Volume 161 — North Carolina Reports

<p>1, Contracts — Vendor and Vendee — Fraud — Misrepresentations— Principal and Agent — Evidence—Questions for Jury.</p> <p>A representation made by the agent of a vendor in the sale of 150 sewing machines, that he would give the vendee certain exclusive territory; that a certain agency therein was discontinued; that no further sales would be made through it; that the existing agency had on hand only three machines, when in fact a much greater number were on hand there, and at the time of the transaction an order had been accepted by the agent from such other agency of 100 machines to be sold in the territory promised the vendee, is not of a promissory character and upon conflicting evidence, and further evidence tending to show that the vendee would not otherwise have made the purchase, a question of fraud is raised to be determined by the jury, as to whether the representation was a false statement of existing facts, calculated to deceive, intended to deceive, and which did deceive the vendee and formed a material inducement for the contract of purchase.</p> <p>2. Same — Caveat Emptor.</p> <p>When the agent "of a vendor of sewing machines knowingly and fraudulently induces a contract of purchase upon the representation that the vendee was to have certain exclusive territory, and that a certain agency in a near-by town had been discontinued, which covered a part of the territory contracted for, etc., the vendee had a right to rely upon the truth of the assertion made by the vendee’s agent, and it was not required of him that he verify the statement before entering into the contract, and the doctrine of oméat envpbor does not apply.</p> <p>3. Contracts — Vendor and Vendee — Fraud—Rescission—Notification —Rule of the Prudent Man.</p> <p>The defendant haying contracted with the plaintiff for the purchase of a large number of sewing machines, induced by the fraudulent misrepresentations of the latter’s agent as to exclusive territory, when the agent knew at the time it was largely occupied by another to whom he had sold like articles, it was for the jury to determine whether the defendant acted as an ordinarily prudent man would have done in not sooner notifying the plaintiff of his election to rescind the transaction, under evidence tending to show that tie so notified the plaintiff when he discovered the fraud while working the territory contracted for, about eighteen days after he could probably have sold any of the machines.</p> <p>4. Contracts, Written — Parol Evidence — Fraud—Stipulations—Principal and Agent — Statute of Frauds.</p> <p>The principle that a written contract may not be contradicted or varied by parol evidence has no application when the writing itself is attacked for fraud; for if the contract is vitiated by fraud, its provisions are carried with it, and a clause in a contract of sale that it may not be varied by the representations of the sales agent cannot have any effect if the contract itself falls. Instances in which promissory representations may be false and vitiate a written contract, as where they include misrepresentations of existing facts, cited and discussed by Walkee, J.</p> <p>5. Contracts — Fraud—Rescission—Vendor and Vendee — Instructions —Evidence—Questions for Jury.</p> <p>When, as in this case, a contract for the sale of goods has been induced by fraud, the vendee has a right to rescind the contract and return the goods, and under the evidence, and under proper instructions from the court, the question was for the jury.</p> <p>Bbown and Allen, JX, dissenting.</p>

<p>Appeal by defendants from Justice, J., at August Term, 1912, of UNION.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

Appeal by defendant from justice, J., at September Term, 1912, of MECKLENBURG. Controversy vsdthout action, beard by bis Honor, Judge Justice, at September Term, 1912, of the Superior Court of Meck-lenburg County. His Honor rendered judgment against defendant, and it appealed. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

Appeal by defendants from Webb, J., at May Term, 1912, of Beaueoet.

<p>1. Principal and Agent — Trusts and Trustees — Corporations—Officers — Lawful Acts — Presumptions.</p> <p>An ordinary contract made by tbe president of a corporation with respect to tbe corporate property is presumed to be lawful.</p> <p>2. Same — Contracts.</p> <p>Where one, as in tbis instance, tbe president of a corporation, contracts with reference to property wbicb be bolds as agent or in trust, and signs tbe contract individually, but is in fact therein acting as agent, be binds tbe principal to the transaction.</p> <p>3. Principal and Agent — One-man Corporation — Fraudulent Devices' —Evidence—Questions for Jury. •</p> <p>J. owned practically all of the stock in two corporations, tbe W. Co. and tbe J. Co., and with them, and by himself individually, was conducting a lumber business from tbe same office. 1-Ie contracted with tbe plaintiff to move bis sawmill on certain lands and cut tbe timber therefrom, and fell into arrears of payment, whereupon tbe plaintiff filed a lien against J. and the J. Co., but finding the timber rights were in fact owned by tbe W. Co., immediately filed a lien against them and brought this action. J. and the J. Co. went into bankruptcy and the W. Co. set up the defense that the W. Co. had sold the right to cut _ the timber to the J. Co. and that J. had made the contract in its behalf or in behalf of himself: Held, evidence was sufficient to be submitted to the jury as to whether J., in making the contract, was acting bona, fide in behalf of himself or the J. Co., or whether the separate corporations were used as a device to avoid responsibility on the part of the W. Co.</p>

Appeal by defendant from Adams, J., at Spring Term, 1912, of AVERY. Civil action. These issues were submitted: 1. Was tbe plaintiff’s intestate killed by tbe negligence of tbe defendant, as alleged in tbe complaint ? Answer: Yes. 2. Did tbe plaintiff’s intestate by bis own negligence contribute to tbe injury resulting in bis death? Answer: No. 3. Wbat damage, if any, is plaintiff entitled to recover? Answer: Tbirty-five hundred dollars ($3,500).

Appeal by plaintiff from Lyon, J., at August Term, 1912, of Caldwell. Tbis is an action against tbe First National Bank of Lenoir, to recover usury alleged to bave been paid, and to ascertain tbe amount due fronrtbe plaintiff to tbe defendant, or from tbe defendant to' tbe plaintiff. Tbe defendant denied that it had charged or received usury, and démanded judgment for the balance alleged to he due it.

<p>Evidence — Questions for Jury.</p> <p>Upon a rehearing of this case it is held that the rules of law heretofore laid down are correct; but upon reconsidering the facts, the majority of the Court hold the evidence sufficient to be submitted to the juiy.</p> <p>Brown and Allen, JJ., dissenting.</p>

Appeal by plaintiff from Justice, J., at February Term, 1912, of Euthereord. This is an action to recover judgment on a note for $426.58, the defendant pleading payment. The issues raised by the pleadings were referred, and the report of the referee is as follows: 1. That the defendant, on 1 April, 1910, executed and delivered to the plaintiff her promissory note in the sum of $426, bearing interest from date and due and payable nine months after date. 2.

Appeal by plaintiff from Goók&, J., at August Term, 1912, of BowaN. Civil action beard on case agreed. Tbe action was to determine tbe validity of a tax assessed by defendant against certain property beld by plaintiffs as trustees of tbe First Presbyterian Cburcb of Salisbury, N. 0.

