Volume 174 — North Carolina Reports

Civil actioN tried before Daniels, J., at February Term, 1917, of Beaufort, upon this issue: Was plaintiff injured by negligence of defendant as alleged? Answer: “No.” His Honor set aside the verdict for error of law in charging jury and not in his discretion. Defendant excepted and appealed. Plaintiff also appealed.

<p>Civil actioN tried before Daniels, J., at January Term, 1917, of PeRquimaNS, upon these issues:</p> <p>1. Was plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint ? Answer: “Yes.”</p> <p>2. Did plaintiff contribute by bis own negligence to bis injury, as alleged in tbe answer? Answer: “No.”</p> <p>3. Did tbe plaintiff assume tbe risks and dangers of injury in bis employment? Answer: “No.”</p> <p>4. What damages, if any, is plaintiff entitled to recover of defendant? Answer: “$7,500.”</p> <p>From tbe judgment rendered defendant appealed.</p>

Civil actioN tried before Daniels, J., at January Term, 1917, of CubRitucK, upon these issues: 1. Was the plaintiff Jerry Buncb injured by the negligence of the defendant Lumber Company, as alleged? Answer; “Yes.” 2. Did plaintiff Jerry Bunch by his own negligence contribute to his injury, as alleged in the answer? Answer: “No.” 3. What damage is plaintiff Jerry Bunch entitled to recover? Answer: “$5,000.” 4.

<p>Appeal by defendant from Whedbee, J., at June Term, 1917, of Edge-combe.</p> <p>This is an action against tbe administrator of Mamie Faulkner upon a note for tbe purchase-of an Edison machine. Tbe defense set up by tbe administrator is that tbe note was void because contrary to public Xoolicy. Counsel agreed upon tbe following statement of facts:</p> <p>“That defendant’s intestate was on 18 September, 1916, and several years prior thereto, a public prostitute, and was on said date carrying-on her ‘trade at her home in Princeville, across tbe river from tbe town of Tarboro; that plaintiff knew by general reputation at tbe time the paper-writing set forth in tbe complaint was executed that tbe defendant’s intestate was a prostitute, and, .knowing such, sold her tbe musical instrument referred to, delivered it and records to her home in Prince-ville, and bad her execute tbe paper-writing referred to in section 1 of tbe complaint; that plaintiff bad no interest in tbe business of defendant’s intestate and in no way aided her in carrying it on, other than, tbe mere sale of tbe musical instrument to her might be said to do so; that tbe sale to her was in tbe usual course of business and similar in. terms and in every way to other sales made by him from time to time;. that tbe plaintiff is a retail dealer of pianos and talking machines in-tbe town of Tarboro, N. 0.; that tbe machine in question was of the character in general use and bad no slot attachment.”</p>

Appeal by plaintiff from Wheclbee, J., at June Term, 1917, of Mae-TIN. On 14 October, 1914, the defendant Nannie B. Roberson, wife of W. R. Roberson, contracted in writing, without written assent of her husband, with the plaintiff to sell him a tract of land, her separate property, at the price of $2,500. After the delivery of said contract the defendant Nannie B. Roberson, with the written assent of her husband, conveyed the land to the defendant M. W. Ballard.

ActioN to try tbe title, to land, tbe whole controversy being dependent on tbe location of tbe dividing line between tbe lot of tbe plaintiffs and of tbe defendants. Sallie Carr Thompson, wife of ~W. A. Thompson, in 1909 owned a lot in Aurora, N. 0., lying on tbe east side of Fourth Street and north side of Middle Street.

<p>Appeal by plaintiff from Daniels, J., at Spring Term, 1917, of Gates.</p>

Civil actioN tried before bis Honor, M. H. Justice, judge, and a jury, at June Special Term, 1917, of tbe Superior Court of Pasquotank. Tbe action was to recover damages for physical injuries received by plaintiff, an employee of defendant, while engaged in loading logs onto oars and by reason of alleged negligence of defendant in not supplying plaintiff with a cant book fit and proper for tlie purpose.

<p>1. Master and Servant — Contracts—Independent Contractor — Employment at Will — Hiring Employees.</p> <p>One wbo .is employed by tbe owner of a lumber manufacturing plant to cut latbs from lumber furnished by tbe owner with machinery at his mills, at so much per thousand, the employment terminable at the will of the owner, is not an independent contractor within the meaning of the principle that the owner is not liable for the negligence of his independent contractor causing injury to the latter’s employees, and the fact that the contractor hired and discharged the employees is not controlling.</p> <p>2. Master and Servant — Negligence—Statutes—Child Labor — Employment.</p> <p>It is negligence on the part of the owner of a lumber manufacturing plant to allow a boy ten years of age to wort in his power-driven mill, at a dangerous place, where the live rollers to carry the lumber to the various machines were left unboxed and exposed, causing the injury complained of, which occurred while the boy was engaged at his work with the knowledge of his superintendent, who made’ no objection.</p> <p>3. Master and Servant — Independent Contractor — Contracts—Negligence— Dangerous Instrumentalities.</p> <p>The master’s nonliability for the acts of an independent contractor does not obtain when the work engaged in is inherently dangerous, and the injury complained of was caused by the negligence of the master himself in respect to conditions under his control.</p> <p>4. Negligence — Child Labor — Manufacturing Plants — Statutes—Master and Servant — Contributory Negligence.</p> <p>The provisions of our statutes, Rev., sec. 1981 (a), forbidding employment of children under 12 years of age at any factory, etc., and Rev., see. 3366, amended in 1907, making it a misdemeanor for such factory to knowingly and willfully employ a child under that age, include within their provisions the working of children under the forbidden age at such places with the actual or special knowledge of the owner or his superintendent; making it negligence per se when such child is injured, with the presumption that it was not guilty of contributory negligence.</p> <p>5. Contracts — Independent Contractor — Trials — Evidence — Questions for Jury.</p> <p>When the evidence is conflicting, the question of independent contractor is one for the jury.</p>

<p>Appeal by plaintiffs from Daniels, J., at May Term, 1917, of Hyde.</p>

<p>Master and Servant — Negligence—Ordinary Tools — Defects—Duty of Master — Employer and Employee.</p> <p>When plaintiff has been employed as fireman- for the defendant’s stationary engine, with duty to keep the fire going, shake the grate, etc., to which latter a- rod or bar was attached on which was an iron “spigot,” or peg, which worked through a slot on a detached bar of iron '3 feet long, used as a handle for the purpose of shaking the grate beneath the boiler; and there is evidence that this spigot had been broken off or bent so that the regular handle or bar would not fit; that the plaintiff’s boss furnished him and required him to do this work with an iron bar taken from the engine 3% feet long, weighing 10 or 15 pounds, with a slot too large for the spigot, giving it play, making its use dangerous for the purpose, and the plaintiff was injured in consequence of its slipping from the spigot, and that the boss had previously been warned of the danger in its use, and had failed in his promise to make it safe: Held, the principle that the.employer is not held responsible for defects of ordinary tools to be used in the ordinary way has no application, and the evidence presents the issue of actionable negligence for the determination of the jury. See Rogerson v. Honte, ante, 27.</p>

<p>Civil actioN tried before Justice, J., at the June Special Term, 1917, of PASQUOTANK.</p> <p>This is an action instituted by the First National Bank of Elizabeth City against Eobert Brockett, of High Point, N. 0., to recover the sum of $1,335.70, being the amount of a check drawn by Eobert Brockett on 21 August, 1915, and paid to 0. Syer & Co., of Norfolk, Va., and deposited with the plaintiff on the account of 0. Syer & Co., after being-endorsed by C. Syer & Co. The evidence tends to prove that Brockett received credit for the full sum and 0. Syer & Co. received credit for the full $1,335.70 from the plaintiff bank. The defendant admits drawing the check and owing 0. Syer & Co., and that he has never paid it, and has refused to pay it.</p> <p>The check was not produced at the trial,' and at the conclusion of the evidence his Honor entered judgment of nonsuit on the ground that there was no evidence of the loss of the check, and the plaintiff excepted and appealed.</p>

<p>1. Negligence — Landlord and Tenant — Damages — Joint Cause — Proximate-Cause.</p> <p>AVhere under tbe terms of bis lease the landlord has assumed the responsibility of making repairs of tbe leased premises with diligence and has charge thereof, through his employee or janitors, and has rented an office over a store therein, with a defective or choked drain pipe, to a dentist, which he had for.years failed to inspect; in an action by the lessee of the store against him and the lessee of the office,, evidence that the dentist had provided an insufficient outlet for the water flowing from his cuspidor, and that he had permitted the overflow from the cuspidor to continue all night, and from this and the choked condition of the drain the water overflowed and went through the floor and injured plaintiffs, stock of goods, is sufficient to sustain a verdict against both defendants jointly, the negligence of each, if established, being the proximate cause of' the injury.</p> <p>2. Same — Evidence—Instructions—Trials.</p> <p>Where there is evidence of negligence on the part of a landlord in failing to properly repair a drain pipe in the office of his tenant, and of negligence on the part of the tenant, a dentist, in failing to make proper connection therewith for the waste water flowing from his cuspidor, and that he negligently permitted the water to continue to flow all night and damage was caused to the plaintiffs goods, the lessee of the store beneath, in an action by the lessee of the store against the landlord and his codefend-ant, the dentist, a charge is proper, that if the codefendant installed a system for tire waste that was unsafe, which, a reasonably prudent man would not have done and which was the proximate cause of the injury, the jury should render a verdict against him.</p>

<p>Appeal by defendants from Bond, J., at Special May Term, 1917, of OURRITTTCK.</p>

<p>Constitutional Law — Amendments, 1916 — School Districts — Special Statutes — Statutes—Corporations.</p> <p>The amendment of 1916 to Article VIII, section 1, of the Constitution withdraws from the Legislature the power to create a corporation, or to extend, alter, or amend its charter by special act, and does not affect an act of the Legislature, passed since it went into effect, authorizing a school district theretofore formed under the provisions of Revisal, sec. 4115, to issue bonds for school purposes with the consent of its voters. As to whether corporations of this character come within the meaning of the amendment as g«asi-municipal corporations, quiere?</p>

<p>1. Malicious Prosecution — Malice—Evidence—Damages—Trials.</p> <p>Where the evidence is sufficient for the recovery of punitive damages in an action of malicious prosecution, testimony of the defendant that he believed the charge in the indictment to be true at the time is properly admitted on the question of the absence of malice and in diminution of the damages recoverable.</p> <p>2. Appeal and Error — Malicious Prosecution — Punitive Damages — Objections and Exceptions — Acquiescence—Issues.</p> <p>Where, with the consent and acquiescence of the plaintiff in an action for malicious prosecution, the issue of punitive damages has been submitted to the jury, it is not open to his objection that defendant was permitted to testify, in diminution of the damages, that he believed the charge in the indictment to be true at the time.</p> <p>3. Malicious Prosecution — Punitive Damages — Actual Malice.— Evidence— Trials.</p> <p>In order to recover exemplary or punitive damages in an action for malicious prosecution, the plaintiff must show actual malice on the part of the defendant in prosecuting the criminal action against him, importing an evil intent or wish or design to vex, annoy, or injure him.</p> <p>4. Appeal and Error — Objections and Exceptions — Briefs—Rules of Court.</p> <p>Exceptions not set up in the appellant’s brief, or in support of which no reason or argument is therein stated or authority cited, will be taken as abandoned in the Supreme Court under Rule 4. 164 N. C., 551.</p> <p>5. Malicious Prosecution — Larceny — Other Thefts — Evidence — Criminal Intent — Trials.</p> <p>In an action to recover damages for malicious prosecution of a criminal action for the larceny of-a cow, evidence is competent to show that the defendant in the criminal action and the plaintiff in the civil one had taken at other times cattle to his premises, under similar circumstances, when relevant to his criminal intent in the matter under consideration in the present action. S. v. Murphy, 84 N. C., 742 ; S. v. Walton, 114 N. C., 783, cited and approved.</p>

Civil actioN tried before Whedbee, J., at April Term, 1917, of Edge-COTMBE. By consent, tbe court found tbe facts as set out in tbe answer to be true, and tbat those not found in tbe answer, but set forth in tbe complaint, are also true. Tbe purpose of tbe action is to determine whether certain moneys listed for taxation by tbe clerk of tbe Superior Court, 1 May, 1915, are liable to taxation.

Civil actioN tried before Justice, J., at tbe June Special Term, 1917, of PasquotaNK. This is an action to enforce a claim and lien for material furnished by the plaintiff and used in the construction of a building for the defendant Hospital Company by the defendant Jones, contractor.

Appeal by defendant from Gox, J., at February Term, 1917, of JOHNSTON. This is an action by a passenger for wrongful ejection from defendant’s train. The plaintiff, who lived with his father near Selma, N. 0., was attending school at Dayton, Va., when he received a telegram that his father was dead. lie borrowed money to buy his ticket home, and at Harrisonburg, Ya., on Baltimore and Ohio Railroad, the nearest depot, he bought a through ticket to Selma, N. 0.

Civil actioh tried before Whedbee, J., at the ¿Tune Term, 1917, of Edgecombe. This is an action to determine the title to land. Francis L. Bond'was formerly the owner of the land in controversy.

Civil actioN tried before Whedbee, J., at March .Term, 1917, of MaetiN. • A jury trial being waived, the court found tbe following facts: 1.

<p>Appeal by defendant from Stacy, J., at January Special Term, 1917, of Lee.</p>

<p>Civil actioN tried before Whedbee, J., at April Term, 1917, of Edge-COMBE.</p> <p>Plaintiff appealed.</p>

<p>1. Reference — Exceptions—Trial by Jury — Issues—Waiver.</p> <p>A party who has excepted to a compulsory reference and to the report of the referee must also file the issues upon which he demands a trial by jury; and when he does so after the report has been filed and received, without leave of court, it is too late to preserve the right to a jury.</p> <p>2. Actions — Misjoinder'—Pleadings—Demurrer Ore Tenus.</p> <p>Objection to the misjoinder of liarties or of causes of action must be taken by answer or demurrer in the trial court, or the objection is waived. Rev., 478.</p>

Civil ACTION tried before Daniels, J., and a jury, at February Term, 1917, of Beaueoet. Tbe action was to recover damages for loss of plaintiff’s goods shipped over defendant’s road and held by company as common carrier in’ its warehouse at Washington, N. 0., where they were destroyed, the warehouse being also wrecked, in the wind and rainstorm in that vicinity 3 September, 1913.

<p>Appeal by defendant Insurance Company from O. II. Allen, J., at June Term, 1917, of VaNCE.</p>

Civil actioN tried before Qox, J., at March Term, 1917, of Lee.

Civil actioN beard on demurrer to complaint before Kerr, J., at July Term, 1917, of Camden. Tbe complaint alleged tbat plaintiffs were holders, by proper conveyances, of tbe estate of Alfred Evans and Rboda Sawyer, wbo beld tbe land under tbe last will and testament of 'William Gr.

<p>1. Commerce — Telegraphs — Congressional Acts — Federal Decisions — Constitutional Law.</p> <p>It is the duty of this Court to follow the decisions of the Supreme Court of the United States, upon questions involved in interstate commerce, where Congress has assumed control of the matter relating thereto, and involved in the litigation. Const., Art. I, secs. 3 and 4.</p> <p>2. Commerce — Telegraphs — Congressional Acts — Mental Anguish — Negligence — Contracts.</p> <p>The contract entered into by the sender of a telegram with the company includes both the transmission and delivery of the message; and Congress having assumed the entire control of the field with relation to interstate messages by telegraph and telephone companies (act of Congress, 18 June, 1910), the decisions of the Supreme Court of the United States respecting such messages are controlling in the courts of this State; and thereunder a recovery of damages for mental anguish alone, where there was no injury to the person, property, health, or reputation of the plaintiff cannot be had, whether the negligence occurred in this State or elsewhere along the route of the transmission of the message.</p>

Civil actioN tried before Daniels, J., and a jury, at April Term,. 1917, of Beaotoet. Tbe action was to recover damages caused by alleged negligence of defendant growing out of tbe bad condition of its streets. On denial of liability and plea of, contributory negligence, tbe jury rendered the-following verdict: 1. Was plaintiff injured by tbe negligence of defendant, as alleged?' Answer: “Yes.” 2.

