Volume 141 — North Carolina Reports

ActioN by R. L. Smith & Oo. against E. J. Erench, heard by Judge Henry B. Bryan and a jury, at the November Term, 1905, of the Superior Court of Chaven. Plaintiff, holding a chattel mortgage on certain personal property of defendant, a crop, a horse, etc., to secure a debt in the stun of $150, brought this action of claim and delivery for the property, and the same was taken under process in the cause and turned over to plaintiff.

<p>ActioN by Junius Davis, Receiver of the Bank of New Hanover, against J. D. Kerr ancl others, heard by Judge Fred Moore and a jury, at the Rail Term, 1905, of the Superior Court of Bladen.</p> <p>This was an action for the recovery of the possession of several tracts of land, the title to which plaintiff alleged to be in him as receiver of the Bant of New Hanover. Defendant J. D. Kerr admitted that the legal title was in plaintiff. By way of equitable counterclaim he averred that being the owner of said lands, on the 18th day of January, 1885, he conveyed them by way of mortgage to Isaac Bates, president of said bank, to secure the payment of a note of $500. That thereafter, during the year 1890, an action was brought and prosecuted to final judgment for the purpose of foreclosing said mortgage, and that a commissioner was duly appointed to sell said lands, etc. That, prior to the day appointed for the sale, he entered into a parol agreement with said Bates, by the terms of which he, said Kerr, was to attend the sale, bid in the lands and have deed executed to said Bates, who would hold the title for said Kerr until the debt and interest was paid, when he would convey to said J. D. Kerr. That pursuant thereto said Kerr did bid off the lands and directed the commissioner to execute the deed therefor to said Bates, which was done on April 11, 1890. That he remained in possession, sold off a portion of the lands to R W. Gibson, which were conveyed by said Bates by his (Kerr’s) direction —made other payments thereon, leaving due upon a settlement had with said Bates 'a balance of $62.50. The lands were thereafter conveyed by Bates to Bank of New Hanover and afterwards vested in plaintiff, who became receiver, June 1893.</p> <p>The following issues were submitted to the jury:</p> <p>1. Did Isaac Bates purchase the lands sold by C. O. Lyon, commissioner, in trust for the defendant, J. D. Kerr, and agree to convey said lands to J. D. Kerr on the payment of $500 and interest?</p> <p>2. Did the defendant, J. D. Kerr, pay the said $500, except, the sum of $62.50 ?</p> <p>3. Is the plaintiff seized in fee of the lands. in controversy ?</p> <p>4. Does tbe defendant, J. D. Kerr, wrongfully withhold said lands from plaintiff ?</p> <p>Defendant John D. Kerr testified in his own behalf, as follows: “Prior to the day of the ¡Me, I had agreed with Bates to attend sale and buy land for him, he to hold it for me until I should repay the full amount of the bid with interest on it from the day of the sale. The bid was $500. I. made the only bid. I directed commissioner to report the bid in the name of Isaac Bates, at the sum of $500. The sale was confirmed and deed made accordingly. Several perspns were present at the sale — Bates was not present, I represented him, and no one else did. Deed by commissioner to Bates was made pursuant to this agreement. Some time after the sale, Mr. Gibson applied to me to buy a part of the land. I reported the bid to Bates. Told him I wanted him to sell to Gibson for me for $250, and take the money as a credit on this debt of $500 and interest. He agreed to do so. Thought I ought to have gotten more for it. This was one of the tracts in the mortgage. Bates made the deed to Gibson. I directed him to do so. He told me that Gibson paid him the $250 and I saw the deed immediately after its execution. Gibson was present during part of the conversation. I paid Bates at one time $150. I can’t give the date of these other payments further than in last talk I had with Bates just prior to the failure of the bank. He stated that he would like for me to pay up the balance of the debt, that he wanted to close the matter up. I asked him how much the balance of the debt was. He went back in the bank, brought out a memorandum of some sort, and said pay the debt down to $5j0. I gave him as much of the money as I could spare. He told' me that there was $62.50, balance due after I gave him the money. This was in June or July, 1893, just before failure of the bank. I have been in possession of the land all the time. After the sale to Bates, and before the bank failed, I was in possession, paid the taxes during those years, or had it done. I paid other amounts besides the $150 and the amount Gibson paid, but I cannot give the amounts or the dates. The amounts were small. If I ever had receipts, I lost them. Since the receiver was appointed, he has paid some taxes on this land. I don’t remember how much he has paid, except that he paid two or three or possibly four years’ taxes. I have paid the taxes all the time. The land was worth probably one thousand dollars. It' was reported by commissioner that $500 was a fair valuation — he was my attorney all through that suit. I did not know as a fact that the Bank of New Hanover claimed this land. Saw deed to Gibson. The deed is made by the Bank of New Hanover, signed by Bates as president and others as directors. Deed from Bates to Bank of New Hanover for this land March 14, 1891. Saw plaintiff in regard to the land in his office in Wilmington and told him that I owed balance due on this debt and had been informed that Bates made a conveyance of it to him, and that he was claiming it as receiver, that I wanted to avoid a lawsuit if possible and would like for him to carry out the agreement which I had made with Bates. He replied that he did not recognize any such agreement and would decline to do so. I said I wanted to avoid a lawsuit; wanted to pay up what I owed. He asked me what I would give for it. I made him an offer of $250, and said Tf you feel like accepting that, I do not know whether it amounts to more or not, but would be willing to pay it rather than have a lawsuit.’ He said that he had been offered $500. I asked him to let me know what he would take for it. Said he would take $800, and I told him that I would have to hold off, did not have the cash then. Substantially the matter dropped there. I believe that I wrote him again.” Letter shown witness from plaintiff, receiver, March 31, 1902, in which it was said: “When we last talked about it you offered me $800 for all of the Bladen lands held by me as receiver, or $500 or $550, I think, for the 640 acre tract which lies partly in Colley Swamp. I write now to ask if I understood you correctly and if it holds good now, and if so, how soon you could wind it up and pay the money. Of course I made it clear to you that this is a cash transaction. Please let me hear from you at once, as I have other offers for the land. I must have an answer from you this week, by Friday, if possible.” Witness answered on April 4, “I will be down on 10th April nest, when I hope to arrange satisfactorily our business. Hope you can be in the city that day.” Witness continued, “I do not think I agreed to pay him $800, that was not my understanding. Some conversation with Mr. Thomas Davis, told him I thought the land was not worth $800, but would rather pay that amount than have a lawsuit, that I could not raise the $800 as it was a cash transaction, but thought I could raise the money. Did not try to get it.” E. W. Gibson testified for defendant: “I made a bargain for Land described in deed to me with defendant Kerr first. Agreed on $250 as the price several days before I got the deed. Kerr and I then went to the bank and saw Bates. Kerr did the talking, cannot remember what he said. I paid the money for the land to the Bank of New Hanover — -took a deed from the bank. Kerr and I agreed to meet in Wilmington to get Bates to make the deed. Kerr told me that bank was the owner of the land.” Plaintiff introduced deposition of Isaac Bates and other testimony tending to contradict the defendant’s version of the transaction. At the close of the evidence, plaintiff demurred and moved for judgment. Motion denied, plaintiff excepted.</p> <p>Plaintiff, among other prayers, requested the court to charge the jury: “The declarations of Kerr, the defendant, as to agreement between Bates and himself that Bates would re-convey to him upon payment of $500, are not of themselves sufficient to change the deed from O. O. Lyon, commissioner, to Isaac Bates, from an. absolute to a conditional one, or to engraft a trust on it in favor of Kerr.” Tbe court refused tbe instruction. Plaintiff excepted. Tbe jury having answered tbe issues in favor of tbe defendant, judgment was rendered accordingly, to all of which plaintiff excepted. Tbe plaintiff further excepted to tbe form of tbe judgment for that it provided for tbe sale of tbe lands by a commissioner and tbe application of tbe proceeds of tbe sale to tbe payment of tbe debt, and further that tbe costs of tbe action were taxed against the plaintiff, it having neither been alleged nor proven that tbe defendant, J. I). Kerr, was able, willing or ready to pay tbe debt found by tbe jury to be due.</p>

ActioN by D. A. Cameron and others against E. E. Hicks and others, heard by Judge G. W. Ward and a jury, at the January Term, 1906, of the Superior Court of Wayne.

