Volume 153 — North Carolina Reports

Appeal by defendant from Ferguson, J., at the January Special Term, 1910, of WASHINGTON. Civil action to recover damages for an alleged malicious injury to the person and character of the plaintiff. There are three distinct counts or causes of action set out in the complaint, malicious prosecution, abuse of process with false arrest, and slander. The following issues were submitted: 1.

, at tbe Fall Term, 1910, of Cam-DEN. At tbe conclusion of plaintiff’s evidence tbe defendant moved to nonsuit, wbicb motion was allowed. Defendant excepted and appealed.

W. Ward, J., at the Spring Term, 1910, of Hertford. Civil action for damages for breach of contract in writing in which plaintiffs obligated for certain consideration to operate defendant’s lumber plant at Ahoskie, in Hertford County, and to cut into logs the standing timber of defendant and manufacture them into lumber at said plant. Tn October, 1904, these parties entered into another contract, modifying and changing some of the provisions of the contract of 1901.

<p>1. Appeal and Error — Settling Case — Request to Judge — Time Allowed.</p> <p>Upon receipt of appellee’s exceptions or countercase, the appellant now has fifteen days in which to request the judge to fix a time and place to settle the case on appeal. Chapter 312, Laws 1907.</p> <p>2. Same — Certiorari—Procedure.</p> <p>Tiie appellant having requested the judge, in ample time, to settle the case on appeal, he is entitled to a certiorari, to the end that the judge now settle the case.</p>

<p>1. Drainage Commission — Bond Issues — Validity—Interest of Clerk.</p> <p>An issue of bonds by a drainage commission formed under chapter 442, Laws 1909, is not void by reason that the clerk of the court who appointed the commissioners owned an interest in a tract of land within the drainage district, as such an interest is too minute, and not directly the subject-matter of the litigation.</p> <p>2. Drainage Commission — Bond issue — Interest of Clerk — Judgment — Collateral Attack.</p> <p>A bond issue by a drainage commission formed under chapter 442, Laws 1909, may not be restrained on the ground that the clerk appointing the commissioners owned land within the district, as such action would be a collateral attack upon the order or judgment of the clerk. It is also prohibited by sections 33 and 37 of the act.</p> <p>3. Appeal and Error — Objections and Exceptions — Brief.</p> <p>Exceptions not noted by the brief are deemed abandoned on appeal under Supreme Court Rule 34.</p>

<p>Trespass — Injunction—Supreme Court Opinion — Surveys—Orders— Procedure.</p> <p>In an action of trespass involving a dividing line between plaintiff’s and defendant’s land, and asking for a restraining order, the Supreme Court having rendered and certified down its opinion in plaintiff’s favor, it is not error for the subsequent trial judge to order the dividing line to be marked, and enjoining trespass upon plaintiff’s land; but the cause should be retained until the court has received the surveyor’s report, to afford opportunity for exceptions to be made to the line as actually marked.</p>

<p>1. Corporations — 'Federal Receivers — Permission to Sue — Submission to State’s Jurisdiction.</p> <p>In an action for damages against a railroad in the hands of Federal receivers, an objection to the introduction in evidence of an order of the Federal judge permitting the plaintiff to sue, because the order was not properly certified or sealed by the clerli of that court, becomes immaterial when it appears from the complaint and answer that both the railroad and its receivers had submitted to the jurisdiction of the court respecting the matters involved by filing a joint answer to the merits of the action.</p> <p>2. Corporations — Receivers—Joinder—Parties.</p> <p>It is proper to unite a corporation and its receivers as parties defendant in an action in tort to recover damages against the former in the receivers’ hands, though the tort complained of arose before the appointment of the receivers. The effect of priority that a judgment thus obtained will be given in the Federal court, not passed upon.</p> <p>3. Appeal and Error — Appellant—Burden of Proof — Trial Courts— Rulings.</p> <p>The appellant must show error on appeal in respect to the rulings of the trial judge upon the evidence, and in the failure of the record to disclose the evidence relied on, the ruling of t.lio lower court will be affirmed.</p>

<p>Evidence — Personal Property — Gift—Executors and Administrators.</p> <p>In ail action for possession of a horse brought by the administrator of a deceased husband against the wife, the latter claiming her husband had given her the horse, it is only necessary to show by the greater weight of the evidence, the actual delivery and transfer of possession, and an instruction requiring her to ]trove further that she “thereafter alone had the control and possession of the horse,” is erroneous. •</p>

<p>1. Homestead — Appraiser's Report — Lost Records — Oral Evidence.</p> <p>A purchaser of lands at an execution sale from which, defendant’s homestead had been exempted and laid off, may show, after proving the loss of the original report of the appraisers, by oral evidence and by copy made thereof, the contents of the original report of the appraisers, which had been filed in the judgment roll, for the purpose of establishing the boundaries of the homestead and the proper location of a disputed lino.</p> <p>2. Lost Deeds — Records—Oral Evidence — Interpretation of Statutes.</p> <p>Revisal, chapter 11, is an enabling act, and does not exclude oral evidence, admissible at common law, to prove the contents of a lost deed or record.</p> <p>3. Homestead — Appraiser’s Reports — Independent Action — Collateral Attack — Procedure—Motion.</p> <p>The report of the appraisers in laying off a homestead cannot be collaterally attacked in an independent action to ascertain the boundaries, upon the ground that they did not sign the report in the presence of the sheriff. This is an irregularity which at most can only render the report voidable, and the remedy is by motion in the original proceedings to set it aside, after it has been filed in the Superior Court clerk’s office.</p>

<p>Appeal by plaintiffs from Ferguson, J., at tie May Term, .1910, of BEAUFORT.</p> <p>The plaintiffs brought this action to recover the possession of a tract of land. They claim title to the land as the children of J. B. Paul by his first marriage. J. B. Paul, after the death of his first wife, married Bettie Carter, who inherited a one-third interest in the land from her father, Stephen Carter, the other heirs of Stephen Carter being his two sons, Lawrence Carter and the defendant. The latter has purchased the interest of Lawrence Carter and is the owner of the entire interest in the land, if the disputed question is decided in his favor. J. B. Paul had one child by his second marriage. He died and then his wife, Bettie Paul, formerly Bettie Carter, died intestate, their child surviving them. The child died in infancy, and the plaintiffs now assert title to a one-third interest in the land as the heirs of the deceased child of J. B. and Bettie Paul, while the defendant claims that he and his brothers are the heirs of the child, and that he, by purchase from them of two-thirds of that interest and inheritance in his own right of the other third, is the sole owner of the land. The court so decided, and the plaintiffs appealed.</p>

<p>Appeal from George W. Ward, J., at the Spring Term, 1910, of Hertford.</p> <p>(DEFENDANTS WHITE AND TaYLOE APPEALED.)</p>

Appeal by plaintiff from G. W. Ward, J., at the April Term, 1910, of HERTFORD. This action was brought to recover possession of a tract of land, known as the Britton Moore place, which plaintiff claims is a part of the dower of Ann E. Tayloe, widow of James E. Tayloe.

Appeal by defendant from Peebles, J., at May Term, 1910, of Pitt. Civil action pending in the Superior Court of Pitt County and heard upon motion for judgment by default and inquiry. No answer has been filed, but on the 23d of April, 1910, defendant filed a petition and bond for removal to the Circuit Court of the United States, which at the hearing before Judge Peebles was urged in bar of the judgment by default.

<p>Appeal by iilaintifif from Peebles, J., at the January Term, 1910, of Pitt.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal by plaintiff from Ferguson, J., at tbe Spring Term. 1910, OÍ TYRRELL.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Wills, Interpretation of — Life Estates — Devise to Widow — Dower, Lieu of — Sale of Timber — Consent.</p> <p>A devise of lands to two minor granddaughters, and to testator’s “present wife”; her life right to and in said premises and lands for her support and for the support of said minor heirs, Held, (1) the words “for her support and the support of the minor heirs” do not constitute a condition precedent to the vesting of the life right or estate of the widow, or a condition subsequent by which the estate could be defeated; (2) the devise to the widow was in lieu of dower; (3) the granddaughters, now being of age, could not sell the standing timber on the lands without the consent of the widow, the life tenant.</p>

Appeal by plaintiffs from Ferguson, J., at Spring Term, 1910, of Chowan. The plaintiffs, as partners, sued the McMullan Lumber Company, a corporation, M. H. White, E. V. Perry and White & White ’Company, corporation.

<p>Life Insurance — Policy Contracts — Misrepresentations—Belief—Inducements.</p> <p>One who can read, and does not read his policy of insurance, cannot maintain an action to recover premiums paid thereon upon the ground that he was induced to pay them by false and fraudulent representations of the agent of the insurance company as to the plain terms and conditions of the written policy, when he admits he did not believe the agent at the time, for he could not therefore have been induced by the alleged misrepresentations to take the policy or pay the premiums, and especially as he was acting under the advice of his attorney when he paid the premiums.</p>

<p>1. Notes — Pleadings—Judgments—Interest—Default—Demand— Stipulations.</p> <p>In an action upon a promissory note before tbe'date named for its maturity, tbe note providing that if “ány instalment of interest is not paid when due or ten days after demand” tbe principal shall become due and payable, it is necessary to show that default was made under tbe terms of tbe proviso, for tbe note is not due till then; and when tbe allegation of a demand for tbe interest has been denied, a judgment cannot be bad upon tbe pleadings, for an issue of fact has been raised.</p> <p>2. Same — Waiver.</p> <p>Tbe provision in a promissory note that upon default of tbe payment of interest when due “or” within ten days after demand, “tbe principal shall become due and payable,” is a valid one. The word “or” is construed so as to read “nor” (within ten days after demand) ; and tbe waiver of tbe notice of dishonor and protest in a subsequent clause, wherein tbe makers and endorsers agree to become bound, notwithstanding an extension of time, is not construed as a waiver by tbe payee of tbe right to a demand for tbe payment of interest, before tbe principal sum shall become due.</p> <p>3. Same — Joint Makers.</p> <p>Judgment for plaintiff upon tbe pleadings will not be granted against one of two joint makers of a note for a default in tbe payment of interest in an action brought before maturity, it appearing that in bis answer he denies that demand was made on him under tbe terms of a provision in tbe note that it would become due and payable “if any instalment of interest is not paid when due or within ten days after demand,” 'and tbe admission of demand and default for tbe ten days of one of tbe makers is no evidence as to tbe admission of tbe other.</p>

