Volume 168 — North Carolina Reports

Appeal by plaintiff from Shaw, J., at September Term, 1914, of GASTON. Civil action to recover on a promissory note, as follows: $2,000. One day after date we promise to pay J. B. White or bis order tbe sum of $2,000, for value received of bim, interest at 6 per cent per annum from 1 July, 1902. . Tbis tbe 2d day of July, 1902. ■ Dallas Cottoe Mills, (Seal) J. R. Lewis, President. Attest: J. D. Moose, Secretary and Treasurer.

<p>1. Deeds and Conveyances — How Construed — Intent—Estates for Life.</p> <p>Under the modern doctrine that a deed should be interpreted as a whole to give effect to the grantor’s intent, and without undue weight to its formal parts, it is held that a deed for lands to the sons of the grantor as tenants in common, with an habendum “reserving and retaining” in the grantor “an estate in the land during his life and the lives of” his four daughters, naming them, expressing the desire of the grantor that he and his said daughters shall and may live on the said lands during their lives as members of his family, and after his death his daughters as members of the family or families of his sons, conveys to the sons the fee in the lands after the termination of the life interests reserved.</p> <p>2. Same — Repugnancy.</p> <p>A conveyance of the fee, with reservation in the habendum of a life estate in the grantor for his own benefit and for the use of his four daughters during their lives, will not be construed as repugnant when it appears, interpreting the deed as a whole, that it was the intent of the grantor that the grantees should take in remainder, nor will the word “reserves” used in connection with the first estate, be given a technical meaning to defeat the intent of the grantor thus ascertained.</p> <p>3. Deeds and Conveyances — Interpretation — Estates for Life — Expressed Motives.</p> <p>Where a deed to lands, by proper interpretation, conveys the fee in remainder after reserving to the grantor and his daughters life estates, the object -or motive for making the gift to the daughters, stated in the conveyance, will not be permitted to affect the clear intent of the grantor, as gathered from the unambiguous language expressed in the deed construed as a whole, it not being, in this case, inconsistent therewith.</p> <p>4. Deeds and Conveyances — Estates for Life — Reservation—Uses and Trusts —Statute of Uses — Estates in Remainder.</p> <p>Where the grantor reserves in his conveyance of land a life estate to himself and for the use and benefit of his daughters during their lives, with remainder over to his sons, it is immaterial whether .the life estate for the daughters is regarded as reserved directly to them or indirectly through their father, as their trustee, they having the use or equitable estate; for if reserved to them directly, the statute of uses 'would merge both the legal and equitable estates in the daughters upon the death of the grantor; and if reserved to them indirectly through the grantor, at his death the heirs at law would hold the legal title in trust for the daughters during their lives, with remainder over to the sons.</p> <p>5. Deeds and Conveyances — Estates for Life — Remainder—Limitation of Actions — Adverse Possession.</p> <p>1 The grantor of lands, reserving a life estate to himself and for the benefit of his four daughters f.or their lives, conveyed the remainder to his two sons in fee, who by proper conveyances divided their interest in the lands, expressly referring therein to the reservation of the life estates. Thereafter one of the sons conveyed to the other his estate in the divided lands, and continued to live thereon with his father and sisters until their death. After the death of his father and soon after the death of his last surviving sister, his grantee brought this action for possession of the land, to which he pleaded title by adverse possession and introduced evidence tending only to show that he had lived on the lands with his sisters during their lives and used the rents and profits. Held, the evidence was insufficient to be submitted to the jury upon the question of defendant’s adverse possession, and judgment should have been entered for the plaintiff.</p> <p>6. Same — Happening of Contingency — Time of Entry.</p> <p>Where the grantor of lands reserves a life estate in the lands for himself and also for the use and benefit of his daughters during their lives, with limitation over to his sons, who agree to a division of their interest and convey the same to each other by interchangeable deeds, and thereafter one of them conveys his interest to the other, not to take effect until “after the falling in of the life estate of the grantor’s daughters,” by the terms of this conveyance his grantee’s right of entry on the lands, or of possession, does not take effect until the happening of the event stated, and the grantor’s possession cannot be considered adverse until then, and at that time only the statute of limitations will commence to run.</p> <p>7. Estates Per Autre Vie — Uses and Trusts — Statute of Uses.</p> <p>The English law as settled by 29 Charles II., that where there is no special occupant in whom an estate may vest, the tenant per autre vie may devise it by will or it shall go to the executors or administrators and be assets in their hands for payment of debts; and by 14 Geo. II., ch. 20, that the surplus of such estates per autre vie, after payment of debts, shall go in the course of distribution like a chattel interest, was changed by Revised Code, brought forward in section 128, Rule 11, Code of 1883 (Revisal, sec. 1556), and under our statute the estáte per autre vie is descendible to the heirs of its owner. But this rule does not apply to the facts of this ease, where the estate was held in trust by the donor to the use of his daughters and at his death descended to his heirs at law charged with the trust, or where the statute of uses would execute the legal estate in the daughters for whose use the estate was created.</p> <p>8. Deeds and Conveyances — Estates for Life — Remaindermen—Limitation of Actions — Adverse Possession.</p> <p>A limitation over to the two sons of the grantor of lands after reserving a life estate in favor of the grantor and his daughters, in -which one of the sons conveyed his interest to the other during the continuance of the first estate, and remained in possession with his father and sisters : Held, the possession of the grantor was only permissive,, and not Adverse to the grantee and the daughters remaining in possession, until their death, and the possession of the grantor could not have been adverse, though the statute of uses did not unite in the daughters both the legal and the equitable title.</p>

<p>1. Judgments — Proceedings to Set Aside — Motions in the Cause.</p> <p>Where a judgment obtained before a justice of the peace is sought to be set aside by the defendant for lack of service of summons, the remedy is by motion in the cause made before the court which had rendered the judgment.</p> <p>2. Same — Limitations as to Time.</p> <p>The statutes limiting the time within which motions shall be available to set aside judgment to one year applying to judgments in all respects regular, do not apply to where there has been defective service of the summons in the action or entire absence of it.</p> <p>3. Process — Service—Methods Prescribed — Interpretation of Statutes.</p> <p>Where a statute provides for service of summons or notices in the progress of a cause by certain persons or designated methods, the specified requirements must be complied with in order to make a valid service of the process.</p> <p>4. Same — Telephones—Interpretation of Statutes.</p> <p>Revisal, sec. 439, providing that the summons in an action “shall be served ... by the sheriff: or other officer reading the same to the party or parties named as defendant, and such reading shall be a legal and sufficient service,” was originally enacted by the Legislature of 1876-77, and at a time when the telephone, ás a general means of communication was not in existence, and when the only method of service of process contemplated or provided for was the reading of the summons by the sheriff or other officer in the personal presence of the party to be served, contemplating the exhibition of the process to the party and affording him and the officer greater assurance, on the one hand, of its validity, and, on the other, that the person was the one designated. Hence, service of summons over a telephone line, the parties being necessarily separated and the method not contemplated by the statute, is not .valid. *"*’</p> <p>Clark, C. J., dissenting; Allen, J., concurring in the dissenting opinion.</p>

Appeal by defendants from Harding, J., at May Special Term, 1914, of Foestth. Tbe plaintiff alleges tbat be purchased a lot of furniture from tbe defendant with a warranty for twelve months against defects as to workmanship and material. Among this furniture was a sideboard, for which he paid about $177. The furniture was delivered, and about thirty days after its receipt, and before the defects appeared, the plaintiff, paid the purchase price for all of -the furniture.

<p>Appeal by defendant from Webb, J., at April Term, 1914, 'of Mitchell.</p>

Appeal by defendant from Long, J., at July Term, 1914, of Mitchell. Civil action to recover damages for alleged killing of plaintiff’s intestate.

Appeal by plaintiff from Rountree, J., at April Term, 1914, of Cum-BERLAND. Tbis is an action upon two promissory notes of $10,000 each, dated 3 and 4 February, 1913, and due respectively at sixty and ninety days after their date. They were signed by J. Sprunt Newton as maker, and apparently indorsed by Adam McArthur, Newton’s brother-in-law, and Mrs. M. C. McArthur, his mother-in-law.

<p>MotioN to docket and dismiss, under Rule 17, the plaintiff’s appeal.</p>

<p>1. Railroads — Bond Issues — Townáhip Subscriptions — Principal and Agent— County Commissioners — Conditional..Subscription—Unauthorized Acts. '</p> <p>Under a statute authorizing the submission to the voters of townships, etc., along the line of a proposed railroad, the proposition to subscribe in bonds to the undertaking, declaring the county commissioners to be the agents of the townships for the purposes of the act, which was accordingly done, but upon conditions expressed in writing between the railroad company and a trust company, advertised before the election in connection with the proposition to subscribe, that the bonds should be held by the trust company and delivered to the board of county commissioners for cancellation should the railroad not be in operation to a stated extent in three 5'ears, between certain points on another railroad or railroads: it is Held, that the condition upon which the issuance of the bonds was approved by the voters became binding between the parties thereto, and though .the county commissioners were acting as the corporate and governmental agents of the voters, they were without authority to alter, in any substantial particular, the proposition as submitted and approved, and therefore their act in further extending the time for the completion of the road beyond that specified was ineffectual.</p> <p>2. Railroads — Bond Issues — Township Subscriptions — Contracts-r— Estoppel.</p> <p>Where there is nothing in a statute authorizing counties, townships, etc., to submit to the qualified voters therein the proposition of subscribing to a proposed railroad, which prohibits the vote being taken upon certain lawful conditions, not expressed in the statute, and the railroad company «had theretofore entered into a written agreement with a trustee that the bonds should be held by it and delivered upon the stated conditions, which were of importance in voting upon the question proposed, the railroad company, having agreed to the conditions contained in the contract, is estopped to question their validity.</p> <p>3. Railroads — Counties and Towns — Bond Issues — Conditional Subscription —Contracts—Equity—Time of the Substance — Conditions Precedent— Enforcement.</p> <p>Where a statute authorizes the submission to the voters of townships along the line of a proposed railroad the question of subscribing thereto, and creates the board of county commissioners agents of the townships for the purpose, and the voters have approved the proposition upon condition, among other things, that the proposed railroad should be in operation within three years, the period stated is of the substance of the contract, and will be strictly enforced whether regarded as a condition precedent o'r subsequent, without power of the county commissioners to change or modify it; and the principles of equity relating to relief against forfeitures or penalties have no application; and it is Further held, the condition provided in this case was a condition precedent, where strict performance may be insisted on.</p> <p>4. Contracts — Conditions—Part Performance — Equity—Money Expended.</p> <p>Under the facts of this case it is held that the defendant railroad company is not entitled to consideration in equity upon the grounds that it had expended money upon a proposed railroad to which certain townships had voted to subscribe, upon certain conditions, which the defendant had failed to perform, among them, that the road should be operated from certain points within three years.</p>

<p>1. Bills and Notes — Due Course — Presumptions—Interpretation of Statutes.</p> <p>One wlio acquires a negotiable instrument, regular upon its face, for value before maturity, is prima facie taken to be a bolder in due course, nothing else appearing. Revisal, sec. 2201.</p> <p>2. Bills and Notes — Infirmities in Instrument — Holder—Burden of Proof— Notice — Bad Faith — Interpretation of Statutes.</p> <p>When it is alleged and shown in an action upon a note brought by the holder, claiming to have acquired it in due course, that the instrument had been procured by fraud between the original parties, the burden is then upon him to show that he had acquired it hona fide, without notice of any infirmity in the instrument or defect in the title of'the person who negotiated it to him (Revisal, sec. 2206), the notice required to invalidate his title being “actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.” Revisal, sec. 2205.</p> <p>3. Same — Instructions—Trials—Questions for Jury.</p> <p>Where fraud between the original parties to a negotiable instrument has been alleged and shown, and one claiming to be a holder in due course brings his action thereon, it is not error for the trial judge to refuse to instruct the jury, when the plaintiff’s evidence, uncontradicted, tends to show that he acquired it in due course without knowledge or notice of the defect, that there was no evidence of such knowledge or implicative facts, for the statute casts the burden, in such instances, on the plaintiff, and the jury, the triers of the facts, may not find them to be as testified; but the plaintiff is entitled to an instruction that the jury should answer the issue in his favor if they find the facts to be as testified, when, as in this case, no adverse inferences may be drawn from the testimony.</p> <p>4. Bills and Notes — Collateral Notes — Value—Pre-existing Debt.</p> <p>Notes taken as collateral for a valid preexisting debt are acquired for value within the meaning of the negotiable instrument law.</p>

Appeal by plaintiffs from Justice, J., at August Term, 1914, of SwaiN. Civil action to recover for services rendered E. M. Jenkins, now deceased, and for board and lodging bim for six years, four months, and nineteen days. The action was originally instituted by A. J. Patterson against F. M. Jenkins, who was her father. Afterwards, and over protest of plaintiff and also of himself, J. D. Patterson, the husband, was made party coplaintiff.

<p>Appeal by defendant from Ferguson, J., at January Term, 1914, of Perquimans. '</p>

<p>Appeal by plaintiff from F'erguson, J., at January .Term, 1914, of OUBRITUCK.</p>

Appeal by plaintiff from Ferguson, J., at March Term, 1914, of Cue-RETOOK. Civil action, tried upon these issues: 1. Did the defendant enter and trespass on the lands of the plaintiff, as alleged? Answer; “No.” 2. What damages, if any, has the plaintiff sustained thereby? The plaintiff appealed.

Appeal by plaintiff from Ferguson, J., at December Special Term, of CAMDEN. Civil action, tried up@n tbis issue: “Is plaintiff tbe owner and entitled to tbe immediate possession of one undivided one-fourtb of tbe 36-acre tract of land? Answer: No.’ ” From tbe judgment rendered, plaintiff appealed.

