Volume 144 — North Carolina Reports

Civil actiost, tried before Neal, J., and a jury, at August Term, 1906, Superior Court of Halifax County. This action was brought to recover damages for an injury received by tbe plaintiff while alighting from defendant’s train. The plaintiff testified that he boarded .the train at Scotland Neck, and had a ticket for Springhill, his destination. The conductor took up the ticket and informed the brakeman that he had a passenger for Springhill.

MotioN to dismiss an action for lack of service of process, heard before McNeill, J., at December Term, 1906, of Beau-KORiT Superior Court. On summons duly issued, tbe Sheriff made return: “Received 27 September, 1905. Served 27 September, 1905. Lefaiver & Co. not to be found in this county.

<p>Civil actioN to recover on a policy of insurance, tried before McNeill, and a jury, at May Term, 1906, of JacesoN Superior Court.</p> <p>There was evidence tending to show that plaintiff, having conducted for several years a general mercantile business at Eernhurst, Jackson County, N. C., in May, 1904, established a subsidiary business at Erastus, N. 0., two miles distant from the other store, and conducted same till the loss hereafter referred to. This second enterprise was carried on in a small storehouse, 18 by 25 feet, and a side room, 7 by 25 feet, mailing the entire floor space 25 by 25, the house being valued by estimate at $300.</p> <p>In January, 1905, the plaintiff procured a policy of insurance in defendant company on the structure at Erastus, N. O., and the merchandise therein contained, consisting principally of groceries, boots and shoes and clothing; the amount of insurance on the store being fixed in the policy at $200 and that on the goods at $1,500.</p> <p>On the night of 17 April, 1905, the storehouse at Erastus and all the goods therein contained was destroyed by fire, and defendant company, having failed and refused to pay the insurance, the plaintiff (claiming that his loss, by reason of destruction of store was $300 and that the goods destroyed at the time amounted to $2,100) instituted, the present action to recover the amount due on the policy.</p> <p>At the close of plaintiff’s testimony, on motion of defendant, the action was dismissed as on judgment of nonsuit, and plaintiff excepted and appealed.</p>

<p>Dbb'ENdaNt’s appeal, in habeas corpus proceedings, from the order of Ward, rendered 3 January, 1906, Superior Court of Ci-iowaN County, granting plaintiff custody of his minor child.</p>

<p>Civil ACTION, tried before Neal, J., and a jury, November Term, 1906, Halifax Superior Court. The defendant demurred ore terms to the complaint. Demurrer overruled, and defendant excepted.</p> <p>Plaintiff alleged that on 1 October, 1905, while he was in the act of boarding defendant’s trolley car, at Virginia Peach, in the State of Virginia, the employees in charge of the car, without notice or warning, suddenly started the car, jerking plaintiff down; that he was thrown under the moving car and injured, whereby it became necessary to amputate his arm. Defendant denied that plaintiff, at the time of the injury, was a passenger. It'also denied any negligence, and alleged that plaintiff by his -own. negligence contributed-to the injury. The usual and appropriate issues were submitted to the jury. Prom a verdict and judgment for plaintiff, defendant appealed. The exceptions are set out in the opinion.</p>

<p>1. Corporation Residence. — The residence of a corporation for the purpose of suing and being sued is where the governing power is exercised, and is fixed by the charter, without power on the part of .the corporation to affect it by a change of its principal place of business.</p> <p>2. Removal Not a Matter of Right. — When suit has been commenced by a corporation returnable to the county of its residence as fixed by its charter, the defendant cannot, as a matter of right, remove it to a different county of which the defendant is a citizen and resident, though the plaintiff may have moved its principal place of business to another State.</p> <p>S. Motion to Remove Made Too Late. — A motion to remove a cause from one county in the State to another as a matter of right, when complaint has been filed, and time to file answer has expired, is made too late.</p> <p>4. Agreed Time Allowed for Answer. — An agreement between-counsel for time to file answer is an acceptance of jurisdiction and a waiver of any right to remove.</p> <p>5. Motion to Remove, Where and When Made. — A motion to remove a cause must be made in the district and during term of Court.</p> <p>6. Refusal of Motion to Remove Not Reviewable. — Refusal of Superior Court Judge to order removal of cause for convenience of witnesses and in the interest of justice, is not reviewable in the Supreme Court.</p>

<p>ActioN to recover damages, heard at Fall Term, 1906, CRAVEN Superior Court, on demurrer, Shaw, J., presiding. From judgment sustaining demurrer, plaintiff appeals.</p>

Civil actioN to recover damages for neglect in protecting plaintiff, a passenger on defendant’s train, heard by Shaw, J., and a jury, at October Term, 1906, Superior Court of Cba-veN County. The Court submitted the following issues: 1. Was plaintiff a passenger of defendant company? Answer: Yes. 2. Did the defendant company through its agents and employees wrongfully aid, abet or encourage a wrongful assault on the plaintiff, as alleged? Answer: Yes. 3.

<p>1. Administrator — Debt of Intestate — Assignment to Administra- ■ for. — -An administrator of tlie maker of a note carrying mortgage security may buy the debt and security with his personal funds and have them assigned to himself.</p> <p>2. Subrogation. — An administrator who has purchased with his own funds a note and mortgage made by his intestate, may avail . himself of the security, and collect from the estate the amount he has paid therefor with interest, being subrogated to the rights of the creditor.</p> <p>S. Unregistered Deed or Assignment Between Parties. — An unregistered deed of conveyance of lands is good between the parties and their heirs, in the absence of intervening rights of creditors or purchasers. The same principle applies to an unregistered assignment of a mortgage.</p> <p>4. Nonsuit and Appeal. — When the Judge below intimates the opinion that the plaintiff cannot maintain his action upon the allegations of his complaint, if taken as true, he may assign the ruling as error, and appeal.</p> <p>5. Deed of Administrator — Fraud on Heirs — Equity Will Set Aside— Purchaser With Notice. — Equity will set aside a conveyance of lands made under the power of sale in a mortgage, procured through collusion with an administrator in fraud of the rights of the heirs at law of his intestate, in the absence of intervening rights of creditors or purchasers.</p>

<p>Civil actioN, tried before McNeill, J., and a jury, Rail Term, 1906, Superior Court of PasquotaNK County.</p> <p>This action was brought to recover damages for injuries received at a railroad crossing, wbicb plaintiff alleges were ■caused by the negligence of the defendant in the management of one of its trains. The plaintiff and Bud Mann were riding in a buggy with Cecil Williams, who was driving. The horse and buggy belonged to Cecil’s father. The three ■occupants of the buggy were all boys about fifteen years old. They drove over the crossing to a cotton mill in Elizabeth City to collect their wages, and finding that they could not get their money at that time they drove bach, intending to hitch the horse to a tree on the other side of the track, and when they had reached the crossing the horse became frightened at the whistle of the engine, which was blown about •that time, and backed on or very near the track, so that he could not be driven across. When tbe train came in full view of tbe crossing it was about one-quarter of a mile away and the dangerous position of tbe plaintiff and bis companions could easily have been seen by tbe engineer. Tbe engine struck tbe buggy and killed Cecil Williams and Bud Mann and severely injured tbe plaintiff. Tbis was plaintiff’s version of tbe facts.</p> <p>Tbe defendant alleged tbat when tbe boys got in tbe buggy at the mill, Cecil Williams said tbat be intended to drive to tbe crossing and stop so as to “gentle” bis horse, and tbat be did drive to tbe crossing and stop, bis horse very near tbe track. Tbat tbe horse was standing there apparently under control'of tbe driver when it was first seen by tbe engineer, and tbat when tbe train bad approached too near tbe crossing to be stopped before reaching it, the" horse became unruly and got upon tbe crossing. Tbat immediately tbe fireman notified tbe engineer, and be reversed tbe engine and did all tbat could be done to stop tbe train, but failed to do' so, as it was too near tbe crossing, when the danger was first discovered, to' be stopped in time to avoid a collision with tbe buggy.</p> <p>There was evidence to sustain each of these contentions. Tbe defendant bad introduced a witness, M. II. Snowden, who testified tbat be beard a conversation between plaintiff and E. L. Garrett a few months after tbe accident, in which the former stated tbat Cecil Williams said when they left-' tbe mill tbat be would drive to tbe crossing .and stop there to “gentle” bis horse, and that be did drive there and stop. Tbe fireman testified tbat tbe horse was standing at the crossing when last seen by him before tbe engine was reversed. Tbe defendant proposed to prove by F. L. Garrett what tbe plaintiff bad said to him in tbat conversation as to “why tbe horse was driven up close to tbe track.” Tbis testimony was offered in order to show that tbe horse had stopped on reaching the crossing, and to corroborate the fireman, who testified that the horse was standing there when last seen by him before the engine was reversed. This evidence was excluded by the Court. There was testimony to the effect that the engineer applied the brakes as soon as he saw the horse .and buggy approaching the crossing, and when the horse stopped near the crossing, and appeared to be under control, he released the'brakes and the train continued at its former speed, that is, fifty miles an hour, until the engineer was notified by the fireman of the danger, and reversed the engine. He could not see the horse and buggy when he was told by the fireman of the danger, as the boiler of the engine obstructed his view, he being on the right-hand side of the cab.</p> <p>The defendant requested the Court to charge the jury that if the engineer applied the brakes when he first saw the horse and buggy approach the crossing, and then released them when the horse stopped and stood near the crossing, apparently under the control of the driver, and the horse did not start to cross the track until it was too late to stop the train and prevent the collision, and the engineer then-did all that could be done to stop the train, the defendant was not guilty of any negligence, and they should so find. The Court did charge, at the defendant’s request, that “If the horse was stopped before he reached the track, and appeared to be under control, defendant was not required to stop the engine or slacken the speed because of the presence of the buggy and horse, and was not guilty of negligence in failing to do so on that account, and the jury shall so find.” Issues as to' negligence, contributory negligence, the last clear chance and damages were-submitted to the jury.</p> <p>The substance of the instruction which was requested by tbe plaintiff upon tbe first issue, as to tbe defendant’s negligence, and refused by tbe Court, as to that issue, was given upon tbe third issue, as to tbe last clear cbance. Tbe Court charged generally that if tbe engineer failed to exercise ordinary care in , appro aching tbe crossing after be saw. tbe position of tbe horse and buggy, and this caused tbe collision, tbe jury should answer tbe first issue “Yes”; otherwise, they should answer it “No.” Tbe jury, answering tbe first issue, found that tbe plaintiff was injured by the negligence of tbe defendant, and in answer to tbe second issue, that there was no contributory negligence. They assessed tbe damages, but did not .answer tbe third issue. Defendant’s motion for a new trial was overruled, and judgment entered for the plaintiff, from which the defendant appealed.</p>

Civil actioN, tried before Shaw, J., and a jury, November Term, 1906, Superior Court of Obaveot County. Upon intimation of tbe Court that be would charge tbe jury to answer tbe issues in favor of tbe defendant, if they believed tbe evidence, tbe plaintiff submitted to a nonsuit, and appealed.

MotioN to dissolve restraining order, beard at chambers before Shaw, Jat Snow Hill, G-ejeeNe County, 4 December, 1906. Tbe motion was allowed, and plaintiff appealed.

