Volume 152 — North Carolina Reports

, September, 1909, of Pasquotank. Civil action, beard on appeal from a justice’s court and on facts agreed.

<p>Damages — Title—Evidence—Questions for Court — Instructions.</p> <p>In an action for damages for cutting timber, plaintiff claimed title as beirs at law of T. and R. D., Jr., deraigning title from a 60,000-acre grant to C., and from bim to R. D., Sr., tbe father of T. and R. D., Jr., wbo conveyed 57,000 acres to one I-L, leaving a residue of 3,000 acres. R. D., Sr., devised bis lands to bis sons, T. and R. D., Jr., and bis executor in 1823 sold tbe lands of R. D., among them “1,300 acres, tbe residue of said C. tract of 3,000 acres,” to pay bis debts, under a decree of court, and made deed to the purchaser under w110111 defendants claim by mesne conveyances, being purchasers for value. Since tbe deed of 1823 neither plaintiffs nor those under whom they claimed have exercised ownership of the locus in quo, or set up claim thereto, or paid taxes thereon: Sold, no error to charge the jury, that if they found the facts as testified to, to find for defendants.</p> <p>Walker, J., dissenting.</p>

<p>Appeal from Ward, J., September Term, 1909, of Pasquo-TANK.</p> <p>This was a civil action in the nature of quo warranto, to try the title to the office of Alderman of the City of Elizabeth City. The election was held on 11 May, 1909, pursuant to the charter of the city, at which the relator, M. Gr. Wright, and C. 0. Spires were opposing candidates for election as alderman of tbe Seventh Ward in said city. Tbe relator received 66 votes; tbe defendant 44 votes. Tbe judges of tbe election certified tbis result to tbe board of canvassers of the election. This board rejected all the ballots cast for Wright and declared the defendant duly elected; and he was duly admitted to the office, and now holds and enjoys its privileges and emoluments. After obtaining the consent of the Attorney-General, the relator brought this action to recover the office. It is admitted in the answer as one of the causes of objection to relator’s election (and no other is set out in the answer or suggested in the evidence), that “the ballots cast for the relator were hot as prescribed by law, and that they were 1% x 3 inches in size, instead of 1 x 3 inches in size, which size was prescribed by law.” The evidence disclosed that the board of aldermen had prescribed the size of the ballot to be 1 inch wide by 3 inches long; and the ballots cast for relator differed from this size, as set out in the answer.</p> <p>His Honor instructed the jury that if they found the facts to be as stated above, then they should answer the issues in favor of the plaintiff. This was done, and judgment was rendered declaring plaintiff to have been duly elected, and entitled to the office, and ousting the defendant therefrom.</p> <p>The-defendant excepted to his Honor’s refusal to nonsuit the plaintiff, and to the instruction given, and appealed to this Court.</p>

<p>Appeal from Lyon, J., March Term, 1909, of JohNstokt.</p> <p>By order of reference theretofore made, the action had been referred to F. A. Daniels, Esq., to report his conclusions of fact and law to the court. The referee, after notice, took evidence and reported the same with his findings of fact and conclusions of law, to which, being adverse to the plaintiff, he excepted. .</p> <p>The defendants contended that the ancestor of plaintiff purchased with notice of the equity of the defendant Isabella R. Fuller; that the registration books showed the relation of mortgagor and mortgagee between the said Isabella R. Fuller and T. H. 'Whitley, the vendor of the plaintiff’s ancestor, and that in equity plaintiff was bound by such relationship and was subject as his vendor to be held to an accounting for rents and profits received by his vendor.</p> <p>The defendants further contended that the deed from T. H. Whitley to plaintiff’s aficestor was itself notice of their equity against plaintiff’s vendor.</p> <p>It was admitted that Joseph Fuller died seized and possessed of the tract of land in controversy; that he left a will which was duly probated, in which he directed that his debts be paid and the remainder of his estate be divided equally between his wife, Isabella R. Fuller, and his children, six in number, charging the share of one with a named advancement, and the share of one with a certain sum in excess of the others. He appointed his son, Frank G-. Fuller, and his son-in-law, T. H. Whitley, executors and directed that all his property, real and personal, be sold at public sale by his executors.</p> <p>The testator was largely indebted at his death, and his widow dissented from his will. The administration proceeded, and no dower in his real estate being allotted to the widow in the tract of land which is the subject of this action, the executors advertised' the land for sale pursuant to the powers in the will, the sale being regularly advertised to take place at the courthouse door in Smithfield, when and where, by arrangement, the widow became the last and highest bidder for'the sum of $1,500 — a reasonably fair price for the land, and a sum a little more than sufficient to pay the debts of the testator, except the amount due T. H. Whitley and the sum of $300 due upon a judgment of doubtful validity.'</p> <p>The deed was made to Mrs. Fuller, and she, not having the money to pay for the land, T. H. Whitley, her son-in-law. and one of the executors, loaned her the money and charged himself as executor with it in his account filed with the clerk. The deed to Mrs. Fuller was dated Y January, .1895, the day of sale, and was recorded 11 March, 1896. Mr§. Fuller executed on the same date, Y January, 1895, a mortgage on the laud to T. H. Whitley for $1,800 — $1,500 the purchase price and $300 the amount of the doubtful judgment, which deed was recorded 11 March, 1896, and the defendant E. G. Fuller, son of Mrs. Fuller aud coexecutor, was the witness to the mortgage deed and proved the same.</p> <p>At this time the-said 'Whitley seems to have been a man of some means and credit, and was looked upon by Mrs. Fuller as a trusted adviser and her principal reliance for support.</p> <p>' As the sale at which Mrs. Fuller purchased was a public sale, duly advertised, we must assume the price she bid was a fair price for the land, and it was so according to the evidence reported by the referee, though there is no finding by him on this matter and no question of its inadequacy raised by the defendants.</p> <p>Subsequently, more than four years thereafter, on 12 April, 1899, Isabella R. Ftdler executed a deed in fee simple to T. II. Whitley, which deed recited a consideration of $2,000, and was duly recorded on 20 April, 1899, the subscribing witness to this deed and by whom it was proved being F. G. Fuller, the son of the grantor.</p> <p>On 28 December, 1903, nearly five years thereafter, T. H. Whitley and wife conveyed the land to Allen K. Smith, plaintiff’s ancestor, for the recited consideration of $2,500, which deed was recorded on 29 December, 1903, the said deed being as follows (omitting parts not material to this action) : “That said T. H. Whitley and wife, Ida B. Whitley, in consideration of $2,500 to them paid by Allen K. Smith, the receipt of which is hereby acknowledged, hath bargained and sold and by these presents do bargain, sell and convey to said Allen K. Smith and his heirs and assigns all of their right, title and interest in and to a certain tract (describing same by metes and bounds), to have and to hold the aforesaid tract or parcel of land and all privileges and appurtenances thereto belonging, to the said Allen K. Smith, his heirs and assigns, to his only use and behoof forever. . The said T. H. Whitley and wife, Ida B. Whitley, by this deed relinquish all right, title and interest in and to the said land by virtue of the above deed and no further, said deed made by Isabella R. Fuller.”</p> <p>The mortgage from Mrs. Fuller to Whitley was canceled by Whitley and marked by him satisfied on the record, on 20 April, the day the deed to him was filed for registration.</p> <p>After the deed to Whitley was executed, the defendant F. G. Fuller rented the land from Whitley and paid him rent therefor, and Mrs. Fuller continued to live in the dwelling-house with her son, she not having ceased to live there since the death of her husband. The defendant Fuller was a tenant of Whitley at tbe time Whitley executed deed to Allen K. Smith. The summons in this action was issued 8 January, 1904, within fifteen days after the deed was executed.</p> <p>In addition to the above facts, the referee found the following additional facts: Mrs. Fuller dissented from her husband’s will, and at the public sale the land was bid in. for her at $1,500; deed was made to her by the executors; that she did not pay one dollar of the purchase money; that Whitley advanced for her all the purchase price; that she executed a mortgage to him for $1,800; that the $300 included was the amount of a judgment against her husband which had never been paid; that Whitley received the rents from the land; that she and her son lived on the land; that the land depreciated in condition; that she had nothing; that she was about 72 years old' and depended for advice upon her son-in-law, Whitley; that she never paid anything on the debt; that at the time she made the deed her son-in-law told her he needed money; that she hesitated about signing the deed; that he did not produce any statement of account showing how much she owed; that he told her if she did not wish to make the deed, not to do so; that she said that if she must she would rather for him to have it than any one else; that her son, E. G-. Fuller, was present and witnessed the deed; that Whitley did not pay her anything, and no receipts passed between them; that the rents received by Whitley would very nearly pay the debt due him, and if the fair rental value of the land were applied, she owed him on 1 January, 1905 (exclusive of taxes and repairs), $236; that she had not paid any taxes on the place.</p> <p>It seems that from the time Mrs. Fuller purchased, 7 January, 1895, to 28 December, 1903, the date of the deed to plaintiff’s ancestor, she did not mention to any one that she asserted any claim of title or interest in the real estate.</p> <p>The referee based his conclusions of law upon the relationship of mortgagor and mortgagee between Mrs. Fuller and Whitley and the presumption of this continued relationship. That the registration of the mortgage deed, though canceled nearly five years before the purchase by plaintiff’s ancestor, was sufficient to put him on notice; and that while he uaid a fair price for the land, he was affected with notice of Mrs. Fuller’s equities and liable to account therefor for all the rents received by Whitley.</p> <p>Allen K. Smith, Whitley’s vendee, died after this suit was. commenced, and the present plaintiff, his only heir at law, was made party.</p> <p>His Honor held, upon the exceptions to the referee’s report filed by plaintiff, that plaintiff’s ancestor was a purchaser for value and without notice of Mrs. Fuller’s equities, if any, and gave judgment for plaintiff, from which Mrs. Fuller appealed to this Court.</p>

<p>Appeal from Ward, J., Fall Term, 1909, of PeequimaNS. Civil action, tried upon an appeal by the defendant from the order of the county commissioners laying out public road across her lands.</p> <p>The defendant moved the court to dismiss the report of the jury and to refer the matter to the county commissioners to appoint a new jury to lay off road, for that one of the jury was one of the petitioners. Overruled, and defendant excepted.</p> <p>The defendant Godfrey then tendered an issue as to whether the proposed road was for the public good and convenience. The court, being of the opinion that the defendant Godfrey, not having appealed from the order to lay off the road, had waived her right to submit said issue, declined to submit said issue. Defendant Godfrey excepted.</p> <p>Tbe court then submitted the issue as to damages. The court then signed the judgment set out in the record. Defendant excepted, and appealed.</p>

Appeal by plaintiff from Ward, J., December Term, 1909, of Beaufort.

<p>Evidence — Attachment—Examination of Books — Testimony as to Contents, When.</p> <p>In proceedings in attachment levied on the proceeds of a draft with bill of lading attached, drawn on plaintiff by defendants in payment for a carload of goods, the draft made payable to a bank, an intervenor, it is competent for the cashier of the bank to testify that the bank books showed that the bank purchased the draft for value before sending it out for collection, and that, at the time the attachment was levied, it was the property of the bank; though he had no personal knowledge of the transaction and had based his testimony upon an examination of the books of the bank. This is of necessity so in a case when the books are without the State, and beyond the jurisdiction of the court, and could not well be introduced without stopping the business of the bank.</p>

, Fall Term, 1909, of PeRquimans. On. 9 December, 1903, tbe commissioners of Dare County, North Carolina, contracted with the defendant in the above-entitled cause to build a courthouse for the county at Manteo, according to the plans and specifications then adopted and made a part of the contract between the parties, for which building the county agreed to pay to the defendant the sum of $16,500 in its bonds of the denomination of $500 each, except in the case of the last…

, at Fall Term, 1909, of Hertford. The will of M. W. Wise contained this provision: “8. All that portion of my property that I have given to my son K. E. Wise, I give in trust to my. daughter, Eula S. Smith, and my son W. B. Wise, to be managed for him and paid to him as he may need and require it, they- giving security for the faithful performance of this duty.

<p>Appeal by defendant from Ward, J., at Fall Term, 1909, of TYRRELL.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>Appeal by plaintiff from Guión, J., March Term, 1909, of' Halifax.</p>

, June Term, 1909, of Halifax. Tbe evidence tended to sbow that defendant was a manufacturing company, operating a logging road under a charter, etc., and tbat on 21 June, 1907, plaintiff, employed as fireman on defendant’s engine, was run over by said engine and seriously injured; tbat at tbe time of tbe occurrence tbe engine in question bad stopped at a trestle wbicb was being repaired, and tbe engineer and plaintiff, and others of tbe crew, went forward fifteen or twenty…

B. Allen, J., January Term, 1910, of Wake. From a judgment for defendant, tbe plaintiffs appeal. Tbe facts are stated in tbe opinion of tbe Court.

