Volume 163 — North Carolina Reports

From Beaufort. Motion for injunction, beard by Bragaw>, J., at chambers, 3 July, 1913. This is an action for an accounting to ascertain the amount due under a deed of trust, executed by the plaintiff to the defendant Bodman, on 19 April, 19Ü5.

Appeal by plaintiff from Long, J., at February Special Term, 1913, of ChowaN. • Civil action tried upon these issues: 1. Did defendant -Byrum wrongfully and unlawfully enter on the premises of the plaintiffs and trespass, as alleged in complaint ? Answer: No. 2. What damages, if any, is plaintiff entitled to recover- on account of said alleged trespass ? Answer: . The plaintiffs appealed.

Appeal by defendant from Long, J., at Spring Term, 1913, Of WASHINGTON. •This and the case of Harrison v. Telegraph Go., involving practically the same questions and arising out of the same transaction, were consolidated in this Court and argued together. There was evidence for the plaintiffs, Aline Ellis.on' and Annie Harrison, that they were adopted hy Sue Wright as her daughters, and reared and educated by ber, Annie being her niece and Aline her husband’s niece.

Appeal by plaintiffs from Whedbee, J., at Eall Term, 1912, of PekquimaNS. Tbis is an action to recover damages for entering upon tbe land of tbe plaintiff and removing a logging road tbexefrom. On 31 December, 1910, tbe defendant conveyed tbe land to tbe plaintiffs, reserving all tbe pine timber tbat would measure 10 inches across tbe stump wben cut, provided tbe same was cut witbin ten1 years. Tbe plaintiff W. B. Basnigbt testified as follows: “I am one of tbe plaintiffs.

<p>Appeal by defendant from Long, J., at Spring Term, 1913, Of "WASHINGTON.</p>

<p>1. Courts — Jurisdiction — Federal Receivers — Permission to Sue— Purchasing Corporations.</p> <p>It is unnecessary, under the United States statutes, to get permission'from the Federal courts to sue its receivers of an insolvent corporation, in the courts of a State, and a fortiori such consent is unnecessary to sue in the State court a purchasing railroad corporation under a Federal foreclosure sale, for the wrongful death of an intestate inflicted while the property was being operated by the receivers, after confirmation had been decreed and the purchasing corporation had been put into possession ; and it is further held in this case that the decree of the Federal court retaining the cause for the protection of the purchaser and others interested was not intended to have a contrary effect.</p> <p>2. Railroads — Federal Receivers — Purchasing Corporations — Torts —Liability—State’s Courts — Jurisdiction.</p> <p>The liability of a purchasing railroad corporation of the property of an insolvent railroad corporation'at a foreclosure sale in the Federal court, after confirmation by the court and possession given, for the wrongful death of an intestate, inflicted while the property was being operated by the receivers, is a question of law which may be resolved by the State court in an action there begun; and it is held that such purchasing corporation is liable, for that the earnings of the property in the receiver’s hands are first applicable under the law to liabilities of this character, and its application otherwise would be a wrongful diversion which would render the purchasing company equitably liable.</p> <p>3. Railroads — Removal of Causes — Nonsuit—Purchasing Corporations — Actions.</p> <p>Where an action for the negligent killing of plaintiff’s intestate was originally brought against the Federal receivers of a railroad company, in the courts of this State, removed by the defendants to the Federal courts, where the plaintiff took a non-.suit, and subsequently the corporate property has been foreclosed and decree confirming the sale has been made and thereunder the possession pf the property has been given to the railroad corporation which purchased at the foreclosure sale, the plaintiff may again bripg bis actión for the same cause, in the State court, against the purchaser, within a year from the time of his taking the nonsuit.</p>

.Appeal by defendant from Whedbee, J., at Spring Term, 1913,' Of PERQUIMANS. In 1909 sundry landowners in Chowan and Perquimans counties filed before the Clerk of the Superior Court of Chowan County a petition for the establishment of a drainage district under chapter 442 of the Public Laws of 1909. J, P. and L. A. Goodwin were signers of this petition.

<p>1. Contracts to Convey — Marriage—Consideration.</p> <p>An obligation made to convey lands upon condition that the obligee marry the daughter of the obligor, which he accordingly does, is supported by a valuable consideration, to wit, marriage.</p> <p>■ 2. Same; — Statute of Frauds.</p> <p>The plaintiff and defendant agreed by parol that if the former married the daughter of the latter, the defendant would pay him a certain sum of money, which was subsequently by mutual agreement changed to a certain strip of the defendant’s land. The plaintiff married the defendant’s daughter thereafter, and a written agreement, dated as of the date of the marriage, was given by the defendant to the plaintiff, that if the plaintiff “will marry my daughter Lily, I hereby agree to give him all that strip of land,” definitely describing it: Held, the paper-writing was sufficient under the statute of frauds, and-specific performance thereof should be decreed.</p> <p>3. Same — Equity—Specific Performance — Conditions Subsequent— Deeds and Conveyances.</p> <p>The plaintiff sued for the specific 'performance of a written contract that if he would marry the defendant’s daughter, “and would be good and kind to her,” the defendant would give him a certain definitely described tract of land. The plaintiff complied with the conditions imposed, and it is held that so much of them as related to the treatment of the daughter were conditions subsequent and properly decreed to be written into the deed, and were not too indefinite or uncertain to permit the remedy sought.</p>

<p>Appeal by plaintiff from Whedbee, J., at April Term, 1913, of WASHINGTON. - _ ■</p>

<p>Appeal by defendant from order granted by Lane, J., by consent, at Halifax, 13 June, 1913; from Nash.</p>

<p>Ajppeal by defendant from Gline,, J., at chambers; from Nash.</p>

Appeal by plaintiff from Cline, J., at April Term, 1913, of Nash. Tbis is a proceeding for partition of land, tbe plaintiff claiming, to be tbe owner of an undivided one-fiftb interest under a deed executed by Martba Ann Davis and ber children, all of wbom are defendants. ■Tbe summons was served on 10 February, 1910, and witbin ten days thereafter tbe plaintiff filed bis complaint.

Appeal by plaintiffs from Whedbee, J., at December Special Term, 1912, of PekquimaNs. Tbis action was brought to recover the value of a bale of cotton, alleged to have been unlawfully converted by the defendant. These are the facts: William Maddrey leased a piece of land to Ferdinand Gregory for the .year 1911, reserving a certain rent.

Appeal by defendants from Whedbee, J., at April Term, 1913, of WASHINGTON. Tbis action was commenced against tbe Bank of Plymouth and Clarence Latham, before a justice of the peace, to recover the sum of $200. On the return day of the summons the defendant bank and Latham moved that U. S. Jackson be made a party, and that summons issue to Pitt County, the residence of said Jackson. The motion was granted and the case continued.

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

Appeal by plaintiff from WhéSbee, J., at May Term, 1913, of Beaufort. This action was' brought to compel the defendant to execute a deed for the renewal of a timber contract, which had expired. On 2 January, 1905, William' J. Outlay, being the owner of a tract of land, conveyed to the plaintiff the timber thereon, with the privilege of cutting and removing the same within seven years from the date of the deed, that is, on or before 2 'January, 1912.

<p>1. Appeal and Error — Judgment—“Mistake”—Interpretation of Statutes.</p> <p>On appeal from an order setting aside a judgment for mistake, etc., under Revisal, 513, the court can review only the question whether the facts found by the lower court constitute such mistake, etc., as would authorize him to set aside the judgment.</p> <p>2. Same — Verdict.</p> <p>Where on appeal from an order setting aside a judgment and verdict for mistake, etc., rendered under provisions of section 513, Revisal, the judge of the lower court has found that by mistake in describing the lands sued for the attorney has demanded judgment in his complaint for a fractional part of the fractional part of lands contended for, and not the whole of such, fractional part, mistaking the description of one for that of the other; that during the progress of the trial the testimony of the witnesses reasonably confirmed him in this mistake, and it appears that the judgment entered conformed thereto, it is Held, that the order setting' aside the judgment and verdict comes within the purview of the statute, and will be sustained, the rights of third .persons not having intervened.</p> <p>3. Judgments — '“Mistake,” Etc. — Words and Phrases — Interpretation of Statutes.</p> <p>Revisal, 513, authorizing the judge to set aside a judgment and verdict or other proceedings within one year after notice, is not restricted to cases of excusable neglect, but embraces also those taken “through his mistake, inadvertence, or surprise,” the meaning of each being distinct from the other, and the right applying as to each separate from the other, as, in this case, for “mistake” alone.</p> <p>4. Judgment, Adverse — “Mistake,” Etc.</p> <p>Where a successful party litigant has, through his mistake in the description of lands, 'recovered less than he should be entitled to, he may move the court, under the provisions of Revisal, sec. 513, to set aside the verdict and judgment, the judgment being adversary to him to the extent of the diminution of his recovery through his mistake.</p>

Appeal by defendants from Garter, /., at March Term, 1913, Of JOHNSTON. This was originally an action for tbe recovery of a lot of leaf tobacco raised by E. T. Parham on defendant’s farm, known as the “Widow Whitley’s place.” Parham was the tenant of defendants in 1910, cultivating the farm on shares-. Plaintiff D. H. McCullers made advances to him in money and supplies, under a contract between them.

Appeal by plaintiff from Long, J., at February Term, 1913, of Beaufort. Civil action tried upon this issue: “What part of the amount collected and received by the defendants to the use of the plaintiff has defendant failed to account for and pay over to the plaintiff? Answer: $108.05.” Upon this trial before the jury, plaintiff offered the witness' E. A. Allenach, who testiffe'd: “I was bookkeeper for D. L. Arey Distilling Company, but am not with them now.

. Appeal by plaintiff from Cooke, J., at tbe March Term, 1913, Of NORTHAMPTON. Civil action. From a judgment of nonsuit, upon tbe first cause of action stated in complaint, plaintiff appeals. Plaintiff also moves in tbe Supreme Court for a new trial upon tbe second cause of action, upon tbe ground of newly discovered evidence. Tbe facts are stated in tbe opinion of tbe Court.

Appeal by defendant Hinton from Lyon, J., at June Term, 1913, of Edgecombe.

