Volume 158 — North Carolina Reports

<p>This is a petition to rebear tbis canse/reported in 153 N. C., 232, where tbe facts are fully stated.</p>

, at April Term, 1911, of DavidsoN. Civil action, beard on motion to remove tbe cause to Circuit Court of United States for Western District of North Carolina. There was judgment that the cause be removed, and plaintiff excepted and appealed.

<p>1. Insurance — Policy Contracts — Meaning Plain — Ambiguity—Interpretation.</p> <p>Wlien the terms of a policy of insurance are expressed in language free from ambiguity or doubt as to their meaning,, there is nothing left to construction and the policy will be enforced against the insured, in accordance with its plain meaning and intent, as it is written, unless fraud or public policy should intervene.</p> <p>2. Insurance — Accident—Policy Contracts — Independent and Direct Cause — “Proximate Cause” — Interpretation of Contracts.</p> <p>When under the express terms of a policy of insurance the insurer is only liable when an injury results from accidental means “directly and independently of all other causes,” the rule of proximate cause, as applied to actions of negligence, will not apply, and the plaintiff, in his action on the policy, cannot recover, under the contract, if some other cause than the policy specifies is also and independently instrumental in producing the injury complained of.</p> <p>3. Same — instructions.</p> <p>In an action upon an accident insurance policy for the loss of an eye, the policy provided that the insurance should only be “against bodily injuries effected, directly and independently of all other causes, through external, accidental, and violent means.” There was evidence tending to show the loss of the eye was through an accident to plaintiff in falling from a train, and, also, that the plaintiff, at the time of the alleged injury, had a cataract on that eye which would have resulted eventually in destroying it. A charge held correct, that if the jury find that the' plaintiff fell from the car and was thereby injured, and that this injury was soon thereafter followed by loss of sight, and that the condition of the plaintiff’s eye at that time was such that, independent of the injury, he would have ultimately lost his sight, which falling from the car merely hastened, he could not recover.</p>

, at Fall Term, 1911, of Camden. This ease was beard in the court below upon tbe following ease agreed: Chapter 345, Private Laws of 1911, provides for the submitting to a vote of the people of the district the question of additional school tax, and the borrowing a sufficient amount to erect a building, not to exceed $5,000, “for the whites in the School District No. 19.” The patrons of School District No. 19, as set out in said chapter, applied to the Board of County…

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

, from Haywoód, and by consent beard and determined at Bryson City, 23 October, 1911. Civil action to obtain mandamus directing tax collector, etc., to pay moneys realized by sale of bonds, etc., collected for school purposes, to plaintiff as treasurer of board of graded-school trustees. There was judgment for plaintiff, and defendant excepted and appealed.

<p>Appeal by plaintiff from Gline, J., at Spring Term, 1911, 'of Clay.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

, and a jury, at July Term, 1911, of McDowell. Civil action to recover on a judgment rendered in favor of plaintiff against defendant in tbe courts of South Dakota. Plaintiff declared on a judgment in her favor, rendered in the courts of South Dakota, said courts having at the time jurisdiction of the cause and of the parties by personal service within that jurisdiction.

<p>Appeal by both parties from Cline, J.,' at Spring Term, 1911, of MacoN.</p> <p>The facts are sufficiently stated in tbe opinion of the Court by Mr. Chief Justice Ciarle.</p>

, at March Term, 1911, of SwaiN. This action was brought to recover the purchase price of lumber sold by the plaintiff to the defendant, and the question to be decided is whether the sale was executed or executory. The contract, as plaintiff alleged, was for the sale of oak, chestnut, and poplar lumber, except the chestnut culls, the “cull lumber” having been theretofore sold to Mr. Wilbar, as explained to defendant, who was to pay for the lumber $12 per thousand feet.

, at April Special Term, 1911, of Bowak. This action was brought to set aside certain conveyances of real estate' executed by the insolvent defendant, H. C. Lentz, to his wife, Mary A. Lentz, on the ground that they were made in fraud of creditors. On 7 May, 1904, defendant H. 0. Lentz, as principal, with H. T. G-raeber, J. L. Eendleman, J. M. Eddle-man, W. Gr.

, at October Term, 1911 of Wake. This is a proceeding for mandamus to compel tbe defendant board to admit plaintiff to the office of Superintendent of Health of Wake County and to compel the said board to audit his accounts for services. The judgment was rendered denying the relief prayed and dismissing the proceedings. This cause coming on to be heard by me in chambers at Raleigh, Thursday and Friday, November 23 and 24, 1911.

, at July Special Term, 1911, of RutJIEREORD. This action was brought by the plaintiff to recover one-half the cost of erecting a party wall on the line dividing the lots of the parties.

<p>1. Tenants in Common — Partition—Parties—Decree—Waiver.</p> <p>Those who have an interest as tenants in common in lands to be divided in proceedings for partition, and whose names appear as parties in the proceedings without service of process and without their authority, are not in law parties to the proceedings, and the mere expression of their willingness or consent at the time will not bind them by an adjudication therein, when it does not appear that, by their acts, they have prejudiced the other parties or the purchaser of the lands at a sale for division, or that they have done something which creates an estoppel upon them.</p> <p>2. Tenants in Common — Partition—Decree—Partial Division — Interpretation of Statutes.</p> <p>Upon motion made by tenants in common to set aside the judgment rendered in proceedings in partition wherein a sale had been made of the property, it is reversible error for the trial court, upon finding that the sale was necessary to the interest of the tenants, to adjudge that the purchaser at the sale, which had not been confirmed, was a tenant in common with one who had not been bound by the former judgment, the former having bid for the interests of all except those of the latter; for the statute authorizes only a partition of the whole, and the provisions of Revisal, sec. 2506, have no application.</p> <p>3. Tenants in Common — Partition—Sale—“Preferred Proposer”— Confirmation.</p> <p>The highest bidder at a sale of lands in proceedings for partition by-tenants in common cannot be an innocent purchaser until the sale is confirmed by the court, and until it is, the bidder is only regarded as a “preferred proposer,” and is presumed to know that his bid is subject to the condition of its acceptance or rejection by the court.</p> <p>4. Tenants in Common — Partition—Void Conveyances — Confirmation.</p> <p>A deed made by a commissioner to sell the lands in proceedings for partition among tenants in common is invalid unless the sale has been confirmed by the court, or the parties have otherwise become bound by it.</p> <p>5. Tenants in Common — Partition—Decree—Parties.</p> <p>A deed by a commissioner to sell lands for partition among tenants in common, though the sale had been confirmed by the court, will not bind one of tbe tenants wbo bad not been made a party to tbe proceedings or waived bis rights; for in the absence of a necessary party tbe lands cannot be thus partitioned under tbe statute as to him. Tayloo v. Garrow, 15C N. C., 6, cited and applied.</p> <p>6. Tenants in Common — Partition—Decree—Parties—Motion in the Cause — Procedure.</p> <p>A nominal party in a proceeding for partition, though, not so 'in fact, should proceed by motion in tbe cause to set aside tbe decree therein.</p> <p>7. Same — Consent.</p> <p>A consent decree'in partition proceedings for the division of lands among tenants in common, which purports to operate upon the whole land and every interest in it, does not affect the rights of a tenant who has not been made a party, and who has not waived his' rights.'</p> <p>8. Same — Appeal and Error — Procedure.</p> <p>A sale of lands in partition proceedings among tenants in common being invalid because of the absence of necessary parties who have moved in the cause to set aside the decree, it is held in this case on appeal that the judgment be set aside, together with the order of sale and the commissioner’s deed, and that necessary parties be made, and the cause further proceed as the parties may be advised and in accordance with law.</p>

