Volume 155 — North Carolina Reports

, at tbe January Term, 1911, of DURHAM. Civil action brought to recover damages for alleged negligence upon tbe part of defendant’s gate-keeper in injuring plaintiff while passing through the railroad gates protecting the tracks at Corcoran street crossing in the city of Durham. The usual issues of negligence, contributory negligence and damages were submitted. The jury answered the issues in favor of the plaintiff and assessed his damage at $1,000. Defendant appealed.

<p>Electricity — Negligence—Evidence—Questions for Jury.</p> <p>Evidence of the death of plaintiff’s intestate by the negligence of the defendant in permitting an excessive voltage of electricity upon the wires where the intestate was employed to work by contractors repairing the building, and a defect in the mechanism of an electric socket for a lamp, held sufficient, in connection with other circumstantial evidence, to take the case to the jury.</p> <p>Clark, C. J., delivering the opinion; Allen, J., concurring therein; Hoke, J., concurring in the result; Brown and Walker, JJ., dissenting.</p>

<p>1. Written Contracts — Parol Evidence — Fraud.</p> <p>One who can read and write and has been afforded opportunity to do so, and to inform himself, will not ordinarily be relieved of liability under a written contract he has thus signed, upon the ground that he did not understand its purport or that it was an improvident one.</p> <p>2. Same — Exceptions —Misrepresentation—Inducements—Confidential Relations — False Security.</p> <p>The ordinary rule that one will notvbe relieved from liability under his written contract which he could have read and informed himself of before signing cannot be invoked in behalf of one who lulls the other party to security, for the law does not require men to deal with each other upon the presumption that they are rascals.</p> <p>3. Same — “Caveat Emptor" — Equal Knowledge.</p> <p>Where the falsity of misrepresentation relied on to avoid liability under a contract is patent and the party seeking to avoid it accepts and acts upon it with his eyes open, he has no right to complain, for if the parties have equal information, the rule of caveat emptor applies unless the complaining party has fraudulently been prevented by some artifice or contrivance of the other party from making proper inquiry.</p> <p>4. Deeds and Conveyances — Right of Way — Electricity—Fraud— Parol Evidence — Confidential Relations — Misrepresentations.</p> <p>The owner of lands will not be held upon his written contract granting an easement to a power company to erect steel towers upon his land, when it is shown that the agent of the company was well known to him, and he relied upon the assurances of the agent that only a line of one or two poles and wires were included in the conveyances; that the agent of the company read the writing without mentioning the towers which were expressly specified therein, and that at the time actual work had been com-meneed to tlie knowledge of the agent ancl without that of the grantor upon a location of a line of towers and wires that would embrace a greater acreage than verbally represented, though the grantor could have read the grant and have informed himself of its contents at the time of signing it.</p> <p>5. Deeds and Conveyances — Contracts—Inadequate Consideration— Fraud — Evidence.</p> <p>When the inadequacy of the consideration for a contract or conveyance is so gross as to shock the conscience, it is in itself sufficient evidence of fraud to submit the case to the jury; but mere inadequacy thereof, while it may not alone justify setting aside a contract or other paper-writing, may be considered by the jury with other evidence on the question of fraud.</p> <p>6. Deeds and Conveyances — Fraud—Misrepresentation—Evidence— Requisites of Proof.</p> <p>In an action to recover damages of defendant power company for entering upon plaintiff’s lands and erecting steel towers and stringing wires for conveying electricity for power purposes, wherein the defendant set up authority to .do so under a written grant which the plaintiff sought to set aside for fraud in the procurement, a charge, in part, in this case held correct, that if the jury find that the representations made by defendant’s agent were false to the knowledge of the defendant, and that they were made with intent and were calculated to deceive plaintiff, who relied thereupon and was thereby deceived and damaged, they should answer the pertinent issue in the affirmative.</p>

, at tbe May Term, 1910, of New HANOVER. Tbis action was brought by the plaintiff against tbe City of Wilmington and James E. Woolvin to recover damages for negligently causing tbe death of E. M. Gregg, her husband and intestate.

<p>Appeal from Biggs, J., at tlie January Term, 1911, of Ala-mance.</p> <p>The plaintiff sues to recover of the defendants the sum of $25,000 for the death of her intestate, alleging that his death was caused by the negligence of the city and its agents and servants, the defendants Eussell and Harris, and that the negligence consisted in not providing a safe place for intestate to work while in the employ of the defendant, the city of Burlington, and while engaged in the work of building a reservoir for sewerage purposes. She alleges that this negligence consisted in not sufficiently curbing the walls of the reservoir while intestate was working therein.</p> <p>The defendant city of Burlington, answering, denied all allegations of negligence, and averred that the work in which the intestate of plaintiff was engaged at the time of the accident, resulting in his death, was being done and performed by the defendants Eussell and Harris, as independent contractors of the defendant city of Burlington, and attached to said answer the written contract between the city and Eussell and Harris. Tbe city further sets up tbe defenses of assumption of risk and contributory negligence on tbe part of the intestate of plaintiff.</p> <p>Plaintiff introduced one W. C. Dameron, who testified as follows: “I was present when the bank caved in and the plaintiff’s intestate was killed thereby. A. F. Barrett, the mayor of Burlington, and J. L. Scott, an officer of said city, had been about the pit one hour before the cave-in occurred. Mr. Kueff-ner was there inspecting the work. There was a dispute between Mr. Stevens, an engineer, and Mr. Rodden, a foreman of defendant Russell, as to the manner of mixing certain concrete. I was there at the request of Russell, and Rodden was directing the work as foreman of the defendants Russell and Harris. Rodden (foreman of Russell and Harris) directed plaintiff’s intestate Denny to do the exact work he was doing at the time of the cave-in by which Denny sustained the injury that killed him.”</p> <p>W. 0. Johnson, plaintiff’s witness, testified: “I was in the reservoir when cave-in occurred, and was employed by defendant Russell and paid by Russell. Denny was paid off at the same time and by the same person I was.”</p> <p>L. J. Rodden, for plaintiff, testified: “I was employed to work as foreman on the reservoir at Burlington by Russell and Harris. Mr. Kueffner was there and giving directions as to placing concrete. I was employed 'by Russell and Harris as foreman of this work, and Mr. Kueffner simply did the locating as to where concrete was to go, and observed the mixing of concrete. Russell paid for the material and I, as foreman, hired Denny and Russell paid him. I directed Denny to do the work he was doing at the time of the accident. I had power to discharge Denny.”</p> <p>A. P. Barrett, for plaintiff, testified: “I was mayor of Burlington at the time of the accident. The city of Burlington had an engineer directing the work of putting in its waterworks named Gilbert 0. White, and Mr. White had two assistants, one named Stephens and one named Kueffner.” He proved the execution of the original contract, it being Exhibit A annexed to the answer, as the contract under which this work was done by Russell and Harris.</p> <p>Defendant city of Burlington introduced in evidence the contract, Exbibit A annexed to answer, and also introduced evidence showing that White, its general supervising engineer, had only instructed Kueffner to exercise such oversight over the work as to see that it was done according to contract. Defendant city further introduced evidence as to what Kueffner did in inspecting this work. There was further evidence introduced showing the manner in which the accident occurred.</p> <p>At the close of all the evidence, his Honor intimated that he would instruct the jury, if they found the facts to be as testified by the witnesses, to answer the issues, as to the liability of the city, in its favor. The plaintiff, in deference to this instruction, submitted to a nonsuit as to the city. Plaintiff entered a nonsuit as to the defendants Russell and Harris, excepted to the judge’s charge, and appealed from the judgment rendered upon the verdict, which was in favor of defendant.</p>

