Volume 165 — North Carolina Reports

<p>1. Railroads — Duty of Trespasser — Frightened Child — Contributory Negligence — Evidence.</p> <p>Tbe doctrine that an engineer of a moving train has the right to expect a trespasser on the track ahead to step from the track to a place of safety when he is apparently in possession of his faculties, and the conditions will allow, has no application to a • child 10 years of age upon the' track, apparently so -frightened as to be incapable of exercising this degree of care for its own safety.</p> <p>2. Same — Negligence—Trials—Nonsuit—Instructions.</p> <p>Where there is evidence tending to show that an engineer on a train consisting of an engine and two cars, 'running 7 or 8 miles an hour, has failed to keep a lookout ahead, and through this neglect he has failed to see a 10-year-old child on- the track ahead, in time to have stopped the train to avoid killing it, the child apparently so frightened as to have lost the degree of care which should have caused him to leave the track; and also failed to see the signals for him to stop the train, given by another person ahead, near the track; the contributory negligence of the child will not bar the'right of his intestate to recover for his negligent killing thus caused; and the question of defendant’s negligence is one for the jury under proper instructions from the court. The charge in this case is approved. .</p>

Appeal by defendant from Qormor, J., at September Term, 1913, of ÜVÍARTIN. Civil action, tried upon these issues: 1. Was the plaintiff’s boat injured by the negligence of defendant, as alleged? Answer: Yes. 2. If so, what damage did plaintiff sustain? Answer: $250. From the judgment rendered, defendant appealed.

<p>1. Déeds and Conveyances — Boundaries—Evidence—Declarations.</p> <p>Declarations are competent as tending to show tbe lines and corners stated in a deed, when the declarant is dead at the time they were offered in evidence, when made by him before a controversy had arisen as to the boundary, and when he was disinterested at the time he made them.</p> <p>2. Same — Adjoining Owner — Interest.</p> <p>Declarations made by an adjpining owner of lands to the . locus in quo of corners and boundaries are not incompetent when not made in his own interest, and otherwise competent.</p> <p>3. Deeds and Conveyances — Boundaries—General Reputation — Remoteness — Evidence.</p> <p>• Evidence of general reputation is competent in the location of private boundaries if the reputation had its origin at a time comparatively remote, had existed before the controversy, and attached to some monument of boundary or natural object, in this case a holly tree; and a period of forty years is held to be-remote within the meaning of the law.</p> <p>4. Same — Corroborative Evidence.</p> <p>Where declarations of the location of a corner or boundary-stated in a deed is sufficiently remote and otherwise competent, evidence of a doclaibtion subsequently made is competent in corroboration.</p> <p>5. Deeds and Conveyances — Boundaries — General Reputation — Ownership of Lands — Evidence.</p> <p>While evidence of , reputation may be competent to locate a corner or boundary given in a deed, it cannot be admissible to prove ownership- of the land.</p>

Appeal by defendant from Bragcm., J., at November Term, 1913, Of PASQUOTANK. This is a proceeding under chapter 140, Private Laws 1907, as amended by chapter 163, Private Laws 1909, to condemn land fpr school purposes. All the issues and questions of fact were found in favor of the petitioner, and judgment was rendered condemning the land, and awarding the defendant $3,000, to which he excepted and appealed.

Appeal bv defendant from Connor, J., at October Term, 1913, of Edgecombe. Civil action, tried upon these issues : 1. Was the plaintiff Norman Forbes injured by the negligence of the defendant, as alleged in the, complaint ? Answer: Yes. 2. Did the plaintiff Norman Forbes contribute to his injury by his own negligence? Answer: No. 3. What sum, if any, is plaintiff Norman Forbes entitled to recover as damages? Answer: $2,500. 4.

Appeal by defendant from Connor, J., at October Term, 1913, of Edgecombe. This is an action to comgel the execution of a parol- trust.

<p>1. Estates — Remaindermen — Right of Action — Life Estate — Real Party in Interest — Interpretation of Statutes.</p> <p>The remaindermen have no right of possession in lands during the lifetime of the first taker, and during that time their action to recover the land will not lie, the statute requiring it to be brought by “the real party in interest.” Revisal, sec. 400.</p> <p>2. Same — Tax Title.</p> <p>The plaintiffs, being remaindermen, may not recover the lands during the continuance of the life estate, and the court will not consider -whether the defendants’ tax deed for the lands sold would bar the plaintiffs’ right to recover, should they have had a cause of action.</p>

Appeal by defendant from Brag aw, J., at November Term, 1913, of PasquotaNK. This action was brought to recover damages for injuries alleged to have been sustained by the plaintiff and caused by negligence of defendant. Plaintiff was employed in operating a machine for making shingles.

Appeal byplaintiff from Oonnor, J., at July Term, 1913, of. WASHINGTON. “Tbis cause coming on to be beard on appeal by tbe drainage commissioners from tbe order of tbe clerk of tbe Superior Court allowing tbe parties, represented by W. Ml Bond, Jr., and W. M. Bond, Sr., to file objections and exceptions to tbe final report and preliminary reports in tbis cause, and said appeal being beard: It is considered and adjudged by tbe court that tbe clerk in allowing objections,…

<p>1. Drainage District — Bond Issues — Time of Objections — Actual Notice — Publication in Newspaper — Interpretation of Statutes.</p> <p>It is not necessary to the validity of bonds issued by a drainage district under the provisions of chapter 442, Public Laws 1909, amended by chapter 67, Public Laws 1911, that the notice of the time of hearing objections to the final report of the engineer and- viewers was not published in some .newspaper of general- circulation in the county, when it appears that no newspaper was published therein, or'elsewhere, which has a general-circulation in the county, and that the landowners affected had actual and ample-notice of such time and raised no objection.</p> <p>2. Drainage District — Liberal Construction — Interpretation of Statutes.</p> <p>The drainage laws apply to the whole State, and by the express provision of section 37, chapter 442, Public Laws 1909, they should be liberally construed to promote the leveeing,- ditching, draining, and reclamation of wet and overflowed lands.</p> <p>3. Drainage Districts — Objection — Publication in Newspaper — Waiver — Consent—Interpretation of Statutes.</p> <p>■ Where the purchaser of bonds issued under Public Laws 1909, ch. 442, amended by the Public Laws 1911, ch. 67, protest their validity on the ground that no 'notice of the time of hearing of objections had been published in a newspaper, and it appearing that the landowners affected. had full and ample actual notice thereof, and publication could not be made because no newspaper was published in the county or had a general circulation therein, the failure of such* owners to pay to the county treasurer the full amount for which their lands are liable, publication being made in accordance with the amendatory act, sections 9 and 10, will operate as a waiver of their rights io contest the validity of the bonds, and the purchaser of the bonds is in no better condition to resist their validity, and all parties to the proceedings are held to have consented to the issuance.</p>

<p>1. Deeds and Conveyances — Location of Lands — Evidence—Appeal and Error — Harmless Error.</p> <p>Where the controversy concerning lands depends upon whether-the loom in quo was contained within the description of plaintiff’s deed, a question asked a witness, by the defendant, whether the lands were not contained in a deed made to him, is incompetent, as the deed will speak for itself, and was otherwise immaterial ; and in this case the error, if any, in excluding the question was cured by the introduction of the witness’s deed.</p> <p>2. Evidence — Communications — Insane Persons — Interpretation of Statutes.</p> <p>When the wife of an insane person sues under his dged and title to lands in dispute, testimony of a witness of conversation he had with the husband as to his claim to the lands is incompetent. Revisal, see. 1681.</p> <p>3. Same — Hearsay.</p> <p>In an action by the wife to recover lands under a conveyance made to her by her husband, since insane, testimony of a son as to the claim of his father to the lands, prior to his deed, in a conversation between them, is incompetent as hearsay, and forbidden by statute. Revisal, see. 1631.</p> <p>4. Deeds and Conveyances — Location of Lands — Adverse Possession —Instructions.</p> <p>Where the plaintiff claims the land in dispute upon the sole-ground that it was contained in the description of her deed, whidh was the only controverted matter, it is not error for the court to refuse defendant’s prayer for special instruction upon the sufficiency of the plaintiff’s evidence of adverse possession to ripen title.</p> <p>5. Deeds and Conveyances — Descriptions—Boundaries.</p> <p>In this action- to recover lands and for trespass the failure of the Zooms in quo to bound on the other lands described in the deed is not held to be a fatal defect, under Austin v. Austin, 160 N. 0., 369.</p>

Appeal by plaintiff from Connor, J., at October Term, 1913, of Edgecombe. Civil action for divorce a mensa et thoro. At the close of the evidence, the - defendant moved for judgment of nonsuit upon the ground that the evidence was insufficient to be submitted to the jury. The motion was allowed, and the plaintiff appealed.

<p>Appeal by plaintiff from Bragaw, J., at October Term, 1913, of BEAUFORT. •</p> <p>Civil action to correct mistake in .deeds and to recover damages for tbe alleged'wrongful cutting of timber.</p> <p>At close of plaintiff’s evidence, on motion of defendant, there was judgment of nonsuit, and plaintiffs excepted and appealed:</p>

<p>1. Limitations of Actions — Adverse Possession — Color of'Title.</p> <p>One who cuts wood upon the lands in dispute at several separate times, without title, is a trespasser upon the lands, and evidence of this character is insufficient to ripen title as adverse possession without “color.”</p> <p>2. Same — Instructions—Appeal and Error — Harmless Error.</p> <p>In an action to recover lands contained in the lappage of disputed division lines between adjoining owners which one of them claims under seven years adverse possession under “color of title,” his prayer is properly refused which leaves out the words “color of title,” seven years without “color” being insuffi-cent; but had the prayer been correct, its refusal by the court is rendered harmless in this case, by the location of the line by the jury in accordance with the contention of his adverse claimant.'</p> <p>3. Deeds and Conveyances — Lines and Boundaries — Estoppel.</p> <p>For an adjoining owner to be estopped from claiming the true divisional line of bis lands, it is necessary for tbe party setting up tbe estoppel to sbow tbat be purchased tbe lands from bim, and tbat there was a contemporaneous running and marking of tbe line; and it is insufficient tbat be only pointed out tbe wrong line at tbe time of purchase from another.</p>

Appeal by defendant from order made by Qormor, J., at chambers, 16 September, 1913; from WASHINGTON. This action' was brought by the plaintiff for the recovery of damages and to enjoin the defendants from cutting on and removing from two certain tracts of land the timber -and undergrowth standing thereon.

Appeal by plaintiff from Bragaw, J., at December Term, 1913, of Beaufort. This is án action by tbe .plaintiff, as stockholder and creditor of tbe defendant fertilizer company, a corporation, for tbe appointment of a receiver and tbe collection and distribution of its assets.