<p>1. Eminent Domain — Condemnation—Power Express or Implied— Interpretation of Statutes.</p> <p>The right of condemnation, being in derogation of a common-law right, must be conferred by the Legislature either in express terms or by necessary implication.</p> <p>2. Same.</p> <p>When a legislative enactment does not, by express terms, confer on a public corporation exercising its powers strictly for the public benefit, the right of condemnation, this power does not arise by implication unless the necessity for it- is so strong that without it the grant of the powers conferred will be defeated. Dewey v. R. R., 142 N. C., 392, cited and distinguished.</p> <p>3. Same — County Commissioners — Public Landings.</p> <p>Chapter 23, Revisal, section 1318, subsection 19, does not confer in express terms the power on the commissioners to condemn land for a public landing on a navigable stream; there is' no provision for awarding compensation; and no necessity apparent which would imply this power; and construing this section in connection with the other provisions of the chapter, especially section 8, the intent of the Legislature is manifested that such power was not to be conferred; but the commissioners are confined to lands already dedicated to a public use sufficient to embrace or include the purpose proposed by them, or they must acquire a site by agreement or purchase.</p>

W. Ward, at the May Term, 1910, of Bertie. Plaintiff’s endorsees, and claiming to be holders, in due course, sued upon the following instrument: “WINDSOR, N. C., 18 December, 1907. ‘T July, 1909, after date, for value received, we jointly and severally promise to pay McLaughlin Bros., or order, fifteen hundred dollars, at the Bank of Windsor, N. C., with interest at six per cent per annum, payable annually.

, at the May Term, 1910, of Pas-QUOTANK. Civil action instituted in Superior Court Pasquotank County on 15 January, 1910. Return service on the McLean Contracting Company as follows: “Received 26 February, 1910. Served 26 February, 1910, by reading to and leaving a copy with Mr. F. H. Cameron, bookkeeper and acting agent for the above defendant company, the McLean Contracting Company.” At Spring Term, 1910, Superior Court Pasquotank County, before his Honor G-.

, at January Special Term, 1910, of WASHINGTON. Tbis is an issue of devisavit vel non. Tbe propounders of tbe will are Addison Everett, tbe brother of testatrix, tbe executor to tbe will, and certain other legatees. Tbe caveator is Harry Wheelock, tbe only son of testatrix. Tbis issue was submitted: Is tbe paper-writing propounded and every part thereof tbe last will and testament of Amelia Everett? Answer, No. From tbe judgment rendered tbe propounders appeal.

, at the February Term, 1910, of WlLSON. • - The facts are stated in the opinion. Appeal by defendants from the clerk of Superior Court of Wilson in a petition for partition. Both parties claim under a deed from S. A. Woodard, 21 January, 1884, to Jesse P. Dixon and wife, Elizabeth, for 400 acres.

<p>1. Tenants in Common — Partition—Infant—Parties.</p> <p>A proceeding in partition of lands among tenants in common does not bind an infant not represented in any manner nor properly made a party.</p> <p>2. Same — Ratification—Estoppel—Election.</p> <p>An infant having an interest in lands as a tenant in common, and not bound by partition had thereof by the other tenants, by joining in a deed from his co-tenants after his majority, to a part of the lands so held, and reciting the partition proceedings for description only, is only estopped to claim title as against those claiming under the deed; and is a ratification only of the lands conveyed; and his joining in the deed does not evidence his election to take the land conveyed therein as his part of the lands held in common.</p> <p>3. Same.</p> <p>0. bequeathed certain property to his wife and devised certain of his real property to his four surviving children, T., R., M., and L. T. died devising all of his estate therein to his mother for life, “at her death to” the plaintiff. R. conveyed his said interest to his mother. Afterwards, in proceedings in partition, the tenants in common divided the lands without in any manner making the plaintiff, who was then a minor, a party. In these proceedings, three certain tracts of the land were set apart to the mother, on one of which there was a storehouse; to one of 'the tracts the defendant claims title by mesne conveyances from the mother. After coming of age the plaintiff joined in a deed with the widow of C., conveying the storehouse, and subsequently the widow died. Held, (1) by joining in the deed to the storehouse property, the plaintiff is not estopped in his action for possession and accounting for the rents and profits of the other lands; (2) the doctrine of election has no application; (3) a recital in the deed of the proceeding in partition would only have the effect of estopping plaintiff from denying the existence thereof and the conclusive-ncss of its effect as a division of the real estate.</p> <p>4. Partition — Tenants in Common — Vendee.</p> <p>A vendee of an undivided interest in lands held in common can commit such waste as “is destructive of the estate and not within the usual legitimate exercise of the right of enjoyment of the estate.”</p>

, at tbe Spring Term, 1910, of JoNes.. Tbe issues, witb tbe responses of tbe jury, were as follows: 1. Is tbe plaintiff tbe owner of tbe lands described in the-complaint ? Ans. Yes. 2. Did tbe defendant, E. T. Bender, trespass on said lands? Ans. Yes. 3. What damages is plaintiff entitled to recover'of tbe defendant, E. T. Bender? Ans. $23.53%. Tbe defendant, Sam Hudson, died pending tbe action and before trial, and bis widow and son, bis only beir-at-law, were made parties.

, at tbe April Term, 1910, of GraveN. Civil action beard on exceptions to a report of referee and on issues submitted to a jury. There was judgment for plaintiff, and defendant excepted and appealed.

, at tbe June Term, 1910, of Cab-TEEET. Tbe action was instituted on 2 February, 1910, and tbe complaint of plaintiffs duly verified contained allegations to tbe effect tbat on tbe 27tb day of January, 1908, plaintiff’s intestate and defendant A. O. Newberry dissolved partnership theretofore existent between them, defendant A. O. Newberry buying out tbe interest of tbe intestate, and in payment for such interest conveyed to plaintiff’s intestate three tracts of land on which…

, at the April Term, 1910, of CeaveN. Civil action in ejectment tried at April Term, 1910, Craven Superior Court, his Honor Judge Peebles presiding. These issues were submitted: 1. Is the feme plaintiff the owner in fee simple and entitled to the possession of the lands described in the complaint? Answer: Yes. 2. Does defendant wrongfully withhold the possession of the land from the plaintiff ? Answer: Yes.. 3.

Plaintiff seeks to recover $1,120 upon tbe following bonds: $1,050.

, at tbe January Term, 1910, of FRANKLIN. Civil action to reeover damages for personal injury. Defendant moved to nonsuit; overruled ;■ exception. There was a verdict for plaintiff and from judgment rendered defendant appealed. The facts are sufficiently stated in the opinion.

<p>1. Removal of Causes — Injury to Realty — Venue.</p> <p>An action against a railroad company to recover damages for burning land is a local one in its nature and triable in the county in which the injury occurred (Revisal, section 419), and upon demand in writing (Revisal, section 425) should be removed to that county if brought in a different one.</p> <p>2. Same — Railroads.</p> <p>The Acts of 1905, chapter 367, amending the Code, section 192 (Revisal, section 424), providing that actions against railroads may be tried in the county where the plaintiff resided at the time the cause of action arose, expressly excludes actions for injury to lands by making it apply to other eases than those specified in the previous sections, and does not repeal or modify section 419 in regard to the venue of actions of this character, it being for damages for personal injuries. Prohst v. II. R. 139 N. G., 397, cited and distinguished.</p> <p>3. Same — Appeal and Error.</p> <p>An appeal directly lies from the refusal of the trial judge to remove a cause to the county in which injury to the plaintiff’s land, the subject of the action, was committed.</p>

, at tbe March Term, 1910, of MartiN. Civil action beard by Guión, J., at March Term, 1910, of tbe Superior Court of Martin County, on tbe motion of defendant for a change of venue of tbe trial. Tbe plaintiff instituted this action against tbe defendant, a corporation, in Martin County, to recover damages for tbe negligent billing of her intestate, J. W. Eoberson, while in tbe service of tbe defendant.

<p>Appeal from Coohe, J., at tbe November Term, 1909, of Edgecombe.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>1. Homestead — Actions to Declare Void — Parties — Independent Action — Procedure.</p> <p>After judgment obtained, tbe judgment debtor conveyed bis lands to defendant wbo bad tbe sheriff to lay off homestead of tbe judgment debtor in the lands seized by tbe sheriff under execution; tbe judgment creditor brings bis action against defendant and tbe sheriff to have exemption declared void. Held, An independent action was properly brought, tbe vendee and sheriff being the parties to be effected and not parties to'the original' action of debt; and if a motion in tbe cause weré held proper, tbe court would treat tbe present action as such and regard tbe summons a notice thereof.</p> <p>2. Homestead — Action to Declare Void — Independent Action — Procedure.</p> <p>An action brought to declare null and void a homestead laid off, under execution, in the lands of a judgment debtor, does not fall within the provisions of Revisal, 699, relating to an erroneous valuation or irregularities, and hence the plaintiff’s remedy is not by exception to the valuation of the allotment, and the principle of res judicata therein has no application.</p> <p>3. Homestead — Exemption Right — Estates.</p> <p>A homestead in lands is not an estate therein, but a “mere exemption right.”</p> <p>4. Homestead — Judgment Debtor — Vendee — Execution — Constitutional Law.</p> <p>To claim a homestead in lands (Constitution, Art. X, sec. 2) it must be owned and occupied by and allotted to the claimant at the time of the issuance of the execution; and the vendee of a judgment debtor cannot claim and have laid off a homestead in the lands conveyed as against a levy by the sheriff thereon under a judgment had against the vendor prior to his deed.</p> <p>5. Same — Constitutional Law — Legislative Interpretation — Precedents.</p> <p>A legislative construction of the Constitution, though not binding on the courts, is entitled to great weight. Revisal, 686, is in accordance with the views of the court,, and expresses the proper construction of Constitution, Art. X, see. 2.</p>

, at tbe March Term, 1910, of Camdeh. This was a motion made in a special proceeding to set aside tbe final decree theretofore entered, appealed to the Superior Court of Camden County and heard in term. The defendants, other than D. T. Pritchard, moved before the clerk of the Superior Court of Camden County to set aside and vacate the final decree, report of commissioners and order or partition in the special proceeding for partition, begun in said court on 9 June, 1898.

