Volume 151 — North Carolina Reports

Civil ACTION, in the nature of quo warranto, brought in the name of the State, upon leave granted by the Attorney-General, upon relation of W. 0. Barnett, against S. E. Midgett, to recover possession of and try the title to the office of the Clerk of the Superior Court of Dare County, tried before Peebles, J., and a jury, at May Term, 1909, of the Superior Court of said county.

ActioN beard upon demurrer to tbe complaint by bis Honor, W. B. Allen, Judge, at July Term, 1909, of tbe Superior Court of Wake County. His Honor sustained tbe demurrer, and from tbe judgment rendered plaintiffs appealed.

, February Term, 1909, of Beaufort. Petition to sell land for assets, beard on appeal from tbe clerk of tbe Superior Court and on case agreed. Tbe facts agreed upon ;jvere as follows: 1. That on or about the_day of July, 1908, Fred. Respass died intestate in tbe county of Beaufort and seized of tbe lands described in tbe petition in this cause. 2. That tbe said Fred.

<p>1. Notes — Original Parties — Restrictive Endorsements — Delivery— Presumptions.</p> <p>Tbe time of the operative effect of Revisal, sec. .2845, relating to negotiable instruments, was 8 March, 1899; and prior thereto, as between the original parties, one who wrote his name across the back of the instrument, could show the exact nature of the obligation assumed, whether as .ioint promissor, guarantor or first or second endorser, „the presumption of the law, in the absence of such qualifying testimony, being that he signed as co-maker, or at least as surety.</p> <p>2. Same — Instructions—Questions for Jury.</p> <p>In an action on a promissory note made in February, 1899, when it appears from the instrument itself and admissions in the pleadings, in evidence, that the defendant wrote his name across tlie back of the note, before delivery to payee, to enable the maker to obtain a loan from the payee, without further evidence tending to restrict or qualify the nature of his obligation, and the amount claimed to be due is not disputed, the defense that the defendant was discharged by the laches of the payee in the collection of the note from the maker and by failure to give notice of default, is invalid, and a charge is correct that if the jury believe the evidence they should render a verdict for plaintiff.</p> <p>3. Notes — Liability of Endorsers — Original Parties — Restrictive Endorsements — Undated Endorsements — Burden of Proof.</p> <p>The question as to whether an undated endorsement on a note is presumed to bear the same date of the instrument only in favor of third persons, and has no application between the original parties, is not involved, when it appears from the admissions that the defendant, in a suit upon a note, wrote his name across its back before delivery to enable the maker to obtain money from the plaintiff, and there is no evidence restrictive of the defendant’s obligation, which it is upon him .to show.</p> <p>4. Notes — Endorser—Liability.</p> <p>Whether see. 50, Code, 1883, by which all endorsers are declared to be prima facie sureties, applies to a transaction of this character or is confined to endorsements in the strict sense of mercantile law by which the title to a note is passed and same put in circulation as a negotiable instrument. Quaere.</p>

<p>1. Appeal and Error — Estoppel—Res Judicata — Evidence.</p> <p>When tbe contents o£ records in a former suit, upon which a plea in estoppel or res judicata is based, do not appear on appeal, the Supreme Court will not pass upon the question as there is no evidence to support the plea.</p> <p>2. Evidence — Nonsuit—Limitations of Action.</p> <p>Without deciding whether a motion to nonsuit upon the evidence is the proper method of raising the question of the bar of the statute of limitations, the motion will be denied when there is conflicting evidence upon the issue.</p> <p>3. Partnership — Trusts and Trustees.</p> <p>Partners stand in a fiduciary relationship to each other, and ordinarily the rules and tests applicable to trustees are applicable to their conduct towards each other.</p> <p>4. Same — Limitations of Actions.</p> <p>When one partner receives the assets of the firm for the purpose of paying its debts and settling its affairs he acts as a trustee or agent for his co-partner, and when such relationship is shown to exist without evidence that it had been terminated, it is not error to refuse a motion to nonsuit under the plea of the statute of limitations.</p> <p>5. Instructions — Evidence—Questions for Jury.</p> <p>An instruction, “If you find by the greater weight of the testimony that the plaintiff’s evidence on the fourth issue is not positive and supported, then you will answer that issue ‘Yes,’ ” is properly refused as invading the province' of the jury to pass upon the weight and sufficiency of the evidence.</p> <p>6. Partnership — Evidence—Transactions.</p> <p>In an action to dissolve a partnership it was not error in the trial court to refuse to dismiss the action as to a certain line of business, when there was evidence that it was embraced in the partnership dealings and which was germane to the issue.</p> <p>7. Jurors — Improper Conduct — Court’s Discretion.</p> <p>While it is not proper conduct for a party litigant to talk to a juror sitting in his cause, it is within the discretion of the trial judge to set the verdict aside, and his decision is not reviewable, when he had not said anything relating to the cause then being tried, and when it was found by the judge and appears to be harmless in its effect.</p> <p>8. Motions — Set Aside Verdict — Additional Evidence — Court’s Discretion.</p> <p>When the trial judge has heard the evidence adduced upon a motion to set aside a verdict because of the improper conduct of a party in talking to a juror in his cause, it is within his discretion to refuse additional evidence, and his decision is not reviewable.</p>

, May Term, 1909, of Beaueoet. This action was bfought against the defendants, the Atlantic Coast Line Railroad Company and the Southern Railway Company, to recover damages for injury to a soda fountain, which was delivered by the plaintiff to the first-named company at Grifton, N. C., to be shipped via Selma, N. 0., to J. 0. Reitzel, at Liberty, N. C., a station on the Southern Railway. When it was delivered for shipment the soda fountain was in good condition.

, January Term, 1909, of WASHINGTON. Action for the possession of land, the right of which was denied by defendant, who alleged that the plaintiff gave him an option of purchase and wrongfully refused to comply with its terms.

<p>Appeal from Peebles, J., Spring Term, 1909, of Gates.</p> <p>Action for damages alleged to have been caused by diminishing the output of plaintiff’s sawmill, etc., by reason of defendant’s unreasonable delay in transporting and delivering a sawmill edger.</p> <p>The plaintiff purchased in Norfolk, Va., and delivered to the defendant for transportation to the plaintiff at Eure, N. C., on 16 March, 1907, a sawmill edger. This machine weighed about 1,000 pounds and was delivered to and carried “open” by the defendant. The distance from Norfolk, Va., to Eure, N. C., is forty-seven miles — nineteen miles to Suffolk, and from Suffolk to Eure, via Atlantic Coast Line Eailroad Company, twenty-eight miles. There was no continuous line of road operated by the defendant from Norfolk to Eure. 'The sawmill was delivered by the defendant (twenty-nine days after _ delivery for shipment) to the Atlantic Coast Line Eailroad Company at Suffolk on 15 April, 1907, and was delivered the same day at Eure, N. C., to plaintiff. The record contains the following additional statement: “There was no evidence that the Southern Eailway Company had any information whatever about the nature of the machinery, the purposes for which it was intended, and any inconvenience or loss that would be sustained by the delay, other than what was disclosed by the character of the machinery itself.” The defendant, at the conclusion of the evi-deuce, moved to nonsuit the plaintiff. Motion denied. Defendant excepted.</p> <p>The defendant requested the court to charge the jury as follows : “That there is no evidence of such notice or that it could be reasonably iiresumed by the defendant that-such consequences would follow.” This request was refused, and defendant excepted. The court charged the jury that it was for them to determine whether the fact that the machinery was shipped open by the plaintiff over defendant’s line, and that defendant could inspect the same and know for what it was intended, was sufficient to put the defendant on notice that the alleged damage to the plaintiff’s business would occur, or to make them reasonably presume that it would. The defendant excepted to this charge. There was evidence as to the amount of damage sustained by the plaintiff, but no exception by the defendant to the charge of his Honor laying down the rule by which the jury should ascertain the plaintiff’s damage, if the plaintiff was entitled to special damages. The only issue submitted to the jury was: “What amount of damage is plaintiff entitled to recover, if any, of the defendant, the Southern Railway Company?” The answer of the jury was: “Two hundred and ten dollars.” From a judgment upon the verdict the defendant appealed.</p>

, Spring Term, 1909, of Bertie. This is an action to convert defendant into a trustee for the plaintiff as to a tract of land.

, June Term, 1909, of WarREN. The action was brought to recover the purchase price of ■ certain machinery sold by the plaintiff company to the defendant, the Wise Granite Company. The defendant sets up a counterclaim for damages in a breach of the contract as a set-off against the purchase money. These issues were submitted: 1. “Is the defendant indebted to the plaintiff, Lambert Hoisting Engine Company?

, January Term, 1909, of Pasquo-TANK. These issues were submitted: 1. “Was the plaintiff injured by the negligence of defendant, as alleged? Answer: “Tes.” 2. “Did the plaintiff contribute to bis own injury, as alleged?” Answer: “No.” 3. “Did the plaintiff assume the risk of the injury suffered by him, as alleged?” Answer: “No.” 4. “What damage, if any, has plaintiff sustained ?” Answer: “Twenty-two hundred and fifty dollars.” From the judgment rendered defendant appealed.

<p>Appeal from Guión, J., Spring Term, 1909, of .Bertie.</p> <p>From a judgment for plaintiff defendant ajipealed.</p> <p>Tbe plaintiff alleged that be was tbe sole beneficial owner of tbe property insured; tbat defendant, on 5 July, 1906, issued its policy of insurance for $500; tbat tbe property was destroyed by fire 24 May, 1907, tbe policy being in force; tbat proof of loss was made, tbe loss adjusted and defendant promised to pay full amount of policy and issued its check therefor, but tbe same was recalled before delivery to plaintiff; tbat tbe policy bad not been assigned, but was held simply as collateral security. Tbe defendant denied plaintiff’s ownership of tbe property insured; alleged tbat the title was -in one "Wilmer Modlin; admitted it issued tbe policy of insurance, using tbe standard form prescribed in section 4760, Revisal; admitted destruction of prop- ' erty, but denied liability; alleged tbe execution of tbe following nonwaiver agreement by plaintiff and defendant:</p> <p>“NONWAIVER Agreement.</p> <p>“29 May, 1907.</p> <p>“It is hereby mutually stipulated and agreed by and between J. A. Modlin, party of the first part, and the insurance company or companies whose name or names are signed hereto, each acting for itself, party of tbe second part, that any action taken, request made or information received by said party of tbe second part in or while investigating or ascertaining the cause of fire, tbe amount of loss or damage, or other matter relative to the claims of said party of tbe first part for property alleged .to have been lost or damaged by fire on 24 May, 1907, shall not in any respect or particular changé, determine, waive, invalidate or forfeit any of tbe terms, conditions or requirements of the policy of insurance of tbe second part held by tbe party of tbe first part or any of the rights whatever of any party hereto.</p> <p>“Tbe intent of this agreement is to save and preserve all tbe •rights of all tbe parties hereto and permit an investigation of tbe claim and tbe determination of tbe amount-of the loss or damage, in order tbat tbe party of tbe first part may not be unnecessarily delayed in bis business, and that tbe amount of bis claim may be ascertained and determined without regard to tbe liability of the party of tbe second part, and without prejudice to any rights or defenses which said party of tbe second part may have. Atlantic Fire Insurance Go.,</p> <p>“J. A. Modlin. By W. B. Swindell.”</p> <p>Alleged tbat tbe policy was avoided (1) because tbe assured swore falsely, in that be swore in tbe proof of loss tbat tbe property described in tbe policy belonged at the time of the fire to insured, and no other person or persons bad any interest therein, thereby violating an express provision of tbe policy; ,-(2) tbat tbe plaintiff was not tbe sole and unconditional owner of the property insured; (3) that the plaintiff violated the following stipulation in the policy: “If any change, other than by the death of the insured, take qilace in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of insured, or otherwise,” the policy shall be void, in that two mortgages were placed on the property, one before and the other after the policy was issued, and both without the knowledge of the defendant; (4) that this action was not brought within the time specified in the policy contract, to-wit, one year.</p> <p>The evidence established the following facts: (1) That the plaintiff was the sole beneficial owner of the j>roperty, the naked legal title being in Wilmer Modlin. (2) That two mortgages were placed on the property, one before and the other after the policy was issued. (3) That the defendant had no knowledge of either until after the fire, the existence of the mortgage being discovered by defendant’s adjuster during the investigation of the causes of the fire and the adjustment of the loss. (4) That the mortgages were unpaid at the time of the fire. (5) That proof of loss was filed on 5 June, 1901, and that on 6 June defendant sent draft to its agents at Tarboro, who placed the insurance for the amount of adjustment and so notified plaintiff and the holder of the first mortgage and the assignee of the policy of insurance; that the draft was recalled before delivery, and the plaintiff and his assignee so notified, and the plaintiff informed that the matter of payment of-loss was postponed until a meeting of directors of defendant, on 15 July, 1907. No further correspondence passed between plaintiff and defendant after 25 June, 1907. (6) Summons was issued 22 June, 1908.</p> <p>His Honor submitted the following issues, which, under his direction, were answered in favor of the plaintiff, to-wit:</p> <p>“Is the defendant indebted to plaintiff, as alleged in the complaint ?</p> <p>“Is the action of plaintiff barred?”</p> <p>The .defendant in apt time moved both to dismiss the action and for judgment of nonsuit; also requested his Honor, by specific prayers, to instruct the jury that the plaintiff could not recover, and to answer each issue in its favor. It was agreed that if plaintiff was entitled to recover, the amount -was $495, less $45.40, premiums unpaid on the policy. At the end of the case on appeal his Honor makes this statement: “The case was tried by the court upon the theory that after the loss by fire and after the adjustment of such loss the agent and adjuster, with admitted knowledge of tbe mortgages upon the property, thereafter sent check in payment.”</p>

