Volume 156 — North Carolina Reports

<p>Appeal by defendant from 0. H. Allen, J., at May Term, 1911, of Beaufort.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Cla/rh.</p>

, at tbe February Term, 1911, of Cueeituck. This is. an action to recover damages for personal injury. Tbe plaintiff alleges tbat be was injured by tbe negligence of tbe defendant on 7 August, 1906, while working at ber mill, and tbat the negligence consisted in a defect in tbe machinery. Tbe defendant denies negligence, and also denies that she was tbe owner of tbe mill or tbat she operated it.

<p>1. Tenants in Common — Partition—Appeal from Clerk — Judge’s Discretion — Appeal and Error.</p> <p>In proceedings under a petition for partition of lands, tbe action of tbe Judge in setting aside the report of the clerk for a partial division and ordering a sale, for the reason that he has found as a fact that the land cannot be fairly divided, is within his discretion, and is not reviewable on appeal.</p> <p>2. Partition — Tenants in Common — Actual Partition — Sale.</p> <p>Prima faeie, tenants in common are entitled to actual partition; but only when such partition can be made without injury to any of the parties. Revisal, 2512.</p> <p>3. Tenants in Common — Partition—interlocutory Orders — Final Decree.</p> <p>Until the decree of confirmation by tbe judge, the proceedings for the partition of lands are not final, but interlocutory, and rest in his discretion.</p> <p>4. Same — Rereference.</p> <p>Before the decree of confirmation, orders made by the judge in proceedings for partition, as to a part sale and part actual division, allotting a certain part of the lands to one of the petitioners, are interlocutory, and it is within his discretion thereafter and before entering the final order of confirmation to refer the matter to new commissioners under an order to sell the land for a division of the proceeds, having found that his former-order would not have been fair to all the parties interested.</p> <p>5. Partition — Appeal from Clerk — Different Judges — interlocutory Orders.</p> <p>When appeals from the clerk in proceedings for partition are made successively to different judges, a judge before whom comes a later appeal may set aside or modify a former interlocutory order, it not being required for that purpose that the same judge should have passed upon the former appeals.</p>

H. Allen, J., at August Term, 1911, of GRANVILLE. Civil action beard on case agreed.

, at May Term, 1911, of Beetie. This is an action, brought by tbe husband, to recover damages for criminal conversation with his wife. The plaintiff introduced evidence tending to prove the allegations of his complaint, and evidence to the contrary was introduced by the defendant.

<p>Appeal from Ward, at January Special Term, 1911, of WASHINGTON.</p> <p>Mrs. «Caroline B. Hilliard was the owner of a half interest in the lands set out in complaint, known as the Polly Garrett lands. On 13 February, 1885, Caroline B. Hilliard and her husband, J. P. Hilliard, executed a mortgage on said one-half interest to the defendant L. H. Hornthal and his copartner, L. Hornthal. The mortgage had the usual power of sale. L. H. Hornthal afterwards acquired the interest of his brother and comortgagee.</p> <p>After said mortgage was executed, the said Caroline B. Hil-liard, the owner of the one-half interest, died, leaving four children, tbe feme plaintiff being one, and therefore tbe owner by descent of a one-eigbtb interest in said lands.</p> <p>On 2 March, 1896, in default of payment, tbe mortgagees sold tbe land under power contained in the mortgage, at tbe courthouse, when L. P. Hornthal, son of L. H. and nephew of L. Hornthal, became the purchaser at $1,000, the mortgagees executing a deed to him dated 2 March, 1896. By deed dated 27 March, 1896, for a recited consideration of $1,000, L. P. Hornthal reconveyed the land to the two mortgagees, L. H. and L. Hornthal.</p> <p>The plaintiff brings this action to set aside the sale (claiming that it was fraudulent and void and that L. P. Hornthal purchased for the mortgagees), and for an accounting of rents and profits.</p> <p>The court submitted these issues:</p> <p>1. Does the defendant L. H. Hornthal hold one-eighth interest in the Polly Garrett tract of land mentioned in the pleadings, as mortgagee for the plaintiff? Answer: Yes.</p> <p>2. What is the amount now due on said one-eighth interest to the defendant on said mortgage? Answer: One-fourth of $3,182.14=$795.54.</p> <p>3. What is the net aggregate rental on said one-eighth interest since 2 March, 1896? Answer: $505.</p> <p>4. What is one-eighth value of timber sold by said defendant from said land? Answer: $518.75.</p> <p>5. Is said cause of action barred by the statute of limitations? Answer: No.</p> <p>There was a motion for new trial, which was refused. From the judgment rendered defendants appealed.</p>

<p>Mortgages — Deeds and Conveyances — Purchase Money — Registration — Priority.</p> <p>A deed made to lands by a vendor and contemporaneously executed with a mortgage back to secure the purchase price are regarded in law as concurrent acts, or tbe same act, tbe title vesting only a moment in the vendee and passing simultaneously into tbe purchase-money mortgagee. Hence, when the deed and mortgage are executed at tbe same time, and the vendee attempts to mortgage the land to a third person,- who has his. deed registered first, no priority can thereby be obtained over the purchase-money mortgagee.</p>

<p>1. Deeds and Conveyances — Reservation of Life Estate.</p> <p>A reservation of a life estate for himself and wife by the grantor in his deed to lands is valid, and the deed does not become effective until after his own and his wife’s death, though as to the latter the reservation cannot operate as a conveyance.</p> <p>2. Same — Tenant by Curtesy — Wife’s Possession.</p> <p>A deed to grantor’s daughter, reserving a life estate in himself, does not make the husband of the grantee a tenant by curtesy when he has issue born alive, etc., if the wife predeceases the grantor, the requisite of her possession of the lands being wanting; and the title to the land upon the death of the grantor passes directly to her heirs.</p> <p>3. Same — Guardian and Ward — Removal—Conflicting Interests.</p> <p>A father, guardian for his child, claiming as tenant by curtesy the rents and profits of lands to which his wife had not acquired possession or right of possession, and which had descended to his ward as heir at law, is such an adverse claimant to the rights of the ward as will entitle the latter to his removal. Rev., 1806.</p> <p>4. Deeds and Conveyances — Interpretation—Reservation of Life Estate — Repugnancy.</p> <p>In this case, construing the deed as a whole, there is no re-pugnancy therein apparent by reason of a reservation of a life estate in the lands in the grantor. Willdns v. Norman, 139 N. C., 41, cited and distinguished.</p>

<p>Appeal by defendant from O. E. Allen, J., at Spring Term, 1911, of TYRRELL.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

Appeal by plaintiffs from 0. II. Allen, J., at June Term, 1911, of Beaupobt. The plaintiffs in this action are Rena E. Braddy, who before her marriage was Rena E. Thomason and a daughter of Macon B. Thomason, and her husband, -E. A. Braddy; and the defendants are G-eorge I. Dail, trustee, Beulah Thomason, Jasper Thomason, Lawrence Thomason, Bonner Thomasson, and Louise Thomason, the last five being children of Macon B. Thomason, and under the age of twenty-one years.

<p>Appeal from J. 8. Adams, J., at March Term, 1911, of Halifax.</p> <p>Civil action tried on appeal from a justice’s court. Plaintiff sued on an instrument alleged to be a written contract bearing date 16 December, 1909, for tbe purchase of a gasoline tank with incidental appliances, at tbe price of $140. Tbe tank was shipped from Fort Wayne, Indiana, on 15 December, 1909, and arrived at Littleton, N. 0., some time in the latter part of the month, and was taken out of railroad depot by defendant, as he stated, for purpose of saving storage. Defendant having-denied liability, on issue submitted the court charged the jury that if they believed the evidence the plaintiff was entitled to recover the contract price, $140, etc. Verdict for same in plaintiff’s favor. Judgment, and defendant excepted and appealed, assigning errors chiefly in the rulings of the court on questions of evidence.</p>

H. Allen, J., at Spring Term, 1911, of TYRRELL. It appeared tbat in 1906 plaintiff borrowed of J. D. Overton, tbe intestate, a sum of money and to secure payment of tbe loan executed a mortgage on real property witb power of sale, etc.; tbat Overton died in 1908, and defendant, administrator, having made several efforts to obtain payment, proceeded to advertise tbe property for sale under tbe mortgage, tbe sale to take, place 17 January, 1910.

