Volume 167 — North Carolina Reports

Appeal by defendant from Daniels, J., at June Term, 1914, of CAR-TERET. This is an action for damages in diverting and ponding water by tbe defendant’s embankment, causing sickness of plaintiff’s children and tbe loss of their services and tbe expense of tbe doctor’s bill and medicine. Yerdict and judgment for tbe plaintiff. Appeal by tbe defendant.

Appeal by plaintiffs from Peebles, J., at April Term, 1914, of JohN-STON. This action was brought under Eevisal, sec. 1589, to determine the adverse claim of defendants to certain land described in the pleadings as adjoining B. D. Hilliard and others and containing 27% acres and being part of a larger tract containing 100 acres.

Appeal by plaintiff from Ferguson, Jat April Term, 1914, of Pee-quimaNS. Tbis is an action to recover damages for an alleged libel. Tbe plain■tiff and plaintiff’s witnesses testified substantially to tbe following facts: That in October, 1912, tbe plaintiff purchased from tbe Elm City Lumber Company, through correspondence with N. E. Mobn, a car-load of bay.

<p>Railroads — Federal Employers' Liability Act — “Next of Kin” — “Dependent” —State Laws — Interpretation of Statutes.</p> <p>Within the intent of the Federal Employers’ Liability Act, the meaning of the words “next of kin” depending upon the employee, who are given a right of action against a railroad company for his wrongful death, when he has no surviving widow or husband or children, is dependent upon the State law regulating inheritances; and in this State our statute, Revisal, sec. 137, controls, and thereunder the half-brothers of the deceased employee, an illegitimate child, may maintain the action when born in lawful wedlock of the same mother; and it is further held, in this case, that evidence of the tender age of such next of kin, being without estate, is sufficient to be submitted to the jury as being “dependent” upon the deceased employee.</p> <p>Walker, J., concurring; Brown, J., dissenting; Hoke, J., concurring in the dissenting opinion.</p>

ÁPPEAi/by defendant from Daniels, J., at May Term, 1914, of Pitt. This is an action upon a policy of life insurance issued to Isaac Carson Hardy for tbe benefit of tbe plaintiff, who- is bis daughter.

Appeal by defendant from Whedbee, J., at December Term, 1913, of J* ONES. This is a civil action to recover damages for injury to a mule, caused by the negligence of the defendant, the Norfolk Southern Railway. The jury found for the plaintiff and assessed the damages at $100, from which judgment the defendant appealed.

Appeal by plaintiff from Peebles, J., at August Term, 1914, of Pitt. Tbis action was brought to recover damages for injuries alleged to have been caused by the defendant’s negligence, and resulted in a verdict for the' feme plaintiff upon all the issues. The case on appeal states: The jury answered the issues in favor of the plaintiff, as set out in the record, and assessed her damages at $5,000.

<p>Appeal by defendant from Whedbee, J., at January Term, 1914, of Lekoir, on appeal from a justice of the peace.</p>

Appeal by plaintiff from Daniels, J., at April Term, 1914, of CkaveN. This is an action to recover damages accruing upon a contract for tbe sale of bay, bought by tbe plaintiffs from Cbilderbose & Pratt, in wbicb tbe proceeds of two drafts, drawn by Cbilderbose & Pratt on tbe plaintiff and paid by it, were attached in tbe bands of tbe Peoples Bank of New Bern.

Appeal by defendants from Daniels, at May Term, 1914, of CRAVEN. This action was brought to cancel two mortgages and to set aside a sale of the land made under one of them. Plaintiff borrowed the money and paid off one of the mortgages. The other mortgage was given by plaintiff to defendant on 5 March, 1892, to secure three notes for $50 each, with interest, and due respectively 15 December of the years 1892, 1893, and 1894.

Appeal by defendant from Daniels, J., at February Term, 1914, of CRAVEN. This is an action to recover damages for an alleged breach of an implied warranty in the sale of 600 boxes of oranges. Both the plaintiffs and the defendant are dealers in oranges, plaintiffs doing business at New Bern and the defendant in Florida.

<p>Railroads — Principal and Agent — Contracts—Special Authority — Trials—Evidence — Questions for Jury.</p> <p>Upon the question whether a railroad company through its proper officers authorized its local agent to make a contract for furnishing the plaintiff a baggage car at certain other of its stations at stated times, or ratified the act of the agent in making such contract, evidence is held sufficient which tends to show the plaintiff requested the .car from the local agent, who asked time before replying, and subsequently entered into the contract, and the car was thereafter furnished at two of the stations. The charge of the court is approved in this case.</p>

Appeal by plaintiff from Whedbee, J., at March Term, 19Í4, of LENOIR. This is a civil action triad upon facts agreed. His Honor rendered judgment in favor of tbe defendants. Tbe plaintiff appealed.

<p>Appeal by plaintiffs from Darnels, J., at August Term, 1914, of SAMPSON.</p>

<p>Appeal by defendant from Peebles, J., at chambers in CbaveN, 15 September, 1914.</p>

Appeal by defendants from Daniels, J., at February Term, 1914, of GrREENE. Tbis is a proceeding for partition of land. In June, 1903, James Harrell, husband of the plaintiff, Maggie Harrell, died intestate, leaving him surviving a widow and four infant children, and seized in fee simple and possessed of an undivided one-half interest in the tract of land described in the petition, the other one-half interest being owned by his sister.

Appeal by plaintiffs from Daniels, J., at January Term, 1914, of Pitt. Special proceeding for partition of the lands of Martha Louisa Cox, tried in the Superior Court upon these issues. 1. Was Henry Haddock, the father of the defendant Nonie Stocks, born out of lawful wedlock? Answer: No. 2.

Appeal by defendant from Allen, J., at April Term, 1914, of Wake. These actions were brought, one by Ovey J. Betts and the other by Eaymond Betts, against the defendant, to recover damages for the negligent failure to deliver a telegram in the following words: To Ovey J. Betts, Technical School, Bogersville, Tenn. Olifton died suddenly this morning. Funeral tomorrow afternoon. Have written. (Signed) Eaymokd.

<p>1. Insurance, Fire — Agents — Commissions — Insolvency of Company — Unearned Premiums — Claims Assigned.</p> <p>The local agents of a fire insurance company are entitled to their commissions upon the business they have written for the company, and when the company has become insolvent and the policy-holders have been duly notified to present their claims to the receiver for the unearned part of their premiums, the local agents, who have paid the claims of some of the policy-holders, on insurance they have secured, and have had the claims assigned to them, are entitled .to the full amount thereof, without deduction for commissions they have received.</p> <p>2. Same — Special Contract — Burden of Proof.</p> <p>Where a fire insurance company has become insolvent and in the hánds of a receiver, and its local agent has paid some of the policy-holders the unearned premiums on their policies which had been secured by his agency, and brings action for their repayment, the burden is upon the defendant company to show some special contract or agreement with the agent whereby the commissions he had received were to be deducted from the amount of the claims, when such is relied upon.</p> <p>3. Insurance, Fire — License—Voidable Policy — Right of Action — Insured— Interpretation of Statutes.</p> <p>While Revisal, sec. 4763, provides that no action shall be maintained in the courts of this State upon a policy of fire insurance issued by a company not authorized to do business in this State by the Insurance Commissioner, etc., the company issuing the policy in violation of this section may not receive the premiums and rely upon the statute to invalidate the policy, for such would permit it to take advantage of its own wrong.</p> <p>4. Same — Foreign Agencies — Principal and Surety.</p> <p>Where a foreign insurance company, authorized to do business here under our laws, issues its policy on property situated within the State, but through an agency in another State which is unauthorized to write it here, because of not having obtained the license required by Revisal, secs. 4706, 4765, the policy is valid as to the right of action of the insured thereon; and in this case the surety on the "bond, given to the Insurance Commissioner by the company in lieu of the cash deposit required, is responsible for the default of the insurer.</p>

Appeal by defendants from Daniels, J:, at April Term, 1914, of Pitt. Tbis is a proceeding to establish tbe dividing line between tbe plaintiff and defendant. Tbe plaintiff contends tbat tbe true line is from A to B on tbe plat, and tbe defendant, tbat it is from 0 to A, tbe land in dispute being a triangle between tbe lines A B and A C. Botb parties introduced evidence to sustain tbeir contentions. Tbe jury returned tbe following verdict: “1.

<p>Judgment — Estoppel.</p> <p>In a former suit to foreclose a mortgage on certain lands fully described in tbe pleadings, the locus m quo was sold by a commissioner duly appointed for the purpose, under a decree 'ordering the sale, which conformed to the description contained in the pleadings, and the plaintiff in this action claims under the commissioner’s deed, containing the same description. The defendant in the present action was also a party defendant in the suit to foreclose, and it is held that he is estopped by the judgment therein from showing that the boundaries set out in the present case, and in the former suit, did not correctly describe the lands contained in the mortgage.</p>

<p>1. Deeds and Conveyances — Intent—Estates—Husband and Wife — Tenants in Common.</p> <p>A deed is interpreted as a whole to ascertain its intent, and the common-law .rule as to the formal parts does not now obtain. Therefore, when thus construing a conveyance of land to husband and wife, it appears that they do not, take the estate in entireties, but as tenants in common, the law of jus acerescendi does not apply.</p> <p>2. Deeds and Conveyances — Interpretation—Presumptions—Fee Simple — Interpretation of Statutes — Restraint on Alienation.</p> <p>Our statute, Revisal, sec. 946, provides that conveyances of land, without the use of the words “heirs,” etc., are to be construed in fee, unless it clearly appears from the wording of the conveyance that an estate of less dignity was intended; and where a'conveyance is thus construed to be in fee, any attempt of restraint upon alienation is void, but where relevant, the words therein used may be construed to ascertain whether the intent of the grantor was to convey a fee or an estate of less dignity.</p> <p>3. Same — Husband and Wife — Tenants in Common.</p> <p>A conveyance of land, in the habendum, reserved possession in the grantor until the happening of a certain 'event, and then the possession to go to the grantees, husband and wife, “with the further limitation that neither party of the second part shall sell his or her one-half interest in the said land while the other is living, but, at the death of either, the survivor may dispose of his or her interest in fee, the one-half belonging to the other dying to go to his heirs or devisees in fee.” Held, (1) after the termination of the interest reserved in the grantors the fee in the lands goes to the grantees, husband and wife, as tenants in common, not in entireties, the last clause of the conveyance having been inserted to prevent the possibility of survivorship; (2) the attempted restraint on alienation is void, though construed as intending to prevent one of the grantees from introducing a stranger as tenant in common with the other.</p>

<p>Appeal by defendant from a refusal of a motion to dismiss by Allen,. J., May Term, 1914, of Wake.</p>

Appeal by defendant from Daniels, J., at July Term, 1914, of ONSLOW. Appeal from an order of the court allowing plaintiffs to file amended complaint upon payment of costs.

Appeal by defendants from Connor, -J.,-at March Term, 1914, of Halifax. Civil action to recover damages for the wrongful killing of Ada Lynch, deceased, formerly wife of plaintiff administrator.

Appeal by defendant from Lane, J., beard at chambers in G-uileoed. Motion for a restraining order. Tbe motion was based upon tbe verified complaint of .tbe plaintiff. His Honor beld tbat upon tbe complaint, itself, tbe plaintiff was not entitled to a restraining order. Tbe plaintiff excepted and appealed.

Appeal by defendants from restraining order rendered by Whedbee, J., at chambers, in DupliN, 3 February, 1914. This is an action to enjoin defendant from further cutting and removing timber trees which were under the size conveyed, and which, though not over the size at the time of cutting, would become, of size during the term given.

Appeal by defendant from 0. II. Allen, J., at chambers in Owslow, 23 September, 1914. Suit for partition in Onslow County. The land in question descended to James L. Mills from his father, Lot Mills. James L. Mills died leaving him surviving a sister of the full blood, Annie M. Noble, and Mills H. Hodges, only child and heir at law of another sister of the full blood, both sisters being children of Lot Mills, deceased.

Appeal by defendant from Bond, J., at July Term, 1914, of Wake. This is an action to compel tbe defendants to pay certain amounts deducted from tbe school taxes to pay a part of tbe expense of making-out tbe tax lists.

