Volume 154 — North Carolina Reports

Appeal by the Cone Export and Commission Company, inter-pleaders, claiming the fund in hands of the receiver.

<p>Appeal and Error — Courts—Expression of Opinion — Interpretation of Statutes.</p> <p>In this case the judge in charging the jury said, “I am not sure, and I frankly confess that I am not sure, that I understand fully the claim upon which the plaintiff bases the eleven thousand and some odd dollars”: Held,, this was not an expression of opinion prohibited by Revisal, 535, it not appearing that the expressions used were pertinent to the issue, or were prejudicial' to appellant, or corroborative of an alleged error based upon his admitted ignorance, or failure to comprehend plaintiff’s claim, upon which the law was incorrectly charged.</p> <p>Walkeb, J., dissenting.</p>

, at the May Term, 1910, of HeN-DERSON. Tbis action was brought under section 1589, Revisal, to remove a cloud from the title of plaintiff, asserted by defendants.

, at February Term, 1910, of Union. Tbis'case was before this Court at Fall Term, 1909, and will be found reported in 151 N. 0., 231, where, in the opinion of the Court, the nature of the action and much of the evidence are stated.

<p>Navigable Streams — Obstruction—Damages—Punitive Damages — Evidence.</p> <p>In an action wherein actual damages were claimed, with punitive damages, for damming a navigable stream, made a misdemeanor by Revisal, 3559, there was evidence sufficient tending to show, and under correct instructions from the court the jury found, that the stream in question was navigable: Held, to recover punitive damages it was insufficient to show merely that the stream was obstructed to plaintiff’s damage, it being necessary to prove, in such cases, malice, fraud, wanton or willful disregard of the plaintiff’s rights, or other circumstances of recklessness or aggravation.</p>

<p>1. Legislative Powers — Constitutional Law — Cities and Towns— Paving Streets — Assessment.</p> <p>Tbe Legislature lias constitutional authority to authorize a city to improve its streets by creating each street, or a portion thereof, a taxing district, and requiring a prescribed portion of the cost of the paving of said street to be assessed upon the abutting property on each side of the street, according to the frontage of each lot.</p> <p>2. Cities and Towns — Paving Streets — Prerequisites—Jurisdictional ■ —Order—Appeal—Injunction—Equity.</p> <p>When, under a statutory authority given a city to pave its streets, it is among other things required that a petition be filed by the owners of a majority of the front feet abutting thereon and notice be given, etc., prior to an order made by the aider-men, and it appearing that the order had been made upon petition after giving the notice required by the statute, and in other respects in pursuance of the act, and no objection entered or appeal from the order as provided for: Hold, after the expiration of five years an order restraining sale of plaintiff's property to pay for the paving will not be granted to two of the abutting owners on the street, upon the ground that a majority, as provided, of the abutting owners had not in fact signed the petition; (1) the assessment and levy, as made, had the effect of a judgment and lien; (2) though the petition was a prerequisite, it was not jurisdictional, and the order, in effect, was a finding that the petition was true, and, not appealed from, was conclusive; (3) the statutory notice made the plaintiffs parties to the proceedings; (4) the granting of a restraining order after five years would be inequitable to the other taxpayers and property-owners of the town.</p>

<p>Appeal by defendant from Justice, J., at March Term, 1910, of BUNCOMBE.</p> <p>Tbe facts are sufficiently stated in the opinion of Mr. Justice Walker.</p>

<p>Master and Servant — Duty to Instruct — Safe Place to Work — Negligence — Accident.</p> <p>In an action for damages for injury to plaintiff’s foot caused by tbe falling of a cross-tie upon it while be was at work with two other hands on. a car leveling ties, it appeared that the ties had been placed on the ear at either end, leaving a space in the middle of the car, where plaintiff was at work, the others working on either side of one of the piles. The hands were left to do the work in their own way, without any special instruction as to the manner of doing it. While they were moving the ties one or two of them fell from a pile, causing the injury: Held, (1) the work was simple, requiring no more than ordinary skill and experience, and no instruction as to it was required; (2) the* doctrine that it is the master’s duty to provide the servant a safe place to work is inapplicable to the facts; (3) the injury was the result of an accident, and the plaintiff cannot recover.</p>

, at May Term, 1910, of Catawba. Tbis action was brought to recover tbe sum of $6,000, alleged to be due by tbe defendant under a contract witb tbe plaintiff to purchase from him a tract of land in Kowan County. Plaintiff alleged that be entered into a written contract witb tbe defendant whereby be agreed to sell and convey to him bis farm in tbe said county for’ $6,000; that be tendered a deed for tbe land and demanded tbe payment of tbe purchase price.

, at August Term, 1910, of Guileokd. The plaintiff brought this action to recover damages for a breach of a covenant of warranty. T. E. Balsley, as executor of Jacob B. Balsley, on 26 February, 1898, in consideration of $3,600, executed a deed to the plaintiffs for a lot in the city of Greensboro, which is described in the complaint.

<p>1. Master and Servant — Safe Appliances — Requirements.</p> <p>Tbe master is not required to adopt every new appliance for tbe safety of tbe servant as soon as it is known, but be is answerable in damages to tbe servant for an injury received through bis failure to furnish proper appliances that are in general use to do dangerous work.</p> <p>2. Same — Evidence Sufficient.</p> <p>Tbe servant was employed to load rails on a car, and was injured while turning one of them after it bad been placed on the car. There was evidence tending to show tbat three railroad companies furnished a certain kind of tongs for this purpose, and had one been furnished the plaintiff the injury would not have occurred: Held, evidence sufficient to go to the jury as to the master’s liability in failing to furnish a proper appliance to the servant.</p>

Civil action pending in tbe Superior Court of McDowell County, and beard at chambers on 28 October, 1910, before bis Honor, Webb, J., upon motion for a restraining order until tbe final bearing to prevent tbe defendants from closing up and obstructing an alleyway leading into plaintiff’s property, whereby be has ingress and egress to tbe public street of tbe town of Marion.

, at October Term, 1910, of BuNcombe. This is a petition in the cause (a proceeding commenced for the purpose of winding np the affairs of the Elk Mountain Company, an insolvent corporation) filed by Mary A. Stewart to have certain certificates s.et out in the record declared a debt against the corporation, to the end that she may share pro rata, with creditors in its assets. His Honor sustained a demurrer to the petition, and defendant appealed.

, at April Term, 1910, of TkaNsyl-vania. This is an ejectment to try the title to the tract of land described in the complaint and for its possession, and damages for the trespass thereon.

, at Spring Term, 1910, of YaNcey. Tbis was an action brought to try the title to certain tracts of land described in the complaint, for possession thereof and for the annual rental value. The defendant disclaimed any title to or interest in tract 2 described in the complaint. The questions involved are presented upon agreed facts, as follows: “It is agreed by both plaintiff and defendants that they hold under a common source, to wit, the National Graphite Company.

J. Adams, J., at August Term, 1910,- of DaVIDSON. The plaintiff, in the fourth allegation of his amended complaint, thus details the manner in which he was injured and for which he sues to recover damages: “That on 28 November, 1901, and for some time prior thereto, the plaintiff was employed by the Southern Railway Company as a servant upon defendant’s yards in the town of Spencer, for a valuable consideration, and while engaged in such work as a safety-appliance man and…

<p>1. Insurance Orders — Restrictive Rights — Tribunals—Courts.</p> <p>A member of an insurance order is not bound by any agreement or stipulation restricting bis rights to recover sick benefits to tbe determination of tbe tribunals of tbe order, and may enforce them in tbe courts without first resorting to tbe tribunals thereof.</p> <p>2. Insurance Orders — Sick Benefits — Personal Rights — Restrictive Liability — Beneficiaries—Executors and Administrators.</p> <p>Tbe member of an insurance order becomes entitled, as a matter of right, to tbe sick benefits accruing to him under bis policy of insurance, and upon his death without having received payment thereof tbe cause of action against tbe order survives and is enforcible under Revisal, see. 415; and when the constitution of tbe order provides tbat the “benefits are rights personal to tbe member, bis family and dependent relatives, and are not payable to the legal representatives of a member’s estate,’ tbe personal representative of tbe deceased member may maintain bis action against tbe order to recover tbe benefits, when there are none who belong to tbe named classes to take; and the amount recovered will go into tbe intestate’s estate for distribution or disbursement as required by tbe statute.</p>

, at February Term, 1910, of BuNCOMBE. Motion to retax bill of costs adjudged against the defendant.

