Volume 150 — North Carolina Reports

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

<p>ActioN tried before Lyon, J., at March Term, 1908, of Nash, for the recovery of damages for the negligent killing of George "W. Strickland.</p> <p>At tbe conclusion of tbe plaintiff’s evidence, and again at tbe conclusion of all tbe evidence, tbe defendant moved to nonsuit, wbicb motion was overruled, and tbe defendant excepted. The court submitted issues to tbe jury, wbicb were found for plaintiff. From tbe judgment rendered tbe defendant aj>pealed.</p>

AotioN tried before Peebles, J., and a jury, at November Term, 1907, of Bueke. This action was brought by the feme plaintiff to recover damages for an alleged false and wrongful arrest and detention. S. Montgomery Smith and W. H. Reynolds were named as defendants in the summons, but were never served, and the case proceeded to trial as to the Champion Fiber Company. There 'was judgment of nonsuit at the conclusion of the evidence, and plaintiffs appealed.

ActioN tried before Peebles, J., and a jury, at August Term, 1908, of Cherokee. This action was brought to recover damages for the seduction of the plaintiff’s daughter. .

ActioN tried by Peebles, J., and a jury, at May Term, 1908, of Madison. • Tbis action was brought to enjoin tbe defendants from selling certain land conveyed to tbe plaintiff Fannie E. Lance under a power of sale contained in a deed of trust, until tbe amount due on tbe debt secured by tbe said deed of trust, wbicb was in dispute, could be ascertained.

AotioN tried before Peebles, J., and a jury, at March Term, 1908, of Buncombe.

<p>ActioN -from MontgoMERY, beard at chambers, before Goun-cill, <7., holding the Spring Terms, 1908, of the Tenth Judicial District.</p>

ActioN beard before Ferguson, J., at November Term, 1908, of HgndeRson, a jury trial having been formally waived. Defendant appealed.

ActioN tried before Lyon, J., and a jury, at April Term, 1908, of Fbanklin, for damages for personal injury. The court submitted the usual issues. The jury found for plaintiff, and from the judgment rendered the defendant appealed.

ActioN tried before W. B. Allen, J., and a jury, at Fall Term, 1908, of Jones, to recover damages for cutting timber upon certain lands belonging to plaintiff. .These issues were submitted to the jury: 1. “Was the plaintiff the owner of the land described in the complaint?” Answer: “Yes; a one-half interest.” 2. “If so, did the defendant wrongfully cut timber thereon not conveyed by the deeds of 0.

<p>Action tried before Ferguson, J., and a jury, at June Term, 1908, of Caldwell.</p> <p>Tbis is a proceeding under section 1709 of tbe Revisal, in wbicb tbe plaintiff filed a protest to an entry by tbe defendant of a'certain tract of land in Caldwell County, containing 300 acres, more or less. Tbe question is whether there was any vacant land within tbe boundaries described in tbe entry. Tbe defendant introduced in evidence a grant to George N. Folk, No. 893, tbe calls of wbicb were as follows: “Beginning on tbe hillside south of Lost Cove Creek, S.'W. corner of entry No. 3058, and running north with tbe line of tbe entry, crossing Lost Cove Creek, 300 poles to a stake in J. M. Webb’s line; thence west with bis line 20 poles to bis S. W. corner; thence no'rtb with bis line 20 poles to a stake, corner of No. 3069, and thence by various courses and distances (given in tbe grant) to tbe beginning.” There was evidence tending to show that tbe southwest corner of entry No. 3058 was at a chestnut, and that if tbe lines of grant No. 893 should be run north 300 poles with tbe line of tbe entry to Webb’s line, and thence west with Webb’s line to bis southwest corner, there would be no vacant land within tbe boundaries of defendant’s entry. J. M. Houck, who surveyed the land under tbe warrants, testified that be ran a line east from Webb’s southwest corner 20 poles, and established a corner and located tbe line from that point to tbe chestnut, tbe beginning corner, by construction and not by actual survey. He also stated that tbe calls, courses and distances in grants numbered 889, 893 and 895 correspond with tbe lines as surveyed by him.</p> <p>Among other instructions given, tbe court charged tbe jury as follows: “If you should find from tbe evidence that tbe surveyor, who surveyed under tbe warrant of tbe entry, actually located and established a corner by driving a stake and marking witnesses to it at 20 poles east of Webb’s corner, then tbe grant would run to it.” Tbe jury returned a verdict for tbe defendant. Tbe court, being of tbe opinion that tbe instruction above quoted was erroneous, set aside tbe verdict and ordered a new trial. Tbe defendant excepted and appealed.</p>

ActioN tried before Peebles, J., upon demurrer, heard at May Term, 1908, of Buncombe.

<p>1. Deeds and Conveyances — Interpretation—Wills.</p> <p>When the language of a paper-writing is that of a deed, describes the lands and contains the usual habendum clause, recites a valuable consideration and is therein expressly spoken of by the maker as a deed, the writing cannot be interpreted as a will and is not revocable by the maker as such.</p> <p>2. Deeds and Conveyances — Interpretation—Estates in Futuro— Title — Possession.</p> <p>An estate of freehold may commence in futuro in this State; and when a deed expresses “the purpose and intent” to convey the lands described, and contains the words “title is vested” in the. grantor “during his natural life, then passes to” M., the reservation of the “title” during the grantor’s life is construed as the reservation of the possession.</p>

ActioN from Macon, beard by Ferguson, J., on 22 June, 1908, on return to preliminary restraining order.

<p>1. Champerty and Maintenance — Officious Interference.</p> <p>A contract or agreement will not be held within the condemnation of the principle relating to champerty or maintenance unless the interference by the party charged therewith is clearly officious and for the purpose of stirring up strife and continuing litigation.</p> <p>2. Same — Interest. *</p> <p>An agreement of a party to give aid in the' prosecution of a suit in the determination of which he has an actual interest is not invalid for maintenance or champerty.</p> <p>3. Same.</p> <p>A party who has a valid debt against an estate of deceased may make a valid contract with the heirs at law to “do everything proper and legitimate and to aid them in every way to recover said estate,” in a suit to be instituted for that purpose, in consideration of payment of his debt upon recovery; and the contract is not officious or objectionable as being one of maintenance or champerty, and is enforcible upon the recovery of the estate, the subject of the agreement.</p> <p>4. Public Policy — Witness—Contract—Agreement to Testify — Consideration.</p> <p>An agreement by a party to give all true evidence when-called on in any suit it may be deemed necessary to bring to recover an estate in which lie lias an interest, is not void as against public policy, when there is no indication that he was to receive payment therefor beyond that which the law allows to a witness and to which he would be legally entitled.</p> <p>5. Pleadings — Demurrer—Allegations Taken as True.</p> <p>When 5m action is dismissed upon demurrer to a complaint the statements made therein will be accepted as true and interpreted in the light most favorable to the plaintiff.</p> <p>6. Pleadings — Demurrer—Fraud—Questions for Jury.</p> <p>Upon reversing on appeal the judgment of the trial judge sustaining a demurrer to a complaint, questions of fraud and undue influence alleged in the answer are for the consideration of the jury.</p>

<p>1. Tenants in Common — Possession by One — Tax Sales — Deeds and Conveyances — Trusts and Trustees.</p> <p>A tenant in common in sole possession assumes an implied obligation to sustain the common interest. When he permits the land to be sold for taxes, without notifying his cotenants, and conveyed by a sheriff’s deed to a stranger, and takes a deed from him, he holds as trustee for the cotenancy. ■</p> <p>2. Same — Judgments—Reference.</p> <p>When a tenant in common has wrongfully permitted the lands of the cotenancy to be sold for taxes to a stranger, and acquires his deed from him, it is proper for the court to order, at the suit of his eotenants, that his cotenants be let into possession, and a reference to state an account as to waste and betterments, disbursements for taxes and receipts of rents and profits within three years next before the commencement of the action.</p> <p>3. Tenants in Common — Possession by One — Deeds and Conveyances — Tax Sales — Revisal, sec. 2860.</p> <p>Revisal, sec. 2860, authorizing one tenant in common to pay his share of the taxes or to redeem his share of the land after-sale for taxes, applies to instances in which all the tenants stand on the same footing in regard to possession, and does not apply when one tenant is in possession for all.</p> <p>4. County Commissioners — Deeds and Conveyances — Tax Sale — Certificate — Foreclosure.</p> <p>A deed to land made by the county commissioners for land sold for taxes and bought in by them (in 1899) without foreclosure of the certificate is void.</p>

, at Webster, N. C., on 17 October, 1908. On the hearing the court found that a jmeliminary restraining order, commanding the defendant, the Champion Fiber Company, its agents and employees, and all persons acting for it, from cutting timber on certain tracts of land claimed by plaintiffs and fully set forth and described, had been duly served and had been thereafter willfully violated by said defendant and Harry Eotha, its agent and employee, superintendent of the woods…

<p>Appeal and Error — Certiorari—Case as Settled.</p> <p>When it appears, on examination of the transcript on appeal, that certain papers were sent up by the clerk as a part thereof which had been excluded by the order of the trial judge, and that others were omitted which the judge had ordered to be included, the record will be remanded, on motion, to the clerk, with direction to correct the transcript in accordance with the order of the judge.</p>

ActioN beard by Quion, J., wbo found tbe facts, by consent, .at May Term, 1908, of Jackson. Tbe Court, upon tbe pleadings and admissions, found tbe following facts material to tbe decision of tbis appeal : Tbe General Assembly of North Carolina, at its session of 1889, chartered tbe Carolina Mining, Manufacturing and Improvement Company (chapter 159, Private Laws 1889).

- AotioN tried-before Moore, J., and a jury, at 'July Term, 1908,- of Mitchell.

<p>Appeal by plaintiff from Lyon, J., at March Term, 1908, of Nash.</p>

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

<p>1. Vessels — Repairing—Negligence—Measure of Damages.</p> <p>Tbe measure, of damages for work defectively done on a vessel in caulking and otherwise repairing it is the necessary costs of having the defects repaired and interest on the value of the vessel, hire of employees,, and the like, during the additional delay caused by the defective work.</p> <p>2. Vessels — Repairing—Negligence—Counterclaim.</p> <p>A counterclaim for damages on account of defective work in caulking and otherwise repairing a vessel may be set up in an action to' recover for the work.</p> <p>3. Same — Judgment—Estoppel.</p> <p>When it has been adjudicated in a former action that the defendant in this action had performed his contract to repair the vessel of the present plaintiff, the plaintiff is estopped to claim damages arising from defective work alleged to have been done thereon.</p> <p>4. Vessels — Repairing—Negligence—Damages Remote.</p> <p>A recovery of damages for destruction by fire of plaintiff’s vessel, caused by a leak alleged to have been the result of defendant’s defective work in caulking and repairing it, by admitting the water to four barrels of lime stored in it, is too remote, in the absence of notice that the vessel was to be used for carrying lime.</p> <p>5. ‘Vessels — Repairing—Contributory Negligence.</p> <p>It is incumbent on plaintiff to allege and prove that be used due diligence to discover that defendant’s work on his vessel was defective, and that he could not discover the work was so, or that the vessel would leak, until too late to avoid the consequences, in order to recover damages alleged to have resulted from the defective work while the vessel was at sea.</p> <p>6. Same — Proximate Cause.</p> <p>To start a vessel on a voyage upon the assumption that defendant had properly caulked and repaired it, without inspection or trial, is such gross negligence on the part of plaintiff as to be the proximate cause of the vessel’s destruction by a leak, in an action for damages on the ground that the leak was caused by defendant’s defective work. * .</p>

AotioN beard before Guión, J., upon the pleadings and admissions, at November Term, 1908, of Pasquotaníl Tbe defendant corporation^ on 30 December, 1902, conveyed to one Andrew Brown a parcel of land, described by metes and bounds, in Elizabeth City, N. C. Following tbe description of tbe property tbe deed contains tbe following language: “Tbe said party of tbe first part also leases to tbe said party of tbe second part tbe right of way, as at present located, through tbe…

ActioN to obtain a peremptory writ of mandamus, heard on complaint and answer before Peebles, J., at Fall Term, 1908, of Cherokee.

<p>AotioN tried before Coohe, Jand a jury, at November Term, 1908, of Bertie.</p> <p>This action is to recover two mules and two logging wagons.</p> <p>On issues submitted, the jury rendered the following verdict:</p> <p>1. “Are the plaintiffs, Walker & Myers, the owners and entitled to the possession of the two mules described in the complaint and taken in claim and delivery?” Answer: “Yes.”</p> <p>2. “Was defendant in wrongful possession thereof when this action was brought?” Answer: “Yes.”</p> <p>3. “What is the value of said mule?” Answer: “One hundred dollars.”</p> <p>4. “Were the plaintiffs, Walker & Myers, the owners and entitled to the possession of the two log wagons described in the complaint?” Answer: “Yes.”</p> <p>5. “Was the defendant in the wrongful possession of said wagons when this action was brought?” Answer: “Yes.”</p> <p>6. “What is the value of said wagons ?” Answer: “Sixty-six dollars.”</p> <p>7. “Did the plaintiffs, Walker & Myers, break their contract with defendant Cooper, as alleged in his answer ?” Answer: “No.”</p> <p>8. “If so, what damage has defendant sustained?” Answer:</p> <p>9. “What is the balance due plaintiffs, Walker & Myers, on their account against the defendant ?” Answer: “One hundred and ninety-six dollars and three cents.”</p> <p>There was judgment on the verdict for plaintiffs, and defendant excepted and appealed.</p>

<p>Action tried before W. R'. Allen, J., and a jury, at December (Special) Term, 1907,-of Sampson.</p> <p>Plaintiff appealed.</p>

<p>1. Executors and Administrators — Limitation of Actions — Revisal, Sec. 367, When Operative.</p> <p>•An. action which was not barred in the debtor’s lifetime can be maintained against his personal representative to recover a debt, when the cause of action survives him, after the statute has run, if brought within one year after the issuance of the letters of administration; and when the letters of administration have been issued'before the operative effect of Revisal, sec. 3G7. the provision that such should have been issued within ten years from the death of- the intestate is inapplicable.</p> <p>2. Executors and Administrators — Limitations of Actions, by Whom Pleaded — Heirs at Law — Lands.</p> <p>The heirs at law can successfully plead the statute of limitations (Revisal, see. 367) against the administrator seeking to subject their lands to the payment of deceased’s debts as fully as he can against a creditor.</p> <p>3. Executors and Administrators — Judgment Liens — Statute of Limitations.</p> <p>There is no statutory provision which prevents the expiration of a judgment lien in case of death and administration similar to that of Revisal, sec. 367.</p> <p>4. Same — Deeds and Conveyances — Intestate’s Deed — Fraud—Procedure.</p> <p>When intestate has made a bona fide conveyance of land, subject to lien by judgment, his administrator cannot sell it to make assets to pay the judgment after the expiration of the judgment lien. Questions of fraud in intestate’s deed left undetermined in this case can be passed upon on a new trial awarded. Revisal, sec. 87 (5), applies to funds in the administrator’s hands.</p>

<p>ActioN tried before Webb, J., and a jury, at September Term, 1908, of Pasquotank.</p> <p>Defendant appealed.</p>

PROCEEDING under the entry laws, heard before Ward, J., at Fall Term, 1908, of Perquimans. From a judgment sustaining the protest filed by defendant the plaintiff (the enterer) appealed.

