Volume 148 — North Carolina Reports

ActioN tried before Guión, J\, and a jury, at September Term, 1907, of BuNcombe. This action was brought to recover damages for negligently failing to deliver a telegram.

<p>ActioN tried before Guión, J., and a jury, at Spring Term, 1908, of Geaiiam.</p> <p>Plaintiffs appealed.</p>

ActioN tried before Ferguson, J., and a jury, at October Term, 1907, of Meciclenbubg. This action was brought to recover the amount of the premiums paid by the male plaintjff to the defendant on certain insurance policies described in the pleadings. The plaintiffs alleged that on or about 16 March, 1896, the defendant, through its officers and agents, came to plaintiff and importuned plaintiff to take out certain policies of insurance.

<p>AotioN tried before Ferguson, J., and a jury, at October^ Term, 1907, of Mecklenburg.</p> <p>Defendant appealed.</p>

ActioN beard by Webb, J., at November Term, 1907, of Gaston. ■ . Defendants appealed. Quo warranto brought by tbe relator to recover tbe office of Treasurer of tbe Town of Bessemer, from wbicb tbe relator bad been removed by tbe Board of Town Commissioners. Upon tbe pleadings tbe Judge rendered judgment 'in favor of tbe relator, restoring bim to office, giving judgment that be recover bis fees, ordering a reference to ascertain tbe amount, and ousting tbe defendants.

Action tried before Guión, Jand a jury, at September Term, 1907, of Buncombe. This is an action brought by the plaintiffs to establish their claim to be tenants in common with the defendant John Baird in the land described in the complaint, and to convert the defendant Laura Baird, who holds the legal title, into a trustee for the benefit of the plaintiffs and John Baird. At the conclusion of the plaintiffs’ evidence the defendants moved to nonsuit, which motion was allowed.

ActioN tried before Peebles, J., and a jury, at October Term, 1907, of Rutherford. This tvas .an action for damages for personal injuries receded by plaintiff, alleged to- have been caused by negligence of defendant in operating a motorcycle upon the streets of Eorest City. It was alleged that defendant frightened a horse driven by one Lytton, and the horse ran away and ran OAm’ plaintiff, throwing him to the ground and injuring him.

ActioN heard on demurrer to plaintiff’s complaint, before Peebles, J., at October Term, 1907, of Ruthebeoeix The court overruled the demurrer, holding that the* same was frivolous, and for that reason declined to allow defendant to answer same. Defendant excepted and appealed.

<p>ActioN tried before Jones, J., and a jury, at September (Special) Term, 1901, of EobssoN.</p> <p>Defendant appealed.</p>

<p>PROCEEDINGS instituted before the Superior Court of Buncombe County to procession lands of plaintiff set out and described in the petition, transferred, on answer filed by defendants, to the civil issue docket of-the Superior Court of Buncombe County, where final judgment was entered in plaintiff’s favor by Guión, J., at October Term, 190Y.</p> <p>Defendants excepted and appealed.</p>

<p>AotioN heard by consent by Ferguson, J., at chambers in Charlotte, 27 September, 1907, from GastoN.</p> <p>Defendants appealed.</p>

Case AGREED, beard by Justice, J., at chambers in Butii-erford, 24 December, 1907.

ActioN heal’d by Justice, J., at chambers, 18 November, 1906, from Rutherford. This was a controversy submitted without action. The facts, exhibits, etc., are the same as in Mershon against same defendant, the only difference being that the property purchased from the plaintiff was “one No. 16 Town one-man two-saw trimmer, complete, with two saws.” Judgment was rendered for plaintiff. Defendant excepted and appealed.

ActioN tried on appeal from tbe court of a justice of tbe peace, before Guión, Jand a jury, at September Term, 1907, of BuNcombe. Tbe plaintiffs, Peter Stroud and bis wife, Margaret, each sued defendant company for $100, money alleged to bave been obtained from them by false and fraudulent representations in reference to insurance policies issued to plaintiffs.

<p>ActioN heard by Cuion, J., .at September Term, 1907, of Buncombe.</p>

CONDEMNATION proceedings, beard by Peebles, J., at Rail Term, 1907, of Yancey. Tbis is a special proceeding instituted -by tbe plaintiff, Johnson City Southern Railway Company, against tbe defendant, Tbe South and Western Railroad Company, and others, before tbe Clerk of tbe Superior Court of Yancey County, by summons duly issued by bim on 15 December, 1905.

ActioN beard by Webb, J., at April Term, 1908, of MooRE. Held: in accordance with the order of said board of commissioners and under the provisions of said act, on the day aforesaid, and at said election a majority of the qualified voters residing within said school district cast their ballots “Eor Schools and Bonds.” Said election was regularly and legally held, as provided by said act of tbe…

ActioN to recover damages for wrongful delay in the shipment of goods, tried before. Ward, J., and a jury, at November Term, 1901, of Catidwell.

ActioN to recover on a note for $6,000 anti interest, given by defendants to plaintiff for one-third interest in a furniture factory which plaintiff and defendants had owned in… Held: in effect, that, if the evidence was believed by the jury, the plaintiff had established his claim to the amount of the purchase note and interest, and that there was no sufficient evidence on which to submit the question of defendants’ counterclaim to the jury in either aspect of the demand.

ActioN beard upon, pleadings by Moore, J., at March Term, 1908, of MbcicleNbuhg. The plaintiff, a stockholder in the Louise Ootton Mills, a corporation chartered, organized and operating pursuant to the laws of North Carolina, seeks in this action to enjoin the board of directors and managing officers of said corporation from paying to the defendant insurance company the amount of premiums on certain insurance policies.

ActioN beard upon pleadings by Moore, J., at March Term, 1908, of MecklbNbuRQ. This action is brought for the same purpose as and in many respects is similar to 'the case of Victor v. Louise Cotton Mills, the only substantial difference being that the defendant E. A. Smith was at the date of the issuance of the policy and its assignment and is now the president of the defendant manufacturing company.

ActioN beard on case agreed and by consent of parties, before Ward, Jon 11 May, 1908, from PuNcombe. The facts are stated as follows: 1.