<p>■ Appeal by defendant from Guión, J., at the February Term, 1910, of DupliN.</p> <p>Tbe facts are sufficiently stated in tlie opinion.</p>

<p>1. Contracts — Warranty—Breach—Damages—Pleadings—Counterclaim — Procedure.</p> <p>When there has been a breach of warranty of quality in the sale of goods, the buyer may retain the goods and recover for the breach, by way of counterclaim to an action by the purchaser for the purchase price..</p> <p>2. Contracts — Warranty—Breach—Measure of Damages.</p> <p>The general rule is that the measure of damages for a breach of warranty in the sale of goods haying a market value is prima facie the difference in the market value at the time and place of delivery, between the goods as they were and as they would have been had the warranty been complied with.</p> <p>3. Same — Instructions.</p> <p>In the present case, being a sale of a piano with a warranty against certain defects, the above rule is substantially complied with, in the absence of a more specific prayer for instruction, by a charge, that “if there was a breach of warranty causing damages, the measure of damages would be the lessened value of the piano by reason of the defects complained of and shown to exist.”</p>

, at tbe May Term, 1910, of SakpsoN. Tbe facts are sufficiently stated in tbe opinion of tbe court. These issues were submitted: 1. Was tbe defendant guilty of negligence in tbe transmission of tbe message as delivered to it by tbe plaintiff ? Ans. Yes. 2. What damage, if any, bas plaintiff sustained by reason of tbe failure of tbe defendant to transmit tbe message as written and delivered to tbe defendant ? Ans. Five hundred and twenty-four dollars and ten cents ($524.10).

Civil action brought by the feme plaintiff against the Western Union Telegraph Company and the Postal Telegraph Company for damages caused by alleged negligence in the transmission and delivery of the following telegram, set out in the complaint and the original of which was introduced in evidence by the plaintiff, viz: Postal Telegraph Commercial Cables. Telegram. Time filed, Check, 10:15 P. M. Baltimore, Md., March 13th, ’09. 48 W. MF FE — 4 Paid. BUSH.

, at tbe April Term, 1910, of Edge-combe. This case was before tbe Court at Fall Term, 1909, and is reported in 151 N. C., 237. Tbe Court tben directed tbat an issue as to tbe jurisdiction of tbe Corporation Court of Manchester, Virginia, be submitted to tbe jury.

<p>Appeal from Gmon, J., at tbe April.Term, 1910, of Edge-COMBE.</p> <p>Civil action beard upon exceptions to report of referee.</p> <p>His Honor overruled defendant’s exceptions, affirmed tbe findings of fact of tbe referee and rendered judgment for plaintiff. Defendant excepted and appealed.</p>

<p>Appeal by plaintiff from O. H. Allen, J., at tbe May Term, 1910, of Johnston.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

<p>Domestic Corporations — Residence—Venue—Removal of Causes.</p> <p>Section 422, Revisal, fixing the residence of a domestic corporation at its principal place of business, should be construed in connection with see. 424, and a plaintiff may elect to sue the corporation for damages for a personal injury in the county of his residence at the time of the commencement of the action, or at the residence of the corporation, and if in the former county it may not be removed to the latter one, on the ground of improper venue. Propst v. R. R., 139 N. C., 397, and Perry v. R. R., this term, cited and approved.</p>

, at tbe October Term, 1909, of EbANKLIN. Tbe summons was issued in November, 1907, and complaint filed and duly verified, alleging that plaintiff was a white man; that be bad married defendant in January, 1904, and seeking divorce on tbe ground that defendant “was and is of negro descent within tbe third generation” and averring plaintiff’s ignorance of this fact at tbe time of tbe. marriage.

<p>Appeal and Error — Habeas Corpus — Objections and Exceptions— Facts Found — Conclusiveness.</p> <p>Upon an appeal from a judgment upon a writ of habeas corpus awarding tbe custody of a minor child, the Court will only review errors of “law or legal inference,” Constitution, Art. 1Y, see. 8, and not the findings of fact made by the lower court upon competent evidence; and Revisal, 1854, allowing an appeal in such cases, does not affect the matter.</p>

<p>Appeal and Error — Former Appeal.</p> <p>The trial judge having followed the opinion in this--case reported 150 N. 0., 269, no error has been committed by him.</p>

II. Allen, J., at tbe May Term, 1910, of JOHNSTON. Civil action to recover damages for alleged negligence. Tbe defendant in apt time made motion to nonsuit, wbicb was overruled. Defendant excepted and appealed. There was a verdict and judgment for plaintiff, and defendant appealed.

<p>Appeal from Guión, J., at the February Term, 1910, of Dup-LIN.</p> <p>Motion in the above cause to vacate and set aside the decree of sale and confirmation entered in above cause 9 February, 1883, in behalf of Kate Rackley, Florence Glisson and Theodocia Spellman. Issues of fact were submitted to a jury at February Term, 1910, of the Superior Court of Duplin County.</p> <p>1. When was the petitioner Kate Rackley born? Answer: 1862.</p> <p>2. Were the petitioners Kate Rackley, Florence Glisson and Theodocia Spellman served with summons in the special proceedings to sell the land of Daniel Glisson to make assets to pay debts, entitled Mary Glisson, admrx., v. Florence Glisson et als. ? Answer: No.</p> <p>3. Were the petitioners Florence Glisson and Theodocia Spell-man married prior to tbe institution of tbe action to sell land to make assets, and were tbeir husbands living at tbe time? Answer: Yes.</p> <p>4. Were tbe other devisees under tbe will of Daniel Glisson and children of Robert Glisson served with summons in tbe action of Mary Glisson, admrx., to sell tbe land of Daniel Glis-son? Answer: No.</p> <p>5. Did E. M. Roberts, in good faith and without any notice of any actual defect in tbe proceedings under which tbe land described in this proceeding were sold, buy said land at such sale ? Answer: Yes.</p> <p>Tbe court charged tbe jury that if they believed tbe evidence they would answer tbe issues and each of them as found in the' record. To tbe submission of tbe fifth issue and tbe charge upon it tbe petitioners excepted, and from tbe ruling ’and judgment of tbe Court appealed.</p>

At tbe close of tbe evidence tbe defendant railroad company .moved for judgment as of nonsuit. Motion allowed. Plaintiff excepted and appealed. Miss Hobbs, tbe defendant, offered as a witness by tbe plaintiff, testified as follows: “I live in Clinton. I was working at Hawthorne, Florida.

, from PeNdek, beard 6 April, 1910, upon a motion to continue a restraining order to tbe bearing. His Honor disallowed tbe motion and dissolved tbe restraining order, and plaintiff appealed.

<p>1. Interpleader — Pleadings—Defect of Statement — Procedure — Demurrer.</p> <p>A defect of overstatement in a bill of interpleader is waived by answers of the parties defendant, such defect should be availed of by demurrer.</p> <p>2. Interpleader — Pleadings—Tender—Interest.</p> <p>An assessment life insurance company having filed its bill of interpleader avowing its readiness to pay into court the amount of its policy claimed by two contestants, is assumed, nothing else appearing, to have continued ready and able to pay upon the order of court, and is not chargeable with interest on the amount by reason of delay caused by litigation, in favor of the successful defendant.</p> <p>3. Interpleader— Attorney's Fees.</p> <p>A successful interpleader is not entitled to reasonable attorney’s fees incurred in litigation over the funds held by it as a stakeholder.</p>

H. Allen, J., at the March Term, 1910, of HaRNETT. This was an action instituted to recover damages for waste. The plaintiffs are the heirs of one Kinion Barefoot, and allege that they are the owners of the fee, subject to the life estate of Elizabeth Musselwhite (formerly Elizabeth Barefoot, the widow of L. L. Barefoot), as tenant by dower. The waste is charged to have been committed by the tenant in dower through her lessees.

, at tbe April Term, 1910, of Edge-combe. Civil action to recover damages for physical injury caused by alleged negligence on part of defendant company. On motion at tbe close of plaintiffs testimony, there was judgment of nonsuit, and plaintiff excepted and appealed.

II. Allen, I., at the April Term, 1910, of Wake. Special proceedings for partition. From the judgment adjuding that the plaintiffs, the children of Alfred Jonés, were tenants in common of an undivided one-half interest in the tract of 590 acres with the defendant Myatt, the defendant appealed.

, at tbe March Term, 1910,- of Nash. In August, 1902, William R. Williams died, resident in Nash County, seised of a tract of land containing about a hundred acres, of two town lots in the city of Rocky Mount, and of a small quantity of personal property. He left surviving him his widow, the defendant, Carrie Williams.

H. Allen, J., at the March Term, 1910, of J OHNSTON. 1. Was the plaintiff, J. H. Horne, injured by the negligence of the defendant, as alleged in the complaint ? Answer: Yes. 2. Did the plaintiff, J. H. Horne, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No. 3. What damage, if any, has the plaintiff sustained ? Answer: $5,000. Motion by defendant to set aside the verdict; motion denied. From the judgment rendered the defendant appealed.

