Volume 140 — North Carolina Reports

ActioN by J. C. Wright, Trustee in Bankruptcy of C. L. Cotten, against J. F. Cotten, heard by Judge Henry R. Bryan and a jury, at the March -Term, 1905, of the Superior Court of Stanly. The following issues were submitted: 1. Was the payment by the bankrupt, C. L. Cotten,. of $3,000 to his father, John F. Cotten, made with the intent and purpose on the part of C. L. Cotten to hinder, delay or defraud his creditors or any of them ? Ans. Yes.' 2.

<p>PeoobediNG by J. H. Hill against Tbornton Dalton and others, brought before the Clerk of the Superior Court and heard upon appeal by Judge Olías. M. Ooolce and a jury, at the March Term, 1905, of the Superior Court of Eorsyth. Erom a judgment for the defendants, the plaintiff appealed.</p>

ActioN by O. W. Bunker against Adelaide Bunker and another, beard by Judge O. H. Allen, upon the original papers, at the August Term, 1904, of the Superior Court of Subey. BlaintifE, 0.

ActioN by Jarvis Lyles, Administrator, against Brannon Carbonating Co., for the alleged negligent killing of the plaintiff’s son, Charles Lyles, heard by Judge G. M. Goolce and a jury, at the October Term, 1905, of the Superior Court of Mecklenburg.

Stewart, widow of Frank P. Stewart, instituted before a justice pf the peace. Prom the finding of the commissioners there was an appeal to the Superior Court, and from the ruling of the clerk an appeal was taken to the judge at term, and heard by Judge Charles M. Cooke, at May Term, 1905, of the Superior Court of Stoebs.

Action by Southern Chemical Company against C. A. Lackey and another, pending in the Superior Court of' Alex-anbbR, and beard’ by Judge Jas. L. Webb by consent, at Lenoir, upon the report of the referee and exceptions thereto. Erom an order of re-reference, the plaintiff appealed.

Action by W. A. Lowery and others against Board of Graded School. Trustees of the Town of Kernersville and others, heard hy Judge Henry B. Bryan, at the, September Term, 1905, of the Superior Court of Foesyth.

<p>ActioN by E. S. Edwards, Administrator of Harry Pray-low, against the Carolina & Northwestern Railway Company, heard by Judge C. M. Cooke and a jury, at the September Term, 1905, of the Superior Court of Lincoln. From a judgment for the plaintiff,'the defendant appealed.</p>

ActioN by E. T. Wilson and others against Levi Cotton Mills, heard bj Judge Chas. M. Coolee and a jury, at the July Term, 1905, of the Superior Court of MecKLenbubg. From a judgment for the plaintiffs, the defendant appealed. Action for the price of cotton.

<p>Principal and Surety — Subrogation—Executors and Administrators — D evastavit.</p> <p>1. A surety company which has been called upon to pay a devastavit committed by its principal, an administrator, is entitled to be subrogated to the rights of the creditor against a party who received the money with knowledge of its wrongful appropriation and his rights are exactly those of the creditor.</p> <p>2. Where an administrator is also a distributee, he is entitled to pay the other distributees and to retain himself, at any time during the administration, the amount to which each is entitled. If he pay more or retains more than is due, he is liable personally and’ on his bond for the excess.</p> <p>3. While an administrator is allowed by statute two years within-which to settle-the estate, he should, when there are no debts or other exigiencies requiring the retention of the funds, pay* them to the distributees and they may within the two years maintain an action for them.</p> <p>4. Where an administrator committed a devastavit in February, a party who received the money with knowledge of its wrongful appropriation, can be compelled to answer to the extent of the devastavit, but he is not liable for any devastavit thereafter on the part of the administrator of which he had no knowledge.</p>

ActioN by State ex. rel. J. M. Pace and others against tbe City of Raleigh, pending in the Superior Court of Wake, and heard by Judge M. H. Justice, at Chambers at Raleigh, on the 27th of September, 1905, upon the pleadings and admissions of the parties. This was an application for a mandamus.

ActioN by Leroy Ball and another against Paul Paquin and wife, beard by Judge M. H. Justice and a jury, at the September Term, 1904, of the Superior Court of Buncombe.

ActioN by Dinah Caldwell against Life Insurance Co. of Virginia, beard by Judge M. II. Justice and a jury, at tbe March Term, 1905, of tbe Superior Court of Mbck-LBNBUR.G-. From a verdict for tbe plaintiff, the defendant appealed. Tbe plaintiff alleges that’ sometime during tbe year 1895 she was induced by tbe representation made to her by defendant’s agent, to take out policies upon her own life and tbe lives of her children, in defendant company.

ActioN by Tbos. J. Gattis against J. C. Kilgo and B. N. Duke, beard by Judge Fred Moore and a jury, at the June Special Term, 1905, of the Superior Court of Wake. From a judgment of nonsuit, the plaintiff appealed.

ActioN by Eacbel Eitzgerald against City of Concord, beard by Judge M. H. Justice and a jury, at the May Term, 1905, of the Superior Court of Cabaubus. There was evidence of the plaintiff tending to show that she was injured while walking along the streets of Concord, by reason of falling through a defective culvert. The plaintiff herself, on the principal question, testified as follows: “I live on South Crowell street.

ActioN by M. C. Ross against the Double Shoals Cotton Mills, heard by Judge M. H. Justice and a jury, at the Spring Term, 1905, of the Superior Court of Cleveland. From a judgment of nonsuit, the plaintiff appealed. This is an action for personal injury sustained by plaintiff while operating a lapper in defendant company’s mill.

<p>Railroads — Failure to Stop at Station — Right of Passenger— Reasonable Regulations — Damages Recoverable.</p> <p>1. The issue, “Did the defendant maliciously or wilfully, wantonly and rudely mistreat and humiliate the plaintiff while a passenger on its train?” is a pure issue of fact, and the finding of the jury is conclusive, the judge having refused to set the verdict aside.</p> <p>2^It is a reasonable regulation of the defendant that certain trains shall not stop at all stations, provided there are enough to serve the purposes of local travel.</p> <p>3. It is the duty of the defendant to have an agent at the gate to examine the tickets and allow no one to get upon a train which does not stop at his destination. Not having done this, but having received the plaintiff into the train, without objection, with a ticket calling for a regular station, as her destination, and nothing on its face to show it was not good on that train, and she not knowing that that train did not stop there, it was the duty of the defendant to stop the train at that point for her.</p> <p>4. On the question of damages, the court correctly instructed the jury that if the conductor maliciously or with wanton recklessness carried the plaintiff by her station, or if he maliciously or wantonly mistreated and humiliated her, they could assess punitive damages.</p> <p>5. Under section 1963 of The Code, when a passenger is carried by his station, he is entitled to damages, and this, though there is no bodily harm, or actual damages. If it is done recklessly or wilfully, he is entitled to punitive damages. Smith v. Railroad, 130 N. C., 304, overruled.</p>

<p>Ejectment — Trespass—Equitable Defense — Duty to Tender Issue — Evidence.</p> <p>1. In an action to recover lands and for damages for a trespass thereon, where the defendant denied the allegations of the complaint and alleged mutual mistake as a foundation for correcting the deed, but no issue was submitted by the court or tendered by the defendant upon this equitable defense, it was error to admit evidence of the alleged mistake.</p> <p>2. If the defendant relied upon the equitable matter set out in the answer, it was his duty to tender appropriate issues upon which the facts set out could be found.</p> <p>3. Where the defendant in his answer sets up a mistake in a deed under which he claims, but does not pray for a reformation thereof, yet the court may award such relief, if the allegations of the answer and the findings of the jury upon appropriate issues justify it.</p>

Aotion by Samuel Hayes against the Atlanta & Charlotte Air Line Railway Company, heard by Judge O. R. Allen and a jury, at the January Term, 1905, of the Superior Court of Mecklenburg. Plaintiff brought this action to recover damages for personal injuries alleged to have been caused by the negligence of defendant.

<p>ActioN by Chas. C. Oyster against the Iola Mining Company and M. L. Jones, pending in the Superior Court of Montgomeby, and heard by consent at Dallas, by Judge C. M. Coolce, upon a demurrer. From a judgment overruling the demurrer, the defendants appealed.</p>

ActioN by Dora Eller and Albert Eller, ber husband, against the Carolina & Northwestern Eailway Company, heard by Judge W. B. Oouncill and a jury, at the May Term, 1905, of the Superior Court of Catawba. On September 5, 1904, the feme plaintiff, then Dora Anderson, was a passenger on defendant’s train from Granite Falls to Hickory.