<p>Appeal by plaintiff from Justice, J., at March Term, 1910, Of BlTNCOMBE.</p> <p>The facts are sufficiently stated in the opinion of Mr. Chief Justice Clark.</p>

<p>1. Reference Agreed — Power of Court — Procedure.</p> <p>Tbe court cannot set aside the method of trial agreed upon by the parties to a consent reference.</p> <p>2. Reference Compulsory — Exceptions—Power of Court.</p> <p>When either party to a compulsory reference reserves his right to a jury trial, the judge can set the reference aside and submit the case to the jury upon proper issues.</p> <p>3. Same — Issues.</p> <p>The judge is not precluded by the issues formulated by the party excepting to a reference; he should submit the issues properly raised by the pleadings.</p> <p>4. Same — Objections and Exceptions.</p> <p>A party who does not except to a reference cannot object that the issues were not restricted to those formulated by the other party. He can except only that the issues actually submitted were not such as are determinative of the controversy raised by the pleadings, and did not permit him to present every phase of the controversy. •</p> <p>5. Contracts^ Written — Parol Evidence — Consideration—Statute of Frauds — Debt of Another — Interests in Lánds — Contemporaneous Agreement.</p> <p>Plaintiff sold J. certain lands to be paid for at a‘certain rate per thousand feet of lumber -to be cut thereon. The latter sold to defendant, who made a certain cash payment to him in advance, the defendant having no notice that plaintiff owned the land and had reserved a lien on the lumber to secure the purchase price from J. By .contracts in writing between plaintiff, defendant, and J., the plaintiff agreed that the payment of the purchase price be made by the defendant from profits made in cutting the lumber at a lower rate per thousand than originally agreed upon with J., which should be paid to plaintiff on the purchase price in behalf of J.: Held, evidence was competent to show an oral contract by which defendant was obligated to pay the purchase price for J.; (1) there was a sufficient consideration to support it in the modification of the lien and price per thousand feet of the plaintiff’s contract with J., so that defendant could cut the lumber and continue his contract; (2) it was not a promise to answer for the debt of another, Revisal, 974; (3) the agreement was to assume to pay a certain sum of money; it was an executed and not an executory contract to convey an interest in lands required by Revisal, 976, to be written; and, if it had been, the purchaser could not object; (4) it does not alter or contradict the written agreement, but adds a collateral stipulation, and does not appear as having been contemporaneously made.</p> <p>MaNking, J., dissenting.</p>

<p>1. Telegraphs — Office Hours — Waiver.</p> <p>A telegraph company waives its rules as to reasonable office hours by accepting a message for transmission after its office is closed for the night; and when it appears in a suit for damages for delayed delivery of a telegram that it Avas accepted for delivery “if there was nothing the matter at the other end of the line,” and was sent and received by its agent at the point of destination, the provision as to reasonable office hours is waived there, also.</p> <p>2. Same — Delayed Delivery — Service Message — Notice to Sender— Negligence.</p> <p>When a telegram is received after office hours by a telegraph company upon condition that it will be delivered at destination “if there was nothing the matter at the other end of the line,” and the defense of the company, in an action for damages for delayed delivery, is that delivery could not have been promptly made because it was received at destination after office hours and there was no one by whom to send the message to addressee, the burden is upon the defendant and it is its duty to show that it had notified the sender of the fact; and evidence is insufficient which merely tends to show that a service message was sent bach, but not delivered to the sender.</p> <p>3. Telegraphs — Negligence—Physician—Mental Anguish — Notice— Damages.</p> <p>A telegram sent to a physician reading, ^'Come at once. My wife very sick,” is sufficient to notify a telegraph company that mental anguish will result to the husband from a negligent delay in its delivery; and the husband may recover damages for the delay, caused by the defendant’s negligence, in not sooner having the doctor in attendance upon his sick wife.</p> <p>Walker, J., concurring; Browit and Manning, JJ., dissenting.</p>

<p>Appeal by defendant from George W. Ward, J., at May Special Term, 1910, of McDowell.</p> <p>Tbe facts are sufficiently stated in tbe opinion of Chief Justice Ciarle.</p>

, at June Term, 1910, of Bueke. Proceedings' instituted before the clerk to partition a small piece of land, transferred to the civil-issue docket. The following plat will indicate and explain the question at issue.

B. Jones, J., at January Term, 1910, of MeckleNbueg. Civil action to recover damages for injury caused by alleged negligence on tbe part of defendants.

, at February Term, 1910, of Euthee-eobd. Civil action to recover damages for negligently allowing fire to get out in a neighbor’s woods and thereby causing damage, etc. There was evidence tending to show that defendant had a hired man, named Major Melton, and, on 22 March, 1907, he directed Melton to cut and pile some cornstalks in a 4-acre field on defendant’s place, and after giving these directions went off with a load of lumber; that Melton went at the work he was given…

<p>1. Contracts — Independent Contractor — Requisites—Respondeat Superior.</p> <p>One of the vital elements in the relation of independent contractor is that the person for whom the work is contemplated to be done is interested only in the ultimate result of the work; and when it appears that the owner, under the contract relied on to establish this relationship and avoid responsibility for the contractor’s negligent acts, furnished important portions of the material for constructing the appliances and the facilities for carrying on the work; that all purchases and prices of materials and supplies were subject to the approval of the architect or superintendent employed and paid by the owners, and that they had the right to select, control, and discharge the labor employed and fix the price of their pay, the facts are insufficient to establish the relationship of independent contractor, and the doctrine of respondeat superior applies.</p> <p>2. Master and Servant — Vice Principals — Tests.</p> <p>The right of an employee to hire and discharge other servants is not the sole test of this relationship to the master as vice principal, for the principle also obtains when one in charge of other servants is so empowered that the others have just reason for believing that neglect or disobedience of his orders will be followed by their dismissal.</p> <p>3. Contracts — Independent Contractor — Evidence.</p> <p>In this action, it appearing that there was sufficient evidence for a finding by the jury for plaintiff upon issues as to whether the servant, whose negligent orders caused the injury, was a vice principal, a motion for judgment as of nonsuit upon the evidence upon that -ground was properly denied.</p> <p>4. Contracts — Independent Contractor — Negligence—Evidence.</p> <p>The servant alleging damages in his action against the master as proximately caused by a negligent order of the latter’s vice principal, given while erecting a three-story building, there was evidence tending to show: that the servants were engaged in hoisting heavy timbers, and that the usual way to hoist one of them was to place it beneath a “crab” and hoist on a perpendicular ; that on the occasion of the injury the rope was fastened to a timber some distance off, giving it a slant and throwing the line beneath and against a rafter which had just before been raised and which rested on tlie beam where tlie timbers were to be placed; that in the performance of his duties the plaintiff was standing near the end of this timber preparing to throw the tag rope to a fellow-servant to draw the rafter to its proper place, when the vice principal, without notice or warning, ordered the men at the “crab” to operate it, causing a “crab” rope beneath the timber near which the plaintiff was standing to knock it or pull it off the plate, from which it fell, to the plaintiff’s injury; that the plaintiff was not in a position to see or know what was going on, and had no reason to believe the hoist would be ordered at that unusual time: Held, sufficient upon the Question of negligence.</p> <p>5. Contracts — Independent Contractor — Negligence—Unexpected Results.</p> <p>IVhen in the hoisting of heavy timbers in the erection of a building a negligent order of a vice principal causes an injury to a servant engaged in the work, without fault on the part of the servant, and it appears that the vice principal knew or should have known that the order would be likely to inoduce an injury to some of the employees, though the vice principal was not in position to see the servant at the time, the master is not excused from liability for the injury because the result was not exactly what might have been expected.</p>

<p>1. Cities and Towns — Streets—Roads—Corporate Limits — Control.</p> <p>When, a public highway enters an incorporated town, or such town builds up on one already existent, it usually follows that the highway, or so much thereof as is within the corporate limits, comes under the regulation and control of the corporate authorities as a part of the public streets.</p> <p>2. Cities and Towns — Streets—Roads—Discontinuance—Legislative Powers — Compensation.</p> <p>In the absence of constitutional restraint, the authorities of an incorporated town have power to vacate or discontinue a street or public way, but when such street has been once established they can do so only by legislative sanction expressly given or necessarily implied from powers which are so conferred, and then compensation must be made to abutting owners whose property is injured.</p> <p>3. Cities and Towns — Streets—Roads—Obstructions—Changes— Abutting Owner — Damages.</p> <p>When a change is made in its streets, or the street is discontinued by the authorities of an incorporated town by legislative sanction, a landowner, as a rule, is restricted to a claim for the damages arising therefrom to him.</p> <p>4. Cities and Towns — Streets—Roads—Changes—Legislative Authority — Taxpayer—Abutting Owner — Right of Action.</p> <p>When a change is made in a street by the authorities of an incorporated town, with or without legislative sanction, the change being recognized as valid, and acquiesced in by the general public, their action cannot be questioned in a civil suit of a private citizen by reason of his being a general taxpayer of the town; but, if maintainable at all, it can only be done by a landowner whose property is affected by the change, and who will suffer some peculiar and special injury by reason of it.</p> <p>5. Cities and Towns — Streets—Roads—Dedication—Conduct—Ratification by Public.</p> <p>The incorporated town of M. altered the course of a portion of an old State road within its limits and substituted a broad, commodious street. At that time O. owned land on both sides of the old way, and was the only one whose property was affected. The property of O. abutted on the new street, and he made no objection, but by bis fencing and other acts openly acquiesced in tbe change, inclosing the entire property, included the old way and used it as his own. A part of this property was sold and conveyed to plaintiff, who brings his action against the defendant, who bought the other part, to compel him to remove a house he had erected on the old road, and to compel the town to keep the old road open: Held, (1) the conduct of C. amounted to a dedication, and precludes plaintiff, who holds his title, and who purchased with knowledge of all the facts, from maintaining his action; (2) as to whether the public would be estopped from questioning the substitution of the new way for the old by a period of acquiescence, quaere.</p> <p>6. Cities and Towns — Streets—Roads—Deeds and Conveyances — Recitals — Boundaries—Rededication—Evidence.</p> <p>The plaintiff in his action seeks to compel defendant to remove as an obstruction a house he had erected in an old public road, within the corporate limits of the town, and the town to keep this road open. At this place the proper authorities of the town had changed the road to a new location, and the acts of plaintiff’s grantor, binding upon plaintiff, amounted to a dedication of the new road in substitution of the old one. This new road, at the time, affected only the land of plaintiff’s grantor, who was also the grantor to the defendant of the land whereon the obstruction complained of was situated: Held, the fact that plaintiff’s deed calls for the old road as a boundary was merely a matter of description, being copied from some old deeds made when conditions were different and did not amount to a rededication.</p> <p>7. Cities and Towns — Streets—Roads — Dedication — Ratification— Limitation of Actions — Evidence.</p> <p>The principle that an abandonment of a public way cannot be presumed, if at all, from nonuse, for any period short of twenty years, has no application where there has been a positive act of dedication and abandonment on the part of the owner, accepted and acquiesced in by the public.</p>

Certioeaei to review proceedings from Guilford in habeas corpus, beard before Associate Justice Walicer, at chambers, in Ealeigb, on December 12, 1910.