<p>MotioN by defendants to dissolve injunction, heard by Shaw, J.j at October Term, 1906, Superior Court of Cha-ven County. The motion was granted and plaintiff appealed.</p> <p>The plaintiff company seeks to enjoin the defendants from cutting and removing timber from the land described in the complaint, alleging ownership, etc. Defendants, denying that plaintiff is the owner, .aver that they are the owners of said lands and allege that plaintiff threatens to cut and remove timber, etc. Tbe Court, by consent, found tbe following facts:</p> <p>That on 1 June, 1899, one Boyd and bis infant children were tbe owners of tbe land in controversy, and that tbe same was listed in Craven County for taxes for tbe year 1899.</p> <p>That on 26 October, 1899, for tbe sum of $100 and tbe costs of tbe special proceeding instituted for the purpose, tbe timber on said land was sold and conveyed to tbe plaintiff by deed registered on 26 October, 1899.</p> <p>That on 5 June, 1900, said land was sold for taxes for tbe year 1899 by tbe Sheriff of Craven County.</p> <p>That E. A. Nunn, attorney at law, representing the Beaufort County Lumber Company, purchased tbe land at said tax sale to protect tbe timber rights of tbe plaintiff.</p> <p>That on 30 January, 1903, tbe Sheriff of Craven County executed a tax deed for said land to said E. A. Nunn.</p> <p>That E. A. Nunn, as attorney as aforesaid, on 30 January, 1903, for $25, executed and delivered to tbe defendants a quitclaim deed for bis interest in tbe property, and that said sum was turned over to tbe plaintiff.</p> <p>Judgment was rendered for defendants, and plaintiff appealed.</p>

Civil actioN, tried before Slum, J., and a jury, at November Term, 1906, Superior Court of CbaveN County. Judgment for defendant, from wbrcb plaintiff appealed. This is a proceeding for the purpose of having the lands of the petitioner and-the defendants processioned and tbe dividing line separating them ascertained. The case was heard only as to the defendant E. E. Williams, no judgment being prayed as to the other two defendants.

<p>1. Issues — Contentions Preserved. — When under the issues submitted a party to a suit has a fair chance to develop his case to the jury, and may preserve his defenses under proper requests for special instruction, and the rights of the parties are determined and the judgment supported by the finding, it was not error in the Court below to refuse the issues tendered.</p> <p>2. Issues Tendered Covered by Charge Under Issues Submitted. — It is not error in the Court below to refuse an issue tendered if, under the issues submitted and under full and correct instructions of the Judge below, with proper reference to the evidence, the issues of fact involved are correctly submitted to the jury.</p> <p>3. Issues — Pleadings.—It is not error in the Court below to refuse an issue of fact not raised by the pleadings.</p> <p>4. Evidence — Sufficiency.—Evidence that the plaintiff had a dam to prevent the overflow of water from a river upon his land and which never broke until the erection below of a cross-dam by the defendant; that the cross-dam prevented the natural overflow-water from the river being carried down a natural flood-channel on defendant’s land, and that since the erection of the cross-dam by the defendant, the plaintiff’s dam had broken three times during freshets on account of ponding water against it, is sneli open and visible connection between canse and effect as to make it proper to be submitted to the jury, especially as the plaintiff had testified that the first break in his dam was caused by the defendant’s cross-dam ponding water back and against it.</p> <p>5. Damages — Flood Waters — Servient Tenant. — A land-owner holds his land subject to natural disadvantages as to flood or surface-waters, and he is liable to an adjoining owner for such damages as may result proximately from his erecting a dam across the natural flood-channel of a river on his own lands, whereby water is ponded upon the lands of such adjoining owner.</p> <p>6. Tort-feasors — Liability—Tort-feasors contributing to the same injury are jointly and severally liable, and the one who puts in motion one cause of the injury is liable to the same extent as if it had been the sole cause, the law not undertaking to apportion the liability.</p>

Civil actioN to recover damages for alleged negligent killing of plaintiff’s intestate, tried at October Term, 1906, of Ce-avee Superior Court, before Shan', J.} and a jury. At the close of tbe plaintiff’s evidence and on motion of defendant tlie action was dismissed as on judgment of non-suit, and the plaintiff excepted and appealed.

Aptbal in civil action from judgment sustaining a demurrer, before Biggs, J., at January Term, 1907, of Superior Court of EbaNKLIN County. Tbis action was brought to set aside a verdict and judgment and for a new trial in a former action between the same parties for tbe recovery of a tract of land, in wbicb the present defendant was plaintiff and the present plaintiff was defendant.

<p>1. Railroads — Suitable Cars — Perishable Goods. — A railroad company must furnish suitable cars for perishable goods accepted for shipment.</p> <p>2. Railroads — Refrigerator Cars — -Undisclosed Arrangements — “Icing” — Liability—Burden of Proof. — When the defendant railroad company is not compelled to accept perishable goods for shipment, but does so under an arrangement with a refrigerator company whereby the latter company was to furnish cars for perishable goods and do the necessary “icing,” the former company to handle such cars in the course of its business, the railroad company is liable to the shipper for damages caused by the neglect to do the “icing” required, the shipper having no knowledge or notice of the contract and holding the bill of lading of . the railroad company, the burden of proof being upon the plaintiff to show negligence only.</p> <p>3. Measure of Damages — Liability—Partial Exemption. — -The measure of damages to shipment of car-load of perishable goods, caused by defendant’s negligence, is the net value at destination after deducting commissions and cost of sale, and a stipulation in the bill of lading that such should be the value of the goods at the place of shipment is, pro tmvto, a partial exemption of liability from the effect of the defendant’s negligence, and is void.</p>

<p>Civil actioN, tried before Cooke, Jand a jury, at tbe October Term, 1906, of tbe Superior Court of Edgecombe County. Verdict and judgment for plaintiff. Defendant appealed.</p>

Civil ACTION, beard before Long, J., and a jury, on appeal from a court of a justice of tbe peace, at tbe December Term, 1906, of tbe Superior Court of MahtiN County, to recover a penalty provided in section 2632 of Revisal 1905. Verdict and judgment for plaintiff. Defendant appealed.

<p>Wills — Devise—Heirs—Children—Intention—Rule in Shelley’s Case. A devise of certain lands in trust to the use of one, and after his death to his issue forever, when it appears in an ulterior limitation that the words “issue” and “children” were used in the will as correlative terms, passes only an equitable estate for life to the first taker, and an equitable estate in fee to his children, the Rule in Shelley’s case having no application.</p>

Civxx. actioN in nature of trespass quare clausum fregit, tried before Shaw, J., and a jury, at November Term, 1906, •Superior Court of Oeaven County. At the close o-f plaintiff’s testimony, on motion of defendant, the action was dismissed as on judgment of nonsuit, and plaintiff excepted and appealed.

Civil actioN, brought in the Superior Court of DupliN County to- recover damages of the defendant for cutting trees. On 23 October, 1906, plaintiff obtained an order restraining defendant from cutting the trees into timber upon the land in question. A motion was made by plaintiff before Jones, J., at chambers in Kenansville, on 23 October, 1906, to continue the order to the final hearing, and from the judgment of his Honor the defendant appealed.

ActjoN heard and determined by Jones J., at DupliN Superior Court, at November Term, 1906. The Judge found the facts in accordance with agreement of counsel. From judgment for plaintiff, defendant appealed.

Speoial PROCEEDINGS for partition of land, transferred on issues raised, Superior Court in term, and tried before Neal, at December Term, 1906, Superior Court of Bertie County, a jury trial having been waived by the parties. Petitioners and defendant Leigh R. Sessoms are the children and heirs at law of Joseph W. Sessoms, who died in June, 1906, leaving a last will and testament in which disposition is made of the land in controversy.

CONTROVERSY submitted -without action, before McNeill, J.; at December Term, 1.906, of the Superior Court of Beaufort County.

<p>1. Removal of Cause — Joint Defendants — -Several Liability — Single Action — Federal Court. — Two defendants participating in the commission of a tort to the injury of the plaintiff are jointly and severally liable, and when the plaintiff has proceeded against them in a single action, the cause is not separable, and cannot be removed by a foreign defendant to the Federal Court, though different answers may be made and different defenses relied upon.</p> <p>2. Complaint — Domicile—Descriptive Words. — In the petition for the removal of a cause to the Federal Court, the defendant describes itself as a certain railroad company, and the complaint alleges that it is a certain “railroad company, of Virginia” ; the punctuation, by comma, being, as shown, between the word “company” and the words “of Virginia,” the latter words are construed merely as descriptive of the domicile.</p> <p>3. Evidence — Corporation Commission Reports — Public Records— Judicial Notice. — Reports of the Corporation Commission of North Carolina are matters of public record, of which the courts therein will take judicial notice.</p> <p>4. Removal of Cause — Federal Court — State Court — Jurisdiction. For the purpose of jurisdiction a corporation is a citizen and resident of. the State creating it, and cannot remove a suit to the Federal Court upon the ground of diversity of citizenship by actual and authorized consolidation with a foreign corporation and a change of its principal place of business, or domicile, to another State, prior to the commencement of the action.</p> <p>5. Removal of Cause — Charter Provisions — Jurisdiction Retained— Domesticating Act. — A corporation existing under an amended charter conferring powers to consolidate with other corporations, and containing a provision retaining jurisdiction in the courts of the State granting it, cannot, by prior consolidation with a foreign corporation and the change of its principal place of business to another State, remove a suit to the Federal Court upon the ground of diversity of citizenship, such jurisdictional provision being materially different from a corporation filing its charter with the Secretary of State under an act requiring such to be done for the purpose of conferring jurisdiction in such suits upon the State courts.</p>

Civil actioN, heard on the pleadings before Jones, J., at November Term, 1906, of the Superior Court of Duplik County. D. V. Morisey, on 9 September, 1899, duly executed bis last will and testament, in wbicb be gave to defendant Mary P. Brown certain real estate specifically described and “one thousand dollars in money.” He gave to some of the other defendants legacies and devised lands to them. To other defendants he devised land.

ActioN to recover a third interest in certain lands, heard upon facts agreed at December Term, 1906, of Martin Superior Oonrt, Long, J., presiding. ■ Erom the judgment rendered, defendant appeals.

Civil actioN, tried before Jones, J., and a jury, at the January Term, 1907, of the Superior Court of Wayre County. Judgment for defendant. Plaintiff appealed.