<p>1. Judicial Sales — Estates—Contingent Remainders — Interpretation of Statutes — Constitutional Law.</p> <p>Revisal, sec. 1591, rendering valid judgments authorizing tbe sale of lands wherein there are contingent remainders, is constitutional and valid.</p> <p>2. Judicial Sales — Estates — Contingent Interests — Interpretation of Statutes — Parties—Representation—Application of Funds.</p> <p>A testator devised certain lands to his wife during her widowhood or life, which, at her death, were to be equally divided between the children or “their heirs.” The lands were sold in partition in 1904, during the lifetime, of the widow, and the children were made parties. One of these. children died in 1906, before the death of her mother (in 1909) and her children, the grandchildren of the testator, brought suit to recover their interests in the land devised, claiming they had a vested interest therein in 1904, and not being parties to the proceedings, were not estopped by the judgment in partition: Held, the plaintiffs had a contingent interest in the lands at the time of the sale, and were concluded from claiming the lands under the validating act of 1905 (Revisal, sec. 1591). Semble, even under the common law the representation of the mother was sufficient to bind the plaintiffs, and the purchaser was not required to see to the application of the proceeds of sale. Springs v. Scott, 132 N. G., 564, cited and applied.</p>

Appeal bj defendants from Connor, J., at August Term, 1913, of Nash. Civil action to remove a cloud from title, tried on pleadings and facts admitted. From these facts it appeared that some years prior to institution of this suit one John A. Williams died testate in Warren County, having made his last will and testament, duly admitted to probate, and said will containing, among others, the following items, being those more relevant to the inquiry: “(2) Item.

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

Appeal by plaintiff from Peebles, J., at October Term, 19.13, Of HERTFORD. Tbis is an action to recover tbe value of certain goods alleged to bave been negligently destroyed by fire while in tbe warehouse of tbe defendant. Both parties introduced evidence, and his Honor rendered the following judgment: “By consent, a jury trial was expressly waived, and both law and fact submitted to the judge.

, at September Term, 1913, of WarREN. This was a civil action upon an account for the support and maintenance of the defendant’s intestate, Lucy Thompson, deceased. At the conclusion of the evidence the court sustained a motion to nonsuit, and the plaintiff appealed.

Appeal by defendant from Bragaw, J., at July Term,, 1913, of CAMDEN. This is an action to recover damages for trespassing upon land known as the Whitehead tract, and being Lot No. 12 in the New Lebanon Division. The same ease was before us at a former term, and is reported in 158 N. 0., 161, and involved the claim of the defendant to' an easement or right of way over the land,- for the purpose of operating’ a tramroad and hauling lumber thereon over and across said land.

<p>Appeal by plaintiff from Peebles, J., at tbe Spring Term, 1914, of Halifax.</p>

Appeal by defendant from Peebles, J., at October Term, 1913, of HERTFORD. Civil action beard upon motion by tbe plaintiff for judgment upon tbe pleadings.

Appeal by defendants from Daniels, J., at the October Term, 1913, of WayNe. Civil action tried on appeal from a justice’s court. The aetipn was to recover the sum of $107.27, alleged to be the balance due on sale of a car-load of cotton seed, shipped in car No. 48273, etc.,, plaintiff claiming that the weights of defendants, upon the basis of which plaintiff had been paid, were incorrect to the amount sued for. There was verdict in plaintiff’s favor for. $53.69.

<p>1. Appeal and Error — Supreme Court — Pleadings—Amendments— interpretation of Statutes.</p> <p>The Supreme Court has the power to allow amendments to pleadings (Revisal, sec. 1545) ; and in this action on appeal to recover damages under the Federal Employer’s Liability Act, the plaintiff’s motion to amend tile complaint so as to allege that there are persons living who have a reasonable expectation of pecuniary benefit from the continued life of the deceased, etc., is granted, with leave to defendant to traverse these allegations.</p> <p>2. Railroads — “Kicking Cars” — Flying Switch — Trials—Negligence —Evidence.</p> <p>In railroad parlance, “kicking” a ear' is equivalent to making a “flying switch,” and where there is evidence that the death of a brakeman was caused in this manner while he was engaged in his duties to the defendant railroad company, the violent con- . tact of the car “kicked” with the one whereon he was employed throwing him down to his death, it is sufficient upon the question of.actionable negligence and should be submitted to the jury.</p> <p>3. Railroads — Federal Employer’s Liability Act — “Assumption of Risks” — Trials—Negligence—Instructions—Appeal and Error— Harmless Error.</p> <p>As to whether assumption of risks, under the Federal Employer’s Liability Act, is a defense for ¿ railroad company in an action to recover for the wrongful injury, or death of its employee, Quaere. But in this case, the jury having found the’ issue of defendant’s negligence for the plaintiff, under correct instructions thereon, if there was any error committed by the court in relation to the doctrine of assumption of risks, it was harmless.</p> <p>4. Railroads — Federal Employer’s Liability Act — Measure of Damages.</p> <p>In an action to recover damages of a railroad company for the wrongful killing of its employee, under the Federal Employer’s Liability Act, the measure of damages, where recovery is permitted, is not the present value .of the net earnings, of the deceased based upon his expectancy. The correct rule is laid down in Dooley v. R. R., 163 N. C., 454; Irvin v. R. R., 164 N. 0., 5. .</p> <p>5. Courts — S'et Aside Verdict — Agreement—Offer of Party — Appeal and Error.</p> <p>Where a verdict has been returned by the jury, it is within the province of the trial court alone to set it aside in whole or in part, and it may not' be done only upon the agreement of the parties, without the -consent of the court. Hence, an offer of agreement of one party made to the unsuccessful one, that the verdict be set aside on a certain issue, is held in this case to be ineffectual on appeal to prevent the appellee having a new trial on that issue for errors of law committed in the Superior Court, or having alleged errors committed on the other issues passed upon on appeal.</p> <p>6. Railroads — Federal Employer’s Liability Act — Negligence—Measure of Damages.</p> <p>Under the Federal Employees Liability Act contributory negligence is not a complete defense, but material only in reduction of damages. - „</p>

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

Appeal by defendants from Bragaw, Jv at October Special Term of CueRitucjí. This action was brought to recover the possession of two. wharves or piers, one at Newbern’s landing, and the other at Maud’s, and damages for the trespass in taking possession of the same. The jury, upon issues submitted to them by the court, found for the plaintiff as to the Newbern pier, and for the defendant as*to the other.

Appeal by defendant from Bragaw, J., at October Term, 1914, Of BEAUFORT. Civil action to recover damages for the alleged negligent killing of plaintiff’s intestate.

Appeal by caveator from Whedbee, J., at November Term, 1913, of Pitt. Tbis is an action to caveat a will for mental incapacity of the testator, and for undue influence. •

Appeal by plaintiff from Peebles, J., at November Term, 1913, of Bestie. Civil action, beard on appeal from justice’s court, and on motion to dismiss for lack of proper service of process made on special appearance in tbe Superior Court. There .was judgment- dismissing tbe action on ground stated, and plaintiff, having duly excepted, appealed.

<p>1. Appeal and Error — Second Appeal — Former Decision.</p> <p>Upon a second appeal, the Supreme Court will not rehear and reconsider the questions determined on the former appeal.</p> <p>2. New Trial — Newly Discovered Evidence — Requisites.</p> <p>A motion for a new trial for newly discovered evidence will not be granted when it appears that it was accessible at the trial to the appellant by the exercise of proper diligence; that it was cumulative, and that a new trial would not probably produce a different result.</p>

<p>Appeal by defendant from Daniels, J., at August Term, 1913, 'of "WAYNE.</p> <p>Civil action tried upon these issues:</p> <p>1. Did defendant negligently bum the property of M. 0. Kornegay, as alleged in the complaint? Answer: Yes.</p> <p>2. If so, did M. 0. Kornegay sue defendant Atlantic Coast Line Railroad Company for the total loss suffered by him through said negligent burning, after the payment to him by each of the plaintiffs of the amount of the policies of insurance held by him, as alleged in the complaint ? Answer; Yes.</p> <p>3. Did M. 0. Kornegay, the insured, recover judgment in said action against the said railroad company after the payment to him by said insurance companies for the full amount of the damage to his property? Answer: No.</p> <p>4. Did said M. 0. Kornegay, the insured, recover judgment in said action against said railroad company for the loss covered by said policies of insurance mentioned in the complaint? Answer: No.</p> <p>5. "Was said judgment paid by said Atlantic Coast Line Railroad Company to said M. 0. Kornegay, plaintiff in said action, after the commencement of this action? Answer: Yes.</p> <p>6. Was tbis .action begun.more titan three years after said property was so destroyed by said Atlantic Coast Line Railroad Company? Answer: Yes.</p> <p>1. Was this action begun within three years, after the payment to said M. C. Kornegay by said insurance company of the loss covered by said policies? Answer: Yes.</p> <p>8. What was the value of the property of said M. C. Kofne-gay destroyed by the fire alleged? Answer: $2,854.57.</p> <p>The court rendered judgment against the defendant in favor of the two insurance companies, plaintiffs, and the defendant appealed.</p>

<p>Appeal by defendant from Whedbee, J., at December Term, 1913, of Pitt.</p> <p>. This action was brought to recover damages for negligently failing to ship and deliver to plaintiff certain dry goods and bed-ends with rails attached. The goods were delivered to defendant at Ayden, N. C., and consigned to plaintiff at Newport News, Ya. (via Pinner’s Point, Ya.), where plaintiff was living at the time. The goods were transported by defendant to Pinner’s Point, and there delivered to the Old Dominion Steamship Company, and were carried by it to Newport News. Plaintiff inquired at the office of the steamship company for the goods, and was told that they were not- there. They remained there about six months, as it appears, when plaintiff; after changing his residence from place to place, finally returned to Ayden, and requested the defendant’s agent at Ayden to have the goods reshipped to him at that place. This was done, but when they • were received from defendant at Ayden they were found to be in a badly damaged condition; some of the goods were moth-eaten, and others' were either broken or missing from the package.</p> <p>The court submitted three issues to the jury, and they returned the following verdict:</p> <p>“Did tbe ’ defendant, tbe Atlantic Coast Line Railroad Company, or its connecting carrier, tbe Old Dominion Steamship Company, negligently fail to promptly and safely transport tbe goods of plaintiff in question from Ayden, N. 0., to Newport News, Va., as alleged in tbe complaint? Answer: No. ■</p> <p>“2. If so, wbat damages is plaintiff entitled to recover of tbe defendant by reason thereof? Answer: Nothing.</p> <p>“3. Did tbe defendant, tbe Atlantic Coast.Line Railroad Company, negligently fail to promptly and safely transport and deliver to plaintiff tbe goods in question, after they bad received tbe same from tbe Old Dominion Steamship Company at Pin-ner’s Point, Ya., on the return trip? Answer: Yes; by. reason A. C. L. Railroad. ■</p> <p>“4. If so, wbat damage is plaintiff entitled to recover of defendant by reason thereof.? Answer$200.”</p> <p>There was judgment upon tbe verdict, and defendant, after duly excepting and assigning errors, appealed to this Court;</p>

Appeal by defendant from Peebles, J., at August Term, 1913,. of Halifax. This is an action to recover on a policy of insurance, issued by the defendant upon the life of plaintiff’s intestate by the defendant, and tried upon this issue: 1. Is the defendant, indebted to the plaintiff, and if so, in what amount? Answer: $1,000, with interest from 1 March, 1911. From the judgment rendered, the defendant appealed.

Appeal by defendant from WheAbee, J., at November Term, ■ 1913, of CRAVEN. Civil action to ' recover dam'ages for injuries' to live stock shipped.over road of defendant company. Verdict and judgment for plaintiff, and defendant excepted and appealed.

Appeal by defendant from Whedbee, J., at tbe February Term, 1914, of DupliN. Civil action beard upon tbe following case agreed: It is stipulated and agreed between tbe plaintiffs and defendants that tbis action be submitted to bis Honor, H. W. Wbed- ■ bee, judge presiding, a jury trial having been waived, upon tbe petition of tbe plaintiffs and tbe answer of tbe defendants and tbe facts agreed as hereinafter set out, towit: 1.

