Volume 160 — North Carolina Reports

<p>Appeal by plaintiff from Foushee, J., at March Term, 1912, of Pitt.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Jlotice Ciarle.</p>

Appeal by plaintiff from Bragaw, Jat April Term, 1912, of Wake. ■ This is an action to recover damages for the alleged, negligent killing of the plaintiff’s intestate. The defendant denied that it killed the deceased, or that .it was negligent, and pleaded contributory negligence. There was no eye-witness to -the killing, the plaintiff relying on circumstantial evidence.

Appeal by plaintiff from Carter, J., at August Term, 1912, of SAMPSON. Appeal from justice of tbe peace. Tbe plaintiff sued to recover of defendant $83.50 for work done in constructing railroad for defendant. ■ Tbe plaintiff bases bis right to recover under section 2018 of tbe Eevisal of 1905. It is admitted that tbe notice required by tbe act was properly given and served, and that tbe action was commenced in apt time.

Appeal by plaintiff from judgment of Webb, J., made at chambers on 18 April, 1912; from Wake. This is an appeal from a judgment of the Superior Court of Wake County, confirming an order of the clerk, revoking an order for the examination of parties defendant, and recalling the subpoena chaces tecum that was issued with the same.

Appeal by petitioner from Ferguson, J., at September Term, 1912, of Johnston. ( Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown. Tbis petition was filed in tbe Superior Court of Jobnston County by tbe petitioner under section 2680 of tbe Revisal for restoration to citizenship. His Honor denied tbe petition, and the petitioner appealed.

Appeal by defendant from restraining order of Bragaw, J., at chambers; from PasquotaNk. Civil action heard on return to preliminary restraining order. The restraining order was continued to the hearing, and defendant excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Moke.

<p>Appeal by plaintiff from Foushee, J., ai March Term, 1912, of Pitt.</p> <p>Tbe facts are sufficiently stated in tbe opinibn of tbe Court by Mr. Chief Justice Clark.</p>

<p>1. Negotiable Instruments — Due Course — Fraud—Burden of Proof.</p> <p>When tbe defense to an action brought by a bolder upon a negotiable note acquired by him in due course, for value, before maturity, is that be bad procured the note to be given to tbe payee by false and fraudulent representations made to tbe defendant. tbe burden is on tbe defendant to show that tbe transaction was fraudulent, and that tbe plaintiff knew of the infirmity of- tbe paper at the time he acquired it. Revisal, sec. 220S.</p> <p>2. Same — Evidence—Questions of Law — Principal and Agent.</p> <p>Tbe defendant having been requested with glowing representations to purchase shares of stock in an insurance company, sought information from tbe cashier of the plaintiff bank as to the value of tbe shares, and was truthfully informed by him that be. himself, bad purchased some of these shares, and told of other prominent people who had likewise done so. The defendant purchased some of the shares, and gave his negotiable note therefor, which was subsequently purchased by plaintiff -bank, in due course, for value, and before maturity. In plaintiff's action upon the note, tbe defense was interposed that. the defendant had been induced to purchase the shares and give tbe note upon the plaintiff’s fraudulent misrepresentations.' Tbe burden of proof being upon tbe defendant, it is Held, that the evidence was insufficient to show fraud on plaintiff’s part, or on the part of its cashier.</p>

Appeal by defendant from Oa-rter, J., at August Term, 1912, of Sampson. This proceeding was commenced before the clerk, and on issue joined was transferred to the Superior Court at term to be tried.

Appeal by .defendant from Webb, J., at May Term, 1912, of Beaufort. Civil action of trespass and to try title to realty. The jury rendered the following verdict: 1. Are the plaintiffs the owner# of the land described in the complaint? Answer: Yes; all the lands lying east of the lines E down to 3, then to A. 2.- Did defendant trespass on said land, as alleged ? Answer: Yes. 3. If so, what damages are plaintiffs entitled to recover?

<p>Appeal by defendant from Allen, J., at February Term, 1912, of SAMPSON. i</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clcurlc.</p>

Appeal by plaintiff from Webb, J., at Spring Term, 1912, of Dare. A civil action to remove a cloud from title and for general relief.

<p>1. Livery Stables — Bailee for Hire.</p> <p>One who stables and feeds horses for others for pay is a bailee for hire.</p> <p>2; Same — Damages by Fire — Evidence—Negligence—Rule of Prudent Man — Questions for Jury.</p> <p>In an action to recover damages from the defendant, engaged in keeping a stable for keeping and feeding horses of others for pay, there was evidence tending to show that the defendant built a large fire on his premises, around a pot for heating water for killing hogs, within 30 feet from the stable wherein he kept the horses of plaintiff and others, wherein was stored a large quantity of hay and other combustible matter, when a strong wind was blowing from the fire in the direction of the stables, so that sparks could easily have been thus carried there; that there was no other fire around or near the stables; that the defendant immediately left the fire at the pot burning and unprotected, and a short while thereafter the stables caught and were destroyed, including the plaintiff's horse: Sold, (1) though the evidence was circumstantial, it was sufficient to be submitted to the jury upon, the question of the defendant’s actionable negligence; (2) should the jury find that the fire at the pot was the cause of plaintiff’s loss, it would be for them to determine whether, under the facts and circumstances of the case, a’man of ordinary prudence would have built such a fire at the place, and left it there unprotected.</p>

Appeal by plaintiff from Peebles, J., at March Term, 1911, of LENOIR. This is the second appeal by the plaintiff in this cause, the first being from a judgment of nonsuit at the close of the plaintiff’s evidence, and is reported in 156 N. C., 519. This appeal is from the jury’s verdict, the usual issues of negligence, contributory negligence, and amount of damage being submitted to the jury without objection.

<p>Appeal by defendant from Allen, J., at Jude Term, 1912, of LeNOIK.,</p> <p>Civil action. Tbe action was instituted for tbe recovery of $4.85 damage to a keg of syrup shipped from Bamburg, South Carolina, to tbe plaintiff at Kinston, North Carolina, and for $50 penalty for failure to pay tbe claim within tbe time allowed by statute. Tbe defendant denied liability and denied that tbe claim was ever properly filed, or that claim was filed within tbe time allowed by tbe contract or by law.</p> <p>On tbe trial plaintiff testified in bis own behalf in substance as follows: “I bought 10 gallons of an especially fine grade of syrup for table use, in Bamburg, S. C., on 31 March, 1910, paying in cash 42% cents per gallon for tbe syrup and 75 cents for tbe keg. Tbe bill of lading was sent four or five or six days later. This is tbe bill of lading. [Bill of lading is introduced by tbe plaintiff.] Bill of lading is dated 31 March, 1910, and is made out in plaintiff’s proper name. I made inquiry at both depots to know if tbe syrup bad come. I made continuous effort to get tbe syrup. Some days after I bad gotten home — it may have been three weeks — I asked if it bad come, and kept it up, inquiring every time I came borne. Sometimes I stayed maybe five weeks. I found out it bad not been delivered. I went down to see both agents. I went to tbe A. O. L. depot once or more times. I also asked them many times over tbe phone, and also went personally. The A. O. L. notified me some time tbe latter part of August .or in. Septem-her, 1910, by card, that it was there. When I made inquiry to get it out, they said it was not there. I asked what became of it. The agent said it had been delivered. I said, ‘Who to V I said, ‘Look again.’ He looked and found it, and I went down and examined it and found it was sour. I refused to take it. It was in bad condition and sour and of no value to me, and I so stated to defendant’s agent, and he helped sample it. I filed claim in writing with Mr. Cleary, agent of A. C. L. Railroad Company in Kinston. The exact date I filed the .claim in writing is 22 November, 1910, being the date the agent gave me receipt for bill of lading. Agent wanted bill of lading to go in the claim filed. He wanted me to give it over to him. I said no, that the syrup was in his hands. I would not give it to him until he said, ‘We would rather you wpuld,’ and I said, ‘Out of courtesy to you, I will do it; but I don’t have to do it.’ My claim was for damages to the syrup— $4.85, actual cost of syrup and keg. The claim has not been paid.</p> <p>“I filed claim for syrup and keg, which is $4.85. I paid 75 cents for the keg. I don’t know that keg was in good order, and keg soured with the contents. So far as I know, the keg was intact, and the trouble was the sour liquid. Syrup was of absolutely no value. I don’t know that it would make vinegar. It was syrup I bought. I didn’t want it otherwise. It was August or September. It must have been September. It was the latter part of August or September. I would not know the date, except for this receipt [witness holding receipt for bill of lading in his hand]. I presented claim for $4.85 — ■ $4.10 for the syrup and 75 cents for the keg. The bill of lading was not the claim. I presented written claim. T remember presenting separate written claim, other than bill of lading.. It was the bill of cost of the syrup, and I presented the claim with the bill of lading. I refused to take it. I refused to take the keg. It would not have paid me to take it. A sweet keg, I suppose, is worth 75 cents and a vinegar keg 25 cents.</p> <p>“Bamburg is 150 or 200 miles on the Southern from Kin-ston, the Southern being a connecting carrier on the A. C. L. Railroad Company.”</p> <p>Defendant offered in evidence bill of lading, and tbe station agent at time of trial testified tbat be was unable to say from records in tbe office tbat tbe keg of syrup bad arrived at Kin-ston on 12 April, 1910, and on tbe waybill was consigned to A. E. "Williams and showed a delivery from Southern to A. C. L. at Columbia, S. C. ’</p> <p>. Tbe court, among other things, charged tbe jury:</p> <p>“If tbe keg could have been utilized in any way, so as to save anything to tbe company, it was bis duty to do it; but if tbe whole thing was worthless, so there would have been no saving to tbe railroad company, then be would not be responsible for not taking it out. Tbe burden' is upon tbe plaintiff to show by tbe greater weight of tbe evidence that be has been damaged, and to what extent, and to what amount. So, if you find by tbe greater weight tbat they did receive this syrup and retained it till it was worthless — tbe claim is tbat it was there from April to August, and during tbe summer it soured and became worthless — and if you find tbat it is so, and tbe syrup was worthless, then you will say tbat tbe value is $4.10 and 75 cents, making $4.85, or a less amount. Whatever you find to be tbe amount of bis damages, so answer it in figures, whatever you find tbat amount to be.”</p> <p>Defendant excepted to tbe charge, and, after verdict, entered motion as follows:</p> <p>“Upon tbe admission of tbe plaintiff tbat a reasonable time for tbe arrival of tbe shipment in controversy was ten or fifteen days from 31 March, 1910, and tbe evidence, of tbe plaintiff being tbat tbe shipment did arrive at Kinston on 12 April, 1910, and tbe plaintiff further admitting tbat be filed tbe claim sued on with tbe defendant on 22 November, 1910, tbe defendant moved tbe court to adjudge tbat tbe plaintiff was not entitled to recover tbe penalty demanded in this action.”</p>

<p>Appeal by defendant from 0. II. Allen, J., at Spring Term, .1911, of TYRRELL.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

Appeal by plaintiff from Bragaw Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Allen. Tbe plaintiff is tbe son of L. R. Mayo! According to tbe allegations in tbe complaint, tbe defendant, prior to tbe death of L. R. Mayo, was engaged in selling pianos and organs, as agent for tbe said Mayo, bis compensation being a percentage of profits from tbe business.