<p>Drainage Districts — Procedure.</p> <p>In this proceeding to form a drainage district under tbe Laws of 1909, ch.- 442, no error is found on appeal, the ease being controlled by SheUon v. White, post, 90.</p>

<p>Estates — Deeds and Conveyances — “Bodily Heirs” — Interpretation of Statutes.</p> <p>An estate to B. “and bis bodily lieirs,” under tbe old law would have conferred a fee tail, which, under our statute, where a contrary intent may not be gathered from tbe instrument construed as a whole, is converted into a fee simple. Revisal, sec. 1578. Oases in which the words “bodily heirs” used in a conveyance are held to be clescriptio personwwm, conveying to them an estate in remainder and as inn-chasers from the grantor, cited and distinguished.</p>

<p>Appeal by defendant 'from Long, J., at January Term, 1913, •of PASQUOTANK.</p>

<p>Appeal by plaintiff from Whedbee, J., at May Term,. 1913, of Beaueort. '</p> <p>Tbe action is brought to recover one-sixth of an insurance policy for $5,000, payable to a copartnership known as Spencer Brothers of Washington, North Carolina, composed of George A. and Jones Spencer. At one time the plaintiff owned a one-sixth interest in said copartnership. Defendants answered, denying .the ownership of plaintiff in said policy, or any part of it.</p> <p>Plaintiff offered the following evidence:</p> <p>Copy of the policy of insurance referred to in the pleadings.</p> <p>Plaintiff offered section 4 of the answer of O- A. Spencer down to and including the word “time” in the sixth line.</p> <p>Plaintiff offered a certified copy from the office of the clerk of the Superior Court of Craven County, under his hand and official seal, of' the will of the late Jones M. Spencer and the alleged codicil thereto attached, as appears to have been probated.</p> <p>Upon objection by each of the defendants to the introduction of the copy of the alleged codicil, plaintiff’s counsel stated that they had no information that any written notice was ever given to the executor of Jones M. Spencer of the motion to probate the said letter as a codicil to the will of the said Jones M. Spencer, and that plaintiff had no evidence to offer that such notice was given. Defendants severally object and except to the admission of said paper.</p> <p>Plaintiff introduced bill of sale’ from the plaintiff to J. M. Spencer and George A. Spencer, Book 156, page 66.</p> <p>Conveyance from K. Eula Spencer to G. A. Spencer, dated 15 June, 1909.</p> <p>A. G. Spencer was sworn, and testified: “I am the A. G. Spencer referred to in the paper-writing which -we call a codicil, consisting of a letter from Jones M. Spencer. I was the brother of Jones Spencer, and came out of the firm of Spencer Brothers at the time of the execution of the deed or bill of sale which has been read. I have never been paid any part of the proceeds of the policy referred to in this case. George A. Spencer told me the policy had. been paid.” (Admitted only against G. A. Spencer.)</p> <p>Cross-examination: “I do not recognize the firm ledger; can’t see well enough to. The best I can see, I think it is in the handwriting of George Hepinstall. When I was a member of the firm we carried in. tbis ledger what we called a stock account. Tbat account represented tbe proportionate interest of each, member.</p> <p>“At the time I sold out to J. M. and G. A. I do not exactly remember the relative interests ,in the firm, but they were about 10 for Jones, 1 for George, and 3 for me. I think Jones died in 1909, some time in March., He returned from his trip to Europe some time in the fall before that, several months, but not as much as six.</p> <p>“George Spencer told me he had collected the policy. I do not know about the debts the firm owed at the time of the death of my brother. Never heard George Spencer say how much the debts were. He told me there was a very big trade; that they had a big sale and raised about enough to get them out of debt. .That was just before Jones died.</p> <p>“My interest in the partnership would be about one-sixth. I think Jones’ was just about as much as George’s and mine put together, and George and I were pretty near the same. There was a little difference between George’s and my shares up until just a short time before I drew out.”</p> <p>Plaintiff introduced a bill of sale from the plaintiff to J. M. and G. A. Spencer, dated 6 January, 1904, and duly recorded, conveying to the said J. M. and G. A. Spencer, as copartners, all the right, title, interest, and estate of plaintiff, whatever the same may be, in and to all of the partnership assets and all of the partnership property of the said firm of Spencer Brothers, and all accounts and every article of property of whatsoever kind, nature, or description,'wherever the same may be situated, which belonged to the firm of Spencer Brothers, or in which they had any interest, including the right to carry on business under the firm name of Spencer Brothers, which bill of sale also conveyed to the said Spencer Brothers all of the interest of the plaintiff, as a member of the said firm, in said insurance policy.</p> <p>Plaintiff also introduced in evidence a conveyance from K. Eula Spencer, as executrix and devisee of J. M. Spencer, dated 15 June, .1909, and duly recorded, conveying all of the right, title, and interest whereof the said J. M. Spencer died seized and possessed, in and to all of the property and assets of every kind and description belonging to or connected with tbe business and firm of Spencer Brothers, composed of tbe said J. M. Spencer and G. A. Spencer, with a provision that tbe said G. A. Spencer should assume and pay all debts of tbe said firm.</p> <p>SECTION OB' INSURANCE POLICY.</p> <p>■ ’ In tbe sum-of five thousand dollars ($5,000), and promises to pay at its home office, in tbe city of Philadelphia,- unto tbe firm of Spencer Bros, (comprised of Jones l^C., George A., and Alexander G. Spencer,), its successors or .assigns, tbe said sum insured, upon receipt of ,due proof of tbe death of tbe insured, during tbe continuance in force of this policy, upon tbe following conditions, namely:</p> <p>will OB’ J. M. SPENCER.</p> <p>I, J. M. Spencer, being of sound mind and good health, make this my last will' and testament. I bequeath to my beloved wife, E. Eula Spencer, my entire estate, real and personal property; and appoint her my executrix.</p> <p>Witness my band and seal this 17 September, 1903.</p> <p>J. M. Spencer.</p> <p>Witnesses: Carrie W. ‘Cole; J. A. Jones.</p> <p>COPY OE LETTER TO A. G. SPENCER.</p> <p>Brother Alex: • New York, 6/16/08.</p> <p>I am sorry you bad to go under. I hope you will save something out of it. If I die I want you to have your part of tbe five thousand insurance I took out for Spencer Brothers. I have written to brother George to see that you get it.</p> <p>We will sail for southern Italy to-morrow, and will go up through the different countries to London, and then home. Will be gone ten weeks.</p> <p>Give my love to Mame and Bettie.</p> <p>Good-bye, Your brother,</p> <p>Jones.</p> <p>Tbis letter was offered for probate, without notice to the executrix, and probated as a codicil to the above will.</p> <p>Plaintiff rested.</p> <p>Each defendant severally moved for judgment of nonsuit.</p> <p>Motion allowed as to each.</p> <p>The plaintiff duly excepted and appealed.</p>

<p>1. Drainage Districts — Procedure—Exceptions.</p> <p>An appeal from the final order of the clerk in establishing a drainage district under the provisions of Laws 1911, ch. 67, sec. 3, is heard only upon the exceptions thereto filed as to issues of law or fact.'</p> <p>2. Drainage Districts — Constitutional Law.</p> <p>The authority of the Legislature to provide for the creation of levee and drainage districts is based upon the police power, the right of eminent domain, and the taxing power, which is upheld as valid, and the Laws of 1909, ch. 442,'and 1911, ch. 67, are constitutional.</p> <p>3. Drainage Districts — Proceedings to Lay Off — ‘Objections, When Taken — Benefits—Issues.</p> <p>When the two freeholders and surveyor have acted upon the preliminary order .of the clerk of the Superior Court in proceedings to establish a drainage district under the Laws of 1909, ch. 442, and 1911, ch. 67, and the required report is made by them to clerk, as to whether the proposed improvement is practicable and conducive to the general welfare of the district proposed, or whether the lands included will be benefited, etc., and the report filed with map and other things required, it is then the clerk’s duty, if the report is favorable, to approve the same and give notice of the date to hear objection, 'which then may be made by any person whose land has been embraced, that his land be excluded, which may raise an issue of fact as to whether his lands have been benefited or not.</p> <p>4. Same — Trials—¡Questions for Jury — Questions for Court.</p> <p>A petition for the establishment of a drainage district under chapter 67, Laws of 1911, and 1909, ch. 442, of a majority of the resident landowners or of the owners of three-fifths of the land therein, approved by the report of the viewers and surveyor and affirmed by the clerk, permits a minority, owner to raise only the issue of fact for the jury to determine as to the benefit to his lands; and should the jury find in favor of the objector, he is not entitled as a matter of right to have his land excluded, but it is for the judge to decide -whether this may be done without injury to the district, and if not, he may order that such land be retained, upon payment of the damages to be awarded by the jury, as in condemnation of lands; all other matters embraced in the report are subject to approval by the clerk, and reviewed by the judge without the intervention of a jury, being questions of fact.</p> <p>5. Drainage Districts — Minority Owner — Objections—Formation of District.</p> <p>A minority landowner included in a proposed drainage district to be laid out in proceedings under ch. 442, Laws 1909, and ch. 67, Laws of 1911, may not contest the formation of the district, but can raise only the issue as to his benefits therefrom.</p> <p>6. Drainage District — Original Petitioner — Objections—Procedure.</p> <p>Upon report of the viewers and surveyor at the final hearing in proceedings to lay off a drainage district, Laws 1909, eh. 442, and 1911, ch. 67, one who signed the-original petition may have ascertained from the information contained in the report, contrary to his previous opinion, that the cost of the improvements and damages will amount to more than, the benefits to his land, and hence he may then file his objections, and the same procedure is then open to him as if he had not signed the petition.</p> <p>7. Drainage Districts — Objection by Majority — Findings—Remand- ' ing Cause — Dismissal of Proceedings.</p> <p>In these proceedings to lay off a drainage district it is alleged that upon the coming in of the final report of the viewers and surveyor, a majority of ’the resident landowners in the proposed district and the owners of three-fifths of the acreage therein objected. This has not been passed upon by the judge of the lower court, and the case is remanded to him for his finding, with direction if the allegation be true, that the proceedings be dismissed.</p> <p>Bbown, J.,'did not sit and took no part in the decision of this case.</p>

<p>Appeal by defendant from Whedbee, J., at March Term, 1913, Of PERQUIMANS.</p>

Appeal by defendant from Cline, J., at March Terra, 1913, of Edgecombe.

