Volume 162 — North Carolina Reports

Appeal by defendant from Cook, J., at February Term, 1912, Of GRANVILLE. This is an action brought to February' Term, 1912, upon a note. The complaint was verified by the attorney of the plain-, tiff as follows: “That tbe facts set forth in the foregoing complaint as of his own knowledge are true, and that those stated on information and belief he believes to be true.

<p>1. Reference — Findings of Fact — Confirmation—Appeal and Error.</p> <p>The findings of fact of a referee, confirmed by the trial judge, are conclusive on appeal if there is any evidence to support them.</p> <p>2. Deeds and Conveyances — Description Sufficient — Parol Evidence.</p> <p>A description of lands in a deed “being one acre of land adjoining L., in one corner of the field now turned out, and lies near and including the spring, it being a portion of the H. tract, conveyed by D. to M., and others, public school committee of District No. 10, S'tanly County, deed bearing a certain date, giving book and page in register of deeds’ office, being the property formerly owned by District No. 13, changed by redistricting the schools of the township,” etc.: Held, sufficiently definite to admit of parol evidence in fitting the description in this case, it appearing that the land had been known as the “schoolhouse lot” for twenty or thirty years, etc.; and it is further held that a variance was immaterial, that the lot did not .adjoin the L. lot, but cornered on it in an old field.</p>

<p>Appeal by defendant from WhedSbee, J., at October Term, 1912, of Guilford.</p> <p>This is an action to recover damages. Tbe plaintiff alleges in bis complaint:</p> <p>1. Tbat plaintiff is a citizen and resident of the county of Guilford, State of North Carolina.</p> <p>2. Tbat at tbe times hereinafter mentioned tbe defendant was and is now a corporation organized and existing under and by virtue of tbe laws of tbe State of Virginia, and owned, maintained, controlled, and operated witbin tbe State of North Carolina and elsewhere a system of railroads known as tbe Southern Railway, and was and is engaged in tbe business of a common carrier of passengers and freight.</p> <p>3. Tbat plaintiff was at tbe time hereinafter mentioned and is now tbe owner and in possession of a bouse and lot known as bis home place, located in tbe city of Greensboro, county of Guilford, State of North Carolina, described as follows: Beginning at tbe southwest corner of tbe land of James Dick on and at the mouth of the lane separating said Dick from, Mrs. Kerr, and runs thence north 289 feet with said Dick’s line; thence west 146 feet with said Dick’s to tbe center of tbe track of tbe railroad; thence south 15 degrees west 296 feet along said railroad to Hendrix Street; thence with tbe said Hendrix Street east 3 degrees south 200 feet to tbe beginning. (Recorded in Book 65, page 483.) Tbat plaintiff acquired title to said lands under and by mesne conveyances from one Jesse H. Lindsay, under whom defendant also claims title to its alleged right of way, as hereinafter described.</p> <p>4. Tbat tbe Piedmont Railroad Company, a corporation organized and existing under and by virtue of tbe laws of tbe State of North Carolina, built, completed, and bad in operation before tbe year 1865 a line of railroad from Danville, in tbe State of Virginia, to Greensboro, State of North Carolina, and its said railroad and right of way adjoined on tbe west tbe lands of plaintiff above described.</p> <p>5. That the said Piedmont Railroad Company acquired its title to that part of its right of way for said road adjoining plaintiff’s lands, as above described, by deed 7 April, 1862, from Jesse H. Lindsey, above mentioned in the third paragraph of this complaint, to said railroad company, and same is recorded in the office of the Register of Deeds of Guilford County, State aforesaid, in Book 38, page 704, which said record is hereby referred to and asked to be taken as a part of this complaint.</p> <p>6. That after execution and delivery of said deed as aforesaid and under the authority'therein given, the said Piedmont Railroad Company, prior to the year 1865, entered upon the lands in said deed described and located its right of way, constructed its roadbed and side ditches thereon. That as plaintiff is informed and believes, that part of said roadbed and side ditches adjacent to plaintiff’s property was in a cut from 5 to 10 feet deep and from 40 to 45 feet wide at the bottom, and from 50 to 55 feet at the top, made by the said Piedmont Railroad Company, and those claiming under it,, including the defendant, continued to use said roadbed and ditches in substantially the same condition and to the same extent as its right of way and roadbed for said railroad up to the.day of June, 1909, a short time prior to the institution of this action, and in so doing said company exercised its right of election of the location and extent of its right of way at the place in question, and those claiming under said railroad company are estopped thereby from changing or widening said right of way.</p> <p>7. That the defendant was at the times hereinafter mentioned and is now in the possession of the right of way of the said Piedmont Railroad Oompauy adjacent to plaintiff’s land, as above described, and was operating its trains along and over the same, and at said times claimed, and claims now, to be the owner of the same under and as successor to the said Piedmont Railroad Company.</p> <p>8. That the plaintiff’s land adjoins the right of way in question on the east, extending along the same north a distance of about 290 feet, and extends east therefrom about 290 feet to a line running nearly parallel with said right of way, and fronts on Hendrix Street. That plaintiff’s dwelling, outbouses, and garden are located on tbe eastern part of said lot, leaving a vacant lot between that part of said lot occupied as aforesaid and the top of the cut, which is the eastern line of defendant’s right of way, of about 80 feet fronting on said Hendrix Street and 290 feet deep, which was sufficient in size to locate a dwelling upon and was a valuable piece of property.</p> <p>9. That on .. day of June, 1909, the defendant wrongfully lowered its roadbed and track along and adjacent to plaintiff’s property about 17 feet, and wrongfully and 'unlawfully entered upon and took possession óf a strip of plaintiff’s vacant lot above described, about 45 feet wide, extending along said right of way from Hendrix Street to the northern line of said lot, a distance of about 290 feet, and removed the dirt therefrom to a depth of from 10 to 12 feet, and is now in possession of same as a part of its railroad line.</p> <p>10. That the taking of plaintiff’s land as aforesaid was not necessary for the defendant’s lowering its roadbed or double tracking same, as the land occupied by defendant'.as its roadbed and right of way before taking the strip of the plaintiff’s land above mentioned was amply sufficient to have enabled it to have lowered its roadbed and double tracked same, if it decided so to do; and plaintiff alleges that defendant entered upon and took said strip of plaintiff’s land as aforesaid for the sole reason that it needed dirt to make fills along its alleged right of way one-half mile or more from plaintiff’s land, and for this reason defendant took said land, removed the dirt as aforesaid, and used same in making said fills as aforesaid.</p> <p>11. That as plaintiff is informed and believes, there were more than 6,000 cubic yards of the dirt wrongfully taken by the defendant from the plaintiff’s vacant lot as aforesaid, and same was reasonably worth the sum of 35 cents per cubic yard.</p> <p>12. That defendant operates along and over its track and roadbed a large number of trains daily, and that prior to the taking of plaintiff’s land and lowering its roadbed as aforesaid, the smoke and soot from defendant’s engines usually passed over plaintiff’s residence, but since the lowering of said track a large part of the smoke and soot therefrom passes into the plaintiff’s dwelling and porches, wbicb annoy and trouble tbe plaintiff and bis family, and also depreciates tbe value of said place as a residence.</p> <p>13. Tbat prior to tbe taking- of plaintiff’s property intersecting with Oburcb Street, crossing said railroad track at grade, and at tbe point of said crossing tbe defendant lowered its said track about 17 feet, thereby making it necessary and tbe duty of defendant to erect a bridge at said Hendrix Street across said railroad track. Tbat in constructing tbe same defendant bas negligently and wrongfully made abutments for tbe approaches to said bridge several feet higher than was necessary, by reason whereof tbe eastern approach to said bridge will have to be built so high tbat it will leave tbe remaining portion of plaintiff’s vacant lot several feet below the grade of said street, wbicb detracts from tbe appearance of tbe plaintiff’s property and makes it inaccessible, and bas thereby damaged same.</p> <p>14. Tbat by reason of the defendant’s having taken strip of plaintiff’s vacant lot, as hereinbefore stated, it bas destroyed tbe value of tbe remainder of said lot, as tbe remaining part thereof is too small for a building lot.</p> <p>15. Tbat by reason of tbe wrongful acts of defendant, as hereinbefore alleged, plaintiff bas been damaged to tbe amount of $2,000.</p> <p>Wherefore plaintiff prays for judgment against tbe defendant for $2,000 and costs, to be taxed by tbe clerk.</p> <p>DEED FOR RIGHT OF WAY TO PIEDMONT RAILROAD.</p> <p>Whereas tbe construction of tbe Piedmont Railroad will be of great importance to tbe district of country through which it will pass, and will, it is believed, add lüaterially to tbe value of tbe lands along tbe line wbicb may be adopted for tbe same, and tbe undersigned are anxious, as far as possible, to induce the construction of the work through their respective lands:</p> <p>Be it, therefore, known and declared 'by these presents tbat we whose names are hereunto subscribed, for and in consideration of tbe premises, and also of $1 to each of us in band paid by tbe Piedmont Railroad Company, tbe receipt of which is Hereby acknowledged, do. Hereby grant, bargain, sell, and convey to tbe said Piedmont Railroad Company all right, title, and claim to so much of our land as may be occupied by tbe said railroad, its banks, ditches, and works; and we do furthermore hereby release all claims for damages, whether on account of increased fencing or otherwise, which may be occasioned by the passage of the said railroad through our respective lands, provided that the said Piedmont Railroad be located on a route having one of its termini at Danville and the other of its termini at Greensboro.</p> <p>The defendant demurred as follows:</p> <p>1. For that it appears upon the face of the complaint that the defendant, under deed to the Piedmont Railroad Company, under whom it claims and derives its title from those under whom the plaintiff claims and derived his title, had a legal right to enter upon and take possession of the land involved in this action for the purpose for which it was taken, held, and used.</p> <p>2. For that it appears upon the face of the complaint that the smoke and soot which 'the plaintiff complains of were caused by the ordinary operations of trains over the defendant’s road, and the defendant being a common carrier, authorized by law to carry on the business of a common carrier, and it being its duty in the conduct of such business to operate trains over its road, it is not liable for damages resulting from the lawful performance of that duty.</p> <p>3. For that it appears upon the face of the complaint that under the deed from those under whom the plaintiff claims to the Piedmont Railroad Company, under which the defendant claims, the defendant had a legal right to place the abutments of the bridge so as to leave the plaintiff’s lot in the condition alleged in the complaint.</p> <p>The demurrer was overruled, and the defendant excepted and appealed.</p>