<p>Executors and Administrators — Removal of Causes — Action by Administrator — Venue.</p> <p>An. action by an administrator upon a life insurance policy of bis intestate is properly brought in the county where the administrator resides, not necessarily where the bond is filed, the addition of the words, “administrator, etc.,” being descriptive of his title or the capacity in which he sues (Revisal, secs. 424 and 421) ; and Revisal, sec. 421, makes a distinction between actions in which the administrator is sued, for then the action shall'be brought in the county where the bond is filed. Revisal, secs. 419, 421, have no application.</p>

H. Allen, J., at the Spring Term, 1911, of Hyde. This action is brought • to determine whether the relator Mann or the defendant Gibbs is a drainage commissioner in the Drainage District for Mattamuskeet Lake and the lands adjoining thereto.

, at January Term, 1911, of Pasquo-TANK. These issues were submitted: First. Was plaintiff’s boat and cargo damaged by the negligence of defendant railway company, as alleged? Answer: “Yes.” Second. What damage, if any, has plaintiff sustained? Answer: “Boat and cargo, $1,500.” In apt time defendants moved to nonsuit, which motion was denied and defendants excepted. From the judgment rendered the defendants appealed.

<p>1. Tender — Profert—Readiness to Pay — Suit—Payment Into Court.</p> <p>To constitute a valid tender, the party claiming its benefit must allege and show that since its refusal -be has always been ready to pay the same, and upon suit brought be must pay the money into court.</p> <p>2. Same — Verdict.</p> <p>The verdict of the jury rendered in an action upon a mortgage noté will not be affected by a tender of a larger amount made before the commencement of the action, which was refused and not kept good; for the refusal thereof left the matter open and at large, and the court could find the true amount.</p>

<p>Appeal by defendant from Ferguson, J., at April Term, 1911, of ObaveN.</p>

<p>1. Public Highways — ‘Bridges — Vehicles — Automobiles—Negligent Operation — Questions for Jury.</p> <p>In an action for damages for injury alleged to have been sustained because of the defendant’s negligence in running bis automobile over a bridge, without observing proper caution for plaintiff’s safety, overtaking plaintiff thereon and frightening his mules so that they became uncontrollable, throwing plaintiff to the floor of the bridge under their feet, and running his conveyance over him, there was conflicting evidence as to the speed of the automobile and the ability of defendant to slow up in time to avoid the injury: Hel$, in this case, the charge of the court was correct under Laws 1909, ch. 445, secs. 9, 10, 11, and 12, regulating the operation of moving vehicles in use on the highways ; (2) the case was almost entirely one of fact, and properly submitted to the jury.</p> <p>2. Public Highways — Bridges—Automobiles—Negligent Operation— Damages — Implied Notice.</p> <p>One driving an automobile along public highways and over bridges is liable for such compensatory damages as are proximately caused by his negligence in not exorcising proper care in looking out for horses, etc., thereon; and he is required to take notice that such machines are liable to scare them.</p> <p>3. Public Highways — Conveyances—Automobiles—Nuisance.</p> <p>It is not negligence per se for a person to use an automobile in traveling along public highways and across public bridges.</p>

Adams, J., at December Term, 1910, of Beaueobt. Civil action of trespass, involving an issue as to- title. On said issue as to title there was verdict for defendant, judgment, and plaintiff excepted and appealed.

, at June Term, 1910, of Carteret. This is an action to recover personal property under a chattel mortgage executed by Csesar James, who is dead. The property was seized under claim and delivery proceedings issued in this action, and delivered to the plaintiff, and sold by him. The defendants are the administrator of Csesar James and his grandson.

Appeal by defendant from Justice, Jat January Term, 1911, Of PASQUOTANK. Tbis is an action to recover damages for injury to household goods while in the course of transportation. The defendants are the Norfolk Southern Railroad Company and the Atlantic Coast Line Railroad Company.

<p>Appeal by defendant from Peebles, J., at May Term, 1910, of Geeene.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Allen.</p>

<p>1. Pleadings — Preparation—Discovery—Affidavits—Procedure.</p> <p>When the record or proceedings do not disclose tbe facts upon wbicb a motion is made to examine a defendant for tbe purpose of preparing a complaint in an action, tbe mover must show by affidavit sucb facts as will entitle bim to tbe order be asks, so tbat it may appear tbat it is material and necessary tbat tbe examination should be bad, and tbat tbe information desired is not already accessible to the applicant. Kevisal, sec. 866.</p> <p>2. Same — Materiality—Good Faith — Courts.</p> <p>The court is not bound to’order an examination of a defendant for tbe purpose of preparing a complaint, unless it is made to appear under oath of the mover that such an order is necessary, that the evidence sought to be elicited is material, and that the application is made in good faith.</p> <p>3. Pleadings — Preparation—Discovery—Place of Examination.</p> <p>An examination of defendant to discover facts necessary to be obtained in preparing a complaint must be made in the county of his residence. Revisal, sec. 866. The right of respondent to refuse to answer ineriminative questions touched upon.</p>

<p>1. Pleadings — Demurrer — Corporate Existence — Sufficient Averment.</p> <p>A demurrer to a complaint, in an action against the mater of a note, brought by a bank, an indorsee for value, which was entered upon the ground that the corporate existence of the plaintiff had not been alleged, will not be sustained when it appears from the averments of the complaint that the defendant had dealt with the plaintiff as if it had a lawful right to contract with him, and that he impliedly admitted its corporate existence by indorsing the note to it as acting in a corporate capacity.</p> <p>2. Pleadings — Demurrer—Notes—Default of Interest — Maturity— Demand — Evidence—Summons.</p> <p>In an action brought upon a note before its maturity under a provision that the note would be due and payable ten days after demand for payment of interest thereon due, a demurrer to the complaint will be denied when there are allegations that demand had been made for the payment of interest after default, which necessarily implies that the demand was made on the defendant, and that the same had not been paid; and it appears from an inspection of the summons, which it is proper for the court to make in such instances, that the stated period of time had elapsed before the institution of the action.</p> <p>3. Pleadings — Interpretation—Cause of Action — Demurrer.</p> <p>The allegations of a pleading will be liberally construed in favor of the pleader for the purpose of ascertaining its meaning and determining its effect, with a view 'of doing substantial justice between the parties (Eevisal, sec. 495), and if it can be seen from its general scope that a party has set out a cause of action or defense, though inartificially stated, he will not be deprived of it upon demurrer.</p> <p>4. Same — Motion.</p> <p>There should be at least substantial accuracy in the averments of pleadings, and a compliance therein with the essential rules in the science thereof, so that the real issues may be evolved from the controversy; and should there be any formal defect in this respect which renders the pleadings unintelligible, or should the precise nature of the charge or defense be not apparent by reason thereof, the remedy is by motion (Bevisal, sec. 496) and not upon demurrer, except in certain cases in which the pleading can only be cured by amendment.</p> <p>5. Pleadings — Interpretation—Demurrer—Frivolous—Practice.</p> <p>The courts do not encourage the practice of parties moving for judgment upon an answer or demurrer upon the ground that they are frivolous, and if it raises a question, whether of law or fact, fit for consideration or discussion, a judgment upon that ground will be denied.</p>

<p>Appeal from Justice, J., at January Term, 1911, of Pas-quotaNK.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walicer.</p>

<p>Appeal from Ferguson, J., at April Term, 1911, of Pitt.</p> <p>Civil action to recover damages for personal injury. These issues were submitted:</p> <p>1. Was plaintiff injured by the negligence of defendant company, as alleged? Answer: Yes.</p> <p>2. Did the plaintiff by Ms own negligence contribute to Ms injury? Answer: No.</p> <p>3. Notwithstanding plaintiff’s negligence, could the defendant company by the exercise of reasonable care have avoided said injury? Answer: Yes.</p> <p>4. What damage, i£ any, is plaintiff entitled to recover? Answer: $6,300.</p> <p>From the judgment the defendant appealed.</p>

, at May Term, 1911, of Pitt. Civil action, brought to recover damages for an alleged breach of contract in the sale of cotton and cotton seed. These issues were submitted: 1. Is the defendant indebted to the plaintiff on account of the cotton, as alleged; if so, in what amount? Answer: No. 2. Is the defendant indebted to the plaintiff on account of the cotton seed, as alleged; if so, in what amount? Answer: No. From the judgment rendered, plaintiff appealed.