<p>Appeal from Guión, J., December Term. 1909, of CbaveN.</p> <p>Upon motion, the court adjudged tbat the complaint failed to state a cause of action against the defendant, and rendered judgment dismissing the action.</p> <p>Plaintiffs, complaining of the defendant, allege:</p> <p>1. That the defendant is, and was at the times hereinafter complained of, a corporation engaged in the fire insurance business in the State of North Carolina, as plaintiffs are advised, informed and believe.</p> <p>2. That the plaintiff A. H. McIntosh, on 14 June, 1899, married the plaintiff Sally Ann McIntosh, who was then the widow of C. R. Price, deceased, and that tbe said A. H. McIntosh and' Sally Ann McIntosh were man and wife at the times hereinafter mentioned.</p> <p>3. That the plaintiffs Sadie and Pearlie Price are the infant children of the said Sally Ann McIntosh and her former husband, the said O. R. Price, now deceased, and that the said Sadie and Pearlie being infants without general or testamentary guardian, the said plaintiff A. H. McIntosh was duly appointed their next friend by this court on 6 November, 1908.</p> <p>4. That the said C. R. Price died intestate prior to 1899, seized in fee simple and possessed of a tract of land situate in Craven County, N. 0., and described in that certain deed executed by Z. B. West and Sophia A. West, his wife, to O. R. Price, dated 28 January, 1899, and registered in the office of the Register of Deeds of Craven County, N. C., in book 99, page 413, which deed is hereby referred to and made a part of this allegation.</p> <p>5. That the said Sally Ann McIntosh and her infant children, the said Sadie and Pearlie Price, are the heirs at law of the said C. R. Price, deceased.</p> <p>6. That after the marriage of the said A. H. McIntosh and Sally Ann Price, the said A. H. McIntosh, at his own cost and expense, repaired, enlarged and constructed a house on said tract of land, which was used for several years, and until destroyed as hereinafter set out, as a home for himself and said wife and their little children, the said infant plaintiffs.</p> <p>I. That during 1907 the plaintiff A. H. McIntosh was solicited by representatives of the defendant to insure against loss by fire the said house.</p> <p>8. The plaintiff A. H. McIntosh is an unlettered man who cannot read nor write more than his own name, and that his wife and her children are uneducated people and ignorant of business matters.</p> <p>9. That, finally, plaintiff A. H. McIntosh was induced by the agents of the defendant to insure in the said defendant company, the said house in the sum of $500 against all direct loss or damage by fire for a period of three years from 18 July, 1907, at noon, to 18 July, 1910, at noon.</p> <p>10. That at the time the contract of insurance was entered into by and between the said plaintiff and defendant on 18 July, 1907, both the plaintiff and the defendant supposed that the written policy then issued named the proper beneficiaries and payees of the amount of said insurance in case of direct loss or damage by fire, and both parties supposed and believed that the policy issued by the defendant on said property was a good and valid policy of insurance; whereas, by mistake, the said 'policy named tbe said A. H. Mclntosb as beneficiary and payee. Tbe said policy is hereby referred to and will be produced by plaintiffs at tbe request of tbe defendant.</p> <p>11. That tbe plaintiff A. H. Mclntosb bad an insurable interest in said property, and, together with tbe other plaintiffs, owned said property in fee simple at all. times herein set forth, as plaintiffs are advised, informed and believe.</p> <p>12. That a premium of $10 was paid by said plaintiff A. H. Mclntosb to said defendant in consideration for said insurance at tbe time said contract of insurance was entered into, and plaintiffs have performed on their part all conditions of said contract, as they are advised, informed and believe.</p> <p>13. That on 2 October, 1908, said property insured as aforesaid by said defendant was totally destroyed by fire.</p> <p>14. That tbe plaintiffs’ loss thereby was not less than $1,000.</p> <p>15. That tbe plaintiff A. H. Mclntosb immediately thereafter notified tbe defendant of said loss, and on 23 October, 1908, furnished tbe defendant with proof of said loss.</p> <p>16. That defendant, on 24 October, 1908, denied its liability for said loss to plaintiffs, giving as a reason therefor that tbe beneficiary named in said policy was not tbe owner of tbe property insured.</p> <p>17. That plaintiffs are advised, informed and believe that notwithstanding that tbe beneficiary named in tbe policy bad at all times mentioned an insurable interest in said property, yet. tbe mutual mistake of plaintiff A. H. Mclntosb and defendant will avoid tbe policy unless tbe same is reformed and corrected so as to make all tbe owners of said property beneficiaries in said policy.</p> <p>18. That said mistake was not discovered until after said loss bad occurred and notice of said loss bad been given to the defendant.</p> <p>19. That no part of said loss has been paid, and the said sum of $500 is now due plaintiffs by tbe defendant.</p> <p>Wherefore, tbe plaintiffs pray judgment:</p> <p>1. That tbe policy of insurance issued by tbe defendant to tbe plaintiff in consideration of $10 premium paid, be reformed and tbe mutual mistake corrected, and that all tbe plaintiff owners interested in said property and insurance thereon be made beneficiaries and payees in said policy.</p> <p>2. That after such correction and reformation of said policy, tbe plaintiffs recover judgment against the defendant for the sum of $500, with interest on said sum from 24 October, 1908, till paid.</p> <p>3. For tbe costs of this action.</p> <p>4. And.for such other and further relief as the plaintiffs may be entitled to. R. A. N^nn,</p> <p> Attorney for Plaintiffs. </p> <p>Plaintiffs appealed.</p>

<p>Appeal by plaintiffs, from 0. II. Allen, J., at November Term, 1909, of Graven-.</p> <p>At tbe conclusion of the evidence of plaintiff, the defendants moved for judgment of nonsuit. His Honor sustained the motion, and plaintiffs appealed to this Court.</p> <p>In the report of this case on a former appeal, 144 N. C., 31, there will be found a statément of this controversy as presented by the pleadings, and it will not be here repeated, for the record indicates no change in the pleadings.</p>

, at Fall Term, 1909, of Herteoed. Tbe case was presented to his Honor below upon the following agreed facts: That on 6 February, 1869, H. B. Knox commenced a civil action in the Superior Court of Hertford'County, North Carolina, against Lawrence Askew, Mills Sumner and George H. Mitchell. The summons was served 1.1 February, 1869, on the defendants.

<p>Appeal from Peebles, J., February Term, 1910, of CbaveN.</p> <p>Civil action to test the validity of a bond issue by the defendant. A demurrer to the ■ complaint was sustained upon the ground that no cause of action is stated in the complaint. Defendant appealed from a judgment dismissing the action.</p> <p>The facts are stated in the opinion'of the Court.</p>

<p>Appeal by defendant from Ward, J., at Fall Term, 1909, of Hyde.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>'Appeal by defendant from Gouncill, J., at December Term, 1909, of Pamlico.</p> <p>Tbe facts are stated in tbe opinion.</p>

, at May Term, 1909, of Alamance. Tbe plaintiff sought to recover tbe penalty prescribed by Re-visal, 2631, for tbe refusal of tbe defendant to receive for shipment to Saginaw, Michigan, certain milling machinery tendered it by tbe plaintiff on 28 January, 1907, no bill of lading for said machinery being issued until 3 April, 1907.

, at November Term, 1909, of CRAVEN. At the close of plaintiff’s evidence the defendant moved for judgment as upon a nonsuit. His Honor sustained tbe motion, to which, ruling plaintiff excepted and appealed to this Court. The facts, as established by the evidence, are stated in the opinion of the Court.

, at December Term, 1909, of Beaufort, and beard on appeal from a judgment of a justice of tbe peace. Tbe action was determined by bis Honor upon tbe following statement of agreed facts: 1.

II. Allen, J., at June Term, 1909, of Mab-TIN. Tbis was an action of trespass to determine the dividing line between tie adjoining lands of plaintiff and defendant. Tie plaintiff claimed iis line to be A to D on tie map; tie defendant claimed tie line to be A to B; one of tie surveyors located it from A to 0. A was an admitted corner.

, at October Term, 1909, of ObaveN. Issues were submitted to tbe jury, and, with their responses, are as follows: 1. Did the plaintiff perform, on his part, his contract, or was he ready, able and willing to perform the same? Answer: Yes. 2. Did defendant perform the contract on its part, or was it ready to perform the same? Answer: No. 3.

<p>1. Tenants in Common — Adverse Possession — Ouster—Evidence.</p> <p>Tenants in common hold their estate by unity of possession, and the possession of one inures to the benefit of his cotenants, not only as concerns themselves, but also as to strangers; and while a tenant in common in possession may so act as to amount to an actual ouster of his cotenants and put them to their act of ejectment, it must be clear, positive, and equivalent to an open denial of the cotenants’ rights, and to putting them out of seizin.</p> <p>2. Same — Presumptions—Rebuttal.</p> <p>When the sole adverse possession of one as tenant in common is relied on to establish title by his heir at law, his declarations while in possession are competent evidence as against himself or those claiming under him to explain and qualify his possession and to show its true character; and when there is evidence that he had thus said eight years before his death that he only claimed certain interest in the locus in quo as tenant in common, and that his sisters owned the other interests, it would tend to rebut any presumption of an ouster at any time prior to such declarations.</p>

, December Term, 1909, of Maetist. These issues were submitted: 1. Was the plaintiff’s intestate killed by the negligence of the defendant company, as alleged? Answer: Yes. 2. Did the plaintiff’s intestate, by bis own negligence, contribute to bis death? Answer: No. 3. What amount of damages is the plaintiff entitled to recover? Answer: $'7,229. From the judgment rendered the defendant appealed. The-facts are stated sufficiently in the opinion of the Court.

<p>Appeal from Guión, J., November Term, 1909, of Craven-.</p> <p>■ Civil action, to recover damages for a breach of contract for the sale and delivery of sand to be used by defendant in paving the streets of New Bern.</p> <p>The following issues were submitted without objection:</p> <p>1. Hid defendant enter into- a contract with plaintiff to furnish all the sand to the defendants that they needed in paving the sidewalks of the city of New Bern? Answer: Yes (by consent).</p> <p>2. Did plaintiff and defendant contract that defendants were to pay plaintiff only for such sand as was accepted by the city engineer? Answer: No.</p> <p>3. If so, was plaintiff able, ready and willing to perform such contract on his part? Answer: Yes.</p> <p>4. Did defendants wrongfully break their contracts, as alleged? Answer: Yes.</p> <p>5. If so, what damage is plaintiff entitled to recover? Answer: $100, with interest.</p> <p>6. What damage, if any, is defendant entitled to recover by reason of their counterclaim?</p> <p>From the judgment rendered defendants appealed.</p>

<p>1. Judgment — Estoppel—Same Cause and Parties.</p> <p>A verdict and judgment in a former action is an estoppel in a subsequent 'one between the same parties for the same cause of action.</p> <p>2. Courts — Instructions—Verdict Directing — Nonsuit—Estoppel— Appeal and Error — Procedure.</p> <p>A party is estopped by a verdict by not immediately taking a nonsuit and appeal before verdict entered under an instruction by the trial judge to the jury, or upon his intimation that he would so instruct or render judgment for the other party to the action.</p> <p>3. Courts — Instructions—Verdict Directing — Burden of Proof.</p> <p>The trial judge can always direct a verdict against the party to an action on whom rests the burden, of proof, if there is no evidence or presumption in his favor.</p>

<p>1. Deceased Persons — Communications and Transactions — Services of Physician.</p> <p>Testimony by a physician, the plaintiff, that he attended deceased as such, for which he had an account against him, of the number of- visits, sum due therefor, etc., is incompetent, as being “personal transactions” with the deceased prohibited by the statute (Revisal, sec. 1631), the defendant not having testified as to such matters.</p> <p>2. Instructions — Limitations of Actions — Harmless Error.</p> <p>When by the exclusion of evidence on appeal the plaintiff cannot recover in his action, it is unnecessary for the Supreme Court to consider the charge of the court on the statute of limitations on a different branch of the case, as such, if erroneous, would be harmless error.</p>

, at October Term, 1909, of CraveN. Oivil action to recover damages for delay and injury to goods shipped over defendant road. There was evidence tending to show that tbe goods were shipped by plaintiff, manufacturers of buggies, on an open and ordinary bill of lading to one J. M. Arnold, consignee, at New Bern, N. C., and that there was wrongful delay in tbe shipment, and negligent injury done tbe goods imputable to tbe defendant, tbe A. C. L. Railroad Company.

, September Term, 1909, of Martin. Civil action to recover damages for injury caused by alleged negligence of defendant. Tbe plaintiff, a witness in bis own bebalf,' testified, in part, as follows: “I was locomotive engineer in tbe service of tbe defendant in 1904, and bad been so engaged witb tbat company for fourteen years. During tbe months of July and August, 1904, I was engaged every day except Sunday as engineer on one of tbe log trains in bauling logs.

, at July Term, 1909, of Haywood. Civil action to recover damages for injuries done to a mare, shipped over the lines of defendant company, and attributed to negligence on part of defendant and its employees.

<p>1. Notes — Equitable Owner — Possession—Defenses.</p> <p>AVhen a plaintiff sues upon a note as the equitable owner, and not as a holder in due course, it is sufficient for. him to show possession, by producing the note at the trial, whether it is negotiable or not; and he may recover upon it in his own right as a holder thereof, subject to any defenses the maker may have against the original payee.</p> <p>2. Notes — Principal and Agent — Agent’s Authority — Ratification.</p> <p>The doctrine that one dealing with an agent of limited authority must ascertain at his peril the ■ extent of the agent’s power to act for his principal, does not apply when it appears that the principal has received the benefit of the act and has acquiesced therein. In this ease the act in question was that of the manager of an incorporated drug-store company giving a note in his principal’s behalf in consideration of jewelry and a piano, sold and delivered, and upon evidence tending to show that the principal received the advantage of the transaction and did not repudiate the alleged unauthorized act, the question was one for the jury.</p>

, at December Term, 1909, of Mabtibt. Civil action, beard on return to a preliminary restraining order.

, December Term, 1909, of Pitt. Proceedings to obtain and lay off a cartway, beard on appeal from judgment and order of board of commissioners. Tbe proceedings were instituted before tbe board of supervisors of tbe township, on notice duly given and served, and on petition setting forth a statement in part as follows: “Tbe petition of tbe undersigned, MeGr.

<p>1. Attachment — Motion to Vacate Refused — Appeal and Error— Procedure.</p> <p>Upon the refusal of the trial court, on special appearance, to grant a motion to vacate an attachment on property for defects in the affidavit, and because of no service of process, an appeal will lie.</p> <p>2. Attachment — Affidavit Defective — Motion to Vacate — Procedure.</p> <p>An affidavit for the issuance of a warrant of attachment is fatally defective when merely alleging that defendant is about to remove some of his property from the State, with intent to defraud, etc,, without stating the grounds upon which the belief is based, and which does not definitely and distinctly state any fact which .would entitle the plaintiff to this process.</p> <p>3. Attachment — Process—Summons—Service—Motion to Vacate— Procedure.</p> <p>The summons in the suit must be served either personally or by publication to entitle the plaintiff to a warrant of attachment against the defendant’s property; and when this has not been done within the proper time a motion to vacate should be allowed in the lower court. The court may extend the time for serving the summons in its- discretion.</p>

B. Allen, J., at Fall Term, 1909, of Wake. Civil action to recover damages for failure to deliver a telegram within a reasonable time, heard by his Honor upon exceptions to the report of a referee to whom the cause had been referred by consent. The judge overruled all the defendant’s exceptions to the report and fully confirmed the same. To this judgment the defendant duly excepted and appealed.

<p>.PetitioN to rebear. Tbis case tried at Spring Term, 1909, of tbe Superior Court of Maetin, and reported in 150 N. C., p. 110.</p>

<p>Appeal from Guión, J., Fall Term, 1909, of Chaven, by S. W. Smallwood and Cruse-Kemper Company.</p> <p>Tbe facts are stated in tbe opinion of tbe Court.</p>

<p>Appeal by plaintiff from Guión, J., at January Special Term, 1909, of SampsoN.</p> <p>Tbe facts are stated‘in tbe opinion of tbe Court.</p>

Tbe shipment in wbicb the shortage was discovered was received at South Boston, Va., on 11 July, 1906, from tbe Stebbins-Lawson-Spraggins Company, at that place, to be carried to tbe plaintiffs at Tarboro. Tbe initial carrier was tbe Norfolk and Western Railway Company. Tbe claim in writing for tbe lost goods was filed 17 March, 1907, the value being $139.31. Tbe shipment seems to bave been promptly forwarded, and reached Tarboro without apparent delay.

II'. Allen, J., June Term, 1909, of MaetiN, from a judgment in processioning proceedings. This issue was submitted to the jury without exception: Which is the correct line between the parties, from the figures 1 to 2 and from 2 to 3, or from 1 to C, and from C to D ? Answer : From 1 to C, and from C to D. From the judgment rendered, the plaintiff appealed.

