Volume 172 — North Carolina Reports

<p>Appeal by plaintiff from Coolee, J., at November Term, 1915, of Pas-QUOTANK.</p> <p>Plaintiff sued to recover damages for a breach of contract in the sale of potatoes. It was agreed between the parties that on 25 October, 1912, plaintiff would sell and deliver at Elizabeth City, N. 0., 1,000 sacks of potatoes, known in the trade as Irish Cobbler and White Bliss, at $2.90 per sack of 11 pecks, the same to be sacked and shipped between 1 January, 1916, and 28 February, 1916, in cars of 250 sacks each, upon receipt of a written order of shipment from the defendants two weeks before the first named date, the potatoes “to be the best quality shipped from Aroostook County, State of Maine, by the said first party (plaintiff in this case), and in sacks of 165 pounds each, net; the same now being stored in warehouses in Maine which are owned and operated by the said party.” There was a further stipulation as to the price and the payment thereof by stated installments.</p> <p>Defendant alleged, and offered proof to show, that plaintiff failed to comply with this contract, in that instead of shipping potatoes of the quality described in their agreement, “it had shipped a bad lot of potatoes, being anything that grows in potato fields, from the smallest culls to the largest, being mixed and of three different kinds, the smallest being the size of a turtle egg and some as large as a cocoanut.”</p> <p>'Plaintiff tendered issues based on the terms of the contract, which the court rejected,, and submitted issues which, with the answers of the jury thereto, are as follows:</p> <p>“1. Was the plaintiff ready, willing, and able to deliver to the defendants 580 bags of Cobblers and 180 bags of White Bliss Irish potatoes, the best quality shipped from Aroostook County in 1913? Answer: ‘No.’</p> <p>“2. Did defendants wrongfully refuse to take the potatoes and pay for same? Answer: No.’</p> <p>“3. What damages, if any, is plaintiff entitled to recover? Answer: Nothing.’ ”</p> <p>The court admitted evidence, over plaintiff’s objection, as to correspondence and dealings between the parties prior to the execution of the written contract of 25 October, 1912, and as to the quality of the potatoes defendants had purchased from the plaintiff in 1912; and also oral evidence as to the kind and quality of potatoes the defendants contracted to buy, which were to be good, medium size, smooth, and bright.</p> <p>There was no evidence as to the kind or quality of potatoes which were shipped from Aroostook County, Maine, by the plaintiff in 1913, and plaintiff asked for an instruction based upon this lack of evidence, which was refused.</p> <p>Judgment was entered upon the verdict, and plaintiff, having reserved all exceptions taken during the trial, appealed to this Court.</p>

Ciyii, actioN tried before Bond, J., at January Term, 1916, of Cue-eituoe. This was an action to try the title to the office of register of deeds of Currituck County, the plaintiff alleging that he was duly elected to that office at the election in November, 1914, when he and the defendant were opposing candidates.

Civil actioN tried- before Peebles, J., and a jury at September Term, 1915, of ChowaN. The action was by abutting owner to recover damages of defendant for wrongfully cutting trees on a sidewalk, which afforded shade and shelter to plaintiff’s property.

Civil actioN tried before Allen, J., at May Term, 1916, of Beaueoet. This is an action to recover damages for injury to a shipment of tobacco, caused, as tbe plaintiff alleges, by the negligence of the defendant.

Civil actioN tried before Bond, J., at April Term, 1916, of Beaueoet. This is an action to restrain tbe sale óf certain land under execution, upon tbe ground tbat tbe sale and tbe deed made pursuant thereto will be a cloud on tbe title of tbe plaintiff. Prior to 7 March, 1912, tbe plaintiff L. P. Harris was tbe owner of tbe land in controversy, and on tbat day be conveyed tbe same to bis wife, Nellie J. Harris, who is also a plaintiff.

Civil ACTION for tbe recovery of land and for damages for trespassing thereon, tried before Bond, J., at February Term, 1916, of Pasquotahk.

<p>1. Water and Water-courses — Diverting Waters — Drainage Districts — Damages.</p> <p>A district created under the drainage statute is not a political agency of the State, and is liable for the wrongful diversion of water to the damage of a lower proprietor of lands lying beyond the boundaries of the district, when those claiming such damage are in no wise claiming under sucli proceedings or under any party thereto. Newby v. Gomrs., 163 N. C., 26, cited and distinguished.</p> <p>2. Same — Drainage Commissioners — Negligence—Unauthorized Acts.</p> <p>The commissioners of a drainage district are without authority to extend its canal beyond the limits of the district in such manner as to divert the flow of the water to the damage of the lands of the proprietor situate beyond its limits; and they are individually liable for such damages as are caused by their unlawful or negligent acts in so doing.</p>

Civil actioN to recover damages for assault and battery, tried before 0. H. Allen, J., and a jury, at May Term, 1916, of Hyde. Tbe jury rendered tbe following verdict: 1. Did tbe defendant wrongfully and unlawfully beat and assault tbe plaintiff, as alleged? Answer: “Yes.” 2. Wbat damages, if any, is tbe plaintiff entitled to recover tberefor ?

Civil actioN tried at January Term, 1916, of PasquotaNK, before Bond, J., upon these issues: 1. Did defendant wrongfully put or cause plaintiff to get off its train at Edenton, as alleged? Answer: “Yes.” 2. If so, what damage, if any, did the plaintiff sustain thereby? Answer: “$50.” From the judgment rendered, the defendant appealed.

<p>Appeal by defendant from Allen, J., at April Term, 1916, of TteRell.</p>

<p>1. Corporations — Insolvency—Agreement of Stockholders — Individual Action.</p> <p>• Where the stockholders of a corporation agree among themselves to contribute pro rata to pay off the corporation’s debts to enable it to continue in business, they may maintain their suit and enjoin one of them from enforcing the collection of a debt owed him by the corporation, contrary to his agreement to contribute, without making demand upon the corporation to do so.</p> <p>2. Appeal and Error — Interlocutory Orders — Necessary Determination. -</p> <p>While an appeal from this order restraining the enforcement of a stockholder’s judgment against a corporation is interlocutory in its nature, it will not be dismissed, it being necessary to determine the question to adjust the debts of the corporation and before further orders could be taken in the cause.</p>

Civil action, tried before Bond, J., and a jury, at January Terra, 1916, of WASHINGTON. Plaintiff brought this suit to recover damages for personal injuries to himself which, he alleges, were caused by defendant’s negligence in permitting a tree to fall upon him while he was riding on one of the flat-cars of its logging road in the discharge of his duties as its superintendent.

Civil actioN tried before Allen, J., at March Term, 1916, of Our-RITUCK. The following issues were submitted to the jury: 1. Has the plaintiff been damaged by the negligence of the defendant Norfolk Southern Railroad, by reason of transporting said sweet potatoes in an unsuitable and unfit car, as alleged ? Answer: “Yes.” 2. What damage, if any, is the plaintiff entitled to recover of the defendant Norfolk Southern Railroad?

Civil actioN tried before Whedbee, J., at July Special Term, 1916, of Edgecombe, upon appeal by tbe plaintiff of two causes from justice’s court, wbicb, by agreement, were consolidated and a single answer filed thereto. A jury was waived and trial by tbe court substituted. Tbe court rendered judgment upon tbe admitted fact.s and evidence for defendants. Tbe plaintiff appealed.

From Wilson. This is an action to restrain the defendants, the Atlantic Coast Line Railroad Company and the Toisnot Township Road Committee, from entering upon the land of the plaintiff and changing a public road, and from committing other trespasses thereon.

<p>Appeal by defendants from GooTce, J., at July Term, 1916,' of "WabeeN.</p>

<p>Appeal from Lyon, J., at February Term, 1916, of Habnett.</p>

Civil actioN tried before Devin, J., and a jury, at November Term, 1915, of HabNETT.

<p>Appeal by plaintiffs from Stacey, J., at April Term, 1916, of NORTHAMPTON.</p>

PetitioN for sale for partition, heard by Stacey, J., at February Term, 1916, of Bertie. The court being of opinion that certain judgment creditors and mortgagees, who held liens upon the undivided land, were improperly made defendants, dismissed the action a.s to them. To this ruling the plaintiff excepted and appealed. The court then decreed a sale of the land for partition among the tenants in common, all of whom are parties.

<p>Appeal from a -justice of the peace, heard by Stacey, J., at May Term, 1916, of YaNCe.</p> <p>At the conclusion of the evidence, the motion to nonsuit was sustained. The plaintiff appealed.</p>

Civil actioet to recover damages for an alleged trespass on real estate, involving also an issue as to title, tried before Devin, J., and a jury, at September Term, 1915, of HarNEtt.

Civil action- to recover damages for alleged negligent injury, beard on demurrer to complaint before Lyon, J., at May Term, 1916, of WayNE. There was judgment sustaining demurrer, and plaintiffs, having duly excepted, appealed.

<p>1. Carriers of Goods — Bills of lading — Written Demand — Limiting liability— Reasonableness — Burden of Proof — Trials.</p> <p>A stipulation in a bill of lading denying the carrier’s liability for damages unless written notice of such claim be filed within a specified period is in derogation of the common law, and while it will be upheld if reasonable, the burden of proof is on the carrier to show that it is.</p> <p>2. Carriers of Goods — Bills of lading — Stipulations—Interstate Commerce-Federal Courts — Reasonableness.</p> <p>Where the stipulation in a bill of lading for an interstate shipment of goods, as to the liability of the carrier for damages if written demand has not been made on it for such damages within a specified time, is the subject of the controversy, the question is one governed by the Federal law, and under this, as well as under our State decisions, it is required that to be valid such stipulations must be reasonable.</p> <p>3. Same — Ten Days — Perishable Goods.</p> <p>A stipulation in an interstate car-load shipment of perishable goods, such as dewberries, exempting the carrier from liability to the shipper caused by its negligence, unless written claim for damages shall have been filed with its agent at the.delivering point within ten days after its delivery, is unreasonable and unenforcible, according to our decisions, and will be so held in the absence of an authoritative ruling of the highest Federal court to the contrary. The effect of the adoption by the carrier of the bill of lading recommended by the Interstate Commerce Commission, containing the four months stipulation, discussed by Walker, J.</p> <p>4. Carriers of Goods — Bills of Lading — Written Claim — Requisites.</p> <p>Where a stipulation in a bill of lading requiring written notice to be given the carrier’s agent within a stated time, to enforce a demand for damages to the shipment, is reasonable, it is only necessary that the written claim shall be a plain and intelligible statement of the demand, and not that it be expressed in any particular form.</p> <p>5. Carriers of Goods — Consignment—Party Aggrieved.</p> <p>A shipper of goods on consignment may, as the party thereby aggrieved, maintain an action against the carrier for damages caused thereto by its negligence.</p>

Civil ACTION tried before Lyon,/., at April Term, 1916, of JohNStoN. This is an action to set aside a sale purporting to have been made under the power contained in a mortgage executed by the plaintiffs, Lucian Norris and his wife, Ava Ann Norris, to the defendant J. B. Hudson on 20 January, 1912, and the deed made pursuant thereto, and for an accounting.

Appeal by plaintiff from order of Stacy, J., dissolving a restraining order, 24 April, 1916, from íIeRteobd. This is an. action to recover damages for trespass on land, and during the pendency of the action the plaintiff applied for and obtained a temporary order restraining the defendants from further trespassing upon the said' lands. No copy of the affidavit or complaint was served with the restraining order.

Civil actioNs, from JIerteoRd, for tbe dissolution and settlement of a copartnership, beard before Winsbpn, J., on 1 August, 1916, at Winton, N. C., on motions for an injunction and receiver.

<p>Appeal by defendant from Lyon, J., at March Term, 1916, of Chat-ham;.</p>

<p>1. Railroads — Push Cars — Children—Dangerous • Places — Trials—Evidence— Megligence — Questions for Jury.</p> <p>Evidence tending to show that employees of defendant railroad company were operating a push-car loaded with cross-ties on defendant’s track, and asked plaintiff, a boy 8 years of age and some other children to help push the car to a switch to clear the track for an expected train; that to pass a trestle the lad jumped upon the car, and to avoid a cattle-> guard 700 yards beyond, and being warned thereof by the employees, the plaintiff again attempted to jump upon the car, but fell, to his injury; that the foreman of the gang saw the boy thus engaged and did not object; Held, upon a motion to nonsuit, sufficient evidence of defendant’s actionable negligence to take the case to the jury.</p> <p>2. Contributory Negligence — Children—Trials—Evidence—Questions of Law.</p> <p>A lad 8 years of age, injured while assisting, at their reqquest, the defendant’s employees in pushing a car loaded with cross-ties, and injured while endeavoring to jump on the car to ride across a cattle-guard, was too young to be guilty of contributory negligence under the facts of this case.</p> <p>8. Railroads — Children—Dangerous Places — Push Cars — Negligence.</p> <p>Where the defendant railroad company’s employees operating a push-car loaded with cross-ties invited or permitted a lad 8 years of age to help them, in consequence of which he was injured, and this conduct of the boy had been seen by the foreman of tliegang without objection; Held,, the company was liable, though it had theretofore forbidden its employees to permit children to thus help them.</p> <p>4. Same — Duty of Company.</p> <p>The plaintiff, a lad of 8 years, was injured while assisting employees of defendant railroad company to push a car loaded with cross-ties along the track, at their request, with the knowledge of the foreman. Held, it was not only the duty of the defendant to order the child away from the track, but it should have seen that he went away.</p>

<p>1. Drainage Districts — Constitutional law — Assessments — Irregularities— Collateral Attack.</p> <p>An assessment made under the provisions of our drainage laws is constitutional and valid, and when it does not appear to be void on its face, it may not be collaterally attacked by a defendant owner of lands embraced in the district, in an action to enforce its payment.</p> <p>2. Drainage Districts — Appointment of Assessors — Keport—Confirmation.</p> <p>It is immaterial whether the owner of lands in a drainage district, formed under our statutes had notice of a meeting at which a committee had been appointed to assess the lands in the district and determine the amount of each assessment, when the assessment has been accordingly made, and duly ratified and confirmed at a subsequent meeting regularly ealled and held in accordance with the statute, of which he had notice.</p> <p>3. Draijiage Districts — Assessments—Proceedings—Irregularities—Presumptions — Procedure.'</p> <p>Objection to an irregularity in making an assessment against the owners of land in a statutory drainage district, which does not avoid the assessment on its face, should be made to the properly constituted authorities of the corporation, and its collection will not be enjoined or set aside on account of defects or omissions of statutory requirements which do not affect the substantial justice of the assessment itself or render it void ab initio, the presumption being in favor of the regularity of the proceedings.</p> <p>4. Drainage Districts — Assessments—Liens—Courts—Jurisdiction.</p> <p>An assessment made upon owners of lands within a statutory drainage district constitutes a lien upon the lands therein and is enforcible by proceedings in rem in a court having equitable jurisdiction, in the absence of other provision of the statute; and personal judgment against the defendant may not be had, as in actions arising ex contractu; therefore, a justice of the peace has no jurisdiction over actions to enforce the payment of such assessments, and they will be dismissed upon motion to nonsuit when brought in that court.</p> <p>5. Drainage Districts — Assessments—Levy—Homestead.</p> <p>An owner of lands in a statutory drainage district may not claim Ms homestead exemption therein against an assessment levied thereon in accordance with the provisions of the statute.</p> <p>6. Drainage Districts — Assessments — Docketing — Enforcement — Levy — Courts — Supervision.</p> <p>Assessments upon lands within a drainage district made in accordance with the statute become liens on the lands when properly certified hy the officers of the corporation and docketed in the office of the Superior Court of the proper county; and executions may issue directing that such lands he sold to pay the assessments and the costs. Laws 1909, sec. 21; Pell’s Revisa], secs. 3996, 4003. Semhle, the courts will review hy writ of certiorari the action of the drainage corporation in making illegal assessments and enjoin such assessments that are absolutely void upon their face.</p>

' Civil ACTION from Edgecombe, beard on return to preliminary rej straining order and on motion to make the same permanent, before Connor, J., at Wilson, N. C., on 7 July, 1916. • There was judgment dissolving the restraining order, and plaintiffs^ having duly excepted, appealed.

Civil actioN, tried at June Term, 1916, of Halifax; Stacy, J. The usual issues in an action of this character were submitted to the jury and answered for plaintiff. His Honor set aside the verdict. The usual motions to nonsuit had been entered in apt time. The motion to nonsuit was allowed, and plaintiff excepted and appealed.

<p>Civil aotioN to recover damages for alleged negligent killing of plaintiff's intestate as be was endeavoring to cross tbe defendant railroad in tbe town of Sanford, N. 0., tried before Lyon, J., and a jury, at March Term, 1916, of Lee.</p> <p>There was denial of liability and plea of contributory negligence, and on tbe trial tbe jury rendered tbe following verdict:</p> <p>1. Is tbe plaintiff tbe duly appointed administrator of bis alleged intestate? Answer: “Yes.”</p> <p>2. Did tbe defendant negligently kill tbe plaintiff’s intestate, as alleged in tbe complaint? Answer: “Yes.”</p> <p>3. Did tbe plaintiff’s intestate, by bis own negligence, contribute to bis death? Answer: “No.”</p> <p>4. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer: “$1,878.”</p> <p>Judgment on verdict for plaintiff, and defendant appealed, assigning for error chiefly a denial of defendant’s motion to nonsuit and a refusal to charge that on tbe testimony, if believed, intestate was guilty of contributory negligence.</p>

<p>Civil actioN tried before Lyon, J., and a jury, at May Term, 1916, of Lee.</p>

<p>■ Appeal'by plaintiffs from Winston, Jat July Term, T916, of Hert-ford.</p>

Civil action tried before Whedbee, J., at February Term, 1916, of OíSAVEN. Plaintiff alleged that while in the service of the defendant, as a dogger at tbe sawing machine, the hammer-dog fell and broke the ■ saw into pieces and he was severely injured on his arm and hand by the flying pieces of the broken saw, which was the result of the defendant’s negligence in having for his use a defective machine.