<p>Appeal by plaintiff from Daniels, J., at June Term, 1914, of Car-TERET.</p> <p>Civil action' to restrain tbe enforcement of a municipal ordinance, beard on demurrer to complaint.</p> <p>Tbe ordinance in question and tbe general facts more directly relevant as to its physical effects upon plaintiff’s property are stated in tbe complaint as follows: “That on or about 1 July, 1912, tbe commissioners of tbe town of Morebead City attempted to adopt an ordinance of and concerning tbis plaintiff’s line of poles and wires, reading as follows: Tt shall be unlawful for any person, firm, or corporation to erect or maintain any telegraph, electric light, or telephone pole at any point upon any of tbe streets of tbis city more than 24 inches beyond or outside tbe curb, line separating tbe sidewalk from tbe driveways of said streets. Any person, firm, or corporation violating tbis ordinance shall be guilty of a misdemeanor, and upon conviction shall be fined $50, and each additional day during which, said poles are allowed to remain ontside the limits above specified shall constitute a separate offense. All poles standing in violation of the provisions hereof shall be removed under the direction and control of the mayor, and the actual cost and expense of such removal shall be charged to and collected from the owner of such poles, and the mayor, in the name of the city, is authorized and empowered to sue for and collect the same.’ That in the attempt to enforce said ordinance the commissioners of the town of Morehead City and the town of Moreh'ead City have undertaken and attempted to construe the same to apply to the line of poles and wires erected irpon the strip of land used by this plaintiff as its right of way, and which was owned by the Atlantic and North Carolina Railroad Company, and under lease to this company, which said line of poles and wires were erected by the said Atlantic and North Carolina Railroad Company, and has been used and maintained by this company as a necessary part of the conduct of said business of operating its said railroad, and the said commissioners and said town of Morehead City have threatened and are now threatening and attempting so to construe said ordinance as to require this plaintiff to remove its said line of telegraph poles and telegraph wires and telephone wires in and upon said strip of land aforesaid, and to deprive this plaintiff of its rights to use the same in accordance with its contract with the State of North Carolina, as aforesaid, and in violation of its legal rights.”</p> <p>There was judgment denying relief, and plaintiff excepted and appealed.</p>

Appeal by plaintiff from Coohe, J., at November Term, 1914, of FRANKLIN.

<p>Appeal by defendants from 'Rountree, J., at September Term, 1913, of PENDER.</p>

Appeal by defendant from Whedbee, J., at February Term, 1914, of DUPLIN. Civil action, beard on motion in tbis cause. Tbe motion was to enforce collection of tbe purchase money for a tract of land bought and held by Sallie E. Pierce, a defendant at a judicial sale under,decree in tbis cause.

Appeal by defendant from Peebles, J., at May Term, 1914, of Chat-ham. This is an action begun in a court of a justice of tbe peace, and tried on appeal in tbe Superior Court, for tbe recovery of $2 as damages for tbe loss of a gallon of whiskey shipped from Virginia to tbe plaintiff at Merry Oaks, North Carolina, and for a penalty of $50 for failure to pay tbe claim. The following issues were submitted to tbe jury: “1.

Appeal by plaintiff from Coolce, J., at April Term, 1914, of Waee. This is an action for the recovery of land.. The complaint declares that the plaintiff is the owner in fee simple and entitled to the immediate possession of the lands described.

Appeal by defendant from 0. H. Allen, Jat February Term, 1914, of Oolítmbus. This action was brought by the plaintiff as administrator of Noah Nobles, to recover damages for the alleged negligent killing of his intestate. The facts are few and simple. The intestate, in broad daylight, was walking on the track of the defendant, known as the Conway branch, towards his home, 3 miles away.

<p>1. Appeal and Error — Briefs—Assignments of Error Abandoned — Rules of Court.</p> <p>Assignments of error not mentioned and discussed in the brief of appellant are taken as abandoned on appeal under Rule 34, and it is pointed out by the Court that upon mature consideration of counsel in making their briefs it is well for them not to set out useless assignments, so that the attention of the Court may be given to the material propositions of law presented in the appeal.</p> <p>2. Pleadings — Amendments—Power of Courts — Trials—Issues—Instructions.</p> <p>It is within the discretion of the trial court to permit amendments to the pleadings during the progress of the trial (Revisal, sec. 307), and where by such amendment certain matters formerly at issue have been eliminated, it is proper for the court'to rule out evidence relating to the matters eliminated, and to reject issues and prayers for special instructions relating thereto.</p> <p>3. Evidence — Depositions—Trials—Witnesses—Courts.</p> <p>When the deposition of a witness, taken when he was in another State, has been read on the trial of the cause, in his absence, the trial judge may, in his discretion, permit the witness, then present, to orally testify after his deposition has been read in evidence.</p> <p>4. Appeal and Error — Evidence—Questions—Objections and Exceptions.</p> <p>Where questions are ruled out as evidence, it must be made to appear of record what the expected answer will be, so that the Court may see their materiality and relevancy, or exceptions taken thereto will not be considered. „</p> <p>5. Courts — Evidence—Expert Witnesses — Recross-examination—New Matter.</p> <p>It is within the discretion of the trial judge to permit an expert witness to testify to new matter on his recross-examination.</p> <p>6. Railroads — Train Orders — Copies—Identification—Witnesses—Nonexpert Evidence.</p> <p>Where damages are sought in an action against a railroad company for a wrongful death alleged to have been inflicted on the deceased by reason of an erroneous train order, made out in original and carbon, causing a collision of two trains, wherein the deceased met his death, it is competent for a witness who has not qualified as an expert to testify that he had inspected the original order, and that the copy exhibited was not genuine.</p> <p>7. Same — Meeting Points — Similarity of Names.</p> <p>A railroad company' having two stations on its road with similar names, “Grandy” and “Granite,” wired from its proper department for two trains going in opposite directions to meet at one of these points, which they failed to do, resulting in a collision and the injury to the plaintiff, and the controversy turned upon the question which point was named in the order, the plaintiff contending that the order he received instructed “Grandy” as the meeting point. The plaintiff having been fully examined and testified he had no doubt that the order read “Grandy” instead of “Granite,” was permitted to say that a paper-writing exhibited to him looked nearer like the one he had received than that introduced by the defendant, and that it read that the trains should pass at “Grandy,” the name of the station as appearing upon the order being indistinct; and this is held no error.</p> <p>8. Railroads — Collisions — Meeting Points — Pleadings—Amendments—Negligence — Issues.</p> <p>The damages claimed in this action are sought for the alleged failure of a train order to properly name the meeting point of two of its trains going in opposite directions, whereby an injury was caused to the plaintiff, an employee on one of them. Held, the issues of negligence, contributory negligence, and damages were the proper ones, the question of assumption of risk having been excluded from the case by a permitted amendment of the pleadings.</p> <p>9. Same — Trials—Evidence—Questions for Jury.</p> <p>Where damages are sought in an action against a railroad company for its alleged negligence in giving the proper order for the meeting of trains at a certain station, resulting in an injury to an employee on one of the trains, upon which the evidence is conflicting, the controversy presents issues of fact for the determination of the jury.</p> <p>10. Master and Servant — Federal Employers’ Liability Act — Contributory Negligence — Damages.</p> <p>Under the Federal Employers’ Liability Act an instruction that the jury should “deduct,” in proper instances, a reasonable amount for contributory negligence, instead of saying the damages should be “diminished on account of the contributory negligence of the plaintiff,” is not held for error.</p> <p>11. Evidence, Conflicting — Medical Expert — Trials—Questions for Jury.</p> <p>Where expert evidence is. conflicting as to whether locomotor ataxia could result from an injury received in a collision of two railroad trains, it is for the jury to determine the truth of the matter.</p> <p>12. Master and Servant — Federal Employers’ Liability Act — Contributory Negligence — Measure of Damages.</p> <p>Semble, that an instruction under the. Federal Employers’ Liability Act is erroneous, that if the negligence of the plaintiff was equal to the negligence of the defendant, he could not recover, for in such cases the plaintiff would be entitled to the full amount of the damages, less an allowance of one-half to be deducted on account of his contributory negligence.</p> <p>The Court recommends a change in the statute as to selecting expert witnesses.</p> <p>Walker, J., dissenting; Brown, J., concurs in dissent.</p>

Appeal by defendant from Devin, J., at June Term, 1914, of Eock-INGHAM. This is an action of libel upon tbe following article: DEDICATED TO WOULD-BE CHARACTER ROBBERS. One of tbe blackest crimes in tbe bistory of Eockingham County was attempted during tbe trial of tbe suit wherein Tbe Leaksville-Spray Institute was plaintiff and B. F. Mebane defendant, wben A. L. Brooks, 0.

Appeal by plaintiff from O. H. Allen, Jat April Term, 1914, of 'Wake. This was a civil action, tried upon tbe following issues: '1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged'in tbe complaint? Answer: No. 2. Did tbe plaintiff assume tbe risk of being injured while in tbe employ of tbe defendant ? Answer;- 3. Did tbe plaintiff, by bis own negligence, contribute to'bis injury? Answer:_ 4.

Appeal by defendant from Rountree, J., at April Term, 1914, of HoKE. Tbis is an action to set aside a deed, executed by tbe plaintiff to tbe defendant in 1905, upon tbe ground of fraud.

Appeal by defendant from Daniels, Jat March Term, 1914, of Pitt. ■ Tbis is a civil action.- There was a verdict on a number of issues upon which tbe court rendered judgment, and tbe defendant appealed.

Appeal by plaintiff from Peebles, J., át April Term, 1914, of JonN-STON. Civil action to recover damages for injury done plaintiff while wrongfully being worked at defendant’s cotton mill; plaintiff, at the time of the occurrence, being a minor between 8 and 9 years of age.

Appeal by plaintiff from Whedbee, J., at March Term, 1914, of SAMPSON. Civil action.

<p>1. Mortgages — Foreclosure—Provisions as to Notice — Strict Compliance.</p> <p>In foreclosure proceedings under a power of sale contained in a mortgage, tlie requirements of the statute and the contract stipulations of the instrument not inconsistent with the statute in respect to notice and other terms on which the power may be exercised shall be strictly complied with; and when such has not been done, no title can pass under the sale in respect to the immediate parties thereto.</p> <p>2. Same — Postponements.</p> <p>The strict compliance with the terms of the mortgage and' statutory provisions required to make a valid sale upon foreclosure does not apply when a postponement is had by reason of the sale being enjoined or for other reasonable purposes, for in the absence of statutory or contract provisions to the contrary, as in this State, a notice of postponement made in good faith, and reasonably calculated to give proper publicity of the time and place, is held sufficient.</p> <p>3. Same — Insufficiency of Notice.</p> <p>Under the facts of this case a sale under a power contained in a mortgage was adjourned not less than four times, the only published notice of the postponement being memoranda at the bottom of one of .the original notices, without satisfactory evidence that a proclamation was made at more than two of the dates, or testimony informing the court of the number of persons within hearing when the same was made, except the first time, and then only a half-dozen were present. Held,, the notice of postponement was insufficient.</p> <p>4. Mortgages — Sales—Postponement—Sheriffs—Sales by Order of Court — Interpretation of Statutes.</p> <p>Itevisal, sec. 645, authorizing the postponement of sale from day to day for not more than six days is held to apply to sales by the sheriff or persons acting under court decrees, and not to apply to sales under power contained in a mortgage.</p> <p>5. Courts — Jurisdiction—Pleadings—Judgment—Estoppel.</p> <p>When a court having jurisdiction of the case* and the parties renders judgment therein, it estops the parties and their privies as to all issuable matters contained in the pleadings; and though not issuable in a technical sense, it concludes, among other things, as to all matters within the scope of the pleadings which are material and relevant and were in fact investigated and determined in the hearing.</p> <p>6. Judgments — Mortgages—Sales—Notice—Estoppel.</p> <p>Tile mortgagor of lands brought suit to restrain the mortgagee from making conveyance thereof under a sale of foreclosure under the power contained in the mortgage, and issue was joined, among others, upon the question of the sufficiency of notice of the postponement of the sale, and judgment was rendered establishing, among other things, the sufficiency thereof. In the present action the purchaser at the sale sues the mortgagor for possession of the lands, and it is Held, the present defendant is estopped by the judgment in the former proceedings to deny the sufficiency of the notice of postponement.</p>

Appeal by defendant from Devin, J., at March Term, 1914, of Foe-syth. This is an action to recover the value of certain services rendered by the plaintiff to the intestate of the defendant. During the progress of the trial the wife of the plaintiff was permitted to testify, over the objection of the defendant, that the defendant’s intestate agreed with the plaintiff to pay for the services, and that payment was not to be made' until after death. The defendant excepted.