<p>Appeal from Ferguson, J., at March Term, 1911, of Pitt.</p> <p>The plaintiffs, children and heirs of Robert A. McLawhorn, deceased, bring this action against the feme defendant, Bettie Harris, only child and heir of L. Francis McLawhorn, deceased, to set up and establish a parol trust as against said Francis McLawhorn in the lands described in the pleadings, claiming to own one undivided half of the lands in common with the said Francis. His Honor submitted these issues:</p> <p>1. Did L. F. McLawhorn take title to said land from J. P. Elliott in trust to hold one-half of the same for the benefit of plaintiffs? Answer: No.</p> <p>2. At the time of the purchase of the land described in the complaint by L. F. McLawhorn, did he agree to take and hold said land as trustee for himself and the children of R. A. McLawhorn? Answer: No.</p> <p>The plaintiffs moved for a new trial. Motion overruled. The plaintiffs excepted and appealed from the judgment rendered.</p>

<p>1. Insurance, Life — Application—Misrepresentations—Proof of Loss —Statements—Prima Facie Case — Evidence—Questions for Jury.</p> <p>A statement made in a proof of loss after the death of the insured by her father and next of kin, beneficiary under the policy sued on, that the insured had had pneumonia prior to her application for the policy, and in contradiction of her representation in her application that previously thereto she had not had it, is primia facie evidence only of the falsity of her representations, leaving it for the plaintiff to satisfy the jury, upon all the evidence, that she did not have it prior to her application.</p> <p>2. Same — Mistake—Weight of Evidence.</p> <p>When the proof of loss contains a statement that would invalidate the policy of life insurance sued on, if true, that the insured had had pneumonia prior to the time of her application, contrary to her representations therein made, the statement made in the proof of loss affects only the weight of the evidence for the jury to consider, when there is also evidence that the statement was made under a mistake.</p> <p>3. Same.</p> <p>The insured, in her application for life insurance, represented that she had not previously had pneumonia. After her decease, the beneficiary, in his proof of loss, made a statement that she had had pneumonia previous to her application: Held,, evidence sufficient to go to the jury in rebuttal of the prima facie case made out for the defendant in the plaintiff’s suit upon the policy, that plaintiff was mistaken and was speaking from hearsay and not from his personal knowledge, and that the insured had not had pneumonia, as stated in her application.</p> <p>4. Evidence — Prima Facie Case — Weight of Evidence — Questions for Jury.</p> <p>The party against whom a prima facie case is raised by the law is not bound to overcome it by the greater weight of the evidence, but may combat it before the jury, when there is conflicting evidence, as being insufficient evidence of the ultimate fact under the circumstances of the case.</p> <p>5. insurance, Life — Misrepresentations—Disease—Witnesses, Non-expert — Harmless Error.</p> <p>The defense in an action to recover upon a life insurance policy being tbe misrepresentation of the insured that she had not had pneumonia previous to her application for. the policy, exceptions to testimony of nonexpert witnesses that they did not know whether or not she had suffered from • this disease, upon the ground that only physicians could testify on the subject, will not be sustained, as their testimony would not tend to establish the fact either way. . ■ .</p> <p>6. Insurance, Life — Misrepresentations — Medical Examiner — Evidence.</p> <p>The defense to an action to recover upon a life insurance policy being that the insured had falsely’ represented in her application for the policy that she had never had pneumonia: Held, competent, as evidence, for the company’s medical examiner to testify that he recommended the risk upon his own examination and diagnosis of her physical condition, as tending to rebut the allegation that she titd had pneumonia, for the fact that he had thus passed her was some evidence that she had not . had the disease.</p>

, at June Special Term, 1911, of EDGECOMBE. This is an action brought by the administratrix of Joe Pettit, to recover damages.

Appeal, from Garter, J., at April Term, 1911, of Hebteobd. Civil action to recover damages for alleged forcible trespass accompanied by assault on tbe person. It appeared that summons in tbe action returnable to Superior Court of Hertford County was served on defendant 1 October, 1909.

, at April Term, 1911, of Edgecombe. This is a civil action brought by the plaintiff as surviving partner against the administrator and the heir at law and son of John W. Sherrod for a settlement of the copartnership estate, which consisted of a large number of tracts of land and a large quantity of personal property, used principally in farming operations.

<p>Appeal by plaintiff from Ward, J., at June Term, 1911, of MaetiN.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court . by Mr. Justice Walker.</p>

There was allegation, with evidence, on the part of plaintiff, tending to show that defendant company, in the construction of its roadbed, had wrongfully diverted surface waters from their natural watershed, “caused same to flow into Patrick’s Branch or Hardee’s Run,” rendering same “insufficient and incapable of discharging said waters by reason of the increased servitude put upon them by said wrongful act, thereby causing said branch or run to overflow and pond back its…

, made at New Bern, in May, 1911, continuing a restraining order to the hearing. Civil action heard on motion to dissolve a restraining order, issued to prevent the cutting of timber by defendant, on lands alleged to belong to plaintiff. There was judgment continuing the restraining order to the hearing, and defendant excepted and appealed.

, at November Term, 1910, of WlLSON. Tbis is an action to recover $164.66, alleged to be due for nine cars of lumber sold by tbe plaintiff to the defendant. Eight cars of the lumber were shipped by rail to the mill of the defendant, and one ear was shipped elsewhere. The principal controversy between the parties was as to the quantity of lumber in the shipment of eight cars, the defendant claiming it was 10,669 feet less than the quantity claimed by the plaintiff.

<p>Principal and Agent — Husband and Wife — Goods Sold and Delivered — Feme Covert — Sign—False Representations — Questions for Jury.</p> <p>In an action to recover from the husband the purchase price of goods sold and delivered, there was evidence tending to show that plaintiff’s salesman made the sale in the store of the wife, ' with her name properly displayed by sign reading “M. Schultz,” in accordance with the provisions of Revisal, sec. 218; the transaction was conducted personally with the husband, L. Schultz; and the evidence was conflicting as to whether the plaintiff’s salesman thought the husband’s name was Max and was led to believe that he was the M. Schultz to whom the goods were sold, and not to his wife, Mamie; that the salesman made the order to Max S., and was corrected so as to make it read to M. Schultz; that the impression was caused by the representations of defendant, as an inducement to the trade, reasonably relied upon by the plaintiff, that the sale was being made to the husband; that the husband appeared to have full control or management of the store: Held, an instruction was erroneous that fixed the liability upon the husband unless the jury found that he informed the salesman at the time that he was the agent of his wife, or unless the salesman ascertained that fact from the sign displayed; (1) the burden of proof was on the plaintiff to show that the husband, by false representations reasonably relied on, had imposed himself upon the company or its agent as M. Schultz, and assumed that essential portions of plaintiff’s evidence should be accepted as true; (2) it ignored defendant’s evidence, that about five months previous he had informed the managers of plaintiff corporation, at its home office, that he was acting merely as agent for his wife.</p>

<p>1. Executors and Administrators — Removal of Administrator — Adverse Interests.</p> <p>In proceedings by tbe beir at law to remove tbe administrator of tbe estate of tbe intestate, duly appointed, on tbe ground of an adverse interest, it appeared that intestate’s estate consisted largely of lands, with but little personal property, and tbe adverse interest insisted upon was tbe claim of plaintiff that tbe administrator owned jointly with tbe estate certain mules, bogs, farming implements, etc., to wbicb be was claiming tbe whole. There was no evidence of bad faith or fraudulent concealment, and the defendant bad permitted an inspection and appraisement of tbe property by tbe plaintiff, bad since held it intact, and bad given a solvent and sufficient bond for plaintiff’s protection: Seld, there was no evidence of an adverse interest wbicb would warrant the removal of tbe administrator. Revisal, sec. 38. (Simpson v. Jones, 82 N. C., 323, cited and distinguished.)</p> <p>2. Same — Judgment—Questions of Law — Appeal and Error.</p> <p>When tbe lower court rests its judgment as to tbe removal of an administrator for an interest adverse to tbe intestate’s estate solely upon a question of law, it is reviewable on appeal.</p>