<p>1. Wills — Trials—Evidence—Questions for Jury.</p> <p>In an action to set aside a will for mental incapacity and undue influence, testimony of a witness which tends to contradict his former evidence favorable to the sufficient mental condition of the testator is competent, the truth of the matter being for the jury to determine, and it is also competent for him to testify from his own knowledge as to- the mental capacity of the testator to make the will.</p> <p>2. Trials — Evidence Stricken Out — Appeal and Error — Objections and Exceptions.</p> <p>Where testimony on the trial has been stricken out by the judge at appellant’s request, his exception as to its admission is without merit on appeal.</p> <p>3. Wills — Evidence—Contradictory Testimony — Undue Influence.</p> <p>In an action to set aside a will for mental incapacity, and undue influence, it is competent for propounder’s witness to state, on cross-examination, that the testator was at the time entirely under the dominion, direction, and control of a religious denomination which is the principal beneficiary under the will, and, as corroborative of substantive evidence of mental incapacity, the dependent condition of testator’s family.</p> <p>4. Wills — Mental Incapacity — Undue Influence — Unanswered Issue — Appeal and Error — Harmless Error.</p> <p>Where a will has been caveated for mental incapacity and undue influence, and under proper evidence and instructions the jury has answered the first in favor of the caveators and left the second unanswered, exceptions to the admissibility of testimony as to undue influence become immaterial; but in this case it was proper upon the element of mental incapacity.</p> <p>5. Wills — Mental Incapacity — Undue Influence — Trials—Evidence—Questions for Jury.</p> <p>In an action to caveat a will there was conflicting evidence of mental incapacity and undue influence; that the wife of the deceased was dependent, that liis daughter had supported the family except for a small portion of the deceased’s income from his property; that the testator devised only a small amount of personal property and $2,500 in real estate to his family, and $20,000 to the Christian Scientist Church, which dominated his actions and of which he was a member. Held, sufficient for the jury under proper instructions.</p> <p>6. Same — Instructions—Burden of Proof.</p> <p>The instructions given by the court to the jury in this action to caveat a will, defining the right of the testator to dispose of his property as he pleased, applying the various phases of tiñe testimony to the issues of mental incapacity and undue influence, defining the former, and placing the burden of proof on the caveator, are approved.</p> <p>Bkown, J., dissenting.</p>

<p>1. Insurance — Fire, Tornadoes — Policy Contract — Interpretation—Statutes.</p> <p>. The rule of construction that a policy of fire or tornado insurance is construed against the insurer and in favor of the insured, when its terms admit of interpretation, applies to the statutory form of fire and tornado insurance policies.</p> <p>2. Same — Presumptions—Validity.</p> <p>The construction of a contract which will make it legal and binding will be adopted as against one that wili not make it so, when the contract would otherwise be susceptible of these two interpretations.</p> <p>8. Same — Stipulations—Future Conditions — Performance.</p> <p>When a tornado policy of insurance is issued on a building in course of construction, containing a stipulation that the policy is void unless the building were enclosed and under roof, and at the time of issuing the policy the building was not enclosed and under roof, but such had been done before the damages sought in the action had accrued, the stipulation in the policy fixed the time and conditions under which1 the policy should be valid; and as such had been done at the time of the damage and while the policy was in force, the insurer is liable for its payment.</p> <p>4. Insurance — Fire, Tornadoes — Stipulations — Conditions — Principal and Agent — Delivery.</p> <p>Where a policy against loss by tornadoes has been delivered by the agent of the insurer on its regular printed form, the agent knowing at the time that the building insured was not roofed and covered, which was required by a printed stipulation in the policy contract, the knowledge of the agent is imputed to his company.</p> <p>5. Same — Written Contracts — Parol Evidence.</p> <p>Where the authorized agent of an insurance company delivers to the insured a policy against loss by tornadoes, containing stipulations that the building insured shall be roofed and closed in, which the agent knew at the time had not been done, the policy provision that the agent could n.ot vary the terms of the written contract is construed as not applying to conditions existing at the inception of the policy.</p> <p>6. Principal and Agent — Evidence—Declarations of Agent.</p> <p>Declarations of an agent made after the event and as mere narrative of a past occurrence, are not competent as substantive evidence against the principal.</p> <p>7. Evidence — Principal and Agent — Insurance—Records—Corroborative Evidence.</p> <p>Where the agent of an insurance company has testified as to certain facts in connection with the delivery of a policy contract sued on, it is competent to introduce the record of the transaction made by him, in corroboration of his testimony.</p>

Civil actioh tried before Devm, J., at June Term, 1916, of Cahteket. This is a proceeding to protest an entry of land, heard upon motion of enterer to dismiss, for failure to file amended protest. C. E. Wheatley, at the time of filing of this protest and up to the March term of said court, 1916, was attorney of record of' the protestant.

Civil actioN tried before Devin, J., and*a jury at June Term, 1916, of Cabteket. Tbe action was brought by plaintiff to restrain defendant from foreclosing a mortgage, given by plaintiff and wife in 1905. The plaintiff and defendant'Hancock, in June, 1905, formed a partnership for the purpose of buying, bedding, and shipping clams. Hancock was to furnish the money to be used in the business, not exceeding $500, and Smith was to give his time and work when necessary.

<p>Appeal by plaintiff from Whedbee, J., at May Term, 1916, of Pitt.</p>

<p>1. Appeal and Error — Assignments of Error- — Rules of Court.</p> <p>Tbe rules of the Supreme Court regulating appeals are necessary for the proper consideration of the public business and will be impartially enforced against all litigants; and where the assignments of error are. not comprehensive enough to give a clear idea to the court of the matters to be debated without examining the record, they will not be considered, as, on this appeal, “to the question and answer in the admission of the evidence” of a certain witness, “as contained in the exception 1 on page --of the record”; and the giving of proper page will not cure its insufficiency.</p> <p>2. Deeds and Conveyances — Delivery-—Intent—Control of Grantor — Presumptions — Burden of Proof.</p> <p>An instruction as to the valid delivery of a deed, that should the jury find that the grantor intended to part with the deed to his wife, the grantee, under the evidence in this case, and lose legal control over it, he had no right to take it back, and that upon its registration, whether before or after the grantor’s death, the burden shifted to the other side to rebut the presumption of a valid delivery, is held to be a correct charge.</p>

<p>1. Wills — Interpretation—“Lawful Heirs” — Children—Contingent Interests— Defeasible Fee— Estates.</p> <p>A will should be construed as a whole and to give effect to every part; and in a devise to a granddaughter, S., of a certain house and lot, but should she die without lawful heirs, to certain named of the testatrix’s other grandchildren, to construe the word “heirs” as general heirs, and vest the fee simple in S., would he to render other terms of the will meaningless; and construing the will to arrive at the intent of the testatrix, it is Held, that the word “heirs” meant “children,” and that S. took a defeasible fee, to he divested if she die without leaving children surviving her.</p> <p>2. Same — lapsed Devise — Intestacy.</p> <p>A devise to S. of certain lands in fee, defeasible upon her death without children, in which event to go to those of her brothers, by name, one of whom died in the testatrix’s lifetime without having married, and S. and her other two brothers are now living and the sole heirs at law of the testatrix: Held, the testatrix died intestate as to the contingent interest of the deceased brother of S., one-third of which would vest in S.; and pending the happening of the event which would divest the title of S. to the other two-thirds, she cannot make a good and indefeasible fee-simple title to the entire property.</p>

<p>Appeal by plaintiff from Bond, J., at April Term, 1916, of LeNoiR.</p>

Civil, action to compel defendant board of elections of Waie County, by writ of mandamus, to place tbe name of plaintiff on the regular election ticket as one of tbe nominees of tbe Democratic Party for tbe position of Member of tbe General Assembly, tried before Bond, J., at July Term, 1916, of Waxe. There was judgment for plaintiff, and defendants excepted and appealed.

<p>Civil actioN heard by Allen, J., upon, a waiver of trial by jury, at May Term, 1916, of Beaufobt.</p> <p>W. P. Baugham- died in Washington, N. C., on 8 February, 1910, leaving a large estate and a will by which it was devised and bequeathed to his widow, Mary A. Baugham, and his children as therein set forth. The inheritance tax appraiser for Beaufort County, on 24 January, 1916, appraised the estate at $145,302, and, deducting the exemptions allowed by law and the value of án annuity to the widow, he found that the clear balance subject to the inheritance tax was $102,052, and the tax thereon $765.39. In estimating the value of the annuity to the widow he made the sum of $2,500 per annum the basis of his computation. The appraiser made his report to- the clerk .of the Superior Court,- and exceptions were filed thereto by the executrix and other parties interested in the estate, and the exceptions were heard by the court, and a reappraisement made, as will hereinafter appear upon facts found by the court.</p> <p>"W. P. Baugham left a widow and six children, five of whom were minors, being respectively 16, 14, 12, 8, and 5 years of age. He gave his property, both real and personal, to his children, subject to an annuity created for the benefit of h'is widow in the following terms: “I hereby direct an annuity be paid to my beloved wife, Mary A. Baugham, of whatever amount that she may require for her own use and maintenance and such of the children as she has in her care; and such of the amount as she uses to raise and educate the younger ones shall not be a charge against such minor child. I want my dear wife to have ample to live on and rear and educate our children, let it be $3,000 or $5,000 a year. I know she will only use what she needs, the same to be paid her as she may require it; this to remain in force during her widowhood, the same to be paid out of the increase of my estate — such as interest, dividends, rents, etc.”</p> <p>In regard to the value of the annuity, the court found the following facts: “At the time of the death of the said W. P. Baugham the said widow, Mary A. Baugham, was 41 years of age; that she was then and is now in good health, and there is no reason known why she should not live to the full expectancy contemplated by law. It is further found as facts that at the time of his death W. P. Baugham was survived by five minor children, with ages respectively of 16, 14, 12, 8, and 5; that the reasonable and proper expenses for the support of the said Mary A. Baugham has been from the time of the death of -W. P. Baugham $5,000 per year; that the said Mary A. Baugham has not remarried; that under the provisions of the will of W. P. Baugham there is to be, and has been since the death of W. P. Baugham, paid an annuity of $5,000 per year, which said annuity is created by the said will and the payment of same a lien and charge upon all of the' property and estate of said ~W. P. Baugham, passing by his will and which is appraised; that the cash value of the said annuity at the time of the death of the said W. P. Baugham was $66,500.”</p> <p>It was thereupon adjudged that there should be deducted from the total value of the estate the said sum of $66,500, which was based upon an annuity of $5,000, and the tax assessed and collected on the balance; whereupon the State Tax Commission appealed.</p>

Crvix, aotioN tried before Devin, J., at October Term, 1915, of Lee. Tbis is an action to foreclose a mortgage and to determine tbe right in certain lands as between first and second mortgagees. D. N. Black was tbe owner of tbe land, and on 81 November, 1909, be and bis wife, Sarab J. Black, delivered to tbe plaintiff a mortgage conveying said land to secure a debt of $281 due tbe plaintiff. Said mortgage was signed by tbe busband and wife.

Civil actioN to recover a tract of land, tried before Stacy, Jand a jury, at June Term, 1916, of 'W’ae.RBN. The evidence baving been introduced, on motion made in apt time, there was judgment of nonsuit, and plaintiff excepted and appealed. The cause was before the Court on a former appeal, and will be found reported in 168 N. 0., 315.

Civil actioN to recover freight charges, together with an account for demurrage and storage of goods, tried before Whedbee, J., and a jury, at May Term, 1916, of CbaveN.

Civil actioN beard by Lyon, J., at August Term, 1916, of Pitt, upon a motion to set aside a judgment, entered in tbe above entitled cause by consent of tbe parties, at May Term, 1916, of tbe same court. Walter Gardiner died in 1912, leaving tbe following will: AydeN, N. 0., 13 August, 1909.

Civil acI'ION tried at May Term, 1916, of Graven-, before Whedbee, J., upon the usual issues of negligence, contributory negligence, and damages. The jury answered the issues in favor of the defendants. The plaintiff appealed.

Civil ACTION tried on appeal from court of justice of peace, before Devin, J., and a jury, at June Term, 1916, of Oarteeet. The action was to recover the value of two bales of cotton destroyed by fire on the platform or in the warehouse of defendant company at New Bern, N. 0., in October, 1910.

Civil actioN tried before Whedbee, J., at May Term, of Pamlico. This is an action to recover damages for the loss of 125 crates of cabbage, tried in the Superior Court on appeal by defendant from a judgment of a justice of the peace. When the case was called for trial at May Term, 1916, the plaintiff moved to dismiss the appeal because it .was not docketed at the next term after the trial before the justice. The motion was denied, and the plaintiff excepted.

<p>Civil actioN tried before Devin, J., at June Term, 1916, of GkeeNB.</p> <p>This is a processioning proceeding to establish a line between tbe plaintiffs and tbe defendants, botb parties claiming title to tbe land in controversy.</p> <p>Tbe evidence tends to prove tbat tbe plaintiff, Sarab Holmes, bas a paper title covering tbe land, and while defendants claim to be purchasers, and that a deed under which they claim bas been lost or destroyed, they have to rely upon an adverse possession for twenty years without color.</p> <p>Tbe plaintiffs contend tbat tbe possession relied on by tbe defendants was not adverse to tbe plaintiff Sarab Holmes, because of her coverture, and also tbat tbe evidence itself was not sufficient to establish an adverse possession.</p> <p>There was a verdict and judgment for tbe defendants, and tbe plaintiffs appealed.</p>

Civil ACTION tried before Whedbee, J., at May Term, 1916, of Pamlico, a jury trial having been formally waived. On the facts as found by the court there was judgment for defendants, and plaintiff excepted and appealed.

This is a civil action, tried at January Term, 1916, of DupliN, before Allen, J., upon these issues: 1. Did the defendant wrongfully and unlawfully cut and remove timber from the lands of the plaintiff, as alleged in the complaint ? Answer: “Yes.” 2.What damage, if any, is plaintiff entitled to recover of the defendant? Answer: “$725.” From the judgment rendered, defendant appealed.

Civil actioN tried at January Term, 1916, of DupliN, before Allen, J., upon these issues: 1. Did the defendant wrongfully and unlawfully cut and remove the timber from the land of the plaintiff, as alleged? Answer: “Yes.” 2. lYRat damage, if any, is plaintiff entitled to recover of the defendant ? Answer: “$500 and interest from time cut until present date.” From the judgment rendered-defendant appealed.

<p>1. Appeal and Error — Reference—Findings of Fact.</p> <p>The findings of fact under a consent reference, and approved by the trial judge, are conclusive on appeal when there is evidence to support them.</p> <p>2. Appeal and Error — Assignments of Error — Rules of Court.</p> <p>Assignments of error must he clearly and intelligently stated so that the Court will not have to look at exceptions therein referred to in order that they may be understood; for otherwise they will not he considered on appeal. Thompson v. R. R., 147 N. C., 412, cited and applied.</p> <p>3. Same — Objections and Exceptions — Judgments.</p> <p>Where a judgment, based upon findings of fact by a referee, and approved by the court, is assigned for error on appeal, and the facts so found are conclusive, the assignment, so far as it relates to the facts, is scarcely more than formal, the judgment being a conclusion of law thereon.</p> <p>Hoke, J., dissenting.</p>

<p>Appeal by defendant from Connor, J., at February Term, 1916, of FRANKLIN.</p>

<p>Civil actioN tried before Connor, J., and a jury, at April Term, 1916, of Wake.</p> <p>The action was brought to recover a small strip of land about 5 feet wide, fronting on McDowell Street in the city of Ealeigh.</p> <p>The plaintiff claimed the land upon two grounds: First, that it was covered by a deed of James J. Litchford, administrator of John O’Eourke, the owner thereof, to Jonas Matthews, his ancestor, dated 11 November, 1868, and prior deeds connected therewith; and, second, that if the land was not conveyed by the said deeds, he has acquired title to it by the adverse possession of himself and those under whom he claims. The defendants denied the plaintiff’s ownership of the land, and the feme defendant specially alleged ownership in herself by inheritance from her father, L. S. Perry, who, she says, was the owner of it at the time of his death. "With respect to the claim of adverse possession set up by the plaintiff, the court charged the jury as follows: “The plaintiff says, further, that without regard as to how the lines may be located, or the corners may be located, according to maps, that he and those under whom he claims have been in the open, notorious, visible, exclusive, adverse possession of the strip of land for many years; that is, for many years, since 1868, and for years prior thereto; and he contends, gentlemen of the jury, that you ought to find that Jonas Matthews, when he took possession of this property under his deed in 1868, took possession of and held possession of the lot up to the fence which he contends that you should find was on this land; and that even if there had been an error in locating this line according to the maps, that he and those under whom he claims by adverse possession gained title, secured title to this strip.” And again: “I instruct you, further, gentlemen of the jury, if you are satisfied by the greater weight of the evidence in this case that a deed was made to Jonas Matthews for this lot in 1868, that Jonas Matthews entered into possession of the lot described in this deed, that the lot described in the deed is the identical lot referred to in the pleadings and evidence in this cause, if you find from the evidence in the case that Dr. Perry was then living, and that he lived until 1872, and that Jonas Matthews continued in possession, and that at his death in 1912 the plaintiff here, Powhatan Matthews, as the devisee named in his will, went into possession of this lot, then I instruct you that your answer to this issue should be, “Yes; all.”</p> <p>The jury returned the following verdict:</p> <p>1. Is the plaintiff the owner and in the possession of the lot of land included within the red lines on the map made by E. B. Seawell, engineer, dated 20 April, 1916? Answer: “Yes; but not of 5-foot strip shown on map.”</p> <p>2. If so, did defendant trespass on said lot of land, as alleged in the complaint? Answer: “No.”</p> <p>3. If so, what sum, if any, is plaintiff entitled to recover of the defendants as damages for such trespass? No answer.</p> <p>From the judgment rendered, plaintiff appealed.</p>

Cim actioN tried before Bond, J., at January Term, 1916, of Pas-quotank:.

Cause beard on caveat to will of N. 0. Powell and motion to remove cause to Federal court before Peebles, J., at February Term, 1916, of HeRteoed, and again before Winston, J., at July Term, 1916.

, May Term, 1916, of VaNce, upon the following issue: Is tbe defendant indebted to the plaintiff? Answer: “No.” From the judgment rendered, the plaintiff appealed.