<p>Civil actioN tried before Daniels, J., at the January Term, 1917, of WASHINGTON.</p>

<p>Civil actioN tried before Whedbee, J., at the April Term, 1917, of Edgecombe.</p> <p>This is an action to recover a tract of land known as the Buffin tract, •on the following facts:</p> <p>Moses Baker, late of Edgecombe County, North Carolina, died in said ■county and State, leaving a last will and testament, which is duly recorded in the office of the clerk of the Superior Court of Edgecombe in "Will Book G, page 146 et seq., the pertinent paragraphs of which read .as follows:</p> <p>Item 12: I give and bequeath unto my grandsons, John Baker and Jesse Baker, negro man Ben and my “Buffin tract” of land adjoining the lands of Samuel P. Jenkins and containing about 200 acres, also two shares each ’Wilmington and E. E. E. 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 should 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>Item 13: I authorize, direct, and empower my executor to sell all the balance or residue of my property of every description, real, personal, and mixed, and in making sale of same, I give to my executor full discretion to sell publicly or privately, for cash or on time, as he may deem .advisable.</p> <p>Item 14: As to the money which shall come to the hands of my executor from sales of property, debts due me, and all other sources, I provide as follows, to wit: They shall be applied, first, to the payment of my just debts, funeral expenses, and such as shall be necessary for the .•settlement of my estate; secondly, to the satisfaction of the legacy of -$200 to my wife; and as to. the residue of the said moneys, I give and bequeath them as follows, viz.: One-fourth part to my son 'William S. Baker, one-fourth part to my grandsons John Baker and Jesse Baker, with the same provisos and exceptions as are made in item 12; one-fourth part to the said William S. Baker, as trustee, for the sole and ■•separate use of the said Polly Pitt during her natural life, and after her death for the benefit of her children and grandchildren, with the ■exception of Leah Armstrong and Thomas Pitt, as provided in item 5, the said Baker to have power to invest the same in property or bank stock, or to loan it out at his discretion; and the other fourth to George W. Walker and Yesta Walker, on the same terms and conditions, with -the same provisos, and to such other persons as are contained and set Torth in item 9.</p> <p>I hereby nominate, constitute, and appoint’ my son "William S. Baker executor of this my last will and testament.</p> <p>•Codicil: I hereby revoke and annul the devise or bequest of an undivided one-half of the “Ruffin tract of land” unto my grandson John Baker contained in item 12 of said will, and in lieu thereof I give and devise unto the said John Baker the tract of land which I have purchased since the making of the said will from Dawson and Bytha Brown, adjoining the lands of Mrs. Whitehead and Mrs. Cohoon and the heirs of W. Gr. Baker, and containing 137 acres, more or less. If the said John shall die without issue, it is my will and desire in that event the said land shall go to his brother Jesse Baker.</p> <p>The will is dated 28 August, 1854; the codicil, 4 November, 1855, and same was probated August Term, 1857.</p> <p>• John and Jesse died-without issue — Jesse dying in 1864, John in 1913. Jesse died testate, and in his will attempted to devise the lands in controversy to his brother John Baker. In 1865, John executed a deed, conveying the lands in controversy to the defendant’s ancestors, and the defendants have been in possession ever since. The plaintiffs are John and Jesse’s next of kin within the terms of item 12. The title to said Ruffin tract is out of the State.</p> <p>His Honor, being of opinion that the plaintiffs were not entitled to recover, allowed, at the conclusion of all the evidence, the defendants’ motion for judgment as of, nonsuit, and plaintiffs appealed.</p>

Civil aotioN tried before Whedbee, J., at April Term, 1917, of Edge combe. At tbe conclusion of tbe evidence tbe court sustained a motion to nonsuit as to tbe town of Tarboro, to wbicb plaintiff excepted and appealed. Plaintiff submitted thereupon to a voluntary nonsuit as to Joe Ervin.

Civil actioN tried before Whedbee, J., at tbe February Term, 1917, of Nash. Tbis is an action by an executor for tbe construction of a will and for advice as to tbe distribution of tbe proceeds of tbe sale of a tract of land.

, at January Term, 1917, of Chatham, upon these issues: 1. Was the shipment of freight described in the pleadings delivered to the plaintiff? Answer: “No.” 2. Was claim for loss of shipment filed with the defendant at a point ■of destination or at point of origin within four months after a reasonable time for delivery has elapsed ? Answer: “Yes.” 3. Tn what sum is defendant indebted to plaintiff? Answer: “$15.51.” From the judgment rendered, defendant appealed.

Civil action tried before Gox, J., at the April Term, 1917, of Johnston. This is an action in the nature of a quo warranto, instituted by the plaintiffs, the relators, to recover possession of the offices of the Township Highway Commissioners of Ingrams Township in Johnston County. His Honor rendered judgment in favor of the plaintiff, and the defendants appealed.

Civil actioN tried before Stacy, J., at tbe February Term, 1917, of HaRNETT. This is an action to recover $350 and for damages.

<p>1. Partnership — Railroads — Contracts—Timber—Independent Contractor — Fires.</p> <p>Where a party owning a timber contract, with the right to operate a railroad thereon, enters into a contract with another to furnish the railroad track and equipment, and with yet another to do the cutting and hauling of the timber, the liability for negligence of the latter in causing damages by fire to the plaintiff’s land is not confined solely to him, notwithstanding a clause in the tripartite agreement that he was to do this work as an independent contractor, it appearing therein that each was to be compensated out of the profits, and the liability of each is that arising under a partnership.</p> <p>2. Railroads — Lessor and Lessee — Negligence—Fires.</p> <p>Where the owner of a railroad on the lands of another under a timber contract agrees that yet another should cut the timber and haul the same over the railroad, and have control over its operation, fixing the compensation of each out of the profits, the arrangement amounts to a lease of the railroad property, making the lessor responsible in damages caused by lessee’s negligence in setting fire to the plaintiff's lands.</p>

MotioN to set aside judgment made in tbe Superior Court, Hertford County, and beard before bis Honor, 0. II. Allen, Judge, at February Term, 1917.. On tbe bearing it appeared that theretofore, to wit, at Fall Term, 19 IS, plaintiff bad recovered judgment against defendants in tbe sum of $3,029.94; that defendants appealed to Supreme Court.

<p>1. Railroads — Master and Servant — Public Crossings — Flagman — Interstate Trains — Commerce.</p> <p>. Tbe plaintiff was employed by tbe defendant railroad company to warn witb flags by day, and witb a lantern by nigbt, pedestrians of approaching trains at a public crossing in a town, and by signalling to tbe engineer of an approáching train, and to cooperate witb bim in tbe movement of tbe train before making tbe crossing, so as to prevent injury to tbe persons on tbe train and tbe people using tbe crossing. There was conflicting evidence, and tbe plaintiff, having thus coBperated witb tbe conductor on an interstate train, was injured by tbe defendant’s negligence when he bad crossed tbe platform on this train and was on the lowest step of the car for tbe performance of bis duty on tbe other side, witb reference to a second track there. Upon tbe trial in tbe State Court under tbe Federal Employers’ Liability Act, tbe evidence is sufficient upon tbe question of employment in interstate commerce, and to sustain a verdict in plaintiff’s favor thereunder, or under our own statute of like effect. Laws of 1913, chap. 6.</p> <p>2. Evidence — Corroboration—Changed Conditions — Admissions — Railroads.</p> <p>Evidence in corroboration of plaintiff’s testimony, in bis action to recover damages for a personal injury, involving tbe alleged negligent condition of tbe defendant railroad company’s track at tbe time, that since tbe injury tbe condition of the track bad been changed, is competent, when it appears that it was confined to within proper limits and was not permitted to be considered in tbe light of an implied admission of negligence.</p>

<p>Civil actioN tried before 0. 11. Allen, J., at Spring Term, 1917, of HERTFORD.</p> <p>This was a proceeding, brought under section 1590 of the Eevisal, to sell certain lands in Hertford County devised under item 6 of the codicil thereto of the will of E. D. Bridger.</p> <p>The appellants claim that under the will of Josiah Bridger the first tract of land devised in item 6 of the will of E. D. Bridger was devised by said Josiah Bridger to his son, Carter Bridger; that Carter Bridger died intestate and left three children: E. D. Bridger, Martha Eebecca .(Moore), and Charlotte Ann (Matthews); that Martha Eebecca Moore (nee Bridger) was the mother of appellants; that she died 16 May, 1893, in the State of Illinois, having removed from North Carolina wben a child about 13 years of age. The depositions of Mrs. Gaddis and Mrs. Phelps, both daughters of Mrs. Moore, were taken and offered in evidence. Both of these witnesses testify that their mother was Martha Rebecca Moore; that she told them her father was Carter Bridger; that she was born in Hertford County, and that R. E. Bridger was. her brother, and she had a sister, Charlotte Ann, who married . Matthews.</p> <p>His Honor sustained the objection of plaintiffs to certain questions and answers in the deposition, and charged the jury to answer the issue submitted “No.” That issue was as follows: “Have the heirs of Rebecca Moore any interest in the land described in the complaint in this cause ?”</p> <p>The defendants excepted to the rulings of his Honor on the question of evidence, and also to his instruction to the jury.</p> <p>Josiah Bridger, who was the father of Carter Bridger and the grandfather of R. D. Bridger, died about 1831, leaving a will in which he devised a tract of land as follows:</p> <p>Item 5. “I give and bequeath to my son Carter one feather bed and furniture and one hundred acres of land, more or less, known by the name of the Old Place, adjoining John Jones and Colonel Wynns.”</p> <p>Item 10. “If my son Carter in like manner should die without heir lawfully begotten of his body, I wish the land before given to my said son Carter to descend to my two sons, William and James, share and share alike.”</p> <p>Carter Bridger died about 1838, leaving R. D. Bridger as one of his heirs at law, the appellants also claiming to be heirs at law of Carter Bridger and Josiah Bridger.</p> <p>R. D. Bridger died about 1905, leaving a will in which he devised the land in controversy to the children of Sarah Jane Eutrell, the land being described in said devise as “the tract of land on which their mother lived at her death and came by my father.”</p> <p>The appellants offered no evidence identifying the land described in the sixth item of the will of R. D. Bridger as the same land described in the fifth item of the will of Josiah Bridger, other than that contained in the devises themselves.</p> <p>There was a verdict and judgment in favor of the plaintiff, and the petitioners claiming to be heirs of Martha Rebecca Moore excepted and appealed.</p>

Civil actiost tried before Allen, J., at Spring Term, 1917, of Hert-fobd. Demurrer to the complaint was made ore tonus upon the ground that no cause of action is stated, and was sustained and action dismissed. Plaintiff appealed.

<p>1. Deeds and Conveyances — Surface Lines — Overhanging Buildings — Ouster —Remedy.</p> <p>A call in a conveyance of a city lot to “a point on a line of the northern edge of” a brick store, the other lines called for being upon the surface of the ground, is to a point on the surface of the ground; and where the walls of the building appreciably incline upward over the lot conveyed, in this case four inches at the/ top, so as to prevent the use of the lot for an intended building, the encroachment amounts to an ouster, giving the owner a right of action.</p> <p>2..Same — Demurrer—Ascertainment of Facts.</p> <p>The specific rights in this case of the owner whose land has been encroached upon by an appreciably overhanging wall of an adjoining brick building, on appeal from a judgment sustaining a demurrer to the complaint, will await the determination of the facts in the lower court.</p> <p>3. Pleadings — Relief—Facts Alleged.</p> <p>Under our system of pleadings, the relief demanded in the complaint does not necessarily control the remedy, but it will be ascertained and granted upon the facts alleged and proved.</p>

<p>1. Carriers of Goods — Damages—Notice—Connecting Lines — Commerce.</p> <p>Sufficient notice of damages to the initial carrier of an interstate shipment of goods is sufficient notice to the connecting carrier in the line of carriage.</p> <p>:2. Appeal and Error — Pleadings—Amendments—Court’s Discretion.</p> <p>It is discretionary with the trial court, in an action for damages to a shipment of goods by interstate carriage, to permit an amendment alleging that written notice had been given within the four months.</p> <p>3. Carriers of Goods — Connecting Lines — Negligence—Commerce.</p> <p>Under the Carmack Amendment, a connecting carrier in an interstate shipment is liable for damages for its negligence therein, and may be sued alone at plaintiff’s option; and while the initial carrier may also be held liable, a direction of the court exculpating the latter from damages does not necessarily relieve the former from liability.</p> <p>4. Carriers of Goods — Negligence—“Act of God” — Trials—Evidence—Questions for Jury.</p> <p>Where the evidence is conflicting as to whether damage was caused to a shipment of perishable goods by the negligent delay of a connecting carrier, or by a storm, “an act of God,” or whether the shipment would otherwise have reached its destination in time to have avoided the injury, the issue is properly left to the determination of the jury.</p>

<p>Appeal by defendants from Stacy, J., at April Term, 1917, of OkaVEN.</p>

Civil actioN beard on case agreed before bis Honor, W. A. Devin, J., .•at June Term, 1917, of Wake.

Suit for sale of land for partition, transferred to Civil Issue Docket and tried before his Honor, M. II. Justice, J., and a jury, at June Special Term, 1917, of PasquotaNK. It appeared that the property described in the petition belonged to Joshua Fleming, deceased, who was a slave before the termination of the Civil War.

Civil actioN, tried before Daniels, J., at February Term, 1917, of' BEAUFORT. This is an action to recover damages for personal injury, caused, as the plaintiff alleges, by the negligence of the defendant, in that, while getting on the train at Pinetown as a passenger, the defendant negligently caused its train to move suddenly and with a violent jerk, which caused him to fall and to be seriously injured.

Civil actioN, in the nature of claim and delivery, to recover possession of certain personal property described in a mortgage from defendant to one Hampton, and assigned to plaintiff, tried-at May (Special) Term, 1917, Bond, J., in Cueeituce: Superior Court. At tbe time of commencing tbe action tbe debt was past due. These issues were submitted: 1. What balance, if anything, is due by defendant Bray to plaintiff Johnson on note referred to in complaint?

Actioh tried before Allen, J., at November Term, 1916, of WilsoN, upon tírese issues: 1. Did tbe defendant, tbe Louisville and Nashville Railroad Company, agree with the plaintiff that it would furnish a car of sufficient size and strength to carry 26 head of horses and mules from East St. Louis, in the State of Illinois, to Wilson, in the State of North Carolina, safely and so that said horses and mules would not be crowded therein? Answer: Yes. 2.

, at January Term, 1917, of HabNETt. This is an action instituted by N. McLaughlin and the Elm City Lumber Company, as plaintiffs, to recover damages for the negligent burning of certain lumber. • The fire complained of, which occurred 11 November, 1912, destroyed the saw- and planing-mills of the plaintiff, N. McLaughlin, and the greater part of the lumber in the yard thereof.

