Volume 173 — North Carolina Reports

<p>Appeal from restraining order rendered by Wheclbee, J.; at chambers, 23 November, 1916; from Beaueobt.</p> <p>This action is brought to enjoin the defendant town and its commissioners from issuing $60,000 in bonds, for the establishment of' a system of electric lights, water-works, and seweragé. The defendant town has a population of 3,500 persons, and according to the findings of the board of commissioners it has no sufficient light system, so that it is frequently left in total darkness; it has no water supply system, in consequence of which its citizens suffer great loss and inconvenience; and the health of its citizens is seriously menaced for want of a sewerage system. It is found that such things are a necessary expense without which the municipality is seriously embarrassed in its health and comfort, as well as greatly retarded in its development.</p> <p>Upon the final hearing of the restraining order, Whedbee, J., on 23 November, 1916, rendered the following judgment:</p> <p>“It is found as a fact by the court that the system of electric lights, water-works, and sewerage proposed to be installed in the town of Bel-haven by the defendants, in the manner set out in the resolutions of the board of aldermen of the town of Behaven, are necessary expenses for the said town; it is found as a fact that the bonds, in the sum of $60,000, proposed to be issued by the defendant town are to be issued for the purpose of providing the necessary and proper funds for the acquiring and installing the said systems of electric lights, water-works, and sewerage; it is found as a fact that the present assessed value of real and personal property in the said town of Behaven is as alleged in the complaint and admitted in the answer, and that the present taxes imposed by the said town are as alleged in the complaint and admitted in the answer; it is found as a fact that the present bonded indebtedness of said town is $15,000; (it is found as a fact that said town has no floating indebtedness that will not be paid off by taxes now due said town; it is found as a fact that the present population of said town is about 3,500) ; it is found as a fact that the issuance of said $60,000 of bonds of the said town has been duly and regularly authorized by the board of aldermen of said town, and that the said bonds, when issued in accordance with the resolutions of the defendant town, or board of aldermen thereof, will constitute valid and binding obligations of the said town.”</p> <p>Thereupon his Honor dissolved the restraining order and dismissed the action. Plaintiff appealed.</p>

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

OrvTL actioN tried before Whedbee, J., and a jury, at October Term, 1916, at Beatjfobt. This is an action to try tbe title to a small piece of land claimed under a common source. Tbe plaintiff claims under a deed calling for defendant’s line. The defendant claims under one Latham.

<p>Civil actioh from. Currituck, tried before Whedbee, J., upon a motion for an injunction against proceeding under an execution issued upon a judgment in a former action, entitled Wright v. Seip, which motion was heard in December, 1916. The injunction was granted and the defendant, J. 0. Wright, appealed.</p> <p>The former judgment directed that J. 0. Wright, plaintiff therein, recover from the Provident Land Company, one of the defendants therein, seventy-five shares of the original issue of $150,000 of its capital stock, of tbe par value of $100 per share, and tbat defendant deliver tbe stock to tbe plaintiff, and in tbe event tbat tbe defendant failed to deliver tbe stock “within sixty days after final judgment in said case, tbe plaintiff should recover of tbe said defendant and its codefendants in that case tbe sum of $7,500, tbe value of tbe stock as assessed by the jury. Costs were also adjudged against tbe defendants. Ey consent of tbe parties, “tbe judgment was signed out of tbe county and out of term, but was to be recorded and filed as of September Term, 1916.” Tbe court adjourned for tbe term on 8 September, 1916, and the judgment was signed on 29 September, 1916, and sent to tbe clerk of tbe court of Currituck County and was filed by him in tbe papers in tbe case on 30 September, 1916. It further appears tbat on 10 November, 1916, defendants in tbat action tendered to tbe plaintiffs therein certificate of stock No. 55 in tbe Provident Land Company for seventy-five shares, valued at $7,500, which tender was rejected by tbe plaintiff J. O. "Wright, upon tbe ground tbat tbe tender was not made in time, tbat is, within sixty days after judgment. This action was then brought by tbe defendants in tbat suit to restrain tbe plaintiffs (defendant herein) from proceeding under an execution which the clerk bad issued, at bis request, upon tbe judgment in tbe former case. Tbe court held tbat as tbe stock was tendered by tbe plaintiffs herein, tbe time of tbe tender was immaterial, and continued tbe restraining order to tbe bearing. Defendant appealed.</p>

Civil actioh tried on appeal from a justice’s court before Whedbee, J., and a jury, at October Term, 1916, of Daee. The action was to recover $75, tbe amount of a draft wliicb plaintiff firm bad advanced on an instrument, in terms as follows: Manteo, 9 September, 1914. At sight pay to order of W. II. Basnight $75, value received, and •charge same to account of W. C. Weir. (Signed) W. 0. Weie.

Special PROCEEDING by plaintiff for an increased allowance for year’s provision under section 3104, Revisal, heard upon appeal from the clerk by Wheclbee, J., at Fall Term, 1916, of Hyde. Upon the hearing the court rendered judgment in favor of plaintiff, from 'which defendants appealed.

<p>Appeal by defendants from Whedbee, J., at November Term, 1916, of PaSQTJOTANK.</p>

<p>1. Bills and Notes — Release—Burden of Proof.</p> <p>Joint makers upon the face of a negotiable instrument ’ are deemed to be primarily liable thereon, Revisal, sec. 2342; and in an action upon the note the burden is upon the defendants to prove any matter in release, if brought within three years.</p> <p>2. Same — Extension of Time — Notice—Statutes.</p> <p>In an action upon a negotiable instrument the defendants on its face being joint makers, the mere fact that the plaintiff had told one of the defendants, without the knowledge of the other, “that he would take up and carry the note until fall,” is not an extension of payment for a “fixed and definite” period, which would operate as a release to such other from liability (Revisal, sec. 2270); whose remedy is by quia timet notice under Revisal, sec. 2846.</p> <p>0. Bills and Jiotes — Principal and Surety — Release—Trials—Evidence—Instructions.</p> <p>When in an action upon a negotiable instrument a defendant claims that he was in fact a surety, though he théreon appears to have signed as coprincipal, and contends that he has 'been released from liability thereon by reason of an extension of time given his principal by the holder, and fails to introduce evidence that he, in fact, signed as surety, it is proper for the court to instruct the jury to answer the issue for the plaintiff if they believe the evidence.</p>

<p>1. Processioning — Title—Issue—Pleadings—Evidence.</p> <p>While in proceedings to procession land the title thereto is not directly involved, it may become incidentally one of the questions or issues in the case raised by the pleadings or the facts therein which must be decided before the main issue as to the location of the true dividing line can be determined.</p> <p>2. Same — Adverse Possession.</p> <p>In proceedings to procession land, where the defendant claims he has been in adverse possession up to the location of the line he claims, with supporting, evidence, -winch the plaintiff disputes, an instruction is proper that the jury consider the possession of the respective parties, with respect to the disputed line, as evidence to determine its location; and if the defendant’s adverse possession for twenty years or more up to that line was sufficient, it should be found in accordance with his contention.</p> <p>8. Processioning — Surveyor—Conduct of Parties — Evidence.</p> <p>Testimony of the surveyors and the conduct of the parties as to the location of the disputed line between adjoining owners in proceedings to procession it does not necessarily establish it, but is only evidence thereof.</p>

Civil acttoN to recover damages for alleged negligence resulting in serious physical injuries, tried before Harding, J., and a jury, at June Term, 1916, of BuNCOmbe.

<p>1. Appeal and Error — Cities and Towns — Streets—Adverse Possession — Evidence — Trials.</p> <p>Title to land used by a town for street purposes cannot be acquired by adverse possession, and tbe question as to whether the locus in quo was ever made a public street and so claimed and used by the town, when it arises in the controversy, is important, rendering the admission of incompetent evidence as to such matter reversible error.</p> <p>2. Cities and Towns — Streets—Adverse Possession — Maps—Trials—Evidence.</p> <p>Testimony that a map of a town had hung for thirty years or more in the office of the register of deeds of the county and generally used, without evidence as to who had made it, by what authority, or that the town had recognized it as official, is incompetent to show, by omission, that the street had not been made and used by the town, in an action against the town wherein a citizen claims title by adverse possession.</p>

Civil action, tried before Whedbee,, J., and a jury, at August Term, 1916, of WASHINGTON. The action was to recover damages for physical injuries received when plaintiff was being initiated into a subordinate lodge of 'defendant, the Sovereign Camp or the Order. At the close of plaintiff’s testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

Civil actioN, tried before Whedbee, J., at December Term, 1916, of Beaufort. Held: upon these facts, and so .adjudged, that George T. Tyson had the power under the will of Seth Tyson to convey the land * in controversy, and that the defendant was the owner thereof, and the plaintiffs excepted and appealed.

Civil actiow, tried before Whedbee, Jand a jury, at October Term, 1916, of Beaufort. Plaintiff Riley W. Edwards brought an action in the Superior Court of Beaufort County against PI. PI. Proctor and L. Y. Holliday to recover damages for a breach of a contract by which they employed him to cut timber on their land, and they brought an action in Pitt County against him to recover a balance due on said contract to them by Edwards.

<p>1. Mortgages — Sales — Agreements to Purchase — Statute of Frauds — Res . Judicata — Estoppel—Intervenor—Subsequent Encumbrance.</p> <p>Where a mortgagor of lands has attempted to carry out on alleged arrangement with another. that he will bid in a part of the land at a price sufficient to pay off the lien, and it appears that there was no writing to bind such other person to the alleged transaction', and it results in his denying the right of such other to bid in the land for him, which the court sustains without appeal taken, resulting in a resale of the land to pay the mortgage debt; thereafter a second encumbrancer may not intervene and set up the same matter, contending that the first .mortgage had been satisfied, and ask that the junior mortgage and the sale thereunder be accordingly set aside.</p> <p>2. Judgments Final.</p> <p>A judgment is filial which decides the case upon its merits without reservation for other and future directions of the court.</p> <p>3. Mortgage Sales — Proceeds—Judicial Sales — In Custodia Legis.</p> <p>The proceeds of a sale of lands under a power thereof contained in a mortgage are not in custodia legis. or subject to its control, as in judicial sales.</p>

Civil ACTION, tried before Allen, J., and a jury, at November Term, 1916, of Edgecombe. Tbe action was to recover a balance claimed to be due on a sale of timber, wbieb defendant contended bad been fully paid for.

Civil action, tried before Allen, J., at October Term, 1916, of EDGECOMBE. Tbis is an action, commenced before a justice of the peace, to recover $165. The plaintiff filed the following paper before the justice of the peace: Complaint. Van Smith Building Material Company. DEALERS IN Lime, Dement, Plaster, and All Building Material. Charleston, S. C., February 4, 1915. Car No. 31516 Atlantic Coast Line. Sold to Tarboro Hardware Company, Tarboro, N. 0. 150 bbls.

<p>Civil aotioN, tried at January Term, 1916, of WaRBEbt, before Stacy, J., upon these issues:</p> <p>Did the defendant maliciously or willfully, wantonly, and rudely mistreat and humiliate plaintiff while a passenger on its train? Answer : “Yes.”</p> <p>What, if any, damage, is the plaintiff entitled to recover? Answer: “$200.”</p> <p>From the judgment rendered, defendant appealed.</p>

<p>1. Mortgages — Sales—Place of Sales — Contracts—Statutes.</p> <p>Tbe requirement of Revisal, sec. 641, refers to sales under a foreclosure of a mortgage by order of court, and when made solely under the power of sale directed by the mortgage, the place of the sale therein designated controls; nor is this affected by Revisal, sec. 1042, which omits any requirements as to the place of sale, but provides for the advertisement at the courthouse door of the county wherein the land is situated, and is directory only.</p> <p>2. Same — New Counties.</p> <p>Where before the creation of a new county a mortgage is given on •lands directing that the sale under the power thereof, be made, on default, at the courthouse door of that county, and the lands fall within a new county thereafter created, objection to the validity of the sale merely because it was made at the designated place canroot be sustained.</p> <p>3. Mortgages — Place of Sale — Subsequent Statutes.</p> <p>'Statutes changing the place of sale of lands under a mortgage cannot apply to mortgages or deeds of trust executed prior to the enactment.</p>

Civil actioN, tried before Adams, J., at August Term, 1916, of BtTNCOMBE. This is an action to recover a lot of land in the 'city of Asheville, the controversy being as to the ownership of the land on the plat, which is copied below, between the lines B, M, N, I, or as reduced by the widening of Main Street and the opening of Walnut Street between the lines 1, 2, 3, 4.

Civil actioN, tried before Stacy, J., at January Term, 1916, of WARREN. ' This is an action to recover damages to a car-load of sheep and goats shipped over the road of the defendant from Artesia, N. 0., to Ridge-way, N. C. The action was commenced in the recorder’s court of Warren County and was tried in the Superior Court on appeal. The allegation of negligence relied on by the plaintiff was that the defendant failed to provide proper and adequate facilities for unloading.

<p>Appeal by defendant Finch from Lyon, J., at May Term, 1916, of Wayste.</p>

Civil actioN, from NORTHAMPTON, beard, on return to preliminary restraining order, before Cooke, J., bolding courts of tbe Third Judicial District, on 16 November, 1916. There was judgment dissolving tbe restraining order and dismissing tbe action as to plaintiff’s right to recover, and plaintiffs excepted and appealed.

<p>1. Appeal and Error — Trials—Issues.</p> <p>The refusal of the court to submit issues tendered by a party to the action will not be held as reversible error when the issues submitted present every contention raised by the pleadings therein.</p> <p>2. Pleadings — Amendments — Allegations — Independent Cause — Original Cause — Courts—Automobiles.</p> <p>In an action to recover damages alleged to have been caused by the negligent running of defendant’s automobile, stated in the original complaint as that of the defendant’s driver and daughter, an amendment allowed by the court, setting out that the driver, the co-defendant, was at the time employed to instruct and teach the defendant’s minor daughter, and that he was negligent and reckless in permitting the automobile to run into the plaintiff’s buggy, does not constitute a new cause of action, but is practically the same as that originally stated, and its allowance is not reversible error.</p> <p>8. Appeal and Error — Trials—Evidence—Nonsuit.</p> <p>On appeal from a disallowance of defendant’s motion to non-suit upon the evidence, the evidence introduced for plaintiff must be taken as true, and that for the defendant not considered.</p> <p>4. Automobiles — Negligence—Evidence—Nonsuit.</p> <p>In an action to recover damages for the alleged negligent running of the defendant’s automobile, evidence tending to show that defendant owned the automobile for family use, and has employed another as his agent to teach his minor da-ughter to run it, and that the injury resulted in the latter’s negligence, is sufficient to take the case to the jury upon the issue of defendant’s actionable negligence, and a motion to non-suit thereon was properly overruled. Linville v. Nissen, 162 N. C., 95, cited and distinguished.</p>

<p>1. Plea in Bar — Accord and Satisfaction — Statutes—Issues—Court’s Discretion.</p> <p>Where, among other defenses to an< action, the defendant pleads accord and satisfaction, Revisal, 859, the discretionary power of the trial judge in submitting this issue to the jury .before submitting 'the other issues upon the merits will not be reversed on appeal.</p> <p>2. Accord and Satisfaction — Tender—Court Costs.</p> <p>Where a plea in accord and satisfaction, Revisal, sec. 859, has been made in bar to an action that defendant bad paid an agreed amount and costs into the clerk’s office, the fact that a witness ticket of a small amount, which the plaintiff had refused to receive, was not taxed in the costs, will not affect the validity of the tender.</p> <p>Allen. J., concurring.</p>

Civil actioN, tried before- Stacy, J., at August Term, 1916, of CHATHAM. Tbis is a proceeding for tbe sale of land for partition, tried in the Superior Court upon the defendants’ plea of sole seisin. It was admitted in this Court that W. B. Harward, the father of the feme plaintiff, and the grandfather of the defendants, was originally the owner of the land in controversy, and that the plaintiff and the defendants are his heirs at law.