<p>Special proceeding -for partition by J. 33. Buchanan and others against A. B. Harrington, heard by Judge G. 8. Ferguson and a jury, at the December Term, 1905, of the Superior Court of Moore.</p> <p>The petitioners allege that they are tenants in common with the defendant of a tract of land containing 24 acres, they owning five-eighths thereof and the defendant the other three-eighths. The defendant admitted the tenancy in common, but denied the allegation as to the interest of the respective parties, alleging on the contrary that the petitioners owned one-half and he the other half. The land formerly belonged to W. B. Watson, and at his death descended to his four children, Virginia, Willie, Garner and Bessie Watson. The first three for the consideration of $150 conveyed the land (not stating their interest therein) to the feme plaintiff on October 25, 1901, with full covenants of seizin and warranty. There is nothing in the deed to indicate that they did not have the entire estate in the land. On March 11, 1902, the plaintiffs conveyed a one-half interest in the land to the defendant, describing it as “containing 24 acres more or less, ahd adjoining the lands of L. Aeree and others, the same being the lands of Virginia Watson, Willie Watson and Garner Watson, heirs of W. B. Watson; deceased, deeded to L. B. Buchanan on the 25th day of October, 1901.” It appears further that on the 14th March, 1903, Bessie Watson, for the consideration of $37.50, conveyed her one-fourth interest in the land to the feme plaintiff. Issues as to the interests of the respective parties were submitted to the jury, who found for the defendant that he owned a one-half interest in the land. At the trial, the plaintiffs proposed to ask the witness, T. N. Campbell, “what land was the deed (to the defendant) intended to convey?” it being- the purpose to show by the witness that it was intended to convey one-half of the interest which they alleged that they then had, that is, three-eighths and not one-half of the whole. The plaintiffs then proposed to prove by the witness that it was understood and agreed by the parties, at the time the deed was executed, that the petitioners were selling only one-half of three-fourths, and the defendant was buying one-half of three-fourths. All of this proposed evidence was excluded and the petitioners excepted.</p> <p>The court charged the jury that if they believed the evidence -they should answer the first issue, as to the feme petitioner’s interest, one-half; and the second issue, as to the defendant’s interest, one-half, which they did. Judgment was entered accordingly and the petitioners appealed.</p>

<p>Contracts — Sales—W arranty — C onditions.</p> <p>A contract of sale may fix conditions precedent to the existence of any rights under the warranty, if they are reasonable. A failure by the buyer to comply with such conditions is fatal to his remedy for a breach of the warranty, whether he institutes an action himself or sets up the breach in defense to an action for the purchase money.</p>

ActioN by Geo. A. Miller against Southern Railway Co., heard by Judge 0. 8.

ActioN by Melvin Horne against Consolidated Railway, Light and Power Co., beard by Judge IF. B. Allen and a jury, at the October Term, 1905, of the Superior Court of New Hanover. This was an action prosecuted by the plaintiff to recover damages for personal injuries sustained while in the employment of the defendant company.

ActioN by Asber Edwards against The City of Goldsboro, heard hy Judge G. TV. Ward and a jury, at the January Term, 1906, of the Superior Court of Wayne.

<p>AotioN by Sam Alexander against Western Union Telegraph Co., beard by Judge G. W. Ward and a jury, at the September Term, 1905, of the Superior Court of AlamaNCE.</p> <p>This was an action to recover damages for negligence alleged in the delivery of a telegram addressed by Eli Alexander at Burlington N. C., to Sam Alexander, the plaintiff, at Spray, N. C., announcing to the plaintiff the death of his brother-in-law, and requesting the plaintiff to come at once. These issues were submitted to the jury: 1. Was the defendant guilty of negligence as alleged in the complaint? Yes. 2. What damage, if any, has the plaintiff thereby sustained on account of mental anguish caused by such negligence? $800. Erom the judgment rendered, the defendant appealed.</p>

ActioN by Arthur Eearington, by bis next friend, against tbe Blackwell Durham Tobacco Company, beard by Judge T. J. Shaw and a jury, at tbe October Term, 1905, of tbe Superior Court of Dubham.

ActioN by J. C. Ray against Aberdeen & Rock Fisk Railroad Co., beard by Judge C. 8. Ferguson and a jury, at the October Term, 1905, of the Superior Court of ScotlaND.

Special proceeding for dower by Lenore Haire against Owen L. Haire and others, heard by Judge G. S. Ferguson and a jury, at the December Term, 1905, of the Superior Court of ANSON. The plaintiff moved for judgment upon the admissions in the answer, which was granted, and from the judgment rendered, allotting dower, defendants appeal.

ActioN by Adella V. Johnson against W. Mangum Johnson, beard by Judge Q. S. Ferguson, at tbe November Term, 1905, of tbe Superior Court of Chatham;. This was a motion by tbe plaintiff and tbe defendant, jointly, to set aside a judgment rendered in this cause at tbe May Term, 1905. The motion was denied and tbe plaintiff and defendant appealed.

ActioN by T. M. Bynum against J. M. Wicker and Milo Fields, pending in tbe Superior Court of Moobe County, heayd by consent by Judge Fred Moore, at Wadesboro, on tbe 16tb day of January, 1906, upon a motion by tbe plaintiff to continue a restraining order theretofore granted, to tbe final bearing of tbe cause. From an order refusing to continue tbe injunction to tbe bearing, tbe plaintiff appealed.

ActioN by N. C. Freeman, Executor, against Rachel Freeman and others, heard by Judge T. J. Shaw, at the October Term, 1905, of the Superior Court of •DukhaM.

PeoobbdiNg for a cartway by G. .W. Cook and others against Jas. Vickers and others, heard by Judge T. J. Shaw, at the October Term, 1905, of the Superior Court of Durham. The plaintiffs, through the road supervisor of the district, filed their petition before the county commissioners for the establishment of a cartway from the residence of Geo.

<p>Injuries to Adjacent Owner from Water — Pleadings.</p> <p>Where the complaint alleges that “the roof of defendant’s building, a large three story livery stable, not being provided with glitters, the water collected thereon is thrown against the wall of plaintiff’s building adjacent thereto, which keeps the plaintiff’s wall moist and wet all the time, and this water has leaked through the plaintiff’s wall and injured her building, and the water has collected at the foot of her wall and this has put her to expense in drainage of her building under orders of the health officer, to which she would not otherwise have been subjected,” the demurrer that the complaint did not state a cause of action should have been overruled.</p>

ActioN by J atm. M. Moore against Southern Railway Co., beard by Judge G. S. Ferguson, at the January Term, 1906, of the Superior Court of Duehak. Erom a judgment overruling the demurrer, the defendant appealed.

ActioN by Mary E. Alley and others against T. J\ Howell, heard by Judge B. B. Peebles and a jury, at the October Term, 1905, of the Superior Court of Iredell. From a judgment for the defendant, the plaintiffs appealed.

ActioN by James W. Blackwell against Mutual Eeserve Fund Life Association, pending in tbe Superior Court of Dueham, and beard by Judge G. 8. Ferguson, at Chambers in Greensboro, on February 15, 1906. Plaintiff sued to recover amount of premiums paid defendant company, $2,314, on account of assessments upon a policy of $25,000, which he alleges was wrongfully and, in violation of terms of the contract, cancelled by defendant. He remitted the excess over $2,000.

<p>ActioN by B. T. Dunn against J. C. Currie, Administrator of Thomas Bunnell, beard by Judge B. B. Peebles and a jury, at the September Term, 1905, of the Superior Court of MONTGOMERY.</p> <p>The plaintiff -sued to recover to his own use the sum of $243.80 for work done, labor performed and services rendered by himself and family for Thomas Bunnell, the intestate of the defendant. He testified as follows: “Q. Did you ever do any work on the land of Thomas Bunnell? A. I worked on the land in cultivating it; I worked on the building; cannot tell the date; it was worth 15 cents per day.” He further testified that he did other work, such as cutting and binding wheat and oats, plowing and mauling; that his family also worked on the farm; that his wife did the cooking and he took care of the intestate’s house and his stock, and he and his wife nursed him in his last illness. The plaintiff’s wife is a daughter of the intestate. He then testified as to the reasonable worth of the work and labor done by him and his family. All of this testimony was objected to by the defendant in apt time and admitted. The defendant excepted. ■ There was other evidence introduced by the respective parties which "is not set out in the case because, as is stated, there was no exception thereto. At the close of the testimony, the defendant requested the court to charge the jury that if they believed the testimony in the case the presumption of a promise to pay for the services rendered is rebutted by the relation of the parties, and the plaintiff is not entitled to recover.” This instruction was refused and defendant excepted. There was a verdict for $232.15 and judgment thereon for the plaintiff. The defendant appealed.</p>