<p>Appeal by defendant from Lane, J., at November Term, 1911, of RUWCOMBE.</p>

<p>1. Claim and Delivery — Defendant’s Measure of Damages — Pleadings — Interpretation of Statutes.</p> <p>Where, under claim and delivery proceedings, the plaintiff comes into the possession of the property, the subject of the proceedings, and the judgment is given for the defendant, Revisal, sec. 570, limits the defendant’s recovery to the return of the property, or the value thereof, in case a return cannot be had, and damages for the same; and defendant’s counterclaim asking for no more is superfluous pleading.</p> <p>2. Same — Malicious Prosecution — Judgment—Res Adjudicata.</p> <p>When a recovery is had only for the damages allowed to the defendant in claim and delivery proceedings for the wrongful seizure of his property used in his business, as allowed by Re-visal, sec. 570, and in that action no further damage has been set up by way of counterclaim than those given by the statute, the doctrine of res adjudicata, does not apply in an independent action brought by the defendant in the former action to recover of the plaintiff therein damages for breaking up and destroying his business by unlawfully and maliciously prosecuting the action of claim and delivery.</p> <p>3. Same — Counterclaim.</p> <p>When the defendant in claim and delivery' proceedings has recovered judgment against the plaintiff for the damages allowed for the wrongful seizure allowed by Revisal, sec. 570, and has set up therein a counterclaim for only the damages allowed by the statute, the damages for “unlawfully, willfully, wrongfully, wantonly, recklessly, and maliciously” suing out the process are not included in the determination of the action, and res adjudi-cata cannot be pleaded in an independent action subsequently brought by the defendant for their recovery.</p> <p>4. Same.</p> <p>The fundamental reasons for the application of the doctrine of res adjudicata are that there should be an end of litigation and that no one should be vexed twice for the same cause; therefore, when the defendant in claim and delivery proceedings has recovered, of the plaintiff therein such damages for his wrongful seizure of defendant's property as allowed by Revisal, sec. 570, and he lias claimed no more, he may, by an independent action, sue for such damages to his business as may have been caused by the malicious prosecution of the plaintiff’s action; for such was not the subject of recovery in the claim and delivery proceedings, and the doctrine of res adjudicata has no application.</p> <p>5. Same — Practice.</p> <p>A suit for maliciously prosecuting a proceeding in claim and delivery for the purpose of breaking up the business of another will not lie before the termination of the claim and delivery proceedings, and the defendant in such proceedings cannot therefore set up a counterclaim in that action for the damages he may have sustained in his business.</p> <p>5. Claim and Delivery — Malicious Prosecution — Pleading—“Probable Cause.”</p> <p>An allegation in a complaint that the defendant maliciously, recklessly, and wantonly destroyed the plaintiff’s business by seizing liis property in a claim and delivery proceeding, is a sufficient allegation of a want of probable cause.</p> <p>7. Same — Interpretation of Pleadings.</p> <p>Pleadings will be liberally construed, and when there is an allegation in a complaint for damages for a malicious abuse of process, and it appears that it was based solely upon tlm facts that the plaintiff was unable to replevy the property seized under claim and delivery proceedings by the defendant, and that in consequence his business was destroyed, the allegations show that the action is really one to recover for the malicious prosecution of a civil action and an interference with the plaintiff’s property by claim and delivery proceedings.</p> <p>8. Same.</p> <p>When in an action for damages to plaintiff’s business by reason of the defendant’s seizing his property in claim and delivery proceedings, it is alleged that the plaintiff was not indebted at all to the defendant, and that defendant seized the property which plaintiff was unable to replevy, and that the defendant “unlawfully, wrongfully, wantonly, and recklessly commenced said action and prosecuted the same to his damage,” the words employed are stronger than if a distinct allegation had been made that the claim and delivery were taken out “without probable cause,” and, there being no set form for allegations of this character, the use of this expression is not required. Distinction between malicious prosecution and malicious abuse of process stated by Walkee, J.</p> <p>9. Appeal and Error — Objections and Exceptions — Assignments of</p> <p>Error.</p> <p>When a party states his ground of objection to the admissibility of evidence upon the trial, his exception orf-'appeal to the Supreme Court will be confined to the ground upon which he has based it.</p> <p>Bkown, J., dissenting.</p>

<p>1. Trusts and Trustees — Religious Societies — Partition.</p> <p>Lands held by trustees under a deed from the Shiloh Association of churches for certain declared school purposes, which association has subsequently increased in the number of churches, and the school has been incorporated by the Legislature in an act recognizing the trusts set out in the deed, cannot he divided by the churches in proceedings for partition,' for such would be subversive and destructive of the trusts declared.</p> <p>2. Trusts and Trustees — Religious Societies — Appointment of Trustees — Control.</p> <p>The only manner in which the Shiloh Association of churches may exercise any control of the property held by the trustees under its deed declaring certain trusts, is by the election of trustees at the meeting for that purpose regularly held under the legislative act of its incorporation. Kerr v. Kicks, 154 N. 0., 265, cited and applied.</p> <p>3. Trusts and Trustees — Religious Societies — Trusts Declared— Powers of Sale — Purposes.</p> <p>The provisions in the deed in trust to the trustees of the “Shiloh Association” of churches, that the trustees have “the rights and privileges of selling and mortgaging the property herein conveyed whenever they are required and requested to do so by the association,” is construed to apply only to selling and mortgaging the trust estate in pursuance and furtherance of the trusts declared, and not for the purpose of partition.</p> <p>4. Trusts and Trustees — Religious Societies — Trust Estates — Co-tenants — Possession—Partition.</p> <p>The individual churches of the Shiloh Association hold no such interest in the trust estate declared by their deed in trust as to make them cotenants therein and permit a division of it in proceedings for partition thereof; nor have they the possession, a necessary element in maintaining such proceedings.</p> <p>5. Trusts and Trustees — Religious Societies — Failure of Trustee— Equity.</p> <p>The courts, in their equitable jurisdiction, would not permit the trusts declared in the deed of the Shiloh Association of churches to fail for the want of a trustee; and if these trusts are considered for charitable purposes, the courts, under proper conditions, would appoint trustees from time to time, under Revisal, sec. 3923.</p>

<p>Appeal by plaintiffs from Justice, J., at November Term, 1911, of Beetle.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Ghief Justice Ciarle.</p>

, at Fall Term, 1911, of Dake. Motion for judgment for damages against sureties on injunction bond, beard upon exception to report of referee. His Honor overruled all the exceptions and confirmed the report. Both parties appealed. plaintiff's appeal.

<p>Appeal by defendant from Cline, J., at September Term, 1911, of CaMdeN.</p> <p>The facts are sufficiently stated in the opinion of-the Court by Mr. Chief Justice Ciarle.</p>

<p>1. Quo Warranto — Officers—Two Offices — Qualified in Second Office — Effect—Constitutional Law. ,</p> <p>When a person holding an office or place of trust accepts and qualifies for a second office, within the meaning of our Constitution, Art. XIV, sec. 7, the first office ipso facto becomes vacated.</p> <p>2. Quo Warranto — Parties—Two Offices — Leave of Attorney-Gen- ' eral.</p> <p>Where one holding an office accepts another, within the inhibition of our Constitution, Art. XIY, sec. 7, an action to declare the first office vacant may be instituted in the name of the State on the relation of the Attorney-General, by any individual who is a citizen and taxpayer of the jurisdiction where the officer is to exercise the powers of his office. Kevisal, see. 826 et seq.</p> <p>3. Quo Warranto — Leave of Attorney-General — Practice.</p> <p>An action cannot be maintained to declare an office vacant because the incumbent, has accepted a second office, within the meaning of our Constitution, Art. XIV, sec. 7, unless it appears that the leave of the Attorney-General has been obtained either before the commencement of the action or afterwards supplied pending the proceedings. Revisal, secs. 826, 827, 828, 829, and 830.</p>

, at Fall Term, 1911, of OhowaN. Civil action, trespass qua/re clausum, etc. Plaintiff alleged ownership of the Caleb Winslow farm, and as a part of bis proof offered in evidence a deed from Miles Perry to Caleb Winslow bearing date in 1798, a line of mesne conveyances of said farm to plaintiff.

, at Fall Term, 1911, of DaRE. Tbe plaintiffs allege two causes of action.

