Volume 157 — North Carolina Reports

<p>1. Wills — Devises—Defeasible Fee — Deeds and Conveyances — Purchase.</p> <p>A testator bequeathed certain personalty to several named beneficiaries, as to each specifying, “to him and his lawful heirs begotten of his body, dying without such, to return” to certain designated persons “or their lawful heirs”; and also devised and bequeathed “the balance of my land and negroes to be equally divided between” J., C., and T., with provision that if “they all should die without such heirs, to return to my brother and sister”: Held, J., C., and T. took a defeasible fee in the land, determinable at their death without lawful issue, and could convey no greater interest therein.</p> <p>.2. Wills — Devises—Defeasible Fee — Life Estate — Limitations of Actions.</p> <p>A devise of lands terminable upon the death of the devisee “without lawful issue” is a life estate upon the happening of the contingent defeasible event, and the statute of limitations does not begin to run against the remainderman in fee until the life estate falls in.</p> <p>3. Wills — Devises—Defeasible Fee — Devisor’s Title — Identification —Evidence.</p> <p>In an action brought by the heir at law of the remainderman to recover lands devised to his ancestor, evidence is sufficient as tending to show that the title to the lands in dispute was in the devisor, when the will itself shows he claimed the fee, and the testimony of a witness was that when he first knew the lands he was about five or sis years old and the devisor cultivated them, and that the description of the lands in the will embraced the locus in quo, which he identified and described, and that upon the death of the- devisor the devisee took possession of and cultivated the land, and stated that his title was “only good for life,” with other evidence that there was a defect of the fee-simple title in him.</p> <p>4. Evidence-^ — Lands—Acts of Ownership — Age of Witness — Weight of Evidence — Questions for Jury.</p> <p>When a witness, testifying as to acts of ownership of one having claimed the title to lands in dispute, says that at the time he was five or six years old, the weight of his testimony is for the jury to determine.</p> <p>5. Nonsuit — Evidence—Questions for Jury.</p> <p>In this case there was sufficient evidence to be submitted to the jury upon the question as to whether the plaintiffs were the heirs at law of J. S., under whom they claimed certain lands, the title to which was in dispute, and therefore a motion to nonsuit upon ■ the evidence on that ground was improperly sustained.</p>

<p>1. North Carolina Railroad — Location—Judicial Notice — Rights of Way — Powers.</p> <p>Tbe courts will take judicial notice of the fa.ct that the North Carolina Railroad is a great public highway, running from Golds-boro to Charlotte through Rowan County; that it belongs to a (/Mdsi-puhlic corporation chartered in 1849 by an act of 1;he General Assembly, having full power of eminent domain, with provision that where land is not condemned for a right of way within a certain time, the corporation acquires a right of way 100 feet on each side the center of the track.</p> <p>2. Rai I roads — Easement—Fee—Reverter.</p> <p>A railroad corporation does not acquire the fee simple to the land covered by its right of way, but only an easement therein, which would revert to the owner of the fee relieved of the burden of the easement should the railroad be discontinued.</p> <p>3. Deeds and Conveyances — Warranty—Breach—Railroads—Easements — Notice—Pleadings—Demurrer.</p> <p>A purchaser of lands upon which the right of way of the North Carolina Railroad partially lies is fixed with notice of the easement, and is presumed to have taken it into consideration in the terms of purchase; therefore, when an action is based solely upon a covenant of warranty in a deed which does not exclude therefrom an easement of the said railroad company in the lands conveyed, this easement will not be construed as a breach of the warranty, and a demurrer to the complaint solely on that ground will be sustained.</p>

<p>1. Evidence — Witness, Nonexpert — Opinion Upon the Facts.</p> <p>In an action to recover under a contract for boring an arte-sian well, wherein it is alleged that tbe plaintiff was wrongfully prevented from completing the contract, and defended upon the ground that the plaintiff did not use the proper machinery, especially for straightening crooked places caused by a deflection of hard rock, it is competent for a witness for plaintiff to testify that the machine used was “the best and latest all-round equipped machine for drilling water wells,” and that it had all proper and necessary tools for drilling and straightening crooks, etc., and that he could have bored to the required depth with them, it being “the testimony of a witness to a physical fact peculiarly within his knowledge” and not requiring expert evidence.</p> <p>2. Pleadings — Contracts—Evidence.</p> <p>In an action brought upon contract, evidence relating to a second contract which was not pleaded is incompetent.</p> <p>3. Evidence — Depositions—Nonresidents—Parties—Commencement of Action.</p> <p>The depositions of a party, objected to because the deponent was in the State when the action Was begun, are competent when it appears that lie was a resident of another State and not within this State at the time of the trial. Revisal, 1645 (9).</p> <p>4. Contracts — Written—Fraud—Parol Evidence — Conversations.</p> <p>Without allegation of fraud or misrepresentation, conversations preceding the execution of a written contract are incompetent to vary, alter, or contradict its terms.</p> <p>5. Evidence — Contracts—Use of Improper Machinery — Former Use.</p> <p>When the defense in an action to recover upon a contract to bore an artesian well, alleging that the defendant wrongfully stopped the plaintiff ■ from boring it, is that the plaintiff was not using proper machinery and equipment, evidence as to the insufficiency of a machine formerly used is incompetent.</p> <p>6. Evidence — Depositions—Motion to Quash — Objections and Exceptions — Practice.</p> <p>A deposition can be ' quashed only for irregularities in the taking or the incompetency of the witness, and exception should be taken to the questions and answers of the deponent and not by motion to quash the depositions.</p> <p>7. Evidence — Depositions—Commission—Name of Witness — Practice.</p> <p>It is not necessary that the commission issued for taking depositions name the particular witness to whose depositions exception is taken, when the notice to take the deposition gave the name of the witness and the address of the commissioner, and the requirement of the statute has been met. Revisal, 1652.</p> <p>8. Appeal and Error — Reference—Findings—Evidence.</p> <p>The facts found by the referee and confirmed by the trial judge are not reviewable on appeal when there is evidence to support them; and exceptions to such findings, that they are “contrary to the weight of the evidence,” cannot be sustained.</p>

, at April Term, 1911, of Guilfobb. Civil action to recover $1,050 in gold, alleged to have been given to plaintiff by ber grandfather, tbe intestate. Tbe jury rendered tbe following verdict: “Did tbe intestate of tbe defendant give Delia A. Patterson, during bis lifetime, tbe $1,050, as alleged in tbe complaint? Answer: Yes.” Judgment on tbe verdict, and tbe defendants excepted and appealed.

<p>Appeal from Lyon, J., at April Term, 1911, of Davidson.</p> <p>Civil action to recover damages for injuries caused by alleged negligence of defendant in driving bis automobile.</p> <p>There was evidence on part of plaintiff tending to show that on 7 December, 1909, on tbe road about one and a balf miles from Thomasville, plaintiff was driving a two-horse wagon, loaded with 100 chairs, when his horses took fright at defendant’s automobile, and, getting beyond his control, ran the wagon against a telephone post, whereby plaintiff was thrown to the ground and received painful physical injuries; that the-automobile, driven by defendant, approached from behind at a speed of fifteen or twenty miles an hour; sounded the warning signal when only 25 yards back, and came so suddenly on witness that he had no chance to get control of his team and prevent the running. Speaking to this question, the witness said: “Just passed right by me all at once and didn't give me any chance to hold on to the horses, trying to do all I could with them. If I had had warning in time, I might have prevented the horses from running away.”</p> <p>The evidence of defendant tended to show that he approached at a speed of twelve miles, reduced to eight when nearing the team; gave the .ordinary and usual signals 100 feet back, and passed without observing any sign of fright in the horses or of any change or disturbance in the movement of the team, etc.1 There was further evidence on part of defendant tending to show that the horses were young horses, unused to the road, and that there was no default on part of defendant in the use and operation of the machine or in failing to give the proper signal.</p> <p>The question of defendant’s negligence was submitted to the jury, and the following verdict rendered:</p> <p>“Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.</p> <p>“What damages, if any, is plaintiff entitled to recover ? Answer: $500.”</p> <p>Judgment on the verdict, and defendant excepted, alleging for error, chiefly, the refusal of the court to order a nonsuit.</p>

<p>1. Damages, Compensatory — Punitive Damages.</p> <p>When compensatory damages are allowable they should not be confined to an 'actual pecuniary loss, upon the theory that any recovery above actual loss in money or time having a definite pecuniary value partakes of the nature of punitive damages.</p> <p>2. Damages, Compensatory — Measure of Damages.</p> <p>On an issue as to actual or compensatory damages caused by an injury inflicted, the plaintiff may recover, in proper instances, whatever the jury may decide to be a fair and just compensation for the injury, including his actual loss in time or money, physical inconvenience and mental suffering or humiliation endured, and which could be considered as a reasonable and probable result of the wrong done.</p> <p>3. Same — Standards of Measurement — Contracts,</p> <p>While a recovery for damages for a breach of contract is ordinarily confined to such as are in reasonable contemplation of the parties at the time of making it, which are susceptible of ascertainment with a reasonable degree of certainty, and limited to pecuniary recompense for the loss sustained by the injured party, the position having its origin and basis in the fact that the vast majority of contracts concern themselves with pecuniary .values and have the pecuniary standard for adjustment alone in contemplation, the doctrine does not extend to an agreement which clearly has reference to a different standard, for in such cases damages in case of breach must be awarded according to the standard which the parties have adopted.</p> <p>4. Corporations — Public Service — Breach of Contract — Torts— Measure of Damages.</p> <p>A telephone company, a public-service corporation operating under a public franchise, is responsible for its breach of duty in rendering the service it has undertaken to perform for one having contractual relationship with it, and when suffering special injury by reason of such breach, he is entitled to sue in tort, and, in case of recovery, to have his damages admeasured us in that character of action.</p> <p>5. Same — Telephone Companies — Payment of Rentals.</p> <p>The plaintiff having protested to defendant that he had paid for the rental of his telephone service at his home, claiming he had a receipt therefor which he had temporarily mislaid, but promised to produce, found upon returning home Saturday night that the telephone connection had been severed there in his absence and so continued until the following Monday morning, when he paid under protest and had his telephone service restored. There was conflicting evidence as to whether the plaintiff had actually paid the rental, the company protesting that the receipt was given by mistake as to the amount: Held, the plaintiff, when his cause of action has been established, may recover upon the tort arising from defendant’s breach of contract.</p> <p>6. Same — Mental Anguish — Duty to Avoid or Minimize.</p> <p>The plaintiff, in this case, having a right to sue a telephone company, a public-service corporation, in tort for wrongfully disconnecting his telephone service, evidence on the question of •damages was competent which tended to show his suffering and anxiety naturally arising from the fact that his father-in-law was at the time in a hospital, supposed to be in a dangerous condition, which was known to the company, or its managing officers, and occasioned by the loss of the telephone service at such time, but not the suffering and anxiety caused by the placing and condition of the father-in-law; and in awarding any damages imputable to this source, it should be considered whether he did what he reasonably could have done to lessen his anxiety.</p> <p>7. Corporations — Telephones—Public Service — Tort—Willful and Wanton — Punitive Damages.</p> <p>In awarding damages to one whose telephone service has wrongfully been disconnected by a public-service telephone corporation, the jury may award such punitive damages in addition to compensatory damages as they may deem right and proper, when, in proper instances, they find the act was done maliciously or under such circumstances of willfulness on the part of the defendant as to show a wanton or reckless disregard of plaintiff’s rights.</p> <p>8. Same — Compensatory Damages — Evidence—Questions for Jury.</p> <p>Upon the question of allowing exemplary as well as actual damages in this case, as presented, for the disconnection of the plaintiff’s service by the defendant telephone company, the jury should consider as cireumstancés relevant to the inquiry evidence tending to show that the plaintiff informed the defendant of the payment he had made, that he had a receipt therefor, that the defendant still insisted there was no such payment, and further, that the plaintiff had several times made default in payment of his dues, and that the defendant had been informed by its proper agents that plaintiff- owed the balance concerning which the service had been disconnected.</p>

<p>1. Appeal and Error — Failure to Docket — Motion to Dismiss — Practice.</p> <p>A motion to dismiss an appeal in tbe Supreme Court for failure of appellant to docket in the time required is in apt time when it is made during the term of Court to which the appeal is returnable, and before the case is docketed. Supreme Court Rule 17.</p> <p>2. Same.</p> <p>When the appellant dockets his case on appeal in the Supreme Court at any time after the end of the term to which it is returnable, it will be dismissed, on motion.</p> <p>3. Same — Motion to Reinstate.</p> <p>An appellant is required by Rule 17 of the Supreme Court to move for a reinstatement of his case, after its dismissal upon motion of appellee, during the same term of the Court.</p> <p>4. Appeal and Error — Appeal Abandoned — Motion to Dismiss — Practice.</p> <p>When it appeared from the record on file in the Supreme Court, that the appellant had abandoned his appeal below, no motion to dismiss was necessary, and it will therefore be disallowed.</p> <p>5. Appeal and Error — Service of Case — Extension of Time — Agreement in Writing — Practice.</p> <p>When it appears in the Supreme Court that appellant has not served his case on appeal in time, no agreement for further extension thereof will be considered, unless it is in writing or appears by an entry on the record. Supreme Court Rule 39.</p> <p>6. Appeal and Error — Service of Case — Extension of Time — Attorney and Client — Directions.</p> <p>An attorney for appellee has no authority to extend the time for the appellant’s attorney to serve his case on appeal when he has been forbidden by his client to do so.</p> <p>7. Appeal and Error — Service of Case — Returns of Officer — Affidavit — Corrections.</p> <p>In this case it was proven by the affidavit of the officer that though by his return upon the original statement of case on appeal by appellant it appears that the case was served on a certain date and in time, it was not in fact served until after the expiration of the time allowed or extended by agreement, and appellee’s motion to dismiss is allowed. Officers serving papers are cautioned to make accurate returns, as, in law, they import verity and are prima 'facie evidence of their correctness.</p>

Appeal by defendant from Whedbee, J., at June Special Term, 1911, of Edgecombe. This is an action to recover damages for personal injuries caused, as the plaintiff alleges, by the negligence of the defendant. The defendant denies negligence, alleges that the plaintiff was guilty of contributory negligence, and specially pleads, as a defense, that the plaintiff was. a member of its relief department, and that after his injury he accepted benefits from the department.

