Volume 147 — North Carolina Reports

Civil actioN, tried before W. R. Allen, Jand a jury, at November Term, 1907, of the Superior Court of Beetie County. Tbis action was brought to recover damages for negligently delaying to deliver a telegram which was sent from Ahoskie, N. C., to Maysville, N. 0., by the feme plaintiff, Mrs. Gerock, in the name of her father and agent, J. A. Copeland, to her husband, M. 0. Gerock, in care of his brother, C. 0. Gerock.

Civil actioN, tried by Neal, J., upon injunction proceedings, at September Term, 1907, of tbe Superior Court of Edgecombe County. From an order continuing tbe injunction to tbe bearing defendants appealed.

Civil aotioN to try title to land, tried at November Term, 1907, oí tbe Superior Court of Pitt County, before Lyon, J., and a jury. Tbe issues submitted by tbe court, together with responses of tbe jury, are as follows: “1. Are tbe plaintiffs tbe owners and entitled to tbe possession of tbe twenty acres of land described in tbe complaint ?” Answer: “Yes.” “2. If so, wbat is the rental value of said land per year ?” Answer: “Fifty dollars.” “3.

<p>Civil actioN, appeal from the court of a justice of the peace, heard by Neal, J., at October Term, 1907, of the Superior Court of Edgecombe- County.</p> <p>The action was brought in the justice’s court to recover the sum of $175, the proceeds of a negotiable note. At the trial in the Superior Court the Judge ruled that the* action was necessarily in tort and that the justice had no jurisdiction, and dismissed it. The plaintiff appealed.</p> <p>The facts are sufficiently stated in the opinion of The Court.</p>

<p>' 1. Pleadings — Joint Demurrer — Cause of Action Against One Defendant.</p> <p>. When two defendants join in a demurrer to the complaint, and a good cause of action is stated as to one of them, the demurrer will be overruled.</p> <p>2. Corporations — Sued by Officer — Services—Quantum Meruit — Express Promise.</p> <p>An officer of a corporation cannot sue his company upon quaiv-turn meruit for services rendered. In order to sustain an action he must jirove an express promise.</p> <p>3. Same — Resolution by Directors — Nudum Pactum.</p> <p>A resolution of a board of directors authorizing payment to an officer of the corporation for past services, unsupported by a promise to pay for them before they were rendered, is nudwn pactum, and will not support an action for recovery.</p> <p>4. Corporations — Sued by Officer — Services—Promise of Stockholders Enforceable — Fraud.</p> <p>The express promise of the stockholders to pay a stipulated price to one to perform services as president and attorney is valid, binding and enforceable upon the corporation, when not in fraud of the rights of creditors.</p>

Civil actiox, tried before Lyon, J., and a jury, at June Term, 1907, of the Superior Court of Halifax County. • The defendant company, being the owner of standing timber on the lands described in the pleadings, entered into a contract in writing with W. T. Ferrell, by which he was to cut and remove the trees to the railroad.

Civil actioN for tbe recovery of a money demand, beard at March Term, 19 OY, of the Superior Court of Mae/tiN County, before Biggs, Jand a jury. The court submitted the following issues: “1. Is the defendant indebted to the plaintiff ? If so, in what amount?” Answer: “Three hundred and ninety-two dollars and eighteen cents, with interest on $362.18 from 3 September, 1895, and interest on $29 from 15 July, 1900.” “2.

Civil aotioN to recover for injury to vessel of plaintiffs, caused by alleged negligence on tbe part of defendant, tried before Lyon, J., and a jury, at Eall Term, 1907, of tbe Superior Court of Carteret County. Verdict and judgment for plaintiffs, and defendant excepted and .appealed. Tbe facts are sufficiently stated in the opinion of tbe Court.

Civil actioN, tried before W. B. Allen, J., and a jury, at Special Term, 1907, of tbe Superior Court of OamdeN County.

<p>Civil ACTION, tried before Biggs, J., and a jury, at December Term, 1907, of tbe Superior Court of New IIaNovee County.</p> <p>Judgment for plaintiff. Defendant Ileide appealed.</p>

Civil aotiok, tried on appeal from a judgment of a justice of the peace, before Goimcill, J., and a ’jury, at May Term, 1907, of the Superior Court of Catawba County. This is an action for the recovery of a penalty, under section 2632 of the Revisai, the plaintiff alleging an unreasonable delay in the transportation of a carload of marble from Atlanta, in the State of Georgia, to Hickory, in this State.

<p>1. Appeal and Error — No Case — Motion to Dismiss — Motion to Affirm.</p> <p>A motion to dismiss because there is no case on appeal must be denied. The proper motion is to affirm the judgment below.</p> <p>2. Same — No Case — Motion to Dismiss — Supreme Court — inspecting Record- — Ex Mero Motu.</p> <p>When there is no motion to affirm the judgment below and the appeal is not properly constituted in the Supreme Court, it ' is the duty of the court, ex mero motu, to inspect the record proper for errors.</p> <p>3. Same — Injunction—Case on Appeal — Exception to Judgment Below.</p> <p>On appeal from an order granting or refusing an injunction, the pleadings and the affidavits constitute the record proper, and no “case on appeal” is necessary, as the facts are reviewable by the Supreme Court, and the mere fact of appeal is itself an exception to the only action of the Judge — the judgment.</p> <p>4. County Commissioners — License to Sell Liquor — Elections—Presumption of Validity Conclusive — Trial by Jury.</p> <p>There is a final and conclusive presumption in favor of the correctness of the result of an election as declared by the proper officials, until the issues raised by the pleadings have been tried and disposed of before the jury; and in the meanwhile an injunction will not lie against the county commissioners for the issuance of license to sell liquor, under allegations of defects and vital irregularities in an election held upon the question of prohibition, and denied by the answer.</p>

Civil actioN, beard oil appeal from a judgment of a justice of the peace, before Ward, J., and a jury, at Spring Term, 1907, of tlie Superior Court of OlevelaNd County. Erom judgment for plaintiff defendant appealed. The facts sufficiently appear in the opinion of the Court.

Civil actioN, tried before Lyon, J., and a jury, at November Term, 1907, of the Superior Court of CeaveN County.

Civil aotioN, appeal from a judgment of a justice of the peace, heard before Ward, Jand a jury, at Spring Term, 1907, of the Superior Court of Cleveland County. Judgment for plaintiff, and defendant- appealed. The facts sufficiently appear in the opinion of the Court.

<p>1. Railroads — Penalty Statutes — Transportation—Consignor—Party Aggrieved. .■</p> <p>When the consignor had agreed with the consignee that the latter was only required to pay for the intrastate shipment when it reached its destination, the consignor may maintain his action for delay m transitu (Revisal, sec. 2632), as the party aggrieved.</p> <p>2. Railroads — Penalty Statutes — Transportation—Constitutional Law.</p> <p>The provision of Revisal, sec. 2632, imposing a penalty upon railroad companies for failure in their duty to transport goods, is constitutional and valid.</p> <p>3. Railroads — Penalty Statutes — Transportation—Issues.</p> <p>In an action against a railroad company under Revisal, 2632, for a penalty for failure in its duty to transport freight, an issue is objectionable when it is tbe only one and in tbe following language: “Wbat amount, if any, is tbe plaintiff entitled to recover of tbe defendant, on account of tbe failure to promptly ship tbe carload of lumber?”</p> <p>4. Same.</p> <p>An issue wliicb presupposes a failure on defendant’s part in its duty to transport freight, in an action for penalty, Revisal, 2632, is objectionable. (Attention is called to tbe proper issues as suggested in Sanwiclo v. Railroad, at tliis term).</p> <p>5. Railroads — Penalty Statutes — Transportation—Ordinary Time — ■ Verdict Directing — -Instructions—Evidence—Questions for Jury.</p> <p>In an action for tbe recovery of a penalty under Revisal, 2632, it was for tbe jury to find wbat was “ordinary” time, under tbe surrounding ■ circumstances, and whether tbe defendant transported freight within such time; also, the amount of recovery after allowing for tbe “lay days,” etc., provided by the statute. Hence, it was error for the court below to instruct the jury, if they believed the evidence, to answer tbe issue in a certain way or in a sum certain.</p>

Oivil ACTION, tried before Biggs, J., and a jury, at August Term, 1907, of the Superior Court of Duplin County.