<p>ActioN by City of Durham against R. II. Rigsbee and others, heard by Judge G. 8. Ferguson and a jury, at the January Term, 1906, of the Superior Court of DubhaM.</p> <p>This was a proceeding under sections 1943 et seq. of The Code, now sections 2580-2588 of the Revisal, for the purpose of condemning land to widen a street.</p> <p>The defendants demurred to the petition. The demurrer was sustained by the clerk and an amended petition filed. The defendants demurred to the petition as amended. The demurrer was overruled and the clerk required the defendants ' to answer. Upon the filing of the answer," the clerk appointed three disinterested freeholders as commissioners to appraise the land described in the petition and plat attached. Upon the coming in of the report, the defendants excepted thereto upon the ground that the valuation placed upon the property condemned was inadequate. The petitioner also excepted upon the ground that the appraisement was excessive. Upon the hearing the clerk reduced the sum at which the commissioners had appraised the property from $2,500 to $1,750. Whereupon the defendants entered of record the following exception: “In open court the defendants excepted to the foregoing order and decree and every part thereof and appealed to the Superior Court in term and demand a jury trial upon the hearing of the appeal.”</p> <p>Upon the trial in the Superior Court, Judge Ferguson affirmed the order of the clerk overruling the demurrer of the defendants. Whereupon the defendants tendered certain issues which the court declined to submit, and thereupon submitted to the jury the following issue: “What damages have the defendants sustained by reason of taking the land condemned in these proceedings for the purpose of widening Church street? Ans. $2,000.” From the judgment rendered, the defendants appealed.</p>

ActioN by J. N. Davis against Durham Traction Co., beard by Judge T. J. Shaio and a jury, at the October Term, 1905, of the Superior Court of Durham. Plaintiff sues to recover damages for injuries sustained by reason of alleged negligence on part of defendant’s agents in managing its electric railway cars on the public streets of the city of Durham.

ActioN by Smith and Jenkins against the Board of Trustees of Robersonville Graded School, heard by Judge Chas. M. Coolce, at December Term, 1905, of the Superior Court of Martin. This was an action to restrain the authorities of a public school district, known as Robersonville Graded School District, from issuing bonds and levying a tax under and by virtue of an act of the General Assembly (Pr. Acts 1905, chapter 204,) and an election held pursuant to said act.

Partition proceedings by Howell Harwood and others against John E. Shoe and others, heard by Judge B. F. Long and a jury, at the Eall Term, 1905, of the Superior Court of Stanly. Defendant Shoe, having pleaded sole seizin as to 50 acres, the case was 'tried upon the following issues: 1. Did Susan Harwood, at the time of the execution of the deed of December 29, 1893, have sufficient mental capacity to execute the same ? Ans. Yes. 2.

ActioN by J. L. Wright against Southern Railway Co., heard by Judge G. W. Ward and a jury, at the October Term, 1905, of the Superior Court of GuilNokd. ■ ' The plaintiff brought the action before a justice of the peace to recover $133.27 alleged to be due by the defendant as wages for services rendered. The defendant pleaded what is-called the “general issue,” that is, it denied the indebtedness. The justice gave judgment against the defendant and it appealed.

ActioN by The Hilton Lumber Oo. against Atlantic Coast Line Railroad Oo., beard by Judge W. B. Gouncill and a jury, at the. December Term, 1905, of the Superior Oourt of New Han OVER. Plaintiff sued for the recovery of $3,865.26, alleged to have been unlawfully demanded and paid defendant company on account of discriminating overcharges for shipments of logs over defendant’s road from the 15th day of November, 1898, to the 30th day of April, 1901.

Appeal by IT. A. Sapp, Public Administrator of Eorsytb County, from an order of Judge B. B. Peebles made at the March Term, 1906, of the Superior Court of Eoestth, affirming an order of the clerk of the Superior Court appointing G. M. Bailey, administrator c. t. a. of the testatrix, Octavia Bailey. The testatrix, Octavia Bailey, died 2 November, 1904, and on 9 November her will was probated and the executor therein named, W. O. Cox, qualified.

AotioN by Glenn Hayes, by his next friend, against Southern Railway Go., heard by Judge Chas. M. Coohe and a jury, at the January Special Term, 1905, of the Superior Court of GuilNokd. This was an action to recover damages for forcible ejection from the defendant’s train. The court submitted the following issues: 1. Was the plaintiff injured by the negligence of the defendant ? Ans. Yes. 2.

ActxoN to recover land by Carl M. Jones against W. G. Ragsdale, heard upon a case agreed, by Judge G. S. Ferguson, at the February Term, 1906, of the Superior Court of GuilKoed. The court gave judgment for defendant and plaintiff excepted and appealed.

<p>ActioN by J. P. Jones against R. J. Reynolds Tobacco Co., heard by Judge E. B. J ones and a jury, at the December Term, 1905, of the Superior Court of Eobsyth.</p> <p>Action for damages for personal injury in wbicli the usual issues as to negligence, contributory negligence and damage were submitted. Erom the verdict and judgment rendered, defendant appealed.</p>

ActioN by Isbam Hairston against M. W. Bescberer, beard by Judge B. F. Long and a jury, at tbe August Term, 1905, of tbe Superior Court of Rowan. Plaintiff sues for specific performance of a contract for sale of real property. The facts as set forth in the pleadings and found by the jury are: Defendant entered into possession of the locus in quo during the year 1891, under a contract to purchase, and paid thereon $20.

<p>ActioN by David Dobbins and R. E. Stafford, Jr., by bis next friend, against Sarab Dobbins and others, beard by Judge W. B. Gouncill and a jury, at tbe February Term, 1906, of tbe Superior Court of Iredell.</p> <p>Proceeding for partition of land, wbicb was transferred from tbe clerk, upon tbe issue of sole seizin raised by tbe pleadings. Tbe land, wbicb consisted of two tracts, tbe “Home” and “Holman” tracts, was originally owned by Milas Dobbins, who .died in 1863, leaving two sons, Alfred and Augustus Dobbins. Alfred died September 25, 1818, leaving three children by bis first marriage, George, Eannie and John, and two by bis second marriage, David (one of tbe plaintiffs), born January 22, 1875, and Hna May, born April 12, 1878, and married to R. E. Stafford April 9, 1901. She died in August, 1905, leaving a child, R. E. Stafford, Jr., then 3 or 4 years old, who is tbe other plaintiff. Augustus Dobbins, the other son of Milas Dobbins, took possession of tbe lapd when bis father died, and has remained in possession until bis death in 1901, when bis widow, tbe defendant, Sarab Dobbins, continued in possession of tbe Home tract to tbe bringing of this suit, and of tbe Holman tract until September 3, 1903, her husband having devised all of tbe land to her by bis will, wbicb was duly admitted to probate and introduced in evidence. On September 3, 1903, she conveyed tbe Holman tract to tbe defendant, Geo. B. Nicholson, trustee, for tbe use and benefit of tbe other defendants, B. E. Long, D. M. Eurebes and A. L. Coble. Tbe trustee took possession on that day and has held it ever since. Tbe court admitted tbe evidence of tbe probate of a paper writing purporting to be the will of Milas Dobbins, tbe appointment of tbe administrator with the will annexed and bis qualification. Tbe will was not put in evidence, nor did tbe nature oi its contents in any way appear. Plaintiff objected to this testimony.</p> <p>At tbe conclusion of tbe testimony “tbe court instructed tbe jury that,'upon tbe evidence, tbe plaintiffs were not en-' titled to recover and they should answer tbe issue bio.’ ” Plaintiffs excepted. There was a verdict and judgment accordingly and tbe plaintiffs appealed.</p>

Aotiost by Warren W. Isley, by bis next friend, against Virginia Bridge and Iron Go., beard by Judge' G. W. Ward and a jury, at tbe September Term, 1905, of tbe Superior Court of Alamance. Action to recover damages for personal injury received by tbe plaintiff while in tbe employ of the defendant. Tbe court submitted tbe following issues: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant as alleged ? Ans. 'No. 2. What damage has tbe plaintiff sustained thereby?

<p>ActioN by J. M. Milliken against G. W. Denny, beard by Judge Q. W. Ward and a jury, at tbe October Term, 1905, of tbe Superior Oourt of Guiluohd. Erom a judgment of nonsuit, plaintiff appealed.</p>

ActioN by Cbas. E. Dunn against A. Marks, beard by Judge W. B. Gouncill, at the December Term, 1905, of the Superior Court of Denote,. From an order granting leave to file a defense bond, and the refusal of judgment by default, the plaintiff appealed.