<p>Executors and Administrators — Clerk’s Appointment — Next of Kin Illiterate — Discretion of Clerk.</p> <p>Two brothers and two sisters, as next of kin of deceased, filed their renunciation of administration on the estate with the clerk of the court, the elder brother requesting the appointment of a certain designated - person as administrator and the younger brother requesting only that an administrator be appointed, without designating any particular person. The clerk appointed the person designated by the elder brother, and the younger brother applied subsequently for his removal, without designating any grounds therefor otherwise than may appear under the above stated facts: Held, (1) there was no legal ground shown for the removal of the administrator thus appointed; (2) if no renunciation or recommendation had been made, it was within the discretion of the clerk to appoint any one of the next of kin; (3) as none of the next of kin in this case could read or write, it would have been proper for the clerk to refuse to appoint either one of them.</p>

, at March Term, 1911, of LeNoiR. This action is to recover damages on account of the death of the plaintiff’s intestate, which it is alleged was caused by the negligence of the defendant. The defendant denies negligence, and alleges that the intestate was guilty of contributory negligence.

<p>1. Appeal and Error — Case—Counter-case—Settlement—Failure to Request Judge.</p> <p>Upon tbe service of a counter-case on appeal it is the duty of tbe appellant to immediately request tbe judge to appoint a time and place to settle the case under Revisal, sec. 591, and upon bis failure to do so the ease of tbe appellee becomes the case on appeal.</p> <p>2. Same — Sheriff’s Returns — Evidence, Prima Facie — Printing Record.</p> <p>The appellee, having disagreed to the appellant’s statement of the case, had his counter-case served, as appears by the return made by the sheriff thereon. Both cases were then filed in the clerk’s office, but’ by an error which the clerk explained, only the appellee’s ease was certified to the Supreme Court. Upon an affidavit of appellant’s counsel it was contended that no counter-case had been served: Sold, (1) the return of the sheriff upon the counter-case is prima, facie evidence that the counter-case had been served as therein stated, and it cannot be contradicted by a single affidavit; (2) as the appellant had failed to reguest the judge to settle the case under the statute, the counter-case is the case on appeal, which not having been certified and printed, under the rule, the judgment below is affirmed, on motion of appellee.</p>

<p>Appeal and Error — Injury to Person — Execution on Person — Insolvent Debtor’s Oath — Habeas Corpus — Valid Discharge — Final Judgment — Bond to Stay Execution — Bail.</p> <p>Judgment being rendered by a court of competent jurisdiction against the defendant in a. certain sum for an injury committed to person of the plaintiff — a tort — who appealed without giving bond to stay execution: Held, (1) upon the return of execution against defendant’s property unsatisfied, an execution upon the person may issue (Revisal, 625, 727) ; (2) filing an inventory of his property, etc. (Revisal, see. 1905), will not exempt the defendant from arrest; (3) the execution can only be stayed by giving a bond securing the judgment (Revisal, 598) ; (4) the writ *of habeas corpus cannot be successfully sued out (Revisal, 1822, subsec. 2; (5) to obtain the benefits of the provisions of Re- . visal, 1930 to 1933, the defendant must show a valid discharge from imprisonment; (6) bail cannot be given to release the defendant pending his appeal in lieu of the bond to stay execution.</p>

H. Allen, J., denying plaintiff’s motion for restraining order, beard at chambers in Washington, June, 1911. The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.

<p>Notes — Joint Makers — Payment by One — Indorsement to Maker— Cancellation — Implied Promise to Pay — Limitations of Actions.</p> <p>The payment of a note by one of two of the makers, with indorsement thereof without recourse to himself, cancels the note, and entitles him to recover one-half the amount thereof upon an implied promise to pay by the other obligor; and when there is no promise made not to plead the statute of limitations, action should be brought within three years or recovery will be barred.</p> <p>Walker, J., dissenting; Brown, J., concurs in the dissenting opinion.</p>

, at February Term, 1911, of CRAVEN. Civil action to recover damages for breach of contract concerning the sale of timber and cutting and logging same.

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

Appeal by plaintiff from Peebles, J., at March Term, 1911, of LENOIR. This action is to recover damages for injury to the horse and wagon of the plaintiff. The plaintiff alleges that the injury occurred on 16 December, 1909, and was caused by the negligence of the defendant, which is. denied. The wagon was loaded with apples, and the injury occurred about 8 o’clock a. m., at the first crossing after leaving the depot at Kinston.

<p>1. Negotiable Instruments — Holder in Due Course.</p> <p>In order to establish, the position of a holder in due course of a negotiable instrument so as to shut off counterclaims and defense otherwise available, it must be shown that the instrument is complete and regular on its face, and that title thereto was acquired in good faith, for value before maturity, without knowledge or notice of fraud or other impeaching circumstance; and, except when payable to bearer, the indorsement must be proved when it is denied.</p> <p>2. Same — Indorsement—Pleadings—Burden of Proof.</p> <p>When, in an action upon a negotiable instrument claimed by the plaintiff as an indorsee for value, in due course, without notice of any infirmity of the instrument, the answer denies the validity of the indorsement, the burden is upon the plaintiff to show that the instrument had been indorsed and that otherwise he was a holder in due course, in order to shut off the defense arising on the testimony, that it was procured from the makers by fraud or deceit.</p> <p>3. Same — Evidence—Instruction—Expression of Opinion by the Court — Appeal and Error.</p> <p>Wlieu the validity of the indorsement of a negotiable instrument sued on. by the indorsee is denied by the answer, and the only evidence is that introduced by the plaintiff, which fully states the necessary matters to show that he is a holder in due course, it is correct for the judge to charge the jury to return a verdict for the plaintiff if they find the facts to be as testified to by him; but reversible error for the trial judge to remark in the presence of. the jury that if the verdict was for the defendant he would set it aside, for this is an expression of opinion upon the credibility of the evidence forbidden by statute.</p>

, at March Term, 1911, of LeNoib. ■ This is a civil action to recover on a policy of insurance on a piano. These issues were submitted to the jury: 1. Did the defendant insure the piano of the plaintiffs, as alleged in the complaint? Answer: Yes- 2. If so, what sum, if any, are plaintiffs entitled to recover of the defendant for its destruction by fire, if it was destroyed ? Answer: $248.75. Destroyed by fire. 3.

<p>Appeal by plaintiff inora. Peebles, J., at May Term, 1911, of New HaNOveb.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

<p>Appeal by defendants from George W. Ward, J., beard by consent August Term, 1911, of DupliN.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. GMef Justice Ciarle.</p>

<p>Appeal by plaintiffs from Peebles, J., at March. Term, 1911, of LENOIR.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

Appeal by petitioner from Whedbee, J., in habeas corpus proceedings, from WayNE, beard Y June, 1911, at Goldsboro. The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.

, at February Term, 1911, of Wake. This is a controversy, submitted without action, to determine the amount due plaintiff’s intestate as one of the executors of Florence P. Tucker, wbo died 15 December, 1909, leaving a last will and testament appointing Tbomas B. Womack and Cary K. Durfey executors.

, at March Term, 1911, of JohN-STON. Summary proceeding in ejectment. The question of possession was not at issue, as defendant had surrendered possession. At the close of the evidence the court instructed the jury to return a verdict for the plaintiff for $163.50, $150 balance due as rent .and $13.50 amount due for pillows. It is admitted that is the sum due plaintiff by defendant for rent and towels.

