Volume 164 — North Carolina Reports

Appeal by defendant from Lyon, J., at chambers, 4 liarch, . 1913; from Polk. This is a proceeding for support. The defendant asked that • issues be submitted to a jury, which were refused, and he excepted. He also offered affidavits containing charges of infidelity against bis wife, wbicb bis’ Honor refused to receive, and be excepted. After bearing evidence, judgment was rendered in favor of tbe plaintiff, and tbe defendant appealed.

Appeal by plaintiff from Justice, J., at Fall Term, 1913, of CLEVELAND. Civil action. At tbe conclusion of tbe evidence tbe court sustained motion to nonsuit, and tbe plaintiff excepted and appealed.

Appeal by defendants' from Cooke, J., at Mareb Term, 1913, of Forsyth. This is an action under tbe Federal Employer's Liability Act, to recover damages for tbe alleged wrongful death of plaintiff’s intestate and son, Leonard C. Ervin, caused by. being caugbt between an engine and a freight caboose in tbe cburse of a switching movement by using a push pole on tbe yards at Rural Hall, North Carolina.

Appeal by plaintiff from Webb, J., at January Term, 1913, of MeCKLENBuRG. Civil action, brought by a broker to recover Ms commissions for tbe sale of lands. At tbe conclusion of tbe evidence tbe court rendered a judgment of nonsuit. Plaintiff excepted and appealed.

Appeal by defendant from Ferguson, J., at June Special Term,- 1913, of Columbus. ■ ' • Tbis action was brought to recover tbe penalty under Re-visal, sec. 1951, for knowingly charging and receiving from plaintiff a greater rate of interest than allowed by law, namely, 8 per cent interest on a note for $3,000. The jury returned the following verdict: 1.

<p>1. Pleadings — Answer—Admissions—Prior Demand — Waiver—Principal and Surety.</p> <p>Where tbe plaintiff brings suit for contribution against a co-surety on a note, alleging bis liability as sucb, and tbat be bad failed or refused reimbursement 'to tbe extent of bis liability to tbe plaintiff, wbo bad paid tbe same, and tbe defendant answers, denying liability, 'and there is no averment tbat demand bad been previously made on tbe defendant, tbe right to a demand is waived by tbe answer, and the statement of tbe cause of action being only defective, is cured.</p> <p>2. Principal and Surety — Cosureties—Equity—Contribution—insol-vency of Principal — Actions—-Interpretation of Statutes.</p> <p>Where it appears tbat tbe principal on a note bas secured his discharge in bankruptcy from bis obligations, including a note paid at maturity by one of two sureties thereon, and that a few months thereafter the surety who paid the note brought bis action for contribution against his cosurety, who has paid nothing, the right of action given by Revisal, sec. 2844, will not, without more, be denied upon the ground that it requires the insolvency of the principal, in such cases, to be shown at the institution of the action.</p> <p>3. (Principal and Surety —Cosureties—Primary Liability — ^Trials— Evidence. 0</p> <p>Evidence that one signing a note with another did so only as “supplemental surety,” with primary liability resting upon his cosurety, is not sufficient which only tends to show that' the cosurety represented that the principal was thoroughly solvent, and there was no danger, and thereupon he indorsed the note as surety with the other one.</p>

<p>1. Landlord and Tenant — Leases—Tenant Holding Over.</p> <p>When a tenant for a year or longer time bolds over and is recognized by the landlord without further agreement or other qualifying facts or circumstances, he becomes tenant from year to year, and is subject to the payment of the rent and other stipulations of the lease as far as the same may be applied to existing conditions.</p> <p>2. Same — Renewal of Lease — Presumptions—Breach by Tenant— Damages. •</p> <p>Where a tenant for a term of years continues to occupy the leased premises after the expiration of the lease, and pays the stipulated monthly rental, which the landlord accepts, and thereafter the landlord asks whether he would desire to renew the lease at an advanced rental, which resulted without further agreement in the continued occupancy by the tenant of the premises, and his continuing to pay the monthly rental in the same amount, the intent of renewing the lease as tenant from year to year is presumed from the circumstances, notwithstanding the tenant declares a different one; and where he leaves the premises before the expiration of the renewed term, he is liable to the landlord for the payment of the rent for the unexpired term, when the latter has used reasonable but unavailing diligence to secure another tenant within that time. Instances in which it is permissible to show a contrary intent to that of a renewal of the lease, where the tenant holds after the expiration of the term, discussed by I-Ioke, J.</p> <p>3. Reference — Conclusion of Law — Appeal and Error.</p> <p>While the finding of a fact in a matter of reference by the court below is conclusive on appeal, the reason does not apply to a conclusion of law upon the facts found: as in this case, a conclusion of law that the tenant had only become a tenant at will.</p>

Appeal by defendant Clark from Lyon, J., at October Term, 1912, of Avery. This is an action for tbe recovery of land,‘and its decision turns upon tbe question wbetber a deed, or instrument in tbe form of a deed and sufficient to convey presently a fee-simple' title in tbe land, to Baymond Bucbanan by C. F. and B. E. Franklin bad been delivered. A second deed was executed by tbe Franklins to tbe defendant W. C. Clark, at bis request, for tbe same land.

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

<p>Appeal by defendant from Cline, J., at July Term, 1913, of Catawba.</p>

Appeal by defendant from Daniels, J., at November Term, 1913, of WayNE. Controversy without action. Held: and for no other. “And it is further provided that should the said Ohestnutt die, refuse to accept this trust, or become incompetent to act, that then in that cáse the said Martha J. Hollowell shall have power to appoint a trustee to hold the property in this deed conveyed ; and it is further provided that the said Ohestnutt or any…

Appeal by defendant, American National Bank, from Adams, J., at April Term, 1913, of BttNcombe. Plaintiff.Model Mill Company, of Johnson City, Tenn., had sold and shipped -goods to the defendant D. H. Webb, at Ashe-ville, N. 0., drew a draft on him for the .price ($62.78) with bill of lading attached, and placed it with the National City Bank of Johnson City for collection.

Appeal by plaintiff from Cline, J., at June Term, 1913, of BubKE. It appears in this- case that the intestate of the plaintiff and R. J. Hodge were walking on the main line of defendant near Bridgewater. They left the main line and went to the pass-track because they saw a train, headed east, at the depot. Trains from, the east and the west passed at that place, and the inner side-track was the pass-track.

Appeal by defendant from Daniels, at April Term, 1913, of Watauga. Civil action tried upon these issues: I. In what amount, if any, is the defendant Mattie J. Greene, administratrix, indebted to the plaintiff H. J. Hardin? Answer : $2,000, with interest on $1,500 from 4 August, 1902. 2. In what amount, if anything,, is defendant M. J. Greene, administratrix, indebted to plaintiff A. W. Beach, administrator? Answer: $419.63, with interest from 2 May, 1892. 3.

<p>Appeal by plaintiff from an order of Daniels, J., rendered at chambers, 1 December, 1913; from Wayne.</p> <p>The General Assembly, at its special session of 1913 (Private Laws, cb. 30), authorized the city of Goldsboro to issue bonds in the total sum of $20,000 for the purpose of completing the enlargement and improvement of its waterworks plant and system, said bonds to run for thirty years, and provided for a specified tax to pay accruing interest and the principal at its maturity. The defendants pr.opose to issue the bonds thus authorized without submitting the question of their issue to the qualified voters of the city. It is alleged by plaintiff, in his complaint, he being a citizen and taxpayer of Goldsboro, that the term of the present members of the board of aldermen of the city will expire in May, 1915; that the population of the city is approximately 8,000 and the assessed valuation of all real and personal property within its corporate limits is approximately four and one-half millions of dollars and' the rate of taxation at the present time 94 cents on the assessed valuation of real and personal property and $2.82 on each poll. Plaintiff asks for an injunction against the issuance of the bonds. The court, upon the pleadings, denied the application, and he appealed.</p>

