Volume 149 — North Carolina Reports

A’otioN tried before Neal, J., and a jury, at March Term, 1908, of PeNDKR County.

ActioN tried before Jones, J., and a jury, August Term, 1908, of GuilpoRD. Defendants appealed. The plaintiff on 15 August, 1906, sold the defendants a stock of goods for $6,900 cash. The defendants gave a check for $500, but it was protested and, no part of the purchase money being p>aid, the plaintiff retook possession of the goods after the defendants had held them ten days.

Plaintiff’s Appeal. ActioN tried before Lyon, J., and a -jury, November Term, 1907, of GRAVEN. The plaintiff alleged that, on 4 January, 1902, he had entered into a contract with the defendant to log certain timber lands owned by it, the defendant to furnish the necessary equipment, to -provide for the means for performing the contract, which were to be charged to the plaintiff, who was credited each month with the logs delivered by him.

<p>Defendant’s Appeal.</p> <p>ActioN tried before Neal, J., and a jury, November Term, 1907, of CRAVEN.</p>

<p>1. Personal Property — Evidence of Sale — Registration—Mortgage.</p> <p>A paper writing evidencing that the maker voluntarily turned over to the sheriff, to be held for the bank, certain personal property, to be delivered to the bank to partly cover checks drawn by the maker on the account of another, is a sale, and requires no registration as against a mortgage subsequently given on the property mentioned; and evidence, on the part of the bank, tending to show a valid indebtedness of- the maker to it, is competent, being relevant to support the bank’s title in case impeaching . testimony is offered.</p>

ActioN tried before O. H. Allen, J., and a jury, Fall Term, 1907, of Hyde. Plaintiff instituted suit against defendant, and declared on four causes of action for alleged breach of different contracts on part of defendant, claiming damages therefor in amounts varying from $500 to $100.

ActxoN for slander, tried before Webb, J., and a jury, at March Term, 1908, of ObaNge. These issues were submitted without exception: 1. Did the defendants falsely and maliciously speak of the plaintiff to Jacob Douglass the words set out in section two of the complaint, or words of same substance ?

Actiost tried before Jones, J., and a jury, March Term, 1908, of ANSON. Action begun before a Justice of the Peace.

ActioN heard by Webb, J., at June Term, 1908, of Guil-ford. Defendant appealed. Judgment was taken before a Justice of the Peace 8 September, 1906. An appeal was taken in open court and the transcript on appeal was promptly sent to the Clerk of the Superior Court. At August Term, 1907, the appeal not having been docketed (though in the interim five terms of the Superior Court had been held), the appellee moved to docket and dismiss.

Defendants’ Appeal. Civil ActioN tried before W. B. Allen, J.¡ and a jury, December Special Term, 1907, of SampsoN. The facts disclosed by the pleadings and verdict of the jury are: O. B. Morisey, the ancestor of feme plaintiff,' being the owner of the tract of land in controversy, containing 140 acres, on 3 December, 1814, executed a mortgage thereon to D. G. Morisey to secure the payment of a note for $627.

ActioN to recover damages for personal injuries to plaintiff, caused by alleged negligence on part of defendants, tried before Jones, J., and a jury, June Term, 1908, of Anson. Plaintiff filed bis complaint and alleged that plaintiff bad been injured by tbe wrongful negligence of tbe defendants to bis damage $5,000. Defendants answered denying negligence on their part, alleging that tbe damage suffered, if any, was nowhere near tbe amount alleged.

<p>ActioN beard before Lyon, Jand a jury, July Term, 1908, of Columbus. Defendant appealed.</p>

ActioN tried by Webb, J., February Term, 1908, of Guil-NORD. From tbe judgment rendered, plaintiff appealed. Tbe facts are fully, stated in tbe opinion of the- Court.

ActioN, from CumbeklaND, beard by Long, J., brought to obtain a perpetual injunction to restrain defendant from collecting taxes out of the residents in the territory in the extension of city limits, or from exercising any jurisdiction over persons or property resident in the extension, under chap. 489, Private Acts of 1907, entitled “An act to enlarge corporate limits of the city of Fayetteville,” ratified 11 March, 1907.

ActioN tried before Jones, J., and a jury, February Term, 1908, of Union. Tbe pleadings, evidence and verdict disclose tbe following case: Defendant, Enoch Morgan, was tbe owner of tbe tract of land described in the complaint, on which be resided for many years. He married tbe feme defendant, Esther, the mother of the plaintiff, by a former marriage.

<p>1. Vendor and Vendee — Warranty, What Constitutes.</p> <p>To hold a bargainor in a sale responsible for a warranty, it need not be made in express terms; for it is sufficient if the seller makes an affirmation of a material fact at the time of the sale, as an inducement, and it is accepted and reasonably relied on by the buyer. ■</p> <p>2. Same — Evidence—Questions for Jury.</p> <p>During the bargain and sale of a horse, the vendor was asked by the vendee if the horse was all right. The vendor said he was sound-and all right: nothing the matter except a little distemper which he, being a young horse, would soon get rid of. Vendee replied, that from “what you say and from what I see of the horse, I will give you $115 for. him.” The vendor accepted, saying it was an insufficient price — he had too many horses — and if the vendee found him worth more, he was to pay $10 in addition. Held, evidence sufficient to take the ease to the jury upon the ■ question of express warranty.</p>

<p>ActioN from UnioN, heard by Jones, J., at chambers, 19 March, 1908. Defendant appealed.</p>

<p>1- Damages — Verdict—The Word “Dollars” Omitted — Judgment.</p> <p>When the jury, in response to an issue on damages, had answered the issue “five thousand,” it was not error in the trial Judge to add the word “dollars” in rendering judgment, when the pleadings, the evidence, the nature of the case and contention of the parties conclusively so indicated; and an exception taken thereto after the jury has been discharged cannot be upheld.</p> <p>2. Same — Unit of Currency.</p> <p>When, to an issue in a suit for a demand for damages, the jury has answered in an amount, leaving off the word “dollars,” the Judge may, in the judgment rendered', supply the word, for the dollar is the unit of our currency, in which the judgment is ' to be paid, and all other coins are recognized as multiples or fractional parts thereof.</p>

ActioN tried before Ferguson, J., and a jury, June Term, 1906, of Guilfoed. Tbe facts necessary to a disposition of this appeal are: In an action pending in the Superior Court of Guilford County, A. L. Brooks, Esq., was duly appointed receiver of the estate of B. F. Fisher, deceased.