, at October Term, 1910, of New HaNOVER. The plaintiff brings this action to recover damages for personal injuries caused, as he alleges, by the negligence of the defendant. The defendant denies negligence and alleges, as a defense, that the defendant maintains a relief department; that the plaintiff was a member-thereof, and that after he was injured he accepted benefits from said department, which, under its rules and regulations, bars a recovery.

S. Allen, J., at August Term, 1911, of Guilford. This is an action to recover damages for loss and injury to certain fruit trees and nursery stock, skipped over the line of tke defendant and of connecting carriers. There were two shipments, one to Williamsburg, Ya., and the other to Tappa-hannock, Ya.

, at March Term, 1911, of Davidson-. This action was brought by the plaintiff for loss of wages for himself and his two sons for twelve months, alleging that he made a contract to work for the defendant on his farm near Thomasville for one year from 1 July, -1909, at the price of $1,200 and $1 per day for each of plaintiff’s sons, said payments to be made monthly, and also for expenses of moving his furniture to the defendant’s farm, and for loss incurred in giving up his…

, at May Term, 1911, of Eowah. This action is to recover damages for the loss of an eye and other injuries caused, as the plaintiff alleges, by the negligence of the. defendant in failing to furnish him a safe place to work, and in not providing a shield to protect him from brass chips falling from a boring mill.

<p>Appeal by plaintiff from Lyon, J., at February Term, 1911, of DAVIDSON.</p>

<p>Appeal by defendant A. J. Fagg, administrator, from Adams, J., and a jury, at May Term, 1911, of StoKes.</p>

<p>Appeal from 0. II. Allen, J., at August Term, 1911, of Guileord.</p> <p>Civil action to set aside and cancel a note and mortgage for $2,000, executed^ by tbe feme plaintiff on ber property to the defendant corporation, tried'"at "August Term, 1911, of the Superior Court of Guilford County, his Honor, O. II. Allen, J., presiding.</p> <p>These issues were submitted to the jury:</p> <p>1. Did the defendant George T. Fenny by' false representations and fraud, as alleged in the complaint, procure the execution of the note and mortgage described in the complaint? Answer: Yes.</p> <p>2. Did the defendant Carolina Loan and Eealty Company, at the time of the execution of the mortgage and the issuance of its check for $2,000, have notice of such fraud? Answer: Yes.</p> <p>4. Was the privy examination of Laura Brite to the mortgage described in the complaint taken as required by law, that is, separate and apart from her husband? Answer: No. ■</p> <p>From the judgment rendered the defendant appealed.</p>

<p>Appeal from Lyon, J., at April Term, 1911, of DavidsoN.</p> <p>Tbe plaintiff is a corporation, doing business as a wholesale grocer at Lexington, N. 0., and the defendant is a corporation which issues credit bonds upon certain conditions and in consideration of premiums paid.</p> <p>On or about 22 January, 1908, the plaintiff made application to the defendant to issue for its benefit a credit bond, and in said application it is provided: “Experience shall be the basis for credit under the bond as specified on Schedule ‘A/ with a single account limit not exceeding $2,000, shall be covered by said bond.”</p> <p>The premium was paid and on 27 January, 1908, said bond was issued in accordance with the application, and contains the following stipulations, among’ others not necessary to be stated:</p> <p>“First. If between the date of the execution of this bond and 22 January, 1909, on goods usually dealt in and at the time of shipment and delivery, solely owned by the indemnified and shipped bona fide and in the regular course of business since 23 February, 1908, the company receives preliminary notices of loss as required by this bond and Schedule A, upon which claim the actual loss sustained by the indemnified thereon as covered by this bond and Schedule A is in excess of $1,000, hereinafter called the initial loss, on sales and shipments not exceeding $400,000, or, if such sales and shipments as aforesaid exceed such sum, a proimrtionally increased initial loss, the company agrees to pay sdch excess loss,, not exceeding the amount of this bond: Provided,</p> <p>“(a) That such losses shall have been sustained on claims against debtors, each of whom is covered by Schedule A attached hereto,.signed by the president and secretary and countersigned by the actuary and one of the registrars, of the company, and which is made a part hereof: Provided further, that when a mercantile agency is designated in the application as a basis for some or all of the credits to be covered by this bond, that the last book printed by such agency prior to the shipment of the goods shall be the basis for covering such shipments from and including the first of the month appearing on such book.</p> <p>“(b) That only claims on which losses occur, which exist (1) against a debtor who has effected a general compromise with his creditors; (2) against a debtor by or against whom a petition to be declared a bankrupt or insolvent has been filed under the Federal bankruptcy law, or under some insolvency or assignment law of any of the United States or any territory thereof; (3) against a debtor against whom an execution in favor of the indemnified or some other creditor has been returned unsatisfied; (4) against a debtor whose stock in trade has been sold in judicial proceedings; (5) against a debtor against whom, upon the ground of insolvency, a writ of attachment or replevin or other process has been issued; (6) against a debtor wbo, upon tbe ground of insolvency, bas transferred bis stock in trade to a trustee or assignee under some assignment law for tbe benefit of bis creditors; (7) against a debtor wbo bas died, leaving bis estate insufficient to pay bis debts in full, and sucb fact is certified to by tbe executor or administrator or any court having jurisdiction thereof, and sucb certificate or a copy thereof is attached to tbe preliminary notice of loss; (8) against a debtor wbo, being a corporation, firm, or individual for whom a receiver bas been appointed upon tbe ground of insolvency; (9) against a debtor where tbe legal proceedings show that, to defraud bis creditors or avoid tbe payment of bis debts, be bas sold out or transferred bis stock in trade; (10) against a debtor wbo bas given a chattel mortgage for tbe benefit of bis creditors; (11) against a debtor wbo bas been found to be insolvent through judicial proceedings; (12) where a claim does not exceed $150 and none of tbe above state of facts have arisen, but tbe designated mercantile agency, a collection agency, or a practicing attorney in or near tbe place where tbe debtor did business reports, in writing, as to each of sucb claims, and such report is attached to tbe preliminary notice of loss, that tbe debtor bas absconded, leaving no assets applicable to tbe payment of bis debts, or that sucb claim is uncollectible and tbe issue of an execution would be useless, and that during a period of at least thirty days prior to tbe making of sucb report diligent efforts have been made to collect sucb claim or claims, and any claim which is more than three months overdue prior to commencement of said bond, and any claim that bas been placéd in tbe bands of sucb mercantile agency, collection agency, or attorney prior to tbe execution of said bond shall not be covered by this (12th) paragraph, but shall, so far as tbe same are covered by this bond and riders attached hereto, be included in tbe calculation of losses, provided tbe insolvency and one of the foregoing facts as enumerated in this subdivision ‘b’ occurs between tbe date of tbe execution and tbe termination of this bond.</p> <p>“Second. Said Schedule ‘A’ shall describe tbe class of customers to be covered by this bond and tbe limit of credit to be extended to each of sucb customers.”</p> <p>Schedule A is as follows:</p> <p>“CO. Customers to whom the indemnified has shipped goods within twelve (12) months prior to shipping the first* item of the goods, wholly or partly included in the account upon which the loss was incurred, shall be considered old customers, and customers to whom the indemnified has shipped no goods within said twelve (12) months, or to whom the indemnified never sold any goods, shall be considered new customers.</p> <p>“KK. Subject to the terms and conditions of the attached bond and this rider, old customers of the indemnified shall be covered for goods shipped during the term of the attached bond for an amount not exceeding the highest indebtedness such customer owed to the indemnified at one time, for goods shipped by the indemnified to such customer within twelve (12) months prior to shipping the first item of the goods wholly or partly included in the account upon which the loss was incurred, not exceeding, however, the amount paid upon such highest indebtedness during said period, but in no event exceeding $2,000 to one customer. .</p> <p>“LL. New customers of the indemnified shall be covered for an amount not exceeding fifty per cent (50%) of the first bill, but the gross amount of such first bill shall not exceed $1,000, and such customer shall be considered an old customer as to goods shipped after the first bill has been paid, and shall then be covered accordingly.</p> <p>“RR. As a condition precedent to having any claim for excess loss under the attached bond and this rider, by reason of any loss or losses on such old or new customers, the indemnified shall attach to the preliminary notice of each loss, if an old customer, a copy of the account upon which the loss was incurred, and a copy of the account, with debits and credits, showing the highest prior indebtedness within said twelve (12) months; and if a new customer, a memorandum must be attached to the preliminary notice of the loss, stating that such customer was a new customer, or else such loss or losses shall be excluded from the calculation of losses.</p> <p>“The words ‘and the -aggregate of all such claims filed does not exceed one-half of the initial loss,’ in lines 51 and 52 of the attached bond, have been made void.</p> <p>“Tbe words beginning with tbe word There,’ in line 70, and ending with tbe word ‘and,’ in line 82, have been made void.</p> <p>“0. Outstandings on tbe boobs of tbe indemnified against solvent debtors on 23 January, 1908, shipped since 1 October, 1907, shall be covered upon tbe same conditions and shall be included in tbe same manner as if tbe goods bad been shipped since tbe execution of tbe bond.</p> <p>“Subject to tbe terms and conditions of tbe attached bond.”</p> <p>This action is to recover on said bond for losses, which tbe plaintiff alleges it has sustained.</p> <p>An account between tbe parties was stated by a referee, and upon bis report being filed, judgment was entered in favor of tbe plaintiff for tbe sum of $3,693.38, and tbe defendant excepted and appealed.</p> <p>Tbe exceptions present one question, and that is, whether accounts made after tbe execution of tbe bond, by persons who were then insolvent, are covered by tbe bond, if based on tbe past experience of the plaintiff with tbe persons making tbe accounts, and tbe defendant relies particularly on the proviso to paragraph 12 of subsection “b” of tbe bond, which reads as follows: “Provided tbe insolvency and one of tbe foregoing facts in this subsection £b’ occur between tbe date of tbe execution and termination of this bond.”</p> <p>Tbe referee and bis Honor held that such accounts were covered by tbe bond, and defendant excepted.</p>

<p>Appeal from W. J. Adams, J., at June Term, 1911, of ROCKINGHAM.</p> <p>This is an action to recover damages for tbe death of tbe plaintiff’s intestate, caused, as tbe plaintiff alleges, by tbe negligence of tbe defendants.</p> <p>Tbe plaintiff was aiding in building tbe foundation of tbe mill of tbe defendant Avalon Mills at tbe time of bis injury, and there is ample evidence of negligence.</p> <p>Tbe defendant Avalon Mills denies negligence, and alleges that tbe work was being done by tbe defendants Ordway & Sons, as independent contractors, and tbe defendant’s counsel say that the only question presented by tbe eleven assignments of error is whether or .no S. S. Ordway & Sons aré independent contractors.</p> <p>There are three paper-writings which constitute tbe contract between tbe defendants.</p> <p>Tbe first is entitled, “Specifications for constructing tbe masonry abutment and bead gates for tbe Avalon Mills at Mayo-dan, N. 0.,” and all specifications relate wholly to tbe material to be used, except tbe fourth, seventh, eighth, and ninth, which are as follows: '</p> <p>“4. Mortar shall be composed of two parts clean, sharp sand and one part of Rosendale cement of such brand as tbe engineer may approve, and mixed and used in such manner as be may direct.”</p> <p>“7. Coping and arch masonry, should any be required, is not to be included in this work, but may be furnished by tbe company and set in place by tbe contractor at a fair price, to be determined by tbe engineer.”</p> <p>“8. Tbe work shall be begun within ten (10) days from tbe time of award of tbe contract, and be finished and completed within four (4) months thereafter. Should the contractor not prosecute tbe work with such vigor as to indicate tbe corripletion of tbe work within tbe time specified, be must increase tbe force and equipment to sucb extent as the engineer may deem necessary to complete the work within the prescribed time, or suffer the penalty of a forfeiture of his contract and all the monies that may be due him upon the work at such time as the right may be exercised by the company, party of the second part, viz., The Avalon Mills.”</p> <p>“9. At the end of each thirty (30) days after the work is begun the engineer shall measure up all the finished work, and make due and proper safe allowance for unfinished work, and render an estimate of the amount due the contractor for such work, which amounts shall be paid to him, less ten (10) per cent, which shall be held until the final completion of the work by the contractors.”</p> <p>The second is entitled, “Specifications for constructing the head race or canal for th.e Avalon Mills Company, at Mayodan, N. C.,” and contains detailed statements as to how the work shall be done, and among others, the following provisions: “Should the contractor not prosecute the work with such vigor as to indicate the completion of the work within the time -specified, he must increase the force and equipment to such an extent as the engineer may deem necessary to complete the work within the prescribed time, or suffer the penalty of a forfeiture of his contract and all his money that may be due him upon the work at such time as this right may be exercised ’by the company, party of the second part, viz., The Avalon Mills.” “The entire work shall be done in full accordance with the directions and instructions of the engineer or his assistant, and a failure on the part of the contractor to observe and well and truly carry out the work in accordance with the instructions of the engineer or his assistant shall be deemed sufficient cause for the exercise of his forfeiture clause set forth in section (8) by the said Avalon Mills.”</p> <p>The third is entitled, “Specifications to accompany plans of dam, bulkhead gates and spillway for the Avalon Mills, all made for same by C. E. Makepeace & Co., mill engineers, Providence, E. I., August 5, 1899,” and after specifying how the work shall be done, says: “In the foregoing specifications it is intended to enumerate all of the leading particulars in the erection and finishing of all this work, and it is understood by the contractor that the same is to be finished complete to the intent and meaning of these specifications and the plans and details; and all materials and workmanship connected with this work must be entirely satisfactory to C. R. Makepeace & Co., or the engineer or superintendent in charge of the work. It is understood by the contractor that should any difference of opinion arise, respecting said workmanship, work or materials, or any other matter whatsoever relative to the erection and finishing of this work, between the contractor and owners, such difference -shall be submitted to C. R. Makepeace, and his decision thereon shall be 'final and conclusive between both parties, and it is so understood and agreed by said parties.”</p> <p>It was in evidence that one of the workmen went to Avalon where the work was being done, upon a telegram sent by the superintendent of the defendant mills, but the superintendent testified that he sent the telegram at the request of Ordway & Sons, who needed a mason, and because they were not acquainted at the place where the mason lived.</p> <p>The plaintiff contended that, upon the face of the papers, Ordway & Sons were not independent contractors, and requested the judge to so charge the jury, and upon his refusal to do so, excepted.</p> <p>There was a verdict against Ordway & Sons, but no judgment upon the verdict because of their discharge in bankruptcy.</p> <p>There is no claim that Ordway & Sons were not responsible parties at the time the contracts were made.</p> <p>The plaintiff excepted and appealed.</p>