<p>Civil actioN, tried before Cox, J., at January Term, 1917, of WayNe.</p> <p>This is an action to recover the purchase price of a tract of land which the plaintiff, Mary J. Ginn, has contracted to sell the defendant.</p> <p>The defendant refused to pay the purchase money and to accej)t the deed, upon the ground that the plaintiff has not a good title to the land.</p> <p>On 30 September, 1909, John B. Exum and wife conveyed the land in controversy by deed to J. Hiram G-inn and bis wife, tbe plaintiff Mary J. Ginn.</p> <p>In April, 1910, tbe said J. Hiram Ginn died leaving tbe plaintiff Mary J. Ginn surviving bim, but prior to bis death be and bis wife executed jointly a will in wbicb tbe land in controversy was devised to several children of tbe said Hiram Ginn and wife, and in wbicb nothing was devised to tbe said Mary J. Ginn or to tbe said J. Hiram Ginn.</p> <p>After tbe death of tbe said J. Hiram Ginn tbe said Mary J. Ginn refused to abide by said will, repudiated tbe same, and contracted to sell tbe land devised therein to tbe defendant and has tendered bim a deed wbicb be has refused to accept, because, as be alleges, tbe plaintiff has no title.</p> <p>There was judgment in favor of tbe plaintiff, and tbe defendant excepted and appealed.</p>

Appeal by defendant from judgment in the recorder’s court of Har-nett County to the Superior Court and heard by Stacy, J., on motion to dismiss at November Term, 1916. His Honer dismissed the appeal and defendant excepted and appealed to the Supreme Court.

Cause beard on appeal from judgment of clerk of Superior Court of Chatham, before Cox, J., presiding and bolding tEe courts 'of tbe Fourth Judicial District, February 7-10, 1917.

<p>1. Parol Trusts — Lauds—Options—Deeds and Conveyances — Grantor.</p> <p>Where the plaintiff has been put to trouble and expense in securing an option to himself on lands of nonresident under parol agreement that he and the defendant were to buy them jointly, which option he assigns to the defendant, who subsequently, and without his knowledge, exercises his right and takes title to himself, and thereafter repeatedly promises to conform to his agreement and convey the plaintiff his part, which he since refused to do: Held, an option does not transfer title to the lands, and the plaintiff is entitled to enforce the parol trust in his favor, the principle that a grantor of lands cannot enforce a parol trust therein in his favor (Gaylord, v. Gaylord, 150 N. C., 222) not applying.</p> <p>2. Limitation of Actions — Parol Trusts — Deeds and Conveyances.</p> <p>This suit upon a parol agreement made in 1911, and brought in 1916, to enforce a parol trust in land thereunder is held not to be barred by the statute of limitations.</p>

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

Special pboceediNG, beard by Whedbee, J., upon the report of Junius D. Grimes, Esq., referee, at May Term, 1916, of Pitt. Tbe proceeding was brought for the purpose of establishing a drainage district, and on 7 April, 1914, a petition was filed before the •clerk for the establishment of such a district along Little Contentnea Creek.

<p>Civil action-, tried before Lyon, J., and a jury, at October Term, 1916, of Pamlico. Tbe following verdict was rendered:</p> <p>1. Did tbe defendant Asa W. Lee cause tbe arrest and prosecution of tbe plaintiff Cburcb B. Holton, as alleged? Answer: “Yes.”</p> <p>2. Was tbe same done without probable cause? Answer: “Yes.”</p> <p>3. Was tbe same done without malice? Answer: “Yes.”</p> <p>4. Has tbe criminal action terminated? Answer: “Yes.”</p> <p>5. What damage, if any, has plaintiff sustained thereby ? Answer: “$600.”</p> <p>Defendant appealed from tbe judgment thereon.</p>

<p>Carriers of Goods — Order, Notify — Care of Another Carrier — Officious Transportation — Penalty Statutes — Appeal and Error.</p> <p>Where a carrier by water transports a shipment past its destination under an “order, notify” bill of lading, “care of” A., etc., railroad operating at that point, and delivers it to another railroad, N., etc., the latter company should deliver the cotton to the consignor upon demand and exhibition of the bill of lading (Myers v. R. R., 171 N. C., 193); and when it refuses to do so, but carries it to the original destination at additional charges for carriage, which the consignor has been obliged to pay, he may recover, of the carriers thus acting, the additional charges so paid; and a judgment a's of nonsuit should not be granted.</p>

Civil actioN to recover value or damage for tbe loss of two shipments of goods over defendant railroad, consigned to plaintiff, tbe owner, at Washington, N. C., tried before Lyon, J., and a jury, at September Term, 1916, of Pitt.

Civil action, tried before Lyon, J., at October Term, 1916, of CRAVEN. This is an action, to recover damages for personal injury caused by falling in boiling water, which had escaped from a steam pipe which burst in a mill of the defendant, and at the close of the testimony the defendant moved for a judgment of nonsuit, which was refused, and the defendant excepted.

ActioN to enjoin an annual assessment of $1,992.50 each year for five years made against plaintiff’s timber by defendants. Tfie cause was beard by Lyon, J., at November Term, 1916, of Craven, upon an agreed state of facts. His Honor field that tfie assessment was valid and came witfiin tfie terms of tfie drainage laws, and dissolved the injunction. Plaintiff appealed.

<p>Civil actioN to remove a cloud from plaintiff’s title, heard on facts admitted in tbe pleadings before Lyon, J., at November Term, 1916, of Pitt.</p> <p>• There was judgment for plaintiff, and defendants excepted and appealed.</p>

<p>1. Jurors — Talesmen—Selection — Call from Outside — Sheriffs — Courts — Statutes.</p> <p>The primary duty of selecting tales jurors for the trial of a cause is with sheriffs, and their deputies acting for them, under the control and supervision of the court; permitting these executive officers so acting to go outside for the purpose or notify them in advance when such course is best promotive of the ends of justice. Revisal, sec. 1967.</p> <p>2. Jurors — Sheriffs—Relationship to Parties — Interest.</p> <p>Whenever it is made to appear that the Sheriff has an interest, direct or indirect, in the cause of action for the trial of which tales jurors are to be called, or bears such a relation to the parties thereto as to render him an improper or unsuitable person to perform this duty, the court may designate another for the purpose. Revisal, sec. 1968.</p> <p>3. Same — Appeal and Error — Objections and Exceptions — Laches — New Trials — Impartial Panel.</p> <p>Where objection has been made to the sheriffs calling in tales jurors for the trial of a cause on the grounds that he is a cousin of one of the parties, and that the action involved title to lands, which his brother had warranted, and the court designates his deputy for the purpose, who reads the names of jurors from a list, informing counsel, in reply to his question ,that he, the deputy, has made it; and the jury being selected, the trial proceeds to verdict,"after which the sheriff, in the presence of the court, counsel, and parties, states that he had made the list of jurors, whereupon the injured party insists upon his right to an impartial panel, it is Held, under the facts stated, he was not guilty of laches, and his motion to set aside the verdict, and for a new trial, should be sustained as a matter of right. S’. v. Maultshy, 130 N. C., 664, cited and distinguished.</p>

<p>Civil actioN, tried before Stacy, J., at January Term, 1917, of Pitt.</p> <p>This is an action to recover damages for malicious prosecution, tbe evidence tending to prove tbe following facts: Tbe plaintiff was living on bis wife’s land in Pitt County, and went to Pollard & Co. to obtain advancements for tbe year 1910 to tbe amount of $400. In accordance witb tbe agreement made, Bowen executed a crop lien to Pollard & Co. on 25 January, 1910. About five weeks thereafter tbe defendant Pollard approached tbe plaintiff and requested, as tbe title to tbe land bad been found to be in plaintiff’s wife, that plaintiff and bis wife sign tbe crop lien. This tbe plaintiff agreed to do, and in accordance witb tbe desire of Pollard & Co., plaintiff and wife executed a new crop lien to tbe said defendants. At tbe time this was done, Mrs. Bowen, wife of tbe plaintiff, refused at first to sign unless one-third of tbe crop was excepted, as she was in debt for tbe land. Finally it was agreed that 5 acres should be excepted, and tbe exception of “5 acres in tobacco” was written in tbe mortgage.</p> <p>Mrs: Bowen planted peas in tbe tobacco when it was laid by.</p> <p>There is no definite evidence in tbe record as to bow much tbe account of tbe Bowens amounted to for tbe year, but it was about $600.</p> <p>. Tbe plaintiff introduced in evidence receipts to tbe amount of $590, which were admitted to be correct.</p> <p>When tbe harvesting season came on Pollard & Co. received all of tbe plaintiff’s crop and certain personal property.</p> <p>This cause of action grew out of tbe efforts of Pollard & Co. to obtain tbe bay raised on Mrs. Bowen’s 5 acres of tobacco excepted in tbe crop lien. They began an action against tbe plaintiff and bis wife for tbe bay before a magistrate of Earmville Township, in which action papers in claim and delivery were issued.</p> <p>When tbe claim and delivery papers were served upon tbe Bowens, tbe, bay was not actually seized, but remained in tbe yard of plaintiff Bowen, witb a statement of tbe officer not to move it before trial. An examination of tbe officer’s return upon tbe fiat, in tbe record, shows that the officer states “The defendant having executed a good and sufficient undertaking as required bylaw, the said property was delivered back to the defendant.’”</p> <p>After the trial the hay in question remained in the stack in the yard for several weeks, exposed to the weather and the depredations of stock, until finally Mrs. Bowen had her boys remove it and placed it under shelter. She then used up about 300 pounds of the hay in feeding the team; but plaintiff testifies he had nothing whatever to do with this or the removal of the hay.</p> <p>Some time after this the defendant Flanagan went to the home of the plaintiff and asked for the hay. He was the constable of Farm-ville Township and the one who served the claim and delivery papers. According to his statement, there was as much as 1,000 pounds of the hay used, and he demanded pay for it, and says that Bowen promised to pay $5 for what was used, and that Bowen did not do what was promised; that he told Pollard about this, and Pollard said that $5 would be all right. Flanagan further states that he informed Pollard that the $5 was not paid.</p> <p>Immediately afterwards Flanagan swore out the criminal warrant. . Before the arrest Flanagan resigned and Bowling took his place, and made the arrest.</p> <p>The new constable arrested Bowen and carried him under custody to Farmville. Upon arriving there, Bowen was taken to the store of Pollard & Co., and Pollard offered, upon the payment of $10 for the hay, to let Bowen go. Bowen did not have the money, and he was put in the town guardhouse for the night. The next morning he was taken out and tried before R. E. Belcher, a brother-in-law of the defendant Flanagan. At this trial Bowen was bound over to the Superior Court under $200 bond. Bowen endeavored to get the constable to carry him by the home of one Bill Elks, who lives on one of the roads running from Farmville to Greenville, where Bowen could have given bond, but the constable would not do this. The plaintiff was put back in the guardhouse and kept all that day and night, and was carried to Green-ville next day.</p> <p>After the trial of the case before the magistrate, Bowen was again carried to Pollard, and he asked Pollard to stand his bond. This Pollard refused to do, with a statement that he would not stand his bond after prosecuting him for the hay.</p> <p>When the case was brought to trial in the Superior Court, the grand jury found a true bill, but upon the trial the presiding judge directed a verdict of not guilty.</p> <p>It is in evidence that the defendants Pollard & Co. never advertised and sold the produce and chattels taken from the plaintiff, as required by law, but credited them at the price fixed by themselves.</p> <p>There was other evidence, which is referred to in the opinion.</p> <p>At the conclusion of the evidence his Honor entered judgment of non-suit, and the plaintiff excepted and appealed.</p>

<p>1. Master and Servant — Dangerous Employment — Negligence—Assumption of Bisks.</p> <p>The fact that an employee engaged in helping to load a skidder on defendant’s train, in the course of his employment, was aware of the danger of such work does not preclude his recovery for an injury resulting from the negligent and unexpected movement of the train, without the signal or warning customarily given under the circumstances.The instructions of this case upon the questions of negligence and proximate cause approved. Pritchard v. 'R. R., 157 N. C., 102; Mule Oo. v. R. R. 160 N. C., 221.</p> <p>2. Damages — Evidence—Mortuary Tables.</p> <p>In. an action to recover damages for a personal injury, the expectation of life tables, Revisal, 1626, are, not conclusive, hut merely evidential on the issue as to damages.</p> <p>' 3. Master and Servant — Negligence—Scope of Employment — Orders—Yol-unteer.</p> <p>The plaintiff, an employee of the defendant, while engaged, in the course of his employment, in loading a skidder upon a logging train, attempted to get a chisel for his superior, under his order, and was injured by the negligent movement of the train without signal or warning. Held, he was not a volunteer in so acting; and, if otherwise, the defendant had no right to negligently injure him.</p> <p>4. Appeal and Error — Newly Discovered Evidence — Opinion—Discussion.</p> <p>Upon motion in the 'Supreme Court to set aside the judgment appealed from for newly discovered evidence, the Court will grant or refuse the motion without discussion. Johnson v. B. B., 163 N. C., 453, cited as decisive of this appeal.</p> <p>Allek, J., dissenting; Walker, J., concurring in dissent.</p>

<p>Appeal by defendants from Lyon, J., January Term, 1917, of DUPLIN.</p>

Civil actioh, from Caldwell, beard by Cline, at Chambers, in January, 1917, upon a motion for an injunction. The plaintiff sued on behalf of himself and all other taxpayers of the town of Lenoir, similarly situated, who will come in and make themselves parties.