Appeal by plaintiffs from Garter, J., at May Term, 1913, of JOHNSTON. Civil action to set aside a deed, on the ground tbat same was made with intent to defraud the creditors of the grantor. There was judgment sustaining demurrer, and plaints excepted and appealed.

<p>Appeal by plaintiff from Garter, J., at May Term, 1913, of H.ARNETT.</p>

Appeal by defendant from Gline, J., at May Term, 1913, of Nance. This action was brought to recover certain expenses incurred and paid by the county of Yance in executing the provisions of law in regard to quarantine during an outbreak of smallpox in said county, and in the town of Henderson, which is in the said county, in the years 1911 and 1912.

<p>Appeal by plaintiff from 0. H. Allen, J., at May Term, 1913, •of GREENE. ,</p>

<p>1. Contracts — Future Delivery — Cotton—Consideration.</p> <p>• A contract to sell a stated number of bales of cotton at a fixed price per pound, on a certain date, is supported by a sufficient ■ consideration, viz., the nfutual agreement of the parties, the one Jo sell and the other to buy the cotton in the quantity and at the price and date determined upon, and it is bilateral and not unilateral.</p> <p>2. Same — Apparent Validity of Contract.</p> <p>4 A definite contract for the sale of cotton at a future date, without indication th-at it is not what it -purports to be, is not void upon its face as a wagering contract.</p> <p>3. Contracts — Cotton—Future Delivery — Evidence—Prior Transac--•tions — Intent.</p> <p>Conversations preliminary to the making of a contract and during negotiations leading up to it may be relevant to prove’ the intent with which it was made, where that intent is in question.</p> <p>4. Contracts — Indorsements—Evidence.</p> <p>Evidence of the indorsement on a contract for the sale of cotton made by the buyer to the indorsee, and of the handwriting of the former, is competent in the indorsee’s action to recover damages against the seller for the breach of the contract to prove the assignment of it.</p> <p>5. Contracts', Wagering — Cotton—Future Delivery — Quantum of Evidence — Instructions.</p> <p>In ah action for damages for the breach of a contract when the trial judge has placed the burden of proof under the statute upon the plaintiff to show that actual delivery of the cotton was contemplated, a charge is not erroneous which instructs the jury that the evidence must be believed by them and produce in their minds a conviction that the contract was a bona flcle one for the actual delivery of the cotton.</p> <p>6. Contracts, Wagering — Cotton—Future Delivery — Evidence—Good Faith — Actual Delivery — Intent of Parties — Instructions.</p> <p>■ Where the defendant in his answer specifically alleges that a contract for the future delivery of cotton was a wagering one, the burden is on the plaintiff to establish that it was not (Re-visa!, sec. 1691) ; and in this case where the contract is valid on its face, a charge is held sufficient that if the jury believed the evidence and were convinced thereby that the parties to the contract really and in good faith contemplated an actual delivery of the cotton, and that it was not merely a gambling transaction under the guise of a fair and lawful dealing, they should answer the issue in the negative, that the contract was not a wagering contract which is forbidden by law.</p> <p>7. Contracts, Valid on Face — Wagering Contracts — Cotton—Future Delivery — Terms of Agreement — Intent.</p> <p>Where a contract for the future delivery of cotton appears upon its face to be valid, and recovery thereon is resisted on the ground.that it is a wagering one, it is the intention of both parties which will control as to whether the contract contemplated the delivery of the cotton, or was couched in the terms of a lawful contract to conceal a gambling agreement in which it was contemplated that-one or the other of the parties would win or lose, depending solely upon whether the price should rise or fall, receiving in settlement of the same only the difference in the price, and not the cotton or its value.</p> <p>8. Instructions — Directing Verdict — Words and Phrases — 'Appeal and Error — Harmless Error.</p> <p>A charge of the court directing the answer of the jury to an issue in a certain way, “if they believed the evidence,” is undesirable in its form, and is not commended; but reversible error will not be found by reason of tbe use of this expression where it appears that the appellant was not prejudiced thereby; and where the evidence referred, to is not disputed and but one inference can be drawn therefrom, it will not be held as error that the use of this form was a prohibited direction of the verdict by the court.</p>

<p>Evidence — 'Witnesses—Opinion Upon the Facts — Experience and Observation.</p> <p>Where it is alleged that a passing locomotive of the defendant caused damage to plaintiff by setting fire to his land some distance off of the right of way by a spark from the engine, it is competent for a witness, who has had experience running locomotives using the same kind of fuel, to testify whether from his observation the engine, under the conditions, could have thrown a spark the distance stated.</p>

Appeal by defendants from 0. H. Allen, J., at May Term, 1913, of GreeNE. This is a proceeding for the sale of land for partition and to pay the debts of the two original tenants in common out of the proceeds 'of sale, the balance to be divided among the tenants according to the several and respective interests. All parties have been duly brought into court by the service of process, as the court finds and adjudges in its order, 15 October, 1912.

<p>Appeal by plaintiff from O. H. Allen, J., at May Term, 1913, of Pitt.</p>

Appeal by defendant from 0. II. Allen, J., at May Term, 1913, of CbaveN. Civil action.

Appeal by defendant from 0. II. Allen, J., at April Term, 1913, of Pitt. This is an action to recover damages for injury to a horse and a mule, caused by the negligence of the defendant. The following verdict was returned by the jury: 1. Was the mule mentioned in the complaint injured and killed by the negligence of the defendant; Answer: Yes. 2. If so, in what amount has the plaintiff been damaged thereby? Answer: $200. 3.

. Appeal by plaintiff from 0. II. Allen, J., at March Term, 1913, of Pitt. Civil action seeking an injunction. The court found the following facts: 1. That the resolution in controversy was passed by the board of commissioners on 14 November, 1912, it being an adjourned meeting from the regular meeting which was held on Monday, 4 November, 1912. 2.

Appeal by defendant from Adams, J., at February Term, 1913, Of Cl-IATHAM. Tbis is an action to recover damages for personal injury, caused, as tbe plaintiff alleges, by tbe negligence of tbe defendant. There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed.

CONTROVERSY without action, heard by Coolee, J., September Term, 1913, of Ware, upon the following agreed state of facts: 1. The city of Raleigh is a municipal corporation, chartered under chapter 59,' Private Laws of North Carolina, Session 1913, as amended, which charter was adopted on the first Tuesday in April, 1913, by a majority of the then registered and qualified voters of the city of Raleigh, and that James' I. Johnson is mayor of the city of Raleigh. 2.

<p>Appeal by plaintiff from Garter, J., at tbe May Term, 1913, of WaYNE.</p> <p>This action was to recover damages from defendant company for physical injuries caused by reason of tbe alleged negligence of said defendant in failing to supply safe and suitable equipment for a cotton gin owned by tbe company and operated for tbeir benefit.</p> <p>Tbe cause was submitted on tbe three issues, (1) of negligence, (2) of contributory negligence, (3) damage. Tbe jury answered tbe first issue in favor of plaintiff.</p> <p>Judgment on tbe verdict, and plaintiff excepted and appealed.</p>

Appeal by plaintiff from Whedbee, J., at April Term, 1913, Of WASHINGTON.' • This action is to recover the amount of a certificate of insurance for $500, containing the following provision stamped on its face, above the signatures of the officers of the defendant executing the same: “This certificate is issued with the provision that in case of death of the member not more than one-fifth of the amount otherwise due will be payable for each full year of membership,” and with…

<p>1. Railroads — Principal and Agent — Conductor—Malicious Abuse of Passenger — Scope of Employment.</p> <p>Tlie use of abusive and insulting language to a female passenger, by a conductor on a passenger train, because she had not purchased a ticket for a 9-year-old child, traveling with her, is an act done within the scope of his employment, and binding upon tlie railroad, without its ratification, as an act of its vice-principal.</p> <p>2. Railroads — Conductor—Malicious Abuse of Passenger — Punitive Damages.</p> <p>A railroad company is liable in punitive damages for the willful, wanton, and malicious abuse by its conductor of a female passenger traveling on his train, occasioned by her not having purchased a ticket for her 9-year-old child traveling with her.</p>

Appeal by defendant from Daniels, J., at the August Term, 1913, of Chatham. This is a civil action to recover damages for mental anguish for negligent failure to deliver a telegram reading: MeKRIT G-RISWOLD, Bear Creele, N. C. Father died at 12 to-day. Burial to-morrow evening, church. (Signed) Oscar Griswold.

<p>1. Insurance — Suicide—Declarations—Res Gestae — Evidence.</p> <p>In an action on a life insurance policy, tbe unfulfilled declarations of tbe deceased of an intention to get a pistol for lawful purposes, made two weeks and also ten months before his death, are incompetent to rebut suicide, it appearing that the deceased was found early one morning dead from a pistol in his hand; the declaration having been made too remote in point of time to be a part of the res gesta, and also being statements made in his own interest.</p> <p>2. Same — Appeal and Error.</p> <p>A new trial will not be granted for erroneous admission of evidence or other errors unless it appears that the appellant has been prejudiced, but in this case it is held that the admission of unfulfilled declarations of the deceased to buy a pistol for lawful purposes, which were erroneously admitted, was reversible error in an action on a life insurance policy which was defended on the ground of suicide.</p>

Appeal by plaintiff from Whedbee, J., at May Term, 1913, of Beaufort. . On 17 March, 1908, L. R. Mayo and wife gave to James L. Mayo an option to purchase the land he bought of E. Tuthill, at any time on or before 15 July, 1908, for $6,000. At that time Mayo’s ownership of said tract was subject to an agreement with Whilden Springer made 7 May, 1904, and duly recorded 21 November, 1907. On April, 1908, L. R. Mayo died, leaving a last will and testament. .

Appeal by defendant from Long, J., at Spring Term, 1913, OÍ OüRRITUCK. Tbis action was brought originally against the receivers of the Norfolk Southern Railway, and when the receivership was terminated, the Norfolk Southern Railroad Company was made a party defendant. The properties of the Norfolk Southern Railway were sold by the receivers, under an order of the Circuit Court of the United States, and the Norfolk Southern Railroad Company became the purchaser.

