Volume 170 — North Carolina Reports

<p>Appeal by plaintiff from Allen, J., at May Term, 1915, of Cumber-LAND.</p>

Appeal by defendant from Rountree, J., at the May Term, 1915, of New HaNovee. Action brought by the plaintiff to recover of the defendant the amount of loss claimed to have been sustained on account of damage by fire to the property insured, upon a contract of insurance. The case was heard upon complaint and demurrer. From the judgment overruling the demurrer the defendant appealed.

Appeal by plaintiff from Whedbee-, J., at tbe September Term, 1915, of ROBESON. Civil action, brought to enjoin a sale under execution of certain property described in tbe complaint, beard upon a demurrer ore tenus to tbe complaint upon tbe ground' tbat it fails to state a cause of action. His Honor sustained tbe demurrer and dismissed tbe action. Plaintiff appealed.

<p>1. Telegraphs — Free Delivery Limits — Extra Charge Paid — Negligence—Evidence — Questions for Jury.</p> <p>Where a telegraph company has wired back to the sending point and asked for extra payment for delivery beyond the free delivery limits of the terminal office, which is made by the sender at 8:30 o’clock a. m., and the message is not delivered at a distance of two and one-half miles until 10:30 o’clock of the same day, the transmission of the message by wire being local, the case should be submitted to the jury upon the question of the defendant’s negligence in not sooner delivering the message.</p> <p>2. Telegraphs — Principal and Agent — Declarations—Trials—Evidence Contradictory.</p> <p>Where negligence is alleged in an action to recover of a telegraph company damages for not promptly transmitting and delivering a message announcing a death, testimony that the defendant’s agent said, at the time, that the message was not delivered because he did not know where the sendee lived, is competent when contradictory of his evidence given at the trial.</p> <p>8. Telegraphs — Measure of Damages — Hiring Conveyance — Trials—Questions for Jury.</p> <p>In an action to recover damages of a telegraph company for its negligent delay in the transmission and delivery of a telegram, where the evi-deuce in defendant’s behalf tends to show that the plaintiff could have avoided the damages by hiring a conveyance for $5, and, in plaintiff’s behalf, that he would have paid more than the $5, but did not have the money to hire the conveyance, the question of the amount of damages, upon the negligence of the defendant being shown, is one for the jury, and not limited to the $5 for which the conveyance could have been hired; and the charge of the court in this case, leaving it for the jury to determine whether the plaintiff could have taken the conveyance, is proper.</p>

<p>Banks and Banking — Cashier—Principal and Agent — Bills- and Notes — ite- - lease of Liability — Consideration—Ultra Vires Acts.</p> <p>There is no implied authority given to a cashier of a bank, by virtue of his office, to release, without consideration, one of the joint makers from his liability on a note given to the bank; and when it is shown that the cashier agreed that if one of the two makers of a partnership note paid a certain amount upon a well-secured note given by the other individually to the bank, such other maker would be released from all liability on the joint note sued on, the transaction is without consideration and the bank is not bound thereby.</p>

Appeal by defendant from Justice, J., at the April Term, 1915, of Columbus. Action to recover damages for injury to a carload of live stock skipped from Atlanta, Ga., to Mount Tabor, N. C., on tke line of tke defendant. Tkere was evidence on tke part of tke plaintiff tending to prove tkat tke stock was received in a damaged condition, wkiek resulted from tke negligence of tke defendant, and as to tke amount of tke damage.

<p>Appeal by defendants from order of Peebles, J., at chambers, 8 June, 1915, continuing a restraining order to the bearing.</p>

Appeal by defendant from Daniels, J., at the October Term, 1914, of SAMPSON. Civil action, to recover land, beard on denial of plaintiffs’ title.

<p>1. Municipal Corporations — Streets and Sidewalks — Discretionary Powers.</p> <p>' Streets are public highways in cities for travel by the public, and adjacent owners have no more rights in them than the public generally, except the right of ingress; egress, light and air and lateral support, it being within the discretionary power of the proper municipal authority to determine where and how the streets shall be improved, what part is required for travel of vehicles, and what part, if any, shall he divided off as a pavement for the sole use of pedestrians; and the courts can interfere with the exercise of this discretion only in case of fraud and oppression, constituting manifest abuse thereof.</p> <p>2. Same — Pedestrians—Adjoining Owner — Bights of Owner — Damages.</p> <p>The owner of a city lot surrounded by three streets and formed by them into a triangle sixty by sixty-seven and sixty-eight feet, brings action against the city for a mandamus to provide sidewalks around his lot, sidewalks across the street therefrom having been made by the city authorities. The municipal authorities had deliberated upon the matter and concluded that the public necessity and convenience did not require the sidewalks contended for hy plaintiff, and that such would make the streets too narrow and cause congestion of traffic therein; that the sidewalks across the street were sufficient, and to use those proposed, pedestrians would have to cross over the street for the purpose. Held, the exercise of the discretionary authority of the municipal authorities in refusing to establish the sidewalks contended for, is not reviewable by the courts, and no damages are recoverable in the action.</p> <p>3. Appeal and Error — Pleadings—Trials—Nonsuit,</p> <p>Where the complaint states no cause of action, a judgment of nonsuit may be entered in the Supreme Court.</p>

Appeal by propounders from Justice, J., at tbe April Term, 1915,' of - Columbus. Proceeding to caveat tbe will of Albert Mueller, Sr. Tbe caveators admitted tbat tbe alleged testator bad sufficient mental capacity to make a will, but alleged tbat tbe execution of tbe will was procured by undue influence. Tbe will was signed 14 December, 1913, and Albert Mueller died 21 December, 1913, of cancer of tbe liver.

<p>1. Estates — Remainderman—In Possession — Accounting—Rents and Profits— Promise to Pay — Reference—'Evidence—Conclusion of Law.</p> <p>While the life tenant, in the absence of a valid conveyance of the rents and profits, is ordinarily entitled to recover them from the remainderman when both live together upon the land, this does not apply between mother and son when they are living thereon, with the latter’s family, for a long term of years, the son taking full charge and management of the lands and supporting them all therefrom; and when the matter has been referred and the facts so found and approved by 'the trial judge, it is sufficient to sustain the conclusion of law, in the absence of a promise to pay on the part of the son, that he is not chargeable with the rents and profits.</p> <p>2. Estates — Remainderman in Possession — Rents and Profits — Burden of Proof. ■</p> <p>In an action to recover rents for the life estate in lands from the re-mainderman in possession, evidence of the value thereof for the time of such possession must he introduced hy the plaintiff in order for him to recover them.</p>

Appeal by defendants from Daniels, J., at the June Term, 1915, of Wake. Motion by defendants to remove this cause to the Superior Court of Cumberland, from Wake County. The court denied the motion and defendants appealed.

Appeal by defendant from Peebles, J., at the March Term, 1915, of IjENOIR. Action to recover damages for negligence in the transportation of a carload of lumber from Kinston, N. C., to Gloucester, N. J. The defendant moved for judgment of nonsuit at the conclusion of the evidence of the plaintiff and renewed the motion at the conclusion of the whole evidence. The motion was overruled and the defendant excepted.

<p>Appeal by plaintiff from Allen, J., at the July Term, 1915, of Gean--ville.</p>

<p>1. Master and Servant — Orders of Master — Negligence—Trials—Evidence— Insufficient Help — Questions for Jury.</p> <p>In an action against a foundry company to recover damages for a personal injury, when there is evidence that the plaintiff, an inexperienced helper, informed the head moldgr that the help he had for lifting a box weighing two thousand pounds was insufficient, and was told, in reply, to “Go ahead; the help is sufficient,” and in consequence thereof the box fell upon the plaintiff and injured him when thus being lifted, and there is further evidence that, in fact, the help was insufficient, it raises a question as to the actionable negligence of the defendant therein to be determined by the jury.</p> <p>2. Master and Servant — Coemployees—Contributory Negligence — Trials — Evidence — Nonsuit.</p> <p>In an action to recover damages for a personal injury caused by the defendant’s negligence in not providing sufficient help in lifting a two-thousand-pound box, and there is evidence to sustain the allegation, the burden of proof is on the defendant to show, when relied upon as a defense, that the injury was due to the plaintiff’s contributory negligence, or that of his colaborers; and where the defendant fails to introduce his evidence thereof, a judgment as of nonsuit should not be entered, the evidence introduced being viewéd in the light most favorable to the plaintiff.</p> <p>3. Master and Servant — Safe Appliances — negligence—Trials — Evidence — Proper Appliances — Instructions.</p> <p>Where there is evidence tending to show that the injury complained of, in an action to recover damages for personal injury, was caused by the negligence of the defendant in failing to furnish sufficient help to raise a box weighing two thousand pounds, the exclusion of testimony by the trial judge, that a crane accessible at the time was a proper way to handle the box, and his expression that the defendant was not required to keep up with the inventive genius of Edison or George Westinghouse, etc., constitute reversible error.</p>

<p>1. Wills — Probate—Relating Back — Judgment—Execution Sales — Innocent Purcliaser — Deeds and Conveyances — “Color”—limitation of Actions.</p> <p>Tbe principle that a proceeding to establish a last will is a proceeding in rem, and that when the will is established it relates back to the death of the deceased owner and vests the title to the property in his devisee, cannot operate to affect the title to lands acquired by an innocent purchaser for value without notice, who has acquired his deed under a judgment against the one under whom his adversary party claims title, and has been in possession of the lands for more than seven years under his; deed as color of title.</p> <p>2. Escheat — Judgments—Execution Sales — Deeds and Conveyances — laches —Innocent Persons — Equity.</p> <p>Where a judgment final has been obtained by default of an answer in the course and practice of the court and regular upon its face in favor of the University of North Carolina, by escheat, against the husband of the deceased owner of the land, who had died without issue born alive, and more than seven years thereafter the husband sets up a will in his favor from his deceased wife, and claims the lands thereunder from the grantee of a purchaser at the execution sale, who, with his grantor, have been in possession for more than seven years under their deeds, the will cannot relate back to the death of the testator as against the title of the purchasers, being free from laches, for where one of two innocent persons must suffer, the one who has not been guilty of laches will be protected.</p> <p>3. Same — Default—Estoppel.</p> <p>Where a judgment by default final has been rendered, for the want of an answer, in the course and practice of the courts in proceedings regular upon their face, in an action to recover lands, the complaint alleging that the plaintiff is the owner thereof, and no motion in the cause to have it set aside for excusable neglect has been made within twelve months and no independent action has been brought to set aside the judgment for fraud, it will estop the defendant from asserting any right he may have to the land.</p> <p>4. limitation of Actions — Heirs at law — Wilis—Devisees—Interpretation of Statutes.</p> <p>Revisal, sec. 369, suspending the statute of limitations during controversy over the probate of a will “when no administrator is appointed” applies only to protect creditors, there being no one for them to sue.</p> <p>Walker and Hoke, JJ., concur in the result.</p>

Appeal by plaintiff from Allen, J., at tbe November Term, 1914, of Columbus. Action upon three notes, aggregating $3,000, given for tbe'purchase ■of a German coach stallion. The notes were executed to J. Crouch & Son, and indorsed by them to the plaintiffs, who claim to be purchasers for value before maturity. The defendants allege that the notes were procured by fraud, and that the plaintiffs took the notes with notice.

<p>1. Carriers of Passengers — Street Railways — Crossties- — Rig-lit of Way— Negligence — Evidence.</p> <p>Crossties left on tbe right of way of a power transportation company wbicb bad been repairing its railway track afford no evidence of negligence in an action to recover damages of tbe company for a personal injury alleged to bave been inflicted in consequence thereof.</p> <p>2. Carriers of Passengers — Street Railways — Pedestrians—Crossing Track— Place of Safety — Contributors—-Negligence.</p> <p>Where a pedestrian using tbe track of a railway company is in a place of safety and seeing a rapidly moving car approach about fourteen feet away, and knowing tbe danger, attempts to cross tbe track and is injured, the rule requiring tbe employees on tbe car to give warnings of its approach has no application, and there being no evidence of tbe company’s negligence, the contributory negligence of tbe pedestrian bars bis recovery in an action for damages against tbe company.</p> <p>3. Carriers of Passengers — Street Railways — Contributory Negligence — Non-suit.</p> <p>Where it appears by tbe plaintiff’s own evidence, in bis action to recover damages for a personal injury he alleges to bave been inflicted on him by tbe defendant’s negligence, that tbe proximate cause of tbe injury was tbe contributory negligence of tbe plaintiff, a judgment as of non-suit thereon is proper.</p> <p>4. - Same — Children—Evidence.</p> <p>Tbe rule that tbe contributory negligence will bar tbe right of recovery of one who knowingly leaves a place of safety and attempts to cross a car track in tbe face of danger, and is injured by a rapidly moving street car, which be, at tbe time, saw about fourteen feet away, applies to children eleven years of age who are shown to bave been intelligent, were accustomed to ride on tbe cars and evidently appreciated tbe danger in taking such risks.</p>

Appeal by plaintiff from Justice, J., at the March Term, 1915, of New HaNOVeR. Civil action to recover back taxes by foreclosing lien on realty subject thereto.

Appeal by plaintiff from Allen, J., at the March Term, 1915, of ROBESON. Proceeding for the partition of thirty-five acres of land, the plaintiff alleging that it is the owner of a one-half undivided interest therein, and that the defendant Fannie Gault is the owner of the other one-half interest in said land.

Appeal by propounder from Justice, J., at tbe June Term, 1915, of EOCKINSHAM. Issue of devismit vel non, raised by a caveat to tbe will of Jane S. Eawlings, tried upon these issues submitted without objection: 1. Was tbe execution of tbe paper-writing purporting to be tbe last will and testament of Jane Spaulding Eawlings procured by tbe fraud and undue influence of John D. Huffines? Answer; Yes. 2.

Appeal by plaintiff from Coolce, J., at tbe April Term, 1915, of GRANVILLE. Caveat to a paper-writing offered for probate as tbe will of Josephus A. Peace, wbo died 9 March, 1915, aged eighty-eigbt years, tbe owner of eight hundred acres of land and certain personal property. Tbe deceased never married. After bis death four paper-writings were found folded together in a seed catalogue in bis desk, and all were in tbe bandwriting of tbe deceased.

Appeal by plaintiff from Coolce, J., at the February Term, 1915, of GRANVILLE. Civil action. At the conclusion of the evidence his Honor granted a motion to nonsuit, and the plaintiff appealed.