<p>1. Master and Servant — Safe Place to Work — Safe Appliances — Dangerous Machinery — Negligence.</p> <p>An employer of labor must furnish: the employee a place to do the work assigned to him as reasonably safe as the nature of the business will admit, and when the employment is in the operation of mills and other plants having machinery more -or less complicated, and driven by mechanical power, he is required to provide methods, implements, and appliances such as are known, approved, and in general use.</p> <p>2. Same — Evidence—Nonsuit.</p> <p>In an action to recover damages for the alleged negligent killing of plaintiff’s ■ intestate, employed by defendant to operate a rip-saw in his plant operated by steam, there was evidence tending to show that tlie saw was “wobbly” and operated with antiquated machinery upon a table that was of an obsolete kind, and by belts nearly horizontally placed, without boxing or guards, so that planks could readily fall upon them under the circumstances of the employment, and cause the injury complained of, by being hurled from the running belt, and in no other manner; that the machinery and appliances furnished were not such as were known, approved, and in general use, and if they had been the injury would not have been inflicted: Eeld, the evidence was sufficient for the jury to find that the plank had been hurled upon the plaintiff’s intestate from the unguarded belt, owing to the defendant’s negligence, and a motion to nonsuit was properly overruled.</p> <p>3. Same — Contributory Negligence — Burden of Proof.</p> <p>In an action for damages for the alleged negligent killing of plaintiff’s intestate while at work at defendant’s rip-saw, by reason of improper machinery and appliances furnished by the defendant for the work, causing the death by a plank hurled from a running belt, the defense of contributory negligence was set up in bar, that the intestate was sawing, at the time of the injury, a board on the table, and before the board had gone through the saw he put another board in and negligently and carelessly sawed the second board and shoved it so that the first board caught in the saw and was -thrown back, striking him on the head and causing his death, and against this the intestate had been warned: Eeld, an instruction to the jury was correct which, in effect, charged if they should find from the greater weight of the evidence that the intestate was injured in this manner, the plaintiff could not recover.</p> <p>4. Master and Servant — Safe Place to Work — Safe Appliances — Dangerous Machinery — Assumption of Risks.</p> <p>In an-action for damages for the wrongful killing of plaintiff’s intestate while' at work at defendant’s rip-saw, there was evidence tending to show that it was done by a plank falling upon and heing thrown from an unguarded belt operating the saw, and that the machinery was old and obsolete: Held, a charge was correct, upon the application oí the doctrine of assumption of risks, that if the jury find from the greater weight of the evidence that the conditions were such that only a reckless man would have continued to work thereunder, and the probabilities of being injured were greater than the probabilities of safety, the jury should answer the pertinent issue in the affirmative, in defendant’s favor, for upon the facts in this case it could not be assumed as a matter of law.</p>

, at November Term, 1911, of ROBESON. Tbis is a controversy, without action, submitted to the court under the provisions of section 803 of the Revisal of 1905.

, at April Term, 1911, of Davidson. Civil action to recover on a policy of life insurance issued by tbe defendant on the life of U. E. Sexton. The policy is for $1,000, numbered 742, with an accident clause requiring the insurer to pay double the amount in the event of death by external, violent, and accidental means. The insured was killed in a railway wreck 15 December, 1909. These issues were submitted to the jury, to which defendant excepted and tendered other issues: 1.

<p>1. Railroads — Interstate Commerce — Master and Servant — Intrastate Cars — Federal Employer’s Liability Act.</p> <p>A locomotive engineer on a train which carries interstate cars is engaged in interstate commerce within the meaning of the Federal Employer’s Liability Act, though there are intrastate cars in the train.</p> <p>2. Railroads — Master and Servant — Federal Employer’s Liability Act — State Courts — Jurisdiction—Pleadings.</p> <p>• When the Federal Employer’s Liability Act is especially pleaded and relied on in an action for damages for personal injuries brought in the State court, a recovery thereunder may be had when the cause of action falls within its provisions.</p> <p>3. Railroads — Master and Servant — Defective Appliances — Negligence — Evidence.</p> <p>When there is evidence tending to show that the eye of the engineer of the defendant railroad company was injured by an explosion of the water-glass in the cab of his locomotive, while in the discharge of his duties, and that the injury could not have happened had the defendant, after notice, supplied the water-glass with the usual shield or guard in general use by railroad companies, it is sufficient upon the question of defendant’s negligence.</p> <p>4. Railroads — Master and Servant — Federal Employer's Liability Act — Contributory Negligence — Interpretation of Statutes.</p> <p>When a plaintiff has sued in the State court and has pleaded and brought his action within the provisions of the Federal Employer’s Liability Act, contributory negligence is no bar to, his recovery, and a motion to nonsuit upon the evidence on that ground cannot be sustained under the provisions of the act.</p>

<p>1. Condemnation — Damages—Special Benefits — Offsets.</p> <p>In awarding damages against a county for constructing a public road over private property, tbe owner is .compensated for tbe taking of the property for public use wben tbe benefits be will receive are equal to tbe value of tbe land taken.</p> <p>2. Same — Legislative Authority — Vested Rights — Constitutional Law.</p> <p>The Legislature has the constitutional authority to, provide that the special benefits to be derived to the owner of lands over which a county constructs a public road shall be an offset against damages sustained by the owner in having his lands thus taken for public use; and this requirement can be changed by the Legislature at any time before the rights of the parties are settled and vested by verdict and judgment.</p> <p>3. Condemnation — Damages—Special Benefits — Offsets.</p> <p>Only those benefits which are special to, the owner of lands taken by the county in constructing a public road across them can be considered as an offset to the damages claimed by him, and not such as he shares with other persons in similar circumstances, unless the statute provides differently.</p> <p>4. Same — Speculative Damages — Evidence.</p> <p>In this action against the county for damages to plaintiff for taking his lands in the construction of a road across them, evidence was competent that the value of the lands would be increased because of the special benefits thus to be derived by the owner, and not objectionable as being speculative or remote.</p> <p>5. Instructions, Correct in Part — Appeal and Error.</p> <p>A prayer for special instruction which in part correctly states a proposition of law, and incorrectly applies them to the matters in evidence, is improper, and should be refused.</p> <p>Brown and Walker, JJ., dissenting.</p>

<p>Liens — Material Men — Identity of Property — Interpretation of Statutes.</p> <p>A line of poles, wires, and appliances carrying electricity from a dynamo to a manufacturing plant for power and lighting purposes retains its identity and therefore is not “material furnished” within the meaning of Revisal, 2016, so as to entitle the vendor to a lien upon the plant, for in such instances the vendor could retain title under a conditional sale or by a mortgage lien which would protect his debt. Pipe Go. v. Howland, 111 N. C., 615, cited and distinguished.</p> <p>Walker, J., dissenting.</p>

<p>Parties — Contracts — Assignment—Persons Interested — Interpretation of Statutes.</p> <p>The vendee under a contract for the sale and delivery of cotton cannot maintain an action thereon when it uncontradictedly appears from his own evidence that he has assigned the contract to a third person, not a party to the action, and has no further interest therein. Revisal, sec. 400.</p>

<p>1. Equity — Creditor’s Bill — Liens — Amount of Claim — Superior Court’s Jurisdiction — Justice’s Courts.</p> <p>The Superior Court having taken charge o£ the debtor’s property in a creditor’s bill under its general jurisdiction, may collect and dispose of all the assets and determine the liens and priorities and make application accordingly of the funds, irrespective of the amount of any claim, including liens for labor and material less than $200, of which otherwise the court of a justice of the peace would have jurisdiction.</p> <p>2. Liens — Material and Labor — Clerk—Notice—Record Sufficient.</p> <p>The purpose of filing mechanic’s, etc., claims for liens, Revisal, sec. 2026, is to give public notice of the claims, the amount, the material supplied or the labor done and when done, on what property, specified with such detail as will give reasonable notice to all persons of the character of the claims and the property on which the lien attached.</p> <p>3. Same — Schedule Referred to.</p> <p>When a lienor’s schedule for material contains a full itemized statement in detail of the material furnished, and the clerk has entered on his docket the names of the lienor and lienee, the amount claimed by each lienor, a description of the property by metes and bounds, the dates between which the materials were furnished, referring to the schedule of prices and materials attached to the notice, asking that it “be taken as a part of the notice of lien,” it is a sufficient compliance with the statute. Revisal, secs. 915 (21), 2026.</p> <p>4. Liens — Conditional Sale — Reservation of Title — Realty—Registration.</p> <p>Goods sold under a contract reserving title in the vendor, which are attached to the realty, become realty except as between the parties, hut not as against others who have acquired a lien for labor and material before the registration of the conditional sale.</p>

<p>Appeal by plaintiff from W. J. Adams, J., at February Term, 1911, of RockiNgi-iam.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Cla/i'k.</p>

<p>Appeal from hong, J., at April Term, 1911, of Mitchell.</p> <p>’ Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.</p>

<p>1. Statute of Frauds — Contract to Convey Lands — Memoranda— Lawfully Authorized Agent.</p> <p>A memorandum of a contract to convey land, written at the request of the contracting parties and in their presence, sufficiently stating the terms and conditions of sale, designating the lands sold, with the names 'of the parties appearing therein, is sufficient to make a valid contract under.the statute o,f frauds.</p> <p>2. Same — Signing—Name in Memoranda.</p> <p>It is not necessary that a contract to convey lands be subscribed by the party to be bound thereby, and the requirements of the statute of frauds are met if his duly authorized agent write his name-within a sufficient memorandum of the agreement.</p> <p>3. Statute of Frauds — Contract to Convey Lands — Lawfully Authorized Agent — Parol Authority.</p> <p>The authority of a duly authorized agent of a party to be bound by a contract to convey lands need not be in writing under the statute of frauds.</p> <p>4. Same — Description—Signing—Name in Memorandum.</p> <p>A, having agreed to sell his home place to B, the parties requested C to witness the terms and conditions of the sale, and B having given A his note in part payment of the purchase money, C, in the presence of A and B, wrote the following memorandum of sale: .“$5,000 January 2, 1911; $5,000 January 2, 1912. B to pay the above to A when he makes deed to- A for B’s home place, 3 October, 1910.” O read this memorandum over to A and B, and they said it was correct. B resisted suit to recover the purchase price on the ground of the statute of frauds : Held, C was the lawfully authorized agent of A to write the contract, within the meaning of the statute of frauds; the property contracted for was sufficiently described; the writing of A’s name in the memorandum was a sufficient signing, and the contract is a valid one.</p>

<p>Appeal by plaintiffs from Ward, J., at March Term, 1911, of Nash.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

<p>1. Deeds and Conveyances — Timber Reserved — Time of Cutting— Notice to Grantor — Grantee of Timber.</p> <p>A conveyance of lands reserving in the grantor all the timber of every description, without specifying within what time the timber is to be removed, requires by construction that the grantor should remove the timber within a reasonable time after notice to do so -given by the grantee; and the grantee of the timber reserved holds the reservation of the timber in the same plight as this grantor held it.</p> <p>2. Deeds and Conveyances — Timber Reserved — Size—Date of Deed.</p> <p>A reservation in the grantor of the timber upon the lands conveyed is of such trees large enough to be timber at the time of the execution of the deed.</p> <p>3. Same — Injunction—Ascertainment of Size — Experts—Reference— Power of Court.</p> <p>"When a conveyance of lands reserved in the grantor all the timber thereon, and it appears by construction of the instrument that the trees should be of that size as of the date of the deed, it is reversible error for the court, not having found that the contention of the plaintiff was not 'bona, fide (Revisal, 809). to dissolve an order restraining the cutting of the timber upon the defendant’s giving bond, solely upon the ground that it was impossible to ascertain at a later date which trees were of the required size at the date of the deed (Revisal, 809), as such may be fairly approximated by experts, who, upon the failure of the parties to agree, may be appointed by the court. (Revisal, 519 (3).)</p> <p>4. Deeds and Conveyances — Timber Reserved — Size—Specifications as to Wood and Fence Rails — Interpretation.</p> <p>A conveyance o£ land reserved in the grantor all timber trees thereon, but permitted the grantee to cut firewood and fence rails from trees “not over 14 inches in diameter 2 feet from the ground”: Held, the specification of the sizes of the trees from which the grantee could cut firewood and fence rails, without prospective words, does not of itself affect the construction of the deed that the trees large enough for timber were reserved.</p> <p>Allen, J., did not sit.</p>

<p>Appeal from Biggs, J., at May Term, 1911, of MegkleN-BTTRG-.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

, at October Term, 1911, of Meck-lenburg. Civil action submitted upon an agreed state of facts. His Honor gave judgment for defendant, and plaintiff appealed.