<p>Actions — Joint Tort Feasors — Pleadings—Surplusage.</p> <p>Several defendants may be jointly sued for damages for the same tort arising from one and the same transaction, and where such a cause of action is sufficiently stated,' and the complaint further alleges the same tort as to each of the defendants, separately, these further counts will be treated as surplusage. The effect of judgments obtained against joint tort feasors in separate actions discussed by Walker, J.</p>

<p>1. Cities and Towns — Governmental Duties — Liability.</p> <p>A municipal corporation is not liable for torts of its officers done in performance of purely governmental powers for tbe benefit of tbe public at large.</p> <p>2. Same — Jails—Destruction by Fire — Wrongful Death.</p> <p>A town bas performed its imperative duties to its prisoners when it bas properly constructed and furnished its jail or prison, and is 'then not responsible for tbe death of a prisoner caused by tbe destruction of the jail by fire at night, who bad been incarcerated in a helpless, condition and left without some one to look out for him; and it is held that a lock-up of a village of 150 inhabitants, upstairs in a two-story wooden building, with no building nearer than 50 feet, the lower floor used for the town market, sufficiently meets the requirements.</p>

<p>Appeal by defendant from 0. II. Allen, J., at November Term, 1913, of DupliN.</p> <p>This action was brought to recover the possession of a tract of land. On 3 April, 1854, John Wilson conveyed the land to bis daughter, Mary A. Bowen, wife of Stephen Bowen, for life, with remainder to her surviving children. Bowen and his wife then entered into possession of the land and occupied it until two years before they left this State, which was in 1857. They never returned, nor was any claim to the land made by them or their heirs for many' years. About one month after they left the land, John Gibb Fussell entered into possession of the same and cultivated it several years, when he conveyed it to James Wells, 22 January, 1876, and Wells occupied it until 1893, when he conveyed it to his two sons, the defendants in this action, and they have occupied it ever since that time. Stephen Bowen died in 1873, and Mary Ann Bowen, .his wife, in 1885, and plaintiffs are their children and grandchildren and their heirs at law. A witness for plaintiffs, W. H. Fussell, testified, among other things, that the Bowens left John G. Fussell in possession of the land, but that all he knew about it was that John G. Fus-sell “lived there and worked the place,” and he did not mean to say that he knew that Fussell was in possession under them. He afterwards said that he knew Fussell was their tenant, “but he did not know how he knew it,” and “that all he knew was that he lived and worked there.” He also stated, over objection of defendant, that he knew the circumstances and conditions of his possession by hearsay. There was evidence of a long continued adverse possession of defendants and those under whom they claim, and of the disabilities of some of the plaintiffs during that period of time, but it is not necessary to set it out in detail. • . .</p> <p>The jury found for their verdict that certain of the plaintiffs, Sallie Couch and others, owned two-fifths of the land. Judgment on the verdict, and defendants appealed.</p>

Appeal'by plaintiffs from 0. H. Allen, Jat October Term, 1913, of SampsoN. ! Cause beard.on motion to set aside judgment.

Appeal by plaintiff from Connor, J., at October Term, 1913, of Nash. This is an action to recover damages for the loss of a sawmill plant. The plaintiff alleges in his complaint that he is the owner of said plant, which is denied by the defendant.

<p>1. Deeds and Conveyances — Parol Evidence — Partnership Lands.</p> <p>Where each member of a partnership conveys all of his right, title, and interest in and to all assets and lands of the partner-' ship, or to all the assets and property of the firm, it is sufficient, under the doctrine of “id cerium est quod cerium reddi potest,” to admit of parol evidence, in an action involving title to lands, to show that the locus m quo was owned by the partnership, and to-pass the title to the grantee in the deed when it is so established.</p> <p>2. Reformation — Deeds and Conveyances — Pleadings—Evidence.</p> <p>In order to reform a deed to lands upon the ground of mutual mistake or fraud, the proper allegations should be made in the pleading, or evidence thereof is inadmissible. •</p> <p>§. Statute of Frauds — Deeds and Conveyances — Parol Evidence— Trials — Questions for Court.</p> <p>Where a deed, esiiressed in unambiguous language, purports to convey the whole of certain lands, parol evidence that it was the grantor’s intention to only convey a part thereof is inadmissible, the construction of the deed as to its meaning and purport being a question of law for the court.</p>

<p>1. Railroads — Sick Benefit Departments — False Representations— Frauds — Trials—Burden of Proof.</p> <p>In an action to recover the sick benefits álleged to have been due the plaintiff by reason of his membership in the relief department of a. railroad company, defendant resisted recovery upon the ground that the plaintiff, in his application for membership, had made a material and false representation in answer to a question asking if he had had a certain venereal disease, which had resulted in the acceptance by it of the application. It appeared from the application that these questions were prefaced by certificate of the applicant, in effect, that his habits were temperate, “so far as I am aware”; that he had no disease except as is shown in the “accompanying statement,” etc., and to avoid the contract it is Helé, that the defendant must show that the representations were knowingly false or made with a fraudulent purpose to mislead the defendant. Revisal, sec. 4808, has no application to this case.</p> <p>2. Railroads — Sick Benefit Departments — Fraud—Trials—Evidence Sufficient — Questions for Jury.</p> <p>Where resistance to recovery is made by a defendant railroad company in a suit by an employee, a member of its relief department, for sick benefits, on the ground of false and material representations made in his application for membership, and it is required that the intent to misrepresent is necessary to defeat recovery, evidence is held sufficient upon the question of defendant’s liability which tended to show that the plaintiff had been required by the company to join this department, was examined and passed by the defendant’s physician at the time when the disease, alleged to have been misrepresented,'should have been existent and observable; that tbe company bad for a number of months deducted tbe membership dues from tbe plaintiff’s pay, and where tbe plaintiff denies ever having bad tbe disease, and there is evidence tending to show that bis sickness resulted from being overworked in tbe defendant’s service.</p>

Appeal by defendant from Coóke, J., at November Term, 1913, of Wake. This is a petition to rehear the above entitled ease, which was decided at the last term (164 N. C., 128). The facts are stated in the former report of the case, and need not be fully repeated here.

<p>Appeal by defendant from Cline, J., at October Term, 1913, of Catawba.</p> <p>Civil action, beard and determined by consent before bis Honor.</p> <p>On tbe hearing it appeared tbat, plaintiff having bargained a piece of real estate to defendant at tbe price of $1,400 and tendered a deed for same, defendant resisted recovery on tbe ground that tbe title offered is not a good one. On tbe issue presented, tbe pertinent facts and conclusions of law tbereon were declared and stated by tbe court as follows:</p> <p>“First. That in or about July, 1880, Jobn F. Murrill, J. G. Hall, A. M. Peeler, et als. filed articles of incorporation in tbe office of tbe clerk of tbe Superior Court and received a charter from tbe said clerk of tbe Superior Court, incorporating Clare-mont Female College; said,articles of incorporation were filed 28 July, 1880, in tbe office of tbe register of deeds for Catawba County in Book” 14, at page 58 et seq.; tbe said articles are hereby made a part hereof, and will appear in tbe record of this cause; that tbe said parties organized under their said charter, .received and held property, both real and personal, established a female school or college," and they or their successors have maintained and conducted tbe school under said charter without any amendments thereto from that time continuously t'o tbe present.</p> <p>“Second. That on 1 February, 1881, Henry W. Robinson, of Catawba County, now deceased, who was seized in fee óf tbe tract of land in said county hereinafter mentioned, executed and delivered to John F. Murrill, J. G. Hall, A. M. Peeler, et als. a deed for that tract of land fully described therein, now known as tbe Claremont College property, in Hickory, which deed was filed in tbe office of tbe register of deeds, 31 December, 1885, and was registered in Book 2V, page 522, reference to which is hereby made for tbe full terms of said deed and description of property, and copy of which will be found in tbe record.</p> <p>“Third. That on 12 February, 1909, tbe General Assembly of 1909 passed an act to amend tbe charter, which is chapter 58 of the Private Laws of 1909, reference'to which i@ hereby made.</p> <p>“Fourth. That on or about 19 September, 1913, J. L. Murphy, K. C. Menzies, et als., being present trustees of Claremont College, executed as trustees under their hands and seals deed to Claremont College as a corporation, which deed is duly registered in the office of the register of deeds for Catawba County in Book ..., page ..., reference to which is hereby made, and a copy of which will be found in the record.</p> <p>“Fifth. That the plaintiff, Claremont College, prior to the institution of this action, was duly and properly authorized by its board of trustees to sell off certain lots from the tract of land described in the Robinson deed and use the proceeds thereof for advancing the purposes and interests of the' corporation, and that said authority was given in the exercise of the best judgment of the trustees, and the court finds that the same was duly and timely made and given.</p> <p>“Sixth. That prior to the institution of this action the said plaintiff, with proper authority from its trustees, contracted and agreed with the defendant to sell and convey to the defendant that lot fully described in the fourth paragraph of the complaint, and known as Lot No. 1 of the Claremont College plat, prepared by J. E. Barb, surveyor, at the price of $1,400, and the defendant contracted and agreed upon his part to pay to the plaintiff therefor the said sum of $1,400.</p> <p>“Seventh. That prior to the institution of this action the plaintiff tendered to the defendant a deed purporting to convey to the defendant in fee the said Lot No. 1, and demanded the purchase money therefor, but the defendant declined and refused to accept said deed and pay the purchase money therefor, upon the ground that the plaintiff could not make title in fee for said lot.</p> <p>“Eighth. That this action was thereupon begun for the purpose of requiring and compelling said defendant to accept said deed and pay the purchase money to the plaintiff.</p> <p>“Upon the foregoing findings of fact, the court concludes and holds as a matter of law:</p> <p>“First. That Claremont College, the name' being so- changed from Claremont Female College by the General Assembly of 1909, was and still is a corporation, as alleged by the plaintiff, for all the purposes of this action.</p> <p>“Second. That Henry W. Robinson was, prior to and on the first day of February, 1881, seized in fee of the tract of land described in his deed to John F. Murrill, J. G. Hall, A. M. Peeler, et dls., trustees of Claremont Female College, and on, said day conveyed to them as such trustees, their successors and assigns, in fee, the land in said deed described.</p> <p>“Third. That the deed from J. L. Murphy, K. 0. Menzies, and others, present trustees of Claremont College, dated 19 September, 1913, conveys to Claremont College, Incorporated, in fee the eight (8) lots therein fully described.</p> <p>“Fourth. That the' contract and agreement entered into between the plaintiff and defendant was good and valid and en-forcible in law against the defendant, for that Lot No. 1, covered by said agreement, was one of the lots mentioned in the last paragraph above, and the said plaintiff had and. still has a fee-simple estate in said lot, and is able to convey same to the defendant, his heirs and assigns, in fee. ■</p> <p>“Fifth. That the deed tendered by the plaintiff to the defendant is sufficient in form and substance to convey to the defendant in fee the said Lot No. 1.</p> <p>“Sixth. That the plaintiff is entitled to judgment against the defendant for the sum of $1,400, recoverable upon the delivery to him of said deed, and for the costs of this action.” .</p> <p>Judgment thereon for plaintiff, and defendant excepted and appealed.</p>

<p>1. Contracts — Options—Deeds and Conveyances — Statute of Frauds • — Registration—Statutes.</p> <p>An option on lands is a conditional contract for a short period of -time on the part of the owner that upon the payment of the contract price and the performance of the conditions named he •will convey the same to the holder of the option; and while an agreement of this character is not a completed contract to convey the lands, it comes within the statute of frauds and our registration laws.</p> <p>2. Contracts — Options—Consideration—Deeds and Conveyances.</p> <p>The agreed price for lands upon which, an option of purchase has been obtained and the opportunity afforded the owner to sell, form the actual consideration upon which such contracts rest; and a further cash consideration of $5 is adjudged sufficient to bind the contracting parties.</p> <p>3. Contracts — Options — Deeds and Conveyances — Equity—Specific Performance.</p> <p>The holder of a valid and binding option for the purchase of lands is entitled to specific performance of his contract.</p> <p>4. Contracts — Options—Deeds and Conveyances — Tender.</p> <p>Where a valid and binding option for the sale of lands has been registered, and the owner has since then and contrary to its terms sold and conveyed them to another, it is required of the holder of the option, having notice of the conveyance, to" make a lawful tender to the vendee, in accordance with the terms of his option; but where the vendor and his vendee are both parties to the action brought to enforce specific performance of the option, and the latter denies any- rights of the plaintiff to recover, the tender of the agreed purchase price becomes unnecessary.</p>

Appeal by defendant from 0. II. Allen, J., at September Term, 1913, of -SampsoN. This is an appeal from a judgment overruling a demurrer to the complaint.