<p>Appeal by plaintiffs from Long, J., at April Term, 1912, of BUNCOMBE.</p> <p>This action was brought by tbe plaintiffs, as citizens, taxpayers, and property-owners of tbe city of Asheville, to restrain tbe collection of certain assessments charged against their property for the construction of sewers, and was heard on complaint and answer.</p> <p>Tbe motion for a restraining order was denied, and the plaintiffs excepted and appealed. The complaint is as follows:</p> <p>1. That the plaintiffs are citizens and residents and the owners of real and personal property situated in the city of Asheville, North Carolina, and that the defendant, the City of Asheville, is a municipal corporation, organized under the laws of North Carolina.</p> <p>2. That prior to the year 1901, the said city of Asheville, in order to enable it to construct in said city a system of sewerage, under and by virtue of the authority of the General Assembly of North Carolina, issued and sold its coupon bonds amounting to the sum of about $300,000, and with the funds thus raised laid in the city of Asheville a system of sewers, as hereinafter alleged. That said coupon bonds of the city of Asheville, or renewals thereof, are still outstanding and unpaid and bear interest payable semiannually, and the property in the city of Asheville is annually taxed to pay the interest on said bonds and is liable to be taxed for the purpose of raising funds to pay the principal of said bonds as they mature.</p> <p>3. That under and by virtue of the charter of the city of Asheville as it existed prior to the year 1901, and by means of the funds and money raised by the sale of said coupon bonds, as hereinbefore mentioned, the city of Asheville laid on all of the principal streets in said city and in front of all of the most valuable property in said city, including the entire business section of said city and all of the best and most valuable residence portions of said city, a system of sewers, all of which were laid at the public expense and out of the funds derived from the sale of said bonds as aforesaid. That from said bonds, as the plaintiffs are advised and believe, sewers were laid in the city of Asheville on Pack Square, North Main and South Main streets, College Street, Woodfin Street, Spruce Street, Yance Street, Oak Street, Merrimon Avenue, Orange Street, Central Avenue, Clayton Street, Charlotte Street, Pine Street, Chestnut Street, East Street, Center Street, Hillside Street, Liberty Street, Border Street, Water Street, Penland Street, Hiawassee Street, Haywood Street, Flint Street, Cherry Street, Starnes Avenue, Cumberland Avenue, Bearden Avenue, West Chestnut Street, Cullowbee Street, Soco Street, Montford Avenue, Wa-tauga Street, West Haywood Street, Depot Street, Ann Street, French Broad Avenue, Philip Street, Grove Street, Ashland Avenue, Church Street, Lexington Avenue, Southside Avenue, Market Street, Davidson Street, Yalley Street, Bartlett Street, and various other streets in said city.' That the above mentioned streets and the sewers laid thereon are the streets and sewers in front of most of the property in the city of Asheville; and especially in front of that property which is more valuable in proportion to the size of lots and more valuable in the improvements on it than any other portion in the city of Asheville.</p> <p>4. That pretending to act under and by virtue of chapter 100 of the Private Laws of 1901, section 71, and the Laws of North Carolina amendatory thereof, since the year 1901, the said city of Asheville, through its mayor and board of aider-men, proceeded to lay sewers on certain of the streets in the city of Asheville and partially on those streets on which the property of the plaintiffs aboye mentioned abuts, and have, by virtue of said statute and of the proceedings conducted under the same, attempted to levy assessments upon the property of these plaintiffs for the cost and expense of laying ^said sewers on said streets, and now claims a lien on the property of the said plaintiffs and each of them, and is threatening and endeavoring to enforce the same by virtue of said alleged claim of lien, and are threatening to advertise the same for sale by virtue of said lien, and have thus encumbered and cast a cloud upon the title of the plaintiffs to their said property, and have injured and damaged the plaintiffs irreparably. That the said city of Asheville claims assessments against the property of the plaintiffs above mentioned, for laying sewers on streets in'said city and in front of their property, as follows:</p> <p>W. T. Justice, McDowell Street.$ 96.28</p> <p>F. P. Ingle, Black Street. 56.06</p> <p>Mrs. Z. W. Israel, 103 Blanton Street. .'.. 30.67</p> <p>R. T. Sehank, McDowell Street.'.. 68.40</p> <p>R. T. Sehank, Choctaw Avenue. 176.00</p> <p>L. L. Brookshire, Black and Brookshire streets. 102.96 H. M. Sprose, Black Street. 18.00</p> <p>H. M. Sprose, Ealpb Street. 27.30</p> <p>IT. M. Sprose, Ashland Avenue. 62.17</p> <p>J. 0. Whitted, Black Street. 100.00</p> <p>James Stanback. 43.59</p> <p>John Lochran. 45.29</p> <p>J. M. Spurlin, Blanton and Phifer. 99.55</p> <p>C. M. Williams, Blanton. 66.12</p> <p>C. P. Miller, Blanton. 53.50</p> <p>O. E. Perry, Phifer. 21.00</p> <p>P. H. Thrash, Blanton Street. 137.50</p> <p>W. 0. Bryson, Blanton Street. 34.00</p> <p>J. S. Foster, Phifer. 26.00</p> <p>A. J. Gilliam .. 32.32</p> <p>E. N. Brookshire, Brookshire Street. 52.00</p> <p>H. H. Justice, Hillside Street. 19.34</p> <p>W. W. Goldsmith.</p> <p>5. That under and by virtue of the charter of the city of Asheville all persons owning.real estate in said city are required, at the discretion of the mayor and board of aldermen of said city, and at their own expense, to connect their said property, whether improved or unimproved, with the sewers of said city, and by virtue of said authority the said city of Asheville has compelled the plaintiffs above named to connect their said property with said sewers.</p> <p>6. That the property of the plaintiffs above mentioned, and all other property of the plaintiffs situated in the city of Ashe-ville, is annually taxed to pay the interest of said bonds which were issued to raise money to lay the sewers hereinbefore referred to and mentioned in paragraph 3 of this complaint; and in addition to that, the property of the plaintiffs has been subjected to a claim of lien in favor of said city on account of the sewers laid in the streets on which the plaintiffs’ said properties abut, but that none of the property situated on the streets mentioned in paragraph 3 of this complaint has been assessed for sewers laid on said streets, but the sewers laid in front of said property and used by said property were paid out.of the general funds of said city and by taxation on the property of these plaintiffs, as well as on the property of all other persons in the city of Asheville. That the plaintiffs are advised and believe that said alleged claims of liens for sewerage assessments on their property and on all other property situated in the city of Asheville on which a lien is claimed for sewerage under the same conditions are absolutely null and void, contrary to the Constitution of the State of North Carolina, and contrary to the Constitution of the United States, contrary to common reason and common justice, unequal in the burdens which it authorizes the mayor and the board of aldermen to impose upon property in said city, unreasonable, unjust, and oppressive. That the plaintiffs hereto are in most instances humble people, and their property is of very little value as compared with the most valuable property in said city; and when considered per front foot on an average would not be worth one-tenth the amount of the average value per front foot of the property mentioned in paragraph 3 of this complaint, as these plaintiffs verily believe. And the plaintiffs further allege that said assessments for sewers in front of their said property are for amounts much larger than any actual benefit conferred upon the property by the construction of such sewers, and that said assessments were irregularly and unlawfully made and levied, and are, therefore, null and void.</p> <p>T. And the plaintiffs further allege that, as they are advised and believe, the said assessments and the statute under which they are levied are illegal, unconstitutional, and void; that the said statute is .discriminatory and if enforced against these plaintiffs would deprive them of all their property without due process of law and deprive them of the equal protection of the laws; that said 'statute, as they are advised and believe, is contrary to the Constitution of the State of North Carolina, and is therefore void; that said alleged statutes constituting a part of the charter of the city of Asheville, which are attempted to be enforced in this cause, and the assessments levied thereunder, are contrary to the Constitution of the United States, and especially the fourteenth amendment of said Constitution, and if enforced would deprive these plaintiffs of their property without due process of law and deprive them of the equal protection of tbe law, and tbe plaintiffs hereby especially plead tbe said Constitution of tbe United States and tbe amendments thereto and rely upon tbe same for protection in this cause.</p> <p>Wherefore, tbe plaintiffs pray:</p> <p>1. That an injunction be issued enjoining and restraining tbe city of Asheville from enforcing said assessments or collecting tbe money claimed by it on account thereof.</p> <p>2. That said assessments be set aside and declared null and void.</p> <p>3. That tbe plaintiffs have all such other and further relief as they may be entitled to and to tbe court may seem meet.</p> <p>The defendant denies that it has exceeded its powers, -and alleges, in its answer, that said assessments were regularly and legally made under tbe provisions of its charter.</p> <p>A map of tbe sewerage system in Asheville is made a part of tbe record, which shows that tbe main sewer lines, into which other sewers empty, were constructed with the money derived from the bond issue referred to in the complaint.</p> <p>The provisions of the charter of the defendant, material to this inquiry, are:</p> <p>“Sec. 179. Said board of aldermen shall, from time to time, lay, build, and construct in said city such system of waterworks, water pipes, sewerage and sewer pipes and extension of the same as to it may seem advisable, or cause the same to be so laid, built, and constructed, and shall keep the same in proper condition and repair, with proper connections, and make all necessary provisions for so doing, and shall control and regulate such system and every part thereof, and may require the owner or owners of any improved lots in said city on any public street or alley where such water and sewer pipes have been laid, or are conveniently accessible, or on any line of pipes, to connect such lot with such sewer and. water pipes in the manner and at the places designated by said board of aldermen, upon like notice, terms and conditions as are hereinbefore provided for paving sidewalks ;• and upon failure of the owner or owners to so connect the same within the time in such notice required, said board of aldermen may enter upon such lot and make such connections and charge the costs thereof against said lot in the same manner as hereinbefore provided in the case of sidewalks, and such costs so charged shall be collected and shall constitute a lien upon such lot in the same manner and to be enforced in the same manner and with like powers and privileges as is hereinbefore provided in regard to sidewalks. And in all cases where a sewer shall be laid by or under the authority of said board of aldermen in any street in said city, the costs and ex-Xiense of laying and constructing same shall be assessed against the property abutting on each side of said streets, as well as against all property within the radius of benefit arising from such improvements, though not actually abutting thereon; the property liable to assessment hereunder and the apportionment of the costs and expense of said improvement against the same in ease of disagreements between the owner or owners thereof and said board of aldermen as to the pro rata j>art of said costs and expense which should be assessed against any piece or parcel of 'property benefited as aforesaid, to be determined by a jury of seven freeholders of said city unconnected by consanguinity or affinity with any of the persons supposed to be affected by said improvements, and summoned to pass upon said questions above mentioned, by any policeman of said city upon writ to him directed by the mayor under the seal of said city, commanding that such be done, and succinctly describing the duties to be performed by such jury. Each juror shall be sworn by the mayor or any other person competent to administer oaths in this State, to faithfully and impartially execute the duties of his office before entering upon the performance thereof. Each member of said jury summoned as aforesaid shall repair to the mayor’s office at a date and hour to be named in the mayor’s said writ, not more than five days after the date of the same, for the purpose of being sworn as hereinbefore required. Upon the assembling of said jury- at the mayor’s office, any person summoned as aforesaid, upon excuse offered satisfactory to said mayor, may by him be excused from further service; and it shall be the duty of the mayor to require any policeman of the city to forthwith summon another person having the qualifications hereinbefore described to serve upon said jury in the place and stead of tbe juror so excused by tbe mayor. Immediately after being sworn as aforesaid, said jury as finally constituted shall proceed without unnecessary delay to view tbe street and section in which said improvement has been or is proposed to be made, and all the property deemed by them to be, beneficially affected thereby as hereinbefore described, and shall within a reasonable time thereafter, not exceeding five days, and after due consideration thereof, make up their report, a majority concurring therein, in which shall be generally described each piece of property deemed by them to be beneficially affected by said improvement, together with the amount of the special benefit thereto arising from such improvement, and giving also the name or names of the supposed owner or owners thereof. In case of inability of said jury, with a majority concurring, to agree upon the special benefit to any piece or parcel of land as aforesaid arising from such improvements, after being together and considering same for twenty-four hours, they may be excused from further consideration thereof by said mayor, and shall file their report as hereinafter required concerning the pieces or parcels of land upon which they shall have been able to agree; and the mayor may, by writ, as herein-before described, immediately require another jury of seven persons, possessing the same qualifications as said first mentioned jury, to be summoned and qualified as aforesaid, who shall forthwith proceed, in the manner and within the time hereinbefore mentioned, to pass upon and determine the questions left undetermined by said first mentioned jury, and to file their report in the manner and within the time herein required in cases where there is no disagreement upon the part of the jury. After making up their report as herein required, said jury shall forthwith file the same with the city clerk of Ashe-ville, who shall submit it to the board of aldermen at their next regular meeting after the day on which the same is filed as aforesaid, for their action. Said board of aldermen shall, at said meeting or at any regular meeting thereafter, not exceeding twenty days from the date of the submission of the same, require the city clerk to publish a notice of not less than twenty days in some newspaper published in said city and of general circulation therein, to the effect that said jury has made its report and prorated and assessed the costs and expense of said improvement (which shall be described generally) against the property specially benefited thereby, naming, where possible, the owners thereof, or the party in whose name said property may be listed for taxation, or in case the name of the owner cannot be ascertained, and said property is not listed for taxation, then the name of the party occupying the same, if any, and admonishing all persons interested therein, particularly those named in said notice, that said report has been filed with the city clerk, and they and each of them are required to be and appear at a regular meeting of said board of aldermen, to be specified in said notice, and to be held not less than ten days after the date of the expiration of said notice, and show cause, if any should exist, why said report should not be approved and confirmed by said board of aldermen, and at such pieeting said board of aldermen shall take up and consider the report of said jury, and hear any competent evidence from any person interested in the property affected thereby touching any matters covered by said report, and to that end said board of aldermen are hereby constituted a court with power to send for persons and papers, to provide for the examination of witnesses, and to punish witnesses or others, in proper cases, for contempt of court. After hearing evidence as aforesaid, and duly considering said report, or, in case no objection is made, after duly considering said report, said board of aldermen may approve, correct, amend, modify, or reject the same, or any item therein, as to them may seem just and proper, and said'report-or said corrected, amended,' or modified report, as the case may be, shall then be entered in full in a book to be provided for that purpose by the board of aldermen, and to be entitled ‘Record of Sewer Liens,’ which book shall be properly and accurately indexed, as near as may be, in the name of the owner of the property affected by said improvement, so as to enable the public, to whom said book, with its index, shall always be open and accessible during business hours, to readily ascertain what property may be affected by said assessment and the amount of said assessment against each piece or parcel of property. Any aggrieved party may appeal from tbe final determination of said boai'd of aldermen with respect to said repor-t, or any item therein, as aforesaid, within ten days after the date of the registration thereof, as above provided, to the next term of the Superior Court of Buncombe County, beginning more than ten days after the date of such appeal, by serving notice of appeal upon the mayor of said city, and specifying therein the particulars in which he considers himself aggrieved- by such determination of such board of aldermen. On any such appeal the appellate court shall have power to increase, affirm, or diminish the amount of the item appealed from, but not to adjudicate the necessity of the improvement, and such appeal shall in no wise hinder, obstruct, or delay said improvement. The amount of any special benefit or enhanced value so assessed against any premises by the board of aldermen of said city, or an appeal adjudged against the same, shall upon such final determination of said board of aldermen, with respect thereto, in case no appeal is taken therefrom, or upon final judgment of the court in case of any such appeal, be and-become a lien in favor of said city, on said property on which it has been so assessed or adjudged, as of the time of such final determination on the part of the board of aldermen, and shall be paid to the city in three equal annual installments, one, two, and three years respectively, together with interest on each installment at the rate of 6 per cent per annum from said date. If any installment shall remain unpaid for thirty days after its maturity, all installments then unpaid shall become due, and the property and premises so assessed or charged shall be sold for the payment of the same, and of the expenses of such sale and costs, by the tax collector of said city, under the same rules, regulations, restrictions, rights of redemption and other provisions as are prescribed in this charter for the sale of real estate for unpaid taxes. The installments of the assessments herein mentioned, or any part of same, may be assigned and transferred by said city either absolutely or conditionally, as to the board of aldermen may seem best.”</p> <p>The plaintiffs resist the collection of the assessments because:</p> <p>“1. It (tbe charter) requires all of tbe cost and expense of tbe sewers to be assessed against private property.</p> <p>“2. Because, in considering tbe benefits to be derived by tbe property adjacent to tbe sewers, tbe statute does not provide that tbe jury shall take into consideration tbe fact tbat tbe sewers in all other parts of tbe city were laid out of tbe general funds, and tbat tbe particular property in question is subject t'o taxation to pay for said sewers laid out of tbe general funds.</p> <p>“3. This statute is subject to tbe same objection and to tbe same defects which this Court found to exist in section 65 of chapter 100, Private Laws 1909, as pointed out in tbe case of Ashevillle v. Trust Co., 143 N. C., 360, which are tbat no taxing district is established within which tbe improvement is to be made and special benefits assessed.”</p>

<p>1. Intoxicating Liquors — Contracts—Illegal Consideration — Enforcement.</p> <p>Tbe courts will not enforce a contract made in violation of its own laws, and checks given in payment for intoxicating liquors purchased in North Carolina in violation of our prohibition laws are not collectible in our courts.</p> <p>2. Same — Conjectural Evidence — Liquor Dealers — Checks—Burden of Proof.</p> <p>When the payment of checks are resisted on the ground that they were given for the purchase of intoxicating liquors in North Carolina prohibited by our prohibition laws, the burden is on the defendants to show that they were so given, and mere conjectural circumstances or probabilities are not evidence sufficient ; and no presumption of illegality arises from the fact that the plaintiffs were liquor dealers, or that the defendants kept a restaurant and dealt in “soft drinks,” etc., and not in intoxicants.</p>

<p>Appeal by defendant from Foushee, J., at March Term, 1912, of ÜARTERET.</p> <p>Civil action. At the conclusion of the evidence the court sustained a motion to nonsuit the plaintiff as to the defendant, the railroad company. Plaintiff excepted. The court overruled the motion to nonsuit made by defendant town of Morehead City, and submitted these issues to the jury. The defendant More-head City excepted.</p> <p>1. Was the release set out in this answer of the defendant town secured by undue influence and fraud, as alleged? Answer: Yes.</p> <p>2. Was tbe plaintiff injured by tbe negligence of tbe defendant town, as alleged? Answer: Yes.</p> <p>3. Was plaintiff guilty of contributory negligence, as alleged? Answer: No. ' ,</p> <p>4. Wbat damages, if any, bas tbe plaintiff sustained by reason of tbe alleged negligence ? Answer: $325.</p> <p>From tbe judgment rendered, both tbe plaintiff and tbe defendant Morebead City appealed.</p>

Appeal by plaintiff from Peebles, J., at July Term, 1912, of RICHMOND. This is an action to recover damages for tbe negligent killing of the plaintiff’s intestate. The jury returned the following verdict: 1. Was the plaintiff’s intestate, Arthur Speight, injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: Tes. ^ 2.

Appeal by defendant from Lyon, J., at March Term, 1912, of MECKLENBURG. This is an action to recover upon- divers policies of insurance, eleven in number, alleged to have been issued by the defendants to the plaintiff on its property, which was destroyed by fire on 25 December, 1910.

, beard at chambers, 19 September, 1912, from Hyde. Civil action to enjoin the issuance of certain drainage bonds by the Mattamuskeet Drainage District, heard on return to preliminary restraining order before his Honor, Henry P. Lane; judge holding the courts of the First Judicial District, at chambers in Elizabeth City on -19 September, 1912.