<p>Appeal by defendants from, Adams, J., at Spring Term, 1913, of TRANSYLVANIA.</p> <p>Tbis is a petition for a certiorari to require tbe judge of tbe Superior Court to settle tbe case on appeal, be baying declined to do so upon tbe ground that tbe defendant bad lost bis appeal by failing to serve bis notice of appeal witbin tbe statutory time.</p> <p>Upon tbe application to settle tbe case, bis Honor found tbe facts and ruled tbereon as follows:</p> <p>1. On tbe last day of tbe term tbe exceptions to tbe report of tbe referee were fully argued1 by counsel, and at tbe conclusion of tbe argument -counsel consented that tbe court might take tbe papers to Asheville and consider tbe. arguments and tbe exceptions.</p> <p>2. After considering tbe evidence, arguments, and exceptions, tbe court prepared a draft of tbe judgment and forwarded it to tbe plaintiff’s attorney in June, requesting him to confer with an attorney for tbe defendant and ascertain whether they could agree on tbe commissioners to be appointed. Nothing was beard from tbe attorneys until after tbe close of tbe courts in tbe Fifteenth Judicial District, and tbe undersigned bad returned to bis borne in Carthage.</p> <p>3. After considerable correspondence, it was finally agreed that tbe judgment might be signed anywhere in tbe. State and 'in vacation.</p> <p>4. Tbe judgment was then immediately signed, and at tbe request of plaintiff’s counsel was sent to him at Hendersonville, together with other papers in tbe cause, on 28 June, 1913. At tbe same time a letter was mailed to W. W. Zachary, one of tbe attorneys for tbe defendant,, at Brevard,'notifying him that tbe draft of tbe judgment originally submitted bad been signed and sent to Judge Ewart, plaintiff’s attorney. W. W. Zachary, attorney,for tbe defendant, bad previously written tbe undersigned that be bad examined tbe judgment, and bad consented that it should be signed, as heretofore stated.</p> <p>5. The judgment and other papers in tbe cause were sent by Judge Ewart to tbe clerk of tbe Superior Court at Brevard, 30 June, 1913, by express, and were received tbe same day by tbe express agent at Brevard, wbo notified tbe clerk of tbeir receipt tbrougb tbe postoífiee, 1 July, 1913.</p> <p>6. On 30tb June Judge Ewart wrote tbe clerk at Brevard to mark tbe judgment filed as of that date.</p> <p>7. Qn 1st July Judge Ewart wrote Mr. Zacbary that be bad sent by express to tbe clerk at Brevard tbe judgment and other papers in tbe cause, and tbat be could, if be desired, serve notice of appeal on Judge Ewart of on tbe plaintiff.</p> <p>8. Tbat tbe papers sent by Judge Ewart to tbe clerk by express were not prepaid, and tbe clerk, for tbis reason, refused to take tbe papers out of tbe express office, and so notified tbe defendant’s counsel. Tbe clerk'afterwards changed bis mind and took tbe papers to bis office on 8th July, but did not notify defendant’s counsel until 12th July tbat be bad done 'so.</p> <p>9. On 17 July tbe defendant caused to be served on Judge Ewart a notice of appeal from tbe judgment, and on 31st July caused its statement of case on appeal to be served upon him.</p> <p>10. On 8 August, 1913, tbe plaintiff’s attorney prepared a “counter-case and exceptions” and placed this paper * in tbe hands of an officer, wbo made tbe following return: “Executed tbe within by reading tbe contents to O. W. Clayton, of Zacb-ary & Clayton, attorneys, for defendant, Tbe Toxaway Company. Tbis 8 August, 1913. J. H. Pickelsimer, Sheriff; by W. H. Harris, D. S.”</p> <p>11. On 13th August tbe plaintiff caused to be served on tbe defendant’s attorney notice tbat be would make a motion before tbe undersigned, a.t Monroe on 25tb August, to “strike from tbe files of tbe clerk and to disallow tbe appeal on tbe ground tbat notice was not given within tbe statutory period.”</p> <p>12. At tbe same time and place, after notice, tbe defendant moved to adopt its statement and to disallow tbe exceptions or counter-case of plaintiff.</p> <p>The court further finds:</p> <p>13. Tbat Judge Ewart reserved and did not waiye bis right to move to disallow defendant’s statement of ease on appeal, by causing tbe counter-case to be served; tbe counter-case containing tbe statement tbat it was “not intended to waive any rights of plaintiff to move to strike appeal from the files of tbe clerk.”</p> <p>14. A letter mailed at Carthage, 28th June, would reach Bre-vard, the residence of Mr. Zachary, in due course before 1st July.</p> <p>15. A letter mailed at Hendersonville, the residence of Judge Ewart, would reach Brevard in due course within a few hours, there being daily trains between these places.</p> <p>16. The court finds no evidence in the record that the defendant, appellant, caused its appeal to be entered by the clerk on the judgment docket.</p> <p>11. The plaintiff did not return the defendant’s statement of case on appeal with his exceptions or counter-case attached or indorsed, and that the same was served as hereinbefore stated within ten days after the appellant’s statement of case was served on appellee.</p> <p>The court further finds:</p> <p>18. Conceding .that the failure of the clerk to take the papers from the express office (although the defendant’s attorney was notified on 1st July that the papers had theretofore been sent to the clerk by express) cannot be _ imputed to defendant as laches, still Mr. Zachary, attorney for- defendant, knew the. contents of the judgment, which had previously and before signing been submitted to him, and had actual notice of the rendition of the judgment by letter from the undersigned, written 28th June, and from plaintiff’s counsel, written 1st July.</p> <p>Conclusion of law:</p> <p>The judgment having been rendered by consent out of term, and in vacation, it was the duty of the defendant, appellant, to take its appeal within ten days after notice of the judgment, and as notice of appeal was served on plaintiff on lYth July, more than ten days after notice of the judgment, and the statement of the case was served on 31st July, the court is of the opinion that neither the notice of appeal nor the statement on appeal was served within the time required by law, and for that reason disallows defendant’s appeal, and orders it stricken from the files.</p>

Appeai, by defendants from Whedbee, J., at'December Term, 1912, of JONES. Controversy submitted upon an agreed state of facts, as follows : •1. That E. 33. Isler, late of the county of Jones, some time before 21 April', 1891, died, leaving a last will and testament, which was duly and regularly admitted to probate in said county, a copy of-which is hereto attached and made a part of the case.

<p>1. Quo Warranto — Attorney-General—Consent—Trials—Correspondence — Evidence—Questions for Court.</p> <p>A letter received, in due course of mail, from tbe addressee in reply to a letter mailed to Mm, is prima facie evidence, without further proof, of the genuineness of the letter so received;. and where a relator, through his attorney, in quo wewraMto, has mailed a letter to the Attorney-General for authority to bring the action, a letter received by mail in reply, apparently from the Attorney-General, granting the request, is evidence sufficient that such consent had been duly obtained, and presents a question of fact for the court.</p> <p>2. Quo Warranto — Election — Returns — Trials — Evidence—Prima Facie Case.</p> <p>In an action of quo warranto, impeaching the result of an election to the office contested, the return of the poll-holders of the result is prima facie evidence of-its correctness.</p> <p>3. Elections — Quo Warranto — Electors—Qualification—Registration —Poll Tax — Interpretation of Statutes.</p> <p>In an action of quo warraanto in which the title to a municipal office depends upon the result of an election held therein, it is competent to show that certain votes for the relator were cast by persons disqualified by nonresidence, and that others east against him were by persons who were ineligible for nonpayment of poll tax, required for valid registration by .Rqvisal, sec. 2949, though these voters had been admitted to registration after challenge.</p> <p>4. Queere: Whether the General Assembly must require the same qualifications for municipal suffrage as for electors in State and county elections.</p>

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

Appeal by defendant from Cooke, J., at November Term, 1913, of Wake. This is a controversy without action, submitted upon the following facts: 1. Several years ago Mrs. Jennie L. Lee, mother of the female plaintiffs and of Harry Lee, the other plaintiff, died leaving a last will and testament, which reads as follows, to wit: ' Wilmette, ILLINOIS, 30 June, 1905.

<p>1. Wills — Widow’s Dissent — Qualification as Executrix — Right Not Barred, When.</p> <p>A widow named in her husband’s will as executrix with other executors, who has qualified, but received no benefits made under the provisions of the will, and who has acted under the advice of her son-in-law, an attorney, and with the assurance of the beneficiaries competent to make them, that she would be further provided for than the will directs, and by her coexecutors that they would use their'best endeavors to procure a more adequate provision for her, is not barred of her right to dissent from the will within six months from the time it had been ascertained that this further provision could not be made; and the position of the executors, that they would not be protected from the claims of minor beneficiaries, under the eirctjmstances in this case, is held a correct one.</p> <p>2. Wilis — Bequests—Vested Interest — Husband and Wife.</p> <p>A bequest for the annual payment of a sum of money to a daughter of a testator, the beneficiary dying after the testator’s death, leaving a husband and children, but no will, is held to vest the interest in the child named, and at her death the payment should be made to her husband.</p>

Appeal by plaintiff from Webb, J., at July Term, ,1913, of’ CLEVELAND. This is a controversy without action, submitted on an agreed statement of facts, and involving the validity of the peddlers’ license statute, section 44 of the Eevenue Act, chapter 201, Public Laws 1913. The plaintiff paid the tax under protest, and has brought this action, against the sheriff to recover the amount paid.