<p>1. Pleadings — Return Term — Criminal Courts — Ejectment—Defend-ant’s Failure to Give Bond — Answer Stricken Out — Judgment by Default — Interpretation of Statutes.</p> <p>Chapter 678, Laws 1909, permits process to be returnable and pleadings to. be filed at criminal terms of the court, and where a defendant in ejectment fails to file the undertaking required by Revisal, sec. 453, or procure leave to defend without bond (Revisal, 454), the court, at such term, may strike out the answer and render judgment by default.</p> <p>2. Judgments — Motions in Term — Notice.</p> <p>It is unnecessary to serve notice of a motion for a judgment made during a term of court at which such judgment may properly be rendered.</p> <p>3. Ejection — Pleadings—Verification—Undertaking — Judgments by Default — Interpretation of Statutes.</p> <p>Revisal, sec. 556 (4), construed- with subdivisions 1, 2, and 3, does not require that the complaint in an action of ejectment be verified for a judgment by default for failure of the defendant to give the bond required by section 453, when leave has not been given to defend without bond under section 454.</p> <p>4. Sams — Inquiry—Harmless Error.</p> <p>Where, in an action of ejectment, plaintiff has obtained a judgment for the failure of defendant to give the undertaking required by Revisal, sec. 453, the judgment is conclusive as to all matters therein determined; and where the judgment omits the inquiry as to damages, but is rendered only as to the plaintiff’s title or right of possession, the defendant cannot be heard to complain that a final judgment had been entered.</p> <p>Clark, C. J., dissenting.</p>

Appeal by defendant from Bragaw, J., at October Term, 1912, of CUMBERLAND. Ciyil action to recover damages for negligently setting fire to and burning tbe sawmill, kiln, etc., of plaintiffs company.

Appeal by defendant from Goohe, J., at November Term, 1912, of RowaN. Tliis action was brought to recover damages for the negligent killing of plaintiff’s intestate, Cicero L. Wyatt. The defendant’s car was proceeding north on its way from Salisbury to Spencer, running at the rate of about 12 to 15 miles an hour.

Appeal by defendant from Peebles, J., at January Term, 1913, of Duei-iaM. Civil action to recover penalty under Revisal, sec. 2631. Tbe following are tbe issues: 1. Did tbe defendant wrongfully and unlawfully fail and refuse to accept and transport tbe pea-vine bay, as is alleged in tbe complaint? Answer: Yes. 2. What penalty, if any, is tbe plaintiff entitled to recover? Answer: $650. From tbe judgment rendered, tbe defendant appealed.

<p>Appeal by plaintiff from 0. II. Allen, J., at September Term, 1912, of Forsyth.</p> <p>This is an action to recover upon a contract for support. The plaintiff alleges in her complaint:</p> <p>1. That she is the mother 'of the defendant J. W. Martin, and now an old woman, about 90 years old; that for some time prior to the year 1907 she and her husband were the owners of a tract of land in Davidson County, North Carolina, containing some 50 or 60 acres, and she and her husband, being old, conveyed it to the defendants on condition and for the consideration that they would support the said plaintiff and her husband, James Martin, as long as they should live; that the husband died in a few months thereafter, leaving the plaintiff him surviving.</p> <p>2. That on 1 January, 1907, the defendants entered into a bond with the plaintiff, in words and figures as follows:</p> <p>Nobth OaroliNA — Forsyth County. January 1, 1907.</p> <p>Know all men by these presents, that we, J. William Martin and wife, Eliza Martin, do hereby bind ourselves, our heirs, executors, and administrators, in the sum of ($1,000) one thousand dollars, to care and support of James Martin and Martha E. Martin, at our home during their lives, and that this shall be a first lien on the farm on which I now reside, containing 85 acres, adjoining Mrs. Reed, J. H. Willard, and others.</p> <p>His</p> <p>J. William X Martin.</p> <p>mark'</p> <p>Her</p> <p>Eliza X Martin.</p> <p>mark.</p> <p>Witness as to J. W. Martin: E. P. Heitman.</p> <p>That the private examination of the female defendant was taken and the said bond is recorded in Book 86 of Deeds, page 242, in the office of the Register of Deeds of Forsyth County.</p> <p>3. That the plaintiff resided with the defendants for about two years, but the conduct of the defendants towards the plaintiff became so intolerable that it was-impossible for her to live at the house of the defendants; that, among other things, the defendants failed to provide the proper food and clothing and care suitable for a person of plaintiff’s age and physical condition; neglected plaintiff; undertook to control and supervise her conduct; forbade her to visit her other children, and when she did go to visit another, defendants stated that they would not permit plaintiff to return to the home of the defendants; on account of which, and other things, the home of the defendants is an impossible place in which plaintiff may reside.</p> <p>4. That the value of the place given defendants was about $1,000, and they have sold said place and received the benefits arising therefrom, without reasonably complying with their agreement of support.</p> <p>5. That the said bond is, as stated therein, a lien for $1,000 on the home place of the defendants, located in Broadbay Township, Forsyth County, North Carolina, adjoining the lands of Mrs. Reed, <J. H. 'Willard, and others, and containing 85 acres, more or less, and more particularly described as follows :</p> <p>First Tract — Beginning at a stone on the south side of Randolph Road and C. Reed’s corner, running thence south with said Reed’s line 16.49 chains to a stone, C. Reed’s corner; thence east with said line 14.62 chains to a stone, Parnell’s corner; thence north with said .Parnell’s line 25.32 chains to a stone in the south side of Randolph Road; thence southwardly with the said road 16.95 chains to the beginning; containing 30 acres, more or less.</p> <p>Second Tract — Beginning at a stone in Parnell’s line, and runs north 19.90 chains to a stone in Willard’s line; thence north 86 west with said line 12.55 chains to a stone in said line; thence south 5.15 chains to a stone; thence north 86 west 956 chains to a stone in Glasscock’s line; thence south % west 25.25 chains to a stone, Reed’s corner; thence north 81 east 1.70 chains to a stone; thence northeastwardly with public road 16.95 chains to the beginning; containing 55 acres, more or less.</p> <p>6. That for about the past sixteen months plaintiff, on account of the conduct of the defendants, and - their failure to comply reasonably with the terms and conditions of said bond, has been forced to live with another son, and is in need of and, as she is informed, advised, and believes, entitled to receive from the defendants sufficient monthly funds to keep her in clothing, pay for medicine and medical care and attention and nursing while sick, and for board, all of which plaintiff alleges she is greatly in need of, and has been for some time, which plaintiff alleges should be $25 a month.”</p> <p>The defendants demurred as follows:</p> <p>“That the said complaint fails to state a cause of action against these defendants, or either of them, in that the bond, or obligation, which is set out in paragraph 2 of said complaint is not payable to the said plaintiff or to the said James Martin, and that they are advised and believe that the failure of said bond or obligation sued on to be payable to any person does not give the said Martha E. Martin, plaintiff, as aforesaid, the right to bring this action against these defendants.”</p> <p>His Honor sustained the demurrer and dismissed the action, and the plaintiff excepted and appealed.</p>

<p>Appeal by plaintiffs from 0. H. Allen, granting a restraining order 12 December, 1912; from Fobsyth.</p>

<p>Cities and Towns — Streets and Sidewalks — Negligence—Reasonable Care — Instructions—Appeal and Error.</p> <p>A city is required to maintain its streets and sidewalks in a reasonably safe condition for the safety of the public, and to exercise ordinary care and due diligence to see that they are so kept and maintained, and a charge which in effect requires the city to keep its streets and sidewalks in safe condition, and ■holds it responsible in damages to a pedestrian injured by a defect therein, without negligence on his part, makes the city insure or warrant the safe condition of its streets, and is Held for reversible error.</p>

<p>1. Notes — Defenses — Fraud and Misrepresentations — Warranty— Damages — Pleadings—Counterclaim.</p> <p>Tire defense to an action upon a note for fraud and misrepresentation is essentially different to that of breach of warranty, for in the latter case the instrument itself is not sought to be invalidated, and the remedy is for damages by way of counterclaim arising under the warranty.</p> <p>2. Notes — Warranty—Compromise — New Note — Consideration—Interpretation of Statutes.</p> <p>Where one of several makers of a .note agree with the payee that they shall be released from their obligations by giving a new note in a smaller sum, subject to the same conditions of warranty as the old one, the giving of a new note is valid as a compromise under the Revisal, sec. 859, and the warranty in the former transaction is a part of the consideration for the new one, and is enforcible.</p> <p>3. Notes — Contracts — Warranty, Breach of — Counterclaim — Evidence — Fraud and Misrepresentations.</p> <p>Where a note is given in the purchase of a horse, and in an action thereon the defense is set up that Toy a collateral written agreement the horse was warranted to be a reasonably sure foal getter, and if otherwise, the maker of the note was to deliver him to the payee in good condition and receive in return one of the same breed, etc., evidence only that the animal sold was not as represented in being a good foal getter is irrelevant upon the question of fraud in the procurement of the note; and is alone competent, when, properly pleaded, to show a breach of warranty that would entitle the defendant to recover damages upon his counterclaim.</p> <p>4. Notes — Holder in Due Course — Contracts—Warranty—Performances — Indorsements—Guarantor of Payment.</p> <p>Where a horse is sold upon the warranty that he is a reasonably sure foal getter, and if not as warranted, he was to be exchanged for one of like breed, etc., it is Held, in an action upon a note given for the horse, and held by one claiming to be a holder in due course, for value, that the maker of the note must show a refusal on the part of the seller of the horse to comply with the conditions of the warranty .in order to defeat a recovery thereunder, and this doctrine applies whether the plaintiff is an indorsee or a guarantor of payment.</p> <p>Walker, X, concurring in part; Allen, X, concurring in the opinion of Walker, X; Hoke, X, concurring in part.</p>