ActioN by James Eeid, Administrator of Lula Eeid, against the Atlanta & Charlotte Air Line Eailway Company, heard bj Judge O. M. Ooohe and a jury, at the October Term, 1905, of the Superior Court of Mecklenburg. This was an action for wrongfully and negligently causing the death of plaintiff’s intestate. The usual issues in such cases were submitted. .

ActioN by W. D. Hamrick against Western Union Telegraph Company, heard bj Judge T. A. McNeill and a jury, at the March Term, 1905, of the Superior Court of Euther-EORD. This was an action to recover damages for delay in the delivery of a telegram. From a judgment for the plaintiff, the defendant appealed.

Action by J. R. Brown, against the Southern Railway Company, beard by Judge M. H. Justice and a jury, at the July Term, 1905, of the Superior Court of McDowell. From a judgment for the plaintiff, the defendant appealed.

ActioN by E. A. Eurr against W. Reece Johnson, heard by Judge M. H. Justice and a jury, at the May Term, 1905, of the Superior CQurt of Cabarrus. From a judgment for the defendant, the plaintiff appealed.

ActioN by Nancy E. Sprinkle, by her Guardian, W. E. Sprinkle, and others, against J. M. Wellborn and T. J. Greenwood, beard by Judge Chas. M. Cooke and a jury, at the June Term, 1905, of the Superior Court of Wilkes.

ActioN by Clara Bettis against Wash Avery and others, beard by Judge W. E. Allen, upon a ease agreed, at the August Term, 1905, of the Superior Court of Burke. The plaintiff brought this action to recover the tract of land containing 21% acres described in the pleadings, and it was heard upon the following case agreed: 1. Matilda Greenlee, who died before 1861, was the mother of Adam Bettis and Clarissa Greenlee. 2. Clarissa Greenlee was the mother of Austin Greenlee. 3.

AotioN by A. Crenshaw and Susan Crenshaw, his wife, against Asheville & Biltmore Street Railway & Transportation Co. and others, heard by Judge Fred Moore and a jury, at the March Term, 1905, of the Superior Court of BuNcoMbe. From a judgment for the feme plaintiff, the defendants appealed.

ActioN by Commissioners of Rutherford County against L. P. Erwin and others, to foreclose a tax certificate heard on exceptions to the report of a referee, by Judge W. R. Allen and a jury, at August Term, 1905, of Superior Court of Euti-ieRROKD. There was a judgment modifying and confirming the report, and on the report so modified, there was further judgment dismissing the action. Plaintiff excepted and appealed.

<p>Railroads — Expulsion—Punitive Damages.</p> <p>In an action against a railroad for an alleged wrongful ejection, to entitle a passenger to punitive damages, his expulsion from the train must be attended by sueli circumstances as tend to show rudeness, insult, aggravating circumstances calculated to humiliate him.</p>

<p>Railroads — Grossings—Negligence—Evidence.</p> <p>In an action against a railroad for damages for the alleged negligent killing of the plaintiff’s intestate at a crossing where there was evidence to show that an engine of the defendant was hacking at night toward a crossing near the depot and ran over and killed the intestate, who at the time was lawfully upon the track endeavoring to cross it going to his home; that the engine was running without lights or signal warnings and without any one stationed so as to keep a proper lookout, held, that these facts fix the defendant with the legal responsibility for intestate’s death.</p>

PROCEEDING by Thaddeus W. Stanaland and others against J. W. Rabón and others, heard by Judge G. 8. Ferguson, at the March Term, 1905, of the Superior Court of Brunswioe. The proceeding was commenced before the clerk to determine boundaries under the processioning act, Public Laws 1893, chap. 22.

<p>Ejectment — Issues—Pleadings—Judgment.</p> <p>1. An issue should be directed to the matter alleged on the one side and denied on the other. The judge may, in addition to the issue, submit questions to the jury pertinent to the matters in controversy, but he is not compelled to do so and his refusal is not reviewable.</p> <p>2. In an action for the recovery of land if the defendant wishes to disclaim as to any portion of the locus in quo and put in issue the title to only a specific portion, he should do so in his answer.</p> <p>3. In an action for the recovery of land the judgment must follow and conform to the verdict in designating the extent of the recovery, and must be rendered for the premises described in the complaint.</p>

ActioN by Mary W. Cooper, Administratrix of W. A. Cooper, v. North Carolina Railroad Co., to recover damages for alleged negligent killing of plaintiff’s intestate, heard by Judge E. B. Jones and a jury, at April Term, 1905, of the Superior Court of Caswell. The ordinary issues -in such actions were submitted.

ActioN by M. Millhiser and Company against E. L. Leath-erwood, heard by Judge Thos. J. Shaw and a jury, at the Spring Term, 1905, of the Superior Court of Swain. This action was brought to recover the sum of $647, which it is alleged the defendant received on a claim he held for collection as attorney for the plaintiffs, and which, upon demand, he has failed to pay over. This allegation is denied in the answer.

ActioN by State ex. r'el. North Carolina Corporation Commission, upon petition of the Eound Pine Lumber Co., against the Seaboard. Air Line Eailway, heard by Judge M. II. Justice and a jury, on appeal from order of the commission, at the September Term, 1905, of'the Superior Court of Wake. From a verdict and judgment thereon, the defendant appealed.

ActxoN by W. A. Eincannon and others against Ed. Sud-derth and wife, heard by Judge W. A. Allen and a jury, at the August Term, 1905, of the Superior Court of Bueke. Plaintiffs claim the locus in quo under deeds from their father, Isaac Eincannon, executed in 1881 for the purpose of making a division of his lands. They alleged that defendants had trespassed thereon. Defendants denied plaintiffs’ title.

ActioN for personal injuries caused by alleged negligence of defendant, heard by Judge, W. B. Gouncill and a jury, at May Term, 1905, of the Superior Court of Catawba. The ordinary issues were raised by the pleadings. There was evidence tending to show that the plaintiff was at the time of the injury engaged in superintending the con-* struetion of a union depot at Helena, Ga., for the defendant and. the Seaboard Air Line Railway Companies.

ActioN by J. II. McAden, Trustee, against John Palmer and others, heard by Judge G. S. Ferguson and a jury, at the August Term; 1905, of the Superior Court of CheeoKee. This was an action to recover damages for cutting timber on certain land claimed by the plaintiff. The jury found, among other facts, that the defendants, ‘Barnes, Williams and VanRoden, had wrongfully trespassed and asesssed the damage at $261.12. Erom the judgment rendered, the defendants appealed.

AotioN on an insiirance policy for an indemnity of $5 per week for 26 weeks, tried before Judge M. H. Justice, at the July Term, 1905, of the Superior Court of McDowell.

ActioN by Q. L. Rose against J. R. Davis and others, beard by Judge Q. S. Ferguson and a jury, at the Inly Term, 1905, of the Superior Court of SwaiN. Erom a judgment for the defendants, the plaintiff appealed. This is an action brought by the plaintiff under section 2319 of The Code, for the penalties mentioned therein.

ActxoN by H. E. Hyatt against S. A. DeHart, Tax Collector, and others, pending in the Superior Court of Swain, and heard by Judge Q-. S. Ferguson, at Chambers in Murphy, September 20, 1905. Erom an order dissolving the restraining order, the plaintiff appealed.

<p>Cherokee Lands — Terms of Entry — Payment—Forfeitures— Indefiniteness of Entry — Burden of Proof — Statute of Limitations.</p> <p>1. The maimer of entry, terms of payment, etc., of the “Cherokee Lands” are governed by the provisions of chapter 11 of The Code, and section 2766 of chapter 17, providing that the failure to pay the purchase money, 'within the time prescribed after entry, works a forfeiture, does not apply to the Cherokee Lands.</p> <p>2. The terms upon which the “Cherokee Lands,” when entered, revert to the State, are “in case of failure to pay the whole when due and the money cannot be obtained by judgment” on the bonds, and the enterer has a reasonable time within which to pay his bonds and assert his right.</p> <p>3. A status is established between the State and an enterer of the Cherokee Lands by which he becomes a purchaser; the enterer of other lands acquires a mere option to buy.</p> <p>4. Under chapter 11 of The Code, when one entered the “Cherokee Lands,” on December 11, 1879, and filed his bonds for the purchase money on February 20, 1880, and paid same December 1, 1884, and obtained grant on August 17, 1885, held, the entry had not lapsed.</p> <p>5. Forfeitures are not favored by the law and when incurred can only • be enforced in the manner pointed out in the contract to enforce them.</p> <p>6. The burden is upon the plaintiff to show that a prior entry was invalid for indefiniteness, for in the absence of any proof to the contrary, the court must assume that the entry and survey conformed to the statute.</p> <p>7. In an action by one who claims as enterer of “Cherokee Lands,” the cause of action is barred in ten years from the registration of the grant.</p>

ActioN by W. T. Whitaker against S. E. Cover and others, heard by Judge G. S. Ferguson and a jury, at the August Term, 1905, of the Superior Court of Cheroeee, upon the following case agreed: “W. T. Whitaker sold and conveyed to S. E. Cover et al a certain tract of land in Cherokee County, containing, as shown by State grant No. 3632, 640 acres, at the price of $3 per acre.