ActioN tried before Guión, J., and a jury, at October Term, 1908, of EeaufoRt. Plaintiff made a contract with the defendants to build two houses for them.

<p>1. Insurance — Policy—Conditional Delivery — Payment of Premiums.</p> <p>A contract of life insurance delivered upon condition that, it would be effective only if the advance premium should have been paid in the lifetime and good health of the insured is not binding when these conditions have not been complied with by him.</p> <p>2. Same — Prima Facie Case — Rebuttal.</p> <p>While the production of a policy of life insurance on the trial is prima facie evidence of its validity as a binding contract, the presumption may be rebutted by proof that it was delivered upon condition that the advance premium must be paid in the lifetime and good health of the insured, which was not done.</p> <p>3. Same.</p> <p>When the insured has received possession of a life insurance policy under agreement that it was to be effective, at his option, only upon payment of the advance premium in his lifetime and good health, his administrator may not recover thereon when he did not notify the company of his election to take the policy and failed to perform the condition upon which the contract was to be binding.</p>

ActioN tried before W. B. Allen, J., and a jury, at August Term, 1907, of Halifax.

ActioN tried before Ward, J., at Fall Term, 1908, of Per-quimans. Plaintiff appealed. Tbis action was brought to recover damages for a breach of contract in the sale of an engine by the plaintiff to the defendant. It appears that the plaintiff ag’reed to sell and deliver to the defendant a Corliss engine of a certain description and weight, and that the engine, which was delivered under the contract, was not of that description or weight and was defective in other respects.

<p>ActioN beard before Guión, J., at December Term, 1908, of BEAUFORT.</p> <p>On 12 Time, 1907, defendant issued to plaintiff its policy, insuring bis life in tbe sum of $5,000'“and for a weekly indemnity of $25 for tbe term of twelve months from 12 June, 1907.” For a total disability tbe defendant agreed to pay tbe said sum, and for a partial disability one-balf thereof. Tbe policy provided that if tbe disability continued less than thirteen weeks tbe amount should be payable at tbe termination of tbe disability; and if for longer’duration, at tbe end of thirteen weeks from tbe date of tbe accident or illness. Tbe plaintiff, on 23 October, 1907, filed with tbe company a claim for indemnity for total disability of eight weeks and for partial disability of seven weeks, amounting to $275. Tbe claim was not controverted, and on 31 October, 1907, defendant sent to plaintiff its draft for tbe full amount. Attached to tbe draft was a paper containing tbe following language:</p> <p> “To Maryland Casualty Company, Baltimore, Md. </p> <p>“Claim No. 619 J. D. is Policy No. DX 44178.</p> <p>“Tbe above draft must be endorsed on back, and tbe attached voucher signed and sealed by the payee.</p> <p>“Voucher No. A10059. — In consideration óf tbe payment of tbe above draft for $275, I hereby discharge and release tbe Maryland Casualty Company from all claim for indemnity under Policy No. DX 44178 on account of illness beginning on 6 July, 1907.</p> <p>• “It is understood that this payment shall not be construed as an admission of any liability on the part of the company for the said accident or illness or results therefrom.</p> <p>“Dated at Washington, N. C. Witness my hand and seal, this 5 November, 1907.</p> <p>“E. B. Moore. [Seal.]</p> <p>“Elias B. Moore..</p> <p>“Witness: L. A. Squires,</p> <p>S. 0. Pegram.</p> <p>“Endorsement: Elias B. Moore.”</p> <p>The draft was paid upon presentation. Thereafter jfiaintiff filed a claim for indemnity for partial disability for eleven weeks, amounting to $137.50. The partial disability was caused by a continuation of the sickness beginning 6 July. Defendant refused to pay the claim, and plaintiff prosecutes this action to recover the amount demanded. Defendant relies upon the voucher of 31 October, 1907, as a release and discharge of all further claim on account of said sickness beginning 6 July, 1907. The partial disability of plaintiff is not controverted. Upon appeal from the justice’s court, the cause was heard in the Superior Court, when his Honor instructed the jury that plaintiff was entitled to recover. Defendant duly excepted. Judgment and appeal by defendant.</p>

ActioN from Beaueobt, heard upon demurrer to complaint by Peebles, J., by consent, at chambers, in Elizabeth City, 14 January, 1909. The plaintiff brings this action to enjoin the issuing of certain bonds by tbe municipality of Belhaven. Upon a hearing before his Honor, Judge Peebles, the injunction to the final hearing was denied. The plaintiff appealed. The facts are stated in the opinion of the Court.

<p>PbtitioN to rehear, and motion for new trial for newly discovered evidence in this case, reported in 149 N. C., 185.</p>

ActioN tried before Ward,,. J., and a jury, at Fall Term-, 1908, of Camden.

<p>ActioN tried before Ward, J., and a jury, at July (Special) Term, 1908, of Tyrrell.</p> <p>The complaint alleged, and there was evidence tending to show, that plaintiffs, on 12 September, 1899, bad sold to defend-ant the timber of given dimension, to wit, measuring 14 inches at the stump, standing on a large body of land in Tyrrell County, at a contract price of $1,900, with a right to cut and remove the same within a specified time — three years, with privilege of two years more hy paying interest — and with the right, further, to cut timber below the dimension given for the purpose of constructing tramways, etc., necessary and required for the cutting and removing of said timber; that defendant had entered on said land and had cut and removed the timber specified and had paid the contract price therefor.</p> <p>The complaint further alleged, and there was evidence tending to show, that defendant was occupying said land under and by virtue of the contract, and had cut a large quantity of timber standing on same below said dimension and not covered and contained in the contract, causing much spoil and injury, to 'plaintiffs’ damage.</p> <p>The contract on its face tended to show that plaintiffs, at the time of the sale, had deeds for the land and covenanted that they were the owners of the timber sold, and that they would warrant and defend the title to same, etc.</p> <p>'Defendant moved to dismiss tbe action, on tbe ground tbat plaintiffs bad shown no evidence of title to tbe land tbat would justify a recovery for damages done thereto by cutting timber not embraced within tbe contract stipulation. Motion overruled, and defendant excepted. Defendant contended, further, tbat tbe testimony tended to show a continuing trespass; and inasmuch as a part of tbe wrongful cutting alleged was shown to have been more than three years before tbe action was commenced, tbe entire wrong was brought within tbe protection of tbe statute of limitations. This position was overruled, and defendant excepted.</p> <p>In tbe course of tbe trial defendant offered in evidence grants covering all or a portion of tbe land in question, issued to Jobn Gray Blount, bearing date 1196; and, further: “2d. Deeds made in 1904, registered same year in said count, from tbe only heirs at law of John Gray Blount, who died about 1836, said deeds conveying the said lands to certain parties, and mesne conveyances from tbe said grantees, made in 1904, to defendant company, said conveyances being properly registered in Tyrrell County during tbe year 1904.”</p> <p>It was admitted by tbe plaintiffs tbat tbe said grant and deeds covered part of tbe lands mentioned in tbe contract, and tbat tbe parties who signed tbe said deeds to tbe grantees of tbe defendant company were, at the time of executing same, tbe only living heirs at law of John Gray Blount, who died many years before; tbat tbe said deeds were registered in said county after tbe said cutting of timber bad commenced and before it was ended.</p> <p>Tbe court ruled tbat said title in the defendant was immaterial, and tbat, tbe defendant having entered these lands under the contract, tbe defendant could not deny tbe plaintiffs’ title to tbe timber cut by tbe introduction of these deeds. Defendant excepted.</p> <p>There was a verdict for $2,000 damages for wrongful cutting of timber on tbe land within three years next before action brought, and excluding any recovery for injury prior to tbat time by reason of tbe statute of limitations.- Judgment on tbe verdict for plaintiffs. Defendant appealed, and assigned for error:</p> <p>1. Tbe failure to dismiss tbe action as on judgment of non-suit.</p> <p>2. Tbe ruling that tbe evidence offered was irrelevant and incompetent.</p> <p>3. Tbe refusal to bold that all recovery was barred because a part bad been more tban three years, and tbe evidence showed that tbe cutting was continuous.</p>

<p>Action heard before O. H. Allen, J., and a jury, at August Term, 1908, of Pitt.</p>

<p>ActioN from Beaufobt, beard at chambers, on case agreed, bj Guión, J., at Fall Term, 1908.</p> <p>Defendants appealed.</p>

<p>ActioN beard by 0. H. Allen, J., upon report of referee, at December Term, 1908, of Gbebne.</p> <p>Appeal by Fairelotb & Dail.</p>

ActioN from Greene,- beard by 0. II. Allen, J., at chambers in Kinston, upon report of the receiver and referee, 22 December, 1908. Appeal by Snow Hill Banking and Trust Company, mortgagee of parties plaintiff.

ActioN tried before Guión, J., and a jury, at December Term, 1908, of Beaufort. This action was brought for the redemption of a mortgage, and was tried in the court below upon the following facts: 1. The mortgage was executed by Robert Green and S. T. Hooker to Lawrence Hooker on a lot in Washington, N. 0., 13 April, 1905, to secure the sum of $1,500 due by note, payable 1 January, 1906, with 6 per cent interest. 2.

AotioN tried before O. H. Allen, Jand a jury, at November Term, 1908, of Pitt. There was a verdict and judgment for defendants, and plaintiff appealed.

Action tried before O. H. Allen, J., and a jury, at November Term, 1908, of Craven.

AotioN tried before Goolee, J., and a jury, at Fall Term, 1908, of Halifax. Plaintiff sues to recover damages for burning wood on ber land by tbe negligence of defendant’s employees. Tbe cause of action was not denied. ■ Tbe exceptions upon wbicb .defendant relies relate to tbe amount of damages sustained by plaintiff. There was a verdict for $450. Judgment; appeal.

Actiow tried before O. II. Allen, J., and a jury, at November Term, 1908, of Ckaven. Held: in effect, that there was no evidence tending to show a valid contract between plaintiff and defendants for cutting the entire timber on the Nixon tract, as claimed by plaintiff, and withdrew the issue addressed to that question from the jury, and plaintiff excepted.

ActioN tried before 0. II. Allen, J., and a jury, at October Term, 1908, of Chayen. Tbe testimony discloses tbe following case: Plaintiff, a feme .covert, being tbe owner of a tract of land described in tbe complaint, conveyed to tbe Norfolk and' Southern Railway Company a right of way over said land upon which to construct a roadbed and track for its use as a common carrier.

Action brought to remove a cloud upon plaintiffs’ title, beard before Guión, J., and a jury, at March Term, 1908, of G-baham.

ActioN beard by 0. H. Allen, J., on appeal from a justice’s count and on facts agreed, at Fall Term, 1908, of Okavbn. Erom tbe facts formally agreed upon, as stated, it appeared tbat Barbara Wooten bad died, at tbe time of ber death being a member in good standing in defendant company and bolding a policy of insurance or certificate of said company, and in wbicb tbe plaintiffs, tbe brother and sister of deceased, bad been originally designated as beneficiaries.

ActioN tried before W. R. Allen, J., and a jury, at November Term, 1908, of Edgecombe, to recover damages alleged to have been caused by defendant’s negligence. Defendant appealed.

<p>1. Corporations — Stockholders—Pooling Stock — Agreement Void.</p> <p>An agreement for the purpose of pooling stock in a corporation to control or apportion the directors is void, and no rights can be acquired thereunder by the parties.</p> <p>2. Corporations — Stockholders—Pooling Stock — Agreement to Vote— Proxy — Limitations of Power.</p> <p>A written agreement assigning stock in a corporation with authority to vote, reserving to the assignors, who retain possession, the right to all dividends, amounts only to a proxy (Revisal, sec. 11S5) and, after the expiration of three years, it cannot be voted. Revisal, sec. 1184.</p> <p>3. Corporations — Stockholders—Voting Cumulative — Officers—Adjournment.</p> <p>The right to cumulative voting given by Revisal, see. 2831 (3), is with the proviso that the minority stockholders openly announce that they will exercise such rights, when it appears that one person owns or controls' more than one-fourth of the capital stock, and it cannot be exercised when only one proposition is voted upon or on a motion to adjourn. (The principles and effect of cumulative voting discussed by Clark, O. J.)</p> <p>4. Corporations — Stockholders—Illegal Voting — Adjournment—Majority Vote — No Quorum.</p> <p>When a motion to adjourn a stockholders’ meeting has been carried, and a sufficient number have withdrawn to reduce the number of those present below a majority of all the stock issued and outstanding (Revisal, sec. 1182), an election of officers cannot be lawfully held thereafter at that meeting, though the adjournment were carried by an* illegal vote.</p> <p>5. Corporations — Stockholders—Illegal Voting — Adjournment— Status of Meeting — Result—Power of Court.</p> <p>The court can only declare the true result of a vote by the stockholders as to some measure or the election of officers ■ illegally announced after a vote thereon, because of the illegal admission or rejection of certain votes; but as to an adjourned meeting to be held, stockholders uot represented at the first meeting and new stockholders are entitled to vote, and hence the legal status as to the adjourned meeting cannot be established until that meeting and the vote taken, and an injunction cannot issue against certain stockholders voting at such meeting.</p> <p>6. Corporations — Stockholders’ Meeting — Adjournment—Ordered by Court.</p> <p>A mandamus sought under the provisions of Revisal, secs. 1188 and 1189, cannot issue to compel the reconvening of the stockholders for the election of directors because of an illegal adjournment to a certain date by unlawful voting of stock, when that date has passed. The provisions of section 1188 should be followed, requiring that upon the failure of the directors for thirty days to call a stockholders’ meeting for the purpose, after a written request from the owners of one-tenth of the outstanding shares of stock, the judge may, on application of a stockholder and on notice to the directors, order an election, etc.</p> <p>7. Same — Quorum, How Ascertained — Notice to Stockholders.</p> <p>A meeting of the stockholders of a corporation ordered upon application by the judge' in accordance with the provisions of Revisal, sec. 1188, must be composed of a majority of shares held twenty days before such meeting, as it appears from the stock book or, in ease of discrepancy, the transfer book of the corporation. The notice of such call, by custom and by analogy to Revisal, sec. 1190, should be mailed to all stockholders whose address is known.</p> <p>8. Parties, Defective — Procedure—Demurrer.</p> <p>Objection- for defect of parties must be made by demurrer or answer; otherwise it is waived.</p> <p>9. Stockholders — Transfer Books.</p> <p>When there is a discrepancy between the stock book and the transfer book, the latter controls. Revisal, 1181.</p>

ActioN tried before Guión, J., and a jury, at December Term, 1907, of Beaufoet. Tbe plaintiffs, devisees, children and beirs of Ebenezer Gay-lord, deceased, seek to recover possession of land which formerly belonged to their father, Ebenezer, from their uncle, Sam Gay-lord, who is now in possession, claiming to own the land under an alleged deed to himself from his brother Ebenezer, bearing-date 13 November, 1884.