<p>ActioN heard by Jones, J., January Term, 1908, of Moore. Defendant appealed.</p>

ActioN tried before Jones, J., and a jury, May Term, 1908, of Anson. This is an action for malicious prosecution. The plaintiff was charged before a Justice of the Peace with the commission of a criminal offense upon the accusation and affidavit of the defendant, C. D. Thomas. At the trial, as the record shows, he pleaded guilty, and afterwards, .appealed to the Superior Court from the judgment of the Justice, which was reversed by that Court.

ActioN tried before Jones, J., and a iury, February Term, 1908, of UNION. This action was brought to recover tbe possession of a mule.

<p>1. Executors and Administrators — Death by Wrongful Act — Foreign Administrators — Subsequent Qualification — Time for Bringing Suit.</p> <p>The action given by Revisal, sec. 59, to executors or administrators of the person whose death is caused by the wrongful act, etc., of another person, duly qualifying here, is not available to a foreign administrator or to an administrator who has since quali- . fled here, after the- commencement of the suit and the expiration of one year from the death of his intestate, which occurred in. this State.</p> <p>2. Executors and Administrators — Death by Wrongful Act — Procedure — When Suit Deemed to be Commenced.</p> <p>When a suit by a foreign administrator, under Revisal, sec. 59, has been dismissed, and be has subsequently qualified as administrator here, bis further proceeding to recover damages for the wrongful act causing the death of his intestate, should be by a separate and independent action; but when be has been permitted by the trial Court, without objection, to become a party to the original suit and amend bis pleadings to meet the changed conditions in this respect, bis action will be deemed as commenced when be was made a party. (Sail v. R. R., 146 N. C., 345, cited and approved).</p>

<p>Action tried before Long, J., and a jury, August Term, 1908, of UhioN.</p> <p>This action was brought to recover the amount of an account for goods sold and delivered to the defendant, cash advanced and money paid for him at his request, the amount claimed by the plaintiff being one hundred and seventy-one Y5-100 dollars. There were two accounts, one for $128.59 and the other for $43.16. The defendant denied his liability and set up a counterclaim for $39.08. The issues submitted, ■with the answers thereto, were as follows:</p> <p>1. In what amount, if any, is the defendant indebted to the plaintiff ? Answer: None.</p> <p>2. In what amount, if any, is the plaintiff indebted to the defendant on his counterclaim ? Answer: $10.</p> <p>There was a motion by the plaintiff for a new trial, which Avas overruled. Judgment was entered upon the verdict for the defendant, and the plaintiff aj)pealed.</p>

<p>ActioN tried before Webb, J., and a jury, July Term/ 1908, of Randolph. Defendant appealed.</p>

<p>1. School Committee — Change of Location of School — Discretion.</p> <p>Hie question of changing the location of a schoolhouse is one vested by statute in the sound discretion of the school committee, and their action therein cannot be restrained by the Courts, unless in violation of some provision of law, or the committee is influenced by improper motives, or there is misconduct on their part.</p> <p>2. Same — Evidence.</p> <p>An order restraining the action of a school committee in accepting a proposition for a change of site of a schoolhouse in a town, should he dissolved when it is' shown to be in accordance with the wishes of a majority of its patrons, and to the best interests of the school. No improper motive or misconduct is evidenced by members of the committee subscribing to the irurchase xirice of the new location, reasonably valued at $400, in exchange for which the old site, reasonably valued at $300, was to be given, as such would, in effect, be a donation of $100 for the purpose of effecting the desired change; or by the fact that a brother of a member of the committee was a part owner of the new site.</p>

AotioN tried before Moore, J., and a jury, February Term, 1908, of Guii/ford, for personal injury at a railroad crossing, caused by alleged negligence on part of defendant company.

AotioN beard before Guión, J., on case agreed, June Terra, 1908, of WayNE, to restrain tbe defendant from cutting down certain shade trees on the streets and sidewalks, within the corporate limits of the city of Goldsboro.

ActioN tried before Biggs, and a jury, April Term, 1908, of Wake. On tlie trial it was shown, among other things, that on 10 November, 1906, Alfred E. Myiitt, husband of feme plaintiff, executed and delivered to his brother, W. A. Myatt, a deed for a certain tract of land, lying in Wake County, for the sum of one thousand dollars, which had been paid; and said deed was duly acknowledged and filed for registration on the day of its execution.

ActioN, heard before Webb, J.; and a jury, July Term, 1908, of RaNdolpi-i, to set aside a deed and a written contract on tbe ground of mental incapacity, and fraud, and undue influence.

ActioN tried before Goólc, Jand a jury, at January Term, 1908, of McDowell. The action was to recover damages for personal injuries caused by the alleged negligence of the defendant company, and on issues submitted, the jury rendered the following verdict: “1. Was the plaintiff, O. E. Meacham, injured by reason of the negligence of the defendants, as alleged in the complaint? Answer: ‘Yes.’ “2.

<p>ActioN tried before Webb, J., and a jury, July Term, •1908, of Randolph. Plaintiff appealed.</p>

<p>Defendant’s Appeal.</p> <p>ActioN tried before Jones, J., and a jury, June Term, 1908, of ANSON. Both sides appealed.</p> <p>DEFENDANT'S APPEAL.</p> <p>PLAINTIFF'S APPEAL.</p>

<p>Exemptions — Fugitive From Justice — Evidence — Animus Rever-tendi.</p> <p>: One wbo is a fugitive from justice, though leaving his family here, who cannot be found in the State and whose whereabouts are unknown, and the object of whose absence is to avoid serving a criminal sentence imposed by our Courts, is not a resident of the State within the meaning of Art. 10, see. 1, of our Constitution, and not entitled to his exemptions here in the absence of evidence or finding on the question of his animus revertendi.</p>

<p>Contributory Negligence — Evidence Conclusive.</p> <p>When it appears that plaintiff’s intestate was injured by attempting to go between two cars of defendant’s train, chained together on a live track in constant use, and that he could easily have walked around tire train by going from seventy to ninety feet and have avoided the-injury, his act constitutes contributory negligence which bars recovery by his administrator.</p>

ActioN tried before Moore, J... and a jury, at the February Term, 1908, of G-uilKoed. The action was brought by plaintiff as administratrix of her son, W. L. Bailey, for damages for the death of intestate, alleging that the same was caused by the wilful negligence of the defendant’s lessee, the Southern Railway. The Court submitted these issues; “1. Was the plaintiff’s intestate injured and killed by the wanton negligence of the defendant’s lessee? Answer: Wes.’ “2.

