Volume 171 — North Carolina Reports

<p>1. Appeal and Error — Questions Keviewable — Nonsuit—Evidence.</p> <p>On appeal from a nonsuit tbe evidence must be taken as true.</p> <p>2. Trover and Conversion — Acts Constituting — Liability.</p> <p>An occasional employee, who took the employer’s mule at night and drove it off without the knowledge or consent of the employer, was guilty of a tortious conversion, and an act indictable under Revisal 1905, sec. 3509; and where the mule died in his possession he was liable for its value, at least in the absence of any evidence in support of his claim that the death was accidental.</p>

<p>1. Evidence — Hearsay—Declarations.</p> <p>Declarations made by a person on a survey, in which, he was representing a third person and acting for him in a controversy, not between plaintiff and defendant, or their ancestors in title, but between defendant and the third person, were incompetent, where they were in the interest of the third person.</p> <p>2. Adverse Possession — Evidence—Sufficiency.</p> <p>Evidence 7ield to sustain a finding that plaintiffs had been in the adverse possession of a strip of land for the statutory period.</p> <p>8. Appeal and Error — Questions EeviewaWe — Questions Hot Raised in Trial Court.</p> <p>It is too late on appeal to raise a question by exception to the charge, entered after trial, which if made at the time could have been cured by proof, which was not offered owing to an admission of appellant. An exception to a charge, that the court erred in charging that twenty years adverse possession was sufficient, raised for the first time on appeal, is equivalent to an exception after trial that the judge did not charge that the evidence was not sufficient to go to the jury, and cannot be entertained.</p>

Appeal by plaintiff from Whedbee, J., at March Term, 1915, of Oubbituck. Quo luarranto by tbe State, on tbe relation of P. N. Bray, against T. ~W. Baxter. Judgment for respondent, and tbe relator appeals.

Appeal by plaintiff from Justice, J., at January Term, 1915, of PASQUOTANK. Plaintiff appeals. This is an action to recover $600 .for tbe wrongful conversion of a horse or for the wrongful conversion of the proceeds of the sale of the horse.

<p>1. Carriers — Carriage of Passengers — Contract of Carriage — Performance.</p> <p>Where a railroad sold transportation between two points, it being necessary for the passenger to change, for the performance of the road’s contract, the conductor, after taking up the passenger’s ticket, should return it to him before reaching the changing point, or give him something in place thereof that the new conductor would accept for passage to destination.</p> <p>2. Carriers — Carriage of Passengers — Action for Ejection — Contributory Negligence.</p> <p>Where passenger bought a ticket to a point to reach which it was necessary to change, if the company, in the passenger’s action for ejection from the train because he had no ticket acceptable on the train to which he changed, claimed that the passenger wa's guilty of contributory negligence in not having demanded the return of his ticket from the conductor on the first train, such charge should have been pleaded as contributory negligence, and issue tendered.</p> <p>3. Carriers — Carriage of Passengers — Ejection—Negligence of Conductor.</p> <p>Where plaintiff purchased through transportation to a destination to reach which it was necessary to change, and the conductor on the first train ¿neglected to return passenger’s ticket, he having no money, and, when the conductor of the second train asked for his fare, vainly attempted to borrow from men who had been on the first train with him, it was negligence on the conductor’s part not to have satisfied himself by inquiring of such men whether plaintiff had been on the train with them prior to reaching the changing point, before ejecting plaintiff.</p> <p>4. Carriers — Carriage of Passengers — Wrongful Ejection — Payment of Pare— Duty of Passenger.</p> <p>Under Revisal 1905, see. 2611, providing that every railroad corporation shall transport passengers on due payment of the fare legally authorized for the trip, where a passenger is about to be wrongfully ejected from a train, having paid his fare thereon, but being unable to produce his ticket, it is not incumbent on him, by paying money which the conductor has no right to exact, to avoid ejection from the train, as he is not required to buy again his right to remain on the train to his destination.</p> <p>5. Carriers — Carriage of Passengers — Refusal of Double Pare — Bights of Parties.</p> <p>Where a railroad passenger cannot produce a ticket on the conductor’s demand, the road and the passenger can each stand upon their rights. The road can eject the passenger, subject to liability if be has paid bis fare, and the passenger to suffer ejection, subject to his right to recover if it was wrongful.</p> <p>0. Carriers — Carriage of Passengers — Wrongful Ejection — Bight of Action— Statute.</p> <p>Under Revisal 1905, sec. 2611, providing that every railroad shall start and run their cars for the transportation of passengers, and shall take, transport, and discharge such passengers at, from, and to usual stopping places on due payment of the fare legally authorized, and shall be liable to the party aggrieved in an action for damages for any neglect or refusal in the premises, plaintiff passenger, ejected from train of defendant road for failure to pay again fare which he had paid once upon purchasing ticket, had a right of action.</p> <p>7. Carriers — Wrongful Ejection — Damages.</p> <p>Where a railroad wrongfully ejected a passenger at night in a desolate country, without money or friends, forcing him to walk 30 miles to his destination, he was entitled to recover for the humiliation and wrong done him by his ejection and the damage caused by his enforced walk without food.</p>

<p>1. Trial — Issues—Submission.</p> <p>Tbe form of issues submitted is of little consequence, if they submit tbe questions involved, and under tbem evidence is introduced by both parties presenting tbeir sides of tbe controversy.</p> <p>2. Navigable Waters — Water Rights — Wharves.</p> <p>. Under Revisal 1905, sec. 1696, declaring that persons owning lands on any navigable water may, for the purpose of erecting wharves, make entries of the lands covered by water adjacent to their own, the low-water mark in a navigable stream in which the sea tides do not ebb and flow is the boundary of the adjacent land, though the height of the water fluctuated according to the winds.</p>

<p>Appeal by defendant from Whedbee, J., at Marcb Term, 1915, of ChowaN.</p> <p>Tbis is a civil action, tried upon these issues:</p> <p>1. Is tbe plaintiff tbe owner and entitled to tbe possession of tbat portion of tbe land described in tbe complaint wbicb is embraced witbin tbe lines 9, 8, 10, 5, 4, 11, 12, 13, 1, to 9, on tbe map, or any part thereof, and, if so, what part? Answer: “Yes; tbe whole thereof.”</p> <p>2. If “yes” to tbe first issue, has defendant trespassed upon .the same, as alleged? Answer: “Yes.”</p> <p>3. What damages, if any, is plaintiff entitled to recover of-defendant? Answer: “$5.”</p> <p>From the'judgment rendered, tbe defendant appealed.</p>

Appeal by defendant from Garter, J., at April Term, 1915, of Nash. The ease was tried upon this issue: 1. Is the defendant indebted to plaintiff; and, if so, in what amount ? Answer: “$23.43, with interest from 18 January, 1913.” From the judgment rendered, the defendant appealed.

<p>1. Specific Performance — Part Performance — Sale of Realty.</p> <p>The doctrine of enforcing a parol contract to convey land on the ground of part performance does not prevail in North Carolina.</p> <p>2. Vendor and Purchaser — Parol Sale — Repudiation—Effect.</p> <p>Where the owner of land makes a parol contract to sell it, he cannot repudiate the agreement and retain benefits received, whether money on the purchase price or the enhanced value of the land by reason of improvements.</p> <p>3. Trusts — Parol Agreement — Transferring Land.</p> <p>Where there was a verbal agreement between plaintiff, defendant, and the party conveying the land to the plaintiff, that the plaintiff, on payment of the price to him by defendant, should convey to the defendant, there was a valid and enforcible parol trust in defendant’s favor.</p> <p>4. Vendor and Purchaser — Parol Contract of Sale — Recovery for Improvements.</p> <p>Where defendant, vendee of land under a parol contract repudiated by the vendor, sought to recover for improvements, seeking relief under the general principles of equity, it was no objection that defendant showed no color of title, as required in a proceeding under Revisal 1905, sec. 652, providing that any defendant against whom a judgment shall be rendered for land may, before execution, petition the court, stating that he, while holding the premises under color of title, made permanent improvements, etc., and that a jury may assess plaintiff’s damages and defendant’s allowances for improvements.</p>

Appeal by defendants from Carter, J., at November Term, 1914, of Camdew. Civil action of trespass to realty, involving also the right to an injunction, tried on an issue as to title.

<p>Fish, and Oysters — Unsafe Condition — Knowledge—Duty of Packer — Negligence — Evidence—Questions for Jury — Trials.</p> <p>Where the packer of salt fish puts this article of food on the market for sale in a dangerous condition it is its duty to protect the public from the consequences thereof, when it should have known the danger from the circumstances or is afterwards informed thereof; and where the retail dealer has sold the plaintiff’s intestate fish from a shipment from the packer, which had theretofore made its customers in several localities sick, resulting in the death of one of them, of which the packer had been informed, and there is further evidence that there was a delay by the defendant in cleaning and packing the fish for thirty-six hours after they were placed on the wharf in the month of September, and that except for the unreasonable delay of the defendant (packer) in notifying the retailer, by telegram or otherwise, the intestate’s death might not have ré-sulted, the defendant is liable for negligence.</p>

Appeal by defendant from Rountree, J., at October Special Term, 1915, Of WASHINGTON. Oivil action tried upon these issues: 1. Was the ditch described in complaint a drain ditch for a part of the locality embraced by the town of Roper and some of its streets at time said town was incorporated? Answer: “Yes.” 2. Had said drainage ditch existed and was same used for said drainage for the past thirty years? Answer: “Yes.” 3.

Appeal by defendant from GooTee, J., at December Term, 1915, of OhowaN. Civil action to recover damages to plaintiff’s land and crop.s grown thereon by the construction of defendant’s road through said land and by alleged negligent failure to keep open the culverts under the roadbed. On denial of liability, the jury rendered the following verdict: 1. Is the plaintiff the owner of the land described in the complaint? Answer: “Yes.” 2.

<p>Civil actioN to recover damages for personal injury, beard by Bond,, J., at January Term of Washington, on a motion to remove tbe case for trial to Martin County.</p> <p>It appears from tbe complaint, made a part of tbe case on appeal, tbat defendant is a fraternal insurance society, having separate lodges in this State, one in Washington County and one in Martin County, tbe members paying initiation fees, and dues, and - taking insurance for premiums, tbe defendant, in this respect, not being unlike other fraternal insurance societies.</p> <p>Plaintiff alleges tbat while being initiated as a member of tbe subordinate lodge at Jamesville in Martin County be was assaulted and subjected to rough treatment, being severely shocked by a current of electricity, which resulted in serious and permanent injury to him.</p> <p>Defendant, before answering, asked that the case be removed for trial to Martin County, where plaintiff resides, and where the cause of action arose, plaintiff contending that the action was properly brought in Washington County, as defendant is a nonresident corporation, and usually did business in Washington County at the time this action was brought and the injury was inflicted. For the purpose of passing upon the motion, the following facts were admitted by the parties:</p> <p>1. The plaintiff was at the time that the action was commenced, and now is, a resident of Martin County, and the defendant is a nonresident corporation, being the only defendant.</p> <p>2. The defendant when suit began had, and now has, subordinate lodges in different places, one of which is in Martin County, one in Washington County, and others in various other counties.</p> <p>3. The cause of action, if any ever existed, arose in Martin County.</p> <p>4. The subordinate lodges in various counties each has authority, through its officials, to collect fees due to the head lodge, which is the defendant.</p> <p>The court removed the case to Martin County, and plaintiff appealed.</p>

Appeal by plaintiff from Cooke, J., at September Term, 1915, of PASQUOTANK. Civil action to recover $117, alleged to be due for services rendered after the death of the intestate of the defendant and before the qualification of the defendant as administrator. The defendant denied that there was any amount due the plaintiff and, in addition, pleaded an estoppel by former judgment.

<p>Appeal by defendant from Cooke, J., at October Term, 1915, of Beaueokt.</p> <p>Oivil ac.tion, tried upon these issues:</p> <p>1. Did tbe defendant wrongfully refuse to deliver to tbe plaintiff tbe shipment of wire fencing referred to in the complaint? Answer: “Yes.”</p> <p>2. If so, what damages, if any, did the plaintiff sustain thereby? Answer: “$200.”</p> <p>From the judgment rendered, defendant appealed.</p>

Appeal by defendant from Rountree, J., at November Term, 1915, of Edgecombe. Civil action, beard on case agreed.

Appeal by plaintiff from Bond, J., at April Term, 1915, of WayNE. Civil action.

<p>1. Municipal Corporations — Cities and Towns — Animals at large — Ordinances — Nuisance.</p> <p>An ordinance oí a town in a county not having the fence law declared the running at large of hogs, etc., within the town limits a nuisance and provided for impounding them, and imposed a penalty upon the owner, together with a charge for the cost of keeping them. Held, the ordinance applied to owners who resided in the county as well as those residing in the town, and is a valid, one.</p> <p>2. Same — Charge for Impounding- — Statutes.</p> <p>A town ordinance in a county not having the fence law declared the running at large of hogs, etc., within the town limits a nuisance, and provided for impounding them and collection of the cost of keeping them, as well as a penalty on tlie owner. The plaintiff lived in the county, and his hogs were taken up in the corporate limits of the town, were impounded, and he was charged the cost for keeping them. Held, the law recognizes the difference between imposing a penalty for the violation of the ordinance and a charge for keeping up the hogs. Revisal, secs. 1679, 1682.</p> <p>3. Municipal Corporations — Cities and Towns — Animals at Large — Nuisance— Particular Instances.</p> <p>Permitting hogs to run at large within the corporate limits of a-town in violation of a town ordinance is a nuisance, and where the ordinance itself so declares, it is unnecessary, in order to convict for a violation thereof, to show that any particular instance amounted to a nuisance.</p>

This'is a motion to remove this cause, made before Lane, J., at December Term, 1915, Superior Court of Randolph. The motion was overruled, and defendant’ appealed.