<p>ActioN tried before Ferguson, J., and a jury, at August Term, 1908, of Burke.</p>

<p>1. Trusts and Trustees — Resulting Trusts — Conversation With Deceased Person — Evidence.</p> <p>In an action to engraft a resulting trust on lands alleged to have been bought by O. at a public sale in behalf of H., both deceased, testimony of witnesses who are parties and interested in the result of the action as to a conversation between O. and II. tending to establish the trust is incompetent. (Revisal, sec. 1631.)</p> <p>2. Procedure — Final Judgment — Interpleader.</p> <p>After the courts have passed upon the merits of a controversy, and an appeal had and determined by the Supreme Court, an interpleader by new parties should not be allowed, as an independent action should have been brought; but while this is an irregularity, the court below may proceed, under this decision, as the case is now constituted.</p>

<p>ActioN tried before Ward, J., and a jury, at December (Special) Term, of Nash.</p> <p>Appeal by Ruffin Lyon.</p> <p>The record discloses this case: On 11 May, 1900, John T. Hedgepeth offered for probate before the Clerk of the Superior Court of Nash County a paper writing purporting to be the last will and testament of Martha Hedgepeth, in words and figures as follows, to wit:</p> <p>“North Carolina — Nash County.</p> <p>I, Martha Hedgepeth, of Nash County and Nashville Township and State of North Carolina, being of sound mind and disposing memory, do make and declare this to be my last will and testament: I give to John T. Hedgepeth, formerly known as John Massengill, son of Martha Massengill, widow of T. Massengill, all my land situate in Nashville Township, Nash County, and bounded as follows: S. L. Arrington, Isaac Wom-bleton and others, known as a part of the John Evans land, containing forty acres, more or less.</p> <p>“Martha (her X mark) Hedoepetii. [Seal.]”</p> <p>“Witness: R. E. Drake,</p> <p>J. 0. Harper.”</p> <p>The in'opounder filed the affidavit of J. 0. Harper, setting forth that he was a subscribing .witness to the will of Martha Hedgepeth; that R. F. Drake, the other subscribing witness, is dead; that said Martha Hedgepeth, in the presence of deponent and R. E. Drake, the other subscribing witness, subscribed her name at the end of said paper writing, of which the one now presented is, in substance, a true copy, which original bears the date of same time, about 1889 or 1890. The deponent further saith that the said Martha Hedgepeth, the testatrix aforesaid, did, at the time of subscribing her name, as aforesaid, declare the said paper writing so subscribed by her, a copy of which is exhibited, to be her last will and testament, and that at her request defendant subscribed his name thereto as a subscribing witness; that she was of sound mind and memory, of full age, etc. The propounder also filed the affidavit of Mrs. Tolie Cooper, setting forth that she was at the home of Martha Hedgepeth, who was sick, when John C. TIarper and R. F. Drake came to write her will; that R. F. Drake wrote the will, and, at the request of Mrs. Hedgepeth, R. F. Drake, after signing and witnessing, handed the will to her husband, L. W: Hedge-peth. Mr. Drake asked Mr. Hedgepeth if he should bring the will with Him to Nashville. Mr. Hedgepeth answered no, he would be in Nashville in a few days and bring the will with him. After all had left, Martha Hedgepeth told deponent that she had made her will and given all she had to John Hedge-peth. She was of sound mind and disposing memory. Deponent filed the affidavit of Jordan Brewer, stating that “A short time before L. ~W. Hedgepeth was married the second time, he told deponent There was a will, but John Hedgepeth will never get that land, for I have put that will to ashes.’ ”</p> <p>Hpon the foregoing affidavits the clerk adjudged that the paper writing and every part thereof is the last will and testament of Martha Hedgepeth, and admitted it to probate in common form.</p> <p>On 19 March, 1906, Mary E. Etheridge and others, heirs at law of Martha Hedgepeth, filed a caveat to said will in the office of the Clerk of the Superior Court of Nash County, whereupon citations were issued to Ruffin Lyon, who purchased the land from John Hedgepeth, and others, heirs at law, to come in and see the proceedings. An issue of devisavit vel non was thereupon made up and transmitted to the Superior Court of Nash County for trial. At the December Term, 1907, the issue was tried before the court and a jury, when the following evidence was introduced by the propounders:</p> <p>J. C. Harper testified: “I know Martha Ann Hedgepeth. I was at her house. .Captain Drake was writing a paper. Captain Hedgepeth sent for me to witness it. Captain Drake went out and wrote a will — wbat purported to be a will — and I read it to ber. Captain-Drake and I witnessed it. It was in 1889. It willed forty acres. Sbe said sbe wanted to give to John Hedgepeth. I read it to ber, and sbe signed it. I beard it was destroyed, and I do not know anything,about it, except it left forty acres to John Hedgepeth.” .</p> <p>Mrs. Tolie Cooper testified: “I know Mrs. Hedgepeth. I was there at the time in question. I was there when it was written. Sbe said it was ber will. Sbe bad given everything sbe bad to John Hedgepeth. It was several years ago. Sbe is dead. I do not know wbat became of it nor the contents of it.”</p> <p>Mrs. Beauregard Griffin testified: “I was the widow of L. W. Hedgepeth. I never saw the will at all. I beard ber say sbe bad made the will to keep ber out — that sbe did not want ber people to have it.”</p> <p>The affidavit of Jordan Brewer was offered and excluded. Exception by the propounder, who assigned said ruling as error.</p> <p>The propounder proposed to show by Mrs. Griffin that sbe bad beard some outside party say that sbe bad destroyed the will and that John Massengill bad never bad the land.</p> <p>The propounder offered in evidence the record of a paper writing purporting to be the last will and testament of Martha Ann Hedgepeth, on file in the' office of the clerk of the Superior Court. It was admitted that said paper writing bad been made up and written after the death of Martha Ann Hedgepeth on ex parte affidavits before the clerk of the Superior Court, and without any petition having been filed in said proceeding before the clerk to set up the contents of the lost or destroyed will, and that no notice bad been issued to the parties interested of the proceedings before the clerk, in which said will was set up, but that said lost or destroyed will bad been proven in common form. The paper writing was, on objection, excluded by the court. The propounder and bis grantee duly excepted.</p> <p>There was no evidence before the court that Martha Ann Hedgepeth, at the time of making the alleged will, bad signed said will in the presence of the two witnesses, requested them to sign it, or that they bad signed it in the presence of each other. There was no evidence, that the will was lost or -destroyed — no evidence about it, one way or the' other.</p> <p>At the -close of the propounder’s evidence his Honor, being of the opinion' that the entire proceeding before the clerk was irregular, and that there was no evidence before the court to show a. last will or destroyed will, and no petition having been filed by the propounder asking to be allowed to set up and prove the contents of the lost will, directed the jury to answer the issues as set out, and dismissed the proceeding, and signed the judgment found in the record. The propounder and his grantee excepted. From the judgment the propounder and Lyon appealed.</p>

<p>ActioN beard upon proceedings for a restraining order by <Tones, J., at May Term, 1907, of Harnett.</p> <p>Plaintiff appealed.</p> <p>Tbis case was beard and decided at tbe September Term, 1907 (146 N. C., 158). A petition to rebear was filed and ordered to be docketed. The facts upon wbicb tbe decision was based are set out in tbe report of tbe case and need not be repeated, except in so far as tbey may be necessary to dispose of tbe petition to rebear.</p>

ActioN tried before Lyon, J., and a jury, November Term, 1908, of Sampson. Action to recover an interest in certain timber on a tract of land of 1,473 acres, conveyed to defendant by Gyrus M. Fair-cloth., commissioner, by deed, dated 11 November, 1899, executed by virtue of a certain ex parte special proceeding, commenced 26 June, 1899, in the Superior Court of Sampson County, the final decree of sale being made by the clerk on 23 October, 1899.

Action tried before W. B. Allen, J., and a jury, at November Term, 1909, of Edgecombe. Certain issues were submitted to tbe jury, and upon tbe responses thereto tbe court rendered judgment against tbe defendant, wbo excepted and appealed. Tbe facts are fully stated in tbe opinion of tbe- Court by Justice Brown.

ActioN tried before Lyon, J., and a jury, at October Term, 1908, of New Hanovee, to recover damages for breach of a lease contract entered into between plaintiffs and the defendant.

ActioN tried before Neal, Jand a jury, at October Term, 1908, of Wake. Tbis was an action brought by E. ~W. Edwards against the city Of Raleigb for injuries sustained'from falling into an excavation, cellar or basement way on East Martin Street, in the city of Raleigh.

<p>Corporations — Insolvency—Mortgage Liens — Assets, Distribution of — Costs.</p> <p>It is error to tax the costs against first-mortgage creditors whp have established the priority of their lien over the rights of general creditors, in statutory proceedings to wind up the affairs of an insolvent corporation and to distribute its assets. (Revisal, secs. 1207-1226.)</p>

ActioN beard by Neal, J., at June Term, 1908, of Lenoir. This is a proceeding instituted in- tbe Superior Court of Lenoir County to wind up tbe affairs' of the defendant, tbe Gay Lumber Company, to which tbe creditors of said corporation are parties. Tbe cause was referred to a referee, who made bis report, to which exceptions were filed by certain creditors whose interests are affected by bis rulings.

<p>1. Deeds and Conveyances — Compromise—Conditions Precedent— Parol Evidence.</p> <p>When, in an action to enforce specific performance of a contract to convey lands, the defense is that subsequently the .parties agreed that the original contract was to be abandoned, conditioned upon the conveyance of a different tract, the party relying upon the compromise must show the fulfillment of the conditions therein in order to avail himself of the defense, and an offer to convey a less number of acres than agreed upon is insufficient.</p> <p>2. Deeds and Conveyances — Surveys—Plats Attached — Written Instruments — Parol Evidence.</p> <p>When a written contract to convey certain lands is uncertain as to the number of acres, but has a plat attached as a part thereof, and referred to therein, giving the boundaries according to a survey made for the purpose, and there is no allegation or proof of fraud or mistake, parol evidence is incompetent to show that a less number of acres than that to be ascertained by the boundaries was intended, as such would have the effect'of varying or contradicting the terms of the written instrument.</p> <p>3. Same — Conditions Precedent — Compromise.</p> <p>When, in defense to an action for specific performance of a contract to convey lands, it is shown that the parties had agreed that upon the conveyance of a certain other tract of uncertain acreage the original contract sued on would be abandoned, and subsequently had a plat of the boundaries made and attached it to the written contract in evidence as a part thereof/ the rights of the parties are to be determined by the acreage included within • the boundaries ascertained by the survey, and parol evidence is incompetent to show that a less number of acres was intended.</p>

<p>AotioN foi; injunction, beard by J. 8. Adams, J., at December (Special) Term, 1908, of Sampson.</p> <p>Tbe summons in tbis action was issued on 3 December, 1908, returnable to tbe February Term, 1909, of tbe Superior Court of Sampson. On 14 December, 1908, plaintiff filed an affidavit. upon*wbicb be made a motion for a restraining order. His Honor, Judge J. 8. Adams, Judge of tbe Fifteenth Judicial District, bolding a special term of tbe Superior Court of Sampson County in tbe Fifth Judicial District, for tbe trial of civil causes, made a restraining order to defendants to "show cause before him on 21 December, 1908, at Clinton, in said county. Upon tbe return day tbe defendants resisted tbe continuance of tbe order, assigning, among other grounds, “That tbe order is irregular, because made returnable before bis Honor, J. 8. Adams, a judge bolding a special term in Sampson County, in a case in which said judge has no jurisdiction to bear and determine, under tbe commission issued to him. No pleadings being filed, nor tbe summons, being yet returnable, there is no cause for trial, under bis Honor’s commission.” His Honor continued tbe order, with permission to defendants to file bond, etc. Defendants excepted and appealed.</p>