Appeal by defendant from Foushee, J., at February Term, 1912, of CRAVEN. Tbis is a civil action brought by the plaintiffs, heirs at law of Benjamin Pritchard, deceased, to recover the sum of $1,000 for the fraudulent purchase and subsequent sale of land, and for the cancellation of deeds alleged to have been fraudulently procured by the defendant from plaintiff’s ancestor. The case was tried before his Honor, II.

Appeal by plaintiff from 0. H. Allen, J., at Fall Term, 1912, of Pitt. Civil action. Tbe plaintiff sued to recover damages for injury alleged to bave ensued from negligence of defendant. Motion to nonsuit was sustained. Tbe plaintiff appealed. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Appeal by defendant from Justice, J., at April Term, 1912, of CRAVEN. Action for injuries alleged to have been caused by negligence. Plaintiff was employed by defendant and, at tbe time be was burt, was instructed by J. D. Spradlin, tbe supervisor and bis superior officer, to load a gondola car witb iron rails, wbieb bad been twisted and bent in a wreck and were very crooked. Defendant told Spradlin tbat be would want more belp.

Appeal by plaintiff from Whedbee, J., at May Term, 1912, of GRAVEN. Civil action to recover damages for alleged burning of plaintiff’s land and timber by the negligence of defendant. There was verdict for defendant. Judgment, and plaintiff excepted and appealed.

Appeal by plaintiff from Justice, J., at April Term, 1912, of PAMLICO. Civil action to recover $1,400 alleged to be due by contract. At the close of plaintiff’s evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Holce.

<p>1. Railroads — Damage by Fire — Spark Arrester — Foul Right of Way —Negligence—Continuity of Acts — Evidence.</p> <p>In an action to recover damages against a railroad company for negligently burning over the lands of the plaintiff, evidence is sufficient to be submitted to the jury which tends to show that the defendant’s passing locomotive had a defective spark ar-rester, that its right of way was, at that iflace, in a foul and inflammable condition, and that a live spark from the locomotive was the cause of the fire, which was communicated continuously to the plaintiff’s land over the lands of others.</p> <p>2. Railroads — Damages by Fire — Unusual Results — Negligence— Presumptions — Peculiar Knowledge — Burden of Proof.</p> <p>In an action for damages against a railroad company for the burning over of the plaintiff’s lands, caused by a spark from a passing locomotive,' negligence is deducible from evidence tending to show that the fire would not have occurred if the locomotive had been properly equipped and run over a right of way in a proper condition; and the burden is upon the defendant to show the exercise of reasonable care in the operation of the locomotive, as it was under the defendant’s control, and its condition was a matter peculiarly within its knowledge.</p> <p>3. Railroads — Damages by Fire — Spark Arrester — Foul Right of Way — Negligence—Two Causes — Evidence—Questions for Jury.</p> <p>When in an action for damages against a railroad company for the burning over of the plaintiff’s land caused by a spark from a passing locomotive, there is evidence that the fire originated from a live spark that fell from the locomotive, that the track and right of way were foul with dry stubble, it is sufficient for the jury to find, upon the issue of negligence, that the fire occurred either on a foul right of way; or that it was caused by a defective locomotive, for it does not require two acts of negligence to make a wrong.</p> <p>4. Negligence — Damages—Proximate Cause — Independent Cause— Continuity — Result—Questions for Jury.</p> <p>The proximate cause of damages negligently inflicted is that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the event, and without which it would not have occurred, and it is a question for the jury when the evidence is conflicting.</p> <p>5. Same — Railroads—Demages by Fire.</p> <p>In this action for the negligent burning over of the plaintiff’s land by a spark from defendant railroad company’s passing locomotive, there was evidence that the fire burnt over other lands to those of the plaintiff, destroying a'small portion of his timber, and • under the combined efforts of his neighbors and himself was thought to have been extinguished, but “sprang up” again after about twelve days and spread to other timber of the plaintiff and damaged if: Held, (1) upon the question of proximate cause, it was for the jury to decide, under proper instructions from the court, whether the second fire was a' continuation of the first; (2) that the evidence as to distance, the lapse of time, and the efforts to extinguish the fire is competent upon the question of whether the second fire was the proximate cause of the first one, depending upon the unbroken continuity of their sequence, operating together, either successively or concurrently, each being- a contributing cause to the final result. Doggett v. R. R., 78 N. C., 306, cited and distinguished.</p> <p>6. Railroads — Damages by Fire — Contributory Negligence — Pleadings.</p> <p>In an action for damages to plaintiff’s lands from a fire alleged to have negligently been caused by a spark from a passing locomotive of defendant, it is necessary for the defendant ,to, allege, if the defense is available, that the injury thereto was proximately caused, by the intervening and independent negligence of the plaintiff in having failed to put it out.</p> <p>7. Railroads — Damages by Fire — Contributory Negligence — Anticipated Consequences — Instructions—Special Requests — Objections and Exceptions — Appeal and Error.</p> <p>While in this action to recover damages for the alleged negligent setting fire to and burning over the plaintiff’s land, caused by a spark from defendant railroad company’s passing locomotive, the court may correctly have instructed the jury to find whether, in the exercise of care, the defendant could reasonably have foreseen that the injury complained of would be the natural and probable consequence of its negligence, the fire having been communicated to plaintiff’s land from burning over the intervening lands of others, objection should have been taken by requesting proper prayers embracing these matters and the refusal of his Honor to give them.</p> <p>8. Railroads — Damage by Fire — Right of Way — Evidence—Questions for Jury.</p> <p>Testimony of a witness that the fire alleged to have caused the damages to plaintiff’s lands through the defendant’s negligence in the operation of its train over a foul or inflammable right of way, was seen on defendant’s right of way and track, is evidence sufficient upon the question as to whether tlie defendant owned the right of way where the fire occurred.</p>

<p>Appeal by defendant from Whedbee, J., at August Term, 1912, of CRAVEN.</p> <p>•Controversy without action". The facts agreed upon and formally presented are -as follows:</p> <p>1. That William B. Elanner, Sr., and Lizzie H. Elanner were husband and wife, but without children on 16 May, 1891.</p> <p>2. That on said day Lizzie H. Elanner duly executed her last will and testament in words and figures as follows:</p> <p>In the name of God, Amen.</p> <p>I, Lizzie H. Elanner, being of sound mind and memory, do make this my last will and testament. I give, grant, and devise to my beloved husband, William .B- Flanner, all my.property of every kind, real, personal, and mixed.</p> <p>"Witness my hand and seal, 16 .May,.-1891.</p> <p>Lizzie H. FlaNNEb [seal] .</p> <p>3. That thereafter, to wit, on 7 February, 1892/the plaintiff, William B. Flanner, 'Jr.j was born unto said William B. Flanner, Sr., and his said wife, Lizzie LL Flanner.</p> <p>4. That thereafter said Lizzie H. Flanner died seized and possessed of a valuable tract ’of land lying situate in Graven County, N. 0., containing 440 acres, more or less, and being the same land described in ’ the deed, of J". F.' Clark and wife to W- B. Flanner, dated 24 November, 1886, and registered in the office of the Register of Deeds of Craven County in Book 95, page 114; also an undivided one-sixth'part of the whole of certain lands situate in Mecklenburg,' N. C.</p> <p>5. That said William B: Flanner, Jr., was and is the only child of said Lizzie H. Flanner.</p> <p>6. The said will was probated on 13 November, 1893, and registered in the office of the Clerk of 'the Superior Court of Craven County in Record of Wills, Book F, 'p. 102.</p> <p>Upon said facts the court ' entered judgment: ' “This case coming on to be heard before me by consent of all parties upon an agreed statement of facts filed in the record,’ and upon said statement of facts the court being of the opinion that the plaintiff, William B. Flanner, Jr., is the owner of -the real estáte fully described and set out in said agreed statement of facts, subject to the life estate of his father, William B. Flanner, Sr., it is therefore ordered, adjudged, and 'decreed by the court that the said William B. Flanner, Jr., is the owner in fee, subject to the life estate of his father, William B. Flanner, Sr., of the entire real estate described' in said agreed statement of facts aforesaid.”</p> <p>Defendant excepted and appealed.</p>

Appeal by defendant, from Justice, J., at January Term, 1912, of WILSON. This is an action brought in the Superior Court by the millinery company to recover on certain fire insurance policies issued to it by the defendants. The coplaintiff, F. S. Hassell, was apjoointed receiver of the millinery company, a corporation which had become insolvent, and made a party to the action, at his own request.

Appeal by plaintiff from Garter, J., at March. Term, 1912, of Nash. Civil action beard on special appearance and motion to dissolve an attachment.

<p>Wills — Devises—Estates—Remainders—Tenant by the Curtesy.</p> <p>A will devised to M., testator’s niece, “all my real estate on the south side of College Street through to Bay Street, also all the land known as the Summerland land on the west side of the public road, during her natural life, and if she marries and leaves heirs from such marriage, then to her heirs in fee simple; if she dies without issue from such marriage, all the real estate loaned to her to be divided between J. and B.: Held,, (1) that said B. took only a life estate, with remainder to her children, and on her death without children or issue of her marriage then living, the ultimate devisees became the owners entitled to possession of the property; (2) the term “loaned,” under the mean-' ing of the clause, is synonymous with give, devise, or bequeath, and in this case the term applies to both parcels of land, and the devise creating only a life estate in the niece, the surviving husband is not entitled as tenant by the curtesy, though there had been issue born alive during coverture.</p>

Appeal by plaintiffs from Oline, J., at March Special Term, 1912, of SampsoN. This action was brought to cancel a deed for 42 acres of land, which was executed by plaintiff to defendant, and is alleged to have been placed in the possession of a third party, to be delivered upon compliance with its conditions.