<p>Appeal by plaintiff from Bond, J., at March Term, 1914, of Edge-combe.</p>

<p>1. Appeal and Error — Failure to File Record — Rules of Court.</p> <p>Where tbe record in cases on appeal to the Supreme Court has not been filed by the appellant in this Court under the requirements of Rule 4 (164 N. C., 540), it will be dismissed upon motion of the appellee, filed with proper certificates, made under Rule 17, and the party in default . must abide the consequences unless unavoidable cause is shown.</p> <p>2. Appeal and Error — Several Causes — Agreement of Parties — Courts.</p> <p>Where there are several causes between the same parties, upon the same subject-matter and involving the same exceptions, the parties may agree among themselves that one or more of them may be appealed from and the result control them all; but this rests solely upon the agreement of the parties, and is not subject to the control of the courts.</p>

<p>Appeal by plaintiff from Whedbee, J., at November Term, 1913, of CRAVEN.</p> <p>Civil action to restrain the cutting of timber, tried as to title and trespass, before Ms Honor, H. W. Whedbee, judge, and a jury, at November Term, 1913, of the Superior Court of Craven County.</p> <p>The jury rendered the following verdict:</p> <p>1. Is the plaintiff the owner and entitled to the possession of the lands described in the complaint? Answer: “No.”</p> <p>2. If so, have the defendants 'trespassed upon the same? Answer: “No.”</p> <p>3. What damage is plaintiff entitled to recover of the defendants? Answer: “Nothing.”</p> <p>Judgment on the verdict for defendant, and plaintiff excepted and appealed.</p>

Appeal by defendant .from Daniels, J., at June Term, 1914, of Car-teret. Action to recover upon a life policy of insurance, • and the defense relied on is that the deceased committed suicide. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

<p>Appeal and Error — Insufficient Findings.</p> <p>In tbis case it is beld that the findings of fact of the referee are not sufficiently explicit, and the case is remanded, that additional findings be made.</p>

<p>1. Appeal and Error — Admissions.</p> <p>The parties on appeal are bound by the statement made by the trial judge appearing of record as to their admissions on the trial in the court below; and objection thereto comes too late after verdict.</p> <p>2. Usury — Principal and Agent — Amount of Money Received.</p> <p>In an action to recover a certain sum of money alleged to be due the plaintiff by reason of an usurious rate of interest charged him for a loan of money by the defendant, it appears that this money was received by the attorney of the plaintiff, out of which he paid an indebtedness of the plaintiff to another, and it does not appear how the balance of the money was used or applied. Held,, it is the amount of money received by plaintiff’s agent from the defendant that controls the question of usury, and as the defendant in this case appears to have paid over to the plaintiff’s agent such an amount as frees the transaction from the taint of usury, a recovery was properly denied.</p> <p>3. Appeal and Error — -Indefinite Exceptions.</p> <p>An exception of appellant to three distinct instructions given by the trial judge to the jury is not sufficiently specific for consideration on appeal.</p> <p>4. Issues, Sufficiency of.</p> <p>The issues submitted to the jury in this case are held sufficient under which to decide all controverted questions and to give each of the parties an opportunity to present his case in every aspect, and no error is found in rejecting other issues tendered by the appellant.</p> <p>5. Trials — Evidence—Female Witnesses — Credibility—Appeal and Error.</p> <p>A statement made by the judge to the jury in this case, that a woman as a witness is not entitled “to more credit than a man,” is held to be without error.</p>

<p>Appeal by plaintiff from Whedbee, J., at March Term, 1914, of LeNOIR.</p>

<p>Appeal by plaintiff from Allen, J., at May Term, 1914, of Waee.</p> <p>Civil action. Yerdict and judgment for defendant. Plaintiff appealed.</p>

Appeal by plaintiff from Adams, J., at August Term, 1914, of IRE-DELL. Civil action, tried upon these issues: 1. Did the plaintiff and defendant sign the written contract sued on? Answer: “Yes” (by consent). 2. Did the plaintiff, after said contract was signed by the defendant, fraudulently insert therein the items “clean Egyptian comber, clean Egyptian strippings, and weave-room waste”? .

Appeal by defendant from Garter, J., at Spring Term, 1914, of G-RÁ-HAM. Action to recover land, known as Tract No. 20. Tbe plaintiff introduced State Grant No. 61 and mesne conveyances connecting himself with tbe grant. Tbe defendant denied that tbe paper title of tbe plaintiff covered tbe land in controversy.

<p>Appeal by A. F. Young from Lyon, J., at October Term, 1913, of CumbeelaND.</p>

<p>Cities and Towns — Condemnation — Streets — Damages—Evidence—Appeal and Error.</p> <p>In condemnation XDroeeedings to take lands of plaintiff by a town for street purposes, evidence as to tbe location of the road on certain lands of plaintiff and damages thereto was excluded by tbe trial judge, on defendant’s objection that damages to tbis lot bad not been claimed in tbe exceptions, and that tbe record did not show tbis land bad been condemned. It appearing that tbe exceptions specifically demanded damages to this lot, a new trial is ordered.</p>

<p>Insufficient Parties — Appeal and Error — Practice.</p> <p>It appearing that certain heirs at law should be made parties, this case is remanded, to that end.</p>

<p>Supreme Court — Rehearing—Petition Dismissed.</p> <p>Tliis petition to rehear having been fully and carefully considered, and it appearing that the errors assigned have already been passed upon in well considered' opinions of this Court, and no new fact has been called to the attention of the Court, or new case or authority cited, of new position assumed, the petition is dismissed.</p>

Appeal by defendant from Justice, J., at December Term, 1913, of Rutherford. Civil action to recover possession of a pair of mules. Yerdict and judgment for plaintiff, and defendant excepted and appealed.

Appeal by defendants from Connor, J., at May Term, 1914, of VaNCE. Tbe defendants were prosecuted in tbe recorder’s court of Vance County on a warrant charging tbe violation of a town ordinance, and from a judgment rendered on an appeal to tbe Superior Court appealed to tbis Court.

Appeal by defendant from Bond, J;, at May Term, 1914, of WilsoN.

<p>Appeal by defendant from Cooke, J., March Term, 1914, of Wake.</p>

<p>Appeal by defendant from Daniels, J., at April Term, 1914, of Pitt.</p>

<p>Appeal by defendant from Devin, J., at March Term, 1914, of EoR-SYTEC.</p>

Appeal by defendant from Whedbee, J., at February Term, 1914, of SAMPSON. This is a motion to dismiss the appeal because of the insufficiency of the transcript. The defendant was tried in the Superior Court upon an indictment duly' found, and upon conviction was sentenced to serve eight months upon the county roads.

<p>Appeal by defendant from Coolce, J., and a jury, at June Term, 1914, of PENDER.</p> <p>The defendant and Louis Powell were jointly indicted for tbe murder of Charles Brown, and were convicted of murder in the second degree. Charles Brown was killed at the house of Oliver Williams, who is the husband of Mary E. Williams. She testified for the State as follows: “On the night of 28 February, 1914, there was a quarrel in my house between the prisoners and the deceased. Pridgen and Powell were in the kitchen and tbe deceased was in tbe adjoining room; Powell bad a knife open in bis band; Pridgen threw a soup disb and an empty bottle at tbe deceased, and tbe latter ran into tbe kitchen with a chair and struck Pridgen on tbe bead; Powell left tbe kitchen and tbe deceased followed him, and shortly thereafter, within five minutes, tbe deceased was lying on tbe floor in tbe bouse dead from a cut in tbe left side.”</p> <p>Dave Pridgen, a witness for tbe State, testified that be was at tbe bouse, and that Pridgen went into tbe kitchen; Powell followed him with a knife in bis band and said to Pridgen that be would not take it, and “Damned if I would take it, and you don’t have to.” This witness further testified as to what then took place, as follows: “At that time I looked around and saw Charley in tbe other room, coming toward tbe kitchen, and Junius Pridgen threw an empty bottle at Charley,- but missed him, and tbe bottle broke to pieces against tbe side of tbe bouse. Charley said something and picked up a chair and came into tbe kitchen and bit Junius and ran out. Louis got out first and Charley was right behind him.” Question by tbe Court: “Did I understand you to say they were running? Which was running in front and which was running after?” “Louis was ahead and Charley was right behind him. Louis bad bis knife in bis band. When defendant started out, I grabbed his coat-tail and be did not go out. I stayed in tbe kitchen a minute or two to see about Junius’ bead, and then went out to see where Charley and Louis were, and when I went into tbe south room I stumped my feet against Charley on tbe floor, but stepped across bis body. When I called Charley, Louis spoke, saying, ‘There is nothing ails him, but be is drunk/ and I reached down to' lift him up and found bis clothes bloody. And I said, ‘Somebody bring me a light,’ and Mary came with a light, and I said, ‘Somebody has killed him.’ I said, ‘Louis, you have killed Charley,’ and Louis Powell didn’t say anything. I told everybody to stay in tbe bouse and sent Louis Pridgen after Mr. George ILuggins, to tell him what tbe trouble was. I do not know anything about any fight or fuss except that part of tbe affair when Charley started towards Junius Pridgen, after Junius said, ‘Don’t a damned man touch me.’ ” And be further testified: “I went out of the kitchen after Charley and Louis because I had heard Louis say he would fix him, and I did not know what he would do, but did not want him to have any trouble.”</p> <p>Jacob Harrell, a witness for the State, testified that he held a coroner’s inquest, and that the wound was as near the heart as it could possibly be.</p> <p>George Huggins testified that he picked up a knife with a white handle under the fence, where the fence had fallen down, and it looked like it had been thrown under the fence. This was found on the Sunday following, in the afternoon.</p> <p>Mary "Williams further testified as follows: “A black-handle knife was found by the dead body of Charley Brown, that looked like the one he had in my room before he went out ahead of Charley.”</p> <p>Oliver Williams, the owner of the house, testified that oh that afternoon, while the four men were at the house, he carried a gallon of whiskey there .and all drank some of it.</p> <p>Lizzie Eoy, witness for the State, testified: “I was at the house the night Charley Brown was killed. All I saw was when Junius and Mary Ellen were in the kitchen, Louis went in the kitchen, and when he started" Mary Ellen told him to go out, and he said he was not going to see anybody hurt Junius that night. And Charley Brown said let him alone, he would fix him. And at that time Junius said, ‘Look out P and I ran in the other room, and after I got in there I heard the bottle hit the floor. I heard Mary Ellen tell some one to go and get Oliver Williams, her husband.”</p> <p>There was evidence that Louis Powell admitted having had the knife with the black handle that night, and also evidence that, when it was first picked up, “the blade was bloody to the very jaws and it was wide open.”</p> <p>At the conclusion of the evidence the defendant Junius Pridgen moved for a judgment of nonsuit. This motion was denied, and he excepted. At his request, made in due time, the judge agreed to reduce his charge to writing, and did so, except as hereinafter indicated.</p> <p>The record discloses that the court reduced its charge to writing and read it to the jury, and at its conclusion they were directed to return and make up their verdict. Counsel for the prisoner- Junius Pridgen at this time requested the court orally to charge the jury that they should not consider the fact that the prisoner had not testified, to his prejudice, and the court so instructed the jury, but not in writing, and the prisoner excepted. The prisoners were convicted, and Junius Pridgen appealed to this Court, upon exceptions reserved by him.</p>

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

<p>1. Criminal Law — Work on Road — indictment, Sufficient — Statutes.</p> <p>A warrant charging the statutory offense for failure to work the public roads is sufficient to sustain a conviction which substantially follows the statute, and a motion in arrest of judgment upon the ground of the insufficiency of the warrant will be denied when it charges that the defendant did, on or about a certain date, in a certain county, unlawfully and willfully fail to work a certain public road on which he was due road service, after he had legal warning from the overseer, and without tendering the overseer of the road the sum of one dollar. S. v. Moore, 166 N. 0., 288, cited and applied.</p> <p>2. Criminal Law — Work on Road — Statutes—Indictment—Matters of Defense.</p> <p>It is not necessary for a warrant under the statute for the unlawful failure to work a public road to charge that the defendant was an able-bodied man between the ages of 18 and 45 years, for this is a matter of defense.</p> <p>3. Criminal Law — Work on Roads — Defense—Certificates of Performance— Trial — Evidence—Questions for Jury.</p> <p>Where upon trial for unlawfully failing to work the roads a defendant pleads not guilty, and introduces a certificate that he had performed this service from August, 1913, to August, 1914, and the evidence on thé part of the State tended to prove that the defendant was notified to work in August, 1914, a conflict of evidence on the material fact arises as to whether the certificate covered the time when the defendant was notified to work; and a request that the court charge the jury that they return a verdict of not guilty upon the whole evidence is properly refused.</p> <p>4. Criminal Law — Work on Road — Overseer—Notice—Agreements—Admissions — T rials.</p> <p>The defendant being tried for unlawfully failing to work on the public road under a sufficient indictment, a witness testified, without objection, that he was overseer of that section, and it is held that it was competent for him to further testify that the defendant lived on that particular road, and that upon giving him the notice required, and telling him of the day appointed and where to go, he had agreed to do so, the agreement of defendant being in the nature of an admission that the service was due by him.</p>

Appeal by defendant from Rountree, J., at August Term, 1914, of Dubham. Criminal action. On tbe bearing it was made to appear that on 22 December, 1913, defendant was convicted in two cases in recorder’s court of Durham, on warrants charging him with unlawfully selling spirituous liquors. In one case he was sentenced to pay a fine of $100 and costs, which was complied with. In the second case the following entry was made: “The defendant comes into court and pleads not guilty.