<p>ActioN tried before Neal, J., and a jury, at March Term, 1908, of Lenoik.</p> <p>The action was brought by the plaintiff ag'ainst the defendant for the purpose of having a lien declared against the lands of the defendant, situated on Queen Street, in the city of Kinston, N. C., and referred to in the complaint, and for the purpose of having the same condemned to be sold to pay the assessment made against said land by the board of aldermen of the city of Kinston, for the proportionate part of the cost of paving the roadway and sidewalk of Queen Street, in said city, as authorized by chapter 338, Private Laws 1905, and by the ordinances, “A,” “B,” “C” and “D,” enacted by said board of aldermen pursuant to said act, which ordinances are attached to and made a part of the complaint.</p> <p>It was agreed that under and by authority of said private act the said board of aldermen resolved to pave and did pave that portion of Queen Street lying and being between the Atlantic and North Carolina Railroad, where it crosses said Queen Street, and Bright Street, the length of said street thus paved being 2,329.2 lineal feet; that the defendant owns a lot of land on said portion of said Queen Street with a frontage abutting thereon of 110 lineal feet; that the entire cost of paving the roadway of said portion of Queen Street, hereafter, ref erred to as- the taxing district, was $30 (254.31), and that the cost per lineal foot was $12,98, and one-sixth of the cost per lineal foot was $2.16%, and that one-sixth of the entire cost of paving that portion of said Queen Street on which said lot of land abuts was $237.97. It was further agreed that the taxing district contained 8,121.41 square yards of sidewalk paving, and that the said pavement cost $11,015.50, and each square yard of pavement cost $1,429, and two-thirds of the cost of each square yard of pavement is 95% cents; that there are 220.37 square yards of sidewalk pavement on which said lot of land abuts, and two-thirds of the cost of paving that part of the said sidewalk qn which said lot abuts is $209.90. It was further agreed that the said board of‘aider-men did not give the defendant notice of the making of said assessment until after it was made, and the defendant had no opportunity of being heard until the assessment was made, and then notice, both of the assessment and the time when the same would become due, was caused to be served upon the defendant, who refused to pay the same. The defendant moved to nonsuit the plaintiff, for the reason that the assessment was made without giving the defendant an opportunity to be heard, which was the taking of property without due process of law. Motion 'denied. Defendant excepts. Exception 1.</p> <p>The defendant testified as follows: That the said lot was situated on the corner of Queen and Bright streets, one block south of the courthouse, and was at the terminus of the taxing district; that on the opposite western corner Dr. John A. Pollock resided, and that Miss Tiffany West owned a residence on the southwestern corner and resided therein; that the southern corner was occupied by negroes, and that the buildings were unsightly; that the lot was narrow, as a part of the original lot had been cut off and a residence fronting on Bright Street had been erected thereon ; that the lot assessed is situated in the part of 'the city where the property is of less value than any other on that part of the street improved. It was valued at $1,000. The assessment is one-fourth of what the property cost. The property above the courthouse is valued ten times more, according to frontage, than the lot in question. It is unimproved i and does not bear any revenue at all. It is 110 feet long on Queen Street and 35 feet deep, and is the terminus of the improvement.</p> <p>Tbe following issues were submitted by tbe court to tbe jury:</p> <p>1. “Is tbe defendant’s, lot so situated and located that any assessment charged against it should not be measured by tbe frontage rule?</p> <p>2. “What amount, if any, is tbe plaintiff entitled to have charged and assessed as a lien against tbe property of tbe defendant described in tbe complaint ?” Answer: “Four hundred and forty-seven dollars and forty-six cents.”</p> <p>Tbe court held that no evidence bad been submitted that was sufficient to change tbe frontage rule in this case, and charged tbe jury that if they believed all tbe evidence they should answer tbe second issue “Four hundred and forty-seven dollars and forty-six cents,” and this issue was so answered. Tbe court rendered tbe judgment on tbe verdict, declaring tbe amount assessed a lien on tbe lot in question, and directing a sale pursuant to tbe statute, and defendant excepted and appealed.</p> <p>Defendant not represented.</p>

ActioN tried before Peebles, J., and a jury, at May Term, 1908, of Buncombe. Plaintiff, Mts. Pearson, being the owner of the property in controversy, known as the Fanners Warehouse, in Asheville, N. C., together with her husband, Richmond Pearson, on 19 December, 1901, leased it to defendant Millard and H. W. Las-ater, his copartner, for the term of-five years, at a rental of $60 a month, the term to begin 3 July, 1902.

<p>1. Railroads — Cities and Towns — Use of Streets — Assent of Town.</p> <p>A railroad company has the right.to use the streets of a town for legitimate railroad purposes, with the assent of a town, having statutory powers, given by resolution of its hoard of aldermen. (Revisal, sec. 2567, subsec. 5.)</p> <p>2. Railroads — Corporation Commission — Union Depots — Inherent Powers — Cities and Towns — Use of Streets.</p> <p>The statute authorizing the Corporation Commission to order union stations to be built and maintained carries with it the power to do what is reasonably necessary to execute such order, including the use of the streets of a town for legitimate, railroad purposes, the laying of tracks, etc., necessary to that end.</p> <p>3. Railroads — Cities and Towns — Use of Streets — Ministerial Duties — Power of Courts — Injunction.</p> <p>The action of the board of aldermen in authorizing a railroad company to use a certain street for legitimate railroad purposes, the laying and use of tracks, etc., when the statutory power is given, is not reviewable by the courts at the instance of an owner of land on the street, claiming that some other street should have been so used. %</p> <p>4. Railroads — Cities and Towns — Use of Street — Tracks—Additional Servitude — Remedy—Damages—Injunction.</p> <p>The remedy of an owner of land on a street which has been used for railroad purposes, the maintenance of track, etc., against a railroad company using additional tracks necessary to maintain a union depot,, is by an action for damages for a superimposed burden upon the street, and not by injunction.</p> <p>5. Railroads — Cities and Towns — Use of Streets — Tracks—Assent of City — Corporation Commission — Public Good — Injunction.</p> <p>The progress of work, apparently for the public good, such as the laying of a track on a city street by railroad companies to maintain a union station authorized by the city and ordered by the Corporation Commission, will not be interfered with by injunction.</p> <p>6. Same — Power of Court — Supreme Court.</p> <p>It appearing in this case that certain railroads had been improperly restrained by a private owner of lands from building tracks along a city -street, with the approval of the city, and done in order to build and maintain a union depot ordered by the Corporation Commission about two years previously, judgment dissolving the restraining order was entered in the Supreme Court. (Revisal, sec. 1542.)</p>

<p>1. Telegraphs — Delivery of Message — Negligence—Evidence.</p> <p>Evidence that the husband of feme plaintiff told the messenger who, about four hours afterwards, delivered the message, that he was expecting a message, and to bring it out to his wife, is competent, upon the question of negligent delay in delivery, when the addressee lived but a short distance from defendant’s'office and delivery was delayed several hours.</p> <p>2. Telegraphs — Death Message — Evidence—Mental Anguish.</p> <p>When there is evidence tending to show negligence on the part of defendant telegraph company in delivering a message announcing the death of a sister, evidence of mental anguish suffered by plaintiff is competent.</p> <p>3. Telegraphs — Delivery of Message — Negligence—Damages—Avoidance — Evidence.</p> <p>When negligent delay is shown in the delivery of a message, and the uncontradicted evidence in defense is that by driving a distance through the country trains could have been caught which would have enabled plaintiff to have reached destination before the funeral, the court cannot say, as a matter of law, that it was plaintiff’s duty to thus avoid the injury, but the question is one for the jury, under all the facts and circumstances of the case.</p>

Action tried before 0. E. Allen, J., and a jury, at Fall Term, 1908, of Carteret. This action was brought to recover damages for failing to deliver a telegram. It appears that on 27 July, 1907, at 3 o’clock P. M.,'Elvin Willis, a brother of the plaintiff, delivered to the defendant, at Beaufort, N. 0., for transmission to the plaintiff,. C. S. Willis, who lived in Eichmond, Ya., the following message: “C. S. Willis,. 923 East Marshall Street, Eich-mond, Ya.

<p>1. Mortgagor and Mortgagee — Trusts and Trustees — Tax Deeds.</p> <p>A mortgagee holds tbe legal 'title to tbe mortgaged' lands in trust for tbe mortgagor and himself, and by subsequently acquiring a tax deed to tbe mortgaged premises be cannot deprive the mortgagor of his equity of redemption.</p> <p>2. Same — Additional Mortgage Lién.</p> <p>Money subsequently paid by a mortgagee to acquire a tax title on tbe mortgaged lands becomes a lien on tbe land. (Revisal, sec. 2858.)</p> <p>3. Mortgagor and Mortgagee — Trusts and Trustees — Legal Title— Possession — Limitation of Actions.</p> <p>The statute of limitations does not run against a mortgagor in possession of lands by reason of- the legal title being in the mortgagee, not in possession. (Kevisal, sec. 385, subsec. 4.)</p> <p>4. Mortgagor and Mortgagee — Mortgage Deed — One Action — Procedure.</p> <p>In an action brought for the cancellation of a mortgage and for general relief it is the better procedure to ascertain, when appropriate,- the amount due upon the mortgage debt, so that redemption or foreclosure can be had and all controversy between the parties settled in the same action. The judgment in this action will be considered interlocutory, or final, according as the parties may determine to proceed.</p>

<p>Penalty Statutes — “Party Aggrieved” — Interest in Goods — Agent or Attorney.</p> <p>The penalty prescribed' by .Revisal, sec. 2631, is for the person who is interested in having the goods shipped, and whose legal right in respect thereto is denied; and a person may not maintain an action for the penalty, as the party aggrieved, who has no right or interest in the goods tendered by him for shipment, except as agent or attorney for an attaching creditor and surety on his attachment bond, after the debt has been paid and the goods released.</p>

ActioN tried before Ward, J., and a jury, at Inly (Special') Term, 1908, of TtkRell.

ActioN tried before Neal, and a jury, at October Term, 1908, of Wake. Tbe plaintiff sues to recover damages alleged to have resulted from injuries sustained by tbe negligence of defendant.

<p>1. Deeds and Conveyances — Coverture—Judgments—Liens.</p> <p>When title to a tract of land was in the husband, and one had a judgment for $200 against the husband for the purchase money, duly docketed, and, the wife having instituted an action against the husband and the holder of the judgment to establish for herself and children an interest in the land, by reason of the fact that she had aided in the purchase of the same, a decree by consent was entered declaring the judgment to be in full force and effect to the amount of $100, and adjudging that the husband convey to the wife a certain interest in the property, this conveyance was subject to the judgment lien for the' purchase money to the extent of $100, and on sale of the land to enforce collection of the judgment the purchaser acquired the title.</p> <p>2. Deeds and Conveyances — Judgment—Jurisdiction—Coverture.</p> <p>A judgment of a court having jurisdiction of the cause and the parties against a married woman on her contract, made during coverture, will'be set aside, on direct application, when it appears by' the pleadings that she was under coverture at the time the contract was made, though the defense of coverture was not formally pleaded, but it is binding upon her while it stands as the formal and final deliverance of the court.</p> <p>3. Deeds and Conveyances — Lands—Title—Purchase Price — Covert-ure — Judgment in personam.</p> <p>Under the facts and circumstances of this case, the consent judgment recognizing the validity of a former judgment rendered against the husband for balance due upon purchase price for land to which the title was in him, and adjudging an interest in the land in the wife on account of payment made by her with her own funds, and decreeing a balance due thereon a lien upon the land, whether the second judgment was in personam against her, Qucere.</p> <p>4. Judgments, Entire — Rights Under — Estoppel—Coverture.</p> <p>A feme covert, claiming an interest in lands under a decree of court, cannot assert her claim thereto under one clause of an entire judgment and repudiate a lien upon it declared and established by another clause thereof.</p> <p>5. Pleadings — Action for Possession of Lands — Married Women — • Equities.</p> <p>When the complaint in an action to recover lands contains the ordinary allegations, and the answer a general denial, the pleadings are not sufficient to sustain an equity set up iu favor of a feme defendant, arising by reason of coverture, in transactions concerning lands.</p>

<p>AotioN tried before Lyon, Jand a jury, at April Term, 1908, of Columbus.</p> <p>Plaintiff sues for tbe recovery of money paid defendant on account of tbe purchase money of a tract of land under a parol contract to purchase, and for compensation for improvements put upon tbe land while in possession under the contract. He sets out his contract in his complaint, alleges the payment of the money and that he put the improvements on the land, and the z’efusal of defendant to make a deed. Defendant does not specifically deny these allegations, but sets up new matter, by way of avoidance, etc. . Plaintiff testified that defendant proposed to sell him the land and he agreed to buy it for $750. He paid defendant $200 on account of the purchase money and went into possession. The contract was not reduced to writing. Defendant paid an additional $200, stayed on the land two years, making valuable improvements, buildings, etc., and “had to leave.” Defendant returned $80 of the amount paid. When plaintiff, demanded .of defendant a deed for the land he told him to call' on Mr. D. L. Gore, who would make the deed; that he went to Mr. Gore to get a deed and he refused to give him one. “I told defendant tbat I wanted bim to give my money back, and be refused to do so. Mr. Gore said be would not make me a deed unless I would take all of tbe land. I offered to pay Mr. Gore tbe balance of tbe money on tbe piece of tbe land, as defendant told me to do. * * * Defendant said be bad a bond for title. I could not get a deed from Gore nor from defendant for tbe land, altbougb I was ready to pay tbe money and offered to do so.” Defendant objected to tbis testimony and duly excepted to its admission. Plaintiff testified, without objection, tbat be put improvements on tbe land, giving estimate of value. Defendant offered no evidence, but moved for judgment of non-suit, wbicb was denied, and be excepted. Defendant tendered issues, wbicb bis Honor refused to submit. Exception.</p> <p>Tbe following issues were submitted to tbe jury:</p> <p>1. “Did defendant contract witb plaintiff to sell plaintiff tbe tract of land described in tbe complaint?</p> <p>2. “Is tbe defendant indebted to plaintiff on account of money paid to bim on purchase price of said land, and if so, wbat amount ?</p> <p>3. “Is tbe defendant indebted to plaintiff on account of improvements of said land, and if so, wbat amount?”</p> <p>Defendant excepted.</p> <p>Tbe only portion of bis Honor’s charge to wbicb exception was taken, and wbicb is set out, is as follows: “If they found from tbe evidence and by tbe greater weight thereof, tbe burden being on the pláintiff, tbat tbe plaintiff complied witb bis part of tbe contract, or offered to comply witb said contract, and tbat be tendered D. L. Gore tbe amount for said land under tbe contract, and tbat Gore refused to receive same and make title to tbe plaintiff unless plaintiff would take it and pay for more land than be bad contracted for, tbe court charges you tbat it was not necessary for tbe plaintiff to tender tbe actual cash to tbe said Gore.”</p> <p>There was a verdict for plaintiff on all of tbe issues. Judgment, and appeal.</p> <p>Plaintiff not represented in this Court.</p>

<p>1. Pleadings — Evidence—Wills—Testator—Identification.</p> <p>The propounders of a will are not required to prove the identity of the one who signed the will as the testatrix, when the allegations are that the signature of the testatrix was obtained by duress, undue influence, etc., and that she did not have sufficient mental capacity, and there is no allegation that she did not sign the will.</p> <p>2. Wills — Evidence—Testator—Identification.</p> <p>Testimony of an attorney and witness to a will that they were sent for and introduced to a person, whom they had not met before, and who answered to the name of the testatrix, and that the will was drafted and executed by such person as the testatrix named in the will, is prima facie evidence that the person signed was the executrix named, and 'sufficient to take the case" to the jury.</p>

, at November Term, 1908, of DupliN. On 1 January, 1907, the plaintiff leased his farm, in writing, to the defendant (a colored man) for the term of ten years, at a yearly rental of five bales of good middling cotton, of 500 pounds each, with a further provision that if said rent was promptly paid, together with the taxes on the land, then the defendant could become purchaser of the land upon payment of fifty bales more, with provision for forfeiture if any installment of…

, 9 September, 1908. This is a proceeding, brought under section 1199 of 'the Ee-visal, for the dissolution and settlement of the Eugenia Manufacturing Company, a corporation heretofore doing business in that portion of Moore County, N. C., now within the county of Lee. The creditors of the corporation are named as defendants in tbe proceeding. Tbe action was originally instituted in tbe Superior Court of Moore County and afterwards removed to tbe county of Lee.