Civil ACTION tried before Lyon, J., at February Term, 1916, of HARNETT. Tbis is an action to recover possession of the tract of land described in the complaint, the rents and profits thereof during its occupancy by the defendants, and damages for the cutting and sale of certain timber. The plaintiffs allege that they are the owners in fee of the land and that the defendants are in the wrongful possession thereof, and these allegations are denied by the defendants.

This action is brought to recover certain alleged excessive taxes paid to defendant by plaintiff on fertilizing material stored in defendant’s warehouses in tbe city of New Bern during years 1907, 8, 9, and' 10. Tbe cause was beard by Devin, J., at April Term, 1916, of CbaveN, upon tbe pleadings, and a demurrer ore tenus sustained upon tbe ground that the complaint failed to state a cause of action. No amendment to complaint was asked.

Civil actioN tried before Bond, J., at March Term, 1916, of Saaipson. Tbis is an actipn to recover damages upon tbe ground of fraud in tbe sale of a tract of land. Held: on these facts, that the entry at October term of court, “Case continued. Time to file pleadings,” raised a presumption of an appearance or service, and as matter of law that the filing of the complaint was a Us pendens. The defendants excepted.

Civil action tried before Devin, J., and a ¡jury, at July Term, 1916, of Onslow. The action, by a passenger on defendant’s train in August, 1916, was to recover damages of defendant company for failure to exercise proper care in protecting plaintiff from an assault and battery by another passenger, George Wooten. On denial of liability, there was verdict for plaintiff, and defendant excepted and appealed.

Civil aotioN tried at April Term, 1916, of Wake, before Connor, J., upon these issues: 1. Is the plaintiff a corporation, duly authorized to conduct a banking business in the State of North Carolina, as alleged in the complaint? Answer: “Yes.” 2. Is the plaintiff purchaser for value without notice, and before maturity, of the note set out in the complaint? Answer: “No.” 3. In what sum, if any, is defendant indebted to plaintiff on note set out in complaint ?

PROCEEDING in tbe Superior Court of FranKlin for settlement of tbe final account of tbe above named executors. Tbe cause came before Bond, J., at chambers upon exceptions beard upon appeal from tbe clerk. From the judgment rendered, August Term, 1916, tbe executors of Mrs. Octavia H. Duke, J. W. Winston and J. W. Woodlief, and Joseph W. Winston individually, appealed.

<p>Civil actioN tried by Cooke, J., at May Term, 1916, of Wake.</p> <p>This is an action by the receiver of an insolvent corporation to recover upon a subscription to the stock of the corporation.</p> <p>The defendant admits the subscription to the stock and alleges the following as a defense; “But the defendant alleges that in signing his name to said paper he was not aware that he was binding himself to pay any shares of stock in said corporation.or making himself liable therefor, and that he, the said defendant, did not knowingly or intentionally contract or agree to take three shares or any other number of shares of stock in said corporation; that he, the defendant, was induced, persuaded, and misled to sign said paper by false statements and representations made by the said C. R. Towles, promoter of said corporation, that he, the said Towles, was .engaged in promoting or organizing a corporation to manufacture and sell shirts in the city of Raleigh, and that he was getting up a list of good, responsible people of Raleigh to sign their names to assist him in getting other people to take stock, and that it was not intended, nor his purpose, that the defendant should pay any money or take any stock or assume any financial obligation by reason of his signing said paper, and that the defendant was not required to take any stock or pay for any stock, and that the signing of said paper did not bind him to do so; that the defendant was induced by said representations to sign his name to the paper which was presented to defendant, without reading or examining' the same, and merely as an accommodation, as defendant was not interested in a proposition to manufacture shirts, knew nothing of the financial possibilities of the scheme, and had no money to invest in such ventures, defendant being engaged in the railway business as a train conductor and being thereby kept away from home and deprived of the time and opportunity to keep in touch with such enterprises; that the said representations and statements made by the said C. R. Towles were false and were made with a knowledge of their falsity, and were calculated and intended by the maker thereof to deceive the defendant, and that the defendant relied upon said statements and representations and was deceived thereby, and was induced thereby to sign his name to the said paper without reading the same; that the defendant did not discover said fraud, so practiced upon him, until after the financial failure of the said corporation and the appointment of a receiver thereof by the court; that no demand or notice to pay for any stock in the said corporation had ever been made upon defendant, and defendant had received no notice or information that he was considered a subscriber for said stock or liable therefor until the failure aforesaid and the appointment of said receiver, whereupon defendant promptly refused to pay any money on account of his alleged subscription for stock, and disaffirmed the same; and defendant hereby pleads said fraud in disaffirmation and repudiation of the alleged contract of subscription and in bar of the plaintiff’s right to recover thereon.”</p> <p>ITis Honor held that the matters alleged in the answer were not a defense, and rendered judgment on the pleadings in favor of the plaintiff, and the defendant excepted and appealed.</p>

Oivtx actioN to recover laud, tried before Rountree, J., and a jury, at October Special' Term, 1915, of Beunswick. On the issue as to title there was verdict for defendant. Judgment, and plaintiffs excepted and appealed, assigning for error chiefly that the court in its charge expressed an opinion on the value of certain testimony relevant to the issue.

Civil actioN to recover land, tried before Peebles, J., and a jury, at April Term, 1916, of New Hanoveb. At tbe close of the testimony, on adverse intimation from the court as to plaintiff’s right to recover, he submitted to a nonsuit and appealed.

Civil actioN tried before Daniels,■ J., and a jury, at May Term, 1916, of CUMBERLAND. The record sbows that plaintiff brought this action in the court of a justice of the peace to recover of defendant J. B. Rozier a debt of $151.56 for goods sold and delivered, and sued out an attachment which was on 27 September, 1915, levied on certain personal property of defendant, being the stock of goods and machinery in bis garage at Fayette-ville. N. 0.

Civil aotioN tried before Daniels, J., and a jury, at April Term, 1916, of BladeN. ■ Plaintiff alleged that defendant, which operated a tramroad on its premises in 1914, on which was run an engine and log trucks, had negligently permitted sparks or live coals to escape from the engine, so that the stubble and other combustible material lying by the side of the railroad track caught fire, which spread and burned a large part of his timber near by.

<p>1. Limitations of Actions — Trespass—Damages—Cutting Treesi — statutes.</p> <p>Where the defendant pleads the three years statute of limitations to .an action for trespass, with damages for cutting timber on lands, the burden is on the plaintiff to prove that he commenced his action within the time prescribed; and where from an analysis of the evidence it appears that this has not been done, a judgment of nonsuit is proper. Re-visal, see. 395 (4).</p> <p>2. Same — Against State.</p> <p>Construing Revisal, sec. 4048, providing that no statute of limitation shall effect the title or bar the action of one claiming it under an assignment from the State Board of Education, unless the same would protect the person holding the claim adversely to the State, with sections 375, 380, and 389, it is Helé, that the limitations as to color for twenty-one years, and without for thirty years, do not apply to personal actions after the State has parted.with her title to the lands; and the three years •statute to recover damages for trespass in cutting and removing trees from the land applies under the facts in this case. Revisal, sec. 395 (4).</p> <p>Alleií, J., did not sit.</p>

Civil actioN tried at March Term, 1916, of DupliN, before Allen, J. The action was brought to recover damages for cutting timber on plaintiff's land and removing it therefrom. The defendant, a corporation of Norfolk, Ya., on 26 May, 1911, “granted and sold” to the Camp Manufacturing Company, a corporation of Isle of Wight County, Ya., the standing timber, “owned by said Cape Eear Lumber Company,” on a large body of land in Duplin County.

Civil aotion tried before Connor, J., and a jury, at March Term, 1916, of Wake.

Appeal by defendants from Stacy, J., at chambers in New HaNovek, 16 March, 1916: This was a motion for leave to issue execution, heard upon agreed facts. The plaintiff obtained judgment against the defendants in 1902, and on execution issued the homesteads of defendants were allotted. In 1910 the defendants filed a petition in bankruptcy, in which proceeding the -plaintiff proved his judgment as an ordinary unsecured debt, not asserting any lien upon the allotted homesteads.

<p>Deeds and Conveyances — Interpretation—Vague Description — Habendum— General Description.</p> <p>Words descriptive of lands sought to be conveyed in a deed are regarded as inserted for a purpose, and should be given a meaning that would aid the description; and where the writing manifests an intent to convey a tract of certain acreage, and the specific description in the conveying part of the instrument is too indefinite, it will not control a general description, following the habendum, which refers to another and recorded deed, from which the lands may definitely be ascertained.</p>

, at April Term, 1916, of New Haitover. This is an action to recover $706.32, a balance alleged to be due for the installation of an elevator in the hotel of the defendant, then in course of costruction. The plaintiff did not allege a special contract in the complaint, but sought to recover the value of the property. The defendant filed answer denying the material allegations of the complaint, including the allegation that the plaintiff was a corporation.

, at January Term, 1916, of EobbsoN, setting aside a judgment under section 513 of tbe Eevisal. Tbe action was commenced in Eobeson County on 9 April, 1914, and tbe summons was served on tbe defendant 14 April, 1914. Tbe purpose of tbe action was to recover damages for an alleged breach of contract in tbe purchase of certain timber lands in Bladen County.

<p>1. Trusts and Trustees — Parol Trusts — Deeds and Conveyances.</p> <p>A grantor in a conveyance of lands reciting the consideration that the grantee should pay off a certain mortgage thereon is estopped -by his deed from setting up a resulting trust in his favor and want of consideration, and showing that the grantee agreed by parol to pay off the mortgage from the rents and profits of the land.</p> <p>2. Deeds and Conveyances — Consideration—Parol Evidence.</p> <p>While parol testimony is competent to contradict the consideration recited in a conveyance of land, it may not change, alter, or contradict the conveyance itself, in the absence of fraud, mistake, or undue influence.</p> <p>8. Trusts and Trustees — Parol Trusts — Deeds and Conveyances — Statute of Frauds.</p> <p>A parol trust in favor of the grantor, that the grantee pay off a mortgage thereon from the rents and profits, being unenforcible, it is incompetent to further show by parol that the grantee had then obligated himself to sell the lands and pay his grantor a part of the proceeds of sale, as such falls within the meaning of the statute of frauds.</p>

<p>Evidence — Vendor and Purchaser — Delivery—Trials.</p> <p>Where there is evidence of a contract between plaintiff and defendant railroad company for the sale of cross-ties; that plaintiff placed certain of these ties where the defendant customarily received them from plaintiff and others; that these were seen being loaded upon cars at this place by persons appearing to be defendant’s employees, it is Held, sufficient upon the question of delivery and acceptance by the defendant of the ties to be submitted to the jury.</p>

, at chambers, 17 December, 1915; from LENOIR. This is a motion to recall an execution issued to enforce the collection of a money judgment.

<p>Appeal from Peebles, J., at April Term, 1916, of New Haitovee.</p> <p>This is an action brongbt by the plaintiff against the defendant feed company, before George Harriss, justice of the peace, to recover the amount of $106.50, claimed by tbe plaintiff to be due and owing to it by the defendants for commission on certain goods sold. An attachment was issued against the proceeds of a certain draft in the Murchison National Bank, and the Bank of Commerce and Trust Company of Memphis intervened and claimed ownership of draft. Judgment was rendered in the justice’s court against the defendant, and the intervenor, the Bank of Commerce and Trust Company, appealed to the Superior Court.</p> <p>In the Superior Court, when the case came on for trial, the plaintiff offered evidence as to its debt, and the intervenor offered evidence as to the ownership of the draft. The following issues were submitted to the jury, the first issue being submitted at the request of the plaintiff and the second at the request of the intervenor:</p> <p>First. What amount, if any, is plaintiff entitled to recover? Answer: “$106.50.”</p> <p>Second. Is the Bank of Commerce and Trust Company, the inter-venor, the owner of the proceeds of the draft attached in the cause, and entitled to possession of the same?</p> <p>The evidence of the debt was not disputed, and the court directed the jury to answer the first issue “Yes; $106.50,” if they believed the evidence. There was no exception taken by the defendant, as it did not appear and make a defense, but appearance and defense was made by and for the intervenor, Bank of Commerce and Trust Company.</p> <p>The court directed the jury to answer the second issue “No,” and the intervenor, the Bank of Commerce and Trust Company, excepted and appealed to- the Supreme Court, only its right being involved in this appeal.</p> <p>The feed company sold a car of feed to J. H. Watters of Wilmington, N. C., and drew a draft with bill of lading attached for the purchase price.</p> <p>The feed company then indorsed the draft and bill of lading, and delivered the same to the intervenor, the Bank of Commerce and Trust Company, and the trust company forwarded the same to the Murchison National Bank at Wilmington for collection.</p> <p>The draft was paid, and the plaintiff attached the proceeds in the possession of the Murchison Bank as the property of the feed company.</p> <p>The material part of the testimony offered by the intervenor, the Bank of Commerce and Trust Company, was in substance as follows:</p> <p>E. L. Rice testified: “I live at Memphis, Tenn. Am vice president of the Bank of Commerce and Trust Company. The Bank of Commerce and Trust Company is a corporation engaged in the banking business and also title and guaranty business. Its main business is banking business. • It is located in Memphis, Tenn. It is a large bank as compared with other banks in the city of Memphis. I know of a certain draft that was drawn on Joseph H. Watters of Wilmington, N. C., by the International Sugar Feed No. 2 Company for the sum of $280. That draft was handled by the bank on 19 November, 1914. The draft was discounted and passed to the credit of the International Sugar Feed No. 2 Company, and was discounted at the rate of $2.50 a thousand. The date the 'item actually passed to the credit of the International Sugar Feed Company was 19 November, 1914. We purchased the draft and put it to the credit of the International Sugar Feed Company at rate of discount. There was no agreement that, passed between the Bank of Commerce and Trust Company and the International Sugar Feed Company with reference to charging back against the International Sugar Feed Company the proceeds of this draft, which was not paid. We had no conversation with them upon that subject. . We had no written agreement of anything of that kind in advance about it. I cannot answer the question as to whether anything was said, as the draft was handled by the teller, but the records show nothing except that it was discounted and put to their credit; that is all.</p> <p>“I do not remember the amount of this draft in question. I have a record of it,.and that shows $280, less 70 cents discount. That is the usual discount, because the draft is drawn with exchange. I think the draft was drawn at sight. I would not. say positively. That is what it would cost a person going into our bank to cash a draft drawn on Wilmington for that amount with the bill of lading attached. The records show that the bill of lading was attached to this draft, but I do not know what it covered. The bill of lading was sent with the draft to Wilmington and it was afterwards paid. It is not customary for us to charge drafts back when we handle them with bill of lading attached when the draft is dishonored and sent back. It is customary for us to get check for them. We will get a check for them. They have never refused to give us a cheek; but in the event they refused to give us a check we would charge it back to their account. When' a draft is dishonored and comes back either the*eustomer or the indorser for whom it is cashed covers the dishonored draft with a check. Our bank, so far as I know, had no agreement with the International Sugar Feed Company, No. 2, by which the bank should lose the proceeds of this draft if it was not paid. On the contrary, my assumption is that the agreement was that if the draft was not paid the International Sugar Feed No. 2 Company would cover it, and if they were not willing to cover it voluntarily, and it came to a question of who should lose tbe draft, we would arbitrarily charge it back to their account. I have an idea of what the average balance of the International Sugar Feed Company was for the last two years. It was a good balance. They usually.kept a good, large balance, and since 19 November, 1914, that balance has run largely in excess of $280; I think it has. This was not a collection draft; we didn’t handle it as a collection draft. It was handled as a cash item, and all drafts are handled, with the idea that if the draft is not paid the International Sugar Feed Company would, of course, indemnify us against loss. There was no agreement with Mr. Hall, representing the International Sugar Feed Company, about this specific draft, that this item would be discounted with the understanding that if it was not paid by the drawee that he would not permit us to lose anything on it. The draft was deposited in the Bank of Commerce and Trust Company, and the proceeds went to the credit of the Sugar Feed Company. We had no agreement about this specific draft whatever. It was put to their credit, and we sent it to the party on whom it was drawn. Of course, we expected to get our money from the party on whom it was drawn originally. If we could not get the money from him, we would naturally go back on Mr. Hall. We had a custom of discounting Mr. Hall’s drafts. That is, drafts of the International Sugar Feed Company, as they were presented to the teller. We handled them every day. The teller did not make any agreement with him. He took off the discount that it was customary to take off of drafts. The teller didn’t agree on it. The teller only had instructions to obey these rules, which are laid down by some officer of tho bank. He was acting under orders of the bank, and there was no rule made to the teller that if a draft was not paid that the customer should cover it. That is the custom. The general rule is that if the draft is dishonored by the party on whom it is drawn, then it is covered by the party who draws the draft or the indorser who cashes it. It is a fact that Mr. Hall is advised of this situation, and he understands that if we have to pay on the bond that he will protect us and indemnify us. The bank doesn’t lose anything, no matter which way the litigation goes. The amount of the draft discounted for the International Sugar Feed Company was passed to its credit and it was subject to their check. That is different from a draft taken for collection. When a draft is taken by the Bank of Commerce and Trust Company simply for collection, it is not passed to the credit of the party who delivers it to the bank until it is finally paid. We consider that a party who makes a draft is legally bound to pay that draft, and we also consider that he is not only morally and legally bound, but that he is financially .able to pay a draft if it is dishonored by the drawee. Our expectation to collect from the International Sugar Feed No. 2 Company in this case was not at all different from our expectation to collect from any person who indorses any paper which is discounted or purchased by the bank and indorsed for.</p> <p>“Since the foregoing; I have been authorized by Mr. Hall to answer the question relative to the balance to the credit of the International Sugar Feed No. 2 Company at the close of the business on 19 November, 1914, and at the close of business on 15 March, 1916, and upon examination of the books I find the balances to be as follows: Balance 19 November, 1914, $17,128.88. Balance 15 March, 1916, $16,926.44.”</p> <p>"Will A. Hall testified: “I am connected with the International Sugar Feed No. 2 Company as resident manager at Memphis, Tenn. This is a suit in regard to a certain draft drawn on Joseph H. Watters of Wilmington by the International Sugar Feed No. 2 Company. The bill of lading covering a car-load of feed was attached to the draft. The draft, after it was drawn with bill of lading attached, was sold and discounted at the rate of $2.50 per $1,000 on 19 November, 1914, the number of the draft being 2944. The International Sugar Feed No. 2 Company was paid for the draft by being credited with the amount thereof in cash on said date, 19 November, 1914.</p> <p>“We had no agreement with the Bank of Commerce and Trust Company that if this draft was not paid it should be charged back to us. We cheeked against this account that was credited with the draft. We did not at any time agree with the Bank of Commerce and Trust Company, or any one representing them, that if the draft was not paid it might be charged back to our account. We did not assume any liability other than that which the law puts on us as a drawer of the draft. No person at Memphis, Tennessee, other than myself, has any authority to make an agreement of any kind with a bank with reference to a matter of this kind on behalf of the International Sugar Feed No. 2 Company.</p> <p>“The Bank of Commerce and Trust Company still owns the draft or its proceeds. I mean to say that the Bank of Commerce and Trust Company still owns the proceeds of this draft, and we have drawn against the proceeds of it as cash account that was credited when the draft was sold. I do not know, if the Bank of Commerce and Trust Company still has the proceeds of the draft, to what account it is placed. I know that the Bank of Commerce and Trust Company has not charged our account with this $280. I have no knowledge to the effect that the Bank of Commerce and Trust Company, in case it is not allowed to retain the proceeds of this draft, is going to look to us for this $280. We, the International Sugar Feed No. 2 Company, did- not assume any liability whatever. I mean to say that if we assumed any liability other than being the makers of the draft — whieh we did not — as to the legal phase of that, I am not advised. There would be no interest, if the Bank of Commerce and Trust Company fails to collect the proceeds and looked to us for the payment of this $280, since they have already been remitted the proceeds of the draft. There is no agreement between the International Sugar Feed No. 2 Company and the Bank of Commerce and Trust Company that in case the Bank of Commerce and Trust Company has to respond on its bond in Wilmington, that we expect to pay back the money to the Bank of Commerce and Trust Company. There is no agreement of that nature. Inasmuch as there is no agreement or any contract between the International Sugar Feed No. 2 Company and the Bank of Commerce and Trust Company, that is, as far as I can answer, and I do not know that they expect us to reimburse the Bank of Commerce and Trust Company to the extent of this draft in the case the Bank of Commerce and Trust Company has to pay it. As to whether or not we expect to reimburse them, I could not testify as to problematical matters, or as to logical proceedings that might be involved in this case. In reply as to whether we, the International Sugar Feed No. 2 Company, ever expected to pay the Bank of Commerce and Trust Company $280, the proceeds of this draft, in case it has to pay that sum on its forthcoming bond in Wilmington, I will be obliged to say that inasmuch as there is no contract or agreement to that effect, and proceedings after this time would be problematical, and that I or any one else in my position could not answer that question yes or no. I only know what we intend to do so far as any contract or agreements with the Bank of Commerce and Trust Company are concerned, and we have no contract in regard to this matter. We have no intention in reference thereto, because we believe this is bank property, and the only interest we have is that of drawer of the draft, and I cannot answer as to future proceedings. In reply to the question asked me, if it is ever our intention to pay the proceeds of this draft to the Bank of Commerce and Trust Company in case it has to pay on its forthcoming bond at Wilmington, I will say that it is not our intention unless we are made to pay it. I have never told Mr. Rice that, as the matter has never been discussed with us. If Mr. Rice is under a different impression, he did not get that impression from me. This matter has absolutely never been' discussed between the International Sugar Feed No. 2 Company and the Bank of Commerce and Trust Company, as to any refunding on this item of any character at any time. As to whether we ever had one of our drafts turned down which we cashed through the Bank of Commerce and Trust Company, I will say that under some conditions we possibly might, but I do not recall any specific case. Over a long term of years we have never had a ease similar to this. _ We might have had, during that long term of years, drafts which have been dishonored, and as to whether we ever permitted the Bank of Commerce and Trust Company to lose anything on any of these drafts, I don’t recall those transactions. I don’t think the Bank of Commerce and Trust Company ever lost anything on our drafts. I don’t recall under what conditions any others might have been returned. I don’t recall specific instances, and I would not like to give testimony unless I could recite specific instances and circumstances surrounding them, as to whether we ever permitted the bank to lose money on drafts drawn by us. I don’t understand that the effect of this transaction was that the bank was lending us the money on the draft. I understand it is a discount, the draft becoming the property of the Bank of Commerce and Trust Company, our title in the draft having passed to the bank, as the bank bought it at a price. We don’t consider it a loan.”</p> <p>After this attachment suit was instituted and before the draft was paid at Wilmington, and the proceeds remitted to the Bank of Commerce and Trust Company, the Bank of Commerce and Trust Company did not charge this draft back to the International Sugar Feed No. 2 Company, and the International Sugar Feed No. 2 Company did not pay the Bank pf Commerce and Trust Company anything on this draft between the time it was attached and the time the proceeds were remitted at Wilmington to the Bank of Commerce and Trust Company.</p> <p>The approximate amount of the average balance of the International Sugar Feed No. 2 Company with the Bank of Commerce and Trust Company is about $5,000 to $10,000.</p>