<p>Cities and Towns — Streets and Sidewalks — Negligence—Trials—Evidence— Nonsuit.</p> <p>In an action against a city for damages alleged to bave been negligently inflicted on tbe lflaintiff by reason of tbe defendant allowing a ditcb or excavation to remain unligbted and unguarded on its street, at nigbt, it was shown that tbe city issued a permit to plumbers to make sewer connections there, which were completed and the ditch properly filled and the bricks of the sidewalk replaced nine days before the occurrence; that less than an hour before the plaintiff’s injury occurred a sunken place, alleged to be the cause thereof, came into the sidewalk, where the street was well lighted, evidently resulting from a eave-in from an excavation in a private lot: . Helé, this evidence was insufficient, unsupported by other evidence, to be submitted to the jury on the question of defendant’s actionable negligence.</p>

Appeal by defendant from Whedbec, J., at June Term, 1914, of LENOIR. Civil action. Tbe plaintiff moved for judgment upon the pleadings.

Appeal by both parties from Coolce, J., at August Term, 1914, of CumbeklaNd. This action was commenced in the county of Cumberland, summons being returnable to the August Term, 1914. Plaintiff is a resident of the county of Cumberland, and the defendant A. L. McNeill and Ida Rankin McNeill are residents of the county of Lee.

<p>Appeal by defendant from Daniels, J., at February Term, 1914, of GrEEENE.</p> <p>Civil action, tried upon these issues:</p> <p>1. Was tbe plaintiff’s intestate injured by reason of tbe negligence of tbe defendant ? Answer: Tes.</p> <p>2. Did tbe plaintiff’s intestate by bis own negligence contribute to bis own injury and death? Answer: Yes.</p> <p>3. Notwithstanding the negligence of the plaintiff’s intestate, could the defendant by the exercise of reasonable care have avoided the injury to the plaintiff’s intestate? Answer: Tes.</p> <p>4. What damage, if any, is the plaintiff entitled to recover of the defendant ? Answer: $500.</p>

<p>Appeal by defendant from Devin, J., at June Term, 1914, of Roce-INGHAM.</p>

<p>1. Interpretation of Statutes — Motor Cars — Negligence—Intersecting Streets.</p> <p>• Public Laws 1913, cb. 107, providing, among other things, that a person operating a motor vehicle, when approaching an intersecting highway or traversing it, shall have the car under control and operate it at a speed not exceeding 7 miles an hour, having regard to the traffic then on the highway and the safety of the public, is construed with reference to its subject-matter and the purpose and intent of the act gathered from the language employed, and it is held that the word “intersecting highways” includes all space made by the junction'of frequented streets of a town, though one of the streets enters the other without crossing or going beyond it.</p> <p>2. Same — Trials—Instructions.</p> <p>It appearing in this case that the defendant knocked the plaintiff down and injured him, while the former was running his motor vehicle at an excessive speed upon a public and frequented street that ran into but did not cross another, which he was approaching, without slowing down or giving the signal required by section 1, chapter 107, Public Laws 1913, it was error for the trial judge to charge the jury that the second section of said chapter did not apply to the facts of the case, upon the ground that to come within the meaning of the statute the defendant must have been running his car on a street which crossed beyond the other street he was approaching in 'order for the streets to have been intersecting each other.</p>

Appeal by plaintiff from Bond, J., at July Term, 1914 of WaKE. Civil action to try title to position as director of tbe Central State Hospital, beard on case agreed. Tbe facts submitted were as follows: R. H. Salisbury and A. B. Groom claim tbe title to tbe same office of director of tbe State Hospital at Raleigb, tbe office being tbe one occupied by J. D. Biggs and by bim resigned, and tbe term therein expiring in 1917. 1.

Appeal by plaintiff from Lyon, J., at May Term, 1914, of GbaNVille. Tbis is an action to recover rent. The plaintiff’s grandmother owned a tract of 365 acres of land in Yance County. By her will tbe .grandmother left the property to plaintiff, subject to the life estate of Mrs. Callie Hayes (or Clayton), mother of plaintiff. The life .tenant died 18 May, 1913, and the property passed to plaintiff.

<p>1. Appeal and Error — Trials—Evidence—Facts Admitted.</p> <p>Tbe exclusion of evidence relating to facts admitted at the trial is not erroneous.</p> <p>2. Trials — Contributory Negligence — Evidence—Nonsuit.</p> <p>A motion to nonsuit upon tbe evidence is properly allowed when tbe plaintiff’s own evidence discloses, such contributory negligence as bars bis recovery.</p> <p>3. Carriers of Passengers — Stations—Safe Egress — Contributory Negligence —Trials—Questions for Court.</p> <p>Where a person sui juris is lawfully on tbe platform of a railroad company,’ at night, with a lighted lantern near him, which be bad used in going there, and knew tbe existing conditions, that tbe platform was elevated some distance from tbe ground and was without guard or railing at a certain place used for tbe handling of freight, which was a dark and dangerous place at tbe time; and the light from his lantern was shining upon some steps near him from the platform to the ground, a shorter distance, where the railroad had provided a railing or guard, his attempting to leave the platform, without his lantern, by the dangerous way, instead of by the safe way opened to him, is such contributory negligence, as a matter of law, as will bar his recovery in his action for damages against the railroad company for its alleged negligence in failing to provide a safe place for the use of its passengers.</p>

<p>1. Telegraphs — Negligence—Mental Anguish — Issues—Causal Connection— Trials — Instructions.</p> <p>Where damages are sought for mental anguish and the negligent delay of a message by a telegraph company, and the first issue relates solely to the question of defendant’s negligence, and the second as to whether the damages were caused by the negligence of the defendant, and where the jury has affirmatively answered the second issue under proper instruc-tiohs, it includes tlie question of proximate cause. Hence, an instruction on tlie first issue, that the jury could answer it without finding that the negligence of the defendant was the cause of the injury, is not erroneous. In this case, it appearing that the name of the sendee of the message was changed in transmission, without explanation, and otherwise it would have been promptly delivered, there was no real controversy presented as to proximate cause arising under the second issue, and the judge would have been justified in instructing the jury that the defendant was negligent upon the admitted facts, upon the first one.</p> <p>2. Telegraphs — Mental Anguish — Presumptions — Relationship—Uncle and Nephew.</p> <p>Where a telegram to an uncle announces the death and time of burial of his 4-year-old nephew, there is a presumption arising from the relationship that the sendee of the message will suffer mental anguish in consequence of not being able to attend the burial of the deceased, caused by the negligence of the telegraph company in failing in its duty to transmit and deliver the message with reasonable promptness. Sherrill v. Telegraph Co., 155 N. C., 250, cited and approved.</p>

<p>Appeal by defendants from Allen, J., at June Term, 1914, of Wake.</p>

Appeal by defendant from Devin, J., at June Term, 1914, of. Rock-INGHAM. Tbis is a civil action to recover damages for a personal injury. Tbe issues of negligence and damage only were submitted. From tbe verdict and judgment for plaintiff, defendant appealed.

Appeal by defendant from Lane, J., at June Term, 1914, of Guil-eoed. This action was brought to, recover damages for an alleged delay in the delivery of a telegram filed with the defendant at 2 :30 o’clock p. m., on 23 June, 1913, addressed by A. S. Adams, at Angier, N. 0., to Annie E. Smith, feme plaintiff, High Point, N. C., which read as follows: “Baby died this evening.

<p>Appeal by defendant from Lane, J., at February Term, 1914, of ÜAVIDSON.</p>

<p>Bills and Notes — Holder—Due Course — Presumptions—Trials—Erroneous Instructions — Appeal and Error.</p> <p>Tbe possession of a negotiable instrument by tbe indorsee, or by a transferee where indorsement is not necessary, imports pruna -facie tbat be is tbe lawful owner of tbe paper, and tbat be acquired it before maturity, for value, in tbe usual course of business, without notice of any circumstance impeaching its validity; and where fraud is not alleged or suggested, it is error for tbe trial judge to instruct tbe jury tbat such bolder is prima facie one in due course, and then add, “tbat is, if be takes it in good faith, for value, without notice of infirmity, and is tbe owner thereof and entitled to sue thereon.”</p>

Appeal by defendant fraternal association from Devin, Jat February Term, 1914, of Fobsyth. This action was brought to charge the defendant Eoyal Fraternal Association with the payment of a policy of insurance issued by its codefendant’ Eoyal Benefit Society, on the life of Sarah 0. Morgan for the benefit, at her death, of her son, Leonard Morgan.

Appeal by defendant from Lane, J., at May Term, 1914, of DavidsoN.

Appeal by defendant from Lyon, J., at May Term, 1914, of GraN-ville. This was a civil action. There was a verdict and judgment for plaintiff, and defendant appealed.

Appeal by defendant from 0. H. Allen, J., at February Term, 1914, of New HaNOveR. Civil action to recover on a contract, beard on exceptions to report of referee. Tbe plaintiff complained and offered evidence tending to sbow tbat in 1908 plaintiff was tbe owner of certain lands, timber contracts, sawmill, dry-ldln, planing mill, and other property, and defendant1 offered to buy tbe same at tbe price of $19,500, wbicb offer plaintiff accepted.

<p>1. Railroads — Injury to Livestock — Negligence—Opinion Evidence — Trials— Questions for Jury.</p> <p>Where tbe evidence is conflicting as to whether or not the engineer on defendant’s train could have stopped his train in time to have prevented an injury to plaintiff’s horse, which had become frightened and had run some' distance down and near the defendant’s track in the same direction the train was going, before attempting to cross the track, where the engine struck him, it is competent for an engineer who had been long in the defendant’s service and knew the condition existing as to grade, etc., at the place of the injury, to testify that from his knowledge of the locality, experience and observation, the train could have been stopped in time to have avoided it; and the evidence presenting questions of fact, a judgment of nonsuit was properly denied.</p> <p>2. Railroads — Injury to Live Stock — Statutory Presumptions.</p> <p>The statutory presumption of negligence of a railroad company in killing live stock, when the action is brought within six months, applies whether a horse, the subject of the action, was hitched to a buggy at the time or running at large. Revisal, sec. 2645.</p> <p>3. Railroads — Injury to Live Stock — Ordinary Noises — Frightening Horses— T rials — Negligence.</p> <p>The principle that railroad companies are not liable in damages occurring to travelers along the road in consequence of their teams taking fright at the. noises ordinarily made by the operating of its trains does not apply to cases wherein the company, by the exercise of reasonable diligence, could have prevented the injury after the horse had become frightened and, running along the track for some distance, had attempted to cross in front of the train. Barnes v. Public-service Corporation, 163 N. C., 365, cited and distinguished.</p> <p>4. Railroads — Injury to Live Stock — Issues—Last Clear Chance.</p> <p>The evidence in this case being conflicting as to whether or not by the exercise of reasonable care the engineer on the defendant’s train could have avoided killing the plaintiff’s horse which attempted to cross the track in front of the train, it was proper to submit a third issue, as to whether the defendant could have avoided the injury by the exercise of ordinary care, in addition to the issues of negligence and contributory negligence.</p>

Apeeau by defendant from Shaw, J., at Fall'Term, 1914, of Eioh-3VIOND. This action was brought to recover the amount alleged to be due under a contract between the parties, by which defendant employed plaintiff as its traveling salesman in parts of North Carolina and South Carolina, the territory being designated by reference to a map described therein.

<p>Appeal by plaintiff from Lyon, J., at March Term, 1914, of Ala-MANCE.</p>

Appeal by plaintiff from Allen, J., at August Term, 1914, of BbüNS-wick. Civil action. Plaintiff, tbe owner of certain land, sued tbe defendant company for wrongfully cutting timber on bis property. Defendant showed a line of deeds purporting to convey to him tbe timber of certain dimensions on tbe land and claimed tbe right to cut and remove tbe timber at any time within twenty years from tbe date of tbe deeds.