<p>1. Parties — Joinder of Husband — Demurrer.</p> <p>A demurrer will not be sustained for non-joinder of the husband in an action brought by the wife to declare certain trusts in her favor in a deed made by her deceased father.</p> <p>2. Parties — Order to Make Parties — Objections and Exceptions — Demurrer — Appeal and Error.</p> <p>When no exception is taken in the court below to an order making a defendant a party in his additional capacity as administrator, a demurrer that he was not made a party as administrator will not be considered on appeal.</p> <p>3. Suits — Causes of Action — One Cause.</p> <p>Plaintiff alleging that defendants destroyed a certain paper writing in which her deceased father appointed to her certain of liis real and personal property under a parol trust in a deed he had theretofore made, sets out one cause of action.</p> <p>4. Superior Courts — Jurisdiction—Parol Trusts — Equity.</p> <p>When it is alleged that plaintiff’s deceased father had created a parol trust under a deed in her favor in certain of his real and personal property, and that he had subsequently executed a paper writing declaring the trusts, which defendants had destroyed, the action is properly cognizable in the Superior Court, to enforce the trusts declared, whether the writing be a deed or a will, and it can give relief in its equity jurisdiction; and leave given the plaintiff to probate the paper as a deed, or will, under penalty of dismissal, is erroneous.</p> <p>5. Parties — Severable Actions — Action Divided — Procedure.</p> <p>When several causes of action are improperly joined, on a demurrer therefor, the judge should order the pending action divided accordingly, and not grant leave to plaintiff to bring separate actions under penalty of dismissal.</p>

<p>1. Carriers of Goods — Rights of Way — Invitation Implied — Trespass.</p> <p>A railroad company by customarily allowing passengers to get off aucl on a train stopping at a coal-chute, collecting their fares therefrom, etc., impliedly invites them to do so, and one acting accordingly is not a trespasser on the lands of the defendant there.</p> <p>Z. Same — Negligence—Questions for Jury.</p> <p>Evidence on the question of actionable negligence is sufficient upon which to submit the case to the jury, tending to show that defendant railroad company knowingly permitted passengers to get off and on its trains stopping at a coal-chute in a town, some distance from the station, collected fare there, etc., and that plaintiff, a passenger, got off the defendant’s train at that place on a dark night, and fell into defendant’s unlighted coal-chute nearby, sustaining the injury complained of, which could have been prevented by a guard-rail.</p>

<p>Witnesses — False Testimony — Damages.</p> <p>A witness is not liable for damages for alleged willful and false testimony given by bim in a former case, upon tbe ground that by reason thereof the plaintiff had lost his suit in the former action. Such action would not lie at common law, and there is no statute authorizing it.</p>

<p>1. Insurance — Fraud and Deceit — Instructions Unresponsive — Questions for Jury.</p> <p>In an action of fraud and deceit against a life insurance company, in wliicli it was alleged that defendant obtained tbe policy from plaintiff by falsely and fraudulently representing that be would receive back bis premiums paid, and interest thereon, at the expiration of ten years, there was evidence that plaintiff was told by one P., after he had received and paid premiums on his policy, that the policy was worthless in that respect; that this was repeated to defendant’s agent who then said that the policy was “as good as gold.” Held, error for the judge to instruct the' jury to find the issue on the question of fraud and deceit in the affirmative if they found that the agent had- said that the policy was “as good as gold,” as such was not responsive to the issue. It likewise prevented the jury from finding the truth or falsity of the statement of P.</p> <p>2. Instruction on Different Issues — Error Not Cured as to One.</p> <p>An erroneous instruction upon one issue cannot be cured by an instruction upon a different issue, when it does not purport to do so, and when it does not appear which instruction influenced the verdict of the jury on the first issue.</p> <p>3. Insurance — Fraud and Deceit — Evidence Sufficient.</p> <p>The evidence in this case upon the question of whether the insured was induced by the defendant insurance company to take the policy by fraud and deceit. J-Ield, sufficient to go to the jury. (Whitehurst v. Insurance Co., 149 N. 0., 273, and other cases upon the sufficiency of such evidence, cited and approved.)</p>

, Spring Term, 1909, of Bertie. Civil action, tried upon admissions in pleadings and facts agreed.

Tbe plaintiff sued tbe defendant in tbe Superior Court to recover $120 damages to forty-three crates of strawberries, and alleged: “4.

Ii. Allen, J., November Term, 1908, of Cba-VEN. The plaintiff, being a stockholder of the New Bern Lighting and Fuel Company, hereinafter called the gas company, a corporation, instituted this action in behalf of himself and all creditors of the corporation, alleging the insolvency of the defendant corporation. Upon the demand of the plaintiff, a receiver was appointed to wind up its affairs.

, November Term, 1908, of Caldwell. Civil action to restrain tbe collection of a tax alleged to be illegal, a jury trial having been formally waived by tbe parties.

, April Term, 1909, of CeaveN. Civil action to recover damages for personal injury received by plaintiff while working in defendant’s mill. Tbe usual issues of negligence, contributory negligence and damage were submitted. From a verdict and judgment for plaintiff tbe defendant appealed.

II. Allen, J., February Term, 1909, of Wil-SON. The plaintiff sued the defendant, before a justice of the peace, upon two causes of action, to-wit: (1) for $40 due by note; (2) for $67.50, an overpayment on a note of $175. The justice gave judgment in favor of plaintiff on the note of $40, from which judgment plaintiff appealed.

<p>1. Deeds and Conveyances — Reformation — Evidence Sufficient — Questions for Jury.</p> <p>Tbe evidence to reform a written deed must be clear, strong and convincing, but when the testimony is sufficient to carry the ease to the jury, as on an ordinary issue, the-judge can only lay this down as a proper rule to guide the jury in their deliberations and it is for them to determine whether in a given case the testimony meets the requirements of this rule as to the degree of proof.</p> <p>2. Same — Positive Fraud.</p> <p>A grantor who can read and write, by' merely signing a deed, is not necessarily, concluded from showing that, as between the original parties, it was induced by a positive act of fraud on the part of the grantee, and that he was deceived and thrown off his guard by the grantee’s false statements and assurances designedly made at the time, and reasonably relied on by him.</p> <p>3. Same.</p> <p>Evidence is sufficient to go to the jury, in an action to reform a deed alleged to have been procured by fraud, tending to show that grantee and others went, about dark, to the house where grantor was and requested him to sign it, which he did without reading upon their representation that the description only covered a certain part of his lands, that it was a plain deed and such as they had previously agreed upon; that they urged his signature at once, stating they were in a hurry to leave; that he then signed it upon the assurance of one of them, in whom he had confidence, that the deed was as represented; and that in fact the deed conveyed more land than agreed upon.</p>

<p>Appeal by defendants from Peebles, J., May Term, 1909, of Beaueobt.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Contracts, Written — Contemporaneous Agreement — Breach—Issues.</p> <p>In an action for breach of a written contract of sales rights for certain machines, wherein plaintiff claimed damages arising from the alleged fraudulent negotiation of certain notes he had given therefor in violation of the terms of a contemporaneous oral agreement that they were not to be binding until defendant’s fulfillment of certain conditions, issues were submitted, 'without objection, determinative only of the question of the violation of the oral agreement, and not of the fraudulent negotiation of the notes. I-Tcld, that upon the issues as submitted and in the absence of evidence of substantial damage, the plaintiff was entitled to nominal damage only.</p>

, Spring Term. 1909..of OaeteREt. From a judgment of nonsuit tbe plaintiff appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court.

<p>Contracts — Debt of Another — Consideration — Independent Agreement.</p> <p>A promise to the landlord made by one advancing supplies to the tenant, under a mortgage, that if the landlord would wait until the tenant finished selling the crop the promisor would give him his note for the tenant’s rent payable the next fall, is an independent contract between the landlord and one furnishing the supplies, and not barred by the statute of frauds. The question whether the landlord in this case has lost his lien by not following the remedy provided under the Virginia statute, does not arise.</p>

B. Allen, J., March Term, 1909, of LeNOIR. Civil action, to 'recover damages for personal injury, beard upon demurrer by bis Honor, W. B. Allen, Judge, at Lenoir Superior Court. Tbe plaintiffs appealed from a judgment sustaining the demurrer.

, February Term, 1909, of BunCOMBE. Civil action, beard on demurrer to complaint.

II. Allen, J., March Term, 1909, of Nash. Civil action, to recover damages-for an injury sustained by plaintiff from falling in a bole in defendant’s cotton platform at Springbope. These issues were submitted to the jury: 1. “Was plaintiff injured by the negligence of defendant?” Answer: “Yes.” 2. “What damage is plaintiff entitled to recover?” Answer: “Two thousand five hundred dollars.” From the judgment rendered the defendant appealed.

<p>Appeal by defendants from W. B. Allen, J., June Term, 1909, of LeNOIR.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Appeai, by plaintiff from 0. Ii. Allen, J., March Term, 1909, of MaRtiN, in. an action originating in a court of a justice of the peace.</p>

Tbo plaintiff, after averring tbe death of Josiah Freeman, intestate, and tbe qualification of defendant Brown as bis administrator, alleges that tbe plaintiff is a son of tbe intestate, who, for many years prior to his death, was in feeble health and unable to care for himself; that he (the plaintiff) lived with his father, at his request, from the timé he became of age, in 1887, to 1907; that his father promised him that if he would live with him and care for him and look…

<p>Appeal by defendants W. A. Strickland and J. M. Stallings from O. H. Allen, J., April Term, 1909, of FbaNKLIN.</p> <p>This is a motion to set aside tbe judgment of tbe Superior Court in tbe above-entitled action, wbicb was brought for tbe purpose of selling land to pay tbe debts of tbe testatrix, Martba Moore. Sbe died, leaving a will, in wbicb sbe appointed tbe defendants W. A. and J. 0. Moore executors. Tbe motion to set aside tbe judgment was made by Mabel, Annie and Josbua Moore, children of J. W. Moore and Frances Strickland; Mary Stallings and Sidney Harris, children of Sarah E. Harris. By her will tbe testatrix devised certain lands to her son, J. W. Moore, for -bis natural life, and then to bis bodily heirs, share and share alike, and an undivided one-third interest in other land sbe devised to her daughter, Sarah E. Harris, wife of S. A. Harris, in fee. There is a provision for equality in tbe division of her estate, real and personal, among her children, but it is not necessary, for the purpose of deciding tbe case, to set it out. Tbe testatrix died in 1874, and in 1879 R. F. and W. H. Yar-borough, the plaintiffs in this action, recovered judgment against her executors for tbe sum of $871.52, with interest and costs, wbicb judgment was later assigned to tbe Wachovia National Bank. This action was commenced in October, 1883, against tbe executors and devisees, under the will, to sell tbe lands of tbe testatrix for tbe payment of her debts and liabilities, tbe personal estate having been exhausted. The court ordered a sale of tbe land at tbe Fall Term, 1884; tbe sale was made 2 March, 1885; tbe commissioner made his report to the court, and at November Term, 1885, tbe sale was in all respects confirmed and title ordered to be made to the purchasers, upon payment of tbe purchase money, except as to certain tracts allotted to Sarah Harris and others, wbicb were ordered to be resold. Tbe commissioner, in obedience to this order, sold said lands and reported tbe sale to tbe May Term, 1886, of tbe Superior Court, and at January Term, 1888, bis report was confirmed as of May Term, 1886, with directions to make title to tbe purchasers, tbe purchase money having been paid. Final judgment was entered in 1891.</p> <p>His Honor, Judge O. H. Allen, found the facts from tbe evidence before him, and it appears from bis findings that the only controversy relates to the land devised to J. W. Moore and Sarah E. Harris. It appears therefrom that there was no service of tbe summons upon J. W. Moore, who bad not married and did .not marry until ten years after the final judgment in this action. At Ms own request, he was permitted by the court to come in and make himself a party to the action, bought a part of the land at the sale under the order of the court, was served with sundry notices in the cause, as purchaser, and accepted .a deed from the commissioner for the land bought by him. The said John W. Moore had three children by Ms marriage, namely, Mabel Moore, Annie Moore and Joshua Moore, who were, of course, not parties to this action, and who now move to set aside the judgment.</p> <p>As to the interest of Sarah E. Harris, it appears from the findings of fact that she was living at the time of her mother’s death, but died before this suit was commenced, and her interest descended to her children, Frances Strickland, Mary Stallings and Sidney Harris, subject to the estate by the courtesy of A. S. Harris, husband of Sarah Harris, who survived her. Frances Strickland was of full age when this suit was commenced. Mary Stallings is now about forty-one years old, and Sidney Harris was under fourteen years of age at the time the suit was commenced. The motion to set aside the judgment was made by the heirs of J. W. Moore and the heirs of Sarah Harris. It appears that guardians ad litem were appointed by the court for all the infants, and filed answers to the petition for the sale of the land. It does not appear that any copy of the summons was delivered to the infant under fourteen years of age, or “to his father, mother or guardian, or to any person having the care and control of Mm, or with whom he resided, or in whose service he was employed.” Revisal, sec. 440, subsec. 2.</p> <p>The court further finds that the proceeding throughout was fairly and honestly conducted; that the persons now moving to set aside the judgment were not prejudiced thereby, as they had no real or meritorious defense thereto; that the persons who have bought the land are innocent purchasers, having purchased for full value and without notice of any defects or irregularities, and that the motion to vacate the judgment was not made within a reasonable time, it having been made about eighteen years after the final judgment in the cause.</p> <p>The court thereupon denied the motion and entered judgment for costs against those by whom it was made. They excepted and appealed.</p>