<p>Appeal by plaintiff from Justice, J., at September Term, 1913, of McDowell.</p> <p>Plaintiff sued for damages resulting from personal injury to Himself, alleged to Have been caused by tHe negligence of tHe furniture company, one .of tHe defendants. Afterwards tHe Maryland Casualty Company was made a defendant. THe following order appears in tHe ease: “THe defendant (casualty company) tHen offers tHe affidavit .of L. J. P. Cutlar, wHicH is filed in tHe record together with tHe policies, and tHe same not being denied by affidavit, and tHe court Having found'same to be true, it moves for a bill of particulars making tHe pleading as to tHe contract certain, and tbat tHe pleading be made more definite and certain, wliicb motion is granted and order made tbat plaintiff be required to append sucb contract or copy thereof to the allegation in His complaint relating to said company, and that all proceedings in this cause be stayed until the complaint is so amended.” THe affidavit mentioned simply alleged that two policies, copies of which are attached, were the only indemnity or insurance contracts the company issued during the period stated in them, and one of them was in force at the time of the’ injury. As stated above, the court, upon this simple allegation, required the plaintiff to make His complaint more definite and certain under Eevisal, sec. 496, and also that He .annex thereto a copy of the contract set out in affidavit and exhibit. Plaintiff excepted and appealed.</p>

Appeal by plaintiff from Justice, /./at August Term, 1913, of Euthereoed. Action for malicious prosecution. Defendant bad prosecuted tbe plaintiff before a magistrate for an assault upon him, under tbe following circumstances: Plaintiff was son-in-law of one Dycus, tbe latter having formerly rented land from defendant, and so ploughed it that tbe furrows obliterated tbe boundary line between tbe lands wbicb adjoined.

Appeal by plaintiff from Daniels, J., at May Term, 1913, of Caldwell. Appeal from justice’s court to tbe Superior Court and beard upon tbe following agreed facts: 1. Tbat on 7 July, 1908, ~W. C. Starnes executed a' chattel mortgage to A. S. Abernethy, which mortgage was registered in Caldwell County on 11 March, 1908, in Book X on page 331, and the following is a copy thereof as the same appears of record: State op Noeth OaroliNA — Catawba CouNty.

<p>1. Corporations — Repeal of Charter — Legislative Powers — Constitutional Law.</p> <p>By express provision of Article VIII, sec. 1, of onr Constitution all legislative powers conferred upon corporations are taken by them subject to the legislative power of repeal.</p> <p>2. Statutes, Interpretation — Vested Rights — Condemnation — Summons — Prosecution Bond.</p> <p>In order to acquire a vested right under a statute to condemn lands, which has subsequently been repealed, it is necessary to show a finality by judgment in the proceedings before the later act had become effective; and where it appears that the summons was served in -time, but that the prosecution bond, made a prerequisite by Revisal, 450, was not, no vested right in the former statute can be acquired by the further prosecution of the condemnation proceedings. - .</p> <p>3. Same — Railroads—Water Rights.</p> <p>Chapter 94, Laws 1913, ratified 8 March, 1913, amending chapter 302, Laws 1907, excepts from the provisions of the prior act the. condemnation of “any water-power, right, or property of any person, firm, or corporation engaged in the actual service of the general public, where such power, right, or property is being used or held to be used or developed for use in connection with or in addition to any power actually used by such person, etc., serving the general public.” Held, no vested right was acquired under the acts of 1907 by an “interurban railroad company” so as to except it from the provisions of the act of 1913, which had only issued the summons in condemnation proceedings before the later act had become effective. A vested right could have been acquired only by final judgment prior to the repealing act.</p> <p>4. Condemnation — Trial by Jury — Procedure.</p> <p>While ordinarily a jury trial is not required in condemnation proceedings, except as to the assessment of damages, the general rule does not apply where the pleadings put at issue the question as to whether the character of the lands is such as to be embraced within the right conferred or within an exception to. that right under the terms of a statute.</p> <p>5. Condemnation — Verdict, Directing — Issues of Fact — Appeal and Error — Procedure.</p> <p>Wlxere tlie judge erroneously holds that an issue answered by the jury was a “question of fact” and not an issue of fact, in condemnation proceedings, 'and strikes out the answer found and enters one directly opposite, not as against the weight of the evidence or in his discretion, it will be held for reversible error, and in proper instances the Supreme Court will order that the answer of the jury be reinstated.</p> <p>Walker, J., dissents; Brown, J., concurs in dissenting opinion.</p>

Appeal by defendant from Daniels, J., at April Term, 1913, of Mitchell. Tbis is an action to recover damages for personal injury. Wien tie case was called for trial, tie defendant asked leave to file a plea since last continuance, alleging tlat a guardian lad been appointed for tie plaintiff since tie last term of tie court on tie ground of tie mental incompetency of tie plaintiff.

Appeal by plaintiff from Lyon, J., at May Term, 1913, of HENDERSON. Civil action to recover the amount of certain notes secured by the defendant to the plaintiff for stock in the Bell-Richards Shoe Company.

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

<p>Contracts — Offer—Acceptance.</p> <p>For tbe acceptance of an offer to become a binding contract, it must be absolute and unconditional, and identical witb its terms in all respects; and where an offer to sell lumber is made, and tbe acceptance is for a lower price, witb further specification as to kinds, etc., tbe acceptance is a conditional one, and does not make a contract of sale.</p>

<p>Appeal by plaintiff from Daniels, J., at Spring Term, 1913, of WlLKES.</p> <p>Civil action. From a judgment of nonsuit, tbe plaintiff appealed.</p>

<p>1. Trials — Notes of Evidence — Judge’s Notes.</p> <p>It is not required tbat tbe presiding judge shall take down tbe evidence upon tbe trial of an action, and tbougb Revisal, 554 (2), does require tbat so much.of tbe evidence as may be material to an exception taken shall be reduced to writing and entered by tbe judge upon tbe minutes of tbe court and filed with tbe clerk, tbe judge may require a stenographer or some one else to do so; and where tbe attorney for tbe appellant has been previously informed and given ample time on tbe trial to do this, and bis notes with ^exceptions bave been fully adopted in tbe case on appeal, be cannot be beard to complain either of its insufficiency' or tbe failure of tbe judge to take tbe notes himself.</p> <p>2. Negligence — Trials—Evidence—Measure of Damages.</p> <p>In an action to recover damages for a personal injury, it is competent for tbe plaintiff to testify, tbe regular price for tbe work be was engaged in which tbe defendant promised to pay bim, as an element of damages involving tbe loss of compensation.</p> <p>3. Negligence — Inexperienced Employees — Trials—Evidence.</p> <p>Where damages for a personal injury is alleged to bave been negligently inflicted by a railroad company, tbe negligence alleged being tbat of a fellow-servant, it is competent for tbe plaintiff to testify to a conversation bad by bim and tbe defendant’s foreman, tending to show tbat tbe fellow-servant was inexperienced in tbe work; and while this testimony was beld unnecessary in this case, its admission is beld as immaterial.</p> <p>4. Trials — Negligence—Evidence—Nonsuit—Questions for Jury.</p> <p>In an action to'recover damages for a personal injury alleged to have been negligently inflicted, there was evidence that while the plaintiff was engaged in loading logs for the defendant company, operating a logging road,,the defendant’s log-loader, without any signal or warning, suddenly and unexpectedly jerked the log at which plaintiff was at work, and thus caused the injury complained of by throwing it upon him: Held, evidence sufficient to take the case to the jury, and a motion as of non-suit was properly denied.</p> <p>5. Appeal and Error — Brief—Exceptions Abandoned — Trials—Evidence — Negligence.</p> <p>Exceptions not noted in the brief are taken as abandoned, but held, in this case, the refusal to give an instruction excepted to was not error, as it barred the -right of recovery for an injury inflicted by the unexpected movement of a log resulting from a negligent act of the defendant.</p> <p>6. Fellow-servant — Logging Roads — Interpretation of Statutes.</p> <p>Logging roads are railroads within the meaning of the fellow-servant act, Revisal, sec. 2646, and the provisions of the act apply to an injury negligently inflicted by a fellow-servant in any department of a railroad being operated.</p>

<p>Banks and Banking — Collateral Notes — Provisions as to Future Loans — Creditors.</p> <p>Where a bank takes a note with collateral security whereon it is stated that the collateral hypothecated should not only be held to secure the amount of the note, but any amount that may at any time become due which the pledgor may have borrowed from the bank, with reference to these further loans contemplated the collateral used in their payment is not for a pre-existent debt, but for a present consideration existing at the time of making the loans. Hence, when a bank is the pledgor and has become insolvent and in a receiver’s hands, its creditors can acquire no right to the collateral superior to that of the pledgor thereof.</p>

<p>Master and Servant — Contracts—Independent Contractor — Trials— Evidence — Control by Employer.</p> <p>In determining the liability for a tort alleged by the defendant to bave been committed by an independent’ contractor, the question is determinative as to whether the employer has the right .to control the employee in respect to the work from which the injury arose, whether he exercised the right or not; and where there is evidence of this character of employment and per contra, the, question of independent contractor should be submitted to the jury under proper instructions, and a motion for judgment as of nonsuit denied.</p>

Appeal by defendant from Justice, J., at July Term, 1913, of McDowell. This is an action to recover land. The plaintiffs are tbe heirs at law of A. E. Huddleston. The defendant claims under a deed from the said A. F. Huddleston, and the question in controversy is whether there is any evidence of the delivery of this deed.