<p>Appeal by defendants from Pell, J., at the April Term, 1910, of Mitchell.</p> <p>On motion of defendants to recall writ of certiorari and to dismiss the appeal.</p>

, at September Term, 1910, of Mecic-LENBUBG. Tbe indictment of defendant contains three counts, to wit: First Gourd. That tbe defendant solicited orders for intoxicating liquors witbin tbe borders of Mecklenburg County, contrary to law. Second Count. That tbe defendant sold and retailed spirituous and malt liquors to some i^erson to tbe jurors unknown. Third Gount.

Adams, J., at November Term, 1910, of BUNCOMBE. The defendant was indicted for the murder of Albert Murphy. Before the jury was impaneled the solicitor for the State stated that he would not ask for murder in the first degree, but only for a verdict of murder in the second degree or manslaughter. The jury rendered a verdict of manslaughter. From the judgment of the court the defendant appealed.

<p>Appeal by defendant from J. 8. Adams, J., at Spring Term, 1910, of JacKsoN.</p> <p>Tbe facts are sufficiently stated in tbe opinion of Mr. Justice Walker.</p>

<p>Appeal by plaintiff from Ward, J., at Spring Term, 1910, of Hertford.</p> <p>Tbe facts are sufficiently stated in tbe opinion of Mr. Justice Walker.</p>

, at September Term, 1910, of Oam-DEN. This action, was brought by the plaintiff, as trustee in bankruptcy of J. W. Taylor, to recover of the defendant the sum of $901, alleged to have been paid to the defendant, as a preferred creditor, by C. H. Spencer, assignee, under a general assignment executed by Taylor for tbe benefit of,Ms creditors.

<p>Appeal by plaintiff from Ward, J., at Jiily Special Term, 1910, of Hyde.</p>

, at May Term, 1910, of Beaufobt. Civil action for damages. These issues were submitted: 1. Was the plaintiff injured hy the negligence of the defendant, as alleged? Answer: Yes. 2. Did plaintiff, by her own negligence and acts, contribute to her injury? Answer: No. 3. Did the release of plaintiff for a valuable consideration to E. W. Ayers from liability also relieve the defendant from liability? Answer: No. 4. What damage, if any, is the plaintiff entitled to recover?

<p>Appeal by defendants from J. 8. Adams, J., at Fall Term, 1910, of "WASHINGTON.</p> <p>The facts are sufficiently stated in the opinion by Mr. Justice Allen.</p>

<p>1. Trespass — Possession—Superior Title.</p> <p>Though, trespass is a personal and possessory action, the law adjudges the possession to be in him who has the superior title, when neither party has the actual possession at the time of the alleged unlawful entry.</p> <p>2. Trespass — Calls—Description—Punctuation—Established Lines— Interpretation of Deeds.</p> <p>In an action of trespass on lands, the question of defendant’s unlawful entry depended, under the construction of the calls in a grant under which he claims title, upon the question whether the second call was controlled by a call to the “Morris line” according to the following description: “Beginning (at a pine on W. Creek or Gum Swamp at L.’s corner (this point being admitted), running thence south 41% degrees west 12% chains; thence south 20% degrees west 18% chains, along Morris’s line south 16% chains,” etc. The plaintiff contends that the second call should be run with the Morris line, making a difference of 92 degrees in the two courses: Held, (1) the first call not mentioning the “Morris line,” makes it probable, at least, that it was not to reach that line; (2) it was not intended that the second call should be “along the Morris line,” as the words quoted are separated by a comma from those of the second call, and qualify the third call for course and distance, there also being evidence that the description fits a location of the “Morris line” under the third call; therefore, (3) the rule that, under certain conditions, a call for an established line of an adjoining tract of land will control a conflicting call for course and distante has no application.</p>

<p>Appeal from. J. 8. Adams, J., at Fall Term, 1910, of Dake.</p> <p>Civil action to recover damages for injury caused by alleged negligence on the part of defendant company.</p> <p>The jury rendered the following verdict:</p> <p>1. Was plaintiff injured by the negligence of defendant, as alleged ? Answer: Yes.</p> <p>2. Did plaintiff contribute to bis own injury by bis negligence, as alleged in tbe answer? Answer: No.</p> <p>3. Was tbe defendant injured by tbe negligence of a fellow-servant, as alleged in tbe answer? Answer: ....</p> <p>4. Wbat damage, if any, is plaintiff entitled to recover? Answer:</p> <p>Damages up to tbe present time.$1,000</p> <p>10 years, 200 days to tbe year, $1.00 per day... 2,000</p> <p>5 years, 200 days to tbe yeai’, .75 per day... 750</p> <p>5 years, 200 days to tbe year, .50 per day... 500</p> <p>$4,250</p> <p>Judgment on tbe verdict for plaintiff, and defendant excepted and appealed.</p>

<p>Appeal by plaintiff from Justice, J., at November Term, 1910, of NORTHAMPTON.</p> <p>The facts are sufficiently stated in t-be opinion of the Court by Mr. Qhief Justice Glarlc.</p>

<p>Appeal by defendant from Ferguson, J., at Fall Term, 1910, of HERTFORD.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Allen.</p>

S. Adams, J., at November Term, 1910, of TYRRELL. Civil action to recover damages for wrongfully cutting timber on lands of plaintiff.

Appeal by defendant from Ferguson, .J., at August Term, 1910, Of NORTHAMPTON. The plaintiff, an employee, was injured on a platform of tho defendant, on 22 April, 1909, while at his work. He alleges in his complaint: “5.

<p>1. Associations — Churches—Powers—Agreement—Custom.</p> <p>A voluntary association of churches has no existence or powers except those contained in its formal articles of agreement or established by custom acquiesced in by the parties to it; and when, as here, it consists of an annual meeting- of delegates from its constituent members, the churches, to further certain common interests, the organization is dissolved upon adjournment into its individual elements until reassembled pursuant to the common agreement.</p> <p>2. Same — School Trustees — Appointment—Regular and Called Meetings.</p> <p>A voluntary association of churches chartered and established a school, naming, as authorized, trustees for the school. The constitution of the association provided that it “may he altered or amended at any regular meeting . . . by a two-thirds vote of the members present.” At a regular annual meeting the church of “Blessed Hope” was designated as the place for the next annual meeting. Subsequently, the officers of the association met and decided to “withdraw fellowship” from "Blessed Hope,” rescinded the resolution to meet there and designated a different church in another locality for that purpose, where a majority of the churches were represented by delegates. Delegates from the majority and minority number of the churches met at each of the respective places on the day appointed, and,at each meeting trustees for the'school were elected: Held, (1) that the meeting at “Blessed Hope” was the legal one, and the, trustees appointed by a majority vote of the delegates there present were those legally entitled to administer the affairs of the school, iáim.mons v. Allison, Its X. 0., 774, cited and distinguished.</p> <p>3. Associations — Churches—Powers—Trustees—Appointment—Parties — Court’s Discretion.</p> <p>At a meeting regularly held by a voluntary association of churches, trustees were appointed for a school chartered by the association. At the same time, but at a different place, there, was a meeting called by the officers of the association, when and where other and conflicting trustees were appointed. The question at issue being which set of trustees were the ones legally qualified to act, it was Held, (1) that the trustees appointed at these meetings were the real parties in interest, and it was not error for the trial judge in his discretion to order them to be made parties, so that the matter might bo decided upon its merits (Iievisal, 507) ; (2) no appeal lies from the refusal of a motion to dismiss, and an entry of appeal not perfected is treated as an exception on appeal from the final judgment.</p> <p>4. Same — Exceptions—Appeal and Error — Procedure.</p> <p>The amendment making additional parties does not affect the decision in this case, as thereby the subject of the controversy was not changed, the additional parties being the beneficiaries for whom this action was brought, and proper parties (Revisal, 400) ; and if it be conceded that the solicitor was an unnecessary party, that is not ground for an exception.</p>

Appeau from Ward, J., at July Special Term, 1910, of Hyde. Tbe action was brought to recover damages of defendant Springs, tbe keeper of a hotel in Washington, N. C., for damages suffered by plaintiff by reason of having been assigned to an unsanitary room in .which was an unsafe and leaky gas fixture. The usual issues were submitted of negligence, contributory negligence,, and damage.