<p>Civil actioN, tried on appeal from, justice of tbe peace, before Long, and a jury, at November Term, 1906, of tbe Superior Court of Nash County.</p> <p>The action was to determine the rightful claim to $40, part of the proceeds from the sale of certain tobacco grown on the land of one Thomas Reynolds, in the year 1903, by one Joseph Tisdale, his tenant, and turned over to one J. N. Taylor to hold for the party entitled.</p> <p>The action was instituted by Thomas Reynolds against said Taylor. Thomas Reynolds died since the institution of the suit, and is now represented by Walter Reynolds, his executor.</p> <p>Defendants Hollingsworth and others were made parties, and claim the amount by reason of an agricultural lien executed by Joe Tisdale for the year 1903, in accordance with Revisal, sec. 2052.</p> <p>There was evidence to' show that Joe Tisdale, under a contract of renting made with Thomas Reynolds, occupied and used a storehouse and certain farming lands attached; that on these farming lands said Tisdale had raised, for said year, certain tobacco which had been sold for $103.95 net, and the $40 in question was a part of this amount; that another part, to-wit, one-fifth, had been paid over to plaintiff on the rent, and the remainder had been turned over to the intervenors on their agricultural lien.</p> <p>It was admitted that $40 was still due from Tisdale to plaintiff on the contract.</p> <p>Plaintiff contended, and offered evidence tending to show that the contract between Thomas Reynolds and Joe Tisdale was entire and indivisible, in which defendant took the property as a whole, and was to pay therefor, as an entire rent, $40, one-fifth of tobacco and cotton, one-fourth of other crops, and that the balance due of $40 was, therefore, a landlord’s lien on the crops on said lands and superior to intervenor’s claim.</p> <p>The defendant intervenors contended that the contract was severable to the extent that the rent was apportioned, $40 being due for the storehouse, and therefore the amount of rent remaining unpaid was no lien on the fund in question.</p> <p>Under the charge of the Court the jury rendered a verdict as follows:</p> <p>“Did the tenant, Tisdale, rent the houses and lands at one time and as one single agreement and contract, and agree to pay as rent for the house $40, and as rent for the land one-fifth of the tobacco and cotton and one-fourth of the balance of the crops ? Answer: Yes.”</p> <p>On this verdict judgment was rendered for plaintiff, and defendant excepted and appealed.</p>

<p>Habeas cokbus pe,oceediNgs .appealed from DupliN County, beard before Jones, J., at chambers in Kenansville, on 31 August, 1906, upon the petition of Egbert Hardy, for the custody of an infant in that of the respondent. Judgment for respondent. Egbert Hardy, petitioner, appealed.</p>

<p>1. Lands — Devise—Rule in Shelley’s Case. — Land devised by testatrix to lier three daughters during their natural lives and the natural lives of the survivors, with remainder over to the heirs at law, providing that should any of the daughters die without issue of her body the share of such daughter shall go to the other daughters, share and share alike, conveys a joint estate in fee under the application of the Rule in Shelley’s Case.</p> <p>2. Lands — Estoppel by De'ed. — Plaintiff claiming the inheritance of the land by the right of survivorship of her ancestor under the terms of the will cannot deny the fee-simple title of her grantee , under a deed thereto made by her for a valuable consideration.</p>

Civil actioN, tried at Fall Term, 1906, of the Superior Court of SamsoN County, before Jones, J., and a jury. The defendant excepted and appealed from the judgment rendered.

<p>Railroads — Rates—Published Tariff — Opposite Direction — Penalty. In shipments to a great distance, special circumstances, such as flow of trafile, may justify a higher rate between two points in one direction than in the opposite; and in an action for the recovery of the penalty under section 2642, Revisal, prohibiting railroad companies from charging more than the rate printed in the tariff in force at the time, or more than is allowed by law, it is error for the Judge below in effect to charge the jury that such tariff rate published between the two points for freight moving in an opposite direction to that of the shipment in question was conclusive, and that they should be governed in their verdict as to the overcharge accordingly.</p>

<p>Civil agtioN, tried before Peebles, J., and a jury, at November Term, 1906, of tbe Superior Court of HaRNett County. Verdict and judgment for defendant. Plaintiff appealed.</p> <p>This action was brought to recover tbe possession of two mules. Tbe plaintiff bought a mule from tbe defendant for $115 and gave bis note for tbe purchase-price, secured by a mortgage on tbe two mules described in tbe complaint. He alleged that tbe defendant bad warranted tbe soundness of tbe mule be bought and that afterwards be proved to be unsound; that he returned tbe mule to tbe defendant, paying him $30 for tbe use of it, and they then .agreed to compromise and settle their differences, tbe defendant specially agreeing to surrender tbe note and mortgage; but that be got possession of tbe two mules in violation of tbe agreement and refused to" return them.</p> <p>Tbe Court charged tbe jury, in part, as follows: “It is alleged in tbe complaint and admitted that in March, 1905, plaintiff conveyed tbe mules in question to defendant to secure tbe payment of a note for $175, due 1 October, 1905. This put tbe title to tbe mules in tbe defendant. But tbe plaintiff alleges that on 1 December, 1905, there arose a dispute between'him and defendant ,as to tbe soundness of tbe mule’s eyes, and be went to Dunn, saw tbe defendant and compromised and settled the whole matter; that the defendant took the mule back, received $30 for its hire, and promised to surrender the note and the' mortgage to’ plaintiff. This, action, therefore, depends almost entirely upon how you find the first issue. Upon that issue the burden is upon the plaintiff to satisfy you by the greater weight of evidence that the $30 paid 1 December, 1905, at Dunn, was paid and received in full compromise of the $175 note. If he has done that, then you should answer the first issue ‘Yes’; otherwise, you should answer it ‘No.’ In other words, the whole matter depends upon whether you find the facts to be as testified to by plaintiff or as' testified to by defendant and Jethro McLamb. The testimony of plaintiff is not corroborated by a single witness, but is contradicted by his own affidavit filed in this action on 2 December, 1905, the next day after the $30 was paid. In that affidavit he swore that the mule was his property, and he was entitled to the immediate possession of it. If the settlement was made the day before the mule was taken back by defendant, this ' affidavit was false. If the affidavit was .true when filed, his statement here as to the settlement was false. He is contra- . dieted by the receipt which he took from defendant when the $30 was paid. This receipt says the money was paid on • the mule note. He is contradicted by defendant and Mc-Lamb, who say the money was paid on the mule note, and nothing was said about a compromise. On the other hand, Lane is corroborated by McLamb, and by the receipt given to plaintiff 1 December, 1905, for .the $30; and if you find that the receipt on the $175 (mortgage note) was put there at the time the money was paid, and in the presence of plain- ’ tiff, then he is corroborated by that.</p> <p>“In passing upon the testimony of plaintiff, it is your cluty to consider the fact that he is interested in the result of this action; ascertain, as best you can, what influence this will have upon his testimony; consider what the witnesses said about his good character; consider the fact that he is contradicted by his affidavit filed in this action and by the receipt he took for the $30, .and then give to his testimony that weight and credit which, under all the circumstances, you think it entitled to. If you think he told the truth, you should give to his testimony the same weight and credit you would give to any other witness. Plaintiff testified that, when the $30 was paid, no one was in the office but him and Lane. Lane and McLamb testified that plaintiff Lane, McLamb, and plaintiff’s brother, S. W. Withers, were in the room. S. W. Withers was present in the court-room and a witness for plaintiff, and he did not put him on the stand to support himself and contradict Lane and McLamb. This circumstance you can consider also. When you go to consider Lane’s testimony it is your duty to consider the fact that he is interested in the result of this suit, and you must ascertain, as best you can, what effect that interest had upon the truthfulness of his testimony; consider what the witnesses s,aid about his character, the fact that he is corroborated by McLamb and by the receipt given plaintiff when the $30 was paid, which said, ‘Received $30 on mule note,’ and then give to Lane’s testimony that weight and credit which, under all the circumstances, you think it is entitled to.</p> <p>“The greater weight of the evidence does not necessarily mean the greater number of witnesses, but it means that testimony which carries home to your hearts and minds the greater amount of conviction. Where conflicts of testimony can be reconciled in a way consistent with the honest convictions of the witnesses, it is your duty to do so; but when it cannot thus be reconciled, it is your duty to determine which lied. The plaintiff says that the $30 was paid in full settlement and compromise of the $175 note, and that the mule was taken back by Lane. Lane and McLamb say that the '$30 was paid on the $175 note, and not a word was said about any compromise or about taking the mule back. The conflict between these statements cannot be reconciled — the '7plaintiff lied or Lane and McLamb lied. It is for you to say who told the lie. If the testimony of the plaintiff, unsupported, satisfies you that the $30 was paid for the hire of the mule, which was taken back, and the $175 note and mortgage were to be surrendered, then it is your duty to answer the first issue ‘Yes’; otherwise, to answer it ‘No/ If you answer the first issue ‘Yes’, you should answer the second and fourth issues ‘Yes’; and to the third issue, what you find the mules were worth when seized, if you answer the first issue ‘No’, you should answer the second and the fourth issues ‘No’, and make no answer to the third.</p> <p>“At the request of the defendant I here give all the evidence introduced.”</p> <p>His Honor then proceeded to state the evidence. Exceptions to the charge were taken by the plaintiff. A verdict was returned for the defendant, upon which judgment was entered and the plaintiff appealed.</p>

<p>1. Executors — Power to Sell — Option of Purchase. — -A power under a will to executors to sell land is valid, but does not include the power to give an option to purchase.</p> <p>2. Same — -Delivery of Deed — Condition Precedent- — -Tender of Price. A provision in an option that those to whom it was given should make partial payment for the land and secure the balance of the purchase-price by mortgage thereon within the time specified is binding only upon an unconditional acceptance of and a compliance with the terms, and the delivery of the deed is not a condition precedent to the tender of the price in the absence of a definite agreement to that effect.</p> <p>3. Same — Two Executors — Joint Powers — Waiver.—One of two executors may not waive the condition of time of an option given for the purchase of lands of his testator and fix no time limit for payment, in the absence of express power; and where there are two executors clothed with the power to sell land, such.power must be exercised by them jointly; and a waiver by one, otherwise having the power, does not bind the other. This also applies to sale of lands by executors under section 82, Revisal.</p> <p>4. Same — Intervening Rights — Waiver—Time the Essence.- — Where one of two executors who have given an option for the sale of lands of their testator waives the conditions thereof, and the other, after notice of election by those having the right to take the lands embraced in the option, writes that he is willing to make the deed, but could not comply with further demands not therein contained, and afterwards said he would make the deed with his co-executor: the letter is not a waiver; and such waiver would be inoperative to revive the extinct option and affect intervening rights, time being of the essence of the contract.</p> <p>5. Same — Recorded Option — Notice—Cloud upon Title — Liability.—A recorded option on lands given by executors having the power . under the will is notice of its terms only, and the time within which it should be exercised; and an unregistered' waiver of the time limit by the executors in consenting to execute the deed thereafter is inoperative against a purchaser for value under a sufficient and subsequently registered conveyance, made by those who had the right of election to take the lapels embraced in the option, and a court of equity will not place a cloud upon the title by making a decree requiring the executors to convey such title as they'may have; and the executors are not liable in damages upon refusing to make such conveyance.</p>

MotioN on part of defendant to retax costs, heard before Allen> J., at April Term, 1906, Superior Court of Sampson County. Tbe action was to recover damages for wrongfully causing a fire by an engine of defendant company, and by reason of which certain lands of plaintiffs were burned over and injured.