Civil aotioN tried at April Term, 1916, of New Hahover, before Peebles, J. At the conclusion of all tbe evidence tbe court rendered judgment in favor of tbe defendant The Savannah Trust Company. Tbe plaintiff appealed.

<p>Civil actioN to recover damages for alleged negligent killing of plaintiff’s horse, tried before Devin, and a jury, at May Term, 1916, of ALAMANCE.</p> <p>The cause was before this Court at Fall Term, 1914, on appeal from a judgment of nonsuit (167 N. C., 284), and this judgment having been reversed and decision certified down, was tried at said May term on the following issues:</p> <p>1. Was plaintiff’s horse injured by the negligence of defendant, as alleged in the complaint?</p> <p>2. What damage, if any, is plaintiff entitled to recover?</p> <p>There was verdict for plaintiff. Judgment on the verdict. Defend' ant excepted and appealed, assigning for error chiefly that his Honor declined to submit an issue as to contributory negligence.</p>

Civil. aotioN, with ancillary proceeding of claim and delivery, to recover a horse, tried before Devin, J., April Term, 1916, of Durham, upon these issues: 1. Is the plaintiff tbe owner .and entitled to tbe possession of the horse described in tbe claim and delivery proceedings in this action? Answer: “Yes.” 2. What amount, if any, is the plaintiff entitled to recover by reason of the wrongful detention of the horse? Answer; “None.” 3.

Crvxx, ACTION tried before Daniels, J., at tbe September Term, 1916, of At,am:ance. This is an action to remove a cloud from title> the plaintiffs alleging that they are owners in fee of the lands described in the complaint, under the will of D. H. Albright, and that the defendants are setting up an adverse claim thereto.

<p>1. Mechanics’ Liens — Materials—Assignment—Attachment.</p> <p>Where a second subcontractor files its itemized statement of goods furnished' for and used in the building, with the owner thereof, in the manner provided by law, it is entitled to a lien on the funds then due by the owner to his contractor, and by-the latter to his subcontractor; and where the first subcontractor has assigned the amount due him by the contractor, and yet another has tafeen out proceedings in attachment against him on this fund, but in neither case for material or labor, etc., for which the statutes create a lien upon the building, the filing of the claim by the second subcontractor relates bacfe to the furnishing of the material, without the necessity of its having filed its statement with the clerk; and upon bringing action of foreclosure against the owner and the contractor, to which the others are made parties, within the statutory time, this lien has priority both of the assignments and the levy of attachment, though subsequent in time and without notice to them of the lien for material. Revisal, secs. 2020, 2022, 2023.</p> <p>2. Same — Priorities.</p> <p>Where a subcontractor has assigned the funds due him by his contractor to A., and B., his creditor, has sued out an attachment thereon, but in neither case for materials, etc., furnished for the building; and C., a material man, has previously furnished materials used in the building, and has duly filed his statutory statement with the owner, which entitles him to a lien: Held,, the assignment to A. was of a chose in action, which would put him in the shoes of his assignor, against whom the lien for material, perfected under the statute by C., is superior, according to its terms; and as notice by an assignee to a debtor at any time before judgment is sufficient, the lien of the attachment in this ease is secondary to the rights of A., the assignee of the subcontractor.</p> <p>3. Mechanics’ Liens — Materials—Filing' Claims — Subsequent Funds.</p> <p>Where the owner of the building has paid his contractor to the time of filing the statutory claim for material furnished, the moneys thereafter becoming due the contractor, under the same contract, are subject to the lien.</p>

Civil a.ctioN beard on return to preliminary restraining order before Webb, J., bolding tbe courts of Eleventh Judicial District, on 16 March, 1916, at chambers, from Ashe. The order was to restrain the defendants from laying out a public road pursuant to chapter 717, Public-Local Laws 1915. There was judgment dissolving restraining order and appointing a jury to assess damages, pursuant to general road law, Ashe County, and plaintiff excepted and appealed.

This was an action to restrain the defendants from laying out a public road in Ashe County, pursuant to chapter 400, Public-Local Laws 1915, also heard before Webb, J., at Spring Term, 1916, of Asiie. There was a judgment dissolving the restraining order, and plaintiff excepted and appealed.

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

Oivtt, ACTION tried before StarbucJi, J., and a jury, in the county count and by Long, J., on appeal, in the Superior Court at September Term, 1916, of Foesyth. The plaintiff sued for the recovery of damages on account of personal injuries received by him while assisting one James Hunter in lifting the heavy lid of a dye-machine, under orders from the superintendent of the defendant’s mill, he being, at the time, in the employ of defendant.

<p>Appeal by propounder from Webb, J., at May Term, 1916, of For-SYTH.</p> <p>Devisavit vel non begun before the clerk and transferred to the Superior Court for trial on the issue raised by caveat.</p> <p>The court instructed the jury, “After a careful examination of the paper the court is of the opinion that it is not a will,” and the jury so found. The propounder excepted and appealed.</p>

Civil actioN tried before Long, J., and a jury, at May Term, 1916, of FoRsyth.

Civil actioN tried at May Term, 1915, of Pitt, before Whedbee, J. At tbe conclusion of tbe evidence tbe court sustained tbe motion to\ nonsuit. Tbe plaintiff excepted and appealed.

<p>Civil aotioN tried before Devin, J., and a jury, at May Term, 1916, of ORANGE.</p> <p>This action was to enforce collection of the purchase price of a tract of land which plaintiff, on 18 January, 1912, had contracted to sell and convey to defendant at the price of $3,000, payment to he made of accrued interest on the entire debt and $300 on the principal annually on tbe 15tb day of December for tear years till paid. Tbe action was instituted to September Term, 1915, and there were allegations tbat defendant, at tbe time of action commenced, bad made only one payment of $150, and tbat defendant was utterly insolvent and sale was 'necessary to enforce payment of plaintiff’s debt or any part thereof.</p> <p>Demand was also made for possession of tbe property, etc.</p> <p>Defendant answered, admitting tbe insolvency, etc., and tbat only $150 had been paid, and in paragraph 5 of tbe answer alleged tbat at tbe time of tbe contract entered into between tbe parties there was an additional stipulation tbat plaintiff could remain in possession for ten years and six months, provided be cleared up a reasonable number of acres of said land and built tenant bouses thereon; and, further, tbat if defendant made default in tbe annual payment, be was to have all tbe time be needed to make tbe same, provided it did not exceed tbe period of ten years and six months, etc., and tbat these stipulations were omitted from tbe contract by tbe mutual mistake of tbe parties.</p> <p>On issues submitted, tbe jury rendered verdict as follows:</p> <p>1. Were tbe matters set forth in paragraph 5 of tbe answer omitted by mutual mistake from tbe bond for title, as alleged? Answer: “No.”</p> <p>2. Did plaintiff agree to extend tbe time for payment on tbe land if improvements were put thereon by defendant ? Answer: “No.”</p> <p>3. What was tbe value of tbe improvements put upon tbe land by defendant? Answer: “$500.”</p> <p>4. Did tbe defendant fail to make tbe payments called for in tbe contract and bond,, as alleged in tbe complaint? Answer: “Yes.”</p> <p>5. In what amount is defendant indebted to plaintiff on said contract and bond? Answer: “$3,000, with interest, subject to a credit of $150.”</p> <p>There was judgment, foreclosure and sale for tbe entire debt, and defendant excepted and appealed.</p>

<p>Appeal by defendant from Daniels, at July Term, 1916, of Ghaw-VILLE.</p>

Crvn, action- tried before Webb, J., at March Term, 1916, of Foe-syth. This is an action to recover damages, caused, as the plaintiff alleges, by the negligence of the defendant. The defendant denies negligence, and pleads a release as a defense.

This is a motion to set aside a judgment, heard by Btarbuclc, J., in the County Court of Forsyth County. From an order setting aside the judgment, plaintiff appealed to the Superior Court. At September Term, 1936, of said court, Long, J., reversed the order, and defendants appealed to Supreme Court. Tbe following are the facts found by Judge Starbuck: 1.

Civil actioN tried at May Term, 1916, o£ Fobsyth, before Webb, J., upon these issues: 1. Did the defendants or either of them, by false and fraudulent representations, procure the plaintiff J. R. Miller to execute to them the deed to the two lots in the city of 'Winston-Salem, described in the first paragraph of tbe complaint, as alleged in tbe complaint? Answer: “Yes.” 2.

<p>Civil ACTION tried before Long, J., at September Term, 1916, of Foksyth.</p> <p>Civil action tried in tbe county court of Eorsytb County before his Honor, H. R. Starbuck, judge, and a jury, at February Term, 1916, of said court.</p> <p>The action was to recover on an endowment policy in the sum of $300 issued by defendant order in case of Frank Lyons, a member who died on 6 March, 1915.</p> <p>Plaintiff, his widow, having made demand and payment being refused, instituted .present action, proved the death, demand for payment and refusal on part of defendant. Liability was denied on the ground, chiefly, that the decedent was not a member in good standing at the time of his death, as required by the terms of the policy.</p> <p>On issue of indebtedness, it was shown that Frank Lyons died on Saturday, 6 March, as stated, and was buried, a representative committee of the Order, appointed for the purpose, taking part in the funeral ceremonies. It was further shown that decedent had complied with all rules of membership dues to 1 January, 1915.</p> <p>There was evidence on the part of the defendant tending to show that, after the first of January to the time of hisi death in March, decedent had not paid his monthly dues, and, further, that on 5 January, 1915, the local lodge had made an order suspending him from membership on that account. The facts showed that Frank Lyons was not present when this order of suspension was entered, and no evidence was offered tending to show that he had received any notice of the purpose to suspend nor of the action of the lodge in reference thereto, nor does it appear that Frank Lyons received any notice of being in arrears.</p> <p>The policy contained, among other things, the stipulation that it was payable on condition “that the brother knight shall be a member in good standing in his subordinate lodge at the time of his death and that the records of the Grand Lodge and subordinate lodge shall sustain the same.” As relevant to this question, the constitution of the subordinate lodge contained provision, Article 10: “In the event of the death of a member, who at the time of his death was in arrears for his fines, dues, and assessments, the funeral benefits shall not be paid: Provided, this section shall not prohibit appropriation for the decent interment of such member if his own property or means are insufficient,” etc. And Article 10, section 6: “A member who is in arrears for. six months dues or their equivalent, and has been notified to pay the same, shall be suspended by the chancellor commander in open lodore, and a record of such suspension shall be entered on the minutes of the lodge, and the keeper of records and seal is hereby required to notify the proper officer.”</p> <p>There was evidence on part of plaintiff tending to show that decedent had attended lodge meetings in January and February and had made payment on his dues in these months.</p> <p>The court charged the jury, in effect, that if they believed the-evidence, plaintiff was entitled to recover. Yerdict for plaintiff, and judgment.</p> <p>Defendant, having duly excepted, appealed to Superior Court of Forsyth County, and his Honor, Judge Long, being of opinion that record and case on appeal disclosed no error, affirmed the judgment of the county court, whereupon defendant again excepted and appealed.</p>

Civil ACTION tried before Cline, J., at December Term, 1915, of Caswell. This is an action on a note, tried in tlie! Superior Court, on appeal from a justice of tbe peace, on tbe following agreed facts, tbe plea of tbe defendant being payment: 1. That tbe plaintiff is a corporation located and doing business in tbe State of Kentucky. 2. That the defendant is a citizen and resident of tbe county of Caswell, State of North Carolina. 3.

before Lana, J. In apt time plaintiffs moved to dismiss the appeal because defendant failed to give and serve proper.notice of appeal, and because the purported appeal is not properly docketed, no proper and -sufficient transcript of appeal having been certified by the justice of the peace. The court overruled plaintiffs’ motion and plaintiffs excepted. There was verdict and judgment for defendant, and plaintiffs appealed.

Civil actioN to recover damages for personal injuries caused by defendant’s negligence, heard by Cline, J., at March Term, 1916, of Guit.foei). Plaintiff was allowed to sue in forma pauperis upon proper application, and afterwards, upon it appearing that he owned real estate valued at from $350 to '$600, it was ordered that he give security, make deposit, or execute a mortgage, with his wife, on the property to secure the costs.

MotioN made before limiting, 14 January, 1916, to continue a restraining order to tbe hearing; from Alexander. This is an action brought by J. E. Moose and others, residents and taxpayers of Alexander County, against the board of commissioners of said county, to perpetually restrain said board. 1. From issuing and selling $150,000 of road bonds to Sidney Spitzer & Co., pursuant to the terms of a certain contract. 2.