<p>1. Precedence — Authority.</p> <p>It is, at least, a persuasive argument against the maintenance of an action for an alleged wrong that, in the manifold complexity of human affairs, no appeal for the redress of a like grievance has found its way into the courts.</p> <p>2. Contract — Sealed Bids — Mail Carrier — Promise—Tort—Legal Right.</p> <p>Conduct, though improper and causing loss to another, does not constitute a tort unless a legal, as distinguished from a moral, right is violated, and the damage conforms to the legal standard, except where it is presumed, as in the case of nominal damages.</p> <p>3. Same — Suppress Competition — Conspiracy—Notary Public — Interpretation of Statutes.</p> <p>One who makes a sealed bid required for the contract of carrying the United States mails cannot sustain an action for damages against the notary public before whom the bond was justified, in accordance with the Federal statute, upon the ground that he requested the notary not to divulge the amount of his bid, and the notary, knowing the amount, underbid him and obtained the contract. (1) There has been no violation of a legal .duty alleged or shown; (2) had the notary promised not to compete with plaintiff in the biddings, it would, as an agreement to suppress competition, have been against public policy, the notary being qualified to bid under the circumstances; (3) the fact that defendant acted as a notary in his official capacity would not make him liable upon the breach of promise, if one was implied, to do an unlawful act; (4) a promise of the kind sued on is expressly condemned by the Federal act in question.</p> <p>4. Contracts — Mail Carrier — Right to Reject Bids — Damages Consequential.</p> <p>Under the R’oderal statute regulating the bidding by private parties for a contract to carry the United States mail, the department óf the Government reserves the right to reject any and all bids if, in its judgment, the good of the service requires it. Hence, damages are too contingent to be recoverable by- one in an action against a notary before whom his bond was justified, as required by the statute, which is based upon the allegation that the notary used the information he thus acquired to underbid the plaintiff and obtain the contract. The plaintiff may or may not have received the contract.</p>

Appeal by plaintiff from Ward, J., at November Term, 1910, of CRAVEN. The facts and issues are more fully stated in the appeal of the defendant, the Blades Company, and incorporated, in this case, in the opinion of the Court by Mr. Justice Brown. His Honor directed the jury to answer the first issue “Yes.” Plaintiffs excepted and appealed. This issue is as follows: 1.

<p>Appeal from Ward, J., at Fall Term, 1910, of Pamlico.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.</p>

Appeal front Ward, J., at September Term, 1910, of Pitt. At tbe conclusion of tbe evidence a motion to nonsuit was sustained. Plaintiff excepted and appealed. Tbe facts are sufficiently stated in tbe opinion of Mr. Jusiiie-Brown.

, at September Term, 1910, of Pitt. Civil action, bear'd on return to a preliminary restraining order. On the hearing the relevant facts and disposition of the cause in the court below were made to appear, as follows: 1.

<p>1. Mortgages — Principal- and Surety — Payment by' Surety — Assignment of Mortgage — Debtor and Creditor — Security.</p> <p>When the surety pays a note of his principal, and has the note and a mortgage securing it transferred directly to himself, he becomes a simple contract creditor of the principal and the owner of the mortgage to secure'the payment of the debt. This case is distinguished from those wherein a judgment has been obtained against the principal and surety, or where there is a mortgage and the rights of third persons as creditors or purchasers have intervened.</p> <p>2. Same — Landlord and Tenant — Liens,—Priority.</p> <p>The plaintiff, a landlord, became surety on his tenant’s note and joined with him in a mortgage of the former’s personal property and on the crops to be raised by the tenant during that crop year. He also made advances to the tenant to enable him to make the crop. The tenant, the defendant, failed to pay the note and his landlord paid it, as surety, and had the note and mortgage assigned to himself: Held, the effect of the plaintiff’s executing the mortgage was to relinquish his landlord’s lien on the crop in favor of the mortgagee, and not to surrender his rights against the tenant; and having paid the note, he could first apply the proceeds of the sale of the crop to the satisfaction of his superior lien as landlord, against the will of the tenant, the defendant. Lee v. Manly, ante, 244, cited and distinguished.</p>

<p>1. Appeal and Error — Referee—Findings—Judgment—Evidence.</p> <p>The findings of fact by a referee, supported by evidence and sustained by the trial court, are not reviewable on appeal.</p> <p>2. Deeds and Conveyances — Contracts—Interpretation—Intent—Entire Instrument.</p> <p>In the interpretation of a deed or contract, the intent of the parties, as embodied in the entire instrument, must prevail, and each and every part must be given effect, if it can be done by any fair and reasonable intendment.</p> <p>3. Same — Railroads—Material Delivered — Accessibility—Additional Work — Damages.</p> <p>In an action to recover a balance alleged to be due the plaintiff under his contract with defendant to build a railroad trestle, and for damages for failure to supply material stipulated for in the manner provided for in the contract, it appeared from the contract sued on that the defendant agreed “to deliver all material for the trestle on cars or on the ground within 300 feet of the trestle, and to be furnished in such manner and time as not to impede the plaintiff (contractor) in the performance of his part of the contract” : Hold, (1) the contract contemplated that defendant should deliver the material within 300 feet of the work, at a point from which a haul could be made to the best advantage, having reasonable regard to the nature of the ground and the attendant facts and circumstances; (2) that under a contract of this character and extent, requiring completion within a specified time, delivery of the material within the specified distance from the work, but across a slough, requiring an additional haul of half a mile, was not such delivery by defendant as called for in the contract, and for such additional work the plaintiff was entitled to recover extra compensation.</p> <p>4. Contracts — Breach—Appliances—Definite Rental — Measure of Damages.</p> <p>When a building or a given machine is shown to have a definite rental value, and the opportunity for obtaining it is lost by another’s breach of contract, the rental value of the machine usually affords a better basis for the ascertainment and award of damages, subject to the rule that the damages must have been in the reasonable contemplation of the parties and capable of ascertainment with a reasonable degree of certainty. Roclvy Mount Mills v. R. R., 119 N. C., 693, holding that interest on the value is the proper measure of damages, and other like cases cited and distinguished.</p> <p>5. Same — Railroads—Pile Drivers.</p> <p>In an action by plaintiff1 to recover damages of the defendant railroad alleged by breach of contract requiring the latter to supply at certain places, under the terms of the contract, material for the former to build a trestle, there was a confirmation by the lower court of the referee’s findings, upon evidence to support them, that by reason of such delay plaintiff’s pile driver remained idle for thirty days at a net rental value of $2.50 per day, and this was not infrequently rented by plaintiff for a definite sum: Held, the measure of damages was the rental value of the pile, driver for the time it remained idle through defendant’s default, under the contract.</p>

<p>1. Timber Deeds — Wrongful Cutting — Under Size — Prospective Value — Damage to Land.</p> <p>In an action against the grantee in a timber deed for damages alleged as arising from cutting timber less than the size sfiecified in the deed, the plaintiff cannot recover the prospective value of the trees, but the jury may consider their value in determining the injury to the land, the measure of damages being ihe decrease in the value of the land by reason of the cutting, or the difference in the value before and after the cutting.</p> <p>2. Same — Questions—Evidence—Record.</p> <p>While the court does not commend the questions asked in this case to ascertain the damages to the land by reason of the grantee in a timber deed cutting timber less than the size allowed by the deed, they are considered in connection with the other parts of the record, especially the judge’s charge, and no reversible error is found.</p> <p>3. Timber Deeds — Wrongful Cutting — Under Size — Damages to Land -r-IVleasure.</p> <p>In an action against the grantees in a timber deed for damages to the land by cutting timber of less dimension than specified, and too small to have a market value as merchantable timber: Held. competent for the jury to consider the species of the trees, whether of rapid or slow growth, or whether it would be mer-cbantable when it attained its size, the nature and drainage of tbe soil, the facilities for marketing, and any other relevant facts to enable them to determine its value at the time of the cutting, and the effect of the cutting on the value of the land. Whitfield v. Mfg. Oo., 152 N. 0., 214, and like cases cited and distinguished, where the trees were “timber trees.”</p> <p>4. Same — Defense—Probable Growth.</p> <p>A timber deed conveyed for value “all the pine timber that is now or may be standing, etc., during the term of this lease (five years), 15 inches in diameter at a point 2 feet above the ground” ; and provided that the timber should not be'cut over more than one time. In an action for damages begun after the lapse of five years, for damages to the land for cutting timber less than the specified sizeHeld, the defense was not available that the trees cut would have attained the specified size during the term of five years.</p>

, at January Term, 1911, of Fbank-LIN. The plaintiff, administrator of Annie Fuller, commenced tbis proceeding to sell land for assets to pay debts. The only claim in dispute was one in favor of the administrator of Mark Fuller, husband of Annie M. Fuller, for $700, for building a house on his wife’s land.