<p>Appeau by defendant from Webb, J., at February Term, 1914, of Catawba.</p> <p>• The defendant was indicted for the .murder of one Summey Huffman. It appears that, on or about 1 November, 1913, the deceased went to the store of the accused. At the time of the homicide there was no one in the store but the prisoner, his wife, the deceased, and one A. "W. Rhine-hardt. Heavener and Huffman became involved in a quarrel, and Heavener shot Huffman three times, twice in the chest, once on the left side, and once on the right side, and the third shot struck the upper and back part of the head — about the crown of the hair. A doctor testified: “Either of the shots .in the chest might have killed him; both in the chest, in all probability, would; I am sure the last would alone — the shot in the head.”</p> <p>In order to understand the nature of the questions presented by the exceptions, it will be sufficient to set out only a part of the testimony of A. W. Rhinehardt, a witness for the State, who stated: “I live in Lin-eolnton and know where I. R. Heavener lives and where his store is. It is in Catawba County, near Mr. Lewis Rudisill’s store. I knew Sum-mey Huffman. He is dead now. He died the first day of November, 1913, I believe. He died in Mr. J. R. Heavener’s store building between 1 and 2 o’clock, to the best of my knowledge. He was shot three times— in the right and left sides, and in the top of^the head. I don’t know where he was injured in the right side — somewhere in the right lung, and on the left side; he was injured near the heart, about the lower part of the back of his coat, about here (indicating) ; and he was shot in the top of the head, just in front of the crown of the head, as well as I could say, up in the hair. I cannot tell whether that ball went through the head. I don’t know that the balls came out any part of the body. I saw the hole blown through the top of his head and his hair burnt. I never paid any attention to anything oozing from the place, because I just barely looked at it. I got to the store between 1 and 2 o’clock; had no timepiece with me. The defendant and Smnmey Huffman were both there when I got there. They were brothers-in-law; Huffman married Heavener’s sister. Mrs. Heavener was the only other person in the store when I got there. Mr. Cling Sigmon was going out when I went in; met me at the door coming out. I went in the store, and the first I saw about this whole thing was that Mbs. Heavener was back about the heating stove at the left-hand counter as you go in the store from the front, and Mr. Huffman was there cursing her. I couldn’t tell the language he was using. Mr. Heavener was standing behind the right-hand counter, or near the right-hand counter, across about even with her, and Mr. Heavener said: 'Hush up and come on up here, and we will make out that statement.’ They came on up to the front, and Mr. Huffman sat down on a chair at the front door and asked him to make him an itemized statement of what he and his family owed him, and he would pay him, and Mr. Huffman told him to* make it $6 and not more, for that was all it was, and there was some vulgar talk used by Mr. Huffman to Mrs. Heavener. When he made those remarks, Mr. Heavener says, 'Hush up, that is too bad; better mind what you are saying.’ By that time. Mr. Huffman rose up off the chair and walked to where Mr. Heavener was, at his little glass showcase he had his books lying on — -writing desk, or whatever you call it — put his right hand on the corner of this book-desk and says to him, ‘If you don’t make out that statement as I told you to — $6 even — I will beat you every time I catch you in my way.’ He didn’t have it that way, but I won’t use the vulgar language. Mr. Heavener said, ‘Well, it is $6.60,’ 60 or 65 cents, and there was an oath right there, and Huffman slapped at him and called him a liar — slapped at him with his left hand; slapped him at first on the face; and at that time Heavener threw his hand on his hip pocket and threw up his left hand and said, ‘Don’t you come on me. I will take your life out of you,’ and cursed him — said it somehow that way. Huffman said something at that time, and slapped at him again, and Heavener took the pistol and shot the first shot. When Heavener shot the first time, he and Huffman were facing each other; either one was in reaching distance of each other. I noticed the load splatter on the right side of his chest — the fire out of his pistol — and then Mr. Heavener stepped back and got around behind the counter. Huffman kept after him, and slapped at him as he went, both walking slowly, Heavener backwards and Huffman forwards, and I heard the pistol snap two or three times before he fired the second time. When he fired the second time he was hit in the left side of the chest, and he sank down — began to sink, just going down, and caught the counter with his left hand. As he sank down, it appeared he was wanting to hold himself up, and he got weaker and weaker, and kept sinking, and as he sank down with his head about level with the top edge of the counter, Heavener shot him in the top of the head. When Huffman was shot the last time, he was behind the counter. When Huffman began to sink, Heavener was standing right in front of the heating stove and looking at hiin as he went down. Just immediately before he fired the shot in the top of the head, he moved forward towards him — either leant or made a step. I couldn’t tell you the exact height of that counter; it was just an ordinary counter — higher than that table (indicating). When it first began, Heavener was standing at the opening between the counters, and Huffman was out in the aisle. Huffman slapped at him with his left hand, and had nothing in his hand, and had nothing in his right hand that I saw. When the first shot was fired, Summey was standing with his hand on this little glass showcase that set off from the end of the counter, and Heavener was standing at the end of the counter; Huffman was in about reaching distance. When Huffman struck with his left hand, Heavener pulled out his pistol and fired. He reached back in his'hip pocket, and when he came out with his hand there was a pistol in it. Just before he reached to the pocket from which he took the pistol, he said, H will take your life.’ When that first shot was fired, Huffman was following Heavener. I couldn’t tell you how many times the pistol snapped. I heard it. ‘ When Huffman slapped at Heavener, he didn’t have anything in his hand, that I know of. When the second shot was fired, Huffman began to sink this way (indicating), and he was low enough to «reach up with his hands to the top of the counter to hold himself; put his left hand on top of the counter. At that time Heavener was about the same distance from him he had been in the time of backing; Heavener leaned over or stepped over, made a bow towards him. When he fired the ball in the top of the head, Huffman slipped right straight back, and Heavener said (making sound indicated by witness), ‘Too bad; somebody bring some water here and outen the fire.’ Mrs. Heavener said, ‘Is somebody afire?’ He said, ‘His clothes are burning.’ She came from the back end of the store with a' bucket of water and a dipper in it, and I took out a dipper full and went behind the counter and stood between the dead man’s legs and poured water where the second shot was fired and ‘outened’ the fire; the fire was burning the turned-back part of his coat, or near about. I don’t think Mr. Huffman breathed after I got behind there. I stood there watching him a minute or two, and he never moved. The first conversation defendant and I had together after this about anything was that I told Mr.'Heavener that I expected I would have to be a witness on this, and to save my life I couldn’t swear to the number of shots that were fired, if any missed him. I said, ‘Let’s look at the pistol and see how many cartridges were shot out of it,’ and he said, ‘All right,’ and he got the pistol and broke it down and pulled the shells out of it, and there were three empty ones and two loaded, and he put them back, and I went out of the store; and he called Lester Walsh to go and tell Mr. Perry Jarrett to come down there, and then we walked out, and Mr. Heavener told me to come down to the corner, to the platform of the warehouse, that he wanted to talk to me; and I went with him, and he said, ‘I want , you to' do all you can for me in this case; you are my main witness.’ I said, ‘I will do all I can- — everything I can, as far as the truth goes.’ That was the last of it. I went home. I can’t tell you where Mrs. Heavener was during the shooting. She was somewhere between the heating stove and the back end of the store. I noticed her, when the first shot was fired, walking back the other way from the heating stove. Don’t know where she went to. I was paying attention to the man doing the shooting, and wanted to keep myself out of danger. Mr. Huffman was drunk when he came in there. He appeared to me, when I saw him coming down the road just before, to be pretty drunk, was staggering very much. The stove was about halfway back in the building from the front door to the back 'door, and the shooting took place near the front door; commenced there, and the wind-up of it was nearly back even with' the stove. Before Heavener shot, he used some kind of little curse word — didn’t speak it very loud. He said that, and ‘I will take your life’ followed right along.”</p> <p>There was evidence on the part of the prisoner tending to show that he shot Huffman in self-defense and under great provocation, as the latter, it seems, had greatly insulted his wife, using profane and vulgar language in doing so, and when told to desist he became very angry with the prisoner and pursued and struck him, at the same time taking something out of his pocket, which prisoner testified put him in fear of his life and caused him to shoot to defend himself against the infliction of great bodily harm upon him by the deceased. This evidence will be noticed in the opinion.</p> <p>The prisoner was convicted of manslaughter, and from the sentence of the court to confinement in the State’s Prison for eighteen months he appealed.</p>

<p>Appeal by defendant from Justice, J., at August Term, 1914, of CheeoKee.</p>

Appeal by defendant from Harding, J., at August Term, 1914, of Bukke. The defendant was indicted in the Superior Court for selling intoxicating liquor to Pink Thorne. The defense is that he did not sell the liquor to Thorne, but that the transaction in which liquor was delivered to Thorne at his home was conducted with him by his wife, who is now dead. The State introduced evidence to the effect that Pink Thorne had received liquor from the defendant and paid him $1 for it.

Appeal by defendant from Bhaw, J., at August Term, 1914, of Meck-LENBURG. The prisoners were indicted below for a secret assault on A. 33. Moore and Neal Elliott, were convicted, sentenced to confinement in tlie State Prison for terms ranging from four to fifteen years, and have appealed from tbe judgment to tbis Court. The indictment charged that the four prisoners jointly committed the assault with pistols upon Moore and Elliott, shooting both of them.

Appeal by defendant from Shaw, J., at July Term, 1914, of Meck-LENBURG. The defendant was indicted for the murder of Dillard Hooker. When the case was called for trial the solicitor did not put the defendant on trial for murder in the first degree, but asked for a conviction of murder in the second degree or manslaughter.

Appeal by State from Harding; J., at September Term, 1914, of LINCOLN. The defendants were indicted in the following bill: The grand jurors for the State upon their oaths do present, that R. T. Dalton, R. 0.

Appeal by the State from Justice, J., at August Term, 1914, of Buree. The defendant was tried in the Superior Court upon an appeal from the police court upon a warrant charging it with delivering intoxicating liquors to one J. W. Garrison in Burke County in violation of chapters 24 and 806 of the Public Laws of 1907,- which prohibits the importation of intoxicating liquors into that county for certain purposes. The ease was heard on a special verdict.

<p>1. Criminal Law — Conspiracy—Necessaries'of Food — Common Law — Reasonable Profits.</p> <p>An agreement among dealers in a necessary article of food, to raise its price, is an indictable offense at tbe common law, and tbe evidence in tbis case being that dealers controlling 60 per cent of tbe supply of milk in a town having by a written agreement raised its price, testimony is irrelevant that a dealer not a party to tbe agreement bad also raised tbe price of bis milk to bis customers, or whether tbe agreement was reason-ble or necessary for tbe article to .yield a profit in its sale.</p> <p>2. Same — Evidence.</p> <p>Upon trial for conspiracy among dealers to sell milk in a town at an advanced price, it is proper to show by competent testimony of a witness that tbe price was consequently advanced.</p> <p>3. Criminal Law — Indictment—Proof—Immaterial Variance.</p> <p>A variance between tbe charge of an indictment that tbe defendants conspired together to raise tbe price of milk to 13 cents per quart, and tbe proof that it was raised to 12% cents per quart, is immaterial, tbe fact that tbe price was raised in consequence of tbe agreement being controlling.</p> <p>4. Criminal Law! — Indictment, Form of — Interpretation of Statutes.</p> <p>An indictment is sufficient in form under Revisal, 3264, which charges tbe offense “in a plain, intelligible, and sufficient manner”; and where tbe indictment is for an offense at common law it will not be beld fatally defective that the indictment charged the offense as being “against the form of the statute and also against the peace and dignity of the State.”</p> <p>5. Criminal Law — Conspiracy to Raise Price — Intent—Evidence.</p> <p>Upon the trial for a conspiracy to raise the price of milk in a community, the only question presented is whether the defendants had so agreed, and if, in consequence, they raised the price, the intent to raise the price being the criminal intent which makes the offense.</p> <p>6. Criminal Law — Admissions—Instructions—Directing Verdict.</p> <p>When upon the trial for conspiracy among dealers to raise the price of ■ milk in a certain community the defendants admit entering into the agreement and the consequent raising of the price, it is proper, and not objectionable as directing a verdict, for the judge to relate the admission to the jury and instruct them that thereunder the .defendants would be guilty.</p> <p>7. Criminal Law — Conspiracy to Raise Price — Common Law — Statutory Offense — Interpretation of Statutes — Appeal and Error — Harmless Error.</p> <p>A conspiracy among dealers to raise the price of. a necessary article of food being indictable under the common law, it is not reversible error for the trial judge to exclusively so regard it in the conduct of the trial and erroneously instruct the jury that it was not a statutory offense, though in fact it was so made by chapter 41, Laws 1913, secs. 1, 2, and 3.</p>

Appeal by defendant from Long, J., and a jury, at April Term, 1914, of Polk. Indictment for abandonment under section 3355, Eevisal. Verdict,'“Guilty.” Judgment, and defendant excepted and appealed.

<p>Appeal by defendant from Connor, J., at August Term, 1914, of Chatham:.</p>

<p>1. Vendor and Purchaser — Contracts—Certain Quantity “or More.”</p> <p>A contract to purchase a certain quantity of guano, “or more,” by a fixed date, to be shipped out by the seller as ordered, is not too indefinite in its terms to be enforcible by the seller as to the quantity definitely agreed upon.</p> <p>2. Contracts — Evidence—Other Contracts.</p> <p>Where in a suit upon contract for the sale of goods the purchaser de: nies the terms thereof, it is not competent for him to show that the contract was different from the one alleged, by evidence that the seller had made a different contract for the sale of his wares with other persons. Ins. Oo. v. Knight, 160 N. 0., 692, cited and distinguished.</p> <p>3. Trials — Evidence—Nonsuit.</p> <p>Upon a motion to nonsuit, the defendant’s evidence favorable to him cannot be considered, but only that which is favorable to the plaintiff.</p> <p>4. Appeal and Error — Briefs—Exceptions Abandoned — Rules of Court.</p> <p>An exception mentioned only incidentally and without discussion in the brief, will be taken as abandoned, under Rule 34 of the Supreme Court.</p> <p>5. Trials — Instructions—Requests—Appeal and Error — Presumptions.</p> <p>Exceptions to the refusal of the trial judge to give prayers for instruction to the jury, asked, though appearing to be proper upon the evidence in the case, will not be held as error on appeal when the charge of the trial judge does not appear in the record and there are no exceptions thereto; for it will be presumed that the charge as given was a proper and correct one, and substantially covered the request for instruction, the exact language being immaterial.</p>

Appeal by plaintiff from Carter, J., at September Term, 1914, of PASQUOTANK. Civil action to try title to land. The plaintiff relies upon a chain of paper title, originating with four grants to Jonathan Herring, with which the plaintiff seeks to connect himself by mesne conveyances.

<p>1. Master and Servant — Children—Negligence—Trials—Nonsuit.</p> <p>In an action to recover for the death of a child 5 years of age, caused by drowning in a reservoir of the defendant cotton manufacturing plant, there was evidence tending to show that the reservoir contained 7 or 8 feet of water, coming within a few inches of the top, and that the intestate fell in while endeavoring to get a drink of water, and met his death; that the reservoir was situated near the mill and the tenement-houses of the defendant’s employees, in one of which' lived the father of the intestate, and where their children usually played, upon a grassy place shaded by trees; that a fence 3% or 4 feet high had been placed around the reservoir, which had rotted in places; ’causing openings therein large enough to admit of the passage of the children, through one of which the intestate had gone, upon this occasion, to get water, and that to the top of the wall on which the fence was situated was a gradual upward slope from the children’s playground. Held, sufficient to be submitted to the jury upon the issue of defendant’s actionable negligence.</p> <p>2. Master and Servant — Children—Negligence—Trespasser.</p> <p>A 5-year-old child of an employee of a cotton mill, while on the playground used by the children of employees, in attempting to get a cup of water from a reservoir used in connection witli the plant, cannot be considered a trespasser, in an action brought by his administrator to recover damages against the defendant for its negligence in not properly safeguarding the reservoir, resulting in the drowning of the intestate.</p> <p>3. Contributory Negligence — Children—Trials—Questions of Law.</p> <p>Under the circumstances of this case it is held that a 5-year-old boy is too young to be guilty of contributory negligence.</p> <p>4. Judgments — Nonsuit—Res Judicata.</p> <p>A' judgment of nonsuit is not res judicata in a subsequent action brought on the same subject-matter.</p>

Appeal by defendant from Carter, J., at November Term, 1914, of Pasquotank. Civil action. There was a verdict and judgment for the defendant. The plaintiff appealed.