<p>1. Master and Servant — Employer and Employee — Safe Place to Work— Defects — Trials—Evidence—Questions for Jury.</p> <p>It is tlie duty of tlie master to provide liis servant a sefe place to work in tlie iierformance of liis duties; and where there is evidence tending to show that an inexperienced employee was directed by his employer to remove the tin from the roof of a closely sheathed shed, which fell with and injured him by reason of the fact that only the tin attached to the adjoining building held t.lie shed and kept it from falling over, of which fact the employer, was unaware and could not reasonably have seen, and the shed fell without liis knowing why: Held, it is sufficient upon the issue of defendant’s actionable negligence.</p> <p>2. Master and Servant — Employer and Employee — Safe Place to Work— Assurance of Master — Assumption of Risks.</p> <p>Where the place furnished by the master on which the servant is required to work in the course of his emxiloyment has a hidden defect therein of which the servant was unaware and which he could not have reasonably ascertained, and which caused an injury, the subject of his action for damages; and the employer instructed the employee to do this particular work, assuring him, upon his inquiry, of the safety of the place and of the work to be done thereon: Hold, the direction .thus given, with the assurance of the master of its safety, relieved the employee of assuming the risk in doing the work, there being nothing in the appearance of the place which would have caused a man of reasonable prudence to have refused to do the work thereon.</p> <p>3.- Master and Servant — Employer and Employee — Safe Place to Work— Evidence — Opinion—Trials—Questions for Jury.</p> <p>Where damages in an action are sought for the failure of the master to provide a safe place for his employee to work, testimony of witnesses that the place was a safe one is incompetent, that being a question for, the court and jury upon conflicting evidence.</p>

Civil actioN, tried at February Term, 1917, o£ Haenbtt Superior Court, before Stacy, J., upon these issues: 1. Did the plaintiff, during the year 1911,.sell and deliver' to the defendant E. R. Coats goods, merchandise, supplies, fertilizer, etc., including a part of 1909 and 1910 account to the amount of $1,275.94? Answer: Tes. 2.

<p>Partnership — Dissolution—New Agreement — Profits—Individual Liability.</p> <p>Where a partnership, A. & B., has been dissolved by the mutual consent of the parties, who thereupon enter into another written agreement, assuming some of the contracts of the former partnership, and changing its name to A. & Co., giving the management to A. and providing specifically that B. shall receive “his pro rata share of the net profits” of the business, the new arrangement having been signed by both of them, but is in many respects ambiguous or unintelligible: Held,, by the clear provision of the contract, a partnership has been created, making B. liable for the debts incurred in the business, there being nothing to show the profits were looked to only as a method of compensating B. for services rendered.</p> <p>Brown, J., dissenting.</p>

Crvix. action to recover on two tornado insurance policies of standard form, Nos. 2105 and 2106, aggregating $4,000, tried before bis Honor, W. P. Stacy, J., and a jury, at April Term, 1917/ of Pitt. At a former, trial, there was recovery by plaintiff, and, on appeal, a new trial was awarded for an erroneous reception of evidence. See Johnson v. Ins. Oo., 172 N. C., 143.

Civil actioN tried before Stacy, J., at March Term, 1917, of Pitt, upon these issues-: 1. Was the plaintiff tbe owner and entitled to the immediate possession of the cow described in the complaint at the institution of this suit ? Answer: “Yes.” 2. What was the value of said cow at the time of the sheriff’s seizure ? Answer: “$25.” 3. Was the cow’s death occasioned by the negligence of the defendant?

<p>Civil ACTION, tried before Stacy, J., and a jury, at March Term, 1917, of Pitt.</p> <p>Service of process baying been obtained as to defendant, tbe surety company, tbe issue of liability was determined only as to said surety.</p> <p>At tbe close of plaintiff’s testimony, on motion, there was judgment of nonsuit, and plaintiff, baying duly excepted, appealed.</p>

Civil actioN, tried before Stacy, J., at March Term, 1917, of Gbeeete. This is a proceeding instituted by the administrator of Harriet Susan Hill against her heirs and the heirs of Hymb.ric Hill to sell land for assets to pay the debts of said Harriet Susan Hill. The land in controversy formerly belonged to Hymbric Hill, who died, leaving surviving him three children, Harriet Susan Hill, Huldah Ann Hill, and Sarah John Hill, as his only heirs at law.

<p>ActioN for damages, tried before Harding, J., at May Term, 1917, of Pitt.</p> <p>Plaintiff appealed.</p>

Civil actioN, beard on exceptions to report of referee, before Stacy, J., at March Term, 1917, of Pitt. •The principal action was instituted by plaintiff, a contractor, who claimed that, having entered into a contract with the owners to build an office building at a contract price of $40,328.80, he did the work on time, to a stated period, when defendants wrongfully refused to pay him an installment due, and he was forced to abandon the work, and he sued for certain labor…

Civil actiow for damages, tried before Lyon, J., and a inry, at April Term, 1917, of Owslow, This action was brought to recover damages for burning plaintiffs’ woods, which they contend was caused by the defendant’s negligence.

<p>Appeal from Lyon, J., at chambers, 29 May, 1917, from Dupliít.</p>

Civil actioN, heard by Devin, J., upon the report of referee, at October Term, 1916, of Sampsoh.

<p>1. Actions — Deeds and Conveyances — Warranties—Parties—Predecessors in Title — Statutes.</p> <p>A grantee of lands against whom a recovery has been had. for a part thereof may sue his grantee for damages upon the covenants and warranty in his deed, and the successive warrantors in his chain of title, separately or in the same action, the subject-matter being the same, our Code system not favoring a multiplicity of suits.</p> <p>2. Parties, Unnecessary — Motions to Strike Out — Demurrer.</p> <p>Where one who is not a necessary party has been made a defendant to an action upon a warranty in a deed, his remedy is on motion to strike out his name, and not by demurrer; and a joint demurrer by two defendants, with a good cause of action stated as to one, is bad.</p>

Civil actioN, tried before Daniels, J., and a jury, at January Term, 1917, of PasquotaNK. Tbe action was brought to recover $469.40 as damages for refusing to receive a certain lot of potatoes which, it is alleged, the defendants contracted to buy. The case was here before, and is reported in 172 N. C., at p. 1.

Civil action, beard on case agreed, before Whedbee, J., at April Term, 1917, of Eegecombe. It appears that plaintiff company sold to the Tarboro Cotton Factory, to be used in operating the mill, a bill of coal to the amount of $400. The cotton mill having become insolvent, and plaintiff’s debt remaining unpaid, be instituted tbis action, seeking to bold individual defendants pérsonally liable for tbe debt.

Civil actioN, tried before 0. H. Allen, J., at June Term, 1917, of Malirax.

<p>Civil actioN, tried before O. H. Allen, J., at April Term, 1917, of HERTFORD.</p> <p>Judgment for defendant, and plaintiff appealed.</p>

Civil actioh, tried before Stacy, J., at April Term, 1917, of Pitt, upon, these issues: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. Was the plaintiff employed by the defendant in interstate commerce, and engaged in such commerce at the time of his injury? Answer: Yes. 3. Did the plaintiff voluntarily assume risk of injury, as alleged in the answer? Answer: No. 4.

<p>Civil actiok tried before Harding, J., at May Term, 1917, of Pitt.</p> <p>Erom the judgment rendered, defendant appealed.</p>

Civil action, tried before Stacy, at June Term, 1917, of Cak-teret, upon these issues: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. 2. What damages, if any, 'is the plaintiff entitled to recover ? Answer: $950. 3. Is the plaintiff’s cause of action, or any part thereof, barred by the statute of limitations? Answer: No. 4.

<p>1. Appeal and Error — New Trials — Motions—Newly Discovered Evidence— Superior Courts — Jurisdiction—Statutes.</p> <p>By tbe act of 1887, a case appealed from remains in tbe Superior Court, and tbougb a motion for a new trial may be made in tbe Supreme Court while tbe appeal is pending, it nevertheless may be made in tbe Superior Court at tbe next term after affirmation of its action and before final judgment entered therein in pursuance of tbe certificate.</p> <p>2. Courts — Jurisdiction — Superior Courts — Motions — New Trial — Court’s Discretion — Appeal and Error.</p> <p>A motion properly made in tbe Superior Court for a new trial for newly discovered evidence is addressed to tbe sound discretion of that court, and is not reviewable on appeal unless this discretion has been abused.</p>

Civil ACTION to sell land affected with a contingent interest, under section 1590, Revisal, heard on pleadings, record, and facts in evidence, before Lyon, J., at June Term, 1917, of LeNOIR.

Civil actioN tried before Lyon, J., at tbe April Term, 1917, of ONSLOW. Tbis is an action to recover damages for tbe alleged negligence of tbe defendant, which tbe plaintiffs claim resulted in tbe damage to their lands. Tbe specifications of negligence in tbe complaint are: 1.

, to set aside a judgment, beard at May Term, 1917, of SampsoN. Tbis is a motion to set aside a judgment by default, on tbe ground of excusable neglect. Tbe action was commenced 23 January, 1912. Tbe complaint was filed at February Term, 1914, and tbe judgment, wbicb tbe defendant asks to have sot aside, was rendered by default for tbe want of an answer, at August Term, 1916,' and tbis motion was made witbin one year thereafter.

<p>CONDEMNATION PROCEEDINGS, heard upon, appeal from the Clerk of the Superior Court of Sampson, by Stacy, J., at chambers, 24 August, 1917.</p> <p>From the judgment rendered, defendant appealed.</p>

<p>1. Courts-; — Separation of Witnesses — Appeal and Error.</p> <p>It is within the discretion of the trial judge to order a separation of the witnesses in the case, and, in the absence of abuse, is not reviewable on apeal.</p> <p>2. Courts — Discretion—Separate Witnesses — Notice—Neglect of Counsel.</p> <p>Where the judge has ordered a separation of the witnesses in the case on trial, and the attorney for a party has subpoenaed a witness, who, not having been notified, came into court and remained during the testimony of another witness, the neglect is that of the attorney to have had this witness notified; and hot having’done so, he is deemed to have waived his right to examine the witness in behalf of his client, and he may not complain that the judge, in the exercise of his discretion, refused to permit this witness to testify.</p> <p>3. Same — Contempt of Court.</p> <p>Where an order separating the witnesses at the trial has been made, and thereafter another witness has been subpoenaed, who, in ignorance of the order, attends and remains in court while another witness is testifying, he may not be adjudged in contempt of court, nor will abuse of discretion be attributable to the court in ignorance of the fact.</p> <p>4. Constitutional Law — Witnesses—Separation—Defendant’s Witnesses.</p> <p>The constitutional right of a defendant to face the witnesses against him is not violated by the judge on trial of a civil action excluding the testimony of the defendant’s own witness for remaining in court contrary to the court’s order that the witnesses in the case be separated.</p> <p>Walker, J., concurring.</p>

<p>1. Master and Servant — Safe Appliances — Contributory Negligence — Defenses — Instructions.</p> <p>It is tbe duty of an employer to furnish his employee a reasonably safe place to work, and implements and appliances reasonably safe with which to do it, which are known, approved and in general use; but ordinarily his failure to have done so will not of itself cut him off from the defense of contributory negligence on the part of his employee being injured in pursuance of the work required of him, a case of this kind not falling within the principle of the Greenlee and Trocoler cases, wherein the injury was caused by the failure of the defendant railroad companies to supply automatic car couplers.</p> <p>2. Same — Defects — Push Cars — Instructions—Continuing Negligence — Appeal and Error.</p> <p>Where the evidence is conflicting as to whether the plaintiff, an employee of the defendant, was riding, in the course of his employment, on a push car, or bogie, used chiefly for hauling steel rails for track construction, whether the car should have had a plank bottom or timbers across to lessen the aperture, whether the injury for which the damages are sought was caused by the plaintiff carelessly losing his balance, or by a tree negligently left on the right of way, it is reversible error for the trial judge to charge the jury that if the defendant was negligent in furnishing an antiquated appliance or equipment, hazardous to life and limb, and this was the proiximate cause of the injury, the negligence would be continuing and cut off the defense of contributory negligence, unless the plaintiff’s negligence amounted to recklessness.</p> <p>3. Limitation of Actions — Nonsuit—Statutes.</p> <p>Where a nonsuit is taken in an action brought within the time prescribed by the statute, the statute of limitations will not have run if suit is again brought within a year from the time of nonsuit. Rev., see. 370.</p>

II. Allen, J., heard at chambers, Lee County, 8 July, 1917. This is an action for a mandamus to compel the defendants, owners of a telephone line, to install a telephone.

Appeal by plaintiff from Gox, J., at tbe February Term, 1917, of CeaVEN. This action is for tbe recovery of a tract of land. Tbe land belonged to Robert Croom, and tbe plaintiff claims tbat upon tbe death of Robert Croom tbe land descended to Robert’s son, Isaiab Croom, wbo was tbe father of tbe plaintiff, Isaac Croom, to whom it descended upon tbe death of bis father, Isaiab.

Appeal by defendant from Harding, J., at tbe May Term, 1917, of Pitt. This is an action brought by the plaintiffs against the defendant for the recovery of damages alleged to have been sustained by them on account of the taking by the town of Greenville, for the purpose of widening Pitt Street, of a strip of land belonging, to them, which the jury found to be 85 feet by 8 8-10 feet wide at one end and 10 6-10 feet wide on the other end.

Civil actioh, tried before Lyon, J., at March Term, 1917, of DupliN, upon an agreed state of facts. From the judgment rendered, the plaintiff appealed.

Civil actioh, tried before Lyon, J., at February Term, 1917, of LeNoib, upon those issues: 1. Was the plaintiff’s person and automobile injured .by the negligence of tbe defendants? Answer: Yes. 2. Did the plaintiff, by bis own negligence, contribute to bis own injury and the injury to his automobile? Answer: No. 3. What damages, if any, is plaintiff entitled to recover of the defendants on account of injury to his person ? Answer: $1,000. 4.

<p>Appeal by defendant from Lyon, J., at March Term, 1917, of Samp-SON.</p>

<p>1. Telegraphs — Negligence—Contracts—Torts—Mental Anguish — Interstate Messages.</p> <p>An action will lie against a telegraph company failing in its public duty to promptly transmit and deliver a telegram, both in contract or tort; and where the message is intrastate, mental anguish is a legal ground for recovery of actual damages.</p> <p>2. Same — Measure of Damages.</p> <p>In an action against a telegraph company to recover damages for its negligent delay in the transmission of a message, the injured party may sue either in contract or tort, the measure of damages in the former being confined to such as were in the reasonable contemplation of the parties at the time the contract was entered into; and in the latter, such as were reasonably probable under the relevant facts existent at the time of tort committed.</p> <p>3. Same — Transmittal of Money — Pleadings—Demurrer.</p> <p>In an action against a telegraph company to recover damages for its negligent delay in transmitting by telegraph money sent by a husband to his wife with which to return home by train, it was alleged in the complaint that the defendant had been informed through its agents that the wife was away from home without money; that the telegram had been promptly transmitted,, and while it was in the defendant’s office at the terminal point! the wife, the plaintiff in the action, received another message from the defendant, transmitted from a different place from that of the first message, but in the same line of travel, announcing the death of her mother, stating the time and place of burial; that she would have attended the funeral of her mother except for the negligence of the defendant in not giving her the money, and that she had had a conversation with defendant’s agent after the telegram of transmittal had been received and in time to have attended the funeral': Held, a case for the jury as to whether there was negligence by defendant, the proximate cause of plaintiff’s injury.</p>

<p>Insurance — Policy—Assignments—Children of Two Marriages — Descriptio Personarum.</p> <p>Where the insured has assigned his policy of life insurance to the children of himself and his wife by a second marriage, giving his own name- and that .of such wife, and it appears that at the time he had children by both marriages, the naming of himself and his second wife are words descriptio personarmm, and only the children of the second marriage may take under the terms of the assignment upon the maturity of the policy by the death of the insured.</p>

Civil actioN tried before Devin, J., at March Term, 1917, of Wake. This action was brought by the University of the State against defendants to recover a lot in the city of Ealeigh, N. 0., at the northeast corner of Swain and Davie streets, where they intersect each other, which land is fully described in a certain deed registered in the county of Wake (Book 214, p. 160), where the metes and bounds are given.

Appeal by E. S. Jones from Devin, J., at May Term, 1917, of Wake. This is a special proceeding for the sale of land for partition. An order of sale was made, according to the prayer of the petition, on 27 November, 1916, and pursuant thereto the land was sold on 2 January, 1917, when the appellant, Eobert S. Jones, was the last and highest bidder, at the sum of $1,200.