Appeal by plaintiff from Oline, Jat March Term, 1913, of EDGECOMBE. This is an action to recover damages for personal injury caused by tbe negligence of tbe defendant, and tbe only defense relied on is tbat tbe plaintiff bas since bis injury accepted benefits from tbe Eelief Department. No statute of limitations bas been pleaded, but it is admitted tbat tbis action was commenced more tban two years after tbe injury.

Appeal by defendant from Long, J., at January Special Term, 1913, of Gates. . Civil action. The action, instituted on 7 February, 1911, against botb defendants, was for malicious prosecution, and on averment duly made that Addie E. Knight had wrongfully shed out justice’s criminal warrant and caused arrest of plaintiff for entering on the lands of said Addie E. Knight, after being forbidden, and that the other defendant had instigated and abetted said prosecution.

Appeal by defendants from O. H. Allen, J., at May Term, 1913, of Pitt. This is an action, instituted for the purpose of selling certain lands for reinvestment under the provisions of section 1590 of the Revisal.

<p>Appeal by defendant from Justice, J., at June Term, 1913, of LENOIR.</p>

Appeal by defendants from Wcurd, J., at May Term, 1912, of SAMPSON. This is an action to recover a tract of land of 37 acres, wbicb tbe plaintiffs claim Henry. Carroll, from whom the defendants derive their title by devise, conveyed, by deed to their ancestor, Albert Carroll, and the only issue in controversy is as to the delivery of the deed.

Appeal by defendants from Justice, J., at June Term, 1913, of LENOIR. This was a motion before the clerk, in the case of Williams v. Williams, to set aside a sale of land made under an execution. The motion was based upon affidavits filed, and the sale was set aside by .him. Plaintiff appealed to the Superior Court, where the action was dismissed, this Court reversing the decision.

Appeal by plaintiff from 0. Ill Allen, Jat April Teriü, 1913, of CRAVEN. This is an action to recover upon a policy of insurance issued by tbe defendant on 29 December, 1910. Tbe insured died on 13 May, 1911. Tbe defendant denied liability and set up as a defense that W. W. Burgess, tbe insured, in violation of tbe terms of tbe policy and of tbe application therefor, committed suicide, and tbe further defense that the policy was void for tbe reason that the applicant,.

<p>Appeal by plaintiff from Bragcm, J., at August Term, 1913, of PasquotaNK.</p>

Appeal by defendant from 0. H. Allen, J.} at March Term, 1913, of Pitt. This is an action for partition. J. J. Ewell died seized of the tract of land in question, and plaintiff alleges that Charles Ewell and his brother, 'Walter Ewell, are his sons and consequently were tenants in common of the land as his sole heirs.

<p>Appeal by 0. E. Page from O'. H. Allen, J., at April Term, 1913, of Pitt.</p> <p>Cause beard on case agreed and after transfer from clerk Superior Court, the question presented being tbe proper distribution of a fund arising from a sale of land for division.</p> <p>On tbe bearing it was made to appear tbat, in August, 1866, Major Jones made a deed to bis son, R. M. Jones, etc., for 40 acres of land, in terms as follows:</p> <p>“Tbis indenture, made tbis tbe lltb day of August, A. D. 1866, between Major Jones of tbe first part and Robert M. Jones of the second part, botb of tbe county of Pitt and State of North Carolina:</p> <p>“Witnessetb, Tbat tbe said Major Jones, for and in consideration of natural love and affection which be bas unto tbe said Robert, M. Jones, bis son, bas given, granted, aliened, released and confirmed, and by these presents do give, gránt, alien, release, and confirm unto tbe said Robert M. Jones, bis heirs and assigns, a certain tract or parcel of land situate as follows:</p> <p>“To have and to bold tbe said tract or parcel of land and all tbe appurtenances thereof to him, tbe said Robert M. Jones and Martha E. Jones, bis wife, during their natural life, and then, to their legal bodily heirs, provided they leave any, and if not, to be equally divided among my nearest of kin, etc.”</p> <p>Tbat on November 27, 1900, said R. M. Jones made a deed for tbe land to bis wife for life, remainder to seven of bis nine children' and not including a son, S. L. Jones, or a daughter, Huldab, intermarried with C. E. Page; tbat Huldab Page bad issue bom alive, a son, and she and son died before R. M. J ones and wife,, and these last having also died, present suit was instituted for sale of land for division. •</p> <p>Plaintiffs are tbe seven children of R. M. Jones and wife, who were grantees in tbe deed of R. M. Jones to bis wife, etc.</p> <p>Defendants are S. L. Jones, another son, and C. F. Page, surviving husband of Huldab.</p> <p>.On. these facts, it was contended for plaintiffs tbat, under tbe rule in Shelley’s case, tbe deed from Major Jones conveyed a fee simple, and that when R. M. Jones conveyed the property to his wife for life and remainder to seven of their ■children, plaintiffs, the deed passed the entire interest, and defendants were thereby excluded.</p> <p>Defendant S. J. Jones contended that the deed of Major Jones conveyed only a life estate, remainder to his children or issue, in the sense of children or grandchildren, and that he, as one of them, was entitled to a child’s interest.</p> <p>It was insisted for 0. F. Page that the deed from Major Lord conveyed a life estate to R. M. Jones and wife, remainder to their issue, in the sense of children and grandchildren, and that this remainder was vested jn such children, and that on the death of his wife, Huldah, leaving an infant son, her interest descended to such son, and on his death without issue and without brother or sister, the share passed to 0. F. Page, the father, under 6 Canon of Descent, Revisal, ch. 30.</p> <p>The court below, being of opinion that the deed of Major Jones conveyed a life estate, remainder to the children and grandchildren, contingent on their surviving their parents, entered judgment that defendant S. L. Jones was entitled to a share in the fund, and that O. F. Page was excluded, his son having died before R. M. Jones and wife.</p> <p>From this judgment said C. F. Page, having duly excepted, appealed.</p>

<p>Appeal by respondent from 0. H. Allen, J., at August Term, 1913, of DupliN.</p>

Appeal by plaintiff from Lyon, J., at February Term, 1913, of SAMPSON. This is an action to recover possession of a piano.

Appeal by defendant from Justice, J., beard by consent at chambers, 28 May, 1913, from ONSLow. Civil action to settle title to a lot of timber, beard upon case agreed. From a judgment for tbe plaintiff, defendant appealed.

<p>Appeal bj caveators from 0. H. Allen, J., at January Term,' 1913, of Pitt.-</p> <p>Caveat to will. On the trial it was made to appear that John Dupree died in 1887, having made a last will and testament and leaving him surviving two children, Robert Dupree and Olivia, a daughter. That in the will the land and chief part of the personal property was devised and bequeathed, to Robert, the son, the daughter receiving a nominal legacy of $5. That in December, 1887, said will, attested by three witnesses, was duly admitted to probate in common form and recorded. That- Robert, as owner, went into possession of the land immediately on his father’s death, and so remained until 1889 or 1890, when he sold and conveyed the same to Wiley Webb, who then went into possession and remained there until his death in 1908, and since that time his heirs have been in possession of the same. That on 6 March, 1911, caveat to said will was duly entered on behalf of the daughter, Olivia A. Williams, and her husband, J. A.Williams, and bond given, and the heirs at law of Wiley Webb duly cited to appear, etc. That prior to her father’s death, the daughter, Olivia, was married to J. W. Williams when she was under age, and she and her husband have, continuously resided in the neighborhood from the time of their marriage to the present, and were duly cognizant of the fact that the will had been admitted to probate and that Robert was in possession, claiming to own same as devisee. That within a year from the father’s death, for the daughter and her husband, a written protest to the will or caveat was submitted to the clerk, who declined to entertain the same for lack of a bond, and, later, in 1893, on an insufficient bond being offered, the clerk again declined to receive the paper as a caveat or to docket same, and no citation was ever issued for any of the parties interested, and the paper was kept on the clerk’s desk as papers “Not perfected nor ready to go on the docket” until they were destroyed by burning of the courthouse in 1910, There was further evidence that some time after selling the land to Webb the son Robert had gone to Florida and lived there since. There was testimony on the part of the caveators tending to show that J. W. Dupree was not competent to make a will, and for the other parties that he was of sound and disposing mind and memory at the time. At the close of the testimony, his Honor being of opinion that on the evidence and from perusal of the pleadings the right of caveators to proceed in the cause was barred by lapse of time, etc., wbieb was fully and properly pleaded, entered judgment dismissing the proceedings, and the caveators excepted and appealed. „</p>

Appeal by defendants from Justice, J., at June Term, 1913, of LeNOIR. Civil action to try title to land. Tbis issue was submitted: Is tbe plaintiff, Micajah. Barfield, the owner of the land described in the complaint? A. Yes, except the land lying west of the line from 1 to H, which would appear to be lands of the defendant Hill, he having been in actual possession under color of title.