<p>1. Counties — Bond Issues, Validity of — Taxation—Levy—Constitutional Limitations.</p> <p>County bonds issued by a popular vote of the county for training-school purposes, under legislative authority, without provision to exceed the constitutional limitation of levy for principal, interest or for a sinking fund, are valid and a good tender, under a contract with the purchasers calling for the delivery of valid bonds, though they are not for necessary purposes.</p> <p>2. Same.</p> <p>When bonds are issued by a county by popular vote, under legislative authority, which does not further provide for a levy to exceed the constitutional limitation for principal, interest or for a sinking fund, the commissioners are without authority to levy a tax to exceed the restriction. State Constitution, Art. VII, see. 7. {Charlotte, r. Shepard, 122 N. C., 602, where the bonds were issued by a town, cited and distinguished.)</p> <p>Brown, J., concurring arguendo. Connor, X, dissenting; IIoke, X, concurring in dissenting opinion.</p>

<p>, ActioN heard by Neal, J., at December Term, 1908, of New Hanovee.</p> <p>Both parties appealed.</p>

ActxoN to restrain tbe issuing of certain bonds, beard at chambers by Oowncill, J., at Statesville, 18 May, 1908, from Caldwell. Erom a judgment for defendant plaintiff appealed. Tbe facts are stated in the opinion.

AotioN to recover tbe amount of a note for $500, with interest thereon, given by defendant to the Damask Manufacturing Company for stock issued by the company- and delivered to and held by defendant, tried before Ward, J., and a jury, ¿t October Term, 1907, of Wilkes. The subscription was made and note was given by defendant on 5 Tune, 1905.

<p>ActioN beard by Biggs, J., at February Term, 1908, of Wake.</p> <p>This action was brought by the executor of Maria T. Haywood against her devisees, legatees and heirs at law, and the vestry and trustees of Ghrist Church 'for a construction of her will. The plaintiff alleges in his complaint:</p> <p>1. That Maria T. Haywood, late of said county, died in said county during the month of December, 1906, leaving a last will and testament, of which the plaintiff was duly appointed executor, and duly qualified as such about 1 January, 1907. A copy of said last will and testament is hereto attached and asked to be taken as part of this complaint.</p> <p>2. That there came into his hands as such executor the sum of $22 in cash, which has been expended, with rents from the real property of the estate from January to December, 1907, in the administration of said estate.</p> <p>3. That the brother of his testatrix, Erank Haywood, and also one of her nephews, John Bryan, both named in said last will and testament, died during the lifetime of said testatrix.</p> <p>4. That under the said last will and testament the plaintiff sold the property described in item 4 of said will and testament, and the assets now in the hands of the plaintiff and which will come into his hands upon the collection of the deferred payments for the purchase of said property arise entirely from the proceeds of the sale of the said property described in item 4.</p> <p>5. That a doubt has arisen as to the disposition of the joecuniary legacy to said John Bryan, he having, as aforesaid, died prior to the death of said testatrix; that is, whether the same should be paid to the said vestry and trustees of Christ Church or to the heirs at law and next of kin of said testatrix. The plaintiff wishes to be advised by the court as to who is entitled to receive the said legacy of $500 given to John Bryan, deceased, as aforesaid.</p> <p>6. That the defendants, other than the said vestry and trustees of Christ Church, are heirs at lav? and next of kin of said Maria T. Haywood, deceased.</p> <p>7. That Erank Haywood, the brother of the testatrix, was at the time said will was dated an old man.</p> <p>Wherefore the plaintiff asks judgment:</p> <p>1. Eor the construction of said last will and testament as to the lapsed legacy to said John Bryan, deceased, and for a determination as to the parties thereto entitled.</p> <p>2. That the costs of this proceeding be paid out of the estate of the said testatrix.</p> <p>The following is a copy of the will:</p> <p>“I, Maria T. Haywood, of the city of Raleigh, do make and declare the following to be my last will and testament:</p> <p>“Item 1. I wish my just debts to be' paid out of any moneys I may leave or have on hand or in bank at my death, and if they pirove insufficient I wish my houses and lots to be kept rented out until tbe rents, wbicb shall be collected by my executor for the purpose, shall be sufficient to pay the residue.</p> <p>“Item 2. I will and direct that a suitable monument shall be erected at my grave, and that my executor shall expend of the assets of my estate (about) six hundred dollars in the payment of my funeral expenses and the costs of such monument and its erection; and I give to the Raleigh Cemetery Association one hundred dollars ($100) on the condition that it will perpetually keep the lot on which my body shall' be buried in good condition.</p> <p>“Item 3. I give and devise to my niece, Effie Woodruff, and my nephew, Graham Haywood, my house and lot in the city of Raleigh, at the corner of Wilmington and Jones streets, and now occupied by P. PI. Andrews, in fee simple, to be theirs in possession as soon as my executor shall have collected moneys sufficient to pay my debts in the manner provided in item one.</p> <p>“Item 4. I give and devise to the executor hereinafter appointed my other two houses and lots in said city, one fronting on Wilmington Street and the other fronting on Jones Street, with their appurtenances, in trust that he will sell the same in such manner and upon such terms as to him may seem best, and apply the proceeds, first, in payment of the seven hundred dollars as designated in item 2, and then in discharge of the pecuniary legacies herein below provided for.</p> <p>“Item 5. I give and bequeath to my brother, Erank Haywood, and my nephews, Erank Haywood, Jr., Sherwood Haywood, Howard Haywood, Marshall Haywood, Sherwood Badger and John Bryan, each five hundred dollars ($500); my brother, Erank Haywood, if alive at my death, to receive his legacy as soon as possible after the sale of said houses and lots, out of the cash payments. If he shall have died before my death, I give the legacy intended for him to the trustees and vestry of Christ Church, of which I am a member. Should the residue of the proceeds be insufficient to pay the legacies to my said nephews in full, they are to abate pro rata,; and if there shall be a surplus, I give and bequeath the same to the said trustees and vestry of Christ Church; the legacy to said church to be used and employed in such manner and for such purpose as to the rector .and vestry may seem best.</p> <p>“Item 6. I give and bequeath my personal effects and estate as follows: My camel’s-hair shawl to my niece, Lavinia Martin; my bedroom furniture in the room generally occupied by me to my niece, Eleanor Haywood; my carved bedstead and wardrobe of the same set with it to my niece, Marian Haywood; all my silver forks to my niece, Effie Woodruff; twelve dessert silver spoons, to be selected by my executor, to my cousin, Erank Parker; and all the residue of said personal effects to my nieces, Lucy Manly, Elizabeth Young, and Eleanor Haywood, to be equally divided between them.</p> <p>“Item I. I appoint Richard H. Battle, Esq., of the city of Raleigh, the executor of this my will.</p> <p>“In witness whereof, I have hereunto set my hand and seal, this 14th day of June, 1895.”</p> <p>The devisees, legatees and heirs at law did not answer. The vestry and trustees of Christ Church admitted the allegations of the complaint to be true, and insisted that they are entitled to the lapsed legacy. The court held that the next of kin of the testatrix are entitled to the fund. Judgment having been rendered accordingly, the trustees and vestry of Christ Church appealed.</p>

Actioh tried before Guión, J., and a jury, at June Term, 1907, of Burke. Tbe intestates of the plaintiff were run over and killed at the same time by a passenger train while they were walking on the track of the defendant, at a point about 300 yards west of the depot at Morganton.