<p>Civil actioN beard before Jones, J., on demurrer at the November Term, 1906, of tbe Superior Court of DupliN County. Demurrer overruled. Defendant appealed.</p> <p>Tbe plaintiffs in tbeir complaint allege, tbat on 13 May, 1905, they leased to W. L. Carlton tbe hotel “Northumber-land” and tbe lot on wbicb it stands for tbe year 1906, at $480 as rent, payable in advance on 1 January, 1906. Tbe lessee Carlton assigned bis interest to tbe defendant Winders, wbo entered under the plaintiffs, bnt failed to pay the rent on demand and thereby became indebted to the plaintiffs in the sum of $480 and interest. The lease provided that if the lessee should fail to perform any of its conditions for ten days after notice by the lessor of such failure, the latter might re-enter without notice to.quit. Winders took possession of the leased premises in December, 1905, and having-failed for ten days, after due notice, to pay the rent, the plaintiffs brought summary proceedings before a justice of the peace to oust him. Judgment was given for the plaintiffs, and the defendants appealed to the Superior Oourt and gave bond in the sum of $540 to stay the execution or writ of possession, which was conditioned as follows: “If the said Winders shall pay any judgment, which in this or any other action the plaintiffs may recover for the rent of said premises and for damages for the detention thereof, this obligation shall be void; otherwise it shall remain in full force and effect.” The penalty of the bond was increased by order of the Superior Oourt to $650; and a second bond for that amount was given, with ai condition the same as the one in the first. O. E. Carroll was surety on the first bond and C. E. Carroll and W. L. Hill on the second. This suit was brought against J. B. Winders, C. F. Carroll and W. L. TIill to recover the overdue rent and interest, the plaintiffs further alleging that by reason of making the stay bond the defendants became indebted to them in the sum of $480 (the amount of the rent), with interest, and they pray specially for a recovery of the penalty of the bond to be discharged by payment of the said debt and the costs, and further for general relief.</p> <p>The defendants demurred to the complaint. As the demurrer has been lost, we cannot state exactly its contents, but it would appear from the statements in the case and the admissions in the briefs of counsel that the defendants joined in the demurrer and assigned more than one ground. They demurred generally for the reason that the plaintiffs cannot maintain the action at all, and specially because an action will not lie on the stay bond until there has been a judgment for the plaintiffs in the summary proceeding and a failure by the defendant Winders to pay the same, which is not alleged in the complaint. The Court overruled the demurrer, and the defendants excepted and appealed.</p>

<p>1. Nonsuit — View of Evidence. — An appeal from a denial of motion for nonsuit entitles defendant in the Supreme Court to urge any view of plaintiff’s evidence which involves the right to maintain the action.</p> <p>2. Statute — Penalty—Facts—Amendment.—In a warrant to recover a penalty under a statute, an averment alone that the amount claimed is “due by penalty,” without stating the facts or pointing out the particular statute under which the penalty is claimed, is insufficient, but the Judge below may allow an amendment in his discretion.</p> <p>3. Same — Railroads — Transport — Reasonable Time — Declaratory. Section 1467, Revisal 1905, mailing it unlawful for certain classes of carriers operating in this State to omit or neglect to transport, within a specified reasonable time, any goods, etc., ’ received by it for shipment from or to any point in the State, unless otherwise agreed upon, or unless the same be burned, stolen or otherwise destroyed, is declaratory of the common law, and does not exclude any defense as to delay in transportation that could properly be made thereunder, the burden of proof being upon defendant to show reasonableness in delays beyond the ordinary or reasonable time prescribed.</p> <p>4. Same — Rules of Evidence — Enforcing Common-law Duty. — Section 1467, Revisal 1905, fixing a time limit within which the transportation of goods, etc., by certain carriers shall be prima facie reasonable, and beyond which prima facie unreasonable, changes the rule of evidence alone, and the penalty imposed is solely to enforce a common law and admitted duty, and is within the legislative authority.</p> <p>5. Same — Consignor and Consignee — Owner of Shipment — Revisal, Sec. 1467. — When goods are delivered to a common carrier for transportation and bill of lading issued, the title, in the absence of any direction or agreement to the contrary, vests in the consignee, who is alone entitled to sue as the “party aggrieved” for the penalty given by section 1467, Revisal.</p> <p>Olarh, G. J. dissenting.</p>

Civil actios, tried before bis Honor, Webb, and a jury, at August Term, 1906, Superior Court of WayNE County.

Civil actior, tried before Council, J., and a jury, at December Term, 1906, of tbe Superior Court of Robeson County. The plaintiff sues the defendant company, in the hands of a receiver, for damages for injuries alleged to have been sustained while in its employment, by reason of defective ways, furnished in discharge of his duty, and negligence of its employees.

DEPENDANTS’ APPEAL. This actioh is brought by the relators, certain of the dis-tributees of W. N. Peden, .against tlie administrator of said Peden and the surety on his administration bond, the United States Fidelity and Guaranty Company, for an account and settlement, and to recover the sum due each distributee. Those of the distributees who are not parties plaintiff are made defendants.

<p>1. Administrator’s Bond — Sureties—Interest.—Under Revisal, sec. 1954, interest cannot be charged sureties on the penalty of an administrator’s bond.</p> <p>2. Assignment of interest in Suit — Attorney of Adverse Party of Record. — Certain parties to a suit cannot be heard to attack the assignment of other parties to the suit of their interest therein to an attorney of record of the opposing parties, when it does not appear that their interests are in any way affected.</p>

<p>Supreme Court — Motion to be Made Party — Judgment—Reformation. — After an appeal from tlie judgment of the Superior Court has been heard and determined by the Supreme Court, a party to the cause cannot maintain a motion in the latter Court to correct the judgment of the Court below, so as to make it declare • that an assignment of his interest therein to an attorney of record was subject to the payment of a sum of money, and had not passed from him, when it is admitted of record in the appeal that such assignment had been made, and no exception was taken in the Superior Court.</p>

Civil actioN, tried before Oouncill, Jand a jury, at tbe January Term, 1907, of tbe Superior Court of Mooes County. Held: at tbe time tbe motion was made, that tbe contracts as contained in Exhibits A and B were leases and not conditional sales or mortgages.

<p>Two civil actioNS, by consent consolidated, and tried before Justice, J., and a jury, at January Term, 1907, in tbe Superior Court of Dubham: County.</p>

<p>CONTROVERSY without action, submitted to Justice, J., at March Term, 1907, of the Superior Court of Durham County.</p> <p>This is a controversy without action, submitted to the Court for decision upon the following agreed statement of facts:</p> <p>The plaintiff Carpenter, on 27 April, 1906, sold his farm to defendant Edwards for $3,500, of which amount said Edwards paid $800 cash and executed a deed in trust to H. A. Eoushee to secure the sum of $2,400. Eor the bal-anee of $300 Edwards executed his bond under seal in the following words and figures, to-wit:</p> <p>$300. Durham, N. 0., 27 April, 1906.</p> <p>On or before 6 November, 1906, with interest from 1 May, 1906, I promise to pay to the order of A. M. Carpenter three hundred dollars, for balance of purchase-money of the tract of land this day purchased by me of him, coutain-ing 95 acres, less 3.58 A. See deed from J. W. Barbee and wife' in Deed Book 23, page 271, for description of same.</p> <p>O. M. Edwards, [seal].</p> <p>Witness: J. E. OweNs.</p> <p>Said instrument was on 30 April, 1906, probated and recorded in the office of the Register of Deeds of Durham County. The tract of land conveyed by Carpenter to Edwards is accurately described in the deed recorded in the office of said Register of Deeds. On 14 June, 1906, said Edwards, being indebted to' B. L. Duke in the sum of $1,786.12, executed to him a deed in trust for the purpose of securing the payment thereof, conveying the same tract of land described in the deed from Carpenter to him. Said deed in trust was duly recorded in the office of the Register of Deeds of Durham County. Thereafter, the said II. A. Eoushee, trustee, -pursuant to the power conferred upon him by the aforesaid deed, sold the said land for the sum of $3,250 and, after paying the debt of $2,400 secured thereby, has, in his hands or to his credit in bank, from the proceeds of said sale, $647.03, which he is ready to pay to the parties who may be adjudged entitled thereto. The whole amount of the note of $300 is due and unpaid and no part of the debt to B. L. Duke, secured in the deed in trust to him, has been paid. Plaintiff claims that he is entitled to be paid, out of the amount in the hands of Mr. Eoushee, the amount due on his note, while defendants, Duke and his trustee, J. A. Giles, claim said sum by virtue of the deed in trust of 14 June, 1906. His Honor adjudged that defendant Eoushee pay the plaintiff the note of $300, with interest, and the balance to J. A. Giles, trustee. Defendants Duke and Giles, trustee, appealed.</p>

<p>1. Overflow Water from Higher Building — Damage—Better Construction. — In an action for damages occasioned plaintiff by water falling from defendant’s wall upon ber roof, it is incompetent to show that had plaintiff’s building been better constructed the damages would have been lessened.</p> <p>2. Same — Proper Judgment. — A judgment containing a mandate that the defendant shall “provide sufficient gutters or pipes or drains for his large wall adjoining plaintiff’s, to prevent the water falling from the roof thereof from flowing against plaintiff’s building and lot,” is proper if it is an appropriate relief and in accordance with the allegations, and the verdict of the jury, though not named in the relief prayed for in the complaint.</p>

ActioN to recover for personal injuries, alleged to bave been caused by negligence of defendant, tried before Justice, J., at January Term, 1907, Guilford Superior Court. Tbe Court submitted these issues: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2. Did tbe plaintiff, by bis own negligence, contribute to tbe injury complained of, as alleged in tbe answer? Answer: No. 3.

<p>1. Towns — Bond Issue — Certain Interest Rate — Commissioners— Discretion. — An issue of bonds by a town in pursuance of a private act, 1905, chapter 334, authorizing the issue, “to bear interest at a rate not exceeding six per cent, per annum,” is valid as to the certainty of the interest rate when, under the act itself and under the notice of sale, the town commissioners were vested with full power to fix the rate of interest, not exceeding the rate aforesaid, and the records show that the rate was fixed at five and one-half per cent., in the discretion of the commissioners.</p> <p>2. Same — Maturity.—When it appears from the act under which the bonds are issued, and the notice of sale sent in pursuance thereof, that the date of the maturity of the bonds to be issued by the town was to be fixed by the town commissioners not longer than thirty years, and redeemable at the option of the town at the end of twenty c-years, a discretion is given to the commissioners to fix the date of maturity, subject to the limit of thirty years.</p> <p>3. Towns — Bond Issue — Provision for Interest and Sinking Fund— Tax Rate — Limitation—Special Tax — Validity.—When it appears that the tax rate of a town has not reached the limitation contained in the provision of the act -under which the bonds are issued, and, subject to such limitation, the commissioners shall levy a special tax sufficient to provide for the interest and a sinking fund, and that, if the tax levied during any one year should prove insufficient, an additional tax shall be levied, the issue will not be held invalid for a failure to provide for payment of interest and for a sinking fund.</p> <p>4. Towns — Bond Issue — One or Two Boxes — Commissioners— Discretion. — When it appears that the provisions relating to the issuance of bonds by a town for the purposes of water-works and sewerage “may be voted on in separate boxes,” and qualifying words, “but in such ease,” immediately follow, indicating that the proposition could be voted on in one box, making certain requirements as to ballots in the event of two boxes, it is left to the discretion of the commissioners as to whether one or two boxes shall be used.</p> <p>5. Towns — Bond Issue — Act—Purchasers Bound with Notice. — Purchasers of bonds issued under the in’ovisions of a legislative act are fixed with knowledge of its terms and conditions .</p>

Civil actios, beard by Justice, J., and a jury, at tbe October Term, 1906, of tbe Superior Court of ScotlaND County. Tbis action was commenced before a justice of tbe peace to recover on an account $150 for goods sold and delivered. Tbe following issues were submitted: 1. Was tbe contract set out in tbe complaint obtained from defendants by tbe false and fraudulent representation of plaintiff ? Answer: Yes. 2.

<p>County Commissioners — Cartway—Private Act — -“Sufficient Reasons” — Jury.—When, under a private act providing that the commissioners shall order a cartway to be laid out over the lands of another by a jury of view, upon “sufficient reason” shown, a-petition is made to the commissioners to lay out a cartway over the defendants’ lands, it is error in the Court below to sustain a demurrer to the complaint alleging that the petitioners have a way of reaching the road in question by going a “long distance” and a “round-about way,” not so convenient to them as the cartway they seels; to have established; that the outlet they were then using was not theirs of right, was held by a precarious tenure, was very bad and rough and increased the distance of travel by two and a half or three miles; the question of “sufficient reason” being one for the jury under proper instructions from the Court, and the reasons assigned not being per se insufficient.</p>

Civil aotioN, tried before Allen, J., and a jury, at May Term, 1906, of tbe Superior Court of BuhcoMbe County. Tbe plaintiff, Susan Orensbaw, brought tbis action to recover damages for injuries sbe received and wbicb were caused, as sbe alleges, by tbe negligence of tbe defendant. At tbe time of- tbe occurrence sbe lived on tbe east side of Bailey Street, in tbe city of Asheville.