<p>1. Pleadings — Admissions—Evidence. , .</p> <p>It is competent for one party to put in evidence a portion of the pleadings of the other containing an allegation or admission of a distinct or separate fact relevant to the inquiry, though it is only a part of the entire paragraph, without introducing qualifying or explanatory matter inserted by way of defense, which does not modify or alter the facts alleged.</p> <p>2. Defenses — Fellow Servant Act — Railroads.</p> <p>The defense that the injury complained of resulted from the negligent act of a fellow servant is still available, except in its application to a railroad company; for, by express terms, the statute known as the “Fellow Servant Act,” by which this defense was withdrawn, is confined in its operation to railroad companies.</p> <p>3. Master and Servant — Negligence—Fellow Servant — Vice Princi-</p> <p>pal — Respondeat Superior.</p> <p>When an order negligently given by a vice principal, present at the time and directing the work, obediently carried out by one fellow servant, immediately caused the injury to the other one, the negligence is imputed to the principal, and a prayer for instruction is properly refused, to the effect, that if the plaintiff was injured, .under such circumstances, by the misconduct of a co-employee, he could not recover.</p> <p>4. Master and Servant-^ — Negligence of Fellow Servant — Recovery.</p> <p>In an action by an employee to recover damages for personal injury alleged to have arisen from a negligent act, if the negligence of the employer and a fellow employee concurs in producing the injury, the injured employee can recover of either, if he himself is free from blame.</p> <p>5. Same — Evidence—Nonsuit.</p> <p>The plaintiff,- nineteen years of- age, was employed chiefly to keep the books of defendant company. The vice principal of defendant, who was directing the work, called plaintiff to assist . in raising a pile driver by helping to work some jackscrews, placed for the purpose. There was evidence tending to show that the injury complained of was caused by the jackscrew being - insecurely placed and certain timbers used in connection with 'them insecurely fastened, and in consequence of an ill-considered and negligent order, given, by tne vice principal. Held, there was sufficient evidence of negligence to be submitted to tlie jury, and a motion as of nonsuit upon tlio evidence was properly refused.</p>

ActioN hoard by Webb, J., March Term, 1908, of Dun-IIAM. The plaintiff alleged that, on 21 February, 1907, lie entered into a contract, in writing, with defendant II. N. Snow, which he sets out in the complaint.

• ActioN tried before Neal, J., and a jury, Fall Term, 1908, of New ITawovee. This cause lias been before the Court in two appeals and will be found reported in 142 N. C., 27'T and 145 N. C., 269.-On both appeals the Court granted a new trial for error in the ’Conduct of the trial and form of the verdict. The subject matter of the litigation is set forth in the appeal, reported in 142 N. C., 2YY, rendering it unnecessary to repeat it at this time.

ActioN tried before Long, J., and a jury, August Term, 1908, of LeNOie.

ActioN for construction of a will, from Alamance, heard by Moore, by consent, at chambers, at Greensboro, 19 June, 1908.

<p>1. Municipal Corporations — School Boards — Discretion—School Districts.</p> <p>In the absence of misconduct, or of violation of some provision of statute, the action of a school board in dividing townships into school districts and in the erection and maintenance of school buildings, cannot be supervised or restrained by the courts. Re-visal, secs. 4116, 4121, 4124.</p> <p>2. Municipal Corporations — School Districts — Discretion—Rebuilding School-house — Proximity to Another School.</p> <p>When a school board, acting according to its judgment, without misconduct on its part, or in violation of some provision of statute, rebuilds a school-house on an old site,, though in less than three miles of some school already established, it is not a violation, of Revisal, 4129, providing that no new school shall be established within that distance of another.</p> <p>3. Injunction — Appeal—Abstract Question.</p> <p>When pending an appeal from a judgment dissolving a restraining order the act sought to be restrained is accomplished, the Court will dismiss the appeal.</p>

<p>ActioN beard before Gouncill, jury trial being waived by consent, September Term, 1908, of Eorsytb, upon petition for dower, commenced before the Clerk, and transferred to term of court.</p> <p>Tlie Court upon tbe facts admitted gave judgment against the plaintiff, who appealed. The facts are stated in the opinion of the Court.</p>

ActioN tried before Moore, Jand a jury, February Term, 1908, of Guilford. This action was brought to recover damages for injuries alleged to have been, caused by the defendant’s negligence. The plaintiff who, on 13 May, 1906, was in the employ of the defendant, was ordered by George W. Vernon, the baggage agent at Greensboro, N. C., to carry some trunks from the north bound train No. 34, which had just arrived, to the east bound train No. 112.

ActioN tried before Moore, J'and a jury, February Term, 1908, of Gaston. Tbe Oourt submitted these issues: (1). Were the plaintiff’s horse, buggy and harness injured by the negligence of the defendants, as alleged in the complaint? Answer : No. (2). Did plaintiff’s agent, by his own negligence, contribute to the injury of said horse, buggy and harness, as alleged in the answer? Answer:-. (3). What damages, if any, are plaintiffs entitled to recover ? Answer:-.

Actiok heard by Ward, JOctober Term, 1908, of BuN-COMBTS. This action was heard in the Superior Court, upon the following case agreed: 1. On 13 September, 1902, Sarah S. Newton, wife of George IT. Newton, being the owner in fee and in possession of a tract of land in the city of Asheville, executed her will which, on 31 October, 1903, after the death of the said Sarah 5. Newton, was duly probated and recorded, as prescribed by law. ■ 2.