<p>Appeal by Mary Patrick, caveator, from Garter, J., at December Term, 1914, of Tykrell.</p>

Appeal by plaintiff from Garter, J., at Fall Term, 1914, of Chowan. Civil action, heard upon complaint and demurrer. The court sustained the demurrer, and the plaintiff appealed.

<p>Attachment — Damages to Property — Sheriff—Principal and Agent — Liability of Attaching — Creditor.</p> <p>Where one wrongfully and without probable cause sues out an attachment on crops of another, the defendant in that action may, by an independent action, recover from the plaintiff therein, as a matter of law, such damages to the crops attached as may have been caused by the sheriff while it was in his possession, in executing the writ, the sheriff being regarded as his agent to execute the mandate issued at his instance.</p>

Appeal by plaintiffs from Bond, J., at. September Term, 1914, of PASQUOTANK. Proceeding for tbe sale of certain timber interests and of certain lands for partition. Tbe timber on tbe lands was first sold witb tbe right to cut tbe same in five years, and witb tbe privilege of extending tbe time of cutting three years upon tbe payment annually of 6 per cent ón tbe purchase price.

<p>1. Waters — Lateral Ditches — Insufficient Culvert — Diversion of Water.</p> <p>Where the water from the lateral ditch along the right of way of a defendant railroad overflows the lands of the plaintiff because of a culvert under the roadbed insufficient to carry off the flow from the ditch, the issue presented is one of fact as to the diversion of the water from its natural flow, and if the damages are thus caused, the defendant is answerable.</p> <p>2. Same — Permanent Damages — Continuous Damages — Limitations of Actions.</p> <p>The five-year statute-of limitations [Rev., S94 (2)] does not apply to damages for the diversion of water from a lateral ditch along the roadbed of a railroad company, caused by an insufficient culvert to carry it under the roadbed, until the culvert became insufficient.</p>

<p>Appeal by defendants from Bond,, J., at August Term, 1914, of WASHINGTON.</p> <p>Petition to sell land for assets, instituted before tbe clerk Superior Court and transferred to civil-issue docket on denial of any and all indebtedness.</p> <p>On tbe bearing it was properly made to appear that Mrs. Deborah Stocks, formerly the wife of John Stocks, died intestate, December, 1913, leaving a tract of land and very little or no personal property, and that petitioner, G. "W. Bowen, duly qualified as administrator and instituted present proceedings to sell her land for assets to pay debts; that claims had been presented amounting to more than $300, consisting of funeral and burial expenses, tombstone, doctor’s bills and, nursing during her last illness, the latter part of 1913, from September to 31 December.</p> <p>“Third. That all of the said accounts were made since an act was passed giving married women the right to contract and were made between September, 1913, and 31 December, 1913, the period covered by the last illness of the said Mrs. Stocks.</p> <p>“Fourth. That at the time of the death of Mrs. Stocks and during the time that said accounts were contracted the said Mrs. Stocks and her husband were living together as man and wife, and the said Mr.' Stocks was at home during said period.</p> <p>“Fifth. John Stocks, husband of Deborah Stocks, died shortly after the death of Deborah Stocks, leaving a last will and testament by which he devised and bequeathed all of his property to Mrs. Kitty Brown (one of the claimants) for life, and after her death to the children of Mrs. Kitty Brown, and appointed Mrs. Kitty Brown executrix, and that the said Mrs. Kitty Brown has duly qualified as executrix of said will.</p> <p>“Sixth. That Mrs. Deborah Stocks did not leave sufficient personal property to pay the claims above referred to, but did leave sufficient real estate, if her estate is liable therefor.</p> <p>“Seventh. That John Stocks, her husband, left sufficient property to j>ay all of the above claims, if they are properly chargeable against his estate, in addition to all other debts of his estate. '•</p> <p>“Eighth. That all of the items in all of the above claims were necessary to the comfort, the proper care and proper apparel of the deceased lady, and that the amount due the two Mrs. Browns, if anything, for nursing, were also necessary for the comfort and proper care of the said Mrs. Stocks during her illness.</p> <p>“Ninth. That Mrs. Deborah Stocks left no children, but did leave sisters, nephews, and nieces, all of whom have been properly made parties defendant to this proceeding.</p> <p>“Tenth. That there was no evidence of any express contract on the part of Mrs. Stocks for any of the supplies, etc., or medical attention, etc., nursing, etc., represented by the claims filed.”</p> <p>On these facts, the court below being of opinion that the real estate of the deceased wife was liable, there was verdict establishing indebtedness and judgment directing that the clerk proceed accordingly in the proper administration of the estate.</p> <p>Defendants, having duly excepted, appealed.</p>

<p>Appeal by both plaintiff and defendant from Bond, J., at October Term, 1914, of Beaueobt.</p>

<p>Appeal by plaintiff from Bond,, J., at October Term, 1914, of Beau-poet.</p> <p>Tbis action was brought to recover the value of a cow which plaintiff alleges was killed on the defendant’s track by its negligence. The plaintiff testified for himself, that he found the cow on the right of way of the railroad company about two days after the injury. He then called as a witness the engineer of the defendant railroad company, who testified that on the night of 27 August, 1910, he was running an engine of the defendant railroad company; that it was very dark and raining; that the railroad-bed was in good condition and that the engine was properly equipped with headlight and brakes, and was in good condition generally; that be was keeping a very careful lookout and saw some cows on tbe track about a hundred yards ahead of him; that he was running at the time about 25 miles per hour; that as soon as he saw the cows he sounded the whistle and applied the brakes, and in fact did everything he could to keep from striking them, but that he did strike one cow and knocked her off the track; that it was impossible to stop the train sooner because of the slippery condition of the rails, due to the rain. The cow was killed 21 August, 1910, and this action was commenced 19 April, 1912. Plaintiff proposed to account for the delay in bringing his action by proving that some one who was connected with the defendant told him that a suit would not be necessary, but there was no proof, nor offer to prove, who made the statement, or, if it was made, that the person had any authority from the defendant to make it. The evidence was excluded, and the court, on motion, nonsuited the plaintiff, and he appealed.</p>

Appeal by defendant from Cline, J., August Term, 1914, of BtjN-COMBE. Tbis was an action to recover damages on account of tbe unlawful detention of tbe plaintiff by tbe defendants in tbe defendant hospital operated by tbe defendant Carroll, and for assaults committed on ber and neglect of ber while in tbe hospital, which acts are alleged to have been wrongful and committed willfully, wantonly, and maliciously by tbe defendants.

Appeal by plaintiff from Bond, J., at August Term, 1914, of 'WASHINGTON. Civil action, tried upon these issues: 1. Did tbe Plymouth Brick and Tile Manufacturing Company own the property described in complaint when the note and paper for $325 was given to A. L. Owens? Answer: “No.” 2. Has the $325 note given to A. L. Owens been paid or discharged? Answer:_ 3.

<p>Appeal by plaintiff from Shaw, J., at September Term, 1914, of MECKLENBURG.</p>

Appeal by plaintiff from Carter, J., at September Term, 1914, of PASQUOTANK. Action against a register of deeds to recover the penalty for issuing a license for the marriage of a girl under 18 years of age without the written consent required by the statute. The plaintiff is the stepfather of Julia Irene Jones, formerly Julia Irene Barber, the plaintiff having married her mother in 1903.

<p>1. Waters — Upper Proprietor — Diverting Flow — Damages.</p> <p>An upper proprietor can increase and accelerate the flow of water from liis lands without liability to the lower proprietor for damages; but when ■ the flow of water is diverted to the detriment of the lower proprietor, he may recover for the damages consequently caused to his lands.</p> <p>2. Same — Swamp Lands — Drainage—Insufficient Culvert.</p> <p>Where the track of a railroad company passes through a large area of low, boggy, and undrained land, and to drain the same the company cuts ditches through the rim of the basin, to carry off the water to an existing ditch, which empties the water into a ditch along the county road, carrying it further along to where the last ditch crosses the road through a culvert; and thereafter enlarges the various ditches so as to carry off more of the water, but fails to enlarge the culvert whereby the increase of water finds an insufficient outlet and ponds water back upon the plaintiff’s land, to his damage: Held, the drainage of the lands by the defendant, in this manner, and diverting its flow with an insufficient culvert, caused an injury to the plaintiff’s land for which the defendant is responsible in damages.</p> <p>3. Same — Limitation of Action.</p> <p>Where an upper proprietor has drained, by the use of ditches ultimately emptying through a culvert, under a railroad embankment, an area of his low, swampy lands, and thereafter enlarges the ditches so as to carry such additional quantity of waste as to render the culvert inadequate and pond water upon the lands of the lower proprietor, the latter’s cause of action did not accrue until the ditches were so enlarged, and the statute of limitations did not commence to run till then.</p> <p>4. Same — Continuing Damages — Presumption of Grant — Permanent Damages.</p> <p>Where the upper proprietor has caused damages to the lands of the lower proprietor by diverting the surface waters from their natural flow, the latter, in his action, is entitled to recover such damages as accrued within three years prior to the commencement of the action, unless there is a presumption of a grant from twenty years acquiescence, or permanent damages in an action brought within five years after the act complained of.</p> <p>5. Waters — Upper Proprietor — Diverting Water — Rights of Lower Proprietor —Diminishing Damages.</p> <p>The lower proprietor, upon whose lands the upper proprietor has diverted the flow of water to his damage, is not required to avoid the damage by digging drainage ditches to carry off the water.</p>

Appeal by .defendants from Bond,, J., at October Term, 1914, of BEAUFORT. This is an action in tbe nature of ejectment to recover tbe land described in tbe complaint, upon tbe theory that tbe ancestor of defendants, Jobn G-.

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

Appeal by defendant from Garter, J., at September Term, 1914, of CURRITUOK. Tbis action was brought by tbe plaintiff to recover damages for a breach of a contract to sell and deliver to him three hundred barrels in which to pack and ship bis crop of potatoes. He alleges tbat by reason of tbe breach be sustained a loss of $500 by a decline in the price of potatoes. Tbe jury assessed bis damages at $100, and from a judgment upon tbe verdict tbe defendant appealed.

Appeal by plaintiff from Garter, J., at July Term, 1914, of Camden. Action of ejectment.

Appeal by plaintiff from Garter, J., at chambers, 10 December, 1914, from Daee. Civil action, brought by the plaintiffs to restrain the issuing of certain bonds of the county of Dare by the defendants, the board of education and the board of commissioners of said county, and to restrain the levy and collection of a special tax to pay the interest on same.

<p>Appeal by plaintiff from Justice, J., at Spring Term, 3915, of Chowan,</p>

Appeal by defendant from Carter, J., at Fall Term, 1914, of Hyde.

<p>Appeal by defendant from Bond, J., at October Term, 1914, of Beau-EORT.</p>

<p>1. Partition — Owelty—Charge Upon Land — Life Tenant — Limitation of Actions.</p> <p>In a division of land by a voluntary deed of partition among tenants in common, subject to tbe life estate of another, charging one of the parts owelty in a certain sum, the ten-year statute bars the right of recovery for the charge of owelty upon the land and begins to run during the life estate to which the land is subjected.</p> <p>2. Partition — Owelty—Charge Upon Lands — Personal Judgment — Personal Representatives — Parties.</p> <p>Where tenants in common have made a voluntary partition of lands by a division deed, charging one of the shares with owelty, and the owner thereof has since died, devising his lot to his wife, in an action brought to recover judgment for the amount of the owelty and declare the judgment a lien on the land, no personal judgment can be rendered against the defendant or the personal representative of the deceased, and the latter is not a necessary party.</p>

Appeal by defendant from Ferguson, J., at September Term, 1914, of MARTIN. Action to recover value of a bale of cotton, which was commenced before a justice of the peace and heard on appeal in the Superior Court. The summons was issued against and served on J. L. Davenport, agent for the Daniels Roanoke River Line Steamboat Company. Judgment was rendered in favor of the plaintiff before the justice of the peace, and the defendant appealed.

Appeal by plaintiffs from Bond,, J., at January Term, 1915, of WayNe. Civil action. The facts of the case are these: W. H. Davis conveyed certain land to D. G. Davis, who alleged that the deed did not include all of the land contracted to be sold and conveyed to him. Tie executed a mortgage to W. H. Davis to secure the purchase money, or a part thereof, consisting of three notes, amounting, in all, to $500.

Appeal by plaintiff from Garter, J., at November Term, 1914, of PASQUOTANK.

Appeal by plaintiff from Ferguson, J., at November Term, 1914, .of Edgecombe. Civil action, tried upon these issues: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint ? Answer: “No.” 2. Was the plaintiff guilty of contributory negligence, which brought about her own injury ? Answer:_ 3.

Appeal by plaintiff from Bond, J., at October Term, 1914, of Hekt-EORD. Action begun before a justice of tbe peace and beard on appeal, its purpose being to recover a mule from tbe defendant. Tbe plaintiff testified that on 22 February, 1913, be sold and delivered to tbe defendant a mule for $20, and took from defendant a paper-writing in words and figures as follows: I, Wright Mitchell, promise to pay W. A'.

Appeal by defendants from Ferguson, J., at January Term, 1915, of Warren. Action to recover tbe possession of land, brought by W. A. J. Pinnell, Robert L. Pinnell,' and Lena Andrews, as children and heirs at law of Jackson Pinnell, against the defendants, who are the children of Lucy W. Pinnell, the widow of Jackson Pinnell, by her subsequent marriage with John H. Burroughs, who was her second husband.

■ Appeal by plaintiffs from Whedbee, J., at September Term, 1914, of Wake.' Civil action to recover the inheritance tax imposed by law upon the estate of Florence P. Tucker, who died, leaving a last will and testament, in the city of Raleigh on 11 December, 1909. Her estate consisted of both real and personal property. The most of her estate was bequeathed to her executors in trust for her children, the legatees under the will.