<p>For digest, see next preceding case, with same title.</p>

ActioN tried before Peebles; J., and a jury, at March Term, 1908, of Buncombe. Defendant insurance company, through its agents at Ashe-ville, N. C., on 29 December, 1905, issued to plaintiff its policy of insurance against loss or damage by fire, to the amount of $1,900, on certain property, fully described therein. .

ActioN tried before Peebles, J., and a jury, at March Term, 1908, of BuNoombe. This action is brought by the plaintiff against the defendants, the Southern Railway Oompany and Dwight W. Newell, a trainmaster of defendant company, for the negligent killing of Claude C. Dermid, a freight conductor in the employ of said company. The court submitted certain issues involving the negligence of the defendants, the contributory negligence of the plaintiff’s intestate, and damage.

<p>ActioN tried before Peebles, J., and a jury, at March Term, 1908, of Buncombe.</p>

<p>1. Deeds and Conveyances — Construction—Entirety—Intent.</p> <p>In construing a deed the court will examine the entire instrument and construe it as a whole, consistent with reason and common sense, to effectuate the intention of the parties.</p> <p>2. Deeds and Conveyances — Descriptive Words — Reservation—“Retain.”</p> <p>When in a deed describing by boundaries the land therein conveyed the words, “including a lot given to S. C. W., which is still retained,” are used, the clear meaning of the word “retain” excludes the conveyance of that part of the lands, and title passes only to the land within the larger boundaries, exclusive thereof.</p> <p>3. Deeds and Conveyances — Property of Another — Intent—Presumptions.</p> <p>In the construction of a deed the presumption is that the grantor does not intend to convey property of another contained within the description of the land conveyed. Such intent must clearly appear.</p> <p>4. Deeds and Conveyances — Trusts and Trustees — Parties—Estoppel.</p> <p>A deed made by one assuming to act as trustee for the benefit of his grantor’s wife and children, under a deed in trust not executed by the wife, does not by its recitals estop the wife, when not a party thereto, from claiming title to her land embraced therein.</p> <p>5. Deeds and Conveyances — Trusts and Trustees — Husband and Wife — Tenant by the Curtesy — Wife’s Land — Deed of Husband— Intent Presumed — Wife’s Estoppel.</p> <p>A trustee for the wife, under a deed from the husband which was not executed by the wife, conveyed certain lands to N. upon the same uses and trusts. The husband and wife separated during the year in which the deed was made. The land conveyed was by given boundaries, but the description contained these words: “including the lot given to the wife by her father (which is still retained by her).” The husband had an interest in his wife’s land as tenant by the curtesy. The wife was not a party to the deed: Held, (1) if it be conceded that the lot spoken of as “retained” by the wife passed by the description, the law will presume that only such interest as the husband had therein' was, or was intended by him to be, conveyed; (2) as to the wife, there was no estoppel created so as to pass her estate.</p> <p>6. Deeds and Conveyances — Descriptive Words — Husband and Wife — Trusts and Trustees — Judgment, Construction of — Estop-pel — Injunction.</p> <p>In an action to remove a trustee created under the husband’s deed of trust for the benefit of the wife and children it was established by the verdict of the jury, upon the issues submitted, that certain lands of the wife embraced in the boundaries of the said deed were not by the use of the language “including,” etc. “(which is still retained),” included in the conveyance. Judgment was rendered reciting the issues and verdict thereon, using the same descriptive words of the land as used in the trust deed. The present action is by the child to enjoin the sale, under a subsequent mortgage, of the wife’s land thus excluded in the former judgment from the operation of the trust deed: Held, that, construing the former judgment as an entirety,- (1) it was not intended by the court to divest the wife of her title to the land by reason of the use in the judgment of the description contained in the trust deed; (2) the use of the descriptive language by the court, under the circumstances, adopting the description contained in the trust deed, evidenced his opinion that the wife’s land was excluded; (3) the plaintiff in this action is estopped by the former judgment to claim any interest in the land mortgaged by the wife; (4) a restraining order upon these facts should be dis- . missed.</p>

ActioN heard by Goolce, J., at Eall Term, 1908, of JACKSON. This is an appeal from an order of his Honor, Judge Guión, setting aside a judgment of nonsuit rendered at a former term of the court. The, ground of the application was that the absence of plaintiff’s counsel was caused by excusable mistake. A number of affidavits and a “statement” by Judge 0. n. Allen, wbo rendered tbe judgment of nonsuit, were submitted to his Honor.

ActioN beard at chambers by Guión, J., by consent, at Marshall, August 23, 1907, as of July Term, 1907, of BuN-COMBB.

ActioN for injunction, beard by Moore, J., 24 March, 1908, by consent, at 'chambers in Asheville, from Me.ckuew-BUE.G. The plaintiff seeks to enjoin the collection of certain taxes assessed against its property by the defendant Board of Commissioners of Mecklenburg County, for that, it is' alleged, the assessment and levy of said taxes are in contravention of Article Y* of the Constitution of the State.

<p>ActioN heard before Moore, J., by consent, at chambers in Asheville, 24 March, 1908, from MeokltsNbuRG.</p> <p>Defendant appealed.</p>

ActioN heard before W. R. Allen, J., at chambers, from WayNe. This action is brought by the plaintiff on behalf of himself and other taxpayers of Goldsboro Township for the purpose of restraining tbe defendants from issuing bonds. Upon tbe bearing tbe injunction was refused, and plaintiff appealed. Tbe facts are stated in tbe opinion of tbe Court.

ORDER consolidating two causes, made1 by Moore, J., at March Term, 1908, of MeckxeNburo. The plaintiff sued defendant companies for damages sus--tained by .a collision had between the engine of the railway company and the car of the Charlotte Electric Railway and Power Company at a point in the city of Charlotte at the intersection of North Brevard Street, alleging negligence in several respects.