AotioN by Maggie Plemmons, Administratrix of B. M. Plemmons, against Southern Railway, heard by Judge T. A. McNeill and a jury, at the September-October Term, 1905, of the Superior Court of Buncombe. This is an action to recover damages for the alleged negligent killing of plaintiff’s intestate. The court submitted the following issues: “1. Is the plaintiff the duly qualified administratrix of B. M. Plemmons, deceased ? Answer. Yes. 2.

ActioN by J. P. Ledford against A. S. Emerson, pending in the Superior Court of Chbeokbb, and heard by Judge W. H. Neal, on October 2†, 1905, upon a motion to set aside an order of arrest and relieve the bail.

<p>ActioN by J. H. Moore against the First National Bank of Statesville and Geo. H. Brown, beard by Judge Jas. L. Webb and. a jury, at the February Term, 1905, of the Superior Court Of ALEXANDER.</p> <p>This was an .action for damages alleged to have been sustained by reason of suing out an attachment by defendant bank and George II. Brown, its cashier, against plaintiff’s property, wrongfully, maliciously and without probable cause. A demurrer to the plaintiff’s evidence was sustained by the court and the action dismissed. The facts developed upon plaintiff’s evidence, in so far as they are material to the decision of the appeal, are: The defendant bank is a banking association duly organized pursuant to the National Banking Laws and was, at and -before the date of the transactions set out in the complaint, engaged in the banking business in the city of Statesville. The defendant Brown was, at said dates, cashier of said bank, charged with the duties incident to his office. Blaintiff was, on the 5th day of June, 1903, and had been for some time prior thereto, indebted to defendant bank in the sum of five thousand, one hundred dollars — said ' indebtedness was evidenced by several notes executed at different dates during the year 1901, and two notes during 1902, some of said notes running thirty days and some ninety days. Interest had been paid from time to time. Several of them were overdue on June 5, 1903. The defendant bank had no security to the said indebtedness. The bank had, during the year 1903, frequently urged the payment of the notes, but no payment had been made on them. Plaintiff was in June, 1903, a resident of Liledoun, Alexander County. He was a physician, but was, at the date of the transactions referred to, engaged in operating a cotton mill, flour mill and farming, etc.,, conducting a store in connection with his mills. He owned June 5, 1903, a roller flour mill and corn mill at Hickory in Catawba County, known as the Allspaugh Mills, also the Allspaugh Farm of 281 acres, worth in all $8,000. He owned at Liledoun a cotton mill and other real estate, estimated to be worth $45,000. There was a mortgage on the Alexander property of about $2,500. He owned the Watts Farm of 350 acres, upon which there was a mortgage of $2,500 for the purchase money. According to plaintiffs estimate, his property was worth at a forced sale, $53,000, and his indebtedness was $20,000. He was involved in a divorce suit with his wife in which she was claiming alimony, and had filed a notice of Us pendens in the county' of Alexander. There was evidence tending to show that plaintiff owned property in Kentucky of considerable value. He had in his mill at Liledoun $10,000 or. $12,000 worth of “duck goods,” the product of his mill, which he had sold and for which he had received New York exchange. Prior to June, 1903, plaintiff had kept an account, depositing large sums of money, in defendant bank, but had ceased to do so during the month of April, 1903, after which time the deposits did not amount to much. He was on June 5, 1903, solvent.</p> <p>Plaintiff’s litigation with his wife was giving him anxiety and annoyance. Motion was pending for further alimony pendente lite, $4,000 having been allowed and paid. The reason assigned by plaintiff for ceasing to keep his account with defendant bank was the fact that the attorney for the bank had been employed by his wife in her suit with him and that he did not deem it safe to have his business known to 'them. On May 21, 1903, plaintiff sent to defendant Brown, cashier, a letter in which he stated that he felt he owed a duty to his creditors, he being one of them, to make a plain statement concerning his business and to afford him the means of realizing the amount of his debt in full. That he, Brown, had trusted him and he did not propose that he should lose a cent by reason of his confidence. That if he would take the prompt action as he, plaintiff, suggested, he would sustain no loss. That prior to two years before this, his business was on a firm basis and he was making money; that his obligations were met promptly and he looked forward with. hope to a successful business future. That, at that time, his wife, from whom he had separated several years before, had returned from California and instituted suit against him on groundless charges. That he had been harassed by motions for alimony pendente lite; had paid her $4,000 besides cost and attorney’s fees — that he had been unable to procure a trial of the case and had exhausted every effort to obtain a reasonable settlement; that he had no assurance when the cause would be tried. Meanwhile she was clamoring for more alimony and that costs and expenses were accumulating. That after July 1 another motion for alimony could be made and he had no doubt that it would be; that it might result in another heavy financial loss to him; that he had lost heavily in sums actually paid out; that he had not been able to give to his business the proper attention. That he was indebted to the amount of $20,000 and had property enough to make every obligation good, saying: “But with the continuance of this suit, its heavy demands upon my time and resources, its disturbing and harassing influence upon my mind, I fear that such will not be the case long.” He stated that he wished to protect his creditors while he had the means with which to do so. That he did not wish to enter bankruptcy, because he was not a bankrupt; if he left his creditors to sue, obtain judgment and levy execution and resort to other process the assets would be consumed in court, etc. He proceeded to make a proposition to convey his property to two trustees, one selected by himself and one by his creditors— both to give bond, etc., to sell and pay his creditors. He requests the defendant to act promptly in the matter signifying acceptance and taking the steps necessary to carry into effect his proposition. This letter was sent by plaintiff to his other creditors who were willing to accept his proposition. Sometime during the months of February and March, 1903, plaintiff sold some horses, mules and cattle — he sold other stock in May, and on the 18th day of said month sold bis stock of goods for $3,300, for which he received $2,000 cash and notes for balance — leased his store house for two years — sold his growing crop of cotton on hand and shut down his mill. On or about May 26, 1903, plaintiff left his home and went to the city of Cincinnati for the purpose of attending the sale of some property belonging to his children. ILe stated in Sunday school that he was going and would be away some two or three weeks. He caused to be sent to his nephew, Mr. Payne, in Cincinnati, from the proceeds of his property sold, about $8,000, which was deposited in bank to his, Payne’s, credit. This was not known to Brown on June 5, 1903. There was much testimony in regard to plaintiff’s property and his movements subsequent to the issuing of the attachment.