<p>1. Water and Water Courses — Drainage—Revisal, 4016 — Judgment Not Set Aside — Motion.</p> <p>In an action brought for the drainage of lands under Revisal, 4016 et seq., the judgment upon motion thereafter made will not be set aside merely upon the ground that a similar proceeding had been prosecuted to judgment between several of the parties.</p> <p>2. Water and Water Courses — Judgment—Motion to Set Aside— When Made — Estoppel.</p> <p>If a former judgment in a similar proceeding has not been pleaded in an action for drainage of lands under Revisal, 4016, as an estoppel or res ailjuclieata, beiore final judgment; tlie party-relying thereon must move the court within one year to set the judgment aside for excusable mistake or inadvertence. (Revisal, 513).</p> <p>3. Water and Water Courses — Drainage—Statutes—Interpretation.</p> <p>While the various statutes for the drainage of swamp lands in Eastern North Carolina have not the same provisions in all respects, they have been collected and are to be found in Revisal, ch. 88, and should be construed to harmonize and constitute, with such variations, a system of drainage laws for the State, and are constitutional.</p> <p>4. Water and Water Courses — Drainage—Revisal, 4017 — Commissioners’ Report — Cost of Work Apportioned.</p> <p>The cost of the work to be done in the drainage of lands under Revisal, 3996, is not required under section 4017, and cannot, for its uncertainty of amount, be set out in the report of the commissioners appointed. It is a compliance with the statutes when the portion of the work to be done by the landowners is set out.</p> <p>5. Same — Notice Required.</p> <p>Before any specific amount may be adjudged against a landowner as a lien on his land, under proceedings for the drainage of lands, he is entitled to be heard, after notice, as to whether the assessment made by the commissioners was unjust or oppressive.</p> <p>6. Water and Water Courses — Drainage—Judgment—Oppressive Assessment.</p> <p>As to whether the judgment could be modified to meet the ends of justice regarding an oppressive assessment of costs against lands in a proceeding for drainage, qucere.</p>

Civil actioN, tried before Biggs, J., and a jury, at November Term, 1907, of the Superior Court of Duplin County. The defendant Norris, on 10 August, 1904, executed to Mrs. Susan E. Tbigpen a mortgage on real estate to secure tire payment of four notes, the consideration being tbe purchase money of the land mortgaged.

Civil actioN, beard on appeal from a judgment of a justice of the peace, before Biggs, J., at July Term, 1907, of the Superior Court of New HaNOvee County. Plaintiff sues defendant, master of schooner II. E. Thompson, for recovery of pilotage fees, pursuant to provisions of chapter 625, Public Laws 1907.

Civil action, tried, before Lyon, J., and a jury, at November Term, 1907, of the Superior Court of Pitt County. The facts are sufficiently stated in the opinion of the Court.

Civil actioN, tried before Biggs, J., and a jury, at December Term, 1901, of the Superior Court of New IIaNOVER. County. The evidence tended to show that plaintiff sold and delivered to Einch & Person, a partnership composed of S. II.

<p>Civil aotio-N to recover laud, tried on case agreed, before Neal, J., at October Term, 1901, of tbe Superior Court of Edgecombe County.</p> <p>From’the facts agreed it appeared tbat Elisha Harrell died domiciled aud resident in Edgecombe County, seized and possessed of the land in controversy, and leaving him surviving his widow, Anne Eliza Harrell, and several sons and daughters ; that item 2 of the will of Elisha Harrell, duly executed and admitted to probate in said county, contained the following devise: “I lend unto my wife, Anne Eliza Harrell, 290 acres of land during her natural life or widowhood; at the death or marriage of my said wife, I give and bequeath unto my four youngest children, Armitha Harrell, Opperlina Harrell, Rebecca Harrell and Louisa Harrell, the above-named 290 acres of land, known as follows: * * * And, if either or all of the above girls die without leaving a lawful heir, my will and desire is that the said lands be equally divided between my two sons, John Harrell and Jesse Harrell. ”</p> <p>2. That during the life of the widow, Anne Eliza Harrell, the 290 acres of land were actually and equally parceled out among the four daughters mentioned in item 2 of the will, and each of said daughters was put in possession of her respective share.</p> <p>3. That Anne Eliza Harrell, widow of Elisha, died on 5 March, 1903, not having remarried.</p> <p>4. That Louisa Harrell, one of the four daughters mentioned in item 2 of the will, intermarried with one Richard Webb, in January, 1898, and died 12 September, 1902, intestate and without ever having had a child; that John and Jesse Harrell, mentioned in item 2 of the will, are dead, and plaintiffs are their descendants and only heirs at law; that Opperlina Harrell died domiciled in said State and county, in October, 1906, leaving two illegitimate children, who are defendants; that said Opperlina Harrell was never married and had no children at her father’s death.</p> <p>The action is to recover that portion of the 290 acres of land devised by item 2 of Elisha Harrell’s will which was set apart to Opperlina Harrell, the plaintiffs being, as stated, the descendants and only heirs at law of John and Jesse Harrell, .and defendants the illegitimate children of Opperlina.</p> <p>On the facts stated, the court being of the opinion that plaintiffs -were the owners of the land in controversy, judgment was entered in their favor, and defendants excepted and 'appealed.</p>

Civil actioN, tried before Lyon, J., and a jury, at June Term, 1907, of the Superior Court of Halifax County. The facts are sufficiently stated in the opinion of the Court.

Civil actiost, beard upon demurrer to complaint, by Neal, J., at September Term, 1901, of tbe Superior Court of VaNCE County. Tbis action was brought to recover damages for injury to tbe plaintiff’s premises, situated on Poplar (or Charles) Street, by tbe improper construction of a granolithic sidewalk in front of tbe same.

<p>1. Telegraph Companies — Negligence—Two Messages — -Question at Issue.</p> <p>When the complaint alleges damages on account of plaintiff’s being prevented by negligence of defendant from attending the funeral of his deceased father, and there were two messages, one announcing the dying condition and the other the death, place of burial, etc., the real question at issue turns upon the second message.</p> <p>2. Telegraph Companies — Instructions, Incomplete — Special Delivery Charges.</p> <p>When prayers for special instruction in a suit against a telegraph company for negligent delay in delivering a telegram, for which special delivery charges were claimed by defendant, state that the addressee lived five or sis miles from the telegraph office, and the evidence disclosed that it was not more than four, it was not error of the court below to refuse to give them.</p> <p>S. Telegraph Companies — -instructions—Negligence—Office Hours.</p> <p>The following instruction as to the office of a telegraph company being closed at night was properly refused: “The company is not bound either to deliver, send or receive a message after office hours, unless by course of dealing or custom it has waived such hours, and a message so received may be held and delivered in a reasonable time after opening of office hours next day.”</p> <p>4. Telegraph Companies — Instructions—Abstractions.</p> <p>When the prayer for instruction presents an abstraction,’ and not the material facts and legal conclusions therefrom involved in the proposition, its refusal is not reversible error.</p> <p>5. Telegraph Companies — -Office Hours — Terminal Office — Special Delivery Charges Required — Service Message — Duty of Terminal Office.</p> <p>When it appears that the terminal office of transmission of a telegram received it after office hours, that a special delivery’ charge was necessary for delivery, and that the message could have been delivered the next morning had such charges been paid, it is the duty of the terminal office, when consistent with the office hours at the other points, to immediately wire back as to the extra charges, when that course would have secured such charges and enabled the defendant to deliver the message in time to avoid the injury the following morning.</p> <p>6. Telegraph Companies — Negligence in Delivery — Proximate Cause.</p> <p>When, notwithstanding the negligence of the defendant, the plaintiff could have taken a train and arrived in time for the funeral of his deceased father, and made no effort to do so, his negligence would be the proximate cause of the injury and would bar his recovery in a suit for the damages alleged on account of being prevented from attending the funeral.</p>

ActioN tried before Neal, J., at November Term, 1907, of Nash. This is a proceeding under tbe statute, commenced before the Clerk of the Court, for processioning the lands of the parties and ascertaining the true boundary lines. John L. Bailey is one of the defendants. Before the commencement of the proceeding he contracted to sell his tract of land to A. B. Robbins for $375, of which sum, it is alleged in the affidavit of the appellee, Bettie Bailey, $175 was paid in cash.

<p>1. Damages — Declarations, when Competent — Personal Injury — Subsequent Suffering — Evidence.</p> <p>While the declaration of the plaintiff, in a suit for damages for personal injury, is not competent evidence when given by another witness, it is not objectionable when given by the plaintiff in person, and he will be permitted to testify that since the injury was inflicted he had suffered from extreme nervousness and “nightmares.”</p> <p>2. Damages — Declarations, when Competent — Personal Injury — Subsequent Suffering — Evidence—Expert.</p> <p>Evidence is competent tending to show that, since the injury complained of, and not before, the plaintiff has suffered from nervousness and excessive “nightmares,” as corroborative of the expert evidence of a physician regarding the effects of the bodily injury received.</p> <p>3. Appeal and Error — Assignment of Error — Abandoned—Brief.</p> <p>An assignment of error, on appeal to the Supreme Court, not stated in the brief of appellant will be deemed abandoned.</p>

<p>ActioN tried before Lyon, J., and a jury, at November Term, 1901, of Pitt.</p> <p>Plaintiff appealed. Tbe facts are stated in tbe opinion of tbe Court.</p>

ActioN tried before Lyon, J., from Graved, November Term, 1907. This action was heard upon the complaint and demurrer. Plaintiff alleged: 1. That the defendant Norfolk and Southern Railway Company is organized and existing according to law, and that at all times herein mentioned it was engaged in operating railroads in said State and elsewhere. 2.

<p>ActioN tried before Lyon, J., at November Term, 1907, of GRAVEN.</p> <p>Tbis is an action brought by the plaintiff to enjoin the defendants from collecting certain taxes assessed and levied upon plaintiff’s property in the city of New Bern by the tax assessors of said city, and claimed to be in violation of section 5290 of the Revisal, regulating the assessment of railroad property and providing when and how the said assessments shall be made.</p> <p>The Judge of the Superior Oourt, by consent, found-all the facts and rendered his judgment enjoining the defendants from collecting the tax. Erom the judgment rendered the defendants appealed.</p>

Actioh for damages, tried before Lyon, J., at October Term, 1901, of CbaveN. Motion to nonsuit sustained. Plaintiff appealed. Tbe facts are stated in tbe opinion.