<p>Appeal by plaintiffs and defendant from Goohe, J., at Fall Term, 1912, of YadkiN.</p> <p>Civil action to restrain waste and remove cloud from plaintiff’s title, caused by a deed from J. N. Burcb and wife to P. C. Woodbouse and wife, M. J. Woodbouse. Tbe jury rendered tbeir verdict as follows:</p> <p>1. Was tbe deed executed by J. N. Burcb and wife to P. C. Woodbouse and wife, M. J. Woodbouse, for tbe purpose of partition of tbe lands of tbe said J. N. Burcb and M. J. Wood-bouse, and tbat consideration alone ? Answer: Yes.</p> <p>2. Has tbe defendant, P. 0. Woodbouse, since tbe death of bis wife, committed waste on said land? Answer: No.</p> <p>3. And if so, wbat damage bas tbe plaintiff sustained? Answer: .</p> <p>4. Is tbe plaintiffs’ cause of action barred by tbe statute of limitation? Answer: No.</p> <p>Judgment on verdict, and plaintiff and defendant excepted and appealed.</p>

Appeal by plaintiff from Allen, J., at October Term, 1912, of Caswell. Civil action for damages, beard upon demurrer ore berms to complaint, upon the ground that it fails to state a cause of action. The court sustained the demurrer and dismissed the action. The plaintiff appealed.

<p>Appeal by plaintiff from Bragaw, J., at December Term, 1912, Of RICHMOND.</p> <p>Issue of devisavit vel non as to tbe last will and testament of D. W. Watson, deceased.</p> <p>Propounders offered in evidence a paper-writing purporting to be tbe last will and testament of D. W. Watson, deceased, and to be signed at bottom and sealed by D. W. Watson, deceased, and to be witnessed as follows: “Test: W. I. Everett. W. T. Covington.” This paper as in the issue and proceedings below will be referred to as Exhibit A. This being- handed to the witness W. T. Covington, he testified thereto as follows: “That D. W. "Watson brought this paper, Exhibit A, into my office and told me that it was his will; that he wrote his name signed to the will; ‘That is my name/ and he asked me to witness it and sign my name as subscribing witness to Exhibit A. I signed my name where it appears on Exhibit A, in his presence. I knew Captain W. I. Everett, and know his handwriting. His name where it appears above mine on Exhibit A is in his own handwriting. W. I. Everett is dead. His name appeared above mine on Exhibit A. I cannot say whether his name appeared on the paper when I signed or not. I think Mr. Kelly was present when I signed the paper, but I am not positive about that.”</p> <p>Evidence was then offered of the death of W. I. Everett, and that his signature as witness to said will was in his own proper handwriting. Propounders then offered another paper-writing purporting to be an addition to the last will and testament of D. W. Watson of date 11 November, 1911, the same purporting to be signed by him and witnessed by A. W. Porter and W. M. Hale, 'and said witnesses, being sworn, testified to the due execution of said will and to their signatures as subscribing witnesses, etc. This paper-writing, referred to as Exhibit B, was in form as follows:</p> <p>NoRTI-I CAROLINA-RICHMOND COUNTY.</p> <p>I, Daniel W. Watson, of the aforesaid county and State, being of sound mind, do make and declare this addition to my last will and testament, and this addition is in no wise to interfere with former will:</p> <p>First. I give and devise to my beloved wife, Laura. Hinson Watson, one-half acre of land on which is now situated my gin-house, together with said ginhouse, all machinery, farming-implements, and farm produce that may belong to me at the time of my death, that may be on said half-acre of land. The said half-acre of land is situate on the left-hand side of the road leading from my present dwelling to the road from Rock-ingham to Mrs. Hattie Diggs’ place, and is known as the Sand Hill Road.</p> <p>Second. I hereby constitute and appoint my beloved wife, Laura Hinson Watson, my lawful executrix to all intents and purposes of this addition to my former will, according to the true meaning of the same, hut in no wise is my former will to be affected by this addition, but the said will to stand as first intended.</p> <p>In witness whereof I, the said Daniel W. Watson, do hereunto set my hand and seal, this the first day of November, 1911. D. W. WatsoN [seal].</p> <p>Signed, sealed, published, and declared by the said Daniel W. Watson to he an addition to his last will and testament, in presence of us, who at his request and in his j>resence (in the presence of each other) do subscribe our names as witnesses thereto.</p> <p>A. W. PORTER.</p> <p>W. M. Hale. .</p> <p>One of the witnesses to this will testified that when the same was executed D. W. Watson said that he had made a will already and did not want this in any way to interfere with his former will.</p> <p>Propounders then offered the records of probate court, showing the admission of Exhibit A will to probate on the testimony of W. I. Covington, the death of the witness W. I. Everett, proof that his signature as subscribing witness was in his own handwriting and on proof of the signature to handwriting of D. W. Watson. This, on objection, was excluded by the court, and propounders excepted.</p> <p>Propounders then offered D. E. Hinson as witness, who testified as follows: “I live in Rockingham. Mrs. Laura Hinson is my sister. She and Mr. Watson have been married something like twelve or thirteen years. I never saw the paper-writing marked Exhibit B but once up to the time of Mr. Watson’s death. Exhibit A was exhibited to me at my office at the livery stable. Mr. Watson came in and had this paper all fixed, and said, ‘Ed, your brother M. T. is dead’; and I said, ‘Yes; that is right.’ He came and gave me this paper that had M. T.’s name on it, and said, U want you to mark out M. T. and put D. D. there.’ I wrote the name and gave it back, and he took it and sealed it up and told me to keep it; that I had a safe place to keep it, and he did not. So I put it in my safe and kept it until he died. I got Exhibit B after Mr. Watson’s death. Mr. A. W. Porter told me he had some papers of Mr. Watson’s. I told him I would like to get them, and he gave them to me. After Mr. Watson’s death I gave the two papers to Major Shaw. He opened them and read them to me, and I found out what they were. Major Shaw brought the papers to the clerk’s office. They were probated before the clerk. Mr. Watson put Exhibit A in an envelope.”</p> <p>Issues were submitted to the jury as follows:</p> <p>1. Is the paper-writing propounded for probate, bearing date 27 January, 1903, purporting to be witnessed by W. I. Everett and W. T. Covington, being “Exhibit A” in evidence, the last will and testament of D. W. Watson, deceased, or any part thereof ?</p> <p>2. Is the paper-writing propounded for probate, bearing date 1 November, 1911, purporting to be witnessed by A. W. Porter and W. M. Hale, being Exhibit B in evidence, the last will and testament of D. W. Watson, deceased?</p> <p>The court charged the jury that if they believed the testimony to answer the first issue “No.”</p> <p>The jury rendered their verdict, answering first issue “No” and second issue “Yes.”</p> <p>Judgment on the verdict', and plaintiff excepted and appealed.</p>

Appeal by plaintiff from Whedbee, J., at July Special Term, 1912, of DURHAM. Civil action to recover damages by reason of an alleged nuisance in tbe construction and operation of tbe defendant’s plant.

<p>Appeal by defendant from GooTce, J., at February Term, 1913, of FORSYTH.</p>

Appeal by plaintiff from 0. PL. Allen, J., at October Term, 1912, of Caswell. Tbe plaintiff brings this action to recover damages caused by the wrongful conduct of the defendant, resulting in the death of the plaintiff’s intestate, Jennie Hood, his wife. At the time of the death of Jennie Hood she had made a will devising and bequeathing her property to Annie Land, and appointing her executrix of her will.

<p>Appeal by defendants from O. II. Allen, J., at September Term, 1912, of FoRsyth.</p>

Appeal by plaintiffs from Peebles, J., at April Term, 1912, of Cumberland. Civil action to set aside certain deeds and to recover one undivided seventh of a tract of land.

<p>Appeal by plaintiff from Peebles, J., at December Term, 1912, from Richmond.</p>

Aeeeal by plaintiff from Peebles, J., at> February Term, 1913, of Grahtille. This is a motion to set aside a judgment upon the ground of “mistake, inadvertence, surprise, or excusable neglect,” under Revisal, sec. 513. The facts are that plaintiff brought this action to November Term, 1910, for the recovery of a planing machine with its outfit, alleged to be unlawfully detained by defendant. He filed his complaint 10 January, 1911, and defendant answered 27 February, 1911.

<p>1. Drainage Districts — Constitutional Law.</p> <p>Chapter 442, Laws 1909, providing for the laying off of drainage districts, is constitutional and valid.</p> <p>2. Drainage Districts — instructions, How Construed — Benefits to the Proposed District — Health—Interpretation of Statutes.</p> <p>Where detached portions of a charge are erroneous, when considered alone, but correct when considered with the other parts, as a whole, the charge'will not be held for error; and when it appears, in proceedings to lay off a drainage district under chapter 442, Laws 1909, that the jury were instructed to consider “not only the increased facilities of the land for producing crops, but the benefit to the health of the people who live in the district,” it will not be construed as erroneous because other parts of the charge, taken singly, did not appear to confine the question of health to those living in the proposed district.</p> <p>3. Drainage Districts — Findings of Fact by Clerk — Sufficiency—Exceptions — Trial de Novo.</p> <p>On appeal from the clerk, proceedings to lay off a drainage district are heard cTe novo in the Superior Court, upon exceptions taken before the clerk, and only these exceptions may be considered (amendments to Drainage Act, sec. 3, ch. 67, Laws 1911), and it is sufficient that the clerk has found as a fact that the allegations set out in the petition are true, if these allegations are sufficient, and distinctly and clearly made.</p> <p>4. Drainage Districts — interpretation of Statutes — Repealing Clauses —Purview of Act.</p> <p>Chapter 20, Laws 1896, authorizing adjacent owners on Cold Water Creek to clean out and straighten the channel thereof, under a certain method, does not come within the purview of the Drainage District Act, eh. 442, Laws 1909, and hence the exception in the latter act as to “any local drainage law already enacted,” etc., does not apply.</p>

Appeau by plaintiff from 0. E. Allen, J., at December Term, 1912, of Forsyth. Civil action heard on motion to remove cause.