<p>1. Divorce — Issues Material — Necessary Findings.</p> <p>Material issues raised by the pleadings must be submitted to and answered by the jury, and tiiey must be sufficient to support tbe judgment and dispose of the matters in controversy.</p> <p>2. Same — Condonation.</p> <p>The issue of adultery in an action for divorce from1 the wife is material, and must be answered to establish the fact; and an answer to a subsequent issue finding that the offense, if committed, has been condoned does not necessarily find the fact of adultery.</p> <p>3. Divorce — Issues—Condonation—Pleadings — Objections and Exceptions.</p> <p>In an action for divorce for adultery of the wife, an objection to an issue of condonation because not specially pleaded must be made at the time the issue is submitted; thereafter it is too late.</p>

<p>1. Evidence — Depositions—Objections Waived.</p> <p>The objections to the reading of the depositions of a witness under Rev., 1648, upon the ground that the subpoena, though duly issued, was returned “not to be found” is waived if not taken before the beginning of the trial.</p> <p>2. Evidence, Immaterial — Depositions — Objections — Harmless Error.</p> <p>Evidence merely immaterial in a deposition is harmless. A new trial will not be granted therein unless for prejudicial error.</p> <p>3. Evidence — Depositions—Witnesses—Subpoena—Interpretation of Statutes.</p> <p>By reasonable construction, Revisal, 1645 (9), means that where the deposition has been regularly taken, and where the witness is more than seventy-five miles from the place of trial without the consent of the party, and the presence of the witness cannot be procured, the deposition may be read if a subpoena has been duly issued — not necessarily served.</p>

H. Allen, J., at tbe May Term, 1910, of JOHNSTON. ' Tbe case was beard on facts admitted in tbe pleadings and from which it appeared: 1. That John Raines died in 1899, seised and possessed of a tract of which tbe land in controversy was a part. 2.

R. Allen, J., at tbe December Term, 1909, of WayNE. Motion to set aside judgment.

B. Allen, J., a jury being waived, at May Term, 1910, of Cumbebland. On ber application, Mary E. Hall was made a party, and she claimed the title in fee to the land described. His Honor made the following findings of fact: 1.

, at tbe February Term, 1910, of ObAVEN. Civil action to recover damages for wrongfully cutting timber on lands of plaintiff. At tbe close of plaintiff’s testimony and of tbe entire testimony there was motion by defendant to nonsuit plaintiff under statute; motion overruled and defendant excepted. Tbe court charged tbe jury, and on issues submitted tbe following verdict was rendered: 1.

li. Allen, J., at the May Term, 1910, of ROBESON. These issues were submitted: 1. Was tbe plaintiff Oscar Warwick in tbe employ of tbe defendant at tbe time of tbe injury alleged in tbe complaint? Ans., Yes. 2. Was tbe injury received by plaintiff caused by tbe negligence of tbe defendant, as alleged in tbe complaint ? Ans., Yes. 3. Did tbe plaintiff, by bis own negligence, contribute to bis own injury? Ans., No. 4.

<p>Appeal from 0. H. Allen, J., at tbe April Term, 1910, of "Wake. *</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>■Appeal from W. B. Allen, J., at tbe April Term, 1910, of ROBESON.</p> <p>Tbis action was brought to recover tbe value of services alleged to bave been rendered by tbe plaintiff to tbe intestate of tbe defendant. Tbe intestate was tbe step-grandfatber of tbe plaintiff. 'With, respect to tbe relationship of tbe parties, tbe court charged tbe jury that ordinarily when one renders services for another, in tbe absence of an express promise to pay for them, tbe law implies a promise to pay tbe reasonable value of such services, but tbis is not tbe rule as between a child and its. •parent, or one standing in tbe relation of a parent. In that case, tbe presumption is that the services were rendered gratuitously, that is, without any intention to charge for tbe same, and in order to recover for services thus rendered, tbe plaintiff must show a promise to pay for them, and consequently, in tbis ease, tbe burden is upon tbe plaintiff to satisfy tbe jury by tbe greater weight of evidence that H. T. Oxendine, tbe step-grand-fatber of tbe plaintiff, promised to pay him for tbe services rendered. If tbe plaintiff bad so satisfied tbe jury, be is entitled to recover what they find from tbe evidence to be tbe reasonable value of tbe services, but if tbe jury find that there was no promise, tbe plaintiff would not be entitled to 'recover anything. There were other instructions given to tbe jury, but it is not necessary that they should be set forth. There was a verdict for tbe plaintiff, and from tbe judgment thereon tbe defendant appealed.</p>

, at tbe June Term, 1910, of LeNoie. Civil action on demurrer by tbe defendant to tbe complaint. His Honor sustained tbe demurrer as to one of tbe defendants* from wbicb ruling no appeal was prosecuted and overruled it as to tbe defendants Loftin & Pollock, assignee, wbo appealed to tbis Court.

L. Ward, J., at the May Term, 1910, of VaNCe. Tbis action was brought on a policy of insurance to recover a loss alleged to have been sustained by the plaintiff. In October, 1907, Walter H. Briscoe was injured by falling into a sunken tub or shallow well of hot water on the land of J. H. Bridgers, in Henderson, N. O., a narrow strip of land four feet wide between the Henderson Amusement Company building or theatre and the land of the Henderson Lighting and Power Company.

, at the April Term, 1910, of Edge-COMBE. It was shown that feme plaintiff, owner of a farm, “bad erected a building and therein established a steam gin, the engine and boiler enclosed in brick and same was being used for farm ginning.” That said plaintiff took out a policy of insurance on the gin, engine and boiler in the sum of $1,000, the contract being the ordinary standard form, with a rider attached to the face of the policy, on which was a heading, “For Gin Systems…

<p>I. Witnesses — Opinion Evidence — Experience—Weight.</p> <p>One who has testified that the testatrix, in his opinion, had capacity to make the will caveated, may testify as to what he had observed as to the mental condition of another, who had suffered for many years from an attack similar to that of testatrix, when confined to the purpose of aiding the jury in considering the weight to be given his testimony; this being competent as “opinion evidence” as distinguished from “expert evidence.”</p> <p>2. Appeal and Error — Argument, Order of — Procedure.</p> <p>The ruling of the lower court upon the right to open and conclude is not appealable by defendant when he has introduced evidence.</p>

<p>1. Negotiable Notes — Endorsement—Title—Due Course — Equitable Owner — Defenses.</p> <p>A purchaser of a negotiable instrument, for value, before maturity, but without endorsement, becomes the holder of the equitable title only, and takes subject to any defense the maker may have against the original payee, as for one to become a purchaser in due course he must have acquired title by endorsement. Revisal, secs. 2178, 2198; and in the absence of endorsement of the note sued on in an action by the purchaser, the plaintiff is not entitled to judgment upon evidence which shows a good defense-in favor of the maker against the payee.</p> <p>2. Notes — Purchase Price — Equities—False Representations — Damages — Date of Credit.</p> <p>In an action on a note given for tlie purchase price of timber, the jury found that there was a false and fraudulent representation as alleged in the answer, in regard to encumbrances on the timber, held that under an issue calling merely for a general assessment of damages, it was not error for the lower court to refuse to sign a judgment reducing the amount of the. note in the amount of the damages assessed, as of its date, for the amount thus found should be deducted as of the time of trial, no date for the credit haying been fixed by the verdict.</p>

, at tbe April Term, 1910, of New Hawovee. Civil action to recover damages for a personal injury. Tbe following issues were submitted: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant? Ans., Yes. 2. Did tbe plaintiff by bis own negligence contribute to bis injury? Ans., No. 3. Wbat damage, if any, bas tbe plaintiff sustained? ■ Ans., Five thousand dollars ($5,000). 4.

<p>Pleadings — Amendment—Cloud on Title — Nonsuit—Issue.</p> <p>In a proceeding for partition of land, plaintiffs, by inadvertence in describing tbe land, included two acres in which they claimed no interest. The Court, without objection, allowed an amendment expressly excluding that part of the land from the description. Appellant, served with process only in behalf of his children who lived with him, filed an answer asserting title in himself to the two acres and asking that plaintiff’s claim, which was a cloud upon his title, be removed. Held, proper to refuse the submission of an issue based upon the averment of the answer after the amendment had been made without objection, which left the appellant without any basis for his alleged counterclaim, he not claiming any interest in the remainder of the land. Held f urther, that the amendment was not in the nature of a nonsuit, but was intended to remove vagueness from the description of the land.</p>

<p>Appeal from G. M. Cooke, J., heard in chambers, 1 March, 1910, from Vance.</p> <p>Petition for writ of- habeas corpus.</p> <p>Tbe petition was filed by Nannie Green, mother of the child, who was and has been for some time in the care and custody of respondents, Prince Jones, uncle of petitioner, and his wife Laura.</p> <p>On the hearing, the court found as facts among other things, that the child was an illegitimate child 6f the petitioner, Nancy Green, and would be nine years of age in May, 1910; that she was being properly and well cared for by respondents, who are reputable colored people; Prince Jones, being a minister, having a church under his charge, owning about fifty acres of land which he has bought, but not fully paid for; that Laura Jones, his wife, is a reputable colored woman, and that she and her husband are capable of raising and properly providing for the child and are greatly attached to it; that the child has been and is being well and properly cared for and maintained, and she has become greatly attached to the said Prince Jones and his wife, and says she does not wish to leave them. It appears from examination of the child that she has been sent to school and to Sunday-school, and is now well advanced in her studies for one of her age and condition in life; that Nannie Jones, the mother, with her children, had been living for some time as a member of the family with Prince Jones and his wife, paying no board, but working as a member of the family until about five years ago, when she married Simon Green and went to live with him; “that Simon Green and his wife are respectable colored people and are capable of rearing and providing for the child; that they have from the date of their marriage, from time to time and repeatedly, applied to respondents to let them have the child, but they declined to do so. Upon one occasion they attempted to take the child away from them by force, and when they had the child in the buggy the child screamed, and the wife of Prince Jones took her out of the buggy.”</p> <p>Upon these the controlling facts relevant to the inquiry, the court entered judgment as follows:</p> <p>(a) That the child is not illegally restrained of its liberty.</p> <p>(b) That the welfare and interests of the child would best be promoted by permitting her to remain with respondents.</p> <p>(c) And the court doth adjudge and decree that the said Prince Jones and bis wife, Laura Jones, are entitled to tbe care and custody of said Mary Jane Jones until sbe attains tbe age of fifteen years, at wbicb time sbe may select between tbe petitioner and tbe respondents; but tbe court dotb further adjudge tbat petitioner and ber husband shall have tbe right at all proper hours to visit tbe child,' and tbat tbe child shall be permitted to visit them whenever sbe should so desire.</p> <p>Petitioner excepted and appealed.</p>