H. Allen, J., at October Term, 1909, of New HaN'oveb. Motion in tbe cause by B. E. Keith to bave refunded to bim by tbe above-named receiver $500 paid to tbe receiver on 22 May, 1902, for a tract of land sold and conveyed to said Keitb by said receiver, tbe title to wbicb bas failed. Tbe application of Keitb was referred to a referee. Tbe motion was beard before bis Honor, 0. H. Allen, judge presiding, wbo overruled tbe referee, and denied tbe motion.

, at November Term, 1909, of LeNOir. Tbis was an action to obtain tbe construction of tbe will, beard on appeal from tbe Clerk of tbe Superior Court of New. Hanover County. E. S. Pigford died 16 January, 1907, in New Hanover County, leaving a last will and testament, which was duly admitted to probate, in tbe following words: North Carolina — New Hanover County.

, at January (Special) Term of Samp-SON. This was a civil action heard upon exceptions to the report of the referee theretofore appointed in the action, by consent. His Honor, upon the exceptions filed, reversed one of the findings of the referee, approved others, and rendered .judgment that the plaintiff, W. E. Baggett, the only party plaintiff in interest, take nothing by his action and pay the costs of the .-action. The plaintiff excepted and appealed.

, at January (Special) Term, 1910, of SAMPSON. Tbe evidence offered at tbe trial by tbe plaintiff, tbe defendants offering no evidence, disclosed tbe following facts: G. W. Hobbs, tbe grandfather of plaintiffs, was, prior to 8 May, 1893, tbe owner in fee and in possession of several tracts of land in Sampson County; on tliat day be made a distribution of bis lands among bis seven children, conveying to them, by sepai-ate deeds, certain described tracts of land.

Appeal by Thomas B. Pierce from Guión, J., at January Term, 1910, of New IIaitover. This appeal presents the following facts for consideration: The defendant, an insolvent corporation, was placed in the hands of Cameron F. McRae, receiver.

, January (Special) Term of Samp-SON. These issues were submitted: 1. Is the plaintiff the owner of and entitled to the possession of the property described in the complaint ? Answer: Yes. 2. What was the value of the property at the time of said seizure? Answer: $234.64. 3. Is defendant indebted to plaintiff; if so, in what amount? Answer: $670.20, with interest from 9 September, 1908. From a judgment for plaintiff the defendants appeal.

H. Allen, J., at November Term, 1909, of LENOIR. Tbis action is brought to recover balance due on a contract for the sale of a piano. The defendants pleaded a counterclaim, based upon an alleged breach of -a contract of warranty, in writing as follows: “This is to certify that pianoforte style ‘S,’ mahog.

<p>1. Injunction — Parties—Strangers—Damages—Evidence.</p> <p>Upon the dissolution of the defendant’s restraining order, evidence of damages sustained'by a corporation, not made a party, claimed upon the ground that plaintiff was its president and a stockholder and held the tocios in quo for it under an express trust, is properly excluded, the issue of title being only between the plaintiffs and defendants, and there being nothing on record to put the obligors on the defendant’s bond upon notice of any liability to the corporation.</p> <p>2. Timber Deeds — Injunction—Measure of Damages — Questions for Jury.</p> <p>The jury having established the plaintiff’s right to cut timber on the locus in quo under a timber deed, running for a period of ten years, and a restraining order, withholding such right for a period of several years, being dissolved, it was error for the trial judge to charge the jury that only nominal damages were recoverable by the plaintiff. It was for the jury to say, upon competent evidence, whether the reduction of the term for cutting the timber had caused damage to plaintiff.</p>

, at September Term, 1909, of Mas-tín, in a processioning proceeding. Tbe following issue was submitted to the jury without objection : What is the true line between the lands of the plaintiffs and those of the defendant? Answer: That the dividing line between E. P. Jackson and wife, plaintiffs, and Seth Williams, defendant, is the dotted line as shown on map from big 0 to D and E. , Defendant moved for new trial. Motion overruled.

<p>1. Insurance — Policies—Proof of Loss — Denial of Liability — Waiver.</p> <p>A denial of liability under its policy by a fire insurance company for a loss occasioned by tbe burning of tbe property insured is a waiver of tbe stipulation in tbe policy requiring tbe insured to file with the company, within sixty days, a notice of proof of loss; and tbe company may not set up a plea that tbe insured procured tbe burning of the property, deny liability and avoid payment under its contract, by proving matters relating to this stipulation.</p> <p>2. Same — Interpretation—Policies, How Construed.</p> <p>To ascertain tbe meaning of a contract of insurance tbe courts will construe tbe language most strongly against tbe company; and there being no words of forfeiture in a contract of insurance to that effect, the failure of the insured to file proofs within sixty days after tbe occurrence of the fire does not have tbe effect of forfeiture when tbe company has denied all liability under its contract. (derringer v. Insurance Go., 133 N. C., 407, cited and approved.)</p> <p>3. Same — Arbitration.</p> <p>Tbe failure to perform a promise in the contract as to arbitration which refers only to tbe ascertainments of tbe amount of loss, does not work a forfeiture of tbe policy, upon the same principles, when the company denies all liability.</p> <p>4. Insurance — Ownership—Title—Bill of Sale — Evidence.</p> <p>When an insurance company seeks to avoid liability under its policy for a loss, by denying the insured’s ownership of tbe property, it is competent for the insured to put in evidence a bill of sale thereof made to him, in order to show his title.</p> <p>5. Pleadings — Inconsistent Pleas — Defenses.</p> <p>Inconsistent pleas may be made in defense to an action, but tbe defendant cannot succeed as to both, when one naturally destroys the other.</p>

H. Allen, J., at August Term, 1909, of Sampson. This action was brought to recover damages for defendant’s alleged cutting of trees on the plaintiffs’ land under sizes specified in bis timber deed. The facts are sufficiently stated in the opinion, taken with reference to the plaintiffs’ exceptions, as follows: (The plaintiffs’ exceptions are set out in the original.) Both sides appealed.

<p>Appeal by defendant from W. R. Allen, J., at September Term, 1909, of Wayne.</p> <p>Tbe fácts are stated in the opinion of the Court.</p>

, at the January (Special) Term,. 1910; of PendeR. Civil action to recover damages and restrain defendants from committing trespass, etc., on realty by cutting down timber, etc. In response to issues submitted, the jury rendered the following verdict: 1. Is the plaintiff the owner of life estate, by reason of' dower,' in the estate of her former husband in the lands described in the complaint? Answer: Yes. 2. Have the defendants trespassed on same? Answer: Yes. 3.

<p>CONTROVERSY submitted without action- and determined before Coolce, J., at February Term, 1910, of Sampson.</p> <p>There was judgment for plaintiff, and defendant excepted and appealed.</p>

H. Allen, J., at August Term, 1909, of SAMPSON. Civil action to recover on a judgment rendered in plaintiff’s favor, at October Term, 1906, against W. A. Johnston, administrator of W. N. Peden. On issue submitted, the jury rendered the following verdict: “Was the judgment of October Term, 1906, in controversy, obtained by fraud and collusion? Answer: No.” Judgment on verdict for plaintiff, and defendants excepted and appealed.

Civil action to determine the title to- land, beard on case agreed. From the facts, as stated, it appears that on 1 January, 1850, one Isaac W. West, of Duplin County, N. C., conveyed to on^e John D. Powers, of New Hanover County, N. C., three tracts of land, properly describing the same, which said deed was duly recorded.

, at Fall Term, 1909, of Chaven. Civil action to recover on three insurance policies.

H. Allen, J., at December Term, 1909, of New HaNoyeR. Civil action beard on general demurrer to complaint. There was judgment overruling tbe demurrers and allowing tbe defendants to answer, and some of tbe defendants excepted and appealed.

, at Fall Term, 1909, of WASHINGTON. Tbe suit was to recover damages for injuries to a certain borse, owned by plaintiffs and shipped over defendant road in June, 1908, from Roper, N. 0., to Norfolk, Ya. There was evidence tending to show that the horse, a race horse and valuable animal, was shipped over defendant road at the time stated, and was greatly injured by reason of negligence on the part of the railroad company or its agents having charge of the shipment.

H. Allen, J., at February Term, 1909, of Wake. Civil action beard upon an agreed statement of facts, substantially as follows: Plaintiff contracted to sell to tbe defendant ten bonds of tbe State of North Carolina, par value $1,000 each, issued in pursuance of chapter 150, Public Laws 1909, for the price of $10,550.- The bank refused to take and pay for the bonds, alleging that the jdaintiff stated to the. defendant at the time said agreement to purchase was entered into…

<p>Appeal from W. R. Allen, J., at June Term, 1909, of LeNOIR.</p> <p>Tbe facts are stated in tbe opinion.</p>

Appeal by I. P. and J. L. McLean, from Lyon, J., at December Term, 1909, of Robeson. This was a motion in a special proceeding. Pending the proceeding and after order 'of sale, certain of the cotenants conveyed for value their several interests to A. D. McLean. He did not have his deeds recorded nor did he then become a party to the proceedings.

<p>Appeal by defendant from 0. JS. Allen, J., at November Term, 1909, of LeNOIR.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>Appeal by plaintiffs from Guión, J., at January (Special) Term, 1910, of SampsoN.</p> <p>Tbe facts are stated in tbe opinion of tbe Court.</p>

<p>Appeal by plaintiff from O. II. Alien, J., at October Term, 1909, of New HaitoveR.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal by plaintiff from Lyon, J., at October Term, 1909, of CUMBERLAND.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Judgment, Tender of — Court Costs — Insufficiency of Tender.</p> <p>In a justice’s court judgment was rendered against two defendants, from which one only appealed, and, pending the appeal, tendered in cash as a satisfaction of the judgment as to himself a less sum than the amount of the'justice’s judgment, hut more than that ultimately rendered in the Superior Court against him. Assuming that such an offer of compromise of this case under Revisal, sec. 860, can be made, it was not made in behalf of both defendants, not commensurate with plaintiff’s right of judgment against both, and insufficient to tax plaintiff with cost in the Superior Court.</p>

.ÁRKEAL from Guión, J., at January Term, 1910, of SampsoN. Action on a note. Tbe execution of tbe note dated 25 May, 1907, payable to' plaintiff for $288, was admitted, and also payment of $144 on 12 September, 1907. Tbe defendants pleaded a counterclaim. At close of all tbe evidence tbe court tben sustained a motion to- nonsuit defendants upon counterclaim, upon tbe ground tbat there was no’ sufficient evidence to support it.

, at October Term, 1909, of Cumbee-land. Civil action to recover penalty of tbe defendant carrier for refusal to receive, for shipment, lumber tendered by tbe plaintiffs to defendant’s agent at Made, N. 0., for shipment to Henderson-Jarrett Company at Norfolk, Ya., and refusing to issue a bill of lading for tbe same, after due demand by tbe plaintiffs, and for damages suffered in consequence of such refusal.

, at January Term, 1910, of SampsoN. Civil action to recover a penalty for violation of what is commonly called the Jim Crow car law, embodied in Revisal of 1905, secs. 2619 to 2622, inclusive. The following is the evidence of the plaintiff: *'On Wednesday morning, 29 December, 1908, we went to Ivanhoe, a station on defendant’s railroad. There were four of us, all white, and we bought tickets at Ivanhoe for Tomahawk, the nearest station to our homes.

B. Allen, J., at Fall Term, 1909, of LeNoiR. Civil action heard on demurrer. From the complaint it appeared : “2.

, heard at chambers, in Nance County, 8 October, 1909, by consent, in an action arising in Edgecombe. This was a civil action instituted in the Superior Court of Edgecombe County, on motion to continue the restraining order issued. His Honor continued the restraining order and enjoined the defendants from putting the agreement hereinafter stated into effect, or taking any action thereunder.

J. Adams, J., at November Term, 1909, of Chatham. Tbe plaintiff is tbe administrator of Mrs. Susan Johnson; ¿tbe defendants are tbe administrators of Josbua Johnson. Joshua Johnson and Susan Johnson were husband and wife. Tbe former died 10 October, 1906; tbe latter 13 July, 1907. They mere married 27 June, 1877.

<p>Petition to Rehear — Former Opinion — Interpretation.</p> <p>In this petition to rehear it is held that the former decision declared only that the court had no power to invest the fund, under the facts and circumstances of the case, and that the land must be sold and the heirs reimbursed,' subject to any legal charges and liens upon the fund which a court of law or equity would allow in the further disposition of the case.</p>

<p>Appeal from W. J. Adams, J., at September Term, 1909, of Moore.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

, at July Term, 1909, of Columbus. Civil action beard on demurrer to tbe complaint. Tbe plaintiff complains that while be was an employee of tbe defendant be was taken sick and was received into tbe hospital of tbe Relief Department of tbe defendant at Rocky Mount, to be there operated upon and attended to.

<p>Tenants in Common — Partition—Quantity of Interest — Estoppel— Deeds and Conveyances — Correction.</p> <p>The quantity of the estate held by* tenants in common can be litigated and determined in proceedings for partition; and a judgment therein is a complete estoppel in a suit by one of them to establish that his cotenant held a less interest in the land in common, by reason of the mistake of the draftsman in writing the deed under which he claimed.</p>

J. Adams, J., at November Term, 1909, of UNION. The action was brought to reform a mortgage and to recover damages for breach of the reformed contract, and for usury. His Honor instructed the jury to answer the issue as to mistake in the mortgage in the negative; and the contest was waged on the allegations of usury.

, at February Term, 1910, of UNION. Civil action brought by plaintiffs to recover the penalty for usury given by Revisal, sec. 1951, if brought within two years. Section '396. The following issues were submitted: 1.

<p>1. Penalty Statutes — Carriers of Goods — Failure to Pay Claim— Amendments — Discretion. *</p> <p>In an action against tlie carrier to recover the penalty prescribed by Revisal, sec. 2634, for the failure of the company to settle a claim, it is in the discretionary powers of the trial court to allow plaintiff, during the trial, to amend so as to- show that the claim for damages had been agreed upon, though not settled, it being necessary for plaintiff to prove the exact amount of the damage claimed in order to recover the penalty, of which the defendant was put upon notice by the nature of the suit and by •the statute.</p> <p>2. Penalty Statutes — Carriers of Goods — Failure to Pay Claim— Subsequent Voluntary Payment.</p> <p>In an action to recover the penalty for failure of the carrier to settle a claim for damages under Revisal, see. 2634, the mere voluntary payment of the damages after the statutory time is neither a forfeiture nor a satisfaction of the penalty.</p>

, at February Term, 1909, of Guilfobd. Civil action for damages to one borse, called “Jay Bird’s Delight,” shipped from Lynchburg to Greensboro, under a “live-stock contract” of carriage, which provided, among other things, that the shipper “will indemnify and save harmless the railroad company against claims arising out of loss or injury to said live stock accruing from * * * (c) heat, suffocation or other ill effects of being crowded in cars,” and which limited the amount…

, at October Term, 1909, of Guileobd. Civil action beard before a justice of tbe peace to recover of a feme covert goods alleged to bave been sold and delivered to her husband, while she was conducting a mercantile business without displaying the sign required by Revisal, sec. 2118.