ActioN to recover damages for maintenance of a public nuisance, causing special damages to plaintiff, tried before Ward, J., and a jury, at November Term, 1907, of Caldwell.

<p>ActioN tried before Peebles, Jand .a jury, at September Term, 1901, of McDowelu.</p> <p>Plaintiffs apjiealed.</p>

ActioN heard before Biggs, J., and a jury, at November Term, 1901, of Lenoir. The facts disclosed by the pleadings and evidence are: Plaintiff, C. P. Dnnn, was tbe owner of a house and lot in the town of Kinston, known as the “E. 0. Hay lot” and also as the “Hotel Charles.” He purchased the land on which said hotel was located from one E. 0. Hay, and, to secure the purchase money, executed, 22 August, 1898, to said E. 0. Hay a mortgage on said property, with power of sale.

Actiobt to recover damages for alleged negligent construction of the roadbed of defendant companies, tried before Cooke, J., and a jury, at Spring Term, 1908, of Tybbell.

<p>Vendor and Vendee — Agricultural Lien — First Year’s Crop — Lien for Second Year — Subrogation—Quaere.</p> <p>Plaintiff bad a valid agricultural lien on defendant’s crop under a written instrument containing in addition a chattel mortgage on defendant’s mule and cart. Tbe remaining crop at tbe end of tbe year was sufficient to pay a balance still owing by defendant, and at defendant’s request it was agreed that be should retain tbe remaining crop, together with tbe mule and cart, to enable him to make a crop for tbe ensuing year, the plaintiff to make advancements therefor in a certain amount, inclusive of that due for the year preceding; Held, it was competent for tbe parties to agree that tbe crop of defendant then on band and tbe mule and cart to be used in making the crop for the second year should be con- • sidered as advancements for that year, so as to constitute a valid lien on tbe second yeaFs crop for their payment. As to whether the party making the advancement would otherwise be remitted for his security to the original -lien on taking the second security, qumre. (Lowdermilk v. Bostick, 98 N. C., 299, cited and distih- . guished.)</p>

AottoN heard by O. II. Allen, J., at chambers, 12 February, 1908, in Warren. This is an action for a mandamus to compel the defendant, who is the Treasurer of Warren 'County, to deliver to the plaintiffs, the road commissioners for ITawtree Township, the fund which he has received from taxes levied in 1905 for road purposes, amounting to $335.96.

<p>Wills, Interpretation of — Ademption—Intent.</p> <p>In order to establish, an ademption of a specific devise, there must be an alteration in the character of the subject-matter, made or authorized by the testator himself. Therefore, -when there is a devise of certain lands by'their known name, concerning which there was a claim under a contract to convey made by some third person, which in the lifetime of the testator had been unsuccessfully contested b3r suit, and after his death it had successfully been contested and the purchase price paid to the executors and held by them free from claim of debt of the testator, and. it further appearing that the testator died in possession, believing he was the owner in fee, his intention will be construed as devising, not only the land itself, but all of his right, title or interest therein, and by the specific devise the proceeds of sale of the land will go to the devisee named.</p>

<p>Aotiow heard- before Lyon, J., and a jury, at May Term, 1908, of Beaufort.</p> <p>Defendants appealed.</p>

<p>ActioN tried on appeal from a justice’s court, before Qooh, Jand a jury, a-t April Term, 1908, of Beaueoet.</p> <p>The evidence tended to show that plaintiffs, distillers and liquor dealers, in Richmond, Va., sold whiskeys on running account to T. 0. Sparrow & Co., a firm doing business in Washington, N. 0., from January, 1905, to 6 October of the samé year, the balance due being $99.08; that the firm of T. 0. Sparrow & Co., composed originally of T. O. Sparrow and defendant W. H. Albert, was dissolved in July, 1905, when W. H. Albert retired, having sold out his interest to one 0. IT. Spears, and that defendants T. O. Sparrow and C. IT. Spears, the purchaser of Albert’s interest, continued to do business under the firm name of T. O. Sparrow & Co..</p> <p>At the time the original firm of Sparrow & Co. was dissolved by sale and transfer of Albert’s interest to Spears there was nothing due from this firm to plaintiffs, and the amount now sued for and remaining due was for items sold by plaintiff firm to Sparrow & Go. on 6 October, 1905, all former' items, of charge having been paid by credits duly entered on the account. The question in debate was as to the liability of W. IT. Albert for the debt of defendants, and whether sufficiént notice had been given plaintiffs of Albert’s retirement from the firm. On issues submitted, verdict was rendered as follows:</p> <p>1/ “Was the partnership composed of T. 0. Sparrow and W. IT. Albert dissolved on or-about 12 July, 1905, as alleged?” Answer: “Tes.”</p> <p>2. “Were the plaintiffs duly notified of such dissolution ?” Answer: “Yes.”</p> <p>There was judgment on the verdict in favor of defendant Albert, and plaintiffs excepted and appealed.</p>

<p>Injunction — Cause of Action Removed — Appeal Dismissed Without Prejudice.</p> <p>When it lias been made to appear tbat the action is for in-junctive relief only, and the cause lias been removed, appeal will be dismissed without prejudice to the rights of plaintiff to sue for damages, if so desired.</p>

<p>ActioN beard by Lyon, J., on petition to dismiss a restraining order, May Term, 1908, of Beaufort.</p> <p>Plaintiff appealed.</p>