<p>Appeal by defendant from Peebles, J., at September Term, 1915, of ChowaN.</p> <p>Oivil action to recover damages for alleged breach of contract on part of the defendant in failing to deliver 25,000 burlap bags, whereby plaintiff was greatly damaged.</p> <p>On denial of liability, verdict was rendered as follows:</p> <p>1. Was defendant’s failure to deliver these bags to the plaintiff caused by conditions or circumstances beyond the defendant’s control, as alleged ?</p> <p>2. What damage, if any, is plaintiff company entitled to recover?</p> <p>The jury answered the first issue “No” and the second issue “$1,000 and interest.”</p> <p>Judgment on the verdict for plaintiff, and defendant excepted and appealed.</p>

<p>I. Carriers of Goods — Live Stock — Damages — Weather Conditions — Improper Cars — Instructions.</p> <p>In an action to recover damages against a railroad company for its negligence in transporting a car-load shipment of live stock, when there is conflicting evidence as to whether the damages were caused by an improper car or by the condition of the weather, an instruction not as full or explicit as it might have been, but which gave the defendant the benefit of any finding that the injury to the animals was not due to its negligence, but solely to the condition of tbe weather, is not reversible error on defendant’s appeal.</p> <p>2. Carriers of Coeds — Negligence — Live Stock — Improper Cars — Shipper’s Inspection.</p> <p>A railroad company is not relieved of its liability for damages arising to a car-load shipment of live stock, caused by the selection of an improper car, because of the fact that the shipper had examined the car and accepted it as suitable and sufficient.</p> <p>3. Carriers of Goods — Live Stock — Negligence—Evidence.</p> <p>Where the evidence tends to show that a railroad company had received a .car-load shipment of live stock in good condition,’ and delivered it at destination with the animals in bad condition, the jury may reasonably and fairly infer that the damages were caused by the defendant’s negligence.</p> <p>'4. Carriers of Goods — Live Stock — Damages — Injury — Written Notice — Waiver.</p> <p>The stipulation in a bill of lading issued by the railroad company for the interstate transportation of live stock, requiring that written notice of any claim for damages be given the company before removal of the stock at place of destination, is waived by the actual knowledge of the carrier’s agent of the condition of the stock before the removal took place, or such knowledge will be considered as in substitution of the written notice.</p> <p>5. Commerce — Interstate—Carriers of Goods — Live Stock — Limited Valuation — Measure of Damages — Statutes.</p> <p>Where a shipment of animals in interstate commerce was made before the enactment of the Cummins amendment (4 March, 1915) under a livestock bill of lading which stipulates that in consideration of a less rate of freight the value of each animal shall not exceed $100, the valuation to be made at the point of shipment, the measure of damages for injury to the stock caused by the negligence of the defendant must be based upon a valuation not exceeding $100, and the jury should determine to what extent the animals were damaged or their value impaired, assuming $100 to be the limit of value as to each one of them, and assess the damages accordingly, the true value of the animals to be ascertained at the place of shipment, as required in the bill of lading.</p> <p>6. Appeal and Error — Instructions—Objections and Exceptions.</p> <p>Where damages to a car-load shipment of live stock, caused by the negligence of a railroad, with an agreed limited valuation, are to be determined by a jury in accordance with the valuation at the point of shipment, under .the bill of lading issued therefor, and it is clearly implied in the charge of the court that the damages should accordingly be determined, and no exception to the charge is taken in this respect, a new trial will not be granted on appeal.</p> <p>7. Appeal and Error — Instructions Requested — Correct in Part.</p> <p>It is not reversible error for the trial judge to refuse a special request for an instruction which, though correct in part, is in some respect objectionable. The instruction must be correct as a whole.</p>

<p>Appeal by caveators from Devin, J., at October Term, 1915, of Lee.</p>

Appeal by defendants from Bond, Jupon a case agreed at November Term, 1915, of Beetle.

Appeal by defendant from Rountree, Jat November Term, 1915, of WlLSON. Civil action to recover damages for breach of a contract of warranty in the sale of a piano. The contract was in writing and was signed by the husband of the plaintiff, apparently in his own right, but the plaintiff introduced evidence tending to prove that it wa.s her contract, and that her husband was acting as her agent in signing it.

Appeal by plaintiff from Devin, J., at November Term, 1915, of HARNETT. Civil action beard on motion to dismiss defendant’s appeal from tbe recorder’s court.

<p>Civil action commenced before a justice of the peace and tried on appeal at November Term, 1915, of PasquotaNK, before Cooke, J., upon this issue:</p> <p>Is plaintiff entitled to recover the $200 sued for in this action? Answer: “Yes.”</p> <p>Tbe court rendered judgment against botb defendants. Tbe Board of Education only appealed.</p>

.Appeal by plaintiff from Goohe, J.', at November Term, 1915, of PasquotaNK. Civil action to recover damages for physical -injuries arising from alleged negligence of the defendant. . There was evidence on part of plaintiff tending to show that plaintiff, a young man 23 years of age, was working as a craneman for a dredging company near Lake Drummond. Plaintiff had been working for defendant about three months when he was hurt.

Civil actioN from Harnett, beard by Lyon, J., on 12 January, 1916, upon a motion to continue to the hearing a restraining order previously issued by Judge Daniels, for the purpose of enjoining the issue of certain water-works and sewerage bonds to the amount of $25,000. The town of Lillington was authorized by Private Laws 1911, ch. 283, to issue bonds to the amount of $15,000, bearing interest at a rate not exceeding 5 per cent, for water-works and sewerage purposes.

Civil actioN tried before Bond, J., on case agreed, at January Term, 1916, of PasquotaNK. This is an action to recover an automobile or a part of tbe proceeds of its sale, tried on tbe following agreed statement of facts: 1. Tbat on or about 23 April, 1915, one Eicbard C. Webb was tbe owner of a Ford touring car No. 566967, purchased of tbe Auto and Gas Engine Works of Elizabeth City, N. 0. 2.

<p>Appeal by plaintiff from Devin, J., at October Term, 1916, of WatNs.</p>

Appeal by defendant from Lyon, J., at October Term, 1915, of VaNoe. Civil action to recover damages for negligently burning plaintiff’s woods. There was a verdict and judgment for plaintiff. Defendant appealed.

<p>1. Counties — Process—Pleadings—Commencement of Actions — Statutes.</p> <p>While Revisal, sec. 1310, provides that a county must he sued in its own name, the corporate powers and authority of the county are exercised by its hoard of commissioners, Revisal, sec. 1309; and where in an action by the county physician to recover for services alleged to have been rendered the county, the summons is issued to the board of commissioners of the county (Code, sec. 704), and the cause of action is unmistakably and plainly alleged against the county, and not personally against its individual commissioners, the cause of action will be taken as having commenced from the issuance of the summons. Semble, the wording in the summons as to the board of commissioners, preceding the name of the county, will be treated as surplusage.</p> <p>2. Same — Limitation of Actions.</p> <p>Where the summons against a county has been issued to the board of commissioners of the county, and the cause of action alleged is against the county, and the judge of the Superior Court has permitted an amendment, and process has been served upon the county by name (Revisal, sec. 1310), but after the time prescribed for bringing the action, the bar of the statute cannot be successfully pleaded if the summons to the commissioners of the named county has been served in time.</p> <p>3. Counties — Corporations—Contracts—Services Requested — Quantum Meruit.</p> <p>In plaintiff’s action to recover for services alleged to have been rendered the county, the defendant’s liability, as in other such actions against corporations, depends upon whether an express contract has been made by the parties, stating the compensation, in which event the recovery will be according to its terms and the facts established; or if the services had been requested, without stating compensation, it would be for their reasonable value, if rendered, as upon a quantum meruit.</p>

<p>Appeal by defendants from. Bond,, J., at October Term, 1915, of CARTERET.</p>

Appeal by defendant from Bond> J., at April Term, 1916, of JOHNSTON. Civil action, beard upon exceptions to report of referee. Upon tbe bearing tbe judge allowed all of plaintiff’s exceptions to tbe report, and found tbe facts himself and rendered judgment for plaintiff. Defendant excepted to tbe judgment and appealed.

<p>Parties — Infants—Partition—Estoppel.</p> <p>Where an infant residing with his grandmother has an interest in lands the subject of proceedings for partition, and was not properly represented therein, but his grandmother was a party thereto; and in such proceedings a division is made, allotting to the grandmother and himself her share as well as that of the infant; and after coming of age he joins in the conveyance, or executes a quitclaim deed to ■ certain of the lands allotted to his grandmother and himself and receives at least his share of the purchase price, he is estopped by his acts and conduct to deny the validity of the judgment entered in the former proceedings, or to question the same in another proceeding for partition brought seven years after he has reached his majority, especially where the rights of innocent parties have intervened.</p> <p>Walker, J„ dissenting.</p>

<p>Special proceeding beard by Whedbee, J., at December Term, 1915, OÍ GREENE.</p> <p>It appears that tbe petitioners, tbroug'b tbe Atlantic Coast Realty Company, bad on 3 November, 1913, sold, in small farms or parcels, certain lands wbicb they owned, to several parties, among them being tbe respondent N. C. Cunningbam, wbo purchased three of tbe lots at the price of $10,732.80. This was a private sale, that is, not made under any judgment or order of a court, but merely by tbe petitioners at public outcry, through tbe realty company.</p> <p>Petitioners afterward brought this proceeding for tbe purpose of having tbe land sold for partition among them, alleging in their petition that they are tenants in common of tbe land. They further allege that they bad sold tbe land in small lots through tbe realty company and that respondent bad purchased three of tbe parcels at $10,732.80. They prayed that said sale be confirmed and that a commissioner be appointed to execute title to tbe several purchasers at tbe sale upon payment of tbe purchase money. Tbe respondent was not a party to tbe proceeding and bis name was not mentioned in tbe same except as otherwise above set forth.</p> <p>Tbe proceeding was commenced before tbe clerk of tbe court, and be entered judgment confirming tbe several sales and appointed S. A. Wooten and M. E. Bizzell commissioners to execute deeds to tbe purchasers, and, further, for tbe distribution of tbe proceeds of tbe sale. On appeal tbe judgment of tbe clerk was affirmed by tbe Superior Court.</p> <p>At February Term, 1914, petitioners filed an affidavit in wbicb they alleged that tbe said sale bad been made and that N. O. Cunningbam bad purchased three of tbe parcels of land for $10,732.80, and at the-time of tbe sale bad deposited 10 per cent of bis bid, or $1,073.28, with one W. G. Carr, and that tbe sale to respondent bad been approved and confirmed by tbe court; that tbe deposit with Carr was made for tbe purpose of insuring a compliance by Cunningbam with tbe bid by making tbe other payments and receiving a deed for bis lots, and that a tender of a good and sufficient deed bad been made by tbe commissioners appointed and authorized by tbe court to make tbe same. Tbe petitioners prayed tbat judgment be entered against the respondent for the amount of his bid, $10,732.80, with interest, less the amount of the deposit, $1,073.28, which should be retained by the commissioners, and further, that if respondent failed to pay the balance due by him, the land be sold and the proceeds of the sale applied to the payment of the judgment, including costs and expenses, and for further and general relief. Notice of the motion, or petition, was duly given to the respondent and he came in under a general appearance and answered, among other things, that he had declined to comply with his bid “because there was a shortage of thirteen (13) acres in the tracts of land sold to him.” He was allowed to withdraw this answer and demur upon the grounds that the sale to him was invalid, as there were infants who were interested in the land, and the sale was not made in this judicial proceeding, and that the motion to bring him into this action is irregular and that the court cannot give the relief demanded against him. The court overruled the demurrer and .defendant appealed.</p>

Appeal by plaintiffs from Ferguson, J., at April Term, 1915, of HERTFORD. Civil action to recover damages for shortage in acreage in a tract of land bought by the plaintiffs from the defendants.

Appeal by defendant from Devin, J., at September Term, 1915, of J OHNSTON. Civil action, tried upon these issues: 1. Did tbe defendant negligently fail to deliver tbe message witb reasonable promptness, as alleged in tbe complaint? Answer: “Yes.” 2. -If so, did tbe acts and omissions constituting negligence occur in tbe State of North Carolina?. Answer: “Yes.” 3.

<p>1. Deeds and Conveyances — Consideration—Parol Evidence.</p> <p>While the recited consideration, in a deed to lands may not he contradicted so as to impair the validity of the conveyance, it may be varied by parol evidence as a receipt of the amount stated; and when such deed recites the consideration to be a certain sum, it may be shown by parol that the conveyance was made upon the further consideration that the grantee should satisfy an outstanding judgment against the mortgagor, so as to prevent him from taking an assignment thereof for his own benefit and thereunder selling the mortgagor’s lands.</p> <p>2. Same — Statute of Frauds.</p> <p>A petrol agreement in further consideration of that stated in a deed, that the mortgagee should pay off a judgment against the mortgagor, does not fall within the meaning of the statute of frauds.</p>

Appeal by defendants from Lyon, J., at January Term, 1916, of HARNETT. Civil action commenced on 29 November, 1915, to compel the defendants to execute a deed conveying a certain tract of land pursuant to an option executed by the defendants Hodges and wife to the plaintiff, which was duly registered. The option gave to the plaintiff the right to tender the money on or before 1 December, 1915, and to secure a deed for the land.

Appeal by plaintiff from Bond, J., at August Term, 1915, of Pitt. Civil action to recover the amount of a certain policy of insurance issued by the defendant insurance company on the life of Eason Matthews and payable to his estate. The administrator of Matthews is a party to- the action. The plaintiff claims that she is the owner of said policy by reason of an assignment made to her by the insured.

<p>Appeal by both, parties from Shaw, J., at Special June Term, 1914. of Staetly.</p>

Appeal by defendant from Connor, J., at August Term, 1915, of DupliN. Civil action brought to recover the interest of the plaintiffs in a tract of land which they alleged is owned by them and defendants as tenants in common. It was admitted that if plaintiffs own any interest in the land it is three-eighths, the defendant owning the remaining five-eighths.

Petition- to rehear cause decided by this Court at Spring Term, 1914, and reported in 166 N. 0., 104. Petition having been allowed, the cause was again duly considered and the former judgment affirmed.

Appeal by defendant from -Lyon, Jand a jury, at October Term, 1915, of YaNOe. Civil action to recover damages for the loss of certain wearing apparel. The plaintiff alleges that the defendant i.s liable as .a carrier of baggage, and, if not, that the wearing apparel was lost by reason of the negligence of the defendant. The defendant denies that the wearing apparel was ever delivered to it and also denies any liability to the plaintiff.

<p>Appeal by defendant from Bond, J., at November Term, 1915, of CRAVEN.</p> <p>Tbis is a motion by defendants 0. E. and Bessie G. Herrington to remove tbis cause to Carteret County. Tbe motion was denied, and said defendants appealed.</p>

<p>Deeds and Conveyances — Timber—Remaining Interests — Description.</p> <p>One having acquired one-third of the standing timber upon lands to be cut, etc., in ten years, afterwards acquired a deed from the then owner of the entire tract of land, in which the timber conveyed was described as “all the interest of the party of the first part in said timber, one-third of said timber having been conveyed,” etc., for a period of twenty years. Held, the grantee acquired full title of his grantor in all of the timber for the stated period of twenty years.</p>

Appeal by defendant from Connor, J-, at September Term, 1915, of SAMPSON. The suit was brought in order that the executor of L. P. Faison may be advised as to how to execute the trusts declared in his will, which is as follows: I, L. P. Faison, of the aforesaid county and State, being of sound mind, but considering the uncertainty of my earthly existence, do make and declare this my last will and testament. 1.