<p>Appeal by plaintiff from Justice, J., at tbe Spring Term, 1915, of Eoesyth.</p> <p>Action to recover damages for personal injury, caused, as tbe plaintiff alleges, by reason of tbe failure of tbe defendant, in whose employment tbe plaintiff was at work, to furnisb him a reasonably safe tool known as a pitching tool with wbicb to cut granite, this being tbe work at which be was engaged at tbe time of bis injury.</p> <p>At tbe conclusion of tbe evidence bis Honor entered judgment of nonsuit upon tbe ground that there was no evidence of negligence, and tbe plaintiff excepted and appealed.</p>

<p>1. Mechanics’ Liens — Married Women — Executory Contracts — Interpretation of Statutes.</p> <p>By chapter 106, Laws 1911, known as the Martin Act, a married woman may enter into an executory contract affecting her real and personal property, except with her husband, as if she were unmarried, and where she and her husband held the title to lands by entireties and they contract for materials used in a building thereon, those furnishing the material may acquire a lien on the property by complying with the provisions of the statute, Revisal, sec. 2016; ch. 617, Laws 1901.</p> <p>2. Lien for Material — -Estate by Entireties — Bey. 2016.</p> <p>When material for building is furnished to husband and wife jointly, to be used on realty held by entireties, the lien given by Rev., 2016, attaches.</p> <p>Note. The Court again suggests the repeal of estates by entireties.</p>

Appeal by plaintiff from Devin, J., at March Term, 1915, of Foestth. Civil action to recover on a policy of insurance. On a former trial of the cause, plaintiff recovered judgment, and defendant, having taken an appeal, a new trial was granted because of the admission of a letter of one Lucy Ragsdale, an agent, which was held to be hearsay and incompetent for reasons stated in the opinion of the Court, reported in 167 N. 0., 262.

Appeal by plaintiff from Coolee, J., at tbe May Term, 1915, of ALAMANCE. Action to recover damages, tbe plaintiff alleging a cause of action in slander in tbat tbe defendant charged bim witb tbe crime of false pretense, and another cause of action for malicious prosecution in procuring and prosecuting a criminal warrant, charging the defendant witb false pretense.

Appeal by defendant from Olin&, J., at chambers, in WiNstoN-Salem. Action instituted by the plaintiffs, abutting landowners, on a public highway leading from Leaksville-Spray to Reidsville. The defendants, the county commissioners and the superintendent of roads of Rocking-ham County, are undertaking in their official capacity to permanently improve said road by topsoiling.

<p>• Appeal by defendant from Coolce, J., at January Term, 1915, of Durham.</p> <p>Civil action brought to recover damages for personal injury. His Honor at the close of the evidence sustained a motion to nonsuit, from which judgment the defendants appealed.</p> <p>It is admitted upon the argument in the Supreme Court that the motion to nonsuit as to the defendant Interstate Telephone and Telegraph Company was properly allowed, and as to that defendant the judgment of nonsuit is affirmed.</p>

Appeal by plaintiff from Devin, J., at tbe May Term, 1914, of Fou-SYTH. Civil action tried upon certain issues, of wbicb tbe following was tbe first: 1. Was tbe property of tbe plaintiffs described in tbe complaint set on fire and burned by sparks of tbe defendant’s engine, as alleged in tbe complaint? Answer: No. From tbe judgment dismissing tbe action, tbe plaintiff appealed.

Appeal by plaintiff from Bountree, J., at the May Term, 1915, of New HaNoveb. Civil action. During the progress of the trial the court excluded certain evidence offered by the plaintiff, whereupon the plaintiff duly excepted and, in deference to the ruling of the court, submitted to a non-suit and appealed.

Appeal by defendants from Allen, J., at February Term, 1915, of BobesoN. Civil action tried upon certain issues submitted to the jury, as follows: 1. Was it agreed between Hector Currie and C. A. Shook, at the time the deed to Shook was delivered, that the timber and rights theretofore conveyed to J. M. Love & Co. under the timber deed made to' them should be excepted? 2. Was said clause omitted from deed by mutual mistake of tbe parties to said deed? 3.

<p>1. Deeds and Conveyances — Husband’s Deed — Homestead—Dower—Joinder of Wife»</p> <p>Where a husband conveys his land without having his wife join in the deed, the grantee acquires the land free from the right of the wife to a homestead, unless the same has been laid off therein to 'the husband (Const., Art. X, sec. 8; Revisal, sec. 686), but subject to the wife’s right of dower, should she survive him.</p> <p>2. Same — Contracts—-Value of Dower — Trials—Questions for Jury — Judgments.</p> <p>Where a husband has contracted to convey his lands for a certain consideration, and he has failed of performance thereof by reason of the refusal of his wife to execute the deed with him, and the purchaser seeks in his action to enforce the performance of the contract, diminished by the wife’s interest in the lands, it is proper that the question of the value of this interest be left to the jury and the purchase price accordingly diminished; and as this interest is only the value of her inchoate right of dower, it is reversible error for the trial judge to exclude from the consideration of the jury the value of this inchoate right and substitute the value of the homestead right, when the homestead has not been laid off to the husband, and there is no lien by judgment on the lands.</p> <p>3. Same — Mortgages.</p> <p>Where there is a mortgage on the lands of the husband executed properly by both husband and wife, and there is also a lien by judgment thereon, and the husband has contracted to sell these lands free from encumbrances and pay off the judgment out of the purchase money: Held, the execution of the mortgage by the wife releases both her homestead and right of dower to the mortgagee, and as the lien of the judgment has been agreed to be paid out of the purchase money, the purchaser is entitled to judgment that these liens be paid out of the purchase price and the lands be conveyed subject to the wife’s inchoate right of dower, the value of which to be ascertained by a jury and deducted from the purchase price.</p> <p>4. Deeds and Conveyances — Husband’s Deed — Mortgagee—Contracts—Dower —Tender—Payment into Conrt — Judgments.</p> <p>Where the husband has agreed to convey his lands free from encumbrances for a certain price, and there are liens by mortgage thereon, and his wife has refused to join in the conveyance, it is not required that the purchaser, in his action for specific performance, pay the sum agreed upon into court; for it is a sufficient tender when he alleges in his complaint that he was ready, willing and able to do so upon his getting the title for which he had contracted.</p>

<p>Municipal Corporations — Paving—Assessments—Legislative Authority — Tote of People.</p> <p>A municipal corporation may assess tbe owners of property along tbe street for paving tbe street, under legislative authority, without submitting tbe question to a vote of the town. Upon tbe question of notice, estoppel, and injunction, see Marion v. Pilot Mountain, post, 118.</p>

<p>Appeal by defendants from Whedbee, J., at April Term, 1915, of TYRRELL.</p>

<p>Appeal by plaintiff from Cline, J., at August Term, 1915, of Suejry.</p>

<p>1. Husband and Wife — Estates by Entireties — Creditors—Erand.</p> <p>Where a conveyance of lands is made to the husband and wife in en-tireties, expressing a valuable consideration, it will not be set aside at the suit of the husband’s trustee in bankruptcy, alleging it was purchased with the money of the husband, while insolvent, for the purpose of defrauding his creditors in having it conveyed to him and his wife, there being no evidence of the insolvency or fraud of the husband at the time of the deed, and evidence that he was then indebted to his wife.</p> <p>2. Same — Retaining Property — Interpretation of Statutes.</p> <p>A conveyance of lands to husband and wife by entireties which was paid for by the husband will not be considered as fraudulent with respect to his creditors, when he retained property amply sufficient to pay them at the time of the deed. Revisal, sec. 962.</p>

<p>Appeal by plaintiffs from Justice, J., at January Term, 1915, of PASQUOTANK.</p> <p>Action for tbe alleged conversion of certain personal property, i. one skidder and two trucks or log cars. C. L. & E. L. Hinton sold and delivered to tbe Camden Timber Company said skidder, four trucks and some miles of railroad iron, under a written agreement, 21 June, 1912, “to be paid for about one-tbird casb, balance note, title to remain witb vendor till all tbe note is paid in full.” Three hundred dollars was paid in casb. This agreement was not recorded till 30 August, 1913, over fourteen months after date. In accordance witb tbe agreement tbe Camden Timber Company executed two notes, one for $278.60 and one for $1,000, both dated 15 November, 1912, and due three and six months after date. On 8 July, 1913, tbe Camden Timber Company filed its petition in bankruptcy, including in its list of creditors bold-ing securities, tbe following: “C. L. & E. L. Hinton, South Mills, N. C., two notes, $278 and $1,000, secured by contract reserving title, for mill equipment and railroad track.”</p> <p>The Timber Company was adjudged a bankrupt and Ebringbaus and Spence were appointed trustees. On 16 August, 1913, these trustees filed a petition asking that tbey be empowered to sell all tbe property of the bankrupt, specifying among such property “a locomotive, a lot of rail, two skidding machines and other property,” On that date the bankrupt court granted the order of sale, directing the property to be sold on Monday, 1 September, 1913. The agreement between the Timber Company and plaintiff was not recorded till after such order, to wit, on 30 August, 1913. The sales were reported to the court and confirmed 23 September, 1913, and the trustees delivered this property to the purchaser. This action was brought to recover its value of the purchaser.</p>

Appeal by defendants from Justice, J., at chambers in Winston, April, 1915; from Sueby. By virtue of chapter 337, Laws 1913, Pilot Mountain was authorized to issue bonds.

Appeal by defendants from Cooke, J9 February, 1915, from G-RAN-VILLE. Civil action to obtain a mandamus on defendant board, compelling tbem to “endorse and approve” a petition to the board of commissioners of Granville County, that they order an election on the question of the annulment of a special school tax district in said county and known as “Stovall Special Tax District, No. 2,” heard on demurrer.

Appeal by defendant from Daniels, J., at June Term, 1915, of Wake. Action to recover damages for personal injury caused, as tbe plaintiff alleges, by tbe negligence of tbe defendant.. Tbe original complaint is as follows: 1. Tbat be is, and at tbe times hereinafter mentioned was, a resident of Wake County, North Carolina. 2.

Appeal by defendant from Lyon, J., at June Term, 1915, of Guileoed. Civil action. There was motion to remove, which was overruled. Also .judgment for plaintiff by default for want of answer’. Defendant appealed.

Appeal by caveators from Rountree, J., at April Term, 1915, of SuRRT. Proceeding to caveat a will upon tbe ground: 1. That tbe paper-writing offered for probate was not executed as-required by tbe statute in that tbe subscribing witnesses did not attest it in tbe presence of tbe testator. 2. For that tbe testator did not have sufficient mental capacity to-enable bim to make a will. 3. For that tbe execution of tbe will was procured by undue influence..

Appeal by defendant A. S. McRae from Devin, J., at April Term, 1915, of StaNly. Action brought against tbe defendants E. M. Asbury & Co., C. J. Mauney, C. W. Andrews, F. V. Watkins and A. S. McRae for tbe recovery of $310.30, with, interest from 1 October, 1909.

Appeal by plaintiff from Carter, J., at tbe July Term, 1915, of STANLY. Proceeding for tbe partition, of land, tbe petitioners claiming to be tbe owners of two-tbirds thereof and that tbe defendants together are tbe owners of tbe other one-third. Tbe defendants deny that tbe petitioners own any interest in tbe land and contend that they own,tbe same in fee.

Appeal by plaintiff from Lyon, J., at tbe April Term, 1915, of Guileokd. Civil action tried upon these issues: 1. Did tbe defendant place bis signature upon tbe notes sued on as original promisor and not as indorser? Answer: Yes. 2. Were tbe notes sued on properly and legally presented for payment? Answer: N>. 3. Was notice of dishonor and nonpayment given to defendant, as required by law? Answer: Yes. 4. Was presentment for payment waived on tbe part of tbe defendant?

Appeal by defendant from Lyon, J., at the April Term, 1915, of Guilpoed. Civil action tried upon these issues; 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No. 3. Did tbe plaintiff assume tie dangers and risks, as alleged in tie answer? Answer: No. 4. What damages, if any, is plaintiff entitled ■ to recover ?

Appeal by plaintiffs from Lyon, J., at chambers, 12 April, 1915; from GrUiLFORD. Civil action, beard upon a motion to continue a restraining order theretofore issued until the final hearing. His Honor dissolved the restraining order and-the plaintiffs appealed.

Appeal by defendant from Shaw, J., at September Term, 1915, of GrUILFORD. Civil action to recover land. From the judgment rendered the plaintiffs and the defendant Causey appealed.

<p>Appeal by plaintiff from Justice, J., at September Term, 1915, of Guileokd.</p> <p>Civil action for tbe construction of tbe last will and testament of Emma J. Simmons, deceased, and for tbe advice of tbe court in regard thereto, tried upon facts agreed. From tbe judgment rendered tbe plaintiff appealed.</p>

Appeal by defendant from Lyon, J., at January Term, 1915, of Guilford. Civil action tried upon these issues: 1. Was the death of plaintiff’s intestate caused by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. What damage, if any, is plaintiff entitled to recover? Answer: $1,000. From the judgment rendered defendant appealed.

Appeal by defendant from Lyon, J., at May Term, 1915, of Davidsobl Civil action to recover an amount alleged to be due for clearing off a railroad right of way. The jury rendered the following verdict: 1.

Appeal by defendant from Webb, J., at September Term, 1915, of MECKLENBURG. Civil action to recover damages for personal injuries caused by the alleged negligence of the defendant company. On the ordinary issues, in demands of this character, as to negligence, contributory negligence and damages, there was verdict for plaintiff. Judgment on the verdict and defendant appealed, assigning for error chiefly the refusal of the court to enter judgment of nonsuit.

<p>Appeal by defendants from Lane, J., at March Term, 1915, of Meok-LENBURG.</p>

Appeal by defendant from Devin, J., at chambers in Albemaele, on 14 May, 1914. Civil action beard on motion by defendant to dissolve a .temporary restraining order. ■ Tbe action was instituted by Sarab 0.