<p>1. Deeds and Conveyances — Fraud—False Representations — Damages.</p> <p>The old doctrine that an action to recover damages for fraud and deceit would not lie in the case of a sale and purchase of land, in reference to the quantity or correct placing of the property, when the facts were readily ascertainable by survey or otherwise does not now obtain where positive fraud is -shown, as where the grantor was unacquainted with the lands conveyed and was deceived and thrown off his guard by false statements designedly made by the grantee at the time, and reasonably relied on by him, and there was nothing to arrest attention or arouse suspicion concerning them. Gray v. Jenlcins, 151 1ST.' C., 83.</p> <p>2. Same — Knowledge—Scienter.</p> <p>One who induces another to make a deed to lands to him by such false representations as amount to positive fraud, when he did not know whether the representations made by him were true or false, is as culpable in case the other is reasonably misled or injured by them as if at the time he knew them to be untrue.</p> <p>3. Deeds and Conveyances — Fraud—False Representations — Trials —Evidence—Nonsuit.</p> <p>In his action to recover damages for fraud and deceit in the purchase of land, there was evidence for the plaintiff, and per contra, tending to show that the plaintiff was, at the time of his executing the deed to the lands to the defendant, under 21 years of age, stationed near Baltimore as an enlisted soldier, awaiting transportation to foreign parts, and unacquainted with the value of the lands conveyed, and under these circumstances the defendant went to see him-, assured him he had been over the lands, and ’that he could rely upon his knowledge of the lands and its value, and so relying upon the defendant’s false representations that $1,000 was a fair price for the lands, accepted that sum for it, when, as he ascertained later, just before the commencement of this action, it contained a much greater acreage than he was led to believe, and was worth $10,000 or $11,000: Held, viewing the evidence in the light most favorable to the plaintiff, the issue of fraud was for the determination of the jury, and a motion to- nonsuit was improperly granted.</p> <p>4. Deeds and Conveyances — Fraud—False Representations — Quitclaim Deeds — Trials—Evidence.</p> <p>The plaintiff, while an enlisted- man in the army, and awaiting at Baltimore transportation abroad, was induced by the defendant to convey his lands to him for $1,000, when it was reasonably worth $10,000 to $11,000, under such representations as were evidence of positive fraud; there was also evidence that after the plaintiff returned and had opportunity for investigation, but was still without further knowledge- of the facts which had been falsely represented, lie was induced by tbe defendant to sign a quitclaim deed for the consideration of $200: Held, it is for the jury to determine whether, under all the facts and attendant circumstances, the plaintiff acted as a reasonably prudent man in making the second deed without further investigation, and whether the fraud and deceit existent when the first deed was obtained were effective in procuring the execution of the second deed, and whether the one was the natural effect of the other.</p>

Appeal by defendant from Garter, J., at April Term, 1913, of Wake. Appeal from justice’s court. Yerdiet and judgment for the plaintiff. The defendant appealed.

Appeal by plaintiff from Garter, J., at tbe April Term, 1913, of Wake. Civil action tried on appeal from court of justice of tbe peace, in tbe Superior Court. Plaintiff declared on a written contract for pnrcbase of a lot of cheap jewelry, to tbe amount of $198, tbe order containing a stipulation as follows: Date, July 14, 1911. BlACKSTAD MERCANTILE COMPANY, St. Louis, Mo.

Appeal by plaintiff from Justice, J., at May Term, 1913, Of SAMPSON. Tbis is an action to restrain tbe cutting of timber and to reform a deed and to recover damages. On 23 June, 1892, tbe plaintiffs executed a deed, in consideration of $150, to H. L. Pope, trustee, conveying tbe timber in controversy, witb tbe right to enter and cut and remove tbe same.witbin fifteen years, and tbe defendant is tbe owner by purchase of tbe property rights and easements in said deed.

Appeal by plaintiff from 0.' H. Allen, J., at August Term, 1913, of LeNolb. Petition for recordari. Tbe judge granted tbe writ below and ordered tbe cause to be docketed. Plaintiff excepted and appealed.

Appeal by defendant from 0. II. Allen, J., from LeNOIR. Civil action, on question of preliminary injunction, beard at chambers in the city of Kinston on 28 July, 1913. The action was brought to recover damages of defendant for severing plaintiff’s telephone connection in the city of Kin-ston and to compel defendant to .restore same.

Appeal by plaintiff from Garter, J., at April Term, 1913, of WAKE. ‘ This is an action to recover damages for personal injury, alleged to have been caused by the negligence of the defendant.

Appeal by plaintiff from 0. H. Allen, J., at March Term, 1913, of Pitt. This is an action to recover the price of certain medicines alleged to have been sold- and delivered to tbe defendant. The indebtedness is denied by him.

<p>1. Municipal Corpdrations — Streets and Sidewalks — Raleigh—Title in State — Municipal Control.^</p> <p>While the title to certain streets in the city of Raleigh was reserved by the State of North Carolina, the control of the city over these streets is the same as in any other cities or towns in the State, and it has the same 'discretionary right to cut down or trim up trees bordering the streets for the purpose of govem•ment or management, which can only be restrained in cases of willfulness or oppression.</p> <p>2. Municipal Corporations — Quasi-public Corporations — Charter</p> <p>Powers.</p> <p>A municipal corporation cannot transfer to a (¡"¡¿.«si-public corporation the rights that it exercises by virtue of its municipal character.</p> <p>3. Same — Injury to Shade Trees — Damages—Injunction.</p> <p>Where a (¡¿««si-public corporation, authorized by its municipal charier to place its poles and string its wires along the streets of a city, threatens the property rights in the shade trees along the sidewalks of adjoining owners, by cutting or trimming the trees, without affording them compensation, an injunction-will issue irrespective of whether or not the cutting was about to be done unnecessarily, wantonly, or oppressively.</p> <p>4. Corporations — Shade Trees — Wanton Injury — Punitive Damages.</p> <p>Punitive damages may be awarded against a corporation. authorized by its charter to place its poles and string its wires along a city street, for wantonness or oppression in cutting shade trees on the sidewalks along its route to the damage of abutting owners.</p> <p>5. Corporations — Injury to Shade Trees — Measure of Damages — Deterioration of Property.</p> <p>An abutting owner may recover damages from a (¡««si-public corporation for cutting or trimming shade trees, on the sidewalk in front of his property, done by it for the purpose of stringing its wires, etc., as authorized by its charter, to the extent that his property is thereby depreciated in value.</p> <p>6. Actions, Form of — Injury to Shade Trees — Condemnation—Measure of Damages.</p> <p>Forms of action are not now regarded of supreme importance, and the measure of damages for injury to shade trees done by a (¡««si-public corporation in pursuance of its charter powers' is the same, whether the action be brought by the person who has a property right in the trees or by the corporation in condemnation proceedings.</p>

Appeal by defendant from Garter, J., at April Term, 1913, .of Wake. Held: or all that I may acquire or hold at the time of my death, of whatever nature or description, then belonging to me.

Appeal by defendant from Lyon, J., at August Term, 1913, of Hoxe. This is an action to enforce a material lien against real property. During tbe spring and summer of 1911, W. N. Campbell bought of the plaintiff material with which to build his house at Eockfish, N. 0. The last item of material, as indicated in the notice of lien, was furnished 13 July, 1911.

<p>1. Municipal Corporations — Immoral Shows — Police Powers — Arrest.</p> <p>Under the provisions of Revisal, 3731, and- Private Laws 1907, eh. 1, applicable to tbe city of Raleigh, tbe chief of police of that city and his lawful officers of subordinates have the right to prevent or suppress an indecent or immoral show, given in any public place or in any place to which the public are invited, and in the proper discharge of these duties they may act immediately whenever such exhibitions are talring place in their pres- • ence or are imminent and their interference is required to prevent them; and in such case they may arrest, without warrant, any and all persons who aid or assist in such plays when, under all the facts and circumstances as they reasonably appear to them, such course is necessary for the proper and effective performance of their official duty.</p> <p>2. Same — Trials—Evidence—Nonsuit.</p> <p>Upon a nonsuit in an action to recover damages for alleged false arrest and imprisonment, where the defense is interposed that the arrest was made to prevent the production of an immoral show in a place where the public was invited, by the defendants as lawfully authorized officers of a city to do so, and the evidence is conflicting as to whether the show was of the . character which was prohibited, the question should be submitted to the jury,' under the .rule that in such instances the evidence which makes for plaintiff’s right to recover must he taken as true and interpreted in the light most favorable to him.</p> <p>3. Municipal Corporations — Immoral Shows — 'Police—Powers—Arrest — Reasonable Apprehension.</p> <p>When it- appears in an action for damages for false arrest and imprisonment, defended upon the ground that the arrest was made to prevent, the exhibition of a prohibited immoral show, that the plaintiff was arrested and imprisoned by the chief of police, acting without a warrant, under the written instruction of the mayor, the act of imprisonment is one calling for explanation, and would constitute an actionable wrong unless it was sufficiently established that the show in question was indecent or immoral, and that the action of the officer was necessary to prevent or suppress the exhibition under all of the facts. as they reasonably appeared to him.</p> <p>4. Same — Trials—Evidence—Nonsuits.</p> <p>The defendants in this action arrested and imprisoned the plaintiff, for which he brings his action for damages, and the defense is.urged that they made the arrest in the discharge of their duties in preventing the exhibition of an immoral play, as they were authorized to- do by the statute. While the evidence was conflicting, that of the plaintiff tended to show that he was under contract to heat the theater, and knew nothing of the character of the show, and was instructed by the manager of the theater to lock the doors ánd let no one enter, and turning to comply with this request he was arrested and incarcerated by the defendant chief of police, without offering resistance. There was further evidence that the show was not immoral, and that no exhibition thereof would be given .without permission of the city authorities: Held, a motion to nonsuit was improvidently allowed. .</p> <p>5. Constitutional Law — Judicial Warrants — Municipal Corporations —Ministerial Acts — Orders for Arrest — Immoral Shows.</p> <p>Judicial warrants, general in terms and unsupported by preliminary oath or sworn evidence and for conduct not committed in the immediate presence of the magistrate, are forbidden by the Federal Constitution, Amendment IV, and by the State Constitution, Art. I-, sec. 15; and in this case it is Held, that the written order given by the mayor of Raleigh to the chief of police is ministerial in character, and must be so considered in determining whether the mayor authorized the act of arrest by the chief of police, and to what extent he may be held responsible for it.</p>

<p>.1. Deeds and Conveyances — Mineral Deposits — Fee Simple.</p> <p>A conveyance under seal in consideration oí a specified sum of money, made to the grantee, “bis heirs, executors, administrators, and assigns,” of the right of entering in and upon particularly described lands of the grantor, “for the purpose of searching for mineral deposits and fossil substance,” and for taking and removing the mineral deposits- and fossil substance therefrom, which the grantee “may find imbedded in the earth of the said lands, and for mining and quarrying operations — to any extent he may deem advisable,” etc.; and also containing covenants that no other consideration by way of rent is to be paid, and against damage to the lands unnecessary in conducting the operations for mineral, etc.: Held, the “mineral deposits and fossil substance” beneath’ the earth’s surface may be conveyed separately from the land, and the deed, In substance and form, being sufficient to convey the fee in land, is also sufficient to convey the mineral and fossil substance therein.</p> <p>2. Deeds and Conveyances — incorporeal Hereditaments — Mineral Deposits.</p> <p>Mineral substances beneath the surface of the earth are regarded as incorporeal hereditaments, and pass by apt words in a deed delivered and registered.</p> <p>3. Same — Terminable at Will.</p> <p>Under a conveyance in fee of all the mineral deposits imbedded in lands described, the interest conveyed terminates only when these deposits.are removed by the grantee in accordance with the provisions of his deed.</p> <p>4. Deeds and Conveyances — Mineral Deposits — Construction of Deed.</p> <p>Where the meaning of a conveyance of mineral deposits on lands is doubtful as to whether it is a license, terminable at the death of the grantor, or in fee; the construction more favorable to the grantee will prevail.</p> <p>Clark, C. J., and Hoke, J., dissenting.</p>

<p>Appeal by plaintiff from Justice, J., at April Term, 1913, of New Hattoveb.</p>

Appeal by plaintiff from Ferguson, J., at April Term, 1913, of BobesoN. This is an action upon a note executed by tbe defendant, and payable to tbe order of Albert O. Tracy, for tbe purchase price of a borse. Tbe plaintiff alleged that tbe note was transferred for value and before it was due, by indorsement to Coleman & Son, and by Coleman & Son to tbe plaintiff.