<p>Appeal by plaintiff from Peebles, J., at October Term, 1910, of Edgecombe.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

<p>Appeal by defendant from Ward, J., at September Term, 1910, of Pitt.</p> <p>The fact’s are sufficiently Stated in the opinion of Mr. Chief-Justice Clark.</p>

<p>1. Railroads — Fellow-servants—Logging Roads.</p> <p>The Pellow-servant Act (Revisal, 2C4G) applies to logging roads using' the agency oí steam. Bissell v. Lumber Co., 152 N. C., 125, cited and approved.</p> <p>2. Carriers of Passengers — Master and Servant — Fellow-servant— Employee.</p> <p>An employee of a railroad who customarily used the trains of the company in going to and from his work is a passenger while so doing. \</p> <p>3. Railroads — Master and Servant — Employees—Usage—Actionable Negligence — Warning.</p> <p>The plaintiff, an employee of defendant railroad, boarded the defendant’s train for the purpose of going home from his work, which had been customary: Held, it was actionable negligence for the employees of the train to suddenly start the train forward, without notice or warning, while the plaintiff was getting off at his usual place, and thus causing him to be thrown to the ground to his injury.</p> <p>4. Appeal and Error — “Case Settled” — Negligent Killing — Measure of Damages — Net Earnings — Support of Family.</p> <p>In an action for damages for the wrongful killing of plaintiff’s intestate, it is not error to refuse an instruction which limited recovery to the net earnings, after deducting the cost the deceased would have incurred in supporting his family depending upon him, the object of the statute being to render compensation as near as may be for tbe actual money value of tbe life by estimating tbe present cash value of bis probable net earnings above tbe necessary expenses for bis own support.</p>

<p>Cities and Towns — Streets—Easements—Value—Abutting Owners— Reversion — Contracts—Interpretation of Statutes.</p> <p>The plaintiff, a railroad, and a terminal company, desirous of connecting their property, entered into an agreement with a city that it should agree to the procurement of a legislative act authorizing the condemnation of a street to effectuate that purpose, the former corporations agreeing to pay the city for the easement and to build certain improvements on their adjoining lands; the act passed according to this agreement, providing that under certain named conditions the street should revert to the city for public purposes. The plaintiff denied the right of the city to compensation for the easement over the street, upon the ground that, as abutting owners, they held the fee therein: Held, (1) a city holds the easement in its streets in trust for all its citizens, and was entitled to compensation from the plaintiffs; (2) here it was entitled to compensation under an express agreement relative to the passage of the act; (3) the act itself recognized the value of the easement in the street to the city, and provided for the reversion under named conditions.</p>

<p>Appeal by defendants from Justice, J., beard at chambers at Elizabeth City, 19 January, 1911. From OhowaN.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

, at November Term, 1910, of CkaveN. In this action these issues were submitted to the jury: 1. Did Mollie E. Morton, widow of M. E. Morton, become the owner in fee of the lands in question at the death of said M. E. Morton? Answer: Yes. 2.

Tbis was a civil action. Tbe action was for damages alleged to have been caused tbe plaintiff by reason of certain affidavits filed by tbe defendants in tbe Supreme Court of tbe State affecting tbe moral character of tbe plaintiff, and protesting against tbe issuance to bim of a license to practice law. At tbe conclusion of. tbe evidence a motion to nonsuit was sustained, and plaintiff appealed.

<p>Appeal by defendant from Peebles, J., at October Term, 1910, of EdgeooMbe.</p> <p>Tbe case is stated in tbe opinion of tbe Court, by Mr. Justice Walicer.</p> <p> </p>

<p>1. Timber Deeds — Contracts—Trees Under Size — Trespass.</p> <p>An action against the grantee in a timber deed, or his assignees, for the cutting of trees of less dimension than those specified in the deed is virtually one for trespass on the land in wrongfully cutting and removing timber therefrom.</p> <p>2. Timber Deeds — Contracts—Time for Cutting — Expiration—Ownership.</p> <p>Trees not cut by the grantee or his assignees under a timber deed within the period of time therein fixed for the purpose become the property of the owner of the land.</p> <p>3. Same — Offset.</p> <p>The grantee in a timber deed may not offset .damages to the land sustained by the owner, caused by his wrongfully cutting trees under the size specified in liis contract, by the value of the trees of the specified size he has left on the land after the expiration of the period of time allowed for his cutting them, as such have then become the sole property of the owner.</p> <p>4, Timber Deeds — Contracts—Trees Under Size — Measure of Damages.</p> <p>The measure of damages in an action against the grantee in a timber deed for the wrongful cutting of trees under the size specified in the contract is the difference between the value of the land before and after the wrong was committed, or the amount by which the land was diminished by the trespass.</p>

, at September Term, 1910, of 'WARREN. Action for the recovery of land. Defendant denied tbe plaintiff’s ownership and set up an equitable estoppel, by which he says that, if he had not title to the land in dispute, he acquired it by the conduct of the plaintiff with reference to the location of a line between the said land which is claimed by him and that sold by plaintiff to Mrs. Mamie E. Miles.

<p>Mortgagor and Mortgagee — Contracts—Private Sale — Purchaser— Purchase Price.</p> <p>One who purchases land at a certain price, on which there was a mortgage, at a private sale from the mortgagee, who cancels his mortgage and thus gives a clear title to the land, is required to pay the price agreed upon without reference to any agreement between the mortgagor and mortgagee as to what part of the difference between the amount of the mortgage and the purchase price each was to receive; and the fact in this case, that the mortgagee, who negotiated the sale, received $200 more than his mortgage debt, has no bearing upon the matter.</p>

<p>Appeal by plaintiff from Ferguson, J., at Spring Term, 1910, of PerquikaNs.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

<p>1. Wills — Devises—Limitations—Conditions—Surviving Children— Deeds and Conveyances — Title—Defeasance.</p> <p>Under a devise of a life estate in lands, with limitation over to L., and to “the child or children of her body,” with proviso if L. “dies without leaving any children, then, and in no other case, to my lawful heirs,” the fee simple vests in L., defeasible upon her dying without leaving a child, and L. cannot execute a good deed in fee simple.</p> <p>2. Deeds and Conveyances — Purchaser—Doubtful Title.</p> <p>A purchaser of lands is not required to accept a doubtful title.</p>

8. Aclams, J., 13 February, 1911, at Warrenton. Tbe facts stated in tbe case on appeal are as follows: 1. Tbe General Assembly of North Carolina at its session of 1909 passed an act entitled “An act to incorporate Ahoskie School District and allow it to vote on a special tax for schools and issue bonds,” which is chapter 210 of the Private Laws of 1909. 2.

<p>Appeal from Peebles, J., at December Term, 1910, of Martin;.</p> <p>Appeal by defendant from an order confirming tbe report of a referee.</p>

, at August Term, 1910, of Halifax. Civil action to recover damages for setting fire to and burning plaintiff’s land. These issues were submitted: 1. Was the land of the plaintiff damaged by a fire set out by the negligence of the defendant, as' alleged in the complaint? Answer: Yes. Then followed issue as to damage. From a judgment for plaintiff, defendant appealed.

<p>Appeal from Cooke, J., at October Term, 1910, of WayNe.</p> <p>Action to recover damages for setting fire to plaintiff’s bouse and destroying tbe same and a part of its contents. So much of tbe plaintiff’s own testimony as is necessary to show tbe origin of tbe fire was as follows:</p> <p>“On 23 October, 1901, Jbbn IT. Sparks’ show train was pulling out of Mount Olive to go to Clinton. I was out on my piazza with my family, viewing tbe train as it passed our bouse. Sparks in great quantities were being emitted from tbe smokestack of tbe engine pulling that train of cars. My bouse was situated on tbe east side of tbe railroad, and tbe course tbe wind was blowing was from tbe northwest, coming directly across tbe railroad towards my bouse and conveying tbe sparks in great quantities over tbe bouse and at random, it seemed to me, everywhere else. That was somewhere between 12 and 2- o’clock at night. We went to bed as soon as tbe train passed. I went to sleep; my wife roused me and said there was a noise somewhere. On being aroused, I beard a noise of something breaking or something falling; I then went out in tbe ball to get my gun, but did not get it; on getting in tbe ball and looking through tbe transom over tbe front door it looked very red, but I still beard tbe noise which seemed to be overhead; I then opened tbe front door facing the railroad, and I saw tbe light from fire. I rushed out on tbe railroad right of way. Tbe fire was burning on tbe roof of my bouse, and it was falling in. I rushed in and told my wife tbe fire was burning tbe roof of tbe bouse, to get up at once, which she did. There was no evidence of fire anywhere on tbe inside of tbe bouse, either downstairs or upstairs. There were two double chimneys to tbe bouse, containing six fireplaces, but there bad been no fire in tbe bouse for two days. Tbe kitchen was at tbe rear of tbe bouse, a single room 10 x 12 feet and 9 foot pitch, and we bad not cooked in tbe stove nor bad any fire in tbe kitchen since 6 that morning. We bad spent tbe entire day in tbe show grounds and in tbe shows. Tbe-bouse was consumed and (nearly) all tbe furniture. . . . There was no fire in tbe kitchen when I first discovered it. Tbe fire was confined to tbe front part of tbe roof of tbe main bouse. . . . I bad not been asleep very long when fire broke out. Day broke about two hours after tbe fire was over. It appeared to be between 1 and 3 o’clock when fire was first discovered.”</p> <p>There was other evidence tending to show that tbe fire was caused by sparks emitted from tbe smokestack of tbe defendant’s locomotive engine. There also was evidence, on tbe part of tbe defendant, that tbe engine bad a spark arrester in good condition and of tbe best approved type in common or general use, and that no sparks were emitted from the engine as it passed near the plaintiff’s house. The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed. ,</p>