ActxoN tried before Neal, J., and a jury, at October Term, 1907, of EdgeooMbe. Plaintiffs sue to recover the price of goods alleged to have been sold and delivered. Defendant denies that he purchased the goods or is in any way liable for them. The testimony tended to show that defendant applied for and obtained from the county commissioners, January, 1906, and July, 1906, license to sell spirituous liquors at Conetoe, in Edgecombe County.

<p>Appeal and Error — Contentions of Fact.</p> <p>When the case on appeal to the Supreme Court discloses only a contention upon the facts which have been found by the jury, upon proper evidence and issues, and under correct instructions, there is nothing upon which error can be based.</p>

ActioN to recover on a life insurance policy issued by defendant company on tbe life of Matthew Bryant, brought by his widow and beneficiary of the policy, tried before Neal, Jand a jury, at October Term, 1907 of Edgecombe.

ActioN tried before 0. II. Allen, J., and a jury, at December Term, 1907, of EeauKORt. This action was brought to recover damages for negligently failing to transmit and deliver a telegram addressed by the plaintiff to her husband at Greensboro, N. 0. The message was dated 20 June, 1905, and was as follows: “Eaby very sick. Come at once.” She also, at the same time, wrote him a letter, to which he replied on the 21st in a telegram: “Letter received.

ActioN tried before Jones, J., and a jury, at December Term, 1907, of RobesoN. Plaintiffs allege that they are the owners and entitled to the possession of the locus in quo, and that defendants are in the wrongful possession thereof, and they demand judgment.

Actior tried before Biggs, J., and a jury, at August Term, 1907, of Duplin. This action was brought by the plaintiff to recover a one-seventh interest in the land described in the complaint. The tract of land originally belonged to Daniel Glisson, wbo died in April, 1880, leaving a will, in which, a one-seventh interest in the said land was devised to the feme plaintiff.

AotioN beard on notice to dismiss, before Neal, J., at October Term, 1907, of EdgegoMbe. Tbe facts upon wbicb said notice was. considered and determined were as follows: On 1 August, 1884, John Vick, wbo was tbe owner of a tract of land in Edgecombe County, North Carolina, executed to O. 0. Earrar a mortgage on said land to secure a note for $1,474.34, wbicb be owed Earrar and wbicb was due and payable on 1 January, 1885.

<p>1. Assault — Damages—Limitations of Actions — Agreement Not to Plead Statute.</p> <p>In an action to recover damages for an assault it is necessary for the plaintiff, in order to rebut the plea of the one-year statute of limitation [Revisal, sec. 397 (3)], forbearance on his part to sue, to show an agreement with defendant not to plead it, or some conduct on his part which would make it iniquitous for him to do so. Defendant’s promise to investigate the charges and his unaccepted request not to sue at all, without any reference to the statute, are insufficient.</p> <p>2. Same — Writing—Quaere.</p> <p>As to whether a promise not to plead the statute of limitations [Revisal, sec. 397(3)] in an action to recover damages vfor an assault should be in writing, qucere.</p>

ActxoN tried before Jones, and a jury, at October Term, 1907, of CumbeblaNd. The plaintiff alleges that the defendant entered upon his land, dug holes thereon, placed poles and swung wires upon them over and across the land, and thereby occupied and appropriated it to its use; that by such entry and appropriation he has sustained damage, by reason of the decreased value of his land, to the amount of $'200.

AotioN tried before J ones, J., and a jury, at May Term, 1907, of HaRNett. Tbe plaintiffs’ evidence and tbe verdict of the jury tend to establish tbe following facts: Defendant corporation was, some time prior to 16 May, 1903, engaged in building a cotton mill at Duke, a village á few miles distant from Dunn, in Harnett County. E. E. Young, who resided in Dunn, bad prior thereto been the agent of defendant company at Dunn.

<p>AcTioosr to recover damages for tbe death of plaintiff’s intestate, tried before Webb., J., and a jury, at October Term, 1907, of AwsoN.</p> <p>There was a verdict and-judgment against defendant and an appeal therefrom to this Oourt.</p>

ActioN for damages for personal injury, tried before Long, and a jury, at November Term, 1901, of Wayne. Tbe court submitted these issues: “1. Was the plaintiff injured by the negligence of the defendant company ?” Answer: “Yes.” “2. Did the plaintiff by his OAvn negligence contribute to said injuries?” Answer: “No.” “3.

AotioN tried before Neal, J., and a jury, at October Term, 1907, of Edgecombe.

ActioN tried before MeNeill, J., and a jury, at March Term, 1906, of Swain. Defendant appealed. It was argued in' and determined by this Court during the Spring Term, 1901, and no error adjudged. It is again before this Court upon a petition to rehear. The facts are stated in the opinion.

ActioN tried before Jones, J., and a jury, at October Term, 1907, Of CUMBERLAND. This action is prosecuted by tbe feme plaintiff for the purpose of quieting and removing a cloud from the title to her separate real estate. The undisputed facts as disclosed by the record are: The feme plaintiff was, on 21 February, 1895, the owner of the real estate described in the complaint, being a lot in the city of Fayetteville.

<p>1. Contracts — Bought Editorials — Immoral Consideration — Public Policy.</p> <p>A contract with the editor of a newspaper that he was to be paid by defendant railroad company for his editorials is based on an immoral consideration and not enforeible.</p> <p>2. Same — Carrying Municipal Bond Issue.</p> <p>Compensation cannot be recovered upon a contract to aid in carrying an election for a bond issue. Such contract is against - phblic policy and void.</p> <p>3. Same — Pleadings—Demurrer—Good and Unlawful Considerations</p> <p>A demurrer to a complaint in a suit brought for tbe recovery of the value of services rendered should be sustained when the alleged considerations are immoral and against public policy or so mixed up with them as to poison the whole.</p>

<p>ActioN tried before Neal, J., and a jury, at November Term, 1907, of Nash.</p> <p>Defendant appealed. Tbe facts are stated in tbe opinion.</p>

ActioN tried, before J ones, J., and a jury, at October Term, 1907, of CUMBERLAND. Tbe following issues were submitted to tbe jury: . “1. Did tbe defendant wrongfully and fraudulently' convert to bis own use the notes, liens, accounts and cash collections of tbe plaintiff, as alleged?” Answer: “No.” “2.

<p>1. Objections and Exceptions — Appeal and Error — Receivers.</p> <p>When there is no exception taken at the time of or appeal from an order of court appointing a receiver, the receivership continues in full force.</p> <p>2. Appeal and Error — Receivers — Allowance — Excessive — Wrong Principle.</p> <p>When the order of the court below allowing an amount to a receiver for services as such is appealed from and there is no suggestion that the amount was excessive or based upon a wrong principle, the order will not be disturbed.</p> <p>3. Claim and Delivery — Action in Superior Court — Revisal, sec. 1995.</p> <p>When parties, landlord and tenant, have an adequate remedy by claim and delivery, but do not resort to it, they may bring an action in the Superior Court to determine the matters in controversy. Revisal, sec. 1995.</p>

<p>1. Issues — Burden of the Issue.</p> <p>The burden of the issue, in the sense of ultimately proving or establishing it, does not shift from the party upon whom it originally rested.</p> <p>2. Burden of Proof.</p> <p>In accordance with whether the party upon whom is the burden of issue has made a prima facie case, or of other pertinent conditions of the evidence, the burden of proof may shift from one party to another, or back again; but when the burden 'of proof shifts from the party originally bearing it, it is not required of ■ the other party to disprove by the preponderance of the evidence.</p> <p>3. Same — Instructions.</p> <p>. When the plaintiff has made out a prima facie case the burden of proof shifts to the defendant, and the jury should be instructed that, given due weight to the presumption which carries the issue to the jury, the plaintiff must in the end prove his case upon that issue by the greater weight of the whole evidence, his own and that of defendant, when the latter has introduced any.</p> <p>Clark, C. J., and Hoke, J., dissenting, arguen&o.</p>

<p>ActioN tried before ~Webb} J., and a jury, at October Term, 1901, of ANSON.</p> <p>Defendant appealed. Tbe facts are stated in tbe opinion.</p>