<p>Appeal by defendant from Lyon, J., at February Term, 1915, of GrUILEOBD.</p> <p>Civil action. Tbe plaintiff sued for damages for personal injury sustained while working in tbe factory of tbe defendant at High Point, N. C., on 19 May, 1914, when plaintiff suffered a fracture of both bones in bis right forearm. He alleged that at tbe time of tbe injury be was engaged in operating a belt sander, and properly described it as consisting of a table or bed at each end of which was a pulley, around which ran a sand-belt, which is a belt with one sicle sanded for the purpose of polishing material. The course of the belt, in one direction, is over the top of the bed and lengthwise thereof, and on its return it moves under the table. The bed is movable both up and down, and back and forward across the line of the belt. The operation of the machine consists in placing the board or other material to be sanded on the bed, and then, after raising the bed to a proper height, pressing the sanded or underside of the belt down upon the material by means of a wooden weight in the shape of a flat-iron applied on the top of the belt. In order to cover the full surface of the material to be sanded the table is, during the operation, moved backwards and forwards across the line of the belt. The machine at which plaintiff was working had a wooden strip of about the thickness of the material under treatment nailed across the bed at right angles to the line of the belt, and near the end of the belt, toward which the belt tended to draw the material. This was placed there to resist the tendency of the belt to draw forward with it the material being sanded. In the side of this strip, and next to the material, were sharp iron points about an inch apart, protruding therefrom and parallel to the bed of the machine, thus forming a cleat, for the purpose of taking hold of the material when pushed against it and preventing it from rising above the cleat and being pulled forward in the direction of the belt. The pieces which the plaintiff was sanding at the time of his injury were quartered oak bed panels, 22 inches .wide, about 4 feet long and a quarter of an inch' thick. The plaintiff charges the defendant with negligence in two particulars:</p> <p>First. In failing to “equip this machine or sander with the iron cleat of the character hereinbefore set out,” which the plaintiff alleged was in known, approved, and general use; and,</p> <p>Second. In furnishing to the plaintiff and requiring him to work upon the said machine panels, which were more or less warped and twisted and liable to escape from the fastenings.</p> <p>The defendant admitted that the machine was not equipped with the iron cleat described, but denied that the said iron cleat was in known, approved, or general use, or that its use would be juacticable on the machine in question, or that it would render said machine any safer, and alleged .that the wooden cleat furnished served the same purpose as alleged in respect of the iron cleat, was just as safe, and was better adapted for sanders for .thin material where the use of the iron cleat was not practicable. The defendant denied, according to its knowledge, having furnished to the plaintiff, for his use in operating .the machine and doing his work, warped and twisted panels, and alleged that it was a part of plaintiff’s duty to select from the panels furnished him en masse such as were warped or twisted and lay them aside to be sanded by hand. The defendant averred that if the plaintiff was injured because of a warped or twisted panel such injury was the result of his own negligence in attempting, contrary to instructions, to sand such panel on the machine, and pleaded assumption of risk and contributory negligence.</p> <p>So far we have taken our statement substantially from the brief of defendant’s counsel, which we think, from a careful examination of the record, is perfectly correct in the main, but as there is some disagreement between counsel of the respective parties as to what is the particular act of negligence charged against defendant and as to the true nature and construction of the “sander,” we will make some extracts from the plaintiff’s complaint, for he contends that he has alleged, as specific acts of negligence, apart from the absence of a metal cleat, that the wooden cleat was itself an improper and insufficient appliance for the safe and effective operation of the machine, and that this is especially so if the planks or boards being dressed are bent or warped. These are his allegations expressed almost in his own language:</p> <p>1. The defendant, in operating its factory, used numerous and various kinds of machines and machinery, including a belt sanding machine, in its said factory at High Point, all of which were propelled by steam power, involving the use of shafting, pulleys, belts, and other appliances.</p> <p>2. There is much danger attending the operation of many of said machines, including the sanding machine, which the plaintiff, on the occasion of his injury, hereinafter more fully set out, was operating, all of wbicb was known to tbe defendant at tbe time of tbe employment of tbis plaintiff and on tbe occasion of bis injury.</p> <p>3. Plaintiff, on 19 May, 1914, was, and for some time prior thereto bad been, in tbe employ of tbe defendant, Tate Furniture- Company, and on said date was engaged in tbe regular performance of bis duties, in tbe operation of a sanding machine, wbicb required him to sand or dress, by having tbe sand belt pass over and upon pieces of plank ordinarily known as “bead-board” or “foot-board” panels for beds, they being about twenty-two (22) inches in width and four (4) feet in length, and one-fourth to one-balf inch in thickness.</p> <p>4. Tbe sanding machine, if fully and properly equipped, consisted in part of two pulleys, one at either end of tbe machine, wbicb are about six feet apart, and have under them tbe necessary supports, and over and around these pulleys passes a sand belt, or sanded belt, on horizontal lines, at approximately five hundred revolutions per minute. Tbe belt is made of heavy canvas, smooth on one side, and sanded on tbe other side. Under tbe upper side of tbe belt, as it revolves around tbe pulleys, there is a table about six feet in length and eighteen or twenty inches in width, having a number of slats, with small or narrow spaces between them.</p> <p>5. In sanding lumber or timber upon tbis machine it is necessary to lay tbe board upon tbe table, with tbe face to be dressed upwards and approximately within one inch of the sand belt. That in order to bring tbe belt and tbe timber in touch with each other, and to produce tbe necessary friction for dressing or sanding tbe board, tbe plaintiff was using on tbe occasion in question, as was usual and necessary and as required by defendant, a block weighing some eight pounds, which tbe plaintiff placed upon tbe top of tbe sand belt, and with bis right band and arm pressed tbe same down upon said belt, at tbe same time giving it a forward and backward movement, thus bringing tbe belt in contact with tbe timber for tbe full length thereof, and in tbis way tbe plank was sanded or dressed.</p> <p>6. A sander, of tbe character just hereinbefore described, when complete, has an iron cleat across tbe table, with bolts passing through it and also through tbe slots or spaces between the strips of the table and fastening on tbe underside thereof, tbis being made stationary, subject, however, to be moved and adjusted to suit tbe length and character of tbe timber being dressed or 'sanded. One edge of tbe cleat or strip of iron fastened across tbe table is finished with teeth somewhat like a saw.</p> <p>7. In operating tbe machine tbe plank is placed upon the table with one end against tbe cleat, and with such force as to imbed tbe teeth of tbe cleat into it, and thereby secure it so as to prevent it from being drawn by force of tbe friction with tbe sand belt, while the latter is in motion over tbe pulleys.</p> <p>8. The cleat, or piece of iron above described, is, and was at that time, a necessary part of tbe sander, and was then and theretofore known, approved, and in general use, though plaintiff was ignorant of the fact at that time, and does, in fact, make the operation of the machine safe to the operator; and no sander of the character described is complete or safe without the metal cleat.</p> <p>9. The sanding machine of the defendant, which the plaintiff was operating at the time of his injury, had no such cleat or device, but was provided with a thin strip of wood, or timber, nailed to and upon the top of said table in such manner as that the same could be easily removed from time to time without injury to the table.</p> <p>10. That on the occasion of the injury to the plaintiff, hereinafter more fully described, and in consequence of the absence and lack of said iron cleat constructed and provided as aforesaid, the plank upon which the plaintiff was engaged at work, by force and operation of the sand belt, was driven and hurled upon one of the pulleys of said machine and rebounded with great force, and in the rebound hit the pressing block, then in the plaintiff’s hand, and thereby broke both bones in the plaintiff’s forearm, whereby he was caused to suffer great pain for many days, and was permanently injured in his said right forearm; such injury having the effect to greatly impair the strength and usefulness of said arm and hand and disable the plaintiff from closing his right hand, all to his great damage.</p> <p>11. The defendant knew that this machine was not, on the day of the injury, equipped with an iron cleat, as described, but only with a flimsy, weak, and insufficient piece of timber, not secure in character, and not adapted to the use to which it was being put, and that the risk to the plaintiff was increased by reason of the absence of an iron cleat of the character hereinbefore described.</p> <p>12. The plaintiff was required by the defendant to work at this machine at a time when defendant knew that it was defective and was not equipped with an iron cleat of the character hereinbefore described.</p> <p>13. On 19 May, 1914, plaintiff was performing his duty in the operation of said machine when defendant required the plaintiff to work upon and sand boards which were more or less warped and twisted, thereby increasing the plaintiff’s risk of injury and damage, as the effect of such warping and twisting was to make said timber more difficult to confine to the table of the sander, and especially was it.more difficult to do so by reason of the absence of the iron cleat as described, and of all this the defendant had knowledge.</p> <p>14. It was a positive wrong and negligence on the part of defendant to furnish boards, or material, in any way warped and twisted and to require plaintiff to dress the same, especially on a sand machine so ■defective as hereinbefore described, all of which tended to and did, in fact, increase the risk and cause the injury and damage herein described to the plaintiff.</p> <p>15. The failure of defendant to equip the sander with the iron cleat and to furnish to and require the plaintiff to work upon and dress boards or panels warped and twisted on said machine or sander was negligence on the part of the defendant and a positive wrong to this plaintiff, which caused the injury to him.</p> <p>The above allegations taken from the complaint are flatly denied by the defendant, in its answer, and the injury to the plaintiff is therein imputed to his own want of proper care in the selection of boards to be dressed or sanded, sound material having been provided for this purpose, with positive instructions to use it only. There was considerable evidence offered by the parties tending to sustain their respective contentions, but we need only refer to it in this manner without setting it out, as brief, but sufficient reference will be made to it in the opinion. There was no objection to the issues which the court submitted to the jury, and upon which they returned the following verdict:</p> <p>1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.</p> <p>2. Did the plaintiff voluntarily assume the risk and danger of being injured in the manner in which he was injured as an incident of his employment? Answer: No.</p> <p>3. Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No.</p> <p>4. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $1,500.</p>

Appeal by plaintiffs from Peebles, J., at March. Term, 1915, of LENOIR. • Civil action. The action was to recover damages to live stock, alleged to have been negligently injured in shipment over defendant roads, in March, 1912. Defendants denied liability. The evidence having been submitted, on motion, there was judgment of nonsuit as to •each and all of defendants, and plaintiffs excepted and appealed.

Appeal by plaintiff from order of Bond, J., beard at chambers on 18 October, 1915; from GkeeNK Controversy without action to determine title to land, submitted to the Court, under Revisal, sec. 803, for its decision and judgment.

Appeal by defendant from Cline, J., at June Term, 1915, of Fobsyth.. Civil action tried before Hon. II.

Appeal by defendant from Lane, 3., at March Term, 1915, of Meck-leNbueg. Civil action tried upon these issues: 1. Is the plaintiff the owner of the lands described in the complaint ? Answer: Yes. 2.

Appeal by defendant from Allen, J., at April Term, 1915, of Hoke. Civil action. The case was before ns at a former term, and is reported in 165 N. C., at p. 512. We then ordered a new trial. At the last trial the case was submitted to the jury upon issues which were answered by the jury as follows: 1.

Appeal by defendant from Allen, J., at April Term, 1915, of Oum-BERLAND. Action for tbe recovery of damages for personal injuries, alleged to have been caused by the negligence of the defendant.

<p>Appeal by plaintiffs from Gime, at September Term, 1915, of Forsyth.</p> <p>Civil action to recover on an account for goods sold and delivered, brought before a justice of tbe peace, wbo beard tbe same, upon tbe issue of indebtedness raised by the parties, and gave judgment in favor of tbe plaintiff for $63.19, with interest and costs. Defendants appealed. In tbe magistrate’s court they bad answered to tbe merits, ■denying tbe indebtedness, and, as stated, tbe case was tried on this issue. In the Superior Court, as tbe record states, tbe defendants, without withdrawing their answer by leave of tbe court first obtained, filed a demurrer to tbe effect that tbe plaintiff’s name is not set out in tbe process and complaint (but only a firm name), and, therefore, -there is no plaintiff before tbe court. Tbe judge sustained tbe demurrer and dismissed tbe action because, as be said, be bad no discretion in tbe matter, believing from tbe syllabus in Heath v. Morgan, 117 N. C., 504, that tbe objection could be raised, as upon demurrer, notwithstanding tbe answer, or by a motion to dismiss. Judgment dismissing tbe action was thereupon entered, and plaintiff appealed.</p>

Appeal by plaintiff from Lyon, J., at June Term, 1915, of Guil-PORD. Civil action tried upon these issues: 1. Did the defendant E. 0. Rogers procure from the plaintiff, J. E. Latham Company, the acceptance and payment of the draft described in the complaint by falsely and fraudulently representing by his invoices the grades of the cotton covered by said invoices, and paid for by said drafts? Answer; Yes. 2.

Appeal by defendant from Allen, J., at April Term, 1915, of Hoke. Civil action tried upon a waiver of trial by jury.

<p>Appeal by plaintiffs, from Justice, J., at November Term, 1915, of CLEVELAND.</p>

Appeal by defendant from Connor, J., at March Term, 1915, of Pitt. Civil action, brought by George H. Brown, administrator of F. B. Satterthwaite, to enforce two certain judgment liens against the land set apart to J. J. Perkins as a homestead; one part of which was sold by J. J. Perkins to Lucy G. Bernard, from whom it descended, to the defendants Bernards, and the remaining part was afterwards sold by the homesteader to his son, W. W. Perkins.

Appeal by defendants from Lane, J., at March Term, 1915, of Meck-LENBTOG. Action to recover damages on account of .injuries alleged to have been sustained in the construction of a ditch or trench by reason of the negligence of the defendants. The plaintiff was employed by Sullivan, Long & Hagerty, partners, who are defendants, who were under contract with the city of Charlotte, also a defendant, in the construction of sewer ditches.

<p>Appeal by defendants from Shaw, J., at April Term, 1915, of MoNt-gomery.</p> <p>Civil action beard on demurrer.</p> <p>Plaintiff alleges in tbe complaint tbat on 1 August, 1866, James Crump, by deed duly executed and registered, conveyed to it, but by tbe name of tbe Troy (N. Y.) and North Carolina Gold Mining Company, four tracts of land in Montgomery County, this State, wbicb are fully described in tbe deed wbicb was made to Charles Eddie and eight others, trustees of tbe Troy (N. Y.) and North Carolina Gold Mining Company, as appears by tbe premises of the deed, and in tbe habenduon as follows: “To - have and to bold tbe above described tracts of land to them, the above mentioned trustees, their heirs and assigns forever.” It is further alleged tbat tbe name of tbe company, as it appears in the deed, was inserted by inadvertence and tbe mutual mistake of tbe parties and tbe draftsman of tbe deed, and it was intended to stand for and be tbe name of tbe plaintiff, and should be considered as such, as at tbe time there was no corporation having tbe name of tbe Troy (N. Y.) and North Carolina Gold Mining Company, tbe only company having a name at all like tbat one being tbe plaintiff in tbis action, and tbat it was tbe intention of the parties to tbe deed to convey tbe land to said trustees to be held by them for tbis plaintiff, and they acted as such for plaintiff in taking tbe deed, and if said intention is not fairly expressed in said deed, tbe statement thereof was omitted by tbe mutual mistake of the parties. It is also alleged tbat tbe trustees are all dead and their heirs or devisees are unknown to tbe plaintiff, except four of them, who have been made parties as defendants to tbis action, and those who are unknown have been brought in by publication, and still others who reside in tbis State have been personally served with process. The plaintiff alleges tbat the legal effect of tbe deed is to vest tbe title to tbe land in tbe plaintiff, but if this is not so, plaintiff is entitled to have new trustees appointed and a conveyance of tbe legal title ordered by the court. It is further alleged that defendants are in possession of tbe land and unlawfully withhold tbe same from tbe plaintiff and have wrongfully cut valuable timber therefrom, to plaintiff’s damage, and it prays for general and special relief.</p> <p>Defendant demurred upon tbe following grounds:</p> <p>1. That tbe heirs and devisees of the trustees, who are dead, have not been made parties to tbe action.</p> <p>2. That tbe land is conveyed by tbe deed to certain persons, as trustees, • and their heirs and devisees, and there is no allegation that this was done by inadvertence or mistake, and, therefore, it appears tbat plaintiff has no interest in the land.</p> <p>3. That the grantees named in the deed are all dead, and no new trustees have been appointed to act in place of them.</p> <p>4. It appears that this action was brought many years after the execution of the deed, for a correction thereof, by converting the persons named therein as grantees into trustees for the plaintiff, notwithstanding that said grantees are dead and their heirs and devisees have not been made parties.</p> <p>5. That the .complaint fails to state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendants who have been made parties to this action.</p> <p>6. That there is a defect of parties in that it appears that the grantees named in said deed are dead and their heirs or devisees’ have not been made parties to the action.</p> <p>The court overruled the demurrer and allowed defendants to answer, and they appealed from the order of the court overruling their demurrer.</p>

Appeal by defendant from Devin, J., at May Term, 1915, of UNION. Civil action tried upon tbis issue: 1. Did the defendant, at the time it received the check or shoes, or both, have reasonable cause to believe that it was intended thereby to give a preference? Answer: As to the $100 cash payment, No. As to the $582, Yes. From the judgment rendered defendant appealed.