_ Appeal from 0. H. Allen, J., at tbe March Term, 1911, of ANSON. Civil action beard on motion to discharge an attachment and dismiss the case.

, at tbe October Term, 1910, of Gltil-EORD. On tbe 25tb of April, 1901, tbe plaintiff sold to tbe defendant W. B. Lassiter a tract of land for $2,000, and accepted in part payment two notes under seal. One of these notes was for $300, and executed 29 December, 1902, payable six months from date to S. H. Carter, and tbe other was for $200, and executed 17 August, 1903, payable on demand to said Carter. Tbe name of S. II.

The Corporation Commission heard and overruled the exceptions of the respondent, and upon appeal being taken, the cause was docketed for trial in the Superior Court of Iredell County, where it was heard upon the findings of fact and record as made up by the commission. His Honor affirmed the said findings, and the defendant appealed.

<p>Appeal by defendant from Daniels, J., at tbe January Term, 1911, of DURHAM.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

R. Allen, J., at the November Term, 1910. of UNION. Tbis action was brought to recover the amount of eight notes, each for $25, given in part payment of the purchase price ($1,150) promised by the defendants to be paid to plaintiff for a Simplex Typesetting Machine, No. 2. G. H. Lombard, an expert machinist and inventor of this machine, was sent by the plaintiffs to close the contract with the defendants, who were printers and publishers of a newspaper at Monroe, N. 0.

<p>Appeal from Lyon, J., at the October Term, 1910, of DURHAM.</p> <p>The facts are sufficiently stated in the opinion by Mr. Justice Waller.</p>

Civil action to recover damages for personal injuries caused by alleged negligence on tbe part of defendant company.

S. Adams, J., at tbe August Term, 1910, of Ieedell. Tbis action is to recover damages for a false and fraudulent representation in the sale of land.

, at tbe November Term, 1910, of DUPLIN. Tbis is an action to recover damages for the killing of the plaintiffs intestate by the defendant. The plaintiff alleges that'his intestate, G. W. Boney, was in the employment of the defendant as engineer, and that he was killed on the main line of the defendant near South Rocky Mount, while on duty, at 2.30 o’clock A. M. of 6 November, 1907, by running into an open switch and coming in collision with another train.

<p>Appeal by defendant from Long, J., at tbe November Term, 1910, of MeckleNbueo.</p>

<p>1. Trusts and Trustees — Trust Funds — Wrongful Loan.</p> <p>A loan of a trust fund by a trustee to a business or manufacturing enterprise without order of court is wrongful.</p> <p>2. Same — Action of Debt — In Pari Delicto.</p> <p>A trustee who has wrongfully loaned his trust funds may maintain his action to recover the same.</p> <p>3. Same — Priorities—Borrower—Receivership—Rights of Creditors.</p> <p>A trustee who has loaned his trust funds to a manufacturing corporation, the funds being used by the latter to purchase raw material and in the payment of labor, can acquire no superiority of lien upon the assets of the corporation after insolvency or receivership.</p> <p>4. Trusts and Trustees — Trust Funds — Wrongful Loan — Subrogation.</p> <p>The right of subrogation does not exist in behalf of a trust fund which has been wrongfully loaned by a trustee to a corporation afterwards becoming insolvent.</p> <p>5. Same — Bankruptcy—Rights of Creditors.</p> <p>The cestuis qui trustent have their remedy against their trustee who has wrongfully loaned the trust funds, but neither they nor the trustee can recoup themselves for any loss at the expense of the other creditors of the borrower who has become insolvent and is in bankruptcy.</p> <p>6. Trusts and Trustees — Trust Funds — Wrongful Loan — Recoupment.</p> <p>The cestuis qui trustent cannot follow funds wrongfully loaned by their trustee as against the rights of other creditors of the bankrupt borrower.</p>

, at tbe January Term, 1911, of Guileobd. Civil action tried at January Term, 1911, of tbe Superior Court of Guilford County, bis Honor Judge Daniels presiding. Tbis issue was submitted: Is tbe defendant indebted to tbe plaintiff? If so, in wbat amount? Answer: Yes, in tbe amount of seven hundred dollars and six per cent interest from tbe time indicated in tbe complaint. From tbe judgment rendered the defendant appealed. The facts are stated in tbe opinion of tbe Court.

, at the January Term, 1911, of Guileoed. Civil action, for death of intestate caused by alleged negligence on part of defendant company, at January Term, 1911, of the Superior Court of Guilford County.

<p>Appeal by plaintiff from Long, J., at tbe October Term, 1910, OÍ MeCKLENBTJRG.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

, at tbe December Term, 1910, of MARTIN. Tbe action was to recover damages for negligent delay on tbe part of tbe defendant company in conveying a lot of macbinery shipped over defendant’s road.