<p>Appeal by defendant from Ferguson, J., at May Term, 1913, of RoBESON.</p> <p>This action was to recover damages for the wrongful cutting of timber on the part of defendants and was made dependent, chiefly, on the issue as to title to the land where the cutting occurred.</p> <p>The cause was before the Court at Spring Term-, 1912, on appeal of plaintiffs from a judgment of nonsuit, and will be found reported in 159 N. C., 236. The judgment of nonsuit was reversed for reasons appearing in the opinion by Associate Justice Walker, and this opinion having' been certified down, the case was tried on the issues of title, trespass on the part of defendants, statute of limitations, and damages. There was evidence on part of plaintiff tending to show title in John Locklear, plaintiff’s intestate, by reason of adverse occupation and assertion of ownership and up to known and visible lines and boundaries covering locus in quo. Evidence contra on the part of defendants.</p> <p>Verdict and judgment for plaintiff, and defendants excepted and appealed.</p>

<p>1. Municipal Corporations — Counties—Order of Court — Necessary Expenses — Mandamus.</p> <p>Mandamus against the county commissioners to enforce the payment of a debt for a necessary expense incurred by the county is the proper and only remedy.</p> <p>2. Municipal Corporations — Homicide—Trials—Necessary Expenses —Chemical Analysis — Costs — Court’s Discretion — Counties— Parties — Constitutional Law.</p> <p>Where a defendant is charged with homicide by means of poison, and the trial judge has ordered a post-mortem examination of the stomach to be made, which was accordingly done, -and resulted in the discharge of the defendant, and the taxing of the cost of the analysis against the county: Held, the cost of the analysis was a reasonable county expense, resting within the sound discretion of the court,'and binding upon the commissioners.</p>

<p>1. Theaters and Shows — ¡Fairs—Danger—Warnings.</p> <p>It is tbe duty of tbe managers of a fair upon whose premises a free balloon ascension is given as an attraction, to see that tbe premises are reasonably safe for tbe purpose, and they must use care and diligence to prevent injury, and by policemen or other guards warn tbe public against dangers tbat can reasonably be foreseen.</p> <p>2. Same — '“Free Attractions” — Trials — Evidence — Questions for Jury — Nonsuit. ■</p> <p>In an action against a fair association to recover damages for mental anguish suffered by one who bad paid tbe admission price, there was evidence tending to show that while tbe plaintiff was looking at the preparation for a balloon ascension, given as a “free attraction,” be was requested by tbe one in charge to assist in holding the ropes attached to the balloon, and after doing so, and as be was leaving, having gone a few feet, the balloon suddenly ascended, and his foot having caught in a loop of one of tbe ropes attached, he was carried up with it. The evidence was conflicting as to whether the place was properly guarded or inclosed, or as to whether the crowd was warned of the danger in going there. Under the rule applicable as to how the evidence should be considered upon a motion to nonsuit, it is held that such motion was improperly allowed in this case, there being sufficient evidence to take the case to the jury upon the question of defendant’s actionable negligence.</p> <p>3. Trials — Evidence—Nonsuit—Defenses—independent Contractor —Contributory Negligence.</p> <p>In an action to recover damages arising from a personal injury-alleged to have been negligently inflicted, neither the defense that the act complained of was that of an independent contractor nor evidence of contributory negligence will be considered upon a motion as of nonsuit upon the evidence. Semble, from the fact and circumstances of this case, the principal would be responsible, though it were established that the act complained of was that of an independent contractor while giving a balloon ascension as a “free attraction” at a county fair.</p>

Ax^peal by defendant from Garter, J., at February Term, 1913, of Wake. Civil action for damages for personal injuries caused by alleged negligence on the part of defendant company.

Appeal by plaintiff from Peebles, J., at April Term, 1913, of Guilfo'bd. Tbis case was before us at Fall Term, 1912, and is reported in 160 N. C., 335. The facts, as they now appear, are somewhat different from those there stated.

<p>Appeal by plaintiff from Shaw, J., at August Term, 1913, of GrUILFOED.</p>

Appeal by plaintiff from. Cline, J., at April Term, 1913, of Edgecombe. This is an action to recover the amount of an insurance policy, alleged to have been issued by the defendant in March, 1912, on the life of John B. Gardner, in favor of the plaintiff, who was his wife.

<p>Appeal by plaintiff from Ferguson, J., at October • Term, 1912, of Wake.</p> <p>Tbis action was brought to recover damages of tbe defendants for entering upon land and unlawfully taking possession of and detaining certain timber tbereon. Tbe defendants “bargained and sold and conveyed” to tbe plaintiff certain timber described in tbe contract or conveyance, witb tbe right and privilege to cut and remove tbe same within five years from 5 April, 1909. "While tbe contract does not so state, tbe defendants, in their answer, allege that plaintiff was required “to cut tbe timber continuously after once beginning to cut, until tbe cutting of tbe same should be completed, unless while cutting •tbe timber the price of lumber should decline, so that be could not cut tbe timber at a profit,” and that said agreement was omitted from tbe contract by tbe mutual mistake of tbe parties or by tbe mistake of tbe defendants and tbe fraud of tbe plaintiff, and that plaintiff further promised to put up a guarantee fund of $1,000 or give a note for that amount to one James Mjoore, who held a, mortgage on tbe land, to insure the full and faithful performance of tbe contract. Tbis statement of facts, with tbe issues and answers thereto, will sufficiently explain the matters in controversy.</p> <p>Tbe following verdict was rendered by tbe jury:</p> <p>1. Did tbe defendants execute a contract witb plaintiff to sell him tbe timber described in tbe complaint, as alleged' therein? Answer: Yes.</p> <p>2. Was there an agreement between tbe plaintiff and tbe defendant, before tbe execution of tbe written contract, that tbe plaintiff would cut tbe timber described in tbe complaint continuously, after once beginning to cut, until tbe cutting of tbe same was completed, unless while cutting tbe same tbe price of lumber should decline so that be could not cut tbe said timber at a profit, .as alleged in tbe amendment to tbe answer? Answer: Yes.</p> <p>3. If so, was such agreement to continuously cut such timber omitted from the contract by fraud of tbe plaintiff, or by tbe mutual mistake of tbe plaintiff and tbe defendants? Answer: Yes.</p> <p>4. Did plaintiff, at tbe'time of tbe verbal contract, agree to ■pay to tbe defendants tbe sum of $1,000 as-security or guaranty for tbe proper cutting of tbe timber described in tbe complaint, and for tbe full performance of tbe contract between tbe plain-tiff and defendants? Answer: Yes.</p> <p>5. Did plaintiff, at tbe time of and’contemporaneously with tbe execution of tbe written contract, agree with defendants that be would give to Mr. James Moore a note for $1,000, which would be as satisfactory to tbe said Moore as a deposit of $1,000 in money, as a guarantee for tbe performance of tbe terms of tbe contract between plaintiff and defendants, and that failing to give such note to the said Mr. Moore, be would desist from cutting defendants’ timber and remove bis mills-from their lands? Answer: Yes.</p> <p>6. Did plaintiff give such note to tbe said James Moore? Answer: No.</p> <p>7. Did defendants waive tbe giving ■ of such note ? Answer: No.</p> <p>8. Did plaintiff suspend cutting and paying for defendants’ timber after be bad begun to cut tbe same, in violation of bis agreement with defendants? Answer : Yes.-</p> <p>9. Did plaintiff remove from defendants’ lands timber cut thereon before paying defendants for tbe same? Answer: No.</p> <p>10. Did plaintiff cut stumps higher than twenty-four (24) inches; or did be leave logs lying in tbe woods; or timber in tbe tops of trees; or leave timber standing scattered over places partly cut over, in violation of tbe contract witb defendants? Answer: Yes.</p> <p>11. If plaintiff violated tbe contract in any or all of tbe respects mentioned in tbe preceding issue, wbat amount of damages in money did tbe defendants sustain thereby? Answer: Six dollars and 75/100 ($6.75). « ■</p> <p>12. Did plaintiff negligently permit fire to be communicated to defendants’ lands and thereby cau^e damage to defendants’ timber-, wood, undergrowth, etc.? Answer: No.</p> <p>13. If your answer to tbe preceding issue shall be “Yes,” wbat amount of damages did defendants sustain thereby? No answer.</p> <p>14. Did defendants wrongfully and unlawfully refuse to allow plaintiff to reenter upon their lands, and to resume tbe cutting of their timber under said contract, after be bad suspended tbe cutting of tbe same? Answer: No.</p> <p>15. If your answer to tbe preceding issue shall be “Yes,” wbat damage did plaintiff sustain thereby? No answer.</p> <p>Judgment on tbe verdict for tbe defendants, and plaintiff appealed.</p>

Appeal by defendant from Gline, J., at April Term, 1913, Of FRANKLIN. Tbis action was brought to recover damages for criminal conversation with plaintiff’s 'wife -and the alienation of her affections. There was a verdict for the plaintiff, and from the'judgment thereon the defendant appealed, after taking and reserving exceptions.