Appeal by defendant from Lyon, J., at November Term, 1913, of Hoke. Plaintiff, at defendant’s request, agreed to sell 70 acres of land for bim at $2,500, with tbe understanding tbat, if be did so, defendant would convey to bim tbe remaining 4 acres of tbe land.

<p>Appeal by plaintiff from Rountree, J., at October Term, 1933, of New HaNoveb.</p>

Appeal by defendant from Lyon, J., at November Term, 1913, of HoKE.

Appeal by plaintiff from Lyon, J., at September Term, 1913, of CUMBERLAND. Civil action tried upon these issues, viz.: 1. Was the plaintiff injured by the negligence of defendants, as alleged? Answer: Yes. 2. Did the plaintiff, by his own negligence, contribute to his injury? Answer: Yes. 3. Did the plaintiff voluntarily assume the risks and dangers incident to and attendant upon the operation of the edger? Answer: No. 4.

Appeal by plaintiff • from Peebles, J., at September Term, 1913, of Warrest. Action to recover damages for personal injuries alleged to bave been caused by defendant’s negligence, in that plaintiff alighted from a moving train under direction from the porter, and when it was not apparently dangerous to alight. The jury found, upon the issues submitted to them, that defendant was negligent and plaintiff was guilty of contributory negligence.

Appeal by defendants from Coolce, Jat February Term, 1914, of FRANKLIN. Civil action. The court rendered judgment in favor of the plaintiff upon tbe pleadings. Defendant appealed.

<p>Appeal by defendant from OooTce. J., at May Special Term, 1912, of Wake.</p> <p>Civil action to recover for loss of services of a minor, attributed by plaintiff to tbe negligence of defendant company.</p>

<p>Appeal by defendant from Whedbee, J., at October Term, 1913, of Carteret.</p> <p>This is an action, commenced in the Superior Court, to recover the amount of an insurance policy and certain sick benefits which 'had accrued prior to the death of the insured.</p> <p>■The plaintiff alleges that'he is entitled to recover $150, the face of the policy, and $52 sick benefits, and demands judgment for $202.</p> <p>The policy is not in the record, and thfere is nothing to show that the demand' of the plaintiff is not made in good faith.</p> <p>Tbe plaintiff recovered $142, and tbe defendant moves in tbe Supreme Court to dismiss tbe action for.tbat tbe Superior Court did not'bave jurisdiction; contending tbat tbe amount in controversy is less than $200.</p> <p>Tbe defendant, tbe Royal Benefit Society, introduced evidence tending to show tbat Starkey Tillery was more than 55 years of age at tbe time be became ■ a member of tbe Royal Benefit Society. No offer to return premiums received was made by tbe defendant, tbe Royal Benefit Society; no application for membership was introduced as evidence. There was no evidence tbat Starkey Tillery knew of any age limit to become a member, and there was no evidence tbat Starkey Tillery represented what bis age was when be became a member.</p> <p>There were no requests for instructions.</p> <p>Tbe defendant assigns tbe following as errors:</p> <p>1. Tbat tbe court erred in failing and refusing to charge tbe jury tbat if Starkey Tillery was more than 55 years of age-at tbe time be made application for membership in tbe Royal Benefit Society, tbe defendant was not. liable on tbe policy, as tbe same was procured under a misrepresentation of tbe age of tbe said Starkey Tillery.</p> <p>2. Tbat tbe court erred in entering'judgment as set out in tbe record.</p> <p>3. Tbat tbe court erred in refusing to grant a new trial.</p> <p>Judgment was rendered in favor of tbe plaintiff, and tbe defendant appealed.</p>

Appeal by defendant from Daniels, J., at January Term, 1914, of CIbaveN. This is an action, to recover damages for injury to a shipment of potatoes from New Bern, N. 0., to Atlanta, Ga., under a bill of lading to the order of the plaintiff.

Appeal by defendant from Rountree, J., at September Term, 1913, of PeNdee. ' This is an action by E. R. Dallago, administrator of William Dallago, to-recover damages for the negligent killing of his intestate. The defendant in its answer denies that the plaintiff is- administrator, and also denies the allegation of negligence.

Appeal by defendants from Lane, J., at November Term, 1913, of Forsyth. Action to recover damages for injuries caused by tbe negligence of defendant.

AppEAX-by plaintiff from Lane, J., at September Term, 1913, of Forsyth. This is an action by the Morganton Manufacturing and Trading Company and other creditors to enforce liens for materials furnished.

<p>Appeal by.defendants from 0. H. Allen, J., at November Term, 1913, of LeNOIr. ■</p>

Appeal by defendants from Lyon, J., at September Term, 1913, of CUMBERLAND. This action was brought for the cancellation or reformation of a deed, the plaintiff alleging that it conveyed 76% acres of land, contrary to the agreement of the parties that it should pass only 10 acres, and that this was brought about by the fraud of A. R. Wilson, the grantee, and the mistake of Isham Hodges, the grantor, induced thereby.

<p>1. Mortgages — Deeds of Trust — After Acquired Property.</p> <p>A purcliaser at a foreclosure sale under a deed of trust made by a lumber company required by the terms of tbe instrument to be kept in operation and embracing after acquired -property for the period of three years, whether the trustees were in possession or not, gets a good title to timber which had been purchased by the trustor within the period prescribed.</p> <p>2. Trials — Evidence—Records—Certified Copies — Originals.</p> <p>Original records are admissible in evidence, though, in certain instances, certified copies thereof are also admissible; and- in this case it is held that1 the admission of the original was competent to show that a commissioner therein named had knowledge of his conveyance of certain timber to another when .he later attempted to acquire title thereto for himself.</p> <p>3. Trials — Evidence—Void Deeds — Color of Title — Common Sense.</p> <p>A void deed is color of .title for the purpose of'showing that the parties litigant in an action involving- ownership of timber claimed it from a common source.</p> <p>4. Appeal and Error — Harmless Error.</p> <p>It is held in this case, involving the title to certain standing timber, that the unnecessary admission of certain records in evidence, upon the question of title to the lands, was harmless error.</p> <p>5. Deeds and Conveyances — Timber Deeds — Trials—Evidence—Non-suit — Statutes—Contracts.</p> <p>Where the plaintiff in an action involving the title to standing timber has introduced evidence to show title from a common source with the defendant, a motion for judgment as of nonsuit upon the evidence cannot be allowed; and the statute protects the rights of both parties until the final termination of the action, and prohibits the cutting of the trees by either of them until then. Revisal, sec. 80S.</p> <p>6. Trials — Courts—Evidence—Verdict, Directing.</p> <p>Where there is no conflict in the evidence in a civil action, or the facts are virtually admitted, the court may direct a verdict as a matter of law.</p> <p>7. Deeds and Conveyances — Mortgages — Deeds in Trust — Recitations — Decrees—Evidence—Registration—Notice.</p> <p>Commissioners - appointed by the court to sell lands under a deed of trust are officers of the court, and their recitation in the deed of conveyances of decrees of the court respecting the sale are prima facie evidence of the correctness of such statements, and affect subsequent purchasers with notice, though the decrees may not be registered. It is otherwise when the order or judgment of the court creates the lien.</p>

Appeal by plaintiff from Lyon, J., at October Term, 1913, of CumbeelaNd. This is an action to recover damages for tbe destruction by fire of a turpentine distillery. Tbe jury returned tbe following verdict: 1. -Was tbe property of tbe plaintiff burned by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2. Was said property burned by tbe contributory negligence of tbe plaintiff? Answer: No. 3. Wbat damage, if any, bas tbe plaintiff sustained ?