. AotioN tried before Neal, Jand a jury, February Term, 1908, of Saíipson, to recover lands claimed to have been wrongfully appropriated by defendant to his own use in building beyond the dividing line of adjoining property of the parties. At the close of plaintiff’s testimony, on motion duly entered, there was judgment as of nonsuit under the Hinsdale Act, and the plaintiff excepted and appealed.

ActxoN, tried before Long, J., and a jury, July Term; 1908, of Lee, for damages for breach of contract of transJ portation, alleged to have been made on behalf of the plaintiff, Cora Beeves, with the defendant. The Court submitted these issues: 1. Did the defendant agree to furnish the plaintiff transportation, as alleged in the complaint ? Answer: Yes. 2.

Actiobt, tried before Lyon, J., and a jury, March Term,' 1908, of Edgecombe, to recover thirty acres of land. : Plaintiff offered evidence tending to show title to the land in controversy by reason of adverse occupation by himself and his father, Thomas Grimes.

<p>ActioN tried before Long, J., and a jury, April Term,' 1907, of-New HaNoveR. Defendants appealed.</p>

ActioN, tried before Neal, J., March Term, 1908, of LeNoie, to enforce collection of special assessment against property of defendants, jury trial having been formally waived by the parties.

<p>Railroads — Negligence — Lights — Signals — Crossings—Evidence— Nonsuit.</p> <p>Plaintiff’s intestate was killed by defendant’s train, consisting of an engine and twenty freight cars, ba'cking along its track on a dark night, without signals or warnings, and without lights on the rear car from the engine. At the place of the injury was an embankment on which was a track of another company running parallel with that of defendant. The injury occurred while plaintiff, an employee, was going home from his work, and crossing the tracks at a place where, to defendant’s knowledge, people usually crossed. The evidence tended to show that on top and about the middle of the train were two men standing with lighted lanterns. Held, a judgment as of nonsuit upon the evidence should not be sustained, as the question was for the jury to determine whether the lanterns could have been readily seen at the time, and under the circumstances, by an observant person on the ground.</p>

<p>ActioN tried before Oouncill, J., and a jury, March Term, 1908, of Randolph.</p> <p>The record shows that on 6 December, 1906, the Carnegie Steel Co. delivered to the Pennsylvania Railroad Co., at Pitts-burg, Penn., a carload of iron consigned to the Carnegie Steel Co., Asheboro, N. 0., “notify Asheboro Wheelbarrow and Mfg. Co.” The bill of lading was properly endorsed to the plaintiff company with a sight draft attached, and sent to bank for collection. Plaintiff paid the draft, took the bill of lading and received the carload of iron 17 January, 1907. It was delivered to defendant company at Alexandria 11 December, 1906, and reached Asheboro, N. O., 16 January, 1907. The distance between Alexandria, Ya., and Asheboro is 300 miles. The car should have moved about 100 miles a day. There was evidence tending to show the value of plaintiff’s plant, number of hands idle by reason of delay, wages paid, etc. The plaintiff sues for damages caused by tiie delay in delivering the iron. Defendant moved for judgment of nonsuit upon the plaintiff’s evidence; motion denied, and plaintiff excepted. Defendant submitted several prayers for instructions in regard to the measure of damages, all of which were refused; defendant excepted. His Honor instructed tlie jury that the measure of damages was the legal interest on the capital invested in the plant during the time it was necessarily idle, as a result of the delay, and the wages paid the hands during such time. Defendant excepted. There was a verdict for plaintiff, assessing its damages at $100. Judgment. Defendant duly assigned error and appealed.</p>

<p>1. Justice’s Court — Summons—Service on Non-Resident of County —Appearance—Waiver.</p> <p>By entering a general appearance and demurring, a non-resident defendant of tbe county waives or cures tbe defect, in proceedings against bim in a Justice’s court, for want of service of summons ten days preceding tbe trial, as prescribed by Eevisal, sec. 1451.</p> <p>2. Judgments — Justice’s Court — Summons — Service—Irregularity —Voidable.</p> <p>A judgment against a non-resident defendant of tbe county, obtained in a Justice’s court without having bad tbe ten days’ previous service of tbe summons, as required by Eevisal, sec. 1451, is not void but irregular, or, at most, voidable.</p> <p>3. Pleadings — Joinder of Actions — Demurrer—Misjoinder—Defense by Answer.</p> <p>When it appears, both by the summons and Justice’s return, in an action brought in his court, that the plaintiff alleged a • joint demand against the several defendants, a demurrer of defendants in the Superior Court for misjoinder of separate actions will not be sustained, as the allegations of the complaint must be taken as true, and such defense should be by way of answer. Revisal, sec. 477.</p> <p>4. Evidence — Declarations—Objections and Exceptions — -'Appeal and Error.</p> <p>Declarations made by a party and testified to on the direct examination by a witness, not objected to at the time, and gone fully into on cross-examination, cannot be considered on appeal.</p> <p>5. Evidence — Nonsuit.</p> <p>“When there is some evidence that defendant had acknowledged his liability for a debt sued on, a motion for judgment as of non-suit upon the evidence should be disallowed.</p>

ActioN tried before 17. B. Al}en, J., and a jury, May Term, 1908, of Gheene. This action was brought for the recovery of a part of a tract of land, known as Lot No. 1 in the division of the land of ITenry Edwards, deceased. The plaintiffs introduced in evidence the report of the commissioners to divide said land, by which it appears that Lot No. 1, including the land in controversy, was allotted to Richard Edwards, the father of Susan Beaman-.