<p>ActioN tried before 0. II. Allen, </., and a jury, at December Term, 1901, of BjcauitoRt.</p> <p>Tbis action is prosecuted by N. 0. Hughes against defendant for tbe purpose of recovering tbe amount paid by bim by reason of tbe wrongful and fraudulent negotiation of certain notes executed by bim .and delivered to defendant, as tbe plaintiffs allege, to be held until tbe performance of a collateral contract by defendant. Tbe basis of tbe complaint, eliminating irrelevant matter, is: That defendant, as agent of a clothes w.asber. company, of Lauderdale, Miss., proposed to sell to the two sons of tbe plaintiff Hughes for the sum of $500 certain rights, within a prescribed territory, to sell and appoint subagents to sell the washing machines. Defendant, as an inducement to procure the plaintiff Hughes to sign notes for the purchase price and to secure the payment thereof by mortgage on his land, promised to train the sous in regard 'to making sales, etc., and that, until he had complied with his contract, and plaintiff or his sons signed a certain paper which defendant ex-, hibited to them at the time the notes were signed, the transaction was to be incomplete and open; that defendant failed and refused to comply with the contract in regard to training the plaintiff’s sons, and, in violation of said contract, negotiated the plaintiff’s notes to purchasers for value, without notice of the condition upon which they were to become binding upon plaintiff; that by reason of the conduct of defendant in the premises plaintiff was compelled to pay said notes to the purchaser, and was thereby endamaged to the amount of the notes. Defendant, by appropriate pleadings, denied so much of the complaint as was material to the alleged cause of action.</p> <p>The following issues were, without objection, submitted to the jury:</p> <p>1. “Did the defendant wrongfully and fraudulently negotiate the notes of the plaintiff N. C. Hughes, as alleged in the complaint?” Answer: “Yes.”</p> <p>2. “What amount, if anything, is the defendant indebted to plaintiff N. 0. Hughes by reason thereof?” Answer: “Five hundred dollars.”</p> <p>A large number of exceptions were “lodged” in the progress of the trial, but many of them, involving the same questions, were not referred to in the brief. Those which .are material to the decision of the appeal are referred to in the opinion. There was judgment for plaintiffs, and defendant appealed.</p>

<p>Actiok beard by TT. B. Allen, J., who found the facts, by consent, at November Term, 1907, of Beetie.</p> <p>Defendant appealed.</p>

<p>ActioN beard at chambers, at Kinston, LeNOIR. County, by 0. II. Allen, J., 20 May, 1908.</p> <p>This is an action for the dissolution of the partnership of Emry & Chappell and for a settlement of its affairs. The plaintiff also asks for an injunction and a receiver to protect the partnership assets pending the action. He bases his claim for relief upon.the allegations that the defendant a.nd himself have disagreed as partners, that he has been denied any participation in the management of the business and that the defendant is mismanaging the affairs of the firm and converting its .assets to his own exclusive use.</p> <p>The defendant filed an answer, in which he alleges that there is a former suit pending between the Lyon and Montague Company, which is a creditor of the firm, and Emry & Chappell to recover a debt alleged to be due the plaintiff, and that the plaintiff, Emry, can have the same relief in that action as he now demands in this one. In the case of Lyon & Montague Oo. v. Emry & Chappell the defendants were served with process. The defendant, Emry, did not answer. The defendant, Chappell, answered only for himself, and averred in his original and amended answers that the plaintiff paid to Emry a large amount due the defendants, after notice from the defendant, Chappell, not to do so, as Emry had already received a large sum in excess of his share of the partnership assets and was misappropriating the same, the amount so paid being more than sufficient to pay the claim of Lyon & Montague against the defendants, and, further, that the said company was also notified by him to reserve an amount sufficient to pay its claim, which it failed to do.’ He further substantially alleges against his codefendant, Emry, that the partners had disagreed; that Emry had mismanaged the business and misapplied the assets, converting them to bis own use, so that on 1 October, 1906, he w.as indebted to the firm in the sum of $48,895.69-, one-half of which was due to him; that he had demanded a settlement, which Emry refused and then withdrew from active management of the business, leaving him in sole charge, and that upon a settlement Emry will owe him at least $20,-000. . lie demands judgment for a dissolution of the partnership and an accounting of all of the dealings and transactions of the firm; that its property be sold, the debts paid and the surplus divided between the partners according to their several and respective rights. He further prays that a judgment be rendered against Emry for $20,000, the amount dire by him to Ohappell, the answering defendant. There is a prayer for further relief and costs. The record shows that all the parties agreed to refer the case for the purpose of taking and stating an account between the plaintiffs, Lyon & Montague, and the defendants, Emry & Ohappell, and also betwen the defendants themselves, as partners, with leave to Ohappell to amend his answer and to Emry to file an answer. The reference was so ordered, with the consent of all the parties.</p> <p>The Judge passed upon the answer and the evidence of the record in the former suit, which he found as a fact to exist, and, after consideration of the same, refused to sustain the plea in abatement, or answer in the nature of a plea, -or to dismiss the action, because the plaintiff could not obtain the same relief in the other action pending in the Superior Court of Nash County as he sought to obtain in this case. The defendant, Chappell, excepted and appealed.</p>

<p>ActioN heard by Lyon, J., at May Term, 1908, of Beau-poet.</p> <p>Plaintiff appealed.</p>

<p>1. Appeal and Error — Costs of Superior Court — Final Judgment.</p> <p>With but a few exceptions, as, for instance, where continuances are granted upon agreements, or judgment, that a party pay costs, the costs of the Superior Court follow final judgment.</p> <p>2. Same — Successful Appeal — Costs, an Offset to Final Judgment— Transcript and Certificate.</p> <p>When plaintiff recovers final judgment in the Superior Court after two successful appeals- by defendant, the costs of all the trials in the Superior Court should be taxed against the defendant, but it is entitled to offset against the final recovery all the costs properly paid by it on its successful appeals, including the transcript and certificates.</p>

ActioN tried before Lyon, J., and a jury, at December Term, 1907, of Geeene.

<p>MotioN by defendant to set aside judgment for want of service, beard by 17. B. -Allen, J., at February Term, 1908, of Cea ven.</p> <p>Motion denied. Plaintiff appealed.</p>

ActioN to recover possession of a tract of land, beard by Ward, Jat January Term, 1908, of WASHINGTON. A jury trial was waived and the facts Avere found by tbe court. From a judgment declaring that plaintiffs, in no vieAV of the case, were entitled to recover, they appealed.

<p>1. Contracts — Fraud or Mistake, How Taken Advantage of — Collateral Attack in Action Upon.</p> <p>Parol evidence is admissible to vary the terms of a written instrument, only for fraud or mistake, and then the contract must be reformed, upon proper allegations, in- an independent action, or by way of affirmative defense, properly pleaded, in the same action. It cannot be changed by 'a collateral attack in a suit upon the instrument itself.</p> <p>2. Corporations — Contracts, Written — Principal and Surety — Sureties Signing as Officers — Parol Evidence.</p> <p>A written contract, expressed in clear and unambiguous terms, which is set up in the complaint and admitted in the answer, and which was made by á corporation and its stockholders, the latter being named as sureties, with 'a purchaser of stock, stating that upon demand one year from date the corporation will pay a sum certain for the stock thus bought, should he (the purchaser) so elect, cannot be varied by parol evidence so as to show that some of the stockholders signed only as officers, of the company and not as sureties, though their official signature appeared upon the instrument. (Typewriter Go. v. Hardware Go., 143 N. C., 97, and other like cases, cited and distinguished.)</p> <p>3. Same — Form of Signature — Effect.</p> <p>In the body of a contract made by a corporation, guaranteeing certain conditions to a purchaser of shares of its own certificates of stock, it was stated that the corporation had signed as principal and its stockholders as sureties. Some of the stockholders, who were officers, ■ signed the instrument, using their official designation': Held, (1) the form of the signature was unimportant and could not vary the clear intent expressed in the body of the instrument; (2) the intent of the sureties to bind themselves personally was not «hanged by the form of their signatures, for such a change would make the corporation its own surety, amounting in effect to no surety, as the debts of the corporation would have to be first paid.</p>