Appeal by defendant from Webb, J., at September Term, 1915, of MeokleNbtog. Action to recover damages for the wrongful death of the plaintiff’s intestate, caused, as the plaintiff alleges, by the negligence of the defendant. The defendant denies that it was guilty of negligence and pleads that the death of the intestate was caused by her own contributory negligence.

Appeal by defendant from Daniels, J., at May Term, 1915, of Wake. Tbe plaintiff, G. M. Glenn, brought two suits against tbe Southern Express Company, one for the value of one quart of whiskey and damages for refusal to deliver same, and the other for a mandamus to compel the Southern Express Company to accept at Richmond, Va., a shipment consigned to the plaintiff at Raleigh, North Carolina, containing one gallon of whiskey.

Appeal by defendant from Lyon, Jat February Term, 1915, of DAVIDSON. Civil action. Plaintiff sued for breach of contract by defendant in failing to ship 36 buggies. The case was here at Fall Term, 1914, and is reported in 167 N. 0., 423.

Appeal by defendant from Bountree, J., at May Term, 1915, of New HaNOVER. Civil action.

<p>Courts — Wills—Advice—Appeal and Error.</p> <p>The courts will not entertain jurisdiction to construe a will merely to advise the parties as to the interests they will tahe thereunder. Littleton v. Thorne, 93 N. C., 71, cited and applied.*</p>

Appeal by plaintiff from Lyon, J., at March Term, 1915, of Guil-ford. Civil action.

Appeal by plaintiff from Justice, J., at September Term, 1915, of GrDTLFORD. This action was brought by the county to remove an alleged cloud upon title on that portion of the courthouse square which was acquired in 1873 from Porter, Caldwell, G-orrell, Hinton and Staples. The case was before us, Guilford v. Porter, 167 N. 0., 366. To the judgment entered on tbe opinion from this Court the plaintiff excepted and appealed.

Appeal by defendant from Justice, J., at June Term, 1915, of Rock-INGHAM. Civil action. Tbe four actions were originally brought in a justice’s court on notes given by tbe defendant for a 20-horse-power oil engine No. 132538. Tbe notes were dated 9 June, 1914: one for $150, due 1 August, 1914; another for $128.29, due 1 September, 1914, and two for $100 each, due respectively on 1 October, 1914, and 1 November, 1914, and bearing 6 per cent interest from date.

Appeal by defendant from Adams, J., at May Term, 1915, of Caldwell. ' Action to recover assessments levied against tbe defendants' in Lower Creek Drainage District in Burke and Caldwell counties. Tbe district was organized under cb. 96, Public Laws 1909, and it is provided therein tbat tbe collector shall collect tbe assessments by civil action, with tbe right of appeal to tbe Superior Court, if tbe action is instituted before a justice of tbe peace.

Appeal by plaintiff from Shaw, J., at April Term, 1915, of Cababrus. Proceeding instituted before the board of commissioners of Cabarrus County in reference to a change of location in a public road, known as the Salisbury road, heard on appeal from the order of commissioners therein to the Superior Court, and on motion to dissolve a preliminary restraining order. There was judgment dissolving the restraining order, and plaintiffs, having duly excepted, appealed to this Court.

Appeal by plaintiff from Harding, J., at August Term, 1915, of BlTTHEREORD. Civil action. Tbis action was brought to recover damages for the willful and wrongful burning of tbe plaintiff’s ginbouse, flour mill, dwelling-house and stock of merchandise. The jury returned a verdict in favor of the defendants, and from the judgment thereon plaintiff appealed.

<p>Bills and Jiotes — Indorsements—Holder in Due Course — Prima Facie Case— Purchaser for Value — Burden of Proof — Appeal and Error.</p> <p>Where there is neither allegation, nor proof that the title to a negotiable instrument is defective (Revisal, secs. 2208, 2204), the holder thereof by indorsement is only required to prove the indorsement for him to be deemed prima faoie a holder in due course (Revisal, sec. 2208); that is, he is prima facie a purchaser in good faith for value, before maturity, and without notice of any infirmity in the instrument, or of any defect in the title of the person negotiating it; and where such holder has shown such indorsement of the instrument sued on it is reversible error for the trial judge to charge the jury that the burden of proof is on him to prove by his evidence, other than by the presumption, that he had paid value for the instrument.</p>

<p>Appeal bj plaintiff from Whedbee, J., at February Term, 1915, of Columbus.</p> <p>Civil action.</p>

<p>Appeal by defendant from Adams, J., at July Term, 1915, of Avery.</p> <p>Civil action tried before a justice of tbe peace and carried to tbe Superior Court of Avery County, by appeal of tbe feme defendant from tbe denial of a motion by her to set aside tbe judgment of tbe justice, and beard in tbe latter court.</p>

Appeal by plaintiff from Devin, J., at May Term, 1915, of RICHMOND. Civil action. The action was to recover the sum of $35 0, which plaintiff alleged that defendant had wrongfully retained as commissions and attorney’s fees on a collection of $2,990.28, paid into office on a judgment in plaintiff’s favor against John and D. M. Morrison. Defendant contended that said amount was a legitimate charge for services as attorney and that nothing was due plaintiff.

<p>1. Contracts, Written — Deeds and Conveyances — Parol Evidence — Statute of Frauds.</p> <p>A grantor, 84 years of age at the time, executed a conveyance of his land to his daughter, then living with him with her son, the deed being in fee and in the usual form, with a recited consideration and covenants and warranty of title. In this action to set aside the deed there was no allegation or proof of undue influence or fraud, but that grantor was tired of the presence of the son and made the conveyance as a device to get'rid of him: Held, evidence of declarations made by the grantor two weeks before the execution of the deed, and made by him without reference to it, that he wanted to get rid of his grandson, was properly excluded, as a contradiction of the written instrument.</p> <p>2. Appeal and Error — Exceptions—Briefs.</p> <p>Exceptions not mentioned in the appellant’s brief are taken as abandoned. Rule 34.</p> <p>3. Contracts, Written — Parol Evidence — Declarations—Statute of Frauds.</p> <p>Evidence of declarations of a grantor in a deed to lands, made after its execution, to show that he only intended the deed as a device to rid him of the presence of his grandson, and that he would get the deed back, is incompetent as an attempt to contradict the written instrument by parol.</p> <p>4. Evidence — Silence—Quasi Admissions.</p> <p>The silence of the grantee in a deed upon information given him concerning the purposes of the deed as stated by the grantor after he had executed it is not a quasi admission of the facts stated, the one stating them being a witness for the party seeking in his suit to declare the deed inoperative.</p> <p>5. Deeds and Conveyances — Grantor in Passion — Evidence—Permissive User.</p> <p>Where a grantor of lands remains in possession after executing the deed, paying taxes thereon and listing the lands in his own name, and paying no rent, it is held that, in the absence of evidence of a parol trust, or of fraud or undue influence, such possession was not inconsistent with a permissive occupancy of the property by the grantee, and, under the circumstances of this case, it afforded no evidence that the deed was invalid.</p> <p>6. Trusts and Trustees — Grantor—Parol Trusts — Evidence—Statute of Frauds.</p> <p>A grantor of a fee-simple title in lands cannot engraft upon that title a parol trust in the lands in his own favor, for such is a contradiction of the writing by parol inhibited by the statute of frauds.</p> <p>7. Evidence — Deeds and Conveyances — Consideration—Parol Evidence.</p> <p>The recited consideration and its receipt in a deed to lands is not regarded as a part of the conveyance, and may be contradicted by parol evidence.</p>

Appeal by plaintiffs from Peebles, J., at September Term, 1915, of Wake. Civil action for a mandamus, beard upon a case agreed.

Appeal by defendant from Whedbee, J., at February Term, 1915, of New HaNoveR. Civil action to recover damages for physical injury to plaintiff, caused by the alleged negligence of defendant company in backing certain cars into a siding and against other stationary cars therein without giving adequate warning and by reason of which plaintiff received the injuries complained of.

Appeal by defendants from Shaw, J., at July Term, 1915, of Cleve-LAND. Action to recover tbe purchase price of a certain tract of land of 110% acres on tbe west side of a tract of 221 acres, wbicb tbe plaintiffs, Mary McSwain and J. J. Price, agreed to sell to tbe defendant, S. S. Royster.

<p>Appeal by defendant from Lane, J., at March Term, 1915, of Meck-LENBTJRG.</p> <p>Civil action.</p> <p>The plaintiff sued to recover damages for injuries alleged to have been caused by the negligence of defendant, the particular act of negligence being that defendant had carelessly left an iron frog in one of the streets of the city of Charlotte, and while plaintiff was walking along said street' her foot was caught in the frog, throwing her to the ground and greatly injuring her ankle and foot. The jury returned the following verdict;</p> <p>1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer-: No.</p> <p>2. Was the release set out in the answer secured by undue advantage and fraud, as alleged in the replication of the plaintiff? No answer.</p> <p>3. What damages is the plaintiff entitled to, recover of the defendant? No answer.</p> <p>Plaintiff moved for a new trial upon two grounds: (1) That the judge, without her consent, or that of her counsel, without their knowledge, and during the trial, after the jury had retired to make up their verdict, permitted the jurors to separate and go to their respective homes, returning the next morning to resume their deliberations. (2) Because of the refusal of the court to instruct the jury upon the first issue as requested by plaintiff.</p> <p>It was admitted that the next morning plaintiff’s counsel, about 10 o’clock, learned of the separation of the jury and made no objection thereto before the verdict wa3 returned.</p> <p>After argument of counsel upon the motion to set aside the verdict the court announced that the verdict would be set aside, and counsel for defendant then requested the court to find the facts and let the order setting aside the verdict be based on matters of law. The court refused to do so, and caused the following entry to be made upon the minutes: “Plaintiff moves to set aside the verdict, and the court, in the exercise of its discretion, allows the motion and orders that the verdict be set aside.”</p> <p>Defendant excepted and appealed.</p>

Appeal by plaintiff from Shaw, J., at May Term, 1915, of Ieedell. This action is brought to recover on an insurance policy, issued 28 April, 1903, by the first named defendant, and thereafter assumed by the other, and tried upon these issues 1. Was the note executed by Col. H. C. Cowles to the Provident Savings Life Assurance Society, for $2,539.25, given without any consideration ? Answer: No. 2.

Appeal by plaintiff, administratrix, and defendants from Lyon, J., at March Term, 1915, of Guileobd. Civil action, beard on petition filed in the cause alleging unauthorized and improper expenditures by C.' A. Bray, trustee, and report of referee concerning same.

<p>Appeal by defendants from Lyon, J., at March. Term, 1915, of Guil-EORD.</p> <p>Civil action. Tbe plaintiff sued for a penalty under Eevisal, sec. 2634, for failing to adjust and pay a claim for loss or damage to property, household furniture, while in the possession of defendants, as carriers, within 60 days after filing of claim by plaintiff, it being an intrastate shipment. The goods were shipped from "Wadesboro, N. 0., via the railways of defendants to Greensboro, N. C., and the bill of lading showed Ed. Little to be the consignor and G. E. Horton, husband of plaintiff, the consignee; but the goods belonged to plaintiff and her husband was acting as her agent, and, while he was the nominal, she was the real consignee. The goods arrived at Greensboro in a damaged condition and defendants promised to repair and deliver them to Mrs. Horton, but they failed to repair them, and afterwards sold them at Birmingham, Ala. The claim for the loss of the goods was then filed with defendants in the name of Mrs. Horton. The court submitted two issues to the jury and they were answered as follows:</p> <p>1. Are defendants indebted to plaintiff; if so, in what amount? Answer : $20.88.</p> <p>2. Are defendants indebted to plaintiff in the sum of $50 for the penalty, as alleged in the complaint? Answer: Yes.</p> <p>Judgment on the verdict, and appeal by defendants.</p>

Appeal by plaintiff from Lane, J., at October Term, 1915, of Iredell. This is a controversy without action submitted upon a case agreed. From the judgment rendered the plaintiffs appealed.

Appeal by plaintiff from Devin, J., at February Term, 1915, of For-syth. Civil action. This action was brought by tbe plaintiffs against' tbe defendant and tbe city of Winston-Salem to recover damages for injury to tbeir lot in said city, caused by tbe construction of a bridge or a viaduct and tbe approaches thereto, along Bank Street in said city, and between Liberty and Elm streets.

Appeal by defendant from Adams, J., at February Term, 1915, of Caldwell. Action to recover damages for slander, in wbicb tbe defendant denies speaking tbe words alleged in tbe complaint, but does not allege any facts nor rely on any plea in justification or mitigation. Tbe defendant offered evidence tending to prove tbe truth of tbe words. Tbis was excluded by tbe court and tbe defendant excepted.

Appeal by defendant from Rountree, J., at March Term, 1915, of ANSON. Civil action to recover an alleged overcharge upon an interstate shipment, with the penalty for failure to refund said overcharge within sixty days as required by Bevisal, secs. 2643-2644. In May, 1912, there was shipped to plaintiff from Detroit, Mich., a carload of freight, and upon arrival plaintiff paid charges thereon amounting to $161.34.

<p>Appeal and Error — Case Agreed — Time—Judgments in Term — Signature, of Judge — Rendered Out of Term — Statutes.</p> <p>It is not required that a judgment rendered in term be signed by the judge, and where the parties agree to an extension of time to serve case, counter-case or exceptions on appeal from a judgment thus rendered, the time must tie computed for serving appellant's case from the end of the term, and not from the time the judgment was actually thereafter signed under an agreement that the judge should do so. Instances where the judgment is rendered out of time have no application. Revisal, sec. 559.</p>

Appeal by defendants from Lane, J., at September Term, 1915^ of MONTGOMERY. Action to recover land.

Appeal by plaintiff from Connor, J., at October Term, 1915, of Geeene. Civil action to recover for breach of contract to convey to plaintiff certain real estate, pursuant to a definite written contract to that effect signed by plaintiff and by defendants, W. H. Dail and his wife, M. Y. Dail.