<p>1. Limitations of Actions — Pleadings—Amendments—Court’s Discretion.</p> <p>It is within the reasonable discretion of the trial judge to allow amendments to pleadings when their allegations are germane to the original action, involving substantially the same transaction and presenting no real departure from the demand as originally stated, and when allowed it shall have reference to the original institution of the action.</p> <p>2. Same — Magistrates’ Courts — Appeal—Carriers of Goods — Counterclaim.</p> <p>Where a carrier sues to recover its freight charges on a car-load of flour, before a justice of the peace, it is within the discretionary power of the Superior Court judge, on appeal, to permit the defendant to amend so as to allege damages, by way of counterclaim or offset, to the same shipment of flour, arising from the negligence of the carrier; and when allowed it will shut off the plaintiff’s plea of the statute of limitations when the suit, as originally constituted, had been brought in the time specified.</p>

<p>1. Statutes — Interpretation—Intent—Amendatory Acts.</p> <p>Where a statute refers to a prior legislative enactment, and in the caption and body of the act purports to he amendatory, substituting and amending different sections, the legislative intent cannot he construed to repeal the former act.</p> <p>2. Same — Drainage Districts — Deference to Sections — Mistakes.</p> <p>The legislative intent as gathered from chapter 238, Laws 1915, being to amend chapter 442, Laws 1909, relating to the establishment of drainage districts, it is held that section 2 of the later act, repealing, as printed, section 2 of the former one, should, by correct interpretation, refer to section 11, upon the same subject-matter, i. e., the assessment of damages, and not to section 2 as printed, which sets out in detail the requirements of the petition, the method of obtaining jurisdiction of the parties, and provides for the appointment of viewers and of a drainage engineer, evidently Roman numerals in-the later act being mistaken for the figure 11. Hence, the two acts should be construed together, so as not to repeal chapter 442, Laws 1909.</p>

Appeal by plaintiff from Bond, J., at October Term, 1915, of CRAVEN. Civil action tried upon these issues: 1. Did the defendant railroad wrongfully allow inspection of the car of bay at Bennettsville, S. C., by consignee MacLean & Croom? Answer: “No.” 2. Did defendant wrongfully allow inspection of the ear of bay at Robersonville, N. C., by consignee R. L. Smith & Co.? Answer: “No.” 3.

<p>1. Corporations — Subscriptions—Special Terms — Conditions Precedent — Liability of Subscriber.</p> <p>One who before the enactment of Laws of 1915 gives his subscription note to a corporation for shares to he issued, conditioned- that the proposed corporation should do business according to a certain system, the Rochdale system in this case, subscribes thereto on special terms, sometimes called conditions subsequent, and where the corporation has been duly organized, the character of the subscription does not affect the subscriber’s liability to take or pay for his shares, but gives him in certain instances a right of action against the corporation for damages upon its failure to perform the conditions. Semble, chapters 144 and 115, Laws 1915, do not change the application of this principle.</p> <p>2. Same — Other Stockholders.</p> <p>In order for the conditions of a subscription upon special terms to the stock of a corporation to be enforcible, they must not he in contravention of public policy or the'provisions of the general law or of the special charter, or in fraud of creditors or the just legal rights of the other stockholders.</p> <p>3. Same — Equal Burdens.</p> <p>Where one has subscribed in special terms, or upon conditions subsequent contained in his subscription note, to the stock of a corporation prior to 1915, and it appears that this was unknown to ’the other subscribers to the stock, who regularly subscribed without such condition, and that the corporation had been organized and the business conducted for which it had been formed upon the plan specified in the note, but subsequently changed to meet business contingencies, and was operating at a loss, though at present its assets exceeded its liabilities: Held, such subscriber may not avoid paying for his stock on the ground that the condition of his subscription had not been complied with, as against the rights of the other subscribers who had paid in full, for such would enhance their burdens in violation of the equality of obligation which should prevail amongst those who embark in a common enterprise. Semble, chapters 144 and 115, Laws 1915, do not change the application of this principle.</p> <p>4. Corporations — Subscribers—Release.</p> <p>Where a corporation has been formed and the obligation of a subscriber to its stock has become absolute, the refusal of its management to presently accept his tender of payment for the shares for which he has subscribed does not release him from his obligation to take and pay for them.</p>

Appeal by plaintiffs from Bond, J., at November Term, 1915, of CRAVEN. This is a civil action to recover damages for the loss of 181 barrels of Irish potatoes.

<p>Appeal by defendants from Gormor, J., at October Term, 1915, of SAMPSON.</p> <p>Motion in tbe cause to confirm report of sale of certain standing timber made by a commissioner. From an order confirming tbe sale, tbe defendants appealed.</p>

Appeal by defendant from Devin, J., at January Civil Term, 1916, of DURHAM. Civil action beard on case agreed. Tbe action was instituted by plaintiff, a citizen and taxpayer of tbe city of Durham, to restrain tbe issuance of coupon bonds of tbe city for tbe purpose of construction and repair of streets and sidewalks of Dillard Street in said city, and without tbe approval of a majority of tbe qualified voters of tbe city cast at election held for tbe purpose.

Appeal by plaintiffs from Connor, J., at October Term, 1915, of SAMPSON. Tbis is a civil action by R. P. Robinson, one of tbe plaintiffs, to recover a one-balf undivided interest in a tract of land in Sampson County, and by R. H. Stowe, another plaintiff, to recover a one-fourth interest in said land.

<p>Appeal by plaintiff from Bond, J., at October Term, 1915, of OeaveN.</p> <p>Civil action to recover damages for alleged wrongful conduct of ■defendant and its employees in compelling plaintiff, a white man, to ride in the coach set apart for colored passengers.</p> <p>Among other things, the evidence tended to show that on 11 July, 1913, plaintiff, a white man and deputy sheriff of Graven County, having in charge a colored prisoner, handcuffed, bought tickets for himself and prisoner at Norfolk, Ya., to New Bern, N. 0., boarded ■defendant’s train running between the two places and started into the ■car assigned for white passengers; that he was directed by the conductor not to take the prisoner into the car assigned for the use of the white passengers.</p> <p>The plaintiff, testifying in his own behalf, said “the conductor forced him to ride in the car for colored people”; but when asked what be meant by the use of that expression, and to state just what occurred, the witness said: “When I started into the white passenger coach with the prisoner the conductor said: ‘Hold on there; you can’t ride in here. You will have to go into the colored car’; that the conductor acted very forcibly, and, by saying that, I mean only to say that he kept me from going into the white car by telling me to go into the colored car.”</p> <p>The evidence tended further to show that when the train neared Plymouth the prisoner jumped from the car and made a temporary escape; that the train was immediately stopped at the plaintiff’s request, plaintiff alighting, found and recaptured his prisoner and took bim to New Bern on a later train. There is no testimony or claim, however, that having the prisoner in the colored car was in any way the cause of his escape, nor is the suit brought for that reason, which is, as stated, for wrongfully refusing to allow plaintiff to enter the car for white passengers with his prisoner and claimed to be in violation of section 2619, requiring carriers to provide separate accommodation for the different races.</p> <p>At the close of the evidence, on motion, there was judgment of non-suit, and plaintiff excepted -and appealed.</p>

CrviL ACTION beard by Peebles, J., on demurrer to tbe complaint, at October Term, 1915, of Wake. Plaintiff alleged tbat bis father, James Lee, on 19 November, 1913, and prior to tbat time, was tbe owner, as tenant in common, of a one-third divided interest in a parcel of land situated in House’s Creek Township and containing about 3 acres. Tbat tbe defendants combined and conspired to defraud James Lee out of bis interest in said land.

<p>Appeal by plaintiffs from Peebles, J., at October Term, 1915, of "Wake.</p>

<p>1. Carriers of Goods — Express — Refusing to Receive — Shipment — Special Trains — Penalty Statutes.</p> <p>An express company is not liable for damages, and the statutory penalties of Revisal, secs. 2631 and 2632, for refusing to receive a shipment of thirty crates of strawberries for a certain train not carrying accommodations for shipments of this character, though it had taken, on occasion, a few berries thereon for the plaintiff, when it so advertised, the shipper knew of it, and accommodations on other daily trains were specially provided.</p> <p>2. Carriers. of Goods — Express—Refusing to Receiver — Shipment—Tender in Time — Trials—Questions of Law.</p> <p>The plaintiff tendered to the defendant thirty crates of strawberries at a small station requiring only one agent to attend to the various duties of express, telegraph, and railroad agent, when the train for which the shipment was intended was seen approaching the depot, and about seven or eight minutes before its arrival there. A charge of the court that it was for the jury to determine whether, under the circumstances, the tender of the shipment for that train was in time was not open to plaintiff’s objection. Semble, the time was insufficient as a matter of law. Revisal, sec. 2632.</p>

Civil actioN by plaintiff and others, residents and taxpayers of New Hope Special School District in Franklin County, N. C., to restrain the collection of taxes levied in said district, tried before Peebles, J., holding courts of the Seventh Judicial District, on 14 December, 1915. On the pleadings and the facts as therein admitted there was judgment permanently enjoining the collection of the tax, and defendants excepted and appealed.

<p>Appeal by plaintiff from Bond, J., at April Term, 1915, of JohNstoN.</p>

Appeal by plaintiffs from Bond, J., at September Term, 1915, of Pitt. Civil action upon exceptions to report of referee. Tbe court overruled all plaintiffs’ exceptions and sustained defendants’ exceptions, and made findings of fact and law and rendered judgment accordingly. Tbe plaintiffs appealed.

<p>1. Telegraphs — Receiving Office — Negligence—Delivery.</p> <p>Evidence that a telegraph company received a telegram for transmission to an addressee well known at its delivery point to the people of the town and defendant’s agent, at which he had an established place of business, and that the message was received at this place at 8:29 a. m. and if delivered before 9 a. m. the injury complained of would have been avoided, is Iielcl, under the circumstances of this case, sufficient for the determination of the jury upon the issue of defendant’s actionable negligence, and to sustain a verdict for actual damages.</p> <p>2. Telegraphs — Office Hours — Negligence.</p> <p>A telegraph company will not be held as negligent in the transmission of a telegram when it is shown that its agent received the message about the time the office at its destination had closed, and the relay office had sent a service message back with this advice.</p> <p>8. Telegraphs — Death Message — Notice—Relationship of Parties — Actual Damages — Burden of Proof.</p> <p>Where the sendee of a telegram announcing a death sues a telegraph company for its negligent failure to deliver it, and it appears that he was not in any way related to the deceased, there is no presumption that he suffered mental anguish in being prevented by the negligence of the defendant from attending the funeral, hut he may show such facts and circumstances upon which the jury may award actual damages, with the burden of proof on the plaintiff.</p> <p>Brown, J., dissenting.</p>

Appeal by defendant from Cline, at Mareh-April Term, 1915, of CHEROKEE. Civil action. The plaintiff was incorporated by a special act of the General Assembly, ratified on 16 February, 1909, it being Private Laws 1909, ch. 76, and was organized on 25 May, 1909.

Appeal by defendant from Peebles, J., at September Term, 1915, of Wake. This is an action to try tbe title to tbe office of mayor of Fuquay Springs. Tbe plaintiff alleges: “Upon 8 May, 1915, in an election beld pursuant to law, the plaintiff’s relator, to wit, L. II.

CONTROVERSY submitted without action upon case agreed, and heard in Duplin Superior Court on 26 February, 1916, before Bond, J., holding the courts of the Sixth Judicial District.

Civil ACTION, beard on case agreed before Connor, J., December, 1915, of SAMPSON. Tbe ease presented was a contest between tbe administrator and tbe heirs at law of J. S. Johnston, tbe latter being represented'by J. B. High-smith, guardian, as to tbe right to $36.60, tendered in accordance with tbe provision of a timber deed to secure an extension of time, etc. There was judgment in favor of tbe personal representative, and tbe guardian excepted and appealed.

Appeal by defendant from Daniels, J., at November Term, 1915, of Columbus. Tbe defendant, in its brief, states witb sufficient accuracy tbe respective contentions of tbe parties, and we adopt its statement as containing tbe material facts.

Plaintiff brought this action to recover damages, for a breach of warranty in the sale of a horse. He alleged that defendants, who dealt in live stock at Henderson, N. C., had tried to sell him a horse, but they had no horse that suited him, and promised to let him know when they got one of the kind he wanted. In March, 1914, Mr. Finch told him that he had the very horse he wanted and that he would suit exactly.

<p>1. Appeal and Error — Railroads—Rights of Way — Easements—Reverter.</p> <p>The question of whether the plaintiff railroad company had abandoned its right of way over the 'defendant's lands, so that, under the terms of its deed, it had reverted to the grantor thereof, cannot be raised for the first time in the Supreme Court on appeal; and in this case only by requested instruction that there was no sufficient evidence of abandonment, the burden of proof being on the defendant.</p> <p>2. Railroads — Deeds and Conveyances — Rights of Way — Easements—Abandonment — Unequivocal Acts — Intent.</p> <p>An abandonment by a railroad company of its right of way acquired by deed with provision that it would revert to the grantor, includes the intention to abandon in concurrence with the external acts by which such intention is carried into effect amounting to a relinquishment of the property, which must be positive, unequivocal, and inconsistent with the claim of title.</p> <p>3. Railroads — Deeds and Conveyances — Rights of Way — Easements—Abandonment — Spur or Side Tracks. •</p> <p>Where a railroad company acquires a right of way over the lands of the owner by deed with provision that it would revert to the owner for nonuser for a stated period, and constructs and operates its main line thereon for a while, and then changes its main line of road to cross other lands, but continues to use the locus in quo for spur and side tracks in connection with its freight or other railroad business, the relocation of its main line, as stated, is not an act of abandonment which will forfeit the company’s easement under its deed.</p> <p>4. Same — Permissive User — Leases.</p> <p>Permissive user or occupancy of a portion of a railroad company’s riglit of way, not then used by the company for railroad purposes, or such, portion leased by the company to its patrons in furtherance of its business, does not affect the company’s title once acquired, and cannot be construed as an act of abandonment by the company under its deed providing that the title thereto will revert to the grantor in event of abandonment for a specified period.</p> <p>5. Appeal and Error — Railroads—Rights of Way — Easements—Abandonment —Deeds and Conveyances — Grantor’s Intent»</p> <p>In an action by a railroad company to restrain the defendant from hindering and molesting the plaintiff’s servants in discharging its duty in the prosecution of its business as a common carrier, where the rights of the parties are made to depend upon whether the plaintiff had abandoned its right of way under the provisions of its deed thereto-, it is reversible error for the trial judge to make the decision upon the issue of abandonment depend upon the intention and conduct of the plaintiff’s grantor.</p> <p>6. Instructions — Railroads—Easements—Rights of Way — Appeal and Error.</p> <p>Where a railroad company seeks to enjoin the interference of the defendant with the conduct of its business, raising the question of plaintiff’s abandonment of its right of way under the terms of its deed, it is reversible error for the trial judge to instruct the jury that the company could have acquired but one right of way under its deed, and that the law presumed that it acted thereunder, there being no evidence to the contrary, when such instruction leaves out of consideration the evidence that while the plaintiff had changed its main line of road, it was still using the locus in quo for its legitimate railroad purposes, and had a right to acquire other lands for the purpose of its main line.</p> <p>Hoke, J., concurs in the result.</p>

Appeal by defendant from Peebles, J., at October Term, 1915, of Wake. Civil action brought to recover damages for personal injuries alleged to have been caused by negligence of the defendant. The particular nature of the cause of action will appear from a recital of material parts of-the testimony. Charles Lassiter, the plaintiff, in his own behalf, testified: “I have lived in Raleigh about fifteen years, and worked most of that time in the city cemetery.