<p>Appeal by defendant from Lane,tJ., at January Term, 1914, of Guilford.</p> <p>Action to recover $600, tbe amount of one of two notes given in the purchase of a Perdieron horse. Defendant pleaded that the note was obtained by the fraud of the payee, Maywood Stock Farm Importing Company, which had indorsed it “without recourse” to the plaintiff, with other notes of a like kind aggregating $35,285.62,'as collateral to secure loans made and to be made by the bank to the payee, the said importing company. The fraud was admitted by the plaintiff, and the sole question is, whether the plaintiff was a purchaser of the note in due course.</p> <p>Oscar E. Erenzel, cashier of the bank and witness.for the plaintiff, testified that neither he nor any of its officers had' notice of the fraud. He further testified:</p> <p>Q. When indorsed without recourse, how can you use it as a collateral note to secure the payment of loans and advances? A. Well, I suppose we can use it. At least, we took it so.</p> <p>Q. So indorsed, have you an action’ against the Maywood Stock Farm Importing Company or its president, Sterling-E. Holt, on this note, if it is not collected? A. No, sir.</p> <p>Q. Then, Mr. Erenzel, that being so, it is really not a collateral note, is it? A. Yes, sir; it is.</p> <p>Q. Then, really, you would have an action, as this is a collateral account of the Maywood Stock Farm Importing Company, against its said account or against Sterling E. Holt, its president, would you not? A. We would.</p> <p>Q. You said a moment ago you would not. A. If they were solvent.</p> <p>Q. Then you do have .an action against the company, May-wood Stock Farm Importing Company, or against its president, •Sterling R. Holt, for the payment of the note or notes for which this note is a part of the collateral? A. We do.</p> <p>Q. Did your bank make a practice of taking notes indorsed without recourse, made by farmers in another State, about whom you have no possible way of securing information as to their financial standing? A. It does not.</p> <p>Witness was then asked, on cross-examination, by questions addressed to him as to each one of the makers of the note, if he knew of any of them, and to each question he answered that he did not. He was then asked if he made any inquiry about their financial standing and ability, before taking the notes for the bank, and he stated, in reply, that he had notj that he took the notes with an indorsement “without recourse,” because the May-wood Stock Farm Importing Company, the payee, insisted upon it.</p> <p>Q. Have you an understanding with the Maywood Stock Farm Importing Company, or with Sterling R. Holt, its president, or with any of its officers, that if you do not collect this note of its makers, that the Maywood Stock Farm Importing Company, or Sterling R. Holt, or any of its officers, will pay this note? A. No, sir.</p> <p>Q. ITow do you expect to collect the other notes against them, indorsed without recourse, if they have gone out of business? If they have gone out of business, how do you expect to collect other notes or the note itself given by the Maywood Stock Farm Importing Company, of which the note sued on is collateral? A. That is a question; we will have to try and find something.</p> <p>Q. Flow do you expect to collect? A. Well, I think they have-some property, and we may be able to collect it from Mr. Holt.</p> <p>Q. Mr. Holt is solvent, isn’t he? A. I think he is.</p> <p>Q. Then, really, you can collect the.amount of the note for which you say the note sued on and the other notes were given as collateral? A. We don’t know. I am not positive.</p> <p>Q. You have made no attempt to collect, have you? A. No, sir; we have not attempted to collect it because they insisted on our collecting the collateral first.</p> <p>Q. Mr. Frenzel, did you or did you not receive a letter from an attorney representing tbe defendants, before suit was brought, stating that they refused to pay this note because of fraud on the part of the indorser or transferrer? A. I never saw such a letter.</p> <p>The plaintiff objected to this testimony, which was elicited on cross-examination of its witness, as irrelevant, and moved the court to suppress that part of the witness’s deposition, which motion was denied, and plaintiff excepted.</p> <p>The court charged the jury in part as follows: “If you find from the evidence in this case, and by its greater weight, that notwithstanding there was fraud used in the procurement of the signatures to the note, that this plaintiff, the Merchants National Bank of Indianapolis, purchased this note in good faith, without notice of any infirmity or defect, and before maturity and for value, you will answer the second issue ‘Yes.’ Unless you so find by the'greater weight of the evidence, you will answer the second issue ‘No.’ ” The jury returned the following verdict :</p> <p>1. Were the signatures to the note sued on procured by fraud? Answer: Yes.</p> <p>2. Did the plaintiff purchase said note in good faith and without notice of any infirmity or defect and before maturity and for value? Answer: No.</p> <p>3. Are the defendants indebted to the plaintiff, and if so, in what amount? Answer: Nothing. '</p> <p>Judgment was entered for defendants on the verdict, and-plaintiff appealed.</p>

Appeal by defendant from Lane, J., at January Term, 1914, of Guilford. Civil action. These issues were submitted: 1. Was tbe plaintiff’s intestate killed by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes. 2. Wbat damage, if any, is plaintiff entitled to recover of tbe defendant? Answer: $2,000. From tbe judgment rendered, tbe defendant appealed.

Appeal by plaintiff from Lane, J., at October Term, 1913, of ' Subey. Civil action, tried upon .these issues: 1. Were the checks and'note set out in the complaint executed by defendants without a consideration? Answer; Yes. 2. Are Joe Allen and J. D. Diifie the same person? Answer: Yes. 3. Did J. D. Diffie make false and fraudulent representations to defendants, as alleged in the answer? Answer: Yes. 4.

Appeal by defendant from Qoohe, J., at January Term, 1914, of Wake. In tbis action, pending in the Superior Court of Wake County, before his 'Honor, C. M. Cooke, judge, the same issue being presented as to the forgery of the note sued on, application was made for an order to inspect and photograph the note in question, and the motion was denied by the court, “all without prejudice,” and defendants excepted and appealed.

Appeal by defendant from Shaw, J., at November Term, 1913, Of GrUILFORD, Civil action tried upon these issues.: 1. Was the plaintiff injured by reason of the negligence of the defendant, as alleged in the complaint? Answer: Yes. . 2. Did the plaintiff by his own negligence contribute to the injury complained'of, as alleged in-the answer? • Answer: No. 3. What damage, if any, is plaintiff entitled to recover ? Answer: $100. The defendant appealed.

<p>Municipal Corporations — Cities and Towns — Judicial Powers — " Street Grading — Abutting Owner — Procurement of Ordinance.</p> <p>Unless the Constitution or some statutory regulation otherwise provides, an abutting owner may not recover damages to liis property caused by changing the grading of ah established street, when such change is made pursuant to proper municipal authority and there is no negligence in the method or manner of doing the work; nor can an action for damages be maintained by one abutting owner on the street against another, upon the ground that the defendant procured tlie municipality to change the grade when such change was done in a manner to relieve the municipality from liability.- Brown v. Electric Go., 138 N. C., 535, cited and distinguished.</p>

Appeal by plaintiff from Rountree, J., at December Term, 1913, of New HaNover. Civil, action tried upon these issues: 1. Did the plaintiff sell and deliver to the defendant the goods, specified in the complaint? A. Yes. 2. What was the value of those goods'? A. $433. 3. Where was the contract of-sale made? • A. Baltimore. 4. Is the defendant indebted to the plaintiff ? If so, in what amount? Answered by the court, “No.” 5.

Appeal by plaintiff from Rountree, J., at February Term, 1914, of Cumberland. Civil action to recover on a note for $15,000, purporting to be signed by Adam and Mrs. M. 0. McArthur and, others and the execution of which was denied by.the defendants named, 'heard on motion to permit the inspection and taking of photographic copy of the note in controversy.

Appeal by defendánt from Lyon, J., at October Term, 1913, of BladeN. Civil action to recover damages for losses alleged to have been sustained by firej tried upon exceptions by defendant to report of a referee. The court overruled the exceptions, and the defendant appealed.

Appeal by plaintiff from Justice, J., at December Term, 1913, of BobesoN. - . On 22 Marcb, 1884, A. H. McLeod, intestate of defendant, recovered judgment before a justice of the peace against plaintiff, W. W. Kelly, for $177.23 and costs, which was docketed in the Superior Court 22 March, 1884. McLeod afterwards sued upon tbat judgment, and obtained another judgment on 22 March, 1891, for the amount thereof and costs, and this judgment was docketed on 22 March, 1891.

<p>Appeal by defendant from Lyon, J., at January Term, 1914, of DURHAM.</p>

<p>Appeal by plaintiff from Devin, J., at December Term, 1914, of ObaNg-e.</p>

Appeal by plaintiff from Devin, J., at October Term, 1913, of Alamance. The plaintiffs sue as heirs at. law of ~W. G. Murchison, to recover a tract of land fully described in the pleadings, of which they allege W. G., Murchison died seized and possessed. .

<p>Appeal by defendant from Rountree, J., at October Term, 1913, of New HaNover.</p>

Appeal by plaintiffs and intervenors from Adams, J., at December Term, 1914, of Mooee. This action was commenced against 'the Piedmont Lumber Company, alleged to be a corporation, to recover damages for flooding the lands of the plaintiffs. A warrant of attachment was issued in the action, under which certain personal property was levied on and seized as the' property .of the corporation. The summons and notice of the attachment purported to be served by publication.

Appeal by defendant from Adams, J., at September Term, 1913, of RICHMOND. This is an action to' recover the possession of 287 acres of land. Plaintiffs claim the land as the widow and heirs at law of Travis Seals.

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

<p>Trials — Acquiescence—Implied Consent — Appeal and Error — Objections and Exceptions.</p> <p>As to whether permanent damages to the plaintiff’s land should have been assessed in this action, qucere. But it appearing that no exception to this issue was taken upon the trial, or in the assignments of error, and that upon a' former appeal the defendant concurred in or insisted upon the correctness of the position that they should be so assessed, and a new trial on that issue alone was granted, it is held that the defendant is concluded on this appeal by his conduct or acquiescence from contending that such an issue was improperly submitted or passed upon on the second trial.</p>

<p>1. Railroads — Condemnation — Railroads Crossing Railroads — Statutes — Court.</p> <p>Revisal, sec. 2556 (5) and (6), give the right to a railroad company “to condemn and acquire a right of way across the road of another company to construct a spur track to manufacturing plants,” etc., which is also given to the plaintiff: in this action of condemnation by its charter; and the courts cannot restrict this statutory right to be exercised by a railroad to cases in which the courts may approve its reasonableness or expediency.</p> <p>2. Same — Yard Limits — Former Appeal.</p> <p>The question involved on this appeal by the defendant railroad from a judgment permitting the plaintiff: railroad company to cross its roadway, within its yard limits, by condemnation, in order to put in a spur at an industrial plant, was decided adversely to the defendant on a former appeal of this case, with suggestion of location and method of procedure, under which the defendant may now act, if so advised. 161 N. C., 531.</p>

Appeal by plaintiff from Lane, J., at February Term, 1914, of DavidsoN. Civil action beard on motion for change of venue. From a perusal of the pleadings, it appears that the action was instituted in Superior Court of Davidson County, against the city of High Point in Guilford County, to recover damages caused by reason of its sewerage plant and system, operated in the corporate limits of the city.

<p>1. Municipal Corporation — Cities and Towns — Taxation—Street Improvements — Excessive Levy — Statutes—Equity—Injunction.</p> <p>Where a municipality levies a special tax for street Improvements upon the land of an abutting owner in excess of that allowed by a statute applicable, the excess is a nullity and may be enjoined; and where the limitation prescribed is a certain per cent of the taxable value of the property, that valuation must control, whether the property lies upon one or several streets.</p> <p>2. Municipal Corporations — Cities and Towns — Street Improvements —Excessive Levy — Statutes—Court’s Jurisdiction.</p> <p>It is not required of the abutting owner of lands upon a street of a city to comply with the prescribed procedure of objecting, etc., to an excessive special levy upon his property for street improvements, when the excess is void under the statute, for such assessment is jurisdictional and can be taken advantage of by the owner, in respect to such excess, at any time it is sought to be enforced in the courts.</p>

<p>1. Railroads — Master and Servant — Fellow-servant—Baggage Master — Negligence with Firearms — Trials—Damages—Statutes.</p> <p>Where a baggage agent of a railroad company, in the course of his employment in getting some baggage checks from a drawer to a desk in the baggage room, removes a pistol which he knew to be loaded, takes it in his hand, and in a careless manner opens another drawer to the desk, and in doing so causes the pistol to fire, by pressing the trigger with his finger, and kills his assistant, and this is done without the exercise of ordinary care and without due regard to the direction in which the pistol was pointing at the time, his negligent acts in causing the death of the deceased are attributable to the company employing him, and it is held liable for the consequent damages, in an action by the administrator of the deceased. Revisal, sec. 2646. The dis-' tinction between this case and instances not within the terms of the statute, pointed out, Clark,. C. J.</p> <p>2. Same — Appeal and Error — Trials—Instructions—Harmless Error.</p> <p>Where, in an action for damages, a railroad company is held responsible for the negligent manner in which its baggage master handled a pistol, in the course of his employment, which caused the death of another employee of the company, it is error for the trial judge to charge the jury that they must find that the baggage master was also negligent in leaving the pistol in the drawer of a desk in the baggage-room, from the evidence thereof; but the jury having found the issue of negligence in plaintiff’s favor, it is not prejudicial to the defendant, the appellant.</p> <p>3. Railroads — Master and Servant — Joint Employment — Trials—Evidence — Nonsuit.</p> <p>Where a baggage master is employed at a union. station to handle the baggage of two or several railroad companies, is paid his salary by one of these companies, and in the course of his employment negligently kills his assistant, and the administrator of the deceased enters a suit for damages against the company by whom his salary was paid, the defendant may not avoid liability upon the ground that at the’time of the negligent act the baggage master happened to be performing a duty for another of these companies; and where the evidence is conflicting, a motion for nonsuit should be denied, the evidence being construed in a light most, favorable .to the plaintiff, and taken as true.</p> <p>Brown, J., dissenting; Walker, J., concurring in the dissenting opinion.</p>

Appeal by plaintiff from Shaw, J., at November Term, 1913, of Guilford. Civil action to recover damages for alleged negligent injury on part of defendant company. At tbe close of plaintiff’s testimony, on motion duly made, there was judgment of nonsuit, and plaintiff excepted and appealed.