</p> <p>Plaintiff introduced his son, Ernest Y. Moore, who testified that he saw defendant Brown at Taylorsville two days prior to the date of the attachment. He testified as follows in regard to conversation with defendant: “I came up on the train from Statesville — had been to Hickory; I got into a buggy; was about to drive away when I saw Mr. Brown. I ¿ad the buggy stopped — Mr. Brown spoke to me and shook hands with me, and made some remark — asked where my father was; told him that my father was out of town, and he made the remark that he wished to see me. I got out of the buggy and went back to the Campbell boarding house; Mr. Brown asked me again, I think, where my father was, and I told him he was in Cincinnati; he told me that a report had come to him of the sale of certain property; I told him that Mr. Heal could give him all the information regarding that property, and that he could see him at the mill. We secured a buggy and, at his request, drove to the mill, about three miles; on our way out we talked about the situation; he explained that the money had been loaned by the bank, and that he was very anxious about it; I told him that I realized that, and also that he need have no, anxiety concern-mg it; that we were immediately expecting a trial of the divorce proceedings then pending; that a special term of court had been ordered by the Governor in Catawba County for the purpose of trying this case, and it would come up in July — first of July, and that the case would then unquestionably be settled; explained to him that he had practically exhausted his credit on the property on account of these divorce proceedings, and that at the present time it was impossible for us to make payment of the notes then due or about to be due; he seemed to be very well satisfied with what I had said, and when he reached the mill he made inquiry concerning the insurance on the property; I told him my impression was it was insured for $40,000; we made search for the policies and found several, but all the policies which we were able to locate were old policies and had been cancelled; Mr. Brown seemed very anxious about it and wished to know definitely about it, and I told him that the only way I could find out was to write my father, which I promised to do and let him know immediately I heard; he then requested me to take him through the cotton mill; he examined the machinery thoroughly and made notes of some sort, and questioned me as to the price of it; I informed him that the mill originally cost between $40,000 and $50,000, including the machinery; we went entirely through the mill; examined the water power and the engine, and just as we stepped out the mill Mr. Brown said there is no question about this being a good mill; I took him through the roller mill; it cost between $3,500 and $4,000. I offered to take him up about one-half mile above the place to show him the shoal, and he said he did not care to go; we went back into the store; he' went and questioned Mr. Beal; I don’t know what he said to Mr. Beal; very shortly afterwards we drove-back to town. Briving back to Taylorsville he said to me,. Why did your father sell the property at Liledoun ? I went into this detailed statement, which might have been made some parts at other times; this was the substance of the statement I made to him at different times on that trip. I stated that for the past two or three years we have been harassed by divorce proceedings; motions for alimony have been made at eight or nine different times; at one time there was a judgment and an order from the Superior Court of this State for $4,000 to be paid in 90 days; an appeal was taken on that order; and there were other matters in the court; at least, my father was threatened with contempt proceedings and threatened with jail for failing to pay it, but the amount was paid; I stated the business here has been dull and all the running capital practically has been withdrawn from the mill to meet the expense of litigation; in addition to this he has boiight and paid for, to a great extent, the roller mill in Hickory; which also took a great part of his capital; that capital which I speak of was the running capital of the mill at Liledoun; I explained to him that the litigation had been protracted, but a special term of the court had been ordered, and we were expecting a trial in July and beyond all reasonable doubt a trial would be had; in addition to a trial we were expecting a further motion for alimony, and that the sale of the property had been for the exclusive purpose of obtaining money to meet the expenses of the litigation, and to pay any possible judgment for alimony, and to run his business which was then standing still for lack of funds; Mr. Brown seemed to be satisfied; he had previously stated that he had always been a good friend to this concern; I said that was true; he said that he was my father’s friend, and when he said he was he was, and he had no desire in the world to injure him; I told him I believed that; he told me that he knew the attorneys and the plaintiff in the divorce proceedings were doing everything in their power to ruin him, and if possible would ruin him, and in all the trouble that had preceded he had advanced the money with which to run the business, and had done it willingly; he said now he was anxious and wanted the money back — wanted the debt paid off; I told bim that the most earnest desire-we had was to pay every obligation we had; every move we made was to protect our creditors; that the sale of such personal property as had been sold was for the purpose of meeting all the requirements of the court in the matter then pending. After we reached Taylorsville I left him at the bank in conversation with Mr. McIntosh and Mr. Matheson; Mr. Brown was very much concerned because he could see no insurance on the property at Liledoun; I told him, however, that I would look into the matter at once and let him know as soon as I could; he said that he thought Dr. Moore should, for his own protection and the protection of his creditors, keep his property insured; $50,000 of property with not a cent of insurance on it; I may have stated again I would write to my father about it. While we were at Liledoun Mr. Brown again asked me where my father was; I told him he had gone to Cincinnati and was going to Columbus for a day or so; I said I would be very glad for him to write him about the matter; I took a piece of paper and wrote his address in Cincinnati and in Columbus, telling him I was not certain as to just which place he would be when his letter should arrive; I said if you write duplicate letters to him at these addresses they will be delivered in due course of mail, and gave him the addresses. I told him further, I will write to him and will let him know immediately I hear from him concerning the insurance; he said when will he be back? I said, if he is not on his way back he will be here the first of the week; he said, what is he gone for? I said, to look after some property belonging to us children in Cincinnati; he has an order of court authorizing a sale of this property and has gone for the purpose of trying to effect a sale; he urged me on the matter as to his return, and I repeatedly restated these facts. I questioned him as to what course he was about to pursue; he made a statement here in Taylorsville just outside tbe Bank of Alexander in the middle of the street just before he went to the train that he had no course in view; nothing to act upon; I said, whatever course you have in view don’t take any action until Monday; I said my father will certainly be here Monday; he said, he will certainly return Monday? I said he will undoubtedly return Monday; Mr. Brown smiled and said all right. He returned Monday; I don’t recall anything further.”</p> <p>On June 5, 1903, defendant bank instituted an action against plaintiff for the recovery of said indebtedness. For the purpose of obtaining a warrant of attachment, the defendant Brown made an affidavit setting forth the cause of action and averring that plaintiff had sold and disposed of the property described and was then offering for sale other valuable property, “all of which said defendant has done with intent, as affiant is informed and believes, to defraud his creditors.” That plaintiff had departed from the State with, as affiant is informed and believes, intent to defraud his creditors. A warrant of attachment was issued upon said affidavit and duly levied by the sheriff of said county upon plaintiff’s property on June 6, 1903. Plaintiff, through his counsel, gave notice on July 25, 1903, that he would move the court at a time and place named to dissolve the attachment. At the August Term, 1903, an order was made reciting the said motion and that “the defendant having averred in his answer his willingness and ability to pay off the indebtedness due plaintiff upon dissolution of the attachment, and having exhibited a certified check to the court payable to the plaintiff as evidence of his good faith, it is ordered that the said attachment be dissolved and thereupon said check delivered to the plaintiff.” Thereafter an order was made taxing defendant bank with the cost. There was evidence that plaintiff had advertised his property for sale. It is not clear whether defendant Brown had knowledge of this at the time he sued out the attachment. At the close of plaintiff’s evidence, defendant moved for judgment as upon nonsuit. Motion allowed. Plaintiff excepted and appealed.</p>