<p>Contracts — Indemnity—Contractor—Mens—Negligence—Torts—Nonsuit.</p> <p>An employee of a contractor to build a bridge for a railroad company sued the contractor, the railroad company, and the bonding company for the alleged negligence of the contractor and railroad company in causing a personal injury; and it appearing from the bond set out in the pleadings that it was solely to indemnify the railroad company against liens for labor and material, etc., used in the construction of the bridge, it'is Held, that no liability could accrue to the railroad company arising out of the tort alleged, and that the motion of the bonding company to nonsuit should not only have been granted as to the plaintiff, but also as to the cross-bill filed by the railroad company, the co defendant.</p>

Appeal by defendant from Peebles, J., at December Term, 1915, of Wake. Tbis is an appeal from an order allowing certain insurance companies to institute an action against tbe receiver of tbe Wake Water Company tbat was under contract, at tbe time of tbe injuries complained of, to furnish tbe city of Raleigb and its inhabitants with water and to perform other obligations.

PROCEEDINGS instituted before the clerk under the processioning act and heard on appeal before Whedbee, J., and a jury, at October Term, 19.15, of Bladen. From an examination of the record it appears that a tract of land, 337 acres, was formerly owned by G-. E. Dixon, and in 1863 he conveyed 100 acres of it to defendant.

<p>1. Insurance — Fraternal Orders — Suits Within Year — Valid Provisions — Statutes.</p> <p>Provisions of the constitution and by-laws of a fraternal order of insurance, that suits shall not he brought or maintained for any cause or claim arising out of the benefit certificate of a member unless within one year from the time the right of action accrues, are valid, and not contrary to Revisal, sec. 4809.</p> <p>2. Same — Amendments—Policy Contracts.</p> <p>Where a certificate of membership in one insurance order is taken over and continued by another such order, with provision as to each that the holder shall be bound by any changes in the constitution and by-laws, and thereafter the order taking over the certificate amends its'constitution and by-laws at a representative meeting so as to bar a suit or action unless brought within a year from the time the cause of action accrued, the amendment is valid and binding upon the holder of the certificate, though no such provision existed at the time he became a member of either order.</p>

<p>Appeal by plaintiff from Peebles, and a jury, at February Term, 1916, of New HaNoveR.</p> <p>Civil action for damages for personal injuries, alleged to have been caused by the negligence of the defendant.</p> <p>The jury answered the issue as to negligence “No.” Plaintiff .appealed.</p>

<p>1. Costs — Attorney and Client — Attorney’s Fees — Condemnation—Statutes— Appeal and Error.</p> <p>The losing party in an action may not he taxed with attorney’s fees of the successful, party (Revisal, sec. 2587) unless authorized by section 2592 of the Revisal, which applies when attorneys are appointed by the court to appear for and protect the right of any party in interest who is unknown or whose residence is not known and who has not appeared by attorney or agent. Hence, in condemnation proceedings of land, brought by a city, it is reversible error for the court to allow, as a part of the costs, attorney’s fees to the owner of the land, the successful party, who has appeared by an attorney retained by him.</p> <p>2. Judgments — Verdict—Interest—Appeal and Error.</p> <p>The judgment in an action must correspond with the verdict, and where in condemnation proceedings tried in the Superior Court on appeal the jury have in their verdict' ascertained the damages to the owner of the land, the verdict will be presumed to include the element of interest, nothing else appearing, and it is reversible error for the trial judge to allow interest from the time the damages were determined upon by the appraisers and render judgment accordingly. Revisal, sec. 1954, providing for. the payment of interest on moneys due by contract, etc., has no application.</p> <p>3. Costs — Condemnation—Superior Court — Trials—Appeal and Error — Stat- ' utes.</p> <p>On appeal by both parties in proceedings to condemn land, to the Superior Court in term, the trial is de novo; and where the defendant has substantially recovered damages for the taking of his land, the costs are taxable against the plaintiff, though the recovery is in a smaller sum than the amount theretofore awarded by the appraisers or viewers. Private Laws 1899, sec. 61, and Revisal, sec. 1905, applying to plaintiff’s appeal from a justice of the peace, have no application. Semble, if the exercise of the judge’s discretion was necessary, Revisal, sec. 1279, the result is the same in this case.</p>

<p>1. Railroads — Negligence—Escaping Steam — Runaway Horses — Intervening Canse — Proximate Cause — Trials—Evidence—Question for Jury.</p> <p>Evidence that the engineer on the locomotive of defendant railroad company carelessly and recklessly let off steam from the engine under a team of horses used in handling freight at its depot, and, seeing the horses frightened, did not desist, and that his conduct caused them to run away and kill the plaintiff’s intestate, is sufficient upon the issue of the defendant’s actionable negligence to take the case to the jury; and in this case it is held that the question of the intestate’s negligence to have ventured there, being deaf, and the intervening negligence of the owner of the team in not providing a proper harness, together with the question of proximate cause, was correctly submitted to the determination of the jury.</p> <p>2. Measure of Damages — Wrongful Death — Earning Capacity — Successful Business — Evidence.</p> <p>In an action for damages for the negligent killing of the intestate by a railroad company, it is competent to show, upon the issue of the measure of damages, that the intestate had built up a successful business from a small start; and where the daughter of the intestate has, testified thereto from her own knowledge, her testimony, on cross-examination, is not rendered incompetent by her giving, as sources of her knowledge, information she had obtained by conversations with her father and mother, and entries made on his bank book.</p>

Appeal by plaintiff from Whedbee, J., at tbe December Term, 1915, of ROBESON. Tbis is an appeal from, an order setting aside a judgment by default entered at September Term, 1915, of tbe Superior Court of Robeson County. Tbe summons was issued on 6 September, 1915, and served on 15 September, 1915. Tbe complaint and a lis pendens were filed in tbe clerk’s office on Y September, 1915.

PetitioN to rehear. Upon the trial Webb, J., submitted these issues to the jury and instructed the jury to answer issues a and b “No.” a. Are there water powers, rights, and properties on the lands of the respondents as described in the petition capable of being developed for the production of electric power for use in connection with and in addition to the electric power already developed and in use by the respondent, Hendersonville Light and Power Company?

Appeal by plaintiff from Allen, J., and a jury at September Term, 1916, of DURHAM. Civil action to recover a penalty against tbe defendant for refusal to receive for shipment a car-load of cattle wbicb the plaintiff alleges he tendered to be shipped from Eoseboro, N. C., in Sampson County, to Clayton, N. 0., in Johnston County, and damages which the plaintiff alleges he sustained by reason of the failure to receive and transport the cattle.

Appeal by defendant from 0. II. Allen,, J., at November Term, 1915, of Durham. Civil action, tried upon these issues: 1. Was the plaintiff injured by the negligence of defendant F. 0. Geer Company, as alleged in the complaint? Answer: “No.” 2. Was the plaintiff injured by the negligence of the defendant Wells Brothers Company, as alleged in the complaint? Answer: “No.” 3.

<p>Courts — Justices of the Peace — Appeal — Recordari — Motions to' Dismiss— Statutes.</p> <p>A motion to dismiss an appeal from a justice’s court, made in the Superior Court several terms after the judgment has been entered, for failure to send up the transcript, should be granted under Revisal, sec. 608, notwithstanding due notice of appeal has been given, when the appellant has not paid the fees required or taken proper steps to perfect the appeal; and his motion for recordari should be denied.</p>

Appeal by defendant from Peebles, J., at September Term, 1915, of Wake. Civil action.

Civil ACTION of trespass on realty, involving ebiefly a question of boundary, tried before Bond,, J., at November Term, 1914, of Halifax.

Appeal by defendant from Daniels, J., at December Term, 1915, of New HawoveR. Civil action to recover damages for negligent injury to an interstate shipment of live stock over the defendant Louisville and Nashville Railroad, the initial carrier, and over the Seaboard Air Line Railway, the connecting and delivering carrier.

Civil actioN to recover on a life insurance policy, triéd at September Term, 1915, of Dueham, before 0. H. Allen, J. There was a verdict and judgment for the plaintiff.

, at January Term, 1916, of Guilford, by all parties except tbe beirs of Porter and Caldwell.- Tbe question1 presented is .as to wbetber tbe judgment entered in tbe Superior Court conforms to tbe decision rendered by tbe Supreme Court on a former appeal of tbe same cause of action, tbe judgment herein appealed from reading as follows: Now, on considering said opinion of tbe Supreme Court, it is ordered, considered, and decreed by tbe court: I. That tbe land embraced in tbe…

Appeal by plaintiff from 0. II. Allen, J., at September Term, 1915, of Alamance. Civil action instituted to recover damages for alleged negligence of defendants, a partnership, in operating an automobile whereby plaintiff, a passenger in the machine, received painful and serious injuries. On denial of liability, issues were submitted and verdict rendered thereon as follows: 1.

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

MotioN in this cause in the Supreme Court by plaintiff for judgment against Harry Skinner and J. F. Pollard, sureties on defense bond in action of ejectment under Revisal, sec. 453, for the costs of the Supreme Court.

<p>1. Instructions — Erroneous in Part — Construed—Bills and Notes — Fraud-Appeal and Error.</p> <p>The correctness of a charge by the judge to the jury, free from objection as a whole, is not affected by the fact that a portion thereof, separately considered, is erroneous; and where there is allegation and evidence that a note sued on has been procured by fraud, and the plaintiff is the holder by indorsement, and the judge in effect charges the jury that the burden was upon the plaintiff to prove that the instrument was complete and regular upon its face; that he became the holder before maturity without notice of the infirmity, in good faith for value; that the instrument was in fact regular upon its face, etc., the instruction will not be held as erroneous because a detached portion thereof seemed to put the burden upon the defendant.</p> <p>2. Instructions — Requested Prayers — Bills and Notes — Fraud—Evidence.</p> <p>In an action upon a note by an indorsee, where fraud in its procurement is alleged, with evidence tending to support the allegation, it is not error for the trial judge to refuse to give special instructions correct in the abstract as to the circumstances and 'bona fieles of plaintiff’s purchase, the- credibility of the evidence, etc., when such were substantially embodied in the general charge; and it is Held, the instructions asked in this case were not proper, there being no evidence that plaintiff purchased under such circumstance's as would impliedly give him notice of the infirmity, it appearing from the evidence that he had no actual notice thereof.</p>

Appeal by J. F. Gordon, agent, etc., from order of Cline, J., in proceedings beld at tbe October Term, 1915, of Foesyth.

<p>Appeal by defendants from Cline, J., at January Term, 1916, of GUILFORD.</p>

Appeal by plaintiff from Gline, J., at November Term, 1915, of FORSYTH. Civil action, tried upon these issues: 1. Had the defendant’s son, Ira Hartley, been emancipated by the defendant at the time the unpaid board bill was made? Answer: “Tes.” 2. Is the defendant indebted to the plaintiff, and, if so, in what amount? Answer: “None.” From the judgment rendered, plaintiff appealed.

Civil action in the Superior Court of Surry County, beard by Lane, J., at chambers, 3 January, 1916, upon application by tbe plaintiff for a restraining order. The court refused tbe motion, and tbe plaintiff appealed.

<p>1. Courts — Pleadings—Amendments—Parties.</p> <p>It is -within, the discretion of the trial judge to permit an amendment to the complaint, after service of summons, by adding other names of the defendant partnership, it appearing that the defendant had notice of the amendment.</p> <p>2. Judgments — Excusable Neglect.</p> <p>A motion by defendant to set aside a judgment rendered by default of an answer, for inadvertence, surprise, mistake, and excusable neglect, will be denied when it appears that the cause was regularly set on the calendar which was advertised, and the judgment rendered at a term of court held after several terms thereof had passed wherein the answer should have been filed.</p> <p>B. Gaming Contracts — Cotton Futures — Statutes—Constitutional Law.</p> <p>Chapter 853, Laws 1909 (Gregory’s Supplement, sec. 1689), declaring contracts in cotton futures void, and that no action may be maintained upon them in the courts of this State, is in furtherance of our declared public policy, and our statute is constitutional and valid.</p> <p>4. Same — Void Judgments.</p> <p>A judgment rendered by default of an answer upon notes regular and valid upon their face, but growing out of transactions in cotton futures made void by our statute, which also declares that actions thereon may not be maintained in the courts of our State, will be set aside as utterly void, irrespective of whether it was obtained through excusable neglect, etc.</p> <p>5. Same — Appeal and Error — Finding's—Procedure—New Actions.</p> <p>Upon motion to set aside a judgment regularly rendered, when it is found as a fact by the trial judge that it was obtained upon notes given in transactions relating to cotton futures, prohibited by our statute (Gregory’s Supplement, sec. 1689), the Supreme Court, on appeal, will order the judgment set aside for want of power in the court to render it, and as absolutely invalid, and leave the plaintiff to establish the fact in another action, if he can, that the notes were valid and not arising from the transactions prohibited.</p> <p>Allen, J., dissenting; Brown, J., concurring in the dissenting opinion.</p>

Civil ACTION, tried before Cline, J., and a jury, at February Term, 1916, of DavidsoN, upon these issues: 1. Is the deed of mortgage mentioned in the pleadings the act and deed of the Southmont Spoke, Hub and Handle Company, now bankrupt? Answer: “Yes.” 2*. Was the said Southmont Spoke, Hub and Handle Company at the time of the execution of said paper-writing insolvent and unable to pay its debts? Answer: “No.” 3.