<p>1. Evidence — Expert Witnesses — Cause and Effect-of Injury.</p> <p>It is competent for a medical expert, during .the examination of the plaintiff in his action to recover damages of the defendant for a personal injury alleged to have negligently been inflicted by it, to indicate the wound on the plaintiff’s person, and testify from its character that it had apparently been produced “by some force coming from above, carrying the head and upper part of the spine forward,” and state his reasons, when relevant to the inquiry, and other competent witnesses have testified as to the manner, place, and time the injury had been received.</p> <p>2. Evidence — Medical Experts — Qualification—Osteopaths.</p> <p>Where the trial court has found as a fact that one testifying as a medical expert has qualified himself to give the testimony sought of him, it is immaterial to what school of medical thought and practice the witness belongs, and an exception that the witness was an osteopath cannot be sustained.</p> <p>3. Measure of Damages — Personal Injury — Evidence—Wages—Prospective.</p> <p>The plaintiff in his action to recover damages for a personal injury against a railroad company testified to the amount of wages he had received as brakeman, as flagman, and at the time he was injured, and that then he “had been in line for extra baggage for two or three months.” Held, competent upon the measure of damages.</p> <p>4. Railroads — Master and Servant — Personal Injury — Actual Occupation.</p> <p>The plaintiff, while baggage-master of the defendant, was injured, and in his action to recover damages therefor it is held that it was immaterial to the inquiry whether he was in the baggage car at the time or not.</p> <p>5. Railroads — Printed Rules — Parol Evidence.</p> <p>A railroad company may not prove its printed rules by oral evidence of plaintiff on cross-examination.</p> <p>6. Court's Discretion — Examination of Witnesses.</p> <p>The manner of cross-examination of a witness is very largely a matter which must be left to the sound discretion of the trial judge, which will not be held for reversible error except when palpably abused.</p> <p>7. Evidence — Measure of Damages — Nervous Conditions.</p> <p>It is competent for witnesses who have qualified as medical experts and who had attended the plaintiff, to testify, when relevant to the measure of damages in an action for a personal injury, as to the effect on plaintiff’s nervous system in amputating his arm; that they found the plaintiff “rundown and weak, with rather a troubled expression, indicating sorrow and suffering.”</p> <p>8. Court’s Discretion — Evidence—Witness—Repetition.</p> <p>In this case it is held that the refusal of the court to permit defendant’s medical expert witness to further testify as to the incorrect methods employed by a medical expert witness who had testified in plaintiff’s behalf, is not erroneous, it appearing it was a repetition by the witness of his testimony already given upon the trial.</p> <p>9. Evidence — Irrelevant Matter — Appeal and Error.</p> <p>The admission of irrelevant evidence, not prejudicial to the appellant, will not be held for error.</p> <p>10. Trials — Material Witnesses — Present at Trial — Matters in Excuse.</p> <p>It is competent to show that material witnesses had been’subpoenaed by the other side, and were present at the trial, for the purpose of showing why the party had not himself subpoenaed them.</p> <p>11. Appeal and Error — Error as to One Issue — Trial—Damages—Evidence.</p> <p>Where on appeal of an action to recover damages for a personal injury no error is found as to the issues of negligence and contributory negligence, and the case is sent back for trial solely on the issue of damages, instructions bearing upon the first two issues, as, in this case, the conduct of the plaintiff on the witness stand, are properly refused.</p> <p>12. Trials — Instructions — “Large Damages” — Ability to Pay — Appeal and Error.</p> <p>In tliis ease the modification of defendant’s requested instructions, so as to make them read that the jury should not consider the ability of the defendant to pay “large damages,” instead of “damages,” if erroneous, is held as harmless error.</p> <p>13. Trials — Instructions—Interested Witnesses.</p> <p>A prayer for special instructions, that the expert witnesses testifying in plaintiff’s behalf were inclined to view the circumstances in a favorable light for plaintiff, is objectionable as an expression of opinion by the court forbidden by statute.</p> <p>14. Same — Appeal and Error — Former Appeal — Courts—Improper Remarks.</p> <p>Upon the consideration to be given by the jury to the testimony of interested witnesses, Herndon, v. R. R., 162 N. C., is approved and the charge of the judge is recommenced as the correct form; and in this case, sent back for a new trial by the Supreme Court, it is not held for error that the trial court correctly charged upon this phase of the controversy by following the directions laid down in the former appeal, and added that he did so because the Supreme Court had held that it must be done; “but after you have done so, and you shall conclude that the witness had told the truth, you will give the same weight to his evidence that you would to that of any other credible witness.”</p> <p>15. Appeal and Error — New Trial on One Issue — Damages—Trials—Evidence.</p> <p>Where a new trial is awarded on appeal only on the issue of damages, the plaintiff is not confined on the second trial to the evidence on this issue he has introduced on the first one, but may show other matters tending to increase the amount.</p> <p>16. Appeal and Error — Objections and Exceptions — Trials—Contentions—Instructions.</p> <p>Appellant should call to the attention of the trial judge, at the time, an alleged erroneous statement to the jury of his contentions, to afford him an opportunity to correct it; for otherwise it will not be considered on appeal.</p> <p>17. Trials — Evidence Withdrawn — Instructions—Appeal and Error.</p> <p>When the trial judge instructs the jury that certain evidence introduced is withdrawn, and they shall not consider it in their deliberations, the admission- of the evidence will not be held for error, and in this action for damages for a personal injury the plaintiff’s expenses for nursing were properly allowed as an element of damages.</p> <p>Walker, J., concurs in the result.</p>

Appeal by defendant from Devin, J., at September Term, 1914, of Guileord. Tbis is an action to recover of the defendant the sum of $770.31, the plaintiff alleging that he furnished material that went into her building; that he had given her notice thereof and it was her duty to retain this amount from the amount owing to the contractor at the time. The prayer in the complaint asked for a lien, but this was abandoned on trial.

Appeal by defendant from Goolce, J., at July Term, 1914, of RobbsoN. Proceedings for partition of 240 acres of land in said county, tbe borne place of John McOallum, deceased, beard on transfer from tbe clerk and on case agreed.

Appeal by defendant from Lyon, J., at June Term, 1914, of Obange. TMs is a civil action brought to recover on the purcbase-money notes given for a German coaching stallion. These issues were submitted to the jury: 1. Did tbe plaintiffs warrant the horse, as alleged in the answer? Answer: Yes. 2. Was there a breach of said warranty by the plaintiffs? Answer: Yes. 3. Did the defendants offer to return the horse on or before 1 March, 1909? Answer: No. 4.

Appeal by defendant from Lane, J., at Fall Term, 1914, of Davidsoh. Tbis is an action to recover damages for mental anguish, the plaintiff being the sender of the telegram set out in Hedrick v. Tel. Go., ante,. 234, where the facts are fully stated.

<p>1. Divorce — Consent Decree — Support of Minor Children — Motion in Cause —Power of Court — Statutes.</p> <p>The trial court is authorized by statute (Revisal, 1570), both before and after final judgment in an action for divorce, either a vinculo or a mensa et thoi-o, “to make such orders respecting the care, custody, tuition, and maintenance of the minor children of the marriage as may be proper, and from time to time modify,” etc., such orders, and where consent judgment in a suit a mensa et thoro has been entered in the action, without providing for such children, upon motion in the original cause the court has power to make such further orders as' it deems proper requiring the' father to provide for the support of his children, whether born before or after the rendition of the consent judgment.</p> <p>2. Same — Charge Upon Husband’s Lands — Appeal and Error — Presumptions —Evidence—Custody of Children.</p> <p>The trial judge, on motion in the original cause wherein a judgment for divorce has been rendered, may direct the father to pay a sum certain at regular intervals for the support and maintenance of his minor children and decree that it shall constitute a lien upon his lands; and where the order of the court does not provide for the custody or tuition of the children, the appellate court will not reverse .the order solely on that account, the matters being within the discretion of the trial court, and where the record is silent, the presumption is that the court below acted upon sufficient evidence to warrant the omission.</p> <p>3. Divorce — Minor Children — Property—Support—Duty of Father.</p> <p>Inhere is a legal as well as a moral duty of the father to support his infant children, if he is able to do so, whether they have property or not, and after as well as before a decree of divorcement, though the custody of the children be awarded to the mother.</p> <p>4. Appeal and Error — Divorce—Improvident Appeal.</p> <p>Upon appeals by the wife and children in separate actions, the appeal of the children will be considered as improvidently taken-if the relief sought is identical with that afforded under the judgment obtained in the action of the mother.</p>

<p>1. Judgments, Irregular — Course and Practice of Courts — Rendered in Wrong County — Power of Courts.</p> <p>In tbe absence of statute and without tbe consent of the parties litigant, the trial judge is without power to render a judgment outside of the county wherein the cause is pending, and a judgment thus rendered is contrary to the course and practice of the courts.</p> <p>2. Same — Motions in Cause — Procedure.</p> <p>Where a judgment rendered outside of the county wherein the cause was pending states that it was done with the consent of the parties, one of them, whose substantial right is affected, may, by motion in the cause, move to set aside the judgment upon the ground that his consent was not in fact obtained; and it is error for the judge before .whom the motion, is made to refuse to entertain it for lack of power to do so.</p> <p>3. Limitation of Actions — Judgments—Course and Practice — Interpretation of Statutes.</p> <p>Revisal, sec. 513, requiring that application to relieve against a judgment for mistake, surprise, or excusable neglect be made within one year, does not apply to a judgment rendered’ contrary to the course and practice of the courts, as where the judgment was signed in a different county from the one in which the action was pending, without the consent of the complaining party.</p>

<p>Appeal by plaintiffs from Lane, J., at February Term, 1914, of Davids ON.</p>

<p>Corporation — Officers — Vice President — Authority—Trials—Evidence—Non-suit.</p> <p>In an action against a-corporation to recover for medical attention, and care of its employee by the plaintiff sanatorium, the defendant resisted recovery upon the ground that it had not authorized the services rendered. There was evidence tending to. show that the employee was carried to the sanatorium by the salaried physician of the defendant company, and thereafter its vice president called up the plaintiff by phone and directed that special, care be given this patient; that the bill should be sent to him and that the defendant would pay it; and, also, that formerly the defendant had paid for the attention given by the plaintiff to another employee on such authorization. Held, the position of vice president of a corporation does not necessarily empower this officer to bind the company by such acts; but the evidence in this case was sufficient to be submitted to the jury upon the question of his authority, and judgment of nonsuit was properly denied.</p>

Appeal by defendant from 0. H. Allen, J., at June Term, 1914, of Wake. Civil action to recover on a subscription to stock in plaintiff corporation.

<p>1. Contracts, Written — Substitution by Parol — Principal and Agent — Broker’s Commission — Statute of Frauds — Evidence.</p> <p>An agreement made between tbe owner of lands and a broker, that tbe latter should sell tbe lands divided into lots, etc., and receive as compensation for services to be rendered tbe difference between an agreed price and that which tbe lots would bring at tbe sale, does not come witbin tbe meaning of tbe statute of frauds requiring tbe contract to be reduced to writing; and where performance of tbe contract is.sought by tbe broker, it is competent for tbe defendants to show that tbe written contract bad been subsequently abandoned and a new contract substituted by tbe parties by parol, which tbe plaintiff bad refused to carry out.</p> <p>2. Contracts, Written — Statute of Frauds — Entire Contract — Parol Evidence.</p> <p>When specific performance of a written contract is sought, which tbe law does not require to be in writing, it is competent for tbe defendant to show, when it does not vary or contradict tbe writing, that tbe entire agreement between tbe parties bad not been embraced in tbe written contract, and that it in part rested in parol.</p> <p>3. Reformation of Instruments — Equity—Mutual Mistake — Parol Evidence.</p> <p>Where" tbe specific performance of a written contract is sought in an action, it is competent for tbe defendant to show by parol evidence tbe omission of certain parts of the agreement by mistake or inadvertence of tbe parties, their draftsman, or agent, in drawing up tbe instrument.</p>

Appeal by defendant from Rountree, J., at March Term, 1914, of CUMBERLAND. Civil action. It was admitted at the trial that the policy declared on and presented by plaintiff had been duly executed by defendants and-that Peter J. Murphy, the insured named in the policy, was dead, having died on 19 February, 1913.