<p>1. Arbitration and Award — Scope of Submission — Void Arbitration</p> <p>An award may not extend beyond the meaning and scope of the submission unless waived by the voluntary introduction of testimony or some other recognized method of enlarging the inquiry, and when thus extended is void as to the excess.</p> <p>2. Excess — Dependent Conditions.</p> <p>If the matters awarded in excess of the meaning and scope of the inquiry submitted are on matters not independent and sever-able, the effect may be to render the entire award invalid.</p> <p>3. Arbitration and Award — Courts — Favorable Consideration — Intent.</p> <p>Courts favor arbitrations, and will always put as liberal and comprehensive a construction upon agreements to submit as the apparent intention of the parties will allow.</p> <p>4. Arbitration and Award — Scope—Evidence.</p> <p>The plaintiff having purchased from the defendant two saw>mills, referred to respectively as the big and the little mill, had several disagreements respecting the terms of purchase, it having been agreed, among other things, that payments were to be made in sawing defendant’s lumber. The plaintiff contended that the defendant failed in its agreement to supply the lumber to be sawed, etc. Under agreement between the parties, the defendant took back and credited the plaintiff with the little mill, and proceeded under the original agreement as thus changed, but upon another disagreement submitted the matter to arbitration under v a writing stating all matters of difference and disagreement ■ growing out of the contractual and trade relations and dealings, and all matters incident thereto should be passed upon by the arbitrators and the award should be final and binding. Accordingly, an award was rendered, cancelling the plaintiff’s note given for the balance of the purchase price and giving defendant damages in a certain sum. Held, (1) the award was within the scope of the terms of the arbitration, and binding upon the parties; (2) it was also within the scope of the arbitration, under defendant’s own evidence, that all matters relating to the business dealings were to be considered, including those relating to the big as well as to the little mill.</p> <p>5. Arbitration and Award — Possible Conditions — Hypothecated Note.</p> <p>An award directing the cancellation of certain notes which the payee, a party thereto, had hypothecated with a bank for security for borrowed money is not void as impossible of performance, the repossession of the notes being possible by the payment of the note for which the security was pledged.</p> <p>6. Appeal and Error — Arbitration and Award — Partiality — Allegation — Too Late on Appeal.</p> <p>An award will not be set aside on appeal for partiality claimed on the part of an arbitrator when it is not pleaded or assailed in the trial court upon that ground.</p>

, at'January Term, 1911, of Durham:. Civil action beard on appeal from justice of tbe peace before his Honor F. A. Daniels, judge, and a jury, at January Term, 1911, of the Superior Court of Durham County.

, at tlie November Term, 1910, of DupliN. Held: and so adjudged, that in no view of the evidence was the plaintiff entitled to recover with respect to the forty-six acres, either the land or any interest therein, and charged the jury that, if they believed the evidence, they should answer the third issue, Yes.

<p>Appeal from Biggs, J., at the Spring Term, 1911, of Cleve-LAND.</p> <p>The plaintiffs seek to enjoin the defendant from turning its raw sewage into the French Broad River some eight miles above the intake of the Shelby Water Works System.</p> <p>Tbe defendant answers, admitting the material allegations of the complaint, and that it does empty the raw sewage from its mills and water-closets into said river, and claims prescriptive right to do so, and further avers that the water supply of the plaintiff town is not contaminated thereby. The plaintiffs demur to the answer. . The court sustained the demurrer and gave judgment against defendant, which excepted and appealed.</p>

, at the January Special Term, 1911, of LENOIR. The action was brought to recover damages for alleged negligence in frightening the feme plaintiff’s pony, whereby she was thrown from a buggy and injured. The usual issues were submitted and answered in favor of the plaintiff and her damages assessed at five hundred dollars. The defendant appealed.

<p>1. Processioning Act — Title—Term of Court — Procedure.</p> <p>When the issue of title is raised before the clerk of the court under the Processioning Act, Revisal, 326, an order of the clerk transferring the cause for trial to the Superior Court, in term, is a proper one.</p> <p>2. Deeds and Conveyances — Delivery—Title—Registration—Limitation of Actions.</p> <p>Tiae delivery of a deed to land passes title to be perfected as to subsequent purchasers and creditors by registration, as to which there is no limitation of time. Revisal, 980.</p> <p>3. Deeds and Conveyances — Unregistered Deeds — Titie—Evidence.</p> <p>An issue of title being raised in proceedings for processioning, and the cause properly transferred to the term of the Superior Court for trial, it is not necessary that a party claiming title under a deed should have had his deed recorded before the commencement of the action if he had theretofore acquired it, and it becomes evidence if recorded before or at the trial. Morehead v. Sail, 132 N. C., 122, cited and distinguished.</p> <p>4. Deeds and Conveyances — Registration Relates Back.</p> <p>Registration of a deed relates back to the date of its execution as between the original parties.</p> <p>5. Deeds and Conveyances — Prior Deeds — “Color”—Registration— Title — Evidence.</p> <p>The trial judge having excluded prior deeds in plaintiff’s chain of title, sufficient to show “color,” and the one directly to him, the latter for want of registration prior to the commencement of the action involving title, evidence of possession was not necessary to his taking a nonsuit and appeal.</p> <p>6. Deeds and Conveyances — Probate Sufficient — Certificates—Signature of Officials.</p> <p>It is not necessary to the validity of the probate of a deed that the signature of the name of the justice before whom it was acknowledged should be' recorded at the end, when it appears from the certificate as recorded and from the clerk’s adjudication thereon that his name appeared in the first line, and that in fact he properly took the acknowledgment.</p> <p>7. Deeds and Conveyances — 'Registration — Order Continuous — Registration — Corrections.</p> <p>The order of registration by the clerk is a continuous one, with which the register may subsequently comply upon inadvertently having omitted to copy the words it contained upon Ms book.</p> <p>8. Deeds and Conveyances — Probate — Registration Erroneous — Original Deed — Evidence.</p> <p>The original deed may be shown in evidence to correct an omission by the register of deeds of the signature of the justice of the peace before whom the deed was acknowledged.</p>

<p>1. Partnership — Contracts — Counterclaim — Breach of Covenant— Credit on Note.</p> <p>Defendant partnership, consisting of man and wife, were sued on a note given for the purchase of a livery business, the subject of the partnership. The husband claimed damages for breach of warranty in the purchase of a surrey'plaintiff subsequently sold him for the partnership, as a counterclaim. Selcl, the note being joint and several, the damages allowed on the breach of warranty to the husband in the judgment was a proper credit on the note.</p> <p>2. Damages — Contract—Breach of Warranty — Tort—Waiver.</p> <p>A counterclaim for damages for a breach of warranty arises out of contract and can properly be set up in an action thereon, and the defendant may waive the tort and sue in contract.</p>