<p>Appeal by defendant from 0. H. Allen, J., at February Term, 1912, of DupliN.</p> <p>Civil action to recover damages for breach of contract. There was allegation, with evidence on part of plaintiff tending to show, that he was the proprietor of a traveling troupe, known as the Hallie Mack Show,' and had procured a special passenger car for his actors, and, being at Weldon, N. C., on or about 6 June, 1910, he made a contract with defendant’s transportation agent, a Mr. Bodwell, that he was to be supplied with a baggage car of certain dimensions, with doors open at both ends, for the transportation of his outfit, including stage platform, tents, poles, etc., and he was to have this car, at a stated price, over defendant’s lines, on Saturday night of each week-end while the show was giving exhibitions in that vicinity. That car was furnished as per contract for Henderson, the next point, and from Henderson to Oxford, but on the third and some subsequent points defendant failed to supply car, causing plaintiff much damage, etc.</p> <p>Defendant denied making a contract for the car except to Henderson, the next point on its lines, and averred that if any such contract was made, it was with one C. E. Carter, defendant’s local passenger agent at Weldon, and that neither Carter nor Kodwell, alleged to be a local freight agent' at Weldon, had any authority to make the- contract sued on, express or implied, and offered evidence on the questions presented, including several telegrams between Carter and 0. B. Eyan, general passenger agent of defendant company, and other telegrams tending to show that the contract as made was only to supply the car to the next station, Henderson, and tending to establish other facts in support and corroboration of defendant’s position. These telegrams were at first admitted by the court, but were after-wards entirely withdrawn, his Honor charging the jury: “That all telegrams and communications between the ticket agent at Weldon, N. C., and Superintendent O. B. Ryan and J. A. Witt are withdrawn from the consideration of the jury for any and all purposes, and the jury are instructed that they cannot consider them for any purpose”; and charging further: “If the contract at Weldon was made by the agreement there with the ticket agent in the office, even though the ticket agent had- no authority to do so, it would be binding on the railroad, as the contract alleged to have been made was apparently within the scope of his authority to arrange for cars, unless he did or attempted to do something contrary to law or the rules and regulátions of the Railroad Commission of the State or Federal regulations.” Defendant excepted to both rulings.</p> <p>Plaintiff declared on a second cause of action for negligent injury in moving plaintiff’s private ear at Louisburg, causing damage. This was denied by defendant, and both parties offered evidence as to this cause of action. On issues submitted the jury rendered the following verdict:</p> <p>1. Did the defendant Seaboard Air Line Railway agree, through its agent at Weldon, to furnish the plaintiff with a baggage car every Saturday night up to and including Saturday night, 9 July, 1910, at Louisburg? Yes.</p> <p>2. If so, did it fail to furnish car at Louisburg at that time? Yes.</p> <p>3. If so, what damage, if any, did plaintiff sustain on account of such failure ? $430.</p> <p>4. Was the plaintiff’s private car damaged by the negligence of the defendant? Yes.</p> <p>If so, how much? $20.</p> <p>Judgment for plaintiff, and defendant excepted and appealed, assigning for error, chiefly:</p> <p>1. That his Honor withdrew the telegrams from the consideration of the jury.</p> <p>2. The charge of the court that ou the facts in evidence a contract with the ticket agent would be binding on the company, though the ticket agent had no authority to make it, the same being within the apparent scope of his authority.</p> <p>3. That, on motions properly made, the court refused to non-suit.</p>

<p>1. Debtor and Creditor — Different Classes of Debt — Application of Payment.</p> <p>When a payment is made by a debtor to bis creditor, wbo bolds both a secured and unsecured debt against bim, tbe debtor must direct tbe application of tbe payment either before, or at tbe time of making it; upon bis failure to do so, tbe creditor may make the application within a reasonable time, and upon his not doing so, the law will make tbe application to the unsecured debt.</p> <p>2. Same — Notice to'Creditor — Book Entries.</p> <p>The debtor who owes his creditor both a secured and unsecured debt must signify to the creditor in some manner his intention as to how a payment made to him must be applied, and an ■entry on the debtor’s book showing the application of the payment is insufficient unless it is shown to have been brought to the creditor’s attention at the time of the payment.</p> <p>3. Same — Application by the Law.</p> <p>In this case, it appearing that the debtor owed his creditor both a secured and unsecured debt, and made a payment without directing its application at the time, except by entry on his own books subsequently brought to the creditor’s attention and objected to by him, and that the application was made at the time of commencing this action, it is Held that the law applied the payment to the unsecured debt.</p> <p>4. Debtor and Creditor — Different Classes of Debt — Payment—Application Directed — Burden of Proof.</p> <p>The burden of proof is on the debtor to show that he has directed the application of a ixayment he has made to his creditor, to whom he owed both a secured and unsecured debt.</p> <p>5. Appeal and Error — Debtor and Creditor — Application of Payment —Judgment—Merits—Right of Appeal.</p> <p>It appearing in this case that the plaintiff owed the defendant two debts, one of them secured and one unsecured, and made a payment under such circumstances that the law would apply it to the unsecured claim, but which was erroneously applied by the judgment of the lower court to the secured claim, and judgment dismissing the action against defendant was entered, it is Held, that the defendant’s appeal would lie upon the merits of the case so as to relieve the plaintiff from the effect of the judgment applying the payment upon his unsecured debt, and that as that part of the judgment below dismissing the action against the defendant was proper, the judgment is modified and the action is dismissed.</p>

Appeal by plaintiff from Peebles, J., at October Term, 1911, of Wake. Civil action. These issues were submitted by the court to the jury: 1. Was the execution of the deed from A. B. Emery to Ms son Yance procured by fraud and undue influence? Answer: No. 2. Did the defendant Bryant Smith acquire title to the lands in question under the deed from J. C. L. Harris, commissioner, to him? Answer: No. 3.

<p>Appeal by defendants from Peebles, J., at May Term, 1912, of Harnett.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Chief Justice Clark.</p>

Appeal by defendant from Ferguson, J., at July Term, 1912, of Waxe. Tbis action was brought by tbe plaintiffs to test tbe validity of an election beld in Wake Forest for tbe purpose of establishing a school district therein and levying a special tax for tbe support of tbe same, under Revisal, sec. 4115, which was amended by tbe Public Laws of 1909, ch. 525, and Public Laws of 1911, ch. 135, sec. 1.

<p>1. Pleadings — Material Allegations — Answer—Absence of Denial— Interpretation of Statutes — Interstate Commerce — Evidence.</p> <p>Material allegations of tbe complaint are taken as true when not denied by tbe answer (Revisal, sec. 503) ; and when tbe complaint in an action against a railroad company for damages arising from a personal injury negligently inflicted on an employee alleges that tbe injury occurred on a train over the defendant’s road running wholly within tbe State, so that it appears that the train was an intrastate train, it is incompetent for tbe defendant to introduce evidence tending to show that the train was an interstate one, jn the absence of a denial of the allegation in its answer.</p> <p>2. Same — Federal Employers’ Liability Act — Separate Causes — Defenses.</p> <p>In an action for damages against a railroad company for a personal injury to an employee negligently inflicted, where the complaint alleges the injury sued on occurred on an intrastate train, it is incompetent for the defendant to show that the train was an interstate train, in the absence of a denial of plaintiff’s allegation in the answer, and thus defeat the plaintiff’s action on the ground of a failure of his proof, under the Federal Employers’ Liability Act, considered as a separate cause of action. As to whether it is necessary for a plaintiff relying on this Federal statute to specially plead it under certain conditions, discussed by Hoke, J.</p> <p>3. Federal Employers’ Liability Act — State Courts — Contributory Negligence — Procedure—Interpretation of Statutes.</p> <p>The Federal Employers’ Liability Act, in so far as it undertakes to regulate and provide for fixing responsibility as to the defendant’s negligence, is not dissimilar to the provisions of the Revisal, sec. 2624, the chief difference being upon the issues of contributory negligence and assumption of risk; and as the Federal act makes no specific regulations as to the methods by which the fact of contributory negligence should be established, when the action is brought in the State court, the procedure should conform as near as may be to that of the State law applicable, including the “character of action, the order and manner of trial, the rules of pleading and evidence, etc.”</p> <p>4. Same — Partial Defenses — Diminution of Damages — Pleadings.</p> <p>While matters in diminution of damages are not required to be specially pleaded under our statutes, except in cases of libel and slander (Revisal, sec. 502), but may be made available under the general issue, in view of the requirement of the Federal Employers’ Liability Act, that the fact of contributory negligence should in some way be established, and that procedure for that purpose has been defined and approved under numerous decisions of our Court construing the State statutes controlling the question, the fact of contributory negligence, as referred to in the Federal statute, should be considered and treated as a partial defense, coming within the terms of the local law, and to máke same available it must be set up in the answer and proved as the State statute requires. Revisal, see. 483.</p>

<p>1. Injunction — Nuisance—Sawmills—Evidence—Burden of Proof.</p> <p>The operation of a sawmill is not a nuisance per se, and the erection of one will not be enjoined unless it be proved by the complaining party that it will be, in fact, a nuisance under the particular circumstances of the ease.</p> <p>2. Same — Conjecture—Averments,</p> <p>When the erection of a sawmill is sought to be enjoined, the proof that it will be a nuisance if operated must be shown by evidence which amounts to more than a conjecture; and unless the facts are made to appear from which the courts may see that its operation, under the circumstances shown, will amount to a public or private nuisance, the injunction will be denied, and the mere averment of the plaintiff to sustain his contention is insufficient, the question being one of law upon the facts ascertained.</p> <p>3. Injunctions — Nuisance — Sawmills — Cities and Towns — Ordinances — Evidence—Bona Fides.</p> <p>In proceedings to enjoin the erection of a sawmill on lands adjoining those of plaintiff, whereon he resided, upon the alleged ground that its operation would affect the comfort of the plaintiff’s family and the value of his property, it is competent to show that the plaintiff had operated a cotton gin nearer to his residence than the proposed mill would be, and that he had procured an ordinance prohibiting other sawmills from being built within the corporate limits of the town, wherein he operated one, upon the question as to whether the plaintiff was actually apprehensive of the injury, or whether the ordinance was passed in his interest and at his instance to destroy competition.</p> <p>4. Injunction — Public Nuisance — Special Injury.</p> <p>A complaining party cannot maintain an action for the commitment of a public nuisance without. showing some special injury peculiar to himself, and when such is not shown an injunction will not issue.</p> <p>5. Cities and Towns — Public Nuisance — S.awmills — Courts—Void Ordinances — Injunctions—Remedy at Law.</p> <p>An ordinance declaring the operation of a sawmill within its limits to be a nuisance, which in fact -is not one, does not deprive the court of its authority to pass upon the question; and it appearing in this case that the mill in question, the erection of which is sought to be enjoined, would not be a nuisance per se, and it not appearing that it would be one in fact, but that the ordinance was passed at the instance of the complaining party to prevent competition, it is held that the injunction should not issue, and that the party be left to his action for damages at law, should it hereafter appear that he has sustained any.</p>

Appeal by defendant from Cline, J., at May Special Term, 1912, of WaKe.