<p>Processioning — Dispute Lines — Survey—Procedure.</p> <p>WLen the petitioner in proceedings for processioning or locating certain lines between bis own and adjoining lands, before tbe clerk, alleges that tbe lands of a party to tbe proceedings are adjoining bis, wbicb is admitted by that party, but he denies all tbe allegations of the petition which conflict with his title and tbe description of- the line be sets up as tbe true one, without further denial of tbe petitioner’s title, tbe issue so raised is not one of title, but of boundary, and an order of the clerk that the county surveyor survey the boundaries in dispute, etc., and make-report, is in accord with the statute. Revisa], sec. 325.</p>

<p>Appeal by plaintiffs from 0. H. Allen, J., at November Term, 1909, of LeNoir. Tbe facts are stated in tbe opinion of tbe Court.</p>

<p>1. Optometry — Board of Examiners — Judicial Powers — Interpretation of Statutes.</p> <p>The Board of Examiners in Optometry, established by chapter 444, Laws of 1899, has authority to pass upon the proof required from an applicant to practice without examination,, under section 6, to the effect that he had been engaged in the practice two years prior to the passage of the act, etc., this authority being construed from the requirement that he shall “file an affidavit as proof (of the facts) with the board.”</p> <p>2. Optometry — Without Examination — Residents—Interpretation of Statutes.</p> <p>The provisions for one to practice optometry in North Carolina without an examination from the board of examiners, who has engaged in its practice here for two years prior or next preceding the date of the passage of the act, apply only to residents of the State, such being the construction of the language of section 8, “that any recipient of a certificate of registration shall present the same for record to the clerk of the Superior Court of the county in which he resides, etc.”</p> <p>3. Optometry — Board of Examiners — Judicial Powers — Mandamus.</p> <p>The statute confers .upon the Board of Examiners in Optometry authority to pass upon the proof required of one desiring to practice without an examination, and, having found from the petition that the applicant was not so entitled under the requirements of the act, a mandamus will not lie to compel the board to issue the certificate.</p>

<p>Appeal from Long, J., at August Term, 1909, of Rowan.-</p> <p>Tbe plaintiff sued to recover upon an accident policy issued to him by tbe defendant on 21 March, 1902, tbe amount stipulated to be paid for tbe accidental loss of a foot. Tbe accident resulting in tbe injury to plaintiff occurred on 12 July, 1902. Action was begun by plaintiff on 28 January, 1904, wbicb was dismissed at August Term, 1906, of tbe Superior Court, for failure of plaintiff to comply witb tbe terms imposed upon bim for a continuance granted at a previous term. Tbe present action was begun 29 April, 1907.</p> <p>Tbe policy sued upon contained tbe following stipulation: “No legal proceedings shall be brought to recover any sum hereby insured, within ninety days after receipt of proofs at Hartford, nor at all, unless commenced within one year from tbe ,date of tbe alleged accident, as to death, loss of limb, or sight, within six months from tbe filing of said claim witb tbe company as to total disability,” Tbe plaintiff became of age between tbe time of injury and tbe bringing of tbe first action. Tbe failure to bring the action within tbe stipulated time was, among other things, pleaded as a defense to tbe action by tbe defendant. Tbe following issues were submitted by bis Honor:</p> <p>1. Were tbe plaintiff’s injuries caused by tbe unnecessary exposure of tbe plaintiff to obvious danger or obvious risk? Answer: No.</p> <p>2. Did tbe plaintiff commence bis action within a year from tbe time of tbe accident wbicb caused tbe injury? Answer: No.</p> <p>3. What sum, if any, is plaintiff entitled to recover? Answer: $266.66, witb interest from tbe time due under tbe policy.</p> <p>Tbe judgment rendered by bis Honor contains the following: “Tbe court, pending tbe trial, reserved tbe question of law as to whether or not tbe plaintiff could recover, and upon tbe consideration of all tbe facts, tbe court is of tbe opinion that tbe plaintiff, in affirming tbe contract, wbicb appears to be a single one, cannot affirm in part and disaffirm in part, and in view of the language of tbe policy quoted, is of tbe opinion that, upon the whole record, tbe plaiptiff cannot recover. Tbe court thereupon enters a judgment of nonsuit.” Tbe plaintiff excepted and appealed to this Court.</p>

Appeal front O. II. Allen, J., at August Term, 1909, of SAMPSON. The following issues were submitted to the jury: 1. Was plaintiff’s intestate injured by the negligence of the defendant, as alleged? Answer: Yes. 2. If so, was the plaintiff’s intestate guilty of contributory negligence, as alleged? Answer: No. 3. What damage, if any, is plaintiff entitled to recover? Answer: $725.

, at December Term, 1909, of Beau-eobt. Action to recover the penalty for usury under section 1951, Revisal.

plaintiff’s appeal. Appeal from Ward, J., at December Term, 1909, of Beau-eobt. Civil actio'll to recover $280 alleged to have been paid under duress. The facts are as follows: On 3 December, 1900, plaintiff made a contract with defendants to purchase a piece of land containing 13 82-100 acres, for $483.72, and to give in payment ten notes of $46.99 each, one to be paid annually, secured by mortgage on land, and the balance in cash.

Civil action to recover permanent damages on account of tbe entry and appropriation by defendant of plaintiff’s lands.

<p>1. Pharmacist — Sale of Cocaine — Revocation of License — Authority of Board.</p> <p>The provision of chapter 77, Laws 1907, as amended by chapter 713, Laws 1909, that the license of a pharmacist convicted of the unlawful sale of cocaine, etc., shall be revoked, leaves the board without authority to renew the license of a pharmacist so convicted upon the tender of the prescribed fee of $2.</p> <p>2. Same — Mandamus.</p> <p>A mandamus will not lie to compel the Board of Pharmacy to renew the license of a pharmacist who has been convicted of the sale of cocaine, contrary to the provisions of the statute, to which license the board, for that reason, found he was not entitled.</p> <p>I-Ioke, J., concurs in result.</p>

<p>Appeal by plaintiff, from G. W. Ward, J., at January Term, 1910, of Guilpobd.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>1. Nonsuit After Verdict — Verdict Sufficient — Judgment.</p> <p>In an action to establish the boundary line between the adjoining lands of the parties, wherein issues were specifically submitted in accordance with the contention of each as to the true line, a judgment of nonsuit should not be granted as to one of them at his request after verdict rendered, which finds only the issue which establishes the line as claimed by his adversary, as a valid judgment may be entered ton the finding of the jury on that issue.</p> <p>2. Same — Formal Defect.</p> <p>When issues have been submitted to the jury in accordance with the contentions of the parties in an action to establish the boundary line between their adjoining lands, and the jury has answered only one issue, deeming it to be sufficient, the party claiming the line to be that as called for in the other issue cannot take a nonsuit, for if the failure of the jury to answer this issue made a defective verdict, it was cured by the subsequent logical answer of the jury thereto, having been instructed by the judge to answer it “Yes” or “No.”</p> <p>3. Issues — Assent—Pleadings—Objection and Exception.</p> <p>A party assenting to the submission of an issue not raised by the answer, and upon which there was evidence, will not be heard to complain after verdict rendered therein.</p>

G. Ward, J., at January Term, 1910, of • Guileord. Civil action, beard on appeal from a justice’s court.

<p>Appeal from Lyon, J., at March Term, 1910, of RiohmoND.</p> <p>Controversy without action, determined on case agreed. From the facts agreed upon, it appeared:</p> <p>1. That on the first Monday of December, 1909, the board of commissioners of the county of Richmond, and the defendant, The Farmers Bank, entered into a written contract by which the said board of commissioners agreed to sell to said bank, and said bank agreed to buy from said board of commissioners, $15,000 of 6 per cent road bonds, which the said board of commissioners proposed to issue for and on behalf of Beaver Dam Township in said Richmond County; said bonds were to be dated 1 January, 1910, and were to mature thirty years from date. Said bonds were to have been issued by virtue and in pursuance of chapter 512 of the Public Laws of North Carolina, session of 1907, entitled “An Act to Provide for the Improvement of the Public Roads of Richmond County,” and of an election duly and regularly called and beld and carried in said Beaver Dam Township. Said election being held on 12 October, 1909.</p> <p>2. That the defendant, The Farmers Bank, has declined and refused, and now declines and refuses, to carry out said contract by taking up said bonds and paying the purchase price as agreed in said written contract.</p> <p>That the reason why the said The Farmers Bank has declined to carry out said contract is, that it contends that the said act, authorizing said bonds, to wit, chapter 512 of the Public Laws of 1907, did not pass the General Assembly of North Carolina as required by Article II, see. 14, of the Constitution of North Carolina, in that the Journal of the Senate for the session of 1907 did not originally show that the “ayes” and “noes” on the passage of said bill on said third reading were entered upon said journal for the session of 1907.</p> <p>The facts with reference to the passage of said bill, as will appear from said journal, are as follows:</p> <p>The said act was House Bill 1203, and was introduced into the House by Hon. W. L. Parsons, member of the House from Richmond County, and was entitled “A Bill to be Entitled An Act to Provide for the Improvement of the Public Roads of Richmond County.” This bill passed the House of Representatives, as required by said Article II, sec. 14, of the Constitution, and was ratified in the House of Representatives on 2 March, 1907. See journals of the House of Representatives, 1907, pages 406, 514, 609 and 769.</p> <p>The bill passed its first reading in the Senate on 28 February (see page 619); its second reading 1 March (page 665), as required by the Constitution, and was ratified in the Senate on 2 March (page 685).</p> <p>The bill did regularly pass its third reading in the Senate of 1907, though the same was inadvertently not recorded on the journal, and at the special session of the General Assembly, held in Raleigh, in January, 1908, which was a special session called by the Governor, the Senate undertook to correct the journal for the year 1907, and passed a resolution declaring that there was an error in the journal of 1907, setting forth in full that said bill passed the Senate as required by the Constitution, and recommended a correction of the journal by the clerk, which was made, all of which will more fully appear by reference to page 21 of the Senate Journal of the Special Session of 1908, and the original Senate Journal of 1907 as corrected.</p> <p>It is agreed that the printed journals of 1907 and 1908, to-getter witb the original journal as corrected, and certified copy of entries on bill in the Senate, shall be a part of this case.</p> <p>The defendant, The Farmers Bank, contends that the journal of 1907 could not be corrected at the special session of 1908, and that for this reason the act authorizing said bonds did not ]oass the General Assembly as required by Article II, sec. 14, of the Constitution, and that, therefore, the plaintiff has no right to issue said bonds, and, if issued, they would be invalid and void, and for that reason the defendant declines to carry out said contract.</p> <p>And on these facts the judgment of the court is prayed, etc.</p> <p>The court below being of opinion that the Legislature had a right to correct its journals, and that the bonds in question would constitute a valid indebtedness, entered judgment for plaintiff, and defendant excepted and appealed.</p>

J. Adams, J., at October Term, 1909, of ÁNSON. Civil action to recover land. The feme plaintiff claimed title under tbe will of ber father,. H. B. Hammond, who died in 1883; the part of the will directly relevant to the inquiry being as follows: “Item 8. I give to my son-in-law, W. 0.

<p>Appeal from Long, J., at November Term, 1909, of Ibedell.</p> <p>On issues submitted tbe jury rendered tbe following verdict :</p> <p>“1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.</p> <p>“2. Did tbe plaintiff by ber own negligence contribute to ber own injury? Answer: No.</p> <p>“3. What damages, if any, bas tbe plaintiff sustained? Answer: $700.”</p> <p>Motion to dismiss as on judgment of nonsuit formally entered and renewed at close of entire testimony; motion denied, and defendant excepted. Judgment on verdict for plaintiff, and defendant excepted and appealed. Tbe facts are further stated in tbe opinion of tbe Court.</p>

, at February Term, 1910, of UnioN. Civil action for damages for wrongfully closing a public street. These issues were submitted: 1. Is the feme plaintiff the owner of the lots and property, as alleged in the complaint? Answer: Tes. 2. Has the defendant wrongfully closed, or caused to be closed, that portion of Church Street on which feme plaintiff’s property abuts, as alleged in the complaint? Answer: Tes. 3.

, at November Term, 1909, of Surry. Civil action to recover damages for personal injury. A motion in apt time was made to nonsuit the plaintiff, and was sustained. The plaintiff excepted and appealed. The facts are sufficiently stated in the opinion of the Court.

Long, J., at October Term, 1909, of Davie. Civil action tried on appeal from a judgment of a justice of tlie peace. The plaintiff sued on three notes: two of $40 each and one of $33.25, executed by defendants on 16 July, 1906, for the purchase price of a second-hand self-feeder for a separator.

, at July Term, 1909, of Ashe. Civil action beard on appeal from a justice of tbe peace. Tbe facts are stated in tbe opinion of tbe Court.

B. Allen, Jat October Term, 1909, of Waee. Tbe plaintiff brought fhis action to recover damages for personal injuries wbicb be alleged resulted from tbe negligence of tbe defendant company, while be was in tbe discharge of bis duties as roadmaster. The defendant denied tbe allegations of tbe complaint as to its negligence, and set up as a defense certain releases executed by tbe plaintiff.

Appeal, from RockiNGham, by plaintiff from judgment upon return to restraining order heard by Long, J., 10 March, 1910, at chambers in Statesville, by consent. The facts are stated in the opinion of the Court.

PROCEEDINGS, from Alamance, to obtain tbe construction of tbe last will and testament of Governor Tbomas M. Holt, deceased, beard by consent, a jury trial baving been formally waived at Hillsboro, N. 0., on 15 March, 1910, before bis Honor, W. J. Adams, J., bolding tbe-courts of tbe Ninth Judicial District. Tbe facts pertinent to the inquiry, found on tbe bearing to be true, are stated in tbe original complaint as follows: “1.

<p>County Commissioners — Special Service — Compensation.</p> <p>A member of tbe board of county commissioners wbo, under tbe direction of the board, inspected and reported upon a bridge over a stream where it crossed the public road, with recommendations, cannot recover in his action for the services rendered or mileage; he is forbidden to- do so as a county commissioner .under Revisal, 2785, and is indictable if claiming compensation for extra services under either an express or implied contract with the board. Revisal, 3572.</p>

<p>Appeal from Ward, J., at March (Special) Term, 1910, of Guilrobd.</p>

J. Adams, J., at October Term, 1909, of ÁNSON. These issues were submitted: 1. Did the defendant wrongfully refuse to stop its train at McFarland to permit the plaintiff to alight therefrom, as alleged in the complaint ? Answer: Yes. 2. Was the plaintiff injured through the negligence of the defendant, as alleged in the complaint ? Answer: Yes. 3. Did the plaintiff by his own negligence contribute to his injuries? Answer: No. 4.