<p>Civil actioN beard on motion for final judgment before Bond,, J., at March Term, 1916, of PasqtjotaNic</p> <p>Tbe action was to procure a sale of certain real estate conveyed in 1875 by R. C. Jenkins, now deceased, in trust for bis wife, Myra T., one of tbe plaintiffs, for life, witb remainders over, etc. Tbe land having been sold under decree in the cause and tbe sum of $8,000 realized and held for distribution, on this, a motion for final judgment, plaintiffs or some of them contended that, as shown by decree, tbe proper disposition of tbe fund in question is controlled by tbe term's of tbe deed of R. C. Jenkins, the former owner, and that under said deed and subject to tbe life estate of said Myra T., tbe life tenant, tbe remainder in tbe fund is owned by tbe right heirs of R. C. Jenkins, these heirs to be ascertained as of the date of bis death, and defendants contending that by correct construction of said deed tbe ascertainment of these heirs is postponed till tbe death of tbe life tenant. On tbe bearing, bis Honor being of opinion witb tbe defendants, judgment was so entered, and tbe plaintiffs, some of tbe present heirs at law, excepted and appealed.</p>

<p>Civil actioN tried before Bond, J., at July Term, 1916, of Wake.</p> <p>Tbe suit was brought to recover certain license taxes which had been paid by the plaintiff, under protest, to the defendant for the privilege of carrying on its business in this State, and was heard upon demurrer to the complaint, which, in substance, is as follows:</p> <p>The plaintiff, complaining, alleges:</p> <p>1. That it is a corporation duly created, organized, and existing under and by virtue of the laws of the State of Pennsylvania,- having its principal office and place of business in the city of Pittsburg, where it is conducting, among other things, a life insurance business.</p> <p>2. That the defendant, James R. Young, is Insurance Commissioner for the State of North Carolina.</p> <p>3. That in the year 1906 the plaintiff took over and assumed a large number of policies of life insurance which had been issued from time to time to residents of the State of North Carolina by the Security Trust and Life Insurance Company, a corporation organized under the laws of the State of Pennsylvania and having its home office in Philadelphia, Pennsylvania; that in the year 1908 the plaintiff took over and assumed a large number of policies of life insurance which had been issued fom time to time to the residents of the State of North Carolina by the Washington Life Insurance Company, a corporation organized under the.laws of the State of New York and having its home office in New York City; that at the time of' the said reinsurances this company was not licensed to transact business in the State of North Carolina and was not transacting business therein, and contracts of reinsurance between the said two companies and this plaintiff were executed and delivered beyond the boundaries of the State of North Carolina, one contract being executed and delivered in the State of New York and the other contract being executed and delivered in the State of Pennsylvania; that in the year 1910 the plaintiff applied to the Insurance Commissioner of the State of North Carolina for a license to transact business in the said State, and received a license so to do 1 April, 1910, and thereafter it has continued to be licensed and has transacted business in the said State of North Carolina, and from time to time it lias issued policies of life insurance to residents of tbe said State; that by the terms of all of tbe said policies so issued by tbe plaintiff and issued by tbe companies reinsured tbe premiums are payable at tbe borne office of tbe company issuing tbe same.</p> <p>4. That, as it is advised and believes, and so alleges, it was, under tbe laws of tbe State of North Carolina, liable for a license tax on tbe 31st day of December and on tbe 30tb day of June of eacb year of 2% per cent only on tbe premiums collected by it in said State from its policyholders, including policyholders whose policies bad been rein-sured as heretofore stated, residing in said State of North Carolina, and that it was not liable for said license tax upon tbe premiums collected by mail at tbe home office from its policyholders.</p> <p>5. That-tbe said Insurance Commissioner required it to pay to him a license tax upon all premiums collected by it from its policyholders residing in tbe State of North Carolina, whether collected within tbe State of North Carolina or collected by it at its home office by mail, upon tbe penalty of tbe revocation by him of its license to do business in North Carolina if it should fail to pay tbe same.</p> <p>6; That in tbe years 1912, 1913, and 1914 plaintiff paid to tbe defendant, under its protest that tbe execution of tbe same as part of its license tax was illegal, tbe aggregate sum of $2,561.82, having theretofore paid to him tbe full amount of tbe said license tax admitted to be due, and that tbe payment of -that part of tbe tax claimed to be illegal was paid by plaintiff under protest to prevent a revocation of its license, which was threatened by tbe defendant.</p> <p>7. That, as plaintiff is advised and. believes, and so- alleges, tbe demand by tbe State from tbe plaintiff of a tax measured by premiums received in Pennsylvania on policies issued by other companies to residents of North Carolina and assumed by tbe plaintiff before it was licensed to do business in this State is a violation of tbe fourteenth amendment to the Constitution of tbe United States, and that likewise a tax measured by tbe premiums received in Pennsylvania on any policy issued by tbe plaintiff to residents of North Carolina after it was licensed to do business in this State is a violation of tbe said fourteenth amendment.</p> <p>8. That, as tbe plaintiff is advised and believes, and so alleges, it is entitled to recover from tbe said Insurance Commissioner tbe aggregate sum of $2,561.52.</p> <p>Wherefore, tbe plaintiff demands judgment that .it recover against the defendant tbe sum of $2,561.52, and tbe costs and disbursements of this action. JohN W. HdxsdalK,</p> <p> Plaintiffs Attorney. </p> <p>In order to get a precise understanding o£ tbe question involved in this appeal, it will be necessary to set forth here those parts of our statute law relating to the subject. The provisions of the Eevisal 1905 are as follows:</p> <p>Section 47.15 (2) : “All of said companies shall pay a tax of 2% per centum upon the amount of their gross receipts in this State.”</p> <p>Section 4719: “Every general agent shall, within the first thirty days of January and July of each year, make a full and correct statement, under oath of himself and of the president, secretary, or'some officer at the home or head office of the company in this country, of the amount of the gross receipts derived from the insurance business, under this chapter, obtained from residents of this State, or on property located therein, during the preceding six months, and shall within the first fifteen days of February and August of each and every year pay to the Insurance Commissioner the tax imposed by this chapter upon such gross receipts.”</p> <p>Section 4720 provides: “That every policyholder shall, on demand of the Commissioner, furnish information of all insurance held by him, to enable the Insurance Commissioner the better to enforce the payment of the taxes imposed by this chapter.”</p> <p>Section 4806: “All contracts of insurance on property, lives, or interests in this State shall be deemed to be made therein; and all contracts of insurance the application for which is taken within this State shall be deemed to have been made within this State, and shall be subject to the laws thereof.”</p> <p>The above extracts are taken from the chapter in the Eevisal on Insurance.</p> <p>It is provided by the Public Laws of 1911, ch. 46, sec. 26, and by Public Laws of 1913, ch. 201, sec. 26 (known as the Eevenue Act), as follows: “Taxes in this schedule shall be imposed as license taxes for the privilege of carrying on the business or doing the act named, and nothing in this act contained shall be construed* to relieve any person or corporation from the payment of tax as required in the preceding schedule [property tax schedule]. The license issued under this schedule shall be for twelve months and shall expire on the thirty-first day of May of each year. Such license thus obtained shall be a personal privilege, and shall not be transferable nor any abatement in the tax allowed; and unless otherwise provided in the section levying the tax, the tax levied for the use and benefit of the State shall be collected in the county in which the business is conducted.”</p> <p>Each of said acts has this provision in it: “All of said (insurance) comp'anies shall pay a tax of 2% per centum upon the amount of their gross receipts in tbis State,” which clause is taken from section 67 of chapter 46, and chapter 201 (Schedule B) above mentioned. The same provision also appears in Revisal, sec. 5175, it being a part of Bevisal, chapter 110, entitled “Revenue Act,” and of paragraph .V,' entitled “Schedule B, Licenses.”</p> <p>Sections 4719 and 4720 require general agents of insurance companies within the first thirty days of January and July of each year to make “a full and correct statement, under oath, of the amount of the gross receipts derived from their business, obtained under said chapter 110, from residents of this State,” and to pay to the Insurance Commissioner within the first fifteen days of February and August the tax upon such gross receipts.</p> <p>At the hearing of the ease the court sustained the demurrer, and the plaintiff appealed.</p>

Civil actioN tried before Connor, J., at March Term, 1916, of Wake. This is an action to recover certain property alleged to be wrongfully held by the defendant, and for damages for its deterioration and detention. On 11 February, 1911, the plaintiff sold, under a conditional sale contract, to the Ellington Building Supply Company the property in question. The Ellington Building Supply Company was composed of E. E. Ellington, W.. E. Ellington, and D. D. Ellington.

Civil aotioN tried before Webb, J., and a jury, at May Term, 1916, of Eoesyth. Tbe action was to recover for injuries to a racing mare, shipped by express over a route of defendant company from 'Winchester, Ya., to Hanover, Pa., in September, 1913.

<p>Civil actioN tried in Foesyth County Court, Starbuck, J., presiding, upon these issues:</p> <p>1. Was tbe plaintiff injured by tbe negligence of tbe defendant F. P. Lewellyn, as alleged in tbe complaint? Answer: “Yes.”</p> <p>2. Was tbe defendant F. P. Lewellyn an independent contractor, as alleged in tbe answer of tbe defendant city of Winston-Salem? Answer: “Yes.”</p> <p>3. Was tbe work contracted for inherently dangerous? Answer: “Yes.”</p> <p>4. Is tbe defendant tbe city of Winston-Salem liable to tbe plaintiff for tbe negligence of the defendant Lewellyn? Answer: “Yes.”</p> <p>5: If so, what damage, if any, is tbe plaintiff entitled to recover? Answer: “$250.”</p> <p>From tbe judgment rendered, both defendants appealed to tbe Superior Court of said county. Tbe appeal was beard by Long, J., at September Term, 1916, who granted a new trial as to tbe defendant Lewellyn and affirmed tbe judgment as to tbe city of Winston-Salem. From this judgment tbe plaintiff and tbe city of Winston-Salem appealed to tbe Supreme Court.</p>

Civil actioN tried before Webb, J., at June Term, 1916, of Rock-INGHAM. This is an action to restrain a sale under a certain trust deed executed by the plaintiffs to the defendants, and for an accounting.

Civil actioN tried before Shaw, J., at Fall Term, 1915, of Stokes, upon these issues: 1. Where is the true dividing line between lots Nos. 3 and 4, referred to in the pleadings ? Answer: “From black A to black B.” 2. Is the plaintiff the owner and entitled to' the possession of the wood and timber described in the complaint? Answer: “Yes.” 3. What was the value of the wood and timber removed by the defendant? Answer: “$25.” 4.

Civil, actioN tried before Cline, J., at March Term, 1916, of Guil-ROBD. This is an action to recover of the defendant damages for injury to certain machinery and supplies shipped by plaintiff from Macon, Georgia, to Kemersville, North Carolina. The shipment consisted of knitting-mill machinery and supplies delivered to the Central of Georgia Eailway Company on or about 30 September, 1912, and consigned to J. A. Holloman at Kernersville, North Carolina.

<p>1. Carriers of Passengers — Mileage Exchange — Tickets.</p> <p>It is the duty of a conductor on a passenger train to accept the mileage of a person traveling thereon when the railroad company has not afforded him time to get it exchanged for a ticket at its station.</p> <p>2. Same — Ejection from Train — Statutes—Usual Stops — Flag Stations.</p> <p>A place along a railroad company’s track is not a usual ^topping place within the meaning of Revisal, sec. 2629, forbidding the company to put off passengers except “at usual stopping place or dwelling,” when it is merely a flag station, with only a side-track, without shelter, and the nearest dwelling three-quarters of a mile away; and where one traveling on the train has been put off at such place at 9 o’clock in the night for failure to exchange his mileage for a ticket, and was informed by the conductor that it was “a rather poor place to spend the night,” it does not preclude his recovery, for the company’s violation of the statute, that he again boarded the train and complied with the conductor’s demand in paying the additional charge required of those who have no ticket.</p> <p>3. Same — Excessive Force — Punitive Damages — Trials — Evidence — Mental Anguish.</p> <p>Where a traveler is ejected from a passenger train in violation of his rights, at night, at a place without shelter, and the evidence tends to show that the conductor, with the assistance of the flagman, used violence in taking him from the seat in the presence of the passengers; that the conductor’s actions evinced anger; that the traveler again boarded the train after being ejected, whereupon the conductor told him that he would kick him off if he did not pay the cash fare, in consequence of which the traveler paid the price and remained on the train: Held,, evidence of unnecessary force on the part of the conductor, and sufficient to sustain a verdict awarding exemplary damages, and damages for humiliation and injury to feelings.</p> <p>4. Carriers of Passengers — Ejection from Train — Trials—Questions for Jury.</p> <p>The question whether the conductor of a train used unnecessary force in ejecting a passenger from the train is one for the jury upon conflicting evidence.</p> <p>5. Carriers of Passengers — Wrongful Ejection — Casli Fare — Damages.</p> <p>Where a conductor refuses to pull the mileage of a passenger, demands the cash fare, and, upon refusal of the passenger to pay, wrongfully ejects him, it is no defense to the company to avoid the payment of actual or exemplary damages that, upon the payment of the small amount of the cash fare, the passenger could have avoided the entire injury.</p> <p>6. Appeal and Error — Assignments of Error — Rules of Court.</p> <p>This cause being tried under one issue, without exception taken, the assignment of error that other issues should have been submitted is not in compliance with the rules of Court regulating appeals.</p> <p>Brown, J., dissenting; Walker, J., concurring in the dissenting opinion.</p>

<p>1. Removal of Causes — Foreign Executors — Voluntary Parties.</p> <p>Foreign executors may not, of tbeir own motion, make themselves parties to an action brought against their testator, in his lifetime; and where this has been attempted, without order of court to that effect, they may not enter proceedings to remove the cause to the Federal court for diversity of citizenship.</p> <p>2. Same — Order of Court — Requisites.</p> <p>Foreign executors may not obtain an order of court to make them parties to an action which had been brought against their testator upon filing a certificate of their appointment, 'without the seal of any court ¡ thereon, unaccompanied by letters testamentary, or copy of will, or with-/ out other adequate proof of their appointment as such.</p> <p>8. Removal of Causes — Foreign Executors — Administration—Statutes—Requisites.</p> <p>An attachment levied against the property of a nonresident shows that? he had property in this State, and 'when he has died after action brought, it becomes necessary for bis executors or administrators to prove tbe will here and take out ancillary letters of administration with the will annexed and give the bond as required-by our statute, Revisal, sec. 28 (1), before they will be recognized by our courts, or permitted to file a petition and bond for removal of the cause to the Federal court for diversity of citizenship.</p>

Civil actioh tried before Webb, J., and a jury at August Term, 1916, of GttilfoRd. Plaintiff sued, under Revisal, sec. 1951, for $80, double tbe amount of usurious interest paid by him to defendant. He alleged and testified that he wanted to buy a Ford ear for $580, and, not having the money to pay for it, he applied to the defendant for a loan of the amount, and he agreed to lend him the money upon a mortgage of the automobile and a lot.

<p>1. Wills — Probate—Evidence.</p> <p>Evidence is sufficient for the probate of a paper-writing purporting to be a will which tends to show that the subscribing witnesses went to the house of the deceased with an attorney, the deceased said he wanted them to witness his will, which was lying on a table in the room, then signed it, saying it was his will, requested the witnesses to sign it, the signing by the deceased and the witnesses being in the presence of each other.</p> <p>2. Wills — Probate—Impeaching1 Evidence — Burden of Proof — Trials.'</p> <p>Where the formal execution of a paper-writing purporting to be a will has been proven, it is.prima facie the will of the deceased, devolving upon the caveators the production of impeaching evidence.</p> <p>8. Wills — Mental Capacity — Evidence—Witnesses—Opinions—Trials,</p> <p>In proceedings to caveat a will a witness may be asked of his own knowledge whether in his opinion the deceased possessed sufficient mental capacity to make the will at the time, know his property, his relatives, the claims they had upon him, and to whom he wanted to give his property.</p> <p>4. Same — Instructions—Intelligence.</p> <p>Where the court has properly charged upon mental capacity of the deceased to make a will, a further charge that it is not required that he should have had a high degree of intelligence is without error.</p> <p>5. Wills — Undue Influence — Wife.</p> <p>Undue influence sufficient to set aside a will must be more than that arising from affection and kindness, but must partake of the nature of fraud; and such will not be inferred from the fact alone that the deceased devised, his property to his wife, who was with him at the time when he executed the paper-writing, and attending him during his sickness, or the fact that hers was a strong and his a weak will.</p> <p>6. Wills — Caveat—Parties—Evidence—Presumptions.</p> <p>Where a paper-writing is sought to he set aside for undue influence of the wife of the deceased, a reguested instruction that the failure of the wife to testify was a strong circumstance tending to prove its invalidity, is properly refused, there being no parties to a devisavit vel non.</p> <p>7. Wills — Signature—Execution—Evidence—Bequest.</p> <p>Where there is evidence that a paper-writing has been signed by the deceased and duly attested by the witnesses, and that the deceased declared it to be his will, a reguested instruction that there was no evidence that the will was prepared at his request is properly refused.</p> <p>S. Wills — Caveat—Burden of Proof — Presumptions—Instructions.</p> <p>In proceedings to caveat a will, the burden is upon the caveator to show undue influence, if such is relied on to set aside the writing; and his prayer for instruction that if the person benefited procured the same or advised the terms of the instrument, it would raise a presumption of undue influence, and the jury should so find unless explained to their satisfaction, is properly refused.</p> <p>9. Wills — Mental Capacity — Evidence—Circumstance—Blank Space.</p> <p>A paper-writing purporting to be a will which appoints the deceased’s ,wife as executor and guardian of minor children, should there be any at the time of his death, and in another section leaves a blank space for the appointment of an executor and guardian in the event the wife predeceased him, cannot be construed as an anomaly of his appointing her as guardian for the children after her death, and a circumstance affecting the question of the deceased’s mental capacity.</p>

<p>1. Contracts — Mutual Agreement — Misrepresentations.</p> <p>The mutual consent of the parties is an essential element of every contract, and where one of the parties misrepresents or conceals a material and important fact from the other upon which the minds of both must necessarily agree, the contract thus made is unenforcible.</p> <p>2. Same — -Mortgages—Registration—Innocent Purchasers.</p> <p>Under our registration laws an unregistered mortgage is not good as against purchasers for value, etc., and is, in effect, in such instances, to be regarded as no mortgage; and where a vendor of an automobile takes a mortgage thereon which he does not have registered until after the purchaser has sold or exchanged it for another, and then demands the automobile under his mortgage, representing that it is valid, and an agreement is made on this representation that he should be delivered possession of the automobile upon paying for certain repairs made thereon; in his action to enforce this agreement, it is Held, that the minds of the contracting parti.es had not mutually agreed because of the plaintiff’s misrepresentation or suppression of the material fact that the mortgage had been registered, concerning which the defendant was ignorant at the time, and under the evidence of this case an issue of fact was raised for the determination of the jury.</p>

<p>1. Courts — Pleadings—Amendments.</p> <p>In an action alleging damages by reason of false representations and breach of guarantee in the contract of the sale of an engine, it is within the sound discretion of the trial judge to withdraw a juror and permit an amendment alleging fraud in the transaction, when ample time and opportunity has been given the defendant to answer and procure his evidence, and meet the allegation of fraud.</p> <p>2. Same — Subsequent Terms — Orders—Variance—Appeal and Error — Objections and Exceptions.</p> <p>When the plaintiff has been allowed by the court to amend his complaint, a judge holding a subsequent term of the court may strike out the amendment if contrary to the former order; but, if otherwise, he.may not pass upon the authority of the former judge to allow it, for this has to be done by exception at the time, and on appeal in the Supreme Court.</p> <p>Walker, J., did not sit.</p>

Civil actioN tried before Justice, J., and a jury, at May Term, 1916, of ElCHMOND. Tbe complaint set forth a cause of action to set aside a deed for land on tbe ground of fraud and undue influence. By amendment, a clause was added to correct tbe deed, on allegations tbat tbe same, absolute in terms, was intended by tbe parties as a mortgage and tbat tbe clause of redemption bad been omitted by mistake.