<p>1. Master and Servant — Independent Duty to Servant — Contributory Negligence — Proximate Cause — Issues.</p> <p>Where a negligent default has been established against an employer by reason of some breach of an arbitrary and independent duty which he owes to his employee, as in failure to supply “machinery known and approved and in general use,” a disobedience of instructions on the part of the employee and its effects are to be considered and determined, as a rule, on the issue as to contributory negligence, involving also the question of whether such disobedience is the proximate cause of a given injury.</p> <p>2. Same — Ordinary Work — Instructions—Disobedience—Negligence.'</p> <p>Where no breach of an arbitrary or independent duty of an employer to his employee is shown, and the former, having the latter to do an ordinary piece of work, gives him instructions concerning it which provide and afford a simple and safe method of doing the work, his instructions may also be considered in reference to his responsibility on the first issue, as to his negligence ; and if it is shown that conditions have been changed and work of the kind indicated rendered dangerous by reason of the employee’s willful disobedience, that the emploj^er did not approve or encourage, no responsibility should attach to him; and this position, as a rule, is not affected by the view the employee may take of his surroundings.</p> <p>3. Same — Evidence—Instructions.</p> <p>The plaintiff was employed by the defendant to dig in a sand pit 13 feet long, 8 feet wide at the top and S feet deep. There was evidence for defendant tending to show that there was no danger in digging in the pit if the sides were “flammed” or sloped, and that in violation of instructions the plaintiff continued to dig straight down or undermine the side, and in consequence it caved in on him to his injury: Reid correct, an instruction tendered by defendant in substance, that if they believed the evidence of defendant they should answer the first issue, as to defendant’s negligence, “No”; and it was error to so modify the instruction as to make their answer to the issue depend upon whether the plaintiff, while in the pit, could see and appreciate his surroundings when digging in disobedience to his instructions.</p>

, at October Term, 1910, of Edge-combe. The plaintiff, an employee of the defendant, alleges that he was injured by the negligence of the defendant in that the defendant failed to furnish him a safe tool with which to do his work. The defendant denied that it was negligent, and alleged that the plaintiff was guilty of contributory negligence.

, at September Term, 1910, of PENDER. This is an action to recover damages for cutting timber on the land of the plaintiff, and to restrain the defendant from further trespassing thereon.

, at April Term, 1910, of Edgecombe. This action is brought to recover damages for the alleged negligent killing of plaintiff’s intestate, Paul Exum. At the conclusion of the evidence a motion to nonsuit was allowed, and plaintiff appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>Appeal from order appointing a receiver in an action from LeNOIR, made by 0. II. Allen, J., at chambers, in Kinston, 15-February, 1911.</p> <p>The facts are sufficiently stated in the opinion of tbe Court, by Mr. Justice Walker.</p>

, at November Term, 1910, of LENOIR. Tbe plaintiff, W. P. Hardy, sues on three policies of insurance, which he alleges were issued by the defendant on 19 October, 1904, on the life of Parrott M. Hardy. He claims that he had an insurable interest in the life of the insured, and also as assignee of the policies. The defendant resisted recovery upon the grounds: 1.

Appeal by defendant from Cook, J., at October Term, 1910, of Wayne. Civil action beard upon demurrer to tbe complaint. The court overruled the demurrer. Defendant appealed. The facts are sufficiently stated in the opinion of Mr. Justice Brown.

, at September Term, 1910, of WayNe. Civil action for damages. At the conclusion of the evidence the court sustained a motion to nonsuit, and plaintiff appealed. In this Court plaintiff’s counsel entered a nolle prosequi as to defendant,' the city of Goldsboro. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown. \

<p>Appeal by defendants from Qoolc, J., at November Term, 1910, of Harnett.</p> <p>Tbe facts are sufficiently stated in tbe opinion of Mr. Chief Justice Clark.</p>

H. Allen, at November Term, 1910, of Columbus. This action was brought to recover the possession of land, and damages for withholding it. Plaintiff introduced in evidence deeds from Caleb Allen and wife, Susan Allen, to John Bright, dated 21 February, 1901, and from John Bright and wife, C. E. Bright, to A. E. Powell, dated 22 December, 1905, and from A. E. Powell to the plaintiff, Albert Bowen, dated 8 June, 1907.

<p>Appeal from the order of Ward, J., continuing an injunction to the hearing, heard at chambers in Hendersonville, 23 May, 1910. From Franklin.</p>

, at December Term, 1910, of New Hanover. Civil action, beard on exceptions to report of referee. On a former appeal in this cause, reported in 147 N. 0., 106, it appeared that plaintiff, having an account for goods, sold and delivered, against S. H. Finch and W. R. Person for the amount of $611.46, sought to charge the defendant J. E. Person, the present ap'pellant, as guarantor for a portion of said account.

, at November Term, 1910, of LENOIR. Plaintiff commenced this action to recover $615.71 for breach of contract, as a first cause of action, and $187.50 for goods sold to the defendant, as a second cause of action. The defendant admitted the execution of the contract, denied a failure to perform on its part, and alleged a breach of the contract by the plaintiff, and demanded $350 damages on account of said breach.

Appeal by defendant from Cooke, J., at October Term, 1910, of Waice. This is an appeal from a judgment overruling a demurrer to tbe complaint.

Appeal by defendant from CooJce, J., at November Term, 1910, of HaRNEtt. The plaintiff, an employee of the defendant, brought this action to recover damages for personal injuries, alleging that the defendant failed to furnish him a reasonably safe place to work, that the machinery of the defendant was defective, that the defendant failed to inspect it, and failed to instruct and warn him.

<p>Appeal from Whedbee, J., at October Term, 1910, of New HANOVER.</p> <p>Civil action, brought to recover damages for a personal injury received by plaintiff in operating a planing machine in defendant’s mill. The usual issues of negligence, contributory negligence, and damage were submitted to the jury and answered in favor of the plaintiff. From the judgment rendered, the defendant appealed.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.</p>

<p>1. Cities and Towns — Streets—Dedication and Acceptance — Implied —Acts of Parties.</p> <p>An offer of dedication and. acceptance of a way for a street in an incorporated town may be sufficiently evidenced by tlie acts of the owners of the land and the town authorities, and in this case the acts of dedication and acceptance held sufficient by the acts of the owners in acquiescing for years in the use of the locus in quo as a public street, in naming the street as boundaries to lands conveyed by the abutting owners, and by the acts of the incorporated town in paving the sidewalks of the street and maintaining it.</p> <p>2. Cities and Towns — Streets—Condemnation—Legislature—Inherent Powers — Constitutional Law.</p> <p>While there is no constitutional provision giving the Legislature power to condemn private lands for public purposes, the Legislature has an inherent right to do so, essential to the due exercise of the powers of government and to the promotion of the public welfare; and this power is practically unlimited, though subject to judicial control, if the purpose be a public one and sufficient provision is made for compensation to the owner of the property proposed to be taken.</p> <p>3. Cities and Towns — Streets—Condemnation—Legislative Powers— Notice — Hearings—Ordinance.</p> <p>When the charter of an incorporated town expressly provides that the town authorities may at once enter upon the land and proceed with the proposed improvements, and that the filing of the petition for the purpose of compensating the landowners shall not have the effect of stopping or delaying the work, and just compensation to the owners is properly provided for, it is not necessary to the validity of condemnation proceedings conducted in pursuance of the act that the owners of the land be notified and allowed a hearing before the passage of an ordinance of the town directing the widening and improvement of the street.</p> <p>4. Cities and Towns — Streets—Condemnation—Assessments—Commence Work.</p> <p>It is not required that an appraisement be made of the land condemned by ■ an incorporated town for the use of its public street, before taking the same and commencing work thereon, when the town acts under legislative authority in condemning the street, -and there is sufficient provision for compensating the owners of the land.</p> <p>5. Cities and Towns — Streets—Condemnation—Public Use — Questions for Court — Necessity—Legislative Powers.</p> <p>When property is condemned for a public street, it is a taking for a public use, as a matter of law; but the question as to the necessity or expediency of devoting the property to the public use is one which is exclusively within the province of the legislative department.</p> <p>6. Cities and Towns — Streets—Condemnation—Shade Trees — Dam-num Absque Injuria — Legislative Powers.</p> <p>When the charter of a town expressly confers authority' to widen a street and to remove any and all obstructions therefrom, and also makes adequate provision for compensation to the owner of the property taken for the purpose, the town acting in good faith and in a careful exercise of the powers conferred is not liable to an abutting owner for removing shade trees from the street in front of his dwelling, for such acts are damnum absque injuria.</p> <p>7. Cities and Towns — Streets—Condemnation—Prior Legislative Acts — Interpretation of Statutes.</p> <p>A legislative act passed prior to the enactment of a charter of a town, in respect to condemnation proceedings, is repealed as to all matters in conflict with the charter; and condemnation proceedings for street purposes being had in accordance with the charter provisions are not affected by restrictions placed thereon by the prior act.</p>