H. Allen, J., March Term, 1909, of Edgecombe. On the hearing it appeared that in February, 1907, Lam Lawrence, an heir at law of Janies Lawrence, deceased, filed a petition against numerous other persons, cousins in different degrees, heirs at law of said James Lawrence, for sale of the lands of said James Lawrence situate in said county, and that all the heirs at law of J ames Lawrence who were known were made parties defendant by service and acceptance of jirocess.

<p>1. Appeal and Error — Agreement of Time to Serve Case — How Computed — Sunday.</p> <p>In computing the time wherein a case on appeal may be served under an agreement, when, by excluding the first, the last day falls on Sunday, service on the next succeeding day is sufficient. Clark’s Code, sec. 596.</p> <p>2. Issues — Misapplication of Funds — Consent—Instructions.</p> <p>Upon an issue as to whether the defendant fraudulently applied the plaintiff’s money to his own use, the defense being that the money was used with the plaintiff’s consent, the question presented was whether the defendant had reasonable grounds to believe from his intercourse with plaintiff that it had been so agreed; and it was not error for the trial judge to omit to charge as to whether the plaintiff assented to this use of the money by defendant, either expressly or impliedly, as such would tend to confuse the true meaning of the issue.</p>

<p>1. Sales, Judicial — Advance Bids — Trial Judge — Discretion.</p> <p>The refusal of the trial judge to set aside a judicial sale of land upon an advance bid, is discretionary with him, and not reviewable on appeal, *'</p> <p>2. Same — Laches.</p> <p>An advance bid over that obtained at a judicial sale of lands should be made in apt time, which is held to be at the term next ensuing the sale; and in this case the refusal of the trial judge to reopen the sale upon an advance bid of forty per cent, made before the confirmation, but fourteen years after the sale, is not reviewable on appeal.</p>

<p>1. Process — Service—Misnomer of Defendant — Procedure—Plea in Abatement.</p> <p>A mere misnomer of the defendant in failing to serve summons on it as the “Supreme Lodge,” etc., when, in fact, the summons was served on the proper officer, is hot a ground for dismissal; the proper procedure is a plea in abatement wherein the correct name could be supplied and the, pleadings amended to conform.</p> <p>2. Process — Service — Misnomer of Defendant — Misjoinder of Causes — Procedure.</p> <p>In this case there was no misjoinder of causes of action; but, if otherwise, the remedy was by motion to divide the action, Revisa!, 476, the defendant being already in court and having received notice by the summons and complaint.</p> <p>3. Pleadings — Benevolent Societies — Rejection of Member — Cause of Action.</p> <p>The complaint alleging that plaintiff had been elected a member of defendant society by ballot, but that, subsequently, misled by false statements to his prejudice, made'by one of its directors, it rescinded its action to his humiliation and damage, states no cause of action, it appearing that the director acted in the line of his duty.</p> <p>4. Benevolent Societies — Rejection of Member — Certificate — Contracts.</p> <p>A complaint alleging that defendant society elected him a member and then rescinded its action before issuing him a certificate of membership, fails to set out a contract for the breach of which damages may be recovered.</p>

<p>Witnesses — Fees—Costs.</p> <p>Witness fees may not be taxed in the cost against an unsuccessful litigant, though the witnesses. were subpcenaed, when they were not examined or tendered, or, if the witnesses did not attend the trial, having a legally sufficient excuse, it is not shown that their evidence was material. Nor can fees be taxed when it only appears that the failure of the witness to attend was inexcusable.</p>

<p>Appeal by defendant from Lyon, J., March Term of John-STON.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>1. Partnerships — Contracts—Scope of Authority — Warranty.</p> <p>During tlie continuance of a partnership for building purposes, a warranty of material and construction given by one partner for the purpose of obtaining a payment from the owner after the completion of a house contracted for by the partnership, is within the scope of the power of the partnership relations-; and in the absence of bad faith by the partner giving it, or notice thereof by the owner, it is binding upon the other partner.</p> <p>2. Same — Innocent Third Persons.</p> <p>A misnamed “guaranty • contract” given by one partner in the scope of his partnership authority, without the knowledge of the other, being in effect but a continuance of a warranty of material and construction after the completion of a house contracted to be built by the partnership, is binding upon such other partner as against the rights of the owner, though it may have been improvidently made and entailed a loss on the partnership.</p>

II. Allen, J., May Term, 1909, of VaNCE. The plaintiff sued the defendant before a justice of the peace on the following due bill: “HeNdeksoN, N. C., 4 December, 1908. “Due R. B. Woodson $92.92 (ninety-two dollars 92-100) on a policy of life insurance applied for this day in the Equitable Life, said $92.92 to be paid when policy is delivered.

R. Allen, J., April Term, 1909, of SamtpsoN. These issues were submitted, by consent: 1. “Where is the dividing line between plaintiff .and defendant ?” Answer: “The true line between plaintiff and defendant is twelve inches on the side next to defendant from the southeast wall of plaintiff, above the ground, along.the whole course of the wall.” 2. “Is the plaintiff the-owner of the lands in controversy?” Answer: “Yes.” 3. “If so, are defendants in wrongful possession…

, February Term, 1909, of Ceaveh. Civil action, in the nature of a creditor’s bill, against .J. H. Weddell, administrator of F. Ulrich and the surety on his administration bond. Yerdict and judgment for defendant, and plaintiffs excepted and appealed.

<p>1. Evidence — Demurrer — Ruling Reserved — Sustained — Instructions — Harmless Error.</p> <p>It is not improper for tbe trial judge to reserve Ms ruling on tbe evidence upon matters set out in a certain section of tbe complaint and to sustain the demurrer when the evidence is all in if it appears that be should have done so. His instructions to the jury to exclude such evidence from their consideration would cure the error, if any committed therein.</p> <p>2. Carriers of Passengers — Protection — Assault — Evidence — Res Gestse.</p> <p>In an action to recover damages of a railroad company for injuries plaintiff received while a passenger on defendant’s excursion train by reason of defendant’s failure when notified to properly protect him from the assault of a fellow passenger, a man of dangerous character, pertinent evidence of what was said at the time of assault, by the one assaulting, to plaintiff and another passenger, is competent as a part of the res gestae.</p> <p>3. Carriers of Passengers — Protection — Assault — Avoidance — Evidence, Corroborative.</p> <p>In an action to recover damages of defendant railroad company for injuries received in an assault by another passenger, arising from defendant’s alleged negligence in failing or refusing to afford plaintiff proper protection, it • appeared that there was evidence that plaintiff went into a “reserved seat” car to avoid the difficulty, and the conductor was informed of the fact and refused the protection therein reguested. Held, it was competent for plaintiff to testify his reason for going into this car in corroboration of the witness who testified that he notified the conductor of the fact.</p> <p>4. Carriers of Passengers — Measure of Damages — Instructions Distinctive.</p> <p>A charge to the jury, upon the measure of damages, that the Xilaintiff is entitled to recover on account of injuries received in an assault made on him by another passenger, alleged to have arisen from defendant’s failure or refusal to afford him proper protection, on its passenger train, that the jury could include such physical pain and mental suffering as was the proximate, immediate and necessary consequence of the assault, is not prejudicial on the question of mental suffering claimed on account of plaintiff’s having been compelled to kill his assailant, when evidence on that point had been excluded and the jury instructed not to consider that phase of the case.</p> <p>5. Pleadings — Variance—Amendments.</p> <p>There is no error in the trial judge allowing amendments to the pleadings so as to make them conform to the proof. Revisal, 507.</p>

Appeal by plaintiff from W. B. Allen, J., June Term, 1909, of SAMPSON.

<p>Eor digest, see same case, next above.</p>

J. Adams, J., February Term, 1909, of Cu*r-BERLAND. It appeared in evidence that, on or about 28 May, 1904, the plaintiff, with other hands, was engaged in constructing a depot for defendant company at Nocatee, in De Soto County, Florida, either directly or under a contractor employed for the purpose; that the old depot building, situate near the new one, was a structure placed on pillars several feet above the ground, and the workmen employed and engaged as , aforesaid kept…

<p>Appeal from W. B. Allen, J., May Term, 1909, of New HaN-ovek.</p> <p>Tbis is a proceeding for partition, instituted before tbe Clerk of tbe Superior Court of New Hanover County and, upon issues being raised on tbe pleadings, transferred by bim to tbe Superior Court.</p> <p>Tbe plaintiff alleged tbat Arnold Walker, a slave, died in 1864, seized and possessed of tbe land sought to be partitioned, leaving as bis beirs at law tbe plaintiffs and defendants, whose several interests are set forth, and demanding a sale for partition. Tbe defendants denied all tbe material allegations of tbe petition; pleaded sole seizin and title by open and adverse. possession for more tban twenty years; denied tbat plaintiffs were either tbe beirs at law or children of Arnold Walker; denied tbat tbe re-’ lationsbip of husband and wife existed between said Arnold and Clara Hoskins, tbe ancestors of plaintiffs; and denied tbat Arnold, being a slave, was capable of owning land. His Honor submitted tbe following issues to tbe jury :</p> <p>1. Were Charles, Emma and Sophie children of Arnold and Clara ?</p> <p>2. If so, were Arnold Walker and Clara living together.as man and wife at tbe time of tbe birth of said children ?</p> <p>3. Have tbe defendants been in tbe adverse possession of tbe land in controversy for twenty years prior to tbe commencement of this action?</p> <p>Tbe jury answered tbe first issue “No,” and, under bis Honor’s instructions, did not answer tbe other issues. His Honor rendered judgment for defendants and against plaintiffs, adjudging they were not tenants in common with defendants, and for costs. Tbe plaintiffs appealed.</p>

<p>1. Lands — Contract to Convey — Insufficient Deed — Tender of Sufficient Deed, When in Time.</p> <p>In actions where the remedy by specific performance is indicated, if the vendor of lands can make a good and sufficient title at any time before final decree, it is sufficient; and when the vendee, having made a partial payment on the purchase price, finds that the vendor’s wife is not of age, and refuses to accept deed on that account, and brings suit to recover the partial payment he had made, a tender by defendant and his wife, the latter then being of age, of a good and sufficient deed, during the course of the proceedings will be held a sufficient compliance with the contract.</p> <p>2. Same — Agreement to Rescind — Evidence—Questions for Jury.</p> <p>In an action to recover a partial payment made on an execu-tory contract for the sale of lands, the deed being refused by the vendee on discovering that vendor’s wife, signing the deed, was not of age, and thereafter pending the proceedings, vendee refused to accept a good and sufficient deed from the vendor and his wife, the latter then being of age, it is competent to show that by parol or by matter in pads, the parties had agreed to rescind the contract, and under conflicting evidence the question thus raised should have been submitted to the ,iury.</p> <p>3. Lands — Contract to Convey — Agreement to Rescind — Purchase Price — Agreement Implied.</p> <p>When parties to a contract to convey lands mutually agree to rescind the same, in the absence o£ any stipulation to the contrary the law implies a promise to repay such amounts as may have been paid by the vendee on the purchase money.</p>

Appeal by plaintiff from 0. II. Alien, J., May Term, 1909, of YaNCe. (PLAINTIEE’s appeal.) This was a controversy without action.