<p>1. Pleadings — Allegations—Interpretation.</p> <p>The allegations of a pleading are liberally construed with a view to substantial justice between the parties under our Code system.</p> <p>2. Pleadings — Issues Raised.</p> <p>An issue arises upon the pleadings when a material fact is alleged by one party and controverted by the other (Revisal, sec. 544) in special proceedings for partition of lands. Revisal, see. 710.</p> <p>3. Pleadings — Tenants in Common — Material Allegations.</p> <p>In special proceedings to partition lands the allegation that the parties are tenants in common is a material one, as the right of the parties to the partition is only conferred on tenants in common. Revisal, sec. 2487.</p> <p>4. Same — Issues—Questions for Jury.</p> <p>When in proceedings for partition of lands, the allegation that the parties are tenants in common is denied, an issue of fact is raised which must be submitted to the determination of the jury.</p> <p>5. Tenants in Common — Partition—Pleadings—Amendments—Discretion — Appeal and Error.</p> <p>It is within the discretion of the trial judge to permit answers to be filed in proceedings for partitioning lands which had been stricken out by the clerk, and his action therein is not reviewable on appeal.</p>

, at Fall Term, 1911, of Chowan. Tbis is án action to restrain tbe defendant from entering upon certain land, and cutting timber tbereon. ' Tbe defendant claims under a certain timber deed, executed by tbe plaintiffs on 9 September, 1904, to tbe Gay Lumber Company, wbicb conveyed certain timber on said land, and contained tbe following provisions: “Tbe said parties of tbe second part shall cut and remove tbe timber hereby bargained and sold and conveyed within five years…

Adams, J., at December Term, 1910, of Beaufort. The plaintiffs, E. T. Woolard and E. J. Jennette, trading as E. T. Jennette & Go., bring this action to recover $150, alleged to be due as damages on a contract for the purchase of 400 sacks of cracked corn.

, rendered at chambers, 19 May, 1911; from CaMDEN. Two civil actions between'same parties pending in tbe Superior Court of Camden County were consolidated and beard upon motion for an injunction to tbe bearing by bis Honor, Judge Allen, wbo dissolved tbe restraining order .theretofore granted, and refused to continue tbe same to final bearing. Tbe plaintiff appealed.

, at Fall Term, 1911, of PasquotaNk. Civil action, claim and delivery, in enforcement of a lien claimed on personal property of delinquent taxpayer.

, at November Term, 1911, of Bertie. This is a proceeding by tbe administrator of Charles B. Bunch to sell land for assets, and the only question presented by the appeal is the right of the widow of the intestate to dower or to a homestead in the land described in the petition. A jury trial was waived and the following facts agreed to: “First.

<p>Appeal by both, parties from an order of Foushee, J., rendered 15 February, 1912, at chambers; from Pitt.</p>

<p>1. Cities and Towns — School Committees — Discretionary Powers— Aldermen — Supervision.</p> <p>Tbe Board of Aldermen of Charlotte have no supervisory power of tbe school committee of that city in selecting a site, etc., for school purposes. School Commissioners v. Aldermen, post, 191, cited and applied.</p> <p>2. Cities and Towns — School Committees — Discretionary Powers— Power of Courts — Abuse of Discretion.</p> <p>The courts may not interfere with discretionary powers conferred on school committees in their administration of school . affairs, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of the discretion conferred.</p> <p>3. Same — Evidence.</p> <p>In this proceeding involving the right of the school committee of the city of Charlotte to select and build upon a certain site selected for public school purposes, it is held, upon the affidavits tending to show the site complained of was properly selected, that the court cannot inquire into the discretion of the committee in selecting it, there being no sufficient evidence that this discretion was unreasonably or arbitrarily exercised.</p>

, at January Term, 1912, of MecicleN-BURG. Civil action, instituted by School Commissioners of the City of Charlotte to compel the board of aldermen and treasurer of said city to turn over to treasurer of the school board the proceeds arising from the sale of certain school bonds issued by the city of Charlotte under and by virtue of chapter 317, Private Laws 1911.

, at November Term, 1911, of Pitt. Tbe action was brought by tbe plaintiffs to bave set aside and canceled upon tbe ground of fraud a certain paper-writing, or contract, in reference to tbe selling of land entered into on 15 September, 1910, between Alice Lee' Joyner and ber bus-band,'Andrew Joyner, and S. M. Crisp.

<p>Appeal from Justice, J., at September Term, 1911, of WARREN.</p> <p>Civil action to recover land. Yerdict and judgment for plaintiff, and defendant excepted and appealed.</p> <p>Tbe facts are stated in tbe opinion of tbe Court by Mr. Justice Uolee.</p>

, at October Term, 1911, of Yancey. This was a civil action, commenced before a justice of the peace, and tried on appeal in the Superior Court. , The action was brought to recover on an unpaid and protested check for $12, and on a note for $33, dated 22 March, 1910, given by defendant to plaintiff, and payable 1 December, 1910, with interest after maturity. Under the charge of the court, the plaintiff obtained verdict and judgment for the amount of the check.

<p>Appeal’ by plaintiff from Ferguson, J., at October Term, 1911, of EeaNkliN.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief .Justice Ciarle.</p>

, at October Term, 1911, of Chaven. This was a civil action instituted by the plaintiff to restrain the defendant sheriff from collecting certain State and county taxes levied on the property of the plaintiff, and for the purpose of having said taxes declared illegal and void and having the same stricken from the tax books. The plaintiff and defendant submitted the matter to the court upon an agreed statement of facts.

, at December Term, 1911, of Pitt. This is an action for tbe recovery of damages in tbe sum of $4,315.95, for tbe alleged negligent burning by tbe defendant of plaintiffs prize-bouse, or tobacco stemmery, in Greenville, N. C., on 31 January, 1910. Tbe fire is alleged to bave been caused by sparks from one of tbe defendant’s engines while being operated on Pitt Street. Tbe defendants deny liability.

<p>Appeal from Carter, J., at September Term, 1911, of Pitt.</p> <p>Civil action to reform a deed by reason of mistake, to remove cloud from title, and restrain cutting of timber. At tbe close of tbe testimony, on motion of tbe defendant, there was judgment of nonsuit, and plaintiff excepted and appealed.</p>

This is an action by tbe plaintiff as mortgagor, for an accounting and to redeem. Tbe issues raised by tbe pleadings were by consent referred to Hon. E. A. Daniels, and tbe following facts are found by bim, to wbicb no exception is taken: On 3 April, 1900, tbe defendant, Amos F. Becton, conveyed to tbe plaintiff, E. E. Eubanks, tbe tract of land described in tbe complaint, for tbe consideration of $1,000.

, at August Term, 1911, of Halifax. This case was beard below upon facts agreed, as follows: 1. Both plaintiff and defendant Scotland Neck Bank are, and were at tbe time of tbe acts hereinafter set out, corporations of tbis State, doing a general business. 2.

<p>Appeal from Long, J., at August Term, 1911, of Bubee.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

<p>Vendor and Vendee — Deceit—False Warranty — Evidence—Damages —Questions for Jury.</p> <p>In an action for damages for personal injuries caused by defendant’s deceit and false warranty in the sale of a horse, there was evidence tending to show that the defendant falsely represented that the horse was kind and gentle, and that plaintiff, relying thereon, bought the horse, drove him twenty-five miles to his home, and a few days thereafter, while driving him to a buggy, the horse began to kick and back and threw plaintiff out of the buggy and broke his leg: Held, a question for the jury as to whether defendant intended his statement as to the character of the horse to be a warranty, and whether the plaintiff, relying thereon, was thereby induced to buy, and whether, under the evidence, there was deceit and a breach of warranty on defendant’s, part.</p>

<p>Intoxicating Liquors — Sale to Minors — Pleadings—Allegations—Interpretation of Statutes.</p> <p>To sustain an action for exemplary damages under tbe provisions of the Revisal, sec. 3525, for the sale of intoxicating liquors to minors prohibited by the Revisal, sec. 3524, it is necessary that the person to whom the sale was made be “unmarried,” as well as “under the age of 21 years,” etc.</p>

This action was brought to recover damages for burning timber on the plaintiff’s land. The defendant’s servants, under the instructions of the section-master of its railway, were “burning off” the right of way, where much straw, trash, tree-tops, and stubble had been allowed to accumulate.

, at CamdeN Court, 5 September, 1911. This is a proceeding for contempt. Respondents were attached for contempt, convicted and fined $250 each for disobeying an injunction order of the court. The complaint alleges ownership by plaintiffs of two tracts of land, known as Lots Nos. 1 and 4 in the division of New Lebanon.