Appeal by defendant from 0. H. Allen, J., at December Term, 1912, of Forsyth. Civil action to recover damages for alleged negligence on part of defendant company, causing permanent physical injury to plaintiff. On the usual issues in such action there was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed.

Appeal by defendant from Daniels, J., at August Term, 1912, of CABARRUS. Civil action to recover $46.35, and interest, tried on appeal from a justice’s court. Tbe jury rendered tbe following verdict: “1. Is the defendant indebted to the plaintiff; if so, in what amount? Answer: Yes; $46.35, with interest from 30 September, 1907.” Judgment on the verdict, and the defendant excepted and appealed.

Appeal by defendant from Garter, Jat May Term, 1912, of ALAMANCE.

, at July Special Term, 1912, of HENDERSON. Tbis proceeding was commenced on 22 April, 1912, before tbe Clerk of tbe Superior Court of Henderson County.

Appeal by defendant from Bragaw, J., at March Term, 1912, of Camden. Civil action. A number of issues were submitted, but it is only necessary to set out two, viz.: 3d. Is the plaintiff the owner of the tract of land first described in the complaint as Lot No. 1 in the New Lebanon Division? Answer: Yes. 7th. Is the plaintiff the owner of the tract of land described in the complaint as Lot No. 4 in the New Lebanon Division?

<p>Bills and Notes — Conditional—Reference to Other Papers — Nonnegotiable — Equity—Interpretation of Statutes.</p> <p>Where a promissory note given for the purchase price of timber refers to a deed and recites that it is “subject to the provisions of said deed,” it is conditional in form, and being dependent in its provisions upon an outside paper, it is nonnegotiable and subject to tbe equities existing between tbe original parties, in tbe bands of a purchaser. Revisal, sec. 2151,</p>

<p>Appeal and Error — Two Appellants — When Two Records Are Unnecessary — Practice.</p> <p>Where there are two appeals by different parties in the same cause and on the same side, presenting exactly the same question, and they are not antagonistic to each other, only one record is required. Though sejmrate records are sent up, it is, however, immaterial except as to unnecessary expense.</p>

<p>1. Demurrer — Misjoinder—Multiplicity of Actions — Interpretation of Statutes.</p> <p>Where it is alleged that the officers and chief stockholders of a bank, in order to merge with another bank, procured the indorsement of the papers in bank by the plaintiffs upon the agreement that the defendants would also indorse them, all assuming a pro rata liability therein, and that the defendants delivered these papers, many of which were worthless, to the other bank for the purpose of merger, but without having indorsed them as agreed; that the plaintiffs have been forced by judgment to pay off some of these indorsed papers in a large amount: it is Held that a demurrer for misjoinder of parties and causes of action is bad; for the subject-matter of the action and the parties being the same, a multiplicity of suits was prevented. Revisnl, sec. 4G9 (2).</p> <p>2. Demurrer — Misjoinder—Same Subject-matter and Parties — Torts —Equity.</p> <p>Where the stockholders of a corporation sue its officers for damages for their mismanagement and negligence in accepting worthless paper, and inducing the plaintiffs to become indorsee thereon to their loss and damage, and in failing to indorse these papers themselves under an agreement to do so, the causes of action are properly joined, one sounding in tort and the other being to enforce an equitable right arising out of transactions connected with the same subject-matter. a</p> <p>3. Demurrer — Cause of Action — Misjoinder — Motion to Divide— Procedure.</p> <p>A demurrer for misjoinder of causes of action in a complaint is bad, the procedure being by motion to divide them.</p> <p>4. Demurrer — Good Faith — Answer Over — Procedure—Interpretation of Statutes.</p> <p>Where a demurrer to a complaint is interposed in good faith, and overruled, the defendant is entitled to answer over. Bevisal, sec. 506.</p>

Appeal by caveators from Daniels, J., at February Term, 1913, of ALEXANDER. A paper-writing purporting to be the last will and testament of M. Swaim was offered for probate before the Clerk of the Superior Court of Alexander County, and a caveat was filed thereto.

Appeal by plaintiff from Justice, J., at Fall Term, 1912, of Cleveland. Civil action to recover on a note an alleged balance of $638.31, executed by the Ottoway Furniture Company to plaintiff, with the other defendants as sureties.. The plea of statute of limitations was sustained, and plaintiff appealed.

Appeal by plaintiff from Webb, J-, 12 February, 1913; from CabaReus. Held: that this was not the case, but that Missouri E. Brown took such an estate under the will that she could, by her own deed, convey a good and indefeasible title in the lot which she had sold to the plaintiff. Judgment was entered accordingly, and plaintiff appealed. .

<p>Master and Servant — Negligence—Safe Place to Work — Cause Removed Since Injury — Contradictory Evidence — Instructions.</p> <p>The plaintiff was employed by the defendant to go upon a trestle of a railroad, which it was building, to dump dirt, and his evidence tended to show that while so engaged he went upon a plank, put there for the purpose, which gave way with him, and he thereby received, the injury complained of in his action to recover damages. There was also evidence that this plank was defective, and per contraand defendant resisted recovery on the ground of an accident: Held, evidence was competent that .the plank had been replaced and nailed down since the injury, as contradictory of the defendant’s contention that the injury could not have occurred as plaintiff claimed, and the court having restricted its application to this phase of the case, and excluded its consideration upon the issue as to negligence, in the charge to the jury, there was no error.</p>

, 28 January, 1913; from Mecklenbueg. Civil action to enjoin the issuance of 800 shares of stock, 400 of same being preferred and 400 common stock at par value, $100 per share, in a corporation known as the' Equitable Realty Company, involving also a change of name and amendment to charter of the company; heard on return to restraining order.

Appeal by plaintiff from Webb, J., at January Term, 1913, Of MECKLENBURG. It is alleged that Maggie J. Hartis was injured by the negligence of the defendant on 24 May, 1910, and soon thereafter the said Maggie J. Hartis and her husband commenced' an action against the defendant to recover damages for the injury. During the pendency of that action the deposition of the said Maggie J. Hartis was regularly taken and filed, and thereafter the said Maggie J. Hartis died.

<p>Character Witnesses — Impeaching Evidence — Admissibility.</p> <p>A witness introduced to impeach the character of a party who. has testified may only be asked as to the general character of that party by the one introducing him; but after affirmatively answering the question the witness may qualify his own testimony by stating that his knowledge thereof extends to certain localities and for certain stated qualities. Testimony as to specific acts is not admissible for, the purpose of impeachment of character of witness. The rule as to the admissibility of this character of evidence stated by Clark, C. J.</p>

Appeal by defendant from Daniels, J., at February Term, 1913, of Catawba. Civil action to recover on a note for $1,000, executed by P.'B. Fetzer, testator of defendant, beard on motion-to remove cause. Tbe action was instituted in Catawba County, returnable to February Term, 1913, commencing 3 February. Verified complaint was duly filed 11 December, 1912; verified answer to merits filed 5-February, 1913; forilial replication filed 8 February, 1913.

Appeal by defendants from 'Goolce, J., at September Term, 1912, of Stamxy: Civil action, brought to restrain defendants from proceeding with the construction of municipal waterworks in the town of Albemarle. Motion to nonsuit was overruled. Certain issues were submitted to a jury, and under the instructions of the court found for plaintiff.

<p>1. Estates — Deeds and Conveyances — Trusts and Trustees — Sales— Proceeds Held In Trust — Equity.</p> <p>Where an estate is granted for life, then to the children of the first taker, the children of such of them as may then be dead taking per stirpes, in trust to be held until the youngest child of the tenant for life shall become 21 years-old, after the death of the first taker, all the parties at interest being before the court, equity may decree a sale, subjecting the proceeds in the hands of the trustee to the conditions originally imposed, and the purchaser will acquire a perfect title. Springs v. Seott, 132 N. C., 563, cited and applied.</p> <p>2. Estates — Deeds and Conveyances — Restraint Upon Alienation— Sales — Proceeds—Trusts and Trustees — Partition.</p> <p>An estate in remainder, with the provision “that no partition of said land or sale thereof shall be made by any” of the remain-dermen until- the youngest child of the tenant for life “shall arrive at the age of 21 years”: 'Held,, that part of the provision prohibiting a sale, regarded as a restraint upon alienating, is void; nor is that part which prohibits a partition of the lands violated by a decree of court for a sale which further orders that the trustee retain the whole proceeds, subject to the terms and conditions of the written instrument, for reinvestment.</p> <p>3. Estates in Remainder — Deeds and Conveyances — Trusts and Trustees — Changed Conditions — Hardship on Beneficiaries— Equity.</p> <p>Where the donor has created an estate in remainder for the benefit of his grandchildren, etc., to be held in trust until the youngest one shall have become 21 years of age, and it is made to appear to the court that to preserve the .estate in its then condition, owing to changed conditions, would work a hardship upon the beneficiaries, and that to preserve their interest a sale should be decreed and the proceeds invested and held subject to the terms imposed: Semble, a court of equity may act .accordingly, and the purchaser at the sale will acquire a good title.</p>

Appeal by plaintiff from Lyon, J., at September Term, 1912, of Wilkes. This is an action for tbe recovery of 23 acres of land. The defendants are Mary Johnson and her children, Thomas Johnson and Walter Johnson. If Mary Johnson can successfully defend the action, plaintiff cannot recover against her code-fendants, her children, as they are in possession under her.