<p>1. Equity — Injunction — Personal Property — Damages—Remedy at Law.</p> <p>Ordinarily, the equitable jurisdiction of the court cannot be invoked to restrain the sale or other disposition of personal property when an action at law may be maintained to recover the property, or when the act sought to be enjoined has been committed.</p> <p>2. Same — Insolvency.</p> <p>An allegation of defendant’s insolvency is generally necessary when a remedy by injunction is sought, except when dispensed with by statute, in cases where compensation in damages affords an adequate remedy.</p> <p>3. Equity — Injunction—Personal Property — Remedy at Law — Inadequacy.</p> <p>If irreparable injury can be shown by the commission of an act without proof of insolvency a court of equity will intervene by injunction in proper instances.</p> <p>4. Same — Note—Transfer Before Maturity — Innocent Purchaser— Guardian and Ward.</p> <p>When sureties on a guardian’s bond have become such upon agreement with the guardian that the securities taken for investments should remain in their hands for their protection, and it is shown by affidavits that the guardian had sold the lands of the ward and received a note for the deferred payments secured by a lien on the land,' which the defendant took from the guardian, and that it had not yet reached maturity, a remedy by injunction in favor of the guardian and sureties is proper to restrain the negotiation of the note by defendant until the hearing, so that it may not get into the hands of an innocent purchaser for value.</p> <p>5. Equity — Notes—Injunction—Trust Funds.</p> <p>A note received by a guardian for moneys invested for the ward are in the nature of a trust fund, and where there is evidence that a third person has induced the guardian to part with the note without a consideration before maturity, so as to raise serious issues to be passed upon by the jury respecting it, the matter comes within the peculiar province of a court of equity in its jurisdiction over trust funds, and an order restraining the negotiation of the note until the hearing is properly granted.</p> <p>6. Equity — Injunction—Notes—Third Persons — Transfer—Innocent Purchaser — Evidence.</p> <p>A restraining order upon defendant against the negotiation of a note will not be refused on the ground that the act anticipated has been committed, when it appears that it was given for moneys of a ward invested by the guardian which defendant wrongfully induced from him and transferred to the bank without suggestion that it was for value, particularly when the bank makes no claim to the note.</p>

, at tbe November Term, 1910, of DAVIDSON. The West Construction Company contracted with the town of Lexington to do certain work in grading-, paving, macadamizing and otherwise improving its streets, according to plans and specifications furnished, and to secure the faithful performance of the work in a proper and careful manner it executed to the town its bond, with the other defendant, .¿Etna Indemnity Company, as surety, by which it agreed to indemnify the town and save…

<p>Appeal from Cline, J., from Caldwell, January 13, 1911.</p>

, at the February Term, 1911, of ALEXANDER. Civil action, brought by plaintiff to recover damages from defendant for negligently setting fire to and burning the house of plaintiff, which was occupied by defendant as a tenant. These issues were submitted: 1. Was the plaintiff’s building destroyed by fire by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. What damage, if any, is the plaintiff entitled to recover of the defendant ?

<p>1. Master and Servant — Safe Tools and Appliances — Duty of Master.</p> <p>The master owes a duty to its employee to furnish him proper tools and appliances with which to do the work required by his employment.</p> <p>2. Same — Inspection — Simple Tools and Appliances — Notice of Defect — Promise to Repair.</p> <p>The distinction drawn with reference to inspection owed by the master between simple and complicated tools and implements which he has furnished his employees for the purpose of their work has no application when a defect, which approximately caused an injury, had theretofore been called to the master’s attention, and he had promised to repair it, and the injury occurred within a reasonable time thereafter.</p> <p>3. Same — Contributory Negligence — Questions for Jury.</p> <p>Upon evidence tending to show that a master had furnished his servant a ladder for the performance of his duty in cleaning out a vat at a tannery, which had become worn and rounded at the ends and was dangerous for the purpose, without slats or stops on the slippery bottom of the vat to keep the ladder from sliding, and that it was customary for ladders so used to have spikes to avoid this danger, contributory negligence, as a matter of law, is not shown by the continued use of the ladder by the servant after notifying the master of the defective ladder and under promise of the master to make it safe with spikes.</p> <p>4. Same — Assumption of Risk — Nonsuit.</p> <p>Upon a motion to nonsuit upon the evidence, the evidence must be taken in its most favorable light to the plaintiff, and upon evidence tending to show that the defendant had furnished an improper ladder for the servant to clean out vats within a tannery, and which caused the injury complained of subsequent to notice of the defect given the defendant, and while the servant contimied to do the work for a short time under the plaintiff’s promise to repair or make the ladder safe. Held, it was for the jury to say whether the servant continued in the service for an unreasonable time after the promise to repair had been broken, or that the danger in using the ladder was so obvious and imminent as to charge him with having assumed the risk, or with contributory negligence.</p> <p>5. Master and Servant — Defective Tools and Appliances — Duty of Servant.</p> <p>A servant who has been furnished a defective tool or appliance by the master with which to do his work is required to prevent any consequent injury by the exercise of ordinary care, and if his negligent use therein proximately causes an injury he is barred’of his recovery therefor.</p> <p>6. Master and Servant — Nonsuit—Defective Tools and Appliances— Safe and Unsafe Methods — Questions for Jury.</p> <p>The plaintiff was injured in the course of his duty as employee of defendant by using a defective ladder the latter had furnished him fpr the purpose of cleaning out a vat at a tannery, and there was evidence tending to show that plaintiff was a tall man and that the use of the ladder was unnecessary. Held, though the ladder proved' to be dangerous and caused damages in this instance, it will not be adjudicated as a matter of law that plaintiff should have climbed out of the vat, so as to sustain a motion as of nonsuit.</p>