Cause beard on motion for judgment, before Lyon, 3at January Term, 1909, of Wahe. Tbe case was originally tried before bis Honor, B. F. Long, and a jury, at October Term, 1907, of tbe Superior Court of said county.

<p>ActioN tried before Long, J., and a jury, at September Term, 1908, oTMooke.</p> <p>Plaintiff appealed.</p>

ActioN tried before Lyon, J., and a jury, at August Term, 1908, of Duplin.

<p>1. Insurance — Back Dues — Partial Payment — Terms of Reinstatement — Waiver.</p> <p>Evidence that an insurance company received a partial payment for insurance of back dues on a lapsed policy is no evidence in itself of waiver, when, under the terms of the policy, the payment of “all back dues” was necessary to reinstate the policy.</p> <p>2. Same — Waiver.</p> <p>When, under the terms of a contract of insurance, a lapsed policy would only be reinstated sixty days from the payment of all back dues, and then on condition that the insured should be in good health when the dues were paid and for five weeks thereafter, the fact that the company received a part payment of back dues raised no question of waiver for the jury, when it was shown that the insured died two-days after making the partial payment.</p>

ActioN tried before J ones, J., and a jury, at November Term, 1908, of PERSON. Plaintiff sues for personal injuries, alleged to bave been sustained by defendant’s negligence. Tbe plaintiff testified tbat at •tbe time be sustained tbe injury be was employed by defendant on one of its trains, engaged in cleaning out ditches witb a' ditching machine, to which a dipper was attached. Pie said it was bis duty to book tbe chain on tbe dipping machine. Tbe machine sat on a fiat car.

ActioN tried before Guión, J., and a jury, at November Term, 1908, of Pasquotank.

, at January Term, 1909, of Durham. Action to recover the sum of $860, being the principal, together with interest thereon from 1 January, 1893, of a judgment recovered by the defendant at March Term, 1893, of the Superior Court o'f Durham County, against J. E. Newsome, Robert Holloman and W. E. Jenkins.

ActioN tried before J ones, J., and a jury, at October Term, 1908, of DURHAM. This was a civil action, instituted before a justice of the peace. The -plaintiff did not file any written complaint.

, at November Term, 1908, of Person. This was an inquisition of lunacy. Tbe jury returned the following verdict: 1. “Is Melissa Denny incompetent, from want of understanding, to manage her own affairs ?” Answer: “Yes.” 2. “Is Melissa Denny totally deprived of her reason?” An.swer: “No.” Upon this return the clerk of the Superior Court refused to appoint a guardian and dismissed the petition. Petitioner appealed to .the Superior Court. At November. Term, 1908, his.

<p>Appeal from Neal, J., at August Term, 1908, of WayNE.</p> <p>The plaintiff alleged two causes of action, i. e., false warrant in thp sale of certain letters patent for an improved fumigating apparatus, wMcb, in connection with, certain sanitary powders, “would preserve all fruits and vegetables at a nominal cost,” and also for deceit and false representation in tbe sale thereof, the said powders being alleged by plaintiff to be hurtful/ their use contrary to law, and valueless. The answer was a full denial. Yerdict for defendant, and appeal by plaintiff.</p>

<p>Power of Court — Pleadings—Amendments—Discretionary Power— Findings — Record.</p> <p>When it appears that a cause was entered as continued by consent for the term by the judge at a former term, in the. absence of counsel in the case, by mistake of the judge, the court thereafter, at the same term, had the power ahd discretion to allow defendant to amend his answer and set up a further defense arising under the contract sued on. The discretionary power of the court to allow amendments to pleadings in term, when matters are m fieri, discussed by Walkeh, J.</p>

<p>Telegraphs — Negligence — Message — Reasonable Stipulations — Demand in Sixty Days.</p> <p>A stipulation written on the back of a telegraph message, requiring, in effect, that a claim for damages should be presented within sixty days or recovery thereon would be barred, will be upheld as a reasonable regulation when it appears that the party claiming damages knew of the company’s default more than sixty days before the action was brought, and made no claim therefor in that time.</p>

<p>1. Railroads — Lessor and Lessee — Pleadings—Allegations of Lease— Demurrer. a</p> <p>When it is substantially alleged in the complaint, in a suit for damages against a railroad company, that x>laintiff’s intestate was killed while in the course of his employment by defendant’s lessee company operating the railroad of the defendant as its lessee, the complaint is not demurrable on the ground that it did not sufficiently appear that the lease was in force at the time of the injury.</p> <p>2. Railroads — Lessor and Lessee — Negligent Killing — Lessor—Damages.</p> <p>Defendant lessor railroad company is liable for the negligent killing of plaintiff’s intestate by its lessee railroad company. (Logan v. Railroad, 116 N. 0., 940, and Brown v. Railroad, 131 N. 0., 455, cited and approved.)</p> <p>3. Pleadings — Derpurrer, Frivolous — Appeal and Error — Procedure.</p> <p>The. Supreme Court, holding a demurrer to a complaint frivolous, will not direct judgment by default and inquiry to be entered in the trial court, when no motion for such judgment had been made in the lower court and no exception to the judge’s order allowing an answer had been taken and appealed from. (Revisal, secs. 656, 472.)</p> <p>4. Pleadings — Demurrer, Frivolous — Discretionary Powers — Answer.</p> <p>It is in the discretion of the trial judge to permit defendant to answer after overruling a demurrer to the complaint, though the demurrer were frivolous.</p>

<p>ActioN tried before Long, J., and a jury, at December Term, 1908, of Randolph.</p> <p>Defendants appealed.</p>

<p>ActioN tried before Webb, J., and a jury, at Fall Term, 1908, of Stanly.</p> <p>Plaintiff appealed.</p>

<p>1. Deeds and Conveyances — Description—Direction, Evident Mistake of — Other Errors — Presumption.</p> <p>When it is evident from an otherwise correct description in. a deed that “east down a road” should have read “west,” no presumption is raised that there are other errors or omissions in the description of the land conveyed.</p> <p>2. Deeds and Conveyances — Mistake of Draughtsman — Evidence— Subsequent Deeds — Descriptions Not Vague.</p> <p>A part of the description to a conveyance of land road, “down the road to the run of Mill Branch.” Plaintiff contends that by mistake of the draughtsman the line should have run straight from a first bend in the road to a certain point on the branch below the point where the road came: .Hold, (1) a second deed made by the grantor subsequent to the deed recorded, without acceptance by the grantee, is no evidence of plaintiff’s contention; (2) by reason of description of the line indicated, the description of the locus m quo is not void for vagueness or, uncertainty.</p> <p>3. Notice, Service of — Superior Court — Constable.</p> <p>The service of a notice in an action in the Superior Court by a town constable is insufficient.</p>

<p>1. Wills — Devises—Estates for Life — “During Widowhood.”</p> <p>A devise by one of lands to his wife “during her widowhood” is an estate for life, subject to be divested if she should remarry, and subjects her to an action for damages for waste and an injunction against its further commission.</p> <p>2. Same — Residuary Legatee.</p> <p>A direction in a will that certain real and personal property be sold to pay the testator’s debts and certain legacies which were provided for, and if any surplus remained it should go to the widow, does not constitute her the general residuary legatee, so as to vest the remainder of the estate in her in fee, when she takes by devise whatever may remain during the term of her widowhood.</p>

ActioN beard before J ones, J., and a jury, at November Term, 1908, of GrRANVILLE. There have been temporary restraining- orders issued and served in the cause, and pending the action certain cross-ties have been seized and are now held under process of claim and delivery, issued in the same at plaintiff’s instance.

<p>1. Inheritance — Slaves—Legitimatizing Childre’n — Heirs at Law.</p> <p>The efficacy of the act of 1879 (Revisal, sec. 1556), legitimatizing the children of colored parents, under certain conditions, living together as husband and wife, and thus giying them the rights of inheritance, depends upon two essential facts — a cohabitation subsisting at the birth of the child and the paternity of the person from whom the property claimed is derived.</p> <p>2. Same — Cohabitation.</p> <p>In order to come within the provision of the act of 1879 (Re-visal, sec. 1556),. legitimatizing the children of colored .parents living together as man and wife, etc., and thus giving them the rights of inheritance, an exclusive cohabitation must> be shown, as signified by the expression, “living together as man and wife,” and not casual sexual intercourse.</p> <p>3. Marriage — Slaves—Legitimatizing Children — Evidence—Acts and Declarations.</p> <p>The quasi marriage relation necessary to legitimatize the children of colored parents, under the provisions of the act of 1879 (Revisal, sec. 1556), may be shown in evidence by reputation, cohabitation, declarations and conduct, under the same general rule of evidence applicable to establish the fact of marriage. (Nelson v. Hunter, 140 N. 0., 599, cited and approved.)</p>

ActioN tried before W. R. Allen, J., upon an agreed state of facts, at January Term, 1909, of New Hanovee. Both, sides appealed. This is a controversy submitted without action for tbe purpose of quieting title to real estate pursuant to section 1589 of tbe Revisal. Tbe agreed facts are: On 20 May, 1869, H. 0.

<p>1. Railroads — Master and Servant — Torts—Liability of Master— Scope of Employment.</p> <p>For the torts of the servant the liability of a railroad company is limited to those committed within the scope of the employment in furtherance of its business.</p> <p>2. Same — Judgment Upon'the Verdict.</p> <p>In an action for damages from an injury-to plaintiff, caused by being shot by the servant or employee of defendant railroad company, the jury found, upon issues submitted without objection, that defendant’s servant shot and injured the plaintiff in a reckless and wanton manner; that he was not acting within the scope of his employment at the time, and that plaintiff was entitled to recover in a certain sum: Held, defendant was entitled to have his motion for judgment upon the verdict allowed.</p>

<p>ActioN tried before Webb, J., and a jury, at November Term, 1908, of Chatham.</p> <p>Action for personal'injury, alleged to have been sustained by reason of defendant’s negligence. The evidence tended to show that-plaintiff was, by direction of defendant’s superintendent or road master, engaged, with other employees, in unloading iron rails from a flat car; that the rails were laid upon the car in the usual way, and that upon either side of the car “fish bars,” or “angle plates,” about eighteen inches long,*were used as standards. They were put in the “stirrups,” or “cuffs,” on the side of the ear, for the purpose of holding the standards. Some of the rails had been taken up from the cross-ties and were being used to build a siding. The “fish bars” were suitable for standards and “constantly used for that purpose.”- The rails were loaded in the usual way. There were several cars of rails. In unloading the cars, other than the one on which plaintiff was injured, the standards, or “fish bars,” were removed and the rails thrown upon the ground. When the hands undertook to unload tbe car upon wbicb tbe plaintiff was injured, it was found tbat tbe rails pressed against tbe standards, so tbat they could not be removed. Tbe plaintiff and other bands were directed to unload by raising one end of tbe rail, lifting it over tbe standard and letting it fall to tbe ground, and then lifting tbe other end over in tbe same manner; or, as plaintiff says, tbe order was, “Pick up tbe end of tbe iron and throw it off.-” He says tbat, as he did so, “it bounded some way or other and dashed back to tbe car.” In reply to tbe question, “When you picked up tbe end of tbe rail to toss it over, it caught at tbe other end and flew back — is tbat tbe way you described it?” “It bounded and flew back. * * * I was not thinking about it; I was just trying to carry out orders. I thought it would go to the ground.”</p> <p>Mr. Cain, tbe section master, a witness for plaintiff, says that. Captain Tussey, tbe road master, ordered tbe bands to throw the rails off. “He said be could not get tbe standards out until after be got tbe rails from around tbe standards; tbey were piled against tbe standards.” This witness said tbe car was loaded in tbe usual way; tbat tbe fish bars made good standards — were constantly used for tbat purpose; that be bad unloaded rails in tbat'way before, and bad often seen it done; they bad thrown out two or three rails before tbe plaintiff, was injured. Tbe .rail struck plaintiff’s leg as it “bounded back,” and inflicted tbe injury for wbicb be sues.</p> <p>Tbe foregoing is tbe substance of tbe evidence on behalf of tbe plaintiff in regard to tbe way in which be received the injury. He alleges tbat defendant was negligent in several respects. His Hofltar instructed tbe jury tbat there was no evidence tbat tbe car was not properly loaded or tbat there was not a sufficient number of bands for tbat purpose. Tbe defendant requested bis Honor to instruct tbe jury, “From all of tbe evidence in this case, tbe cause of tbe injury was an accident, and tbat tbey will answer tbe first issue No.’ ” This was refused, and defendant excepted. His Honor instructed tbe jury tbat if tbey found that, as tbe plaintiff picked up tbe rail to toss it off tbe car, tbe other end of tbe rail was 'caught or bung, and if tbey should further find tbat Cain or Tussey knew tbat tbe rail was caught or hung, or that they could have known by observation or ordinary care that it was caught, and failed to do so, and, after knowing it was caught at the end, it was tossed over and rebounded, and, by reason of the fa'ct that it was caught before it was picked up or after it was picked up, it hurt plaintiff,. they would answer the first issue. “Yes.” Defendant excepted. There was a verdict for plaintiff. Judgment and appeal.</p>

<p>1. Evidence — Statements—Silence—Admissions.</p> <p>Statements'made in the presence of one (who did not reply), to become his implied admissions, must have been made on an occasion when a reply would properly be expected; and’ testimony as to statements made in a plea for mercy to the court by an attorney, in the hearing of his client and not denied by him, as to his mental incapacity, is inadmissible upon an issue of clevisavit vel non attacking the probate of his will on that ground.</p> <p>2. Evidence — Wills—Devisavit Vel Non — Records—Books of Settlements — Originals—Copies.’</p> <p>Upon an issue of devisavit vel non upon the question of the mental capacity of the testator to make a will, the book of settlements, kept in the clerk’s office in accordance with the provisions « of section 21, chapter 156, Laws 1883, recording copies of original papers, is not competent evidence of the contents of such papers. The original papers or the records of the executive committee of the State Hospital are competent. Quwre.</p> <p>3. Evidence — Wills—Devisavit Vel Non — Mental Capacity — Book of Settlements — Harmless Error.</p> <p>Lpon an issue of devisavii vel non the testimony of both sides showed that the testator had been confined in and discharged from a State’s hospital about twelve years previous to his death; and the conflicting evidence upon his mental capacity to make a will was directed almost exclusively to liis mental condition during' the last few years of his life: Held, (1) in the absence of any evidence to the contrary,, the law will presume the discharge was based upon the restoration of the testator’s mind; '(2) "that the erroneous admission in evidence of the book of settlements in the office of the Superior Court clerk was harmless error.</p> <p>4. Evidence — Wills—Mental Capacity — Burden of Proof — Instructions.</p> <p>After placing the burden of proof on. the caveator to establish the insanity of the testator at the time of making the will, by the preponderance of the evidence, it is correct for the judge to charge, in effect, that if the jury find from the evidence that the testator signed the writing offered in evidence as and for his last will; that at the time he had mental capacity to know and understand what he was doing, to know his property and its disposition, his relationship to his property and the persons benefited, the nature and effect of his act, he had mental capacity sufficient to make a will.</p>

Action to recover damages for personal injury, caused by alleged negligence of defendant company, tried before Jones, J., and a jury, at October Term, 1908, of Dtoham. Plaintiff objected to a juror because be was an employee of defendant company; objection overruled; plaintiff excepted. The juror was then challenged peremptorily; the challenge was allowed.