<p>1. Gifts — Delivery—Trials—Evidence—Questions for Jury.</p> <p>Where there is evidence tending to show that the grandmother indorsed certain certificates of corporate stock to her granddaughter and requested the latter’s father to hold them for his daughter until after her death, which he refused to do, deeming it better for the donor to so hold the stock; that she put the certificates in. her Bible and afterwards stated that she had given them to her granddaughter, the evidence raises more than a conjecture of the delivery necessary to the validity of the gift; and the certificates not having been found after her death in the place the alleged donor had put them, the question of a valid gift is one for the determination of the jury in an action against the administrator and the corporation to compel the issuance of a certificate to the alleged donee to supply the place of the lost one.</p> <p>2. Statutes — Deceased Persons — Transactions and Communications.</p> <p>Transactions and communications between a deceased person and a third party not interested in the event of the action are not objectionable, as evidence, under our statute, Revisal, sec. 1631.</p> <p>3. Appeal and Error — Evidence Immaterial.</p> <p>The admission of evidence which, under the charge of the court, could not have been prejudicial to the appellant is not reversible error on appeal.</p> <p>4. Trials — Issues Sufficient — Appeal and Error.</p> <p>Where the issues submitted at the trial are sufficient to present all the matters involved in the controversy, the rejection of those tendered by the appellant will not be held as error.</p> <p>5. Trials — Instructions—Objections and Exceptions — Specific Requests.</p> <p>Where the charge states correctly, though in general terms, the law applicable to the issues involved in the controversy, exceptions that they were not more specific will not be considered on appeal, in the absence of the refusal of special requests for instructions, that they be made so.</p>

Appeal by plaintiff from Bond, J., at September Term, 1914, of Bertie. Civil action, tried upon these issues: 1. Did J. L. Pritchard within time fixed by the paper-writing signed by J. W. Dailey, copied in complaint, tender the certificate of stock and demand return of his $1,000 paid for the same? Answer: “No.” 2.

Appeal by plaintiffs from Ferguson, J., at November Term, 1914, of WlLSON. Proceeding for partition of a tract of land wbicb originally belonged to Alfred Thompson, who was twice married. He bad children by the first marriage, and no children by the second marriage.

<p>Appeal by plaintiff from Ferguson, J., at chambers in Wilson, 9 October, 1914; from Edgecombe.</p> <p>Civil action pending in the Superior Court of Edgecombe County, heard by Ferguson, judge, on a motion for an injunction to the final hearing. The motion was denied, and the plaintiff appealed.</p>

Appeal by plaintiff from Peebles, J., at March Term, 1914, of Lee. Civil action, beard on appeal from justice’s court. Plaintiff offered evidence tending to show that during 1911, beginning in May, be sold and delivered to defendants an amount of lumber at a stipulated price, and tbe balance due tbereon was $107.01.

Appeal by defendant from Whedbee, at July Term, 1914, of Oam-DEN. Action to recover damages for a trespass on the plaintiff’s land, known as the lots numbered 2 and 3 in the New Lebanon Division, which was made in the year 1819.

<p>Appeal by petitioner from Peebles, J., beard 19 August, 1914, from BERTIE.</p> <p>Petition to appraise and correct the assessment of inheritance tax on devise by the will of deceased to petitioner, John R. Lawrence, heard on appeal from clerk Superior Court.</p> <p>The petitioner, claiming to stand in the relation of child of the testator, subject to the smaller tax imposed by the law, and that he is entitled to the exemption allowed in such cases, filed his petition before the clerk and alleged and prayed:</p> <p>“First. That John H. White, deceased, died on or about 12 July, 1913, leaving a last will and testament which has been admitted to probate and is recorded in Bertie County, and in which he appointed your petitioner as his executor under said will and testament; and your petitioner duly qualified as such executor on 20 July, 1913, and is now the executor of said estate.</p> <p>“Second. That said John R. Lawrence is the principal legatee and devisee in said will and testament, the same being referred to and made a part hereof for all purposes; and on 13 June, 1914, the said clerk of the Superior Court of Bertie County duly appointed T. C. Bond as the appraiser to appraise the said estate for the purpose of assessing the inheritance tax under the provisions of chapter 201, section 15, of the Public Laws of 1913 of North Carolina, and the said Bond duly qualified, assessed said estate, and has filed his report in this court bearing date of 26 June, 1914; and the same is referred to and made a part hereof for full description of same.</p> <p>“Third. That the said John R. Lawrence is the only devisee and legatee in said will and testament and in the report of said assessor whose share is liable for the inheritance tax as provided for in chapter 201 of Public Laws of North Carolina, 1913.</p> <p>“Fourth. That the said John R. Lawrence was the nephew and foster-child of the said John H. White, deceased, and was the son of the sister of said White and her husband, Thomas Lawrence. That Thomas Lawrence died when your petitioner was about 6 years of age, leaving surviving him his wife and three small children, John R. Lawrence, Bettie Lawrence, and Ida Lawrence, and without leaving any estate and property. That John H. White, who lived and died a bachelor, took and adopted his sister and her child, John R. Lawrence, into his household as members of his family, and the two small girls, Ida and Bettie Lawrence, went to live with their aunt, Bettie Wilson. That your petitioner’s mother, the sister of said White, cared for his house and did the other duties pertaining to the same until the time of her death, which occurred when your petitioner was 9 years, and your petitioner remained there, also cared for by his uncle and mother.</p> <p>“That before the death of his mother, the said White promised her that he would adopt the said John R. Lawrence, raise him, and leave him all of his property at the time of his death, and after the death of his mother your petitioner remained with the said White until he reached the age of 21 years, and was treated as. a son by the said White and in turn treated the said White as he would have his father. That the said John R. Lawrence worked in the field of said White, never receiving any compensation therefor, other than his board and clothes and a little spending money, just as any other man in similar circumstances in said locality would have treated a son, and he nursed and cared for said White when he was sick and was in turn nursed and cared for by the said White. That the said White announced to the world that he had adopted his nephew as his child and heir, and he was so regarded by the neighbors in that community, though there was never any actual ‘legal adoption.’</p> <p>“That the said White repeatedly told him that he was going to leave him his property when he died, and. he raised and brought up your petitioner to believe and feel that this would be the case.</p> <p>“That during the said period of time the household of said John H. White, deceased, consisted of said White, your petitioner, and a hired man, James Q. White, and the other servants around the house and farm.</p> <p>“That the said White was very affectionate to the said Lawrence, and said Lawrence was in turn very affectionate with his uncle, because he felt that he stood in the relation of parent to him, and was, practically speaking, the only father he ever knew in his life, as his own father died before he could remember much about him.</p> <p>“Fourth. That your petitioner reached the age of 21 years old, and was advised by said White that he should go away and learn something of the world, and that he was willing to allow him to go in the northern part of .the country and work, provided that he would return home and care for the said White whenever he needed him. That your petitioner went up into the Northern States, and followed the trade of boiler-maker and continued this work for several years. That he and the said John H. White always kept in touch with each other, and your petitioner generally came home once every year to see his uncle and foster-parent, and was in turn visited by the said White at various intervals. The aforesaid relation of father and child was always continuing to exist during the said period, and correspondence by the use of the mail was kept up between them during this period.</p> <p>“That when your petitioner would return borne to visit bis uncle, and wben said uncle and foster-parent would visit bim, they would frequently advise together about tbe property and condition of said White and Lawrence, the said Lawrence aiding said White by suggestions,' and said White aiding said Lawrence in this and other ways; and the said White always treated said Lawrence as his son and heir to his property.</p> <p>“That about two years before the death of said White he advised your petitioner that he was getting too feeble and old to care for himself, and desired that he come home and take charge of him and his property until the time of his death, as he was the only child he ever had and the one he felt nearest to in the world.</p> <p>“That your petitioner had married in the meantime and had his wife and two small children, and was engaged in the millinery business in Gloucester, New Jersey. His said business was prosperous and in good condition, but in obedience to the summons of his said foster-parent and uncle, he immediately sold the same out at a great sacrifice, and returned home to care for his said uncle.</p> <p>“That from then on to the death of said White he and his wife remained at home of said White and cared for, nursed the said White, who was very feeble and old, in the same manner as he would have cared for his own parents, and cared for said farm and other property of said White, managed the same and had charge of said property in the same manner as said White would have had charge of same if he had been able. That during this period the said White frequently advised him that he regarded him as the only child he ever had in the world, and that upon his death he would receive the bulk of his property and estate. And the aforesaid relation of father and child extended up to the death of said White, which occurred in 1913.</p> <p>“Fifth. That your petitioner is advised and believes, and so avers, that because of facts above stated the said relation of father and child between White and himself began when your petitioner was about 6 years of age and continued until the death of said White in 1913, and they stood in this relation within the meaning of the inheritance laws of the State of North Carolina, and that in assessing and appraising said estate of said White, and the property devised by said White to your petitioner, that the basis of the tax should be at the rate of $1 per $100 instead of $3 per $100, as provided for for persons in the relation of nephew and uncle.”</p> <p>Upon the hearing, the clerk found the facts as stated in the petition to be true, but held, as a conclusion of law thereon that defendant did not stand in this relation of child within the meaning of the inheritance tax law. On appeal, the judge of the district approved and affirmed the findings and judgment of the clerk, and petitioner appealed to this Court.</p>

Appeal by defendant from Garter, J., at January Term, 1915, of Chatham. Civil action tried upon these issues: 1. Are the plaintiffs the legal dependents of W. R. Harris, deceased? Answer: “Yes.” ■ 2. Did the defendant issue to W. R. Harris the benefit certificate for $500, as alleged in the complaint? Answer: “Yes.” 3. Was the deceased, W. R. Harris, in sound bodily health at the time he was enrolled in the. Funeral Benefit Department of defendant ? Answer: “Yes.” 4.

<p>1. Master and Servant — Duty of Master — Safe Place to Work — Negligence..</p> <p>Where the master fails in his duty to' furnish his servant a safe place to work, which is the proximate cause of a personal injury received by him in the course of his employment, the master is answerable in damages.</p> <p>2. Same — Railroads — Brakeman — Obstructions Near Track — Contributory Negligence — T rials — Evidence—Nonsuit.</p> <p>Where there is evidence that a railroad company has failed to provide a ladder at the end of a box car on its freight train, ordinarily used by its employees to reach the top of its box cars, and'its brakeman, in the course of his employment, is prevented from climbing to the top of the car by the overhanging eaves of a car shed, from the position he was in after boarding the train; and that after passing from the shed at a speed of 10 or 12 miles an hour, and while climbing from his position towards the top of the car in the manner left open to him, the act of climbing requiring him to look upward, he was struck from the car by a shanty 7 feet high, 200 feet from the car shed and so close to the track as to render his passage between the ear and the shanty impossible; and that the shanty could readily have been previously moved or placed by the defendant so as to have permitted the plaintiff to pass in safety: Held, sufficient to be submitted to the jury upon the issue of defendant’s actionable negligence in not providing the plaintiff a safe place to work; and that the courts would not hold as a matter of law that the plaintiff was guilty of contributory negligence.</p> <p>3. Evidence — Nonsuit—Interpretation of Statutes.</p> <p>In an action by an employee of a railroad company for damages for a personal injury alleged to have been negligently inflicted, a motion to nonsuit upon the evidence on the ground that the plaintiff was guilty of contributory negligence, since the enactment of chapter 6, Public Laws of 1913, cannot be sustained.</p>

Appeal by plaintiff from Bond, J., at March Term, 1914, of Martih. Civil action to recover for negligently causing death of plaintiff’s intestate. On motion made by defendant, in apt time, there was judgment dismissing action’as on nonsuit, and plaintiff excepted and appealed.

<p>Appeal by plaintiff from Peebles, J., at September Term, 1914, of GRAVEN.</p>

<p>Appeal by plaintiff from Peebles, J., at September Term, 1914, of CRAVEN.</p>

Appeal by defendant lumber company from Connor, J., at Fall Term, 1914, of WayNE. Civil action to enforce material man’s lien. On the hearing it was made to appear that, in 1912, the defendant T. M. C. A. contracted with the King Lumber Company to build them a hall or home in the city of Raleigh at the contract price of $44,767.48, and that, in July, 1913, the said lumber company sublet the contract for the brick, stone, and cement work to L. 0.

<p>Motion for certiorari.</p>

Appeal by defendant from Bond, J., at October Term, 1914, of Beau-eoet. Civil action to set aside judgment against plaintiff in favor of defendants. .Tbe judgment, at November Term, 1912, bad been entered by default final on a verified complaint, stating a definite amount due on a policy of insurance, and, so far as appears, was in all respects regular.

Appeal by defendant from Bond, J., at November Term, 1914, of N ORTHAMPTON. Civil action tried upon these issues: 1. Was C. H. Harrison killed by tbe negligent running of tbe defendant’s engine, as alleged in tbe complaint? Answer: “Yes.” 2. Was there contributory negligence on bis part? Answer: “Yes.” 3.

Appeal by defendant from Connor, J., at July Special Term, 1914, of HERTFORD. « Civil action tried upon these.issues: 1. Is the plaintiff Hyatt the owner of and entitled to the possession of the property described in the complaint? Answer: “Yes.” 2. Is the defendant Hugh Holloman in the wrongful possession of said property, and does he wrongfully withhold possession thereof from plaintiff Hyatt? Answer: “Yes.” 3.

Appeal by defendant from Ferguson, J., at December Term, 1914, of Martin. Controversy submitted without action.' On the bearing it appeared that plaintiffs, having contracted to sell and convey to defendant a certain piece of land at a stated price, defendant refused to comply with the contract, claiming that rthe title offered was defective.

<p>Vendor and Purchaser — Possession of Purchaser — Payment Upon Condition —Libel—Other Liens — Title—Liability of Purchaser.</p> <p>A sale of a boat having been made upon agreement that the purchaser take immediate possession and the check for purchase price be retained in the hands of a third person until the seller had canceled of record a certain mortgage on the property: Held, the title to the boat passed to the purchaser upon his taking possession, and upon the cancellation of the mortgage the seller was entitled to the purchase price, notwithstanding the boat had been libeled in the meanwhile and a lien thereon for damages to its cargo, while in the purchaser’s possession, had been established by judgment of the court.</p>

Appeal by plaintiff from Long, J., at June Special Term, 1914, of Gates. Petition to rebear an appeal disposed of at tbe last term without an opinion, tbe Court being equally divided, Associate Justice Brown not sitting. Tbe action is to determine 'tbe title to land and to recover damages for trespass thereon.