<p>1. Deeds and Conveyances — Contemporaneous Endorsements — Construction.</p> <p>A deed and two endorsements thereon, executed contemporaneously, each bearing the signature and seal o£ the grantors, and duly probated and registered together, must be considered as intended for one deed.</p> <p>2. Deeds and Conveyances — Construction—Uses and Trusts — Shifting Uses — Habendum.</p> <p>An endorsement on a deed conveying the fee to lands to J. O. and J. V., reserving to .the grantors a life estate, with the condition “that in the event either J. 0. or J. Y. should die leaving no issue living, then the survivor to inherit all the within-described lands, with the conditions within stated,” when construed with the deed as one instrument, establishes the mater’s intent to convey, and does convey, an estate in. fee to J. O. and J. V., with a shifting use to the survivor in case either should die without issue living at his death; and there is no repugnancy between the deed and the endorsement, whether the latter is considered as a last clause of the deed or as the habendum.</p> <p>3. Uses and Trusts — Limitation of Fee.</p> <p>By a shifting use expressed in a deed a fee may be limited after a fee.</p> <p>4. Deeds and Conveyances — Uses and Trusts — Femes Covert — Probate Defective —Quitclaim — Registration —Seizin —Consideration.</p> <p>E., the owner of land, joined with her husband in the conveyance thereof, and after the death of her husband executed and delivered another deed to the same parties for the land, which expressly referred to the first deed, stating in the premises that it was executed to carry out more effectually the intention and purpose thereof, and reciting that it was made in consideration of said premises and one dollar: Held, (1) that as the first deed of E. was in effect as recited in the premises of the second deed after the death of her husband, she was the owner of the land in fee, and the fact that the deed from herself and husband was void because of a defect in the probate would not affect the interests thereunder acquired as between the parties, as the second deed was sufficient to pass the title; (2) that the registration laws now take the place of livery of seizin, and, when they are complied with, a failure of consideration between the parties under the first deed did not operate to defeat the vesting of the use. (The nature and effect of a quitclaim deed operating as an estoppel discussed by Walker, J.).</p> <p>5. Deeds and Conveyances — Femes Covert — Husband’s Subsequent Execution — 1857—Void Probate.</p> <p>The probate of a deed made by a feme covert in 1857 of her lands is defective when her acknowledgment and privy examination were taken before the execution by her husband was proved.</p> <p>6. Deeds and Conveyances — Quitclaim—No Title — Grantor Not Es-topped.</p> <p>A grantee is not estopped to show that no interest passed to him under a quitclaim deed when the grantor is not estopped to show it. Estoppels must be mutual.</p>

<p>ActxoN beard by O. H. Allen, J., at Kinston, Lenoib County, 30 May, 1907.</p> <p>This is a motion to set aside an order made by the Judge of the Eifth Judicial District at Kinston, N. 'C., on 30 May, 1907, directing A. G. Ricaud, receiver, to sell to R. G. Grady certain timber, the title to which is now in controversy, and also to set aside the deed of the receiver to the purchaser. The motion was made in an action which was originally brought under the statute in the Superior Court of New Plan-over County to settle the affairs of the corporation known as the “Peregoy-Jenkins Company,” and A. G. Ricaud was appointed receiver to take possession of its assets and administer the same for the benefit of the creditors who brought the suit. A mortgage was executed by the Peregoy-Jenkins Company and a sale made thereunder, and by a deed to the purchaser and certain mesne conveyances the timber in controversy is alleged to have been acquired by Charles S. Reilly & Co., but it is not necessary to set out the chain of title in detail. The order permitting the receiver, A. G. Ricaud, to sell the land at private sale to R. G. Grady was made at chambers in Kinston, N. C., without notice to the parties to the action, and at a time when the Superior Court of New Hanover* County, J-udge Long presiding, was actually in session, but the application for the order was made before the court had convened. The motion to set aside the order allowing the receiver to sell the land to R. G. Grady was made by Mr. John D. Bellamy as attorney in behalf of Charles S. Reilly & Co., and also in bebalf of tbe Peregoy-Jenkins Lumber Company, be being attorney of record for tbe last-named company. Mr. Bellamy bas not been specially requested by bis client, tbe Peregoy-Jenkins Lumber Company, to make tbis motion, and bas not beard from them in regal’d to it. At tbe time tbe motion to set aside tbe order allowing tbe receiver to sell was made, an order was issued restraining R. Gi. Grady from disposing of tbe property in controversy. At tbe bearing before tbe Judge be refused to set aside tbe order allowing tbe receiver to sell tbe timber, to R. G. Grady and dissolved tbe restraining order. Tbe parties wbo made tbe motion excepted and appealed.</p>

<p>ActioN tried before W. R. Allen, Jat September Term, 1907, of DuRi-iam.</p> <p>Defendant appealed. -</p>

<p>ActioN tried before Jones, J., and a jury, at February Term, 1908, of Union.</p> <p>Plaintiff appealed. Tbe facts are stated in the opinion.</p>

<p>1. Principal and Agent — Agency to Sell — Purchaser—Agent's Compensation — Ail Over a Fixed Price — Contract, Express.</p> <p>An agreement between principal and agent that the latter is empowered to sell for the former a piece of property and to have all he could obtain for it over a certain price is a valid express contract as to the agent’s compensation, and he is entitled to recover upon the contract in obtaining a purchaser “ready, able and willing” to pay for the property.</p> <p>2. Principal and Agent — Agency to Sell — No Time Limit — Revocation, Notice of.</p> <p>When a principal places his property with an agent to be sold, without specifying a definite time therefor, notice of revocation is necessary to terminate the agency, especially when there is an agreement to that effect.</p> <p>3. Principal and Agent — Agency to Sell — Purchaser Procured — “Ready, Able and Willing” — Evidence Sufficient.</p> <p>An agent to sell property of his principal can corroborate his evidence that his vendee was “ready, able and willing” to comply with the sale by showing that his vendee soon after bought the property, from the one to whom the principal had sold, at the price agreed upon with the agent.</p>

<p>1. Issues, Sufficiency of.</p> <p>Issues are sufficient which enable the parties to present every material phase of the controversy.</p> <p>2. Same — Matters Evidential.</p> <p>Issues tendered upon matters merely evidential and not issuable should be refused.</p> <p>3. Evidence — Opinion—Result of Knowledge and Observation.</p> <p>In an action for recovery for services rendered in cutting logs under a part performance of a contract, under the contention that defendant wrongfully refused to permit plaintiff to cut more and to furnish sufficient rafting gear required, which he had agreed to furnish as a part consideration of the contract, it was competent for witness 'to testify that the rafting gear actually furnished was not “sufficient,” not as a matter of opinion, but the result of knowledge and observation.</p> <p>4”. Contracts — Assignment Unaccepted — Amount Unascertained— Revocation — Defense—Consent of Assignee.</p> <p>An order or request by one on his debtor to pay over to another an unascertained amount, which was not accepted, is revocable and not binding except as to the amounts actually paid thereunder ; and it cannot be set up as a defense in a suit for an unpaid balance due, especially when the - legal representatives of the assignee come into court and ask that judgment below in favor of the assignor be affirmed.</p>

ActioN beard on demurrer before Webb., J., at January Term, 1908, of Durham. Tlie complaint', containing tbe written contract entered into between tbe parties, is as follows: Plaintiffs allege: 1. T'bat on 16 December, 1904, plaintiffs and J. Ii. Howard and A. Lyon entered into a contract of copartnership in tbe words and figures as follows: “Articles of agreement entered into this December 16, 1904, at Durham, N. O., by and between A. Lyon, J. IL.

‘ Aotioh tried before Neal, J., and a jury, at Fall Term, 1907, of Edgecombe. Action for personal injury sustained by the alleged negligence of defendant. The testimony tends to show that the defendant corporation owns and operates as a part of its system a railroad from Plymouth to Tarboro, N. C., for the transportation of freight and passengers; that as said railroad approaches Tarboro from the east it crosses a bridge over the Tar River and the low grounds thereof.

ActioN tried before Webb., J., and a jury, at February Term, 1908, of Gbanvillk . Tbis action was brought to recover a debt of $300 and a stock of goods wbicb the plaintiff alleged had been mortgaged to him by the defendant to secure the indebtedness.

ActioN tried before Justice, J., and a jury, at November Term, 1907, of DavidsoN. This was an action brought to recover $2,000 for services rendered by the feme plaintiff to her father. She alleged that he had agreed to give her one-fourth of his estate in his will if she would continue to live at his'home and work for him.

AcxxoN tried before W. B. Allen, J., and a jury, at September Term, 1901, of Duei-iam. Tbis action -was brought to recover $500, it being the amount of an insurance policy issued 8 November, 1905, by the defendant on the life of Noger Matthews, the husband of the plaintiff, for her benefit. The insured died in November, 1906.

ActioN tried before O. H. Allen, J., and a jury, at July Special Term, 1907, of AlamaNce.

AcxiON tried before Webb, J., and a jury, at February Term, 1908, of Gbanyilue, for personal injury received by being struck by defendant’s train on its track at Bullock, a flag station of defendant company. At tbe conclusion of tlie evidence the court sustained the motion of defendant to nonsuit the plaintiff upon the ground that upon his own evidence he Avas guilty of such contributory negligence as barred recovery. The plaintiff excepted and appealed.

ActioN tried before W. B. Allen, J., .at September Term, 1907, of Durham. Plaintiff, administratrix, sues to recover damages for the death of her intestate, alleged to have been caused by tbe negligence of defendant.

ActioN tried before MVébb, J., at December Term, 1907, of Anson. Tbe defendant demurred to the complaint ore tenus and moved to dismiss i't because it fails to state a cause of action. The court sustained the demurrer and dismissed the action, from which judgment the plaintiff appealed. The facts are stated in the opinion. '

Action tried before Long, J., and a jury, at February Term, 1908, of Cumberland.

<p>Appeal and Error — Questions for Jury.</p> <p>When the examination of the record on appeal discloses a controversy largely of fact, fairly and clearly presented to the jury upon the law, the verdict will not be disturbed.</p>

Actiow tried before Lyon, J., at November Term, 1907, of CRAVEN. A jury trial having been formally waived by the parties, the court heard the testimony and found the facts as follows: 1. The plaintiff is a corporation duly organized and existing under the laws of North Carolina. 2. The defendant is a corporation duly organized and existing under the laws of North Carolina. 3.