ActioN by S. J. May and wife against E. P. Getty and others, heard by Judge T. J. Shaw and a jury, at the Spring Term, 1905, of the Superior Court of Macon, on exceptions to the report of a referee. This action was brought to compel specific performance of a contract to convey land, made November 23, 1896, between the plaintiffs, S. J. May and wife, and the defendant, E. P. Getty.

ActioN for a mandamus by A. B. Fortune against Board of County Commissioners of Buncombe, pending in the Superior Court of Buncombe, and beard by Judge Fred Moore, by consent, at Chambers in Asheville, on August 14, 1905. The case was heard upon a case agreed which was as follows: 1.

ActioN by Mary Brown against W. T. Weaver Power Co., beard by Judge T. A. McNeill and a jury, at the February Term, 1905, of the Superior Court of Buncombe. Plaintiff alleged that she was the owner in fee of a tract of land lying on the Erencb Broad River in Buncombe County, a particular description of which is set forth. That she resided with her family on said land, cultivating a portion thereof.

<p>Action by Frank May against Gr. C. Loomis and C. N. Dotson, beard by Judge G. S. Ferguson and a jury, at the July Term, 1905, of the Superior Court of Haywood.</p> <p>The plaintiff declared on two notes, each for $750, bearing date December 13, 1902, due respectively nine and twelve months after date. The notes Were drawn by defendant Loomis to defendant Dotson and endorsed to plaintiff before maturity.</p> <p>The defendants .answered, admitting the execution and endorsement of the notes, and alleging that the same were executed in part payment of the purchase of a saw mill plant and the standing timber on two tracts of land situated in Haywood County, one of 250 and the other of 750 acres; that said sale was effected and the notes were procured by false and fraudulent representations on the part of the plaintiff and bis partner, one W. II. Cole, who were vendors in the sale, and setting up such fraud in bar of any liability on the notes. There was further answer setting up' the alleged fraud and deceit by way of counterclaim, which is in part as follows: 1. That on December 13, 1902, the defendant bought three million feet of merchantable hardwood timber from the plaintiff and W. II. Cole, trading under the firm name of May & Cole, at the rate of $1 per 1,000 feet, on a tract of land on Pigeon River, in Haywood County, and also at said date, in connection with the purchase of said timber, bought of the plaintiff and his said co-partner the steam saw mill, boilers and engine located on said premises, valued at $2,500, and likewise horses, mules and wagons, valued at $500. 2. That at the time of making said sale and pending negotiations for the same, the said May & Cole represented that this was a picked tract of timber land which the said W. H. Cole had specially selected out of a large tract of land belonging to Crary, Tonng & Co., and that they bad made two careful estimates of the merchantable hardwood timber thereon — one by W. H. Cole individually, and the other by May & Cole — resulting in 3,000,000 feet, and that they guaranteed that there was 3,000,000 feet of merchantable timber thereon — 1,000,000 feet of poplar, 1,000,000 feet of chestnut and 1,000,000 feet of oak, lynn and other merchantable hardwood outside of spruce and hemlock, which were not considered in the contract; and the defendants, relying on the representations and guarantee of May & Cole as to the quantity and kind of timber, which were knowingly false and fraudulent, and a material inducement to, the contract, purchased the said 3,000,000 feet of timber at the rate of $1 per 1,000 feet, for the sum of $3,000, and at said time, relying upon the said false and fraudulent representations, intending to deceive, and which did deceive the defendants, were induced to execute the notes set out in the complaint together with other notes, and have paid off all of the said notes, except the aforesaid, when in truth and in fact there was only 464,728 feet of poplar on said boundary of land, 208,377 feet of chestnut and 240,121 feet of oak, lynn and all other timber, considered in said contract and guarantee; and the plaintiff, both as an individual and member of the firm of May & Cole, is due the defendants the sum of $2,036.77 as shortage on the 3,000,000 feet of timber purchased as aforesaid, as damages. There was further allegation of similar import as to false and fraudulent representations in regard to the other property, machinery, etc., conveyed. The plaintiff replied, denying all charges of fraud and deceit.</p> <p>The defendants in apt time tendered issues addressed to each phase of their defense, and on refusal to submit them excepted and requested His Honor to settle the issues deemed by him pertinent and raised by the pleadings.</p> <p>There was evidence on the part of the defendants .tending to show that at the time of the trade and as an inducement thereto, both the plaintiff and his partner stated that there were 3,000,000 feet of merchantable hardwood timber on the two tracts of land, ascertained by two careful estimates made at different times, and that the same had been picked out of 20,000 acres as 1,000 acres of choice timber land; that the machinery and other property used in connection with the same were practically new, having been in use only six months and were in good condition; that as a matter of fact there was only about 1,000,000 feet of hardwood timber on the land, and this-was well known to the plaintiff at the time, having been ascertained by them by the estimates previously made, and to which the plaintiff referred, and was unknown to the defendants, who relied on the positive assurance and statements of the plaintiff as to the quantity of timber; that the machinery was old and worn and the boilers had many patches on the inside and were old worn-out boilers when brought there the year before, and so defective that they had to be immediately removed as being dangerous, and replaced at an additional cost to the defendants of something like $600.</p> <p>A witness by the name of William Quiett testified, among other things, “that about a week before the trade, Cole came to the witness and asked him how much timber was on the boundary; that the witness told him there was 1,000,000 or 1,100,000 feet, and Cole replied that he thought there were 2,000,000 or 3,000,000 feet. Cole then said not to say anything about the estimate which had been made of the timber; that he had a chance of a sale and it might interfere with his deal.”</p> <p>There was also testimony to the effect that the defendant Loomis was without any experience in milling or stumpage, and Dotson alone, of defendant firm, had any knowledge or experience in estimating timber or manufacturing it; and that just prior to the trade and when negotiating thereon the parties went out to the land to take a look over it, when Dotson, who had consumption and was very weak, gave out and was unable to proceed, and that Loomis was taken by one of the plaintiffs through a small portion of the smaller tract (was gone about 15 or 20 minutes) and when they returned to Dotson, who. had built a fire and was resting by the roadside, Cole said: “I will guarantee 1,000,000 feet of poplar, 1,000,000 feet of chestnut and 1,000,000 feet of oak and other kinds of hardwood, sufficient to make up another million feet; that he and May had the timber estimated when they made the deal together, and also had it carefully estimated afterwards;” and during the negotiation Dotson said: “I have been physically unable to look over this property at all, and we have not seen the horses and mules and do not know the value of the machinery you are offering us, and so far as the timber on the land is concerned, we have simply to take your representations and guarantees about that; we believe you gentlemen are honest business men and if you will guarantee it to be as you have represented it, we will close the deal.” This was given — Cole saying it was even better than represented.</p> <p>When asked if the defendants relied on these statements as an inducement to the trade, they answered “yes,” and Dotson testified further: “We had nothing else to rely on. X was unable to go over the land and they both knew it. I stated to them that Loomis was not competent or capable of estimating timber. May and Cole both guaranteed it to be as represented by them.”</p> <p>The defendants also offered to prove that during the bargaining, Cole advised Dotson to say nothing to people up there about the property, as they were quite peculiar and did not like for strangers to come in their country. On objection this evidence was held incompetent and the defendants excepted.</p> <p>There was also evidence tending to show damage to the defendants by reason of the fraud and deceit to the amount of several thousand dollars. At the close of the testimony His Honor declined to submit the issues of the defendant’s counterclaim, dismissed the same as on judgment of nonsuit and gave judgment against the defendants on the notes. The defendants excepted and appealed.</p>

<p> Premature Nonsuits. </p> <p>An intimation of an opinion by tbe judge adverse to the plaintiff upon some proposition of law, which does not “take the case from the jury,” and which leaves open essential matters of fact still to be determined by them, will not justify the plaintiff in suffering a nonsuit and appealing. Such nonsuits are premature and the appeals will be dismissed.</p>

<p>AgtioN by B. Lipschutz against W. H. Weatherly and others, heard before Judge T. J. Shaw and a jury, at the November Term, 1905, of the Superior Court of Pasquo-TANK.</p> <p>Plaintiff sued for the recovery of the price of cigars sold and delivered to defendants on July 10, 1904. Defendants admitted the sale and price and set up a counterclaim for damages for breach of contract; The evidence material to the establishment and breach of the contract was in writing. On September 2, 1901, plaintiff and defendants entered into a contract whereby plaintiff agreed to sell to defendants cigars of a certain brand at $30 per thousand in lots of 5,000. “Terms of sale cash in ten days from shipment less two per cent discount. I agree to give said W & T. exclusive contract of the 44 cigars in all territory in North Carolina lying east of the Atlantic Coast Line E. E. Any orders received by me from that territory shall be turned over to said W. & T. The said W. & T. agree to advertise said cigars, I furnishing matter. This contract shall be binding so long as said W. & T. push the sale of said cigars.” On May 28, 1904, plaintiff, by his attorneys, wrote defendants that by reason of non-compliance with the terms of the contract on their part he “has repudiated same, and in future will only sell such cigars to you as you may order on the same terms and conditions as they will ship the same to any other persons in your territory.” The breach alleged by plaintiff was the failure by defendants to make payments in ten days. On June 2, 1904, plaintiff wrote defendants referring to the letter of his attorneys of May 28, saying, “And therefore of course we will make you no more shipments under that contract. We shall be more than pleased at any time in the future to sell you any of our cigars which you may desire; however, you can no longer have absolute territory and in the future we will sell goods fo whomsoever we please in the territory formerly controlled by you. * * * If you care to handle our cigars on these terms, we shall be pleased to fill any orders which you may furnish. We will not, however, in the future give you any commissions on any goods ordered by any parties in the territory formerly controlled by you, and we reserve the right to ship and sell to whomsoever we please.” After some further correspondence, plaintiff, on June 6, 1904, declined to fill an order of defendants until defendants sent to him a telegram dictated by plaintiff, in these words, “We agree to cancellation of previous contract. Ship goods as per terms of your last letter to us.” Defendant Weatherly was asked, on cross-examination, whether he sent plaintiff telegram in language above quoted. _ The telegram was not produced nor was its absence accounted for. Defendants’ objection being overruled, he answered affirmatively, to all of which defendants duly excepted. Defendant Weatherly testified that prior to May 28, 1904, they had complied with the contract — had advertised the cigars, gave up handling other cigars. That they were wholesale dealers in groceries, cigars and tobacco — had salesmen on the ro'ad selling -to their customers — furnished them with sample boxes to give away — worked this cigar almost exclusively; had built up a good trade. On a few occasions checks were not sent in ten days — heard no complaint from plaintiff. Defendants sold the cigars for $35.00 per thousand. Telegram was sent in reply to one from plaintiff of June 9, 1904. Defendants introduced evidence showing sales of cigars by plaintiff’s salesman within the territory east of the A. O. L. Railroad prior to May 28, 1904. Plaintiff introduced no evidence. The court charged the jury that if they believed the evidence they should answer the second issue “Tes” and the fifth and sixth “Nothing.” Defendants excepted. The jury having answered the issues as directed by the court, judgment was signed for plaintiff, to which defendants duly excepted and appealed.</p>

<p>Evidence — Nonsuit—Judgment “Out of Term'’ — Power of Court — V erdict.</p> <p>1. In an action for damages for negligently failing to store and sell peanuts, where there was evidence from which the jury could have reasonably drawn the conclusion that the defendant had failed in the discharge of his duty to safely store the property, a motion to nonsuit was properly overruled.</p> <p>2. An agreement empowering the judge to sign judgment “out of term,” gave him no power after the adjournment of the term to hear and pass upon a motion to set the verdict aside.</p>

<p>Judgment — Estoppel—Pleadings—Question for Jury.</p> <p>1. In order to derive any benefit from a former judgment as a bar to the prosecution of a pending suit, such judgment, even in actions before a justice of the peace, must be specially pleaded and will not be considered under the plea merely denying the indebtedness alleged in the complaint.</p> <p>2. Where there is any evidence that reasonably tends to prove the fact in issue, or where the credibility of the witnesses introduced by either party must be passed upon, the question of fact involved is always one for the jury under proper instructions from the court as to the law.</p>

AotioN by J. T. Jenkins against T. D. Holley, heard on appeal from the justice of the peace, by Judge R. B. Peebles and a jury, at the September Term, 1905, of the Superior Court of BeRtib. One Wilson, a colored man, was indebted to Jenkins in the sum of $20, for advances, which, he agreed to pay or work out. Wilson got employment from defendant Holley and brought him to see Jenkins. The plaintiff testified: “Holley asked if Wilson owed me and how much.