<p>1. Contracts — Seal—Evidence—Original Instrument — Presumptions.</p> <p>Although the words “signed, sealed,” etc., may appear in the face of a written obligation of guaranty, no presumption of a seal is raised when the original undertaking is in evidence, and discloses an entire absence of a seal.</p> <p>2, Contracts, Interpretation — Statute of Frauds — Default of Another —Evidence—Written—Sufficiency—Seal.</p> <p>When the instrument sued on is a written obligation upon the sureties for the faithful performance by another of the duties as manager, that he shall render a just and true account of all moneys, merchandise, etc., the relationship of debtor and creditor is not created, but it is sufficient to charge them, under the statute of frauds, without the seal, to answer the default of another.</p> <p>3. Contracts — Written—Conditional Delivery — Evidence.</p> <p>It is competent to show that a written instrument to answer for the faithful discharge of the duties of another as manager of a corporation, or to answer for his debt or default, etc., was handed by one of the signers to the obligee therein named, subject to the control of the person delivering it, or upon an agreed condition, and not as a completed Instrument; and when there is evidence that the manager has delivered such instrument to the president of the corporation for which he acts, upon the understanding that it was to be delivered to the board of directors when another had signed as surety, the person to whom it was delivered is a mere depository until the condition is complied with.</p>

, at the July Term, 1910, of Columbus. Motions to nonsuit were overruled and following issues submitted ; 1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint ? 2. Did the plaintiff by his own negligence contribute to his own injury? 3. What damage is the plaintiff entitled to recover?

<p>Appeal by defendant from O. II. Allen, J., at the April Term, 1910, of Waile.</p>

J. Adams, J., beard at chambers at Durham, by consent, 21 March, 1910. Civil action to recover judgment against an insolvent corporation, wind up its affairs and make disposition of its assets, heard on motion to confirm a sale of the plant by receiver. The sale of the property, being a plant for the manufacture of brick and some land upon which same was situated, was made after due advertisement on 1 March, 1910.

, at tie February Term, 1910, of CHATHAM. Civil action to recover damages for failure to deliver a tele--gram. The following is a copy of the telegram as set out in the complaint: Aug. 22, 1907. J. W. Beal, Gulf, N. C. Come at once. Bob hurt very bad. A. B. Jenkins, Yass, N. C. The telegram it is admitted was not delivered to the sendee, and this action is brought to recover damages for alleged mental anguish. These issues were submitted to the jury: 1.

<p>1. Debtor and Creditor — Disputed Account — Check in Full — Satisfaction.</p> <p>When a creditor receives and collects a check sent by his debtor upon condition that it shall be in full for a disputed account, he may not thereafter repudiate the condition annexed to the acceptance.</p> <p>2. Same — Independent Accounts — Intent—Evidence—Questions for Jury.</p> <p>But when there is evidence tending to show that there were two independent accounts, and after a correspondence between the creditor and debtor as to one of them containing disputed items, the latter sent the former a cheek “in settlement of all accounts which you may have against me to this date,” it is for the jury to find the intent, upon the facts and circumstances of this case, as to whether this check was given and accepted to include the other account, now in suit, which the debtor had previously denied owing, and which, apparently, was not the subject of the correspondence, or intended to be covered by the check.</p>

B. Allen, J., at the August Term, 1910, of UNION. Action to foreclose a mortgage or deed in trust. The defendant excepted to the decree of foreclosure as to certain particulars and appealed.

Motion to set aside judgment by default rendered in tbe cause at June Special Term, 1909, of tbe Superior Court. It is admitted tbat tbe motion was entered and notice given within twelve months from the rendition of the judgment, and that it was continued from term to term. The judge below granted the motion and set aside the judgment. Plaintiff appealed.

<p>Appeal and Error — Compulsory Reference — Exceptions—Procedure.</p> <p>When there is a plea in bar, a party to the action may except to an order of reference made by the trial judge and appeal at once, or wait until there is a final judgment and then appeal.</p>

J. Adams, J., at tbe March Term, 1910, of Dueham. This action was brought to recover damages for the negligent failure to transport and deliver a certain carload of corn, and for negligently failing to take proper care of the corn while in the custody of the defendant, whereby it became overheated and unfit for use.

<p>1. Railroad — Fire Damage — Logging Roads — Liability.</p> <p>A private steam railroad for logging purposes is liable in like maimer as quasi public railroad corporations, for damages by fire caused from its locomotives igniting combustible materials along its right of way, or by the negligent operation and running of its locomotives.</p> <p>2. Same — Independent Contractor — Foul Right of Way.</p> <p>A company operating a steam railroad for logging purposes is liable in damages for fires caused by its locomotives by reason of the foul condition of its right of way, so dangerous that it might reasonably have been anticipated that injury would thereby occur to adjacent owners; and the principle of independent contractor will not avail the employer in such instances.</p> <p>3. Same — Casual—Collateral Acts.</p> <p>The instance in which the employer will be held liable for damages by fire caused to adjacent land owners, arising from the filthy condition of the right of way of its steam road for logging timber, operated by an independent contractor, does not apply to such negligent acts of the employees of the independent contractor as are casual or collateral to the work contracted for as distinguished from those which the contractor agrees and is authorized by his contract to do.</p> <p>4. Railroads — Fire Damage — Negligence—Locomotives—Operation.</p> <p>The operation of a defectively equipped engine, or of a good engine not carefully managed, or managed by an unskillful engineer, is sucli source of danger to the adjacent land owners from fire that an employer cannot relieve himself of the consequent damage under a contract with an independent contractor. •</p>

<p>Appeal from Adams, Jat tbe February Term, 1910, of Guilpobd.</p> <p>Civil action beard on demurrer to tbe complaint. Tbe plaintiff alleged tbat on 3 August, 1907, be was a passenger on one of defendant’s trains, running from Warsaw, N. C., to Goldsboro, N. O., traveling from tbe former to tbe latter station; tbat be tendered tbe conductor tbe fare in casb for bis transportation, to-wit, 68 cents, tbe distance between 29 miles and tbe legal rate per mile being 2% cents; tbat tbe conductor declined to receive tbis, demanded 85 cents, being tbe fare at tbe rate of 3 cents per mile, and upon plaintiff’s refusal to pay tbe fare demanded, wrongfully ejected bim from tbe train, to bis damage. Tbe defendant demurred upon tbe following grounds:</p> <p>1st. Because it appears upon tbe face of tbe complaint tbat tbe plaintiff did not tender to tbe defendant tbe legal rate or charge fixed for passenger fares between tbe points alleged in tbe complaint.</p> <p>2nd. Because it further appears upon tbe face of tbe complaint tbat it does not state a cause of action in tbis, tbat tbe cause of action, as set out in tbe complaint, is contrary to tbe statute laws of North Carolina (see sec. 6, cb. 144 of tbe Acts of tbe General Assembly of North Carolina, extra session 1908), and tbat under said statute tbe plaintiff cannot maintain tbis suit against tbe defendant corporation.</p> <p>Tbe defendant, tbe Atlantic Coast Line Eailroad Company, demurs to tbe second cause of action alleged in said- complaint for tbe reason that it appears upon tbe face thereof that tbe plaintiff does not state a cause of action against the defendant, in that it appears upon said complaint that tbe plaintiff failed to tender to tbe defendant tbe proper rate of passenger fare between tbe two stations alleged in tbe complaint, and was lawfully and properly ejected from tbe train for failure to tender same, and that be lost bis right, as a passenger upon said train, and also lost bis right to return to tbe same after be bad been properly ejected.</p> <p>Tbis action was begun on 24 September, 1907. His Honor overruled tbe demurrer and defendant appealed to tbis Court.</p>

, at tbe January Term, 1910, of WASHINGTON. . Civil action trespass q. c. f. It was admitted or established that the land claimed by plaintiff was embraced within a grant to Jos. Dwight, dated March, 1758, and that the eastern boundary of plaintiff’s land was coterminous with the eastern boundaries of this grant. The boundary of the Jos.

<p>1. Objections and Exceptions — Evidence—Admissibility—Appeal and Error — Procedure.</p> <p>Exceptions to the admissibility of evidence must be taken in apt time during the trial, and when the record discloses they were taken for the first time in grouping the exceptions on appeal under Rule 19 (2) they will not be considered.</p> <p>2. Appeal and . Error — Verdict—Set Aside — Evidence—Procedure.</p> <p>For the Supreme Court to consider an exception to refusal of the trial court to set a verdict aside for the lack of evidence to support it, the record must show that a motion in the lower court to that effect had been made and refused, before the case was submitted to the jury.</p>

<p>1. Reference — Findings—Evidence.</p> <p>If affirmed by tbe judge, tbe referee’s findings are conclusive when there is any evidence tending to support them.</p> <p>2. Reference — Jury Trial — Objections and Exceptions — Waiver.</p> <p>A mere exception to an order of reference is not sufficient to entitle the party excepting to a trial by jury upon an adverse finding of fact by the referee, and this right is waived by his not demanding the jury trial in his exceptions to the report.</p>

<p>Appeal by defendant from C. Q. Lyon, J., at the September Term, 1910, of AlamaNCe.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

<p>Appeai from Whedbee, J., at tbe August Term, 1910, of SAMPSON.</p> <p>Civil action beard on motion to make permanent a preliminary order appointing a receiver of tbe property of McLamb & Co. On tbe admissions and facts in evidence bis Honor entered judgment confirming tbe appointment of receiver and making provision for realizing on tbe assets of tbe firm, proof of claims, etc.</p> <p>Tbe defendant A. E. Rieb, a creditor and claimant under a mortgage, excepted and appealed.</p>

, at the July Term, 1910, of Columbus. This action was brought by M. C. Watson, administratrix o£ D. J. Watson, to recover damages for the alleged negligent killing of D. 3. Watson, tbe intestate of plaintiff, on tbe nigbt of 17 April, 1909, by being run over by a logging train operated on the line of railway of the defendant company.