<p>Appeal and Error — Order Making Parties — No Prejudice to Appellant Appearing — Premature Appeal.</p> <p>Orders of the lower court making additional parties to an action are usually discretionary, and an appeal therefrom will be dismissed as prematurely taken when it does not appear in what manner the rights of the appellant are prejudiced.</p>

AotioN tried before Webb, J., and a jury, at January Term, 1908, of Dubham. The court submitted these issues: “1. Was plaintiff injured by negligence of defendant, as alleged in the'complaint?” Answer: “Yes.” “2. What damage, if any, has plaintiff sustained?” Answer : “Eive hundred dollars.” From the judgment rendered defendant appealed.

<p>Actios tried before Justice, J., and a jury, at November Term, 1907, of Ibekell.</p> <p>Plaintiff appealed. The facts are stated in the opinion.</p>

<p>1. Legislative Powers — Penalty Statutes — Carriers—Failure to Transport.</p> <p>It is within the power of the Legislature to impose penalties for unreasonable delay by carriers in transporting intrastate freight.</p> <p>2. Penalty Statutes — Carriers—Failure to Transport — Intermediate Points — Car Lots — Distributing Point.</p> <p>When a carload intrastate shipment necessarily is transferred without breaking bulk from one road of the carrier’s system to another thereof at a general distributing point in the carx'ier’s system in order to reach destination, the carrier is allowed thereat the statutory time for transportation at such point as an intermediate point. (Revisal, sec. 2632).</p> <p>3. Penalty Statutes — Carriers—“Transport”—Initial Point — Time Allowed.</p> <p>Under Revisal, sec. 2632, the carrier is allowed two days at tlie initial point for tlie transportation of freight instead of the one day allowed by general statute (Revisal, sec. 887).</p> <p>4. Penalty Statutes — Carriers—“Transport”—Terminal Point — End of Transportation — Time Computed — Warehousemen.</p> <p>The time that transportation ceases, under the meaning of Re-visal, sec. 2632, is when the duty of the carrier as a warehouseman commences, or when the carload had been transported and the consignee notified. Therefore, it was error in the lower court to hold that the transportation ceased when the carload was placed by the carrier within the yard limits of the point of destination, and alsp that the last day on that account was not to be charged against the carrier in computing the time for transportation. (Chapter 461, Laws 1907).</p> <p>5. Penalty Statutes — Carriers—“Transport”—Terminal Points — Sundays — Time Computed.</p> <p>In a suit for penalty against the carrier for failure to transport freight, under Revisal, sec. 2632, the defense that the last day, being Sunday, should not be counted, under Revisal, sec. 887, is unavailable when it is made to appear that the delay chargeable began to run and to be counted from the Saturday preceding; for the charge for delay having once begun to run, it continues to run without deduction for Sundays or holidays.</p> <p>6. Penalty Statutes — Carriers—“Transport”—“Ordinary Time”— Questions for Jury.</p> <p>The question of “ordinary time” for the transportation of freight by the carrier, in a suit for a penalty for failure to transport, under Revisal, sec. 2632, is a question of fact for the jury.</p>

ActioN tried before Webb, J., and a jury, at December Term, 1901, of Anson. Plaintiff appealed. Tbe action was to recover damages for tbe alleged negligent killing of plaintiff’s intestate. Eorty-scven exceptions were entered during tbe progress of tbe trial, tbe last being a motion to dismiss as in judgment of nonsuit, wbicb was allowed by tbe court.

<p>ActioN tried, before J ones, J., and a jury, at March Term, 1907, of Johnston.</p> <p>Defendant appealed.</p>

<p>ActioN heard by Neal, J., at October Term, 1907, of Edgecombe.</p> <p>This action is brought and prosecuted for the purpose (1) of enjoining- the defendant from using and operating engines and cars over its tracks and spur tracks on certain streets in the town of Tarboro; (2) for damages alleged to have been sustained by the laying of the tracks and spur tracks and operating locomotive engines and cars over same; (3) for damages alleged to have been sustained by reason of the negligent and unlawful use of the tracks, constituting a private nuisance, to plaintiff’s injury.</p> <p>A jury trial in respect to the first cause of' action having-been waived, the court found the following facts: On 23 September, 1760, Joseph Howell conveyed to James Moir and five other persons a tract of land lying and being- in Edge-combe County, on the south side of Tar River and described by metes and bounds, containing 150 acres. The consideration named in the deed is five pounds proclamation money of the Province of North Carolina. On 24 September, 1760, the said James Moir and the other grantees named in said deed executed unto the said Joseph Howell a bond under seal in the penal sum of “two thousand pounds proclamation money.” The condition of the bond recited that the said land was to be laid out for “the building and erecting of a town therein”; that they had received authority to lay out in lots the said land, “excepting one lot where the said Howell House now stands and the graveyard and 50 acres for commons for the use of said town, and to dispose of the same lots, not exceeding one-half acre to a lot, * * * and to take subscription for the same at two pounds proclamation money for each lot.” Streets were to> be laid off not exceeding 80 feet in width, etc. The said land was laid off into lots and streets,, and a portion thereof, at least fifty acres, was reserved for the use of the town as a commons for the use of the public, and a map thereof was made and recorded in the office of the Register of Deeds, etc.</p> <p>On 30 November, 1-760, the said land so laid off “was1 constituted, erected and established a town, to be called Tarboro, by act of the Governor, Council and Assembly.” The map or plat was declared by act of Assembly “to be held and deemed the plan and bounds of said town.” The present town of Tarboro has by successive acts of the General Assembly succeeded to the rights, duties and liabilities of the said corporation, trustees, etc. The common so reserved was covered with large oak and other trees, used and dedicated to the public for park purposes. By act of the General Assembly, passed 27 December, 1852, the commissioners of said town were authorized to lay off into lots and streets, in conformity with the plan of said town as then established, the whole or any portion of the common, as then existing, lying on the western side thereof, between the inhabited portion thereof and Hendricks Creek, the western portion of said town, and to sell such lots at public sale. Pursuant to said act the commissioners laid off into lots and streets that portion of the common described in said statute. Albemarle Avenue runs north and south; Wilson Street runs east and west, crossing the avenue; Hendricks Street runs west of and parallel with the said avenue; all of which fully appears by reference to the plat filed in the record. The streets are 7 0 feet wide and were duly laid off and dedicated to the use of the public. The lot formed by the intersection of Albemarle Avenue ,and Wilson Street, known as Lot 122, was sold by the commissioners pursuant to the provisions of said act. By successive conveyances the title vested in plaintiff, 1 February, 1872. It is described in the deed to him as “bounded on the north by Wilson Street, on the east by Williamston and Tarboro Railroad, south by St. John Street, west by the new street, being Lot 122 in the plat of the town.” The boundary called “Williamston and Tarboro Railroad” is now Albemarle Avenue and the “new street” is now Hendricks Street. “The location of plaintiff’s lot was desirable as a residence, the surroundings pleasant, easy of access, and the air in and about said lot pure, wholesome and uncontaminated; the said lot commanded an unobstructed view and use of said street and the common lying directly north and northeast of it on the opposite side of Wilson Street.” There are large shade trees and a magnolia on the sidewalk.</p> <p>The Williamston and Tarboro Railroad Company was incorporated by the General Assembly, by chapter 139, Laws 1860. By successive acts of the General Assembly the defendant corporation has succeeded to and acquired all of the rights, privileges, etc., of said company. (See Staton v. Bail-road, 144 N. 0., 135). The road of the defendant was constructed in 1870, prior to the time plaintiff purchased. The defendant entered upon the said street and built its track as indicated in said ordinance, and is using it as a railroad under and by virtue of all of its and predecessors’ chartered rights and privileges and by virtue of the town ordinance passed as follows:</p> <p>“At a call meeting this day. Present, all the commissioners. Ordered that the ordinance of the town on the 3d of December, 1869, be amended ‘so as to allow the Williams-ton and Tarboro Railroad Company to construct their road track from Tar River along and through Hendricks Street to the Little Creek north of the town commons.’ ”</p> <p>Little Creek is the northern terminus of the original Howell deed to the town of T'arboro, and the nearest point is about 85 yards north and in front of plaintiff’s premises. The land on the north side of Little Creek was private property, and the railroad was extended across Little Creek to make connection with the Rocky Mount branch of the Wilmington and Weldon Railroad.</p> <p>In the year 1889, without the consent of the plaintiff, the defendant constructed and has since so maintained and operated a steam railroad spur track leading from Albemarle Avenue, north of Wilson Street, curving diagonally across that portion of the common opposite plaintiff’s premises and lying on the opposite side of Wilson Street, continuing diagonally across Wilson Street in front of plaintiff’s premises and down said street to a point west of said joremises on Wilson Street; and thereafter, in 1902, and without the consent of this plaintiff, it constructed and has since so maintained and operated a steam railroad spur track branching from said curved track at a point on Wilson Street in front of plaintiff’s premises, crossing said street diagonally, crossing plaintiff’s sidewalk and continuing diagonally across and along Hendricks Street on the westerly side of plaintiff’s premises. The first spur track was to. a cotton factory one-quarter of a mile away, and the other to the electric power house owned by the town. These spur trades were built and constructed by virtue of and under the same rights as the main line, save in this, that the ordinance for the spur tracks was passed immediately prior to the construction thereof. Since said road was constructed and within recent years there has been a material increase in the traffic on said road.</p> <p>Under the charter of the town of Tarboro as it existed on 25 May, 1869, there was no provision authorizing and empowering the town commissioners to make any disposition of public streets other than that provided for in the general or public laws and in chapter 9 of an act of the General Assembly of North Carolina passed 30 November, 1760.</p> <p>The town of Tarboro, under its charter and amendments thereto, had at the time the spur tracks were built no authority to use its streets for railroad purposes, unless such authority was conferred by the general public statute (Eevisal, ch. 73).</p> <p>His Honor, upon the foregoing facts, was of the opinion that plaintiff was barred of any relief except for nuisances committed within three years prior to the commencement of the action. Plaintiff excepted.</p> <p>The plaintiff introduced the following evidence on the issue as to nuisances: The track on Albemarle Avenue is within 25 feet of sidewalk. The spur track is 90 feet from residence, 105 feet from front door. The house fronts east and north; second spur track on west side of house. Eailroad runs diagonally across Hendricks Street into the waterworks and electric light plant of the town, on the north, east and west of plaintiff’s residence. No depot there. “Prior to 26 September, 1906 (date of summons), they were allowing cars of all sorts to remain on that spur track and unloading-theatrical troupes, circuses and fertilizers. They allowed these people to stay there quite a while; allowed vacant cars to remain there, which were frequently slept in by negroes. They allowed engines to' remain there at night, and the escaping steam made a great noise. Plaintiff would complain and the engineer would not move the ‘engine. He said he came down there for his meals; it was near his house and it was for his convenience. Then plaintiff complained to the agent and used every means he could to get it away. * * * At night steam was up and escaping, and continuing to remain there all night long and at all hours of the night. Next morning the fire in the engine would be started from 3 to 5 o’clock. Plaintiff’s family were continuously kept awake, but they became accustomed to the noises, etc. * * * Wood, coal and almost every conceivable thing were kept there. Some fertilizers were unloaded and left on tlie side of the cars. Sometimes wood was sawed and left there. Cars were left and remained there, and various kinds of tramps slept in them, sometimes for days.” Agent said he would do the best he could. Negro minstrel troupes have been unloaded there; also dog and pony shows. Carnivals would stay there for a week, making noises at night, sometimes being drunk and fighting. Carnival paraphernalia would be thrown out, such as old bedding, on the sidewalk. “They leave a little of everything there — iron piping, telephone poles, bricks, rocks and sometimes hay, corn and oats.” They frequently had cars right on the corner across the sidewalk. Oars sometimes ran off; curve very sharp.' There is talking and cursing by the hands trying to get the engine and cars on the track. Cars sometimes stall there. There are two freight depots in Tarboro — one north and the other south of residences. Sparks and smoke from engine stopping in front of house on spur track injured shade trees. Plaintiff estimates damage to his property at $5,000, caused by the “manner in which the road has been managed.” When circuses were unloaded in front of the house'whiskey bottles would be on the sidewalk and dirty bags piled on sidewalk “right in front of door.” Plaintiff’s family have lost sleep and become nervous from noises, etc.</p> <p>At the conclusion of plaintiff’s testimony defendant moved for judgment of nonsuit. Motion allowed. Plaintiff excepted and appealed.</p>