<p>Appeal by defendants from Lyon, J., at February Term, 1913, of McDowell.</p> <p>This is an action to remove a cloud from the title to land, described in the .complaint, in which Richard Williams is plaintiff and the Hutton-Bourbonnais Company and fifteen others, including A. G. Olmstead, M. E. Olmstead, and F. L. Bartlett, are defendants.</p> <p>The action was commenced in Burke County, and was removed to McDowell County for trial.</p> <p>' After the complaint and answers were filed and issues joined, the defendant filed the following plea, which was duly verified:</p> <p>.“The defendants filing this special plea, since the last continuance, allege and say:</p> <p>“1. That this action, as they are advised and believe, cannot be maintained, or further prosecuted by the plaintiff, Richard Williams, for that since the commencement of this action a final decree has been rendered in the United States Circuit Court, at Statesville, N. C., and a copy of the same duly filed and recorded and docketed in the office of the Superior Court of Burke County, in an action brought by Herman Bonning-hausen, who is in privity with some of the defendants in this action, and holds the title to the lánds in controversy as trustee for some of these defendants, against Richard Williams, the plaintiff herein, and others, in which it is adjudged that the plaintiff Bonninghausen is the owner of the identical land sued for in this action, and in which the identical grants sued on in this action, to wit, Grant 17,226, dated 9 July, 1908, and Grant 17,302 to Richard Williams, dated 3 February, 1909, are ordered to be delivered up and canceled of record, and that the same under said decree have been duly canceled of record in the office of register of deeds of Burke County, and by said decree, the said R. Williams and each and all persons claiming under or through him are perpetually enjoined and restrained from interfering with, trespassing upon, or asserting any' claim of title to any part of said land within the boundary of plaintiff’s land, as therein established, a copy of which said decree of tbe Circuit Court of tbe United States for tbe Western District of North Carolina is hereto attached and asked to be taken as a part of this special plea.</p> <p>“2. And tbe defendants plead, allege, and aver that in said decree it is specifically adjudged that tbe plaintiff, Herman Bonninghausen — who claims under tbe William and James Erwin and James Greenlee grant, No. 2125, issued in 1795, and by mesne conveyances from said James Greenlee, William and James Erwin, through a special proceeding between their heirs, a trust deed by G.. P'. Erwin, in said special proceeding appointed trustee to Joshua Kidd, and from Joshua Kidd to William Battye and others, and from William Battye and others to the North Carolina. Estate Company, and by judgment of J. M. Barnhardt and others v. the North Carolina Estate Company and others, and from J. M. Barnhardt and others to South Mountain Land Company, and from South Mountain Land Company to A. G. Olmstead, M. E. Olmstead, and E. L. Bartlett, defendants in this action, and through said A. G. Olmstead, M. E. Olmstead, and E. L. Bartlett to the said Herman Bon--ninghausén — is the owner of all the unsold lands in the said Grant No. 2125, and that the said two grants sued on in this action, to wit, Grant 17,226, dated 9 July, 1908, and Grant 17,302, dated 3 February, 1909, both to Richard Williams, are parts of said Grant No. 2125, and are void and ordered tp be delivered up and canceled of record, together with any mesne conveyances under the same, and the said R. Williams perpetually enjoined and restrained from asserting any claim of title to any part of said land in said Grant No. 2125; and these defendants plead the same, a. copy of which is hereto attached, in bar of any further prosecution of this action, and that the said plaintiff herein will be in contempt of the said order and decree of the Circuit Court of .the United States if said action is further prosecuted.</p> <p>“Wherefore these defendants pray that this action be- dismissed and that they recover of the plaintiff and his sureties their costs of the same, to be taxed by the clerk of this court.”</p> <p>■ And the plaintiff filed the following verified reply thereto:</p> <p>“The plaintiff, Eichard Williams, acting by virtue of the leave and direction of the court, appearing in the minutes of. the court of 26 January, 1912, says in reply to the paper filed as an amended answer to the complaint:</p> <p>“1. That reserving his exception entered upon the minutes of the term on 26 January, 1912, to the order allowing the defendants to set up the defense of estoppel as a bar to plaintiff’s action by refiling as an amendment to their answer on said 26 January, 1912, a formal plea rendered since the last continuance filed theretofore1 on 23 December, 1911, purporting to be setting up a decree of the Circuit Court of the United States rendered since the last continuance as a bar to the further prosecution of this action, the plaintiff says he denies that the Circuit Court of the United 'States at Statesville entered and rendered any decree and order in a cause pending in said Circuit Court, wherein it appeared from the record in any such case that the Court had jurisdiction of the subject-matter involved in such controversy, constituting the cause of action, and of the parties thereto, and avers and alleges that it appeared upon the face of the pleadings and upon the evidence offered by the complaint in the suit wherein said decree purports to have been rendered that said Circuit Court did not have jurisdiction of-the parties and subject-matter in said suit, and that the Circuit Court at Statesville had no jurisdiction or .authority to render any such decree, the plaintiff specially • avers and pleads that he is advised, and therefore avers, that a full copy, duly certified, of the whole record in said suit brought by Herman Eonninghausen will show upon inspection of the record of the pleadings in said suit, with exhibits and report of the master, Hayden Clement, together with the evidence reported by him, that the said Circuit Court had no jurisdiction or authority to render the decree purported to be rendered by it, and that said decree set up in said paper filed on 26 January, 1912, is not a bár to the further prosecution of this action, and that it is the right and the duty of this court to disregard the said decree, treat it as null and void, and proceed to hear and try this action by a jury.</p> <p>“2. Tbat the plaintiff denies that the record of the said suit in equity, in which said decree wás rendered, will show upon inspection that the said suit involved a controversy, as alleged, between the plaintiff, Richard Williams, and others as defendants, and the defendants to this action as plaintiffs or complainants, and their privities and estates, as to the title of the land in dispute in this action, and demands that the defendants herein produce and file in this court a certified copy of all the pleadings, with exhibits filed as a part of said pleadings in said Circuit Court of Appeals, together with all interlocutory orders entered in said suit, together with the report of Hayden Clement mentioned in the affidavit of defendants, and all of the evidence accompanying .said report of Hayden Clement to said Circuit Court in said suit as an exhibit to said report; and the plaintiff demands the production of testimony relied on to prove that Herman Bonninghausen, named as plaintiff in the suit wherein said decree purports to have been rendered, was or is a privy in estate as to the land purporting to be described in said decree or the land described in the complaint in this action as that to which the plaintiff claims title.</p> <p>“3. That the plaintiff denies the jurisdiction of the said Circuit Court at Statesville to order that the grant to the land in controversy in this. action be delivered up and canceled of record, and says that since the paper now filed as an amended answer was filed on 23d December in this court, the plaintiff has ascertained that J. T. Perkins, counsel for the defendant, went into the office of "the register of deeds, and, without authority so to do, induced the register of deeds to deface the record of plaintiff’s grants under the pretense of authority so to do contained in said judgment of the Circuit Court of the United States at Statesville, which the plaintiff is advised purported upon the face of the record, pleadings, and exhibits to have been rendered in a cause of which the said court at States-ville had no jurisdiction and no authority to make the said decree binding, and a bar by way of estoppel upon the plaintiff.</p> <p>“Wherefore plaintiff prays judgment:</p> <p>“(1) That be is tbe owner in fee of tbe land in controversy, wbicb is described in tbe complaint. (2) For cost of action. (3) For sucb other and further relief as tbe nature of tbe case may permit and as to tbe court may seem just.”</p> <p>At February Term, 1913, of McDowell County Superior Court tbe defendants moved for judgment upon tbe pleadings. Motion was by consent continued to be beard at Morganton, N. C., and tbe motion came on for bearing 19 March, 1913, and being beard upon tbe pleadings, was denied, and defendants excepted and appealed, and it was ordered that tbe cause remain on tbe civil-issue docket of McDowell Superior Court for trial in its regular order. '</p>

<p>1. Carriers of Goods — Refusal to Deliver — Valid Excuse — Burden of' Proof.</p> <p>Where a consignee brings his action to recover the value of a shipment of goods from the carrier, shows that the shipment was addressed to him, was prepaid, in the carrier’s possession at destination, and a demand for delivery, the burden is on the carrier to show a valid reason for its refusal to deliver the shipment.</p> <p>2. Carriers of Goods — Contracts of Shipment — Parol Contracts.</p> <p>A parol contract of shipment made with a common carrier is valid in law.</p> <p>3. Carriers of Goods — Refusal to Deliver — Demand of Bill of Lading —Valid Excuse — Burden of Proof.</p> <p>The failure or refusal of a consignee to produce, upon the carrier’s demand, a bill of lading -for a prepaid shipment of goods in the carrier’s possession is ordinarily a,valid defense to an action to recover of the, carrier the value of a shipment, which has never been delivered, but the burden is upon the carrier to. prove that such demand has been made and not complied with.</p> <p>4. Same — Fraudulent Transfer — Presumptions.</p> <p>Where a prepaid shipment of goods is in the carrier’s possession at its destination, addressed to the consignee, and he de- . mands delivery thereof to him, he is entitled to the goods, nothing else appearing; for while the- bill of lading is assignable, it will not be.presumed that in a given instance it has been as- • signed, without evidence thereof, and the burden is upon the carrier to prove the consignee’s fraudulent intent in making his demand without producing his bill of lading when such is relied on by it as a reason for refusing delivery.</p> <p>5. Carriers of Goods — Interstate Commerce — Federal Questions— Practice — Penalties.</p> <p>In an action to recover the penalty for .the refusal of the carrier to deliver an interstate shipment of goods, the exception' that such recovery would impose a burden upon interstate commerce must' be taken upon the trial and in the appellant’s brief in order for the Federal question to be made available; but it is Held, that a penalty recoverable for the refusal of delivery and the failure to settle a claim based thereon after the arrival here of the shipment and while in the carrier’s possession, does not raise a Federal question. Revisal, secs. 2633, 2634.</p> <p>6. Carriers of Goods — Penalty Statutes — Actions.</p> <p>A recovery of the value of a shipment of goods and the penalties for the refusal of the carrier to deliver (Revisal, see.-2634) and for the failure to settle the claim within the statutory period, may be united in the same action.</p> <p>Alien, J., concurring; Bbown, J., dissenting in part; Walkee, J., concurring in the dissenting opinion.</p>

Appeal by plaintiff from Cline, J., at July -Term, 1913, of Catawba. This is an action to recover $81.50, the price of certain oil, which the plaintiff alleges it sold to the defendant, which was tried .in the Superior Court on appeal by the defendant from the judgment of a justice of the peace.