Appeal by defendant from Connor, J., at Fall Term, 1917, of CuM-BEELAND. Tbis proceeding, to disbar tbe defendant, was in tbis Court (171 N. 0., 799), and tbe ruling below, that the Superior Court bad no jurisdiction, was reversed. It now comes up on appeal by tbe solicitor from a ruling that tbe facts found are not sufficient to justify disbarment of defendant.

<p>Appeal by plaintiff from Bond, J., at June Term, 1917, of BeuNS-WIOK.</p> <p>Tbis action was brought upon a note for $225 and interest. Tbe defendants admitted tbe due execution of tbe note, but claimed tbat there should be a credit entered on it for $195 which bad been wrongfully charged up by tbe bank against tbe deposits of tbe defendant, J. W. Thompson, in said bank, one being an alleged check of 9 April, 1913, for $95, and tbe other an alleged check for $100 charged against tbe defendant, J. W. Thompson, on 26 September, 1913, and denied tbe validity of said checks, which sums tbe defendants pleaded as a counterclaim.</p> <p>The court charged the jury that “Plaintiff bank having admitted receiving as a deposit the proceeds of the $225 note sued upon, the bur■den was upon the plaintiff to satisfy the jury by the preponderance of the evidence that the amount of the two checks in question had been properly paid out by the plaintiff bank upon a proper order or authority of the defendant, J. W. Thompson, and had therefore been properly •charged against him.” This is the only exception. The jury found in ■favor of the defendants, and the court rendered judgment in favor of the plaintiff for the amount of the note credited by said counterclaim.</p>

<p>Crvm actioN, tried before Bond, J., at April Term, 1917, of Oolum-jbus.</p> <p>Defendant appealed.</p>

Civil actioN, tried before Bond, J., at February Term, 1917, of New BlANOVER. The plaintiff seeks to recover the sum of $144 for the alleged shipment of a certain lot of saws ordered by the defendant. The defendant avers that the saws were to be delivered in May, but were not delivered until July of the same year, and that, after inspecting the saws, he ascertained that they were not of the kind that he had purchased, or that the plaintiff had represented them to be.

Appeal by plaintiff from Bond, J., at September Term, 1917, of CuMBERLAND. This was a motion in an action which was brought by the plaintiff to recover the sum of $1,430 for the conversion of certain personal property by the defendant belonging to the plaintiff. The necessary ancillary in arrest and bail was taken out by the plaintiff upon his deposit of the amount of $250 with the clerk in lieu of the usual prescribed bond, the clerk having fixed the amount of the deposit.

<p>1. Railroads — Lumber Roads — Independent Contractors — Evidence—Fires.</p> <p>In an action to recover fire damages to lands, defended under the doctrine of independent contractor in operating a steam-driven train, the principle relied on can have no application if the fire originated by sparks from the locomotive falling upon a foul right of way of the defendant, and especially is the doctrine not applicable when the jury have found under the evidence and a proper instruction that under an agreement between them the defendants were coprincipals.</p> <p>2. Railroads — Lumber Roads — Lessor and Lessee — Negligence.</p> <p>A lumber road used for hauling logs, etc., operated under a quasi public franchise, hauling freight for third persons, for hire, may not be leased to another so as to relieve the lessor of responsibility for the negligence of the lessee in its operation, except by express legislative sanction.</p> <p>3. Same — Master and Servant — Employer and Employee — Scope of Employment — Evidence.</p> <p>Where there is evidence that defendant’s defective locomotive, traveling over defendant’s foul right of way, set out sparks by which Are damage was caused to plaintiff’s land, and that at the time it was in charge of defendant’s general manager and answering an urgency call from another of defendant’s engines to aid in putting out fires on other lands, it is sufficient to show that the employees on the train were acting within the scope of their employment, especially when there are pertinent facts in evidence which permit the inference that in helping their neighbors they were also acting in protection of the defendant’s own property.</p>

Appeal by plaintiff from Gonnor, J., at April Term, 1917, of CUMBERLAND. In February, 1911, the defendant, MeCaskill, became indebted to the plaintiff on a note for $1,000 and interest. On default, judgment was obtained at September Term, 1915, of Cumberland, and the execution thereon was returned unsatisfied. By deed, dated 29 July, 1913, McCas-kill conveyed to his wife all the property owned by him, which was registered in Cumberland 27 September, 1913.

Civil actioN tried before Bond, J., at May Term, 1917, of New Hau-over, -upon these issues: 1. Did defendant Clute contract and agree to sell and deliver to plaintiff Cooper 1,430 bales of cotton at 10% cents per pound basis middling, as alleged in complaint? Answer: Yes. 2. Was plaintiff Cooper ready, able and willing to receive and pay for said cotton and comply with bis part of said contract ? Answer: Yes. 3.

Civil actioN, tried before O. H. Allen, J., and a jury, at March Term, 1917, of Halifax.

Appeal by plaintiff from Connor, J., at chambers, 22 September, 1917, from PeesoN. This is a controversy without action, submitted under Revisal, 803, to determine the validity of chapter., Public-Local Laws 1917, authorizing the Central Highway Commission of Person County to issue and sell bonds of said county to procure money to build and improve and maintain the public roads of said county, and to issue said bonds maturing serially at intervals of five years.

<p>1. Evidence — Letters^Handwriting.</p> <p>When tlie contents of letters written by a party to an action are relevant to tbe inquiry, it is not required that tbe witness should bave seen tbe person write before be is permitted to identify tbe letter by tbe band-writing, for it is sufficient if be can do so from correspondence formerly bad between tbem.</p> <p>2. Evidence — Lost Letters — Handwriting—Identification—Correspondence.</p> <p>' Where tbe purchaser of goods sues bis vendor for damages in bis failing to deliver tbem in accordance with Ms contract, and tbe quantity of tbe purchase is in dispute, and a letter previously written by tbe vendor to tbe purchaser is relevant to tbe inquiry, it is not required that tbe purchaser notify tbe vendor to produce a copy of tbis letter in order to introduce parol evidence of its contents, it appearing that tbe purchaser bad made proper and sufficient' search for tbe original and there is no evidence that a copy bad been made.</p> <p>3. Vendor and Purchaser — Measure of Damages — Evidence—Damages Minimized;</p> <p>Where tbe vendor sold a large quantity of cotton seed, being informed by tbe purchaser that orders for a manufactured product therefrom would be taken against tbis specific purchase, and tbe purchaser breaches tbis contract and is sued for tbe difference in tbe price agreed and that required to get tbe cotton seed elsewhere, and there is evidence that tbis was done on tbe open market at tbe then prevailing prices: Held, while tbe purchaser is required to exercise reasonable business prudence to minimize Ms loss, evidence as to a price offered another, by the vendor, less than the contract price, without indication to exact time or price or quantity, is too indefinite, and, on appeal, it being incumbent on defendant to show prejudicial error, an exception to the ruling out of the evidence will not be sustained.</p> <p>4. Evidence — Contracts — Local Customs — Burden of Proof — Vendor and Purchaser.</p> <p>While a contract may be explained and interpreted by reference to a general custom or usage, so all-prevailing, that the parties may be presumed to have contracted with reference to it, the doctrine can have no . application to a purely local custom among the merchants of a town to receive goods from the carrier at the boat landing in an unusual manner, in modification of a contract, and the burden is on the party setting up the custom to show that his adversary party knew of this custom and contracted with regard to it.</p>

Civil ACTION, from Hebtfoed, beard on return to preliminary restraining order, before bis Honor, H. W. Whedbee, Judge, presiding in tbe courts of tbe Third Judicial District, Fall Term, 1917.

Appeal by plaintiff from Connor, J., at the April Term, 1917, of CUMBERLAND. This is an action brought for the purpose of having a certain deed, absolute in form, declared to be a mortgage. At the conclusion of the evidence his Honor entered judgment of non-suit, and the plaintiff excepted and appealed.

Appeal by plaintiff from Lyon, J., at tbe Spring Term, 1917, of New HaNOVER. Tbis is an action to recover land. During tbe progress of tbe trial tbe plaintiffs offered in evidence tbe summons, complaint, answer, and judgment of nonsuit in a case begun on tbe.day of., 191. — , by Thomas E Williams against tbe defendant herein, D. K. Futch, seeking to recover for bimself tbe property in controversy in tbis action.

Appeal, by plaintiff from Kerr, J., at February Term, 1917, of GrRAN-VXLLE.

Civil actioN, tried before Bond, J., at April Term, 1917, of New HaNOVEB. Tbe action, is brought to recover $8,200 on the defendant’s subscription, at par, to 82 shares of stock of The A. D. Eich Company, a bankrupt corporation. The subscription is admitted, and also all the allegations of the complaint, except two alleging that the stock has not been paid for. It is admitted that the plea of payment is the only issue before the Court.

<p>1. Injunction — Mortgage — Equity — Foreclosure—Insolvency—Pleadings— Title to Lands — Statute—Courts—Bonds of Indemnity.</p> <p>M. mortgaged land, and timber standing thereon, to L., who assigned the mortgage notes to the plaintiff to secure him as an endorser on notes of L., on which, as such surety, the plaintiff was compelled to pay large sums of money. Thereafter, M. mortgaged 'the same property to the plaintiff to secure a note given for borrowed money. Both of the above mortgages were duly registered, and then M. attempted to convey the property to L., subject to the second mortgage, who conveyed, or attempted to convey, it to the defendant. The defendant entered upon the land and began to cut the timber which plaintiff’s action seeks to enjoin without allegation of defendant’s insolvency, with averment that the value of his security consists in the standing timber and not in the land: Held, not an action as in tort for trespass, but in the nature of a bill in equity for foreclosure and an injunction to protect the security, which does not require an allegation of defendant’s insolvency; and it appearing that XDlaintiff stood by and permitted defendant to make extentive and expensive preparations for cutting and removing the timber, without objecting, the judge may require that a sufficient bond be given, in lieu of an injunction, to secure plaintiff from loss, and if proper lie may appoint a receiver to inspect the cutting and removal of the timber.</p> <p>2. Injunctions — Pleadings — Insolvency.— Courts — Equity — Statutes—Receivers.</p> <p>Revisal, sec. 807, making it unnecessary to allege defendant’s insolvency to enjoin a trespass continuous in its nature, or the cutting or destruction of timber trees, construed with section 809, does not deprive the courts of their discretionary power to require a bond to secure the plaintiff against damages, or to appoint a receiver, where there is a bona fide contention as to the title to lands or timber trees thereon.</p> <p>3. Mortgage — Lands—Timber—Trusts and Trustees.</p> <p>Where one has acquired land and timber growing thereon, subject to the equitable rights existing under a prior registered mortgage, in an action to prevent the cutting of the timber, and the consequent impairment of the security, he is to be regarded as a trustee of the creditor to the extent of this equitable right of the latter.</p> <p>4. Injunctions — Timber—Lands—Title—Statute—Equity.</p> <p>Where the plaintiff’s action is to enjoin the impairment of his.security, by mortgage on lands and timber growing thereon, in the nature of a suit to foreclose and preserve his security intact, the action, where his right is denied, involves the title to the timber, wherein an allegation of defendant’s insolvency is not required under Revisal, secs. 807, 808, 809.</p> <p>5. Mortgages — Legal Title — Assignments — Outstanding Equities — Merger Liens.</p> <p>Where the mortgagee of lands has assigned the notes secured by the mortgage to another to obtain his endorsement as surety on a note, and the latter has been required to make payments, as such surety, the fact that subsequently the principal on the note acquired the mortgagor’s equity in the lands, does not affect a merger of the equitable and legal title so as to defeat the superior rights of a holder of one of the notes secured by the mortgage to have the mortgage foreclosed and to enforce his lien.</p>

Civil ACTION, tried before Connor, J., at March Term, 1917, of CUMBERLAND, to recover damages for negligently burning over plaintiff’s land. At tbe conclusion of all tbe evidence, tbe judge intimated tbat be would charge tbe jury tbat there was no evidence of negligence. Tbe plaintiff submitted to a nonsuit and appealed.

Civil actioN, tried before Bond, J., and a jury, at March Term, 1917, of BrUNSwICK. The action was claim and delivery for a mule, on averment of ownership, a wrongful withholding, and damage. Defendant answered in partial denial and also by way of counterclaim, alleging that plaintiff’s claim was based on a chattel mortgage given by defendant in purchase of the mule at the'price of $240, $100 paid in cash, balance evidenced by note and mortgage sued on.

<p>1. Pleadings — Counterclaims—Interpretations—Allegations, Sufficient — Vendor and Purchaser.</p> <p>Upon the principle that, under our Code practice, pleadings should be liberally construed and sustained when it can be seen from their general scope that a party has a good cause of action or defense, though imperfectly alleged, it is' held in this action, to recover of the purchaser a balance due on a cash register, that an answer setting up a counterclaim that it was understood by the parties that it could be used and of service in keeping accounts, but in fact it was worthless and could not be properly worked: Held,, there is an implied warranty that the machine should be of some value and fit for use, and the counterclaim was sufficiently alleged.</p> <p>2. Contracts — Fraud—Allegations—Pleadings—Vendor and Purchaser.</p> <p>Semple, the representations alleged to have been made by the vendor in this case were sufficient upon the question of fraud, except for the absence of allegation that they were false, or were knowingly so to the vendor, or made with fraudulent intent.</p> <p>3. Vendor and Purchaser — Worthless Goods — Complaint—Delay Explained.</p> <p>The delay of the purchaser of a cash registering machine in making complaint that the machine was unfit and worthless may be explained by his continuous effort to have the vendor remedy the defects and comply with his contract, and the latter’s unfulfilled promises to do so.</p>

Civil ACTION tried* before G. W. Connor, J., and a jury, at tbe April Term, 1917, of CumbeblaNd. Tbe action was instituted to recover on a guardian bond executed by Jobn C. Gorham and tbe Fidelity Company as surety to recover an amount alleged to be due tbe ward, feme plaintiff. On denial of liability and plea of statute of limitations, tbe jury rendered the following verdict: 1. Is plaintiff’s cause of action barred by tbe statute of limitations? Answer: No. 2.

Appeal by defendant from Harding, J., at tbe April Term, 1917, of Asi-ie. This was an action begun before a justice of tbe peace to recover on a bond for $40 and interest, dated 4 July, 1910, which was tried on appeal in tbe Superior Court. Tbe bond was as follows: $40.00.