<p>1. Railroads — Duty to Passengers — Negligence—Train at Full Stop— Contributory Negligence — Nonsuit—Questions for Jury.</p> <p>A railroad company is held to a high degree of care in providing at its regular stations places where passengers may alight with safety from its trains. Therefore, when the evidence tended to show that plaintiffs, passengers on defendant’s train, were thrown therefrom, when at a full stop at their place of destination, by two sudden jerks of the engine while they were on the platform hesitating to alight at a dangerous place they knew not to be the regular stopping place, but which was the only stopping place used at that station on that trip, it was error in the lower court to sustain defendant’s motion as of nonsuit upon the evidence upon the ground of contributory negligence. (Shato v. Railroad, 143 N. C., 312, cited and distinguished).</p> <p>2. Railroads — Stopping Places for Passengers — Duty of Railroad.</p> <p>The obligations of a railroad company to provide a place of safety for passengers at its regular stations is not performed by stopping their trains before they reach their usual place or in stopping at such place with cars on parallel tracks so close together that by the projection of cars over the rail passengers, in order to enter or alight from trains, are forced into a crowded passway, where the slightest motion of either train or a rush of passengers themselves is not unlikely to result in painful and at times serious or even fatal injuries.</p>

Action beard on return to a temporary restraining order before Webb., J., at January Term, 1908, of Guilfobd. Tbe complaint .alleged and there was evidence tending to show: 1. That the plaintiffs are residents and citizens of the county and State aforesaid, and reside on Chestnut Street, in the city of Greensboro. 2.

AotioN beard by Jones, J., at chambers, from RobesoN, 19 December, 1907. This action was brought for a mandamus. The summons w.as returned before the Judge at chambers on 1 December, 1901.

ActioN beard by Long, J., at October Term, 1907, of Wake. This is a civil action brought by plaintiff as trustee in bankruptcy of tlie above-named corporation to recover of defendant a large balance alleged to be due on an account for lumber furnished defendant, and for damages alleged to have been sustained by the bankrupt for a breach of a part of sáid contract relating tó maple flooring, etc. The cause was referred to R. IT.

<p>ActioN tried before Ferguson, J., and a jury, at June Term, 1907, of Rockingham.</p> <p>Defendants appealed.</p>

.This was a proceeding instituted before the Corporation Commission at the instance of Hart-Ward Company, consignees, against the Southern Railway Company, brought by appeal of defendant company before the Superior Court of WaKE County, where, on issues framed and submitted, it was tried before Long, Jand a jury, at October Term, 1907, of said court.

ActioN tried before O. II. Allen, J., and a jury, at October Term, 1907, of Beaueoet. The plaintiffs allege that the defendant erected and maintained in the town of Washington, N. O., a freight depot, warehouse and office, one end of which extended over the water of Pamlico River 24 feet, supported by piles, and the other end fronting on Main Street. Said building was 145 feet long, 77 feet wide and 11 feet between floor and joists.

<p>1. Railroads — Carriers — “Order Notify” — Rights of Consignor — Wrongful Delay in Shipment — Rights of Consignee — Possession of Bill of Lading — Damages.</p> <p>Ordinarily a consignor of goods to a railroad company for ship- . ment to his own order, “notify” a proposed vendee, may dispose of them as he desires; but such right does not exist when the carrier has given a bill of lading for the goods, which was endorsed and forwarded with draft attached to the proposed vendee, who paid the draft and received the bill of lading without notice before the goods could have reached their destination in the ordinary course of shipment.</p> <p>2. Railroads — Carriers — “Order Notify” — Rights of .Consignee — Holder of Bill of Lading — Shipment Delayed — Liability of Carrier.</p> <p>A railroad company which has issued its bill of lading for goods shipped to plaintiff’s order, “notify” a proposed vendee, is liable as well as the consignor in damages for delay to the vendee, who, before the goods could have arrived in the ordinary course of shipment, has paid a draft attached to the bill of lading and received the bill of lading without notice of-a subsequent diversion of the shipment made by the consignor, especially when the railroad company had notice of the consignee’s rights, as evidenced by requiring the consignor to give a bond of indemnity.</p> <p>3. Railroads — Carriers—Delay in Shipment — Damages—Consequential Damages — Knowledge of Carrier.</p> <p>In an action to recover damages for delay in the shipment of brick to be used in constructing a store, the value of the rental of the store arising on a contract with third persons cannot be considered as an element of damages when there is no evidence that the defendant railroad company was aware of the purpose for which the brick were shipped.</p> <p>4. Same — Measure of Damages.</p> <p>When the evidence in a suit against a railroad company for damages in delay in shipment of brick shows, without more, that the brick were received by the defendant for shipment, and that an unreasonable delay occurred therein, the measure of plaintiff’s loss is the interest during the delay, on the amount plaintiff had invested in the shipment.</p>

<p>Principal and Surety — Default of Principal — Payment by Surety— Justices of the Peace — Jurisdiction.</p> <p>Upon the payment of a debt by a party secondarily liable therefor, he is substituted in equity to the rights of the creditor, and may sue thereon, as the creditor could have done, without any actual or legal assignment, under the doctrine that equity considers that as done which should have been done. Therefore, when the amount is two hundred dollars or less, a suit by a surety for the recovery of money misappropriated by his principal, which he has paid, is within the jurisdiction of a justice of the peace, certainly where the creditor has made a written assignment of the debt to the surety, mating the latter both the legal and equitable owner of the debt, and the action when brought in the Superior Court should be dismissed.</p>

ActioN tried before Gouncill, and a jury, at September Term, 1907, of Alamance. Tbis is an action to recover $1,050, tbe amount of a bond given by tbe defendant on 29 February, 1904, for an ice plant. Defendant, 'in bis answer, admitted tbe execution of tbe bond, but denied any liability upon it, and set up a counterclaim on the ground that it was obtained by false and fraudulent representations as to the condition and capacity of tbe plant.