Appeal by defendant from Long,, J., at April Term, 1912, of BUNCOMBE. Civil action. Tbe following issue was submitted to tbe jury: Is tbe Order of United Commercial Travelers of America, tbe defendant above named, indebted to W. C. Coile, tbe plaintiff, as alleged in tbe complaint; and if so, in wbat amount? Amswer: Yes; $275; interest from 23 March, 1910. From tbe judgment rendered, tbe defendant appealed.

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

Appeal by defendant from Foushee, J., at Spring Term, 1912, of Rutherford. / Proceeding to establish and declare the proper probate of a deed, including the privy examination of a feme covert, beard on appeal from the clerk of the Superior Court before bis Honor, II. A. Foushee, judge, at Spring Term of tbe Superior Court of Rutherford County, 1912. The facts are sufficiently stated in the opinion of the Court by Mr. Justice Hoke.

<p>1. Intoxicating Liquors — “Civil Damage Laws” — Sale to Minors — Interpretation of Statutes.</p> <p>Revisal, sec. 3525, giving a right of action for exemplary damages to the father, etc., against one who by sale or gift violates the provisions of section 3524, should be construed in connection with the latter section, thus making section 2535 apply to any person who keeps on hand intoxicating drinks or liquors for the purpose of sale or profit, and providing that such persons “shall be considered dealers within the meaning of this section,” 3524.</p> <p>2. Same — Penal Statutes — Strict Construction — Common Law.</p> <p>Revisal, secs. 3524 and 3525, being among that class of statutes known as “civil damage laws,” are highly penal, .and give a right of action unknown to the common law, and should be strictly construed; and no one may be held liable under the statutes unless included in their terms.</p> <p>3. Intoxicating Liquors — “Civil Damage Laws” — Sale to Minors— Dealers — Interpretation of Statutes.</p> <p>When a shipment of intoxicating liquor is made to a minor under circumstances that would otherwise give a right of action to the parent, etc., under the provisions of section 3525 of the Revisal construed in connection with section 3524 thereof, and a bill of lading attached to the draft for the liquor is sent through the bank, which is paid by the minor to the cashier of the bank, who gives him the bill of lading with which he gets the liquor, the cashier, in his capacity as such, is not such a person as the statute contemplates, and an action against him, under its provisions, will not lie.</p> <p>Clark, C. J., concurring.</p>

<p>Appeal by plaintiffs from order of Ferguson, J., at chambers, of Wayne.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.</p>

Appeal by plaintiffs from Whedbee, J., at July Special Term, 1912, of Durham. Civil action.

Appeal by plaintiff from Allen, J., at July Term, 1912, of Ashe. Tbis is an action to recover damages for causing tbe death of tbe plaintiff’s intestate by tbe negligence of tbe defendant, as alleged in tbe complaint. Tbe defendant is a corporation owning a lumber plant and operating logging trains, and was running one of its trains at tbe time hereinafter mentioned.

Appeal by plaintiffs and defendants from Justice, J., at July Special Term, 1912, of HendeRson. The above entitled three civil actions were consolidated by consent, and tried together at July Special Term of the Superior Court of Henderson County, Justice, J., presiding.

<p>1. Corporations, Foreign — Process—Service of Summons — Director —Interpretation of Statutes.</p> <p>Service of summons, in an action brought by a citizen and resident of tbis State, against a foreign corporation, which has no property and does not conduct its business here, is valid if made on its director, who is a citizen and resident of this State, under the provisions of Revisal, sec. 440 (1), the restrictions as to doing business and owning property here, etc., not applying to officers of this character.</p> <p>2. Appeal and Error — Indemnity—Wrong Party — Action Dismissed —Reading Complaint.</p> <p>In this action against a foreign corporation and its indemnity company wherein a copy of the policy was not attached to the complaint and the reading of the latter did not disclose whether the indemnity company was a' necessary party, and this could not be ascertained until the evidence was in: Held,, the reading of the complaint against the indemnity company in the presence of the jury, and the judge afterwards dismissing the action as to it on defendant’s motion, is not reversible error.</p> <p>Walker and Brown, JJ., dissenting.</p>

Appeal by defendants from Foushee, J., at April Term, 1912, of Polk. This is an action for divorce a mema et thoro, and was before the court below at the last term, on a motion for alimony pen-dente lite, which was heard upon the complaint and answer, read as affidavits, and also upon oral testimony taken before the court. The judge announced that in considering the matter he would accept the defendant’s testimony as true, and we will so treat it in this Court.

Appeal by defendant from Lyon, J., at August Term, 1912, of WlLKES. Civil action. Tbe following issues were submitted to tbe jury: 1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2. Did tbe plaintiff, by bis own negligence, contribute to bis own injury? Answer: No. 3. Wbat damage is tbe plaintiff entitled to recover? Answer: $800. From tbe judgment rendered, tbe defendant appeals.

<p>Appeal by defendant from C.oolce, J., at June Term, 1912, of Guilford.</p> <p>Civil action. Tbe action was instituted by plaintiff, admin-istratrix of James Ward, deceased, to recover damages for tbe alleged negligent killing of ber intestate in tbe city of TIigb Point on 22 October, 1909, while loading a printing outfit into one of tbe cars on tbe team track of tbe defendant company. On tbe ordinary issues in sucb action, as to negligence, contributory negligence, and damages, there was verdict for plaintiff. Judgment on tbe verdict, and defendant excepted and appealed. '</p>

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

Appeal by defendant from Long, J., at February Term, 1912, OÍ MADISON. Tbis is a proceeding brought by tbe plaintiff against tbe defendants for tbe condemnation of certain lands belonging to tbe defendants for a right of way for railroad purposes. Tbe proceeding was commenced by a summons issued by tbe Clerk of tbe Superior Court of Madison County on 28 December, 1910.

Appeal by defendant from Long, J., at August Term, 1912, of OlIEROKEE. Civil action, under section 1748 of the Revisal, to have canceled and declared void certain grants issued by the State of North Carolina to the defendants. There are involved in the suit between twenty-five and thirty grants, and the lands covered by all except three of the grants lie in Graham County.

<p>Appeal by defendant from Lome, J., at January Term, 1912, of Haywood.</p> <p>Civil action. Tbe action involved tbe title to land, and tbe usual issues were submitted and found for plaintiff and tbe damage assessed at $15. From tbe judgment rendered, defendant appealed.</p>

<p>1. Instructions — Verdict, Directing — Evidence, How Considered.</p> <p>When the trial judge directs a verdict against the plaintiff he is entitled to have his evidence, without regard to the defendant’s contradictory evidence, considered in the light most favorable to him, as in judgments of nonsuit, for any competent evidence in his favor should be passed on by the jury.</p> <p>2. S'lander — Infamous Offense — Actionable Per Se — Interpretation of Statutes.</p> <p>In an action to recover damages for slander, the defendant’s accusation that plaintiff had embezzled lumber or money is equivalent to charging him with the commission of a felony, or infamous offense, punishable by imprisonment in the penitentiary, as in cases of larceny (Revisal, sec. 3406), and is actionable per se.</p> <p>3. Slander — Actionable Per Se — Malice—Presumptions.</p> <p>Malice, an essential element of slander, is generally presumed where the words spoken are actionable per se, until the truth thereof is proved, except where the occasion is privileged or prima facie excuses the publication.</p> <p>4. Slander — Malice—Presumptions—Evidence—Rebuttal.</p> <p>The presumption of malice, in an action to recover damages for slander, when the words spoken are actionable per se, may be rebutted.</p> <p>5. Slander — Actionable Per S'e — Evidence—Questions for Jury.</p> <p>Where, in an action for slander, the words spoken are actionable per se, and the evidence is conflicting, the question should be submitted to the jury, with the burden of proof on defendant to show whether the defendant uttered the slanderous words maliciously, or whether they were true, and, if so, whether he was justified ox excused in doing sol</p> <p>6. Usury — Release—New Debt — Interest—Right of Borrower.</p> <p>In an action to recover upon an usurious contract under our statute, usury in a certain sum was alleged, and upon reference it was ascertained that usury in a certain lesser sum had been received, and that the parties had come to an agreement whereby the lender was released' from liability on account of the usurious transaction, being denominated in the release as “all amounts paid in excess of the legal rate of interest”: Held, the borrower had the right to release the lender from liability on the usurious contract, and his release freed- the original contract from the taint of usury, thereby making a new principal of indebtedness, bearing the legal rate of interest.</p> <p>7. Appeal and Error — Lower Court — Judgment—Correction—Execu- • tion — Joined Causes — New Trial — Procedure.</p> <p>The lower court, upon the report of the referee, having erroneously credited the defendant a certain sum on an usurious'contract, in this case, and the judgment in all other respects being approved on appeal, it is Held, that the judgment be accordingly . amended, and execution issue thereon; and this action having been consolidated with an action of slander, and error therein found, a new trial is awarded therein.</p>

<p>Appeal and Error — Processioning Lands — Fragmentary Appeal — Order Remanding Cause to Clerk — Practice.</p> <p>An appeal from tlie order of the Superior Court judge reversing the judgment of the clerk of the court and remanding the cause to hiim to the end! that the proper order for a survey be made in proceedings to procession lands, under Revisal, sec. 326, is premature, and a motion to dismiss should be allowed; exceptions should have been taken to the order and the final result appealed from.</p>

Appeal by plaintiff from Whedbee, J., at August Term, 1912, of GUILFORD. Civil action. From a judgment of nonsuit tbe plaintiff appeals. Tbe facts are sufficiently stated in tbe per curiam opinion.

<p>Partition — Parties—Appeal and Error — Motions—Estoppel.</p> <p>A party to proceedings to partition lands, who was present at the sale and received his share of the purchase money, may not, after confirmation of the matters adjudicated and affirmed on appeal, by motion in the original cause, have the sale set aside as to him.</p>

<p>Petition- to rehear this cause by plaintiff, reported in 157 N. C., 179.</p>

<p>Appeal from W. J. Adams, J., at May Term, 1912, of Catawba.</p>

<p>Appeal by defendant from Lyon, J., at July Term, 1912, of Catawba.</p>

<p>Appeal from Webb, J., at Special Term, 1912, of Graham.</p>

<p>1. Appeal and Error — Parol Agreement.</p> <p>A parol agreement made between the parties to an appeal will not be considered by the Supreme Court if denied.</p> <p>2. Appeal and Error — Written Agreement — Time to Serve Case— Computation — Interpretation of Statute.</p> <p>When there is a' written agreement made between the parties to an action extending the time allowed by the statute as to the service of the case, counter-case, or exceptions, the service by either of the parties after time specified therefor in the agreement is void; and in computing the time, the first day allowed in the time extended is counted as well as the last, allowing the full number of days agreed upon.</p>

Appeal by defendant from Webb, J., at Spring Term, 1912, of TYRRELL. Tbis is a motion by tbe plaintiff, after notice, for a decree commanding tbe defendant to execute a deed to him witb general warranty, for tbe land described in tbe complaint, and for a writ of possession.

Appeal by defendant from Lane, J., at Spring Term, 1912, of Macow. Civil action. These issues were submitted: 1. Is the plaintiff the owner of and entitled to the possession of the land described in the amended complaint of the plaintiff? Answer: Yes. 2. Is the defendant in the. wrongful possession of any part thereof, and if so, what part ?

Appeal by defendant from Cooke, J., at April Term, 1912, of Nash. Tbe defendant was convicted in the Superior Court of Nash County, upon appeal from a justice of the peace, upon a warrant charging that he had carried on the business of hauling logs, etc., without obtaining a license therefor, in violation of the provisions of chapter 451, Laws 1911.

Appeal by plaintiff from Ferguson, Jat July Term, 1912, of Wake. Criminal action.

<p>1. Murder — Instructions—“Deliberation or Premeditation” — Charge Construed as a Whole — Appeal and Error.</p> <p>Upon, a trial for murder, a charge of the court, under pertinent evidence, to find the -prisoner guilty of murder in the first degree, if the jury were satisfied beyond» a reasonable doubt that the prisoner fired the fatal shot with “premeditation or deliberation” is not held for error because of the use of the disjunctive “or” for the conjunctive “and,” it appearing that the use of that word was an inadvertence; and it further appearing from the charge, construed as a whole, that the court charged that the shooting should have been done wifih “deliberation and premeditation” in order to convict him.</p> <p>2. Same — Interpretation of Statutes — Harmless Error.</p> <p>Under our statute, Revisal, sec. 3631, a murder committed in the perpetration of a robbery, which the evidence in this case discloses, is murder in tbe first degree, and an instruction in such instances which, uses the disjunctive “or” for the conjunct- ■ ive “and,” as, if the jury should be satisfied beyond a reasonable doubt that the prisoner killed the deceased with “premeditation or deliberation,” to finid him guilty of murder in the first degree, is immaterial, and is not held for reversible error.</p>

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

Appeal by defendant from Whedbee, J., at tbe September Term, 1912, of Guileord. Criminal action for willful violation of city ordinance, beard on appeal from municipal court city of Greensboro. Tbe jury rendered a special verdict, and, upon tbe facts therein established, the court being of opinion that defendant was guilty, adjudged defendant guilty, imposed a fine of $100, and defendant excepted and appealed.

