Volume 159 — North Carolina Reports

, at December Term, 1911, of Pitt. This case was beard below upon tbe following admitted facts: On 13 September, 1871, William Gardner, being tben tbe owner in. fee of'tbe tract of land in… Held: and so adjudged, that the deed of William Gardner to Martha Jane Gardner did not convey the fee, but only a life estate, and, therefore, the plaihtiff’s deed will not convey a fee-simple estate to Moseley and Wooten. Plaintiff appealed.

, ■ at chambers. Givil action in Superior Court of Sampson County to compel defendant company to restore telephone connection of plaintiff company with the local exchange of defendant company in Dunn, N. C., and supply service in that town for plaintiff and subscribers, pursuant to a contract set forth and described in tbe complaint.

<p>Appeal by defendant from Justice, J., at January Special Term of RowaN. ,</p>

, at November Term, 1911, of DAVIDSON. - This action was brought to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the defendants, while he was in their employ at Whitney, N. C. Plaintiff complained as follows: 1.

<p>Appeal from Daniels.J., at September Term, 1911, of StaNLY.</p> <p>This action is to recover $40’ alleged to be due plaintiff for tbe burial expenses of tbe son of tbe defendant.</p> <p>Tbe son was a minor, and was living apart from tbe defendant at tbe time of his death, and was in tbe enjoyment of bis own earnings, but tbe plaintiff offered evidence tending to prove that tbe defendant wrongfully drove him from borne.</p> <p>It was in tbe evidence that tbe son owned personal property of tbe value of $60 or $70, which was disposed of by bis relations, and there was no evidence that tbe defendant expressly authorized tbe expense incurred.</p> <p>At tbe conclusion of tbe evidence tbe defendant moved for judgment of nonsuit, which was denied, and tbe defendant excepted. Exceptions were also taken to tbe charge of bis Honor, but they are all involved in tbe motion for judgment of non-suit.</p> <p>Tbe following verdict was returned by tbe jury:</p> <p>1. Had tbe deceased, William Thompson, Jr., been emancipated by bis father, and was be still emancipated at tbe time of bis death? Answer: No.</p> <p>2. In what amount, if any, is tbe defendant indebted to tbe plaintiff? Answer: $35.</p> <p>Judgment was entered on tbe verdict in favor of tbe plaintiff, and tbe defendant appealed.</p>

Allen, J., at October Term, 1911, of DURHAM. Civil action to recover damages for personal injuries caused by alleged negligence of defendant company. On the three ordinary issues in an action for negligence there was verdict for plaintiff and awarding damages in the sum of $500. Judgment on the verdict, and defendant excepted and appealed.

<p>1. Attachment — Process—Amendments—Discretion of Courts.</p> <p>When a warrant of attachment and summons by publication on a nonresident defendant are returnable to the trial court in term, giving the date, any informality in the process may be ■ cured by amendment, if allowed by the court. Revisal, secs.-507 and 509.</p> <p>2. Same — Notice.</p> <p>The proper publication of summons for a nonresident defendant whose property has been attached gives the defendant notice that he can vacate the warrant, if insufficient, and upon his failing to move to vacate the process, he will not be held to be preju-diced by a subsequent .-judgment.</p> <p>3. Process — Pleadings—Amendments—Interpretation of Statutes.</p> <p>It is the policy of our Code system to be liberal in allowing amendments of process, pleadings, and proceedings, so that causes may be tried upon tbeir merits, and to prevent a failure • of justice for reasons which may be technical or frivolous, not affecting the substantial rights of the parties. Revisal, sec. 507.</p> <p>4. Process — Returns—Jurisdiction—Amendments, Effect of — Procedure — Practice.</p> <p>Where process is erroneously made returnable before the clerk, instead of to the term of the court, the court at term, having acquired jurisdiction, may make all necessary amendments of the process and proceedings, in order to give it effectual jurisdiction, if no intervening and vested right is injuriously affected; and when the process is thus amended, it justifies the original service of any official action previously taken under it.</p> <p>5. Attachment — Process — Affidavits-, Sufficiency of — Interpretation of Statutes.</p> <p>Affidavits for publication of the summons and notice of attachment are sufficient when they show that the defendant cannot, after due and diligent search, be found in this State, that he is a nonresident and has property here of which the court has jurisdiction, and that the plaintiff has a cause of action against the defendant arising out of contract by which he expressly promised to pay a specific sum to the plaintiff for services rendered at his request, which sum is still due and owing. Revisal, secs. 759, 442.</p> <p>6. Attachments — Process—Publication—Defense After Judgment— Matter of Right — Court’s Discretion — Interpretation of Statutes.</p> <p>A nonresident defendant in attachment proceedings, against whom judgment has been rendered under service of summons by publication, and who had not had actual notice of the action until after the judgment had been rendered, may, as a matter' of right, upon showing that he has a good and meritorious defense, have the judgment vacated by motion within the statutory period, and he can avail himself of any defense he originally had.</p> <p>7. Attachments — Defense After Judgment — Cause of Action — Questions of Law.</p> <p>What is a sufficient cause to permit a nonresident defendant to vacate a judgment obtained by publication of summons in attachment proceedings is a matter of law for the court.</p> <p>8. Attachments — Defense After Judgment — Appeal and Error — Practice.</p> <p>The court having erroneously refused to vacate a judgment obtained in proceedings in attachment against a nonresident defendant by publication of summons, the judgment appealed from is ordered to be set aside and the defendant allowed to answer</p> <p>or file other pleadings within a reasonable time, to he fixed by the trial court. The property attached will remain in the custody of the court to await the determination of the action, unless replevied under the provisions of the Revisal, secs. 774, 775.</p>

<p>Appeal by plaintiff from 0. H. Allen, J., at October Term, 1912, of DURHAM.</p> <p>The facts are sufficiently stated in tbe opinion of the Court by Mr. 'Chief Justice Ciarle.</p>

<p>1. Pleadings — Plea in Bar — Former Action — Answer—Joinder—De-murrer — Practice.</p> <p>A defendant may demur to a complaint from which it appears that another action is pending between the same parties for the same cause, Revisa!, sec. 475 (3) ; and when it does not so appear, the objection may he taken by answer to the merits joined with a plea in bar. Revi sal, 477.</p> <p>2. Same — Appeal and Error — Harmless Error.</p> <p>In an action for divorce the answer set up a plea in abatement that an action was then pending between the same parties for the same cause, and further answered to the merits: Held, error for the trial judge to require the defendant to withdraw his answer to the merits before considering his plea in abatement, but harmless when it appears on appeal that his plea was bad.</p> <p>3. Pleading's — Former Action — Plea in Bar — Waiver.</p> <p>The right to plead the pendency of another action between the same parties for the same cause before judgment had is. to a large extent, a rule founded on convenience, and same may be waived or cured by dismissing the prior action at any time before the hearing.</p> <p>4. Divorce — Cross-action—Affirmative Relief — Jurisdictional Affidavits — Practice.</p> <p>While a defendant in an action for divorce may, by cross-action or petition, obtain a divorce on his own account, he must file an affidavit required by statute in such causes in order to confer jurisdiction on the court.</p> <p>5. Divorce — Cross-action — Affirmative Relief — Counterclaim—Practice.</p> <p>The doctrine that a party sued is not required, as a rule, to set up a counterclaim existent in his favor, but allowed to assert it in a different or a subsequent action, applies to a defense set up in an action of divorce, unaffected by the fact that the status of the parties is necessarily therein involved.</p> <p>6. Same — Former Action — Abatement — Same Cause — Independent Action.</p> <p>The wife, being party defendant in an action commenced by the husband for a divorce, answered denying the facts relied upon by plaintiff, but without asking affirmative relief, and without making the affidavit required in actions for divorce. In another jurisdiction she subsequently brought an independent action for divorce for abandonment, in which the defendant moved to vacate upon the ground of the pendency of the former action for divorce brought by him: Held, the present plaintiff is not the actor in the former suit, and the relief sought by her is not the same as that involved in the other issue and is not altogether dependent upon the. same state of facts, and the pendency of the husband’s action for divorce is not a bar to that of his wife subsequently brought.,</p> <p>Clark. C. J., and Walker, J., dissenting.</p>

<p>Appeal from Justice, J., at January Term, 1912, of StaNly.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.</p>

, at October Term, 1911, of Union. Tliis is an action to recover damages for slander. The first issue submitted to the jury as to the utterance of the words alleged in the complaint was answered in favor of the defendant, and the plaintiff excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Allen.

<p>1. Arbitration and Award — Agreement in Pais — Enforcement by Judgment.</p> <p>Except bj" statutory provision a court has no power to enter summary judgment 'on an arbitration and award arising by agreement in pais and not an incident to a pending suit.</p> <p>2. Same.</p> <p>Where suit is pending between the 'parties, and more especially after issue joined, and there is an agreement to arbitrate, the award to be made a rule of court, the award mas^ be enforced b3" judgment entered in the cause.</p> <p>3. Same — Fraud—Objection and Exception — Trial by Jury — Practice.</p> <p>After an action has been commenced and issue joined, and an .agreement to arbitrate has been made by the parties out of court, containing a stipulation that “the award shall be entered as judgment in the cause,” the award may be entered and enforced by final process if it is otherwise valid, giving the parties opportunity to except thereto on the ground of fraud, etc., and have the issues thus raised to be determined by a jury.</p> <p>4. Same.</p> <p>After suit commenced and issue joined between the parties for damages against a railroad company, for alleged negligence in injuring the plaintiff’s lands by fire from defendant’s passing-locomotive, thes" entered an agreement to arbitrate, out of term, with the stipulation that the defendant should promptly pas’'ll! awards made by the arbitrators, and the same shall, be entered as judgment in the cause" so as to become binding between the parties.” After the award had been rendered and when the cause was called for trial, the defendant filed affidavits tending to impeach it for fraud and partiality on the part of the arbitrators. On the issues thus joined the jury found for the plaintiff. Judgment on the verdict was Held, no error.</p>

Civil action beard on demurrer to tbe complaint. There was judgment sustaining demurrer, and plaintiff excepted and^ appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by'.MV. Justice Hoke.