<p>1. Mortgages — Foreclosure—Mortgagee—Trusts.</p> <p>The right of a mortgagee to foreclose under a power of sale given in mortgage of lands, recognized here, and regulated by our statute, to some extent (Revisal, sees. 1040-1042 et seq.), requires in its exercise the utmost degree of good faith, the mortgagee being regarded as a trustee for the owner as well as the creditor.</p> <p>2. Same — Assignee of Mortgage — Voidable Sales — Purchasers.</p> <p>Where the mortgagee of land purchases at his own sale, either directly or indirectly, the transaction, as between the parties and at the election of the mortgagor, is ineffective as a foreclosure, without the necessity of showing actual fraud, and continues the relationship of mortgagor and mortgagee under the terms of the instrument; and this principle applies, to the assignee of the mortgage, or the debts secured by it, when it is shown that he or his agent or attorney was in control or charge of the sale.</p> <p>3. Mortgages — -Foreclosure — Voidable Sales — Mortgagee in Possession— Waste — Equity—Accounting.</p> <p>Where the foreclosure under a mortgage is rendered ineffectual by the purchase of the lands by the mortgagee, or his assignee, at the foreclosure' sale, who has taken over the property and holds it, he is held to account to the mortgagor for spoil and waste done upon the lands which he has committed or intentionally authorized, while in his possession.</p> <p>4. Mortgages — Voidable Sales — Waste — Accord and Satisfaction — Trials— Questions for Jury.</p> <p>The question of accord and satisfaction by the mortgagor’s accepting a reconveyance of the land by the mortgagee in possession, under the circumstances of this case, was properly submitted to the jury under conflicting evidence and a correct instruction from the court.</p>

Appeal by defendant from Webb, J., at November Term, 1914, of HENDERSON. Civil action beard on case agreed. Plaintiffs, taxpayers and abutting owners on Eiftb Avenue, seek to correct an assessment against them for tbe cost of paving said avenue, alleging tbat same bas been erroneously apportioned by tbe city authorities: (1) Tbat a portion of paving assessed against a street railroad along tbe avenue was not first deducted from tbe estimated cost.

Appeal by defendant from Ferguson, J., at February Term, 1914, of Beaufort. Civil action tried upon tbis issue: 1. Is tbe plaintiff tbe owner of a one-fonrtb interest in tbe land described in tbe complaint? Answer: “Yes.” From tbe judgment rendered, tbe defendant áppealed.

<p>1. Husband and Wife — Wife’s Separate Property — Suretyship of Wife — Direct Obligations — Interpretation of Statutes.</p> <p>A wife by becoming surety on the obligations of her husband creates a direct and separate liability to the creditor of the husband which makes her personally responsible, under chapter 109, Public Laws of 1911, known as the Martin Act, without requiring the statutory formalities necessary to the validity of certain contracts made directly between the wife and her husband.</p> <p>2. Same — Constitutional Law.</p> <p>The State Constitution, Art. X, sec. 6, providing that the separate property of the wife shall not be liable for the debts of the husband, has no application to the obligation of the wife as surety of her husband, such obligation being regarded as a direct one between the creditor and herself within the intent and meaning of the Martin Act, ch. 109, Public Laws of 1911.</p> <p>3. Husband and Wife — Wife as Surety — Fraud—Trials—Evidence.</p> <p>In an action to recover on a note given under seal by the husband as principal and his wife as surety, representations made to the wife by the husband, unknown to the creditor, can afford no evidence of fraud in the procurement of the instrument set up by the wife as a defense.</p> <p>4. Husband and Wife — Wife as Surety — Contracts, Written — Parol Evidence —Statute of Frauds. ®</p> <p>Where the wife signs as surety on a note of her husband, which she fhrther secures by a mortgage on her lands, evidence on behalf of the wife that she only intended to pledge her land for the payment of the debt is in contradiction of the note, and is incompetent as contradicting the written instrument by parol evidence.</p> <p>5. Husband and Wife — Married Women — Actions—Parties.</p> <p>Chapter 109, Public Laws of 1911, known- as. the Martin Act, in conferring on married women the right of freedom of contract, carries with it the privilege of suing and being sued alone.</p>

Appeal by defendant from Daniels, J., at February Term, 1914, of DupliN. Action for the recovery of personal property, viz., a 9% by 12 horsepower engine and a 40 horse-power boiler, which had been sold to the defendant by the plaintiffs, and for which the former had given his note for $318, dated 23 February, 1905, and due one year after its date, plaintiffs retaining the title to the property until the note was paid.

<p>This is an appeal by Henry L. Stevens, one of the commissioners appointed by the former decree of the Superior Court of DupliN County, to sell certain lands described in the pleadings in this cause, heard at the January-Term, 1915, before Peebles, J.</p>

<p>Appeal by plaintiff from Daniels, J., at September Term, 1914, of DupliN.</p>

Appeal by plaintiff from Peebles, J., at September Term, 1914, of Pitt. Action to recover damages for the diversion of water. The defendant denied that it had diverted any water to the injury of the plaintiff, and relied upon the plea of the statute of limitations. The action was commenced 1 March, 1912, and was tried in September, 1914.

<p>1. Contempt of Court — Adjournment — Publication—Jurisdiction—Power of Court.</p> <p>The judge of the Superior Court ordinarily has the inherent power to hear and determine matters of contempt of his court, both as to direct and constructive contempts, without the intervention of the jury; but in proceedings relating to constructive contempt by publication of false and scurrilous matters relating to the acts, conduct, and habits of the presiding judge, or concerning his official or personal conduct, published after the adjournment of the court, it becomes a matter personal to the judge, and he must seek redress by the ordinary methods and bring his cause before an impartial tribunal.</p> <p>2. Same — Statutes—Constitutional Law.</p> <p>While a statute is unconstitutional which unduly interferes with the inherent power of the Superior Courts to summarily hear matters in contempt of court and punish the offenders, objection may not be taken to Revisal, eh. 17, sees. 939 et seq., on this ground, the provisions being in accordance with the modern doctrine; and having reference to the history of this statute, the contest and the language employed, the authority expressly given therein with reference to constructive contempts arising by means of publication, etc., is construed and upheld as written, that the power to punish summarily for defamatory reports- and publications, etc., about a matter that is past and ended, no longer exists.</p> <p>3. Contempt of Court — Jurisdiction—Motion to Dismiss.</p> <p>The refusal of the court to sustain a motion to dismiss the summary proceedings for contempt was proper in this case, it appearing that the newspaper containing the published matter was circulated in the county wherein the court was held at the time in question.</p> <p>4. Reference — Discretion—Contempt of Court.</p> <p>A motion for a reference under section 8Y5, Revisal, is addressed to the discretion of the Superior Court judge, and exception to the order refusing the reference is without merit.</p>

Appeal by plaintiffs Tabitha DeVisconti and B. S. Sheppard and wife from Peebles, J., at October Term, 1914, of Pitt. Petition of intervenors Harry Skinner and E. G. James in above entitled cause. His Honor rendered judgment in favor of the intervenors upon the pleadings, exhibits, records, affidavits, orders, .judgments, and decrees in the cause. Plaintiffs Tabitha DeVisconti and B. S. Sheppard and wife, Sue May Sheppard, appeal.

Appeal by plaintiffs from Daniels, J., at March Term, 1914, of Pitt. Action in which the plaintiffs are asking for damages from the defendant railroad company and the town of Greenville for building a culvert and closing a ditch which ran through their land and across Dickinson Avenue immediately under where the railroad crosses.

<p>1. Pleadings — Verification—Judgments.</p> <p>It is held that the complaint in this case was verified substantially in the words of the statute, and the refusal of the trial judge to render judgment for the defendant on the pleadings was proper.</p> <p>2. Evidence — Deceased — Transactions, etc. — Trials—Instructions—Expressions of Opinion.</p> <p>In an action on a note brought by husband and wife against the administrator of the deceased, it is incompetent for the husband to testify that he was present at the time and saw the deceased receive the money for the note, for this is evidence of a transaction with the deceased by an adverse party in interest, forbidden by the statute; but where this testimony has been given without objection, it is not an expression of opinion upon the evidence for the trial judge to state the law to the jury and remárk that he would have ruled it out had it been objected to, for this is only a caution to the jury that they should scrutinize his testimony, and does not cast any imputation upon the truthfulness of the witness.</p>

Appeal by tbe defendant from tbe refusal by Cooke, J., at March Term, 1914, of Wake, of a motion to set aside tbe judgment on tbe ground of excusable neglect.

Appeal by plaintiff from Peebles, J., at November Term, 1914, of CRAVEN. Civil action. Tbe complaint and tbe answer were read and tben tbe defendants demurred ore terms upon tbe ground tbat tbe complaint failed to state a cause of action. His Honor sustained tbe motion and dismissed tbe action. Tbe plaintiffs appealed.

Appeal by plaintiff from Whedbee, J., at November Term, 1914, of FRANKLIN. Civil action. Plaintiff is a manufacturer of fertilizers, and defendant a merchant of Louisburg, who deals in fertilizers, selling them on credit to farmers.

Appeal by defendant from Peebles, J., at November Term, 1914, of CRAVEN. Civil action -to recover damages for wrongfully cutting timber on a tract of land; involving also an issue as to title. The action was instituted on 10 April, 1912. Title was admitted to be out of the State.

<p>Appeal by defendant from Daniels, J., at October Term, 1914, of SAMPSON.</p> <p>Action to recover tbe purchase price of certain timber on a tract of land known as tbe Wilson tract. '</p> <p>On and prior to 14 June, 1907, tbe plaintiff was tbe owner of certain timber, timber rights and easements in Sampson County, and on said date entered into a contract with tbe defendant to sell certain of said timber upon tbe terms and conditions as set out in a contract at that time entered into between plaintiff and defendant. Tbe defendant, complying with said contract and agreement, took deeds for all tbe timber described, upon tbe terms and conditions therein contained, and paid for same, with tbe exception of tbe one tract which is in dispute. This particular tract tbe defendant claims it was not compelled to take on account of tbe fact that tbe said contract does not require, it to take any of tbe said timber to which tbe plaintiff has not a good title, or any of said timber to which tbe plaintiff does not have a title which “is good and sufficient and free from all encumbrances,” and a title which is “absolutely free from all conditions and encumbrances.” Tbe defendant also contends that they were not required to take said timber until tbe plaintiff bad tendered them such title as above referred to,- and that they should then have a period of ten days within which to investigate such title.</p> <p>Tbe jury returned tbe following verdict:</p> <p>1. Did tbe plaintiff, Tbe Bryant Timber Company, tender to defendant, Tilgbman Lumber Company, a good and sufficient deed for tbe timber rights and easements as set forth in tbe complaint, and if so, when? Answer: “Yes; 5 November, 1909.”</p> <p>2. Did defendant, 'Tilghman Lumber Company, wrongfully refuse to accept said deed? Answer: “Yes.”</p> <p>3. What was tbe price agreed to be paid for said timber rights and easements? Answer: “$7,500.”</p> <p>4. What amount is plaintiff entitled to recover of defendant for said timber? Answer: “$7,500, with interest from lB November, 1909.”</p> <p>His Honor charged tbe jury: That if tbe jury shall believe all tbe evidence in tbe case, they should answer tbe first issue “Yes; 15 November, 1909,” and tbe second issue “Yes,” and tbe third issue “$7,500, with interest from 15 November, 1909.”</p> <p>Tbe defendant excepted.</p>

Appeal by defendants from Peebles, J., at October Term, 1914, of Pamlico. This action was brought to recover the value of certain mules and land sold by defendant, the Washington Horse Exchange Company, under a mortgage giyen by the defendant to it. There is a power of sale 'in the mortgage, but it is restricted to the land.

<p>Appeal by defendant from Daniels, J., at December Term, 1914, of Lenoie.</p> <p>Petition in the cause. From the order made’by his Honor, continuing the restraining order to the hearing and refusing to order the payment to the defendant Faulkner of certain money in the hands of a commissioner, the defendant appealed.</p> <p>Certain interpleaders, W. C. Fields, John G. Cox, and others named in their interplea, asked that the funds in the hands of the commissioner be applied to the payment of certain judgments against the defendant.</p>

<p>Appeal by plaintiff from Rountree, J., at November Term, 1914, of LENOIR.</p>

Appeal by plaintiff from Peebles, J., at October Term, 1914, of Pam-lico. Proceeding to sell land for assets, beard in tbe Superior Court upion appeal from tbe clerk. Tbe only issue submitted to tbe jury was as to tbe indebtedness of tbe intestate. Tbe plaintiff introduced a note and a witness wbo testified tbat be saw tbe deceased execute it.

<p>1. Bills and Notes — Blank Spaces — Interest—Legal Rate — Presumption.</p> <p>Where no stipulated rate of interest is named in a promissory note, the legal rate will apply, and where the note reads “at-per cent per annum” it will he regarded as reading at 6 per cent per annum, the law thus filling, at the legal rate, the space left blank, and the negotiability of the instrument is not affected thereby.</p> <p>2. Bills and Notes — Exchange of Notes — Consideration.</p> <p>In the exchange by two parties of their promissory notes, the giving of each note affords a sufficient consideration for the other.-</p> <p>3. Trials — Issues Sufficient — Appeal and Error.</p> <p>The refusal of the court to submit the issues tendered by the appellant will not be held as erroneous when the issues passed upon by the jury have afforded the parties opportunity to introduce all pertinent evidence to the matter in controversy arising under the pleadings.</p> <p>4. Bills and Notes — Banks and Banking — Holder in Due Course — Deposits—• Trials — Instructions—Verdict, Directing.</p> <p>Where all the evidence in an action brought on a note by a bank claiming to be a holder in due course of an instrument regular upon its face tends only to show that the note was indorsed to the bank by the payee, the money placed to his credit and drawn out by him before maturity; that there was no arrangement between the depositor and the bank by which this or other unpaid notes were charged back to him in event of nonpayment, it is proper for the trial judge to charge the jury that if they should find the facts to be as testified they should answer the issue in the plaintiff’s favor.</p>

Appeal by defendant from Whedbee, J., at October Term, 1914, of Waxe. Action for the recovery of $750, plaintiff’s part of the commissions for selling certain “timber and timber rights” belonging to the Deep River Lumber Corporation.

Appeal by defendant from Whedbee, J., at October Term, 1914, of Wake. Action to recover upon two contracts of insurance.