Appeal by defendant from 0. II. Allen, J., at July Term, 1912, of Fobsyth. • The defendant was charged in the indictment with the violation of section 3349 of the Revisal, which denounces the crime against nature, and the jury returned as their verdict: “Guilty of an attempt to commit the crime charged in the bill of indictment.” Upon this verdict, the defendant was sentenced to four months in jail and assigned to work on the public roads.

Appeal by plaintiff from Allen, J., at January Term, 1912, of New HaNovee. Civil action beard on case agreed. Held: etc. Second share. To Mary Bridgers. Same as No. 1. Third share. To Annie (daughter-in-law). Same as No. 1, except income given to her until marriage, and in event of marriage, income during her life to be divided between her and her children and grandchildren of Robert, per stirpes. Fourth share. To Bettie (daughter-in-law).

Appeal by defendant from Carter, J., at September Term, 1912, of Pender. Indictment for murder. The prisoner was convicted of murder in the first degree, and from sentence of death appeals.

<p>Landlord and Tenant — Removing Crop — Statutory Notice — Burden of Proof — Interpretation of Statutes.</p> <p>In order to convict tbe defendant of tbe offense of removing a crop without tbe consent of tbe landlord, tbe burden is on the State to show that the defendant bad not given bis landlord the statutory five days previous notice before tbe crop bad been removed.</p>

Appeal by plaintiff from Justice, J., at January Term, 1912, of Rutherford. Tbis is an appeal from tie Corporation Commission from tie findings and judgment of tie Commission upon tie petition of tie citizens of Rutherfordton against tie above defendants, requiring them to establish a union depot. Tie following issues were submitted to tie jury: 1.

Appeal by defendant from Peebles, at September Term, 1912, of RICHMOND. This is a proceeding against defendant for bastardy. The prosecutrix, Fannie Terry, made an affidavit before the justice of the peace, charging the defendant with the paternity of her child. There was a jury trial before the justice on 12 July, 1912, and a verdict of acquittal rendered.

<p>Appeal by. defendant from Lane, Jat Spring Term, 1912, Of CHEROKEE.</p> <p>The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.</p>

<p>Appeal by defendant from Allen, J., at July Term, 1912, of Forsyth.</p> <p>Tbe facts are sufficiently stated in the opinion of the Court by Mr. Justice WaVcer.</p>

<p>1. Appeal and Error — Objections and Exceptions — Evidence—Record — 'Harmless Error.</p> <p>When the evidence proposed to be elicited from a witness does not appear in the case, an objection thereto will not be considered, as it must be shown to have been prejudicial.</p> <p>2. Homicide — Motive—Evidence—Res Gestae.</p> <p>On a trial for murder, a conversation by a witness with the prisoner, in which the latter said, with reference to the deceased, that “the tale about his poisoning dogs all over the county was the cause of all the trouble,” was competent as evidence o.f a motive for the homicide; and the circumstances under which the witness and prisoner met and what was done at the time of the conversation, being pars reí gestee, are competent as throwing light on what was said.</p> <p>3. Appeal and Error — Character Witnesses — Questions and Answers —Harmless Error.</p> <p>An answer favorable to the prisoner, on trial for murder, to an objectionable question asked a witness, as to, whether he thought a man who would do certain specified things is a man of good character, is harmless error..</p> <p>4. Murder — Instructions—Mutual Combat — Evidence — Record— Harmless Error.</p> <p>On a trial for murder, where there was no evidence in the case that the prisoner and deceased were engaged in mutual combat on equal terms, but it appeared that the prisoner was all of the time the aggressor, and the defendant was convicted of murder in the second degree: Held, it is not reversible error for the judge to have charged the jury upon the phase-of mutual combat; as, under the circumstances of this case, an instruction would have been proper that there was no evidence of manslaughter, the killing with a deadly weapon having been shown and not denied, and the burden of proving facts in mitigation and excuse being on the defendant..</p>

<p>Í. Motions — Nonsuit—Evidence, How Considered.</p> <p>Upon a motion to nonsuit, tbe evidence must be viewed in the light most favorable for the plaintiff, approving Brittain v. Westhall, 135 N. C., 492.</p> <p>2. Same — Ejectment—Defendant’s Title.</p> <p>Where plaintiff and defendant both claim title to lands, by deeds from a common source, and it appears from- the defendant’s deeds in evidence that questions were raised for the jury as to this title to the loans in quo, it is error for the court to grant a motion of nonsuit upon the evidence.</p> <p>3. Same — Questions for Jury.</p> <p>Both parties to this action to recover lands claiming under a common source of title, it is Held that the variance in the deeds in defendant’s chain of title as to description, number of acres, etc., raised a question fpr the determination of the jury as to his title.</p> <p>4. Deeds and Conveyances — Ejectment — Descriptions — Definite Tract — “Formerly Owned” — Words and Phrases.</p> <p>Where in an action for the possession of lands, both parties claiming from a common source of title, the first deeds in defendant’s chain recite the lands as the land “formerly owned by” A., but in the deed made directly to him it is described as “the land known as the A. tract,” it is Held, there is a difference in the designation of the lands, for the lands, as to a whole or part, may have been owned by A., while describing the land as the “A” tract at least raises a question for the determination of the jury as to whether a separate and distinct tract by that name was conveyed, it being same evidence of location.</p>

<p>Appeal by plaintiffs from Bragcm, Jat tbe November Term, 1912, of Pitt.</p>

Appeal by defendant from Webb, J., at August Term, 1912, of NORTHAMPTON. This action is to recover damages for tbe alleged negligent killing of tbe plaintiff’s intestate. It was admitted at tbe trial tbat, in tbe early morning of 1 July, 1911, at 3 :25 o’clock, while it was very dark, tbe plaintiff’s intestate laid down on bis back upon tbe defendant’s track » between Weldon and Garysburg, and was in this position when be was stricken and killed by defendant’s train.

, from judgment rendered by consent at chambers, 20 December, 1912, from WASHINGTON. This is a controversy submitted without action on the following statement of facts: Section 1. Held: used, and enjoyed and disposed of by them for benefit of said church.” Judgment was rendered in favor of the plaintiffs, and defendant excepted and appealed.

<p>1. Religious Denominations — Free-Will Baptist — Independent Government — Majority Rule.</p> <p>Tiie colored “Free-Will Baptist Church” at Paniego, like all other Baptist churches, Is congregational in its church polity. Each congregation is independent in government, and a majority of its members control.</p> <p>2. Same — Church Polity — Conference—Injunction—Rights of Members.</p> <p>A “Free-Will Baptist Church” held its property under a deed made to its trustees in that name. The congregation of this church united with other churches in an annual conference known as “United American Firee-Will Baptist,” which adopted a certain discipline at one of the conferences, which was subsequently revised, but there was a division, and at the next conference those churches which had voted to reject the revision were denied a seat in the conference. Thereafter the members of this church by a divided vote adopted the conference revision, whereupon the minority withdrew and chose another pastor. Subsequently the majority of the congregation of the church elected trustees far the property, and chose a pastor. It appeared that there was no difference in doctrine or denominational creeds. In an action to enjoin the majority faction from worshiping in the church building, owned by the congregation, it is Held, the congregation had a right to join the conference and adopt its discipline, but this did not destroy their individuality and independence as a congregation, and that neither faction had the authority to exclude the other from' worshiping in the church, the ownership of the church building being in the whole membership, its use controlled under the majority rule.</p>

<p>Appeal by defendant from Cline, J., at tbe April Term, 1912, of Bertie. *</p>

<p>Appeal by defendant from Daniels, J., at December Special Term of Pamxico.</p>

, at Fall Term, 1912, of Hertford. This action is to recover $900 in the possession of the defendant Bridger.

Appeal by defendant from Gline, J., at September Term, 1912, of Pitt. This action is to recover damages for the wrongful expulsion of the plaintiff from the defendant’s train. The plaintiff testified in his own behalf as follows: “On Monday morning, the 19th of June, I went to Tarboro. There I went to the station of the East Carolina Railway. Mr. Eason and his wife were there in the station. They bought their tickets to Macclesfield. I bought a ticket for Macclesfield.

<p>1. Estates — Entireties—Husband and Wife — Privy Examination.</p> <p>A lease of lands for ten years by a husband and wife, which is held by them in entireties, without the privy examination of the wife, is void as to the latter.</p> <p>2. Estates — Entireties—Common Law — Lessor and Lessee.</p> <p>Estates held by husband and wife by entireties possess the same properties and incidents as at common law, and while neither may convey them so, as to defeat the right of the survivor to the whole, the husband alone may lease them during their joint lives, or until the death of his wife.</p> <p>3. Same — Constitutional Law.</p> <p>The properties and incidents to estates held in entirety by husband and wife are not changed or affected by Article X, see. 6, of our State Constitution as to the rights of married women.</p> <p>4. Lessor and Lessee — Leases—Renewals—Covenants—Deeds and Conveyances — Registration—Notice.</p> <p>The renewal clause of a lease of lands for two years, ’‘with the privilege of ten years thereafter on the same terms,” is sufficient in form and a valid part of the lease, and a covenant running with the land, and when duly recorded is binding upon the grantee, who takes with notice.</p> <p>5 Lessor and Lessee — Leases—Renewals—Covenants—Effect.</p> <p>Covenants in a lease of lands with privilege to the lessee to renew are binding upon the legal successors of the lessee as well as those of the lessor.</p>

<p>Appeal from Webb, J., at October Term, 1912, of Heiíteoed.</p> <p>Petition for partition of land, commenced before tbe clerk of tbe Superior Court of Hertford County and tried upon issues joined before bis Honor, Judge Webb, at October Term, 1912.</p> <p>Tbe plaintiffs allege that Sarab A. Cullens died seized in fee of said lands, and at ber death tbey descended to ber children, tbe plaintiffs and defendant William E. Cullens. Tbe defendant William E. Cullens answers that be denies section 2 and alleges that Sarab A. Cullens died seized in fee of only an undivided one-fourtb (%) interest in tbe land therein described, and tbat be (defendant) was a tenant owning an undivided one-fourtb (14) interest in fee in said'land. He further says tbat upon tbe death of Sarab A. Cullens one-eigbtb of her one-fourtb (14) interest descended to him, and tbat be is now tbe owner in fee of.part in tbe land aforesaid. Tbe defendant Perry makes tbe same answer as bis codefendant and claims to be tbe owner of bis interest in tbe lands, which have been sold by agreement pending this proceeding, and tbe litigation is over tbe proceeds.</p> <p>His Honor gave judgment tbat plaintiffs are tenants in common in fee with defendant William E. Cullens, each of an undivided one-eigbtb interest, as heirs at law of Sarab A. Cullens.</p> <p>Tbe defendants Cullens and J. W. Perry appealed.</p>

, at September Term, 1912, of Camden-. Civil action for the possession of lands. These' issues were submitted: 1. Did W. C. Ferrell make payment on tbe mortgage debt in question, as claimed by defendants? Answer: No. 2. Are plaintiffs tbe owners and entitled to tbe possession of tbe lands in question? Answer: Yes. 3. What is tbe annual rental? Answer: $20. From tbe judgment rendered, defendants appealed.

Civil action brought to recover upon a note. These issues were submitted to the jury: First. Was the note given for a valuable consideration? Answer: No. Second. Was the note sued on procured by fraud and under circumstances against public policy, as set out in the answer? Answer: Yes. Third. Was the note sued on indorsed to plaintiffs in due course and before maturity? Answer: Yes. From the judgment rendered, the defendant appealed.

Appeal by defendants from Garter, J., at January Term, 1913, of Pendeb. This is an action to recover 300 pints and balf-pints of whiskey. The action was commenced before a justice of the peace on 20 February, 1912, and the value of the property is stated in the summons to be less than $50.

<p>Appeal by defendant from Cline, Jat September Term, 1912, of Pitt.</p>

■Appeal by plaintiff from Daniels, J., at Fall Term, 1912, of VaNCE. This action was brought to recover certain land and personal property by the plaintiff, Clara Beacom, against the defendant, James Amos. The property in' controversy was originally owned by Robert Beacom, who was the father of Hamilton Beacom,-Clara Beacom, Mary J. Beacom, and Annie Beacom.

<p>Appeal by defendant from Garter, J., at September Term, 1912, of PeNdee.</p>

<p>Penalty’Statutes — Fertilizers—Qui Tam Actions — Cotton-seed Meal —Branded and Tagged — Intent—“Removal”—User—Seller—Interpretation of Statutes.</p> <p>Statutes should be construed to ascertain their intent and to remedy the evil, and in this qui tam action to recover the penalty prescribed by Revisal, sec. 3956, for the unlawful removing of cotton-seed meal in unbranded bags and without tags, as required by section 3957, these sections, construed with section 3960, are held to mean that such removal relates to those who “sell or offer for sale any cotton-seed meal without having the proper tags attached,” and not the farmer, for whose protection the statutes were enacted, so as to malee him liable for removing from the depot bags of cotton-seed meal, to be used under his crops, and which had been bought by and shipped to him for that purpose.</p>

<p>Appeal by plaintiffs from Gline, J., at September Term, 1912, of Pitt.</p>

Appeal by defendants' from Bragaw, J., at November Term, 1912, of Pitt. This action was brought to cancel two deeds made by Mrs. A. G. Daniel to her daughter, Ida Dixon, on the ground of mental incapacity of the grantor and undue influence exercised in procuring the deeds. Issues were submitted to the jury, and answered as follows: 1.