<p>Appeal by defendant from Long, J., at September Term, 1915, of MADISON.</p> <p>Civil action.</p>

<p>Appeal by defendant from Webb, J., at February Term, 1915, of BUNCOMBE.</p>

<p>1. Transfer of Canses — Removal of Causes — Plaintiff’s Residence — Administrators and Executors — Court’s Discretion — Statutes.</p> <p>Where a plaintiff alleges that he is a resident of a certain county wherein he has brought his action to recover for services he has rendered personally to the defendant, the administrator of a deceased person (Rev., sec. 424), it is a matter within the unreviewable discretion of the trial judge as to whether he will transfer the cause for trial to the county wherein the defendant resides, and which had been the residence of the' deceased, upon the latter’s motion, on the sole ground that “the convenience of the witnesses and the ends of justice would be promoted.” Revisal, sec. 425 (2).</p> <p>2. Executors and Administrators — Personal Debt — Venue—Election of Plaintiff — Statutes.</p> <p>An action brought to recover for services rendered personally to an administrator, not for a debt alleged to be due by the deceased or for the settlement of his accounts or upomhis bond as administrator, is a personal action against the administrator, etc., and can be brought at the election of the plaintiff in the county where either he or the defendant resides. Revisal, sec. 424.</p>

<p>1. Deeds and Conveyances — Haps—Streets—Dedication—Municipal Acceptance.</p> <p>Where a tract of land contiguous to a city is purchased and laid off into lots, streets, etc., for residential purposes, and a map thereof made and deeds made to the purchaser of these lots with reference to the lot numbers or streets platted, and the map is kept in the office of the promoters, the platting of the land and conveying the lots as stated is a dedication of tne streets to the public in general and to the purchasers of the lots in particular, the intention to dedicate being manifested by the maps and deeds; and it is immaterial whether the streets were actually open at the time the lots were conveyed or whether they have been accepted by the municipality.</p> <p>2. Deeds and Conveyances — Maps—Streets—Dedication—Obstruction—Nuisance — Injunction—Equity.</p> <p>Where the owner of land has platted it into lots for residential purposes and dedicated the streets, neither he nor the purchasers of the lots from him may thereafter close the streets or use them for their private purposes against the interest of the other purchasers of the lots; and the •remedy is by injunction of other proper remedy to have the nuisance abated.</p> <p>Walker, J., did not sit.</p>

<p>Appeal by defendant from Harding, J., at August Term, 1915, of YaNCEY.</p> <p>Action to recover land. It is admitted that the plaintiffs and the defendant claim under the same party, and that the plaintiffs have the older title from the common source. The plaintiffs, other than J. R. Penland, are the heirs at law of Garrett D. Ray, and the defendant is the grantee of Harold Johnson and others, heirs of R. B. Johnson, under a deed executed in 1910, which calls for the Ráy line.</p> <p>The description in the deed under which the plaintiffs claim is as follows:</p> <p>“Beginning on the N. W. corner of his (James Ray’s) 100-acre tract, a Spanish and bunch of sugar trees which he has a State grant for on the west side of Bowlin’s Creek, and running east 100 poles to a poplar; then along said eastwardly course the Hurricane or Black Mountain Ridge to the top of said ridge, a southwardly course along the top of said ridge to a stack of rocks on the Big Knob; thence an eastwardly course along the top of the ridge to the jumping off place at the head of Ailer’s Creek, waters of Toe River; then a southwesterly course along the various windings so as to include all the headwaters of Bowlin's Creek to his own line at Grassy Knot), at the right-hand fork of Bow-lin's Creek; then a north course along his line and Bowlin’s Creek to the line of 200-acre tract sold J. Wheeler; then around with Wheeler’s line to James Ray to the beginning corner of his 100-acre survey to a chestnut ; then to the beginning.”</p> <p>There is no dispute as to the location of this description up to the line leaving the Jumping Off Place, and the whole controversy between the parties is as to the true location of this line, which reads in the description as follows: “Then a southwesterly course along the various windings so as to include all the headwaters of Bowlin’s Creek to his own line at Grassy Knob, at the right-hand fork of Bowlin’s Greek.”</p> <p>The plaintiffs contend that the words “various windings” refer to the windings of the ridge, and that in order to include all the headwaters of Bowlin’s Creek the line must be run a southeasterly direction with a ridge to Celo Mountain, and then westwardly with a ridge to Grassy Knob, and the .defendant contends that “various windings” refer to Bowlin’s Creek and that the line must be run substantially straight a southwest course to Grassy Knob.</p> <p>The plaintiffs introduced several witnesses who testified that there was a general reputation existing, some said.40 years and others 25, 30 and 35 years, when there was no controversy that the Ray line ran with the ridge from Jumping Off Place to Celo, and then with the ridge to Grassy Knob. The defendant excepted.</p> <p>The plaintiffs also introduced evidence tending to prove that more than twenty years ago K. B. Johnson built a fence and cut out a road along the ridge from Grassy Knob to Celo, and that he then said the top of the ridge was the line between him and Eay; that there was a mica mine on the ridge, principally on the south side of the ridge, and that Johnson offered to lease it to one McMahon on the south side, but that he would not lease on the north side, as that was the Eay boundary. The defendant objected to the declarations of Johnson. Also that a survey was made before the deed was executed to the defendant, at which representatives of the defendant were present, and that on this survey ITarold Johnson stated that the Eay line ran along the ridge from Celo to Grassy Knob. The defendant excepted.</p> <p>Also that there was a continuous ridge, although called by different names, from Jumping Off Place to Celo, and then to Grassy Knob; that most of the large timber had been cut along the ridge, but that between Jumping Off Place and Celo there were three marked trees, a cherry, a locust, and a birch; that Bowlin’s Creek had three principal prongs, and that while the right-hand prong was at Grassy Knob, the headwaters of the other prongs were near Celo, and that it was necessary to run to Celo to include the headwaters of Bowlin’s Creek.</p> <p>The plaintiffs also introduced the record of a former action between E. B. Johnson and G. D. Eay, which was tried in McDowell County and taken by appeal to the Supreme Court, and is reported in 72 N. 0., 273, Pearson, G. J., writing the opinion, relying upon the record as an estoppel and insisting that if it is not an estoppel the opinion of the Court is a judicial construction that the line in controversy must run as they contend.</p> <p>The defendant excepted “to the court permitting,, over defendant’s objection, plaintiffs’ counsel, in argument to jury, to, tell the jury that the line in dispute had been passed upon and settled by the Supreme Court in Johnson v. Bay, reported in 72 N. C., 273, by one of the most illustrious judges who ever adorned the bench of any court in the world, and to read that opinion and to argue that the line was fixed to run up to top of Step Eock Eidge to Celo, and then along the top of Grassy Knob to James Eay’s line at Grassy Knob, at the right-hand fork of Bowlin’s Creek.”</p> <p>The court charged the jury that the record in the'former action was not an estoppel, as no final judgment had been introduced, and instructed the jury to answer the fifth issue “No.”</p> <p>There are several exceptions to the statement of-the contentions of the parties in the charge, but these depend on the admissibility of the evidence objected to.</p> <p>Tbe defendant also excepted to tbe refusal of bis Honor to remove tbe action from Yancey County, contending that it could not have a fair trial in that county on account of tbe wide and influential connections of tbe plaintiffs.</p> <p>Tbe location of tbe line was submitted to tbe jury as an issue of fact, and bis Honor instructed the jury that they could not depart from a “southwesterly course” from Jumping Off Place, except in so far as it was necessary to include tbe headwaters of Bowlin’s Creek. -</p> <p>Tbe jury returned tbe following verdict:</p> <p>1. Where is tbe line which is called for in tbe description in tbe complaint after reaching tbe “Jumping Off Place” at tbe bead of Ailer’s Creek as follows, “Then a southwesterly course along tbe various windings so as to include all tbe headwaters of Bowlin’s Creek to James Ray’s line at Grassy Knob at tbe right-band fork of Bowlin’s Creek”? A. With tbe main height of tbe ridge to Celo; thence tbe main height of tbe ridge to Grassy Knob.</p> <p>2. Are the plaintiffs tbe owners of tbe land described in the complaint or any part thereof? A. Yes.</p> <p>3. Has defendant trespassed upon the lands of plaintiffs, as alleged? A. Yes.</p> <p>4. What damage, if any, are plaintiffs entitled to recover of defendant? A. None.</p> <p>5. Is defendant estopped from claiming title to tbe lands in dispute by tbe judgment in Johnson v. Bay, as alleged in tbe complaint? A. No.</p> <p>Judgment was entered upon tbe verdict in favor of tbe plaintiffs and tbe defendant appealed.</p>

<p>Afpeai, by plaintiffs from Bond, J., at May Term, 1915, of Wayne.</p> <p>Special proceeding before tbe clerk, which was removed to the Superior Court of Wayne, at term, by appeal and order of the clerk, and there heard on exceptions of the plaintiff.</p> <p>This is a proceeding to establish a drainage district in Wayne County, to be known as No. 1. It seems from the record that the proceedings for that purpose instituted before the clerk were regularly conducted. Tbe preliminary report under Public Laws 1909, cb. 442, secs. 3, 4, 5, and 6, was filed and considered by tbe clerk, and tbe report establishing tbe district and fixing its boundaries was, after due notice to tbe parties, confirmed on 26 October, 1911, and, as required by tbe statute, tbe matter was recommitted to tbe engineer and viewers who made tbe report, for tbe purpose of having a complete survey of tbe district, with maps and plans prepared by them and filed with tbe clerk. This final report was returned and filed on 20 December, 1911, and tbe same was ordered to be beard on 18 January, 1912, after due notice to tbe parties, which was given. No exceptions were filed to tbe confirmation of tbe preliminary report, nor was any appeal taken therefrom, under sec. 8 of tbe act, nor was there any exception to tbe confirmation of tbe final report or any appeal therefrom by J. W. Bizzell, and none at all, except by J. S. "Wooten, Mrs. Daisy Smith, Mrs. E. W. Sanderlin and Mrs. Henrietta Wooten, who filed formal written exceptions and appealed from tbe order of tbe clerk to tbe Superior Court at term for a trial by jury. When the preliminary report was confirmed and a further report ordered, for tbe purposes indicated in tbe statute, and when commissioners were duly appointed and tbe final report confirmed, tbe first installment of bonds to defray tbe cost of tbe drainage scheme were issued to the amount of $23,489.30, tbe sum of $2,810.70 having been paid in by certain landowners. It was afterwards found that this was not sufficient and tbe plaintiff applied, by petition, to tbe clerk, for an additional issue of $6,575, which was ordered by tbe clerk.</p> <p>J. W. Bizzell answered tbe petition and amended petition, and in bis answer be objected to tbe classification in the final report of tbe engineer and viewers, and asked that tbe number of acres of bis land included in tbe formation of tbe district be reduced from fifty-five and four-tenths to tbirtv-four acres, tbe latter being tbe number of acres really embraced by the boundaries of tbe district. He also alleged a great disproportion between tbe assessment upon bis land and tbe benefit derived from the drainage. Tbe clerk reduced bis land thereby to thirty-two and one-half acres.</p> <p>J. S. Wooten and others above named also filed an answer to tbe petition for an additional issue of bonds.</p> <p>The petitioners excepted to the order of tbe clerk in regard to tbe reduction in acreage of J. W. Bizzell’s land, and to tbe allowance of an answer by J. S. Wooten and others, and tbe whole matter was taken before the Superior Court by appeal, and, coming on to be heard there, the cause was referred, by consent of the parties, to W. D. Grant, Fred S. Tsler and J. K. Warner (Henry A. Grady afterwards substituted for him), for tbe trial and determination of all tbe matters in controversy. The referees filed their report, changing the classification as to the lands of Mrs. E. W. Sanderlin and Mrs. Kate Wooten and directing a reassessment, and also tbe issue of the additional bonds for $6,575 as asked for by the plaintiff, in affirmance of the clerk’s action. They overruled the exception of plaintiff to the order of the clerk in respect to the J. W. Bizzell land, and they tendered a judgment in conformity with their findings of fact and conclusions of law. The plaintiff filed several exceptions to this report, from which the referee W. D. Grant had dissented by a formal report of his own, and the entire matter, orders of the clerk, report of referees and exceptions thereto, came on to be finally heard before Hon. W. M. Bond, judge presiding, at May Term, 1915, when “it was admitted in open court by the attorneys of plaintiff that there was ample evidence before the referees to sustain their report.” The case, having been fully argued and duly considered by the court, it was adjudged that all of the exceptions be overruled, and the judgment of the clerk and the report of the referees were in all respects approved and confirmed, and judgment was accordingly entered and the costs and allowances taxed as therein provided. Plaintiffs excepted and appealed to this Court.</p>

<p>Appeal by defendant from Lyon, J., at January Term, 1915, of GrUILEORI).</p> <p>Civil action. The action was to recover damages for the alleged negligent killing of the intestate, and there was evidence on the part of plaintiff tending .to show that on 3 June, 1914, intestate and others were in an automobile going to their work about seven miles west of Greensboro, and, as they were endeavoring to cross the track of defendant company at a much-frequented crossing, just beyond the city limits, they were run on by the train of defendant company, the machine crushed and intestate killed; that the car belonged to John T. Hunt, a contractor and one of employers of deceased, and was being driven or operated at the time by E. IT. Stanford, a cocontractor and partner of the owner, and, at the time of the collision, the defendant’s train approached the crossing from the west at a very rapid rate of speed and without having sounded the whistle, rung the bell, or in any way given warning of the approach. It was claimed by plaintiffs that there was evidence also tending to show that the crossing at the time was in a defective condition, and that this also was a contributory and proximate cause of the injury.</p> <p>Defendant denied that it was negligent in either of the respects suggested, and offered evidence tending to support its position. On the three usual issues of negligence, contributory negligence and damages, there was verdict for plaintiffs. Judgment, and defendant excepted and appealed.</p>

<p>Appeal by both parties from Harcting, J., at Spring Term, 1915, of Avery.</p> <p>Civil action tried upon an agreed state of facts. From the judgment rendered, plaintiff and defendant both appealed.</p>

Appeal by plaintiff from order dissolving restraining order by Bond, J., beard at chambers 19 October, 1915; from Beaufort. Civil action, heard on motion to dissolve a preliminary restraining order. The action was to restrain' the defendant commissioners from spending certain moneys held by them, part of the proceeds of a bond issue for laying out, etc., the roads of a township, pursuant to ch. 122, Laws 1913.

Appeal by botb parties from Shaw, J., at April Term, 1915, of Cabakrus. The plaintiffs, on 29 March, 1912, leased the hotel property at Bre-vard, N. C., from the defendant company for one year with the privilege of renewal for two years.

Appeal by defendant from Harding, J., at March Term, 1915, of Wilkes. Civil action tried upon these issues: 1. Is defendant indebted to plaintiff by reason of loss of goods or failure to deliver said goods, as alleged by plaintiff ? If so, in what amount ? A. Yes, $138.04, with interest from date claim was filed, 7 January-, 1914. 2. Had 90 days expired from the filing of the claim in this cause to the beginning of this action? A. Yes.

Appeal by plaintiff from Long, J., at March Term, 1915, of YaNcey. Proceedings instituted by plaintiff to recover damages for railroad right of way, heard on appeal from the clerk of Superior Court.

<p>Appeal by intervenors from Allen, J., at March Term, 1915, of CUMBERLAND.</p>

Appeal by defendants from Harding, J., at August Term, 1915, of RUTHERFORD. ■ Civil action. Plaintiff sued for tbe value of services rendered by her to the testator of defendants during the year 1905, and from that time to 12 December, 1910 — in furnishing him board to November, 1908, and board and lodging the rest of the time.

Appeal by defendant from Lane, J., at April Term, 1915, of Mece:-LENBURG. Civil action. The action was to recover damages for injuries caused by the alleged negligence of defendant company.

Appeal by plaintiff from Lane, J., at April Term, 1915, of GastoN. Civil action. At the conclusion of the evidence a motion to nonsuit was made and allowed. The plaintiff excepted and appealed.