<p>1. Motions — Process—Service—Special Appearance.</p> <p>A special appearance for tbe purpose of a motion to strike out tbe return of service on a summons, on tbe ground tbat tbe endorsement was unlawfully made, is tbe proper procedure.</p> <p>2. Process — Nonresidence—Parties—Service in State.</p> <p>Tbe principle wbicb protects nonresident suitors and witnesses from service of civil process while in attendance on tbe courts of tbis forum is for tbe purpose of enabling tbe courts tbe better to administer full and adequate justice in a cause pending before it, and does not extend to cases where tbe litigant or witness comes within tbe jurisdiction for bis own private purposes or personal advantage, as where, after tbe issues have been determined, tbe party has returned to attend a judicial sale to protect bis interest thereat.</p> <p>3. Contracts — Support—Consideration.</p> <p>A contract made between plaintiff and defendant, whereby tbe former should care for tbe mother-in-law of tbe parties at bis home, in consideration of tbe defendant’s furnishing servants, stated sums of money, etc., is supported by a sufficient consideration to maintain an action thereon. Institute v. Mebane, 165 N. C., 644, cited and applied.</p> <p>4. Courts — Jurisdiction — Pleadings — Amount Demanded — Good- Faith— Judgments.</p> <p>Objection to a judgment rendered in tbe Superior Court tbat tbe amount was cognizable in tbe court of a justice of the peace cannot be sustained when tbe amount demanded in tbe complaint, in good faith, exceeded tbe sum of $200.</p>

<p>Civil ACTION, tried before Harding, J., and a jury, at February Term, 1917, of Forsyth.</p> <p>Plaintiff sued for the recovery of $60, with interest, from 20 November, 1912, alleged to be due upon an account for services rendered in the department of higher accountancy, a branch of the La Salle Extension University. The course of instruction given therein by correspondence is outlined and the necessary books described in the written contract signed by the respective parties and admitted by them to be their agreement. The following clause was inserted therein: “Please enter my enrollment for the complete university course of instruction in higher accountancy for a period of one year, including text and service as outlined above, for which I agree to pay to your order the sum of $66, total amount, payable as indicated below. Express charges on text to be prepaid by the university and included in my account. All payments (except first payment, which should be made to the representative at the time of giving application) are to be sent by mail to the order of La Salle Extension University, Chicago. This enrollment is not subject to revocation. No verbal modifications or representations, except as herein expressed in writing, will be recognized, and no reduction in fees will be made on account of withdrawal. In the event of any one payment becoming delinquent sixty days without special consent of the university, the unqiaid balance becomes immediately due and payable. Received, $6. Balance at $6 month.”</p> <p>At the trial plaintiff introduced an itemized statement of its account, duly verified. Defendant objected to the admission of the statement, but the objection was overruled, and he excepted.</p> <p>Defendant testified: “I signed the contract according to its date, 12 June, 1912. I received a statement, or demand, for payment from plaintiff the first of the following month, which was July. That statement was destroyed, because I thought the account was closed. I wrote plaintiff it was incorrect. I wrote them I did not owe them the amount of the statement sent me. The letter I wrote them was written on stationery of the Maline Mills. I did not have any letter from them with a statement. I did receive a statement, but there was no letter with it. The letter to which I have just testified is not any of the letters which have been produced here in response to the notice from me to the plaintiff to produce all the correspondence. I wrote them this statement of account was not according to the contract, and I thought best for me to just stop if it was to cost me $1 extra every month, and asked them not to send any more lessons. The first lesson came in, and I had not gotten that up and sent to them before I got this statement, and immediately upon receipt of the statement I wrote them, as stated above, that the statement was incorrect, and asked them not to send any -more lessons to me. I wrote them that I would not take any more lessons, and, if I remember correctly, that I had the text-books and they had $6 of my money, and I thought it was an even break, and we would just call it off, and asked them to stop sending the lessons. They did not stop sending the lessons, but I returned them as soon as they came in, without opening them, and several of them were returned from the postoffice. I never carried them away from the postoffice. On 8 November, 1912,1 received a letter from plaintiff, and my reply is on the bottom of the letter.” The following is the letter, and reply of defendant, signed by the respective parties, which the defendant offered in evidence:</p> <p>“Dear Sir: Your answering any one or all of the following questions will be appreciated: 1. Have you any grievance? 2. Are you unable to make payments ? 3. Do you feel that your not taking up the work is any just reason for not remitting? If-you have a grievance, or are unable to make payments, or if there is any other reason for your not remitting, are we not entitled to an explanation?”</p> <p>“Gentlemen: I made a contract with your salesman for one course of instruction in higher accountancy for $66, and intended taking the course, but upon receiving statement from your bankers for $67, less payment of $6, I decided that I’d better drop it before investing any more money, as you might add another dollar for each month, and as that is pretty expensive (?) collecting, thought I’d save you and myself money by taking this step. Will keep the books, but will mail you the lessons, as I’ve not looked at any but the first two.”</p> <p>In the next letter of the correspondence, dated 19 March, 1913, plaintiff asks the defendant why he has not remitted the amount then due, or at least a part o°f it, and then says: “I will appreciate your courtesy if you will let me hear from you by return mail, and if you have any grievance and will let me know what it is, I assure you I will do everything in my power to adjust it to our mutual satisfaction. Thank you in advance for the courtesy of an early reply.” To this defendant replied on the back of the letter as follows: “If you want to do me a favor, you’ll see that every one connected with your company stops writing me letters. I canceled this contract when I received the first statement, because your salesman did not turn in contract according to the duplicate he left me. I’ve written you an explanation once or twice before, and I promise you this is the last communication you’ll receive from me.” Defendant further testified that he did not remember exact form of the statement, whether it was in two columns, one showing amount of whole debt, and balance of debt in the other, but it was “for the whole thing, with $1 added.” He then said: “I worked up the first lesson, but refused to have anything further to do with the other lessons after I got the statement.”</p> <p>The court overruled defendant’s motion for a nonsuit, and he excepted. Defendant then requested these instructions:</p> <p>1. That if the jury believe the evidence, they are instructed to answer the issue “Nothing.”</p> <p>2. That if the jury believe the evidence, the contract between the plaintiff and defendant was an-executory, contract, or a contract to be performed in the future on the part of the plaintiff; and if the jury should find from the evidence that the contract was breached by the defendant in refusing to accept and pay for the lessons to be furnished under such contract, it was the duty of the plaintiff to stop sending the lessons after it bad notice that tbe defendant had repudiated the contract; that in such event the plaintiff would be entitled to recover the .damages only which had accrued to it up to the time the contract was breached, if you find from the-evidence that the contract was breached by the defendant; that the plaintiff could not continue the performance of the contract on its part after notice of the repudiation by the defendant, under such circumstances, and recover the full amount specified in the contract.</p> <p>The court refused to give the same, and defendant again excepted.</p> <p>The court instructed the jury that if they believed the evidence in the case the issue should be answered in favor of the plaintiff — that is, for $60 and interest from 20 September, 1912. Defendant excepted. Verdict and. judgment for plaintiff. Defendant appealed, after submitting the usual motions and reserving his exceptions.</p>

Appeal by plaintiff from Harding, J., at April Term, 1917, of Ashe. The plaintiff, on 4 July, 1888, conveyed to his half-brother, “William Baker, all of my entire interest in my father’s land, the deceased, where my mother, Frankie Baker, now lives, the land known as the Eobert Baker land, bounded” (describing it).

Appeal by petitioner from Bond, J., at the April Term, 1917, of New HANOVER. - This is a petition filed by the receiver of the M. H. Brimmer Company against the Schloss-Bear-Davis Company to recover a certain “dead wagon,” or the proceeds thereof.

Appeal by plaintiff from Kerr, J., at May Term, 1917, of AlamaNoe. This is an action on the following bond: $1,866. One day after date, we jointly promise to pay L. L. Kernodle $1,866 for value received. This 3 October, 1907. (Signed) J. D. KeRNodle. (seal) Cora H. KerNodle.

<p>CrviL ACTION, tried before Kerr, J., and a jury, at May Term, 1917, of Alamance.</p> <p>.Plaintiff sued upon a note for $150, given by the defendant to him for the price of a gray horse. Defendant set up a counterclaim, after admitting the execution of 'the note, and alleged therein that plaintiff had expressly warranted the gray horse to be sound and all right, and one that would do defendant’s business, and after he was tried, if the representation or warranty- was found to be untrue, plaintiff would make it good by exchange for another horse or in money. Defendant gave another horse, valued at $75 and the note for $150 to plaintiff for the gray horse. The latter proved to be unsound, defendant testifying that “The gray- horse was poor and there was something wrong with him, which I supposed to be kidney trouble. He was not able to do a day’s plowing.” He then took the horse to plaintiff, who refused to receive him, advising defendant to exchange him with some one for another horse, and stating that he had no horse to give him in the place of the gray animal. As plaintiff refused to take back the gray horse, defendant exchanged him for a black mare. The jury rendered the following verdict:</p> <p>1. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: $150 and interest from 21 March, 1912.</p> <p>2. Did the plaintiff warrant the gray horse, as alleged in the answer ? Answer: Yes.</p> <p>3. Was there a breach of said warranty? Answer: Yes.</p> <p>4. What damage, if any, has defendant sustained because of said false warranty of the gray horse ? Answer: $197.</p> <p>5. Did the defendant, by his conduct in trading the gray horse for the black mare, waive any warranty of the gray horse? Answer: No.</p> <p>Judgment on the verdict, and plaintiff appealed.</p>

<p>1. Pleading — Proof—Substantial Variance — New Cause of Action.</p> <p>The liberal construction given to pleadings under our Code system does not avoid the necessity that the proof must correspond with the allegation, for proof without allegation is as unavailing as allegation without proof; and where the difference between the allegation of the pleading and the proof is substantial, so as to grossly mislead the other party, amounting to alleging one cause of action and proving another, it is not allowed.</p> <p>2. Same — Fellow-servant Act — Railroads.</p> <p>Where the plaintiff’s recovery for damages for a personal injury is confined by the pleadings to an alleged negligent order given by defendant’s foreman to plaintiff’s coemployees, he will not be permitted to recover upon the theory that defendant had failed to furnish sufficient help for the work then being done; nor, except in suits against railroads, can a recovery be had for damages for a personal injury solely arising from the negligent acts of a fellow-servant.</p> <p>3. Instructions — Requests—Issues.</p> <p>Exceptions to the refusal of the court to give requested instructions are not tenable on appeal when- they have been substantially incorporated in the general charge, or where they are not properly addressed to the issues.</p>

Appeal by defendant, Atlantic Coast Line Eailroad Company, from Kerr, J., at May Term, 1917, of AxamaNCe. Tbis action was begun against tbe Southern. Eailway Company for the sum of $14 and interest from 23 May, 1916, under Eevisal, 2632, for failure to transport and deliver within a reasonable time a shipment of yarns from Weldon, N. O., to Burlington, N. O. Judgment was rendered by the justice against the Southern Eailway .Company for $14, and it appealed.

Appeal by both parties from Harding, J., at February Term, 1917, of ROCKINGHAM.

<p>Civil ACTION, tried before Kerr, J., and a jury, at May Term, 1917, pf AlAMANCE.</p> <p>Yerdict and judgment for plaintiff, and defendants Mitchell & McCauley appealed.</p>

PetitioN for partition, tried before Connor, J., at September Term, 1917, of Alamance.' Tbe petitioners are tbe two devisees tinder tbe will of Henry G. Chris-man; tbe defendants, Davis Barbam and others, are tbe children of Mary E. Barham; tbe interpleaders, Lewis C. Ohrisman and others, are tbe brothers and sisters, heirs at law of tbe testator, Henry G. Ohrisman.

Civil actioN, tried before Adams, J., and a jury, at September Term, 1916, of EoRsytii. Tbe action was to recover damages for physical injuries suffered by plaintiff, a minor, when in the company’s factory as an employee, contrary to the provisions of the statute (Pell’s Revisal, sec. 1981b), and attributed also to positive negligence on the part of defendant. On denial of liability and plea of contributory negligence, the jury rendered the following verdict: 1.

Civil actioN, beard in GbaNville County on 3 August, 1917, before 'Connor, J., bolding tbe courts of tbe Tenth Judicial District. ■ Tbe action was one in tbe nature of mandamus to compel defendants to lay a special tax of 10 cents on tbe $100 valuation as necessary to maintain tbe public schools of said county for a period of four months, ■defendants contending that a tax of 5 cents levied by them was sufficient for tbe purpose.

Civil actioN, tried before Kerr, J., at January Term, 1917, of Ala-maNCE, upon these issues: 1. Was the defendant R. J. Hall a member of the partnership of Hart, Hall & Co. on 21 March, 1912, 7 May, 1912, and 6 June, 1912? Answer: Yes. 2. Was there a dissolution of the firm of Hart, Hall & Co. by the withdrawal of R. J. Hall therefrom previous to 20 February, 1913? Answer: No. 3. If so, did the plaintiff have notice of such dissolution previous to 20 February, 1913?

<p>Civil actioN, heard by Stacy, J., upon report of referee and exceptions thereto by plaintiff, at May Term, 1917, of Fobsyth.</p>

Civil aotioh, tried before W. F. Harding, J., and a jury, at July Term, 1917, of DavidsoN. Defendant contracted with, plaintiff to sell and deliver to it all goods ordered, during the continuance of the contract, that they may be able to supply, but was not to be liable in damages for failure to fill any order.

Civil action-, tried before Stacy, J., and a jury, at May Term, 1917, of Eoesyth.

<p>1. Evidence — Deceased Person — Transactions, etc. — Statute.</p> <p>Evidence of an interested party that deceased had agreed to devise and bequeath all of his property upon consideration of being taken care of during his life, and that the other party to the agreement, in rendering these services, was thereunder obligated to do so, is prohibited by Revisal, sec. 1631, relating to transactions and communications with deceased persons. There were also transactions and communications between the witness and the deceased, which were prohibited by the same section.</p> <p>2. Same — Interest—Conversations with Third Persons.</p> <p>Where the plaintiff, in her own right and as administratrix of her mother, seeks to recover upon an alleged contract made by her mother and another person, now deceased, under which her mother performed services to such other person under his agreement that he would devise and bequeath to her all of his property, it is incompetent for the plaintiff to testify to communications or transactions between her mother and such other person tending to establish her demand, for she is a party interested, within the contemplation of the statute (Revisal, 1631).</p> <p>Clabk, O. J., dissenting.</p>

Appeal by defendant from Harding, J., at April Term, 1917, of Ashe. This is an action to recover damages for slander, the plaintiff alleging that the defendant had charged him with the crime of perjury and with the crime of embezzlement. The defendant pleaded justification.

This is a controversy submitted without action, to try the title to two tracts of land, and to recover the purchase money therefor. L. M. Hardy, who was the owner of the land, died, leaving a will, the material parts of which, are as follows: “2. I give, devise and bequeath unto M. Langhorne Hardy, my son, of lot No. 1 of the original P. M. Hardy land, a portion described as follows: (Description omitted.) “3.

Appeal by plaintiff from Harding, J.; at tbe March Term, 1917, of FORSYTE. This is an action to recover damages for the wrongful death of the intestate of the plaintiff caused, as the • plaintiff alleges, by the negligence of the defendant, a hotel company, in failing to have the door of its elevator securely fastened. The following is a diagram of the premises : S. B. Patterson was a guest of tbe hotel and occupied Room 307.

Appeal by receivers of lumber company, Humphrey Brothers, and Sizer & Co., mortgagee, et als., from Bond, J., at February Term, 1917, of New HaNoveR.

<p>Municipal Corporations — Cities and Towns — Streets — Electric Railway— Freight — Additional Servitude — Damages.</p> <p>The use of the streets of a city, under legislative authority and charter right given by the municipality, for the transportation of freight in electrically driven cars on street railroad tracks, from a steam-railroad depot to factories, etc., within the city limits, does not impose an additional burden upon the streets for which compensation may be allowed to the owners of lots abutting thereon.</p>

Appeal by defendant from Bond, J., at September Term, 1916, of EOBESON.

Appeal by petitioners from Long, Jat June Term, 1917, of Guil-EORD. Tbis is a proceeding to sell land for division.