, rendered at chambers, 29 August, 1911; from Davie. The summons in this action was issued on 7 August, 1913, and on the same day an order was signed by the judge holding the courts of the Tenth District, restraining the defendant, G. E. Gibbs, his agents and employees, from operating a merry-go-round or other device upon the grounds described in the affidavit, on the 10th and 12th days of August, 1911, and from doing or permitting to be done by himself, his agents or…

, at September Term, 1911, of Moose. Civil action to obtain the construction of tlie last will and testament of Levi S. Warner, deceased, and assure the proper distribution of Ms estate.

<p>Insurance, Fire — Corporations—Receivers—Policies—Nonalienation Clause — Forfeitures — Title — Interest—Possession—Interpretation of Statutes.</p> <p>A receiver of a corporation holds the title to the corporate property, under Revisa], sec. 1224, as the agent of the court for the beneficial owner, in no wise changing the interest of the owner in the property; and hence, when a policy of fire insurance has been taken out by a corporation and subsequent to the appointment of a receiver a loss occurs, the benefits under the policy are not forfeited under the nonalienation clause in the policy contract.</p>

, at December Term, 1911, of Foesyth. This is an action to recover the sum of $1,407.37, with interest from 28 January, 1898, said indebtedness being evidenced by an award. The matters giving rise to the arbitration were the result of mutual dealings and transactions between the parties, who had been engaged in various kinds of business as partners. The award was introduced in evidence, and is as follows: AWARD.

<p>Evidence excepted to not considered, as new trial is granted in plain-1 tiff’s appeal.</p>

<p>1. Banks — Certificates of Deposit — Bills and Notes — “Indorsements Guaranteed” — Words and Phrases.</p> <p>The indorsement on a certificate of deposit by a forwarding hank, sent to its correspondent bank for collection, reading “indorsements guaranteed,” is merely to satisfy the bank issuing the certificate of the genuineness of the indorsements.</p> <p>2, Banks — Certificates of Deposit — Bills and Notes — Indorsers—Pre-sentment for Payment — Laches—Debtor and Creditor.</p> <p>A bank to whom a certificate of deposit had been sent by another bank for collection did not present the certificate of deposit ■ to the payor bank for thirty-six ddys, but remitted promptly to the forwarding bank; and upon failure of the payor hank to redeem the certificate, demanded the amount thereof of the forwarding bank, and upon payment being refused, brings its action thereon, the defense being that the delay in presentment for payment had released a solvent indorser: Held, the delay of the plaintiff bank in presenting the paper for payment released the defendant bank from all obligations, thereon, and the plaintiff having paid the certificate, could not, without the consent of the defendant, make itself the creditor of the latter, and recovery was properly denied it.</p>

Appeal by plaintiff from Lyon, J., at October Term, 1911, of Eoesyth. Held: at the request of said Reynolds, and that he said they had been destroyed, and also that Reynolds and others were drinking on the night of the election, and that there was some confusion; all of which was denied by Reynolds. - George Clodfelter, wbo kept a tally-sheet, testified, among other things, that after the vote for the…

<p>Appeal by plaintiff from Lyon, J., at January Term, 1912, of MECKLENBURG.</p> <p>Tbe facts are sufficiently stated, in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

, at July Term, 1911, of Lee. This was originally a processioning proceeding, and it appearing that title to tbe land was in controversy, it was transferred to tbe. civil-issue docket by consent of all parties, and pleadings were filed. Tbe plaintiff complained for tbe possession of certain lands alleged, to be in possession of defendants, and for a judgment clearing tbe title of certain other parts of tbe same tract aleged to be in plaintiff’s possession.

<p>Appeal from Daniels, J., at February Term, 1912, of FORSYTH.</p> <p>Civil action to recover $400 claimed to be due and owing from defendant to plaintiff. There was verdict for plaintiff, judgment on the verdict, and defendant excepted and appealed.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Solee.</p>

<p>Partnership — Mortgages of a Partner — Receiver—Continued Business — Creditors—Priority of Payments.</p> <p>Tlie indorsers oil a note made to a bank for money borrowed for tlie purchase price of an interest of a retiring partner from a firm, secured by a mortgage on the partner’s interest in the firm’s assets, agreed with other creditors of the firm that a receiver, thereafter appointed, should continue the business, which he did, incurring further indebtedness of the firm by continued purchases. The indorsers paid off the bank indebtedness and brought suit to foreclose the mortgage: Held, the mortgage held by the indorsers is in subrogation to the rights of the bank, being on the individual interest of a partner, and was subject to the fluctuations in business and postponed to the payment of the firm’s creditors; (2) that class of creditors of the firm who sold goods to the receiver had the right to prior payment to the class who existed at the time of the appointment of the receiver, and who consented to his continuing the business.</p>

, at March Term, 1912, of Mecklenburg. Civil action, heard on case agreed.

■ Appeal from Long, J., at January Special Term, 1912, of GASTON. This is an action to recover possession of a tract of land. Botb parties claim under deeds from William Sams, eacb purporting to convey tbe land in controversy, tbe deed under wbicb tbe plaintiff claims bearing date of 7 November, 1859, and tbe deed under wbicb tbe defendant claims bearing date 7 March, 1860.

<p>1. Evidence — Opinion—Actual Observation — Safe Appliances.</p> <p>It is competent for a servant, injured in the scope of his employment by a rail, which he and other employees had been carrying, bounding upon him as they were placing it upon the ground, to testify that the rail would not have bounced if tongs had been supplied him, when he is speaking of facts within his own observation.</p> <p>2. Master and Servant — Safe Appliances — “Known and Approved” —Evidence.</p> <p>In order to show that a certain implement should have been furnished by a master to a servant for the performance of certain duties, the failure to furnish which is alleged as the cause of a personal injury received by the servant, it is not necessary to prove that the implement was in universal use, and several instances may be sufficient — especially, as in this case, when the implement is well known and has been in use for a long time. Orr v. Telegraph <7o„ 132 N. C., 691, cited and approved.</p> <p>3. Jurors — Misconduct—Motions—New Trial — Practice—Appeal and Error.</p> <p>A motion to set aside a verdict of the jury for misconduct of a juror must ordinarily be made before the trial court, unless it was not known to the complaining party until after adjournment, and then only on appeal in civil cases. It appearing in this case from the affidavits that a new trial should not .be granted, the motion is denied without discussion.</p>

This is an action to recover damages for personal injury-caused, as the plaintiff alleges, by the negligence of the defendants. The plaintiff was in the employment of the defendant Vanderbilt at the time of his injury, and was engaged in operating a swing cut-off saw, and was injured by a piece of wood, which he alleges he was sawing, being thrown against his face. The negligence alleged was a failure to provide a shield or guard for the saw.

, at March Term, 1912, of MECKLEN-BURG. Civil action, beard on motion for change of venue from the county of Mecklenburg, where same was instituted, to the county of Henderson, North Carolina. The action was to recover damages for the death of intestate’, caused by the movements and operation of an engine of defendant company attributed to the negligence of the company and of E. L. Patterson, the engineer and employee of defendant company at the time of the killing.

<p>Appeal from Biggs, J., at May Term, 1911, of Gaston.</p>

, at July Term, 1911, of MeckxeN-BTIRG. This is a proceeding for the allotment of dower, the petitioner claiming as the widow of R. S. Phifer, who was one of seven children of M. M. Phifer. A demurrer was filed to the original petition, which was sustained, and the .petitioner excepted and appealed to this Court. The appeal was heard at the last term, and the judgment of the Superior Court was affirmed.

<p>Appeal by defendant from Long, J., at December Term, 1911, of Bukke.</p> <p>The facts are sufficiently stated in the opinion of tbe Court by Mr. Qhief Justice Clark.</p>

<p>Railroads, Domestic — Personal Injuries — Damages — Venue — Adjoining County — Interpretation of Statutes.</p> <p>Tlie provisions of Revisal, sec. 424, permitting a plaintiff: to sue a railroad for damages for a personal injury in an adjoining count}’ to that wherein the cause of action arose, applies to all railroad companies.</p>

<p>Appeal by plaintiff from judgment rendered by Foushee, J., 25 April, 1912; from Henderson.</p>

<p>Appeal by plaintiff from Whedbee, J., at May Term, 1911, of CRAVEN.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Justice Walicer.</p>

, at Spring Term, 1912, of.Gbaham. Civil action to remove a cloud from title to about one acre of land in possession or claimed by plaintiff. On adverse intimation of the court as to plaintiff's right to maintain the action, plaintiff' submitted to a nonsuit and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Moke.

, at November Term, 1911, of MacoN. Civil action. Tbe following issues were submitted to tbe' jhiy: 1. Is'tbe defendant indebted to tbe plaintiff? Answer: Yes. 2. If so, wbat amount ? Answer: $21.31. From tbe judgment rendered, tbe plaintiff appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

<p>Appeal by defendant from Cooke, J., at November Term, 1910, of WayNe.</p>

<p>A-ppeal by defendant from Lane, J., at.Spring Term, 1912, of MacoN.</p> <p>Tlie facts are sufficiently stated in tbe opinion of the Court-by Mr. Qhief Justice Qlarlc.</p>

Appeal 'from Adams, J., at October Term, 1911, of Meck-LENBURG. Civil action to recover damages for an alleged unlawful ejection of plaintiff from passenger train of the defendant. This issue was submitted to the jury: Was the plaintiff a passenger on the defendant’s train, as alleged in the complaint? Answer: No. There was a judgment for the defendant. The plaintiff excepted and appealed.