<p>1. Vendor and Vendee — Fertilizer—Deficient in Quality — Measure of Damages — Interpretation of Statutes.</p> <p>When it is ascertained by analysis of the Department of Agriculture that fertilizer sold by a manufacturer was deficient in quality, the damages sustained is the difference in the price of the fertilizer actually sold and what it should have been. Re-visal, sec. 8949.</p> <p>2. Same — Damages to Crop — Evidence Speculative.</p> <p>A user of fertilizer of a deficient quality, furnished by a man-. ufacturer, cannot recover damages for an alleged inferiority of his crop on that account; and evidence that where other fertilizers had been used the crop was better, is inadmissible, as it involves soil and weather conditions, cultivation, and other matters of a speculative character.</p> <p>3. Vendor and Vendee — Fertilizer—Deficient in Quality — Duty of Vendee — Measure of Damages.</p> <p>After a user of fertilizer has been informed by the Department of Agriculture that the fertilizer furnished by the manufacturer is deficient in quality, it is his duty to buy fertilizing material or ingredients to make good the deficiency, and, upon his failing to do so, an abatement in the price by reason of the deficiency is his measure of damages.</p> <p>4. Contracts, Written — Fertilizer—Representations—Parol Evidence.</p> <p>Evidence of a parol agreement that a purchaser of fertilizer was to pay nothing for it if the vendor’s representations were not found to be true upon analysis of the Department of Agriculture, is inadmissible to contradict the written contract of sale subsequently and unconditionally executed.</p>

<p>Appeal by plaintiff from Wh&dbee, J., at November Term, 1911, of CRAVEN.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

, at October Term, 1911, of Beaufort. Tbis action was brought to recover damages for injuries alleged to have been caused by the defendant’s negligence. Plaintiff was employed by the defendant as a lineman, in con-HectioH with the operation of its electric lighting plant, and on the day of his injury he was directed by his foreman to climb one of the poles for the purpose of repairing or removing one of the wires attached thereto.

<p>1. Executors and Administrators — Sale to Make Assets — Lost Papers — Entries of Records — Regularity of Proceedings — Evidence —Judgment—Collateral Attack.</p> <p>When the original papers in proceedings by an administrator to sell lands of the deceased to pay debts have been lost, the regularity of the proceedings may be established by entries thereof on the minute docket of the court, and when therefrom it is made to appear that the parties were properly before the court, minors being represented by guardians acl litem, and in all other respects the proceedings were conducted according to the due course and practice of the courts, the judgment entered cannot be collaterally attacked.</p> <p>2. Executors and Administrators — Sale to Make Assets — Lost Papers — Entries of Record — Regularity of Proceedings — Evidence Sufficient.</p> <p>The validity of a deed made by an administrator in proceedings for the sale of lands to make assets to pay debts being in controversy, and it being shown that the original papers had been lost, the entries on the minute docket of the court Held sufficient to sustain the regularity of the proceedings, which show the appointment of the administrator, who gave a satisfactory bond, and qualified; his account of sale of the land, which was received and ordered recorded; his charging himself with the proceeds of sale of the land in his final account; that service was admitted of the petition to sell the lands, the prayer was granted and decree filed, and that the report of sale was returned and confirmed.</p> <p>3. Deeds and Conveyances — Dower Excluded — Definite Description— Evidence Sufficient.</p> <p>When it appears that the deceased owned but one tract of land, which the administrator sold and conveyed in proceedings to pay his debts, subject to dower, and the deed described the land as that from which the dower tract was taken, the allot-^ ment of the dower may be examined to ascertain the land intended to be conveyed; and it therein appearing that both the dower tract and the lands from which it was taken were described by metes and bounds, these descriptions are sufficient to admit of parol identification of the lands thereunder.</p> <p>4. Executors and Administrators — Sale to Make Assets — Deeds and Conveyances — Recitation of Powers.</p> <p>Where an administrator acts under an order to sell land to make assets to pay debts and in accordance therewith sells the lands and executes his deed to the purchaser, it is not necessary that he recite the order in the execution of his deed for the deed to be valid, for by implication power is conferred by the order.</p>

<p>Insurance, Accident — Policy Contract — Limitation of Liability — Diseases — Interpretation of Policy.</p> <p>When an accident insurance contract provides for the payment of a loss for an injury received while riding on a railway passenger coach, and on the second page of the policy there is a provision limiting the liability of the insurer if the disability is due to an accident caused by or resulting from paralysis and certain other diseases, it is construed to mean that when an accident, is the ultimate cause of paralysis, or of one of the other diseases named, which accrues at a more or less remote period of time after the injury has been received, the liability of the insurer is limited by the provision, but not when the paralysis, etc., is a direct incident and a part of the injury effected through the accident insured against.</p>

<p>Appeal from Ferguson> J., at December Term, 1911, of MarTIN.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Justice Wallcer.</p>

<p>1. Appeal and Error — Motion for Judgment — Fragmentary Appeal— Practice.</p> <p>A nonsuit and appeal taken by plaintiff upon the refusal of the trial judge to grant his motion for judgment upon the pleadings and order a reference is premature and fragmentary, and will be dismissed.</p> <p>2. Appeal and Error — Motion for Judgment — Exceptions — Final Judgment — Practice.</p> <p>Upon the refusal of the trial judge to grant plaintiff’s motion for judgment upon the pleadings and order a reference, he should have noted an exception to be reviewed upon appeal from final judgment.</p>

<p>1. State’s Lands. — 'Grants—'Interpretation of Statutes — Swamp Lands — Statute of Limitations — Adverse Possession.</p> <p>•Until barred by adverse possession the statute of limitations does not run. against the State (Revisal, sec. 4048) in an action to recover swamp and marsh lands from a claimant holding under a grant which is invalid according to the provisions of the Revisal, sec. 1693 (3).</p> <p>2. State’s Lands — Grants—Swamp Lands — Interpretation of Statutes — Evidence—Opinion—Personal Knowledge.</p> <p>In an action involving the question as to whether the locus in quo are swamp lands, etc., within the meaning of Revisal, sec. 1693 (3), it is competent for witnesses to testify, upon their own observation, as to whether the lands were swamp lands or not, subject to the cross-examination of the opposing party, leaving the truth of the matter for the jury to determine.</p> <p>3. State's Lands — Void Grants — Swamp Lands.</p> <p>An instruction in this case held correct, that if the jury found from the evidence as a fact that the lands in controversy were swamp lands and in a swamp of over 2,000 acres, prior to and at the time the defendant’s claims were taken out, they would not be subject to entry, and defendant’s grant would be void. Revisal, sec. 1693 (3).</p> <p>4. State’s Lands — Swamp Lands — Definition — Interpretation of Statutes.</p> <p>After giving definitions as to the meaning of the term “swamp lands,” and quoting from that given in Revisal, sec. 1695, and instructing the jury that the statutory definition would not apply against the defendant who held under a grant prior to that time, the court said that he did not mean to lay down any fixed rule for the jury to determine whether the lands in controversy were swamp lands, but only to assist them in ascertaining the common and generally accepted definition: Held, no error.</p> <p>5. State’s Lands — Swamp Lands — Definition—Knolls or High Places —Interpretation of Statutes.</p> <p>A tract of land within the area of swamp lands coming within the meaning of Revisal, sec. 1693 (3), need not necessarily be free from knolls or higher and drier places; for when, taken as a whole, the general effect is that of swamp lands, the provisions of the statute apply which withdraw them from the granting authority conferred on the State officials.</p> <p>6. State’s Lands — Swamp Lands — Burden of Proof — Evidence — Quantum of Proof.</p> <p>Upon the issue as to whether the lands granted to the defendant were swamp lands within the meaning of the Revisal, sec. 1693 (3), the burden is upon plaintiffs, in this case the. State Board of Education, to establish the affirmative by the preponderance of the evidence, and not by “clear, strong, and convincing proof.”</p> <p>7. State’s Lands — Swamp Lands — Void Grants — Ownership—Presumptions.</p> <p>Grants of swamp lands within the meaning of Revisal, 1693 (3), are void under the Revisal, sec. 4047, and the law presumes the board of education is the owner of them.</p> <p>8. Instructions — Substance of Special Prayers.</p> <p>It is not necessary that correct requests for special instruction be given in their exact language.</p>

<p>Appeal from Cline, J., at October Term, 1911, of "WASHINGTON.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. CMef Justice Clark.</p>

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

<p>Defendants gave plaintiffs an option on lands known as the M. place, the same on which Mrs. M. “resides at the present time,” giving the adjoining owners by name, containing 1,500 acres, more or less, lying “on the waters of Mill Creek, near the waters of Hood Creek,” with further specification that it “is all of the lands owned by Mrs. M.” and certain others, “in the county of Brunswick, State of North Carolina.” When the purchase money was tendered, the defendants offered a deed leaving out the further specifications that it was all the lands owned by Mrs. M. and the certain others in Brunswick County, and it was Held, (1) the words of the further specification were merely words of description without obligation on defendant’s part to convey such land if outside of the boundaries specified in the option; (2) parol evidence was competent to show what lands were embraced within the description in the option of the M. place on which Mrs. M. resided at that time, upon plaintiff’s contention that the option called for 66 acres more than the deed conveyed.</p>

, at October Term, 1911, of SampsoN. Civil action for damages caused by the delay in transporting cattle. These issues were submitted to the jury: 1st. Were the cattle of the plaintiff injured by the negligence of the defendant, by defendant failing to carry said cattle in a reasonable time, as alleged? Answer: Yes. 2d. What damages, if any, is the plaintiff entitled to recover ? Answer: $150, with interest at 6 per cent from 27 April, 1905, till paid.