<p>Negligence — Automobiles—Public Thoroughfares — Reasonable Requirements — Unusual Noises — Frightened Horses.</p> <p>The use of an automobile’ upon a public thoroughfare imposes upon the chauffer the duty to observe that degree of care in its operation which is commensurate with the risk of danger thereby caused to others; and when the chauffer commences to crank his machine for the purpose of starting in close proximity to harnessed horses standing quietly in charge of a driver, without giving any previous warning, and thereby causes them to run away and inflict the injury complained of, actionable negligence is established.</p>

, at January Term, 1910, of SampsoN. This was a civil action heard upon. demurrer to the complaint. The action was originally brought by J. H. Hudson, “on behalf of himself and all other bondsmen of A. W. Aman who will come in and aid in the prosecution.” Later, by an order made at February Term, 1908, Levett Warren, J. H. Turling-ton and C. H. Fisher were made parties plaintiff, and A. W. Aman was made a party defendant.

J. Adams, J., at February Term, 1910, of Guilford. Civil action, beard on motion for judgment upon tbe pleadings. His Honor denied tbe motion, and plaintiff appealed. Tbe facts alleged and admitted in tbe pleadings and exhibits are substantially as follows: Tbe High.

, at November Term, 1909, of Cabab-eus. At tbe conclusion of plaintiff’s evidence defendant moved for judgment as of nonsuit. Motion allowed. Plaintiff excepted, and appealed to this Court.

This action was brought by the plaintiff to recover damages for the interference, by the defendant, with its water rights in the Roanoke River, and to enjoin the defendant from further interference therewith. The case was heard in the court below upon the following facts, which were agreed upon by the parties .and submitted to the court for its decision: 1. The plaintiff and the defendant are corporations duly chartered and organized under the laws of this State. 2.

<p>Appeal by defendant from Webb, J., at October Term, 1909, of CABARRUS.</p> <p>Tbe facts are stated in tbe opinion of tbe Court.</p>

<p>Telegraphs — Written Claim — Rights of Third Persons.</p> <p>A written claim filed with a telegraph company in behalf of the sendee of a message only, is not sufficient in an action brought in behalf of Sye, the message reading, “J. is dead. Tell Sye. Can you come at once? Answer.” Nor is this affected by an agreement between the sendee and Sye that the farmer would communicate the information to the latter, which was unknown to the company.</p>

<p>Appeal from- W. B. Allen, J., at February Term, 1909, of Duplin.</p> <p>The facts are stated in tlie opinion of tbe Court.</p>

<p>Appeal from E. B. Jones, J., at December Term, 1909, of Fobsyth.</p> <p>This was a civil action in the Superior Court, brought by Smoak & McCreary, partners, against John Sockwell; action was brought for recovery in favor of the plaintiff against the defendant in the sum of $210 for the conversion of a mule, as alleged in complaint.</p> <p>The jury rendered the following verdict:</p> <p>1. Are plaintiffs the owners and entitled to the possession of the mule, buggy and harness, described in the pleadings? Answer: Yes.</p> <p>2. Did the defendant receive into his possession the mule, buggy and harness, and convert them to his own use ? Answer: Yes.</p> <p>3. What was the value of mule, buggy and harness at the time of the sale by defendant and conversion of same to his use ? Answer: $125.</p> <p>4. In what amount, if anything, is defendant indebted to plaintiffs? 'Answer: $100.</p> <p>Judgment on verdict for plaintiff, and defendant excepted and appealed.</p>

B. Allen, J., at November Term, 1909, of IÍARNETT. There was evidence on the part of plaintiff which tended to show.that on the night of 4 June, 1906, plaintiff, with a comrade, one J. H. Stewart, left the village of Benson, a station on defendant’s road, and were walking along the track towards Dunn; that they left Benson about 10 :30 P. M., just after the regular train had passed, and at a point about 2% miles from Benson, Stewart said, “Let’s rest,” and sat down on a…

, at Fall Term, 1909, of Davie. Tbe action was to recover on three notes, aggregating $365, tbe purchase price of certain threshing machinery, chiefly a steel separator and attachments, secured by chattel mortgage on the separator, etc. The answer denied liability on the notes, set up in detail many instances in which the machinery had failed to come up to specifications, and alleged fraud in the procurement of the notes and mortgage, etc. .

<p>Issues — Immaterial Matters — Narrative—Objections and Exceptions —Evidence Withdrawn — Error Cured.</p> <p>The issue in this ease being only as to whether the agent of defendant, sent on complaint of plaintiff to remedy defects in a machine purchased by him, had rendered' the machine valueless and totally unfit to do satisfactory work, exceptions taken to matters of warranty in tlie original contract, etc., are irrelevant, for suck matters were merely narrative leading up to the cause of action; and admission of improper evidence tending to show a verbal guarantee by the agent at the time of sale was cured by the court’s striking it out and withdrawing it from the consideration of the jury.</p>

<p>1. Railroad — Baggageman — Scope of Employment — Master and Servant.</p> <p>Tiie mere fact that plaintiff, a baggageman employed on defendant’s train, received the injury complained of caused by a head-on collision, when he had stepped into the express ear from the baggage car, does not affect his employment at the time, or the responsibility of the defendant.</p> <p>2. Railroads — Negligence Presumed — Head-on Collision.</p> <p>A presumption of defendant railroad company’s negligence is raised from the fact that the injury complained of was received by an employee as baggageman in a head-on collision.</p>

Civil action to recover damages for malicious prosecution. There was evidenee^ending to show that on or about 25 April, 1908, the defendant bad caused tbe arrest and imprisonment of plaintiff on a charge of having obtained from said defendant, as landlord, with intent to cheat and defraud, advances and supplies to plaintiff as tenant.

B. Jones, J., at January Term, 1910, of OABARRUS. Proceedings to recover damages caused by tbe building of a road, instituted by petition of plaintiff to tbe clerk of tbe Superior Court, 16 April, 1909. Tbe jury rendered tbe following verdict: 1. Did tbe plaintiff institute tbis proceeding to recover damages witbin six months after tbe road in controversy was completed across and over plaintiff’s lands ? Answer: Yes. 2. What damage, if any, has the plaintiff sustained?

<p>Appeal from Gouncill■, J., at November Term, 1909, of Caldwell.</p> <p>The facts are stated in the opinion of the Court.</p> <p> </p> <p> </p>

, at November Term, 1909, of Caldwell. Tbis is a proceeding under tbe entry laws. Tbis issue was submitted: 1. Is tbe land described on tbe map as tbe Clarke & Kirby entry, vacant and subject to entry? Answer: Yes. ■ Tbe court rendered judgment for Clarke & Kirby, tbe entrants, from wbicb tbe protestant, tbe Wilson Lumber Company, appealed.

Civil action, brought to recover ..possession of a newspaper, called The Hickory Democrat ” together with the printing plant described in the complaint. These issues were submitted: 1. Is the plaintiff the owner and entitled to the possession of the property described in the complaint ? Answer: Yes. 2. What is the value of the property described in the complaint? Answer: $1,800. From the judgment rendered defendant appealed. .

This was a controversy without action submitted to Guión, J., from Wahe, from a judgment adverse to the plaintiffs, filed 19 April, 1910, and they have appealed to this Court. Omitting the merely formal parts of the submission, the facts agreed to as determining this controversy are thus stated: 1.

<p>Appeal from Webb, J., at November Term, 1909, of Meck-LENBURG.</p> <p>At the close of plaintiff’s evidence defendant moved for judgment as of nonsuit, and renewed this motion at the close of the entire evidence. The motion was allowed, and plaintiff excepted and appealed.</p> <p>The facts established by the evidence are as follows: Horace Phillips, the plaintiff’s intestate, a boy between 15 and 16 years of age, of good size and apparently sound and healthy, a good swimmer, was drowned chi the afternoon of 5 July, 1908, in a lake or pond in Latta Park, in the city of Charlotte. The park is open to the white, public, and so is the lake or pond; the only restriction placed upon the use of the lake was that bathers should not go in nude. The lake was about 100 yards long by about 100 feet wide, 'and was situate iu a part of tbe park frequented .by ladies, children and men. Driveways and walkways were around and near the pond, so that the lake was easily visible to persons in the park. In 1907 complaint was made that the boys were bathing in the pond in a nude condition, and the defendant Orr, then chief of police, was directed by the board of public safety of the city, having charge and direction of its police force, to put a stop to nude bathing in the lake.The defendant stationed a policeman in the park to prevent this. Being appealed to by some young men, the defendant Orr bought a half-dozen bathing suits and put them in charge of the policeman in charge of the park, and these were rented for 25 cents each. Any bather having his own suit went in the lake without charge. The defendant Orr had no further or other control of the lake than to prevent nude bathing. .In 1908 the same status continued, except that a rough shack was put up for a dressing-ro'om; theretofore the bathers concealed themselves in the bushes while dressing and undressing; a spring-board and three rough canoes were put on the lake and a rope 300 feet long provided; for the use of a boat a charge of 10 cents per hour was made; there were no other appliances for the safety of the bathers provided. The lake varied in depth from 6 or 8 inches to 12 feet.</p> <p>On the afternoon of the drowning, the intestate, in company with other boys and some men, was in bathing. The intestate rented his suit, but there were other bathers who were using their own suits. After having been in for nearly two hours, the defendant Phillips, the policeman then in charge, saw deceased standing in water about 8 inches deep, and observing that he seemed to be cold, that his lips were blue, told him to come out and put on his clothes; that, apparently obeying him, the intestate came out, went in the direction of the dressing-room, but instead of dressing, went to another part of the lake where he was concealed from the view of the defendant Phillips and went in the pond again; that he had been in only a few minutes when he told a companion that he had cramp in his left arm and leg; that this companion was about 20 feet away, sitting on the dam, and as deceased indicated a purpose to come to him, told him not to do so, but that he would come to the deceased; disregarding this warning, the deceased started to swim to his companion, when, after going about 10 feet, he sank, called, and, before he could be rescued, was drowned.</p> <p>Deceased was a good swimmer and had that afternoon been swimming all over the lake.</p> <p>Lester Ross, the youth who was sitting on the dam, gave the alarm; the defendant Phillips came out in a boat in two or three minutes; the other bathers came, but they were unable, by diving and feeling with a paddle, to locate the body. In a short time the defendant Orr, who had been called by phone, came out with a fire pole or hook, and the body being located, one of the bathers dived for it and brought it up. This was about thirty minutes after the disappearance of the deceased under the water. The efforts to resuscitate him were unavailing.</p> <p>The plaintiff, having qualified as administrator of the deceased, his son, brought this action against Orr and Phillips, to recover damages for the death of the deceased, which he alleges to have been caused by a breach of duty of the defendants, in that they were running a bathing establishment for profit at this pond and did not provide the necessary appliances and supervision for guarding and protecting the safety of the bathers, who came there by the invitation of the defendants; and failed to post signals at the deep places in the lake to warn the bathers of the danger; that no means were provided for recovering quickly drowning bodies, or rescuing the bathers in distress, or resuscitating the bodies recovered. ■</p> <p>The above statement presents the facts upon which his Honor allowed the motion of nonsuit.</p>

, at January Term, 1910, of Guileobd. Judgment was rendered for tbe plaintiff upon the pleadings. Defendant excepted and appealed to- this Court. The plaintiff-sued to recover $6,000, evidenced by three notes, for $1,000, $2,-000 and $3,000, each dated 1 October, 1902, and interest from 1 October, 1904. Defendant admitted execution of the several notes and that he had paid' no part of the principal. and no interest since 1 October, 1904.

<p>Trial by Jury — Consent Reference — Waiver.</p> <p>By consenting to and requesting an order of reference a party elects to waive a trial by jury, and will not be permitted to repudiate bis voluntary action and demand a jury trial upon tbe findings of tbe referee; and in tbis case tbe trial by jury was further waived under tbe rules of practice, as to exceptions, etc. Driller Go. v. Worth, 117 N. C., 515; Ogden v. Land Go., 146 N. C., 443, cited and approved.</p>

<p>1. Deeds and Conveyances — Fraud—Cancellation—Plaintiff’s Title— Defendant’s Possession — Procedure—Evidence—Nonsuit.</p> <p>When defendant lias entered upon and cut timber from plaintiff’s land under plaintiff’s deed to the land, which, by the verdict of the jury and judgment entered accordingly, have been set aside for fraud, it is error for the lower court to nonsuit the plaintiff, upon the question of plaintiff’s damage, on the ground that he has failed to show title in himself, when the defendant has failed to show a title in itself superior to that acquired by the void deeds; for it would be inequitable to permit the defendant to thus take advantage of its own fraud and wrongful act and assail the plaintiff’s title until it had surrendered the possession which it had obtained of plaintiff by fraud. Whether the defendant may show that plaintiff is not the owner of the land in reduction of the damage is not presented in this case.</p> <p>2. Deeds and Conveyances — Title — Common Source — Timber Rights.</p> <p>When defendant takes as plaintiff’s grantee a restricted interest in plaintiff’s land under his deed, in this case standing timber of a given dimension, and enters upon the land and cuts the timber accordingly, his motion to nonsuit upon the ground that plaintiff has not shown title thereto will be denied, as defendant will not be heard to deny or question the validity of the title of the plaintiff, having acquired possession under and by virtue of the deed.</p>

, at February Term, 1910, of Ruthek-eokd. \ Action commenced before a) justice of tbe .peace to foreclose a lien for material furnished for the! repair of a house of a feme covert. The facts are sufficiehtly stated in the opinion of the Court.

<p>Appeal from. Justice, J., at November Term, 1909, of Hen-DERSON.</p> <p>Civil action, beard upon motion for injunction until tbe final bearing. Tbe judge dissolved tbe restraining order theretofore issued. Tbe plaintiff appealed.</p>

Webb, J., at February Term, 1910, of McDowell. The usual issues of negligence, contributory negligence and damage' were submitted. There was a verdict and judgment for plaintiff, and defendants appealed.