Appeal by plaintiffs from order of Carter, J., rendered at chambers, 15 November, 1913 ; from BuNCOmbe. The commissioners of the county of Buncombe, after due compliance with the provisions of Public Laws 1909, ch. 80, as the court finds, ordered a public road to be laid out over the plaintiff's lands. The proceedings were regularly conducted. Plaintiff applied for an injunction against further action by them, and a restraining order was granted.

<p>Appeal by defendant from Cline, J., at July Term, 1913, of Catawba.</p>

<p>1. Master and Servant — Dangerous Work — Assumption of Risk— Safe Appliances — Duty of Master — Negligence.</p> <p>It is the duty of the employer to furnish his employee such tools and appliances to do the work required of him as are reasonably safe, under the rule of the prudent man; and where the character of the work is dangerous, the employee only assumes the risk incident to its dangerous character, and not that caused by the omission or neglect of the employer in the performance of the duties required of him for the employee’s greatest security.</p> <p>2. Same — Trials—Negligence—Evidence—Nonsuit.</p> <p>In an action to recover damages from an employer for a personal injury alleged to have been negligently inflicted upon its employee, there was a motion as of nonsuit upon evidence tending to show that the plaintiff was employed at the time of the injury in unloading coal from a gondola car, opening at the bottom and dumping the coal into the tender of a locomotive beneath; and while he was using a pick for the purpose, as was customary with him, he was peremptorily instructed to use a shovel instead, the latter being a more dangerous method, and in consequence thereof he received the injury: Held, under this evidence, viewed in the light most favorable to the plaintiff, as required, a judgment, of nonsuit was properly disallowed, there being sufficient evidence of defendant’s actionable negligence to take the case to the jury; and, further, there was no evidence of contributory negligence. Orr v. Telephone Oo., 132 N. C., 691.</p>

<p>1. Railroads — Car-load Shippers — Bailment—Negligence—Trials— Evidence — Damages.</p> <p>Where a railroad company has placed a car on its track and turned it over to the shipper to be loaded by the shipper, the relation of bailor and bailee is established between them; and where the car is damaged through the negligence of the shipper’s employees, the shipper is responsible to the company for the amount of such damages.'</p> <p>2. Same — Ownership of Car. '</p> <p>Where under through traffic arrangements a railroad company furnishes its shipper a car .belonging to another railroad company, to be loaded by the shipper, the relation between the two companies is that.of bailor and bailee; and where the shipper, through the negligence of his employees, injures the car, the bailee railroad company may recover the damages from the shipper, though it was not the owner of the car furnished-him.</p> <p>3. Trials — Contributory Negligence — Issues Submitted.</p> <p>It is not error for the trial judge to refuse to submit an issue upon the question of contributory negligence when such has not been tendered by the defendant.</p> <p>4. Railroads — Car-load Shipper — Bailment—Trials—Damages—Evi-</p> <p>dence — Burden of Proof.</p> <p>In such cases, where it is shown- that the car was delivered to the shipper in good condition and 'returned by him damaged, the burden is upon him to show that he had used ordinary care in caring for the property while under his control.</p>

<p>1. Vendor and Vendee — Sales—Merchandise in Bulk — Void Transactions — Interpretation of Statutes.</p> <p>Where the provisions of chapter 623, Laws 1907, regulating the sale of the whole or a large part of a stock of merchandise other than in the usual course of the seller’s business, have not been complied with, in making a. sale of -this character, as to . giving notice to creditors, making inventory or giving bond, etc., the sale is absolutely void, the question of tona fldes in the transaction arising only when the conditions of the statute are met.</p> <p>2. Bankruptcy — 'Partnership Exemptions — Consent of Partner — Jurisdiction.</p> <p>Where one has been adjudicated a bankrupt under the laws of the United States, his right to homestead and personal property exemption -under State laws is to be adjudicated in the bankruptcy court.</p>

Appeal by defendant from Cline, J., at June Term, 1913, of Bubke. Civil action to recover damages for trespass to realty, involving also an issue as to title. Tbe plaintiff introduced tbe following deeds: 1. Deed from H. II. .

Appeal by plaintiff from Gline, J., at July-Term, 1913, of • Mitchell. Civil action, tried upon this issue: “Are the plaintiffs the owners and entitled to the possession of the mineral interests in the lands described in the complaint ? Answer: No.” The plaintiffs appealed from the judgment rendered.

Appeal by defendant from Peebles, J., at May Term, 1913, of ALAMANCE. Civil, action for divorce. Tbe action was to obtain a divorce a vinculo, under section 1561, Revisal, subsection 5 of Pell’s Revisal, by reason of separation of busband and wife existent for ten successive years, etc. Tbe suit was originally instituted in Alamance County by summons dated in 1910, and served, returnable to November Term, 1910, of said court, and complaint tbereon was duly filed.

Appeal by defendant from Ferguson, J., at Fall Term, 19.13, of GRAHAM. Civil action on a money.demand for $700. On issue submitted, tbe jury rendered the following verdict: “In what sum is defendant M. E. Gozad indebted to plaintiff, if anything? Answer: $350.” Judgment on the verdict for plaintiff, and defendant excepted and appealed.

Appeal by plaintiffs from Ferguson, J., at February Term, 1913, of BobesoN. Held: the court affirming the finding, that the claim for the deficiency in the crops varied or contradicted the writing, and, therefore, excluded it from consideration. Evidence as to it was taken under objection by defend-0 ants, but finally ruled out for the reason just given.

Appeal by defendant from. Justice., J., at Fall Term, 1913, of Rutherford. Controversy without action, involving the validity of a proposed bond issue, submitted to Judge M. H. Justice, holding' court in the Eighteenth Judicial District.

Appeal by defendants from Connor, J., at August Term, 1913, Of GrRANVILLE. Civil action, tried upon these issues: 1. Did the defendants execute the note, as alleged, and make the payments down to April, 190Y, as alleged? Answer: Yes. 2. Did the plaintiff sell the stock for $1,500, and apply the proceeds thereof on the note, as alleged in the pleadings, on 25 February, 1913? Answer: Yes. 3. Is the plaintiff’s cause of action barred by the statute of limitations? Answer: No. 4.

Appeal by plaintiff from Garter, J., at October Term, 1913) of Buncombe. Civil action to recover land. At the close of plaintiff’s evidence, on motion, there was judgment of nonsuit. Plaintiff excepted and appealed.

<p>1. Health Laws — Taxation—Cities and Towns — Boards of Health— Dairy Products — Trials—Reasonable Taxation.</p> <p>A tax authorized to be levied by the health board of a city upon those selling milk products therein of $1 upon each cow kept for the purpose is a license tax and not one upon the property ; and when the statute requires that the tax shall be reasonable and applied to the expense of this department, and that the amount received is insufficient for that purpose, the tax will not be held an unreasonable one, without further proof thereof.</p> <p>2. Same — Business Unprofitable.</p> <p>The fact that a vendor of milk in a city is a good business man and has lost money in his dairy business for a certain year-does not establish as a further fact that his losses occurred by reason of an authorized tax of $1 on each cow for that year ordered by the board of health of the city to .be collected, or furnish evidence that the tax was unreasonable when the statute required that it should be reasonable.</p> <p>3. Health Laws — Taxation—Cities and Towns — Boards of Health— Dairy .Products — Reasonable Taxation — Trials—Evidence.</p> <p>Where the unreasonableness of the tax ordered levied by the board of health of a city on each cow used for producing milk to be sold within its limits is brought in question, and it appears that the taxes thus received are inadequate, and the statute directs they shall be applied to the payment of such expenditures, extravagance of the board of health will not be considered in an action brought by the city for the penalty for the violation of its ordinance, the proper remedy being first on application to the authorities to remedy the matter, and then, upon their refusal, and upon proper proceedings, to have the matter determined in the courts.</p> <p>4. Hearth Laws — Taxation — Citips and Towns — Dairy Products— Sale Within the City — Outside Dairies — Sale to One Person.</p> <p>Where authority is conferred upon a city board of health to levy and collect a tax upon each milk cow used for the purpose of selling milk within its corporate limits, the fact that the cows are kept on a dairy farm near to the city and their milk sold to one person within the city, who distributed or sold it therein, will not avoid the collection of the tax on the cows thus used.</p>

Appeal by defendant from Adams, J., at April Term, 1913, of BuNCOMBE. Civil action to establish a parol trust in a tract of land.