H. Allen, J., at May Term, 1911, of Beau-EORT. Civil action to recover damages for alleged breach of contract on part of defendant. On issues submitted, there was verdict in favor of plaintiff, assessing Ms damages at $1,000. Judgment on the verdict, and defendant excepted and appealed.

, at April Term, 1911, of New HaNOVER. Civil action, beard on motion made in tbe cause. From judgment entered, plaintiff Eiley & Co. excepted and appealed.

, at February Term, 1911, of Wake. Civil action to recover damages for personal injuries caused by alleged negligence of defendant in failing to keep* its streets in proper repair. On tbe issue as to negligence, there was verdict for defendant. Judgment on verdict, and plaintiff excepted and appealed.

Appeal front Peebles, J., at August Term, 1911, of WayNe. Civil action beard on demurrer to complaint. There was judgment overruling the demurrer, and defendants excepted and appealed.

, at Spring Term, 1911, of Hebteobd. Two actions were brought and by consent are consolidated. Tbe action is brought to recover for tbe wrongful conversion of certain sawmill logs cut from tbe Gatlin land, by Tully Gatlin, who transported them to tbe water at Sumner’s Landing and there sold them to tbe defendant, Luther Holloman, for $84.07, admitted to be tbe value .of tbe logs at tbe water.

<p>Appeal from Coolee, J., at May Term, 1911, of OumberlaND.</p> <p>Partition proceedings. From the judgment entered by. the judge the plaintiffs appealed.</p>

, at April Term, 1911, of Wake. This action is brought to recover two legacies, one for^ $3,333.33 and one for $1,000, devised by defendant’s testatrix to plaintiffs.

, and a jury, February Term, 1911, of CUMBERLAND. This was a civil action for tbe alleged negligent billing of tbe plaintiff’s intestate near tbe defendant’s freight depot at Hope Mills, N. 0., on tbe first day of July, 1903. Tbe court submitted these issues: 1. Was tbe plaintiff’s intestate, B. L. Autry, killed by tbe negligence of tbe defendant? Answer: Yes. 2. Did tbe said B. L. Autry, by bis own negligence, contribute to bis death? Answer: No. 3.

, at November Term, 1910, of HaR-NETT. These were two separate civil actions, each action being for the recovery of damages for mental anguish alleged to have been caused by the delay and nondelivery of telegrams relating to the death of one Herndon H. Kivett. One suit was in the name of Z. T. Kivett, father of the deceased, and the other in the name of H. H. Kivett, twin brother of the deceased. By consent, the two cases were tried together.

, at April Term, 1911, of Wake. This action, is to recover damages for the negligent destruction of property of the plaintiff by fire.

• Appeal from Whedbee, J., at April Term, 1911, of Wake. Tbis is an action to recover damages for personal injuries. Tbe plaintiff alleges tbat be was an employee of tbe defendant, and tbat be was injured negligently while performing a duty in obedience to an order of bis superior. Tbe defendant admitted tbat tbe plaintiff was in its employment, but denied negligence on its part, and alleged tbat tbe plaintiff was injured by bis own negligence.

PetitioN to rebear on appeal from Lyon, J., at November Term, 1911, of Geanville. Tbis case was decided at tbe last term, and is now before tbe Court upon a petition to rebear.

<p>Appeal by defendant from Whedbee, J., at April Term, 1911, of WAYNE.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

, at February Term, 1911, of Cumbee-LAND. Tbis is an action to recover possession of personal property. Tbe plaintiff is designated in the summons and complaint as the “Theo. A. Kochs Company,” and there is no allegation that the plaintiff is a corporation, and, if a partnership, the names of the partners are not given. The plaintiff alleges in his complaint the execution of certain notes by one Andrew Jackson, payable to the Theo.

<p>Appeal from Nash from a decree of Qoolce, Jbeard 28 February, 1911, at chambers.</p> <p>This is a suit for a writ of mandamus, brought by certain citizens of the city of Rocky Mount to compel its board of aldermen to elect a recorder, as required to do by the Laws of 1899, eh. 209, sees. 24, 25, 26, and 27, in order that a recorder’s court may be established and organized according to the terms of the said act, which sections provide as follows:</p> <p>Sec. 24. That a special court for the trial of misdemeanors is hereby established, and said court shall be known as the “Recorder’s Court of Rocky Mount.”</p> <p>Sec. 25. That said recorder’s court shall be a court of record, and shall be presided over by a recorder, who shall be a bona fide resident and a duly qualified voter of said city, and shall be elected by the board of aldermen of said city at the meeting to be held on the Thursday next -succeeding the election for mayor and aldermen, to be held on the first Monday in May, one thousand nine hundred and seven, and biennially thereafter ; and such recorder shall hold his said office for a term of two years from the date of his said election and until his successor shall be duly elected and qualified. Pending such election and so long thereafter as the board of aldermen shall fail to fill said office by the election of a recorder, the mayor of said city shall be ex officio recorder, and as such shall exercise every power conferred upon and perform every duty imposed upon such recorder by this act.</p> <p>Sec. 26. That whenever the board of aldermen of said city shall, in accordance with the provisions of the preceding section, elect a recorder, said board shall likewise proceed to elect a vice recorder, who shall possess the same qualifications and hold office for the same term as the recorder; and said vice recorder shall enter upon and discharge the duties of the office of - recorder whenever the recorder, on' account of sickness, absence from the city, or other good and sufficient cause, shall be unable to do so, and he shall for the time be clothed with every power conferred by law upon the recorder: Provided, that so long as the mayor of said city shall be ex oficio recorder the mayor pro tempore' shall be ex officio vice recorder, and as such shall be clothed with every power conferred by law upon such vice recorder.</p> <p>Sec. 27. That the recorder’s court shall hold daily sessions in the courtroom of the municipal building in said city, and shall possess every power in the regulation and ordering thereof usually possessed by other courts of record in like eases.</p> <p>The defendants have never complied with the requirements of this act nor taken any steps to do so, contending that it was left entirely to their discretion whether to fill the office of recorder or permit the mayor to act as recorder, and the mayor pro tem. as vice recorder, and they thought it best for the interests of the community to continue the old régime. The Judge of the .Superior Court, Hon. Charles M. Cooke, did not agree with defendant’s counsel in this construction of the act, and adjudged that the writ of mandamus be issued. Defendant excepted and appealed.</p>

<p>Wills — Executors—Declarations—Distributees—Several and Independent Interests — Evidence.</p> <p>The interests of the executor and distributees under a will are several, distinct, and independent, and in an action to set aside the will for fraud and undue influence, his declarations, made against the validity of the instrument, whether before or after the will has been probated or he has qualified thereunder, are incompetent except in so far as they may affect his qualification as executor.</p>

<p>Reference — Findings of Facts — Exceptions—Trial Judge — Deliberation — Some Evidence — Appeal and Error.</p> <p>When exceptions are made to the findings of fact of a referee, .it is the duty of the trial judge to deliberate and decide upon each exception and draw his own conclusions from the evidence thereon, using his own faculties in ascertaining the truth of the matter; and when he otherwise acts upon the report, and sustains the referee’s findings merely because there is some evidence to support them, it constitutes reversible error.. The different rule of the Supreme Court on appeal discussed by Walker, J.</p>

, beard at chambers in Goldsboro, 22 July, 1911. Tbis is a suit for mandamus to require tbe defendants, except defendant Green, to meet witb tbe plaintiffs and to elect tbe seventh member of tbe Board of Road Commissioners of Selma Township. Tbe complaint alleges that after M.' 0.

, at April Term, 1911, of Mooke. Tbis action was brought to compel tbe specific performance of a contract to convey land, and was beard below upon a demurrer to tbe complaint, wbicb alleged: “That on 15 October, 1910, tbe defendant, for a valuable consideration, contracted and agreed in writing witb tbe plaintiff to make, execute, and deliver to tbe plaintiff, bis beirs and assigns, a good and sufficient deed of conveyance to tbe tract of land described in tbe complaint,…

Appeal bj plaintiffs from Justice, J., at January Special Term, 1911, of Lenoib. Tbe plaintiff brings tbis action to recover damages for pond-ing water on ber land, located on South-West Creek.