Civil actioN to recover on a quantum meruit for labor performed in helping to make a crop, tried before Peebles, J., in Waee Superior- Court, October Term, 1906. The Court submitted these issues: 1. Is the defendant, as executor of S. D. Perry, indebted to the plaintiff ? Answer: No. 2. If so, in what sum? Answer: None. The Court dismissed the action, and plaintiff excepted and appealed.

Civil actiost, tried before Moore, and a jury, at October Term, 1906, of tbe Superior Court of Dukham County. Tbis action is prosecuted by plaintiff, appearing by bis next friend, for tbe purpose of recovering damages for injuries sustained while in tbe employment of defendant. In bis complaint be alleges: 1. That tbe Blackwell Durham Tobacco Company is a corporation duly organized under tbe laws of New Jersey, but having an office and its factory in the city of Durham. 2.

PetxtioN and Motion of the defendants, The American Tobacco Company and Blackwell’s Durham Tobacco Company, for the removal of this cause to the Circuit Court of the United States for the Eastern District of North Carolina, beard before bis Honor, Moore, Jat tbe August Term, 1906, of tbe Superior Court of Durham County.

<p>1. Tax Deed — Maker—Ex-Sheriff—Revisal 1905, sec. 950. — A tax deed, signed and executed by one who was the Sheriff of the county at the time of the sale of land for taxes, after the expiration of his term of office, as “ex-sheriff,” is authorized by Revisal, 1905, sec. 950, and is to that extent valid.</p> <p>2. Same — After Two Years From Sale Day — Statute—Void.—Under the Daws of 1901 eh.. 588, and the Revisal 1905, sec. 2905, a tax deed made by a sheriff more than “two years from the day of sale of the real estate for taxes,” etc., is void, the authority of the Sheriff to make the deed being solely derived from the statute, the statute being capable of a strict construction only, the time limitation must be observed.</p> <p>3. Same — Purchaser—Money Paid — Lien.—A purchaser of land at a tax sale under the statute, subsequently acquiring an invalid title by reason of insufficient description, or void for not having been made within the statutory time, is entitled to have the amount he has paid therefor declared a lien on the land in his favor.</p>

Civil acticot to recover damages for personal injuries caused by the alleged negligence of defendant, and tried before bis Honor, Jones, J., and a jury, at September Term, 1906, Superior Court of New IIaNovee County. Tbe three ordinary issues in actions of this character were responded to by the jury: 1. As to negligence on part of defendant causing the injury. 2. Contributory negligence on part of plaintiff. 3. Damages.

Civil aotioN, tried before Ferguson, J.} and a jury, at December Term, 1906, of tbe Superior Court of EaNdolph County. The plaintiff alleged that her father, the late George A. Faust, died intestate 6 May, 1902, leaving surviving his four children, the defendants John C. Faust, George M. Faust, Elvira Saunders, and herself.

Civil ACTION, tried on demurrer by defendant, before Moore, J., and a jury, at October Term, 1906, Superior Court of Orange County.

Civil aotioN, heard before Moore and a jury, at January Term, 1907, of the Superior Court of Ikedell County. .

Special PROCEEDING for tbe settlement of tbe estate of Erwin Medlin, beard before Moore, J., and a jury, at February Term, 1906, of tbe Superior Court of UNION County. Erwin Medlin died in 1901, leaving a will in wbicb be appointed bis sons, Myers Medlin and John D Medlin, executors. His widow, Lydia P. Medlin, died in 1904, and Myers Medlin qualified as ber administrator.

Civil actioN, tried before Ward, J,, and a jury, at August Term, 1906, of the Superior Court of SuRRV County, upon appeal from a court of a justice of the peace. Pertinent fficts stated in the opinion. Erom a judgment for plaintiff, defendant appealed.

Civil NOTION, tried before Ward, Jat tbe December Term, 1906, of tbe Superior Court oPFoesyti-i County. Tbis was an action by O. S. Hutter, made in tbe cause as stated. His Honor, upon tbe pleadings and tbe record, found tbe following facts: That' an action was brought in tbe Superior Court of Forsyth County in tbe name of F. E. Shober and others against W. IT.

<p>1. Telegraph Companies — -Stare Decisis. — Under the doctrine of stare decisis, the Supreme Court should, adhere to its own decisions unless it clearly appears that they are wrong.</p> <p>2. Same — Damages—Place of Contract- — Conflict of Laws. — The liability of a telegraph company for damages for mental anguish, for negligence in transmitting telegraphic messages from its office in one State to that of another for delivery, is determined by the laws of the State in which the message was received for transmission.</p>

Civil aotioN to recover damages for personal injury received while in defendant’s employment, tried at December Term, 1906, of tbe Superior Court of Eoesyth County, Ward, J., presiding. Tbe following issues were submitted to tbe jury: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: No. 2. Did tbe plaintiff by ber own negligence contribute to ber injury? Tbe plaintiff moved for a new trial. Motion denied.

<p>Contract — Exhibit—Expenses—Recovery.—While costs and expenses are recoverable upon the breach, by defendant of its duty under a contract to exhibit a certain machine of plaintiff for the purpose of advertisement and prospective sales of the same, they are such only as the plaintiff may have actually incurred in making the exhibit yvhich it was the defendant’s duty to do; when the plaintiff has made no such exhibit, it has incurred no expense or cost therein, and none, therefore, are recoverable.</p>

Civil actioN for malicious prosecution, tried before Justice, Jv and a jury, at October'Term,. 1906, Superior Court of Anson County.

Civil actioN to recover possession of a storehouse, commenced before a justice of tbe peace and tried on appeal before Justice, J., at January Term, 1907, Superior Court of Durham County. A jury trial having been formally waived, the facts were found by the Court; and judgment was entered thereon for defendant, and plaintiff excepted and appealed.

<p>Civil actioN, beard before Ferguson, J., at the March Term, 1906, of the Superior Court of Eoesyti-i County, upon the complaint, amended complaint and answer.</p> <p>The plaintiff, by his next friend, who is his mother, sues to recover damages for personal injury alleged to have been caused by the negligence of the defendant. The defendant filed an answer, but when the cause came on for trial moved to dismiss because the complaint does not state a cause of action. His Honor, Ferguson, J., sustained the motion and plaintiff appealed.</p>

Civil actioN, heard on exceptions to the report of a referee before Ward, J., at the August Term, 1906, of the Superior Court of Subby County. The plaintiffs alleged that W. H. Schaub sold and conveyed a tract of land to J. B. Smith for $1,000. Smith paid $200 and -executed a deed of trust with power of sale to W. O. Schaub to secure the balance.

<p>ApplicatioN for writ of mandamus to compel defendant to reinstate plaintiff as a company licensed and entitled to transact business in the State, tried before J ones, J., at February Term, 1901, Superior Court of WaKe County.</p> <p>There was judgment for plaintiff, and defendant excepted and appealed.</p>

Civil aotioN for damages to land by water, tried before Ward, J., and a jury, at the November Term, 1906, of the Superior Court of Sueby County. Action for damages to the bottom lands of the plaintiff by water overflowing the track of the defendant and pond-ing thereon.

Civil actioN, tried before Ward, J., and a jury, at January Term, 1907, of the Superior Court of Oabaebus County. Plaintiffs seek to have a deed, executed by Sarah A. Hudson to defendant, cancelled for that she did not have, at the time of executing the same, sufficient mental capacity to understand the force and effect of her act. The only issue submitted to the jury was directed to that question.

Civil agtioN, tried by Webb, J., and a jury, at October Term, 1906, of the Superior Court of Oababbus County, brought to recover the amount of certain debts originally due by the G. W. Patterson Manufacturing Company. The Court submitted these issues:. 1.

Civil actioN, tried before Ward, and a jury, at September Term, 1906, of the Superior Court of Eobsyth County. The plaintiff sues to have cancellation of record of a certain deed in trust, executed by her to defendant D. H. Blair,' and for other relief.

<p>MotioN to reinstate appeal.</p>

<p>1. Corporation — Sale of Entire Assets — -Rights of Creditors. — All the directors and stockholders of a corporation may not sell practically the entire assets of the corporation for their own benefit and advantage, upon a consideration moving to themselves alone, to the prejudice of the rights of its creditors.</p> <p>2 Same — Fraud in Law — Equity Follows Assets — Recovery.—It is the duty of the directors to preserve the assets of the corporation and administer them for the benefit of the creditors; therefore, when one corporation attempts to buy practically the entire assets of another from all of the directors and stockholders, paying therefor the stock of the purchasing corporation at par, but worth less than par, and subsequently becoming worthless, and reserving for the payment of debts of the selling corporation a certain amount of'said stock, the transaction is fraudulent in law as to the creditors, and void; and equity will follow the assets into the hands of other than dona -fULe creditors or purchasers for value and compel them to be applied to the satisfaction of the debts, or, if not available, their value may be recovered.</p> <p>3. Same — Bona Fide Purchaser for Value. — A corporation purchasing almost the entire assets of another corporation, paying the individual directors and stockholders therefor, and not ascertaining and providing for the debts of the other corporation, is not an innocent purchaser for value, without notice.</p> <p>4. Same — Liability of Purchasing Corporation — Of Officers and Directors of Selling Corporation. — A corporation purchasing from the officers and stockholders of another corporation almost its entire assets, without provision for the creditors, is, with such officers and directors, jointly and severally liable to the receiver ■ of the defunct selling corporation for the amount necessary to pay the claims existing against it, interest and costs.</p> <p>5. Same — Amount and Extent of Recovery. — When the selling cor-Xjoration is insolvent, and its receiver is required to share ratably in the assets of the purchasing corporation, also insolvent and in a receiver’s hands, he can prove against it an amount equaling the full value of the goods purchased, but not more may be recovered than will be enough to' pay the amount due the creditors.</p> <p>C. Same — Liability—Charter Provisions — Officers—Torts—Statute. The charter provisions, that “no stockholder of the corporation shall be individually liable for any debt, liability, contract, tort, omission or engagement of the corporation or any other stockholder therein,” does not interfere with the just and equitable principle, also embodied in Revisal, sec. 1102, holding the stockholders who are directors liable for a joint tort or misfeasance committed by them to the prejudice of creditors.</p>

<p>1. Deed — Sale Under Mortgage — Fraud—Undue Influence — Notice to Mortgagor — Estoppel.—In the absence of a suggestion of fraud, undue influence or other ground recognized in equity as sufficient to avoid the execution of a mortgage, the mortgagor is estopped from asserting her title as against that of a purchaser under a mortgage sale regularly made, and, in the absence of a stipulation therein requiring it, notice of sale is not required to be given her.</p> <p>2. Same — Foreclosure—Statute of Limitations — “Color.”—The defendant holding adverse possession without color of title for ten years, or for any period of time less than twenty years, after the foreclosure sale of the land described in her mortgage and the commissioner’s deed to the plaintiffs therefor, does not toll the entry or defeat the plaintiffs’ right of recovery. I-Ier former title is not such color as may be ripened into a good title by seven years’ adverse possession, it having passed to the purchaser at the sale.</p>