<p>ActioN tried before 17. Ii. Allen, J., and a jury, February Term, 1908, of ObaveN.</p> <p>At the close of plaintiff’s testimony, and again at the close of the entire testimony, there was motion of nonsuit under the Hinsdale Act, motions refused, and defendant excepted. On issues submitted the jury rendered the following verdict:</p> <p>“(1) Did the defendant falsely represent to the plaintiff that, under the policies in controversy, the plaintiff would be repaid the amount of premiums paid by him, with about 4- per cent, interest thereon, at the expiration of ten years?</p> <p>Answer: £Yes.’</p> <p>(2) If so, did the plaintiff rely on said representations, and was he induced to accept said policies ?</p> <p>Answer: ‘Yes.’</p> <p>(3) Has the plaintiff waived the right to rely upon failure to deliver to the plaintiff policies that provided for the return of premiums paid, and about 4 per cent, interest, at the expiration of ten years?</p> <p>Answer: £No.’</p> <p>(4) Is the defendant indebted to the plaintiff, and if so, in what sum ?”</p> <p>And thereupon the Court rendered judgment as follows:</p> <p>“This cause coming on to be heard before his Honor, Judge W. E. Allen, and a jury, and being heard, and the jury having answered all the issues in favor of the plaintiff, except the one as to the quantum o.f damages, and the amount and dates of payments having been agreed upon, and it having , been agreed that his Honor should answer the issue as to the quantum of damages, and his Honor having found that the1-/payments together with interest on each up to the 10th. day of February, 1908, amounted to three hundred and fifty-nine and 63-100 ($359.63) dollars:</p> <p>“It is therefore considered by the Court, and adjudged that the plaintiff recover of the defendant three hundred and fifty-nine 63-100 dollars, with interest thereon, from the lOtli day of February, 1908, till paid, and the costs of the action to.be taxed by the Clerk.”</p> <p>Defendant excepted and appealed.</p>

<p>ActioN tried before Justice, and a jury, January Special Term, 1908, of GastoN.</p> <p>The action was to recover the amount of a note for $3,000, secured by a mortgage on property, executed by defendant Pinchback, endorsed by him to his co-defendant Smith, and by him assigned by endorsement to plaintiffs. On issues submitted, there was verdict for plaintiffs, and defendants excepted and appealed.</p>

Aotiok to recover land, tried before TV. B. Allen, and a jury, December Special Term, 1907, of Saiupsox. Plaintiffs, as children and issue of Edward L. Faison, deceased, claimed the land in controversy, under and by virtue of the will of Y\Tm.

<p>Employer and Employee — Negligence of Employee — Construction of Scaffold — Vice Principal.</p> <p>When an employee lias been instructed by tbe employer to do certain work upon a scaffold, and be was injured, owing to a negligent and faulty construction of tbe scaffold by another employee entrusted to build it, it is not necessary that tbe employee entrusted to build tbe sc'affold be a vice principal, in order to bold tbi? employer liable for an injury which is tbe proximate cause of tbe negligent act.</p>

<p>Water and Water Courses — Diverting Stream — Right of User— Extent of Right.</p> <p>W. A., during his life, diverted the waters of R. Creek, so as to run into H. Creek to obtain additional water to supply his mill, and made an obstruction or dam in R. Creek at a certain height. After his death, his lands were partitioned among his heirs at law, and there was evidence that the plaintiff received the part upon which tlie mill was situated, with a provision, including the “full power of the mill shoal and water power on both sides of the mill, so as to keep it in repair and convey water to the mill,” and the defendant received that part on which the dam on R. Creek was situated. Plaintiff sued for damages for defendant's obstructing his right to the use of the waters of R. Creek for milling purposes. Held, (1) It was not error in the trial Judge to instruct the jury that the plaintiff had the right to use the waters of R. Creek to the same extent as they find, from the greater weight of the evidence, W. A. had diverted it, if it was in contemplation of the commissioners at the time they made the partition; (2) The verdict being for plaintiff, he had the right to enter upon defendant’s lands for the purpose of keeping open the channel as originally used, and to keep np the dam at its original height; (3) The “full power” of the water is that required to run the mill with the dam at its original height, and it was not necessary for the jury, in this action, to find the quantity of water originally used.</p>

ActioN tried before Moore, J., and a jury, April Term, 1908, of LINCOLN. Defendant executed bis promissory note for $144.10 payable to A. E. Scarborough, being tbe amount of premium on three1 policies of insurance aggregating $5,000, issued by plaintiff company on the life of defendant. The note was transferred to plaintiff, before maturity, by Scarborough, who was its agent for the purpose of soliciting insurance policies.

ActioN tried before Moore, J., and a jury, May Term, 1908, of OabaRiius. This action was originally brought-against R. A. Brown. After the. pleadings were filed, defendant died leaving a last will and testament, and the present defendants, his executors-, were made parties.

<p>ActxoN beard by Jones, J., April Term, 1908, of Guil-KORD, upon petition for removal to tbe Circuit Court of tbe United States..</p> <p>From tbe judgment of bis Honor that tbe cause was not removable, tbe Southern Railway Co. appealed.</p>

ActioN tried before Ward, J., and a jury, October Term, 1908, of Wilkes. The plaintiffs are husband and wife, and were at the time of the transactions hereinafter mentioned. The plaintiff J•M. Tones, the husband, who is only a nominal party to the action, contracted to cut certain timber from a tract of land owned by him and his wife as tenants by entirety and deliver it at the defendant’s mill for a price fixed in the contract.

■ ActioN tried before Oouncill. J.. and a -jury, May Term, 1908, of Rowan. This is an action by tbe plaintiff against tbe defendant, bis wife, for divorce. It is alleged in tbe complaint that tbe defendant committed adultery with H. L. Reynolds in February, 1905, in the city óf Washington, and in the same month in the city of Richmond, Va., and in February or March, 1906, in -Spencer, N. 0.

AcxiON tried before Peebles, J., and a jury, August Term, 1901, of BueKe. r This action was brought to recover the possession of -one thousand acres of land, and damages for the detention. The real controversy is as to the true location of the land described in a grant to Jacob Anthony. This grant was intro duped by the plaintiffs to show title out of the State, and they claimed that by virtue of a deed of Margaret Erwin to their ancestor, II.

ActioN tried before Councill, J., and a jury, February Term,' 1908, of Ieedell. This action was brought by John Holler and wife to recover damages for delay in delivering a' telegram. It is alleged 'in the complaint that Mrs'.

ActioN heard by Ferguson, J., on exceptions to report of •referee, March Term, 1908, of Wilicbs. The exceptions of defendant were overruled, the report confirmed, and judgment rendered for plaintiff. Defendant excepted and appealed.