<p>1. Principal and Agent — Scope of Authority — Surety Bond — Seal— Regular on Face — Innocent Stranger.</p> <p>A bond signed as surety by the agents of a surety corporation, the agents living and doing business in Tennessee as such agents, by means of which goods held under a warrant of attachment were released, is binding upon the surety company as principal, the acts of the agents being within the apparent scope of their authority; and the principal, having furnished its agents with the form of the bond, signed and sealed by it, awaiting only the signature and delivery of the agents for apparent validity, are also held liable thereon for having put it within the power .of the agents to cause loss or disadvantage to innocent third persons.</p> <p>2. Principal and Agent — Judgment—Lower Court — Validity Presumed — Statement of Facts.</p> <p>Error in the judgment of the lower court will not be presumed on appeal, and when it appears that a surety bond under seal given by a surety company has been delivered for the purpose of vacating an attachment, and its execution appears to be sufficient, the judgment of the Superior Court, establishing its validity, will be sustained, and not declared void for the alleged want of authority of the agents in signing and delivering it, in the absence of any statement of facts by the lower court upon which its judgment was declared.</p> <p>3. Principal and Agent — Surety Bonds — Ratification.</p> <p>A surety company by accepting tbe premium on a bond issued by its agents to vacate a warrant of attachment, ratifies tbe act of tbe agent and cannot be beard to contest tbe validity of tbe bond on tbe ground that its agents bad therein exceeded their authority.</p>

<p>1. Deeds and Conveyances — Execution Denied — Burden of Proof— Statute of Frauds — Plea Sufficient.</p> <p>Whether the written contract to sell mineral interests in land is an option of purchase or a contract to sell, the party seeking its enforcement must introduce sufficient evidence tending to show its execution by the vendor; and when the vendee, the defendant in the action, by answer denies the execution of the paper-writing, it is sufficient to protect him under the statute of frauds without specially pleading the statute.</p> <p>2. Same — Findings of Court — Evidence—Nonsuit.</p> <p>When there appears in the record on appeal no sufficient evidence of the execution of the paper-writing which the plaintiff seeks in his action to enforce for the conveyance of mineral interest in lands, and the court below has held there was no such evidence, and it appears that the statute of frauds has been sufficiently pleaded in the answer, the judgment of the lower court sustaining defendant’s motion to nonsuit upon the evidence will not be disturbed on appeal.</p> <p>3. Deeds and Conveyances; — Vendor and Vendee — Statute of Frauds —Party to Be Charged.</p> <p>A suit against the vendee to recover the purchase money agreed to be paid for land, or any interest therein, is one against the party to be charged within the meaning of the statute of frauds, and the defendant" can plead the statute in order to defeat a recovery.</p>

, at March Term, 1910, of BuNCOMBE. The action is brought by the assignee of certain judgments against ~W. H. Penland and others to set aside, on ground of fraud, a certain deed in trust dated 20 July, 1897, executed by W. H. Penland, Mary B., Althea M. and Mary C. Penland to Joseph E. Dickerson, trustee, covering nine tracts of land, securing the payment of a note to Mrs. O. B. Alvey in the sum of $10,000.

<p>1. Deeds and Conveyances — Timber—Description Indefinite — Voidable — Identification.</p> <p>A conveyance of “all my pine, oak and poplar timber tbat J. D. P. may want for lumber,” of a certain measure across tbe stump, is an insufficient description to pass tbe title, and will not support an action brought by the grantee for damages for the cutting of such timber, in tbe absence of evidence tending to show tbat at the time of the conveyance tbe grantor and grantee in tbe deed bad marked or otherwise sufficiently identified the timber trees for the cutting of which the damages are sought.</p> <p>2. Deeds and Conveyances — Timber—Description—Lands.</p> <p>Growing timber is a part of the realty, and deeds and contracts concerning it are governed by the laws applicable to that kind of property.</p>

<p>Appeal from Gouncill, J., from HewdebsoN, heard by consent at chambers, 27 April, 1910.</p> <p>This was a controversy without action. The agreed facts are thus stated:</p> <p>1. That the General Assembly of North Oarolina, session of 1901, passed an act (see ch. 97, Private Laws 1901), entitled “An act to amend the charter of the town of Hendersonville,” wbicb act forms a part of tbe charter of tbe town of Henderson-ville, reference to wbicb is hereby made; that sections 5, 6 and 9 of said act form a general scheme for tbe paving of the streets and sidewalks of tbe said town.</p> <p>2. That on or about 1 September, 1909, tbe people of tbe said town decided to lay cement sidewalks, under and by virtue of tbe said charter, and, - through their commissioners, duly elected and qualified, they called an election to vote upon tbe question of tbe issuance of bonds for tbe said purpose, wbicb call for election is hereto attached, marked “Exhibit A,” and prayed to be taken as a part of this petition; that tbe election was carried, and $20,000 worth of tbe said bonds were duly issued and sold, and tbe money therefrom has been placed in tbe treasury of said town. A copy of tbe said-bonds is hereto attached, marked “Exhibit B,” and prayed to be taken as a part of this petition.</p> <p>3. That after tbe sale of tbe said bonds and tbe receipt of tbe said money, tbe commissioners of tbe town of Hendersonville passed an order as to bow said moneys should be spent in said work, and bow said work should be prosecuted, wbicb order of tbe board is hereto annexed and marked “Exhibit O,” and prayed to be taken as a part of this petition.</p> <p>4. That tbe commissioners of tbe town of Hendersonville, as outlined in their said order, have proceeded to hire engineers to lay out and establish tbe grades on said streets and sidewalks, and have employed a contractor to grade tbe same and lay said cement sidewalks. That, acting under tbe orders of tbe said 'board and their employment by tbe said board, tbe said engineers and contractor are now at work on what is known as Academy Street in said town. That tbe town of Hendersonville is a mountain town, having many bills inside of said town, and in many places great excavations are called for by tbe engineers’ survey, with fills on either side, wbicb excavations and fills will cost much money to complete.</p> <p>5. That tbe said board of commissioners propose to pay:</p> <p>(a) Tbe grading of tbe sidewalks out of said funds;</p> <p>(b) Tbe grading of tbe streets, as distinguished from tbe sidewalks, out of said funds derived from said bond sale;</p> <p>(c) To pay tbe said engineers out of tbe funds derived from said bond sale for tbe establishment of tbe grades of tbe sidewalks ;</p> <p>(d) To pay tbe said engineers out of tbe funds derived from said bond sale for tbe establishment of tbe grades of said streets as distinguished from said sidewalks.</p> <p>6. That a great controversy has arisen in tbe said town, among the lawyers and citizens, as to whether, under the said charter and call for election, etc., the commissioner's have the power to do such grading, employ such engineers, to pay for the grading of the sidewalks and streets, and said engineers, as aforesaid, out of the money derived from the said bond sale.</p> <p>7. That the plaintiff, Walker A. Smith, who is a resident and taxpayer of the town of Hendersonville, contends that, under the plain terms of the charter, the call for said election, and the plain letter of the law, the said commissioners have no power</p> <p>(1) to pay for the grading of the sidewalks out of said money;</p> <p>(2) to pay for the grading of the streets between the sidewalks out of said money; (3) to pay the engineers out of said money to establish the grade of said sidewalks; (4) to pay the engineers out of said money to establish the grade of the streets, as distinguished• from the sidewalks; all of which aforesaid things the town claims it can lawfully do.</p> <p>And he further contends that under the plain letter and mean- - ing of the law, as set forth in said charter and statutes amenda-tory thereof, and the said call of election, that the money derived from the sale of these bonds can only be spent for actual cement and the work of laying it down.</p> <p>Upon the above facts agreed, his Honor rendered the following judgment:</p> <p>• “This case coming on to be heard before his Honor, ~W. B. Oouncill, J., at chambers, and being heard, by consent, the court is of the opinion, and so adjudges:</p> <p>“First. That the board of commissioners of the town of Hen-dersonville had and now have a legal right to pay for grading the streets (as distinguished from sidewalks) in the town of Hendersonville, from the funds now in hand derived from the sale of $20,000 bonds issued 1 January, 1910, in accordance with and by authority of an election held in said town 28 September, 1909.</p> <p>“Second. That the board of commissioners of said town had and now have a legal right to pay for grading the sidewalks in said town from said fund.</p> <p>“Third. That the board of commissioners of said town had and now have a legal right to employ and pay competent engineers to ascertain the jtroper grades of said streets in said town.</p> <p>“Fourth. That the board of commissioners of said town had and now have a legal right to employ and pay competent engineers to ascertain the proper grades of said sidewalks in said town.</p> <p>“Fifth. That the plaintiff pay the costs of this action, to be taxed by the clerk.”</p> <p>From which judgment plaintiff appealed to this Court.</p>

, at December (Special) Term, 1909, of Pamlico. Tbe action was begun in tbe Superior Court of Guilford County 27 July, 1908. Tbe defendant moved to remove tbe action for trial to Craven County. Pending tbe motion, J. Barroib Forrest died, and bis wife, having qualified as executrix, was made party defendant. Tbe order of removal was made to Pamlico County.

<p>Appeal by plaintiff from 0. H. Allen, J., at October Term, 1909, of New Haktover.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>Principal and Surety — Distiller's Bonds — Judgment in Federal Court —Certified Records — -Indebtedness—Evidence.</p> <p>A duly and properly certified copy of the record of the United States District Court of a judgment had against a surety on* a distiller’s bond is prima facie or presumptive evidence of the stated indebtedness of the principal, in an action subsequently brought by the surety against his principal and cosurety thereon; and in the absence of evidence in rebuttal, when it is admitted that the plaintiff has paid the judgment, he may recover from the principal the entire debt which he has paid, or from the surety his ratable part, it appearing of record that there is no reál dispute between the parties as to the truth of the matters set out in the record, if the judgment in the District Court is held to be evidence against the defendants.</p>

<p>Appeal by plaintiffs from Lyon, J., at January Term, 1910, of Moobe.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>Appeal by plaintiff from Joseph S. Adams, J., at September Term, 1909, of Buncombe.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>Appeal by defendant from Lyon, J., at December Term, 1909, of ROBESON.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

Appeal by plaintiff from Biggs, J., from Randolph, heard at chambers in Asheboro, 10 May:, 1910. On 10 February, 1910, the board of commissioners of the town of Asheboro passed a resolution, without submitting the same to a vote of the people, to issue $50,000 in bonds of the town, due thirty years after date and bearing 5 per cent interest, for the purpose of providing a system of waterworks and sewerage for said town.

<p>1. Contracts of Sale — Commission Man — Advances—Executory Liens — Title.</p> <p>, A contract between a commission company and a manufacturing plant whereby the former was to have exclusive sale of the product of the latter at an agreed commission, and to advance a certain per cent of the value of the goods on hand stored in' the mill, which were to be billed to it and kept stored in a separate warehouse and insured for its benefit, does not of itself create a lien on the goods for advances made: (a) the contract is' executory, that the goods should be shipped for sale on commission; (5) there is no lien given or recorded; (c) an invoice alone does not transfer title, and marking and invoicing the goods does not create a lien for the advances.</p> <p>2. Contracts — Commission Man — Advances—Liens—Possession,</p> <p>Possession, actual or constructive, is necessary to create a lien on goods in favor of a commission man who, under the terms of his exclusive contract of sale, has advanced money thereon.</p> <p>3. Same — Acquiescence—Silence.</p> <p>A commission man claiming a lien under the terms of his contract of exclusive sale by reason of having advanced money on goods manufactured by a corporation and stored at its mills, does not show the possession necessary to his lien by establishing as a fact that after making the advances he went to the mill, and asked the superintendent of the mill to take charge of the goods for him, the president of the latter standing by, but not assenting.</p> <p>4. Contracts — Commission Man — Advances—Superintendent— Agency — Possession.</p> <p>The superintendent of a manufacturing company has no authority to transfer possession of the company’s property to a stranger, unless authorized by the comjmny; and when a commission man has made advances on the goods of the company without taking possession, but by verbal agreement with him the superintendent lias attempted to give Mm possession, with the understanding that it should he held for him, it is insufficient for the purpose of creating a lien for the advances made.</p> <p>Manning, J., dissenting; Hoke, J., concurring in dissenting opinion.</p>

Ada-ms, J., at August Term, 1909, of TRANSYLVANIA. Civil action to recover damages for alleged negligent injury. Tbe plaintiff alleged, and offered evidence tending to sbow, tbat be bad suffered physical injury caused by negligence of defendant company. Defendant denied negligence and pleaded a release of all claim for damages, signed by plaintiff, and offered evidence tending to support tbe defense.

, at December Term, 1909, of BuN-combb. There was evidence tending to show tbat one L. L. Wood bad contracted in writing with defendant company to “cut, saw, log and stack in a workmanlike manner” for defendant company the timber growing on a tract of land of 888 acres, and was engaged in the performance of said contract; that the plaintiff had agreed with L. L. Wood to do the logging for this job at $3 per thousand feet; that plaintiff went to work under this agreement, and…

<p>Appeal by defendant from Ward, J., at Fall Term, 1909, of TYRRELL.</p> <p>The facts are sufficiently stated in the opinion of the Court by Associate Justice Brown.</p>

<p>Corporations — Rehearing — Dividends Reserved — Stock and Cash Dividends — Purchaser—Intent Acquired.</p> <p>The interest of stockholders in a corporation remains unchanged upon the latter declaring a so-called stock dividend, as such stock dividend neither takes from nor adds to the corporate wealth; and an accepted offer to sell certain shares of stock in a corporation at a certain price, reserving dividends to be declared at a certain date, refers only to dividends payable in cash, and not to stock dividends which had already been declared, to be effective at the date specified: Hence, by buying the shares so offered, the purchaser acquired the stock dividend thereon, and the seller under the contract of sale is entitled to the regular and special cash dividends payable in January following.</p> <p>Former opinion modified.</p>

, at the August Term, 1909, of Cheeokee. Petition for a writ of mandarme. Upon the hearing his Honor rendered the following judgment: In the above-entitled case the summons was made returnable to August term of the Superior Court. See summons.

, at the February Term, 1909, of Guil-eoed. Civil action to recover a penalty. The facts are set out in a special verdict and in the judgment of the judge of the Superior Court.

, at the March Term, 1910, of BuNCOMBE. Civil action to recover damages for personal injury. Tbe usual issues were submitted and found against tbe defendant. Appeal to tbis Court. Tbe facts are sufficiently stated in tbe opinion of tbe Court.

J. Adams, J., at Fall Term, 1909, of AnsoN. Civil action for damages for personal injury, alleged in the complaint to have been received in Savannah, Georgia, in May, 1901. These issues were submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No. 3.