ActioN tried .before Long, J., and a jury, at November Term, 1908, of Rowan. The action was instituted to set aside a deed made by Jacob Fraley, now deceased, to Jane E. Stokes, daughter of said Jacob, and one of the defendants, and G. ~W. Fraley, his son, another one of defendants, on the ground of- mental 'incapacity and of fraud and undue influence. Issues were submitted: 1. As to the mental capacity of Jacob Eraley. 2. As to fraud and undue influence.

ActioN tried before Long, J., and a jury, at January Term, 1909, of DURHAM. Tbe propounders offered a paper writing .purporting to be tbe last will and testament of William Bowling, deceased, for probate before tbe Clerk of tbe Superior Court of Durham County.

Under authority conferred by chapter 407, Laws 1907, the county commissioners of Surry, on the first Monday in March,. 1908, appointed three road commissioners for said county. By section 1 of said act the road commissioners' of said county were authorized, upon petition of a prescribed number of citizens and landowners, to lay out or change any public road of said county.

<p>Motion for writ of recordari, lieard by Gouncill, J., at September Term, 1909, of Fobsyth.</p> <p>Motion denied, and defendant appealed.</p>

ActioN tried before Neal, J., upon, demurrer to complaint, at November Term, 1908, of WaKE. . . Demurrer sustained. Plaintiff appealed. Tbe pertinent facts are stated in tbe opinion.

<p>ACTION to recover damages for the alleged negligent, killing of L. W. Bordeaux, tried before Biggs, J., and a jury,- at October Term, 1908, of Wayne.</p> <p>These issues were submitted to the jury:</p> <p>1. “Was the plaintiff’s intestate killed by the negligence of the defendant company?” Answer: “Yes.”</p> <p>2. “Did the plaintiff’s intestate, by his own negligence, contribute to his death ?” Answer: “No.”</p> <p>3. “What damages, if any, is plaintiff entitled to recover?” Answer: “Six thousand dollars.”</p> <p>Defendant appealed.</p> <p>The facts are stated in the opinion of the Court.</p>

■ AotioN for personal injury, tried before Ward, J., and a jury, at May Term, 1908, of Forsyth. Issues were submitted and answered by tbe jury, wbo found tbe first issue, relating to tbe alleged negligence of tbe defendants, in tbe negative. From tbe judgment rendered tbe plaintiff appealed.

<p>Appeal from justice of the peace, tried- before Justice, J., and a jury,-at October Term, 1908, of Cabarrus.</p> <p>This action was based on ‘a life-insurance policy, issued by the defendant company on the life of Pearl Alexander in favor of Caroline Alexander, the appellee, as beneficiary. The defense to the action was based on certain provisions of the policy, declaring it void if the insured, before its date, had been attended by a physician for any serious disease or complaint or had any disease of the kidneys.</p> <p>The following findings were made by the jury:</p> <p>1. “Did Pearl Alexander, the insured, in her application for insurance, falsely represent that she had not been attended by a physician for any complaint within two years prior to making such application?” Answer: “No.”</p> <p>2. “Was Pearl Alexander attended by -a'physician for any serious disease or complaint within two years before the policy was issued for the plaintiff?” Answer: “Yes.”'</p> <p>3. “Did Pearl Alexander falsely represent that she had not had kidney disease?” Answer: “No.”</p> <p>4. “Had Pearl Alexander kidney trouble prior to making application for the policy sued on?” Answer: “Yes.”</p> <p>The defendant moved for judgment upon the issues, and assigns the refusal to grant same as error. The court denied the motion and gave judgment for plaintiff. Defendant excepted and appealed.</p>

<p>ActioN tried.before Councill, J., and a jury,, at January Term, 1909, of Cabarrus.</p> <p>Defendant appealed.</p>

ActioN to recover damages for alleged libel, tried before Ward, J.-, and a jury, at June Term, 1908, of Rockingham.

<p>Aotion tried before J ones, J., and a jury^ at February Term, 1909, of Davidson.</p> <p>Plaintiff company sues upon the following instrument:</p> <p>“$1,000. December 7, 1907.</p> <p>“Sixty days after date, we, or either of us, promise to pay to Emery E. Eaper, attorney, or order, the sum of one thousand dollars, for value received, which money, when received by him, to be applied to tbe iDayment of all claims be bas now in bis bands for collection against tbe said J. L. Peacock and to such-others as be may receive for collection, until tbe full amount is applied. Tbis note executed for tbe purpose of securing and guaranteeing tbe payment of tbe said claims to tbe extent of one thousand dollars.</p> <p>“Said claims now in band are as follows:.</p> <p>“J. L. Peacock. [Seal.]</p> <p>“R. W. Fullee. [Seal.]”</p> <p>A list of tbe claims is attached, aggregating $896.</p> <p>Defendant R. W. Fuller admitted the execution of tbe obligation, and by way of defense alleged that be has never been indebted to tbe plaintiffs in any sum whatever, exceqit as surety on an obligation in tbe amount of $1,000, guaranteeing tbe payment of $1,000 to plaintiffs and other creditors of J. L. Peacock; that be is informed and believes that since tbe execution of said obligation as surety, aforesaid, tbe said Emery E. Raper bas received other claims for collection than those mentioned and set out in tbe. complaint, and that be bas received moneys from J. L. Peacock and bis agents, to be applied to said accounts and tbe accounts mentioned in tbe complaint, to more than a sufficient amount to relieve tbis defendant from any obligation or responsibility as surety aforesaid. It was in evidence that other claims against Peacock were placed in tbe bands of Mr. Raper for collection, amounting to $1,016.87, aggregating about $1,800. Peacock paid $50 on tbe note, which was duly credited.</p> <p>Tbe following is tbe only evidence introduced: “About 10 February, 1908, J. L. Peacock sold to Z. I. Walser and Emery E. Raper bis equity of redemption in bis borne, there being mortgages on same, and on account of tbe price of tbis lot tbe sum of $647.50 was paid*on tbe claims in tbe bands of Emery E. Raper, which amount was, by express -agreement of J. L. Peacock, applied to all tbe creditors, pro rata, on their claims of $1,816.33, tbe creditors being those set out in tbe complaint. After 10 February, 1908, other claims were'placed with Emery E. Raper, but nothing bas been collected on them and no claim is made for them.”</p> <p>Tbe following issue was submitted to tbe jury: “What amount bas been paid on said note of $1,000 by J. L. Peacock and R. W. Puller, or others, since tbe execution of tbe note, I December, 1907?” Tbe court instructed tbe jury tbat if tbey believed tbe evidence to answer tbe issue “$730.50”; tbat there should not only be included in tbe amount paid tbe $50 admitted, but also tbe further amount paid by Peacock, tbe $647.50. Plaintiff excepted to tbe charge on the issue as to tbe item of $647.50. There was an item of $33 credited on tbe note, not necessary to be noted. Judgment was rendered for $270. Plaintiff appealed.</p>

<p>AotioN beard on ease agreed by Long, J., at October Term, 1908, of Anson.</p> <p>Plaintiff appealed.</p>

.ActioN upon, a note, tried before Justice, J., and a jury, at January Term, 1909, of Wilkes. The defense was that the note, appearing upon its face to have been made by two joint principals, H. C. Eller, Jr., and H. 0. Eller, Sr., was procured by the false and fraudulent, representar tions of the plaintiff.

<p>ActioN tried before Justice J., and a jury, at February Term, 1909, Of ALEXANDER.</p> <p>Defendant appealed.</p>

ActioN tried before Ward, J., and a jury, at August Term,. 1908, of Caldwell.

AotíoN tried before Long, J., and a jury, at October Term, 1908, of Anson, to recover damages for the negligent killing of Oarl Baker, a boy within one month of fifteen years of age. The usual issues of negligence, contributory negligence, and damages were submitted and found for plaintiff. From the judgment rendered defendant appealed.

<p>1. Municipal Corporations — Cities and Towns — Bond Issues — Necessary Buildings — Legislative Powers — Power of Court.</p> <p>A municipal building in cities the size of Raleigh is a recognized municipal necessity, and bonds issued for that purpose, under proper authority, given by the Legislature, in consequence of a resolution of the board of aldermen declaring such building a necessity and a necessary municipal expense, are valid without the approval of a majority of the qualified voters. (Article VII, section 7, Constitution.)</p> <p>2. Municipal Corporations — Cities and Towns — Necessary Buildings — Discretion—Power of Court.</p> <p>The courts may determine what are necessary public buildings and what class of expenditures fall within the definition of the necessary expenses of a municipal corporation,'but the authority for determining the kind of building or its reasonable cost is vested in the Legislature, and to a municipal corporation when, it is delegated to it, and not in the courts.</p> <p>3. Municipal Corporations — Cities and Towns — Necessary Buildings — Special Commission — Discretion.</p> <p>An act conferring the authority upon a commission oi; taxpayers to employ a competent architect to prepare and furnish plans for the erection, etc., of a necessary municipal building for a city, to be approved by the commission, without defining what is a proper municipal building or limiting the power of the commission to determine the quality of the structure, 'leaves such matters to the sound judgment and discretion of the commission.</p> <p>4. Municipal Corporations — Cities and Towns — Necessary Buildings — City Hall — Discretion—Injunction,</p> <p>The fact that a city contemplates having a city hall on one of the floors of a municipal building, to be built under authority conferred by statute to erect a necessary municipal building, does not ijavalidate a bond issue likewise authorized for the purpose, or furnish reason for enjoining their issuance.</p> <p>5. Municipal Corporations — Cities and Towns — Necessary Buildings — Bond Issue — Diverting Funds — Purchaser—Application of Funds.</p> <p>The purchasers of bonds lawfully issued by a city under legislative authority for the purpose of erecting a necessary municipal building are not required to look after the application of the proceeds, and the bonds will not be affected by the municipal authorities diverting the proceeds to an unlawful purpose, though the authorities themselves may be liable therefor.</p>

<p>Bond Issues — Repurchase by State — Treasury Assets — Legislative Authority — Constitutional Law — “Aye and No” Vote.</p> <p>An act authorizing and directing the State Treasurer to deliver ■certain State bonds, repurchased and held as a cash asset, to the payment and satisfaction of a debt against the State does not requir'e the “aye and no” vote, and the readings upon the several days, in accordance with Article II, section 14, of the Constitution. The bonds having theretofore been legally issued, no new debt is created by the act, and they are subject to the disposal by the Legislature as any other property in possession of the department.</p>

ActioN tried before Guión, J., and a jury, at September Term, 1908, of Buncombe. Tbis action is instituted for tbe recovery of tbe penalty imposed by section 2631 of tbe Revisal, for failure to receive a ear load of lumber tendered defendant by plaintiff at Black Mountain station, to be shipped to W. PL Westall, at Asbeville, botb points being within tbis State.

<p>ActioN beard by Justice, J., who found the facts, by consent^ at November Term, 1908, of Cleveland.</p> <p>Plaintiffs appealed.</p>

<p>Appeal from a justice of tbe peace, beard before J ustice, J., and a jury, at January Term, 1909, of Wilkes.</p> <p>Plaintiff appealed.</p>

ActioN tried before Neal, J., and a jury, at October Term, 1908, of Waee. This action was brought to recover damages for waste, alleged to have been committed by the defendant, Lovie Laws,.upon the land described in the pleadings.

ActioN tried before Justice, J., and a jury, at September Term, 1908, of Lincoln. Plaintiff sued for a penalty of $50 a day for seventy-two days, alleging that defendant refused on each day to receive freight tendered for shipment. The evidence tended to show that plaintiff deposited on the defendant’s platform, the usual place for receiving freight, twenty-five bales of cotton waste, and tendered it to defendant’s agent for shipment, which was refused.

ACTION tried before Gouncill, J., and a jury, at March Term, 1909, of Meoelenbueg. Action to recover possession of a lot in the city of Charlotte. It was admitted that, prior to 30 November, 1907, the title was in Malachai Reinhardt. Plaintiff claims title by virtue of a deed executed by Reinhardt to her, 30 November, 1907, and duly recorded. The infant defendants claim as heirs at law, being the children of a deceased daughter.

ActioN to recover damages for tbe negligent killing of Robert Lytle, trie.d by Adams, J., and a jury, at February Term, 1909, of McDowell.

ActioN tried before Adams, J., and a jury, at January Term, • 1909, of McDowell.^ Action for recovery of land. Plaintiffs claim under John E. Gray, wbo, on 12 March, 1819, executed a bond obligating himself to make title to S. N. Stockton upon tbe payment of $300, “as stipulated by note or otherwise.” Tbe signature to tbe bond was attested by H. W. Wise.