<p>Municipal Corporations — Cities and Towns — Water-works—Flat and Meter Rates — Ordinances—Discrimination.</p> <p>An ordinance of a municipality furnishing water to its residents upon a flat rate, according to the faucets in the bouse, payable quarterly in advance, and also upon the meter plan, whereby the consumer pays only for the water used, which provides that “water meters will be used whenever in the judgment of the board they should be attached,” is reasonable and valid; and where the city, at its own expense, has changed a consumer, at his request, from a flat to a meter rate, its refusal to change him back to the flat rate is reasonable and not necessarily discriminative; because there are small consumers upon the flat-rate basis.</p>

<p>1. Corporations — Officers—Principal and Agent — President—Restricted Authority — By-Laws—Bills and Notes — Notes.</p> <p>It may be shown, as between the original parties, that the payee of a note of a corporation took it with knowledge that the president’s authority was restricted by the by-laws, requiring the counter-signature of the secretary, and that it was invalid, without consideration, and given only as accommodation paper.</p> <p>'2. Same — Deceased Persons — Statutes.</p> <p>A corporation, sued upon its note, executed by its president, defended upon the ground that it was for accommodation, therefore without consideration, and under its by-laws its validity depended upon the countersignature of its secretary, of which the plaintiff had had previous notice. At the plaintiff’s instance, the testimony of himself and of defendant’s president and secretary was taken before the clerk. Revisal, secs. 865 and 866. The plaintiff died, and his administrator was made a party in his stead, and upon the trial it is held reversible error to exclude the testimony as taken before the clerk, offered by the defendant, as being a transaction or communication with a deceased person, contrary to Revisal, sec. 1631, and which tended to sustain the defense.</p> <p>3. Evidence — Statutes—Bill of Discovery.</p> <p>The examination of an adverse party to an action, under Revisal, sec. 865, is a substitute for the former bill of discovery, and may be introduced in evidence by either party. Revisal, sec. 867.</p> <p>4. Same — Corporations—Principal and Agent — Interest—Dead Persons.</p> <p>In an action on a corporation’s note, made by the president, which was not countersigned by the secretary according to the requirement of the' by-laws, the secretary is only an agent of the company, and his testimony as to notice of the by-laws does not come within the provision of Revisal, sec. 1631, as to a transaction or communication wtili a deceased person.</p> <p>5. Appeal and Error — Objections and Exceptions — Evidence Competent in Part.</p> <p>A general objection and exception to the introduction of evidence competent in part will not be considered.</p> <p>Hoke, J., concurring.</p>

<p>Appeal and Error — Judgment Set Aside — Excusable Neglect — Meritorious Defense — Findings of Fact.</p> <p>On appeal from an order setting aside a judgment for excusable neglect, it is not sufficient that tbe lower court bas found that there was a meritorious defense, for tbe facts upon wbicb tbis finding was based must appear of record, so that tbe Supreme Court may pass upon tbe correctness of tbe ruling, or tbe case will be remanded to that end, with leave'to file additional affidavits, if tbe parties are so advised.</p>

Civil action, tried before Harding, J., at February Term, 1917, of Rockingham:, upon, these issues: 1. Did the defendant publish of and concerning the plaintiff in a letter to A. L. Brooks, Esq., the words set out in the plaintiff’s second cause of action ? Answer: Yes. 2. If so, did the defendant thereby .charge the plaintiff with corruption or bribery in the discharge of his duties as a juror? Answer: Yes. 3.

<p>1. Judgments by Default — Pleadings, Filing — Clerks of Court.</p> <p>Pleadings should be filed with the clerk of the court of the proper county, and when a proper answer to a complaint has been mailed in time to reach the clerk, and he has failed to get his mail on that day, the last one of the term, and it was in the clerk’s office, on his desk, unopened, when the judge signed judgment for plaintiff by default, the neglect, if any, was that of the clerk, for which the defendant is not responsible, and upon a prima facie case of a meritorious defense shown, the judgment should be set aside.</p> <p>2. Attorney and Client — Venue—Presumptions—Duty of Attorney.</p> <p>An attorney, resident in an adjoining county to that of the venue of an action, 28 miles from the county-seat, with several daily trains passing between the two cities, may fairly be presumed to be a regular practitioner of that county, nothing else appearing.</p> <p>3. Same — Laches of Attorney.</p> <p>Where a corporation has employed an attorney to defend an action against it, who has prepared an answer, which has been properly verified, and in his absence the agent of the defendant mails it to an adjoining county, that of the venue, and it is received by the clerk of the court in time, but remains unopened'at the last day of the pleadings term until after a judgment by default has been signed, and the judge has left the court-room: Held, while it was the duty of the attorney to have filed the answer in time, the defendant, not being in default, will not be held responsible for his neglect therein.</p> <p>4. Judgments by Default — Meritorious Defense — Prima Facie Case — Issues.</p> <p>To set aside a judgment for default of an answer, it is necessary that defendant show only prima facie that he has a meritorious defense; and where the proposed verified answer has been filed in support of the motion, raising an issue of fact necessarily to be determined before judgment can be rendered, it is sufficient.</p>

Appeal by R. C. Townsend from Connor, J., at May Term, 1917, of ROBESON. This action was begun by J. H. and B. W. Townsend, as owners of 1,512 acres, being tract No. 71, in the Drainage Swamp, which land, in February, 1916, was sold by the sheriff for default in payment of- the annual installment of the assessment thereon of $1,392.18. At said sale A. G-. Calhoun became the purchaser, at the price of $11,000, which he duly paid to the sheriff.

<p>Crvn. actioN, tried before his Honor, W. F. Harding, J., and a jury, at February Term, 1917, of Eockingham.</p> <p>The. action was to recover damages for injury to a motor truck of plaintiff caused by the giving away of a bridge on a street in the town of Leaksville, and for maintenance of which the town was responsible.</p> <p>The cause was submitted to the jury on the two issues: First, as to defendant’s negligence; second, damages.</p> <p>There was verdict on first issue for defendant.</p> <p>Judgment, and plaintiff excepted and appealed, assigning errors.</p>

<p>Civil ACTION, tried before bis Honor, W. F. Harding, J., and a jury, at July Term, 1917, of DavidsoN.</p> <p>The action was to recover damages for breach of contract of shipment of a lot of antique furniture over defendant railroad and others, made by R. S. McRary, at Lexington, N. 0., on 2 November, 1914, consigned to Helen Ivey Company, plaintiff, at Germantown, Pa. Part of the furniture was lost and written notice of claim duly filed.</p>

<p>Civil actioN, tried before Webb, J., at March Term, 1917, of SCOTLAND, upon these issues:</p> <p>1. Were the judgments rendered by S. W. Covington, J. P., and referred to in the complaint, rendered through fraud upon the part of the defendant W. IT. Cooper, or through collusion between the plaintiff and said W. II. Cooper, administrator? Answer: No.</p> <p>2. In what amount is the defendant W. H. Cooper, administrator, indebted to plaintiff? Answer: Yes, in the amount set forth in the complaint.</p> <p>From the judgment rendered, the defendants Walter Leitch and others appealed.</p>

PetitioN for partition, heard before Well), J., at March Term, 1917, •of Eichaiond, upon a motion to strike out the answers of defendants Porter and wife for failure to file a defense bond, and for judgment for want of an answer. The motion was allowed and the answers were •stricken from the records. Attorneys for defendants, in apt time and before the order was made, asked for time within which to file bond, which motion was denied. Defendants excepted.

<p>1. Appeal and Error — Motions — Judgments — Pleadings — Objections and Exceptions.</p> <p>Exception should be noted to tbe refusal of tbe trial judge to grant a motion for judgment upon tbe pleadings and reserved for final judgment and appeal, and an appeal does not presently lie.</p> <p>2. Wills — Donee of Power — Excess of Power — Contracts—Assent of Cestui Que Trust — Expenditures—Account—Compensation.</p> <p>A power in a will given the executors to sell off a tract of land, dividing it into smaller lots, etc., does not authorize tbe executors to enter into contract with real estate dealers to lay off land into streets and lots, nor will authority likewise conferred by tbe other beneficiaries permit the executors to exceed the power given them in the will; but where the land company has expended money to lay off the land into streets and lots, with expenditure of money enhancing the value of the whole, under the contract with the executors, with the approval of some of the beneficiaries, in an 'action brought by the latter, in which the others are subsequently joined, all being of full age, the land company is entitled to just compensation upon account taken.</p> <p>3. Trusts and Trustees — Excess of Powers — Parties—Statutes—Cestui Que Trustents.</p> <p>Where the question involved in the controversy is whether the trustee of an express trust has exceeded his authority, it is necessary to join the eestuis que trustent in the action, and Revisal, sec. 404, has no application.</p> <p>4. Pleadings — Several Defendants — Admissions as to Some — Trials.</p> <p>Where some of the eestuis que trustents have acquiesced in a- contract made by the donees of a power under a will, and thereafter they bring action to set the transaction aside, on the ground that the power had been exceeded, in which the other eestuis que trustents are afterwards made parties defendant and admit the allegations of the complaint: Held,, the-admissions made by the defendants, eestuis que trustents, do not bind their codefendant, and the latter are entitled to have the jury pass upon the issues raised by them.</p>

Appeal by plaintiff from Webb, J., at May Term, 1917, of UNION. This is an action on a note executed by tbe defendants to tbe plaintiff, Savings, Loan and Trust Company. Tbe defendant relied on tbe plea of usury.

Civil ACTION, tried before Kerr., J., and a jury, at April Term, 1917, _ of GRANVILLE. The plaintiff brought this action for the purpose of having an accounting and settlement with Lassiter-Ragland, Inc., of which company he was a shareholder. The jury'returned the following verdict: 1. How many shares of stock does plaintiff own in the defendant company ? Answer: Fifty shares. 2. What is the value of the plaintiff’s stock in the defendant company? Answer: $103 per share. 3.

Civil action-, tried before Webb, J., and a jury, at July Term, 1917, of Cleveland. The action was brought to recover damages for injuries alleged to have been received by the negligence of the defendant. The plaintiff was employed as a carpenter by the defendant. The evidence was somewhat conflicting, and it will better disclose the questions at issue to state what it tended to prove as contended by the respective parties.

Civil ACTION, tried before Cox, J., and a jury, at March Term, 1917, of CHATHAM. This action was brought to recover damages for slander, assault, and false arrest, or imprisonment, and was here at a former term of this Court (169 N. C., 421), but was not finally decided.

<p>1. Wills — Devises—Shifting Use — Defeasible Fee.</p> <p>A devise of lands to K. “his lifetime, then to go to” G. and M., “and if they should die without leaving bodily heirs, then to go to the Flow heirs” : Held, after the falling in of the life estate, G. and M. take the fee in the remainder (Revisal, sec. 3138), defeasible upon their dying without leaving “bodily heirs,” in which event it would go to the ultimate devisees, upon the principle of a shifting use operating by way of an executory devise.</p> <p>2. Wills — Devises—Defeasible Fee — Estates—Limitations—Statutes.</p> <p>When G. and M. take, by devise, the fee simple in lands, defeasible upon their dying without leaving bodily heirs, the event determining the estate they shall take is whether they have children living at the time of their death or born within ten lunar months thereafter, “unless the intention of such limitation be otherwise, and expressly and plainly declared in the face” of the will.</p> <p>3. Deeds and Conveyances — Defeasible Title — Wills—Demises.</p> <p>A devise of lands to G. and M. in fee, defeasible upon their dying without leaving bodily heirs, and then to the heirs of the testator: Held, neither G. nor M., nor one of them after the death of the other, could convey an indefeasible fee simple title to the lands.</p> <p>4. Wills — Estates — Remaindermen—Testator’s Heirs — Devise—Purchase— Descents — Statutes.</p> <p>Where a testator devises a fee simple title to- his lands to his two sons, defeasible upon their dying without leaving bodily heirs, naming the Plow heirs as his ulterior devisees (Revisal, sec. 1556; Rule 4 of Descents), providing that on failure of lineal descendants, etc., the inheritance shall descend to the next collateral relations, capable of inheriting, of the person last seized, who are of the blood of the ancestor, has no application, and cannot confine the heirs who will take under the will to those who are also the heirs of his two sons to whom the devise was made; for the Mow heirs would take directly under the will as purchasers, upon the happening of the contingency.</p>

<p>1. Pleadings — Definiteness—Motions.</p> <p>Wliere the complaint sufficiently alleges the negligent acts of the defendant, concerning which damages are claimed in an action to recover for a personal injury, the defendant should ask that the pleadings be made more definite or certain, if such information is required for his defense.</p> <p>2. Evidence — Conjecture—Facts in Issue.</p> <p>The mere conjecture of a witness as to what one would, do under given circumstances should not be received in evidence, especially when it invades the province of the' jury in their determination of a fact arising from the evidence.</p> <p>3. Negligence — Physicians — Surgeons — Skill Required — Rule of Prudent Man.</p> <p>• The law requires a physician or surgeon, in the practice of his profession, to have and apifly that degree of care and skill ordinarily possessed by members of his profession; and he is liable in damages to his patient for any injury proximately caused by his lack of the requisite knowledge and skill, or the omission to exercise reasonable care, or failure to use his best judgment in his treatment which a practitioner of ordinary prudence would have exercised under the same circumstances.</p> <p>4. Same — Evidence—Questions for Jury — Trials.</p> <p>In an action against a surgeon for damages alleged to have been caused by his failure to properly treat a patient who had been shot in the foot, evidence tending to show that after he had treated the foot he said no further visit was necessary; that he failed to probe the wound for foreign substances; that a few days thereafter pieces of shoe leather and several shot worked their way out of the wound, causing inflammation, and suppuration ensued, attended with great pain ; that, contrary to his diagnosis, the toes of the foot did not properly grow in their natural position, but caused a deformity, and that he did not attend the patient after the first visit, is sufficient to be submitted to the jury upon the question of the defendant’s actionable negligence.</p> <p>5. Negligence — Contributory Negligence — Parent and Child — Infants — Minors.</p> <p>Where a minor sues a physician and surgeon to recover for injuries caused by his alleged want of attention and unskillfulness in treating a wound he had received, contributory negligence on the part of the father, who had called in the surgeon and was acting as father in behalf of his son, cannot be attributed to the latter; and an, issue as to contributory negligence resting solely on this ground is not a proper one to be submitted to the jury.</p>

Appeal by defendant from Qline, J., at the June Term, 1917, of MeckleNbubg. This is an action to compel the defendant W. M. Witter to perform his contract to buy the property herein below described, for the sum of $5,000, upon the tender of a deed by the plaintiff. The defendant refused to accept the deed on the ground that it did not convey an indefeasible fee-simple title.

<p>Appeal by plaintiff from Justice, J., at the November Term, 1916, of MECKLENBURG.</p> <p>This is a petition to rehear.</p>

<p>Justice’s Courts — Nonresidents—Process—Statutes—Time to Answer — Jurisdiction — Motions.</p> <p>The provision of Revisal, sec. 1451, that a justice of the peace shall not enter a judgment against a nonresident defendant unless it shall appear that process was duly served .at least ten days before the return day, is not jurisdictional; and where, upon special appearance of defendant for the purpose of dismissing the action, he was given more than ten days thereafter to answer or defend, which he refused to do, the justice’s judgment will not be disturbed.</p>

<p>PbtitioN to rehear the above entitled case, reported 173 N. C., p. 689.</p>

<p>1. Insurance — Policies—Contracts—Vested Rights — Constitutional Law.</p> <p>A general consent of a policy-holder in an assessment fraternal benefit society that the company may thereafter alter or amend its constitution or by-laws does not authorize the society to make such changes therein as will impair the vested right of its members and policy-holders arising under their contract of insurance with the company.</p> <p>2. Same — Fraternal Orders — Assessments.</p> <p>Where a member of a fraternal benefit society has taken out a life insurance policy therein under a contract that its members shall be assessed according to age, the society may not thereafter so change its plan of insurance as to divide the members prior to a certain date into a class by themselves, leaving them to take care of their losses among themselves by ever-increasing assessments in title progress of time, or at tbeir option come in as new members to be assessed according to tbeir increased age, and thus lose tbeir vested rights under tbeir policy contracts.</p> <p>3. Fraternal Orders — Amendments — Charter — By-Laws—Suspending Member.</p> <p>Where fraternal benefit insurance societies are required to file certified copy of changes made in tbeir constitution and by-laws with the Insurance Commission within 90 days, and fail to do so, they may not, while thus in default, suspend a member for noncomplianee therewith.</p> <p>4. Insurance — Fraternal Orders — Policies—Lex Loci.</p> <p>Where a member of a fraternal benefit society, incorporated in another State, takes a life insurance policy therein through a subordinate lodge in this State, the policy contract is a North Carolina contract, subject to the laws of this State, which will not permit such change in the plan of insurance as will impair rights theretofore vested under the policy, whether such may be lawful in such other State of otherwise.</p> <p>5. Insurance — Commerce — Policies—Contracts—Lex Loci — Presumptions— Statutes.</p> <p>Insurance is not the subject of interstate commerce, and the presumption is that the law of the place at which a contract of insurance is made shall govern the rights of the parties, and the statute law at the time thereof applies, and not that which is later enacted.</p> <p>6. Insurance — Fraternal Orders — Contracts—Policies—Vested Rights — Cancellation — Damages.</p> <p>Where a fraternal benefit society has issued a policy of life insurance to a member, and has changed its plan of business so as to impair the vested rights of the insured under his contract, and refuses to accept the proper premium, and declares the policy void, the insured may maintain his action to recover of the insurer the principal sum of money he has paid -on his policy, and simple interest thereon.</p>

<p>Appeal by both parties from Garter, J., at chambers, as of May Term, 1917; from Caldwell.</p> <p>The plaintiff lumber company, being the owner of certain timber lands in Caldwell County, entered into an agreement on 15 September,</p> <p>1915, to sell the same to the United States “at the rate of $1.90 per acre, the acreage to be determined by Government survey.” The defendant County Commissioners of Caldwell caused the lands to be assessed for taxation for State and county purposes for the years 1916 and 1917, and the defendant sheriff was authorized to collect such taxes.</p> <p>The case is submitted upon “a controversy without action,” in which it is agreed “No conveyance of the title has been made under the terms of the contract referred to and no condemnation proceedings thereunder have been instituted.” It was also agreed that the U. S. Department of Agriculture, by its agents, has exercised certain acts of possession over the lands referred to in said contract by building roads, and the like.</p> <p>The court held that the lumber company was liable for the taxes for 1916,- from which it appealed, and that it was not liable for the taxes on the lands in question for the year 1917, from which the defendants appealed.</p>

Appeal by plaintiff from Cline, J., at February Term, 1917, of Meck-LENBUKG. Tbis action was brought by the plaintiff in her own 'right against the executor of Joseph H. Wilson for a settlement of the guardianship of her mother, Ella R. Carson, and her mother’s sister, Richardine Carson, both long since dead.