<p>1. Deeds and Conveyances — Controlling Calls.</p> <p>A definite call in a deed or grant for a corner or line of an adjoining tract of land, which is known and established, will control the course and distance, unless it is made to appear that, with a view of making the deed, and by physical survey, a different corner was established, or a different line was actually run and marked, and the instrument was executed by the grantor with the intent, at the time, to convey the land according to this actual Survey.</p> <p>2. Same — Misleading Instructions.</p> <p>A-Vhere the right of the parties depended on the correct location of a grant to J. W., and this grant for its beginning corner called for a AAr. 0. and gum, the beginning corner of grant to Benjamin Johnston, and there was evidence on the part of defendant fending to fix this corner of the Johnston grant at “A,” it was reversible error to charge the jury that “they should locate the grant to Benjamin Johnston, if they could, and use tlio evidence thereon to aid them in locating the James AVelborn grant.For it the corner of the Johnston grant, called for as the beginning course of the AVolborn grant, was fixed and established its correct location, on the facts presented, would fix and control the location of the beginning corner of the Welborn grant, and the jury should have been so instructed.</p>

<p>AotioN tried- before Webb, J., and a jury, March Term, 1908, of Duei-iaM. Plaintiff appealed.</p>

<p>ActioN tried before Ferguson, /./and a jury, February ■Term, 1908. Plaintiff appealed.</p>

PARTITION proceedings, tried by Ward, Jand a jury, April Term, 1908, of RutiieREord, upon issues joined in the pleadings before the Clerk. The plaintiff claimed under a deed alleged to have been executed and delivered to William Hunt, Sr., and introduced evidence to establish her contention. The defendant introduced no evidence. TJnder the direction of the Court the jury found for plaintiff. From the judgment rendered the defendants appealed, assigning three errors.

ActioN ill ejectment, tried before Ferguson, J., and a jury, May Special Term, 1908, of Wmoss, for tbe recovery of a tract of land. At the close of the testimony, • upon an intimation from the Judge as to how he would charge the jury upon a matter vital to the plaintiffs’ cause of action, they submitted to a nonsuit and appealed. The facts are stated in the opinion of the Court.

This was an action to recover a penalty alleged to have accrued against defendant for refusing to permit plaintiff, standard-keeper of Surry County, to examine and adjust defendant’s scales used by it at Pilot Mountain, N. C. There was no evidence that' the scales were used in “buying or selling.” Plaintiff showed that defendant used them in “weighing freight for shipment.” Iiis Honor being of the opinion that plaintiff could not recover rendered judgment of non-suit.

<p>1. Judgments, Proceedings to Set Aside — Irregularities—Motion in the Cause.</p> <p>Proceedings to set aside for alleged irregularities the final ■ judgment of a Court having jurisdiction of the parties and subject matter, should be by motion in the original cause and not by an independent action.</p> <p>2. Same — Lack of Parties — Equities.</p> <p>A final judgment of a Court having jurisdiction of the parties and subject matter will not be set aside for irregularities, when it appears that all of the parties in interest are not before the Court sq that the equities may be administered and full and complete justice done.</p>

<p>1. Carriers of Goods — Shipper’s Load and Count — Bill of Lading— Presumptive Evidence — Rebuttal.</p> <p>When it is admitted that it was the consignor’s duty to load a car for shipment, which had been placed at its mill for the purpose by the carrier, and that the carrier’s agent gave a bill of lading upon the statement of the consignor that the car had been loaded, without being required to verify the statement, the bill of lading is not presumptive evidence of the receipt of the contents of the car, for the carrier’s prima facie liability is rebutted by the admissions, and the question is an open one for the Jury, in a suit-by the consignee for the value of the contents of the car, and for the penalty for failure to deliver under Revisal, sec. 2632.</p> <p>2. Same — Burden of Proof.</p> <p>When, in a suit by the consignee against a carrier for the value of a carload shipment, and penalty for failure to deliver, under Revisal, sec. 2632, it was admitted that it 'was the duty of the shipper to load the car; and that the carrier was not required to verify the loading, but gave the bill of lading, in evidence, upon the statement of the shipper, the burden of proving the contents of the car is upon the consignor, under the doctrine that he who has the best opportunity of knowing the facts must prove them.</p>

<p>1. Deeds and Conveyances — Construction—Formal Parts — Intent of Grantor.</p> <p>The whole of a deed should be so construed as to effectuate the plainly expressed intention of the grantor, and so as to prevent the technicalities of the common law rule of construction, now obsolete, which regards the granting clause and the habendum and tenendum as separate and independent, each having its own special functions, from overriding the intention so expressed.</p> <p>2. Same — “Heirs"—Limitation in Habendum.</p> <p>The premises of a deed to land read, among other things, “unto said M. G., her heirs and assigns”; and the habendum, “to herself, the said M. G. during her life time, and at her death said land is to be equally divided between” her children. Held, (1) Since under the act of 1879, now Revisal, sec. 94G, the same estate would have passed if the word “heirs,” an established formula, had been omitted in the granting clause, there is no repugnance . in this deed between the granting clause and habendum; (2) The limitation of the estate in the habendum, and the creation of an estate in remainder therein,'were conclusive proof that there was no intention of the grantor to create an estate in fee, but an estate for life to M. G. with a remainder over to her children.</p> <p>3. Contracts to Convey .Lauds — Equity—Parties—Imperfect Title.</p> <p>Specific performance of a contract to convey an indefeasible title to lands will not be enforced in'equity against a purchaser, at the suit of one having the life estate, when those in remaim cler have not been made parties and would not be bound by "the decree.</p>

ActioN for restraining order beard by Moore, J., April Term, 1908, of Catawba. The undisputed facts appearing upon the record are: On 1 September, 1905, EL E. McCombs and another conveyed to. Mrs. O. W. Royster and N. E. Aull the land in controversy.

Action tried before Ferguson, J., and a jury, May Term* 1908, of Catawba, to recover damages for negligence alleged in tbe transmission and delivery of a telegram. Tbe nncontradicted evidence discloses tbe following case: Tbe feme plaintiff, on 4 September, 1901, was at ber borne in Catawba County, about twelve miles from Hickory, where defendant kept an office for tbe receipt and transmission of messages.