Appeal by defendants from Garter, J., at October Term, 1915, of STANLY. Civil action. The plaintiff, a real estate broker, sued for the recovery of $450, alleged to be due by the defendants J. M. Parker and Luther Shirey, as commissions on the sale of 380 acres of land in said county, and known as the David Melton home place.

<p>1. Issues — Negligence—Wantonness—Pleadings—Evidence—Trials.</p> <p>In an action against a railroad to recover damages for a personal injury, where there is no allegation or evidence that the act complained of was wantonly done, it is erroneous, to defendant’s prejudice, for the trial judge to submit an issue as to whether the plaintiff was injured by the'defendant’s wanton negligence.</p> <p>2. Same — Instructions—Appeal and Error — Harmless Error.</p> <p>In an action for damages alleged to have been caused by the defendant’s negligence, where there is sufficient evidence of the negligence complained of, the submission of an improper issue as to the defendant’s "wanton” negligence places upon the plaintiff an additional burden to show that the act was wanton; and where the trial judge has properly instructed the jury that the plaintiff was only entitled to recover his actual damages, the error is harmless so far as the defendant is concerned.</p> <p>S. negligence — Railroads—Collisions — Injury to Pedestrians — Trials — Evidence — Questions for Jury.</p> <p>In an action to recover damages of a railroad company for injuring the plaintiff, alleged to have been caused by the defendant’s negligence, the evidence is sufficient as to the defendant’s negligence, but not of wantonness, which tends to show that the defendant’s branch line crossed its main line in a town; that the plaintiff was stopped by a freight train at this crossing, and while standing between the two tracks about 35 feet from the track a fast train on the main line crashed into a freight train on the crossing, and a small stick of timber was hurled upon the plaintiff, causing the injury complained of.</p> <p>Clark, C. J., concurring.</p>

CONTROVERSY submitted without action and tried before Bond, J., at February Term, 1916; of Lenoir.

<p>Cities and Towns — Sewerage—Nuisance—Injunction.</p> <p>Wliere a citizen of a town has built his home near the place where the town’s sewer emptied into a stream, and there is evidence tending to show that the flow of water was thereafter increased by concrete streets so as to carry offensive matter and germs through the sewer, into the stream, to the injury of the health of his household, a restraining order should be granted to the hearing, it appearing, by agreement, that the town was restrained only from artificially washing its sidewalks until then.</p> <p>Hoke, J., not sitting.</p>

Appeal by defendant from Webb, J., at February Term, 1915, of Fobsyth. Civil action to recover damages for negligent failure to deliver a telegraphic message.

<p>1. Appeal and Error — Admissions of Record.</p> <p>An admission entered of 'record in a case on appeal, as having been made on the trial in the Superior Court, that the plaintiff could not recover the lands in dispute if certain deeds in his chain of title were excluded from the evidence, is recognized in the Supreme Court, and binding upon the party making it.</p> <p>2. Deeds and Conveyances — Foreign Probate — Certificates—Statutes—Evidence.</p> <p>Our statute, Revisal, sec. 990, prescribing how deeds may be proven and acknowledgment and privy examination taken in other States as well as in foreign countries, must be followed, or they and the registration thereon will be declared void; and where the probate to a deed is taken by a commissioner of deeds in another State, and the certificate of the clerk of the court of that county is alone to that effect, without indication of authority of the commissioner to act therein for the State of North Carolina, the registration here upon the probate, as well as the probate, are both ineffectual, and will not be received as evidence of title.</p>

Civil actioN beard by Qonnor, J., on 15 February, 1916, on a motion to vacate a restraining order. Tbis action was brought by tbe plaintiffs for tbe purpose of having tbe defendants enjoined from proceeding under Public-Local Laws 1915, cb. 512, to build a fence around tbe county of Duplin and from contracting any debt or levying tqxes to pay for tbe same or tbe maintenance thereof, and generally from attempting to execute or carry out tbe provisions of said statute.

Appeal by plaintiff from Justice, J., at December Term, 1915, of GASTON. Civil action. At tbe conclusion of tbe evidence tbe court sustained tbe motion to nonsuit, from wbicb tbe plaintiff appealed.

Appeal by plaintiffs from Ilariing, J., at August Term, 1915, of Eutherford. This is a proceeding for the partition of a tract of land formerly belonging to Joshua Ford, who died leaving a will, the parts of which material to this controversy are as follows: “Third. It is my will that my daughter Laura and son John shall have the tract of land on which I now live, containing 84% acres, to be equally divided between them.

Appeal by plaintiff from Justice, J., at December Term, 1915, of Guilfoed.

<p>1. Insurance — Fraternal Orders — Restricted Beneficiaries.</p> <p>A fraternal assessment benefit association Laving a representative form of government may, by its contract and constitution, confine tbe beneficiaries to certain blood relatives, wife, affianced wife, persons dependent upon the member, etc., in conformity with the laws of the State wherein it has its head organization; and where such beneficiary sues upon a policy, claiming as the wife of the deceased member, and it appears that in fact the marriage was bigamous, she may not recover, though the certificate states she was his wife.</p> <p>2. Same — Wife—Bigamy—Evidence—Questions of Law — Trials.</p> <p>Where the plaintiff seeks to recover upon a certificate issued by a fraternal assessment benefit association as the wife of the deceased, and it appears that the marriage ceremony was twice performed, but at a time when the deceased had a lawful living wife, and that under the valid terms of the certificate she could not otherwise recover as a beneficiary: Held, a recovery will be denied as a matter of law.</p> <p>8. Insurance — Fraternal Orders — Restrictive Beneficiaries — “Dependents.”</p> <p>Where a certificate of membership in a fraternal assessment benefit association confines the beneficiaries, among others, to a certain class of blood relations, to the wife and to “persons dependent upon the member,” it means to such persons as are legally dependent and of the same class ejusdem generis as the relationship already stated, and may not be extended to include one claiming as a wife, but in fact by a bigamous marriage.</p>

<p>1. Courts — Jurisdiction—Amount Demanded — Pleadings.</p> <p>Where an action upon a contract is brought in the Superior Court, and the demand is made in good faith and comes within the jurisdictional amount, a recovery of a less sum will not defeat the court’s jurisdiction. Upon the evidence in this case, and from the verdict of the jury, it appears that the demand was made in accordance with the requirements.</p> <p>2. Appeal and Error — Supreme Court — Parties—Motion to Dismiss.</p> <p>Where one of several makers of a note has paid it and caused it to be 'assigned to a trustee, semble, the actions to recover from his comakers are several; but where he sues them all in the same action the remedy is by demurrer for misjoinder of parties, and cannot be taken advantage of in the Supreme Court upon motion to dismiss the action, upon the ground that the Superior Court had no jurisdiction because the action arose by contract, and the recovery sought against each defendant, taken separately, was less than $200.</p> <p>3. Appeal and Error — Evidence—Depositions—Objections and Exceptions— Harmless Error.</p> <p>Where a deposition is objected to as immaterial and irrelevant, and not that it was irregularly taken, its admission as evidence is harmless error at most, and not prejudicial to the complaining party.</p> <p>4. Courts, Discretion — Issues—Appeal and Error — Harmless Error.</p> <p>The discretion of the trial judge in settling and framing the issues is not reviewable on appeal, when the issues submitted present every phase of the controversy, and under them all material and relevant evidence could have been introduced by either party.</p> <p>5. Trials — Evidence—Fraud—Instructions.</p> <p>In this action for contribution upon a note paid by a joint maker and assigned to his trustee, there was allegation, in defense, that the note sued on was procured upon the fraudulent representation that the makers thereof should be ten in number and pay their proportionate parts. Upon the entire testimony it is held that there was no evidence of fraud, and the instruction of the court in that respect was not erroneous.</p>

Appeal by plaintiff from Garter, J., at February Term, 1916, of MECKLENBURG. The plaintiff brought this action to recover damages for personal injuries alleged to have been caused by defendant’s negligence, which consisted in permitting an iron frog to be left in a street of Charlotte. Plaintiff, while walking on the street, stepped on the frog and her foot was caught in the same and she was injured.

<p>1. Appeal and Error — Theory of Case — Deeds and Conveyances — Frauds.</p> <p>A case on appeal in the Supreme Court is determined upon the theory on which it was tried in the Superior Court, and where therein a deed was sought to be reformed for fraud, and damages recovered on a breach of covenant and warranty of title in its corrected form, it may not be determined on the question as to whether there had been such breach in the conveyance as actually drawn.</p> <p>2. Deeds and Conveyances — -Interest Conveyed — Covenants—-Warranty.</p> <p>A covenant of warranty does not enlarge or curtail the estate granted in the premises of a deed to land, 'but is merely an assurance or- guaranty of the title conveyed; and where a grantor conveys “all his right, title, and interest in and to the land,” it will not be construed as a conveyance of the land itself, but only of the grantor’s interest therein, and the warranty will be limited to the estate described.</p> <p>3. Same — Interpretation of Deeds.</p> <p>A conveyance of all the grantor’s “right, title, and interest” in lands, with habendum to the grantee and his heirs forever, and with covenant that the grantor “is seized of the interest conveyed” as evidenced by a certain deed to him; that he has á right to convey such interest in fee simple; that he will warrant and defend the title to the said interest, etc.; and where the deed referred to conveys the “right, title, and interest” of the grantor therein, with full covenants of warranty: Held, construing- the deed as a whole, the intent of the grantor, and the effect of his deed, was to convey only whatever interest he may have had in the land.</p>

Civil actioN, beard on return to preliminary restraining order before Stacey, J., at March Term, 1916, of PENDER. Tbe action was instituted by plaintiffs, citizens and taxpayers of said county, to restrain tbe board of commissioners from borrowing money to build a public fence around certain portions of Pender County abutting upon other counties, where tbe stock or no-fence law prevailed.

<p>1. Master and Servant — Safe Place to Work — Duty of Master — Rule of the Prudent Man.</p> <p>The master is not held to the liability of an insurer or guarantor of his servant’s safety under the rule that it is his duty to furnish the servant a safe place to do the work required of him, hut only to exercise ordinary care to provide a place where the servant can do the work with reasonable safety.</p> <p>2. Same — Trials—Instructions.</p> <p>A requested instruction, in an action for damages for failure of the defendant to furnish his servant a safe place to work, alleged to have resulted in the injury complained of, that leaves out of consideration the negligence of the defendant under the rule of the prudent man, and makes his liability that of an insurer, is properly refused.</p> <p>3. Same — Concurrent Negligence — Independent Contractors.</p> <p>The rule holding the master liable in damages to his servant when the negligence of both concur in inflicting the injury on the latter eomp'ained of, depends for its application upon the fact of the master’s negligence, either directly or through his subcontractor, and a requested prayer for instruction tendered by the plaintiff which precludes this inquiry upon the evidence is properly refused.</p> <p>4. Appeal and Error — Trials—Requested Instructions — Issues.</p> <p>It is not erroneous for the trial judge to refuse special requests for instruction not addressed to the issues.</p>

<p>Appeal by defendant from Shaw, J., at November Term, 1915, of Caldwell.</p>

Appeal by caveators from Garter, /., at February Term, 1916, of MeGKLENBTTRG. This is a caveat to two papers offered for probate as the will of Julia W. Johnston.

Civil actioN, tried before O. H. Allen, J., at September Term, 1915, of DURHAM. Two actions were brought before a justice of the peace, one to recover a balance of $50 due for goods sold by plaintiff to the defendant Southern Furniture Company on 19 August, 1913, and the other to recover $200, a balance due for goods sold by plaintiff to said company in November, 1913.

Appeal by defendant from Garter, J., at February Term, 1916, of MECKLENBURG.

Civil actioN tried before Cline, J., and a jury, at September Term, 1915, of FORSYTE. Plaintiff brought the action to recover certain personal property, with damages for its detention, and the amount of certain notes alleged to be due by defendants to it. The defendants Wooten & Benigar were engaged in manufacturing handle slabs, which were used by the plaintiff in its business.

<p>Drainage Districts — Process—Injunction—Different County — Motions—Notice,</p> <p>Where a drainage district has been established under a valid statute, an injunction against the assessment provided for may not successfully be prosecuted in an independent action by the owner of the land in the district, on the ground that the statutory notice had not been given him, the remedy being by motion in the proceedings instituted in the county for the formation of said district wherein are the records and where a proper reassessment may be had if the same should be lawfully required; and the plaintiff may obtain his restraining order in those proceedings if he is entitled thereto. Semble, notice of the motion should be served on the owners of land in the district as required by the statute.</p> <p>Walker and Brown, JJ., concurring; Allen, J., dissenting.</p>

Civil actioN tried on appeal from a justice’s court and upon case agreed, before Justice, J., at Spring Term, 1916, of Gastoh. Tbe relevant facts, as shown in the case, are as follows: 1. On or about 23 September, 1913, upon authority duly given him by the defendants, Joseph S. Wray executed a contract for the purchase of a Stieff piano, a copy of which contract is hereto attached, marked “Exhibit A.” 2.