This is a motion in the above cause, heard by Peebles, J., May Term; 1916, of Bertie, to strike out answer filed by the defendant the Au-lander Eealty Company to the complaint.

Two civil- actions consolidated and tried as one at February Term, 1916, of Superior Court of KocKingham, before 'Webb, J., upon these issues: 1. Did J. Sanford Patterson represent in bis application for tbe insurance policies sued on tbat be bad bad no illnesses, diseases, injuries, or surgical operations since cbildbood, except fracture of tbe femur in 1885 ? Answer: “Yes.” 2. Was tbe said representation true? Answer: “No.” 3.

Civil actioN tried at May Term, 1916, of G-uilfoed, Cline, J., upon .these issues: 1. Did the defendant unlawfully and wrongfully assault the plaintiff, as alleged in the complaint? Answer: “Yes.” 2. What actual damages, if any, is the plaintiff entitled to recover of the defendant? Answer: “$1,000.” 3. What punitive damages, if any, is the plaintiff entitled to recover .of the defendant? Answer: “$1,500.” From the judgment rendered, defendant appealed.

Civil actioN tried before G'line, J., and a jury at May Term, 1916, of Guilford. The action is based upon a policy of insurance issued by the defendant to the plaintiff in May, 1915, and which was in force on and after the 24th of that month.

Civil agtioN tried at August Term, 1916, of G-uhjtoRd, before Ferguson, J., upon these issues: 1. Was the intestate of the plaintiff killed by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.” 2. Did the plaintiff’s intestate by her own negligence contribute to her injury and death, as álleged in the answer? Answer: “Yes.” 3.

Civil actioN pending in tbe Superior Court of Guileoed County, and beard by Webb, J., upon a motion to dissolve a restraining order, 22 April, 1916. Tbe court dissolved tbe restraining order and taxed tbe plaintiffs witb tbe cost, from wbicb order tbey appealed to tbe Supreme Court.

Civil actioN tried before Cline, J., at August Term, 1916, of UNION. The action was brought to recover damages for personal injuries, resulting in the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence in running its engine and cars.

<p>Appeal by propounder from Carter, J., at March Term, 1916,- of MeoeleNbueu, in proceedings to caveat a will.</p>

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

<p>1. Contracts Voidable — Infants.</p> <p>. A contract made with, an infant is voidable, and he may ratify or dis-affirm it at his election, upon his attaining his majority.</p> <p>2. Same — Benefits Retained — Credits—Purchase Price.</p> <p>When an infant has received money under a contract he has made, and it is consumed- or wasted during his minority, he may recover the same; but if it has been used for his benefit and invested in property which he has in hand, he cannot retain the property without allowing a just credit for the money received by him.</p> <p>3. Same — Majority—Acquiescence—Ratification.</p> <p>Where money has been paid to an infant under a contract made with him during his minority which he has invested in lands, his continuing to hold and enjoy the property after reaching his majority is evidence of his ratification of the contract, which has been held to be presumed after three years.</p> <p>4. Same — Feme Covert — Disability Removed — Statutes.</p> <p>A minor contracted for the sale of her lands and became a feme covert before reaching her majority, with agreement that upon payment of a certain sum the lands would go to the purchaser’s wife for life, and at her death to him. The purchaser paid the feme grantor and her husband the purchase price, with which they paid off a mortgage on her lands. Held, whether the mortgaged lands were those of the wife or not, she was advantaged or benefited by the payment, at least to the extent of her dower right, and she is held to have ratified her contract by her acquiescence twenty-three years after receiving the payment, nineteen years after attaining her majority, and more than three years after the statute had removed her disability as a married woman.</p> <p>5. Same — Acts of Disaffirmance — Actions—Estates Outstanding.</p> <p>An infant contracted with a husband to convey her lands for a certain consideration, a life estate to the wife with remainder to her husband, the purchaser, and received the agreed price therefor. Held, after coming of age the party could have evinced her disaffirmance of her contract hy the return of the purchase money or some other unequivocal act, though she may not be permitted to sue for the land during the continuance of the outstanding life estate; and the failure of the infant to take such action after coming of age may he evidence of the confirmation of the contract.</p>

, at August Term, 1916, of DavidsoN, in an action to recover damages for the wrongful conversion of one bay mare.

Civil actioN tried at May Term, 19Í6, of G-uilfoRD, before Gime, J.,' upon this issue: Is tbe Fauquier National Bank of Warrenton, Va., intervenor, tbe owner of tbe money attached in tbis proceeding? Answer; ‘‘Yes.” From tbe judgment rendered, plaintiffs appeal.

Civil action- tried before Cline, J., and a jury, at February Term, 1916, of Guilford. Tbe áction was to recover tbe penalty for taking and receiving usurious interest in transactions bad between male plaintiff and defendant. On denial of liability and issues submitted, tbe jury rendered tbe following verdict: 1.

Civil actioN tried before Adams, J., at October Term, 1916, of BuNCOMBE. Tbis is a controversy submitted without action upon an agreed statement of facts. “It is' agreed between F. H. Revis and wife, Awie Revis, tbe plaintiffs above named, and J. D. Murpby, the defendant above named, as follows: “1.

<p>Civil actioN beard on exceptions to report of referee, before Long, J., September Term, 1916, of Foustth.</p> <p>Tbe action was instituted by plaintiff on 10 December, 1913, against H. W. Masten, a former register of deeds of tbe coiinty, for two terms, from 1 December, 1908, to December, 1912, and bis codefendant, surety on bis bond, to recover for fees due tbe county of Forsytb to tbe amount of $6,000 or $7,000, wbicb plaintiff alleged said Masten bad collected or should have- collected by virtue and color of bis office, and wrongfully withheld from tbe county. Plaintiff alleged, further, a demand and refusal on tbe part of tbe county commissioners to institute and maintain suit, etc.</p> <p>On denial of liability, plea of settlement, release, etc., cause was referred by tbe court, and tbe referee, after a full bearing, reported that there were fees due tbe county of Forsytb to tbe amount of $6,867.17 from H. W. Masten, wbicb be bad received while in office, but ruled, among other things, as a conclusion of law, that tbe present action could not be maintained because chapter 80, Public Laws 1913, authorizing such suit to be instituted and maintained by a citizen and taxpayer of tbe county, was prospective in its operations and did not apply tu tbe facts of tbe present case.</p> <p>To this report tbe plaintiff excepted, in terms as follows: (2) “That' tbe referee erred in finding that this action cannot be maintained by tbe plaintiff as instituted, because chapter 80 of tbe Public Laws of 1913 is not retrospective in its effect and cannot apply to settlements made between tbe defendant and tbe board of county commissioners during tbe year of bis incumbency or amount paid to tbe defendant H. "W. Masten by tbe board of commissioners of Forsytb County for making out tbe tax receipts.”</p> <p>(3) “That tbe referee erred in failing to find as a conclusion of law that, independent of chapter 80 of tbe Public Laws of 1913, tbe plaintiff, as a citizen and taxpayer of Forsytb County, bad a common-law right to institute and prosecute this action in bis own name for tbe, benefit of Forsytb County.”</p> <p>The court entered judgment “overruling these exceptions” and in effect dismissing the action, and plaintiff excepted and appealed.</p>

Civil actioít to recover for alleged negligent injuries to plaintiff and to ber automobile, which, plaintiff was driving at the time, tried before Cline, J., and a jury, at March Term, 1916, of Guilford. There was denial of liability by defendant, and, on the trial, the jury rendered the following verdict: 1. Was the plaintiff and her automobile injured by the negligence of the defendant, as alleged in the complaint ? Answer: “Yes.” 2.

<p>Civil actioN tried before Cline, J., at March Term, 1916, of GuiL-EORD.</p>

Civil actioN, tried at April Term, 1916, of GastoN, before Garter, J. Tbe court made an order of reference to try all issues of law and fact involved in tbe case, adjudging “that tbe issue raised on tbe plea of tbe statute of limitations pleaded by defendants is determined by tbe court against tbe defendants; that tbe statute of limitations pleaded as aforesaid is not a bar to tbe action, does not apply, and tbe same is overruled.” Defendant excepted and appealed.

Civil actioN tried, before Carter, J., at April Term, 1916, of Meck-LBNBURG. Tbis is a proceeding to sell land for partition. The land described in the petition and other lands formerly belonged to J. D. Caldwell, who died intestate prior to 1881, leaving several children as his heirs at law, and among them E. 0. Caldwell and John M. Caldwell. In 1881 E. 0.

MotioN to set aside a judgment in tbe above entitled cause, beard before Garter, J., at May Term, 1916, of G-astoN. Tbe judgment was rendered by Lane, J., at January Term, 1915. Tbe motion was made by Walter Ballew, one of tbe defendants.

Civil action tried before Garter, J., at April Term, 1916, of GastoN. This is an action to recover damages for a conversion of cotton, tbe plaintiff claiming under warehouse receipts issued by tbe defendants.

<p>1. Railroads — Negligence—Trials—Evidence—Last Clear Chance — -Nonsuit.</p> <p>Where in an action against a railroad company for the negligent hill-ing of plaintiff’s intestate there was evidence tending to show that he was intoxicated and was killed by the train rapidly rolling down grade 40 miles an hour upon him in a populous town where the track was straight for a mile or more and frequently used by pedestrians for years, and at a point between two public crossings 250 yards apart; that the train approached without signals or warnings, and the intestate was not seen by the engineer until after he was struck; that the intestate had been drinking and his wounds indicated he was helpless upon the track; and also evidence to the contrary, that the intestate had suddenly stepped from a place of safety in front of the defendant’s fast moving train: Held, upon a motion to nonsuit it was ¡sufficient upon the question of proximate cause and to sustain a verdict against the defendant upon the third issue as to the last clear chance.</p> <p>2. Evidence — Nonsuit—Defendant’s Evidence.</p> <p>Upon a motion to nonsuit, the defendant’s evidence will not be considered.</p> <p>8. Railroads — Negligence—Pedestrians—Engineers—Presumptions.</p> <p>The doctrine that an engineer on the locomotive of a railway train is not required to stop or slacken the speed of the train upon seeing a pedestrian on the track in apparent possession of his faculties is approved. Hill v. R. R., 169 N. C., 740, cited and approved.</p>

<p>Appeal by plaintiff from Ferguson, J., at May Term, 1916, of RowaN.</p>

<p>Appeal by defendant from Garter, J., at August Term, 1916, of Cabarrus.</p>

Civil actioN to recover for' work and labor done and money advanced by plaintiff to defendant’s intestate while they lived together as man and wife, tried before Clime, J., and a jury, at March Term, 1916, of G-uilKobd.

Civil, actioN tried at April Term, 1916, of Oabakbus, before Long, J., upon these issues: 1. Did the defendant, the Southern Express Company, enter into a contract with the plaintiff on 24 January, 1915, to transport a car of horses and mules from East St. Louis, Illinois, to Albemarle, N. C., with the privilege of free transportation to the plaintiff as attendant and care-taker to look after said stock while in transit, as alleged in the complaint? Answer: “Yes.” 2.

<p>Appeal and Error — Reliearings—Rules of Court.</p> <p>In order to obtain a rehearing of a case in the Supreme Court it is necessary for the applicant to observe Rule 52 (amended 170 N. C., 1) and Rule 53 (164 N. C., 557) of the Court, and where he has failed to file the certificates of two disinterested members of the bar, indorsed by two members of the Court, the application will not be considered, except in certain instances where the Court may reconsider the case ex toeru motu.</p>

Civil actioN tried before Fergmon, J., at February Term, 1916, of RowaN. This is a civil action brought by the plaintiff against the defendants in the Superior Court of Rowan County to recover the possession of a 15-acre tract of land described in the complaint, subject to the alleged dower right of the defendant Mrs. L. J. Colly (née E. M. Kluttz). The land in controversy was owned by Edmund Milas Kluttz at the time of his death in 1865.

Civil aotioN tried at February Term, 1916, of RowaN, before Ferguson, J., upon these issues: 1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint? Answer: “Yes.” 2. Did tbe defendant contribute to his own injury by his own negligence, as alleged in the answer? Answer: “No.” 3. What damages, if any, is plaintiff entitled to recover? Answer: “$941.”

PetitioN for partition, instituted before tbe clerk of tbe Superior Court of MontgomeRy County, transferred upon tbe coming in of tbe answer to tbe Superior Court for trial in term-time, and tried at April Term, 1916, before Long, J. From tbe judgment rendered, plaintiffs appealed.

Civil actioN tried before Webb, J., at January Term, 1916, of CLEVELAND. This is an action to recover possession of a cow, commenced before a justice of the peace, who rendered judgment in favor of the plaintiff for the cow and for costs.

Civil actxoN beard, on motion to dismiss, by 8haw, J., at April Term, 1916, of Mitchell. Tbe following facts were found by tbe judge-: “Prior to 1 January, 1915, a suit between tbe same parties, plaintiffs and defendants, as those in tbis ease was instituted in tbe Superior Court of Yancey County, and was not brought in forma, pauperis, but tbe plaintiffs gave bond in that suit for tbe costs.

<p>Appeal by defendants from Shaw, J., at July Term, 1916, of McDowell.</p>

<p>1. Torts — Damages—Proximate Cause.</p> <p>A wrong-doer is responsible in damages resulting directly and proximately from tbe tort be bas committed; but if tbe cause is remote in efficiency and does not naturally result from tbe tort, it will not be considered as proximate.</p> <p>2. Same — Carriers of Passengers — Negligence—Intervening Cause — Trials— Courts — Questions of Law.</p> <p>Where a railroad company bas negligently carried a female passenger a mile or two beyond ber station, causing ber to walk that distance to her home with a suitcase, and tbe failure of ber husband to meet ber; and it appears that, at tbe time, tbe weather was clear and pleasant, but she was caught in a storm before she reached home, after having stopped a while on ber way at a friend’s: Held, tbe damages she may have sustained by reason of tbe storm were caused by an independent, intervening act, tbe act of God, and not those arising proximately from tbe carrier’s tort, and are properly excluded as an element of damages as a matter of law.</p> <p>3. Torts — Carriers—Damages—Contracts—Proximate Cause.</p> <p>Where a carrier is sued for damages in tort for a neglect of its duty in negligently carrying a passenger to a station beyond ber destination, tbe rule that tbe damages must have been within tbe contemplation of tbe parties, applying to breaches of contract, bas no application.</p>

<p>1. Deeds and Conveyances — Possession and Support — Conditions Subsequent ■ — Waiver.</p> <p>A conveyance of land with provision that the grantors should retain possession thereof during their natural lives and that the grantees should support them for that period of time operates by way of condition subsequent, and the right of forfeiture by reason of the condition to support having been broken, until entry or proper claim made, is not regarded as an estate in the grantors, but only a right of action to be enforced by proper procedure, and may be destroyed or waived by the persons entitled- to performance of the condition, either by formal deed of release or by the conduct of the grantors.</p> <p>2. Same — Equity—limitation of Actions.</p> <p>A husband and wife conveyed his lands to two of their sons upon condition subsequent that they retain possession and receive support from the grantees for life. -The husband died, and the wife joined one of the grantees in a conveyance of the lands in fee simple with warranty and covenants of title to another, from whom the defendant purchased. In a suit by the heirs at law of the husband to recover the lands upon allegation that grantees failed in the performance of the condition subsequent for the support of the wife, who is still living, it is Held,, equity will interfere to prevent an insistence on such claim; and the deed for full value, with covenants assuring title, will operate as a release .of the wife’s claim to support and relieve the estate of liability to forfeiture on that account. The statute of limitations does not apply to the facts of this case.</p>

<p>Civil actioN tried at September. Term, 1916, of MeokleNbueg, before Justice, J.</p> <p>From a judgment of nonsuit, plaintiff appealed.</p>

Oivii, actioN tried before ■Cline, J., at May Term, 1916, of Guilfobd. This action, was brought by the plaintiffs as the executors of Mrs. Louisa O. E. Barbee for the cancellation of a certain contract for the sale by the defendant of a tract of land containing 150 acres described in' the will of Mrs. Barbee and therein directed by her to be sold by her executors. The provisions of the will relating to the matter are as follows: “6.

<p>1. Pleadings — Interpretation—Demurrer.</p> <p>The allegations of a complaint tending to show a cause of action must be taken as true upon demurrer.</p> <p>2. Abatement — Death—Damages—Husband and Wife — Hospitals—Negligence —Mental Anguish.</p> <p>In an action for damages brought by the husband against one operating a hospital, for the alleged wrongful death of his wife, the complaint alleged that owing to the negligent defective construction of the room in which the wife was confined as a patient the rain beat in and water stood, at times, for hours on the floor, one inch deep, and in consequence his wife caught a severe cold, which developed into pneumonia, from which she died, and that the defendant had contracted with the plaintiff to furnish his wife a suitable room, care and medical attention. Held, sufficient to sustain a recovery by the husband for the loss of services of his wife during her last sickness to the time of her death, for the loss of the society of his wife occasioned by such sickness, and for the mental anguish he may have sustained on seeing her suffer and die, caused by the defendant’s wrong;- and that an action for damages of this character does not abate at the death of his wife.</p>

Civil actiow beard at July Term, 1916, of Avery, by Lane, J., upon report of referee and exceptions filed thereto by defendants. All of the exceptions were overruled and the report confirmed. _ Defendants excepted and, from judgment rendered, appealed, assigning error as follows: 1. That bis Honor committed error in overruling defendants’ exception No. 1. 2. That bis Honor committed error in overruling defendants’ exception No. 2. 3.