<p>1. Contracts — Sale of Land — Principal and Agent — Guarantee of Agent-Liens.</p> <p>In a contract made for the platting of land in a town into lots and boosting the sale with a brass band, advertising and other methods, specifying how the expenses were to be proportioned between the parties, the defendant, whose business i-t was to make sales of this character, by express provision of article 3 of the contract, agreed to pay the plaintiff $8,000 on the day of the sale and half the amount the property would bring beyond that sum, and was to receive $300 as expenses, to be deducted from his part of the profits: Held, the payment of the $8,000 was a guarantee on defendant’s part to which it was obligated, and the trial judge correctly directed its payment, and interest, into court, to be applied, in this case, by the clerk to the discharge of all liens on the land, and the balance to the plaintiff on his tendering to defendant an indefeasible deed to the property.</p> <p>2. Contracts, Duplicated — Change in Copy — Original Contract.</p> <p>Where the remainderman contracts that the lands shall be sold upon a contingent profit by another acting as sales agent, which was executed in duplicate, and he afterwards has the life tenants to sign his copy so as to bind them to the agreement, it is held that the alteration of this copy in the respect stated did not affect the original agreement as stated in the copy of the other contracting party; and further, that it was in furtherance of his interest and not prejudicial to it.</p> <p>8. Contracts — Reformation—Evidence.</p> <p>In this action to reform a written contract for mutual mistake, the verdict of the jury establishing the contract as written is held to be supported by the evidence.</p>

Appeal by defendant from Justice, J., beard at ebambers by consent, 25 September, 1915; from ClevelaND. Controversy heard on ease agreed. It appeared that plaintiff, formerly Harriet S. Borders, had contracted to convey the land in controversy to defendant at a stipulated price, and payment was resisted by defendant on the ground that plaintiff could not make a good title.

<p>1. Railroads — Negligence—last Clear Chance — Evidence.</p> <p>Where the plaintiff’s intestate has been killed on the defendant railroad company’s trestle by its passing train, and in an action for damages the issue of the last clear chance arises, as to whether the engineer of the defendant, by keeping a proper lookout, could have avoided the injury notwithstanding the intestate’s contributory negligence in having placed himself upon the trestle, it is competent for witnesses to testify, from their own knowledge and experience, as to the distance the engineer could have seen the intestate if he had been keeping a proper lookout;' and, by those experienced in such matters and familiar with the roadway at the place, the distance within which the train could have been stopped at the place, according to its speed, length and weight.</p> <p>2. Evidence — Nonsuit.</p> <p>The evidence is considered in the light most favorable to the plaintiff upon defendant’s motion to nonsuit thereon.</p> <p>3. Railroads — Negligence.—Last Clear Chance — -Proximate Canse — “Lookout.”</p> <p>In an action to recover damages for the negligent killing of plaintiff’s intestate the fact that the intestate negligently went upon the trestle and was there killed by defendant’s passing train will not absolve the company from its duty to keep a proper lookout ahead and use proper efforts to stop the train in time to avoid the killing; and if the defendant fails in this duty, and this causes the death, the negligence of the defendant therein is the proximate cause, and fixes its liability. Bogan v. R. R., 129 N. C„ 156.</p> <p>4. Negligence — Evidence—Proximate Canse — Trials—Questions for Jury.</p> <p>Proximate cause of an injury will not be determined as a matter of law when more than one inference can be drawn from the evidence; for then it is a question of fact for the determination of the jury.</p> <p>5. Appeal and Error — Terdiet—Instructions—Harmless Error.</p> <p>The verdict of the jury on an issue in appellant’s favor cures an error in the court, if any committed, in refusing to give a requested instruction on that issue.</p> <p>6. Railroads — Trespasser—Permissive Use.</p> <p>Where a trestle of a railroad company has been used as a passway for a great many years a person injured thereon by a passing train is not regarded as a trespasser, and the company is required to keep a sharp lookout at the place and give timely warning to prevent a collision.</p>

Appeal by plaintiff from Webb., J., at August Term, 1915, of Oheeokee. Civil action. At the conclusion of the evidence the court sustained a motion to nonsuit, and plaintiff appealed.

Appeal by defendants from Lane, J., at August Term, 1915, of O ABARRES.

Appeal by plaintiff from Cline, J., at March Term, 1915, of Swain. This action is for damages for failure to deliver the following message which was handed by the plaintiff to the defendant’s operator at Bryson City, N. 0., addressed to his son-in-law, John Edwards, Greenville, 5. C.: “Your wife’s mother dead. Come.

Appeal by defendant from Webb, J., at July Term, 1915, of Haywood. This is a motion to set aside a judgment upon the ground of excusable neglect.

Appeal by plaintiff from Webb, J., at January Term, 1915, of Buncombe. Civil action to set aside a deed on tbe ground of fraud, made by A. J. Lyman to bis wife and codefendant, and subject tbe property conveyed therein to tbe payment of a judgment held by plaintiff against said A. J. Lyman. At tbe close of tbe plaintiff’s evidence, on motion of defendant, there was judgment of nonsuit, and plaintiff excepted and appealed.

Appeal by plaintiff from 'Webb, J., at April Term, 1915, of Buw-OOME. This is an action to recover money alleged to be due under a written contract entered into by tbe plaintiff and tbe defendant on 16 December, 1908, contemporaneously witb tbe sale of certain stock by tbe defendant to tbe plaintiff, tbe material parts of wbicb are as follows : “It is hereby agreed between Dr. Gr.

<p>Roads and Highways — Bonds—Subsequent legislation — Restrictive as to Time — Constitutional law.</p> <p>An act forbidding the issuance of bonds, theretofore authorized by the Legislature upon the approval of the voters, in a newly created road district, after designated time, in this case twelve months from its enactment, is constitutional and valid, and the bonds thereafter issued are void, and there is no authority in the road commissioners to ratify them.</p>

■ Appeal by plaintiffs and defendants from Connor, J., at March Term, 1915, of Pitt. Civil action to recover the possession of the land described in the complaint. Defendant denied plaintiff’s title and right to the possession, and specially pleaded certain equities to defeat their recovery.

<p>Appeal by plaintiffs from Cline, J., at February Term, 1915, of JACKSON.</p> <p>Tbis is an appeal from an order removing tbe action from tbe State to tbe Federal court upon tbe ground of diverse citizenship.</p> <p>Tbe action was brought by tbe plaintiffs against tbe defendant W. T. Clayton, a citizen and resident of Jaelcson County, and tbe defendant Champion Fiber Company, a corporation duly organized under the laws of tbe State of Ohio, returnable to February Term, 1915, of tbe Superior Court of Jackson County.</p> <p>The plaintiffs filed their complaint within tbe first three days of court, alleging tbat they were tbe owners of a certain tract of land of 645 acres in said county and tbe acid and pulp woods thereon, and tbat tbe defendants made and entered into a contract on 7 March, 1907, with tbe plaintiffs under tbe terms of wbicb tbe defendants undertook that they would, with in five years and within tbe life of a certain flume which bad been constructed by tbe plaintiffs and was in said agreement sold to tbe defendants, cut and remove all tbe said acid and pulp woods from tbe said lands, paying tbe plaintiffs tbe sum of $1 per cord therefor, in tbe manner and under the terms and conditions a,s alleged, and wbicb said contract was to be completed and all of said acid and pulp woods removed and paid for on or by 7 March, 1912; that plaintiffs’ cause of action accrued on 7 March, 1912; that tbe defendants bad until 7 March, 1912, to complete their said' contract and make settlement therefor, but that tbe defendants failed and neglected to remove tbe said woods from tbe said lands and to make settlements therefor, and left large quantities of said woods standing and being thereon; and in tbe meantime tbe flume line, by wbicb alone tbe same was made marketable, became unfit for use, and that tbe plaintiffs; by reason of tbe breach of said contract, were damaged in tbe sum of $3,000.</p> <p>During said February term of court, and in apt time, tbe defendant Champion Fiber Company filed its duly verified petition and bond for removal of tbe action to tbe Federal Court for tbe Western District of North Carolina, setting forth two grounds for removal: (1) that tbe matter in controversy exceeded, exclusive of interest and costs, tbe sum of $2,000, and that plaintiffs’ cause of action arose prior to 1 January, 1912; (2) that tbe defendant W. T. Clayton was not a necessary party defendant, and was joined as such with tbe fraudulent purpose of depriving tbe Federal court of its rightful jurisdiction.</p> <p>No fraud is alleged as to tbe first cause of removal, tbe defendant simply denying that tbe cause of action arose prior to January, 1912. Tbe court signed an order removing tbe cause to tbe Federal court, and ibe plaintiffs excepted and appealed to tbe Supreme Corirt.</p>

<p>1. Appeal and Error — Former Appeal — Second Appeal — Different Parties.</p> <p>Where the Supreme Court has decided the matters presented on appeal by some of the parties interested in the controversy, other parties thereto may not prosecute a second appeal from the application by the referee of the principles formerly passed upon, for the former decision is the law of the case and cannot be reviewed on a second appeal.</p> <p>2. Liens — Statutes—Cutting Logs — Appeal and Error — Costs.</p> <p>The definition of laborers who are entitled to a lien for work while engaged in cutting logs into lumber, under the provisions of chapter 150, sec. 6, Laws 1913, as decided in G-laeener’s case, 167 N. C., 676, is further classified in this case; and the laborers being entitled to a lien upon their employers’ interest in the lumber, it is held that the amounts due them be retained out of such interest and paid over to them. The plaintiffs, having established their lien, are entitled to recover cost of appeal. Revisal, 1279.</p> <p>Walker and Hoke, JJ'., dissent.</p>

Appeal by defendant from Harding, J., at Spring Term, 1915, of Avery. Civil action beard upon exceptions to referee’s report. From tbe judgment rendered defendant appealed.

<p>Appeal by plaintiff from Shaw, at March Term, 1915, of Randolph.</p> <p>Civil action. The nature of the case, the verdict, and the facts relevant to the exception presented will sufficiently appear in his Honor’s judgment, which is as follows:</p> <p>This cause coming on for trial at March Term, 1915, of Randolph Superior Court, Hon. T. J. Shaw, judge, presiding.</p> <p>A jury having been chosen, sworn, and impaneled to try the issues submitted to them, who have answered the same in favor of the plaintiff, as follows:</p> <p>What amount, if any, is the defendant Louisa Tates indebted to the plaintiff? Answer: Yes; $210.</p> <p>It is, therefore, on motion of plaintiff’s counsel, ordered and adjudged that the plaintiff recover of the defendant Louisa Yates the sum of $210.</p> <p>It is further ordered that the said sum of $210 is a credit upon said mortgage, executed by the plaintiff Mavin Yates to the defendant Louisa Yates on 6 December, 1911, which said mortgage was for the sum of $500, with interest from date. Said mortgage being recorded in Book 153, at page 15, in the office of the register of deeds for Randolph County on 26 October, 1912.</p> <p>It is further ordered that the injunction and restraining order, restraining the 'defendants, their agents, servants, and substitutes, from selling said property described in the mortgage from the plaintiff to the defendant till the hearing, and recorded in Book K, 53, at page 15, in the office of the register of deeds for .said county, be and the same is hereby dissolved.</p> <p>It is further ordered that the plaintiff Mavin Yates have sixty days to pay the remainder of said mortgage and interest thereon from the adjournment of this court; that upon the failure of the said Mavin Yates to pay said balance of said mortgage and interest thereon within the sixty days as aforesaid, it is ordered that the lands described in the said mortgage be sold at the courthouse door in Randolph County according to the terms and conditions of said mortgage.</p> <p>It is further ordered that B. E. Britton be and is hereby appointed commissioner to sell said lands if said mortgage with interest thereon is not paid off within the sixty days as aforesaid.</p> <p>It is further ordered that said commissioner sell said land at the courthouse door in Randolph County and out of the money arising from said sale pay the balance of said mortgage, together with the interest thereon, and pay the costs of recording said mortgage and the advertisement and other costs of said sale, and if any remainder be on hand the same shall be paid to the plaintiff Mavin Yates; and said commissioner shall report his proceedings by virtue of his office to July Term, 1915, of Randolph Superior Court.</p> <p>It is further ordered that the plaintiff Mavin Yates pay one-half of the court costs of this action and the defendant Louisa Yates pay one-half of said court costs.</p> <p>It is further ordered that the plaintiff Mavin Yates pay his costs incurred in this action, and the defendant Louisa Yates pay her costs incurred in this action, to be taxed by the clerk.</p> <p>Thomas J. Shaw,</p> <p> Judge Presiding. </p> <p>Plaintiff excepted from the judgment taxing plaintiff with any part of costs.</p>

Appeal by defendant from Cline, J., at February Term, 1915, of JACKSON. Civil action upon exceptions to referee’s report. His Honor overruled defendant’s exceptions, confirmed the report, and rendered judgment for plaintiff. Defendant appealed.

Appeal by defendants from Webb, J., at July Term, 1915, of SwaiN. Civil action heard upon demurrer. From the judgment overruling the demurrer defendants appealed.

Appeal by defendants from Cline, at May Term, 1915, of JacksoN. Civil action beard on demurrer to tbe complaint.

Appeal by defendant from Lyon, J., at February Term, 1915, of Guilford. Civil action to recover on a policy of insurance.

Appeal by plaintiff from Webb, J., at September Term, 1915, of MeCKLENBTTRG. Civil action to recover damages for death of intestate, caused by alleged negligence of defendant company.

Appeal by plaintiffs from order of tbe Corporation Commission, beard by Garter, J., Spring Term, 1915, of ÁNSON. Tbe court dismissed tbe appeal, and tbe plaintiffs appealed to tbis Court.

<p>Appeal by plaintiffs from Peebles, J., at chambers in Vaitce.</p> <p>Civil action, upon a motion for an injunction. Plaintiffs appealed.</p>

MotioN to vacate a judgment by default final rendered in an action to set aside a deed and recover land, beard before Cline, J., first at Franklin, N, C., in chambers, by consent, where bis Honor made certain findings of fact relevant to inquiry, as appears of record.

, entered at May Term, 1915, of Haywood, confirming the report of sales of certain lands, together with the mineral interests reserved in the said lands, by parties representing the Love estate. The action has been pending in the Superior Court of Haywood County for many years.

Appeal by plaintiff from a judgment of nonsuit rendered by Daniels, J., at April Term, 1915, of Wake. Tbe plaintiff, on July 17, 1910, it being Sunday, was walking with a companion, Tom Jennings, on that part of defendant’s right of way which lies between the city of Ealeigh and Pullen’s Park, which is about a mile west of defendant’s station at Ealeigh.