<p>Appeal by plaintiff from Lyon, J., judgment rendered at chambers, 24 January, 1913; from McDowell.</p> <p>Petition for partition of a certain tract of land of 50 acres in Henderson County, removed to and tried in McDowell County because of the disqualification of the clerk of the former county.</p> <p>The clerk referred the cause to a referee, who heard the cause, reported the evidence, and found as a fact that partition cannot be made without serious injustice to the various and numerous owners, and that the interest of all parties will be greatly promoted by a sale of the entire tract for partition.</p> <p>There are a large number of defendants, all of whom consent to a sale, except the heirs of W. T. Johnson, whose names are set out in their joint answer on pages 12 and 13 of the record.</p> <p>These defendants duly excepted to the order of reference. They also excepted to the report of the referee, and demanded a jury trial in these words: “that the question of’whether the said land can be actually divided or not be submitted to a jury.”</p> <p>Lyon, judge, granted defendants’ motion and directed that the cause be tried by a jury upon the issues raised, by the pleadings.</p> <p>Plaintiff excepts and appeals.</p>

<p>Cities and Towns — Sewerage—Private System — Injunction.</p> <p>This case, involving the right of an injunction against a city-in constructing a sewerage system without first acquiring that of the plaintiff existing within the corporate limits of the town, is controlled by the decision in Asbury v. Albemw'le, ante, p. 247.</p> <p>Hoke and Allen, JJ., dissenting.</p>

Appeal by defendant from Adams, J., at August Term, 1912, of Rutherford. Civil action to recover damages for wrongfully ponding water on plaintiff’s land. There was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed.

Appeal by defendant from Justice, J., at Eebruary Term, 1912, of Rutheeeohd. This is an action to recover damages for wrongfully ejecting the plaintiff from the defendant’s train.

<p>Appeal from Adams, J., at March Term, 1909, of Yancey.</p>

Appeal by defendants from restraining order issued by Lyon, J., at chambers, 7 March, 1913; from HeNDEesoN. Appeal by defendants from an order continuing a restraining order to the final hearing.

Appeal by defendant from Lyon, J., at January Term, 1913, of McDowell. Civil action to recover damages for alleged breach of contract. Yerdict and judgment for plaintiff, and defendant excepted and appealed.

<p>Appeal by plaintiff from Lyon, J., at.November Term, 1912, of Caldwell.</p> <p>This action was brought to set aside, a compromise and settlement between the plaintiff and the defendant J. P. Rabb, made on 29 December, 1909. Plaintiff, during the years 1904, 1905, 1906, and 1907, was engaged in the lumber business, of which I. E. Atkinson, the other defendant, was its manager at Lenoir, N. C. The defendant Rabb cut, sold, and delivered to the plaintiff at Morganton and other points a large quantity of lj.im.ber, for which the plaintiff paid him from time to time. At the end of that period the books of the plaintiff showed that the plaintiff had overpaid Rabb for lumber so cut and delivered, in the sum of $4,354.82. Plaintiff alleged and offered proof to show that, while this was the apparent amount due by Rabb, he had in fact received a large payment or credit for lumber which had not been delivered, and the real balance should be $10,900, instead of $4,354.82, and in addition to this amount thus owing by Rabb to the plaintiff, the latter paid for him four certain notes for the aggregate amount of $1,900, which was not charged on its books against him. Plaintiff further alleges that these items were omitted from the books by reason of fraudulent collusion between Atkinson and Rabb, or by mistake of the parties. It then appears that, on 29 December, 1909, plaintiff and defendant Rabb entered into an agreement for a settlement, by which certain timber was conveyed to J. H. Beall, as trustee, to be sold and the proceeds of sale, together with any cash paid by Rabb, to be applied to the liquidation of Rabb’s debt to the plaintiff. This agreement was made for the purpose of “adjusting and settling” the account between the plaintiff and Rabb. Plaintiff alleges that, at the time this agreement was entered into by the parties, it was totally ignorant of the fact that the lumber on the yard at Morganton had been delivered by Rabb, under its contract with him, or that Rabb owed the company a much larger amount than the balance of $4,354.82 recited in the compromise agreement. That these facts were only known to Rabb and fraudulently concealed by him from the plaintiff, whereby it was made to convey its own property for the payment of a debt due by Rabb to it, and that Rabb otherwise suppressed the true facts for the purpose of obtaining an unfair advantage of the plaintiff. Issues were submitted, and upon them the jury returned the following verdict:</p> <p>1. Did the plaintiff company, at various times prior to 29 December, 1909, advance to .the defendant J. P. Rabb money to be used by him in purchasing lumber and timber to be manufactured into lumber by him for the said lumber company? Answer: “Yes.”</p> <p>2. Did the plaintiff and defendant, by contract entered into between them on 29 December, 1909, make a full and final settlement of all matters of account existing between them, growing out of their lumber transactions ? Ariswer: “Yes.”</p> <p>3. Did the defendant Rabb, at the time of making the contract of 29 December, 1909, fraudulently suppress or conceal from plaintiff facts within his knowledge as to the true status of the account between them? Answer: “No.”</p> <p>4. If so, was tbe plaintiff thereby misled to its injury? (No answer.)</p> <p>5. Was said contract entered into by mutual mistake as to tbe true status of tbe account? Answer: “No.”</p> <p>6. Is tbe defendant Rabb indebted to tbe plaintiff; if so, in wbat amount? (No answer.)</p> <p>7. Is tbe plaintiff's cause of action barred by tbe statute of limitations? Answer: “No.”</p> <p>In tbe verdict proper, tbe answer-to tbe first issue is simply “Yes,” while tbe recital of tbe verdict in tbe judgment of tbe court states that it was “Yes, but not as agent.” But this discrepancy is not considered materiál in tbe view we now take of tbe case. By tbe contract witb Rabb for cutting tbe timber and delivering tbe lumber, it is provided that tbe lumber shall be considered as delivered and shall become tbe property of the lumber company when it is piled on tbe yard.</p> <p>At tbe close of tbe evidence tbe court ordered a nonsuit as to Atkinson, and tbe ease proceeded, as to Rabb witb tbe result above stated. Judgment was entered upon tbe verdict, and plaintiff having duly excepted to certain rulings, appealed to this Court.</p>

Appeal by defendant from Ferguson, J., at December Special Term, 1912, of Ruthekeokd. Tbis is an-action to recover a stock of goods, tbe plaintiffs claiming ownership under a chattel mortgage executed by the defendant J. W. Taylor, on 25 -January, 1910, to secure a note of $100 due 3 March, 1910, in the form prescribed by section 1039 of the Revisal.

<p>1. Street Railways — Quasi-public Corporations — Private Business— Condemnation — Easements.</p> <p>Where a corporation is authorized to conduct the guasi-public business of operating a street railway, it may exercise the right of eminent domain in respect to this business given to it by its charter and Revisal, secs. 1138, 2575, notwithstanding it is also authorized to conduct business of a private nature. ,</p> <p>2. Same — Petition—Presumption of Good Faith — Use for Private Purposes — Remedies—Quo Warranto.</p> <p>• Where an .electric street railway company, also authorized to conduct business of a private nature, sets forth in its petition to condemn lands that it desires the lands in connection with its works for production of power “to generate electricity for the use and benefit of the public,” and it does not appear that the lands are to he used for other purposes, it will not be presumed that the corporation is acting in bad faith; and should'it after-wards appear that the land thus acquired was for private purpose, the remedy would be by quo warranto, etc.</p> <p>3. Street Railways — Radius of Operation — Interstate Connections— Charter Rights — Interpretation of Statutes.</p> <p>A corporation chartered under Revisal, 1138, may operate a “street railway,” which includes railways operated by steam or electricity, between points in the same municipality, or between points in different municipalities within a radius of 59 miles, and may haul and deliver freight, etc.; and a violation of its charter is not effected by the fact that the railway thus operated interchanges traffic with other carriers doing an interstate business.</p> <p>4. Street Railways — Condemnation — ■ Petition — '“Commercial Railways” — “Words and Phrases” — Private Purposes.</p> <p>A quasi-public corporation operating a street railway, also having the authority to engage In business of a private nature, in its petition to condemn land stated that the land was to be used in generating power for public purposes, etc.: Held, the use of the word “commercial railway” in the petition did not indicate that the land was to be used for private purposes, for the company engages in commerce when it carries articles of merchandise for the public. • '</p>

<p>Appeai, by plaintiff from Justice, J., at September Term, 1912, of Meoexenbueg.</p> <p>Civil- action tried upon these issues:</p> <p>1. Was the feme plaintiff, Sallie R. Herndon, injured by the negligence of defendant, as alleged in the complaint ?' Answer: Yes.</p> <p>2. What damages are the plaintiffs entitled to recover of the defendant ? Answer : $500.</p> <p>From the judgment rendered, plaintiff appealed.</p>

, at November Term, 1912, of Mitchell. Civil action. On the trial it was made to appear that, heretofore, plaintiffs and defendants, other than Benjamin Ald-ridge, as children and heirs at law of D. S. Clarke, deceased, had instituted suit for partition of certain lands in said county. Owing to the existence of equities affecting the title, and not relevant to the present inquiry, the cause was brought to Superior Court in term.

Appeal by defendant from Lyon, J., at January Special Term, 1913, of New HaNovee. TJhis action is to recover damages for the wrongful and malicious cutting out of the plaintiff’s telephone. The facts are stated in the report of the former appeal in the same action, 157 N. C., 21.