<p>Aotioet tried before Moore, J., and a jury, at September Term, 1907, of Fobsyth.</p> <p>Plaintiff appealed.</p> <p>Tbis action was brought by plaintiff against defendant J". B. Fenwick and his wife, Katherine, for the purpose of subjecting certain real property, or a portion of the purchase money paid therefor, to the payment of a judgment recovered against the male defendant. The pleadings and verdict of the jury disclose the following facts:</p> <p>Plaintiff recovered ,a judgment against defendant Fenwick for $625 on 11 September, 1905. While the action in which said judgment was rendered was pending plaintiff sued out and levied upon a house and lot in Salem, N. C., a warrant of attachment. The property was conveyed by W. TI. Oli-nard to the feme defendant, 15 February, 1904-, in consideration of $1,200. Of this .amount $725 was paid by the feme defendant and $500 borrowed by her from the Wachovia Loan and Trust Company, secured by mortgage. The property was by an arrangement made between the parties sold and the mortgage debt paid. The balance of the purchase money, some seven hundred dollars, is held by James S. Dunn to await the determination of this action. The plaintiff alleges that the $700 paid was the property of the male defendant and was transferred to his wife with intent to defraud plaintiff, and that his intent and purpose were known to and participated in by her. The jury found that at the time the money was paid to feme defendant her husband was insolvent. The jury found against plaintiff on the allegation of fraud. For the purpose of establishing this allegation plaintiff introduced evidence tending to show declarations of Fenwick made to' the receiver of certain property involved in the first suit that he expected to get some money from his father’s estate; that he did not intend to pay plaintiff’s debt; “that he was going to put the money where they could not get it”; that during the month of February, 1904, Mrs. Fenwick deposited in bank sums aggregating about $1,200; that defendant Een-wick received from Ms sister’s estate about $1,200, which he turned over to his wife; that this was the same money deposited by Mrs. Eenwick; that defendant Eenwick contracted for the purchase of the house, Olinard not knowing Mrs. Een-wick in the transaction; that the deed was made to her by his direction. Plaintiff offered to introduce certain letters written by Eenwick to Dunn, who had the property in charge for the purpose of renting, bearing date from 1 May to 10 July, 1905. These letters, upon Mrs. Fenwick’s objection, were excluded. Plaintiff excepted.</p> <p>Defendants introduced evidence tending to show that Mrs. Eenwick received from her husband’s father $550 as a bridal present; that she made some $480 from a store.which she owned and conducted and some $300 saved out of money given her for family expenses by dispensing with servants and doing her own work; that Eenwick borrowed from his wife $1,200 and repaid same from amount received from his sister’s, estate. Both defendants testified in regard to these transactions. They also testified that the amount deposited in the bank by Mrs. Eenwick was the same money paid her by her husband in discharge of the amounts borrowed; that the $125 paid on the purchase money of the house by Mrs. Eenwick was derived from this source. There was evidence tending to contradict defendants’ testimony.</p> <p>Plaintiff requested the court to instruct the jury to answer the 'issue in regard to the alleged fraud “Yes.” This was. refused and plaintiff excepted.</p> <p>The court instructed the jury: “If you find from the evidence the $125 or any other amount which you may find of the purchase price of this property was contributed by J. B. Eenwick and title to the property taken in the name of his wife, Katherine Eenwick; and you further find that at the time J. B. Eenwick was owing this plaintiff this debt, the law presumes that this transfer of money to the 'defendant Katherine Eenwiek was voluntary and void as to this plaintiff, and Katherine Eenwiek must satisfy you by a preponderance of this evidence that her husband actually owed her a debt.”</p> <p>The court gave the following prayer in response to the request from the defendants: “If the jury find from the evidence that at the time at which J. B. Fenwick turned over to his wife the money coming to him from Maryland he owed his wife an amount equal in amount of that placed in the bank to her credit, and this was done as a payment of a debt really due his wife, he had a right to pay this debt to the exclusion of other debts, and the transfer, if in good faith and with no intent to defraud, would be valid, anej. in such case the Avife’s deed would be good as against plaintiff, and the third issue should be answered ‘No’ and the fourth issue ‘No.’ ” Plaintiff excepted to these instructions.</p> <p>ITis Honor explained the matters in controversy to the jury and charged them at length in regard to the general principles of law applicable thereto. Plaintiff noted exceptions to portions of the charge pertaining to other issues, which, in view of the answer to the one directed to the allegation of fraud, are immaterial. The court rendered judgment for the feme defendant upon the verdict. Plaintiff excepted and appealed.</p>

ActioN tried before Moore, and a jury, at August Term, 1907, of Sheet. The action was brought by plaintiffs to recover the amount due feme plaintiff, Louisa Dodson, nee Eulk, as the distribu-' five share of her father’s estate, from defendants, who are his executors.

ActioN tried before Moore, Jand a jury, at September Term, 1907, of Eoesyti-i. This action was brought- by the feme plaintiff to recover damages for personal injuries. The court submitted these issues: “1. Was the plaintiff M. C. Wright injured by the negligence of the defendant, as alleged in the complaint?” Answer: “Yes.” “2. What amount of damages, if any, is tbe plaintiff M. 0.

Appeal by plaintiff from an order of Moore, J., overruling demurrer to the answer, at January Term, 1908, of Meok-LBNBURG. The facts are stated in the opinion.

<p>ActioN tried before Long, J., and a jury, at October Term, 1907, of Wake.</p> <p>Defendant appealed.</p>

<p>1. Parties — Executors and Administrators — Heirs—Real Estate — No Privity.</p> <p>There is no privity of interest between the administrator of deceased and his widow and heirs at law in the deceased’s real estate, and it was not error of the Judge in the lower court to permit the widow and heirs at law to become parties to and fully defend a suit affecting their interest in deceased’s lands.</p> <p>2. Cloud on Title — Action—Heirs—Pleadings—Judgment—Estoppel.</p> <p>A judgment in an action brought by the widow and heirs at law •to remove a cloud upon their title to land descended to them, wherein it was adjudicated that a note secured by a mortgage had been fully paid and discharged, may be successfully pleaded in bar to an action subsequently brought to foreclose by the administrator of the mortgage creditor.</p> <p>3. Cloud on Title, What is — Equity Jurisdiction.</p> <p>When a lien by mortgage appears by record to be valid upon lands descending to the widow and heirs at law, but which was paid by their intestate, it is a cloud upon their title within the jurisdiction and province of a court of equity to remove, and their cause of action will therein lie for that purpose; otherwise when such adverse claim of title appears to be void upon its face.</p> <p>4. Removal of Causes — Venue, Objection to — Waiver.</p> <p>An objection that a suit was instituted in the wrong county relates to the venue and not to the jurisdiction. In the absence of a written demand that the suit be removed to the proper county before the time to answer has expired (Revisal, sec. 425), the objection will be deemed as waived.</p> <p>5. Same — Pleadings.</p> <p>A prayer in the answer that proceedings b.e stayed by injunction until an issue in a similar suit between the same parties in another county be determined is not a written demand for the removal of the cause, but if otherwise it would be deemed as waived when the cause was proceeded with to judgment without exception.</p>

<p>ActioN tried before Moore, J., and a jury, at January Term, 1908, of Cabaeiots.</p> <p>Plaintiff appealed.</p>

<p>ActioN tried before Ferguson-, Jand a jury, at January Term, 1908, of "Wilices.</p> <p>Tbis action is to recover damages growing out of a shipment of dried apples from Wilkesboro, N. 0., to Richmond, Va. The court submitted this issue, without objection or exception:</p> <p>“AYhat damage, if any, is plaintiff entitled to recover of the defendant?” Answer: “One hundred and eighty-four dollars and forty-seven cents.”</p> <p>From tbe judgment rendered tbe defendant appealed.</p> <p>Tbe facts are stated in tbe opinion:</p>

ActioN to recover damages for personal injury, tried before Moore, J., and a jury, at March Term, 1908, of MeciclbN-BUR.G. The court submitted these issues: “1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint ?” Answer: “Yes.” “2. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer?” Answer: “No.” “3.

ActioN tried before Ferguson, J., and a jury, at May Term, 1907, of Stoices. Plaintiff sued the original administratrix of W. L. Fallen, deceased, for the recovery of the amount due on a bond and due bill set forth in the complaint. The hdministratrix having died, Thomas B. Knight was appointed administrator ' de bonis non and made party defendant.

AotioN tried before Ferguson, J., and a jury, at January Term, 1908, of Wilkes. Tbe plaintiff alleged that be-was tbe owner in fee and entitled to tbe possession of tbe land in controversy, and that tbe defendant was wrongfully in possession and unlawfully withholding it from him.

<p>ActioN tried before Ferguson, J., and a jury, at October Term, 1907, of Meoexekburg.</p> <p>Plaintiffs appealed. The facts are stated in tbe opinion.</p>

<p>ActioN to recover damages for personal injuries received , by the breaking of a scaffold on wbicb plaintiff was at work, tried before Ferguson, J., and a jury, at October Term, 1901, of MeciclenbuRg.</p> <p>At tbe conclusion of plaintiff’s evidence the defendant moved to nonsuit, which motion was allowed, and plaintiff appealed. The facts are stated in the opinion.</p>

ActioN tried before Moore, aud a jury, at March Term, 1908, of Mecklenburg-. This action was brought to recover the price of goods sold aud delivered by the plaintiff to the defendant. The defense was that the business was conducted by Mrs. Oaroline J. Ramsey, who is a married woman, and that she was and is the sole proprietor of the business and owner of the stock of goods in the store.

ActioN to recover a penalty, -under section 2632 of the Re-visal, for delay in transporting a safe from Thomasville, N. C., to Hickory, N. 0., tried before 1Ward, J., at October Term, 1901, of Oatawba. From tbe judgment rendered the defendant appealed.