<p>1. School Districts — Graded Schools — Special Districts — General Taxes — Equitable Division.</p> <p>Hinder the construction of Article IN of our Constitution, higher education is to 'be encouraged as necessary to good government and the happiness of mankind, and there is no constitutional restriction upon a community, which pays a special tax for graded or other schools to establish better school facilities than those imposed generally by statute, from sharing in the equitable division of the general tax levied in the county for schools under the general statute.</p> <p>2. Same — School Buildings — Interpretation of Statutes.</p> <p>Where a graded or other .special school district has been established in a city or town in a county where the school funds exceed $25,000, it is the duty of the county board of education to include in the distribution of the fund reserved for building and repairing schoolhouses in the county allowed by the statute, such just and- equitable part thereof as is required for such purposes within the graded or special school district established in the city. Revisal, sec. 4116, as amended by chapter 149, Laws 1913.</p> <p>3.' Same — Control of Buildings.</p> <p>Revisal, sec. 4116, as amended by chapter 149, Laws 1913, requiring, by interpretation, an equitable distribution to graded or special school districts created for a city, of the fund reserved by the county board of education for building and repairing the schoolhouses of the county, the school fund of which exceeds $25,000, is not in conflict with section 4124, for this latter section only makes certain requirement for the building of the schoolhouses, under the control of county board of education, and’is silent as to the control of the buildings after they have been erected.</p>

Appeal by plaintiffs from Lyon, Jat February Term, 1913, of SAMPSON. This is an injunction against a sale of defendant’s land. W. R. McCullin and James McCullin were indicted for the murder of Jonah Simmons, and were convicted of murder in the second degree. Plaintiff and the widow brought civil suits to recover damages for the killing.

<p>1. insurance, Life — Discriminating Rates — New Contract — Rights of Insured.</p> <p>Where one insured hasaccepted a policy of life insurance upon his own life, stipulating for the annual payment of the premium, which, upon his agreement with the insurer, has been changed to a quarterly payment at the same ratio, and the insurer thereafter has canceled the policy for the refusal of the insured to pay an increase in the. quarterly payment plan, which the insurer charges to all of its policyholders alike, the insured, haying acted in good faith at the time of making the change to the quarterly payment, has the right to refuse to enter into a new contract at the increased premium, .whether the contract he had was legal or illegal.</p> <p>,2. Insurance, Life — Discriminating Rates — Cancellation—Damages— In Pari Delicto — Interpretation of Statutes.</p> <p>Revisal, sec. 4775, providing, among other things, that no life insurance company may afford any special favor or advantage in premium rates to or discriminate among its policyholders, is a restriction applicable to the company; and where the insured has, in 'good faith, entered into a policy contract with the company whereby he has secured a policy at a reduced rate of premium, the parties are not in pwri delicto; and as the statute does not render a contract of this character void, he may recover danSages, upon the cancellation by the company of his policy, for its discrimination forbidden by the statute. -The question of illegality of a policy of this character discussed by Allen, ,T.</p>

Appeal by defendant from 0. H. Allen, J., at February Term, 1913, of DupliN. This is a motion to set aside a judgment rendered at November Term, 1912. The judge found.the following facts: “Summons was issued 4 July, 1910, and personally served by the deputy sheriff on that date, and returned to the August Term, 1910, of the Superior Court of Duplin County.

Appeal by defendant from Daniels, Jat July Term, 1913, of Lee. Tbe plaintiff alleged tbat on or about 1 September, 1910, be, a boy of about 12 years of age, was attempting to cross the 'track of the defendant railroad on Elm Street in Maxton, N. 0., at a public crossing.

<p>1. Statutes — Federal Employer’s Liability Act — Interpretation.</p> <p>Where the Federal Employer’s Liability Act of 1908, as amended in 1910, in an action brought in the State courts to recover damages for a wrongful death, is set up and relied upon in the State courts, the courts of the State will follow the interpretation put upon it by the Supreme Court of the United States.</p> <p>2. Same — “Dependency.”</p> <p>The Federal Employer’s Liability Act of 1908, as amended in 1910, gives a certain right of recovery to the employee for an injury caused by the carrier’s negligence in whole or in part, while the former is engaged in his duties relating to interstate commerce, etc., and “in case of death of such employee, to his or her personal representatives, for the surviving widow or husband and children of such employee; and if none, then of such employee’s parents; and if none, then of the next of kin dependent upon such employee,” etc. Held, it is only necessary to show “dependency” of the beneficiary on the deceased, when his personal representative sues for damages, under the act, in behalf of the remote relatives, termed by the act, “next of kin” ; and not when the beneficiary is the parent, or in the same classification, such as the “surviving widow or husband and children of such employee.”</p> <p>3. Same — Measure of Damages — Trials—Evidence.</p> <p>Where the father of an employee of 'a common carrier is entitled to recover for the death of the deceased, caused by the carrier’s negligence, under the Federal Employer’s Liability Act of 190S, it is for a reasonable expectation of pecuniary benefit from the continuance of the life- of the son; and evidence to sustain an action for such recovery is held sufficient and within the rule, if it tends to show that the deceased was a young man of good habits and character, in good health, and had helped his father and was disposed to» give him his last cent if he needed-it; that the father was growing old, and while not actually dependent on the son for support at the time of the latter’s death, he could not tell how soon he might be. And it is further held, that the amendment of 1910 does not affect this construction, for with reference to the original act, so far as it applies to this case, it only declares that the right of action given therein shall survive.</p> <p>4. Same — Instructions.</p> <p>Where the father of a deceased- employee has been brought within the rule necessary for a recovery, by the personal representative, in an action brought under the provisions of the Federal Employer’s Liability Act, it is error for the trial judge to instruct the jury that the measure of his damages is for the loss of life of the intestate estimated at the present value of his net income for the period of expectancy as ascertained by them, after deducting the cost of living, etc., for in such instances a recovery can only be had for a reasonable expectation of pecuniary benefits to the father from the continued life of the son, under the evidence, for that period.</p>

<p>Appeal by caveator, W. A. Smith, from Peebles, J., at June Term, 1913, of Guilford.</p>

Appeal by defendant from Shaw, J., at September Term, 1913, of Guilford. Tbis action was instituted to recover damages because of an injury alleged to have been received while in the employ of the defendant and through, its negligence.

<p>Appeal by defendant from Bragaw, J., at April Term, 1913, of ElCHMOND.</p>

Appeal by defendant Cumberland Lumber Company from O. H. Allen, Jand a jury at tbe August Term, 1913, of Samp-sow. . Civil action.

Appeal by plaintiff from order vacating an attachment, from ANSON. This is an appeal by the plaintiff from an order of Adams, J., dissolving an injunction and dismissing the action.

<p>Appeal by defendants from Justice, J., at February Term, 1913, of DavidsoN.</p> <p>This is an action to recover the possession of land. Hiram Gobble originally owned it, and while he was owner, his then wife, Arena Gobble, obtained an absolute divorce from him at January Term, 1880. In the decree the court adjudged that alimony, in the sum of .$400 per annum, be paid by Hiram Gobble to the plaintiff, and appointed a receiver, with directions to “pay out of the rents and profits of said land, or the proceeds thereof, the said alimony, according to the terms of the decree,” that is, $400 annually until the death of Hiram Gobble, and $400 annually in four equal quarterly installments thereafter. An order had been previously issued by Judge Graves at 'Fall Term, 1878, restraining Hiram Gobble from selling or disposing of his real or personal property, and appointing the same person as receiver to take charge of the ¡personal property, but not of the land. The receiver was directed in the preliminary order to sell' so much of the personal effects described therein as should be necessary to pay temporary alimony, $10 a month, then allowed by the court. The final judgment varies, as will be seen, from the preliminary order, in this respect, that it omits all reference to an injunction against selling the land, and puts the temporary receiver in charge of it, and the personalty, for the purpose of securing the alimony and its regular payment to the wife, who had secured the divorce, with directions hereinbefore stated. Hiram Gobble married a second time, and in 1892 he and his wife conveyed the land by mortgage, with power of sale, to J. M. Lomax, who> upon default in the payment of the debt secured by it, sold the land, under the power*, and conveyed it to Robert H. Gobble, the purchaser, who died leaving plaintiffs as his heirs. Hiram Gobble died in 1910, and defendants are his heirs. Arena Gobble died in April, 1911. The receiver, who was a brother of Arena Gobble, collected the rents of the land at first; that is, after the first decree of divorce, his sister remaining on the land, as she had done before. The evidence is not clear as to whether he collected the rents all the time. The jury, under an instruction of the court to answer the issue “Yes,” returned the following verdict:</p> <p>1. Are the plaintiffs-the owners and entitled to the possession of the lands described in the complaint? Answer: Yes.</p> <p>2. What damage are plaintiffs entitled to recover of defendants? Answer: $150.</p> <p>Judgment upon the verdict, and defendant appealed.</p>

Appeal by plaintiff from Peebles, J., at May Term, 1913, of ALAMANCE. This action is to recover two items of an account for goods sold and delivered, the first item being of date 26 March, 1909, for $305, and the second of date 26 March, 1909, for $13.50, both being subject to a credit of $63 for goods returned, leaving a balance due of $255.50. The defendant denied the indebtedness and pleaded an estop-pel by judgment.

<p>Deeds and Conveyances — Mental Incapacity — Registration—Heirs at Law.</p> <p>Where a deed, void for mental incapacity of the grantor to make it, is registered prior to one theretofore made by the same grantor, for a valuable consideration, when he had sufficient mental capacity, the registration under the statute, Revisal, 980, can give no effect to the invalid deed, and the valid deed, though subsequently registered, will be effective; nor can the grantee in the invalid deed claim the land as heir at law of the deceased grantor, for the latter has conveyed his title to another.</p>

Appeal by defendant from Shaw, J., at September Term, 1913, of Guilfokd. Civil action tried upon tbis issue: “Is tbe defendant indebted to tbe plaintiff, and if so, in wbat.amount? Answer: $631.63, with legal interest from 30 November, 1910, to present date.” Tbe defendant excepted and appealed.