<p>Costs — Admissions—Processioning—Title—Issue.</p> <p>Where, in proceedings to procession lands, plaintiff’s title is denied, upon allegation of insufficient knowledge [Revisal, sec. 479 (1)], and without objection the cause is transferred to the civil issue docket for trial, and a survey being necessary, the judge has ordered it to be made, to which defendant excepts without giving any ground; and upon trial, after survey made, it is admitted by the parties that the title to a part of the land was in plaintiff, he is entitled to recover his costs, except that of witnesses present at the trial who were neither tendered nor sworn. Revisal, sec. 1264 (1).</p>

Civil actioN, tried before Allen, J., and a jury, at February Term, 1917, of Bertie. The action was to recover a double indemnity of $1,000 claimed on a policy of insurance on one George E. Olay, deceased, wbo was killed in a fight with, one Sullivan on 2 April, 1915.

Civil actioN, tried before Connor, J'., and a jury, at February Civil Term, 1917, of RobesoN. On motion by defendants, made in apt time, there was judgment as of nonsuit, and plaintiff excepted and appealed.

<p>Civil actioN, tried, before Cline, J., and a jury, at February Term, 1917, of MeokleNbukgl</p> <p>The action was to recover damages for physical injuries, caused by the alleged negligence of defendant company, and by reason of which, on October 3 or 4, 1916, plaintiff, an employee of the defendant, assisting in the operation of linter machines in defendant’s mill, had his hand badly lacerated and permanently injured, from which he still suffers.</p> <p>On denial of liability and plea of contributory negligence, ■ the jury rendered the following verdict:</p> <p>1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.</p> <p>2. Did the plaintiff contribute to his injury by his own negligence, as alleged in the answer? Answer: No.</p> <p>3. What damages, if any, is plaintiff entitled to recover? Answer: $1,200.</p> <p>Judgment on the verdict, and defendant excepted and appealed.</p>

Civil actioh, tried before Kerr, J., and a jury, at March Term, 1917, •of DURHAM. Tbe action was to recover on seven promissory notes, of $125 each, all ■due at time of action commenced, executed by defendant to tbe American Manufacturing Company, and of wbieb plaintiff claimed to be tbe ■endorsee and bolder in due course.

Civil ACTION, tried before Gline, J., at April Term, 1917, of GastoN. There was a verdict for the plaintiff upon the issues. From the judgment rendered, defendants appealed.

Appeal by both parties from Carter, J., at March Term, 1917, of Caldwell. This is an action to recover damages, the plaintiff alleging that be was induced to pay $1,200 for an interest in a mercantile business by the fraud of the defendants. The defendants denied the allegations of fraud. The plaintiff introduced evidence tending to establish his contentions, and that he had been damaged at least in the sum of $1,200, the amount paid by him to the defendants.

Appeal by defendant from Cline, J., at August Term, 1917, of Oabakrus. This is an action to recover damages for personal injury. Tbe plaintiff, 'W. C. Goodman, was working for the defendant Tallahassee Power Company as an electrical helper at Badin, N. 0., on or about 22 March, 1916, and had been so working for some time prior thereto. On tbat day, be, with two other electricians, went out to do some work.

<p>Judgments — Injunctions—Bonds—Court’s Jurisdiction — Parties—Estoppel.</p> <p>Where a restraining order has been issued against W. C. M. from cutting timber on certain lands, and an order is entered entitled as against W. O. M., Jr., permitting him to continue cutting upon his giving a certain bond with surety, which is given by W. 0. M., Jr., as principal and another as surety, who afterwards is permitted to withdraw his answer, and judgment for damages entered against W. O. M.: Held, W. C. M., Jr., by filing answer, entered a general appearance in the former action, and the court also having jurisdiction of the subject-matter, and thus acquiring jurisdiction of the parties, properly entered judgment against the principal, W. G. M., Jr., and the surety on the bond, and execution under the judgment may not be restrained by the obligors of the bond. Void and voidable judgments and proceedings to set them aside, etc., discussed by Allen, J., citing Doyle v. Brown, 72 N. C., 396; Carter v. Rountree, 109 N. C., 32, and other cases.</p>

<p>1. Executors and Administrators — Surplus Fund — Guardian and Ward.</p> <p>Semble, where the same person has qualified as administrator of the. deceased and also as guardians of his children, and as executor has paid the debts of his testator, the law will transfer the surplus, after paying the debts, from the administrator to the guardian. Ruffin v. Harrison, 81 N. 0., 208; S. e., 86 N. C.', 190.</p> <p>2. Limitation of Actions — Executors and Administrators — Repealing Statutes.</p> <p>Where one has qualified as administrator of the intestate in 1856, and there is evidence that funds came into his hands as such; that in 1884 he died without making final settlement, leaving a will, and his executor duly qualified, advertised for creditors, etc., and made final settlement; that in 1916 the plaintiff qualified as administratrix d. b. n., and brings action for an accounting: Held, the limitations of actions in force prior to 1868, under the Code of 1863, secs. 136, 137, do not apply by reason of the repealing act of chap. 113, Laws of 1891, and the statute has run as a complete bar to the plaintiff’s cause of action. Edwards v. Lemmond, 136 N. C., 330, cited as controlling.</p>

Appeal by defendant from Oline, J., at the February Term, 1917, of MECKLENBURG. In May, 1910, tbe defendant owned 156 8-10 acres of land about 3% miles east of Charlotte, which it had bought for $16,131, and proposed to dispose of the same for suburban home lots. W. S. Lee was president of defendant Realty Company and A. J. Draper and W. H. Hood were directors, and these, with other associates, organized the Mecklenburg-Country Club adjoining the defendant’s land.

<p>1. Attorney and Client — Defense — Bankruptcy — Excusable Neglect — Judgment.</p> <p>A client'does not entirely relieve himself of all responsibility in his action by employing an attorney; and when he has sat through the trial consulting with his attorney, introduces no evidence, and judgment is rendered against him, he may not set the judgment aside upon the plea of excusable neglect in failing to plead or show a discharge in bankruptcy as a defense.</p> <p>2. Appeal and Error — Abandonment of Appeal — Presumptions—Judgments. '</p> <p>Where the defense of a discharge in bankruptcy is relied on as a defense to the action of debt, which the defendant fails to allege, relies upon the plaintiff’s evidence, and judgment is rendered against him, from which he appeals without perfecting the appeal, his abandonment of the appeal is regarded as his acquiescence in the judgment.</p>

Appeal by defendant Guaranty Company from Ferguson, J., at March Term, 1917, of Wilkes. This is a motion by the IT.

Appeal by plaintiffs from Cline, J., at June Term, 1917, of Meck-lenburg. Peter Marshall Brown died in May, 1913. His widow, Daisybel P. Brown, dissented from her husband’s will and was allotted for her dower lands valued at $65,850, besides $2,000 cash as her year’s allowance. She was married to Peter Marshall Brown in 1905 and was 34 years old at the time of his death. The present value of her dower, based on the tables of expectancy, is $56,222.78.

Appeal by defendant from Garter, J., at August Special Term, 1917, of Avebt. Tbe defendant maintained a flag station 200 or 300 yards from the town of Minneapolis, which was at the terminus of a switchback running from the main line at the flag station down to the town of Minneapolis, where defendant had a station and agent. The flag station was used only, for the purpose of allowing passengers to get off and on passenger trains.

Appeal by defendant from Long, J., at tbe May Term, 1917, of GUIL-FORD. This is an action to recover damages for personal injury caused, as tlie plaintiff alleges, by tlie negligence of the defendant street railway company.

Civil action, beard on report of referee and tbe findings of a jury on issues raised by exception to said report, before Lane, J., at April Term, 1917, of TRANSYLVANIA.

Civil actioN, tried before Garter, J., and a jury, at August Special Term, 1917, of Avery. Plaintiff sued for $182.80, balance due on note, tbe excess of tbe debt having been remitted. After tbe evidence was closed, tbe court ordered a nonsuit, and tbe action was dismissed, because tbe claim of tbe plaintiff, as tbe court ruled, was barred by tbe statute of limitations.

<p>1. Pleadings — Special Damage — Allegations—Automobiles.</p> <p>While special damages are required to be pleaded, the rule is not so restrictive as to necessitate special averment of all of the' particulars of a general damage from an injury alleged to have been negligently inflicted; and where the plaintiff alleges that the negligent or reckless driving of the defendant’s automobile frightened his horse and caused him to be thrown from his buggy, severely injurying his back, etc., it is sufficient for the introduction of his evidence that a wen on his back was bruised by the fall and became inflamed and very painful and troublesome, and should the defendant desire a more definite statement, he should ask for a bill of particulars.</p> <p>2. Evidence — Expert Testimony — Damages—Personal Injury.</p> <p>Held, in this action to recover damages for a personal injury alleged to have been negligently inflicted by the defendant, that the expert testimony of physicians that the injury could have caused inflammation of a wen of plaintiff’s back, etc., was competent. Mule Co. v. R. R., 160 N. 0., 252, cited and distinguished.</p> <p>3. Evidence — Nonsuit—Trials.</p> <p>Upon a motion to nonsuit, the evidence is considered most favorably for the plaintiff, giving him the benefit of all just and reasonable inferences to be drawn therefrom, and under the evidence in this case it was properly denied.</p> <p>4. Negligence — Evidence—Other Occurrences — Automobiles.</p> <p>Where there is evidence tending to show that the negligent and reckless driving of defendant’s automobile caused the plaintiff’s horse to throw him from his buggy and injure him, it is competent to show that at the same time and place another horse, being driven ahead of the plaintiff’s horse, also became frightened from the same cause, as corroborative evidence that the defendant’s automobile was then being negligently and recklessly driven, and as a circumstance tending to show that it was in a manner that would frighten animals.</p> <p>5. Automobiles — Negligence—Evidence—Trials—Questions for Jury.</p> <p>Where there is evidence tending to show that the plaintiff’s horse was frightened by the sudden, unnecessary and reckless sounding of the defendant’s automobile horn, which caused the injury complained of, and also evidence that the horn was sounded only as required by the statute, the determination of the jury, under proper instructions, that it was done in the manner contended for by plaintiff, is conclusive.</p>

Special PROCEEDINGS for partition of land, transferred to civil issue docket of Superior Court of Ieedell County, and tried on a plea of sole seizin by defendant, before Justice, J., and a jury, at May Term, 1917, of said court. Verdict and judgment for defendant, and plaintiff excepted and appealed.

CONTROVERSY without action, beard' before Connor, J., at April Term, 1917, of Cumberland. There was judgment for plaintiffs, and defendant administratrix excepted and appealed.

<p>1. Negligence — Evidence—Res Ipsa Loquitur — Trials—Questions for Jury.</p> <p>Tlie plaintiff was employed by the defendant oil company, among other things, to relieve its power-driven elevator, consisting of a chain with small cups thereon, enclosed in a box, from becoming chocked by over-feed, the method being to remove the excess by hand through a small opening in the box. There was evidence tending to show that whenever the elevator chocked it would throw the belt operating it from the shaft pulley and stop the elevator, but at the time of the injury it failed to do so, owing to defective condition in the fastening of the pulley to the shaft, and caused the injury, the subject of the action, while the plaintiff was removing the seed in the manner indicated. There was conflicting evidence as to whether the plaintiff was in charge of. the shafting and pulley, or only required to replace the belt to start the elevator in motion: Held, under the evidence and the doctrine of res ipsa loquitur applying thereto, the issue of defendant’s actionable negligence was for the determination of the jury, and, having been answered by them in plaintiff’s favor, under a proper charge, a cause of action is established.</p> <p>2. Evidence — Res Ipsa Loquitur — Defendánt’s Control.</p> <p>The position that the doctrine of res ipsa loquitur cannot apply when the servant, who has received a personal injury, is in charge of the defective machinery which caused it, is inapplicable, when, upon conflicting evidence and proper instructions, the jury has found as a fact that the principal, and not the injured servant, had its supervision and management under its charge.</p> <p>3. Negligence — Master and Servant — Evidence—Employer and Employee— Inspection — Trials.</p> <p>Where there is evidence tending to show that the plaintiff, an employee, was injured by the unexpected running of a piece of machinery connected by belt to a pulley on defendant’s power-driven shaft, which was caused by the pulley not revolving with the shaft because the fastening had become ineffective from service; that plaintiff’s foreman inspected the machinery daily, which was so placed that he could have seen the defect: Held,, suffleient to fix the defendant with notice of the imperfection, and hold him responsible for his negligent failure to have known it.</p> <p>4. Instructions — Improper Remarks — Statutes.</p> <p>Where the jury has returned for further instructions from the court, which he fairly and impartially gives, his statement to them that they should reconcile the evidence if they could; that they were entitled to their own opinion, which he would not do anything to coerce; that if they could not, the court would “have to do something else,” is not an intimation on the merits or whether “any fact has been fully and sufficiently xiroved,” and unobjectionable under the provisions of the Revisal, sec. 536. •</p>

<p>1. Railroads — Evidence—Nonsuit—Issues—Last Clear Chance.</p> <p>Where there is evidence tending to show that the plaintiff’s intestate had been employed by the contractor oí defendant railroad company for the building of a temporary bridge over a river for the passage of its trains; that owing to a break in the coffer dam the plaintiff was required to work until 4:25 in the morning, when he laid some boards from a chute to the main track, and was lying down thereon, either asleep or dulled by fatigue, when he was run over and killed by defendant’s train, approaching at the speed of 4 miles an hour upon a straight track for 300 or 400 feet, with a dim headlight, upon the lighted bridge: Held, a motion to nonsuit was properly denied, and. the case was correctly submitted to the jury upon the issues of negligence, contributory negligence, and the last clear chance.</p> <p>2. Railroads — Negligence—Last Clear Chance.</p> <p>In the application of the doctrine of the last clear chance to railroads when the injury complained of has been received by a person down upon the track in front of an approaching train, it does not require that the person so injured should have been unconscious at the time, for it may be presented, in proper instances, when the claimant is in a position of such peril that ordinary efforts on his part will not avail to extricate him.</p> <p>3. Evidence — Medical Experts — Railroads—Down on Track.</p> <p>When relevant to the inquiry in an action against a railroad company for negligently running over and killing plaintiff’s intestate while upon the defendant’s track, it is competent for a medical expert, who hade made a professional examination, to testify, in answer to a question, that from the nature, condition and position of the wounds, the intestate was lying-down at the time the injury causing death was inflicted.</p>