ActioN by Stewart Bond and others against Branning Manufacturing Co. and others, heard by Judge B. F. Long and a jury, at the Fall Term, 1905, of the Superior Court of BERTIE. This was an action to vacate and avoid a deed made by the ancestor of plaintiff to defendant John Darden, who thereafter conveyed the land and timber on the land to defendant, Branning Manufacturing Company.

<p>Justices Court — Pleadings—Trial—Joinder of Causes of Action — Breach of 'Warranty — Deceit—Issues—Plea in Confession and Avoidance — .Evidence—Instructions.</p> <p>1. When tlie parties come to trial in a justice’s court, tlie justice should require the plaintiff to state “in a plain and direct manner the facts constituting the cause of action” and a denial by defendant or other facts constituting a defense.</p> <p>2. Where two causes of action were set forth in a warrant before a justice of the peace (treated as a complaint), the judge properly submitted the issue upon the cause of action which was sustained by the evidence.</p> <p>3. While an action for breach of warranty arises out of contract and deceit is for a tort, yet when they both arise out of the same transaction they may be joined.</p> <p>4. The general rule is, that in the absence of a request by the complaining party, an exception will not lie to the failure to submit ' issues.</p> <p>5. A defense in tlie nature of a plea in confession and avoidance must be specially pleaded..</p> <p>6. In an action for damages for breach of warranty, where defendant’s evidence was material to be considered by the jury upon the issue in regard to damages, a charge, that the jury might consider this evidence in making up their minds as to whether there was a warranty and breach thereof, is reversible error.</p>

<p>Railroads — Cattle, Guards — Toiuns—Stoclc Law — Deed to Right of Way.</p> <p>1. Section 2601, Revisal, which, requires railroads to construct cattle guards at the point of entrance upon and exit from enclosed lands, applies to a town lot as well as in the country and to stock law and non-stock law territory.</p> <p>2. The adoption of the stock law does not abrogate in such locality a general statute or rule of law.</p> <p>3. A deed to the right of way gives a railroad no more rights than it would have acquired by condemnation.</p>

<p>Negotiable Noles — Open Accounts — Suspension of Right of A ction — Consignment Contrcuct — Conversion—Charge.</p> <p>1. The acceptance of a negotiable security for an open account suspends the right of action until the maturity of the note and then if the plaintiff -will resort to his original cause of action, he must surrender the security. The acceptance of the promissory note, unless expressly so agreed upon, will not discharge the original cause of action.</p> <p>2. In an action for the unlawful conversion of the proceeds of certain buggies alleged to have been received under a cóntraet of consignment, where the complaint sets out the entire transaction and defendant makes no point of the fact that his promissory notes given for the price of the buggies, are not tendered at the trial, but simply denies that he received the buggies upon the contract, and the jury have found the issue against him, his contention that plaintiff cannot retain his notes and at. the same time prosecute an action against him for the amount received by him as agent, is without merit.</p> <p>3. Where His Honor, after the jury retired, learned that he had been misled as to the form of the defendant’s allegel contract, his conduct in calling them back and removing any impression made on their mind by reason of such misapprehension was not prejudicial to the defendant.</p>

ActioN by Geo.' H. Mitchell and others against J. E. Garrett and others, heard by Judge B. B. Peebles and a jury, at the Fall Term, 1905, of the Superior Court of Hertford. Plaintiffs brought the action to recover possession of a tract of land and damages for cutting timber therefrom.

<p>CONTROVERSY without action by Ella B. Hooker and others against Elizabeth Bryan and others, heard by Judge G. W. Ward, in the Superior Court of Beaufort.</p> <p>The pertinent facts presented by the record are as follows: Caroline Bonner died, having made her last will and testament disposing of certain real and personal property, and the parties, plaintiff and defendant, are claimants under said will. The rights of the parties depend upon the following items in said will:</p> <p>“5. I give the residue of my real estate to my beloved nephew, Eoscoe Hooker, upon his becoming 21' years of age, and lend the same to my beloved sister, Ella Bonner, until my nephew, Eoscoe Hooker, is 21 years old. 6. I lend to my beloved sister, Ella Bonner, the mule and other personal property upon the farm in trust for Eoscoe Hooker until he becomes 21 years old. 7. I give to my beloved nephew, Eoscoe Hooker, the mule and any other personal property that may be upon the farm.”</p> <p>Eoscoe Hooker, the nephew, died after the death of Caroline Bonner and before becoming 21 years of age, and the plaintiffs are the heirs at law and personal representatives of said Eoscoe Hooker. The defendants are the heirs at law and personal representatives of Caroline Bonner, the testatrix, including Ella Hooker, who is one of the heirs at law and next of kin of Caroline Bonner, and is also the Ella Bonner mentioned in the items of said will.</p> <p>On these facts the question submitted was as to the ownership of the real property in item 5 and of the personal property mentioned in items 6 and 7 of the will, and thereupon the court adjudged that the plaintiffs, the heirs at law of Eoscoe Hooker, are the owners of the real property in item 5, and the personal representatives of said Hooker are the owners of the personal property in items 6 and 7, from which judgment the defendants excepted and appealed.</p>

ActioN by F. M. Simmons and others against B. B. Davenport, beard by Judge Jas. L. Webb and a jury, at the May Term, 1905, of the Superior Court of Chaven. Plaintiffs sued the defendant to recover an amount alleged to be due for professional services rendered by them at his request in collecting a debt.held by him against an insolvent bank. Defendant denied that he was indebted to the plaintiffs.

<p>Action by Joseph F. Patterson against Old Dominion Steamship Co., heard by Judge Henry It. Bryan and a jury, at the November Term, 1905, of the Superior Court of Craven.</p>

Motion in the cause of A. J. Harrell, Executor of Jas. McDaniel, against George Blythe and others, heard by Judge B. B. Peebles, at the August Term, 1905, of the Superior Oourt Of NORTHAMPTON. This proceeding was brought in the late county court by A. J. Harrell, as executor of James McDaniel, for a sale of his land for assets,.

MotioN in the cause heard by Judge R. B. Peebles, at Halifax, N. C., on August 24, 1905, in the action by W. J. Atkinson, Executor of Willis W. Barbara, against W. S. Ricks, Executor of J. J. Boyd, pending in the Superior Court of NORTHAMPTON. The plaintiff sued J. J. Boyd, testator of the defendant, before a justice of the peace to recover a debt of $65 and interest, and caused an attachment to be issued and levied on a tract of land belonging to him.

ActioN by W. A. Cherry against Lake Drummond Canal & Water Co,., heard by Judge T. J. 8haw and a jury, at the September Term, 1905, of the Superior Court of CamdeN.

ActioN by H. D. Craddock against Priscilla Barnes and others, beard at the Fall Term, 1905, of the Superior Court of Washington. This was a motion of the defendants, appellees, to dismiss the appeal because not docketed as required by Rule 5 of the Supreme Court.

<p>ActioN by J. G. L. Crocker, Treasurer of Northampton County, against W. P. Moore, Treasurer of the Town of Jackson, heard upon an agreed statement of facts by Judge B. F. Long, at the Eall Term, 1905, of the Superior Court of Northampton. From a judgment for the plaintiff, the defendant appealed.</p>

<p>ActioN by J. W. King against Seaboard Air Line Railway, heard by Judge E. B. Jones and a jury, at the March Term, 1905, of the Superior'Court of Halifax.</p> <p>This was an action to recover damages for breach of contract of hiring. The following issues were submitted to the jury without objection, and answered as follows: 1. Was the contract of employment for the balance of the year? Yes. 2. Was the contract of employment for an indefinite period leaving to the parties the right to sever their connection at will? No. 3. Is defendant indebted to plaintiff, if so, in what amount? $440, with interest from January, 1904, to date, March 14, 1905. The plaintiff’s action is founded on the following telegram sent by J, T. Elmore, general road master of the defendant: “Henderson, N. C., April 2, 1903. J. W. King: Can offer you extra force at $65 per month. Will want you at once to ditch D. & N. Road and R. & Gr. Answer quick. Job will last all the year. J. T. Elmore.”</p> <p>There was evidence tending to prove that the plaintiff accepted the offer at once; that he was placed in charge of the work and at the end of eleven days discharged. Erom the judgment rendered, the defendant appealed.</p>

MotioN in the cause of John L. Roper Lumber Co. against Elizabeth City Lumber Co., beard by Judge T. J. Shaw, at the Fall Term, 1905, of the Superior Court of Camden. This cause was before us, on appeal by both parties, at February Term, 1904 (135 N. C., 742 and 744), and again, on petition to rebear, at February Term, 1905 (137 N. C¡, 431).