<p>1. Precincts — Quasi-municipal Corporations — Powers.</p> <p>In this case Held, that Kings Mountain Precinct in No. 4 Township, Cleveland County, is a quasi-municipal corporation created by the State and vested with certain corporate powers. Smith v.. School Trustees, 141 N. C., 143; Board of Trustees v. WebTo, 155 N. C., 379, cited and applied.</p> <p>2. Bond Issues — Precincts—Legislative Authority — Sinking Funds —Restricted Levy — Negotiable Instruments — Particular Fund.</p> <p>A legislative act empowering the issuance oí bonds by a precinct for building and maintaining, etc., its public roads, authorizing taxes to be computed and levied on all taxable property therein, does not restrict the payment of the bonds so as to render them nonnegotiable by providing a maximum rate of taxation upon the property and poll; and, further, that “no sinking fund shall be created within less than ten years from the date of issuing said bonds,” but allowing the properly constituted authorities to use, for the purposes of the act, “such sums of money, remaining after the interest on said bonds shall have been paid” ; and the bonds issued thereunder containing an unconditional promise to pay a sum certain in money at a fixed time to bearer, are a compliance within the provision of our negotiable instrument act as to the negotiability of a paper, which indicates a particular fund out of which reimbursement is to be made or a particular account to be debited with the amount.</p> <p>3. Bond Issues — Precincts—Legislative Authority — Tax Levy — Restrictions — Payment—Negotiable Instruments.</p> <p>A legislative authority to a precinct to issue bonds and levy taxes on all taxable property for the purposes of the act, does not affect the ultimate liability of the precinct for their payment in full by restricting the tax levy to a certain amount upon the property and poll.</p>

, at March Term, 1911, of Pitt. This is an action to recover benefits, which the plaintiff alleges he is entitled to finder the rules and regulations of the relief department of the defendant. The plaintiff, an employee of defendant, became a member of the relief department on 28 June, 1902, and paid his dues, amounting to $6.15, up to 6 September, 1902, when he was accidentally injured.

, from judgment rendered 21 August', 1911, from MONTGOMERY. Tbis is a motion to set aside a judgment for irregularity.

<p>1. Wills — Trusts and Trustees — Equitable Estates — Execution of T rusts — Dower—Demurrer.</p> <p>Tbe widow is not entitled to dower in an equitable interest in lands of ber liusband, whicli is subject to certain trusts and changes, until they are satisfied; and, hence, unless it appears in the widow’s proceedings for dower that they have been satisfied, a demurrer thereto will be sustained.</p> <p>2. Same.</p> <p>A testatrix who had received a life estate from her father in a certain amount, with limitation over to her children, by her will declared that advances had been made from the trust estate to two of the children, R being one of them, and, subject to the debts of the testatrix and to these advances, the said amount was to be equally divided among her children. It also appeared from the will that a part of the trust property had been given in part payment of a certain tract of land which the owner had contracted to convey to her. The widow of R claiming dower in certain of the lands, without allegation in the petition as to what had been done under the will, -or that the trusts had been closed: Held, neither R nor his widow could have an estate in possession until these trusts and charges were satisfied, and that the widow of R consequently was not entitled to dower, upon the face of the petition, and hence a demurrer thereto should be sustained.</p> <p>3. Same — Active Trusts — Account.</p> <p>A will declaring a life estate in one of certain trustees, with a limitation over to the children of testatrix after discharging certain debts and the execution of certain trusts, declares an active trust, and vests no estate in the children until the execution of the trusts; but a mere right to have the trusts executed and the accounts stated, and there would, until then, be no seizin in one of the children of lands from which his widow’s dower could be assigned.</p> <p>4. Dower — Equitable Estates — Seizin of Husband — Personalty— Trusts and Trustees — Advancements—Distribution.</p> <p>An estate in lands of a deceased husband from which his widow’s dower may be assigned, whether legal or equitable, must be one of which the husband was seized. Semble, in this case, the will should he construed that the laud be sold and the proceeds divided, and therefore the interest of the husband would be personalty; that advancement had been made to the husband of more than his share of the fund; that the trustees were to divide the fund after certain children had been made to account for advancements, and Patton v. Patton, 60 N. C., 574, applied.</p>

, at April Term, 1911, of Unioít. Civil action to obtain a divorce from bed and board, instituted by tbe wife against tbe husband, beard on motion for alimony pendente lite.

<p>Appeal from Lyon, J., at February Term, 1911, of Davidson.</p> <p>Civil action for damages for alleged wrongful diversion of water upon jdaintiff’s premises, causing substantial damages thereto.</p> <p>Plaintiff alleged that defendant bad changed the grade of a public street in front of his home, and, in doing this and in the construction of the sidewalk, had so done the work, that whenever there was a hard or beating rain a lot of water was collected and thrown in bulk upon his premises and the residence thereon, causing serious damage to his property and the family resident thereon. Defendant denied the wrong and pleaded the three-year statute of limitations thereto, in case same should he established. At the close of plaintiff’s evidence, and again at close of entire testimony, there was motion of nonsuit. Last motion sustained. Judgment of nonsuit entered, and defendant excepted and appealed.</p>

<p>Appeal from Whedbee, J., at tbe April Term, 1911, of Wake.</p> <p>Civil action to recover for damages to live stock, skipped by-plaintiffs over tke lines of defendant companies.</p> <p>On tke trial, it appeared tkat plaintiffs, kaving purckased a number of standard-bred korses, in February, 1910, skipped same over lines of defendant companies from Lexington, Ky., over C. and 0. road, to Lynckburg, Ya., and from tkat point over tke Soutkern to Greensboro, N. 0. Tkere was evidence, on tke part of plaintiff, tending to skow tkat plaintiffs, during tke negotiations for skipment, informed tke agent of tke C. and O. road tkat tke korses were a kigh-priced lot and tkat one was a stallion, about three years old; tkat tke natural propensities of a stallion, of tkat age, and of tkis one,-were suck tkat it was dangerous to turn kim in with tke otker stock, and tkat defendant, tke C. and 0. road, on being informed tkat suck an animal was in tke lot, undertook and agreed to have kim securely boxed off from tke otkers; tkat tkis was done in suck.a negligent manner' .that, when tke car reached Lynckburg, tkis partition or stall was entirely down, allowing all tke stock to mingle together.. Tke agent of tke C. and 0., describing the manner in which it had been first constructed, spoke of it as a “sorry job,” and, owing to tkis fact and tke condition of tke car, tke Soutkern Railway refused to receive tke stock, at Lynckburg, until tke car was repaired and tke conditions corrected; tkat tkis was done by tke agent of tke 0. and 0. and tke stall securely built, but, in replacing tke korses in tke car, said agent put in tke box stall one of them which had already been' hurt and turned tke stallion in with tke otkers, and with tke result tkat, when the stock arrived at Greensboro, they were bitten and kicked until one of them died of bis injuries and otkers badly damaged, to the amount of $1,160; that of this damage $450 was done to the horses of another shipper, and the damage done to plaintiff’s horses, attributable to defendant’s negligence, amounted to $710.</p> <p>There was allegation, with evidence, on part of defendant, tending to show that defendant, the O. and 0. Railroad, had only made a rate.as far as Lynchburg, the shipment from that point being over the lines of the Southern Railway; that the defendant, the C. and 0. Railroad, had not undertaken to box off the stallion and was guilty of no negligence in that respect. Defendant further introduced and relied upon the written contract of shipment or bill of lading, in which it was stipulated, in effect, and as relevant to the inquiry, that, in consideration of a reduced freight rate, the 0. and 0. Railroad was only to be chargeable for injuries arising from its gross 'negligence, and, on the question of value, that in cases of any injuries to the stock, for which said company was responsible under the contract, the amount of recovery should, in no case, exceed $75 for each horse, mule, stallion, or jack; $30 for each cow, steer, or bull, and $5 for each other animal; and the agent testified that this was an old printed form, and the value, $75, having been changed to $100 by subsequent regulations of the company, he inserted the $100 in lieu of the $75, and that, by this classification and rating, the plaintiffs saved several hundred dollars in freight charges. There was testimony, also, for defendant, that the classification and freight rate, in this instance, was in accord with a regulation made and approved by the Interstate Commerce Commission.</p> <p>The judge charged the jury and, on issues submitted, they rendered the following verdict :</p> <p>1. Was the plaintiff’s property injured by the negligence of the defendant, the Southern Railway Company, as alleged in the complaint? Answer: No.</p> <p>2. Was the plaintiff’s property injured by the negligence of the defendant, the Chesapeake and Ohio Railway Company, as alleged in the complaint ? Answer: Yes.</p> <p>3. ’What damages is plaintiff entitled to recover from the Southern Railway Company? Answer: None.</p> <p>4. Whát damages is plaintiff entitled to recover from tbe Chesapeake and Ohio Railway Company? Answer: $710.</p> <p>Judgment on verdict for plaintiff, and defendant C. and O. Railroad excepted and appealed.</p>

J. Adams, J., at March Term, .1911, of Fobsyth. This action was brought by the plaintiff to recover damages for injuries sustained by his falling into an unprotected sewer-ditch, which was being constructed on Liberty Street, within the corporate limits of the city of Winston.

<p>Appeal by plaintiff from Lyon, J., at 'March Term, 1911, o£ STANLEY.</p>

, at April Term, 1911, of ANSON. Civil action to recover damages for death of plaintiff’s intestate, an employee of Bonsai & Co., caused by alleged negligence of the employer, and in wbicb the Maryland Casualty Company was joined as an original party defendant, heard on demurrer for misjoinder of parties.

, at May Term, 1911, of Mecklen-BURG. Civil action, beard on case agreed.

<p>Appeal from. Daniels, J., at July Term, 1911, of Randolph.</p> <p>Civil action to recover damages for breach of contract to convey land and to condemn and apply the proceeds from a sale of real estate to satisfaction of the damages alleged to be recoverable.</p> <p>Defendants denied the existence of the contract and pleaded an estoppel of record against recovery by reason of a judgment on action commenced before the Clerk of Randolph County as a special proceeding to sell land for division among tenants in common, transferred on issues joined to the Superior Court of Randolph County and determined there by judgment on report of referee, duly entered in Superior Court of said county, July Term, 1909, as follows:</p> <p>Superior Court of Randolph County, July Term, 1909.</p> <p>This cause coming on for a hearing upon exception to report of referee, all exceptions are withdrawn and it is adjudged that the report of referee be in all respects approved and confirmed. The referee allowed a fee, etc.</p> <p>(Signed) B. F. Long, Judge Presiding.</p> <p>On the present trial his Honor, reserving the question of estoppel, submitted issues, and the following verdict was rendered by the jury:</p> <p>1. Did the plaintiff and S. L. Coltrane enter into the contract alleged in the complaint ? Answer: Yes.</p> <p>2. Did the plaintiff comply with the terms of said contract, as alleged in the complaint ? Answer: Yes.</p> <p>And the court being of opinion on the question reserved that there was no estoppel of record shown, and the amount of damages, if any due, having been admitted^ entered judgment for plaintiff, and defendants excepted and appealed.</p>

<p>1. Principal and Surety — Attorney at Law — Collection of Debt — Extension of Time — Authority Implied.</p> <p>An attorney employed simply to collect a note has no authority to extend the time for its payment so as to release the other parties bound thereon, or to do any act which will jeopardize his client’s interest. An attorney can only collect in cash, and, without express authority or conduct equivalent to authority, cannot temporize with the debtor to the prejudice of the creditor.</p> <p>2. Same.</p> <p>An accommodation paper with sureties was deposited by the payee with a bank as collateral to a note given the bank for a loan to him. At the request of one of the sureties, the maker of the collateral note gave a chattel mortgage to the payee thereof, to secure the debt and indemnify the sureties, which was duly registered. The bank sent the note made to it, with the collateral, to an attorney for collection, who allowed the maker of the collateral note several days in which to sell the mortgaged chattels and pay the note, but subsequently sold them under the mortgage and applied the proceeds to the payment of the note, which proved to be insufficient for the purpose: Held, the act of the attorney in granting the maker of the collateral note time in which to sell the mortgaged chattels and pay the note did not operate as a discharge of any of the parties.</p> <p>3. Attorney and Client — Principal and Agent — Waiver of Client’s Rights — Ratification—Estoppel..</p> <p>As a general rule, an attorney cannot waive any of the substantial rights of his client without the latter’s consent, and he is not bound by the attempted waiver, unless there be a ratification, or something which amounts to an estoppel.</p>

<p>Appeal from Biggs, J., at tbe January Term, 1911, of Cabar-■rus. > ! i</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

<p>Appeal from Peebles, J., at April Term, 1911, of New HaN-OVKR.</p> <p>The facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.</p>

