court of OeaveN County. This was an action for damages on account of mental anguish.

ActioN by County Board of School Directors against the City of Asheville, heard by Judge M. R. Justice, at the September Term, 1904, of the Superior Court of BunCOMBE County. From a judgment in favor of the plaintiff, the defendant appealed.

<p>ActioN by T. J. Newsome against tbe Western Union Telegraph Company, beard by Judge Gr. 8. Ferguson and a jury, at tbe May Term, 1904, of tbe Superior Court of Sampson County. From a judgment in favor of tbe plaintiff, tbe defendant appealed.</p>

ActioN by S. IT. Scott- against Mutual Reserve Fund Life Association, heard by Judge W. B. Council at the November Term, 1904, of the Superior Court of Ceaven County, upon defendant’s motion in the cause to set aside the final judgment rendered at May Term, 1902.

ActioN by J. A. Dunn and others against W. B. Dunn, heard by Judge B. F. Long and a jury, at the November Term, 1904, of the Superior Court of Wake County.

<p>Arbitration by Infant — Judgment—Estoppel—Purchasers at Judicial Sale — Disaffirmance by Infant.</p> <p>1. A submission to arbitration by an infant with the consent of his counsel of record, or by his guardian ad Utem or next friend, is voidable and an award and judgment based thereon can be set aside.</p> <p>2. Where an action was brought by infants to have a life-estate declared forfeited for waste, and for the cancellation of certain deeds, and an arbitration therein reverses the object and the purpose of the action, and converts it into a proceeding to validate the deeds and to prevent a forfeiture, and it is apparent that the next friend made no attempt to protect the rights of the infants, a court of equity will not enforce such a proceeding or allow a judgment obtained therein to operate as an estoppel upon the infants.</p> <p>3. Purchasers at a judicial sale are not protected by the judgment, where it was apparent on the face of the record that the arbitration, award and judgment were all by consent in a case in which the infant parties consenting thereto, could not do so by themselves, by their next friend or by their attorneys.</p> <p>4. Where an infant disaffirms a transaction, equity will restore the property, but the person who thus loses it will be permitted to recover any money paid upon the faith of the validity of the transaction, provided the money is then in hand or the property into which it has been converted can be reached by a proceeding in rem.</p> <p>ON PETITION OP DEPENDANTS TO REHEAR..</p>

ActioN by M. J. Corbett against Nancy Clute and others, heard by Judge Q. S. Ferguson and a jury, at the February Term, 1904, of the Superior Court of Sampson County. This was an action to foreclose a mortgage. From a judgment for the defendants, the plaintiff appealed.

This was a PROCEEDING- as for contempt, beard before Judge Fred. Moore, at the October Term, 1904, of the Superior Court of New Hanover County. Erom the judgment rendered, respondent appealed.

<p>Abstracts of Grants — Evidence—Survey.</p> <p>1. Abstracts of grants in the usual form, duly certified as correct copies by the Secretary of State and recorded in the office of the register of deeds, are competent to show title out of the State.</p> <p>2. In order to aid the jury in locating the lines of a tract of land, it was competent to show by the chain-bearer at a survey made a year before the execution of the deed that lines were run and marked around the locus in quo.</p>

ActxoN by Amos E. Becton against Charles E. Dunn and others, heard by Judge Q. S. Ferguson, at the June Term, 1904, of the Superior Court of Lenoie County. The defendant Dunn made a motion to set aside a judgment by default final rendered at January (Special) Term, 1903. The motion was denied on the ground that the defendant had waited too long, to which ruling the defendant Dunn excepted and appealed.

ActioN by Orion Knitting Mills against United States Fidelity and Guaranty Company, beard by Judge G. 8. Ferguson at tbe June Term, 1904, of tbe Superior Court of Lenoir County. From a judgment for tbe plaintiff, botb parties appealed. DEFENDANT'S APPEAL. Tbe plaintiff sues to recover tbe sum of $353.18 for goods sold and delivered to one Leopold Goorman, tbe payment of wbicb it alleges was guaranteed by the defendant.

CONTROVERSY without action by R. A. Watts, Sr., Andrew J. Flanner, Frank Watts, Eugene Watts, Elorene Watts and Samuel Watts against W. IT. Griffin, heard by Judge Walter II. Neal at the January Term, 1905, of the Superior Court of Wayne County.

<p>“Authorize and Empower” Construed — Power of Legislature — M andamus.</p> <p>1. The terms “authorize and empower” used in an act conferring power upon a county, on the verge of bankruptcy, to issue bonds to fund its existing indebtedness incurred for necessary expenses and providing the only feasible method by which the financial affairs of the county can be placed on a sound basis, will be construed to be mandatory.</p> <p>2. The Legislature has power to pass an act, compelling a county to issue bonds to fund its existing indebtedness incurred for necessary expenses.</p> <p>3. Mandamus is the proper remedy against county commissioners who refuse to issue bonds, as required by an act of the Legislature.</p> <p>Clark, C. J., and Walker, J., dissent.</p> <p>PETITION OF PLAINTIFF TO REHEAR.</p>

ActioN of State on relation of James R. Rodwell against Oliver L. Rowland, heard bj Judge James L. Webb, at chambers, by consent, on December 22, 1904, upon a case agreed.

ActioN by National Cash Register Company against B. W. Townsend, trading as Townsend Grocery Company, heard by Judge Q-. W. War-d and a jury, at the December Term, 1904, of the Superior Court of Robeson County. This was a civil action brought by plaintiff against defendant, in which plaintiff seeks to recover of defendant the sum of $480, balance due under a contract for the purchase of a cash register sold and delivered by plaintiff to defendant.

AotioN by A. IT. Kornegay against C. B. Miller, beard by Judge Walter PL. Neal, at tbe January Term, 1905, of tbe Superior Court of WayNe County. James E. Kornegay at tbe time of bis death was seized in fee of a tract of land in tbe city of Goldsboro, containing about fifteen acres, of wbicb tbe land described in tbe complaint is a portion.

ActioN by N. J. Mayo against-Felix Staton and others, beard by Judge R. B. Peebles at the November Term, 1904, of the Superior Court of Edgecombe County. This was an action for the recovery of real estate, the decision of which was submitted to the Court upon a case agreed.

ActioN by Mary Stewart, administrator of S. T. Stewart, against Raleigb and Augusta Air Line Railroad Company and another, beard before Judge B. F. Long and a jury, at October Term, 1904, of tbe Superior Court of Wake County. From a judgment of nonsuit, plaintiff appealed.

State of North Carolina, on tbe relation of the- North Carolina Corporation Commission against the Merchants and Farmers Bank of Dunn, N. C., W. A. Stewart, receiver. In the matter of the claim of the Yoight Milling Company against the assets of the Merchants and Banners Bank of Dunn, N. C., now in the hands of W. A. Stewart, receiver, heard before Judge B. F. Long, at the November Term, 1904, of the Superior Court of HaeNett County.