ActioN by W. J. H. Weddington against Piedmont Fire Insurance Co., beard by Judge Jas. L. Webb and a jury, at tbe November Term, 1905, of tbe Superior Court of Mbok-1ENBURG-. Tbe plaintiff sued to recover tbe amount of an insurance policy for $500 issued by defendant to bim on October 21, 1903, for one year on a stock of goods.

ActioN by John E. Heavener, Administrator of Walter L. Heavener, against tbe North Carolina Railroad Co., beard by Judge Henry li. Bryan and a jury, at tbe January Term, 1906, of tbe Superior Court of Cabaeeus. Action for personal injury caused by alleged negligence of employees and agents of Southern Railway Co., operating defendant’s road under lease from defendant.

IN the matter of tbe will of Cameline Means, beard by Judge M. H. Justice upon an issue of devisavit vel non at tbe September Term, 1905, of tbe Superior Court of Cabae-kus., Erom a judgment in favor of tbe caveator, Lafayette Ury, tbe propounder, Edward Means, appealed.

ActxoN by R. J. Brown against tbe City of Durham, heard by Judge T. J. Shaw and a jury, at the October Term, 1905, of the Superior Court of Durham. This was an action to recover damages for personal injuries caused by the alleged, negligence of defendant corporation. Tbe usual issues in actions of this character were submitted: 1. As to defendant’s negligence. 2. Contributory negligence on the part of the plaintiff. 3. Damages.

AotioN by Mary A. Stewart, Administratrix of • S. T. Stewart, against the Raleigh & Augusta and Seaboard Air Line Railway Co., beard by Judge Ghas. M. Ooolce and a jury, at the October Term, 1905, of the Superior Court of Wake. Action by plaintiff to recover damages for tbe death of her intestate by reason of alleged negligence of defendant.

<p>ActioN by J. O. Rankin against D. W. Mitchem, lieard by Judge O. M. Goolce and a jury, at tbe September Term, 1905, of tbe Superior Court of Gaston.</p> <p>This was an action to recover damages for an alleged breach of contract on tbe part of tbe defendant in tbe purchase of one hundred bales of cotton.</p> <p>Tbe following issues were submitted:</p> <p>1. Did plaintiffs contract with tbe defendant to sell and deliver him 100 bales of strict middling cotton at Lowell, N. C., on February 20, 1905, for tbe price of 9% cents per pound? Answer: Yes.</p> <p>2. Was tbe time for tbe delivery of said cotton extended by mutual consent of tbe parties until April 10, 1905 ? Answer: Yes.</p> <p>3. Were the plaintiffs ready, able and willing to deliver said cotton to -the defendant at the time agreed upon for the delivery? Answer: Tes.</p> <p>4. Did defendant refuse to receive and accept said cotton ? Answer: Yes.</p> <p>5. What damage have plaintiffs sustained by reason of defendant’s refusal to receive said cotton ? Answer: $949.55.</p> <p>Prom the judgment rendered, defendant appealed.</p>

<p> Contracts —Damages —Loss of Profits. </p> <p>1. Where one violates his contract he is liable for such damages, including gains prevented as well as losses sustained, which may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, such as might naturally be expected to follow its violation, and they must be certain, both in their nature and in respect to the cause from which they proceed.</p> <p>2. The law seeks to give full compensation in damages for breach of contract, and in pursuit of this end, it allows profits to be considered when the contract itself, or any rule of law, or any other element in the case furnishes a standard by which their amount may be determined with sufficient certainty.</p> <p>3. In an action for damages for a breach of contract, in the absence of some standard fixed by the parties when they made their contract, the law will not permit mere profits, depending upon the chances of business and other contingent circumstances, and which are perhaps merely fanciful, to be considered by the jury as part of the compensation.</p> <p>4. In an action for damages by reason of defendant’s failure to exhibit plaintiff’s cigarette machine at the St. Louis Exposition, as it had contracted to do, the court erred in charging the jury that they might allow plaintiff damages suffered by the loss of profits it would have made if the contract had been performed and the loss of the benefits that would have accrued to it in increased sales of its machines, etc., in the absence of evidence that plaintiff had secured any contracts for the purchase of its machines if these proved satisfactory when exhibited, or that plaintiff would have made any particular number of sales, or any other proof which would enable the jury by any certain and reliable standard to estimate the losses.</p>

ActioN by Willie Rolin, by bis next friend, against R. J. Reynolds Tobacco Co., beard by Judge E. B. Jones and a jury, at tbe December Term, 1905, of tbe Superior Court of I’ORSYTH. Action for damages for personal injuries sustained by plaintiff while in defendant’s employment. Plaintiff testified : “I commenced work for tbe defendant about a year ago, May, 1904. I went in there one Monday morning.

ActioN by S. 0. Martin, against Calvin Houck and others, beard by Judge Oliver E. Allen and a jury, at the November Term, 1905, of the Superior Court of Caldwell. This action was brought to recover damages for an unlawful arrest and false imprisonment. The defendant, Calvin Houck, was a policeman of Granite Falls, when he was informed that the plaintiff had stolen a pair of shoes from a store while it was on fire. He and his co-defendants, J. 0.

<p>Statute of Frauds —-Mortgage Sale —Memorandum —Mortgages — Redemption—Tender.</p> <p>1. A party acquires no enforeible right as the successful bidder at a sale under a mortgage made by the agent of the mortgagee where the statute of frauds is set up as a bar and no memoranda of the sale was made by the agent.</p> <p>2. A blank deed in the ordinary form prepared by the agent of the mortgagee at his office after the sale, a distance of one hundred yards away and not signed by the mortgagee, or anyone else as his agent, and in no way referring to the printed advertisement is not a compliance with the statute.</p> <p>3. The advertisement of a mortgage sale being a mere offer to sell, standing alone, nothing else appearing on it, and there being no written memorandum connected with it showing a price bid and a purchaser, is not a contract to convey land nor a note or memorandum of a contract to convey to a. peculiar individual.</p> <p>4. A party to whom an equity of redemption has been conveyed has the same right to redeem that his grantor had and the right to pay the mortgage and have it cancelled.</p> <p>5. An unconditional tender on the day when the mortgage debt falls due, called the law day, discharges the lien of the mortgage, although the debt survives as a personal liability.</p> <p>6. Where, after the maturity of the mortgage debt, the mortgagor, after making a tender, which was not accepted, did not bring suit to redeem and pay- the money into court, the lien of the mortgage still subsists, even if the attempted foreclosure is void. Its only effect is to stop interest and costs accruing after the tender.</p> <p>7. A mortgagor may preserve his right to redeem against any purchaser by giving him notice of the tender before or at the sale.</p> <p>8. The phrase “keeping his tender good” does not mean that defendant must have paid the money into court. But the debtor must be ready, able and willing at all times to pay the debt.</p>

<p> Railroads —Passengers —Argument of Counsel —Evidence. </p> <p>1. The right of a passenger to recover against a carrier for its neglect to carry him to his destination, rests not only upon contract, but the duty so to carry him is imposed by law and for a breach of it he may recover in tort.</p> <p>2. The trial judge has a large discretion in controlling and directing the argument of counsel, but this does not include the right to deprive a litigant of the benefit of his counsel’s argument when it is confined within proper bounds and is addressed to the material facts of the case.</p> <p>3. In an action for injuries to a passenger owing to the drunken cork duet of the engineer, the testimony of a witness that “when he started to get on the train at the station the conductor told him not to get on, as it was dangerous to do so. Some negroes were in the car,” was competent as some evidence tending to show that the conductor knew of the drunken condition of the engineer and fireman before he left and the court erred in excluding the statement that “it was dangerous.”</p>

ActioN by W. H. Westball against J. S. Hoyle and another, heard by Judge W. B. Allen, at the December Term, 1905, of the Superior Court of Buekb, upon a motion to set aside a judgment theretofore rendered. Erom an order setting aside the judgment, the plaintiff appealed.

ActioN by Purl Aiken, by bis next friend, against Ebodiss Manufacturing Oo., beard by Judge M. H. Justice, at tbe March Term, 1906, of tbe Superior Court of BuRKe. From tbe denial of a motion to make an additional party defendant, tbe plaintiff appealed.