ActioN tried before Lyon, J., wbo found the facts, by consent, at December Term, 1908, of New Hanoveb.

<p>AotioN heard, upon report of referee; by Ferguson, J., at September Term, 1908, of McDowell.</p> <p>Plaintiff appealed.</p>

ActioN for damages for breach of contract in sale of land, tried before Justice, J., and a jury, at August Term, 1908, of EuTIIERFORD. The defendants moved to nonsuit; motion overruled. ' Defendants except.

<p>ActioN tried before Ward, J., and a jury, at September Term, 1908, of Buncombe.</p> <p>Defendants appealed.</p>

, rendered at January Term, 1909, of MadisoN, affirming tbe order of tbe Clerk of tbe Superior Court of Madison County confirming tbe report of commissioners in partition proceedings. Defendant appealed.

ActioN for injunctive relief, beard by Justice, J., at March Term, 1909, of Wilees. The plaintiffs allege: 1. That they are citizens and property-owners of the town of North Wilkesboro, N. C., and as such are interested in the welfare of said town and its inhabitants, and have started a suit in the Superior Court of Wilkes County against the above-named defendant. 2.

ActioN for an alleged nuisance, known as tbe Old Rock Quarry of tbe city of Charlotte, tried, before Councill, J., and a jury, at January Term, 1909, of Mecklenbubg. There was allegation, with evidence, on tbe part of plaintiff, tending to show that plaintiff was tbe owner of a dwelling bouse and tenement property adjacent to tbe Old Rock .Quarry, in tbe city of Charlotte, and that — • “3.

' ActioN tried before -Ward, Jand a jury, at October Term, 1908, of Buncombe. Tbe evidence tended to show tbat, on or about 8 October, 1905, plaintiff was a passenger on a mixed train of-defendant company — a freight train, having a passenger coach attached — ■ from Shelby to Asheville, N. 0., and while in the coach he was knocked down and seriously injured by a sudden and unusual jolt given by defendant’s employees in shifting other cars of the train which had been detached.

<p>1. Pleadings — Answer—Demurrer.</p> <p>When a complaint does not state a cause of action, the defect is not waived by answering, and defendant may demur ore tenus, and the Supreme Court may take notice of the insufficiency, ex mero motu.</p> <p>2. State's Lands — Enterer—Time for Payment — The Code — Revisal.</p> <p>The Code, sec. 2760, providing the time limit in which the en-terer of the State’s vacant and unappropriated lands should pay for them, applies to such entries made before the adoption of the Revisal, sec. 173, making certain changes in that respect.</p> <p>3. State’s Land — Enterer—Notice of Entry, by Whom Made.</p> <p>The legislative intent is that the posting of the notice of an entry of the State’s vacant and unappropriated lands should be made by its officer and not by the enterer; and the requirement that the protest should be filed within the ten days during which the notice of entry is posted (The Code, sec. 2765) is mandatory.</p> <p>4. State’s Land — Enterer—Time of Protest — Condition Annexed— Limitation of Actions.</p> <p>The provision that protest must be filed to an entry of the Stateis vacant and unappropriated land within ten days, etc., is a condition annexed to the right of protest, and not a statute, of limitation.</p> <p>5. State’s Land — Enterer—Protest—Pleadings—Irregularities—An-swe r — W a i y e r — D emurrer.</p> <p>When it is alleged by an enterer of the State’s vacant and unappropriated lands, in his complaint, that defendant protested his entries before the time limited for him to take out his grant, and thus prevented him from doing so, pending the proceedings to determine the validity of the protest, the failure to allege that the notice of entry was seasonably given would be but a defective statement of his caiise of action, which an answer would waive, and as against which a subsequent demurrer would be bad, it being equivalent to a motion to dismiss after answer.</p>

<p>Attorney and Client — Judgment—Excusable Neglect — Duty of Client.</p> <p>A person having a suit in court should at least give it such attention as a man of ordinary prudence would usually give to his important business; and when he and a firm of lawyers who represent him have been notified that his case will be called on a certain day of a term of court, and he did not attend and no one attended to represent him, and it does not appear that he had consulted with his lawyers or taken any other steps to protect his interests, excusable neglect to set aside a judgment rendered therein is not shown at a subsequent term by the fact that the member of the law firm having this matter especially in charge was too ill at the time to attend court.</p>

<p>Public Schools — Property in Trustees — Statutory Lien — Materials Furnished — Absence of Legislative intent.'</p> <p>A public-school building vested in trustees for public-school purposes is not subject to a statutory lien for materials furnished for its construction, in the absence of a statute .indicating a legislative purpose to the contrary.</p>

<p>DEFENDANTS’ APPEAL.</p> <p>1. Jurors — Party in Interest — Challenge for Cause — Admission—Reversible Error.</p> <p>In an action against a corporation one of its stockholders is incompetent as a juror, as lie lias a direct pecuniary interest in the result of the trial. When the objecting party has exhausted his peremptory challenges, the ruling of the trial court retaining such juror is reversible error.</p> <p>2. Jurors — Challenge for Cause — Party in Interest — Statutory Cause— Cumulative.</p> <p>The causes of challenge specified in the Revisal are cumulative to that of the incompetency of a person sitting as a juror in a cause in the result of which he is pecuniarily interested.</p> <p>plaintiffs’ appeal.</p> <p>Appeal and Error — Appeal by Both Parties — Relative Merits — New Trial as to Both.</p> <p>The liability of each defendant in this case depends to a great extent upon the liability of the other ; and a new trial having been awarded as to one, it is therefore granted as to both.</p>

<p>ActioN tried by Adams, J., upon tbe pleadings and agreed facts, at April Term, 1908, of Polk.</p> <p>Defendant appealed.</p>

<p>1.' Justice of the Peace — Contract—Jurisdictional Amount — Interest on Excessive Principal.</p> <p>The Constitution (Article IV, section 27-) and the Revisal (section 1419, subsection 1) limit the jurisdiction of justices of the peace in actions upon contract,, to where the sum demanded does not exceed two hundred dollars, exclusive of interest; and a justice of the peace has no jurisdiction in an action to recover the. balance of the principal-due upon a note when it and the interest on the original amount thereof exceeded the sum named.</p> <p>2. Justices of the Peace — Jurisdictional Amount — Application of Payment — I nterest.</p> <p>A payment made upon a note with interest then due must b.e applied first to the extinguishment of the interest and the remainder only upon the principal; and the holder may not apply.such payments to the reduction of the -principal in order to reduce the amount to that cognizable by a justice of the peace, and maintain an action in his court for the principal, as thus reduced, and the accumulated interest in an amount exceeding two hundred dollars.</p> <p>3. Justices of the Peace — Jurisdictional Amount — Summons — Demand- — Remitter—Action Dismissed.</p> <p>The jurisdiction of a justice of the. peace in actions upon contract is determined by the amount of the recovery demanded in the summons; and when this amount exceeds the jurisdictional amount and there is no remitter for^the excess, the action will be dismissed on appeal.</p>

ActioN for damages for tbe negligent burning of plaintiff’s timber land, tried before Ferguson, J., and a jury, at December Term, 1908, of Buexe.

<p>School District — County Board of Education — Special Tax — Proceedings — Regularity Presumed — Burden of Proof — Instructions.</p> <p>In an action to impeach the validity of a local election for the levy of a special tax the presumption of law is in favor of the regularity of the conduct of the authorities, with the burden on the objecting party to show the contrary; and when the regular filing of the petition and the order for the election by the county commissioners, and their confirmation of the election, are shown, no irregularity appearing, it is not error for the judge to charge the jury that, if they believed the evidence, the plaintiffs had not made out a case.</p>

Actiow tried before Peebles, J., and a jury, at Spring Term, 1909, of MacoN, to recover upon an alleged contract of employment. From tbe ruling and judgment tbe plaintiff appealed.

ActioN tried before Peebles, J., and a jury, at July Term, 1908, of Haywood, to recover damages for a personal injury alleged to have been received by plaintiff, Connie E. Fortune, caused by tbe negligence of tbe defendant.

<p>CONTROVERSY without action submitted to Allen, J., at Spring Term, 1909, of JoNES.</p> <p>From the judgment rendered the plaintiff appeals.</p>

ActioN tried before Long, J., and a jury, at January Term, 1909, of Guilford, to recover damages for tbe negligent killing of plaintiff’s intestate. Tbe usual issues of negligence, contributory negligence and damage were submitted and found against defendant. From tbe judgment rendered tbe defendant appealed. Tbe facts are stated in tbe opinion of tbe Court.

ActioN against a carrier to recover penalties, tried by Quion, 3at Spring Term, 1908, of OhekoKEE. His Honor rendered judgment against tbe defendant, and tbe defendant appealed to tbe Supreme Court. Tbe facts are stated in tbe opinion of tbe Court.

ActioN tried before Long, J., and a jury, at October Term, 1908, of Scotland. The record discloses the following case: Plaintiff, on 5 July, 1904, entered into a contract with defendant company as “charterer” of an excursion train, consisting of one baggage car and not less than five passenger coaches, to be run from Gibson, N. C., to Wilmington, N. O., and return.

<p>ActioN tried before Ward, J., and a jury, at Spring Term, 1909, of GRAHAM.’</p> <p>The facts, as stated in the record, are: One A. L. Adams, under whom plaintiffs claim, on 6 February, 1901, laid the following entry in the office of the entry taker of Graham County; “A. L. Adams enters and locates 300 acres of land in said county and State, in District Ten, on waters of Little Santeetla Creek, beginning on a chestnut tree and runs various courses for complements.” A warrant of survey was issued 29 June, 1903, and the survey made 12 September, 1903. A grant issued 13 October, 1903. On 16 February, 1903, one Jenkins, under whom the defendants claim, laid an entry, No. 1948, and, on 6 March, 1903, another entry on land in said county. Both of these entries were surveyed, and land located, 23 June, 1903, and grants issued 20 June, 1904. These entries were also vague and indefinite. It was admitted that the Jenkins entries covered the land described in the Adams grant. Plaintiffs had no notice of defendants’ survey. Defendants claimed that plaintiffs held the legal title to the land in trust for them. An issue directed to this inquiry was submitted to the jury and, under instruction of the court, answered in the negative. Judgment was rendered, declaring plaintiffs to be the owners of the locus in quo and removing the cloud from their title, etc. • Defendants excepted, assigned as error his Honor’s instruction, and appealed.</p>

<p>1. Arrest and Bail — Interpretation of Statutes — Construed as a Whole — Revisal.</p> <p>The Revisal, secs. 735, 737 and 1920 et seq., prescribing the methods by which a prisoner may be discharged, in certain instances, before final judgment, 'should be construed together; and. so construed, the remedies given in section 1920 et seq. are in addition to those given in sections 73(5 and 737.</p> <p>2. Arrest and Bail — Alienating Wife’s Affections — Insolvent Debtors— Inventory of Property — Release.</p> <p>A suit by one charging defendant with alienating the affections of his wife, and arresting him and holding him for bail, under the affidavits required (Revisal, see. 7271, subsec. 2), is one entitling defendant to the benefit of the statute for the relief of insolvent debtors; and upon his filing “a full and true inventory of his estate, real and personal, with encumbrances existing thereon,” etc., in accordance with the Revisal, sec. 1930, he is entitled to his discharge from custody.</p> <p>3. Arrest and Bail — Alienating Wife’s Affections — Insolvent Debtors— Inventory of Property — Statements—Surplusage—Issue—Fraud.</p> <p>One who has another arrested and held to bail for alienating the affections of his wife does not raise an issue or suggestion of fraud (Revisal, sec. 1931) by answering the petition for discharge and denying a statement therein made by petitioner that he is advised by counsel that, owing to the condition of the title to certain lands scheduled, an execution could not issue against it, as such statement is surplusage, (Adams v. Alexander, 23 N. C., 501, cited and distinguished. The procedure upon the question of fraud, when the husband has scheduled lands in which he claims his wife has no interest, and he has paid the purchase price, discussed by Con-NOR, J.)</p>

ActioN to recover the amount of a draft, tried before Lyon, J., and a jury, at December Term, 1908, of New HanoveR. There was evidence tending to show that, on 4 February, 190'4, defendant company drew a draft in words and figures as follows: “$286. Dunn, N. C., 4 February, 1904. Dunn Oil Mills Company. Three days sight, pay to the order of Merchants and Farmers Bank, Dunn, N. C., two hundred and eighty-six and 00-100 dollars. Invoice No. 1072. January 13, 1904.

<p>ActioN from G-rahaM, Spring Term, 1909, beard by Ward, J., by consent, at Murphy.</p> <p>Defendants appealed.</p>

ActioN tried before Justice, J., and a jury, at January Term, 1909, of WlLKES. In 1890, upon completion of tbe railroad to a point opposite Wilkesboro, tbe Winston Land Company purchased tbe land around tbe new station and laid it off into lots, streets and alleys for a town. Tbey made a map of tbe new town, wbicb they procured to be incorporated as North Wilkesboro.

ActioN for damages and injunction, beard by Justice, J., at November Term, 1908, of Mecklenbukg.

ActioN tried before Guión, J., and a jury, at February Term, 1908, of Haywood.

CONSOLIDATED actions tried before Coolce, J., and a jury, at April Term, 1907, of Buncombe. The record discloses the following facts, in regard to which there is no controversy: One D. S. Russell was, on and prior to 21 September, 1900, the owner of one Junior ’Westinghouse engine, No. 629, two band wheels and one 60-horse-power boiler, with the fixtures attached thereto.

ActioN tried before Peebles, J:, and a jury, at March Term, 1908, of. Buncombe, to recover damages for the negligent killing of William Smith. At the conclusion of the evidence the court intimated an opinion that, upon the entire evidence, the defendant, as matter of law, was not liable, and that he would so instruct the jury. In deference to this intimation of opinion the plaintiff’submitted to nonsuit and appealed.

ActioN under section 2361, Revisal, 1905, for wrongful failure to receiye freight for shipment, tried before Justice, J., and a jury, at January (Special) Term, 1909, of Ruthekfokd.