, at March Term, 1911, of LeNoie. Civil action. The defendant demurred to the complaint. The court rendered judgment sustaining the demurrer. Plaintiff appealed.

, at April Term, 1911, of Edge-combe. Civil action to'recover damages for breach of contract in failing to deliver a certain amount of cotton.

, at April Term, 1911, of New HaNOVER. Civil action to recover damages for an alleged breach of a written contract for delivery of cotton. Tbe evidence on part of plaintiff tended to show that on 9 September, 1909, defendant entered into a written contract with plaintiff, agreeing to deliver 100 bales of cotton at Trenton, N. C., between 15 September, 1909, and November, at the price of 12 cents per pound, and plaintiff agreed to accept same and pay the stipulated price.

, at April Term, 1911, of Edgecombe. Civil action to recover damages for a breach of contract in failing to deliver 75,000 pounds of lint cotton as per written contract, which provided, “That in event party of the second part shall fail to deliver said cotton or any part thereof, according to this contract, then the party of the first part shall be entitled to recover at law, and shall recover damages for such failure from the parties of the second part, his executors or…

, upon case agreed, at chambers in Murphy, 16 September, 1911. This case was brought to test the validity of certain bonds issued by the plaintiff for the purpose of extending or enlarging its water and sewerage system and of making street improvements, and was beard in the court below upon the following ease agreed: 1.

Appeal by defendants from Justice, Jat June Term, 1911, of ANSON. This was a petition to sell land to make assets, filed by the executor of Elijah D. Huntley against his heirs at law. The sole question presented was the construction of the will as set out upon the following facts agreed: “Elijah D. Huntley died orí 13 December, 1902, leaving a will, two of the items of which are as follows: “First.

II. Allen, J., at February Term, 1911, of Chatham. Civil action for slander. These issues were submitted to the jury: . . . . . ■ . . . 1. Did tbe defendant speak to the plaintiff, in the presence and bearing of Willie J. Bright and others, the words set out in paragraph 3 of the complaint, or words of the same substance? Answer: Yes. 2.

H. Allen, J., at February Term, 1911, of Moore. Tbis is an. action to recover damages for tbe destruction by fire of the lumber plant of the plaintiff, on Sunday, 29 May, 1910. At tbe conclusion of tbe evidence the defendant moved for judgment of nonsuit, which was denied, and the defendant excepted.

R. Allen, J., rendered in chambers, by consent, in 1910. Civil action instituted in Superior Court of Union County for the purpose of obtaining judgment to apply the proceeds of certain lands described in the complaint to the payment of a judgment in favor of the plaintiff against W. F. Rhea, deceased.

H. Allen, J., at October Term, 1911, of BLADEN. Civil action to recover damages done to a puncheon of molasses shipped over defendant’s line, and for penalty in failing to settle the claim within the time required by law, heard on appeal from a justice’s court. The jury rendered the following verdict:. 1. In what sum, if any, is defendant indebted to the plaintiff by reason of the loss of a puncheon of molasses ? Answer: $47.20. 2.

<p>Appeal by defendant from 0. II. Allen, J., at August Term, 1911, of G-uileoed.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.</p>

<p>Appeal from O. H. Allen, J., at June Term, 1911, of Lee.</p> <p>The action was brought to recover damages for unlawful ejection from defendant’s train. Appropriate issues were submitted to which there is no exception.</p> <p>There was a verdict and judgment for plaintiff, from which defendant appealed.</p>

, at April Term, 1911, of New Haw-OVER. Civil action to recover damages for physical injury caused by alleged negligence of defendant. There wás evidence on the part of plaintiff tending to show that on 2 February, 1909, plaintiff, an employee of defendant, doing business as the Wil'mington Steam Laundry, was injured by the negligence of defendant in failing to provide a safe place or appliance for doing her work and in failing to give same proper supervision.

, at May Term, 1911, of Alamaece. Tbis is an action to recover damages for injury to stock transported by the defendant railroad.

<p>Appeal- by plaintiff from Daniels, J., at February Term, 1911, of Guilfobd.</p> <p>Tbe facts are sufficiently stated in tbe opinion of jfcbe Court by Mr. Chief Justice Clark.</p>

<p>Deeds and .Conveyances — Limitation of Actions — Fraud or Mistake —Executors and Administrators.</p> <p>In an action involving title to lands, tbe defendant claimed by successive conveyances from a devisee to whom the lands had been devised by her father as 100 acres to be cut off in a certain manner from given lines; and plaintiff, who was executor of the devisor, claims 8 acres thereof adjoining his own land as being in excess of the 100 acres devised and which had been surveyed and conveyed under metes and bounds in his absence. The defendant pleaded the twenty, ten, seven, and three years statutes of limitations, which the plaintiff resisted on the ground of mistake (Kevisal, 395, 6) : Held, (1) if the plaintiff’s defenses were available against the devisee, it were not so against the subsequent grantees; (2) the statute runs from the discovery of the frhudj “or when, it should have been discovered in the exercise of ordinary care”; and as it was the duty of plaintiff, as executor, to have laid off the land to the devisee and put her in possession, and as he could, by a simple calculation from the deed, have discovered that the description embraced 108 acres, and as for twenty years the various owners of the land had cultivated up to the boundaries, the statute had become a bar to the action.</p>

<p>1. Courts, Justices’ — Action on Contract — Nonresident Defendants —Bona Fide Residents — Motion to Dismiss — Procedure.</p> <p>For a justice of tbe peace to acquire jurisdiction in an action upon contract against a nonresident of tbat county there must be other bona fide resident defendants; and when it appears tbat a nonresident of tbe county has been thus sued with other defendants, who are residents, but not bona fide parties, he may subsequently move to dismiss tbe action in tbe justice’s court and again on appeal in tbe Superior Court.</p> <p>2. Same — Pleadings.</p> <p>In an action upon contract for the sale of lumber at a certain sum, brought before a justice of tbe peace, it was alleged and claimed tbat it was delivered to H. & T. for one L., a nonresident, to whom it was duly shipped; that L. had received it and plaintiff bad been paid through H. & T., excepting a certain balance, the amount in controversy: Held, the action should have been dismissed upon the motion of L., he being a nonresident of the county, and it appearing that IT. & T. were not bona fide defendants. Kevisal, secs. 1449, 1460.</p> <p>Allen, J., dissenting.</p>

These are actions, one by the plaintiff, W. 0. Saunders, and the other by his wife, Columbia Saunders, against the defendant for trespass and assault. They were consolidated and tried together, resulting in a verdict and judgment for the plaintiffs, from which the defendant appealed. As the parties differ materially as to the nature of the evidence, it becomes necessary to state it at some length, all of it having been introduced by the plaintiffs.

, at March Term, 1911, of Pender. Tbe summons in this action was issued on 23 August, 1907. Tbe plaintiff filed bis complaint on 18 December, 1907, in wbicb be alleged: 1.

<p>1. Appeal and Error — Taxing Costs — Reference—Questions of Law.</p> <p>A ruling of the Superior Court judge that as a matter of law he is precluded by a former judgment from taxing the cost of a reference, is reviewable in the Supreme Court.</p> <p>2. Same — Procedure—Interpretation of Statutes.</p> <p>■ A former judgment appealed from and affirmed by tbe Supreme Court, “that tbe’ defendants do recover against tbe plaintiff and tbe surety on his prosecution bond tbe costs of this action,” does not preclude a subsequent trial judge from taxing tbe cost of z-eference “against either party or apportioning it among tbe parties in Ms discretion” (Revisal, sec. 1268) ; and, in this case, it is ordered that at a subsequent term tbe trial judge pass on tbe question and tax tbe cost of tbe reference in accordance with tbe statute.</p>

, at February Term, 1911, of Guil-ford. Tbe action is brought to recover damages for tbe negligent killing of Herbert H. Burgess, a fireman in tbe employment of tbe Southern Eailway Company, tbe lessee of tbe defendant, at Selma, N. 0., 29 April, 1909. These issues were submitted to tbe jury: 1. Was tbe intestate1 of tbe plaintiff killed by tbe negligence of tbe lessee of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2.