Appeal by defendant from Garter, J., at November Term, 1913, of MadisoN.

<p>Appeal by defendant from Shaw, J., at August Term, 1913, of Guilford.</p> <p>Civil action to obtain an injunction restraining defendant from emptying its sewage into Muddy Branch and North Buffalo Creek and to recover damages on account of same.</p> <p>There was evidence on part of plaintiff tending to show that he lived 4% miles east of Greensboro and was the owner of about 434 acres of land lying on or adjacent to North Buffalo Creek and Muddy Branch, a tributary of same, and flowing into North Buffalo Creek above plaintiff’s land. That the land consisted of three tracts. One of 177 acres bought in 1870, lying on both sides of Buffalo Creek, having 20 acres bottom on one side and 30 acres on the other. A second tract of 197 acres adjoining tbe former. This tract does not abut directly upon the creek, but extends at one point to within 10 feet of same, and on this tract plaintiff’s residence is situate, being about one-half mile from the creek. And a 60-acre tract adjoining the others, situate one-half mile from the creek and bought by plaintiff since institution of this present suit. That some time prior to the institution of the present suit the defendant had installed a permanent sewerage system, and was thereby discharging a large portion of its sewage into said streams above the lands of plaintiff, ánd by reason of same large quantities of offensive matter was cast out and upon plaintiff’s bottom-lands, spoiling the grass and other produce of said lands and rendering same for certain purposes unfitted for profitable use, and further causing most offensive smells and odors, thereby creating a nuisance and rendering the said lands, and particularly the home of plaintiff, most uncomfortable, threatening the health of his family and causing great and permanent damage to his property.</p> <p>Plaintiff further,alleged and there was some evidence tend--ing to show that before discharging the sewage into said stream defendant had not subjected the same to proper and adequate treatment or complied with the regulations in reference thereto, and by reason of the city’s negligent default in this respect there had been increase in the damage suffered by plaintiff.</p> <p>The defendant denied the existence of any nuisance, and alleged that if any damage was suffered by plaintiff, it was not near so great as claimed. It was alleged, further, that the defendant had constructed its sewerage system under authority conferred by the Legislature upon the city, and before emptying its sewage into said stream it was adequately and properly^ dealt with and subjected to treatment by septic tanks established and operated pursuant to regulations made by the State Board of Health under an act of the Legislature conferring full power to make the same. See Laws 1909, ch. 793, Pell’s Supplement, sec. 3058 a. By reason of said treatment the said sewage was rendered comparatively harmless and caused no appreciable, damage to plaintiff’s land.</p> <p>It was further alleged that these streams afforded the natural drainage for all that portion of the city’s sewage which was discharged into same, and that there was no increase of the damage by reason of said discharge. And further, that a large part of the conditions complained of were due and owing to the existence of two extensive mill settlements in the northern part of the city, from which the dye-stuffs and other objectionable matter are also emptied into said streams above the lands of plaintiff.</p> <p>There was much testimony introduced in support of defendant’s different positions, and it was insisted that on the facts in evidence no actionable wrong against the city had been shown.</p> <p>The court charged the jury, excluding from their consideration any and all damages claimed by reason of the 197- and 60-aere tracts, it appearing that neither of these abutted on the creek, and the following verdict was rendered:</p> <p>1. Has the plaintiff’s property been damaged on account of the manner and method employed by the defendant in disposing of its sewage in North Buffalo Creek, as alleged? Answer: Yes.</p> <p>2. What permanent damages is plaintiff entitled to recover of the defendant on account of the construction and operation of its said sewerage system and disposal plant? Answer: $1,000.</p> <p>3. Has the defendant constructed its sewage disposal plants upon North Buffalo Creek and Muddy Branch in accordance with plants approved by the State Board of Health ? Answer: Yes.</p> <p>4. If not, did the defendant’s failure to so construct said disposal plants create a nuisance, as alleged in the complaint? Answer:.</p> <p>5. Are said plants being operated in accordance with the rules and directions of the State Board of Health? Answer: Yes, in regard to Muddy Branch. No, in regard to Buffalo Creek septic tank.</p> <p>6. If not, is the manner in which said plants are being operated creating a nuisance, as alleged in the plaintiff’s complaint ? Answer: No.</p> <p>Judgment on verdict tbat plaintiff recover tbe $1,000 and costs, etc., and defendant excepted and appealed.</p>

Appeal by defendant from Long, J., at September Term, 1913, of Eowa-N. Civil action, beard on application to remove tbe cause to tbe Federal Court. Tbe action was to recover damages for an alleged joint tort on tbe part of tbe defendant company, a foreign corporation, and 0. L. Welsh and Julius Eller, two of its resident employees and agents, having: charge and control of tbe company’s operations in tbis State, by reason of tbe negligent killing of plaintiff’s intestate.

<p>Appeal and Error — Failure to Print Record — Briefs.</p> <p>This appeal is dismissed, under the rule, for failure of appellant to print record and brief, and the importance of observing this rule impressed upon the profession.</p>

Appeal by defendant from Daniels, J., at July Term, 1913, of Lee. This is a contest between creditors over the distribution of assets in the hands of A. A. F. Seawell, receiver of the Bank of Jonesboro. The receiver finds and allows a debt due the Banking, Loan and Trust Oompahy in the sum of $15,367.85, and in a subsequent report filed allowed said debt in the sum of $16,581.10 to share pro rata in distribution of assets in his hands.

Appeal by defendant from Cline, J., at May Term, 1913, of WlLSON. This action is to recover $829.71, alleged to be due the plaintiff for lumber delivered and services rendered to the defendant. By consent, the issues raised were tried by a referee, who filed the following report: 1.- That on or about 1 July, 1910, plaintiff and defendant had a settlement and adjustment of their mutual accounts, except as to the “Booth cars” hereinafter noted and explained. 2.

, at May Term, 1913, of Beaueokt. Issue of devisavit vel non tried before bis' Honor, Judge Whedbee, and a jury, at tbe May Term, 1913, of Beaufort Superior Court, upon a caveat filed by Y. R. Cberry and others. This issue was submitted: “Is tbe paper-writing propounded for probate, or any part thereof, and if so, what part, the last will and testament of Alonzo Cherry, deceased?” Answer: “Yes; as a whole.” The caveators appealed.

, at June Term, 1913, of Edgecombe. Civil action, beard on appeal from a justice’s court. Tbe action was 'to recover tbe sum of $13 and interest, being an amount of money lost from a valise wbicb bad been intrusted witb defendant company for shipment from Fayetteville to Tarboro, N. 0., and for a penalty in failing to adjust tbe claim witbin tbe time required by law, as provided by chapter 139, Laws 1911.

Appeal by plaintiff from Justice, J., at May Term, 1913, of New Haeovee. Tbis is an action to recover damages for personal injuries caused, as tbe plaintiff alleges, by the negligence of tbe defendant. At tbe conclusion of tbe evidence, judgment of nonsuit was entered upon- motion of tbe defendant, and tbe plaintiff excepted and appealed.

• Appeal by defendant from Gline, J., at June Term, 1913, of Buexe. Tbis is an action to recover one barrel of beer, consigned to ' tbe plaintiff,' and beard upon an agreed statement of facts. There was judgment in favor of tbe plaintiff, and tbe defendant excepted and appealed.

Appeal by defendant from Ferguson, J., at April Term, 1913, of Columbus. This is an action to recover damages for tbe wrongful ejection of tbe plaintiff from tbe defendant’s train.

Appeal by plaintiff from Qonnor, J., at July Term, 1912, of ÜNSLOW. Tbe only parties to tbis action are J. E. Cavenaugh, tbe plaintiff, and H. A. J arman, tbe defendant.

Appeal by defendant from Ferguson, J., at Fall Term, 1913, of G-kaiiam.

<p>Appeal by defendants from Adams, J., at March Term, 1913, of BtjNcombe.</p>

Appeal by plaintiff from Long, J., at October Term, 1912, of SwaiN. Civil action tried upon this issue: 1. Did the female plaintiff and defendant corporation make the contract as alleged in the fifth allegation of the first cause of action of the complaint? Answer: No. The plaintiff appealed.

<p>Appeal by plaintiff from Lyon, J., at October Term, 1913, of CUMBERLAND.</p>

• Appeal by defendants from Long, J., at September Term, 1913, of MeokleNbueg. This is an-action.brought to obtain the construction of the following will: “I, William A. Potts, of the county of Mecklenburg, State of North Carolina, being of sound mind, do make and declare this my last will and testament:. “1st. I hereby appoint my beloved .wife, Lucy «Thompson, executrix of my estate.