<p>Civil actioN from Caldwell, beard upon case agreed before Webb, Jat Chambers, 13 Eebruary, 1917.</p> <p>Tbis is a controversy without action between tbe board of commissioners for tbe county of Caldwell and tbe defendant Sidney Spitzer & Co., to determine tbe validity o'f bonds issued by authority of an act of tbe General Assembly, ratified 9 January, 1917. By that act tbe said commissioners were empowered to issue bonds, among other things, for the purpose “of securing site for and building a new county home for said county.” These bonds were directed to be issued without a vote of the people. The defendant made a proposition for the purchase of the said bonds which the plaintiff board accepted. This proposition was made dependent upon the legality of the issue. Defendant, under the advice of its attorney, declined to complete the purchase, upon the ground that the said bonds to be issued under said act, $12,-000 in amount, were not for a necessary expense of the said county, and that, therefore, a majority of the qualified voters of Caldwell County were required to sanction the issue to make said bonds legal under the provisions of Article VII, section 7, of the Constitution of North Carolina. The only question presented is the one as to whether the procuring a site for and building a new county home is a necessary expense of the county of Caldwell.</p> <p>Judgment was rendered in favor of the plaintiff, declaring said bonds valid and adjudging the recovery of the purchase price thereof, and the defendant excepted and appealed. ■</p>

Civil ACTION, tried before Cline, J., at Spring Term, 1915, of SwaiN. This is an action to recover land, both parties claiming title under Lee Fuller. On 28 January, 1896, Lee Fuller executed a deed to II. T. Jenkins purporting to convey said land to him in fee.

Cira, aotioN, tried before Whedbee, J., at November Term, 1916, of Camden. Tbis is an action to recover a lot of land known as lot No. 7 of tbe New Lebanon Estate, tbe plaintiffs being tbe beirs of Hollowell Old -and Wiley McPberson.

Civil actioN, tried before Stacy, /., and a jury, at July Term, 1916, of Lee.

Civil actioN, tried before Bond, J., and a jury, at January Special Term, 1917, of Lee. This is a caveat to the will of M. C. Talbert, which was executed 1 September, 1916. Issues were submitted to the jury and answered,, as follows: 1. Was the paper-writing propounded, dated 1 September, 1916, executed by M. 0. Talbert according to the formalities of law required to make a valid last will and testament? 2.

Civil actioN, tried at November Term, 1916, of GraveN, before Lyon, J., upon these issues: 1. Was plaintiff injured by the negligence of the defendant, as alleged in the complaint ? Answer: “Yes.” 2. Did.the plaintiff, by bis own negligence, contribute to bis injury? Answer: “No.” 3. What damage is plaintiff entitled to recover? Answer: “$310.30.” From the judgment rendered, defendant appealed.

Civil actioN, beard before Lyon, J., and a jury, at November Term, 1916, of Pitt. Issues were submitted, and the jury having failed to agree upon a verdict, they were discharged from further consideration of the case, and thereupon, on motion, his Honor gave judgment for plaintiff on facts as admitted in the pleadings, and defendant, the bank, excepted and appealed.

Civil aotioN, tried at November Term, 1916, of ObaveN, before Lyon, J. The court sustained a motion to nonsuit plaintiff on its cause of action and directed a verdict for the Fort Barnwell Company on its counterclaim. From the judgment rendered, the plaintiff appealed.

Civil actioN, tried before Lyon, J., at February Term, 1917, of SAMPSON. This is a controversy submitted without action. Mary J. Darden, wbo was the owner of the land in controversy, died without issue, leaving a will, which has been duly probated and recorded, the material parts of which are as follows: “Second.

Civil ACTION, tried at January Special Term, 1917, of SampsoN, before Whedbee, J., upon these issues: 1. What amount, if anything, is the plaintiff entitled to recover of the defendant, J. Erank Wooten? Answer: “$100, with 6 per cent interest from 15 July, 1914.” 2. Did the defendant J. H. Pugh contract and agree to sell and convey to the plaintiff the timber, rights, and privileges for the sum of $6,000, as alleged in the complaint, upon the lands described in the complaint?

<p>1. Corporations — Evidence of Incorporation.</p> <p>Testimony of a witness to the fact of incorporation of a party to the action is prima facie evidence of such fact, and sufficient.</p> <p>2. Evidence — Depositions—Objections—Trials—Incorporations.</p> <p>Where a witness in his depositions has testified to the fact of incorporation of a party, evidence thereof may not for the first time be objected to on the trial, when the depositions have theretofore remained in the clerk’s office a sufficient time for the purpose.</p> <p>So Bills and Notes — Negotiable Instruments — Presumptions—Statutes—Due Course — Equities.</p> <p>The admission by the maker of a promissory note that it had been indorsed to the plaintiff in due course raises the presumption prima facie that he is a holder in due course, acquired the instrument before maturity, without notice of any equity; that he is the owner and is entitled to sue thereon (Pell’s Rev., secs. 2201, 2208); and the prima facie case is not rebutted by a denial in the pleadings.</p>

Civil actioN, tried before Connor, J., and a jury, at June Term, 1916, of Waue, and brought for the recovery of damages for the wrongful death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence in failing to keep one of its streets in a reasonably safe condition.

<p>1. Wills — Interpretation.</p> <p>A will should be interpreted from the perusal of the entire instrument, giving meaning, when possible, to the words or expressions therein used to ascertain and effectuate the testator’s intent, having reference to those who are evidently the objects of his care, when the language of the will indicates them.</p> <p>2. Same — “Children”—Successive Survivorships — Termination.</p> <p>Where a will appears to have been written by one unfamiliar with technical language and the meaning of legal expressions, who used throughout the words “children,” “heirs of the body,” etc., indiscriminately and with reference to both real and personal property, and devises a part of his real property, after a life estate to his wife, to certain of his children, “and if any of my children before mentioned shall die without heirs lawfully begotten of their body -them surviving, then the legacies herein given shall revert hack to the survivor or survivors of my children and the lawfully begotten heirs of them surviving forever”: Held, the intent of the testator will be construed as a devise to his children and the grandchildren, coming within its terms, by successive sur-vivorship, determined with reference to the death of the testator’s children, and not that of his own death, his living and named children taking absolutely, subject only to he defeated in the event any of such children die without children. ,</p> <p>3. Same — Deeds and Conveyances — Quitclaim—Title.</p> <p>Under a devise of lands to the testator’s daughter, but shall she die without children the estate should revert to her sisters and living children, and the daughter has conveyed the land to another and since died without leaving living children, etc., a quitclaim deed to the land made by the contingent remaindermen to the same grantee, of all “right, title, and interest, estate, claim, and demand, both in law and equity, as well in possession as in expectancy,” is sufficient to pass tbeir title to the purchaser. Beacon v. Amos, 161 N. C., 367, etc., cited as controlling.</p>

Appeal by respondent guardian from Bond, J., at October Term, 1916, of WaKE. Tbis proceeding was begun before tbe clerk, whose decision was affirmed in tbe Superior Court upon appeal.

Appeal by plaintiffs from Bond, J., at August Term, 1916, of Fraisk-LIN. Tbis is an action by tbe heirs at law and the administrator of Ellis Alston under a contract to convey a certain tract of land dated 1 April, 1909, at the price of $1,250, of which $190 was paid in cash.

<p>Civil action, tried before Bond, J., and a jury, at October Term, 1916, of Wake.</p> <p>The action was brought to obtain equitable relief against a transaction in which plaintiff alleged that the defendant had induced him to part with the possession of a deed for an interest in land upon a false and fraudulent promise to pay at once the consideration therefor which was mentioned in the deed. The allegation is that plaintiff was to buy the land from Eunice Dunn, the owner thereof, and pay the entire purchase price to her, and convey one-half interest in the same to defendant, upon his promise to pay immediately in cash to plaintiff his share of the purchase money. That he obtained the deed upon this promise, fraudulently intending at the time not to pay for the same, and there is some evidence of an additional representation, viz.,^ that there was something wrong with the deed and that he pretended to want the deed for the purpose of correction, whereas his real intention and design were to get possession of it in order to record it, and thereby vest the title in him without paying for the land or performing the promise by reason of which he procured it. Issues were submitted to the jury and an-swéred as follows:</p> <p>“1. Did Henry Massey pay $150 for land described in complaint and was an undivided half interest in the land conveyed to Lewis Alston by Eunice Dunn upon an agreement between said Alston and plaintiff Massey that if said conveyance should be so made the said Alston would at once pay to plaintiff Massey the sum of $75 as alleged in the complaint ? Answer: “Yes.”</p> <p>2. What part, if any, of said $75 and interest has been paid by defendant Alston to plaintiff Massey? Answer: “No part; nothing.”</p> <p>3. Was it agreed at any time between plaintiff Massey and defendant Alston that said property should become and be a part of the partnership property to be owned by a partnership existing between said Massey and said Alston? Answer: “Yes.”</p> <p>4. Did the defendant Lewis Alston procure title to an undivided half interest of said lot without paying for same, and fraudulently intending at the time not to pay for it ? Answer: “Yes.”</p> <p>The court gave judgment for the plaintiff, declaring the amount of the purchase money agreed to be paid by defendant to be a lien on the land and decreed a sale thereof to pay it, and ordered an account to be taken of the partnership. Defendant appealed.</p>

Civil actioN, tried before Bond, J., at October Term, 1916, of Wake. This is .an action to recover the value of an alleged shortage of 81 acres of land in a voluntary partition between the plaintiff and the defendant as tenants in common, tried on the following agreed statement facts: The mother of the plaintiff and the feme defendant owned the land at the time of her death. She devised it to the plaintiff and the feme defendant, to be equally divided between them.

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

<p>Civil actioh, tried before Winston, J., and a jury, at September Term, 1916, of CumbeklaND.</p> <p>The action was brought to recover the amount of a promissory note made by the defendant to the plaintiffs 25 March, 1915, for $2,100, due sixty days after date. Plaintiff introduced the note in evidence and then rested. Defendant alleged that the note was given for margins upon what is known as “futures” or contracts in the form of sale of cotton to be delivered in the future, when there was no real intention to deliver the cotton, but merely to settle them by paying the differences in prices according to the rise or fall in the market. There was evidence tending to show that the original note w.as given for such margins and renewed from time to time. The jury returned the following verdict:</p> <p>1. At the time of the alleged indebtedness to Orvis Bros. & Co. by the defendant, and at the time of the execution of the note sued on, was the defendant Holt-Morgan Mills engaged in the ordinary course of its business in the manuacture of cotton? Answer. “Yes.”</p> <p>2. Is the defendant indebted tó the plaintiff; and, if so, in what sum? Answer: “$2,100 .and interest from 25 March, 1915.”</p> <p>3. Was the note in question based' on a contract for cotton on margins and without any intention of the contracting parties to deliver or receive the actual cotton? Answer: “No.”</p> <p>Judgment for the plaintiff, and appeal by defendant.</p>

Appeal by defendant from Gomior, J., at November Term, 1916, of PENDER. This action was begun before the clerk of the Superior Court of Pender for the purpose of establishing a disputed boundary line in the nature of processioning proceedings.

<p>CONTROVERSY without action, submitted to Cline, J., at December Term, 1916, of Union.</p> <p>His Honor rendered judgment in favor of plaintiffs, and defendant appealed.</p>

Civil aotioN to recover damages for breach of contract to sell land, tried before Stacy, J., and a jury, at September Term, 1916, of HaRNETT. On denial of liability, the jury rendered the following verdict on issues as to defendant McPhail: 1. Did tbe defendant contract and agree to sell tbe said land in question to tbe plaintiff, as alleged in tbe complaint? Auswer: “Yes.” 2.

<p>Telegraphs — Commerce—Federal Control — Federal Decisions — TJnrepeated Messages — Extra Charge.</p> <p>The amendment hy Congress passed in 1910 to the Federal Employers’ Liability Act subjects interstate messages by telegraph to the provisions of that act, requiring that charges therefor shall be reasonable, classifying them into day, night, repeated, unrepeated messages, etc., and permitting different rates to be charged for the different classes of messages. Held, Congress having assumed entire control of interstate messages, the decisions of the Federal courts are controlling, and thereunder a stipulation on the message blank that no recovery can be had beyond the toll paid for the message, unless repeated upon the payment of an extra charge, is valid and enforcible, when suit is brought upon the contract, in the courts of this State.</p>

Civil actioN, beard on demurrer to answer and by consent before Bond, J., in Fbanklin County, 28 September, 1916.

Civil actiow pending in Superior Court of Wake County and heard at October Term, 1916, by Bond, J., upon motion to continue injunction to final hearing.

Civil action, tried before Connor, J., at February Term, 1917, of CUMBERLAND. This is an. action commenced before tbe recorder’s court of Cumberland County in the name of S. D. Scudder, receiver of the Fourth National Bank of Fayetteville, N. C., against John L. Smith. Judgment was rendered in the recorder’s court in favor of the defendant, and the plaintiff appealed to the Supreme Court.

Civil actioN, heard at December Term, 1916, of New Hakoveb before Connor, J.; upon complaint and demurrer. The demurrer was sustained, and the plaintiff electing to stand upon its complaint, it was further ordered that the action be dismissed. The plaintiff appealed.

<p>1. liens — Buildings—loans—Resulting Trusts — Husband and Wife.</p> <p>Tbe loan of money by a wife to ber husband and used by bim in building a bouse upon bis own land does not, in tbe absence of contract or statute, give tbe wife a lien upon tbe bouse or tbe land for its repayment, or create a resulting trust in ber favor.</p> <p>3. liens — Commingling of Goods — Husband and Wife — Equity.</p> <p>Where tbe wife has permitted tbe husband to use ber money indiscriminately with bis own in erecting a building on bis own land, so that tbe amount may not be ascertained, tbe doctrine of tbe admixture of goods would prevent her acquiring a lien for its repayment, were she otherwise entitled to it.</p>

Civil actioN, tried before Connor, J., at November Term, 1916, of New Haktover. This is a civil action begun 25 May, 1916, by summons issued from the recorder’s court of New Hanover County at the instance of the plaintiff, to recover money alleged to be due him by the defendant for labor performed.

Civil actioN, tried before Connor, J., at September Term, 1916, of PENDER. 'This is an action to recover land. Tbe plaintiffs are the heirs at law of Matthew Jacobs and claim title by adverse possession.