<p>1. Sheriffs — Collection of Taxes — Balance Due — Counterclaim.</p> <p>In an action to recover from a sheriff a balance of taxes collected by him and due, a counterclaim or debt of any kind, however valid, cannot be sustained.</p> <p>2. Same — Mandamus—Procedure.</p> <p>A graded school and county commissioners sued the sheriff for taxes collected which should have been paid the school, and the defendant set up a counterclaim that for certain previous years the county commissioners had wrongfully appointed another to collect these taxes, and that the commissions thus due him should be deducted from plaintiff’s claim: Held, (1) the sheriff’s remedy was by mandamus against the county commissioners at the time alleged, to have the tax books placed in his hands by the couhty commissioners, and an injunction to prevent the payment of the commissions to the collector alleged wrongfully to have been appointed, until his right had been decided ; (2) or by suit against the collector alleged to have been wrongfully appointed, for the commissions paid to him.</p> <p>3. Sheriffs — Commissions on Taxes — Speedy Trial — Procedure.</p> <p>The right to a speedy trial by a sheriff suing for commissions on taxes collected by one wrongfully appointed by the board of county commissioners is secured under Revisal, 833; and his interests are protected by the undertaking required by Revisal, 835.</p> <p>4. Same — Trusts and Trustees — Bar to Action..</p> <p>The taxpayers are not required to pay commissions twice for the collection of taxes because the wrong party discharges the duties of collector, the remedy of the one wrongfully deprived being against the intruder who has thus deprived him of his commissions, in an action for money had and received to his use (Revisal, 844), and his failure to do so in his action to recover the office is a bar to an independent action therefor.</p> <p>5. County Commissioners — Sheriff’s Commissions — Official Capacity —Counterclaim—Cross-actions—New Matter.</p> <p>A sheriff in his answer to an action by a graded school and the county commissioners for balance of taxes collected by him, due and not paid over, may not set up a counterclaim for commissions on taxes for previous years collected by one wrongfully appointed for the purpose by the county commissioners, for this is a cross-action against the plaintiffs for their alleged wrongful act as county commissioners in their official capacity, which he could not maintain if brought directly.'</p>

<p>Appeal from Long, J., at February Term, 1911, of Ruthee-eoed.</p> <p>Civil action to recover a tract of land. These issues were submitted to tbe jury:</p> <p>1. Is tbe plaintiff tbe owner in fee and entitled to tbe possession of tbe land described in tbe complaint? Answer: No.</p> <p>2. Are tbe defendants, or any of them, in possession of tbe land described in tbe complaint, or any part of it? Answer: Yes.</p> <p>3. What damages, if any, is plaintiff entitled to recover of tbe defendants ? Answer:.</p> <p>From tbe judgment rendered tbe plaintiff appealed.</p>

, at July Term, 1911, of Buitcombe. Civil action for damages for personal injury. At conclusion of the plaintiff’s evidence bis Honor sustained motion to nonsuit, and plaintiff appealed.

, at March Term, 1911, of MecjKleN-bueg. Civil action for damages for tbe alleg’ed negligent killing of ’William Dover, tbe son and intestate of plaintiff. At conclusion of tbe evidence a judgment of nonsuit was ordered upon motion of defendant, and plaintiff excepted and appealed.

, at August Term, 1911, of Ruthee-eoed. Civil action brought for damages for personal injury received by plaintiff while in defendant’s employment. There was verdict for plaintiff upon the issues submitted, and from the judgment rendered the defendant appealed.

<p>Appeal from Biggs, J., at March Term, 1911, of Meciclek-bueg.</p> <p>The plaintiff instituted two actions against the defendant. ,</p> <p>In the complaint in the first it alleges that it is the owner in fee of a certain tract of land; that the defendant has unlawfully-entered on a part thereof, under some pretended claim of title, which is void, and has cut timber thereon to its damage $300, and it demands that it be declared the owner of the land and recover $300 damages and costs.</p> <p>In the second, the allegations are in substance as those contained in the first complaint, except another entry and trespass are alleged and the damage is laid at $1,500.</p> <p>These actions were consolidated by consent.</p> <p>The material allegations of the complaint were denied by the defendant.</p> <p>On the trial, the plaintiff introduced Grant No. 951, from the State to G. N. Folk, dated December, 1874, calling for 640 acres of land, more or less, which grant was duly recorded in the register’s office in Caldwell County, and then introduced a regular chain of title from this grant down to the plaintiff, there being no exception to plaintiff’s title papers.</p> <p>Plaintiff also introduced evidence locating the land covered by its grant and other title papers and evidence as to the defendant’s cutting timber within the boundaries of plaintiff’s title, claiming that in 1906 defendant cut about 26,000 feet of timber, and in 1907 about.48,000 feet, and in 1910 and 1911 about 51.340 feet, the total of the timber so cut amounting to.about 125.340 feet, and that the damage was about $700 or $800.</p> <p>The defendant introduced a grant from the State to himself, dated 30 August, 1905, and registered in Caldwell County, in Book 43, page 59, said grant being for 50 acres of land, and evidence locating said grant, which location showed that it was within the boundary of plaintiff’s grant and title. Defendant also introduced evidence tending to show that the amount of timber cut by him from the land within the boundary of his grant, which was within the boundaries of plaintiff’s title, was less than was claimed by plaintiff, and that the damage to plaintiff, if plaintiff was entitled to recover, would not exceed $130 to $150. Defendant further introduced in evidence the entire record in the case of the Caldwell Land and Lumber Company v. J. C. L. Hayes, consisting of the summons, prosecution bond thereon, together with the service and return thereon, the complaint and answer filed in the case, and the judgment of nonsuit taken by plaintiff in this case, the summons being dated 22 May, 1906, and the judgment of nonsuit taken at January Special Term of the Superior Court of Caldwell County, 1907, and then introduced the summons for relief, the basis of this action, together with the bond attached thereto, the service and return thereon, said summons being dated 13 November, 1908, and then introduced the complaint and answer in this case, showing that the causes of action were substantially the same in the several actions.</p> <p>The defendant, at the conclusion of the evidence, moved the court to dismiss the plaintiff’s cause of action, upon the ground that the same could not be maintained for that the plaintiff began an action on 22 May, 1906, in which it filed a complaint for the same cause of action now sued upon, and that at January Special Term, 1907, of Caldwell Superior Court, said plaintiff took a voluntary nonsuit, as appears from the judgment rendered in said cause; that in tbe complaints filed in tbe respective actions tbe same land is described and set forth and tbe same relief is asked, and that as more than twelve months have elapsed since tbe nonsuit was entered in tbe first-mentioned action up' to tbe time tbe present action was begun, to wit, about twenty-two months, all of which is shown by tbe records offered in evidence, that tbe present action is barred by tbe statute limiting tbe time in which a new action may be begun after a nonsuit has been entered, and that therefore tbe court should so bold and dismiss plaintiff’s action.</p> <p>Tbe court denied tbe defendant’s motion and held that tbe present action was not barred by tbe statute of limitations referred to, and declined to dismiss plaintiff’s action, and defendant excepted.</p> <p>Tbe defendant then, through bis attorney, stated in open court that under bis Honor’s ruling declining to bold that plaintiff’s action was barred and dismiss tbe same, that defendant would not contest before tbe jury tbe first and second issues submitted, as defendant, since plaintiff bad introduced its title and evidence'of location of tbe land, would not ask tbe jury to find that plaintiff has not located tbe land as claimed, but that defendant up to tbe conclusion of plaintiff’s evidence of location bad in good faith contested such, and that tbe only issue defendant desired to be beard upon was that as to damage.</p> <p>All of tbe trespasses complained of Occurred within three years prior to tbe commencement of this action.</p> <p>His Honor, in bis charge cm tbe issue of damage, among other things, said: “That after you determine what amount of damage tbe plaintiff has sustained, if you find that tbe plaintiff has sustained damage, by reason of tbe timber cutting of tbe defendants prior to 23 February, 1907 (tbe date of tbe ratification of chapter 320, Public Laws of 1907), then you will proceed to determine what actual damages tbe plaintiff has sustained by tbe cutting of timber since that date, if you find that it has sus-. tained any. If you shall find that tbe defendants have cut, felled, or removed any timber trees growing upon lands that you find to be plaintiff’s, without tbe consent of tbe plaintiff and with tbe intent to convert tbe same to- their own use, then you will double tbe actual damages wbicb you find tbat plaintiff has sustained, if any, by cutting of timber since 23 February, 1907, by defendants, and sucb sum, added to tbe amount of actual damage sustained by plaintiff by reason of timber cutting by defendants prior to tbe said 23 February, 1907, if you find tbat plaintiff sustained sucb damage prior to tbat date, will be your answer to tbe issue,” and tbe defendant excepted.</p> <p>Tbe jury rendered tbe following verdict:</p> <p>1. Is tbe plaintiff tbe owner of tbe-lands described in tbe complaint? Answer: Yes.</p> <p>2. Has tbe defendant trespassed upon tbe said lands by cutting and removing timber therefrom ? AnswerYes.</p> <p>3. What damage, if any, is plaintiff entitled to recover? Answer: $353.36.</p> <p>51,340 feet at $4, double damage. $205.36</p> <p>26,000 feet at $2 .... 52.00</p> <p>48,000 left in woods at $2 . 96.00-</p> <p>$353.36</p> <p>Judgment was rendered thereon, adjudging tbat the plaintiff was tbe owner of tbe land in Grant-No. 951 to G. N. Folk, and tbat it recover $353.36 damages and costs.</p> <p>Tbe defendant excepted and appealed.</p>

Justice Walker in proceedings in habeas corpus, from MecKlenbueg.

<p>1. Railroads — Rights of Way — North Carolina Railroad — Charter— Presumption of Grant — Developments—Interpretation of Statutes — Time.</p> <p>According to its charter provisions the North Carolina Railroad Company could acquire a right of way for its railroad by condemnation proceedings, and section 29 was intended to provide for instances where these proceedings had not been instituted and evidence of the consent of the owners had been lost or could not be produced. The charter should be interpreted as of the time the Legislature granted it, arid under the conditions then existing, and thus the provision therein that in the absence of a grant from the owner of the land, his right of action is barred if he fails to claim compensation within two years is valid, the statute raising a presumption of a grant of the land on which the road is located, together with a space of 100 feet on each side of the center of the track. B. B. v. Olive, 142 N. C., 273, cited and applied.</p> <p>2. Railroads — Rights of Way — Nonuser—North Carolina Railroad— Grant — Owners’ Inactivity — Presumptions — Interpretation of Statutes.</p> <p>When the owner of land over which the North Carolina Railroad has been run has remained inactive for a period of two years after its completion, a presumption, of a grant from the owner arises for the land on which the road is located, and for the width of the right of way provided by the charter.</p> <p>3. Same — Owner’s Improvements — Damages.</p> <p>Semille, that as the presumption of a grant by the owner to the North Carolina Railroad does not arise except in the absence of a contract, when permanent structures erected by the owner within 100 feet of the main line are used for a long time without objection, in localities where it was customary to acquire rights of way by purchase, less in width than 100 feet, the statutory presumption would not arise, when no evidence of a contract was introduced by either party; and damages for permanent improvements on the right of way made in good faith may be recovered when the right of way is subsequently taken for the use of the railroad.</p> <p>4. Same — Rights of Railroad.</p> <p>When the North Carolina Railroad Company has acquired, lands over which its road extends by reason of the presumption of a grant from the owner under the provisions of the statute, the subsequent use of an unoccupied part of the right of .way by the owner, or those claiming under him, cannot affect the right of the company thereto from time to time as the development of its business demanded.</p> <p>5. Same — Decision of Railroad.</p> <p>It rests in the judgment of a railroad company to determine the necessity for the use of an unoccupied portion of its right of way in the development of its business. R. R. v. Olive, 142 N. C., 273, cited and applied.</p> <p>6. Lessor and Lessee — North Carolina Railroad — Southern Railway — Right of Way — Nonuser—Occupation of Owner — Rights of Lessee.</p> <p>The lease by the North Carolina Railroad Company to the Southern Railway Company of its road, franchise, and rights of property, to be operated by the latter, is a valid one; and as the North Carolina Railroad has, under its charter, the right to an unused part of its right of way for laying a double track in the development of its business, the same right extends to the Southern Railway Company under the lease.</p>

, at Spring Term, 1911, of Watauga. Tbis is an action to recover damages for tbe death of tbe plaintiff’s intestate, caused, as it is alleged, by tbe negligence of tbe defendant. 4 Tbe facts, showing tbe nature of tbe controversy, are fully stated in tbe opinion on tbe former appeal in tbe action, reported in 153 N. C., 514. Tbe jury rendered tbe following verdict: 1.

Civil action to recover damages by reason of a collision caused by alleged negligence of defendant company.

, at July Term, 1911, of Mitchell. Civil action to recover a balance alleged to be due on a promissory note for $1,400. Issue prepared as follows: Are defendants indebted to plaintiffs, and if so, in what amount ? At the close of testimony, the court having intimated his intention to charge the jury that on the evidence, if accepted by the jury, they would answer the issue No, plaintiff excepted, submitted to a nonsuit and appealed.

, at May Term, 1911, of Catawba. Civil action to recover $246.77, an amount alleged to be due plaintiff for sawing lumber. There was denial of tbe debt to tbe amount alleged to be due. Tbe jury rendered a verdict and in favor of plaintiff for tbe amount claimed. Judgment on tbe verdict, and defendant excepted and appealed.

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

, at June Term, 1911, of Dukke. Civil action to recover damages for physical injuries caused by alleged negligence of the railroad company. There was evidence tending to show that on or about 15 July, 1908, plaintiff was injured while at work as an employee of defendant company by reason of a defective car being then used for hauling dirt in the construction of defendant road, and that the injury was attributable to the negligence of defendant.