, at June Term, 1911, of Edge-•combe.. Civil action to enforce a lien for special assessments.

, at March Term, 1911, of LeNoir. Civil action to recover for alleged negligent killing of intestate by defendant. At the close of plaintiff’s, evidence, on motion, the court ordered a nonsuit, and plaintiff excepted and appealed.

<p>1. Religious Denominations — Congregational—Individual Churches —Management—“Conference.”</p> <p>In a congregational religious system or denomination, as distinguished from a connectional one, the association of churches is purely voluntary for the purpose of joining their efforts for missions and similar work, having no supervision, control, or governmental authority of any kind over the individual congregations, which are absolutely independent of each other.</p> <p>2. Same — Appointment of Pastor.</p> <p>A congregational association of churches has no authority to appoint a pastor for one of its churches to supersede the one whom that church has regularly appointed.</p> <p>3. Same — Trustees at Will — Notice—Interpretation of Statutes.</p> <p>' A church has authority to appoint a “suitable number” of its own trustees under our statutes for the pijrpose of acquiring and holding church property, “from time to time and at any time . . . in such manner as such body, etc., deem proper,” and remove them or any of them at will, and while the congregational regulations of the denomination with which the church in question is affiliated has provided a notice to be' given for the trial of “offenses,” it does not apply to the election or removal of trustees nor take from the church its rights when in conflict with the statutes. Revisal, secs. 2610, 2671.</p> <p>4. Same — “Majority Rule” — Interference.</p> <p>A church of the congregational system having the right under our statutes to remove its trustees or any of them at will, and having duly and regularly' elected certain trustees to supersede several theretofore elected, holds the church property through those trustees later elected, and has the right to the use of the church for religious services without molestation from the trustees removed, or from its conference; especially so, in this case, where the trustees as newly constituted were a majority, even counting the deposed ones.</p> <p>Allen, J., dissenting.</p>

<p>Appeal by defendant from Justice, J., at Spring Term, 1911, of Chowan.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Ghief Justice Gla/rk.</p>

<p>Appeal from Lyon, J., at May Termj 1911, of RowaN.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

, at May Term, 1911, of ObaNGE. This is an action to recover damages for mental anguish, caused, as the plaintiff alleges, by the negligence of the defendant in the delivery of a telegram, notifying him of the death of his sister, Jennie Rains, which prevented him from attending her funeral. Jen,nie Rains lived at Franklinsville, in Randolph County.

<p>1. Statute of Frauds — Debt or Default of Another — Parol Promise— Original Liability.</p> <p>Tlie liability of a promisor to answer, “upon special promise, the debt, default, or miscarriage' of another person” under the statute of frauds, is governed by whether the promise creates an original obligation or is collateral to it and merely superadded to the promise of another to pay the debt, he remaining liable, for in the latter instance the promisor is not liable unless there is a writing to that effect, whether the promise is made at the time the debt is created or not.</p> <p>2. Same — Credit.</p> <p>The obligation o'f a promisor to answer for the “debt, default, or miscarriage of another” is original and binding if made at the time or before the debt is created, when the credit is given solely to the promisor or to both.</p> <p>3. Same — Express Promise — Consideration—Evidence.</p> <p>To make the oral special promise binding upon the promisor to answer for the debt, etc., of another, the promise must be express and not solely implied by law, and founded upon a consideration such as the immediate and pecuniary benefit of the promisor in the transaction, as in instances of joint principals, or the release of the original debtor, or harm or benefit passing between the promisor and the creditor, or to pay out of a particular fund of the debtor in the hands of the promisor; but if the funds are not actually in his hands and he does not receive them, his promise is not personally binding.</p> <p>4. Statute of Frauds — Debt or Default of Another — Consideration Expressed — Implication.</p> <p>A written promise to answer for the debt, etc., of another need not express the consideration, and it may be established by parol.</p> <p>5. Statute of Frauds — Debt or Default of Another — Parol Promise— Liability — Definition.</p> <p>A parol promise to answer for the debt, etc., of another which is not enforcible is defined to be “an undertaking by a person not before liable, for the purpose of securing or performing the same duty for which the party for whom the undertaking is made continues liable.” Sheppard v. 'Newton, 139 N. C., 535, cited and approved.</p> <p>6. Statute of Frauds — Debt or Default of Another — Evidence of Debt — Deceased—Transactions and Communications.</p> <p>In an action upon the special promise of the deceased, against his administrator, for goods sold and delivered to another, it is competent for the plaintiff to imove the indebtedness of such other person by his verified account and other competent evidence, as such would not involve evidence of transactions and communications with a deceased person, prohibited by statute, but to recover of the estate of the deceased, the promise to answer for the debt must be shown in a manner not prohibited by the statute of frauds.</p> <p>7. Statute of Frauds — Debt or Default of Another — Promise—Running Accounts — Specific Occasion — Evidence.</p> <p>In an action against a promisor to recover on an account for goods sold and delivered, there was testimony by a witness, an employee of the plaintiff, that about the time of the sale of the last item the plaintiff told him not to let the debtor have any more goods without the written order of the promisor; that the debtor had no credit: Held, evidence that the debtor had credit prior to that time, and a general statement made by the witness that the goods had been theretofore sold on the credit extended the promisor must be accompanied by evidence of something said or done by the promisor authorizing the extension of credit, to have any weight.</p> <p>8. Statute of Frauds — Debt or Default of Another — Promise—Insufficient Evidence.</p> <p>In an action to hold an alleged promisor liable for a running account of goods sold to another, evidence that the promisor told the plaintiff to let the debtor have goods and he would see that they were paid for, without anything to show that goods were , sold the debtor at that time, should not be construed as prospective and retrospective, so as to include goods sold before and after that time.</p> <p>9. Same — Declarations.</p> <p>Evidence of a parol declaration of a promisor to pay the debt of another, in an action upon the promise, that the promisor had „ told the plaintiff that the debt was all right, is not sufficient to make the promisor liable.</p> <p>10. Evidence — Running Account — Book Items.</p> <p>In an action upon a running account, the items appearing upon the ledger and day-book of the plaintiff are mere declarations in his own interest, and as such are incompetent when standing alone and unsupported by proper evidence to make them competent.</p> <p>Walker, J., dissenting; Hoke, J., concurring in dissenting opinion.</p>

, at Spring Term, 1911, of Davie. This action is to recover tbe purchase price of certain lumber, which the plaintiffs, M. J. Hendricks and wife, Emma G. Hendricks, alleged they sold to the defendant. On 23 December, 1905., the plaintiffs and defendant entered into the following contract : North CAROLINA — Davie County.

<p>1. Deeds and Conveyances — Contracts to Convey — Deed in Escrow —Purchase Money — Payment—Evidence—Questions for Jury.</p> <p>A suit upon a contract to convey lands, with a deed placed in escrow to be delivered upon the payment of the balance of the purchase price, with conflicting evidence upon a point at issue as to whether the deed was to be inoperative if the purchase money was not paid in full within a certain time, presents a question for the jury.</p> <p>2. Issues Submitted — issues Tendered — Appeal and Error.</p> <p>There is no reversible error in refusing proper issues tendered when those submitted by the trial judge were sufficient to enable the parties to present every phase of the controversy.</p> <p>3. Deeds and Conveyances — Contracts to Convey — Encumbrances— Title — Pleadings—Evidence.</p> <p>In an action brought to enforce a contract to convey lands, presenting an issue as to whether the plaintiff offered to pay the balance of the purchase money if the defendant would clear the property of liens, which he was obligated to do, it is competent for the plaintiff to put in evidence the complaint as well as the answer, when the relevant parts of the answer otherwise would not have been clear.</p> <p>4. Deeds and Conveyances — Contracts to Convey — Purchase Money —T ender — Waiver.</p> <p>The refusal by defendant of plaintiff’s offer to pay the balance of the purchase money for lands which the former contracted to convey is a waiver of a formal tender thereof.</p> <p>5. Deeds and Conveyances — Contract to Convey — Clear Title — Absence of Warranty — Purchase Money — Encumbrances—Equity —Judgment.</p> <p>An agreement made by the vendee of lands to take a deed without warranty is not a waiver of his right to demand a clear title, and he is not required to take the land with liens thereon, but may insist upon their cancellation before he pays the purchase money and takes the deed; and where their payment can be made and the liens discharged, the courts may direct the payment of a sufficient part of the purchase money to the holders of the encumbrances, though they are not parties to the suit; or may authorize the vendee to pay them off on the failure of the ■ vendor to remove them, and reimburse himself out of his deferred payment of the purchase price.</p>

, at May Term, 1911, of Ibedell. These issues were submitted without objection: 1. Were plaintiff’s mules and wagon injured by the negligence of the defendant, as alleged in the complaint ? Answer: Yes. 2. Were the mules and wagon injured by the contributory negligence of the plaintiff’s driver, as alleged in the answer? Answer: Yes. 3. What damage, if any, is the plaintiff entitled to recover? Answer: . The court rendered judgment for defendant, and plaintiff appealed.