<p>Appeal by defendant from Justice, J., at March Term, 1912,' OÍ IiENOIR.</p>

Appeal by defendant from Daniels, J., at January Term, 1913, of Wilkes. Civil action for damages for a personal injury to a railroad employee, tried upon these issues: 1. Was the plaintiff injured by the negligence of the defendant? A. Yes. 2. t)id the plaintiff by his own negligence contribute to his own injury? A. Yes. 3. Did the plaintiff execute the release offered in evidence by the defendant? A. Yes. 4.

Appeal by defendants from Foush&e, J., at November Term, 1912, of BuNCombe, Civil action in nature of creditor’s bill.

Appeal by defendant from Long, J., at August Term, 1912, of TRANSYLVANIA. Civil action, tried upon these issues: 1. Did the defendant ÜVL W. Galloway unlawfully entice tbe plaintiff's wife from Mm and unlawfully and licentiously debauch and carnally know her, as alleged in the complaint? Answer: Yes. 2. What damages, if any, has the plaintiff sustained by reason of the defendant’s alleged wrongful acts? Answer: Pive hundred dollars ($500).

Appeal by defendants from Ferguson, J., at November Term, 1912, of Wake. Civil action to obtain a permanent injunction. The action was instituted by plaintiff as stockholder of the Norfolk Southern Railroad, alleged and, for the purposes of this action, admitted to be a corporation of the State of Virginia, and certain directors of said company, and also five North Carolina railroad corporations operating under charters of this State and having their properties here.

Appeal by plaintiff and Macon County Land Company from Lane, J., at Spring Term, 1912, of MacoN. This action was brought to recover for a breach of a covenant of seizin, contained in a deed dated 23 April, 1909, and executed by Henry Stewart, Sr., and wife, Oassie Stewart, and Henry Stewart, Jr., and wife, Lula Stewart, to J. M. Burns, intestate of the plaintiff.

■Appeal by plaintiff from Long, J., at October Term, 1912, of SwaiN. This is a motion, to remove tbe' action from tbe Superior Court of Swain County to tbe Federal Court upon tbe ground tbat tbe defendant is a Virginia corporation. Tbe motion was allowed, and tbe plaintiff excepted and appealed.

Appeal by defendants from Adams, J., at May Term, 1912, of Caldwell.

Appeal by defendant from Peebles, J., at January Term, 1912, of GutleoRD. Civil action, tried upon these issues: 1. Did the defendant L. S. MacEnaney, while acting, as general agent of the plaintiff, collect and receive as such agent for and on behalf of the plaintiff the sum of $5,007.21 between the first day of February, 1909, and the first ‘day of February, 1910, and fraudulently convert the same to his own use, as alleged in the complaint? Answer: Yes. 2.

<p>Appeal by defendant from Fergusop, J., at May Term, 1912, of JACKSON.</p> <p>Civil action to recover damages for personal injuries.</p> <p>There was allegation, with evidence on the part of plaintiff tending to show that on 17 March, 1910, plaintiff, in the course of his duty as an employee of defendant, was engaged in operating a dump-car over defendant’s tramroad, and received serious physical injuries by reason of a defective brake and brake rod on said car, and that the company had been notified that said brake and rod, etc., were defective and likely to cause injury.</p> <p>There was evidence on the part of defendant tending to show that plaintiff, at the time, was doing the work by contract, and was charged with the duty of keeping the tools and implements in proper repair, and, further, that plaintiff had assumed the risk of the alleged defects, and, further, that he was guilty of contributory negligence in the way he did the work and operated the car.</p> <p>On issues submitted, there was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed.</p>

<p>1. Issues Submitted — Sufficiency.</p> <p>The one issue submitted to the jury in this- action for breach of contract for the sale, cutting, and delivery of lumber, to wit, “Are the defendants indebted to the plaintiff, and if so, in what amount?” embraced every issuable fact, and enabled the appellant to present fully its side of the case to the jury, and was sufficient; and it is Held, up error to reject numerous issues ■ offered which would have tended to great prolixity.</p> <p>2. Contracts, Interpretation of — Sale—Security for Advancements.</p> <p>' Where a written contract expresses upon its face that it is a sale of lumber upon pertain lands, which the vendee agreed to cut and deliver to the vendor, the latter to make payments in advance thereon, it cannot be construed that the conveyance was merely to secure the advancements agreed to be made.</p> <p>3. Contracts, Breach of — Sale and Delivery — Lumber—Measure of Damages.</p> <p>Upon the breach of contract by the vendor for the sale and delivery of lumber, the measure of damages to the vendee is the difference between the price he had contracted for and the market value at the time aud place fixed for delivery, such damages not being remote or speculative, but reasonably within the contemplation of the parties when entering into the agreement.</p>

Appeal by plaintiff from Long, J., at Pall Term, 1912, of MacoN. Tbis is an action brought by A. I. Anderson to recover a tract of land, and damages for trespasses alleged to have been committed thereon. The plaintiff introduced State Grant No. 2596 to Jacob Shope, recorded in Book “J,” page 290, dated 25 January, 1862, and recorded 2 December, 1862!

Appeal by interpleader from Peebles, J., at January Term, 1913, of Guilford. Civil action, tried upon these issues: 1. Is the Elkhorn Bank and Trust Company the owner and entitled to the possession of the property in controversy? Answer: No. 2. What damage, if any, is the plaintiff entitled to recover of J. D. Spragins, defendant? Answer: One thousand four hundred sixty-eight dollars and forty-four cents ($1,468.44), with interest from 31 October, 1910. 3.

Appeal by defendant from Daniels, Jat November Term, 1912, of Edgecombe. Civil action to recover damages caused by alleged nuisance.

Appeal by defendant from Ferguson, J., at October Term, 1912, of Wake. This is an action brought under the Federal Employers’ Liability Act to recover damages for injury to the plaintiff’s eye, caused by the explosion of a water glass on a locomotive engine. The plaintiff, at the time of the injury, had been employed by the defendant as engineer for a period of six years, and as fireman for three or four years prior to his promotion.

<p>Contract — Breach—Measure of Damages — Evidence.</p> <p>In this action for damages for breach of contract, it is held that the evidence was sufficiently definite to be submitted to the jury upon the admeasurement of damages.</p>

Appeal by defendant from order in habeas corpus proceedings rendered by Carter, J., at chambers, 27 December, 1912; from BuNCombe. . Tbe facts are stated in tbe opinion of Mr. Justice Brown.

Appeal by defendant from Lyon, J., at November Term, 1911, of Caldwell. Civil action to recover land.

Appeal by plaintiff from Bragcm, J., at January Term, 1913, of Buitcombe. Action upon promissory notes. The evidence tended to slow that plaintiffs, at the request of defendants, installed a heating plant in their residence for the price of $684. When the work was completed, 10 January, 1911, the defendant A. H. McCormick gave to plaintiffs his three promissory notes, each in the sum of $288, and due, respectively, thirty, sixty, and ninety days after their date.

Appeal by plaintiff, from RaNdolph, beard hy-Long, J., at chambers, 26 April, 1913, who refused to continue a restraining order to the bearing. Tbis is an action brought by the plaintiff, a resident taxpayer of Liberty School District in Randolph County, to restrain the issuance and sale of the bonds of said district, the defendants having prepared said bonds for issuance and offered the same for sale.

Appeal by defendant petitioner from Peebles,' Jat February Term, 1912, of Guileoed. Civil action.

Appeal by defendant from Garter, J., at September Term, 1912, of New Hanover. This action was brought to recover damages for the failure to deliver certain goods bought by plaintiff from defendant in New York, which was also the place of delivery fixed by the contract of sale.

<p>Appeal by defendants .from Ferguson, J., at May Term, 1912, of SaMpson.</p>

<p>Appeal by defendant from Webb, J., at January Term, 1913, of Mecklenburg.</p>

<p>Appeal by plaintiff from Oline, J., at September Term, 1912, of GrREENE.</p>

Appeal by plaintiff from Foushee, J., at March Term; 1912, of Carteret. This action was commenced on 5 November, 1908, to-recover certain personal property, of which the plaintiff claims to be the owner under a chattel mortgage. On the same day property was seized under proceedings in claim and delivery issued in the action, which was thereafter delivered to the plaintiff, upon the defendants failing to give the undertaking required by the statute.

, at February Term, 1913, of WASHINGTON. Civil action for trespass, quare clausum fregit. On issues submitted, the jury rendered the following verdict: 1. Are the plaintiffs the owners of the swamp,land described in the court map as “land in controversy” within the lines of T, X, V, U, and east of the line 8, 9 ? Answer: Tes. 2. If so, did ’ defendant trespass on said lands ? Answer: Yes. 3. If so, is plaintiff’s claim for damages barred by statute, as alleged? Answer: No. 4.

<p>Appeal and Error — Evidence in Narrative — Waiver of Parties.</p> <p>The requirements of the rule of the Supreme Court, that the evidence must appear in the case on appeal in. narrative form, cannot be waived by the parties.</p>

, at September Term, 1912, of Greene. Issue of devisavit ml non on tbe last will and testament of J. M. Patrick, deceased. On tbe issue submitted, tbe jury rendered tbe following verdict: “Is tbe paper-writing propounded, and every part thereof, tbe last will and testament of J. M. Patrick, deceased? Answer : Yes.” Judgment on the verdict, and caveators excepted and appealed..

<p>Appeal by plaintiff from Whedbee, J., at February Term, 1913, of RowaN.</p>

<p>1. Claim and Delivery — Replevy—Final Judgment — Return of Property — Measure of Damages.</p> <p>Where the recovery of personal property is sought, with the ancillary remedy of claim and delivery, and the defendant has replevied the property and judgment has been finally rendered in the plaintiff’s favor, it is proper for the judgment to require the return of the property, if to be had, and, if not, for its value as assessed by the jury, with damages for its detention. Re-visal, sec. 570.</p> <p>2. Issues.</p> <p>Where the issues submitted fully cover the issues tendered, it is not error for the trial judge to refuse to submit the -latter.</p> <p>3. Appeal and Error — Instructions—“Broadside” Exceptions.</p> <p>Unless an exception to an instruction given by the trial court specify the errors therein, it will not be considered on appeal.</p> <p>4. Claim and Delivery — Judgments — Costs and Expenses — Agreement of Parties — Appeal and Error.</p> <p>Where the defendant in claim and delivery of .crops has re-plevied the property, and the plaintiff has recovered final judgment, an additional item of expense or cost allowed by consent to the plaintiff will be held as binding upon the parties on appeal.</p>

■Held, this case presented only issues of fact, determined by the verdict. Appeal by defendants from íyon, J., at Fall Term, 1912, of ALEXANDER. Held: this case presented only issues of fact, determined by the verdict. Appeal by defendants from íyon, J., at Fall Term, 1912, of ALEXANDER.