Appeal by plaintiff from Shaw, J., at February Term, 1914, of StANLY. Civil action on. a contract. From judgment of nonsuit tbe plaintiff appealed. Tbe complaint alleges: 1. Tbat tbe plaintiff, Standard Fashion Company, is a corporation duly organized under and by virtue of tbe laws of tbe State of New York. 2.

, in the county of Foksvth, 17 March, 1914. On the hearing it appeared that the petitioner was held on requisition and warrant charging him with, larceny and embezzlement in the State of Florida and being a fugitive from justice from said State. The court having duly-heard and considered the case, gave judgment denying the application, and ordered the petitioner into the custody of J. F. Gordon, the duly authorized agent of said State, for removal to that jurisdiction.

<p>1. Vendor and Purchaser — Contracts—Conditions of Warranty — Return of Goods.</p> <p>Where there is a warranty of personal property, with express provision that the property shall he returned if not found to be as warranted, within a certain fixed time, this provision is a condition annexed to the contract, precluding the vendee from any redress under the terms of the warranty unless the property is returned within the time specified.</p> <p>2. Same — Trials—Instructions—Conflicting Evidence.</p> <p>The plaintiff and defendant exchanged mules, and the evidence was conflicting, on the plaintiff’s part, as to whether the defendant warranted the mules he gave in exchange as being sound, and if not as warranted, to be returned within a reasonable time, and on the defendant’s part, whether, if the mules were not as warranted, they should be returned within a week, which was not done. A charge of the court is held for reversible error, that if the defendant warranted the mules to be sound when they were not, to answer the issue in the.plaintiff’s favor, for it disregarded the defendant’s evidence, that as a condition annexed to the warranty, the mules were to be returned within a week, which admittedly was not done, and withdrew that phase of the evidence from the consideration of the jury.</p> <p>3. Vendor and Purchaser — Contracts—Warranty—Return of Goods —Reasonable Time — Trials—Questions for Jury.</p> <p>Where a warranty in a sale of goods only provides for the return of the goods to the vendor, if not as warranted, they should be returned by the purchaser within a reasonable time for bim to get redress under tbe terms of the contract, it being for the jury to determine what length of time is reasonable under the surrounding circumstances.</p> <p>4. Vendor and Purchaser — Contracts — Warranty—Breach—Return of Goods — Damages.</p> <p>Upon -the vendor’s breach of his warranty in an executed agreement for the sale of goods, tbe purchaser may return the goods in a reasonable time, and recover the consideration he has paid for them; or he may retain the goods and recover such damage as he may have sustained arising from the breach of the vendor’s warranty.</p>

<p>1. Deeds and Conveyances — Interpretation—Intent.</p> <p>A deed must be interpreted as" a whole, with tbe view of ascertaining. tbe true intent of tbe parties, regarding tbe circumstances attending tbe transaction, tbe • situation -of tbe parties, and tbe status of tbe thing granted, wben such are necessary and relevant.</p> <p>2. Samé— Railroads — Easements—Forfeiture—Covenant—Breach— Equity.</p> <p>In construing a deed to lands — in tbis ease a grant of an easement to a railroad company — conditions subsequent to tbe vesting of tbe title,- which would work a foreclosure, should be strictly construed and taken most strongly against tbe grantor; and courts of equity will relieve against a forfeiture for breach of covenants in tbe conveyance wben a just compensation can be made in money or other things of value.</p> <p>3. Same — Conditions Subsequent.</p> <p>The plaintiff granted a right of way over and upon his lands to the defendant railroad company in consideration of $1 and the benefits to acclue to his lands, with provision also that the defendant should locate on its road, within a specified time, a sidetrack and flag station and other conveniences usually given to mill companies; and after the habendum and tenendum clause, the conveyance expiressly sets forth certain conditions the failure to observe which would work a forfeiture, such as the failure to operate the railroad, etc., through and upon said lands, etc.:</p> <p>Held; the deed should be construed as a whole, and it appearing therefrom that the construction of the road was necessarily of a permanent character and for the public use. and the conditions unperformed, the subject of the controversy, not appearing in that párt of the deed containing the conditions subsequent, the latter will be considered as covenants running with the land, which, by the acceptance of the company, it will be obligated to perform, and upon its failure to do so, the grantor’s right of action will either be for specific performance or sound in damages.</p>

<p>Master and Servant — Disobedience of Orders — Negligence—Trials— Instructions.</p> <p>An employee wbo acts in disobedience of tbe known rules and positive and direct instructions of bis employer and leaves bis place of duty and places, bimself in a dangerous position on bis employer’s premises, witb wbicb be was familiar, and consequently receives tbe injury, tbe subject of bis alleged cause of action for damages, is knowingly and without excuse at a pla.ce be bas no right to be, and an instruction upon tbe issue of contributory negligence is held for reversible error wbicb is made to depend upon tbe findings of tbe jury upon tbe question of whether he exercised ordinary prudence and could have gotten to a place of safety after becoming aware of bis danger.</p>

<p>Appeal by defendant from Devin, J., at, September Term, 1913, of DiÍRI-iam.</p> <p>This is an appeal from tbe refusal of a motion to dismiss tbe present action, upon tbe ground of the pendency of another action in Yance County, beard upon tbe following facts:</p> <p>“Tbe defendant in this action caused a summons to be issued against tbe plaintiff here from tbe Superior Court of Yance County, on 5 March, 1913, entitled R. S. McCoin v. W. J. Petti-grew and tbe American Bonding Company of Baltimore, Maryland, which was immediately sent by mail to tbe sheriff of Dur-bam County for service. It was in tbe office in Durham on tbe morning of 6 March, but tbe sheriff was out of town and only received it on tbe morning of tbe 7th; but was unable to find tbe defendant, who was out of town, until the night of 8 March, when tbe summons was duly served, about tbe hour of 9 p. m.</p> <p>. “Tbe summons in this action was issued on 7 March, 1913, from tbe Durham Superior Court, and sent by special messenger to Henderson, Yance County, on 8 March, 1913, when it was delivered to tbe sheriff of Yance County and served upon tbe defendant in this action early in tbe afternoon of that day, between tbe hours of 1 and 2 p. m., before tbe service of tbe Y anee County summons upon tbe defendant in that case in Durham.</p> <p>“Both actions are upon tbe same cause in courts of this State, and between tbe same parties, with tbe addition in tbe Yance action of tbe surety upon tbe bond of tbe said Pettigrew for tbe performance of tbe contract set out in tbe complaint. Both actions are still pending and undecided.</p> <p>“Upon tbe foregoing facts bis Honor was of tbe opinion, and held, that tbe Superior Court of Durham was entitled to entertain and proceed with tbe action begun on 7 March, and denied defendant’s motion to abate and dismiss this action,” and . . . “tbe defendants excepted and appealed.”</p>

Appeal by defendant from Lane, Jat September Term, 1913, of FoRsyth.

<p>1. Master and Servant — Negligence—Injury—Reasonable Anticipation.</p> <p>Where an employer has negligently left a dangerous appliance under conditions likely to inflict an injury on his employee while engaged in his work, and consequently one of them is injured by another who has not been informed or instructed a"s to its dangerous character, he is held responsible in damages-therefor, though he may not have anticipated that an injury of the precise nature of the one occurring would have been likely to result.</p> <p>2. Same — Safe Place to Work — Dangerous Appliances — Trials.</p> <p>The plaintiff cotton mill kept in its factory an air hose highly charged with compressed air and used to clean its machines by one of its employees, 15 or 16 years of age, without impressing its dangerous character upon him. This hose was left connected with the power furnishing the compressed air, upon the floor, without being guarded, when it could have been detached and locked up or more safely placed, and in the boyish spirit of fun, the employee whose duty it was to use it turned it upon his coemployee, a smaller boy, to the latter’s serious injury: Held, it being the duty of the master to furnish his employees a safe place to work, his negligence in respect to the hose was actionable, and not the result of an accident or act not reasonably to have been anticipated. In this case the statute forbidding employment of minors under 16 years of age is inapplicable, as it was passed after the occurrence of the negligent act complained of. Laws 1913, ch. 64, see. 63.</p>

Appeal by defendant from Long, J., at December Term, 1913, Of RANDOLPH. Civil action for damages for a personal injury alleged to bave been sustained by tbe plaintiff while attempting to cross the defendant’s roadway, driving along the street of a city, by reason of the failure of the defendant, through its proper agent, to give the customary warning of - the danger under the circumstances. The following issues were submitted to the jury, and answered as indicated: Í.

<p>Appeal by defendant from Adams, J., at March Term, 1914, of MECKLENBURG.</p> <p>This is an action to recover land, and both parties claim under William Ingram.</p> <p>The plaintiffs are the sisters of Eachel Sizer, who died, according to the record of deaths, 28 November, 1910, and according to the evidence of one witness, in September, 1911.</p> <p>Eachel Sizer was th& mother of William Ingram, an illegiti- . mate child.</p> <p>The claim of the plaintiffs is that William Ingram died before his mother, and that she inherited the land from him, and that upon her death it descended to them.</p> <p>The defendant claims under a deed from the University.</p> <p>The real controversy between the parties is whether there is any evidence of the death of William Ingram before the death of his mother.</p> <p>There was a motion for the judgment of nonsuit, which was overruled, and the defendant excepted.</p> <p>Judgment was rendered in favor of the plaintiffs, and the defendant appealed.</p>

<p>Telegraphs — Valid Stipulations — Sixty Days — Written Demand.</p> <p>The stipulation on a telegraphic message that “the company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days,” etc., is a valid one, requiring that a written claim be presented within the time specified, identifying the message, stating the negligence complained of, and the nature and extent of the de- ' mand, so as to enable the company to investigate and ascertain its liability; and a verbal notice or a threat made by the complaining party to the company’s agent that, as the company had been negligent, some one would have to pay for it, is totally insufficient. *</p>

<p>1. Municipal Corporations — Schools—Taxation—Necessaries.</p> <p>Schools and school buildings are not necessary expenses of a municipal corporation, and bonds for that purpose are required to be submitted to the qualified voters of the municipality issuing them.</p> <p>2. Municipal Corporations — Bond Issues — Necessaries—Vote of People — Constitutional Law — Statute Invalid in Part.</p> <p>Waterworks, sewerage, and electric lights are, under reasonable circumstances, necessities for which a municipality, acting under the authority of a statute, may issue bonds without submitting the question to the qualified voters of the municipality; and where the statute authorizes such issue, including schools and school buildings, without provision for submitting the question to the qualified voters, leaving the matter of their necessity to the aldermen oí the town, bonds issued under a proper town ordinance for such of the purposes as are regarded as necessary are valid, when the provisions of the statute are complied with.</p> <p>3. Municipal Corporations — Bond Issues — Necessaries—Limitation of Levy — Interest—Sinking Fund — Constitutional Law.</p> <p>Where bonds are issued by a municipality, under statutory authority, for necessary purposes, without provision for a special levy of taxes to pay the interest or create a sinking fund, and in the municipal charter there is a limit fixed to the power of levy, the city has the power to pay the interest on and create a sinking fund for the bonds from its general revenue derived under the limit fixed to its taxing power, if sufficient;' and if not sufficient, the bonds will not be declared invalid, especially at the Suit of one who has purchased with knowledge of the circumstances.</p>

<p>Appeal by plaintiffs from Rountree, J., at January Term, 1914, of HoKE.</p>

Appeal by plaintiff from Cline, J., at November Term, 1913, of Mitchell. Civil action brought to recover a tract of land. Tbe court rendered judgment in favor of tbe plaintiff, and tbe defendant appealed.