<p>Railroads — Grossings—0ontribuiory Negligence.</p> <p>Where the plaintiff’s evidence was to the effect that his intestate walked on the railroad crossing and was killed by the defendant’s train, and that the intestate at a point 20 yards from the crossing, by looking, could have seen down the railroad 200 yards in the direction from which the train approached, and that the intestate did not look, listen or turn her head, and was paying no attention to the train, the court was correct in giving an adverse intimation as to the plaintiff’s right to recover.</p>

<p>Ejectment — Evidence—Handiuriting—Experts—Qualification — Harmless Error — Declarations—Bes Gestae.</p> <p>1. It was improper to permit, over objection, a witness to testify as a handwriting expert, where the record does not disclose that the witness qualified himself as an expert or that he was asked any questions tending to qualify him.</p> <p>2. In an action of ejectment, erroneous admission of certain original deeds because not properly proved, does not present reversible error where certified copies of these deeds from the registry were subsequently introduced in evidence without valid objection and the case ,on appeal does not disclose that they were necessary to make out the plaintiff’s case, or in what way they worked to the injury of the defendant.</p> <p>3. In an action of ejectment it was not error to allow a witness for the plaintiff, who testified- that he rented the land from M. and held the same for one year under that lease, to testify further that M. said to the witness, at the time of the renting, that he was acting for the plaintiff, it being a part of the act of taking and holding possession, a part of the res gestae.</p>

AotioN by F. P. Hobgood, Trustee in Bankruptcy of tbe Ronda Lumber and Manufacturing Corporation, against W. B. Ehlen and others, heard by Judge E. B. Jones and a jury, at the December Term, 1905, of the Superior Court of Eobsyth.

ActioN by R. M. Twitty against Southern Railway Co., heard by Judge O. H. Allen, at the February Term, 1906, of the Superior Court of EutheRRORD, upou the following agreed facts: 1. This was an action instituted by plaintiff in the court of H. S. Taylor, justice of tbe peace in Eutherfordton, N..

<p>ActioN by Eebecca Morgan against E. C. Harris and ethers, heard by Judge O. U. Allen, at the September Term, 1905, of the Superior. Court of McDowell. Erom judgment rendered, both sides appealed.</p>

AotioN by S. E. Whitten against Western Union Telegraph Co., heard by Judge O. U. Allen and a jury, at the January Term, 1906, of the Superior Court of McDowell.

ActioN by Mary A. McGowan against Life Insurance Co. of Virginia, heard by Judge Henry B. Bryan and a jury, at the March Term, 1906, of the Superior Court of Mecklen-burg. From a judgment sustaining the demurrer, the plaintiff appealed.

ActioN by George W. Vanderbilt against D. L. Johnson and others, heard by Judge W. B. GounciU, at the Spring Term, 1906, of the Superior Court of Hendebson. The plaintiff brought this and another action to try- the title to property described in his complaints. The complaints contained the usual allegations in such cases and the answers denied them. By consent, the cases were consolidated and referred.

Actiok by W. S. Garter and wife against Western Union Telegraph Co., beard by Judge G. S. Ferguson and a jury, at the November Term, 1905, of the Superior Court of Chatham. From a judgment for the plaintiffs, the defendant appealed.

<p>Carriers — Overcharges—Penalty.</p> <p>Where it was admitted that “the defendant collected freight charges for the entire shipment, as invoiced and originally billed,” and the evidence was uncontradicted that the 96 cents was paid as freight on that part of the shipment which was “short” and not delivered, this was an overcharge under Revisal, section 2641, and failure to refund such overcharge after the 60 days allowed for investigation rendered the defendant liable for the penalty denounced by Revisal, section 2644.</p>

<p>Trespass — Grants —Adverse Possession — Disabilities—Evidence as to Damages.</p> <p>1. Where there are two or more conflicting titles derived' from the State, the elder shall be preferred upon the familiar maxim that he who is prior in time shall be prior in right and shall be adjudged to have the better title.</p> <p>2. Adverse possession of the plaintiffs under a junior grant (which was color of title) from October, 1S88, to December, 1897, vested the title in them as against the owners of the legal title under a senior grant, it not appearing that any of the latter were exempt from the operation of the statute of limitation by reason of of any disability, and a married woman who acquired no title by another junior grant issued to her, cannot use her disability to defeat the right of the plaintiffs.</p> <p>3. Adverse posesssion relates only to the true title and the exemptions in the statute as to those under disability can apply only to one having by virtue of his title a right of entry or of action.</p> <p>4. A finding that the plaintiffs have been in adverse possession “of the land within the lines” of the Berry grant and in adverse possession “of the Berry grant” means all of the land within the lines and boundaries of the said grant, both that above and below a certain line.</p> <p>5. In an action for damages for trespass where the plaintiffs owned only that part of a tract north of a certain line, evidence that trees were cut on the tract, but there was nothing to show whether north or south of said line, was too conjectural to form the basis of a verdict.</p> <p>6. The exceptions taken to the suggestion of the court, in regard to the effect of the introduction of a grant and to its refusal to allow the grant to be withdrawn, were not well taken, as those matters were peculiarly within the judge’s discretion.</p>

AgtioN by Joseph W. Janney and others against Thomas C. Robbins, heard by Judge 0. PL. Allen and a jury, at the November Term, 1905, of the Superior Court of Caldwell. This was an action to restrain defendant from unlawfully cutting timber on the land of plaintiffs.

ActioN by A. G. Brenizer against Supreme Council of tbe Royal Arcanum, beard by Judge Jas. L. Webb, at tbe November Term, 1905, of tbe Superior Court of MECKLEN-BURG. Tbis was a motion to dissolve an attachment levied upon certain moneys in tbe bands of D. T. Johnson, collector of Raleigh Council of tbe Royal Arcanum.

ActioN by S. C. Rayburn against Tbe Pennsylvania Casualty Company, beard by Judge W. B. Gouncill and a jury, at. tbe October Term, 1905, of tbe Superior Court of Ruti-ieb-D'ORD.

<p>ActioN by G. E. Kernodle against the Western Union Telegraph Company, heard by Judge B. B. Peebles and a jury, at the May Term, 1905, of the Superior Court of Alamance.</p> <p>Action to recover damages for negligence in failing to deliver the following telegram:, “D. W. Kernodle, Bethel, N. C. Ida is sick. Please let Charlie know at once,” signed G. E. Danniely. There was evidence tending to prove that the plaintiff arrived at Bethel on the train from the east at 9:20 a. m., and that the telegram was delivered to his brother two minutes after the train left. There is no allegation or charge of negligence in the transmission of the message. It was received at Bethel at 9 :05 a. m. from the judgment rendered, the defendant appealed.</p>

CONTROVERSY.without action under section 803 of the Re-visal, by the Board of Commissioners of New Hanover County and State of North Carolina, against F. H. Sted-man, sheriff, heard by Judge Jas. L. Webb, at the Spring Term, 1906, of the Superior Court of New HaNover. From a judgment for the plaintiffs, the defendant appealed. This was a controversy without action submitted to the court upon an agreed state of facts.

ActioN by S. J. Watson against J. 0. Farmer, beard on appeal from a justice of the peace by Judge Chas. M. Cooke and a jury, at the October Term, 1905, of the Superior Court of Wilson. The issues submitted were: 1. Was the plaintiff’s mule injured by the negligence of the defendant’s driver? Yes. 2. What damage did the plaintiff sustain? $55. Thereupon the plaintiff remitted the excess and the court rendered judgment for $50. Defendant appealed.

■' ActioN by H. H. Hartón., Administrator of Mary Willie Hartón, against Forest City Telephone Co., beard by Judge T'7. B. Allen and a jury, at the August Term, 1905, of the Superior Court of Ruthbefokd. There was evidence tending to show that defendant had erected its poles along a highway in Rutherford County.

AotioN by A. A. Woody against Intermont Iron & Timber Co., pending in the Superior Court of Yancey, and heard by Judge M. H. Justice, at chambers at Rutherfordton, N. C., on April 21, 1906, upon a motion to continue a temporary injunction to the hearing. Action to declare void a certain deed and to restrain the defendant from cutting timber on the land described in it.

ActioN by Ellen 0. Moore against Thomas McClain and others, heard by Judge B. B. Peebles and a jury, at the January Special Term, 1906, of the Superior Court of Polk. Plaintiff sued in ejectment, alleging title to a tract of land described in the óomplaint by metes and bounds; that defendants were in the wrongful possession thereof.