Civix, actioN tried before Shaw, J., at April Term, 1916, of Avery. This is an action instituted by tbe plaintiff against tbe defendant, tbe administratrix of J. Gr. Loven,. to recover tbe amount of certain notes executed by J. L. Banner, as principal and indorsed by J. GL Loven.

Civil actioN tried before Shaw, J., at September Term, 1916, of McDowell. This is an action to determine the rights of the parties in a certain fund, derived from a sale of land under a deed of trust in excess of tlie expenses of sale and the debt secured, heard on the following agreed statement of facts: 1. That the plaintiff is the widow of J. Washington Bailey. 2. That the defendants are the heirs at law and distributees of the said J. W. Bailey, deceased. 3.

<p>1. Arbitration and Award — Agreement—Award—Pleas in Bar.</p> <p>Averment and proof of an agreement submitting controverted matters to arbitration, when an award is pleaded in bar of an action, is necessary in order to give the award of the arbitrators the binding effect between the parties required.</p> <p>2. Same — Form of Award — Finality—Obscurity.</p> <p>Where an oral (or written, if so required by law) agreement of arbitration has been sufficiently entered into between the parties it must be followed by a consideration of the matters submitted and an award of the arbitrators; and unless the articles of submission prescribe certain formalities, the arbitrators may express their conclusion in any form they choose, and their decision therein expressed is conclusive if its terms can be understood, and it is so expressed that the intention of the arbitrators can be clearly gathered therefrom, and not couched in conditional, obscure, or dubious form.</p> <p>3. Same — Expert Opinion — Evidence—Trials.</p> <p>In an action upon notes given for the balance of the purchase price for furnishing and installing a heating plant in defendant’s residence, an award proposed to be introduced as a defense which purported upon its face to be only the advice of a supposed expert, who had given the arbitrators figures, based upon his estimate as to shortage of heat radiation and his opinion that certain pipes' would have to be changed, not stating how and to what extent, and having no finality as to cost, amount to be deducted, or final direction, is properly excluded, as too uncertain for enforcement.</p> <p>4. Appeal and Error — Trials—Instructions—Evidence—Prejudicial Error.</p> <p>Exceptions to the admission or refusal to admit evidence upon the trial of a cause, or to the judge’s charge, will not he sustained on appeal, and a reversal of the judgment ordered, when such do not affect the real merits of the controversy and no substantial prejudice will result to the appellant.</p> <p>5. Instructions — Narration of Evidence — Statutes—Substantial Compliance.</p> <p>As to whether the trial judge is compelled to read the stenographer’s notes of the evidence, on request of a party, quere; hut where a request therefor has not been made, it is a sufficient compliance with the statute, Revisal, sec. 535, for him to state the substance of the evidence in his charge.</p> <p>6. Contracts — Compliance—Yerdicts—Quantum Meruit — Appeal and Error.</p> <p>In this action to recover upon a contract for furnishing and installing a heater in defendant’s residence, the jury having found by the amount of their verdict as fixed by the contract price that plaintiff had performed his part thereof, it is Belcl, that a recovery upon a quantum meruit, while evidently considered, was excluded by the verdict,, .and Steamboat Go.' v. Transportation Go., 166 N. C., 582, and other like cases, were not applicable on appeal.</p> <p>7. Instructions — Misrecitals—Appeal and Error — Objections and Exceptions.</p> <p>Misrecitals of the evidence or contentions of the parties by the trial judge should be called to the attention of the court at the proper time; and when this has not been done, exceptions thereto will not be considered on appeal.</p>

Civil actioN tried 'at March Terra, 1916, of Duri-iaM, before Devin,, J., and a jury. On motion made in apt time there was judgment of nonsuit as to the railroad company, and the cause being submitted to the jury as to liability of the traction company, the following verdict was rendered: 1. Was plaintiff’s intestate injured and killed by the negligence of the defendant Durham Traction Company, as alleged in the complaint? Answer: “Yes.” ■ 2.

Appeal at February Term, 1916, of Gutlfobd, from Cline, J., upon these issues: 1. Was the death of the plaintiff’s intestate caused by the negligence of the defendants, as alleged in the complaint? Answer: “Yes; both of them.” 2. What damage, if any, is plaintiff entitled to recover of defendant? Answer: “$10,000.” From the judgment rendered, defendants appealed.

Civil ACTION tried before Ferguson, J., and a jury, at August Term, 1916, of GrTJTLFORD.

<p>1. Mechanics’ Lien — Notice—Trusts—Statutes.</p> <p>The amount due the contractor and subject to the claims of material men who have filed their statutory notice is not a debt due by the owner to the material men in the ordinary sense, but a fund held in trust for them strictly arising from the operation of the statute, in conformity with.its terms; and the statute imposes no duty upon the owner when the material men have not filed the required notice or acquired their lien accordingly.</p> <p>2. Same — Double Security — Distribution.</p> <p>The statute furnishes a double security to those furnishing material, etc.,. to the contractor used in a building and who give the statutory notice to the owner, in giving them a lien upon the property if enforced by suit within six months (Revisal, sec. 2019), and, also, an interest in the trust funds in the hands of the owner and due to the contractor, which funds are to be distributed pro rata among the claimants thereto entitled (Revisal, sec. 2023), the latter security not being in strictness a lien, but a right to have an accounting in an ordinary civil action and judgment for the amount due by ■the owner to the contractor.</p> <p>3. Same — Priorities.</p> <p>One who has furnished material to a contractor, which was used in the building, and who, with others, has given the statutory notice to the owner, who then owes his contractor, according to his contract, by enforcing his lien by action within the six months acquires no superior right in the pro rata distribution of the trust funds, hut only the additional security of his lien. Revisal, secs. 2019, 2021.</p>

Civil actioN tried before Carter, J., and a jury, at February Term, 1916, of MeckleNburg.

Civil actioN tried before Justice, J., and a jury, at February Term, 1916, of McDowell. This action was brought to recover damages for personal injuries .alleged to have been caused by the joint negligence of the defendants. Plaintiff alleged that on 1 August, 1913, he was employed by the defendant company to load the cars of the C. 0. and 0.

<p>Aepeal by plaintiffs from Harding, J., at March Term, 1916, of BUNCOMBE.</p>

, at March Term, 1916, of BuNoombe. This is an action brought' by the plaintiffs to recover damages on account of breach of contract by the defendant Crohon & Roden, Incorporated, in which the plaintiffs attached proceeds of a certain draft in the possession of the American National Bank of Asheville, North Carolina. The Old National Bank of Grand Rapids, Michigan, intervened and claimed ownership of the funds.

<p>1. Carriers of Passengers — Pullman Company — Duty to Passengers — Assault.</p> <p>Though the Pullman Company is not, technically speaking, regarded as a common carrier or its coach in a passenger train in the sense of an inn, it nevertheless owes a duty to its passengers to reasonably protect them from assault and robbery by its own employees and by others.</p> <p>2. Same — Evidence—Demurrer.</p> <p>Where the evidence is conflicting, but with evidence in plaintiff’s behalf tending to show that she was boarding a Pullman car with her railroad and Pullman ticket in the presence of its- conductor, who was assisting her, and was assaulted and robbed by an unknown person, which the conductor could readily have prevented, the evidence should be construed in the light most favorable to the plaintiff, and a demurrer thereto should be overruled.</p> <p>8. Appeal and Error — Evidence Immaterial — Expressions by Court.</p> <p>Where a Pullman Company is sued for damages arising from an assault and robbery of a passenger, and the testimony is sufficient to sustain a verdict in plaintiff’s favor, the admission in evidence of the contract between the Pullman Company and the railroad, with later expression by the judge, in the absence of the jury, is not reversible error, if erroneous.</p>

Civil ACTION tried before Adams, 3and a jury, at Bujstcombe Superior Court. Tbe action was brought to recover the amount of commissions for leasing real property in Asheville, N. C., and collecting the rent due for four months under a contract alleged by the plaintiff to have been made with the defendants Rumbough and wife. The other defendants are the lessee, Lowenbein-Rutenberg Company, and M. Y. Moore, the purchaser of the'property from the Rumboughs.

<p>Appeal by defendant from Harding, J., at May Term, 1916, of BuNcoatbe.</p>

, at August Term, 1916, of BuNcombe. This is an action to recover damages for the wrongful death of the intestate of the plaintiff, caused, as the plaintiff alleges, by the negligence of the defendant— (a) Installing a highly and intrinsically dangerous welding machine in their place of business, where the. plaintiff’s intestate’s duties required him to work.

<p>Insurance — Accident—Total Disability.</p> <p>A provision in an insurance policy that the insurer will pay a certain sum when the insured has become wholly disabled by bodily injuries and permanently, continuously, and wholly prevented thereby from pursuing any and all gainful occupations, will be construed as expressed, and the liability of the insurer thereunder will not be extended so as to include a total disability of the insured to perform his trade or vocation when other gainful occupations are still open to him.</p>

<p>Appeal by defendant from Harding, J., at September Term, 1916, of GRAHAM.</p>

, at May Term, 1916, of Haywood. This is an action growing out of a contract made and entered into by and between W. L. Hardin and The Champion Fiber Company, dated 21 January, 1907, the material provisions of which are as follows: 1.

Civil actioN tried before' Whedbee, J., and. a jury, at March Term, 1916, of Cabtebet. Tbe case was before this Court at Spring Term, 1915, and is reported in 169 N. C., at p. 1. We then granted a new trial. At tbe last trial tbe jury returned tbe following verdict: 1. Are Way Bros, tbe owners, in tbe actual occupation, and entitled to tbe possession of Lot No. 8 in said Block No. 7 in tbe plan of More-bead City? Answer: “Yes; by color of title more than seven years.” 2.

Special PROCEEDINGS to sell land for • partition, transferred to civil issue docket and heard on case agreed before Lyon, J., at November Term, 1916, of Pitt. There was judgment making division of the property, and certain claimants whose interests were adversely affected excepted and appealed.

Civil actioN to recover permanent, damages for tbe erection and maintenance of a telegraph line, poles, wires, etc., on plaintiff’s land, tried before Long, and a jury, at April Term, 3916, of Cabakrus. Defendant denied liability and pleaded the three years statute of limitations, Eevisal, sec. 5, subsec. 3.

<p>Appeal by defendant from Lane, J., at July Term, 1916, of Catawba.</p>

'PeoceediNg in habeas corpus, before Long, J., 13 June, 1916, in the Superior Court of Cherokee County. Upon the hearing his Honor rendered judgment, from which the petitioner, W. Mercer Fain, appealed.

MotioN to set aside a judgment, heard at July Termj 1916, of Swain, before S.ardvng, J. The court set aside the judgment, and plaintiff appealed.

Appeal by plaintiff from order of Adams, J., at chambers, 27 November, 1916, from BuNcombe. This action was commenced in Buncombe County to procure a writ of mandamus to compel tbe defendant board to certify as the result of the election for Congress on 7 November, 1916, that the plaintiff received 4,037 votes in said county and his opponent 4,325 votes, the plaintiff alleging that this result was ascertained and determined by defendant board on 9 November, 1916.

Civil actioN to recover possession of land and remove a cloud from plaintiff’s title, tried before Adams, J., and a jury, at August Term, 1916, of BuNCOMBE. Plaintiff showed a proper paper title to a tract of 465 acres of land in said county, the title taking its rise in a State grant to David Allison in 1796, and it was admitted of record that plaintiff had a proper paper title by mesne conveyance to this 465-acre tract included within the boundaries of the Allison grant.

PetitioN for mandamus, beard on facts stated and admitted in tbe pleadings, before Harding, J., at July Term, 1916, of Haywood.

<p>1. Appeal and Error — Statutes—Conditions Precedent.</p> <p>The statutory requirements as to making up cases on appeal to the Supreme Court and docketing them (Revisal, sec. 591) are conditions precedent which must be complied with, or the appeal will he dismissed.</p> <p>2. Appeal and Error — Case—Service—Extension of Time — Courts—Written Agreement.</p> <p>The trial judge has no power to extend the statutory time for service of case or counter-case on appeal, and this can only he done hy agreement between counsel, and will he enforced only when put in writing.</p> <p>0. Appeal and Error — Rules of Court — Transcript.</p> <p>A transcript of the record proper should be filed by appellant in the Supreme Court to entitle him to move for a certiorari under Rule 17; and the filing of the original papers, which should remain in the office of the Superior Court, is insufficient.</p> <p>4. Appeal and Error — Rules of Court — Motions to Dismiss — Transcript Duplicate.</p> <p>Where the appellant has filed a certificate of the clerk below that the case had been tried there, giving the names of the parties, and unsuccessfully applied for a certiorari in -the Supreme Court, it is not necessary to appellee’s motion to dismiss, under Rule 17, that he should duplicate the certificate.</p> <p>5. Same — Motion to Reinstate.</p> <p>• An appellant who has been guilty of gross laches in not complying with the statute and rules of Court regulating appeals is not entitled to have it reinstated after appellee’s motion to dismiss or affirm has been granted.</p> <p>6. Same — Indorsement of Service — “Due Time” — Written Agreement.</p> <p>Where the appellant has indorsed on his case on appeal for the appellee to sign, “Accepted in due time,” which the latter has stricken out before signing, and the case was served after the statutory time without written agreement as to extension of time: Held, a motion to reinstate will be denied.</p> <p>Allen, J., dissents; Hoke, J., concurs- in dissenting opinion.</p>

<p>Civil actiok tried before Harding, at August Term, 1916, of ChEROKEE.</p> <p>The action was brought by certain judgment creditors of S. D. Anderson against the defendants, upon the official bond of the feme defendant as administratrix with the will annexed of S. I). Anderson, her first husband.</p> <p>The defendants pleaded that there had been an adjudication of the matter in controversy in a former proceeding before the clerk of the Superior Court which was carried by appeal to the judge, who entered a judgment therein. It appears that the administratrix filed her final account, and some of the plaintiffs as creditors of her intestate filed exceptions thereto, but all of this resulted finally in the judge sustaining certain exceptions to the final account of the administratrix and overruling others, and remanding the proceedings to the clerk to reform the final account according to his rulings. This the clerk did, and upon a final adjustment of the matter upon the basis indicated in the judge’s rulings, the clerk found that the administratrix had received as assets applicable to debts of her intestate the sum of $2,084.46 instead of $2,279.65, as formerly reported, and that she had disbursed $1,965.22 instead of $2,627.21 as formerly reported by her, leaving in her hands for distribution to and among the creditors entitled thereto the sum of $119.24 and the clerk then adjudged that the final account be amended and reformed accordingly. The principal exceptions filed by the creditors were to the payment of taxes on her land with which the administra-trix had credited herself in the account. The court referred the case to Mr. T. J. Hill, who has performed his duty well and filed a very carefully prepared and accurate report. He passed upon each item of the account after taking evidence and reports that the class of creditors to which the plaintiffs belong are entitled to recover 79.6 per cent of their claims, the following being the statement:</p> <p>“Marler-Dalton-Gilmer Co., in the sum of.$ 140.18</p> <p>Treacy-Morris & Co., in the sum of. 153.19</p> <p>J. K. Orr Shoe Co., in the sum of. 73.45</p> <p>Bristol Overall and Pants Co., in the sum of. 41.04</p> <p>Madison Flouring Mills Co., in the sum of. 28.27</p> <p>Total .$ 436.13”</p> <p>The judge confirmed the report and rendered judgment in favor of each creditor for the amount found by the referee as his share, and for costs, and the defendant administratrix appealed.</p>

Civil actioN tided at January Term, 1916, of DupliN, before Allen, J., upon these issues: 1. Did defendant wrongfully and unlawfully cut and remove timber from tbe lands of plaintiff, as alleged in tbe complaint? Answer: “Yes.” 2. What damage, if any, is plaintiff entitled to recover of tbe defendant? Answer: “$330.” From tbe judgment rendered, defendant appealed.

Civil actioN tried at January Term, 1916, of DupliN, before Allen, J., upon these issues: 1. Did tbe defendant wrongfully and unlawfully cut and remove timber from tbe lands of tbe plaintiff, as alleged in tbe complaint? Answer: “Yes.” 2. What damage, if any, is plaintiff entitled to recover of tbe defendant? Answer: “$90.” From tbe judgment rendered, tbe defendant appealed.

<p>Parties — Deeds and Conveyances — Mortgages—Actions—Accounting.</p> <p>A purchaser of land from a mortgagor upon consideration that the former pay off the mortgage, the amount of which the latter agreed to ascertain, but failed or refused to do, may maintain his action against the mortgagee as a necessary party, for an accounting, in order that he may relieve the land from the lien of the mortgage, and remove the cloud upon his title. Revisal, sec. 411.</p> <p>Clark, C. J., concurring; Brows, J., concurring.</p>

ActxoN tried at May Term, 1916, of Beautoet, before Allen, J., upon these issues: 1. Was the property of the plaintiff injured by the negligence of the defendant? Answer: “Yes.” 2. If so, what damages is plaintiff entitled to recover? Answer: “$150.” From the judgment rendered, defendant appealed.

ActioN tried before Bond, J., and a jury at January Term, 1916, of OuReituck. Appeal by the- plaintiffs from a judgment in an action to try the title to land and to recover damages for trespass thereon. Two actions were instituted, one in favor of the plaintiff Brabble and the other in favor of the plaintiff Snowden, and were consolidated. The deed under which the plaintiffs claim called for 65 acres of land, and leaving out the, land in controversy, they have 66%0 acres.

, at July Special Term, 1916, of Edge-COMBE. Tbis action was brought for the purpose of appointing a receiver for the defendant corporation and for dissolving same; on 23 January, 1914, the defendant corporation was placed in the hands of C. A. Johnson, temporary receiver, who thereafter operated same until the March term of the Edgecombe Superior Court, when C. A. Johnson and H. P. Foxhall were appointed permanent receivers, who thereafter operated same until., 1914.