<p>Appeal by plaintiff from Connor, J., at August Term, 1914, of WayNE.</p> <p>■This ease, for tbe recovery of land, involves tbe construction of tbe will of Haywood D. Ham, Sr., wbo died on 31 May, 1859. He devised bis borne place, containing 175 acres, to bis wife, Penny Ham, for life, and’ all tbe rest of tbe land of wbicb be died seized and possessed to bis four sons, Matthew J. Ham, George D. Ham, Erastus Ham, and Haywood D. Ham, Jr., “to be equally divided between them, but should either tbe said Matthew, George, Erastus, or Haywood die before arriving at tbe age of 21, or without children surviving him, then bis or their share shall go to tbe others that are living, but not to any of my other children.” Tbe other tract of 175 acres be then devised to bis said four sons, subject to tbe life estate of bis wife, upon substantially tbe same limitations, though there is a slight difference in phraseology, tbe last devise being in these words: “Should either of my sons, Matthew, George, Erastus, or Haywood, die before arriving at tbe age of 21, or leaving children surviving him, then and in that case his or their share shall be taken and divided equally between those that are living”; the words, “but not to my other children,” being omitted from this clause of-the will. It is alleged in the complaint that, by other clauses of the will, “the testator made ample and equitable provision for all of his other children, and his widow, Penny Ham, is dead.”</p> <p>The said four sons attained to the age of 21 years and all died without leaving a child, except Matthew J. Ham, who left children. When the four sons were of age, the lands devised to them in their father’s will was partitioned equally- among them, and each of them took possession of the share allotted to him. The partition was made under the following clause of the will of Haywood D. Ham, Sr.: “Whenever the said Matthew, George, Erastus, or Haywood D., shall arrive at the age of 21, the one so attaining age may by petition have a division of the land that I have given them, have bis share set apart in severalty, and the balance to be cast back and remain and continue to be held by the others as tenants in common, and as each one arrives at the age of 21 be may file a petition and have bis share allotted to him, and so may each one as he attains the age of 21 continue to do.”</p> <p>George D. Ham died on 30 June, 1887, and his share was divided among the other three surviving brothers, Matthew J. Ham, Erastus Ham, and Haywood D. Ham, Jr. Matthew J. Ham died on 13 April, 1893, leaving children, who are the plaintiffs. Erastus Ham died 6 November, 1893, leaving a will, in which he devised his interest in tbe said lands, both his original and accrued shares, to his brothers and sisters of the whole blood, who sold and conveyed it to Haywood D. Ham, Jr., who died on 26 May, 1914, leaving a will in which he devised to certain of the defendants bis original share in the lands of bis father, which was devised to him, and as allotted to him in the division among the four sons, and that part of said lands which was allotted to Erastus Ham in the original partition, and also in the division of the share of George D. Ham, he claiming to have purchased the same from the devi-sees of Erastus Ham, the said Haywood D. Ham, Jr., having conveyed the part allotted to him in the division of the share of George H. Ham to the children and heirs of Matthew J. Ham, who conveyed to Haywood D. Ham, Jr., the part allotted to them in the division of the share of Erastus Ham, which seems to have been an exchange of the said interests.</p> <p>Plaintiffs further allege in their complaint that they are the owners and entitled to the possession of the land described in the complaint, being a part of that willed by Haywood D. Ham, Sr., to his four sons, and which were devised by Haywood D. Hard, Jr., in his will to certain of the defendants. The defendant Mary J. Ham is the widow of Haywood D. Ham, Jr., deceased, and is in possession of all the said lands; ■ defendants Nancy Hill and Mary A. Casey are sisters of the four sons, Matthew, George, Erastus, and Haywood, who are the devisees under the will of Haywood D. Ham, Sr.; the defendants Carrie-Harrell, Bertha Casey, Will Casey, Lou Pearl Edwards, Eva Casey, and S. J. Casey are the children of Ellen Casey, deceased, another sister of the said devisees, the said sisters being the children of Haywood D. Ham, Sr.; and Curtis Howell and Rachel Howell are grantees of Haywood D. Ham, Jr., as to 3 acres of said land. The prayer of the complaint is that plaintiffs be declared to be the owners of the land therein described, and entitled to the immediate possession thereof, and for costs.</p> <p>Defendants demurred to the complaint upon the ground that under the will of his father and the deeds executed to him, Haywood D. Ham, Jr., was seized and possessed of the said lands at his death, and by his will they were devised to certain of the defendants, who thereby became and are now the owners thereof.</p> <p>The court held that upon the death of Matthew J. Ham, leaving surviving him the plaintiffs as his children and heirs at law, the share of the said Matthew J. Ham in the division of the lands of Haywood Ham, Sr., "descended to the plaintiffs as the heirs at law. of said Matthew J. Ham, together with an undivided one-third interest in the share of George D. Ham in the said division of the lands of Haywood Ham, Sr.; that upon the death of Erastus Ham, his share in the division of the said lands of Haywood Ham, Sr., passed by the will of Erastus Ham and subsequent deeds to Haywood D. Ham, Jr., in fee, together with the one-third interest of Erastus Ham in George D. Ham’s share in said division of the lands of Haywood D. Ham, Sr.; that upon the death of Haywood D. Ham, Jr., there being no survivors of tbe brothers, the share of Haywood D. Ham, Jr., in the division of the lands of Haywood Ham, Sr., together with the share which passed to him from Erastus Ham and the one-third interest in George D. Ham’s share in said division, passed under the will of Haywood D. Ham, Jr., to the defendants, and thereupon sustained the demurrer.</p> <p>Plaintiffs appealed from the judgment.</p>

<p>Appeal by plaintiff from Coolce, J., at October Term, 1914, of Oum> BERLAND.</p>

<p>1. Insurance, Life — Premiums—Payment—Waiver—Evidence.</p> <p>The payment of a premium on a life insurance policy, according to its terms, is necessary to keep the insurance in force; and this requisite is not waived when the insurer receives the money for the premium when it is past due, in ignorance of the sickness of the insured, resulting in his death, without issuing a receipt, requests a statement of good health from the insured, and returns the money after his death, shortly thereafter occurring.</p> <p>2. Evidence — Letters—Originals—Notice to Produce — Carbon Copies.</p> <p>When the opposing party has been notified to' produce the original letters, in his possession, at the trial, carbon copies thereof are admissible as evidence when the original ones would be, and when duly proven by the person who wrote them.</p>

Appeax, by defendant from Oonnor, J., at October Term, 1914, of Lee. Civil action to recover damages for breach of a written contract to convey land.

<p>. Appeal by defendant from Goolce, J., at September Term, 1914, of CUMBERLAND.</p> <p>This action was brought to recover the amount due upon a note and agricultural lien given for advances in supplies and so forth, to be made to defendant by the plaintiff in 1912, and to be used in the cultivation of his farm of 172 acres in said county. Plaintiff alleged, and there was testimony to show, that the balance due for supplies furnished by him, after proper deduction for payments, was $1,388.62. • Defendant set up a counterclaim, alleging therein that he had paid for all supplies except certain fertilizers, which were furnished by plaintiff with a special representation, upon which he relied and which induced him to purchase the same, that they would be of standard grade, containing certain chemical ingredients, and that this contract of warranty was broken by plaintiff, entailing damage to the defendant in the loss or diminution of his crop and injury to his land in the sum of $6,000.</p> <p>The defendant tendered an issue in these words: “Did the fertilizer furnished by the plaintiff to the defendant come up to the standard grade ?”</p> <p>The court submitted these issues:</p> <p>1. In what amount, if anything, is the defendant indebted to the plaintiff for wares, goods, and merchandise sold by the plaintiff to the defendant under the lien and mortgage described in the complaint ?</p> <p>2. What was the value of the property seized by the sheriff in the claim and 'delivery herein, at the time of the seizure ?</p> <p>3. In what amount, if anything, is the plaintiff indebted to the defendant on account of the counterclaim set up in the defendant’s answer?”</p> <p>Tbe court charged the jury to answer the first “$1,388.62,” the second issue as they might find the value of the property to be, seized by the sheriff, and the third “Nothing,” and the jury rendered their verdict accordingly, answering the second issue ¿“$663.12.”</p> <p>The plaintiff’s witness, P. S. Stead, who was salesman for the plaintiff, testified to an additional representation in the sale of the fertilizer, as follows: “I told him that the fertilizer was all right; that it was good guano for cotton or for anything. I do not remember that he asked me if it was good for corn. I am certain that I told him it was good for cotton. I do not know whether he bought it on my recommendation or not, but he did buy it.” But no notice is taken of this fact, if it be a fact, in the complaint.</p> <p>Defendant’s witness, John Campbell, testified: “I used some of the 8-3-3 fertilizer in 1912, which I obtained from Mr. McGill. I used it on some corn. It had no effect on my corn. I used about 600 pounds, three sacks to the acre. The crop was properly cultivated. The land was good for either cotton or corn. I got the fertilizer from Mr. Mc-Gill.”</p> <p>Defendant also proved by other witnesses that they used the fertilizers on their lands in the same neighborhood, and then proposed to prove what were the results, but was stopped by plaintiff’s objections. The questions were ruled out. He also proved that some of the fertilizer was “dumped into a field,” and proposed to show what effect it had upon the land, but this question was also excluded. He finally proposed to show by several witnesses (naming them) that they used the same fertilizer, “and that it was worthless and had no beneficial results upon the crops where it was used.” This was excluded upon objection by plaintiff.</p> <p>There was certain evidence as to the rules and practice of the Department of Agriculture in making analyses of fertilizers, which appears to he incompetent, but is not material, in the view taken of the case by the Court. There was judgment upon the verdict, and the defendant appealed and assigned errors.</p>

<p>Appeal by defendant from Daniels, J., at September Term, 1914, of DUPLIN.</p> <p>Civil action to recover possession of certain personal property, described in a deed from Calvin H. Herring, the plaintiff’s intestate, to the defendants, dated 27 November, 1912.</p> <p>His Honor directed a verdict, and rendered judgment for the plaintiff. The defendants appealed.</p>

<p>1. Railroads — Negligence — Pedestrians — Helpless Condition — Trials—Evidence — Questions of Jury.</p> <p>In an action against a railroad company to recover for the wrongful death of plaintiff’s intestate (Revisa^ sec. 59), there was evidence that the intestate -was last seen, intoxicated, going towards his home on the defendant’s railroad track, on a bright moonlight night, and that the defendant’s train thereafter passed going the same direction, with its engine equipped with an old-fashioned headlight and without ringing the bell or giving other warning of its approach, though its track at that place was through a populous portion of a town and customarily used by pedestrians; that from the injuries to the body of the deceased, etc., and from flesh and blood along the track, the body had been rolled along under the train across a 40-foot trestle, the severed head being at one end of the trestle and the body at the other end, and articles he had been carrying home being strewn along the side of the track; that the engine was equipped with a Y-shaped cowcatcher, the bottom of which was about 8 inches from the ground; HeW, evidence sufficient to he submitted to the jury upon the question of whether the intestate at the time he was killed was down and helpless upon the track, and the actionable negligence of the defendant’s engineer in not seeing him in time to have avoided killing him in the exercise of proper care.</p> <p>2. Railroads— Electric Headlights — Negligence—Pleadings—Trials—Burden of Proof — Interpretation of Statutes.</p> <p>It is' negligence for a railroad company not to equip its locomotives ’with electric headlights (Pell’s Revisal, sec. 2617, a), with the burden on the company to plead and prove that it had one in use at the time complained of or that its use was excepted by the statute, when relevant to the inquiry.</p>

Appeal by defendant from Cooke, J., at September Term, 1914, of CUMBERLAND. Tbis action was brought to recover damages for failure to deliver a message, addressed to plaintiff at Fayetteville, N. C., by Ms sister, Mrs. H. C. Freeman, at Lumberton, N. 0., at 11:30 a. m. on 8 May, 1913, in tbe following words: “Mother died yesterday.

<p>Appeal by plaintiff from Daniels, J., at June Term, 1914, of Geeeke.</p> <p>Civil action tried upon these issues:</p> <p>1. Did R. L. Davis execute and deliver tbe deed to Mrs. Elizabeth Anne Fields, as alleged in the complaint? Answer: “Yes.”</p> <p>2. Did the defendant Roscoe A. Fields purchase the land described in the deed of Jeremiah Fields, dated 2 April, 1906, for value? Answer: “Yes.”</p> <p>3. Did the defendant Roscoe A. Fields purchase the land described in the deed of Jeremiah Fields, dated 10 February, 1911, for value? Answer: “Yes.”</p> <p>His Honor rendered judgment in favor ‘ of the defendant, and the plaintiffs appealed.</p>

<p>Appeal by defendant from Ferguson, J., at January Term, 1915, of "WarreN.</p>

<p>Wills — Devises—“Children”—Interpretation—Grandchildren.</p> <p>A devise and bequest oí the residue of real and personal property to the “wife and children” of the testator will not include therein his grandchildren, unless the contrary intent is shown by necessary implication from the terms or expressions used in the will; and in interpreting the will under consideration it is held that the testator used the word “children” in its ordinary sense.</p>

<p>1. Municipal Corporations — Condemnation—Statutory Authority — -.Unauthorized Acts. ■</p> <p>A municipal corporation may not exercise the power of eminent domain in acquiring lands of private owners for street purposes unless the same is expressly conferred by statute or by clear or necessary implication from its terms.</p> <p>2. Same — Damages—Compensation.</p> <p>Where a municipal corporation has taken the lands of a private owner for street purposes under an unauthorized attempt to acquire it by condemnation, the latter may waive the tort and resort to his common-law action for compensation.</p> <p>3. Same — Tort—Waiver.</p> <p>Where a municipal corporation has assumed to take lands of a private owner for street purposes without his consent or legislative authority for condemnation, the latter may waive the tortious entry and want of power to condemn, and recover upon an implied assumpsit, on the part of the town, to pay a just and reasonable compensation.</p> <p>4. Municipal Corporations — Unauthorized Acts — Condemnation — Statutory Authority — Consent of Owner.</p> <p>The express or implied consent of the owner of lands that they may be taken by a municipality for street purposes will have the force and effect of a transfer to the municipality of the property thus taken; and where he sues to recover compensation therefor he will not be heard to assert otherwise.</p> <p>5. Municipal Corporations — Condemnation—Unauthorized Acts — Evidence-Value of Lands — Appeal and Error — Harmless Error.</p> <p>In this action to recover damages of a municipality for the unlawful appropriation of the plaintiff’s lands for street purposes, testimony of a price offered by a witness for plaintiff’s land, if not competent as substantive evidence, was only admitted for the purpose of contradicting him or impeaching his estimate of its value, and is not held as reversible error on defendant’s appeal.</p> <p>6. Trials — Issues, Sufficient — Appeal and Error.</p> <p>Issues raised by the pleadings and evidence which are sufficient to present all controverted matters will not be held erroneous on appeal.</p> <p>7. Municipal Corporations — Condemnation—Unauthorized Acts — Compensation — Agreement—Estoppel—Appeal and Error.</p> <p>The defendant, a municipal corporation, which had attempted to appropriate a part of the plaintiff’s land for street purposes by condemnation without legislative authority, cannot rely, on appeal, upon an agreement alleged to have been made with the plaintiff, as an estoppel, when it appears that the question as to the existence of an agreement was properly decided by. the jury in the plaintiff’s favor.</p> <p>8. Municipal Corporations — Condemnation — Appropriation Unauthorized— Compensation — Measure of Damages.</p> <p>The measure of damages to the plaintiff for the unlawful appropriation of a part of the lands for street purposes by a municipal corporation is the value of the lands taken, subject to the diminution in value to the remainder, or the difference in value before and after the street was opened.</p>

Appeal by defendant from Bond, J., 28 January, 1915, at chambers; from Beaupobt. Civil action beard on return to restraining order, by consent, and upon case agreed.