<p>Appeal from W. B. Allen, J., at November Term, 1909, of IÍARNETT.</p> <p>Tbe plaintiff brought this action to compel specific performance of the following contract:</p> <p>North Carolina. — Harnett County.</p> <p>I, Bud Tart, of said county and State, have this day given to H. L. Godwin the privilege of erecting a store building on my lot in Dunn, N. C., the same being lot No. 11 in the. subdivision of the original lot No. 3 in block R in the blue-print, plan of town of Dunn, N. C. The said H. L. Godwin has the privilege of remaining in possession of said lot for three years from the date of this contract, and he is required tó keep the taxes paid on said lot. And it is agreed and understood, and I do hereby bind myself, my heirs, executors and administrators to make a good and lawful deed to H. L. Godwin, his heirs or assigns, upon the receipt of the sum of $360, which must be paid indefinitely (immediately) upon the expiration of this, contract, or at any time before it expires.</p> <p>Bud X Tart. (seal.)</p> <p>H. L. GODWIN. (seal.)</p> <p>His Honor submitted tbe following issues to tbe jury, wbicb were responded to as set out:</p> <p>1. Did tbe plaintiff and tbe defendant Bud Tart execute tbe contract set out in tbe complaint? Answer: Tes.</p> <p>2. Did Bud Tart, at tbe time of executing tbe said contract, have sufficient mental capacity to make same? Answer: No.</p> <p>3. If not, 'did tbe plaintiff bave notice of said mental incapacity? Answer: Yes.</p> <p>4. Wbat was tbe value of said lot on 17 June, 1902? 'Answer: $360.</p> <p>5. Wbat was tbe value of tbe improvements put on said land by H. L. Godwin? Answer: $1,000.</p> <p>6. Wbat was tbe annual rental value of tbe lands before tbe improvements were put upon it by tbe plaintiff? Answer: Nothing.</p> <p>7. Wbat was tbe annual rental value after tbe improvements were put upon it by tbe plaintiff ? Answer: $100.</p> <p>Upon tbe verdict, bis Honor rendered tbe following judgment:</p> <p>“Tbis cause came on for trial at tbe November Term, 1909, of tbe Superior Court of Harnett County, before W. B. Allen, Judge, and a jury, and tbe jury having returned their verdict, as appears in the record, it is, upon said verdict and tbe admissions in tbe pleadings, considered and adjudged that tbe defendant Bud Tart is tbe owner in fee of tbe lot described in tbe complaint, and that be is entitled to recover poss’ession thereof of tbe plaintiff, H. L. Godwin, upon tbe payment to him-of tbe sum of $1,000, tbe value of the improvements placed on said land by tbe plaintiff.</p> <p>“And it further appearing to tbe court that tbe defendants still refuse to perform tbe contract referred to in tbe issue, and that they demand possession of said lot, it is further considered and adjudged that said sum of $1,000 is due to tbe plaintiff, H. L. Godwin, and tbe same is a lien on said lot, and, upon failure to pay the same within ninety days it is ordered that tbe said lot be sold for tbe satisfaction thereof by N. A. Townsend and E. E. Young, now appointed commissioners for that purpose, who shall report their proceedings to tbis court.</p> <p>“It is further ordered that each party pay bis costs. Let tbe pleadings be amended, if’so advised.”</p> <p>The plaintiff testified, over tbe objection of tbe defendant, that be bad been in possession of tbe lot since June, 1902; that be knew Bud Tart bad been in tbe asylum; that be returned to tbe asylum at Raleigh; that tbe building put by him on tbe lot cost him $475, not exceeding $500;- that its rental value was $100 per year; tbat be bad received tbe rents; tbat be bad tendered tbe amount be was to pay to defendant Parker, as guardian of Bud Tart, and demanded a deed from bim; tbat Parker declined to make tbe deed. Another witness for plaintiff testified tbat Bud Tart, at times, looked dangerous. Tbe summons showed service on Dr. James McKee, superintendent of tbe State’s Hospital at Raleigh, N. C., where Bud Tart was confined; tbe service was made 17 June, 1905. There was evidence tbat tbe unimproved lot was worth, in June, 1902, from $300 to $400, and tbat it bad since then increased in value. Tbe defendant tendered tbe following judgment:</p> <p>“This cause coming on to be beard, and being beard before bis Honor, W. R. Allen, and a jury, and tbe issues answered as follows (here follows tbe issues as set out above) :</p> <p>“It is now considered, ordered and adjudged tbat tbe defendants, Bud Tart and bis guardian, T. A. Parker, recover of tbe plaintiff, H. L. Godwin, tbe possession of tbe said land described in the complaint; and it is further ordered and decreed tbat tbe paper-writing or contract referred to and set out in tbe complaint be canceled of record; and it is further adjudged tbat tbe plaintiff pay tbe costs of this action, to be taxed by tbe clerk.”</p> <p>To tbe judgment of tbe court, defendant excepted and appealed to this Court.</p>

, at August Term, 1910, of Oher-OKEE. The plaintiff sued the defendant upon the following note: $1,500. MuRphy, N. C., 16 January, 1906. Sixty days after date I promise to pay to the order of W. H. Woodbury $1,500, at the Bank of Murphy, Murphy, N. C., for value received. Received and subject to contract of 16 May, 1904. We, the makers and indorsers, waive demand, protest and notice.

Tbe plaintiff, as administrator of bis wife, brought tbis action to recover damages for tbe death of bis wife, and alleged that: “4.

<p>1. Street Railways — Personal Injury — Conductors — Negligence— Improbable Results — Nonsuit.</p> <p>The plaintiff was injured while engaged in the service of the defendant company in collecting fares on a summer car run in cold weather. 1-Iis evidence tended to show that the weather was too cold for a car of this character, and that he had unsuccessfully requested closed cars of his superior for the purposes required; that the- curtains of the car ran tight in their grooves, and that the injury occurred while he was necessarily attempting to raise a curtain to - collect fares, which had been caught -in the grooves, by his hand slipping from the curtain and striking the other one with which he was holding to a stanchion provided for the purpose, which, from the blow, or from being numb by the exposure to the cold, relaxed its hold, causing plaintiff to fall from the moving car to his injury: Held, the injury complained of would not ordinarily arise or be likely to ensue from the tightening of the curtain plaintiff was -attempting to roll up, and a motion for judgment as of nonsuit upon the evidence should be allowed.</p> <p>2. Street Railways — Fersonal Injury — Conductors — Negligence— Vestibules — Statutory Requirements — Causal Connections.</p> <p>The plaintiff’s evidence tended to show that the injury complained of was received by his falling from the running-board of a summer street car while collecting fares from passengers, under circumstances insufficient to establish the defendant’s negligence. In order to avoid a nonsuit under the provisions of Revisal, secs. 2615 and SSOO, requiring street passenger railways to use vestibule fronts at certain prescribed times, the plaintiff must show a causal connection between the violation by defendant of 'the statute and the injury sustained, or a judgment as of nonsuit upon the evidence will be sustained.</p> <p>Clark, C. J., dissenting.</p>

<p>1. Deeds and Conveyances — Mortgages—Husband and Wife — Fraud —Bona Fide- Debt — Fraudulent Intent — Knowledge.</p> <p>In an action brought by the creditors of the husband to set aside his mortgage to his wife, giyen to secure a loan of money made by the latter to the former, on the ground of fraudulent intent to delay or defeat his other creditors in the collection of their debt, the questions involved are whether the husband had the fraudulent intent and whether the wife had notice of it; and evidence of the latter that she had no knowledge or notice of her husband’s unlawful purpose, is competent.</p> <p>2. Same — Presumption—Burden of Proof.</p> <p>When the husband makes a mortgage to his wife to secure a debt admittedly bona fide and due at the time of the execution of the mortgage, in a suit by other creditors of the husband to set aside the deed as fraudulent for the purpose of delaying or defeating the collection of their debt, there is nothing in the transaction to raise a presumption of fraud, and the burden of proof is on the plaintiff to establish it.</p> <p>3. Deeds and Conveyances — Mortgages—Husband and Wife — Debt, Bona Fide — Fraud — Evidence — Instructions — Questions for Jury.</p> <p>In an action by the creditors to set aside a mortgage given by the husband to his wife to secure a debt admittedly due at the time of its execution, it is for the jury to find, upon the evidence, the actual intent of the husband to defraud his other creditors, and whether the wife knew or had notice thereof, or acted in good faith in the transaction; and it is no error for the trial court to instruct the jury, to answer the issue of fraud in the negative if they found that the wife acted in good faith, without knowledge of the husband’s wrongful intent.</p>

<p>1. Pleadings — Proof—Variation.</p> <p>There is no material variance between the allegations and the proof in an. action for damages for personal injuries, the aver-ments of the complaint substantially being that the alleged injury was caused by the negligent, etc., starting the train of defendant railroad company by the engineer, without signal or warning, which violently jerked the slack out of the train, pulled the cars farther apart, causing plaintiff to miss his footing and fall to his injury between the cars; and the evidence objected to being that “the engineer started off at high speed — quick start,” etc.</p> <p>2. Evidence Withdrawn — Harmless Error.</p> <p>When improper evidence, objected to, is withdrawn by the court from the consideration of the jury, the error in admitting it is cured.</p> <p>3. Railroads — Orders—Negligence—Evidence—Instructions.</p> <p>Upon conflicting evidence an instruction is correct in substance as follows: that if the engineer should not have started his train without a signal from plaintiff, an employee, if they find the conductor had ordered him to "thus signal from the top of the train, and if the engineer did start the train with a jerk without plaintiff’s signal, or did so at a signal from the conductor, jerking the cars apart so as to throw plaintiff between them to his injury, and this was the proximate cause thereof, the issue as to negligence should be answered for plaintiff.</p>

<p>Appeal by plaintiff from W. J. Adams, J., at August Term, 1909, of UNION.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>1. Municipal Corporations — Bond Issues — Necessary Improvements —Legislative Restrictions — Constitutional Law.</p> <p>The Legislature has the constitutional power and authority to prescribe the terms and conditions upon which municipal corporations may enter into a contract by which a debt is incurred and limit the amount to such sum as it deems necessary; and having done so, the municipality is without power to exceed the amount of the indebtedness prescribed by the act.</p> <p>2. Same — Highway Commissioners.</p> <p>A highway commission having been authorized by a legislative act to improve the roads of its township, and, for that purpose, to issue coupon bonds of the township “for an amount sufficient, not exceeding $25,000,” cannot issue an additional amount of bonds for the necessary purpose of completing the work undertaken, without authority from the Legislature to do so.</p>

<p>Deeds and Conveyances — Mortgagor and Mortgagee — Registration —Original Parties — Executors and Administrators.</p> <p>As between the original parties, the lien of an unregistered mortgage holds, and the personal representative of a deceased mortgagor stands in the shoes of the latter: lienee, the plaintiff holding an unregistered second mortgage on the lands of the defendant’s intestate is entitled to his lien upon the funds derived from the sale in excess of the first mortgage, in preference to other creditors of deceased.</p>

<p>1. Counties — Jail—Necessary Expense — Bond Issue.</p> <p>A jail, is a necessary county expense, and in the absence of statutory restrictions, the county commissioners may pledge the credit of the county in order to obtain one.</p> <p>2. Same — Legislative Powers — Restriction—Retroactive — Previous C ont ract — V a I i d i ty.</p> <p>The county commissioners entered into a contract for the building of a jail, as a necessary county expense; issued bonds' for payment and.sold them, receiving part payment and a check on a bank, until the payment of which they kept the bonds for security. The check was paid and the bonds delivered, but after the sale and before the physical delivery of the bonds the Legislature passed an act requiring the commissioners to advertise for bids on the jail, and annulled the commissioners’ resolution to issue the bonds: Sold, the contract for the sale of bonds was valid; the delivery in effect was made when payment, under the circumstances, was received, and the legislative act came too late to affect the transaction.</p>

<p>Appeal by defendants from J. S. Adams, J., at February Terra, 1909, of Rutherford.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

<p>1. Deeds and Conveyances — Foreign Countries — Probate—Title of Officer — Clerical Error.</p> <p>A deed made in England to the locus in quo, the evidence showing it. was in fact probated before a United States Vice and Deputy Consul General there, but giving the title to the probate officer as “Née” and Deputy Consul, etc., will be adjudged “duly acknowledged,” it appearing that the word “née” was a clerical error and intended for the word “vice,” as indicated. U. S. Rev. Statutes, sec. 1674; Code, see. 1245 (4).</p> <p>2. Deeds and Conveyances — Foreign Countries — Probate—Validating Acts — Interpretation of Statutes.</p> <p>Revisal, sec. 1024, validating acknowledgment of deeds in foreign countries before “vice consuls and vice consuls general.” though not valid against a deed from the same grantor duly registered or a 'lien against the grantor acquired before the validating act (Laws 1905, ch. 451), is good as against the plaintiff in this action not claiming under the grantor therein.</p> <p>3. Deeds and Conveyances — Probate—Defective—Married Women— . Title.</p> <p>The exception that there is a defect in the privy examination of a married woman to a conveyance made to the husband’s land, is irrelevant in the lifetime of the grantor in an action involving the question of title thereunder.</p> <p>4. State’s Lands — Entry—New County — Grant—Location—Description Sufficient — Interpretation of Deeds.</p> <p>It appearing that an entry of State’s lands was made and definitely located and described as being in a certain county, wherein it was situated at the time, the validity of the grant is not affected by reason of the subsequent creation of a new county by the Legislature, including the locus in quo, and the description of the grant following the entry which called for the land in the original county; or by a clerical error in giving the number of the district as No. 6, when from a sufficient description it axipears that District No. 9 was clearly intended.'</p>

<p>Removal of Causes — Jurisdictional Amount — Damages—Injunction— Further Procedure.</p> <p>Upon defendant’s sufficient petition and bond, filed in apt time, to remove a cause from the State to the Federal court on the ground of diversity of citizenship, the court having found as a. fact that the cause was wholly between citizens of different States and therein wholly determinable, the amount is sufficient when damages are claimed in the sum of $2,000, and an injunction prayed which undoubtedly extends the amount beyond that sum, and alleged by defendant in his petition to be in excess of that specifically demanded; and the case being ordered removed, as prayed, all further proceedings must be had in the Federal court — exceptions to orders made in the lower court, and the like.</p>

,- at November Term, 1909, of Caldwell. There was evidence tending to show that the plaintiff was the owner of a house and lot in the town of Lenoir, abutting on Main Street, and also on north Boundary Street; that the authorities of the town in charge of the matter, having determined on a change of grade of these streets, proceeded to dig down and lower Main Street, leaving plaintiff’s property twelve or fifteen feet above the level of the sidewalk, and were about to…

, at February Term, 1910, of McDowell. Tbe plaintiff instituted suit in said county to recover on a judgment rendered in ber favor against defendant in tbe State Circuit Court of South Dakota for tbe sum of $1,646, said court having jurisdiction of tbe cause and parties at tbe time tbe same was rendered.

Civil ACTION from Currituck:, beard by consent of parties before Q. W. Ward, J., at chambers, in Elizabeth City on 12 May, 1910.