<p>1. Carriers of Goods — Penalty Statutes — Title—Subject to Inspection — Party Aggrieved.</p> <p>When, by the contract or agreement between a vendor and vendee of goods, the goods are to be “received, inspected and weighed” by the vendee before any part of the purchase price is payable, the title does not vest in the vendee, and the vendor is the “party aggrieved” under the meaning of Revisal, sec. 2632, in an action against the railroad for delayed transportation.</p> <p>2. Same — Consignor and Consignee — Agreement — Public Policy— Notice to Carrier.</p> <p>In an action brought by the consignor for the penalty for delayed transportation by a railroad company of a shipment of logs under Revisal, sec. 2632, it appeared that the consignee was to “receive, inspect and weigh” the logs under a contract between the consignor and consignee, of which the carrier had no notice, Held, (1) By the terms of the agreement between consignor and consignee, the legal title to the logs did not pass to consignee until they were inspected and measured, there being no evidence of the amount of the purchase price; (2) the statute being passed in the interest of public policy for the prompt shipment of goods generally, it was not necessary to the recovery of the penalty that the carrier should have had notice of the agreement.</p>

<p>1. Evidence — Deposition — Presumptions — Regularity — Commissioner’s Relationship.</p> <p>The presumption is that a deposition has been properly taken when it appears thereon that it was taken by one named in the commission on the day and at the designated place; and a motion to quash the deposition will be denied when the motion is put upon the ground that the certificate of the commissioner was irregular in failing to state that he was of kin to neither party, the burden being upon the movant to show that he was.</p> <p>2. Corporations — Officers—Declarations—Hearsay Evidence.</p> <p>Declarations of officers of a corporation are competent as evidence against the corporation only when made in the line of their official duty and while discharging it in reference to a transaction for the company complained of; declarations otherwise made are hearsay and objectionable as evidence against the principal.</p> <p>3. Evidence — Expert Witness — Sawing Lumber — Cost.</p> <p>In an action to recover damages for cutting lumber for defendant in a certain county, laid as the difference between the contract price therefor and the cost of cutting, evidence as to the cost of cutting by a witness who has had experience in cutting lumber in that county under conditions like those existing at the location in question is competent, though the witness has had no experience in such work at the exact place.</p>

<p>1. Appeal and Error — Supreme Court — Retention of Cause — Superior Court — Final Judgment — Procedure.</p> <p>The Supreme Court having held on a former, appeal in this case that an investment or reinvestment of certain funds ordered by the Superior Court was void and not within the meaning of Revisal, sec. 1590, and that a hotel in the erection of which the funds had been invested be sold and the heirs to whom the funds belonged be reimbursed, preserving the legal rights of claimants or creditors therein until the sale and final hearing, upon the reports of commissioners appointed to the court below, an application by a former commissioner to have the Supreme Court consider and pass upon certain exceptions noted by him in the progress of the case in the court below as to the superiority of payment of his commissions will be refused, as the cause is in the court below and will not be considered here except on appeal from final judgment.</p> <p>2. Certiorari — Error of Counsel — Appeal and Error — Final Judgment — Former Record.</p> <p>A certiorari, except possibly under very exceptional circumstances, will not issue to bring up an appeal from the lower court on account of error of counsel. In this case it appearing that no final judgment has been entered, the petitioner may preserve his exceptions for review in the Supreme Court upon final judgment, and on this appeal the record in a former appeal may be again used.</p> <p>3. Appeal and Error — Execution, Stay of.</p> <p>The motion for certiorari being refused in this case, should petitioner appeal from final judgment of the court below, as pointed out. a stay of execution can be obtained under Revisal, 59S.</p>

<p>1. Appeal and Error — Certiorari—Judgment of Counsel.</p> <p>A certiorari will not be granted to bring up an appeal to the Supreme Court from final judgment in the lower court on the ground of laches of counsel, except, possibly in an exceptional case.</p> <p>2. Appeal and Error — Certiorari—Substitute-—Interlocutory Order— Former Record — Subsequent Appeal.</p> <p>A certiorari will not be granted as a substitute for an appeal from an interlocutory judgment. In tills case so much of the former record on appeal as is relevant may be used should the applicant for the certiorari appeal from a final judgment.</p>

<p>Appeal from Lane, J., at chambers, 28 April, 1911. From Rutherford.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

<p>1. Telegraphs — Death Message — Funeral Delayed — Evidence.</p> <p>Damages being claimed for a delayed telegram in an action against a telegraph company, the message reading, “Ma died today ; if any of you can come, will delay funeral,” it is competent for the plaintiff to show by his evidence that if the message had been duly received be would bave sent an answer requesting a delay of the funeral, wbicb would bave enabled bim to attend, and that tlie funeral would bave been thus delayed at bis request.</p> <p>2. Telegraphs — Death Message — Funeral — ■ Train Schedules — Evidence Sufficient.</p> <p>In an action upon a delayed telegram wherein it is alleged that damages were caused plaintiff in not being able to attend a funeral, where a long journey by rail was necessary, with certain connections, .it is sufficient evidence to go to the jury as to plaintiff’s ability to reach his • destination in time that he could have done so by regular schedule, and it was not upon him to prove that at the time the trains did not run behind, or that the connections were actually made.</p> <p>3. Telegraphs — Death Message — Funerals — Absence Explained— Evidence — Elements of Damage.</p> <p>Plaintiff having testified that if a message announcing a death had been duly delivered he would have taken train to destination, and would have attended the funeral, the failure to so attend being the ground for damages alleged, it is competent to show that he did not go when the message was actually delivered on account of the shock it gave his mother, when the purpose is to show the reason of his not going and not as an element of damages ; and harmless when it appears that it was then too late for him to have gone in time to attend the funeral.</p> <p>4-. Telegraphs — Relationship — Proof of Affection — Evidence — Measure of Damages.</p> <p>While damages will not be presumed from the relationship of aunt and nephew, in a suit upon a delayed telegram by the latter which proximately prevented him from attending the funeral of the former, and laid as the ground for the damages, it is competent to show the affectionate regard in which they held each other, and thus prove the damages alleged.</p> <p>5. Telegraphs — Death Message — Unreasonable Delay — “Mental Anguish” — Evidence.</p> <p>An unreasonable delay in the transmission and delivery of a message relating to a funeral, which causes a relative to be absent from the funeral, is sufficient for a recovery of damages for mental anguish in proper instances.</p> <p>6. Telegraphs — Death Message — Duty of Plaintiff — Contributory Negligence — Evidence—Instructions.</p> <p>In an action for damages sustained by being prevented from attending a funeral by the negligence of the defendant telegraph company in delaying a telegram announcing a death and asking if plaintiff would attend the funeral, an instruction is proper, when the grounds for damages are correctly laid, that if plaintiff, after receiving the message, made every reasonable effort to reach his destination in time, and by reason of the delay in the message and without fault on his part he could not do so, he is entitled to recover damages.</p> <p>7. Telegraphs — Death Message — Measure of Damages — CommonSense View — Instructions.</p> <p>The plaintiff suing for damages in not being able to attend the funeral of a relative, where the affectionate relation is shown to have existed, and which was caused by an unreasonable delay in a telegraph company of a message announcing a death, etc., a charge held correct in this case which differentiates the grief naturally caused by the death and that caused by not being able to attend the funeral, making the defendant only answerable in damages for the latter, and stating that the jury should apply “reasonable common-sense methods such as reasonable business men would apply” in awarding the amount of verdict.</p>