<p>1. Carriers of Goods — Injury to Stock — Negligence—Evidence—■ Nonsuit.</p> <p>In an action for damages against a railroad company for tbe negligent injury to two mules in a car-load shipment, which resulted in their death, there was evidence tending to show that the rules were “tired and droopy” on their arrival at destination, and not in good condition; that they die.d on the night following the day of their receipt, were dissected, and their bodies were discovered to have been bruised, after removing the skin, and their internal organs in a state of congestion and decomposition. The shipment had been receipted for by the initial carrier as in good condition: Held, a motion to nonsuit was properly disallowed, and the issue as to defendant’s negligence properly left to the jury.</p> <p>2. Carriers of Goods — Negligence—Expert Evidence — Questions of Fact — Assignment of Claim.</p> <p>In an action agaipst a common carrier for damages for the negligent injury to two mules in a car-load shipment, resulting in their death, testimony of an expert veterinarian, who had made a post-mortem examination and found them bruised and in a bad condition internally, that, from the examination, in his “opinion the mules had been jammed up in the car,” is incompetent as an expression of an opinion as to a fact of which he had no personal knowledge and which was involved directly in the issue. Summerlin v. R. R., 138 N. C., 551, cited and approved. As to whether the plaintiff can recover for one of the mules sold to another and replaced by him, without evidence that the cause of action had been assigned, Qumre.</p>

<p>1. Wills — Devises—Advancements—Definition.</p> <p>An advancement is an irrevocable gift in presentí of money or of property, real or personal, to a cbild by a parent, to enable the donee to anticipate his inheritance or succession to the extent of the gift.</p> <p>2. Wills — Devises—Advancements—Intent—Interpretation of Statutes.</p> <p>Property transferred or money paid by the parent to the child is prima facie an advancement, but the presumption thus raised may be rebutted by parol, even when there is a recital of a consideration in a deed, by showing that the parent had a contrary intent at the time; and this rule as to the intention of the testator is not altered by our statute. Revisal, secs. 133 and 1556, Rule 2. HolUser v. Attmore, 58 N. 0., 373, cited and applied.</p> <p>3. Reference — Findings—Appeal and Error — Wills—Advancements —Intent—Practice.</p> <p>The findings of fact by a referee, upon the consideration of the evidence and approval of the trial judge, when there is some evidence to support them, will not be reviewed on appeal; and on the appeal taken, in this case, upon the question as to whether a gift by the testator was an advancement, being one of fact as to the intention of the testator, the judgment below is affirmed.</p>

Appeal by plaintiffs from Peebles, J., at April Term, 1912, of CuMBERLAND. Civil action.

Appeal by plaintiffs from Bragatw, J., at January Term, 1912, of PASQUOTANK. TMs is an action to recover a tract of land in Pasquotank County. The only question now presented is whether a deed from Enoch and Fred B. Sawyer to Cary Weston and Joseph Seguine, dated 3 February, 1820, and offered in evidence by the plaintiff, was properly excluded by the court.

Appeal by plaintiff from Peebles, J., at July Term, 1912, of Lee. Petition to condemn a further right or privilege in defendants’ land, heard on appeal from clerk of Superior Court. The petition filed before the clerk in due form and proxierly served on the. parties is as follows: “This, the petition of the Yadkin River Power Company, respectfully showeth: “1.

<p>Appeal by plaintiff from Whedbee, J., at March Term, 1912, of SCOTLAND.</p> <p>Case beard on appeal from clerk of Superior Court. The suit was a petition to recover a legacy of $500 in the will of J. B. McCall, deceased, to bis daughter Maggie, now married to her coplaintiff, W. E. York. This legacy, by the terms of the will, was payable primarily upon the “rents of the home place” under lease at the time of his death to defendant, the duration arid terms of which do not appear, and at the termination of the lease the same homestead was devised chiefly to others. Before the clerk, on perusal of the pleadings, there was judgment for the legacy, appointing a receiver to take charge of said home place and pay said legacy from rents. On the hearing in the Superior Court, his Honor being of opinion that there were issues arising on the pleadings to be determined, entered judgment remanding the cause, with directions to settle and certify the issues to the Superior Court for trial by jury in term.</p> <p>Plaintiff excepted and appealed.</p>

Appeal by defendant from CTüne, J., at April Term, 1912, of Beetle. This is an action, with claim and delivery, to recover tbe possession of certain saw-logs. In January, 1903, James Morris sold tbe poplar, pine, and gum timber on bis tract of land in Bertie County to Brown & Bundy, wbo assigned tbe contract to tbe plaintiff. The timber was to be cut and removed from tbe land within eight years from 1 January, 1903.

<p>Master and Servant — Negligence — Safe Place to Work — Night Work — Lights—Blasting—Evidence—Questions for Jury — Non-suit.</p> <p>In an action for damages for personal injuries negligently inflicted, there was evidence tending to show that the plaintiff was required to, work, on a dark, cloudy night, in digging holes, for the defendant power company for the erection of electric towers, about 6 or 7 feet deep, where blasting was being done; and while the plaintiff was digging in one'of these holes-he was told by defendant’s foreman to “come out of the hole,” as blasting was then to be done in two others; that the plaintiff at once came out of the hole he was digging, but the foreman, with the other men, had run away with the only lantern there, leaving him in darkness, so that in running from the place of danger he fell across a sill which had been left over the opening of a hole, to his injury: Held, it being tbe duty of tbe defendant to bave provided tbe plaintiff with a safe place to get away from tbe bole, its failure to supply a light, under tbe circumstances, was actionable negligence; and under the conflicting evidence in this case, it presented a question for tbe determination of tbe jury; and a judgment of nonsuit was erroneous.</p>

<p>Appeal by plaintiff from Peebles, J., at July Term, 1912, of Lee.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

Appeal by plaintiff from Justice, J., at May Term, 1912, of Moore. This is an action to recover personal property, tbe plaintiff claiming to be tbe owner thereof under a chattel mortgage, executed by tbe defendant Person on 18 February, 1911, to secure $210, of which $160 was the purchase price of a mule and $50 for supplies to be furnished. The defendant admitted the execution of the mortgage, but denied that he was indebted to the plaintiff.

<p>1. Fraud — Deceit—Pleadings—Parties—Possession—Claim to Property.</p> <p>In an action to recover possession of a mule taken in exchange for a horse, and for damages for deceit and false warranty as to the horse, a demurrer of a codefendant on the ground that his name appeared only in the title, without allegation as to him, should not be sustained when it is alleged in the complaint that the defendants were in joint possession of the mule, and appeared that both had replevied the mule, and given the bond required by statute, it being evidence against the party demurring, not only as to his possession, but as to his claim to the property.</p> <p>2. Fraud — Deceit — Contract — Election — Affirmance — Damages— Procedure.</p> <p>One who has fraudulently been induced to enter into a contract may elect to repudiate the contract and recover back what he may have received under it, and recover what he may have parted with, or its value; or he may affirm the contract, keeping whatever property or advantage he may have derived under it, and recover in an action of deceit the damages caused him by the fraud.</p> <p>3. Same — Equity—Rescission.</p> <p>While, as a rule, a party to a contract induced by fraud may not elect to rescind it and recover damages for the fraud, the rule is based upon a perfect rescission of the contract, where the defrauded party has sustained no damages except those he may have actually paid thereunder; and it has no application where he may not thus be placed in statu quo, as where he has suffered damages which the rescission and the damages based thereon cannot repair.</p> <p>4. Fraud — Deceit — Contract—Replevin—Consistent Causes of Action.</p> <p>An action for deceit in the making of false representations inducing plaintiff to exchange a mule with defendant for a horse is not necessarily inconsistent with a previous replevin to recover the mule. «</p> <p>5. Fraud — Deceit — Contracts — Damages—Right of Action — Conditions Precedent.</p> <p>In an action for deceit in the making of false representations inducing the plaintiff to exchange a mule for defendant’s horse, the plaintiff may enforce his rights under the contract and at the same time maintain his action for deceit, without offering to return the benefits he may have received under the contract, as a condition precedent.</p> <p>6. Fraud — Deceit — Tort — Waiver—Damages—Implied Promise to Pay.</p> <p>In an action of deceit, in mating false representations which induced the plaintiff to exchange his mule for defendant’s horse, the plaintiff may waive the tort and recover his damages as for money had and received upon an implied promise of the defendant to pay it.</p> <p>7. Fraud — Deceit—Scienter—Evidence.</p> <p>In an action of deceit in making false representations which induced the plaintiff to exchange his mule for defendant’s horse, there was evidence tending to. show that the defendant made the false representations that the horse was sound of body and limb, without defect, and was gentle, safe, and was an “all-round” good horse, suitable to the plaintiff’s needs, etc., which were calculated, intended to, and did deceive: Held, the evidence is sufficient to prove the defendant’s scienter.</p> <p>8. Courts — Jurisdiction — Pleadings — Damages Alleged — Part Recovery.</p> <p>When the complaint states a cause of action for deceit and false warranty, alleged in good faith, in such sum as will confer jurisdiction upon the Superior Court, that" court does not lose its jurisdiction thus acquired by failure of the plaintiff to pro.ve the damages alleged in its entirety; and, Held,, in this case, that if the lower court was correct in holding that no damages for deceit in the sale of a horse could be recovered, yet the recovery upon the warranty alone in a sum less than that necessary to be alleged to confer jurisdiction would not oust the jurisdiction acquired by the court.</p>

<p>Appeal by plaintiff from Justice, J., at August Term, 1912, Of UNION.</p> <p>Civil action beard on appeal from a justice’s court, to the Superior Court of Union County.</p> <p>At close of testimony, on motion, there was judgment of non-' suit, and plaintiff excepted and appealed.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Jusiice Hoke.</p>

<p>Contracts — Interpretation—Monthly Estimates — Final Estimates'— Measure of Damages — Evidence—Quantum Valebat. ,</p> <p>In an action to recover upon a written contract to construct and repair a public road, it thereunder appeared that payments to the plaintiff were to be made, from month to month, upon the certificate of the defendant’s engineer as to the amount and value of the work performed by the plaintiff within the month, deducting 10 per cent until the final completion and acceptance of the entire work, when the percentage so retained and the balance due, as then estimated and certified by the engineer for the whole work, should be paid, expressly providing that in making the final estimate the engineer should not be bound by the preceding estimates and certificates which were to be given by him monthly, but that they were to be considered as “approximate to the final estimate.” The defendant annulled the contract before completion, as it had a right to do according to its provisions, and in the plaintiff’s action to recover for .the balance due, it is Held, the measure of its damages was the reasonable value of the work done that had not been received in the monthly payments, the monthly estimates by the very terms of the contract not being conclusive, but only to be received as evidence of the value of all the work which the plaintiff had done.</p>

Appeal by plaintiffs from Garter, J., at April Term, 1912, of GUILFORD. Civil action to correct and reform a deed. This issue was submitted without objection: “Did plaintiffs contract to purchase of defendant the land described in article 1 of the complaint? Answer: No.” The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>Railroads — Crossings — Signals — Negligence — Look and Listen— Contributory Negligence — Evidence — Nonsuit — Questions for Jury.</p> <p>In an action for damages against a railroad company for the negligent killing of plaintiffs intestate by the defendant’s train while crossing its track on a public road in a buggy with another, there was evidence tending to show that, before attempting to cross the track, the intestate stopped, looked, and listened, and did not see or hear the approaching train until the horses were on it; and that there was an obstruction to the view which rendered it impossible to sooner see the train; that the intestate could have been seen by the engineer on the train a distance of 300 or 400 feet, and conflicting evidence as to whether the usual signals for the crossing had been given by those in charge of the locomotive: Held, a charge by the court, under this evidence, that the plaintiff’s cause of action was barred by the contributory negligence of the intestate, would be an expression of opinion by the court upon the question as to whether the intestate had exercised the care required of him under the circumstances, which is prohibited by the statute. Revisal, sec. 535. Cooper v. R. R., 140 N. C., 209; Mayes v. R. R„ 119 N. C., 758, cited and applied.</p>

Appeal by plaintiffs from Whedbee, J., at July Special Term, 1912, of DURHAM. Civil action to recover $280. From a judgment for defendant, tbe plaintiffs appeal. Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Appeal by plaintiff from Whedbee, J., at July (Special) Term, 1912, of DukiiaM. Tbis is an action to recover damages for mental anguish, alleged to have been caused by tbe negligent failure of tbe defendant to deliver a telegram. At tbe conclusion of tbe evidence for tbe plaintiff, bis Honor entered judgment of nonsuit, upon motion of defendant, and tbe plaintiff excepted and appealed.