<p>1. Railroads — Master and Servant — Safe Place to Work — Evidence —Questions for Jury.</p> <p>The plaintiff, a brakeman on defendant railroad company’s train, demanded damages from the company in this action for an injury to his foot, which was mashed by the revolving wheel of an engine to a train upon which his services were engaged, and introduced evidence tending to show negligence in that the defendant furnished an old engine with a dangerous step and one placed too high up for safety in boarding a moving train, that defendant permitted a sprinkling hose to drip water on the step and form ice there, making the step more dangerous; that defendant did not instruct him, an inexperienced hand, in the discharge of his duties; that it was necessary for plaintiff to use this step in the performance of his duties; that he had been instructed to use this step, and had done so with the knowledge of the conductor, and that instruction had been given to another employee to remove the ice which had formed on the step, which had not been done, and that the ice was not seen by him in attempting to board the engine at night while running three or four miles an hour at a station: Held, the case was properly submitted to the jury upon the question of negligence and contributory negligence.</p> <p>2. Railroads — Master and Servant — Safe Place to Work — Assumption of Risks.</p> <p>The doctrine of assumption of risks has no application where an employee of a railroad 'company is injured in the discharge of his duties, proximately caused by defective ways or appliances furnished by the company which his employment requires him to use.</p> <p>3. Defective Steps — Negligence.</p> <p>A step to an engine or tender without sides thereto is a defective appliance.</p> <p>4. Appeal and Error — Objections ancf Exceptions — Jury—Time for Consideration — Discretion of Trial Judge.</p> <p>An exception that the jury considered the issues in an action for personal injury only twenty minutes before rendering their verdict will not be considered on appeal, the matter resting in the discretion of the trial judge to set aside the verdict or to send the jury back to reconsider their verdict, when it appears to him that there was misconduct on the part of the jury or a contemptuous or flippant disregard of their duties in giving consideration to the issues.</p>

H. Alien, J., heard at chambers, by consent, as of the March-Term, 1911, of PasquotawK.

Aetjeal from Ferguson, J., at March Term, 1911, of Pitt. This was a suit for the balance due on a contract for the construction of a building. ‘ The contentions of the parties appear in the pleadings. There was a verdict and judgment for the plaintiff, and the defendant appealed to this Court. This issue was submitted: 1. Was the building completed according to contract ? Answer: Yes.

Appeal by defendant from Ferguson, J., at' Spring Term, 1911, of Pamlico. There was verdict for the plaintiff, judgment thereon, and defendant excepted and appealed.

<p>Appeal by plaintiff from O. II. Allen, J., at May Term, 1911, of Dare.</p>

<p>Appeal by plaintiff from Ferguson, J., at March Term, 1911, of Pitt.</p>

<p>Appeal by defendant, Mollie E. Morton, from Ward, J., at tbe November Term of Cbaven.</p>

Appeal by plaintiff from 0. II. Allen, J., at February Term, 1911, of UNION. These issues were submitted: 1. Was tbe plaintiff injured by the negligence of tbe defendant ? Answer: Yes. 2. If so, did the plaintiff contribute to bis injury? Answer: Tes. 3. What damage, if any, did plaintiff sustain? From the-judgment rendered the plaintiff appealed.

<p>Appeal by defendant from April Term, 1911, of Guilford.</p>

, at May Term, 1911, of AlamaNCE. Civil action, brought to recover on certain policies of insurance issued by defendant. These issues were submitted to the jury: 1.

<p>Appeal and Error — Certiorari—Appeal Dismissed — Assignments of Error — Printing Brief.</p> <p>Case docketed and dismissed under Rule 17, the appellant moving too late for writ of certiorari, and not having made out his assignments of error or grouping his exceptions, or filing his brief in time.</p>

<p>Appeal from 0. H. Allen, J., at August Term, 1911, of Guilford.</p> <p>Civil action to recover damages for personal injuries, caused by alleged negligence of defendant.</p> <p>There was verdict for plaintiff. Judgment on tbe verdict, and defendant excepted and appealed.</p>

<p>Appeal by defendants from 0. II. Allen, J., at Spring Term, 1911, of Gates.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walicer.</p>

<p>Prisoner’s Declarations — Caution—Evidence—Reversible Error.</p> <p>Upcm a preliminary bearing before a justice of tbe peace upon a charge of larceny, tbe magistrate asked tbe defendant if be desired to be a witness, wbo responded in tbe affirmative, and was “sworn” with tbe other witnesses. It appeared that be was an ignorant young negro, and without counsel: Held, tbe failure of tbe magistrate to caution him that be was not required to testify and tbat bis refusal to do so would not prejudice him, renders bis declarations incompetent as evidence. Eevisal, see. 3194.</p>

, at January Term, 1911, of Pitt. The defendant was indicted for larceny of some tin, and a count in the bill for receiving the tin knowing it to have been stolen. There was a verdict' of guilty of receiving the tin knowing it to have been stolen, and judgment imprisoning defendant for four months, to be worked on the roads of Pitt County, from which judgment the defendant appealed to the Supreme Court.

<p>Appeal by defendant from Joseph ,8. Adams, J., at February Term, 1911, of WajkREN.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.</p>

<p>Appeal from Oline, J., at July Term, 1911, of New HaN-0VER.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

<p>Appeal by defendants from Peebles, J., at May Criminal Term, 1911, of LeNOIe.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

, at February Term, 1911, of Samp-sou-. The defendant is charged in the indictment with, the crime of murder, and was convicted of manslaughter. Cleveland Bronson, a witness for the State, gave the following account of the killing, which was corroborated by several witnesses: “The prisoner was teaching school at the colored Herring Sehoolhouse in Lisbon Township. I was passing by there at the morning recess. It was raining when I got there.

<p>Appeal by defendant from 0. U. Allen, J., at July Special Term, 1911, of Durham.</p>

. Appeal from Ferguson, J., at September Term, 1911, of RICHMOND. Tbe defendant is charged in the indictment with the crime of assaulting Maggie Hasty, who was about 12 years of age, with the intent to commit rape, and upon conviction was sentenced to a term of five years in the State’s Prison.

<p>Appeal . from Daniels, J., at September Term, 1911, of RowaN.</p> <p>Indictment for abduction of Clara Bell Gibbs under section 3358, Revisal. There was a verdict of guilty. Motion for new trial overruled. The defendant was sentenced to the State’s Prison, from wbicb sentence she appeals.</p>

, at February Term, 1911, of GbaN-ville. Indictment for murder. At tbe conclusion of tbe testimony, tbe solicitor made formal announcement that tbe State would not ask for conviction of murder in tbe first degree. Tbe court hereupon charged the jury and verdict was rendered, “Not guilty of tbe felony and murder charged in tbe bill of indictment, but guilty of manslaughter.” Judgment on tbe verdict, and tbe prisoner excepted and appealed.

<p>Appeal from W. J. Adams, Jr., at May'Term, 1911, of EORSTTH.</p> <p>Criminal action for selling liquor in violation of the prohibition law. The defendant was convicted in the recorder’s court, and upon appeal to Superior Court was again convicted, and appealed to the Supreme Court.</p>