<p>ActioN tried before Biggs, J., and a jury, at June Term, 1907, of Martin.</p> <p>Defendant appealed.</p>

<p>1. Corporations — Shares of Stock — Voting Trust or Pool — Public Policy — Rights of Individual Owner..</p> <p>A stock agreement which takes away from the stockholders all right to vote 'for a period of three years after a certain future time, and provides for a voting committee to decide upon facts or conditions to conclude and bind all parties in interest, is contrary to public policy and void, as each stockholder must be free to cast his vote for what he deems for the best interest of the corporation.</p> <p>2. Corporations — Shares of Stock — Voting—Legal Title — Beneficial Ownership — Illegal Trust — Public Policy.</p> <p>An agreement which, separates the beneficial ownership of stock in a corporation from the legal title is contrary to public policy ancl void.</p> <p>3. Corporations — Shares o.f Stock — Voting Trust — Proxy—Period of Duration.</p> <p>An agreement pooling stock in a corporation which creates a voting trust, with absolute powers to decide upon matters arising for a period exceeding three years, cannot be considered as a proxy authorized by the Bevisal, sec. 1184. A proxy is only good for the period of three years.</p> <p>4. Corporations — Shares of Stock — Voting Trust — Proxy—Powers Revocable.</p> <p>An agreement to pool shares of stock in a corporation for voting purposes, if considered as a proxy (Bevisal, sec. 1184), cannot be made irrevocable.</p> <p>5. Corporations — Shares of Stock — Demand—Voting Trust — Lawful . Intent — Answer Insufficient.</p> <p>An answer of an illegal pool for the voting of corporation stock to a demand for possession of his stock' by a purchaser of the stock so held, that it would not vote such stock illegally, etc., is insufficient.</p> <p>6. Corporations — Voting Trust — Shares of Stock — Rights of Purchaser — Injunction.</p> <p>A purchaser of shares of corporation stock held by an illegal voting trust may enjoin the voting thereof by the trust or its carrying out a contemplated plan of reorganization, and may vote the same in all stockholders’ meetings.</p>

<p>1. Husband and Wife — Wife’s Separate Personalty — Wife’s Note— Consent of Husband — Charge Specific-by intendment.</p> <p>A note signed by a feme covert alone, but with the written consent of her husband, will not bind her separate personal property to its payment when it does not expressly or by clear intendment and application create a specific charge against her property, sought to be bound for its payment.</p> <p>2. Husband and Wife — Wife's Separate Realty — Wife’s Note — Consent of- Husband — Charge Specific — Equity—Privy Examination.</p> <p>For a feme covert to bind her real property to the payment of a note given by her, she must execute a formal conveyance or some paper writing which in equity may be a charge upon her separate estate, accompanied by the written assent of her husband and her privy examination.</p> <p>Clark, C. J., dissenting, arguendo.</p>

<p>Plaintiff appealed.</p>

<p>Action tried before Lyon, J., and a jury, at October Term, 1908, of Sampson.</p> <p>Defendant appealed.</p>

<p>For digest see Olarlz, Mugenia Mfg. Go.'eb al. v. Saco-Pettee. Machine Go. et al., ante, S72.</p> <p>This is a proceeding brought under section 1199 of the Re-visal for the dissolution and settlement of a corporation, the Clark Manufacturing Company, doing business in Jonesboro, N. 0., formerly in Moore, but now in Lee, County.</p> <p>The cause is now pending in the Superior Court of Lee County. His Honor, Judge Long, made a decree, at chambers in Richmond County, to which defendants excepted and appealed.</p>

<p>In this case no error was found on appeal, and the rights of the parties were determined in a former appeal (147 N. C., 314).</p>

<p>ActioN tried before Justice, J., and a jury, at October Term, 1908, of MECKLENBURG.</p> <p>Plaintiff appealed.</p>

<p>Action tried before Ferguson, J., and a jury, at September Term, 1908, of McDowell.</p> <p>’Defendant appealed.</p>

ActioN tried before Guión, J., and a jury, at September Term, 1908, of CueRitucK. Tliis is an indictment under section 3474 of- tbe Revisal for anchoring a float bouse in sboal water on tbe west side of Curri-tuck Sound and more than three hundred yards from'the mainland. ' John Forbes, a witness for tbe State, testified: “During tbe year 1907 I saw tbe defendant in tbe float. He was on the eastern side of Duce Quarter Island, after dark. I do not remember tbe month.

<p>ActioN tried before Lyon, J., and a jury, at September Term, 1908, of Pendes.</p> <p>Defendants appealed.</p>

ActioN tried before W. JR. Allen, J., and a jury, at August Term, 1908, of Nash, for tbe larceny of fish. Tbe defendant was convicted, and from tbe judgment of tbe court appealed.

ActióN beard before O. II. Allen, J., and a jury, at Fall Term, 1908, of OartbRÉt. The defendant was tried and convicted in the mayor’s court of Morebead City for violating the following ordinance of said municipality: “That it shall be unlawful for any person, firm or corporation • to sell any drink within the said town of Morehead City for which the. said person, firm or corporation has been required by or has secured a license from the United States Government for the…

<p>ActioN beard before IF. R. Allen, J:, at December Term,. 1908, of Martin.</p> <p>Appeal by tbe State.</p>

<p>INDICTMENT for assault with, deadly weapon on one Grover Harrell, tried before W. B. Allen, J., and a jury, at September Term, 1908, of Edgecombe.</p> <p>Defendant entered the plea of “not guilty” and “former conviction,” it having been agreed by consent that the two pleas could be beard together. After the evidence was all in, there being no material dispute in the same on the question of former conviction of simple-assault, it was further agreed that the court-should submit the question of assault with a deadly weapon to the jury and take a verdict thereon, subject to the determination of the plea of former conviction by the court as on facts agreed, in case there was a verdict of simple assault only. The jury rendered a verdict of not guilty of assault with a deadly weapon, but guilty of simple assault; thereupon the court found the facts as to the alleged former conviction, and the same seem to be correctly epitomized in the following statement:</p> <p>The defendant had a fight with one Grover Harrell, in No. 9 Township, on 14 March, 1908. On 15 March, 1908, the defendant saw J. L. D. Corbett, a justice of the peace, and told him that he had a fight and expected he would have to pay for it, and asked that, if a warrant was issued for him, the justice would make it returnable about 12 o’clock M., as he and his hands were at work in the wpods and would be at home at that time for dinner. He also gave the names of those present at the fight, among which was the name of Silas Crisp, who worked with the defendant and who is a cousin of the prosecuting witness, Grover Harrell. During the morning Crisp was seen by the justice in the town and required to make the usual affidavit Upon which to have a warrant for an affray. The usual warrant was issued, but, while Orisio actually swore to the affidavit, neither he nor the justice signed the affidavit or warrant. There being no constable or other officer in said township authorized to serve process, the justice delivered the warrant to one Wals-ton, directing him to summon the prosecuting witness, Grover Harrell, and also his brother, who was at the fight, and his father, as well as the witnesses for the defendant. Walston went to the house of the prosecuting witness with the warrant, and upon the return reported to the justice that the Harrells said they would not attend. Neither the authority to Walston to execute nor his return were in writing. The defendant was not arrested, but while Walston had gone to summon the witnesses the justice saw the defendant and informed him of the warrant and the time of trial, and the defendant voluntarily attended. The justice delayed the trial until 2 o’clock P. M. to see if the prosecuting witness would attend. He did not appear, and the justice examined several witnesses who saw the fight, two of whom were not related to tbe defendant, but were cousins of tbe prosecuting witness. He also examined Dr. C. B. Walton, wbo bad seen and talked witb tbe prosecuting witness since tbe fight, and, upon tbe 'testimony of all these, adjudged tbe defendant guilty and that be pay a fine of $1 and $6.65 costs: This judgment was in -writing and signed by tbe justice, and was paid. Tbe witnesses examined by tbe justice were defendant’s witnesses in this trial, and tbe justice wbo tried him was bis friend in tbe Superior Court and aided bis counsel in tbe trial and was surety for bis appearance at September Term, 1907.</p> <p>Upon these facts tbe court overruled tbe plea of former conviction, and, on tbe verdict of guilty rendered by tbe jury, imposed a fine of $1, and defendant excepted and appealed.</p>

<p>Indictment, Bill of — Sufficiency—Fornication and Adultery.</p> <p>A bill of indictment for fornication and adultery sufficiently alleges the offense, under the statute (Revisal, sec. 3350), when it charges that a certain man and woman, by name, “did unlawfully bed and cohabit together.” (Revisal, sec. 3254.)</p>

INDICTMENT for murder, tried before Biggs, J., and a jury, at November Term, 1908, of Robeson. The prisoner was convicted and sentenced to death. From the judgment of the court be appealed.

INDICTMENT for embezzlement, beard before W. B. Allen, J., and a jury, at October Term, 1908, of Nance.

INDICTMENT for murder, tried before Long, J., and a jury, at September Term, 1908, of Richmond. The defendant, Cary Quick, was convicted of manslaughter. The other defendants named in the bill were acquitted. From the judgment of the court the-defendant, Cary Quick, appealed. The facts are stated in the opinion of the Court.

IndxctMent for murder, tried before Long, J., and a jury, at September Term, 1908, of Anson. Before the jury was impaneled, the solicitor stated to the court, in the presence of the prisoner and his counsel, that he would not ask for a verdict of murder in the first degree, but for a verdict of murder in the second degree or of manslaughter, as the facts might warrant.

INDICTMENT for perjury, tried before W. J. Adams, J., and a jury, at January Term, 1909, of Cumberland.

INDICTMENT for tbe murder of Charles Whichard, tried at September Term, 1908, of the Superior Court of Martin, before . W. R. Allen, J. The prisoner was convicted of the capital felony, and from the judgment of the court appealed. The facts are sufficiently stated in the opinion of the Court.

<p>INDictment for incest, tried before Long, J., and a jury, at December Term, 1908, of Randolph.</p> <p>Defendant appealed.</p>

<p>ActioN tried before Guión, J., and a jury, at February Term, 1908, of Swain.</p> <p>The defendant was indicted in a bill containing two counts, the first for disturbing a religious congregation, and the second, under the Revisal, sec. 3706, for being intoxicated at a place of public worship.</p> <p>The State introduced one B. M. Peek, who testified: “I was at Yellow Mountain Church. There was preaching there on that day. Services had been concluded about five minutes. I was one of the first to 'come out of the church, and as I came out I saw defendant within about five steps of the church; he was drunk. The majority of the congregation were still in the church. He did not create any disturbance.”</p> <p>At the conclusion of this evidence the State rested its case. Defendant demurred to the evidence; demurrer sustained by the court. Exception by solicitor for the State. Notice of appeal by the State given in open court.</p>

INDICTMENT for obtaining goods by false pretenses, tried before CounciU, J., and a jury, at February Term, 1909, of Gaston. There was verdict of guilty, and from judgment on the verdict defendant axipealed.

INDICTMENT for perjury, tried before Murphy, J., and a jury, at November Term, 1908, of Catawba. Tbe defendant was called upon to plead to tbe following bill of indictment: “Tbat B. S. Cline, of Catawba County, did willfully, unlawfully and feloniously commit perjury upon tbe trial of an action in a justice of the peace’s court, before J. EL Mclelland, in Catawba County, wherein W. II.

<p>1. Indictment — Unlawful Burning, etc. — Allegation of Ownership— Identification — Description.-</p> <p>On a trial under an indictment containing two counts for unlawfully, etc., setting Are, etc., and also attempting to burn, etc., a certain stable and granary, the property of and in possession of W. (Revisal, secs. 3338, 3336), the evidence was that the stable and granary was owned by a different person than the one named, who had.rented it to W., and he had stored corn in the granary end of the building: Held, the allegation of ownership was for identification of the property, and it was sufficiently proved by thus showing occupancy.</p> <p>2. Same — Instructions.</p> <p>When an indictment charges the unlawful, etc., setting fire to a granary, the property of W., and an unlawful attempt to burn the barn, etc., of W., and the evidence tends to show that S. was the owner, but had .rented it to W., who had stored corn therein, it is not error for the trial judge to charge, in effect, that if the jury so find the facts beyond a reasonable doubt, and likewise find beyond a reasonable doubt that defendant willfully set fire to and burned said house, with the corn of the prosecutor in it, it was their duty to return a verdict of guilty.</p> <p>3. Indictment — Two Counts — General Verdict — Defective Count— Judgment Arrested.</p> <p>When there are two counts in a bill of indictment charging an unlawful, etc., burning of the house of another,-and the jury have returned a general verdict of guilty, judgment may not be arrested upon the ground that one of the counts is defective.</p> <p>4. Indictment, Sufficient — Setting Fire to Property.</p> <p>A count in a bill of indictment charging that defendant “did unlawfully, wantonly, willfully and feloniously set fire to a stable and granary, then and there the property and in possession of W.,” etc., is good, under the Revisal, sec. 3338.</p>

INDICTMENT for selling whiskey in tbe city of Asheville contrary to law, tried on apiieal from the police -court of the city of Asheville, before Ward, J., and a jury, at November Term, 1908,'of Buncombe. The procedure under which conviction was had is shown in the affidavit and warrant appearing in the record, as follows: “North Cakolina- — Buncombe County.

<p>1. Cities and Towns — Police Courts — Excessive Sentence — Appeal and Error — New Trial — Procedure—Remand—Resentence.</p> <p>A defendant is not entitled to a new trial -upon appeal by reason of a sentence of punishment imposed by a police justice of a city greater than that authorized for the offense committed. The procedure would be to remand the case for resentence in conformity with law.</p> <p>2. Misdemeanor — Disorderly Houses — Common-law Offense — Cities and Towns — Void Ordinance.</p> <p>A city ordinance, without statutory authority, which covers acts that are misdemeanors at the common law and punishable under the criminal laws of the State, and which imposes a greater penalty for their violation, is void.</p> <p>3. Misdemeanor — Disorderly Houses — Common-law Offense — Ashe-ville Charter, Interpretation of.</p> <p>The common-law offense of keeping a disorderly house is not repealed, in reference to the city of Asheville, by its charter (chapter 100, Private Laws 1901, sec. 77).</p>

IndxctmeNt tried before Webb, J., at February .Term, 1909, of Forsyth', for larceny from tbe person of a pocketbook of tbe value of $1. Tbe defendants were convicted, and moved in arrest of judgment, upon tbe ground tbat tbe recorder’s court of Winston bad exclusive original jurisdiction of tbe offense charged in tbe bill. Motion overruled. Defendants appealed. Tbis constitutes tbe only assignment of error.