Appeal by defendants from Webb, J., at Spring Term, 1912, of Tyrrell. This is an action to recover damages for cutting timber on a strip of land, claimed by tbe plaintiff to be a part of tbe Clayton tract of land. Tbe defendants admit that tbe plaintiffs are tbe owners of tbe Clayton tract, but they deny that tbe land in controversy is a part of that tract. Tbe Belgrade and Holly Grove tracts of land adjoin tbe Clayton tract.

Appeal bj plaintiff from Lane, J., at Spring Term, 1912, of CilEROKEE. Civil action tried upon this.issue: (1) 'Us tbe land claimed by plaintiffs, Tract No. 1949, located as shown on the plat, and as contended by plaintiffs ? Answer: Yes.” From the judgment rendered, defendant appealed.

<p>Appeal by caveator from 0. H. Allen, J., at July Term, 1912, of Ashe.</p>

Appeal by plaintiff from Long, J., at the October Term, 1912, of SWAIN. The appellee moves to dismiss the appeal, or to affirm the judgment, for that the evidence in the case on appeal is not stated in narrative form, but by question and answer. An inspection of the record discloses that the evidence, as taken by the stenographer, by question and answer, is made a part of the case, but that this was done by order of the j’udge.

<p>íÍppeal by defendant from Lane, J., at Spring Term, 1912, Of CHEROKEE.</p> <p>Civil action.</p> <p>Tbe plaintiff recovered judgment, and the defendant appealed.</p>

, at September Term, 1912, of Pasqtto-TANIC. Tlie prisoner was indicted for tbe murder of Oliver Layden, and was convicted of murder in tbe second degree. 'Tbe testimony tended conclusively to sbow tbat tbe defendant bad committed tbe murder. Oliver Layden left bis borne at 4 o’clock on tbe morning of 11 July, 1912, stating to bis mother tbat be was going to Elizabeth City to have bis watch mended, and never returned to bis home.

Appeal by defendant from Gime, J., at January Term, 1913, Of FRANKLIN. The prisoner was indicted for the murder of one Will Clifton, and co'nvieted of murder in the second degree. From the judgment rendered,.he appealed. The only question presented by the appeal is as to the legal sufficiency of the evidence. This .question was presented by a prayer for instruction that, upon the whole evidence, it is the duty of the jury to render a verdict of not guilty.

Appeal by tbe State from Foushee, J., at February Term, 1912, of CraveN. The three defendants, Mutual Aid Banking Company, John H. Fisher, -and A. Hatke, were indicted in the court belo,w for unlawfully selling liquor, the indictment containing two counts, one for selling intoxicating liquor to a person to the jurors unknown, and the other for selling such liquor to Carl Spencer, a person under the .age of 21 years.

, at Fall Term, 1912, of Hyde. Indictment for larceny. Among other things, the court charged the jury as follows: “The law is that whenever a person is found in possession of property which has been stolen and recently after the theft, the law presumes that the person so found in possession is the one who has stolen the property, and this presumption is' strong or weak according to the length of time which has passed between the time of the stealing and the time the said…

, at January Term, 1912,'of FeaNK-LIN. The defendant was indicted for violating chapter 445, Laws of 1909, regulating the use of public highways by motor vehicles. From the verdict of guilty and the judgment, thereon, the defendant appealed.

<p>Appeal by defendant from Cline, J., at August Term, 1912, Of FRANKLIN.</p>

<p>1. Appeal and Error — Failure to Work Roads — Judgments—Cost. .</p> <p>Proceedings for failure to work the public roads are of a civil nature, from which an appeal lies in favor of the prosecutor, who has been taxed with costs.</p> <p>2. Same — Presumptions—Evidence.</p> <p>Where the Superior Court affirms the judgment of a justice of the peace in proceedings for failure to work the public roads, and an appeal is taken to the Supreme Court, without a statement of the ease on appeal' by the prosecutor, who has been taxed with the costs, the presumption is in favor of the judgment appealed from; and as the findings of fact of the Superior Court judge are conclusive, if there is evidence to support them, it must be shown by the 'appellant that there was no such evidence.</p> <p>3. Appeal and Error — Justice’s Court — Failure to Work Roads— Costs — Superior Court — Facts Reviewed.</p> <p>On appeal from the judgment of a justice of the peace taxing the prosecutor with costs, in proceedings for failure to work the public roads, the findings of fact of the justice are reviewable by the Superior Court judge.</p> <p>4. Appeal and Error — Superior Court — Failure to Work Roads— Judgment — Costs—Affirmance of Findings — Presumptions.</p> <p>Where in proceedings for failure to work the public roads, the Superior Court judge affirms the judgment rendered before a justice of the peace in the defendant’s favor, it is an approval of the ■ findings of fact as well as the conclusions of law; and where the justice of the pease has taxed the prosecutor with-costs upon findings that there was no reasonable ground for the prosecution, Or that it was not required by the public interest, or that the prosecution was frivolous or malicious, it is not necessary that the Superior Cburt judge restate these findings in affirming the judgment.</p>

, at August Term, 1912, of Wayne. Indictment for murder of one Ben. Coley. Prisoner was convicted of manslaughter and from judgment on the verdict appealed.

<p>1. Elections — Public Offices — Disqualifications to Office — Next Highest in Votes — Vacancy in Office — Appointive Power.</p> <p>The one receiving the next highest number of votes for a public office at an election held by the people, is not elected to fill that office because of the ineligibility of the one receiving the highest number.</p> <p>2. Public Offices — Qualifications — Constitutional Law — Legislative Powers— Recorders’ Courts — Attorney.</p> <p>Tbe Constitution of North Carolina,' Art. YI, provides who shall he voters, and by section 7 thereof, that “every voter in North Carolina, except in this article disqualified, shall be eligible to office,” and the Legislature, cannot add to the constitutional disqualifications to hold office by requiring candidates for the position of recorder in a municipal court to be “a licensed attorney at law.” The difference between an “assurance” and a “qualification” to office pointed out' and discussed by .Clark, C. J.</p>

Appeal by defendant from Cooke, J., at tbe Spring Term, 1912, of FbaNkliN. Tbe defendant is indicted for selling one pint of spirituous liquor on or about 15 November, 1911, to B. H. Meadows. It was admitted on tbe trial tbat tbe defendant bad been acquitted at a prior term of court upon an indictment for selling one pint of spirituous liquor to B. H. Meadows on or about 5 December, 1911. B. II.