<p>Appeal by defendants from Adams, J., at February Term, 1914, of MECKLENBURG.</p>

<p>Appeal by both parties from Adams, J., at May Term, 1914, of Mecic-LENBUKG. *</p> <p>PLAINTIEE’S APPEAL.</p> <p>Civil action to permanently enjoin defendant from operating its railway along what was Brevard Street in Charlotte in front of plaintiff’s property and for permanent damages if injunction is denied.</p> <p>His Honor, after hearing all the evidence, denied the injunction, and submitted the issue of permanent damages to the jury. The plaintiff appealed from the judgment denying' the injunction.</p>

<p>Appeal by plaintiff from Adams, J,, at May Term, 1914, of Mecic-LENBURG.</p> <p>■ Civil action to recover damages for physical injury caused by alleged negligence on tbe part of the defendant railroad company.</p> <p>At close of plaintiff’s evidence, on motion, there was judgment of non-suit, and plaintiff, having duly excepted, appealed.</p>

<p>Appeal by defendant from Harding, J., at September Term, 1914, of Polk.</p>

Appeal by plaintiff from Shaw, Jat June Term, 1914, of SCOTLAND. Tbis is a proceeding in summary ejectment under tbe landlord and tenant act, begun before a justice of the peace and heard on appeal in the Superior Court. In 1881 L. B. MeLaurin sold the land in controversy to the defendant for $1,000, of which $200 was paid in cash and the remainder secured by mortgage on the land.

<p>Divorce a Mensa — Custody of Child — Former Decision — Appeal and Error— Improvident Appeal.</p> <p>In tbis suit for divorce a mensa■ it was directed on a former appeal (166 N. 0., 90) that the lower court retain jurisdiction of a minor child of the marriage until the hearing, etc., and to refrain from changing the custody of the child or permitting it to be carried out of the State, and the judgment of the lower court having already been sustained as in accordance with the former appeal, this appeal becomes irrelevant and improvident.</p>

<p>Appeal by- defendants from Allen, J., at February Term, 1914, of New Hanover.</p> <p>Civil action, tried upon these issues:</p> <p>1. Is tbe plaintiff tbe owner in fee and entitled to tbe immediate possession of tbe lands and premises' described in tbe complaint ? Answer: “Yes.”</p> <p>2. Did tbe defendants wrongfully trespass upon and injure tbe plaintiff’s property, as alleged in tbe complaint? Answer: “Yes.”</p> <p>3. Wbat damages, if any, is tbe plaintiff entitled to recover against tbe board of commissioners of New Hanover County? Answer: “$1,400.”</p> <p>4. Wbat damages, if any, is tbe plaintiff entitled to recover against tbe defendants in tbis action, other than tbe board of commissioners of New Hanover County? Answer: “$1,400.”</p> <p>5. Did tbe board of commissioners of New Hanover County enter upon and remove rock and other road-building material from tbe plaintiff’s lands under, by virtue of, and in pursuance to a lease or contract from I. B. Ebodes? Answer: “Yes.”</p> <p>6. Has tbe board of commissioners of New Hanover County paid tbe said I. B. Ebodes and bis personal representatives in full for all tbe rock and road-building material quarried from tbe plaintiff’s land ? Answer: “Yes; up to 1 February, 1914.”</p> <p>7. Is tbe plaintiff’s cause of action barred by tbe statute of limitations ? Answer: “No.”</p> <p>8. Wbat damages, if any, from pumping water across the plaintiff’s land ? Answer: “$100.”</p> <p>From tbe judgment rendered, both defendants appealed.</p>

Appeal by plaintiff from Lwne-, J., at August Term, 1914, of UNION. Civil action to restrain the defendant from carrying on the barber business in the town of Monroe, N. C., by reason of a written contract to that effect entered into between them in December, 1902.

<p>Superior Courts — Verdicts Taken by Clerks of Court — Agreement of Counsel —Notification to Counsel — Judgments Signed Out of Term — Appeal and Error.</p> <p>By agreement of counsel, tbe clerk of tbe Superior Court can represent tbe judge in taking tbe verdict of tbe jury; and when so done, and counsel representing one of tbe parties are not present, owing to tbe failure of tbe deputy clerk to notify them as be bad promised to do, tbe validity of tbe verdict is not thereby affected, especially' when no prejudice to tbe complaining party bas been shown. Agreements of counsel that tbe clerk should take tbe verdict of tbe jury and judgment be mailed to tbe judge to be signed .as out of term is discussed and disapproved, though not held for error.</p>

Appeal by plaintiff from Devin, Jat August Term, 1914, of G-uil-Eobd. This is an appeal from an order dismissing the action, upon tbe ground that the summons is void or irregular. The summons was issued by the clerk of the Superior Court of Guil-ford County, North Carolina, on 12 August, 1914, and was made returnable to the next regular term of said court, which commenced on the 17 th of said month. The summons was received and served by the sheriff on the 13th of said month.

<p>Appeal by plaintiff from Devin, J., at August Term, 1914, of GUIL-FORD.</p> <p>Civil action. From a judgment sustaining motion to nonsuit, tbe plaintiff appealed.</p>

Appeal by plaintiff from Shaw, J., at October Term, 1914, of Mece:-LENBURG. Civil action, heal’d on appeal from a justice’s court. The action was to recover $191.06, with interest from 22 April, 1913, for goods and ■ building material sold by plaintiff to defendant.

Appeal by defendant from Lyon, J., at February Term, 1914, of PERSON. This is an action under the Federal employers’ liability act to recover damages for the alleged negligent killing of Kemp Saunders, who was struck by a southbound freight train on the yards at Thomasville, while crossing the southbound main line returning to the camp train, to the crew of which he belonged.

Appeal by plaintiff from Adams, J., at February Term, 1914, of MeckleNbueg. This is an action brought by the plaintiff against the register of deeds of Mecklenburg County for the penalty prescribed for the issuing of a marriage license to his daughter, not 18 years of age. The action was tried before Judge Adams and the issues involved, including the issue of “reasonable inquiry,” submitted to a jury and answered in favor of the defendant.

Appeal by defendant from Devin, J., at August Term, 1914, of DAVIDSON. Civil action. It appeared tbafc plaintiffs had conveyed to defendants a certain interest, six-fifteenths, in a piece of property on which there was a flouring mill with engine, boiler, and usual machinery and fixtures, and the action is brought to collect note given for the purchase money and to foreclose a mortgage on the property to secure the same.

<p>Appeal by plaintiff from Rountree, J., at March Term, 1914, of Cum-BERLAND.</p> <p>This is an action instituted by tbe plaintiff, administrator of D. A. McAllister, for tbe wrongful death of bis intestate, alleged to bave been caused by tbe negligence of tbe defendant. Tbe allegations of negligence in tbe complaint are as follows:</p> <p>“That on tbe night of 29 December, 1912, tbe plaintiff’s intestate, while walking near tbe track, or attempting to cross tbe track of tbe defendant’s company, and dressed only in bis underclothes, was struck by a locomotive of tbe defendant company, near tbe signal station at Beard, N. C., which locomotive was drawing a freight train, and which, at tbe time of tbe accident above referred to, was being run and operated without tbe use of headlights of any description, and at tbe time herein referred to was giving no signal by bell, whistling, or otherwise, in consequence of which acts on the part of the defendant company the plaintiff’s intestate was struck, wounded and bruised, from the effects of which he died on_January, 1913.</p> <p>“That the injuries above referred to, and the death of plaintiff’s intestate resulting therefrom, were caused by the negligence of the defendant company and its agents and employees.”</p> <p>It appears from the evidence that at about 2 o’clock a. m. on 29 December, 1912, D. A. McAllister was found on the right-hand side of the-track of the defendant, between Wade and Beard, N. 0., stations about 5 miles apart, and at a point about 150 yards from Beard station. The deceased was lying on the ground, with his head on a cross-tie, and had a large hole in his left side, caused by an injury from which he after-wards died. The deceased was drinking and dressed in his night-clothes.</p> <p>It was in evidence that the right of way of the defendant company between these two stations had been used as-a path for pedestrians for twenty-five or thirty years.</p> <p>It also appears from the evidence that an extra freight' train passed Wade station a short time before the deceased was found, which was running without a headlight, and that the only lights thereon were two ’small lights, one on each side,' used as classification signals to indicate that the train was an extra. The witnesses McNeill and Gibson stated that this train, going southwardly, passed them as they were walking in the same direction toward Beard station, searching for deceased; that before they reached the deceased, and while some distance from Beard, they saw a bright headlight of a train coming towards them in a north-wardly direction; that they could see all the way to Beard station, and that there was no man or any other object upon the track. It is admitted that the two trains passed at a point south of Beard station, and that the track between Wade and Beard is straight all the way.</p> <p>It was contended by the plaintiff that the deceased was killed by the train which had no headlight. It was contended by the defendant that if the deceased was killed by any train, it was the train going north, which had a headlight, or that if killed by the train running without a headlight, the deceased was not struck by the engine, but by some other part of the train.</p> <p>The defendant offered evidence tending to prove that the engine of the freight train was equipped with an electric headlight when it left Rocky Mount; that the light went out at Dunn because the wire that clutches the carbon burned in two, and that the engineer tried to repair it and could not do so.</p> <p>His Honor charged the jury, among other' things, as follows: “It is my business to assist you in arriving at a correct answer to the questions which will be given you in the form of issues by calling your attention, coolly and dispassionately, to what the contentions of the parties are, and what the evidence is sustaining those contentions, and what the law is which you must apply to the facts which have been testified to, in order to enable you to answer those issues.</p> <p>“You are not to decide this case from any sympathy or consideration for the deceased man, or any admiration for his good qualities or detestation for his bad qualities, if he should have any. You are not to decide the case for or against the defendant because it is a railroad. Kailroads are extremely useful things, and.if property is taken, by way of a jury’s verdict, from a railroad when the evidence and law does not justify it, it is robbery — nothing less than robbery, and if that sort of thing prevails to any very large extent the railroads are crippled. You can easily see that every industry, the people from whom they buy, the lumber men and the steel men, are crippled, and those in turn from whom they buy are crippled, and we have a serious catastrophe. But not to award a verdict in accordance with the law and testimony' in behalf of the plaintiff 'would be equal robbery. So as honest men and good jurors it is your business, without regard to any moving appeals or any power of oratory, coolly and quietly, without sympathy and without prejudice and without passion, but to dispassionately try to pass on the evidence and reconcile it and answer the questions which will be submitted to you.” The plaintiff excepted.</p> <p>“Now, in order to enable you to answer the first issue 'Yes/ you must find first that he was struck by a train of the defendant; that that train had no electric headlight, as required by statute, and that not having the headlight was the cause, and the proximate cause, of the injury. It does not make one particle of difference whether there was any headlight or not. That might have been negligence, and I tell you, as argued by Mr. Shaw and admitted by Mr. Kose, it was negligence for them to run a train without an electric headlight, because the statutes so require. But that would be immaterial unless the train that did not have an electric headlight hit him, and would not have hit him if it had had an electric headlight. Bo you understand that?</p> <p>“The proximate cause is the dominant, efficient cause — that cause without the operation of which the accident would not have happened.” The plaintiff excepted.</p> <p>“If you shall find, by the greater weight of the evidence, the burden of proof being upon the plaintiff to so satisfy you, that the deceased 'was struck by the train which was running without a headlight, and that the failure to have a headlight was the cause, and the proximate cause as I have defined it to you, of the deceased being struck and killed — that is, that the deceased would not have been struck if the train had had an electric headlight — then you will answer the first issue ‘Yes.’</p> <p>“But if you should not be satisfied by the greater weight'of the evidence that the deceased would not have been struck if the train had had an electric headlight burning — that is to say, if you are not satisfied that Mr. McAllister would not have been struck if the light had been burning — then you will answer the first issue ‘No.’ ” The plaintiff excepted.</p> <p>“And, again, if you should find from the evidence, and by its greater weight, that the deceased was not struck by the engine, but that the engine had passed the deceased and that he was struck by some other portion of the train, or by falling against it, or otherwise, then you should answer the first issue No.’ ” The plaintiff excepted.</p> <p>The jury answered the first issue as to negligence in the negative, and the plaintiff appealed from the judgment rendered in favor of the defendant.</p>

Appeal by caveators from Lane, J., at August Term, 1914, of UNION, This is an issue 'of devisavit vel non. These issues were submitted to the jury: 1. Is the paper-writing offered in evidence, and every part thereof, the last will and testament of W. L. and M. S. Griffin, or either of them ? Answer: “Yes.” 2. If not, did the said W. L. and M. S. Griffin sign the said paper-writing? Answer: “Yes.” 3.