<p>1. Carriers of Passengers — Negligence — Boarding Passengers — Starting of Train — Contributory Negligence — Evidence—Questions for Jury.</p> <p>Upon conflicting evidence, in an action against a railroad company for damages for tbe negligent killing of plaintiff’s intestate, as to whether the defendant’s passenger train suddenly moved forward at once after “All aboard!” had been called by the conductor and immediately after tbe signal for starting had been given, preventing, in the presence of tbe engineer and porter, tbe plaintiff’s intestate from gaining a foothold on the steps of tbe car he was endeavoring to enter as a passenger, because of tbe speed of tbe train, in consequence of which be was knocked under the cars by a truck left there by an express'company, and killed; or as to whether the intestate’s death was attributable to his own negligent act in attempting to board the car of a moving train after having been warned not to do so, the question of defendant’s actionable negligence is one for the determination of the jury. Roberts v. R. R., 155 N. C., 70, cited as controlling.</p> <p>2. Carriers of Passengers — Negligence — Dominant Cause — Joint Tort Feasors — Indemnity—Contribution.</p> <p>When the negligence of a railroad company causes the passenger getting aboard of its passenger train to be thrown against a truck of an express company left by the latter company near the train, and thence beneath the moving train, to his death, and the railroad company is sued for damages for the wrongful death thus inflicted, assuming that the truck was negligently left in a position to contribute to the injury, the negligence of the railroad company would be the dominant cause thereof; but if otherwise, the two companies would be joint tort feasors, and, in this case, there would be no right of indemnity or contribution existing in favor of the railroad company against the express company, its codelinquent. Gregg v. Wilmington, 155 N. O., IS, cited and distinguished.</p>

<p>Appeal by plaintiff from Whedbee, J., at August Term, 1912, of Guilford.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

<p>Appeal by plaintiff from Garter, Jat June Term, 1912, of Edgecombe.</p> <p>Tbis case was submitted upon a case agreed, tbe material facts of which are as follows: On 5 March, 1905, Leon A. "Williams executed a note to the defendant for $3,000, payable on demand, and in the body of the same he agreed that the proceeds of certain policies of insurance on his life, payable to his estate, which .he had deposited with defendant, as collateral, to secure his said note, should be applied to the payment of the note, and any surplus should be held by the defendant upon the following-terms and conditions, which we copy from the note: “If I shall come under any other liability, or enter into any other agreement with said bank, while it is the holder of this obligation, it is hereby agreed and understood that any excess of collaterals upon this note shall be applicable to such other note or claim held by the said Pamlico Insurance and Banking Company against said Leon A. Williams, and in case of any exchange of the collaterals above named, the provisions of this note shall extend to such new collaterals.”</p> <p>Leon A. Williams, on 16 November, 1909, executed to one Job Cobb, in his own name, though as cashier of defendant bank and for it, his note for $44.64, the consideration being a ■ debt which he owed the bank. The original debt of $3,000 has been paid, except the sum of $181.50, for which a renewal note was given by Williams, which is now due and unpaid. On 1 October, 1909, the firm of Williams, Weddell & Co., of which Leon A. Williams was a member, had been engaged in the insurance business as agents of defendant, and on said date were indebted to defendant, as its agents, in the sum of $828.30, for premiums collected and not paid to defendant. This debt is now due, -no part thereof having been paid. The firm is insolvent. Leon A. Williams died insolvent on 24 October, 1911, and plaintiff is his administrator. Defendant, after demand, made a statement to plaintiff of its administration of the said collaterals, showing the total proceeds of the policies in its hands to be $1,985, and it was thereupon agreed that defendant should retain so much of the said proceeds as is legally applicable to its claims, the same to be determined by the court under the submission, and pay the balance to the plaintiff. It was admitted, as part of the facts, that defendant, by its cashier, demanded of Leon A. Williams, 1 October, 1909, the payment of the open account due by Williams, Weddell & Co., to which Williams replied: “You have, to secure it, everything I possess now, and I can, do nothing for you.” The balance due on the original debt ($181.50) is not in controversy. The court held, upon the admitted facts, that defendant had a lien on the proceeds of the policies, under its contract with Leon A. Williams, for the debts of $44.64 and $828.30, and adjudged that said amounts and the costs be retained by defendant out of said proceeds,, and the balance paid to plaintiff, wlm appealed from the judgment.</p>

Appeal by Oldham from. Whedbee, J., at August Term, 1912, of G-uilfoRD. This proceeding was commenced for the partition of certain lands among the heirs of J. W. Foust, and the administrator of Foust was made a party.

<p>1. Principal and Agent — Broker—Definition—Presumptions—Knowledge Impfied — Vendor and Vendee.</p> <p>One dealing with a cotton broker engaged in the business of selling cotton on commission for several firms is presumed to know that the duties of a broker are to bring the seller and the purchaser together in the transaction as vendor and vendee, payment being made directly from the latter to the former; and where it appears that the transaction was made directly between the supposed broker and the purchaser, the bills of lading for the cotton, invoices, etc., being in the name of the former, the one from whom the supposed broker has purchased the cotton for himself cannot be held liable for damages on the ground that the cotton furnished did not come up to specifications, and that he had requested the purchaser to give this broker his business on a former occasion.</p> <p>2. Same — Evidence—Questions for Jury.</p> <p>In an action to recover the difference in value of cotton, on the ground that it had not come up to specifications, alleged to have been bought of the defendant through his broker, there was evidence tending to show that the transaction was made with the alleged broker as an individual transaction, as purchaser of the cotton from the defendant, and as vendor of the plaintiff: Held, that evidence tending to show that the alleged broker received a commission on the sale, i. e., that he was allowed a percentage on the invoice price of the defendant, cannot he held as a matter of law to constitute the one selling the cotton to the plaintiff the defendant’s broker; but under the conflicting evidence an issue of fact is raised for the determination of the jury.</p> <p>I-Ioke, X, dissenting.</p>

<p>Appeal by defendants from Garter, J., at March Term, 1912, of Nash.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walicer.</p>

Appeal by plaintiff from Garter, J., at October Term, 1912, of ORANGE. Civil action, beard on demurrer to complaint. Tbe court, being of opinion tbat plaintiff’s cause of action was founded on an illegal transaction, gave judgment sustaining demurrer, and plaintiff excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Holce.

Appeal by plaintiff from Daniels, J., at Fall Term, 1911, of YADKIN. Tbis action was brought to recover damages for breach of a contract to sell land. A cause of action for specific performance was alleged, but afterwards abandoned. The jury returned the following verdict: 1. Did the defendant contract in writing to convey to the plaintiff the lands described in the complaint, as alleged in the complaint? Answer: No. 2.

<p>Appeal by defendant from 0. H. Allen, at March Term, 1912, of BaNdolph.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

' Appeal by plaintiff from Ferguson, J., at February Term, 1912, of Rowan. Civil action, brought to recover damages for the alleged negligent killing of R. H. Pender. The issue of negligence was determined by the jury in favor of defendant. Plaintiff appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>Appeal by plaintiff from 0. S. Allen, J., at March Term, 1912, of Stanly.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

Appeal by defendant from Garter, J., at August Term, 1912, of SAMPSON. Tbis action was brought to recover damages for tbe burning of plaintiff’s timber, alleged to bave been caused by defendant’s negligence in permitting sparks to escape from its engine. Defendant was engaged in operating a steam logging skidder for tbe purpose of removing saw-logs from its woods, to be carried over its tramroad to tbe mill.

Appeal by plaintiffs from Coolce, J., at August Term, 1912, of MONTGOMERY. This action was commenced against tbe defendant, Aug. Ray, to recover a crop made in 1911, and Allen & Co. were permitted to interplead.

<p>1. Partition — Parties—Title.</p> <p>A party to proceedings to partition lands cannot claim title to the land allowed to another party under a grant from the State taken out after the proceedings, and the principles announced in Garter v. White, 134 N. C., 406, have no application to this ease.</p> <p>2. Partition — Parties — Estoppel—State’s Lands — Grants—Vacant and Unappropriated — Titles.</p> <p>J. and his wife were parties to proceedings to partition certain lands, and it appeared by the petition that A. died in 1847, seized and possessed of the lands, and that the wife of J., and others, were his children and heirs at law, and as such were tenants in common thereof. Partition was made and finally adjudicated in 1849: Held, that J. and those claiming under him were estopped to deny that A. was the owner of the lands in 1847, and that as the lands were not vacant or unappropriated in 1850, any grant that J. may have obtained at that time from the State to the lands were invalid to pass title to any one claiming thereunder.</p>

<p>Appeal by plaintiff from 0. H. Allen, J., at May Term, 1912, of New HaNoveb.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

Appeal by defendants from 0. H. Allen, J., at April Term, 1912, of DavidsoN. Civil action. At tbe close of tbe testimony of plaintiff, who was tbe only witness examined, tbe defendants moved to non-suit. Motion overruled. Tbe defendants, tbe construction company and tbe railroad company, appealed. Tbe facts are sufficiently stated in the opinion of tbe Court by Mr. Justice Brown.

<p>1. Appeal and Error — Unanswered Questions — Objections and Exceptions — Assignments of Error — New Matter.</p> <p>An unanswered question asked on tbe trial of a cause is not objectionable; and cannot be properly introduced for the first time in an assignment of error for the purpose of excepting to it.</p> <p>• 2. Evidence Corroborative — Declarations of Parties.</p> <p>A party to an action may prove his own declarations, which are consistent with his own evidence, and made before the trial, as corroborative evidence.</p> <p>3. Issues — Answer Conclusive — Second Issue — Evidence—Harmless Error.</p> <p>When the jury by their answer to the first issue have determined the action, evidence on the second issue, erroneously excluded, is harmless error.</p>

Appeal by defendant Marshall from Lyon, J., as of the August Term of Surry, from judgment rendered in Winston, 11 September, 1911. This cause was originally tried at August Term, 1909, of the Superior Court of Surry County, before Jones,, J., upon issues submitted to and answered by a jury. Judgment was rendered, and an appeal taken to the Supreme Court. The judgment was affirmed in an opinion delivered by Mr. Justice Hoke, 155 N. 0., 169.