<p>1. Contracts — Interpretation—Uphold Validity — Favor of Promisee — Advantage of Wronged Party.</p> <p>Where the language of a contract renders it of doubtful meaning it should he interpreted so as to uphold the writing, and in a manner most beneficial to the promisee and to prevent the promisor from taking advantage of his own wrong, when such matters are involved and may reasonably be considered as arising from the expressions used.</p> <p>2. Same — Compromise—Terms as to Validity.</p> <p>A writing executed in consideration of compromise of an action at law provided that the defendant should pay the plaintiff and her attorneys a certain sum of money, each, and a stated sum monthly to the plaintiff for a period of five years, with further provision that should the defendant fail to perform any of the obligations required of him the agreement shall be void. The defendant paid the plaintiff and her attorney two of the monthly payments, and then failed to pay any further, and it is Held, that by correct interpretation the contract was contemplated to become void at the option of the plaintiff, the prom-isee, and was otherwise valid and enforcible by her.</p>

<p>1. Appeal and Error — Service of Case — One Exception — Motion to Dismiss.</p> <p>Service of appellant’s case on appeal is unnecessary when there is only one exception taken and the judgment itself is excepted to; and a motion in the Supreme Court to dismiss for the lack thereof will be denied.</p> <p>2. Courts — Jurisdiction—Special Appearance — Waiver.</p> <p>A defect of the jurisdiction of the court as to the person may be waived by his motion asking for relief upon the merits of the case, the practice being for the movant to specially appear and move to dismiss for the lack of the court’s jurisdiction, and, if this is denied, except, and then plead to the merits or demur in the trial court.</p> <p>3. Same — Permission to Plead — Merits.</p> <p>Where a defendant against whom a judgment has been obtained moves the court to set it aside for want of service upon him, and further states in his motion that it is upon the ground “of irregularities and illegalities,” and obtains leave to file an answer to the merits of the cause, he will be deemed to have waived objection to the alleged defect in the jurisdiction of the court.</p> <p>4. Judicial Sales — Tax Liens — foreclosure — Deed Yacated — Pleadings — Judgments.</p> <p>Where a sale of lands has been ordered by the court, at the suit of the county, to satisfy a lien thereon for taxes, which has been made and the lands conveyed to the purchaser, and thereafter, on motion of the owner, the sale and the deed have been set aside, but not the order of sale, with leave given the movant to file an answer, it is error for the court at a subsequent term to effectuate the deed because the answer had not been filed in the time prescribed, for the answer would have been unavailing at the time in the face of the order for the sale of the property.</p> <p>5. Appeal and Error — Judgments—Judicial Sales — Tax liens — Courts—Innocent Purchaser.</p> <p>Where a sale of land has been made and a deed executed to the purchaser, at the suit of the county to enforce its lien for taxes thereon, and the deed and the sale subsequently set aside, on motion of the owner of the lands, it is error for the court, at a still subsequent term, to reinstate the deed and declare it valid on the ground that the purchaser was an innocent one for value, the proper procedure in such matters being an appeal to the Supreme Court from the order invalidating the deed.</p> <p>6. Judgments Tacated — Motions—Notice—Procedure.</p> <p>Where under a judgment of court lands have been sold to enforce a lien thereon for taxes, and conveyance thereof made to the purchaser upon motion of the owner of the lands, an order vacating the sale and setting aside his deed without notice to such purchaser is void as to him, and he should properly be notified and the matter thereafter regularly proceeded with under the motion theretofore made.</p>

<p>1. Evidence — Depositions—Exhibits, Detached — Proof.</p> <p>While it is customary, and the better practice, to attach to a deposition a paper-writing therein referred to, or, if there are more than one deposition, to attach it to one and identify it hy reference in the others, and in case the writing is a matter of record or in the custody of the court, over which the parties have no control, to attach an exemplified copy, it is not required hy our statutes that the writing he so attached, and when this has not been done, the fact of identity may he proved as any other fact in evidence.</p> <p>2. Same, — Wills.</p> <p>Depositions were .taken in proceedings to caveat a will, referring to a paper-writing which was not attached. Held, competent for the commissioner to identify the paper-writing as a part of the deposition.</p> <p>3. Evidence — Compromise—Denials.</p> <p>In an action to caveat a will a caveator, a witness in his own behalf, testified that the propounder and devisee had acknowledged that the writing set up as a valid will was not genuine, and offered to compromise the matter. Held, competent for the propounder to deny this statement and testify to the full conversation he had had with the caveator relating to the subject-matter, and say that the offer to compromise came from the caveator.</p>

<p>1. Vendor and Purchaser — Sales on Commission — Misappropriation of Funds —Corporations—Officers—Parties—Actions, Joint and Several.</p> <p>When goods are consigned to a corporation to he sold and properly accounted for, the proceeds are regarded as a trust fund and may he recovered by appropriate action, not only as to the corporation appropriating the same, but as to the officers thereof knowingly participating in the wrong; and in case of liability the action can be maintained against the parties jointly or severally.</p> <p>2. Evidence — Kbnsuit.</p> <p>The rule being that upon defendant’s motion to nonsuit the evidence will be regarded in the light most favorable to the plaintiff, where there is sufficient evidence, though conflicting, to sustain his contention the motion will be denied without considering the evidence of the defendant in his own favor.</p>

<p>Appeal by plaintiff from Justice, J., at January Term, 1916, of McDowell.</p>

Civil ACTION tried before Webb, J., and a jury, at December Term,. 1915, of GastoN. This is an action, commenced before a justice of the peace and tried in the Superior Court on appeal, to recover $98 alleged to be due by contract.

Civil actioN tried before Shaw, J., and a jury, at October Term, 1915, of BueKe.

<p>Municipal Corporations — Negligence—Streets and Sidewalks — Trials—Evidence — Questions for Jury.</p> <p>'A city is required to keep its streets and sidewalks in a reasonably safe condition by continuous supervision, but it is not beld to warrant them at all times to be absolutely safe; and while permitting a hole several inches deep left by the removal of a water meter by its own employees, about 16 or 18 inches in diameter, partly in the concrete sidewalk and partly on a grass plat within the curbing, to remain there for six months, affords evidence of actionable negligence for a personal' injury thereby caused, it may not be declared negligence per se as a matter of law.</p>

Civil actioN tried before Lame, J., and a jury, at October Term, 1915, of MONTGOMERY. This is an action to foreclose a real estate mortgage executed to secure the payment of a note of $300. Tbe plaintiff held two other notes against tbe defendant secured by chattel. mortgages, one for $235 and the other for $225. Tbe plaintiff filed a bill of particulars with bis complaint in which tbe three notes were charged against the defendant and which showed payments aggregating $655.

<p>1. Deeds and Conveyances — Color—Adverse Possession — Burden of Proof-Degree of Proof.</p> <p>The defendant in an action to recover lands, depending upon adverse possession thereof under color of title, where the plaintiff has proved a perfect chain of paper title, has the burden of proving this defense by the greater weight of the evidence, Revisal, sec. 386; and while an instruction thereon that the defendant must satisfy the jury thereof has been held sufficient, a further charge in connection therewith, that the defendant need not satisfy the jury by the greater weight of the evidence,. is in effect a charge that the jury may he satisfied by less than the greater weight of the evidence, and constitutes reversible error.</p> <p>2. Deeds and Conveyances — Color—Adverse Possession — Constructive Possession — Outer Boundaries.</p> <p>Upon the question as to whether defendant’s possession of a small strip of land beyond his own line and within that of the plaintiff was sufficient to extend his adverse possession by construction to the boundaries of his deed under which he claims as color, Oreen v. Harmon, 15 N. C., 162, is cited and aproved.</p>

Appeal by plaintiff from judgment rendered by Harding, J., at September Term, 1915, of TkansylvaNia. This is an appeal by the plaintiff from a judgment confirming the report of commissioners appointed to partition certain lands between the plaintiff and the defendant, the plaintiff being entitled to one-eighth and the defendant to seven-eighths thereof.

Civil actioN tried before Webb, J., and a jury, at November Term, 1915, of Meoexenbubg.

<p>1. Railroads — Street Railways — Care of Passengers — Guard-rails — Absent Conductor — Negligence—Evidence—Questions for Jury.</p> <p>Where a street railway company runs its open car to its amusement park, the car provided with guard-rails held in place only by their own weight, and there is evidence tending to show that these rails are easily lifted by passengers entering or leaving the car, which the presence of the conductor, in looking out for the safety of his passengers, would' prevent; that at a time when the car was crowded and a crowd of passengers was expected at the park, the conductor left the car to throw a switch, just before reaching the park platform, and the plaintiff, an old and feeble woman, attempting to get on the car at its regular stop, was injured by the rail, which had been held up by the passengers entering and leaving the car, falling on her head; and that a special man was occasionally employed to throw the switch, but was absent on this occasion: Held, evidence of actionable negligence, and it was reversible error for the trial judge to charge the jury that the car was properly equipped, and that the defendant was not liable if the injury to the plaintiff was caused by the rail haying been lifted by the other passengers, there being no fastening and no one present charged with the duty to prevent them.</p> <p>2. Railroads — Street Railways — Stopping of Cars — Invitation Implied.</p> <p>The stopping of a car at its regular place for the purpose of taking on passengers is an implied invitation for passengers to board the car there.</p>

Civil actioN tried before Garter, J., and a jury, at October Term, 1915, of UNION.

<p>1. Damages — Physical Injuries — Mental Powers — Trials—Evidence.</p> <p>Damages for the loss of mental powers arising from a personal injury negligently inflicted are not recoverable when there is no evidence tending to show that such have been sustained therefrom.</p> <p>2. Same — Instructions.</p> <p>The charge of the trial judge to the jury should he construed as a whole; and where a recovery for mental suffering arising from a personal injury is permissible, and the charge to the jury is that the plaintiff is entitled to reasonable compensation for the loss of both bodily and mental powers, or for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury, the word “or” is used to introduce matter explanatory or interpretative of what immediately precedes it, and not in the disjunctive; and, thus construed, it does not permit a recovery for the loss of mental powers, concerning which there is no evidence.</p> <p>8. Damages — Mental Anguish — Evidence—Trials.</p> <p>Evidence tending to show that the" plaintiff suffered in consequence of a personal injury inflicted by the defendant, a severe blow just above the kidneys, which resulted in an attack of jaundice, and brought about a condition not infrequently very humiliating to him, is sufficient to be submitted to the jury upon the question of damages for mental suffering, in the event the defendant’s liability is established.</p>

Civil actioN beard, on demurrer, by Webb, J., at November Term, 1915, of MeckleNbubg. From a judgment sustaining tbe demurrer and dismissing tbe action, tbe plaintiff appealed.

Appeal by defendant from. Justice, J., at June Term, 1915, of ROCKINGHAM. This action was brought to recover $1,080, alleged to be due under guaranties of the defendant indorsed upon three certificates each for twenty shares of the cumulative preferred stock which was issued by The American Warehouse Company, the par value of each share being $100. The certificate is in the following form: The AmericaN 'Warehouse Company. Authorized Capital, $1,000,000.

<p>1. Deeds and Conveyances — Timber—Vested Interests — Divested Interests.</p> <p>A conveyance o£ timber growing upon lands, to be cut and removed within a stated period, vests the title to the timber, subject to be divested if not so cut and removed by the grantee.</p> <p>2. Deeds and Conveyances — Timber—Breach—Conversion — Damages — Evidence — Diminution.</p> <p>Where the grantor breaches a provision of his deed, conveying timber standing upon his lands, by entering thereupon and preventing the grantee from removing, etc., the timber within the stated period, the defendant’s act is, in effect, a reconversion of the timber to his use, and he is liable for the damages caused thereby; and evidence introduced solely for the purpose of showing that the grantor could have purchased other timber in the same locality from other parties in lieu of the timber the defendant had sold him, and thus have minimized his damages, is incompetent, though admissible in rebuttal of the plaintiff’s testimony upon a different phase of the case, had it been offered for that purpose.</p> <p>3. Contracts — Breach—Damages—Diminution—Evidence—Knowledge—Deeds and Conveyances.</p> <p>Where it is permitted a party, who has breached his contract, to prove that the other party thereto could have minimized the damages by acquiring like property similarly situated, it is necessary for suck party to show that the other had knowledge of the conditions relied upon at the date of his breach.</p> <p>4. Deeds and Conveyances — Timber—Contracts—Breach—Measure of Damages.</p> <p>Where the grantor has breached the terms of his deed to standing timber by entering upon the lands and preventing the grantee from cutting and removing the timber within the stated period, the rule of damages is the difference between the actual value of the timber and the contract price, and, if the price had been paid, the value of the timber.</p> <p>Allen, J., dissenting.</p>

<p>1. Deeds and Conveyances — Trusts—Delivery by Mail — Trials—Questions of law.</p> <p>Where two purchasers of lands have them conveyed to one of them to he held in trust for both, and the holder of the legal title executes a good and sufficient deed to the other for the latter’s interest in the lands, and deposits the deed in the postoffice in an envelope properly addressed, by mailing the deed the grantor parts with his authority and control over itl this passes the title in the property to his grantee, whether the latter was aware of the fact or not, it being assumed that he will accept the title to the lands for which he has paid; and where, in an action involving this question, the evidence of both parties is harmonious, such delivery will be held valid as a matter of law.</p> <p>2. Deeds and Conveyances — Delivery by Mail — Trusts—Title.</p> <p>Where the holder of the legal title to lands in trust for himself and another executes and mails to his cestui que trust a deed sufficient to pass the title, the trust estate ceases and the grantee holds the legal title to his part of the lands under his deed.</p> <p>3. Same — Bankruptcy—Registration—Laches—Title—Notice.</p> <p>Where a valid delivery of a deed to lands is made by mailing the deed to the grantee, which he has not received, and waits for fifteen years after receiving notice of the fact, and three years after his partner has become a bankrupt and the lands sold to a purchaser at the bankrupt sale, without demanding the reexecution of the deed or taking legal steps to secure it (Revisal, sec. 336): Held, the trustee in bankruptcy, being regarded as a purchaser for value under the amendment to the Bankrupt Act of 1910, acquires a valid title as against the holder of the unregistered deed, under Revisal, sec. 980, which no other formal notice will affect, which title inures to the purchaser at the bankrupt sale.</p> <p>4. Deeds and Conveyances — Delivery by Mail — Beturn Address.</p> <p>The valid delivery of a deed by mail is not affected by the fact that the grantor’s return address was given on the envelope, though it appears that in fact the grantee did not receive the conveyance and that it was not returned to the grantor.</p> <p>Hoke, J., concurring in result.</p> <p>Walker and Brown, JJ., writing concurring opinions.</p> <p>Allen, J., dissenting.</p>

<p>Appeal by plaintiff from Garter, /., at March Term, 1916, of MECKLENBURG.</p> <p>Civil action tried upon these issues:</p> <p>1. Was the plaintiff’s intestate’s death caused by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.”</p> <p>2. Did the plaintiff’s intestate contribute to her death by her own negligence, as alleged in the answer? Answer: “Yes.”</p> <p>3. What damages, if any, is the plaintiff entitled to recover? Answer : ....</p> <p>The plaintiff tendered the following additional issue: “Notwithstanding the contributory negligence of the plaintiff’s intestate, could the defendant, by the exercise of ordinary care, have avoided the injury and death of plaintiff’s intestate?” The court declined to submit this issue. Plaintiff excepted.</p> <p>From the verdict and judgment rendered, plaintiff appealed.</p>

<p>1. Judgments — Chambers—Issues of Fact — Agreement of Parties.</p> <p>A judgment rendered by the court, without a jury, upon issuable facts raised by the pleadings, in the absence of consent of the parties, invades the province of the jury, and is not conclusive; but where such facts are found to be in favor of plaintiff appellant, in accordance with the allegations of the complaint, the objection is not open to him on appeal.</p> <p>2. Contracts — Options on Lands — Specific Performance.</p> <p>The purchaser of an option on land who in accordance with its terms tenders to the owner of the land the purchase price agreed upon, within the specified time, may maintain his action for specific performance of his contract, upon refusal of the owner to make the contemplated conveyance, and his demand will be enforced if his option is a legally valid one.</p> <p>3. Trusts — Trustees—Courts—Delegation of Powers.</p> <p>A trustee appointed by tbe court to sell lands for tbe benefit of tbe creditors of the judgment debtor, or other beneficiaries, except by order of court or unless otherwise provided by the instrument under which he acts, may not grant an option on the land subject to the trust, to another, for a protracted and indeterminate period; for his selection as a trustee implies some measure of confidence in his judgment and discretion in the performance of the duties imposed on him at the time of sale, which he is not permitted to refer to another.</p> <p>4. Same — Options on Land — Protracted Litigation — Benefits—Liens.</p> <p>A trustee appointed by the court to sell the lands of a judgment creditor is not, by the sole virtue of his appointment and without express authority in the order thereof, empowered to grant an option thereon upon condition that the optionee, at his own expense, bring suit to remove a cloud upon the title of the lands, and, if successful, pay the agreed price within sixty days from the final termination of the suit; but where the optionee, in accordance with the terms of his agreement, has incurred the costs of successful litigation, beneficial to the trust estate, he is entitled to recover such costs, with reasonable attorneys’ fees, and the same will constitute a prior lien upon the proceeds of the sale of the land, which must thereafter be made by the trustee and administered in accordance with the authority conferred upon him. As to whether the trustee could give an option on the lands for a short and definite period, with the view of promoting a present and advantageous sale, quwre.</p>

<p>Processioning — Title—Estoppel.</p> <p>Proceedings for processioning the boundaries between lands of adjoining owners may not put the title in issue, but this may now be done under our statute, Revisal, sec. 717; and a final adjudication thereupon will operate as an estoppel both as to title and the correct location of the disputed line.</p>

Civil actioN tried before Ferguson, J., and a jury at January Term, 1916, of CheRokee. Defendants were partners in tbe drug business and on 25 August, 1910, bought one car-load of coal from tbe plaintiffs, wbo were coal dealers at Knoxville, Tenn. Tbey paid tbe price of tbe same, wbicb was $71.05. 'When the coal was received by defendants, they used some of it at their homes and the rest was used in the stores.