<p>1. Insurance Policy — Fraud or Mistake.</p> <p>Tbe pleadings in this case, brought to reform a policy of life insurance for mistake and fraud, are sufficient. Jones v. Ins. Oo., 151 N. C., 54, and other like cases, cited and approved.</p> <p>2. Same — Waiver—Instructions—Reversible Error.</p> <p>In an action for the reformation of a life insurance policy for fraud and mistake, the plaintiff’s evidence tended to show that the defendant’s agent had made fraudulent misrepresentations inducing the contract, that plaintiff would be repaid his premiums and interest at maturity, and the defendant contended that its agent had explained to the plaintiff that the representations were untrue and not contained in the policy, and the latter continued thereafter for years to pay his premiums without objection. The explanation by defendant’s agent was denied by plaintiff, who contended that reassuring statements were made several years prior to the time fixed by the defendant’s said agent. Held, the defendant was entitled to the charge that if the plaintiff continued to pay the premiums with knowledge of the facts he thereby waived any benefit except as provided by the policy; and it was reversible error for the court to add, “Unless you further find from the evidence that the plaintiff was lulled into security or was led to believe” otherwise, there being no evidence thereof.</p> <p>3. Insurance — Fraud and Mistake — Waiver — Issue, New Trial on One.</p> <p>In an action to reform a life insurance policy for fraud or mistake, the sixth issue was upon the question of plaintiff’s waiving his right to rely upon the alleged false representations, and in this issue alone error was found on appeal. It being apparent that the matter involved in this issue is entirely distinct and separate from the matters involved in the others, without danger of complication, a new trial is ordered on the sixth issue only.</p>

Ajppeal from Biggs, J., at the May Term, 1910, of Kowah. Civil action for divorce a mensa. These issues were submitted and answered by the jury: 1. Were plaintiff and defendant married to each other as alleged? Answer: Yes. 2. Has the plaintiff been a resident of this State for two years prior to the commencement of this action, and the filing of the complaint ? Answer: Yes. 3.

, at tbe August Term, 1910, of G-uil-EORD. Civil action to recover damages for an injury alleged to have been received by plaintiff in a collision between Ms automobile and defendant’s electric car in tbe town of 'W’augbtown, N. C. These issues were submitted to tbe jury: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2. Did the plaintiff contribute to his injury, as alleged in the answer? Answer: Yes. 3.

J. Adams, J., at the April Term, 1910, of Guilford. This was a civil action brought by the plaintiff to recover damages of the defendant for personal injuries alleged to have been caused Mm by the negligence of the defendant in failing to keep in proper repair Cumberland Street. From a judgment for plaintiff the defendant appealed.

<p>1. Nonsuit — Evidence—How Construed.</p> <p>On a motion to nonsuit, tlie evidence of the plaintiff must be accepted as true, and considered in the light most favorable to him.</p> <p>2. Carriers of Freight — Bill of Lading — Live Stock — Damages — Stipulation — Reasonable Notice.</p> <p>The purpose of the stipulation in a live stock bill of lading requiring formal written notice to be given the carrier of his loss and intention to demand compensation before removing the stock from the carrier’s premises does not relieve the carrier of its liability for negligence, but is simply to give such notice as will enable it to protect itself from fraudulent or unjust claims.</p> <p>3. Same — Exceptions.</p> <p>The failure to give the carrier the formal written notice of claim for damage to stock through its negligence, shipped under and required by its live stock bill of lading, does not bar a recovery when it appears that the conductor had knowledge thereof while in transit; that the absence of the agent from the station at destination prevented the required notice from being given him, and the stock was removed some two hundred yards from the depot and there examined and inspected by the carrier’s inspector before they were intermingled with other live stock. Jones v. B. B.. 148 N. C., 580, cited and approved.</p>

<p>Appeal by plaintiff from ~W. J. Adams, J., at tbe April Term, 1910, of Guilford.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

J. Adams, J., at the March Term, 1910, of Dubham. Civil action to recover of defendant an amount alleged to be due upon a certificate of insurance issued by defendant to C. W. Page, deceased, the intestate.

, at tbe February Term, 1910, of Foe-syth. Civil action to recover for money bad and received and damages for fraudulent representations. These issues were submitted to tbe jury: 1.

, at the April Term, 1910, of AwsoN. Civil action for damages for an assault. These issues were submitted: First. Was the plaintiff injured by the defendant, Hugh Horne, as alleged in the complaint? Answer: Yes. Second. What damages, if any, is the plaintiff entitled to recover? Answer: Twenty-five hundred dollars. The court overruled motion for new trial and rendered judgment for plaintiff, from which the defendant appealed.

<p>1. Appeal and Error — Exceptions Grouped — Supreme Court Rules— Compliance.</p> <p>Supreme Court rule 19 (2), requiring the appellant to group and number all the exceptions relied on and set them out immediately after the statement of the case, is not complied with by showing in the record the various exceptions numbered, but on different pages, when there is no assignment of errors at the end of the case, either before or after the judge’s signature; and the appeal will be dismissed under rule 20 upon the failure of appellant to comply with rule 19 (2).</p> <p>2. Objections and Exceptions — Appeal and Error — Assignments of Error.</p> <p>Attention is called to the distinction between “exceptions” and “assignment of errors.”</p> <p>Brown, J., dissenting; Hoke, J., concurring in the dissent.</p>

<p>Appeal by plaintiff from Guión, J., at tbe April Term, 1910, of Edgecombe.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe court.</p>

<p>1. Evidence — Impeaching Witness — Explanations.</p> <p>On redirect examination, the testimony of a witness explaining an answer made on the cross-examination, tending to impeach him, is competent.</p> <p>2. Evidence, Corroborative — Restrictions—Instructions—Appeal and Error.</p> <p>When the evidence is corroborative, the failure of the trial court to restrict it will not be considered on appeal unless the objecting party asks for an instruction to that effect.</p> <p>3. Declarations — Boundaries—Interest.</p> <p>Declarations of the deceased as to a disputed comer of his lands are incompetent unless made against his interest.</p> <p>4. Evidence, Newly Discovered — Procedure—New Trial.</p> <p>If possible, a motion for a new trial for newly-discovered evidence must be made in the Superior Court.</p> <p>5. Same — Supreme Court — Opinion.</p> <p>If the newly-discovered evidence upon a motion for a new trial in the Supreme Court is ascertained after taking an appeal, the motion will be entertained in this Court; it must be submitted without argument, and will be decided without giving a written opinion, or discussing the facts.</p> <p>6. Evidence, Newly Discovered — New Trial — Discretion.</p> <p>Whether a motion for a new trial upon newly-discovered evidence is made in the Superior or Supreme Court, its allowance is a matter in the discretion of the court.</p> <p>7. Evidence, Newly Discovered — New Trial — Requirements.</p> <p>A motion for a new trial for newly-discovered evidence will be denied when such evidence is merely contradictory of a witness examined at the trial, or merely discredits an opposing witness or is cumulative.</p> <p>8. Evidence, Newly Discovered — New Trial — Diligence—Questions for Court.</p> <p>Tlie applicant should state the efforts lie used to get the newly-discovered evidence upon which a motion for a new trial is made, so that the court may determine the matter, and his statement is insufficient, that “every means had been used to find out where the witness was.”</p> <p>9. Evidence, Newly Discovered — New Trial — Affidavits — Reply— Matter of Right — Discretion.</p> <p>Affidavits in reply to a motion made for a new trial for newly-discovered evidence may be filed as a matter of right; and it is within the discretion of the court whether the appellant may file additional affidavits.</p>

G. Lyon, J., at tbe April Term, 1910, of ANSON. Civil action, to recover damages for alleged negligent killing of tbe intestate. Yerdiet and judgment for plaintiff, and defendant excepted and appealed. Tbe facts are sufficiently stated in tbe opinion of tbe court.

R. Allen, J., at tbe February Term, 1910, of Columbus. Civil action to recover land. It was admitted that tbe property in controversy had belonged to Mrs. Sarah E. Wooten, wife of Shade Wooten, Esq., and that in June, 1893, she made a deed, purporting to convey the property.

, at tbe May Term, 1910, of AlamaNOe. Civil action to recover damages for physical injury caused by alleged negligence on tbe part of defendant company. In apt time there were motions of nonsuit, under tbe statute, overruled and defendant excepted. Tbe jury rendered tbe following verdict : 1. Was tbe plaintiff injured by negligence of tbe defendant as alleged in tbe complaint? A. Yes. 2. Did the plaintiff contribute to bis injury by bis own negligence? A. No. 3.

<p>Appeat^ by plaintiff from Long, J., at tbe May Term, 1910, of Stokes.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

H. Allen, J., at tbe July Term, 1910, of Lee. Tbe plaintiff sued upon tbe following note: $1,000. SaNeoed, N. O., 8 July, 1907. 1 September, 1908, for value received, we jointly and severally promise to pay Baubard Bros., of Martinsville, Ind., or order, one thousand dollars, at tbe Bank of Sanford, Sanford, N. C., witb interest at 6 per cent per annum, interest payable annually, witb attorney’s fee and without any relief whatever from valuation of appraisement laws.

, at chambers, 27 August, 1910, from Ieedell. This is an action in which the plaintiff alleges that he is the duly elected and qualified treasurer of the “Lincolnton Graded School Committee,” a corporation created by Private Laws of 1895, ch. 3, as amended by Private Laws of 1907, ch. 170; that the defendant has the books, documents and papers of the said office in his possession and has refused, after demand, to deliver them to him.