, at February Term, 1911, of Ruthee-eoed. Tbis is an action to recover possession of a tract of land, wbicb was commenced on 30 December, 1909. The defendant denies the plaintiff’s title, but admits that he is in possession of a part of the land described in the complaint. Both parties claim under deeds from J. B. Ereeman,. the deed ■ under which the defendant claims being senior in date and registration.

, at July Term, 1911, of McDowell. Tbis is an action brought by the legatees of John Simmons, deceased, for the recovery of land alleged to have been purchased with money which the said Simmons bequeathed to his wife, Jane Simmons, for life, with remainder to the legatees named in his will.

, at May Term, 1911, of Buncombe. This action was brought by the plaintiff against the defendant to recover damages alleged to have been sustained by the plaintiff on account of tbe operation of a stone quarry by the defendant Philip S. Henry, on land belonging to the defendant and adjoining plaintiff’s land. An injunction was sought in the case against all the defendants, but damages claimed only as against the defendant Philip S. Henry.

, at September Term, 1911, of BitN-COMBE. Tbis is an. action to recover damages for personal injury. On 6 March, 1909, the plaintiff, who had been employed in the washroom of the defendant’s laundry for four years, was engaged by the defendant as repair man, repairing defendant’s machinery. He had been at this work about two weeks, when he was directed to extend a shaft so that another machine might be put in.

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

<p>1. Statute of Frauds — Promise to Pay Debt of Another.</p> <p>A promise is not within the statute of frauds requiring that it be in writing and signed, to bind the promisor to answer the debt of another, if -it is an original one based upon a consideration; and it is original, whether made before or at the time the debt is created, if the credit be given solely to the promisor or to both promisors as principals; or if it is based upon a new con.sideration of benefit or harm passing between the promisor and the creditor; or if it is for the benefit of the promisor and he has a personal, immediate, 'or pecuniary interest in the transaction, in which a third party is also, obligor.</p> <p>.2. Same.</p> <p>When the promise relied on to bind the promisor under the statute of frauds to pay the debt of another, does not create an. original obligation, and is collateral and merely superadded to tbe promise of another to pay the debt, who remains liable therefor, the statute applies and the second promisor is not liable upon his promise, unless it was reduced to writing and signed as required by the statute; and this is true whether his promise was made at the time the debt was created or afterwards.</p> <p>3. Same — Landlord and Tenant — Assertion of Tenant — Direct Interest.</p> <p>When a tenant of a farm has applied to a merchant to-furnish him with fertilizers for making the crop on the leased premises, saying that the landlord would pay for them, the assertion of the tenant will not of itself render the landlord liable; but if the latter, when called upon by the merchant at the time of the transaction, says, “All right, go ahead and furnish (the lessee) and I will see that you get the money,” his words may amount to a binding and sufficient promise under the statute of frauds, as he had a direct and pecuniary interest in the making of the crop as the landlord of the first promisor.</p> <p>4. Statute of Frauds — Landlord and Tenant — Joint Promisors — Evidence — Questions for Jury.</p> <p>In this case the question whether the landlord intended to become a principal with the lessee of his lands, in the debt for fertilizers furnished to make a crop thereon under his promise to see that the merchant got his money,' was fairly submitted to the jury under correct instructions of the court upon the evidence.</p> <p>5. Statute of, Frauds — Landlord and Tenant — “Promise” Relied on— Evidence.</p> <p>Evidence tending to show that a landlord, at the time of the transaction, promised a merchant furnishing his tenant fertilizers with which to make a crop on his land, that he would “see” that the fertilizer was paid for, is sufficient evidence to go to the jury as to whether the merchant relied upon the promise at the time it was made, and furnished the fertilizer upon the faith of it.</p> <p>6. Evidence — “Best” or Primary Rule — Book Entries — Parol Evidence — Collateral Matters — Competency—Harmless Error — Appeal and Error.</p> <p>In an action against the landlord and tenant for fertilizers furnished to the latter to make a crop on the leased lands of the former, seeking to hold the landlord answerable on his promise to “see” that the fertilizers were paid for, testimony of a witness for the plaintiff that the fertilizers were charged to both defendants, is competent: (1) The best or primary rule does not apply, for the book entries were not directly involved in the issue, and were not required to-be in writing by the statute of frauds; (2) it was irrelevant as to the tenant, and therefore harmless, and not having been objected to by the landlord, it is not reviewable on appeal as to him.</p> <p>7. Appeal and Error — Objections and Exceptions — Harmless as to One — Defendant.</p> <p>When there are two or more defendants and an exception to the admissibility of evidence is taken so that it does not appear by which one, it will not be held reversible error on appeal when it is harmless as to one of them. (Rule 27, 140 N. C., 495.)</p>

Adams, J., at January Term, 1911, of Halifax. Tbis is a caveat to a paper-writing which purports to be the last will and testament of ~W. T. Jenkins. Upon issues submitted to them, the jury found that the script and every part thereof is in the handwriting of the said Jenkins. It was unattested. The jury also found that the paper-writing, which had been proved in common form, is the will of W. T. Jenkins.

<p>Measure of Damages — Fear and Fright — Physical Suffering.</p> <p>In this action for damages alleged to have been caused by the negligence of defendant in blasting with loud noises near the plaintiff’s home and causing rocks and debris to fall on the premises, the question of damages was correctly limited by the charge of the court to such as were caused by the acts complained of, and not otherwise, excluding such as may have been occasioned from fear and fright alone, and which did not cause physical injury.</p>

, at July Term, 1911, of SwaiN. Tbe entire case on appeal is as follows: This is an action of ejectment against Taylor, tbe judgment debtor, by Beard, judgment creditor, tbe grantee óf tbe purchaser at tbe execution sale.

, at November Term, 1911, of BuNCOMBE. Civil action brought to recover damages for false imprisonment, assault and battery, and other wrongs alleged to have been received at bands of defendant’s agents. At conclusion of tbe evidence bis Honor sustained motion to nonsuit, and plaintiff appealed.

, at July Term, 1911, of BuNcombe. Tbis action was commenced on 16 November, 1903, and tbe complaint is as follows: • “1.

<p>1. Damages — Release—Mental Incapacity — Evidence—Husband and Wife.</p> <p>To set aside a release for damages for personal injuries received, on tlie ground that the plaintiff was suffering severely from the effects of his injury at the time of its execution and did not have sufficient mental capacity, it is competent for his wife to testify as to his mental incapacity then.</p> <p>2. Master and Servant — Dangerous Instrumentalities — Safe Place to Work — Appliances—Evidence—Nonsuit.</p> <p>Upon evidence tending to show that the plaintiff, an uninstructed and inexperienced man, was injured while blasting with dynamite in the employment of the defendant, using an iron tamping rod furnished him and the other employees, which resulted in the explosion causing the injury, a motion to non-suit should be denied.</p> <p>3. Damages — Release—Mental Incapacity — Pleadings—Sanity—Evidence — Estoppel.</p> <p>In an action for damages for a personal injury alleged to have been caused by the negligence of the defendant, the plaintiff sought to set aside a release from further liability, on the ground of his mental incapacity, caused by the injury, at the time of executing the release: Held, it was unnecessary for plaintiff to allege and prove sanity since that time to maintain his action, and the doctrine of estoppel would rather apply to defendant, who alleged his sanity at the time of the release.</p> <p>4. Negligence — Instructions—Confusing—Appeal and Error.</p> <p>When damages are sought for a personal injury alleged to have been negligently inflicted, a request for special- instruction on the question of contributory negligence is confusing and should be refused, which directs an affirmative answer, if the jury found as a fact that the plaintiff “was negligent in any degree.”</p> <p>5. Master and Servant — Dangerous Instrumentalities — Instructing Servant — Negligence—Evidence—Instructions.</p> <p>Upon the evidence in this case tending to show that plaintiff, an inexperienced man, was employed without instruction to blast with dynamite, using an iron tamping rod furnished him for the purpose, which caused the explosion inflicting the injury complained of: Held, not error to refuse a request for instruction, that if the jury believed the evidence to answer, in the affirmative the issue of contributory negligence.</p> <p>6. Release — Fraud—Evidence.</p> <p>Held, evidence sufficient to be submitted to the jury upon the issue of defendant’s fraud in obtaining a release for personal injuries alleged to have negligently been inflicted on the plaintiff, which tends to show that the plaintiff signed the release while greatly suffering from the injury, just after he had left the hospital where he had been for treatment; that his wife and brother were excluded from the room at the time; that he was ignorant and humble, unable to read and write; that he was without advice and counsel of friends, and thought he was signing a receipt for his wages; that the consideration was grossly inadequate.</p> <p>7. Master and Servant — Dangerous Instrumentalities — Contributory Negligence — Assumption of Risks — Burden of Proof — Evidence.</p> <p>An inexperienced servant was employed to blast with dynamite, and furnished with iron tamping rods for the purpose, the evidence tending to show that the use of these tamping rods caused the explosion causing the injury complained of. A charge Held correct, that “Unless the jury find by the greater weight of the evidence that the plaintiff knew of the great danger in using iron tamping rods, and voluntarily and willingly made up his mind to run the great risk incident to using the same, you will answer the issue ‘No,’ ” and that recovery would not be denied unless in the use of the tamping rod the apparent danger was SO' great that its assumption would amount to a reckless indifference to probable consequences.</p> <p>8. Master and Servant — Dangerous Instrumentalities — Assumption of Risks — Evidence.</p> <p>The servant assumes the risks ordinarily incident to his employment, but does not assume the risk from dangers which arise from the failure of the master to furnish reasonably safe and. suitable -fools with which to do the work required of him, unless in the careful performance of the work with the tools furnished the inherent probabilities of injury are greater than those of safety.</p> <p>9. Instructions — How Construed — “-Appeal and Error.</p> <p>When, construed as a whole, the charge of the trial judge is correct, a fragmentary part objected to will not be held reversible error.</p> <p>'10. Appeal and Error — Stenographer’s Notes — Contentions—Immaterial Matter — Costs.</p> <p>When, at the instance of a party, the trial judge sends up on appeal the contentions of the parties, not needed to enlighten the Court, and puts in a large part of the testimony in the form of stenographer’s notes instead of in narrative form, which was excepted to, the unnecessary matter will be estimated and taxed against the party at whose instance they were incorporated into the record on appeal.</p>

<p>Appeal and Error — Second Appeal — Motion to Rehear — Procedure.</p> <p>A second appeal on matters determined by a decision on a former appeal will not b.e considered, the procedure being in the Supreme Court by a motion to rehear.</p>

, at May Term, 1911, of Catawba. Tire plaintiff, at May Term, 1908, of Catawba Superior Court, obtained a judgment against J. 0. Moore, one of the defendants, for $300 and costs in a suit for damages for malicious prosecution. At tbe time the judgment was taken the defendant J. O. Moore owned a tract of land in Alexander County.

H. Allen, J., at Spring Term, 1911, of Tyr-eell. This action was brought to compel tbe specific performance of a contract to convey land, by tbe vendee against tbe vendor. Tbe memorandum is as follows: Received of W. E. Bateman $5, to confirm tbe bargain on tbe purchase of tbe farm on which I now live. This 8. January, 1910. (Signed) . E. B. Hopkins.

<p>Appeal by defendant from Lane, J., at June Term, 1911, of BubKE.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Claris.</p>

<p>Appeal by defendant from Cline, J., at March Term, 1911, of GRAHAM.</p>

, refusing to grant an injunction, beard at chambers, 27 November, 1911. From SwaiN. Civil action pending in the Superior Court of Swain County instituted for the purpose of obtaining a perpetual injunction forbidding the maintaining of a dam on Deep Creek or river and asking its abatement as a nuisance. His Honor denied the motion, and plaintiff appealed.

ActioN commenced in Superior Court of Swain County to enjoin defendant from erecting a dam for its electric light plant on Deep Eiver. The motion for a restraining order was heard by his Honor, Judge Webb, at chambers, and the motion denied. Plaintiff appealed.

, at September Term, 1911, of MadisoN. This is an action to recover damages for personal injuries. The plaintiff, at the time of Ms injury, was employed as an engineer by tbe defendant, a corporation, engaged in the manufacture of lumber, and operating in connection therewith a logging road.

, at September Term, 1911, of BuNCOMBE. This is a proceeding by R. L. Luther and S. J. Luther against.

Civil action to recover damages for the death of William Gray Haynie, plaintiffs son, killed while in the employ of the defendants, who were constructing a dam across French Broad River. At the close of the evidence for 'plaintiff a motion to nonsuit was sustained, and from the judgment rendered the plaintiff appealed.

, rendered in habeas corpus proceedings 2 August, 1911, from BuNcombe. This is a proceeding in habeas corpus instituted by tbe petitioner, William F. Alderman, to determine tbe custody of Hugh Alderman, tbe infant son (4 years of age) of petitioner and bis former wife, tbe respondent, Sarab E. Alderman, wbo now resides witb ber child at Brevard, North Carolina.

, at October Term, 1911, of Oum-BEBLAND. Civil action, beard on case agreed. On tbe bearing- it was properly made to appear: 1. That tbe General Assembly of North Carolina, at its regular session of 1911, passed and ratified an act, tbe same being-chapter 591 of tbe Public Laws of 1911, which act, as well as that which it purports to amend, to wit, chapter 8 of the Public Laws of 1855, are hereby referred to and made a part of these facts agreed. 2.

Tbis action was brought to recover damages for the death of plaintiff’s intestate, which is alleged to have been caused by the negligence of the defendant.