<p>Appeal by plaintiffs from Harding, J., at March Term, 1915, of YadkiN.</p> <p>Civil action, tried upon these issues:</p> <p>1. Did George W. Brown, deceased, have sufficient mental capacity to execute the deed from George W. Brown and wife, Priscilla Brown, to Mark Brown, dated 25 September, 1910, recorded in Book S, page 260, at the time of the execution of said deed? Answer: “Yes.”</p> <p>2. Did George W. Brown, deceased, have sufficient mental capacity to execute the deed from George W. Brown and wife, Priscilla Brown, to Henry Brown, dated 25 September, 1900, recorded in Book S, page 262, at the time of the execution of said deed ? Answer: “Yes.”</p> <p>3. Did George W. Brown, deceased, have sufficient mental capacity to execute the deed from George W. Brown and wife, Priscilla Brown, to Henry Brown, G. B. Vestal, and T. W. Wagoner, dated 19 January, 1903, recorded in Book U, page 13, at the time of the execution of said deed? Answer: “Yes.”</p> <p>4. Did George W. Brown, deceased, have sufficient mental capacity to execute the deed from George W. Brown and wife, Priscilla Brown, Mark Brown and wife, J. D. Brown, to Henry Brown, dated 27 March, 1903, recorded in Book U, page 110, at the time of the execution of said deed? Answer: “Yes.”</p> <p>5. Was the execution of the deeds referred to above in the first, sec•ond, third, and fourth issues by George W. Brown or either of them procured by fraud, or the exercise of undue influence of the defendants, or of any of them, upon said George W. Brown? Answer: “No.”</p> <p>6. Did George W. Brown die seized and possessed of any land not described in the deeds above referred to in the first, second, third, and fourth issues ? Answer: “No” (by consent of plaintiff and defendant).</p> <p>7. Did George W. Brown die seized and possessed of the land described in the complaint? Answer: “No.”</p> <p>From the judgment rendered, plaintiff appealed.</p>

Civil action tried before Connor, J., and a jury, at January Term, 1916, of Wake.

Appeal by defendants from Long, J., at October Term, 1916, of BUNCOMBE. Civil action tried upon these issues: 1. Did E. A. Ludette have authority from the defendants to execute the paper-writing set out in the complaint? Answer: “Yes.” 2. Are the defendants indebted to the plaintiffs, and if so, in what amoimt? Answer: “Yes; $650.” From the judgment rendered, the defendants appealed.

Civil actioN, tried before Webb, J., at January Term, 1915, of Buktcombe.

Civil ACTION, tried before Devin, J., at January Term, 1916, of Due-ham; upon these issues: 1. Was the plaintiff injured by the negligence of the defendant, Wells Brothers Company of New York, 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.

<p>Appeal by sundry creditors of defendant from Peebles, J., at November Term, 1915, of Wake.</p>

<p>PetitioN to rebear tbe above entitled case, wbicb was decided at tbe last term (170 N. 0., 253).</p>

<p>Civil actiow tried before Harding, J., at Spring Term, 1916, of Bubt-combe, upon these issues:</p> <p>1. Was plaintiff’s property injured by tbe negligence of tbe defendant, as alleged ? Answer: “Yes.”</p> <p>2. Did tbe plaintiff, by ber own negligence, contribute to tbe injury, as alleged? Answer: “No.”</p> <p>3. Wbat damage is plaintiff entitled to recover? Answer: “$800, witb interest.”</p> <p>From tbe judgment rendered, tbe defendant appealed.</p>

Civil actioN tried before Harding, J., and a jury, at February Term, 1916, of BuNcombe. Tbis is an action brought upon the drafts described in the complaint, five for $200 each, dated 18 February, 1880, and one for $400, dated 19 February, 1880. The drafts were drawn in favor of the plaintiff by H. S. Harkins, intestate of tbe defendant, then a deputy United States marshal, on E. M. 'Douglas, United States marshal, and were never accepted by the drawee.

<p>Civil actiok, tried before Adams, J., at November Term, 1915, upon, these issues:</p> <p>1. Was the death of the plaintiff’s mule caused by the negligence of the defendant Henkle-Oraig Live-stock Company, as alleged in the complaint? Answer: “Yes.”</p> <p>2. Was the death of the plaintiff’s mule caused by the defendant R. A. Bass, as alleged in the complaint? Answer: “Yes.”</p> <p>3. What damage, if any, is plaintiff entitled to recover? Answer: “$100.”</p> <p>From the judgment rendered, the defendants appealed.</p>

Civil actioN tried before Ferguson, J., and a jury, at October Term, 1915, of JacKSON, Plaintiffs sued for $54.45 due by account for labor performed. They were employed by one Frank Bailey to cut certain timber belonging to tbe defendants. Bailey bad been employed by defendants to cut tbe timber and be employed plaintiffs to belp bim. Tbey cut a part of tbe timber and received av/written order from Frank Bailey to tbe defendants to pay tbem tbeir wages, wbicb amounted to $75.

<p>1. Vendor and Purchaser — Contracts—Fraud—Trials—Evidence.</p> <p>Parol evidence that the plaintiff’s salesman procured the written contract for the sale of jewelry sued on by falsely representing that certain named responsible dealers had purchased similar jewelry from him is sufficient to sustain a verdict setting aside the writing for fraud, and the evidence is not objectionable under the statute of frauds.</p> <p>2. Quantum of Proof — Fraud—Sale of Goods.</p> <p>It is not required that the defendant show fraud in the procurement of a written contract for the sale of goods, by clear, strong, and convincing proof, when such fraud is relied upon in defense of an action to recover the contract price.</p> <p>8. Instructions Requested — General Charge — Appeal and Error — Harmless Error.</p> <p>An erroneous prayer for instruction asked by appellant, and substantially given by the judge in his general charge is harmless error.</p> <p>4. Contracts, Written — Fraud in Procurement — Parol Evidence.</p> <p>Where a written contract is sought to be set aside upon parol testimony as to fraud in its procurement, the rule that the writing affords the best evidence of the contract has no application.</p>

<p>1. Telegraphs — Vendor and Purchaser — Principal and Agent — Contracts— Negligence — Damages.</p> <p>Where according to custom between the parties the sendee of a telegram purchased on his 'own account cotton seed to be shipped to the sender at a price stated in the message, but by reason of an error in its transmission he had purchased to sell at a higher price than that actually authorized, the telegraph company cannot be considered the agent of the sender in making the contract, or bound by the terms of the erroneous telegram, when the sender has before shipment ascertained the error in the telegram, and voluntarily pays for the seed at the higher price, and he may not recover, in his action against the company, the difference between the price authorized and that negligently stated in the telegram, but only nominal damages, or the cost of the message. As to whether substantial damages could be recovered had the seed been accepted without knowledge, of the error, and damages had been sustained by the sender, with no means of recouping his loss, quasre.</p> <p>2. Same — Extra Expense.</p> <p>In this action it is Held, that the sender of a telegram erroneously transmitted as to the price offered for cotton seed may not recover, as an element of damages, money expended on certain trips taken, as they in no wise referred to the subject of his action nor were they connected therewith.</p> <p>3. Telegraphs — Yendor and Purchaser — Principal and Agent — negligence— Damages — Duty of Sender.</p> <p>It is the duty of the sender of a telegram, which has erroneously been transmitted, to his knowledge, to minimize the loss resulting to him, whether arising by contract or in tort; and where the telegram was for the purchase of cotton seed, he may not voluntarily enter into a new contract at the erroneously stated price, when he might have refused to take the seed, and then hold the telegraph company to the payment of his loss.</p>

Civil ACTION tried before Ferguson, J., and a jury, at August Term, 1915, of Ieedeií. Plaintiff sued for tbe recovery of damages for tbe breach of a contract for tbe sale and purchase of 500 barrels of flour.

Civil ACTION tried before Ferguson, J., and a jury, at January Term, 1916, of Cherokee. Tbis is an action to recover $104 alleged to be due under a contract by tbe plaintiff to furnisb tbe defendants certain metal cuts to be used in tbe local paper where tbe defendants did business, in advertising tbe business of tbe defendants.

Civil actioN beard by Carter, at February Term, 1916, o£ Mece:-LENBURG. Tbe agreed facts are substantially as follows: Plaintiff contracted to convey to defendant an indefeasible fee-simple title to certain land in Mecklenburg County, for which defendant contracted to pay plaintiff the sum of $7,000.

Civil actioN pending in tbe Superior Court of McDowell County, beard at chambers at Marion, 3 February, 1916, by Justice, J. From tbe order made tbe petitioners William Morrison and N. B. Mills and tbe defendant tbe Piedmont Hardware Company appealed.

<p>Appeal by defendant from Long, J., at January Term, 1916, of CABARRUS.</p>

<p>1. Equity — Deeds and Conveyances — Correction—Quantum of Proof — Instructions — Trials—Questions for Jury.</p> <p>Wliere there is sufficient evidence of mutual mistake of the parties to a deed sought to be corrected in a suit, it is for the jury to decide whether it is clear, strong, and convincing, under a proper charge from the court.</p> <p>2. Equity — Deeds and Conveyances — Correction—Mutual Mistake — Draftsman.</p> <p>Equity will correct or reform a deed to lands inter vivos, where through mutual mistake, or the mistake of one of the parties induced or accompanied by the fraud of the other, it does not, as written, truly express their agreement; and this principle extends to the mistake of the draftsman in failing to express the terms of the agreement for the parties thereto,- in accordance with their instructions.</p> <p>8. Same — Evidence—Denial of Mistake — Questions for Jury.</p> <p>Where the evidence is conflicting as to whether a deed, through mutual mistake, or the mistake of the draftsman, failed to express the intention of the parties, as written, a denial of the mistake by one of the parties will not of itself defeat the equity for correcting the instrument, and the issue is for the determination of the jury, under proper instruction from the court as to the degree of proof required.</p> <p>4. Equity — Deeds and Conveyances — Correction—Privity-—Parties.</p> <p>The equitable relief of correcting a deed for mutual mistake or. fraud will not be afforded one who is not a party to the original transaction, or claiming under or through the parties in privity.</p> <p>5. Same — Registration—Statutes.</p> <p>Since the enactment of our registration law, chapter 147, Public Laws 1885, a grantee in a deed to lands acquires title thereto, as against subsequent purchasers for value, from the date of the registration of the instrument (Revisal, sees. 979, 980); and where the grantor conveys the standing timber on land to A., and thereafter the land itself to B., who had his deed registered before that of A., and the former seeks to have B.’s deed corrected for mutual mistake or the mistake of the draftsman, the registration of the deed to B. makes it the first effective deed, and A., claiming title under his timber deed from the grantor of the land, is, consequently, in privity with B„ and acquires, under the statute, the equity to have the deed corrected in his suit for that purpose against B,, and the common grantor is not a necessary party. Revisal, sec. 980.</p> <p>6. Equity — Deeds and Conveyances — Correction—laches.</p> <p>Where the timber on lands is conveyed to A. for a valuable consideration, and later his grantor conveys the lands to B., and the latter has his conveyance registered first, and A. seeks to have B.’s deed corrected so as to show that by mutual mistake of the parties it included the timber theretofore granted to him, it is held that A.’s right to the enforcement of the equity will not be lost by his failure to have his deed sooner recorded, for if he succeeds in establishing his right it would be unconscionable to permit B. to keep the timber for which he has not paid, and which he knew was not intended to be conveyed to him by the deed.</p>

<p>Civil actioN, tried by Bond, J., and a jury, at November Term, 1915, of Pitt.</p> <p>This is a proceeding for the partition of land, tried upon an issue as to the legitimacy of the plaintiff, Hattie West.</p> <p>It was admitted by the defendant: “That if plaintiff, Hattie West, is a legitimate child of William Wesley Redmond, alias Redmond Blow, alias Little Red Blow, tben sbe owns an undivided one-balf interest as tenant in common witb defendant (owner of the other half interest) in the land described in complaint.”</p> <p>It was agreed by both sides that said William Wesley Redmond, alias Redmond Blow, alias Little Red Blow, was lawfully married to Olivia Wilkins; that both husband and wife are dead; that plaintiff, Hattie West, daughter of said Olivia, was born a few months after said marriage, and that said William Wesley Redmond was where he could have had access to said Olivia at time said Hattie was begotten. •</p> <p>The defendant proposed to offer, subject to its competency and legal effect, evidence tending to show the following facts:</p> <p>1. Record of marriage, showing marriage between said Olivia Wilkins and said William Wesley Redmond on 31 January, 1890.</p> <p>2. That Hattie (plaintiff) was born 25 May, 1890.</p> <p>3. That a few days thereafter William Wesley Redmond and Hattie’s mother (his wife) had a quarrel, in which William said he was not the father of Hattie and he was going to leave said Olivia, at which time said Olivia admitted that William was not Hattie’s father, but that Henry Wilkes was, and said she reckoned Henry was able to take care of Hattie; that they then separated and never lived together thereafter; that defendant claims Hattie resembles Henry Wilkes and does not resemble William Wesley Redmond, and that Olivia on numerous occasions said Hattie was not William’s child.</p> <p>This evidence was'excludcd, and the defendant excepted.</p> <p>There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.</p>

<p>Appeal by plaintiff at October Term, 1915, of WayNe, from judgment of Devin, J., sustaining tbe demurrer ore tenus to tbe complaint.</p>

<p>, .Appeal by defendant from Goolce, J., at November Term, 1915, of PasototaNic</p>

AotioN tried November Term, 1915, of Noethampton, before Lyon, J., upon these issues: 1. Was the intestate of the plaintiff killed by the negligence of the defendant? Answer: “Yes.” 2. Was the plaintiff’s intestate guilty of contributory negligence? Answer: “Yes.” 3. Did defendants’ employees bave knowledge of tbe -intestate’s position ? If so. could tbe defendant bave avoided tbe killing of tbe intestate by tbe exercise of proper care? Answer: “Yes.” 4.