<p>Descent and Distribution — Next of Kin — Mother—Interpretation of Statutes.</p> <p>When an intestate leaves no children, but a mother and sisters, his mother is his next of tin and entitled to share equally in his personalty with his widow. Revisal, sec. 133 (3).</p> <p>I-Ioke, J., dissenting.</p>

, at February Term, 1912, of Wake. Motion in the above cause. His Honor rendered judgment as set out in the record, and the defendant Snow, receiver, appealed. The facts are stated in the- opinion of the Court.

H. Allen, J., at January Term, 1912, of New HaNOveR, on case agreed. Civil action to recover possession of a certain lot of land described in tbe pleadings. From a judgment for plaintiffs tbe defendant appeals. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

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

, at October Term, 1911, of EbaNk-XIN. Tbis was a civil action to recover possession of certain land described in tbe complaint. Tbe defendant demurred to tbe complaint. Tbe court sustained tbe demurrer, and tbe plaintiff appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

, at September Term, 1911, of Mab.-TIN. Petition for a cartway, under Revisal, sec. 2686. Tbis issue was submitted to tbe jury: Is the cartway proposed by the plaintiff necessary, reasonable, and just? Answer: Yes. From the verdict and judgment establishing the cartway the defendant appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

, at July Term, 1911, of New TIaN-ovee. Civil action. From tire judgment rendered the plaintiff appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>Appeal by plaintiff from Carter, J., at October Term, 1911, of CRAVEN.</p> <p>Tlie facts are sufficiently stated in tbe opinion of the Court by Mr. Chief Justice Ciarle.</p>

<p>Appeal by plaintiff from Peebles, J., at June Term, 1911, of LENOIR.</p> <p>Tbe facts are sufficiently stated in tbe opinion of' tbe Court by Mr. Chief Justice Clark.</p>

, at Sexitember Term, 1911, of CuRRi-TTJOK. Civil action. Tbe plaintiff sued to recover on a note for $10,000, given for tbe purchase money of certain lands. Tbe defendant pleaded counterclaims wbicb are embodied in these issues: 1. Did tbe plaintiff covenant to warrant and defend tbe title to tbe lands described in tbe answer? Answer: Yes. 2. Were tbe defendants ousted from tbe lands, or any part thereof, as alleged in answer? Answer: Yes; 17-80 of tbe Cox lands. 3.

<p>Appeal from Brag am, J., at April Term, 1911, of Wake.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Qhief Justice Clark.</p>

, .at November Term, 1911, of CRAVEN. This is an action to recover on a draft for $800, drawn 4 June, 1906, at Marion, S. 0., by W. A. Godbold, in favor of Burrus & Strakley, and accepted by the defendant Witcover. The defendant set up as a defense that the consideration for his acceptance was a gambling- contract between the said God-bold and the plaintiff for the purchase of cotton.

<p>1. Superior Courts — Clerks—Probate — Executors and Administrators — Removal—Legal Discretion — Appeal and Error — Practice.</p> <p>In the exercise of their prohate powers, and the legal discretion conferred upon them, clerks of the Superior Court may remove for good cause shown, upon petition filed and notice duly shown, an executor or administrator, subject to review by the Superior Court, and by the Supreme Court on appeal.</p> <p>2. Superior Courts — Clerks—Executors and Administrators — Issues of Fact — Practice.</p> <p>On issues raised in proceedings before the clerk of the Superior Court for the removal of an executor or administrator for good cause shown, it is not required that the clerk transfer the cause to the Superior Court for the trial of the issue, as applications of this character are not regarded in the nature of adversary proceedings, but as a power conferred on the clerk with a view of protecting, estates, often presenting the necessity for his prompt action. Revisal, sec. 35.</p> <p>3. Superior Courts — Clerks—Executors and Administrators — Compensation — Contracts—Removal of Administrator — Appeal and Error.</p> <p>It appearing by admission of record in the Supreme Court on appeal from an order removing an administrator for cause, that he had procured from the wife of the deceased, an illiterate woman, and her minor children, the next of kin, a contract by which he and another, who had aided him, were to receive 25 per cent more than the legal charges allowed to administrators: Held, the order removing him was properly made.</p>

, at January Term, 1912, of EísanK-LIN. Appeal by Seaboard Air Line Railway Company. This is an appeal from a judgment overruling a demurrer.

, at November Term, 1911, of Nash. Action of claim and delivery. On reading tbe pleadings and it being admitted that plaintiff, at tbe time of trial, was not a resident of this State and bad not given a bond in tbe State as executor, bis Honor, on motion, entered judgment of nonsuit, and plaintiff excepted and appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Solee.

, at January Term, 1912, of LeNOIR. This was a motion to quash an execution and sale had thereunder, heard on appeal from Superior Court Clerk. On the hearing, the court being of opinion that the clerk had no jurisdiction to entertain or act on the motion, entered judgment dismissing the proceedings, and the applicant, John Williams, having duly excepted, appealed.

The action was to remove a cloud from plaintiff’s title to a tract of land, known as the old Pelletier homestead, and to correct a mistake of description in a line of deeds, by which same was created, all of the grantees being parties defendant. There was verdict for plaintiff; judgment, and defendant, the Interstate Cooperage Company, excepted and appealed. The facts are sufficiently stated in the opinion of the court by Mr. Justice Moke.

Cline, J., at December Term, 1911, of Beau-FORT. Civil action for divorce from bed and board.

, at August Special Term, 1911, of Pamlico. This action is brought by L. Gr. Daniels and the Atlantic Coast Forest Preserve and Improvement Company to recover damages alleged to have been caused by the negligence of the defendant in setting out fire, damages for cutting timber under the size permitted by a deed under which the defendant claims, and for cutting cedar which the plaintiffs claim is not conveyed by said deed. The summons was issued on 18 August, 1909.

W. Ward, J., at Fall Term, 1911, of Saiip-son. Civil action, beard on demurrer to complaint. There was demurrer by A. W. Aman, the present defendant, for misjoinder of both parties' plaintiff and causes of action. The court in its discretion ordered a severance, and defendant Aman excepted and appealed, assigning for error the failure and refusal to dismiss the action for misjoinder.

<p>Appeal from Whedbee, J., at November Term, 1911, of CRAVEN.</p> <p>Civil action to recover the balance due on a note.</p> <p>It appeared that on 3 March, 1909, defendants R. N. Duffy and A. C. Burnett executed their note to D. H. Green for $5,000; that there had been a payment thereon of $1,000 and the remainder, or $4,000, was due at the time of suit brought 5 that some time prior to institution of action D. H. Green sold the note to plaintiff for $3,200 and the purchaser required the indorsement of the payee, Green, and H. T. Pratt as guarantee of payment. The indorsers having pleaded that as to them this was an usurious transaction, issues were submitted. Tbe court charged the jury if they believed the evidence to answer the issue as to usury “No.” There was judgment for full amount due on note and interest, against all of the parties served with process, and the indorsers, Green and Pratt, excepted and appealed.</p>

, at November Term, 1911, of WayNE. This action was commenced by Martin & Garrett, agents, before a justice of tbe peace, to recover tbe sum of $166.65, and interest on $166.65 from 14 December, 1910, due by five notes for $33.33 eacb, given for rent of bouse No. 307 Third Street, Augusta, Ga., said notes being due 1 March, 1911; 1 April, 1911; 1 May, 1911; 1 June, 1911, and 1 July, 1911. Tbe form of tbe notes was as follows: $33.33. Augusta, Ga., 14 December, 1910.