ActioN by Sylvia Gilliland and others, by tbeir next friend, against Board of Education of Buncombe County and School Committee of Avery’s Greek Township, heard, by Judge, T. A. McNeill and a jury, at the November Term, 1905, of the Superior Court of BuNcombe.

<p>Railroads — Negligence—Gontributory NegUgence — Derailments — Burden of Proof — Defective Appliances■ — -Lumber Roads — Street Raihoays — Fellow Servant Act.</p> <p>1. In an action against a lumber road for injuries from a derailment, tbe court properly refused defendant’s prayer to instruct the jury that if they believed the evidence to answer the first issue (negligence) “no,” as a presumption of negligence arose from the derailment. And there was, besides, in this case evidence that both the car and the track were defective.</p> <p>2. In an action against a lumber road for injuries from a derailment, the court properly refused to charge the jury that if they believed the evidence to answer the second issue (contributory negligence) “yes,” as the burden of this issue was upon the defendant and, besides, the evidence was conflicting.</p> <p>3. Lumber roads and street railways are “railroads” within the meaning of the Fellow Servant Act, Revisal, section 2646.</p>

<p>Justices of the Peace — Jurisdiction—Judgment for Purchase Money 'of Land — Execution—Vendor and Vendee — Notes —Parol Evidence — Consideration.</p> <p>1. A justice of the peace has jurisdiction to render judgment for the balance due on a note given for the purchase money of land.</p> <p>2. The interest of a vendee, who holds a bond for title to land, cannot be subjected to sale under execution upon a judgment rendered for the purchase money.</p> <p>3. In an action to recover upon a note given for the purchase money of land, parol evidence is competent to show the consideration of the note.</p>

<p>Ejectment — Title—Location of Land — Instructions—Exceptions and Objections to Charge.</p> <p>1. A plaintiff in ejectment must recover, if at all, upon tlie strength of liis own title and not upon the weakness of his adversary’s. He must, in other words, show a title good against the world or good against the defendant by estoppel.</p> <p>2. A request to charge the jury that “The beginning corner of said grant was a white oak, directly opposite what was known as the Upper Warm Springs at the date of the grant, and if you shall find that the spring, as now located and described by the wit- • nesses, is at the same place it was in 1803, and that there is no white oak now standing answering the description in said grant, then you will locate said beginning corner at a point on the east side of the. river directly opposite the spring as now located,” was properly refused upon the ground that the facts stated were too indefinite for a satisfactory location of the corner, especially under the circumstances of this case, and, further, because the prayer does, not conform to the evidence, but omits a material part of it.</p> <p>3. Where a judge fails to charge as to any particular- phase of the case, his attention must be directed to the omission by a prayer for special instructions upon the matter thus overlooked, or his failure to charge cannot afterwards be assigned as error, but when he so charges as to eliminate from the case a substantial part of it, which would necessarily prejudice one of the parties, it will be reversible error.</p>

ActioN by W. B. Burnett and another against A. H. Lyman and another, beard by Judge Walter II. Neal and'a jury, at tbe May Term, 1905, of tbe Superior Court of Buncombe. Erom a judgment for tbe plaintiffs, tbe defendants appealed.

<p>ActioN by W. K. Merrick against Harrison Bedford and another, beard by Judge W. B. Allen and a jury, at the March Term, 1906, of the Superior Court of BuncoMbe. Erom a judgment of nonsuit, plaintiff appealed.</p>

ActioN by J. M. G-udger, Jr., against H. A. White, beard' by Judge T. A. McNeill and a jury, at the October Term, 1905, of the Superior Oourt of Madison. The plaintiff sued for a parcel of land now in the possession of the defendant and designated on the map as A 1, 2, 3, 4, C, B, and back to A, tbe beginning.

<p>Street Railways — Liability of Assignor of Lease.</p> <p>Where the defendant had leased from a street railway the privilege of operating his ears over its track, but had assigned the lease and the ears, and was not engaged at the time in the operation of the road, he cannot be held liable for injuries to the plaintiff from the negligent operation of the ears by the employees of the assignee.</p>

<p>Damages for Death — flow Estimated — Annuity Act.</p> <p>In an action to recover damages for injuries causing death, the court erred in permitting the jury to consider the provisions of chapter 347, Acts 1905 (the Annuity Act), for the purpose of ascertaining the present value of the intestate’s life.</p>

<p>ActioN by Obediah J. Eitzgerald against the Southern Eailway Company, heard by Judge O. W. Ward and a jury, at the October Term, 1905, of the Superior Court of G-uil-foed.</p> <p>This was an action to recover damages for an injury caused by alleged negligence on the part of defendant. No contributory negligence was alleged in the answer and the cause was submitted to the jury on two issues. 1. As to the defendant’s negligence causing the injury. 2. As to damages.</p> <p>There was evidence tending to show that plaintiff on the 11th day of July, 1904, at the time of the injury, was in the employment of the defendant as a hostler on the yard of the defendant at Winston, N. C., and it was his duty with his helpers, who were employed by the defendant, when any engine came in, to take charge of and coal it, clean out the fire and put it away in its proper place. On the morning of the injury the engine had been moved up over the pit in which the fire was to be dumped along side of the coal ear from which the coal was to.be thrown into the tender. That this coal car was standing on a track parallel with the one on which the engine was standing 'and between the parallel tracks there was an open space, across which the coal was to be thrown. The engine had' been standing with fire in it all night and the fire had to be cleared from the engine and the water turned on the fire in the pit while the coaling was in progress. After the fire had been cleared from the engine and thrown in the pit, on the occasion of the injury, the water was turned through the hose which was attached to a hydrant, when the hose blew out so that the hose had to be fastened on again, and there was nobody to do this but the plaintiff; he was the only man to do this work around that point. The hydrant was in the open space between the coal car and the rear of the tender, and when the hose blew off, which had been insecurely fastened by the tank-man to the hydrant, the plaintiff squatted down by the tank with the back of his head towards the tender and 'was attempting to fasten the hose on the hydrant; he was two and a half feet from the tender and about eight feet from where the negroes were at work throwing coal straight across into the place in the front part of the tender for receiving and holding it.</p> <p>The plaintiff, in his own behalf, testified that the lump of coal weighed about 100 pounds and evidently described tiie size and shape of the coal by indicating the same with his hands. He was asked (p. 11, record), “ITow large was the coal?” and replied, “Of course I could not tell the weight then, but the lump seemed to be about that long and about that large around. Kind of an odd shape; seemed to be about a 100-pound lump, something like that.” The court, on stating this part of the testimony to the jury, said, “As I got his testimony down, it was a large piece of coal, about 20 by 20 inches and a 100 pound lump.” There was no objection to this part of the statement of the court and we take it that without question, the witness, when he said, “About that long and that large around,” indicated to the court and jury the size of the lump by the position of his hands or some other objective measurement.</p> <p>On his examination in chief, this is stated: That one of the negroes threw the lump of coal that struck the witness. On cross-examination he stated that he did not know which one of tlie negroes threw the coal, because he could not see it leave their hands up on the car while he was down there discharging his duty, and for the same reason he did not know whether it went up on the tender and rolled off or struck the tender and fell off. In answer to a question by the defendant, the witness stated: “Q. Do you know who threw it? A. No, I do not know which one threw it, because I could not see it leave their hands up on the car, while I was there discharging my duty.” “Q. You don’t know whether it came directly from the shovel on to your head or whether it went up on the tender and rolled off?” “A. No.” “Q. Nor whether it struck the tender and fell off ?” “A. That is the information I had.” The witness further testified that the coal should have been thrown into its bed or basin in the forward part of the tender. The negroes were engaged in throwing coal in the front end of the tender and did not have to throw the coal on the back end at all; that he did not know whether the boys saw him at the time; that they could have done so; he was at the rear end of the tender and on their side, but they knew he had to work all around them while they were coaling. The plaintiff was permanently injured and disabled. There was a motion for nonsuit which was overruled and the defendánt excepted.</p> <p>The court, after defining at length negligence and proximate cause, charged the jury in substance that if defendant through its agents failed to exercise proper care, that care which a prudent man should use under the circumstances, in throwing the coal from the car to the tender, and such negligence was the proximate cause of the plaintiff’s injuries, they should answer the first issue ‘yesA The charge also put the burden of the issue on the plaintiff. Defendant excepted. Yerdict for plaintiff and from judgment.thereon defendant appealed.</p>

ActioN by tbe State on relation of Eloreda Settle against Tbomas Settle, Administrator of Mrs. Mary Glen .Settle, deceased, and others, heard by Judge 0. 8. Ferguson at the February, 1906, Term of the Superior Court of GuilKORD. From a judgment for the plaintiff, the defendant appealed.