, at May Term, 1911, of Iredell. This action was brought by the plaintiff to recover damages for the death of his son, which is alleged to have been caused by the negligence of the defendant. The intestate of plaintiff, his 6-year-old son, was tilled by an electric shock received from a loose' guy wire, suspended from a pole on which was struifg the wires supplying defendant with power to run its cotton mill. This pole was on defendant’s property and belonged to it.

<p>1. Appeal and Error — Executors and Administrators — Account and Settlement — Reference—Findings—Attorneys’ Fees.</p> <p>When fees for attorneys employed by an administrator are found as a fact by a referee to have been unnecessary, and this finding has been approved by the judge of the lower court, the ruling of that court will be approved on appeal, when there is evidence to support it.</p> <p>2. Same — Employees—Commissions.</p> <p>Upon petition of an administrator for a final account and settlement, an answer was filed by the heirs at law and distributees, and the matter referred. The referee found that the clerk’s allowance to the administrator was a commission of $10,000, expenditures for clerks’ and attorneys’ fees $8,000, or over 16 per cent of the total receipts: Held, (1) five per cent is the limit allowed by law, within which the compensation should be proportioned according to the services rendered and in consideration of all the facts and circumstances; (2) the e® parte allowance'by the clerk is not conclusive; (3) in this case an allowance to the administrator of 4 per cent upon the receipts and 2% percent upon the disbursements, approved by the judge, will not be disturbed on appeal.</p> <p>3. Executors and Administrators — Final Account and Settlement— . Personal Liability — Wagering Contracts — Burden of Proof — Interpretation of Statutes.</p> <p>A petition by an administrator,for a final account and settlement was resisted by the heirs at law and distributees, and the matter referred. In their answer, the defendants alleged that certain notes, valid on their face, were given for a gambling contract in cotton futures, and should not have been paid: Held, the provisions of Revisal, sec. 1691, do not apply so as to place the burden of proof on the administrator to show that the notes were given for a valid contract requiring the actual delivery of the .cotton; and an exception by the defendant to the report of the referee in holding the payment of the notes a valid disbursement will not be sustained in the absence of any findings as to the nature of the contract for which they were given.</p> <p>4. Executors and Administrators — Insurance Policy as Collateral— Payment of Premiums — Loss to Estate — Personal Charge — Rule of Prudent Man.</p> <p>A finding by a referee, confirmed by the judge, that an administrator paid, in good faith, under the rule of the prudent man, premiums on a life insurance policy held as collateral to a note given the deceased, and which ultimately resulted in loss to the estate, will, upon supporting evidence, be upheld on appeal, and the administrator allowed credits for the amounts he has thus paid out.</p> <p>5. Executors and Administrators — Management of Estate — Personal Liability — Appeal and Error.</p> <p>Upon the findings of fact by the referee, confirmed by the judge, in this case, as to the administrator’s management and sale of a distillery interest and liquor belonging to the estate, the defendant’s exceptions of law cannot be sustained.</p> <p>6. Executors and Administrators — Clerk Hire — Commissions.</p> <p>Ordinarily administrators should not be allowed for the expenses of a clerk and bookkeeper, so as to increase the amount of the commissions beyond that allowed by the statute.</p> <p>7. Executors and Administrators — Commissions—Counsel's Fees.</p> <p>While allowances to administrators for counsel fees should be carefully scrutinized by the court, the report of the referee, confirmed by the court, in this case, allowing fees of $1,000 as not being excessive under the conditions disclosed, is sustained.</p> <p>8. Executors and Administrators — Final Account — Personal Liability — Answer—Nature of Action.</p> <p>When in answer to a petition by an administrator for an account and settlement, the heirs and distributees seek to charge the administrator personally with debts he has charged against the estate, the action becomes one personally against the administrator, and as to such things he is not entitled to an attorney’s fee for professional legal services rendered therein.</p> <p>9. Same — Partial Recovery — Costs — Statement—Reformation—Interest.</p> <p>In this action, in the nature of one to personally charge the administrator with certain debts of the estate, there was final recovery of about $6,000 in excess of the sum the administrator admitted to be due; and all costs should be taxed against him but for the fact that the heirs and distributees unsuccessfully sought to recover further and larger sums; it is adjudged that the cost of the litigation be divided between the parties and that the account of the administrator be reformed, and that Interest be charged on the correct amount due by him from the date of his filing his report.</p> <p>10. Appeal and Error — Unnecessary Matter — Stenographer’s Notes —Cost,</p> <p>Upon objection duly entered to tile sending up on appeal of the stenographer’s .notes with questions and answers, instead of in a narrative form, the unnecessary additional pages thus made will be taxed against the party at whose instance it is done.</p>

<p>1. Insurance — “Adjoining and Communicating Additions” — Property Insured — Parol Evidence — Interpretation of Policy.</p> <p>In an action by a sanitarium company for loss under a policy of fire insurance on its “two-story frame metal-roof building, with adjoining and communicating additions, etc.,” recovery was resisted on the grounds that the policy did not cover a cottage about 15 or 20 feet from the main building, as it was not an “adjoining or communicating addition”: Held, (1) evidence was competent to fit the cottage to the description in the policy which tended to show that the cottages contained rooms for the patients of the sanitarium who were, under certain circumstances, treated in these rooms; that all were under the same management and that there were call-bells from each of these rooms which communicated with the main building, and that all had the same system of sewerage and water pipes; (2) that the cottages would come within the descriptive terms of the policy as a matter of law; (3) that testimony that the cottages were insured in separate and distinct amounts in another policy would relate to the weight óf the testimony and not to its competency.</p> <p>2. Insurance, Fire — Title—Evidence—Issued to “Insured” — Possession.</p> <p>Evidence that the policy of insurance “was issued to the insured,” and that the insured was in possession and control of it, is sufficient upon the question of the plaintiff’s title, in his action to recover damages from fire to his property on his policy of insurance, and conclusive unless in some way questioned or impeached.</p>

Appeal by defendants from Gouncill, J., at April Term, 1911, of Pole. Tbe facts are sufficiently stated in the opinion of the Court by Mr. Justice Walicer. This was an action of trespass qua/re clausum fregit. The plaintiffs relied upon color of title and adverse possession. The defendants introduced a grant from the State, which covers the locus in quo, but' did not connect themselves with it, so that it had the effect only of showing that the title was out of the State.

, at August Term, 1911, of SampsoN. Civil action. These issues were answered by the jury: 1. Did the defendant* wrongfully fail and refuse to furnish the cars ordered by him to move his cordwood from the siding between Mints and Parkersburg, as alleged? Answer: Yes. 2. What damage, if any, has plaintiff sustained? Answer: $250. From the judgment rendered the plaintiff and defendant both appealed.

Civil action to recover damages or premiums paid on a policy of life insurance issued by the defendant company. These issues were submitted: 1. Was the application for the policy of insurance on the life of Harriet Groves, wife of Henry Groves, procured by the false and fraudulent representations of the defendant’s agent, as represented? Answer: Yes. 2. Did the plaintiff waive ber right to rely upon said fraudulent representations? Answer: No. 3.

, at July Term, 1911, of MoDowell. Civil action for personal injury. The action' was brought to recover damages for personal injury received from a piece of rock striking plaintiff in the eye while driving crushed ballast under the railroad ties with a tamping pick. His Honor sustained defendant’s motion to nonsuit and dismissed the action. Plaintiff appealed.

-, at Spring Term, 1911, of Watauga. Civil action beard upon exceptions to tbe report of J. C. Fletcber, referee. Tbe reference was by consent. Exceptions were filed by plaintiff.

H. Allen, J., at May Term, 1911, of Beau-FOR.T. Civil action beard upon tbe report of Referee C. H. Harding, upon exceptions filed by both parties. The original reference was compulsory as to plaintiff, but on the hearing before the Superior Court a trial by jury was waived and by consent the judge passed upon the exceptions to the findings of fact by referee as well as upon his conclusions of law.

, at Spring Term, 1911, of MagoN. Tbe plaintiff alleges in its complaint that on 2 May, 1908, the defendant executed his five notes, by which he promised to pay the plaintiff, in the aggregate, $987.84, and that on the same day he executed certain chattel mortgages to secure the payment of the same.

Appeau from Garter, J., at May Term, 1911, of Buktcombe. Civil action. These issues were submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? 2. Was the plaintiff guilty of negligence which contributed to his said injury? 3. Did tbe plaintiff assume the risks of being injured at the time mentioned, as alleged in the answer? 4. What damages, if any, has the plaintiff sustained ?

, at January Term, 1911, of Haywood. Tbe facts are sufficiently stated in the.^er curiam opinion of tbe Court. Civil action beard on exceptions to report of referee. From rulings of bis Honor, modifying report, and judgment tbereon as modified, R. D. Gilmer, trustee, excepted and appealed.

, at May Term, 1911, of JacxsoN. These issues were submitted to tbe jury: 1. Was tbe plaintiff injured by tbe neg-ligence of tbe defendant, as alleged? Answer: Yes. 2. Did tbe plaintiff, by bis own negligence, contribute to bis own injury? Answer: No. 3. Wbat damage is plaintiff entitled to recover? Answer: $6,000. From tbe judgment rendered tbe defendant appealed.

<p>Appeal and Error.</p> <p>The questions in this case of color of title, adverse possession, and competency of evidence: Hold, to have been decided correctly in the court below, and no error is found:</p>

<p>1. Rape — Assault with Intent — Assault on Woman — Interpretation of Statutes — Proviso—Age—Indictment—Allegations—Defense.</p> <p>By statute, Revisal, 3620, as amended by the Laws of 1911, ch. 193, the punishment for “assaults, assaults and batteries, etc.,” is limited to a fine not exceeding $50 or imprisonment of thirty days in certain instances: Provided, among other things, that it shall not apply to an assault by a man, or by a boy over eighteen years of age, upon a woman: Held,, it is for the defendant, charged with an assault upon a woman, to show that he was under the age specified in order to except his case from the proviso, and it is not necessary to the validity of the bill that it state that he was over that age, as an assault upon a woman is a crime without regard to the age of the person who commits it, and the age merely relates to the degree of punishment and is not an element or ingredient of the offense charged.</p> <p>2. Same — Habeas Corpus.</p> <p>The prisoner was convicted and sentenced to the county jail for a term of two years and assigned to work on the public roads under the provisions of Revisal, sec. 3620, for assaulting a woman. After submitting to his sentence and serving thirty days of it, he sued out a writ of habeas corpus, claiming that the sentence was excessive, on the ground that the bill of indictment had not alleged that he was more than eighteen years of age at the time of the commission of the offense, and therefore, having worked out his lawful sentence, he should be discharged. The court construes together Revisal, sec. 1427, relating to the jurisdiction of courts of justices of the peace in their counties, when no deadly weapon is used; section 326S, providing that “on a trial of any person for rape, when the crime charged shall include an assault upon the person,” and there is a conviction of the less offense, “the court shall have power to imprison the defendant, if found guilty of an assault, for any term now allowed in cases of conviction when the indictment was originally for an assault of like character,” and said section 3620, and holds that, upon conviction of a simple assault and battery upon a woman, without alleging an intent to commit rape, the prisoner, over the age of eighteen years, can be punished at the discretion of the court, without any allegation in the bill as to his age, it being a matter for him to show, if the fact existed, that he was not over the age specified, which, if proven, would except him from the general provisions of section 3620.</p> <p>3. Rape, Assault on Woman — Intent—Allegations—Age—Indictment —Defense—Interpretation of Statutes.</p> <p>When an indictment charges an assault with the intent to commit rape, the prisoner may be convicted of an assault upon a woman (Ilevisal, sec. 32GS) ; and if it is found that he was over eighteen years of age at the time the offense was committed, he may be punished as for an aggravated assault, whether his age is stated in the indictment or not. Eevisal, secs. 3268, 3620.</p> <p>4. Assault — Indictment—Conviction of Less Offense — Issues—Punishment.</p> <p>Under a bill of indictment charging an assault with an intent to commit rape, the lesser offense of assault and battery may be found to have been committed, and in such instance a special issue may be submitted to the jury, if necessary, so that, in accordance with the jury’s finding, the court may determine the grade of the punishment.</p> <p>5. Indictment — Assault — Rape — Jurisdiction Concurrent — Magistrate's Cognizance — Burden of Proof.</p> <p>It is not necessary for a bill of indictment charging assault with a deadly weapon, or with intent to commit rape, to show affirmatively the jurisdiction of the Superior Court, when that court and a justice’s court have concurrent jurisdiction, if the latter court had not “proceeded to take cognizance of the crime within twelve months after its commission”; for it .is for the defendant to show, as matter of defense, the fact that jurisdiction had been thus taken. Revisal, sec. 1427.</p>

, at March Term, 1911, of Ala-MANCE. The defendant was indicted in the court below for the larceny of a mule, the property of Walter Sbepberd.