ActioN heard on motion to revive judgment, by Ferguson, ■J., at January Term, 1908, of Wilkes. On 4 March, 1895, the Bank of Wilkesboro recovered judgment against the Wilkesboro Hotel Company, principal, and S. J. Gennings, surety, for $757, interest and cost. Execution was issued thereon and the amount, with commissions, etc., paid by said Gennings, 6 September, 1895. The execution was duly returned, showing payment.

ActioN tried before Moore, J., and a jury, at January Term, 1908, of Mecklenburg. There was evidence on tbe part of plaintiff tending to sbow that in January, 1906, tbe intestate, engaged in. bis employment as one of a switching crew, was run over and fatally injured on the yard of defendant company, from which injuries he soon thereafter died.

<p>1. Constitutional Law — Municipal Taxation — Necessaries—Without Vote of People — Legislative Powers.</p> <p>The Legislature has the constitutional authority to authorize a municipal corporation to create a debt for necessary purposes without a vote of the people.</p> <p>2. Same — Market House.</p> <p>A market house is a necessity for a town, in the sense that the Legislature may authorize a municipal corporation to incur a debt to provide one without a vote of the people.</p> <p>3. Same — Legislative Restrictions.</p> <p>There is no limitation upon town taxation for necessary purposes except that imposed by statute, general or special.</p> <p>4. Same — Interpretation.</p> <p>While by some sections of a legislative act a town may be restricted in its tax levy for ordinary purposes, the various sections of the act relating to the subject must be construed together, so as to give effect to such others as authorize an additional levy for special purposes.</p>

Action beard before Ward, J., and a jury, at November Term, 1907, of Caldwell. J. E. Mattocks and T. B. Lewis, trading under tbe name of plaintiff, sued for recovery of damages for breach of contract, alleging that defendant bad entered into a contract in writing, made a part of tbe complaint, whereby be authorized them to sell, and, upon finding a purchaser, agreed to make title to a tract of land owned by him.

ActioN tried before Ward, J., and a jury, at October Term, 1907, of WlKKES. Action for trespass. Plaintiff claims under entry dated 6 February, 1901, “640 acres on tbe waters of Elk Creek, adjoining tbe lands of Joel Triplett, A. 0. Cowles and others, beginning on tbe southwest corner of Joel Triplett’s fifty-acre tract, known as tbe Cox lands, and running various courses for complements.” Warrant issued 18 February, 1901.

ActioN tried before Ferguson, J., and a jury, at November Term, 1907, of MeckleNbueg. Tbe following issues were submitted: “1. Was tbe plaintiff injured by tbe negligence of tbe defendant?” Answer: “Yes.” “2. Did tbe plaintiff by bis own negligence contribute to bis injury, as alleged in tbe answer?” Answer: “No.” “3. Did tbe plaintiff assume tbe risk of being injured in tbe way be was injured while operating said machine?” Answer: “No.” '“4.

ActioN tried before Peebles, J., at December Term, 1907, of Bueice. The plaintiff alleged and introduced evidence to prove that he was walking along and near the track of the defendant company in the town of Highland, just below and east of Hickory, when he was struck and badly injured by an engine pulling a train of the defendant, which was running, six hours late, at, a high rate of speed.

<p>ActioN tried before Cooke, J., and a jury, at May Term, 1907, of Buncombe.</p> <p>Plaintiff appealed.</p>

<p>ActioN for trespass, tried before Ward, J., and a jury, at November Term, 1907, of Caldwell.</p> <p>Plaintiff appealed.</p>

<p>1. Contracts, Wagering — Futures—Evidence.</p> <p>In an action upon contract for damages for failure to deliver cotton at a future time, when the price had become higher, and the defense was that it was a gambling contract, or “futures,” forbidden by Revisal, sec. 1689, in reply to which plaintiff testified he expected actual delivery, it was error in the lower court to exclude evidence offered in behalf of defendant that neither he nor plaintiff expected actual delivery; that it was a dealing in futures and not a dona fide sale; that their course of dealings had been in futures; that another person stated in the presence of plaintiff and defendant at the time of the execution of the contract that it could be closed out by either party by paying the difference, which was not denied, and that the transaction occurred in a “bucket shop.”</p> <p>2. Same — Transactions Prior to 1905.</p> <p>This transaction occurred prior to the enactment of chapter 538, Laws 1905, and only so much of Revisal, see. 16S9, applies as was embraced in chapter 221, Laws 1S89.</p>

<p>1. Insurance Order — Evidence—Policy and Death — Burden of Proof.</p> <p>. In an action upon a life insurance policy the burden of proof is upon the insurance company to show nonpayment of dues or other matters to avoid the policy, when the certificates of insurance and the death have been shown.</p> <p>2. Same.</p> <p>When a life insurance order is defending a suit upon a policy on the grounds of nonpayment of dues, the burden of proof being upon it, evidence by the proper officers is competent tending to show that the insured had been dropped from the rolls prior to his death upon official notice; the relation of the constitution and bylaws to the subject, a matter of record evidenced by a copy, by testimony and matters of record that the insured failed to pay his dues and was not in good standing at the time of his death; and that entries were made to this effect by the proper officer in the records of the lodge.</p>

<p>ActioN tried before Goolce, J., and a jury, at May Term, 1907, of BuNoombb.</p> <p>Defendant .appealed.</p>

ActioN to recover of the defendant Boyd possession of the lands and mining property belonging to the defendant corporation. The cause was referred to Referee M.- Silver, by consent. The referee made his report, and the matter was heard by his Honor, Judge Peebles, at December Term, 1907, of the Superior Court of Bubice County, who overruled all exceptions to the report of the referee and confirmed his report. The defendant Prank W.. Boyd appealed.

<p>1. Contracts, Illegal — Pleadings—Verified Plea of “Futures" — Burden of Proof.</p> <p>When defendant pleads in a verified answer that a contract, the subject of suit, for buying and selling cotton was void for being one for “futures,” the burden of proof is upon plaintiff to show that it was a lawful one, i. e., that actual delivery was intended by the parties, and not merely that either had the privilege of calling therefor. Revisal, sec. 1691.</p> <p>2. Contracts, Illegal — “Futures”—Evidence, “Prima Facie.”</p> <p>When damages are sued for in an action upon a contract for buying and selling cotton, and the plea of invalidity because the contract was for “futures” is set out in the verified answer, proof that the commodity was not actually delivered at the date of the contract and that one of the parties agreed to secure or deposit “margins” constitutes prima facie evidence of a contract declared void by Revisal, sec. 1689.</p> <p>3. Contracts, Illegal — “Futures”—Damages, Subsequent Fromise to Pay.</p> <p>A subsequent promise made by one of the contracting parties to the other to repay him for loss arising from a contract for “futures” is void.</p> <p>4. Contracts, Illegal — “Futures” — Principal and Agent — Status of Agent.</p> <p>An agent for a principal to a contract made in violation of Revisal, sec. 1689, as to “futures,” cannot recover for any. loss he may have sustained on account thereof, as such act of agency would be in violation of Revisal, sec. 3824, making it a misdemeanor.</p>

<p>1. Deeds and Conveyances — “Lappage”—“Color” of Title — Adverse Possession — Evidence. ></p> <p>When there are two claimants to land under different grants, which include a part of the land in both, thus causing a “lappage,” the locus in quo being embraced therein, there is “color” of title in the junior grantee, and if he can show thereunder adverse possession for seven years it will bar the right of entry of the other party.</p> <p>2. Same — Occupation—Presumption.</p> <p>When the junior grantee claims title against the senior grantee of lands embraced in the “lappage” caused by the description in their grants by reason of adverse possession under “color,” and has introduced evidence tending to show the possession, his possession, by construction of law, extends to the boundaries of his deed or grant upon which he relies, and is not confined to so much thereof as may have been in his actual occupation and possession, if the senior grantee had no actual possession of the “lappage.”</p> <p>3. Deeds and Conveyances — “Lappage” — “Color” of Title — Evidence — Adverse Possession, Charatcer of.</p> <p>When the junior grantee claims title by adverse possession under “color” in the “lappage” of lands caused by the description in his own and the deed of the senior grantee, his possession must be of such character and so continuous as to indicate to the other proprietor the intention of claiming the land beyond the admitted boundaries, and upon competent evidence the question is one for the jury, under proper instructions from the court as to the legal effect of the possession.</p> <p>4. Same — Evidence—Instructions.</p> <p>When the senior grantee has had no actual possession of the “lappage,” and there is evidence on the part of the junior grantee that he has held adversely to the senior grantee a “lappage” of lands in the descriptions of their grants, it is error in the trial Judge to charge the jury that the latter is deemed in law to be in possession of the entire tract covered by his title, except as to so much thereof as the former may have had in his actual occupation and possession.</p> <p>5. Evidence — Questions for Jury.</p> <p>When there is more than a scintilla of evidence the question is for the jury, and a motion as of nonsuit is properly refused.</p> <p>6. Deeds and Conveyances — Boundaries—Description—Number of Acres.</p> <p>While ordinarily the number of acres mentioned in a deed constitutes no part of the description, yet when C., in an action for possession, claims that his lands extend beyond a certain line to and including the lands claimed by G., and there is at least some doubt as to the true location of his' lands respecting it, evidence is competent to show that the land occupied by O. on his own side of the line and within his alleged boundaries contained a greater number of acres than that called for in his deed.</p>