<p>1. Contracts — Courts—Interpretation.</p> <p>Tbe courts can only interpret a contract'lawfully entered into between parties legally and mentally competent to make it.</p> <p>2. Insurance — Policy Contract — Interpretation — Accident — Independent Cause.</p> <p>A policy of accident insurance creating a liability on tbe part of tbe insurer for injuries sustained by tbe insured “directly and independently of all other causes, through external, accidental, and violent means,” is lawful and enforcible by tbe insurer in accordance with its terms.</p> <p>3. Same — Instructions.</p> <p>In an action to recover under an accident insurance policy for tbe loss of eyesight wkereunder the insurer was liable for injuries sustained by tbe Insured “diréctly and independently of all other causes, through external, accidental, and violent means,” there was evidence tending to show that the plaintiff’s eyesight was lost by reason of an old cataract existing before the accident, as well as that the accident had caused the loss of vision. The court charged the jury that if they found by the greater weight of the evidence that the plaintiff’s loss of his eyesight was caused directly and independently of all other causes, through external, accidental, and violent means, to answer for the plaintiff; but otherwise if the accident operated in connection with another cause: Held, the charge was correct and not objectionable on the ground that it would deny a recovery in a case where there was a former malady and an accident, and the latter directly produced the injury as the efficient cause thereof, though the malady itself would have resulted in the same injury, at a later time.</p> <p>4. Insurance — Policy Contracts — Interpretation—Accidents—Independent Cause — Definitions—Liability.</p> <p>In construing a policy of accident insurance against injuries sustained by the insured “directly and independently of all other causes, through external, accidental, and violent means,” it is Held, (1) When an accident causes a diseased condition which; together with the accident, resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or^death; (2) When at the time of the accident the insured was suffering from some disease', but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause; (3) When at the time of the accident there is an existing disease which, cooperating with the, accident, resulted in the injury or death, the accident cannot be considered as the sole cause, or as the cause independent of all other causes.</p> <p>5. Insurance — Policy Contracts — Interpretation — Accidents—Independent Cause — Proximate Cause — Causal Connection.</p> <p>When the loss under a policy -of accident insurance' is made, by its terms, to depend upon injury or death “resulting from accident, independent of all other causes,” the rule of proximate and remote causes cannot be applied, the question being, upon an issue of fact presented, whether the disease with which the insured was suffering at the time of the accident had causal connection with the injury inflicted by the accident.</p> <p>6. Instructions — Alternate Theories — Appeal and Error — Special Requests for Instructions — Procedure.</p> <p>The failure of the trial judge to charge the jury upon alternate theory correctly stated and arising upon the evidence in the case, does not necessarily render the charge incorrect, and no reversible error will be held on appeal for the mere failure of the judge to charge the alternate theory in the absence of a special instruction ashed and refused.</p> <p>7. Instructions — Construed as a Whole — Appeal and Error.</p> <p>The charge of the trial judge to the jury should, be construed as one connected whole, and not in detached portions, and it will not be held for error when, thus considered, the meaning of the charge clearly appears, and the jury could not have been misled.</p>

<p>Appeal by plaintiff from Daniels, J., at June Term, 1912, of EOCKINGHAM.</p> <p>Civil action. At the conclusion of the evidence a motion of nonsuit was sustained. The plaintiff appealed. When the pleadings were read plaintiff’s counsel stated that they abandoned the allegations, charging the existence and nonenforcement of a town ordinance as set out in the complaint.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.</p>

<p>Appeal by plaintiff from Daniels, J., at Spring- Term, 1912, of Ashe.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.</p>

Appeal by defendant surety company from Daniels, Jat March Term, 1912, of Foesyth. Civil action beard on demurrer to complaint. In tbe complaint, recovery is sought against defendant tbe Illinois Surety Company for $346.56 on account of material furnished by plaintiff for building a rectory for St. Pauls Church in the city of Winston, N. 0.

Appeal by plaintiff from 0. H. Alim, J., at September Term, of FORSYTH. This is a controversy submitted without action, and the material facts are, that William Broadnax, the husband of Alice Broadnax, the plaintiff herein, was an employee at the plant of the Keynolds Tobacco Company, and while so employed, was killed. He left several children, both minors and adults, but no property, either real or personal.

Appeal by plaintiff from Daniels, J., at June Term, 1912, of ROCKINGHAM. Civil action, involving tbe validity of a deed purporting to bave been executed by Nellie Eakestraw to Emma Pratt, one of ber daughters, and also involving tbe validity of tbe will of said Nellie Eakestraw, now deceased, in wbicb sbe devised ber estate to Emma Pratt, to tbe exclusion of ber other children. On issues submitted, tbe jury rendered tbe following verdict: 1.

<p>Appeal by plaintiff from Cline, J., at February Term, 1911, of WARREN.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

Appeal by plaintiff from Justice, J., at September Term, 1912, of MECKLENBURG. Civil action to recover damages for breach of contract. Defendant having denied liability, set up counterclaim for damages by reason of breach of same contract by plaintiff.

<p>1. Debtor and Creditor — Judgments — Liens—Different County— Homesteads — Registration — Appraisers’ Returns — Judgment Roils.</p> <p>A creditor obtained judgment and bad it sent to another county and laid off the debtor’s homestead, and the appraisers’ report was found in the latter county in the clerk’s office, in a metallic filing case, labeled “Homesteads.” Thereafter the homesteader conveyed a part of the homestead lands: Held, (1) his vendee acquired title subject to the lien of the judgment; (2) the judgment having originally been obtained in another county, the appraisers’ returns could not have been found in the judgment rolls, and were properly filed in the county wherein the homestead was laid off; (3) the registration of the homestead is unnecessary unless the exemption is made on the debtor’s petition.</p> <p>2. Limitation of Actions — Judgments—Liens—Homesteader in Possession — Adverse Possession — Deeds and Conveyances — Color.</p> <p>In order to plead the statute of limitations against a judgment lien, the vendee of lands embraced in a homestead may show that the allotment was invalid; but, in this case, the vendee having bought subject to the judgment and been in possession for twenty years, any irregularity in the allotment could only be taken advantage of by the judgment creditor.</p> <p>3. Homestead — Conveyance—Interpretation of Statutes — Limitation of Actions — Adverse Possession.</p> <p>The act of 1905, now Revisal, sec. 686, providing that a homestead exemption cease upon its being conveyed by the homesteader, by express terms is not retroactive, and the vendee cannot acquire title under color until seven years adverse possession since 1905. It is further Held, that the ten-years statute in this case had not run against the lien of the judgment.</p> <p>4. Judgments — Liens—Homestead—Procedure—Trusts and Trustees — Execution.</p> <p>In this action, the homestead conveyed being subject to a lien of a judgment creditor, it is Held, that in accordance with the relief demanded, the vendee be declared a trustee to convey to the purchaser at the execution sale under the judgment, and that the administrator of the deceased homesteader be authorized to sell the lands and apply the proceeds to the satisfaction of the judgment; though a simpler remedy for the judgment creditor would be to sell under his execution.</p>

Appeal by defendant from Daniels, J., at July Term, 1912, of MECKLENBURG. Civil action to recover damages for personal injuries, instituted by Louisa Price, feme plaintiff, and ber husband, E. S. Price. The record shows that, at the opening of the trial, plaintiff’s counsel stated in open court that it was not their intention to claim damages for plaintiff’s husband, E. S. Price.

<p>1. Carriers of Goods — Live-stock Bill of Lading — Owner’s Acceptance — Delivering Carrier — Negligence.</p> <p>A common carrier may not make a valid contract which will have the effect of relieving:' it from liability; and irrespective of the ownership of the car, it cannot relieve itself from liability for damages to a car-load of live stock it has received from its connecting line, in good condition, but in an unsuitable car, and delivers them in bad condition, by reason of a requirement in the original bill of lading that the shipper must inspect the car and reject it if unsuitable.</p> <p>2. Carriers of Goods — Live-stock Bill of Lading — Written Notice— Actual Notice.</p> <p>That the requirement that the written notice provided for in a carrier’s live-stock bill of lading is not necessary under the circumstances of this case, see s. o., 156 N. C., 451.</p>

Appeal by defendant from Daniels, J., at July Term, 1912, of MECKLENBURG. Civil action brought by the receivers of the Carolina Ice Company, insolvent, to recover of defendant, as holder and owner of 62% shares of stock, $100 each, in said corporation, 31% shares being on original subscription, issued July, 1908, and 31% by reason of a stock dividend, issued 11 February, 1909, the claim being that nothing of value had been paid on either issue.

<p>1. Banks — Assets — Trusts and Trustees — Pooling Shares — Illegal Combination — Costs and Expenses. ,</p> <p>The assets of a bank are a trust fund, primarily for its creditors and secondarily for its stockholders, and where the officers and directors thereof have entered into an illegal pooling of the stock to secure control of the bank, and money has been expended in the drafting of the illegal agreement and in an endeavor to maintain it in the courts, the bank being a mere nominal party to the action and not a party to the contract, it is unlawful for the directors and officers to charge up this expense to the bank, for it is their individual liability.</p> <p>2. Same — Shareholders—Right of Action.</p> <p>When the officers and some of the stockholders of a bank have incurred court costs and other expenses in their effort to maintain an illegal agreement to pool their stock to secure control of its management, which they have caused the bank to pay, an action will lie in behalf of a stockholder ■ to compel the officers and stockholders participating in the illegal agreement to repay the money of the bank thus wrongfully used. In this case the question of ultra Hires does not arise.</p> <p>Brown, J., dissenting.</p>

<p>1. Cities and Towns — Bond Issues — Statutes — “Aye” and “No” Vote — Separate Readings — Constitutional Law.</p> <p>While the bonds issued by Orange County for road purposes under chapter 600, Public-Local Laws of 1911, are for necessary expenses, yet if the act was not passed in conformity with' Const., Art. II, sec. 14, the county commissioners are not authorized to levy a tax in excess of the constitutional limitation with which to pay interest and provide for a sinking fund. Analysis of the constitutional requirements for the levying, of taxes by a county for necessary and other expenses by -Clark, C. X, under this article and under Article V, sec. 6, and Article VII, sec. 7.</p> <p>2. Same — Prior Statutes — Interpretation of Statutes.</p> <p>An act which has been regularly passed, upon separate days, with the “aye” and “no” vote required by Article II, sec. 14, of the Constitution, authorizing the levying a tax for the purpose of working the public roads, cannot be construed in connection with an act passed for issuing bonds for road purposes, not passed as required by this section of the Constitution, so as to authorize a tax levy in excess of that limited by the Constitution. Commissioners v. Commissioners, 157 N. C., 514, cited and distinguished.</p>