<p>1. Marriage and Divorce — A Mensa — Wife’s Separate Property— ' Improvements by Husband — Equity.</p> <p>A husband, from whom a decree of divorce a mensa et thoro lias been obtained by bis wife, because of Ms misconduct, cannot assert any equitable right or claim for improvements made by him and with his money, on lands conveyed by her to a trustee in trust for her separate use and enjoyment, in contemplation of the marriage, without request or inducement on her part. The decree is the result of his own acts, the imxirovements were made without suggestion of fraud or inducement on the part of the wife, and forms no basis for any equitable relief in his favor.</p> <p>2. Marriage and Divorce — A Mensa — Wife’s Separate Property— Trusts and Trustees — Contingent Interests.</p> <p>It appearing that a wife, in contemplation of marriage, executed a deed in trust for her use and benefit providing a certain contingent estate, between herself - and husband, which may be defeated by the happening of an event upon which it was made to' depend; and that a decree for divorce' a mensa et thoro; was. obtained by her on the ground of the misconduct of the husband, the courts will not pass upon the contingent interests as the question may never arise. The possibility of condonation and resumption of the marriage relation is recognized by statute. Revisal, 2111.</p>

Appeal by plaintiff from Lyon', J., April Term, 1909, of Wake. Civil action,, beard upon demurrer to tbe complaint. Tbe court sustained tbe demurrer and dismissed tbe action. Plaintiffs appealed. Tbe facts are stated in tbe opinion.

B. Allen, J., May Term, 1909, of New HaN-OVER. Tbe court ordered that an issue be submitted to. the jury to determine whether the claim of certain petitioning creditors arose by reason of work and labor done within sixty days next before proceedings of insolvency-were instituted against defendant company. From this order plaintiffs excepted and appealed. The facts are stated in the opinion.

AotioN for injunction, beard on return to preliminary restraining order, before W. B. Allen, J., at chambers. The restraining order was continued to the hearing, and the defendant excepted and appealed. The facts are stated in the opinion.

B. Allen, J., May Term, 1909, of New HaN-oveb. Motion to discharge attachment and dismiss an action.

<p>1. Railroads — Lights and Signals — Negligence.</p> <p>When it is alleged and proven to the jury under conflicting evidence, that plaintiff’s intestate was run over and killed by defendant’s work train, without lights or signals, when he was endeavoring to go over the railroad at a public crossing, the defendant is liable in damages for its negligent act, in the absence of evidence of contributory negligence of plaintiff.</p> <p>2. Same — Contributory Negligence — Nonsuit.</p> <p>In an action to recover damages from a railroad company for the alleged negligent killing of plaintiff’s intestate by running a train, without lights or signals, over him at a public crossing at night, the contributory negligence of intestate will bar recovery when it appears that he both saw and heard the engine coming and attempted to run across the.track in front of it, and thus received the fatal injury.</p>

Appeal by plaintiffs from tbe refusal of 0. H. Allen, J., to grant their motion for an injunction and receiver, in an action pending in Edgecombe and heard during the March Term, 1909, of the court. The court, being of opinion “that it had no jurisdiction of that part of said action, in which it is sought to set aside the will of Mrs. Charlotte A. Knight for alleged fraud,” etc., denied the motion for injunction and receiver. The plaintiff excepted and appealed.

<p>1. Carriers of Passengers — Baggage—Larceny—Liability—Insurers.</p> <p>When there is no partnership arrangements between connecting lines of railroads, and a passenger buys a through ticket from a carrier to his destination on a connecting line, checks his trunk through to his destination and voluntarily returns to the starting point without going upon the road, of the connecting lines, the latter carrier is not liable as insurer of the contents of the trunk from larceny by reason of taking tbe trunk to its destination, storing it there in its baggage room until its return was requested and then forwarding it to tbe junctional point, without compensation.</p> <p>2. Same — Warehousemen — Consideration — Gratuitous Bailee — Gross Negligence — Evidence.</p> <p>Nor is the connecting line liable under 'such circumstances as a warehouseman by. reason of having stored the trunk at the destination in its baggage room, but only as- a gratuitous bailee, for gross -negligence; and the burden being upon plaintiff to show negligence, he cannot recover the value of the stolen articles in his suit against the connecting carrier, there being no evidence that the carrier was negligent under the facts appearing.</p> <p>3. Same — Interpretation of Statutes.</p> <p>Carriers are made liable under the statute (Revisal, sec. 2624) for baggage of passengers “from whom they have received fare,” etc., and they are also required under the statute (Revisal, sec. 2027) to redeem the unused part of the ticket in the manner therein prescribed; and a- connecting line which receives the trunk of a passenger checked through under a ticket bought from the initial carrier, with which it has no partnership agreement, and carries it to its destination, places it in its baggage room, not knowing that the passenger voluntarily did not take its train,. and returns it upon request of the passenger, is merely a gratuitous bailee, having performed the service without consideration.</p>

<p>Counties — Dividing -Streams — Bridges—Cost Apportioned.</p> <p>Under tlie provisions of Revisal, 1318, subsec. 29, each county shall defray the charge of building bridges across a stream dividing them “in proportion to the number of taxable poles in each,” and a statute providing that the divisional line shall run up the “middle of the stream” (river) in question and that said.line shall be “surveyed and marked,” does' not vary the rule of appor: tioning the expenses of such bridges between the counties from that prescribed by said section. Under the facts of this case Revisal, 2696, is inapplicable.</p>

B. Allan, J., May Term, 1909, of Sajvípson. Tbe plaintiff sued to recover tbe value of a large amount of lumber wliicb was alleged to bave been destroyed by fire negligently communicated to it by an engine operated by tbe defendant on its branch line between Clinton and Warsaw, N. C. Tbe defendant denied tbe negligent acts alleged against it. Tbe particular negligence of tbe defendant alleged was tbe defective condition of tbe spark arrester on its engine.

<p>Appeal by defendants from Lyon, J., April Term, 1909, of Wake.</p> <p>Tbe facts are stated in tbe opinion of tbe Court.</p>

Tbe action was brought to recover damages for injuries alleged to have been sustained in a wreck on defendant’s road. The defendant pleaded a release, and -in reply the plaintiff, upon the facts stated in his replication, prayed relief that the release- he declared void. The wreck occurred 9 September, 1904. The release was executed 9 October, 1905, and tbis action was commenced 24 June, 1907.

H. Allen, J., June Term, 1909, of Edge-combe. Civil action, beard as on demurrer to tbe answer.

H. Guión, J., June Term, 1909, of Vareen. Civil action, beard on exception to referee’s report. From a judgment modifying tbe report, some of tlie unsecured creditors, having excepted, appealed. The facts are stated in the opinion of the Court.

Appeal by plaintiffs from O. H. Allen, J., May Term, 1909, of Sampsou. This action is to recover the sum of $201, the alleged value of a mule, killed while being- transported from Kansas City by defendant. From the judgment rendered the plaintiff appealed. The' facts are stated in the opinion of the Court.

Appeal by defendants from Lyon, J., April Term, 1909, of Wake. This is a civil action, brought by plaintiff to set aside a deed. The action had been referred to lion. Thomas B. Womack as referee. Exceptions were filed to his report by the defendant. Iiis Honor overruled the exceptions and confirmed the report. Defendant appealed. The facts are stated in the opinion of the Court.

<p>1. Appeal and Error — Grouping Exceptions, Etc., Relied On — Rule of Court — Appeal Dismissed.</p> <p>Where there is a failure of the appellant to group, number and assign in an orderly manner the exceptions taken during the course of the trial, as required by the rule of the Supreme Court, the appeal will be dismissed. The Supreme Court in this ease, as required by the statute, examined the record and found no error therein.</p> <p>2. Same — Nonsuit—Another Action.</p> <p>When it appears that the appellant, the plaintiff in the lower court, lias been nonsuited, and the merits of the case have not been passed upon by any conclusive ruling of that court, he may again bring his action after his appeal has been dismissed for his failure to comply with the 'rules of this Court to group, number and assign the exceptions taken upon the trial.</p>

<p>Partnership — Duplicated Agreement — Annulment of Partnership— Fraud — Innocent Persons.</p> <p>One who has entered into a partnership with another, expressed the agreement in duplicated and signed writings, and then agreed to annul the partnership, leaving the duplicate agreement in the hands of the other party, is liable to a stranger who is thereafter fraudulently induced by the other partner to lend money, in good faith, upon exhibition of the duplicate partnership agreement, within the period of its stated duration, and for purposes within its expressed scope. He has put it within the power of the other partner to commit the fraud, and should suffer loss rather than an innocent stranger who has advanced the money in good faith.</p>

Appeal by plaintiff from Long, J., March Term, 1909, of DURHAM. Civil action, brought by the plaintiff, as trustee of Margaret G. Arnold, to recover of the defendant the value of a certain dividend collected by him for the Durham Cotton Mill Company. The facts are fully stated in the ojiinion of t,he Court. At- conclusion of plaintiff’s evidence a motion to nonsuit was allowed, and plaintiff appealed. .

, March Term, 1909, of Durham. Motion in the cause. His Honor denied the motion to set aside an award made by arbitrators, and gave judgment against respondents, J. W. Smith and S. P. Mason, who appealed. The facts are stated in the opinion of the Court.

<p>Issues — Technical Error — Verdict—Harmless Error.</p> <p>This ease-was properly submitted to the jury upon conflicting evidence and under proper instructions; and while there was technical error committed as to one issue, it was' cured in the manner in which the jury, answered it.</p>

<p>1. Justice’s Court — Judgments — Appeal,— Docketing — Laches of Justice — Principal and Agent.</p> <p>A motion in the Superior Court for a reeordari or an attachment under Revisal, 1493, is the remedy given an appellant for the failure of the justice to send up an appeal, and it is no legal excuse for the appellant to show that he had paid to the justice his fees and those of the clerk, and that the justice had failed to docket it as required by the statutes. The appellant would thus make the justice his agent and for his neglect he would be responsible.</p> <p>2. Justice’s Court — Appeal—Docketing—Judgment—Laches—Void Appeal.</p> <p>An appeal from a judgment of a justice of the peace must be docketed at the next ensuing term of the Superior Court commencing ten days after the notice of appeal, and an attempted docketing at a later term is a nullity. Revisal, 307-8.</p>

<p>Appeal by defendants from W. R. Allen, J., April Term, 1909, of SampsoN.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>1. Cities and Towns — Negligence—Subsequent Repairs — Evidence Contradictory.</p> <p>I n an action for damages alleged to have been caused by plaintiff's borse stepping into a bole in tbe street negligently left there by defendant town, it is competent for plaintiff to show that tbe bole bad been filled after the accident to contradict tbe defendant’s evidence tending to show it bad been filled before tbe .accident : though incompetent to show negligence by tbe mere fact of subsequent repairs.</p> <p>2. Cities and Towns — Negligence—Subsequent Repairs — Evidence Corroborative.</p> <p>When plaintiff seeks to recover damages of a town for its alleged negligently leaving a hole in the streets which caused the injury complained of, and the defendant has introduced evidence tending to show that it had theretofore filled the hole, it is competent for plaintiff to show that the hole was afterwards filled as corroborative of her evidence of the existence of the hole at the . time and place.</p> <p>3. Evidence — Restrictive—Exceptions—Appeal and Error.</p> <p>When evidence is competent for some purpose, its general admission is not reversible error unless the appellant asks at the time of the admission that it be restricted.</p> <p>4. Instructions — Appeal and Error — Presumption.</p> <p>When nothing to the contrary appears of record on appeal, the presumption is that the lower court gave correct instructions to the .jury.</p> <p>5. Negligence — Permanent Damages.</p> <p>In this case the court properly permitted the jury to assess permanent damages to plaintiff, under the evidence, for injury received by reason of her horse stepping into a hole left by defendant upon its street.</p>

<p>Appeal by defendant from Long, J., August Term, 1907, of Guilford.</p>

Appeal by plaintiff from Long, J., July Term, 1909, of Rah-nOLPH. Civil action, commenced before a justice of the peace. There was a verdict for the defendant and a judgment thereon, from which plaintiff ajipealed.

Appeal by plaintiff from Cooke, J., Spring Term, 1909, of Pamlico.

, May Term, 1909, of OraNge. Civil action for personal injury. These issues were submitted to the jury: 1. “Was tlie plaintiff injured by the negligence of the defendant, as alleged in the complaint?” .

Appeal by plaintiff from W. J. Adams, JAugust Term, 1909, of UNION. The plaintiff brought three actions against the defendant, before a justice of the peace, upon two notes, less than $200 each, and upon an open account, the three demands, amounting to $491.36, exclusive of interest.