Actiof by O. L. Mills, Administrator of A. M. Harrison, against W. Harrison and others, heard by Judge Jas. L. Webb, at the October Term, 1905, of the Superior Court of Eeanklin. This was an action to determine the respective interests of certain claimants to a fund held by the plaintiff as administrator of Alexander Harrison, deceased, for distribution among his next of kin.

ActioN by H. P. Daugherty and wife against B. R. Taylor and wife, heard by Judge Henry B. Bryan and a jury, at the November Term, 1905, of the Superior Court of Chaven. From a judgment for the plaintiffs, the defendants appealed.

ActioN by McAfee Estate by Cora McAfee, Agent, against W. A. Greeg and wife, Addie Gregg, beard by Judge Fred Moore, at the Eall Term, 1905, of the Superior Court of Buncombe. From an order dismissing supplemental proceedings and dissolving injunction order, the plaintiff appealed-

ActioN by II. Pineus against Atlantic Coast Line' Railroad Co., beard by Judge Jas. L. Wébb and a jury, at tbe November Term, 1905, of the Superior Court of Edgecombe. This was an action to recover damages for injuries sustained on the platform of defendant’s warehouse. Erom a judgment of nonsuit, the plaintiff appealed.

ActioN by Orescent Hosiery Co. against Mobile Cotton Mills, heard by Judge B. B. Peebles and a jury, at the August Term, 1905, of the Superior Oourt of Halifax. There was evidence tending to show that on or about August 1, 1902, defendants contracted to sell and deliver to plaintiff 75,000 pounds of cotton yarns, 25,000 at 14% cents per pound, and 50,000 at 14% cents per pound.

ActioN by Willie Sledge against Tbe Weldon Lumber Company, beard by Judge R. B. Peebles and a jury, at the August Term, 1905, of the Superior Court of Noethampton.

<p>Contracts — Standing Timber — Statute of Frauds — Vendor and Vendee — Bilateral Contracts — Options.</p> <p>1. A contract to cut all timber of an indicated measurement on certain land, for a fixed period, passes a present estate in the timber defeasible as to all timber not cut within the limit of the time fixed.</p> <p>2. The fact that the plaintiff did not sign the contract so as to become in law bound for the payment of the purchase money does not prevent the contract from being a bilateral one, instead of a mere option.</p> <p>3. To make a contract to sell growing trees binding on the vendor, it is sufficient that the contract be signed by him, and it is not necessary that it should be signed by the vendee.</p> <p>4. The words of a contract, “all the pine timber that will measure twelve inches at the stump, eighteen inches above the ground, when cut,” mean all timber standing on the land which are found to be not less in diameter than 12 inches by measurement to be made 18 inches from the ground, at the time the trees are reached in the process of cutting.</p>

ActioN by Clara Nor cum and others against E. T. Savage, Administrator of J. H. Parker, deceased, and others, heard by Judge G. W. Ward and a jury, at the Fall Term, 1905, of the Superior Court of Gates.

ActioN by David Tanner against Prank Hitch and Prank Hitch Lumber Co., heard by Judge Jas. L. Webb and a jury, at the Pall Term, 1905, of the Superior Court of Edgecombe. The plaintiff was employed by the day to haul logs for the defendant. His lodgings provided by the defendant were at Speed, some five miles from the scene of the logging operations. .

ActioN by R. E. Euller against Atlantic Coast Line Railroad Co., beard by Judge Jas. L. Webb and a jury, at tbe October Term, 1905, of the Superior Court of FbanKLin. The evidence tended to show that on Monday, November 14, 1904, there was delivered to the Atlantic & North Carolina Railroad Company at New Bern, a brown mare for shipment to the plaintiff at Springhope.

Action by P. G. Alston and others against W. A. Cornell and others, heard by Judge E. B. Jones and a jury, at the September Term, 1905, of the Superior Court of Warren.

AotioN by M. S. Witherington, Administrator, with the will annexed of W. A. Herring, against N. B. Herring, heard at the November Term, 1905, of the Superior Court of WilsoN. From a judgment for the defendant, the plaintiff appealed.

ActioN by M. F. Thornton and others against Jno. W. Harris and others, heard by Judge B. F. Long and a jury, at the September Term, 1905, of the Superior Court of Warren. From a judgment for the plaintiffs, the defendants appealed.

ActioN by W. H. Chadbourn against E. I. Durham and wife, M. Della Durham, to foreclose a mortgage, heard by Judge M. U. Justice and a jury, at the January Term, 1905, of the Superior Court of Pendee. Prom a judgment-for the plaintiff, the defendants appealed.

ActioN by the Standard Sewing Machine Co. against D. A. Owings, beard by Judge E. B. Jones, át the October Term, 1905, of the Superior Court of Chaven. The plaintiff, holding notes of defendant for the purchase price of certain machines, bad instituted two actions on same against defendant, and said actions having been consolidated, plaintiff obtained judgment on said notes against defendant at May Term, 1905, of Craven Superior Court.

ActioN by John H. Eisher, Administrator of Boss Cobb, deceased, against City of New Bern; beard by Judge IS. R. Bryan and a jury, at the November Term, 1905, of the Superior Court of CRAVEN. This was a civil action for damages alleged to have been sustained by the plaintiff by reason of the death of bis intestate, caused by the negligence of the defendant.

<p>Contracts — Deceit — Fraud — Deeds — Damages — Market Value — Instructions—Harmless Error.</p> <p>1. Where the parties made a contract for the sale of certain timber, reserving a well defined class of trees, and defendant undertook to reduce the contract to writing, in accordance with its terms, but knowingly included the reserved timber and falsely represented to plaintiff that said timber was reserved in the deed, and by means of this false representation, procured the execution of the deed, the plaintiff has a cause of action for deceit, and this is not dependent upon the removal of the timber;</p> <p>2. Where a party signs the paper-writing which he intended, but is induced to do so by means of some false representation, this is fraud in the representation or treaty, and not in the factum.</p> <p>3. Before signing a deed the grantor should read it, or, if unable to do so, should require it to be read to him, and his failure to do so, in the absence of any fraud or false representation as to its contents, is negligence, for the result of which the law affords no redress, but when fraud or any device is resorted to by the grantee which prevents the reading,' or having read, the deed, the rule is different.</p> <p>4. One who chooses to make positive assertions without warrant, shall not excuse himself by saying that the other party need not have relied upon him. He must show that his representation was not in fact relied upon.</p> <p>5. In an action for deceit in falsely securing the execution of a deed, conveying timber which was reserved, where the defendant requested the court to instruct the jury that the extent of bis liability was the “market” value of the timber at the date of the deed, there was no error committed in giving the instruction with the word “market” stricken out, the court saying, that while the, market value should be considered as evidence of its value, it should not control — the question was what was its real value.</p> <p>6. Where the court instructed the j.ury that the burden was upon the plaintiff to show the alleged fraud by testimony clear, cogent and convincing, and in concluding the charge, said: “The burden of all the issues is on the plaintiff and the jury cannot find any one in their favor unless upon the greater weight of the testimony,” the last remark, considered in the light of the charge given in the beginning, could not have misled the jury.</p>