, at the J anuary Term, 1911, of Mecr:-LENBURG. The plaintiff, Joyner, held a policy of insurance on his store and goods in the Atlantic Eire Insurance Company. W. A. Stone, agent for the Virginia State Insurance Company, asked Mm to take instead a policy in that company, which he agreed to do, telling said agent to make out the policy exactly like the other, merely changing the name to Long & Joyner, as he had sold a half interest in the business to Long.

<p>1. Mortgages — Collateral—Foreclosure—Special Provisions — Vendor and Vendee — Payment with Services — Advances—Balances.</p> <p>The male defendant purchased a logging outfit from the plaintiff and mortgaged the. same to secure the purchase price, which was agreed to be paid for in service in a stipulated manner. As collateral to this transaction, the feme defendant and her husband executed to the plaintiff a mortgage on her lands. The plaintiff made advancements in provisions and money to male defendant from time to time to enable him to perform his contract, always in excess of the amounts earned by him under the contract, and eventually the latter surrendered to the former the property, with the exception of a horse which had died, and received credit on his purchase price, leaving a balance due the plaintiff in excess of two hundred dollars. The mortgage on feme defendant’s land provided that the first payment of two hundred dollars on the purchase price of the outfit should cancel her mortgage. Held, (1) The mortgage on feme defendant’s land, being collateral to the chattel mortgage given by her husband to secure the payment of the purchase price of the logging outfit, was entitled to no credits, under the circumstances, for the money earned by her husband under his contract of payment; (2) there is no evidence in this case that any payment had been made in exoneration of the mortgage on the feme defendant’s land. \</p> <p>2. Principal and Surety — Release—Indulgence—Agreement.</p> <p>Mere indulgence of the principal debtor, without any binding agreement to do so, will not release the surety.</p>

, at the October Term, 1.910, of Meck-LENBURG-. Civil action to recover value of plaintiff's trunk and its contents.

, at tbe May Term, 1910, of HeN-DERSON. Tbis is an. action to recover damages for tbe wrongful diversion of rain or surface water from tbe lands of tbe defendant to tbe lands of plaintiffs by means of a ditcb cut by tbe defendant. Tbe cause was tried at a former term of tbe Henderson Superior Court, and tbe appeal, wbicb was taken at tbat time, was beard and considered by tbis Court at Fall Term, 1909. See Roberts v. Baldwin, 151 N. C., 407.

<p>1. Banks — Shareholders — Individual Liability — Interpretation of Statutes — Contracts.</p> <p>The provisions of chapter 298, Public Laws 1897, that stockholders in- a bank “shall be held individually responsible . . . for all contracts, debts and agreements” thereof “to the extent of the amounts of the stock therein at the par value thereof in addition to the amount vested in such share,” creates an additional liability upon the stockholders as a matter of statute, and not by contract.</p> <p>2. Same — Married Women.</p> <p>Revisal, sec. 2094, restricting the executory contractual rights of married women, does not relieve her property from the liability imposed by the Public Laws of 1907, chap. 298, upon the stockholders of the bank, when she owns such stock in her own name and right, the liability under the Laws of 1907 being statutory and for the benefit of the bank’s creditors and not arising by contract.-</p> <p>1. Same — Trusts and Trustees.</p> <p>Under the express provisions of Public Laws 1893, chap. 471, funds in the hands of a trustee, and not the trustee, shall be liable when he holds bank stock for the cestui que trust, and when a certificate of bank stock was issued to the husband as trustee for his wife, and was so held up to the time of insolvency of the bank, without' evidence tending to show that she was not the beneficial owner, the husband, as trustee, cannot be adjudged individually liable. 'Laws 1907, chap. 298.</p> <p>4. Husband and Wife — Banks—Shareholders—Trusts and Trustees —“Proxy”—Evidence—Fraud.</p> <p>Certificates of bank stock, upon their face, appeared to be issued to a husband as trustee for his wife. The husband was the president of the bank, and it became insolvent. Held, the mere fact that the husband had acted in stockholders’ meetings as his wife’s proxy is no evidence of fraud, and will not, of itself, rebut the beneficial ownership being in the wife, when it appears upon the face of the certificate, so as to hold him liable under the statute. Laws 1907, chap. 298.</p>

, at tbe January Term, 1911, of McDowell. Civil action to recover damages for an alleged tort. 1. Was tbe plaintiff arrested and prosecuted as alleged in tbe complaint ? Answer: Yes. 2. Was tbe same without probable cause? Answer: Yes. 3. Was the same done witb malice? Answer: Yes. 4. Was tbe act of the agent of tbe defendant company, as alleged in the complaint, done wilfully or wantonly or in utter disregard-of tbe rights of tbe plaintiff ? Answer: Yes. 5.

, at tbe March Term, 1911, of BuNCOMBE. Civil action to recover damages for personal injury, alleged to have been caused by tbe negligence of tbe defendant. These issues were submitted: 1. Was the plaintiff, Calvin Eplee, injured by the negligence of the defendant Southern Railway Company, as alleged in the complaint ? 2. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? 3. What damage, if any, is the plaintiff entitled to recover ?