<p>1. Contracts, Written — Parol Evidence — Admissibility.</p> <p>When tbe subject matter of a contract does not require that it be in writing, and it appears that it was partly written and partly oral, tbe oral part may be proved when the written part is in evidence, if the written part is not thereby varied, altered or contradicted.</p> <p>2. Same — Parent and Child — Bonds—Payment Upon Contingency— Advancements.</p> <p>The father sued his daughter and son-in-law to recover upon a bond given him by them in a certain sum due one day after date. Held, it was competent to show in defense by parol evidence that by a contemporaneous oral agreement, the defendants were to pay and did pay certain amounts upon the bond, and that the balance was only to be accounted for in settlement with the father’s estate as an advancement, and that no actual payment thereof was to be made unless needed to pay debts of the estate. Such an agreement did not contradict the terms of the bond, and thereunder the full amount should be paid upon the happening of the contingency, i. e., the necessity thereof to pay the debts of the estate.</p> <p>Manning, J., dissenting; Bkown, J., concurring in the dissenting opinion.</p>

<p>1. Parent and Child — Insane Child — Wrongful Death — Damages — Liability of Parents — Negligence—Evidence.</p> <p>Tlie parents of an insane son are not liable in damages for liis killing a person after be bad been in a hospital for tbe ins'ane and discharged by tbe proper authorities as safe to be at large, and when there was no evidence or circumstance tending to show any subsequent change in tbe son or that tbe parents in any manner could have anticipated tbe homicide. Under such circumstances there is insufficient evidence to take tbe case to tbe jury. Tbe estate of tbe insane son would be liable, if be bad any, under tbe principles announced in Morse v. Horne, at this term.</p> <p>2. Wrongful Death — Damages for Mental Anguish.</p> <p>Damages for mental anguish cannot be awarded in an action for damages for tbe wrongful killing of another.</p>

, at tbe March Term, 1910, of Mece-leNbukq. Oh 17 September, 1907, the feme plaintiff tendered to the defendants at its freight depot in Charlotte, N. O., a- lot of household goods for shipment to Davis, West Virginia, a station on the West Maryland Railroad. She offered to prepay the freight charges, and asked for bill of lading. The defendant declined to receive said goods for shipment, as requested.

<p>Appeal by defendants Finley, Brame et al. from E. B. J ones, J., at tbe Spring Term, 1910, of "Wilkes.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

Motion to vacate a judgment. The action was to set aside a deed from Chas. E. Palmer to his wife, Sue M. Palmer, on the allegation that same was fraudulent as to creditors. Summons was issued in January, 1909, and defendants being non-residents, same was duly served by publication, verified complaint filed 11 January, 1909. At March Term, 1909, defendants failed to appear in person or by attorney, and at July Term, following, judgment was duly obtained.

, at the August Term, 1910, of Wilkes. Petition for dower, transferred to civil issue docket on answer, filed by some of the heirs at law. The court charged the jury, in effect, that if the evidence was believed, the plaintiff was entitled to dower, as claimed, in all the lands set forth and described in the petition. Verdict and judgment for plaintiff, and defendants, other than Lunday and Mattie May Hendren, excepted and appealed.

, at tbe July Term, 1910, of MeokleN-BURGr. Tbe facts are sufficiently stated in tbe opinion of Mr. Justice Brown. Civil action brought by tbe plaintiff to recover damages for an alleged wrong. Tbe Southern Express Co. filed a demurrer to tbe complaint which was sustained. Plaintiff appealed.

<p>Appeal from Webb, J., at tbe March Term, 1910, of Meck-LENBTFRQ-.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

, at the Spring Term, 1910, of ‘Wa-tauga. Civil action to recover for the negligent killing of plaintiff’s intestate. These issues were submitted: 1. Was the death of plaintiff’s intestate caused by the negligence of the defendant? Answer: Yes. 2. What damage is plaintiff entitled to recover by reason of such negligence? Answer: $4,000. The court rendered judgment for plaintiff and defendant appealed. The facts are stated fully in the opinion of Mr. Justice Brown.

, at tbe Spring Term, 1910, of Wa-tauga. Tbis action was brought to try tbe title to certain lands described in tbe complaint and in tbe possession of tbe defendants, Scbull and Qragg. During tbe trial a voluntary nonsuit was taken as to all tbe defendants except tbe two above mentioned.

, at tbe April Term, 1910, of SuRRY. Among other allegations contained in tbe complaint, it is alleged that C. P. Oox, tbe intestate of tbe plaintiffs, purchased from C. V. S. Boyden, as administrator of N. A. Boyden and individually as bis heir-at-law, 337 acres of land in Surry County belonging to N. A. Boyden, for tbe sum of $4,300, of which $3,900 was paid to tbe First National Bank of Mount Airy, N. O., on a bond secured by a duly registered deed of trust on said land,…

<p>Injunction — Shares of Stock — Issuance—Insolvency of Shareholder —Pleadings.</p> <p>. When, in an action to compel a corporation and others to issue certain shares of stock to the plaintiff and to enjoin the transfer of the shares to another on the books of the corporation, the complaint sufficiently alleges plaintiff’s ownership, the insolvency of one of the defendants to whom the certificates were issued, and other facts tending to show that the transfer of the stock would be to plaintiff’s irreparable loss, a restraining order should be granted to the hearing.</p>

F. Long, J., at the February Term, 1910, of Forsyth. Petition to sell land for assets transferred from clerk to the civil docket on issues raised. On the hearing it appeared that in “April, 1907, William Brown died leaving a last will and testament, and on 27 May, 1907, George Y. Fulp was appointed administrator c. t. a. of William Brown, by the clerk of tlie court of Forsyth County, and at once entered upon the administration of the said estate.

, at tbe August Term, 1910. of G-baN-YILLE. Civil action, beard on exceptions to report of referee. Tbe action was instituted by plaintiff, bead and proprietor of a prominent and successful boarding scbool for boys, to restrain defendant company from shutting off tbe current of electricity supplying lights for said school.

, at the August Term, 1910, of PERSON. This is an action brought by plaintiff, the owner of a water mill on a running stream, to recover damages of the defendant railway company for consumption of water taken from plaintiffs pond to supply defendant’s locomotives with water in the necessary operation of defendant’s trains which are operated along and upon defendant’s railroad track and right of way, which crosses said stream above the plaintiff’s dam.

, at the April Term, 1910, of MONTGOMERY. Civil action to recover possession of a tract of land. At tbe conclusion of tbe evidence, bis Honor being of opinion tbat tbe plaintiffs bad failed to make out title, sustained a motion to non-suit and dismissed tbe action. Tbe plaintiffs excepted and appealed. Tbis controversy was before tbis Court at another term and is reported in 143 N. C., 88, and is there referred to for tbe general statement of facts.

<p>1. Appeal and Error — Assignments—Notice—Appellee's Counsel.</p> <p>To meet the requirement of rule 19 (2), the assignments of error should be grouped and numbered and come up as part of the record on appeal, placed either just before or more properly after the signature of the judge. When filed in the Supreme Court only on the day before the ease is called for argument, this does not give appellee’s attorney time to prepare and present his brief upon the points relied upon on appeal.</p> <p>2. Appeal and Error — Assignments of Error — Requisites.</p> <p>In the assignments of error required by rule 19 (2), the court desires that 'bona fide exceptions relating to points determinative of the appeal be clearly and intelligently stated, with so much of the evidence, or of the charge, or other matter or circumstance as shall clearly present the matter to be debated.</p> <p>3. Appeal and Error — Reinstate—Properly Dismissed — Assignments of Error.</p> <p>A motion to reinstate a case on appeal must be denied, when based on the same grounds upon which it was properly dismissed, in this case, the failure of appellant to set out the assignments of error required by rule 19 (2).</p>

<p>ActioN brought in RocxinghaM, and appealed from judgment of Biggs, J., rendered at chambers in Winston, 12 October, 1910.</p> <p>The facts are sufficiently stated in the opinion of Mr! Chief Justice Ciarle.</p>

, at the May Term, 1910, of Henderson. Civil action beard upon demurrer to tbe complaint. His Honor overruled tbe demurrer and defendant appealed. Tbe facts are sufficiently stated in tbe opinion of Mr. Justice Brown.

'B. Allen, J., at tbe October Term, 1909, of WayNE. The facts in evidence are set out in the case on appeal as follows: “There was evidence tending to show that plaintiff was a commercial traveler, and desired to take passage from Wilson to Goldsboro, North Carolina, over the defendant’s road, and he had in his possession a mileage book, good over the defendant’s road, with sufficient mileage therein unused to carry him from Wilson to Goldsboro.

, from CraveN. The defendant was indicted under sec. 3572 of the Bevisal of 1905, which reads as follows: “If any person appointed or elected a commissioner or director to discharge any trust wherein the State or any county, city or town may be in any manner interested shall become an undertaker, or make any contract for his own benefit, under such authority, or be in any manner concerned or interested in making such contract, or in the profits thereof, either privately or…

, at tbe Spring Term, 1910, of CAMDEN. Tbe facts are stated in tbe opinion of tbe court. Tbe defendant was indicted in tbe court below for breaking and entering tbe store bouse of W. S. Berry, witb tbe unlawful and felonious intent of stealing, taking and carrying away tbe goods and chattels of tbe said Berry. Tbe evidence tended to show tbat there were several persons in tbe store on Saturday night, the 5th day of March, 1910.

, at March Special Term, 1910, of OeAVEN. This is an indictment under sec. 3572 of Revisal as follows: “If any person, appointed or elected a commissioner or director to discharge any trust wherein the State or any county, city or town may be in any manner interested, shall become an undertaker, or make any contract for his own benefit, under such authority, or be in any manner concerned or interested in making such contract, or in the profits thereof, either privately or…

<p>Appeal from Peebles, J., at August Term, 1910, of FkaNK-LIN.</p> <p>Tbe facts are stated in tbe opinion.</p>

Appeal by defendant from Coolce, J., at the April Term, 1910, of New HaNoveb, From a verdict of guilty and the judgment pronounced thereon the defendant appealed to this Court.

Appeal by defendant from O. H. Allen, J., at tbe September Term, 1909, of New HaNoveR. The facts are sufficiently stated in the opinion. Indictment for murder of one Shields. The prisoner was convicted of murder in first degree, and from the judgment of death appeals to the Supreme Court.