<p>1. Telegraphs — Damages—Mental Anguish — Notice—Evidence.</p> <p>A telegraphic message ashing the addressee to “send word to the sender’s wife that he will he home the next day” does not upon its face show that the illness of the sender’s wife will' naturally and proximately result from the failure of the company to send it.</p> <p>2. Same — Verbal Notice.</p> <p>The sender, upon delivering a message to the agent of a telegraph company reading, “Send word to wife will be home tomorrow. Am well,” informed the agent that he did not send the message direct to his wife because her condition was such that he was afraid it would surprise and excite her: Held, sufficient to notify the company that her condition was serious, if not critical; that she would suffer mental anguish if the message was not sent.</p> <p>3. Same — Instructions.</p> <p>A husband delivered to the defendant’s agent a message asking the addressee to inform his wife that he would be home the next day, which the defendant failed to transmit. The instructions of the court properly restricted evidence of the wife’s consequent illness to the mental anguish suffered by the wife.</p> <p>4. Telegraph — Announcing Arrival — Evidence — Lost Letters — Collateral Matters.</p> <p>A husband, having written ’to his wife to expect him home on a certain day, afterwards telegraphed that he would be home on tile day following, and the telegram was not transmitted by the defendant: Held, the letter was a collateral matter, and, if it were necessary to produce it at the trial, evidence of its loss was sufficient which tended to show that the wife did not keep her husband’s letters, and that the husband had made unavailing search for the letter where his wife kept her letters and papers.</p> <p>5. Telegraph — Collect Message — Principal and Agent — Application of Money — Negligence—Damages.</p> <p>A husband and wife sued for damages for mental anguish caused by the failure to send a message the husband had ad-, dressed to her. ■ The next day the wife sent a message to another person, charges collect, inquiring as to where her husband was. The addressee of the last message instructed the defendant's agent to apply the money paid for the first message to the charges on the second one: Held, the addressee of the second message was without authority to thus direct the application of the money; and further, as the negligence had theretofore occurred, recovery was not barred by one payment of charges. '</p>

, at January Term, 1912, of Guilford. Action commenced, before a justice of the peace and brought by appeal to the Superior Court. The action was brought by the plaintiff to recover judgment upon two notes of the Mutual Registry Life Insurance Company of the denominations of $185 and $65, which notes were indorsed- by the codefendants. There was a verdict and judgment against the Carolina Mutual Insurance Company only, for the sum of $165, with interest from 28 October, 1907.

, at November Term, 1911, of HaR-NETT. This is a caveat filed to the will of J. M. Fowler, and was before the Court in a former appeal, 156 N. C., 340. The real question in the ease is, whether the execution of the will was procured by fraud of undue influence. The court submitted two issues, which, with the answers thereto, are as follows: 1. Is the paper-writing here offered, and every part thereof, the last will and testament of James M. Fowler, deceased? Answer : Yes. 2.

<p>1, Deeds and Conveyances — Registration—Notice.</p> <p>Actual notice of a prior conveyance of land, however full, cannot supply the notice of registration required by the statute, or affect the validity of a deed subsequently taken, but prior . in time of registration.</p> <p>2, Standing Timber — Deeds and Conveyances — Requisites.</p> <p>Talid conveyances of the title to standing timber must be sufficient in form to pass realty, and are governed by all the laws relative to the transfer of title to land.</p> <p>3, Deeds and Conveyances — Registration—Possession—Notice.</p> <p>Purchasers for value of lands sufficient in form and properly registered are not affected with notice by possession of those claiming under a prior deed, either invalid in form or not registered at the time of the other conveyance.</p> <p>4. Deeds and Conveyances — Standing Timber — Waste—Consideration — Reconveyance—Registration—Notice—Equity.</p> <p>A reconveyance of tire same standing timber between tbe same parties expressing a consideration of $1 and a release of tbe grantor “from all claims for damages on account of waste’’ which bad been committed in' violation of the restrictions of tbe first deed, is for a valuable consideration, and the grantees therein do not take subject to any equities of purchasers under a prior acquired and subsequently registered deed, given by their grantor.</p> <p>Justices Hoke and Allen did not sit.</p>

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

This is an action to recover $1,100 damages, alleged to have been caused by delay in transporting guano,- and the plaintiffs are W. M. Withrow and the Yirginia-Oarolina Chemical Company.

<p>1. Carriers of Goods — Connecting Lines — Live Stock — Bill of Lading — Execution—Evidence.</p> <p>In an action to recover damages against a terminal railroad in a connecting line of carriers for injury to a shipment of live stock, there was evidence tending to show that the consignees had made a written demand upon said carrier and filed therewith the bill of lading purporting to be that of the initial carrier, which bill of lading was shown to a witness for the plaintiff, who testified that it was the one under which the shipment was made: Hold, sufficient to admit bill of lading as evidence, without the necessity of showing its execution by the initial carrier. and that if the defendant desired to test the competency of the witness to testify or to, test his knowledge of the facts, it should have been done by a preliminary examination.</p> <p>2. Carriers of Goods — Live Stock — Connecting Lines — Terminal Carriers — Possession—Principal and Agent — Evidence.</p> <p>Where there is a nonsuit upon the evidence, in an action against a delivering carrier for damages in transit to live stock shipped over several roads, the possession of the live stock by that carrier, and its conduct and dealings with the consignee with reference to the shipment, were held to be sufficient evidence of the authority of the defendant’s agent, upon whom demand had been made, to settle tbe loss, without the necessity of introducing the bill of lading of the initial carrier under which the shipment was made.</p> <p>3. Carriers of Goods — Connecting Carriers — Live Stock — Delivery in Bad Condition — Presumptions—Burden of Proof.</p> <p>When a shipment of live stock is made over connecting lines of carriers, and delivered in bad condition to the consignee, there is a presumption, in an action for damages against the delivering carrier, that the injury occurred on its line, under the principle that, as between the plaintiff and defendant the latter is peculiarly in a position to know the facts, the burden of proof should rest on it.</p>

, at January Special Term, 1912, of EowaN. . Civil action. At tbe conclusion of tbe evidence tbe court sustained a motion to nonsuit, and tbe plaintiffs appealed. Tbe facts are stated in tbe opinion of tbe Court.

<p>Appeal from Whedbee, J., at December Term, 1912, of Robe-SON.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

, at February Term, 1912, of Wake. This is an action to recover damages under chapter 858, Laws 1909, for preventing or attempting to prevent the plaintiff from obtaining employment with certain railroad companies as an engineer. The plaintiff entered the employment of the defendant as engineer, on 31 January, 1907, and was discharged on 9 January, 1909.

, at February Term, 1912, of McDowell. Civil action to recover damages for fraud and deceit in-the sale of realty. There was allegation, with evidence on part of plaintiff tending to show that in March, 1910, and at various times thereafter and before action commenced, the defendants, Gr.

<p>Appeal by defendant from Ooolte, J., at January Term, 1912, of DURHAM.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

, at November Term, 1911, of Rocx-INGHAM. Civil action. Fourteen issues were submitted to tbe jury by bis Honor, but as tbe finding of tbe jury in response to the first issue is determinative of tbe action, it is necessary to set out only that issue, to wit: 1.

Appeal by defendant from Webb, J., at Fall Term, 1911, of Graham. This is an action to remove a cloud from title. The plaintiff claims under a grant issued to F. H. Busbee, trustee, of date 18 August, 1885, and the defendant under a grant issued to D. F. Goodhue, of date 27 May, 1872, and both parties introduced evidence to sustain their respective claims.

<p>Appeal from Long, J., at December Term, 1911, of Buexe.</p> <p>Civil action. At the close of plaintiff’s evidence the defendants moved for judgment as of nonsuit. This is an extract from the record:</p> <p>“At the close of plaintiff’s testimony the defendant demurs ore tenus to the evidence and insists the plaintiff should be nonsuited, for that there has no evidence been offered tending to show the names of the partners of the plaintiff’s company, if they are partners, and no evidence tending to show that the plaintiff company is an incorporation.” Upon an inspection of the record, such as the court is able to malee, it fails to find any evidence as to whether it is a partnership or incorporation. The court also fails to find anything in record, summons, or pleading disclosing whether the plaintiff is an incorporation or partnership. The court, therefore, being left in the dark in. this matter, upon all the evidence and upon the record directs a judgment of nonsuit against the plaintiff, and to such order the plaintiff excepts and appeals to the Supreme Court.</p>

, at November Term, 1911, of RocK-INGIIAM. Tbis action was brought to recover damages for tbe sale of certain land under mortgage, which was made under the following circumstances: The plaintiffs were solicited by two agents of the defendant to purchase one of its traction engines, they representing that the engine would haul from five to eight thousand feet of green lumber over the road from Mclver to Reidsville in'Rockingham County.

, at February Term, 1912, of UNION. Thomas S. Hemby, being the owner of the land hereinafter referred to, situate in Union County, died leaving a will of date 23 April, 1883, in which he devised said land to ~W. S. Hemby for life, and after his death to his children, if he left any, and if not, to D. J. Hemby.

<p>Appeal by defendant from Long, J., at January Term, 1912, of BuNCOMBE.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walher.</p>

, at December Term, 1911, of Foestth. Civil action to recover damages for negligently failing to deliver a telegram.

, at January Term, 1912, of McDowell. Civil action. Tbe action was tried by tbe plaintiff against these defendants to recover judgment upon certain notes which the plaintiff alleged he had purchased for value before maturity. These issues were submitted to the jury: 1. Were the defendants, and each of them, induced to sign the notes in question by fraud, as alleged in the answer? Answer: Yes, except as to T. M. McKinney. 2.

<p>Appeal from Lyon, J., at September Term, 1911, of Fob-syth.</p> <p>Tbe facts are sufficiently stated in tbe opinion of the Court by Mr. Justice Walker.</p>

,' at January Term, 1912, of MeckleN-BURG. Civil action. These issues were submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. Did the plaintiff voluntarily assume the risk and danger of being injured in the manner in which he was injured as an incident of his employment? Answer: No. 3. Did plaintiff, by his own negligeiice, contribute to his injuries, as alleged in the answer? Answer: No. 4.