<p>1. Pleadings — General Order for Filing — Cause Excepted — Notice— Judgment Set Aside.</p> <p>When the trial judge has made a general order to file pleadings in causes returnable to that term, he may except any cause from the provision of the order upon notice to the parties; and when a party defendant, having a meritorious defense, has relied upon the general order and filed no answer to the complaint under the statute, and judgment lias been rendered by default at that term without notice to Mm, it is proper for the judge holding the subsequent term of the court to set the judgment aside.</p> <p>2. Same — Excusable Neglect.</p> <p>When a general order has been made to file pleadings, it is not sufficient notice to a party whose case was not excepted that judgment was signed in open court when his attorney was present, without calling to his attention the fact that the judgment was then being rendered, and without his knowledge of the fact.</p> <p>3. Damages — Release—Meritorious Defense.</p> <p>A valid release given to one of two joint tort feasors by the plaintiff in an action for damages is a good and meritorious defense for the other.</p> <p>4. Damages — Personal Injuries — Joint Tort Feasors — Release — Evidence — Nonsuit.</p> <p>There can be but one satisfaction recovered for injury arising from a joint tort; and when it appears that the plaintiff in his action for damages for a personal injury has released from liability one tort feasor, the release operates as a discharge of the other, and a motion for nonsuit should be allowed.</p> <p>5. Same — Master and Servant — Third Persons — Joint Participants.</p> <p>A switchman of a railroad company was struck by a pile of tan bark near the track while employed on a train which was being backed' for the purpose of leaving a car on defendant’s private siding, for the latter’s accommodation, and brought his action for damages alleging that the defendant was negligent in placing the tan bark so near the track as to cause injury to those on passing cars. Held, the railroad and the defendant were joint participants in the wrong as alleged, and being joint tort feasors, a release from liability for damages given by the plaintiff to the railroad operated to release the defendant.</p>

<p>1. Vendor and Vendee — Deceit — False Representations — Fraud— Evidence Sufficient.</p> <p>In defense of an action upon a note given for the purchase price of a horse, the defendant alleged that at the time of the sale the plaintiff made false and fraudulent representations as to the age, qualities and condition of the horse, and introduced evidence tending to show that the horse had glanders, that it was greatly weakened by disease and became worthless, while it had been represented as sound and in good condition, excepting a very slight distemper. Held, that the evidence was sufficient upon the questions of false warranty and deceit.</p> <p>2. Same.</p> <p>In an action for false warranty and deceit in the sale of a horse, it was held, that, in connection with other evidence tending to sustain the allegations, a letter from the vendor to the vendee, in reply to one from the latter, stating that the vendor had “a black horse seven years oldf a little thin, but mending fast,” which he would sell, but that he preferred the vendee to “come and look at him” before he would make a price, was relevant evidence to be considered by the jury upon the question whether there was a representation as to the age and qualities of the horse, and, if so, whether it was false and fraudulent.</p>

B. Jones, J., at the May Term, 1910, of MECKLENBURG. The plaintiff appointed James G. Dowd as their agent at Birmingham, Ala., for the sale of their vehicles, under a contract dated 14 January, 1907 (Exhibit A), by which it was provided that the agent should pay all freight and storage charges and taxes, insure tbe property in tbe name and for tbe benefit of tbe plaintiff, and sell tbe vehicles, in tbe usual course of business, to bona fide customers, for cash, at not less…

Appeal by plaintiff from Gouncill, J., at tbe December Term, 1910, of BuNCOMbe. This is an action to recover damages for personal injury, on tbe ground of negligence.

<p>1. Insurance, Fire — Principal and Agent — Standard Policy — Agents Within Authority — Interpretation of Statutes.</p> <p>Our statutory standard fire insurance policy providing that “in the matter relating to insurance,' no person, unless duly authorized in writing, shall be deemed the agent of this company,” does not impose on the insured the duty of showing that the agent who issued the policy had written authority to do so.</p> <p>2. Insurance, Fire — Standard Policy — Rules of Evidence — Interpretation of Statutes.</p> <p>The fact that a standard form of fire insurance has been adopted by statute does not change the rules of evidence applicable to a waiver by the insurer of the terms thereof upon which the policy shall have its inception and become operative.</p> <p>3. Same — Doubtful Terms.</p> <p>Whatever doubtful terms or expressions a statutory standard fire insurance policy may contain are to receive the construction favorable to the insured, this rule of interpretation not being changed by virtue of the statute.</p> <p>4. Insurance, Fire — Principal and Agent — Written Authority — Interpretation of Statutes.</p> <p>The stipulation in a statutory standard policy that “no person shall be deemed the agent of this company unless authorized in writing” is not contractual between the company and the insured ; but if otherwise, it could only relate to matters connected with the insurance after the policy has become a valid contract, and not the acts of the agent in issuing the policy.</p> <p>5. Insurance, Fire — Re-insurance—Policy Contracts — Consideration.</p> <p>The surrender of a fire insurance policy in one company by the insured and the relinquishment of his right to the “return premiums” furnishes a sufficient consideration to support the policy contract given by the reinsurer thereof upon these conditions; and while the reinsurer may not have received the “return premiums,” it has acquired the ¿advantage of new business by the arrangement.</p> <p>6. insurance, Fire — Principal and Agent — Premiums — Payment— Agent’s Debt.</p> <p>While ordinarily the insured cannot pay the premiums on his fire insurance policy by satisfying a private debt due him by the agent of the compapy, it does not apply when the insured has paid his premiums to the agent of the insurer in good faith, and the latter has satisfied his obligation due to another therewith, without the knowledge of the insured.</p> <p>7. Same — Evidence of Agency.</p> <p>N. was the general agent of the insurer, and A. its local agent. The insured failed. N. attempted to make an arrangement with the defendant insurance company, through its general agents, to reinsure the risks, with assurance to the said agents that he would take care of the policies of the old company, and they gave him the policy in suit to be sent to plaintiff, which was done. The plaintiff then returned the policy he held in the old company, and released his rights to the return premiums thereon. This arrangement was carried on without the knowledge of the insured, and it is held, N. was not the agent of the insured, but was the agent of the defendant insurance company, and that the latter was liable to the plaintiff for a fire loss which was covered by the policy thus issued by it.</p> <p>8. Insurance, Fire — Principal and Agent — Declarations—Evidence.</p> <p>The competency of the declarations of an agent of an insurance company rests upon the same footing as the declarations of an agent of an individual, and are properly admitted when they are of matters within the scope of the agency, and concern the very business about which the declaration is made.</p> <p>9. Insurance, Fire — Principal and Agent — Re-insurance—Nearness of Offices — Evidence.</p> <p>The plaintiff formerly held a policy of fire insurance in a company that failed, and alleges and introduces evidence tending to show that defendant insurance company reinsured the risk, in his action for loss subsequently sustained by him, on the subject-matter of tlie policy. Meld,, evidence that the two insurance companies had offices near each other in the same office building is entitled to little consideration, but not error to have admitted it under the facts and circumstances of this case.</p>

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

<p>Appeal by defendant from Ferguson, J., at tbe October Term, 1910, of Swaiit.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walicer.</p>

This action was brought originally to recover the possession of land, with rents and profits and damages for waste, with a prayer for the redemption of the land from a mortgage. The case was finally tried only upon the issue as to waste. On 27 December, 1894, S. A. Herring and his wife, Nellie A. Herring, executed a mortgage with power of sale upon the lands of the wife to John T. Gregory, to secure the payment of a note for $125 with interest.