<p>Appeal by defendant from Moore, J., February Term, 1908, of Guilford.</p> <p>The plaintiff sued the defendant to recover damages for injuries received by him while on business in the store owned by the female defendant, B. Stadiem, from a pistol-sliot wound inflicted by tbe twelve-year-old son and an employee of tlie defendants, while carelessly handling the pistol. The defendant denied all the allegations of the complaint, and the matters at issue were presented to the jury in two issues, to-wit:</p> <p>1. “Was the plaintiff injured by the negligence of the defendant, as alleged?”</p> <p>2. “What amount of damages, if any, is the plaintiff entitled to recover ?”</p> <p>The jury having responded to the first issue “Yes,” and to the second issue “$350,” judgment was rendered against the defendants, from which they appealed to this Court.</p>

<p>1. Contracts of Consignment — Indefinite Duration — Termination at Will.</p> <p>A contract for consignment of goods without fixing a date for its duration is terminable at the will of either party.</p> <p>2. Same — Notification.</p> <p>When, under the terms of a contract for consignment of goods, it is provided that if the defendants keep the goods for eight months they were to purchase at a stipulated price, there is a failure of mutual agreement of sale upon the notification by the consignee within the eight months’ period that he would not keep the goods.</p> <p>3. Same — Plaintiff’s Liability — Measure of Damages.</p> <p>When plaintiff has consigned goods to defendants under an ' agreement terminable at will, and therefore fails in his suit to recover the price of the goods in his action for goods sold and delivered, he is liable to defendant for storage of the goods after being notified of the termination, for freight paid by him, and for necessary repairs made.</p>

B. Jones, /.«April Term, 1909, of Davidson. Civil action, to determine tlie relative liabilities of sureties, by reason of a judgment on the official bond of their principal, a former sheriff of Davidson County. From the judgment of the court, H. C. Grubb, one of the sureties, having excepted, appealed.

, February Term, 1909, of ObaveN. Cause tried and determined on issues submitted. A very correct statement of all preliminary proceedings appears in tbe case on appeal settled by tbe court, as follows: “This was a proceeding begun by tbe city of New Bern to open and extend Pollock Street from Queen to End Street, in said city, under tbe provisions of its charter (chapter 82, section 53, Private Laws 1899).

Appeal by defendant from Jones, J., August Term, 1909, of SURRY. The following issues were submitted by his Honor to the jury, and responded to by them as set out: 1. “Was plaintiff'injured by the negligence of defendant, as alleged in the complaint ?” Answer: “Yes.” 2. “What damage, if any, has plaintiff sustained ?” Answer: “Seven hundred and fifty dollars.” From the judgment rendered upon the verdict the defendant appealed to this Court.

, August Term, 1909, of RowaN. Cause beard on demurrers to complaint. There was judgment overruling the demurrers, and defendants excepted and appealed. The facts are stated in the opinion of the Court.

, April Term, 1909, of Guilford. Civil action, to recover damages for tbe negligent killing of Joseph Reeves. Tbe three issues of negligence, contributory negligence and damage were submitted to tbe jury, and answered by them in favor of tbe plaintiff. From tbe judgment rendered, tbe defendant appealed. Tbe facts are stated in tbe opinion of tbe Court.

B. Jones, J., September Term, 1909, of Foe-syth. Appeal by certain defendants, other than Farrow. The action was brought by J. E. Alexander, assignee and trustee of the K. Howard-Fiteh Company, a corporation, against the creditors of the corporation, to have determined the priority of their claims in the distribution of its assets.

, May Term, 1909, of Eoesyth. Tbe plaintiff corporation sued tbe defendants, as partners, to recover an amount due it for goods sold and delivered. Tbe defendant T. J. Renfrow alone, answered and contested tbe plaintiff’s right to recover against bim.

<p>1. Appeal and Error — Procedure—Recordari—Appellant’s Laches.</p> <p>It is no sufficient excuse for tbe failure of tbe appellant to bave bis appeal docketed and ready for argument upon tbe calling of bis district under Supreme Court Rules 5, 17, 30 and 24, that the judge bad tbe original papers and bad not settled tbe case on appeal, when it appears that be was in default in not requesting the judge to fix a time and place therefor until forty days after appellee had returnéd his case with objections.</p> <p>2. Same — Case on Appeal — Appeal Dismissed.</p> <p>The Eevisal, 591, makes appellee’s case the case on appeal after fifteen days’ delay by appellant to transmit papers to the judge. Appellant’s motion for a recordwri under such circumstances will be denied and appellee’s motion to dismiss granted.</p>

<p>1. Railroads — Deeds and Conveyances — Easement, Reservation of— Fee.</p> <p>A provision in a deed of lands to a railroad company for depot purposes, that tbe grantor should have the right to erect a warehouse partly on the lands described and conveyed, provided a width of 115 feet be left to the railroad company, reserves to the grantor a descendable, assignable and transferable easement therein for the stipulated purpose and to the extent specified in the deed.</p> <p>2. Same — Words of Inheritance.</p> <p>An easement in fee in lands reserved by the owner in his deed thereto, does not require the use of the words of inheritance, for the thing excepted is not granted and the grantor retains it by virtue of his original title.</p> <p>3. Same — Statute.</p> <p>Under the Code of 1883, see. 1280, a reservation by the grantor in his deed of an easement in the lands conveyed will be construed to be an easement in the fee unless the contrary intent appears from the conveyance.</p> <p>4. Same — Determinable Fee — Rights Appurtenant — Permissive User.</p> <p>A stipulation in a deed of land to a railroad company for depot purposes was that the grantor shall have the right to erect warehouses along certain sides of the lands, provided they do not encroach upon any portion of the depot ground of the width of 115 feet, and in accordance with such right the grantor erected a warehouse partly on his own land and extending upon the lands conveyed a distance of twenty-three feet, which was occupied continuously as such since its erection by the grantor, his heirs and assigns. Held, (1) whether by way of reservation or exception, the grantor retained for warehouse purposes, a determinable fee in the land conveyed to the extent of the twenty-three feet; -(2) that this right was appurtenant to the land covered by the other part of the warehouse; (3) that the question of whether a permissive user of a railroad right-of-way would ripen title to the easement reserved did not arise.</p>

, August Term, 1909, of BkuNswick: This proceeding was instituted before the clerk for probate in solemn form of the nuncupative will of Susan Thomas Kennedy. On appeal,' his Honor, at the close of the propounder’s evidence, held that the evidence was not sufficient in law to establish a nuncupative will, and entered judgment that it was not entitled to be probated and recorded. Appeal by propounder.

Appeal by plaintiff from Webb, J., July Term, 1909, of MECKLENBURG. Action for damages fori breach of contract, appealed to the Superior Court by plaintiff from a magistrate’s judgment. The facts are stated in the opinion of the Court.

B. Jones, J., September Term, 1909, of Fob-SYTH. These issues were submitted to the jury: 1. “Was the storehouse of the plaintiff insured in the defendant company on 6 March, 1908?” Answer: “Yes.” 2. “Was said house insured under policies Nos. 2206 and 2282, terms of which were like policy marked Exhibit A’?” Answer: “Yes.” 3. “Was plaintiff the owner and had an insurable interest in the store building insured by the defendant and destroyed by fire ?” Answer: “Yes.” 4. “What…

<p>Appeal by defendant from E. B. Jones, J., February Term, 1909, of RowaN.</p> <p>The facts are stated in the opinion of the Court.</p>

B. Jones, J., March Term, 1909, of Randolph. Civil action, to recover damages for injuries caused by alleged negligence on tbe part of tbe defendant company. Tbe action was brought by T. W. Craven, a minor, suing by next friend, for injuries done to himself, and by T. W. Craven, tbe father, for damages by reason of loss of services during tbe minority of tbe son, and no objection was made by defendant to such joinder.

<p>1. Contract, Breach of — Note — Maturity — Suit, When Brought — Procedure.</p> <p>Under evidence tending to show that defendant agreed to give plaintiff a certain amount to boot in a horse trade, in the form of a note, payable at a time subsequent to the action, and to secure it with a chattel mortgage on the horse thus obtained, which he put off from time to time and failed to do, finally selling the horse to another, it is error to sustain defendant’s motion to non-suit upon the evidence, on the ground that suit was brought before the maturity of the note. Upon the breach of the agreement to give the note and security the action presently lies.</p> <p>2. Same — Measure of Damages.</p> <p>For the brehch of an agreement to give a note, secured by a chattel mortgage for the balance due plaintiff on a trade, the measure of damages, in an action thereon brought prior to the time the note was to have matured, will ordinarily be the amount indicated bjr the contract, — if the note was to bear interest, the amount and interest; if not, the present value of the note with interest thereon from time of suit.</p> <p>'3. Contract, Breach of — Note — Maturity — Suit, When Brought — Arrest and Bail — Procedure.</p> <p>The ancillary process of arrest and bail on an affidavit charging fraud and deceit, on the part of defendant, in the contract by which plaintiff’s property was obtained, does not change the nature of the plaintiff’s action brought for damages for breach of the contract, and such course is allowed under Revisal, 727, sub-sec. 4; but on recovery had there can be no imprisonment under final process unless the issue of fraud has been expressly submitted to and determined by the jury against the defendant.</p> <p>Manning, J., did not sit on the hearing of this case.</p>

<p>Appeal from Jones, J., April Term, 1909, of Davidson.</p> <p>Civil action, to recover damages for alleged negligent killing of intestate. The jury rendered the following verdict; .</p> <p>1. “Was the plaintiff’s intestate’s death caused by the defendant’s negligence ?” Answer: “Yes.”</p> <p>2. “Did the plaintiff’s intestate contribute to his own injury ?” Answer: “No.”</p> <p>3. “What damage, if any, is the plaintiff entitled to receive?” Answer: “Five thousand dollars.”</p> <p>There was judgment on the verdict for plaintiff, and defendant appealed, assigning for error several exceptions noted during the progress of the trial, and to the judge’s charge.</p>

B. Allen, J., May Term, 1909, of Sampson. Civil action, to recover tbe amount of a promissory note for $144. On tbe trial it appeared in evidence for plaintiff tbat on 16 May, 1907, tbe defendant executed tbe note in question for $144 to C. S. Lotbrop & Co., payable on 25 November, 1907, witb interest at six per cent., for value received, and on 22 May, 1907, tbe same was endorsed by said payees “without recourse” to tbe plaintiff bank at a discount of ten per cent.

Appeal by defendant from Gouncill, J., August Term, 1909, of Wilkes. Civil action, to- restrain tbe sale of certain lands under execution by tbe defendant, beard upon motion to continue tbe injunction to tbe final hearing. Tbe court continued tbe restraining order, and defendant appealed. Tbe facts are stated in tbe opinion of tbe Court.

<p>Appeal from W. R. Allen, JSpring Term, 1909, of ONsnow. Civil action, lieard on motion by trustees in bankruptcy to dissolve an attachment. The relevant facts are as follows:</p> <p>“On 25 April, 1908, a petition in involuntary bankruptcy was filed against Thomas A. McIntyre in the District Court of the United States for the Southern District of New York, and on 21 May, 1908, the said Thomas A. McIntyre was adjudged a bankrupt, and the petitioners were duly 'appointed trustees of the estate of the said McIntyre, and duly qualified and gave bond on 24 July, 1908.</p> <p>“On 9 June, 1908, after the filing of the petition in bankruptcy against the said Thomas A. McIntyre, and after he was adjudicated a bankrupt, the plaintiff instituted'-this action to recover judgment for the amount of a note he' held against said McIntyre, and in said suit at the time of the issuance of the summons caused to be issued and levied upon some real estate of the said Thomas A. McIntyre, then standing in his name upon the records of Onslow County, an attachment, and caused the summons and warrant of attachment to be served by publication, as shown in the record. After the levy of the warrant of attachment the petitioners filed their petition, showing that they were the trustees in bankruptcy of the estate of the said Thomas A. McIntyre, appointed and qualified as hereinbefore stated, and asked that the attachment be vacated. It further appears that since this suit was instituted the said Thomas A. McIntyre has died and his administrator has been made party defendant.”</p> <p>The court denied the motion, and the trustees (Burlingham, Peck and Bonynge, petitioners) excepted and appealed.</p>

<p>Appeal from Councill, J., March Term, 1909, of Mecklen-burg.</p> <p>Civil action, to recover damages for alleged negligent killing of plaintiff’s intestate-.</p> <p>There was evidence tending to show that on 1 August, 1908, the intestate, an employee' of defendant company, at work in its mill, was killed in the endeavor to push the belt, by which the power was applied to a machine, called a waste cutter, or waste chopper, from the loose to the tight pulley. The belt was in motion at the time, and the intestate, in the effort to push the belt from the loose to the tight pulley, as stated, was using a detached stick, supplied by the defendant for the purpose, and, while so engaged, was caught in the belt and thrown against the machine and killed.</p> <p>There was further evidence, admitted over defendant’s objection, tending to show that on the other similar machines in this mill there was a device called a shifter, by which the belt was pushed from one pulley to the other, the device operating by leverage and enabling the employees to shift the belts in comparative safety. It was further shown — and this, too, over defendant’s objection — that in this and other mills, where the power was applied by a belt in the same manner, it was usual and customary to have this device, called a shifter.</p> <p>The jury rendered the following verdict:</p> <p>1. “Was the plaintiff’s intestate injured by the negligence of the defendant, as alleged in plaintiff’s complaint?” Answer: “Yes.”</p> <p>2. “Did plaintiff’s intestate contribute by his own negligence, as alleged in the answer, to his injury and death?” Answer: “No.”</p> <p>*3. “"What damages, if any, is the plaintiff entitled to recover ?” Answer: “$3,850.”</p> <p>Judgment on the verdict, and defendant excepted and appealed.</p>