<p>1. Actions — Misnomer—Abatement—Appearance.</p> <p>A misnomer of defendant is not a ground for dismissal of tlie action, the remedy being by plea in abatement, giving the correct name, allowing amendment to the summons and pleadings; and where defendant has entered a general appearance, he is concluded thereby.</p> <p>2. Drainage District — Findings—Evidence—Record.'</p> <p>Findings made by the trial court from the record of drainage proceedings, as to certain facts as therein stated, require no further evidence than the record itself contains; and where the record sets forth that exceptions were filed and not appealed from, the burden is on the party claiming to the contrary to show it.</p> <p>3. Counties — Drainage District — Assessments — Judgments — Contempt— Courts — Constitutional Laws.</p> <p>A judgment in proceedings for mandamus against the county commissioners to compel them to pay an assessment of a drainage district for benefit to the public roads therein, that the defendants pay the same, with interest and cost, out of the first moneys coming into their hands, and not otherwise appropriated, is valid and not in violation of the Constitution or statute relating to taxation; and should a rule for contempt be issued, they may show their inability, acting in good faith, to legally comply with the judgment.</p>

<p>MotioN to retax costs in above case, heard by Lane, J., at May Term, 1917, of UeNdeksoN.</p>

<p>1. Railroads — Negligence—Evidence—Questions for Jury — Trials.</p> <p>Where there is evidence tending to show that the plaintiff’s intestate, an engineer on defendant’s locomotive, was killed by a runaway car from defendant’s siding, on a steep mountain grade, coming into collision with his train on the main line; that the car got away from a shipper, on the siding when moving it according to an established custom; that the brake-shoes on this car were insufficient, and the defendant had provided a defective derailer, which failed to work, and that the intestate’s train was running backward for the failure of defendant to provide a “wye” or turntable, and without proper lookout to warn him of the danger, which he could probably have averted by jumping, had the train been properly run with the locomotive ahead, or upon warning given: Held, sufficient, upon the issue of defendant’s actionable negligence.</p> <p>2. Railroads — Negligence—Collisions—Presumptions—Burden of Proof.</p> <p>The death of plaintiff’s intestate, an engineer on defendant’s locomotive, caused by a collision with another car running wild into his train from a siding, raises a presumption of defendant’s negligence, with the burden on defendant to disprove it, and carries the case to the jury.</p> <p>3. Negligence — Concurring Causes — Damages.</p> <p>Where a negligent act, committed by a shipper within a custom permitted by the railroad company, together with the negligent acts of the railroad, concurrently and proximately cause an injury to the latter’s employee, engaged at the time within the scope of his employment, an action may be maintained against the railroad for the entire damage suffered.</p>

Appeal by plaintiffs from Shaw, J., at March Term, 1917, of Buk-combe. Ejectment. The jury responded to the issues as follows: 1. Are the plaintiffs the owners and entitled to the possession of the tract of land described in the complaint ? Answer: Yes. 2. Are the defendants in the wrongful possession of said land, or any part thereof? Answer: Yes. 3. Where is the true dividing line between the lot claimed by the plaintiff and that claimed by the defendant? Answer: 4 to 3. 4.

Civil ACTION, tried before Shaw, Jand a jury, at February Term, 1917, of Buncombe. The action was brought by the plaintiff to recover damages for the destruction of her residence in the city of Asheville.

Civil actioN, tried before Shaw, J., and a jury, at March Term, -1917, of BuNcombe. The action was brought to recover the possession of land, and the following verdict was returned by the jury: 1. Is the plaintiff James J. Bailey the owner of lot B and C on the court map, as alleged in the complaint, or any part thereof, and if so, what part ? Answer: Yes, one-fourth undivided interest in lots B and 0. 2.

Appeal by plaintiff from Lane, J., at the November Term, 1916, of. Mitchell. This is an action to recover land covered by tbe following plat: Tlie plaintiff alleges in bis complaint tbat be is tbe owner of tbe land within the boundaries 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 1, and tbat tbe defendant is in tbe unlawful possession of a part thereof beginning near tbe poplar in line 9, containing about one acre.

Appeal by defendant from Ferguson, J., at August Term, 1917, of YaNoey. This is an action to recover land and to remove a cloud from title. The plaintiffs are the heirs of Mrs. E. J. Angelí, who formerly owned the land. She was the first wife of D. A. Angelí, who, Upon her death, married the feme defendant, who, upon his death, married the male defendant, and is now Mrs. Blankinship.

<p>Negligence — Railroads—Customs—Flying Switch — Contributory Negligence —Trials—Questions for Jury.</p> <p>Where a railroad company uses its spur track to manufacturing plants frequently during the day for switching purposes, and upon which for ten years it has permitted employees of its users there to go in between detached cars standing thereon, or to move the same, as required by their shipping; and there is evidence that, in conformity with this custom, and in the course of his duties, one of these employees, after assuring himself of his safety, is injured while moving one of these cars, by defendant’s locomotive making a “flying switch” and shunting cars upon that on which he was so engaged, without signal or warning of any kind, and without a man' on the car: Held, in the employee’s action against the railroad, the question of plaintiff’s contributory negligence is properly submitted to the jury, under a proper charge, approved in this case, upon the principle' that the plaintiff had the right to assume that the defendant’s employees on the locomotive would not violate the duty they owed him, or be guilty of negligent acts in this respect that would cause him injury. Wyatt v. R. R., 156 N. C., 813; Hudson v. R. R., 142 N. C., 198, cited and applied.</p>

<p>MotioN to retax costs in above case.</p>

Civil actioN, tried before Garter, J., at August Term, 1916, of Oa-baReus, upon these issues: 1. Are the plaintiffs the owners and entitled to the possession of the property, wheat and oats, as alleged in the complaint ? Answer: Yes. 2. What is the value of the property seized? Answer : $92.50. The court rendered judgment against defendant for the possession of the property and its value, $92.50.

Civil actioN, tried before Ferguson, J., at January Term, 1917, of Wiliíes, upon these issues: 1. Did Charles A. Willis represent to defendant that there were about 2,000 bearing trees on said land ? Answer: Yes. 2. Was said representation false and fraudulent? Answer: Yes. 3. Was defendant induced to purchase said land by^ said false and fraudulent representation? Answer: Yes. 4. What damage, if any, did defendant sustain of plaintiff by reason of said fraud?

Civil actioN to recover damages for tlie alleged negligent killing of plaintiff's intestate. Motion to nonsuit was sustained. Plaintiff appealed.

Civil actios, tried before Devin, J., and a jury, at March Term, 1917, of Wake. The action was to recover damages for injuries caused by alleged negligence of defendant in failing to stop bis auto truck when signalled to do so, as required by chapter 107, Laws 1913. On three issues submitted, of negligence, contributory negligence, and damages, there was verdict, for defendant on the first issue. Judgment on the verdict, and plaintiff excepted and appealed.

Civil actioN, tried before Connor, J., at April Term, 1917, of Robe-soN, upon exceptions to report of Charles G-. Rose, referee. The court adopted the findings of fact of the referee as well as his conclusions of law, and confirmed the report and rendered judgment in favor of defendants. Plaintiffs excepted to the judgment and appealed.

Appeal by defendant from Harding, J., at the February Term, 1917, of FORSYTH. This is an action to recover $25, balance due on the purchase price of a gasoline engine, and $136.21 for services rendered by the plaintiff to the defendant in sawing wood. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Appeal by defendant from Kerr, J., at the March Term, 1917, of DURHAM. This is an action to recover the value of services rendered in procuring a pardon for the defendant. There was a verdict and judgment for the plaintiffs, and the defendant appealed.

AotioN before Long, J., at April Term, 1917, of GuilroRD. On the morning of 10 November, 1915, plaintiff was driving in his buggy north on Elm Street, on the right-hand side of North Elm Street, and his horse turned west of his own accord into Gaston Street, which intersects North Elm at a right angle. To do so it was necessary to cross the tracks of defendant.

Civil action, tried at May Term, 1917, of Sampson, before Lyon, J upon these issues: 1. Did the defendant J. II. Pugh contract and agree to sell and convey to the said plaintiff the timber, rights, and privileges for the sum of $6,000 upon the lands described in the complaint? Answer: Yes. 2. If so, was the purchase price agreed upon to be paid in cash? Answer: No. 3. Did the defendant J. H. Pugh fail and refuse to comply with his said contract and agreement? Answer: Yes. 4.

PROCEEDINGS in sale of land for partition, transferred to civil issue docket and tried on issues submitted before Stacy, J., and a jury, at February Special Term, 1917, of Harnett. Defendants having plead sole seizin, the jury rendered a verdict that plaintiffs were owners of an interest in the land set out in the petition and they and defendants were tenants in common in said land. Judgment on the verdict, and defendants excepted and appealed.

Appeal by defendant from Connor, Jat December Term, 1916, of New HaNOVER. This is an action to recover $1,269.35, alleged to be due by account for goods sold and delivered. The defendant denied that it was indebted to the plaintiff. There was a verdict and judgment for the defendant, and the plaintiff excepted and appealed.

<p>Appeal by defendants from Webb, J., at March Term, 1917, of Scot-LAND.</p>

<p>Appeal by defendant from Harding, J., at May Term, 1917, of Pitt.</p>

ActioN to restrain the levy and collection of a tax in a special school-tax district in Pasquotank: County, upon the ground that a majority of the votes cast at the election was not in favor of the proposition. A restraining order was issued, and at the trial a verdict was returned by the jury in favor of the defendants.

<p>INDICTMENT tried before Long, Jat August Term, 1917, of Moose.</p> <p>Defendant was convicted, and appealed from the judgment.</p> <p>The charge against the defendant was that he had manufactured liquor, contrary to the statute prohibiting the same. There was evidence tending to show that defendant drove his father’s wagon to the place of manufacture, over “a dim road,” when it was dark. He left the road and drove to a house nearby and whistled two or three times, and then drove to the branch near the still, or where the still had been. He then left his wagon and went to the place where there were five stands of beer. He returned to the wagon to quiet his horses, and then went back to where the beer was, and he was removing a plank from the top of the beer barrels when he was arrested by the officers who had been watching his movements. He stated! that he was paid by a man for hauling the beer away. He had a blanket and oil-eloth, which he stated that he intended to use for covering the barrel “to prevent the beer from sloshing out.” He also had a rifle and cold-chisel. The rifle was loaded. There was a hammer lying on the furnace, but he denied knowing anything about it, though the officers said it had been placed there within a few minutes. He had a gallon jug in his wagon and some tow sacks. There were indications at the place that a still had been in operation there very recently. There was evidence of stealth and secrecy about defendant’s movements when he drove up to the place where the beer was and started to remove it. Defendant was convicted, and appealed.</p>

Appeal by defendant from Long, J., at tbe July Term, 1917, of RICHMOND. Tbe defendant was convicted of selling intoxicating liquor to W. E. Reynolds, and appealed from tbe judgment of imprisonment upon tbe verdict.

The case was brought forward on motion of solicitor, and motion for judgment renewed, the defendant being present and also represented by counsel. The court sentenced the defendant to twelve months confinement in the jail of Wayne County. The defendant excepts and appeals.

<p>1. Jurors — Court’s Discretion — Discharge of Jurors — Retaining Juror — Tales Jurors.</p> <p>The trial judge, in Ms discretion, may discharge any jurors or jury, and is not required to reserve one juror of the original panel to “build to,” before directing the sheriff to summons tales jurors as authorized by Revisal, sec. 1967, amended by chapter 15, Laws 1911; chapter 210, Laws 1915.</p> <p>2. Same — Bystanders.</p> <p>Where the regular jurors have been discharged by the trial judge for the term, evidently under the impression that the business of the court was over, and on the following day there, remains a criminal case regularly coming up for trial on a defect of jurors, the judge, within his discretion, is authorized to direct the sheriff to summons “other jurors, being freeholders within the county,” whether within or without the courthouse. Revisal, sec. 1967, amended by chapter 15, Laws 1911; chapter 210, Laws 1915.</p> <p>3. Jurors — Motions—Exceptions—Challenge to Array.</p> <p>Where the regular jurors have been discharged for the criminal term, and talesmen have been summoned to try another case regularly for trial at that term, a denial of defendant’s motion for continuance, and forcing him into trial with the jury thus constituted, does not constitute a challenge to the array.</p> <p>4. Intoxicating Liquors — Criminal Law — Prohibition—Unlawful Sales — Evidence — Statutes.</p> <p>Upon trial for the sale of intoxicating liquors in bottles to the prosecuting witness, in evidence in the case, it is competent for the sheriff to testify that he had found a box and sack of bottles just outside of defendant’s store, corresponding in appearance and labels with the bottles the prosecuting witness testified he hdd purchased from the defendant, when the box and bag of bottles are also in evidence.</p>

<p>1, Appeal and Error — Instructions—Contentions—Objections and Exceptions.</p> <p>Objections to tbe statement by tbe judge of tbe contention of a party must be made to bim at tbe time, so that if it is erroneous be may have an opportunity to correct it.</p> <p>2. Courts — Instructions—Contentions—Improper Remarks.</p> <p>In tbis case tbe State relied upon tbe evidence of a witness wbo bad been employed as a detective to convict tbe defendant of a sale of liquor hi violation of tbe prohibition law, with conflicting contentions upon tbe evidence that tbis witness bad been previously convicted of violating tbe same law and was not worthy of credence. A statement of tbe contentions of tbe parties by tbe judge to tbe jury, in bis own language, that “Birds of a feather will flock together”; that tbe witness, “having been convicted of unlawful sales of whiskey before tbis trial, would be likely to know wbo sells liquor in violation of tbe law,” is not held objectionable as an improper remark.</p> <p>3. Evidence — Credibility—Witnesses—Jurors—Trials.</p> <p>It is within the province of the jury to weigh the testimony and to sift the true from the false, and they may believe a witness of bad character in preference to a witness of good character.</p> <p>4. Jurors — Selection—Right of Party — Discharge of Jurors — Courts.</p> <p>The right of a defendant in a criminal action is to reject jurors and not to select them, and he cannot complain that the court has discharged jurors on the day preceding the trial of his case, unless it is made to appear that he has in some legal way been prejudiced.</p>

INDictmeNt, April Term, 1917, of Okange, Kerr, J. Tbe jury rendered tlie following special verdict: “That tbe defendant and M. J. Jeffreys, in December, 1916, purchased from one Michael, in Orange County, 2% gallons of wine each, in sealed jugs, containing 2% gallons; that said purchase and delivery took place on the premises of the said Michael, in Orange County, and the wine had been manufactured by Michael during the past twelve months, from grapes grown on his own…

<p>OeimiNal action, tried before Whedbee, J., and a jury, at May Term, 1917, of Wayne.</p> <p>Defendant was indicted for secret assault, and at the conclusion of the State’s evidence, tendered a plea of guilty of assault with a deadly weapon, which plea was accepted by the State.</p> <p>The evidence tended to show an aggravated assault with a deadly weapon, firing twice with a pistol at the prosecutor, one John W. Howell, and at close range, inflicting a slight wound in the hand.</p> <p>The court sentenced defendant to four years confinement in the penitentiary, and defendant excepted and appealed.</p>

INDICTMENT for obstructing a cartway, tried before Connor, J., at March Term, 1917, of Bladen. The jury returned a special verdict. The court pronounced judgment, finding the defendant guilty. From the sentence of the court the defendant appealed.

CRIMINAL action, tried before Kerr, J., and a jury, at May Term, 1917, of Durham. The defendant was charged with the following crimes: 1. That he engaged in the business of selling, exchanging, bartering, or giving away spirituous liquors, for the purpose of gain, directly or indirectly. 2. That he had in his possession twenty-seven pints of such liquors for the purpose of sale. 3.

<p>INDictmbNt for homicide, tried before Justice, J., at August Term, 1917, of Caldwell.</p> <p>The defendant was convicted of murder in first degree, and from sentence of death appeals.</p>