Plaintiff, at tbe Spring Term, 1905, of tbe Superior Court of Greene County, instituted, an action against tbe defendant Allie Jones, administratrix, and tbe other defendants, beirs at law of Gardner Jones, deceased, for tbe purpose of compelling specific performance of a contract entered into by said deceased to convey to plaintiff a tract of land in consideration of tbe payment of tbe sum of $1,000.

<p>ActioN tried before W. B. Allen, Jand a jury, at May Term, 1908, of -Giíjebne..</p> <p>Plaintiff appealed.</p>

<p>1. Trespass — Presumptions—Damages—Pleadings—Allegations Sufficient. '</p> <p>From every action of trespass tbe law. infers some damages, and an allegation that defendant did unlawfully, forcibly, etc., enter upon certain lands in plaintiff’s possession and occupation is sufficient to sustain the action.</p> <p>2. Trespass — Pleadings—Husband and Wife — Attempted Seduction— Damages, Aggravation of. •</p> <p>Under an allegation of trespass, in a suit by tbe husband, coupled with averments that it was with the “unlawful, malicious, lascivious,” etc., intent and purpose to seduce, debauch and carnally know the plaintiff’s wife, and that defendant did then attempt to seduce and carnally know her, the jury may award exemplary damages to the husband, under pertinent evidence, in aggravation of the actual damages caused by the mere act of trespass.</p> <p>3. Trespass — Husband and” Wife — Seduction Attempted — Damages, Right of Husband to Recover — Constitutional Law.</p> <p>The statutory and constitutional enlargement of the property rights of the wife does not affect the rights of the husband, in an action, of trespass upon his home, upon the wife’s land, with the intent and attempt to seduce or carnally know her.</p>

ActioN before O. H.. Allen, J., and a jury, at April Term, 1908, of BbRtib. Eliminating all immaterial matter, tbe record discloses the following facts: Defendants, on 21 February, 1906, were' the owners of a small tract of land, which they conveyed to J. P. Sessoms, the .husband of plaintiff, reserving; a life estate.

<p>1. Deeds and Conveyances — Deed in Escrow — Action for Possession — Procedure.</p> <p>An action for the possession of a deed to lands held in escrow, alleging the fulfillment of the conditions thereof, involves the title to lands, not merely the delivery of the deed, and the ancillary or provisional remedy of claim and delivery will not lie.</p> <p>2. Same — Judgment—Title—Jurisdiction—Removal of Causes.</p> <p>The effect of a verdict and judgment in an action for the delivery of a deed held in escrow, determining that the conditions thereof have been complied with, will be to transfer, not simply the deed, but the actual title to the land. If the deed should be destroyed, the judgment could be made to operate as a deed, or the court could decree the execution of another. Hence it was not error in the court below to order that the cause be removed to the county wherein the land is situated. (Pasterfteld v. Sawyer, 132 N. C., 258; s. o., 133 N. C., 44, cited and distinguished.)</p>

<p>ActioN tried before W. B. Allen, J., and a jury, at Spring-Term, 1908, of JoNES, to recover damages for trespass in entering .upon and cutting timber on lands described in the complaint. There was a verdict for defendants, and plaintiff appealed.</p>

ActioN tried before Lyon, J., and a jury, at June Term, 1908, of Ma&tiN. . This action was brought to recover the price of goods sold . and delivered to the defendant under a written contract containing the following stipulation: “This order is not subject to countermand, and we will receive said goods promptly on arrival at the station named above. Failure to do so will make this order due on demand.

<p>ActioN tried before IK B. Allen, J., and a jury, at May Term, 1908, of Pitt.</p> <p>Plaintiff appealed.</p>

<p>ActioN heard on demurrer to complaint, by Goolce, J., at May Term, 1908, of VaNCE, to recover the value of a moving-picture outfit alleged to have been destroyed in the warehouse of the defendant on the evening of 6 June, 19 07.</p> <p>The complaint contains two causes of action — one charging-the defendant as a common carrier and a second count charging it as a warehouseman. The defendant demurred to both causes of action. From a judgment overruling the demurrer the defendant appealed.</p>

Actxom heard upon demurrer to the complaint, by Coolce, J., at May Term, 1908, of VaNCE.

<p>ActioN beard before Biggs, Jand a jury, at December Term, 1908, of New HaNOvee.</p> <p>Defendants appealed.</p>

<p>1. Appeal and Error — Assignment of Error of Record — Appeal from Judgment.</p> <p>When the appeal calls in question only the correctness of the judgment no summary of exceptions under Rule 19 (2) is required by Rule 21, because it is error on the face of the record. Otherwise a demurrer is sustained or overruled, for Revisal, sec. 475, provides that the demurrer shall distinctly specify the grounds ‘ of objection to the complaint.</p> <p>2. State’s Land — Entry—Same Lands — Dispute as to County— Procedure.</p> <p>When the defendant, under Revisal, sec. 1905, is claiming to lay an entry, and aslss a grant for land admitted to be the same as contained in plaintiff’s grant, the plaintiffs entering their protest that the land lay in a certain county, and the defendant contending that the protest should be dismissed for that it lay in a different county, relief can be had in the pending cause, and it is not necessary to resort to an action of ejectment after defendant has perfected his grant.</p>

ActioN tried before Neal, J., and a jury, at May Term, 1908, of Lenoie. Tbis action was to recover the value of a shipment of boxes, made by plaintiff to the Hamlin Tobacco Company, the consignee. At the close of the evidence the defendant moved to nonsuit; motion allowed.' Plaintiff excepted. From the judgment rendered the plaintiff appealed.