Appeal by plaintiff from Rountree, J., at February Term, 1914, of BobesoN. Petition for partition of a tract of land, heard on appeal from the clerk. On the hearing it was properly made to appear that J. W. Oaulk and his then wife, Fannie, the present defendant, were seized and possessed of an estate by entireties in the land, and that the husband, J. W. Caulk, obtained an absolute divorce by decree of the court, on account of the adultery of the wife.

<p>Evidence — Motions—Inspection and Copy of Papers — Interpretation óf Stat- . . utes — Court’s Discretion.</p> <p>Upon motion to allow inspection or copy of books, papers, etc., before trial (Revisal, 1656), it must be made'to appear tbat tbe instrument in question relates to tbe merits of tbe action or is pertinent to tbe issue; or the motion should be denied; and when it is of tbe character authorized by the statute to be copied or inspected, etc., it is expressly left within the discretion of the trial judge whether or not he will make the order sought; and should he refuse to do so, it still rests within his discretion to compel the production of the writing later, or upon trial, when its competency and pertinency as evidence bearing on the issue may be better determined.</p>

Appeal by defendant from Lyon, J., at March Term, 1914, of Ala-MANCE. This is an action to recover damages for the wrongful death of the plaintiff’s intestate, caused, as alleged, by the negligence of the defendant, who is the proprietor of a private sanitarium. The allegations of negligence in the complaint are as follows: “Second.

<p>Appeal by plaintiff from Lane, Jat May Term, 1914, of DavidsoN.</p> <p>Civil action. There was evidence on part of plaintiff tending to show that defendant company contracted and agreed with plaintiff to ship plaintiff thirty-six vehicles in two minimum car-load lots, the first to be delivered not later than 1 February, 1913, and the second, 1 May, 1913, upon specifications set forth in a written order and agreement between the parties; that defendant company wrongfully failed to deliver said buggies, and plaintiff, who was engaged in the general hardware business, and ready and able to dispose of buggies at a profit, lost the sale of some thirty or forty of the buggies, and the profit on each was $15.</p> <p>On the question of the amount of damages, the plaintiff offered witnesses who testified as follows:</p> <p>“I was president of Davidson Hardware Company, and it was, at the times mentioned and had been for some years prior to 1 February; 1913, engaged in general hardware business, farm implements, and buggies; had been selling buggies since February, 1910, I believe; had handled buggies manufactured by defendant company during year of 1912. On 1 February, 1913, we had warehouse in rear of store and had same force employed to handle buggies. Mr. Young was salesman at the time. Plaintiff did not get any of the buggies from defendant under the contract; first notice we got of refusal to ship was some time in February, 1913. The effect of our failure to get these buggies was a loss of the sale of probably thirty or forty buggies. Ve bought the buggies to sell at a profit.”</p> <p>Q. “How many buggies, in the ordinary course of business, would you sell in the spring trade ?” A. “Judging from the prior year to that, and from this year, forty to fifty. Our best buggy trade during the year is in March, April, and May. The buggies under contract were runabouts, open buggies, general buggies. "We sold such buggies at a profit of about $15 each.” •</p> <p>Q. “How much were you damaged, if at all, by the failure to receive these car-loads or shipments of buggies ?” A. “$15 a job figures up $540.”</p> <p>Cross-examination: “Do not know positively how many applications had for buggies from that time till first of May. Do not know how much would have made on any particular buggy, in any particular trade, only on the average the year, this year and the prior year.”</p> <p>Baxter Young, for plaintiff, testified: “Was secretary and treasurer of plaintiff. The first notice we got that defendant would not ship the buggies under this contract was about the middle of February, 1913. It took us till 4 May or 5 May, 1913, to get other buggies to supply the demand for buggies in our business. In the meantime we were unable to supply the demand for buggies in our business.”</p> <p>Q. “What profits were made on sale of buggies, these buggies, buggies of this kind ?” A. “Generally made $15 a buggy.”</p> <p>Q. “In ordinary course of business how many buggies could you have sold?” A. “According to this year and last year, we sold forty or fifty. After we failed to get buggies of defendant, handled Rock Hill buggies; had handled Delker Bros, buggies one year. It was a good selling buggy. Had not contracted with any purchaser to sell any of the buggies.”</p> <p>Redirect examination: Q. “State, in the course of business, what was your manner of selling buggies, whether you took orders or sold a man a buggy.” A. “Sold them retail, the same as you would shoes or grocer-. ies or anything a man comes in to buy and you sell him if you can.”</p> <p>The court charged the jury that, on the evidence, if they believed this, •defendant had broken the contract, but there were no facts in evidence to justify more than nominal damages of 5 cents, and plaintiff excepted and appealed.</p>

Appeal by defendant from Devin, J., at Fall Term, 1914, of David-SON. Civil action tried upon this issue: Is defendant indebted to the plaintiff, and if so, in what amount? Answer: “Yes; $350.” From the judgment rendered, defendant appealed.

Appeal by defendant from Lane, J., at Spring Term, 1914, of Stoees. Civil action to recover the possession of a tract of land. There was a verdict and judgment for the plaintiff, and.the defendant appealed.

<p>1. Railroads — Master and Servant — Federal Act — Issues as to Damages— Negligence — Contributory Negligence — Diminution of Damages.</p> <p>It is not required in an action brought under the Federal Employers’ Liability act that damages be assessed under separate issues, one as to the full amount sustained and the other as to the amount to be deducted therefrom by the answer to the issue of contributory negligence; and where the trial judge has correctly charged the jury in this respect, under the one issue of damages, it will not be held as erroneous.</p> <p>2. Railroads — Negligence—Evidence—Curve—Unobstructed View.</p> <p>■Where the plaintiff’s intestate has been killed by the defendant railroad’s train, it is competent for a witness to testify that a curve near the place of the injuiw did not interfere with the engineer’s view from his engine at a certain point north of the place, when such is relevant to the inquiry as to whether the engineer saw, or by keeping a proper lookout could have seen, the danger of the intestate in time to have avoided killing him.</p> <p>3. Trials — Nonsuit—Evidence—How Construed.</p> <p>In this case it is held that there was sufficient evidence to take the case to the-jury, viewing it in the light most favorable to the plaintiff, and defendant’s motion to nonsuit was properly disallowed.</p> <p>4. Railroads — Federal Employers’ Liability Act — Master and Servant — Negligence — Common Law — Last Clear Chance — Trials—Instructions—Appeal and Error.</p> <p>The Federal Employers’ Liability act was passed for the benefit of railroad employees, to afford them a recovery of damages when under the common law their contributory negligence would have totally deprived them of the right; and where there is evidence that an employee of the defendant has placed himself in a position of danger on the track in front of an approaching train, but that the injury complained. of would not have been sustained, had the employees on defendant’s train kept a proper lookout ahead and had performed the duties required of them under the circumstances in stopping the train, the common-law doctrine of the last clear chance is applicable; and a requested instruction to the effect that the defendant would not be liable if it did all it reasonably could to stop the train in time, after seeing the intestate’s danger, is properly refused.</p> <p>Brown, J., dissenting; Walker, J., concurring in the dissenting opinion.</p>

Appeal by plaintiff from Garber, J., at May Term, 1914, of Haywood. These are three actions brought by the plaintiff, as trustee in bankruptcy of the Canton Cooperative Company, against W. M. Smathers, M. Y. Moore, and George J. Williamson, severally and respectively, to recover the amount of the subscription made by each of them to the said company.

Appeal by defendant from Long, J., at August Term, 1913, and from Harding, J., at April Term, 1914, of CabaeRtjs. Civil action to recover possession of a tract of land and to remove a cloud from title to same, arising by reason of a certain memorandum or contract in writing, signed by Mrs. M. L. Flowe, in terms as follows: Hickoey, N. C., 2 October, 1909.

Appeal by defendant from Connor, J., at April Term, 1914, of BuN-> COMBE. Action to recover tbe possession of land. There was a verdict for the plaintiff, and from the judgment thereon defendant appealed.

<p>Deeds and Conveyances — Indefiniteness of Description — Void Conveyances.</p> <p>A conveyance of. land as an undivided balf interest of a tract of land containing 200 acres, more or less, lying and being in a certain county on tbe waters of a certain creek, and covered by a certain State grant, is too indefinite of description to permit of parol evidence of identification,. it appearing tbat tbe grant referred to was a 640-acre tract and tbat tbe land described in tbe conveyance was an indefinite part of this tract.</p>

Appeal by defendant from Webb, J., at October Term, 1914, of HeN-DERSON. These were civil actions consolidated and tried by consent at September Term, 1914, of the Superior Court of Henderson County. The actions were brought for the purpose of recovering damages for the alleged negligent killing of plaintiffs’ intestates, which was caused by the falling of the wall of a dry-kiln of the defendant.

<p>Appeal by plaintiff from Lane, J., at May Term, 1914, of Davidsojst.</p> <p>Proceedings to condemn land for railroad right of way, heard on transfer from clerk of Superior Court.</p> <p>The evidence tended to show that the proposed right of way would lie over a tract of land owned by defendant in the town of Thomasville, N. C., suitable for building lots, the evidence of defendant being to the effect that the injury to the property arising from land actually required for the right of way, 2.13 acres, and the impaired value to the remainder of the tract would amount to from $10,000 to $19,000.</p> <p>The evidence on the part of plaintiff was to the effect that the damages recoverable would not exceed $2,500, the estimate of plaintiff’s witnesses being from $1,500 to $2,500.</p> <p>The plaintiff excepted to a portion of his Honor’s charge in which he permitted the jury to consider, as an element of damages to the portion of the property not actually taken, the “annoyance, noise, dirt, smoke, cinders, and like discomforts necessarily attendant on the operating of a st.eam railway through the property,” plaintiff insisting that these considerations on the question of damages was disapproved by a recent decision of this Court in B. B. v. Mfg. Go., 166 N. O., 168.</p> <p>There was verdict assessing damages at $6,400. Judgment, and plaintiff excepted and appealed.</p>

Appeal by plaintiff and intervenor from Harding, Jat February Term, 1914, of Bukcombe.