<p>Appeal by defendant from Goolce, J., at October Term, 1916, from PERSON.</p> <p>This is an appeal from the judgment of the Superior Court allowing the plaintiff alimony pendente lite and counsel fees, in ,an action for divorce from bed and board. The action was begun 18 September, 1916, the summons being returnable to October Term of Person, 1916, which began on 16 October. The complaint was filed Saturday, 14 October. On "Wednesday of October Term the plaintiff moved in open court for an allowance for .alimony pendente lite and counsel fees in accordance with the request in the complaint. The defendant in open court resisted the motion. The court postponed the hearing till the next evening, Thursday, 21 October, when, court being about to adjourn, he heard the motion and found the following facts upon the complaint and answer used as affidavits, and such other evidence as was offered:</p> <p>That the plaintiff .and defendant were married in October, 1911, and have two children, aged 3% and 1% years, respectively; that the defendant has offered such indignities to the person of the plaintiff as to make her condition intolerable and her life burdensome; that in August, 1916, the defendant abandoned the plaintiff and caused her to leave his home; that in 1914 he tried to get the plaintiff to release her right in his property and make him free, in consideration of $1,000 and became greatly enraged because she did not do so; that in 1913 the defendant said to the plaintiff'that “when he got his business straight and like he wanted it, the plaintiff could take the cook and go to hell, or walk up and down the big road and eat flint-rocks, as far as he cared”; that he often left the plaintiff for three or four days during the week and refused her request for a pistol for protection during his absence; that he drank a great deal of whiskey and in November, 1914, he accused the plaintiff of taking a quart of his whiskey, which he-later found in his auto, but did not apologize;-that in 1914 the defendant repeatedly stayed out two or three nights in the week until 4 o’clock in the morning, and in November of that year he moved a negro woman and her children into a house in the yard, and boasted to the plaintiff the woman’s boy was his son; that the negro woman and her children annoyed the plaintiff by taking her wood, and were insolent to her, and that when the plaintiff complained the defendant upheld the negro woman and abused the plaintiff, and upon the plaintiff’s saying that she could not stand such conditions any longer, and would have to go home, the defendant told her she “could take her choice”; that under such conditions, her health becoming impaired and fearing for her personal safety, she went to her father’s; that about three weeks thereafter the defendant went to her, asking her to return, and promised that he would not mistreat her again and would send the negro woman away, and under the circumstances and relying upon such promise she returned with the defendant, who did get rid of the negro woman, but in a day or two began to abuse the plaintiff, insisting that she should sign papers releasing all her interest in his property and give him a divorce, and upon her refusal he became greatly enraged and told the plaintiff she could “go to-and eat flint-rocks, for all he cared”; that he unnecessarily required her to do'an unusual amount of work just prior to Christmas, 1914 (when she was in a pregnant condition), in regard to hog killing, and though she did all she could, the defendant told her if she “did not attend to business what - did he want with her there”; that when the plaintiff had finished the work of trying up the lard besides doing the cooking and looking after the house while she was in an exhausted condition therefrom the defendant brought a drunken companion home with him late on Christmas eve and made the. plaintiff late at night cook an oyster supper for them, though she had already cooked supper for the family; that the defendant was often gone a week at a time without letting plaintiff know his whereabouts, without having any one at home for her protection; that in May, 1916, the defendant told the plaintiff he was “going to sell everything and was not going to be bothered with women and children; that he had enough to take care of himself, and did not expect to hit a lick of work for any one,” and often repeated this to the plaintiff; that in August, 1916, he came to plaintiff’s father’s about 2 o’clock at night and carried her home, reaching there about 4 o’clock in the morning, whereupon the defendant himself retired to bed, but put the plaintiff to work preparing breakfast and supply of bread to last his hands three days; that in August, 1916, the- defendant took the oldest child from plaintiff’s arms, and struck the plaintiff on her breast, knocking her against the sewing machine, which, blow left finger prints and bruises on the plaintiff for several days; that he charged the plaintiff with adultery with one Loman, which charge the court finds was. untrue and without foundation; that the defendant took both the children away and carried them to his father’s house in Virginia; that he was often drunk and used personal violence and foul language to her.</p> <p>The judge finds that the plaintiff during her married life had been a good, kind, dutiful wife, and has performed faithfully her household duties, and has often been required, in addition to cooking, washing, ironing, cleaning the house, and attending to the children, to work in the garden, and carry slops to the hogs a quarter of a mile distant; that the plaintiff gave the defendant no cause of provocation for his cruel and unjust conduct or for the indignities he has heaped upon her, and that she was put in bodily fear of the defendant and her life rendered intolerable and burdensome, and that the plaintiff by reason of defendant’s false accusations against her and his violence is unable to endure living further with him.</p> <p>The judge also finds that the 'defendant is a man of good health and strength, 4/1 years of age, of good earning capacity, and is worth from $18,000 to $20,000, and owns, according to admission of his counsel in open court, 538 acres of land; that the defendant for the last'two years has greatly neglected his farm and other business; that the net annual income of the defendant, with proper attention to business, is reasonably $2,000 per year; that the plaintiff has no separate estate, is worth no property, and has no means of subsistence during the pendency of litigation or to pay for the prosecution of this action; that the defendant removed the children from the jurisdiction of this State and carried them to Virginia, where they now are, and that the plaintiff is entitled to the custody of said children.</p> <p>Upon finding the foregoing facts and others of like nature, the judge awarded the custody of the two children to plaintiff and adjudged that the defendant should in thirty days pay to the plaintiff or into court the sum of $150, to enable her to prosecute this action, and that he should pay her or into court for her benefit $50 per month alimony, to begin on the day of the order .and $15 per month for the support of said children, to begin when they are placed in her custody.</p> <p>The defendant excepted and appealed.</p>

<p>Civil aotioN, tried at January Term, 1917, Waiie, before Devin, J.</p> <p>A jury trial being waived, the court found the facts and rendered judgment as follows: “That the defendant Will Taylor, as surviving partner and individually, is indebted to the plaintiff in the sum of $3,676.59, witb interest tbereon from 25 February, 1916, until paid, and also for the promissory notes described in the complaint, and being those set out in the final report of Will Taylor, surviving partner of the said firm of Will Taylor & Co., field in the office of the clerk of the Superior Court of Wake County, N. C., on 25 February, 1916, and which is recorded in Docket %’ page 271, in said office.”</p> <p>From this judgment, defendant appealed.</p>

Civil actioN, tried before Winston, and a jury, at November Term, 1916, of RobesoN. The .action was brought by plaintiff against R. E. Lewis, sheriff of Robeson County, C. T. Pate & Co. and C. T. Pate, to recover the $725, the amount bid by O. T. Pate, acting for the firm of 0. T. Pate & Co., of which he was a member, at a sale under the execution hereinafter described. The material and undisputed facts are as follows: 1.

<p>Appeal by tbe National Bank óf Fayetteville from an order allowing the claim of the Carolina Power and Light Company in the sum of $4,264.42, made by Winston, J., at November Term, 1916, of CUMBERLAND.</p>

<p>Civir. ACTION, heard on exceptions to report of referee before Connor, J., at February Term, 1917, of Cumberland.</p> <p>The question presented was on the right of Odell Hardware Company to a lien by docketed judgment on the real property of the defendant mills as against the receiver, appointed for said mills by order of the court duly entered. The relevant facts sufficiently appear in certain findings by the referee, as follows:</p> <p>“First. That the summons was duly issued and served upon the defendant, and verified complaint filed at the return term, November Term, 1915, of Cumberland Superior Court.</p> <p>“Second. That judgment was not taken at stick. term for the reason that at the request of the defendant or its counsel the cause was continued from term to term until March Term, 1916, in order that the officers and directors might use their best efforts to effect reorganization of the Holt-Morgan Mills, in which efforts the plaintiff and its counsel coojierated.</p> <p>“Third. That the March Term, 1916, a civil term of court, expired by limitation on 1 April, 1916.</p> <p>“Fourth. The efforts to effect a reorganization of the Holt-Morgan Mills haying failed in their object, H. L. Cook, Esq., attorney for the Odell Hardware Company, plaintiff herein, and Hon. John G. Shaw, president and attorney of the Holt-Morgan Mills, on 12 April, 1916, went to Lumberton, N. C., and appeared before his Honor, F. A. Daniels, judge holding the courts of the Ninth Judicial District, who was then presiding at a regular term of Robeson Superior Court.</p> <p>“Fifth. That on the morning of '12 April, 1916, Judge Daniels signed a judgment for the plaintiff in full of the indebtedness and interest, a copy of the judgment being hereto attached as a part of this finding, and marked Exhibit ‘A.’</p> <p>“Sixth. That while in Lumberton, N. C., Hon. John G. Shaw, president and attorney of the Holt-Morgan Mills, prepared and filed an answer, admitting the allegations of the complaint, as appears of record in this action.</p> <p>“Seventh. That some time during the .afternoon of 12 April, 1916, an order was prepared and signed by Judge Daniels, at Lumberton, N. 0., placing the Holt-Morgan Mills, the defendant, in the‘hands of S. W. Cooper, John G. Shaw, and 0. 0. McAlister, as receivers, and requiring, among other things, that each of the receivers file a bond with the clerk of the Superior Court of Cumberland County in the sum of $5,000, to be approved by said clerk (see copy marked Exhibit 'B.’)</p> <p>“Eighth. That immediately upon the return of IT. L. Cook, Esq., and Hon. John G. Shaw to Fayetteville, on said 12 April, 1916, the judgment for the debt (Exhibit 'A’) was filed with the clerk of the Superior Court of Cumberland County, and was by him recorded in the minutes of March Term, 1916, as if actually rendered at said term.</p> <p>“Ninth. That Hon. John G. Shaw, representing the Holt-Morgan ' Mills, consented to the judgment being rendered 'as of March Term, 1916,’ as appears by his written consent on the original judgment in the files.</p> <p>“Tenth. That said judgment (Exhibit 'A’) was by the clerk of the Superior Court of Cumberland County immediately docketed on his judgment docket on 12 April, 1916, as Judgment Roll No. 15333, between a judgment docketed 11 April, 1916, and another docketed 14 April, 1916.</p> <p>“Twelfth. That on 14 April, 1916, the order appointing the receivers was filed with the clerk, and at the same time the said receivers each filed a bond with said clerk, each of which was on said date approved, and the receivers duly qualified, as required in the order of appointment.”</p> <p>Upon these findings the referee held, as a coneulsion of law, that plaintiff acquired no lien by reason of the docketed judgment as against the receiver representing general ceditors, and this conclusion having been affirmed by the court, judgment was so entered, and plaintiff excepted and appealed.</p>

Civil aotioN, tried at October Term, 1916, of CUMBERLAND, before Winston, J. The action is brought to recover damages for burning plaintiff’s lumber and part of its mill plant, alleged to have been caused by the negligence of defendant in carelessly permitting fire to escape from its engine. At the conclusion of the evidence a motion to nonsuit was sustained, and plaintiff appealed.

Motioet to set aside a judgment, beard by Kerr, J., at December Term, 1916, of RobesoN. Held: That it had no power to interfere with the judgment of December Term, 1914, signed by Judge Cooke. (2) That the facts found by him from the evidence do not constitute excusable neglect. (3) That defendants are not entitled to have the judgment set aside. The motion of defendants was, therefore, denied, and defendants excepted.

Civil action to recover a piano on wbicb plaintiff teld a chattel mortgage, executed by tbe defendant to secure a debt of $153, due September, 1914, beard on appeal from recorder’s court before Bond, J., at February Term, 1917, of New Haetover. On tbe bearing tbe relevant facts agreed upon by tbe parties were as follows: 1. L. E. Sandlin, defendant, is a married man residing witb bis wife and daughters. 2.

Civil action^ tried before 'Winston, J., at September Term, 1916, of CUMBERLAND. This is an action by the heirs of N. W. Ray to recover land. The defendants filed an answer in which they allege that the deed to N. W. Ray under which the plaintiffs claim was executed as a security for a debt of $25, and they tender that sum, with interest from the date of the deed. The jury returned the following verdict: 1.

Civil actioN to recover damages for death of plaintiff’s intestate, caused by alleged negligence of defendant’s employees, tried before Daniels, J., and a jury, at November Term, 1916, of Duuham. There was evidence on part of plaintiff tending to show that in the fall of 1915 defendant was having a dwelling-house built in said county by bis own employees and under tbe supervision and direction of W. C. Gibson.

Civil action-, tried before Starbuclc, J., in Forsyti-i County Court, and iudgment for defendant afterwards affirmed in tire Superior Court at September Term. 1916, Long, J., presiding. Tbe action was brought to recover the penalty of $200, allowed by Revisal, secs. 2088 and 2090, for issuing a marriage license contrary to tbe provisions of those sections.

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

PROCEEDINGS in mandamus, beard by 'Harding, J., at chambers, in the city of Winston-Salem, E'orstti-i County, on 13 March, 1917. His Honor dismissed the proceedings and the plaintiff appealed.

<p>Civil actioN, tried before 0. II. Allen, at November Term, 1916, of EDGECOMBE.</p> <p>This is an action to recover four shares of stock, or the value thereof, bequeathed in item 12 of the will of Moses Baker, the plaintiffs being the next of kin referred to in said item, tried on the following agreed facts:</p> <p>1. Moses Baker died, in 1857, a resident of Edgecombe County, North Carolina. In August, 1857, his last will and testament, the material part of which is as follows:</p> <p>“Item 12th. I give and bequeath unto my grandsons, John Baker and Jesse Baker, negro man Ben and my ‘Ruffin tract of land.’ adjoining the lands of Samuel P. Jenkins, and containing about 200 acres; also two shares each of Wilmington and Raleigh railroad stock. If either of them shall die without issue, I give the share of the. one so dying in all property given or devised to them in this instrument to the survivor; and if both shall die, leaving no issue, then I give, devise, and bequeath the lands, slaves, and other property to their next of kin, in equal degree, who shall be of the issue of my body, except Naomi Armstrong, wife of Baker Armstrong, and her sister, Martha Ann Baker, it being intended that they or their issue shall under no circumstances inherit any portion of my estate, either directly or indirectly.”</p> <p>The executor therein named, William S. Baker, duly qualified and letters testamentary were duly issued to him.</p> <p>- 2. At the time the will became effective, Moses Baker, testator, held and owned nineteen (19) shares of stock, a portion of which was the stock referred to in paragraph 12 of the will, in the corporation, Wilmington and Baleigh Kailroad Company, whose name was by act of the North Carolina Legislature changed to Wilmington-and Weldon Kail-road Company on 14 February, 1885.</p> <p>3. On 13 November, 1851, William S. Baker, the duly appointed and qualified executor’ of the will of Moses Baker, as such executor, surrendered certificates for nineteen shares of stock then standing in the name of the testator on the books of the Wilmington and Weldon Kail-road Company, the then name of the company, and the said Wilmington and Weldon Railroad Company, at his request, issued new certificates, among which was one certificate for two (2) shares to John Baker and one certificate for two (2) shares to Jesse Baker.</p> <p>4. The John and Jesse Baker to whom such certificates were issued were the John and Jesse named as legatees in paragraph 12 of Moses Baker’s will. That Jesse Baker died in 1863 without issue.</p> <p>5. Thereafter, and on 12 January, 1866, the certificate for two (2) shares which had been issued to John Baker was delivered to the Wilmington and Weldon Kailroad Company by John Baker, and the certificate which had been issued to Jesse Baker for two shares was likewise delivered to the Wilmington and Weldon Kailroad Company, and the four (4) shares of stock were canceled on the books of the company and a new certificate or certificates therefor issued and delivered to one John I. Proctor.</p> <p>6. In 1900 the Wilmington and Weldon Railroad Company was merged in the Atlantic Coast Line Kailroad Company, defendant herein.</p> <p>7. That among the terms of the merger agreement are the following: On 21 April, 1900, by the merger agreement, on page 14, the Wliming-ton and Weldon Railroad Company conveyed to the Atlantic Coast Line Railroad Company all its property, rights, franchises, etc.; subject, however, to all existing liens thereon and all the liabilities of the said Wilmington and Weldon Railroad Company of every kind and nature.</p> <p>8. John Baker died in 1913, leaving no issue.</p> <p>9. Prior to the commencement of this action, plaintiffs demanded of defendant the certificates of stock above described, and any stock issued in lieu thereof, and all increment, rights, and property accruing thereto, and same has been refused. This action was commenced within one year after the death of John Baker.</p> <p>Judgment was entered in favor of the plaintiffs, and the defendant excepted and appealed.</p>

Civil actiow, tried before Winston, J., and a jury at October Term, 1916, of OuMberlaND. The action was to recover' the amount of an insurance policy for $1,000 issued by the company on James Holiday Owens, husband of administratrix.

and denying mandamus, rendered by Daniels, J., at chambers, in Durham, 15 December, 1916. This is an action to compel tbe defendant, former sheriff of Orange County, to turn over the tax lists of 1916 to Charles G. Rosemond, who was elected sheriff of said county in November, 1916.