J. Adams, J., April Term, 1909, of Cumbeb-LAND. Tbe plaintiff sued to recover damages for personal injuries received by tbe feme plaintiff, O. B. Monroe, under tbe following circumstances: On Sunday nigbt, 14 June, 1903, tbe plaintiff was returning to ber borne from service at the Presbyterian Church, and, while walking through a vacant lot of tbe defendant, in tbe town of Fayetteville, fell into a pit and was severely and permanently injured, breaking her leg and some of…

<p>1. Justice of the Peace — Pleadings—Record—Jurisdiction.</p> <p>A substantial statement of tbe cause of action brought before a justice of the peace, should appear in the summons, pleadings, or otherwise in his record, so as to show jurisdiction; and the method of pleading generally adopted of issuing a summons for defendant to appear and answer a complaint upon a cause of action not stated, is disapproved. In this case, for a recovery of $194.78, the court inferred an action upon contract from the use of the word “indebted,” though otherwise the magistrate’s jurisdiction would not have appeared.</p> <p>2. Justice of the Peace — Appeal — Time of Docketing — Criminal’ Term.</p> <p>Revisal, see. 607, requiring the justice to make a return to the Superior Court and to file the return of the appeal within ten days after service of notice, etc., applies to criminal as well as civil terms, and upon failure of the appellant to docket his appeal as required by law, whether -the next term be criminal or civil, the appellee may have the case placed upon the docket and move to dismiss according to the provisions of Revisal, sec. 1493.</p> <p>3. Same — Superior Court — Jurisdiction — Procedure — Appellee's Laches — Waiver.</p> <p>By docketing an appeal from a justice’s court in the Superior Court, the latter court acquires, derivatively, the jurisdiction of the justice, and nothing more; and while the appellant may lose his appeal to the Superior Court unless perfected in the manner prescribed by the statute, the appellee must not sleep upon his rights, but make the motion to dismiss in apt time.</p> <p>4. Same.</p> <p>An appellee may by his own laches or conduct waive his right to dismiss an appeal from a justice’s court to the Superior Court fpr failure of appellant to perfect his appeal under Revisal, secs. 607 and 1493, as such matters relate only to irregularities in the procedure and not to the inherent jurisdiction of either court; and the appellee’s motion under the latter section is too late when made upon the trial of the cause in the Superior Court after evidence has been introduced.</p>

, May Term, 1909, of Catawba. The complaint alleges that the defendants — one of whom is the superintendent and the other three directors of the State Hospital for the Insane, located at Morganton, North Carolina — negligently discharged one Lonnie Eader, an insane patient committed to said hospital, from confinement therein, and that six mouths later the said Rader, while insane, killed the plaintiff’s intestate.

<p>1. Taxation — Special Tax — Re-canvass — Elections — Fraud — Evidence, Immaterial.</p> <p>Upon an issue as to whether the majority of the qualified voters in a certain school district voted in favor of a special school tax, the registrar and judges of election declared one result, and, subsequently, the registrar, and one of the judges of election again canvassed the votes and certified to the county commissioners another result. Held, that evidence to show alleged misconduct in the re-canvass is incompetent.</p> <p>2. Taxation — Special School Tax — Elections—Non-Residents—Questions for Jury.</p> <p>In an action to determine the true result of an election held for the purpose of voting a special school tax, it appeared that the result was really to be determined by whether a certain voter living nearest to the dividing line of the district was a qualified voter or not; and the verdict of the jury, upon legal evidence and under a proper charge, having found the location of the line in question in favor of defendant’s contention, and thereby established. the fact that the voter was a non-resident, it is conclusive of the question.</p>

Appeal by defendant from restraining order, granted by W. R. Allen, J., out of term (Nash County), on 9 February, 1909, by consent. Tbe facts are stated in tbe opinion of tbe Court.

Appeal by plaintiff from Justice, J., May Term, 1909, of Caldwell. Action for damages, to restrain tlie cutting of timber by defendant on lands .to which plaintiff claims title.

, January Term, 1909, of Wilxbs. Civil action, for the recovery of land. These issues were submitted : 1. “Is the plaintiff the owner and entitled to the possession of the land bounded by the lines indicated on the map by the corners A, 1, and X?” Answer: “Tes.” 2. “Is defendant in the wrongful possession of said land?” Answer: “Yes.” From the judgment rendered the defendant appealed,

<p>Appeal from Justice, J., May Term, 1909, of Catawba.</p>

, July Term, 1909, of RANDOLPH. Civil action, commenced before a justice of the peace and tried upon appeal.

, May Term, 1909, of G-astON. Civil action, tried at May Term, 1909, of the Superior Court of Gaston County, Ms Honor, Judge Councill, presiding. Tbe action is brought on a bond executed by defendant, of which the following is a copy: “State of Noim-r Oakolina — Gaston County.

Appeal by defendant from Justice, J., May Term, 1909, of Catawba.

<p>1. Surface Waters — Diverting Natural Flow — Damages.</p> <p>One is liable for damages caused to tbe lands of another by bis diverting tbe natural flow of surface water thereto.</p> <p>2. Same — Limitation of Actions — Permanent Damages — Easement.</p> <p>Tbe damage caused to tbe lands of another by tbe unlawful diverting of surface water thereon by means of a ditch is not barred by tbe tbree-year statute of limitation from tbe time tbe ditch was dug. The, trespass is not continuing, but tbe irregular downpouring of tbe water upon tbe land, in varying quantities, to tbe,injury of tbe land, and tbe recovery of damages is limited to those accruing within three years prior to tbe commencement of tbe suit, both as to annual or permanent damages, unless by acquiescence for twenty years tbe presumption of a grant or easement arises.</p>

, May'Term, 1909, of Caldwell. Civil action, for trespass on land and to restrain tbe cutting of timber. Plaintiff claimed title under two grants, Nos. 900 and 907, to G. W. Folk, dated in 1874. These grants were introduced, and it was admitted that plaintiff had mesne conveyance of this title, and that same covered the land in dispute.

<p>1. Ejectment — Lands—Title—Common Source — Estoppel—Burden of Proof.</p> <p>An action, of ejectment, under our present procedure, is an action to recover land, placing the burden upon plaintiff to establish title in himself good against the world, or good against the defendant by estoppel, or to show a common source of title with the defendant so as to bring himself within the rule of convenience, sometimes called an estoppel.</p> <p>2. Ejectment — Lands—Title—Questions for Jury — Instructions.</p> <p>An instruction which erroneously assumes that plaintiff has established his title in an action of ejectment, when the issue in the case is one of mixed law and fact to be found by the jury, under instructions of the court, is properly refused.</p> <p>'3. Ejectment — Title—Defendant’s Denial — Verdict—Costs.</p> <p>In an action of ejectment the jury found the issue as to title in plaintiff’s favor, except as to a small tract of land, and, also, that they were not entitled to recover damages. Held, that as defendants denied plaintiff’s title.and right of possession to the entire tract it was error for the trial court to refuse plaintiff’s motion to tax them with the costs, their disclaimer not being broad enough.</p>

, from Caldwell, denying, in May, 1909, tbe motion of plaintiff to continue an injunction to tbe bearing. Tbe plaintiffs, many in number, all owning land on Lower Creek, in tbe counties of Caldwell and Burke, sued tbe defendants, tbe town of Lenoir, its mayor and board of commissioners, to enjoin tbem from emptying tbe sewage of tbe town,‘tbrougb its sewerage system, then being constructed, into Lower Creek.

Appeal by defendant, Mott Iron Works, from Oouncill, J passing upon referee’s report, June Term, 1909, of MECKLEN-BURG. On 8 August, 1905, tbe Highlands Hotel Company, Incorporated, entered into a written contract with J. A. Jones for tbe erection and entire completion of tbe Selwyn Hotel.

, Spring Term, 1909, of Pole. This is an action in the nature of ejectment, to recover possession of a tract of land.

, May Term, 1909, oÍíCatawba, beard on appeal from a justice of tbe peace to tbe Superior Court. Tbe action was brought to recover damages for tbe malicious, useless and unlawful erection of a bigb board fence, commonly, called a “spite fence,” on defefidant’s lot, immeditely adjoining plaintiff, for the sole purpose of cutting off light and. air from plaintiff’s windows.

, August Term, 1909, of Bubbie. This proceeding originated before tbe Corporation Commission, and upon appeal by defendant was duly docketed in tbe Superior Court. At said term tbe plaintiff moved to dismiss tbe appeal because no notice had been served on B. F. Davis, president of tbe Merchants Association of Morganton., At tbe same term tbe defendant filed a petition and bond for removal to tbe Circuit Court of tbe United States.

Appeal by plaintiff from an order removing tbis cause for trial to tbe county of Beaufort. Tbe motion was made at tbe return term, before tbe time to answer bad expired, April Term, 1909, Superior Court of Pamlico County, tbe Hon. Charles M. Coolce, Judge, presiding. Tbe facts are stated in tbe opinion of tbe Court.

, July Term, 1909, of McDowell. Civil action to recover damages for personal injury. Tbe suit appears to bave been originally brought against tbe South and Western Railway Company, as well as tbe defendants, McCabe & Co., but no answer was filed by tbe railway company and no issue was submitted as to it, and no judgment taken against it. It is presumed tbe suit as to tbe railway company was not prosecuted.

<p>1. Deeds and Conveyances — Contracts to Convey Lands — Guarantee of Number of Acres — Parol Evidence.</p> <p>In an action to reform a written contract to convey land in conformity with an alleged guarantee of the vendor that the tract contained a certain number of acres, which, in fact, it did not contain, it is not necessary that the guarantee be in writing. The requirement imposed in this case, by the trial judge, that plaintiff show that defendant had omitted the guarantee from the written instrument, was not to defendant’s prejudice and therefore not reversible error.</p> <p>2. Deeds and Conveyances — Contracts to Convey Lands — Guarantee of Number of Acres — Option of Grantee — Remedy—Measure of Damages.</p> <p>When plaintiff has alleged and proven that the defendant had guaranteed that a certain tract of land, the subject of a written contract to convey between them, contained a hundred acres, and in fact, that it contained something less than eighty acres, it is optional with him to cancel the contract or take a deed for the land with a pro rata abatement in the price. In the latter case he may recover such damages arising from the loss of rents and profits he may have sustained as the proximate and direct result of having been wrongfully kept from the possession, less the interest on the unpaid balance of the purchase price.</p> <p>3. Same — Actual Damages — Rents and Profits.</p> <p>Plaintiff having established by the verdict of the jury, under competent evidence and correct instructions of law, that a contract to convey lands made with him by defendant should be reformed so as to include a guarantee that it contained one hundred acres, and that in fact it contained less than eighty acres, and also, certain loss of rents and profits by reason of his having been wrongfully kept from possession, he is entitled to a judgment that defendant hold the lands as a security for the balance of the purchase price due, with interest thereon, ascertained by deducting from the purchase price the amount thereof theretofore paid, and such damages as directly and proximately resulted to plaintiff by the wrongful withholding of the possession by the defendant.</p> <p>4. Deeds and Conveyances — Contracts to Convey Lands — Breach— Damages Remote.</p> <p>The plaintiff cannot recover of the defendant, as damages for unlawfully withholding possession of certain lands he had contracted to convey, the expense of moving his son and family from an adjoining State and boarding them during the time the possession had thus been withheld, such damages being too remote.</p> <p>5. Issues, Inconsistent — Verdict—Judgment.</p> <p>The exception by appellant to a judgment rendered on the verdict in favor of appellee, on the ground of inconsistent issues, cannot be sustained when it appears that appellee was entitled to his verdict on the answer of the jury as to each.</p> <p>Manning, J., dissents.</p>

<p>Appeal by plaintiff from Justice, J., September Term, 1909, of McDowell.</p> <p>Tbe facts are stated in tbe opinion of tbe Court.</p>

Adams, J., as of February Term, 1909, of MoDowell. This is an appeal from the order of his Honor adjudging the above-named respondents in contempt. His Honor imposed a fine of $250 upon the corporation and a fine of $100 each upon the other two respondents. The respondents appealed.