<p>Appeal by defendant from Peebles, J., at July Term, 1912, Of UNION.</p>

<p>Appeal by defendant from Peebles, J., at November Term, 1912, of UNION.</p> <p>Tils was an indictment for murder. At tbe commencement of tbe trial, tbe solicitor stated that be would,not ask for a verdict of murder in tbe first degree, but for murder in tbe second degree or manslaughter, as tbe jury might find tbe facts to be. The defendant admitted killing the deceased with a deadly weapon, but pleaded that the killing was done in the necessary defense of himself, his-family, and his habitation.</p> <p>The defendant testified in his own behalf as follows: “My name is J. Moore Gray. I am 57 years old. I am defendant in this case. Deceased was killed at my house on the night of Saturday, 28 September. I had been at work.that day at Mr. Myers’ lumber shop. I went home about dark, and went to bed between 9 and 10 o’clock. My wife, my two daughters, Minnie Gray and Ethel Knight, were there. My two little girls, Belle and Lila, 5 and 7 years old, were there. Mr. William Tarlton was there, too. He had come to call on my daughter Minnie. Deceased and three other men came to my door between 11 and 12 o’clock. I have since learned that the other three men were' Glenn Wolfe, Earl Helms, and John Wrest. They came to the .door and tried to get in. They began cursing and kicking at the door. Minnie came and woke me up. She said get up, that there were some men trying to break in. I got. up and started to the door. I could see deceased through the glass of the front dooj.’.. He was taller than the rest and had a rag tied around his head. As I stepped out into the hall, I saw the flash of a pistol and heard it shoot. Deceased shot the pistol. I could see it in his hand. I went to the door and told the men to leave. I had no gun at that time. Deceased said that he was coming in. I .said go on'away. He said, ‘Stick your old soap gourd out here, and I’ll put light holes through it.’ He said, ‘G— d— you, I’m coming in there after you.’ He had been kicking at the door. He was out there cursing. He said, £I’m coming in at the G— d— window.’ He ran towards the window in direction of Charlotte, and I heard glass fall. Some of my folks pushed bed against window. He said, ‘G— d— you, you have darkened that hole, but I’ll come in another.’ He then started towards the other window, the one towards Monroe. As he passed the front door he kicked it. I had stepped back and got my shotgun when he went to kick out the window toward Charlotte. He then went to the other window (towards Monroe) and was raising his foot to kick it out, and I threw up my gun and shot. I didn’t take aim. I cracked front door open to sboot. He was cursing and raising- bis foot to kick out the window when I shot. This was the window on the east end of porch. I had no ill feeling against deceased. I did not know him, and had never seen him before. I shot him to keep him from coining in my house and killing me. He was out there cursing and swearing that he was coming in, and was going to shoot light holes through my head if I poked it out. There were three other men with him. My little children were crying and screaming. I had ordered these men to leave a number of times. I asked them to leave before I got the gun. I was afraid they would kill me or some of my folks, or do us some bad harm. I was not mad at deceased. I was fraid of him and the other men with him. I saw four men standing at the door when I got up. I could tell deceased was the man doing the cursing, for he was taller than the rest and had a rag tied around his head. Deceased was not running when I shot. He was raising his foot to kick out the window. I did not shoot deceased because I was mad. ,1 was too scared to be mad. After I shot I went back in the front room. I loaded my gun and laid it on the bed. The other fellows ran when I shot, but I didn’t know but that they would come back and try to do something to me. I have never been in court before in my life.”</p> <p>There was -other evidence corroborating the defendant, and evidence on the part of the State contradicting him.</p> <p>The defendant, among other things, requested his Honor to charge the jury as follows: “If the jury find from the evidence that the defendant shot the deceased while the deceased was manifestly intending and endeavoring, in a violent manner, to enter the habitation of defendant, for the purpose of assaulting or offering personal violence to him, or'to any member of his family being therein, then the killing would be justifiable, and the jury should find the defendant not guilty.” “The court charges you that when a man is in his own home and has done nothing to provoke assault, and a trespasser enters upon his premises with a high hand and attempts to force an- entrance into tbe bouse in sucb a manner as is calculated to lead a reasonably prudent man to believe that be or some member of bis family is in grave dang’er of being billed or receiving some serious bodily barm, tbe law does not require sucb householder to flee or to remain in bis bouse until bis assailant is upon him, but be may open bis door and shoot his assailant, if sucb course is apparently necessary for tbe protection of himself or family.”</p> <p>Tbe trial judge modified this instruction by adding at tbe end thereof tbe following words: “But tbe jury must be tbe judge of tbe reasonableness of defendant’s apprehension.”</p> <p>The judge also stated that the instruction as modified would be law in this case only in the event that the jwry should find that one of the men outside was armed with a pistol. To this limitation of tbe rule by tbe judge, defendant excepted.</p> <p>“Tbe court charges you that if you find from tbe evidence that tbe deceased came with three other young men to tbe home of tbe defendant and began shooting and cursing on tbe porch of defendant’s bouse, and threatened defendant, and refused to •leave when ordered, and was attempting with violence.to force an entrance into defendant’s borne, and that defendant bad reasonable grounds to believe and did believe that be or some member of bis family was in danger of losing their lives or suffering great bodily barm at tbe bands of tbe deceased, then defendant bad a right to defend bis bouse even to tbe extent of taking tbe life of tbe deceased; and if you further find from tbe evidence that defendant shot deceased, believing from tbe surrounding circumstances and tbe conduct of deceased that it was necessary to do so to protect himself or bis -family, then you should find tbe defendant not guilty.”</p> <p>His Honor read this instruction to tbe jury, but stated that it was given and should be considered by the jury only in the event that they should find that one of the men on the porch was armed with a pistol. “If one was not armed with a pistol, you should not consider this; for the court charges you that if one was not armed with a pistol, there is no evidence of the use of gentle means by defendantDefendant excepted to tbe limitation of rule stated in tbe prayer by tbe remark of bis Honor; also to bis Honor’s statement at tbe-sanie time that there was no evidence of the use of gentle means by defendant.</p> <p>The defendant was convicted of manslaughter and was sentenced to a term of three years in the State’s Prison, and he excepted and appealed.</p>

<p>» Appeal by defendant from Brougcm, J., at September Term, 1912, of BRUNSWICK.</p> <p>Indictment for selling liquor. Tlie defendant was convicted, and appealed.</p>

Appeal by defendant from Cook, J., at October Term, 1912, of Ibedell. Tbe defendant is indicted for tbe larceny of money, and from a judgment rendered on a verdict of guilty, be appealed. Tbe principal witness for tbe State testified that on tbe day tbe money was missed sbe was a stenographer in a lawyer’s office at Statesville, and that tbe.defendant was janitor of tbe building.

. Appeal by defendant from Peebles, J., at March Term, 1913, of Alamance. Indictment for murder. The testimony on the part of the State tended to show that on 18 January, 1913, Nash Lane was killed by a discharge of a pistol in. the hands of the prisoner and under circumstances as follows: Bob Tarpley, for the State, testified: “That he was 5 to 10 feet behind a group of persons, seven in number, in which were included the deceased and the defendant.

Appeal by defendant from Webb, J., at December Term, 1912, of Hecxlenbttkg. Tbe defendants, Sam Wallace and Lula Wallace, were indicted-for the larceny of $1,650 in money, the property of the Southern Express Company, a corporation, and were tried together. After hearing the evidence, his Honor charged the jury that there was insufficient evidence to pass upon the guilt of Lula Wallace, and instructed the jury to return a verdict of “not guilty” as to her.

Appeal by defendant from Lyon, J.,jat March Term, 1913, of BuRKE. The defendant was indicted for an ássault on Oleo Moore. In view of the judge’s charge to the jury, it is necessary to state only the defendant’s testimony, which was as follows: At the time of the alleged assault, I sajw the prosecutrix, Oleo Moore, down in the woods near a spring with two white men. I took bold of ber to carry ber to ber grandmother.

<p>Husband and Wife — Nonsupport of Wife — Criminal Law — Interpretation of Statutes.</p> <p>In order to convict under an indictment for abandonment and nonsupport of the wife, it is essential to show a failure of the husband to provide an adequate support for his wife, as well as the act of abandonment; and in this case the evidence is held insufficient.</p> <p>Appeal by defendant from V&rguson, J., at January Special’ Term, 1913, of Ruthereoed.</p> <p>Indictment for abandoment and- nonsupport, under Revisal, sec. 3355.</p> <p>Tlie prosecutrix and the defendant were married -in Januafy, 1912, and kept house for three months, when the defendant told his wife that he was going away on a visit of a few days. He left with his trunk and remained away about a month. His wife went to her father’s home and lived with him until she returned to her husband, who was then at Blacksburg, S. 0. Defendant wrote to his wife about two weeks after he left, and sent her some money. He ¡sent for her and she went to him in South Carolina, and they lived at Drayton, S. 0., for two weeks. She then left him and returned to her father’s home. She was not driven away by her husband, but left of her own accord. He told her if she wished to go, he would not object, but left it to her. When she left, he bought her a ticket, gave her $10, and accompanied her on her journey as far as Chesney, S. G., where she kissed him and they parted. They have been living apart ever since. He told her while they lived in South Carolina that he did not care any more for her than 'he did for any other respectable woman. He paid for her board and clothing’ while they were at Drayton, and when he left Caroleen, in this State, she received $23.50, and he sent her, before he left the State for Drayton, S. C., $22.50. The warrant was issued 15 June, 1912. Defendant offered to live with her, but she refused to do so. The court left the case to the jury upon the question whether there had been an abandonment in this State and a failure to provide adequate support, pefendant was convicted, and appealed.</p>

<p>Appeal by defendants from Long, J., at December Special Term, 1912, of BuNCOmbe.</p>

Appeal by defendants from O. H. Allen, J., at October Term,' 1912, of Forsyth. The defendants, Wattie Greer and Wallace Greer, were indicted for the murder of one Will Finney, and from' judgments rendered on a verdict of manslaughter, they appealed. The first witness for the State, Delia Causer, testified as follows: “I live on Bath Street in Winston, and in the afternoon of the day when Will Finney was killed, I saw for the first time in my life Will Finney and Wattie Greer.

Appeal by defendant from Foushee, at Spring Term, 1913, of Haywood. Indictment for murder. Before impaneling the jury the solicitor announced that he would not ask for a verdict of murder in first degree. One of the jurors was taken ill, and the trial proceeded with eleven jurors. The defendants were convicted of manslaughter and sentenced to the penitentiary.

<p>1. Indictment — Assault—Proof Variance — Interpretation of Statutes —Former Jeopardy — Defenses.</p> <p>Where the indictment charged an assault, etc., upon “Lila” Hatcher, and the evidence tended to show that it was made upon “Liza” Hatcher, and upon defendant’s motion the court directed an acquittal for the reason that the names were not idem sonms, but held the defendant to appear and answer at 'the next term of the court to the charge of assault, etc., upon “Liza” Hatcher, it is Held, (1) that the variance between the charge in the indictment and the proof was immaterial (Revisal, sec. 3254) ; (2) that, notwithstanding, the plea of “former jeopardy” on the second trial could not be sustained, as the instruction in the former action was at the prisoner’s request, and had not the effect of placing him in jeopardy.</p> <p>2. Criminal Law — Jurors—Expression of Opinion — Grand Jurors.</p> <p>Where a petty juror had sat upon the grand jury at a former term of the court, when a true bill for assault, etc., had been found against the defendant, upon which the action was dismissed at the instance of defendant for defect in the indictment, and the present trial is upon an indictment correcting this error, objection thereto cannot be sustained when the juror, on his voir dire, has stated that he had not formed or expressed an opinion, and it does not appear that he was present as a grand juror, or had then voted upon the indictment.</p> <p>3. Jurors — Motion to Set Aside — Court’s Discretion — Appeal and , Error.</p> <p>A motion 'to set aside a verdict because of a defect as to one of the jurors is -addressed to the discretion of the trial court, from which no appeal lies.</p> <p>4. Criminal Law — -Prisoner's Statements — Custody — Duress—Evidence.</p> <p>Where a criminal offense is charged, statements made to an officer of the law by the prisoner are not incompetent because the defendant was in custody or jail at the time, unless there was duress, threats, or -inducements.</p>

Appeal by defendant from Webb, J., at September Term, 1912, of MeckleNbukg. The defendant was indicted in the court below for the murder of Dr. Fred Misenheimer, and was convicted of manslaughter. The evidence taken at the trial'is very Voluminous, covering nearly a hundred closely printed pages, and it will serve no useful purpose even t'o give a full synopsis of it.