<p>Appeal by plaintiff froni Lyon, J., at January Term, 1912, of MeckleNbueg.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

<p>1. County Commissioners — Control of County Affairs — Constitutional Law — Interpretation of Statutes.</p> <p>Under the Constitution and Public Laws of North Carolina the board of county commissioners are generally given supervision and control of governmental matters in the several counties. Constitution, Art. VII, see. 2; Revisal, sec. 1318 et seq.</p> <p>2. Same — Roads and Highways — “Necessary Expenses.”</p> <p>The well ordering and maintenance of the public roads of a county are “necessary expenses” within the meaning of our Constitution and statutes, and for this purpose the county commissioners are invested with full power to direct the application of all moneys arising by virtue of chapter 23 of the Revisal, in the absence of some public-local law enacted under Art. VII, sec. 14, of the Constitution, making contrary provision.</p> <p>3. Interpretation of Statutes — Repeal—Implication.</p> <p>As a general rule, the law does not favor that construction of a statute which repeals a former statute by implication.</p> <p>4. Same — Roads and Highways — Road Districts — Taxation—Direct Appropriation — County Funds — Constitutional Law.</p> <p>Chapter 567, Laws 1909, purporting to provide for the “constructing and keeping in repair the public roads of Randolph County,” was adopted by the county, as the act requires, and was designed to establish a system for working the public roads of the county, to a large extent by the township system, primarily giving the trustees of each township the right to maintain and repair the roads therein, subject to appeal to the county commissioners' in proper eases. Where the road extends through two or more townships the power to lay out, alter, or discontinue it remains with the county commissioners, but after action taken, the road is considered as divided in sections, and its control is left with the local boards. The county commissioners are authorized and directed to levy a tax of not less than 8% cents on the $100 worth of property nor more than* 15 cents thereon, the funds to be kept separate and apportioned to the various townships. It is admitted in this case that the amount thus derived was insufficient and that the roads are in a poor condition: Held, the Laws of 1909 relating to Randolph County did not have the effect of repealing the provisions of section 1379, etc., of the Revisal so as to prevent the county commissioners from expending the general county funds for the maintenance, etc., of the roads of the county.</p>

Appeal by defendant from Foushee, J., at November Term, 1911, of Mitchell. This is an action which was heard on exceptions to the report of referees. The defendant railway company, without purchasing or condemning the same, entered upon the land of the plaintiff, appropriated the same to its own use as a right of way, and constructed and is now operating its railroad across said land, without ever having compensated the plaintiff therefor.

, at Spring Term, 1912, of MeckleN-burg. Civil action heard upon a motion to amend the summons. From the order of his Honor allowing the amendment by-adding the word “administratrix” after the plaintiff’s name, the defendant excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>Appeal by defendant from Foushee, J., at October Term, 1911, of Catawba.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker. ■ c,</p>

, at Fall Term, 1911, of Wilkes. Civil action. Tbe following issues were submitted to tbe jury: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2. Did tbe plaintiff by bis own negligence contribute to bis injury, as alleged in tbe answer?' Answer: No. 3. Wliat damage, if any, is tbe plaintiff entitled to recover? Answer: $800. From tbe verdict and judgment rendered, tbe defendant appealed.

<p>Railroads — Master and Servant — Disobedience of Orders — Proximate Cause — Instructions.</p> <p>In an action for damages brought by an employee of a railroad for an injury to liis hand received in uncoupling an air-brake between two cars, the evidence upon the issue as to defendant's negligence was conflicting, alone presenting to the jury the question as to whether the uncoupling was done after the train had stopped, or while it was in motion, which would be disobedience of the defendant’s rules, of which the plaintiff was aware at the time. A charge was held to be erroneous which made no distinction, on the issue of negligence, whether the plaintiff attempted to disconnect the air-brake when the train was at a standstill or while it was in motion, and also in that the court instructed the jury that the defendant was not negligent if the injury was received by plaintiff’s act in disobedience of orders, leaving out thfc question of proximate cause.'</p> <p>Atj.ek- and I-Ioke, J.T., concurring; Clark, C. J., dissenting.</p>

Appeal by plaintiffs from order of Allen, J., from MONTGOMERY, rendered at chambers, 10 May, 1912. The facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.

<p>Appeal from Ferguson, J., at March Term, 1911, of Pitt.</p> <p>This case comes before the Court upon a petition to rebear. It is reported in 157 N. O., page 156.</p>

<p>1. Issues Sufficient — Appeal and Error.</p> <p>Issues-are sufficient when they embrace all matters in dispute and afford an opportunity for the parties to present and develop their contentions, and, when answered, are sufficient to determine the rights of the litigants and to support the judgment.</p> <p>2. Judgments — Execution Sales — Fraud—Burden of Proof.</p> <p>In an action to set aside a judgment and sale for fraud in procuring title to lands, the burden is upon the plaintiff to establish the fraud complained of by the greater weight of the evidence.</p> <p>3. judgments — Execution Sales — Lands—Remote Values — Evidence —Harmless Error.</p> <p>In an action to set aside a judgment and sale for fraud in pro- • curing title to lands, a plaihtiff’s evidence offered to show their value many years1 before the sale complained of was too remote, and inadmissible. There was barely sufficient evidence of fraud to be submitted to the jury, but the plaintiff cannot be heard to complain that the- jury were permitted to consider it.</p>

<p>1. Nonsuit — Evidence, How Considered.</p> <p>Upon a motion for nonsuit, under tlio statute, or for defend- • ant’s prayer that on the entire evidence, if believed, the verdict should he for the defendant, the evidence should he construed in the light most favorable for the plaintiff, according to the doctrine announced in Deppe v. R. R., 152 N. C.; 79.</p> <p>2. Master and Servant — Safe Appliances — Safe Place to Work — Negligence — Evidence—'Nonsuit. •</p> <p>In an action for damages for a personal injury received by the plaintiff while at work in the defendant’s pipe foundry, there was evidence tending to show that while plaintiff was endeavoring to fix, at night, under protest to his superior, a badly worn and out of repair machine, for the purpose of cutting a heavy piece of pipe, he gave one of the dies a slight tap with a hammer which had been furnished him for the work, which was an improper one, and caused a small particle of steel to break and fly off from the die or hammer and strike the plaintiff in the eye, inflicting the injury complained of; that there was an insufficiency of light, by reason of two of the three incandescent electric lights at the place being negligently out of fix, leaving only one, which the plaintiff had to hold, causing his eye to be nearer his work, in a position not required had the light been sufficient, and that the injury would not otherwise have been inflicted: Held, a permissible inference that the proximate cause of the injury was the failure of thé defendant to furnish a proper hammer and to provide adequate lights; that it was sufficient upon the question of actionable negligence, and defendant’s motion to non-suit was properly disallowed.</p> <p>3. Same — “Ordinary Tools.”</p> <p>It being' established that the master furnished the servant a hard-tempered steel liammér with which to fix an old, badly worn machine to be used in cutting a heavy iron pipe in his foundry; that the hammer furnished was known to be dangerous for that class of work, a soft-metal hammer being safer for the purpose: Held, the master is responsible in damages for an injury proximately caused to the servant by the use of the improper hammer furnished him, and the doctrine of the use by the servant of “ordinary everyday tools and under ordinary everyday conditions,” does not apply. House v. B. B., 152 N. C., 397, cited and distinguished.</p>

<p>1. Lumber Roads — Timber—Consideration—Contract to Build Railroad — Measure of Damages.</p> <p>A lumber company having purchased timber at a price less than its value, in consideration of the benefits1 to be derived by the vendors from a standard-gauge railroad it contracted to build, is liable in damages to the vendors for the difference between the price paid and the actual value of the timber, upon its failure to build the road it had contracted to build.</p> <p>2. Same — Illegal Promise — In Pari Delicto.</p> <p>A lumber company cannot avail itself of the defense, in an action for damages, that it was prohibited by our statute, Ite-visal, sec. 2598, from building a standard-gauge railroad, in consideration of which it had obtained the plaintiff’s timber at a less price than its actual value; for if the stipulation to construct the road is invalid, the plaintiffs, though they “should be partleep.s-criminis, are not in pari delicto.</p> <p>3. Same — Implied Promise to Repay.</p> <p>The vendors of timber at a price less than its value, in consideration of the benefits to be derived from the construction of a standard-gauge railroad by a lumber company, which the latter had contracted to build, but were unauthorized by law to do, may recover damages on the promise created by law to repay money of the plaintiff’s improperly obtained. Edwards v. G-oil'cls-horo, 141 1ST. C., 60, cited and distinguished.</p> <p>4. Lumber Roads — Timber—Illegal Consideration — Contract to Build Railroad — Evidence.</p> <p>In this case it was alleged that the defendant lumber company obtained deeds to plaintiff’s timber for a less price than its value in consideration of an agreement that it would build a standard-gauge railroad, which would be beneficial to the plaintiff: Held, evidence of the agreement of defendant to build the railroad was erroneously -excluded.</p> <p>5. Pleadings — Prayers for Judgment — Relief Granted.</p> <p>The facts alleged in the pleadings determine the nature of the relief to be granted, and the form of the prayer for judgment is not material.</p> <p>6. Pleadings — Joinder of Actions — Alternate Relief.</p> <p>A plaintiff may unite two causes of action relating to the same transaction and have alternate relief, that is, a judgment upon either one or the other of the causes alleged.</p> <p>Hoke, J., concurs in result.</p>

, at Spring Term, 1912, of Mecklen-burg. Controversy without action submitted to determine whether certain bonds contracted to be sold by plaintiff to the defendant are the obligations or bonds of the city of Charlotte and binding upon the municipality. His Honor adjudged the bonds to be the “general, personal, and direct obligation of the city of Charlotte,” and rendered judgment against the purchaser, the defendant.