<p>1. Corporations — Insolvency — Directors — Advantage—Debtor and Creditor — Trusts and Trustees — Notes—Indorsers—Payment— Collateral Bonds.</p> <p>Tlie principle that tbe directors oí a corporation stand in a fiduciary relation to it, and may not, in case of its insolvency, bold to themselves a preference or advantage obtained or attempted over other creditors or more meritorious claimants, does not apply to instances where the directors had been indorsers on the corporation note to a bank, which had become insistent for payment, and the defendant directors issued bonds secured by mortgage on the corporation’s assets, purchased them, and with the bonds as collateral to their individual note, obtained the money and with it satisfied the corporation’s note on which they had been indorsers, under an agreement to that effect with the bank.</p> <p>2. Same — Repudiation—Advantage.</p> <p>When the note of an insolvent corporation has been paid by its directors, who had indorsed it, by giving their personal note to the bank with bonds secured by a mortgage on the corporate assets, issued to take up the corporation’s note, and which they had by agreement bought for the purpose, under a pressing demand of the bank for payment, the corporation or its receivers will not be allowed to accept the proceeds of the transaction and repudiate the stipulation attaching to it.</p> <p>3. Corporations — Insolvent—Directors—Debtor and Creditor — General Assets — Mortgage—Equity—Cancellation.</p> <p>The directors of an insolvent corporation having issued bonds secured by a mortgage on its assets to take up the corporate note on which they were indorsers, and having bought the bonds and given their personal note with the bonds as collateral, and taken up the old note, ior the payment of which the creditor was pressing: it is Rein, (1) that the moneys received from the sale of the bonds to the directors were never general assets of the corporation, and, in the absence of bad faith, could not be recovered by the corporation; (2) that the only relief the corporation is entitled to is the cancellation of the mortgage; (3) the directors are general creditors of the corporation according to the amount of their respective claims.</p>

<p>Trusts and Trustees — Uses and Trusts — Statute of Uses — Active Trusts.</p> <p>A devise of lands to be held in trust for tbe purpose of collecting the rents and profits and paying them over to the beneficiary named, and to perform other duties, creates an active trust, evidencing the testator’s intent that the legal title should remain in the trustee to execute the uses designated; and, the trust being active, it is not executed by the statute of uses, and the lands may not be subjected to execution issued on a judgment debt of the cestui que trust. The distinction is drawn between this case and those wherein there has been a devise or conveyance of rents and profits to a person directly, by Allen, J.</p>

<p>1. Telegraphs — Free Delivery Limits — Mailed Telegram — Negligence —Evidence—Questions for Jury.</p> <p>When the addressee of a telegram is beyond the free delivery limits of the telegraph company’s terminal office, and there is conflicting evidence as to whether, the defendant company promptly mailed it to the addressee, a finding of the jury in plaintiff’s favor, under an instruction to find for the defendant if the telegram was thus mailed, is conclusive.</p> <p>2. Telegraphs — Mental Anguish — Interstate Messages — Lex Loci Contractus — Place of Negligence — Recovery.</p> <p>When a telegraph company receives for transmission. a telegram in a State where a recovery for damages for mental anguish alone is not permitted, to be delivered in North Carolina, where such recovery is permitted, and there is negligence in the delivery here, the decisions of this State control. Semille, if the negligence occurred elsewhere, a recovery could also be had here in such case. $</p> <p>Brown, J., dissenting.</p>

<p>1. Building and Loan Companies — Shareholder—Status.</p> <p>A holder of stock in a building and loan association must share in the losses as well as the profits of the concern, and is liable for duly authorized assessments to cover the losses of the corporation.</p> <p>2. Same — Borrower — Mortgages — Cancellation — Assessments — Usury.</p> <p>A shareholder in a building and loan association, who has borrowed money from it and secured its payment by a mortgage on real property with his shares of stock as collateral, with provision both in his certificates and. the mortgage for the payment of assessments, may not compel the cancellation of the mortgage upon the repayment of the principal sum and interest, unless he has also paid his assessment to meet a loss of the corporation ; and the usury laws have no application.</p>

Appeal by defendant from Coolce, J., at June Term, 1912, of GrUILFORD.

<p>Appeal by defendant from Whedbee, J., at July (Special) Term, 1912, of Durham.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

Appeal by plaintiff from Lame, J., at May Term, 1912, of IREDELL. On 27 February, 1912, the attorney of the plaintiff wrote the following letter to the defendant: Lynchburg NotioN Company, Lynchburg, Va. Gentlemen :■ — Mr. Thomas Thompson has placed his account against you in my hands for collection. He has shown me all your correspondence and a copy of his, together with a copy of your contract with him.

<p>Appeal by defendant from Brcugam, J., at May Term, 1912, of JOHNSTON.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by ■Mr. Chief Justice Ciarle.</p>

<p>1. Claim and Delivery — Judgment—Interest—Questions for Jury— Interpretation of Statutes — Practice.</p> <p>Under a contract reserving title in tbe seller, tbe plaintiff: brought claim and delivery proceedings for a balance due on the purchase price and interest, and the defendant denied plaintiff’s title, alleged a want of consideration, and claimed damages arising from a breach of warranty. The jury found that defendant owed the plaintiff $840 on his outstanding notes given for the purchase, and that he had been damaged by breach of plaintiff’s warranty in a certain amount: Held, in proceedings of this character, interest is not allowed as a matter of law, and upon the jury’s finding, the defendant was only chargeable with interest on the $840 from the date of the judgment. If the trial court had been in doubt as to verdict’s bearing interest on the notes, he should have referred the matter back to the jury. Re-visa!, 582.</p> <p>2. Appeal and Error — Assignments of Error — Motions—Judgments,</p> <p>It is not necessary for the record on appeal to, contain appellant’s assignments of error when the appeal is only from the judgment entered, and a motion to dismiss the appeal and to affirm the judgment of the lower court, on that account, will'be denied.</p>

Appeal by defendant from Lyon, J., at April Term, 1912, of MbckleNbueg. This action is to recover damages for personal injuries caused, as the plaintiff alleges, by the negligence of the defendant. The plaintiff was in the employment of the defendant as a conductor, and was engaged at the time of his injury in replacing a derailed car on the track.

<p>Appeal by plaintiff from Lyon, J., at March Term, 1912, of Mecklenburg.</p> <p>The facts are sufficiently stated in the opinion of the Court hy Mr. Justice Wallcer.</p>

<p>1. Wills — Statutory Right.</p> <p>Tlie right to dispose of property by will is entirely statutory, and in order to make a valid will, the requirements of the statute must be observed.</p> <p>2. Same — Nuncupative Wills — Personalty—Interpretation of Statutes — Request—“Bear Witness” — Words and Phrases.</p> <p>Our statute, Revisal, sec. 3127 (3), among other things, requires that a nuncupative will must be proved “on the oath of at least two credible witnesses, present at the making thereof, who state that they were specially required to bear witness thereto by the testator himself,” etc.: Held,, it is sufficient to show, on the question of the testator’s requesting that the witnesses “bear witness” to the will, that believing himself to be in extremis, he told the witness during his last illness that he wanted to make a will, who, at his request, called in another, and while they were at his bedside, testator gave specific directions for the disposition of his personal property; and though he had theretofore expressed his wish to make a written will, and had failed in his effort to do so, the matters sought to be established as the nuncupative will were declared at a time he was apprehensive he would become unable to talk, and his death occurred about four days thereafter. ■</p>

Appeal by plaintiff from Lyon, J., at March Term, 1912, of GrASTON. Civil action. This issue was submitted to the jury: “Is the defendant indebted to the plaintiff on account of the bond or obligation sued on, and if so, in what amount? Answer: Yes; $400.” His Honor rendered judgment for $225. Both plaintiff and defendant excepted and appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

<p>1. Tax Deeds — Recitations Sufficient.</p> <p>Tbe recitations in a tax deed of swamp lands made by tbe sheriff to tbe Governor in 1799, that no person listed tbe lands for taxes; that it was advertised in tbe newspapers agreeable to law and was sold pursuant to sucb advertisement, a fair offer was made to any person to pay tbe taxes, but no one offered to do so, and tbe same was struct off to tbe Governor and bis successors in office, are sufficient to justify tbe levy and sale of tbe lands for taxes, and tbe deed is not inoperative and void on that account.</p> <p>2. Tax Deeds — Recitations—Prima Facie Evidence — Presumptions— interpretation of Statutes.</p> <p>Since chapter 137, Laws 1887, now Revisal, sec. 2909, the recitals in a tax deed are prima facie true, and the burden of proof is on the one seeking to establish the contrary.</p> <p>3. Same — Constitutional Law.</p> <p>The Legislature having the power to change the rules of evidence, Laws 1887, ch. 137, now Revisal, sec. 2909, changing the burden of proof to the one attacking a tax deed, to show that the recitations therein are not true, embraces tax deeds theretofore made.</p> <p>4. Tax Deeds — Recitations—Listing for Taxes — Sufficiency—Interpretation of Statutes.</p> <p>A tax deed made by the sheriff to the Governor in 1799', among other things recited, that “the land was not given in by any person or persons whatever for the payment of taxes thereof,” and it is Belch, that this made the land liable to taxation under Laws 1782 (Iredell’s Statutes, ch. VII, see. 6, p. 430), and the objection to the deed, that it does not state that the land had not become “liable to be sold for taxes,” is untenable.</p> <p>5. State's Swamp Lands — Tax Deeds — Appraisement and Valuation —Subject to Taxation — Presumptions—Burden of Proof — interpretation of Statutes.</p> <p>As to a tax deed for swamp lands, Revisal, sec. 4047, makes it presumptive evidence that the assessors valued and appraised the land therein conveyed, with the burden of proof to the contrary on the one setting up its invalidity; and further, by the provisions of Revisal, sec. 2909, it must be shown by him that either such property was not' subject to taxation for the year or years named in the deed, or that the taxes had been paid before the sale, or that the property had been redeemed from the sale.</p> <p>6. Slate’s Lands — Tax Deeds — Presumptions—Interpretation of Statutes — Constitutional Law.</p> <p>Revisal, sec. 4047, making the recitations in a tax deed for swamp lands prima facie true, is constitutional and valid.</p> <p>7. Tax Deeds — Seal — Interpretation of Statutes — Record—Agreement of Parties — Appeal and Error. 1</p> <p>The objection in this case that the sheriff did not affix his seal to a tax deed is cured by Pell’s Revisal, sec. 949 (a), relating to all deeds executed prior to 1 January, 1895, and is also obviated in this case by an agreement amending the record, by the parties, that the seal was in fact affixed.</p> <p>8. Tax Deeds — Description — Parol Evidence — State’s Lands — Grants.</p> <p>The tax deed for the lands in question is held, in this case, not too indefinite in its description of the lands, it referring to a grant from the State which identified them sufficiently, and they could also be identified by parol evidence; but as the tax deed was made to the Governor, and the lands were originally granted by the State, if the description in the grant were too indefinite, the title would have remained in the State.</p> <p>9. State’s Lands — Literary Fund — Subsequent Grants — Interpretation of Statutes.</p> <p>By the Laws 1825, ch. 1268, sec. 1, all vacant and unappropriated State swamp lands were transferred to the Literary Fund for the support of common schools; by Revised Statutes, 1837, ch. 67, sec. 3, all the swamp lands not theretofore duly entered and granted to individuals were vested in that corporation in trust for education and establishing schools, and a like provision was made in Laws 1842, ch. 36, sec. 2. Hence, a grant of lands, embraced in the above transfers to the Literary Fund, made in 1849, was void, the grantee admittedly not having been in possession, at any time.</p> <p>10. State’s Lands — Literary Fund — “Vacant and Unappropriated”— Interpretation of Statutes.</p> <p>State swamp lands granted in 1795 were sold for taxes and a valid deed made thereof to the Governor in 1799, and transferred by the State to the Literary Fund under the various legislative acts. In 1849 the State issued a grant which is set up as a defect in the title of the Literary Fund on the ground that it did not meet the statutory requirement that the lands be vacant and unappropriated: Held,,the objection was untenable under the provisions of Laws 1788, p. 115, Iredell’s Collected Statutes.</p>

Appeal by plaintiff from Cline, J., at June Term, 1912, of Caldwell. This is a controversy submitted without action upon the following statement of facts: 1. The plaintiffs stated in the caption are partners, trading under the name and style of Lenoir Drug Company, and said copartners are residents and citizens of the county and State aforesaid. 2.