<p>Appeal by defendant E. H. Jennings from Cline, J., and a jury, at May Term, 1915, of Jackson.</p> <p>The plaintiffs, claiming to be the owners in fee of two tracts of land located in Jackson County, sued the defendants under section 1589 of Eevisal of 1905, alleging that the lands were granted by the State to one John T. Foster, and that they derived title by various mesne conveyances from and through said John T. Foster, and that they are informed that ■the defendant E. IT. Jennings claims to be the owner of an estate or interest in said two tracts of land, which claim is adverse to the rights of these plaintiffs, and that the said E. G-. or Richard Jennings also makes some kind of a pretended claim to said two tracts of land.</p> <p>The defendant E. H. Jennings denies the allegations of the plaintiffs and admits that if the two tracts of land claimed by plaintiffs and described in their complaint are embraced within the lands of the defendant E. H. Jennings, he, the defendant E. H. Jennings, claims an estate and interest therein adverse to plaintiffs.</p> <p>The defendant R. Gr. Jennings answers and says that he has no estate or interest in the land claimed by the plaintiffs and claims none, and, further, denies that he has trespassed upon said lands by fishing or otherwise.</p> <p>A judgment dismissing the action as to R. Gr. Jennings was entered.</p> <p>After the commencement of the action the plaintiffs conveyed all of their claim to the lands in controversy to the Wolfe Mountain Lumber Company, and this company was made a party plaintiff before the trial and adopted the complaint of the plaintiffs therein.</p> <p>In the progress of the trial defendants excepted to certain documents offered in evidence by the plaintiffs and to various portions of the charge of the court below.</p> <p>The jury returned the following verdict:</p> <p>1. Are the plaintiffs the owners of the lands described in the complaint as State Grants Nos. 190 and 191, and as located on the maps? Answer: “Yes.”</p> <p>2: Do the defendants, or either of them, claim an estate or interest in and to said Grants Nos. 190 and 191, or any part thereof, adversely to the title of plaintiffs? Answer: “Yes.”</p> <p>3. What damage, if any, are plaintiffs entitled to recover of defendants ? Answer: “$1.”</p> <p>The defendant E. H. Jennings appealed from the judgment rendered upon the verdict.</p>

Civil action, beard by Whedbee, J., at June Term, 1915, of WASHINGTON Superior Court, upon a case stated for his opinion, and the judgment of the court, in a controversy submitted without action under the statute. Plaintiff appealed. The facts are as follows: 1.

<p>1. Municipal Corporations — Cities and Towns — Streets and Sidewalks — Negligence — Constructive Knowledge.</p> <p>In an action against a city and another for damages for a personal injury there was evidence tending to show that the codefendant, a plumbing company, under a permit of the city to make sewer connections for an owner adjoining the street, left an excavation across a much frequented sidewalk 2 to 2y2 feet deep, unlighted and without guard, into which the plaintiff, while going along the sidewalk on 31 December, about 6:30 or 7 p. m., fell and was injured. Held, sufficient upon the question of the defendant city’s actionable negligence in failing to have the place properly lighted or safeguarded; and also, under the circumstances, to give the city ample constructive and previous knowledge of the existence of the defect.</p> <p>2. Trials — Negligence—Instructions — Municipal Corporations — Streets and Sidewalks — Appeal and Error.</p> <p>The defendant plumbing company, in connecting sewerage for a private owner with the system of the city, made a ditch 2 to 2yz feet deep, about 23 December, across a much frequented sidewalk, into which the plaintiff fell and was injured about 6:30 or 7 p. m. on 31 December following. The defendant requested the court to charge the jury that if it filled in and well tamped the hole on the day it was dug, and it did not exist until noon of the 31st, it would not he guilty of actionable negligence. Held, the prayer was properly refused, as it excluded the inference, under the evidence, that its hands should have discovered and protected the place on the 31st while at work there, or that the ditch had been negligently dug, thus causing the cave-in.</p>

Appeal by defendants from Ferguson, J., at Fall Term, 1915, of SwaiN. This is an action brought for the purpose of determining the title to five several tracts of land embraced in State Grants Nos. 2865, 2866, 2867, 2868, and 2869, as described in the complaint, plaintiffs asserting ownership thereto as the children and heirs at law of one W. H. Herbert by descent and not by purchase.

Appeal by defendants from Gline, J., at Spring Term, 1918, of MacoN. Civil action to try tbe title to a tract of land situate in Macon County on or near tbe Nantabala River, and at tbe trial it was admitted tbat tbe defendant owned tbe southern part of tbe land covered by Grant No. 3487, approximately tbe portion below tbe tentative line T, and tbat plaintiff owned the land adjoining and up to tbe lines of said grant.

<p>1. Clerks of Court — Receivers—Official Bonds — Sureties’ Liability.</p> <p>Where lands are ordered to be sold and the court appoints the clerk of the court by name and official capacity as such to sell and to receive and invest the proceeds, without requiring bond, the clerk acts officially in regard to such duties, and the sureties on his bond as clerk of the court are liable for his failure to properly discharge the duties of his trust.</p> <p>2. Clerks of the Court — Receivers—Orders of Court — Disbursements—Credits.</p> <p>Where the clerk of the Superior Court is ordered in his capacity as such to sell lands and invest and reinvest the proceeds, and makes payment of certain moneys under the further orders of the court, in pursuance of the management of the property, no personal liability attaches to the clerk in acting accordingly; and where it is established that such orders have been duly made, the failure to record them cannot prejudice him.</p> <p>8. Appeal and Error — Reference—Exceptions.</p> <p>Where a referee’s conclusion of law upon the facts found by him has been overruled by the trial judge, and no exception thereto has been taken by the appellant, he may not be heard to complain on appeal.</p> <p>4. Clerks of Court — Receivers—Orders of Court — Deposits—Interest.</p> <p>Where the clerk, under order of court, sells certain lands, and deposits the proceeds with a bank which paid 5 per cent on accounts deposited for six months, but no interest on checking accounts, and it appears that the clerk was required to check on this account under the further orders of the court, hut made a special arrangement with the bank whereby, he was to receive 4 per cent on this deposit, wdiich was the best he could do, he is not chargeable with the 5 per cent interest paid by the bank on its time deposits.</p> <p>5. Same — Two Funds.</p> <p>Where an officer of the court, ordered to sell land, deposit the proceeds in a bank at the largest rate of interest obtainable, has two funds so deposited, on one of which he can and on the other he cannot draw interest, and he is required to cheek on his account in the performance of his duties, which could have been done on either account, he is chargeable with the interest lost by his checking on the interest-bearing account.</p> <p>6. Public Officers — Detaining Funds — Penalties—Interpretation of Statutes.</p> <p>In an action to recover the 12 per cent allowed under Revisal, sec. 284, from the clerk of the court, etc., for money unlawfully detained, it is necessary that the plaintiff show some adequate default; and it appearing in this case that the parties agreed to a settlement, but that the plaintiff had refused to make a proper allowance for certain expenditures, the cause is sent back for further findings as to what had been done by the parties at the attempted settlement, the amount, if any, in defendant’s hands and due the plaintiff, or whether a proper tender had been made and refused.</p> <p>7. Clerks of Court — Receivers—Commissions—Appeal and Error — Remanding' Case.</p> <p>The clerk of the court being required to sell certain lands and invest the proceeds, etc., and it appearing that he had rendered services of value, with no indication of conversion, misapplication, or commingling of funds, it is held that he is entitled to his commissions in the settlement of the estate, though he is chargeable with certain interest that he may have received on the funds intrusted to him. Revisal, sec. 2773, relating to the commissions of the clerk, has no application to the facts of this case.</p>

Appeal by defendant from Devin, J.,- at April Term, 1915, of ANSON. Civil action to recover damages of defendant corporation for wrongfully entering on a lot of plaintiff in said town with, intent to appropriate 8 feet of same extending along tbe line of Martin Street, etc. Defendant denied liability, claiming tbat tbe 8 feet in dispute was a part of Martin Street and defendant bad tbe right to enter and appropriate tbe same for tbe purpose indicated.

Appeal by plaintiffs from Allen, J., and a jury at April Term, 1915, of CUMBERLAND. Action to recover damages for wrongful death, alleged to have been caused by the negligence of the defendant. Plaintiffs’ intestate was a section foreman of the defendant. He had been at work at New Berlin, and on the night he was killed he and other employees of the defendant went to Farmers on a hand-car.

<p>1. Nuisance — Permanent Damages — Test</p> <p>Upon the question of whether a plaintiff is permitted at his election to recover the entire damages to his lands, past, present, and prospective, in one action, for nuisances and wrongs of like character, the test is whether the whole injury results from the original wrongful act or the wrongful continuance of the state of facts produced hy these acts; that is, whether the wrongful act is single and entire, though causing subsequent and continuous injury, or whether a defendant wrongfully continues -and maintains the conditions which result in continued or recurring damages.</p> <p>2. Nuisance — Public Eights — Permanent Damages — Private Owner.</p> <p>Permanent damages to the land arising from the commission of a nuisance or wrongs of like character are allowable where the rights of the defendant, whose acts cause the nuisance, are modified by the presence of a superior interest arising to the public, as in instances, of quasi-public corporations having right of eminent domain; but not where the alleged injury arose from the acts of a private owner. ■</p> <p>8. Same — Fertilizer Plant — Private Owner — Successive Actions.</p> <p>The manufacture of fertilizers is not a nuisance per se, and whether it is such depends upon its situation, environment, and the manner in which it is being operated; and when there .is nothing to show that such manufacture is objectionable as a public nuisance, the action is strictly one in adjustment of private rights, and the plaintiff is confined in his suit to a recovery of damages in successive actions, the same to be estimated up to the time of the trial, if the nuisance continues.</p> <p>4. Nuisance — -Private Owner — Abatement.</p> <p>Where it appears in an action for damages for the maintenance of a nuisance that it is one in adjustment of private rights and not one in which permanent damages may be awarded, the court may, if the facts and circumstances justify it, order an abatement.</p>

<p>Appeal by plaintiff from Qonnor, J., at March Term, 1915, of Pitt. Appeal from an order dissolving a restraining order.</p>

Appeal by defendant from Coohe, J., at April Term, 1915, of Durham. Civil action, tried upon these issues: 1. Is the defendant indebted to the plaintiff, as alleged? If so, in what amount? Answer: “$300.” 2. Is the plaintiff indebted to the defendant by way of counterclaim, as alleged? If so, in what amount? Answer: “Nothing.” The defendant appealed.

<p>Contracts — Warranty—Breach—Pleading's—Evidence—Variance.</p> <p>Where the defendants set up a breach of warranty in an action upon contract to deliver a certain number of pounds of “14 single cotton warps” at a certain price per pound, and there is no evidence of express warranty, and the defendant admits the delivery and use of the “warps,” evidence only tending to show unskilled workmanship in the manufacture of the “warps” and defects in their quality, without claim that they were worthless, does not support the allegation in the answer, and the counterclaim will be disallowed as a matter of law. Robinson v. Suff-stetler, 165 N. C., 459, cited and applied.</p>

Appeal by defendant Patterson from Devin, J., at March Term, 1915, Of STANLEY. Civil action tried upon these issues : 1. Is the defendant H. C. Patterson indebted to the plaintiff, and if so, in what amount? Answer: “Yes; $347.95, with interest added.” 2. Is the defendant H. F. Starr indebted to the plaintiff, and if so, in what amount? Answer: “No.”

<p>Appeal by defendant from Webb, J., at chambers in Charlotte, 27 October, 1915.'</p>

Appeal by Piedmont Traction Company from Lane, J., at May Term, 1915, of MeckleNbueg. These two actions were consolidated and tried together upon this issue: What damages, if any, shall the Piedmont Traction Company be required to pay the Wadsworth Land Company as compensation for the condemnation of the right of way described in the traction company’s amended petition? Answer: “$20,000.” From the judgment rendered, defendant the Piedmont Traction Company appealed.

Appeal by plaintiffs from an order dissolving a restraining order, heard 27 September, 1915; from PeNdee. Appeal from judgment rendered dissolving a temporary restraining order issued by his Honor, Rountree, J., enjoining the defendants, the board of county commissioners of. Pender County, from appointing registrars and judges of election to conduct an election which had previously been called to be held 2 November, 1915. The plaintiffs appealed.

Appeal by defendants from Adams, J., at July Term, 1915, of Avery. Civil action heard upon exceptions to the report of a referee. His Honor overruled all the exceptions, affirmed and approved the findings of fact, and rendered judgment against the defendants for $598.45, with interest. The defendants appealed.

Appeal by defendant from Gime, J., at May Term, 1915, of Hat-wood. Action to recover $300 due. by note under seal executed by the defendant on 12 March, 1902, and payable on 1 January, 1903. A credit of $50 is indorsed on the note of 12 September, 1913, but the defendant alleges that he -was induced to make th'is payment by fraudulent representations, and he pleads the statute of limitations. The jury found that the payment was made and that it was not induced by fraud.

<p>Appeal by defendant from Cline, J., at March Term, 1915, of SwaiN.</p>

<p>1. Municipal Corporations — Ordinances—Sunday Closing — Unlawful Discrimination — Test—Procedure—Constitutional Law.</p> <p>Commissioners of a town may, by valid ordinance, prohibit the opening of places of business in the town on Sunday, excepting drug stores, Revisal, sec. 2923; and where by further provision of the ordinance the drug stores may sell drinks, tobacco, etc., between certain hours, an objection to this provision on the constitutional ground of unlawful discrimination can only be tested by indicting the drug stores selling the soft drinks between the hours prescribed, and not by alleging it as a defense to an indictment that other stores have violated this ordinance.</p> <p>2. Municipal Corporations — Statutes—Ordinances—-Sunday Closing — Unreasonable Regulation — Drug Stores — Other Commodities — Constitutional Law.</p> <p>An ordinance of a town may, under the provisions of the Revisal, sec. 2923, prohibit the opening of all places of business on Sunday, except drug stores; and it is not an unreasonable regulation, under the police power of the town, inasmuch as drug stores are open all day Sunday, for the governing authorities to further provide that they may sell articles of common use which are quasi necessities to many, such as mineral waters, soft drinks, cigars and tobacco only, between certain hours of that day.</p> <p>3. Municipal Corporations — Ordinances—Sunday Closing — Interpretation of Statutes.</p> <p>Revisal, sec. 2836, forbidding “work in ordinary callings on Sunday," under a penalty of $1, does not make keeping open shop and selling goods on Sunday an indictable offense, and an ordinance of a town, passed in pursuance of Revisal, sec. 2923, for the better government of the town, prohibiting keeping open stores and other places of business on Sunday for the purpose of buying and selling, excepting ice, drugs and medicines, and permitting drug stores to sell soft drinks, etc., within certain hours, is not objectionable on the ground that the offense is covered by Revisal, sec. 2836, for the ordinance is passed under the police powers of the town, its violation is indictable, and in furtherance of local government, which the statute contemplates.</p> <p>4. Municipal Corporations — Ordinances—Yalid in Part — Constitutional Law.</p> <p>A town ordinance which is valid in part as a police regulation, regarding Sunday hours, will not be held invalid because of a further and unconstitutional provision or exception from its general terms.</p>

Appeal by defendant from Allen, J., at May Term, 1915, of CUMBERLAND. Criminal action. Defendant was charged in the recorder’s court with unlawfully selling wine, upon the following affidavit: A. B. Breece, being duly sworn, complains and says, upon information and belief, that at and in said county, and in Rockfish Township, on or about 12 December, 1914, J. II.