<p>Appeal from Whedbee, J., at November Term, 1911, of CRAVEN.</p> <p>Civil action to recover damages for personal injuries caused by alleged negligence on tbe part of defendant companies.</p> <p>There was evidence, on paid of plaintiff, tending to show that be was an employee, as section boss of tbe defendant companies and, on 24 August, 1908, be was seriously and permanently injured by tbe derailment of a band-car be was tben using in tbe course of tbe employment; tbe derailment being.caused by a defective wheel, attributable to negligence of defendants.</p> <p>The defendants denied tbe negligence and set up, by way of defense, a voucher, issued in plaintiff’s favor, on 24 October, 1908, for $150, purporting to be in “full settlement of all claims against tbe railroad companies on account of tbe injuries; indorsed by plaintiff, making bis mark, and tbe proceeds of which were shown to have been received and spent for plaintiff’s benefit.</p> <p>Plaintiff made formal reply, alleging that, at the time tbe voucher was issued and indorsed and at time of proceeds received and used, owing to bis injuries, be was incapable, mentally, of making any binding contract affecting bis interests, and was-utterly unable to understand or appreciate tbe character of tbe transaction or its effect upon bis rights, and offered evidence in support of bis allegation. ■ On issues submitted, tbe jury rendered tbe following verdict:</p> <p>1. Did tbe plaintiff indorse tbe voucher or release introduced in evidence and marked Exbibit A? Answer: Yes, by consent of plaiñtiff.</p> <p>2. "Was tbe plaintiff, by reason of bodily pain, mental anguish, or mental incapacity, unable to comprehend tbe effect of such release indorsed by him, and was such release signed and indorsed by him without knowledge that tbe same was a release for bis injury? Answer: Yes.</p> <p>3. Did tbe plaintiff draw tbe money upon said voucher from tbe bank without knowledge that it was in full payment and release by him for all injuries sustained? Answer': Yes.</p> <p>4. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged? Answer: Yes.</p> <p>5. If so, what damages has plaintiff sustained thereby? Answer : $1,500.</p> <p>Judgment on the verdict foi’ $1,500, and defendants excepted and appealed.</p>

<p>1. Ejectment — Rentals, etc. — Limitation of Actions.</p> <p>This action to recover possession of lands known as “the Homestead,” alleging want of title in the defendant, and for the recovery of rents, is held, in effect, a proceeding in ejectment, wherein the provisions of Kevisal, 654, apply, that “the defendant shall not be liable for such annual value for any longer time than three years before the suit, or for damages for any such waste or other injury done before said three .years, unless when he claims for improvements as aforesaid.”</p> <p>2. Same — Betterments.</p> <p>In an action in ejectment, the defendant claiming for improvements put upon the • land is entitled to have the betterments placed by him in good faith and without notice, assessed not to exceed the amount actually expended by him, with interest thereon, and not to exceed the increased value of the premises at the time of the assessment which has been caused thereby; and if the betterments exceed in value the rental and damages for waste, the rents and profits accruing prior to the three years may be assessed so far as to balance the improvements, but no further.' Revisal, secs. 653, 654, 655, 656, 657, 658. Reid v. Etrum, 84 N. C., 430, cited and distinguished.</p> <p>3. Same — Married Women — Homestead.</p> <p>When a married woman has brought her action in the nature of ejectment and claims rents and damages for its wrongful detention, and tlie defendant holding under color of title believed by him to be good has made permanent improvements, the statutes regulating the adjustments to be made under such circumstances apply (Revisal,' 653, and other sections) ; and the plaintiff has no claim of homestead in preference to the defendant’s lien. Revisal, sec. 408, permitting a feme covert to sue without joining her husband; chapter 78, Laws of 1899, repealing the exemption of married women from the statute of limitations, and the effect of the Constitution of 1868, discussed in its application to this subject by Clark, C. J.</p>

, at Fall. Term, 19Í1, of RobesoN. The plaintiff is the Yirginia-Carolina Chemical Company, and the defendants are O. I. Floyd, A. N. Mitchell and wife, Elizabeth A. Mitchell. The complaint filed by the plaintiff is as follows: First. That it is a corporation duly organized and existing under and by virtue of the laws of the State of New Jersey, and having offices in the city of Richmond, in the State of Virginia, and the city of Durham, State of North Carolina. Second.

<p>Appeal by defendant from Ferguson, J., at September Term, 1911, of Moore.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. .Chief Justice darle.</p>

, heard at chambers, 21 September, 1911, from Lee. Motion for injunction to enjoin the defendant from entering upon the lands of the plaintiff. The injunction was denied, and the plaintiff appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

, at October Term, 1911, of Cumberland. This action was commenced on 22 July, 1909, against the Consolidated Railway and Power Company, successor to Little River Power and. Transportation Company, and is to recover judgment for the value of certain material which the plaintiff alleges he furnished the defendants for the purpose of building a power-house and repairing a dam, and to enforce a lien therefor.

<p>1. Telegraphs — Mental Anguish — Surgeon—Notice of Importance— Substantial Damages.</p> <p>Eor mental anguish proximately resulting from the negligence of a telegraph company in sending an affirmative reply from a surgeon to a message reading, “Young lady appendicitis; can’t pay anything till fall. Will you operate? Answer,” and signed by the physician of the patient, substantial damages are recoverable by the patient for whose benefit it was sent, the message giving notice of the character of damages that would likely result.</p> <p>2. Telegraphs — Reasonable Stipulations — Message—Blank.</p> <p>Telegraph companies may make reasonable stipulations restrictive of liability to the extent that they are not relieved thereby from the obligations of diligence superimposed by law in the performance of their duties.</p> <p>3. Same — Messenger—Agent of Sender — Principal and Agent — Telephone — Evidence.</p> <p>A telegraph company cannot avail itself of a stipulation in its message blank to the effect that a messenger boy is to be deemed the agent of the sender in taking a telegram to the telegraph office for transmission, without liability on the part,of the company, when it appears that the sender of the message got into communication with a person answering the telephone number call of the company and the rqessenger came in accordance with a request that one be sent, and was evidently sent by the company for the express purpose of getting the message for transmission.</p> <p>4. Same — Prima Facie Agency.</p> <p>Testimony that the sender of a message called the well-known telephone number of a telegraph company’s office and requested the one responding thereto that a messenger be sent to take a telegram to the office, and that the messenger appeared in consequence and received the message, affords evidence that the messenger was the duly authorized agent of the company for the purpose of receiving the message for transmission.</p> <p>5. Telegraphs — Mental Anguish — Surgeon—Measure of Damages— Evidence.</p> <p>In this case damages were demanded for mental anguish caused the plaintiff on account of the failure of the defendant telegraph company to transmit a telegram replying affirmatively to one sent to a surgeon by the plaintiff’s physician, reading, “Young lady appendicitis; can’t pay anything till fall. Will you operate? Answer.” Evidence upon the measure of damages hfild competent which tended to show that the attending physician, not hearing from his telegram, did not call upon his patient until several hours after his usual time for a visit, desiring to make arrangements elsewhere; that in this interval of waiting the plaintiff, not understanding his absence, suffered mental anguish in apprehension that she could not get operated on, from which she supposed that she would die, etc.</p> <p>6. Appeal and Error — Incompetent Evidence — Instructions—Harmless Error.</p> <p>Instructions by the court in this ease to th,e jury, that they must not consider certain incompetent evidence in an answer of a witness, on the question of the measure of damages for plaintiff’s mental suffering alleged to have been caused by the negligence of defendant telegraph company in failing to transmit a message, Eeld, sufficient, and no error is found therein.</p> <p>Brown, J., dissenting.</p>

, at September Term, 1912, of PeNdeb. This is an action brought by Charles S. Riley & Co. to recover of the defendants the timber described in the complaint, and for a restraining order restraining the defendants, Carter & Pratt, from cutting the timber pending the action. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

, at chambers, 11 December, 1911. This is a proceeding -to remove an'administrator. Harry 0. Bannister, wbo resided in tbe city of Raleigb since April, 1907, as manager of tbe-Western Union Telegraph office, died 2 May, 1911, at Richmond, Ya. His father and mother, as well as his wife and infant child, and all of his brothers and sisters, had predeceased him.