Appeal by plaintiff from Darnels, J., at October Terra, 1912, of FeaNKLIN. Tbis action was brought to enjoin the sale of a tract of land under the power contained in a deed of trust, to cancel certain other deeds, for an accounting, and for the redemption of the land, this being the relief appropriate in the case under the general prayer in the complaint.

<p>Deeds and Conveyances — Agreement to Stand Seized to the Use— Life Estates — Instructions for Jury — Tenants at Will.</p> <p>A father conveyed his home to his son, and ten days thereafter received from his son a paper-writing, under which the former claims a life estate, which partly reads as follows: “In consideration of the deed to our home, I hereby state that by mutual consent and agreement my father will act as guardian, and his rulings shall be final . . . the house to be a home for my father, etc. . . It is expressly understood that said property is not to be rented, mortgaged, or sold.” This was signed by tbe son as tbe “bolder of tbe deed.” There were no words of conveyance in or seal to the instrument. Gathering the intent from the paper-writing and from the evidence in tbis case, it is Releí, that a question was raised for the determination of the jury as to whether the defendant stood seized of the use of the property for the benefit of the parties named in the instrument for life, and it was error for the court to instruct the jury that the writing created a license terminable at will upon reasonable notice.</p>

Appeal by defendant from Foushee, J., at May Term, 1912, of MECKLENBURG. These two actions were brought to recover damages for negligently failing to transmit and deliver a telegraphic message sent by the plaintiff, S. D. Hoaglin, from Pineville, N. C., to his brother, the other plaintiff, who was at Granite Quarry, N. 0. The two cases were consolidated by consent of the parties, and tried together, as they involved substantially 'the same questions of fact and law.

<p>1. Carriers of Passengers — Tickets—Stipulations Limiting Liability —Intrastate Tickets — Void Stipulations.</p> <p>Stipulations upon a railroad ticket, limiting the liability of the carrier in a specified sum “unless a greater value has been declared by the owner and excess charges paid thereon at the time of taking passage,” and similar provisions in a bill of lading for the transportation of freight, are held in this State to be void as an attempt on the part of the carrier to contract against its own negligence; and such stipulations are not enforcible on intrastate tickets or bills of lading.</p> <p>2. S'ame — Interstate Tickets — Decisions of the United States Supreme Court.</p> <p>The decisions of the Supreme Cburt of the United States are controlling as to the validity of stipulations on tickets of common carriers limiting their liability for baggage, and similar provisions on their bills of lading or receipts for the transportation of freight or express, only where the tickets and bills of lading are interstate.</p>

Appeal by defendant from Cline, J., at September Term, 1912, of Pitt. In the summer of 1909 the plaintiffs contracted with the defendant, Cherry Bryant, to furnish the material for and to build a house for her upon a lot owned by the said defendant, Cherry Bryant, in the town of Fountain, for the sum of $250 for a turnkey job. The plaintiffs built said house according to contract, furnishing the material and all labor necessary, completing the house during April or May, 1910.

<p>Appeal by plaintiff from Justice, J., at Special Term, 1912, of HENDERSON.</p>

, at November Term, 1912, of Halifax. Civil action. Plaintiff complained of defendant and alleged that on 1 January, 1912, it sold and delivered to defendant a return trap No. 34, at the contract price of $250, under a written contract in terms as follows: LYTTON MANUFACTURING CORPORATION, FRANKLIN, VA. Order No. 26. Ship to A. 0. House Lumber Company, Weldon, N. 0. Date, January 3, 1912. Yia S. A. L. Ry. Terms: Net cask 30 days after installation. Type of trap, Return.

Civil action for damages for personal injury. These issues were submitted: 1. Was tbe plaintiff unlawfully and wrongfully assaulted by tbe defendant John Mobley, as alleged in tbe complaint? Answer : Yes. 2. If so, was tbe defendant Mobley at tbe time acting within tbe scope of bis employment as foreman of tbe knitting-room of tbe defendant, tbe Tarboro Knitting Mills? Answer: Yes. 3. Wbat damage, if any, is tbe plaintiff entitled to recover? Answer: Three thousand dollars.

<p>Appeal from Cline, J., at September Term, 1912, of Pitt.</p> <p>Civil action to recover on a life insurance policy. Tbe policy, in tbe sum of $1,000, was issued by tbe company on tbe life of one David A. Briley for tbe benefit of bis son George. David 'having died, tbe suit was instituted by plaintiff, claiming to be tbe owner under an absolute assignment from botb David A., tbe assured, and George, tbe beneficiary, evidenced by written contract in terms as follows:</p> <p>Absolute Assignment, with Power of Attorney.</p> <p> (Duplicate.) </p> <p>In consideration of tbe sum of $1 and of other valuable considerations to me in band paid, tbe receipt whereof is hereby acknowledged, I, David A. Briley of Bethel Township, in tbe county of Pitt and State of North Carolina, issued 24th day of March, 1906, by tbe National Life Insurance Company of Montpelier, Vermont, for tbe sum of $1,000 and No. 180121, do hereby assign, transfer, and set over unto S. T. Carson of Bethel, N. O., in tbe county of Pitt and State of North Carolina, the said policy or contract of insurance, with all its benefits, subject to its conditions and to tbe rules and regulations of tbe said National Life Insurance Company, to have and to bold tbe same unto tbe said assignee, bis executors or administrators forever.</p> <p>And I do hereby authorize and empower tbe said S. T. Carson, bis executors or administrators, to surrender said policy or contract of insurance at any time at or before its maturity, for its cash value, as tbe same may be determined by tbe said National Life Insurance Company at tbe time of said surrender, and to give to said company a valid and sufficient receipt therefor in tbe form required by said company, which receipt I hereby promise and agree shall be binding'upon me, my beirs, executors, or administrators; and more fully to accomplish and effectuate the purpose of this assignment, I do hereby make, constitute, and appoint the said S. T. Carson, his administrators or executors, my attorney irrevocable, to take all proceedings in my name and stead, but to his use to ask, demand, levy, require, and receive of and from the said National Life Insurance Company, or others, all and singular, the sum and sums of money which shall and may be found due and payable, belonging and coming unto me by any means whatsoever for, by, or on account of the above named policy or contract of insurance, whether by death or by act of the insured, or maturity under its terms, without the payment to me of any further consideration.</p> <p>And for the consideration above expressed, I hereby, for myself, my heirs, executors, or administrators, do covenant and guarantee to the aforesaid assignee, his executors or administrators, that the aforesaid policy or contract of insurance, No. 180121, belongs to me. and is free and clear from all liens and encumbrances; that I have made no other transfer or assignment of nor power of attorney .to collect upon the same which is now in force; that it is not affected by any proceedings in bankruptcy or insolvency instituted by or against me since its issue; that I have good right, full power, and lawful authority to assign the same in manner and form aforesaid; that I will at any time hereafter, at the cost of the said assignee, his executors or administrators, make, do, execute, or procure to be made, done, or executed, such reasonable assurances, acts, and instruments for the more effectual confirmation of this assignment as may be requested by him or them, and that the said assignee has, by the value paid by the said assignor, an insurable interest in the life insured, as represented by said policy or contract of insurance to an amount equal to its greatest value under any circumstances.</p> <p>In witness whereof I have hereunto, and to duplicate hereof, set my hand and seal, this 9th day of October, A. D. 1901.</p> <p>His</p> <p>David X A. Beiley [L. S.].</p> <p>His</p> <p>Geoege X Beiley.</p> <p>State of Nobth Carolina, County of Pitt — ss.</p> <p>Be it known, that on tbe 19tb day of October, A. D. 1907, before me, a notary public in and for said county in tbe State aforesaid, duly commissioned and sworn, personally came and appeared David Briley and George Briley, of legal age, to me personally known, and known to me to be tbe same persons described in and wbo executed tbe foregoing instrument, and to me acknowledged tbe same to be tbeir free act and deed.</p> <p>In testimony whereof I have hereunto subscribed my name and- affixed my seal of office, tbe day and year last above written.</p> <p>W. H. WOOLARD,</p> <p> Notary Public. </p> <p>My commission expires October 26, 1907.</p> <p>Suit having been instituted against tbe company, it paid tbe amount due on tbe policy into court, accompanied by tbe statement that it bad been notified by George Briley, tbe son and beneficiary, that be was tbe owner, and suggesting that said George be made a party. This having been done, George Briley answered, denying that be bad knowingly signed tbe contract, alleged that tbe signatures bad been procured by fraud, and further, in effect, that tbe policy bad been by him turned over to plaintiff and tbe written contract signed by him under a further agreement and understanding that tbe policy and its proceeds should be held by plaintiff as collateral for certain amounts which plaintiff bad advanced and might be required to advance in keeping tbe policy alive by payment of premiums; and so demanded judgment that after allowing plaintiff for all sums advanced by him and 6 per cent interest, that tbe remainder of tbe money be paid to defendant.</p> <p>Tbe court charged tbe jury properly on tbe issues as to fraud in tbe execution of tbe contract, and being of opinion that tbe instrument, if executed by George Briley, amounted to absolute assignment of tbe policy, and tbe same being in writing, defendant could only claim an interest in the policy or its proceeds by establishing bis alleged agreement by clear, strong, and convincing testimony, etc.; tbe position being expressed in tbe charge as follows: “Therefore, where one alleges that a will or deed, or an assignment of an instrument absolute upon its face was in fact intended for a different purpose, then the person alleging this condition or trust which he seeks to attach to the paper must. satisfy the jury, by evidence that is clear, strong, cogent, and convincing, that the alleged agreement between the parties, which does not.appear upon the face of the paper, was in fact a part of the agreement between them at the time, and that this intent should be included in the paper-writing.” Defendant excepted. Verdict on the issues for plaintiff. Judgment, and defendant again excepted and appealed.</p>

<p>1. Railroads — Construction of Road — Permanent Damages — Limitations of Actions.</p> <p>The provisions of our statute, relating only to railroads, that no suit, etc., shall be brought against them for damages caused by the construction of their road, etc., unless the same “shall be commenced within- five years after the cause of action accrues, and the jury shall assess the entire amount of damages which the party aggrieved is entitled to recover by reason of the trespass on his property,” contemplates that any and all damages arising, by reason of construction of a railroad or repairs thereto is barred after five years.</p> <p>2. Same — Subsequent Negligence — Increased Damages — Ponding Water — Questions for Jury.</p> <p>Where a railroad company, in constructing its road, more than five years before the commencement of the action, has constructed an insufficient culvert to carry off the water, causing it to pond upon plaintiff’s land to his damage, and there is further testimony that, within that period, the defendant had allowed the culvert to fill with mud and trash, stopping it up, and greatly increasing the damage to his land, the court upon the additional testimony cannot hold that the plaintiff’s cause of action is barred.</p> <p>3. Same — Interpretation of Statutes.</p> <p>The five-year statute of limitations, applying to damages caused to lands by a railroad company in constructing its- road, is inapplicable where the injury complained of is caused by its negligent failure to keep open a culvert it had there constructed, causing further damage to lands by the ponding of water thereon, for this additional damage is a wrong of a different character than that contemplated by the statute.</p> <p>4. Railroads — Negligent Construction — Damages—Ponding Water— Subsequent Negligence.</p> <p>Where a railroad company has built a culvert under its road to carry off the water, and thereafter has permitted this culvert to become stopped with mud and trash so as to cause further damage to plaintiff’s land by the ponding of water thereon, the plaintiff’s cause of action comes within the principle of a renewing trespass.</p> <p>5. Same — Limitation of Actions.</p> <p>Where the injury to lands caused by wrongfully ponding or diverting water on the lands of another is regarded as a renewing rather than a continuing trespass, the damages accruing within three years next before action brought can be recovered, though the injury may have taken its rise at a more remote period of time, unless’ sustained in a manner and for sufficient length of time to establish an easement.</p>

<p>Appeal by defendant from Garter, J., at August Term, 1912, of DUPLIN.</p> <p>Civil action. These issues were submitted:</p> <p>1. Did tbe defendant company wrongfully and negligently burn tbe property of tbe plaintiff, as alleged in tbe complaint? Answer: Yes.</p> <p>2. What damages, if any, is plaintiff entitled to recover? Answer: $450, with interest from 5 April, 1909.</p> <p>Tbe defendant appealed.</p>

<p>1. Liens — Purchase Money — Deeds and Conveyances.</p> <p>No lien for purchase money exists by operation of law in North Carolina in favor of the vendor; and where a grantor of standing timber only provides for the terms of deferred payment in his deed, without reserving the title, he has no lien on the timber conveyed.</p> <p>2. Same — Pleadings—Demurrer—Fraud—Questions for Jury.</p> <p>Where A alleges as his cause of action against B, that he has conveyed to him certain standing timber fo,r which, deferred payments were to be made, and it does not appear that he has reserved the title to secure these payments; that B has conveyed to C, who has his deed recorded; and that thereafter he and B have entered into a contract whereby the latter was to cut the timber in iiayment at a certain price based on the stumpage, and sues out an attachment on a part of the timber B has conveyed to, C., a demurrer to the complaint is good ; but where fraud is alleged in the transaction between B and O, that it was with the intent to cheat and defraud the plaintiff, an issue is properly raised for the determination of the jury.</p> <p>3. Pleadings — Fraud—Defective Statement — Amendments.</p> <p>Where a debtor whose property is sought to he attached has conveyed it to his codefendant, and there is an allegation in the complaint that it was with the intent to cheat and defraud him, and that the deed was fraudulently made, while not as explicit and full as it should be, is a defective statement of a good cause of action, and may be cured by amendment.</p>

II. Allen, J., at May Term, 1912, of New HaNOVER. Civil action. Tbe usual issues of negligence, contributory negligence, and damage were submitted. There was a verdict on all issues for plaintiff. From the judgment rendered the defendant appealed.