Civil ACTION, tried November Term, 1916, of Dubham, before Daniels, J., upon these issues: 1. “Was the plaintiff injured by the negligence of the defendant as-alleged in the complaint?” which the jury answered “Tes.” 2. “Did the plaintiff, by his own negligence, contribute to his injury?” which the judge, by consent of both plaintiff and defendant, answered “No.” 3. “What amount, if any, is tbe plaintiff entitled to recover?” which the Jury answered “$3,000.” From the…

<p>1. Carriers of Goods — Connecting Lines — Carriers "by Water. — Negligence— Commerce — Federal Statutes — Loss of Vessel.</p> <p>Where loss or damage is caused an interstate shipment of goods hy a connecting carrier hy water in its designated or usual route of shipment, and suit is brought in the State court having jurisdiction of the parties and subject-matter to recover therefor against the initial carrier by rail, the defendant may avail itself of the defenses under the Federal statute (34 St. at Large, 594) limiting liability in case of carriers by water, where the same properly applies; and where it is shown on behalf of the defendant that ’the carrier by water undertook the transportation of the goods upon a seaworthy vessel, properly manned and equipped, and that the vessel with the cargo was an entire loss,.without privity or knowledge of the owner or owners, a recovery for such loss will be denied.</p> <p>2, Same — Verdict—Inconsistency—Interpretation.</p> <p>Held, on the present record, and having due regard to the pleadings, testimony, and charge, there is no such conflict in the issues as to prevent the defendant from securing his judgment on the verdict.</p>

<p>Civil actioN, tried before Webb, J., and a jury, at November Term, 1916, of DavidsoN.</p> <p>On motion of defendant, there was judgment dismissing the action, and plaintiff, having duly excepted, appealed.</p>

Civil actioN, tried before Webb, J., and a jury, at November Term, 1916, of Guilford. On 15 August, 1911, tbe American National Life Insurance Company of Lynchburg', Ya., issued and delivered to E. R. Aiken its policy of insurance upon bis life, payable to tbe plaintiff, bis wife, in tbe sum of $1,000. Tbe annual premium was $49.64.

Appeal by defendants from Webb, J., at November Term, 1916, of Davidson. S. A. Cecil died leaving two sons, C. A. Cecil, Yancey Cecil, and a daughter, Julia A. York, by the first wife; and three sons, Alpheus Cecil, Barna Cecil, and John A. Cecil, and two daughters, Leovina and Daisy Cecil by his' second wife. He left the following will: In the Name of God Amen. June 25, ’84.

Appeal by the petitioner, Laurinburg and Southern Railroad Company, from a judgment of Bond, J., at October Term, 1916, of Wake, which judgment affirmed the order of the North Carolina Corporation Commission dismissing the petition filed before the Corporation Commission by the petitioner, Laurinburg and Southern Railroad Company, v. the Seaboard Air Line Railway Company.

Civil actioN to recover for physical injury to plaintiff, caused by alleged negligence on the part of the defendants, tried before Connor, J., and a jury,- at December Term, 1916, of New Hanoveb.

<p>Civil aotioN, tried before Webb, J., at October Term, 1916, of GuHJTOKD.</p> <p>This is an action to recover land.</p> <p>The plaintiff introduced evidence tending to show that Peter Yanstory was the owner of the land in controversy; that he died in 1887 or 1888 leaving surviving him three children as his heirs at law, to wit,. Charlie Yanstory, Bob Yanstory, and Sarah Yanstory; that Sarah Yanstory died prior to 1905, having theretofore intermarried with one Troxler, leaving surviving her her husband, who died about 1905-, .and the plaintiff, who was a son born of said marriage and an heir at law of Sarah.</p> <p>The plaintiff also offered in evidence, for the purpose of attacking it, the mortgage deed from Peter Yanstory and wife to S. S. Gant, dated 24 May, 1880, and registered 3 July, 1880, and a deed from C. R. Doggett and others, executors of the- said Gant, to Robert Yanstory. This deed purports to be made by virtue of a sale made under the power contained in the mortgage from Yanstory to Gant, and it contains all of the recitals showing the regularity of the advertisement of the sale of the land and the regularity of the sale.</p> <p>The plaintiff also offered evidence tending to prove that the land was not advertised' for sale according to law under the power contained in said mortgage deed, and then offered mesne conveyances from the said Robert Yanstory to the defendant for the purpose of showing that the defendant claimed under Peter Yanstory.</p> <p>The defendant also offered in evidence the chain of title from Peter Yanstory to the defendant, including the deed from the said executors to Robert Yanstory and the deed to the defendant, which is dated in 1903.</p> <p>The evidence for the plaintiff tended to prove that he was born in 1890 or 1891; that this action was commenced on 20 November, 1915, and within twelve months of a judgment of nonsuit in a former action between the same parties to recover this land, which said former action was commenced on 19 October, 1911.</p> <p>The only evidence to the contrary as to the age of the plaintiff is that one witness stated that Peter Yanstory died in 1886 or 1887 and that he thought the plaintiff was living at the time Peter Yanstory died.</p> <p>There is no evidence as .to the possession of said land from the death of Peter Yanstory up to the time the defendant bought in 1903, except that the plaintiff stated: “My Uncle, Bob Yanstory, stayed there a right smart while.”</p> <p>The defendant offered evidence tending to prove that he had been in the continuous adverse possession of the land from and after his purchase in 1903.</p> <p>His Honor charged the jury that the burden of proof was on the plaintiff to show that the land had not been properly advertised under the mortgage of Peter Yanstory to Gant, and the plaintiff excepted.</p> <p>His Honor further charged the jury as to possession as follows: “If you should find that there was a void deed, that there was no sale made by the executors, no advertisement, that would give the plaintiff one'-third interest in the property in question; that is, he would be a tenant in common with the defendant, and the law says it takes twenty years to bar him; the defendant would have to be there twenty years in order to bar the plaintiff’s right from bringing action against his cotenant, unless you find there was actual ouster, unless you find that his cotenant, the defendant, turned him out of possession; then he would have to bring-his action within seven years; but if there is no ouster, and the plaintiff simply knowing he was there would be no ouster; so if you find that it was a void deed, that is, the deed the executors made, there was no sale and no advertisement made by the executors — if you find that by the greater weight of the testimony, then the' court charges you the plaintiff would be entitled to one-third interest in this property; and I withdraw from you what I said on yesterday, that notwithstanding that, if he permitted the defendant to stay there seven years, under known and visible lines, that would ripen his title, I withdraw that, and tell you it would take twenty years, unless you find there was an actual ouster.”</p> <p>The plaintiff excepted.</p> <p>There was a verdict and judgment for the defendant, and the plaintiff .appealed.</p>

Civil actioh, tried before Long, J., at January Term, 1917, of GuilvoRd. This is an .action to recover the sum of $600 alleged to be due by contract. The defendant admitted the execution of the contract, and alleged that he had paid the sum of $500 thereon.

Civil actioN, tried before Webb, J., and a jury, at February Term, 1917, of Mooee. The jury having been impaneled, plaintiffs introduced their evidence and, thereupon, the court having intimated an opinion adverse to plaintiff’s right to recover’, they submitted to a nonsuit.

<p>Civil actioN, from RichmoNd, heard 8 January, 1917, by Webb, J., upon a motion for the continuance of an injunction to the final hearing of the case.</p> <p>The court denied the motion, and plaintiff appealed.</p> <p>These are the facts: Defendant sold and transferred to the plaintiff his barber business in the town of Hamlet, N. C., together with the furniture, fixtures, and other property used therein, and the good will of the business, for a certain consideration, and also agreed that he would not in any manner, either directly or indirectly, engage in the same, or any similar business, in said town for the period of two years from the execution of the contract, 9 June, 1916, with this further condition: “It is expressly understood that the stipulation aforesaid are to apply to, and to bind the heirs, executors, and administrators •of the respective parties; and in case of failure, the parties bind themselves, each unto the other, in the sum of $400 as liquidated damages, and not as ,a penalty, to be paid by the failing party.”</p> <p>The defendant did engage in the business of a barber in the town of Hamlet, N. C., within the two years, and plaintiff brought this action to enjoin him from continuing therein. The court held, and so adjudged, that the defendant should not be enjoined if he gave a good and sufficient bond in the.sum of $500, upon condition that he pay the plaintiff such damages as he may suffer for the breach of this contract.</p> <p>The record is silent as to the important fact whether the bond was given by the defendant as required to be done by the order, but it was admitted here that it had been given and that the restraining order was dissolved, and the parties desire the case to be decided on its merits.</p>

<p>1. Trusts and Trustees — Spendthrift Trusts — Income — Statute of Uses — Statutes.</p> <p>A devise creating a spendthrift trust, under Revisal, sec. 1588, for the trustee to receive and pay the profits, annually, 'or oftener for the support and maintenance of the testator’s named son, is not a passive trust either as to the principal or income, or one executed under the statute of uses, and is not subject, as to either, to the payment of the debts created by the cestui que trust, though he be a nonresident of the State.</p> <p>2. Same — Creditors—Exemptions.</p> <p>The effect of the spendthrift trust, Revisal, sec. 1588, is not to create a personal property exemption in favor of a nonresident cestui que trust in the income from the trust estate.</p>

Appeal by defendant Lyon from Cline, J., at November Term, 1916, of ANSON. The defendants Lyon and Morton were engaged in business as a partnership under the style of the Wadesboro Plumbing Company. This is an action to recover the price of certain goods shipped to them by the plaintiff on 29 July, 1914. The defendant Lyon contends that the partnership was dissolved before the goods were shipped.

Civil action-, heard on motion by defendant The Southern Power Company, to remove the cause to the Federal court, before Long, J., at January Term, 1917, of G-uilfoed.

Civil, ACTION, heard at February Term, 1917, of Moore, before Webb, J., upon demurrer by defendants Fannie A. Blue .and J. W. Graham. The court sustained the demurrer and plaintiff appealed.

Civil action, tried, before Cline, J., at November Term, 1913', of Stanly. This is an action to recover the sum of $93.66 which, the plaintiff alleges is due him on account of an agreement entered into by the defendant, a stockholder of the E. M. Asbury Company. The E. M. Asbury Company was a corporation and the stockholders were E. Y. Watkins, C. J. Mauney, C. W. Andrews, E. M. Asbury, A. S. McRae, and Miss Spencer.

<p>Civil actioN, tried at October Term, 1916, of Scotland, before Cline, J.</p> <p>A jury trial being waived, the court found the facts and rendered judgment denying the relief prayed and dismissing the action. Plaintiffs appealed.</p>

Civil actioN tried before Cline, J., at October Term, 1916, of UktioN, on special appearance and motion by defendants to dismiss the action for want of jurisdiction of the court, and then on demurrer ■to the complaint, based upon the ground, first, that the court has no jurisdiction of the action, and, second, that there is no cause of action stated, as the plaintiffs cannot attack collaterally the probate of a will taken in the court of another county, where the testator…

Appeal by defendant from Long, J., at March. Term, 1917, of Gutleokjd. In Yates v. Ins. Go., 166 N. 0., 134, as to the same subject-matter, the plaintiffs had obtained an order restraining the defendant from erecting a building over an alleyway, and they appealed from the order dissolving it.

Civil action-, tried before Webb, J., and a jury, at Mareb Term, 1917, OÍ ÁNSON. Tbe action was to recover a balance due for building material supplied to defendant pursuant to a contract made in tbe course of plaintiff’s business, W. R. Courtney, and conducted by bim under tbe name and style of tbe Wadesboro Marble Works and without having registered tbe true name of plaintiff as owner of tbe business, as required by act of 1913, cb. 77.

Civil ACTION, beard by Cline, J., upon, tbe report of a referee, at January Term, 1917, of GastoN. Plaintiff sued for $1,566.87 and interest, being tbe amount it alleged to be due by tbe defendant for lights and current furnished to it under a contract, dated 8 November, 1912, between tbe Southern Power Company and defendant, tbe plaintiff having succeeded to tbe rights of tbe power company under tbe contract.

Civil actioN, tried before Justice, J., at September Term, 1916, of GASTON. This is an action to recover money, commenced in tbe Superior Court, and tbe question presented by tbe appeal is wbetber it is an action in tort or in contract. Tbe action was commenced against tbe defendant Pasour, and thereafter tbe First National Bank of Gastonia was made a party defendant.