<p>PetitioN to rehear. The facts are sufficiently stated ¿n flie opinion of the Court by Mr. Justice Walicer.</p>

<p>1. instructions, Confusing — Appeal and Error.</p> <p>When tlie instructions of the court to tlie jury are erroneous in part, and so blended with those that are proper that the Court cannot tell how the jury was influenced by them in rendering their verdict against the appellant, a new trial will be awarded.</p> <p>2. State’s Lands — Cherokee Indian Treaties — Entry—Vacant Lands —Interpretation of Statutes.</p> <p>The lands acquired by the State by the treaties with the Cherokee Indians in 1S1T and 1819 were made subject to entry by the not of 1852 only when vacant, or not previously sold under the Cherokee land statutes; and lienee an eutry made of lands required by the act of 1819, chap. 997, to be sold is invalid, and a subsequent purchaser of the same lands under the provisions of the act acquires the title.</p> <p>3. Same-Instructions.</p> <p>The lands in disiiute in this action were a part of the Cherokee Indian lands acquired.by the State under the treaties of 1817 and 1819. The defendant deraigned his title through one who purchased them in 1820, under the act of 1819, and obtained his grant in 1804. The plaintiff claimed under a grant made in 18(52 on an entry made in 1859: Held, an instruction which made the controversy to rest upon the question of the seniority of the grants was erroneous, the land not being vacant and subject to entry at the time of the entry made by the plaintiff.</p> <p>4. State’s Lands — Cherokee Indian Treaties — Vendor and Vendee— Interpretation of Statutes.</p> <p>One who acquired a part of the Cherokee Indian lands under the act of 1810 did so by purchase, establishing the relationship of vendor and vendee between tlie State and himself.</p> <p>5. State’s Lands — Void Entry — Collateral Attack.</p> <p>An entry upon t-lie State’s lands which are not vacant at the time is void, and may be attacked collaterally.</p> <p>6. State’s Lands — Entry—Limitation of Actions.</p> <p>It appearing in this case that a part of the Cherokee Indian lands, the subject of the controversy, had been sold under the act of 1819, prior to the time of entry and grant under which the plaintiff claimed, it is Held, that the plaintiff’s right is not barred by the statute of limitation pleaded. Ritchie r. Fowler, 132 N. C., 788, distinguished.</p>

<p>1. Interpretation of Statutes — Construed Together.</p> <p>Statutes relating to tlie same subject-matter should he interpreted to harmonize with each other when it can reasonably he done.</p> <p>2. Cherokee Indian Lands — Entry—Interpretation of Statutes.</p> <p>Lands acquired by treaty with the Cherokee. Indians in 1817 and 1819, and not already surveyed, were made subject to entry by Public Laws 1835, chap. 6; and the act of 1830-37, amending the act of 1835, refers to the Cherokee lands which had been reserved or allotted to “any Indian or Indians” under the treaties of 1817 and 1819 and afterwards bought by the State, and not to the lands then acquired under the treaties, providing, as to the lands reserved or allotted to “any Indian or Indians,” that they be sold in the manner pointed «-out by the statute, and prohibiting entry as to them.</p> <p>3. Same — Grants—Amendatory Acts — Repeal.</p> <p>The acts of 1830-37, requiring that the Cherokee Indian reservations he surveyed and sold, were passed several days before the Revised Statutes which incorporated the acts of 1835-30. permitting entry upon the Cherokee Indian lands acquired by the State under treaty with the Indians, and by the express terms of the Revised Statutes the acts of 1835-30 did not take effect until after the. ratification of the act of 1830-37: Held. the act of 1830-37 is not in conflict with the act of 1835-30; but. if otherwise, it was repealed by the Revised Statutes.</p> <p>4. Cherokee Indian Lands — Treaties — Vacant Lands — Evidence— ■Location.</p> <p>In order to ascertain whether there were any lands acquired by the State by treaty with the Gherokqe Indians in 1817-1818 lying west of the Meigs and Freeman line and situated in Macon County, which were vacant and subject to entry, the Court will consider the act of 1852, chap. 70, validating entries of a certain entry-taker in Macon County made after the expiration of his term of office; acts of 1852 authorizing entries of lands in said county, and others of like nature.</p> <p>5. Same — Burden of Proof — Presumptions.</p> <p>The defendant having introduced his grants for lands lying in Macon County west of the Meigs and Freeman line, which were issued 10 November, 1854, upon entries made 15 February, 1850: Helé, in the absence of proof to the contrary, it will be assumed that the lands entered were a part of those acquired by the State from the Ch'erokee Indians in 1817 and 1819, which were open to entry at that time, if there were no other land in that county then subject to entry.</p> <p>6. State’s Lands — Grants—Presumptions—Vacant Lands — Evidence —Collateral Attack.</p> <p>While it is true that a State’s grant of land cannot he attacked collaterally for fraud or irregularity and there is a presumption that it is valid and that all requisite preliminary steps have been taken, the officer must have had power or jurisdiction to issue the grant, and it may be shown collaterally that the lands described in the entries and grants were not subject to entry.</p> <p>7. State’s Lands — Grants—Location—Evidence—Entries.</p> <p>It is competent for the jury to consider the boundaries contained in an entry of land as evidence on a disputed location of the land claimed under the grant issued upon the entry; where the location of the land is not positively and clearly shown by the survey and the grant, though in a certain sense the entry is not a part of the documentary title, and the survey and description in the grant controls if sufficiently definite for location upon its face.</p> <p>8. State’s Lands — Grants—Entries—Location—Evidence—Instructions — Court Opinion on Evidence.</p> <p>In this action, involving title to lands in dispute claimed by defendants under certain grants from the State, it was error for the trial judge to direct an affirmative answer to an issue when by so doing he withdraws from the consideration of the jury descriptions in the defendant’s entries, and parol evidence tending to show that the lands claimed did not include the locus in quo.</p> <p>9. Issues — Misleading—Pleadings.</p> <p>Issues should be framed from the pleadings, and those in this case are not commended.</p>

, at December Term, 1911, of Bukke. Civil action. Tlie court submitted to the jury the following issues, fifteen in number: 1. Did .Ida E. Garrison enter the lands in controversy on 14 January and 10 March, 1902? Answer: Yes. 2. Did the defendant Williams enter the same lands on 6 January and 10 March, 1902? Answer: Yes. 3.

, at January Special Term, 1912, of GastoN. Civil action to recover damages for personal injuries. There was verdict for plaintiff and judgment, and defendant excepted and appealed, assigning for error: 1. Tbat plaintiff’s counsel, for tbe purpose of ascertaining tbeir competency to serve as jurors, was allowed to ask, over defendant’s objection, if they were interested as stockholders, officers, or employees, etc., of the Maryland Casualty Company. 2.

, at Fall Term, 1911, of Bukke. This action is to recover damages against tbe town of Mor-ganton for personal injuries, sustained, as tbe plaintiff alleges, by tbe negligence of tbe defendant in permitting a ditcb or gully to remain open across one of its sidewalks.

, at December Term, 1911, of RaN-dolph. Civil 'action to recover damages for personal injuries, caused by alleged negligence on the part of defendants. At the close - of the entire testimony, on motion of defendants and properly entered, there was judgment as of nonsuit, and plaintiff excepted and appealed.

<p>Executors and Administrators — Interest Chargeable.</p> <p>In this case it-was decided that the'account of the plaintiff, administrator, should “be reformed to charge him with interest from the date of filing the report on so much of the amount which is now adjudged to be due by him at that date, on which interest is not calculated in the judgment below”: Held, the interest should be calculated from the time the administrator filed his report, on the amount finally adjudged to be due, and not from the time the referee in the case filed his report.</p>

<p>Appeal by plaintiffs from Peebles, J., at tbe October Term, 1911, of WaKE.</p>

, at chambers, 13 September, 1911. This was a motion in' the cause for alimony pendente lite and for the custody of two children, George Mortimer Fleming and Nelle Bryan Fleming, ages respectively four and three years, and for counsel fees. His Honor rendered a judgment and made certain findings of fact and law,- to which the defendant excepted, and appealed to the Supreme Court.

<p>MotioN before Peebles, J., Wake County Superior Court.</p> <p>Tbe defendant appealed.</p>

This was a civil action. These issues were submitted to the jury: 1. Was the plaintiff’s intestate killed by the negligence of the defendant ? 2. Did plaintiff’s intestate, by bis own negligence, contribute to bis injury? 3. What amount, if any, is plaintiff entitled to recover from the defendant? The jury answered the first issue “Yes,” the second issue “No,” and the third issue “$5,000.”

, at November Term, 1911, of Dare. Quo warranto to .try title of defendant to tbe office of Clerk of tbe Superior Court of Dare County. Tbis issue was submitted to tbe jury: “Did defendant accept and qualify and enter upon tbe duties of School Committeeman of District No. 15, white race, as alleged in tbe complaint? Answer: No.”. Tbe court rendered judgment for tbe defendant. Plaintiff appealed.

, at May Term, 1911, of Caldwell. Civil action, trespass to realty. There was verdict for defendant. Judgment on tbe verdict, and plaintiff excepted and appealed. The facts are sufficiently stated in the per curiam opinion.

Appbau from Ferguson, J., at November Term, 1911, of Nash. Civil action to recover, damages for the death of plaintiff’s intestate. His Honor rendered judgment that upon the pleadings and admissions in open court, the plaintiff’s intestate was guilty of contributory negligence, which bars any recovery herein, and ordered a nonsuit. The plaintiff excepted and appealed.

, at March Term, 1912, of HeN-DERSON. Indictment for failure to work road after notice, beard on appeal from a justice of peace and determined as on special verdict. The facts presented in form as a special verdict and agreed upon by solicitor and counsel for defendant, are as follows : “That a petition for a public road in Crab Creek Township was filed with the Board of Commissioners of Henderson County. That there was also a counter-petition filed.

<p>Modified upon’petition to rehear.</p>

, at January Term, 1912, of RICHMOND. Indictment for keeping liquor on band for sale contrary to law. There was verdict of guilty. Judgment, and defendant excepted and appealed.