ActioN by Pint Winkler against S. E. Killian, Administrator of Susan Winkler, beard by Judge M. Ii. Justice and a'jury, at the March Term, 1905, of the Superior Court of Bubxe. There was allegation and also evidence on the part of plaintiff tending to show that Susan Winkler, late a resident of the County of Burke, died intestate in said county about the 26th day of March, 1903, and that on the 6th day of August, 1903, defendant was duly qualified as her administrator. 2.

ActioN by John G. Matthews against A. M. Ery and another, heard by Judge Walter H. Neal and a jury, at the Eall Term, 1905, of the Superior Court of Swain. Plaintiff sued to recover a tract of land in the possession of defendant. He introduced a grant from the State and connected himself with it by mesne conveyances.

Issue of devisavit vel non, beard before Judge Walter H. Neal and a jury, at the May Term, 1905, of the Superior Court of BuNcombe. The record shows that the paper writing, purporting to be the last will and testament of J. L. Murray, deceased, a copy of which is set out, is propounded for probate in open court by Alonzo Rankin and IT. S. Harkins', the persons named therein as executors.

ActioN by E.L. Bryson against tbe Southern Railway Co., pending in tbe Superior Court of Jackson County, and beard by Judge Walter PL. Neal upon defendant’s motion to remove tbe cause to tbe Circuit Court of tbe United States. Tbe petition to remove was filed on tbe 4tb day of December, 1905, before Judge Neal, then presiding in the courts of tbe Sixteenth Judicial District. His Honor denied tbe motion and defendant appealed.

<p>ActioN by J. P. Ledford against A. S. Emerson, heard by Judge Walter II. Neal, at the November Term, 1905, of the Superior Court of ChekoKee. From a judgment for the plaintiff, the defendant appealed.</p>

AcxiON by J. Taylor Hayes against James Franklin and others, heard by Judge O. H. Allen and a jury, at the Fall Term, 1905, of the Superior Court of Caldwell.

PROCEEDING- for partition by H. E. Rbea against J. 0. Craig and others, heard by Judge Fred Moore and a jury, upon issues raised’before the clerk, at the March Term, 1905, of the Superior Court of BuncoMbe. The proceeding was for the partition of a large body of land which descended to the parties from their ancestor, Tames Craig.

8. Eevisal, section 3051 (Acts 1903, chapter 159, section 13), prohibiting the discharge of sewage into any stream from which a public drinking supply is taken without reference to the distance of such discharge from the point of intake, is not unconstitutional as a taking of property without condemnation and without compensation, but is a valid exercise of the police power of the State to secure the public health.

ActioN by Sarah A. Wallace, Administratrix of Minor T. Wallace, against Seaboard Air Line Railway, beard by Judge Charles M. Cooke and a jury, at the October Term, 1905, of the Superior Court of Mecklenburg. Plaintiff administratrix sues for damages sustained by tbe death of her intestate by reason of the alleged negligence of the defendant.

ActioN by tbe City of Wilmington against E. K. Bryan, beard by Judge W. R. Allen, at tbe October Term, 1905, of the Superior Court of New Hanover, upon the' referee’s report. From a judgment for the' defendant, the plaintiff appealed.

<p>Specific Performance — Breach of Contract — Joinder of Causes — Defect of Parties — Contracts — Performance— Seasonable Time — Agency■—Option—Sales on Credit— Ratification.</p> <p>1. A cause of action for specific performance may be joined with one for damages resulting from a breach of the contract, or for a delayed performance, or for any other damages growing out of the transaction.</p> <p>2. Where a contract of sale was made directly with a syndicate, composed of plaintiff “and others,” Revisal, section 404, providing that a trustee of an express trust may sue alone, does not apply, and where plaintiff sued without joining his associates, a demurrer for defect of parties should have been sustained.</p> <p>3. The general principle is that when no time is specified in a contract for the performance of an act or the doing of a thing, the law implies that it may be done or performed within a reasonable time.</p> <p>4. The power to an agent to sell land does not of itself imply an authority to sell on credit. The presumption is that the sale is to be for cash.</p> <p>5. Where defendant wrote H. that if he could handle defendant’s land so as to net defendant a certain sum, he might do so and that the offer was good for four months, and that if H. should meet with some success in selling it about the end of four months, defendant would give an extension, and the letter used the expression, “This note should be used as an option to purchase,” and H. sold the land within four months purporting to act as agent for defendant, held, even if the correspondence amounted to an option to H. to buy, he did not avail himself of the option, but acted as defendant’s agent, and although he exceeded his authority in selling on credit, if the defendant ratified the act, he would be bound, and this question of-ratification must be submitted to the jury.</p>

ActioN by E. 0. Coffin and another against C. J. Harris and others, pending in the Superior Court of Swain, heard by Judge T. A. McNeill, at Chambers at Hayesville, N. C., on April 16, 1906, upon defendant’s motion to vacate the injunction theretofore issued, for want of equity in the bill. Erom an order dissolving the injunction, the plaintiffs appealed.

ActioN by City of Hickory against Southern Railway Company, beard by Judge Charles M. Cooke and a jury, at the February Term, 1906, of the Superior Court of Catawba. From the judgment rendered, both parties appealed.

INDICTMENT against Burton Jarrell and one Garfield Hicks, as co-principals in tbe murder of W. G. King, beard by Judge B. F. Long and a jury, at tbe December Special Term, 1905, of tbe Superior Court of Warhen. Tbe jury failed to agree as to Hicks and were discharged. They rendered a verdict of murder in the second degree as to Jarrell, and from the judgment pronounced, he appealed.

INDICTMENT for bastardy agaiust Charles Morgan, beard' by Judge Fred Moore, at the April Term, 1905, of the-Superior Court of Wane, on appeal by the State from an order of the clerk permitting the defendant to take the insolvent debtor’s oath, and be discharged. Erom a judgment affirming the order of the clerk, the State appealed.

INDICTMENT against Dennis Atkinson for assault with, a deadly weapon, heard by Judge P. B. Jones and a jury, at the September Term, 1905, of the Superior Court of Pitt. Erom a verdict of guilty and a judgment thereon, the defendant appealed.

INDICTMENT against tbe Atlantic & North Carolina Railroad Co., beard by Judge E. B. Jones and a jury, at tbe October Term, 1905, of tbe Superior Court of Oeaven.

INDICTMENT for murder against Erail Durham, heard by Judge TP. B. Gouncill and .a jury, at the .August Term, 1905, of the Superior Court of Pole. The defendant was convicted of murder in the second degree, and from the sentence of the court pronounced thereon, appealed.

INDICTMENT against Tbomas Piner for unlawfully selling liquor, beard by Judge Jas. L. Webb and a jury, at the January Term, 1906, of the Superior Court of Pendeb. The jury returned a special verdict, and found that, the defendant sold a gallon of wine of his own manufacture, on his own premises, which was made from the products of his own vineyard, none of which was drunk on his premises.

<p>Homicide — Evidence—Harmless Error — Declarations of Deceased — Killing with Deadly Weapon — Failure to Charge —Aiding and Abetting.</p> <p>1 Exceptions to the admission of evidence tending to prove premeditation will not be considered where the record shows there was no conviction of murder in the first degree.</p> <p>2. In an indictment for murder, declarations of deceased in relation to a prior difficulty with one of the defendants was inadmissible, where the language contained no threat.</p> <p>3. A killing with a deadly weapon implies malice, and, when admitted or proved, the prisoner is guilty of murder in the second degree, and the burden rests upon him to prove the facts upon which he relies for mitigation or excuse, to the satisfaction of the jury.</p> <p>4. An omission to charge on a given point is not error, unless there is a prayer to instruct thereon.</p> <p>5. Where the defendants were acquitted of murder in the first degree, an exception to the charge of the court relating to that feature of the case is without merit.</p> <p>6. In an indictment for murder, a charge that “If the defendant aided and abetted his co-defendant (his brother) in an assault on the deceased, then he would be guilty of murder in the second degree, manslaughter, or excusable homicide, according as his brother was guilty or excusable. But to convict defendant the jury must be satisfied beyond a reasonable doubt that he aided and abetted his brother. If his purpose was to. extricate his brother, he would not be guilty of any offense,” was correct.</p>

INDICTMENT of W. E. Hill for assault with deadly weapon, heard by Judge W. B. Gouncill and a jury, at the July Term, 1905, of the Superior Court of Onslow. There was evidence of the State tending to show that the defendant was guilty of an inexcusable assault with, a knife on one H. A. Jarman. The defendant in his own behalf testified: “On May 30 I went down in the field after breakfast to finish thinning corn; hadn’t been there long before II.