, at February Term, 1911, of UsrioN. The following issues were submitted by the Court: 1. Did the defendant assault the plaintiff, Mima Thomas, as alleged in the complaint? 3. What damage, if any, is the plaintiff entitled to recover? The jury answered the first issue “No.” There was a verdict and judgment for the defendant, and the plaintiff appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>1. Railroads — Easements — Rights Acquired — Use by Owner of Lands.</p> <p>Only an easement in lands passes from the owner to a railroad company under condemnation proceedings (Revisal, see. 2575), divesting all the rights of owners who are parties to the proceedings, in such easement during the corporate existence of the company (Revisal, see. 2587), but allowing them to use and occupy the right of way in any manner not inconsistent with the easement acquired.</p> <p>2. Railroads — Easements — Use by Railroad — Necessity—How Determined.</p> <p>A railroad company may use and occupy a right of way acquired by it under condemnation proceedings, when, in its own judgment, the proper management and business necessities of the road may require it.</p> <p>3. Railroads — Easements — Additional Burdens — Owner’s Compensation.</p> <p>When a railroad company puts additional burdens upon a right of way which it has acquired by condemnation, not properly embraced in the general purpose for which it was obtained, the owner is entitled to compensation for them.</p> <p>4. Railroads — Easements—Measure of Damages — Mineral—Special Circumstances.</p> <p>In awarding damages to the owner of lands for an easement therein acquired for railroad purposes, there should, as a general rule, be included the market value of the land actually covered by the right of way, subject to modification under special circumstances, as where there is a mineral deposit of the use of which the easement does not interfere.</p> <p>5. Railroads — Easements—Measure of Damages — Special Benefits.</p> <p>The owner of lands through which a railroad has acquired a right of way by condemnation is entitled to recover therefor the damages done to the remainder of the tract or portions of the land used by him as one tract, deducting from the estimate the pecuniary benefits or advantages which are special and peculiar to the tract in question, but not those which are shared by him in common with other owners of lands of like kind in the same vicinity.</p> <p>6. Appeal and Error — Objections and Exceptions — Instructions.</p> <p>An instruction to the jury that the plaintiff was entitled to recover of a railroad company, for condemning his land for a right of way, the actual market value of the land thus taken, will not he held for reversible error on appeal when no exception is entered.</p>

, at October Term, 1911, 'of CUMBERLAND. On the trial it was made to appear that plaintiff, holding two notes by indorsement, for value and before maturity, each for sum of $251.34, given for a sawmill, engine, boiler, etc., and a registered lien, in the form of conditional sale, instituted the present action to recover on the notes and enforce the lien, etc. The property, having been seized by ancillary process of claim and delivery, was replevied by Gr.

.H. Allen, J., at November Term, 1911, of GRANVILLE. The petitioners filed their petition in November, 1910, before the Board of Supervisors of Salem Township, Granville County, asking that a cartway be established from the land on which they lived, across the track and right of way of the defendant, to a public road.

, at February Term, 1912, of FOR-SYTH. Civil action beard on demurrer to tbe complaint. Tbe action was to collect tbe purchase price, wbicb defendant bad agreed to pay for certain municipal bonds of tbe city of Winston, to tbe amount of $160,000, wbicb defendants bad contracted to take at par and interest.

Arpeal from Ferguso.n, J., at October Term, 1911, of FraNK-LIN. This is an action to recover damages for personal injuries caused by a car, on which plaintiff had been riding as a passenger, passing over his foot, making amputation necessary. The plaintiff, a man 69 years old, was a passenger on defendant’s train on the night of 26 October, 1910, from Louisburg, N. 0., to Franklinton, N. 0. The train consisted of six box cars and two passenger coaches.

, at September Term, 1911, of JohN-STON. Tbis is 'a civil action, instituted by tbe plaintiffs to recover damages for personal injury, alleged to have been sustained by tbe feme plaintiff at Bagley, N. C., on 29 January, 1909. At tbe conclusion of tbe evidence introduced by tbe plaintiffs, on motion of defendant’s counsel, there was a judgment of nonsuit. Tbe plaintiffs appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

This action was brought by the Eree-will Baptist Church, Northeast Conference, against the Eree-will Baptist Church, Northwest Conference, for the adjudication of certain rights of property as between them.

, at December Term; 1911, of New IÍANOVER. This case was beard in tbe Superior Court upon a ease agreed, wbicb is, in substance, as follows: Tbe defendant is Register of Deeds of New Hanover County, and on or about 27 December, 1910, issued a license for tbe marriage of Ednia Littleton, daughter of plaintiff, and, at tbe time, under eighteen years of age.

Appeal by H. H. Phillips, receiver, from Ferguson, J., at October Term, 1911, of Edgecombe. This case was tried below on the following case agreed: 1.

<p>1. Wills — Interpretation—Intent.</p> <p>The intent of the testator, to be ascertained under the rules of construction, and gathered from the will construed as a whole, should be given effect.</p> <p>2. Same — Powers of Disposition — Life Estates — General or Indefinite Estates.</p> <p>A devise of all of the testator’s real property to his wife, “during her natural life, and then to dispose of as she sees proper,” does not, by the power of disposition, enlarge the estate devised to her into a fee simple, for. the limitation of her estate for life shows the intent of the testator that only a life estate, and not the fee, was intended by the gift; and upon her failure to exercise the power of disposition, the estate will revert to the heirs at law of the husband. It is otherwise when an estate is devised generally or indefinitely, with a power of disposition.</p> <p>3. Wills — Estates for Life — Powers of Disposition — Property—Mere Authority.</p> <p>A devise for life with the power of disposition creates a life estate only, the power of disposition being a mere authority which can be exercised or not, in the discretion of the life tenant.</p> <p>4. Wills — Estates — Power of Disposition — Exercise of Power — Donor.</p> <p>One taking lands under a power of disposition given by will does not take from the one exercising the power, but from the testator or donor of the power.</p> <p>5. Wills — Estates for Life — Power of Disposal — Interpretation of Statutes.</p> <p>Revisal, sec. 3138,' only establishes a rule between the heir and devise in respect to the beneficial interest of the latter, and does not affect the construction of a will devising a life estate in lands with the power of disposition.</p>

<p>Appeal from Cline, J., at July Special Term, 1911, of Gates.</p> <p>This is an action to recover a lot of land, alleged to be a part of the public square of Gates County. There was a verdict in favor of the plaintiff, and the defendant appeals from a judgment rendered thereon.</p>

<p>Appeal from an order of 0. II. Allen, J., heard at chambers 23 January, 1912, from Pitt.</p>

, at Pall Term, 1911, of Pole. Civil action in the form of a controversy without action. The plaintiff seeks to compel the defendant to specifically perform a contract for the purchase of a large tract of land, and to pay to the plaintiff the sum of $40,000 purchase money. The judge below rendered a judgment in favor of the plaintiff, decreeing specific performance of the contract and requiring the payment of the purchase money.

, at October Term, 1911, of Heet-fokd. A motion to set aside a judgment upon the ground of excusable neglect under section 513 of the Revisal. His Honor declined to set aside the judgment, and the defendant appealed to the Supreme Court.

Appeal by plaintiff from Cline, J., at October Term, 1911, of Beaufort. This is an action to recover special damages for breach of contract in the shipment of certain plate-glass.

, at December Term, 1911, of Beau-EOR.T. Civil action beard upon tbe report of referee and sucb issues submitted to tbe jury as follows: Does M. Makely bold tbe land conveyed by tbe deed dated 14 May, 1897, from Oalboun Tooley to M. Makely in trust for tbe firm of Montgomery & Makely? Answer: No. What amount, if any, does tbe defendant owe tbe firm of Montgomery & Makely for casb sales of oysters from 1893 to 1909 ? Answer: $1,500.

, at June Term, 1911, of LeNoir. Civil action to recover damages to a lot of tobacco shipped by tbe plaintiff from Eicblands, N. 0., to Eocky Mount, N. 0. These issues were submitted: 1. Was tbe plaintiff tbe owner of tbe tobacco in controversy, as alleged in tbe complaint? Answer: Yes. 2. If so, was tbe said tobacco damaged by tbe negligence of tbe defendant, tbe Goldsboro Lumber Company? Answer: No. 3.

W. Ward, J., at October Term, 1911, of SAMPSON. Civil action. The following issues were submitted to the jury: 1. At the sale of the land in question, on 15 February, 1898, at courthouse door in Clinton, was it agreed between John T. Gregory, the mortgagee, and the defendant Warwick that Warwick should bid off the said land, and did be bid off said lands as agent and trustee for said Gregory, as alleged? Answer: Yes. 2.