Appeal by plaintiff from Carter, J., at December Term, 1912, of New HaNOvee. This is an action to recover damages for the alleged unlawful ejection of the plaintiff from the defendant’s car on its suburban electric railway line operating between Wilmington and Wrightsville Beach. The following facts appear from the admissions in the pleadings and from the evidence: 1.

Appeal by plaintiffs from Garter, J., at November Term, 1912, of Lemtor. This action was commenced to recover damages for ponding water on the land of the feme plaintiff, and was tried at January Term, 1911, of the Superior Court of Lenoir County. The verdict of the jury was against the plaintiff, and judgment was rendered thereon, adjudging, among other things, that the plaintiff pay the defendant’s costs.

Appeal by defendant from Daniels, J., at,November Term, 1912, of Wilson. This is an action to recover damages caused, as alleged, by tbe negligence of tbe defendant. Tbe plaintiff left tbe sanatorium of Dr. Starns, in Atlanta, Georgia, at 7:30 o’clock 'on tbe morning of 23 February, 1911, for ber borne in Wilson, North Carolina. Sbe bad been a patient in tbe sanatorium for seven weeks, and was feeble and delicate.

Appeal by defendant from Garter, J., at September Term, 1912, of PENDER. Plaintiff, while in the employ of defendant as a carpenter, was ordered by O. D. Lupo, who was foreman of Ms squad, to go with one E. E. Mason and repair a glass door of the paint shop. In order to do the repair work, it was necessary to use a ladder. There was evidence that Lupo told Mason to take the plaintiff with him and do the work.

<p>1. Trespass — Injunction—Indemnity Bond — Orders—Subsequent Motions — Courts—Discretion.</p> <p>Where in. an action for continuous trespass upon the lands of another an injunction is sought, and upon the hearing of the motion the judge requires, the defendant to give a bond indemnifying the plaintiff against damages and permits the defendant to continue to use or go upon the land for a certain purpose eight months after its giving the bond, to which order the defendant did not except, it is Held, that after the defendant had complied with the order and availed himself thereof for the period of time allowed, his motion for an extension of time is directed to the discretion of the court, from which there is no appeal.</p> <p>2. Trespass on Lands — Damages—Injunction—Financial Responsibility.</p> <p>A continuous trespass upon the land of another to its damage is of such a nature that the law will give injunctive relief, irrespective of the question as to whether or not the trespasser is able to respond in damages.</p> <p>3. Deeds and Conveyances — Conditions Precedent — Nonperformance —T respass.</p> <p>When one goes upon the lands of another under a deed which was only to be delivered upon his performance of a certain condition, which he has failed to perform, and the deed has not therefore been delivered, he is a trespasser on the lands.</p>

This action was brought to recover certain pilotage fees. Plaintiff, who is a licensed pilot, with one Sellars, was cruising off tbe bar at the mouth of the Cape Fear River on 28 June, 1912, when they sighted and spoke the steamer Manchester o-Merchant, having seen a signal or call for a pilot displayed at her masthead.

<p>Vendor and Vendee — Cotton Seed — “Car-load”—Words and Phrases —Questions for Jury:</p> <p>Where the buyer of cotton seed in car-load lots refuses a part of the shipment upon the ground that the seller had overloaded the car in order to get the contract price, upon a declining market, and there was no specification as to the quantity or number of pounds to be shipped as a car-load, and the evidence is conflicting as to the number of pounds meant by a “car-load,” the question was properly left to the jury.</p>

Appeal by plaintiff from Lyon, J., at March Term, 1912, of MECKLENBURG. This action was brought by the plaintiffs, the Scottish Eire Insurance Company and the Monongahela Eire Insurance Company, against the defendant, the Stuyvesant Insurance Company, to recover of the defendant, under policies of reinsurance,-$702.87 and interest, money claimed to have been paid by it to Jasper Miller & Sons Company, the insured in the original policies.

<p>Appeal from Carter, J., at November Term, 1912, of LeNoiR.</p> <p>Civil action. These issues were submitted:</p> <p>First. Is tbe plaintiff tbe owner of tbe note sued on in tbis action? Answer: Tes.</p> <p>Second. "Was tbe execution of tbe note induced by fraud and misrepresentation? Answer: No.</p> <p>Third. Was the plaintiff purchaser of said note in good faith, for value, and without notice of any fraud and misrepresentation ? Answer:.</p> <p>Fourth. What amount, if any, is plaintiif entitled to recover? Answer: $500 and interest from date of note.</p> <p>Defendants appealed.</p>

H. Allen, J., at February Term, 1912, of SAMPSON. Civil action. These issues were submitted to the jury: 1. Was the description of the land in the original timber deed from the plaintiff to H. L. Pope, trustee, inserted by the mutual mistake of the plaintiff and said. Pope? Answer: Yes. 2. At the time of the execution of the extension deed referred to in the complaint was all the timber on plaintiffs’ lands embraced in said deed by the mutual mistake of the parties ?

<p>Appeal by plaintiff from Carter, J., at Spring Term, 1913, of LENOIR.</p>

<p>Appeal by defendant from Ferguson, J., at November Term, 1912, of HaRNEtt. ’</p>

Appeal by plaintiff from Garter, J., at January Term, 1913, of LENOIR. Cause beard on petition for recordari to justice court.

<p>Appeal from Daniels, J., at November Term, 1912, of "Wil-SON.</p> <p>Civil action. The action was to recover on a note for $2,500, subject to some credits executed by defendant E. W. Johnston and one James Mulligan, deceased, to plaintiff bank. Johnston being a nonresident, summons iwas duly served by publication as to hint, and, on attachment issued in cause, same was levied on $2,500 held by Barnes & Dickinson, also made parties defendant. It was claimed by said defendants Barnes & Dickinson that they held said $2,500 as attorneys for. the United States Fidelity and Casualty Company, a corporation that had gone on Johnston’s bond in a certain claim and delivery proceeding by said Johnston against Mulligan. To determine this question, an issue was submitted to the jury as follows: “Did the defendants Barnes & Dickinson hold the funds received by them from the sale of the property seized in the case of Jolmston v. Mulligan’s administrators, in pledge, or otherwise, to indemnify the United States Fidelity and Guaranty Company upon the bonds executed by Johnston upon which the United States Fidelity and Guaranty Company was surety? Answer: No.”</p> <p>The court charged the jury that if they believed the evidence to answer the issue “No,” and the jury so rendered their verdict. Thereupon the court gave judgment establishing an indebtedness of Johnston on the note at $2,125, with interest, and that the money seized by process and attachment to the extent required be applied in payment. Defendant excepted and appealed.</p>

<p>1. Pledgor and Pledgee — Pledge—Requisites—Possession.</p> <p>For the pledge of personal property as security to the payment of a note to be effectual, it is necessary that the actual or implied possession be given to the pledgee.</p> <p>2. Same — Commingling of Goods — Mortgages.</p> <p>Where a written pledge of merchandise is given by a merchant , for the payment of a note, and the pledgor retains the goods in his own warehouse, selling part of them from time to time and substituting like articles which have no distinctive marks of identification, it is not a sufficient segregation, and the property thus commingled cannot be sold by the pledgor in payment of the obligation, whether the written instrument be regarded as a mere pledge or a chattel mortgage.</p> <p>3. Notes — Pledges—Collateral—Other Indebtedness.</p> <p>A provision in a note that the collateral therewith deposited may be held by the bank to secure other indebtedness of the maker to the bank, due or to become due, is valid.</p> <p>4. Notes — Pledges—Collaterals—Corporations—Receivers—Distribution of Assets — Unsecured Creditors.</p> <p>Collateral deposited with a note given a bank by a corporation subsequently becoming insolvent and in a receiver’s hands may be held by the bank until the note is paid, or sold by the bank, and the proceeds, if more than sufficient, should be paid over to the receiver; and the bank is then entitled to prorate with the other unsecured creditors of the corporation.</p>

, at January Term, 1913, of WayNE. Petition to sell land for assets, beard on transfer to civil-issue docket, on the pleadings, demurrer, etc. Plaintiff, administrator of R. R. Best, filed petition to sell land of his intestate to make assets to satisfy unpaid claims against the estate, among others, a judgment rendered against said intestate in favor of D. A. Cogdell, administrator of T. W. Best, tbe latter being father of present plaintiff, before Hugh Humphrey, J. P., on…

<p>Appeal from Ferguson, J., at November Term, 1912, of Wayne.</p> <p>Motion in above cause to set aside verdict and judgment and to grant a new trial upon the ground of newly, discovered evidence. Judge Ferguson granted the motion and set aside the judgment. The plaintiff appealed.</p>

<p>1. Evidence — Depositions — : Commissions — Names of Witnesses— Harmless Error.</p> <p>Where in the same action two sets of depositions are taken of the same witnesses, and in one of the commissions issued therefor the witnesses arfe not named, and in the other they are named, and the evidence is substantially the same in both depositions, which are introduced at the trial, if any error was committed in permitting the depositions to be introduced under the commission not naming the witnesses, it was rendered harmless by the introduction of the depositions taken under the other commission, naming them.</p> <p>2. Carriers of Goods — Bills of Lading — Indorsements of Shortage— Burden of Proof.</p> <p>In an aetion against the carrier to recover for a shortage of one box in the delivery of a shipment' of two boxes of merchandise the plaintiff introduced in evidence the carrier’s bill of lading, showing the delivery of the two boxes to the carrier, Whereon the agent at destination had marked “one case short”: Held, the agent’s indorsement of the shortage was within the scope of Ms agency, and it was for the defendant to show, by the preponderance of the evidence, that the indorsement on the bill of lading was a mistake and that the case of goods marked short was actually delivered, when that defense is relied on.</p> <p>3. Same — Prima Facie Case — Charge Construed as a Whole — Harmless Error.</p> <p>In this action to recover of the carrier a case of merchandise, marked “short” on the bill of lading, the defendant contended that this indorsement was intended for another bill of lading and unintentionally made on the one covering the shipment in suit, which it had actually delivered to the plaintiff. The court charged the jury that this entry was an admission, prima facie, that one case was missing, which placed the burden on the defendant to show the contrary: Held, the words “prima facie” were inaptly used, but, taken in connection with the other relevant part of the charge, no reversible error is found.</p>

, at September Term, 1912, of New Hanover. Civil action. These issues were submitted to the jury: 1. Was the defendant guilty of negligence in respect to the conduct of the conductor, Garmon, which was a proximate cause of the plaintiff’s injury, as alleged in the complaint? Answer: Yes. 2. Was the defendant guilty of negligence in respect of the conduct of Van Amringe, the.baggage master, which was a proximate cause of the plaintiff’s injury, as alleged in the complaint ?