<p>AotioN by F. A. Boyle and J. P. Boyle, trading as Boyle Manufacturing Co., against W. L. Stallings and others, heard by Judge George W. Ward, at the June Term, 1905, of the Superior Court of MahtiN.</p> <p>Plaintiffs alleged that during the year 1898 they formed a copartnership with defendants for the purpose of operating a saw mill. Defendants owned the mill and agreed to sell plaintiffs a one-half interest therein for $2,500. Pursuant to said agreement they took charge and control of said mill and operated the same until the latter part of the year 1899. During said time, plaintiffs, with the consent of defendants, and in accordance with the terms of the contract of partnership, made, at their separate expense, valuable improvement and additions to said machinery, one-half of the value of which should constitute a set-off against the purchase price, etc. They made sundry payments on the one-half interest in the mill in money, lumber, etc.</p> <p>That, during the latter part of the year 1899, the partnership between the plaintiffs and defendants was dissolved and plaintiffs leased defendants’ one-half interest in the mill. Thereafter plaintiffs made sundry payments, and advanced sundry amounts on account of the purchase price of the one-half interest in the mill and made improvements thereon, etc. That by reason of the transactions and dealings had between the parties, a long unsettled account had been created, which should be stated and adjusted. That upon such adjustment it would be found that plaintiffs have paid the purchase money for said mill and, in addition thereto, defendants would owe them $500. That plaintiffs have endeavored to bring defendants to a settlement, but have failed to do so, etc. The plaintiffs ask the court that an account be taken under its direction, etc.</p> <p>Defendants deny the allegations, but admit that an account should.be stated and aver that upon such accounting it will be found that no part of the purchase money for the mill has been paid, and that a balance is due them on account of rents, etc. An order was made upon the complaint and answer referring the cause to three gentlemen selected by the parties with directions to take and state an account of the transactions, etc., and declare the amount due. The referees met and, after hearing testimony, examining the books of the parties, made their report, to which is attached a statement of account covering sixteen pages of the printed record. The plaintiffs filed several exceptions, a number of which are directed to the findings of fact upon the ground that they were not sustained by any evidence. They also excepted for that all of the evidence was not reported. When the cause was first called for trial upon the exceptions, the court remanded it to the referees, with direction to report the evidence with their conclusions of law and fact. This was done and the cause beard by His Honor, Judge Ward. Upon an intimation by the judge that be did not see 'any error in the report, “but would fully consider the same,” the plaintiffs stated that they would withdraw their exceptions and take a nonsuit. Defendants, objected. Motion for nonsuit was denied and plaintiffs excepted. The court thereupon took the cause under consideration, overruled the exceptions and confirmed the report. Plaintiffs excepted. Judgment according to report and appeal.</p>

ActioN by S. H. Isler, Jr., against J. W. Dixon, Heard by Judge W. B. Oouncill, npon exceptions to the referee's report, at the August Term, 1905, of the Superior Court of Lenoie. Erom a judgment for the plaintiff, the defendant appealed.

<p>ActxoN by Clifton Matbis, by Ms next friend, against Maglolia Manufacturing Co., for damages for personal injuries, lieard by Judge W. B. Oouncill and a jury, at' the August Term, 1905, of the Superior Court of Duplin. From a judgment for the plaintiff, the defendant appealed.</p>

ActioN by D. P. Mast, Guardian of Ered Burkhart, against H. O. Sapp, Administrator of Angeline Peoples, heard by Judge O. M. Cooke and a jury, at the May Term, 1905, of the Superior Oourt of Eoesyth. This action was brought to determine the right, as between the parties, to a fund of $865, now in the hands of the defendant by agreement, as stakeholder.

Action by Simon B. Parrott against Atlantic & North Carolina Railroad Co., heard by Judge W. B. Councill and a jury, at the December Term, 1905, of the Superior Court of Lenoie. Erom a judgment for the plaintiff, the defendant appealed. This is an action to recover damages .for a wrongful ejection of the plaintiff from the defendant’s train. The following issues were submitted: 1.

ActioN by W. T. Hughes and another against R. H. Knott and others, heard by Judge C. M. Cooke and a jury, at the October Term, 1905, of the Superior Court of Wake. From a judgment for the defendants, the plaintiffs appealed.

<p>ActioN by Claus Shear Go. against Lee Hardware House, heard by Judge M. H. Justice and a jury, at the November Term, 1905, of the Superior Court of Habnett. Erom a judgment for the plaintiff, the defendant appealed.</p> <p>This "was an action to recover on a bill of goods which plaintiff alleges it sold and delivered to defendant.</p>

<p>Action by N. J. Rouse and another against Shade Wooten, heard by Judge W. B. Allen and a jury, at the November Term, 1905, of the Superior Court of Denote. From a judgment for the plaintiffs, the defendant appealed.</p> <p>The action was- brought to recover the amount of a note payable to the plaintiff and signed by E. A. Hinson, as principal, and the defendant as surety. The issues submitted to the jury with their answers thereto were as follows: “1. Did the defendant execute the note sued on for value ? Ans: Yes. 2. If so, did he execute said note as surety ? Ans. Yes. 3. If so, was this fact known to the plaintiff? Ans. Yes. 4. If so, was said note paid at maturity? Ans. No. 5. If so, did plaintiffs give notice to the defendant of the non-payment of said note ? Ans. No. 6. If not, did plaintiffs give such notice to defendant thereafter, and if so, when? Ans. In doubt as to time, but about January after maturity of note.” The execution of the note was admitted. There was no exception to evidence or to the charge of the court. The defendant moved for judgment upon the verdict, which motion was overruled and he excepted. Plaintiff then moved for judgment; his motion was allowed and judgment entered upon the verdict for him. Defendant excepted and appealed.</p>

Special proceeding by Lillian Redding against Lucy R.. Vogt and others, for dower, heard upon issues joined, by Judge E. B. Jones and a jury, at the Eall Term, 1905, of' the Superior Court of Pamlico. From a judgment for the-plaintiff, the defendants appealed. The plaintiff brought the proceeding for the purpose off having her dower assigned in the lands described in her- petition. The evidence disclosed the following facts: 1. On.

ActioN by A. E. Johnson and R. E. Johnson, trading under the firm name of A. E. Johnson & Son, against Atlantic Coast Line Railroad Co., heard by Judge W. R. Allen and a jury, at the October Term, 1905, of the Superior Court of SAMPSON.

<p>ActioN by A. E. Johnson and R. E. Johnson, trading under the firm name of A. E. Johnson & Son, against Atlantic Coast Line Railroad Co., heard by Judge W. B. Allen and a jury, at the October Term, 1905, of the Superior Court of Sampson. Erom a judgment for the plaintiffs, the defendant appealed.</p>

ActioN by S. II. Eishblate against Fidelity and Casualty Co., heard by Judge, W. B. Allen and a jury, at the October Term, 1905, of the Superior Court of New HaNovee.

Action by Chas. S. Nelson against Priscilla Hunter, Ad-ministratrix of Jackie Nelson and others, heard by Judge Chas. M. Cooke and a jury, at the October Term, 1905, of the Superior Court of Wake. Action to recover from defendant, administratrix, the estate of Jackie Nelson, consisting of proceeds of sale of real estate. The following issue was submitted: Is the plaintiff the legitimate child of Jackie and Solomon Nelson? Answer: Yes.

ActioN by G. M. Beasley against D. H. Surles, beard on appeal from a justice of the peace, by Judge M. H. Justice and a jury, at the September Term, 1905, of the Superior Court of Johnston. Prom a judgment for the plaintiff, the defendant appealed. Plaintiff brought suit against defendant on account of a note for one hundred and forty-five dollars executed by defendant, payable to plaintiff, consideration being the purchase of one mare.

ActioN by John W. Hoggard, Administrator of Mary 0. Jordan, against C. E. Jordan and others, beard by Judge B. B. Peebles and a jury, at the September Term, 1905, of the Superior Court of Beetie. This was a petition by the administrator of Mary 0. Jordan, deceased, to sell land for the purpose of making assets with which to pay debts.

ActioN by W. A. West against Aberdeen & Rock Eisb Railroad Co., beard by Judge Fred Moore and a jury, at the November Term, 1905, of the Superior Court of Oum:bee-land. From the judgment rendered, defendant appealed.

ActioN by W. H. Williams against the Atlantic Coast Line Railroad Co., heard by Judge W. R. Allen and a jury, at the November Term, 1905, of the Superior Court of Duplin. Erom a judgment for the plaintiff, the defendant appealed.

ActioN by J. T. Bland and another against L. A. Beasley and others, heard by Judge W. B. Councill and a jury, at the September Term, 1905, of the Superior Court of Pendeb. The plaintiffs derive title by mesne conveyances under a grant from the State to William and James Hall, dated December 22, 1819. The question at issue* was one chiefly of boundary and depended to a great extent on the correct location of this grant.

ActioNs by A. J. Bullard against Jas. Hollingsworth, and others, and against Margaret McKenzie and others, consolidated and beard by Judge Fred Moore and a jury, at the October Term, 1905, of the Superior Court of Cumberland. Actions to recover damages for an alleged trespass upon plaintiff’s lands and for an injunction restraining the further cutting of timber thereon by the defendants.

ActxoN by Albert W. Mayers against N. J. McRimmon and others, beard on appeal from a justice of the peace, by Judge Fred Moore and a jury, at the September Term, 1905, of the Superior Court of Robesoh. The plaintiff declared on two drafts payable to the order of the Continental Jewelry Company, and accepted by the defendants, each in the sum of $16, bearing date April 19, 1904, and payable respectively ten and twelve months after date.

ActioN by D. J. Bullard against Sandy Edwards, beard by Judge Fred Moore, at the December Term, 1905, of the Superior Court of Kobeson. This is a summary proceeding in ejectment instituted in a justice’s court.