Appeal by defendant from Daniels, J., at May'Term, 1933, of Catawba. Civil action to recover damages for alleged breach of contract to cut timber.

Appeal by plaintiff from Harding, J., at January Term, 1914, of OabaRRUs. ■ This is a proceeding to have damages assessed under the road law of Cabarrus County, alleged to have been incurred in changing and relocating a road across the land of the plaintiff. The petition for the assessment of damages was filed on 22 November, 1913, and thereafter the jury, duly appointed, assessed the damages at $500.

Appeal by plaintiff from Long, J., at October Term, 1913, of Ieedell. Action to recover damages for personal injuries, alleged to bave been caused by defendant’s negligence. Plaintiff is a boy about 7 years old, and was, at tlie time be was burt, a pupil at tbe graded scbool in Statesville. Defendant was engaged in widening Bell Street some 15 feet and constructing a culvert underneath it.

<p>1. Mental Anguish: — Joint Action — Trials—Demurrer.</p> <p>Where two or several plaintiffs join in their action to recover damages for mental anguish, a demurrer for misjoinder is good, for from the nature of damages of this character the causes are not severable, the parties, as well as the subject-matter, necessarily being separate and distinct.</p> <p>2. Mental Anguish — Ignorance of Conditions — Trials — Damages— Questions of Law — Courts.</p> <p>When it is shown that the plaintiff, in an action to recover damages for mental anguish, was not aware or conscious at the time of the facts or circumstances upon which the damages are necessarily measured, a recovery of actual damages thereon will be denied as a matter of law.</p> <p>3. Mental Anguish — Express Companies — Trials — Negligence — Avoidance of Damages — Extra Expense — Measure of Damages.</p> <p>The plaintiff sued an express conrpany for damages for mental anguish alleged to have arisen from its neglect to put off a coffin which had been purchased .for the interment of his child, at its destination, and, as the measure of his damages, claimed that he was thereby prevented from burying the child at his family burying-ground, where he desired to bury it, because decomposition had begun to set in upon the late arrival of the coffin, which the defendant had carried beyond its destination and .returned. There was no evidence that he attempted to procure another coffin in time for his purpose, which it appears he could have done, and it is held that the mental anguish did not necessarily result from the defendant’s negligence, and it being the plaintiff’s duty to have avoided it, under the circumstances, his measure of damages was the additional expense he would have incurred had he otherwise acted.</p>

<p>Appeal by defendant from Bragaw, J., at August Term, 1913, of BuN'coMbe.</p>

Appeal by plaintiff from Devinf J., at September Term, 1913, of AlamaNCe. This is a civil action, tried before his Honor, R. B. Peebles, J., and a jury, at May Term,-1913, of the Superior Court of Alamance County, and afterwards retried upon one issue before his Honor, W. A. Devin, J., and a jury.

Appeal by defendant from Webb, J., at December Term, 1913, of Burke. This action was commenced on 30 December, 1911, returnable on 30 January, 1912, to recover the sum of $67, due by account, with interest.

Appeal by defendant from Justice, J., at November Term, 1913, of HeNdekson. This is a'civil action. The following issues were submitted to the jury: 1. Was the machinery by which the plaintiff alleges he was injured constructed in a reasonably safe manner, and was the same in a reasonably safe condition at the time of the alleged injury? Answer: No. 2. Did tbe defendant provide a reasonably safe place for tbe plaintiff in which-to work? Answer:'No. 3.

Appeal by plaintiff from Harding, J., at January Term, ■1914, of Cabarrus. Tbis action was brought to recover $70, money paid by the plaintiff to the defendant for .the tuition and expenses of bis son at the latter’s school. The boy was entered 1 January, 1913, for the remainder of that scholastic year, and returned for the Fall Term, 1913, the first of September.

<p>Appeal by plaintiff from the refusal of Long, J., to grant a restraining order to the hearing, heard at chambers, 30 March, 1914. '</p>

Appeal by defendant from Long, Jat August Term, 1913, of Oabaeeus. ' Civil action for .wrongfully arresting and maliciously prosecuting tbe plaintiff, a boy at one time in tbe employ of tbe defendant railway company. A number, of issues were submitted, wbicb it is unnecessary to set out, as the case is to be tried again. There was a verdict and judgment for the plaintiff, and the defendants appealed.

Appeal by defendant from Cline, J., at November Term, 1913, of Catawba. Tbis action was brought to recover damages for the unlawful arrest and false imprisonment of the plaintiff by the defendant. The arrest was made for the violation of an ordinance of the city of Hickory forbidding drunkenness and cursing in a public place in said city.

Appeal.by defendant from Harding, J., at December Term, 1913, of GastoN. Tbis action was brought to recover damages for injuries received in operation of a cotton-seed linter, alleged to have been caused by the negligence of the defendant. Plaintiff was employed as a sweeper and cleaner of the machines in the linter room, and was injured while attempting to clean one of the linters under the direction of Will Thompson.

Appeal by plaintiff from. Webb, Jat November Term, 1913, of Caldwell. This is an action to try the title to land. The plaintiff introduced grants from the State to Gr. N. Folk of date 16 December, 1874, and mesne conveyances from said Polk to the plaintiff. It also introduced evidence tending to prove that the grants and mesne conveyances covered the land in controversy.

<p>Interstate Commerce — Railroads—Failure to Settle Overcharges— Statutes — Constitutional Law.</p> <p>A recovery from a railroad company for overcharges on a shipment of goods (Revisal, sec. 2644), and the penalty prescribed by section 2643 for failure to refund the overcharges within the time specified, is not an interference with interstate commerce when the goods have been shipped here from another State. Our statutes on the subject are constitutional and valid..</p>

Appeal by plaintiff from Garter,. J., at January Term, 1914, OÍ Cl-LEEOKEE. This is a civil action, beard upon complaint and demurrer. His Honor sustained tbe demurrer, and tbe plaintiff appealed.

Appeal by plaintiff from 0. II. Allen, J., at April Term, 1914, of Wake. Tbis was a civil action brought by the plaintiff on behalf of himself and all other citizens and taxpayers of Raleigh Township, Wake County, to enjoin the board of county commissioners of Wake County from preparing and issuing $50,000 of school bonds of Raleigh Township, the cause being heard in the Superior Court of Wake County, upon an agreed statement of facts, a jury trial having -been waived.

Appeal by defendant from Justice, J., at November Term, 1913, of HeNdeksoN. Civil action for divorce on account of adultery. There ’was evidence tending to show that plaintiff and defendant were married in September, 1912, and some time after that, and after a visit to Savannah, defendant developed an acute case of gonorrhea, an,d that she had no such disease at the time,of marriage.

<p>1. Railroads — Backing Trains — Warning — Negligence Per Se — Trials.</p> <p>It is negligence per se for tlie enqployees on a railroad freight train to back its tr'ain upon or cross a street crossing its track in a thickly populated portion of the town, without some one on the front bos car to give notice of its approach and to signal the threatened danger to pedestrians, and it is actionable when injury is thereby proximately caused.</p> <p>2. Same — Contributory Negligence — Issues—Harmless Error — Appeal and Error.</p> <p>The plaintiff, with the knowledge of defendant railroad company’s employees, had for some time been engaged at the defendant’s depot in directing his team driver in removing freight which had arrived over defendant’s road. At this place a public street crossed the railroad’s main and side tracks, on the latter of which two empty and detached box cars had stood for quite a while. Plaintiff was momentarily standing in the street upon this side-tradk, giving directions- to his driver, when, without .notice or warning, defendant’s employees attempted to attach these box cars to the engine, and the cars, being without brakes on, ran down upon the plaintiff, to his injury. The evidence held sufficient .upon the issue of defendant’s negligence, and the submission of the issue of contributory negligence to the jury was not error of which defendant could complain.</p>

Appeal by plaintiff from Garter, J., at January Terra, 1914, of Haywood. This action was brought to set aside a contract or bond, alleged by defendants to have been executed by ~W. J. G. B. Boyd on 26 June, 1912, by which he agreed to convey to T. N. Leatherwood a certain tract of land, supposed to contain 100 acres and lying on the waters of Caldwell Fork of the Cata-loochee. Plaintiffs alleged that the contract was not made by the said Boyd, but is a forgery.

<p>1. Partition — Pleadings—Sole Seisin — Ejectment.</p> <p>Where sole seisin is pleaded in proceedings for partition and the cause is transferred for trial to the Superior Court, it. becomes, in effect, an action of ejectment.</p> <p>2. Ejectment — Possession — Admissions — Limitations of Actions— Burden of Proof.</p> <p>Where the answer in ejectment alleges defendant’s possession of the disputed lands, it is unnecessary for the plaintiff to show it, but' where the defendant pleads the statute of limitations, it is for the plaintiff to prove that the action is not barred.</p> <p>3. Limitation of Actions — State’s Lands — Entries—Recording—Notice-Equity — Stale Claims.</p> <p>Where the plaintiff claims land under a quitclaim deed of B. of supposed interests he had in lands entered by another, and B. thereafter has taken out grants of these lands in his own name and had them recorded, this act of B. put him in an adverse relation to the plaintiff’s. ancestor, giving the latter his action for whatever rights he could have acquired under the quitclaim deed, and from that time the various statutes of limitation would.begin to run; and where there has been, a lapse of fifty-seven years since the registration of the grant to B., the plaintiff’s claim, unexplained, would become a stale claim, and. bar his rights in equity, in the absence of a statute.</p>

Appeal by defendant from Shaw, J., at January Term, 1914, of Mooke.

Appeal by defendant from Brag aw, J., at February Term, 1913, of EuNCombe. Civil action tried upon exceptions to report of referee.

<p>Appeal by plaintiff from Cline, J., at April Term, 1914, of Yaktcey.</p>

Appeal by caveator from Webb, J., at January Term, 1914, of Wilkes. Issue of clevisavit vel non as to tbe will of Isaac 0. Wellborn.