<p>1. Roads and Highways — Working Roads — Payment of Money — Statutes— Constitutional Law.</p> <p>A statute imposing a duty upon citizens of a township or road district between the ages of 21 and 45 years to work the public roads therein is constitutional and valid, and the act may make it optional that the citizens either work the roads when notified under the terms of the statute or pay a sum certain in lieu thereof to be applied to the working of the roads.</p> <p>2. Same — Taxation—Constitutional Equation.</p> <p>A statutory requirement that citizens of a township or road district shall work the roads therein for four days or pay a sum of $4, to be used for that purpose, is not a capitation tax or subject to the constitutional equation.</p> <p>8. Boads and Highways — Working Boads — Public Policy — Statutes.</p> <p>The working of public roads in the State or requiring payment of money in lieu thereof is a part of the public policy of the State within legislative control.</p>

Appeal by tbe State from Whedbee, J., at July Term, 1915, of ROBESON. Tbe defendant, a landlord, is charged with unlawfully seizing tbe crop of bis tenant, tbe material parts of tbe warrant alleging that he “did unlawfully, willfully, knowingly, and without process of law, and unjustly, seize tbe growing ciops and tbe premises thereof, of him, tbe said Charlie Lowrie, bis tenant, when there was nothing due him, tbe said R. 0.

Appeal by defendant from Cline, J., at August Term, 1915, of Rock-INOHAM. Criminal action. The defendant was indicted for obtaining a note by false pretense. When- the case was here before (169 N. 0., 326) the indictment was for obtaining money by the false pretense, while the evidence showed that it was not money but the note that had thus been procured, and holding that there was a material variance, as will appear from a reading of the ease, we directed a nonsuit.

<p>Appeal by defendant from 8haw, J., at September Term, 1915, of Guilford.</p>

<p>Appeal by defendant from Rountree, J., at June Term, 1915, of PENDER.</p>

<p>Appeal by defendant from Rountree, J., at January Term, 1915, of ANSON.</p>

Appeal by defendant from Lyon, J., at April Term, 1915, of GfrriL-eoed. Indictment for stealing a stack of bay. There was a verdict of guilty; judgment on the verdict, and defendant appealed on the alleged ground that he was not present at the time the verdict against him was rendered.

Appeal by defendant from Devin, J., at April Term, 1915, of Anson. The defendant is indicted for a violation of section 3434 a of the Revisal, in that he obtained board without paying therefor, with intent to defraud.

<p>Appeal-by defendant from Long, J., at March. Term, 1915, of GastoN.</p>

<p>1. Homicide, — Mistaking- Deceased’s Identity — Bobbery—Evidence.</p> <p>Where upon a trial for a homicide there is evidence tending to show that the defendants laid in wait along a country road in the dark of the evening and killed the deceased and robbed him; that he was driving a bay horse to a top buggy at the time, and that another person, an employee of a railroad, had been paid $125 by the railroad company at its usual time for paying off its employees, which custom was known in the city, a railroad center, it is competent to show that such employee also owned and drove a bay horse to a top buggy and had gone along the road ahead of the deceased, especially when there is evidence of declarations by the accused that they had missed their man, who had gone on ahead driving a bay horse.</p> <p>2. Same — Motive.</p> <p>Where the evidence upon a trial for murder tends to show that the accused in the dark of the evening killed the deceased under the mistake that he was another whom they intended to rob, it is not necessary that motive for the homicide be shown.</p> <p>8. Homicide^ — Lying in Wait — Murder, Eirst Degree — Concealment—Dark— Evidence.</p> <p>For a homicide committed by “lying in wait” to be murder in the first degree it is not necessary that the accused should have concealed himself at the time, and it is sufficient if he placed himself alongside a country road after the dark of the evening, when he could not be recognized by one eight or ten feet off, and killed the deceased while he was passing the place.</p> <p>4. Homicide — Murder, First Degree — Evidence—Identity of Accused — Instruc» tions — Trials.</p> <p>Where all the facts in evidence tend to show that a murder in the first degree had been committed, and the issue of fact for the jury is only one of identity of the accused, a charge of the judge that the jury should return either a verdict in the first degree or acquit the accused, when the burden and degree of proof are properly placed and defined, is a correct one.</p> <p>5. Same — Polling Jurors — Answers of Jurors.</p> <p>Where the court has correctly charged the jury, upon the evidence, on a trial for homicide, that their verdict should find the accused “guilty of murder in the first degree or acquit him,” and in rendering the verdict the foreman gave the answer “Guilty,” and, replying to the question of the court, said “Guilty of murder in the first degree,” and, upon polling the jurv at tbe request of the prisoner, each juror answered “Guilty,” without defendant’s request for further reply, a judgment of guilty of murder in the first degree is properly entered.</p>

Appeal by defendant from Shaw, J., at May Term, 1915, of Rowan. Indictment for murder. The defendant was charged with the murder of Lucinda Price. It appears that he had a wife, who lived in Charlotte, and that he had for some time previous to the homicide been living in Salisbury with the deceased.

<p>Appeal by the State from Garter, J., at July Term, 1915, of Stahxy.</p> <p>Criminal action. Defendant, John'Earnhardt, was indicted in the Superior Court for having worked Walter J. Kennedy on the chain-gang of the township mentioned in the indictment without requiring him to wear the uniform of a convicted felon, contrary to the statute, and was tried at said term, whereupon the jury returned a special verdict as follows:</p> <p>“1. At November Term, 1914, of Stanly Superior Court, W. J. Kennedy was duly convicted of manslaughter and sentenced to work for a term of six years on the chain-gang for North and South Albemarle townships.</p> <p>“2. On or about 13 May, 1915, W. J. Kennedy wa.s turned ewer to tbe chain-gang and began working out his sentence, and has worked on the chain-gang continuously since said date.</p> <p>“3. John Earnhardt, the defendant above named, is the superintendent in charge of the chain-gang and also in charge of W. J. Kennedy, and has been working W. J. Kennedy on the chain-gang ever since the resignation of N. 0. Cranford, superintendent.</p> <p>“4. John Earnhardt, superintendent of said chain-gang, has not required W. J. Kennedy to wear the uniform prescribed to be worn by felons, and that W. J. Kennedy ha.s not worn said uniform, but has been permitted to wear citizen’s clothes, although John Earnhardt has been notified of chapter 64, Public La'ws 1911.</p> <p>“5. North and South Albemarle townships’ chain-gang was duly created by chapter 33, Public-Local Laws of North Carolina, Session 1913, and that the laws governing the working of convicts on said chain-gang are as prescribed therein and in chapter 71 of Private Laws, Session 1907, creating the Albemarle chain-gang, and the general law of the State.</p> <p>“6. That a copy of the judgment of the court sentencing W. J. Kennedy is hereto attached and made a part of the facts as found by the jury. _</p> <p>_ “If upon the foregoing facts the court be of the opinion that the defendant is guilty, the jury so find; otherwise, they find him not guilty.</p> <p>“Upon the foregoing special verdict of the jury, the court being of opinion that the defendant wa,s not guilty, so adjudged, whereupon the State appealed after having duly excepted.”</p>

<p>1. Homicide — Confessions—Threats of Lynching- — Consequent Pacts.</p> <p>Confessions of murder made by the accused, under threats of lynching, of which he was aware, will not be received in evidence against him on the trial, though incriminating matters brought to light in consequence thereof are competent, as, in this case, where robbery as well as a homicide was committed, the finding of identified money, the bloody stick used, and the stem and roots of the bush from which the stick had been cut, bearing upon other evidence tending to fix the crime upon the accused.</p> <p>2. Homicide — Evidence1—Voluntary Confessions.</p> <p>Voluntary confessions of murder made by the accused to the officer in charge, while in jail, are competent evidence against him on the trial; and this rale of evidence is not affected hy the fact that the prisoner had previously made confessions, in another State, of the crime, when threatened with being lynched there.</p> <p>S. Same — Several Prisoners — Competency as to Each.</p> <p>Voluntary confessions made by two prisoners accused of murder are competent as evidence upon the trial when confined by the court to the prisoner making them, or made by one in the presence of the other.</p> <p>4. Court’s Discretion — Separation oí Witnesses — Witness Sot Separated — Evidence.</p> <p>Where the court has ordered the witnesses separated on the trial for a homicide, and permits a witness for the State to remain in the courtroom while the others were testifying, and then give his evidence, the act of the court in so doing is a matter within its discretion, and not reviewable on appeal.</p> <p>5. Evidence — Footprints—Admissions—Corroboration.</p> <p>Evidence of the identity of tracks made at the' scene of the crime with those made by the accused, being tried for murder, is competent, especially when corroborated by his confession.</p> <p>6. Evidence — Motions to Strike Out — Appeal and Error — Objections and Exceptions — Court’s Discretion.</p> <p>It was discretionary with the trial judge to refuse to strike out testimony which has been admitted without objection, on the ground urged for error; and where money had been found at a certain house in consequence of a confession previously made by the prisoner on trial for murder, and the fact was relevant to the inquiry, a question asked by the court, assuming that the prisoner hid it there, and without objection at the time, except on a different ground than that urged on appeal, will not be held as reversible error.</p>

Appeal by defendant from Devin, J., at April Term, 1915, of RICHMOND. • Criminal action. Tbe defendant was convicted, and from tbe sentence of tbe court appeals.

Appeal by defendant from Lane, J., at August Term, 1915, of CABARRUS. Indictment for unlawful trespass on land, under Bevisal, sec. 8688.

Appeal by defendant from Lane, J., at July Term, 1915, of MONTGOMERY. Indictment for murder. Tbe defendant was convicted of murder in tbe second degree and sentenced to tbe penitentiary, and from tbe judgment appeals.

<p>Appeal by defendant from Harding, J., at February Term, 1915, of ■Catawba.</p>

Appeal by defendant from Lyon, J., at June Term, 1915, of Guileoed. Indictment for violation of section 2 of the Search and Seizure Law and for unlawfully having spirituous liquor in possession for purposes of sale, tried on appeal from municipal court. Defendant was convicted and, from judgment on the verdict, appealed to the Supreme Court.

Appeal by defendant from Blum, J., at August Term, 1915, of Bubee. Indictment for seduction under promise of marriage. The defendant was convicted and sentenced to the penitentiary, and from the judgment rendered, appeals to this Court.

Appeai by defendants from Harding, J., at March Term, 1915, of WlLKES. This is an indictment for forcible trespass. Tbe defendants, employees 5f a railroad company, were engaged in- grading tbe right of way across tbe lands of Jesse Dula, brother of tbe prosecuting witness. They owned adjoining tracts of land on tbe southwest side of Elk Creek. Tbe prosecuting witness also owned land on tbe other side of tbe creek, where be lived.

Appeal by defendant from Long, Jat July Term, 1915, of Buit-COMBE. Criminal action for unlawfully selling liquor, commenced before the police court of the city of Asheville and carried by appeal of defendant to the Superior Court, where he was convicted and appealed to this Court from a judgment that he be imprisoned for eight months and work on the public roads.

Appeal by defendant from Webb, J., at July Term, 1915, of Hat-wood. Indictment for murder. The defendant was tried for murder in the second degree and convicted of manslaughter, and from the judgment rendered appealed.

<p>1. Appeal and Error — Assault—Deadly Weapon — Question of Law — Harmless Error — Criminal law.</p> <p>As to whether a weapon used in making an assault is per se a deadly weapon may depend upon its size and character, the manner of its use, the size and strength of the person using it, and the person upon whom it is used; and the trial judge in this case, wherein a rock the size of a man’s fist was used, having submitted the question to the determination of the jury, under correct instructions, any error he may have committed in not holding the rock to be a deadly weapon as a matter of law is cured by an affirmative finding of the jury.</p> <p>2. Assaults — Arrests—Warrants—Officers—Criminal law.</p> <p>An officer of the law authorized to make arrests for its violation is not required to show his warrant for the arrest if he is known as such to the person being arrested by him.</p> <p>3. Arrest — Resisting Officer — Assault—Justification—Criminal Law.</p> <p>An officer having a warrant for the arrest of an alleged offender was temporarily without his warrant when the arrest was made, and the offender, without requiring that the warrant he shown him, went along peaceably and without resistance; but his brother, running up, demanded that the warrant be shown, and this not being done, he struck the officer with a rock the size of his fist and knocked him down. Held, the brother in thus making the assault acted without legal excuse or justification.</p> <p>4. Courts — Expression of Opinion — Statutes—Appeal an'd Error.</p> <p>Where the prisoner is indicted for an assault upon an officer, and it appears that the assault was made while the officer was arresting another person, it is reversible error for the trial judge to charge the jury that the defendant would have been guilty of resisting an officer in the discharge of his duties had the indictment so charged, when the evidence is conflicting, for such is an intimation of opinion by the judge prohibited by our statute.</p>

<p>1. Homicide — Murder—Solicitors—Demand for Conviction in Second Degree— Trial — Capital Felony.</p> <p>Where tbe defendant is indicted for murder in tbe first degree and tbe solicitor at tbe time of calling tbe case for trial announces be will not ask for a verdict in tbe first degree, and an entry of record is accordingly made, tbe trial is not for a capital felony.</p> <p>2. Homicide — Harder—Mistrials—Court’s Discretion — Appeal and Error.</p> <p>Where, without the knowledge of the court or tbe parties, and after the jury has been selected, sworn, and impaneled, it is discovered that one of them is disqualified to act, for nonresidence in tbe State, and the trial is for a homicide less than a capital felony, it is within the sound discretion of tbe court to withdraw a juror and order a mistrial, which is not subject to review on appeal. If for a capital felony, the court may withdraw a juror and order a mistrial, when “necessary to attain tbe ends of justice,” and upon exception duly taken, find tbe facts, from which an appeal lies as a mátter of right. If no such exception is aptly taken, it is within the court’s discretion to permit, thereafter, the objecting party to challenge tbe juror.</p> <p>3. Criminal Law — Homicide—Trials—Mistrials—Orders of Court — Appeal and Error.</p> <p>The action of tbe trial judge, on a trial for homicide, in withdrawing a juror, discharging the other jurors, and again beginning the trial, is in effect an order for a mistrial, whether these words were used by the court or not.</p>

Appeal by Christy and Warren from Cline, J., at Inly Term, 1915, of Foestth. S. P. Christy, Ida Ball Warren, and Clifford Stonestreet were indicted for the murder of one G. J. Warren. The defendants Christy and Warren were found guilty of murder in the first degree, and appealed to this Court. The defendant Stonestreet was found guilty of being an accessory after the fact, and does not appeal.

Appeal by defendant from Webb, J., at July Term, 1915, of SwaiN. Indictment for murder. Before entering on the trial the solicitor announced that he would not ask for a verdict of murder in the first degree, and the issue was submitted on the question of murder in the second degree or manslaughter or excusable homicide.

Appeal by defendant from Long, J., at September Term, 1915, of Buncombe. Tbe defendant was indicted under tbe Searcb and Seizure Law, cb. 44, Laws 1933, for baving in bis possession for tbe purpose of sale, malt, vinous, and spirituous liquors.

Appeal by defendants from Harding, J., at April Term, 1914, of MONTGOMERY.