<p>1. Railroads — Condemnation—Crossing Other Railroads — Sidings— Interpretation of Statutes.</p> <p>■Where a railroad company is given by its charter the right to build its road, acquire rights of way by condemnation, etc., to intersect any other railroad upon the grounds thereof; to build sidings, switches, side-tracks, etc., and in making intersections with other railroads to have all the rights and privileges conferred upon railroads of this State, it is given authority, both by its charter and Revisal, 2556 (5) and (6), to condemn and acquire a right of way across the road of another company in order to construct a siding to manufacturing plants or other business enterprises for the handling of their freight. Butler v. Tobacco Oo., 152 N. C., 416, distinguished.</p> <p>2. Same — Mutual Consideration — Change of Crossing — Assessing Damages — Findings of Court — Questions for Jury.</p> <p>A railroad company having the power of condemnation across the road of another company should exercise this right with due regard to the convenience of both parties and with as little interference with the use of the other party of its own track as can be obtained without a great increase in its cost and inconvenience; and it appearing in this case that the defendant had a spur track or siding where the plaintiff company proposed to cross it, and that the plaintiff may reasonably be required to cross at a point beyond the end of the defendant’s spur, it is Held that the trial court, in a reconsideration of this case, will ádjudge as to the feasibility of the suggested alteration of the plaintiff’s route, and call in the aid of the jury if necessary, any additional cost to the plaintiff to be considered in diminution of the defendant’s damages.</p> <p>3. Railroads — Condemnation — Crossing Other Roads — Immaterial M atters — Com pet it i o n — State Poli cy.</p> <p>Where a railroad company has a right to condemn a way across the track of another company to manufacturing plants or business places, for a side or spur track to which the other company also has its siding, in competition for freight, the question whether it is necessary for the plaintiff company to build its spur is one in its discretion; and controversies as to whether the defendant could and would shift the plaintiff’s cars on its own track advantageously to the plaintiff, and for a reasonable charge, are immaterial. Semble, it is the policy of the State to encourage competition among common carriers for the advantage of the public.</p> <p>Hoke, J., dissenting.</p>

<p>Appeal from Bragam, J., at September Special Term, 1912, of BbuNswicK.</p> <p>Action of ejectment. At close of plaintiff’s evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.</p>

, at August Term, 1912, of SampsoN. Civil action to recover possession of a bouse and lot in Clinton, N. C., and for other relief. Held: in effect, that the petition for dower amounted to a dissent from the will of the husband, restoring the legal title of his realty to his children and heirs at law, subject to the dower interest allotted, to wit, in the house and lot, the subject in controversy; that Mrs. Giles, as to her mortgage interest, was a purchaser for value…

<p>1. Judgments by Default — Nominal Damages — Inquiry as to Measure of Damages — Evidence. '</p> <p>A judgment by default and inquiry for. want of an answer establishes only tbe fact that some damages are recoverable, leaving -the amount open to inquiry, with the burden on plaintiff to prove it, and the defendant may show that it is nominal only.</p> <p>2. Same — Action of Conversion — Mortgages—Novation.</p> <p>Where damages are sought for the conversion of a mule sold under a registered chattel mortgage, and judgment by default has been obtained, it is competent for the defendant to show that the mortgagee has since taken from the mortgagor other security and had canceled the mortgage of record, this transaction amounting to a novation of the mortgage debt, which would operate as a discharge to the defendant from any obligation he owed the plaintiff by reason of the latter’s lien, to the full value of the mortgaged mule.</p> <p>.Walker, J., dissenting; Allen, J., concurs in dissent.</p>

<p>1. Wills — Devises, “Fee Simple” — Interpretation of Statutes.</p> <p>A devise of land is construed to be in fee simple, unless otherwise expressed, or the intent of the testator, gathered from the will itself, shows to the contrary. Revisal, 3138.</p> <p>2. Wills — Interpretation—Devises, Fee Simple — Trusts and Trustees —Descent and Distribution.</p> <p>Where by an item in a will, which is complete in itself and requires no further construction of the other parts of the will to show the intent of the testator, a devise of lands is made to four of his children, appointing a trustee to whom the executors are to turn over the real and personal property therein mentioned, to be used by him in his discretion for their maintenance and support until the youngest devisee becomes 21 years of age, and then the trustee may apportion among them certain amounts, either in money or property, as he may deem proper and right: Held, that the fee-simple title of the lands devised in this item vested in the four children therein named, subject to the trust imposed, and upon the death of one of them during minority it descended to her heirs at law.</p> <p>3. Wilis — Property — Words and Phrases — Interpretation—Intent— Items Construed Together.</p> <p>_ While the word “property” is broad enough under some circumstances to embrace realty as well as personalty, it will not so be construed as to apply the language used in one item of the will, where it was so intended, to another item which is complete in itself and expresses a different intent.</p> <p>4. Same — Fee Simple — Contingent Limitations.</p> <p>Where in a certain item of a will a bequest is made to four of the testator’s children named in the preceding item, “not to be sold, and used for their good. If either of these four last named children should die, the property to go to the survivors of said four children,” it is Belcl, that by the use of the word “property,” the testator had reference only to the property mentioned in this item, and not to that of the former item, wherein by proper construction the lands therein specified were devised in fee, subject to certain trusts imposed for the benefit of these children.</p>

<p>1. Pleadings — Estoppel—Judgments—Caveat.</p> <p>Wliere in an action to construe a will there is allegation that the will is valid, and a party to that action neither denies the allegation nor requests the court not to proceed with the cause until he has been afforded an opportunity to file his caveat, and the matter has been finally adjudicated and distribution under the will directed, the party thus acting is thereafter barred of any right he may have had to caveat the will and have it set aside.</p> <p>2. Wills — Caveat—Judgment—Estoppel—Limitation of Actions — Interpretation of Statutes.</p> <p>While the filing of a caveat to a will is not barred by the statute until after the lapse of seven years, this does not apply when the party is estopped by a former judgment, Eevisal, sec. 3133, not being an enabling statute, but creating a bar from lapse of time where there was none before.</p>

<p>1. Insurance — Employer and Employee — Indemnity—Cost of Defending Suit.</p> <p>A provision in a policy indemnifying an employer, that the company “will at its own cost defend suits in the name and behalf of the insured” for injuries to an employee covered hy the policy, renders the insured liable for reasonable expense incurred by the employer in defending a suit contemplated by the policy, wherein he was successful and unable to recover the costs under an insolvent prosecution bond.</p> <p>2. Insurance — Indemnity—Structural Alterations — Ordinary Alterations — Interpretation of Policy — Words and Phrases.</p> <p>Where a policy of indemnity insures an employer against “damages on account of bodily injury” to an employee, “including death,” and in express terms excludes injury or death caused to “any person in connection with the making of additions to or structural alterations in, . . . any building or plant,” by the term “structural alteration” is meant such as would change the physical structure of the plant, and not such as would be an “ordinary alteration or repair,” and in this case it is held that it was a question for the jury as to whether the substitution of a brick chimney for iron smokestacks was only an “ordinary alteration,” and not excluded by the provision of the policy.</p> <p>3. Same — Opinion—Evidence—Observation.</p> <p>Upon the question of whether the substitution of a brick chimney for iron smokestacks at the plaintiff’s plant was an ordinary alteration, it was competent for a witness of long experience in sueli matters to testify, from his own observation, whether the alteration was an ordinary one, and not excluded from the policy of indemnity of the employer by the terms “structural alterations” therein used.</p> <p>4. Insurance — Indemnity—Employer and Employee — Ordinary Alterations.</p> <p>The plaintiff contracted to have a brick chimney built to replace iron smokestacks used in its plant, and as a part of the consideration agreed to furnish sand from its own premises. "While its employee was digging out the sand, it caved in on him, causing his death: Held, the employer was indemnified for the death of the employee under a policy wherein the insurer was made liable for the death of an employee, suffered “while within or upon the premises, etc., by reason of the operation of the trade or business . . . including the making of repairs and such ordinary alterations as are necessary to the care of the premises and plant, and their maintenance in good condition.”</p>

, at July Term, 1912, of ÜNSlow. Civil action, trespass q. c. fr., involving also an issue as to title. The jury rendered tbe following verdict: First. Did the defendant trespass upon tbe lands of the plaintiff, as alleged in the complaint ? Answer : Yes. Second. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $50. Third. Is defendant’s lessor the owner of the lands described in the answer, or any part thereof? Answer: Yes. Fourth.

<p>1. Deeds and Conveyances — Description of Lands — Parol Evidence.</p> <p>In an action to recover damages of a grantee for wrongfully cutting timber, it appeared that the deed to the timber in question described the lands on which the timber was situated as follows: “All the timber of the size and kind hereinafter named” on the tract o,f land in a certain named township and county, adjoining the lands of T., L.’s estate, and others, and being the tract upon which the grantor then resided, containing a stated number of acres: Held, the land is sufficiently described to admit of parol evidence to fit the land to the description.</p> <p>2. Same — Standing Timber — Size Not Specified — Interpretation of Deeds.</p> <p>Where a conveyance of timber on certain described lands fails to state the size of the trees to be cut therefrom, it passes title, in the quantity specified, to all the timber trees growing upon the land or lying thereon in their natural state which are capable of being sawed into merchantable lumber by the mills - and methods usually employed by sawmill men in that vicinity.</p> <p>3. Deeds and Conveyances — Standing Timber — Time for Cutting and Removing Timber — Extension Privilege — Intent—Interpretation of Deeds.</p> <p>Where a conveyance of standing timber on described lands provides that the grantee “shall have four years from the date of the deed to commence cutting' and removing the timber, and in case the same is not commenced within that time” the conveyance and all the provisions and agreements for paying for said timber to be void, the quantity sold being 100,000 feet, with the; privilege to the grantee of cutting the same amount, at the same price, in addition, which privilege was exercised and the terms of payment complied with: TielcI, from the intent gathered from the entire instrument, the grantee therein had four years from its date in which to enter upon the land and commence cutting, and having commenced cutting within that period, 'and given notice of his election to take the additional 100,000 feet and tendered the money within the time, he must he alio,wed, after the four years, the reasonable time required to continue and complete the cutting of the amount stipulated for in his deed.</p>

, at January Term, 1913, of Pendeb. Civil action to recover damages for wrongful injuries to the person. Tbe evidence of plaintiff tended to sbow that on 7 March, 1910, be was a passenger on defendant’s train, having purchased and holding a ticket from Wilmington, N. C., to Rocky Point.

Appeal by plaintiff from Webb, J., at September Term, 1912, of Robeson. Civil action. These issues were submitted: 1. Was tbe death of plaintiff’s intestate caused by tbe negligence of tbe defendant, as alleged in tbe'complaint? Answer: No. 2. Did tbe plaintiff’s intestate by bis own negligence contribute to bis injury, as alleged in tbe answer? 3. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant on account of tbe alleged injury? Plaintiff appealed.

Appeal by plaintiff from' Webb, J., at September Term, 1912, of RobesoN. Civil action. Tbe following issues were submitted: 1. Did tbe defendant execute tbe contract, notes, and mortgages alleged in tbe complaint? Answer: Tes. 2. Did tbe defendant accept tbe engine and fixtures after demonstration and inspection of same by bim, as alleged in tbe complaint? Answer: No. 3.

<p>Appeal from Bragaw, J., at September Term, 1912, of Bla-den.</p> <p>This is a proceeding to protest an entry made by the defendant, J. H. Downing, of a certain tract of land, said to -contain 200 acres. The entry was expressed in these terms:</p> <p>J. H. Downing produced to the undersigned entry taker a writing, signed by himself, that he lays claim and enters a certain parcel or tract of land vacant, unappropriated and subject to entry. The land is situate in Bladen County, Colly Swamp being the nearest water-course, being in Colly Township, in and around Ditch Bay. The lines of other persons are J. El. Downing, A. E. Martin, Kate Owens, and others. The number of acres claimed are 200. This entry was made 24 September, 1908. William Wi-iitted,</p> <p> Entry Taker. </p> <p>This entry 'ivas protested by the plaintiff, A. E. Cain, on 5 October, 1908, and an issue made up and sent to the Superior Court for trial. In that court the following proceedings were had: The protestant moved the court to dismiss the entry, on account of the insufficiency of the description in said entry to allow the enterer to proceed thereon with his proof. The en-terer offered to prove that adjoining landowners mentioned in the entry entirely surrounded the land entered, and that this land is vacant and unappropriated, and that the land is near Ditch Bay and Colly Swamp, as set out in the entry; and the court, being of the opinion that the description in the entry is too vague and uncertain to be aided by parol proof or to allow parol proof to be introduced on the issues raised in the entry and protest filed, allows protestante motion to dismiss, and the enterer excepted. Judgment was entered for the plaintiff, protestant, and the defendant, the enterer, appealed.</p>

Appeal by plaintiffs from Bragcm, J., at September Special Term, 1912, of BruNswick. This is a proceeding for the partition of five tracts of land between the heirs of Benjamin Fulwood.

, at September Term, 1912, of Wake. This action was brought in the Superior Court of Wake County by the plaintiff, a nonresident corporation, against the defendant, also a nonresident corporation, and it is alleged in the complaint substantially: 1.