<p>Appeal by defendants from Ooolce, J., at the July Term, 1910, of "Waxe.</p> <p>The facts are sufficiently stated .in the opinion.</p>

<p>1. Corporations — Evidence—Indictment—Tenants—Removing Tenements, Etc.</p> <p>The intent being- an ingredient o£ the offense, a corporation is indictable for the acts of its officers and agents under Revisal, 3GS6, when the corporation is a tenant, etc., for injuring or damaging tenement houses, etc.; and the corporate existence may be shown, though not charged in the bill.</p> <p>2. Indictments — Words and Phrases — Tenants—Removing Tenements — Interpretation of Statutes.</p> <p>Upon a trial for violating Revisal, 3686, the indictment reading, that defendant corporation, with the three other defendants “with force and arms did wilfully and unlawfully demolish, pull down and remove from said lands . . . the above-mentioned walled-in enclosure, stables, feed room or barn.” etc. Held, (1) that •nothing is charged in the bill to come within the meaning of a “tenement” or “outhouse,” the former word referring to a dwelling or place of habitation, and the latter being in some respect a parcel of such dwelling and within the ourtillage; (2) the words of the statute do not include “stables,” a cams omissus for the Legislature and not for the courts; (3) “a walled-in enclosure” falls within the meaning of “a wall or other enclosure.”</p> <p>3. Indictments — Misdemeanors—Accessories—Principals.</p> <p>A charge in an indictment against a corporation and other defendants, for violating the provisions of Revisal, 3686, that all the defendants, except the corporation, were present assisting in doing the act, makes those present principals in the second degree, not accessories; if they were accessories, the result in this case would be the same, for in misdemeanors all aiders, abettors and accessories, whether before or after the fact, are principals.</p> <p>4. Indictment — Quash—Informalities, Etc.</p> <p>An indictment under Revisal, 3686, may not be quashed or judgment arrested “by reason of any informality or refinement." Revisal, 3254.</p> <p>5. Indictments — Sufficiency — Tenants — Removing Tenements — “Wilfully” — “Belief.”</p> <p>In order to convict a tenant under the provisions of Revisal, 3683, for wilfully and unlawfully'demolishing, etc., any tenement house, etc., it is necessary to prove that the act was done “wil-fully and unlawfully”; and it was error to refuse a prayer for instruction, that the defendants would not be guilty of “wilfully” removing, etc., if the jury shall find from the evidence that the defendants did reasonably and Teona fide believe they had the right to do so.</p>

<p>1. Criminal Actions — Prosecutor—Costs—Power of Court — Interpretation of Statutes.</p> <p>Tlie power conferred upon tbe courts to determine tbe question of responsibility and to tax costs against tbe one adjudged to be tbe prosecutor, extends to “all criminal actions where tbe defendant is acquitted, a nolle pros, entered, judgment arrested, or if the defendant shall be discharged from arrest for tbe want of probable cause,” and exists at any stage of tbe criminal proceedings, before or after the finding of the bill or defendant acquitted..</p> <p>2. Same — Trespass—Title Arbitration.</p> <p>When, in a trial under indictment for forcible trespass, tbe question depended upon a civil issue as to title, which by consent of tbe parties was referred to arbitration by tbe trial judge, and one of tbe claimants is spoken of in the order of arbitration as prosecutor, the order providing tbat if tbe question of title be found against-him, be shall pay tbe costs as on nolle pros, by tbe solicitor, which resulted in a judgment taxing tbe costs against him. Held, there being nothing restrictive in tbe terms of tbe judgment, it was not error in tbe trial court to find tbe appellant, upon further investigation, had advised the prosecution, actively participated therein, and enter judgment making him a prosecutor of record and also taxing him with the costs, and this disposition of the case is not precluded by the prior judgment referring the question of title to arbitration.</p>

J. Adams, J., at tbe Fall Term, 1910, of Anson. Indictment for murder. Tbe defendant was tried for murder in second degree and convicted of manslaughter. From the judgment of the court defendant appeals.

<p>Appeal by defendant from Lyon, J., at tbe March Term, 1910, of UNION.</p> <p>Indictment for burning a barn tried.</p>

<p>Appeal by defendant from G. W. Ward, J., at tbe Fall Term, 1910, of Davie.</p>

<p>1. Judgment Suspended — Recognizance — Forfeiture — Evidence — Procedure.</p> <p>Judgment having been suspended against the defendant, he being required to enter into bond conditioned that he appear at each term of court for two years and show he has kept the peace toward C. and W. and all other good citizens, and to further show that he had refrained from libel or slander, etc. Held, (1) conviction of publishing, etc., indecent literature is not a violation of the bond; (2) conviction of an affray is a violation of its terms, and it was error in the trial court to hold it had no power to declare the bond forfeited.</p> <p>2. Same — Record—Questions for Jury.</p> <p>When the forfeiture of a recognizance is moved for, based upon matters appearing of record, the judge decides without the intervention of a jury; but upon issues of fact the defendant has a right to a jury trial thereof.</p> <p>3. Same.</p> <p>While Revisal, sec. 3216, provides that when evidence of conviction shall be produced in the court in which the recognizance is tried, it shall be the duty of the court to order the recognizance to be prosecuted, etc., yet though the proceedings are of a civil nature, they should be in the cause in which the recognizance is filed. When the facts are denied, ah issue for the jury thereon is raised, and when conviction of an offense constituting a breach of the bond is alleged and denjed, the proof to be submitted is the conviction in a court of competent jurisdiction; and the judgment should be entered in the court in which the recognizance was filed.</p>

<p>Appeal by defendants from W. J. Adams, J., at tbe June Term, 1910, of Guileobd.</p> <p>Tbe facts are sufficiently stated in tbe opinion of the Court.</p>

Allen, J., at the August Term, 1910, of UNION. Indictment charging Charles B. Plyler, George Mayhew and John McManus with the murder of Carter Parks. The defendant McManus was acquitted. The court below has now under advisement a motion to set aside the verdict as to defendant Mayhew as being against the weight of the evidence. The defendant Plyler was convicted and sentenced to death. From the judgment of the court he appeals.

<p>1. Murder — Deadly Weapon — Malice—Burden of Proof.</p> <p>The admission that a homicide was committed bjr the prisoner with a pistol, a deadly weapon, implies malice and raises a presumption of murder in the second degree, casting upon the prisoner tlje burden throughout the trial of showing all matters in mitigation to reduce the crime to manslaughter or to prove self-defense.</p> <p>2. Murder — Self-defense—Repellant Force — Burden of Proof.</p> <p>For self-defense the prisoner must prove that the force he used was exerted in good faith to prevent the threatened injury, and was not disproportionate to the force it was intended to repel, the question of execessive force and the real or apparent necessity for its use upon the facts presented being for the jury to determine.</p> <p>3. Same — Proving Attack — Cessation—Instructions.</p> <p>When evidence is conflicting upon the plea of self-defense, it is correct for the trial judge to charge, in effect, that if the jury found that after the accused brought on the difficulty resulting in the' death of the deceased he withdrew from the encounter or gave deceased reasonable grounds to believe that he had done so, and did not desire to continue the conflict, but the deceased pursued the accused with an.open knife and continued to strike him with it, the accused could defend himself as if he had not originally provoked the fight, if the jury found he had provoked it; but that such withdrawal, if so found by them, must have been made in good faith and not as a cover of the deceased to draw the pistol with which the deadly wound was (as in this case, admittedly) inflicted.</p> <p>4. Evidence — instructions—Contentions—Objections and Exceptions.</p> <p>There was no error in this case made by the trial judge in fairly stating to the jury the various contentions of fact by the parties. 1-Ie clearly stated they must not consider that he was intimating how the facts should be found by them, the finding of the facts being solely for them; and an omission to recapitulate the evidence favorable to a party is not assignable for error, if not pointed out at the time.</p> <p>5. Murder — Malice — Verdict — Objections and Exceptions, Immaterial.</p> <p>Exceptions relating only to questions of malice, upon a trial for murder, become immaterial when the prisoner is convicted of murder in the second degree.</p> <p>6. Murder — Self-defense—Malice—Unnecessary Force — Evidence.</p> <p>When there is evidence tending to show that the prisoner several times fired upon the deceased, which resulted in death, a prayer for special instruction, based upon the theory that if the first shot fired was the fatal one, and in self-defense, the other shots had no bearing upon the guilt or innocence of the prisoner on the question of murder or manslaughter, is properly refused, the fact that the other shots were fired being competent as tending to show they were through malice and rage, in contradiction of the idea of self-defense.</p> <p>7. Murder — Repellant Force — Defense of Another — Son—Evidence.</p> <p>A son entering a fight to protect his father can justify his act in hilling the father’s assailant for his protection only to the same extent and under the samé circumstances that would justify his father’s acts in self-defense.</p>

<p>Appeal from Webb, J., at tbe March. Term, 1910, of UeN-DERSON.</p> <p>The facts are sufficiently stated in the opinion of Mr. Justice Wother.</p>

<p>1. Supreme Court Reports — Public Printing — Commission of Labor and Printing.</p> <p>The Supreme Court Reports are a part of the public printing, and the Commissioner of Labor and Printing is charged with the same duty of furnishing paper and stationery therefor, and in the examination and superintendence thereof, as is required for the other public printing. Revisal, sec. 5095.</p> <p>2. Supreme Court Reports — Printing—Contracts.</p> <p>By Revisal, sec. 5093, the duty of contracting for the printing of the Supreme Court Reports is confided to the Supreme Court, and with reference thereto this is an exception to section 5092 requiring that such contracts be made by the committee therein designated.</p> <p>3. Same — Kind and Style.</p> <p>Upon the Supreme Court devolves the duty only of selecting the printer and directing the style and general execution of the work, the price of which is restricted to that allowed and fixed by the committee. Revisal, secs. 5093, 5095.</p> <p>4. Same — Size of Volumes.</p> <p>Until otherwise directed by the Court, the Reports will be leaded, and in all other respects conform as to paper, binding, type and general make-up with Volume 150 of the Reports, and average, as nearly as may be, 800 pages each.</p>