<p>1. Appeal and Error — Failure of Judge to Settle Case — Certiorari.</p> <p>When without laches on the part of appellant the judge has failed to settle his case on appeal, a oertiorwri will issue on his motion.</p> <p>2. Appeal and Error — Appeal by Both Parties — Record as to Each— Laches.</p> <p>When both parties to the action appeal, a transcript of the record must be sent up by each, and -one party may not avail himself of the diligence of the other in having his record sent up, by docketing the record of that other party as his own.</p> <p>3. Appeal and Error — Motion to Reinstate — Laches.</p> <p>AVhen an appeal has been dismissed under Rule 17 in the Supreme Court, the appellant, applying for a reinstatement upon the ground that the trial judge has failed to settle the case, must show that he has had his record proper docketed in this Court, as required by the rules, or his motion will be denied.</p>

Ajppeal from Peebles, J., at November Term, 1911,' of Hart-NETT. Civil action. Certain issues were submitted to the jury, who returned a verdict in favor of the defendant.

, at May Term, 1911, of SampsoN. This case was before tbis Court at a previous term, and is reported in 152 N. C., page 183. The case was retried at May Term, 1911, of the Superior Court of Sampson County. There was a verdict upon the issues and a judgment for the plaintiffs, from which the defendants appealed.

, at November Term, 1911, of Samp-SON. This was a civil action for the recovery of personal property claimed by the plaintiff and alleged to be -unlawfully withheld by the defendant. From a verdict and judgment in favor of the plaintiff, the defendant appealed.

<p>1. Murder — Threats—Remarks—Evidence.</p> <p>Evidence of threats by the prisoner being tried for murder, made three days before the homicide, and of the remarks that brought them forth which are connected with the threats, are competent. ,,</p> <p>2. Murder — Character Witnesses — Particular Traits — Cross-examination — Rights of Witness.</p> <p>It is competent on cross-examination of a witness for a female defendant being tried for murder, who has testified to her good character, to ask the witness as to the general reputation of the prisoner in regard to a particular trait of character, and the witness, himself, may say in what respects the character of the prisoner is good or bad, so as to give the truth of the matter in justice to himself.</p> <p>3. Murder — Character Witnesses — General Character — Chastity.</p> <p>It is competent for a character witness to be asked on cross-examination the general character for chastity of a female prisoner on trial for murder, but not as to specific acts of un-chastity.</p> <p>4. Same — Harmless Error.</p> <p>Questions asked a character witness for the female prisoner on trial for murder as to her general character for chastity, which appears to. have been unprejudicial, will not be held for reversible error.</p> <p>5. Expert Evidence — Knowledge of Witness.</p> <p>Where there is evidence that the deceased, whom the defendant is on trial for unlawfully killing, had heart trouble, and the witness is an expert physician and had observed and testified to the shock which was alleged to have producéd the death, it is competent to ask him, “If a person was suffering from heart trouble would the chance of a fatal result by reason of such disease be increased or diminished from a shock such as you saw the deceased was suffering from when you visited him?”</p> <p>6. Murder — Evidence—Testimony Taken by Magistrate — Identification — Competency.</p> <p>Testimony of the deceased taken down by a magistrate before his death when the prisoner was being tried only for an assault, signed by tbe deceased and after bis death banded by this magistrate to another conducting tbe preliminary trial for murder, with direction that be band it to the clerk of tbe Superior Court, is competent evidence upon tbe trial for murder in tbe Superior Court when identified by tbe magistrate who transcribed it, and is a sufficient compliance with Revisal, sec. 3205.</p> <p>7. Appeal and Error — Objections and Exceptions — Improper Remarks — Practice—Waiver.</p> <p>Exceptions to improper remarks of counsel in their argument to the jury when taken for tbe first time and permitted by the trial judge in stating the case on appeal, will'not be considered on appeal, for such exceptions must be taken at tbe time, or they will be deemed as waived.</p> <p>8. Same — Prejudicial—Harmless Error.</p> <p>When, on a trial for murder, an attorney for tbe State bases a part of bis argument on matters not in evidence, saying that tbe prisoner’s character was such that people were afraid to testify against her, Held, that error, if any committed, and in the absence of objection at the time, is rendered harmless by an instruction that there was no evidence upon which the argument could be made, and that the jury should not consider it.</p> <p>9. Appeal and Error — Assignments—Brief.</p> <p>Assignments of error not appearing in appellant’s brief are considered bn appeal as abandoned. 140 N. C., Rule 34.</p>

<p>1. Murder — Circumstantial Evidence — Husband’s Previous Conduct.</p> <p>Where there is circumstantial evidence tending to connect the defendant with the commission of the crime and to show some preparation on his part to murder his wife, it is competent, as tending to show identification of the husband as the murderer and of his malice towards his wife, that they did not get on well together, and had quarreled shortly before the homicide was committed, when he drove her from his home, threatened to cut her with his knife and attempted to draw his pistol on her.</p> <p>2. Murder — Motive—Evidence.</p> <p>Motive for committing a homicide is not required to be proved in order to convict, when it is not of the essence of the crime charged, but it may be shown to identify the prisoner as the perpetrator of the crime, and to establish malice, deliberation, and premeditation.</p>

, at September Term, 1911, of Martlet. Tbis is an indictment for murder. The prisoner was convicted of murder in the first degree, and from the sentence of death appeals to the Supreme Court. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>Appeal from Garter, J., at October Term, 1911, of OabteRet.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

, at January Term, 1912, of LeNOIR. The defendants were. indicted at May Term, 1911, of the Superior Court of Lenoir County, under section 3338 of tbe Re-visal, for burning a warehouse in LaGrange. They were tried on tbe indictment at October term of said court, and upon failure of tbe jury to agree, a juror was withdrawn and a new trial ordered. Tbey were tried a second time at January Term, 1912, of said court, and convicted.

, at January Term, 1912,'of Waike. Tbe defendant was tried before the Police Justice of the City of Raleigh, on the following warrant: '“J. P. Stell, Chief of Police of the City of Raleigh, being duly sworn, says that he is informed and believes that, on or about the 4th day of December, 1911, in the city of Raleigh, and in Raleigh Township, Wake County, William Hinton, alias ‘Son’ Hinton, did unlawfully' and willfully resist, delay, and obstruct J. H. Wyatt and G. C.…

^Appeal from Whedbee, J., at October Term, 1911, of Brunswick. Indictment for an assault with intent to commit rape. The defendant was convicted and sentenced. In apt time he moved in arrest of judgment for insufficiency of the bill of indictment, which read as follows: State oe North Carolina — Brunswick CouNty. In the Superior Court,'October Term, A. D. 1911.

<p>1. Quarantine of'Cattle — Board of Agriculture — Powers.</p> <p>The State Board of Agriculture has authority to make aud enforce regulations for the quarantine of cattle and to prevent their transportation in view of preventing the spreading of contagious diseases. »</p> <p>2. Quarantine of Cattle — Prohibited Territory — Fence Law, County —“Willfully Pfermit.”</p> <p>An owner of cattle, in permitting them to run at large in a no-fence county, which results in their straying from a prohibited territory, willfully “allows” them to move across the line when he purposely turns them out and they cross the line; for it is not necessary that he drive them across; it is enough that he permit them such liberty that thereby they are “allowed” by him to move across the line.</p> <p>Walker and Allen, JJ., dissenting.</p>

Tbe defendant was convicted upon tbe charge of unlawfully selling cocaine to Cora McKeithan, and appealed from tbe judgment pronounced upon tbe verdict. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice All&n.

<p>Appeal from Coolc, J., at February Term, 1912, of Guilford.</p> <p>Tire fact's are sufficiently stated in tbe opinion of the ‘Court by Mr. Chief Justice Claris.</p>

Appeal by defendants from Ferguson, J., at January Term, 1911, of ANSON. The defendants, Jesse A. Price and Robert E. Price, were indicted in the court below for the murder of Lester Rushing. The evidence is voluminous and there are many exceptions. Thomas Rushing, a witness for the State, testified: That he and hi,s brother Lester went to Lester’s house about dark, for the purpose of getting feed for Lester’s mule. Lester Rushing kept his mule in Jesse Price’s barn.

, at November Term, 1911, of Du-PLIN. Indictment charging defendant with unlawfully and willfully removing a part of a fence surrounding a certain cultivated field. Upon a special verdict his Honor adjudged defendant not guilty and State appealed. “The defendant was indicted upon the bill hereto attached.

Appeal by defendant front Garter, J., at November Term, 1911, of CuMBERLAND. The defendant was convicted upon an indictment charging him with selling intoxicating liquors to persons unknown, and apjiealed from the judgment pronounced on the verdict.