, at October Term, 1911, of OeaveN. The defendant was indicted under section 3354 for seduction under promise of marriage. There was a verdict of guilty, followed by judgment sentencing the defendant to the State Prison, from which judgment the defendant appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>1. Barn Burning — Bad Blood — Intent—Evidence Sufficient.</p> <p>Evidence in this ease held sufficient to sustain a verdict against the defendant for burning the prosecutor’s barn in violation of the statute, which tended to show that there was bad blood between the prosecutor and the defendant; that a few nights after the defendant had tried to induce a witness to burn the barn, the barn was destroyed by fire; that on the night of the fire the prisoner induced the witness to stay with him, and the next morning tracks were found showing the size and certain peculiarities of the witness’s shoes, leading by a devious route from the defendant’s house to the prosecutor’s bam; that the witness did not make them, and the shoes themselves indicating that some one had worn them during the night.</p> <p>2. Same — Foot Tracks — Identity — Illustrations — Instructions — Harmless Error.</p> <p>When there is circumstantial evidence that the prisoner, indicted for burning the prosecutor’s barn, 'had committed the deed, and which, among other things, tended to show that during the night he liad used the shoes of a witness for the purpose of going there, the State contending that the shoes were too small for the prisoner and that lie could have worn them by mashing down the vamps, it is not held for error that the solicitor exhibited the slioes to the jury, which were not put in evidence, by way of illustration, the court instructing the solicitor to proceed no further, and the jury to confine their consideration of the shoes to that of illustration only.</p>

<p>Cities and Towns — Recorder’s Court — Criminal Actions — Extraterritorial Jurisdiction — Constitutional Law.</p> <p>A legislative enactment creating a municipal court for an incorporated city or town, and conferring thereon jurisdiction in a territory extending one mile beyond its corporate limits, over criminal cases concurrently cognizable in a justice’s court, is valid (State Constitution, Art. IV, sec. 12) ; and does not contravene Article IV, sec. 14, of the Constitution, providing for special courts for the trial of misdemeanors in cities and towns. S. v. Doster, 157 N. C., 634, cited and distinguished.</p>

Appeal by defendant from an order rendered by Peebles, J., at chambers, 10 April, 1912; from CumbeblaNd. The facts.are sufficiently stated in the ojnnion of the Court by Mr. Chief Justice Clark.

, at October Term, 1911, of OeayeN. Tbe prisoners were jointly indicted for the murder of Joseph Whitty, who died 22 May, 1910. The charge of the State is that the deceased came to his death by means of poison administered by the defendants with felonious intent. The prisoners were convicted of murder in the second degree, and were sentenced to the State Prison for a period of ten-years each. APPEAL OF THE PRISONER BUKRILL CASEY.

, at September Term, 1911, of JonN-SON. The defendant was convicted of murder in the second degree and sentenced to serve a term of twenty-five years at hard labor in the State’s Prison. The evidence of the principal witness for the State, George D. Langley, was as follows: “July 1st, lived in 'Wendell.

<p>1. Evidence — Dying Declarations — Competency.</p> <p>Evidence of dying declarations does not depend for its competency upon a declaration by the deceased, at the time, that he was dying; for it may be shown by the attending circumstances that lie was in actual danger of death, which ensued, with full apprehension of his danger.</p> <p>2. Same — Circumstances.</p> <p>The defense being interposed, on a trial for murder, that the defendant shot the deceased and inflicted the wound from which he died, under an apprehension that he would be assaulted, and that he was in immediate danger, declarations of the deceased, “Why did he shoot me? I have done nothing to be shot for,” are competent, when it is shown that they were made when his physician informed him that he had to be operated on, that he had but one chance in a hundred to live, and that he then, acting oh his physician’s advice, sent messages for the attendance of his friends, having expressed the purpose not to do so unless he would die; and that immediately he was put on the operating table, and died that night.</p> <p>3. Evidence — Dying Declarations — Weight—Questions for Jury.</p> <p>Dying declarations are not conclusive, but only to be given such weight by the jury as they think proper, and in like manner as other competent evidence.</p> <p>4. Evidence — Dying Declarations — Proximity af Death.</p> <p>When otherwise sufficient, the competency of dying declarations does not depend upon the immediate proximity of death.</p> <p>5. Evidence — Dying Declarations — Opinion—Statements of Fact— Questions for Jury.</p> <p>When there is doubt as to whether “dying declarations” were stated as a fact or the opinion of the deceased, the question should be submitted to the jury.</p> <p>6. Evidence — Dying Declarations — Statement of Fact.</p> <p>The prisoner having pleaded justification to the charge of murder, it is Held, in this case, that the dying declarations of the deceased, “Why did he shoot me? I have done nothing to be shot for,” were statements of fact.</p> <p>7. Murder — Instructions—Verdict—Harmless Error.</p> <p>The prisoner having been acquitted of- the charge of murder in the second degree, and found guilty of manslaughter: .Held, an instruction upon the law of murder in the second degree, if erroneous, was harmless. *■</p> <p>8. Instructions — Testimony of a Certain Witness — Phases of Evidence — Legal Principles.</p> <p>Upon a trial for murder, the court instructed the jury that if they found that the prisoner’s actions, etc., were such as testified to by a witness, C., and under circumstances as testified to by him, to find the prisoner guilty of murder in the second degree : Held, not error, in this case, as it directed the jury's attention, not to the credibility of the witness, but to a certain hypothesis or state of facts, which if established would constitute the offense, the reference to the witness being for the purpose of refreshing the jurors’ memory as to the evidence.</p> <p>9. Murder — Justification — Reasonable Apprehension — Surrounding Circumstances — Questions for-Jury.</p> <p>Upon a jilea of justification- upon a trial for murder, the reasonableness of the apprehension of the prisoner that he was about to lose his life or suffer great bodily harm must be passed upon by the jury in view of the evidence and attending circumstances, and not found conclusively from the prisoner’s own statement concerning his ajiprehension thereunder. The charge in this case held correct.</p> <p>10. Murder — Justification—Self-defense—Officer.</p> <p>The same rules of law applicable to an individual pleading self-defense on a trial for murder govern when the same plea is interposed by an officer committing a homicide in making an arrest.</p> <p>11. Jurors — Opinion Formed and Expressed — Motion for New Trial —Delay—Practice.</p> <p>A motion to set aside a verdict on the ground that one of the jurors had formed or expressed his opinion, before be entered the box, that the prisoner was guilty, comes too late after verdict, when this was known to the prisoner before the argument of the case had been completed.</p> <p>12. Jurors — Opinion Formed or Expressed — Verdict — Motions— Court’s Discretion.</p> <p>It is discretionary with the trial judge, iu the ábseuce of palpable abuse, to set aside a verdict on the ground of a juror having expressed his opinion of the prisoner’s guilt before entering the jury box.</p>

Appeal by defendant from Long, J., at Fall Term, 1911, of Polic. This is an indictment of tbe defendant for tbe murder of bis wife, and tbe only question in tbe case relates to tbe competency of tbe dying declarations of tbe wife as to the cause of death.

Aim eat, from Whedbee, J., at January Term, 1912,, of Union.- Tlie defendant was charged in the Recorder’s Court of Monroe Township with larceny of some corn, charged in the warrant to be of less value than $20. The defendant was convicted, and appealed to the Superior Court. In the Superior Court he was convicted and sentenced to jail for four months. The defendant appealed to the Supreme Court.

Appeal by defendant from Justice, J'., at the October Term,. 1912, of LeNoie. The defendant was convicted upon an indictment containing three counts.

<p>1. Private Ways — Lands of Another — Adverse Possession.</p> <p>While the right to a private way over the lands of another may be acquired by a continuous adverse use for twenty years, a mere user for the required period is not sufficient to confer the right.</p> <p>2. Same — Claim of Right — Notice.</p> <p>In order to acquire a private way over the lands of another by adverse user or possession, it is necessary to show that the true owner had notice of the claim as one of right by direct evidence or circumstances tending to prove it.</p> <p>3. Private Ways — Lands of Another — Adverse Possession — Limitations of Actions — Evidence—Questions for Jury — Instructions.</p> <p>When there is evidence that the use or possession of a private way over the lands of another is consistent with the contention of the true owner that it was not hostile and adverse, but permissive, with further evidence of notice to him that it was under a claim of right, for twenty years or more, the jury should decide the question of adverse user, and it is error for the trial judge to instruct the jury to answer the issue for the one claiming the right, if they believed the evidence.</p> <p>4. Private Ways — Lands of Another — Conflicting Evidence — Findings — Inferences—Questions for Jury.</p> <p>When a fact is to be proven by circumstantial evidence, the finding of the jury is not dependent altogether upon belief in the truth of the evidence; for the jurors must not only believe the witnesses, but must draw from their testimony the inferences, from the facts proven.</p> <p>5. Private Ways — Lands of Another — Conflicting Evidence — Adverse U ser — I nstructions — Di recti ons.</p> <p>Upon conflicting evidence as to the right of a private way over the lands of another by adverse user or possession, the trial judge should explain to the jury the meaning of the term “adverse user,” and instruct them to answer the issue in the affirmative if they found, by the greater weight of the evidence, there had been such user for twenty yeará, and, otherwise, to answer the issue in the negative.</p>

<p>Appeal, by plaintiff from Bpagaw, J., at Spring Term, 1912, of OhowaN.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

Appeal by defendant from Bragaw, J., at June Special Term, 1912, of PasquotaNK. Civil action. Tbe following issues were submitted to tbe jury: First. Was plaintiff’s vessel injured by tbe negligence of tbe defendants, as alleged? Answer: Yes. Second. Did tbe plaintiffs by tbeir own negligence contribute to tbeir injury? Answer: No. Third. What damage, if any, have plaintiffs sustained? Answer: $500. Fourth.

Appeal by defendant from Bra,gem, J., at April Term, 1912, of Washington. This action was brought to recover the contract price for a certain Green Gum Dry-Kiln, and is based upon a written contract. The defendant resisted the right of the plaintiff to recover: First, because the material and workmanship of the equipment was not first-class in every particular, as guaranteed in said contract, but, on the contrary, was of an inferior quality, and in many respects defective.