<p>1. Railroads — Street Railways — Penders—Evidence—Nonsuit.</p> <p>Where in an action to recover damages against a street car company for the negligent killing of plaintiff’s intestate there is evidence tending to show that the intestate was run over while down upon the track, and that' the car was equipped with an old style fender, costing about $5, which was unavailable to save a pedestrian in this position, but that with later styles of practical fenders, with which the car could have been equipped, in general use a number of years, costing about $80, the life of the intestate could have been saved, at the speed of the car at the time, defendant’s motion to nonsuit should not be 'granted.</p> <p>2. Railroads — Street Railways — Fenders—Statutes—Exceptions — Burden of Proof.</p> <p>The burden of proof is on a street railway company to show that the Corporation Commission, in its judgment, had found it unnecessary to enforce the provisions of Revisal, sec. 2616, requiring the use of “practical fenders” on their street ears, in an action to recover damages caused by its negligence in not using them.</p> <p>P. Railroads — Street Railways — Statutes—Negligence Per Se.</p> <p>The “practical fenders” required for street cars by Revisal, sec. 3601, making the failure to use them a misdemeanor, are those which are efficient for the purpose of protecting human life, etc., or the most approved appliance in general use, and a violation of this' statute is negligence per se.</p> <p>4. Railroads — Street Railways — Penders—Instructions.</p> <p>Where there is evidence tending to show that the plaintiff’s intestate was killed by reason of the failure of defendant street car company to use “practical fenders” on its car, an instruction to the jury to answer the issue of negligence “No” is erroneous.</p> <p>5. Railroads — Street Railways — Pedestrians—Negligence.</p> <p>Pedestrians on the streets of the city have equal rights to the use of the streets with street car companies, and the motormen on the cars are held to a higher degree of care in looking out for their safety than engineers running the trains on the right of way of a railroad company; .and failure of the motormen in this respect constitutes negligence.</p> <p>6. Contributory Negligence — Evidence—Burden of Proof — Trials—Nonsuit.</p> <p>Revisal, sec. 483, places the burden of proof on defendant to show contributory negligence by the preponderance of the evidence, and defendant’s motion to nonsuit on this issue should not be granted unless it appears from the plaintiff’s evidence that the plaintiff contributed to his own injury as the proximate cause thereof.</p> <p>7. Railroads — Street Railways — Negligence—Trials—Evidence—Nonsuit.</p> <p>Where there is evidence that the plaintiff’s intestate while down upon the track of a street railway in a city was run over and killed at a place where the view of the track was unobstructed for 200 feet, and the intestate could have been seen by the motorman in time to have avoided the injury, a nonsuit is improperly allowed.</p> <p>8. Railroads — Street Railways — Fenders—Negligence—Proximate Cause.</p> <p>Where a pedestrian, helpless and down upon a street car track in a city, has been run over and killed by defendant’s street car, which would not have occurred with the use of a proper fender, the negligence of the defendant continues up to the time of the injury and is the proximate cause thereof.</p>

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

<p>Civil actioN, tried before Ferguson, J., and a jury, at October Term, 1916, of Burke.</p> <p>Plaintiffs allege that defendant J. H. Cook bad trespassed on certain lands described in a deed from Tobias Queen to J. H. Cook, dated 21 February, 1894, and a deed from tbe latter, dated 13 October, 1905, for tbe timber tbereon, consisting of “white pine, poplar, oak, chestnut, and yellow pine which will make merchantable lumber, except chestnut oak,” with the right to cut, saw, and remove the same within fifteen years from date of deed. It is further alleged that plaintiffs, by virtue of said deed, are the owners of the timber trees on the land conveyed by the defendant’s deed to them, and that defendant unlawfully and wrongfully entered upon the land while plaintiffs were cutting timber thereon, and cut timber and shingle blocks on the land, it being part of the timber belonging to the plaintiffs, thereby damaging them in the sum of $100. Defendant admitted the allegations of the first section of the complaint, that Tobias Queen had conveyed the land to him. He denied the second section, as to the deed of himself to plaintiffs, and as to the trespass, though he admitted that he had cut shingle blocks to the value of $10 from the land described in the deed of Tobias Queen to him. He denied the execution of the deed of J. H. Cook to plaintiffs, which was introduced in evidence, having been duly registered, and alleged that he did execute a deed to plaintiffs for timber, but that the deed in evidence was different from the one made by him, and that his deed had been changed and altered, and provisions added thereto after its execution, and that his true deed only allowed five years for cutting the timber, and not fifteen years, which words were inserted after the execution of his deed, without his knowledge or consent, and he avers that he is, and that at the time he cut the shingle blocks on the land be was entitled to cut and remove any and all timber then remaining on the land, and that plaintiffs had no interest therein. He demands damages because he has been prevented by plaintiffs from cutting the timber remaining on the land, which belongs to him and not to the plaintiffs. The deed of Tobias Queen to defendant, and the deed of the latter to tlie plaintiffs, were offered in evidence by the plaintiffs, both deeds having been duly registered, as appeared therefrom. Plaintiffs next introduced the first section of the complaint, alleging the execution of the deed of Tobias Queen to the defendant, and the first section of the answer, admitting the same, and also the fourth section of the answer, admitting the defendant had cut the shingle blocks from, the land, which he claimed as his own, and plaintiffs then rested. Defendant moved for a nonsuit, which was refused, and he excepted. He did not introduce any evidence. The court charged the jury that if they believed the evidence they would answer the first issue “Yes” and assess nominal damages, say, twenty-five cents, or some small sum. The jury returned the following verdict:</p> <p>1. Is the plaintiff the owner of the timber and timber rights, as alleged in the complaint? “Yes.”</p> <p>2. What damage has plaintiff sustained, if any, by the wrongful acts of defendant? “Twenty-five cents.”</p> <p>Judgment for plaintiffs on the verdict, and appeal by defendant.</p>

<p>1, Condemnation — Compensation—Constitutional law — Statutes.</p> <p>' A statute for the relocation and construction of a public highway which provides that “the jurors shall in considering the question of damages take into consideration the benefits to the landowner and shall render a verdict for such amount, if any, as the damages may exceed the benefits,” awards just compensation to the owner upon striking the balance, and is constitutional.</p> <p>2. Same-legislative Discretion.</p> <p>The Legislature, in conferring the right of condemnation of lands for public use, may, in its discretion, and as compensation to the owner, require all the benefits or a specified part of them, or forbid any of them to be assessed as offsets against the damage.</p> <p>8. Same — Offset—Special Advantages.</p> <p>The defendant in condemnation proceedings, where the statute permits, is entitled to offset against the value of the land taken and the owner’s damage, if any, to the rest of the land, the benefits the plaintiff has derived by reason of the additional value, if any, of his tract of land caused by the special advantage thereto which is not general to the other landowners.</p>

<p>1. Corporations — Subscription Lists — Application for Certificate — Evidence— Method of Payment.</p> <p>Where some of the subscribers to' the capital stock of a proposed corporation, upon agreement with the others to act for them, sign the application for the certificate apportioning the capital stock equally among the incorporators, the application for the certificate is the only subscription to the capital stock, and the subscription list theretofore taken is only evidence of the method of payments to be made, and is not objectionable on the ground that it varied the application upon which the charter was later obtained.</p> <p>2. Same — Receivers—Unpaid Balance — Incorporation Credits.</p> <p>Where some of the subscribers to the capital stock of a proposed corporation sign an application for the certificate apportioning the capital stock among themselves, under agreement with the other subscribers that they, in so doing, should act for them all, and the corporation, accordingly formed, accepts the subscription list as an asset and collects from the other subscribers thereon, in- an action by the receiver to recover of the incor-porators the unpaid balance of their subscription, it is Held, that the receiver in seeking to enforce the equity arising from the doctrine that such balance is in the nature of a trust fund for the creditors’ benefit is required to do equity, and therein the incorporators are entitled as a credit not only to what they may have paid on their-own subscriptions, but also such sums as the other subscribers may have paid.</p> <p>3. Corporations — Subscriptions—Secret Agreement — Receivers—Unpaid Balance.</p> <p>Subject to lienors, in accordance with their priorities, the unpaid subscriptions to the capital stock of a corporation are to be collected and held in the nature of a trust fund for the creditors and other stockholders; and where suit is brought for them by the receiver of an insolvent corporation, an incorporator may not vary the written terms of his subscription by showing a secret agreement whereby he was only required to take a less amount of the shares.</p> <p>4. Corporations — Insolvency—Unpaid Balance — Subscribers—Claims—Offsets. A shareholder of a corporation, since having become insolvent, and in the hands of a receiver, cannot offset, as against his unpaid balance due upon his shares, a debt alleged to be due him by the corporation.</p> <p>5. Corporations — Insolvency—Subscriptions — Unpaid Balance — Other Subscriptions.</p> <p>Where a subscriber to the 'capital stock of a corporation is sued by the receiver of the corporation, having become insolvent, for an unpaid balance on his subscription, such sums as he may have paid on the subscription of others will not be allowed him as a credit on his own subscription.</p> <p>C. Reference — Appeal and Error — Exceptions—Trial by Jury.</p> <p>Where exception to a reference is not taken or the rights of the party preserved, his demand for a trial by jury will not be granted.</p>

Civil ACTION, tried at November Term, 1916, of MecKleNbubg, before Justice, J. At the conclusion of plaintiff’s evidence the court sustained motion to nonsuit. Plaintiff excepted and appealed.

Appeal by defendant from Cline, J., at March Term, 1917, of GastoN. This action was begun in Gaston against the Southern Power Company and the town of Kings Mountain as joint defendants, to recover damages for'the wrongful death of plaintiff’s intestate, which occurred from coming in contact with a live wire. Tlie Southern Power Company is a nonresident of this State and the town of Kings Mountain is a municipal corporation located in Cleveland.

<p>1. Drainage Districts — Constitutional law — Assessments — Appeal- — Due Process.</p> <p>Where a statute relating to a drainage district provides for the assessment on the lands therein, and an appeal therefrom by the owner within ten days after the amount has been fixed, does not deprive the owner of “due process” guaranteed by the Constitution.</p> <p>2. Drainage Districts — Assessments—liens—Personal liability — Judgments —limitation of Actions.</p> <p>An assessment upon the lands of an owner within a statutory drainage district, made only a lien upon the lands, does not impose a personal liability on the owner; and where the statute declares the lien “as a special tax on the land,” the action provided by the statute to collect the assessment is as one upon a judgment to foreclose a lien, Revisal, sec. 2866, and is not barred within ten years.</p>

<p>1. Husband and Wife — Deeds and Conveyances — Contracts to Convey — Separate Examination.</p> <p>A contract to convey lands of a married woman cannot be specifically enforced against her unless her privy examination has been taken to the instrument, though, on breach established, an action for damages may lie.</p> <p>2. Equity — Cloud on Title — Suits to Remove — Statutes.</p> <p>Our statute has enlarged and broadened the old doctrine of permitting suit to remove a cloud upon title to lands, and affords the remedy wherever one owns or has an estate or interest in real property, whether he is in or out of possession, and another sets up a claim to an estate or interest therein which purports to affect adversely the estate or interest of the true owner, whether by way of claim of an enforcible parol trust, leases not required to be in writing, existent records or written instruments, that are reasonably calculated to burden and embarrass such owner in the full enjoyment or disposition of his property at a fair market value; the statute affording a remedy by disclaimer when the party does not in fact claim the “adverse interest” which is alleged to be a cloud on the title of the true owner. Revisal, sec. 1589; Public Laws 1903, ch. 763.</p> <p>8. Same — Husband and Wife — Separate Examination — Registration.</p> <p>A contract to convey the lands of the wife, signed by her and her husband, but without having taken her privy examination, when recorded is a cloud upon her title to the lands and subject to her suit to remove the same, as such, within the intent and meaning of our statute, Revisal, sec. 1589; though she be and remain in possession of the land.</p> <p>Clark, C. J., dissents.</p>

<p>Marriage and Divorce — Alimony—Findings—Appeal and Error — Statutes.</p> <p>To sustain on appeal an order of the trial judge allowing alimony to ' the wife pendente lite, in an action for divorce a mensa, it is necessary for the judge to have found the facts, upon conflicting evidence, upon which he had based his order; and his finding only that the plaintiff had made out a prima facie case of abandonment is insufficient. Revisal, sec. 1566.</p>

Civil actioN, tried before Garter, J., and a jury, at Spring Term, 1917, of IREDELL. The action was brought to recover the amount alleged by the plaintiff, the beneficiary, to be due upon a life and accident insurance policy issued to her husband, Dr. Nicholas Gibbon Moore, on 24 June, 1910.

Civil ACTION, tried before Lane. J., and a jury, at October Term, 1916, of Avery.

<p>1. Statute of Frauds — Judicial Sales — Sheriffs—Principal and Ágent.</p> <p>A sheriff at an execution sale of lands under a judgment, hy public outcry hy his auctioneer, acts as agent for all parties therein interested, including the purchaser, and a memorandum made hy him on the execution at tlie time of the sale of the purchaser thereat, and the price, with description of the lands in the execution, is sufficient memorandum of the transaction within the meaning of the statute of frauds.</p> <p>2. Judicial Sales — Mortgages—Judgments—Equity of Redemption — Priorities.</p> <p>A mortgagee of lands, purchasing at an execution sale under a judgment to which he is a stranger, sold subject to his mortgage, can acquire only the equity of redemption (Rey., sec. 629 (3), subject to the judgment debt.</p>

Civil actiojst, tried by consent by Gox, Jat Chambers, 21 April,' 1917; from Chatham. This is an action to determine the title to a tract of land. W. A. Marcom was formerly the owner of the lands in question.

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

<p>1. Partnership — Profits—Principal and Agent — Compensation.</p> <p>Where the sharing in the profits of a business arrangement is only a • method employed in determining the compensation one is to receive for services rendered another, it falls within the exception of the rule that the test of whether a partnership exists is the sharing of profits .by the parties.</p> <p>2. Insurance, Life — Corporations—Officers — Insurable Interests — Principal and Agent — Statutes.</p> <p>Where the manager of a concern employs another to take charge of its insurance department, its soliciting agents, etc., by which a profitable businss is built up, upon an agreement that the one producing the business is to receive as compensation a certain part of the profits, it is not conclusive evidence of a partnership between the two, and the corporation has an insurable interest in the life of the manager of its insurance agency, and expressly so under the provisions of our statute, chapter 507, Public Laws 1909.</p> <p>3. Insurance, Life — Delivery of Policy — Health of Insured — Duty of Insurer.</p> <p>If any time elapses between the application for policy of life insurance and its issuance, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured, and upon its failure to do so the delivery is conclusive that the policy contract is completed, and binds the parties to the mutual obligations therein imposed upon them.</p> <p>4. Same — Noncontestable Clause — Defenses.</p> <p>A clause in a policy of life insurance making it incontestable at the end of a year covers the defense of the alleged bad health of the insured at the time of its delivery, and also that of false and fraudulent statements alleged to have been made by the insured in his application.</p> <p>ñ. Same — Exceptions.</p> <p>Where a policy of life insurance has been issued containing a clause making it noncontestable after the expiration of a year, except for nonpayment of premiums, after that period no defense is available to the insurer, in an action upon the policy, excepting the nonpayment of the premium, as therein stated.</p> <p>6. Insurance, Life — Noncontestable Clause — Insurer’s Benefit.</p> <p>The noncontestable clause in a life insurance policy is for the benefit of the insurer in increasing its business by assurance that after the maturity of the policy, usually upon the death of the insured, its collection will not be subject to the uncertainty and delay of litigation, or questioned except as to matters therein stated — in this case, the nonpayment 'of premiums.</p> <p>7. Insurance, life — Noncontestable Clause — Breach by Insurer — Bights of Insured.</p> <p>Upon refusal of the life insurer to perform its part of a policy contract, and its notification thereof to the insured, the latter may elect to consider the policy at an end and recover its just value; or he may sue in equity to have the policy declared in force, or tender the premiums and treat the policy as in force and recover the amount payable according to its terms at maturity.</p> <p>8. Same — Suits—Equity—Cancellation—Consent—Validity of Policy.</p> <p>Where a policy of life insurance containing a clause making it noncon-testable after the expiration of a year, except for nonpayment of premium, has been delivered and the premium paid therefor, an attempt by the insurer within that time, upon notification to the insured, to cancel the policy with tender of repayment of the premium upon a different ground than that stated in the clause, but not consented to or accepted by the latter, is a breach of the contract by the former; and it is necessary for the insurer, within the'stated time, to bring suit in equity for the cancellation of the policy, or it will remain binding and enforcible upon the insurer’s death.</p>

Appeal by defendants from Cline, J., at April Term, 1916, of MecK-LENBURG. This is a special proceeding for sale for partition of the “Central Hotel” property on Independence Square in Charlotte,. The feme petitioners are the sole surviving children of M. L. Wriston, deceased (their husbands being joined).