<p>1. Advancements — Definition.</p> <p>An advancement is a free and irrevocable gift by a parent, in bis lifetime, to bis child, or to a person standing in place of such child, on account of such child or person’s share in the donor’s estate, which he will receive under the statute of descent or distribution if the parent or donor die intestate.</p> <p>2. Advancements — Interest—Accounting.</p> <p>No interest on an advancement made by a deceased parent to his child shall be charged against the child until an accounting, when same is had within the two years’ time allowed by law to settle the estate of the intestate, whether the advancement had been made in lands, investments, or money.</p> <p>3. Same — Rents and Profits — User.</p> <p>Where in 18S5 a father put one of his sons in possession of a tract of land, and the latter remained in possession, enjoying the rents and profits until 1900, when the father conveyed the land by way of advancement to the son and his seven children, it was Held, (1) that the rents and profits of the land until conveyance made were under ordinary conditions properly chargeable as advancements; (2) that owing to the difficulty of determining the amount of such rents and profits by reason of improvements put upon the land by the son and claimed as permanent, the proper basis of accounting in the present case is held to be the interest on the value of the land from the time the son became possessed of it, and as it then was, until the conveyance in 1906; (3) that the son’s interest in the land at the time of' the conveyance made in 1906 is also chargeable as an advancement and without interest.</p> <p>4. Same.</p> <p>When an advancement of lands has been made by the intestate to his child, no rents or profits are chargeable to the child until an accounting, if had within the time allowed by law for the settlement of estates.</p> <p>5. Executors and Administrators-^Personalty — Deceased Widow— Distributive Share — To Whom Payable.</p> <p>The intestate died, leaving children by a former marriage and a widow, who subsequently died intestate. An administrator of her estate qualified, and was made a party in an action between the husband’s heirs at law for division of his property, in which his administrator was also a party: Held, in this case the share of the deceased widow in her husband’s personal property should be paid to her administrator.</p> <p>6. Advancements — User—Damages—Declarations—Evidence.</p> <p>Declarations of the intestate as to the value of lands conveyed his sons as advancements made after the date of the deeds: Held, in this case, incompetent, and not sufficient to charge one of the sons, who had theretofore for some years had the use of the lands, with the value of timber he had then cut therefrom.</p> <p>7. Appeal and Error — Reference—Remand—Rereference—Procedure.</p> <p>Upon appeal in this case the Court so decidedly departed from the basis of accounting adopted by the referee that it is directed that it be remanded to him with directions to restate the account and revise his findings of fact, hearing further testimony if he. considers it desirable to do so.</p>

, at October Term, 1910, of New HaNOVEB. Civil action, beard on exceptions to report of referee. Held: among other things, that the claim of the petitioner, Arringdale, was a valid claim and a prior lien ■on a portion of the assets to the amount of $6,000, to wit, the notes, with some interest, and that the open account was a debt to be paid pro rata with other unsecured and general creditors of the corporation.

, at November Term, 1910, of CRAVEN. Civil action to recover damages for burning a dry-kiln. Tbe usual issues were submitted. From a verdict and judgment for plaintiff, tbe defendant appealed. Tbe facts are stated in tbe opinion of tbe Court by Mr. Justice Brown.

, beard at chambers, 6 January, 1911. This is an action brought by plaintiffs in the Superior Court of Edgecombe County to restrain the defendants from selling the property of plaintiffs pending the determination of this action, in which is involved the legality of certain taxes levied by the commissioners of Edgecombe and Martin counties upon the same personal property, to wit, certain solvent credits.

<p>1. Appeal and Error — Issues of Fact — Questions for Jury.</p> <p>In the defendant’s appeal it appears that the jury found for plaintiff! upon matters of fact properly submitted, and no error is found.</p> <p>2. Contracts — Sale of Fertilizer — Damages to Crop — Vendee’s Duty —Knowledge.</p> <p>The plaintiff brings his action to recover damages to his crop arising from a breach by defendant of its contract to furnish him with a certain quality of cotton-seed meal to be used as a fertilizer, and acknowledged that he discovered the defects in time to have procured other fertilizer of the kind required, which he could have obtained: Held, it was incumbent upon plaintiff to avoid any damages arising from defendant’s failure to properly perform his contract, and he could not recover the damages sought in this action.</p> <p>3. Penalty Statutes — Violation—Amount—Legislative Discretion.</p> <p>The penalty prescribed by Revisal, sec. 3956, relating to sales of fertilizers, is a matter resting within the legislative discretion, and is prescribed as a punishment to enforce the execution of the law, in addition to compensation recoverable for the damages sustained.</p> <p>4. Penalty Statutes — Judicial Notice — Pleadings—Proof.*</p> <p>Section 3956 of the Revisal imposes a penalty for the violation of the law by those selling fertilizers, for protection to the farmers in their use, and, being a public statute, the courts will take judicial knowledge thereof and permit a recovery thereunder, though not specially pleaded', when there is allegation and proof that section 3957, relating to the sale of cotton-seed meal as a fertilizer, has been violated.</p> <p>5. Same — Cotton-seed Meal. |></p> <p>When there is allegation and proof that one selling to the user cotton-seed meal as a fertilizer has failed to show, by branding-on the bags or tags attached, the amount of ammonia or nitrogen, or the name of the manufacturer, as required by Revisal, sec. 3957, the penalty prescribed by section 3956 is recoverable, though this section be not pleaded. The demand for relief is immaterial, and a judgment should be rendered as justified by the pleadings and proof.</p> <p>6. Same — Relief Demanded.</p> <p>Upon allegation and proof that defendant has sold plaintiff cotton-seed meal to be used by the latter as fertilizer, without branding or tagging the bags as required by Revisal, see. 3957, the fact that the plaintiff demands relief under section 3960 does not prevent his recovery of the penalty prescribed by section 3956.</p> <p>Walker, J., concurring; Brown, J., dissenting.</p>

Appeal by defendant from Whedbee, J., at August Term, 1910, of DupliN. Tbis is a motion by defendant, under section 579. of tbe Ee-visal, to enter satisfaction of a judgment rendered in favor of tbe plaintiff at August Term, 1901, of tbe Superior Court of Duplin County.

B. Alíen, J., at August Term, 1910, of Chatham. Action for divorce from bed and board. These issues were submitted without objection: 1. Did the defendant abandon the plaintiff, as alleged? Answer: Yes. 2. Did the defendant offer such indignities to the person of the plaintiff as to render her condition intolerable and her life burdensome? Answer: Yes. 3. If so, was the plaintiff a dutiful wife and without blame on her part?

<p>1. Lands — Title—Plaintiff's Legitimacy — Defendant’s Title.</p> <p>In an action for possession of lands, wherein the plaintiff’s title depended solely upon the question of her legitimacy, a finding by the jury as to defendant’s title is not material, as plaintiff must depend upon the strength of her own title.</p> <p>2. Lands — Title—Legitimacy—Declarations—Court Records — Secondary Evidence.</p> <p>The plaintiff sued for possession of lands, and her title thereto depended solely upon her legitimacy. It was proper to exclude the evidence of a witness, who was a juror in a former action wherein the defendant was not a party, which was offered for the purpose of showing that therein the jury found the question of legitimacy in plaintiff’s favor, there being no evidence, among other reasons, that the court record had been lost or destroyed.</p> <p>3. Same.</p> <p>Only duly exemplified and authenticated copies of the records in judicial proceedings are competent to prove their contents, and parol evidence of their contents is secondary and inadmissible evidence unless the original record is lost or destroyed or cannot be produced.</p> <p>4. Evidence — Declarations—Legitimacy—Ante Litem Motam.</p> <p>Declarations of deceased persons as to the legitimacy of the plaintiff, offered in an action involving that question, are incompetent if not made ante litem motam.</p> <p>5. Same — Time.</p> <p>Dor declarations of deceased persons to be competent with respect to their having been made ante litem motam, they must be free from suspicion of bias and must have been made before the beginning of the controversy, which is not necessarily the commencement of the action; and testimony of such persons given at a former trial involving the same questions as in the present one is incompetent.</p> <p>6. Evidence — Objections and Exceptions.</p> <p>'A general objection to evidence which is partly competent cannot be sustained; the objection should specify the grounds thereof and be confined to the incompetent evidence.</p> <p>7. Evidence — Legitimacy—Declarations—Ante Litem Motam — Pedigree — Independent Recollection.</p> <p>In an action for possession of land, wherein plaintiff’s title depended solely upon her legitimacy, objection was made by her to the testimony of defendant’s witness, who stated that he remembered the time of the marriage; that plaintiff’s mother (now deceased) came through his yard “that morning and said she had been married that day,” and that plaintiff was then 2 or 3 years old. The evidence held competent, as a declaration relating to pedigree, it having been made by the mother ante litem motam, and being her spontaneous exclamation as to an event then uppermost in her mind, was free from any suspicion of error; besides, the mother’s declaration was a circumstance which tended to fix in the witness’s mind the fact that, at that time, he had knowledge of the marriage and of plaintiff’s age.</p>

From Wake. Heard by Daniels, J., at chambers, 5 April, 1911. Proceedings in mandamus. The respondent demurred to the petition. Upon the hearing the demurrer was sustained. Plaintiff appealed. The facts are stated in the opinion of the Court by Mr. Justice Brown.

R. Allen, J., at October Term, 1910, of ANSON. Civil action for personal injury. Tbe usual issues of negligence, contributory negligence, and damage were submitted to tbe jury. Tbe response to eacb issue was in favor of plaintiff. From tbe judgment rendered, tbe defendant appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Appeal by plaintiff from Lyon, J., at tlie October Term, 1910, of DURHAM. The plaintiff sues to recover damages for personal injuries. At the conclusion of the evidence, a judgment of nonsuit was entered, and the plaintiff appealed. The plaintiff gives the following account of his injury: “I was 21 on 6 June, 1910. I worked for the defendant on 16 February, 1910. Had been living at a colored boarding-house nine months. Have been in Durham three years.