<p>1. Cases Consolidated on Trial — Separate Appeals. — Where actions are united and tried together in the Court below for the sake of convenience, and not consolidated in the sense that they thereby became one action, nor within Revisal, secs. 469 and 411, and the verdict being substantially different as to each party, separate appeals should be taken.</p> <p>2. Railroads — Passengers —■ Negligence —Damages.—Compensatory damages may be recovered of the defendant for failure of the engineer to stop a train at a flag station when he should have stopped upon being signalled, he having failed to see the plaintiffs’ signals by reason of negligence in not keeping a proper lookout, ana plaintiffs being ready to pay tbeir fare and to take the train from that station to another on defendant’s road.</p> <p>3. Same — Punitive Damages. — Defendant is liable to plaintiffs for such punitive damages, in addition to compensatory damages, as the jury may see fit to award, upon its engineer wilfully refusing to stop the train at a flag station, where it should have stopped under the circumstances.</p> <p>4. Same — Relief Accorded — Negligence—• Suit Upon Contract — Tort. Relief should be given according to the facts alleged and established in a civil action under Revisal, sec. 354, presenting one form of action for the enforcement of private rights and the redress of private wrongs. It makes no difference whether the plaintiff elects to sue upon contract or in tort, forms of action having been abolished.</p> <p>5. Same — Measure of Damages. — The plaintiffs’ measure of damages, arising from the defendant’s responsible negligence in failing to transport him from one station on its road to another station thereon, are those arising from personal annoyance, inconvenience, discomfort and physical effort incident, in this case, to plaintiffs having walked to their destination, a distance of about a mile and a half, and it was error in the Court below to instruct the jury that plaintiffs should have waited for the next train passing in the afternoon in order to recover for the delay and inconvenience in doing so, as otherwise they could not show actual damages.</p>

IIbahiNG- on preliminary injunction before bis Honor, Ward, J., at September Term, 1906, of tbe Superior Court' of Eoesyth County.

<p>Civil actioN, beard by Guión, J., at Special Term, 1907, of tbe Superior Court of Caldwell County. His Honor found tbe facts under an agreement of tbe parties.</p> <p>Tbis is an action for tbe specific performance of a contract to convey certain lands described, in tbe complaint. Upon tbe pleadings, admissions and records in evidence his Honor found tbe following facts and conclusions of law:</p> <p>On 21 August, 1901, tbe Caldwell Company executed an option contract to plaintiff Shakespeare, wherein it contracted and agreed, upon the performance by Shakespeare of each and every condition precedent therein named, to sell and convey to said Shakespeare the eighty-six tracts of land particularly described therein, “and together with any other lands in Caldwell County, N. 0., in which tbe said Caldwell Land and Lumber Company has any interest, legal or equitable, whether said lands stand in the name of that company or in the name of any other person as trustee for or representative of that Company.”</p> <p>The Caldwell Company, under said contract, on 13 February, 1902, conveyed to plaintiff the eighty-six tracts of land mentioned in the contract, some equitable interests it then had in the county, the stock of the railroad company, but did not convey the “Williams'lands,” which then stood in the name of J. M. Bernhart, as trustee of the Caldwell Company.</p> <p>Shakespeare, in order to'secure the balance of the purchase-money, reconveyed the lands that had been conveyed to him, in mortgage also executed by his wife, to the defendant Caldwell Company; but this mortgage did not include the lands in controversy.</p> <p>In April, 1902, Shakespeare conveyed to the Penncarden Company the lands that had been conveyed to him, subject to the mortgage he had hitherto executed to the Caldwell Company. This conveyance did not include the lands called the “Williams lands.”</p> <p>On 10 November, 1903, the Caldwell Company instituted an action in the Superior Court of Caldwell County against plaintiff and his wife, the Penncarden Company, and the Railroad Company, the purpose whereof was the foreclosure of the mortgage that had been executed by plaintiff Shakespeare to secure the balance of the purchase-money for said lands therein described and the capital stock of the Railroad Company. The complaint in that action does not describe the lands in controversy. No answer was filed by the defendants, or any of them, and the time therefor was enlarged, by consent, until 30 April, 1904, “-without prejudice.”</p> <p>On 5 April, 1904, the Penncarden Company and the Caldwell Company entered into an agreement for the compromise of said action, in which said agreement it. is recited: “Whereas the Caldwell Land and Lumber Company has brought suit for foreclosure upon a mortgage covering the real estate of the Penncarden Lumber and Manufacturing Company, in Caldwell County, North Carolina, and the capital stock of the Caldwell and Northern Railroad Company; and whereas all parties to said suit have agreed to settle the same by the -Caldwell Land and Lumber Company taking a conveyance from the Penncarden Lumber and Manufacturing Company of the real estate, mills, machinery, plant, and other property covered by the mortgage upon which foreclosure proceedings have been begun, and also of the capital stock of the Caldwell and Northern Railroad Company,” tbe Caldwell Company agreeing to pay the Penn-carden Company, as a consideration therefor, the sum of $15,000.</p> <p>Whereupon, the parties to said agreement “covenant to and with each other as follows: 1. That the foreclosure proceedings and the collateral proceedings thereunder shall be marked discontinued by the Caldwell Land and Lumber Company.” Plaintiff was not a party to this agreement.</p> <p>On 12 April, 1904, a judgment was filed in the Clerk’s office of Caldwell County, rendered upon the foregoing agreement: “That it being made to appear to' the satisfaction of the Court that all matters of difference between the parties to the said cause have been adjusted and compromised, it is now, on motion of plaintiff, the defendants all consenting thereto, ordered that the orders entered in said cause appointing a receiver, etc., are hereby vacated and dissolved; and, by like consent of all of said parties, it is further ordered, adjudged, and decreed that the said above action be, and the same is hereby, discontinued and dismissed.”</p> <p>The parties went to trial upon the record of the present and former suits, and the Court found the facts from said records. To the finding of facts there is no exception, only to the conclusions of law of the Court upon such findings.</p> <p>The findings of the Court below are: That the Caldwell Company did contract to sell and convey to plaintiff all lands and interests in lands owned by it in Caldwell County; that under said contract .said company did not convey all lands owned by it at the date of said contract'; that the lands in controversy belonged to said defendant at the date of said contract, and that said lands are now the property of said company; that the said lands were omitted from the deed to plaintiff from defendant by mutual mistake; that plaintiff mortgaged to the Caldwell Company all the lands conveyed to him other than the lands in controversy; that said mortgage did not include the lands in controversy; that plaintiff conveyed to the Penncarden Company all the lands that had been conveyed to plaintiff; that the Caldwell Company instituted an action in tire Superior Court of Caldwell County against plaintiff and the Penn-carden Company for the foreclosure of said mortgage, and that the final judgment was as set forth in defendant’s answer; that plaintiff is estopped by the said proceeding’ and the admission of the judgment in this action to maintain this action; that being so estopped, plaintiff, therefore, is not entitled to specific performance.</p> <p>The plaintiff admitted the rendition of the judgment pleaded and the Court, upon an inspection of the record, was of the opinion that the plaintiff in' this action could have and should have set up his cause of- action in this suit as matter of defense in said former action.</p> <p>The plaintiff excepted to his Honor’s conclusions of law, based upon the findings of fact, for that:</p> <p>1. That plaintiff was estopped by the judgment of 12-April, 1904, to assert any claim to the land in controversy.</p> <p>2. That he was not entitled to specific performance of the contract with respect to said) land.</p> <p>Erom a judgment in accordance with these conclusions of fact and of law, plaintiff appealed.</p>

Civil aotioN, tried before Guión, and a jury, at January Special Term of the Superior Court of Caldwell County. Erom a judgment in favor of defendant the plaintiff excepted and appealed. The facts are sufficiently stated in the' opinion.

<p>Judgment — Matters Embraced — Substantially the Same Counterclaim — Estoppel.—The cause of action embraced by the pleadings is determined by the judgment .thereon, whether every point . thereof is actually decided by verdict and judgment, or not. Defendants having recovered upon a counter-claim for damages against plaintiff in a former action, upon a note given for machinery purchased, on the ground that the machinery was .unsuitable and unslsillfully set up, etc., are estopped to again set up substantially the same counter-claim in an action brought by plaintiff upon another note, subsequently maturing, given for the same purpose.</p>

<p>1. Deed — Certificate—Married Women — '"Color."—A deed made by husband and wife is not “color” of title when the certificate is insufficient in not showing that the husband acknowledged its execution or that the privy examination of the wife had been taken, it not appearing that it was offered as evidence of a common-law deed for purposes of “color.”</p> <p>2. Same — Correction of Certificate. — A justice of the peace cannot correct his certificate made to a deed after his term of office has expired, such authority not having been given by statute.</p>

Civil aotioN, beard by Justice, J., at chambers in Ruth- ■ erfordton, on 10 November, 1906. - This action was brought to recover penalties under Re-visal, sec. 2633, for failure to deliver goods shipped over the defendant’s line of railway from without the State to Ruth-erfordton, in this State, after tender of the freight charges, and was heard upon a ease agreed, which is as follows: 1.

<p>Attorney and Client — Authority of Attorney — Judgment—Motion to Set Aside.- — Upon the appearance of record of a' reputable attorney for bis client, ample authority of the attorney to act as such is assumed by the Court, which ordinarily cannot be questioned; therefore, a motion to set aside a judgment entered upon an agreed statement of facts, on the ground that the attorney who signed the agreement for the defendant misunderstood the extent of his authority, and that the statement should first have been submitted to the division counsel, was properly denied.</p>

<p>Civil ACTION, tried before W. R. ATlm, Jr., and a jury, at January Term, 1907, of tbe Superior Court of MecKLBNbueg County.</p> <p>Tbis case was before us at a former term (143 N.- 0., 115). The plaintiff entered a caboose car of tbe defendant, which was attached to one of its freight trains at Gastonia, as a passenger, intending to go to Charlotte. The jury, upon issues submitted by the Court, found that he was a passenger and that he was injured by the negligence of the defendant, but that he was guilty of contributory negligence. The caboose was divided by the partition into two compartments, the rear one for passengers and the front one for the employees and their tools and implements. The two were constructed somewhat alike, each having a seat on the side running lengthwise of the car. The day on which the plaintiff was injured was warm and the rear compartment of the caboose was uncomfortable, not being as veil ventilated as the front. The plaintiff went into the front compartment, there being a door in the front of the car and a window on the side and both being open. He sat on the side seat and commenced to make entries in his notebook. After he had taken his seat, a flagman, apparently in charge of " the caboose, asked him if he was going to' remain on the car. Plaintiff rejflied that he was going to Charlotte, whereupon the flagman asked him to look after the caboose, while he was away, which he consented to do. When the plaintiff had been seated about twenty minutes the caboose was jerked violently by the backing of the freight cars against it with “tremendous force,” and he was thrown against the door, which was out of order; his hand was caught and badly lacerated, torn, and mashed, so that he suffered great pain, the hand being permanently injured.</p> <p>The plaintiff testified that the conductor consented to his boarding the caboose where it was, though he politely notified the plaintiff that it would be drawn up to the station and if he waited he could get on it there. The plaintiff requested the Court to give the following instruction, which was refused, except as given in the charge: “It is not negligence per s& for a passenger to enter a car at a station in apparent readiness to receive passengers a few minutes ahead of the time fixed by the rules of the company for receiving passengers; nor is it negligence per se for the plaintiff, after boarding the caboose where he did, to fail to look to see if cars were being backed against the caboose; nor was it negligence per se for the plaintiff to get on the caboose if it was detached from the engine at the time he entered; nor was it negligence per se for the plaintiff to get into the apartment of the car he did when he entered the caboose; and if the jury so find, and further find that the plaintiff was in the exercise of ordinary care when he entered the car and when he was injured, then the jury should answer the third issue ‘No.’ ”</p> <p>The Court charged the jury as follows: “On the third issue the burden is upon the defendant to satisfy you, by the greater weight of the evidence, that the plaintiff was negligent, and that that negligence was the proximate cause of the injury to him. The question of the contributory negligence of the plaintiff is to be determined by his conduct after he got upon the car and dependent solely on that. It was the duty of the plaintiff to exercise his intelligence and senses and to observe the condition of the car, and if by the exercise of ordinary care he could have discovered the rear part of the car was provided for passengers and the front not, and for his own convenience and comfort he went to the front section and sat down near the door, he was guilty of contributory negligence, and you will answer the third issue ‘Tes.’ If, however, either end was used for passengers, it would not be negligence for the plaintiff to go into the front end of the car. If, however, he could not discover, by the exercise of ordinary care, that the front end of the ear was not used for passengers, then it would not be negligence to go in there, but it would be his duty then to exercise ordinary care, if, by the use 'of ordinary care, he could discover that it was dangerous.”</p> <p>There was judgment for the defendant upon the verdict, and the plaintiff appealed.</p>