<p>AotioN tried before Cooke, J., and a jury, at May Term, 1908, of Vance, to recover damages of tbe defendant for alleged injury to the plaintiff’s property, consisting of a building used for stores, .’situated on Garnett Street, in said town, caused by the grading and lowering of the sidewalk and street in front of the same.</p> <p>The following issues were submitted to the jury ;</p> <p>1. “Did defendant, in grading and constructing the sidewalk in front of plaintiff’s store, grade and construct the same in a negligent, unlawful, wanton or improper manner?” Answer: “Yes.”-</p> <p>2. “If yes, what damage is plaintiff entitled to recover?” Answer: “Fifteen hundred dollars.”</p> <p>At the close of the evidence the defendant moved to non-suit the plaintiff upon the grounds (1) that the defendant had the lawful authority to grade the sidewalk and street in front of plaintiff’s property; (2) that there was no evidence that the work was done in a negligent, wanton or improper manner.</p> <p>The court overruled the motion, and defendant excepted and appealed.</p>

AotioN tried before Lyon, J., and a jury, at Eall Term, 1908, of Wilson. This is an action brought by the plaintiffs to recover damages of the defendants. The plaintiffs alleged, and introduced evidence to prove, that in November, 1902, they purchased of the defendants a car load of horses and mules at the stock yard of the defendants in Fort Scott, Kansas, and gave in payment their sight draft for the amount of the purchase price on S. A. Woodard, of Wilson.

<p>Wills, Interpretation of — Remainders—Vested Interests — Child, etc., Living.</p> <p>Property was devised to a daughter, but “should she die-without child,” etc., then to J., L. and E. for life, and then over. J. and the daughter intermarried and had children, who did not survive their mother. At the death of the mother: Held, that J. could not take a fee simple, as no interest vested in the children; this, both by interpretation of the language of the will itself and the rule in Revisal, sec. 1581, providing that, unless it is otherwise clearly expressed in the will, the children, etc., must be alive at the death of the first taker for the interest to vest in them.</p>

<p>ActioN beard on exceptions to report of referee, by W. B. Allen, J., at chambers, 27 July, 1908, from Obaven.</p> <p>Plaintiff appealed.</p>

<p>ActxoN tried before W. B. Allen, J., and a jury, at April Term, 1908, of Pítt.</p> <p>Defendants appealed.</p>

ActioN heard before W. B. Allen, J., and a jury, at December (Special) Term, 1907, of Samipson, to vacate and s§t aside a'proceeding for partition and the decree therein rendered by the Clerk, of the Superior Court of Sampson County. Defendant appealed.

ActioN heard by Guión, J., upon facts agreed, at June Term, 1908, of WayNe, brought to recover of the defendant a penalty of $50 for failure to settle a claim within sixty days, under Revisal, sec. 2634. The facts agreed are as follows: A package of freight shipped from a station of the Southern Railway, within the State of North Carolina, to Mount Olive, in said State, which is situate on the Atlantic Coast Line Railroad, was lost.

ActioN beard on appeal from a justice’s court, before Lyon, J., and a jury, at April Term, 1908, of Edgecombe. Verdict and judgment for defendant, and plaintiff excepted and appealed.'

ActioN tried before W. R. Allen, J., and a jury, at May Term, 1908, of Cbaven, to recover damages alleged to Rave been sustained by plaintiff in shipment of a car load of horses and mules.

<p>ActioN tried before Neal, Jand a jury, at June Term, 1908, of LeNOie. ’</p> <p>Defendant appealed.</p>

ActioN instituted before a justice of tbe peace for the recovery of the penalty of $50 for alleged failure of defendant to accept freight for shipment when tendered, under section 2631 of Eevisal. Defendant denied that the freight was tendered. Upon appeal, the cause was tried before Neal, J., and a jury, at March Term, 1908, of Denote. The evidence upon which plaintiff relies to establish a general tender for shipment is as follows: L. D. Dixon testified: “Mr. W. IT.

ActioN beard by Neal, at May Term, 1908, of Sampson. David J. Knowles, lately domiciled in Sampson County, died in November,’ 1901, having first made and published his last will and testament, the first item of which is in the following words: <£I give, devise and bequeath unto my wife, Margaret Knowles, all my iiersonal property, to use as long as she lives, and at her death to be equally divided among my children, my grandchildren, Ered Knowles and Leona Knowles, to share…

AotioN from a justice of the peace, tried on appeal before Biggs, J., at February Term, 1908, of Wake. A jury trial having been waived and the cause tried by the court, recovery was had by plaintiff for an amount demanded as damages and for certain penalties claimed as arising under sections 2634 and 2644 of the Eevisal.

ActioN tried before Guión, J., and a jury, at June Term, 1908, of Wayne. The defendant demurred to the complaint and set up a counterclaim. The demurrer was sustained ■ and judgment rendered against plaintiffs for the amount of the counterclaim. Plaintiff appealed.

ActioN tried before W. B. Allen, and a. jury, at December (Special) Term, 1907, of SampsoN. This action is prosecuted by plaintiff to recover possession of the lapxl described in the complaint and to have a tax deed held by defendant declared invalid. The plaintiff, by deeds duly recorded, showed title in B-. G. Williford.