<p>Appeal from Beaufokt, by defendant from the refusal by Wébb, J., to set aside a judgment for excusable neglect., on motion beard 8 June, 1912.</p>

Appeal by plaintiff from Bragaw, Jat March Term, 1912, of Cubeituck. This was a civil action for debt, the plaintiff demanding, in liis complaint, $251.02. An action bad previously been instituted between the same parties before a justice of the peacé, on the same cause of action, in which, the amount above $200 was remitted to confer jurisdiction.

Appeal by defendant from Bragaw, J., at January Term, 1912, of PasquotaNK. Civil action. Tbe following issues were submitted without objection: 1. Lid defendant contract with tbe plaintiff to personally pay for tbe freight hauled, as alleged? Answer: Yes. 2. What amount is due plaintiff by defendant? Answer: $399.10. From tbe judgment rendered, tbe defendant appealed.

Appeal by plaintiff from Justice, J., at February Term, 1912, of (xREENB. Tbe plaintiff, having under consideration the building'of a railroad from Earmville to Snow Hill or Hookerton, was offered inducements by' parties at both places.

Appeal by defendant from Webb, J., at May Term, 1912, of Beaufort. Civil action. Tbe following issues were submitted to tbe jury: 1. Did defendant warrant and represent to plaintiff that tbe borse in question was gentle in harness and safe to drive, as alleged in tbe complaint? Answer: Yes. 2. If so, was said warranty and representation false, as alleged in tbe complaint? Answer: Yes. 3. If so, was plaintiff injured in consequence thereof, as alleged in tbe complaint?

Appeal by defendant .from Cline, J., at April Term, 1912, of NORTHAMPTON. This is an .action, commenced in Bertie County, to obtain an absolute divorce, and at the return term of the summons the defendant, through counsel, filed the following motion; “The defendant, by her attorneys, appears specially in this action and moves to dismiss this action for want of jurisdiction of this court, for the following causes: “1.

<p>Appeal by plaintiff ¿rom Cline, J., at January Term, 1912, of HalieaS.</p> <p>Civil action to recover damages for entering upon the plaintiff’s land and occupying a right of way across the same. The defendant claimed the right of way under a contract alleged to have been executed by the plaintiff.</p> <p>The following issues were submitted to the jury:</p> <p>1. Is the paper-writing set out in the complaint, providing for a one-year right of way and a one-year privilege, the contract and agreement entered into between the parties hereto? Answer: No.</p> <p>2. Is the paper-writing originally prepared by Joseph P. Pippin, providing for a five-years right of way and a five-years extension privilege, the contract and agreement between the' parties, as alleged in the answer? Answer: Yes.</p> <p>3. Has the defendant failed and refused to comply with its agreement, as alleged in the complaint ? Answer: .</p> <p>4. Is the defendant trespassing upon plaintiff’s lands, as alleged in the complaint ? Answer: .</p> <p>5. What are the plaintiff’s damages? Answer: .</p> <p>From the judgment rendered, the plaintiff appealed.</p>

Appeal by plaintiff from Cline, J., at April Term, 1912, of BERTIE. This is an action to recover certain personal property, in which the defendant alleges a counterclaim, and demands damages for breach of a logging contract, and this appeal is based upon exceptions relating to the counterclaim, the jury having awarded damages in favor of the defendant.

<p>Appeal bjr defendant from Justice, J., at February Term, 1912, of GrREENE.</p> <p>Petition for dower, beard upon issues raised by tbe plaintiff.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.</p>

Appjbal' by plaintiff from 0. H. Allen■, J., at January Civil Term, 1912, of Pitt. This is an action to recover damages for slander, tbe plaintiff alleging that tbe defendant bad charged that be bad stolen certain hoes. There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Allen.

Appeal b,y defendant from Whedbee, J., at May Term, 1912, of CbayeN. Tbis is a civil action tried upon tlie pleadings, exhibits thereto attached, and agreed statement of facts, made a part of the judgment. The purpose of the action is to secure a. mandatory injunction commanding the , defendant to pave Hancock Street in accordance with the terms of a written contract entered into between the plaintiff and the defendant on 12 April, 1856.

<p>1. Drainage Districts — Remedy—Interpretation of Statutes.</p> <p>The provisions of Revisal, sec. 4026, are necessary for the cultivation and improvement of lowlands required to be drained, , and should be construed to carry into effect the beneficent purposes of the act, when practicable.</p> <p>2. Drainage Districts — Words and Phrases — Ditches—Canals—Interpretation of Statutes.</p> <p>Revisal. sec. 4026, should be construed in connection with the other sections of the chapter wherein it is found, relating to the drainage of lowlands, and therein the terms “ditch” and “canal” are used indiscriminately to designate an artificial drain.</p> <p>3. Same.</p> <p>An artificial drain in some places from 3 to 5 feet wide and from 2 to 5 feet deep, made for the purpose of cultivating and improving lowlands by draining them, is a canal within the meaning of Section 4026 of the Revisal.</p> <p>4. Drainage Districts — Canals — Maintenance—Original Construction — Interpretation of Statutes.</p> <p>It is not necessary that the owner of lands lying along a drainage canal, within the meaning of Revisal, see. 4026, shall have contributed to its original construction to make him liable to assessments for its maintenance under the provisions of the statute. . ■ 1</p> <p>5. Drainage Districts — Owners of Land — Easements — Railroads— Interpretation of Statutes.</p> <p>While a railroad company may not.be the absolute o.wner of lands in fee, they have the proprietorship and control of those constituting its rights of way; and when these lands are benefited by a canal which comes within the meaning of Revisal, sec. 4020, the provisions of the statute relative to the. maintenance of the canal apply.</p>

<p>Appeal by plaintiffs from WheJbee, J., at May Term, 1912, of Pitt.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Clvief Justice Clark.</p>

<p>Appeal by iilaintiff from Brag cm, J., at April Term, 1912, of WaKE.</p> <p>Civil action. At tbe conclusion of tbe evidence, a motion to nonsuit was sustained. Tbe plaintiff appealed.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.</p>

Appeal by plaintiff from 0. H. Allen, J., at June Term, 1912, of LeNOIR. This action was instituted to recover $610.94, as the purchase price of a car-load of wire shipped by the plaintiff to the defendants.

Atj.en. X. dissenting; Hoke, X. concurring in the dissenting opinion. Appeai, by defendant from Bra,gem, J., at Aprii Term, 1912, of Wake. Action upon contract for sale and delivery of goods, wlierein the defendants set up a counterclaim for damages for the plaintiff’s failure to deliver in accordance with its terms. The defendants appealed from the following judgment: This case coming on to he heard, and being heard before his Honor, Stephen 0.

<p>Cities and Towns — ■ Bond Issues — Bridges—Necessary Expense— Legislative Restrictions — Vote of the People.</p> <p>The building of bridges is a part of the necessary municipal ex-, pense. Hence an act which authorizes a bond issue in a certain amount “to establish a better sewerage system, etc., and other public improvements,” requiring that the question of the issuance of the bonds be first submitted to the qualified voters of the town, includes bridges within its terms, and restricts the issuance of bonds for that purpose within the requirements of the act.</p>

<p>Appeal by plaintiff from Bragcm, at April Term, 1912, of Wake.</p> <p>Action beard on appeal from a justice’s court.</p> <p>Tbe plaintiff filed bis complaint, amended by leave of court, stating bis cause of action and bis claim for a- lien on tbe premises, in effect as follows; “Tbat on 15 September, 1909, tbe owners of tbe property conveyed same to Grand Theater Company, by written lease, for tbe term of ten years, witb privilege of renewal for five additional years, at a stated and increasing rental per annum, witb a clause giving the landlords a lien for tbe rent and one of forfeiture in case of nonpayment. There was a provision in tbe lease tbat tbe lessees were to construct or erect on tbe premises,- for use in their business, a theater and auditorium, to cost not less than $6,000, and a covenant, on tbe part of tbe lessees, tbat, at tbe termination of tbe lease, tbe improvements on tbe property should belong to tbe lessors, tbe owners of tbe property, and tbe contract contained further tbe following stipulation: “10. It is mutually understood between tbe party of the first part and tbe party of tbe second part, tbat tbe party of tbe second part shall have leave to make improvements upon tbe auditorium building, but not to make any alterations or changes tbat will tend to decrease tbe value of or in any way damage said building; and, further, that the party of the first part shall be in no wise chargeable for any contracts or liabilities, whether arising from negligence or otherwise, of the said Grand Theater Company”; that said lease, having been duly registered according to law, the property was put in possession of the lessees, the Grand Theater Company, who proceeded to construct the auditorium and im-jorove the premises, pursuant to the terms. Plaintiffs had an unpaid claim amounting to about $100 for plastering and papering the hall, under a contract with the Grand Theater Company, and the said company, the lessees, having become insolvent, and the lease forfeited for nonpayment of rent, plaintiffs instituted this action against the lessors, the owners of the property, to recover the amount due and to enforce same as a valid lien against the landlord’s ownership and interest. A demurrer to demand, as stated, was sustained by the court, and plaintiffs excepted and appealed.</p>

Appeal by plaintiff from Coolce', J., at April Term, 1912, of Nash. Civil action. The plaintiff sues to recover damages in failing to furnish a certain quantity of timber under a written contract, dated 22 December, 1909. The land upon wbicb the timber grew is described as containing 140 acres, and the metes and bounds are set out with particularity. After commencement, of this action, survey was made and the land found to contain 109 acres only.

Appeal by plaintiff from Garter, J., at July Term, 1912, of Onslow. Tbis is an action to recover damages for the alleged negligent killing of the intestate of the plaintiff. The defendant denied negligence, and alleged that the death of the intestate was caused by his own contributory negligence. At the conclusion of the evidence for the plaintiff his Honor rendered a judgment of nonsuit, and the plaintiff excepted and appealed.

Appeal by plaintiff from Peebles, J., at April Term, 1912, of BobesoN. Civil action to recover damages to plaintiff’s land., caused by ( the building of a railroad embankment. Defendant duly pleaded three and five years statute of limitations. At the close of the testimony, on adverse intimation from the court, the plaintiff submitted to a nonsuit and appealed.