INDICTMENT against T. J. Wheeler for failure to _ work the public roads, heard by Judge M. PI. Justice and a jury, on appeal from a justice of the peace, at the September Term, 1905, of the Superior Court of WaKe. There was a special verdict, and from a judgment of guilty thereon, the defendant appealed.

INDICTMENT against Sylvester Powell for retailing intoxicating and spirituous liquor contrary to tire statute, beard by Judge M. K. Justice and a jury, at the February Term, 1906, of the Superior Court of Robeson.

INDICTMENT against Henry Thomas, heard before Judge Fred Moore and a jury, aft the February Term, 1906, of the Superior Court of Union. There was a special verdict and upon the facts therein set forth His Honor adjudged that the defendant was not guilty and the State appealed.

<p>Intoxicating Liquors — Statutes—Repugnancy—Repeal—Ef-fect Upon Pending Prosecutions.</p> <p>1. Where a statute prescribing the punishment for a crime is expressly and unqualifiedly repealed after such crime has been committed, but before final judgment, though after conviction, no punishment can be imposed.</p> <p>2. Chapter 497, Laws 1905, which enacts that the sale of liquor “shall be” prohibited in Union County and provides that all laws and clauses of laws in conflict with the act are repealed, and that the act shall take effect June 1, 1905, is prospective in its operation and applies only to sales after June 1, 1905, and does not repeal chapter 434, Laws 1903, prohibiting the sale of liquor in said county, as to sales made prior to June 1, 1905.</p> <p>3. Repeals by implication or construction are not favored, and they should not be extended so as to include cases not within the intention of the Legislature.</p> <p>4. The repeal in any ease will be measured by the extent of the conflict or the inconsistency between the acts, and if any part of the earlier act can stand as not superseded or affected by the later one, it will not be repealed.</p>

INDICTMENT for obtaining property under false pretences against G. P. McWhirter, heard by Judge G. 8. Ferguson and a jury, at the November Term, 1905, of the Superior Court of Union. Erom a verdict of guilty and a judgment thereon, the defendant appealed.

INDICTMENT against Sarab Baskerville, beard on appeal from a justice of tbe peace, by Judge M. H. Justice and a jury, at tbe September Term, 1905, of tbe Superior Court of WaKE. Defendant, on warrant duly issued, was tried, convicted and sentenced in a court of a justice of tbe peace of Raleigh Township, for violating a valid ordinance of tbe city, and thereupon appealed to tbe Superior Court, contending that tbe justice of tbe peace bad no jurisdiction to try the case.

INdictmeNt for assault with a deadly weapon, against L. Barrington, beard by Judge Fred Moore and a jury, at the January Term, 1906, of the Superior Court of Richmond. There was evidence of the State tending to show that on or about September 23, 1905, defendant made an unlawful assault with a deadly weapon on one Robert Leviner, and that such offense was committed in North Carolina.

<p>Seduction Under Promise of Marriage — Indictment—Sufficiency —Evidence —Statements of Prosecutrix —Character — Chastity—Innocent and Virtuous Woman.</p> <p>1. An indictment for seduction under promise of marriage, under Revisal, section 3354, alleging that defendant feloniously seduced prosecutrix, an innocent and virtuous woman, under promise of marriage to the prosecutrix made by the defendant, is not defective on the ground that it does not allege a marriage contract.</p> <p>2. In an indictment for seduction under promise of marriage, it was competent for the prosecutrix to testify under what inducements and circumstances she yielded to defendant.</p> <p>3 In an indictment for seduction under promise of marriage, statements made by the prosecutrix to her mother after the seduction that defendant had promised to marry her, and that she loved him, were competent to corroborate her testimony on the trial.</p> <p>4. In an indictment for seduction under promise of marriage, it was competent to ask a State’s witness, on cross-examination, who had not testified as to the general character of the prosecutrix, whether there was not a report in the neighborhood derogatory to her character.</p> <p>5. In an indictment for seduction under promise of marriage, the court correctly charged the jury that evidence that prosecutrix permitted familiarities not amounting to incontinence in fact was a matter to be considered by them in passing upon the question whether she was a virtuous woman.</p> <p>6. In an indictment for seduction under promise of marriage, the court correctly charged that a virtuous woman is one who has never had illicit intercourse with any man, and that an innocent woman means that, although there may have been a marriage contract, yet if the prosecutrix yielded on account of lust or from any other motive than of the promise of- marriage, she would not be innocent within the meaning of the statute. Whether or not His Honor did not interchange the words virtuous and innocent, the defendant cannot complain of a harmless error.</p>

INDICTMENT for murder against Eobert Williams, heard by Judge B. B. Peebles and a jury, at the Eall Term, 1905, of the Superior Court of Davie. From a verdict of manslaughter and judgment thereon, the prisoner appealed.

INDICTMENT for larceny against Lee Beck, beard by Judge R. B. Peebles and a jury, at tbe February Term, 1906, of tbe Superior Court of Forsyth. From a verdict of guilty and a judgment tbereon, tbe defendant appealed.

<p>INDICTMENT against Eeed Martin, beard by Judge. B. B. Peebles and a jury, at tbe February Term, 1906, of tbe Superior Court of Foesyth.</p> <p>Tbe defendant, Eeed Martin, was indicted with Henry Eevels for wilfully and wantonly injuring an electric street car by breaking its windows with a rock. Tbe grand jury, as appears from tbe endorsements on tbe indictment, returned “not a true bill” as to Henry Eevels and a “true bill” as to Eeed Martin. Botb were put on trial.</p> <p>J. M. Cbitty, a witness for tbe State, testified: “I was motorman of tbe car the day tbe two defendants entered it at Fourth street. After going about a block or two, one of tbe defendants appeared to be intoxicated and was put off tbe car. One of tbe defendants, Eeed Martin, picked up a rock and threw it. Tbe rock missed tbe conductor, but broke a glass in tbe window of tbe car.” There was other testimony on tbe part of tbe State which corroborated this witness. Tbe defendants did not introduce any testimony, but requested tbe court to charge tbe jury that there was a variance between tbe allegation in tbe indictment and the evidence, and that tbe latter would not sustain a verdict-of guilty. This prayer was refused and tbe defendants excepted. Tbe defendant Eevels was acquitted. There was a verdict of guilty as to tbe defendant Eeed Martin, who moved in arrest of judgment. Tbe motion was overruled and be excepted. Judgment was pronounced upon tbe verdict and tbe defendant appealed. He assigned tbe following errors: 1. Tbe refusal of tbe court to instruct the jury, as requested, that there was a variance. 2. There was ■ a misjoinder of parties. 3. The offense could not be committed jointly. 4. That testimony competent only against the defendants jointly was admitted and used to convict the defendant Martin, when it appears that the indictment was returned “not a true bill” as to Revels and he was actually acquitted on the trial.</p>

INDICTMENT for embezzlement against George A. Summers, beard by Judge T. J. 8haw and a jury, at the January Term, 1905, of the Superior Court of Guilford. From the judgment pronounced on a verdict of guilty, the defendant appealed.

<p>Intoxicating Liquors — Illegal Bale, Punishment Therefor— Cruel and Unusual Punishment — Sentence—Reasons.</p> <p>]. For violation of a statute prohibiting the sale of spirituous liquors without a license, the person convie.ted may be imprisoned in the county jail with directions that he be worked upon the public roads.</p> <p>2. When no time is fixed by the statute, this court will not hold an imprisonment for two years cruel and unusual.</p> <p>3. It is proper for the trial judge to state the reasons which impelled ' him to impose the sentence.</p>

INDICTMENT against tbe 'Southern Railway Company, heard by Judge ill. U. Justice and a jury, at the March Term, 1906, of the Superior Court of Bueice. This is an indictment against the defendant for shipping cattle in violation of certain quarantine rules and regulations adopted by the North Carolina Board of Agriculture.

INDICTMENT for murder against Robert IT. Lilliston, beard by Judge George W. Ward and a jury, at the January Term, 1906, of the Superior Court of Wake. From a verdict of murder in tbe second degree and judgment thereon, the prisoner appealed.