<p>Appeal from Carter, J., at August Term, 1912, of DupliN.</p> <p>This is an action brought by the plaintiffs, as beirs of Mrs. E. M. Boney, to recover an interest in certain lands in and around the town of "Wallace, in Duplin County, and to have set aside a deed made by Mrs. E. M. Boney to the defendant Paisley Boney, for said lands, the plaintiff alleging four causes of action: one being that the deed obtained by Paisley Boney from Mrs. E. M. Boney was obtained through fraud and undue influence; another alleging that the deed, though absolute on its face, was intended as a security 'for the debt due by Mrs. E. M. Boney to Paisley Boney; another that the deed was made to Paisley Boney in trust to hold for himself and the other parties plaintiffs and defendants; and the fourth that Mrs. E. M. Boney held the title in trust for herself and the plaintiffs and defendants, and that Paisley Boney took the deed with the knowledge of these facts, without paying value therefor. ■</p> <p>Gabriel Boney, under whom all of the parties claim, was married twice, leaving children surviving him at the time of his death by each marriage, the plaintiffs and defendants being children of the second marriage and the issue of such children as had previously died.</p> <p>During the lifetime of G. Boney he and two of his sons, namely, ~W. J. Boney and D. E. Boney, formed a copartnership and engaged in- the mercantile business, which proved disastrous and resulted in the said firm executing a deed of assignment to G. J. Boney, another son of the said Gabriel Boney, the deed of assignment conveying among other things the land owned by W. J. Boney and the land owned by D. E. Boney and the land in controversy, which was owned by Gabriel Boney and known as his home place.</p> <p>The assignee took charge of the assigned property, and in the course of the administration of his trust the real estate of W. J. Boney, D. E. Boney, and Gabriel Boney, which was conveyed by the deed of assignment, was by G. J. Boney put up and sold, and at the sale W. J. Boney’s wife bought the real estate formerly owned by "W. J. Boney, covered by the deed of trust; D. E. Boney’s wife bought the real estate formerly owned by D. E. Boney and covered by the deed of trust, and Mrs. E. M. Boney bought the land in controversy wbicb was formerly the property of Gabriel Boney, known as the home place, and deeds were made accordingly by G. J. Boney, assignee.</p> <p>There was evidence that the,defendant Paisley Boney looked after his mother’s business, and that he was trusted by her.</p> <p>There was also evidence that he supported his mother until his death, 30 April, 1906, and that he also supported three single sisters until their marriage; Mr. Westbrook, a son-in-law of Mrs. Boney and a plaintiff, testifying on cross-examination as follows: “I first became acquainted with'the family of Mrs. E. M. Boney in 1896, and went there frequently for about twenty months up to the time of my marriage. They were furnished the necessities of life by their own efforts and by her son Paisley. I mean, that they sewed and did things of that kind; I didn’t mean that they took in sewing. My wife taught music. I don’t know how much that amounted to. It would amount to something. During that time they had practically no income except what Paisley gave them. The farm yielded very little. There was Mrs. E. M. Boney and three girls living with her, from 18 and 19 to 24 and 25 years of age. They got along on mighty little. I don’t know about the way they lived. I didn’t know who paid for the clothes my wife was married in. I would have to say it was hearsay. Prom 1897, after I was married, up to the death of Mrs. E. M. Boney, they were supported by the same one who had supported them before. That was Paisley. I don’t remember when Miss Lucy was married. I think it was a year or more after I was married. After she was married, the mother and Lula were left at the place. As far as I know, Paisley Boney continued to support them and bear all expenses. I never saw an account. If I answer, it will be from hearsay. I know that the burden of the family rested on Paisley’s shoulders. Walter Boney was married at the time I became acquainted with the family, and did not contribute to the support of the family, to my knowledge. At the time I first knew the family, Ed. Boney was married and had a family. I am not positive about where he lived; I don’t know whether he was in Georgia or North Carolina. I don’t know anything about whether he contributed to tbe support of tbe family. I do not know of bis having sent money to Ed. to keep him out of trouble. I don’t know of my own knowledge that Ed. Boney, after bis marriage, often bad to wire to Paisley Boney for assistance. I do not know of Paisley incurring large expenses in cases of sickness and things of that kind. Since I have been married I have not 'contributed anything to my wife’s mother or single sister’s support. I do not know whether Ed. Cowell and his wife have or not. It was understood that Paisley was working hard as an express messenger. I don’t know about his buying chickens and eggs to make a living for the family. To my knowledge, he never refused them a single thing he was able to give them. I think he was exceedingly good to the girls.”</p> <p>The deed of Mrs. E. M. Boney to Paisley Boney is of date 6 September, 1891, and there was no evidence of any claim by the plaintiffs prior to the death of Mrs. Boney.</p> <p>The plaintiffs offered to prove by G. J. Boney, the grantor in the deed to Mrs. Boney, conversations and transactions between them, tending to establish the second, third, and fourth causes' of action. This evidence was excluded under section 1631 of the Revisal, and plaintiffs excepted.</p> <p>Plaintiffs also offered to prove by D. E. Boney, at the time of the purchase by Mrs. E. M. Boney, it was understood that she was buying for herself and children. This witness did not state there was any such understanding with Mrs. Boney, but that it was so understood between himself and W. J. Boney and G. J. Boney. The plaintiff admitted that they could not show knowledge on the part of Mrs. Boney, except by evidence of conversations by G. J. Boney, and the evidence was excluded, and plaintiffs excepted.</p> <p>The plaintiff, Mr.'Westbrook, testified, among other things, that he went to see the defendant Paisley Boney in May after the death of Mrs. Boney, and carried two letters written by W. J. Boney to Walter Boney; that he handed the letters to the defendant, and he appeared to read them; that after he read the letters, witness asked him what he proposed to do about the matters dealt with in the letters; that he waited some time; that witness repeatedly asked for a decision, and defendant finally said be would make no statement for fear be might say something be would regret later.</p> <p>The first of these letters bears date 16 August, 1908, and in it the writer says: “Paisley advertised and sold some lots on Main and Railroad streets, which realized good prices; 35x90 feet sold for $110 to $225 per lot; eight lots sold for $1,488, one-fourth cash, balance in one, two, and three years time; and he anticipates selling more, thereby reimburse him for the money he has so long been spending supporting the mother and sisters, also to reimburse Ed. for his outlay; then there will be a residue to be divided after your mother’s death. Unless Paisley should be able to buy up the shares, which I think he would like to do, he will probably write you about the matter later— as soon as he can see his way clear to do so.”</p> <p>The second letter bears date 15 December, 1898, and in it the writer says: “As I told you in the first'letter, there are divisions to be made in father’s home place by Paisley; he has bought out the whole tract and paid off the debt, and now there is a residue, and he proposes to either give the others a share or pay them for their shares.”</p> <p>The plaintiffs offered the letters in evidence, and his Honor excluded them, and plaintiffs excepted.</p> <p>The deposition of Mrs. Harriet Turner was taken at the instance of the defendants, and was on file.</p> <p>The plaintiffs offered in evidence the cross-examination, and upon objection his Honor held that this could not be done, and that plaintiffs must introduce the whole of the deposition or none, and plaintiffs excepted. His Honor then excluded two questions and answers in the examination in chief, -objected to by the plaintiffs, leaving as the only part of the examination in chief read to the jury the following:</p> <p>Q. Tour name is Harriet 0. Turner? A. Yes. ■</p> <p>Q. How old are you? A. Seventy-six.</p> <p>Q. "What relation were you to Mrs. Elizabeth M. Boney? A. I was her sister.</p> <p>The entire deposition was tben admitted, except his Honor excluded two questions and answers bearing on the second, third, and fourth issues, and the plaintiffs excepted.</p> <p>There are other exceptions to the charge and to the refusal to give certain instructions.</p> <p>His Honor entered judgment of nonsuit as to the second, third, and fourth causes of action, and plaintiffs excepted.</p> <p>The jury returned the following verdict:</p> <p>1. Was the deed from E. M. Boney to the defendant Paisley Boney, dated 6 September, 1897, procured by fraud and undue influence of the defendant Paisley Boney, as alleged in the complaint? Answer: No.</p> <p>Judgment was entered upon the verdict in favor of the defendants, and the plaintiffs excepted and appealed.</p>

<p>1. Deeds and Conveyances — Adverse Possession — Color—Evidence —Nonsuit.</p> <p>In an action to recover lands, where the plaintiff relies on deeds describing the lands by metes and bounds as color of title and there is evidence in his behalf tending to show that he and those under whom he claims have been in open, continuous, and uninterrupted adverse possession, manifested by distinct acts of ownership under the deeds, for more than thirty years, it is sufficient to establish plaintiff’s title, if the jury so find the facts to be; and a motion to nonsuit should be denied.</p> <p>2. Deeds and Conveyances — Adverse Possession — Title—Constructive Possession — Interpretation of Statutes.</p> <p>Where a party brings his action to recover lands, and shows that he acquired title by adverse possession for more than thirty years, it follows, nothing else appearing, that he has had at least constructive seizin or possession of the lands within thirty years before he brought his suit, as required by Revisal, sec. 3S3.</p> <p>3. Deeds and Conveyances — Color of Title — Adverse Possession— Constructive Possession — Outer Boundaries of Deed. ,</p> <p>Where there is no question of lappage on the lands, by conflicting calls in the deeds of contesting parties and claimed by one of the parties by adverse possession under color of title, who shows possession in a part of the lands as described in his deeds, the law constructively extends his possession to the external or outer boundaries of his deed.</p> <p>4. Deeds and Conveyances — Color—Adverse Possession — Location of Boundaries — Nonsuit—Evidence, How Considered — Scintilla of Evidence.</p> <p>Where the plaintiff claims the land in suit by adverse possession under color of title, by deeds with definite description of boundaries, upon a motion to nonsuit the evidence is viewed in the light most favorable to the plaintiff, and the motion should be denied if there is more than a scintilla of evidence as to the location of the boundaries to the land described.</p> <p>5. Pleadings — Admissions—Possession at Commencement of Action —Evidence.</p> <p>Where the defendant, in an action to. recover lands, admits in his answer that he was in possession of the, loons in quo at the time of the commencement of the action, it is not necessary for plaintiff to prove it by his evidence. As to, whether this is necessary when the title in controversy is independent of the possession, Qumre.</p>

, at August Term, 1912, of Duplin. This is an action to compel specific performance, based upon tbe following- instrument: This agreement, executed this 17 January, 1905, by and between J ames G. Kenan and heirs of O. R. Kenan,, of the county of Duplin and State of North Carolina, of the .first part, and J. B. Winders and L. F. Hall of tbe second .part: Witnesseth, That said party of the first part, for and in consideration of the sum of $500 to him in hand paid by the said…

Appeal by defendant from Peebles, J., at October Term, 1912, of SCOTLAND. This is an action to recover land. The plaintiff offered in evidence a grant to Andrew McMillan for 6,000 acres of land, of date 31 January, 1853, and mesne conveyances from the said McMillan to himself.

Appeal by plaintiffs from Bragaw, J., at September Term, 1912, of BRUNSWICK. Tbis action was brought to recover a tract of land containing 200 acres. Plaintiffs claimed the land under a deed from Evander Canady. At the close of the plaintiffs’ testimony, the court, on motion of defendants, nonsuited the plaintiffs, and they appealed.

, from an order signed at chambers, 1 March, 1913, from Wake. This is an action to restrain the defendant from closing a passway under its track, leading from one part of the plantation of the plaintiffs to another part.

Appeal by defendant from Peebles, J., at December Term, 1912, of RICHMOND. Tbis action was brought to recover $250, which plaintiff alleged that he had paid to M. A. Land, agent of defendant to sell him Lot No. 77 in the plat of the W. C. Leak lots in Hamlet, N. C. Defendant denied his liability.

Appeal by defendant from restraining order of Cline, J., lieard at chambers, by consent, at Wilson, 13 February, 1913; from LeNOIR.. This is an appeal from an order granting an injunction to tbe bearing, forbidding defendant from trespassing on tbe lands of plaintiff.

Appeal by plaintiffs from Carter, J., on refusal to grant a restraining order, heard at chambers 25 March, 1913, from 'WayNe. This is an action brought by the plaintiff, a taxpayer and citizen of the city of Goldsboro, in his own behalf and in behalf of other citizens and taxpayers, to restrain the issuing of certain bonds and the levying and collection of certain taxes to pay the interest thereon, and to provide a sinking fund for the payment of the principal.

Appeal by plaintiff from Bragaw, J., at November Term, 1912, Of CRAVEN. This proceeding was brought for the purpose of processioning the lands of the parties, who are adjoining proprietors, and of ascertaining and declaring where is the dividing line between them. The case, in one view of it, turns upon the true location of the line which is first called for in the deeds, under which the plaintiff claims as color of title.

<p>1. Deeds and Conveyances — Contracts to Convey Lands — Options— Consideration — Compliance.</p> <p>An option for the sale of lands based upon a valuable consideration is an offer to sell which may not be withdrawn by the grantor before the expiration of the time provided in the option; and in order to constitute an acceptance, the optionee must not only indicate that he will accept, but he must also pay or tender the purchase price within the time limited, the option imposing this condition. Winders v. Kenan, ante, 628, cited and applied.</p> <p>2. Same — Tender of Payment — Waiver.</p> <p>Where the grantor of an option on lands given for a valuable consideration has refused to make a warranty deed according to the terms thereof, and by refusing to include certain lands embraced by his contract or pay off encumbrances he had agreed to pay, or to give bond for their payment as proposed by the optionee, a tender by the optionee of the purchase price within the period of time specified for the running of the option is unnecessary, and the refusal of the grantor to comply with the terms of the contract, in this'manner, which he was obligated to perform, is a waiver of a legal tender of the purchase price; and the optionee, who has ever continued ready, able, and willing to pay, may enforce the contract according to its terms in his action thereon, and secure a proper deed upon the payment of the xirice agreed.</p> <p>3. Deeds and Conveyances — Contracts—Options—Tender of Deed— Description — Requisites.</p> <p>Where under an option to purchase land given for a valuable consideration the grantor tenders a deed which omits a part of the description of the lands embraced in the option, and important in identifying the lands contracted to be conveyed, the deed tendered is not a compliance with the terms of the option; and where by such omission a part of the lands agreed upon are excluded from the deed, an acceptance of the deed by the op-tionee would prevent him from claiming the lands omitted, and hence he is justified in refusing to accept the deed as not being in accordance with the contract of purchase.</p> <p>4. Deeds and Conveyances — Legal Tender — Currency—Waiver.</p> <p>• While it is necessary to constitute a legal tender for the purchase price of land upon demanding a deed therefor, that it be made according to the acts of Congress, specifying what is legal tender in such transactions, it is required that when the tender is made in money constituting a part of the common currency of the country and ordinarily passing as such, it should be objected to at the time on the ground that it is not legal tender; and in this case, expressions that the currency was not legal tender, and it appearing that the. grantor refused to deliver the deed for other reasons, were insufficient on the plea that tender had not been properly made.</p>