<p>1.Carriers of Goods — Liability—Insurer.</p> <p>Tlie liability of a common carrier of goods is that of an insurer, and where there is no valid exemption in the contract of carriage, it extends to every loss or damage, however occasioned, unless by the act of God or the public enemy, or some cause or accident without any fault or negligence on the part of the carrier.</p> <p>2. Carriers of Goods — Parol Contract.</p> <p>A parol contract made with the carrier for the transportation of goods is as binding, when established, as a written one.</p> <p>3. Same — ■ Bills of Lading — Negligence — Restrictive Liability — Waiver.</p> <p>Where there is evidence tending to show that a common carrier made a parol contract to transport goods for the shipper, without restricting its liability, and thereafter by mistake the shipper signed a bill of lading purporting to restrict the amount of recovery for damages in consideration of the rate made, and the jury have found under correct instructions from the court that the parol agreement had been made, and there was no waiver thereof by the shipper, the carrier’s liability for damages to the shipment caused by its negligence is ascertained under the parol contract; and the question as to the validity of stipulations in bills of lading, used in interstate commerce, restricting the recovery of damages to an appraised value at the initial point where the contract was made does not arise. '</p> <p>4. Carriers of Goods — Connecting Lines — Negligence — Interstate Commerce — Contract for Delivery.</p> <p>Where a carrier has unconditionally contracted to transport and deliver goods beyond its own line to its destination, it is as liable for the damages caused to the shipment by the negligence of its connecting lines as for negligence occurring on its own line of road; and where the shipment is interstate, the Carmack amendment to the Hepburn Act, making the initial line liable for the negligence of its connecting lines and permitting it a recovery against them, need not, therefore, be considered. •</p>

Appeal by plaintiffs from Webb, Jat June Term, 1913, of SCOTLAND. This is an action in behalf of'certain citizens and taxpayers' to restrain the levying of a tax for schools in Rockdale Public School District, upon the ground that no legal election .authorizing the tax has been held.

<p>1. Liens — Material Men — Filing of Claims — Balance Due Upon Contract — Contract Abandoned — Completion by Owner.</p> <p>It is necessary, to enforce a lien on a building for materials furnished the contractor, that he file with the owner an itemized statement of the amounts due for materials, or the material man give notice to the owner of the amount due him before the owner settled with the' contractor, and theh only to the extent of the amount then due; and when this required notice has not been given before tbe last payment bas been made to tbe contractor, who fails to complete the building, and tbe owner in completing tbe building bas paid out the balance of the contract price, no lien attaches. Revisal, secs. 2019, 2020, 2021.</p> <p>2. Interpretation of Statutes — Proviso—Purview.</p> <p>When a proviso in a statute is directly contrary to the purview of the statute, the proviso is good and not tbe purview, because the proviso speaks the later intention of tbe Legislature.</p> <p>3. Interpretation of Statutes — Restrictive Laws — Strict Construction.</p> <p>Chapter 761, Laws 1911, relative to a lien law applicable to Durham, Rowan, Guilford, and Randolph counties, is local in its nature, and -contrary to the general lien laws of tbe State, and must be strictly construed.</p> <p>4. Interpretation of Statutes — Liens—Material Men — Proviso—Contradictory Terms.</p> <p>Chapter 761,. Laws 1911, enacting a lien law for materials furnished for a building, etc., applying by section 5 only to Durham, Rowan, Guilford, and Randolph counties, provides that it shall-not be enforced in Union or S'tanly counties, with a further proviso that where materials are furnished by any person, etc., out-' side of Union County, “this act shall not apply in the collection of said debt, but the law as it now stands on the statute-books shall apply”: Sold, that the act is contradictory, self-destructive, and void.</p>

<p>Appeal by plaintiff from Peebles, J., at May Term, 1913, of ALAMANCE.</p>

Appeal by defendant from Peebles, Jat April Term, 1913, of GRANVILLE. Tbe defendant, desiring to purcbáse a bouse and lot from the plaintiff, which- were subject to two mortgages, executed by the plaintiff, one in favor of H. M. G-illis for about $900, and the other in favor of W. L. Taylor for about $150, agreed to buy the same for the sum of $25, subject to present encumbrances as stated above.

Appeal by defendant from Peebles, J., at February Term, 1913, of Guilpoed. Civil action tried upon these issues : 1. What sum, if anything, is the -plaintiff entitled to recover of tKe defendant on account of rents as stipulated in the contract? Answer: $2,563.56. 2. Did the defendant commit a breach of his contract by failure to pay rents, as agreed in the contract?' Answer: Yes. 3.

<p>1. Contracts — Debtor and Creditor — Order Upon Creditor — Equitable Assignment — Acceptance—Consideration.</p> <p>An order made by a creditor on bis debtor to pay to another whatever amount may be due, is, when brought to the notice of the latter, an equitable assignment of the debt; and ’where the order is written, specifying a sum certain, and is accepted under an agreement that it will be paid to the extent of whatever amount may be due, an action may be maintained by the payee of the order upon its acceptance, not only treated as an equitable assignment, but as an original promise to pay, supported by the consideration of the release of the debtor from his'former obligation and also of the amount ascertained to be due; the amount thus recoverable bearing interest from the date of the acceptance, if the money is then in hand. As to whether an unconditional acceptance by the drawee, when he owes nothing to the drawer of the order, falls within the statute of frauds, Quaere.</p> <p>2. Contracts — Debtor and Creditor — Acceptance—Trials—Evidence —Instructions—Appeal and Error. •</p> <p>Where the plaintiff sues on the defendant’s acceptance of an order made by a third person, and there is evidence only that the acceptance was upon condition that the defendant would pay whatever amount was due by him to "the drawer, it is error for the judge to charge the jury upon the law, as if it was an unconditional acceptance (Revisal, sec. 535) ; and when this and a correct instruction upon the law of a conditional acceptance are so blended and applied to a single issue that the good one is inseparable from the bad, the error is reversible.</p> <p>3. Trials — Instructions—Issues—Harmless Error.</p> <p>Instructions to the jury should be addressed to specific issues, but semble, where the issues are simple, and, in view of other parts of the charge, they do not appear to have misled the jury, the error in this respect will not be held as reversible.</p>

Appeal by plaintiff from Peebles, J., at March Term, 1913, of Dueham. Civil action to recover damages for physical injuries caused by the alleged negligence of the defendant company in the selection of a fellow-employee. .

<p>Appeal by plaintiff from Bragaui, J., at March Term, 1913, of Lee.</p> <p>Summary proceeding in ejectment under the landlord and tenant act, Eevisal, sec. 2001, etc.</p> <p>At the conclusion of the evidence, the court held that the title to land was in controversy, and that the justice of the peace had no jurisdiction under the landlord and tenant act, and dismissed the proceeding. Plaintiff excepted and appealed.</p>

'Appeal by plaintiff from Peebles, J., at April Term, 1913, of G-RANVILLE. Civil action. There was verdict, judgment for defendant, and plaintiff excepted and appealed.

Appeal by Southern Power Company, garnishee, from Webb. J., at June Term, 1913, of MecxleNbubg. Two actions were commenced before a justice of the peace against the defendants, one in favor of the Oannon-Torrence Company' and the other in favor of H. A. Rhyne, and were tried on appeal in the Superior Court. When the cases were called, they were, by order of his Honor, consolidated and tried together.

Appeal by plaintiff from Peebles, J., at March Term, 1913, of DURHAM. Civil action to recover damages for physical injury caused by tbe alleged negligence on tbe part of defendant company. On motion, duly entered, there was judgment of nonsuit, and' the plaintiff excepted and appealed.

Appeal by plaintiffs from O'. II. Allen, J., at August Term, 1913, of SampsoN. This is a motion for' execution against the person of the defendant, based on the following facts: ’ A. W. Aman was sheriff •of Sampson County in 1901, 1903, and 1905, and he was also, by virtue of his office, the treasurer of the county. He gave bond for the performance of his official duties, the collection of State and county taxes among them, with plaintiff and others as his sureties.

<p>1. Corporations — Condemnation—Fee Simple — Nonuser—Reversion —Interpretation of Statutes.</p> <p>Tbe Legislature has the power to authorize a waterworks company to acquire a fee in lands, and where the charter of such corporation gives the right to condemn land “to its use in the manner now provided. for the condemnation of lands for railroads and other public uses,” and was granted when a statute (see. 20, ch. 62, Battle’s Revisal) was in force, providing “the lands assessed and condemned . . . shall be vested in the company in fee simple,” the charter will be construed, under the provision of the statute, as giving the right to the company to acquire the land in fee, in condemnation proceedings. •</p> <p>2. Corporations —- Waterworks — Condemnation—Fee—Nonuser—Reversion.</p> <p>Where it appears in a proceeding by a waterworks company to condemn lands, that the price assessed and. paid for the lands thereunder was the full value of the fee, which the proceedings purported to transfer, the lands do not revert to the original owner of heirs at law for nonuser of the lands for the purposes for which they were acquired.</p> <p>3. Same — Statutes — Substitution of Uses — Interpretation of Statutes — Constitutional Law.</p> <p>A waterworks company having acquired lands under condemnation proceedings, authorized by its charter, and thereunder paid the full value of the fee, thereafter conveyed them to the city for the purpose of a public park, with authority under a legislative enactment for the change in the use of the lands indicated: Held, that should the waterworks company not have acquired the fee, the Legislature had the power to authorize the substitution of the one public use for the other, and the lands did not revert to the original grantor, or his heirs at law, for nonuser of the lands for the original purpose.</p>

Appeal by plaintiff from OooTce, J.; at June Term, 1913, of ROCKINGHAM. Civil action to recover damages for alleged negligent killing of plaintiff’s intestate. At tbe close of testimony, on motion, there was judgment of nonsuit. Plaintiff excepted and appealed.

Appeal by plaintiffs from Peebles, J., at,May Term, 1913, of ORANGE. Civil action involving title to land. It was agreed tbat tbe judge should find tbe facts. From tbe judgment rendered, tbe plaintiffs appeal.

Appeal by plaintiff from Webb', J., at April Term, 1913, of MECKLENBURG. . This is an action to recover money, and is based upon the following facts: The Forest Hill Eealty Company conveyed to S. M. Hanie a lot in the city of Charlotte, and S. M. Hanie gave to Forest Hill Eealty Company his notes for the purchase money of said’ lot and secured the same by deed of trust to James L. DeLaney.

<p>Appeal by plaintiff from Webb, J., at August Term, 1913, of Caldwell.</p>