<p>1. Bond Issues — Legislature—“Aye” and “No” Vote — Constitutional Law — Clerk’s Erroneous Endorsement — Title of Bill.</p> <p>An act to allow a city to issue bonds passed upon its various readings with, the “aye” and “no” vote in accordance with tbe Constitution, is not rendered invalid after its passage in one branch, of the Legislature by the erroneous endorsement of the Clerk of the other branch thereof, when it appears there was no substantial difference therein, the numbers of the bill corresponded in every respect, the title on the face of the bill was unchanged, no other bill of like import was introduced at that session, and that the one first introduced became the act as finally ratified. Improvement Company v. Commissioners, 146 N. C., 353, cited and approved.</p> <p>2. Bond Issues — Legislature—Various Issues — Different Purposes— Elections — Interpretation of Laws.</p> <p>An act authorizing a city to issue bonds in the amount of $300,000, the issue in the first year not to exfeeed $100,000, and in any subsequent year not to exceed $50,000. Held, (1) a grant of legislative power for the issuance by the city of $300,000 in bonds if so much were required for the purposes set forth in the act, and if it were found by the city that so much' would not be required, then for the amount ascertained by the city and designated by the act and in accordance with its terms is constitutional and valid; (2) the intent of the Legislature was that one election be held for the various issues of bonds, and the fact that the issues were for various specified purposes does not affect the question, or change this ruling.</p> <p>3. Bond Issues — Elections—Notice—Legislative Acts — Substantial Compliance.</p> <p>Objection, made in tbis case to the regularity or validity of an issue of bonds by a city, that the ordinance calling an election and the notice of the .election are not specified, is untenable, it appearing that the time of the election was clearly stated in two newspapers publishing it, and that a sufficient opportunity to register and vote was given to all the qualified voters of the city, and that the requirements of the act were substantially, if not fully, complied with by the city authorities.</p> <p>4. Same — Maturity of Bonds.</p> <p>It is not necessary for the aldermen of a city to state the maturity of certain bonds to be voted upon in the call or notice of the election, when the act giving authority therefor refers that matter to their determination. In this case it appears that these matters were specifically stated in the call for and notice of election, and that the voters fully understood the proposition.</p>

Adams, J., in habeas corpus proceedings, Bunoombe County, September, 1909. This is an application for a writ of habeas corpus, which was issued on the petition of Elizabeth Turner for the possession and custody of Constance Elizabeth Turner, hereinafter designated as Constance; and on the hearing of said petition, James B. Turner, father of Constance, came in and asked that he be made one of the petitioners with the original petitioner, Elizabeth Turner, which was granted.

, August Term, 1909, of Rutherford. The plaintiff sued to recover damages for an injury received by him, through the negligence of the defendants, while he was working for the Millard Quigg Construction Company, a corporation, under the laws of Virginia, engaged in constructing a part of the railroad of the South and Western Railroad Company. The injury was received in October, 1907.

J. S. Adams, June Term, 1909, of Btjkke. His Honor submitted issues to tbe jury, presenting (1) tbe negligence of tbe defendants; (2) tbe contributory negligence of tbe plaintiff’s intestate; (3) tbe last clear cbance; (4) damages. Tbe jury answered all tbe issues in favor of tbe 'plaintiff, and assessed damages in tbe sum of $6,000. Tbe case was beard entirely upon tbe evidence of witnesses offered by tbe plaintiff.

, May'Term, 1909, of BttNCOMBe. Tbe defendant M. E. Jones alone was served witb summons, and defended tbe action. Tbe plaintiffs sued to recover a balance of $292.22 and interest for tbe value of tbe goods sold and delivered to tbe partnership of J. G-. Lance & Co., tbe company being tbe defendant, Mrs. M. E. Jones. Tbe goods were sold on tbe strength of Mrs. Jones’ connection as a partner.

Appeal by defendant from Long, J., May Term, 1909, of Ala-MANCE. This action was brought to recover damages for an -alleged negligent delay in delivering a telegram. The material facts are as follows: .

<p>Appeal from Justice, J., August Term, 1909, of Bubke.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal by plaintiffs from Ferguson, J., July Term, 1909, of SwaiN.</p> <p>Tbe facts are stated sufficiently in tbe opinion of tbe Court.</p>

, December Term, 1909, of Gtjilfobd. This is an action brought by the plaintiff, a taxpayer and citizen of the city of High Point, against the defendant, to enjoin it from issuing bonds to the amount of $30,000, the proceeds of the sale of which are to be used in paying a debt contracted for a necessary expense of said defendant.

<p>Appeal by plaintiff from Ferguson, J., September Term, 1909, of GRAHAM.</p> <p>Tbe facts are stated in, tbe opinion of tbe Court:</p>

<p>Principal and Agent — Account Stated — Admissions—Receipt — Agent’s Unauthorized Acts. '</p> <p>Plaintiff, being indebted to a bank, delivered, at an agreed price and under a contract of purchase with defendant railroad, a certain number of crossties at said road and told defendant to send statement and certificate of the amount to the bank. Thereafter defendant accepted the ties, but at a reduced price, and sent statement accordingly to the bank and had the bank to receipt the statement “in full of above account.” The plaintiff notified both the bank and the railroad company that he would accept the payment only in part. Held, (1) the account rendered by defendant to the bank was no more than an admission that it owed the plaintiff the sum stated therein; (2) the receipt of the bank was not in full of plaintiff’s demand, but only in full for the amount stated; (3) there was no evidence to warrant the bank to receipt for plaintiff in full of his demand, and such receipt would not be binding upon him. Kerr v. Sanders, 122 N. C., 635; Armstrong v. Lonon, 149 N. C., 435, cited and distinguished.</p>

Adams, J., September Term, 1909, of BUNCOMBE. Civil action, to recover damages on account of tbe negligent killing of plaintiff’s intestate, B. Allen Bryant, a passenger, who was admitted to bave been killed in a collision between a passenger and freight train of defendant company, alleged to bave been caused by tbe negligence of tbe defendant Leonard, a brakeman in tbe company’s employment. The two issues of negligence and damage were submitted and found for tbe plaintiff.

Adams, J., September Term, 1909, of BUNCOMBE. Civil action, to recover damages for personal injuries sustained by plaintiff, a brakeman in tbe employment of tbe Southern Eailway Company, at Statesville, on 13 May, 1905. Tbe usual issues of negligence, contributory negligence and damage were submitted to tbe jury and found for plaintiff. Defendant appealed.

, January Special Term, 1909, of BuTHEREORD. Civil action, to recover on a death certificate. There was a verdict for plaintiff, and judgment, and defendant excepted and appealed.

8. Adams, J., June Term, 1909, of Yaitcey. Civil action, to recover damages for tbe wrongful killing of Turner Wright, deceased.

, March Term, 1909, of OkaNGE. Civil action, to recover damages for alleged negligent injury.

, November Term, 1909, of GraveN. Civil action, beard on demurrer to complaint. There was judgment sustaining the demurrer, and plaintiff excepted and appealed.

Webb., J., October Term, 1909, of Meckxen-BURG. Civil action, to recover damages for alleged negligent killing of the plaintiff’s intestate.

, July‘Term, 1909, of McDowell. Action to recover damages for negligent failure to deliver a telegram. The evidence tended to show that the defendant company had negligently failed to deliver to plaintiff the following telegram: “Tour mother died last night. Come home tó-day.

<p>Appeal from Joseph 8. Adams, J., May Term, 1909, of HeN-DERSON.</p> <p>Civil action, to recover possession of a piece of land. Summons in tbe action was issued 18 August, 1902, by W. B. Moore, present plaintiff, against A. Q. Moore and wife, L. B. Moore, grantors in tbe deed to A. C. Moore. Some time in 1906, tbe precise time not stated in tbe record, tbe death of A. Q. Moore was suggested and an order -was made tbat bis beirs at law be made parties defendant. No process was issued or notice given under this order; and at November Term, 1907, an order was entered tbat notice issue or action abate at tbe next term. Prior to tbe next civil term, process was issued and some of tbe defendants served, and thereafter publication was made for certain other defendants who were nonresidents. On these facts tbe defendants moved tbat tbe action abate as to tbe beirs of A. Q. Moore. Motion denied, and defendants excepted.</p> <p>Tbe plaintiff claimed tbe land in controversy under a deed from A. Q. Moore and wife, L. B. Moore, to O. E. Moore, in October, 1887, purporting to convey tbe land described in tbe complaint and deed from O. E. Moore to W. B. Moore, plaintiff, purporting to convey same land, and offered said deeds in evidence, and it was admitted tbat said deeds embraced tbe land.</p> <p>Defendants answered, denying plaintiff’s title, set up tbe statute of limitations, and, for a further defense, alleged tbat A. Q. Moore and wife bad only bargained and sold to O. E. Moore and W. B. Moore .a tract of land, tbe correct description of which, in terms, and by tbe contract between them, did not embrace tbe land in controversy, and, by mistake of tbe parties, tbe deed in question was so drawn as to include said land; and on tbe trial defendants offered, with other evidence tending to show tbat tbe contract was as defendants claimed, certain statements of plaintiff claimed to be relevant to tbe issue.</p> <p>Tbe court excluded tbe testimony offered, on tbe ground tbat C. E. Moore, tbe grantor in tbe original deed, was not a party or present at tbe making of tbe statement, and, second, because tbe evidence was not connected with tbe execution of tbe deed in which tbe alleged mistake was alleged to have occurred, and defendants excepted. Tbe court further held that on tbe testimony neither party bad ripened title by possession, and defendants again excepted. Verdict for plaintiff, judgment, and defendant excepted and appealed.</p>

, April Term, 1909, of TeaNSYl-VANIA. This was a civil action, beard by Ferguson, J., at April Term, 1909, of tbe Superior Court of Transylvania County, on motion of defendant to remove tbe trial to the county of Cabarrus. His Honor overruled tbe motion, and defendant appealed.

PLAINTIFFS’ APPEAL. This was a civil action, instituted in McDowell County, and, by order of the Superior Court, duly removed for trial to Bukke County, where it was tried before J. S. Adams, J., and a jury, at May Term, 1909. Both parties appealed.

, on motion of plaintiffs to continue restraining order to the final hearing of the action, heard 23 October, 1909. From Haywood. Held: at which a majority of tbe qualified voters in said district voted for tbe tax.” Upon these facts tbe court held tbat tbe establishment of tbe district was a matter in tbe discretion of tbe county board of education and tbe court bad no power to enjoin tbe collection of tbe tax.

J. Adams, J., November Term, 1909, of UNION, and beard at chambers. Held: and no voter was misled by the failure to advertise the place of holding the' election, the place for holding said election being well known to all in the district, and did not discover the omission to designate the place of election until after this action was brought. 6.

, June Term, 1909, of G-uilfobd. Civil action, to determine tbe ownership of a fund of $1,000 in tbe possession of J ames A. Hodgin, trustee, beard upon .exceptions to report of referee, wbicb report is as follows; “In obedience to tbe order of reference made in tbis action, I proceeded on 6 May, 1909, to execute tbe same.

, August Term, 1909, of Graham. Civil action, to recover land and damages.

<p>Appeal from E. B. J ones, J., February Term, 1909, of RowaN.</p> <p>Civil action, to subject certain land conveyed by the defendant, William A. Sides, to Ms wife, Annie, to the payment of $269.09 paid out by plaintiff, as surety for William A. Sides, on a bond in the penal sum of $500 executed to the United States, 16 July, 1897.</p> <p>These issues were submitted without objection:</p> <p>1. “Is defendant, W. A. Sides, indebted to plaintiff? If so, in what amount?” Answer: “$269.09, with interest since 22 August, 1906.”</p> <p>2. “Was the deed from W. A. Sides to his wife, as set out in the complaint, executed with intent to hinder, delay, defraud and defeat the plaintiff’s rights?” Answer: “Yes.”</p> <p>3. “Was the defendant, W. A. Sides, after the execution of the deed to Annie Sides, his wife, thereby rendered insolvent?” Answer: “Yes.”</p> <p>4. At the time of the execution of the deed by W. A. Sides to Annie Sides, his wife, did he reserve property sufficient and available to pay his'debts?” Answer: “No.”</p> <p>5. “Did the feme defendant, Annie Sides, have knowledge of or participate in any fraudulent intent on the part of her husband in the execution of said deed?” Answer: “Yes.”</p> <p>6. “Is plaintiff’s cause of action barred by the statute of limitations?” Answer: “No.”</p> <p>The court rendered a judgment against W. A. Sides for $308.82, with interest on $269.09 from 8 February, 1909, and decreed that the deed to the wife, Annie A. Sides, dated 1 August, 1903, be set aside and declared void as to plaintiff’s demand. From this judgment the defendants appealed.</p>

Appeal by plaintiff from W. J. Adams, Jupon bis dismissing plaintiff’s petition for a writ of mandamus, filed in Uwiow County, and beard at chambers on 28 September, 1909.

, May Term, 1909, of Cabareus. Civil action, to recover the sum of $206.40, on account of a lumber transaction.

Appeal by plaintiffs from Webb., J., upon bis rendering judgment dissolving plaintiff’s restraining order in an action brought in GastoN County. The judgment was rendered at chambers, at Concord, 31 August, 1909. The facts are stated in the opinion of the Court.