Appeal by defendant from Carter, J., at July Term; 1912, of SAMPSON. Civil action. These issues were submitted: 1. Was Jane Culbretb induced to sign tbe deed to M. M. Hall, instead of a mortgage, by tbe fraud of defendant M. M. Hall, as alleged in tbe complaint? Answer: Yes. 2. What amount did defendant Hall pay Melvin at tbe time tbe deed was executed by Melvin to tbe plaintiff, Jane Cul-bretb? Answer: $319. 3.

<p>1. Husband and Wife — Wife’s Separate Property — Limitation of Actions — ' Mortgages — Foreclosure—Wife’s Disability — Interpretation of Statutes.</p> <p>A married woman bolds ber sepiarate real and personal property free from any debts, obligations, or engagements of ber husband, according to tbe provisions of our Constitution and tbe Revisal, sec. 2093; and since chapter 7S, Daws of 1899, removes tbe disability of marriage, and Revisal, sec. 408, allows a wife to maintain an action without tbe joinder of her husband when it concerns her separate property, and against her husband, when it is between the husband and wife, and there being no exception in favor of the wife when she holds a claim against him, the statute of limitation will run against a note thus held by her.</p> <p>2. Husband and Wife — Limitations of Actions — Once Commenced.</p> <p>When the statute of limitation has begun to run on a note, and afterwards the wife of the debtor becomes the owner, the fact that the husband has become the debtor to his wife thereon will not repel the bar, and the time of her ownership, will be counted.</p> <p>3. Mortgages — Power of Sale — Limitation of Actions — Obligations of Contract — Statutes — Remedy—Reasonable Time — Constitutional Law.</p> <p>Revisal, sec. 1044, declaring the power of sale contained in a mortgage shall be inoperative when the note it secured is barred by the statute of limitations, is applicable to those contracts which existed at the time of its becoming operative; but, as to those, it only affected an existing remedy, which does not impair the obligations of the contract, when a reasonable time has elapsed thereafter within which the action could have been instituted.</p>

<p>1. Deeds and Conveyances — Mortgages—Consideration—Good Faith —Assignment for Creditors.</p> <p>Tlie principle that a mortgage o£ practically all of a grantor's property to secure a 'preexisting debt' should, under certain circumstances, be treated as an assignment, and subject to the provisions of law in reference to that class of conveyances, does not obtain where the transaction is T)ona, fide, was intended as a mortgage, and it appears that the property greatly exceeds in value the amount of the mortgage debt; that it was made in good faith, and a substantial part of the consideration, 7. c., $400 of the consideration of $700, then presently moved between the parties.</p> <p>2. Same — Debtor and Creditor — Pre-existing Debt — Unlawful Preference — interpretation of Statutes. ,</p> <p>The provisions of chapter 918, sec. 2, Taws 1909, repealing section 968 of the Revisal, construed with amendments to sections 967, 969, 970, and 972, thereof, relating to assignments for the benefit of creditors and prohibiting discrimination among them, extends to all cases where “property has been transferred or conveyed within four months next preceding the registration of the deed of trust or assignment, in consideration of the payment of a preexisting debt, where the grantee or transferee of such property knew, or had reasonable grounds to believe, that the grantor or assignor was insolvent at the time of making such conveyance or transfer”:' field, the four months period mentioned in the statute is to be counted, as therein stated, from the time the transfer or conveyance was made, and not from the time of its registration, as provided in the present Federal bankrupt act, and the mortgage, in this case, having antedated for more than four months the general assignment, and the grantee having no notice of the grantor’s insolvency, the claim is not an unlawful preference according to the provisions of our law.</p> <p>3. Same — Consideration Present in Part — Four Months Period.</p> <p>An assignor for the benefit of his general creditors theretofore had executed a chattel mortgage which substantially conveyed all of his assets to the net value of $1,289.58, to secure a debt of $700 upon the consideration $200 cash then advanced, and the mortgagee’s indorsement to the bank, then made, of a note for $500, $300 of which was a debt for which the mortgagee was already an indorser for the mortgagor. The mortgagee paid the notes on which he was an indorser, and in an action brought by the trustee in the deed of general assignment for the benefit of creditors to have the creditors prorate with the mortgage, it is Hold, that as to the cash consideration of $200 and the $200 for which the mortgagee indorsed at the time of making the mortgage, they being an obligation presently incurred, there was no unlawful preference given bjr the transaction; and that as to the $300 for which the mortgagor was already an indorser, the mortgage or conveyance having been given more than four months before the execution of the general assignment without knowledge of the mortgagee of the mortgagor’s insolvency, it did not come within the meaning of the statutes and was not an unlawful preference. Revisal, secs. 067, 968, 070, 972.</p> <p>4. Deeds and Conveyances — Assignment for Creditors — Mortgages— Unlawful Preference.</p> <p>A deed of general assignment for the benefit of creditors, by expressly making a prior mortgage of the grantor’s property, wherein an unlawful preference is given, subject thereto, will not, of itself, prevent a recovery of the property conveyed in the mortgage by the trustee in the deed in trust for the general creditors. Revisal, sec. 008.</p>

Appeal by defendant from Carter, J., at June Term, 1912, of Edgecombe. Civil action. Tbe plaintiff moved for judgment upon tbe admissions in tbe pleadings. Tbe court gave judgment tbat tbe plaintiff recover of tbe defendants Speigbt and Murdock all tbe stock of goods, etc., described in tbe complaint, and further, tbat tbe plaintiff recover of tbe defendant Murdock tbe sum of $1,000, witb interest from 9 January, 1912, and tbat tbe cause be retained for further orders.

<p>Appeal from order rendered by Whedbee, J., at chambers, in Greenville, Pitt County, 26 July, 1912.</p> <p>Civil action beard on return to a temporary restraining order. Tbe restraining order was continued to tbe bearing, and tbe defendant excepted and appealed.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Iloke.</p>

Appeal by plaintiff from Foushee, J,, at tire March Term, 3912, of Pitt. This is an action to -recover damages for breach of an alleged contract to lend the plaintiff $1,000.

Appeal by plaintiffs from Carter, J., at April Term, 1912, of Edgecombe. Civil action. From tbe judgment of nonsuit, plaintiffs appeal. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

<p>1. Cities and Towns — Governmental Duties — Negligence.</p> <p>Unless the right of action is given by statute, a municipal corporation may not be held civilly liable to individuals for “neglect .to perform or negligence in performing” duties which are governmental in their nature, which generally include all duties existent or imposed upon them by law solely for the public benefit.</p> <p>2. Same — Fire Departments.</p> <p>The maintenance and operation by a municipality of a fire department for the benefit of the public are duties of a governmental character, and, in the absence of a statute to that effect, a recovery may not be had for the negligent acts or omission of its officers or agents therein which cause damage to its citizens from fires.</p> <p>3. Same — Inspection of Buildings.</p> <p>The general powers conferred on municipalities by section 2929, Revisal, and other sections thereof, and the powers to regulate, inspect, and condemn buildings, Revisal, sec. 2981 ei seq., are governmental in their character; and for negligent default therein on the part of a municipality and its officers or agents no action lies, none having been given by statute.</p> <p>4. Cities and Towns — Governmental Duties — Water Plants — Business for Profit — Negligence—Damages.</p> <p>While a municipality engaged in a business enterprise for profit may be held liable in damages for an injury negligently inflicted, responsibility extends only to those burdens and liabilities incident to the business features of the enterprise; and the principle does not obtain, as in this case, 'in the negligent operation and maintenance of. a water plant or system in connection with its fire department by reason of which the plaintiff! sustained damages by fire to his property, as such matters are governmental and solely for the public benefit.</p> <p>5. Cities and Towns — Fire Department — Dangerous Conditions— Negligence — Nuisance — Damages — Governmental Duties — Demurrer.</p> <p>A cause of action against a municipality, alleging its negligent failure in permitting a building to remain in a condition to endanger surrounding houses from fire, and that the plaintiff’s house was consequently destroyed to his damage, is in effect an action to hold the municipality liable for its negligent failure to abate a nuisance, which is a governmental function, exercised solely for the benefit of the citizens; and it is demurrable.</p>

<p>Appeal by defendant, from Obange, from judgment rendered by Whedíee, J., at Durham, 26 August, 1912.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Ghief Justice Clark.</p>

Appeal by defendant from Whecübee, J., at October Term, 1911, of CUMBERLAND. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown. Civil action. From a judgment for tbe plaintiff, tbe defendant appealed.

Appeal by plaintiff from Peebles, J., at April Term, 1912, of ROBESON. This was a proceeding for tbe partition of certain lands, tbe petitioners claiming an interest as beirs of Effie Ann Stone. Tbe defendants pleaded sole seizin, alleging tbat tbe said Effie Ann Stone made a will devising tbe land to tbe defendant J. H. Byrd, and tbat tbis will bad been lost, or destroyed by some one other tban tbe testatrix.

<p>Vendor and Vendee — Sales Upon Commission — Gambling Device— Illegal Consideration — Action in Assumpsit.</p> <p>One who has consigned goods to another for sale upon commission may recover the unsold consignment and his share of the proceeds of the sale of the goods thereunder from the consignee, irrespective of the 'question as to ■ whether a gambling device was to be used, and actually used, in tbe sales thus made, tbe title of tbe goods remaining in the consignor; for thé plaintiff may maintain his action' on tbe case itpon the ground that an indebitatus has been created from which an assumpsit has arisen.</p>

<p>Appeal by defendant from Cline, J., at Spring Term, 1912, of NORTHAMPTON.</p> <p>Civil action to determine boundary line between two- tracts of land. There was verdict for plaintiff. Judgment on verdict, and defendant excepted and appealed.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Holce.</p>

Appeal by defendant from Carter, J., at July Term, 1912, of New HaNover. Civil action. From a judgment for plaintiffs, the defendants appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

Appeal by plaintiff from Cline, J., at April Term, 1912, of HERTFORD. This was an action instituted to sell an interest in an estate or parcel of land for division, heard on demurrer to complaint.