Appeal by Mica Company, interpleader, from Ferguson, J at August Term, 1913, of MacoN. Tbis is a proceeding to sell lands for assets, in which the Standard Mica Company intervened, upon the allegation that it is the owner of the land described in the petition.

Appeal by defendant' from Long, J:, at October Term, 1912, of JACKSON. The plaintiff had a shipment of .cotton-seed meal and cottonseed hulls shipped to him at Barkers Creek from Murphy, N. C. Part of this shipment was lost or was stolen, and the plaintiff filed a claim with the agent'of the defendant at Dillsboro for $14.80, covering that portion of tbe shipment wbicb was lost or destroyed.

•Appeal by defendant from Justice, J., at July Term, 1913, of McDowell. Civil action tried upon these issues: 1. Was the defendant guilty of negligence in respect to- the transmission and delivery of the telegram to Flora Rhyne, as alleged in the complaint? Answer: Yes. ( 2. What damage, if any, has the plaintiff sustained on account of mental anguish, caused by such negligence? Answer: $500. From a judgment for the plaintiff, the defendant appealed.

<p>Appeal and Error — Assignments of Error — Purport of Exception— Appeal Dismissed.</p> <p>Supreme Court Rule of Practice 19, see. 2, requiring the exceptions of record to be grouped and numbered, must be complied with to have the appeal considered by the court; and where the assignments of error each simply refers to the exception of record by number, without giving the purport or text thereof, it is insufficient, and the judgment - of the trial court will be affirmed. •</p>

<p>1. Judgment Suspended — Terms Imposed — Power of Courts.</p> <p>Tbe Superior Court judge may, in bis reasonable discretion, suspend judgment in a criminal action upon submission or conviction of tbe defendant,’ and require tbe defendant to appear from term to term, for the next ensuing two years, and show that he has demeaned himself as a good and law-abiding citizen.</p> <p>2. Same — Indefinite Suspension.</p> <p>A suspension of judgment against a defendant in a criminal action in the Superior Court requiring him to appear from term , to term for the next ensuing two years, etc., is not objectionable as an indefinite suspension of judgment.</p> <p>3. Judgment Suspended — Power of Court — Implied Consent.</p> <p>Where a defendant submits or is convicted of a criminal offense and is present when the judge, in the exercise of his reasonable discretion, suspends judgment upon certain terms, and does not object thereto, he is deemed to have acquiesced therein, and may not subsequently beo heard to complain thereof; and in proper instances it will be presumed that the court exercised such discretion.</p> <p>4. Judgment Suspended — Terms — Costs — Part Compliance — Sentence — Power of Courts.</p> <p>Where judgment against a defendant in a criminal action has been suspended upon payment by him of the costs, and other conditions, such payment is not a full compliance by him with the terms of the suspensions and does not take from the court the power to subsequently proceed to judgment should the defendant violate the further conditions upon which the judgment was suspended.</p> <p>5. Judgment Suspended — Terms—Costs—Alternate Judgments.</p> <p>A suspension of judgment in a criminal action upon payment of costs, requiring the appearance of the defendant at subsequent terms of the criminal court and show that he has demeaned himself as a good, law-abiding citizen, is certain in its terms and not objectionable as imposing alternate duties or obligations.</p> <p>6. Judgment Suspended — Subsequent Sentence — Original Offense— Trial by Jury — Court's Discretion — Appeal and Error.</p> <p>Where judgment in a criminal action has been suspended upon payment of costs, imposing further terms as to the conduct of the defendant, and at a subsequent term of the criminal court the judge finds upon affidavits or otherwise that the defendant has violated the.terms upon which the judgment had been suspended, and passes sentence, the sentence is imposed as a punishment for the original offense of which the defendant stands convicted, and not for the subsequent misconduct, and the proceedings to ascertain whether the defendant has complied with the terms imposed being directed to the reasonable discretion of the judge, are not within the province of the jury, and not appeala-ble unless the judge’s discretion has been grossly abused.</p> <p>7. Judgment Suspended — Subsequent Sentence — Court in Term.</p> <p>Where a judgment has been suspended against a defendant in a criminal action upon certain terms imposed, any further proceedings to ascertain whether those terms have been complied with must be in term and not in vacation.</p> <p>8. Same — Appeal and Error. .</p> <p>This power of the court to suspend judgment upon terms should not be exercised so as to prejudice or embarrass the defendant’s right to review the judgment, and proceedings of the court upon which it is based, by appeal, if he elects to do so.</p>

Appeal by defendant from Lane, J., at April Term, 1913, of HERTFORD. . Tbe defendant was recognized by a justice of tbe peace to appear at tbe next term of tbe Superior Court. In lieu of bond, a certified check for $200 was deposited by bis surety, -tbe Old Dominion Distributing Company. Tbe defendant appeared before tbe Superior Court and pleaded guilty.

<p>1. Constitutional Law — Trial by Jury — Appeal.</p> <p>Where an appeal from a recorder’s court is provided by statute, a jury trial is afforded the accused in the Superior Court, and hence he is not deprived of this, his constitutional right. Art. I, sec. 13.</p> <p>2. Recorders’ Courts — Jurisdiction — Misdemeanors—Definition—Interpretation of Statutes.</p> <p>Where a statute confers original and exclusive jurisdiction on a recorder’s court over petty misdemeanors, the question as to the extent of the jurisdiction conferred is resolved under Re-visal, sec. 3291, which defines the line between felonies and misdemeanors to be that a felony is one punishable by death or imprisonment in the State’s Prison, and that all other crimes are misdemeanors.</p> <p>3. Interpretation of Statutes — Conflicting Terms — Perjury—Constitutional Law.</p> <p>Revisal, 3615, calls perjury a misdemeanor, but makes it a felony by the punishment imposed thereon. Jurisdiction thereof cannot be given to a recorder’s court, where the statute specifies that it shall have jurisdiction of misdemeanors; while the two sections of the Revisal should ordinarily be construed together, yet if one provision is unconstitutional and the other is not, the latter will be held as controlling. Const., Art. I, secs. 12 and 13.</p> <p>4. Constitutional Law — Indictment—Grand Jury — Recorder’s Court —Jurisdiction.</p> <p>The offense of perjury is a felony, and where a conviction thereof is had in the Superior Court, upon appeal from a recorder’s court, without indictment found by tbe grand jury, it is unconstitutional. Const., Art. I, sec. 12. &. v. Cline, 146 N. C., 640, and other like cases, cited and distinguished.</p> <p>6. Statutes — Criminal Law — Jurisdiction—Misdemeanors—Legislative Powers — Cou.rts—Jurisdiction.</p> <p>The Legislature may prescribe different punishments for the same offenses, in different counties, and it may reduce the punishment for all offenses so as to make them misdemeanors; but when the punishment has fixed the grade of the offense, it may not be altered by the' name given it in the statute.</p> <p>Walker and Allen, JJ., concur in result.</p>

Appeal by defendant from Oline, J., at May Term, 1913, of VaNce. Prosecution for larceny. Tlie facts in evidence tended to show that oh a certain Sunday night, 1913, Robert Royster had several letters written, and same were put in envelopes, sealed 'and addressed to the respective parties; that one of these letters so inclosed and sealed was addressed to his father, Spot Royster, Virgilina, Va., and in that one said Robert had put $10 in bills.

Appeal by defendant from Lane, J., at June Term, 1913, of Halifax. Tbe defendant Cobb and Henry Gurkins were jointly indicted and tried for tbe murder of Tbomas Sbaw. During tbe trial tbe State agreed to a verdict of not guilty as to Gurkins. Tbe defendant Cobb was convicted of murder in tbe first degree and sentenced to death. Tbe defendant appealed.

<p>1. Railroads — Lessor and Lessee.</p> <p>A lessee railroad is bound to the observance of any municipal regulation binding upon its lessor..</p> <p>2. Railroads — Charter — Roadbed—Conditions Implied — Cities and Towns — Police Powers — Ordinance—Street Grading.</p> <p>A railroad company in accepting its charter does so upon condition, necessarily implied, that it will conform at its own expense, to all reasonable and authorized’ regulations of towns existing along its route or those which thereafter may grow up thereon, relative to the safe and proper use of the streets and thoroughfares; and where a roadbed of such company lies /dong the streets of a - town, an ordinance is enforcible as within the exercise of the police powers of the town, requiring the railroad, at a reasonable expenditure under the conditions existing, to make the roadbed conform to the grade of the streets and so maintain it with reference to its drain ditches that it may be crossed at all points with ease and safety.</p>

Appeal by defendant from Ferguson, J., at February Term, • 1913, of COLUMBUS.' Indictment for tbe sale of liquor to persons whose names are to tbe jurors unkown. At tbe conclusion of tbe.evidence, tbe defendant requested tbe court to instruct tbe jury to. return a verdict of not guilty. Refused. Defendant excepted. Verdict of guilty. From tbe judgment rendered, defendant appealed.