<p>Appeal by defendant from W. R. Allen, J., at Spring Term, 1910, of Mooee.</p> <p>Tbe facts are sufficiently stated in the opinion of tbe Court by Mr. Chief Justice Clark.</p>

<p>Appeal by plaintiff from Whedbee, J., at February Term, 1911, of HakNEtt.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Glarrk.</p>

<p>1. Street Railways — Alighting Passengers — Negligence—Questions for Jury — Instructions.</p> <p>In an action for damages against a street car company for negligence alleged in suddenly starting the car while plaintiff, a woman of 58 years, seeming to the conductor to be “old and clumsy,” was alighting at her destination, of which she had previously notified the conductor, from an ordinary summer car with seats running across and handholds at either end of the seats, the distance from the floor of the car to the running-board being 17 inches and from that to the ground 25 inches, the ground sloping at the place somewhat over 9 inches, an instruction is proper, that if the jury should find, under supporting and conflicting evidence, that if the car was suddenly started and jerked as the plaintiff was alighting with one foot on the running-board and the other in the act of descending to the ground, whereby the plaintiff was thrown to the ground, they should answer the issue of negligence “Yes,” but otherwise if the plaintiff fell on the sloping ground after leaving the car.</p> <p>2. Street Railways — Alighting Passengers — Duty of Conductor— Rule of the Prudent Man — Negligence—Questions for Jury.</p> <p>As to whether a 'street-car conductor 'owes a duty to assist a passenger to alight is a question for the jury, under the rule of the prudent man, with the burden of proof on plaintiff, where such assistance would seem to be required; and defendant’s negligence is a question for the jury when there is evidence tending to show that plaintiff was a woman 58 years old, appeared to the conductor to be “old and clumsy,” was injured while alighting from a summer car at a customary stopping point, her destination, of which she had previously notified the conductor, and where the ground sloped more than 9 inches.</p> <p>3. Negligence — Release—Agreeing Mind — Questions for Jury.</p> <p>In this case there was evidence tending to show that defendant obtained a release from plaintiff for damages in consideration of $10 and the payment of plaintiff’s drug and doctor’s bill, soon after the injury complained of was inflicted, while the latter was in bed suffering from the effects of the injury and under the influence of drugs: Held, it was a question for the jury to determine whether the plaintiff at the time of the execution of the release had sufficient mental capacity to understand its nature and effect.</p>

, at February Term, 1911, of Wake. Civil action, beard on case agreed. It was made to appear that, on 12 June, 1905, the defendant Nelson, patentee and owner of an improved paper cutter, entered into a contract with M. N. and E. M. Andrews, parties of the second part, by which the said parties acquired the exclusive right to manufacture and sell said patent and any and all improvements on the same that might be made by the party of the first part.

, at April Term, 1910, of FraNklIN. This action was brought by the plaintiffs on the theory that their intestate and ancestor, C. H. Sandlin, at the request of the defendant B. S. Kearney, who wished to own the same, but was unable to raise the money, had purchased a tract of land on 1 March, 1880, at public auction from W. A. Davis, administrator, and commissioner of the court, for the sum of $712, and received a deed therefor to himself, upon the agreement and trust that…

S. Adams, J., at December Term, 1910, of Beaufort. Civil action to recover damages for injury caused by alleged negligence on tbe part of defendant company. Tbe jury rendered tbe following verdict: “1. Was tbe plaintiff injured by tbe negligence of tbe defendant ? Answer: Yes. “2. Did tbe plaintiff contribute to bis injury by bis own negligence? Answer: Yes. “3.

<p>Appeal by plaintiff from Whedbee, J., at August Term, 1910, of Sampson.</p>

<p>Ejectment — Defendant’s Bond — Receiver—Power of Court — Supreme Court — Supersedeas Order — Practice.</p> <p>Revisal, 453, requiring defendant in ejectment to give bond before putting in a defense to the entire action, does not abridge the power of the court to appoint a receiver to secure the rents and profits; and while the Supreme Court, under its general power of “supervision and control over the proceedings of the Superior Court,” might exercise the extraordinary right to grant a swpersedeas to vacate an order appointing a receiver and permit defendant to give bond, it will not do so except under unusual circumstances, as when there has been a gross abuse of discretion by the trial judge.</p>

Appeal by defendant from W. J. Adams, J., at August Term, 1909, of UNION. Indictment under Eevisal, sec. 2431. Tbe defendant was convicted and sentenced to thirty days on tbe roads and to pay tbe costs. From tbis judgment be appeals to tbe Supreme Court. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

<p>Appeal from Ferguson, J., at February Term, 1911, of Ckavekt.</p> <p>Tbe defendant was indicted for conducting a lottery. He, witb tbe other members of tbe Perry-Owens Sboe Company, organized tbe Perry-Owens Suit Club, wbicb engaged in tbe business of selling clothing under tbe following plan, as shown by tbe certificate given to each member of tbe club:</p> <p>“Perry-Owens Sboe Company’s Suit Club shall consist of fifty (50) members. In consideration of each member paying into tbe general fund tbe sum of two dollars ($2) weekly for twelve weeks, and one dollar ($1) tbe week following, or less as explained below, each and every member shall be then entitled to and shall receive from us a twenty-five dollar ($25) tailor-made suit or overcoat. Each and every Friday evening at 8 o’clock there shall be held at our store a drawing, and tbe member whose name is drawn at that time shall be entitled to bis suit or overcoat immediately. After tbe thirteenth drawing every member having made all payments shall be entitled to bis suit or overcoat immediately. Members’ certificates are transferable; but upon tbe failure of any member to njake bis payments for two consecutive weeks, tbe permanent cancellation of this certificate shall be optional witb us.”</p> <p>Under this arrangement each member received a suit of clothes worth tbe full sum of $25, and there was no chance for any member to lose anything. Twelve of the fifty members received suits for less than $25. No tickets were issued, and nothing was paid by any member for a chance. All sums paid in were credited to the several accounts, and there was a fixed maturity value. Under this arrangement the Perry-Owens Shoe Company received for each suit an average price of $22.12. Twelve suits were sold for $156, or $144 less than the selling price.</p> <p>There was evidence tending to show that the defendant actually conducted the business according to the plan set out in the certificate, and that several of the members received suits of .clothes at much less than their value or their regular selling price, and the others paid full value for them. The defendant was convicted, and appealed.</p>

, at December Term, 1910, of Pitt. Indictment for selling liquor. Tbe defendant was convicted and sentenced to tbe roads. From tbe judgment be appeals. The facts are sufficiently stated in the opinion of Mr. Justice Brown.

, at September Term, 1910, of BERTIE. Tbe case on appeal states tbe facts as follows: “Tbis was an indictment for larceny, tried before bis Honor, Garland, 8. Ferguson, and a jury, at Bertie Superior Court, September Term, 1910. The only point involved in tbis appeal is tbe exception to tbe judgment of tbe court, who sentenced tbe defendants Tilden Cherry and J. M. Ruffin to tbe roads for twelve months in their absence from tbe court.

, at September Term, 1910, of OeaveN. The defendant was tried before the mayor of the city of New Bern upon a warrant charging the violation of Ordinance 168, which is as follows : “Sec. 168. That it shall be unlawful for any person to erect or build in the said fire district any building or construction composed of wood or built out of lumber.

, at November Term, 1910, of Nash. Indictment for murder. There was verdict rendered that tbe prisoner was guilty of murder in the first degree. Judgment imposing sentence of death, and prisoner excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Moke.

<p>Appeal from Ward, J., at December Special Term, 1910, of Pitt.</p> <p>The defendant stood indicted in tbe following bill:</p> <p>“The jurors for the State upon their oaths present, that The Southern Cotton Oil Company, a corporation, late of the county of Pitt, on tbe first day of April, 1909, witb force and arms, at and in the county aforesaid, did unlawfully and willfully sell and offer for sale to J. R. Bunting a quantity of cotton-seed meal in sacks, said sacks not being branded as is required by law and said sacks containing said meal having-tags attached to said sacks which did not contain and did not have branded on the tags -containing it the following data, to wit: (1) Ootton-seed meal, with brand; (2) weight of package; (3) ammonia or nitrogen; (4) name and address of manufacturer, as required by law, the said meal not being offered for sale or sold to a manufacturer or manufacturers for use in manufacturing fertilizers, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>The defendant was convicted and fined $50, and appealed.</p>

<p>1. Indictment — Common-law Misdemeanors — Superior Courts — Jurisdiction.</p> <p>When an indictment charges an offense indictable at common law it is within the exclusive jurisdiction of the Superior Court.</p> <p>2. Same — Statutory Offense — Justice of the Peace.</p> <p>An indictment charging that the defendant in certain public highways, in the presence of divers persons passing and repass-ing, “did curse in a loud voice and use profane language for the space of five minutes (reciting the profane words), with great disturbance and. to tbe common nuisance of the good citizens of the State,” states the offense, of a common-law nuisance, and is within the jurisdiction of the Superior Court, notwithstanding he may have been indicted under a statute relating to a certain county whereunder conviction may have been had of a less offense, made a misdemeanor by the statute, cognizable before a justice of the peace in that county.</p> <p>3. Same.</p> <p>An act relating to a certain county, making it “unlawful for any person to act in a disorderly manner by being drunk or using profane, obscene, or boisterous language on any public road” therein, does not oust the jurisdiction of the Superior Court of an indictment going further in its charges, and stating a common-law misdemeanor, though conviction may have been had under the statute.</p>

<p>Appeal from Qoolc, J., at September Term, 1910, of Wake.</p> <p>Indictment for the illicit sale of spirituous liquor. The defendant was convicted, and from the judgment of the court sentencing him to the roads, appeals to this Court.</p>

<p>Appeal by defendant from J. S. Adams, J., at Fall Term, 1910, of TYRRELL.</p>