Appeal by defendant from Goolce, J., at December Term, 1914, of ROBESON. Civil action beard upon motion of plaintiff to strike out tbe answer and render judgment upon tbe complaint for tbe relief demanded. The court granted said motion. Defendants appealed.

Appeal by plaintiff from Lyon, J., at November Term, 1914, of Foe-syth. Tbe plaintiff, as an employee of one W. H. Ziglar, traded a borse to tbe defendant, upon wbicb it is alleged one W. N. Cundiff beld a chattel mortgage, given by tbe man from whom Mr. Ziglar bad purchased tbe borse.

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

Appeal by defendant from Coolce, J., at October Term, 1914, of CUMBERLAND. Civil action to recover balance due on note of Cherokee Lumber Company, payable to plaintiff bank, on the back of which appeared name of defendant.

Appeal by plaintiff from Cooke, J., at November Term, 1914, of RobesoN. This is a proceeding for the partition of land, and the only question presented for decision depends upon the construction of a deed executed on 27 September, 1889, by William W. Powell to his son, William 0.

<p>Appeal by defendant from Lyon, J., at chambers in 'Winston, 18 September, 1914; from Surry.</p>

Appeal by defendant from Allen, J., at September Term, 1914, of New IIanoveR. Civil action tried upon these issues : 1. Was tbe plaintiff’s intestate killed by tbe negligence of tbe defendant Atlantic Coast Line Eailroad Company, as alleged in tbe complaint ? Answer: “Yes.” 2. Was tbe plaintiff’s intestate guilty of contributory negligence, as alleged in (by) tbe defendant Atlantic Coast-Line Eailroad Company? Answer: “No.” 3.

<p>Appeal by defendants from 0. H. Allen, J., at August Term, 1914, of. BeuNswick.</p> <p>Civil action to recover damages for wrongfully setting fire to woodland.</p> <p>There was evidence on part of plaintiffs tending to show that defendants, on or about 17 March, 1911, set fire to their woods, adjoining a large body of land owned by plaintiffs as tenants in common, without giving the written notice required by the statute; that the fire was communicated to the lands of plaintiff, doing considerable damage.</p> <p>Defendant resisted recovery, insisting, chiefly, that H. G. Hewett, one of plaintiffs, had waived the giving of notice, and that such waiver on his part would prevent recovery for the damages caused, both as to him and his cotenants.</p> <p>The jury rendered the following verdict:</p> <p>1. Did the defendants give the plaintiffs two days notice in writing of their intention to burn their own land? Answer: “No.”</p> <p>2. Did the defendants set fire to and burn the lands of the plaintiffs ? Answer: “Yes.”</p> <p>3. What damages are plaintiffs entitled to recover by reason of the said burning? Answer: “$350.”</p> <p>4. Did H. G. Hewett waive his rights to damage? Answer: “No.”</p> <p>Judgment. Defendants excepted and appealed.</p>

<p>1. Trials — Nonsuit—Evidence—Questions for Court — Questions for Jury.</p> <p>The .court is confined to the single inquiry, upon a motion to nonsuit upon the evidence, whether there is any legal evidence upon which the jury may render their verdict in the plaintiff’s favor; and if there is, it is for the jury to pass upon its weight and sufficiency under the rule that the evidence must be interpreted most favorably to the plaintiff.</p> <p>2. Negligence — Circumstantial Evidence — Sufficiency.</p> <p>Where negligence is alleged as the basis of an action it may be proven by circumstantial evidence, and while it must do more than raise a possibility or conjecture, the plaintiff is entitled to have it submitted to the jury if, after a fair consideration, the more reasonable probability is in favor of the plaintiff’s contention.</p> <p>3. Same — Railroads—Fires.</p> <p>in an action to recover damages for loss by fire alleged to, have originated from a spark from the locomotive of defendant railroad company igniting combustible matter upon its rights of way and then passing to the plaintiff’s lands, evidence of the defendant’s negligence is sufficient to be submitted to the jury which tends to show that defendant’s train passed tlie lfiace about three hours before the fire was first seen, the fire had burnt slowly two or three hundred yards in a swamp, and finally passing through to the plaintiff’s lands, going in the direction of the wind and widening out from the defendant’s roadway and indicating it had originated thereon ; and that the only other evidence of a fire in that locality was a small one in the woods five or sis days before.</p>

<p>f. Parties — Courts—Discretion.</p> <p>Tlie refusal of the trial court to make parties not necessary to the controversy rests within the discretion of the trial judge, which is not reviewable.</p> <p>2. Same — Tort Feasors — Separate Degree of Liability.</p> <p>Where two tort feasors are sued for damages arising from an act for which one of them is primarily liable, and subject to an action for the commission of the same tort by the other one, who is secondarily liable, it being the policy of the law to determine controversies of this character in one action rather than in two, it is reversible error, when the plaintiff has brought his action against the one secondarily liable, to-refuse, at the instance of the defendant or of both tort feasors, to permit the one primarily liable to become, a party defendant and set up and show his defense for the benefit of them both.</p> <p>3. Same — Contribution.</p> <p>While ordinarily there is no contribution between tort feasors, and a recovery against 'one joint feasor sued alone will not permit a recovery by him against the other, this principle will not apply when their liability for the act committed is not in the same degree, one of them being a primary liability and the other a secondary one; for when the action is solely against the one secondarily liable, he has not the same incentive for resisting a recovery.</p> <p>4. Parties — Court’s Discretion — Tort Feasors — Municipal Corporations — Excavation — Degrees of Liability.</p> <p>Where a municipality permits a property owner to excavate along the sidewalk of its. streets, who, while the excavation is being dug, surrounds it with a fence, which gives way while a pedestrian is leaning thereon, who, being injured, brings his action against the city alone for alleged negligence in permitting a dangerous condition to exist, the negligent act of the property owner would be antecedent, in point of time, to that of the city, in failing to exercise a proper degree of supervisory care; and the liability of the city is secondary to that of the property owner who caused the excavation to be made.</p> <p>Hoke, J., dissenting; Allest, J., concurring in dissenting opinion.</p>

Appeal by defendant from Whedbee, J., at December Term, 1914, of Wake. Civil action beard upon exceptions to report of referee and motion to set aside a judgment by default and inquiry, rendered at December Term, 1913, by CooTce, J., and a judgment of September Term, 1914, confirming tbe report, no exceptions thereto- having been filed.

Appeal by defendant from Peebles, J., at September Term, 1914, of Pitt. Civil action to enjoin erection of a brick building on defendant’s right of . way, beard on return to preliminary restraining order. On tbe bearing tbe restraining order was made permanent and enjoining defendant from further proceeding with tbe building, whereupon defendant excepted and appealed.

Appeal by defendant from Bragaw, J., at December Term, 1913, of Beaufoet. . This action is a consolidation of two actions originally brought and entitled “Charles L. Morton v. Washington Light and Water Company” and “W. B. Morton, trading as W. B. Morton & Co., v. Washington Light and Water Company.” The alleged damage in each instance was based upon the same alleged negligence, and at the trial of the action the two causes were consolidated, by consent.

Appeal by plaintiff from Lyon, J., at September Term, 1914, of Eos-SYTII. Plaintiff, a corporation having its residence in Winston-Salem, N. C., where it conducts its business and has real and personal property of a tangible nature, applied to the board of commissioners of Forsyth County to correct and reduce the valuation of said property, because it was excessive.

<p>Appeal by defendant Realty Company from Whedbee, J., at October Term, 1914, of "Wake.</p> <p>Civil action tried upon this issue: “Did plaintiff L. R. Burch., on 8 December, 1913, have sufficient mental capacity to make the contract set out in the pleadings? Answer: No.”</p> <p>Thereupon the court adjudged that certain notes and contract executed by the plaintiff for purchase money of certain lands be canceled, and that he recover from the defendants, the American Realty and Auction Company, the sum of $660, the cash payment made on said land. Defendants appealed.</p>

<p>Banks and Banking — Bills and Notes — Forged Signatures — Payment by Drawer — Liability of Cashing Bank.</p> <p>Tbe indorsement, on a draft in course of collection by corresponding banks, “All prior indorsements guaranteed,” does not give tbe drawee bank a cause of action against tbe cashing bank when the name of tbe drawer has been forged and draft is paid by tbe cashing bank in good faith, and thereafter the draft is paid by the drawee bank, for the latter is presumed to know the signatures of its depositors and detect the forgery; therefore the drawee bank may not recover from the cashing bank the amount it lias thus paid, upon the allegation that the latter has not acted with reasonable precaution in cashing the draft.</p>

Appeal by plaintiff from Devin, J., at December Term, 1914, of G-uil-eoed. Civil action.

Appeal by defendant from Lyon, J., at January Term, 1915, of Guil-eokd. Tbe defendant is a corporation engaged in tbe business of furnishing electricity to tbe inhabitants of tbe city of Greensboro for lighting purposes, and, as such, it contracted with tbe Cook-Lewis Foundry Company to supply it with electricity for said purpose, tbe current not to exceed 119 volts.

Appeal by defendant from 0. H. Allen, J., at November Term, 1914, of Columbus. Action to recover land, in wliicli tbe plaintiff claims title under the following chain of title: 1. Deed from Shade Woot-en to his wife, Sarah E. Wooten, dated 4 August, 1880, registered 7 June, 1882. It was admitted that the defendants claimed title under a deed from Sarah E. Wooten and her husband, Shade Wooten. 2.

<p>Appeal by plaintiffs from tbe refusal by Lyon, J., of an injunction to tbe bearing at chambers, in Greensboro, 20 March, 1915; from DavidsoN.</p>

Appeal by defendants from Whedbee, J., at October Term, 1914, of Wake. Civil action to recover $428.58, balance due for material furnished for plastering work on T. M. O. A. building in Raleigb.

<p>Appeal by both parties from Devin, J., at May Term, 1914, of FORSYTE.'</p> <p>Civil action tried upon these issues:</p> <p>1. Did tbe defendant, with intent to cheat and defraud the plaintiff, falsely and fraudulently misrepresent to the plaintiff the purchase price of the “Freeman Mill” property, as alleged in the complaint ? Answer: “Yes.”</p> <p>2. Did the defendant, by such false and fraudulent misrepresentation, obtain from the plaintiff any money, and if so, what amount ? Answer: “$750, with interest from date of sale.”</p> <p>3. Is the defendant indebted to the plaintiff on account of the note and deed of trust signed by him, as alleged in the complaint, and if so, in what amount? Answer: “No.”</p> <p>From the judgment rendered,. the plaintiff and defendant both appealed.</p>

Appeal by defendant from Devin, J., at September Term, 1914, of Guilford. Action to recover an amount alleged to be due on a special contract to prepare plans and specifications for a bouse wbicb tbe defendant intended to build. Tbe defendant alleged tbat tbe plaintiff bad failed to perform bis contract, and pleaded a counterclaim in tbe sum of $200 for money advanced to tbe plaintiff, wbicb be alleges the plaintiff promised to repay.

Appeal by defendant from Rountree, J., at December Term, 1914, of ORANGE. Civil action tried upon these issues -: 1. Was the plaintiff injured by the negligence of the defendant company, as alleged in the complaint? Answer: “Yes.” 2. Did the plaintiff, by his own negligence, contribute to his injury? Answer: “Yes.” 3. What damages, if any, is the plaintiff entitled to recover? Answer: “$500.” In apt time the defendant moved to nonsuit, which motion was overruled.

<p>Appeal by plaintiff from Lane, J., at November Term, 1914, of ANSON.</p>

Appeal by plaintiff from Lyon, J., at August Term, 1914, of Stjbby. Action to recover the balance due on notes executed for the purchase price of certain machinery and to subject certain property conveyed to the payment thereof. On 25' June, 1908, the plaintiff through its agent, Dellinger of Salisbury, together with E. A. Griffith of Winston-Salem, sold to the defendant Boles a portable engine and thresher, the purchase price to be $875.

Appeal by plaintiff from Lane, J., at October Term, 1914, of ÁNSON. Plaintiffs ordered twenty-three buggies, shafts and wheels, from Henderson-Hull Company at Yaldosta, Ga., in July, 1907, and they were delivered to defendant to be shipped to the plaintiffs at Wadesboro, N. 0. When they arrived, at the latter place they were in a badly damaged condition, caused by defendant’s negligence. The only question presented is the one relating to the measure of damages.

Appeal by plaintiff from Devin, J., at November Term, 1914, of Guileobd. Civil action, brought by the plaintiff J. M. Hedgecock against the defendants A. E. Tate et al., to recover damages for failure of the defendants to comply with the terms of an option.

Appeal by defendant from Daniels, Jat November Term, 1914, of Dttbham. Civil action beard on case agreed.

Appeal by defendants from Ferguson, Jat November Term, 1914, of WlLSON. Action to recover damages for personal injury, caused, as tbe plaintiff alleges, by tbe negligence of tbe defendant while be was a passenger in a caboose attached to a freight train of tbe defendant. Tbe defendant denied that it was negligent and pleaded that tbe injury to tbe plaintiff was caused by bis own contributory negligence.