<p>Appeal by defendant from Daniels, J., at November .Term, 1911, of BowaN.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

<p>1. Indictment — Mutilation of Records — Tax List — Register of Deeds.</p> <p>An indictment charging that defendant “did unlawfully, willfully, and corruptly, and with fraudulent intent and purpose, take from the office of the register of deeds . . . the tax books” for a certain year, the books having been deposited in the register’s office as ordered by law, and “did unlawfully, maliciously, willfully, and fraudulently obliterate, injure, and change the said tax book” for the certain year, “a record required to be kept by the register of deeds,” is within the terms of Revisal, 350S.</p> <p>2. Same — Tax Book — Record — Indictment — Interpretation of Statutes.</p> <p>The tax book of the register of deeds is a book of records required to be kept by the register of deeds, and it falls within the meaning of Revisal, 3508, making it an indictable offense under the conditions therein stated for their obliteration, etc.</p> <p>3. Same — Register of Deeds — Clerk to Board County Commissioners —Interchangeable Positions — Interpretation of Statutes.</p> <p>The register of deeds is etc officio clerk to the board of county commissioners (Revisal, 2666), and the two positions are not separate offices, but used interchangeably in the statute (Revisal, 5238, 5239, 5240), and it is provided (Revisal, 5237) that the tax book to be made out by the register of deeds “shall remain in the office of” the clerk of the board of commissioners, and Held, a charge of an unlawful, etc., obliteration of the tax books required to be kept by the' register of deeds meets with the requirements in that regard of Revisal, 350S.</p> <p>4. Register of Deeds — Copy of Abstract to Auditor — Requirements.</p> <p>The register of deeds is not required to keep in his office a copy of the abstract from the tax book which the statute directs him to send to the State Auditor.</p> <p>5. Register of Deeds — Tax Books — Township Totals — Mutilation— Indictment — Interpretation of Statutes.</p> <p>While the statute does not require the total tax for each township to be put in the tax book or record, of the computation of taxes for a county, it is a customary and convenient practice, and when such has been done, á mutilation or change of the totals on the record falls within the meaning of Revisal, 3508, and is an indictable offense when its provisions have been violated; besides, objections, in this respect, relate to matters of proof and not to the sufficiency of the indictment.</p> <p>6. Indictment — Tax Books — Register of Deeds — Mutilation—Township Totals — Auditor’s Abstract — Parol Evidence.</p> <p>Upon a trial under an indictment of a deputy sheriff for changing the township totals of taxation for fraudulent purposes respecting a settlement thereof, testimony of a witness to the effect that the abstract which he made and sent to the Auditor was a correct copy from the tax list, and that the books now show a mutilation and change of the tax lists as to these township totals, amounting to a certain sum, which the defendant is charged with drawing from the bank of deposit for his own use, is competent, as the abstract sent the Auditor was made from unchanged items and could in no wise be affected by the alteration of the township totals.</p> <p>7. Same.</p> <p>An abstract made by a witness for the State Auditor from the tax list is but a written declaration of the witness which he at one time made as to the amount of the unaltered totals, and it is not necessary that this abstract be produced under an indictment for violation of Revisal, 3508, for the witness to state the township totals therein, for he may now testify what the total was, the parties being entitled to produce the abstract in corroboration or rebuttal, as the case may be, and in this case the addition of the unaltered items was introduced, from which the jury could ascertain whether the totals were correct or not.</p> <p>8. Indictment — Mutilation of Records — Tax Books — Defalcation of Sheriff — Evidence.</p> <p>Evidence that a deputy sheriff altered the township totals of taxation taken from the tax book and drew the difference in gold from the bank in order that his defalcation might not be traced to him, is simply that of a circumstance competent for what it is worth, as tending to show illegality and fraud, under indictment for violating the provisions of Revisal, 3508.</p> <p>9. Same — Character Witnesses — Cross-examination.</p> <p>A deputy sheriff was indicted for unlawfully mutilating the township totals of taxation (under Revisal, 350S) made out by the register of deeds and in his office, in order to conceal his defalcation: Held, competent on cross-examination of defendant’s witness, for him to state that he had threatened the defendant with proceedings before a Superior Court judge before he would show his books or state the amount he had paid over, and it was not objectionable.as an attack on the good Character of the witness by proving specific acts of misconduct.</p> <p>10. Same.</p> <p>The cross-examination of a character witness is not restricted to the matter brought out on the direct examination, and in this case it was held competent for the State on cross-examination to bring out the fact as an incriminating circumstance, that the defendant, indicted under Revisal, 3508, twice refused to show his books to proper authority, or disclose the tax fund he had paid over, until threatened with legal proceedings.</p> <p>Beown, J., dissenting; Allen, J., concurring in dissenting opinion.</p>

<p>1. Statute — Police Powers — Local Application — Constitutional Law.</p> <p>Public-local acts, passed by the Legislature in the exercise of police power, which apply only to police regulation, are valid.</p> <p>2. Same — Game Laws — Quail—Closed Season — Bird Dogs at Large.</p> <p>A statute enacted to protect the game birds of a certain county is a valid exercise of the police powers of the State, within the discretion of the Legislature, and hence there is no constitutional objection to an act which makes it “unlawful for any one to permit his or her setter or pointer dog to run at large during the closed season for quail,” applying to a designated county alone.</p> <p>3. Constitutional Law — Government—Co-ordinate Branches — Powers —Legislature.</p> <p>Under the State’s Constitution the executive and judicial departments are grants of power, but the Legislature exercises all power which is not forbidden by the Constitution.</p> <p>4. Constitutional ‘Law — Statutes—Game Laws — Closed Season— Dogs at Large — Cruel and Unusual Punishments.</p> <p>A statute which makes it unlawful for the owners of bird dogs to permit them to run at large during the closed season for quail in a certain county, making the offense punishable by fine or imprisonment, is not objectionable on the ground that our Constitution forbids “cruel and unusual punishment.”</p> <p>5. Constitutional Law — Statutes—Punishment—Legislative Discretion — Judiciary—Excessive Punishment.</p> <p>Section 1-1, Article I of our State Constitution restricts the judiciary from imposing excessive punishments where the Legislature has not prescribed a fixed maximum, and does not apply to the legislative power to impose the penalty for acts made an offense by them. •</p> <p>6. Statutes — Alternate Punishments — Discretion of Courts — Leniency — Appeal and Error.</p> <p>When .a statute makes certain acts an offense and punishable by “fine and imprisonment,” the trial judge may impose either punishment or both; but if it were otherwise, a defendant has no ground for appeal that both sentences were not imposed on him.</p>

, at July Term, 1911, of MoDowell. Indictment for unlawfully manufacturing spirituous liquors. There was a verdict of guilty. After verdict, defendants moved in arrest of judgment. The bill is as follows: State oe Nobth OaeoliNa — .County. Superior Court,.Term, 191. .

<p>1. Homicide — Murder in First Degree — Answer to Issues.</p> <p>Our statute on tlie subject peremptorily requires that before sentence of death may be pronounced, the trial jury shall determine in their verdict that the prisoner is guilty of murder in the first degree (Revisal, sec. 3271), and our trial courts should always require that verdicts in capital cases definitely and expressly state the degree of murder of which the prisoner is convicted, and the verdict should be recorded as rendered.</p> <p>2. Homicide — Murder in First Degree — Defense—Drunkenness— Premeditation.</p> <p>While voluntary drunkenness may not be considered as a legal excuse for a crime, the principle is not allowed to prevail where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature of the crime charged.</p> <p>3. Same — Instructions—Appeal and Error.</p> <p>Our statute dividing the crime of murder into two degrees requires that for conviction in the first degree there<must be deliberation and premeditation, or a purpose to kill previously formed after weighing the matter, and when the defense properly arises under the evidence, it' is reversible error for the trial judge to refuse to instruct the jury, even in cases of voluntary drunkenness, that if the prisoner was so drunk that he could not form or entertain the essential ingredients of deliberation and premeditation, as stated, they should answer the issue as to murder in the first degree in the prisoner’s favor.</p> <p>4. Homicide — Murder in Second Degree — Manslaughter—Defense— Drunkenness.</p> <p>The elements of deliberation and premeditation not being required as to murder in the second degree, or manslaughter, the defense of drunkenness is not an available plea thereto.</p>

, at October Term, 1911, of Hendee-SON. The defendant was convicted upon the following bill of indictment : “The jurors for the State, upon their oaths, do present: That M. N. Corbin, late of the county of Henderson, on 10 July, in the year of our Lord one thousand nine .hundred and eleven, with force and arms at and in the county aforesaid, unlawfully and willfully did defile, corrupt, or pollute a creek, the source of a public water supply used for drinking purposes in the…

, at August Term, 1911, of Macon. Indictment for seduction. There was verdict, “Guilty.” Judgment, and defendant excepted and appealed, assigning for error the fact appearing of record, that with other letters, complete in form and tending to establish guilt, the court, over defendant’s objection, admitted a portion .of a letter containing relevant admissions of defendant, the remaining portions of the letter having been lost or destroyed.

Indictment for housebreaking under section'3333 of Revisal. There was a verdict of guilty. Tbe court sentenced defendant to three years on tbe roads. Defendant appealed.

<p>1. Murder — Premeditation—Evidence.</p> <p>Upon a trial for murder, evidence that- the prisoners, a man and a woman, were heavily drinking, that they fired a gun, having procured shells for the jrarpose, indiscriminately at houses along the road, to the fear of the occupants and those whom they met; that the male prisoner made threats against the life of the deceased, concurred in by the woman, who afterwards identified and pointed out the deceased, whereupon the male prisoner killed him with the gun he was carrying, is sufficient, upon the question of premeditation to sustain a verdict of murder in the first degree.</p> <p>2. Murder — Instructions—Collateral Matter — Prayers Refused — Substantial Compliance.</p> <p>Upon evidence tending to show that the prisoners, a man and woman, tried for murder, had been drinking heavily and were selling whiskey; that the' male defendant assaulted a person v'ith brass knucks, and afterwards unlawfully killed another person, the deceased, with a gun he was carrying, a charge of the court which clearly states for what offense the prisoners were tried, restricting the trial to that for murder, is a substantial compliance with a requested prayer for instruction, “that the prisoners were not on trial for selling -whiskey nor for making an assault with the knucks as independent facts,’* and that the jury should not consider this evidence in arriving at their verdict.</p> <p>3. Murder — Deadly Weapon — Second Degree — Presumptions—Instructions.</p> <p>The killing of a human being with a deadly weapon raises the presumption of murder in the second degree, and a request for instruction which assumes a less offense, under conflicting evidence, should be refused.</p> <p>4. Murder — Motive—Burden of Proof.</p> <p>The burden is not upon the State to show the motive of one aiding and abetting the committing of murder by another, when the evidence is otherwise sufficient, though the case may be strengthened by showing motive when the evidence is circumstantial.</p> <p>5. Instructions — Contentions Stated by Judge — Appeal and Error.</p> <p>It is the duty of the court to state the contentions of the parties which are supported by the evidence, and his thus doing so is not error.</p> <p>Bbown, J., dissents.</p>

<p>1. Recorder’s Courts — Jurisdiction Exclusive — Legislative Powers— Corporate Limits — Constitutional Law.</p> <p>Section 27, Article IV of the State Constitution, as modified by-section 14 of the same article, authorizes and empowers the Legislature to establish special courts in cities and towns and give them exclusive jurisdiction of misdemeanors committed within the corporate limits.</p> <p>2. Same.</p> <p>An act creating a recorder’s court for an incorporated town, conferring exclusive jurisdiction over offenses cognizable in courts of a justice of the peace, is void in so far as it seeks to extend the jurisdiction and make the same exclusive as to such offenses committed in the township beyond the .corporate limits of the town.</p>

, at August Term, 1911, of Buitcombe. Criminal action tried on appeal from police court of the city of Asheville. It appeared that defendant was arrested, tried, and convicted on a warrant issued by the police judge of said city, and the testimony showed a violation by defendant of an ordinance of the city in terms as follows: “Sec. 773.

<p>Appeal from Biggs, J., at April Criminal Term, 1911, of MECKLENBURG.</p> <p>Indictment for violation of tbe insurance laws. Tbe bill of indictment was as follows:</p> <p>“Tbe jurors for tbe State, upon tbeir oatbs present, that J. J. Arlington, late of Mecklenburg County, on tbe 29tb day of March, 1911, with force and arms at and in tbe said county, unlawfully and willfully did assume to act as an insurance agent "for tbe 'Order of Owls’; tbe said J. J. Arlington representing tbe said 'Order of Owls’ to be a fraternal insurance order or company, having a sick and accident benefit of $6 per week and a death benefit of $100; and tbe said J. J. Arlington assuming to so act as an insurance agent by soliciting B. S. Davis, B'. C. Goldberg, and others to tbe jurors unknown, to become members of the said 'Order of Owls’ by keeping open an office and place of business in Charlotte, N. O.; by advertising in tbe Charlotte Daily Observer and other papers to tbe jurors unknown; by using printed cards and other methods of advertisement; by receiving from B. S. Davis and other persons to tbe jurors unknown tbe sum of $5 each as initiation fee in tbe said 'Order of Owls,’ tbe said ‘Order of Owls’ not being an insurance company lawfully licensed and authorized to do business in North Carolina, and tbe said J. J. Arlington having no license to act as an insurance agent, contrary to tbe form of the statute in such case made and provided, and against tbe peace and dignity of tbe State. And tbe jurors for tbe State, upon tbeir oatbs, do further present that at and in said county, on tbe day and year aforesaid, tbe said J. J. Arlington did engage in tbe negotiation of unlawful insurance for and with tbe 'Order of Owls,’ a foreign fraternal insurance order or insurance company, not admitted nor licensed to do business in tbe State of North Carolina, by soliciting B. S. Davis, B. 0. Goldberg, and other persons to tbe jurors unknown, to become members of tbe said 'Order of Owls’; by soliciting from tbe said B. 0. Goldberg, B. S. Davis, and others to tbe jurors unknown, tbe payment of initiation fees, and by the receipt of the said initiation fee from B. S. Davis and other persons to tbe jurors unknown, contrary to tbe form of tbe statute in such case made and provided and against tbe peace and dignity of tbe State.”</p> <p>. There was verdict of “Guilty:” Judgment, and defendant excepted and appealed.</p>

, at July Term, 1911, of Foksyth. Criminal action for taking unlawful interest, tried on appeal from tbe municipal court.