<p>Appeal from Justice, J., at March Term, 1910, of BuNCOMBE.</p> <p>Civil action to recover damages for alleged negligence of defendant company causing physical injury to plaintiff.</p> <p>There was evidence tending to show that plaintiff, one of a squad of hands engaged in moving a lot of economizers, in shape something like a steam radiator, each weighing not less than 2,000 pounds, had his hand seriously hurt by reason of a negligent order given by Ben Wright, who was foreman in charge of the work.</p> <p>The testimony on part of plaintiff tended to show that Ben Wright, at the time, was in- the position of vice principal of defendant company.</p> <p>This was denied by defendant, and the alleged negligence was also denied, and evidence offered in support of both positions.</p> <p>The jury rendered the following verdict:</p> <p>“1. Was the defendant, Champion Fiber Company, a corporation at the date of plaintiff’s injury? Answer: Yes, by consent.</p> <p>“2. Was the plaintiff, W. A. Hipp, injured by the negligence of the defendant, Champion Fiber Company, as alleged in the complaint ? Answer: Yes.</p> <p>“3. What damage, if any, is the plaintiff entitled to recover? Answer: $750.”</p> <p>Judgment oh the verdict for plaintiff, and defendant excepted and appealed.</p>

, at Fall Term, 1909, of Gbaham. .Tbis is a civil action to remove cloud from and quiet t-ii^Le to certain lands in Grabam County to wbicb botb plaintiffs and defendants claim title by virtue of different grants from tbe State. From the judgment rendered botb parties appealed. ' Tbe facts are stated in tbe opinion of tbe Court.

, December Term, 1909, of Beaueobt. Issues tendered by defendant: ■1. Is the plaintiff the owner and in possession of the land in controversy ? 2. Has defendant entered and trespassed thereon, as alleged? 3. If so, what damage has plaintiff sustained thereby? Issues submitted by the court: 1. Is the plaintiff the owner in fee and entitled to the possession of the land located on the plat between the red and green lines? Answer: “Yes.” 2.

These issues were submitted to the jury: 1. In what amount, if any, is the plaintiff entitled to recover of the defendant in this action? Answer: Yes; $1,000. 2. In what amount, if any, is defendant entitled to recover of the plaintiff on account of its counterclaim, set out in its answer ? The jury answered the first, but did not answer the second issue. The court rendered judgment for plaintiff, and defendant appealed.

<p>Appeal by plaintiffs from 0. H. Allen, J., November Term, 1909, of CRAVEN.</p>

<p>Appeal by plaintiff. Tbe facts are stated in the opinion of the Court.</p>

<p>1. Appeal and Error — Failure to Docket — Laches — Discretion of Court.</p> <p>Upon failure of appellant to docket his case on appeal as required by Buie 5 of the Supreme Court, the appellee may move to docket the certificate and dismiss under Bule 17 (unless a sufficient legal excuse is shown by the appellant for his delay) and therein the Supreme Court has no discretionary power.</p> <p>2. Appeal and Error — Failure to Docket — Laches—Certiorari.</p> <p>It is no sufficient excuse for the appellant’s failure, to docket his appeal under Buie 5 of the Supreme Court that the case was delayed in being settled and that the clerk was too busy with a term of court to make out the transcript, as it was the duty of appellant to have moved the Supreme Court in apt time for a certiorari, and to have seen to the copying of the transcript.</p> <p>3. Appeal and Error — Failure to Docket — Subsequent Term — Laches.</p> <p>When an appeal is not docketed in accordance with Bule 5, it is too late to do so at a subsequent term of the Court.</p> <p>4. Appeal and Error — Failure to Docket — Laches of Attorney —</p> <p>Client’s Responsibility.</p> <p>Appellant’s counsel is his agent or attorney in fact for the purpose of perfecting his appeal, and the principal is responsible for the negligence of the attorney.</p>

J. Adams, J., at October Term, 1909, of SCOTLAND. This is an action brought to recover of the defendants the amount claimed to be due plaintiffs by defendants. Judgment . was rendered against the plaintiffs and in favor of the defendant L. A. Monroe, and thereupon the plaintiffs appealed. The following issue was submitted: Is L. A. Monroe liable with the firm of B. & S. McDougald for the said debt? Answer: No.

, at November Term, 1909, of GraN-ville. Action for personal injury ggainst defendant Watkins, as the engineer, and the Southern Railway, as the common carrier operating a freight train with passenger coach attached, between Oxford and Keysville. Plaintiff was a passenger, and, while standing up near car door when train had stopped at a water tank, the train was started and, as plaintiff testifies, he was thrown down and injured.

, at October Term, 1909, of Iredell. Tbe action was brought to recover for loss of services of plaintiff’s son for about two years preceding- his majority. . The son was injured by the negligence of defendant’s employees and had recovered damages for the .injury. These issues were submitted: 1. Was Grady Ingram injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2.

Appeax from Long, J., at November Term, 1909, of RowaN. WiitB of attachment were issued and property of defendant attached. The defendant gave bond, and released the property. Issues were submitted to the jury as follows : 1. Prior to the commencement of this action, did the defendants inform plaintiff that the Lowery Coffee Company was a corporation of Pennsylvania, as alleged in plaintiff’s complaint ? Answer: Yes. ' 2.

Appeal by defendant from Webb, J., at October Term, 1909, of MECKLENBURG. These issues were submitted to the jury: 1. Did the defendant unlawfully assault the plaintiff, as alleged in the complaint? Answer: Yes. 2. Did the defendant willfully assault the plaintiff, as alleged in the complaint? Answer: Yes. 3. Did the defendant maliciously assault the plaintiff, as alleged in thé complaint? Answer: Yes.' 4.

<p>Appeal by defendant from Jones, J., at Fall Term, 1909, of Ashe.</p> <p>Disposed of under the opinions in Gunter’s case, 85 N. C., 310;. and Dean’s case, 107 N. C., 686.</p>

<p>Appeal and Error — Exceptions—Rule 27 — Procedure.</p> <p>Upon motion, the Supreme Court will affirm the judgment of the lower court for failure of the appellant to make the assignment of errors of record required by Rule 27, after examination of the record proper and no errors appearing thereon.</p>

, at December Term, 1909, of Burke. Civil action to recover damages for negligence and unreasonable delay in the delivery of the following telegram: Bridgewater, N. C., 10-19-1908. To EletoheR DobsoN, Morganton, N. G. Lillie Hicks is dead. Bury to-morrow at 3 P. M. JOHN HlGKS. These issues were submitted: 1. Did defendant company negligently fail to transmit and deliver the telegram, as alleged in the complaint? Answer: Yes. 2.

, at September Term, 1909, of Wa-tauga . Plaintiff brought this action against C. J. Cowles, deceased, defendants’ testator, before bis decease, and after bis death the present defendants qualified as bis executors and were made parties.

J. Adams, J., August Term, 1909, of UNION. This is an indictment ag'ainst tbe defendant for cheating and defrauding W. C. Heath by means of a false and fraudulent pretense. As the case is decided upon the validity of the indictment, it will be necessary to set it out. It is as follows : Noeth Caeolina — Union County. Superior Court, March Term, 1909. State v. T. C. Whedbee.

<p>Appeal from Ward, J., Fall Term, 1909, of Washington.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal by defendant from Guión, J., at August Term, 1909, of Pitt.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>1. Indictment — Unlawful Entry — Amendments—Deemed Made.</p> <p>When upon a trial under warrant for unlawfully and willfully entering upon land, etc. (Revisal, sec. 3688), on appeal from a justice of the peace, the Superior Court ordered an amendment by the insertion of the words “without license to do so,” which amendment was not actually made, but the trial proceeded to verdict upon the assumption that it had been made, a motion in arrest of judgment on that ground will not be granted.</p> <p>2. Indictment — Amendment—Superior Court — Power of Court.</p> <p>The Superior Court has the power to order an amendment made to a warrant on appeal from the court of a justice of the peace. Revisal, sec. 1467.</p> <p>3. Indictment — Unlawful Entry — Good Faith.</p> <p>When the allegations in an affidavit and warrant for unlawfully and willfully entering upon lands, etc., under Revisal, sec. 3688, substantially comply with the statute, it is sufficient, and an averment that defendant did unlawfully and willfully enter is inconsistent with a claim of title thereto in good faith by defendant, or any right of entry.</p> <p>4. Indictment — Affidavits Attached — How Construed.</p> <p>When a warrant clearly • refers to an attached affidavit and calls upon defendant to answer its allegations, these allegations become a part of the warrant itself, as if written therein.</p> <p>5. Indictment — Unlawful Entry — Premises — Land — Synonymous Words.</p> <p>The word “premises” is synonymous with the word “land,” and an indictment for the unlawful and willful entering upon the “premises,” etc. (Revisal, 3688), is not defective for the failure of the use of the word “land.”</p> <p>6. Indictment — Unlawful Entry — Possession) Constructive — Principal and Agent.</p> <p>When an indictment for unlawfully and willfully entering upon the lands of another, etc. (Revisal, sec. 36S8), alleges the possession of an agent for the owner named, the owner is in constructive possession, and the allegation of possession is sufficient, the charge not being one for forcible trespass.</p> <p>7. Instructions — Allusion to Charge — Special Instructions — Appeal and Error.</p> <p>Upon a trial under a warrant for unlawfully and willfully entering upon the lands of another (Revisal, sec. 3688),.it is not reversible error for the trial judge to fail to charge the jury upon the good faith or belief of the defendant as to his ownership, when such had not been requested by special instruction, and the instruction substantially required a finding which excluded the idea of an entry in good faith.</p> <p>8. Principal and Agent — Witness—Testimony—Declarations.</p> <p>The testimony of a witness as to his Own agency is competent, and not objectionable as evidence of declarations of agency.</p>

<p>Spirituous Liquors — Procuring Sale — Police Officers — Evidence— “Connivance.”</p> <p>A conviction for retailing whiskey, contrary to statute, is not affected by the fact that it was obtained upon evidence obtained by police officers furnishing money and employing one to buy it from defendant, without suggestion that any inducement to the sale had been held out to him. There is a distinction from those cases holding that a “connivance” of the parties will bar a cause of action.</p>

, at November Term, 1909, of RobesoN. The indictment charged that defendant did “unlawfully, willfully and wantonly ill-use, torment, wound, injure, poison and needlessly kill” a certain useful animal, to wit, “one bound dog, tbe property of E. E. McNair.” From tbe judgment imposed defendant appeals.

, at October Term, 1909, of EobbsoN. Proceedings in bastardy under the statute, heard' on appeal from a justice’s court. The plaintiff filed affidavit in due form as prescribed by the statute appertaining to such cases, and on the hearing before the justice of the peace the issue as to the paternity of the child was found against the defendant.

J. Adams, J., at November Term, 1909, of SCOTLAND. Indictment for murder. The prisoner was convicted of murder in tbe first degree, and from the judgment and sentence of-death appeals to this Court.

<p>1. Evidence — Objections and Exceptions — General Objections.</p> <p>A general objection taken to evidence on tbe ground of incompetency cannot be sustained when a part of tbe evidence objected to is competent.</p> <p>2. Evidence, Competent — Larceny.</p> <p>Upon trial under an indictment for burglary in the second degree testimony of a witness that “parties had been in our room” is not objectionable as a mere expression of witness’s opinion, he having no knowledge that defendants had been there, when it appears from his evidence that he intended to testify that some one had been there, judging from the appearance of the room.</p> <p>3. Evidence — Former Evidence — Opinion—Harmless Error.</p> <p>Testimony of a justice of the peace before whom defendant had had a preliminary trial, that the defendant had substantially testified in the Superior Court to what he had testified before him, is not reversible error when the witness has stated what the defendant had testified before him, thus giving the jury full opportunity to pass upon the question Whether there was any discrepancy or conflict in the testimony.</p> <p>4. Appeal and Error. — Evidence in Rebuttal — Discretion of Court.</p> <p>The trial judge may in his discretion refuse to allow additional testimony in rebuttal, after the case has been closed, and his ruling is not reviewable on appeal.</p> <p>5. Larceny from Dwelling — Night-time—Value of Property — interpretation of Statutes.</p> <p>Revisal, see. 3506, providing that “in all cases of larceny where the value of the property stolen does not exceed $20 the punishment shall, for the first offense, not exceed imprisonment * * * for a longer term than one year. If the larceny is from * * * the dwelling-house by breaking and entering in the daytime, this section shall have no application,” means that a larceny committed by breaking and entering a dwelling-house in the night-time cannot be punished by imprisonment for more than one year when the value of the property stolen does not exceed the amount named; for while a penal statute should be strictly construed, it must be reasonably construed. Revisal, sec. 3500.</p>

<p>Appeal from E. B. Jones, J., at January Term, 1910, of Ca-BARRITS.</p> <p>Tbe facts are stated in tbe opinion of tbe Court. •</p>

<p>Appeal by defendants from Qouncill, J., at September Term, 1909, of ALEXANDER.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

, at Fall Term, 1909, of Watauga. Indictment for murder. There was evidence on tbe part of tbe State tending to sbow tbat on 6 July, 1909, tbe prisoner sbot and killed J. W. Miller, deceased, wbo was at tbe time tbe town marshal of Blowing Rock, N. C.; tbat prisoner was going out of town towards Linville, wben tbe deceased, wbo was fifty steps behind, called to prisoner, overtook him, and, claiming to have a warrant for prisoner, arrested him and started him back towards…

Indictment for secret assault with intent to kill. The defendant was indicted, tried and convicted of a secret assault upon one J. D. Morgan, with intent to- kill, on the night of 24 January, 1910, in Burke County. The prosecuting witness, Morgan, testified that he, in company with several other men, were walking along a road, he and one Fisher in front.

, at November Term, 1909, of Mitchell. Indictment for murder. Tbe prisoner was convicted of murder in tbe second degree, and from tbe judgment of tbe court appealed. Tbe evidence tended to prove tbat tbe prisoner sbot and killed Ed. L. Young on 9 September, 1909, about 12 o’clock in tbe day; tbat prisoner entered tbe bouse of tbe deceased while be was asleep, sbot twice in tbe ceiling of tbe room, presumably to awaken tbe deceased, and then sbot bim four times.

Appeal by defendants from Ward, J., at Fall Term, 1909, of Ohowaií. Indictment for procuring and enticing a servant or employee to unlawfully leave his employer under section 3365 of the Re-visal. Nol. pros, was entered as to defendant Outlaw. There was a verdict of guilty as to defendants Augustus Holly and George Holly, who1 appealed.

, at September Term, 1909, of Halifax:. Indictment for incest of defendant in marrying his daughter and living with her in the marriage relation. The defendant was convicted, and appeals.

<p>Appeal by defendant from 0. H. Alien, J., at September-Term, 1909, of New HaNoveb.</p>

<p>Appeal by defendant from Long, J., at March (Special) Term, .1910, of Foesyth.</p>

Appeal by defendant from J. S. Adams, J., at November Term, 1909, of BuNcombe* Tbe defendants were indicted for the murder of Arthur Franklin, and convicted of murder in the second degree. From the judgment rendered, the defendant M. H. Tweed appealed.