<p>AotxoN beard by Long, Jat December Term, 1907, of JOIINSTON.</p> <p>Tbis action was brought to recover damages for failing to deliver a telegram, and was beard below on a case agreed, which is as follows:</p> <p>It is admitted by counsel on both sides that the telegram set out in the complaint was delivered to the agent of the defendant, at Raleigh, N. C., at 7:27 o’clock P. M., 19 May, 1903, and was received by the operator at Smithfield, agent of defendant, at 8:25 P. M. on the same night; that the message was delivered to Mrs. Suttle at 9 o’clock A. M. the next day, to-wit, 20 May, 1903, and that tbe business hours of the Western Union Telegraph Company at Smithfield are from 8 A. M. to 8 P. M.</p> <p>The court, by consent of the parties, found the following facts from the depositions submitted:</p> <p>1. The plaintiff’s husband, J. W. Suttle, left Smithfield on the morning of 19 May to spend the day in Ealeigh, expecting to return to Smithfield on the afternoon train, and he so told his wife before leaving home that morning.</p> <p>2. The plaintiff’s husband, J. W. Suttle, did not return to Smithfield on the afternoon of 19 May, because the train on which he was returning to Selma was wrecked, but he returned to Ealeigh from the wreck, and at 2:27 P. M. filed with the defendant’s agent at Ealeigh the telegram set out in the complaint and addressed to his wife, Mrs. J. W. Sut-tle, Smithfield, N. C., which was as follows: “Esta and I were in wreck; not hurt; will be home to-morrow.”</p> <p>3. In addition to the notice of the importance of the prompt delivery of said telegram appearing from the face .of the message, the said J. W. Suttle, at the time of delivering the message, asked the operator if the message would be delivered to his wife that evening, and w.as told by the operator that it would. J. W. Suttle said to the operator that if he thought it would not reach her that evening he would be compelled to drive home through the country, because he knew his wife would hear of the wreck and would spend a miserable night, not knowing whether he was hurt or not in the. wreck.</p> <p>4. By reason of the failure to deliver the telegram promptly on the'evening of 19 May, 1903, the plaintiff, Mrs. Suttle, suffered great mental anguish, as described by her. If the telegram had been promptly delivered upon its receipt at Smithfield, to-wit,-8:30 o’clock P. M., 19 May, 1903, the feme plaintiff would not have suffered the mental anguish, as testified to by her.</p> <p>5. Notwithstanding the facts set out in the telegram, Mr. Suttlq did receive certain hurts, by the wreck, which are set forth in the evidence.</p> <p>Upon the admission of counsel for plaintiff and defendant, and the finding of facts by the court, it is considered by the court 'that the defendant was guilty of negligence in failing to promptly deliver the telegram set out in the complaint to the feme plaintiff, and that the plaintiff recover of the defendant the sum of $175, together with the costs of this action, to be taxed by the Clerk.</p> <p>It was agreed that if the plaintiff is entitled in law to recover, the damages should be assessed at $175.</p> <p>The defendant excepted to the judgment of the court and appealed.</p>

ActioN beard before Neal, J., and a jury, at March Term, 1908, of LenoiR.. This action was brought to recover the penalty given by section 2634 of the Eevisal for failing to adjust and pay a claim for loss of property shipped over the defendant’s road. B. E. D. Albritton testified that he is a member of the partnership of B. E. L>.

<p>ActioN beard by Lyon, J., at April Term, 1908, of Edge-combe.</p> <p>Plaintiff appealed.</p>

Action heard on demurrer to complaint, before Ward, J., at Eall Term, 1907, oIMecKLENbueg-. The facts stated in the complaint, considered material to a proper understanding of the cause, are: 1.

ActioN beard by W. B. Allen, oil return to a restraining order, at Louisburg, 22 August, 1908, from FeankliN.

ActioN from Duplin, heard on report of referee by Neal, J., at chambers, 5 May, 1908. This cause was before the Court at the Fall Term, 1903 (133 N. 0., 195), when all matters in controversy were disposed of, except tlie rents and the Bradham loan. It was sent back to the referee for the purpose of passing upon these items in the account. Upon the hearing the plaintiffs abandoned their claim for rents.

<p>Contracts, Breach of — Measure of Damages — Matters in Diminution— Pleadings' — Burden of Proof.</p> <p>When it is established that defendant contracted with plaintiff for the latter to furnish special goods to be manufactured, and the defendant has wrongfully refused to take them, the damages sustained by the plaintiff is the difference between what it would have cost the plaintiff to carry out its part of the contract and the contract price, in the absence of averment and proof by defendant of any fact in diminution of the damages, the burden being on defendant.</p>

AotioN tried before Neal, J., and a jury, at February Term, 1905, of PeNdeb. On and prior to 8 December, 1894, Oallie F. Wilson, wife of plaintiff Gr. W. Wilson and mother of the other plaintiffs, was the owner of the land in controversy. She had joined with her husband in-the execution of a mortgage on said land’ to Gibson James for the purpose of securing the payment of a debt of her said husband, amounting” on said date, 8 December, 1894, to the sum of $100.

ActioN tried before W. B. Allen, J., and a jury, at May Term, 1908, of Chaven. Plaintiff sues the defendant railroad company and White & Co., contractors, for damages by reason of injuries alleged to have been sustained by the negligence of defendants.

ActioN beard on case agreed, by Long, J., at March Term, 1908, of Brunswick. This is an action in the nature of a creditor’s bill, brought by the plaintiff in behalf of'himself and all other creditors of A. W. Rieger, deceased, against the defendants, his administrator and administratrix.

ActioN tried before Biggs, Jand a jury, at November Temq 1907, of LenoiR. The plaintiff sues to recover damages for an alleged breach of contract made by defendant to sell and deliver a cargo of salt. The contract was made by correspondence, all of which is set out in the record. The plaintiffs are copartners, conducting a' mercantile business in the town of Kinston.

ActioN tried before Long, J., and’ a jury, at April Term, 1908, of Cumberland. The action was to recover damages against defendant company for unlawfully entering upon lands of the plaintiffs and wrongfully occupying same in the exercise of a right of way. The plaintiffs TI. B. and C. B. Porter, having failed to file any complaint, the action as to them was dismissed and the cause proceeded with as between plaintiff John Porter and the defendant.

<p>PbtitioN to rebear tbis -case reported in 147 N. C., p. 234. , . '</p>

ActxoN tried before Long, J., and a jury, at.April Term, 1908, of OumbbRlaND, to recover damages for tbe death of Hector Lloyd Pate, alleged to have been brought/ about by the negligence of tbe defendant.

<p>Actiow tried before Biggs, and a jury, at April Term, 1908, of Wayne, brought to recover damages for tbe alleged negligent killing of plaintiff’s intestate while in defendant’s service, on 7 March, 1907.</p> <p>These issues were submitted:</p> <p>1. “Was tbe plaintiff’s intestate killed by the negligence of defendant, as alleged in the complaint?” Answer: “Yes.”</p> <p>2. “Did the plaintiff’s intestate, by his own negligence, contribute to his death, as alleged in the answer?” Answer: “No.”</p> <p>3. “What damages, if any, is the plaintiff ■ entitled to recover ?” Answer: “Eive thousand dollars.”</p> <p>From the judgment rendered defendant appealed. The facts are sufficiently stated in the opinion of the Court by ■Justice Brown.</p>

ActioN tried before W. R. Allen, J., and a jury, at May Term, 1908, of Chaven, for tbe recovery of tbe value of one borse and one mule.

ActioN tried before Neal, Jand a -jury, at November Term, 1907, of Nash. The action was to recover the balance due on a promissory note for the purchase price of an automobile, given by defendant to one B. A. Blenner, and by' said Blenner endorsed to plaintiff. The defendant resisted recovery on the ground that the note was procured by false and fraudulent representations on the part of Blenner, the vendor.