<p>Removal of Causes — Time for Filing Pleadings — Exceptions — Waiver — implied Consent to Jurisdiction.</p> <p>The right of removal of a cause from the State to the Federal courts is waived by not excepting to an order extending the time to file pleadings, for in not excepting the defendant is deemed to have consented to the jurisdiction of the former court.</p>

<p>1. Drainage Act — Constitutional Law.</p> <p>Revisal, sec. 3995, ch. 88, subch. 2, providing a method for the assessment and apportionment of labor, etc., of those interested and receiving actual benefit from the repairing or keeping of a dam, canal or ditch, and also for payment by parties interested or benefited therein, etc., is constitutional and valid.</p> <p>2. Drainage Act — Noncompliance—Case Dismissed — Compliance— Another Act — Judgment—Estoppel.</p> <p>When damages have been sought in an action before a justice of the peace, Revisal, sec. 3995, ch. 88, relating to drainage districts, etc., and the action was dismissed because there had been no contract or agreement between the parties and the requirements of the act had not been met, the plaintiff is not thereby barred from proceeding under the act to have the damages assessed and from bringing another action therefor, as the former judgment does not bar the second one.</p> <p>3. Drainage Act — ■ Canal — Identification — Regarded as Under the Act — Appeal and Error — Procedure.</p> <p>In this action it is not distinctly stated, as it should be, that the canal in question had been laid out under the Drainage Act, but both parties having treated it as such, and the whole proceedings being under Revisal, 3995, concerning the ^apportionment of repairs of that kind, the case on appeal is considered as relating to a canal of that character.</p>

Appeal by plaintiff from order of W. J. Adams, J., vacating a restraining order, beard by consent at chambers in Raleigh, 16 January, 1911. From WayNe. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.

, at tbe January Term, ,1911, of Haywood. Tbis is an action instituted a number of years ago by certain of tbe beirs of James E. Love, deceased, against W. L. Hilliard, tbe tben sole surviving executor of tbe last will and testament of said Love, by which will certain lands of tbe said Love, of which tbe land in question is a part, were devised to bis executors to be sold- and tbe proceeds divided among bis beirs at law.

, at tbe May Term, 1911, of BuNCOMBE. Controversy, submitted without action, under section 803, Revisal, and beard before bis Honor, J. L. Webb, Judge, in May, 1911, wben and where it was properly made to appear that, on tbe .... day of March, 1911, tbe defendants contracted with tbe plaintiff for the purchase of $10,000 of Youngsville Township road bonds, to be issued under the authority of an act of tbe General Assembly of 1911, entitled “An act to provide good roads in…

, at the May Term, 1911, of DupliN. Civil action heard on case agreed. On the hearing it was properly made to appear that plaintiffs had contracted in writing to sell defendant an interest in a certain tract of land in said county, stipulating that a good title should be made and having tendered a deed for the property, in correct form. Defendant resisted payment, claiming that the title offered was defective.

H. Allen, J., at the January Term, 1910, of WaYNE. Civil action heard on appeal from a justice’s court, before his Honor, 0. H. Allen, J., and a jury, at January Term, 1910, Superior Court of Wayne County. The action was instituted by plaintiff to recover $199 due by contract. Defendant denied the indebtedness and set up a counterclaim for breach of contract of warranty on other sales of cheese.

Appeai from Councill, J., at tbe October Term, 1910, of BUNCOMBE. Civil action brought against the defendants for the alleged negligent killing of one W. H. Sigmon. 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.

, at the January Term, 1911, of Durham. Criminal action for assault with, intent, etc., beard on motion to, discharge defendant from imprisonment.

<p>Appeal by defendants from Long, J., at the December Term, 1910, of MeckleNbueg.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

, at the November Term, 1911, of Mitoi-iell. The defendants, Charles Rowe and Wesley Rowe, were indicted for the murder of Eilmore Rose. Wesley Rowe was acquitted and Charles Rowe was convicted of manslaughter. The killing was admitted by the defendant Charles Rowe, his plea being self-defense.

, at the Fall Term, 1910, of Watauga. This is an indictment against Daniel Yates for murder.

Criminal action, charging illicit sale of whiskey in the city of Asheville to one O. M. Laughter, tried on appeal fro-m the police justice, before his Honor, W. B. Qouncill, judge, and a jury, at Superior Court of Buncombe County, November Term, 1910.

, at the March Term, 1911, of BmtKE. The defendant was tried and convicted at March Term, 1911, of the Superior Court of Burke County, under section 3833, Revisal of 1905, upon the following bill of indictment: “The jurors for the State, upon their oaths, do present that Bob Hawkins, late of the county of Burke, on the 31st day of October, in the year of our Lord one thousand nine hundred and ten, with force and arms, at and in the county aforesaid, unlawfully, willfully,…

This is an indictment for the slander of an innocent woman under Revisal, sec. 3640. The exceptions are to the charge of tbe judge. He correctly defined tbe term “innocent woman” as used in tbe statute, and tben charged upon tbe burden of proof as follows: 1.

H. Allen, J., at tbe April Term, 1910, of WayNE. Tbis is an appeal by tbe Commissioners of Union County from an order of bis Honor retaxing tbe costs or fees due tbe solicitor in above case. Tbe following are tbe findings and judgment: 1.

, at tbe January Term, 1911, of New HaNover. Tbe defendant was convicted of murder in tbe first degree at tbe February Term, 1911, of New Hanover Superior Court. He was sentenced to be electrocuted, and appeals to tbis Court. Tbe .defendant offered no evidence. Tbat introduced on tbe part of tbe State tends to sbow: Tbat tbe defendant, J. C. Holly, was tbe proprietor of a hotel in tbe city of Wilmington, known as tbe Rock Spring Hotel.

Criminal action for murder. Tbe jury returned a verdict of guilty of manslaughter, and from judgment pronounced tbe prisoner appealed.