<p>1. Vendor and Seller — Burden of Proof — Negative.</p> <p>Upon this petition to rehear, the ruling in the opinion, 168 N. C., 621, putting the burden on defendant of proving he was a purchaser for value, is affirmed, and for the .further reason that otherwise it would put the burden on one unacquainted with the facts, to prove a negative.</p> <p>2. Apueal and Error — -Affirmation of Judgment — Bower Courts — Reasons Given.</p> <p>The Supreme Court will affirm a judgment appealed from if supported by facts and in accordance with law, although the reasons assigned in its support may not be approved.</p>

ActioN to recover tract of land, tried September Term, 1915, of Sampson, before Connor'. J., -upon these issues: 1. Was tbe plaintiff tbe owner and entitled to tbe possession of tbe lands set out in tbe complaint and described on map as tbe 16%-acre tract? Answer: “Yes.” 2. Is tbe defendant in tbe wrongful possession of any part of said tract? Answer: “Yes.” 3. What damages, if any, are tbe plaintiffs entitled to recover of tbe defendants?

AotioN tried at August Term, 1935, of Feanklin, before Peebles, J., upon these issues: 1. Were tbe lands of tbe plaintiff damaged by tbe negligence of tbe defendant? Answer: “Yes.” 2. What damage, if any, has plaintiff sustained thereby? Answer: “$1,000.” Tbe following issue was tendered by tbe defendant, which tbe court refused to submit: 1.

<p>Appeal from order of Daniels, J., November Term, 1915, of Colum:-bus, upon motion of defendant to dismiss for’-want of service.</p> <p>The court permitted an amendment to the original summons by striking out the word railroad and substituting railway, and made an order that an alias summons be issued and served upon the Norfolk and "Western Railway. The defendant appealed.</p>

ActioN tried before Peebles, J., and a jury, at August Term, Í915, of FRANKLIN. This is an action to recover the amount of a policy of insurance on the life of Mary I. Parrish, the defense being that she falsely stated in her application that she did not have cancer of the womb. The jury rendered the following verdict: 1. Did Mary I. Parrish in her application falsely represent to the defendant that she did not have cancer of the womb, knowing said representation to be false?

ActioN tried at June Special Term, 1915, of Sueey, before Shaw, J., for tbe alleged negligent killing of plaintiff’s intestate, an employee of defendant at its quarry. A motion to nonsuit at close of tbe evidence was sustained. Plaintiff appealed.

Action tried before Shaw, J., and a jury, at June Special Term, 1915, of Sueey. Tbis is an action to recover damages for personal injuries sustained by plaintiff while a passenger on tbe defendant’s mixed train. Tbe plaintiff purchased a ticket from Pilot Mountain to Winston-Salem over defendant’s road. The train was composed of several freight cars and itwo passenger cars.

ActioN to redeem land alleged to be encumbered by a mortgage, and to recover possession of same, tried before Justice, J., at November Term, 1915, of Davidson. Defendant denied the right to redeem, claiming sole and unencumbered ownership of the property. There was judgment for plaintiff, and defendant excepted and appealed.

Appeal by plaintiff from Qline, J., at August Term, 1915, of Subby. Action to recover damages for injury to horses belonging to the plaintiffs, alleged to have been caused by the negligence of the defendant. • The issues of negligence were answered in favor of the defendants under a peremptory instruction of his Honor that if the jury believed the evidence, to answer the issues “No,” and the plaintiffs excepted.

ActxoN tried before Cline, J., and a jury, at September Term, 1915, of FORSYTH. This is an action to recover $186.32, the purchase price of certain paper bags which the plaintiff alleges it sold to the A. E. Messick Grocery Company, the defendant in this action, to. be shipped to the Yadkin Lime Company. The principal contention of the defendant is that the bags were sold to the lime company and not to the defendant grocery company.

Appeal by defendant from Cline, J., at August Term, 1915, of Surry. This is an action by tbe plaintiff, who was a passenger upon a mixed train, to recover damages for personal injury sustained, as be alleges, by tbe negligence of tbe defendant in causing a sudden movement of tbe train. Tbe jury answered tbe issue as to negligence in favor of tbe defendant, and from tbe judgment rendered thereon tbe plaintiff appealed.

ActioN tried before Beetles, J., and a jury, at October Term, 1915, of Wayne, to recover damages for personal injury. Tbe plaintiff was an inspector of lumber, and was in tbe immediate employ of tbe Dickson Lumber Company of Norfolk, Ya.

PetitioN to rebear opinion in action, tried before Whedbee, J., at April Term, 1915, of Beaufoet. At tbe conclusion of tbe evidence a motion to nonsuit was sustained. Tbe plaintiff appealed.

, at November Term, 1915, of Leitoir. At the conclusion of the evidence the motion to nonsuit was sustained. Plaintiffs excepted and appealed.

ActioN to recover damages for arrest and false imprisonment, tried before Webb, J., and a jury, at September Term, 1915, of Gaston.

ActioN tried before Lane, The action was to recover damages for breaking the leg of plaintiff’s mule by alleged negligence of defendant in operating an automobile. On denial of liability and on the issue as to negligence there was verdict for defendant. Judgment on the verdict for defendant, and plaintiff excepted and appealed.

ActioN tried before Ferguson, J., and a jury, at November Term, 1915, of CHEROKEE. Three actions were begun in the Superior Court of Cherokee County against the defendant; one by J. U. Wiggins and wife, Lillie Wiggins; one by Adeline Wiggins, and one by J. U. Wiggins, to recover damages alleged to have been sustained by the plaintiffs about 13 January, 1915, from blasting operations being conducted by the defendant.

<p>PetitioN to rehear. Appeal by defendant from Goolce, J., at September Term, 1914, of Cumberland.</p>

<p>1. Fornication and Adultery — Trials—Evidence—Questions for Jury.</p> <p>The evidence upon this trial for fornication and adultery, among other things, as to the relation of the man to his codefendant, his conduct with reference to her, his frequent visits to her house, day and night, etc., is sufficient to sustain a conviction.</p> <p>2. Fornication and Adultery — Evidence—Character — Instructions — Trials— Appeal and Error.</p> <p>A defendant upon trial for a crime has the right to offer evidence of his general good character and have it considered by the jury as substantive evidence, and it is reversible error for the trial judge to refuse a requested prayer for instruction to that effect upon such evidence.</p>

<p>Seduction — -Virtuous Woman — Evidence—Subsequent Conduct — Instructions —Appeal and Error.</p> <p>Upon trial for seduction under promise of marriage, Revisal, 3354, evidence of familiarities permitted by the prosecutrix after the act, not amounting to incontinency, does not negative the evidence that she was innocent and virtuous prior thereto, though properly considered by the jury with reference to her character and the weight of her evidence; and in this case a further remark of the judge that such conduct “a year after the seduction should not be taken against her for unrighteousness” was a repetition, in scriptural phrase,’ of what he had already charged.</p>

INDICTMENT, tried at November Term, 1915, of Nash, before Roun-tree. J., for violating tbe following ordinance of tbe town of Nashville: “No person or persons, firm or corporation shall build or cause to be erected any privy, stables, or stalls nearer to a neighbor’s residence than it is to tbe owner’s; and no privy shall be constructed nearer than 25 feet of any public street, under penalty of $25 for each offense.

<p>1. Evidence — Maps—Trials.</p> <p>A map may he used by a witness for the purpose of explaining his evidence, and upon a criminal trial for a willful burning of witness’s stable and barn, it is held competent for the witness to use a map for the purpose of showing the relative position of his house and outbuildings and the home of the defendants, when relevant to the inquiry.</p> <p>2. Criminal Law — Fires—Defenses—Instructions—Appeal and Error.</p> <p>Upon trial for the willful, etc., burning of a barn, etc., defended upon the sole ground that the defendant was elsewhere at the time, and presenting this as the only question, a charge of the court .was not erroneous which instructed the jury to convict the defendant should they find he was guilty of burning-the barn. 8. v. Millican, 158 N. C., 617, cited and applied.</p>

INDICTMENT for murder, tried at September Term, 1915, of New Hanover, before Rountree, J. The prisoner was convicted of murder in first degree, and from the sentence of death appeals.

INdictmeNt for murder of Leon B. Hudson, deceased, tried before Daniels, J., and a jury, at November Term, 1915, of New Hanover. Tbe evidence on the part of the State showed that on 31 August, 1915, deceased was killed by a gunshot wound, intentionally inflicted by defendant. There was no testimony offered by defendant, and, on the facts in evidence, the jury rendered a verdict of guilty of murder in the first degree.

ObimiNal action tried before Daniels, J., at January Term, 1916, of Cumberland. Held: been convicted and bad confessed guilt on indictment charging him with selling spirituous or vinous liquors.

<p>1. Intoxicating liquor — Evidence.</p> <p>Where the evidence on the trial for violating our prohibition law is sufficient for conviction, testimony of a witness that he had on two former occasions found bags of empty jugs, etc., in a woods back of the defendant’s dwelling, and some whiskey in the defendant’s pantry, will be received as a pregnant circumstance, though in itself it may be insufficient to convict.</p> <p>2. Criminal law — Evidence — -Defendant Not Testifying — Explanatory Evidence.</p> <p>Where the defendant is charged with violating our prohibition law, an instruction of the court is not erroneous which, in effect, tells the jury, specifically, that they should not consider the defendant’s failure to testify, but if they found -that the defendant could have explained the State’s incriminating evidence by other witnesses, and failed to do so, they may consider such circumstance against him. Goodwin v. Sapp, 102 N. C., 482, cited and applied.'</p>

INDICTMENT for unlawfully bringing whiskey into the State contrary to certain sections of the statute, chapter 97, Public Laws 1915, tried-before Justice, J., and a jury, at January Term, 1916, of Anson.

CRIMINAL action, tried before Ferguson, J., and a jury, at January Term, 1916, of Cherokee.

<p>1. Homicide — Identification—Evidence—Corpus Delicti.</p> <p>Where upon the trial for murder there is sufficient evidence that it was committed at a certain place on a country road about 7:20 a. m. of a certain day, and the defense is failure of identification, testimony offered on behalf of the defendants that two other men were seen at the place the evening before, without direct evidence connecting them with the corpus delicti, is inadmissible.</p> <p>2. Homicide — Evidence—Impeachment—Accusation.</p> <p>A question asked a State’s witness, on cross-examination, for the purpose of impeachment, if he had not been accused of stealing a hog from a certain person, and not whether he had been convicted thereof, is foreign to the issue, and properly excluded.</p> <p>3. Evidence — Homicide—Bloodhounds—Corroboration.</p> <p>Where the testimony on a trial for a homicide tends to show a murder had been committed, and that a bloodhound had been put upon the well-guarded human tracks at the place, which thereby trailed the defendants and identified them, and that the dog was of pure blood, had been trained for such purpose, and the action of the bloodhound is corroborative of the competent dying declaration of the deceased that the defendants had killed him, it is competent, and the question as to whether the trail was properly followed is one for the jury.</p> <p>4. Homicide — Evidence—Dying Declarations.</p> <p>Where upon a trial for a homicide there is evidence that the deceased was shot at 7:20 a. m. and when found stated there was no use for a doctor, for he would die, and identified the prisoner, then coming up, as the man who had shot him, and it appears that he died from the wound the evening of the same day, the declarations of the deceased are competent as dying declarations. _</p> <p>5. Homicide — Identification — Verdict — Instructions — Degrees of Murder— Statutes.</p> <p>Where there is evidence that a murder in the first degree has been committed, and the prisoner on trial relies only upon proving an alibi as his defense, the verdict will be considered in connection with the charge of the court, and where the court has properly instructed the jury to find the prisoner guilty either of murder in the first degree or not guilty, a verdict of guilty necessarily fixes the offense as in the first degree, and is a sufficient compliance with the statute, Revisal, sec. 3271.</p>

CeumiNal action, tried before Adams, J., and a jury, at January. Term, 1916, of Hendeirson.

<p>1. Criminal Law — Affray—Deadly Weapon — Courts—Jurisdiction.</p> <p>Where one of the parties to an affray has used a deadly weapon, the offense is cognizable in the Superior Court, though the other party had no deadly weapon at the time.</p> <p>2. Criminal Law — Warrant—Service—Appearance—Waiver.</p> <p>Where the accused voluntarily appears and defends a criminal charge brought against him in a court having jurisdiction, he waives service of the warrant and the fact that it was not sworn to.</p> <p>3. Criminal Law — Justice’s Court — Collusion—Pleas—Former Conviction— Special Verdict — Appeal and Error.</p> <p>Where collusion is shown-between the court of a justice of the peace, having tried the case, and the defendant accused of a criminal offense, the judgment should be declared void; and where it is shown by special verdict that the uncle of the defendant, at the instance of his father, had sworn out the warrant for an affray, in which the other had used a deadly weapon, and upon this trial no witness was sworn except the uncle, and the justice of the peace had previously agreed to “fix the matter” so that the defendant would not have to go before the Superior Court, it is Held, in the Supreme Court, on appeal, that the plea of former conviction was unavailing to the defendant, and judgment should be entered against him in the Superior' Court on the special verdict.</p>

<p>Appeal by defendant from ATlm, J., at November Term, 1915, of Al-AMANCE.</p>

CRIMINAL action tried before Gline,, J., and a jury, at October Term, 1915, of Surry. This is a criminal action in which the defendant was convicted of the crime of seduction under the statute, and appealed from the judgment pronounced upon the verdict.

<p>Appeal by defendant from Lane, J., at Spring Term, 1911, of Burke.</p>