Civil actiou, tried February Term, 1917, of MeokleNbubg, before Qline, J., upon this issue: Are tbe defendants indebted to the plaintiff, and if so, in what amount ? Answer: “Yes; $1,000, with interest from 1 November, 1913.” Prom judgment rendered defendants appealed.

Civil action, tried before Carter, J., at December Term, 1916, of RANDOLPH. This is an action to recover land, tried on the following agreed statement of facts: 1. That this action was instituted in the Superior Court of Randolph County on 16 August, 1916, for the recovery of the land described in a deed hereinafter set forth, and all the defendants were personally served with summons. 2.

<p>Parties — Mortgages—Executors and Administrators.</p> <p>Where suit of foreclosure is brought, with allegation that the mortgagee of the land is dead and that his personal representative has not been made a party, a demurrer for the want of necessary parties is properly sustained. Revisal, sec. 239 (4). Such representative, when only a proper party, may be brought in at the option of either party to the suit.</p>

<p>1. Foreign Corporations — Corporate Powers — Business in Home State — Actions — Defenses.</p> <p>A corporation incorporated in another State with authority to conduct business here, which has complied with our statutes, can maintain an action in our courts although its charter may not authorize it to do business in the State of its incorporation. Rev., 1193.</p> <p>2. Foreign Corporations — Corporate Powers — Quo Warranto — Collateral Attach.</p> <p>The right of a foreign corporation to do business in this State under its charter may only be attacked by quo warranto with leave of the Attorney-General.</p>

Civil actioN, tried March Term, 1916, of YadKIN, before Shaw, J. At conclusion of the evidence a motion to nonsuit was sustained, and plaintiff appealed.

<p>Civil actioN, pending in tbe Superior Court of McDowell, beárd by Carter, J., 27 April, 1917, upon motion to continue injunction to final hearing. Motion denied. Plaintiffs appealed.</p>

Appeal by defendants from Shaw, J., at Mareb Term, 1917, of MadisoN. This action was brought against C. J. Ebbs and two others to recover $800, the installment due on the purchase price of a certain tract of land. ~W. J. McLendon addressed the following letter to — - Mb. C. J. AND P. D. Ebbs, 10 April, 1916.

Civil actioN, tried March Term, 1916, of Edgecombe, before Allen, J., upon exceptions to report of referee. From tbe judgment of tbe court defendant appealed.-

<p>Appeal by defendants from Connor, J., at chambers in Wlison, 26 April, 1917.</p>

Civil acjioN, tried before Cox, J., at April Term, 1917, of Lee. This is an action to have the plaintiff declared entitled to an annuity of $500 and to recover a part of the same alleged to be due.

Civil actioN, tried before Oonnor, J., and a jury, at November Term, 1916, of New HaNovee.

Civil actioN, tried before Harding, J., at May Term, 1916, of BUNCOMBE. This is an action to recover damages for personal injury sustained while an inmate of a private sanitarium of the defendant, alleged to have been caused by the negligence of the defendant.

Civil actioN to restrain the issue and delivery of $200,000 bonds of the county of RociaNGHAM in pursuance of a resolution of the board of commissioners, heard, by consent, before Lane, J., as resident judge of the Eleventh District, at Reidsville, N. O., on 28 April, 1917.

Civil action, tried before Ha/rding, J., and a jury, at Fall Term, 1915, Of TRANSYLVANIA. Plaintiffs brought this stiit on 12 September, 1914, to recover the sum of $543.95, alleged to have been fraudulently converted to bis own use by defendant J. M. Glazeiier, who was their partner in the book business.

Civil actioN, tried before Adams, J., at Spring Term, 1917, of Cherokee. This is a motion for leave to issue execution on a judgment rendered in tbis action as follows: Tbis cause coming on to be tried before bis Honor, B. E. Long, and a jury, upon tbe issues which, witb responses, are as follows: 1. Are tbe defendants indebted to tbe receiver, and if so, in wbat amount? Answer: “Yes, $13,420.50, witb interest from 3 April, 1916, on tbe principal, to wit, $12,000.” 2.

Civil actioN, tried before Harding, J., at Fall Term, 1916, of 1ÍAOON. This is an action to recover damages for the alleged failure of the defendant to furnish two cars for the shipment of cattle from Otto, North Carolina, to Atlanta, Georgia, within the time called for in the written order which the plaintiff gave the defendant for the cars.

Appeal by plaintiff from Harding, J., at Fall Term, 1916, of Macon\ At tbe conclusion of the evidence the1 court, being of opinion that there was not sufficient evidence to be submitted to the jury, entered a judgment of nonsuit. The defendant excepted and appealed.

Civil actiost, tried before Adams, J., at April Term, 1917, of Cherokee. Plaintiff sued upon an unsealed note given by B. B. Meroney and tbe seven other defendants, on 3 March., 1914, for $448.75, due twelve months after date, with interest at 6 per cent per annum. Judgment was entered in favor of the plaintiff, and the defendants appealed.

Civil ACTION, beard, on motion to dissolve preliminary restraining order, before Carter, J., bolding courts of Sixteenth Judicial District, on 28 March, 1917.

Civil action, beard at January, Term, 1917, of Wayne, before Cox, J., upon exceptions to report of referee. To tbe rulings of tbe Court botb parties excepted and appealed from tbe judgment rendered.

Special peoceediNG for tbe allotment of a year’s support under Revisal, sec. 3104 et seq., in tbe Superior Court of Wake, upon appeal from tbe clerk, by Devin, J., at March Term, 1917. From tbe judgment rendered tbe defendants tbe Wacbovia Bank and Trust Company, general guardian of James G. Hanes, Jr., and Joseph B. Cheshire, guardian ad litem of John'C. Drewry, Jr., appeal.

Grvn, ACTION tried before Kerr, J., at April Term, 1917, of DuehaM. This is an action brongbt by plaintiff, as a resident and taxpayer of the city of Durham, to enjoin the issue of bonds for the purchase, or construction, and maintenance of a system of water-works by said city for the purpose of supplying its inhabitants with water. The act of the General Assembly authorizing the issue of bonds for the purpose aforesaid was ratified on 9 January, 1917.

<p>Civil actioN, tried before Cline, J., at Spring Term, 1917, of GastoN. Plaintiff appealed.</p>

<p>Civil actioN, tried before Garter, J., bolding the courts of tbe Sixteenth District, on 21 March, 1917, at chambers. Plaintiff appealed.</p>

<p>Civil actiok, tried before Shaw, J., at Spring Term, 1917, of Buncombe. Defendants appealed.</p>

<p>1. Venue — Actions—Statutes—Residence of Parties — Lands.</p> <p>Revisal, sec. 424, providing that the venue of causes of action shall he where the plaintiffs or defendants or any of them reside, is general in its terms and subject to the provisions of Revisal, sec. 419, subsec. 1, specifying the venue for the recovery of real property or of an estate or interest therein, or for the determination in any form of such right or interest, etc., shall be in the county in which the subject of the action or some part thereof is situated.</p> <p>2. Same — Creditors’ Bill — Principal Relief — Deeds and Conveyances — Fraud.</p> <p>Where the wife of a debtor is made party defendant in an action in the nature of a creditors’ bill in order to set aside his deed to her for fraud and subject the land to the satisfaction of the demands of his creditors, the suit to establish the plaintiffs’ claims will be considered as incident to the essential and controlling purpose of setting aside the deed, and the venue governed by Revisal, sec. 419, requiring that the suit be brought in the county wherein the land, etc., is situated.</p> <p>3. Corporations — Venue—Statutes—Deeds and Conveyances — Fraud.</p> <p>Revisal, sec. 422, is for the purpose of determining the residence of domestic corporations, and does not affect the question of the venue of an action in the nature of a creditors’ bill to set aside a husband’s deed to his land to his wife alleged to be fraud of the creditors’ rights.</p>

Civil actioN to recover certain lands tried at September Term, 1916, of GRa-ham, before Harding, J., upon these issues: 1. Are the plaintiffs the owners and entitled to the possession of the lands described in the complaint? Answer: “No.” 2. Is the defendant’s possession of said land unlawful and wrongful? Answer: “No.” 3. What damage, if any, are the plaintiffs entitled to- recover? Answer : 4.

<p>Civil aotioN to recover a horse, tried at October Term, 1917, of Swaist, before Harding, J.</p> <p>From a verdict and judgment for plaintiff, defendant appealed.</p>

Civil action, tried'before Wkedbee, J., at August Term, 1916, of WASHINGTON. 'Defendant appealed. This is an action in which the plaintiff recovered $75 damages because of the unreasonable delay of the defendant in transporting her as a passenger from Hoke Station to Plymouth and on account of the failure of the defendant to supply her with sufficient and proper accommodations while in its station at Maekeys Ferry, in which she was detained several hours.

Civil actioN, tried before Whedbee, J., at September Term, 1916., of PasquotaNK. This is .an action to recover damages for physical injury caused by the alleged negligence of the defendant in failure to keep one of its streets in proper repair and sufficiently lighted. At the close of the plaintiff’s evidence, on motion of the defendant, there was judgment of nonsuit, and the plaintiff excepted and appealed.

Civil actioN, tried at October Term, 1916, of Beaueoet, before Whedbee, J., upon these issues: 1. Was plaintiff’s horse killed by the negligence of the defendant, as alleged in the complaint? Answer: “Tes.” 2. Was plaintiff guilty of contributory negligence as alleged in the answer. Answer: “No.” 3. What damages, if any, is plaintiff entitled to recover of defendant? Answer: “$300.” From the judgment rendered, the defendant appealed.

Civil action, tried before Daniels, J., and a jury, at June term, 1916, of Martin. The cause was before this Court on a former appeal by plaintiff from a judgment of nonsuit in the Superior Court, the judgment being set aside here, and the general facts tending to fix responsibility on defendant will be found stated in the opinion on that appeal, reported in 168 N. C., 366.

<p>Civil actioN, tried before Allen, J., at November Term, 1916, of WlLSON.</p> <p>Defendant appealed.</p>

<p>Appeal and Error- — Service of Case — Extension of Time — Written Agreement —Unanswered Affidavit.</p> <p>The ruling that a certiorari will not he allowed in the Supreme -Court to bring up a record on the ground that the agreement to extend the time for serving case was not reduced to writing, has no application where the applicant files his aflidavit to the effect that the time had been extended and the case served therein, and it is not denied by counter affidavit; and motion to dismiss the appeal will be denied.</p>

Civil actioN, tried, before Coofce, J., at October Term, 1916, of YaNce. This is an action to recover upon an insurance policy issued upon tbe life of Robert L. Yan 'Dyke, and payable to bis children. Tbe said Robert L. Yan Dyke died in 1916, leaving a will in which he bequeathed the money arising from the insurance to his wife for the payment of his debts, and appointing his 'wife his executrix.

Civil actioN, tried at August Term, 1916, of Halifax, before Winston, J., upon these issues: 1. Was plaintiff the agent of the defendants in procuring the memorandum of 4 January, 1913, called the Palmer Camp contract? Answer: “Yes.” 2. If he was not, did the defendants ratify the said contract of 4 January, 1913 ? Answer: 3. Was the plaintiff the agent .of the defendants in the sale of the timber described in the complaint and on the terms therein stated? Answer: “Yes.” 4.

Civil ACTION, tried before Daniels, J., at October Term, 1916, of HERTFORD. This is an action to recover $30.22 damages for failure to deliver certain peanuts according to contract. Tbe action was beard in tbe Superior Court on appeal from a justice of-tbe peace, and tbe plaintiff was there awarded $6.95 damages, and tbe defendant appealed.

<p>PetitioN to rehear tbis case, reported 172 N. 0., 31.</p>

<p>Civil action-, from McDowell, heard by Justice, J., at chambers by consent, 23 March, 1916, upon exceptions to tbe report of a referee.</p>

Issue of devisavit vel non, tried at December Term, 1916, of Wake, before Bond, j., upon the following issues: 1. Was the paper-writing propounded, signed, witnessed, and executed according to formalities required .by law to make a valid last will and testament? Answer: “Yes.” 2. Did the said A. J. D. Cross, at time said paper-writing was executed, have sufficient mental capacity to make a valid last will and testament? Answer: “Yes.” 3.

Civil actioN, tried at December Term, 1916, of New HaNover, before, Oonnor, J., upon these issues: 1. What amount, if any, is plaintiff entitled to recover of defendant feed company? Answer: “$106.50, with interest.”' 2. Is the intervenor, Bank of Commerce and Trust Company, owner of the proceeds of the draft offered in evidence, and entitled to possession of same? Answer: “No.” From the judgment rendered the intervenor appealed.

Civil aotioN, tried before Winston, J., at October Term, 1916, of BLADEN. This is an action to recover the value of certain timber cut and removed from the land of the plaintiff by the defendant, heard upon exceptions to the report of a referee. The facts, not excepted to, show that in 1907 plaintiff sold the timber and received $4,500 therefor.

Civil ACTION, tried before Lyon, J., at December Term, 1916, of GrBEENE. This is an action to set aside a deed executed by Anne Coward to ber daughter, upon the ground of want of mental capacity and undue influence. The jury returned the following verdict: 1. Did Mrs. Martha Ann Coward, on 12 September, 1913, have sufficient mental capacity to execute deed set out in pleadings? Answer: “Yes.” 2.

<p>Appeal by defendant from Guilfoed.</p>

Civil action, tried before Cline, at October Term, 1916, of SCOTLAND. This is an action to recover land, the part in controversy being 20 acres of a tract of 40 claimed by the plaintiff. There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

Civil actioN, tried before Cline, J., at October Term, 1916, of ÁNSON. This is an action to subject tbe homestead of B. E. Pritchard to two judgments which the plaintiff claimed to own. The second judgment was adjusted. The defendant John L. Pritchard claimed to own individually the first judgment, and the only question at issue was whether this judgment was owned by the plaintiff or the defendant John L. Pritchard.

Civil actioN, tried at September Term, 1916, of RiciimoND, before Cline, J., upon tbis issue: Are tbe plaintiffs tbe owners and entitled to tbe possession of tbe land designated on tbe court map as included witbin tbe boundaries from “T” to tbe point marked “stake old gum witness,” and tbence to tbe edge of Mark’s Creek and tbence down Mark’s Creek to its intersection witb tbe line from “II” to “GG” and tben to “GG” and tbence towards “Q” to interception of tbe line from “N”…

<p>Appeal and Error — Settlement of Case — Statutes.</p> <p>Revisal; sec. 591, prescribing the manner of service and settlement of cases on appeal to the Supreme Court must he strictly or at least substantially complied with, or the case may be dismissed. The Court examined the record in this appeal and found no substantial or reversible error.</p>

Civil actioN, tried before Ferguson, J., at August Term, 1916, of Caldwell. Two actions involving same controversy pending in Superior Court of Caldwell County were consolidated under above title and referred to W. D. Turner as referee, to take and state an account and determine all issues of fact and law.