Cause beard on return to preliminary restraining order, before Webb, J., bolding courts Tenth District, on 1 October, 1908. The plaintiff, using bis complaint filed in tbe canse, as an affidavit, alleged, among other things, that he owned two thousand dollars of stock in defendant company, a. corporation, having nineteen thousand dollars of paid up stock,, owning a valuable plant and owing not more than twenty-eight hundred dollars.

<p>ActioN tried before Ward, J., and a jury," April Term,-1908, of. Rutherford. Plaintiff appealed.</p>

ActioN tried before Moore, J., and a -jury, April Term, 1908, of MbcKleNbueg. Defendant appealed. Tbe plaintiff in this action was a conductor upon a freight train of the Southern Railway Company, running bettveen Greenville and Charlotte. This freight train carried passengers in the caboose car, and on the occasion in question a passenger boarded the train at Belmont.

ActioN, tried before Ferguson, J., and a jury, September Term, 1908, of McDowjsll, on appeal from a Justice’s court. The action is brought to recover a balance due on verified account of $49.68. The defendant pleaded a payment of $29.18 on 6 July, 1906, by check, as follows: “MaRioN, N. C., 6 July, 1906. Pay to the order of Armstrong, Oator & Co. $29.18 (twenty-nine 18-100 dollars). To Merchants & Farmers Bank, Marion, N. C. (In full to date). D. N. LonoN.

PROCEEDINGS in habeas corpus, from Buree, heard before Justice, 9 June, 1908. The petitioner was duly convicted in the Superior Court of Burke County of the offense-of retailing spirituous liquors contrary to law, and whs sentenced to six months in jail, and to be worked on the roads of Gaston County.

<p>1. Issues — Harmless Error.</p> <p>An issue submitted that does not prejudice the rights of the complaining party, though unnecessary, the whole controversy being correctly determined upon another issue, is harmless error.</p> <p>2. Deeds and Conveyances — Contracts to Convey — Equity—Fraud or Mistake — Reasonable Relief.</p> <p>When the defense to an action for specific performance to convey land is that, as a part of the consideration for the contract, entering into the treaty and forming part of the negotiations, the plaintiff was to give defendant an option on another tract of land, which was not done, the contention does not necessarily involve an allegation of fraud or intentional wrong, but in this case only the question of a reasonably well grounded belief on defendant’s part that the option was to be given.</p> <p>3. Deeds and Conveyances — Contracts to Convey — Treaty—Negotiations — Written Contract — Parol Evidence — Fraud or Mistake.</p> <p>When the written contract to convey lands sued on is admitted to have been signed as written, but the defense is that specific performance should not be decreed, on the ground that the defend: . ant was induced to enter into it by tbe promise of tbe plaintiff to transfer to biro a certain option on another tract of land be beld, wbicb was not done, parol evidence of all tbe facts and circumstances surrounding tbe treaty and entering into tbe negotiation is competent, not to correct tbe writing, but to enable tbe Court to ascertain whether there was any element of mistake or unfair advantage in the transaction taken by tbe party seeking equitable relief.</p>

AotioN tried before Jones, J., and a jury, March Term, 1908, Of SCOTLAND. Plaintiff sues in two causes of action for recovery of damages sustained by personal injuries caused by tbe negligence of defendant. ' The undisputed facts are, that the defendant’s track runs through the town of Laurinburg, east and west, crossing, at right angles, Gill street and McLaurin avenue.

<p>INDICTMENT heard before TF. B. Allen, Term Time, of Greene. ,</p>

AotioN’beard before Peebles, J., and a jury, August Special Term, 1908, of Cumberland. At tbe March Term, 1908, of the Superior Court of Cumberland County, a Bill of Indictment, charging defendant with burglary in the second degree, was found by the grand jury.

, INDICTMENT for burning a barn in violation of sec. 3338', Revisal, tried before Jones, Jand a jury, March Term, 1908, of Union. The defendant was convicted and appealed'.

<p>INDICTMENT for larceny tried before Neal, J., and a jury, April Term, 1908, of Sampson.</p> <p>The defendant, -James Dixon, was convicted under the. second count in the bill for receiving, and sentenced to two years on the roads. From the judgment pronounced he appealed to the Supreme Court. •</p>

LdiotmeNT for keeping for sale intoxicating liquor contrary to a special act, heard before Jones, Jand a jury, May Term, 1908, of EichMOND. The defendant was indicted for keeping liquor for sale in the county of Eichmond, contrary to chap. 21 of the Laws of 1908. One of the questions in the case is whether there was any evidence against the defendant of a violation of the statute.

INDICTMENT tried before Neal, J.-, and a jury, August Term, 1908, of WilsoN.

<p>1. Indictment — Misdemeánor—“Feloniously"—“Second Offense”-L Surplusage.</p> <p>When the word “feloniously” is used in a bill of indictment for an offense which the statute makes a misdemeanor, it, and a charge of “guilty of a second offense,” are regarded as sur-plusage.</p> <p>2. Legislative Power — “Recorder’s Court” — Jurisdiction, Defined — . ■ Constitutional Law.</p> <p>The Legislature has the constitutional power to. create a “recorder’s court” of a city, giving it original jurisdiction over all criminal offenses below that of felony, and declare them to lie ■ “petty misdemeanors.”</p> <p>3. Same — Appeal—Trial by Jury.</p> <p>When a legislative act creates a court of original jurisdiction for the trial of petty misdemeanors, and prescribes an appeal to the Superior Court, the constitutional right of trial by jury is preserved. '</p> <p>4. Legislative Powers — Courts—Appeal—Grand Jury — Constitutional Law.</p> <p>No valid objection can he raised to the constitutionality of a court created by the Legislature, preserving the right of appeal to the Superior Court, because a grand jury is not the first to pass upon a bill of indictment charging the offense.</p>