<p>1. Spirituous Liquor — Unlawful Sale — 'Possession — Prima Facie Case — Burden of Proof — Interpretation of Statutes.</p> <p>Chapter 44, Laws 1913, making it unlawful, with certain exceptions, for any person, etc., to keep in his possession for the purpose of sale, spirituous liquors, etc., enacting that the possession of more than one gallon thereof shall constitute pr/imia, faoie evidence of t.he violation of the statute, does not relieve the State from the burden of the issue and of proving that the one in whose possession more than one gallon of whiskey was found, under its “search and seizure” provision, and who was indicted and tried under this statute, was guilty of the violation of the law, beyond a reasonable doubt, and while the prima facie case, unexplained, is sufficient to sustain a verdict of guilty, yet the defendant is not required to show, by the greater weight of the evidence, that the whiskey was in his possession for lawful purposes, for such, in effect, would require him to establish his own innocence, and relieve the State of the burden' of the issue, which - is placed upon it.</p> <p>2. Spirituous Liquor — Burden of Proof — Prima Facie Case — Instructions, Conflicting — Trials.</p> <p>Where a defendant is tried for the violation of the prohibition laws of this State, under chapter 44, Laws 1913, making the possession of more than one gallon of spirituous liquor prima facie evidence of its violation, an erroneous instruction which placed upon him the burden of showing that he did not have the spirituous liquor for an unlawful purpose, is not cured by also placing the burden upon the State to show that he. was guilty of the offense charged beyond a reasonable doubt.</p> <p>3. Spirituous Liquor — Unlawful Sale — Principal and Agent — Trials —Questions for Jury — Interpretation of Statutes.</p> <p>It is- not in violation of our prohibition law for' one to receive here money from another as his agent and go to another State by private conveyance or otherwise, and purchase spirituous liquor there, and deliver it here, when his act as agent is 'bona fide (Revisal, sec. 3634) ; and he is entitled to receive a reasonable compensation, at least, for the services thus rendered, but not as any part of the purchase price, the intent and the true • nature of the transaction, in proper instances, being questions for the jury under instructions from the court on the law applicable. . . .</p> <p>4. Same — Instructions.</p> <p>Upon a trial for a violation of our prohibition law, there was evidence tending to show that the defendant was found in possession of eleven gallons of whiskey, which possession, under chapter '44, Laws 1913, was made prima facie evidence of an intent to unlawfully sell the same or of keeping it for sale, contrary to the statute. There was evidence in behalf of the defendant that he had received from each of ten customers at his store the price for one gallon of whiskey, for which he agreed to go to Virginia and make the purchase as their agent, charging 25 cents a gallon for his services as such. He was returning from his trip with eleven gallons of whiskey, having purchased One gallon for his own use, when he was seized and searched and the whiskey was found- in his possession: Reid, it was reversible error for the court to instruct the jury that the defendant must show by the preponderance of the evidence that he was acting tona fide as the agent for others, as testified, in order to acquit him.</p> <p>5. Spirituous Liquor — Offense Charged — Conviction—Constitutional Law.</p> <p>Where one is indicted for the sale of spirituous liquor, and tried under chapter 44, Laws 1913, making possession of a certain quantity prima fade evidence of a guilty purpose in having it, he may not be convicted under the provisions of chapter 133, Laws 1911, known as the “Club Act,” for it would be a violation of his constitutional rights to charge him with thé commission of one crime and convict him of a different one.</p> <p>6. Criminal Law — Burden of Proof — Directing Verdict.</p> <p>The burden of proof being on the State to show that a defendant committed the criminal offense with which he stands charged, it is error for the court, under any circumstances, to direct a verdict of guilty.</p> <p>Allen, J., concurring;’Clark, C. X, dissenting.</p>

Appeal by defendant from- Lane, J., at July Term, 1913, of Eokstth. This was indictment for capital offense of burglary. There was evidence on the part of the State tending to support the charge as made. Evidence contra on part of defendant. The court, among other things, charged the jury that on the bill of indictment and testimony they could render either of. three verdicts : 1. Guilty of burglary in the first degree. 2.

<p>1. Court’s Discretion — Witnesses Recalled — Appeal and Error.</p> <p>Where a witness in an action has been examined and cross-examined, it is within the discretion of the trial judge to permit his recall at the request of one of the parties, and his refusal to do so is not reviewable on appeal.</p> <p>2. Homicide — Outside Influences — Appeals to Feelings — Trials—Instructions.</p> <p>Where upon the trial for murder the circumstances warrant it, it is not error for the judge to instruct the jury that the father and mother of the prisoner had a right to be in court, but that the jury should not consider them, it appearing from his further charge that this instruction was to eliminate any appeals to. the feelings of the jury in their behalf, in making up their verdipt.</p> <p>3. Trials — Statement of Contentions — Objections—Appeal and Error — Practice. ,</p> <p>An incorrect statement by the trial judge of a contention of the appellant will not be held for error when it does not appear that his counsel called it to the attention of the court at the time and that the judge failed or refused to make the proper correction.</p> <p>4. Homicide — Facts at Issue — Evidence—Killing by Another.</p> <p>The question at issue upon a trial for murder, where the killing is denied by the prisoner, is whether the prisoner killed the deceased as alleged, and it is not allowable to show by circumstances or insinuations that some one else had done so.</p> <p>5. Homicide — Witnesses—Father and Mother — Weight of Evidence —Trial—Instructions.</p> <p>Where upon a trial for murder the father and mother of the prisoner have testified in his behalf, an instruction to the jury is proper that they may consider the relationship, partiality, and the effect of the prisoner’s conviction on the witnesses, and then to ascertain what influence that would have on the truthfulness of their evidence, and to ascertain, under all the circumstances, the weight this testimony should be given.</p> <p>6. Homicide — Murder—Defendant a Witness — Trials—Instructions— Weight of Evidence.</p> <p>Where upon a trial for murder the prisoner has. testified in his own behalf, it is not error for the judge to comment upon the history of such evidence before 1881, when it was inadmissible, and afterwards, it appearing that he immediately thereafter correctly charged as to the scrutiny testimony .of this character should be subjected to by them, and that after considering it the jury should determine, as best they could, his interest in the result, and then to give his testimony that weight and effect which, under all the circumstances, they thought it entitled to; and should they believe the prisoner told the truth, it was their duty to give “his testimony the same weight and effect you would give to the testimony of any disinterested witness.”</p> <p>Walker, J., concurring in result; Brown, J., concurs in concurring opinion.</p>

Appeal by defendant from Brwgaw, J., at May Term, 1913, of Durham:'.

Appeal by defendant from Ferguson, J., at May Term, 1913, of CUMBERLAND. Indictment for murder. ' On the trial below it was proved that on 15 March, 1912, in Cumberland County, the prisoner, Theodore Lucas, shot the deceased, Gilbert McDougal, with a pistol, inflicting wounds from which he shortly died.

<p>Appeal by defendant from Brag aw, J., at March Term, 1913, of UNION.</p>

^ Appeal by defendant from Webb, J., at April Term, 1913, of MeOKLENBTTRG . Tbe defendant was charged before J. L. Brown, a justice of . the peace, upon the affidavit of a police officer, with the crime of having in his possession, on 18 January, 1913, more than 2% gallons of intoxicating liquor for the purpose of sale, and with keeping intoxicating liquor for the same purpose.

Appeal by defendant from Long, J., at July Special Term, 1913, of EaNdolph.

<p>Appeal by State from Webb, /.,>at September Term, 1913, of LINCOLN.</p>

' Appeal by defendant from Long, J., at July Term, 1913, of RANDOLPH. . Tbe defendant was indicted in tbe Superior Court of .Randolph County for tbe murder of John M. Armstrong, the. homicide having been committed on 24 March, 1913. The trial took place at July Term, 1913, when defendant was convicted of murder in the second degree, and was sentenced to imprisonment for twenty-five years.

<p>Appeal by defendant from Lane, J., at August Term, 1913, of ROCKINGHAM. •</p> <p>Indictment for murder. Tbe defendant was convicted of murder in tbe first degree and sentenced to death. From tbe judgment pronounced, be appealed.</p>

Appeal by defendant from Adams, J., at May Term, 1913, of BUNCOMBE.

<p>1i Criminal Law — Landmarks—Indictment—Variance—Evidence.</p> <p>Tbe question of variance between tbe proof and tbe indictment should be raised upon tbe trial, and is not tbe subject of a motion in arrest of judgment.</p> <p>2. Criminal Law — Boundaries—Stakes—Landmarks—Interpretation of Statutes.</p> <p>Stakes placed by tbe agreement of tbe parties to mark tbe boundaries between tbeir lands bave evidential value in connection with other evidence in locating tbe lands, and are landmarks as contemplated by Revisal, sec. 3674, prohibiting tbeir removal.</p>

Appeal by defendant from Lyon, J., at June Term, 1913, of Edgecombe. Criminal proceeding. Tbe defendant was convicted and sentenced to twelve months on tbe roads, and appeals.

Appeal by defendants from Connor, J., at July Term, 1913, of WASHINGTON. The defendant was tried and convicted under tbe Search and Seizure Law for having spirituous liquors in his possession for the purpose of -sale, on a warrant issued by a recorder.