<p>Appeal by defendant from Bragarn, J., at Spring Term, 1912, of Perquimans.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.</p>

<p>Appeal by plaintiff from Cline, J., at May (Special) Term, 1912, of MecKleNbueg.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.</p>

<p>Appeal by defendants from Garter, J., at Spring Term, 1912, of GrRANVTLLE.</p> <p>Proceedings to assess property of defendant for taxation, in-. stituted before the Corporation Commission and heard on appeal to the Superior Court, before his Honor, Frank Garter, judge, at April Term, 1912, of the Superior Court of Granville County. On' the hearing it was made to appear that- the Oxford Seminary Construction Company, incorporated, “for the purpose of constructing, altering, enlarging, etc., buildings and dwelling-bouses, etc., to be used for school purposes, etc., etc., had rebuilt the buildings of Oxford College',” a seminary of learning, conducted and controlled by E. P. Hobgood, who owns 264 of the 543 shares of the capital stock of the company. That the building of this Oxford College is the only thing done thus far by the company in the exercise of its chartered rights. That all of the company’s assets consist of this lot of lands and buildings, situate in the town of Oxford. That the real estate in question and the buildings thereon are “used exclusively for school purposes and have been so used for many years past.” Stating facts more in detail, the affidavit of said E. P. Hob-good was filed in terms as follows: “That he is the president of Oxford Seminary Construction Company, a corporation duly created by and under the laws of the State of North Carolina, with its principal office in the town of Oxford, said State and county; that said Oxford Seminary Construction Company is the owner of' the buildings ánd grounds now used and occupied by the Oxford College and wholly and exclusively devoted to school purposes, and the total number of shares of the capital stock issued and now outstanding of said corporation is 543, of the par value of $25 per share, making a total of the capital stock of said corporation-issued and outstanding of $13,515; that for the purpose'of completing buildings to be used for and exclusively devoted to school purposes it became necessary for the said corporation to borrow the sum o*f $10,000, which was secured by a deed in trust upon the property of the said corporation; that of the said $10,000 thus borrowed, $1,000 has been repaid, leaving a balance due by said corporation on said loan of $9,000; that the said corporation leases the said grounds and buildings to this affiant for school purposes; that said ground and buildings are exclusively used for and devoted to school purposes; that this affiant pays as rental for said school property the interest on the money borrowed by said corporation, pays the insurance premiums on the buildings situate thereon, keeps said buildings and grounds in good repair, and pays into the treasury of said corporation the sum of $250 per annum for the purpose of creating a sinking fund with which to discharge the principal of tbe money borrowed as aforesaid; that said lot of land and the buildings thereon have been used exclusively for school purposes for more than fifty years; and that during all these years neither the State nor the county nor the town of Oxford have ever demanded the payment of any taxes on said school property.” On these, the facts chiefly relevant to the inquiry, the Corporation Commission held the property liable for taxation, basing its ruling principally on the ground that the term “held for educational purposes” in the constitutional provision did not sanction or permit the exempting of school property used for the private and personal profit of the proprietor and head of a school, and that neither the Constitution nor the statute made or intended to make any exemption in such case. Quoting from the learned opinion of Hon. E. L. Travis, who spoke for the Commission: “It will be noted that the language of the Constitution is somewhat different from that of the statute; that the Constitution authorizes the General Assembly to exempt only ‘property held for educational purposes,’ but the statute declares as exempt ‘property used exclusively for educational purposes’ and buildings and lands ‘wholly devoted to educational purposes, exclusively occupied and used by a school or college for such purpose.’ The matter was argued before us upon the language of the statute only, and without reference to the Constitution, but it is clear that the statute cannot operate to exempt any property except that which is authorized by tbe Constitution to be exempted. It, therefore, could not, if it attempted to do so, exempt any property except such as is ‘held for educational purposes.’ We think that the words ‘held for educational purposes,’ included only the property so held in respect to its title and beneficial ownership; that the property itself, and all its profits and accretions, are dedicated to educational purposes, in such sense that neither the property nor its profits could be diverted by the holder, either in whole or in part, to any other use or purpose, as distinguished from property which, though used for educational work, is held for a private person or corporation for his or its own benefit, with a view to private gain or profit, and which the holder may at will put to any other use or appropriate to his or its private purposes.” And further: “To make a valid exemption, the property must come within the provision of both the Constitution and the statute. To be within the former, it must be Reid for educational purposes.’ To come within the latter, if general property, it must’ be 'used exclusively for educational purposes,’ and if buildings and lands, it must be ‘wholly devoted to educational purposes’ and must ‘belong to and be actually and exclusively occupied and used by’ an incorporated college, school, etc., for such purpose.</p> <p>“It will be noted that the buildings and lands, of which the property in question consisted, to be exempt under the statute, must belong to as well as be ‘exclusively used’ by the school so using them. We might dispose of this particular matter on the ground that they did not belong to the school, but to the construction company. We find, however, that Mr. Hobgood, who conducts the school, is president of the construction company, and is the owner of the greater part of the capital stock in this corporation; so that the diversity of ownership is legal rather than actual. We, therefore, prefer to put our decision of the matter, which is important as affecting other schools in the State, on the broad ground that the property is 'not ‘wholly devoted to’ nor ‘used exclusively for educational purposes’ within the meaning of the' Constitution and the statute.</p> <p>“The property, whether considered as held by the construction company or by Mr. Hobgood, is not ‘held for educational purposes.’ It is held by the construction company generally for its own benefit, with full power to use, sell, or consume the same, and its profits, in any manner and at any time it sees fit, and to put the same to any use or purpose it may desire for its own profit. We are of the opinion that this property is neither ‘wholly devoted to’ nor ‘used exclusively for educational purposes,’ within the meaning of the statute.”</p> <p>And again: “The contention of the company, claiming this exemption, seems to be rested upon the view that the words ‘used’ and ‘purposes’ are synonymous, and have; in .this statute and the Constitution practically the same meaning. These two words have, however, different meanings and different scope, according to our view, as used in the statute and Constitution. Williamette University v. Knight, 31 Oregon, 33; University v. People, 99 U. S., 309. Tbe word 'used/ in tbis connection, signifies mere employment, but 'purposes’ bas reference to and comprehends tbe ultimate end or result contemplated by sucb use or employment. Tbe exemption depends, not upon tbe use, but ratber upon tbe purpose of tbat usé. If one of tbe- purposes of tbe use or one of tbe ends in view is private' gain or profit, tben tbe purpose necessarily cannot be 'exclusively’ for education. We might credit tbe able educator, who conducts tbis school, with tbe high motives to which be is doubtless entitled, and concede tbat bis purpose in using tbis property solely in school work is as much tbe promotion of education as tbe earning of profit, or even more; yet, if bis purpose is in part tbe making of a profit, sucb purpose is not 'exclusively’ for education.”</p> <p>Tbe ruling of tbe Commission was affirmed in tbe Superior Court, and defendant excepted and appealed.</p>

<p>1. Evidence — Conflicting—Questions for Jury.</p> <p>Where there is conflicting and competent evidence upon whether a premium note was given for a policy of life insurance induced by false and fraudulent representations of the insurance agent made at the time the note was delivered, it presents an issue of fact, upon which the finding of the jury is conclusive.</p> <p>2. Insurance — Contracts—Fraud—Parol Evidence.</p> <p>Testimony of representations of an insurance agent falsely and fraudulently made, which would, if established, vitiate a policy of life insurance, is not governed by the rule of evidence that the written policy may not be varied by parol testimony.</p> <p>3. Insurance — Contracts—Principal and Agent — Fraud—Corroborative Evidence — Intent—Statements Made to Others.</p> <p>Where the validity of a life insurance policy is attacked for the false and fraudulent representations of the agent, as thus inducing the contract, it is competent to show, in corroboration of the plaintiff’s evidence, that the agent sold only one kind of policy, and by others that he made the same representations to them as an inducement to insure; and also as evidence of the intent of the agent in making the representations to the plaintiff.</p> <p>4. Insurance — Contracts — Corroborative Evidence — Declarations— Justice’s Court — Harmless Error.</p> <p>Where the declarations of an insurance agent are competent as corroborative of the testimony of the plaintiff as to fraud in the procurement of tlie policy of life 'insurance, and as to the intent of the agent in making them, it is admissible to show, in the same action on appeal to the Superior Court, that the agent had testified in the magistrate’s court to certain facts; and if error was committed in' admitting these declarations, it was cured by the agent’s testimony to tbe same effect in the Superior Court.'</p>

<p>1. Insurance, Life — Premium Notes — Maturity—Possession of Insurer — Nonpayment—Evidence.</p> <p>In an action to recover upon a life insurance policy, the defendant produced, in its possession, and put in evidence a promissory note, past maturity, signed by the deceased insured, which expressed upon its face that if it was not paid at maturity the policy was void: Held, competent, as tending to corroborate the evidence of the defendant that the note had not left its possession, and tending to show that payment had not been made by the deceased, and that the defendant had not waived the payment.</p> <p>2. Insurance, Life — Premium Notes — Renewals—Nonpayment—Evidence.</p> <p>A premium note given for the policy sued on in this case, in the possession of the defendant after maturity, and containing the provision that the policy would be void in the event the note was not paid, is Held to be a renewal of a note of like character, formerly given, and not a payment thereof, and, without more, no evidence that the premium had been paid so as to keep the policy in force.</p> <p>3. Same — Waiver—Nonsuit.</p> <p>In an action to recover upon a policy of life insurance, the plaintiff put the policy and proof of death in evidence with a letter from the defendant that it had received the remittance in settlement of the policy, and stating, “Your official receipt has been attached to your note.” The defendant put in evidence a letter it obtained from the plaintiff, upon due notice to produce, to the effect that the note had been returned unpaid from the bank, marked “No attention,” • and to keep the policy in force the plaintiff must send remittance by return mail with inclosed formal health certificate, etc.: Held, the evidence showed that the premium note had not been paid, and whatever may have been the effect, as a waiver, of presenting the note for payment, the .failure of the plaintiff .to pay negatived it after that date, and, viewing the evidence in the light most favorable to the plaintiff, a judgment of nonsuit was proper.</p> <p>4. Insurance, Life — Policy—Loan Value — Extended insurance.</p> <p>Upon the maturity of a policy of insurance with provision as to a loan value and the extension of the insurance after several yearly premiums have been paid, tbe administrator of the deceased may not claim tbe extension, when tbe loan value, which carries tbe insurance, has been made available by the deceased by borrowing tbe full amount.</p>