Civil actioh, beard oil demurrer to complaint, before his Honor, Guión, J., at January Term, 1907, of Superior Court of McDowell County. There was judgment sustaining the demurrer, and the plaintiff excepted and appealed.

<p>Civil actioN, tried before Brycm, J., and a jury, at November Term, 1906, of tbe Superior Court of Caldwell County.</p> <p>Erom a judgment' for plaintiff, defendant appealed.</p>

<p>MotioN in a civil action for enjoining the sale of tbe ward’s land by tbe guardian, beard by Guión, J., at March Term, 1901, of tbe Superior Court of Burke County.</p> <p>Mrs. Laura Carswell was adjudged by tbe Clerk of tbe Superior Court, in a proceeding instituted before him, to be an idiot, unable to attend to her affairs. Tbe petitioner J. P. Propst was appointed her guardian.</p> <p>In. a few days after bis appointment be filed bis petition in tbe Superior Court, setting forth that bis ward was tbe owner of an undivided one-fiftb interest in a tract of land covered by a dower; that she bad no other property, and derived no income from said land; that her co-tenant bad offered to sell their interest in tbe land for some eight hundred dollars for each share; that a sale of the interest of his ward would promote her interest, and that Mrs. Gertrude Propst, who is the wife of petitioner and daughter of his ward, bad offered $1,050 for said interest, which sum was á full and fair price therefor. The petition was in due form and, upon the facts set forth, a sale of the land was proper. The Clerk, finding the facts to be true, made an order on 18 February, 1907, directing a sale to Mrs. Gertrude Propst for the said sum of $1,050. This order was approved by the Judge presiding in the Fourteenth Judicial District. On the same day the guardian reported to the Court that he had made sale of the land to Mrs. Gertrude Propst for the said sum of $1,050, and that the same was a fair price, etc. On the same day the Clerk made an order confirming said sale, the order of confirmation concluding as follows: “And the said guardian is hereby directed and authorized to execute a deed therefor upon payment of the purchase-money.” This order was also approved by the Judge.</p> <p>On 6 March, 1907, Mrs. Laura Carswell filed an affidavit in the cause, setting forth that she is a widow with two children; that for the past sixteen years, since the death of her husband, she has managed her own affairs; that about the last of- January, 1907, she joined with her brothers and sisters in the sale of the land to the State Hospital. That afterwards, to-wit, 2 February, 1907, a notice was served on her at about 11 o’clock to appear at 12 o’clock, on the same day, at Morganton, for some purpose she did not understand; that sbe Avas in tbe country and did not and could not attend; that she is informed that some proceeding was had in which she was adjudged to be an idiot, and that petitioner had been appointed her guardian; that she has been informed that her said guardian, on or about 25 February, 1907, sold her interest in her father’s estate, which she had, prior to his appointment, sold and conveyed to the State Hospital. She asked that the sale be set aside and that her guardian be removed.</p> <p>His Honor, Judge Guion, who had approved the orders in the cause, upon this affidavit made an order reciting the facts set out, and further reciting that no- money had been paid by Mrs. Propst for- the land, directing the guardian to show cause, before him, at Morganton on 21 March, 1907, why the sale should not be set aside. That pending the hearing of the motion, the said guardian and purchaser be enjoined from interfering with or disposing of the lands, etc. Upon the return day the guardian and Mrs. Gertrude Propst appeared and moved the Court to dismiss the motion, etc., for thát:</p> <p>1st. The Court had no jurisdiction to set aside the sale and the deed made pursuant thereto, etc.</p> <p>2d. That no motion could be made in the cause because no cause was then pending; that a final decree had been made therein, etc.</p> <p>3d. That Laura Carswell, having been declared a lunatic and having a guardian, cannot make any motion or maintain any action in the premises.</p> <p>4th. That it appears upon the face of the affidavit that Laura Carswell had conveyed her interest in the land to the State Hospital and has no interest therein.</p> <p>5 th. Por a misjoinder of motions, the removal of her guardian, and setting aside the sale, etc.</p> <p>Respondents filed an answer to the motion, setting forth at length the status of Mrs. Carswell and her property. That she had executed a deed to the State Hospital for her interest in the land for some three hundred dollars less than the amount for which it was sold by the guardian; that she was not competent to make the sale or execute the deed; that the proceeding to have a guardian appointed for her was instituted by her two children, for the purpose of protecting her interest and having her estate preserved; that she was dependent upon her family and friends for support, etc. It is not stated that any money had been paid by Mrs. Propst for the land. His Honor, upon hearing the affidavit, made an order continuing the injunction to the hearing of the motion, from which Mrs. Propst appealed to this Court, assigning as error the refusal of his Honor to dismiss the motion, upon each and every one of the grounds assigned, etc.</p>

Civil actios, tried before Guión, J., and a jury, at January Term, 1907, of tbe Superior Court of McDowell County. Prom a judgment for tbe defendant, plaintiff appealed.

<p>I. Street Railways — Evidence—Negligence.—In an action for damages arising from the alleged negligence of the defendant in the derailment of its street car, causing injury to the plaintiff, evidence that other cars had run off at the same place is incompetent when it is not shown that the condition at or near the time it was alleged other cars ran off was the same as at the time the plaintiff was injured, and that the accident was “the most usual” result of the existing conditions.</p> <p>2. Same — Duty of Railway Company — Track—Negligence—Prima Facie Case — Burden of Proof. — It was the duty of the defendant railway company to keep its track properly constructed and in proper condition, also its car and motive power, and to have it operated by competent persons in a proper manner. When a derailment is shown,' a prima facie case is made out, and tbe burden is upon the defendant to show that the injury was occasioned by an accident.</p> <p>3. Same — -Contributory Negligence — -Issues—-Prayers for instruction. — When the questions of negligence and contributory negligence arise in an action for the recovery of damages, an issue as to each should be submitted, and the prayers for special instruction should be appropriately addressed to each, so as to avoid confusion.</p> <p>(The doctrines of “burden of proof,” “burden of the issue” and “prima facie case” discussed and distinguished).</p>

<p>Civil actioN, tried before Goolce, J., and a jury, at December Term, 1906, of tbe Superior Court of Buiike County. '</p> <p>Plaintiffs sue for a trespass upon the land described in the complaint. They allege that they are the owners of a tract of land situate in Burke County, conveyed by B. A. Berry to their father, Isaac Eincannon, 31 March, 1816: “Beginning on a rock near a small branch 22 poles north of the railroad, the same being the corner of a tract of land owned by the heirs of S. A. Sudderth, deceased, or the heirs of John Sudderth, deceased, and known as the Johnson tract, and runs west with the line of the Sudderth tract 228 poles to a stake in the old Jonathan Duckworth line, then south, etc., making’ a parallelogram containing 90 acres. They allege that they and their ancestor have been in the possession of the land more than twenty years, and that defendants trespassed upon it and cut and carried away valuable timber. Defendants own the Sudderth-Johnson land, lying adjacent to and north of the Eincannon land. The strip of. land in controversy lies between the line shown on the map (140 N. C., 247), beginning at a post-oak, “L,” .and running east along a marked line to stake “K,” and the line beginning at a rock, “E,” and running west to a stake, “G.” The plaintiffs insist that the original southern line of the Sudderth-Johnson tract runs from the post-oak east to a stake. An issue was submitted to the jury directed to that contention and found against plaintiffs. The defendants contended that, at the time of and cotemporaneous Avith the deed from Berry to Eincannon, a line was run, by direction of Berry and assented to by Eincannon, fixing the beginning of the tract- to be conveyed at the rock and running west to the Duckworth line at “G.” To meet this contention, his Honor submitted the following issue: “At the time of the execution of the' deed by Berry to Isaac Eincannon, and just before and cotemporaneous therewith, and for this purpose, did the parties to the said deed, by consent, adopt the rock claimed by defendants as the corner of the land surveyed, and did they then survey the line from the said rock west, along the line of marked trees, 228 poles, to a stake in the old Jonathan Duckworth line, indicated by the red line on the map, and did they, by consent, adopt the said line as the true line of the Eincannon tract and as tbe true line of tbe Suddertb-Johnson tract ?” He instructed them upon said issue: “Upon tbe third issue tbe Court instructs tbe jury that tbe burden is upon tbe defendants, and before you can answer either one of these issues ‘Yes’ you must be satisfied that tbe parties to the deed by consent adopted tbe rock as tbe corner and that they bad tbe line running west from said rock surveyed 228 poles to a stake in the Duckworth line, and that they found on said line marked trees, and found pointers when the line reached the Duckworth line, and that by consent they adopted this line as the true line, and this was cotemporaneous with and for the purpose of executing the deed, then they should answer that issue ‘Yes’; if they shall not so find they should answer the issue ‘No.’ ” They responded to the issue, “Yes.” An issue was submitted, directed to the question of plaintiffs’ alleged possession up to the line beginning at the post-oak for twenty-one years (evidently intended to be twenty), which was answered “No.”</p> <p>The fifth issue, “Are the plaintiffs the owners and entitled to the possession of the land between the red and black lines ?” — being the land in controversy — may by consent be answered by his Honor as a conclusion of law arising upon the answer by the jury to the other issues. The jury found that no trespass had been committed on the land “as alleged in the complaint.” The plaintiffs claimed title as the heirs of 'Isaac Eincannon, whose death, intestate, was shown. They also put in evidence two deeds executed by him: (1) To W. A. Eincannon, dated 21 April, 1887, containing the following calls: Beginning at a white-oak, and running north 70 poles, crossing the railroad to a stake in Berry’s line; thence west with Berry’s line, 120 poles, to a stake at his corner; thence south 70 poles and east 120 poles,, crossing the railroad, to the beginning, containing 52 acres. The white-oak called for as the beginning is located south of the point marked (Spring) on tbe map, thus forming a parallelogram of 120 by 70 poles. The Berry line called for is the same as the Sudderth line referred to in the other deeds. (2) Deed of same date to D. C. Eincannon. (3) Deed of same date to T. A. Eincannon. It is not necessary to set out the boundaries in these deeds.</p> <p>The plaintiffs asked a number of special instructions, excepted to the refusal to give several of them, and to the instructions given. His Honor, upon the verdict of the jury upon the other issues, answered the fifth issue “No,” to which .plaintiffs duly excepted. Erom a judgment on the verdict plaintiffs appealed.</p>

MotioN in tbe cause to set aside a judgment by default and inquiry, beard by Guión, J., at February Term, 1907, of tbe Superior Court of' RutheRKobd County. Motion granted, and plaintiff appealed. Tbe facts sufficiently appear in tbe opinion.