<p>Appeal by defendant from Harding, ■J., at April Term, 1914, of MONTGOMERY.</p> <p>This was an application for recorda/ri and supersedeas, heard at chambers on 16 April, 1914.</p> <p>Plaintiff recovered three judgments against defendant before O. 0. Bruton, a justice of the peace: one for $100, on 8 December, 1913; another for $131.25, on 19 February, 1914; and the last one for $75, on the same day. The summons in each case was duly served and the trials proceeded regularly, though the defendant was not present. He at-0 tempted to appeal, but did not give notice thereof as required by Eevisal, secs. 1491, 1492; The papers in the first case were docketed, not at the next (January) term of the Superior Court, but after the said term. He afterwards applied for this recordari in all the causes, and the judge found the foregoing facts, and further, that defendant had been guilty of laches, and was negligent as to all three cases. He thereupon dismissed the first case, which had been docketed, and refused to allow the other two to be docketed. Defendant appealed.</p>

<p>1. Corporations — Subscription to Stock — Trusts and Trustees — Unpaid Stock —Creditors.</p> <p>Subscriptions of indebtedness for stock due a corporation are a trust fund for tbe benefit of its creditors, and whatever may be the rights of the stockholders as among themselves, the creditors have the right to have such fund collected and applied to the discharge of their debts, which may be required by the courts, when necessary, and in a proper and appropriate action.</p> <p>2. Corporations — Stock Subscriptions — Consideration—Acceptance of Stock.</p> <p>It is not lawful for a stockholder in a corporation to pay for his stock only by lending his credit to the concern, or by indorsing the corporate note; but no other consideration is necessary to be shown, in order to fix him with a stockholder’s liability to the corporation creditors, than his acceptance of and holding the stock issued to him.</p> <p>3. Corporations — Unpaid Subscriptions — Trustee in Bankruptcy — Right of Action.</p> <p>A trustee in bankruptcy of a corporation may, since the amendment to the bankruptcy act of 1910, maintain an action against the shareholders of the corporation to compel payment of their unpaid subscriptions to its stock to the extent necessary to protect its unpaid creditors; and he is not bound by any illegal acts of the corporation with respect to the issuance of the shares.</p> <p>4. Same — Bankrupt Courts — Orders—State Courts — Collateral Attack.</p> <p>Where upon petition filed, by the trustee of a bankrupt corporation in proceedings in the Federal court, a citation is issued to a stockholder to show why an assessment should not be made against him to collect the unpaid amount of his subscription, and the trustee is authorized to bring his action in the State court for the purpose of enforcing payment, and these proceedings appear to be regular in all respects, the validity thereof cannot be questioned in the State courts.</p>

Appeal by defendant from Lyon, J., at June Term, 1914, of ObaNge. This is an action against tbe defendant to recover damages for delay in delivering a telegram, alleged to bave been caused by its negligence.

Appeal by defendant from Harding, J., at April Special Term, 1914, of Buktcombe. Tbis is a motion, to set aside a judgment upon tbe ground of excusable neglect. Tbe summons was issued and served 9 March, 1910, returnable to a term of court beginning tbe first Monday after tbe first Monday in March, 1910. c,The complaint was filed 31 May, 1910.

Appeal by defendant trust company from Lyon, J., at January Term, 1914, of AlamaNce. This action was brought by the plaintiff to recover of the defendants S. A. Morrow and wife the sum-of $1,264.50,'alleged to be the balance due bim on a contract, dated 14 June, 1911, to erect a hotel building for them on their lot, 36 x 70 feet, in the city of Burlington, opposite the Presbyterian Church.

Appeal by defendant from Gline, J., at November Term, T914, of BuNcombe. Civil action heard on case agreed.

Appeal by defendant from Justice, J., at February Term, 1914, of BUNCOMBE. This action involves tbe title to the land indicated on the diagram filed in the record, by the letters A, D, E, F, Gr, H, and back to A, they being the yellow lines on the map.

Appeal by defendant and ber husband from Connor, J., at April Term, 1914, of BuNcombe. Tbis is a civil action. From a judgment in favor of tbe plaintiff against tbe feme defendant, Caroline, sbe and ber husband, O. D. Revell, appeal.

Appeal by defendant from Adams, J., at July Term, 1914, of RaN-dolph. Tbis is an action to recover damages for injuries alleged to bave been caused by defendant’s negligence. Tbe testimony of tbe plaintiff in bis own behalf will sufficiently show tbe nature of tbe case and enable us to understand tbe exceptions: He is 23 years old, bad lived in Asbboro for about seventeen years, and bad worked for tbe Norfolk Southern Railroad Company, beginning on 4 August, 1913.

Appeal by plaintiff from Webb, J., at March Term, 1914, of Wilkes. Civil action to enforce the enjoyment of an estate in standing timber claimed by plaintiff on the land of S. C. Parsons and for damages for wrongful interference with same. Defendant denied liability and set up a counterclaim against plaintiff for wrongfully cutting a part of tbe timber. On issues submitted, tbe jury rendered tbe following verdict: 1. Did tbe defendant S. 0.

Appeal by defendant from Adams, at April Term, 1914, of Mece:-LENBURG.- On 27 March, 1913, the plaintiff was driving bis automobile from the Seaboard Air Line Railway station at tbe north end of Tryon Street in the city of Charlotte, in a southerly direction along that street to Ninth Street, intending to turn into the latter street; but when he reached it, he found it blocked by a wagon and a rope across it.

Appeal by defendant from Cline, J., at August Term, 1914, of Buncombe. This is an action to recover on a policy of life insurance. In the year 1902 the intestate of the plaintiff was insured by the defendant in two policies of insurance, one for $110 and the other for $55. • Both policies were identical in form. The policies were made payable to the executors or administrators of the insured, Melvin Tilson.

Appeal by plaintiffs from Devin, Jat March Term, 1914, of EoR-SYTH. The plaintiff complained as follows: 1. Plaintiffs above named, under the firm name of Carpenter, Baggott & Co., were at the times hereinafter mentioned engaged (in the ordinary course of their business) in buying and selling cotton for a commission. 2.

Appeal by plaintiff from Garter, J., at May Term, 1914, of JacksoN. Civil action, tried upon these issues: 1. Did the defendants breach their contract with the plaintiffs, as alleged in the complaint ? Answer; “Yes.” 2. What damage, if any, is the plaintiff entitled to recover ? Answer: “One cent.” 3. Is the plaintiff indebted to the defendants on their counterclaim? Answer: “No.” 4. If the plaintiff be so indebted, in what amount?

Appeal by defendant from Carter, J., at January Term, 1914, of Haywood. Civil action to recover $750 as damages for a breach of the contract sued on, in failing to deliver the lumber therein sold to the plaintiff. The action .was commenced on 23 June, 1913, returnable to the Jury term of Haywood Superior Court. The complaint was filed on 9 July following.

Appeal by defendant from Webb, J., at Spring Term, 1914, of Teakt-SYLVANIA. Civil action to recover damages for personal injuries caused by alleged negligence on the part of Gr. W. Vanderbilt, heard on demurrer and motion to abate. Gr. W. Vanderbilt- having died, his executors were made parties defendant.

<p>Supreme Court — Retaxing Cost — Full Cost of Transcript — Rules of Court.</p> <p>Where the defendant is the successful party on appeal, and on his motion to retax costs in the Supreme - Court it appears in his written application in this Court that there was no unnecessary or superfluous matter in the transcript, and that the whole thereof was pertinent and necessary to a proper statement of the facts upon which the assignments of error were based, and the allowance specifically made in Rule 31 (164 N. O., - 549) was not sufficient to pay for the cost of printing, which is not denied by the other party, it presents a proper instance for the Court to specially • order that the full cost of printing the transcript be taxed against the plaintiff and the surety on his prosecution bond, under the further provisions of Rule 31.</p>

Appeal by defendant from Garter, J., at March Term, 1914, of Chee-OKEE. Civil action. Tbe judge by consent found the facts and rendered judgment. The following are the facts: 1.

Appeal by plaintiff from Justice, J., at February Term, 1914, of Buhcombe. Civil action to recover for value of services rendered by plaintiff for defendant. It appeared in evidence that plaintiff was president of defendant corporation and sued for bis, salary or wages of $500 per month, as due per contract for services in taking orders and making sales of furniture for defendant corporation.

Appeal by defendant from Harding, J., at July Term, 1914, of CLEVELAND. This is an action to recover damages for personal injury caused by the explosion of a dynamite cap. The material parts of the evidence are stated in the opinion. The defendant moved to dismiss the action because of the pendency of another action for the same cause in Eutherford County, in which a judgment of nonsuit had been entered. The motion was overruled, and the defendant excepted.

<p>1. Removal of Causes — Extension of Time to Plead — Petition—Time to File —Interpretation of Statutes.</p> <p>An order of the trial judge extending time within which to file ifieadings, under our statute, has the same force and effect as if the extended period had originally been allowed by the statute; and where a nonresident defendant is sued by a resident plaintiff in our courts for an amount cognizable in the Federal court, and the plaintiff fails to file his complaint within the time allowed, and obtains an extension of time to file pleadings duly excepted to by the defendant, which upon notice given files its petition and bond for removal to the Federal court and moves thereon at the first available term of the Superior Court wherein the action was commenced, it is held that the defendant’s motion was in time, and should be allowed, if the cause is otherwise removable.</p> <p>2. Removal of Causes — Foreign Corporations — Lessee Railroads.</p> <p>The leasing and operating of a domestic railroad by a foreign railroad company cannot have the effect of making the lessee road a domestic corporation, or prohibit it from removing a cause to the Federal court under the Federal act permitting it. Herrick v. R. R., 158 N. C., 310; Hurst v. R. R., 162 N. C., 368, cited and distinguished.</p> <p>3. Removal of Causes — Citizenship — Issue of Fact — Jurisdiction—Federal Courts.</p> <p>An issue of fact raised by the complaint and petition as to whether a corporation, seeking to remove a cause brought against it by a resident plaintiff, to the Federal court, is a foreign corporation and entitled to have its motion granted for diversity of citizenship, is one for the determination of the Federal court where the petition upon its face is regular and sets forth facts sufficient for the removal of the case, and the bond accompanying it is a proper one.</p>

Appeal by plaintiff from Hardin, J., at February Term, 1914, of RowaN.

<p>1. Pleadings — Interpretation—Cause of Action.</p> <p>Under our Code system of pleading, actions should be tried upon tlieir merits, construing every intendment in favor of the pleader; and a complaint may not be overthrown by demurrer if in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, however inartificially it may have been drawn, or uncertain, defective, or redundant may be its statements.</p> <p>2. Same — Charitable Hospitals — Selection of Employees — Ordinary Care— Demurrer.</p> <p>A hospital maintained for charitable purposes is liable in damages caused by .its failure to use ordinary care in the selection of its employees, and where one who has been received as a patient therein alleges in his complaint, in an action to recover damages, that he has been injured by reason of the failure of the defendant to exercise the care required in this respect, a demurrer thereto on the ground that the complaint does not state facts sufficient to constitute a cause of action is bad.</p> <p>Hoke, ,T., did not sit,</p>

Appeab by defendant from Adams, J., at-March Term, 1914, of Meck-lENbueg. Civil action to recover damages for death of plaintiff’s intestate, caused by the alleged negligence of defendant company. There was verdict and judgment for plaintiff, and defendant excepted and appealed.

Appeal by defendant from Lyon, Jat May Term, 1914, of Durham:. This action was brought to recover the sum of $10,144.50, a¿ due upon four several notes indorsed in blank by the defendant.

Appeal by plaintiff from Adams, J., at May Term, 1914, of Meck:-LENBURG. This is an action to recover damages for personal injury, caused, as the •plaintiff alleges, by the negligence of the defendant. . The injury occurred at a public railroad crossing by a collision between the train of tbe defendant and an automobile which was owned and driven by Mr. J amison and in which the plaintiff was a guest.

Appeal by plaintiff from Justice, J., at April Term, 1914, of BuNCOMBE. Civil action to restrain tbe defendants in tbe use of tbe name Zagier in connection with tbe clothing and furnishing business in tbe city of Asheville. A demurrer in terms to tbe complaint was sustained and judgment entered dismissing tbe action, and plaintiff excepted and appealed.