<p>Appeal by defendants from Ferguson, J., at November Term, 1913, of Cherokee.</p>

<p>Appeal by defendant from Lane, J., at November Term, 1913, of RockiNghaM.</p> <p>This is an action by tbe trustees of tbe Leaksville-Spray Institute to recover $1,500, alleged to be due on a certain paper-writing, not under seal, executed by tbe defendant on or about 1 August, 1908, by wbicb be promised to pay the plaintiffs, sixty days after date, $1,500.</p> <p>Tbe principal defense relied on by tbe defendant is that there was no consideration to support tbe promise.</p> <p>Tbe facts leading up to tbe execution of tbe paper-writing are as follows Í</p> <p>“In 1907, tbe General Assembly of North Carolina chartered tbe Spray School of Technology, and designated as trustees, among others, one of tbe plaintiffs, D. F. King, and tbe defendant, B. Frank Mebane. This act provided, among other things, that a plant for actual demonstration work should be established in connection with tbe school. Tbe defendant Mebane became active in bis efforts to establish tbe school, and one of tbe plaintiffs, D. F. King, who was also designated as a trustee of tbe school, urged that tbe school should be established at Leaksville, and that-the Leaksville-Spray Institute, in wbicb tbe said King was largely interested,'might be purchased and'used in connection with tbe Spray School of Technology; -and a price for this property was named by tbe said D. F. King, as appears from tbe record, which, as tbe defendant Mebane understood, would cost tbe Spray School of Technology about $18,000, most of tbe stockholders of tbe Leaksville-Spray Institute having agreed to donate their stock free of charge.</p> <p>“The defendant Mebane secured twelve of tbe corporations at Spray to agree to give $500 each for a period of twenty years, aggregating $120,000, toward tbe purchase of this property and. the maintenance of the school, which fund should be used to supplement the appropriation of $5,000 annually, which the State had provided in the act incorporating the Spray School of Technology, to be available whenever a suitable site, buildings, etc., were procured. That the defendant also induced Mr. Andrew Carnegie to donate $50,000 for a similar purpose. The American Warehouse Company of Spray was one of the contributing corporations that entered into this arrangement.”</p> <p>It also became desirable to acquire the property of the Leaks-ville Furniture Factory in the establishment of the School of Technology, which was located about one-half mile from the Leaksville-Spray Institute, and which was at that time leased to the American Warehouse Company at an annual rental of 6 per cent on the amount of the capital stock.</p> <p>The plaintiff King owned stock in the furniture company, and also in the Leaksville-Spray. Institute, and the latter company was indebted to him in the sum of about $18,000.</p> <p>There is a conflict of evidence as to the agreement to buy the stock of the furniture company, the evidence of the plaintiff tending to prove that it was bought by the defendant, and the evidence of the defendant that it was bought by the American Warehouse Company.</p> <p>After a part of the stock of the furniture company was bought, a question was raised as to whether the property of the furniture company, when purchased, would be used in connection with the school or for other purposes, and the plaintiff refused to sell his stock until further assurances were given.</p> <p>The defendant then executed the paper-writing sued on, and the plaintiff King and others sold their stock in the furniture company.</p> <p>There is also a conflict of evidence as to the agreement when the paper-writing was executed, the evidence of the plaintiff tending to prove that the defendant agreed to pay the sum of $1,500 if he did not buy the Leaksville-Spray Institute, and that of the defendant that he was to pay the amount if he did not use his best efforts to establish the School of Technology.</p> <p>The Leaksville-Spray Institute was not bought, and the defendant introduced evidence that he did all he could to establish the school.</p> <p>The plaintiff King testified, among other things: “I received a message through Mr. J. W. Ivie from.Mr. Mebane, prior to 1 August; my recollection is, only a few days. He said that Mr. Mebane had. agreed to give a note for $1,500, and would pay that note if he didn’t buy the Leaksville-Spray Institute property. At that time he had my proposition. I was not at the stockholders’ meeting of the furniture factory when Mr. Mebane made his talk. I owned $1,500 stock in the furniture factory. I understood some of the stockholders of the furniture factory had sold their stock for these five-year notes. Some of them had declined. After I received the message from Mr. Ivie, sent by Mr. Mebane, I bought Mr. Norman’s stock, $1,200; paid him $1,100, and the other $100 was to be put in the School of Technology. He was to give it. I gave him my obligation to pay the $1,100, and have paid it. I bought this stock after receiving the message from Mr. Mebane. I afterwards transferred my stock to Mr. Cabell Wall. Mr. Wall came over there and brought the notes for the transfer of the stock of the furniture factory. The notes were signed by the American Warehouse Company and B. Frank Mebane. We sold to B. E. Mebane. I told Mr. Wall that there was a $1,500 note to be executed by Mr. Mebane in this transaction, and I said, ‘You will have to go back and get it before I transfer the stock.’ He went back and got the note and brought it over, and I transferred the stock. I delivered the stock to Mr. Wall and took this $1,500 note. The $1,500 note was given at the time of the transfer of the stock and the taking of the notes for the stock.</p> <p>■ We made a demand on Mr. Mebane for the payment of this money for the benefit of the Leaksville-Spray Institute. Mr. Mebane admitted last court that he got this notice. Mr. Mebane never bought the Leaksville-Spray Institute nor the indebtedness, nor my stock.”</p> <p>His Honor charged the jury upon the question of consideration, among other things, as follows:</p> <p>“The paper-writing sued on in this case is as follows:</p> <p>On sixty days demand, I will pay to the order of D. F. King, Dr. John Sweaney, and B. F. Ivey, $1,500 (one thousand five hundred dollars), said parties to dispose of this amount in connection with the Leaksville-Spray Institute in any way they may see fit.</p> <p>(Signed) B. FeaNk MebaNe.</p> <p>Payable at the Bank of Spray, N. 0.</p> <p>“Now, gentlemen of the jury, this is not such a promise to pay money as either imports or presumes a consideration, and standing alone is not collectible in law; but it may become so if the ones to whom it is made can by the greater weight of the evidence satisfy the jury that it was made for a valuable consideration; and that is the contention of the plaintiffs in this case, that it was made for a valuable consideration, which contention is denied by the defendant Mebane, and which matter is to be determined by you in your answer to the first issue submitted to you. That first issue, along with three others, is submitted to the jury. That first issue reads: ‘Was the paper-writing sued on based upon a consideration?’</p> <p>“The court instructs you that a valuable consideration consists either in some right, interest, benefit, or profit accruing to the party who makes the payment, or some forbearance, detriment, loss, or responsibility, act or service given, suffered, or undertaken by the other to whom it is made.</p> <p>“In order to support the contract, it is not required that the consideration shall be for the full value of the sum named in the contract, or for full value of the property passed. Mere inadequacy of consideration will not avoid a contract, in the absence of fraud, where a contract is legally sufficient on its face; and so full value was not required to support the simple promise, but it must be of some value.</p> <p>“A contract is said to be an agreement by two parties entered into for a consideration to do or not to do a certain thing. In order to constitute a contract, there must be a mutual understanding, a meeting of minds, a mutual agreement.</p> <p>“It is contended tbat you should find by the greater weight or the preponderance of the evidence in this case, from the evidence of Mr. Hopper and Mr. King, who, it is contended, when this paper was brought to him by Mr. Wall, only turned over the stock 0/ the furniture factory upon the execution of this writing as a consideration for it. ‘By the greater weight or preponderance of the evidence’ is meant that evidence which weighs more when put in the scales, which has more convincing force, carries more conviction to your minds, whether it comes from one witness, or more, as the case may be.</p> <p>“In order to constitute a valuable consideration, as I have told you, it is not necessary for the plaintiff to show that the consideration was an adequate one, but if you find from this evidence that the reason for the execution of this note by the defendant was anything of value to him, or necessary to him for the accomplishment of his business purposes at that time, then that would be a sufficient consideration; or if you should find from the evidence that part or either of them were induced to sell property to the defendant which he would not otherwise have sold except for the execution of this note, and that the property was of value, that would be a sufficient consideration.</p> <p>“If you should find from the evidence in this case that the defendant desired to purchase stock of D. F. King and others in the furniture factory, that King and others refused to sell this stock to the defendant unless he would execute the note sued on, and in order to accomplish the purchase of this stock the defendant was required to execute the note, and that this stock was of some value, then there was a' sufficient consideration for the note.</p> <p>“If you find by the greater weight of the evidence that before Mr. King or others here transferred the stock of the furniture factory to the defendant, that they required this defendant to execute and deliver to them the note in controversy, and the stock in it was of some value, then that would be a sufficient legal consideration for the execution of the note, and you will answer the first issue ‘Yes.’ ”</p> <p>The defendant, excepted to tbis charge, and also by motion to nonsuit and prayers for instruction raised the question that there was no evidence of a consideration.</p> <p>There was a verdict and judgment for the plaintiffs, and the defendant excepted and appealed.</p>

Appeal by plaintiff from Harding, J., at December Term, 1913, of GastoN. Civil action to recover damages for an alleged wrongful expulsion from defendant’s .passenger train. At tbe close of plaintiff’s testimony, on motion, there was judgment of nonsuit, and plaintiff, having duly excepted, appealed.

Appeal by defendant from Olina, J., at November Term, 1913, of Catawba. This action was brought by plaintiff for tbe specific performance of a contract, wbicb be says was made by tbe defendant, to convey to bim for $600 a tract of land known as tbe dower of Mrs. Starr.

Appeal by defendant from Adams, J., at Spring Term, 1913, of TRANSYLVANIA. This is a petition for partition of twenty-six tracts of land, described in the petition. Tbe defendants are The Toxaway Company, a corporation, and J. 0. Fisher and others, who with the plaintiff are the heirs at law of John S. Fisher.

<p>Appeal by plaintiff from Justice, J., at February Teim, 1914, of BUNCOMBE.</p>

Appeal by plaintiff from Cline, J., at October Term, 1913, of Wilkes. Tbis is an action to remove a cloud from title and to declare a trust in certain land. Tbe plaintiff claims title from tbe State under Grant No. 16401, for 50 acres.

Appeal by defendant from Ferguson, Jat October Term, 1913, of JacksoN. Action to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff, at tbe time 16 or 17 years old, was employed by defendant, witb tbe j>romise of tbe manager that be should work outside tbe mill in a safe place.

<p>1. Drainage District — Smaller Districts in Larger Ones — Bond Issues.</p> <p>Wliere a smaller drainage district is laid off within the boundaries of a larger one, theretofore organized, the purposes of each harmonizing with the purposes of the other, and the lateral ditches in the former being especially necessary for the proper drainage of the lands therein, an issue of bonds by the smaller district is not rendered invalid at the suit of a purchaser because of the larger district which includes it, it being provided that the bonds of the latter shall have priority of lien to those of the former, with which understanding the bonds were sold and purchased.</p> <p>2. Drainage Districts — Bond Issues — Mortgages—Priority of Liens.</p> <p>It has become the public policy of our State to authorize the formation of drainage districts, with statutory authority to levy assessments, under stated conditions, upon the lands situated in the district, with the object of making them of greater value; and where the statute bias authorized the laying off of one of these districts, a mortgage on lands therein situate, though taken before the district is formed, is subject to the authority of the commissioners to levy the assessment, and bonds issued accordingly for the purpose of drainage have a superior lien to that of the mortgage.</p> <p>3. Same — Trusts and Trustees — Parties.</p> <p>Where the. purchaser of bonds issued by a drainage district refuses to take the bonds upon the ground that he had purchased them upon condition that they should be the first lien upon the lands contained in the district to the extent of the assessment, and that a large portion of the lands were subject to a first lien by mortgage, or deed of trust, the mortgagee or trustee is not a necessary party in an action involving the validity of the bonds.</p>

Appeal by plaintiff from Justice, J., at February Term, 1914, of BuNcombe. Civil action to recover damages for injuries caused by alleged negligence on part of defendant. At the close of plaintiff’s testimony, on motion duly entered, there was judgment of nonsuit, and plaintiff excepted and appealed.