Civil action-, tried before Garter, J., at February Term, 1917, of Caldwell. ' This is an action on a note for $100,000, payable to D. M. Puett. The plaintiff alleged the death of D. M. Puett and the qualification of the plaintiffs as his administrators, the execution of the note by the defendant F. P. Moore as a maker, and by the defendants W. C. Moore and W..C. Moore, Jr., as indorsers.

<p>1. Appeal and Error — Rules of Court — Statutes—Laches—Motions.</p> <p>Where appellee fails to immediately send case, counter-case, or exceptions to the trial judge (Rev., sec. 59), and afterwards the counsel agree that the judge settle the case, with disagreement as to this settlement, which was finally settled by the judge, without appellant’s consent, and docketed too late under the Supreme -Court rules, appellee’s motion to dismiss under Rules 5 and 17 will be allowed.</p> <p>2. Same — Certiorari.</p> <p>Where the appellant can show good and sufficient cause why his case on appeal had not been docketed in the Supreme Court in the time required by the rules, or that he was not therein at fault, he should file a transcript of the record proper and move for a certiorari for the statement of the case, which may be done at any time during the term before appellee moves to dismiss it.</p> <p>3. Appeal and Error — Laclies—Agreements—Docketing—Rules of Court.</p> <p>The Supreme Court will not consider appellant’s alleged verbal agreement between the parties as to delay in docketing his case after the time required by the rules, when such is denied.</p> <p>4. Same — Subsequent Terms.</p> <p>In the absence of written agreement between the parties, or an affidavit of such agreement, not denied, an appellant may not docket his appeal at a subsequent term to that at which the rule requires it to be docketed.</p>

Civil actioil heard before Lane, J., at November Term, 1916, of Mitchell, upon the report of a referee and exceptions filed by the defendant, and from the judgment overruling the exceptions and confirming the report defendant appealed.

Civil actioN of trespass, involving also the issue of title, tried before Lane, J., and a jury, at Fall Term, 1916, of Watauga. The two' actions, presenting and dependent, practically, upon the same facts and conditions, the lands being contiguous and same map being used as to location, etc., were consolidated below and tried together by consent of parties. There was verdict for defendant, and plaintiffs excepted and appealed.

<p>Appeal and Error — Petition to Rehear — Commencement of Time Allowed.</p> <p>The time begins to run against a petition to rehear in the Supreme Court from the time the opinion was filed in the office of the clerk of that Court.</p>

<p>1. Judgment Suspended — Conditions—Waiver—Intoxicating Liquors — Criminal Law.</p> <p>A defendant who has been convicted of selling intoxicating liquors in violation of our prohibition laws before a court of competent jurisdiction may waive bis right of appeal and consent to a judgment suspending the sentence upon condition that he appear before the court from time to time and show that he has not since violated the law.</p> <p>2. Same — Orders—Execution of Sentence — Courts—Jurisdiction—Statutes.</p> <p>A trial justice, under the statute, is but the presiding officer of his court, and where the court has suspended judgment against the prisoner upon condition that he report to the court from time to time and show his good behavior, he may not thereafter cause the defendant to be imprisoned or sent to the roads for violating the conditions imposed, except in open court regularly sitting for the transaction of business, and the court must afford him opportunity to be heard, and to employ counsel, if he so desires; and a proceeding held privately in the office of the justice, wherein he attempts to order the execution of the judgment, is without warrant of law and of no effect.</p> <p>8. Courts — Proceedings—Presumptions—Regularity—Habeas Corpus.</p> <p>Proceedings before a court of competent jurisdiction will be presumed to be regular and valid, unless upon their face they plainly appear to be void; and when they do not so appear, they are not subject to review in habeas corpus proceedings.</p> <p>4. Same — Jurisdiction—Suspended Judgment — Intoxicating Liquors — Judge— Sentence.</p> <p>The rule that the proceedings of a court of competent jurisdiction are not reviewable in habeas corpus proceedings does not apply when it appears that the justice before whom the case had been determined had convicted the applicant of violating the prohibition law,- suspended judgment upon condition of good behavior, and ordered the execution of the sentence and the arrest of the defendant in proceedings privately had in his office, and not in open court, as the law requires.</p> <p>5. Judgment Suspended — Conditions—Good Behaviour — Sentence—Unlawful Procedure — Appeal and Error.</p> <p>It appearing in this case that the trial court suspended judgment in a criminal action upon certain conditions, without adjudication of the fact whether the defendant had complied therewith, and had ordered the execution of the sentence and the arrest of defendant without warrant of law, it is Held, that the defendant give a bond in a certain sum for his appearance before the criminal court at a time to be fixed by it, giving him reasonable opportunity to be heard, employ counsel, etc.; and in default of his giving the bond, the court issue a warrant or capias for the purpose of investigation.</p> <p>6. Appeal and Error — Criminal Law — Habeas Corpus — Evidence—Certiorari.</p> <p>Evidence or other matters adjudicated in a criminal case will not he reviewed by the Supreme Court on appeal in habeas corpus proceedings; hut only the jurisdiction of the court and the validity of the judgment. In this case the Attorney-General waived the irregularity, and hy agreement it was regarded as if upon a formal return to a writ of certiorari.</p>

INDICTMENT for arson, tried before Allen, J., and a jury, at September Term, 1916, of Edgecombe. As tbe prisoner moved to nonsuit tbe State, under tbe statute, upon tbe ground that there was no evidence of bis guilt, it will be necessary to set forth a part of tbe testimony as given by tbe State’s witnesses, which is as follows: Nancy Buckner testified: “I am 60 years of age; have lived in Tar-boro most of my life; am a widow, my husband having been dead many years.

<p>INDICTMENT for embezzlement, tried at criminal term, July, 1916, of Richmond, before Cline, J.</p> <p>The defendant was convicted, and from the judgment and sentence pronounced appeals.</p>

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

INdictmeNt tried before Stacy, J., at November Term, 1916, of Wayne. The defendant was charged in the “county court of Wayne County” with the crime of keeping a bawdy house.

INDICTMENT tried at April Term, 1916, of Eandolpti, before Ferguson, J. A special verdict was rendered, upon which the court pronounced the defendant not guilty, and the State appealed.

<p>OeimiNal action, before Bond, J., at September Term, 1916, of Ware.</p> <p>Defendant appealed.</p>

CeimiNal action, tried before Stacy, J., at October Term, 1916, of Forsyth. Tbis is an appeal by Mary Greer, wbo was convicted in the municipal court of the city of Winston on 7 June, 1916, for retailing, the sale being made to one Henry Lemons. The judgment of the court was that the defendant pay a fine of $25 and costs and be imprisoned in the county jail for six months.

INDICTMENT for murder, tried at September Term, of Guilfokd, before Webb, J. The prisoner was convicted of murder in first degree, and from the judgment sentencing him to death, appeals.

CRIMINAL action, tried before Justice, J., at August Term, 1916, of Gaston.

DEFENDANT was tried and convicted at January Term, 1917, of Gas-ton, before Cline, J., upon a warrant charging him with violating the following ordinance of the city of Gastonia: “Fresh Meat Peddler.

Ikdictmekt. for murder, tried before Justice, Jand a jury, at August Term, 1916, of Mecklenbubg. The solicitor having entered a nol pros as to the charge of murder in the first degree, defendant was convicted of the crime of manslaughter and from sentence thereon, appealed to this Court.

<p>INDICTMENT for murder, tried at November Term, 1916, of Caldwell, before FergusonJ.</p> <p>Tbe prisoner was convicted of murder in the first degree and from the sentence of death appeals to the Supreme Court.</p>

<p>1. Constitutional law — Statutes—Police Powers — Municipal Corporations— Watersheds.</p> <p>‘Chapter 56, Laws 1913, requiring the owners of land -to remove treetops, houghs and laps, etc., within 400 feet of the boundary line of a municipal watershed, left from cutting timber thereon, “so as to prevent the spread of fire from such cut-over area and the consequent damage to such watershed,” making its violation a misdemeanor, falls within the police powers of the State, within its legislative discretion, and not within the inhibition of the XIVth amendment to the Federal Constitution as to due process of law and a denial of the equal protection of the law.</p> <p>2. Statutes — Police Powers — Relative Rights.</p> <p>A citizen deriving title to real property from the State acquires it upon condition that he holds it subject to necessary or reasonable regulations in promotion of the public interest, the rights, duties, and advantages of each being reciprocal with those of adjoining owners of lands, and beneficial to all.</p> <p>3. Criminal Raw — Statutes—Intent—Municipal Corporations — Watersheds.</p> <p>The intent to violate a criminal statute is the criminal intent punishable by its terms; and where the intent to violate our statute making it a misdemeanor to leave the tree-tops, etc., within 400 feet from a municipal watershed, etc., is shown, the defendant, having violated it, may not avoid the consequences of his act by showing that his motive was not a bad one.</p> <p>4. Constitutional law — Statutes—Interpretation.</p> <p>A statute will not be declared unconstitutional by the courts unless it clearly appears to be in conflict with the organic law, and such conclusion is unavoidable after removing every reasonable doubt as to its incompatibility with the Constitution.</p> <p>5. Statutes — Municipal Corporations — Watersheds—Timber Interests.</p> <p>One having logging interests upon lands is amenable to the provision of our statute requiring the removal of the tree-tops,'etc., from the cutting-over of the land within 400 feet of a municipal watershed affording the means of a water supply to its inhabitants.</p>

<p>1. Criminal law — Evidence—Demurrer—Statutes.</p> <p>Where the defendant in a criminal action introduces evidence, after the court has overruled his motion to nonsuit upon the State’s evidence, to which ruling he has excepted, he loses his right to have his motion considered only upon the State’s evidence; and where his motion to non-suit after all the evidence is in has been overruled and excepted to, the Supreme Court, on appeal, will consider the whole evidence under the second motion, to see if it is sufficient to support the verdict and judgment. Gregory's Supplement, sec. 3265a.</p> <p>2. Criminal Law — Trials—Evidence—Instructions—Burden of Proof.</p> <p>The charge of the judge to the jury should be considered as a whole, and where in a criminal action he has told them that, for conviction, they must be satisfied of the guilt of -the prisoner beyond a reasonable doubt, it is not required that he repeat this rule of law every time he refers to any finding from the evidence.</p> <p>8. Evidence — Character—Witnesses—Impeachment—Cross-examination.</p> <p>The character of one witness may be impeached by the testimony of another, except as to specific acts, subject, however, to cross-examination as to particular facts so as to attack his estimate of character or to contradict him for the purpose of testing his accuracy.</p> <p>4. Appeal and Error — Witnesses—Evidence—Character—Harmless Error.</p> <p>Where the bad character of a witness has been established, other evidence in impeachment thereof, though erroneously admitted, will be regarded as harmless error, if not prejudicial, as in this case.</p> <p>5. Criminal law — Statutes—Sentence—Court’s Discretion.</p> <p>Construing chapter 80, section 6, Laws 1907, with section 3632, Re-visal (Hinsdale Act), to ascertain the legislative intent, upon consideration of the inherent nature of the subject-matter with the mischief and the proposed remedy, it is Held, that the later act was not intended to take away the • discretion of the trial judge, upon conviction of manslaughter, to sentence the prisoner to a three-year term in the State’s prison, and to wear a felon’s stripes, when in his opinion a sentence to the roads will result in the prisoner’s escape.</p>

<p>1. Constitutional law — Statutes—Pledge—Representation of Ownership.</p> <p>. Revisal, sec. 3434, making it a misdemeanor for a party representing in writing his ownership of certain property and therein agreeing to apply the same to a debt then created, and failing to apply the property so pledged accordingly, is constitutional and valid.</p> <p>2. Same — Indictment—Language of Statute — Motion to Quash.</p> <p>In an indictment under a statute creating the offense, the essential words creating the offense must be given, and when the terms used have acquired a technical significance, for which there is no just equivalent, such words must be given with exactness; and where an indictment is drawn under Revisal, sec. 3434, it should charge the written representation of existent ownership or wages earned, etc., and that the writing contained an agreement to apply them, etc., for in thus failing to follow the written terms employed in the statute the indictment is fatally defective, and should be quashed.</p>

CRIMINAL action, tried before Shcm, J., at January Term, 1917, of Buncombe. The defendant is indicted under tbe act of 1913, chapter 26, which defines bigamy and makes cohabitation in North Carolina following a bigamous marriage in.another State indictable and punishable as bigamous. The State did not offer any evidence.

<p>1. Appeal and Error — Objections and Exceptions — Brief—Bales of Conrt.</p> <p>Exceptions not brought forward in the brief are deemed abandoned on appeal, Rule 34.</p> <p>2. Homicide — Murder—Premeditation — Verdict — Second Degree — Instructions — Appeal and Error.</p> <p>In a trial for homicide exceptions to the charge as to premeditation and deliberation are eliminated by a verdict of murder in the second degree.</p> <p>3. Judgments — Motions in Arrest — Indictment—Accessory—Statutes.</p> <p>A motion in arrest of judgment is permissible only where the indictment is insufficient upon its face; and where the charge therein is murder, it is sufficient to sustain a conviction in a less degree, Revisal, sec. 3269; and a motion in arrest that upon the evidence the accused was an accessory and not a principal will not be granted.</p> <p>4. Homicide — Murder—Accessory—Sentence—Remanding Case — Statutes.</p> <p>Upon conviction of murder in the second degree, and sentence to twenty years in the State’s Prison, upon an indictment for murder, when it appears from the evidence that the accused was only an accessory, the case will not be remanded to the Superior Court for resentence, as the statute provides a sentence for life. Revisal, sec. 3290.</p> <p>5. Homicide — Murder—Accessory—Substantive Eelony — Statutes — Former Jeopardy — Appeal and Error — Harmless Error.</p> <p>An accessory before the fact of murder may now be independently tried as for a substantive felony,'Revisal, secs. 328T, 3289; and where such accessory has been indicted and tried as a principal to a murder, convicted of murder in the second degree and sentenced to a twenty-year term of imprisonment in the State’s Prison, he may not complain that he should have been tried as an accessory, for which a greater sentence can be imposed. Revisal, sec. 3290; or demand that, having once been in jeopardy, he may not now be tried as an accessory, and should therefore be discharged.</p>

<p>INDICTMENT, tried before Harding, J., and a jury at Fall Term, 1916, of Clay.</p> <p>Defendant was indicted under tbe. statute (Revisal, sec. 3613) for injury to property, in that he destroyed a crib of the prosecutor by an explosion of dynamite. He was convicted, and appealed.</p>

CONTROVERSY submitted on ease agreed and beard before Devin, J., at April Term, 1917, of Wake. Tbe question at issue was whether tbe sum of $10,000, “annually,” appropriated by tbe General Assembly of 1915 (chapter 98) for “extension work” by tbe “Bureau of Tuberculosis,” a special bureau of plaintiff corporation created by chapter 40, Extra Session 1913, should be set apart and made available by defendant for tbe purpose indicated.