<p>1. Municipal Corporations — Cities and Towns — Discretionary Powers — Streets and Sidewalks — Negligent Construction — Damages — Constitutional Law — Taking of Private Property.</p> <p>A city is not liable to owners of lands abutting upon the street for any detriment .to their property resulting from the grading of the street, done in the discretionary power of the city in making needed improvements, unless the damage done thereto resulted from a negligent grading of the street, or the State has given its consent by statute. The principles upon which this doctrine rests discussed by Walker, J., and differentiated from those applying to the taking of private property for public use without just compensation.</p> <p>2; Municipal Corporations — Cities and Towns — Streets and Sidewalks — Negligence — Witness, Nonexpert — Evidence—Maps—Measure of Damages.</p> <p>Where damages are sought by the owner of lands adjoining a street of a city or town, alleged to have been caused by the negligent construction of the street by the city authorities, evidence of its negligent construction is not confined to the testimony of experts, for such construction may be shown by other witnesses in plaintiff’s behalf, using photographs of the locality in explanation and illustration óf the testimony, so as to give the jury a better idea as to whether or not damages had been caused, or as to their extent.</p> <p>3. Municipal Corporations — Cities and Towns — Streets and Sidewalks — Negligent Construction — Measure of Damages.</p> <p>Upon an issue as to the amount of damages sustained by the plaintiff to his lands abutting a city street, alleged to have been caused by the negligent construction of the street by the city authorities, it is competent for the plaintiff to show the cost of restoring his lot to its former condition and value, the jury to give the evidence such weight as they think proper.</p>

<p>1. Principal and Surety — Contracts—Indemnity—Notice—Date of Completion —Weather Conditions.</p> <p>Where a surety bond indemnifying the owner against loss under a con-' tract for the building of a house provides that the owner shall notify the guaranty company of the failure of the contractor to complete the house by a certain date, and that no liability shall attach to the company unless the owner shall promptly, and in any event not later than thirty days after knowledge of such default, deliver to the surety at its office in a • certain city .written notice thereof, and it is expressly provided in the contract, to which the bond refers, that delays caused by excessive bad weather should not be counted against the contractor, it is Held, that delays from the cause stated extends the time wherein the house was contracted to have been ■ completed, and that notification under the terms of the contract given after the date named, but within the extension thereof on account of the weather conditions, is sufficient.</p> <p>2. Trials — Nonsuit—Evidence.</p> <p>Upon a motion to nonsuit, the evidence should be considered in the most favorable aspect for the plaintiff; and there being evidence in this case that the plaintiff notified the surety in a bond given to indemnify him for loss on account of a contract entered into for the construction of a house, in accordance with the terms of the bond, the motion was properly denied.</p> <p>3. Trials — Instructions—Unconflicting Evidence — Directing Verdict.</p> <p>In an action to recover from an indemnity company damages caused to the owner by a contractor’s default under his contract to erect a house, the evidence being uncontradicted, it is held that the judge properly instructed the jury to find the amount of damages in plaintiff’s favor.</p>

<p>Vendor and Vendee — Goods Returned — Purchase Price.</p> <p>In an action for tlie purchase price of goods sold and delivered, it appeared that the purchaser returned a part of the goods as unsatisfactory, paying for the balance, and that the seller received and kept them. Held, the latter cannot recover for those returned, the case being governed by Medicine Go. v. Davenport, 163 N. C., 294.</p>

<p>1. Appeal and Error — Record—Trials—Instructions—Exceptions—Presumptions — Supreme Court — Discretionary Powers.</p> <p>When exceptions are taken to the refusal of the trial judge to give proper instructions of law upon the evidence and issues in controversy, which were duly requested, it must appear-of record that these instructions were not substantially given in the charge; and when the record does not set out the charge it will be presumed that the court correctly charged the law applicable to the case, though the Supreme Court, acting under its discretionary powers, may order the charge to be sent up when it thinks that a clear miscarriage of juS.tice may thereby be prevented. "</p> <p>2. Carriers of Goods — Live Stock — Improper Cars — Approved and General Use — Weather Conditions — Rule of Prudent Man — Negligence.</p> <p>The defendant railroad company used for the transportation of the plaintiff’s horse an open slat car, the slats being 4 or 5.inches apart, and the evidence was conflicting as to whether the weather was bitter cold- and penetrating, or mild and balmy. There was evidence that the shipment was delayed for several hours, and that the horse contracted pneumonia and shortly afterwards died of the disease; and also that the car was one approved and generally used for the purpose of such shipments. Held, the carrier is required to exercise due care, under the rule of the prudent man, according to the existing circumstances, in the selection of a proper car for the shipment, and will not be exempted from liability solely for the reason that the car was such as is generally used under ordinary conditions for such shipment, as this may not be the equivalent of the proper care required.</p>

Appeal by plaintiff from Cline, J., at August Term, 1914, of Busr-COMBE. Civil action, tried upon these issues: Was the plaintiff, Henry H. Turner, injured by the negligence of the defendant, as alleged in the complaint? Answer: “No.” What damage, if any, is the plaintiff entitled to recover ? Answer: “Nothing.” From the judgment rendered, the plaintiff appealed.

<p>1. Trusts and Trustees — Parol Trusts — Evidence—Common Law.</p> <p>There being no statute in North Carolina to the contrary, the common-law rule prevails here, that a trust may be created by parol agreement entered into between the parties before or at the time of the transmission of the legal title to lands, and that when created it attaches to and becomes a part of the title, the difference between establishing a parol trust and that under a sufficient writing being only in the mode and degree of proof.</p> <p>2. Same — Equitable Mortgage — Equity of Redemption — Foreclosing—Power of Sale — Courts—Decree.</p> <p>Where it is established that a purchaser of lands agreed by parol at the time of the purchase that he would bid in the lands at a certain price and hold them for the benefit of the other party to the agreement, and convey to him upon a part payment of the xrarchase price at a specified time, and take a mortgage for the balance, etc., and subsequently refuses to carry out this agreement, in a suit to declare a parol trust upon the land it is Held, that the effect of the conveyance is to vest in the plaintiff an equitable estate of redemption, which cannot be foreclosed in the absence of an abandonment'of the right and in the absence of a power of sale, legally ascertained, except by decree of a court of equity, the relation of the parties being that of mortgagor and mortgagee.</p> <p>3. Trusts and Trustees — Parol Trusts — Equitable Mortgage — Readiness to Pay — Equity of Redemption.</p> <p>A parol trust in plaintiff’s favor engrafted upon the title to lands ac- ■ quired by the defendant, and the relation of mortgagor and mortgagee (without power of sale) having been established, an answer to the issue finding that the plaintiff was not ready, able, and willing to pay the money secured, does not necessarily bar the plaintiff’s right to redeem.</p> <p>4. Trusts and Trustees — Parol Trusts — Equitable Mortgage — Ready, Etc., to Pay — Issues—Verdict.</p> <p>The plaintiff having established by parol an interest in his favor in the nature of an equitable mortgage in the lands, conveyed to the defendant, it is Held, that an answer to an issue including the findings of facts, that the plaintiff was not and is not ready, able, and willing to comply with the terms of the agreement, does not bar the plaintiff of his equitable interest, it appearing of record that the plaintiff had offered to pay the full amount of the purchase price, with interest, etc., into court for the use of the defendant, and that actual payment was waived by him, and it is Further ■ held, under the instruction of the court, in this case, that the jury must have found by their answer to this issue that the plaintiff could not have paid the money from his own earnings, which does not preclude the right of the plaintiff to have obtained the money ' from other sources.</p> <p>5. Trusts and Trustees — Parol Trusts — Leases—Estoppel.</p> <p>In this action to establish an equity arising “in the defendant’s title to land” it is Held, that an issue as to whether the plaintiff was estopped by certain leases from maintaining his action for specific performance was correctly answered under the authority of Hauser v. Morrison, 146 N, C., 262.</p>

<p>Appeal by defendants from Qline, J., at August Term, 1914, of Buncombe.</p>

Appeal by defendant from Long, J., at March Term, 1914, of Cleve-LAND. Civil action to recover damages and penalty for the loss of a box of merchandise shipped to plaintiff on 7 October, 1911, from Hopkinsville, Ky., to Shelby, N. C. The plaintiff recovered judgment, and the defendant appealed.

Appeal by defendant from Long, J., at June Term, 1914, of Burke. Action for the recovery of damages for personal injury.

Appeal by defendant from Harding, J., at July Term, 1914, of LINCOLN. Civil action, tried upon these issues: 1. Was the plaintiff, Andie Clarke, injured by the negligence of the defendant, as alleged in the complaint ? Answer: “Yes.” 2. Did the plaintiff, by his own negligence, contribute to his own injury? Answer: “No.” 3. What damage, if any, is the plaintiff entitled to recover ? Answer: “$2,500.” From the judgment rendered, the defendant appealed.

Appeal by tbe defendants from Adams, Jat August Term,. 1914, of Cab ARBUS. Civil action, tried upon these issues: 1. Did Jackson Linker sign and deliver to Paul Linker tbe deed set out in tbe complaint, dated 25 September, 1912? Answer: “No.” 2. If so, did said Jackson Linker bave sufficient mental capacity to understand wbat property be was disposing of, tbe person to whom be was selling it, and tbe purpose for wbicb be was disposing of said property.?

<p>Appeal by plaintiff from Adams, J., at March Term, 1914, of Meck-lenburg.</p> <p>Civil action. From tbe judgment rendered, plaintiff appealed.</p>

<p>Appeal by defendants froih Long, J., at July Term, ,1914, of Catawba.</p>

Appeal by defendant from Cline, J., at May Term, 1914, of Hen-DERSON. This is an action to recover land, and for damages for cutting and removing timber from the disputed part thereof. The plaintiff claims the land in dispute as part of a tract of land granted from the State to Alf. Williams, 17 December, 1862, and con- • veyed by Alf.

Appeal by defendants from. Long, J., at May Term, 1914, of Caldwell. Civil action to' try title to land, tried upon these issues: 1. Are the plaintiffs the owners of the land described on the map and indicated by the figures 1, 2, 3, and 4, as alleged in the complaint? Answer: “Yes.” 2. Are -the plaintiffs estopped from maintaining this action against the defendants? Answer: “No.” 3. Is the plaintiffs’ cause of action barred by the statute of limitation ?

<p>Appeal by defendants from Adams, J., at July Term, 1914, of KaN-dolph.</p>

Appeal by defendant from Adams, J., at June Term, 1914, of Meck-LENBURG. Civil action, tried upon issues of negligence, contributory negligence, assumption of risk, and damage. Tbe jury found for tbe plaintiff upon eacb issue. From tbe judgment rendered, tbe defendant appealed.

Appeal by plaintiff from Webb, J., at January Term, 1914, of WlLKES. This is a motion to set aside a judgment rendered at August Term, 1912, of Wilkes Superior Court, beard before Webb, J., at January Term, 1914, of said Superior Court. Tbe action is to recover land and damages for trespass tbereon. Tbe summons was issued on 4'June, 1907, and served on 6 June, 1907.

<p>Appeal by plaintiffs Glazener and Eisber in No. 525, and by Lumber Company et als. in No. 526, at April Term, 1914, of TkaNsylvaNIA, from Cline, J.</p>

<p>1. Contracts, Written — Breach—Damages—Later Contract — Collateral Parol Agreement — Pleadings—Court's Discretion — Amendments—Issues.</p> <p>In an action to recover damages for a breach of a written contract for the sale of shares of the capital stock in a certain corporation, the defendant contended that this contract was superseded by a later one which the plaintiff admitted executing, but attempted to show by his evidence a separate agreement by parol that he could hold the defendant under the terms of the first contract if the defendant did not “treat him right” under the later one. This phase of the matter not having béen alleged, the plaintiff asked leave of the ..trial court to amend the complaint, which was refused. Held, the matter of amending pleadings lies within the discretion of the trial judge, and is not reviewable on appeal. Semble, the alleged contemporary parol agreement was too uncertain to be made available, and it is Further held, the amendment, had it been allowed, would have necessitated trying the case on the later contract, introducing new issues of which the defendant had no notice.</p> <p>2. Contracts — Breach—Damages—Second Contract — Amendments—Courts— Discretion — Nonsuit.</p> <p>Where upon a trial for damages for a breach of a written contract it is admitted that the contract sued on had been superseded by another and different one, requiring answers to issues not raised by the pleadings, and a requested amendment to the complaint has been refused by the trial judge, a judgment of nonsuit is properly allowed.</p> <p>3. Contracts — Breach—Damages—Second Contract — Nonsuit.</p> <p>The plaintiff sued for damages on breach of contract for the sale of certificates of capital stock in a corporation held by D., by the terms of which the plaintiff and defendant would have practically been created partners in equal interest with D., who was not a party to the contract. D. refused to perform the contract and failed to furnish the stock. The plaintiff afterwards acquired the stock and entered into a new contract with the defendant. ' This action is upon the first contract, and it is held that it would not lie, for the later contract necessarily superseded and put an end to it.</p>

Appeal-by defendant from Webb, J., at September Term, 1913, of BuRKE. Civil action to recover damages for wrongfully cutting timber on land claimed by plaintiff. Yerdict and judgment for plaintiff, and defendant excepted and appealed.

Appeal by plaintiff from Cline, J., at May Term, 1914, of HeN-DERSON. Civil action to recover land. On tbe issue as to title there was verdict for defendant. Judgment, and plaintiff excepted and appealed.