ActioN beard on motion to dismiss and dissolve a restraining order, before Justice, J., at chambers in Rutherfordton, N. 0., on 15 October, 1909. It appeared that on August 25, 1909, E. H. Warlick et al., plaintiffs, citizens and residents of Burke County, N. O., bad instituted tbe action in tbe Superior Court of said county against H. P. Reynolds & Co. and tbe First National Bank of Hunting-don, Pa., citizens and residents of tbe State of.

<p>1. Injunction, Temporary — Order Dismissed — Appeal and Error— Acts Accomplished — Abstract Propositions.</p> <p>An appeal from the dissolution of a restraining order will not be considered, when it appears that acts sought to be restrained have been committed, the appeal thus presenting merely an abstract proposition.</p> <p>2. Appeal, and Error — Interlocutory Orders — Appeal Dismissed — Procedure.</p> <p>The dismissal of an appeal from an interlocutory order dissolving an injunction does not necessarily dismiss the action, but leaves it pending in the Superior Court.</p>

<p>1. Judgments — Lands—Levy—Quieting Title — Injunction.</p> <p>The plaintiff showing title to lands by deed .expressing a valuable consideration, made and recorded prior to an attachment levied thereon by a judgment debtor of his grantor, may maintain his action to quiet title under the provisions of ch. 763, Public Laws of 1903, amending ch. 6, sec. 1, Public Laws 1893, now Revisal (Pell’s), sec. 1589; and when defendant has answered alleging fraud of plaintiff in the procurement of his deed, an injunction will lie restraining the sale under the levy until the issue of title can be determined.</p> <p>2. Deeds and Conveyances — Corporations—Officers—Present Consideration — Fraud—Questions for Jury.</p> <p>A deed made by a lumber corporation to its principal officers of a large tract of land, expressing a present consideration, which, being subject to the lien of a prior mortgage, appears to be adequate, will not be declared fraudulent and void as a matter of law; and though the burden be upon plaintiff, alleging that he is a purchaser for value ’and without notice of fraud, if any existed, tó show that he bought for a valuable consideration and without notice, the question is one for the determination of the jury under the issue raised by defendant’s allegation that it was . conveyed to defraud him and the other creditors of the grantor. Mclwarcls v. Supply Go., 150 N. C., 171, in which the consideration for the deed in controversy was a pre-existing debt, cited, approved and distinguished.</p> <p>3. Injunctions Dissolved — ‘Appeal and Error — Injunction Continued —Bond—Procedure. ,</p> <p>The Supreme Court in this case having overruled the judgment' of the lower court in dissolving the plaintiff’s injunction, requires the plaintiff to give a bond in a certain named sum, payable to defendant, with sureties approved by the Superior Court Clerk, with order that defendants be notified of its tender that they may object to its sufficiency; the bond to be filed within fifteen days from the filing with said clerk of a certified copy of this opinion, and conditioned to pay cost of the action and the principle and interest of the debt, if defendant’s right of attachment and execution on the lands in question be finally upheld.</p>

<p>Appeal from Peebles, J., June-Term, 1908, of BuNCOMbe, by Engineering Company and S. J. Bean Company.</p> <p>Tbe facts are stated in tbe opinion of tbe Court.</p>

<p>Appeal from Ferguson, J., July Term, 1909, of Swain.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>1. Deeds and Conveyances — Probate—Certificates—Adjudication— Substantial Compliance — Sufficiency—Supreme Court — Appeal and Error.</p> <p>A substantial requirement witb. Revisal, secs. 999 and 1001, is all tliat is necessary to be observed by tlie Cleric of tbe Superior Court of tbe county wherein tbe land lay, in passing upon the certificates to a deed thereto made and executed in another State; aud when objection to the validity of registration is made on that ground and it appears of record on appeal that the certificates made in such other State are in fact sufficient, the validity of the registration will be declared and upheld by the Supreme Court. ,</p> <p>2. Deeds and Conveyances — Probate—Certificates—Adjudication— Substantial Compliance.</p> <p>When a deed in trust made and executed beyond the borders of this State conveying lands herein has been there acknowledged and probated before a notary public, and (unnecessarily) the Cleric of the Supreme Court, in compliance with á statute there, has certified the official character of the notary and his authority as such, it is a sufficient compliance with Revisal, secs. 999 and 1001, for the Clerk of the Superior Court of the county wherein the land lay, to certify that “the foregoing and annexed certificate of (naming the clerk), a clerk of the Supreme Court, etc., duly authenticated by his official seal, is adjudged to be correct, in due form and according to law, and the foregoing and annexed deed of trust is adjudged to be duly proved, etc.”</p>

<p>Appeal by defendant from Long, J., March Term, 1909, of Dubham.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from Peebles, J., April Term, 1909, of Washington.</p>

<p>1. Evidence — Notes of Committing Justice.</p> <p>The notes of evidence made by a committing magistrate upon the hearing are not conclusive as to the testimony of witnesses examined.</p> <p>2. Same — Parol Evidence — Independent Recollection.</p> <p>On the trial in the Superior Court it is competent for purposes of contradiction, to offer parol evidence as to what a witness testified to upon such preliminary examination.</p>

<p>1. Recorder’s Court — Jurisdiction—Constitutional Law.</p> <p>The act of 1909. chap. 633, sec. 4, creating a Recorder’s Court of Nash Counjy, giving it the jurisdiction of courts of a justice of the peace and additional jurisdiction of offenses below a felony, declaring such to be petty misdemeanors, and providing for an ¿ppeal to the Superior Court, does not contravene the State Constitution. Constitution, Art. IV, secs. 2, 12 and 14. The court follows former precedents.</p> <p>2. Same — Superior Court — Quashing Bill.</p> <p>xVn indictment for an assault with a deadly weapon is a misdemeanor and cognizable by the Recorder’s Court of Nash County (Laws 1909, chap. 633), and the Superior Court of that county properly quashed the bill for want of original jurisdiction, the indictment having been found after the law creating the Recorder’s Court had been enacted.</p>

<p>Appeal from Peebles, J., February Term, 1909, of Beaufort.</p> <p>The State appealed.</p>

<p>Legislative Acts — Creating Inferior Courts — Prospective Effect.</p> <p>An act of the Legislature creating a court of inferior jurisdiction to the Superior Oourt operates prospectively, unless a contrary intention appears in the act itself, and when the latter Court has previously acquired jurisdiction of an offense included in the jurisdiction of the former by the finding of a bill, before the passage of the act, its jurisdiction in that instance is not divested by the new law, and the motion to quash the bill in this case was, therefore, properly disallowed.</p>

<p>Appeal and Error — Forma Pauperis — Defective Affidavit — Jurisdictional — Dismissal of Appeal.</p> <p>Tiie affidavit for an appeal in forma pauperis is defective which does not aver “that the appellant is advised by counsel learned in the law that there is error in matter of law,” etc.-, Revisal, sec. 597; and the compliance with the provisions of this section being jurisdictional, the appellee can have the appeal dismissed as a matter of right upon the-failure of appellant to comply therewith.</p>

Appeal by defendant from Goolce, J., June Term, 1909, of Oaeteeet. Indictment for bouse burning. Tbe defendant was convicted, and from tbe sentence of tbe court appealed. The facts are sufficiently stated in tbe opinion.

<p>Appeal by defendant from W. B. Allen, J., August Term, 1909, of WaTNE.</p>

<p>Appeal by defendant from W. J. Adams, J., February Term, 1909, of Columbus.</p> <p>The facts are stated in the opinion of the Court.</p>

J. Adams, J., May Term, 1909, of Citmbbb-LAND. Indictment for violation of an ordinance of tbe city of Fay-etteville. Tbe ordinance is as follows : “Sec. 13.

<p>Appeal by defendant from W. R.-Allen, J., August Term, 1909, of WayNe.</p>

Appeal by defendant from W. J. Adams, J., August Term, 1909, of UNION, from conviction, under an indictment for burning tbe barn of one Paul Huntley. The facts are stated in the opinion of the Court.

<p>1. Deeds and Conveyances — Forgery — Publication — Intent to Defraud — Declarations—Natural Evidence — Hearsay.</p> <p>When defendant is tried for forging a deed from bis father, since deceased, to himself, and uttering and publishing it with an intent to defraud the other children and heirs at law, defendant may show by a State’s witness that deceased had acknowledged to this witness the execution of the deed, with deceased’s declaration at the time that defendant had done more for him than any other of his children had done, etc.; (1) it tended to show the disposition of the father towards the son at the time the deed was alleged to have been executed by the father; (2) it was natural evidence and the only obtainable evidence of the intent of the grantor, and an exception to the rule of hearsay evidence.</p> <p>2. Same.</p> <p>While such declarations are not direct evidence that the father executed the deed, which the son is being tried for forging, it is a material circumstance tending to show it and excluding such evidence is reversible error. The questions raised in this case by defendant upon the plea of “former acquittal” are not passed upon on this appeal as they may not again arise.</p>

Appeal by defendants from Long, J., March Term, 1909, of GrDTLEORD. This’ was an indictment for libel.

J. Adams, J., March Term, 1909, of BladeN. The defendant was indicted for the murder of Frank Shaw, his father-in-law, on the night of 10 December, 1908, in- Bladen County, and, upon his plea of not guilty, was tried and convicted of murder in the first degree, and from the sentence of death pronounced by the court he appeals to this Court.

, June Criminal Term, 1909, of Guilford County, in a cause where there had been a plea of guilty entered by defendant, at December Term, 1907, said cause having gone off docket at.-Term, 1908, and restored by order of his Honor at said June Term, 1909, for the purpose of imposing sentence.

<p>Upon examination of tile entire evidence and the charge as a whole, no error is found.</p>

<p>Appeal by defendant from Long, J., July Term, 1909, of RANDOLPH.</p> <p>Tbe facts are stated in tbe opinion.</p>

, July Term, 1909, of Randolph. Indictment for incest. This case was before tbis Court at Spring Term, 1909, and is reported 150 N. 0., 846. On that appeal of defendant a new trial was granted. The defendant was again convicted, and appealed to this Court.

<p>Appeal by defendant from Moore, J., February Term, 1908, of Guilfobd.</p> <p>The facts are stated in the opinion.</p>

, August Term, 1909, of MeckxeN-bueg. Tbe defendant was indicted and found guilty of an assault with a deadly weapon. The evidence of the State was to the effect that while Charles Thomas, prosecuting witness, was in the Driving Club, in Charlotte, defendant came into the club and, without warning, provocation or excuse, shot Thomas five times, inflicting upon him most serious bodily wounds. Two shots were fired after Thomas had fallen to the floor.

B. Jones, J., September Term, 1908,- of Ala-MANCE. Indictment for bigamy.

<p>1. Warrant of Arrest Not Signed — Appearance Bond — Sufficiency.</p> <p>It is immaterial to the validity of an appearance bond given by defendant before the court and in custodia legis that the warrant for his arrest, in due form, was, inadvertenly, not signed by the recorder.-</p> <p>2. Appearance Bond — Deposit of Cash — Sufficiency.</p> <p>The voluntary deposit of cash by the prisoner in lieu of an appearance bond is a compliance with the true spirit and meaning of the requirement therefor, and may not be returned to him upon the ground that the judge erred in accepting it, certainly not when the defendant is a fugitive from justice and makes the application by attorney.</p>

, J., September Term, 1909, of MecheleN-BTJRG. Tbe defendant was convicted in tbe recorder’s court of tbe city of Charlotte of a misdemeanor for selling near beer without a license, and appealed to tbe Superior Court of Mecklenburg. He was convicted by tbe jury, and from tbe judgment of tbe court appealed to tbe Supreme Court. The facts are stated in tbe opinion of tbe Court.

, August Term, 1909, of Caldwell. Indictment for disturbing a religious congregation, under section 3706, Eevisal 1905. Defendant prayed the court to instruct the jury that, before the jury could convict the defendant, they must be satisfied beyond a reasonable doubt that the meeting was a religious meeting, and that the place was one where people were accustomed to assemble for divine services. This was refused, and defendant excepted.

Appeal by defendant from Ward, J., April Term, 1909, of BUNCOMBE. Indictment for selling spirituous liquors. The defendant was convicted, and appealed. Tbe facts are stated in the opinion of the Court.

, January Term, 1909, of FeaNKLIN. Criminal prosecution for failure to work tbe public roads, beard on appeal from a justice’s court. Tbe facts are stated in tbe opinion.

Tbis was an indictment under section 3432, Revisal. . The jury returned the following special verdict: “The Clarke-Smith Company was a corporation, engaged in mercantile business at Belhaven. It issued aluminum checks to employees of the Roper Lumber Company, representing goods, and good for amount in goods named in check.

, October Term, 1909, of Polk. Indictment for murder in second degree. Tbe defendant was convicted of manslaughter, and from tbe judgment pronounced, appealed.