<p>Appeal and Error — Costs—Brief—Rule of Court.</p> <p>Costs of brief exceeding twenty pages will not be taxed against tbe unsuccessful party, under tbe rule of tbe Supreme Court.</p> <p>Brown, J., not sitting.</p>

<p>L Appeal and Error — Case—Service—Objections and Exceptions.</p> <p>Technical and immaterial objections made to tbe service of cases on appeal upon opposing parties are not favored by tbe Supreme Court; and an appellant may not decide for bimself upon tbe sufficiency of appellee’s counter-statement because not served witb bis own statement attached; tbe proper procedure being to except to tbe sufficiency, have it passed upon by tbe trial judge while settling tbe case, and, upon an adverse bolding, by exception thereto for tbe Supreme Court..</p> <p>2. Same — Recordari—Motion to Affirm.</p> <p>Where a counter-case on appeal bas been served without appellant’s statement attached, and tbe latter, for tbat reason, bas not requested :the judge to settle the case, but applies for a writ of certiorari in the Supreme Court to bring up from the Superior Court his statement, which appellee had filed with his own statement in the clerk’s office, and it appears that each statement had been served on the adverse party in time: Held, the motion for certiorari will be denied; and if no error in the record proper, filed in the appellee’s motion, is found, the judgment below will be affirmed.</p>

ActioN, tried before Lyon, J., at March Term, 1916, of Lee, upon these issues: 1. Was tbe mortgage dated 20 March, 1889, satisfied by the plaintiff before the alleged sale of the land by Bright to Johnson? Answer: “Yes.” 2. Was the mortgage duly foreclosed as provided therein? Answer: “No.” 3. What amount, if anything, is the defendant indebted to the plaintiff?

ActioN tried before Whedbee, J., and a jury, at May Term, 1916j of Craven. On issues submitted, the jury rendered the following verdict; 1. Did David E. Debruhl, the testator of defendant, contract and agree with the plaintiff that if plaintiff would render the services declared on the complaint that he would will to the plaintiff his entire estate, as alleged? Answer: “No.” 5.

Issue of devisavit vel non, tried at March Term, 1916, of Pitt, before Whedbee, J. Upon the submission of the usual issue, the jury found that the paper-writing propounded for probate was the last will and testament of K. H. Fleming, deceased.

<p>Civil actioN tried before Whedbee, J., at May Term, 1916, of Chaven-,</p> <p>This is an action to recover damages for failure to deliver a car-load of potatoes.</p> <p>The facts are fully stated in the report of the ease on former appeal, 171 N. 0., 190.</p> <p>There was a judgment in favor of the plaintiff, and the defendant appealed.</p>

, at April Term, 1916, of LeNOIr. This is an action upon a note executed by the defendant and payable on 1 January, 1915. The defendant offered to prove that at the time of the execution of the note an agreement was entered into between him and the plaintiff that the note should not be paid until two years from its date. This evidence was excluded, and the defendant excepted. There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

Civil ACTION heard upon demurrer at March Term, 1916j of Sajvip-soN. A demurrer was interposed by defendant Wooten. The court, Bond, J., presiding, overruled the demurrer, and said defendant appealed.

This is an action by the receiver of the Soloman Construction Company to-recover $1,498.86. On 11 April, 1913, the Soloman Construction Company, a corporation, entered into a contract with the county of Iredell for the erection and completion of a county home at and for the price of $25,800, and thereafter did extra and additional work of the value of $68, and sold the county some lumber of the value of $10.53, making a total of $25,878.53.

ActioN tried before Daniels, J., September Term, 1915, of Pender, upon these issues: 1. What is the true dividing line between plaintiff’s and defendant’s land? Answer: “From H to the river.” 2. Did the defendant wrongfully and unlawfully trespass upon same or any part thereof? Answer: “Yes.” From the judgment rendered, defendant appealed.

ActioN tried at June Term, 1916, of Wake, before Connor, J., upon these issues: 1. Was the plaintiff’s mule killed as a result of the negligence of defendant, as alleged in the complaint? Answer: “No.” 2. If so, did plaintiff contribute by bis own negligence to the cause of the death of the said mule? Answer: “Yes.” 3. What sum, if any, is plaintiff entitled to recover of the defendant as damages? Answer: . From the judgment rendered, plaintiff appealed.

ActioN tried before Devin, J., and a jury, at March Term, 1916, of Oeange, on appeal from tbe court of a justice of tbe peace. The plaintiffs alleged liability of the defendant on certain cedar log orders, to the amount of $199, under the circumstances and conditions set out in the evidence. The defendant denied any liability. There was a verdict in favor of defendant, judgment, and appeal by plaintiff.

Aottow tried at January Term, 1916, of AlamaNce, before Devin, J., upon this issue: Are defendants indebted to the plaintiffs, and if so, in what sum? Answer: “$662.04 and interest.”

ActioN to recover on insurance policy in defendant order, tried before Cline, J., and a jury, at March Term, 1916. of G-uileoed. There was verdict for plaintiff. Judgment thereon, and defendant excepted and appealed.

ActioN tried before Garter, J., at April Term, 1916, of G-astoN. Plaintiff alleged that his intestate, J. W. Stout, was killed by a collision between an automobile, driven by another, in which he was riding, and a train of defendant at a crossing in East Kings Mountain on 17 August, 1914, and that his death was caused by defendant’s negligence. The jury returned the following verdict: 1.

, at November Term, 1915, of Davie. This action was instituted by the plaintiff, board of education of Davie County, against the board of commissioners of Davie County, brought by the plaintiff to compel the defendant, by writ of mandamus, to levy a special tax of 10 cents on the property and 30 cents on the poll, in addition to the levy made by the defendant for ordinary and special county purposes, to supply an alleged deficiency tp run the schools of Davie County for a…

<p>ActioN beard by Ferguson, J., at February Term, 1916, of Rowan.</p>

ActxoN to set aside a deed and recover land, tried before Courier, and a jury, at July Term, 1916, of Randolph. ■ There was verdict for plaintiffs. Judgment, and defendant excepted and appealed.

■ActioN heard by Lyon, J., at May Term, 1916, of WayNE. This is a controversy without action, heard on the following agreed facts: Zion Reid, late of Wayne County, died on the .... day of., 1890, having executed his last will and testament, duly probated and recorded in the office of the clerk of the Superior Court of said Wayne County, in words and figures as follows: Be it remembered that I, Zion Eeid, of Wayne County, in the State of North Carolina, being of sound mind…

ActioN to recover damages, tried before Bond, J., at February Term, 1916, of LenoiR. The nature of the action and the material facts are stated in the report of the former appeal, 168 N. 0., 469.

This is an action brought by tbe father to recover damages for the wrongful death of his infant son. The defendants filed a demurrer, which was overruled, and the defendants appealed.

<p>Appeal by prisoner from Stacy, J., at May Term, 1916, of New IIaNovee.</p>

<p>Criminal law — Principal and Surety — Appearance Bond — liability of Surety.</p> <p>The sureties on an appearance bond upon the usual conditions thereof, that the defendant will appear at court “and not depart the same without leave,” obligate themselves that the defendant appear according to the precept of the court until discharged, and they remain liable thereon until the defendant is placed in custody, or gives a new bond, or is discharged on acquittal or by order of the court; and where an increase of such bond has been requested, and denied, and without further order the court adjourns, on the failure of defendant to appear at the next succeeding term judgment will be given against the sureties.</p>

<p>OitiMTNAi, actiON beard on appeal from Beeorder’s Court at August Term, 1916, Superior Court of Beaufort County, before Allen, J., and a jury.</p> <p>The charge was for violating an ordinance of the town of Batb which' prohibited a dealer from keeping his store or shop open on Sunday for purpose of buying or selling or transacting business except in case of necessity, and also prohibiting the proprietor of a store from allowing third persons, persons other than himself or clerk, from entering his place of business on Sunday; the fine for violation of such ordinance being fixed at $10. The ordinance contains provision also that drug stores may be kept open at all times.</p> <p>There was special verdict rendered as follows: “That on a Sunday in August, 1915, the defendant entered his store in the town of Bath and allowed one Clyde Paul to enter the same with him, and while he and the said Paul were in the store two or three others entered without objection by defendant; that on a Sunday in November, 1915, defendant again entered the store in the town of Bath, and while there allowed one Archbell to enter the-same (who was not a clerk). If upon the foregoing facts the court be of opinion that the defendant is guilty, the jury so find for their verdict, and if the court be of opinion that he is not guilty, the jury find him not guilty.”</p> <p>The court being of opinion that, on the facts as found, defendant was guilty, it was so entered. From judgment imposing the fine, defendant excepted and appealed.</p>

INDICTMENT for murder, tried before Lyon, J., at March Term, 1916, of Edgecombe. The prisoner was charged with having murdered Easter Grimes on 2 January, 1916. There was a verdict of murder in the second degree and a sentence of twenty years in the State Prison, from which judgment the prisoner .appealed.

ObxmiNal action for carrying a concealed weapon, tried before Connor, J., at April Term, 1916, of Wane. Defendant was indicted in two separate bills for an assault witb a deadly weapon on Huley Mangum, and carrying a concealed weapon, witb which the assault was alleged to have been committed. By consent, the two cases were consolidated and tried together.

INDICTMENT under section 3673, Revisal, for unlawfully and willfully removing a certain fence, tried at May Term, 1916, of New Hanover, before Stacy, J. Tbe jury rendered verdict of guilty. From tbe judgment rendered tbe defendant appealed.

CRIMINAL action, originating in the recorder’s court and tried upon appeal in the Superior Court of Columbus County, April Term, 1916, Peebles, J., presiding. The warrant charges an assault and battery upon Henry C. Jolly, Jr., by “slamming him down on the floor, and up against the side of the house in a very cruel and hurtful manner.” The defendant, was adjudged guilty by the jury and from the judgment appealed.

INDICTMENT for assault and battery, tried at May Term, 1916, of Lenoir, before Bond, J. There was a verdict of guilty. The court sentenced defendant to twelve months imprisonment in the common jail of Lenoir County, not to be worked on the roads. The defendant, appealed.

INDICTMENT for housebreaking and robbery, tried before Long, J., and a jury, at July Term, 1916, of Fobsyth. The prisoner was indicated for breaking into the banking bouse and storehouse of the Center Mercantile Company and stealing therefrom $100 in money. There was evidence tending to prove the guilt of the prisoner.

<p>1. Taxation — Inheritance Tax — Interpretation.</p> <p>Our inheritance tax laws should be liberally construed to the end that all property coming within their provisions may fairly and reasonably be taxed, keeping in view the history of this legislation and the statutory amendments made from time to time.</p> <p>2. Same — “Section.”</p> <p>Our statutes passed upon the subject of inheritance tax are construed as showing an advancing tendency to include all property, to decrease exemptions, and to maintain a distinct classification of persons, placing the lineal descendant, the lineal ancestor, husband and wife in the most favored class, and the stranger and the corporation in the class subject to the highest tax; and construing the act of 1913, applying the exemptions only to those in the first class, with the act of 1915, reducing the classifications from five to three, and allowing an exemption of $2,000 to “all other beneficiaries in this section”: Held, the word “section” was intended and meant for the subdivision in which it was placed, and does not apply to the whole section to exempt strangers of the blood of the testator along with the beneficiaries of the first class.</p> <p>3. Same — Intent.</p> <p>The inheritance tax law, in grading the widow and blood relations, etc., of the deceased into one classification, exempting property to the value of “$2,000 to a child over 21,” and permitting but one exemption to grandchildren of one child of the deceased, etc., cannot rationally be construed, by the additional words to this classification, “all other beneficiaries in this section, $2,000,” to apply to the second and third classification, so as to give this exemption to strangers of the testator’s blood, who take under his will.</p>

<p>Appeal by prisoner from Cline, J., at March Term, 1916, of Guil-PORD.</p>

Action commenced upon warrant in the recorder’s court of the district of Denton, DavidsoN County. The defendant was convicted, and appealed to the Superior Court and tried at February Term, 1916, Gime, J., presiding. The defendant was convicted and sentenced, and appeals to the Supreme Court.

CRIMINAL action tried before Qline, J., at February Term, 1916, of Davidson. The defendant 'Walton and a female defendant were indicted for fornication and adultery, and from a judgment rendered on a verdict of guilty, Walton appealed. Tie was sentenced to jail for six months.

ObimiNal action tried before GUne, J., and a jury, at June Term, 1916, of Guilford.

<p>Appeal by defendant from Garter, J., at May Term, 1916, of Gaston.</p>

<p>INdtctment for an assault with intent to commit rape, tried at' April Term, 1916, of RaNdolph, before Ferguson, J.</p> <p>The defendant pleaded not guilty. The jury returned a verdict of guilty of assault with intent to commit rape.</p>

<p>IkdictmeNT tried before Ferguson, J., and a jury, at August Term, 1916, of Caldwell. Defendant appealed.</p>

<p>Appeal by defendant from Cline, J., at Special June Term, 1916, of Guilpoed.</p>

<p>1. Criminal Law — Criminal Negligence — Evidence—Homicide.</p> <p>In order to bold one a criminal for a negligent act of omission or commission, the act complained of must he a higher degree of negligence than is required to establish negligent default on a mere civil issue, and in order to a conviption of involuntary manslaughter, attributable to a negligent omission of duty, when engaged in a lawful act, it must be shown that a homicide was not improbable, under all the facts existent at the time and which should reasonably have an influence and effect on the person charged.</p> <p>2. Same — Locomotive Engineer — Collision—Signals.</p> <p>Three northbound trains were ordered to pass at a certain station at night, the first to proceed to the station and stop on a parallel track, tbe second 1,200 feet south., of the station, an irregular stopping place, and near a cross-over switch by means of which it could have taken an available siding, but which was permitted to remain on the main track for seven minutes until collided with by the third, a fast passenger train required to make its schedule, which it was then making. South of the location of the second train the track curved 2% or 3 degrees for a distance of about 600 feet, and at its southern termination was an electric signal, with another such signal about 1,000 feet further south, both operated at the railroad yards beyond, and with which the prevailing conditions of the track should have been shown, but the first showed track was clear and the second that the main-line track switch was set for a side-track and that the engineer can proceed to the station “prepared to stop within the limits of his vision.” There was nothing to indicate to the engineer of the third train that the second one was ahead on the main-line track, and that he should stop his train; and the employees on the second train failed to comply with the company’s rules to place torpedoes behind them on the track or send a man back with a lantern to warn approaching trains. Held, the evidence was insufficient to convict the defendant engineer on the third train of manslaughter, in the absence of evidence that he was aware that a train was ahead of him on the track at the time, or that a homicide would reasonably be expected to follow from anything that he did or failed to do.</p> <p>3. Criminal Law — Homicide—Nonsuit—Appeal and Error — Judgment—Verdict.</p> <p>Upon motion to nonsuit upon the evidence on a trial for a homicide, now allowed by statute, when it appears that the evidence is insufficient for conviction, the action will be dismissed, and, under the statute, the judgment thereof has the same force and effect as a verdict of not guilty.</p>

INDICTMENT for murder, tried before Lane, J., and a jury, at April Term, 1916, of Pole. Tbe prisoner and Ed. Bridgem.an- were indicted for tbe murder of John Hayes on 25 December, 1915. Tbe jury convicted tbe prisoner of murder in tbe first degree and be bas appealed from tbe judgment upon tbe verdict. Ed. Bridgeman was convicted of murder in tbe second degree, but tbe verdict was set aside by tbe court.

<p>Criminal law — Seduction—Trials—Supporting' Evidence — Statutes.</p> <p>Upon trial under an 'indictment for seduction under a breach of promise of marriage, Revisal, sec. 3354, requiring supporting evidence to make that of the prosecutrix competent upon the three elements of the crime, it is not necessary that the supporting evidence be sufficient, as substantive evidence, for conviction; and where the good character of the prosecutrix before the act-has been testified to by other witnesses, the act itself admitted, and there is testimony that the defendant had paid the prosecutrix exclusive and assiduous attention for years under circumstances evidencing that he was her accepted lover, her testimony as to the promise of marriage is sufficiently supported by the testimony of others to be competent within the meaning of the statute.</p> <p>Clark, C. J., concurring.</p>

<p>Spirituous Liquors — Cider—Manufactured, Etc. — Statutes—Exceptions.</p> <p>The right to sell property is one of the incidents of ownership and should not be withdrawn or restricted unless clearly required by statute; and construing together the laws relative to prohibition, chapter 71, Extra Session of the Legislature of 1908, excepting the sale of “cider in any quantity by the manufacturer from fruits grown on his own lands within the State,” appearing in substantially similar terms.in “An act to prohibit the sale of near-beer,” etc., ch. 35, Laws 1911, sec. 3, and the exception from the Search and Seizure Laws, ch. 44, Laws 1913, of “wines and ciders in any quantity from fruits grown on the premises of any persons in whose possession they may be,” and ch. 97, Laws 1915, passed primarily to regulate the shipment of spirituous liquor, which is silent upon this subject, it is Held, that the sale of cider containing 4.7 per cent alcohol does not come within the inhibition of our statutes, and may be sold by the manufacturer from fruits grown on his own premises within the State, or by his agent, when the parties are acting in good faith.</p> <p>Clark, C. J., dissenting.</p>

<p>1. Appeal and Error — In Forma Pauperis — “Good Faith” — Statutes.</p> <p>The requirement of Revisal, sec. 3278, that to appeal in forma pauperis in criminal cases it must appear that “the application is in good faith,” is jurisdictional, and upon a failure of compliance therewith the application is fatally defective and the appeal will he dismissed.</p> <p>2. Same — Motion to Reinstate — Offer to Give Bond.</p> <p>After an appeal in forma pauperis has been dismissed in the Supreme Court for failure to show that the application was made in good faith, Revisal, sec. 3278, it is too late for the appellant to offer to file bond or make a deposit on his motion to reinstate.</p>

INDICTMENT for blackmailing (section 3428, Revisal) tried at February Term, 1916, of Buncombe; Harding, J. The defendant was convicted and sentenced, and from the judgment Tendered appealed.