Civil actioN, tried before Ward, J., and* a jury, at August Term, 1906, of tbe Superior Court of Suery County. At tbe conclusion of tbe evidence tbe Court sustained a motion as of nonsuit. Plaintiff appealed.

<p>Civil actiok, tried before Jones, J., and a jury, at November Term, 1906, of the Superior Court of Duplik County.</p>

PetitioN for sale of lands for division, transferred from Superior Court Clerk and heard before Cooke, J., at April Term, 1907, Superior Court of Transylvania County. Defendants excepted to an order by which the cause was referred for the purpose of stating an account of the estate of William Duckworth, under whom the parties claimed, in order to ascertain whether any of the claimants had been fully advanced, and appealed.

<p>Referee’s Report — Confirmation—Evidence.—When there is competent evidence to sustain the findings of fact by the referee, and his report is confirmed by the Judge below, it will not be disturbed.</p>

<p>Insurance — Contract—Fraud—Waiver.—In an action upon a policy of life insurance alleged to have been induced by the false representations of the defendant’s agent, the plaintiff by his conduct may waive the right to rely upon such representations. The plaintiff appearing to be an intelligent person, it was error in the court below to refuse to charge the jury upon defendant’s request: “The plaintiff admits that at the time he received the policy he could have read it; that nothing was done by any agent of the company to keep him from reading it; that he put the policy away and several years thereafter he heard a general rumor that the company would not live up to the statements made by the agents; that he then read the policy, or such portions thereof as he saw proper; and the Court instructs the jury that, this being the evidence of the plaintiff himself, you will, on the whole evidence,” find for the defendant.</p>

Civil aotioN? tried before Word, J., and a jury, at March Term, 1907, of the Superior Court of MeckleNburo County. Upon the close of plaintiffs’ evidence, his Honor directed a verdict as of nonsuit, and the plaintiff appealed. The pertinent facts are set out in the opinion of the Court.

AotioN against tbe Eegister of Deeds of Buncombe County to recover a penalty for tbe issuance of a marriage license for a female under eighteen years of age, tried before Moore, J., and a jury, at April Term, 1906. Judgment, signed by W. B. Allen, J., at May Term, 1906, of tbe Superior Court of BunooMbe County, for plaintiff. Defendant appealed. Pertinent facts stated in tbe opinion of tbe Court.

AotioN to recover damages for personal injuries, tried at October Term, 1906, of the Superior Oourt of Buncombe county, before O. LI. Allen, J., and a jury. The usual issues of negligence, contributory negligence and damage were submitted. The findings were in favor of the plaintiff. Erom the judgment rendered, the defendant appealed.

MotioN to revive the above-entitled dormant judgment, heard on appeal from the Clerk by O. H. Allen, Jat September Term, 1906, of Buncombe County Superior Court. From the order of his Honor affirming the judgment of the Clerk the defendants appealed.

Civil actioN to recover damages for delay in shipment of goods by express, tried before Bryan, J., and a jury, at November Term, 1906, Superior Court of Caldwell County. Erom judgment of nonsuit plaintiff appealed. G. E. Harper, for plaintiff, and being the only witness examined, testified as follows: “I am a member of the firm trading under the name of The Harper Furniture Company, and am general manager of the same.

Civil ACTION, tried before O. H. Allen, J., and a jury, at October Term, 1906, of tbe Superior Court of Madison County. Plaintiff sues upon certain notes executed by defendants, payable to H. T. Eumbough, tbe consideration being tbe purchase-money of a parcel of land, for tbe conveyance of which, upon payment of the notes, the payee executed a bond.

Civil actioN, tried before O. S. Allen, J., and a jury, at August Term, 1906, of tbe Superior Court of TraNsylvaNia County. The plaintiff seeks to have the defendant declared a trustee for his benefit, in respect to the land described in the complaint.

Civil aotioN for specific performance of a contract for tbe sale of land, tried before Ward, Jand a jury, at November Term, 1906, of tbe Superior Court of SuitRY County.

<p>1. Insurance — Contract—Evidence—Nonsuit.—It is error in the court below to dismiss an action upon a contract of insurance as on judgment of nonsuit under the I-Iinsdale Act upon the evidence, when there is testimony tending to prove that there was a complete and definite contract of insurance between the intestate and defendant company as contained in the policy, and no evidence tending to show that the contract was ever modified or rescinded.</p> <p>2. Same — Policy Del ¡vereda — -When a policy of insurance which complies with the application has been unconditionally delivered, in the absence of fraud it is conclusive evidence that the contract exists between the parties.</p> <p>3. Same — Acceptance.—-Acceptance by the insurance company of the applicant need not necessarily be evidenced by physical possession by the insured of the policy, as delivery is largely a question of intent, frequently indicated by mailing a letter in due course containing an unconditional acceptance, or by sending the policy to an agent with instructions for unconditional delivery, where there is no contravening stipulation in the contract itself.</p> <p>4.Same — Evidence—Declarations—Questions for Jury. — The physical delivery by the company of the policy of insurance to the applicant thereof makes out a prima facAe case that there is a completed contract of insurance as contained in tire policy; but the effect of sucli physical delivery can be qualified and explained, 'and, on issue properly joined, pertinent declarations of plaintiff’s intestate made at the time, or afterwards, when against the interest of declarant, may be relevant as testimony on the question.</p> <p>5. Same — Policy Forms — Alterations—Judicial Notice. — The Court takes judicial notice that policies of insurance are gotten up on printed forms designed to meet the average and general demand in contracts of this nature, and frequently changes are made to meet special conditions; in the absence of special circumstances tending to cast suspicion thereupon, entries by marginal notes and “pasters” on the policy raises no presumption of alteration, but the nature of the entry and its placing are simply circumstances on the general question for the jury as to a completed contract.</p> <p>6. Sam» — Cancellation—Mutual Consent. — While a contract of insurance may be set aside by mutual consent upon a sufficient consideration, until such is effected it remains binding. If the insured, acting under an erroneous impression that the policy was not such as he had agreed to take, returned it and said he would not pay his notes given therefor, and the company did not accept the proposition unconditionally, such conduct was nothing more than a proposal to cancel, and upon the death of the insured. before acceptance the negotiation was off and the contract of insurance remained effective.</p>

<p>PROCEEDING under entry laws (Reyisal, cb. 37), tried before Guión, J., at February Term, 1907, of the Superior Court of Rutherford County.</p> <p>Tbe defendant, Carpenter, entered a certain parcel of land, and tbe plaintiff, Walker, filed bis protest. Thereupon tbe matter came by proper process under the statute before tbe Superior Court for trial. His Honor submitted tbe following issue without objection: Is tbe land described in tbe protest and entry vacant and unappropriated? Answer: No. Erom a judgment for plaintiff, defendant appealed.</p>

<p>Negligence — Damages—Proximate Cause. — Proximate cause “is an essential ingredient of actionable negligence, as a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any naan of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.” The defendant company -is not responsible in damages, as the proximate cause of the injury, in permitting large stacks of lumber and quantities of tan bark to be placed by its patrons, for shipment, on its right-of-way and partly in the adjacent street, by means of which a fire, originating in a building off its right-of-way and owned and controlled by another person, was indirectly c'om-municated to plaintiff’s building and destroyed it.</p>

<p>1. Nonsuit — Evidence—Contract—Nominal Damages. — It is error to sustain a motion as of nonsuit when there is evidence tending to show a breach of contract of sale; if such be proved-, nominal damages are at least recoverable.</p> <p>2.’ Same — Measure of Damages. — When there is evidence tending to show a breach of contract in the respect of the construction and perfectness of a machine sold by defendant, that plaintiff notified defendant of its declining to receive the machine, but at the request of defendant repeatedly tried it, which resulted in the defendant remedying it so it then proved to be perfect and capable- of doing the work for which it was constructed, the plaintiff’s measure of damages is a recovery of all extra expense incurred while trying the imperfect machine as well as such damages as were reasonable within the contemplation of the parties at the time the contract was made.</p> <p>3. Same — Breach of Warranty — Collateral Contracts. — In an action against the seller for breach of warranty of sawmill machinery, the purchaser cannot recover for loss of profits in lumber contracted to be sold, if such contract was not known to the seller.</p>

, at the February Term, 1907, of the Superior Court of BuNcombe County. This action was brought to recover damages for the death of plaintiffs intestate, 'which is alleged to have been caused by the negligence of the defendants. The intestate was killed in a wreck resulting from the collision of two trains which were moving in opposite directions on the road of the railway company.

Civil actiost, beard upon a motion for an injunction before Justice, J., at March Term, 1907, of the Superior Court of Dubham: County. Erom a judgment for the plaintiff the defendant appealed. This ease was before the Court at a former term and is reported in 141 N. C., at-p. 615. When the case came on to be heard at March Term of the Superior Court it was adjudged that the injunction issued by Judge Ferguson be made perpetual.

Civil actioN, tried before McNeal, J., and a jury, at March Term, 1906, of tbe Superior Court of SwaiN County. Erom a judgment for plaintiffs, defendant appealed. The facts sufficiently appear in the opinion.

Civil action, tried before O. H. Allen, J., trial by jury being waived by consent, at the Spring Term, 1907, of the Superior Court of MacoN County. Erom a judgment for plaintiff, defendant appealed.

<p>Railroads — Contracts—Conditions—Forfeiture.—A railroad company cannot avoid a forfeiture under a time limit for the construction of its line of road, unless it substantially complies with the provision therefor in its deed.</p> <p>(The opinion in McDowell v. Railway (next above) controls the disposition of this appeal).</p>

, at the February Term, 1907, of the Superior Court of Buncombe County. Plaintiff, a North Carolina corporation, alleges: That the General Assembly of this State, at its session of 1854-’55, incorporated “The Western North Carolina Railroad Company,” chapter 228, Private Laws 1854-’55. It sets forth several acts amending the charter of said company, the provisions of which are not material to the point presented upon this appeal.

Civil actioN, tried on appeal from a justice' of the peace, before W. B. Allen, J., at October Term, 1906, Superior Court ,of SwaiN County. The action was to recover $190, alleged to be due by note of defendant company given to plaintiff, which was unpaid.

<p>Slaves — Marriage—Validity—Act of March, 1866 — Evidence.—When it is not shown that the marriage of two slaves has come within the provision of the act of March, 1866, declarations of the woman claiming the man as her husband, and “general reputation” thereof, are incompetent as evidence of a lawful marriage, to legalize the issue born of them.</p>

<p>Civil actioN, tried before W. R. Allen, J., at Fall- Term, 1906, of the Superior Court of Oi-ieroeee County. From a judgment for plaintiff, the defendant appealed.</p>

<p>Reference — Exceptions Must be Definite. — A right to a trial by jury is waived unless order of reference is excepted to definitely and specifically, pointing out specific facts upon which it is demanded.</p>