<p>1. Murder — Evidence—Threats Previously Made.</p> <p>Upon trial under indictment for murder, evidence is competent of threats made’by prisoner against the deceased two weeks be- - fore the homicide.</p> <p>2. Murder — Conspiracy—Relationship—Evidence—Jealousy.</p> <p>The defendants, a man and woman, were tried for murder and both convicted, there being evidence that the former procured the latter to do the act, or conspired with her to that end. Held, evidence that prisoner and deceased were in lewd intimacy with feme defendant was competent both as showing her relationship with the defendant and jealousy as a motive for the homicide.</p> <p>3. Murder — Evidence of One Offense — Instructions—Guilty of Certain Offense or Acquittal.</p> <p>When, under an indictment for murder, the solicitor has elected not to prosecute for the capital offense, and the evidence points either to suicide of deceased or killing with premeditation of the prisoner, it was not error in the lower Court to charge the jury that they must render a verdict of guilty of murder in the second degree, or of acquittal.</p> <p>4. Evidence, Circumstantial — Motive — Instructions — Harmless Error.</p> <p>It is not necessary to prove motive in order to convict upon a trial for murder, but when circumstantial evidence is relied on, it may be shown to strengthen the chain of circumstances tending to establish guilt; where the trial Judge charged that motive was a strong circumstance pointing to guilt, but also charged that failure to show motive was a strong circumstance pointing to innocence, no error prejudicial to defendant's right was committed.</p>

Action heard by Webb, J., March Term, 1908, of Guil-ford, brought by the State against the defendant for slandering Carrie Fulton, his wife, under sec. 3640 of the Eevisal 'of 1905. Before pleading the defendant, through his attorneys, moved to quash the bill of indictment for the reason that no offence was charged, it not being a criminal offence for a husband to slander bis wife. ITis Honor sustained tbe motion, quasbed tbe bill of indictment, and tbe State appealed.

INDICTMENT for running freight trains on Sunday, in violation of the statute, tried before Lyon, J., and a jury, April Term, 19081, of Fbanklin.

ActioN tried before Webb, J., and a jury, April Term, 1908, of ANSON. Defendant was indicted for violating the provisions of sec. 3352 of the Eevisal, charging that he committed incest, in that he had carnal intercourse with a woman'who was the daughter of his half sister. There was evidence tending to prove the act. Defendant requested the court to instruct the jury to return a verdict of not guilty. ’ Denied and defendant excepted. Verdict of guilty. Judgment and appeal.

INDICTMENT for unlawfully selling spirituous liquors, etc., and intoxicating eider, to one Jim Ramsey, tried before Ferguson, J., and a jury, August Term, 1908, of Bubke. ■Tim Ramsey, for the State, testified that he had bought such liquor, etc. There was dispute and contradictory testimony as to whether the cider sold was intoxicating.

<p>INDICTMENT for murder, tried before Justice, Jand a jury, March Term, 1908, of Watauga. Defendant appealed.</p>

INdictmbNt against defendants for secret assault, -tried before Ferguson, and a jury, March Term, 1908, of Wilkes. ' Jesse Fairchild, a witness for the State, testifying to the occurrence, said: “On the night of 13 November, 1907, between 11 and 12 o’clock, I was waked up by the roar of guns; shots were being rapidly fired into the house. There were 'some forty or fifty shots fired. They were shooting through the window toward the bed occupied by W. A. Fairchild.

<p>INDICTMENT for murder tried before. Ferguson, J., and a jury, Fall Term, 1908, of Yancey. Defendant appealed.</p>

<p>1. Intoxicating Liquors — Procuring Sale — Construction of Statute— Agency — Principal.</p> <p>Revisal, sec. 3634, making it unlawful for any one to procure for and deliver spirituous liquors to another, and making such person, in law, the agent of the seller, and punishable, though its meaning is not plain, makes the one procuring liquor by purchase from an illicit dealer, in prohibited territory, and delivering it to another, the agent of the seller, and subjects him to the punishment prescribed therein, as a principal in the misdemeanor.</p> <p>2. Same — Evidence—Incompetent.</p> <p>If one buys whiskey for another from an illicit dealer in prohibited territory, without being interested in the sale otherwise than as agent of the purchaser, to whom he delivers it, and pays the money to the seller for the buyer, it is a wrongful procuring of the whiskey of another within the meaning of Revisal, sec. 3534; and his testimony, that he was acting solely as agent for the buyer, cannot change the character of the act from that intended by the statute.</p>

ActioN tried before Peebles, J., and a jury, April Term, 1908, of Buncombe, on appeal from police court. From judgment rendered defendant appealed to tbe Supreme Court. Tbe defendant was charged before the police court of Asheville with a violation of the billboard ordinance of that city, as follows: “Section 1.

ActioN tried before Ferguson, Jand a jury, July Term, 1908, of McDowell. This was a prosecution instituted before a Justice, and carried by appeal to the Superior Court. Pursuant to the provisions of sec. 1684, Rev., an election was held in McDowell County for the purpose of ascertaining whether the-.“stock law” should be established in said county, at which a -majority of the votes were cast for the law.

INDICTMENT for murder, tried before Peebles, J., and a jury, July Term, 1901, of SwaiN. The solicitor announced that the State would not ask for a verdict of murder in the first degree. The defendant was convicted of manslaughter, was sentenced to three years’ imprisonment in the State’s prison, and appealed.

ActioN tried.before Ward, J., and a jury, August Term, 1908, of BunooMbe. Tbe defendant was indicted for tlie murder of Alma 'Green. The evidence tended to show that he was riding in the front compartment of a car on a train which runs from Asheville to Hendersonville.

ActioN tried before Ferguson, J., and a jury, Fall Term, 1908, of Polk. The prisoner was indicted for, and convicted of, the murder in the second degree of R. F. W. Alston, and appealed from the judgment of the Court. • '

<p>Action tried before Peebles, JJuly Term, 1908, of SWAIN.</p>

AotioN tried before Peebles, J., and a jury, July Term, 1908, of SwaiN. Defendant was charged with wilfully and unlawfully building and maintaining a barbed wire fence along a public road and within ten yards thereof, without putting a railing or plank on top of said fence, not less than three inches wide, in violation of the statute.

ACTION tried before Moore, J., and a jury, February Term, 1908, of Gaston. Will Oloninger, John Oloninger, Charles Costner and Tol-lie Oloninger were indicted for the murder of John Mauney. Tollie Oloninger was acquitted. 'The others were each convicted of manslaughter and sentenced respectively, in the order of their names as above, to throe, two and one year each on the public roads, and appealed.